HomeMy WebLinkAboutItem 4.09 Dublin Historic Pk Acquisition
CITY CLERK
File # D[l][f]~-~DJ
bOO-30
I17fJ- 2D
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: May 1, 2007
SUBJECT:
Approval of Purchase and Sale Agreement for Real Property at
11759 Dublin Boulevard for Capital Improvement Program (ClP)
Project No. 95556 - Dublin Historic Park Acquisition (Heritage
Center Expansion) and Approval of Budget Change
Report Prepared by: Richard C. Ambrose, City Manager
ATTACHMENTS:
1) Resolution approving Purchase and Sale Agreement and the
Assignment and Assumption of Leases Agreement for 11759 Dublin
Boulevard, (together with Exhibit "A", Agreement)
2) Budget Change Form
RECOMMENDATI(WY'
\
1) Adopt the resolution approving the Purchase and Sale
Agreement Between Berkeley Land Co. and the City of Dublin and
the Assignment and Assumption of Leases Agreement for 11759
Dublin Boulevard and authorize and direct the City Manager to
execute the agreements.
2) Approve budget change form in the amount of $7,900,000
FINANCIAL STATEMENT: The purchase price ofthe real property at 11759 Dublin Boulevard
required for ClP Project No. 95556 - Dublin Historic Park Acquisition (Heritage Center Expansion) is
$7,865,000. The City's portion of the estimated closing and owner's appraisal costs for the subject project
are no more than $ 35,000. The budget for the acquisition is paid for through the City's General Fund
and development impact fees.
DESCRIPTION: At the September 16, 2006 meeting, the Dublin City Council
approved an amendment to the 2006-2011 Capital Improvement Program for the Dublin Historic Park
Acquisition project. This project provides for the acquisition of the Dublin Square Shopping Center
(APN 941-1560-007-01).
The Dublin Square Shopping Center totals approximately 40,585 square feet of buildings on
approximately 4.25 acres at the southwest corner of Dublin Boulevard and Donlon Way. The City
obtained an appraisal of the property and then offered to purchase the property for the appraised amount.
COPY TO:
Page 1 of2
ITEMNO.~
('
,,./
The City and Berkeley Land Company, the owner, entered into negotiations which have resulted in an
agreement to purchase the property for a total purchase price of $7,865,000. The proposed Purchase and
Sale Agreement (see Exhibit A of Attachment 1) calls for, among other things the City to take the
property "As Is" - with existing tenants in place. The Purchase and Sale Agreement also recites that the
purchase is being made under the threat of condemnation. The City will pay all escrow and closing costs
and will reimburse the property owner in the amount of $5,000 for the owner's appraisal costs, as required
by law. The Purchase and Sale Agreement provides for close of escrow to occur on May 9,2007.
The Assignment and Assumption of Leases Agreement will assign to the City all of Berkeley Land Co.' s
existing leases at the close of escrow. The City will then be the lessor until it is able to relocate the
tenants.
If the acquisition of the property is approved by the City of Dublin, the City, through its staff, agents, and
consultants such as Associated Right of Way Services (AR/WS) will comply with all applicable laws
including California Code of Regulations Title 25 which includes providing assistance in searching for
suitable replacement sites for each business. The City Council will consider approval of the Final
Relocation Impact Statement for the Dublin Historic Park Heritage Center Expansion tonight. If approved
by the City Council, the City will present each occupant with a Notice of Eligibility, provide assistance in
searching for suitable replacement sites for each business, and provide assistance in claiming relocation
reimbursement payments from the City. Upon adoption of the Final Relocation Impact Statement, and the
close of escrow, relocation efforts will commence.
RECOMMENDATION: Staff recommends that the City Council: 1) Adopt the resolution approving
the Purchase and Sale Agreement and the Assignment and Assumption of Leases Agreement for 11759
Dublin Boulevard and authorize the City Manager to execute both agreements, and 2) Approve the
budget change in the amount of$ 7,900,000.
2~V
19b2~
RESOLUTION NO. - 07
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
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 ParksIPublic 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.
BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute the
agreements.
PASSED, APPROVED AND ADOPTED this_day of
,2007.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
Attachment 1
23f)Z~
ATTEST:
City Clerk
G:IChrislBerkeley LandlPurchase and Sale May 1 2007 Resolution. doc
3f>2"y?
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, Seller 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. WHEREAS, Buyer and Seller 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
DOLLARS AND NO CENTS ($7,865,000).
3. PAYMENT OF PURCHASE 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
-1-
Exhibit A of Attachment 1
C:IOoclIments and SellingslPOMILocal SellingslTemporary Intemet FileslOLK 1 F61960463 _1.00e
lfct Z3~
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 ~
Grant Deed to the Property as provided herein and attached hereto as Exhibit "C," 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 "Assignment 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 shall any such supplemental instructions
supercede or contradict the provisions of this Agreement and in the event of any
inconsistency between the terms of this Agreement, on the one hand, and the terms of
any such supplemental Escrow Instructions, on the other hand, the terms of this
Agreement shall supercede and be controlling.
-2-
C:IOoclIments and SeltingslPOMILocal SeltingslTemporary Intemel FileslOLKJ F61960463_1 .ooe
t::>uu 2~&f
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, shall 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 10th. At Close of Escrow, a check payable to the County Tax Collectorfor 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. Seller and Buyer shall each cooperate with the other diligently and promptly
to correct any errors in computations or estimates under this Section provided Seller 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) 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 the Lease
Assignment Agreement, and (iii) the Nonforeign Certificates.
-3-
e:IOoclIments and SellingslPOMILocal SellingslTemporary Intemet FileslOLK 1 F61960463 _l.OOe
l.t; t 23&>f
(D) Deliver to Seller: (i) conformed copies (showing all recording
information 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,
examinations, 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.
-4-
C:IOOClIlllents and SellingslPOMILocal SeuingslTemporary Intemet FileslOLKl F61960463_J .ooe
~ en Zg'l
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 to 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 WAIVER.
(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:
-5-
C:IOocuments and SellingslPOMILocal SellingslTemporary !ntemet FileslOLKJ F61960463_J .ooe
~ <1b23 q
(i) Any and all claims, actions, causes of action, suits,
n,."ro""rlin,...,... ,...,,...m-....,..I- r:,..h+_ '"'''''.----,...- ---"'- -"'---5-- -... O~....._... --------.&.:--
1-'1 U\"\J\JUIII~", U\J' IOIIU." II~IIL", UOIIIO~\J", \"Vo;)lo;), v^tJvll co;) VI lIlCI vVllltJCIl;)dllVII
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, or 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 Qroundwaters 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; (D) 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.
(B) Without limiting the scope 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
CERCLA (hereinbelow defined), RCRA (hereinbelow defined), the Carpenter-Presley-
Tanner Hazardous Substances Account Act or any similar or other Applicable Law now
-6-
CIOOCLlments and Seltil1gslPOMILocal Sellil1gslTemporary Intemet FileslOLK I F61960463 _I.ooe
~ 1j3q
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. 99
9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 99 1801, et seq.,
as amended, the Resource Conservation and Recovery Act, as amended ("RCRA"), 42
U.S.C. 996901, et seq., the Federal Water Pollution Control Act, as amended, 33
U.S.C. 99 1251, et seq., or the Clean Air Act, as amended, 42 U.S.C. 99 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", "RCRA hazardous waste", "waste" or
"hazardous material" in 99251151,25117,25122.7,25120.2,25124,25281,25316 or
25501 of the California Health and Safety Code, as amended, or listed pursuant to 9
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
-7-
e:\OOClIl11ents and SettingslPOMILocal SettingslTemporary Intemet Files10LKIF61960463_J .ooe
lD'bt.~~
of 1986, California Health and Safety Code 99 25249.5, et seq., as amended; (vi) any
substance defined as a "waste" or "hazardous substance" in 9 13050 of the California
Water Code, as amended; and (vii) any substance listed in California Labor Code 9
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 WARRANTIES.
(A) Seller's Representations and Warranties. 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.
-8-
C:IOoclIments and SellingslPOMILocal SellingslTemporary Intemet FileslOLKI F6\960463 _I.one
t lUCf-34
(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 with 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
-9-
e:IOOClIlllents and SettillgslPOMILocal Sellings\Temporary Intemet FileslOLK I F61960463 _l.OOe
[2-tf34
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 Property.
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 Property 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 12th Street, Suite 1500, Oakland, CA, 94607).
36. EMINENT DOMAIN DISMISSAL. Seller and Buyer acknowledge 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
-10-
C"\OoclIments and SettingslPOMILocal SellingslTemporary Intemet FileslOLKJ F61960463_J .ooe
\3'tf34
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 the final expression of and contains the entire agreement between, the parties
with respect 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
otherwise expressly 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
-11-
C:IOocumellts and SettingslPOMILocal SeUingslTemporary Intemet FileslOLK 1 F61960463 _ J .ooe
! Y:1f~4
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
ATTN: Elizabeth H. Silver
Claudia J. Gorham
FAX: 510-444-1108
-12-
e:IDocuments and SeuingslPOMILocal SellingslTemporary Internet FileslOLK I F61960463 _l.Ooe
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year set forth hereinabove.
By:
ATTEST
By:
BUYER/CITY:
CITY OF DUBLIN
Richard Ambrose
City Manager
City Clerk
APPROVED AS TO FORM:
By:
Elizabeth H. Silver
City Attorney
SELLER:
BERKELEY LAND COMPANY
By:
~-
By:
C:IOoclIments and SettingslPOMILocal SettingslTemporary Intemet FileslOLKI F61960463 _I .ooe
-13-
l5~34
ACCEPTANCE OF ESCROW HOLDER
The undersigned hereby acknowledges that it has received a fully
executed counterpart of the foregoing Agreement and agrees to act as escrow holder
under the Agreement and to be bound by and perform the terms thereof as such terms
apply to escrow holder.
North American Title Company
By:
Escrow No.
Name:
Title: Title Officer
Date:
-14-
C:\DoclIments and SeltingslPOMILocal SeltingslTemporary lnlemet FileslOLK] F61960463 _1.DOe
lCa VfJ~4
1l8b2.34
EXHIBIT "A"
LEGAL DESCRIPTION
[Insert Legal Description of Fee Acquisition]
BlCMl4S 831\698682.3
-1-
l~qy3~
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 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 16,1921 AND RECORDED JUNE 21,1921 IN BOOK 18 OF
OFFICIAL RECORDS OF ALAMED~ COUNlY, PAGE 347; RUNNING THENCE NORTH 680 15' EAST.
ALONG SAID SOUTHERN LINE OF THE 5T A TE HIGHWAY, 114.56 FEET; 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 50UTHERL Y (MEASURED AT RIGHT ANGLES) FROM THE
CENTER UNE 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, 113.02 FEET; THENCE NORTH 220 is' WEST. 174 FEET, MORE
'OR LESS, TO A POINT WHICH WOULD BE INTERSECTED BY A LINE DRAWN PARALLEl- WITH THE
CENTER LINE OFTHE STATE HIGHWAY AND DISTANT SO FEET SOUTHERLY (MEASURED AT
RIGHT ANGLES) THEREFROM; THENCE NORTH 68015' EAST, 114.47 FEET TO THE POINT OF
. BEGINNING. .
P:ARCEL1WO:-
BEGINNiNG AT A:R.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 ROAD.Wri'fi THE SOUTHEASTERN LINE OF THE STAtE HIGHWAY FROM
HAYWARD TO LIVERMORE, AS SAID HIGHWAY NOW EXISTS, AND AS SAID HIGHWAY LINE AND
CURVE ARE DESCRIBED IN THE DEED FROM FELIX FERRERO AND MARtE 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 68"15' WEST, 105.92 FEET, MORE OR LESS, TO THE.
. NORTHEASTERN LINE OF THE PARCEL OF LAND DESCRIBED 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 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, 113.02 .
FEET, AND NORTH 22015' 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 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 MENTIONED COURSES, A DISTANCE OF 58.63 FEET TO THE SOUTHWESTERN LINE OF
THE PARCEL OF LAND DESCRIBED AS .PARCEL2j" IN THE DEED FROM FELIX FERRERO TO H.
B. OXSEN, DATED JULY 1, 1936, RECORDED JULY 10, 1936, IN BOOK 3317 OF OFFICIAL
RECORDS QF ALAMEDA COUNTY, PAGE 470; THENCE ALONG THE GENERAL SOUTHWESTERN
AND SOUTHEASTERN AND NORTHEASTERN LINES OF SAID LAST MENTIONED "PARCEL 2", THE
FIVE FOLLOWING COURSES AND DISTANCES: SOUTH 21. 15' EAST, 371.91 FEET, MORE OR
lESS: NORTH 71. 30' EAST, 24.618 FEET; SOUTH 21" 15' EAST, 39.60 FEET; NORTH 710 30'. EAST,
250.80 FEET AND NORTH 23. 15' WEST, 38.2B 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 63045' EAST, 202.62 FEET TO SAID
SOUTHWESTERN LINE 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: 941-1560-007-01
L4 'tj31
BLCM\4S83\ \698682.3
z,O"1J~f
EXHIBIT liB"
DEPICTION/PLAT MAP OF FEE ACQUISITION
[Insert Map of Fee Acquisition]
-1-
2 (1f31
L
MAP ~ .Coo_ A,tib N"..IB'02~ n qq() Os
. . 26-00\ ::)lP 0,
MAP OF THE PROPERTY' OF TAE ESTATE OF At,41 iii. I D'::' 2-
ElIZ"~ETH A. OQUGHERTY.(8.f:'.4.~.?41 . .
SANTA RITA RANCHO
~Ctbun" a~mr. J.D. Pl:ICbtCd(.-;t~AN'/
Scal.; I.. 1'00'
&.u.-~ ~()
.-.;
/
/
/ t~
. ;.4
iJ
if
I~
"6
40
,. ...
c~ ~
~il:r:
~="-~
..."..".
,
I.in
~~~
'v-
....
!
~
1550
pu~u~ ;., SUNC....
(Co. ~OA.P \~~ .. . ,/)QtV~I)# NK
.............-
,"fT
u!.fP' @
",r ~
...
S~:S~
.. . ,.
e:.€) .
"
.' 113
...
!::
.
..
...
..
...
...
..
'.,' ~
.. ." ... p:tl; .~.
_.:-'"'"'"1.. .!;s"" 1
__ _~I. L
Fl~' ,.
'" ..; IL'.' ,: .
~~.t~. .~ .
~ t! .."';, ......-...:-r . e
') . ~.~_.
'()
Sll
~
'" . .
~eITT.
noo
s
J
.il
-Q
101..
JO
!l
'3 !
'5~
u-
-I
Ii'
!-,.
11
t~
.~.!!
e.~
.e~
11
~!t
. !!~
-Q
.!I c:
g.'1/I
.:::
~i
f5.!!
s!
=0
~~
ol!
-;,
.511
f-!
,..
...
-' "
r.s;;v
.tP.
I ~
~. If
.111 ~
\ .
0 .."
.I ..
0 II?I./.'
......
115'
I:-
8~
~!
...
~11I'i::r;:rAIiI'T
<it::.."'_"''I'!=R''0 .
. .5 CiTY.
. .
. ..
"r;.:~. .
".. ."oC .:.
,-~...
115.,0
'. .. 'j
,
. '."
. .
. . . I -
. .
Description: Alameda,CA Assessor Map 94{ 1560 Page: 1 of 1
Order: ae am Comment:
..~.I"
.....-10-
J ~ \
~ 1
R
~I l'
~
!t'\
..
," ~ ...
..
JQ ,w. .
>> ~ ~,..,
~ "
c::) {W\
CD! "
~ '~:,' '\[, ~
-1
(:),
,
....
....
.....II..-s-:
"~50),
~
""So
E'
.
~
~
.., ~
" .. ':s;)
FiQ
2M
~~
t'i ~.
;a}>
@..f. ~
(')
:::j
-(,
,.
- '.
. - .""
11>--
.. -.:= --'~
~OOI '-.,s-
~
~
~
w
OVBL/.
~
Iol
. · ~0)
.~ "
=i
-<
-
, ..
--
--
2. Z~'23?
. f" .; ", .
-. , -- --- 4-27-82 Rtf
5-09-B&e:!'L
6-1-88 PB"
.,'.' ,'f ..
BLYP
-
n~s..'~ > ~ \
~
tJ\
~
.~
~
fIi
~,
't
~,
~
()
P
1\1
o.
,~ .
.Ot .
- '.'
olD
@
"1:
':1>
."
c.:. en ' :0
~ b I'll '"11"
A C:::l: r '-I
tD .~:.t N'X
n .... ,,,. .1'1'1
2. .... . ~ "'U
- Q .... ......_ ""-'i
.;~ . Q. - .....
-. :I ii! '" 0
. ..""'\. ::! 3l
~ c..;:a ... .-.
':., C) b)i J>.:G
O.':Z. ~
-b0 c "
cr.:t: 0 0
g. 0 C""ll
. Q-t
C') :i:~
Q.. ITIITl
~ :U",
~ -Ien
~ -<-I
"d}' ~!4
~ '!t1'l1
~ .J\ 0
~ ~-q
~
~
t1
n
=i
@
U1
01
o
'0\ /
,C '
01
r
~ .i
~ ..r'
-~ 0
(/J
~ .i
~
r
c
I
c;:
<:
2- ~ ~ 230c
EXHIBIT "C"
FORM OF GRANT DEED
BLeM\4583\ \698682.3
-1-
Recording Requested By
2~~Z3'1
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
CORPORATION GRANT DEED
A.P.N. 941-1560-007-01
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 nON, 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 April 27. 2007
STATE OF CALIFORNIA,
COUNTY OF
On
)SS.
)
before me,
Berkeley Land Company, Inc.,
a California Corporation
Notary Public, personally appeared
per
By:
Frank E. Sabatte, President
sonally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by hislher/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
MAIL TAX
STATEMENTS TO:
(This area for official notarial seal)
SAME AS ABOVE
NAME
ADDRESS
CITY, STATE, ZIP
C:IDocuments and SettingslPDMILocal SettingslTemporary Internet Files\OLK1F6157310108 - Corp Grant Deed1.RTF
7, 6 'D2 '3 '1
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 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 16.1921 AND RECORDED JUNE 21.1921 IN BOOK 18 OF
OFFICIAL RECORDS OF ALAMEDA COUNTY, PAGE 347; RUNNING THENCE NORTH 68015' EAST.
ALONG SAID SOUTHERN LINE OF THE STATE HIGHWAY, 114.56 FEET; THENCE SOUTH 210 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
CENTER UNE OF THE AFORESAID STATE HIGHWAY, AS RELOCATED AND AS THE SAME NOW
EXISTS FROM SAID POINT OF BEGINNING; RUNNING 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 PARALLEl- WITH THE
CENTER LINE OFTHE STATE HIGHWAY AND DISTANT 50 FEET SOUTHERLY (MEASURED AT
RIGHT ANGlES}THEREFROM; THENCE NORTH 68015' EAST, 114.47 FEET TO THE POINT OF
. BEGINNING. . .
PARCEl1WO~
BEGINNiNG AT A:PDINT ON THE SOUTHWESTERN LINE OF FOOTHILL ROAD, ALSO KNOWN AS
THE ROAD FROM DUBLIN TO SUNOl, AT THE SOUTHERN EXTREMITY OF THE CURVE
CONNECTING: SAlb ROADWr'r8 THE SOUTHEASTERN LINE OF THE STATE: HIGHWAY FROM
HAYWARD TO LIVERMORE, AS SAID HIGHWAY NOW EXISTS, AND AS SAID HIGHWAY LINE AND
CURVE ARE DESCRIBED 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 CURVE, BEING ALONG THE ARC
OF A CIRCLE TO THE LEFr. 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 680 15' WEST, 105.92 FEET, MORE OR LESS, TO THE.
. NORTHEASTERN LINE OF THE PARCel OF LAND DESCRIBED 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 NORTHEASTERN, SOUTHEASTERN AND
SOUTHWESTERN LINES OF SAID 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 220 is' 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 68015' 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 DISTANCE 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 10,1936, IN BOOK 3317 OF OFFICIAL
RECORDS OF ALAMEDA COUNTY, PAGE 470; THENCE ALONG THE GENERAL SOUTHWESTERN
AND SOUTHEASTERN AND NORTHEASTERN LINES OF SAID LAST MENTIONED "PARCEL 2", THE
FIVE FOllOWING COURSES AND DISTANCES: SOUTH 21015' EAST, 371.91 FEET, MORE OR
LESS; NORTH 710 30' EAST, 24.618 FEET; SOUTH 21015' EAST, 39.60 FEET; NORTH 710 3D', EAST.
250.80 FEET AND NORTH 230 15' WEST. 38.26 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 LINE 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: 941-1560-007-01
. Z0;4JZ3t:(
2:Zt23cr
EXHIBIT "D"
ASSIGNMENT AND ASSUMPTION OF LEASES
BLeM\4583 I \698682.3
-3-
23~3~
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 "Property") more
particularly described in Exhibit "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. Assiqnment. As of the Effective Date, Assignor does hereby
assign, transfer and convey, without recourse, to Assignee all of Assignor's right, title
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 limitation,
all obligations to return Security Deposits not already returned by Assignor under the
Leases ).
C:\DoclIrnents and Settings\PDM\Local Settings\Ternporary Internet Files\OLK I F6\960366_1 2.DOC
-1-
24Db~
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. Attornevs' 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"
THE CITY OF DUBLIN, a municipal
corporation
,2007
By:
Dated:
RICHARD AMBROSE
CITY MANAGER
C:\Documents and Settings\PDM\Local Settings\Ternporary Internet Files\OLKl F6\960366_12.DOC
-2-
~1Jz3C[
EXHIBIT "A"
DESCRIPTION OF REAL PROPERTY
C:\Documents and Settings\PDM\Local Settings\Temporary Internet Files\OLKI F6\960366_I 2.DOC
-4-
3(1J231
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 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 16,1921 AND RECORDED JUNE 21.1921 IN BOOK 18 OF
OFFICIAL RECORDS OF ALAMEDA COUNTY. PAGE 347; RUNNING THENCE NORTH 680 15' EAST.
ALONG SAID SOUTHERN LINE OF THE 5T A TE HIGHWAY, 114.56 FEET; 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
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 66" 13' 30~WEST,113.02 FEET; THENCE NORTH 22"15' WEST. 174 FEET, MORE
. OR LESS, TO A POINT WHICH WOULD BE INTERSECTED BY A LINE DRAWN PARALLEl- WITH THE
CENTER LINE OF THE 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'fWO:-
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 OF THE CURVE
CONNECTING: SAtb ROAO'WI''rH THE SOUTHEASTERN LINE OF THE" STATE HIGHWAY FROM
HAYWARD TO LIVERMORE, AS SAID HIGHWAY NOW EXISTS, AND AS SAID HIGHWAY LINE AND
CURVE ARE DESCRIBED 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 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 DESCRIBED 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 2416. 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,113.02 .
FEET, AND NORTH 22015' 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 68.15' WEST, 119.3-4 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 DISTANCE OF 58.63 FEET TO THE SOUTHWESTERN LINE OF
THE PARCEL OF LAND DESCRIBED AS .PARCEL i', IN THE DEED FROM FELIX FERRERO TO H.
B. OXSEN, DATED JULY 1, 1936, RECORDED JULY 10,1936, IN BOOK 3317 OF OFFICIAL
RECORDS QF ALAMEDA COUNTY, PAGE 470; THENCE ALONG THE GENERAL SOUTHWESTERN
AND SOUTHEASTERN AND NORTHEASTERN LINES OF SAID LAST MENTIONED "PARCEL 2", THE
FIVE FOLLOWING COURSES AND DISTANCES: SOUTH 21. 1S' EAST, 371.91 FEET, MORE OR
LESS; NORTH 71" 30' EAST. 24.618 FEET; SOUTH 21015' EAST, 39.60 FEET; NORTH 71. 3D', EAST,
250.80 FEET AND NORTH 23" 15' WEST, 38.2B FEET, MORE OR LESS, TO THE SOUTHEASTERN
LINE OF THE PARCEL OF LAND DESCRIBED AS "PARCEL 1U IN SAID LAST MENTIONED DEED:
THENCE ALONG THE LAST MENTIONED LINE NORTH 63" 45' EAST, 202.62 FEET TO SAID
SOUTHWESTERN LINE OF FOOTHILL ROAD; THENCE ALONG THE LAST MENTIONED LINE
NORTH 250 45' WEST, 325.39 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
APN: 941-1560-007-01
32b23Cl
3~~23(
EXHIBIT liB"
LEASES
C:\Documents and Settings\PDM\Local Settings\Temporary Internet Files\OLKIF6\960366_12.DOC
-5-
t.
~ L{orJ 23q
CONlMERCIAL LEASE AND DEPOSIT
RECEIVED FROM
The sum of $ 825.00
evidenced by Check
Jodv Rhone. hereinafter referred to as LESSEE
EiQht Hundred Twentv Five*_**'******************************************************************************** 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) $ 400.00 $ $ 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--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 11847 Dublin Blvd. Dublin. CA
consisting of approximately 700 square feet, upon the following terms .and conditions:
1. TERM. The term will commence on . Sel?tember 1. 2005 and end on AUQust 31. 2008.
2. RENT. The total rent will be $ 15.300.00 at $ 425.00 per month (based on first year's rates) payable on the 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. Danville.CA 94526 or at such other places as may be
~esignated 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 c/large of $ ....22.-Plus
Interest at -1L % 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 bemaOO or permitted to be mllde
upon the premises, nor acts done, which will 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 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 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.
7. MAINTENANCE; REPAIRS, ALTERATIONS. 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, 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 received,
normal wear and tear excepted. lessee will be responsible for all repairs required, except the following which will be mllintained by Lessor: roof, exterior walls, and
structural foundations (including any retrofitting required by governmental authorities) and:
lessee &ill, [twill not maintain the property adjacent to the premises, such as sidelNalks, 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 will give lessor lit least two (2) days written notice in order that lessor may post appropriate notices to
avoid any liability for liens.
8. ENTRY AND INSPECTION. Lessee will permit 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 sixty (60) days prior to the expiration of this Lease, to place upon the premises any
usual "For Lease" signs, and permit per~ons 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 the
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. .
10. 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 delivered. Lessee may terminate
this Lease if possession is not delivered within ~ days of the commencement term in Item 1.
11. LESSEE'S INSURANCE. lessee, at his or her expense, will maintain plate glass, public liability, and property damage insurance insuring Lessee and
Lessor with minimum coverage as follows: 1 Million Dollars General Liabilitv
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 lessor
prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE. 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 trade fixtures.
13. SUBROGATION. To the maximum extent permitted by insurance policies which may be owned by the parties, lessor and Lessee waive any and all rights
of subrogation which might otherwise exist.
