HomeMy WebLinkAboutReso 52-07 Berkeley Land Purch and Sale Agmt (2)
RESOLUTION NO. 52 - 07
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING A PURCHASE AND SALE AGREEMENT AND
ASSIGNMENT AND ASSUMPTION OF LEASES AGREEMENT WITH
BERKELEY LAND cO. FOR A PROPERTY LOCATED AT
11759 DUBLIN BOULEVARD
WHEREAS, in August 2006, the City Council adopted Resolution 149-06 approving General
Plan Amendment, the Parks and Recreation Master Plan May 2006 Update (Resolution 150-06) and the
Dublin Historic Park Master Plan (Resolution 151-06); and approval of the Dublin Village Historic Area
Specific Plan; and
WHEREAS, the General Plan Amendment and the Specific Plan change the land use designation
of the Dublin Square Shopping Center from Retail/Office to Parks/Public Recreation and include the
property within the proposed expanded Historic Park; and
WHEREAS, the Dublin Village Historic Area Specific Plan's goal is to protect the historic
resources in the area; guide design of new development; and enhance the area's image as a historic
district; and
WHEREAS, the City of Dublin proposes to add additional park lands and expand the Dublin
Historic Park; and
WHEREAS; in order to accomplish this goal, it is necessary for the City to acquire the property in
fee located at 11759 Dublin Boulevard.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Dublin approves
the Purchase and Sale Agreement and the Assignment and Assumption of Leases Agreement with
Berkeley Land Co., attached hereto.
BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute the
agreements.
PASSED, APPROVED AND ADOPTED this 1 st day of May, 2007, by the following vote:
AYES: Councilmembers Hildenbrand, Oravetz, Sbranti and Scholz, and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
auf ~~
~\J+::J City Clerk
Reso No. 52-07, Adopted 5/1/07, Item 4.9
Page 1 of 1
PURCHASE AND SALE AGREEMENT BETWEEN
BERKELEY LAND CO., INC.
AND THE CITY OF DUBLIN
THIS PURCHASE AND SALE AGREEMENT (hereinafter "Agreement),
dated May 2,2007, (the "Effective Date") is by and among the City of Dublin, a
municipal corporation ("Buyer") and Berkeley Land Co., Inc., a California Corporation
("Seller").
RECITALS
A. WHEREAS, SeHer is the owner of a parcel of real property fronting
Dublin Boulevard in the City of Dublin, County of Alameda, State of California,
commonly referred to as 11759 Dublin Boulevard, Dublin Square Shopping Center,
together with any right, title and interest of Seller in and to all easements and rights-of-
way in, on, across, in front of, abutting or adjoining said real property (APN: 941-1560-
007 -01) (the "Property"), more particularly described in Exhibit "A" and depicted in
Exhibit "B" attached hereto;
B. WHEREAS, Buyer has approved plans for a proposed project for
the expansion of the existing Historic Park and adopted a master plan for the Dublin
Historic Park Project (the "Project") and a portion of the Project falls within the Property;
C. WHEREAS, Buyer desires to acquire the Property in fee, for use in
connection with the development of the Project;
D. vVHEREAS, Buyer and Sener have agreed to enter into this
Agreement in lieu of condemnation, and this purchase and sale is directly and expressly
under threat of eminent domain.
TERMS OF AGREEMENT
In consideration of the mutual covenants and conditions contained herein,
the parties hereto agree as follows:
1. PURCHASE. Seller shall sell to Buyer and Buyer shall purchase from
Seller, the Property on all of the terms and conditions set forth in this Agreement.
2. PURCHASE PRICE. The purchase price (hereinafter "Purchase Price")
for the Property is SEVEN MILLION, EIGHT HUNDRED SIXTY-FIVE THOUSAND
DOLL/-\RS AND NO ,Ef\lTS ($7,865,000).
3. PAYMENT OF PURCHl.\SE PRiCE. The Purchase Price shall be payable
all in cash upon the close of escrow.
4. Buyer shall cause this Agreement to be placed onto the City of Dublin City
Council meeting agenda for May 1, 2007. The Buyer's obligation to purchase the
Property from Seller shall be contingent upon the approval of this Agreement by the City
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of Dublin City Council on May 1, 2007. If such City Council for the City of Dublin does
not approve of this Agreement on May 1, 2007, this Agreement shall automatically
terminate and thereafter be of no force or effect whatsoever.
5. Prior to the Close of Escrow the title company shall be prepared to provide
a CL T A standard owner's policy of title insurance in favor of Buyer free and clear of all
exceptions to title other than the Approved Exceptions and the Leases, attached to the
"Assignment and Assumption of Leases" attached hereto, referred to below.
6. On the Effective Date Buyer and Seller shall cause the opening of escrow
(the "Escrow") by delivering a fully-executed copy of this Agreement to North American
Title Company, 4255, Hopyard Road, Suite 1, Pleasanton, California, 94588, Attn: Pam
Thompson, Title Officer ("Escrow Holder" or "Title Company").
7. Escrow is to close on or before May 9,2007. In the event escrow fails to
close on or before May 9, 2007, Seller's obligation to sell the Property to Buyer and
Buyer's obligation to purchase the Property from Seller under the terms of this
Agreement shall terminate.
8. By the end of business May 4, 2007, Seller shall deposit into Escrow C?
Grant Deed to the Property as provided herein and attached hereto as Exhibit "e," in
favor of Buyer.
The term "Close of Escrow" or "Closing" as used herein shall mean the date
necessary instruments of conveyance for the sale of the Property to Buyer are recorded
in the office of the County Recorder for the County of Alameda and the date the
Purchase Price is paid to Seller.
9. Concurrent with the Close of Escrow, Buyer and Seller shall each execute
the ")\ssignment and Assumption of Leases" attached hereto as Exhibit"D" whereby the
Seller assigns to the Buyer all of Seller's right, title, and interest in and to the Leases
attached thereto and whereby Buyer agrees to assume each and every obligation of
Seller in connection with the Leases which occurs on or after the Close of Escrow.
10. By the end of business May 4,2007, Buyer shall deposit cash or
immediately available funds (wire transfer, cashier's check) in the amount of the
Purchase Price into Escrow.
11. ESCROW INSTRUCTIONS. This Agreement shall be construed as
Escrow Instructions to the Title Company and the parties agree to execute any other
additional or supplemental Escrow Instructions reasonably requested by the Title
Company provided, however, in no event shali any such supplemental instructions
supercede or contradict the provisions of this Agreement and in the event of any
inconsistency between the terms of this J\greement, on the one hand, and the terms of
any such supplemental Escrow Instructions, on the other hand, the terms of this
I-\greement shall supercede and be contiOlling.
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12. All of the Title Company's escrow fees and costs and all deed taxes,
recording fees and premiums for any title insurance policy, all documentary transfer
taxes, and all personal property taxes and sales taxes owed by the Seller, if any,
incurred in connection with the sale of the Property to Buyer as contemplated by this
Agreement shall be paid solely by Buyer
Any other Closing costs not specifically referred to above shall be borne solely by
Buyer.
13. Seller's current property taxes, if unpaid, shaH be prorated to date of Close
of Escrow on the basis of a 365 day year in accordance with Tax Collector's proration
requirements, together with penalties and interest, if said current taxes are unpaid after
April 1 Oth. At Close of Escrow, a check payable to the County Tax Collector for Seller's
prorated portion of taxes shall be forwarded to Buyer with closing statement.
14. Any property taxes which have been paid by Seller, prior to opening of this
Escrow, shall not be prorated between Buyer and Seller, but Seller shall have the sole
right, after Close of Escrow, to apply to the County Tax Collector of said county for
refund. This refund would apply to the period after Buyer's acquisition, pursuant to
Revenue and Taxation Code Section 5096.7.
15. All items of income or expense from the operation of the Property
including rent in connection with the Leases shall be prorated by the parties as of the
Closing Date. Any income or expense which cannot be ascertained with certainty as of
the Closing Date shall be prorated on the basis of the parties' reasonable estimates of
such amounts and shall be the subject of a final proration as soon thereafter as the
precise amounts can be ascertained but in no event later than three (3) months after the
Closing. A statement with the agreed prorations shall be delivered to the Escrow
Company. SeHer and Buyer shall each cooperate with the other diligently and promptly
to correct any errors in computations or estimates under this Section provided Seiler or
Buyer delivers written notice to the other party of such error within the 3-month period.
Seller and Buyer shall promptly pay to the party entitled thereto any refund, credit or
other payment. This Section shall survive the Closing.
16. CLOSING. When the Title Company has received all documents and
funds identified in Sections 2 and 8, and has received written notification from Buyer
and Seller that all conditions to Closing have been satisfied or waived, and the Title
Company is irrevocably committed to issue the Title Policy, then, and only then, the Title
Company shall:
(A)
Record the Grant Deed in the Official Records of Alameda County;
(B\
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Issue the Title Policy to Buyer;
(C) Deliver to Buyer: (i) conformed copies (showing all recording
information thereon) of the Grant Deed (ii) counterpart originals of th':3 Lease
Assignment Agreement, and (iii) the Nonforeign Certificates.
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(D) Deliver to Seller: (i) conformed copies (showing all recording
infprmation thereon) of the Grant Deed, (ii) the Purchase Price (as adjusted pursuant to
the provisions of this Agreement) and (iii) a counterpart original of the Lease
Assignment Agreement.
The Title Company shall prepare and sign closing statements showing all
receipts and disbursements and deliver copies to Buyer and Seller and, if applicable,
shall file with the Internal Revenue Service (with copies to Buyer and Seller) the
reporting statement required under Section 6045(e) of the Internal Revenue Code.
17. In the event Seller is obligated to return any security deposits to any of the
tenants in connection with any of the Leases, Buyer shall receive a credit in Escrow in
the amount of any such security deposits which are payable to any such tenants.
18. in addition to the Purchase Price, Buyer shall pay to Seller at Closing an
amount of Five Thousand Dollars ($5,000.00) in connection with appraisal services
conducted pursuant to California Code of Civil Procedure section 1263.025.
19. Buyer and Seller each shall pay their own attorneys' fees in connection
with negotiation this Agreement and the conveyance of the Subject Property.
20. All funds received in this Escrow shall be deposited with other Escrow
funds in a general Escrow account(s) and may be transferred to any other such Escrow
trust account in any state or national bank doing business in the State of California.
21. Buyer and Seller agree to execute and deliver to Escrow Holder any
additional or supplementary instructions as may be necessary or convenient to
complete this transaction.
22. INSPECTION OF PROPERTY.
(A) Buyer acknowledges that previously Seller has made available to
Buyer and Buyer's consultants, agents and employees (collectively, "Buyer's
Representatives"), reasonable access to the Property for such inspections,
examinafions, tests, or any other investigations of the Property ("Inspections") as Buyer
deemed appropriate for the purposes of conducting an appraisal and Phase I.
(B) Buyer shall indemnify, defend and hold Seller and Seller's agents
and employees harmless from and against any Claims arising out of Buyer's inspection
of the Property or the Property Files, except to the extent (i) the Claims arise from the
acts or omissions of Seller, its agents or employees, or (ii) the Claims arise from matters
discovered by Buyer during its investigations and which Buyer did not cause,
exacerbate or otherwise contribute to. This indemnity shall survive the Closing or
termination of this Agreement.
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23. BUYER'S DUTY TO INVESTIGATE. Buyer represents, warrants and
covenants that:
(A) Buyer has conducted, to the extent Buyer deems appropriate, an
investigation of the financial, legal, title; physical and environmental condition of the
Property, (collectively, "Condition of the Property"), including without limitation: (i) the
design and current physical condition of the Property, (ii) the boundaries and area of the
Property and the state of title to the Property, (iii) any settlement or subsidence of any
fill or filled ground on the Property or settlement or subsidence of construction thereon,
if any, (iv) all governmental laws, statutes, codes and regulations to which the Property
is or may be subject in the future, and the extent to which the Property is in compliance
therewith, (v) any governmental permits or approvals obtained or to be obtained in
connection with the present or proposed use of the Property; (vi) the availability of
utilities and services; (vii) Buyer's contemplated use of the Property and the fitness of
the Property for any present or proposed use including, but not limited to the parking
available on the Property and, (viii) the presence of Hazardous Materials on or about
the Property and, in general, its environmental condition, and whether or not any
Hazardous Materials may have migrated onto the Property from one or more adjacent
or nearby properties, and (ix) the present or past income and expense and the financial
results of the operations of the Property and the prospects for future revenues from the
Property.
. (B) Buyer acknowledges that prior to the Closing Buyer will have had
the opportunity (i) to review all of the Property Files provided by Seller, (ii) to thoroughly
inspect the Property and (iii) to retain any and all representatives of its choice and
expense t9 assist in its due diligence evaluation of the property and that Buyer is
purchasing the Property in its "AS IS", "WHERE IS" condition and "WITH ALL FAULTS"
and without any representations or warranties whatsoever from Seller except as may be
expressly set forth in this Agreement..
24. Buyer acknowledges that it has had every opportunity to conduct whatever
inspection and review of the Property that Buyer deemed relevant to Buyer's decision to
purchase the Property. Subject to the other provisions of this Agreement, including the
Seller representations in Section 29(A), (1) Buyer will purchase the Property subject to
each and every Condition of the Property, (2) Buyer assumes the risk that an adverse
Condition of the Property may not have been revealed by Buyer's investigation, (3)
Seller has no obligation to correct or compensate Buyer for any Condition of the
Property, and (4) by acquiring the Property, Buyer shall be deemed to have waived all
objections to the Condition of the Property, even if any Condition of the Property would
not have been disclosed by inspection or review.
25. RELEASE AND \tV AI\lER.
(A) Except for damages suffered by Buyer directly and solely as a
result of a breach by Seller of any express representation of Seller which is materially
false, Buyer hereby fully and forever releases, acquits and discharges Seller of and
from, and hereby fully and forever waives:
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(i) Any and all claims, actions, causes of action, suits,
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whatsoever, WHETHER KNOWN OR UNKNOWN, direct or indirect, foreseeable or
unforeseeable, absolute or contingent ("Claims"), that Buyer now has or may have or
which may arise in the future arising out of, directly or indirectly, o~ in any way
connected with: (A) any condition of environmental contamination or pollution at the
Property, however and whenever occurring (including, without limitation, the
contamination or pollution of any soils, subsoil media, surfacewaters or groundwaters at
the Property); (B) to the extent not already included in (A), above, the prior, present or
future existence, release or discharge, or threatened release, of any Hazardous
Materials at the Property, however and whenever occurring (including, without limitation,
the release or discharge, or threatened release, of any Hazardous Materials into the air
at the Property or into any soils, subsoils, surfacewaters or groundwaters at the
Property); (C) the violation of, or non-compliance with, any Environmental' Requirement
or other Applicable Law now or hereafter in effect, however and whenever occurring
with respect to the Property; (0) the condition of the soil at the Property; (E) the
condition of any improvements at the Property, including, without limitation, the
structural integrity and seismic compliance of any such improvements; or (F) to the
extent not already covered by any of the foregoing clauses (A) through (E), above, the
use, maintenance, development, construction, ownership or operation of the Property
by Seller or any predecessor(s )-in-interest in the Property of Seller, or by any tenant or
other occupant of any portion of the Property.
(ii) All damages (including, without limitation, damages for
death, personal injury, emotional distress, or injury to property, the environment or
natural resources), occurring on the Property, foreseeable or unforeseeable, including,
without limitation, compensatory damages, consequential damages, punitive damages,
and the cost of demolition and rebuilding of any improvements; losses (including,
without limitation, lost profits, any diminution in the value of the Property, and any
damages for loss of business or restriction on use); costs (including, without limitation,
all costs and expenses related to the investigation, monitoring, remediation or other
cleanup of Hazardous Materials or which are incurred in order to comply with any
Environmental Requirement [including, without limitation, any governmental order,
decree or directive] or other Applicable Law now or hereafter in effect); liabilities
(including, without limitation, liability to any third person or governmental authority to
indemnify, reimburse or otherwise compensate such person or authority for anything);
judgments; fines; penalties; fees (including, without limitation, fees for the services of
attorneys, consultants, contractors, engineers, experts, laboratories and other
professionals); expenses. or other compensation whatsoever arising out of, directly or
indirectly, or in any way connected with any of the matters described in section 24 (A)(i),
above.
(8) Without limiting the ;:;cope or generality of the foregoing release and
waiver provisions, those provisions shall specifically include and cover (1) any claim for
or right to indemnification, contribution or other compensation based on or arising under
CERCL.A, (hereinbelow defined), RCRA (hereinbelow defined), the Carpenter-Presley-
Tanner Hazardous Substances Account Act or any similar or other Applicable Law now
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or hereafter in effect, and (2) any claim for or based on trespass, nuisance, waste,
negligence, negligence per se, strict liability, ultrahazardous activity, indemnification,
contribution or other theory arising under the common law of the State of California (or
any other applicable jurisdiction) or arising under any Applicable Law now or hereafter
in effect.
For purposes of this Section 25, the word "at" also means on, under, in, above,
and in the vicinity of.
(C) Waiver of Civil Code Section 1542: With respect to all releases
made by Buyer, Buyer hereby waives the application of California Civil Code Section
1542 and hereby verifies that it has read and understands the following provision of
California Civil Code Section 1542:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him
or her must have materially affected his settlement with the
debtor."
Buyer:
All of the provisions of this Section 25 shall survive the Close of Escrow.
26. HAZARDOUS MATERIALS; ENVIRONMENTAL REQUIREMENTS.
(A) Hazardous Materials. As used herein, the term "Hazardous
Materials" means any and all substances, chemicals, wastes, sewage, materials or
emissions which are now or hereafter regulated, controlled, prohibited or otherwise
affected by any local, state or federal statute, ordinance, code, rule, regulation, order,
decree, permit or other law now or hereafter in effect including, without limitation, (i) any
substance defined as a "hazardous substance", "hazardous material", "hazardous
waste", "toxic substance", or "air pollutant" in the Comprehensive Environmental
Response, Compensation and Liability Act, as amended ("CERCLA"), 42 U.S.C. SS
9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. SS 1801, et seq.,
as amended, the Resource Conservation and Recovery Act, as amended ("RCRA"), 42
U.S.C. SS 6901, et seq., the Federal Water Pollution Control Act, as amended, 33
U.S.C. SS 1251, et seq., or the Clean Air Act, as amended, 42 U.S.C. SS 7401, et seq.;
(ii) any substance the presence of which at the Property causes or threatens to cause a
nuisance upon the Property or to adjacent properties or poses or threatens to pose a
hazard to the health or safety of human beings; (iii) any substance the presence of
which at the Property or at nearby or adjacent properties could constitute a trespass;
(iv) any substance defined as a "hazardous substance", "hazardous waste", "hazardous
substance", "extremely hazardous waste", "RCF(A hazardous waste", "waste" or
"hazardous material" in SS 251151, 25117, 25122.7, 25120.2,25124,25281, 25316 or
25501 of the California Health and Safety Code, as amended, or listed pursuant to S
25140 of the California Health and Safety Code, as amended; (v) any chemical or other
substance regulated by the California Safe Drinking Water and Toxic Enforcement Act
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of 1986, California Health and Safety CodeSS 25249.5, et seq., as amended; (vi) any
substance defined as a "waste" or "hazardous substance" in S 13050 of the California
Water Code, as amended; and (vii) any substance listed in California Labor Code S
6501.7 or 9004, as amended. In addition to the foregoing, to the extent not already
included therein, the term "Hazardous Materials" also means (A) asbestos (including,
without limitation, asbestos containing materials); (B) flammable, explosive, infectious,
carcinogenic, mutagenic, or radioactive materials; (C) petroleum or any substance
containing or consisting of petroleum hydrocarbons (including, without limitation,
gasoline, diesel fuel, motor oil, waste oil, grease or any other fraction of crude oil); (D)
paints and solvents; (E) lead; (F) cyanide; (G) DDT; (H) printing inks; (I) acids; (J)
pesticides; (K) ammonium compounds; (L) polychlorinated biphenyls; (M) radon and
radon gas; and (N) electromagnetic or magnetic materials, substances or emissions.
(B) Environmental Requirements. As used herein, the term
"Environmental Requirements" means all present and future statutes, regulations, rules,
ordinances, codes, licenses, permits, orders, approvals, plans, authorizations,
concessions, franchises, and similar items, of all governmental agencies, authorities,
departments, commissions, boards, bureaus, or instrumentalities of the United States,
any state (including, without limitation, the State of California) and any political
subdivisions thereof, and all applicable judicial, administrative, and regulatory decrees,
judgments, and orders, in any way relating to the protection or other regulation of
human health or safety, natural resources or the environment, including, without
limitation, all of the statutes, ordinances, codes, rules, regulations, orders, decrees,
permits and other laws referred to above.
27 Materiality. The provisions of this Section 23, 24, 25 and 26 are material
and included as a material portion of the consideration given by Buyer to Seller in
exchange for Seller's performance under this Agreement.
28. REPRESENTATIONS AND WARRl\NTIES.
(.A) Seller's Representations and VVarranties. Seller represents and
warrants Buyer as of the Execution Date and as of the Closing Date that:
(i) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, and does not have
nonforeign status under California Revenue and Taxation Code Sections 18692 and
18668.
(ii) To the best of Sellers' knowledge, there are no actions,
suits, material claims, legal proceedings, or any other proceedings affecting the Subject
Property or any portion thereof, at law, or in equity before any court or governmental
agency, domestic or foreign.
(iii) Until the Close of Escrow, Seller shall maintain the property
in its current condition and state of repair and maintenance, and shall perform all of their
obligations under any service contracts or other contracts affecting the property.
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(iv) Until the Close of Escrow, Seller shall not enter into any new
Lease of any portion of the Subject Property.
(v) Until the Close of Escrow, Seller shall not intentionally do
anything which would impair Seller's title to the Property.
(vi) To the best of Seller's knowledge, neither the execution of
this Agreement nor the performance of the obligations herein will conflict with, or breach
any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or
other agreement or instrument to which Seller's property may be bound, if any.
(vii) Until the Close of Escrow, Seller shall, upon learning of any
fact or condition which would cause any of the warranties and representations of these
Representations and Covenants of Sellers not to be true as of Close of Escrow,
immediately give written notice of such fact or condition to Buyer.
(B) Buyer's Representations and Warranties. Buyer represents and
warrants that: (i) Buyer is duly organized validly existing, and in good standing under
California law; (ii) the execution, delivery and performance of this Agreement and any of
the other documents executed and delivered on behalf of Buyer have been duly and
validly authorized by all necessary action and proceedings; (iii) the persons executing
this Agreement and any of the other documents executed and delivered on behalf of
Buyer are duly appointed and authorized by Buyer to execute such documents; and (iv)
no consent from or notice to any governmental authority, other than the City Council of
the Buyer, or any other person or entity is required to permit Buyer to execute, deliver
and perform this Agreement in accordance with its terms.
(C) Survival. The representations and warranties of Seller under this
Section shall survive the Closing for one year.
29. TITLE INSURANCE. North American Title Insurance Company ('Title
Company") has provided Buyer with a Preliminary Title Report for the Subject Property
dated April 2, 2007 for~ 1759 Dublin Boulevard (APN 941-1560-007-01) (herein the
"Preliminary Title Report"). Buyer has reviewed the Preliminary Title Report and the
Buyer specifically approves of each exception to title set forth in the Preliminary Title
Report, except, Exception NO.5 which must be cleared prior to Close of Escrow. All
Exceptions to which the Buyer does not object to shall be herein referred to as
"Approved Exceptions".
30. Buyer hereby specifically agrees and acknowledges that it has agreed to
purchase the Property from the Seller by assuming each and every obligation arising as
of or after the date of Close of Escrow of Seller in all of the Leases. Without limiting the
generality of the foregoing, Buyer specifically agrees and acknowledges that in the
event any of the tenants ("Tenants") in connection with any of the Leases are entitled to
receive any compensation in connection with the Buyer's threatened condemnation of
the Property or any actual condemnation which may take place following the Close of
Escrow or in connection witrl the termination, cancellation of any of the Leases or the
Buyer's refusal to extend the term of any of the Leases the Buyer shall be solely
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responsible for the payment of any and all money or other compensation any of the
tenants of any of the Leases may be entitled to. Buyer acknowledges that Seller would
not have entered into this Agreement without the Agreement of Buyer to take full
responsibility for all obligations owing in connection with the Leases including but not
limited to, any sums with any such tenants may be entitled to in connection with the .
Buyer's development of the Project.
The Buyer shall indemnify, defend and hold Seller harmless from and against
any and all losses claims, liabilities, judgments, liens, expenses or other costs which
Seller may incur or otherwise be subject to in connection with any of the Leases
occurring after the Close of Escrow.
31. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. Except as
expressly provided otherwise in this Agreement, it is understood and agreed that neither
Buyer nor Seller, nor any of their agents, employees, or contractors, has made and is
not now making, and Seller and Buyer have not relied upon and will not rely upon
(directly or indirectly), any warranties, representations, or guaranties of any kind or
character, express or implied, oral or written, past present or future, with respect to the
Subject Propeliy.
32. PERMISSION TO ENTER ON PREMISES. Seller hereby grants to Buyer,
or its authorized agents, permission to enter upon the Property at all reasonable times
prior to Close of Escrow for the purpose of making necessary or appropriate
inspections.
33. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which so executed shall, irrespective of the date of its execution and delivery,
be deemed an original, and all such counterparts together shall constitute one and the
same instrument.
34. LOSS OR DAMAGE TO IMPROVEMENTS. Loss of damage to the real
property or any improvements thereon, by fire or to other casualty, occurring prior to the
Closing shall not relieve Buyer of its obligation to purchase the Property as
contemplated by this Agreement. The parties hereto acknowledge that Buyer intends to
demolish the improvements on the Propecty sometime following the Close of Escrow in
order for Buyer to develop its Project and that the improvements on the Property have
no real value to Buyer. In the event that loss or damage to the real property or any
improvements thereon, by fire or other casualty, occurs prior to the Closing, Buyer may
elect to require Seller to assign to Buyer any insurance proceeds otherwise payable to
Seller in connection with any such casualty
35. CLOSING STATEMENT. Seller instructs Escrow Agent to release a copy
of Sellers' statement to Buyer (c/o Elizabeth Silver, Meyers, Nave, Riback, Silver and
Wilson, 555 1ih Street, Suite 1500, Oakland, CA, 94607).
36. EMINENT DOfv1Alf\! DISMISSAL. SeHer and Buyer acknowiedge that this
transaction is a negotiated settlement in lieu of condemnation. Seller hereby waives
any and all claims to any money, all attorney's fees, costs, interest, disbursements, and
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expenses arising out of any potential known or unknown issues relating to
condemnation or inverse condemnation except for the payment by Buyer to Seller of
$5,000 for appraisal services pursuant to Code of Civil Procedure section 1263.025.
37. CONTINGENCY. It is understood and agreed between the parties hereto
that the completion of this transaction, and the Escrow created hereby, is contingent
upon the specific acceptance and approval of the City Council of the City of Dublin on or
before May 1, 2007. The execution of these documents and the delivery of same to
Escrow Agent constitute said acceptance and approval.
38. MISCELLANEOUS.
(a) Time of Essence. Time is of the essence with regard to every
obligation of this Agreement. Sellers and Buyer hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition, obligation
and provision hereof and that failure to timely perform any of the terms, conditions,
obligations or provisions hereof by either party shall constitute a material breach of and
a non-curable (but waivable) default under this Agreement by the party so failing to
perform.
(b) Entire Agreement. This Agreement (including all Exhibits attached
hereto) is t;he final expression of and contains the entire agreement between, the parties
with respe~t to the subject matter hereof and supersedes all prior understandings with
respect thereto. This Agreement may not be modified, changed, supplemented or
terminated, nor may any obligations hereunder be waived, except by written instrument
signed by the party to be charged or by its agent duly authorized in writing or as
otherwisee,xpressly permitted herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto.
(c) Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each such term and provision of this
Agreement shall be valid and be enforced to the fullest extent permitted by law.
(d) Waivers. No waiver of any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed an extension of the time for
performance of any other obligation or act.
(e) Successors and Assigns. The terms and conditions, covenants,
and agreements set forth herein shall apply to and bind the heirs, executors,
administrators, assigns and successors of the parties hereto.
(f) Professional Fees. In the event of the bringing of any action or suit
by a party hereto against the other party hereunder by reason of any breach of any of
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the covenants, agreements or provisions on the part of the other party arising out of this
Agreement, then in that event the prevailing party shall be entitled to have and recover
of and from the other party all costs and expenses of the action or suit, including
reasonable attorneys' fees, and any other professional fees resulting therefrom.
(g) Broker's Fees. Buyer and Seller hereby represent to each other
that neither has incurred any obligation to pay a broker's commission or finder's fee in
connection with the consummation of the transaction contemplated by this Agreement.
Buyer and Seller shall each indemnify, defend and hold the other party harmless from
and against any and all claims asserted by any broker or other person as a result of the
such party's breach of the representation set forth in this Section.
(h) Notices. All notices or other communications required or permitted
hereunder shall be in writing and either delivered by hand or deposited in the United
States mail first-class, postage prepaid and addressed as follows:
To Seller:
Berkeley Land Co., Inc.
c/o Mike Mikulich, V.P., Real Estate
321 Hartz Ave., Suite 200
Danville, CA 94526
To Buyer:
CITY OF DUBLIN
Richard Ambrose, City Manager
100 Civic Plaza
Dublin, CA 94568
cc:
Meyers, Nave, Riback, Silver and Wilson
555 12th Street, Suite 1500
Oakland, California, 94607
A TTN: Elizabeth H. Silver
- ~._.,.... -~- ---,-----------. -. .--- "---' - --
Claudia J. Gorham
FAX: 510-444-1108
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year set forth hereinabove.
BUYER/CITY:
C~OF DUBLIN ~
By: ~~ ~
Richard Ambrose
City Manager
SELLER:
BERKELEY LAND COMPANY
By:
~~-
---
ATTEST. f 0 . .
By: ~.-t.1J /': / U
City Clerk! Depl!+j
APPROVED AS TO FORM:
By:
By: ~)~
I r Eli etl1H. Silver
.~ . ity Attorney
----:>
-" ..tt;..
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EXHIBIT "A"
.k-EGAL DESCRIPTION
[Insert Legal Description of Fee Acquisition]
BLCM\45831\698682.3
-1-
DESCRIPTION:
The land referred to herein is situated in the State of California, County of Alameda, City of Dublin,
afldis described as follows:
PARCEL ONE:
BEGINNING AT A POINT ON THE SOUTHERN UNE OF THE STATE HIGHWAY RUNNING FROM
HAYWARD TO DUBLIN, 'AS SAID LINE EXISTED AUGUST 12,1930, SINCE THE WIDENING
THEREOF, SAID SOUTHERN LINE BEING 40 FEETSOUTHERL Y (MEASURED AT RIGHT ANGLES)
FROM THE CENTER LINE OF SAID HIGHWAY, AS RELOCATED AND NOW EXISTS, DISTANT
THEREON, 177.8 FEET EASTERLY FROM THE INTERSECTION THEREOF, WITH THE WESTERN
LINE OF LAND HERETOFORE CONVEYED BY HANS THERKELSEN AND W1FE, TO MARIE
FERRERO, BY DEED DATED JUNE 16, 1921 AND RECORDED JUNE 21,19:21 IN BOOK 18 OF
OFFICIAL RECORDS OF ALAMEDA COUN1Y, PAGE 347; RUNNING THENCE NORTH 680 15' EAST
ALONG SAID SOUTHERN UNE OF THE STATE HIGHWAY, 114.56 FEE1; THENCE SOUTH 21.45'
EAST, 10 FEET TO THE POINT OF BEGINNING OF THE PROPERTY HEREIN TO BE DESCRIBED,
SAID POINT BEING DISTANT 50 FEET SOUTHERLY (MEASURED AT RIGHT ANGL.ES} FROM THE
CENTER LINE OF THE AFORESAID STATE HIGHWAY, AS RSLOCATED AND AS THE SAME NOW
EXISTS FROM SAID POINT OF BEGINNING; RUNNlNG THENCE SOUTH 210 45' EAST, 170 FEET;
THENCE SOUTH 660 13' 30~WEST, 113.02 FEET: THENCE NORTH 220 15' WEST. 174 FEET, MORE
'OR LESS, TO A POINT WHICH WOULD BE INTERSECTED BY A LINE DRAWN PARAlLE\.- WiTH THE
CENTER LINE OFTHE STATE HIGHWAY AND DISTANT 50 FEET SOUTHERLY (MEASURED AT
RIGHT ANGLES) THEREFROM; THENCE NORTH 680 15' EAST. i 14.47 FEET TO THE POINT OF
BEGINNING. .
PARCEL 'tiN 0 ,
BEGiNNiNG AT ,b.,POINT Ot-J THE SOUTHWESTERN LINE OF FOOTHILL ROAD, ALSO KNOWN AS
THE ROAD FROM DUBLIN TO SU!\lOL. AT THE SOUTHERN EXTREMITY OF THE CURVE
CON~-lECTtNG SAlb ROAOWtTH THE SOLfrHEASTERN LINE OF THE STATE HIGHWAY FROM
HAYWARD TO LIVERMORE, AS SAID HiGHWAY NOW EXiSTS, AND AS SAID HIGHWAY LINE AND
CUfWE ARc DESCR1BED IN THE DEED FROM FELIX FERRERO Af'JO MARIE FERRERO, HIS WIFE,
TO STATE OF CALIFORNIA., DATED MAY 20,1931, RECORDED AUGUST 13,1932. IN BOOK 2857
OF OFFiCIAL RECORDS OF ALAMEDA COUNTY, PAGE 76; RUNNING THENCE NORTHWESTERLY,
WESTERLY M-JD SOUTHWESTERLY ALONG SAID CONNECTING ~URVE, BEING ALONG THE ARC
OF A CIRCLE TO THE LEFT, HAVING A RADIUS OF 50 FEET AND TANGENT TO SAID LINE OF
FOOTHILL ROAD, A D1STANCE OF 75.05 FEET; THENCE ALONG SAlD SOUTHEASTERN UNE OF
SAID STATE HIGHWAY, SOUTH 68015' WEST, 105.92 FEET, MORE OR LESS, TO THE
. NORTHEASTERN LlNE OF THE PARCEL OF LAND DESCRIBED IN THE DEED FROM FELIX
FERRERO ANDMA.RIE FERRERO, HIS WIFE, TO UNfON OIL COMPANY OF CALIFORNIA.. DATED
AUGUST 12, 1930 AND RECORDED AUGUST 15, 1930, IN 800K 2418. OF OFFICIAL RECORDS .OF
ALAMEDA. COUNTY, PAGE 274; THENCE ALONG THE NORTHEASTERN, SOUTHEASTERN AND
SOUTHWESTERN LINES OF SAID LAST MENTIONED PARCEL OF LAND, THE THREE FOLLOWING
COURSES AND DISTANCES; SOUTH 21' 45' EAST, 170 FEET; SOUTH 66" 13' 30" WEST, 113.Q2
FEET, AND NORTH 22015' WEST, 174 FEET TO THE SAID SOUTHE!\STERN LINE OF SAID STATE
HIGHWAY; THENCE ALONG THE LAST MENTIONED LINE, THE TWO FOLLOWING COURSES AND
DISTANCES; SOUTH 68" 15' WEST, "119.34 FEET, MORE OR LESS, AND SOUTHWESTERLY ALONG
THE ARC OF A CURVE TO THE lEFT, HA VfNG ft, RAD IUS OF 950 FEET AND TANGENT TO THE
LAST MENTIONED COURSES, A D!SIANCE OF 58,63 FEET TO THE SOUTHWESTERN LlNE OF
THE PARCEL OF LAND DESCRIBED AS "PARCEL 2", IN THE DEED FROM FELIX FERRERO TO H.
B. OXSEN, DATED JULY 1,1936, RECORDED JULY 10,1936, IN BOOK 3317 OF OFFlCIAL
RECORDS OF ALAMEDA COUNTY', PAGE 47Q; THENCE ALONG THE GENERAL SOUTHWESTERN
AND SOUTHEASTERN AND NORTHEASTERN liNES OF SAID LAST fviENTlOhlED "PARCEL 2", THE
FIVE FOLLOWING COURSES AND D!STANCES: SOUTH 21' .15' EP.ST, 371.91 FEET, MORE OR
LESS: NORTH 710 30' EAST, 24.618 FEET; SOUTH 210 15' EAST, 38.60 FEE:T; NORTH 71' :1D'. EAST,
250.80 FEET r\ND NORTH 230 15' WEST, 38.28 FEET, MORE OR LESS, TO THE SOUTHEASTERN
LINE OF THE PARCEL OF LAND DESCRIBED AS "PARCEL 1# IN SAID lAST MENTIONED DEED:
THENCE ALONG THE LAST MENTIONED LINE NORTH 63.45' EAST, 202.62 FEET TO SAID
SOUTHWESTERN UNE OF FOOTHILL ROAD; THENCE ALONG THE LAST MENTIONED LINE
NORTH 25' 45' WEST, 325.39 FEET, MORE OR LESS, TO THE POINT OF 'BEGINNING.
APN: 94'\-'\560-007-01
BLCM14583 1 \698682.3
EXHIBIT liB"
DEPICTION/PLAT MAP OF FEE ACQUISITION
[Insert Map of Fee Acquisition]
-1-
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MAP ~ ,Co'>>> AlnN"..~t~~ 5'~ qqc)~6 i ~-r
MAP OF THE PROPER1YOF TAE ESTATE Of' 1l1.-41 1#.' />,:; 2-
e:UZ.A~EiH A. OOUGHe:RTY,(s.e.",,~.7'.G? ' .
SANTA RITA RANOHO
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fdAP, OFTI"IE PROPi~RrY"OF THE ES1~Al<4E Ofl'
. . EL1ZA:JJE1nH A. DOUGHERTY, (BK.~.~ 7S.J
SANTA R/7~lRANCHO
.RS 39.5'l"nr.s.4.t:r/jf )(J,'rountJ u~mf, J~D'. 'PlJehecdf"&t: W~1:.;/.9-;() \~.1
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EXHIBIT "C"
FORM OF GR.-ANT DEED
BLCM\4583I \698682.3
-1-
Recording Requested By
North American Title Company
Order No. 56901-54990438-PRT
Escrow No. 54606-57310108- EBC
AND WHEN RECORDED MAIL TO:
Name City of Dublin
Street 100 Civic Drive
Address
City & Dublin, CA 94568
State
SPACE ABOVE THIS LINE FOR RECORDER'S USE
CORPORA TION GRANT DEED
A.P.N. 941-1560-007-0)
The undersigned grantor (s) declare (s):
Documentary transfer tax is $ NONE -Exempt City transfer tax is $ NONE
( ) computed on full value of property conveyed, or
( ) computed on full value less value of liens and encumbrances remaining at time of sale.
( ) Unincorporated area: (X) City of Dublin, and
FOR A VALUABLE CONSIDERA.TIOl'J, receipt of which is hereby acknowledged,
Berkeley Land Company, Inc., a corporation organized under the laws of the State of California
hereby GRANT(s} to City of Dublin, a municipal corporation
the following described real property in the City of Dublin, County of Alameda, State of California:
LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT" A" AND MADE A PART HEREOF
Dated Ami] 27. 2007
STA TE OF CALlFORNJA,
COUNTY OF
On
)SS.
)
before me.
Berkeley Land Company, Inc.,
a California Corporation
Notary Public, personally appeared
".
sonally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose narne(s) is/are subSCribed to the
within instrument and acknowledged to me that he/she/they executed the
same In 1m/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
\Vh ich the person( s) acted, executed the instrument.
WITNESS my hand and official seaL
per
By:
F (ank E. Sabatte, President
Signature
MAIL TAX
STATEMENTS TO
(This lrea for ofliciaIllotarial seal)
SAME AS ABOVE
NAME
ADDRESS
CITY, STA TE. ZIP
CIDocuments and SettingslPDMILocai SetlingslTemporary Internet FileslOLK1 F6157310108 - Corp Grant Deed1.RTF
CITY OF DUBLIN
CERTIFICA TEOF ACCEPTANCE
(California Government Code 27281)
This is to certify that the Corporation Grant Deed (APN 941-1560-007-01) dated
April 27, 2007, executed by Berkeley Land Company, Inc. to the City of Dublin, a
municipal corporation ("Grantee") is accepted by the undersigned officer or agent on
behalf of the City Council of the City of Dublin, pursuant to authority conferred by
Resolution No. 24-87 of the Dublin City Council adopted on April 13, 1987, and the
Grantee consents to recordation thereof by its duly authorized officer.
Dated: ~UO< 02/ (ZaJ 7
B;- ~~~
Richard Ambrose
City Manager
DESCRIPTION:
The land referred to herein is situated in the State of California, County of Alameda, City of Dublin,
and is described as follows:
PARCEL ONE:
BEGINNING AT A POINT ON THE SOUTHERN LINE OF THE STATE HIGHWAY RUNNING FROM
HAYWARD TO DUBUN, 'AS SAID LINE EXISTED AUGUST 12, 1930. SINCE THE WIDENING
THEREOF. SAID SOUTHERN LINE BEING 40 FEETSOUTHERL Y (MEASURED AT RIGHT ANGLES)
FROM THE CENTER LINE OF SAID HIGHWAY, AS RELOCATED AND NOW EXISTS, DISTANT
THEREON, 177.8 FEET EASTERLY FROM THE INTERSECTION THEREOF, WITH THE WESTERN
LINE OF LAND HERETOFORE CONVEYED BY HANS THERKELSEN AND WIFE, TO MARIE
FERRERO. BY DEED DATED JUNE 16. 1S21 AND RECORDED JUNE 21, 1921 IN BOOK 18 OF
OFFICIAL RECORDS OF ALAMEDA COUN1Y, PAGE 347; RUNNING THENCE NORTH 68015' EAST
ALONG SAID SOUTHERN liNE OF THE STATE HIGHWAY, 114.56 FEET; THENCE SOUTH 21.45'
EAST, 10 FEET TO THE POINT OF BEGINNING OF THE PROPERTY HERE!N TO BE DESCRIBED,
SAID POiNT BEING DISTANT 50 FEET SOUTHERLY (MEASURED AT RIGHT ANGLES) FROM THE
CENTER LINE OF THE AFORESAID STATE HIGHWAY, AS RELOCATED AND AS THE SAME NOW
EXISTS FROM SAID POINT OF BEGINNING; RUNNING THENCE SOUTH 21" 45' EAST, 170 FEET;
THENCE SOUTH 66013' 30. WEST, 1 13.02 FEET: THENCE NORTH 22015' WEST. 174 FEET, MORE
'OR LESS, TO A POINT WHICH WOULD BE INTERSECTED BY A LlNE DRAWN PARAlLE~ WITH THE
CENTER LINE OFTHE STATE H1GHWAY AND DISTANT 50 FEET SOUTHERLY {MEASURED AT
RIGHT ANGLES)THEREFROM; THENCE NORTH 66" 15' EAST. "\ 14.47 FEET TO THE POINT OF
. BEGINNING. . .
PARCEL TWO:
BEGINNiNG AT APDINT ON THE SOUTHWESTERN LINE OF FOOTHILL .ROAD, ALSO KNOWN AS.
THE ROAD FROM DUBLIN TO SUNOL. AT THE SOUTHERN EXTREMITY OF THE CURVE. .
CONNECTING: SAID ROADVJITfi THE SOUTHEASTERN LINE OF THE' STATE HIGHWAY FROM
HAYWARD TO LIVERMORE, AS SAID HIGHWAY NOW EXISTS. AND AS SAJD HIGHWAY LINE AND
CURVE ARE DESCR1BED IN THE DEED FROM FELIX FERRERO AND MARIE FERRERO, HIS WiFE,
TO STATE OF CALIFORNIA, DATED MAY 20,1931, RECORDED AUGUST 13, 1932, IN BOOK 2867
OF OFFICIAL RECORDS OF ALAMEDA COUNTY, PAGE 76; RUNNING THENCE NORTHWESTERLY,
WESTERLY AND SOUTHWESTERLY ALONG SAID CONNECTING 9URVE. BEING ALONG THE ARC
OF A CIRCLE TO THE LEFT, HAVING A RADIUS OF 50 FEET AND TANGENT TO SAID LINE OF
FOOTHILL ROAD, A DISTANCE OF 75.05 FEET; THENCE ALONG SAID SOUTHEASTERN UNE OF
SAID STATE HIGHWAY, SOUTH 68015' WEST, 105.92 FEET, MORE OR LESS, TO THE.
. NORTHEASTERN LlNE OF THE PARCEL OF LAND DESCRIBED IN THE DEED FROM FELIX
FERRERO AND'MARIE FERRERO, HIS WIFE, TO UNfON OIL COMPANY OF CALIFORNIA, DATED
AUGUST 12, 1930 AND RECORDED AUGUST 15,1930, IN BOOK 2418. OF OFFICIAL RECORDS OF
ALAMEDA COUNTY, PAGE 274; THENCE ALONG THE NORTHEASTERN, SOUTHEASTERN AND
SOUTHWESTERN LINES OF SAlD LAST MENTIONED PARCEL OF LAND, THE THREE FOLLOWING
COURSES AND DISTANCES: SOUTH 210 45' EAST, 170 fEET; SOUTH 66" 13' 30" WEST, 113.02
FEET, AND NORTH 22" 15' WEST, 174 FEET TO THE SAID SOUTHEASTERN LINE OF SAID STATE
HIGHWAY; THENCE ALONG THE LAST MENTIONED LINE, THE TWO FOLLOWING COURSES AND
DISTANCES; SOUTH 680,5' WEST, 119.34 FEET, MORE OR LESS, AND SOUTHWESTERLY ALONG
THE ARC OF A CURVE TO THE LEFT, HAVING A RADIUS OF 950 FEET AND TANGENT TO THE
LAST MENTIONED COURSES, A DIS1ANCE OF 58.63 FEET TO THE SOUTHWESTERN LINE OF
THE PARCEL OF LAND DESCRIBED AS "PARCEL 2;', IN THE DEED FROM FELIX FERRERO TO H.
B. OXSEN, DATED JULY 1, 1936, RECORDED JULY 'l0, 1936, IN BOOK 3317 OF OFFICIAL
RECORDS OF ALAMEDA COUNTY, PAGE 470; THENCE ALONG THE GENERAL SOUTHWESTERN
AND SOUTHEASTERN AND NORTHEASTERN LINES OF SAID LAST MENT10NED "PARCEL 2", THE
FIVE FOLLOWING COURSES AND DISTANCES: SOUTH 2.\015' EAST, 371.91 FEET, MORE OR
LESS; NORTH 71" 30' EAST, 24.618 FEET; SOUTH 210 15' EAST, 39.60 FEET; NORTH 71' 30'. EAST,
250.80 FEET AND NORTH 23. 15' WEST, 38.28 FEET, MORE OR LESS, TO THE SOUTHEASTERN
LINE OF THE PARCEL OF LAND DESCRIBED AS "PARCEL '1" IN SA1D LAST MENTIONED DEED~
THENCE ALONG THE LAST MENTIONED LINE NORTH 63045' EAST, 202.62 FEET TO SAID
SOUTHWESTERN LINE OF FOOTHILL ROAD; THENCE ALONG THE LAST MENTIONED LINE
NORTH 25' 45' WEST, 325.39 FEEl, MORE OR LESS, TO THE POINT OF BEGINNING.
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EXHIBIT "D"
ASSIGNMENT AND ASSUMPTION OF LEASES
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ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is
executed as of May _,2007, by and between BERKELEY LAND CO. INC., a
California corporation ("Assignor") and THE CITY OF DUBLIN, a municipal corporation
("Assignee").
R E C I TAL S:
This Assignment is made with reference to the following facts:
A. Assignor is the owner of that certain improved real property in the
City of Dublin, County of Alameda, State of California, known as 11759 Dublin
Boulevard, also known as the Dublin Square Shopping Center (the "P'Jperty") more
particularly described in Exhipit "A" attached hereto.
B. The Property is currently subject to the leases identified in Exhibit
"B" attached hereto (the "Leases").
C. Assignee is acquiring the Property from Assignor subject to the
"Purchase and Sale Agreement Between Berkeley Land Co. and the City of Dublin"
dated May 2, 2007 ("hereinafter "Purchase Agreement").
D. Assignor desires (concurrently with its transfer and conveyance of
the Property to Assignee) to assign and transfer to Assignee its interest, as landlord,
under the Leases and Assignee desires to acquire from Assignor the interest of
Assignor, as landlord, under the Leases and to assume all of the obligations of Assignor
as landlord under the Leases as of and after the date of the Close of Escrow of the
above-referenced purchase.
NOW, THEREFORE, for good and valuable consideration as set forth in
the Agreement, the receipt and adequacy of which is hereby acknowledged, the parties
hereto agree as follows:
1. Assianment. As of the Effective Date, Assignor does hereby
assign, transfer and convey, without recourse, to Assignee all of Assignor's right, titie
and interest as landlord under the Leases, including rents, security deposits, last month
rent deposits, and any and all other securities, if any. Assignee hereby accepts the
foregoing assignment, transfer and conveyance of Assignor's interest as landlord under
the Leases, and Assignee hereby assumes all of the obligations of Assignor as landlord
under the Leases arising from and after the Effective Date (including without lirnitation,
all obligations to return Security Deposits not already returned by Assignor under the
Leases).
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2. Indemnification. Assignee shall indemnify, defend and hold
Assignor harmless from any claim, loss or liability arising out of or in any way connected
with a default of landlord or any other claim by any of the tenants under any of the
Leases which occurs on or after the Effective Date.
3. Counterparts. This Assignment may be executed in two or more
counterparts, each of which shall be an original, but all of which together shall constitute
one and the same instrument.
4. Attorneys' Fees. If either party files any action or brings any
proceeding against the other arising from this Assignment, the prevailing party in such
action shall be entitled to have and recover as an elements of its costs of suit, and not
as damages, reasonable attorneys' and experts' fees and litigation expenses to be fixed
by the court both at trial and on appeal.
5. Effective Date. The "Effective Date" of this Agreement shall be the
date of the Close of Escrow, as defined in the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment on the dates set forth below, to be effective as of the Effective Date.
"ASSIGNOR"
BERKELEY LAND CO. INC., a California
corporation
Dated:
,2007
By:
Its:
Dated:
,2007
By:
Its:
"ASSIGNEE"
Dated:
5:.- d-
,2007
THE CITY OF DUBLIN, a municipal
corporation
By: ~~H~
CITY MANAGER
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DESCRIPTION:
The land referred to herein is situated in the State of California, County of Alameda, City of Dublin,
and is described as follows:
PARCEL ONE:
BEGINNING AT A POINT ON THE SOUTHERN LINE OF THE STATE HIGHWAY RUNNING FROM
HAYWARD TO DUBLIN, 'AS SAID LINE EXISTED AUGUST 12,1930. SINCE THE WIDENING
THEREOF. SAID SOUTHERN LINE BE!NG 4() FEETSOUTHERl Y (MEASURED AT RIGHT ANGLES)
FROM THE CENTER LINE OF SAID HIGHWAY, AS RELOCATED AND NOW EXISTS, DISTANT
THEREON, 177.8 FEET EASTERLY FROM THE INTERSECTION THEREOF, WITH THE WESTERN
LINE OF LAND HERETOFORE CONVEYED BY HANS THERKELSEN AND WIFE, TO MARiE
FERRERO, BY DEED DATED JUNE i6,192~ AND RECORDED JUf\!E 21, 1921 IN BOOK 18 OF
OFFICIAL RECORDS OF ALAMEDA COUNTY, PAGE 347; RUNNING THENCE NORTH 68. is' EAST
ALONG SAID SOUTHERN LINE OF THE STATE HIGHWAY, 114.56 FEEl; THENCE SOUTH 21. 45'
EAST. 10 FEET TO THE POINT OF BEGINNING OF THE PROPERTY HEREIN TO BE DESCRIBED,
SAID POINT BEING DiSTANT 50 FEET SOUTHERLY (MEASURED AT RIGHT ANGLES) FROM THE
CE!\.rrER LINE OF THE AFORESAID STATE HIGHWAY, AS RELOCATED AND AS THE SAME NOW
EXISTS FROM SAID POINT OF BEGiNNING; RUNNING THENCE SOUTH 21" 45' EAST, 170 FEET;
THENCE SOUTH 66. 13' 30~ WEST, i 13.02 FEET: THENCE NORTH 22015' WEST. 174 FEET, MORE
. OR LESS, TO A POINT WHICH WOULD BE INTERSECTED BY A LINE DRAWN PARALLE!... WITH THE
CENTER LlNE OFTHE STATE HIGHWAY AND DISTANT 50 FEET SOUTHERLY {MEASURED AT
RIGHT ANGLES)THEREFROM; THENCE NORTH 66.15' EAST, .114.47 FEET TO THE POINT OF
BEGINNING. .
PARCEL 'tWO,
BEGINNiNG AT A:P.OINT ON THE SOUTHWESTERN LINE OF FOOTHILL ROAD, ALSO KNOWN AS
THE ROAD FROM DUBLIN TO SUNOL. AT THE SOUTHERN EXTREMITY OFTHE CURVE
CONNECTING: SAlb ROADWITH THE SOtJrHEA8TERN LINE OF THE STATE HIGHWAY FROM
HAYWARD TO LIVERMORE, AS SAID HIGHWAY NOW EXISTS, AND AS SAID HI.GHWAY LINE AND
CURVE ARE DESCR1BED IN THE DEED FROM FELIX FERRERO AND MARIE FERRERO, HIS WIFE,
TO STATE OF CALIFORNIA. DATED MAY 20, ';931, RECORDED AUGUST 13, 1932. IN BOOK 2867
OF OFFIClAL RECORDS OF ALAMEDA COUNTY, PAGE 76; RUNNING THENCE NORTHWESTERLY,
WESTERLY AND SOUTHWESTERLY ALONG SAID CONNECTING CURVE, BEING ALONG THE ARC
OF A CIRCLE TO THE LEFT, HAVING A RADIUS OF 50 FEET AND TANGENT TO SAID LINE OF
FOOTHILL ROAD, A DISTANCE OF 75.05 FEET; THENCE ALONG SAID SOUTHEASTERN UNE OF
SAID STATE HIGHWAY, SOUTH 68.15' WEST, 105.92 FEET, MORE OR LESS, TO THE,
. NORTHEASTERN LINE OF THE PARCEL OF LAND DESCR/BED IN THE DEED FROM FELIX
FERRERO AND'MARIE FERRERO, HIS WIFE, TO UNION OIL COMPANY OF CALIFORNiA, DATED
AUGUST 12, 1930 AND RECORDED AUGUST 15, 1930, IN BOOK 2418, OF OFFICIAL RECORDS OF
ALAMEDA COUNTY, PAGE 274; THENCE ALONG THE NORTHEA.STERN, SOUTHEASTERN AND
SOUTHWESTERN LINES OF SAID LAST MENTIONED PARCEL OF LAND, THE THREE FOLLOWING
COURSES AND DISTANCES: SOUTH 21.45' EAST, 170 FEET; SOUTH 66" 13' 30" WEST, 113.02 .
FEET, AND NORTH 22415' WEST, 174 FEET TO THE SAID SOUTHEASTERN LINE OF SAID STATE
HtGHWA Y; THHJCE ALONG THE LAST MENTIONED LINE, THE TWO FOLLOWING COURSES AND
DISTANCES; SOUTH 68.15' WEST, 119.34 FEET, MORE OR LESS, AND SOUTHWESTERLY ALONG
THE ARC OF A CURVE TO THE LEFT, HAVING A RADIUS OF 950 FEET AND TANGENT TO THE
LAST MENTIONE.D COURSES, A DISTANCE OF 58.63 FEET TO THE SOUTHWESTERN LINE OF
THE PARCEL OF LI'\,ND DESCRIBED AS .PARCEL 2;', IN THE DEED FROM FEL1X FERRERO TO H.
B. OXSEN. DATED JULY 1, 1936. RECORDED JULY 10, i936, IN BOOK 3317 OF OFFICIAL
RECORDS OF ALAMEDA COU"lTY, PAGE 470; THENCE ALOI>JG THE GENERAL SOUTHWESTERN
AND SOUTHEASTERN AND NORTHEASTERN liNES OF SAID LAST MENTlONED ''PARCEL 2", THE
FIVE FOLLOWING COURSES AND DlSTANCES: SOUTH 21.15' Ep.sT, 37'\.91 FEET, MORE OR
LESS; NORTH 71" 30' EAST, 24.618 FEET; SOUTH 21 n 'i 5' E/',8T, 39.60 FEET; NORTH 71.30'. EAST,
250.80 FEET AND NORTH 23. 15' WEn, 38.28 FEET, MORE OR LESS, TO THE SOUTHEASTERN
LINE OF THE PARCEL OF LAND DESCRIBED AS "PARCEL 1" IN S,A.1D LAST MENTIONED DEED~
THENCE ALONG THE LAST MHJTIONED LINE NORTH 63" 45' EAST, 202.62 fEET TO SAID
SOUTHWESTERN UNE Of fOOTHILL ROAD; THENCE ALONG THE LAST MENTIONED LINE
NORTH 25" 45' WEST, 325.39 FEET, MORE OR \...ESS, TO THE POINT OF BEGINNING,
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EXHIBIT "B"
LEASES
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COwAMERCRA.l LEASE AND DEPOS&T
RECEIVED FROM
The sum of $ 825.00
evidenced by Check
Jodv Rhone hereinafter referred to as LESSEE.
Ei ht Hundred Twen Five*"'******************"*****,*****************k**************************************** dollars), '
, as a deposit which will belong to Lessor and will be applied as follows:
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
Rent for the period from September 1 to September 31. 2005 $ 400.00 $ $ 400.00
Security deposit (not applicable toward last month's rent) $ 400.QO $ $ 400.00
Other CAM, Taxes & Insurance $ 25.00 $ $ 25.00
TOTAL $ 825.00 $ $ 825.00
In the event this Lease is not accepted by the Lessor within~ days, the total deposit received will be refunded.
Lessee offers to lease from Lessor the premises situated in the City of Dublin , County of Alameda
State of California, described as the premises located at 11847 Dublin Blvd. Dublin. CA
consisting of approximately 700 square feet, upon the following terms and conditions:
1. TERM. The term will commence on September 1.2005 and end on AUGust 31, 2008.
2. RENT. The totai ,ent will be $15,300.00 at 5; 425.00 per month (based on first year's rates) payable on the 1st day of each month. All rents
wi!! be paid to Lessor or his or her authorized agent, at the following address 321 Hartz Ave. Suite 200. Danville, CA 94526 or at such other places as may 0S
designated by Lessor from time to time. tn the event rent is not paid within ----2- days after due date, Lessee agrees to pay a fate charge of $ ...lliL.....Plus
interest at -..!L % per annum on the delinquent amount. Lessee further agrees to pay $ ~for each dishonored bank check. The late charge period is not a
grace period, and Lessor is entitled to make written demand for any rent if not paid when due.
3. USE. The premises are to be used for the operation of Barber Shop and for no other purpose, without prior written consent
of Lessor. Lessee will not commit any waste upon the premises, or any nuisance or act which may disturb the quiet enjoyment of any tenant in the building.
4. USES PROHIBITED. Lessee will not use any portion of the premises for purposes other than those specified. No use will be made or permitted to be made
upon the premises, nor acts done, which wltl increase the existing rate of insurance upon the property, or cause cancellation of insurance poficies covering the
property. Lessee willnot conduct or permit any sale by auction on the premises.
5. ASSIGNMENT AND SUBLETTING. Lessee will not assign this Lease or sublet any portion of the premises without prior written consent .of the Lessor,
which will not be unreasonably withheld. Any such assignment or subletting without consent will be void and at the option of the Lessor, will terminate this Lease.
6. ORDINANCES AND STATUTES. Lessee will comply with all statutes, ordinances, and requirements of all municipal, state and federal authorities n8'N in
force, or wilich may later be in force, regarding the use of the premises, The commencement or pendency of any state or federal court abatement proceeding
affecting the use of the premises will, at the option of the Lessor, be deemed a breach of this Lease.
7. MAINTENANCE; REPAIRS, ALTERATIONS. Unless otherwise indicated, lessee acknowledges that the premises are in good order and repak. Lesses
villi, at his or her own expense, maintain the premises in a good and safe condition, including plate glass, eiectrical wiring, plumbing and heating and air,
conditioning installations, and any other system or equipment. The premises will be surrengered, at telTllination of the Lease, in as good condition as received.
normal wear and tear excepted. Lessee will be responsible for all repairs required, except the following which will be maintained by Lessor: roof, exterior wails, a.nd
structural foundations (including any retrofitting required by governmental authorities) and:
Lessee 0wiil, r=rwill not maintain the property adjacent to the premises, such as sidewalks, driveways, lawns, and shrubbery, which would otherwise be maintdin'e.i
by Lessor. No improvement or alteration of the premises will be made without the prior written consent of the Lessor. Prior to the commencement of any
substantial repair, improvement, or alteration, Lessee will give Lessor at least two (2) days written notice in order that Lessor may post appropriate notices to
avoid any liability for Ilens.
