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HomeMy WebLinkAboutItem 4.07 LandLeaseUSBank C~TY Cl[E~~ fIle # D&lQ[Q]cJl]~ AGIENDA STATIEMIE~T C~TV COUNC~l MIEIET~~G DATIE December 18, 2007 SUBJECT Second Amendment to Land Lease wIth US Bank NatIonal AssoclatlOn Report Prepared by Chnstopher L Foss Economic Development Director ATl' ACHMENTS RECOMMENDATION 4 1 Resolutlon approvmg Second Amendment to Land Lease Adopt the proposed resolutlOn and authonze Mayor to execute Agreement FrrNANCIAlL STATEMENT The Lease Amendment wl11 provIde the City wIth rental mcome for the lease term III the amount of $42,000 per year adjusted every 3 years for InflatIOn DESCRlPTION The CIty of Dublm acqUIred fee title m and to the real property commonly referred to as the Dublm Square Shoppmg Center locatcd at 11759 DublIn Boulevard In May 2007 from Berkeley Land Co , through a Purchase and Sale Agreement The CIty acqUIred the PremIses at the Dubhn Square Shoppmg Center for the proposed expanSIon of the eXIstmg Histone Park The CIty of Dublm and Berkeley Land Co, Inc, also entered mto an "AssIgnment and AssumptIOn of Leases" dated May 9, 2007, whereby the CIty of Dublm became Landlord under the Land Lease dated Apnl 14, 1967, and Lease Amendment dated May 9, 1990 The City of Dubhn was assIgned, transferred, and conveyed all nghts, tltle and mterests as Landlord under the Land Lease and Lease Amendment At thIS tIme, the CIty and US Bank NatIOnal ASSOCIatIon (tenant) desIre to amend the lease to alter certaIn proVIsions / terms and condItIOns hereInafter set forth The proposed lease amendment addresses Rent, Parkmg, and Access The annual rent WIll be $42,000 which commenced on November 1,2007 and WIll be subject to adjustment every three years, begmmng November 1,2010, to an amount equal to the lesser of the Consumer Pnce Indcx or seven percent (7%) RECOMMENDATION It IS Staffs recommendatIon that the City CouncIl adopt the proposed resolutIOn approvmg the Second Amendment to thc Land Lease With US Bank Natlonal ASSOCIatIon and authonze the Mayor to execute the Agreement --------------------------------------~_.~-_._--~---------~-------------------------------------------------- CO IPY 'I 0 li'fEM NO 4 1 ofJ( ~ Page 1 of \ G IChnslBerkcley LandlAgcnda Statement us Bank (ease Amendment November 62007 doc J 1 070<. RESOLUTION NO - 07 A RESOLUTION OF THE CITY COUNCIL OlF THE CITY OF DUBLIN APPROVING SECOND AMENDMENT TO lLAND LEASE BETWEEN CITY OF DUBLIN AND US BANKNATKONAlL ASSOCIATION WHEREAS, at the August 1,2006, meetmg of the Dublm CIty CouncIl, the Council adopted Resolution 149-06 approvmg General Plan Amendments and the Dublin VIllage Hlstonc Area SpeCific Plan, the Parks and Recreation Master Plan May 2006 Update (Resolution 150-06), and, the Dublin HIstonc Park Master Plan (Resolution 151-06), all of which are Incorporated herem by this reference, and WHIEREAS, the March 2004 Update to the Parks and RecreatIOn Master Plan antIcIpated a 53 acre parkland deficIt at bUIld out of the CIty and Identified the need to select and deSIgnate sites for new parks to allevIate the defiClt and the Dubhn Square Shoppmg Center was one of the deSIgnated sites, and WHEREAS, at the September 16, 2006 CIty CouncIl meetmg, the Dublm CIty CounCIl approved an amendment to the 2006-2011 CapItal hnprovement Program for the Dublm Histone Park AeqUlsItIon Project ThIs ProJect Includes and provldes for the aeqmsltlon of the Dubhn Square Shoppmg Center (APN 941-1560-007-01) so that It may be used for the park and Project, and WHEREAS, the CIty acqUlred fee title to APN 941-1560-007-001, the Dublm Square Shoppmg Center, on May 9, 2007, and all lease agreements thereto were aSSIgned to and accepted by the CIty, and WHEREAS, the eXlstmg lease WIth U S Bank National ASSOCIation expIred on October 31, 2007 and the CIty and U S Bank National ASSOCIation Wish to amend certam conditIons m the lease, mcludmg rent, access, and parkmg NOW, THEREFORE, BE IT RESOI. VIED that the CIty CounCIl ofthe City of DublIn does hereby approve the second amendment to the Land Lease agreement WIth U S Bank NatIOnal ASSOCiatIon, attached hereto as "ExhIbit 1" WIth the effectIve date of November 1, 2007 BE rr ]FURTH ER RESOL VIED that the Mayor IS authonzed to execute the second amendment PASSED, APPROVED AND ADOPTED thIS 18th day of December, 2007 by the followmg vote AYES Page 1 of 2 1=-t~#4 '1 'zffJ(V7 ~ A~tachmeU1lt 1 cJ1- o<~ NOES ABSENT ABSTAIN MAYOR ATTEST CITY CLERK 114401911023854 Page 2 of 2 2> tJ;f ~o( SECOND AMENDMENT TO LAND LEASE THIS SECOND .AMENDMENT TO LAND LEASE (the Amendment") IS made as of November , 2007, between the City of Dubhn ("Landlord' ) and US Bank NatIOnal Association, a natIOnal bankmg assocmtlOn, formerly known as Commumty FIrst NatIOnal Bank ("Tenant' ) A Pursuant to the LAND LEASE dated as of Apnl 14, 1967 attached hereto as ExhibIt A and mcorporated