14. UTILITIES. Lessee agrees that he or she will be responsible for the payment of all utilities, including water, gas, electricity, heat and other services delivered
to the premises. except: ******11'.'**************.*************************************.",******************************************************************* .
15. 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 written
consent of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
16. ABANDONMENT OF PREMISES. Lessee will not vacate or abandon the premises at any time during the term of this Lease. If 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 deemed to be
abandoned, at the option of Lessor.
Page 1 of 3
l'
~ SifJ23C-Z
Property Address
11847 Dublin Blvd. ...._Jlln. CA
17. CONPEMNATION. 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 the value of the premises remaining bears to the tot<ll value of the premises at the date 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, or the remainder is
not susceptible for use by the Lessee, this Lease will terminate upon the date which the condemnor acquires possession. NI 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.
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 any damage to the premises occasioned by the removal.
19. PESTRUCTION 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. HAZARPOUS 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 bt!Siness, and are in compliance with all environmental laws. Hazardous sub$tances 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. INSOLVENCY. The appointment of a receiver, an assignment for the benefits of creditors, or the filing of apatition in bankruptcy by or against Lessee, will
constitute a breach of this Lease by Lessee.
22. PEFAUL T. 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 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 terminate Lessee's right to possession, and Lessor may enforce all 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 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 perform,mce of the Lessee's obligations. Lessor may, but will 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. PEPOSIT REFUNPS. 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 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 and Lessee arising out of this Lease, the prevailing party will be entitled
to reasonable attorney fees.
26. 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, orlo
L.essor 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 will be effective five (5)
days after mailing, or on personal delivery, or when receipt is acknowledged in writing.
28. HOLPINC 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 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. HEIRS, ASSIGNS, SUCCESSORS. This Lease is binding upon and inures to the benefit of the heirs, assigns, and successors of the parties.
31. 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 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.S.
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 denominator
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 PISABILlTIES 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 with a professional familiar with the requirements of the Act
35.LESSOR.S LIABILITY. 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 of
such tille or interest will be substituted as the Lessor under this Lease, and the original Lessor will be released of all further liability; provided, that all deposits will
be transferred to the grantee.
36. ESTOPPEL CERTIFICATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, acknowledge, and deliver to Lessor a statement in writing: [1] certifying that this
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 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 that there are
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 conclusively
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 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 [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 buyer designated by Lessor such
financial statements of Lessee as may be reasonably required by such lender or buyer. NI financial statements will be received by the Lessor or the lender or
buyer in confidence and will be used only for the purposes set forth.
Page 2 of 3
1 .
.'
3(0 "b23~
Property Address
11847 Dublin Blvd. ...._oJlin. 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 he or she has thoroughly read and approved each of the provisions contained in this
Offer, and agrees to the terms and conditions specified.
"',..~ ~ _ 9- 7--6:) La.... Oa~
Receipt for deposit acknowledged by Date
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer a~d agrees to Lease the premises on the terms and conditions set forth above.
M~
Lessor
Date
9 !~/d r
Lessee acknowledges receipt of a copy of the accepted Lease on (date)
L-J L-J
(initials)
Page3of3
'f
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 tenmnation.
i,
~~~
Jod one
1-7-os-
Date
/
31~'
,..
( .i'~
2f6"JfJ 23('
"
COMMERCIAL LEASE AND DEPOSIT
RECEIVED FROM
The sum of $ 6.800.00
will be applied as follows:
Simin .Lalefar and Hermin Laletar
( Sixty Eiaht Hundred and no/100 dollars), evidenced by
Check
hereinafter referred to as LESS!:E,
. as a deposit which will belong to Lessor and
TOTAL RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
Rent 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--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 Califomia , described as the oremises located at 11837 Dublin Blvd. Dublin. CA
consisting of approximately 6.800 square feet, upon the following terms and conditions:
1. TERM. The term will commence on December 1. 2006 and end on November 30. 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 the
1 st day of each month. All rents will be paid to Lessor or his or her authorized agent, atthe 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 ~ days after due date, lessee agrees to
pay a late charge of $ ~Ius interest at-1L% per annum on the delinquent amount. Lessee further agrees to pay $ ~foreach 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 Home Fumishina 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 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 will increase the existing rate of insurance upon the property, or cause cancellation of insurance policies covering the
property. Les.see will not conduct or permit any saie 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 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.
7. MAINTENANCE, REPAIRS, ALTERATIONS. 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, including plate glass, electrical wiring, plumbing and heating and air '.
eonditioninginstallatlons, 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 walls, and
structural foundations (including any retrofitting required by govemmental authorities) and: -****...******
Lessee &ill, Dwlil 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 will give Lessor at least two (2) days written notice in order that Lessor may post appropriate notices to
avoid any liability for liens.
8. ENTRY AND INSPECTION. Lessee will permit 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 sixty (60) 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 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 the
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.
10. 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 deUvered. Lessee may tenninate
this Lease if possession is not delivered within ~ days of the commencement term In Item 1.
11. LESSEE'S INSURANCE. Lessee, at his or her expense, will maintain plate glass, public liability, and property damage insurance insuring Lessee and
Lessor with minimum coverage as follows: 1 Million 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 lessor
prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE. 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 trade fixtures.
13. SUBROGATION. To the maximum extent permitted by insurance policies which may be owned by the parties, Lessor and lessee waive any and all rtghts
of subrogation which might otherwise exist.
14. UTILITIES. Lessee agrees that he or she will be responsible for the payment of all utilities, including water, gas, electricity, heat and other services delivered
to the premises, except: *************************************,*************"**********************.'A'***************,***************1f**ir***************.** .
15. 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 written
consent of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
16. ABANDONMENT OF PREMISES. lessee will not vacate or abandon the premises at any time during the term of this Lease. If 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 deemed to be
abandoned, at the option of Lessor.
Page 1 of3
~.
3f'(,'''bZ3 (
Property Address
11837 Dublin Blvd. Dublin. CA
17. CONDEMNATION. Ifany 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 rentfor the remaining
term as the value ofthe 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, 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 movinge)(pellses.
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 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 MATERIAL$. 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 envlronmentallqws 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. 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, will
constitute a breach of this Lease by Lessee. h
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 Ule 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 unpaid rent
which 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 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 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 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 will not be obligated to, apply all or portions .of the
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 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 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. 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
to reasonable attomey fees.
26. 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, '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 will be effective five (5)
days after mailing, or on personal delivery, or when receipt Is acknowledged In writing.
28. HOLDINC 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
$ 10.200.00 , 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. HEIRS, ASSIGNS, SUCCESSORS. This Lease Is binding upon and inures to the benefit of the heirs, assigns, and successors of the parties.
31. 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 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:S.
Consumer Price Index for All Urban Consumers (1982-84= 100) rCPI"). 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, an? the denominator
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 DISABILITIES 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 with a professional familiar with the requirements of the Act.
35, LESSOR'S LIABILITY. 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 of
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 all deposits will
be transferred to the grantee.
36. ESTOPPEL CERTIFICATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, acknowledge, and deliver to Lessor a statement in writing: [1] certifying that this
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 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 that th~re are
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 conclUSively
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 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 [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 buyer designated by Lessor such
financial statements of Lessee as may be reasonably required by such lender or buyer. All financial statements will be received by the Lessor or the lender or
buyer in confidence and will be used only for the purposes set forth.
Page 2 of3
,,'
Property Address
11837 Dublin Blvd. Dl.Iulln. CA
4OZY623r
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: .
Exhibit A: Floor Plan
Exhibit B: Ootion to Extend the Lease
Exhibit C: None
Lessee
The undersigned Lessee acknowledges that he or she has thoroughly read and approved each e provisions contained In thlli
Offer, and sgr to the termli and conditionli lipecifled. .~
Hl~JlJ;@)/~br\1 Dare
Date ////;7 /~
1/ /zd of.
Receipt for deposit acknowledged by
i.
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and agreeli to Lealie the premises on the terms and condltlonli liet forth above.
Lessor ~ 1LwM-
Date
II/u/lJ t.
,
11/2'/ tJ f..
LLJ~
(initials)
Lessee acknowledges receipt of a copy of the accepted Lease on (date)
Page 3 of 3
,/
Property Address
11837 Dublin Blvd. DULI"n. CA
...
+--
.-
.
,
1 :
I
9 i.,.
H r:'
f
. '
I
,
,
~;.
~l
(~
I
I
'-$
I
J.
'\
- . -, - ';;'~~'s ~ ~
..
I
I
~
l~
exhibit A
Floor Plan
....."" : Ii I
~ .1\
.~~ 'I
!
,
I.
t :
,
~ I
\
L
..
Lf I 'b231"
i
I.
. ,
. '
: l
I
;1
f
l
I
I!
;
1
t
t
\ (5;'/ / /////../ / /,.~/ ~ I!
I .< -),.y/^>'^/<<~~. .j
I i I // / / / / //// ;- J
\ ' I 11 (/
" = ~l ~ /f/)
-r.:::: - - " ~'._~,/I
t" . --A . ~ " " " '. " '" ..... ~.
'"W . " '- "'" "'""... " , '-').""'-
L . / / / // r-.", " ~-:-)- _._..._~-~._~~ . .-:..-:
/ / /_ .L~-~;.:a ',-;'-. _ Jo.' .' :
! - --_.:::.=:-;:;.-:_::;:-=....=_._~ .-........" .-
"
" '''''~
.. ~l" -.,,,,,'
C'>- '\' ,,'. '\ ~~. ',,, ~ '
tS~<<<<, :<?- ,}:"~\J
'~../~<~/~k.~~~ "
. '. y >.~~/ /)")T ~. i
/ . / /.//. ; / / . I
i
. ~
J.- ~~.
-I-
4Z~Z34
','
Property Address
11837 Dublin Blvd. Duulin. CA
Exhibit B
Option to Extend Term
Tenant shall have the right and option to extend the term of this Lea~ for one additional period of three years commencing on expiration of the Original Term
specified in Exhibit B of this Lease (the "Option to Extend Term") provided:
(a) Tenant has fully and faithfully performed all the terms,covenanls, 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 Term of the Lease.
(b) Written notice of Tenant's ele:;tion to renew the term of this Lease is delivered by Tenant to Landlord at least 180 days before expiration of
the Original Term speclfied 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 with
Item 32 of this Lease. .<>
L[?;, 'tJ23<=j
'.
.
~ .
,Il-
SHOPPING CENTER LEASE
"'\
Between
BERKELEY LAND COMPANY, INC.
a California Corporation,
Landlord
and
CHEF'S TOUCH CATERING
Tenant
Dated:
/1/z.t5/'Jp
I,
.'J I>P-~.
ARTICLE 1.
1.01.
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.
ARTICLE 5.
5.01.
5.02.
5.03.
5.04.
ARTICLE 6.
6.01.
6.02.
6.03.
6.04.
6.05.
6.06.
Lf4~ 234
SHOPPING CENTER LEASE
Table of Contents
LEASED PREMISES
Agreement to Lease
''Premises'' Defined
Right to Use Common Areas
TENANT'S BUSINESS USE AND NAME
<'"
Permitted Business Use
Tenant's Business Name
TERM OF LEASE
Commencement Date and Term
RENT AND OTHER CHARGES
Initial Minimum Monthly Rent
Common Area Maintenance Costs
Utility Services and Charges
Taxes
Additional Rent
Late Charges
MAINTENANCE AND USE OF COMMON AREAS
Maintenance and Control
"Common Areas" Defined
Tenant's Right to Use
Tenant and Employee Parking
CONSTRUCTION AND REPAIRS'
Condition of Premises
Alterations and Improvements by Tenant
Tenant's Construction
Alterations and Improvements by Landlord
Repairs to Premises
Ownership of Improvements
"
, .
,~
ARTICLE 7.
7.01.
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.
9.01.
9.02.
9.03.
9.04.
9.05.
ARTICLE 10.
10.01.
10.02.
10.03
ARTICLE 11.
11.01.
11.02.
11.03.
11.04.
11.05.
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
INSURANCE
Insurance by Landlord
Insurance by Tenant
Subrogation Waiver
Proceeds
Indemnification
SUBORDINATION, ATTORNMENT, AND ESTOPPEL
CERTIFICATES
Subordination
Attornment
Estoppel Certificates
CONDEMNATION
Termination of Lease
Continuation of Lease
Option to Terminate Lease
Condemnation Award
Waiver
11
Lf 5 'fJ 23"1..
"
',,:
ARTICLE 12.
12.01.
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.
13.11.
13.12.
13.13.
13.14.
13.15.
13.16.
13.17.
LKoCJb23q
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
11l
"
. .
.
41'1J 181
SHOPPING CENTER LEASE
This Lease is entered into effective , by and hetween 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 and performed 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" Dermed
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 PremiseSQf above the interior ceilings of the Premises.
Right to Use Common Areas
Section 1.03. Tenant has the nonexclusive right to use, in common with 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 NAME
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 business is Chefs Touch Catering. Tenant may
not change its business name during the term of this Lease without the written consent of
Landlord. If Landlord consents to a change in the name, Tenant shall be solely responsible for
all costs of changing the name, including costs of changing the name as it appears in any signs of
the Shopping Center, ifany.
1
, .
. .
"1CO "b -Zyt
ARTICLE 3. TERM OF LEASE
Commencement Date .
Section 3.01. The Commencement Date shall be October 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$500.00per
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 offor deduction. lithe Term
begins (or ends) on other that the first (or the last day) of a calendar month, the Minimum
Monthly Rent for the partial month shall be prorated on a daily basis, based on a 30-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 Ten ant 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 Costs
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 multiplying (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 ground 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 owned 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
amount determined 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 ofthe bin for such charges. The amount billed to Tenant shall be based on Landlord's
estimate of Common 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 the
immediately preceding calendar year. Within 90 days after the end of each calendar year,
2
'.
. .;
lq an Z3t:t
Landlord shall deliver to Tenant an itemized statement of the total Common Area Maintenance
Costs for 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 COmnlon Areas (defined in Section 5.02) ina manner deemed
reasonable and appropriate by Landlord, including but not limited to all costs and expenses of or
relating to the following: operating, heati1'tg, 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 ofthe 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 Maintenance Costs" shall include
a management fee paid to Landlord or to a management company employed by Landlord and
equal to fifteen percent (15%) ofthe total Common Area Maintenance Costs.
Utility Services and Charges
Section 4.03.(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 term of this 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 Maintenance Costs, and Tenant shall pay the bill for those
services at the same time Tenant pays its share of Common Area Maintenance Costs. For utility
services provided by Landlord that are not separately metered and that are used by Tenant in
common with other Tenants, Tenant shall pay Landlord a proportionate share based on total
square footage of gross ground floor area of all Tenants using the common utility services.
(b) Landlord may elect at any time during the term of this Lease, but without any
obligation to do so, to furnish, or to select an agent or independent contractor to furnish, at
3
"
. .
8Di1bt31
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 Lind10rd 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 land, 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
the 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 taxes 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 during a Tax Year by a fraction, the numerator
of which is a numb~r equal to the total square feet of gross ground floor area in the Premises, and
the denominator of which is a number equal to the total square feet ofrentabt.e ground gross floor
area in the Shopping Center owned 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
Common Areas). Tenant's annual share of Taxes shall be paid in advance on a quarterly basis in
equal installments or upon such other intervals and in pro-rata installments based on the length of
the billing period as Landlord may determine and in the amount billed by Landlord; concurrently
with Tenant's payment of Common Area Maintenance Charges under this Lease. At Landlord's
option, Landlord may estimate the amount of Ten ant's quarterly or other periodic share of Taxes,
provided the estimate does not exceed by more than 10 percent the actual amount of Taxes for
the same calendar 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 Tenant with a written statement for the preceding Tax
Year, showing the total Taxes, the amount of Taxes actually paid by Tenant for that Tax Year,
4
"
"
'8IVbZ~
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 Annual Tax Statement. In the case of an overpayment, Landlord shall refund the
amount of the overpayment to Tenant within the same 30-day period governing underpayments;
provided, however, that if Tenant is then in default under this Lease or otherwise indebted to
Landlord, Landlord may deduct the amount owed to it from the overpayment.
(c) "Tax Year" means the 12 full calendar months of the term beginning on January 1
immediately following the Commencement Date and 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 shallbegin 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. rfLandlord 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, including 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 acknowledges 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 of which will be extremely difficult and
impracticable to ascertain. Such costs include, but are not limited to, processing, administrative
and accounting costs. Accordingly, if any installment of rent or any additional rent of any other
some due from Tenant shall not be received by Landlord within 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
5
. ,
. .
'62. 9J ~3Vl
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 Ten ant'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. MAINTENANCE 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, illU'ininate, 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, buildings, or facilities in the Common Areas,.
provided the change, construction, or removal does not permanently and unreasonably interfere
with Tenant's ingress and egress to the Premises. Landlord may employ and discharge all
personnel 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 roles andr~lations for the
Common Areas; and close the Common Areas when necessary to make repairs, changes, or
alterations to the Common Areas or to prevent the acquisition of public rights in the Common
Areas. In the event of a temporary closure of the Common Areas or the alteration,
rearrangement, or other change in the facilities of the Common Areas (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. "Common Areas" means all areas, facilitiest space, equipment, and signs
made available by Landlord at any time for the common and joint use and benefit of Landlord,
Tenant, and other tenants and occupants of the portion of the Shopping Center owned by
Landlord, including their respective employees, agents, customers, and invitees. "Common
Areas" includes the following, to the extent provided by Landlord: parking areas, driveways,
access roadst landscaped areas, truck setviceways, loading facilities, pedestrian malls, stairs,
ramps, sidewalks, public restrooms, and elevators. The rights granted to Tenant to use the
Common Areas apply only to Common Areas owned by Landlord.
6
. ,
~300~3A
Tenant's Right to Use
Section 5.03. For the term ofthis Lease, Landlord grants Tenant and its employees,
agents, customers and invitees, the non-exclusive right, in co.mmon 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 govern 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 is a copy of Landlord's current Rules, ifany.
Tenant and Employee Parking
'"
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 all times during
the term of this Lease keep Landlord furnished with a current list oflicense plate 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.
ARTICLE 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 acknowledges 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 ofLaIidlord. 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 Ten ant or the Shopping
Center, and in all respects shall comply with the requirements for Tenant's Work described in
. Section 6.03 of this Lease.
Tenant's Construction
Section 6.03.(a) At its sole cost and expense, Tenant shall commence and complete
construction of all improvements or alterations to the Premises that are necessary for the conduct
of Tenant's business on the Premises ("Tenant's Work"). All Tenant's Work must be performed
7
'.
'b<-t aclY1.
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 of this Lease, builder's risk
insurance for the Premises. This insurance shall cover the full replacement value of all work
perfonned 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
encumbrance 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 encumbrance or to otherwise discharge it by deposit or bonding. If Landlord pays or
otherwise 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. Landlord's right to payor otherwise 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.
(e) In performing or causing Tenant's Work to be perfonned, Tenant, at Tenant's sole
cost and expense, shall comply with all applicable laws, regulations, orders, and requirements of
8
"
35 OZ;22f'(
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. If any 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 Ten ant'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 Ten ant'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
hannless 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 Work.
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 of the 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 wans, 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 shall maintain and keep in good order, condition, and repair
the foundations, exterior walls (excluding the storefront wall, windows, doors, and plate glass),
and the roof of the Premises. Landlord'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 make any repair, except in the case of emergency, until it receives
written notice from Tenant of the necessity for the repair. In making any repairs, Landlord shall
use its best efforts to perform the work with a minimum of disruption to Tenant's business.
9
"
'3G'b~Y1
(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 of the 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, ifany. Tenant's obligation to maintain and
repair does not extend to any areas or portions of the 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 make 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 include interest at the then-xpaximumlegal 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. Landlord shall have the option, however, on expiration or
termination of this Lease, of requiring Tenant, at Tenant's sole cost and expense, to remove any
or all such alterations, additions, and improvements from the Premises.
ARTICLE 7. DESTRUCTION OF PREMISES OR SHOPPING CENTER
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 damaged or destroyed by fire or any other casualty covered
by Landlord's fire and extended coverage insurance, Landlord shall promptly repair, rebuild, or
restore the Premises to substantially the same condition as was originally delivered to Tenant
under this Lease. Notwithstanding 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 insurance 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). Landlord shall commence repair, restoration, or rebuilding work, as
appropriate, not later than 60 days after the occurrence of the event causing damage or
destruction, and shall cause construction to be completed not later than 180 days after the
occurrence of the event causing damage or destruction. If Landlord does not commence or
complete Tenant shall have the right to terminate this Lease by giving Landlord written notice
with 10 days after expiration of the applicable time p.eriod.
10
"
"
<67f5b ~:?q
Right to Terminate Lease
Section 7.03. Notwithstanding Section 7.02 of this Lease, Landlord shall have 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
msurance.
(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 the cost of repair, restoration, or rebuilding exceeds a total of
45 percent of the then-replacement cost of the building.
(c) At 1~~P 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 of this Lease.
If Landlord elects to terminate this Lease under any of the above circumstances, Landlord
shall give written notice to Tenant not later than 30 days after occurrence of the 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 ofthe Premises.
Abatement of Rent
Section 7.04. If damage or destruction to the Premises renders the operation of Tenan.t'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,
if the damage or destruction results in the termination of this Lease, on the date of termination. If
Tenant 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 occupy.
Obligations for Repair or Rebuilding
Section 7.05. If this lease is not tenninated pursuant to the provisions of this Article,
Landlord's obiigation to repair and rebuild is limited to construction of the perimeter walls, floor,
ceiling, and roof of the Premises, and excludes interior finishing and the storefront for the
Premises. The Premises as completed by Landlord shall contain approximately the same amount
11
?; 3~ 2:3t'(
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 tenninate 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 of rebuilding or restoration, excluding costs covered by Tenant's insurance 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 Work could be filed.
ARTICLE 8. USE OF PREMISES
Storage
Section 8.01. Tenant may store on 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, sanitary, 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) Pennit 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 incidental telephone sale of
merchandise that Tenant is permitted to sell on the Premises to customers.
12
~lfJ ~3P(
(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~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 pennit 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
otherwise.
(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 all licenses 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, unless it obtains the prior approval of
Landlord. Tenant shall maintain all signs and other items described in thisoSection 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 Regulations
Section 8.06. Landlord shall have the right from time to time to adopt, amend, or
supplement rules and regulations relating to the Premises, the Common Areas, and the Shopping
Center. Ru1es and regulations in effect as of the date of this Lease, ifany, are attached to this
Lease as Exhibit C and are hereby incorporated by reference. Landlord shall notify Tenant in
writing of any amendment or modification made to the rules and regulations. Rules and
13
QD'1JZ3tt
regulations shall apply uniformly to all tenants in the Shopping Center. Tenant agrees to comply
with all roles and regulations; a failure 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 of a
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 subtease 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 Landlord deems
appropriate. Any 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 Landlord'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 written agreement for a
specific transfer that provides otherwise. The prohibitions against transfer described in this
Section include any transfer transaction described above that occurs by operation oflaw, 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 rent 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 transfer, 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 transferee 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 Tenant over the amount of rent payable under this Lease by Tenant to
Landlord.
(c) Any sublease, assignment, or other transfer agreement described in this Section must
recite the following: that it is subject and subordinate to this Lease; and that the termination by
Landlord of this Lease will, at Landlord's sole option, terminate the sublease, assignment, or
other transfer agreement.
(d) The transfer of corporate shares of Tenant by assignment, sale, bequest, inheritance,
operation of law, or other disposition shall not be considered a prohibited transfer transaction
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.
14
. .
q t'b ~Yt
(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. INSURANCE
Insurance By Landlord
Section 9.01. Landlord shall procure and maintain during 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 and maintain other insurance covering for Shopping Center, including the following:
liability insurance 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 year, but not more frequently, Tenant shall increase the amount of public
liability coverage, if 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.
15
"
"
C1211{) 13q
(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 of the State of
California.
Tenant's policy ofliability insUrance shall list Landlord as an additional or a named
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 bya 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. Tenant may
maintain all or part of the insurance req~ired under this Lease by means of a blanket insurance
policy so long as the provisions of this 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 fife and extended coverage insurance
policy or othetwise adversely affect the premiums 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 policies 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 term of this Lease 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 Tenant, and Tenant shall compensate Landlord for the cost of the insurance
premiums. Tenant shall reimburse Landlord 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
reimbursement within the time required under this Subparagraph shall be considered a default
under this Lease.
Subrogation Waiver
Section 9.03. Landlord and Tenant agree that in the event ofloss due to any of the perils
for which they have agreed to provide insurance, each party shall look solely to its insurance for
recovery. Landlord and Tenant hereby grant to each other, on behalf of any insurer providing
16
-.
q3~ 2-.?1
iDsurance 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 ordainage 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 hannless 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 assumed 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, AND ESTOPPEL CERTIFICATES
Subordination
Section 10.01(a) Except as provided in Subparagraph (b) of this Section, this Lease and
all of Ten ant'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
instrument ("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 Wlder
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 tmder this Lease and
continues thereafter to fully perform all its obligations under this Lease.
(b) Notwithstanding the provisions of Subparagraph (a) of this 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 the document, without
regard to the execution, delivery, or recording dates ofthe subordination instrument described in
this Subparagraph shall not require the consent of Ten ant, but Tenant agrees to execute and
deliver, in recordable form, an instrument requested by Lender or Landlord to confirm or
acknowledge the subordination.
17
?t '-t 6b 22>'1
Attornment
Section 10.02. If Landlord transfers its interest in 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 of 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 statut' of this Lease. The certificate shall be in the form
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 with 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 if so, a
description of the 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 aclmowledgment 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 Of of Ten ant defenses or offsets against the enforcement of this Lease that
may exist prior to the date of the written request for the 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 taken 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 actual physical possession of the Premises is taken by the
agency or entity exercising the power of eminent domain. Thereafter, both Landlord and Tenant
shall be release from all obligations under this Lease, subject to the provisions of Section 11.04
of this Lease.
18
"
..
QSfJ'JYt
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 of the 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 Month1y 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's expense, 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 taking includes
any portion of the Premises:
(a) More than 40 percent ofthe gross floor area of the 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
(d) 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 parking 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. This 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
eminent domain.
19
..-
?J&>fJ1.3b1
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.
Waiver
Section 11.05. Landlord and Tenant 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 termination of this 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) Any 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 ofthe Premises by Tenant. For these purposes, the absence
of Ten ant from or the failure by Tenant 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 perform any other provision of this Lease to
be observed or performed by Tenant, when the failure continues for 30 days or more after
written notice of Ten ant's failure is given by Landlord to Tenant; provided, however, that
if the default cannot reasonably be cured within the 30-day cure period, Tenant 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 within: 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 Tenant adjudged a bankrupt or ofa
petition for reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant, it is dismissed within 60 days); the
appointment of a trustee or receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Ten ant's interest in this Lease, when possession is not
restored to Tenant within 30 days; or the attachment, execution, or other judicial seizure
of substantially all of Ten ant's assets located at the Premises or of Tenant's interest in
this Lease, when that seizure is not discharged within 30 days.