8. ENTRY AND INSPECTiON. Lessee will permit Lessor or Lessor's agents to enter the premises at reasonable times and upon masonable notice for ths
purpose of inspecting the premises, and wili permit Lessor, at any time within sixty (GO) days prior to the expiration of this Lease, to place upon the premiss" emy
usual "For Lease" signs, and pemlit persons desiring to Lease the premises to inspect the premises at reasonable times.
9. INDEMNIFICATION OF lESSOR. Lessor will not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on th,,,
premises. Lessee agrees to hold Lessor harmless from any claims for damages arising out of Lessee's use of the premises, and to indemnify lessor for any
expense incurred by Lessor in defending any such claim". - .
1 O. POSSESSION. If Lessor is unable to deliver possession of the premises at the commencement date set forth above, Lessor will not be liable for any
damage caused by the delay, nor will this Lease be void or avoidable, but Lessee wiil not be liable for any rent until possession is delivered. lessee may le,m!n~"t0
this Lease if possession is not delivered within ~ days of the commencement term in Item 1.
11.. LESSEE'S INSUlRA.NCE. Lessee, at his or her expense, will maintain piate glass, public liability, and property damage insurance insuring lessee c:nd
Lessor with minimum coverage as follows: 1 Million Dollars General Uabilitv
Lessee will provide Lessor with a Certificate of Insurance showing Lessor as additional insured. The policy will require ten (10) day's written notice to Le~:'";'Jr
prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE. Lessor wlll maintain hazard insurance covering one hundred percent (100%) actual cash value cf the improvements through",'..:!.
the Lease term. Lessor's insurance will not insure Lessee's personal property, Leasehold improvements, or trade fixtures.
13. SUI3ROGf", TiON. To the maximum extent permitted by insurance policies which maybe owned by the parties, Lessor am! Lessee waive any and "Ii rights
of subrogation which might otherwise exist.
14. UT<<;..gTIES. Lessee agrees that he or she will be responsible for the payment of all utiiities, including watH, gas, electricity, heat and other serviG8~' "'o:;"c;'c,;
to the p reIn ises 1 exce pi: ::~~***********.. ****"'"k*****"", 'I< **********'i<:*********"** *******************'k*******************'**********'****************" ""*** _
i 5, SiGNS. Lessee will not place, maintain, nor permit any sign or awning on any exterior door, wall, or window of the premises without the express wri\:<':r1
consent of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
16. AR.ANf.lOI\\lME:.J:T er- PREMISES. Lessee will not vacate or abanjon the premises at any time durin,] the term of this Lease. If Lessee does ab8".1or:
vacate the premises, or is dispossessed by process of law, or otherwise, any personal property belonging to Lessee .left on the premises will be deemedu be
abandoned, at the option of Lessor.
F';?;.'J.c i f'-,' 3
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Property Address
11847 Dublin Blvd. ....._..Ilin, CA
<:::ONDEMNATION. If any part of the premises is condemned for public use, and a part remains which is susceptible of occupation by Lessee, this Lease
(s to the part taken, terminate as of the date the condemnor acquires possession. Lessee will be required to pay such proportion of the rent for the remaininC'
lc., ,,1 as the value of the premises remaining bears to the total value of the premises at the date of condemnation; provided, however, that either party may, at hisO
or her option, terminate this Lease as of the date the condemnor acquires possession. In the event that the premises are condemned in whole, or the remainder is
not susceptible for use by the Lessee, this Lease will terminate upon the date which the condemnor acquires possession. All sums which may be payable on
account of any condemnation will belong solely to the Lessor; except that Lessee will be entitled to retain any amount awarded to him or her for his or her trade
fixtures and moving expenses.
'16. TRADE FIXTURES. Any and all improvements made to the premises during the term win belong to the Lessor, except trade fixtures of the Lessee. Lesse:?
may, upon termination, remove all his or her trade fixtures, but will pay for all costs necessary to repair any damage to the premises occasioned by the removal.
19. /DESTRUCTION OF PREMISES. In the event of a partial destruction of the premises during the term, from any cause except acts or omission of Lessee,
Lessor will not promptly repair the premises. Such partial destruction will tenninate this Lease.
20. HAZARDOUS MA TERlA!..S. Lessee will not use, store, or dispose of any hazardous substances upon the premises, except the use and storage of such
substances that are customarily used in Lessee's b:1Siness, and are in compliance with all environmental laws. Hazardous substances means any hazardous
waste, substance or toxic materials regulated under any environmental laws or regulations applicable to the property. Lessee will be responsible for the cost of
removal of any toxic contamination caused by Lessee's use of the premises.
21. INSOt.. VENey. The appointment of a receiver, an assignment for the benefits of creditors, or the filing of a petition in bankruptcy by or against Lessee, wii:
constitute a breach of this Lease by Lessee,
22. DEFAULT. In the event of any breach of this Lease by Lessee, Lessor may, at his or her option, terminate the Lease and recover from Lessee: (a) the worth
at the time of award of the unpaid rent which had been earned at the time of termination; (b) the worth at the time of mvard of the amount by which the unpaid rent
which would have been €lamed after termination until the time of the award exceeds the amount of such rental loss that the Lessee proves could have been
reasonably avoided; (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that the Lessee proves could be reasonably avoided; and (d) any other amount necessary to compensate Lessor for an the detriment
proximately caused by the Lessee's failure to perfonn his or her obligations under the Lease or which in the ordinary course of things would be likely to resu!l
therefrom.
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor does not terminate Lessee's right to possession, and Lessor may enforce all of
Lessor's rights and remedies under the Lease, including t!le right to recover the rent as it becomes due under the Lease. If said breach of Lease continues, LE'SSO,'
may, at any time thereafter, elect to terminate the Lease.
These provisions will not limit any other rights or remedies \'llhich Lessor may have.
23. SECURITY. The security deposit will secure the performance of the Lessee's obligations. Lessor may, but will not be obligated to, apply all or portions oftha
deposit on account of Lessee's obligations. Any balance remaining upon termination will be retumed to Lessee. Lessee will not have the right to apply the securi':y
deposit in payment of the last month's rent.
24. DEPOSIT REFUNDS. The balance of all deposits will be refunded within three (3) weeks (or as otherwise required by law), from date possession is
delivered to Lessor or'pis or her authorized agent, together with a statement showing any charges made against the deposits by Lessor.
.ATTORNEY FEES. In any action or proceeding involving a dispute between Lessor and Lessee arising out of this Lease, the prevailing party will be entitled
3sonable attorney fees.
:<::'0. WAIVER. No failure of Lessor to enforce any term of this Lease will be deemed to be a waiver.
27. NOTiCES. Any notice which either party mayor is required to give, will be given by mailing the notice, postage prepaid, to Lessee at the premises, c:r to
L,essor at the address~hown in Item 2, or at such other places as may be designated in writing by the parties from time to time. Notice will be effective five (5j
days after mailing, don personal delivery, or when receipt is acknowledged in writing.
28. HOL-DiNC OVER. Any holding over after the expiration of this Lease, with the consent of Owner, will be a month-to-month tenancy at a monthly rent of
$ 750.00 , payable in advance and othei\vise subject to the terms of this Lease, as applicable, until either party will terminate the tenancy by giving lh(;
other party thirty (30) days written notice.
29. TIME. Time is of the essence of this Lease.
30. HEIRS, ASSIGNS, SUCCESSORS. This Lease is binding upon and inures to the benefit of the heirs, assigns, and successors of the parties.
31. '.AX aNCREASE.ln the event there is any increase during any year ofthe term of this Lease in real estate taxes over and above the
amount of such taxes assessed for the tax year during which the tennof thl,' Lease commences, Lessee will pay to Lessor an amount equal to 100 % of the
increase in taxes upon the land and building in which the leased premises are situated. In the event that such taxes are assessed for a tax year extending beyond
the term of the Lease, the obligation of Lessee will be prorated.
32. COST Of LIVING INCREASE. The rent provided for in Item 2 will be adjusted effective upon the first day of the .month immediately following the
expiration of 12 months from date of commencement of the term, and upon the expiration of each 12 months thereafter. in accordance with changes In the U.:3.
Consumer Price Index for All Urban Consumers (1982-84 ::: 100) ("CPI"). The monthly rent will be increased to an amount equal to the monthly rent set forth In
Item 2, multiplied by a fraction the numerator of which is the CPI for the second calendar month Immediately preceding the adjustment date, and the denomim,'t.:;r
of which is the CPI for the second calendar month preceding the commencement of the Lease term; provided, however, that the monthly rent will not be less than
the amount set forth in Item 2.
33. Intentionally Left Blank.
34. AMERICANS WiTH DISABit..rnES ACT. The parties are alerted to the existence of the Americans with Disabilities Act, which may require costly
structural modifications. The parties are advised to consult \A1th a professional familiar with the requirements of the Act.
35. LESSOIP..'S IIA21li,.ITY. In the event of a transfer of Lessor's title or interest to the property during the term of this Lease, Lessee agrees that the grantee oi
such title or interest will be substituted as the Lessor under this Lease, and the original Lessor will be released of all further liability; provided. that ali deposits will
be transferred to the grantee.
36. ESTOPPEL CERTIFICATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee If/ill execute, acknowledge, and deliver to Lessor a statement in writing: [1] certifying that thi"
Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full forer'
and effect), the amount of any security deposit, and the date to which the rent and other charges are paid in advance, if any, and (2] acknowledging that tl,ere 21'8
not, to Lessee's knowledge. any uncured defaults on the part of Lessor, or specifying such defaults if any are claimed. Any such statement may be conclusive;y
"'ld upon by any prospective buyer or encumbrancer of the premises.
) At Lessor's option, Lessee's failure to deliver such statement within such time will be a material breach of this Lease or will be conclusive upon Lessee: ['1 J
Jt this Lease is in full force and effect, without modification except as may be represented by Lessor; [2] that there are no uncured defaults in Lessor's
performance; and [3J that not more than one month's rent has been paid in advance.
(e) If Lessor desires to finance, refinance, or sell the premises, or any part thereof, Lessee agrees to deliver to any iender or buyer designated by Lesser e,lJc!,
financial statements of Lessee as may be reasonably required by slIch lender or buyer. All financial statements will be received by the Lessor or the lender or
buyer in confidence and will be used only fOl' the purposes set forth.
PJ.rle ;? I..,,~ :5
Property Address
11847 Dublin Blvd. L. _Jlin. CA
37. ENTIRE AGREEMENT. The foregoing constitutes the entire agreement between the parties and may be modified only in writing signed by all parties. The
following are a part of this Lease:
The undersigned Lessee acknowledges that neo 01" she has thoroughly read and approved each of the provisions contained in this
Offer, and agrees to t.he terms and conditions specified.
l~'OO~0 ~ O,te 9-7--6) Le~oo 0",
Receipt for deposit acknowledged by Date
ACCEPTANCE
The undersigned L.essor accepts the foregoing Offer a!;lCi agrees to Lease the premises en the terms and conditions set forth lOllbo\n,,',
1,1l!^ ilL }/ '/ ()
i ~ V PVVtUJJt/vV'
Lessor
Date
crl'j/1r
( ,
Lessee acknowledges receipt of a copy of the accepted Lease on (date)
[-------1 L-J
(initials) .
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EXHIBIT A
Lessee agrees that should Lessee rent out or sublet another chair, or otherwise receives
income from any source whatsoever that 25% of said income shall be paid to Landlord as
additional rent.
Lessee further agrees that all barber chairs shall become the property of Berkeley Land
Co., Inc. upon Lease termination.
"
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Jod. one .
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COMMER.CIAL l.EASE AND DEPOSiT
RECEIVED FROM
The sum of $ 6,800.00
will be applied as follows:
Simin Lalefar and Hennin Latefar
Sixty EiQht Hundred and no/100 dollars), evidenced by
Check
hereinafter referred to as LESSE=:,
. as a deposit which will belong to Lessor an::';
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
R(:mt for the period from March 1 to March 31. 2007 $ 6.800.00 $ $ 6,800.00
Security deposit (not applicable toward last month's rent) $ $ $
Other $ $ $
TOTAL $ 6,800.00 $ $ 6.800.00
In the event this Lease is not accepted by the Lessor within-1Q........ days, the total deposit received will be refunded.
Lessee offers to Lease from Lessor the premises situated in the City of Dublin , County of Alameda
State of California, described as the premises located at 11837 Dublin Blvd, Dublin. CA
consisting of approximateiy 6,800 square feet, upon the following tenns and conditions:
1. TERM. The term will commence on December 1. 2006 and end on November 3D, 2009.
2. RENT. The total rent will be $224.400.00. Rent for the first three months will be free to the Lessee. ,Rent will be at$ 6,800.00 per month payable on th3
1st day of each month. All rents will be paid to Lessor or his or her authorized agent, at the following address 321 Hartz Ave. Suite 200. Danvilb.s;/),
94526 or at such other places as may be designated by Lessor from time to time. In the event rent is not paid within -2- days after due date, Lessee agrelh m
pay a late charge of $ ~lus interest at--!L% per annum on the delinquent amount. Lessee further agrees to pay $ ~for each dishonored ~mni:
check. The late charge periOd is not a grace period, and Lessor is entitled to make written demand for any rent if not paid when due.
3. USE. The premises are to be used for the operation of Home Furnishino Store and for no other purpose, without prior written
consent of Lessor. Lessee will not commit any waste upon the premises, or any nuisance or act which may disturb the quiet enjoyment of any tenantin the
building.
4. USESPROHIEnTE~. Lessee will not use any portion of the premises for purposes other than those specified. No use will be made or permItted to be rrmde
upon the premises, nor acts done, which will increase the existing .rate of insurance upon the property, or cause cancellation of insurance policies covering tne
property, Lessee will not conduct or permit any sale by auction on the premises.
5. ASS!GNMENT AND SUBLETTING. Lessee will not assign this Lease or subiet any portion of the premises without prior written consent of the Lessor,
which wm not be unreasonably withheld. Any such assignment or subietting without consent will be void and at the option of the Lessor, will terminate this Leas'~,
6. ORDiNANCES AND STATUTES. Lessee wm comply with all statutes, ordinances, and requirements of all municipal, state and federal authorities :1UW i:,
force, or which may later be in force, regarding the use of the oremises. The commencement or pendency of any state or federal court abatemc'nt proceeding
affecting the use of the premises will, at the option of the Lessor, be deemed a breach of this Lease.
7. MAiNl'ENANCE, REPAIRS, .All.. TERA TIO!'~S. Unless othelWise indicated, Lessee acknowledges that the prem\ses are in good order and repair. L.eS3&3
will, at his or her own expense, maintain the premises In a good and safe condition, including plate glass, electrical wiring, plumbing and heating and air "
eonditloning installations, and any other system or equipment. The premises will be surrendered, at termInation of the Lease, In as good condition as recei\'cd,
normal wear and tear excepted. Lessee will be responsible for ali repairs required, except the fonowing which will be maintained by Lessor: roof, exterior wa.Us, "r<j
strIJctural foundations (including any retrofitting required by govemmental authorities) and: -............... ,---
Lessee&m, Owill not maintain the property adjacent to the premises, such as sidewalks, driveways, lawns, and shrubbery, Which would othelWise be maintaincQ
by Lessor. No improvement or alteration of the premises will be made v:ithout the prior written consent of the Lessor. Prior to the commencement of any
substantial repair, improvement, or alteration, lessee will give Lessor at least two (2) days written notice in order that Lessor may post appropriate noticE;s to
avoid any liability for iiens.
8. ENTRY AND lNiSi!"5CT!ON. Lessee will permit Lessor or Lessor's agents tb enter the premises at reasonable times and upon reasonable notice fa:- the"
purpose of inspecting the premises, and will pen-nit Lessor, at any time within sixty (50) days prior to the expiration of this Lease, to place upon the prerniGe:, 8';,Y
usual "For Lease" signs, and permit persons deSiring to Lease the premises to inspect the premises at reasonable times.
9. INiDEMf.!lF!CATION OiF!..ESSOR. Lessor will not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring or1 the
premises. Lessee agrees to hold Lessor hannless from any claims for damages arising out of Lessee's use of the premises, and to indemnify Lessor for an:!
expense incurred by Lessor in defending any suCh claims.
'I C. POSSESSION. If Lessor is unable to deliver possession .of the premises at the commencement date set forth above, Lessor will not be liable for any
damage caused by the delay, nor will this Lease be void or avoidable, but Lessee will not be liable for any rent until possession is de!lvered. Lessee may tGrrni:icil0
this Lease if possession is not delivered within -L days of the commencement term in Item 1,
11. t.ESSEE'S INSURANCE. Lessee, at his or her expense, will maintain plate glass, public liability, and property damage insurance insuring Lessee gr..;'
Lessor with minimum coverage as follo'.'.'5: 1 ':\1i1iion Dollars General liability .
Lessee will provide Lessor with a Certificate of insurance showing Lessor as additional insured. The policy will require ten (10) day's written notice to Lf).;3C;;"
prior .to cancellation or material change of coverage.
12, LESSOR'S U.lSURANiCE. Lessor wl!i maintain hazard insurance covering one hundred percent (100%) actual cash value of the improvements throuQi",.",
the Lease term. .Lessor's Insurance will not insure Lessee's personal property, Leasehold improvements, or trade fixtures.
'\13. SUla:ROGA=nO~. To the maximum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee waive any and at: rig:-\;,~
of subrogation which might otherwise exist.
14. UTil..rrUE:S. Lessee agrees that he or she will be responsible for the payment of all utilities, including water, gas, electricity, heat and other services de;;'.' ,
to. the prem ises t except: ***~~****':Jr**'******* ''-******''kf'*****'k*************'Ir*******'*******'''ir**************************~******,***"**\"*************************' .
15. :r:m:;;wlS. Lessee wlli not place, maintain, nor permit any sign or awning on any exterior dOOf, wall, or window of the premises without the express w:'rttu:
consent of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
11 6" ABANDOI\!MEi\J!T OF PREM~SES. Lessee wili not vacate or abandon the premises at any time during tile term of this Lease. If Lessee does ah::1iir1of, G7
vacate the premises, or is dispossessed by process of iaw, or otherwise, any persona! property belonging to Lessee left on the premises will be deemed tv [;i"
abandoned, at the option of Lessor.
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Property Address
11837 Dublin Blvd. DUl.1lIn. CA
Exhibit A
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Exhibit B
Option to Extend Term
Tenant shall have the right and option to extend the term of this Lease for one additional period of three years commencing on expiration of the Origin8-: TeF'n
specified in ExhibitB of this Lease (the "Option to Extend Term") provided:
(a) Tenant has fully and faithfully performed all the terms, covenan1s, and conditions of this Lease for the Original Term specified in item 1 of
this Lease, and the Tenant is not in default either at the time of exercise of the option or at the close of the Original Teml of the Lease.
(b) Written notice of Tenant's e!e::tion to renew the term of this Lei;lse is delivered by Tenant to Landlord at least 180 days before expiration ui
the Original Term specified in Item 1 of this Lease.
(c) The renewed term of this Lease shall be subject to the same terms and conditions as are contained in this Lease, except that the amount
of rent payable under this Lease for the renewed terms shall be adjusted based on Consumer Price Index, which shall be determined in accordance W;:i
Item 32 of this Lease. "
, .
" or;
SHOPPING CENTER LEASE
Between
BERKELEY LAND COMPANY, INC.
a California Corporation,
Landlord
and
CHEF'S TOUCH CATERING
Tenant
Dated:
1'/2.~hf
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ARTICLE 1.
1.0 I.
1.02.
1.03.
ARTICLE 2.
2.01.
2.02. .
ARTICLE 3.
3.01.
ARTICLE 4.
4.01.
4.02.
4.03.
4.04.
4.05.
4.06.
i\RTICLE 5.
5.01.
5.02.
5.03.
5.04.
.ARTICLE 6.
6.0l.
6.02.
6.03.
6.04.
6.05.
t.06.
/}
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SHOPPING CEt-TTER LEASE
Table of Contents
LEASED PREMISES
Agreement to Lease
"Premises" Defined
Right to Use Common Areas
TENANT'S BUSINESS USE A..ND NAME
Permitted Business Use
Tenant's Business Name
TERM OF LEASE
Commencement Date and Term
RENT l\ND OTHER CHARGES
Initial Minimum Monthly Rent
Common Area Maintenance Costs
Utility Services and Charges
Taxes
Additional Rent
Late Charges
IvLA INTENANCE ..AND USE OF COMMON AREAS
Maintenance and Control
"Cornman Areas" Defined
Tenant's Right to Use
Tenant and Employee Parking
CONSTRUCTION f\ND REP AIR.S
Condition of Premises
Alterations and Improvements by Tenant
Tenant's Construction
Alterations and Improvements by Landlord
Repairs to Premises
Ovvnersmp of Improvements
.,
, 0
Lit
ARTICLE 7.
7.0l.
7.02.
7.03.
7.04.
7.05.
7.06.
ARTICLE 8.
8.01.
8.02.
8.03.
8.04.
8.05.
8.06.
8.07.
8.08.
ARTICLE 9.
9.0l.
9.02.
9.03.
9.04.
9.05.
ARTICLE 10.
10.0l.
10.02.
10.03
AR TrCLE 11.
11.0l.
11.02.
11.03.
11.04.
11.05.
, I
Lf
DESTRUCTION OF PREMISES OR SHOPPING CENTER
Notice of Damage
Damage or Destruction From Insured Casualty
Right to Terminate Lease
Abatement of Rent
Obligations for Repair or Rebuilding
Payment of Insurance Proceeds
USE OF PREMISES
Storage'"
Condition of Premises
Prohibited Actions
Compliance With Laws
Signs and Advertising
Rules and Regulations
Assignment and Sublease
Covenant of Continuous Business Operation
JNSURAl~CE
Insurance by Landlord
Insurance by Tenant
Subrogation Waiver
Proceeds
Indem.T1.ification
SUBORDINATION, ATTORNMENT, AND ESTOPPEL
CERTIFICATES
Subordination
Attornment
Estoppel Certificates
CONDE1vlNATION
Termination of Lease
Continuation 0 fLease
Option to Tenninate Lea..'le
Condemnation Award
Waiver
11
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ARTICLE 12.
12.0l.
12.02.
12.03.
12.04.
12.05.
12.06.
12.07.
12.08.
12.09.
12.10.
ARTICLE 13.
13.01. .
13.02.
13.03.
13.04.
13.05.
13.06.
13.07.
13.08.
13.09.
13.10.
13.1l.
13.12.
13.13.
13.14.
13.15.
13.16.
13.17.
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DEFAULT AND TERMINATION
"Default" Defined
Termination of Lease and Recovery of Damages
Landlord's Right to Continue Lease in Effect
Landlord's Right to Relet
Landlord's Right to Cure Tenant Defaults
Cumulative Remedies
.....
Waiver of Breach
Surrender on Termination
Holdover Tenancy
Attorneys' Fees
MISCELLANEOUS
No Personal Liability of Landlord
Landlord's Operating Agreements With Others
Other Covenants of Continuous Operation
Removal of Hazardous Materials
Landlord-Tenant Relationship
Landlord's Right of Entry
Brokerage Commissions
Interest on Obligations
Notices
Binding on Heirs and Successors
Time of Essence
Sole and Only Agreement
Exhibits
Invalidity or Unenforceability
Waivers
Captions
Reports by Tenants
m
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SHOPPING CENTER LEASE
This Lease is entered into effective , by and between Berkeley Land
Company, Inc., a California Corporation ("Landlord") and Chefs Touch Catering ("Tenant").
ARTICLE 1. LEASED PREMISES
Agreement to Lease
Section 1.01. In consideration of the agreements and covenants contained in this Lease to
be kept andperfonned by both Landlord and Tenant, Landlord leases to Tenant and Tenant
leases from Landlord the Premises described in Section 1.02 of this Lease.
"Premises" Defined
Section 1.02. "Premises" means the retail store space that is located at 11851 Dublin
Blvd, Dublin, California, consisting of approximately 5,630 square feet on the ground floor of
the Dublin Square Shopping Center, as is more particularly described on Exhibit A attached
hereto. "Premises" does not include, and Tenant has no right in, the land or improvements below
the floor slab of the PremisesGY above the interior ceilings of the Premises.
Right to Use Common Areas
Section 1.03. Tenant has the nonexclusive right to use, in common \vith others, the
Common Areas of the Shopping Center. The term "Common Areas" is defined in Section 5.02
of this Lease.
ARTICLE 2. TENANT'S BUSINESS USE AND NM1E
Permitted Business Use
Section 2.01. Tenant is leasing the Premises to operate and conduct the following
business: Food Catering. Tenant may not use the Premises or permit the Premises to be used for
any other purpose. Landlord does not represent or warrant that Tenant's permitted business use
is presently permitted or will be permitted in the future by applicable laws and regulations.
Tenant's Business Name
Section 2.02. The name of the Tenant's busine:;s is Chef's Touch Catering. Tenant may
not change its business name during the term of tbis Lease without the written consent of
Landlord. If Landlord consents to a change in the name, Tenantshall be solely responsible for
all costs of changing the name, includb.g costs of changing the name as it appears in any signs of
the Shopping Center, if any.
1
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ARTICLE 3. TERM OF LEASE
Commencement Date .
Section 3.01. The Commencement Date shall he Octoher 1, 1998.
ARTICLE 4. RENT AND OTHER CHARGES
Initial Minimum Monthly Rent
Section 4.01. Tenant agrees to pay Minimum Monthly Rent in the amount of$500.00 per
month for its use and occupancy of the premises. Minimum Monthly Rent shall be payable in
advance on the first day of each calendar month without notice, set off or deduction. lithe Term
begins (or ends) on other that the first (or the last day) ofa calendar month, the Minimum
Monthly Rent for the partial month shall be prorated on a daily basis, based on a 3D-day month.
Tenant shall pay Landlord the first installment of Minimum Monthly Rent when Tenant executes
this Lease. Rental amounts shall be as follows:
1. Rent shall be $500.00 per month beginning October 1, 1998, and will end on the
earlier of Tenant obtaining all proper permits for occupancy or January 31, 1999.
2. Rent shall be $1,000.00 per month for the next three months upon the expiration of
item #1 above.
3. Rent shall be increased to $2,000.00 per month upon the expiration of item #2 above
and shall continue each and every month thereafter.
Common Area Maintenance Cost.,
Section 4.02.(a) Tenant shall pay to Landlord, as additional rent a proportionate share of
Common Area Maintenance Costs (defined below). For each lease year, Tenant's proportionate
share of these costs shall be a sum equal to the product obtained by multip lying (1) the total
Common Area Maintenance Costs for the lease year by (2) a fraction, the numerator of which is
the number of square feet of gross grolL.'1d floor area of the Premises, and the denominator of
which is the number of total square feet of gross rentable ground floor area of all areas in the
Shopping Center O\vned by Landlord that are available for the exclusive use and occupancy of
Tenants of the Landlord.
(b) Tenant shall pay its proportionate share of Common Area Maintenance Costs in the
arnOlli'1t detennined and billed by Landlord quarterly; provided, however, Landlord may in its
discretion bill more or less frequently than quarterly. Payment shall be due within 10 days of
delivery afthe bin for such charges. The fu'110unt billed to Tenant shall be based on Landlord's
estimate of COITL.'11on Area Maintenance Costs for the current calendar year. That estimate shall
not exceed by more than 20 percent the total Common Area Maintenance Costs for t11t:
immediately preceding calendar year. V\Tithin 90 days after the end of each calendar year,
'f
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Landlord shall deliver to Tenant an itemized statement of the total Common .Area Maintenance
Costs ror the preceding calendar year. If the statement discloses an underpayment by Tenant for
the calendar year covered by the statement Tenant shall pay Landlord the amount of the
underpayment within 30 days from the date of the statement. lfthe statement disclosed an
overpayment by Tenant, Landlord shall pay to Tenant the amount of the overpayment within 30
days from the date of the statement; provided, however, that if Tenant is then in default or
otherwise indebted to Landlord under this Lease, Landlord may deduct the amount owed it from
the overpayment Landlord agrees that the common area maintenance charges together with the
taxes and insurance will be limited to $300.00 per quarter, or $1,200.00 on an annual basis.
(c) "Common Area Maintenance Costs" means the cost and expense of managing,
operating, and maintaining the COmrrlon Areas (defined in Section 5.02) in a manner deemed
reasonable and appropriate by Landlord, including but not limited to all costs and expenses of or
relating to the following: operating, heating, cooling, ventilating, repairing, cleaning, replacing,
lighting, painting, and maintaining the Common Areas; security services for the Shopping
Center; the insurances described in Section 9.01 of this Lease; regulation of traffic; repairing and
replacing paved surfaces, roofs, landscaping, drainage, electrical lines, all on-site personnel used
for the management, operation, and maintenance of the Shopping Center; vehicles and other
equipment used for the management, operation, and maintenance of the Shopping Center;
depreciation of machinery, equipment, and other non-real estate assets used in the maintenance
and.operation of the Shopping Center; and measures undertaken by Landlord to comply with any
environmental or similar law, ordinance, or regulation, including the removal of any hazardous
substance from the Shopping Center. Further, "Common Area Maintena..'1ce Costs" shall include
a management fee paid to Landlord or to a management company employed by Landlord and
equal)o fifteen percent (15%) of the total Common Area Maintenance Costs.
Utility Services and Charges
Section4.03.(a) Except for utility services as may be provided by Landlord pursuant to
Subparagraph (b) of this Section, Tenant shall apply to the appropriate local utility companies for
service on the premises, and shall pay the cost of any required deposit, hook-up fee, metering
charge, or other charge by the utility provider. Throughout the tenn oftms Lease, Tenant shall
pay, prior to delinquency, the cost of all utilities used on the Premises, whether supplied by a
local utility company or Landlord. When any service is separately metered and supplied by a
local utility company, Tenant shall arrange for the utility company to bill Tenant directly. In the
case of any utility services provided by Landlord directly to Tenant, Landlord shall bill Tenant
for those services quarterly or at other intervals at the same time Landlord bills Tenant for its
proportionate share of Common Area Maintena.."'1ce Costs, and Tenant shall pay the bill for those
services at the same time Tenant pays its share of Common Area Maintenance Costs. Fur utility
services provided by Landlord that are not separately metered and that are used by Tenant in
common with otber Tenants, Tenant shall pay Landlord a proportionate share based on total
square footage of gross ground floor area of all Tenants uFing the common utility services.
(b) Landlord may elect at any time during the term or this Lease, but without any
obligation to do so, to fu.rnish, or to select an agent or independent contractor to furnish, at.
':(
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"
"
Tenant's expense,any utility or utilities to the Premises. In that case, Tenant agrees to accept the
furnished utility services to the exclusion of any other provider, provided the charge to Tenant
for the furnished service is competitive with other providers or has been approved by the
appropriate regulatory agency. To the extent Landlord may-furnish any utility service to Tenant,
Tenant shall pay to the Landlord or as Landlord may direct, all costs and expenses associated
with such service including, but not limited to, connecting or disconnecting fees and all costs and
fees for the service consumed or provided to Tenant or the Premises. On at least 30 days' prior
written notice to Tenant, Landlord may discontinue furnishing any utility service previously
provided to Tenant. In that event, Tenant shall be responsible for obtaining replacement service
for the Premises from a provider acceptable to Landlord. Landlord has no responsibility for the
curtailment or suspension of any utility services to the Premises provided by a: local utility
company, or as may be furnished by Landlord regardless of the reason for curtailment or
suspension. Curtailment or suspension of utility services does not constitute a constructive
eviction under this Lease.
Taxes
Section 4.04.(a) Landlord shall pay all Taxes (defined below) that may be levied or
assessed against the lalld, buildings, or other improvements in the Shopping Center; provided,
however, that Tenant shall pay a proportionate share of Taxes as provided in this Section.
"Taxes" means any real property taxes, assessments, and other levies or charges imposed by a
governmental entity that are or may be levied., assessed, imposed, become a lien on, or arise in
connection with the use, occupancy, or possession of all or any portion of the Shopping Center or
t.rre land, buildings, or other improvements in the Shopping Center and including the Common
Areas. Notwithstanding the foregoing, "Taxes" do not include any inheritance, estate,
succession, transfer, gift, franchise, corporation, income, or profit tax that is or may be levied or
imposed on Landlord. Landlord also agrees to limit the t2..xes due to an overall limitation as
described in Section 4.02(b).
(b) Tenant's annual share of Taxes for each Tax Year (defined below) in the Original
Term and the extended term of the Lease shall be a sum equal to the product obtained by
mu1tiplying the total amount of all Taxes payable dlli-ing a Tax Year by a fraction, the numerator
of which is a nurnb~r equal to the total square feet of gross ground floor area i~ the Premises, and
the denominator of which is a number equal to the total square feet of rentable ground gross floor
area m the Shopping Center o-wned by Landlord designed exclusively for the use and occupancy
of Tenants that is open for business on the first day of the Tax Year (which does not include
COIT'..nJ.on Areas). Tenant's annual share of Taxes shall be paid in advance on a quarterly basis in
equal installments or upon such other intervals a..YJ.d in pro-rata installments based on the length or
the billing period as Landlord may determine and in the amount billed by Landlbrd~ concurrently
\vith Tena..'1t's payment of COJr...monArea Maintenance Charges under this Lease. At Landlord's
option, L3J"1dlord may estimate the amount of Tenant's quarterly or other periodic share of Taxes,
provided the estimate does not exceed by more thc"n 10 percent the actual amOllllt of Taxes for
the same caiencrr period in the immediately preceding Tax Year. An official tax bill or copy of
the tax bill shall be conclusive evidence of any amount taxed or levied. No later than March 31
of each Tax Year, Landlord shall present T ena.l1t with a written statement for the preceding Tax
Year, showing the total Taxes, the amolmt of Taxes actl.lally paid by Tenant for that Tax Year,
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and the amount of any underpayment or overpayment for that Tax Year ("Annual Tax
Statement"). Tenant shall pay the amount of any underpayment to Landlord within 30 days after
the date of the p..nD.ual Tax Statement. In the case of an overpayment, Landlord shall refund the
amount ofthe overpayment to Tenant within the same 30-day period governing underpayments;
provided, however, that if Tenant is then in default under this Lease or othel"\Vise indebted to
Landlord, Landlord may deduct the amount owed to it from the overpayment.
(c) "Tax Year" means the 12 full calendar months ofthe term beginning on January 1
immediately following the Commencement Date a.."1d ending on December 31 of that same
calendar year, and each successive 12-month period in the Original Term of this Lease and any
extended term; provided, however, that the first Tax Year under this Lease shall begin on the
Commencement Date and shall end on December 31 of the same calendar year. When the
Commencement Date is a date other than January 1 or when this Lease terminates on a date other
than December 31, Tenant's proportionate share of Taxes for either year, as the case may be,
shall be equitably prorated.
(d) Tenant shall not and shall have no right to contest the amount of any Tax assessed or
levied or the underlying valuation giving rise to the Tax for purposes of obtaining a Tax
reduction or for any other purpose. If Landlord obtains a refund of Taxes previously paid for a
Tax Year and for which Tenant has fully paid its proportionate share, Landlord shall refund to
Tenant its net proportionate share after first deducting all costs and expenses incurred by
Landlord:in obtaining the refund, includL."1g attorneys' and appraisers' fees. Landlord shall have
no duty to contest the amount of any Taxes imposed or levied on the Shopping Center.
Additional Rent
Section 4.05. In addition to the Fixed Rent payable by Tenant under this Lease, any other
monetary sum required under this Lease to be paid by Tenant to Landlord or to others is deemed
under this Lease to be additional rent payable by Tenant under this Lease ("Additional Rent"),
whether or not the monetary sum is so designated as Additional Rent. Unless otherwise
provided, all Additional Rent is due and payable at the same time as Fixed Rent, and Landlord
has the same remedies for Tenant's failure to pay Additional Rent as it has for Tenant's failure to
pay Fixed Rent. .
Late Charges
Section 4.06. Tenant aclr.nowledges that the late payment by Tenant to Landlord of rent
or any Additional Rent or other sums due hereunder will cause Landlord to incur costs not
contemplated in this Lease, the exact amount ofwruch will be extremely difficult and
impracticable to ascertain. Such costs include, but are not lL."TIited to, processing, administrative
and accounting costs. Accordingly, if any installment of rent or any additional rent of any other
sorne due from Tenant shall not be received by Landlord with.i...'1 ten (10) days after such amount
shall be due, Tenant shall pay to Landlord a late charge equal to five percent (5%) of the
delinquent amount. On no more than one (1) occasion during each twelve (12) months, Tenant
shall be entitled to notice of delinquency and a five (5) day grace period before any late charge is
imposed. The parties hereby agree that such late charges represent a fair and reasonable estimate
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of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late
charge by Landlord shall in no event constitute a waiver of Tena...."1t's default with respect to such
overdue amount, nor prevent Landlord from exercising any of the other rights and remedies
granted under this Lease.
ARTICLE 5. lV.i..AINTENANCE AND USE OF COMMON AREAS
Maintenance and Control
Section 5.01. All Common Areas (defined in Paragraph 5.02 of this Lease) of the
Shopping Center owned by Landlord are subject to the exclusive control of Landlord. Landlord
shall construct, maintain, operate, illuminate, and manage the Common Areas in a manner
determined appropriate by Landlord in its sole discretion. Landlord reserves the right from time
to time during the term of this Lease to (1) reduce or change the number, type, size, location, and
use of any facilities in the Common Areas; (2) construct new improvements, buildings, Or
facilities; or (3) remove existing improvements, buildi.ngs, or facilities in the Common Areas,
provided the change, construction, or removal does not permanently and umeasonably interfere
with Tenant's ingress and egress to the Premises. Landlord may employ and discharge all
persoIlllcl hired in connection with the Common Areas; police, and maintain security services
for, the Common Areas; use and allow others to use the Common Areas for any purpose;
regulate parking by Tenants and other occupants (including their respective employees) and by
customers of the Shopping Center; establish, modify, and enforce rules and re..gulations for the
COlThllOn Areas; and close the Common Areas when necessary to make repairs, changes, or
alterations to the Common l\reas or to prevent the acquisition of public rights in the COITL.'1lon
Areas. In the event of a cemporary closure of the Common Areas or the alteration,
rearrangement, or other change in the facilities of the Common.A..reas (1) Landlord shall not be
liable to Tenant for any resulting loss or damage; (2) Tenant shall not be entitled to any
abatement of rent or other compensation; and (3) the closure, alteration, rearrangement, or other
change shall not constitute an actual or constructive eviction of Tenant or other grounds for
Tenant to terminate this Lease.
"Common Areas" Defined
Section 5.02. "Corr..mol1 iIJeas" means all areas, facilities, space, equipment, and signs
made available by Landlord at any time for the common a..'1djoint use and benefit of Landlord,
Tenant, and other tenants and occupants of the portion ofthe Shopping Center o\VD.ed by
Landlord, including their respective employees, agents, customers, and invitees. "Common
Areas" includes the following, to the extent provided by La..idlord: parking areas, driveways,
access roads, landscaped areas, truck serviceways, loading facilities, pedestrian malls, stairs,
ramps, sidewalks, public restrooms, and elevators. The rights granted to Tenant to use the
Common Areas apply only to COl11...TJ:lon Pueas owned by Landlord.
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Tenant's Right to Use
Section 5.03. For the term of this Lease, Landlord grants Tenant and its employees,
agents, customers and invitees, the non-exclusive right, in common with Landlord and all others
to whom Landlord has or may grant the right, to use the Common Areas, subject to Tenant's
compliance with any rules and regulations enacted or modified by Landlord that govem the use
of the Common Areas. Tenant agrees to abide by and to use its best efforts to cause its
employees, agents, customers, and invitees to abide by Landlord's rules and regulations for the
Common Areas. Attached hereto as Exhibit C isa copy of Landlord's current Rules, if any.
Tenant and Employee Parking
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Section 5.04. Tenant and its employees shall park only in those areas that are designated
by Landlord as employee parking areas. Further, Landlord may limit the number and parking
location of delivery trucks or vans or other business vehicles of Tenant which are at any time in
the parking lot or other Common Area of the Shopping Center. Tenant shall at an times during
the term of this Lease keep Landlord furnished with a current list of license pla.te numbers for the
vehicles of Ten ant and its employees. Landlord may charge Tenant $10 per day per car for each
violation of this Section after giving Tenant written notice of the violation.
.4RTICLE 6. CONSTRUCTION AND REPAIRS
Condition of Premises
?Section 6.01. Tenant has inspected the Premises and accepts it in its "as is" condition.
Landlord makes no representations or warranties regarding the condition of the Premises, and
Tenant aclG10wledges that neither Landlord nor Landlord's agent has made any representations to
Tenant regarding the present or future condition of the Premises.
Alterations and Improvements by Tenant
Section 6.02. Tenant may not make any alterations or improvements to the Premises
during the term of this Lease without first obtaining the written consent ofLartdlord. Landlord's
consent to any such alterations or improvements shall not be unreasonably withheld. Any
alterations or improvements approved by Landlord shall be performed pursuant to plans and
specifications previously approved by Landlord for the specific alterations or improvements,
shall not in any way interfere with the normal business operation of Tenant or t~e Shopping
Center, and in all respects shan comply with the requirements for Tenant's Work described in
. Section 6.03 ohms Lease.
Tenant's Construction
Section 6.03.(a) At its sole cost and expense, Tenant shall commence and complete
consL'!'llction of all improvements or alterations to the Premises that are necessary for the conduct
of Tenant'5 business on the Premises ("Tenant's W ark"). All Tenant's Wark must be performed
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in strict accordance with the following: plans and specifications prepared by Tenant and
approved in writing by Landlord; and all other provisions of this Lease.
(b) If Tenant wishes to perform any alterations, Tenant shall submit two sets of plans and
specifications for Tenant's Work ("the Plans") to Landlord for Landlord's approval. Landlord's
approval shall not be unreasonably withheld. Within 30 days after Landlord's receipt of the
Plans, Landlord shall return the Plans to Tenant and advise Tenant in writing that the Plans are
approved as submitted or are approved subject to specific changes required to be made by
Tenant. In the latter event, Tenant shall submit to Landlord revised Plans incorporating the
changes required by Landlord with 10 days of its receipt of the conditionally approved Plans.
Landlord shall approve the revised Plans, provided they contain all required changes, no later
than 30 days after its receipt of them. 'Thereafter, Landlord shall promptly return the Plans to
Tenant and advise Tenant in writing that the Plans are approved. No later than 10 days after
Tenant receives the approved Plans from Landlord, Tenant shall apply for required permits and
otherwise commence construction to enable it to complete Tenant's Work as promptly as
possible. At the time Tenant submits the Plans to Landlord for its approval, Tenant shall pay
Landlord any amounts actually expended by Landlord in reimbursement for Landlord's expenses
for review of the Plans.
(c) During the period beginning on the date Tenant commences construction and ending
on the date Tenant completes construction (the "Construction Period"), Tenant shall procure and
maintain, in addition to the insurance described in Section 9.02 ofmis Lease, builder's risk
insurance for the Premises. This insurance shall cover the full replacement value of all work
performed and all fixtures and equipment installed on the Premises. Tenant or Tenant's
subcontractors shall also maintain in effect workers' compensation insurance as required by the
laws of the State of California.
(d) Tenant shall promptly pay all contractors involved in Tenant's Work and shall notify
each contractor and subcontractor in writing that (1) Tenant is solely responsible for payment of
all Tenant's Work, and (2) Landlord has no liability for that work. If a mechanic's lien or other
encumbrat'"lce relating to Tenant's Work is filed against Landlord, the Premises, or any other
portion of the Shopping Center, Tenant shall, at Tenant's sole cost and expense, cause the lien or
other encumbrance to be discharged of record or bonded within 10 days after 'Landlord' s written
notice to Tenant. If Tenant fails to discharge or bond a lien or other encumbrance within the
required time period, Landlord has the right (but not the obligation) to pay the amount of the lien
or encmnbrance or to otherwise discharge it by deposit or bonding. If Landlord pays or
otherurise causes discharge of the lien or encumbrance, Tenant shall reimburse Landlord, on
Landlord's written demand, for the amount expended by Landlord (including all attorneys' fees
and expenses), plus interest, at the then-maximum legal rate of interest, accruing from the date of
Landlord's expenditure until paid by Tenant. La..."1dlord's right to pa.y or otheIil\'ise discharge
such a lien or encumbrance does not preclude Landlord from exercising any other rights or
remedies under this Lease, at law, or in equity.r
(e) In performing or causing Tenant's Work to he performed, Tenant, at Tenant's sole
cost and expense, shall comply with all applicable laws, regulations, orders, and requirements of
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any governmental entity having jurisdiction. Further, Tenant shall obtain all necessary permits
required by governmental entities or utility companies. Tenant shall use or cause to be used only
new materials in Tenant's Work. At all times during the Construction Period., Tenant shall insure
that its construction does not in any way interfere with the nonnal business operation of the
Shopping Center. Any materials, equipment, or other items used in the construction shall be kept
at all times in the interior of the Premises. The Premises shall be barricaded at the storefront line
by full-height barricades so as to prevent access by the public or other non-construction
personnel. All debris and rubbish shall be confined to the interior of the Premises and shall be
removed at regular intervals by Tenant. lfany portion of Tenant's Work is damaged or
destroyed by any cause during the Construction Period, Tenant shall immediately, at its sole cost
and expense, repair or rebuild the damaged portion. Tenant's Work shall be deemed complete
when a certificate of occupancy for the Premises is filed for record.
(f) Landlord's approval of Tenant's Plans or of Tenant's Work shall in no way be
deemed to mean that Tenant's Plans are adequate, Tenant's construction is structurally sound, or
that the Plans or construction comply with applicable governmental requirements for building,
safety, or otherwise. Tenant shall be solely responsible for any defect in construction or design
of Tenant's Work.
(g) Tenant assumes all liability for personal injury or property damage in any way arising
out of the performance of Tenant's Work. Further, Tenant agrees to defend, indemnify, and hold
harmless Landlord against all damages, liabilities, or other costs or expenses (including legal fees
and costs) that Landlord may payor incur as a result of any claim or lawsuit arising from
Tenant' s:"W ork.
Alterations and Improvements by Landlord
Section 6.04. Landlord may at any time make additions or alterations to any building in
the Shopping Center, including the building containing the Premises. Landlord may also
construct additional improvements or buildings in the Shopping Center, expand or reduce the
size orthe Shopping Center, Common Areas or parking lots in the Common Areas, construct
multi-level above-ground and/or below-ground parking facilities or garages, and enclose any
open areas of the Shopping Center. Further, Landlord may at any time use any part of the
exterior walls, roof, or air space above the finished ceiling of the Premises to carry out any
construction described in this Section or any repairs described in Section 6.05 or Article 7.
Repairs to Premises
Section 6.05.(a) Landlord sha.ll maintain and keep 1"'1 good order, condition, and repair
tl.1e foundations, exterior walls (excluding the storefront wall, windows, doors, and plate glass),
and the roof ofthe Premises. Lan.dlord's obligation for repairs under this Section extends only to
damage not caused by Tenant or Tenant's employees, customers, contractors, agents, or invitees.
Landlord is not obligated to malce a..'I1y repair, except in the case of emergency, until it receives
Vvntten notice from Tenant of the necessity for the repair. In making any repairs, La.'I1dlord shall
w,e its best efforts to perform the work with a minimum of disruption to Tenant's business.
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(b) At its sole cost and expense, Tenant shall maintain the Premises in good order and
repair. This obligation to maintain and repair extends, but is not limited, to the following
portions ofthe Premises: the interior of all walls, floors, and ceilings; the interior and exterior of
all doors and windows and the storefront; all plumbing and .sewage facilities that serve the
Premises; and air-conditioning and heating systems, if any. Tenant's obligation to maintain and
repair does not extend to any areas or portions ofthe Premises that landlord is required under this
Lease to maintain and repair. If Tenant fails to make any necessary repairs within 10 days after
written notice from Landlord, or after reasonable notice to Tenant in the event of any emergency,
Landlord may malce the repairs and Tenant shall pay the cost of the repair to Landlord as
Additional Rent. This payment shall accompany the next due monthly payment of Fixed Rent
and shall inciude interest at the then-rpaximum legal rate.
Ownership of Improvements
Section 6.06. All alterations, additions, and improvements, except for Tenant's stock in
trade, trade fixtures, furniture, and furnishings, made or placed in or on the Premises by Tenant
or any other person shall on expiration or earlier termination of Lease, become the property of
Landlord and remain on the Premises. Lfuidlord shall have the option, however, on expiration or
termination of this Lease, of requiring Tenant, at Tenant's sole cost and expense, to remove fu'1Y
or all such alterations, additions, and improvements from the Premises.
ARTICLE 7. DESTRUCTION OF PREJv.ITSES OR SHOPPING CEI\TTER
Notice of Damage
Section 7.01. Within 24 hours of its occurrence, Tenant shall notify Landlord of any
damage or accident occurring on the Premises.
Damage or Destruction From Insured Casualty
Section 7.02. Subject to the limitations set forth in this Section, if any time during the
term of this Lease, the Premises are dmnaged or destroyed by fire or any other casualty covered
by Landlord's fire and extended coverage insurance, Lfu'1dlord shall promptly re'iJair, rebuild, or
restore the Premises to substantially the same condition as was originally delivered to Tenant
under this Lease. Not01ithstanding the foregoing, Landlord shall not be obligated to expend for
repairs or rebuilding an amount in excess of the net insurance proceeds for damage to the
Premises recovered by it. "Net irlsurance proceeds" means the total amount of proceeds
recovered and attributable to the Premise, less any expenses incurred by Landlord in recovering
the proceeds; and less any amount required to be paid to Landlord's Lender (defined in Section
10.01 of this Lease). LaD.dlord shall commence repair, restoration, or rebuilding work, as
appropriate, not later than 60 days after the occurrence of the event causing damage Of
destruction, and shall cause construction to be completed not later than 180 days after the
occurrence of the event causing dam.age or destruction. If Landlord does not commence or
complete Tenant shall have the right to tenninate this Lease by giving Landlord written notice
with 10 days after expiration oftne applicable time period.
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Right to Terminate Lease
Section 7.03. Notwithstanding Section 7.02 oftms Lease, Landlord shallhave the right
to terminate this Lease .and shall have no obligation to repair, restore, or rebuild the Premises or
the Shopping Center, as the case may be, under any of the following circumstances:
(a) The premises are damaged or destroyed by a casualty not covered by Landlord's
Insurance.
(b) Either the Premises of the building in the Shopping Center containing the Premises is
damaged or destroyed by any cause (whether or not the damage or destruction actually
includes the Premises), and th; cost of repair, restoration, or rebuilding exceeds a total of
45 percent oIthe then-replacement cost of the building.
(c) At le~.jp percent of the gross leasable floor area of the Shopping Center is
destroyed or damaged by any cause, whether or not the damage or destruction actually
includes the Premises.
(d) The Premises are damaged in whole or in part by any cause during the last two years
of the Original Term ofthis Lease.
If Landlord elects to terminate this Lease lL."1der any ofthe above circumstances, Landlord
shall give written notice to Tenant not later than 30 days after occurrence oft.~e casualty. This
notice shall set forth the date on which the termination is to be effective. That date shall not be
less than 30 days nor more than 60 days after the date of the termination notice. If the type of
partial or total destruction described in Subparagraph (d) of this Section occurs, Tenant shall
have the same right as Landlord to terminated this Lease, subject to the same notice require-
ments, provided that Tenant gives its notice oftermination of the Premises.
Abatement of Rent
Section 7.04. If damage or destruction to the Premises renders the operation of Ten ant's
business wholly impossible and Tenant in fact ceases to operate its business, the Minimum
Monthly Rent payable under this Lease shall abate either during the period beginning on the date
of the casualty and ending on the date Landlord completes repairs, restoration, or rebuilding; or,
ifthe damage or destruction results in the termination ofthis Lease, on the date of termination. If
Tena....'1t is able to continue partial operation of its business, the Minimum Monthly Rent shall be
abated proportionately based on the percentage of ground floor area of the Premises Tenant is
able to OCCUf'Y.
Obligations fOJ;:" Repair ot Rebuilding
Section 7.05. If this lease is not tenninated pursuant to the provisions of this A..."iicle,
Landlord's obligation to repair and rebuild is fur..ited to construction of the perimeter wans, flcar,
ceiling, and roof of the Premises, and excludes interior finiShi.l1g and the storefront for t.1)e
Premises. The Premises as completed by Landlord shall contain approximately the same amount
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of gross floor areas as existed prior to the damage or destruction. Tenant must, at its own cost
and expense, repair and rebuild the Premises to the extent not repaired or rebuilt by Landlord, in
accordance with plans and specifications approved by Landlord and in all other respects in
accordance with Sections 6.02 and 6.03 of this Agreement relating to Tenant's Work. Tenant
shall commence its repair and rebuilding and diligently pursue the work to completion promptly
after receiving written notice from Landlord that Landlord has completed its repair and
rebuilding obligations.
Payment of Insurance Proceeds
Section 7.06. All insurance proceeds payable with respect to the Premises shall belong to
and be payable to Landlord. If Landlord does not elect to terminate this Lease, the insurance
proceeds, subject to any prior rights of Landlord's Lender (defined in Section 10.01), shall be
disbursed in the following order: first, to Landlord's cost of rebuilding or restoration; second, to
Tenant's cost ofrebuilding or restoration, excluding costs covered by Tenant's insu""aIlce and
also excluding the cost of any Tenant trade fixtures or stock in trade; and third, to Landlord, as
Landlord's sole property. No amount shall be paid to Tenant until after the completion of
Tenant's Work and the expiration of the period during which a mechanic's lien arising from
Tenant's Wark could be filed.
.ft,RTICLE 8. USE OF PRKMISES
Storage
Section 8.01. Tenant may store o-p. the Premises only goods and merchandise intended
for retail sale by Tenant from and on the Premises.
Condition of Premises
Section 8.02. Tenant shall at all times keep the Premises (including the interior and
exterior storefront surfaces) in a clean, safe, Slli"1itary, and orderly condition. At is sole expense,
Tenant shall replace any cracked or broken storefront glass on the Premises with glass equal in
quality and similar in kind to that originally installed on the Premises. '
Prohibited Actions
Section 8.03. Tenant may not do any of the following on the Premises:
(a.) Permit or commit any waste.
(b) Operate, cause, or permit to be operated any catalogue, mail, or telephone
order sales in or from the Premises, except for the incidenta.l telephone sale of
merchandise that Tenant is pennitted to sell on the Premises to customers.
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(c) Permit or conduct any public or private auction on the Premises or any sale
that would or would tend to indicate that Tenant is going out of business, is bankrupt, or
has lost its lease.
(d) Place or permit the placement of any pay telepho:q.es, vending machines
(except those intended for the exclusive use of Tenant's employees), or amusement or
video games on the Premises, without the prior written consent of Landlord.
( e) Use or permit the Common Area adjacent to the Premises to be used for the
display or sale of merchandise or for any other business purpose.
(f) Permit the making Of any noise or sounds that carry beyond the boundaries of
the Premises, whether through loudspeakers, other types of electronic devices, or
othenvise.
(g) Conduct or permit any type of unlawful conduct on the Premises.
(h) Store or use any hazardous substances or materials on the Premises.
Compliance with Laws
Section 8.04. At its sole expense, Tenant shall comply with all governmental laws, rules,
regulations, orders, and ordinances relating to the Premises and to the use and occupancy of the
Premises, including any requiring a capital expenditure for or capital improvements to the
Premises. Tenant shall also maintain and keep in force.alllicenses and permits required by
governmental authorities and shall comply with all requirements, recommendations, and
regulations of Landlord's and Tenant's insurance companies.
Signs and Advertising
Section 8.05. Other than the signage existing on the Commencement Date, Tenant shall
not place, install or maintain any other sign, awning, canopy, advertising, or other matter on the
exterior of the Premises (including the storefront window and door), or in any place inside the
Premises that is visible from the exterior storefront, W11ess it obtains the prior approval of
Landlord. Tenant shall maintain all signs and other items described in this Section in good
condition and repair and in compliance with any rules adopted by Landlord or as may be
modified by Landlord regarding signage.
Rules and Regul.ations
Section 8.06. Landlord shall have the right from time to time to adopt, amend, or
supplement rules a..Tld regulations relating to the Premises, the Common Areas, and the Shopping
Center. Rules and regulations in effect as ofthe date afmis Lease, if any, are attached to t.1Us
Lease as E:xj1.ibit C and are hereby incorporated by reference. Landlord shall notify Tenant in
writing of allY amendment or modification made to the rules and regulations. Rules and
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regulations shall apply uniformly to all tenants in the Shopping Center. Tenant agrees to comply
with all rules and regulations; a failm-e by Tenant to so comply shall constitute a breach under
this Lease.
Assignment and Sublease
Section 8.07.(a) Tenant shall not do any of the following without first obtaining the
written consent of Landlord: assign, sell, mortgage, or in any other manner transfer this Lease or
any interest of Ten ant in the lease; sublet the whole or any part of the Premises; or permit all or
any part of the Premises to be used or occupied by others (whether through the grant ofa
concession, license, or otherwise). Any consent requested from Landlord may be given or
withheld by Landlord as Landlord in its sole discretion determines and Landlord may condition
its consent to any assignment or subk:.lSe where the assignee or sublessee is an entity and not an
individual or individuals on the individual owners of any interests in the proposed assignee or
sublessee entity signing and delivering to Landlord a guaranty in form as Larldlord deems
appropriate. .FillY consent given by Landlord under this Section applies only to the specific
transfer transaction for which it is given, and Landlord's consent to a specific transfer transaction
does not relieve or excuse Tenant from the requirement that Tenant obtain the prior written
consent of Landlord for any subsequent transaction. Any transfer described in this Section,
whether made with or without La."'1dlord's prior written consent, does not relieve Tenant of
personal liability for the performance as a Tenant of applicable terms and covenants under this
Lease (including the payment of rent), unless Landlord executes a \X/ritten agreement for a
specific transfer that provides otherwise. The prohibitions against transfer described in this
Section include any transfer tra.'1saction described above that occurs by operation onaw, legal
process, receivership, bankruptcy, or otherwise, whether voluntary or involuntary.
(b) Without in any way waiving its right to approve or disapprove any transfer
transaction described in this Section, Landlord may (1) collect Tent from an assignee, subtenant,
user, or occupant of the Premises following any transfer described in this Section, whether or not
Landlord gave its prior written consent for the trlli"1sfer, and (2) apply the collected amount to the
rent due from Tenant under this Lease. In addition, if the rent or other consideration payable to
Tenant by a subtenant, assignee, licensee, or other tTansferee exceeds the rent payable under this
Lease, Tenant shall pay to Landlord an amount equal to excess of the amount of rent or other
consideration payable to Ten;:mt over the amount of rent payable under this Lease by Tenant to
Landlord.
(c) Any sublease, assignment, or other f:I'at'1Sfer agreement described in this Section must
recite the following: that it is subject and subordinate to this Lease; and that the termination by
Landlord dthis Lease will, at Landlord's sole option, terminate the sublease, assignment, or
oHler transfer agreement.
(d) The tra."'1sfer of corporate shares of Tenant by assignment, sale, bequest, irll1.eritance,
operation of law, or other disposition shall Dot be considered a prohibited transfer tra.'1saction
under this Lease ifit results in the shareholders of Ten ant as of the Commencement Date holding
at least 51 percent of the voting power of the corporation.
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(e) Tenant shall pay Landlord a fee of $500 to cover Landlord's administrative costs,
overhead, and attorneys; fees in connection with an assignment, sublease, or other transfer
transaction approved by Landlord. Tenant shall pay this fee before Landlord executes the
document evidencing Landlord's consent to the transfer. <
Covenant of Continuous Business Operation
Section 8.08. Tenant shall conduct its business in a businesslike and efficient manner on
the Premises with minimum hours of operation as set forth in the Shopping Center Rules, if any.
ARTICLE 9. INSUR.4..NCE
Insurance By Landlord
Section 9.01. Landlord shall procure and maintain du..ring the entire term of this Lease,
the following insurance coverage: fire and extended coverage insurance in an amount equal to
not less than 90 percent of the full replacement value of all improvements constructed or
installed by Landlord in the Shopping Center and by Tenant in the Premises (excluding Tenant's
trade fixtures). In addition to the foregoing insurance, Landlord in its sole discretion may
procure an~ maintain other insurance covering for Shopping Center, including the following:
liability ins\rrance for personal injury, death, and property damage; workers' compensation
insurance cOvering Landlord's personnel; fidelity bonds for personnel; insurance against liability
for defamation and claims of false arrest occurring in and about the Common Areas; rental
insurance and plate glass insurance for glass located in or on the Common Areas. The cost of
any insurance procured by Landlord for the Shopping Center,. whether mandatory or optional
under this Section, is a Common Area Maintenance Cost for which Tenant is obligated to
contribute its proportionate share as described in Section 4.04 of this Lease.