herem by reference, and amended May 9 1990 through the LE A..SE AMENDMENT attached hereto as ExhtbIt B, and Incorporated herem by reference (collectIvely, the "LEASE '), Tenant leases the real property sItuated rn the Dublrn Square ShoppIng Center, as more partIcularly descnbed III the Lease (the "PremIses) B The CIty of Dublm acqUIred fee tItle In and to the real property commonly referred to as the Dublm Square Shoppmg Center located at 11759 Dublm Boulevard, City of DublIn County of Alameda, State of Caltforma, rn May 2007 from Berkeley Land Co , through a Purchase and Sale Agreement Landlord and Berkeley Land Co, loc also entered mto an "ASSIgnment and AssumptIOn of Leases' dated May 9, 2007, whereby CIty of Dublm became Landlord under LAND LEASE dated Apnl 14 1967, and LEASE AMENDlvIENT dated May 9 1990, and CIty of Dublm was assIgned transferred and conveyed all nghts, tItle and mterests as Landlord under LAND LEASE and LEASE AMENDMENT C Landlord acqUIred the Premises and Dublm Square Shoppmg Center for d proposed proJect for expanSIon of the eXIstrng Hlstonc Park (the ProJect") D Landlord and Tenant deSIre to amend LEASE to alter certam provISIOns thereof on the terms and condItIOns heremafter set forth NOW, THEREFORE for valuable consIderatIOn, the receIpt and suffiCiency of whIch IS hereby acknowledged, Landlord and Tenant agree as follows Rent Commencmg on November I 2007, annual rent shall be Forty Two Thousand and 00/1 00 Dollars ($4200000) payable III advance III equal monthly Installments of Three Thousand FIve Hundred and 001100 Dollars ($3,50000) Thereafter rent shall be subject to adjustment every three years, begmrung November 1, 2010 to an amount equal to the lesser of (I) the change In the San FranCISCO - Oakland Consumer Pnce Inde},. For Urban Wage Earners and ClencaJ Workers as publIshed by the Uruted States Department of Labor - Bureau of Labor Stattstlcs August mdex (the total change m the CPI ill the three vear penod, for eAampJe from November 1, 2007 to November 1 2010) or (11) seven percent (7%) Should the Bureau cease to publIsh the San franCISCO - Oakland Consumer PrIce Index For Urban Wage Earners and ClerIcal Workers, the parties shall agree In \vntmg to a reasonable replacement mdex Exhibit 1 4'1* 2 Historic Park ProJect Landlord and Tenant acknowledge that Landlord plans to proceed WIth the Project Wlthm the Dubhn Square Shoppmg Center, and ImmedIately adjacent to the PremIses, and change the area's usage from a retaIl area to a park area Dunng the Project's constructIOn Landlord agrees to make reasonable efforts to notIfy the Tenant of all constructlOn actIvIty whIch may affect the Tenant's use of the Premises ThIS mcludes, but IS not lnmted to, provldmg Tenant With SIte plans and work schedules for the areas nnmedIately adjacent and affectmg the Premises 3 Parluoe SectIOn 7 of LEASE grants Tenant's patrons the recIprocal nght to use the parkmg area at the Dublm Square Shoppmg Center In addItIOn to the other tenants' patrons of the shoppIng center Landlord agrees to provide at all tImes dunng constructIOn of Project and thereafter dunng the term of LEASE adequate parkmg stalls for the shared use of Tenant and park patrons as reqUIred under City's Zomng Ordmance and/or parkmg reqUlrements for banks (1 space per 150 square fee of bUlldIllg space) In no event shall the number of parkmg ,;talls avmlable to Tenant s patrons durmg regular busmess hours be less than twenty (20) 4 Access Currently there are three dnveways provldmg access mto and out of the Dublm Square Shoppmg Center The ProJect v'llll ehmmate the dnveway from Donlon Way to the parlmg area Landlord agrees to mamtmn the two dnveways nearest Tenant 5 Authontv Landlord and Tenant represent and warrant that each has all the necessary approvals and authOrIty to enter mto tlus Amendment, and shall mdenuufy and hold each other harmless for any breach of thIS representatlOn and wdITanty 6 No EXIstlD!;! Defaults Landlord and Tenant represent and warrant that there are currently no defaults by eIther party under the Lease 7 :Notices Any notices to Landlord and/or Tenant under tills Lease must be m wntmg and must be hand-dehvered, sent by prepaId certIfied mall or by reputable overnIght couner addressed to the followmg all other notIce requests shall remam as stated herem Tenant US Bank NatIOnal ASSOClatlOll Corporate Real Estate 4480 Emerald Avenue Cmcmnatt, OhIo 45242 Attn Marsha Ward Lane, Vice PresIdent WIth a copy to US Bank, NatIOnal ASSOCIatIOn Attn Corporate Real Estate Counsel 800 Nlcollet Mall BC-MN-H2lR Second Amendment to Land Lease Page 2 of 4 5 ";fdot Mmneapohs, 1vfN 55402 Landlord City ofDubhn 100 CIVIC Plaza Dublm, Cahforma 94568 Attn RIchard Ambrose, CIty Manager With a copy to Meyers, Nave Rtback, SIlver and WIlson 555 12th Street, SUIte 1500 Oakland, Cahfomla 94607 Attn Eltzabeth H Silver Crty t\ttomey 8 Counterpart~ ThiS Amendment may be executed m any number of counterparts, each of which shall be an ongmal but such counterparts shall together constItute one and the same Instrument Faxed signatures shall be conSIdered ongmals 9 RatificatIOn All of the terms of the LEASE as amended hereby, are hereby ratIfied and confIrmed All other terms of LEASE remam bmdmg except where they contradIct thIS Second Amendment wmch shall prevail [Remamder of page mtentlOnally left blank Signature page follows] Second Amendment to Land Lease Page 3 of 4 o ~cJoZ Vv'HEREFORE Landlord and Tenant have executed tlus Amendment as of the date first above wntten LANDLORD By Pnnt Name T ltle TENANT r B, ~ ;V OOljlV Pnnt me J~ ~ TItle vI f' B)~OlADLLACJOJ ~ Pnnt Nam~o..fiL. L ~w~ TItle \J \0'rCS\~-\- Second Amendment to Land Lease Page 4 of4 J2 _1 D~.~~~ ~~ ~~.~(-~-- 1 ~c?02 1 LAND LEASE 2 TRIS LAND LEASE, executed in dupl~cate at 5 the LessOr and Lessee, w1thout regard to number or gender 6 IT IS AGREED between the parties hereto as follows 7 .. The Lessor hereby leases 1 DESCRIPTION OF PREMISES ~ l 8 to the Lessee the real property situated in the Dublin Square 9 Shopping Center, on Dublin Boulevard, Dublin, Alameda County, , - 10 California, 90 x 90 feet, more particUlarly described ~n 'Exhibit A~ 11 attached hereto and made a part hereof 12 2 TERM AND BENT The term shall be for twenty (20) \ , l~ years commencing on the first day of October, 1967, at a total , 14 rent or sum of 'l'WENTY-SIX THOUSAND THREI: HUNDRED TWENTY-THREE ana 15 20/100 DOLLARS (~26,323 20), lawful money of the United States, Ie - L ' which Bum shall be pa1d in installments as follows ONE HUNDRED ~7 Ie NINE and 68/100 DOLLARS ($109 68) on October 1, 1967, ONE HUNDRED NINE and 68/100 DOLLARS ($109 68) on the first day of each and every month thereafter un~il said totsl sum ofn~NTY-SIX THOUSAND 19 20 w, _ THREE HUNDRED TWENTY-THREE and 20/100 DOLLARS ($26,323 20) haa be n paid :n 22 23 3 CONDITIOI>1S This lease is subject to the following conditions 24 25 la) That Lessee receives the necessary permits authority and approval of all federal, state, county an 26 municipal agencies having ]urisd~ct~on for the construe 27 tion, eroct1on, maintenance and use of a commercial 28 build~ng on the real property described hereinabove 29 30 , , Cb) That the Comptroller of the Currency of the United States, or other bank supervisory authority grant a permit to relocate the Branch of Lessee, now 31 I, located at 11902 Dublin Boulevard, to the demised ... ;} ~ premises. -1- 'r .... -- Exhibit AI 29 ~o .:n 32 g n f') 1 {c} That Lessor is able to secure the r~lease from :2 I an existing deed of trust on the entire Dub11n Square Shopping Center, as to the portion of said Shopping 3 4 Canter to be leased by Lessee, so that ~esseels ~ea&e- 5 hold interest will be prior, eUper~or and paramount to the lien of any mortgage or deed of trust which may now - or hereafter affect Lessor's fee ~nterest 1h the leased e 7 8 property or any part thereof In the event Lessp.r, j.s 9 unable to obtain SU~1 a release, this lease shall be 10 null and void 11 If any of the forego~ng governmental ag9noie~ should prohibit, enjoin or panal~~e Lessee in the constructioD, ereotion, I maintenance, or use of said premises by Lessee, Lessee shall have I the option 1;0 treat ,t:.h~8 lease as null and vol-d In tne event I Lessor is unable to <obta.in the releasf;l. of the portion 0:1;" tQe pre- 12 1.3 14 15 16 17 mi~es known as the Dubl~n Square Shopping Center, descr1bed hereinabove, to be leased by Lesseel ~rom the eK1sting De~d Of Trust on said premises so that Lessee's leasehold inte~est as contained herein shall be prior, superior and paramount tQ said 18 19 20 deed of trust, thia lease shall be null and void Lessee shall 21 22 give not~ce in writing to Lessor of any such election unde~ this paragraph'within thirty (3Q) days of the date that Le~see receives knowledge of the failure of any of the conditions contained here! Lessor agrees to give notice to LeSSee in writ1ng within ~ixty C 60) days from the date of the execution of this lease al5 tG whether or not the holder of said deed of ~ruBt will $ubord~nate 23 24 25 26 27 to Lessee's ~ntereBt as contained here~n 28 4 CONSTRUCTION BY LESSEE Cal Lessee shall at h~~ sole cost and expense, con struct ~n the demised premisea. a bank building of-l,OOO feet mo a or less, together with all necGS"sary fixtures, and appurtenances Construction shall be diligently prosecuted to completion, -2- ~ ----......l'-"W --L-. ~- -I I 1IE1~..~... .r~...~_...:...