20
V'fi11fJ 231
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 tho 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 of award of the amount by which the unpaid rent for the
balance of the term of this Lease after the time of award exceeds the amount 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 tenns ofthis Lease. As used in
Subparagraphs (a) and (b) of this 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) shall be construed as an
election to terminate this Lease unless a written notice oftennination is given to Tenant or the
termination of this Lease is decreed by a court of competent jurisdiction.
21
"
4C6Db 231
Landlord's Right to Relet
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 term, 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 make alterations and repairs to the Premises. Tenant shall be liable for all of
Landlord's costs in re1etting, 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 re1etting.
Landlord's Right 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. Anysum
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 this Lease.
Cumulative Remedies
Section 12.06. The remedies granted to Landlord in this Article shall not be exclusive but
shall be cumulative and in addition to all remedies now or hereafter allowed by law or provided
in this Lease.
Waiver 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 surrender the Premises in good order and condition (reasonable wear and
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. rfTenant 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, shall be
considered a month-to-month tenancy that may be terminated by either party on 30 days' prior
notice to the other. All terms of this Lease shall be fully applicable to the month-to-month
tenancy insofar as consistent with a month-to-month tenancy except proportionate share of
22
.'
~ .
orqDb Z3CC
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 detennined by the court in that litigation or in a separate action brought
for that purpose.
"
ARTICLE 13. MISCELLANEOUS
No Personal Liability of Landlord
Section 13.01. Tenant agrees that Landlord shall have no p~onalliability 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
ownership 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 ofa 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 Ten ant's claim.
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 Tenant 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 (including 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.
23
'. .
t OD un "'231
Removal of Hazardous Materials
Section 13.04. Ii 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.
Landford-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 ispennitted or required to make under this Lease, whether to the Premises, adjoining
premises, or the building containing the Premises. For any entry made while Tenant is open for
business, Landlord shall use its best efforts to minimize interference with the conduct of Tenants
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 any agent or broker with respect to Tenant's lease of the Premises, each party
agrees to defend, indemnify, and hold the other harmless from and against all 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 interest.
24
.. .
10 l Db ;?/3q
Notices
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. California 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 manner 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
Section 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. This Lease may be modified or amended
only by an instrument in writing signed by both Landlord and Tenant.
Exhibits
Section 13.13. The following exhibits are incorporated by reference in and constitute a
part of this Lease:
EXHffiIT A: Description of Premises
EXHIBIT B: Outline of Landlord's Property
EXHIBIT C: Rules and Regulations
EXHIBIT D: First Right
25
~
I Oz'"1J '2.3q
Invalidity or Unenforceability
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 be
presumed or implied. Any such waiver must be expressly made in writing 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 in a sum less than what is actually owing shall not be deemed a
compromise, settlement, accord and satisfaction, or other final disposition of the amount owing
unless Landlord agrees otherwise in writing.
Captions
Section 13.16. The captions and numbers of the Articles and Sections of this 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 following the commencement of
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
following the end of each lease year at the place then fixed for the payment ofrenta 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 satisfactory to Landlord in scope and substance. The
statements referred to herein shall be such form and style and contain such details and breakdown
as Landlord may reasonably determine.
26
"
Executed on
California,
() c1- /
, 1998, at
lD3 en CZ3t{
tvAvnuJ ~ Ca-
BERKELEY LAND COMPANY, INC.
a Calif1~.o . ration
By: Ju&
, -
nffPA W }u~
Its
eu!tf'lAv-V( Ve"ft.r +- /f1.6 7 Ji, c
I). tOn . ~~~~. ~~ Cv1/Jf1
W~/~
Its
'"
27
...- .
EmmIT A
Measurement of Premises
Approximately 5,630 square feet measured outside of exterior wall to outside of exterior wall.
..
lofl
I.DY.Ob~'t
,.
[QB-tfJ 2.01
p.02
...~-- -~-----
B
r----L .
. ,
, I.' .
I:i.
'. . I' S -.
-i
.1
"f- ': >r
. I
.
~. ",.\
. '.
.
1
. ."
"'. \,~ '\-"'\;) I' I
" '~~~J,'
.
,
.,
I '(i~<<~~~~~
,51
L-./..
".' ..' ~.'., ." " ..... ~ . . .". . l'
.; . :',-. .' .'; '.: "';~~.~ .
. '.":' I., .~. .... .-
. . .' . .
; ." ..... ."
. . :... " '.. .
.:
EXHIBIT B
."
IO~'b Z?fi
EXHIBIT C
RULES AND REGULATIONS
OF THE SHOPPING CENTER
A. COMMON AREA
1. All Tenants shall use their best efforts to require their respective customers,
invitees and employees to comply with all 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 Cornmon 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 Center for such purposes.
B. STORE INiERIORS
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 tenant of the Shopping Center, and until removal shall be stored:
(a) In adequate containers. which such containers shall be located so
as not to be visible 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.
3. No portion of the shopping Center shall be used for lodging purposes.
4. Neither sidewalks nor walkways shall be used to display, store or replace any
merchandise, equipment or devices.
5. No advertising medium shall be utilized which 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 portion or portions thereof
which would:
(a) Violate any law, ordinance or regulation,
10f3
~~
\D7oo Z3Cf
(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 advertising medium,.shall be utilized within the Shopping Center which can be
seen or experienced outside the premises of any tenant advertising any auction, fire, banlcruptcy
or going out of business sale.
c. CONDUCT OF PERSONS
The following rules and regulations for the use of roadways, walkways, automobile
parking areas, and other common facilities provided for the use of tenants and their customers,
inviteesand employees are hereby established.
1. No person shall use any roadway or walkway except as a 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 manner, in
accordance with the directional or other signs or guides. Roadways shall not be used for parking
or stopping, except for the immediate 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 or the occupants of such vehicle are customers or
business invitees of the retail establishments within the Shopping Center. All motor vehicles
shall be parked in an orderly manner within the painted lines defining the individual parking
places. During 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 connection with 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
vehicle 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 consent of Landlord, shall be in or on any part of
the Common Area to:
20[3
lo~ Vb 231
(a) Vend, peddle or solicit orders for sale or distribution of any merchandise,
device, service, 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, p.f.itrol, picket, demonstrate or engage in any conduct that
might tend to interfere with or impede the use of any of the Cornmon Area
by any Permittee, create a disturbance, attract attention or harass, annoy,
disparage or be detrimental to the interest of any of the retail
establishments within the Shopping Center.
(f) Use any Common Area for any purpose when none of the retail
establishments within the Shopping Center is open for business or
employment.
(g) Throw. discard or deposit any paper, glass or extraneous matter of any
kind, except in designated receptacles, or create litter or hazards of any
kind.
(h) Use any sound-making device of any 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 material or other improvement within the Shopping Center, or
.the property of customers. business invitees or employees situated within
the Shopping Center.
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
access and convenience in shopping at the retail establishments in the Shopping Center is limited
and controlled by Landlord.
Landlord and any tenant shall have the right to remove or exclude from or to restrain (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 any
unauthorized act, whether or not such party is not the agent of other parties or tenants of the
Shopping Center, unless expressly authorized or directed to do so by such party or tenant in
writing.
30f3
!D4tJZ~
EXHIBIT D
FIRST RIGHT
Parties
This is an Addendum to the Real Property Lease between BERKELEY LAND COMPANY, -,
INC. ("Lessor") and CHEF'S TOUCH CATERING ("Lessee") dated Oc&--/ /q?j'L,
1998, regarding the premises commonly known as 11851 Dublin Boulevard, Dublfu, California
(the "Premises''), which isa part of the Dublin Square Shopping Center (the "Property'') owned
by Lessor. Lessee intends to operate a delicatessen in the Premises subject to the terms of the
Lease.
PutPose
Lessee is aware 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 selling 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 Lessee a First
Right to Negotiate regarding a new lease if Lessor's future use of the Property is, in Lessor's
opinion, appropriate fora delicatessen.
Lessee's First Right to Negotiate
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
decision 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 lease 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.
Procedure for Negotiations
In the event Lessor determines that the rebuilt Property is appropriate for a delicatessen, Lessor
shall send to Lessee a written notice requesting that lease negotiations commence. 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.
Dated:
Dated: 0&1- ./_ /'14r
C(.AjNP,"''1IJeJ'/~ -+ (Yl ~-rh
'0 .~~? ~T~ ~A$Z~ po_,
tIts r::tcs1ck'a.!-
Lessor: BERKELEY LAND CO., INC.
By
Its
1 of 1
..... ..,. IV"-..
IID4b 1-3~
FIRST ADDENDUM to SHOPPING CENTER LEASE
between
BERKELEY LAND COMPANY, INC. and CHEF'S TOUCH CATERING
. (;:-- mr5"
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 Property 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
~^ ~g bnnn l'Ind exhaust system. Reimbursement is conditioned upon obtaining all applicable
city and county permits, approvals, and certifications.
-
" /6tU AY-t:is. l./p g,rtt..C(//1 <7 W..r-l-vOtJ"Yn ~'.. ArVel 6 Y Ve- SVIr IPrc 1'" '7
.~.-f4 1<o,1ck- Roov'
~ 1- c:, Au- El.Xt I f'm..m- tv J/ r k .u......
,
Cftt;fa roo, H tA 7P:r1 n b
/
ex~J+ ~ s v-
fJnJ~Y oP ~
J:rtc(0tnc; ~ fhx;'b
StA./~ to a/elL .
,
lofl
) [ I un 2.~(
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. ("Landlord") and Chefs Touch Catering
(''Tenanf').
" PURPOSE
This Second Amendment is made with reference to the following:
A. Landlord and Tenant wish to have a definite termitlation date of the lease, change
section 4.02 (b) of the lease and delete item # 4 of the First Addendum to the
Lease.
AGREEMENT
Therefore it is agreed as follows:
1. Section 4.02 (b) of the lease shall 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 of the 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 of the Lease effective January 1, 2006
Dated:~006
Landlord:
:;.t'eI"J~nd~
11ll:~
Dated: f b-r ,2006
Tenant:
Chefs Touch Catering 1
B~~ ..~
Its: ,oFe S/~
{
.
1':'- .~
"
1/2- i1()2~(
II
I
COwaMERCIAL LEASE AND DEPOSIT
RECEIVED FROM City Ministries Intemational hereinafter referred to as LESSEE,
The sum of $ 6.000.00 ( Six Thousand ..............................................__.................._...........******................* doUars), evidenced by
Check . as a deposit which will belong to Lessor and will be applied as follows:
$
$
$
BALANCE DUE PRIOR TO OCCUPANCY
$ 3.000.00
$ 3.000.00
$
TOTAL
RECEIVED
Rent for the period from November 1. 2005 to November 30. 2005 $ 3,000.00
Security deposit (not applicable toward last month's rent) $ 3.000.00
Other $
TOTAL
$ 6.000.00
$
$ 6.000.00
In the event this Lease is not accepted by the Lessor within.....1L- 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 Dremises I~ted 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 SeDtember 30. 2008.
2. RENT. The total rent will be $197.000.00. Rent for the 1st month will be free to the Lessee. Rent will be $ 3.000.00 per month for the zm through 4th month.
Rent will be $3.500.00 per month for the 5th through 8th month, and will be $4.500.09 per month for the tjh through 1t" month. Beginning year 2, rent will be
$6.000.00 per month. Beginning year 3, rent will be $7.000.00 per month. Rent will be payable em the 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. 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 -L days after due date, Lessee agrees to pay a late charge of $ ..mL-Plus interest at
--1L % 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 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 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 will 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 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 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.
7. MAINTENANCE, REPAIRS, ALTERATIONS. 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, 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 received,
normal wear and tear excepted. Lessee will be responsible for all repairS required, except the following which will be maintained by l.essor: roof, exterior walls, and
structural foundations (including any retrofitting required by 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 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 liens.
8. ENTRY AND INSPECTION. Lessee will permit 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 sixty (60) 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 reasonable times.
9. INDEMNIFICATION OF LESSOR. Lessor will not be liable for any damage or injury to l.essee, 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 premises, and to indemnify Lessor for any
expense incurred by Lessor in defending any such claims.
10. POSSESSION. If Lessor is unable to deliver possession of the premises aUhe 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 delivered. Lessee may terminate
this Lease if possession is not delivered within ~ days of the commencement term in Item 1.
11. LESSEE'S INSURANCE. Lessee, at his or her expense, will maintain plate glass, public liability, and property damage insurance insuring Lessee and
l.essor with minimum coverage as follows: 1 Million 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 lessor
prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE. 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 trade fixtures.
13. SUBROGATION. To the maximum extent permitted by insurance policies which may be owned by the parties, Lessor and lessee waive any and all rights
of subrogation which might otherwise exist.
14. UTILITIES. Lessee agrees that he or she will be responsible for the payment of all utilities, ineluding water, gas, electricity, heat and other services delivered
to the premises, except: ***********",*****III-*.***************************************rJrfr*********It***_***ir**********H************************************* .
15. SIGNS. Lessee will not place, maintain, nor permit any sign or awning on any exterior door, wall, or window of the premises withoutthe express written
consent of Lessor, which will not be unreasonably withheld, and of appropriate govemmental authorities.
16. ABANDONMENT OF PREMISES. Lessee will not vacate or abandon the premises at any time during the term of this Lease. If 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 deemed to be
abandoned, at the option of Lessor.
Page 1 of3
.~
.... -.
,.
11~"b231
Property Address
11825 Dublin Blva. _.Jblin. 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 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 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.
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 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 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 the premil::es.
21. 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, will
constitute a breach of this Lease by Lessee.
22. DEFAULT. In the event of any breach of this Lease by Less~e, 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 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 terminate Lessee's right to possession, and Lessor may enforce all 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 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 will 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. 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 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 and Lessee arising out of this Lease, the prevailing party will be entitied
to reasonable attorney fees.
26. WAIVER. No fail!lre 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 to
l"essor 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 will be effective fIVe (5)
days after mailing, or on personal delivery, or when receipt is acknowledged in writing.
28. HOLDINC 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
$ 10.500.00 , payable in advance and otherwise subject to the terms of this Lease, as applicable, until either party will tenninate the tenancy by giving the
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. 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. INTENTIONALLY LEFT BLANK.
33. INTENTIONALLY LEFT BLANK.
34. AMERICANS WITH DISABILITIES 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 with a professional familiar with the requirements of the Act.
35. LESSOR'S LIABILITY. 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 grantee of
such titie or interest will be substituted as the Lessor under this Lease, and the original Lessor will be released of all further liability; provided, that all deposits will
be transferred to the grantee.
36. ESTOPPEL CERTIFICATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, acknowledge, and deliver to Lessor a statement in writing: [1] certifying that this
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 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 that there are
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 conclusively
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 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 [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 buyer designated by Lessor such
financial statements of Lessee as may be reasonably required by such lender or buyer. All financial statements will be received by the Lessor or the lender or
buyer in confidence and will be used only for the purposes set forth.
Page 2 of 3
Property Address
11825 Dublin Blvd. Dublin. CA
,
,... .
"
.
/I r..f: "b "2,.3~
37. GUARANTY. For valuable consideration, the undersigned Bob Johnson and Jacqueline Johnson ("Guarantor") unconditionally guarantees to Landlord all
obligations of Tenant under the herein Lease including paymentand perforrnance of both monetary and no monetary obligations during the Original Tenn and all
extended tenns and any holding-over period hereunder. The failure or revocation of this guaranty as to any guarantor whether by reason of death, bankruptcy or
otherwise or failure to perfonn 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 tenns or obligations under this Lease, release or substitute or
modify the obligations of any guarantor or any security for perfonnance 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 perfonnance. Guarantor waives to the
fullest extent pennitted 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 waive
any rights arising out of an election of remedies by Landlord. Guarantor waives rights to notices of any kind including demands for perfonnance, notices of protest
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 in
default under this Lease have been paid.
~on
fV.J{f''-
38. E:NTIRE AGREE:MENT. 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 she has thoroughly read and approved each of the provisionS contained in this
Offer, and agrees to the terms and conditions specified.
Lessee ~ Dateq...~6)r05:::
Receipt for deposit acknowledged by
"""" C\'X""{, '~JU~i0'--- Dale Ii ~ dn -6-;
V Date
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and agrees to Lease the premises on the terms and conditions set forth above.
Lessor ~
Date
9h.(}hr
.. ,
Lessee acknowledges receipt of a copy of the accepted Lease on (date)
r~~~'
Page 3 of 3
"t
II 6 '1J23'1
"
"
.
COMMERCIAL LEASE AND DEPOSI-r
RECEIVED FROM
The sum of $ 3.460.00 (
dollars), evidenced by Check
All Video Reoair hereinafter referred to as LESSEE,
Three Thousand Four Hundred SixtY *.frlr*************************1rlr************************************.H**********...
, as a deposit which will belong to Lessor and will be applied as foUows:
TOTAL RECEIVED BAlANCE DUE PRIOR TO OCCUPANCY
Rent for the period from ~ to Aoril 30. 2006 $ 1.730.00 $ $ 1.730.00
Security deposit (not applicable toward last month's rent) $ 1.730.00 $ $ 1.730.00
Other $ $ $
TOTAL $ 3.460.00 $ $ 3.460.00
In the event this Lease is not accepted by the Lessor wlthin_1L- days, the total deposit received wilibe refunded.
Lessee offers to Lease from Lessor the premises situated In the City of Dublin.. .' County of Alameda
State of California. described as the oremises located at 11811 Dublin Blvd. Dublin. CA
consisting of approximately 1.730 square feet, upon the follewlng tenns and conditions:
1. TERM. The tenn will commence on Aoril1.2oo6 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. All rents
will be paid to Lessor or his or her authorized agent, at the following address 321 Hartz Ave. Suite 200. Danville. CA94526 or at such other places as may be
?esignated by Lessor from time to time. In the event rent is not paid within -3- days after due date, Lessee agrees to pay a late charge of $ ~Ius
Interest at -.lL % per annum on the delinquentamounl Lessee further agrees to pay $ ~for each dishonored bank check. The late charge period is not a
grace period, and Lessor is entiUed to make written demand for any rent If not paid when due.
3. USE. The premises are to be used for the operation of Reoair and.Sales Audio and Video Eauioment 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 pennitted to be made
upon the premises, nor acts done, which will increase the existing rate of insurance upon the property, or cause cancellation of insurance policies covering the
property. Lessee will not conduct or pennit 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 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.
7. MAINTENANCE, REPAIRS, ALTERATIONS. Unless otherwise indicated, Lessee acknowiedges 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, electrical wiring, plumbing and heating and air "
conditioning installations, and any other system or equipment. The premises will be surrendered, at tennination 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 walls, and
structural foundations
Lessee 0 will, ~ 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 will give Lessor at least two (2) days written notice in order that Lessor may post appropriate notices to
avoid any liability for liens.
B. ENTRY AND INSPECTION. Lessee will pennit 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 pennit Lessor, at any time within sixty (60) 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 reasonable times.
9. INDEMNIFICATION OF LESSOR. .Lessor will not be liable for any damage or injury to Lessee. or any other persqn, or to any property, ocamlng on the
premises. Lessee agrees to hold Lessor harmless from any daims 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. 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 delivered. Lessee may terminate
this Lease if possession is not delivered within ..!L- days of the commencement term in Item 1.
11. LESSEE'S INSURANCE. Lessee, at his or her expense, will maintain plate glass, public liability, and property damage insurance insuring Lessee and
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) days written notice to Lessor
prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE. Lessor will maintain hazard insurance covering one hundred percent (100%) actual cash value of the improvements throughout
the Lease tenn. Lessor's insurance will not insure Lessee's personal property, Leasehold improvements, or trade fixtures.
13. SUBROGAnON. To the maximum extent pennitted by insurance policies which may be owned by the parties, Lessor and Lessee waive any and all rights
of subrogation which might otherwise exist.
14. UTILITIES. Lessee agrees that he or she will be responsible for the payment of all utilities, including water, gas, electricity, heat and other services delivered
to the premises. except: *********************************************..."'.************.***********************************..***************************** .
15. SIGNS. Lessee will not place, maintain, nor pennit any sign or awning on any exterior door, wall, or window of the premises without the express written
consent of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
16. ABANDONMENT OF PREMISES. Lessee Will not vacate or abandon the premises at any time during the lenn of this Lease. If 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 deemed to be
abandoned, at the option of Lessor.
Page 1 013
--
i>
1!~J1b7Y7
ProPerty Address
11811 Dublin Blvd. D\lblin. 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, tenninate as of the date the condemnor acquires possession. Lessee will be required to pay such proportion of the rent for the remaining
tenn as ~e 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 her option, tenninate 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 tenninate 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.
18. TRADE FIXTURES. Any and all Improvements made to the premises during the tenn will belong to the Lessor, except trade fixtures of the Lessee. Lessee
may, upon tennination, 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 teon, from any cause except acts or omission of Lessee,
Lessor will not promptly repair the premises. Such partial destruction wllltenninate 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 the premises.
21. 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, 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 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 unpiiid 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 perfonn 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 tenninate Lessee's right to possession, and Lessor may enforce all 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 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 will not be obligated to, apply all or portions of the
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 security
deposit in payment of the last month's rent
24. DEPOSIT REFUNDS. The balance of all deposits win be refunded within three (3) weeks (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. 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
to reasonable attorney fees.
26. WAIVER. No failure of Lessor to enforce any tenn 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 althe 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 win be effective five (5)
days after mailing, or on personal delivery, or when receipt is acknowiedged in writing.
28. HOLDINC 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
$ 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. HEIRS, ASSIGNS, SUCCESSORS. This Lease is binding upon and inures to the benefit of the heirs, assigns, and successors of the parties.
31. TAX INCREASE. In the event there is any increase during any year of the tenn of this Lease in real estate taxes over and above the
amount of such taxes assessed for the tax year during which the tenn 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 fora 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 tenn, 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) ("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 adjusbnent date, and the denominator
of which Is the CPI for the second calendar month preceding the commencement of the Lease teon; provided, however, that the monthly rent will not be less than
the amount set forth in lIem 2.
33. Intentionally Left Blank.
34. AMERICANS WITH DISABILITIES 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 with a professional familiar with the requirements of the Act.
35. LESSOR'S LIABILITY. 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 of
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 all deposits will
be transferred to the grantee.
36. ESTOPPEL CERTIFICATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, acknowledge, and deliver to Lessor a statement in writing: [1] certifying that this
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 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 [21 acknowledging that there are
not, to Lessee's knowiedge, any uncured 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 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]
th;:tt 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 [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 buyer designated by Lessor such
financial statements of Lessee as may be reasonably required by such lender or buyer. All financial statements will be received by the Lessor or the lender or
buyer in confidence and will be used only for the purposes set forth.
Page 2 013
l
1/1 "b '231
Property Address
11811 Dublin Blvd. D....olin. 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 he or she has thoroughly read and approved each of the provisions contained in this
Offer, an grees to the terms and conditions specified.
Lessee
Date ;) -- /7~ lJ 0
Lessee
Date
Receipt for deposit acknowledged by
Date
ACCEPTANCE
r accepts the foregoing Offer ~!ld agrees to Lease the premises on the terms and conditions set forth above.
Lessor
Date
"2;/'7/66
Lessee acknowledges receipt of a copy of the accepted Lease on (date)
L--.J L--.J
(Initials)
Page3of3
'"
. ,
. ,
ll<is Db 2-3;
DUBLIN SQUARE LEASE
William L. Barnett
dba: ALL VIDEO REPAIR
11831 Dublin Blvd.
Dublin. CA 94566
INDEX TO LEASE
I.
Page
1
1
1
2
2
3
3
3
4
5
6
6
1. Parties
2. Premises
3. Lease Term
4. Rent
5. Security Deposit
6. Use and Prohibited Uses
7. Signs
8. Business Hours
9. Parking and Common Areas
10. Name
11. Alterations
12. Maintenance and Repairs
13. Compliance ~ith Government Regulations
Land Use Permit. etc.
14. Entry by LESSOR
15. Damage or Destruction of Premises
16. Assignment and Subletting
17. Insolvency or Bankruptcy
18. Remedies for Breach
19. Attorney's Fees
20. Surrender of Lease
21. Holding Over
22. Surrender of Premises on Expiration of Term
23. Insurance
24. Indemnification
25. Utilities
26. Taxes
27. Exclusivity and Other Tenants
28. Subordination
29. Transfer or Reversion
30. Rules and Regulations
31. Time is of the Essence
32. No Joint Venture or Partnership
33. Notices
34. Waiver of Breach
35. Captions
36. Successors and ASSigns
37. Interpretation
38. Invalidity of Particular Provision
39. Governing Law
7
8
8
10
10
10
12
13
13
13
13
15
15
15
16
16
16
17
17
17
18
18
18
18
19
19
19
~
ll<q av"?-3Q
DUBLIN SQUARE LEASE
William L. Barnett
dba: ALL VIDEO REPAIR
11831 Dublin Blvd.
Dublin. CA 94566
f~
1. PartieE{
This lease is made this 29th day of January. 1996. by and
between BERKELEY LAND CO.. INC.. herein called "LESSOR". and
William L. Barnett. herein 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 1600 net sguare feet located at
the Dublin Sguare. The street address is
Lt.831 Dublin Blvd.. Dublin. California ("the
leased premises")
3. Lease Term
A. Co~mencement.
February 1. 1996.
This lease renewal term shall commence on
B. Initial Term. The intial term shall be for a period of
five (5)years. or January 31. 2001.
C. Option. In addition to the initial term. LESSEE shall
have one (1) option to extend the lease for an additional
consecutive term of five (5) years.
D. Exercise of Ontion. 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 (180) days before
the termination of the existing lease term. If the option i6
~x~r~is~d, th~ l~~s~ sh~ll ~ontinue upon all of the same terms and
~~fidi~i~nsl ~x~~p~ z~r ~h~ rent, whidh ahall b~ aet forth below.
1'20 '1)231
4:. Rent
A.
Monthly Rent. The initial base monthly rent shall be:
1st Year $ 800.00 per month
2nd Year $ 880.00
Jllftl1 3rd Year $ 960.00
4th Year $1.040.00
5th Year $1.120.00
first month's rent payment for February. 1996. shall be
execution of this Lease. .
"
The
due upon
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 ten (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. Option Period Rent. In the event the LESSEE exercises
the option referred to in 3e. 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
result in a, rental decrease. The rental ad.iustment shall be
accomplished by the mutual written agreement of the parties. if
possible.
If the parties and their legal representatives cannot reach
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) wri tten appraisals 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 0/2) by each party.
5. Security Deposit
On the initial Lease. the LESSEE deposited with LESSOR the sum
of $800.00. On this Lease Renewal. this deposit shall remain in
effect without 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
1'2 I 0023>~
6. Use and Prohibited Uses
The leased premises shall be used solely for repair and sales
of audio arid 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 L.ESSEE
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. SiErns ,
The LESSEE has already installed an exterior outdoor sign that
matches the specifications of the other Dublin Sguaretenants.