Insurance by Tenant
Section 9.02.(a) Tenant shall, at its own cost and expense, procure and maintain during
the entire term of this Lease the following insurance coverage:
(1) Comprehensive general public liability insurance insuring against the risks of
bodily injury, property damage, and personal injury liability occurring on the Premises or
arising out of Tenant's use or occupancy of the Premises, with a combined single limit of
liability of at least $1,000,000 and a general aggregate limit of at least $2,000,000. At
least every three Yt~ar, but not more frequently, Tenant shall increase the amount of public
liability coverage, jf at that time the existing coverage is not adequate in the opinion of
Landlord's insurance broker or Lender.
(2) Fire and extended coverage insurance, and vandalism and malicious mischief
insurance, insuring Tenant's fixtures, goods, wares, and merchandise in or on the
Premises for 100 percent of their full insurable and replacement costs, without deduction
for depreciation.
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(3) Plate glass insurance covering all plate glass on the Premises.
(4) Business interruption insurance, payable in the event of a loss covered by the
fire and extended coverage or vandalism and malicious mischief insurance Tenant is
required to maintain. in an amount not less that the amount of Tenant's Minimum
Monthly Rent and proportionate share of Taxes and Common Area Maintenance Costs
for a 12-month period following any damage or destruction.
(5) Workers' compensation insurance as required by the laws ofthe State of
California.
Tenant's policy ofiiability insUrance shaUlist Landlord as an additional or arramed
insured and shall also contain an endorsement that although Landlord is listed as an additional or
a named insured, Landlord shall be entitled to recover under the policy for any loss or damage
occasioned ~o it o~ its agents or employees by reason of Tenant's negligence.
(b) Any insurance policy Tenant is required to procure and maintain under this Lease
shall be issued by a responsible insurance company or companies licensed to do business in the
State of California. Further, each such policy shall provide that it may not be canceled,
terminated, or changed except after 30 days' prior written notice to Landlord. Tena.,'1t may
maintain all or part of the insurance required under this Lease by means of a blan.."'<et insurance
policy so long as the provisions ofthis Article are satisfied. Tenant must deliver to Landlord
duplicate originals or certificates of all insurance policies procured by Tenant.
(c) Tenant may not do, omit to do, permit to be done, or keep anything in or on the
Premises that will violate the provisions of Landlord's fire and extended coverage insurance
policy or otherwise adversely affect the premium.; paid by Landlord or Landlord's ability to
maintain the insurance in effect. If any such act or omission by Tenant results in an increase in
Landlord's premiums for any polick:s on the Premises or the Shopping Center, Tenant shall pay
the amount of the increase. Landlord may also, at Landlord's option, rectify the condition
causing the increase if Tenant fails to do so. In that case, on demand of Landlord, the amount
expended by Landlord shall be immediately due and payable by Tenant as Additional Rent.
(d) If during the t<~rm of lhis Le2.se Tenant fails to secure or maintain the insurance
required under this Lease, Landlord may obtain the insurance for the Premises in Tenant's name
or as the agent of Ten ant, and Tenant shall compensate Landlord for the cost ofthe insurance
premiu.."TIs. Tenant shall reimburse Lfu"'1dIord the full amount paid no later that 10 days from the
date written notice is received that the premiums have been paid. A failure by Tenant to make
rei.'n.bursement within the time reqljred under this Subpara.graph shall be considered a default
under this Lease.
Su'n'ogation'Vaiver
Section 9.03. Landlord and Tenant agree tl'1at in the event of1oss due to any of the perils
for wrJch they have agreed to provide insurance, each party shall look solely to its insurance for
recovery. Landlord and Tenant hereby gra..'lt to each other, on behalf of any insurer providing
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insurance to either of them with that respect to the Premises, a waiver of any right of subrogation
that any such insurer of one party may acquire against the other by virtue of payment of any loss
under that insurance.
Proceeds
Section 9.04. Except as otherwise provided in this Lease, proceeds from any policy or
policies shall be payable to the party responsible for the payment of insurance premiums.
Indemnification
Section 9.05. Landlord shall not be liable to Tenant, and Tenant hereby waives all claims
against Landlord, for any injury or damage to any person or property on or about the Premises by
or from any cause whatsoever, excepting injury or damage to Tenant resulting solely from the
acts or omissions of Landlord or Landlord's authorized agents. Tenant agrees to indemnify, hold
Landlord harmless from and defend Landlord, including payment of attorneys' fees and costs,
against any and all claims or liability for any injury or damage to any person or property
occurring in, on, or about the Premises or Common Areas or any part of the Premises or
Common Areas, including liabilities assllJ."TIed by Landlord under contract but excepting any
damage or injury caused solely by the act or omission of any duty by Landlord or Landlord's
agents or employees.
ARTICLE 10. SUBORDINATION, ATTORNMENT, MID ESTOPPEL CERTIFICATES
Subordination
Section 1O.Ol(a) Except as provided in Subparagraph (b) oftms Section, this Lease and
all of Tenant's rights in the Lease shall be subject and subordinate to any mortgage, deed of trust,
ground lease, or other instrument of encumbrance (collectively referred to in this Section as a
"security instrument") that is now or hereafter placed against any part of the real property on
which the Shopping Center is located, the Premises, or any or all of the building currently or in
the future located in the Shopping Center. On written request of the holder of any security
instnnnent ("Lender") or Landlord, Tenant shall execute, acknowledge, and deliver any
documents evidencing subordination that the Lender or Landlord may reasonably request. For
each security instrument, the Lender shall agree in writing that, in the event of a default under
the security instrument, Lender shall not terminate this Lease and shall not disturb Tenant's right
to possession under this Lease, provided Tenant is not then in default under this Lease and
continues thereafter to fully perfonn all its obligations under this Lease.
(b) Notwithstanding the provisions of Subparagraph (a) oftms Section, any Lender may
subordinate its security instrument to this Lease by executing and recording a written document
subordinating its security instrument to this Lease as provided in the document. In that case, this
Lease shall be deemed prior to the security instrument as provided in t,1.e document, without
regard to the execution, delivery, or recording dates ofthe subordination instrument described in
this Subparagraph shall not require the consent of Tenant, but Tenant agrees to execute and
deliver, in recordable form, an instn.L.'1lent requested by Lender or Landlord to confum or
acknowledge the subordination.
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Attornment
Section 10.02. If Landlord transfers its interest m the Premises or if any proceeding is
brought to foreclose any mortgage, deed of trust, or instrument to secure debt affecting the
Premises or any ground lease made by Landlord, Tenant shall attorn to the purchaser or
transferee 0 f Landlord's interest.
Estoppel Certificates
Section 10.03. Tenant agrees to execute, in recordable form, and deliver to Landlord or a
Lender (as defined in Section 10.01 of this Lease), when requested by Landlord or a Lender, an
estoppel certificate regarding the status'ofthis Lease. The certificate shall be in the fonn
designated by Landlord or the Lender and shall contain at a minimum the following: (1) a
statement that the Lease is in full force and effect "rjth no modifications, or a statement that the
Lease is in full force and effect as modified, together with a description of the modifications; (2)
the Commencement Date and expiration date of this Lease; (3) the amount of advance rent, if
any, paid by Tenant, and the date to which the rent has been paid; (4) the amount of any security
deposit deposited with Landlord; (5) a statement indicating whether or not Landlord is, in
Tenant's good faith opinion, in default under any of the terms of this Lease, and ifso, a
description ofllie alleged default and of any defense or offset claimed by Tenant; and (6) any
other information reasonable required by Landlord or Lender. Tenant shall deliver the certificate
to the requesting party not later than 15 days after the date of the written request for the
statement. Tenant's failure to deliver the certificate within the foregoing time period shall
constitute an acknowledgment by Tenant that this Lease has not been assigned or modified.; that
the Lease is in full force and effect; and that all rent payable under this Lease has been fully paid
up to but not beyond the due date immediately preceding the date of Landlord or Lender's
written request for the statement. Such an acknowledgment may be relied on by any person
holding or intending to acquire any interest in the Premises or the Shopping Center. Tenant's
failure to timely deliver the required certificate shall also constitute, as between Tenant and the
persons entitled to rely on the statement and as between Tenant and Landlord, a waiver of any
defaults by Landlord or of Tenant defenses or offsets against the enforcement of this Lease that
may exist prior to the date of the written request for t"1e statement. Landlord may also treat
Tenant's failure to deliver the certificate as a default under this Lease.
ARTICLE 11. CONDEMNATION
Termination of Lease
Section 11.01. If at any time during the term of this Lease, title and possession of all of
the Premises or of 40 percent or more of the gross floor area of the Premises is tIken under the
power of eminent domain by any public or quasi-public agency or entity, this Lease shall
terminate as of 12:01 A.M. of the date achml physical possession Gfthe Premises is taktm by the
agency or entity exercising the power of eminent domain. Thereafter, bJth L3.J.idlord and Tenant
shall be release from all obligations under this Lease, sLlbject to the provisions of Section 11.04
of this Lease.
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Continuation of Lease
Section 11.02. If the portion of the Premises taken under the power of eminent domain is
less than 40 percent of the gross floor area bfthe Premises,.the following will occur:
(a) This Lease shall terminate as to the portion taken as of 12:01 A.M. of the day
actual physical possession of that portion of the Premises is taken by the agency of entity
exercising the power of eminent domain (the "date of taking").
(b) This Lease shall continue in effect for the remainder of the Premises not
taken. Beginning on the day and at the time described in Subparagraph (a) of this
Section, the Minimum Montb:ly Rent payable by Tenant under this Lease shall be reduced
by the same proportion that the gross floor area taken bears to the gross floor area of the
Premises prior to the taking. Promptly after the taking described above, Landlord shall,
at Landlord' sexpense, restore the Premises not taken by eminent domain to a condition
making the Premises tenantable by Tenant for the use permitted by this Lease; and Tenant
shall, at Tenant's expense, make all necessary repairs to Tenant's fixtures, equipment,
and furnishings.
Option to Terminate Lease
Section 11.03. Landlord shall have the right to terminate this Lease iftitle and possession
of the following is taken under the power of eminent domain, whether or not the takil'1g includes
any portion of the Premises:
(a) More than 40 percent of the gross floor area ofthe.building containing the
Premises;
(b) More than 40 percent of the Common Areas of the Shopping Center.
(c) More than 40 percent of the leasable floor area of the Shopping Center; or
Cd) Allor a portion of the parking area of the Shopping Center, provided the
taking causes the Shopping Center to violate the requirements of the then-applicable
zoning law governing the size, location, layout, or other features of the parking area.
Notwithstanding the foregoing, this Lease shall continue in full force and effect if
Landlord, immediately after the agency or entity exercising the power of eminent domain
takes actual physical possession of the parbng area, commences to correct the
circumstances giving rise to the right to terminate this Lease, either through obtaining a
variance or an exception to the then-applicable zoning law or by providing additional
substitute parking areas. TIns action must be at Landlord's sole cost and expense.
Landlord may exercise the foregoing right to terminate this Lease by giving written
notice to Tenant at lease 30 days prior to the termination date, which shall be the date actual
physical possession of the Premises is taken by the agency or entity exercising the power or
ewinent domain.
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Condemnation Award
Section 11.04. If at any time during the term of this Lease, title and possession of all or
any portion of the Premises of the Shopping Center is taken. under the power of eminent domain,
the compensation or damages for the taking shall be awarded to and be the sole property of
Landlord, and Tenant shall have no right or claim to that compensation or damages.
\lVaiver
Section 11.05. Landlord and Tenal1t each agree that this Lease shall govern the
respective rights and obligations of each party in the event of a taking by eminent domain.
Landlord and Tenant each hereby waives any right either may have at law to petition the court
for tennination of tllis Lease in the event of a. partial taking of the Premises.
ARTICLE 12. DEFAULT AND TERMINATION
"Default" Defined
Section 12.01. The occurrence of any of the following constitutes a default and breach of
this Lease by Tenant:
(a) ..6J1y failure by Tenant to pay the rent or to make any other payment required
to be made by Tenant under this Lease, when the failure continues for 10 more days after
written notice from Landlord to Tenant.
(b) The abandonment of the Premises by Tenant. For these purposes, the absence
of Ten ant from or the failure by Tena..'"lt to conduct business on the Premises for a period
in excess of 14 consecutive days shall constitute an abandonment.
(c) A failure by Tenant to observe or perfonn any other provision of this Lease to
be observed or performed by Tenant, when the failure continues for 30 days or more after
v'utten notice of Tenant's failure is given by Landlord to Tenant; provided, however, that
if the default ca..rmot reasonably be cured within the 30-day cure period, Tena..nt shall not
be deemed to be in default if Tenant commences the cure within the 30-day cure period
and thereafter completes the curative action witbn a reasonable time.
(d) The making by Tenant of any general assignment for the benefit of creditors;
the filing by or against Tenant of a petition to have Tens.nt adjudged a bankrupt or of a
petition for reorganization or arrangement lliider any law relating to banknlptcy (Wl1eSS,
in the case of a petition filed against Tenant, it is dismissed withiL1 60 days); the
Rppointment 0 f a trustee or receiver to take possession of substantially all of Tena"lt' s
assets located at the Prc,mises or ofTemmt's intereST: in this Lease, when possession is not
restored to Tenant withm 30 days; or the attacl1..ment, execution, or other judicLll seizure
of substantially all of Ten ant's assets located at the PreIPises or of Tenant' s interest in
this Lease, when that seizure is not dischcrged within 30 days.
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Termination of Lease and Recovery of Damages
Section 12.02. In the event of any default by Tenant under this Lease, in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have the right to
terminate this Lease and all rights of Ten ant under this Lease by giving written notice of the
termination. No act of Landlord shall be construed as terminating this Lease except written
notice given by Landlord to Tenant advising Tenant that Landlord elects to terminate the Lease.
In the event Landlord elects to terminate this Lease, Landlord may recover the following from
Tenant:
(a) The worth at the time of award of any unpaid rent that has been earned at the
time of termination of the Lease;
(b) The worth at tl~ time of award of the amount by which the unpaid rent that
would have been earned after termination of the Lease until the time of award exceeds the
amount of rental loss that Tenant proves could have been reasonably avoided;
(c) The worth at the time ofaward of the amount by wruch the \ill.paid rent for the
balance of the term of this Lease after the time of award exceeds the amO\ill.t of rental loss
that Tenant proves could be reasonably avoided; and
(d) Any other amount necessary to compensate Landlord for all detriment
proximately caused by Tenant's failure to perform its obligation under this Lease.
The term "rent" is used in the Section shall mean the Minimum Monthly Rent, and all
other sums required to be paid by Tenant pursuant to the terms oftrus Lease. As used in
Subparagraphs (a) and (b) ofthis Section, the "worth at the time of award" is computed by
allowing interest at the rate of 10 percent per year. As used in Subparagraph (c) of the Section,
the "worth at the time of award" is computed by discounting the amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus 1 percent.
Landlord's Right to Continue Lease in Effect
Section 12.03. If Tenant breaches this Lease and abandons the Premises before the
natural expiration of the term of this Lease, Landlord may continue this Lease in effect by not
terminating Tenant's right to possession of the Premises, in which event Landlord shall be
entitled to enforce all its rights and remedies under this Lease, including the right to recover the
rent specified in this Lease as it becomes due under this Lease. For as long as Landlord does not
terminate this Lease, Tenant shall have the right to assign or sublease the Premises, subject to the
requirements of Section 8.07 of this Lease. No act of Landlord (including an entry on the
Premises, efforts to relet the Premises, or maintenance of the Premises) shaH be construed as an
election to terminate this Lease lL'lless a written notice of termination is given to Tenant or the
tem1ination of this Lease is decreed by a court of competent jurisdiction.
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Landlord's Right to Reiet
Section 12.04. In the event Tenant breaches this Lease, Landlord may enter on and relet
the Premises or any part of the Premises to a third party for any tenn, at any rental, and on any
other terms and conditions that Landlord in its sole discretion may deem advisable, and shall
have the right to mal:::e alterations and repairs to the Premises. Tenant shall be liable for an of
Landlord's costs in reletting, including remodeling costs required for the reletting. In the event
Landlord relets the Premises, Tenant shall pay all rent due under and at the times specified in this
Lease, less any amount or amounts actually received by Landlord from the reletting.
Landlord's }1ight to Cure Tenant Defaults
Section 12.05. If Tenant breaches or fails to perform any of the covenants or provisions
of this Lease, Landlord may, but shall not be required to, cure Tenant's breach. Any sum
expended by Landlord, with the then-maximum legal rate of interest, shall be reimbursed by
Tenant to Landlord with the next due rent payment under tIllS Lease.
CumuJative Remedies
Section 12.06. The remedies granted to Landlord in this Article shall not be exclusive but
shall be cumulative 3..'1d in addition to all remedies now or hereafter allowed by law or provided
in this Lease.
VVaiver of Breach
Section 12.07. The waiver by Landlord of any breach by Tenant of any of the provisions
of this Lease shall not constitute a continuing waiver or a waiver of any subsequent breach by
Tenant either or the same or another provision of this Lease.
Surrender on Termination
Section 12.08. On expiration of the term of this Lease or the earlier termination of this
Lease, Tenant agrees to su.l"Tender the Premises in good order and condition (reasonable wear fu'1d
tear excepted). Further, Tenant shall, at Tenant's expense, remove all of its merchandise,
inventory, and trade fixtures, and repair any damage caused by the removal. Landlord shall also
have the right to require Tenant, at Tenant's expense, to remove any improvements made to the
Premises by Tenant and to repair any damage caused by the removaL
Holdover Tenancy
Section 12.09. IfTemint remains in possession of the Premises after expiration of the
term of this Lease without renewing or extending this Lease or entering into a new lease with
Landlord, Tenant's continued occupancy of the Premises, at Landlord's option, shaH be
considered a month-to-month tenancy that may be terminated by either party on 30 days' prior
notice to the other. AU terms ofthis Lease shall be fully applicable to the month-to-month
tenancy Lnsofar as consistent with a month-ta-month tenancy except proportionate share oft
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Common Areas Maintenance Costs and Taxes, and any Additional Rent provided for under this
Lease.
Attorneys' Fees
Section 12.10. If any litigation is commenced between the parties to this Lease
concerning the Premises, this Lease, or the rights and duties of either in relation to the Premises
or the Lease, the party prevailing in that litigation shall be entitled, in addition to any other relief
that may be granted in the litigation, to a reasonable sum as and for its attorney's fees in the
litigation, which shall be determined by the court in that litigation or in a separate action brought
for that purpose.
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ARTICLE 13. MISCELLANEOUS
No Personal Liability of Landlord
Section 13.01. Tenant agrees that Landlord shall have no peit"Sonalliability with respect
to any provision of this Lease, and that in the event Landlord fails to perform any obligation
under this Lease or otherwise breaches this Lease, Tenant shall look solely to Landlord's
ovm.ership interest in the real property and improvements constituting the Shopping Center for
satisfaction of any judgment or any other remedy of Tenant, subject to any prior rights of any
holder of a mortgage or deed of trust covering the Shopping Center. No other assets of Landlord
shall be subject to levy, execution, or other judicial process for the satisfaction of Tenant's ciaim.
Landlord's Operating Agreements With Others
Section 13.02. Landlord has entered or may enter into various agreements with the
owners of or occupants of other premises located in the Shopping Center relating to the operation
and use of the Shopping Center (hereafter collectively referred to in this Section as "Operating
Agreements"). These Operating Agreements may include reciprocal easement agreements,
development agreements, and leases. This Lease shall be subject at all times to these Operating
Agreements. Landlord shall not be liable to Tena."1t for the breach of any Operating Agreement
by any owner or occupant of other premises located in the Shopping Center, and shall not be
required for Tenant's benefit to institute efforts to enforce any party's obligations under an
Operating Agreement or to terminate any Operating Agreement because of a party's default.
Other Covenants of Continuous Operation
Section 13.03. This Lease shall not be deemed or interpreted to contain, implicitly or
otherwise, any representation or agreement by Landlord that any other tenant (includin:: any
department store or national or regional chain retail store) shall open for business or occupy or
continue to occupy an portion of the Shopping Center or adjacent property at any time during the
term of this Lease. Tenant agrees and affirms that it is not relying on any such representation or
agreement in entering into this Lease, and waives any claim with respect to any such agreement
or representation.
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Removal of Hazardous Materials
Section 13.04. If any hazardous materials or substances prohibited by law are found to
exist on the Premises and the presence of the materials or substances has not been caused by
Tenant or by Tenant's use of the Premises, Landlord shall, at Landlord's sole cost and expense,
perform necessary removal and cleanup as required by law. If any hazardous materials or
substances prohibited by law are found to exist on the premises and the presence of the materials
or substances has been caused by Tenant or by Tenant's use of the Premises, Tenant shall be
responsible for any required cleanup or removal and for the cost of the foregoing. Tenant shall
not use or store hazardous or toxic substances on the Premises or any other portion of the
Shopping Center.
Landlord-Tenant Relationship
Section 13.05. This Lease establishes a Landlord-Tenant relationship between the
parties. It shall not be construed or deemed to create any other type or relationship between
them, including one of agency, partnership, or joint venture.
Landlord's Right of Entry
Section 13.06. At any time Tenant is open for business, Landlord shall have the right to enter the
Premises to inspect the Premises; show the Premises to a third party; or perform any repairs
Landlord is permitted or required to make under this Lease, whether to the P':;rnises, adjoining
premises, or the building containing the Premises. For any entry made whik Tenant is open ror
business, Landlord shall use its best efforts to minimize interference with the conduct of Ten ants
business. Repairs required or permitted to be made by Landlord may, at Landlord's option, be
scheduled for times when Tenant's business is not open, provided prior written notice is given to
Tenant. In the case of an emergency, Landlord may enter the Premises at any time without prior
notice to Tenant, but shall notify Tenant promptly afterwards of its emergency entry.
Brokerage Commissions
Section 13.07. Neither Tenant nor Landlord has had any dealing or negotiations with any
broker or finder with respect to the Premises. In the event of any claim for paYment or
compensation by 3IlY agent or broker with respect to Tenant's lease ofthe Premises, each party
agrees to defend, indemnify, and hold the other harmless from and agaiIlst a11 costs, fees,
liabilities, and other claims incurred by the indemnified party as a result of the claim caused by
the conduct of the other party.
Interest on Obligations
Section 13.08. The payment of any sum due to Landlord under this Lease, however
designated, shall be due promptly as provided for in this Lease. Any payment that is not paid
promptly shall bear interest from its date until paid at the then-maximum legal rate of interc~st.
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N ouces
Section 13.09. Except as otherwise expressly provided by law, any and all notices or
other communications required or permitted by this Lease .or by law to be served on or given to
either party to this Lease by the other party to this Lease shall be in writing and shall be deemed
duly served and given when personally delivered to the party to whom they are directed or any
managing employee of that party, or in lieu of personal service, when deposited in the United
States mail, first-class postage prepaid, addressed to:
Landlord:
Tenant:
1211 Newell Avenue, Suite 120, Walnut Creek., Califomia 94596,
1293 Parkside Drive, Walnut Creek, CA 94596
Either party may change its address for purposes of this Section by giving written notice of that
change to the other party in the mann;;;r provided in this Section.
Binding on Heirs and Successors
Section 13.10. This Lease shall be binding on and shall inure to the benefit of the heirs,
executors, administrators, successors, and assigns of Landlord and Tenant, but nothing in this
Section shall be construed as a consent by Landlord to any assignment of this Lease or any
interest in. this Lease by Tenant except as provided in Section 8.07 of this Lease.
Time of Essence
S~ction 13.11 Time is expressly declared to be of the essence in this Lease.
Sole and Only Agreement
Section 13.12. This Lease, together with the Exhibits described in Section 13.13 of this
Lease, constitutes the sole and only agreement between Landlord and Tenant respecting the
Premises, the leasing of the Premises to Tenant, or the lease term created under this Lease, and
correctly sets forth the obligations of Landlord and Tenant to each other as of its date. Any
agreements or representations respecting the Premises or their leasing by Landlord to Tenant not
expressly set forth in this instrument are null and void. TIris Lease may be modified or amended
only by an Instrument in writing signed by both Lfu'1dlord and Tenant.
Exhibits
Section 13.13. The following exh.5.bits are incorporated by-:reference in and constitute a
part or this Lease:
EXHIBIT A: Description ,,;[Premises
EXFJ:BIT B: Outline of Landlord's Property
EXHIBIT C: Rules and Regulations
EX..I.T-IIBIT D: First Right
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Invalidity or Un enforceability
Section 13.14. If any provision of this Lease is held by a court of competent jurisdiction
to be either invalid, void, or unenforceable, the remaining provisions of this Lease shall remain in
full force and effect.
Waivers
Section 13.15. No waiver of any term, condition, or covenant of this Lease shall!);:;
presumed or implied. Any such waiver must be expressly made in vl/riting by the party waiving
the term, condition, or covenant. The acceptance by Landlord from Tenant of any amount paid
for any reason under this Lease 1...'1 a sum less than what is actually owing shall not be deemed a
compromise, settlement, accord and satisfaction, or other fma1 disposition of the amount owing
unless Landlord agrees othenvise in writing.
Captions
Section 13.16. The captions and numbers of the p-...t-ticles and Sections ofwis Lease are
for convenience only and are not intended to reflect in any way on the substance or interpretation
of the provisions of this Lease.
Reports by Tenant
Section 13.17. Within fifteen (15) days after the end of each calendar month of the term
hereof, commencing with the fifteenth (15th) day of the month follovving the commencement or
the lease term (as hereinabove provided), and ending with the fifteenth (15th) day of the month
next succeeding the last month of the lease term, Tenant shall furnish to Landlord at the place
then fixed for the payment of rent, a statement in writing, certified by Tenant to be correct,
showing in reasonably accurate detail, the amount of gross receipts made in, upon, or from the
leased premises during the preceding calendar month including those receipts paid to Tenant by
independent contractOrs. Tenant shall submit to the Landlord on or before the sixtieth (60th) day
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rollowing the end or each lease year at the place then fixed for the payment of rent a statement in
writing, certified by Tenant to be correct, showing in reasonably accurate detail, satisfactory in
scope to Landlord, the amount of gross receipts during the preceding lease year, and duly
certified to Tenant by an independent public accountant of recognized standing, which
certification shall be one of which is satisractory to Landlord in scope and substance. The
statements referred to herein shall be such fOrTI1 and style and contain such details and breakdovvn
as Landlord may reasonably determine.
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Executed on
California,
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, 1998, at
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BERKELEY'L.AND COMPANY, INC.
a California cotIJration
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27
EXHIBIT A
Measurement of Premises
Approximately 5,630 square feet measured outside of exterior wall to outside of exterior wail.
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EXHIBIT B
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EXHIBIT C
RULES AND REGULATIONS
OF THE SHOPPING CENTER
A. COMMON i,.REA
1. All Tenants shall use their best efforts to require their respective customers,
invitees and employees to comply with an regulations with respect to the Common Area,
including, but no way of limitation, posted speed limits, directional markings and parking stall
markings.
2. All of the Common Area shall be maintained free from any obstructions not
required, including the prohibition of the sale or display of merchandise outside the exterior
walls of buildings within the Shopping Center, including those within any recessed area, except
in areas specifically designed within the said Shopping Cemer for such purposes.
B. .sIDRE n'ilERIQE~
1. All store interiors, including vestibules, entrances and returns, doors, fixtures,
windows and plate glass shall be maintained in a safe, neat and clean condition.
2. All trash, refuse and water materials shall be regularly removed from the premises
of each tena..."'1t of the Shopping Center, and umil removal shall be stored:
(a) In adequate containers, which such containers shall be located so
as not to be visibie to the general public shopping in the Shopping
Center, and
(b) So as not to constitute any health or fire hazard or nuisance to any
Occupant.
?
No portion of the shopping Center shall be used lor lodging ptL.-poses.
4. Neither sidewalks nor walkways shall be used to display, store or replace any
merchandise, equipment or devices.
5. No adv:1iising medium shall he utilized wh.ich can be heard or experienced
outside of any store interior, including, without limiting the generality of the foregoing, flashing
lights, searchlights, loud speakers, phonographs, radios or television.
6. No use shall be made of the Shopping Center or any ponion or portions thereof
which would:
\a) Violate any law, ordinance or regulation,
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(b)
constitute a nuisance,
(c)
constitute an extra hazardous use, or
(d)
violate, suspend or void any policy or policies of insurance on the Stores.
7. Each tenant shall use its best efforts to require all trucks servicing the facilities of
tenant to load and unload prior to the hours of the Shopping Center opening for business to the
general public.
8. No advenising medium,.,shall be utilized within the Shopping Center which can be
seen or experienced outside the premises of any tena...'1t advertising any auction, fire, bankruptcy
or going out of business sale.
c. .cONDUCT OF PERSONS
The follo\ving rules and regulations for the use of roadways, walkways, automobile
parYing areas and other common facilities provided for the use oflenants and their customers,
invitees and (,,~1ployees are hereby established.
i. No person shall use any roadway or walkway except asa means of egress from or
ingress to any store within the Shopping Center .and automobile parking areas within the
Shopping Center, or adjacent public streets. Such use shall be in an orderly mar..ner, in
accordance with the directional or other signs or guides. Roadways shall not be used for parking
or stopping, except for the irnmediate loading or unloading of passengers. No walkway shall be
used for other than pedestrian travel.
2. No person shall use any automobile parking areas except for the parking of motor
vehicles during the period of time such person orthe occupants of such vehicle are customers or
business invitees of the retail establishments within the Shopping Center. All motor vehicles
shall be 7Jarked in an orderly manner within the painted lines defining the individual parking
places. Dlli-lng peak periods of business activity, limitations may be imposed. as to the length of
time for parking use. Such limitations may be made in specified areas.
3. No persons shall use any utility area, truck court or other area reserved for the use
in c01mection \7/ith the conduct of business. except for the specific purpose of which permission
to use such is given.
4. No employee of any business in the Shopping Center shall use any area for motor
vehi~le parking, except the are or areas specifically designated for employee parking for the
particular period of time such use is to be made.
5. No person, without the written con1;ent of Landiord, shall be in or on any part of
the Common Area to:
20f3
(a) Vend, peddle or solicit orders ror sale or distribution of any merchandise,
device, se:-vice, periodical, book, pamphlet or other matter whatsoever.
(b) Exhibit any sign, placard, banner, notice or other written material.
(c) Distribute any circular, booklet, handbill, placard or other materiaL
(d) Solicit membership in any organization, group or association or
contribution for any purposes.
(e) Parade, rally, PtltroL picket, demonstrate or engage in any conduct that
might tend to interfere with or impede the use of my of the Common Area
by a.'1y Permittee, create a disturbance, attract attention or harass, a.,.'1ll0Y,
disparage or be detrimental to the interest of any of the retail
esttlblishments within the Shopping Center.
(D Use any COITL'11on Area for any purpose when none of the retail
establishments within the Shopping Center is open for business or
employment.
(g) Tr..row. discard or deposit 3.J.1Y paper, glass or extraneous matter of ar.y
kind, except in desi~ated receptacles, or create litter or hazards of any
kind.
(h) Use any sound-making device of &'1y kind or create or produce in any
manner. noise or sound that is annoying, unpleasant, or distasteful to
tenants and their customers, invitees, and employees.
(i) Deface, damage or demolish any sign, light standard or fixture,
landscaping materi 3.1 or other improvement within the Shopping Center, or
.the propeny of customers. business invitees or employees situated within
the Shopping Cemer.
The listing of specific items as being prohibited is not intended to be exclusive, but to
indicate in general the manner in which the right to use the Common Area solely as a means of
,lccess and convenience in shopping at the retail establishments in the Shopping Center is limited
and controlled by Landlord.
Lanr.Uord and any tenam shall have the right to remove or exclude from or to restrai;: (or
take legal action TO do so) any unauthorized person from, or from coming upon, the Shopping
Center or any portion thereof. and prohibit, abate and recover damages arising from (my
lmauthorized act, whether or not such party is not tbe agent of other parties or tenants of th.e
Shopping Center, unless expressly authorized or directed to do so by such party or tena.TJ.t in
v\'I1ting.
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EXHIBIT D
FIRST RlGBT
Parties
This is an Addendum to the Real Property Lease between BERKELEY LAND C01Y1P ANY,
me. ("Lessor") and CHEF'S TOUCH CATERlNG ("Lessee") dated Gc4-- I Iqq
1998, regarding the premises commonly lmown as 11851 Dublin Boulevard, Dubl , California
(the "Premis~s"), which isa p~ of the Dublin Square Shopping Center (the "Property") owned
by Lessor'. Lessee intends to Clperate a delicatessen in the Premises subject to the terms of the
Lease.
,~>., Purpose
Lessee 15 ~ware that Lessor is conSidering various alternatives regarding the future use of the
Property, including razing all existing structures and either building a new shopping center or
other commercial buildings or se11ing the Property or portions thereof.
As Lessor will probably pursue one of these alternatives within the next couple of years, Lessor
is unable to grant to Lessee a long term lease, but Lessor is willing to grant to L:ssee a First
Right to Negotiate regarding a new lease if Lessor's future use of the Property is, in Lessor's
opinion, appropriate for a delicatessen.
Lessee's First Right to Negotiat~
If, in the opinion of Lessor, Lessor's future use of the Property is appropriate for a delicatessen
and if Lessee is still operating a delicatessen on the Property at the time Lessor makes such
deci?ion and if Lessee's lease is not then in default, Lessee shall have the First Right to Negotiate
with Lessor for a lease of a portion of the Property for the continuation of Lessee's delicatessen
business. In that event, a new l~ase for the delicatessen in the rebuilt property shall be negotiated
in good faith by both parties at the then current market rents and other lease terms that Lessor
would offer to other prospective tenants for the same or similar locati~ the Property.
Pwcedure for Negotiations
In the event Lessor determines that the rebuilt Property is appropriate for a deJicatessen, Lessor
shall send to Lessee a vvritten notice requesting that lease negotiations COITL"Tlence. If Lessor and
Lessee are unable to reach an agreement regarding a new lease within thirty (30) days of such
written notice in spite of the good faith efforts of both parties, then lessee's First Right to
Negotiate shall terminate in all respects, and Lessor shall be free to negotiate with other
prospective tenants for the Premises.
D2.ted:
t'l" L- /. IC;& (:-
Dated: ;I{!./J ~ It 'ti<
C.U/ifo..JPrH,/ U&.J't~-+ /'Y'i (-:;-1';1:/;1
1\ e,~-.Lessee: (?iTh~~JCH CATERIl'.JG
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Lessor: BERlCELEY LPJ~ID CO., ThlC.
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FIRST ADDENDUM to SHOPPING CENTER LEASE
between
BERKELEY LAND COM:P ANY, INC. and CHEF'S TOUCH CATERING
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1. Landlord agrees that the term of this Lease will be a minimum of ~ months,
beginning on the Commencement Date stipulated in Section 3.01 of this Lease.
2. Tenant can park vehicles and equipment at the rear of the space as long as such vehicles
and equipment are wholly within the parking space and not parked diagonally or horizontally.
3. Landlord agrees to repair dumpster site.
4. Landlord specifically agrees that Propeliy Taxes are included in the Common Area
Maintenance charge of$300.00 per quarter as further explained in Section 4.02(b) of this Lease.
5. Landlord agrees to reimburse Tenant $4,000.00 for the installation of new restaurant
f n oocl~~us:t~1. Reimbursement is conditioned upon obtaining all applicable
r~J city and county permits, approvals, and certifications.
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SECOND AMENDMENT TO LEASE AGREEMENT
PARTIES
This is the First Amendment to the Lease Agreement dated October 1, 1998 (the
"Lease"), between Berkeley Land Co. Inc. ("Land10rd~~) and Chefs Touch Catering
("Tenant") .
;, PURPOSE
This Second Amendment is made with reference to the following:
A. Landlord and Tenant wish to have a definite termination date ofthe lease, change
section 4.02 (b) of the lease and delete item # 4 of the First Addendum to the
Lease.
AGREEr~ENT
Therefore it is agreed as follows:
1. Section 4.02 (b) oftlle lease shaH be amended to provide that there shall be no
cap of common area maintenance charges of $300.00 per quarter or $1,200 per
year effective January 1, 2006.
2. The lease is hereby amended such that effective January 1,2006 it will no longer
be a month-to-month tenancy but commence January 1, 2006 and terminate
December 31, 2008.
3. Item #4 ofthe First Addendum to Shopping Center Lease is hereby deleted.
Tenant will pay for its proportionate share of property taxes in accordance with
section 4.04 ofllie Lease effective January 1,2006
Dated: !I fr II ,2006
.
Landlord:
Dated: f /)-f---- ,2006
Tenant:
Chefs Touch Catering J
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COMMER.CIAL LEASE AND DEPOSrT
RECEIVED FROM City Ministries .International hereinafter referred to as LESSEE,
The sum of $ 6,000.00 ( Six Thousand *******ir*****"'*****,********-I<-},O",*************,****'1('k***********'k*******li:************** dollars), evidenced .by
Check , as a deposit which will belong to Lessor and will beappHed as follows:
TOTAL
RECEIVED
BALANCE DUE PRIOR TO OCCUPANCY
$ 3.000.00
$ 3,000.00
$
Rent for the period from November 1 ,2005 to November 30, 2005 $ 3,000.00
Security deposit (not applicable toward last month's rent) $ 3.000.QL
OO~ $
$
$
$
TOTAL
$ 6,000.00
$
$ 6.000.00
In the event this Lease is not accepted by the Lessor within--12...-- days, the total deposit received will be refunded.
Lessee offers to Lease from Lessor the premises situated in the City of Dublin , County of Alameda
State of California, described as the premises located at 11825 Dublin Blvd. Dublin, CA
consisting of approximately 15,136 square feet, upon the following terms and conditions:
1. TERM. The term will commence on October 1 , 2005 and end on September 30. 2008.
2. RENT. The total rent will be $197.QOO.QQ. Rent for the 1 s\ month will be free to the Lessee. Rent will be $ 3.000.00 per month for the 2nd through 4U1 month
Rent will be $3.500.00 per month for the 5'" through 8th month, and will be $4,500.00 per month for the 9th through 12u1 month. Beginning year 2, rent will be
g3.000.00 per month. Beginning year 3, rent will be F,OOO.OO per month. Rent wlll be payable on the 1st day of each month. All rents will be pale; to
Lessor or his or her authorized agent, at the following address 321 Hartz Ave. Suite ZOO. Danville, GA 9452& or at such other places as may be designated by
Lessor from time to time. In the event rent is not paid within -L days after due date, Lessee agrees to pay a late charge of $ ~Ius interest at
~% per annum on the delinquent amount. Lessee further agrees to pay $ ..-1!L-for each dishonored bank check. Theiate charge period is not a grace
period, and Lessor is entitled to make written demand for any rent if not paid when due.
3. USE. The premises are to be used for the operation of General Office and Retail and for no other purpose, without prior written consent
of Lessor. Lessee will not commit any waste upon the premises, or any nuisance or act which may disturb the quiet enjoyment of any tenant in the buifding.
4. USES PROHIBiTED. Lessee will not use any portion of the premises for purposes other than those specified. No use will be made or permitted to be made
upon the premises, nor acts done, which wifl increase the existing rate of insurance upon the property, or cause cancellation of insurance policies covering tile
property. Lessee will not conduct or permit any sale by auction on the premises.
5. ASSIGNMENT AND SUSLETnNG. Lessee will not assign this Lease or sublet any portion of the premises without prior written consent of the Lessor,
which will not be unreasonably withheld. Any such assignment or sublettirQ without consent will be void and at the option of the Lessor, will terminate this Lease.
6. ORDINANCES AND STATUTES. Lessee will comply with all statutes, ordinances, and requirements of all municipal, stat.e and federal authorities now in
force, or which may later be in force, regarding the use of the premises. The commencement or pendency of any state or federal court abatement proceeding
affecting the use of the premises will, at the option of the Lessor, be deemed a breach of this Lease.
r. MAINTI2NANCS, REPAIRS, AI.. TERATIONS. Unless otherwise indicated, Lessee acknowledges that the premises are in good order and repair': Lessee
will, at his or her own expense, maintain the premises in a good and safe condition, inciuding plate glass, electrical wiring, plumbing and heating and air'
conditioning installations, and any other system or equipment. The premises will be surrendered, at termination of the Lease, in as good condition as received,
normal wear and tear excepted. Lessee will be responsible for all repairs required, except the following which will be maintained by Lessor: roof, exterior walia, and
structural foundations (including any retrofitting required :JY governmental authorities) and:"~.
Lessee will be responsible for their share of the common area maintenance, taxes and insurance. No improvement or alteration of the premises will be made
without tlcR prior written consent of the Lessor. Prior to the commencement of any substantial repair, improvement, or alteration, Lessee will give Lessor at leaA
two (2) days written notice in order that Lessor may post appropriate notices to avoid any liability for liens.
B. ENTRY AND INSPE:CnON. Lessee will permit Lessor or Lessor's agents to enter the premises at reasonable times and upon reasonable notice for ti1~,
purpose of inspecting the premises, and will permit Lessor, at any time within sixty (50) days prior to the expiration of this Lease, to place upon the premises any
usual "For Lease" signs, and permit persons desiring to Lease the premises to inspect the premises at reasonabie times.
S. INDEMf'Hr-iCATION OF Less em.. Lessor will not be liable for any damage or Injury to Lessee, or any other person, or to any property, ocoming on ti.e
premises. L.essee agrees to hold Lessor harmless from any claims for damages arising out of Lessee's use of the premises, and to indemnify Lessor for any
expense incurred by Lessor in defending any such claims.
10. lPOSSESSHON. If Lessor is unable to deliver possession of the premises at the commencement date set forth above, Lessor will not be liable for any
damage caused by the delay, nor will this Lease be void or avoidable, but Lessee will not be liabie for any rent until possession is delivered. Lessee may termir,;,tc
this Lease if possession is not delivered within ...9..- days of the commencement term in Item 1.
11. i..E:SSEE'S INSlLiRAIMCE. Lessee, at his or her expense, wilt maintain plate glass, public liability, and property damage insurance insuring Lessee and
Lessor with minimum coverage as follows: 1 Million Dollars Generai UabHitv
Lessee will provide Lessor with a Certificate of Insurance showing Lessor as additional insured. The policy will require ten (iO) day's written notice to Less:'r
prior to canceHation or material change of coveraoe.
112. !:..ES50IR'S INSUI".ANCE. Lessor will maintain hazard insurance covering one hundred percent (100%) .actual cash value of the improvements throug!'i()l!'
the Lease tt~rm. Lessor's insurance will not insure Lessee's personal property, Leasehold improvements, or trade fixtures.
13. SIlJ5ROGt1>"fiONo To the maximum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee waive any and ill! ri'!~;;3
of subrogation which might otherNlse exist.
14. UTil;..f;Tli\i:S. Lessee agrees that he or she will be responsible for the payment. of all utiiities, including water, gas, electricity, heat and other services d',:Jlivm0::
to the premises, except: ***....***** ..,,****.**** *****.*..*****.*,.***************.*******..**.........**.**...*****.:"******.*************...****.*....** .
'li5. SIGNS. L.essee wilt not place, maintain, nor permit any sign or awning on any exterior door, wall, or window of the premises withoutlhe express written
consent of Lessor. which will not be unreasonably withheld, and of appropriate governmental authorities.
16. ABANDONMENT OF l"'i<r.IEMISE5. Lessee will riot vacate or abandon the premises at any time during the term of this Lease. If Lessee does ab:':;T'don IC'
vacate the premises, or is dispossessed by process of law, or otherwise, any personal property belonging to Lessee left on the premises will bo deemed It, be
abandoned, at the option of Lessor.
PE{::~ 1 Di:3
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Property Address
1 i 825 Dublin Blve. ~"Jblin, CA
CONDEMNA TeON.lf any part of the premises is condemned for public use, and a part remains which is susceptible of occupation by Lessee, this Lease
as to the part taken, terminate as of the date the condemnor acquires possession. Lessee wUlbe required to pay such proportion of the rent for the remaining
i as the value of the premises remaining bears to the total value of the premises at the date of condemnation; provided, however, that either party may, at his
or tier option, terminate this Lease as of the date the condemnor acquires possession. In the event that the premises are condemned in whole, or the remainder IS
not susceptible for us(;; by the Lessee, this Lease will terminate upon the date which the condemnor acquires possession. All sums which may be payable on
account of any condemnation will belong solely to the Lessor; except that Lessee will be entltied to retain any amount awarded to him or her for his or her trade
fixtures and moving expenses.
18. TRADE FIXTURES. Any and all improvements made to the premises during the term will belong to the Lessor, except trade fixtures of the Lessee. Less8J
may, upon termination, remove all his or her trade fixtures, but will pay for all costs necessary to repair any damage to the premises occasioned by the removal.
19. DESTRUCTION OF PREMISES. In the event of a partial destruction of the premises during the term, from any cause except acts or omission of LesseE,
Lessor will not promptly repair the premises. Such partial destruction will terminate this Lease.
20. HAZARDOUS MATERIALS. Lessee will not use, store, or dispose of any hazardous substances upon the premises, except the use and storage of $l;ch
substances that are customarily "sed in Lessee's business. and are in compliance with all environmental laws. Hazardous substances means any hazardous
waste, substance or toxic matefi~;is reguiatedunder any environmentai laws or regulations applicable to the property. Lessee will be responsible for the cost of
removal of any toxic contamination caused by Lessee's use of the premi!"es.
2i. INSOLVENCY. The appointmentof a receiver, an assignment for the benefits of creditors, or the fiUng of a petition in bankruptcy by or against Lessee, wil!
constitute a breach of this Lease by Lessee.
22.. DEFAULT. In the event of any breach of tllis Lease by Less~e,Lessor may, at his or her option, terminate the Lease and recover from Lessee: (a) the warth
at the time of award of the unpaid rent which had been eamedat the time of termination; (b) the worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination until the time of the award exceeds the amount of such rental loss that the Lessee proves could have been
reasonably avoided; (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that the Lessee proves could be reasonably avoided; and (d) any other .amount necessary to compensate Lessor for all the detriment
proximately caused by the Lessee's failure to perform his or her obligations under the Lease or which in the ordinary course of things would be likely to result
therefrom.
Lessor may, In the alternative, continue this Lease in effect, as long as Lessor does not tennlnate Lessee's right to possession, and Lessor may enforce <,i! of
Lessor's rights and remedies under the Lease, including the right to recover the rent as it becomes due under the Lease. If said breach of Lease continues, Less",
may, at any time thereafter, elecUo terminate the Lease.
These provisions will not limit any other rights or remedies which Lessor may have,
23. SECUR~TY. The security deposit will secure the peliormance of the Lessee's obligations. Lessor may, but will not be obligated to, apply all or portions of \11("
deposit on account of Lessee's obligations. Any balance remaining upon termination will be returned to Lessee. Lessee will not have the right to apply the security
deposit in payment of the last month's rent.
24. DEPOSIT REFUNDS. The balance of all deposits will be refunded within three (3) weeks (or as otherwise required by iaw), from date possession is
delivered to Lessor or"his or her authorized agent. together with a statement Showing any charges made against the deposits by Lessor.
- - ATTORNEY FEES. In any action or proceeding involving a dispute between Lessor and Lessee arising out of this Lease, the prevaiiing party will be enf:iticd
,asonable attorney fees.
.0,'0, WAIVER. No failure of Lessor to enforce any term of this Lease will be deemed to be a waiver.
27. NOTICES. Any notice which either party mayor is required to give, will be given by mailing the notice, postage prepaid, to Lessee at the premises, Qr I:}
l,.essor at the address'ishown'in Item 2. or at such other places as may be designated in writing by the parties from time to time. Notice will be effective five (hi
days after malling, or on personal delivery, or when receipt is acknowledged in writing.
28. HOl-DINe OVER. Any hOlding over after the expiration of this Lease, with the consent of Owner, will be a month-to-month tenancy at a monthly rent cf
$ 10.500.00 , payable in advance and otheliNise subject to the terms of this Lease, as applicable, untii either party will tenninate the tenancy by giving tns
other party thirty (30) days written notice.
29. TIME. Time is of the essence of this Lease.
30. HEIRS, ASSIGNS, SUCCESS'"';. RS. This Lease is binding upon and inures to the benefit of the heirs, assigns, and successors of the parties.
3-1 . TAX. Lessee will pay to Lessor an amount equal to 100 % of the increase in taxes upon the land and building in which the leased premises are situated, in
the event that such taxes are assessed for a tax year extending beyond the term of the Lease, the obligation of Lessee will be prorated.
32. INTENTIONAl!..L Y LEFT BLANK.
33. INTENTIONALLY LEFT BUNK.
34. AMERICANS WiTH C!SAB!UTIES ACT. The parties are alerted to the existence of the Americans with Disabilities Act, which may require .cm;tiy
struciural modifications. The parties are advised to consult with a professional familiar with the requirements of the Act.
35. LESSOR'S UABiLrnl'. In the event of a transfer of Lessor's titie or interest to the property during the term of this Lease, Lessee agrees that the g.antw3 nf
such title or interest will be substituted as the Lessor under tl1is Lease, and the original Lessor will be released of all further liabflity; provided, that all deposit", wi:;
be transferred to the grant,,,,,.
36. ESTOPPEl'.. CERTiFiCATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, acimowledge, and deliver to Lessor a statement in writing: [1] certifying that n',;',
Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in fuil foiT';
and effect), the amount of any security deposit, and the date to which the rent and other charges are paid in advance, if any, and [2J acknowiedging that there CT',)
not, to Lessee's knowledge, any uncured defaults on the part of Lessor, or specifying such defaults if any are claimed, Any such statement may be concluslvr',;~'
relied upon by any prospective buyer or encumbrancer of the premises.
(b) At Lessor's option, Lessee's failure to deliver such statement within such time will be a material breach of this Lease or will be conclusive upon Lessee: [1]
that this Lease is in ful! force and effect, without modific.ation except as may be represented by Lessor; [2] that there are no uncured defaults in Lessor's
performance; and [3] that not more than one month's rent has been paid in adv<lnce.
(e) If Lessor desires tD finance, refinance, or sell the premis€'-s, or any part thereof, Lessee agrees to deliver to any lender or buyer designated by Lessor :"r:,
financial statements of Lessee as may be reasonably required by such lender or buyer. PIli financial stat.ements will be received by the Lessor or the lencer cr
buyer in confidence and wi!! be used only for the purposes set forth.
P~'I~e 2 ~){ :J
Property Address
'11825 Dublin Blvcj" Dublin, CA
.JI#I.. ....
~,
,
31. GUARANTY. For valuable consideration, the undersigned Bob Johnson and Jacqueline Johnson ("Guarantor") unconditionally guarantees to Landlord ai! i
obligations of Tenant under the herein Lease including payment and performance of both monetary and no monetary obligations during the Original T arm and ail
extended terms and any holding-over period hereunder. The failure or revocation of this guaranty as to any guarantor whether by reason of death, bankruptcy Dr"
otherwise or failure to perform under this guaranty shall be in default under this Lease. Landlord may without notice or consent of the guarantor and without
affecting his liabilities hereunder modify, waive, release, renew, extend or otherwise change the terms or obligations under this Lease, release or substitute or
modify the Obligations of any guarantor or any security for performance of this Lease, or assign this guaranty or the Lease. A separate action or actions may be
brought against the guarantor whether or not any action is brought against Tenant or any other guarantor or any security for performance. Guarantor waives to tho
fullest extent permitted by law, the benefit Of any statute of limitations affecting their liability hereunder. Guarantor waives any right to require the Landlord to
proceed against "tenant, or any security or pursue any other remedy in Landlord's power, and waive any defense of Tenant other than payment in full, and waiv,",
any rights arising out of an election of mmedies by Landlord. Guarantor waives rights to notices of any kind including demands for perfonnance, notices of prot8sl
and/or creation of new obligations under this Lease, Guarantor shall not recover any amount owed to them by Tenant until all amounts owed to landlord and if.
default under this Lease have been paid.
---
~on
rVv.J{ff"'-
38. ENTIRE AGREEMENT. The foregoing constitutes the entire agreement between the parties and may be modified only in writing signed by all parties, The
following aI's a part of this Lease:
I
The undersigned! Lessee acknowledges that he or she has tholl'Ol.Ighly read and approved each 01\' the provisions contained in this
Offell", a~l1d agre; to the terms and conditions specified.
Lessee '.?' Date q r" 6> r D ~
'..- '
Receipt for deposit acknowledged by
La"", Uil::U, jJ"~AJt0'- D".
~ Date
(} "' 7,<:,
-1"- dU -:U_
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and agrees to lease the premises on the terms and conditions set forth
~essor Xfi}1w/w.,~
Date
r;be;;.r
, I
lessee acknowledges receipt of a copy of the accepted Lease on (date)
r.LJ r ~C)r.
l(initiaIS)U\J
F') ::.s '. o~ ?,
If .....
'1
COMM5RCIAIL1.5ASe AND DEPOS5T
r -::IVED FROM
Jm of $ 3.460.00
o"...1(s), evidenced by
{
Check
Al! Video Repair hereinafter referred to as LESSEe::,
Three Thousand Four Hundred Sixtv ******************"'************************************************'****"*'********
. as a deposit which will belong to Lessor and will be applied as follows:
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
Rent for the period from 6Qr:iL.:L to April 30, 2006 $ 1.730PL $ :;; 1.730.00
Security deposit (not applicable toward last month's rent) :;; 1.730.00 $ $ 1.730.00
Other $ $ S
TOTAL $ 3,460.00 $ $ 3.460.00
In the event this Lease Is not accepted by the Lessor within_1.!L- days, the total deposit received will be refunded.
Lessee offers to Lease from Lessor the premises situated in the City of Dublin , County of Alameda
State of California. described as the premises located at 11811 Dublin Blvd. Dublin, CA
consisting of approximately 1.730 square feet, upon the following terms and conditions:
1. TERM. The term vvHl commence on Aoril 1, 2006 and end on March 31, 2007.
2. RENT. The total rent will be :;; 20,760.00 at:;; 1.730.00 per month (based on first year's rates)payable on the 1st day of each month. AU renb
will be paid to Lessor or his or her authorized agent, at the following address 321 Hartz Ave. Suite 200. Danville. CA 94526 or at such other places as may be
designated by Lessor from time to time. In the event rent is not paid within -E- days after due date, Lessee agrees to pay a late charge of $ ..lill.-Plus
interest at _JL % per annum on the delinquent amount Lessee further agrees to pay $ ~foreach dishonored bani, check. The late charge period is not a
grace period, ,,'ld Lessor is entitled to make written demand for any rentif not paid when due.
3. USE. The premises are to be used for the operation of Repair and Sales Audio and Video EQuil?ment and for no other purpose,
v.1thout prior written consent of Lessor. Lessee will not commit any waste upon the premises, or any nuisance or act which may disturb the quiet enjoyment 0: any
tenant in the building.
4. USES PROHIBITED. Lessee will not use any portion of the premises for purposes other than those specified. No use wi!! be made or permitted to be made
upon the premises, nor acts done, which will increase the existing rate of insurance upon the properly, or cause cancellation of insurance policies covering thz
property. Lessee will not conduct or permit any sale by auction on the premises.
5. ASSiGNMENT AND SUBLETTING. Lessee will not assign this Lease or sublet any portion of the premises without prior written consent of the Lessor,
which will not be unreasonably withheld. Any such assignment or subletting without consent will be void and at the option of the Lessor, will terminate this Le3S.~,
'RDlNA.NCES A.ND STATUTES. lessee will comply with all statutes, ordinances, and requirements of all municipal, state and federal authorities noVl in
. or which may later be I~.force, regarding the use of the premises. The commencement or pendency of any state or federal court abatement proceeding
,ding the use of the premises will, at the option of the Lessor, be deemed a breach of this Lease.
7. M.P.lNTENANCE, REPAiRS, ALTERATIONS. Unless otherwise indicated, Lessee acknowledges that the premises are In good order and repair. Lessee
vAil, at his or her own expense, maintain the premises in a good and safe condition, including plate glass, electrical wiring, plumbing and heating and air "
conditioning installations, and any other system or equipment. The premises will be surrendered, at termination of the Lease, in as good condition as receive::,
normal wear and tear excepted. Lessee will be responsible for all repairs required, except the following which will be maintained by Lessor: roof, exterior walls. <inc'
structural foundations .
lessee 0 wil!, o will not maintain the property adjacent to the premises, such as sidewalks, driveways. lawns, and shrubbery, which would otherwise be
maintained by Lessor. No improvement or alteration of the premises will be made without the prior written consent of the Lessor. Prior to the commencement of
any substantial repair, improvement, or alteration, Lessee wm give Lessor at least two (2l days written notice in order that lessor may post appropriate notiC'"s~o
avoid any liability for liens.
t, Ei'.J:TRY AND UI'lSPECT!ON. Lessee will permit Lessor or Lessor's agents to enter the premises at reasonable times and upon reasonable notice for tho
purpose of inspecting the premises, and wiB permit Lessor, at any lime within sixty (60) days prior to the expiration of this Lease, to place upon the premises c.ny
usual "For Lease" signs, and permit persons desiring to Lease the premises to inspect the premises at reasonable times.
S. iNDEMNiFICATION OF L.ESSOR. Lessor will not be liable for any damage or injury to Lessee, or any other pers9n, or to any property, occurring on tr.:,,,
premises. Lessee agrees to hold Lessor harmless from any claims for damages arising out of Lessee's use of the premises, and to indemnify lessor for any
expense incurred by Lessor in defending any such claims.
1 O. POSSESSION. If Lessor i2 unable to deliver possession of the premises at the commencement date set forth above, lessor will not be liable for any
damage caused by the delay, norwill this lease be void or avoidable, but Lessee will not be liable for any rent until possession j" delivered. Lessee may tefTn\n,Jt~)
this lease If possession is not delivered within .Jl_ days of the commencement term in item 1.
11. LESSEE'S iNSiJR.lUI!CE. Lessee, at his or her expense, will maintain plate glass, publlc liability, and property damage insurance insuring Lesses ancl
Lessor with minimum coverage as follows: 1 Million Doliars General Liability
Lessee will provide Lessor with a Certificate of Insurance showing lessor as additional insured. The policy will require ten (i0) day's written notice to L:)::;s~'r
prior to cancellation or material change of covel'age.
12. I..ESSOR'S HNSlIJllANCE. Lessor will maintain hazard insurance covering one hundred percent (100%) actual cash value of lhe Improvements thrmjJi'VJ~;t
the Lease term. Lessor's insurance will not insure Lessee'spersonal property, Leasehold improvemenls, or trade fixtures.
i 3. SUaROGATIO~. To the m;;:;'mum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee waive any and ai! rifJhl.,:
of subrogation which might otherWiS&6:([St.
'14. UTIliTIES. Lessee agrees that he or she will be responsib!r for the payment of all utilities, including water, gas, electricity, heat and other services d"li'!:?f31
to th e prem ises I except: ******************"A'***~(*****""'******~:"!d:******'f":' ,~^~ ******************,********'ir************"l>-* 'I:********~'II**********************'I'''id<** .
"i S. SIGNS. Lessee will not place, maintain, nor permit any sign or awning on any exterior door, wall, or window of the premises without the express writts:1
""~sent of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
. ABAIIIDONlMENT OF PREWUSES. Lessee will not vacate or abandon the premises at any lime during tivs term of this Lease. If Lessee does aband'~n c,
'"te the premises. or is dispossessed by process o~ law, or otherv.1se, any personal property belonging to Lessee left on the premises will be deemed tv L .)
abandoned, at the option of Lessor.
P~agG 1 (r)
II .:
, l
Property Address
11811 Dublin Blvd. Qublin, CA
17. CONDEMNATION. If any part of the premises is condemned for public use, and a part remains which is susceptible of occupation by Lessee, this Lease
will, as to the part taken, terminate as of the date the condemnor acquires possession. Lessee will be required to pay such proportion of the rent for the remaining
term as th.e value ~f the pr-emises remaining bears to the total value of the premises at the date of condemnation: provided, however, that eIther party may. at hie,
or ner option, terminate thIS lease as of the date the condemnor acquires possession. In the event that the premises are .condemned in whole, or the remainder is
not susceptible for use by the Lessee, this Lease will terminate upon the date which the condemnor acquires possession. All sums which may be payable on
account of any condemnation will belong solely to the Lessor; except that Lessee wlil be entitled to retain any amount awarded to him or her for his or her trade
fixtures and moving expenses.
18. TRADE FIXTURES. Any and all improvements made to the premises during the term will belong to the Lessor, except trade fixtures of the Lessee. L.essee
may, upon termination, remove all his or her trade fixtures, but will pay for all costs necessary to repair any damage to the premises occasioned by the removal.