~_ ,... .. ~~ ~~~... - --~- ~..._ ::h.L~~~ 31 32 n o 1~~ I ' I 1 subJect to delays covered here~n belo~ and delays consented to by 2 Lessor Any prevention, delay, or stoppage due to,str~kes, 3 walkouts, labor Q~sputes, acts of God inab~lity to obtain labor 4 or mater~a16, Or reasonable substitutes ther~for~ governmental 5 restr~otioQs, governmental regulations, governmental contro!s, 6 enemy or_hostils_governmental act~on. c~vil commotion, fire or 7 other casualty, andjother causes beyon~ the reasonable control of 8 the Lessee, shall excuse perfonlance by it for a period equal to 9 any such prevention" delay or stDppa~e. 10 '- 11 (b~ In tpe construct~on pf saiq bUilding, Lessee shall comply, w~th ~~l~ap~licable Federal, State, County, and Mun1cipal lawB Bnd~~~le9 and reg~lat~ons of the departments and 12 13 bureaus havll1g Jurisd.i.ction thereof Lessor agrees that Lessee 14 shall be pe~tte~ ~Q connect w~th the existing sewer, water, and electric linea alrea4y on the property of the Lessor without 15 16 charge 1.7 {G} It ~s agreed between Lessor And Lessee, that th build~ng to b~ oonBtructe~ by Lessee on the land described here1n shall remain t?B personal property of Lessee and shall not became a fixture 18 19 20 : +' 21 5.... TITLE ~D SUBORDINATION Lessor represents and 22 W'U;r.~tB that 1'1::. hq,l~dB t~t1e to sa1d real property ana _has 23 24 25 author1ty to aFter into the lease herein Lessee desires to obtain a title insurance policy with respect ~o 1tS leasehold estate T1tle to Lessee's leasehold estate shall he delivered to 26 ~t free and clear, excep~ing for covenantsf cond1tioos, restrictions'jeasementa, rights and rights of way of re~~~c all 27 2a of which shall be sUbJect to the approval of Lessee within fourteen (14) days after rece~pt of a preliminary title report 29 30 on the above-described. prelnisea Title shall also be subject to cn~rent paid real property taxes by Lessee, shall be at ita axpensa Title insurance, if obtaine -~- ... .... ___....to...... ~,..,. ~Jj. 10 '(f n ~ t 1 6 ~l Les6ae shall, in add~tion to all of the 2 agxeed to P6 pa~d by ~t under th~s lease, pay all real ahd J pex$onal property taxes that shall, dur~ng the term of this lease, 4 be a88esse~ against the demised premi~~s Lessor ahd LeSSee ahal 5 each initddte pro~e~dings w~th th~ Assessor of the COUnty'o! e Alameda to segxegate the demised premises frOm the area known as 7 the D~lin,Sguare,~Bo that a separate tax bill will be r~ceiVed a for eha dem1sed prem~ses~ -....1 _... 9 71 ,1 PARKLfOG AREA It is undar~t~oB ahd aqreed'that the 10 DUbl~ Square-Shopping Center is p~esently paved, lighted and 11 ma~ked with an ~dequatetParking area That said parkingfatea ii operat~d and ~aLntained by Lessor and ~s for Ene parking 6ft auto,no.bil,el;i of ipat.rons o.f tha Dublin Square Shopping Center~ .10- 12 13 14 cludiQg LeS;~~e ~ , ~SSlee ',$ patrons shall have the rl.gh'6 to 'Uae 'the parkJ,ng a.rea .01; the ,Dubl~n .square Sbopp~n9 Center for custonler C l par~ing in ad9i~ion tocthe porticn bf the Dublin Square ShoPP~g 15 Ie 17 Center that is ,leased.by .1. t herel.n Lassee IS agents I' employees 18 and off~cers .shall .not, use the Dublin SqUare ShOpping Centel.'~ eJecept in tho event that. auah an area may be set al'l~de fbr such purpose by Lessor.l. .NG!ib,i419-:;UI.--th'}'6--l.~Be-6J:ia.l-:i._'Xe'5'tr4.'Ei'l!._&2" '_,,~ pJ:"O~.t,Q.s'see-..f'.J:OIll.-..t.RIpQBJ. ;a",-aJl.3'-,feflee-/H"-e-t~e~-~-E:l!",leJi'""I_,iR6'a.ue.~ 1),,\ .iRq-.w~..l~R-;i;,1le_il'eGUeR-~_44'JB{l_a~e~d_4:~~~~eFl. oi_~he-Dubl~S~~~-Sfte~ag-een~~_~~e6QQ_by_~~ Operating and ma~ntenance casts for any ana all ex~stLng parking are~81 as of the date of the eXecut~on of this leal'll;! shall -be bornelby Lessor and shall inolude without .. 19 20 21 22 33 24 ~ '8 7 1~~~t~t19nr lahor,~inBhrance, taxea, materials, 6upplie~ ana ~ll 8 9 OUler ~ost~ of operatLng and repa~rlng, lighting, Cleaning, pa~nt2Dg, removing of rubbish or debris, policing and ~spect1ng o B USE Lessor shall not Use, or permit, Or allow any 1 ~ otber person to Use any port1on,of the Dublin Square ShOpping Center on wh~ch the demised premises are a part, for a hanX -4- f --- -- ~...............~ --..I _ ~____~ r __~___ ~- --.........-.....--.........."+-"-0'- ~ .I:lIio.li..ll._ -....'~~ ~~ -~- ...-.-,."...,,-......... ~-~oIIII'MM~.._ 30 31 32 }) ~J-~ r I I n () 1 _..L ""9 ASSIGNMENT AND SUBLETTING ~eaeee Shall have the 2 right ~o 4esi9tl, mOrtgage or hypbthecate ~hi8 lease, or any in~ 3 tere8~'in this lesse, or permit the use of the premises by any person or'parBons other than Lessee, or sublet the <premisea or any or ~tB assJ.gns part thereof; pJ:o\>'ided <that in the E1vent 'Lessee/should -eeasa. to Conduct 1:.h"'e ope-l.'at!ons of a bank on thE! dl1lsignatad premiassj Lessor shall ~ave ~he option ~ purchase Lessee's building in acoordanCe wlt~rparagraph 10 pertaining to Qptian po purchaSe 4: 5 6 7 8 9 building_ In the even~ Lessor does not elect to eXe~cise tte option to puroh&ae Leases's bUilding, and Le8aee is unable to assign or'sUbleo-tl-said premiseo '"'On reasonable terms for the. purpo of a bank, Lessee ~1 assiqn or Sublet 811,'0% any p~t*of said premises, providing such assignment or sublQtt!nq i8~to a bUBines that-does not cbmpete wlth'&n