8. Business Hours
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. 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
12~1f3"
9. Parkina' and Common Areas
A. Definitions
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 ma'y 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 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 Exhibit "B". and
the LESSOR reserves 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 eliminate or add any improvements or 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.
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 business 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 r s
employees. agents. 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 resrved to LESSOR. No parking fees shall be established
and no meters shall be used.
4
1131)234
B. Parkin2 ~~~a
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 nece.s.sary 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. with reasonable
provisions for landscaping", access and other accommodation areas.
C. Lessee's Parkin2
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 Parkin2 & Common Area Expense
During this Lease. the LESSEE shall pay its pro rata 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
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.
5
12...tt1b23{
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 tradeflxtures. 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 Mechanic's Liens
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 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
therein. 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 1193.l(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
LESSOR within 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
paid rent due in that sum.
12, Maintenance and Repairs
A. LESSEE's Direct Maintenance and Repairs
LESSEE shall at its o~n cost. keep, repair. 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
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
6
I '2 5~ L1b """2..."3<J
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 ReQ;u:tations. Land Use Permit. .etc.
LESSEE shall. at its sole cost 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 reg\.l.lations 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 bea 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
ordinance. statute. rule or regulation.
7
/2u 0(13;
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-liability for alterationt=;. additions or repairs or for the
purpose of placing upon the' leased premises any usual or ordinary
"For Sale" signs. or for t,he 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 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 (90) 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 exhibiting the
premises to any prospective tenant. Such entry shall not interfere
with normal business operations.
15. Damage or Destruction of 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 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 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 premises. or if 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
8
l'21tf{f~ar
repair or restoration. the LESSOR shall give written notice to the
LESSEE wi thin ninety (90) days after the occurrence of such
destruction or LESSOR's election either:
(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
premises which was originally constructed or added bv LESSOR and
shall not involve the repair or restoration of any fixtures or
alterations installed bv 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
(30%) of the total square footage of the improvements erected upon
the leased premises are destroyed 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. they shall each
select an arbitrator. and the two arbi trator.s 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
I 2 '6- ifb2~4
16. AS6i~nment and 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 bv any other person shall
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 be deemed an
assignment. requiring LESSOR"s prior written 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 sublettin~.
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.
.
17. Insolvencv or Bankruptcv
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
entity guaranteeing the obligations of LESSEE hereunder shall have
the same effect as if such event occurred to or action were taken
by LESSEE.
18. Remedies For Breach
In the event of any breach of this Lease. or any covenant.
condition or provision hereof by LESSEE which continues after
LESSOR has given 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
10
l2q~z.,~,
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 such property and storing the same in
a public warehouse or elsewhere at the cost of
and for the account of LESSEE.
If,
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
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 right to make
alterations and repairs to said premises.
Upon each such relet~ing. 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
alterations 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 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
percenta~e rent due from and unpaid bvLESSEE hereunder. The
11
13{)Uf)2~1
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 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'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 of
which amount shall be i~mediately due and payable from LESSEE to
LESSOR.
Any entry by LESSOR pursuant to the provisions of this Lease
shall be aJ,lowed 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 required by this Lease shall be ten (10)
days if the breach consists of the failure to pay monev. and thirty
(30) days if 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 or provisions of this Lease. including actions for unlawful
detainer or an action fo.r 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 attorney's fees.
12
1310C;UCi
20. Surrender of tease
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 existin~ subleases or
subtenancies. or may. at the option of LESSOR. operate as an
assi~nment 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. Holding Over
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.
22. Surrender of Premises on Expiration of Term
On the last day, or sooner termination of the lease term.
LESSEE shall quit and surrender the premises. broom-clean. in good
conditiion and repair (reasonable ~ear and tear and damage by acts
of God excepted). to.Q:ether with 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. Specifically. all built-in
cabinets. counters. desks and shelves shall remain and become the
property of,LESSOR.
23. Insurance
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.
13
I 32. rIb 2--17'1
LESSOR reserves the ri~ht to increase the required amount of
nublic 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. 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 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. Certificate of Insurance
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.
('
'J.
Fire Ij:lsurance
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 renlacement 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 on
LESSEE's property located on the Property.
D. Worker's Compensation
Wi th regard to any Worker's Compnsation insurance carried
bv LESSEE. the LESSEE agrees that it shall waive the right of
subrogation against the LESSOR (or its employees. assignees or
agents). and such insurance shall provide for such waiyer of
subrogation.
14
/33fJ 2~~
E. Waiver ofSuQ~ogation
With 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 em~loYees. 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. Utilities
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.
26. T~
A. Personal Property Taxes
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 ProPerty Taxes--Lessee'6 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 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
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 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
15
)~~ {,~1
LESSOR within fifteen ( 15) days after LESSOR 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.
27. Exclusi~itv and Other Tenants
LESSOR agrees that during the time this Lease is in force.
LESSOR will not lease otper 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 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
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 (10) 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 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. it being
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 Shopping Center.
29. Transfer or Reversion
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 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 given by
LESSEE to secure the faithful performance of all or any of the
covenants of this Lease on the part of LESSEE. LESSOR may transfer
16
I~S-"b-Z~
and/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 with
reference thereto.
30. Rules and Reaulations
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. Ti~e 1S of the essence
Time is of the essence of this agreement and each and everY
part thereof.
32. No Joint Venture or Partnership
Nothing herein shall be construed as. nor shall this Lease
create a joint venture or partnership by and between LESSOR and
LESSEE.
17
13~ r1b Z34
33. Notices
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
To the LESSEE:
William L. Barnett
11831 Dublin Blvd.
Dublin. CA 94568
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 ri~ht to terminate this
Lease on account of such default. nor shall anv waiver or
indUlgence granted by the LESSOR be taken as an estoppel against
the LESSOR..
35. Captions
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.
36. Successors and Assigns
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.
18
1~1<<6 2~
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. Invaliditv of ~artiGqlar Provision
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 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.
39. Governing La~
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:
BERKELEY LAND COMPANY. INC.
By:
Frank Sabatte
William L. Barnett
dba, A~.o. REPAIR f(5;. 0.
By: ~ :t:- /'
William L. Barnett '
Dated:
Dated:
2- ~ g - 7'6
Its:
President
Its:
Tenant
19
---
,r"'"' .
! ~<g'Vz~(
June 28, 2005
All Video Repair
11831 Dublin Blvd.
Dublin, Ca. 94568
Mike Mikulich
Berkeley Land
321 Hartz ave.
Danville, Ca. 94526
"
Hi Mike,
The enclosed check for $750 will pay for the month of July, for the
back warehouse we are renting from your company. I have
enclosed receipts for the improvements we have done to the
building. I am proposing this will offset the rent we have not paid
foJ;' the last three months, for the warehouse. Going forward, this
amount will cover the entire rent for the warehouse, on a month to
month basis.
Please let me know if this meets with your approval. You can
reach me on My cell phone, 925-872-4200.
Thank you,
f)j;; ~~-
--
Bill Barnett
{t 760-
suo --
.~
fM'~~' fo ~~
-? I oj
13~ Z?1
Berkeley Land Company
Attn: Mike
1211 Newell Ave
Walnut Creek, CA 94596
All Video Repair
11831 Dublin Blvd
Dublin, CA 94568
March 28, 2001
"
Dear Mike,
We will be vacating the building Apri130fu, 2001. This letter serves as our thirty (30) day
notice.
Our new location will be 7429 Amador Valley Blvd. Our opening date will be April 16lh.
We have enjoyed the US~ of the building and thank you for your cooperation.
I do have a proposal. I would like to keep renting the building until you find another
tenant or the building is tom down. I would be willing to pay a reduced rent of$500.00
per month on a month-to..month basis. We would be using the building as an extra
location until we were asked to leave. Given written notice, we could vacate the property
anytime, within fifteen (15) days. Please call me Monday, April 2nd and let me know. I
can be reached on my cell phone at (925) 872-4200.
If you decide not to accept my offer, we will vacate the property by April30fu, 2000.
SinJ:ereJy,~
Bill Barnett
Owner
BB/de
f
t '-ton 234
COMMERCIAL LEASE AND DEPOSIt'
RECEIVED FROM A BEl'"q:~ RESTORATION. INC.
The sum of$ N1A ( N/A
belong to Lessor and will be applied as follows:
hereinafter referred to as LESSEE,
dollars), evidenced by N/A . as a deposit which will
Rent for the period from to
Security deposit (not applicable toward last month's rent)
Other
TOTAl RECEIVED BALANCE DUE PRIOR TO OCCUPANCY
$ $ $
$ $ $
$ $ $
$ $ $
TOTAL
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 Califomia, described as the Dremlses located at 11845 Dublin Blvd. Dublin. CA
consisting of approximately 600 square feet, upon the following terms and conditions:
1. TERM. The tenn will commence on November 1. 2005 and end on October 31. 2008.
2. RENT. The total rent will be $24.000.00. Rent will be $ 600.00 per month from November 1, 2005 to October 31, 2006. Rent will be ~ 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 On the
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~ 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 ....L days after due date, Lessee agrees to
pay a late charge of $ ~Ius interest at --..JL% per annum on the delinquent amount Lessee further agrees to pay $ --1.lL..-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 Offk;e 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 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 will Increase the existing rate of insurance upon the property, or cause cancellation of insurance policies covering the
property. Lessee will not conduct or pennlt 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 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.
7. MAINTENANCE, REPAIRS, ALTERATIONS. 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, including plate glass, electrical wiring, plumbing and heating and air
conditioning installations, and any other system or equipment The premises will be surrendered. at tennination of the lease, in as good condition as received,
nonnal 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 their share of the taxes. 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
liens.
8. ENTRY AND INSPECTION. Lessee will penn it 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 pennlt Lessor, at any time within sixty (60) days prior to the expiration of this Lease, to place upon the premises any
usual "For Lease" signs, and pennit persons desiring to Lease the premises to inspect the premises at reasonable times.
9. INDEMNfFICATION OF LESSOR. Lessor will not 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 .hannless 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. 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 delivered. Lessee may terminate
this Lease if possession is not delivered within ...Q..... days of the commencement tenn in Item 1.
11. LESSEE'S INSURANCE. lessee. at his or her expense, will maintain plate glass, public liabUity, and property damage Insurance insuring Lessee and
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 Lessor
prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE. Lessor will maintain hazard insurance covering one hundred percent (100%) actual cash value of the Improvements throughout
the Lease tenn. Lessor's insurance will not insure Lessee's personal property, leasehold Improvements, or trade fixtures.
13. SUBROGATION. To the maximum extent pennitted by Insurance pOlicies which may be owned by the parties, Lessor and Lessee waive any and all rights
of subrogation which might otherwise exist.
14. UTILITIES. Lessee agrees that he or she will be responsible for the payment of all utilities, including water. gas, electricity. heat and other services delivered
to the premises t except *********************..***********************************************************"*****,*~****fMl**.**,**,**.***********.*****.*** .
15. SIGNS. Lessee will not place, maintain, nor pennit any sign or awning on any exterior door, wall, or window of the premises without the express written
consent of Lessor, which will not be unreasonably withheld, and of appropriate govemmental authorities.
16. ABANDONMENT OF PREMISES. Lessee will not vacate or abandon the premises at any time during the tenn of this Lease. If 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 deemed to be
abandoned, at the option of Lessor.
f{.
Page 1 of 3
f
1'-f/~'2~4
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 Lease
will. as to the part taken. tenninate as of the date the condemnor acquires possession. Lessee will be required to pay such proportion of the rent for the remaining
tenn 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 her option. tennlnate this Lease as of the date the condemnor acquires possession. In the event that the premises are condemned in whole, or the rernalnder is
not susceptible for use by the Lessee. this Lease will tenninate 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 lJITIount 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 tenn will belong to the Lessor. except trade fixtures of the Lessee. Lessee
may. upon tennlnation. 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. DESTRUCnoN OF PREMISES. In the event of a partial destruction of the premises during the tenn. from any cause except acts or omission of Lessee,
Lessor will not promptly repair the premises. Such partial destruction will tennlnate 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 ,my toxic contamination caused by Lessee's use of the premises.
21. I~SOL VENCY. The appointment of a receiver, an asslgnm~nt for the benefits of creditors. or the filing 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 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 tennination; (b) the worth at the time of award of the amount by which the unpaid rent
which would have been eamed after tennination 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 tenn 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 perfonn 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 altemative, continue this Lease in effect, as long as Lessor does not tenninate Lessee's right to possession. and Lessor may enforce all 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 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 will not be obligated to. apply all or portions of the
deposit on account of Lessee's obligations. Any balance remaining upon tenninatlon will be retumed 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 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. 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
to reasonable attorney fees.
26. WAIVER. No failure of Lessor to enforce any tenn of this Lease will be deemed to be a waiver.
2,7. 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, or to
Lessor at the address shown in Item 2, or at such other places as may be designated In wrltIngby the parties from time to time. Notice will be effective five (5)
days after mailing, or on personal delivery. or when receipt is acknOWledged In writing.
28. HOLDINC OVER. Any holding over after the expiration of this Lease. with the consent of Owner, will be a month-ta-month tenancy at a monthly .rent of
$ 900.00 . payable in advance and otherwise subject to the tenns of this Lease. as applicable, until either party will tenninate the tenancy by giving the
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. TAX. Lessee will pay to Lessor an amount equal to ~ of the taxe.s 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 tenn of the Lease, the obligation of Lessee will be prorated.
32. INTENTIONALLY LEFT BLANK.
33. AMERICANS WITH DISABILITIES 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 with a professional familiar with the requirements of the Act.
34. LESSOR'S LIABILITY. In the event of a transfer of Lessor's title or interest to the property during the tenn of this Lease. Lessee agrees that the grantee of
such titie or interest will be substituted as the Lessor under this Lease, and the original Lessor will be released of all further liability: provided, that all deposits will
be transferred to the grantee.
35. ESTOPPEL CERTIFICATE.
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, acknowledge. and deliver to Lessor a statement In writing: (1] certifying that this
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 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 that there are
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 conclusively
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 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 (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 buyer designated by Lessor such
financial statements of Lessee as may be reasonably required by such lender or buyer. All financial statements will be received by the Lessor or the lender or
buyer in confidence and will be used only for the purposes set forth.
~.
Page 2 of3
I
ILl2~ 1,.31
I
Property Address
11845 Dublin Blvd. Dublin. CA
36. 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 he or she has thoroughly read and approved each of the provisions contained in this
Offer, and agrees to the rms and conditions specified.
Date I/-- 2-2 -0 ~ Lessee
,
Date
Lessee
Receipt for deposit acknowledged by
Date
"
ACCEPTANCE
The undel'slgned LesSOI' accepts the foregoing Offel' and agrees to l.ease the premises on the terms and conditions set fol1:h above.
. Lessor ~~
I
Date
J,k,Jr
Lessee acknowledges receipt of a copy of the accepted Lease on (date)
L--J L--J
(initials)
Page 3 of3
~
1>
~
/Y-"3'b 2~
NCR (No C~rboo Required)
COMMERCIAL LEASE AND DEPOSIT RECEIPT
RECEIVED FROM ULTIMATE HOME SOLUTIONS
the sum of $ 1,209.59 (One thousand two
evidenced by r.hpl"'k
, " , , hereinafter r~ferred to as LESSEE,
hundred' nine and 59/100 **************~******* 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 $ $ 1,039.73
Rentfortheperiodfrom 6/10/02 to 7/1/02
Security deposit (not applicable toward last month's rent)
Other .....................................................
TOTAL.... ......... .'... .., '" ........ .......... .... .......
In the event this ~ease is not accepted by the Lessor within 5 days4, the total deposit received will be refunded.
L?ssee offers to lease from Lessor the premises situated in the City of lJublin. , County of Alameda ,
Stateof r.Rl;fnrniR,desrribltdas TJ,qrphnllSl> RpRl"'P hphinrt TnJ1r-.if'Y r.hllrl"'h - n"hl;n Sl10pping Ct>nter*fc
consisting of approximately ,4::>6 square feet, upon the following terms and conditions:
1. TERM. The term will commence pn ,June 17th~ 2002 and.GAd..QA Continue Month-to-~onth ,_.
2. RENT. The total rent will be $ ,Nj A, , ,payable ~t~. 00 , , , per month (based on first year's rates) payable on the
Firs t day of each month. All rents will be paid to Lessor or his or her authoriled agent, at the following address
1211 Newell Avenue. Suite 116 Walnut Creek, CA 94596 "
or at such other places as may be designated b.y.OLe.{l~or from.time to time. In the event rent is not paid w~thin , 5 days after du~
date, Lessee agrees to QaV. a late charge of $ 5 . UU plus Interest at ' 8 % per annum on the delinquent amount. Lessee fur"
ther agrees to pay $ ,2::>.00 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 premisesaretobe used for the operation of Storage of Furn~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.
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 will 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. ASSIONMENT AND SUBLETTINO. Lessee will not assign this Lease or sublet any portion of the premises without prior written con-
sent 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 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 co urt 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 repair. Lessee will, at his or her own expense, maintain the premises in a good and safe condition, including plate glass, electri-
cal wiring, plumbing and heating and air conditioning installations, and any other system or equipment. The premises will be sur.
rendered, 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 foilowing which will be maintained by Lessor: roof, exterior walls, structural foundations (includ-
ing any retrofittinM~uired by governmental authorities) and: , . ' , .
Lessee c=J will, . 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 com-
mencement of any substantial repair, improvement, or alteration, Lessee will give Lessor at least two (21 days written notice in order
that Lessor may post appropriate notices to avoid any liabiliW- for liens. '
8. ENTRY AND INSPECTION. Lessee will permit Lessor or Lessor's agents to enter the premises at reasonable times and upon reason-
able notice for the purpose of inspecting the premises, and will permit Lessor, at any time within sixty (50) days prior to the expira,-
tion of this Lease. t!> place upon the premises any usual "For Lease" signs, and permit 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 proper.
ty, occurring on the 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. .
'fO~ POSSESSION. If Lessor is unable to deliver possession of the premises at the commencement date set forth above, Lessor will not be
liabl~ fo: any .damage caused by the d.elay, n~r will thi.s Lease b~ vo!d or voi~able, bu! L:sse1<fill not be liable for any rent until pos-
session IS delivered. Lessee may term mate thiS Lease If possessIOn IS not delivered wlthm days ofthe commencement term
in Item 1.
11. LESSEE'SINSURA.NCE. Lessee, at his or her expense, will maintain pl'ilte gjass, ~l.I.blic liRbilityh9-Rd property damage insurance insur-
ing Lessee and Lessor with minimum coverage as follows: One m~:LI~on l ~ I, DuO , UVU) , , .
Lessee will provide Lessor with a Certificate of Insurance showing Lessor as additional insured. The policy will require ten (10)
day's written noti ce to Lessor prior to cancellation or material change of coverage. ,
12, LESSOR'S INSURANCE., lessor wil.l maintain h,azard insurance covering one hundred pert;:ent (100%) actual cash value of the
improyements throughout the Lease term. Lessor's insurance will not insure Lessee's personal property, leasehold improvements,
or trade fixtures.
** See Attached Exhibit "A" of Premises.
CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means including
scanning or computerized formats. '
Page 1 of3
FORM 107.1 (7 -97) COPYRIGHT ~ 1993-97 av PROFESSIONAL PUBLIsHiNG, 880 LAS 6AlUNAS AVE.. SAN RAFAEL CA 91$13 (41514n-1964 FAX (4151 472-206!l
ItllI PROFESSIONAl.
mpUBLISHING
..
"
I t.f4~"2 ~1
NCR (No Carbon Required)
Property Address
13. SUBROCATION. To the maximum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee
waive any and all rights of subrogation which might otherwise exist. "
14. UTILITIES. Lessee agrees that he or she will be responsible for the payment of all utilities, including water, gas, electricity, heat /;Ind
other services delivered to the premises, except: Nl A . .... . . . .
15. 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 written co:nsent of Lessor, which will not be unreasonably withheld, and of appropriate governmel'ltal authorities.
16. ABANDONMENT OF PREMISES. Lessee will not vacate or abandon the premises at any time during the term oi 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.emed 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 which is susceptible of occupation by
Lessee, this Lease will, as to the.parttaken, 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 the value of the premises remaining bears to the tota I value of the premis-
es at the date of condemnation; prpvided, 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, or the remainder is not susceptible for use
by the Lessee, this Lease ~i11 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 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, 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. DESTRUCTIO" OF PREMISES. In the evel:\b<fa partial destruction of the premises during thl:! term, from any cause except acts or
omission of Lessee, Lessor will~, repair the premises..~~~ffj8)
~~~kPu:mt~~~~~W<<ltts: . It:
~~~aGeJdX!fJE~:mw.lQic:mtbmc~.Y>f~ps:a4~~lUltIli~~
JQlI\XImJl~~U~~~~~~~
~tt~~:QitIIfi~~PJtliJ{IO"R'~" .
20. HAZARDOUS MATERIALS. Lessee will not us'e; 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 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 premises. .
21. INSOLVENCY. The appointment of a receiver, an assignment for the benefits of creditors, or the filil1g 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 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 awar.d ofthe 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 i'lmount of such rental
loss that the Lesseeproves could be reasonably avoided; and (d) any other amount necessary 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 result therefrom.
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor does not terminate Less~e's right to possession, and
Lessor may enforce all of Lessor's ~ights 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 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 will not be obligated to,
apply all or portions of the deposit on account of Lessee's obligations. Any balanc~ 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 (31 weeks (or as otherwise required by lawl, 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. ATTORNEY FEES. In any action or proceeding involving a dispute between Lessor and Lessee arising out of this Lease, the prevail-
ing party will be entitled to reasonable attorney fees.
26. 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, 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 will be effective five (5) days after mailing, or on personal delivery, or when receipt is acknowledged in writing.
28. HOLDING OVER. An7~Q)d~8 over after the expiration of this Lease, with the consent of Owner, will be a month-to-month tenancy at
a monthly rent of $ . :8. , payable in advance and otherwise subject to the terms of this Lease, as applicablEl", until either party
will terminate the tenancy by giving the other party thirty (30) days written notice.
29. TIME. lime is of the essence of th is Lease.
30. HEIRS, ASSIGNS, SUCCESSORS.
31. TAX INCREASE.
.~
~~
~
CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form bV any, means including
scanning or computerized formats, .
Page20f3
FORM' 01.2 (7-97) COPYRIGHT jf;) 1993--97 BY PROFESSIONAL PUBLISHING. B80LAS GALlINAS AVE,. SAN RAFAEl, eA 94903 (41514n.l964 FAXI415l472'2069
IDiI PROFESSIONAL
m PURL.SHINe
~
( t5iJb Z ~ C)
NCR (No Carhon Required)
Property Apdress
32. COST OF LIVING INCREASE. The rent provided for in Item 2 will be adjusted effective upon the first day ofthe month immediately fol-
lowing the expiration of12 months from date of commencement of the term, and upon the expiration of each 12 months thereafter,
iri accordance with changes in the U.S. 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 denominator of which is the Cpl for .the second cal-
endar month preceding the coml)1encement of the Lease term; provided, however, that the monthly rent will not be less than the
amount set forth in Item 2. '
55.
~~M~~lRmU{~XXXXX~N~~~~
. . ~.
34. AMERICANS WITH DISABILITIES ACT. '''he parties are alerted to the existence of the Americans With Disabilities Act, which may
require costly structural modifications. The parties are advised to consult with a professional familiar with the requirements of the
Act. .
35. LESSOR'S LIABILITY. 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 of such title or interest will be susb~tituted as the Lessor under this Lease, and the original Lessor will be released of
all further liability; provided, that all deposits will be transferred to the grantee.
36. ESTOPPEL CERTIFICATE. . .
(a) On ten (10) days' prior written notice from Lessor, Lessee will execute, ac~nowledge, and deliver to Lessor a statement in writ-
in'g: [1] certifying that this 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 moqified, 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 th(!t there are 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 conclusively 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 thi:;; Lease or will be
conclusive upon Lessee: [1] that 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 pertormance; 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 buyer
designated by Lessor such financial statements of Lessee as may be reasonably required by such lender or bUYer. All financial state-
ments will be received by the Lessor or the lender or buyer in confidence and will be used only for the purposes set forth.
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 exhibits are a part of this Lease:
Exhibit A: I.ea~~d Premises
Exhibit B: .
Exhibit C:
The undersigned Lessee acknowledges that he or she has thoroughly read and approved each of the provisions contained in this Offer,
and ,agrf!es to e s and conditions specified. .
. Date ~t,fiz
Lessee
~
Date 02.-/0<""--
,
Date
L
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and ,,:gre~to lease the premises on the terms a~d conditions set forth above.
TICE: The ~mollnt or rate of real e ate commissions is not fixed by law. They are s
ally and may between broker.
Date
Lessee acknowledges receipt of a copy ofthe accepted Lease on (date)
[-f [_I
linitialsl
CAUTION: The copyright !;<jwsof the United States forbid the unauthori~ed reproduction of this form by any means including
scanning or computerized! formats. .
Page 3 of 3
FORM 107.3 (7.97) C{)PYRIGHH:n993-97 BY PROFESSIONAL PUBLISHING, 880 LAS GAlUNAS AV~. SAN RAfAEL. CA 94903 (4151472,1964 FAX [415) 472.20&9
jRev. by
Date
I
mPROFE5510NAL'
mpUBLI5HING
0
63
...... r
~ Vl Z i
W f
q .......
0\ ! /
U) r.n .
~ /:)
!
~ f ,
j !
! /
~
'J' '~
-
"
EXHIBIT' A II
f,
98"-0'
1 L}u, ~ Z31'
"
I '-! I Q{) 23(
,
FIRST AMENDMENT TO
COMMERCIAL LEASE AND DEPOSIT RECEIPT
Parties
This First Amendment to Commercial Lease and Deposit Receipt is entered into between
ANDREW HUNTER, doing business as ULTIMATE HOME SOLUTIONS ('Lessee") and
BERKELEY LAND CO., INC., a California 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 feet of storage space (the
"Current Space") (a description of which is set forth on Exhibit A, attached hereto) located
behind the Journey Church in the Dublin Shopping Center owned by Lessor, a copy of which
Lease is attached hereto as Exhibit B (the "Lease').
B. Under the 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 Current Space and occupy instead an adjoining
storage space consisting of 5,042 square feet (the "New Space") (a description of which is set
forth on Exhibit C, attached hereto) on all the same terms and conditions set forth in the Lease,
with the exception ofrent, as set forth below.
Agreement
Therefore, it is AGREED AS FOLLOWS:
1. Recitals Are True: The recitals set forth above are true and correct.
2. Current Space to be Vacated: On or before September 15, 2002, Lessee shall
vacate the Current Space, which Current Space shall be left in a broom-clean condition.