19. DESTRUCTION OF PREMISES. tn the event of a partial destruction of the premises during the term, from any cause except acts or omission of Lessee,
Lessor will not promptly repair the premises. Such partiai destruction will temlinate this Lease,
20. HAZARDOUS MATERiALS. Lessee will not use, store, or dispose of any hazardous substances upon the premises, except the use and storage of such
substances that are customarily used in Lessee's business, and are in compliance with all environmental laws. Hazardous substances means any hazardous
waste, substance or toxic materials regulated under any environmental laws or regulations applicable to the property. lessee will be responsible for the cost of
removal of any toxic contamination caused by Lessee's use of thf:! premises.
211. iNSOLVENCY. The appointment of a receiver, an assignment for the benefits of creditors, or the filing of a petition in bankruptcy by or against Lessee. wiil
constitute a breach of this Lease by Lessee. '
22. DEFAULT. In the event of any breach of this Lease by Lessee, Lessor may, at his or her option, terminate the Lease and recover from Lessee: (a) the worth
at the time of award of the unpaid rent which had been earned at the time of termination: (b) the worth at the time or award of the amount by which the unpaid mnt
which would have be:;n earned after termination until the time of the award exceeds the amount of such rental loss that the Lessee proves could have been
reasonably avoided; (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that the Lessee proves could be reasonably avoided; and (d) any other amount necessary to compensate Lessor for'ail the detriment
proximately caused by the Lessee's failure to perform his or her obligations under the Lease or which in the ordinary course of things would be likely to result
therefrom.
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor does not terminate Lessee's right to possession, and Lessor may enforce ail of
Lessor's rights and remedies under the Lease, inclUding the right to recover the rent as it becomes due under the Lease. If saId breach of Lease continues, Lessor
may. at any time thereafter, elect to tenninate the Lease.
These provisions wiil not limit any other rights or remedies which Lessor may have.
23. SECURITY. The security deposit will secure the performance of the Lessee's obligations. Lessor may, but will not be obligated to, apply all or portions cf the
deposit on account of Lessee's. obligations. Any balance remaining upon termination wlU be returned to Lessee. Lessee will not have the right to apply the seculity
deposit in payment of the last month's rent.
24, DEFOSn' REFUNDS. The balance of all deposits will be refunded within three (3) weel{s (or as otherwise required by law), from date possession is
delivered to Lessor or his or her authorized agent, together with a statement showing any charges made against the deposits by Lessor.
25. A TIORNEY FlEES. In any action or proceeding involving a dispute between Lessor and Lessee arising out of this Lease, the prevailing party wit! be
to reasonable attorney fees.
25. WAIVER.. No failure of Lessor to enforce any term of this Lease will be deemed to be a waiver.
27. NOT[CES. Any notice which eilher party mayor is required to give, will be given by mailing the notice, postage prepaid, to Lessee anhe premises, or to
Lessor at the address shown in Item 2, or at such other places as may be designated in writing by the parties from time to time. Notice wili be effective five (~i
days after mailing, or on personal delivery, or when receipt is acknowledged in writing.
28. HOL!l:lINC OVlER. Any holding over after the expiration of this Lease, with the consent of Owner, will be a month-to-month tenancy at a monthly rent or
$ 2,595.00 , payable in advance and otherwise subject to the terms of this Lease, as applicable, until either party will terminate the tenancy by giving the,
other party thirty (30) days written notice.
29. TiME:. Time is of the essence of this Lease.
30. HEmS, ASSiGNS, SUCCESSORS. This Lease is binding upon and inures to the benefit of the heirs, assigns, and successors of the parties.
3"1. TAX INCREASE. In the event there is any increase during any year of the term of this Lease in real estate taxes over and above the
amount of such taxes assessed for the tax year during which the term of this Lease commences, Lessee will pay to Lessor an amount equal to 100 % of the
increase in taxes upon the land and building in which the leased premises are situated. In the event that such taxes are assessed for a tax year extending beyond
the term of the Lease, the obligation of Les,;ee wHlbe prorated.
32. COST OF UVING INCREASE. The rent provided for in Item 2 will be adjusted effective upon the first day of the month immediately following the
expiration of 12 months from date of commencement of the term, and upon the expiration of each 12 months thereafter, in accordance with changes in the U.S.
Consumer Price Index for All Urban Consumers (1982-84 '" 100) ("cPt"). The monthiy rent will be increased to an amount equal to the monthly rent set forill in
Item 2. multiplied by a fraction the numerator of which is the CPI for the second calendar month immediately preceding the adjustment date, and the denornimrtor
of which is the CPI for the second calendar month preceding the commencement of the Lease term; provided, however, that the monthly rent will not be less tiTJf1
the amount setforth in item 2.
33. InteltttionaUy Left mank.
34. AMEfWGANS WITH OlSA!3I!..RTIES ACii. The parties are alerted to the existence of the Americans with Disabilities Act, whictl may require costly
structurai modifications. The parties are advised to consult with a professional familiar with the requirements of the Act.
;'5. LESSOR'S UABH..ITY. In the event of a transfer of Lessor's title or interest to the property during the term of this Lease, Lessee agrees that the gr,c1ii:e6 '"j'
such title or interest will be substituted as the Lessor under this Lease, .and the original Lessor '1\111 be released of all further liability; provided, that all deposi~:s \,vi!
be transferred to the grantee.
36. ESTOr,>r:<EI.. t..':::Il1'.-rGiFH::;:';"TE.
(a) On ten ("10) dayS' prior written notice from Lessor, Lessee will execute. acknowledge, and deiiver to Lessor a statement in writing: [11 certifying thzt trl:"
Lease is unmodified and in fu\! force and effect (or, if modified, stating tl,e nalure of such modification and certifying that this Lease, as 50 modifi~d, is in full fow;
and effect), the amount of any security deposit, and the date to whicl! the rent and other charges are paid in advance, if any, and [2J acknowledging that tllere ."'"
not, to Lessee's knowledge, any uncured defaults on the part of lessor, or specifying such defaults if any are claimed. Any such statement may be conclusiVGiy
relied upon by any prospective buyer or encumbrancer of the premises. _ ,
(b) At Lessor's option, Lessee's failure to deliver such statement within such time will be a material breach of this Lease or will be conclusive upon Lessee: I'll
that this Lease is in fuil torce and effect, without modification except as may be represented by Lessor; [2J that there are no uncured defaults in Lessor's
performance; and [31 that not more than one month's rent has been paid in advance. . . ,
(e) If Lessor desires to finance, refinance, or sel! the premises, or any part thereof, Lessee agrees to deliver to any lender or buyer deSignated by Lessor ,.')e:-l
financial statements of Lessee as may be reasonably required by sl1ch iender or buyer. AHfinandal statements will be received by the Lessor or the lender '.;,
buyer in confidence and wi!! be used only for the purposes set forth.
r3fJe?
Property Address
11811 Dublin Blvd. Duolin. CA
.;;NTIRE AGREEMENT. The foregoing constitutes the entire agreement between the parties and may be modified only in writing signed by all parties. The
following are a part of this Lease:
The undersigned Lessee acknowledgEs that he or site has thorol.ll91h1y rasa aruil approved! eachef the previsions contained in tb""
OilIer, an~" grees to the. 'l:e ~rms and conditiol'ls specified!.
~_-+ Date J.'-!7~ () Co
Lessee
Date
Receipt for deposit acknowledged by __
Date
ACCEPTANCE
or accepts the foregoing Offer ax.d agrees to lease the premises on the terms and conditions set forth abcnrsc.
Lessor -J
Date
-V/'7/66
Lessee acknowledges receipt of a copy of the accepted Lease on (date)
~ [-----.1
(initials)
(1c~~';J9 3 (!: 2
, .
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29~
30.
31.
~=j2 .
33.
34.
3f:i .
36.
37.
~~8 .
3Q
v.
DUBLIN SQUARE LEASE
William L. Barnett
dba: ALL VIDEO REPAIR
11831 Dublin Blvd.
Dublin, CA 84566
INDEX TO LEASE
I,
Page
1
1
1
2
2
:3
1.
<)
<... .
Parties
Premises
Lease Term
Rent.
Security Deposit
Use and Prohibited Uses
Signs
Business Hours
Parking and Common Areas
Name
Alterations
Maintenance and Repairs
Compliance with Government Regulations
Land Use Permit. etc.
Etltry by LESSOR
Damage or Destruction of Premises
'Assignment and Subletting
Insolvency or Bankruptcy
Remedies for Breach
Attorney's Fees
Surrender of Lease
Holding Over
Surrender of Premises on Expiration of Term
Insurance
Indemnification
Utilities
Ta:xes
Exclusivity and Other Tenants
Subordination
Transfer or Reversion
Rules and Regulations
Time is of the Essence
No Joint Venture or Partnership
Notices
Waiver of Breach
Captions
Successors and Assigns
Interpretation
Invalidity of Particular Provision
Governing Law
18
18
18
19
19
19
3.
4.
5.
6.
7 .
8.
9,
10.
ll.
12.
13.
7
8
8
10
10
10
12
13
13
13
13
15
15
15
16
16
16
17
17
17
18
, I
Ii
3
3
4
5
6
6
i\~
I . L
--,
/
, ,
DUBLIN SQUARE LEASE
William L. Barnett
dba: ALL VIDEO REPAIR
11&31 Dublin Blvd.
Dublin. CA 94566
1. Partie,;;;
This lease is made this 29th day of January, 1996. by and
between BERKELEY LAND CO., INC., herein called "LESSOR". and
ylilliam L. Barnett, herein called "LESSEE".
2. rremisee
For and in consideration of the covenants and agreements
hereinafter mentioned to be kept and performed by the parties. the
LESSOR hereby leases to LESSEE, and LESSEE laasse from LESSOR. a
portion of the building area on real property situated in the City
of Dublin. County of Alameda. State of California. and more
particularly described as follows:
Approximately 1600 net square feet located at
the Dublin Square. The street address is
11831 Dublin Blvd.. Dublin, California ("the
leased premises")
3 . Leqse TEa:ro
A. CQmmence~.
February 1, 1996.
This lease rene1^ral term shall commence on
B. Ini..t.isJ. Term. The intial term shall be for a period of
five (5)years. or .January 31, 2001.
C. Ootion. In addition to the initial term. LESSEE shall
have one (1) option to extend the lease for an additional
consecutive term of five (5) vears.
D. Exer~~_;)ption. In the. event LESSEE desires to
exercise the option. LESSEE shall give to LESSOR written notice of
exercise of option at least one hundred eighty (1801 days before
the termination cf the existing lease term. If the option is
~x~~cis~d, th~ l~~s~ sh~ll continue upon all of the same terms and
(:!I~J~d~-t.:lI~ms, (i;i;'tt~~p-C felt" the :t.~8nt, ..:rhic-h ahall be set forth below.
4. Rent
A. Monthly Rent. The initial base monthly rent shall be:
1st Year $ 800.00 per month
2nd Year $ 880.00
J); (t11 3rd Year $ 960.00
4th Year $1. 040.00
5th Year $1. 120.00
The first month's rent. payment for February, 1996, shall be
due upon execution of this Lease.
"
As a special consideration, during the first year (1996) the
LESSEE shall pay no triple net charges.
B. Due Date and Late Charges. All rental payments
shall be payable by LESSEE on or before the first (1st) day of each
month, in advance, and delinquent if not received by the LESSOR by
the tenth (10th) day of each month.
In the event that the minimum monthly rent is not received by
LESSOR within t~en (10) days of its due date, LESSEE agrees to pay
to LESSOR as additional rent a late charge of five percent (5%) of
the rental amount due.
C. Q:Qtion PeY'io~J;.. In the event the LESSEE exercises
the option referred to in 3C. above. to extend the lease renewal
term for an additional five (5) years. the initial rent at the
commencement of each additional five (5) years shall be adjusted to
the then current market value. However. this adjustment shall not
resul t in a rental decrease. The rental adjustment shall be
accomplished by the mutual written agreement of the parties. if
possible.
If the parties and their legal representatives cannot rRach
such an agreement within sixty (60) days prior to the commencement
of the option period. the then current rental market value shall be
determined by the average of three (3) written apprais81s from
licensed and experienced real estate appraisers. One such
appraiser shall be selected and paid by each party. The third
appraiser shall be selected by the first two appraisers and paid
one-half (1/2) by each party.
5. Security Deposit
On the initial Lease, the LESSEE depo6 i ted with LESSOR the sum
of $80.J. 00 . On this Lease Rr::mewal. this depos i.t shall remain in
effect 'Vzithout change and shall be security for the faithful
performance of all the terms of this Lease. The Deposit shall be
retained by LESSOR without interest and may be applied against any
charges. debts or damages due LESSOR from LESSEE.
2
,:2
6. Use and ProhibLted Usea
The leased. premises shall be used solely for repair and sales
of audio and video equipment.
7 LESSEE shall not . without the prior written consent of LESSOR.
use or permit said premises. or any part thereof. to be used for
any purpose or purposes other than the purpose or purposes for
which the said premises are hereby leased. No use shall be made or
permitted to be made of the said premises. nor acts done. which
will increase the existing rate of insurance upon the leased
premises. or any part of the leased premises. unless LESSEE shall
pay the difference between normal insurance rates for similar
businesses and such increased rate. which additional costs shall be
deemed rent herein and paid to LESSOR on demand. Nor shall LESSEE
cause a cancellation of any insurance policy covering the leased
premises or any part of the leased premises, nor shall LESSEE keep.
use or sell. or permit to be kept. used or sold, in or about the
premises. any articles which may be prohibited by the standard form
of fire insurance policies with extended coverage. LESSEE shall.
at its sole cost and expense. comply with any and all requirements
pertaining to said premises. of any insurance organization or
company necessary for the maintenance of reasonable fire and public
liability insurance. covering any part of the leased premises.
LESSEE shall not commit, or suffer to be committed. any waste
upon the premises or any nuisance. or other act or thing which may
damage the leased premises or disturb the quiet enjoyment of owners
or tenants of adjoing parcels of real property.
7. ~,
The LESSEE has already installed an exterior outdoor sign that
matches the specifications of the other Dublin Square tenants.
8. B~
LESSEE shall continuously, during the entire lease term and
any renewal thereof, conduct and carrv on LESSEE"s business in the
leased premises and shall keep the premises open for business and
cause such business to be conducted thereon during each and every
business dav for such number of hours each day as is customary for
bu'sinesses of like character being conducted in the area in which
the leased premises are located; provided. however, that this
provision shall not apply if the leased premises shall be closed
and the business of LESSEE therein shall be temporarily shut down
on account of strikes. lockouts or causes beyond control of LESSEE.
3
9. Earkin~ qpd Common Areap,
A. D.e..f.initjons
The term "Shopping Center" means the entire area within the
outer property limit shown on the plot plan attached hereto and
marked Exhibit "A" and all other pieces or parcels of land at any
time or from time to time designated by LESSOR for use as part of
the Shopping Center. Any additional property designated by LESSOR
for use as part of the Shopping Center shall be included until such
designation shall be revoked by LESSOR. Any portion of the
Shopping Center that may be taken by eminent domain. private
purchase in lieu of eminent domain. or dedicated for public use.
upon such taking. purchase or dedication. shall be excluded. The
term "accommodation areas" means all areas an.d facilities outs ide
the premises that are provided and designated by LESSOR for general
use and convenience of LESSEE and other LESSEES of all or any part
of the Shopping Center and their respective employees. customers.
and invi tees. Accommodation areas include. but are not limited to.
parking r.:.reas. pedestrian sidewalks and landscaped areas. The 8i te
plan of the Shopping Center is attached hereto as Exhibit "B". and
the LESSOR reserves the right from time to time to make changes in
the shape. IS ize. location. number and extent of improvements.
bUildings. accommodation areas. parking layout or areas. and other
improvements and to eliminate or add any improvements or buildings
to any portion of the Shopping Center; provided. however. LESSOR
shall comply Hi th Sub-paragraph B. beloi'!. During the term of this
Lease. LESSOR shall operate. manage. and maintain all parking
areas. road and accommodation areas within the Shopping Center.
The manner in which such areas and facilities shall be maintained
and the expenditure for maintenance. shall be at the sole
discretion of LESSOR. provided that LESSOR is obligated to
reasonably maintain the areas and facilities for the benefit of the
Shopping Center.
LESSOR shall manage the accommodation areas at direct cost to
LESSOR. LESSOR shall use good faith efforts to economize on costs,
consistent with good bus iness practices. The use of such areas
and facilities shall be subject to such reasonable regulations and
changes as LESSOR hereby grants to LESSEE. during the term of this
Lease. the right to use. for the benefit of LESSEE and LESSEE's
employees. agents. customers and invi tees in common with other
tenants of the Shopping Center. their employees. agents. customers
and invitees. all commen areas. including the accommodation areas.
the parking areaE:. and road. subject to any rights. powers and
privileges resrved to LESSOR. No parking fees shall be established
and no meters shall be used.
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B, J2.arkj nf! Area
Within the limits of the Shopping Center. LESSOR shall have
hard surfaced. marked, properly drained. adequately lighted and
landscaped parking area or area. together with the necessary access
thereto. LESSOR reserves the right to change the parking areas and
parking layout from time to time. The parties anticipate that the
area will be devoted principally to parking. wi th reasonable
provisions for landscaping'1 access and other accommodation areas.
C. Lessee's Parking
LESSEE and its officers, agents and employees shall park their
cars only in areas specifically designated for that purpose by
LESSOR from time to time. Within five (5) days after request by
LESSOR. LESSEE shall furnish to LESSOR the automobile license
numbers assigned ot its cars and the cars of all its officers.
agents and employees. LESSEE shall not at any time park or permit
the parking of its trucks vehicles or the trucks or vehicles of
others. adjacent to loading areas so as to interfere in any way
with the use of such areas. nor shall LESSEE at any time park or
permit the parking of its trucks or the trucks of its suppliers or
other. in any portion of the parking lot not designated by LESSOR
for such use by LESSEE. This paragraph requires a diligent effort
in good faith by LESSEE. and is not an absolute duty.
D. Lessee's Share of Parking & Common Area Expense
During this Lease. the LESSEE shall pay its prorata share of
the common maintenance total cost where the leased premises floor
area bears to the total rental floor area in the shopping area.
10. N~
LESSEE covenants that from and after the expiration or earlier
terminati.on of this Lease. it shall not operate under or use any
name which shall include the name of the Shopping Center or the
building. The provisions of this par-agraphshall apply to any
person. firm or corporation which controls or is controlled by
LESSEE~
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11. Alterations
A. Limitation
LESSEE shall not make or suffer to be made any alterations of
the premises or any part thereof. at a cost in excess of $1.000.00.
without the written consent of LESSOR first had and obtained. and
any additions to or alterations of the said premises. except
movable furniture and trade fixtures. shall become a part of.the
realty and belong to the LESSOR at the expiration of this Lease or
earlier vacancy of the leased premises by LESSEE.
B.' li.Q Mechanic' s L i.ens
LESSEE shall keep the leased premises and property in which
the leased premises are 6i tuated. free from any liens for work
performed. materials furnished or obligations incurred by LESSEE.
In the event LESSEE shall fail to do so. LESSOR may (but is in no
way obligated to) pay any claims for any labor. services.
materials. supplies or equipment alleged to have been furnished to
or for LESSEE. payment for which may be secured by mechanic's or
materialmen ^ s liens against the premises or LESSOR' s interest
~:;,herein . Notwithstanding the foregoing. however. LESSEE shall have
the right to contest the validity of any such claim. If LESSEE so
elects to contest any claim. LESSOR shall not pay said claimant if
LESSEE furnishes such security as LESSOR in its discretion may
require to protect LESSOR's interest. LESSEE agrees to execute and
file a notice of completion as provided in Section 1183.1(f) of the
California Gode of Civil Procedure within ten (10) days after the
completion of any contrac.t for any work of improvement. LESSEE
agrees to pay the fees and other charges of completion. In the
event LESSOR elects to pay any such claim. LESSEE shall reimburse
LESSOR wi thin ten (10) da::l's of demand therefor. In the event
LESSEE fails to reimburse LESSOR within ten (10) days. the lease
. shall be deemed in default in the same fasbion as if LESSEE had not
paid rent due in that sum.
12. Majntenan~\..~r..EL
A. LESSEE 'EL...D~.JL-,-':19..iI'..tengj,1c;e and P.epa~..J:..Q..
LESSEE shall a.t its own cost. keep. repo.ir. replace. and
maintain the leased premises and every part thereof. (excluding the
foundation. roof and exterior walls which LESSOR agrees to repair
and maintain). including glazing of store front. heating. air
conal~ioning. electrical. plumbing. ventilating. fire sprinkling
system. if any. and fire extinguishers. and the interior of the
premises. in good and sanitary order. condition and repair. LESSEE
hereby waives all right to make repairs of any kind at the expense
5
of LESSOR,as provided in Section 1942 of the California Civil Code
and all rights provided for by Section 1941 of said Code. In the
event LESSEE shall fail to keep said premises in good sanitary
order. condition and repair, LESSOR may. after giving LESSEE ten
( 10) days' written notice demanding that LESSEE comply with the
requirements of this paragraph, make or cause to be made such
repairs or other work as necessary to restore the premises to good
and sanitary order, condition and repair. Any expense incurred by
LESSOR in the exercise of its option shall be paid by LESSEE
immediately upon demand therefor by LESSOR.
Regarding heating and air conditioning, LESSEE shall maintain
filters. freon, oil. etc. LESSOR is wholly responsible for any
major repair or replacement costs.
B. LESSOR's Repair Expenses
'The foundation. roof and exterior walls of the building in
which the leased premises are located shall be repaired and
maintained by LESSOR at LESSOR's direct expense. LESSOR shall also
repair and maintain the exterior painting, plumbing and electrical
systems in the common areas and building exterior.
13. Compliance with Government Regulations. Land Use Permit. etc.
LESSEE shall. at its sole 60st and expense, comply with all of
the municipal. county, state. federal. and other governmental or
guasi-governmental authorities now in force, or which may hereafer
be in force, pertaining to the leased premises. and shall
faithfully observe in the use and occupancy of the premises all
municipal and county ordinances and regulations, state and federal
statutes and regulations and rules and regulations of any other
governmental or quasi-governmental authority nOH in force or which
may hereinafter be in force. The judgment of any court of
competent Jurisdiction, the decision of any arabitrator or the
admission of LESSEE in an action or proceeding against LESSEE,
whether LESSOR be a party thereto or not. that LESSEE has violated
occupancy of the premises. shall be conclusive of that fact as
between LESSOR and LESSEE. Notwi thstanding anything to the
contrary in the foregoing, LESSEE may contest the validity of any
such ordinance, statute. rule or regulation or the applicability
thereto to LESSEE, as LESSOR shall in LESSOR's contest (including
any appeals for any intermediary court, boards or authorities)
shall prove unsuccessfuL LESSEE shall forthwith comply with said
8rdinance, statute, rule or regulation.
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14. Entrv bv LESSOR
LESSEE shall permit LESSOR and its agents to enter into and
upon said premises at all reasonable times for the purposes of
inspecting the same or for the purpose of making alterations or
addi tions to any portion of the leased premises. including the
erection and maintenance of such scaffolding. canopies. fences and
props as may be required or for the purpose of posting notices of
non-liabili tv for al terationf.i. additions or repairs or for the
purpose of placing upon the" leased premises any usual or ordinary
"For Sale" signs. or for the purpose of exercising its option as
hereinabove provided for ~akingrepairs to the leased premises
which are the responsibility of LESSEE and which LESSEE fails to
make. or for the purpose of exhibiting the premises to any
prospective purchaser or mortgagee of the leased premises or any
portion thereof or for the purpose of exercising any right or
option herein granted LESSOR . without any rebate of rent and
without any liability to the LESSEE for any loss of occupation or
quiet enjoyment of the premises thereby occasioned. LESSEE shall
permit LESSOR. at any time within ninety (90l days prior to the
expiration of the term, to place upon said premises any usual or
ordinary .'To Let" or "To Lease" signs and to permit ~Ghe entry
during said period of LESSOR for the purpose of exhibiting the
premises to any prospective tenant. Such entry shall not interfere
with normal business operations.
15. ~J~:o. of :e.remi..s~A
A. In the event of a partial destruction of the premises
during the lease term resulting from any of the causes insured
against by the California Standard Form fire insurance policy with
extended coverage endorsement. which said partial destruction does
not render the leased premises untenantable. LESSOR shall repair or
otherwise restore said premises as speedily as possible, provided.
however. that in such repair or restoration. LESSOR shall not be
obligated to incur any expense in excess of the insurance proceeds
payable as a result of said partial destruction. "Such partial
destruction shall in no way annul or void thia Lease. except that
LESSEE shall be entitled to a proportionate reduction of rent while
such repairs or restorations are being made. such proportionate
reduction 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 leased premises. If such partial destruction shall cause
the premises to become untenantable. or in the event of a total
destruction of the premises. or if the partial destruction shall
result from a cause not insured against as aforementioned. or lZ
the insurance proceeds payable do not adequately provide funds for
8
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repair or restoration. the LESSOR shall give written notice to the
LESSEE wi thin ninety (90) davs after the occurrence of such
destruction or LESSOR's election either:
(l) To repair the premises. usinganv available insurance
proceeds and supplying additional funds: or.
(2) To terminate this Lease. receiving and retaining all
insurance proceeds free of any claim by LESSEE. as a
result of or arising out of such termination.
B. In the event the~LESSOR is obligated or elects to repair
or restore damage to the leased premises. such repair or
restoration shall encompass only that portion of the leased
premises which was originally constructed or added bv LESSOR and
shall not involve the repair or restoration of anv fixtures or
alterations installed by LESSEE unless those fixtures or
alterations are part of the realty and belong to LESSOR and are
covered by LESSOR's insurance policy.
C. For the purpose of this paragraph. the leased premises
shall be deemed untenantable in the event more than thirty percent
(3Q%) of the total square footage of the improvements erected upon
the leased premises are destroved unless LESSEE and LESSOR agree
otherwise in writing.
D. In repairing or restoring the leased premises. LESSOR
shall not be liable for any delays resulting from strikes. or other
labor disputes. acts of the elements or other causes outside
LESSOR's control.
E. LESSOR agrees that LESSOR will obtain. pay. the premiums
on and maintain inforce a California standard form fire insurance
policy with extended coverage endorsement. insuring the leased
premises for an amount at least equal to the requirements of the
holder of any first mortgage on the leased premises. .
F. In the event of any dispute between LESSOR and LESSEE
relative to the provisions of this paragraph. thev shall each
select an arbitrator. and the two arbitrators thus selected shall
select a third arbitrator. and the three arbitrators so selected
shall hear and determine the controversy and their decision thereon
shall be final and binding upon both LESSOR and LESSEE. who shall
bear the cost of such arbitration equally between them.
9
16.
LESSEE shall not voluntarily assign this Lease or any interest
therein and shall not sublet the said premises or any part thereof,
or any right or privilege appurtenant thereto, or suff~r any other
person (customers. suppliers, guest. agents and servants of LESSEE
excepted) to OCCUPy or use the said premises or any portion
thereof. without the written consent of LESSOR. which consent shall
not be unreasonably withheld. A consent by LESSOR to one
assignment, subletting, occupation or use by any other person shall
not be deemed to be consent to any subsequent assignment,
subletting, occupation o'r use by another person. Any such
ass ignment, subletting or occupation or use without the written
conser;t of LESSOR shall be void. and shall. at the option of
LESSOR, constitute a breach of this Lease. giving rise to all
remedies of LESSOR for breach or default set out in this Lease.
This Lease shall not be. nor shall any interest therein be
assignable as the interest of LESSEE by operation of law without
the written consent of LESSOR.
Any transfer or shares of stock by LESSEE in excess of twenty-
five percent (25%) of the outstanding shares shall be deemed an
assignment, requiring LESSOR's prior ..rritten consent. LESSOR's
consent shall not be unreasonably withheld. LESSEE shall pay
LESSOR's reasonable attorney's fees and costs incured in
considering a request for consent to assignment or subletting.
In the event that LESSEE assigns or sublets this Lease at a
higher rental than the rental set forth herein, one-half (1/2) of
such increased rental shall be paid to LESSOR.
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17. Inso]vencv or BankruP~GY
The appointment of a receiver to take possession of all or
substantially all of the assets of LESSEE. or a general assignment
by the LESSEE for the benefit of creditors, or any action taken or
suffered by or against LESSEE under any insolvency or bankruptcy
remedies of LESSOR for breach of this Lease, giving rise to all
remedies of LESSOR for breach or default set out in this Lease.
For the purpose of this paragraph, the occurrence of any of the
foregoing events to or any prohibited action taken by any person or
enti t;y guara.nteeing the obligations of LESSEE hereunder shall have
the same effect as if such event occurred to or action were taken
by LESSEE.
18. R.e.n.~J~~
In the event of any breach of this Lease, or any covenant,
condition or provision hereof by LESSEE which continues after
LESSOR has ~iven ten (10) days' notice to LESSEE of such breach as
herein provided. the LESSOR, besides other rights or remedies i~
may have. shall have the rights and remedies set forth below. (If
10
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the breach concerns maintenance or repair of the premises. such
maintenance or repair must be undertaken within thirty (30) days
and proceed to conclusion without unreasonable delay.)
A~ LESSOR shall have the immediate right of entry
without prior notice or demand and may remove
all persons and property from premises.
removing silchpropertyand storing the same in
a public warehouse or elsewhere at the cost of
and for the account of LESSEE.
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B. Should LESSOR elect to enter. as here~n
provided. or should LESSOR take possession
pursuant to the legal proceedings or pursuant
to any notice provided for by law. LESSOR may
either:
(1) Terminate the Lease: or
(2) From time to time without terminating
this Lease and without the necessity of
notifying LESSEE of the fact. relet said
premises or any part thereof for such term or
trms (which may be for a trm extending beyond
the term of this Lease) and at such rental or
rentals and upon such other terms and
conditions as LESSOR in its sole discretion
may deem advisable with the rif2:ht to make
alterations and repairs to said premises.
Upon each such releti~inF.' LESSEE shall be
immediately liable to pay the LESSOR in
addition to any indebtedness other than rent
due hereunder:
(a) The costs and expenses (including attorney's
fees and any real estate commission) of such reletting and of such
alt.erations and repairs incurred by LESSOR:
(b) The amount. if any. by which the rent reserved
in this lease for the period of such reletting (up to but not
beyond the term of this Lease) exceeds the amount agreed to be paid
as rent for the leaed premises for such period of such reletting;
(c) LESSEE shall: (1) Pay such amounts to LESSOR
immediately upon demand thereof. or (2) at the option of LESSOR
such liability shall be paid as follows: Rents received by LESSOR
from such reletting shall be applied first. to the payment of any
indebtedness. other tb.an the fixed minimum and percentage rate due
hereunder from LESSEE to LESSOR: second. to the payment of any
costs and expenses (including attorney's fees and any real estate
commissions) of such reletting: third. to payment of fixed minimum
percentage rent due from and unpaid by LESSEE hereunder. The
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residue. if any. shall be held by LESSOR and applied in payment of
future installments of fixed minimum and percentage rent as the
same may become due and payable hereunder. If LESSEE has been
credi ted with any rent to be received by such reletting under
option (1) and such rent shall not be promptly paid to LESSOR by
the new tenant. or if such rentals received from such reletting
under option (2) during any month be less than that to be paid.
LESSEE shall immediately uPon demand therefor pay any such
deficiency to LESSOR.
No such entry or taki~g possession of said premises by LESSOR
shall be construed as an election on its part to terminate this
Lease unless a written notice of such election to terminate be
given to LESSEE or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any such
reletting without termination. LESSOR may at any time thereafter
elect to terminte this Lease for such ]:. cevious breach. Should
LESSOR at anytime trminate this Lease for any breach. in addition
to other remedies LESSOR may have. LESSOR may recover from the
LESSEE all damages LESSOR m&v incur by reason of such breach.
including the cost of recovering the premises. reasonable
attorney's fees, real estate commiss ions and including the worth at
the time of such termination of the excess. if any, of th0 amount
of rent and charges equivalent to rent reserved ~n the lease for
the remainder of the s"tated term over the then reasonable rental
value of the premises for the rremainder of the stated term. all of
which amount shall be immediately due and payable from LESSEE to
LESSOr:..
Any entry by LESSOR pursuant to the ~rovisions of this Lease
shall be allowed bv LESSEE without any interference and LESSOR
shall not be liable for damages for any such entry, or be guilty of
trespass or forcible entry or detainer.
The notice of breach required by this Lease shall be ten (10)
days if the breach consists of the failure to pay money. and thirty
(30) days if the breach consists of anything other thah the failure
to pay money.
19 . .l!,jtQr:...~.Ls Fees
If either party shall commence an aC~lon to enforce any of the
terms or provisions of this Lease. including actions for unlawful
detainer or an action for declar,:=ttory rellef to determine or
construe this Lease. then the losing party in such action shall pay
to the prevailing party such sums as the court may determine as
just and reasonable as and for attorney's fees.
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20. Su:o::ender of' Lease
Voluntary or other surrender of this Lease by LESSEE or mutual
cancellation thereof, shall not work a merger. and shall. at the
option of LESSOR. terminate all of any existing subleases or
subtenancies. or may. at the option of LESSOR. operate as an
ass ignment to it of any and all such subleases or subtenancies.
Nothing in this paragraph shall be construed as a consent by LESSOR
to the creation of such sublease or tenancies.
21 . Iicld.lng Over
Any holding over at the expiration of the term of this Lease.
with the c6nsent of the LESSOR. shall be construed to be a tenancy
from month-to-month at a fixed minimum rental equal to the last
month of the lease term. and shall otherwise be on the terms and
conditions herein specified.
22. Surrender of Premise~ Expiration0f Term
On the last da.Y, or sooner termination of the lease term.
LESSEE shall quit and surrender the premises. broom-clean. in good
conditiion and repair (reasonable ....:rear and tear and damage by acts
of God excepted), tOR:ether with all .13.1 terations . additions and
improvements which may have been in, to or qn the premises, except
movable furniture and/or unattached movable trade fixtures
installed at the expense of LESSEE. Specifically. all built-in
cabinets, counters. desks and shelves shall remain and becoIDe the
property of , LESSOR.
23 . Insuranc~
During the entire term of this Lease. LESSEE at its own
expense. shall:
A. PubLic LUb:i 1 i tv Iu.sur?1J,ce
Provide and keep in force for the benefit of LESSOR and LESSEE
comprehensive general public liab~lity insurance policies. in
insurance companies and in form. of coverage satisfactory to LESSOR.
protecting LESSOR and LESSEE against any and all liability, in an
amount of $1.000.000.00 per occurrence to LESSOR and LESSEE for
both bodily injury. death or property damage incurred by reason of
LESSEE' 6 operation in, on or about th.e prerniees. Said policies
shall provide for at least thirtv (30) davs' written notice to
LESSOR prior to cancellation or material change. The LESSOR shall
be named as additional insured on the policy.
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LESSOR reserves the ri~ht to increase the r~quired amount of
public liability insurance f ,ro time to time dur~ng this lease if
LESSOR reasonably believes a~\jitional coverage is required.
If LESSEE shall fail to carry any such policies. LESSOR. at
its 0:[: ion. may, but shall not be obligated to carry Buch policies:
and the amounts paid by LESSOR. with interest thereon at the legal
rate from the date of payment. shall become due and payable by
LESSEE. as additional rent. with the next succeeding in6tallm~nt of
rent. Payment by LESSOP:' of any such preniums or the carrying by
LESSOR of any such policy shall not be, nor be deemed to be. a
waiver or release of the default of LESSEE with respect thereto. or
the right of LESSOR to institute summary proceedings and/or take
s1"'.ch other action as may be permissible hereund.er as in the case of
ddfault in payment of net rent.
B. Certjficate of InsurancA
At the commencement of the term of this Leas8. LESSEE
shall deliver to LESSOR certificates of insurance manifesting
required coverage. and at least tl:-drty (30) days prior to the
expiration of each such policy or policies, LESSEE shall pay the
premiums for renewal insurance and within such period shall deliver
to the LESSOR the original policy or duplicate original with an
endorsement tnereon marked "paid" and/or duplicate receipt or otheor
information satisfactory to the other. evidencing payment thereof.
If the original policy of any such insurance shall be required to
be delivered to the beneficiary of any mortgage or deed of trust to
which this Lease is subjct and subordinate, the duplicate original
or certificate of such policy shall be delivered to LESSOR upon
request. LESSEE shall have the right to maintain required
insurance under blanket policies.
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1Li..r:.f'J..Il,E;~C e
LESSOR agrees to purchase and keep in full force. fire
and extended coverage insurance covering the leased premises as
determined by LESSOR"s insurance company"s appraisers. which shall
be for full replacement value. LESSEE shall reimburse
LESSOR.within fifteen (15) days of receiving a billing therefor.
for LESSEE"s prorata share.
LESSEE shall maintain replacement value insurance en
LESSEE"s property located on the Property,
D . t10 rJi..e 'rJ~'o'en,.R ,s t. i ()r~
~'1i th regard to any Harker r s
by LES3EE. the LESSEE agrees tha.t
e:ubrogation against the LESSOR (or
agents). arid such insurance shall
subrogcttio1:15
Compnsatj_on insurance carrlea
it ;::hall waive the righi~ of
its employees~ assignees or
pro'r.ride for SUetl wai ~.rer ()f
14
E. W~r of Subrogation
Wi th regard to any insurance reguired to be carried by
LESSOR and LESSEE pursuant to this Lease. both LESSEE and LESSOR
agree that neither shall have the right of subrogation against the
other (or its employees. assignees or agents). and such insurance
shall provide for such waiver of subrogation.
24. Indemnification
"
LESSEE shall indemnify and hold LESSOR harmless and defend
LESSOR from any and all claims of liability for any injury or
damage to any persOn or property whatsoever incurring in. on or
about the leased premises or any part thereof. other than claims of
liability arising from the negligence or wrongdoing of LESSOR or
LESSOR's agent.
25. UtiU tieEl
LESSEE shall pay directly for water, gas. electricity and
telePhone services and all other utilities supplied to the leased
premises. LESSEE shall also pay for the removal of all garbage
from-the leased premises.
2 6 ."T..ax.as..
A. Personal property Tax~s
LESSEE shall pay before delinquency any and all taxes .
assessments. license fees. and public charges levied. assessed or
imposed and which become payable during the lease term upon
LESSEE's fixtures. furniture. appliances, personal property
installed or located on the premises.
B. Real Propert~ Taxes--Lessee's Pror~ta Shar~
LESSOR shall pay before delinquency any and all
municipal. county or state real property taxes assessed against the
leased premises and the parcel of land upon which the leased.
premises are situated. LESSOR shall also pay any local or municipal
taxes assessed on rentals or rental income.
LESSEE shall. during the term of this Lease, pay its
pro rata share of all such real property taxes for the Shopping
Center where the leased premises are located in the proportion to
the rentable floor area that LESSEE"s premises bears to the total
rentable floor area of all building~ from time to time completed in
the Shopping Center. ~:rhetheror not leased. LESSEE shall pay to
15
LESSOR within fifteen (15) days after LESSOR submits a bill
therefor. LESSEE's share of such real property taxes. LESSOR shall
submit to LESSEE a true copy of each current tax bill. and a
statement showing the total square feet of all rentable buildings
in the parcel represented by that tax bill.
27. E~clusivitv anG Other Tenants
LESSOR agrees that during the time this Lease is in force.
LESSOR will not lease ot);1.er premises in the Franciscan Center
solely as a like business.
28. Subordination
LESSEE agrees that this Lease shall be subordinate to any
mortgages or trust deeds that may hereafter be placed upon the
premises. to any and all advances made or to be made under them. to
the interest and all obligati.ons secured by them and to all
renewals. replacements and extensions of them. Provided. however.
the mortgagee or beneficiary named in any such mortgage or trust
deed shall recognize the Lease of LESSEE in the event of
foreclosure. if LESSEE is not in default under the terms of this
Lease. If any mortgagee or beneficiary elects to have this Lease
superior to the lien of any such mortgage or deed of trust. whether
this Lease is dated or recorded before or after the mortgage or
trust deed.
LESSEE, shall. at any time and from time to time. upon not less
than ten Cl0) days' prior request by LESSOR. execute. acknowledge
and deliver to LESSOR a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been
modifications. that the same lS in full force and effect as
modified and stating the modifications) and the dates to which the
fixed rent and other charges have been paid in advance. it being
intended any E:uch statement; delivered pure.~uant to this subparagri3.ph
may be relied upon by any prospective purchaser or encumbrancer
(including ssignees of either) of the Shopping Center.
29 . T crj,n.r~.Q~..JlZ;._r:.s..i.Qn.
In the event of a sale or conveyance or other transfer by
LESSOR of LESSOR's interest in the leased premises, the came shall
operate to release L~SSOR from any future liability, herein
contained in favor of LESSEE. and in such event LESSEE agrees to
look solely to the responsibility of the successor in interest of
the LESSOR in and to this Lease. If any security be giv-en bv
LESSEE to secure the faithful per~ormance of all or any of the
covenants of this.Lease on the part of LESSEE. LESSOR may transfer
16
.1-.1-'
and/or deliver the security as such. to the purchaser of the
reversion. in the event that the reversion be Bold. and thereupon
LESSOR shall be dischar~ed from any further liability with
reference thereto.
30. Ru]~s and Regulationa
LESSOR reserves the right to issue such reasonable rules and
regulations. relating to the use and occupancy of the leased
premises and the access, p~rking and common areas of the Shopping
Center as LESSOR may deem appropriate for the best interest of the
LESSEE and other tenants in the building. Such rules and
regulations may include. with limitation: .
A. The right to close. if necessary. all or any portion of
the common area. sidewalks. roads. access roads. malls and other
facili ties to such extent as may. in the opinion of LESSOR, be
legally sufficient to prevent dedication thereof or the accrual of
any rights of any person or of the public therein and no such
closing shall be deemed an eviction of LESSEE nor shall any rebate
or diminution of rent result from such closing:
B. The right to control time for loading and unloading of
merchandise and the placement and times of disposition of garbage,
trash and debris:
C. The right to designate employee parking areas. LESSEE
shall abide by such rules and cooperate in the observance thereof.
Such rules and regulations shall be binding upon LESSEE upon
delivery of a copy thereof to the LESSEE. The rules and
regulations may be amended by the LESSOR from time to time with or
without advance notice. and all amendments shall be effective upon
delivery of a copy of them to the LESSEE. All rules promulgated
pursuant to this paragraph shall be approved by LESSEE before
"taking effect.
31. TimA js of the ~
Time is of the essence of this agreement and each and every
part thereof.
32. N~L2int Ventllr~ or Partner~
Nothing herein shall be construed as. nor ohall this Lease
create a joint venture or partnership by and between LESSOR and
LESSEE.
17
33 . 1'1 o.:ti,~
All notices, statements. demands, requests. consents.
approvals. authorizations. offers. agreement.. appointment or
designations under this Lease by either party to the other shall be
in writing and shall be deemed duly given and served upon the other
party if delivered personally to the recipient. upon such delivery.
and if sent by mail. upon deposit in the mails. postage prepaid and
addressed as follows:
To the LESSOR:
B~rkeley Land Company, Inc.
1211 Newell Ave.. Suite 120
Walnut Creek. CA 94596
fro the LESSEE:
William L. Barnett
11831 Dublin Blvd.
Dublin. CA 94568
34. Waiver. of Br~aGb.
No waiver of any condition or covenant of this Lease or of the
breach of any condition or. covenant shall be taken to constitute a
waiver of any subsequent breach of such condit on or covenant. or
to justify or authorize the non-observance on any other occasion of
the same or any other condition or covenant hereof. nor shall the
acceptance of rent by the LESSOR at any time hereof be construed as
a waiver of such default or of the LESSOR's right to terminate this
Lease on account of such default, nor shall any waiver or
indulgence granted by the LESSOR be taken as an estoppel against
the I1ESSOR.,
35. Captionl':L
The paragraph and subparagraph captions of this Lease are for
the convenience only and are not a part of this Lease and do no.t in
any way limit or amplify the terms of provisions of this Lease.
.36 . ~~~$ 8nd Ass is:n..a
This instrument shall be binding upon and shall inure to the
benefit of the respective parties. their successors. assigns. legal
representatives. prOVided that this clause shall not permit any
assignment contrary to the provisions prohibiting assignment
hereln.
18
, -
!6
'-'
37. Interpretati on
The language in all parts of this lease shall in all cases be
construed as a whole and simply according to its fair meaning and
not strictly for nor against the LESSOR or the LESSEE. and the
construction of this lease and any of its various provisions shall
be unaffected by any claim. whether or not justified. that it has
been prepared wholly or in substantial part by or on behalf of the
LESSOR.
.I,
38. Invali,di tv of Part icular ProYi.e;...iQn.
If any term or provision of this Lease or the applicability
thereof to any person or circumstance shall. to any extent. be
invalid or unenforceable. then the remainder of this Lease. or the
application of such term or provision to persons other than those
as to ';.thich it is held inV'alid or unenforceable shall not be
affected thereby and each term and provision of this Lease shall be
'Jalid and be enforced to the full extent permitted by law.
39. Governi~~ Law
This~Lease shall be interpreted and construed according to.
and the conduct of the parties hereunder shall be governed by, the
laws of the State of California.
LESSOR:
LE.S~
BERKELEY LAND COMPANY. INC.
Frank Sabatte
William L. Barnett
dba: ,f,\.LL VIDEO RE,PA}R ~Cz9--'-'
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By: {/V ~-./'-.... /- (~,
William L. Barnett
By:
Dated:
Dated:
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~
Its:
~pident
Its:
Tenant
19
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June 28, 2005
All Video Repair
11831 Dublin Blvd.
Dublin, Ca. 94568
IVlike IV1ikulich
Berkeley Land
321 Hartz ave,
Danville, Ca. 94526
p; 1i'/fikp
....1..<. 1\ 1 "",
The enclosed check for $750 vvill pay for the month of July, for the
back vvarehouse we are renting frorn your company. I have
enclosed receipts for the improvelnents we have done to the
bunding. I am proposing this vviH offset the rent '\J\fe have not paid
for the last three months, for the warehouse, Going forward, this
anlount win cover the entire rent for the warehouse, on a month to
month basis.
Please let me know if this n'1eets with your approvaL ....y ou can
reach me ouMy cell phone, 925-872-4200,
Thanlc you,
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Be.rh_~;],e~y
:':ompan.y
Ann: lvfi~'
1 ::.1 1 Nev'/dl A-.";;
\/alnut Creek, eA 9)596
pJ] 'ideo Repair
II f"~] Dublin Blvd
i CA_ 9456g
]'viarch 2g, 2001
I>ear M:1I.:::.;:,
We be vacating the building April30J\ 2001. This letter serv;;;s as out th1"1:y (30) day
nOL
Our new location will be 7429 k"llador Valley Blvd. Our opening date will be l'Lpril16th.
'VI!e have enjoyed the Ul]~ aftIle building and thank you for your cooperation.
I (;0 have a protlosaL I would 111::e to keen rentmr- tne build-in;;: until yOU find another
_ .0" .:. ~._ ...."
tenant or t1:,,; buildin::T is tom dovvn. I would be wlllinrr to 'Oava reduced rent of$5GO.OO
',.' "-' _..1
per monthJn a momil...to...month basi::. \Ve would be usin the building as an extn,
location until we- were asked to leave. Given written notic . we could Vf:' cate the property
within]i1een (15) days. Please call me Monday, April :.nci and lee me know. I
c2nbe lcached on my cell phone at (925) 872-4200.
r decide not to accept my offer, we v..rill vacate; the property by April 30th, '::WOO.
Sincerely,
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E: ill Barilett
Owner
BB/de
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COMMERCIAL LEASE AND DEPOSrr
.-- . "EIVED FROM A BETTER RESTORATION. INC.
:um of$ NJA ( N/A
~ Jllg to Lessor and will be applied as follows:
hereinafter referred to as LESSEE,
.dollars), evidenced by N/A . as a deposit which will
TOTAL
RECEIVED
BALANCE DUE PRIOR TO OCCUPANCY
Rent for the period from to
Security deposit (not applicable toward last month's rent)
Other
$
$
$
$
$
$
$
$
$
TOTAL
$
$
$
In the event this Lease is not accepted by the Lessor within--1!l.- days, the totai deposit received will be refunded.
Lessee offers to Lease from Lessor the premises situated in the City of Dublin . County of Alameda
State of California, described as the premises located at 11845 Dublin Blvd. Dublin. CA
consisting of approximately 600 square feet, upon the following terms and conditions:
1. TERM. The term will commence on November 1, 2005 and end on October 31. 2008.
2. RENT. The total rent will be ~4.000.00. Rent will be $ 600.00 per month from November 1, 20P5 to October 31, 2006. Rent wUl be $650.00 per month
from November 1,2006 to October 31, 2007, and will be $750.00 per month from November 1, 2007 to October 31, 2008. Rent will be payable cnthe
1 st day of each month. All rents will be paid to Lessor or his or her authorized agent, at the following address 321 Hartz Ave. Suite 200. Danville, C~
94526 or at such other places as may be designated by Lessor from time to time. In the event rent is not paid within -EL- days after due date, Lessee agrees to
pay a late charge of $ ~lus interest at __.fl.5o per annum on the delinquent amount. Lessee further agrees to payS --1.2..--for each dishonored bank
check. The late charge period is nota grace period, and Lessor is entitled to make written demand for any rent if not paid when due.
3. USE. The premises are to be used for the operation of Office Use and for no other purpose, without prior written consent of Lessor.
Lessee will not commit any waste upon the premises, or any nuisance or act which may disturb the quiet enjoyment of any tenant in the building.
4. USES PRO!1lIBHTEVl. Lessee will not use any portion of the premises for purposes other than those specified. No use will be made or permitted to be made
upon the premises, nor acts done, which win increase the existing rate of insurance upon the property, or cause cancellation of insurance policies covering the
property. Lessee will not conduct or permit any sale by auction on the premises.
5. ASSIGNMENT AND SUBLETTING. Lessee will not assign this Lease or sublet any portion Of the premises without prior .'Jritten consent of the Lessor,
which wfll not be unreasonably withheld. Any such assignment or subletting without consent will be void and at the option of the Lessor, will terminate this Leas(^;.
r "~!OII\!lANCES AND STATUTES. Lessee will comply with all statutes, ordinances, and requirements of all municipal, state and federal authorities noVl in
or which may later be In force, regarding the use of the premises. The commencement or pendency of any state or federal court abatement proceeding
<0 .ring lhe use of the premises will, atthe option of the Lessor, be deemed a breach of this Lease.
7. r\liAINTtENANCE, REPAiRS, AI.. TERATIONS. Unless otherwii3e indicated, Lessee acknowledges that the premises are in good order and fE~pair. Lessee
will, at his or her own expense, maintain the premises in a good and safe condition, including plate glass, eiectricalwiring, plumbing and heating and air
conditioning installations, and any other system or equipment. The premises will be surrendered, at termination of the Lease, in as good condition as received,
normal wear and tear excepted. Lessee will be responsible for all repairs required, except the following which will be maintained by Lessor: exterior walls, and
structural foundations and: N/A . Lessee will be responsible for theirshare of the taxes. No
improvement or alteration of the premises will be made without the prior wlitten consent of the Lessor. Prior to the commencement of any substantial repair,
improvement, or alteration, Lessee will give Lessor at least two (2) days written notice in order that Lessor may post appropriate notices to avoid any liability far
liens.
8. ENTRY IU-lD UI!ISPECTHON. Lessee wUl peonit Lessor or Lessor's agents to enter the premises at reasonable times and upon reasonable notice for the
purpose of Inspecting the premises, and will permit Lessor, at any time within sbay (50) days prior to the expiration of this Lease, to place upon the premiso3 Einy
usual "For Lease" signs, and pelmit persons desiring to Lease the premises to inspect the premises at reasonable times.
9. INDEMNHFECATICHl!! OFL.IESSOR. Lessor wiflnot be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the
premises. Lessee agrees to hold Lessor.harmless from any claims for damages arising out of Lessee's use of the prerriises, and to indemnify Lessor for any
expense incurred by Lessor In defending any such claims. .
'10. POSSESSION. If Lessor is unable to deilver possession of the premises at the commencement date set forth above, Lessor will not be liable for any
damag<:> caused by the delay, nor will this Lease be void or avoidable, but Lessee will not be liable for any rent until possession is delivered. Lessee may terminate
this L<:>ase if possession is not delivered within ...!!.- days of the commencement teon in Item 1.
11. LESSEiE'S KNSUP...ANCE. Lessee, at his or her expense, will maintain plate glass, pUblic liability, and property damage insurance insuring Lessee and
Lessor ",.nth minimum coverage as follows:. 1 Million Dollars Genera! Liabilitv .
Lessee will provide Lessor With a Certificate of Insurance showing Lessor as additional insured. The policy wilt require ten (10) day's written notice to Les."io!'
prior to canceHationor material change of coverage.
12. LESSOR'S iNSUfUil.fIIClE. Lessor will maintain hazard insurance covering one hundred percent (100%) actual cash value of the Improvements throughout
the Lease term. Lessor's insurance will not insure Lessee's personal property, Leasehold improvements, or lrade fixtures.
13. S!LutiROGATIONl. To the maximum extent permitted by Insurance polir,:ies which may be owned by the parties, Lessor and Lessee waive any and all rights
of subrogation which might othslWise exist.
'il4. UTiii..&THES. Lessee agrees that he or she will be responsible fOf the payment of aU utilities, inducting water, gas, electricity, heat and other services deliv"w,d
to the prernises, except: ******i.-***,*""*****+'****1r***+:******'i;****,"*******1rlr****'k*id-Jd:*'/ddr****p:*******'+it<'[(_*****?d'dc***,*****"iJ',((w'W'il*******'i:*******-;.:**t'*****~'r**-t..!tw .
15. SiGNS, Lessee will not place, maintain, nor permit any sign or awning on any exterior door, wal!, or window of the premises without the express written
consentof Lessor, which will not be unreasonably withheld, and of appropriate govermnental authorities.
15. A.BANDOt~MiEI\!T OF PRE!'!lnSES. Lessee \l>iill not vacate or abandon the premises ai any time during th.e term of this Lease. If Lessee does abandon \J;
. '" the premises, or is dispossessed by process of law, or othelWise, any personal property belonging to Lessee left on the premises will be deemed to bE,
;oned, at the option of Lessor.
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Property Address
11845 Dublin Blvd. Dublin, CA
17. CONDEMNATION!. If any part of the premises is condemned for public use, and a part remains which Is susceptible of occupation by Lessee, this Lear;e
will, as to the part taken, terminate as of the date the condemnor acquires possession. Lflssee will be rt?.quired to pay such proportion of the rent for the rCmalnin8
term as the vaiue of the premises remaining bears to the total value of the premises at the date of condemnation; provided, however, that either party may, at his"
or her option, termlrlate this Lease as of the date the condemnor acquires possession. In L'1e event that the premises are condemned in whole, or the remainder hi
not susc;eptlble for use by the Lessee, this Lease will terminate upon the date which the condemnor acquires possession. All sums which may be payable on
account of any condemnation will belong solely to the Lessor; exoept that Lessee will be entitled to retain any amount awarded to him or her for his or her tracl0
fixtures and moving expenses.
18, TPJU1E FIXTURE::S. Any and all improvements made to the premises during the term will betong to the Lessor, exoept trade fixtures or the Lessee. Le'SGG0:
may, upon termination, remove an his or her trade fixtures, but will pay for all costs necessary to repatr any damage to the premises occasioned by the removal.
19. DESTRUCTION OF PREWUSES. In the event of a partial destruction ofthe premises during the term,from any cause except acts or omission of l.essee,
Lessor will not promptly repair the premises. Such partial destruction ,...~il terminate this Lease.
20. iilAZAIiU)OiLIS MA TlEmALS. Lessee wUl not use, store, or dispose of any hazardous substances upon the premises,except the use and storage or Guch
substances that are customarily used in Lessee's business, anJ are in compliance with all environmental laws. Hazardous substances means any hazardous
waste, substance or toxic materiais regulated under any environmental laws or regulations applicable to the property. Lessee will be responsible for the cost of
removal of any toxic contamination caused by Lessee's use of the premises.
211. nNSOll.VcNCY. The appointment of a receiver, an assignment for the benefits of creditors, or the filing of a petition In bankruptcy by or against Lessee, wlii
conslitute a breach of this lease by Lessee. '.'
22. Sl>5FAULT. In the event.of any breach of this Lease by Lessee, lessor may, at his or her option, tenninate the Lease and recover from Lessee: (a) the worth
at the time of award of the unpaid rent which had been earned at the time of termination; (b) the worth at the time of award of the amount by which the unp"id rent
\/mich would have been eamed after termination until the time of the award exceeds the amount of such rental loss that the Lessee proves could have been
reasonably avoided; (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that the lessee proves could be reasonably avoided; and (d) any other amount necessary to compensate Lessor for all the detriment
proximately caused by the Lessee's failure to perform his or her obligations under the Lease or which in the ordinary course of things would be likely to fC"uii
therefrom.
L('~sor may, in the alternative, continue this Lease in effect, as long as Lessor does not terminate Lessee's right to possession, and Lessor may enforce ~il nf
Lessor's rights and remedies under the Lease, inc!udlng the right to recover the rent as it becomes due under the Lease, If said breach of Lease continues, LEsor
may, at ao)' time thereafter, elect to terminate the Lease.
These provisions will not limit any other rights or remedies which Lessor may have.
23. SECURI1if. The security deposit will secure the perfOlmance of the Lessee's obligations. Lessor may. but will not be obligated to, appiy ail or poftioml of tne
deposit on account of Lessee's obligations. Any baiance remaining upon termination wiil be retumed to Lessee. Lessee will not have the right to apply the se:;wity
deposit in payment of the last month's rent
24,. 05?051T REFUNDS. The balance of all deposits will be refunded within three (3) weeks (or as otherwise required by law), from date possesSion i,;
delivered to Lessor or his or her authorized agent, together with a statement showing any charges made against the deposits by Lessor.
25. ATTORNEY FEES. In any action or proceeding inVOlving a dispute between Lessor aild Lessee arising out of this Lease, the prevailing party wil! be er{ic:.,
to reasonable attorney fees.
26. WA!VER. No faiiure of Lessor to enforce any term of this Lease will be deemed to be a waiver.
27. NO'neES. Any notice which either party mayor is required to give, will be given by mailing the notice, postage prepaid, to Lessee at the premises, cr to
Lessor at the address shown In Item 2, or at such other places as may be designated In v.'liting by the parties from time to time. Notice will be effective five (5)
days after mailing, or on personal delivery, or wilen reu,ipt is acknowledged in writing.
23. iiiOLlDftNC OVER, Any holding over afterthe eY4Jiration of this Lease, wIth the consent of Owner, wii! be a month-ie-month tenancy at a monthly rer
$ 900.00 , payable in advance and otherwise subject to the terms of this Lease, as applicable, llntil either party will terminate the tenancy by giving Hie
other party thirty (30) da;ys written notice.
2~. T~ME. Time is of the essence of this Lease.
3CLHEIRS, t\'SS!GifliS,. SII.ICCiESS1JRS. This Lease is binding upon and inures to the benefit of the heirs, assigns, and sucoessors of the parties.
31. TAX. Lessee wi!! pay to Lessor an amount equal to jQ9 o/!!. of the taxes upon the land and building in which the leased premises are situated. In the eVf [hil"
such taxes are assessed for a tax year extending beyond the term of the Lease, the ob!igation of Lessee will be prorated.
32. ni\llTt2iN!Ttm~1A\l.L 'f LEFT Ba..Ai\!~'"
33. AMERiCi~JX!~ W~TH i!ll~$A!:m.JnE$i ACT. The parties ~:te alerled to lho existence of the Americans v.~th Disab1lities Act, which may reQuire costiy
structural modificulions. The parties are advised to consult with a professional familiar with the requirements of the Act.
34. ~ESSOR'$ !..~AlH;!LWnr. In the event of a transfer of Lessor's t1tle or interest to the property during the term of this Lease, Lessee agrees that the grant(f , cii
such title or interest win be substituted as the Lessor und0r this Lease, and the originai Lessor wi!! be released of all further liability; provided, that ail depusits' el'
be transferred to the grantee.
35. ESTOfi"F'"g. CEir~nfi~!CAii"E.
(a) On ten, "J) days' prior written notice from Lessor, Lessee wm execute, acknowledge, and deiiver to Lessor a statement in writing: [1] certifying that Ih:2
Lea:';eis unm'"iifiedand'in full force and effect [ur, if' modified, stating the nBture of Guch modification and certifying that this Lease, as so modified, is In full to;';O
an" effect), tile amount of any security deposit, and the date to which the rent and other charges are paid in advance, if any, and [2J acknowledging that there ;'\;'8
not. to Lesses's knowledge, any uncured defaults on the parl of Lessor, Of specifying such defaults if any are cialmed. Any such statement may be collciu;c!\\)!y
relied upon by any prospective buyer 0: encumb",\llcer of lhe premises.