existing business in said Dublin SquarO'-Shopplnq Center ~ No part -of toe loGaBGla~ prollliselll shall be suble~ for~a'purpose~Which Is unlawfuL, ~angerous noxious or 10 II 12 13 14 15 16 17 offensive AnY~8uCh assignment or ~ubletting shnll not be'for 18 the conduct of a bbuihe.lJS that would direC!tly compete wlt:h that 0 another tenant. in ~ the bUblin SqUl'lrG Shopping Cen ter ~ No~ such a881gnmentrD~ aUDl~tt1ng .ball operata to relie~ the assigning party of any obligation Dr liability arising under the terms of this 1ea8e~unle8s the other party hereto shall 8peci~ically agree in writing that BUbh proposed assignment shall so release the assiqninq Or Subletting party 10.. '()PT10N 'l'O l'URCHASB BUlLDINGt In the event Lessee 19 20 21 22 23 24 25 26 27 should cease~t~ Cbnduct ~he Opcratio~B of a bank on ~ demised 28 premises, Lessea shall qive written no~ice to Lessor. LeSsor, 29 wi~in thirty (30) J-daye from the date of receipt of such wr1tt.&n notice frOM'Lesm~e, shall havQ the option to purchase the buildin at Lessee ''$ Unamortized. costa In the eveht Les60r should.. purchase-~he builaing, this lease shall termi~ate In the 1Elvent Lessor reject~-Bbid option to purchase, this lease shall COntinue -5- .,. --...... .-..,........'^' ~ I 1 ~1l.91!. 'l. J1 32 ') ~~ f 1 in full force and effect, and Leasee may aS91gn or sublet in 2 accordance with Paragraph 9 herein pertaining to aBsignmen~ and ;) sUbletting Le~sor shall further bave the option to purchase 4 Lessee's building~4t Lessee's unamort~~eq cost in the event of 5 destruction Or condemnat1on as prOvided in Paragraph~ 13 and 13, a should Lessee eleot to terminate this lease under the prOVisions 7 of aS1d paragraphs. In the event Lesaor\doea not elect ~o a exerC1se its_option to purchase under said paragraphs, LeSsee 9 shall have the right to sell or remove said building In such 10 event, if Leasee does not s6\1 or remove ea2d building, then it 11 shall become the property of Lessorf and Lessor agrees to 1ndemnif and saye Leasee harmless from and against any and all claims 12 13 arising from Lessee's ~a11ure to remove Baid buildihg from said 1 by any porson or,to any property, ~nd from and against all costs, expenses, and liabilities which may be incurred in or in Qonnecti 14 15 16 wit4 any such claim oftproceed1og brougbttberaon ~y such ~lectio~ by either par~y e~all be made by written no~ioe ~rom ana party to the other, on or before thirty (30) days after ~he,date Of the mutual agreed termination pf the lease Or t4~ natura~~~xp~ration qf the cerm of the lease or the renewal if tha QPt10n tQ renew is exerc1sed by Lesaee 17 18 1~ 20 21 22 ~l+ 'UT~LITIES~ Lessee shall pay for all water, gas, heat, electri~ity and po~~r Whic~, during the term of thia lease, 23 24 2:5 mAy be furDl~had to or used on the demised premises 12 COUDEMNATION OF PREMISES In the event of any 26 taking or damage of all or any part of the leased prsmiaea or the 27 builQing, o~ any interest therS1n, by reason of any eKero~ae of the power or eminent domain, whether by a condemnation proceeding or otherwise, 0:;' ~ny transfer of all or any part of the leased premises or the bu~lding7 or any interest therein, ~de tn avoid. ance of an e~eroi8e~of the power of em1nent domain {all of ~he fa e- goioi bein9JQereafte~ referred to as 'appropriation") p~ior'to ~r 2a 29 30 -6- 'r -~ ~ 32 -. I J;) ~c2.c2 1 QUring tne term hereo~ (or any extension or renewal thereof I , the 2 r~9hts an~ obligations or Lessor and ~ssee with respect to such :3 4FprOFr.lation Bhall :be aO.....,.,iilftelO FrG"{rI~r1. 4 -In the event of any appropri&tion of all of the ~ leased premises and bu~lding, this lease shall terminate as of t 6 date of sucq appropriatio~ 7 In the event Of an appropriation of lass than all of 8 the leased premi~es, this lease shall continu~ in fu~l ferce and 9 effect eXcept as hereafter provided in this section The 1~a8ed 10 premises shall be reduced by the por~ion appropriated The total 11 leas-a rental fQr the remainder of the term immediately p~1or to a.ppropx:iatioTl shal.:j. be \.bated in an amount which bears. in ,the 12 13 same ratio to ~uch total lease rental ~s the amount of the I 14 15 entire award, includ,ing c.ompensation, damages( and interest, if any, made wit~ respect to the apprOpriation (including any severance ~ages), bealS to the value of the entire l~ased 16 17 prem1saa and building ~mmediately prior to ~e appropriation _ If,tqe appropri&tion shall either (1) render more than t~enty per cent, l~~) of the total ground floor area of tha building on the le~aed premises unavailable or untenantable, or (i1) sub- stantially ~mpair the use of the leased premises by Lessee, then 1n either such case Lessee shall have the right to eleot to terminate this lease Any such election shall be made by written nottce from Leesee to Lessor on or before thirty (301 days after the date pf the appropriation