3. Occupation of New Space: Commencing on September 15, 2002, Lessee shall
occupy and be the tenant ofthe New Space.
1
ILf~ ~~3~
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
$2,521.00, set forth above.
5. All Other Terms Lease Unchanged: All other terms and conditions of the Lease
remain unchanged and in effect.
BERKELEY LAND CO., INC.,
a California corporation
Dated:
{J cl .s
,
,2002
By:
Its:
VW\~~
Dated: /0 - :J
,2002
By: ~/~
ANDREW · ER, individually
and doing business as
ULTIMATE HOME SOLUTIONS
2
NCA (No C"arb.on Required!
(' ~;15/;- k' (--
COMMERCIAL LEASE AND DEPOSIT RECEIPT
t Lt~ 00 2.3 ~
. ,
I
, .
RECEIVED FROM ULTIMATE HOME SOLUTIONS
thesumof$ 1,209.59 (One thousand two
evidenced by r.hpl'k
. , . , hereinafter referred to as LESSEE,
hundred' nine and 59/100 ******"**************** dollars),
, as a deposit which will belong to Lessor and will beappHed as follows:
, .
TOTAL RECEIVEOSALANCE DUE PRIOR TO OCCUPANCY
Rent for the period from 6/10/02 to 7/1/02 $ 339.73 $ $ 339.73
$ 700.00 $ ----- $ 700.,00
Security deposit (not applicable toward last month's rent)
Other ................................................................ $ .~"":"_~____ $ $ ________
TOTAL ............,....................................... $ 1,039.73 $, $ 1,039.73
In the event this ~ease is not accepted by the Lessor 1(Irithin 5 , davs~ the tqtal deposit received Will be refunded.
L~ssee offers to lease from Lessor the premises situated in the City Of uub l1n ., County of Alameda ,
Stateof r.Alif'nTniA,desfribedas WflTphnl1"'p "p::ll'P 'hphinrl Tnl1r""'y r.h,.r...h - nl1'hlin SpQpping C~nt~:r::*f'
consisting of approximately .456 square feet, upon the following terms and conditions:
1. TERM. The term will commen~e pn June 17th', 2002 aad.QAd../m Continue Month-to-Month ,_
2. RpNT. The total rent will be $ Nt A ,paY-able at $ 72.8. 0 . per month (based on first year's rates) payable on the
Fl.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. Suite 116 Wa1nuf" Creek, CA. 94596 .. . '... ,
or at such other places as may be designated b.~oLedBor from .time to time. Inathe event rent is not paid w~hin 5 days after due
date, Lessee agrees to Q,ay:a late charge of $ 5. plus Interest at ' % per annum on the delinquent amount. Lessee fur~
tfier agrees to pay $ ,2.5.00 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 Storage of Furn1 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., ,
4. USES PROHIBITED. I.,essee 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 willinc;rease 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 written con-
sent of the Lessor, wh.ich 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 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 co urt abatement proceeding affecting the use of the premises will, at the option of the Lessor, be deemed a breach of
th~~~a , .
7. MAINTENANCE. REPAIRS, ALTERATIONS. 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, including plate glass, electri-
cal wiring, plumbing and heating and air conditioning installations, and any other system or equipment. The premises will be sur-
rendered, 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' foilowing which will be maintained by Lessor: roof, exterior walls, structural foundations (includ-
ing any retrofittinM{uired by governmental authorities) and: ,
Lessee c=J will, 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 com-
mencement 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 Iiabili!y for liens. ' ,
8. ENTRY AND INSPECTION. Lessee will permit Lessor or Lessor's agents to enter the premises at reasonable times and upon reason-
able notice for tl:1e purpose of inspecting the premises, and will permit Lessor, at any time within sixty (601 days prior to the expira~
tion of this Lease, t? place upon the premises any usual "For Lease"signs, and permit 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 orinjury to Lessee, or any other person, orto any proper-
ty, occurring on the premises. Lessee agrees to hold Lessor harmless from any claims for damages arising out of Lessee's use of the
premises, and to i nd,emnity Lessor for any expense ,incurred by Lessor in defending any such claims.
1b~ POSSESSION. If Lessor is unable to deliver possession of the premises at the commencement date set forth above, Lessor wi II not be
liable for any damage caused by the delay, nor will this Lease be void or voidable, but Lesse1cfill not be liable for any rent until pos-
session is delivered. Lessee may terminate this Lease if possession is not delivered within days of the commencementterm
in Item 1.
11. LESSEE'S INSURANCE. Lessee, at his or her expense, will maintain plate gJass, Rl.I.bJic liSlbililllOmd property damage insurance insur-
ing Lessee and Lessor with minimum coverag,e as follows: One milIl.on ( q> 1. DuO, UI IV) .
Lessee will provide Lessor with a Certificate of Insurance showing Lessor as additional insured. The policy will require ten (10)
day's written noti ce to Lessor prior to cancellation or material change of coverage.
12. LESSOR'S INSURANCE. Lessor wiU maintain h,azard insurance covering one hundred percent (100%) actual cash value of the
improyements throughout the Lease term. Lessor's insurance will not insure Lessee's personal property, leasehold improvements,
or trade fixtures. '
** See Attached Exhibit "A" of Premises.
CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means including
scanning or computerized formats. '
Page 1 of 3
FORM 107.1 !7 -97) COPYRIGHT@ 1993-91BV PROFESSIONAL PUBLISHING. 880 LAS GAlllNAS AVE.. SAN RAFAB.. CA 9ol91l3 1415) 472.1964 FAX 14151472-2069
mp~OFESSIOl\lAL
m PUBLlSHINC,
(,
NCA (No Carbon Requfred) Property Address
13. SUBROOATION. To the maximum extent permitted by insurance policies which may be owned by the parties, Lessor and Lessee
waive any and all rights of subrogation which might otherwise exist. " ,
14. UTIUTlES. Lessee agrees that he or she will be responsible for the payment of aU utilities, including water, gas, electricity, heat and
other services delivered to the premises, except: NI A
15. SIGNS. Lessee will ,not 'place, maintain, nor permit any signor awning on any exterior door, wall, or window of "the premises without
the express written cQnsent of Lessor, which will not be unreasonably withheld, and of appropriate governmental authorities.
16. ABANDONMENT OF PREMISES. Lessee will not vacate or abandon the premises at any time during the term 01 thls,Lease. If Lessee
does abandon or vacate the premises, or is dispossessed by process of law, ot otherwise, any personal property belonging to Lessee
left on the premises will be de,emed 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 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 asthe value of the premises remaining bears to the tota I value of the premis-
es at the date of condemnation; provided, however, that either party may, at his or her option, terminate this Lease as ohhe date the
condemnor acquires possession. In the event that the premises are condem ned 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 L~ssor; 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, remo(;e 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. DESTRUCTIOJ\! OF PREMISES. In the eveab'l! a partial destruction of the premIses during the term, from any cause except acts or
omission of Lessee, Lessor will ~ repair the premises..~~~D1I~)
~~~~~~M1t fC
~~Jb:e~xqDll!I!t~wmd\l:l!:~!'lC!fIlrillmpraUflltlllm~~~
XQQ:l!:bmqneml~lt~~~ . . ~~
~~~~~~~, ,
20. HAZARDOUS MATERIALS. Lessee will not us'e, store, or dispose of any ha~ardous 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 substanc;es 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 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. ,
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;.lb) 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 a mount of such rental
loss that the Lessee proves could be reasonably avoided; and (d) any other amount necessary to com"pensate 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 ordinai)f 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 Lessfile's right to possession, and
Lessor may enforce all of Lessor's (ights 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 terminate the Le<ase.
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 will not be obligated to,
apply all or portions of the deposit on account of Lessee's obligations. Any bafancfil 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 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. ATTORNEY FEES. In any action or proceeding involving a dispute between Lessor and Lessee arising out of this Lease, the prevail-
ing party will be entitled to reasonable attorney rees.
26. WAIVER. No failure of Lessor to enforce any term of this Lease will be deemed to be a waiver.
27. NOTICES. Any notice which ei\her party mayor is required to give, will be given by mailing the notice, postage prepaid, to Lessee at
the 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 will be effective five (51 days after mailing, or on personal delivery, or when receipt is acknowledged in writing.
28. HOLDING OVER. An'LhQ,ldiJ:1Q over after the expiration of this Lease, with the consent of Owner, will be a month-to-month tenancy at
a monthly rent of S/2~. UO , payable in advance and otherwise subject to the terms of this Lease, as applicabl~, until either party
will terminate the tenancy by giving the other party thirty (301 days written notice.
29. TIME. Time is of the essence of this Lease.
30. HEIRS, ASSIGNS, SUCCESSORS.
31. TAX INCREASE.
(
J 5D UO~3 Pf
~
~
~D~~
CAUTION: The copyrighllaws of the United States forbid the unauthorized reproduction of this fonn by any, means including
scanning or computerized formats.
Page 2 of 3
FORM J 01.2 (7-97) COPYRIGHT@1993-97BYPROFEsSIONALPUBLlSHING,aiI0LAS GALLINAS AVE., SAN RAFAEl., CA 94!Hl3 (415147,2-1964 FAX 1415) 472-2069
IDlI PROFESSIONAL
1m! PUBLISHING
NCR (No Carbon Required)
(
(
15iu:tJ 2,"31
','
Property Address
32. COST OF LIVING 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,
in accordance with changes in the U.S. 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 denominator of which is the CPI for the second cal-
endar month preceding the comr:nencement of the Lease term; provided, however, that the monthly rent will not be less than the
amount set forth in Item 2. .
.o.
~~IIlMtlW>~lIi~XXXXXXll~~
~iX:~!<tl;x,ll'ilf.ti"1(1n>tK.Uiln'~~~.
34. AMERICANS WITH DISABILITIES ACT. The parties are aJerted to the existence of the Americans With Disabi lities Act, which may
require costly structural modifications. The parties are advised to consult with a, professional familiar with the requirements of the
A~ '
55. LESSOR'S LIABILITY. 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 of such title or interest will be susb~tuted as the Lessor under this Lease, and the original Lessor will be released of
all further liability; provided, that all deposits will be transferred to the grantee.
56. ESTOPPEL CEmFICATE. " ,
(a) On ten (10) days'prior written notice from Lessor, Lessee will execute, acknowledge, and deliver to lessor a statement in writ-
in'g: [1] certifying that this 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 moc!ified, is in full fOrce and effect), the amount ohny security deposit, and the c1ateto which the rent
and other charges are paid in advance, if any~ and [2] acknowledging thClt there are not, to Lessee's knowledge, any uncured defaults
on the pa rt 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 option, Lessee's failure to deliver such stCltement within such time will be a material breach of this Lease or will be
conclusive upon Lessee: [1] that 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 pertorrnance; 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 buyer
designated by Lessor such financial statements of Lessee as may be reasonably required by such lender or buyer. All financial state-
ments will be received by the Lessor orthe lender or buyer in confidence and will be used only for the purposes setforth.
37. ENTIRE AOREEMENT. The foregoing constitutes the entire agreement between the parties .and may be modified only in writing
signed by all parties. The following exhibits are a part ofthis Lease:
. Exhibit A: Leal'led Premises
Exhibit B: '
Exhibit C:
,The undersigned Lessee acknowledges that he or she has thoroughly read and approved each of the provisions contained in this Offer,
aodag",es'.. ..nd,.n;m."",p~=:d.00z L~.... ~ D,t. 4/'z;,,----
Date
l
ACCEPTANCE
The undersigned Lessor accepts the foregoing Offer and a_gre~~to lease the premises on the terms and conditions set forth above.
Date
Lessee acknowledges receipt of a copy ofthe accepted Lease on (date)
[-][-]
(initials)
CAUTION: The copyright laws of the United' States forbid the unauthorized reproduction of this form by any means including
scanning or computerizell formats. '
Page 3 of 3
FORM 107.3 (7-97) C()PYRIGHT@l!i93-97BYPROFESSIONAlPUBlISHING.880LAS GALlINAS AVe. SAN RAFAEl. CA 94903 (415l47Z.1964 FAXt415141~2069
j'Rev. by
Date
IDlIPROFESSICNAL.
[QIPUBLISHING
I
. ,
("---
(
t 52"b ~~4
II
EXHIBIT. A "
0
53
I-' t'-I
~ .VI Z
W
I-'
0\
VIm
;r1,o
~ 9
'"
'.(1'
,~
" EXHIBIT'6"
r; rfr;;- ;(JMfrJP/l4I'NI -/0
~-Pm e..
I '.(1" IS'.
;;" I
u
~
r
fZ
~r.n
~,O
~
24'.10"
) !
"".()"
15~1J23-(
/"
I 54-un 23&]
:'-1 " :' '1
BERKELEY LAND COMPANY, INC.
September 13,2005
Manzullo & Associates
5739 Opus Dr.
Carmel, IN 46033
Re: FinishmasterIDublin SquareIDublin Ca
.,
Dear Ms. Manzullo:
This is to inform 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 NNN for the year 2006 and $5,000/month NNN for 2007.
If your client is in agreement please have them sign and date this letter in the space
provided and return to me.
~
MIchael S. Mikulich
Vice President Real Estate
B~7~
Title: CFo
Date tofU-for
321 Hartz Ave., Suite 200 . Danville, California. 94526. Phone (925) 552-5450 · Fax (925) 552-9987
IS 5 'tZ?1
.ie1.
BERKELEY LAND COMPANY, INC.
August 20, 2004
Manzullo & Associates
5739 Opus Dr.
Carmel, IN 46033
Re: FinishmasterlDublinSquare .c,
Dear MsManzullo:
This is to inform you that we are willing to extend the current lease with Finishmaster
under the same terms and conditions through December 31, 2005. The rent for said
extension shall remain the same at $4,700/month plus triple net expenses.
If your client is in agreement please have them sign and date this letter and return to me.
Thank you for your assistance in this matter.
SYMYk.AL.
Michael S. Mikulich
Vice President Real Estate
~~
Date <lit 3/0 f
Title:
Cf=C>
321 Hartz Ave., Suite 200. Danville, California. 94526.. Phone (925) 552-5450. Fax (925) 552-9987
\
1,:;>~-1J 2~1
ASSIGNMENT OF LE~E
Parties
This Assignment of Lease is made this ~I day of May,
1992, among MATLEY'S, INC., a california corporation
("Assignor"), THOMPSON CAPITAL CORPORATION, a California
corporation, ("Assignee"), and BERKELEY LAND COMPANY, a
California corporation ("Lessor").
Puroose
This Agreement is made with reference to the following
facts:
"
A. Assignor is the lessee of the property known as 11819
Dublin Boulevard, Dublin, California, consisting of approximately
2,600 net square feet, pursuant to a written lease for a term of
five years commencing April 1, 1990, and expiring March 31, 1995
(lithe Lease").
B. Assignor wishes to assign the Lease to Assignee.
C. Lessor is willing to consent to such assignment,
provided Assignee pays to Lessor the reasonable attorney's fees
incurred in the preparation of this document.
Acrreemont
Therefore, it is AGREED AS FOLLOWS:
1. Assianment of Lease:
Effective June 1, 1992, Assignor assigns to Assignee
all of its right, title and interest in the LeaSe.
2. Ass~Dtion of Lease:
Assignee expressly assumes all of the obligations of
Assignee under the Lease effective June 1, 1992, and agrees to
perform all Obligations of Lessee under the Lease, specifically
including the payment of rent, commencing June 1, 1992.
3. Inde~ification of Assianor:
Assignee agrees to indemnify Assignor from all
obligations under the Lease accruinq on or after June 1, 1992, in
accordance with section 9.3 of that certain Asset Purchase
Agreement between Assignor and Assignee dated as of April 2,
1992.
4. Non-Release of Assianor:
Assignor shall remain liable to Lessor for the
performance of all Lessee's Obligations under the Lease unless
and until the Lease is canceled and replaced by a new lease
279L5381
1
/61yO 2~1
.'
between Lessor and Assignee. In the event that Assignee
exercises the option provided for in section 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 deposit in the amount of Nineteen Hundred Fifty Dollars
($1,950), which shall remain on deposit for the benefit of
Assignee. Simultaneously with the execution of this Agreement of
Lease, Assignee shall pay to Lessor the sum of Two Hundred
Dollars ($200) for attorney's fees incurred by Lessor in the
preparation of this Agreement.
.,
6 . Consent to Assianment:
Lessor consents to the assignment on all the terms set
forth herein. This consent is not a consent to any subsequent
assignment of the Lease.
7. Attornev's Fees:
In the event litigation is ever commenced to enforce
any of the terms of this Agreement, the prevailing party shall be
entitled to recover from the non-prevailinq party a reasonable
attorney's fee, plus all costs of suit.
8. Successors:
This Assignment of Lease shall be bindinq upon the
heirs, successors, executors and assigns of all the parties
hereto.
ASSIGNOR:
HATLEY'S, INC.,
a California corporation
Dated: .~ - S - 9.::L:..
Dated: ~ ('5 /1.7-
THOMPSON CAPITAL CORPORATION,
a California corporation
~~~:~1tG--
ASSIGNEE:
LESSOR:
v
Dated: ~/O./ -2/, /99..L
By:
Its:
BERKELEY LAND COMPANY,
a California corporation
J:91)~~
~1
27915381
2
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
II.
12.
13.
14.
15.
16.
17.
18.
19.
20.
2l.
22.
23.
24.
25.
26.
27.
28.
29.
30.
3l.
32.
33.
34.
35.
36.
37.
38.
39.
THE DUBLIN SQUARE LEASE
William A. Biggs
MATLEY'S, INC.
11819 Dublin Blvd.
Dublin, CA 94566
1'531J 231
RECEiVED FEel 26m
INDEX TO LEASE
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
Entry by LESSOR
Damage or Destruction of Premises
Assigment 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
Taxes
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
Exhibit "A" Location of Building in Shopping Center
.r.,
Page
1
1
1
2
3
3
3
4
4
6
6
7
8
8
9
10
11
II
l3
13
13
13
13
15
15
15
16
l6
l7
l7
17
18
18
l8
18
18
19
19
19
150C Db 2~~
THE DUBLIN SQUARE LEASE
William A. Biggs
MATLEY'S; INC.
11819 Dublin Blvd.
Dublin, CA 94566
1. Parties
This lease is made this / fS-/ day of #/l~ I L, 1990, by .
and between BERKELEY LAND COMPANY, INC., herein called "LESSOR",
and William A. Biggs, herein called "LESSEE".
2. Premises
S;~
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 2600 net square feet located at
the Dublin Square Shopping Center. The street
address is 11819 Dublin Blvd., Dublin, CA 94566.
3. Lease Term
A. Commencement.
1, 19"90.
This lease term shall commence on April
B. Initial Term. The initial term shall be for a period
of five (5) years, commencing on the commencement date described
above.
C. Option. In addition to the initial term, LESSEE shall
have one (1) option to extend the lease for an additional consecu-
tive term of five (5) years.
D. Exercise of Option. 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 (180) days
before the termination of the existing lease term. If the option
is exercised, the lease shall continue upon all of the same terms
and conditions, except for the rent, which shall be as set forth
below.
1
l tfD Orb 1, '] #f
4.
Rent
A. Monthly Rent. The initial base monthly rental during
this lease shall be Nineteen Hundred and Fifty Dollars ($1,950.00).
The first month1s 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 hefore the first (lst) day of each
month, in advance, u.nd 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 (10) i'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 Dollars ($1,950.00), 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 by the
United States Department of Labor --lithe 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 CPI increase shall not exceed seven percent (7%) per
annum, or a maximum increase of twenty one percent (2l%) [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 additional five (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 legal representatives cannot reach
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 appraisals
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. .
2
l(()l ~
F. CPI Increase During Option Period. . 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 40, above.
c: /feCI<. W: / IF :to ~ b~'1/!/J~ ~'11' '? <;;1
~ec .b. #"1 f 5"0
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), 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.
5.
Security Deposit
-.
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 whioh 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 ot 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, cQmply 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 enjoy-
ment of owners or tenants of adjoining parcels of real property.
7. Signs
During the second quarter of 1990, a new exterior sign shall
be installed at the LESSOR'S expense. The "LESSEE and City of Dublin
shall approve same before construction of the sign.
3
1(0'2 ~Zhi
8. Business Hours
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,
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. Parking and CommonhAreas
A. Definitions
The term "Shopping Center" means the entire area within the
outer property limit shown on the plot plan attached hereto and
marked Exhibit "B" 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 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 ~nd 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 Exhibit "B"', and the LESSOR reserves
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 eliminate or add any improvements or
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. 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.
4
IlLJ=3 'JfJ 2~1
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 and facilities shall be subject to such reasonable
regulations and changes as LESSOR sha~l make from time to time.
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 areas, and road, subject to any
rights, pOWers and privileges reserved to LESSOR. No parking
fees shall be established and no meters shall be used.
B.
Parkinq Area
.,
within the limits of the Shopping Center, LESSOR shall have
hard surfaced, marked, properly drained, adequately lighted and
landscaped parking area or areas, 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,
with reasonable provisions for landscaping, 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 to 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 ares,. nor shall LESSEE at any
time park or permi t the parking of its trucks or the trucks of
its suppliers or others, 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
In addition to the fixed rent, and without deduction
therefor from the rent, LESSEE shall, during the term of this
lease, pay its share of the parking area maintenance costs and
accommodation area maintenance costs in the proportion that the
rentable floor area of the leased 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
such sum in advance on the first day of each calendar month
5
l(t)4 0() 1..31
during the term of this lease on account of its share of the
parking maintenance costs for each calendar year, or portion
thereof during the term of this Lease. "Parking area maintenance
cost" shall include all costs and expenses of operating and
maintaining the parking and common areas, in such manner as
LBSSOR 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~ng
and maintaining drainage, landscaping, and directional and other
signs with respect to the use of such areas. LESSEE's initial
common area maintenance charge shall be Sixty Dollars
($60.00) per month, which shall not increase fo~ at least three
Years. n
10 ~ 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 building. The provisions of this paragraph shall apply to
any person, firm or corporation which controls or is controlled
by LESSEE.
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.,
$2,000.00, 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 apart 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 Mechanic's Liens
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 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
therein. 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
6
l<.o? 1JL. ~1
discretion may require to 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
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 LESSOR within 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 paid rent due in that sum.
12. Maintenance and Repairs
A. LESSEE's Direct Maintenance and Repairs
LESSEE shall at its own cost, keep, repair, 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 conditioning (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 order, condition and repair~
LESSEE hereby waives all right to make repairs o~any ~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 event LESSEE shall fail to keep said premises in
good sanitary order I condi tion 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.
B. LESSEE's Reimbursement of 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.
LESSEE shall reimburse LESSOR for such repair expenses of
LESSOR on the same prorata basis as described in the paragraph
entitled "Parking and Common Areas", above. LESSOR shall also
repair and maintain the exterior painting, plumbing and
electrical systems in the cornman areas and building exterior. As
to these last mentioned items, LESSEE shall reimburse LESSOR on
the next billing period following the receipt of a billing
therefor for LESSEE's prorata share.
7
10lo~ 2-;1
13. Compliance with Government ReQu1ations. Land Use Permit. ete
LESSEE shall, at its sole cost and expense, comply will all
of the municipal, county, state, federal, and other governmental
or quasi-governmental authorities now in force, or which may
hereafter be in force, pertaining to' the leased premises, 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 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 ordinance, statute, rule or regulation.
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
additions 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-liability for alterations, 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 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 (90) days prior to the
expiration of the term, to place upon said premises any usual or
ordinary liTo Let" or "To Lease" signs and to permit the 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.
8
l(ol tJ()131
15. Damaqe or Destruction of 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 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 resul tof said
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 fuade, such proportionate reduction to be
based upon the extent to which the making of such repairs shall
interfere with the business carried OIl 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 form a cause 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 wi thin ninety (9 0) days after the occurrence of
such destruction or LESSOR's election either:
(l) To repair the premises, using any available insurance
proceeds and supplying additional funds; or,
{2} To. terminate this Lease, rece~vlng 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 by LESSOR and
shall not involve the repair or restoration of any. 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 (30%) of the total square footage of the improvements
erected upon the leased premises are destroyed unless LESSEE and
LESSOR agree otherwise in writing.
9
Uo8U0234
D. In repairing or restoring the leased
shall not be liable for any delays reSUlting
other labor disputes, acts of the elements
outside LESSOR's control.
premises, LESSOR
from strikes, or
or other causes
E. LESSOR agrees that LESSOR will obtain, pay the premiums
on and maintain, in force 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, they 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.
16. Assianment and 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, guests, 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, 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 in LESSEE. in excess of
twenty-five percent (25%) of the outstanding shares shall be
deemed an assignment, requiring LESSOR's prior written consent.
LESSOR's consent shall not be unreasonably withheld. LESSEE
shall pay LESSOR's reasonable attorney's fees and costs incurred
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.
10
lCtf=t"b2b~
17~ Insolvencv or Bankruptcy
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
insol veney 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 entity guaranteeing
the obligations of LESSEE hereunder shall have the same effect as
if such event occurred to or action were taken by LESSEE.
18. Remedies For Breach
In the event of any breach of this Lease, or any covenant,
condition or provision. hereof by LESSEE which continues after
LESSOR has .given 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 unreasona~le 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 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 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 terms (which may be for a term 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 right
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 indebtedness other
than rent due hereunder:
11
11DOV237
(a) The costs and expenses (including attorney's
fees and any real estate commission) of such reletting and of
such alterations 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 leased 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 r~letting 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 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 taking 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 terminate this lease for such "previous breach. Should
LESSOR at anytime terminate this lease for any breach, in
addi tion 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'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 remainder 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.
l2
II I ao l.~1
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 than
the failure to pay money.
19. Attorney's Fees
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 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 attorney's fees.
~.
Surrender of Lease
20.
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
assignment 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. Holding Over
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. .
22. Surrender of Premises on Expiration of Term
On the last day, or sooner termination of the lease te~,
LESSEE shall quit and surrender the premises, broom-clean, l.n
good condition and repair (reasonable wear and tear and damage by
acts of God excepted), together with all alterations, additions
and improvements which may have peen in, to or on 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 become the
property. of LESSOR.
23 . Insurance
During the entire term of this lease, LESSEE at its own
expense, shall:
13
~ 12. 't21/1
A. Public Liabilitv Insurance
Provide and keep in force for the benefit: of LgSSOR 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 i: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, 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 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. Fire Insurance
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 fOF full replacement value. .
c. Certificate of Insurance
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 Ifpaid" 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 benefi9iary of
any mortgage or deed of trust to which this Lease is subject 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.
14
113V0231
D. . Worker's Compensation
wi th regard to any Worker's Compensation insurance
carried by LESSEE, the LESSEE agrees that it shall waive the
right of subrogation against the LESSOR (or its employees,
assignees or agents), and such insurance shall provide for such
waiver of subrogation.