(ll) P.t Lessor's option, Lessee's failum to deliver such statement within such time will be a material breach of this Lease or will be conclusive upon Lessee: Ii'
thal this Lease is in full force and sifeol, without rnodiibstion except as may be represented by Lessor; [2] that there are no uncured defaults in Lessor's
performance; ,3nd [3] ~_hot not more than onE-; rnonth's n%jt has been paid in advance.
(0) If L8S~;or desires to fin21'lce, ref!nrmcc:, or se!! the premises, or any part thereof, Lesse:0 agrees to dellve:' to any lende!' or buyer designated by Le:;!;:'cr (u
flnan~:;ial staten1ents of Lessee as rna\! be ref~son:s"blv requinad by i::.~uch lender or buyer. AH financial staternents wlH be received by U"16 Le~,-8or or the lender c;'
buyer in confidence iJnd \iVm be us(}Ci ;n!y for th~ pU~iJ()S8S set forth.
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Property Address
'11845 Dublin Blvd. Dublin. CA
36. EWTIRE AGREEMEN.T. the foregoing constitutes the entire agreement between the parties and may be modified only In writing signed by all parties. The
following are a PElrt of this Lease:
The undersigned Lessee acknowledges that he or she has tliorougldy mad and approve~ each oii'the provisions (:Ol!lltained iill ~l~u,"
Offer, and agree~ to the rms and conditions specified.
Lessee~ ./. Date ,I/- 2-2 -05 Lessee
Date
Receipt for deposit acknowfedged by
Date
I.
ACCEPTANCE
The umierrsigl'ied Lessor accept:;; the 1foregoin9 Offer and! agrees to Lease the premises on the teums and cOl'lldiUans set forth ab~ml'"
, Lessor ~ftiUJ.~
I
Date
J//z~.r
Lessee acknowledges receipt of a copy ofttle accepted Lease on (date)
L-J L-J
(initials)
Page:.3 I' -~ ~:;
~:;.
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NCR (No Carbon Required}
COMMEf:CUU. LEASE AND DEPOSiT RECEIPT
RECEIVED FROM _~LTIl1ATE HOME SOLUTIONS
thesumof$ 1.209.59 (One thousand two
evidenced by .G.h.er k
TOTAL ....... . . . . . . . . . . . . ; . . . . . . . . . '. . . . . . . . . . . . . . . . . . . . . . .
$
$
$ -:-:-:-----
$ 1,039,73
In the event th is Lease is not accepted by the Lessor within 5 days, the total deposit received will be, refunded.
L!"ssee offers to lease from Lessor the premises situated in the City of -Pub1i.!L-_, County of Alameda
State of r.81ifoYniA,des.(::ribedasJla.r.eh.Q.lj~f' "'P;q('p bphjnd ~TnllrpPY r.hl1YC'h- D'lhHn Shopping r'E>J'1te,">:;f
consisting of approximately L~_ square feet, upon the following terms and conditions: ,
1. TERM. The term will commence pn June 17th" 2002. and.4iiAd..oA Continue Mont,h-to-Honth ,_,_..
2. RfNT. Tt!;) total rent will be $ Nj A ,p'ayable ~t$ 728.00 per month (based on first year's ;etas) payable on the"
F~rs t day of each month. All rents will be paid to Lessor or his or her authorized agent, at the following address
1211 Newell Avenue. Sui~e 116 Wa1nutCreek~596
or at such other places as may be designated b_y Le}?j;pr from .time to time. In the event rent is not paid w~thin ~_ days after r!us
date, Lessee agrees to Qay a late charge of $ 5.0. vv plus Interest at ' 8 % per annum on the delinquent amount. lessee TUT'
ther agrees to pay $-1.j .00 for each dishonored bank check. The late charge pedod is not a grace period, and Lessor is entitled lO
make written demand for any ,rent if not paid when due. ' ~ ' , . .
;:;>. USE. The- premises are to be used for the operation of Storage or }"urE,u:uy_"
and for no other purpose, without prior written consent of Lessor. Lesse," will not commit any waste upon the premises, or any llui-
sance or act which may disturb the quiet enjoyment of any tenant in the building.
4. USES; PROHmITED. Lessee will not use any portion of the premises for purposes ether than those specified. 1"10 use will bfi made or
permitted to be made upon the premises, nor acts done, which will increase the existing rate of insurance upon the property, or caw;"!
cancellation of insurance j<Jiicies covering the property. Lessee will not conduct or permit any sale by auction on the premises.
s. P..SSWNMENT Afl.W SlIBLdTIINC. Lessee wif! not assign this Lease or sublet any portion of the premises without pdor written con-
sent of the Lessor, which wili not be unreasonably withheld. Any such assignment or subletting without consent will be void and,. 2:
the option of the L8S2:X, will terminate this Lease.
6. ORDINANCES AN[) STATUTES. Lessee wH! comply with all statutes, ordinances, and requimments of all municipal, state 2nd fecLJr:c!
authorities now in force, or whiCh may later be in force, regarding the use of the premises. The commencement or pendency of a;,) ,
state Ct fedeml cc urt abatement proceeding affecting the use of the premises will, atthe option of the Lessor, be, leemed a bresch cf
this Lease.
7. I\l1P.H\lTENANCE, IREPAmS, tU..TERATIONS. Uniess oth, "wise indicated, Lessee acknowledges that the premises are In good orde'-
and repair. Lessee will, at his or her own expense, maintain the premises in a good and safe condition, including plate glass, elect"-
cal wiring, plumbing and heating and air conditioning installations, and any other syst(3ri1 or equipment. The premises wi!! be SUi,
rendered, at termination of the lease, in as good condition as received, normal wear and tear excepted. Lessee will be responsihle
for all repairs required except the following which wiil be maintained bV Lessor: roof, exterior walls, structural foundaiions (in~iud-
ing any retrofitting required by governmental authorities) and: _~ _"
Lessee c:::J vvill, ~ will not maintain the property adjacent to the premises, such as sidewalks, driVeways, lawns, and shrubber,/,
which would otherwise be maintained by Lessor.
No improvement or alteration of the premises will be made without the prior written consent of the Lessor. Prior to the corn-
mer.cement of any substantial repair, improvement, or alteration, Lessee will give I_essar at least two (2) days written notice in oede,!.
that Lessor may post appropriate not: ces to avoid any liability for liens.
8. ENTRY Ar'm INSPECTiON. Lessee will permit Lessor 6r Lessor's agents to enter the premises at reasonable tilTles and upon rei.iSi
able notice for the purpose of inspecting the premises, md will permit Lessor, at ali'{ time within shrry (60l days prior to tho explr;,.
tion of this Lease, to place upon the premiseS any usual "For Lease" signs, and permit persons desiring to lease the premises.
inspect the premises at reasonable times.'
9. IN[JEMi\!!FICATJO N OF I..ESSQ~. Lessor will not be liable for any damage or injury to L,;ssee, or any other person, or to any prop,',r-
tv, occurring on the premises. Lessee agrees to h,)ld Lessor harmless from any claims for damages arising out of Lessee's use of tho
premises, and to indemnify Lessor for any expense incurred by Lessor in defending &ny such claims. ,
itL POSSE~5l0N. If Lessor is unable to deliver posse;5sion of the premises at the commencement date set forth above, Lessor wi!! net b:.
liable for an';, damage calJsed by th8 delay, nor \Nil! this Lease be void or voidable, but Lesse1rvvill not be liable for any rent unti! pC"""
session is delivered. Lessee may terrninate this Lsc)se if possession is not delivered within ~_ days of the r;ommencementts!\,
in Item 1.
.,"" . ~<'-",-'e "'\!"'"I"'m"~~ l 'h' I '1' . . I I bl' I' ,... d rt' . .
~ L. ....;;,~_'t;~_t;: ,-,. h :;)q",li'..P"IA!\'.'\i.":~~4 0ssee, at IS or+ tler E;)(DenSe, WI I matnta:n pate Ci assf PU IC(19DUIWtan. pr'ope LV QRr-18ge msurance lfL:-iUi'-
ing Lessee and Lessor with minimum coVer89~) as fal/olills: _One. m:Ll,;[:iou_ ($l...e~~.!_:::..~_,__________._..___.
Lessee vv{ll Pl<ovide Lessor vvith a Certifi~;o:tE; of Insurance shov\,ing Lessor as additional insured* The pcilicy V\fl!t requ~rr.; t;~;'~ {'; .
vVr-tlt. not; cp- to Les;;or DriGf to {;ancl2diat1on or rna.t&rtal Cht:1n(H~ of covera.ge.
iSU\1J.\',CZ:. l.cclssc;r wili maintain hazard insurance cO~8ring one hur,dred percent. (100%) actUal cash v[i!u8 of
inlproyern[jnts thr'oughout the Leer.:i8 terrn. Lessor's insurance vvilf not insure Lessee's pe.rsonal property, leasehold 1rnp;~OVenHj!^,.) :;'[
or trade. f[)~tuies,
Other .........,...........................................
. , rr.-=,-' hereinafter r-eferred LO as l.ESSEE,
hundred' nine and 59/100 Wiki~******i~*'ht*,**1d"h ** dollars],.
, as a deposit which will belong to Lessor and will be applied as follows:
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
339.73' $ $ 339.73
700.00 $ ------ $ 700.00
$ $
$ $
1,039.73
Rent fortne period from 6/10/02 to 7/1/02
Security deposit (not applicable toward last month's rent)
1">
*'i: See .At:t"BCrled ExLibit ~IAH of Pre.:mises..
ef~UT!O N: The co.pyright ~avli's of the United States forbid thp unauthorized reproduction or this form hy any means including
scanning or computerized formats,'
Page 1 of 3
FO RtVi 1 Q"7.'f (7 -S7} COPYRIGHT 1f) t!?~:!.-3'i BY ?~{OF;::3SlDNJ\L PU[";~:SH{~,\G, 880 U\S GAlUN,1.S AVE. $f.:,N f1AFAEL CA Sf.;S03 (415": 472~!964 F,~X{<115i 472.20SS
J J.1 Uti t,)1....
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.NCR (No Carbon Required)
Property Address
13. SUBROCATION. To th'e maximum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee
waive any and all fights of subrogation which might otherwise exist. "
14. UTIUTrES. lessee agrees that he or she will be resp.onsible for the payment of all utilities, including water, gas, electricityr heat and
other services delivered to the premises, except: N! A . . . . . ."
"/5. SIGNS. Lessee will not place, maintain, nor permit any sign or awning on any exterior door, wall, or window of 1:h e premises. without
the express written ccinsent of Lessor, which will not be unreasonably withheld, and of appropriate governmerlltal authGrities.
16. ABANDONMENT OF PREMISES. Lessee will not vacate or abandon the premises at aiw time during the term 01 this,Lease.lf. Lessee
does abandon or vacate the premises, or is dispossessed by process of law, or otherwise, any personal property belonging to Lessee
left on the premises will be de.smed to be abandoned, at the option of Lessor.
17. CONDEMNA.TION. If any part of the premises is condemned for public use, and a part remains which is susceptible of occupation by
Lessee, this Lease will, as to the .part taken, terminate as of the date the condemnor acquires possession. Lessl$e will be required to
pay such proportion of the rent for tlie remaining term as the value of the premises remaining bears to the tota I value of the premis-
es at the datfJ of condemnation; provided, however, that either party may, at his or her option, terminate this Lease as of the date the
condemnor acquires possession. In the event that the premises are condemned in whole, orthe remainder is not susceptible for USE>
by the Lessee, this Lease will terminate upon the date which the condemnor acquires possession. All sums which may be payable. or.
account of any condemnation will belong solely to the Lessor; except that Lessee will be entitled to retain any amount awarded tCl
him or her for his or her trade fixtures and moving expenses.
18. TRADE FIXTURES. Any and all improvements made to the premises during the term will belong to..the Lessor, except trade fixtures
of the Lessee. Lessee may, upon termination, remove all his or her trade fixtures, but will pay for all costs necessary to repair lmy
damage to the premises occasioned by the removal. . .
19. DESTRUCTIO\\! OF PREMISES. In the evellbq!a partial destruction of the premises during the term, from any cause except acts or
omission of Lessee, Lessor will ~~~ repair the premises,~Ilfmj~Y~~~Xl:il!~~~c~1.'tJ
~.~!lc::pXlltOO~WmKllII.1{~~~N:~~!~~~~:gi!l$t~},!j~.~~~e{,R[
m~E{orJx~~:lb:e:ioglm~ill:5!eEl~m:~"T.lt:m::MI.t!Dxbm::~~Xlt1mnm-mpm~Iif~:wll:l:i~~~~q[
xmitht!t{JiIle:ro!i~XImc~Im~I1!GKQM.Tt::wI:fil1Ql:i~l$~~1Ar"~'~m'H-m~m:>tmPi~~1J:iKpaif{l:~~;{
~Vii~\lff~1j:~~;{li~~~W-tY:l'f~:l€Jl&~~~x. ..
20. HAZARDOUS MATERIALS. Lessee will not Use, store, or dIspose af any hazardous substances upon the premises, except theuDe and
storage of such substances that are customarily used in Lessee's business, and are in comptiance with all environmental laws.
Hazardous substances means any hazardous waste, substance ortoxic materials regulated under any environmental laws orregula.
tions applicable to the property. Lessee wi!! be responsible for the cost of removal of any toxic contamination caused by lessee's use
of the premises. ,
21. INSOLVENCY. The appointment of a receive'r, an assignment for the benefits of creditors, or the filing of a petition in bankruptcy by
or against Lessee, will constitute a breach ofthis Lease by Lessee. . .
;;:2. DEFAUI.T. In the event of any breach of this Lease by Lessee, Lessor may, at his or her option, terminate the Lease and recover fron,
Lessee: (a) the worth at the time of award of the unpaid rent which had been earned at the time of termination;.{b} the worth at tho
time of awar.d of the amount by which the unpaid rent which would have been earned after termination until the time of the i;;ward
exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided;{c} the worth at the time 0'"
award of the amOUnt by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental
loss that the Lessee proves could be reasonably avoided; and (d) any other amount necessary to compensate Lessorfor af! the detri..
ment proximately caused by the Lessee's faiIureto perform his or her obligations under the Lease or which in the ordinary course or
things would be likely to result therefrom.
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor does not terminate Lessee's right to possession, and
Lessor may enforce all of Lessor's ~ights and remedies under the Lease,inciuding the right to recover the rent as it becomes au."
under the Lease. If said breach of Lease continues, Lessor may, at any time thereafter, elect to tsrminatethe Lease.
These provisions will not limit any other rights or remedies which Lessor may have. '
23. SECURITY. The security deposit wi.ll secure the performance of the Lessee's obligations. Lessor may, but will nat be obligated lQ..
apply all or portions of the deposit on account of Lessee's obligations. Any balance remaining upon termination wil! be returned to
Lessee. Lessee Will not have the right to apply the security deposit in payment of the last month's rent.
24. DEPOSIT RSFUt\lD$. The balance of all deposits wi!! be refunded within three (3) weeks (or as otherwise required by law), from date
possession is delivered to Lessor or his or her authorfZ:ectagent, together with a statement showing any charges made against thD
deposits by Lessor. '
25. A"!'TORNEY F!:ES. In any action or proceeding involving a dispute betvveen Lessor and Lessee arising out of this Lease, the prevan-
ing party will be entitled to reasonable attorney fees.
28. WAiVER. NofaHure of Lessorto enforce any term of this Lease will be deemed to be a waiver.
::17. NOTICES, Any notice whic:h either party mayor is required to give, will be given by mailing the notice, postage prepaid, to Lessee st
the premises, 01' to Lessor at the address shown in ltorn 2, or at such other places as may be desighated in writing by the parties frarn
time to time. Notice will be effective five (5) days after mailing, or on personal delivery, or when receipt is acknowledged in writinG.
28. !{lOL,pil\m OVER. An7~'fJdi88 over after t~e expiration of this Le~se, wit.h the consent of Own,er, will be a mo~th,-to.imon"th ~enanC)lEt
a monthly rent of $~~, payable In .advance and othenNlse subject to the terms ofth!s Lease, as appllcable, untIl eltherp8ny
will terminate the tenancy by giving the other party thirty (30) days written notice.
29, TiME. Time is of the essence of this Lease.
~C. HiEl!1S, ASSiGNS, SUCCESSORS. 'f,:~@mooM~Ypij;'8Swif*i1;~~~~~Ji]k\'{iik~"-i-<<}(ff~~}i4t:la>l:J;:i&~~~~JEW0Ki;:;g~;'H':H~~.
;:;'Q . TAX INCRE.i~,S!!:. mttK"K?~,emrJ'bl~u!;iIDdrf'~~F".x!.'jJJI'J!';1~;:.FJ\lJi{yJX4IT0tt:1AC')C~'l.})il~o;X~~D'J):1'JiIDrr'Jli~:;:M@yJQIl&i')@\jX!Xi;1:il~l{~:Jt;':;>
~ . "';. '. ~ .. . .. . ':}k:,L.'fl~' :C~""""f"V6'ReR~' L.:e~HN#lrOO!j'\'{:\;~' 1"ef'.BVl:r(~rxliliWl;j't\':'\i'b'
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i-N-IHi ;+""'%-li'fl€':5~ ~&8~I'l'3'-0I'.'Jt!'I'e'U, ';:N!l'l-&" ~'E;.J'''''''8l-1;,i"
KiXdEM100W&,.j{:fTXi[*.:&illHdWiYJfY~iOO~*f-illf1~XI~i51!lxrc@[~~?li}Hr.1[J1!iX!l!g{i)fB;...Jf]7,lQrnIY:q~&.1(E:f~~ew..n1\i:lb~4ll:e:rm'eAllXI&~,Y;'r.L~";;':;'Li..<
. TIX!1(!);.i;X~~t}a,'{JXXi!tm"lliff..Qr,:~;~tt"g,XW~liX:;j)Ql~~X~Dili'\fl:[XjlGi[lW.;}lI:IijXC;;tliV,j}:'Nil?)UL'f.aliBijlKl$3{'i)6X.
CAUTiON: The cop.yright laws of the United Stales forbid the unauthorized reproductiun oythiz form by 81lymeuns including
scanning or c.omputerir.ud formats. .
P3ge 2 of 3
FORM :J 07.2 (7.97) COPVRIGHT@ 1993-97 BY PROFESSIONAL PU8L1SHING, 890 LAS Gft.LLlNAS AVE" SAN RAFAEL. CA 94903 (415147~.1954 FAX{4151 ;72.2059
Im1., PM:. ~F!1:S.$1!i:1Ji.i.i'~,b,o:~
!JJ! PllI!llUSm~~c:;
NCR (No Carb.on Required)
Property A.ddress _
!}2. COST 0::: LIVING INCREP,SE. The rent provided for in Item 2 will be adjusted.effective upon the first day ofthe m ooth immediately fOl-
lowing the expiration of 12 months from date of commencement of the term, and upon the expiration of each 12 months thereafter,
in accordance with changes in the U.S. Consuer Price index for All Urban Consumers (1982-84= 100) (UCPI"). The monthly rent wiil
be increased to an amount equal to the monthiy rent set forth in Item 2, multiplied by a fraction the numerator of which is the Cf'i for
the second calendar month immediately preceding the adjustment date, aild the denominator of which is the CPI for the second cid-
endar month preceding the coml}1sncement of the Lease term; provided, however, that the monthly rent will not be less than ti w
amount set forth in Item 2. .
33. OPTION TO RENEW_X>400~~~~m1w~~fi~Q;;~~;~P\iIQi;WW*~r
n';ID!>~~XM.::IDti!.xz.xxJh~r '~.r". . _ oo~rj'ft~l*,
,:lr"1:.v:vV1,'J....."}\"rfi);.11:YIY'.~r.l"'\1:1I:ilW1:.V_VVV'!Z..\7iVY_i!:\{llJ[Y::I?:V.1i." '. . nr r . r r "(\rrv I
.QJ.,,-"""'""""""'a--"i"t'""l'"'.......iH~'H"">(~~__'f,:\>H~"'~ 19". 'f . tiS ,,\:-:!i:j
. ~ ~ ~~',"XJX:~. .
~~~~m-ua~~ur~~~:ID~Qi;Zd;d
l1iIDfiOEm.\illii{l&i}fiAliqilliKilGli''M:li~.KiiJl1f;a~d}]il''~~~.
~4. AMERICANS WITH tnSABILiTliES P.cr. -j-he parties are alerted to the existence of the Americans With Disabilities Act, which may
cequire costly structural modifications. The parties are advised to consult with a professional familiar with the requirements of th'~
A~ .
1);5. LESSOR'S UABillTY. In the event of a tcansfer of Lessor's tItle or interest to the property during the term of this Lease, Lessee agrees
that the grantee of such title or interest will be susbtitituted as the Lessor undel- this Lease, and the original Lessor will be released of
all further liability; provided, that all deposits will be transferred to the gmntee.
36. eSTOPPIEl. CE!tT!~ICArE. .
(a) On ten (101 days' prior wrirtt,e' notice from Lessor, Lessee will execute, aclmovvledge, and deliver to Lessor a statement in wrIt-
ing: [1] certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and
certifying thatthis Lease; as so mocjified, is in full force and effect), the amount of any security deposit, and the date to which the nL It
and other charges are paid in advance, if any;,and [2] acknowledging thijt there are not, to Lessee's knowledge, any uncUi"d defaults
on the part of Lessor, or .specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any
prospective buyer or encumbrancer of the premises. .
(b) At Lessor's optic", Lessee's failure to deliver such statement within such time will be a material breach of this Lease or wlli 00
conclusive upon Lessee: [1] that this lease is in fuli force and effect, 'without modification except as may be represented by lessor:
[2J that there are no uncured defaults in Lessor's performance; and [3] that not more than one month's rent has been paid in advanc".
. (c) If Lessor desires to finance, refinance, or sell the. premises, or any part thereof, Lessee agrees to deliver to any lender or buyer
designated by Lessor such financial statements of Le'.'3ee as may be reasonably required by such lender or buyer. All financial s1:;:,ie.
ments wil! be received by the lessor or the lender or buyer in confidence and will be used onlv for the purposes set forth.
37. ENTIRE AGr<EEflllr~Nr. The foregoing constitutes the entire agreement between the partie, and may be modified only in writin:;:
signed by all parties. The following exhibits are a part of this Lease:
Exhibit ,1'>.: ~..a.s..e.rlJ~mises
Exhibit B:__
Exhibit C:
The undersigned lessee acknowledges that he o. sIla has thoroughly read and approved each of the provisions contained in this 011:::,.
and agrf'SS to)};l~ms and conditions specified. " . /..1...... . I
Les,,~~' __ D'''~~ ,,,'" ~C< /~_ DatL4b'Z;6:C>
F-leceipt for a;{p~sit acknowiedged by . . Date
L
ACCEPTANCE
The tmdersigned l.ess,or accepts the foregoing Offer and agre!;E...to lease the premises 011 the terms and conditions set forth above.
Nf?.d.I!CE: The amou:nt or rate of rea! estat8 cornnisslons is notf:ixed by law. They are se:t..QV each broker individu..
--'-"""'d .'- . ~ ." ,. ~. .'-----,.,"~ - ------- - . ~-.....-
an m <iY1H':-nt~1ab:le.J..}etweenme--c;WTri.;hC,!U~" _______ --------....
'. ~---' ------ _________. n . ~ .
Tne Lessor flQreestooay to ~---.....- .. ... ~___.~:--___. ___.~ tne broker m thIS ,rcl-R$..actlon,
ttresumOr"S:= ~--=--=j)ner-flices ienrlereo a~la-a\illlonzp..$..{}roRer-to oaQuct s81cIsU~$11'rfhe depositrecet'7BGl-fr..Qm Lessee. ::>-_ _..
In th.e event th:~.!~ase is ~x.L~nded for a ~!e~init:3.f;l>9'ri~ of time or on a mont;;z:,manth basis afte.r exr::.ir~tion O~~T-i~1 tel:io, .
Le:';sor will_J:5J,;(d;d..r'O.B:.:er..a.C'....ar.l.dit.r.Q.naLco.mf'..::w::Sl.e-r.i. (___.~J.nfJ:b.e..toiaLraata' TOr the extended penod. 1 hiS W.I'T,mISSIOf1 Wfl! De (;,.1
and p9-v..d:rie at the co mmencement or t.he-'5Xtendeci period if for a fixE,~,or jf on a month-to-ro.Gfltl~[S, at the termination c;!
L~fels occupanc'/or orle-year~w.8tF~er..r~,~ e3[Tre~--'- .~/
In any action fa I' c:ornrnissiOrl, the' prevailing partywilt he entitled to rea20nable attorney f,ees.
YJf,~,f.J,-4: A ,II;. r IJ, . _ r;, ,
Lesso: _J i1ty~.I_/.~.j/j:L~;:'.~::.:..:.~_____. l)3tC \-. (....-- L3ssor ___,___. ._~___. Date__.,~..__._~
Lessee acknowledges receipt of a copy of the accepted Lease on (cL::te! ____._____._____ [__.1' l-J
{initbl"f
G.I\UTION: The cfipyri!]ht iti1v'ls of the UnHed" States forhid the Ufi8uthoriL:ed !'eproduc.~tinn of thi:; ferm by any. rricans tnciutling
sca.uning or cornputsfizeili fnrmats.
P;:'f~e 3 of- 3
F':O Hfil1 1 07 ~3 {7~97} CG:PYRlGHT It; i~s3-~r; J'{ pnOFtS~lONAL PUBLiSHING, 880 U.$ C,l\,t.U~gS AVE., SAN AAFAEL, CA !if,SD3 {415i4n~lflfi4 FAJ~ (4\5} 47'2:<W6lJ
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II EXHIBIT' A
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FIRST AlVIENDMENT TO
COMJVrERCIAL LEASE AND DEPOSIT RECEIPT
Parties
Tllis First i\mendment to Commercial Lease and Deposit Receipt is entered into between
Al'IDREVl :HONTER, doing business as uLTIMATE HOME SOLUTIONS ('Lessee") and
BERKELEY LJ.J'ID CO., INC., a Cal~tomia corporation ("Lessor") on the date set forth below.
Purpose
This Agreement is made with reference to the following:
A. On June 12, 2002, Lessee and Lessor entered into a Commercial Lease and
Deposit Receipt whereby Lessee leased from Lessor 1,456 square [;,;t of storage spz:ce (the
"Current Space") (a description of which is set forth on Exhibit A, attached hereto) located
behind the JOllilley Church in the Dublin Shopping Center owned by Lessor, a copy ofwllich
Lease is attached hereto as EyJUbit B (the "Lease').
B. Under il'1e terms of the Lease, Lessee is a month-to-month tenant at an agreed
monthly rental of $728 per month ($.50 per square foot).
C. Lessee wishes to vacate the CUlTent Space and occupy instead an adjoining
storage space consisting of 5,042 square feet (the "l\feVI Space") (a description of which is set
forth on Exhibit C, attached hereto) on all the S<L"J.1e temlS and conditions set forth in the Lease,
with the execution of rent. as set forth below.
1. .
Agreement
Thereiore, it is AGH.EED AS FOLLOWS:
1. ;[(evitaJs Are Tl1~: The recitals set forth above me true and correct.
2. Current Suace to be Vacated: On or before Seutember 15, 2002, Lessee shall
____.~'-_~"_--_-_ J..
vacate the Current Space, whier: Space sha]] be Iefl in a b:roon:-c1e811 condition.
3. OQ.clIQatjoe of}}eJ:l S:QftCe:
occupy and be the tenant Space.
on~ SCl)teluber 15~ 2002, Lcsse~;
1
I L.f~ 2~~)~'
4. Rent For New Space: The rent payable by Lessee to Lessor for the Current Space
in the sum of Seven Hundred Twenty Eight Dollars ($728.00) per month, shall be increased to
Two Thousand Five Hundred Twenty One Dollars ($2,521.00) per month, commencing
September 15, 2002. The prorated rent for the New Space from September 15,2002 shall be
One Thousand Two Hundred Sixty Dollars and Fifty Cents ($1,260.50). Deducting from that
one-half of the monthly rent for the Current Space, which is the sum of Three Hundred Sixty
Four Dollars ($364.00), leaves additional rent due for the month of September of Eight Hundred
Ninety Six Dollars and Fifty Cents ($896.50), which shall be payable upon execution of this
Amendment. Commencing October 1, 2002, Lessee shall pay to Lessor, the full base rent of
$2,521.00, set forth above.
'i All Other Terms LeaseDnchanged: All other terms and conditions of the Lease
remain unchanged and in effect.
BERKELEYLAND CO., INC.,
a California corporation
Dated:
(Jet
3-
"
, 2002
By:
Its:
vwJL;(~
:Dated: /6 ~ :J
,2002
hJ ~.
By: L ~ /' ( '\.
ANDREW If(}N'fER, individually
and doing business as
ULTIIVrATE HOME SOLUTIONS
2
. .
i
,
C'
t::~;6 /7- It.
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~; ::~> .t;;;i
NCR {No CarQon Requlred~
COMMERCUU. fLEAse AND Dt::POS~T RECEIPT
RECEIVED FROM ULTD1ATE ROME SOLUTIONS
thesumofSl.209.59 (One thousand two
evidenced by ..check
Rentforthe period from 6/10/02
Security deposit (not applicable toward last month's rent)
Other. . . ......,.. .. .................... .......... .........
to 7/1/02
., , _. ' , hereinafte,r r€ferred to as LESSEE,
hundred' nille and 59 / 100 ,<<;~'k**'ld:1~****'Jd:-:l:***i~*** dollars;,
, as a deposit which will belong to Lessor and will be .applied as follows:
, "
TOTAL RECEIVED BALANCE DUE PRIOR TOOCCUPANC\'
339.73 $ $ 339.73
700.00 ------ $ 700; 00
$
$ $
$ , $
$
$
$
$ 1.,039.73
1.039.73
TOTA;.. ...................,................ .,...... .........
In the event this Lease is not accepted by the Lessor within ~_ days, the total deposit received will be refunded.
l?ssee offers to lease from Lessor the premises situated in the City Of Duhlin ,County of Alameda..__.._,
State of-CaJ ffnrnia, described as Jla:r:.ehol1Qp e:pR('t> bpb'inr1 TOl'rna~.hlJrr'n n,,!.l;n <:::hoPP-ip8 Ce..Il..t..e.:J:;2;7;'
consisting of approximately l.illL- square feet, upon the following terms and conditions:
1. TERM. The term will commence pn June 17th", 2002 and-lii...d..o;+ Cont:i,JJ.uB Month-to-MQnth ,_,
2. REN1". The total rent wilt be $ N / A , paY-able at $ 728.00 per month (based on first year's: rates) payable on th:;,
Firs t day of each month..AlI rents will be paid to Lessor or his or her authorized agent, at the following address
12J.l Newel] Av:~futite 116 ,Wa1nnt Cr~ek, CA 94596", ,
or at such other places as may be designated ~y, LSdBor from time to time. In the event rent is not paid wihin 5 clays after dus
date, Lessee agrees to blav.a late charge of $ O. plus interest aL~% per annum on the delinquent amount. Lessee fu;'
tller agrees to pay $~Q.... for each dishonored bank check. The late charge period is not a grace period, and Lessor is entitled tc
make written demand for any rent if not paid when dUB. , ' .
3. lJSS. The premises are "to be used for the operation of Storage of FuruJ.ture.
and for no other purpose, without prior written consent of Lessor. Lessee will not commit any waste upon the premises, or any nui.
sance or act which may disturb the quiet enjoyment of any tenant in the building. ,
tJ,. uses PROHIB!TED. ~essee will not use any portion of the premises for purposes other than those specified. No use will be made Cir
permitted to be made upon the premises. nor acts done, which will increase the ,existing rate of insurance upon the propert':{, or caL'S,S
cancellation of insurance poiicies covering the property. Lessee will not conduct or permit any sale b'{ aucticn on tbe ,premises.
5. ASS!GNMEI'.-rr #UI!O SUBLETTING. L.essee will not assign this Lease or sublet any portion of the premises vvithout prior written con.,
sent of the Lessor, which will not be unreasonabh/ withheld. Any such assignment or subletting without conse.nt will be void and, .::;.
the option of the Lessor, will terminate this Lease.
6. ORDINAIIlC:ES AND SI'ATUTES. Lessee will comply with ali statutes, ordinances, and requirements of an municIpal, state and federal
authorities now in force, or which may later be in force, regarding the use of the premises. The commencernent or pendency of an'"' .
state orfederal co urt abatement proceeding affecting the, use ofthe Pl'emises will, at the option of the Lessor, be deemed a breach cf
this Lease. ,
"'. M.!\.!NTENAI"iCE<. ~E?AmS. JU.iERATIONS. Unless otherv<lise indicated, Lessee acknowledges that the premises are in good order
and repair. Lessee will, at his or her own expense, maintain the premises in a good and safe condition, including plate glass, eiectri.-
cal wiring, plumbing and heating and air conditioning installations, and any other system or equipment. The premises will be !C:U;-n
rendered, at termination of the Lease,in as good condition as received, normal wear and tear exoepted. Lessee will be responsib:"
for all repairs required, exceptthefol!owing which will be maIntained by Lessor: roof, exterior walls, structural foundations (includ-
ing any retrofittinW\3quired by povernmental authoritiesl and: ~~_ ".__<
Lessee CJ will, E~ will not r"aintain the property adjacent to the premises, such as sidewalks, driveways, lawns, and shrubbery,
'Nhich would othe rwise be maintained by Lessor.
hlo improvement or alteration of the premises will be made without the prior written consent of the Lessor. Prior to the con'"
rnencement of any substnntlal repair, improvement, or alteration, Lessfl8 will give Lessor at least two (2) days written notice in onjc,-
that Lessor ma',I post apDropriats notices to avoid anv liabillty for liens. . .
S. ENTRY ANt: It\lSP'ElCTH)'i\l. .Lesseewm permit Lessor 'or Le'ssor's agents to enter the premises at reasonable times and upon reaso!!.,
abie notice ror tb" purpose of inspecting the D,ernis&s, and will permit Lessor, at any time within si;;.'ty [6tll days prior to the e;(p'rc>
tion of this Lease, t? place upon the premises any usual "FOr LOcii;e" signs, and permit person$ desiring to rease the premises
inspect the premises at rr;asonable times. ' _
9. IrJO:SMNIFiCP.TION Or:!..E~'::SCl'::, Lessor wii! not be liabl;.! for any damage or injUlY to Lessee, or any otlier person, or to any prope..
tv, occurring on the premises. Lessee agrees to hold Lessor harmless from any claims for damages arising out of Lessee's use of tho
premises, and 'to indemnify L.essor for any expense incurred by Lessor in defending any such claims.
1CJ; PO;::>'::ESS!OI\!. If Lessor is Una; 'e to deliver possession o'f the premises at the commencement date set forth above, Lessor will not
liab:~ fo~ anj' .damag~1 caus;;\d by the d.ttle\" ~~r will till?, Lease b~ vo.id or v~i~able, bl1~ ~:sse16Nill not be l1?c;ie for any rent unt~i POc-
sessIOn IS delivered. Lessee may terminate tnls Lease Ii possessIOn IS not aelivered wltmn '.' aays oTtne commencemen.; tcr, i
in Item 1. .
'~i" L;SSE~~rS [r;,jsUt~~r"J.C;E..Le~~see, at his or her expenS(~r \tvHl rnaintain plai'8 class, ~ubHc ii9oi.JitV'Do,.nd property damaqa Insurance ins~j;''''
Lessee <:nd Le S8,)r witii minimum coverage iF" follows: _ OLl~ m:Lt.r~?!2-.lt.1. , QUO, 0 U) __. C " __...
w;!! provide Lss::or with a Certi-i'ieate of InsurancF; "howing Lessor as additional insured. The poii::'y' wit! require tOil [1
wdtte: not! ce -{o Lessor prior t(\ cance!lation O~ r:latG.rif.',~ ch-rnl,ge of CCVl~t'(.H:~G4
",:"'. H;<';~JR.AJ~C!:. Lessor will maimain h,3zard insuriince Go~'el'ing or,," ~IUi\dred p)rcent (100%) actual C83h ';taiue of
irnproye:-nents throughout the L.ease terrn, Lessor's insurance vvi!! not insurf;' L8SGe~rS personal prDperty, le8sehol.d inlprO\1 GrnSl"1 lC;..
or trade fixtures.
*'J~ Se:e Attaclv:?-d E:Kb.ibit 'tfA~n of Prern:i.s8s"
CAUTI'Or'J: The copyrinht UHH'itS of the- United States forbid the un:D~thorized rapfoductitlfi of '(his Torn: Oy any mSBriS induding
sr~annlng or cornpul~nized formats. .
Pa~lE; 1 of:3
F~Jf\ fv'11 07.1 (7..87 j COPYB!GHT i..t,} mS3-97 CY Fr;O~E~$lCN.c.L PUBLISH-lNG, 330 U.S GAlUNA:~ AVE.. S!\N 1--lAfAEL Cf.\ 94S03 1415i 47Z.1864 Ft\;,\ (4151 472-2OOU
i/i lU~;t! :C~1HI i r~.l1 ~(~.
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NCR (No Carbon Required) Property Address
13. SUBROGP,TiON. To the maximum extent permitted by insurance policies which may be owned by the partie:s, Lessor and Lessee
waive any and all rights of subrogation which might otherwise exist. .'
'. UTILITIES. lessee agrees that he or she will be responsible for the payment of alt utilities, including water, gas, electricity, heat and
other services delivered to the premises,except: NI A . .. .
'is. SIGNS. Lessee will.nofplace, maintain, nor permit any sign or awning on any exterior door, wall, or window of1:he premises. without
the express written co:nsent of Lessor, which will not be unreasonably withheld/and of appropriate governmeOlta! authorities.
16. ABAJ'!DONMENT OF PREMISES. Lessee wiH not vacate or abandon the premises at anytime during the term oithls.Lease.lf Lessee
does abandon or vacate the premises, or is dispossessed by process of l;:lw, or otherwise, any personal property belonging to lessee
left on the .premises will be deemed to be abandoned, at the option of Lessor. .
17. CONDEMNATION. If any part of the premises is condemned for public use, and a part remains whlch.is susceptible of occupation bV
Lessee, this Lease will, as to the .part taken, terminate as of the date the condemnor acquires possession. Lessee will be required to
pay sllch proportion of the rent for the remaining term as the value of the prem ises remaining bears to the tota I value of the prem is-
es at the date of condemnation; provided, however, that either party may, at his or her option, terminate this Lease as ofthe date th(~
condemnor acquires possession. In the event that the premises are condemned in whole, or the remainder is not susceptible for use
by the Lessee, this Lease wi.1I terminate upon the date which the condemnor acquires possession. AI! sums which may be payable on
account of any condemnation will belong solely to the Lessor; except that Lessee will be entitled to retain any amount awarded to
him or herfor his or her trade fixtures and moving expenses.
18. TRADE FiXTURES. Any and all improvements made to the premises during the term will belong to.the Lessor, except trade fixtures
of the Lessee. Lessee may, upon termination, remoOe all his or her trade fixtures, but will pay for all costs necessary to repair an}'
damage to the premises occasioned by the removal. _.
19. DS~T~UCTIOIV,OF PREMISES: In the eveB."b'tt.a partial d~struction .of the premises during the term, from any cause except acts or
Om!SSiOn of Lessee, Lessor WI!! ~ repaIr the premlses.,.~~~!!lii.l~~~vzg;.)
~1r.:=?l:a:Iltil:;dQt~~~~tU%iXX"~~:n.~'p:~~~~~illm:!W:lt\ij:~WF~~~~'qffKP'a{\;~{
~l:iKll'bm~xOCocxoom~~eElx:qm;rR~:nt~l)'".d\1:k:l\1:lt!ll:e::K1lElkb;q~Xlt..~FJ.M~>:li~~J.j;Ji~\'i:l't~,el;;~J:j:~.{
Xl"ll!:lthuKj&Den:NKem:J~:ri~~~r.:l3.ix!iOm1~~i:iiX~8~:g~WtJea~~V:~~~J\l~~~~{3:~~~Pgy::
~4gCm;jff~l~491tlj:~{\;~~~~iliiWY>'{I!mll~~iWebX. .
20. HAZARDOlJS MATERIA!.S. lesse.e will not us'e; store, or dispose of any haz.ardous substance.s upon the premises, except the use and
storage of such substances that are customarily used in Lessee's business, and are in compliance with all environmentai laws.
Hazardous substani;8s means any hazardous waste, substance or toxic materials regulated under any environmental laws or regula-
tions applicable to the property. Lessee will be responsible for the cost of removal of any toxic contamination caused by lessee's use.
of the oremises. .
21. If-!SO!.VEl\!CY. The appointment or a receive'r, an assignment for the benefits of creditors, or the filif\g of a petition in bankruptcy by
or against Lessee, will constitute a breach of this Lease by Lessee. .
22. DEFAULT. In the event of any breach of this Lease by Lessee, Lessor may, at his or her option, terminate the Lea~e and recover from
Lessee: (a) the worth at the time of award of the unpaid rent which had been earned at the time of termir,~,tion;Jb) the worth at t;.'6
time of award of the amount by which the unpaid rent which would have been a.aroed after termination until the time of the aW2i"G
exceeps the .amount of such rental loss that the Lessee proves CGuld have been reasonably avoided; (c) the worth at the time oT
award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the a mount of such rente!
loss that the Lessee proves could be reasoni1bly avoided; and (d) any other amount necessBty to compensate Lessor for all the detri-
ment proximately caused by the Lessee's failure to perform his or her obligations under the Lease or which in the ordinary course of
things would be likely to rf:jsult therefrom. .
Lessor may, in the alternative, continue this lease in effect,as long as Lessor does not terminate Lessee's rightto possession, and
Lessor may enforce all of Lessor's ("i9hts and remedies under the Leas.e, including the right to recover the rent as it becomes due
under the Lease. If said breach of Lease continues, Lessor may, at any time thereafter, elect to terminate the Lease.
These provisions will not limit any other rights or remedies which Lessor may have. -
23. SECURITY. The security deposit will secure the performance of the Lessee's obligations. Lessor may, but wil! not be obligated to,
apply all or portions of the deposit on account of Lessee's obligations. Any balance remaining upon termination will be returned to
Lessee. Lessee will not have the right to apply the security deposit in payment of the last month's rent.
24. OEPOS!1' RSiFUNDS. The balance of all deposits will be refunded within three {3} weeks (or as otherwise required by law), ff'OlTl date
possession is delivered to lessor or his or her authorized agent, together with a statement showing any charges made against the'
deposits by Lessor. .
25. ATTORNEY F~eS. In any action or proceeding involving a dispute between Lessor and Lessee arising out o'? this Lease, the prevail..
iflg party will be entitled to reasonable attorney fees.
26. WJWJE:~. No failure of lessor to enforce any term of this Lease will be deemed to be a waiver.
27. f\!OTICES, Any notice which either party mayor is required to gIve, will be given by mailing the notice, postage prepaid, to Lessee 2C
the premises, or to lessor at the address shown in Item 2, or at such other places as may be designated inwriting by the parties from
time to time. r'>lotice will be effective five (5) days after mailing, or on personal de! ivery, or when receipt is acknowledged in writing.
28;. HO!..OING OVER. Any ;~q.!djD~ over after the expiration of this Lease, with the consent of Owner, will be a month-to-month tenancy i;lC
a monthly rent of $-I:~~_, payable in advance and otherwise subject to the terms of this Lease, as appficabl&, until either- pm,'/
will terminate the tenancy by giving the other party thirty (30) dayswrittsn notice.
:;>S. TlrJ~E_ Time is of the essenCE) ofthis Lease.
'::!lO. Hi:!r~S, fi,,;;SIGr\!S, S;UCCE:;;~:Dr~::;. fiYFKl~M~q1ilBtw.1P6Ei~Xif:&K~,*,'li:ltWJ&V~JlJ).r~~;F~~~.zr.{fJi7i8";;j~6P$~~~;~~rt~~~',
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". ~. ~(,Ir.t,G(t. ',I){,I 'cJl,-+;a 'j(e;,.i1~6"~H -Y-. ,*e-o~:".~. 'cft,> ..... ,. .' fHl,sI'C..0tCli't,i"e. R~'7'$,;,b(;;$f;@"tl.,\".~,-, . a~. '(;>~I~~B~' frlfrfilrf,Hilili;ac,cr.".i;..,
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.JTlON: The copyright laws of the United States forbid the unauthorized reproduction ot this farm uy anymeans including
scanning or computerized formats.
Page 2 of 3
FO FaVi J 07 .2 (7 -S7} COFYEiGHT@ 1883-9] BY PROFESSIONAL PU8L!SH1NG, aBi) \.AS GALLlNAS AVE.. SAN RAFASL, GA 9'19Q3 (l,lSt '~72~19G4 FAX (415) fn~2L\fiS
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NeB (No Carbon Required}
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Property Address
i.>2. COST OF J.l\J!\'lJO INCREASE:. The rent provided for in Item 2 will be adjusted effective upon the first day of the month immediately fol.
lowing the expiration of 12 months from date of commencement of the term, and upon the expiration of each 12 months thereafter,
il1 accordance with changes in the U.S. Consumer Price Index for All Urban Consumers (1982-B4 = 10G} {"CPt"}. The monthly rent 'wii!
be increased toan amount equal to the monthly rent set forth in !tem 2, multiplied by a fraction the numerator of which is the CPI for
the second calendar month immediately preceding the adjustment date, ahd the denominator of which is the CPt for the second eel"
endar month preceding the com!)lencernent of the Lease term; provided, however, that tne monthly rent will not be less than the
amount set forth in Item 2. ,
"",nr'LTV_V1IT.ITV;V;,rY=:VYYY.V.V\T,V)'TY1'2'YY.JOCz.U?T.YYy'y'yvVV,V-Vyvvyv,vyyyvv.llllllry ''''''
:::~. OPTiON, TO RENEW, .~~1.[.f1'...J.lPl;OO"'_IS4'\-I!WH'H!1~:r"a,t\;fO"l'F\>-i!""""F""'l'!"Clf'fi'rtmee"e~~S'<:~~e''W'i ~' 'efteV1I'1:h',, ",
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..c;;i\r~.l~~~t4lUIilWIl-Y""'Iaf:Ib!oll~~~~M~$,g~~~_PH~~ . __ 'n . ~\rf!rnet=1~ f J'l':fe'LB'tijti8retl
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34. AMERICANS WITH DISABILiTiES: ACT. The parties are alerted to the existence of the Americans With Disabi liUes Act, which m;JY
require costly structural modificaTions. The parties are advised to consult with a, professional familiar with the, requirements of the
Act.
35. lES~OR'S lIAlSILlTY. In the event of a transfer of Lessor's title or interest to the property during the term ofthis Lease, Lessee agrees
that the grantee of such title or interest will be susbst;ituted as the Lessor under this Lease, and the original Lessor will be released or
all 'further liability; provided, that all deposits wi!! be transferred to the grantee.
36. 5STOIFPEI. CermFICA'i'E. '
(a) On ten (10) days' prior written notice from Lessor, Lessee witl execute, acknowledge, and deiiverto Lessor a statement in writ"
ing: [1 J certifying that this Lease is unmodified and in full force and effect (or, if nlodified, stating the nature of such modification ard
certifying that this Lease; as so modified, is in full force and effect), the amount of any security deposit, and the date to which the rent
and other charges are paid in advance, if any;, and [2] acknOWledging thgt there ar,e not, to Lessee's knowledge, any uncured defaults
on the part of Lessor, or,speci'fying such defaults if any are claimed. Any such statement mai' be conclusively relied upon by any
prospective buyer or encumbr2 neer of the premises.
(b) At Lessor's option, Lesse'- s failure to deliver such statement within such time will be a material breach of this Lease or will be
conclusive upon Lessee: [1] thCic this Lease is in full force and effect, without modification except as may be represented by Lessor:
'2J that there a re no uncured defaults in Lessor's perrormance; and [3] that not more than one month's rent has been paid in advance.
, (c) If Lessor desires to finance, refinance, or sell the premises, or any part thereof, Lessee agrees to deliver to any lender or bu,/er
designated by Lessor such financial statements of Lessee as may be reasonably required by such iender or buyer. All financial st"te-
:>lents will be received by the Le,ssDr or the lender or buyer in confidence and will be used only for the purposes set forth.
:.!7'. fENTlR5 P.CREEME:f\.!T. The foregoing constitutes the entire agre2ment between the parties and may be modified only in writing
signed by all parties. The following exhibits are a pr;ft ofthis LE)ase:
Exhi bit A: ...L.e-B.s~1=J~mi s e s
Exhibit B:
Exhibit C:
The undersil:,'(,ed Lessee acknowledges that he or she has thoroughly read and approved each of the provisions contained in this Off,,)(,
andagAe~," s and conditions specified. ",' p
Lessee ,,~~~-d~ _ Date~/~t Lessee L~ Date /'J/Z:;/6~~"'
/~ ( , -y-,
Recei~: for Mp'osit acknowledged bY Date
[
ACCEPTANCE
The undersigned LessQr accepts the foregoing Offer and agrei3s to lease the premises on the terms and conditions set fo.1:h above,
!'\""'~T''''''''' T" -I' t "'" r;' --''' ! """h' " b 'b" ,"."
!'~:;~[_:=-~m(Hmt '?,l' ..~te Ch re;;l! e~ate comm!s~!On$!s not iDee\..! by aw. ,ey a~e $~C!1 ro"e, mmV!(lU-
a~iv and may i:l-e--l't,a;"fiat:i-a~etvifee~--C\l'irner"-GUabroker.. --------______ _____
-~'--~- ------ ~
,-2:he Less.ora~mes!~pay..~, ,-,'..', ~----------------""" _.. ~==-~~ B.rokerin th1stra-l1'<~~'):1:
tile sum of"'"$: ....J~ervlce~ rendered a,n? auth?flZro'l~er to deduct s~lCf",((um fxPrrlfh~ depOSit r~c~..fr.~..e,~s~~_'("
In th~. even,t ~~S8 IS ex.t~nQed for, a ~:li3~11l1~,r;J.0~r time or on a mont:~~lth baSIS afle.r eXP..lf?tlOn of tlJ~-?lg~-lal ttli:~-"
Lessor wl1Lp'~~-Ltif:l.P.al.c.onl1:n~l1...o:( %..of..the..to:tal...r.e:;p.tal wrthe extended penod.l hli?.CGrrfffiTsslOn wdl be UU8
~~..r.:~ at the co mlTlencement-0.~tend~period if for a fix~"~"T1, or if on C1 lT1onth..to-ru.."n~sis, at the temlinatiorl cr
Lessee s occupancy or- one year;)~(.h-it5"heve, ie, earlier. ~'
in any action for cOi"illT1issioll, the preNa1!ing part~!,will be entitled to reasonable attorney fees.
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L.essor ..JLfI~_0/LA~~__.. Date __L..!-.! ~~~L,",- Lessor __ Date
Le,3sec acknowiedges reseipt of a copy of the accepted Lease on (date) _",
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(initialS)
CAUTION; The Gopyright i;,~v/:? of the Uniterf Stales forbid the Ufl3l:thnrized reproducUoH (J this ferm hy nny means including
sccHining or compUlerlZ0OJ. iormats. '
~JaL~,:; 3 of 3
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BERKELEY lAND COMPANY, INC.
September 13, 2005
Manzullo & Associates
5739 Opus Dr.
Carmel, IN 46033
Re: FinishmasterlDublin Square/Dublin Ca
"
Dear Ms. Manzullo:
This is to infonn you that Berkeley Land Co. Inc. is willing to extend the lease with
Finishmaster under the same terms and conditions through December 31, 2007. The rent
shall be $4,700/month Nl\TN for the year 2006 and $5,000/month Nl~ for 2007.
If your client is in agreement please have them sign and date this letter in the space
provided and return to me.
Thp.nk Y Q'r\., .
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J\JI1chael S. Mikulich
Vice President Real Estate
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321 r~arh: /.;.ve., Suite 200 4i DanviHet California 4t, 94526 ~ Phone (925) 552..5.450!) Fax (925) 552-9987
BERKiEl!EY t.A.ND COM~ANYf iNC.
August 20, 2004
Manzallo & Associates
5739 Opus Dr.
Cannel, ll-T 46033
Re: Finishi-nasterlDubHn Souare "
..
Dear MsManzullo:
This is to inform you that we are wining to extend the current lease with Finishmaster
under the same tem1S and conditions through December 31, 2005. The rent for said
extension shall remain the sam.e at $4,700/month plus triple net expenses.
If YOUT client is in agreement please have them sign and date this letter and return to me.
Th~'1k you. for your assistance in this matter.
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Vice Pres.ident Real Estate
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Title:
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ASSIGNMENT OF LEASE
Parties
This Assignment of Lease is made this ~I day of May,
1992/ among MP~Tr~Y'S, INC., a California corporation
("AssignorlO), THOMPSON CAPITAL CORPORATION, a California
corporation, (trAssigneeli), and BERKELEY LAND COMPANY, a
California corporation ("Lessor'l).
Purpose
This Agreement is made with reference to the following
facts:
,,-
A. Assignor is the lessee of the property known as 11.819
DUblin Boulevard, Dublin1 California, consisting of approximately
2,600 net square feet, pursuant to a vlritten lease for a term of
five years commencing April 1, 1990, and expiring March 31, 1995
(lithe Leasell) .
B. Assignor wishes to assign the Lease to Assignee.
C. Lessor is willing to consent to such assig'nment,
provided Assignee pays to Lessor the reasonable attorney's fees
incurred in the preparation of this document.
A.gr~~!!.~:nt
Thereforer it is AGREED AS FOLLOWS:
1. Assigpment of Leas~:
Effective June 1, 1992, Assignor assigns to Assignee
all of its right, title and interest in th.e I.ease0
2. Assu1'f!otion of:-Leasg:
Assignee expressly assumes all of ~~e obligations of
Assignee under the Lease effective JUlle If 19921 an.ti agrees tr.l
perform all obl:lgat,ions of Lessee under thE f :i."pacifically
including the pa:yment of rent, commencing June If 1.992.
3 . Indentrdf ~9a.tj,-Q!L~i2.i,9:Dot::
Assignee agrees to inde~~ify Assi9~or from all
obli.qati.ons u.nder tb.e Lease accruincr on or after Jime l, 1992 ~ in
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J.'lgreement bsd:ween and lissig:nee, d;;;:"c€,::d as c,':;'; l1",pril 2?
1992~
4,
p;,ssigno!J:' ~!hal1 remain liable 'to Lf~ss\\c~r for the
performance of all Lessee's oblicrations un.der the Leas-s unlE'tss
and until Lease is ci::mceled ind by C1. new. lear;:;;c'Z)
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between Lessor and Assignee. In the event that Assignee
exercises the option provided for in Secti.on 3 of the Lease, the
Assignor shall no longer be liable under the Lease.
5. Security Deposit
Assignor currently has on deposit with Lessor a
security d""posit in the amount of Nin€iteen Hundred Fifty Dollars
($1,950) r ~Jhich shall rermain on deposit for the benefit of
l>.ssignee" SimuJtaneouslv with the e~'ecution of this Agreement of
Lease, Assignee shall pay to IJessor the StlJD. of Two Hundred
Dollars ($200) for attorney's fees incurred by Lessor in the
preparation of this Agreement.
"
6. Consent to Assignment:
Lessor consents to the assignment on all the terms set
forth herein. This consent is not a consent to any su~sequent
assigmuent of the Lease.
7 " j\.ttorney' s r:E:~s:
In th€',; l:went liti.cret:ion ever commenced to enforce
any of the terms of this Ag~eementf the prevailing party shall be
enti tled to recover from the non-preva.iling party a reasonable
at~orney s fear plus all costs of suit.
8 ~ Suc~~!.~s:
This igr~ent of Lease shall be binding upon the
heirs r successcn:-s." exect:rtcrs and assigns of aJ.l the parties
hereto~
ASSIGNOR:
Dated:
~..ATLEY f. S f INC. F
a california corporation
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W_ll~am A. B~~Sf President
_.___,J',,_, '__ (~_:)'__ ~~!/__ c1' -2,__,__,__.
1'.)8, ~ted -~ _,._~.~_~_~___._ _~"_'____'_
THOMPSON CAPITRJG CORPORATION!
a California corporation
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THE DUBLIN SQUARE LEASE
William A. Biggs
MATLEY'S, INC.
l1819 Dublin Blvd.
Dublin, CA 94566
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RECEIVED F E8 2 E~
INDEX TO LEASE
1.
Parties
Premises
Lease 'I'erm
Rent
Security Deposit
Use and Prohibited Uses
Signs
Business Hours
Parking and Common Areas
Name
Alterations
Maintenance and Repairs
Compliance with Govermnent Regulations, Land
Use Perrni,t f etc
Entry by LESSOR
Damage or Destruction of Premises
Assigment and Subletting
Insolvency or Bankruptcy
Remedies For Breach
Attorney's Fees
Su-render of Lease
Holding Over
Surrender of Premises on Expiraticn of Term
Insurance
Indemnification
Utilities
Taxes
Exclusivity and Other Tenants
Subordination
Transfer or Revers~on
Rules and Regulations
Time is of the Essence
No Joint Venture or Partnership
Notices
Waiver of Breach
Captions
Successors and Ass~gns
Interpretation
Invalidity of Particular Provision
Governing Lav?
Exhibit "An Location of Building in Shopping Center
2.
3.
4.
5.
6.
7.
S.
9.
Page
1
1
1
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3
3
3
4
4
6
6
7
8
8
9
10
II
11
13
13
13
13
13
15
15
15
16
16
17
17
17
18
18
18
18
18
19
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THE DUBLIN SQUARE LEASE
William A. Biggs
MATLEY'S, INC.
IlB19 Dublin Blvd.
Dublin, CA 94566
1. Parties
This lease is made this / frI day of /f;4J;t? I L_, 1990 r by
and between BERKELEY LAND COMPANY, INC., herein called "LESSOR",
and William A. Biggs. herein called "LESSEE".
2. Premises
For and in consideration o~ the covenants and agreements
hereinafter mentioned to be kept and performed by the parties,
the LESSOR hereby leases to LESSEE, and LESSEE leases from LESSOR,
a portion of the building area on real property situated in th~
City of Dublin, County of Alameda, State of California, and more
particularly described as follows:
Approximately 2600 net square feet located at
the Dublin Square Shopping Center. The street
address is 11819 Dublin Blvd., Dublin, CA 94566.
3", Ilease Terrrt
A. Commencement.
I! 19'90.
This lease term shall commence on p~pril
B.
of five
above.
Initial Term. The initial term shall be for a period
(5} years, cOl1U1\encing on the commencement date described
c. Optior!:..:... In addi-tion -to the initial -term, LESSEE shall
hctve one (1) option to e~tend the lease for an additional consecu-
tive term of five (5) years.
D. x:xercise o~_Qpti2.n. In the event LESSEE _desires to
exercise the option, LESSEE shall give to LESSOR written notice
or exercise,; of opJcion at lea.st one hundred eighty (180) days
before the termina.tion or the exis-ting lease term. If the option
is exercised, the lease shall continue upon all of the same terms
and conditions f except for the rent r which shall be as set ror-th
be 10\'1 0
1-
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4 . Ren t
A. Monthly Rent. The initial base monthly rental during
this lease shall be Nineteen Hundred and Fifty Dollars ($1,950.00).
The first month's rent payment shall be due upon execution
of this Lease.
B. Due Date and Late Charges: All rental payments shall
be payable by LESSEE on or be~ore the first (1st) day of each
month, in advance; and delinquent if not received by the LESSOR
by the tenth (10th) day of each month.
In the event that the minimum monthly rent is not received
by LESSOR within ten (lO)"days of its due date, LESSEE agrees to
pay to LESSOR as additional rent a late charge of five percent
(5%) of the rental amount due.
C. CPI Increase. The base monthly rent of Nineteen Hundred
and Fifty bollars ($1;950.00), as establi~hed in 4A, above, shall
be increased (but never decreased) at. the commencement of the
third (3rd) year of the lease term by a percentage equal to the
percentage increase in the San Francisco-Oakland-San Jose Consumer
Price Index (All urban consumers, all items) as maintained by the
United States bepartment of Labor --"the Index"--during the pre-
ceding years at which the rent was at the same fixed rate. All
comparisons will be based upon the Index figures for the commence-
ment of the third (3rd) year, April, 1992, will equal the percentage
increase in the Index from March, 1991, through March, 1992.
However! the cpr increase shall not exceed seven percent (7%) per
annum, or a maximum increase of .twenty one percent (21%) [7% times <.
three (3) years[ at the CPI increase date.