If this lease is terminated pursuant to this seetio 18 19 20 21 22 23 24 25 26 27 28 Lessee shall be ent~tled to the award for any improvements to ~he I I leased premises made ~y Lessee plus the award fbr the,intereat Of_I I I J 29 Lasaae in thi~_leaee 30 31 in the event of any appropriation of leas than all of the leased premises and if this lease is not terminated pur- Buant to this section, Lessee shall be entitled to the award for -7- \' 1 /'1 ~02F any improvements made by Lessee to the port1on of tbe leased j 1 j I Lessee ahall have the right to elect to ma~e any restoration of t~e remainder of the leased premises, necessitated by reason of the 2 premi30a appropr1sted plua the award for the interest of Lessee ;) 4 :5 approprio:Hon 6 13 DES~RUC~ION OF PREMISES 1 In the event of a partie 7 destruction of the said bui1dinq during the said term, from any 8 cause Lessee may at its opt1on repair ~le same, but sllch partia 9 destruction shall in no W1se annul or void this lea8o, except 10 that Laasee shall be ent1tled to a proportionate deduction of ren 11 while such~repairs are beinq mude, such proportionate deduction to be based upon the extent to which the making of such repairs 12 13 shal~ interfere with the business carried on by Le~see ~n the 14 15 sa1.d premis"'s Les8ee may, at its option, make euch repairs with n a reanonabla time, but in no event more than a~x (6) months, this 16 lease continuing in full force and eff~ct and the rent to be, proportAonately rebated as aforesaid in this paragraph pro~iaed In the event that Lessee does not so elect to ma~e such repairs 17 lB 19 wh.J.-ch cannot be made in six (6) montns or such repairs cannot be made und@r such laws and rogulations, this lease may be terminaLed 20 21 22 at the option of either party In respect to any partial destruction which Lessor E obligated to xepair or may elect to repair under ~he terms of thi 23 24 paragraph, the provi$ions of Section 1932, Subd1vislon 2, and of 25 Section 1933, Subdivision 4 of the Civil Code of the State of 26 California are wa1ved by Lessee 27 I ! f of any fire and extended coverage insurance policy, on which Less,e I has insured said premises, ~hall be payable to Lesaee, and Lessorl I I rrhls lea$e is made upon the I , 14 Lessor agrees that th~ proceeds F'~RE INSURANCE 28 29 30 waives the right to cla~m the p~oceeds o~ any portion thereof 31 of any 8uch insurance policies 32 15 ~IA5ILITY INSURANCE -8- \' ~~^YO~_'-~,~~-r:'~':::::::~8~~~~ 1 2 /5 r;f;lf- , ( I ! persons, including Lessee, or property of any kind whatsoever and! I I l ! , ') express condition that Leasor 19 to be free from all liability and claim for damag~s by reason of any inJUry to any person or ;) 4 to whomsoever belonging, lncludlng Leasee, from any cause or 5 causes whatsoever while in, upon, or in ahy way connected with 6 the Ba~d leased land, except the sidewalks and/or parking area 7 adJacent thereto, during the term of this lease or any extension 1J hereof or sfiy'occupancy hereunder, Lessee hereby covenanting and Sl agreeing to indemn~fy and save harmless Lessor from all liability 10 10B9, cost, and obligations on account of or at1sing out of any 11 such injuri~a or losses however occurring 12 Lessee further agrees to take out and keep in I force dur~ng the life hereof at Lessee's expense pUblic liability I ~nsurance to protect against any liability to the public incident! to the usa of or resulting from any accident odeurr~ng in or abou~ / I I 13 14 15 16 5a~d premises, the liabil~ty under such insurance to be not lees 17 than $ ..2:0.0.000 00 for any ana person injured, $ 200.000 00 or 18 for anyone accident, or $200,000 00 for property damage 19 I , These pOliciee shall insure the cont1ngent liability of Lessor, add ~ 20 21 Lessee aqrees, if Lessee does not Xeep such insurance in full force and effect the Lessor may taka out the necessary insurance and pay the premium and the repaying thereof shall be deemed to he part of the rentaL ana paynent as such on the next day upon 22 23 24 wh~ch rent becomes due 25 16 QUIET ENJOYMENT The Lessee upon the payment of 26 the rent herein reserved and upon the perfoomance of all the term 27 of this ~eaBa. shall at all times during the lease term and durin 26 29 any extension or renewal term peaceably and quietly enjorthe leased property with free access thereto without arty distur~ance 30 Jl 32 from the Lessor or from any other person clalm1ug through the Lessor 17 LICENSES -- Lessee shall procure ana pay for all -~- 'I -- l \- 1 I{,~,;(~ 1 licensee and permit~ needed ~n connect~on with the operat~on of 2 bU8~nese, and shall keep the bus~ness open on all regular bus~ne< :3 days -4 18 COMPLIANCL WITH LAWS The Lessee shall, at is 5 ~olG expense, promptly comply w)th all present and future law~, 8 regUlat10ns br rules of any county state, federal, and other 7 governmental author~ty and any bureau and