E. Waiver of Subrogation
wi th regard to any insurance required 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. utilities
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.
26. Taxes
A. Personal Pro-pertv Taxes
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 Property Taxes--Lessee's Prorata Share
LESSOR shall pay before delinquency any and all
municipal, county or state real property taxes, including special
assessments, 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 including state and federal income taxes payable
by LESSOR as a result of LESSOR's rental income.
15
llcfO~b1
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 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 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. 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 statment certifying that
this Lease is unmodified 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, it being intended any such statement delivered pursuant
to this subparagraph may be relied upon by any prospective
purchaser or encumbrancer (including assignees of either) of
the Shopping Center.
l6
1,5~ 23~
29. Transfer or Reversion
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 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 given by
LESSEE to secure the faithful performance of all or any of 1;he
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 LESSOR shall be discharged from any further liability
with reference thereto.h
30. Rules and Regulations
LESSOR reserves the right to issue such 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 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
facilities 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. Time is of the Essence
Time is of the essence of this agreement and each and every
part thereof.
17
II&; 0:0 t~ 1
32. No Joint Venture or partnership
Nothing herein shall be construed as, nor shall this Lease
create 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 ~ollows:
To the LESSOR:
BERKELEY LAND COMPANY, INC.
12ll Newell Ave., Suite 120
Walnut Creek, CA 94596
To the LESSEE:
William A. Biggs
MATLEY'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. Captions
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
Lease.
36. Successors and Assigns
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.
18
111D() 13~
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 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 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.
39. Governing 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:
BERKELEY LAND COMPANY, INC.
By: de7- ~~r
Its: ~~/~T
,
'{;/i.1fji~
19
\0
f
Il~OO2~
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
THOMPSON PBE. INC.. A Delaware Corporation. herein called "LESSEE".
2 . P.remises
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 buildin~ area on real propertv situated in the City
of Dublin. County of Alameda. State of California. and more
particularly described as follows:
Approximately 1470 net square feet located at
the Dublin Square. The street address is
11815 Dublin Blvd.. Dublin. California ("the
leased premises")
3. Lease Term
A. Commencement. This lease term shall commence on October
1. 1997.
B. Initial Term. The intial term shall be for a period of
thirty (30) months. commencing on the commencement date described
above.
4 . fumt.
A. Monthlv Bent. The initial base monthly rent shall be
One Thousand and TWenty Nine Dollars ($1.029.00),
The first month's rent payment shall be due upon execution of
this Lease,
1
11t1on23~
B. Due Date and Lat~ Charges..
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 received by
LESSOR within ten (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.
".
5. 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 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 beprohibi ted 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 en.ioyment of owners
or tenants of adjoing parcels of real property.
6. ausiness Hours
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
bl.l.s iness 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. that this
provision shall not apply if the le~sed premises shall be closed
2
'-
l ~iJ() 231
and the business of LESSEE therein shall be temporarily shut down
on account of strikeS. lockouts or causes beyond control of LESSEE.
7. Parking and Common Areas
A. Definitions
The term "Shopping Center" means the entire area within the
outer property limit shown on the plot plan attached hereto and
marked Exhibit "A" andal]", 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 Shoppin~ Center shall be included until such.
designation shall be revoked bv 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 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 invi tees. 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 Exhibit "B". and
the LESSOR reserves 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 eliminate or add any imprOVements or 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.
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 business 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 common areas. including the accommodation areas.
the parking areas. and road. subject to any rights. powers and
nrivileges resrved to LESSOR. No parking fees shall be established
and no meters shall be used.
3
l~tav 2;~
B. Parking 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. 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 parkin~ 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 Expens~
During this Lease. the LESSEE shall pay its prorata share of
the common area maintenance costs including an administrative fee
of 10%. Tenants proportionate share shall be a sum equal to the
product obtained by multiplYing the total cOsts by a fraction. the
numerator of which is the number of square feet in the premises and
the denominator of which is the total square feet of rentable
ground floor area of all areas in the Shopping Center.
8. Na.m.a
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.
4
(~ 2 U() '2"3. ~
9. 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. ahall become a part of the
realty and belong to the LESSOR at the expiration of this Lease or
earlier vacancy of the leased premises bv LESSEE.
B. No Mechanic's Liens
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 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 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. 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 a~rees to execute and
file a notice of completion as provided in Section 1193. l( 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
LESSOR within 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
paid rent due in that sum.
10. Mai~ten~nce and Renairs
A. LESSEE's Direct Maintenance and Repair~
LESSEE shall at its own cost. keep. repair. 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 glazin~ of store front. heating. air
conditioning. electrical. plumbing. ventilating. fire sprinkling
system. if any. and fire extin~uishers. and the interior of the
5
l '33 J()'2S1
premises. in good and sani tarv 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 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.
B. LESSEE's Reimbursement of ~ESSOR-s Repair ExpenSes
'l'he 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.
LESSEE shall reimburse LESSOR for such repair expenses of
LESSOR on the same proratq. basis as described in the paragraph
entitled "Parking and Common Areas". above. LESSOR shall also
repair and maintain the exterior painting. plumbing and electrical
systems in 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 billing therefor for
LESSEE's prorata share.
11. Compliance with Government Regulq.tions. LandOse Permit. etc.
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 judgment of any court of
com?etent 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 ?remises. shall be conclusive of that fact as
between LESSOR and LESSEE. Notwithstanding anything to the
contrary in the foregoing. LESSEE may contest the validitvof 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
ordinance. statute. rule or regulation.
6
l~~1J 23~
12. Entrv bv LESSOR
LESSEE shall permit LESSOR and its agents to enter into and
u~on 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 scaffoldin~. cano'Dies. fences and
props as may be required or for the pur~ose of posting notices of
non-liability for alterations. additions or repairs or for the
purpose of placing upon the leased premises any usual or ordinary
"For Sale" signs. or for ii,he 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 the purpose of exhibi tin~ 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
o'Ption 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 wi thin ninety (90) 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 exhibiting the
premises to any prospective tenant. Such entry shall not interfere
with normal business operations.
13. Damage or Destruction of Premises
A. In the event of a partial destruction of the premises
durin~ 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 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 premises. or if 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 restoration. the LESSOR shall give ~ritten notice to the
LESSEE wi thin ninety (90) days after the occurrence of such
destruction or LESSOR's election either:
7
\~5 DQ Z"3t1
(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 arisin~ 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 ~hich was origin~.lly constructed or added by LESSOR and
shall not involve the repair or restoration of any fixtures or
alterations installed by LESS.EE 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
(30%) of the total square footage of the improvements erected uPon
the leased premises are destroyed unless LESSEE and LESSOR agree
otherwise in ~riting.
D. In repa~r~ng or restoring the leased premises. LESSOR
shall not be liable for any delays resul tin~ 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. they 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.
14. Assignment and 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
8
I~~ 2~~
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 laYl without
the written consent of LESSOR.
Any transfer or shares of stock by LESSEE in excess of t~enty-
five percent (25%) of the outstanding shares shall be deemed an
assignment. requiring LESSOR's prior written 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.
15. Insolvencv or Bank~l~tc~
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 paras:raph. 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. Remedi~s For Breach
In the event of any breach of this Lease. or any covenant.
condi tion or provision hereof by LESSEE which continues after
LESSOR has given 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 shall have the immediate right of entry
without 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 elsewhere at the cost of
and for the account of LESSEE.
9
I~l UfJ2.3Pf
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
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 right 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 indebtedness other than rent
due hereunder:
(a) The costs and expenses (including attorney's
fees and any real estate commission) of such relettin~ and of such
alterations 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 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 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.
10
1<c6~2 ?;'1
No such entry or taking 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
t'eletting 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 bv 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 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 required by this Lease shall be ten (10)
days if the breach cons ists of the failure to pay money. and thirty
(30) days if the breach consists of anythin~ other than the failure
to pay money.
17. Attornev's Fe~s
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 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 attorney's fees.
18. Surrender of LB8se
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 existin~ subleases or
subtenancies. or may. at the option of LESSOR. operate as an
assi~nment 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.
11
l8~ lfJ't]Of
19. Holding Over
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. Surrendpr of Premises on Expiration of Term
"
On the last day. or sooner termination of the lease term.
LESSEE shall quit and surrender the premises. broom-clean. in good
conditiion and repair (reasonable wear and tear and damage by acts
of God excepted). together with 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. Specifically. all built-in
cabinets. counters. desks and shelves shall remain and become the
property of LESSOR.
21. Insurance
During the entire term of this Lease. LESSEE at its own
expellse. 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 fail 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 carrYin@." 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
12
l~D'b t3q
the riJ?: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. Fire Insurance
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 cost for which the
Tenant is obli.Q:ated to contribute its proportionate share as
described in 7.(Dl of this Lease.
C. Certificate of InsV~ance
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 sub.ict 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. Worker's Compensation
Wi th regard to any Worker's ComDnsation insurance carried
by LESSEE. the LESSEE agrees that it shall waive the right of
subrogation against the LESSOR (or its employees. assignees or
agents). and such insurance shall provide for such waiver of
6ubroJ?:ation.
E. Wa:i ver ofSl,lbrogation
With regard to any insurance required 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.
13
ltq l~t~ct
?..,
-~.
Indemnif;i~ation
LESSEE shall indemnify and hold LESSOR harmless and defend
LESSOR from any and all claims of liabili tv 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.
23. Utilities
"
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.
24. Taxe~
A. Personal Property Taxes
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 Propertv Taxes--LessAe-s Prorat~ 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 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
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 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 LESSOR 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.
14
l1~ ~2Y1
25. Exclusivjtv and Other Tenants
LESSOR agrees that during the time this Lease is in force.
LESSOR will not lease other premises in the Dublin Square Shopping
Center solelY as an automobile paint supply store.
26. 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 mortga~ee or beneficiary named in anY such mortR:age 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 mortga~ee 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 (10) days' tn:ior 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 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. it being
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 Shopping Center.
27. Transfer or Rp.version
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 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 given by
LESSEE to secure the faithful 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
LESSOR shall be discharged from any further liability with
reference thereto.
15
lL13 Db 2~~
28. Rqles and Regulations
LESSOR reserves the right to issue such reasonable rules and
regulations. relatin~ 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 ri~ht to close. if necessary. all or any portion of
the common area. 6ide~alks. roads. access roads. malls and other
facilities 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 re~ulations 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.
29. Time is of the ABsence
Time is of the essence of this agreement and each and every
part thereof.
30. No Joint Venture or P~rtnership
Nothing herein shall be construed as. nor shall this Lease
create a joint venture or partnership by and between LESSOR and
LESSEE.
16
'.
I q 4- Et{) '2~~
31.
Notices
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 bv mail. uPon deposit in the mails. postage prepaid and
addressed as follows:
b
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. 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.
33. Captions
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.
34. Successors and Assigns
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,
17
r q~ JtJ1--3~
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 9gainst 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. "
36. Invalidity of Particular Provision
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 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 bv law.
37. Governing 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:
BERKELEY LAND COMPANY. INC.
By:
b< :1 L- 4~
Frank Sabatte
(f~
By:
~'- 17-J,;n\A! P-
Its:
Its:
()~ ~ r,":' ..,
18
:'
14~Vb2~1
~
DUBLIN SQUARE LEASE
THOMPSON PBE. INC..
A Delaware Corporation
11819 Dublin Blvd.
Dublin. CA 94566
INDEX TO LEASE
f,
1. Parties
2. Premises
3. Lease Term
4. Rent
5. Security Deposit
6. Tenant Improvements
7. Use and Prohibited Uses
8. Signs
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
27. Taxes
28. E~clusivity and Other Tenants
29. Subordination
30. Transfer or Reversion
31. Rules aRd Re.e:ulations
32. Time is of the Essence
33. No Joint Venture or Partnership
34. Notices
35. Waiver of Breach
36. Captions
37. Successors and Assigns
38. Interpretation
39. Invalidity of Particular Provision
40. Goverping Law
Page
1
1
1
2
3
3
3
4
4
4
6
6
7
7
8
8
10
10
11
13
13
13
13
14
15
15
15
16
16
17
17
18
18
18
18
18
19
19
19
19
(41Db /"3'1
DUBLIN SQUARE LEASE
THOMPSON PBE. INC.
A Delaware Corporation
11819 Dublin Blvd.
Dublin. CA 94566
1. Parties
i.~
This lease is made this 1st day of April, 1995, by and between
BERKELEY LAND CO.. INC.. herein called "LESSOR". and THOMPSON PBE,
INC.. A Delaware Corporation. herein 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 2600 net square feet located at
the Dublin Square. The street address is
11819 Dublin Blvd.. Dublin. California ("the
leased premises")
3. Lease Term
A. Commencement.
1, 1995.
This lease term shall commence on April
B.
five ( 5)
above.
Initial Term. The intial term shall be for a period of
years. commencing on the commencement date described
C. Option. In addition to the initial term. LESSEE shall
have one (1) option to extend the lease for an additional
consecutive term of five (5) years.
D. Exercise of Option. 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 (180) days before
the termination of the existing lease term. If the option is
exercised. the lease shall continue upon all of the same terms and
conditions. except for the rent. which shall be set forth below.
l q'b "b t;St'1
4 . fum.t
A. MQf1tnlv R~nt. The initial base monthly rent shall be
Twenty Three Hundred and Forty Dollars ($2.340.00l.
The first month's rent payment shall be due upon execution of
this Lease.
B. Due Date and Late Charges.
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 received by
LESSOR within ten (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. cpr Increase. 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 by the
United States Department of Labor --"the Index"--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 (3) years] at the CPI increase date.
D. Option ~eriod Rent. In the event the LESSEE exerciseS
the option referred to in 3C.above. to extend the or?-ginal lease
term for an additional three years (3). the initial rent at the
commencement of each additional three (3) 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 ~he mutual written agreement of the parties. if
possible.
If the parties and their legal representatives cannot reach
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 appraisals 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,
2
tq'1 ~ 2~q
the LESSOR reserves the right from time to time to make changes in
the shape. 13 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 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 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
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 common areas. including the accommodation areas.
the parking areas. and road. subject to any rights. powers and
privileges resrved to LESSOR. No parking fees shall be established
and no meters shall be used.
B. Parking 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. with reasonable
provisions for landscaping. access and other accommodation areas.
C. Lessee's Parkin~
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.
5
2.00 DlJ l3,Q
~. CPI Increase During Option Period. 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. Security Deposit
LESSEE, as Assignee ox 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 Improvements. 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 accom-plished 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
Mgr. ).
7. 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 pl).rpose 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 e}(isting 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
3
"
"'20 llfb 23'
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 Gommitted. 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.
8. Signs
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. Business Hours
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. that this
provision shall not ap1?ly 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.
10. Parking and Common Areas
A. De1;initions
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 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 invi tees. 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 Exhibit "B". and
4
2f)2 un23~
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.
The monthly Common Maintenance charge will be a continuation
of $60.00 per month as was in the prior Lease contract.
..,
11. 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
building. The provisions .of this paragraph shall apply to any
person. firm or corporation which controls or is controlled by
LESSEE.
12. A.lteratians
A. Limitation
IrESSEE 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 becom.e 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 M~~hanic's Liens
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 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 labar. services,
materials, supplies or equipment alleged to have been furnished to
.or for LESSEE, payment f.or which may be secured by mechanic's or
materialmen's liens against the premises or LESSOR' s interest
therein. Notwithstanding the f.oregoing. 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 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
U) ~ ~2~1
LESSOR within 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
paid rent due in that sum.
13. Maintenance and Repairs
A. LESSEE'e Djrect Maintenance and Repairs
".
LESSEE shall at its own cost. keep. repair, replace and
maintain the leased premises and every part thereof, (excluding the
foundation. roof and exterior ~alls 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 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.
B. LESSEE's Reimbursement of LESSOR's R~-pair 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.
LESSEE shall reimburse LESSOR for such repair expenses of
LESSOR on the same prorata basis as described in the paragraph
entitled "Parking and Common Areas". above. LESSOR shall also
repair and maintain the exterior painting, plumbing and electrical
systems in 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 billing therefor for
LESSEE's Prorata share.
14. Compliance with Government Regulations. Land Use Permit. etc.
LESSEE shall. at its sole cost and expense, comply with all of
the municipal, county, state.
guasi-governmental authorities
be in force, pertaining to
fai thfully 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
ZD4cf{)23Q
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. 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'4LESSEE 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
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 alterations or
additions 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-liability for alterations. 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 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 oGcupation or
quiet enjoyment of the premises thereby occasioned. LESSEE shall
permit LESSOR. at any time within ninety (90) 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 exhibiting the
premises to any prospective tenant. Such entry shall not interfere
with normal business operations.
16. Damage or Destruction of 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 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
8
205~ 731
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 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 premise~. or if 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 restoration. the LESSOR shall give written notice to the
LESSEE within ninety (90) days after the occurrence of such
destruction or LESSOR's election either:
(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 ~ESSEE. 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 by LESSOR and
shall not involve the repair or restoration of any 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
(30%) of the total square footage of the improvements erected upon
the leased premises are destroyed unless LESSEE and LESSOR agree
otherwise in writing.
D. In repalrlng 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.
9
Zf)~ ifJ 2-3q
F. In the event of any dispute between LESsbR 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 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.
17. Assignment an~ Subletting
LESSEE shall not voluntarily assign this Lease o.r 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 w-i thheld. 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.
sublettin~. 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 be deemed an
assignment. requiring LESSOR's prior written 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 s~bletting.
In the event that LESSEE assigns or sublets this Lease at a
higher rental than the rental set forth herein. one-haLE (1/2) of
such increased rental shall be paid to LESSOR.
18. Insolvency or Bankruptcv
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.
10
l<O [Db '2 3Pi
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 guaranteeing the obligations of LESSEE hereunder shall have
the same effect as if such event occurred to or action were taken
by LESSEE.
19. Remedies For Breach
In the event of any ereach of this Lease. or any covenant.
condition or provision hereof by LESSEE which continues after
LESSOR has given 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 shall have the immediate right of entry
without 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 elsewhere at the cost of
and for the account of LESSEE.
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
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
condi tions as LESSOR in its sole discretion
may deem advisable with the right 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 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
alterations and repairs incurred by LESSOR:
11
20'800 2311
(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 pavment 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 bv 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 if such rentale 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 taking 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 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'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 of
which amount shall be immediately due and payable from LESSEE to
LESSOF..
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 required by this Lease shall be ten (10)
days if the breach consists of the failure to pav money. and thirty
(30) days if the breach consists of anything other than the failure
to pay money.
12
20.?fVO 13'1
20. Attorney's Fees
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 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 attorney's fees.
..i)
21. Surrender 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
assignment 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.
22. HoldinaOver
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.
23. Surrender of Premises on Expir:ation of Term
On the last day. or sooner termination of the lease term.
LESSEE shall quit and surrender the premises. broom-qlean. in good
conditiion and repair (reasonable wear and tear and damage by acts
of God excepted). together with all al terations.addi tions 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. Specifically. all built-in
cabinets. counters. desks and shelves shall remain and become the
property of LESSOR.
13
2 fD Vb t..~'1
24. Insurance
During the entire term of this Lease. LESSEE at i ts o~n
expense. shall:
A. Public Liability 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 fail 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 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. Fire InsuranCe
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.
C. Certificate of Insurance
At the commencement of the term of this Lease. LESSEE
shall deliver to LESSOR. certificates of inS1J,rance 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
14
211 ~z.~~
be delivered to the beneficiary of any mortgage or deed of trust to
which this Lease is sub.ict 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. Worker's Compensation
With regard to any Worker's Compnsation insurance carried
by LESSEE. the LESSEE agl:'ees that it shall waive the right of
subrogation against the LESSOR ( or its employees. assignees or
agents). and such insurance shall provide for such waiver of
subrogation.
E. Waiver of &ubrogation
With regard to any insurance required 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.
25. Indemnification
LESSEE shall indemnify and hold LESSOR harmless and defend
LESSOR from any and all claims of liabili ty 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.
26. Utilities
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.
27. Taxes
A. Personal Property Taxes
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.
15
212 U:02~~
B. Real Propertv 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 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
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 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 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. .
28. Exclusivitv and Other Tenants
LESSOR agrees that during the time this Lease is in force.
LESSOR will not lease other premises in the Dublin Square solely as
an automobile supply paint store.
29. 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 bv 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
tru.st 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 statement certifying that this Lease is
unmodified and in full force and effect (or if there have been
modifications. that the same is in full force and effect as
mo.dified and stating the mo.difications) and the dates to which the
fixed rent and other charges have been paid in advance. it being
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.pping Center.
16
. .
213 1;13&f
30.
Transfer or Reversion
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 vf 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 given by
LESSEE to SeCure the faiiFhful 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
LESSOR shall be discharged from any further liability with
reference thereto,
31. Rules and Regulations
LESSOR reserves the right to issue such 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 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 rule.s 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.
17
214-~ 'l?q
32. Time is of the essence
Time is of the essence of this agreement and each and every
part thereof.
33. No Joint Venture or Partnership
Nothing herein shall be construed as. nor shall this Lease
create a joint venture or partnership by and between LESSOR and
LESSEE. n
34. Notices
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 ~riting 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. 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.
36. Captions
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.
18
'''''t . Glen Thompson 21? ~ 13~
, Vice President I California Operations
IT~J
SuppryingAmerica:S Body Shops.
4553 Glencoe Avenue .#200
:37 . Successors and Ass il1ns Marinlt del Rey, CA90292
(310) 306-7112 ph. I (310) 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.
,l.
38. 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.
39. Invalidity of Particular Provision
If any term or provision of this Lease or the applicability
thereof to any person or circtlmstance 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 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. Governing 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.
By:
.~~~
LESSEE:
THOMPSONP BE.~.INC
A Dela~Co ation
By: U~ h
LESSOR:
BERKELEY LAND COMPANY. INC.
Its:
Frank Sabatte
P(Xl?~.
Its:
0('i
fJt1 er/ld~r
19
/
.,""', .....1
A~:SlGNMENT. ASSUMPTION AND CONSENl "
~~
fYL.2' &> i5fJ2.37
Berkeley Land Co., Inc. ("Lessor") and Thompson PBE, Inc. ("Lessee") have entered into a ceZ;; lease dated May
12, 1990 (collectively the "Lease") for certain premises located at 11819 Dublin Square, , V\lajIf f'eek, CA; as
more specifically defined 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.
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~ Lease, 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.
~ Th._onPBE,lnc
By {;<.
Print Name: Robert R. Millard
Title: Vice President - Finance
Lessee
~?"~<"lnc
Print Name: Robert R. Millard
Title: Sr. VP -Finance
Transferee
In consideration of the covenants, agreements and warranties of Lessee and Transferee as set forth above, Lessor
hereby consents to the assignment of the Lease to Transferee on the following terms and conditions:
1. Lessee shall remain liable for the performance of all of Lessee's obligations under the Lease, as it may be
amended from time to time.
2. Transferee shall operate the Premises for the remaining term of the Lease pursuant to all of the terms and
conditions set forth in the Lease.
I
By ~O.~
Print Name: J4IC~(.,' . 11 Jt::4J/dA
Title: t:.(,N.emt...- J.1N\141batL
Lessor
~"
2111f~t::f
t
EXTENSION OF
REAL PROPERTY LEASE
Parties
This Agreement is made between BERKELEY LAND CO., INC, a California corporauon
("Lessor") and FINISHMASTER, INC., a corporation ("Lessee").
Pm:pose
This Agreement is made with reference to the following:
A. Lessor and Lessee's predecessor, THOMPSON PBE, INC., entered into two
related real property leases by which Lessee leased space in the Dublin Square Shopping Center,
located on Dublin Boulevard, Dublin, California, owned by Lessor, as follows:
1. Lease dated April 1, 1995, for 2,600 sq. ft., described as 11819 Dublin
Boulevard, for an initial term of five years, commencing April 1, 1995, and expiring March 31,
2000 (the "11819 Lease"). The 11819 Lease granted Lessee one option to extend the 11819
Lease term for five years, which was not exercised.
2. Lease dated September 12, 1997;for 1,470 sq. ft., described as
11815 Dublin Boulevard, for an initial term of thirty months, commencing October 1, 1997, and
expiring March 31,2000 (the "11815 Lease"). The 11815 Lease contained no option to extend
its term.
B. Upon the expiration of both Lease terms on the dates set forth above, Lessee
continued to occupy the respective premises described in the Leases as a month-to-month tenant,
in accordance with Section 22 of the 11819 Lease, and Section 19 of the 11815 Lease entitled
"Holding Over".
C. Lessee and Lessor have treated both Leases as one single Lea$e.
D. Effective June 30, 2000, THOMPSON PBE, INC. assigned the 11819 Lease to
Lessee by a written agreement entitled "Assignment, Assumption and Consent," to which Lessor
consented (the" Assignment"). The Assignment was intended to refer to both Leases.
E. The parties wish to enter into an agreement whereby the Assignment will be
deemed to apply to both Leases, the Leases shall be deemed combined, the term of the combined
Lease shall be extended, and the rent owed during the extended term specified.
1
'"
,
"
l
21~vrJ3Cj
Agreement
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 of this Agreement (the "Lease").
3. Extension of Combined Lease: The term of the Lease is extended for a period of
two (2) years, commencing January 1~ 2002, through December 31, 2003, and expiring on the
latter date (the "Extended Term").
4. &mt: The base rent due lIDder 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 HlIDdred Dollars
($4,500) per month.
5. No CPI: In view of the specified rent set forth above, the Lease shall not be
subject to Consumer Price Index rental increases during the Extended Term.
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 of the Lessee as set forth in the Lease, shall remain lIDchanged
Lessor:
BERKELEY LAND CO., INC.
a c~.. orati.'on
By:. ~
S. MIKULICH,
General Manager
Dated:
~I j z---
Lessee:
FINISHMASTER, INC., a corpor on
?\)
Its: Cfb :S F, ,,(~L
Dated: f1!/;?kfl b, Zoo*/:....
.
2
~
*~
.
;C/.vAc.
,..- z. '-'.- .I';'~ :)
. r ~ ('...-.......
(:'.~, j .,#
2l~ 1)"130,
LEASE AMENDMENT
THIS LEASE AMENDMENT to Lease executed on April 14, 1967, is
executed in duplicate at Pleasanton, California this 9th day of
May
, 19~, between BERKELEY LAND COMPANY, a
California Corporation, hereinafter referred to as Lessor, and
COMMUNITY FIRST NATIONAL BANK, 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
Square 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;
WHE:REAS Lessor intends to make certain modifications to the
Dublin Square Shopping Center to include, a fascia and signage
upgrade of the center's exterior along with related parking lot,
landscaping and lighting improvements that will significantly
enhance the center's appearance; and
WHEREAS Lessee desires to expand its building by approximatelY
one thousand one hundred (1,100) square feet on the parcel of land
which is the subject of the Lease;
NOW, THEREFORE, IT IS AGREED between the parties hereto as
follows:
AVO/ A:WP50\LEASEAIID. eFB
3/5/90
1
~
22 Dii[) 7.. ~&;
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 ofa Notice
of Completion by Lessor. Lessor further agrees to complete its
improvements on or before December 31, 1990.