E. Option Period Rent. In the event the LESSEE exercises
the option referred to in 3C, above, to extend the original lease
term for an addit~onal f~ve (5) years, the initial rent at the
commencement of the additional five (5) years shall be adjusted
to the then current market value. However, this adjustment shall
not result in a rental decrease. The rental adjustment shall be
accomplished by the mutual written agreement of the parties, if
possible.
If the parties and their leaal reoresentatives cannot reach
such an agreement within sixty (60) days prior to the corr~encement
of the option period, t.he then current rental marke-t value shall
be determined by the average of three (3) written appraisals
from licensed and experienced real estate appraisers. One such
appraiser shall be selected and paid by each party. The third
apFraiser shall be selec-ted by t.he firs.t two appraisers and paid
one-half (1/2) by each party. .
2
F. CPI Increase During Option Period. The monthly rent at
the commencelIlen.t of the option period, as established in 4Cf above,
s:ball be increased, but not decreased, at the commencement of the
third (3rd) year of the option period by the same procedure as
set forth in Paragraph 40, above.
5.
security Deposit
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At the time of the execution of this Lease, LESSEE shall
deposit with LESSOR the sum of Nineteen Hundred and Fifty Dollars
($1,950.00) f which deposit shall be security for the faithful
performance of all the terms of this Lease. The Deposit shall
be retained by LESSOR without interest and may be applied against
any charges, debts or damages due LESSOR from LESSEE.
"">
6. Use and Prohibited Uses
The leased premises shall be used solely for an automobile
paint supply store.
LESSEE shall not, without the prior written consent of
LESSOR, use or permit said premises, or any part thereof, to be
used for any purpose or purposes other than the purpose or pur-
poses for which the said premises are hereby leased. No use
shall be made or permitted to be made of the said premises, nor
acts done, vlhieh 'flill increase the existing rate of insurance
npon the leased premises, or any part of the leased premises,
lnle88 LESSEE shall pay the difference between normal insurance
rates for similar businesses and such increased rate; v;rhich
additional costs shall be deemed rent herein and paid to LESSOR
on demand. Nor shall LES3EE cause a cancellation of any insurance
policy coveting the leased premises or any part of the leased
premises, nor shall LESSEE keep, use or sell, or permit at be
kept, used or soldr in or about the premises, any articles wbich
may be prohibited by the standard form of fire insurance policies
with extended coverage. LESSEE shall, at its sole cost and
expensep comply with any and all requirements pertaining to said
premis,es f of cWY insurance organizati.on or company necessary for
the mai.ntenance of reasonable fire and public liability insurance,
covering any part of the leased premises.
LESSEE shal.l HO.t COlTilllit: p or suffer to be committed r any
wast~ upon the premises or any nuisance, or other act or thing
vlhich may damage th~ leased premises or disturb the qu.iet enjoy-
ment of owners or tenants of adjoining parcels of real property.
7. j?igns
During the second quarter of 1990, a new exterior sign shall
be installed at the LESSORfS expense~ The "LESSEE and City of Dubli~
811011 c<ppr")',re sarrh~ b0:~fore conEt~J:.uc,tion. c'r t:.rle Sigllw
..:..
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8. Business Hours
LESSEE shall continuously, during the entire lease term and
any renewal thereof, conduct and carryon LESSEEt s business in
the leased premises and shall keep the premises open for business
and cause. such business to be conduct.ed thereon during each and
every business day for such number of hours each day as is
customary for busirlesses of like character being conducted in the
area in which the leased premises are located; provided, however,
that this provision shall not apply if the leased premises shall
be closed and the business of LESSEE therein shall be temporarily
shut down on account of strikes, lockouts or causes beyond
control of LESSEE.
9. Park; nq and Common" Areas
A. Definitions
The term II Shopping CenterH means the entire area wi t.hin the
outer property limit shown on the plot plan attached hereto and
marked Exhibit HBu and all other pieces or parcels of land at any
time or from time to time designated by LESSOR for use as part of
the Shopping Center. Any additional property designated by
LESSOR for use as part of the Shopping Center shall be included
until such designation shall be revoked by LESSOR. Any portion
of the Shopping Center that may be taken by eminent domain,
privat.e purchase in 1 ieu of eminent domain p or dedicated for
public use, upon such taking, purchase or dedication, shall be
excluded. The ten!!. "accommodationareasf1 means all areas and
facilities outside the premises that are provided and designated
by- LESSOR for general use and convenience of LESSEE and other"
LESSEES of all or any part of the Shopping Center and their
respective employees. customers, and invitees & Accommodation
areas inclUde, but are not limited to, parking areas, pedestrian
sidewalks and landscaped areas. The site plan of the Shopping
Center is attached hereto as EY.hibit nB!~, and the LESSOR reser-res
the right from time to time to make changes in the shape, size,.
location, number and extent of improvements..' buildings...
accommodation areas.. parking layout or areas! and other
improvements and to eli.minate or add any' improvenlents or
buildings to any portion of the Shopping Center; provided,
hOv.!ever, LESSOR shall comply w'ith Sub-paragraph Bf below8 Ouring
the term of this Lease, LESSOR shall operate! manage, and
:malntain all parking areas, :r:oad and acco:mrnodation areas within
the Shopping Center. The manner in \vhich su.ch areas and
facilities shall. he main.tained. and the expenditure for
mai.ntenancer shall be at 'eha sole discretion of r~ESSORG provided
that LESSOR is obligat:.ed to reasonably maintain t;he areas and.
facilities for the benefit of the Shopping Center.
4:
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LESSOR shall manaqe the .accommodation areas at direct cost
to LESSOR. LESSOR shall use good faith efforts to economize on
costs, consistent with good business practices. The use of such
areas and facilities shall be sub;ect, to such reasonable
regulations and changes as LESSOR shaitmake from time to time.
LESSOR hereby grants to LESSEE, during the term of this Lease,
the right to uset for the benefit of LESSEE and LESSEE's
employees v agents f customers and invitees in common with other
tenants of the Shopping center, their employees, agents,
customers and invitees, all common areas, including the
accommodation areas, the parking areas, and road! subject to any
rights, powers and privileges reserved to LESSOR. No parking
fees shall be est.ablished and no meters shall be used.
B. Parkins.L 2\rea
Within the limits of the Shopping Centerl LESSOR shall have
hard surfaced, markedl properly drained; adequately lighted and
landscaped parking area or areaS f together with the necessary
access thereto. LESSOR reserves the right to change the parking
areas and parking layout from time to time. The parties
an'ticipatethat t.he arE,a ",Till be devoted principally to parking f
'\'lith rSZtsonable provisions for landscaping I access and other
accoIT@odation areas.
c. ~esseers Parkina
L:f~:-:)EE and its officers! agents and employees ,,;hal1 park
" . l' , "'" ' , ~ ~ ' 'd f .L."
t:nelr cars on_y In areas speCl:cl.Ca.LJ,Y C1.esl.gna"Ce 'or Ll.ai: purpose
by LESSOR from tin,s to -time. Within five (5) days after request
by LESSOR, LESSEE shall furnish i:o Ll'!;SSOR the automobile license
numbers assiqned to its. cars and the cars or all its officers,
agents and e'mployees. LESSEE shall not at any time par};: or
permit the park:ing of .l:'C.S trucks vehicles or the trucks or
vehicles of others, adjacent to loading areas so as to interfere
in any way with the use of such. a.resp. nor shall LESSEE Cl.t any
time parle or pern1i t the parking of :1. ts trucks or t:ha truc};:s of
its suppl or ot:her8 f in any portion of the parking not:
desia-rmted by J....ESSOR for suc;h use by I..ESSEEe This pclragraph
'rer1"1"~'~''''''<:( a "'{, ~ap.nt ef''''ort '~n FC'rl"'r~ ';;-.l'.t"l., 't..,"? I.'r:;\<:'r'EE.. ann 1'". '''''',f- ;1'1
"..... ':1.~~.)....-"" U-_~,.,t..."""'.,,;""".l!. __.L.. ...La ";j.",.....)U .t_C4 ,J>J~ ;";'.1 .t.C!i:)w. i ,~ .1>,;1' J../-.....,....... ............1.
2bsolut8 dutYe
D. Lessee I s Share of par}:;incr tx Common )\rea Expens!?,
In addition rerit.. and without deduction
therefor from ".:118 rent, LESSEE shall, during the term. of
lease F share of par:idng are? maintenance costs
accom:.rnoda:tion area :maintenance. proportion t.hat
rentablt:; :clclc~r Ztl:"ea r;ea,rs, to tIle'
a}
t l?>
during the term. of this lease on acqount of its share of the:
parking maintenance costs for each calendar year, or portIon
thereof during the term of this Lease.. IUParking area. maintenance
costii shall include all costs and expenses of operating and
maIntaining the parking and common areas, in such manner as
LESSOR may from time to time deem appropriate and for the best
interests of the tenants of the Shopping Center, including
without limitation, labor, compensation insurance; payroll taxes,
materials, supplies, and liability insurance, and all other costs
of operating" repairing, lighting.. cleaning.. painting, remark~"nq
and maintaining drainagel landscaping, and directional and other
signs Hi th respect to the use of such areas. LESSEE f so initial
common area maintenance charge shall be Sixty Dollars
($60.00) per month, which shall not increase for at least three
years.
IO ~ Name
LESSEE covenants that from and after the expiration or
earlier termination of this Lease, it shall not operate under or
use any name which shall include the name of the Shopping Center
or the buildingo The provisions of this paragraph shall apply to
any person.. firm or corporation which controls or is controlled
by LESSEE.
11. Al terat {ons
1"-. Limi tation
LESSEE shall not make or suffer to be made any alterations
.' of the premises or any part 'chereof I at a cost in excess. of,
':'$2! 000.00 I v1i thout the written' consent of LESSOR first had and
obtained, and any additions to or alterations of "the said
premises; except movable furniture and trade fixtures, shall
become a part of the realty and belong to the LESSOR at the
expiration of this Lease. or earlier' vacancy of the leased
premises by I~SSEE8
B~ No Me9hanic's Liens
f....ESSEE shall keep the lea.sed premises and property in which
the leased premises are situatede free from. any liens for war]:::.
performed, materials furnished or obligations incurred by LESSEE~
In the event LESSEE shall fail to do SOl LESSOR may (but is in no
way obligated to) pay any claims, for any laboro services:
materials t! supplies or eCf..1ipmentallege,d to have been furnished
to or for )~ESSEED pa:>rrnent for i.'lhich may be secured by l'iJ.echanic~n
or ma"terialmen W s liens against. the premises or LESSOR" s interest;
therein. Notwithstanding the foregoing. however[ I~SSEE
have the :;::."ight to contest,. the validity of any sucb, claim.
3-^-,ESSEE so elects '1:0 contest:. any clain1! LESSOR shall not, pay
claimant LESSEE furnishes such. secmcit:'Jt as T..1ESSOR in
6
,_0
Cc
discretion may require t:o protect LESSOR's interest. LESSEE
agrees to execute and file a notice of completion as provided in
Section 1193.1(f} of the California Code of civil Procedure
wi thin ten (10) days after the cornpleotion' of any contract for any
work of improvement. LESSEE agrees to pay the fees and other
charges of completione In the event LESSOR elects to pay any
such claim! LESSEE shall reimburse LESSOR -vrithin ten (10) days of
demand therefor. In the event LESSEE fails to reimburse LESSOR
within ten (10) days, the lease shall be deemed in default in the
same fashion as if LESSEE had not pa.id rent due in that sum.
12. Maintenance and Renairs
lL LESSEE IS Direc_t Ma i ntenance and ReDai:r:!2.
LESSEE shall. at its own cost f keep, repair F replace and
:maintain the leased premises and every part thereof, (excluding
the foundation, roof and e)cterior v!alls which LESSOR agrees to
repair and maintain); including glazing of stor~ front, heating,
air candi tioning (once installed by' LESSOR as provided in
Paragraph 6), electrical, plumbing, ventilating, fire sprinkling
system, if any, and fire extinguishers, and the interior of the
premises, in good and sanitary orderl condition and repair~
LESSEE hereby \1aives all right to make repairs of-any J<;.ind at the
expense of LESSOR; as provided in section 1942 of the California
civil Code and all rights provided for by section 1941 of said
Code. In the Bvent LESSEE shall fail to keep said premises in
good sanitary order f condition and repair, LESSOR may! after
giving LESSEE ten (10) days\ writt.en notice demanding t.hat LESSEE
comply \'lith. the requirements of this paragraph,:make or cause to
be :made such repairs or other ",lOr];: as necessary t.o restore the'
premises to good and sanitary order; condition and repair. Any
e:Kpense incurred by LESSOR ill the exercise of its option shall be
paid by LESSEE immediately upon demand therefor by LESSOR.
B. LESSEE:' s Reimht,l:r-'sement of LESSOR! s ReDair Expenses
The ::E'oUt"1datiol1! roof and exterior walls of the building
in which the leas8d premises are locat shall be repaired and
maint:ainE!d h::{ LESSOR at LESSOR W s dir.ect e:iLpense.
LESSEE shall rairoburse LESSOH for such repair exp,3Dses of
LESSOR on the same prorata. bas as described in the paragraph
entitl;2d nparking and Common l'.reasl> I' LESSOR shall also
repair and m"d.ntain the painting! 1.uubing and
e1::;,ctrical <:TI1S -cn:, cammon arsoa,,; and building exterior. 2:,,,s
to .'chese, laE;:t merrt.ionecl i :LES,SEf~ s!lal1 reimb1J.rse LESSOf~ on
the next billing period :Eollm'lin~r t.he receipt of a
therefor for LESSEE ~ s prorata shar:?\~
7
,1 j
tl;:J
13. compliance with Government Requlations, Land Use Permit, ete
LESSEE shallg at its sole cas'\::. and expense, complyv.rill all
of the municipal! county, state, federal, and other governmental
or quasi-governmental authorities now in forcel or which may
hereafter be in force, pertaining to' the leased premises I and
shall faithfully obse.rve in the use and occupancy of the premises
all municipal and county ordinances and regulations, state and
federal statutes and regulations and rules and regulations of any
other governmental or quasi-governmental authority now in force
or which may hereinafter be in force. The judgment of any court
of competent jurisdiction, the decision of any arbitrator or the
admission of LESSEE in an action or proceeding against LESSEE,
whether LESSOR be a party thereto or not, that LESSEE has
violated occupancy of the premises, shall be conclusive of that
fact as between LESSOR and LESSEE. Notwithstanding anything to
the contrary in the foregoing, LESSEE may contest the validity of
any such ordinanceg statutes rule or regulation or the
applicability thereto to LESSEE, as LESSOR shall in LESSOR's
contest (including any appeals for any intermediary court, boards
or authorities) shall prove unsuccessful, LESSEE shall forthwith
comply with said ordinance, statute! rule or regulation.
14. Entry bv LESSOR
LESSEE sliall permit LESSOR and its agents to enter into and
upon said premises at all reasonable times for the purposes of
inspecting the same or for the purpose of making alterations or
additions to any portion of the leased premises! including the
erection and maintenance of such scaffolding I canopies l fences
and props as may be required or. for the purpose of posting"
notfces of non-liability for alterations, additions or repairs or
for the purpose of placing upon the leased premises any usual or
ordinary IiFor Salen signs, or for the pm...-pose of exercising its
option as hereinabove provided for making repairs to the leased
premises which are the responsibility of LESSEE and which LESSEE
fai.ls to make" or for the purpose of exhibiting the premises to
any prospective purchaser or mortgagee of the leased premises or
any portion thereof or for the purpose of exercising any right or
option berein granted LESSOR, without any rebate of J::'ent and
wit.:l"wut any liability to the LESSEE for any loss of occupation or
qttie'c enj o}l11lent of tbe preIr.ises thereby occasioned. LESSEE shall
permit LESSOR, at any time within ninety (90) days prior to the
e)~iration of the tentt, to place upon said premises any usual or
ordinary liTo Let!! or rlTo Leasel~ signs and to permit the entJ:.Y
during said period of LESSOR for the purpose of exhibi'ting the
l?remis.es t'? any pro~pec:tive tenant. Such entry- shall not'
lnterfere vn.."Ch normal lJUSl.ness operations.
8
15. Damage or Destruction or Premises'
A. In the event of a partial destruction of the. premises
during the lease term resulting from any of, the causes insured
against by the California Standard FOr1U fire insurance policy
with extended coverage endorsemerit, which said partial
destruction does. not render the leased premises untenantable,
LESSOR shall repair or otherwise restore said premises as
speedily as possible, provided, however, that in such repair or
restoration, LESSOR shall not be obligated to incur any expense
in excess of the insurance proceeds payable as a result of said
partial destruction. Such partial destruction shall in no vlaY
annular void this Lease, except that LESSEE shall be entitled to
a proportionate reduction of rent while such repairs or
restorations are being made, such propor~ionate reduction 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
leased premises. If such partial destruction shall cause the
premises to become untenantable, or in the event of a total
destruction of the premises f or if the partial destruction shall
result form a cau.se not insured against as aforementioned, or if
the insurance proceeds payable do not adequately provide funds
for repair or restoration, the LESSOR shall give written notiCe:
to the LESSEE within ninety (90) days after the occurrence of
such destruction or LESSORls election either:
(l) To repair the premises r us :Lng any available insurance
proceeds and supplying additional funds; or,
(2) To, terminate this Lease, receiving and
re.ta.ining' all insurance proceeds free of any
claim by J""ESSEE, as a result:. of or arising
out of such termination.
B. In the event. 'CDe LESSOR is obligated or elects to
repair or restore damage to the leased premises, such repair or
restoration shall encompass only that portion of the leased
p!emises iI/h,ich was original~y cons'trt:cte~ ,or added by ~E~SOR and
shall not ~nvolve the repa1.r or res"t.ora'\:.lon of any f1.x'\:ures or
al terations inst.alled by LESS1::'J'S.. unless those fixtures or
altE~ratio:t'1s' are pEort of the realty and belong to LESSOR and are
covered by LESSOR's insurance pelicy.
C0 For the purpose of this paragraph, the leased premises
shall be deemed untenantable in the event more than .thirty
percent PO:;'.:) of total square footage of tb.(;t, improve:ment:.s.
e:t'c-'!cted upon 'l:hc~ leased premises are dest.royed unless LESSEE
IIESS(rF~ a~;rree otJ1er,~,ise i:tl 1rlritjpng $
9
D. In repairing or restoring the leased premises; LESSOR
shall not be liable for any delays resulting from strikes, OI:'
other labor disputes, acts of the elements or other causes
outside LESSOR's control.
E. LESSOR ag:;ees that LESSOR \'lill obtain; pay the premiums
on and maintain. ~n force a California standard form fire
insurance policy with extended coverage endorsementr insuring the
leased premises for an amount at least e0"a1 to the re~~irements
of the holder of any first mortgage on the leased premises. "
F. In the event of any dispute beb'leen LESSOR and LESSEE
relative to the provisions of this paragraph, they shall each
select an arbitrator, and the two arbitrators thus selected shall
select a third arbitratorl and the three arbitrators so selected
shall hear and determine the controversy and their decision
thereon shall be final and binding upon both LESSOR and LESSEE,
who shall bear the cost of such arbitration equally between "lenL,
16. AssicrnTI'ent and Sublettinq
LESSEE shall not voluntarily assign this Lease or any
interest therein and shall not sublet the said premises or any
part thereof, or any right or privilege appurtenant thereto, or'
suffer any other person (customers, suppliers, guests, agents and
serva.nts of LESSEE excepted) to occupy or use the said premises
or any portion thereof, id thout the vlr i tten consent of LESSORf
v.'h1ch consent shall not be unreasonably vrithheld. 1"- consent by
LESSOR to one c:ssignment, subletting, occupation or use by any
other person shall not be deemed to be consent to any slwsequent
assigF.Jnent f suble'cting f occupation or "Use by another person. Any'
such assignment, subletting or occupation or use ,"\>,rithout the
i'rritten consent of LESSOR shall be void! and shall! at, the option
of LESSOR; constitute a breach of this Lease, giving rise to alL
remedies of LESSOR for breach or default set out in this Lease.
This Lease shall not be, nor shall any interest therein be
assignable as the interest of k~SSEE by operation of law without
the writt,8n consent of LESSOR$
Imv ~cransfer or share.s of st,ock in LESSEE, in excess of
twentY-fb7e percent: (25%) of the outstandi.ng shares shall be
deemed an assignment:, recll1.iring LESSORW s prior written consent..
LESSOR, f S consent shall not. be unreasonably vii thhe.ld. LESSEE
shall pay LESSOR 11 ED reasonable att::..rney! s fees and costs incurred.
in cons:ide.ri.:ng a reCJues.t for conse.nt to assignmen't or subletting.
In t;he eVen't that LESSEE assigns or sublr:ots this Lease ai: a
hi crher renta.l .than the rental forth hereino one-half (1/2)
such increased rental shall be paid to LESSOR.
., n
1..,"
17. Insol veney or Bankruptcy
The appointment of a receiver to take possession of all or
substantially all of the assets of. LESSEE" or a general
as~~gnme~t by the LESSEE for the benefit of creditors, or any
aC"l:J.on taken or suffered by or against LESSEE under any
insolvency .or bankruptcy remedies of LESSOR for breach of this
Lease, glvlng rise to all remedies of LESSOR for bre.ach or
default set out in this lease. For ~ne purpose of this
paragraph, the occurrence of any of the foregoing events to" or
any prohibited action taken by any person or entity guaranteeing
the obligations of LESSEE hereunder shall have the same effect as
if such event occurred to or action Vlere taken by LESSEE.
l8< Remedies For Breach
In the event of any breach of this Lease I or any covenant,
condition or p:::ovision hereof by LESSEE which continues after
LESSOR hasgivE:.n ten (10) days i notice to LESS}~E of such breach
as herein provided, the LESSOR I besides other rights or remedies
it may have,! shall have the rights and remedies s",t forth below.
(If th.a breach concerns maintenance or repair of the premlses,
such main.tenance or repair must be undertaken vlithin thirty PO)
days and proceed to conclusion without unreasonaPtle delay.)
A. LESSOR shall have the immediate right of entry
yd thout prior notice or demand and may remove
all persons and property from premises,
removing such property and storing the same
in a public warehouse or elsevlhere at the
cost of and for ".;.he account of LESSEE.
B. Should LESSOR elect to enter, as herein provided.
or should LESSOR taJ;:e possession pursuant to
t:he legal proceedings or pursuant to <:in:J{
notice provided fo~ by law, LESSOR may
ei tl"ler:
(1) Ter.minate the Le.ase; or
(:2) From time to time \ilit:hout termina:clncr I,ee,se
and '(vithout the necessity of notifying L1l:SSEE of the
factI' relet said premises or part thereof for such
. te:J::"!l1 or terms (v!hich luay bE,J; for a terrll extending
-t:he 1:e:1:'111 of Lec~se) and at: such rental or
and upon such o'cher 'cerms and conditions as I.J1~SSO:R
i:t:.s sCile discr'etion, yaajr ~'li th :righ"t
alterations and renairs to said nrerrises.
'" "', '=, I) ""~ "" Q "'"
SUCrA 1: e.J. shall be lJl1Jll2d,1.at:e1.y
to any
11
~-r
t I
-:.' ~;~
if,""'" .-.'
(a) The costs and expenses (including attorney's
fees and any real estate c01llID.ission) of such reletting and of
such alterations and repairs incurred by LESSOR;
Cb) The amount, if . any, by which the rent
reserved in this lease for the period of such reletting (up to
but not beyond the term of this Lease) exceeds the amount agreed
to be paid as rent for the leased premises for such period of
such reletting;
(c; LESSEE shall: (1) Pay such amounts to
LESSOR immediately upon demand thereofl or (2) at the option of
LESSOR such liability shall be paid as follotvs: Rents received
by LESSOR from such r.?letting shall be applied first, to the
payw,ent of any indebtedness ,ather than the fixed minimum and
percentage rate due hereunder from LESSEE to LESSOR; second, to
the payment of any costs and expenses (including attorney I s fees
and .any real estate. commissions) of such reletting; third, to
payment of fixed minimum percentage. rent due from and unpaid by
LESSEE hereunder. The residue, if any, shall be held by LESSOR
and applied in payment of future installments of fixed minimum
and percentage rent as the same may become due and. payable
hereunderw If LESSEE has been credited with any rent to be
received by such reletting under option (1) and~uch rent shall
not be promptly paid to LESSOR by the neVI tenant; or if such
rentals received from such reletting under option (2) during any
month be less than that to be paid, LESSEE shall ilfu~ediately upon
demand therefor pay any such deficiency to LESSOR.
No such entry or taking possession. of said prGcmises bv'"
LESSOR shall be construed as an election on its part fo tel~inat~
this Lease unless a vlritten notice of such election to terminate
be given to LESSEE or unless the -termination thereof be decreed
by a court of competent jurisdiction. Notwithstanding any such
reletting without termination, LESSOR may at any time thereafter
elect to terminate 'this lease for such. previous breach. Should
LESSOR at anytime terminate. this lease for any breachr in
addi tioD . to other remedies LESSOR may have G LESSOR may recover
from the IiliSSEE all damages LESSOR :may incur by reason of such
breach, including the cost of recovering the premises! reasonable
attorney1s feesf real estate commissions and including worth
at the time of such termination of the excess, if anYr of the
amount of rEmt. and charge.s equivaleirt. to rent rese:rved in the
..tease for the remainder of the stated ten.! ever .the then
reasonable rental. value of the nremises it)!:' the remainder of the
stat.ed. tel.lUj' all of vrhich amount shall be im:mediately due and
payable from IiliSSEE to LESSOR.
Imy ent.ry LESSOR pursuant:. to the provisions of this Lease
shelll be all LESSEE viithout cmy interference and :LESSOR
shall not be: liabl(~ for d.a:mages for a.nv such ent:rv r or be guilt'v
of trespass cr forcible;). or detainer. ~ ~.
12
..
.'
The notice of breach required by this Lease shall be ten
(lO) days if the breach consists of the failure to pay money $ and
thirty (30) days i.f the breach consists of anything other than
the failure to pay money.
19. Attorney's Fees
If either party shall commence an action to enforce any of
the terms 0;:: provisions of this Lease, including actions f;.=:;r
unlawful detainer or an aC1:l0n for declaratory relief ..to
determine or construe this Lease, then the losing party in such
action shall pay to the prevailing party such sums as the court
may determine as just and reasonable as and for attorney1s fees.
20. Surrendpr of Lease.
Voluntary or other surrender of this Lease by LESSEE or
mutual cancellation thereof, shall not Hork a merger, and shall,
at the option of LESSORg terminate all of any existing subleases
or subtenancies, or may I at the op-tion of LESSOR, operate as an
assigm:nent to It of any and all such subleases or subtenancies.
Nothing in this paragraph shall be construed as a consent by
LESSOR to the creation of such sw)lease or tenancies.
21. Holding Over
Any holding over at the expiration of the term of this
Lease, 1irJ.th the consent of the LESSOR! shall be construed to be a
tenancy f:cOTll month-,to-'illonth at a fixed :minimum rental equal to
the last month of t:11e lease term, and shall othen>lise be on the
terms and conditions herein specified.
22. Surrender of PreInlses on Expiration of Term
On. the last day f or sooner termination of the lease term,
LESSEE shall quit and surrender the premises.!' broom-cleanf in
good concH tioD and rep2dr (reasonable wear and tear and dam~g; by'
acts of God excepted), together with all alterations, addltlons
and i:mprovemer:rts which may have peen inn to or on the premisesii'
except :mo\'able furnit.ure and/or unat:tached movable' tra.de fixtures
- .
installed at the e:x:pense of LESSEE ~ specifically, zLl1 buil t~in.
cabinetsg counters, desks and shelves shall remain and become
propert:y of LESSOR@
.2 3 n JrlsUral1QSl
-CarIn
this lease.. LESSE:r~
0i1!l
~ "
"J...~
J_3
1'7
~ t_
Ao ?ublic Liability Insurance
Provide and keep in force for the benefit of LESSOR and.
LESSEE comprehensive general public liability.insurancepolicie.s,
in insurance companies and in form of coverage satisfactory to
LESSOR, protecting LESSOR and LESSEE against any and all
liability. in an amount of $1,000,000.00 per occurrence to LESSOR
and LESSEE for both bodily injury, death or property damage
incurred by reason of LESSEE! 5 operation in, on or about ~he
premises. said policies shall provide for at least thirty (30)
days' written notice to LESSOR prior to cancellation or material
change. The LESSOR shall be named as additional insured on the
policy.
LESSOR reserves the' right to increase the. required amount of
public liability insurance from time to time during this lease if
LESSOR reasonably believes additional coverage is required.
If LESSEE shall fail to carry any such policies, LESSOR. at
its option, may G but shall not be obligated to carry such
policies; and the amounts paid by LESSORr vlith int'erest thereon
at the legal rate from the date of payment, shall become due and
payable by LESSEE, as additional rent, with the next succeeding
installment of rent. Payment by LESSOR of any 'such premiuIDs or
the c2rrying by LESSOR of any such policy shall not be, nor be
deemed to be, a waiver or release of the default of LESSEE with
respect thereto, or the right of LESSOR to institute su:mmary
proceedings and/or take such other action as may be permissible
hereunder as in the case of default in pa:l:ment of net rent.
Bo Fire Tnsurance
I~SSOR agrees to purchase and keep
and e)(tended coverage insurance covering the
determined by LESSOR~s insurance companyVs
shall be fo~ full replacement valu80 .
in full force! fire
leased premises as
appraisers, which
c. certificate of Insurance
p~t the commencement of th.e term of this. Lease, LESSEE
shall. delive:l:" to LESSOR certificates of insurance manifesting
recr-1ired coveragef and at least thirty (30) days prior to the
e)~iration of each such policy or policies, LESSEE shall pay the
premiums for renevlo.l insurance and wi thin silch period shall
deliver to the LESSOR the original- policy or duplicate original
wi.th an endorsement thereon :marked i!paidU and/or duplicate
r'eceipt, or other Inform::lt:ion satisfactory tc;J the. other,
evidencing payment 'chereof" If the original polIcy of any such
insurance sYwll be required to be delivered to the beneficiary
any mortgage or deed of trust to \vhJ..ch this J':'ease is subj Bet, and
subordinate, the duplicate original or certificate of such policy
shall be delivered to LESSOR upon request. LESSEE shall have. the,
rig:bt to maintclin reqLll.re.d insurance under blanket policies.
14
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....
D. Workeris Compensation
with regard to any
carried by LESSEEp the LESSEE
right of subrogation against
assignees or agents) I a.nd such
waiver of subrogation.
Worker's Compensation insurance
agrees that it shall waive the
the LESSOR (or its employees,
insurance shall provide for such
E. Waiver of Subrogation
\vith regard to any insurance required to be carried by
LESSOR and LESSEE pursuant to this Lease, both LESSEE and LESSOR
agree that nei t,her shall have the right of subrogation aga1nst.
the other (or its employees t assignees or agents) F and such
insurance shall provide for such waiver of subrogation.
24. IndemnificatiQrl
LESSEE shall indemnify and hold LESSOR harmless and defend
LESSOR from any and all claims of liability for any injury or
damage to any person or property what.soever incurring" in I on or
about the leased premises or any part thereofp other than claims
of liability arising from the negligence or'Y-!rongdoing of LESSOH
or LESSOR's agent.
25" lIt:LU,~ies
LESSEE shall pay directly for '\vater I gas! electricit:y and
telephone services and all ot:b.er ut.ilities supplied to -thE:~ leased
prmnises. lESSEE shall also pay for:' 'ehe removal of all;rarbage
from the leased premises.
26. .'J'axe2.
"P-. Personal Property T.a)I~-E.
LESSEE shall po.y before delinquency any and all taxesJ
aSSBE;sments F license fees; and puJ::'lic charges levied, assessed or
imposed and whicll become pavable durincr the lease teJ.:111
LESSEE IS fixtures f furnitur~ appl ianc~s If personal property
installed o):~ located on the premis';s. - .
E." Rea1Jrop-e~:laxes--'-Lessee I s prored::a Sha:r:~
I-lEISSO}:. as a
piq before delinquency any and
. reo.l.property ~caxes! inc1.u~ing specia.l
aga:mst tne leased premlses ana. the
. t:he~ leased px:emises are situated.
loca~ or munlclpal assessed on
uding ?nd income taxes
t:. C}f IJ~BSOI( g s.
LESSOR s:ball
municipal, county or
assessments, assess
of. land: upon Fhir::h.
sb.all so, pay
()r rerrt:.al lnco:m.e
15
LESSEE shall, during the term of this Lease, pay its
prorata share of all such real property taxes for the Shopping
Center where the leased premises are located in the proportion
to the rentable floor area that LESSEEfs premises bears to the
total rentable floor area of all buildings from time to time
completed in the Shopping Center, whether or not leased. LESSEE
shall pay to LESSOR within fifteen (IS) days after LESSOR submits
a bill therefor, LESSEE's share of such real property taxes.
LESSOR shall submit to LESSEE a true copy of each current tax
bill, and a statement showing the total square feet of all rentable
buildings in the parcel represented by that tax bilL
27. Exclusivity and Other Tenants
.<,
LESSOR agrees that during the time this Lease is in force,
LESSOR will not lease other premises in Dublin Square solely as
an automobile supply paint store.
28. Subordination
LESSEE agrees that this Lease shall be subordinate to any
mortgages or trust deeds that may hereafter be placed upon the
premises, to any and all advances made or to be made under them,
to the interest and all obligations secured by them and to all
renewals, replacements and extensions of them. Provided, however,
the mortgagee or beneficiary named in any such mortgage or trust
deed shall recognize the Lease of LESSEE in the event of fore-
closure, if LESSEE is not in default under the terms of this
Lease. If any mortgagee or beneficiary elects to have this Lease
superior to its mortgage or deed of trust and gives -notice of its
election to LESSEE; then this Lease shall be superior to the
lien of any such mortgage or deed of trust, whether this lease
is dated or recorded before or after the mortgage or trust deed.
LESSEE shall, at any time and from time to time, upon not
less than ten (10) days' prior request by LESSOR, execute,
acknowledge and deliver to LESSOR a sta"cment certifying that
this Lease is unmodi.fied and in full force and effect (or if
there have been modifications, that the same is in full force and
effect as modified and stating the modifications) and the dates
to which the fixed rent and other charges have been paid in
advance, l-t being intended any such statement delivered pursuant
to this subparagraph may be relied upon by any prospective
purcl1ase:r: or encumbrancer (including assignees o:E either; of
the Shopping Center.
.., r
.to
I-r-
I 1':/
29. Transferor Reversio~
In the event of a sale or conveyance or other transfer by
LESSOR of LESSOR I S interest in the leased premises, the same
shall operate to releas LESSOR from any future liability, herein
contained in favor of LESSEE I and in such event LESSEE agrees to
loot:: solely to the responsibility of the successor in interest of
the LESSOR in and to this Lease. If any security be given by
LESSEE to secure .the faithful performance of all or any of i;:he.
covenants of this Lease on the part of LESSEE, LESSOR may
transfer andj/or deliver the security as such, to the purchaser of
the reversion" in the event that the reversion be sold, and
thereupon LESSOR shall be discharged from any further liability
v1i th reference thereto.
30. Rules and Rec~lations
LESSOR reserves the right to issue such reasonable l-ules and
regulationsj relating to the use and occupancy of the leased
premises and the access f parking and co:nrmon areas of the Shopping
Center as LESSOR may deem appropriate for the best intE'orest of
the LESSEE and other tenants in the building. Such rl1.les and
regu.lations may include, with limitation:
A. 'I'he right to closer if necessary r all or any portion of
the con~on area, sidewalks; roadsf access roads, malls and other
facilities to such extent as may p in the opinion of LESSOR, be:
legally sufficient to prevenJc dedication thereof or the accrual
of any :t"ights of any person or of the publi.c therein and no such
closing shall be deemed an eviction of LESSEE nor shal.l any.,
:r:ebate or diminution of rent resul.t from such closing;
B. The right to control time for loading and unloading of
merchandise-and the placement and times of disposition of
garbage, trash and debris;
c. The right too designate employee parking areas. LESSEE
shall abide by Sl1C.tl rules and cooperate in the observance
thereof. Such rules and regulat.:Lons shall be binding upon LESSEE:
upon de.livery of a COp~l tbereof to. the LESSEE. . 'rhe :t-ules
:re:;rulations may be amended by the L.ESSOR from time to time 'Vl'J
or without advance noticel and all amend:men'ts shall be ef:fect~7e
upon delive::cy a copy of them to the I..ESSEEq li~ll rules
promulga pursuant this paragraph shall be. approved
LESSEE before taking effect.
31.
of the
of
and each
1.7
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t f
32. No Joint Venture or Partnership
Nothing herein shall be construed as, nor shall this Lease
creat~ a joint venture or partnership by and between LESSOR and
LESSEE.
33. Notices
All notices, statements, demands, request, consents, approvals,
authorizations, offers, agreement, appointment or designations
under this Lease by either party to the other shall
be in writing and shall be deemed duly given and served upon the
other party if delivered personally to the recipient, upon such
delivery, and if sent by mail, upon deposit in the mails, postage
prepaid and addressed as follows:
To the LESSOR:
BERKELEY LAND COMPANY, INC.
l2l1 Newell ll.ve., suite 120
Walnut Creek,CA 94596
'I'o the LESSEE:
William A. Biggs
L>1.lvrLEY 1 s, INC.
11819 Dublin Blvd.
Dublin, CA 94566
34. Waiver of Breach
No waiver of any condition or covenant of this Lease or of
the breach of any condition or covenant shall be taken to constitute
a waiver of any subsequent breach of such condition or covenant,
or to justify or authorize the non-observance on any other occasion
of the same or any other condition or covenant hereof, nor shall
the acceptance of rent by the LESSOR at any time hereof be construed
as a waiver of such default or of the LESSOR's right to terminate
this Lease on account of such default, nor shall any waiver or
indulgence granted by the LESSOR be taken as an estoppel against
the LESSOR.
35. C~tions
The paragraph and subparagraph captions of this Lease are
for convenience only and are not a part of this Lease and do not
in any way limit or amplify the terms of provisions of this
Lea.se.
36. ~su~c?ssors and Assis-ns.
This instrument shall be binding upon and sball inure to the
benefit of the respective parties, their successors, assigns,
legal represent.a.tives". providedthci.t t.bis clause shall not permit
any aEsignment cont.rar:y t~o the provisions prohibiting assignment
18
l.-r
1 ~
37. Interpretation
The language in all parts of this lease shall in all cases
be construed as a whole and simply according to its fair meaning
and not strictly for nor against the LESSOR or the LESSEE, and
the construction of this lease and any of its various provisions
shall be unaffected by any claim, whether or not justified, that
it has been prepared wholly or in substantial part by or on behalf
of the LESSOR.
38. Invalidity of Particular provision
If any term or provisioll of this Lease or the applicability
thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, "then the remainder of this Leasep or
the application of such term or provision >co persons other than
those as.to Which it is held invalid or unenforceable shall not
be affected thereby and each term and provision of this Lease
shall be valid and be enforced to the full extent permitted by
la\v.
39. g,overninq Law
This Lease shall be interpreted and construed according to,
and the conduct of the parties hereunder shall be governed by,
the laws of the State of California.
LESSOR:
LESSEE:
BEP~ELEY LAND COMPANY, INC.
By:
(-c:.~. r j;; ",/ (
Cf( 7- .--:J ~;Jt~ .
~~~r-'j "',,' ""'."""""__
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L ( P'
In-n 4J{jAtlq.~
William A. B~4g1s
Its:
19
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lib
DUBLIN SQUARE LEASE
THOMPSON PBE. INC.
A Delaware Corporation
11815 Dublin Blvd.
Dublin. CA 94566
1. Parties
This lease is made this 12th day of September. 1997. by and
between BERKELEY LAND CO.. INC.. herein called "LESSOR". and
THOt.1PSON PBE. INC.. A Delaware Corporation. herei.n called "LESSEE".
2. Premises
For and in consideration of the covenants and agreements
hereinafter mentioned to be kept and performed by the parties. the
LESSOR hereby leases to LESSEE. and LESSEE leases from LESSOR. a
portion of the building area on real property situated in the City
of Dublin. County of Alameda. State of California. and more
particularly described as follows:
Approximately 1470 net souare feet located at
the Dublin SQUcire. The street address is
11815 Dublin Blvd.. Dublin. California ("the
leased premises")
3 . L~M~ T~,J!l
A.
1. 1997'.
C OlIlU<.fill.s:i...em e rLt. .
This lease term shall commence on October
B. tni..:tL."JJ. Ter:m.. The intial term shall be for a period of
thirt.\1 (30) months. commencing on the commencement date described
a bo',,-e.
4 . Rs..n.t.
One
A . l:t2U.:t,bJ.Y.......R~.~llt_ .
1housand and Twenty
The initial base monthly
Nine Dollars ($1.029.00>.
rent shall be
The first month's rent payment shall be due uPon execution of
this Lease.
1
B. Ilue Date ~nd IJate Cba.r....~_6..
payable by LESSEE on or before the
in advance. and delinquent if not
tenth (10th) day of each month.
All rental Payments shall be
first (1st) day of each month,
received by the LESSOR by the
In the event that the minimum monthly rent is not recehred by
LESSOR Hithinten CI0) dars of its due date, LESSEE agrees to pay
to LESSOR as additional rent a late charge of five percent (5%) of
the rental amount due.
5. I1L?e and Pr9hibj,:t.ilii~)3
The leased premises shall be used solely for an automobile
paint supply store.
LESSEE shall not. Without the prior written consent of LESSOR.
use or permit said premises. or any part thereof. to be used for
any purpose or purposes other than the purpose or purposes for
1'1hL'h the said premises are hereby leased. No use shall be made or
permitted to be made of the said premises. nor acts done. which
Hill increase the existing rate of insurance upon the leased
premises, or any part of the leased premises. unless LESSEE shall
pay the difference be:tween normal insurance rates for similar
businesses and such increased rate, which additional costs shall be
deemed rent herein and paid to LESSOR on demand. Nor shall LESSEE
cause a cancellation of any insurance policy covering the leased
premises or any part of the leased premises . nor shal.l LESSEE keep,
use or sell, or permit to be kept. used or sold. in or about the
premises. any articles which may be prohibited by the standard form
of fire insurance policies ,,1 th extended coverage. LESSEE she.ll,
at its so cost and expense. comply with any and all requirements
pertaining to s<3.id premises, of any insurance organization or
company necessary the maintenance of reasonable fire and public
liability insurance. covering any part of the leased premises.
LESSEE shall not commit. or suffer to be committed. any waste
upon the premises or any nU.isance. or other act or thing which may
damage the leased premises or disturb the quiet enjoyment of owners
or tenants of adJoing parcels of real property.
6 ~ BJJ...s.jYJJeJI.etJ.{QJl1:Et
shall continuously, during the entire lease term and
any renewal thereof. conduct and carryon LESSEE's business in the
ed BeG and shall the premises open for business and
6 to be conducted thereon during each and every
inese day for such number of hours each day as 1s customary for
businesses of 1 r being conducted in the area in ~hich
the leased p:t'emises are locc"ted: provided. hOv,re'ver, the,t this
provision shall not apply if the leased premises shall be closed
",
L.
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1<6) ~""\,-,,,
t {- iLr ,;~ #1~ #(oj
\. . (Fl' ~,-, ....'~ ;'
U
and the business of LESSEE therein shall be temporarilY shut down
on account of strikes. lockouts or causes beyond control of LESSEE.
7. Parkin~ and Common Areas
A.
n,"" "" oj: , ~.... 4 . .;.. t .; . - ~-
~
The term "Shopping Genter" means the entire area within the
outer property limit shown on the plot plan attached hereto and
marked Exhibit.. A" and all" other pieces or parcels of land at any
time or from time to time designated by LESSOR for use as part of
the Shopping Center. Any additional property designated by LESSOR
for use as part of the Shopping Center shall be included until such
designation shall be revoked by [,ESSOR. Any portion of the
Shopping Center that may be taken by eminent domain. private
purchase in lien of eminent dome.in. or dedicated for public use.
upon such taking. purchase or dedication. shall be excluded. The
term "accommodation areas" means all areas and facilities outside
the premises that are provided and designated by LESSOR for l2.'eneral
use and convenience of LESSEE and other LESSEES of all or any part
of the Shop-pin.e: Center and their respective employees. customers.
and invitees. Accommodation areas include. but are not limited to.
parking a:n~as. pedestrian sidewalks and landscaped areas. The site
plan of the ShOPPing Center is attached hereto as Exhibit "B", and
the LESSOR reserves the right from time to time to make changes in
the shape. size. location. number and ex.tent of improvements.
buildings. accommodation areas. parking layout or areas. and other
improvements and to eliminate or add any improvements or bUildings
to any portion or the Shopping Cen-ter: provided. however. LESSOR
shall comply with Sub-paragraph B. below. During the term of this
Lease. LESSOR shall operate. manage. and maintain all parking
areas. road and accommodation areas within the Shopping Center.
The manner in which such areas and facilities shall be maintained
and the expenditure for maintenance. shall be at the Bole
discretion or LESSOR. provided that LESSOR is obligated to
reasonably maintain the areas and fa.cilities for the benefit of tb,e
ShOPping Center.
LESSOR shall manage the accommodation areas at direct cost to
LESSOR. LESSOR shall use good faith efforts to economize on costs.
consistent with ~ood business practices. The use of such areas
and facilities shall be subiect ~o such reasonable regulations and
chan~eB as LESSOR hereby ~rantB to LESSEE. durin~ the term of this
Lease. the right to use. for the benefit of LESSEE and LESSEE's
erilplovees. ai?ents, customers a.nd inyi tees in common Hi th o-ther
tenants of the Shopping Center. their employees. agents. customers
and invi tees. c; 11 common areas. iI1Cluding the accommodation areas.
tb.e parkinB: a:r'eas. and road, sub.i ect to any riE;:h.ts. pO~Jers and
urivileges resrved to LESSOR. No parking fees shall be established
and no meters shall be used.
")
,,'
,
I
,
\,
B. Pa~kin~ Ar~
Within the limits of the Shopping Center. LESSOR shall have
hard surfaced. marked. properly drained. adequately lighted and
landscaped parking area or area, tog-et.her with the necessary access
thereto. LESSOR reserves the right to change the parking areas and
parking layout from time to time. The parties anticipate that; the
area l"ill be devoted principally to parking, with reasonable
provisions for landscaping, access and other accommodation areas.
b
C. L.e~
LESSEE and its officers. agents and employees shall park their
c,~rs only in areas specifically designated for that purpose by
LESSOR from time to time. Within five (5) days after request by
LESSOR. LESSEE sha.ll furnish to LESSOR the automobile license
numbers assigned ot its cars and the C.3.1"8 of all its officers.
agents and employees. LESSEE shall not at any time park or permit.
the parking of its trucks vehicles or the trucks or vehicles of
others. adjacent to loading areas so as to interfere in any way
with the use of such areas. nor shall LESSEE at any time park or
permit "ete pad:ina of :L.ts trucks or the trucks of its suppliers or
other. in any portion of the parking lot not designated by LESSOR
for such use by LESSEE. This paragraph requires a diligent effort
in good faith by LESSEE. and is not an absolute duty~
D . L.eLcB...e.e.:.'..B_J3.hiU:'f.:L...~a:r k :i n!2: t" C .QIDJJ~lL.~_
During this Lease. the LESSEE shall pay its ororata share of
the common area maintenance costs including an administrative fee
of 10%. Tenants proportionate share shall be a Bum equal to the
product obtained multiplYing the total costs by a fraction. the
numerator of which is the number of square feet in the premises and
he:; denominator of Hhicb. j.s tot 3.1 SQuare feet of rentable
frround floor c.rea. of all clreas in the ShoPPin,g Center.
F'
j ~
t,y !;u~
LESSEE covenants that from and after the expiration or earlier
te cf this Lease. it shall not operate under or use any
1 lude the name of the Shopping Center or the
T)rovisioDe of this paragraph etlall apply to any
7)(:":1:'(3011" f5..l"'Ifl ()I:-- cor"pot'a.tior:t. vitli,c::l1 c{.)n.'tr"ols or is (;cy.ltrollE;cl .~t)y
LE
4
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Lvi:
a
v.
Al.t.erat ion s
A. kimi tp,tiQn
LESSEE shall not make or suffer to be made any alterations of
the premises or any part thereof. at a cost in excess of $1.000.00.
without the written consent of LESSOR first had and obtained. and
any additions to or alterations of the said premises. except
movable furniture and trade fixtures. shall become a part of the
realty and belong to the LESSOR at the expiration of this Lease or
earlier vacancy of the leased premises by LESSEE.
B. No Me.clJan j.c' s Lip.ns
LESSEE shall keep the leased premises and property in which
the leased premises are situated. free from any liens for work
performed. materials furnished or obli~ations incurred by LESSEE.
In the event LESSEE shall fail to do so. LESSOR may (but is in no
way obligated to) pay any claims for any labor. services.
materials. supplies or equipment alle~ed to have been furnished to
or for LESSEE. payment for which may be secured by mechanic's or
materialmen's liens a~ainst the premises or LESSOR's interest
therein. Notwithstandin~ the foregoin~. however. LESSEE shall have
the right to contest the validity of any such claim. If LESSEE so
elects to contest any claim. LESSOR shall not pay said claimant if
LESSEE f1.1rnishes such security as LESSOR in its discretion may
require to protect LESSOR's interest. LESSEE a~rees to execute and
file a notice of completion as provided in Section 1193.1(f) of the
California Code of Civil Procedure within ten (10) days after the
cOIDPletion of any contract for any work of improvement. LESSEE
agrees to pay the fees and other charzes of completion. In the
event LESSOR electe to pay any such claim. LESSEE shall reimburse
LESSOR Hithin ten (10) days of demand therefor. In the event
LESSEE fails to reimburse LESSOR within ten (10) davs. the lease
shall be deemed in default in the same fashion as if LESSEE had not
naid rent due in that sum.
1 0 . UQJ.,Il..t_~li.1...ru"~~oJ.:lSf~I22...i. r f']
A .. LE;,:; [.; EK.:-,~L-I1.iJ::.eJ.-:t3Q~tn:t.e.nanS:~--3...llii_Jiej2~Li.J;::.e,L
LESSEE shc~ll at its Qi.m cost. keep. repair. rE;"i:::lace and
maintain the leased premises and every part thereof. (excluding the
foundation. roof and exterior walls which LESSOR agrees to repair
G;nd ma.intain).. includi.ng glazing of store front. heating. air
conditi.oning. electrical, plumbing:. yentile,ting, fire sprinkling'
S'lstem. If any, cmd fire extin;;.mlshers, and the int;erior of the
5
premises. in good and sanitary order. condition and repair. LESSEE
hereby waives all right to make repairs of any kind at the expense
of LESSOR. as provided in Section 1942 of the California Civil Code
and all rights provided for by Section 1941 of said Code. In the
event LESSEE shall fail to keep said premises in 200d sanitary
order. condition and repair. LESSOR m~Y. after giving LESSEE ~en
(10) days' written notice demanding that LESSEE comply with the
requirements of this paragraph. make or cause to be made Such
repairs or other work as necessary to restore the premises to good
and sanitary order. condition and repair. Any expense incurred by
LESSOR in the exercise of lts option shall be paid by LESSEE
immediately upon demand th~refor by LESSOR.
B. LESSKE's Reimbu.rsement of LESSOR's Repair Kxpense;;
The foundation. roof and exterior walls of the bUilding in
;:tnlch the leased premises are located shall be repah~ed and
maintained by LESSOR at LESSOR"s direct expense.
LESSEE shall reimburse LESSOR for such repair ex'penses of
IJESSOR on the same prorate; basis as described in the paragraph
entitled "Parki.ng and Common Areas". above. LESSOR s1:1all also
repair and ma5.ntain the exterior painting. plumbing and electrical
s':!stems in the common areas ared bu.ilding exterior. As to these
last mentioned items. LESSEE shall reimburse LESSOR on the next
billing period fol1o,.;ring the receipt of a billing therefor foJ.~
LESSEE's proratashare.
11 . Gomp 1 i a,~ H t th.....G"O~,Sin.t~JJ.1l.t..i.o~ U 6..e__ p", r..m j t, F; tD........
LESSEE shall. at its sole cost and expense. comply with all of
the municipal. county. state. federal. and other governmental or
quaSi-governmental authorities now in force. or which may hereafer
be in force. pertaining to the leased premises. and shall
faithfully observe in the use and occupancy of the premises all
municipal and county ordinances and regulations. state and federal
statutes and regulations and rules and regulations of any other
governmental or quaSi-governmental authority now in force or which
may hereinafter be in force. The :iudgment of any court of
.iurisdiction. the decision of any arbitrator or the
c\dm lon of LESSEE in an action or proceeding against LESSEE.
whether LESSOR be a party thereto or not. that LESSEE has violated
occup::mcy of premises. shall be conclusIve of that fact as
LESSOR Notwithstanding anyth~ng to the
. LESSEE may contest the validity of any
snch ord statute. ::u1e or rei Jltltir)n or the applicability
the:';,c'to to , at;; LESSOR 11 i~'1 LEsson' f:: conteGt (including
'cln:i- C,PI"e<:~ls fe" an:\' r'medi\?J:Y court. or atithori tieS'<)
shall prove unsuccessful. LESSEE shall forthwith comply with said
ordi~ance, sta'tu.te. rule or regulation.
6
if:;')
J'.
12. ~rv bv LES~QB
LESSEE shall permit LESSOR and its agents to enter into and
U1;Jon said premises at all reasonable times for the purposes of
inspecting the same or for the purpose of making alterations or
addi tions to any portion of the leased premises. including the
erection and maintenance of such scaffoldin~. canopies. fences and
props as may be required or for the purpose of posting notices of
non-liabili tv for alterations . additions or repairs or for the
purpose of placing u~on the leased premises any usual or ordinary
"For Sale" signs. or for i;;hepur:oose of exercising its option as
hereinabove provided for making repairs to the leased premises
which are the responsibility of LESSEE and which LESSEE fails to
make. or for the purpose of exhibitin~ the premises to any
prospective purchaser or mortgagee of the leased premises or any
portion thereof or for the purpose of exercising any right or
option herein granted LESSOR. 'Id thout any rebate of rent and
w-ithoutany liability to the LESSEE for any loss of occupation or
quiet enjoyment of the premises thereby occasioned. LESSEE shall
permit LESSOR. at any time within ninety (901 days prior to the
expiration of the term. to place upon said premises any usual or
ordinary "To Let;" or "To Lease" signs and to 'Permit the entry
during said period of LESSOR for the purpose of ex.hibi ting the
premises to any prospective tenant. Such entry shall not interfere
with normal business operations.
13. ~~~LP~..&L
A. In the event of a part tal destruction of the premises
during the lease term resulting from any of the causes insured
against bv the California Standard Form fire insurance policy with
extended coverage endorsement. which said partial destruction does
not render the leased premises untenantable. LESSOR shall repair or
otherwise restore said premises as speedily as possible. provided.
however. that in such repair or restoration. LESSOR shall not be
obligated to incur any expense in excess of the insurance proceeds
payable 0.6 a result of said partial destruction. Such pctrtial
destruction shall in no way annul or void this Lease. except that
LESSEE shall be entitled to a proportionate reduction of rent while
such repairs or restorations are being made. such proportionate
reduction to be based upon the ex.tent to which the making of such
repairs shall interfere with the business carried on by the LESSEE
in the leased premises. If t:;ucb. partial destruction shall cause
the premises to become untenantable. or in the event of a total
destruction of the premises. or if the partial destruction shall
result from a cause not insured a~ainst as aforementioned. or if
the insurance proceeds payable do not adequately provide funds for
repair or restoration. the LESSOR shall give written notice to the
LESSEE: -within ninety (DO) days ('?,fter the occurrence of such
1estruction or LESSOR's election either:
'"1'
(
Z,::.~,
(1) To repair the premises. using any available insurance
proceeds and suPPlYing additional funds; or.
(2) To terminate this Lease. receiving and retaining: all
insurance proceeds free of any claim by LESSEE. as a
result of or arising out of such termination.
B. In the event the LESSOR is obligated or elects to repair
or restore damage to the leased premises. such repair or
restoration shall encompass only that portion of the leased
preillises which was originq~ly constructed or added by LESSOR and
shall not involve the repair or rest.oration of any fixtures or
alterations installed by LESSEE unless those fixtures or
ali;erations are 1:Jart of the realty and b,:;lona to LESSOR and are
covered by LESSOR's insurance policy.
C. For the purpose of this paragraoh. the leased premises
shall be deemed untenantable in the event more than thirty percent
(30~;;) of the total square foota,t;e of the improvement.s erected Upon
the leased premises are destroyed unless LESSEE and LESSOR agree
otherwise in writing,
D. In repairinJ2: or restoring the leased premL';es. LESSOR.
shall not be liable for any delays resulting from strikes. or other
labor disputes. acts of the elements or other causes outside
LESSOR's control.
E. LESSOR. agrees that LESSOr( will obtain. pay the premiums
on and maintain inforce a California standard form fire insurance
policy pith extended coverage endorsement. insuring the leased
premises for an amount at least equal to the requirements of the
holder of any first mortgage on th~ leased premises.
F. In the event of any dispute between LESSOR. and LESSEE
rela.tive to the provisions of this paragra1:jh. they shall each
select an arbitrator. and the two arbitrators thus selected shall
sele:ct a third arb! trator. and the three al::,bi trators 60 selected
sh8..1.1 h.ear and determine the controyersy and their decision thereon
shall be final and binding UPon both LESSOR and LESSEE. who shall
bear the cast of such arbitration equally between them.
1.4, .
LESSEE shall not voluntarily assign this Lease or any interest
in and shall not the said premises or any part thereof.
or any right or priv apPurtenant thereto. or r any other
person (cus re. Euppliers~ guest~ agen~6 and servants of
e.i~c'3PtE~d) to oco\..".P-:'1' or Use tb.e said prem1.see:; or an"?' port
tnereof. wi the written consent of LESSOR. which consent shall
not be unreasonably withheld. A consent by LESSOR to one
assignment. 6Llblet::; occupation or use by any other pe:r'son sru:tll
8
L
not be deemed to be consent to any subsequent assignment.
subletting. occupation or use by another person. Any such
assignment. subletting or occupation or use without the written
consent of LESSOR shall be void. and shall. at the option of
LESSOR. constitute a breach of this Lease. giving rise to all
remedies of LESSOR for breach or default set out in this Lease.
This Lease shall not be. nor shall any interest therein be
assignable as the interest of LESSEE by operation of law without
the written consent of LESSOR.
Any transfer or shares of stock by LESSEE in excess of twenty-
five percent (25%) of the outstanding shares shall b3 deemed an
ass ignment. requiring LESSOR' s prior written consent. LESSOR's
consent shall not be unreasonably withheld. LE.SSEE shall pay
LESSOR's reasonable attorney's fees and costs incured in
considering a request for consent to assignment or subletting.
In the event that LESSEE assigns or sublets this Lease at a
higher rental than the rental set forth herein. one-half (1/2) of
such increased rental shall be paid to LESSOR.
15 . Ins 01 ~.ilQ.Y~~..Y.
The appointment of a receiver to take possession of all or
substantially all of the assets of LESSEE. or a general assignment
by the LESSEE for the benefit of creditors. or any action taken or
suffered by or against LESSEE under any insolvency or bcmkruptcy
remedies of LESSOR for breach of this Lease. giving rise to all
remedies of LESSOR for breach or default set out in this Lease.
For the purpose of this paragraph. the occurrence of any of the
foregoing events to or any prohibited action taken by any person or
entity ~uaranteeing the obligations of LESSEE hereunder shall have
the same effect as if such event occurred to or action were taken
by LESSEE.
16. ReJJlf'&i.~~
In the event of any breach of this Lease. or any covenant.
condition or provision hereof by LESSEE which continues after
LESSOR has .g:iven ten (10) days' notice to LESSEE of such breach as
herein provided. the LESSOR. besides other rights or remedies it
may have. shall have the rights and remedies set forth below. (If
the breach concerns maintenance or repair of the premises. such
maintenance or repair must be undertaken within thirty (30) days
and proceed to conclusion without unreasonable delay.
A. LESSOR 8 11 have the immediate right of entry
without 'prior notice or demc,nd and may remove
all persons and property from premises.
removing such property and storing the same in
a public warehouse or elsewhere at the cost-of
and for the account of LES
9
! ""<'i
'-1-" ,
, u'
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B. Should LESSOR elect to enter. as herein
provided. or should LESSOR take possession
pursuant to the legal proceedings or pursuant
to any notice provided for by law. LESSOR may
either:
(1) Terminate the Lease: or
(2) From time to time without terminating
this Lease and without the necessity of
notifYing LESSEE of the fact. relet said
premj.ses or any part thereof for such term or
trms (wh.ich may be for a trm extending beyond
the term of this Lease) and at such rental or
rentals and UPon such other terms and
condi tions as LESSOR in its sole discretion
may deem advisable with the ri,ght to make
alterations and repairs to said premises.