department thereof wh~c a ma~ be app11cable to the leasea property The Lessee shall have 9 the right after written notlce to the Lessor to cbntest by 10 appropr~ate~legal proceedings, dlligently conducteu in good faith 11 the validity~or application of any such law, regulation, ~r rule, 12 and to delay_compliance tnerew1.th pending the proseCut~on~of such 13 proceed~n9s, provided no c~vll or criminal liability would be ~n 14 eurred by the Lessor and no liGO or charg~ would be imposed uFon 15 or Bat~sf~ad out of the leased property by readon of such delay J.6 19 ~ ATTORNEY S I"EI:S Infue event of the br1.n9~ng Of 17 any act~on by ei~her party hereto as aga~nst the other hereon or hereunder, or by reaaon of the breach of any covenanl or conditio 16 19 on the part of the other party, or arising out of this l~ase, the 20 and in that- event the party in whose favor final Judgment shall b, entered shall be entitled to hav~ and recover of and from the oth, 21 22 reasonable attorney's fees to be fixed by the court wherein such 23 24 JUdgment shal~ be entered 20 Any notice under this lease must he ~n NOTICE 25 wrlt1ng and must be sent by reg~stered or certified mail to the 26 last address of the party to whom the notice ~s to be g~van as - I 1 das1gnet~a by such party in wr~t1ng The teasor hereby des~gnate~ 27 28 ~ts address as BllR~YLEY LA~D COMPANY 4550 San Pablo ~venue, 29 Oakland, California 94608 ~he Lessee hereby designates its 3D addreas as P 0 Dox 220, Pleesanton California 31 21 OPTION TO REHEW Lossee is hereby granted an 32 option to renew this lease for a further period of twenty (20) -10- ~~'W~I;IJtm~W"~Il>'M'f~':;~~~~~T'~ .'"_~_'''~ :- ......1 17 ~e2 ;L ~ , y~ara, :frolfl_4and after the e:xp:lration uf the on.ginai term at a 2 rental oi QNE HUNDRED FIFTY-THREE and 56/100 DOLLARS )$153 56} pe -'> mpntb, but otherwise :=. ....... ...'-t..~~ ,-1 "'{'i-' (.. (: ~ co~tatned e~~ep~ the option ~~99a;l~ ~~t~ntiop to renew this lease sha~l ~e giv,en to Lessor ~~ i~~st) :i~t;\(6Q) days prior to~the e:xpiration of this lease ~ upon the same terms and cond1tions as herein l I to renew wri~ten notice of ) \ " 4 5 6 7 22 ARBITR1>.'l'ION In the event of any dispute between 8 Lessor and LS3see relative to the provisions of this agreement, 9 they shall each $elect an arb1trator, the two arbitrators so selected shall select a third arbitrator and the three arbitratol 10 11 so selected shall hear and determ1ne the controversy and their decision thereon shall be final and binding upon both Lessor r....~~ and Lesse'~lwho shall bear the cost of sucn arbitration equally ~ ...., betwee~r;~em Upo~ notice by either party that he des1res to , have\8 m~tter ~bitrated, the other party shall within five (5) ~~ , days \here~fter notify the party requesting such arb1tration as \..~ to the~ame and address of his arbitr~~or The arbitration shal \ be heard and completed w~th!n th1rty (~OJ days fro~ the date the <- \ first notlfe of ~equest to arbitrate was deposited in the United States mail or personally dol~vered to the other par~y 1.2 1.3 14 1.5 16 1.7 18 19 20 21 SUCCESSORS AND ASSIGNS This agreement shall binc 23 22 and inure to the benefit of tha successors, a5s1g05, personal representati~~S, he~r8 and legatees of the respective parties IN WIT~~S5 WlmREOF, the parties have hereunto affixed the1r s1gnatures the 14th day of AprLl, 1967 23 24 25 26 "';fllt FIRST -t'IATIONAL BANK OF PLEASAJ a corporat~on BY~'~ ;)~l,1.\r ~ {1 I \ \ ' 'PreSl~nt By r U... I. 27 2B BERKELEY LAND COMPANY a corporat1.on By 1--/lc,r{ {~t",;:I;" ~""7,(:; ,I f ; .- ()) B1v'~ __ -<' <[ ~///4'(j7'_ I ,/ I ~ t-- LESSOR & Casluer L 29 30 3J.. 32 -11- .... ..- ,. -, r -,. j I~ ~ c2:X- \ j' LEASE AMENDMENT THIS LEASE AMENDMENT to Lease executed on Apr~l 14, 1967, ~5 executed 2n dupl~cate at Pleasanton, Cal~fornla thlB 9th day of May 19~, between BERKELEY LAND COMPANY, a lnafter referred to as Lessor rand FIRST NATIONAL BANK, a C rporatlon, herelnafter referred to as Lessee RECITALS WHEREAS Lessor and Lessee have entered lnto a Lease dated Aprll 14, 1967 for a portlon of the real property 1n the Dubl~n Square Shopplng Center more spec1flcally ldentlfled In Bald Lease, and, WHEREAS Bald Lease was extended by letter dated December 5, ~ 1986 to and lncludlng October 31, 2007, and, WHEREAS Lessor lntends to make certaln modlflcatlons to the Dublln Square Shopplng Center to lnclude, a fascla and slgnage upgrade of the center's exterlor along wlth related parklng lot, landscaplng and llghtlng lmprovements that wlll Sl.gnlflcantly enhance the center's appearance, and WHEREAS Lessee deslres to expand 1. ts build~ng by approXJ..mately one thousand one hundred (1,100) square feet on the parcel of land WhlCh l5 the subJect of the Lease, NOW, THEREFORE, IT IS AGREED between the partl.es hereto as follows AVD/A WP5C\LEASEAHD CFS ~/5/90 1 Exhobot lB t ~o., Jl.