2. Building Expansion. 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 construction, Lessee shall obtain
Lessor's approval of the plans therefor, prior to making such
alteration, improvement, addition or change, which approval shall
not unreasonably be withheld by Lessor. Lessee, at Lessee's own
expense, shall comply with all present and future governmental
requirements relating to the leased property only, arising out of,
in connection with, or necessitated by such alterations except as
may otherwise be established herein.
(e) Lessor agrees to cooperate fully with Lessee's
planned expansion, pursuant to the provisions and obligation of
both the' Lease and this Lease Amendment. Lessor agrees to
cooperate with Lessee to obtain approval of the City of Dublin.
Lessor's cooperation shall include, but not be limited to the
preparation of traffic engineering studies, application for
variance(s) for parking, and such other items as may be required
.....
AVD/A,WP50\LEASEAHD.CFB
3/5/90
2
"
221ttt~30
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. Assignment and 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 or persons other than Lessee, or sublet the premises or any
part thereof. No part of the leased premises shall be sublet for
a purpose which is unlawful, dangerous, noxious or offensive. Any
such assignment or subletting shall not be for the conduct of a
business that would directly 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 hereto shall specifically agree in writing
that such proposed assignment shall so release the assigning or
subletting party.
4. Paragraph 10 shall be amended in its entirety to read as
follows:
10. Option to Purchase Building: Lessor shall have the
option to purchase Lessee's building at Lessee's unamortized cost
in the event of destruction or condemnation as provided in
Paragraphs 12 and 13, should Lessee elect to terminate this Lease
under the provisions of said paragraphs. 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
such event, if Lessee does not sell or remove said building, then
it shall become the property of Lessor; and Lessor agrees to
indemnify and save Lessee harmless from and against 'any and all
claims arising from Lessee's failure to remove said building from
said land by any person or to any property, and from anp against
all costs, expenses, and liabilities which may be incurred in or
in connection with any such claim of proceeding brought thereon.
Any such election by either party shall be made by
written notice from one party to the other, on or before thirty
(30) days 'after the date of the mutually agreed termination of the
Lease or the natural expiration of the term of the Lease or the
renewal if the option to renew is exercised by Lessee.
AVD/A:WP50\LEASEAHD.CFB
3/5/90
3
2 2'21J2 5~
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 othervlise 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 'bf the then current term of its intent
to extend this Lease..
6.
Fair Market Value.
"Fair Market Value" shall mean the
fair market base rent as defined below, at the time or times in
question for the premises, based on the prevailing rentals then
being charged to tenants of ground leases in the general vicinity
of the premises of, comparable size, location, and under similar
circumstances as the subject premises.
7.
Determination of Fair Market Value.
Lessor and Lessee
shall endeavor to agree on the fair market value.
If they are
unable to see agree within 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~al vicinity,
and the two real estate appraisers shall mutually appoint a third
appraiser similarly qualified.
The three appraisers shall then
determine the fair market value by majority vote, and this
determination shall be binding on the Lessor and Lessee. Lessor
and Lessee shall each bear the cost of its appraiser and shall
share equally the cost of the third appraiser.
AVO/A:WP50\LEASEAHD.CFB
3/5/90
4
7-2.3 JfJ30(
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease
Amendment on the date first above written.
BERKELEY LAND COMPANY,
A California Corporation
~y: g7 4d#l!
By: 6?~ <:
LESSOR
By:
NATIONAL BANK,
By:
~VD/~:WP50\LEASEAHD.CFB
3/5/90
5
.~ -
-......L.I:o..II.L...:."..~....... . . .__._
..~J.. ..... .. LV
. EXHIBIT A' ! .' . '
! '~2.4Jf)Z?/f
. . ;.....
. ~ 1 ..
.. ,-,~J '
---..... '
I
......-
. t... ''''
.t:.
, .
..
That parcel of land 1n the Townsh1p of Pleasanton, County or Alameca,
State of California. de~Qr1bed as fo~low8:
..... ~ .....
-Tr_
. .
Beglnn1ng at the p01nt of 1ntersect1on :Jf the southeastern l1ne of
the State H1ghWaV from Haywal"d. to L1ve:r~ore tilth the southwes:cern 'line
"', ot the parcel ot land des1gnated as Parcel 21n the <1oed to ~
H. .B. Oxsen' record.ed June to, 1936 in Book 3317 OR, page 470 ) A la.f.ec.a
. County Records ; thence along tbe last named' l1ne SOl.lth 210. i5L.east_
18~ feet; thence north 660 45' east 25 feet to the actual point ot
· co~~encement. thence south 210 15' east 90 feet. thence nor~h 680i~5'
east 90 teet. thence north' 210 1;' west 90 feet; thence $outh 68Q'~5t
west 90 teet to the actual point of co~ence~ent.
.'
11'1........................."'
A....
.t..
'.
. .
.
.;fO
~
~,
\'i"
. ~
;:;)
.' .,;A'/
;Iff;/;'.
.'
~
-...:.
,-
~.
"
. 1,#
q'" ,
~~ ,,,,}-\"e:
"V ....r
~ ..'
[i6.
" o~
. 113 0"
~. . SbSJjl
PORTION OUTLINED IN REO COMPRISES
THE SlOO,SQUARE: FEET LEASED BY LESSEE
....
.::
.....
""t-,~
~..
G
).
~'
'-
"
, . 6"'.....-/\'
~iJr \
.' ~r,"./~ . \
4.>> t'I' f \
CP":r. ,
. '. '\..., .,' .. \
' ". \ooO~'->>..
. . All; '. . .' ..!tI.lf.t~ ~
.,.......~ .' Id~' .. .....
. ~~S",., . '
, ,.'0 i;:.' ~ 1;:. 11 11. . .
,on . " .'
~ .......
\t\
,I
,/
1/
"
, ,
'r-....
t
\
...
.
,
...
.
'"
. . .. '.
THill I. HOT" e..,llvey O,.Ytlr IoA"O, &lUT ,,, COM'llollO 'ROM O...T... SI<<lWI'C av TliC P'UIIl.IC\ IIECO:t:l5 .
\.''!'C....n'. ......"f "'"' ~"". fill....... t,. ..t . . ........ . .......
""l,. ., 1':'1' tll.....'. . fl' _""
"EXHIBIT A I'
. I
'.. ..
..:' ..
I
,
BERKELEY LAND COMPANY, INC.
1211 NEWELL AVE.. SUITE 120
WALNUT CREEK. CA 94596
PHONE: 256-1108
~2.S'b 1.31
January 12, 1990
Robert C. Philcox, President
Community First National Bank
749 Main Street
Pleasanton, CA 94566
RE: Your Revised Lease Amrnendment at Dublin Square
(Received l2/19/89)h
Dear Mr. Philcox:
I met with Mr. Sabatte (LESSOR) and Mr. William Lane (Architect)
regarding the above subject. Mr. Lane displayed his revised
rendering with associated cost estimates. After study and evalu-
ation, Mr. SaDatte made the following firm decisions:
A. We will not expend at this time, nor in the near
future, the total project cost as outlined by Mr.
Lane.
B. We will, in the spring of this year, complete
Dublin Square visability improvements, V1Z:
Landscaping, per W.Lane
Uniform signage, per W.Lane
. Exterior painting, perW. Lane
Plumberyexterior work to satisfy prior
city mandates.
We have every intention of completing the above
phases, as noted.
C. Mr. Lane's revised rendering is available for your
perusal. Your architect can use same in order to
have design compatibility in your bank expansion plan.
I conceive of no reason why you cannot now proceed with your ex-
pansion plan. However, your revised amendment should be modified
as follows:
Page 2 Para.2
Add after LESSOR'S proposed modification "as outlined
ip the attached letter of January 12, 1990 by Elmer H.
Hansen."
Page 3, it5
Change wording to include : Rent to be adjusted to Fair
Market Value prior to exercise of option, etc.
22~% "'2?>Cj
Robert C. Philcox
Community First National Bank
January l2, 1990
Page 2
Include
Rent shall be subject to CPI increases every three (3)
years, not to exceed 7% each time.
Mr. Philcox, I feel that we are coming closer to our objectives.
Call me if you have any questions at: (415)8-37-4105 (after J p.m.)
(4l5)256-1l04 (Tues. Or Thurs.)
Thank you for your patience.
Sincerely,
BERKELEY LAND COMPANY, INC.
.., r ,L/. ~...../f J
~ /. .
(o.L:-/-?~ ., , . 1.
Elmer H. Hansen ~.
EHH: j
cc: F. Sabatte
J. Sabatte
W. Lane
/90
..
.
.
27
28
29
30
31
32
~' (~.
...'''::
.. '--'- -~ -,:'- i,
',., " '
~., -"": .~- '
'j
'I J'.b1?/1
1
LAND LEASE
THIS LAND"LEASE, executed in duplic~te 'at Pi~~;a~ton, , I".
.;'.. " , ." . '. ' .. " , a . corpOrat ion '.
California, on April 14, 1967, between , BERKELEY LAND COMPANY/and ~HE
,;, "a,corporataon, ", ,,,,,:',,:., i
FIRST NATIONAL BANK ~F PLEASANTON,/hereafter called ~~spe~~i~~lY,1
the Lessor and'Le~se~, without regard to number or gender.
.~r_,_:'~"~:',' ,.~,.-.' : ,-':1;' I~ I
IT IS AGREED between the parties hereto as follows:
2
3
4
5
6
7
,',
1.
. .- , i .~
DESCRIPTION OF PREMISES:
The Lessor hereby leases
. _~ ~ _..' ",' . I .
8
p' \ ..- ;.,. l . .: ."' .... ~ f: '~. .' '." 'i~ . l":' ~'., " I '. :~.
to~e Lessee the re~l p~operty situated in the DUblin Square
. _ ..~. '. 1" t'. . . -,! . .: '. 1": , . ~ '. (; 'Y
Shopping Center, on Dublin Boulevard, Dublin, Alameda County,
9
Ie
. ". :. 7" .... .. . . - ~.'~ ... .f. ,~,-.
California, ~fo x 'gO feet, more particular'ly described in "Exhibit A"
11
V"_ 1 .
attached ~ereto and made a part hereof.
~~ "" ('1 t:: . ".~ ~)_ "'-:; ;:, ~,~ 1~
2. TERM AND RENT: The term shall be for twenty (20)
, "\ "'", " . ' " '! -: . ", , " " .., ' "';,.,, . ' .
years commencing on the-firstday of October, 1967, at a total
'... , ' .', > .' ~. ~, " l . . ;:"t?'~ ! \ _ 'i
rent or sum of TWENTY-SIX THOUSAND THREE HUNDRED TWENTY-THREE and
12
13
14
15
.. ..: ~\ i:,. '. ~ . . J. '_ . J\'
20/100 DOLLARS ($26,323.20), lawful money of the United States,
16
. -t.,-"I,' _-; ,_~.....;.:~!~ 'I, . ~ \......-
which sum ~hail' be paid in installments as follows:
ONE HUNDRED
,,; '..... ,I
17
NINE and 68/100 DOLLARS ($109.68) on October 1, 1961, ONE HUNDRED
18
.' '. l "
NINE and 68/100 DOLLARS ($109.68) on the .first day of each and
19
" ,
every month thereafter until said total sum of1WENTY-SIX THOUSAND
20
'~-. ',,-1 ;;,'.': _. . .-: \ .'
THREE HUNDRED TWENTY-THREE and 20/100 DOLLARS ($26,323.20) has be n
21
22
". 'I
.. .' \ .~' .
paid.
3. CONDITIONS: This lease is subject to the following
23
conditions:
24
25
(a)
That Lessee receives the necessary permits,
. . .~" , ;. ~ l .:" '. _ ::. F:' \(' . .
authority and approval of all federal, state, county an
26
r ,~_,. i '. . 1 << . .,
municipal agencies having jurisdiction for the construe
. ~ ~ ',' .
t10n, erection, maintenance and use of a commercial
. . ~ ~..
building on the real property described hereinabove.
'. ~., . ~- < . . '",
'< ", /!'i:: ',i. l". I
(bY That the Comptroller of the Currency of the
i '\ 1 '~'." '. "\ , ., .... ." . __,
United States, or other bank supervisory authority
'.,
,; '\;
. -: ;~ I .;, ;'" >,:, ' .,'
,
to relocate the Branch of Lessee, now
t:
grant a permit
i ," 1 u.J.
located at 11902 Dublin Boulevard, to the demised
....:~ pi-e~I~~; . l" ", (.
'1 ,;
'I; I.; : ~ ~~ r\ ,-.I
-1-
'r.
--.-'---~~f)::
r 'l" ~
31
32
'l!$!:U~.,,,,,,"_ ~
,. ~," "
, .
1
(c) ,. That. Lessor is able to secure ,the r-eleall1E1 f+:om
an' existing' deed of trust on the 'entire i.Dubl:l.n ,Square
Shopping Center, as to the pertion,of said Shopping
2
s
4
Cefiter,to'be, leased by Lessee, so that :(..esseels,1.~as,-
hold iriterestwill.be prior:, superior and paramount. to
t:he':Uen"o'fanyfilortgaga' or deed, of..trust ,whichunay now
,'" ., '..,,', or hereeifte':f:affe'ct Lessor' s fee interest" in the'. l~ase<<l'
5
6
7
8
property o':r'any part thElreof~. In the event..~s';!lW:":i.s:,,.
unable: ,to' obtain such a release, this lease shall be
9
10
null ~'d void., :;'"
\ c , ~.~
11
12
';If' any 'of,t:he'foregoinggoverninental, agencies' shquld
prohibit,' enjoin or 'penalize Lessee in the' construction, ere~~ion,
mai'ritenar.lce) ''Or uSe'ofsaid premises by Lessee , ,Lesse,eshall .~ave
the"option"'to ,treat :tbis.:lease as null and void. In :the,!'l.ve,nt .' ;
L'e'ssoris\:iIi'able- 'to: '-Obtain .the releasEr of the portion ',Of, 't41';l pre-
mi'ses . known as the Dublin Square Shopping Center, described
hereinabove. to' be leased, by Lessee, 'from the exis'ting Qeeq.;of
Trust on said'premises so that Lessee's leaseholdinte4e$~ as
13
14
15
16
17
18
19
contained he:redn shalt be prior, superior "and 'paraluount:,to s~:td""
20
deed "of trust, this lease shall be null and void. Lessee shall
21
22
give notice ,in writin,g,to Lessor_ o.f any such election. undeJ;:,.this
paragraph'within thirty; (iG)' days of the,date that LeSsee receive
knowledge of the failure ',of any of ,the conditions containec;L,herei .
Lessor agrees'to give ;nQtice to Lessee in writing within 'Sixty .
, ('60)' days' from the date, of the execution, o,f this lease ~!i;lto: .
whether or not.;the holder:of said,deed.of trust will subordinate
to' Lessee"s' interest, as contained herein.
23
24
25
26
21
28
, 4. ' -CONSTRUCT-lONElY LESSEE: .. .
29
30
, ,. . car' Lessee"$hall at'his;.lsole cO.at'and expense}, con,
struct 'on the.' demised premises., a bank building oL..2, 000 feet, mo~~
'or less~' togE!ther with all.; necessary fixtures, and appu;':,tell~ces.
Construction shafl:be diligently, prosecuted to completion,
-2-
_.......~......_..~-'.ol
..,.,.__.~-,~_..,__.d._,_...;:r'
, . ':" II.
: ' < ~ '..;' ' -, f:;
t?"....m:{:::.::',t;.~:tii..~..1U<;,~...~.~/"~
'!1lIi'",:;o.,~---"'____'._'_"'-"~'.4~"''''''''''''''''""'wl,,,,,,..........
..___.....~~P-
tl>o> .~
. .~". ~ .-
L_._~1lt~h;>>"'..""'im~-<<<'1~ ~ ~_"""",,",M. to..
r'" i 2Z?J'b23Vf
I I
p
iv'
~'. . 'i '
32
-~" ., ''\':'
1
subject to delays covered herein below, and delays. co~s~~ted to by
Lessor., Any I?:z::ev:.e~;t:..iqn, ,'i'ielay, or ~toppage, d.u~, to "st.r;i~es.,
w~lkouta,.-!al?o:t:qispute;s, acts of God, inability,to Clbtai.n,lab~r
.. '.... ..'. '" . I .' \
or matez;ials I orr~as,~nable s~sti tutes. thez:e,~o.x: ~ g.Clve~nmla~ta;:
x:estrictioqs~ governmental regu~ations, goyernInenta:J.,co~tr9ts,
enemy orho$~ile ,governmental action, ci~il commotion,. fire or
....'-. "".- ~ d_.,..l. . - f. . '. ". .' ~ ',J _,. f "~ .. .;t;..~';.
o:ther, cl?-,,~al ~~ '" .,~d.:;9~e:r:: c~us~:;;, bey'on? ,> t;h~ ,,~eas,o~fbl~ 9~~ rf?l" of
the :f..essElf7'r;!l1~ll:~xcul:le performance by it for a period equal to
any such pr~ve~~to~~((:~ela.Y or ~toppa~~~, "', ",,: ,...,':c." ',':
,'" '.;, ~," ,.i' ,; ,(p~:~, J:~ ,t,h~ ,co~st-ructi~~,~~"sai,~ !,)ui~~il1~(": Le~~ee
allall, C9l!lpl,y f,~i~l1,,!itH~ ill.Pp,H-c:al?le, F~deral.' s.t~t~ I ~ountYf ~p.d i,
,M~icipal, lawlL Md,),fP.l~s.J ~np reg]J.la;tio~13 o~r the, d~par~m,en,~~ and
loureaus hay-ing jur,i$d~ct~o~ there9f. ,~~saor:: <:tgree$ '; t,h~J Lessee,
shall 1;le ,~~D\i,!:te~:.1:9~ connE\!c~with. t,11e existing sewer ~ ~at,~F.J !'l?-d
elJi!ctr+c,\ line,S. already on t;he prope~ty of the Less~r withp,ut
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
charge~
'..! ",
I ~.' ; .. ~ ~....,!
.1. ' ,
17
',' "''", '-: (c};:;;~t ,i$A9reed petw~e~, Less?r, arl;d, Le~seel,t,~a~ th
bU~ldi~g_,tob~:2pn~f~~c~e9 by Lessee on the lan~ descr~be~ ~erein
shall, remainJt~e:;p'er~o~al;p'ropertr of Lessee and ~hall n~t become
a fi,x.1fur~. '" ""::'.
18'
19
20
21
22
23
",.F ';' ~~ .:. ~'!
" --\.,'.
.;...~..;.~,-:--." ~."~~ -....:..~...
',,~,!o;..,,~ITLE, A,ND SUBORDINATIONl .:Lessor rep,res~~t~ ,an,d
wa;r;:raqts:,tp,C!<.t:,:J~"P.o,.l~~.tgl;e to. said re~l pro.perty and }~a.s.
,i!l,lthori ty, t:q, e,p;t~~,iqto ,1;Q~ ,lease herein. ': Lessee desires to
obtain a titl~ insurapce :polici:' ;with respect 1::.9,1t8: ;t.e~s~ho1d
esta,te. Ti,t.le.;to Lessee's leasehoJ,d estate shall be deliver~d to.
24
25
26
it. frtjle, and ,cleaJ:' "except.tng for covenants f <?ondit;,oDs,
res.triqt<.ton~,'.le<!,semf!ll;1,tseJ;'1ghts and r~ghtt:: Of way o~ reco~d, ,}ll
,Of : ,Which (shall be. sttbject;to ,the, app'r;ov~li?f ,Les,see wi.thip
fourteen (14);. ~ays 4fter receipt o.f a pre+!.11:t!11.;\,fY U tl~ "re~Qrt
on the abo~e-descri~~,c;l,prerni,ses., Title ,shal1,~lso be"sq~j~ct "
tOCUl;'rent,pa;i,d, rea;l...property taxes. Tit~e ,ins1;1rance, if obtalne
27
28
29
30
31
by Lessee ,iJh~ll. :pe 3~~,Jtf!l expense.
73-
'[ ~
" ~. '
~....----,.". ~ '-.......-
..-_.>....,.~....._~
ll~::;.;.:~"-'-.-....;,.:;..,~,.;:-,...~_.;.~~...-',';:,~"-,,.....,'%,~__
."""~.....~#--
?2Pr Vb2?fJ
. ~ ,)'""ll~
~~!
..~ E
'.
~,
/1.
t'
.'J'
fl'
. '>~"- ..... '.'
1 6. ,T,A.XESt ,; Lessee shall', in addition to all <if the sum
2 a9reed ,to ,be, paid ',by', it; under 'this lease " pay all' ':teal" and'
3 personal, prQperty~ taxes that shall i dur'ing thetenri~ of this "'lease,
4 be asseSf5ep.aqalnst:the demised' premlst'ls ~ ,: 'Lessor' and, 'Lessee" shal
" j, ~.~ . r.:.... ! .:::\:-,.
5 each initiate pro-eeedings :with the ASi3essor'6'f~thEF;eoikty;!bf
6 Alc'!Utleda to, seg:re9ate:; the: demised premises fr6iu the area -kn6wn as
7 the;DubHnrSquau,tso thi\t':a separatEF~tax'"flUI':'will'.Ib~ 'received
8
for tbe~demhed prem~sa~~ ':','
;,~.~~,. ,.t ~,'~_:I:.J,)~ ',. ::'.~~r{;h(1$\.'
9
'-' '..' ""., Hn PARK:tNG;:~P"Itis "ui'lderst6od arid' aqreed"\that the
Q~1in Squ~r61 ::'Sl1opp1ng~Centei:',,;ls 'presently' paved, 'liqht:ed'and
marked with,,:an,..adequateFparlHng area. ,'That '.said2'parking'flifea::Hi'
operawl;l"al\d,-'maintai~ed ;'by 'Lessor and 'cis : for ,'ehcit' parking -'.sf ~..: '.
lii.uto,l'llob.i,l,es- rO.f.-ipa.trons, -Q,f,\the ,Dublin Square 'ShOPPing Centei:"i; '~in- ~ ;
cl,u.diQq, Lelil,$.tte .~(,: ~a.$e~',$';patronsi s11401.1 have 'the ',:tigh.e,."to'Jus~ ''the
parking "area ,of, the tDublin :.:Square Shopping, Center ' for; Customer C>>:,
parki,n,g ;~il}: adq.i't~on,tCll'rtihe' port'ioo: ' ti'f the DUbHn'SquareShopping
Cente.t:' that is.yleaaed.J3y. ii,tnherein'. ; 'Leissea,llif agents i"employe~is
and office.t:'s ::Shall:'.uot."use ,the DUblin Square Sh6pp:!.ri<j Centerhe":
except in:-the,even t,) tthat:: such an area may ':be' ee't" aside" fbr:i:Hich
PUrpose by,.; r.essor,.1,,:~ 'NQ:kR;ia~"-:i'B--tll4e-J.-ea.se:"B.a.a-li1-':5!'e:S-trie4!:_'&.i . '.:> ),,~
p..oJU.b.U:;... .t.e"Q'e_'.f"~m-J.mPG-il4R~-aaj"_',fea€e;..EH!'_ e't~e-l'':''.aafiie~''7:'''':bl.e.a.u~
'., Iv\,{
..b~g_:W~J....im.iQ.tJ.QR_,,"'l;.J,EJ;..:;e..eetiElfl-e-€':"64.~G_-a..FEI'WUi_-t.ae_~.ilt4:eA '.',
o.f_ .t..be;...Q.u.b.liJ),:..Sq-lia-ire-~fteflP'ing_ €eft'te-ir.:...;t,ea.se4:.. ~:"'i4t~ (' .,
Operatihg and'maintenance costs for any and all
existing parking'arEl~SI"'as:of ,the dat~ of the exe'c'Ution of 4:hls
leas~' -shall be:'J;lorne.iby:: Lessor,:, and shall includ~' without ,<:,'. ".,C",
l,i,lllitlltion.' lahar ,..in$lu::ance ,;,' taxes, materials ,:' supplies-ana:' .all
othE;!,r' <<;:ost~, of Ope.ra.tinq and j repairing, lightinq',cleaning,i L t, .'
pain:ting',.. J;'emov;ing, or' 'rubbish" or- 'debris, policing_ and- inspe'c'ting.'
8. '~,:,:. Lessor, shall not. use, or permit', Or allow any
10
11
12
13
14
15
16
17
18
19
20
ill
- .
22
23
34
~5
~6
',7
8
9
o
'oJ,
1
other person to ,use;, any portion,of the'Dublin:Square Shopping'"
,Center On which the demised premises are a part, for,a banJL "
-4-
I Z3Dq}31
~',
i.
~,
t
I
v.
"'" "--"-~-'~'r'
~~~"::;~;".';~;;.,;,;:,:;...'<...~~~",,-,_..~~
._.-......._-,--..~-.....-.....~....._.....,.. ~~ -~:;'1 'f
,- ~~.
.~_.-
_II ~.~~..'il'~!llilWll!!!!!i!!\i!P&!'ll.IUrlli IT
< ~" 1
d,
f'
I
'.~~
24
25
26
27
28
29
30
31
32
1
2
:3
r 2911>?3t1
J
l
(tL.Ll
t:t~r:~:' ASSIGNMENT' AND'SUBLE'l'TING: ,Lessee 'shall, have ; the
right';1:b"(a19sfgn\, !tnoftqage orhYPbthecate th1s' lease;. 'or any in-
teres't,tfn:this'!~l'easej':or permit the 'use :of! the 'prentises'by"any
4
person 'or; ~rllllons other 'than1.essee ~ or ',sublet the <premises. or
or its assigns
pari ;'the'te'of I'tprovided'1:.hat, in the 'event JLesNe!should ,cea-s_ to .