Upon each such reletting. LESSEE shall be
immediately liable to pay the LESSOR in
addition to any indebtednees other than rent
due hereunder:
(a) The costs and expenses (including attorneY's
fees and ~nY real estate commission) of such reletting and of such
alterations and repairs incurred by LESSOR:
(b1 The amount. if any. by ",hich the rent reserved
In this lease for the period of such reletting (up to but not
beyond the term of this Lease) exceeds the amount agreed to be paid
as rent for the leaed premises for such period of such reletting:
(0) LESSEE shall: (1) Pay such amounts to LESSOR
immediately upon demand thereof. or (2) at the option of LESSOR
such liability shall be paid as follows: Rents received by LESSOR
from E;uch reletting' shall be applied first. to the payment of amr
indebtedness. other t the fixed minimum and percentage rate due
hereunder from LESSEE to LESSOR: second. to the payment of any
costs and expenses (including attorney's fees and any real estate
commission.s) of such reletting: third. to payment of fixed minimum
percentage rent due; fl.~om c!.l1d unpaid by LESSEE hei>::::uJl.der. The
residue. if any, shall be held by LESSOR and applied in payment of
future installments of fixed minimum and percentage rent as the
same may become due pa hereunaer~ If LE has been
crecUt,,::d 'filth [,ny j:"Emt rj,'::' recei.ved by 6uch relett 1..1.nder
(1) &nd such rent shall not be promptly to SSOR
the new ten~nt. or if such rentals received such re
u.:nder o"pt (2) dLl'?;,->ir:lg C1.:t1.'.\"t rU:)11t;:h t)~ lese~ tlla~ tb.,at to
LESSEE shall tely ~pon demand therefor pay any 6~cll
cleric
tC) LtESS()R.
10
7: tf.l
No such entry or taking possession of said premises bY' LESSOfl.
shall be construed as an election on its part to terminate this
Lease unless a written notice of such election to terminate be
given to LESSEE or unless the termination thereof be decreed by a
court of competent .iurisdiction . Notwithstanding any such
reletting without termination. LESSOR may at any time thereafter
elect to terminte this Lease for such previous breach. Should
LESSOR at anytime trminate this Lease for any breach. in addition
to other remedies LESSOR may have. LESSOR may recover from the
LESSEE all damages LESSOR may incur by reason of such breach.
including the cost of. recovering the premises. reasonable
attorneY' 6 fees. real estate commiss ions and including the worth at
the time of such termination of the excess, if any. of the amount
of rent and charges equivalent to rent reserved in the lease for
the remainder of the stated term over the then reasonable rental
value of the prem.ises for the rremainder of the stated term.. all of
which amount shall be immediately due and payable from LESSEE to
LESSOR.
Any entry by LESSOR pursuant to the provisions of this Lease
shall be allowed by LESSEE without any interference and LESSOR
shall not be liable for damages for any such entry. or be guilty of
trespass or forcible entry or detainer.
The notice of breach reauired by this Lease shall be ten Cl0)
days if the breach consists of the failure to pay money. and thirty
(30) days if the breach consists of anything other than the failure
to pay money.
17. AttQrn~v"s F~~~
If either party shall commence an action to enforce any of the
terms or provisions of this Lease. including actions for unlawful
detainer or s.n action for declaratory relief to determine or
construe this Lease. then the losing party in such action shall pay
to theprevailin~ party such sums as the court may determine as
just and reasonable as and for attorney"s fees.
18 , S U Y.:J:f'.J:l.dJ:>dLSJ f Ie a ~
Voluntanr or other surrender of this Lea.se by LESSEE or mu-:.ua.l
cancellation thereof. shall not work a merger. and shall. at the
option of LESSOR. terminate all of any existln.G<: subleases or
subtenancies. OJ::' may. at the option of LESSOR. op~;::rate 2l1:: an
aBsi~nment to it of any and all such Bub es or subtenancies.
Nothing in this par,::tgraph shall be constrl1.ed as a consent by LESSOH
to the cre,3.tion of such sublea.se or tenancies.
i '
". J.
I Q-~! {JJ
1 (;) ,.-.."
lJ
19. HQl.d.ing O\t~r..
Any holding over at the expiration of the term of this Lease.
with the consent of the LESSOR. shall be construed to be a tenancy
from month~to-month at a fixed minimum rental equal to the last
month of the lease term, and shall otherwise be on the terms and
conditions herein specified.
20. SU~p.r of Pr~mi.se6 on Expiration of Term
.i~
On the last day, or sooner termination of the lease term,
LESSEE shall qui tand surrender the premises . broom-clean. in u~ood
conditiion and repair (reasonable Hear and tear and d5.mage by aots
of God excepted). together with all 8.1 terations. additions and
improvements 'V:rhich may have been in. to or on the premises, except
movable furniture and/or unattached movable trade fixtures
installed at the expense of LT\:SSEE. Specifically, all built-in
cabinets. counters, desks and shelves shall remain and become the
property of LESSOR.
2 1 . I nE'&r..illLQe..
During the ant
expense. shall:
term of this Lease. LESSEE at its orIn.
A. Pu bJ i G rti.a.b.Jj,j~Y..-1~
Provide and keep in force for the benefit of LESSOR and LESSEE
cOt'mreb.ensiire general public J ili tv insurance policies. in
insurance companies and in form of coverage satis factory to I!ESSOR,
protecting LESSOR and LESSEE against any and al11iabilit:r. in an
amount of $1.000,QOO.00 per occurrence to LESSOR and LESSEE for
both bodily in.iur;r, death or property damage incurred by reEuson of
LESSEE's opera.tion in, on or about the premises. Said policies
shall pl."OVide for .::l.t lea.st thirty (30) de,ys ' written notice to
LESSOR prior to cancellation or material change. The LESSOR shall
be named as additional insured on the policy.
r'eser"\lf.=:S th_e~
'public liab itv
LESSOn rea,sonabb'
right to increase the required amount of
from to time during this if
addi coverage is required.
I-F'
. ...
[inti t,1:18
; i~ a
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optio1.
m cry~ ,
to carry any such policies. LESSOR. at
obligated to carry such pol
, ~fJ,ttl ~Gl1eJ:"eorJ. at the
cf pc"~lmt)t!t, i2: 11 become due and paYable
rV3xt Stlcc;eed,irlt2: 't c~f
e,f ars.Y' pre'm:LtllilS cJr tIle
policy shall not be. nor be deemed to a
e of the ault of LESSEE with respect thereto. or
r.'.~:;tJt, ~
LESSOE 01: any
valver or :re
10
..t...t."
the ri~ht of LESSOR to institute summary proceedings and/or take
such other action as may be permissible hereunder as in the Case of
default in payment of net rent.
B. Fi~ Insuranc~
LESSOR agrees to purchase and keep in full force. fire
and extended cover~ge insurance covering the leased premises as
determined by LESSOR's insurance company's appraisers. which shall
be for full replacement value. The cost of any insurance procured
by the Landlord is a common area maintenance cos.t for which the
Tenant is obligated to contribute its proportionate share as
described in T.(D) of this Lease.
c. C~ of Insu,J:::anC;Q
At the commencement of the term of this Lease. LESSEE
shall deliver to LESSOR certificates of insurance manifesting
required Coverage. and at least thirty (30) days prior to the
expiration of each such policy or policies. LESSEE shall pay the
premiums for renewal insurance and within such period shall deliver
to the LESSOR the original policy or duplicate original with an
endorsement thereon marked "paid" and/or duplicate receipt or other
information satisfactory to the other. eVidencing payment thereof.
If the original policy of any such insurance shall be required to
be delivered to the benefiCiary of any mortgage or deed of trust to
which this Lease is subjct and subordinate. the duplicate original
or certificate of such policy shall be delivered to LESSOR upon
request. LESSEE shall have the right to maintain required
insurance under blanket policies.
D. \1Q:rh:er 'R E~~.i.oJ:l
\<lith regard to any Harker's
by LESSEE. the LESSEE agrees that
subrogation against the LESSOR (or
agents). and such insurance shall
subrogation.
Comonsation insurance carried
it shall waive the right of
its employees. assignees or
provide for such waiver of
E . W..Q~-E.lib...r:.Pga t to D,
\-1i th regard to anV' insurance required to be carried by
LESSOR and LESSEE pursuant to this LeaBe. both LESSER and LESSOR
agree that ne1ther shall have the ria:ht ofe;ubrogation against the
other (or its ~mploYees. assignees or agents), and such insurance
shall provide for such waiver of subrogation.
4 ~,
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.t,."$
22. IndemrLj f'igation
LESSEE shall indemnify and hold LESSOR harmless and defend
LESSOR from any and all claims of liabili tv for any in.iury or
damage to any person or property whatsoever incurring in. on or
about the leased premises or any part ther'eof. other than claims of
liability arising from the negligence or wrongdoing of LESSOR or
LESSOR's agent.
? ~.
.,
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Q t i 1 i t L~fi..
",
LESSEE shall pay dtrectly for water. gas . electricity and
telephone services and a 1 other utilities supplied to the leased
premises. LESSEE shall also pay for the removal of all garbage
from the leased premises.
24. 'I'.ax~e;
A. GrsonQ~..rtv TaxeD
LESSEE shall pay before delinquency any and all taxes.
assessments. license fees. and public charges levied. assessed or
imposed and which become payable during the lease term upon
SEE's fixtures. furniture. appliances. personal property
installed or located on the premises.
B . Rea L_tr:DPe r.tL-1.ax..ejL~-'~J,-.l:l:.D rQ ta _ S h q, re
LESSOR shall pay before delinquency any and all
municipal. county or state real property taxes assessed against the
leased premises and the parcel of la.nd upon 1;,Thich the leased
premises are situated. LESSOR shall also pay any local or municipal
taxes asses on rentals or rental income.
LESSEE shall. durinr:r the term of this Lease, pay its
prorate. share of all Guch real property taxes for the Shopping
Center where the le~Bed premiSes are located in the proportion to
the rentable floor area that LEGSEE~B premises bears to the total
rentab_e floor area of all buildings from time to time completed in
ShOPPing Center. whether or net leased. LESSEE shall pay to
LESSOR within fifteen (15) davs after LESSOR submits a bill
refer. LESSEE's share such real property taxes. LESSOn ehall
enlbwL t to L 2. true COpy of e,s.ch current tax bill. and 1:1.
st21..Je t "t.otal Squ.t,::tre feet of all reri.t:e~bl.e LCl
in "tlle parcel represent
tb.at t,,3.X bill.
14
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i. /.t. ,,:-
25. E '~
rron.a.nt.tl
LESSOR agrees that during the time this Lease i8 in force,
LESSOR will not lease other ~remises in the Dublin Square ShoPPing
Center solely a8 an autamabile paint supply stare.
26. Subo:rdinatiQn
LESSEE agrees tha-t this Lease shall be subordinate to any
martgages or trust deeds t,hat may hereafter be placed upon the
premises. to. any and all advances made ar to be made under them. to.
the interest and all obligations secured by them and to all
renewals. replacements and extensians af them. Provided. hawever.
the mortgagee ar beneficiary named in any such mortgage or trust
deed shall recagnize the Lease of LESSEE in the event of
fareclasure. if LESSEE is not in default under the terms of this
Lease. If any mortgagee or beneficiary elects to. have this Lease
superio.r to the lien o.f any such mortgage or deed of trust. whether
this Lease is dated or recorded before or after the mortgage or
trust deed.
LESSEE shall. at any time and from time to. time. upon not less
than ten (101 days' prior request by LESSOR. execute. acknowledge
and deliver to LESSOR a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been
madifications. that tbe same is in full force and effect as
modified and statin~ the modifications) and the dates to which the
fixed rent and other charges have been paid in advance. it bein~
intended any such statement delivered pursuant to. this subparagraph
may be relied upon by any prospective purchaser or encumbrancer
(inclUding asignees of either) of the Sho~ping Center,
27 T:..x:.an..s fer ("J~ V e :cRJ,..QXl
In the event of a sale or conveyance or other transfer by
LESSOR of LESSOR's interest in the leased premises. the same shall
operate to. release LESSOR from any future liability. herein
contained in favor af LESSEE. and in such event LESSEE agrees to
look solely to the responsibility of the successor in interest of
the LESSOR in and to this Lease. If any securlty be given by
LESSEE to secure the faithful performance of all or any af the
covenants of this Lease on the part of LESSEE. LESSOR ffiSY tran6~er
and/or deliver the secur:Lty as such. to th(;:; purch(';lser of the
reversion. in the event that reversion be sold. and thereupon
LESSOR shall be dis any further liability with
reference thereto.
~ .:.v\
.1..'-,"
/2 :~~:
28. Ru1es '2n.d...E.eguJation~,-
LESSOR reserves the right to issue Buch reasonable rules and
regulations. relating- to the use and occupancy of the leased
premises and the access, parking and common areas of the ShoPPing
Center as LESSOR may deem appropriate for the best interest of the
LESSEE and other tenants in the building. Such rules and
regulations me,y include. v<ith limitation;
A. The ri~ht to close. if necessary. all or any portion of
the common area. sidewalks. roads. access roads, malls and other
facil! ties to such exte:nt "as may. in the opinion of LESSOR. be
leRally sufficient to prevent dedication thereof or the accrual of
an:! rights of any person or of the publ:Lc therein and no such
closing shall be deemed an eviction of LESSEE nor shall any rebate
or diminution of rent result from such closing;
B. The right to control time for loading and unloading of
merchandise and the placement and times of disposition of garbage,
trash and debris:
C. The right to deSignate employee parking areas. LESSEE
shall abide by such rules and Cooperate in the observance there~f.
Such rules and regulations shall be binding uPon IJESSEE l1.p::Jn
delivery of a copy thereof to the LESSEE. The rules a:ld
regu ions may be amended by the LESSOR from time to time with or
without advance notice. and all amendments shall be effective upon
delivery of a COpy of them to the LESSEE, All rules promulgated
pursuant to this paragraph shall be approved by LESSEE before
taking effect.
29 . T i rL\f;~....QS:.......t~..,=-.....eJ:;;'(i~.c-...fi
Tim~ is of the essence of this agreement and each and every
PE'.r'G t.h.ereo:E.
;3 0 . t{Q-~[Q~il2LY..e.r:..t_~1l:.s:Li.?J;:..--,':.Q,J;':.t~J:fJl.iJ2.
Not.hing herein
C:CU:lt,c;; a joint ventuy'e
1 construed as. nor shall this Lease
or partnership by and between LESSOR and
16
'.
31 . Not, i CF;S
All notices. statements. demands. requests. consents.
approvals. authorizations. offers. agreement. appointment or
designations under this Lease by either party to the other shall be
in writing and shall be deemed duly given and served upon the other
party if delivered personally to the recipient. upon such delivery,
and if sent by mail. Upon deposit in the mails. postage prepaid and
addressed as follows:
To the LESSOR:
Berkeley Land Company. Inc.
1211 Newell Ave.. Suite 120
Walnut Creek. CA 94596
To the LESSEE:
Glenn Thompson
THOMPSON PBE. INC.
A Delaware Corporation
11815 Dublin Blvd.
Dublin. CA 94566
32. W~LYer of Breach
N6 waiver of any condition or covenant of this Lease or of the
breach of am" condl tion or covenant shall be taken to constitute a
waiver of any subseauent breach of such condition or covenant. or
to Justify or authorize the non-observance on any other occasion of
the same or any other condition or covenant hereof. nor shall the
acceptance of rent by the LESSOR at any time hereof be construed as
a waiver of such default or of the LESSOR's right to terminate this
Lease on account of such default. nor shall any waiver or
indulgence granted by the LESSOR be taken as an estoppel against
the LESSOR.
"Cl
,) \../ .
Caption.s
----.-.--
The paragraph and subParagraph cap~lons of this Lease are for
the convenience only and are not a part of this Lease and do not in
any way limit or amplify the terms of provisions of this Lease.
34 . S uQ.2..~~~J. ~:~1itL5El!?.
This instrument shall be binding upon and shall inure to the
benefit of the resoective parties. their successors. assigns. legal
re-oresentativec. orov:Lded tha..t this clau.se shall not. perm! t 8J1V
assignment contrary to the provisions prohibiting assignment
herein. .
17
~r:?;
I
35. Interpretation
The language in all parts of this lease shall in all cases be
construed as a whole and simply according to its fair meaning and
not strictly for nor ~gainst the LESSOR or the LESSEE. and the
construction of this lease and any of its various provisions shall
be unaffected by any claim. whether or not justified. that it has
been prepared ..,holly or in substantial part by or on behalf of the
LESSOR _ il
36. Invalidity of Particular P1;:ovision_
If any term or provision of this Lease or the applicability
thereof to any person or circumstance shall. to any extent. be
invalid or unenforceable. then the remainder of this Lease. or the
application of such term or provision to persons other than those
as to i"hich it is held invalid or unenforceable shall not be
affected thereby and each term and provision of this Lease shall be
valid and be enforced to the full extent permitted bv law.
37. G9'lerniw~Lq;;i
This Lease shall be interpreted and construed according to.
and the conduct of the parties hereunder shall be governed bv. the
laws of the State of California.
LESSOR:
---.
~.KSSEE:
BERKELEY' LAND COHPANY. INC"
Its:
THO MP,9-8 t\~mr:-r i:*'G .
1:1 Det:;ja.re corp,ation
///1; I ~
By, fl/"'1 I FM--
r/d () J<1""", (j r I VI,,: -'
Its:~_C_
/. ~I
:::---::;rR<e '-I I r'l)
':;~V-...
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( ) rrf
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: __u /7,"\ \ (-- <:;] CA~;),'!c-?,f '
~.----v,r:;;..4--.-r--'--,..___._....____,~____
Frank Sabatte
18
"
DUBLIN SQUARE LEASE
THOMPSON PBE. INC.
A Delaware Corporation
11819 Dublin Blvd.
Dublin. CA 94566
~
1. Parties
2. Premises
3. Lease Term
4. Bent
5. Security Deposit
6. Tenant Improvements
7. Use and Prohibited Uses
8. Signs
Page
1
1
1
2
3
3
3
4
4
4
6
6
9. Business Hours
10. Parking and Common Areas
11. Name
12. Alterations
13. Maintenance and Repairs
14. Compliance with Government Regulations
Land Use Permit. etc.
15. Entry by LESSOR
16. Damage or Destruction of Premises
17. Assignment and Subletting
18. Insolvency or Bankruptcy
19. Remedies for Breach
20. Attorney's Fees
21. Surrender of Lease
22. Holding Over
23. Surrender of Premises on Expiration of Term
24. Insurance
25. Indemnification
26. Utilities
.,...,.
I
'7
,
8
8
10
10
11
13-
1:3
13
i3
14
15
15
15
16
16
17
27 .. TlaJt6S
28. Exclusivity and Other Tenants
29. Subordination
30. Transfer or Reversion
31-
32.
Rules a~d Regulations
Time is of the Essence
No Joint Venture or Partnership
Noi:ices
\"iEllver of Breach
(:aTJ.tiorlS
Successors and Assigns
In-ternretation
Invalidity of Particular Provision
Governing Law
" ,",'
J_ I
18
18
.... "
'1)~) ,.
34.
18
35,
36~
~) 7 .
as.
18
18
19
19
19
19
'"'Q
.)v.
40.
I -?,
I-I
",,i'
DUBLIN SQUARE LEASE
THOMPSON PBE, INC.
A Delaware Corporation
11819 Dublin Blvd.
Dublin, CA 94,566
1. P~l~ti~L
This lease is made this 1st day of April, 1.895, by and between
BERKELEY LAND CO.. INC., herein called "LESSOR". and THOMPSON PBE..
INC.. A Dela\.-7are Corporation, herein call~d "LESSEE".
2 "- Prem.iJ3eA
For and. in considerc.tion of the covenants and agreements
hereinafter mentioned to be kept and performed by the parties, the
LESSOE. hereby leaP-leG to LESSEE. and LES2.EE leases from IJESSOH, a.
portion of the building area on real property situated in the City
of Dublin, County of Alameda, S-;:;a"Ge of California. and more
particularly desc~ibed as follows:
Approximately 2600 net square feet located at
the Dublin Square. The street add.ress is
11819 Dublin Blvd.. Dublin. Ccd.ifornia ("the
If"3ased prerr;.ises to )
3 ~ LA8....h~ fr!~nl
A, QOm.ID~~llls..nt.
1, 1995.
This lease term shall commence on April
B. 111i.tJ.J2,l....T<e.:clJl. The 1nt ia.l term shall be for >3. period of
i:i^(le (5) y'ea.L'S'1 comrnellC; ()n trle C()ll'lIaencemrr:;rlt, (late d.esc~ribed
t~'b()'l;te ~
C. In addition to the
have one (1 option to extend the
consecutive term of five (5) yea~8.
initial term. LESSEE shall
lease for an additional
D. In th..3 event LE:3SEE def:lres to
xerci~e the give to written notice o~
eX~r]lSe of vian at least cne hundred e ty (180) before
til<::: tt(::rn.1ir:t,s, '. j~C}Jl c~f t.b.e E;A:1st le~afje -t.er-rn _Q If t:he lon is
exercised, tile lease shall continue upon all of the same terms and
conditions, for the rent~ whi,ch shalJ_ be set forth below.
[ cr'iS,
4 . Re.rLt
A. Monthl~. The initial base monthly rent shall be
Twenty Three Hundred and Forty Dollars ($2.340.00}.
The first month's rent payment shall be due upon execution of
this Lease.
B. Due Date and Late Char~es.
payable by LESSEE on or before the
in advance. and delinquent if not
tenth (10th) day of each month.
All rental payments shall be
first (1st) day of each month.
received by the LESSOR by the
In the event that the mini.roum monthly rent is not received bY
LESSOR within ten (101 days of its due date. LESSEE agrees to pay
to LESSOR as additional rent a late charge of five percent (5%) of
the rental amount due.
c. ~r~Qrease. The base monthly rent of Twenty Three
Hundred and Forty Dollars ($2.340.00). as established in 4A. above.
shall be increased (but never decreased) at the commencement of the
third (3rd) year of the lease term by a percentage equal to the
percentage increase in the San Francisco-Oakland-San Jose Consumer
Price Index (All urban consumers. all items) as maintained bv the
United States Department of Labor --"the lndex"--during the
preceding years, at which the rent was at the same fixed rate. All
comparisons will be based upon the Index figures for the
commencement of the third (3rd) year. April. 1997. will equal the
percentage increase in the Index from March. 1996. through March.
1997. However. the CPI increase shall not exceed seven percent
(7%) per annum. or a maximum increase of twenty one percent (21%)
r7% times three (31 years] at the CPI increase d~te.
D. O-pJLLQIlJJ',;t.r:,:LD..JL.Jlan..:t. In the event the LESSEE exercises
the option referred to in 3C. above, to extend the original lease
term for an additional three years (31, the initial 'rent at the
commencement of each additional three (3) yeErs shall be adjusted
to the then current market value. However. this adjustment shall
not result in a rental decrease. The rental adjustment shall be
accomplished by the mutual written agreement of the parties. if
possible.
If the par~leE and their legal representatives cannot reach
such an agreement within sixtv (60) davs prior to the commencement
of the option period. the then current rental market value shall be
determined bv the average of tl:u~ee (3) virl i~ten a-ppraisals from
licensed and experienced real eej~ate appr~,:U3eri3. One such
apprcdser shall be selected and paid bv e<.;,ch party. The third
8.ppraiser shall be selected by the first two appra5_sers and po.id
one-half (1/21 by each party,
:2
.:
the LESSOR reserves the right from time to time to make changes in
tl'e shape. size, location, number and extent of improvements,
buildings. accommodation areas. parl\:ing la.yout or areas. and other
improvements and to eliminate or add any improvements (~ buildings
to any portion of the Shopping Center: provided. however. LESSOR
shall comply with Sub-paragraph B. below. During the term of this
Lease, LESSOR shall operate, manage. and maintain all parking
areas, road and accommodation areas within the Shopping Center.
Th.e manner in which such areas and facilities shall be. maintained
and the expenditure for6 maintenance, shall be at the sole
discretion of LESSOR. provided that LESSOR is obligated to
reasonably maintain the areas and facilities for the benefit of the
Shopping Center.
LESSOR shall manage the accommodation areas at direct cost to
LESSOR. LESSOR shall use good faith efforts to economize on costs.
consistent with good business practices. The use of such areas
8.ud facilities shall be sub.iect to such reasonable regulations and
changes as LESSOR hereby grants to LESSEE. during the term of this
Lease, the right to use, for the benefit of LESSEE and LESSEE's
employees, agents. customers and invi tees in common with. other
tenants of the Shopping Center. their employees. agents. customers
and invitees. all common areas. including the accommodation areas.
the parking (:',1'ea6. and road, subject tc any rights. powers and
privileges resrved to LESSOR. No parking fees shall be established
and no meters shall be used.
B. P..-a.rk inELJJ rea
Within the limits of the Shopping Center. LESSOR shall have
hard surfaced. marked, properly drained. adequately lighted and
landscaped parking area or area. together with the necessary access
thereto. LESSOR reserves i~he right to change the parking areas and
parking layout from time to time. The parties anticipate that the
area will be devot,ed principally to parking, with r,sasonable
provisions for landscaping. access and other accommodation areas.
c ~ L~:Q~eJ'~ ~s--E ~i..LUg,
LESSEE and its officers. agents and employees shall park their
c::;,rs only in o.ree.s specificc..llv deeignated for t,hat purpose by
LESSOR from time to time. Within five (5) days after request by
LESSOR. ['ES~3EE shall furnish -[,0 LESSOR the automobile llcexl.i:ie
numbers assigned ot its cars and the cars of all its officers.
agents and emplovees. LES~jEE shall not at anv t:Lm.c:: park OJ::' TX:2L'mit
the parki,ng of its trucks y-ehicles or the truc~s or veh.icles of
()tl"'~,er6 ~ acen.t t,o lc)ar:t ar'ecu::~ so as t.o :Lri"'c.er'fer'c i::l. arl;?" W.~l'Y~
wi~h the use of such areas. nor shall LESSEE at any time or
permit the ing of its ~rl~cks or the trucks of its iers or
other. in a~y portion of the parking lot not des by LESSOR
for 6UC}1 use by LE,&SEE~ This paregraph requires a diligent effort
in good, fai trl LESSEE ~ a.fld is D.ot c~n. c:tDsol1.Jte d1.:ct.y ~
~
.j
...., ""'-i
ir~:'
E. CPI Increase Durin~ Ontion ~. The monthly rent at
the commencement of the option period. as established in 4C. above.
shall be increased, but not decreased. at the commencement of the
third (3rd) year of the option period by the same procedure as set
forth in Paragraph 4D above.
5. ~cl1ritv Deposit.
LESSEE, as Assignee o.f Lease. on June 1. 1990. had a Nineteen
Hundred Fifty Dollar ($1.950.00) deposit transferred to the LESSOR
(from Matley's contract) which deposit shall be security for the
faithful performance of all the terms of this Lease. The Deposit
shall be retained by LESSOR without interest and may be applied
against any charges. debts or damages due LESSOR from LESSEE.
6. Tenant Im.l2..r.Qvement&. Due to an edict from Dublin City
Planning (Robert White) and the Daugherty Fire Authority (Robert
Snodgrass), fire code update changes will be made to the rear paint
mixing area of the store. These changes shall be accomplished by
,June 1. 1995. at a contractual cost of $25.600.00. The LESSEE
shall pay $17,152.00 (67%) of the fixed price contractor cost. and
'the LESSOR shall pay $8,448.00 (33%) of the cost. The letting and
administration of the contract shall be by Tom Eastland (Store
Hgr. ).
'( . f]p,e and Prohibit~ed US~
The leased premises shall be used solely for an auto.m.obile
paint supply store.
LESSEE shall not. wi thout t~he prior wri'tten consent of LESSOR.
use or permit said premises. or any part thereof. to be used for
any purpose or purpoees other -ch3..n t.he pu,rpose or 'purposes for
which the said premises are hereby leased. N~ use shall be made or
permitted to be made o~ the said premises, nor acts done. which
v.rill i11crease th.e e2tistil'1g rate of t:n.6lJ..ranc~e llPOD. t~l~(::; leased
premises, or any part of the leaEled, premises. unless LESSEE shall
pay ~cbe difference between normal insurance rates for similar
businesses and such increased rate. which additional costs shall be
deemed rent herein and paid to LESSOR on demand. Nor shall LESSEE
cause a c2ncellation of any insurance policy covering the leased
premises or any part of the leased p~9mi8e8. nor shall LESSEE keep.
use or sell. or permit to be kept. used or sold. in or about the
nremises, any articles which may be ibited by the standard form
of fire insurance policies with extended cover~ge. LESSEE shall.
at its sole cost and expense. complY with any and all requirements
pertainin..g t.o s8.ict premises, eff an-:l lrtSt:trarlCt3 organizati\")rl or
':)
,j
.'
pertaining to said premises. of any insurance organization or
company necessary for the maintenance of reasonable fire and public
liability insurance, covering any part of the leased premises.
LESSEE shall not commit. or suffer to be committed, any was-te
upon the premises or any nuisance. or other act or thing which may
damage the leased premises or disturb the quiet enjoyment of owners
or tenants of adjoing parcels of real property.
8 . 5.Jgna
During the second quarter of 1990. a new exterior sign was
installed at the LESSOR-s expense. The LESSEE and City of Dublin
approved the sign.
9. B.l..:Li;linee;s Hoi.-lrn..
LESSEE shall continuously, during the entire lease term and
any renewal thereof. conduct and carryon LESSEE's business in the
leased premises and shall keep the premises open for business and
cause such business to be conducted thereon during each and every
business day for such number of hours each day as is customary for
businesses of like character being conducted in the area in which
the leased premises are located: provided. however. th;,;..t this
provision shall not apply if the leased premises shall be closed
and.the business cf LESSEE therein shall be temporarily shut down
on account of strices. lockouts or causes beyond control of LESSEE.
10. Eax:k.:Lnfl C\wlS&IDIrl.QYi Are..!2..R
A.
,-. ,... "~'
JJ e :t J,.ll.l.J.'-J. 0 n. i;l
The term "~3hopping Center" means the entire a.rea within the
outer property limit shown on the plot plan attacbed hereto and
marked Exhibit "A" and c,ll other pieces or parcels of land ,at any
time or from time to time designated by LESSOR for use as part of
the Shopping Cerl.ter. Any ad..:iitional property designated by LESSOR.
for use as part of the Shopplng Center shall be included until such
clef;] shall be rev'oked by LESSOR. Any portion of the
E>hopp Cent-.er tha.-t may be taken by eminent domain, privat:e
purchase in lieu of eminent domain, or dedicated for public use.
upon such tak . purchas,e or dedication~ shall be excluded. The
"tjerm U accom.rnod.at l.[)D~ a~~eas H n_',ean.6 all area.s and feLcili ties Ollts id.e
the premises that are provid~d and designated LESSOR for general
tL!:;e D,n.cl c()nven,i.enc;e; cr'f' LE:BSE:8: a!}d ot~b.er I.lE:SSEES of all c~r ctn';l r)r3~rt,
of the Shopping Center and their respective employee3~ cus-tomers.
and invitees. Accommodation areas include..but are not limited t0~
areas, pedestrian sidewalks and landscaped areas. The site
f,l,3.n 0:1: tb.e Center is at.t;ached her'eto as Exhibit "B", and
4
202
D. L€6SAB ^ sShara of~kj ng & Common Arp,a EXDenS8
During this Lease. the LESSEE shall pay its prorata share of
the common maintenance total cost where the leased premises floor
area bears to the total rental floor area in the shopping area.
The monthly Common Maintenance charge will be a continuation
of $60.00 per month as was in the prior Lease contract,
11. ~
LESSEE covenants that from and after the expiration or earlier
termination of this Lease. it shall not operate under or use any
name which shall include the name of the Shopping Center or the
building. The provisions of this paragraph shall apply to any
person. firm or corporation which controls or is controlled by
LESSEE.
12 . A] t e r aIL.1..Qn.a.
A. Limit8t'iOtl
I.rESSEE shall not mal:.e or suffer to be made any a1 terations of
the premises or any part thereof. at a cost in excess of $1,000.00,
wi t~hout the written consent of LESSOR first had and obtained, and
emy additions to or alterations of the said premises, except
movable furniture and trade fixtures. shall become a part of the
realty and belong to the LESSOR at the expiration of this Lease or
earlier vacancy of the leased premises by LESSEE.
B . lkL1:1.f:~ an i c ^ 6 ~,~~"Q..s.
LESSEE shall keep the l'~ased premises and property in which
the leased premises are situated. free from any liens for i--Tork
performed. material$ furnished or obliga.tions incurred by LESS,EE.
In the event LESSEE shall fail to do so. LESSOR may (but is in no
way obligated to) pay any claims for any labor. services.
ma-terials, supplies or equipment alleged to have been furnished to
or for LESSEE. payment for which may be secured by mechanic's or
mai~erialmen' s liens agairu,t the premises or LESSOR's interest
'there in . Notwithstanding the foregoin.g, hN,ever. LESSEE shall have
i~he right t.o contest 'the validity of any such claim. If L,ESSEE so
elects to contest any claim, LESSOR shall not pay said claimant if
LeSSEE furnishes such security 0.8 I,ESSOH in its discretion may
require to protect LESSOR"s interest. LESSEE agrees to execute and
file a notice of completion as provided in Sect~on 1193.1(f) of the
California Code of Civil Procedure within ten (10) days after the
completion of any contract for any work of improvement. LESSEE
agrees' to pay the fees and other charges: of completion. In -the
event LESSOR elects to pay any such claim, LESSEE shall reimburse
6
2-D
LESSOE? wi thin ten (10} days of demand therefor. In the event
LESSEE fails to reimburse LESSOE? within ten (10} days, the lease
shall be deemed in default in the same fashion as if LESSEE had not
paid rent due in that sum.
13 . tlaint!~JJ~WJ:L!le..l?...aj rF.i
A. L.EliliEE's Direct t1air]terLG.:C:l.Ct";. and F...e.uairf{
l.
LESSEE shall at its own cost, keep, repair, replace and
maintain the leased premises and every part thereof. (exclUding the
foun.dation. roof and exterior walls which LESSOR agrees to repair
and maintain), including glazing of store front. heating, air
conditioning. electrical, plumbing, ventilating, fire sprinkling
system. if any, and fire extinguishers, and the interior of the
premises, in good and sanitary order. condition and repair. LESSEE
hereby waives all right to make repairs of any kind at the expense
of LESSOR, as provided in Section 1942 of the California Civil Code
and all rights provided for by Section 1941 of said Code. In the
event LESSEE shall fail to keep said premises in good sanitary
order. condition and repair. LESSOR may, after giving LESSEE ten
(10) days' written notice demanding that LESSEE comply with the
requirements of this paragraph. make or cauc;e to be made such
repairs or other work as necessary to restore the premises to good
and sanitary order, condition and repair. Any expense incurred by
LESSOR in. the exerciEie of its option shall be paid by LESSEE
immediately upon demand therefor by LESSOR.
B , r.LE..SfurE~_.Re.J._mJ::ru.r~"g;Jrl~ n t 0 f LESS 0 H ~..':i .....'9 e n ;:;dr.Ji;~nB3..e..
The foundation. roof and exterior walls of the building in
wnlch the leaf:;ed premises are loca-ted shall be repaired and
maintained by LESSOR at LESSOR's direct expense.
LESSEE shall reimburse LESSOR for such repair expenses of
LESSOR on th,:: same prorata bas is as described in the paragraph
entitled "Parking and Common Areas". above. LESSOR shall also
repair and maintain the exterior painting, plu~bing and electrical
systems i~ the common areas and building exterior. As to these
last mentioned items. LESSEE shall reimburse LESSOR on the next
billing period following the receipt of a billi:ngtherefor
LESSEE's prorata share.
14 . Co m.:g 1 i" ,:::;r1S..if~F j 1~ l:L...G..2Y e rTl111'?JJ~!;_r~~lL1Lli<\j:. i QJ1~ L QJ..1 d _ U E; ~J~f;3Lmj~~::'_,-..~t!.:::,_,-
LESSEE shall. at its sole cost and expense, comply with all of
the munic I, COUD state,
guasi-governmental 8Ilth.orities
be in force~ perteining to
faithfully observe in the use
federal, and other governmental or
now in force. or which may hereafer
the leased premises, and shall
and occupancy of the premises all
7
Z-DCf
municipal and county ordinances and regulations. state and federal
statutes and regulations and rules and regulations of any other
governmental or quasi-governmental authority now in force or which
may hereinafter be in force. The judgment of any court of
competent jurisdiction. the decision of any arabitrator or the
admission of LESSEE in an action or proceeding against LESSEE'.
whether LESSOR be a party thereto or not. t-ihat LESSEE has violated
occupancy of the premises, shall be conclusive of that fact as
between LESSOR and LESSEE. NotHi thstanding anything to the
contrary in the foregoing, .LESSEE may contest the validity of any
such ordinance, statute, rule or regulation or the applicability
thereto to LESSEE. as LESSOR shall in LESSOR"s contest (including
any appeals for any intermediary court. boards or authorities)
shall prove unsuccessful, LESSEE shall forthwith comply 'Hi th said
ordinance, statute,. rule or regulation.
15. Entrv bv LESSOR
LESSEE shall permit LESSOR and its agents to enter into and
upon said premises at all reasonable times for the purposes of
inspecting the same or for the purpose of making al"terations or
additions to any por.tion of the leased premises. including the
erection and maintenance of such scaffolding, canopies, fences and
props as may be required or for the purpose of posting notices of
non-liability for alterat,ions. additions or repairs or for the
purpose of placing upon the leased premises any usual or ordinary
"For Sale" signs, or for the purpose of exercising its option as
hereinabove provided for making repairs to the leased premises
which are the responsibility of LESSEE and which LESSEE fails to
make, or for ~ne purpose of exhibiting the premises to any
prospective purchaser or mortgagee of the J.eased premises.or any
portion thereof or for the purpOSt:; of exercis ing any right or
opt~ion herein gran'ted LESSOR. without any rebate of rent and
without any liability to the LESSEE for any loss of occupation or
quiet enjoyment of the premises thereby occasioned. LESSEE shall
permi i: LESSOR, at any t.ime >-ii thin ninety (80) days prior 1::'0 the
expiration of the term, to place upon said premises any usual or
ordinary "To Let" or "To Lease" signs and to l>ermit tr18 ent;ry
during said period of LESSOR for the p1:l-rpose of exhibiting the
premises to any prospective tenant, Such entry shall not interfere
with normal business operations.
1 ..
~,b "
Dam.l2 q e .2L-I2.e.6j,J:1JDt j 0 n..-,~r.0.m1-BJ:;J'i
A. In the e'lent of a partial destruction of the premie]es
d.u,Y'i.rlg tb.e lease tern1 ret}1)Ali::ir1g from <:1.ny of i:11€-; ca'U.Eies :Lrlsured~
against by the California Standard Form fire insurance policy with
extended coverage endorsement, which said partial destruction doe~
not render the leased premises untenantable, LESSOR shall repair or
other'wise ~estore saj_d premises as speedily as possible~ provj_ded~
however. that in such repair or restoration. LESSOR shall not be
e
i,. <,"1
obligated to incur any expense in excess of the insurance proceeds
payable as a result oIsaid partial destruction. Such partial
destruction shall in no way annul or void this Lease. except that
LESSEE shall be entitled to a proportionate reduction of rent while
such repairs or restorations are being made, such proportionate
reduction 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 leased premises. If such partial destruction shall cause
the premises to become untenantable. or in the event of a total
destruction of the premiseE;;. or Lf the partial destruction shall
result from a cause not insured against as aforementioned, or if
the insurance proceeds payable do not adequately provide funds for
repair or restoratioL. the LESSOR shall give written notice to the
LESSEE within ninei~y' (90) daY6 after the occurrence of such
destruction or LESSOR's election either:
(1) To repair the premises, using any availa,ble insurance
proceeds and supplying additional funds: or,
(2) To terminate this Lease, receiving and retaining all
insurance proceeds free of any claim by LESSEE. as a
result of or arising out of such termination.
B. In the event the LESSOR is obligated or elects to repair
or restore damage to the leased premises. such repair or
restoration shall encompass Jnly that portion of the leased
premises which was originally constructed or added by LESSOR and
shall not involve the repair or restoration of any fixtures or
alterations installed by LESSEE unless those fixtures or
a1 t>:;rat ione are par't of the n~al ty emd be long to LESSOE( cU1d are
covered by LESSOR's insurance policy.
C. For the purpose of this paragraph, t.he leased premises
shall be deemed untenantable in the eveht ciore than thirty percent
(30%) of the total square footage of the improvements erected upon
the leased premises ~re destroied unless LESSEE and tESSOR agree
otherwise in writing.
D . Hi :Lng
shall not be liable for
labor'" d.isI).l.lt<~S, t:iC;1:.G
LESSOB.~s c01:}~tr-ol~
Ol~ restor'irlg tJ:'ie leeu:~ed prerniser3 ~ r.JIESSOR
any delays resulting from strikes. or other
o:f the elements or otb,er cat,1ses oute3ide
E. LESSOR agrees that LESSOR will obtain, pay the premiums
()n and. ID2.LirLtct..in j rlt:i.')rce a (:.:ll5.fort"l..ia St.Et1"ld.ar'd IC}lP<ID .fire irlf3tl.r'~;ty.1':;e
J;"1() lie;;/" 'r:~ i t.Il .e)ci~(:::n.cl;3(1 CC;'Vf:;r.ag,e t:;ndor~:.;,eU'J.;,:~n.t, ~:~r!.St;lr tX1e ed
~p:r'e,n1j~s'es for~ an (;1.rrlOtln,t~ a.t. lecL}3t e(Jtla~l tiC) tb,e ~"'"'equ~irernentc ("J.t: 'L,~1~~
holder of a~y fj.rst mo on the leased premises.
D
,.
v
F. In the event of any dispute between LESSOR and LESSEE
relative to the provisions of this paragraph. they shall each
select an arbitrator. and the tl'TO arbitrators thus selected shall
select a third arbitrator. and the three arbitrators so selected
shall hear and determine the controversy and their decision thereon
shall be final and binding upon both LESSOR and LESSEE, l'Tho shall
bear the cost of such arbitration equally between them.
17. AssignmenT~nd Subletting
LESSEE shall not voluntarily assign this Lease or any interest.
therein and shall not sublet the said premises or any part thereof.
or any right or privilege appurtenant thereto. or suffer any other
person (customers. suppliers. guest. agents and servants of LESSEE
excepted) to occupy or use the said premises or any portion
thereof. without the written consent of LESSOR, which consent shall
not be unreasonably withheld. A consent by LESSOR to one
assignment. subletting. occupation or use by any other person shall
not be deemed to be consent to any subsequent assignment.
subletting, occupation or use by another person. Any such
assignment, su.bletting or occupation or use wi-'chout the written
consent of LESSOR shE,ll be void. and shall. at the option of
LESSOR. constitute a breach of this Lease. giving rise to all
remedies of LESSOR for breach or default set out in this Lease.
This Lease shall not be. nor shall any interest therein be
assignable as the interest of LESSEE by operation of law l'Tithout
the written consent of LESSOR.
Any transfer or shares of stock by LESSEE in excess of twenty-
five percent (25%) of the outstanding shares shall be deemed an
ass ignment. requiring LESSOR r 13 prior written consent. LESSOR.' s
consent shall not be unreasonably wi Ulheld. LESSEE shall pay
LESSOR's reasonable attorney's fees and costs incured in
considering a request for consent to assignment or s~bletting.
In the event that LESSEE assigns or sublets this Lease at a
higher rental than the rental set forth herein. one-half (1/2) of
such increased rental shall be paid to LESSOR.
18. ID6olTIu:~Q_y:' or Ban~
The appointment of a receiver to -take possession of all or
substantially all of the assets of LESSEE. or a general assignment
by the LESSEE for the benefit of creditors. or any action taken or
Buffered by or against LESSEE under any insolvency or bankrup~cy
remedies of LESSOR for breach of this Lease. giving rise to all
~emejies of LESSOR for breach or default set out in this Lease.
10
For the purpose of this paragraph. the ~ccurrence of any of the
foregoing events to or any prohibited action taken by any person or
entity guaranteeing the obligations of LESSEE hereunder shall have
the same effect as if such event occurred to or action were taken
by LESSEE.
19. Remedi.e~Brp.aoh
In the event of any breach of this Lease. or any covenant.
condi tion or provision hereof by LESSEE which continues a:fter
LESSOR has given ten (10) days' rlOtice to LESSEE of such breach as
herein provided. the LESSOR. besides other rights or remedies it
may have. shall have the rights and remedies set forth below. (If
the breach concerns maintenance or repair of the premises. such
maintenance or repair must be undertaken within thirty (30) days
and proceed to conclusion without unreasonable dels.y.)
A. LESSOR shall have the immediate right of entry
without prior notice or demand and may remove
all persons and property from premises.
~emoving such property and storing the same in
a public warehouse or elsewhere at the cost of
and for the account of LESSEE.
B. Should LESSOR elect to enter. as herein
provided. or should LESSOR. tal,-e possession
pursuant to the legal proceedings or pursuant
to any notice provided for by law. LESSOR may
either:
(1) Terminate the Lease: or
(2) From time to time without terminating
this Lease and without the necessity of
notifvinR LESSEE of the fact. relet said
premises or any part thereof for such term or
trms (which may be for a trm extending beyond
the term or this Lease) and at such rental or
rentals and upon such o~ner terms and
conditions as LESSOH in :i.ts t:;ole discretion
tD8.Y deem advisable with the right to make
alterations and repairs to said premises.
U:,oon e8.oh such relc'"tting. LESSEE shall be
immediately liable to pay the LESSOR. in
tion to any indebtedness other than rent
diY;; r(:;l'.n(ier:
(a) The costs and expenses
fees and any real estate commi.ssion) of such
alterations and repairs incurred by LESSOR:
(including attorney's
relett and of sl~ch
11
20 l l:i
(b) The amount. if any. by which the rent reserved
in this lease for the period of such reletting (up to but not
beyond the term of this Lease) exceeds the amount agreed to be paid
as rent for the leaed premises for such period of such reletting;
(c) LESSEE shall: (1) Pay such amounts to LESSOR
immediately upon demand thereof. or (2) at the option of LESSOR
such liability shall be paid as follows: Rents received by LESSOR
from such reletting shall be applied first. to the payment of any
indebtedness. other than "the fixed minimum and percentage rate due
hereunder from LESSEE to LESSOR: second, to the payment of any
costs and expenses (including attorney's fees and any real estate
commissions) of such reletting: third. to payment of fixed minimum
percentage rent due from and unpaid by LESSEE hereunder. The
residue. if any. shall be held by LESSOR and applied in payment of
future installments of fixed minimum and percentage rent as the
same may become due and payable hereunder. If LESSEE has been
credited with any rent to be received bv such reletting under
option (1) and such rent shall not be promptly paid to LESSOR by
the new tenant, or ir such rentals received rrom such r.eletting
under option (2) during any month be less than that to be paid.
LESSEE shall immediately upon demand therefor pay any such
deficiency to LESSOR.
No such entry or ~aKlng possession of said premises by LESSOR
shall be construed as an election on its part to terminate this
Lease unless a written notice of such election to terminate be
given to LESSEE or unless the termination thereof be decreed by a
cour.t or competent jurisdiction . Notwithstanding any such
reletting without termination. LESSOR may at any time thereafter
elect to terminte this Lease for such previo1J.s breach. Should
LESSOR at anytime trminate this Lease for any breach. in addi~ion
to other rernedies LESSOH may have . LESSOR may recover from the
LESSEE all dama.ges LESSOR may incur by reason of such breach,
including the cost of recovering the premises., reasonable
attorney's fees. real estate commissions and including the worth at
the time of such termination of the excess. if any. of the amount
of rent and charges equivalent to rent reserved in the lease for
the remainder of the stated term over the then reasonable rental
value of the premises for the rremainder of the stated term. all or
",b.ich a.m01.mt shall be immediately due and payable from LESSEE to
LEi3S0R.
Any entry by LESSOR pursuant to the provisions of this Lease
[';11Ei1l be &llo'Fed by LESSEf'~ wii~hout any interference and LESSOR
shall not be liable for damages for any such entry. or be guilty or
trespass or forcible entry or detainer.
The notice of breach required by this Lease shall be ten Cl0)
days if the breach consists of the failure to pay money~ and thi.rty
(30) days if the 6reach consists or anything other than the failure
to pay'" rD.c~ne\~.
12
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J. ,.1
...,...
20. Attorn~Y's FeeQ
If either party shall commence an action to enforce any of the
terms or provisions of this Lease, including actions for unlawful
detainer or an action for declara'torv relief to determine or
construe this Lease, then the 108 ingparty in such action shall pay
to the prevailing party such sums as the court may determine as
.iust and reasonable as and for attorney's fees,
,,0,
21. 5.ur1-en~~
Voluntary or other surrender of i~his Lease by LESSEE or mutual
cancellation thereof. shall not work a merger, and shall. at the
option of LESSOR. terminate all of cmy existing subleases or
subtenancies. or may, at the option of LESSOR, operate as an
assignment to it of any and all such subleases or s0btenancies.
Nothing in this paragraph shall be construed as a consent by LESSOR
to the creation of such sublease 0 tenancies.
22 . R 0 1 <tinrz QYl;2L
Any holding over at the expiration of the term of this Lease,
with the consent of the LESSOR. shall be construed to be a tenancy
from month-to-mouth at a fixed minimum rental equal to the last
month of the lease term. and shall otherwise be on the terms and
conditions herein specified.
23 , fu2.r:.J:B.rtJir~Q.fJ-X:.B m:i s ~ 6 (ill_J3;;;{p -L r:atJ..QD~-L.T8 rm
On 'the .1aElt day. or sooner termination of the lease term.
LESSEE shall quit and surrender the premises. broom-qlean. in good
condit-lion and repair (reasonable weaL and tear and damagr~ by acts
of God excepted), "cogether 'Vdt.h all alterations , additions and
improvements which may have been in. to or on the premises, except
movable furniture and/or unattached movable trade fixtures
installed at -the expense of LESSEE. Speclfic8.11y, all built-in
catblnets. desks and shelves [;';1'1.'3.11 remain and become .the
property of LESSOR~
13
-) t .-,
i'':'' \ U
24. l.rJ.t;urance.
During the entire term of this Lease. LESSEE at its own
expense, shall:
A. Public Liabilitv Insurance
Provide and keep in force for the benefit of LESSOR and LESSEE
comprehensive general public liability insurance policies. in
insurance companies and in ',form of coverage satisfactory to LESSOR.
protecting LESSOR and LESSEE against any and all liability, in an
amount of $1.000.000.00 per occurrence to LESSOR and LESSEE for
both bodily injury, death or property damage incurred by reason of
LESSEE - s operation in. on or about the premises. Said policies
shall provide for at least thirty (30) days ' written notice to
LESSOR prior to cancellation or material change. The LESSOR shall
be named as additional insured on the policy.
LESSOR reserves the right to increase the required amount of
public liability insurance from time to time during this lease if
LESSOR reasonably believes additional coverage is required.
If LESSEE shall ~ail to carry any such policies. LESSOR. at
its option. may, but shall not be obligated to carry such policies:
and the amounts paid by LESSOR. with interest thereon at the legal
rate from the date of payment. shall become due and payable by
LESSEE. as additional rent. with the next succeeding installment of
rent. Payment by LESSOR of any such premiums or the carrying by
LESSOR of any such policy shall not be. nor be deemed to be. a
waiver or release of the default of LESSEE with respect thereto. or
the right of LESSOR to insti tut,e summary proceedings and/or take
such other action as may be permissible hereunder as in the case of
default, in payment of net rent.
B. Fjre _I.lliilJ...r:.a~
LESSOR agrees to purchase and keep in full force. fire
and extended coverage insurance covering the leased premises as
determined by LESSOn' 6 insurance COnlp,;:m,iT' (3 appraisers, which shall
be for full replacement value.
c. C&t-r~,~~SL~~1)rB.rJC;~
At the commerlcement of the term of this Lea6e~ LESSEE
eD.Gtl1 clel:tv'er to L:ESS{JE?, cert.ificates of inGt:tl~arlce marLj~fe8t.in.g
requ.ired coverage, arid at least thirty (30) days prior i,~o the
expiration o~ each such policy or policies. LESSEE shall pay the
premiums for renewal insurance and within such period shall deliver
.to the LESSOR the original policy or duplicate original with an
endorsement thereon marked "paid" and/or duplicate receipt or other
information satisfact6ry to the other. evidencing payment thereof.
If the original policy of any such insurance shall be required to
14
be delivered to the beneficiary of any moitgage or deed of trust to
which this Lease is BubJct and subordinate. the duplicate original
or certificate of such policy shall be delivered to LESSOR upon
request. LESSEE shall have the right to maintain required
insurance under blanket policies.
D. ~rkEU"~~OmDensati.on
Hi th regaxd to any Worker r S COIDPnsation insurance carried
by LESSEE, the LESSEE ag'!:'ees that it shall waive the right of
subrogation against the LESSOR ( or its employees. assignees or
agents). and such insurance sh8.11 provide for such waiver of
subrogation.
E . Na..i~j'......Bl) brQf? ~.Qll
With regard to any insurance required to be carried by
T..,ESSOB. and LESSEE pursuant to this Lease. both LESSEE and LESSOR
agree that neither shall have the right of subrogation against the
other (or its employees, assignees or agents), and such insurance
shall provide for Buch waiver of subrogation.
25 . loo~n.i.fh:1jLiQn
LESSEE shall indemnify and hold LESSOR harmless and defend
LE3S0R from any and all claims of liability for any injury or
damage to any person or property whatsoever incurring in1 on or
about the leased premises or any part thereof~ other than claims of
liability arising from the negligence or wrongdoing of LESSOR or
LESSOR'e: agent;.
2 (3 ~ QtiliJ.iJ.-"-sitt
LESSEE shall pay direct ly for vl'ai;er, gas, electricity and
telephone services and all other utilities supplied to the leased
premises. LESSEE shall also pay :Eor the rem:>val of all garbage
from the leased premises.
97
L. ( .
TJ.;l~.D_
A.
LESSEE shall pay before delinquency any and all taxes.
asse6sments~ license fees~ and pu'blic charges levied~ assessed or
imposed and which become payable dur the lease term upon
L SEE" B f lxturss .. I1..lrrli tc'tre , appliartces'l persori,:il pr\)pe
installed or located on the premises.
"I '(;~
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. ,
~7 17
'-" .-
B. Real Property Taxes--Lessee's'Prorata Share
LESSOR shall pay before delinquency any and all
municipal. county or state real property taxes assessed against the
leased premises and the parcel of land upon ",hich the leased
premises are situated, LESSOR shall also pay any local or municipal
taxes assessed on rentals or rental income.
LESSEE shall. during the term of this Lease, pay its
prorata share of all such real property taxes for the Shopping
Center ",here the leased premises are located in the proportion to
the rentable floor area that LESSEE's premises bears to the total
rentable floor area of all buildings from time to time completed in
the Shopping Center. whether or not leased. LESSEE shall pay to
LESSOR. wi thin fifteen (15) daYS after LESSOE submits a bill
therefor. LESSEE's share of such real property taxes. LESSOR shall
submi t to LESSEE a 'true copy of each current tax bill, and a
statement showing the total square feet of all rentable buildings
in the parcel represented by that tax bill. .
28. Kxcl1J.sivitv and Other Tenan't.a
LESSOR agrees that during the time this Lease is in force.
LESSOR. Hill not lease other premises in the Dublin Square solely as
an a!)tomobile supply paint st;ore.
29. QunoY'dination
LESSEE agrees that this Lease shall be sU.bordinate to any
mortgages or trust deeds that may hereafter be placed upon the
premises. to any and all advances made or to be made under them. to
the int;e:cest and all obligations secured by them and to all
renewals. replacements and extensions of them. Provided. however.
the mortgagee or beneficiary named in auy such mortgage or trust
deed shall recognize the Lease of LESSEE in the event of
foreclosure. if LESSEE is not in default under the terms of this
Lease. If any mortgagee or beneficiary elects to have this Lease
sl.1Perior to the lien of any such mortgage or deed of trust. 'ilhether
thls Lee\.se is da"ted or recorded before or after the mort.gage or
tru.st deed ~
LESSEE shall. at any time and from time to time. upon not less
than ten (10l days" prior request by LESSOR. execute. acknowledge
and deliver to LESSOR a statement certifying that this Lease is
u:nmocli.:fied and in fU.ll force and effect (or if .there have been
mOQLl ".Cc~.GlOns. thcli~ 1;;ne same is in full force and effect a'3
modified and stating the modifications) and the dates to which the
fixed rent and other charRes have been paid in advance. it being
j.ntended any ,::;uch I;;tatement delivered pl.l.rsuant to this 8v,bp3.ragraph
may be relied upon by any prospective purchaser or encumbrancer
(including as 8 of either) of the Shopping Center.
1.6
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30. Trans.fer o~eversi()n
In the event of a sale or conveyance or other transfer by
LESSOR of LESSQR"s interest in the leased premises. the same shall
operate to release LESSOR from any future liability. herein
contained in favor of LESSEE. and in such event LESSEE agrees to
look solely to the responsibility of the successor in interest of
Ute LESSOR in and to this Lease. If any security be given by
LESSEE to secure the faiifh:ful performance of all or any of the
covenants of this Lease on the part of LESSEE. LESSOR may transfer
and/or deliver the security as such. to the purchaser of the
reversion. in the event that the reversion be sold. and thereupon
LESSOg shall be discharged from any further liab~lity with
reference thereto.
31. ~~eglllatiQn.El
LESSOR reserves the right to issue such reasonable rules and
reg1J.lations. relating to the use and occupancy of the leased
premises and the access. parking and common areas of the Shopping
Center as LESSOR may deem appropriate for the best interest of the
LESSEE and other tenants in the building~ Such rules and
regulations may include. with limitation:
A. The right to clos~. II necessary. all or any por~~0n of
the common area. sidewalks. roads. access roads. malls and other
facili ties to such extent as m;:Sl.Y. in the opinion of LESSOR, be
legally sufficient to pr'event dedication thereof or the 8.ccrual of
any rights of any pEt'son or of the public therein and no such
closing shall be deemed an eviction of LESSEE nor shall any rebate
or diminution of rent result from such closing;
B. The right to control time for loading and.unloading of
merchandise and the placement and times of disposition of garbage.
trash and debris:
C. The right to designate employee park areas. LESSEE
shall abide by such rules and cooperate in the observance thereof.
Such rules and regulations shall be binding upon LESSEE upon.
delivery of a copy thereof to the LESSEE. The rules arl
regulations may be amended by the LESSOR from time to time with or
without advance notice, and all amendments shall be effective upon
delivery of a copy of them to the LESSEE. All rules promulgated
pu.rsu.arJ.t. to -this pere,graph shall be ap'pro'\red by' LESSEE before
~C{~~E, effec'"t. ~
17
32. Time is of th~ eSSence
Time is of the essence of this agreement and each and every
part thereof.
33. No .Joint. Ventl,~rship
Nothing herein shall be construed 8.S, nor shall this Lease
create a joint venture or partnership by and between LESSOB. and
"
LESSEE.
34. NotJnes
All notices. statements. demands, requests. consents,
approvals. authorizations. offers, agreement, appointment or
designations under this Lease by either party to the other shall be
in writing and shall be deemed duly given and served upon the other
party if delivered personally to the recipient, upon such delivery.
and if sent by mail, upon deposit in the mails, postage prepaid and
addressed as follows:
To the LESSOR:
Berkeley Land Company. Inc.
1211 Newell Ave., Suite 120
Walnut Creek. CA 94596
To the LESSEE:
Glenn Thompson
THOMPSON PBE. INC.
A Delaware Corporation
11819 Dublin Blvd.
Dublin. CA 94566
35. MJ.ver QL~ci1..
No waiver of any condition or covenant or: this Lease or of the
breach of any condition or covenant shall be taken to constitute a
waiver of any subsequent breach of such condition or covenant, or
1:0 jus.tify or authorize i~he non-observance on cU1Y other occasion of
the same or any other condition or covenant hereof. nor shall the
aceeptance of rent by the LESSOR at any time hereof be construed as
a waiver of such default or of the LESSOR's right to terminate this
Lease on account. of such default, nor sh8.11 any waiver or
indulgence granted by the LESSOR be taken as an estoppel against
the LESSOE.
~,\ 6 ~ C:.? 1:) t ii2J.l..Et
The paragraph and subparagraph captions of this Lease are for
the convenience only and are not a part of this Lease and do not in
any way limit or amplify the terms of provisions of this Lease.
lB
''''\ GI-ai1 Tnomps@rf; i
, Vice President / California Operations
:2-
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SupplyingAmelica's Body Shops.
4553 Glencoe Avenue #200
:37. Successors and Assignp, Marina de1Rey; CA 90292
(310) 306-7112 ph. / (10) 306-7271 fax
This instrument shall be binding upon and shall inure to the
benefit of the respective parties. their successors, assigns, legal
representatives, provided that this clause shall not permit any
assignment contrary to the provisions prohibiting assignment
herein.
38. l~pret,8t}QQ
The language in all parts of this lease shall in all cases be
construed as a Hhole and simply according to its fair meaning and
not strictly for nor against the LESSOR or the LESSEE. and th~
construction of this lease and any of its variol.l.s provisions shall
be unaffected by any claim. whether or not justified. that it has
been prepared wholly or in substantial part by or on behalf of the
LESSOR.
39. InyQ].i.i).j tv of Pa:rticul_il.L-ITOv.ig,j_oIL
If any term or provision of this Lease or the applicability
thereof to any person or circumstance shall. to any extent, be
invalid or unenforceable. then the remainder of this Lease, or the
application of such term or provision to persons other than those
as tc which it is held invalid or unenforceable shall not be
affected thereby and each term and provision of this Lease shall be
valid and be enforced to the full extent permitted by law.
40 . G.c':.Y:S:J:":..n.ing La Fi
This Lease shall be in.terpreted and construed according to,
and the conduct of the parties hereunder shall be governed by, the
laws of the State of California.
[t.Kf"..5.Qf< :
L.El!JiEE...L
THOMPSON PEE, IN[~
A DeJJ:H-Tft(:fe):r Co:r..pcf;faticm
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BERKELEY LAND COMPANY. INC.
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19
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Berkeley Land Co., Inc. ("Lessor") and Thompson PBE, Inc. ("Lessee") have entered into a cert~n lease dated May
12, 1990 (collectively the "Lease") for cenain premises located at 11819 Dublin Square" \~~ek, CA; as
more specifically defmed in the Lease (the "Premises"). Lessee now desires to transfer and assign to FinishMaster
Inc., ("Transferee") all of Lessee's right, title and interest under the Lease, and Lessee and Transferee desire to
obtain Lessor's consent to such assignment.
r
A~~IGNMENT. ASSUMPTION AND CONSEN1
Now, therefore, Lessee and Transferee, for mutual consideration and intending to be legally bound hereby
agree that effective on June 30, 2000 (the "Effective Date"):
1. Lessee does hereby assign, transfer and set over to Transferee, its successors and assigns, all right, title and
interest of Lessee under the Lease.
2. Transferee does hereby, for itself and its successors and assigns, and for the benefit of Lessee and Lessor,
covenant and agree that it assumes and agrees to be bound by and perform all covenants and conditions,
obligations and duties of Lessee under th~Leasc, whether or not they have accrued prior to the effective date of
the assignment.
3. Lessee and Transferee hereby accept Lessor's consent under the conditions set forth below.
)
~\ c_I~~mlpson PBE, Inc. /
By _ ~"''1.:fl-:t- ~, {V~29_~
Print Name: Robert R. Millard
Title: Vice President - Finance
Lessee
I
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By ~'~, . _1 ~'" , I . .-'y. . - '
Print Name: Robert R. Millard
Title: .fu......YP - Fina.nce
Transferee
In consideration of the covenants, agreements and warranties of Lessee and Transferee as set forth above, Lessor
hereby c~mseDts to the assignment of the Lease to Transferee on the following terms and conditiow;;
1. Lessee shall remain liable for t11e pen01mance of all of Lessee's obligations under the Lease, as it may be
arnencled from time to time.
2. Tramferee shall operate the Premises 10r the remai,,'1ing term of the Lease pursuant to all of the terrflS and
cGrlChtions set f01th ill the Lease.
I
. rkeley Land Co., Inc,
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!:'rlnt J:~an1e: _ rfl ~..,.,.ita...i?"rt.'.(... ~".. I" ( M. 'f'~Ji*
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Lessor
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EXTENSION OF
REAL PRQPE.BTY LEASE
Parties
This Agreement is made between BERKELEY LAND CO., INC, a CaIifamia corporaiiall
("Lessor") and FU.:rrSHJ:vlASTER, INC., a corporation C'Lessee'}
Purpose
This Agreement is made with reference to the following:
A. Lessor a.l1d Lessee'spredecessor, THOMPSON PBE, INC., entered. t'vvo
related real property leases by which Lessee leased space in the Dublin Square Shohlng Center,
located Oll Dublin Boulevard, Dublin, Califorui,!. o'ilVUed by Lessor, as foHov/s:
1. Lease dated April 1, 1995, for 2,600 sq. ft., described as 11819 Dublin
Bouhwurd, for an initial term of five years, commencing April 1 , 1995, and expiring J\1arch 31,
2000 (the "11819 Lease"). The 11819 Lease 6rranted Lessee one option to extend the 11819
Lease term for five years, \Tv-hich. was not exerc:ised.
2~ Lease dated September 12, 19517,'for 1,470 sq. ft., described as
11815 Dublin Boulevard, DJI' an initial term oft11irty months, commencing October 1, 1997, and
expiring 1.,larch 31,2000 (the "11815 Lease"). The 11815 Lel:1Se contained no option to extend
its term.
B. Upon the expiration afbath Lease tenns on the dates set forth above, Lessee
continued to occupy the respetive premises described in the Leases as a mOl1th~to"moJ1th tenant,
in accordance .with Section 22 of the 11819 Lease, and Sr)ctiOl1 19 of the 11815 Lease entitled
"Holding Over",
C. Less(::e alId Lessor have treated both Leases as one single Lea.se.
D~Eftective Jurle 30, 2000~ I110MPSC)N f.t'fCQ assigned. the 11819 Lease to
by a vvrhtenagree;_-nent entitled "Assignment, Assumption and CO:1sent," to which
/, The Assignment was intended to refer to both Leases.
vvhereby the Assignment
combined, the term)f
be
1-1ease8
be
the
[leas::,; sllall
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~ement
Therefore, it is AGREED AS FOLLOWS:
1. Assignment Includes 11815 Lease: The Assignment is deemed to include the
11815 Lease, so that the Assignment refers to both Leases.
2. Leases Combined: The Leases are deemed combined into one Lease for all
purposes after the date oftrus Agreement (the "Leasen).
3. Extension of Combined Lease: The term of the Lease is e:h'tended for a period of
tvvo (2) years, commencing January h 2002, tbroughDecember 31,2003, and expiring on the
latter date (the "Extended Term").
4. Rent: TIle base rent due under the Lease for the Extended Term shall be as
follows: January 1,2002, through December 31, 2002: Four Thousand Dollars ($4,000) per
month; January 1,2003, through December 31, 2003: Four Thousand Five Hundred Dollars
($4,500) per month.
5. No CPI: In view of (he specified rent set forth above, the Lease shall not be
subject to Consumer Price Index rental increases during the Extended Teml.
6. Other Terms: All other terms and conditions of the Lease, including the Lessee's
obligations regarding common area maintenance expenses, insurance, and real property taxes, as
well as all other obligations afthe Lessee as set f01111 in the Lease, shall remain unchanged.
Lessor:
Dated:
~lj~
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I"cusee,:
Fn,rrSHIv1ASTER, INC., a corporajon
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~ I. I
LEASE AMENDMENT
THIS LEp..SE Z,.J.'IENDr"iEN'r to Lease executed on April 14[ 1967 f is
executed in duplicate at Pleasanton1 California this
9th day of
Hay
193iL, between BERKELEY LAND CON:PANY I a
California Corpora'tion, hereinafter referred to as Lessor rand
COMI1UNITY FIRST NATIONAL BANKl a Corporation, hereinafter referred
to as Lessee.
RECITALS
WHEREAS Lessor and Lessee have entered into a Lease dated
April 14, 1967 for a portion of the real property in the Dublin
Souare Shopping Center more specifically identified in said Lease,
and;
WHEREAS said Lease was extended by letter dated December 5,
1986 to and including October 31, 2007, and;
vJHEREAS Lessor intends to make certain :modif ica'tions 'to t.h,e
Dublin Square Shopping Center to include, a fascia and signage
upgrade of the cerl'cer t s exterior along wi i:h relat::ed parking lo't r
lrmdscaping and lighting improvements that will significan\_ly
enhance the center's appearance; and
~TtIEREAS Ltessee rlesires to expa.nd4 i"ts
lding by
ly
one th",)usand one humJred (1; 100) square feet on T,h.e parcel of land
is t:he
of 'the Lea se i
~.JO~\' r ~CI-IJ~~RI~FC)I~E; ? Iff
AGREED between the
l1erE~t.o a,;::~
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F;.VDI J.._: ~1?50\LE?:.sI::}>.IW" Cf:.'S
3/5.'90
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1. Paragraph 2 shall be amended to add the following
provisions:
Upon completion of the expansion proposed by Lessee herein
(which shall be defined as issuance of Certificate of Occupancy by
the city of DUblin) Lessee shall pay to Lessor, in advance, at the
address set out after the signature of Lessor or at such other
place or places, a monthly rent of Nine Hundred Dollars ($900.00)
to include payment in full for parking rights. In addition, Lessee
agrees to pay their pro-rata share of maintenance of common parking
area, landscaping, and lighting, not to exceed $100.00 per month.
said sum shall be due on the first day of each calendar month in
lawful money of the United"States of America.
Notwithstanding the above, Lessor further agrees and
acknowledges that said increased monthly rent herein described
shall not commence until such time as Lessor has completed all
phases of Lessor's proposed modification as outlined in the
attached letter of January 12, 1990 by Elmer H. Hansen, to the
Dublin Square Shopping Center, of which the subject property isa
part. Completion of Lessor's project and the concurrent
commencement of monthly rental obligations shall be evidenced by
final approval of the city of Dublin and recordation of a Notice
of. Completion by Lessor. Lessor further agrees to complete its
improvements on or before December 31, 1990.
2. Buildina EX.l2ansio!1. Paragraph 4 is hereby amended to .add
the following additional provisions:
(d) Lessee shall be permitted to expand the existing
bank building on the demised premises, at its sole cost and
expense, to provide for up to an additional 1,100 square feet, more
or less, together with all necessary fixtures and appurtenances. ~
Prior to commencing construc.tion f Lessee shall obtain
Lessor! s approval of the plans therefor, prior to making such
alteration, improvement, addi.tion or change, ,,-lhich approval shall
not unreasonably be INi thheld by Lessor. Lessee r at Lessee! s ovm
expense 1 shall comply ".Ji th all present and future governmental
requiren,ents relating to the leased property only, arising out of,
in connection with, or necessitated by such alterations except as
may ot:henvise be established herein.
(e) Lessor a.grees to cooperate fully with :Lessee l' s
planned expansion, pursuant to the provisions and obligation of
both t.lle. Lease and "chis Lee.se A.mend111ent.. Lessor agrees t.o
c0op8rat.e with Lessee;: t.Q obta.in approval of t.he cit.y of Dublin.
I..I8fJSOrt s (,.;oclr.H~ra:tiorl stiall incllldf;;: r but ~not be li:mit:ed t:o .t:.h.~::;
preparation of traffic engineering studies, application for
\72riance( s) for parl:ing f and such other it:ems as may be required
l>.:VD! 1... ~ \i}P=,O\I.1:;AS!~A~J)" CJ?B
3/5/90
-)
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by the city of Dublin.
(f) Should .the expansion proposed by Lessee herein fail
to obtain the necessary City approval, the provisions of this Lease
Amendment relating exclusively to the proposed expansion will be
of no force or effect.
3. Paragraph 9 shall be amended in its entirety to read as
follows:
9. Assiqnment aDd Subletting: Lessee shall have the
right to assign, mortgage or hypothecate this Lease, or any
interest in this Lease, or;'permit the use of the premises by any
person ':.\r persons other than Lessee, or sublet the premises or any
part. thereof. No part. of the leased premises shall be sublet for
a llU:cpose which is unla\<lflJ..l f dangerous f noxious or offensive. Any
such assignment or subletting shall not be for the conduct of a
business that would direc.tly compete with that of another tenant
in the Dublin Square Shopping Center. No such assignment or
subletting shall operate to relieve the assigning party of any
obligation or liability arising under the terms of this Lease
unless the other party here'co shall specifically agree in writing
that. such proposed assignment shall so release the assigning or
subletting party.
4. parEHJI:caph 10 shall be amended in its entirety Oeo read as
fol1o~vs :
10. QQt.1pn .to Pu:x;:r,;:hase Bull diner: Lessor shall have the
option to purchase Lessee's building at Lessee F s unamortized cos.t
in the event of des.t.ruction or condemna tiOD as provided in
Paragraphs 12 and 13, should Lessee elect to terminate this Lease
und ;:' t.he provisions of said paragraphs 0 In the event. Lessor does.
not elect to exercise its option to purchase under said paragraphs,
Lessee shall have the right to sell or remove said building. In
. ev~nt'.i if Lf2ssee does not se.~l or rE~~ove ~;aid building, then
stwll t)eCOID8 the propm:ty of Lessor, ano. Lesso~ agrees to
iC.ld.emrli and save LesseE; harmless from and against any and all
claims arising from Lessee's lure to remove said building from
said lan.a by any person or, t.o. a~:ry. prop.e~t:y t and frr;m anp ag~inst
all. CGsts, expenses, and IJ..abJ.LLtl0s 'lfmlch may be J.Dcurred :i.n or
COlClection Jch any such elahT! of proceeding brought thereon.
such E:lection by e1. tner party shall be made
t:ten :not:.,::;e from one to t:he oOcher, on or before thirt:y
(30) the mut.ually agreed termination of t}le
I~!:~';a.Sf:: ~)].:- tl1C~ I1D..t:ura>1 "tion of tJle t.er"rn (1f tr1.e Lease or tX18
renewal the to rel1ew e){ercised. by Lessee~
-"
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5. Paragraph 21 shall be amended to add the following
provision:
Lessee is hereby granted and shall have, if not at the
time in default under this Lease, an option to extend the term of
the Lease for an additional period of fifteen (15) years only from
October 31, 2007, but othe~lise on the same terms, covenants, and
conditions herein contained, provided however, that rent shall be
adjusted to the then current fair market value as defined below.
Thereafter rent shall be subject to adjustment every three years
to an amount equal to the lesser of (i) the change in the Consumer
Price Index; or (ii) seven percent (7%). Lessee shall notify
Lessor in writing not less than one hundred eighty (180) days in
advance of the expiration ~f the then current term of its intent
to extend this Lease..
6.
Fair Market Value.
"Fair Market .Valuen shall mean the
fair market base rent as defined below f at the time or times in
question for the premises, based on the prevailing rentals then
being charged .to tenan'cs of ground leases in the general vicinity
of the premises of comparable size, location, and under similar
circuwstances as the subject premises.
7 0
Determination of Fa:L;r Marke.t Vallill.
Lessor and Lessee
shall endeavor to agree on the fair market value.
If .they are
unable to see agree \iJi thin thirty (30) days after receipt by Lessor
of Lessee's notice of exercise of its option to extend, Lessor and.
Lessee shall each designate a licensed real estate appraiser who
is active in the leasing of office space in the gene:r:al vicinity;
and the bii!O real es.tate appraisers shall mutually appoint a third
appraiser similarly qual
. -
:U3o. .
The three appraisers shall then
de"cer:min,e the fai:c market value by majority vote, and this
determination 51:10.11 be binding on the Lessor and Lessee.
Lessor
and Lessee shall each :bea.r 'the cos.t of i'cs appraiser and s1:1o.11
sJ:lal"'e eqllal
tIle cost. of
third appraiser.
A.VD/J..: ~>JP~>O\LEA::-";E",\_HD~ ern
3/5/90
4.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease
p.mendment on the date first above vJri tten.
BERKELEY LAND COMPANY,
A California Corporation
l!Y: -&1" _4;:,*
By: ~
LESSOR
COl\:lNUl' -TY FIRST NA'I'IONAL BANK I
p, Cor;: oration
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That parcel of land in the Townshi? of ?leasar.ton~ County o~ Alameda~
Stat& or Ca11rornia~ dasar1bcd as to~lOW6:
Beginning at the point of intersection of the southeastern line ot
the State Highway trom Hayward to Liver~ore with the southwes~e~n 'line
'" of the parcel ot land designated as ?a:>cel 2 in the d.eed to
H. .E. Oxsen recorded June '1o~ 1936 in Book 3317 OR~ page 470~ J..la:t.eda
. County Records; thence along the last named: line south 210, 151--east_
1J!~ teet; thence north 680 45' east 25 teet to the actual point ct
· co:n.."'Aencement; thence south. ~Uo 15' east 90 teet; thence nor:h 680..45'
" east. SOreet; thence north' 210 151 west 90 :t:"'eet:.; thenoe south 68Q' 45'
Best sa teet to the ac~ual pOint or oommence~entq
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T~Hf,: t~ NOT A ~U~V~~ a~~fMC k#.N~, ~IJJT t" CQ.-ol:~H,;t';,} (o.~Q,j..~ "At';., fr~'1~~fN (U'( tl'U:FL.UH"t<: ~:c;a":':t::G
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BERKELEY L4.ND COMPANY, INC-
l.21l NEWELL AVE. SUITE 120
WALNUT CREEK. CA 94596
PHONE: 256-1108
72-
p-.
January 12, 1990
Robert Cq Philcox, President
Community First National Bank
749 Main street
Pleasanton, CA 94566
RE: Your Revised Lease ZUnmendmen't at Dublin Square
(Received 12/19/89)-
Dear ~rr. Philcox:
I met "lith Hr. Sabatte (LESSOR) and lY".u:. William Lane (Architect)
regarding the above subject. Nlr. Lane displayed his revised
rendering ,-,rith asso(:dated cost estimates. p~fter st.udy cmd evalu-
ac~ion{ Mr. Sabatte made the follm.ring firm decisions:
A.. We will not expend at t.his ,time, nor in then,ea.r
future, the total project cost as outlined by Mr.
Lane.
B. We 'will r in the spring of thi.s year f complete
Dublin Square visabi.li ty imprC?vements r viz:
Landscaping, per N.Lane
Uniform signager per W.Lane
. Exterior painting, per W. Lane
. PI1L~beryexterior work to satisfy prior
city mandates.
We have '?ilery intention completing the above
phases, as noted.
C. 1:.1r. Lane 1 s revised rendering is available for your
perusal. Your architect: can use same in order to
ha.\re design compa..tibiLL ty in your bank expansion plan.
I conceive of no reason why you
pausion plan. , your
a.s 1:01.J_ows:
cannot nmv proceed "I"ri th your ex-
t should be
's proposed
let.ter of
nas
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:Ela.r13e:n OJ H
a.
5
in.81 ude ~, ReIl.t tCJ b(~ aclj L1st,ed. -to
to exercise of option, etc~
22~
Robert C. Philcox
Community First National Bank
January 12, 1990
-Page 2
Include
Rent shall be subject to cpr increases every three (3)
years, not to exceed 7% each time.
Mr. Philcox, r feel that we are coming closer to our objectives.
Call me if you have any questions at: (415)837-41D5 (after 3 p.m.)
(415)256-1104 (Tues. or Thurs.)
Thank you for your patience.
Sincerely,
BERKELEY LAND COMPANY, INC.
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Elmer B. Hansen ~,
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cc: F. Sabatte
,}. Saba tte
\fi., Lane
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wl1'\l'D LEASE
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Lessor and Lessee, without regard to number or gender.
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I'l' IS I\GP-EED between the parties hereto as follovm:
real property situated in th~ Dublin Square
". \' >, '. i . ,.,t.:'!'
Shopping Center, on Dublin Boulevard, Du.blin, Alameda County,
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California,"S'O ;x: '90 feet, more particularly described in "Exhibit An
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attached ~ereto and made a part hereof.
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2. TEm"! Al\1D RENT:
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The
term shall be
for
tvNmty (20)
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rent 07; sum of Tv-TENTY-SIX THOUSAND 'l'HP-EE HUNDRED Ti1ENTY-T:~REE and I
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20/100 DOLLARS ($26,323,20), lawful money of the United States, !
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ONE HUNDRED I
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NINE ,md 68/100 DOLLARS ($109068) on October 1, 1967, ONE BUNDRED I
NINE and 68/100 DOLLARS ($109,68) on the first d.av of each and I
every month therea.ft:er until said. total sum of 'li11E:'iTY-SI'X TR~USAND i
-c, '..-, . ,.' ", , . i
THREE HUNDRED TWENTY-THREE and 20/100 DOLIJ\RS ($26,323.20} has been
~ONDrTrON2' This lease is subj.ct to the fOll~Wi~gl
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and a.r:)pro\7al of a.ll federal ~ sZ'.ate! coun:ty e.n(~
o.g'encies having juri8dic~-ion for the c,~nstruc1
, mi1intenance and use o:E a camrrrercdtd ," I
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years commencing on the first day of October, 1967,
a t a tota.l
wh:Lch ,sum 5ho.11
be paid in installments as follows:
paidq
cond:ttions:
(a)
That: L(-;ssef:
receives
the
nec€:ssary
pe :rrni ts t
a.uthori
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tion:
en th:3
real property described herein&DOVe,
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lrha t the
Comnt:~o 110'; r
of
the Currency of the
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Stat:8S I'
O'~ other bank
elutho:r:.:L t.y
Sfi: an t4
I$csseo f n01',,1
!~eloca.t.e the.
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an existing 'deed of trust on the'entire:J;)ubl:j,n :Square
Shopping Centerl as to the portion,of said Shopping
Cehter:to'be'leased by Lessee, so that :(.,esseets.J.~f!f:H~-
hold itit.erest "dll, be prior,' superior and parel\\ount to
the"He.m"of any fuortga.ge or deed; of. ' trust ,which:may now
7
'".'. 'or he.rea'fte':ttaffect Lessor's fee interest., in the" l.,easec) ,
8
property Or'any part th€lreof~
In the event, ,Leasor" is" '
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unable: ,to' obtai.n such a release, this lease shall be
10
null and void.
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"If' any '0'1" t.he 'foregoing governtnent'al. agencie,s' shquld
12
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prohibit.,' enj'oin or 'penalize Lssseein t.he' construction F ereotion,!
maintenance',: "or use bfsaid premises by Lessee , Lesse$ shall .have I
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the 'optiori""t'otreat. "this :lease 'as null and void.
In "the\3yen'c
Dublin Square Shopping Center, described
hereinabove f to' be leased. by Lessee, 'j:rom the ,e~dsting Deeq: of
so that Lessee's leasehold inter,est
as,
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deed of trust, this lease shall be null and voi.d. Lessee shall !
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give notice'in.,,'ri{:inc to J..essor of anv such election under this i
paragraph' '^'ithin t.h1. ,::y: ($0 j days 'Of t~e, date that I,e$see recei v'ssl
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knowlt9dge of 'ene failure., of any of ,t.he condi t.ions contctineq :,herein{,
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L'3SS0:r: agree:;r t~o gl:ve 'not2.:ce to Le$a;ee 1.n ~n~J. t.:Lng ,'iJ..'C .lU 'S1.K~Y' I
, (60)' days' from the date .of the 61\e,cution, o,f this lease <:+$1:0" I
contained iie'rein shall be prior, superior "and ':pararllo~nt :.to said:,
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:'et:S!::le" $:..a11 at: hJ.s:, sole cost, and expense", COl\1
a ba.nk building oL2 ,000 fE~et, mo;'~
~cLth z,j.::,' necoeE:ary fixt:urerJ T /:tnd i'l.ppu)~'i::e1.~ances. j
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'i;lhethe:t or' not.:the holder' Df ;:;~dd, deed of tru$,t; "ill !H1bordinat:e
to' Lessee:' s . interest' as contained
n01':e.l.ll$
- CONSTRUCTION BY LESSEJl;: I,
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CaY
l.e;s;s"(' - toge"the:e
Const:t':uction
to
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be d.iHgent.l:\:". prosecuted
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subject to delays covered herein below { and delays, con,s:I}'ced to byl
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or materials, Qrre,asonable sJ.lbsti tutei1l ther,e.,~()x:, g.oller. nmen.ta1.., ~
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enemy or )loii):ti~.e .iSli;?vernmenta+. acti,on.' civil. ,c?mmS'tior>. ~"fir~,.?r 1
other, ca~~al!:y <," "11:d~9u:e~ ce:use7. bey'on?, t;h~~easo~7bl~ .. g~~ ~~?J:, of I
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bureaus haying j1J.risdict~on thereof, .t~ssoragreesthat: Les3ee, I
shall be .p!2:rlr\j.j:.teSc.}:oc conn'i'.c:t wi':;:h th"" existing se\'ler ~ ~~at'7cf,< and I
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by Lessee on the land described hel:ein
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Lessor.. Any f.reV,6]1t:,.iC?n, .-;ielay, or stoppage due, 1:0 "stri~es,
walkouts, .l.al?o:; .:dispute,s, acts of God, inability. to qb;:ai,n .labor
' . ".., ..' "".. ,
r.estrictio~s l governmental regulations, go~ernmeI!tal ,co~tro,!s I
the Lasse,~ r :?h<'i,ll, ~xcuEle pel:forrnance by it for a period equal to
any such pr~ve~~t;~o~~t(,:delflY or, ~topp~,~~ ~ ~
..-,: "I ~ 'C ,.~ '. ':;
. , -', ~., c.,. i ,'. :(~L: ~r;. . tp.~ cons tructiC:I1 ,~f/ sai~ bui~,~in1!,,_: Le~~ee
shall.col!lP~y,,,\c!i~J:1,,:!~,l~app'l:Lc;ableF,,:deral, StEt~, ~ounty e ,,!-pd
~ . ". -.
Municipal1aws"<4'1.dJ.FE1,,?sf)~nd regj.lla::ion.s o~;: the de;J?~r::ru,e!1,~r and
electricclin.8?,alreadyon the
prope:r;'~Y
of. the Lesse));: 'itli thout" .
chargE: :'
.. (0)
br'.;Lldin,s:.to be
5110.11 r~main.: t~:::t~~:~~~}':~jo~al: propE::t:ty' of Lessee an~5 ~hall no.:!: become
CI. tiJ:turs.
'., .,'-
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,!~TL~..:._A:I.'P SrJBORDINNl'WN: Lessor r~pres~l'lt:s and
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tol
\tlc;;t-;~iU1tS. .;tp.,q.,:~..
to said real .property and }~,,'.s.
,;l\.1t1~{):ri t~y,
,.~.):~t.o .t;he .1ea$e hc:.rei.~l ~ Lesse.e desires to
obtain E;,
: p015,c? y{i.th respe.c:~. 1:;,0., its, ;Lea.s'!3hold
es t.at:e..
:to
's lea.sc.;:hold es;;,ate shall be delivered
i:;,
a.ud
for C(JVen2mts ( <:ond.i.t;~ons r.
if.J
~r5:ghts ani:: right.s oJ; way o~
of:which!shall b~
:. t.o thE~ E!-pprov~l..,pf I.essee
(lL] ):' C:1 ~\ys
rec(-;;i]?t of a Dr~+~~~lilFto~:Y ,tit:l~
em t.b:"l
, -,
a,DOY0} -o'('i!,:,:
Title sht~.11
;],lS0 be
t>~)
t.u:xes ~ Ti t~l'6:
if
h\l' t.'~::B dE~C, ij
expense",
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3
4
5
6
7
8
9
10
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12
13
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15
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II
17
18 JI
19 II
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20 I
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22 i
23 I
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6 . TAXES,.. I.e. see ahan, in addition to all ,,~ the a uJ
agreed ,to ,be paid 'by, it, under 'this lease , r pay all' ~tear and " 1
perso~al propert:ih taxes that shall i during the term' of this "lease, I
be aSk1lessepaga.tnst':t:he demised" premises'.':, Lessor aild, Lessee' shal
each initiate pro'Ceooings :trJith the Assesso~'~~ 'th~:,~~~ty'!o:e
Al&mada to,segJ!'egate',the:demised premises from the area'lth6wn as
the ',. Dublin r Square';'; , t 80 ttlttt,> a separate~ tax '-'5111':'wilJ: ,) b~ ' rE\oel ved
for the 0 demised prOBm:!,S$fl:~ ",~
L '~. '
',I <:' ;.... ;..i -:1.~ '"
~ :'.~~ t' '-.:n r.:l.t ,:,.
...: !.., Co~,'
7.1i1 :eAHKING;:AREIU:'o.:ttis'understood and' agre&:d'""tftat the
Q~J.i.'1 Scau~rGJ :'ShQPpinSP~Canter ,:is 'presently' peved, 'lighted:aAa:
marl~e9. -.,i th van,: adequate r,parlHng- area.,' That ':sai(Fpa:r.king':i3:fea~i.ii -r
operat~c\"al\'Lmaintai!fecl ,-by 'Lessor and -,is: for ,'thG! parking .:6f :', :, I
b-ll -F" ".,.."., ..' C' "'\'0", ,,'
auto)Uo -", es IIJ),";'.lpatrorrS'O.f ."the ,DubJ.l.n Square :,,;>tlopp.tng enter',' J:U- ',!
cludiJ;,lg" Les,Olee .::(': ~'es.$Ge."..$' .;patrons sl1a;ll have 'the ',righ'li,"to-'usei ..,the I
parking rarea,o:t; t'lle Wublin :.:Square 'Shopping, Center 'for: 6usi6rrler t~; I
parl;;i,n,g -tix;,: ad9i:t~on.,to,t:the' portion"or the DUblin 'Square Shopping I
Center that i,s,yle.aaed.,by iit;"-he~:eirl. J-,es6ee\~r agents i""t~mplayees
and officers j3hall",not ''UEna .';;116 DUblin SqUare Shopping Center";'"
eJ:c8pt in :the event,jthat:, such an area may, be set-'aside 'for' shell ~J
- '~ I' \ ."
PU~pose by, Lessor:, 'NG~k~Rs-4fl-~fl46-~~~se-6~al~_~e~~~~€~_e~' ~'~~ll~
t;.~ -
P~Oh~~~~ssqe_~.gM-~~PQa~A~-aRy~~eR€e_e~_e~He~_~~~4e~~_4R€~~J~ l1~t
\:1/1'1 VI
~Ug-Wi~ho~-~~~.~a~,Q~~~he~~~~€~Ae~~eg~a4~~G_e~e~~@'_~he_~e~~4~~'~ I
o~_ .tht:.:"- [)ub.l..in.;,. .sq~a~e - 1i3.aepp'ing- €0Jn-t.ei,,:" .;he-a,sea:'" ey-'4-.-t." "
Operatihgand maintenance costs for any and 2.11
existing pa:rking'a:t:E!~S)':tLs ,of ,the dilte of the exe'c'titicn of :thls
lcas;;;-:' ,shall be:,porne', by. Lessor,: and shall lnclud~' wi thout . ,':;' , ,',i.:'_"
1,i.l1lit;:-.ti0l1,' lahor n,iJ.1Sllrl:'lT.lCe ,:,'taxes, ;materials ,:' gUpplies-a.ncf'"-'all
othe,r ,r,:osts. of ope:t'a,ting :and .repairing r lighting', clea.n:.Lng';-i [,:
paint:ir;,g:,,, remov"i..ng, of- 'rtl.t.lbiSh,'0r 'deb::ris I polici.ng . and, inspe'ct.in'J.'
8. ' USE:,: .Lessor ,shall not use, OT perm:;.,::', <'::>r a11m'! any
c~ther pe..rson
to . uZ:1e~. eI.uy pO~t'tir}n 't.of ~;he r Dub:~in; -Squ.are
Hhopp1,n~J' .
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--"~'M...<:.!.,._.i!;'i~'4-:';l~'~1i;;.::rt-:~~")'l't'.>!' _,!
. !:.;
Center
on '''lh..teh
the demis~d premises
ax'!.,: ci part., fo;:. a hank~ ',.
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7
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15 II
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16 Ii
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18
19
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20 I
21 /,
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22 I
23 'I
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24 11
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25 II
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26 'I
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27 II
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28 )1
29
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30 11
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31 II
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,',,~.l ;'1$1'::;' ASfJIGm.wr::!T Jl..ND'SUBLE'I"1'ING: .Less!;!e 'sha.:!.;!" n<ilire ;t.he
righi:::';-to'\(asid:gn\ '!ncll::tgage or hypothece: tethis' leazl/J! ;~oromy in-
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opt'ion to FH:i:tcha:s~ ';~liH,,1~U)j , $.l:;n:;:Udi.ng',': and 'r.$$'see is .w; able .d;'O.L . i
<i;ms:i.~ 'or."'~nilil~et}..eliiid:"premise9 "on, reaSon<1!.ble.term$,'for'tha'purpo$~
of'e, hemk~ L€l'I"H!lee;'l\\E\Y'&$l!1;J.gn O;:,f21ubJ.et till"or, any. pllJ,rt.:.of' Baid .JI
prc-!!mis('Js {providit;:g , eu6h.a$s~;gl1mel'i.t or':sl1.1bletting. :'i"pto \ a: husines '
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the cCindttct: of d.' Duslnemlil that would dirsdtly compste' witht.J),tJ.t o~
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this lease;.unli;Gie!'J;I.~_ Oth0Z' party h~:1:'~tc shall I",pec:l.fioally,...ugree I
in ....":citlng' liltttlh.proposedas&1i.gnm.'nnt "halLso release:.the, I
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'the't' ,iat€~ of. !"@oeipt of:.- such '~!r.',"./t:t.len i
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' fr.-don' [,.e:'il!'iJlii~ ,0' zh~;Il; have. .to. .the build.:tnJi
. co",t.~ ~ : \! Ili the o~leht I,'2i$80r, aTI;OUld ,,','c r
In. t.he '<1;1?<:mt:: ./
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:{)P~.;j,-'::Jn to p't~~rfJhtzS1$ r ; thi_s, 1, ~cte~ 't{11aJ~'1 .con 't::tXA'i,j;~ 1
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.~ .............."".<"~ ...."""..R..t<{~~;~_:/v ~<;&:
teies't.tfri:t:hia'!~:;:e'ase;':or permit the'use 'of' the 'premises 'by ,any
pcir80n'6r:~rli9onti' other' thl'1n 1.,eBae""~o:rsublet t.hetpramislillS/.. or
or its assigns
par"2:the~eof ("1provided..t.nat in the 'ev"$nt 'Less$e/should -ce&se; to
CO!ld'uct O,tii'e:'o~';t\titioria ora. .bank, on ithe'designatad'pzemis-es/'
Less:o:n:' J"!l1hall:ha~S;tlhs;oPtion::'to 'Purcheo.$c L<9l!ll!iee's btii.lding in
accordance ~11 th' lParaq1'aph1.0 'pertaining d:d Qption, ",!:c'purohase
l::iul1dirig;"; It,.t.!',d,ltlterlt' Lossorn:1.oeEl'lot;,el@ct,to exercise j~~s
that - ~loGlg: riot comp.ete withe an'<<<1!iSt1.ing 'l:msinafilfl' ,in: s&id '~Dlablin'
SquarEi"Shopplng Cr",ribSd:." ..NO part 'Of the ,1eSl.i\H:Hl~ prenu&€!!1Jishall. be
sublet:; fo::,"'ii "!;l\.1.t-p~lje"';fhioh i.sunla~rfu:J:faimg0rOus,. no:-d.cn,'lG or
cffen~i~let'
1',.nt"iiiUCh"oi.c;signment or I1:t1.bl~tt;i.ng'1;,(h~ll; not bei'for
'')
t~
another
'. ifi~,..tha <btiblin nqu.arE'a"'-Shoppin~J ~Centar~;
No:~ fJtlCh
,:.l;....J,.
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; g:hall ff>perni:~ tC~;'relietlm' tJl\~. ,s'szignin.g
party' of
i:mY'Obl:tg&tiot/.>or'-liRbilit.y 13,ris;Lng. under t.he terms of
a.-Bsi:;p::Lin~r7 or
SW..l.1i1tttJ.ng !flart}'.
tC~1i
b)?~!~!mCHi{SE pur~;:N~j;.', :In' the event ~iJ)",ee
uhr)uld
G'on-dtic.;.t "'ehe
bf. a:. bani\: , on t.he'" d!'!;mis€ld
prend.t%'$$l'
L0Ei0e~
giv~.l
!{;:n:i tten
notice t.O' Les-~HJr~.
I,~e$E!.or t .
'Id.thiil,
t1i..:'
.rAn t' l5eGi' r, ~g
.th4!i'
l! tb,ig' 1,1N?i[;;f~ ,<ahZil1!, t>$:nrlitll!lt:a ~
r~$ f3 t~:c I!
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14 II
1511
16 II
17 II
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18 Ii
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19
20 I
21 I
22 !
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24 If
25 II
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2611
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2.7
28, I
29'11
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- IJ ~f.r r j..1g I'..G
f,:J-Yr;
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in, full; fOrQ6: ano. ,:;\?t feet,. :'and Lessee . may assign ..or I sUQ1E1't:.:;.i,.n
2
accorda.no~ Wittl,PaJ;agraph !}. nerein, pertaini,ng.to asS\igIUl.'\ent; an.o.:
subletting; c:~;L\;1aso~ ana:!,1 further have. tt!E?.. option to purchase
3
4
Lessee! s buildi,ng ~I;l,t Lessee '. Ii! unamorthed,~QOE;t ,il}t theu,eVlilnt.;,or
5
de$truction lor.' condemnation ;ifs ;.prQvide4..inP.a1;"agl::aphS,jl~ a,nd.13., ',:
shou,ldfLeasee .;~l~o'!.>rto'terminate 'this lease under the provisions
of said paragraphs,;;:.. Il:l :the event Lessoridoefi '.not ele,.ct'j:,Q;. ;, "
6
7
8
exerGiseit~.. option, to '~purchase under sai.:LparagraphlJi, Lessee,,,,;
9
shall ~.hav€l,the_lright_.,tQ . sell or ,remove Ejaid puilding. "In s,uqh,.
10
event , ,,:,if. Leuee.,dt:;.HHI :nQt sell or z.:emOvj:l. !>,aid bui~ding, then ~t.,;
shall become the pl;Oper:ty ~of. Lessor t ,and Le;!6\oJ: agrees 1:0 '.$"nde.mnif
11
12
and. saye,,,LeSsee, h91J,.-mless fro1'\! and against, any..1and /il:!,l,. clairo..s " l
ariaing!fromt.'Le~",~et~:'J;;ai;l.\;!:l:'e to, remove said 1)\:!i~qing::f~9m sa~dla;, d
I
by..any per:~on o;;::GtQ:~Il,Y property,: and f~o!ll,and agai~st.S'.Hi'90I;>t.s, I
6l,penses. and, '.lia,p.:L1ities W4icp. may be. ingurred.in or iIl",oonnectio/n
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11~>&.t, ,'.el.ectri9:L;y"F.!nq. PP~(jlr :1tJhich, du:r;:J.ng, the term ?:Etr,:i.a-,~?liuJ'>~,_ I
13
".;i tho any ,.suqh,~,gJ-a.i~ 9f. DP?;oQ!"eqing . b"=oughtth~;eon,
,;.(: i:k'.J2~,(,s,;I,~ghi.e.lt;)qtion ;by eit4er',po.ri;:y ~!>e;t,1. bel.' IDaqE!' by
w:;;itt<!?n ,~?'f::;!.c<p ~f,r9:@ilop.[:3,',p?r~y .to~,the. othfiJ:' !...on. 0;1;' pefqre th~rty
(30) ,;days \,<i!,t:6f ;1161 t1~t~;:;Qf ~ the. mu:~ual agree4.terminatiql1,: 9L. ~he
1ea<J.!". or t:J.}~ 'ina tl.,l~.;l.?i:@"cRi~a tion Qf the ~:e1":m, pf ths, le&sEil ~ Qt' th~
ren~"'~l ~.tf j;:he 9PQ01:l, t.o.r~nei:r ,is "exerdsed.J;:.y Lessee ,.
:'. :.\
_.:):L'\.'~':~;!3~,;r"m~e.i o",:!:,essee' shaH pay fi;n:, i;lllMai;er;'I, gas,
may, be fUl:nl~hed,. tOtQrr,u~ed, on \ the demised. prellliaes, .
l?'c.;,GO~WE~iNp.TION'OF PRENISES: In the event or any
taking or dilmaSH7l qt:Jl;\lLJpr""my part' of O. t.h.e:le~sed, premi~!\!1? 9r t11.",
I
pui),<i.ing:,..:,yJ; n~lY.:#,~t9;;:l?Bt\: the~ein'f ,': by :[::''i'asonof an.y'@:I,!);i;q;i.se .0:1; ',U I
a condernnat.lon, prq~~~alp.g t
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q= .ot!:va:t;.~~:i~t?Zj .;o~(?-fP~1r ~ t.ransfer of 9.11 or: al1Y part of the leased i
t;herEin, made i:~), avo.j,q:- ,
. f ' ,', "',,;. d'o"-'n {,," ,,,,", f'o"L,,-
tne po\:",e:;::, 0 :. en..l,1.....,.._ r"o.~ ,Q1.'." : .oJ" .- _ J..1",
tQ as ".appr9E)J;:.i(:',tionl'L.p~J..O~;it<?",9r I
__._.._...._.L.._.~_:--,;..
. :'1.J1
the "pqw\,\i';. 01f[~~i.r~{;H:!1.::. qo,:\~.i,!:jt whrth~r,
prerniscs or
i or a,n.y.
allC~i)j:)f ,em
gg~..ng 1;1?il1gigerEt'!it.'!;,~k
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2
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5
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7 II
8
9
10 II
11
12 ,I
13 II
14 II
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15 II
16 p
17 II
18 ,I
19 II
20 II
II
21 I
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22 i
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23 II
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25 II
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26 iI
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during !;the ::i;er:m,her.~9f ~ (oJ: '.<.ny..extension ..0J::' renet'l'al"thereoft, the I
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.. _~t::,~:.. ': :,(:,;'. ,".r .j
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J,ea.l'Iedp:r~lllJ.\ii.es and bUilding, this lease shall terminate as of thel
,
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'I ::::,\j~:)n;:. G.;. :~ F.:,:;.-::,,"-I,t.:i
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","':,:;:~1:':~,:';\ cfln the>;event Of"ar;., appro.p::d:ation:.;ofde-S'i!> trtan, <ill1 ofl
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;x:ight;; F~d "i\b1ig~i;ions :.of cLessora.'"ld Lessee-vJithrespect to~suoh
a.ppr,aJ?.ria:~i,o.n d1}4all "be.as..heJ::eaft@;r ,p"rovidgd, ''-
,:. ;::, {; '::~ .:.:
.:< ,II! t:l).e event o;L;;>.ny Cl,pproprution :,of ;'aLltof.t:he,
date of su9):'!; _~app~?~r~ati;o'n.,",
l- ~.. .-
t;.h~ . .1,eased...p..rem.;i,:S1elbj, this (4-ealtle .shalL ,cont.inue in full' fo:u:'c"i' and :0
~f feqt:.a~c~p'Q., ,,8E\ ;,hereafter . provided in -this 'If\ection'~): .The :J;~a5ed
I
p.l:'!'imisfZs..shal)..,Q(!\ .r.'sduced.;by the pOJ:"t.ion. .appr.opriate'd,; '; :The total I
l,ec;s\$: l':eptf-\l. :~qJ:, . the;; ;l;emaj.nder of th"o,,:.erxn :immedi.ately . pr:tor: "to I
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entire'1J.4vttl;X'.Ii.,-;,inqluq.ing ,co;mpensationc.',damageEJ';' ,and.i.interest," if. . >,1
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approp:r;iat;i.pr~ ~JlalJ,., be abeted in.an amount. which !hears. in.:<.the . .,
aame, ;ratt.;i,o,:co )~uQh:totf.,l lee.se.. rent.al as. the amount.. 'of the '~i."
any,.
::l;'espe.ct to the ,Jlppropriation(inoluding any"
se\:e:~_~~';,.n_q~~~
bee.,X's ,to, ..the ,ralue-' of. the entire i.l!eas_ec'l" .
,-~.pd~~b~..ildi~g.. inullec1iately
prior tCL:the..apPJ;opriat::i.on-.,... .
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Ij::+~ t#q~, app.:t~op=:;L~t<ion sha.ll e.ithar (i) _re:r~der more. '.than.. twerit~t~ \
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81.10"'# I'
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Any slJ,ch' election shall: be made, by Hx:itten I
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;L.:z, terminated pursuant to this section!.
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:LeS2G6 sha)..l he{ e:qtitle,d to the aWLlxo,: .for: .any improvement.s. to the i
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mode by. Lessee plus :the, aWfJ.rd. ,ft)l\ the..),intereEt of >[
1
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ofiess':thal:l. all I
I
per .0~:m,.t.d20 ~)
of~. :the
total gr,ound' floor arEa/'ll o:t',the: 'bui:l:d:Lng
on ,~c!1e.
u:cavail(,-lble or tLYitenant;sIJler'.',Ol:' \'{.1:i)
impc.:d.J: ,the., us,,! of the leased premises by Lessee,
J..n
eithf2'.r
P~U"'f}, Lessee shall havs: the xig'h't. t.o' elect to
sl1ch
thL9:'
~~r()m
l~,). J~G,ssor on or jy"fore t.hlrty (30.) ,daj7saft.er
'L~e'ssee
dt~'~,$ JJf'
,~., -,
:Z:n...t,hf;~
0".
,..
e"Fcnt
!lny
of t.l}e,
&21,d
i:f
this
lGas~
is noi:
terminated pu:r".
S€E
tJ.1..i~c\D.
to
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:to t:ho: a'{;'~rd f,:;r i
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...._._'".._...........L"...
LefBse.s
sh~.J.ll
be. ent.:l.tl.sd
v,
1
2
3.
4
5
6
7
8
9
10
11 I
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13
14
15
16
17
,
18 !
19 !
20 J
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211
22 .I
"
23 !
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24 I
25 !
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26 I
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27 II
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28 I
29 j
30 II
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:51 11
32 d
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any.dmprovements 'made by Lessee .to the portion of .,the leaseCi
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Lessee"gha.ll':.have, the right to, elect: tOc!ftal):,eany;,restQ:\:'ation of tbie
I
appropriat.ion.'.,:;:.: ,.,. ,i,'" . ", ,,""' 'J
t~,)'.: ,'" ~.d l,,13.. '~dDESTRUCTION OF Pl?..EM~~ES!' '~~ ~~~.,~:~~:,:' of,:a',pl :~tia
., " I
destruction"ofd;.he said building during the .~aid ,1;,erm" ;!:rorn any.. r
!
:::"::.:;~::: ~:' w:::i::u:e::i:~:e t:: ~.:::, ~:::e::tial
that i Lessee sha.ll.be. entitled, to a 'proportionate",degu.ction' of, rent
while:. such.1.repairs . are , beincj".made,: such proportionate deduction I
J ' -I
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shall ,interf,e"X.'SL'fJith:' the. business carried'on. l;,rv.Lessee in the" :-. l
. ... . .. " 1
8aid premises., ,Lessee may,' a.t its option. make su~h, .repairs vIi ~l:d!JI1
a:' reazonable:. timeobut in 'no event more.., than six (6j months., th~l?,!
lease' continuing; in fulL~ :EOl:ce and effect. and, tller'ent ,to. bei
premillles.~appropriat6d plm'l the"award' fot': the!inter.~rpt::Qf Lessee.
remaindarcofithe;leased premises, neoessitated..by,reasQP:og.the
to be baaed upon the extent to' which the. making of," such, repairs
proport~op~~~ly rebated as aforef>aid in this ,paragraph PFovided.
In" t.he,' event~.. that, Lessee does not so elect to. make such repa.irs
,;'.hich. cannot' be made in .six (6) months or such. repairs cannot be"
I
made under:ouch 1a,,;I\;. and regu1ations;this lease may be. tea:nninate1.
at the.. option' of ",i the:!:', party. I
,," L.' i_,,:.'In resl;)ect to emy partj.al, destruction: which,r.essor ~s
I
obligated,' to ..repair or may' elect to repa.ir under the'. te:nns. of , thi~l
pc.ragrai?h, .tllS- provizions of Section 1932, Subdivision 2 r and of I'
Section 1933, StiJ.idiVis5:-cn 4, of the civil. Code or t:he s.tate~ of
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and:,' extended cover,,l,qe :Lnsu:r.ance poli,cy, ,On\;.t,hich Lesst,s
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, sa;Ld; p!:{ilmisea, shall o<a. pe,ye.ble.. to' ,Lessee ,. .and L€>,ssorl'
waive~)..t.h6) t:o' claim, ,t:he- proc,ee4s. of anv ..t11ereof
. . I
of z;.r~y. 811Ch insurZ:1.~:..c€) pol:l.cies" I
15.. 'L!l-\,BIL!TX INsura\NCE:,' !J,'h,:Ls .le1:1.$6 ,is malle~.up'Q!l, j:he i
----- I
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Califo:rni:~'! are: 'NaiV80. by Lessee,
....~ " ,)_.:'
\ J.,t,: . :rIRE .INSURhNCE:
Les;z~oX'
agrees that., the, 'proc~eds
of'
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e'tpress' ' condition that Lessor is to' be:E.:ee from all liabiE ty !
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and; claim.- for dar...ages' by reason of any injury -Co allY person or. ' ~
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per~onsl including Lessee, or property of any kind whatsoever and i
to vlhornsoevar b~:l:Ol:l... .glng, including Lessee ,'. from any cause'..or I
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causes. what$oev~r",while in r upon,' or in any way connected. 1i.:U.:h I
the.. said, leased land I except the" sidewalks and/or ',parking" area !
adjacent:. tllere:to,d.uring the term of. this' lease or. any extension..f.
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hereof,' o:::::'!l.nycocclJ,pancy, hereunder! " Lessee. hereby. covenanting and I
agreeing:~to ,indem..I'1.:kfy,and save harmless Lessor from all: liability,l
10S6 ".Cost7.i2aitd.;obl~.gat:l.ons on account of or a=ising Gut of any. .1
such inju=ie~ or J.o8St:!s,ho,Qever oCCUli:'1:ing. .\
. ,.L.!,' L9!l:See' further agrees to -take out and keep in I
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rorce during,the lifeherecf at~ LesBee's:e~~pense public liability i
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insurance. to' protsct: against. any l:l.abil:l:ty to the public :incident i
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to .the:t'..$c., of or; result.ing from any ac~cident occurring .in. or abou~
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$ ~QQo'.o'o ..1 :.:for'Lmy one perstm injured,
or
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$ _ 200. OOQ.bO ~ :
Scdd premises f the-.:UabilH:y lmder such'il'iSUrance to be :not <less
'than
for any: one &ccd.d<.an.tr or $3.:~.~L2..00~__ fol:' property damage"
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arid
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'IhesH'2:.. poJ..icies. shall insure the c01'itingent liabil.ity of Lessor f
Less.ee~' agr"~H~B., .~if Lessee does not. keep "such insl1:'Carice i.n full
v:hich :.ccnt 'bee-ontes due: I'
out the necessary insurance
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the pe:rfOr:D:lanCe ~of ' all. t:he ,term4
,during the IGase't'enn a.rid durin~
fOL'c-e :.e~rid ';effect: the Le.ssor.- Utay take
and.~ pC).:'{ ~ tlle premiunt and' the
rep&ying thereof shall be deemed 'co
b~ part,..c,f ,:the: ..~.:r.-er~tal: aJ."1.d
pa.Y:GH:;nt as
such on the nex'c day upon
,.',' 16..
: QUIET ENJOYri1E~NT' =
The Lessee, upon the payment of
.!'c.he...J::ent,',',:h€lre.ln res~;:rved and 'upon
of .th.is".,l"";~lse", shall at allt:l..InEJi'J
any ,~e";:t::engi~Jn . or renQ~ml tenn'peaceably and q1J.iei~ly: enjoy,)t:;h~
IG~a,tq~~d prop'Si-rt',y .wl th 1:;:ee t;;.ccess th(~j::'Erto 'V,rit.t.v:..Jut
dist,'U!.\bance
froin :t:he l.Jessor ~or f~om a.ny cthel~ .p6tson ;~lrd..mj.ng th1:'ough the
Le8S0~;,
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IA;~~ f, se(~ shr~ll pl~OC~J-J.:'G erne. pa:t i f1'J::+ all:
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~icensesandpermits needed in.connection with the' operation of i
.i:lusines:f:f, ~and ,shall: keep'f.he"business open on "allregular 'busiri:es
:d&ys.
.~ ~ . , -'.
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CCl.\:.. i,-' .:. :La..:' COMPLIANCE WITH Ll\NS: The' L~sseeJ~h;;il ,at is'
sole:'eXpense~,.promptlycomply ~1i th'cil1 pres'~n:t: ahd futu're"laws,
regUlations'br rules' of any county;' st'ate'- federai;, ~ii-c!' oth€/i.:: .'
governmental autho~ity and any bureAu 'and'depart~~'n.t,..the'f'~~''f whi~J
may;be appl:\,cable to the leased prope:tty~' The. Lessee~ shall have
the ;.right~ after' written notice to the 'Lesso';t to"~bnt~st by .
. ..' . 1.,' ,<.. ,..
appropriate::'<legal: proceedings,. diligently conducted in good faith
the, validi tysbr' appHcation of: any.' suet;' law', . rsg=Uiation; at' rule,
12 and ~ to :-delay ;'compliance ",therewi th per,dil19'Che. prosecutiort "of such
13 proceedings, '.,provided nOI civil or criminal liabiiity' woillo.)5e 'in'
14 cur:t:edbY;l the LSssor and' no 1 ien or' charge would :be imposed upon
J.5
or.\lJatisfiedlout :.df :the leased propert:fby rea~oi{of' su6h dela:y.
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! any ',action .by"either party heret.cas, :ag'ainst the 'otheih<;::'reoJf'~r
18 I . . , . ',..,
I hereu.t1dar, 'or by:teasol'1 '.01' .the br~ach of 'any' co-Jenarit"or conditior
19 i' oDithe part: of, the othe:r: party F 'or arising out of this lease," ther
I fu.'1d." ,in. that., e:vent the party in ,'lhosefavor final' judgment shall bE
11/'
entered shall be :erd:.i tIed to have and recover' 6:f"ai-i'd from' the oth€
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reasonable attorney's' fees to. be fixed' by' tile' 'court: wh'e'rein such
23 II judgment;"s,ha:!::h:be entered.'
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II writing "'-rld 'must-be' sent byregifltored or ccrt:ifie,d mail to the
II
II its address' as :
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Ii Oakland, Californ.:La 94608, The Lessee hereby d.e,signates its
II address a:3: P.O. Box 220, Ploa.sant.on, Ca.lifornia.
II
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II option to renew this lease ior c\ fu~ther> 1X.,riod of tVleni:y (20)
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'.;..19 ,r ':.'ATTOR1\JEY'S FEES:
In the event Of 'the' bdtlgiilg:; bf
17
20
21
22
2f
Any notice \mder t.his. lease lnQst be
20 ,;.NOTICE:
in
25
26
last address of the party 'co '-'Thom the ,ns'!::~?e is: to ~p..giyen, .as
;':.:...~:,;:~Y '-"..1 \...' _ _ .~. .,.;.", .
des;!;gna:te0.:b~r'such party in wJ:itir.,g:;'The 'Lessor hereby designates
f27
28
HE,RK}!;LEYLAND COl'lPP.NY.,._.4550 San, P.abl.o" Avenue "
29
3.0
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is hereby granted
OP~~ION TO RENEW;
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LessE'.e
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,y,ea':;;a 1" frow,' .arid . afterthto (driiraHon 'or ,the"'oi;iginalterm at a
~. _" ,-.~~...;.~'''' ~...f;"~ ....'.......~.,. ;..;" .....~.. ,.
2 ::re:nta1 of" o.~:e.:.HUNDRED FIFTY-.THJ;<.EEi;1P.q.,56/199:.D9LLA.RgJ ,J$153. 56) pel
~i. "I : "'i!'~~; ~~~L<i9i.~~,':.e:, uP"nt,':::a~~:;;;~",:' ~"". :c, on~i t i:on, ~ < ~~ herein
0." I i\ ,c~~~~~~~' ~~~.b;; l,i: o~~i 0; tc~~p~~.'.. ';rl t~~" · ~;'ti ~"::~~ .
(~~f \';~e:a,~~~ i:~;~~~t~oh,~: t~ren~~(~h~~ .1~a:i~;1;~:.l,i:'~~'-gi~(~/~t,? ~Le8sor
" .. -" .. ,) ... 6- ... \J " , I ... ...1.;; a (, v -' ~ .... -'. .' -. t.~ .~...., ...." ". . .
6 -at least' sixty ".{6'O') "d~ys prio~"to~ ,the' expiration of this lease,
7 122. ARBITRA'rION: In the event of any dispute bet"reen
8 Lessor and Lessee relative to the provisions of this agreement,
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they shall e~ch select an arbitrator, the two arbitrators so
selected shall select a third arbitrator and tl1e three arbitrator
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so ael~,c;ted';'shall hear and determine the controversy and their
nec'is':iol1 thereon shalt be final and binding Upon both Lessor
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and Lesae~i~:~~l;o shall beeu:: the cost of such arbitration equally
. ,,;:;-:(/,~::,~.\ r ',: , .
,.b.e...:\!~e:\!\,,,"1;:hem. \, UP010" nm::te8 by either party ~hat he desires to
.. ~ ~ \ '" "",
have\a\roatterctfbitratec1, t,he other party shal;!. '\I!ithin five {5}
'~-,~', ~'1..'~! r,._",,~t ' :" ;: -:{.' -
a.ays 0:~~.~9;r't€r notify th6. party requesting such arl?i::tration as
',>
'co the \p.3.me:"andac1dress of ,his arb:ttJ:atQr. The arbitration ghal:
" ~_:.~.:_:_,;_~,.'_'.;.' ....'.-..._. '. __ <_::._" '. ~::i: ~:":' ,. \,.
'So heard ahd:'co;no1.eted wH:hln thirty'(-30)-:aa~s from the dat.e the
.~i \ - .
:-'fi~8t not:':i.CB of rec:n,les't to arbitrate was deposited in the united
. \:~~.... ... :'
Sta tes mail~~pr personally deli \re:red t? tl:'!e', other. party,
23 :\
SUCCESSORS Al\fD P,SSIGNS:
This agreement shall bind
and inure to "the benefit of ,the sU:cces~ors, assigns, personal
:repreBenta'~i'\i'~s; heirs ared legatees of the respective pc-.rtiss.
IN NI{r~"ESS vJHEP"EOF r the pa.rt..ies ha\re h~reunto affixed
their signa'tures the 14t~h day of l\pril r 1967"
. .r:. !!.l 1",-
'I'H1?" FIRST, L'iliTION]1,L BI\.NK cr,' PLEl"SAl;
a c.orporat ~on,
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BY""~ {)..':.~",8~~.~~,
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/1 ( \~\ '~ PresiC:'S'1t
By !tIAfv'vv-- !1~{;;:'6"L ~~
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Vice 1?rcsid~*~( 0: Cashier
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BERKELEY LAND CO~~ANY,
a corp-oration
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- ::t' - / idzali' .,.. ( c"'),
Bv ,.-1{"".,J,.-"I'Z" < r-1 j;"l< -_-;..:-/..<;:'i/,././ (I; 'r.t-:; .
.. ~..:-;.:......-___~__' v" /' ! ."- _~._.~~_.;..,_
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That parcel of land 1n the Township of Pleasar.ton. County of Alameda,
state of California, desoribed a3 fol10wn:
Beginning at the point of intersection of the southeastern line of
the state Highway from Hayvlard to 1i':e:>:'>.1ore with the south'"estern 'line
of the parcel of land designated as Parcel 2 in the deed to :
H.B. Oxsen recorded June 10, 1936 in Book 3317 OR, page 470, Alameda
County Record:;; thence along the last named line south 210 15' east
25 feet'; thence north 680 45' east 25 feet to the actual poir.t of
co~~encement; thence south 210 15' east 90 feet; thence north 680jM5'
east go feet; thence north 210 15' west 90 feet; thence south 680'45'
west go feet to the actual point of corr~encerr.ent.
. "vJ;ii ;)ff(J"V./ ~" '\-~
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. ~ I'OR'l'ION OUT.wINED IN RED C_OMPR~SE.S \ ~
\\~l:ffi 8100 SQUARE FEE'l' LE.i\SE~ BY LESSEE )\ '-~
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THlru IS NOT ^ ~U1'{Y&l" Or-'1H"- L...ND. UlIY r~, '::':(hU":U:~ ;:'RO,Y, CAT,.', e;HOWN BY ;'H4: J"UTJ1..1C rt:ECO:1;:)'S.
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IlEXHIBIT A"