5
6
c'ond'uct'1:lie"'ope'2tad,ons of"abank', on 'the :delilignated ';premilll'es;- " ':, c
Lessor ';'shallhavetlhe;opt!on :;"1:;0 purchase Lessee '. bUi,'lding in
accordance' with.lPa:raljraphlO "pertaining. to 9Pt:icm- ;'~!purchase
building:'" In-th~i e~nt Lessor edoes l.'lot;,elect'to exexcise its.
option to purCha:s.j<f..essee' e 'buildincJ'j';: and ',Lessee isunabllliL.tO( ,
ass!9n r~r "'iJUbl4kitf<said ~premil!lel\1l ,on, reaaonable ,terms, ,for ~the :purpo
of '8. barik~ ,Le&i$etFlIIii1:'IlIUlIiqll or, ' sUblet..',all-;-l or. any, paxt:of,Said
premisEis I'providing' Such-assignment., or':-sUblettinq ~~J.liJ:'to, a;busines
that-does'not: competewith'can · existing 'busine8s',in: 8ald:~DUblin' ,
squarei"'Sho~pln9" Cerif:et'G' "NO part '-Of the "lEias.a~ promisesr shall'.' bG '
Sublet;; for....a 'put:~se"'whlch is : unlawful', :aanqexous, noxious or
Offensive. Any,,\suCI'i':assigrimeflt. or l!Iublettinq".hal1 :not'bei'for,
the conduct'of A'business that would directly compete'with',that 0
another"tenant in~,the'DUblin Square',Shoppinq,;Center....' NO'-llIuch ,;,',
asslgnniant10r 'sUblettirtg' shall 'operate to:;'re,Heve. thea..assiqninq
party of any"obliqa.tion.ot",liability arising, under the terms of
this lease;'\Ullel.il~;,t.~~ other party h~reto ehaU specifica.J.1Ydll.gree
in 'writing' that:' SUCh,' p'X'bposed 'assignment shall~ so release,. the
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
aSsiqninlj': or subletting party.
10. OPTION 'TO: PURCHASE BUILDING~:" In' the event Leuee
should cEulse :'-to' C'Ohduot 1:he operations bf a'.bl'Ulk, on the-" demised
premiSes, Lessee Ishall" give wdttennotice ~o Lessor., Lei3ao:r,.
w!-thin thifty;i(30):Hdayef' from 'tne1date of receipt of,; such wr.1tten
noti'cEi~frOin' LeisllIe.,'/ shan.- bave. the option. 'to: purch.sethe' buildin
'atLessee'l'S 'Unam.orthedi CO$ts~:" In' the event Lessor,shou-ld <1'.\, '
purchase"the'bU1la.iriq~ "this 'lease"shal1:' terminate. : In: the ;event .-
Lessor'reject2l';'sa'i'dJ ,op'tfon to purohase . this lease shall 'continue
ws-
'Ii
_. '..-'-~~'.~"~"'-"""'.'~lMi#~,'
.......
>'i!:
:!' t'l
! ;" yo
;: I
32
-S"UII jJ9'.rlloG ~J.Ui
:1
2~~q
1
2
in, full; force; anc4.,!;lf't:ect 1 :'and Lessee may lllss.i,gn;or I Sl1Ql,'I;d,n
accordanoe wi t.ll" P~u.agral?ll 9 herein, pertaining :. to as!!li9'UIAent anc;t.
l$ubletting; c:;L~UI.Oi abaJ,l further have tb~ h option to purchase
Lessee I s buildingt~t Lessee ',$ unamortbed.,go~t ,11.} ttlle),eVlI'nt;,;,of
de,truction i,or. condemnation ,;~s iprovideci.,in p.aJ;'ag~apQ.lb14\ and ,13 ,..,.
Sbouli:lf.LesI54!\e';~11ilQ~rto:'terminate this lease under the provisions
of said paragraphs..,;" J;J:;l t.he event Lessoridoet;! .not eleot:tQ;. " "
exercise, itfJ_ opt.ion . to '~purchase under said, paragraph.l!!, L~ssee, ",:
shall~,have ',the;lrigh1:;.i,to, sell or .remOVe !(laid buUding. "In Quqh,_
event,df"Lessee7d98$ ;,not sell or ~emOYe lil.aici !:>ui:j.ding, then ~t,..1
shall become t.he p;t;Oper~y ;,of Lessor;:.EU;Ld, Leli'lsor agrees t:.O'.~nd~i
and. saye".Lessee, h$rmless froI\! and against, any,.1and, a,1,J,. cla11l.ls,
arising! from,-..Lelitseets:'(aiJ.,wre to, remove said p\:!iJ,qin~J::f:;9m said 1
by..any pet:'on 01;'G1;Q.-~y property ,:ilnd f~o!ll',and a9ainst',~U,90~~s,
exp~nses, and..Liap~J,i t:ies whicll may, })e h ingprred.. in Or ilLc;:onnecti
3
4
5
6
7
8
9
10
11
12
13
14
15
16
witn, any.;sUQ.~?'9J.dl'!1 Qtt:,p~oq~eqing broughtth~~eQn. ,.'
. .j.,.... .
17
"" _..,',:.,~ b~Y':;~!Jqhi.ll\leptionJ.l;>y dt.~er_p~rj;.Y"O~~4,bE'l:maqf,! by
w~ i tt.~m ,~p~~c~: t.r::9~: IO{l~f,p~r~y ,to,. the , otll~r, ,.on OJ;' be f9re, th~!~y
(30) ::days \11.f:.t.l,lI;' ;~e\.q~t~:;.;Qt~ the, mutual a9ree\'ltermi:natiQg,~gt,,1the
lea~!!,or, tl}~'lna~u;t:{il~l:"xR;I.~ai;j,on Qf the t:.e~llu)f the,leoj1lse~Qr the
r~Jlll\w~l ~:j.,~ ~~e Qpt;Q~ t.o :ri!;lne~I',i.s"exet:oised"l;>y Le/3see., :',:" "','
'. L',~'!rlhd;U~l;3:.*~I.jl;S,;'...~eSl':leeshall pay f9:z:;I;111.,wa1;e~'t- qas,
ijE'latH,e~ectrJ..j;:i~Y<,,~4 P9w~r"",l)icb,during" j:;,~e termot .tbh';'4.I:!lU~...
18
19
20.
21
22
23
24
25
llli;\y, be fu;:ni !1iIlledc to t Qr! ,u~ed, on i the demised, prel!lises, :
. ,
\.:,:,..\ 11 ,;,;. -:~ t ~:_; .
'. ,-,' l~.t,i,COl!-lPEtfijAT;J:ON'OF PREMISES: In the event of any
taking or damag-, Qtull:i.",or:.any part'Qfi,the:leased,premiEl'~ pr th~
!?ui:LQ.ing,,:.o~ r:mY,::~~rt@~lilst\ therein.""by r€las~m ,of any.exe;rQi.se,o:l; ',U
tl}e _PQw~i:': o!f,~~il\~J:!t. qom~;!.Jl' wh~th~r:py a condemnation ,pr0geE'l~iP9
Qr:,othe~i~,;;;o;:G@Y, transfer of all or any part of the leased
premises or the;)b!J~~d~1)gl!" Of ' any, intE,lrest therein ,mad~ t.tl avo~Q-
ance :"lP'f ; a,Il >'4il~et;:'9;ipl~s~1: the power < of ;, eminent clomain (lillJ.!oJ; tJ!./;1l.' fa e-
gg:j.nq .I;?€li~g'igeJ:'~~n,,, ,r,fe;-~ed, to, ~S '~apprgpd~tionU,.p~iol'dt~hQr
26
2,7
28,
29'
30
3];
-t;j,..
'to
. <....,.~-
-~- ---'[1\
p
i:
Z3~t>l~q
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
during i,t~~ ::~erm .her.~Qf , (or diU1Y"extensi.oll~oJ: 'renewal. :.,thElreof)l, the
l:ig,ht~f~d R-bl~.q~t;,iQns :.of ,Lessor -and Lessee .withrespect to~such
~ppr,()p'riat.A~nJ'AAal~.bea~ ;hereafter.,provi:ded. "'i .,.,Y.~c.':',.J,) ..r
r,::',;:J.;1{e,:,:r f.'i: t~ t;l).(a event o;Lany approprution:,ofra]:l'of,"tilie,
l,easedpr~:i.IlJ.es and building, this lease shall terminate as of the
date of sUC;:):ls.apPJ;'Opriat:i;o1l.. ,;.:...,'.... "C c,',' ~\l','n::' Ol ~ f-'","c";:t:
i:':'l':l:'l1:t~,:a c,iIn:'the"event of, ,an appro-p.riatianjofde-ss than. all 0
1;.4~.. J,,~as~d,;p..relll-k~e~:i, this ('+ease ,shall. ,,Continue in full 'forclOr and :l '
~ff~c:t;,.e}~,cep1;:;:,Jll!l ;.hereafter . provided ,in 'this 'section:.): .The d~ased
P..r~s~s"shal.Ll1e reduced.~by the port.ion. ,appropriateCl..,'~ 'The total
J,.e~~ rep,t~l' :~or, '$~: ,remainder of the;rte~ :immedlately 'prior: 'to
approp:r;;I.~t,;l.Pl\ 1\l1lallbe"i\bated in ,an amount which ,'beuJiLin:/,the '';
s.tuUe< ir~1t,i.o,,;to. ~uchj;otal leaserent.alas, the amount; 'of the :i.
entire,A\t{~..d'-r: ,inql,uq,ing :,oo}llpensa,tJ,oni,\damages'; ,and,dnteres'1:;,;,' if: >"
~y." .~4~1:f{i:~,:~1;~spe,ct t,o tne cs.ppropriation. '(inoludinglany "1 ,,'...
se~~.I:',~,q~j~~gliUS)il bea,rs ,to ,the, valUe: of the entir-e.:l>eased",
premi.~!3i,~ Jmd~(bp.ilcU,n9', immediately prior t.o' :the..app:ropriation,...,~'
If,-, t.A~, approp';::).8,tion' shall either (i) render' more ,than.., twilIitv~ ,
per ,Qen.t;.A. :2Q 9!l of, :the total gr,ound' floor area, of' ,thia:,buiJ:dinq ,,'
on ,tp.e, :J.eASed,,,premisesunava.ilable or UIitEmantable..-:or '(il) sub-
stan:tially.,-,impair "the, use of the leased premises by Lessee, then
in either such case, Lessee shall hav6!therighr to eleotto
termina~:' ttlls;'lease., Any such' election shall,: be made. by written'
not,ice"L~rom .x.e-ssee to. LeSSor on or before, thirty ,(30)"a.ays 'after
th~" date ,pf:J*e, appropriat:.!ou. ),'d'~ .." "
..".. , ",'''' , ,,",J,f\. this: le!"se is terminated pursuant to this section
Lessee sha;U be entitled to,the award,. for:, any improvements, to the
leas~d,! P~~uV.SElls-Jmadla. by, Lessee plus t.he, , award,;,for"the' "interest of.
Leslile~: ~1l~ thi$""lease. ,,' _ " '.,~, ' .. "
,. .:,) .+rk the event of, any, appropriatipnof 'less{; than. all
of the,le~sed;premises and if. this lease is not terminated pur-
suant to tp.i$ sect~on:; Lessee shall be. entitled to the_ award for
-7.-;-
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
v.
i'
;1
\
234- on1.-"">4
1
any,dmprovementsmade by Lessee ,to the partian of ,.tl)e' lease4
premi$esxappropriated plu!'f. the.,award' far, the/inteJ;:~,t::Qf Lesl!IEle. J
Lessee,'shall~:have, the right to, elect' to,ma15e any;,restQration of t ,e
:::::::::::::::::~.l~~:~d prem~~~:, ,~eQ~~S~ ~~t~t":e~b". ~e::v~re,:en: '~t.:"Qo~':Oa'p~ ~rt et4aJ
1..,)',: ,';.~,d l,13.'ldDES'rRUC'rION OF PREMISES I' ,In: .. ..... ...
destructionc;ofd;he said building during: the ,said.term; fro.m any~,
2
3
4
5
e
7
8
cause~ Lesse~ may.^at, its optian, repair"the li'lame",but.'sucp.,partia
destruction shalkili. no. wise annul or. void this:: lease~ i except,
that, Lessee shall:-be, entitled. to. a ,proportionat.e,.,de4uction' Of, ren
whiJ.e:, auchA-repairs 'are, beinq,made,; 5ucb proportionate deduction
9
10
11
12
to 1'>e based upbn' the extent to, which the, making of,; such. repairs
shall interfere. with{ the business carried~ on, by'; Lessee in the',' , '
said premises:., ;Lessee may,' at its option, make',su~h.repairs with n
a'reaaonable;. time,_,.but in 'no event mare.. than six (6) months" this
lease- continuing dn, full: force and effect and,. the ,rent ,tQ ,be';
proport~of1~1:t1l1y "rebated as afore!ilaid, in;, this, paragraph p~ovided.
In'~ thee;, event.., that ,Lessee does not so elect to, ma.:!te such repairs, I
which oannot'be'made in six (6) months or such,repairs canno~ be,
I
13
14
15
16
17
18
19
20
made under,:suph ,laws. and regulationlll,: this lease may be, t~~inate
at the: optiofr'of eit.her. party,.
',' ," t':,;' ;,.,,-::,In respect to any partial, destruction,~ which"Lessor s
obligated: to "repair or may, elect to repair under the, tepns,.of; thi
paragraph, ,the" provisions of Section 1932, Subdivision 2, and of
Section 1933, su.bdi vision' 4, of the Civil. Code of. the State:, of
21
22
23
24
25
26
California are,waived by Lessee.
,". J..i. '~''','
27
: ;':,:J.t;!<l.4.;;, FIRE', INSURANCE: Lessor agrees that,', thet proceeds
ofr any;~'fi:re':and: extended coverage insurance policy, ,on, \wpiOh, Legste
has insur:e,d' .said; premises, shall be payable to' ,Lessee" ,and Lessor
waives' .the ~rightto' claim, ,the proceeds of any porti,on"thereof
of any. such insurance policies.
28
29
30
31
32
15,. <LIABILITY INSURANCE:" This ..lea!3e ,is ,ma.pe~ ,upon: t:he
-8-
v.
'i~~ItI,_
I'
\'
,
"
1. express"condition that Lessor is to 'be free from all l'iability
2~G1J231
2,
and; claim" for, damages' by reason of any injury to any peraon or I
perpons, including Lessee, or property of any kind whatsoever and!
to whomsoever b~l..C)rt91t19, including Lessee, from ,any cause'.or I
causes, wpatsoev!,!r",wpile in, upon,' or in any way connected ,with
:5
4",
5
6,
the,said:.leased land, except the';sidewalks and/or;parking"area
adjacent" thereto,' during the term of, this "lease or any' extension.."
hereof.:o>>:2~tl.y('occupancy. hereunder, " Lessee hereby, covenanting and
aqreein9'~~ to indemnify, and save harmless Lessor from' all: liabili ty ,
10813 ",cost'i;;/U\d.;obl~gations on account of or arising out of 'any
7"
8
9.
10
11
such injurie~ or losses, however occurring.
_, .., '-: J..!-:: Lessee' further agrees to 'take out and keep in
force during,the life ,hereof at Lessee's:expensa public liability
12.
13
14
insurance, to' protect, against any liability to the publioinoident
to the use,of or, resulting from any accident occurring in or aboul
said premi$as, the',li.abilit:y Under such'insurance to be not 'less
than $ 2bO;000.00 - " , for' anyone person injU1"ed, or :? 200.000.00 C', :
i
for"any: one accident, or $~OO,ooo.oo for property damage. :'
I
These, poJ,.icies' shall insure the contingentliabili ty of Lessor, arid
!
Lessee, agrees i "if Lessee does not keep such insurarice in full' I .
force ;,arid "effect the Lessor may take out the necessary insurance I
and,pay,the premium and ' the repaying thereof shall be deemed to I
b~part'dof ,:the,rental: and payment as such on the next day upon
15
16
17
18
19
20
21
2Z
23
24,
which rent becomes due.
, ~l I, ! ~
25
, 1:', 1,6.. ,QUIET ENJOYMENT: ,The Lessee, upon the payment. of
26
the.rent,hereinreserved and upon the performance~of'all-t.he ,t.e,rm
of .this..,.leass, shall at all times ,during the lease "term arid durin
any ::extensh:m ; or renewal, tertil'peaceablyand' qufetly: en joy-; the .
leased,p:roperti1,with free access thereto withoutartY;'distur15ance
from:the Lessor ,or from any other person claiming through the
27
28
29
30
31
." ; \ ' :~ '-.. - ;: '. ~,
Lessor.
32
Lessee shall procure and, pay 'for alf"
", ~17. ,. LICENSES:
-9-
v.
2?>f41JZ3~
l,icenses and ,permits needed in .connection with the' 'operati~n of i
,qUSineli1f, : and ,shall keep'thi-'business 'open on 'ail 'regul.'ar; 'busiri~s
~days., ;",.', r,C'::
. 'r '-,' ",.' '~r' 'h
,~.Cl:,;,.i," ,,:,18,.: COMPLIANCE, WITH LAWS: The' Lessee""s'h~il,'at is'
sole:,expense~:, promp.tlycomply wi tit 'all presknt' ahd fut'u're"l~ws,
regulations''or biles, of any county;;' st'ate,' fed~rar, ~n~d' oh~:~'
governmental author.ity and any bure~u'and'departm~n~~thef~~f whi~l
may:be appl'icable to the leased property~' The Lessee~ shall 1i~ve
the;'right... after' written notice to'the 'Lesso'r to!'bbnt~st by"
, .. ,1." .\.._ _~.
appropriate~legal~proceedlngs,dlligently conducted'in good faith
the- validi t.ysbr' application of: any such: laiw', reguiation; 0:':: rule,
and:;.to~'delay;'comp1iance\,therewith pehding the'pros~cutiort<'of such
proceedings, '.,provided not civil or criminal liabiHty' woiild' Be; in.
curz:edbY;l,the Lessor and' no lien' or 'charge would :be imposed upon
~ I" { " . ~
or.\~atisfied:Lout;,6f :the leased property 'byre'asoif'of' such delay.
',." ',;,:19.[~:,'ATTORNEY"SFEES:' In 1he event' of "the biil1-girlg':bf
any 'action. ,by,;either party heretdas, \:it;fainst the 'otherhe'reori"br
hereunder, 'or by 'reason ',or toe breach oi"ariy~co';enant-:or;;oriditior
on1the .part:of, the other party', 'or arisingtnlt' of this lease," ther
and",in. that,. syent the par,ty'in whose 'favor final judgment shall b~
entered shall be: en'Ut1ed to have' and recover' 6Caii'dfrom' the othe
reasonable attorney fS' fees to' be fixed' by' the' coliri: wh'e're:i.n' such
judgment,- shal'lh:be entered.'
{, :
20.;NOTICE: i Any notice under thiS"leaseinust b~ in
writing aIld'must'"be' sent' by regist~red or certified mail to the
last address of the party to whom the,n<;>t~c~ is to b~ ,giyen, a~
:<, .;:;~;::~..sY:."')>:.(" ...::1 ~..,. " . , ., ..~:.,~<:"~. r'~;'i' '" ..1... -" '
des1gnated1:i>ynsuch party in writing ~ "The 'Lessor hereby designates
its address ' as: B_EA~K~LEYLAN.D, COMPANY.",,4550, San Pablo-Avenue,..
Oakland, California 94608. The Lessee hereby designates its
address as: --"P.O: Box 220, Pleasanton, California., -: ';'
2l. OPTION TO RENEW: Lessee is hereby granted an
option to renew this lease for a further period of twenty (20)
-lO-'
~
~I!ll !~ia~~j~;1
11 -'illl~.n ,,';i;-~"R"Y'''if-~h.i.~'''- ~~
,
2:'1~231
~. .... ~...t' f'.l :;..... 1 ~ '"1"_ ;_' ~.... -, ~ l' . . - y-. q, - .. ' -
:~ _ _,Y,~~'li.f!.t.l~eP~.i~n<!.; ~~_~r,~t~e ~xJ?i~atiOn 'Of ,the"oi'lginalterm at a
'2 ::;-e.!ltal of" QN~:.HUNDRED FIFTY-,THREE~P.q.,,~6/1Q9:_D<;>;LLA~ 0~$153. 56) pel
:,.. :)........ a:b:~'.'l:.y :::~.c.:;.~ :-.:~.I~,":.. > . -, ". J.~.;:". i'l' ~'.~.:.' t.i(' ::'-.... ,-, .........- ~i.'.,
~'r:moritlii "but. otlierwise, upon .tne same', terms. and"conditions -as herein
~':;J' :~.,,}~:~~~~~~c~~;~,:..,:.::,:,,;,< ";',3~,.-7 Co': ,<".":<",,:..i";:,,
;~ :~;c5lP.t:~,tP.~~ l~?iI'{~Pt'i j:h~, pp~ion 1:;o',fepew. '. ~rp:;t~ n.?t,~fe~'6f
,5 "lets~~~! s~;~~~~~oP: 1;~ ~re~~w,'~i~ 'l~a;~ ~ti~.l}~~ ~~':91.vi~~ ~~~ : LellSor
,,_ 9;) t'~ct '~;.) thG a{:~~c -:. :".'.;.;.. < ~ "(.;~.;,-~~:'.'; ;''':-;".
6 at least sixty ,(60) days prior to the expiration of this lease.
,22. ARBITRATION: In the event of any dispute between
Lessor and Lessee relative to the provisions of this agreement,
they shall e~ch select an arbitrator, the two arbitrators so
selected shall select a third arbitrator and the three arbitrator
"j.:;,"...;.J' . t' .' '\ '-'.~:':'"
so se~~cted~shall hear and~e~ermine the cont~oversy and their
'1' ~/. . ,r ..
dec'is1.on thereon shalt be final and binding upon both Lessor
.. ,'.J-rt;~/->~
and LesB~~~~bo s~all bear tn~ cost of sud~ arbitration equally
,:;<:",-<'~ ...........,'. , . . ,
,/~et\e~Fl1em. \ Upo~., notice by ,either party ~:hat: he desires to
have\a_:~~tter':~bitr~ted, t~e other party shaf'). within five (5)
days th~re)lfe~notifY th~ p:fty reque~ting such arbitration as
,~\~.... . " .. \ ,~\
to the \pam~~~~~n~ddrQS~...?,f :~is :arb.i~~i11S9,~. Thearbi,t:ration shal:
\ T'''' 'J" ,,' ' ,-- ,'-- ..'C-' .. --' \..
.. 'b~ ))eard' ari.d~'compietedwHhrn ~hrrty':(-30).:'aa1s fr~ t.he date the
/'..',;t.. \ ' '
:":first notice of request to arbitrate was depo;?ited in the United
\~~ ~ ~:::'
States maiJ:~,or personally delivered to, the :other party.
\~'s,. '" : r.
23~< SUCCESSORS AND ASSIGNS: This agreement shall bind
and inure to'the benefit of ,the succ~ssors, assigns, personal
t; '..' .' ~
representa,riv~~; heirs'an:d legatees of the respective parties.
IN WITNESS WHEREOF, the parties have h~reunto affixed
their signatures the l4th day of April, 1967.
... ..r. r.. I., ~- " ~ >' 'I"" " ,~'..
BERKELEY LAND COM1? ANY,
a corporation
1-; , :{.. jJ fj' -g-;/ /C/
By dC.r; {Aa. ''Ii" 4?, "l".,e::J'
I .' I //' c1 /' I' ~
\' " ' ":,./ / ...,
, ;., '/ I' "
BY: / " . < 1:/1/. 4h'{/
I '(I :1 '~[d""
LESSOR
"I1H'tc FIRST ijATIONAL BANK OF PLEAS1U\
a cprporat~on,
'."By..~~)(~.,.'i~ 1~~1k:,\\i"'~ ,
/' \\ .. \ ' presi~nt
By '( VI,,' '
Vice presidt9- & Cashiel,]
-ll-
:1
Ii
~~1fJ231
.--.,,,,.;;,...~,,,,~~(,,.. .
~.
That parcel of land in the Township of Pleasanton. County of Alameda,
st~te of California. de~cribed as follows:
Beginning at the point of intersection of the southeastern line of
the state Highway from Hayward to Liverr.lore with the southwes,tern '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 RecoJ:'ds; thence along the last named line south 210 15' east
25 feet'; tMnce north 680 45' east 25 feet to the actual poir.t of
co~~encement; thence south 210 15' east 90 feet; thence north 68~;M5'
east 90 feet; thence north 210 15' west 90 feet; thence so~th 680'45'
west go feet to the actual point of commencement.
.;50
""
'"
..
Iii
fl WI ~
{{fit'
Otfl '
i.:'~
"
. b
";J
,<
'.
c......~
~ \so
o
--\
"L':l::
~t~
...., 0 '\ "'-
't~i.:.. \~
....,\'l ""-
~'<\~'
~:..'-
OUTLINED IN RED COMPRISES ~~
LEASED BY LESSEE ~
~1-/r\
,..,;/0 \
_ ~~ r \
\'" ~-::-,.! \
~~ \
. ,c,--- '" I
A.!/~ ;S~~ <. 'I
,"..,. '" ~ .[3.?' ...... !;
~~; .t1l~ I",
~1J.jO ~ ~~
'C\ 1:>
~\ ~
"r, ,,(,.4,
~.I ,,}.:l {t
~",...
r1 /,
TH'lU r8 NOr"" aURVCV o,.,.P.1: LAN:), BUT 1'- co."'i":L..E:)FRO~ CAT)" EHOWN BV THi: PUBL.IC Ft.ECO~:)S
\"r.c:"'o;'~'" -,~., '-
~ r'll
~ . ~ ..... ... ...
I l:fll d. .''''
"EXHIBIT A"
, I
CITY OF DUBLIN
BUDGET CHANGE FORM
Z3QugY7
CHANGE FORM #
New Appropriations (City Council Approval Required):
Budget Transfers:
X From Unappropriated Reserves FUND 310
(If Other than General Fund, Fund No -
From New Revenues
From Budgeted Contingent Reserve (1080-799.000)
Within Same Department Activity
Between Departments (City Council Approval Required)
Other
Name:
Name: Public Facility Fee I Park Dedication $7,300,000
Fund - Dublin Historic Park - Land Acquisition
Account #:
Name:
Account #: 310-95556-750-010
Name: General Fund - Dublin Historic Park -
Land Acquisition $ 600,000
Account #:
Name:
Account#: 001-95556-750-010
Name:
Account #:
Name:
Account #:
Name:
Account #:
Name:
Account #:
Name:
Account #:
Account #:
ASD/Fin Mgr
Date:
7" ;)o/'t1?t
Signature
REASON FOR BUDGET CHANGE ENTRY:
At the City Council meeting on May 1, 2007, the City Council will consider approval of an agreement to
purchase property to be used for the Dublin Historic Park in accordance with the Master Plan, This funding
will accommodate the funding necessary to purchase the property,
Finance Note - Funding Sources Within Public Facility Fee / Park Dedication Fund (1) Residential Park Dedication Fees from project~
outside Eastern Dublin, (2) PFF Community Park Land; and Public Facility Fee Fund Community Park Improvement; Community
Park Buildings fees collected from residential & non-residential projects outside Eastern Dublin, (3) - Community Park Land Fees to
be generated from PFF as a result of dedication of Community Park Land in excess of amounts credited under the PFF Program
Credits pursuant to an agreement with the Lin Family for the Dublin Ranch Community Park dated March 15, 2005 - See, l(a)(ii).
City Manager:
Date: t/3 oj 6J
"
As approved at the City Council Meeting on: Date:
Mayor:
Date:
Signature
Posted By:
Date:
Signature
H:\CC.FORMSIFORM.budgel change,doc
Attachment # ~