~ -... ) -; /1 ~;202 1 Paragraph 2 shall be amended to add the followlng proV1Slons Upon completlon of the expanslon proposed by Lessee here~n (wh~ch shall be deflned as lSSUaTICe of certlflcate of Occupancy by the Clty of Dublln) Lessee shall pay to Lessor, 1n advance, at the address set out after the slgnature of Lessor or at such other place or places, a monthly rent of N1ne Hundred Dollars ($900 0 ) to lnclude payment In full for park1ng rlghts n add1tlon, essee agrees to pay thelr pro-rata share of malntenance of common parklng area, landscap1ng, and llghtlng, not to exceed $100 00 er mont Sald sum shall be due on the flrst ay of each ca endar month ln lawful money of the Unlted States of Amerlca Notwlthstandlng the above, Lessor further agrees and acknowledges that sa1d lTIcreased monthly rent hereln descrlbed shall not commence untll such tlme as Lessor has completed all phases of Lessor's proposed mad~flcat~on as outllned ~n the attached letter of January 12, 1990 by Elmer H. Hansen, to the Dubl~n Square Shopplng Center, of WhlCh the subJect property ~s a part Complet~on of Lessor's proJect and the concurrent commencement of monthly rental obl~gatlons shall be eV1denced by flnal approval of the Clty of Dubl~n and recordatlon of a Not~ce of Completlon by Lessor Lessor further agrees to complete lts lmprovements on or before December 31, 1990 2 BUlldlna ExnanSlon Paragraph 4 15 hereby amended to add the followlng add1tlonal provlsions (d) Lessee shall be permltted to expand the eXlstlng bank bUllding on the demJ.sed premlses, at 1 ts sole cost and expense, to provlde for up to an addltlonal 1,100 square feet, more or lessl together wlth all necessary f1xtures and appurtenances Prlor to commenclng constructJ.on, Lessee shall obtaln Lessor's approval of the plans therefor, prlor to maJnng such alteratlon, lmprovement, addltlon or change, WhlCh approval shall not unreasonably be wlthheld by Lessor Lessee, at Lessee's own expense, shall comply Wlth all present and future governmental requ~rements relatJ.ng to the leased property only, ar1slng out of, ~n connectlon w~th, or necess~tated by such alteratlons except as may otherw~se be establlshed hereln. (e) Lessor agrees to cooperate fully W~ th Lessee's planned expans10n, pursuant to the provls1ons and obllgatlon of both the Lease and thlS Lease Amendment. Lessor agrees to cooperate w~th Lessee to obtaln approval of the Clty of Dublln Lessor's cooperatlon shall 1nclude, but not be Ilmlted to the preparatlon of trafflC eng1neerlng studl€S, appllcatlon for var1ance(s) for parklng, and such other ltems as may be requlred ..0.- AVO/A <OPSO\LaulmHD ere ='/"1"0 2 ,...,.., , '~l ,. 02 0 ~ Jd.-- by the Clty of Dublln (f) Should the expanslon proposed by Lessee hereln fall to obta~n the necessary Clty approval, the provlslons of thlS Lease Amendment relatlng excluslvely to the proposed expanslon wlll be of no force or effect 3 Paragraph 9 shall be amended In lts entlrety to read as follows 9 Asslgnment and Sublettlna Lessee shall have the rlght to asslgn/ mortgage or hypothecate thls Lease, or any lnterest In thlS Lease, or permlt the use of the premlses by any person or persons other than Lessee, or sublet the premlses or any part thereof No part of the leased premlses shall be sublet for a purpose WhlCh 1S unlawful, dangerous, nOXlOUS or offens~ve Any such ass~gnment or sublettlng shall not be for the conduct of a bUSlness that would dlrectly compete wlth that of another tenant 1n the Dubl1n Square Shopplng Center No such ass1gnment or sublett~ng shall operate to relleve the assJ.gn1ng party of any oblJ.gatJ.on or l~ab1llty arlslng under the terms of th~s Lease unless the other party hereto shall spec1flcally agree 1n wrltlng that such proposed asslgnment shall so release the asslgn1ng or sublettlng party 4 Paragraph 10 shall be amended 1n ltS entlrety to read as follows ~ or Any such elect.1.on by eJ.ther party shall be made by ~~tten notlce from one party to the other, on or before thlrty (30) days after t~datp. of the mutuallY aqreed termJ.natlon of the Lease e natural ex 1ratlon of the term of the Lease or the ----- renewal If the optlon to renew J.S exerclsed by essee AVO/A WP50\LeJ.S<:,>..KD em 3/&/1>0 3 r...... 1--) c2i 0;(02c2- ~ - 5 Paragraph 21 shall be amended to add the followlng prov1.sJ..on Lessee ~s hereby granted and shall have, If not at the tlme In default under th1S Lease, an opt1on to extend the term of the Lease for an add1t1onal perlod of flfteen (15) years only from october 31, 2007, but otherYllse on the same terms, covenants, and cond1t1ons hereln conta~ned, provlded however, that rent shall be adJusted to the then current fa1r market value as def1Ded below Thereafter rent shall be subJect to adJustment every three years to an amount equal to the lesser of (1) the change 1n the Consumer Pr1ce Index, or (11) seven percent (7%) Lessee shall not1fy Lessor In wr1tlng not less than one hundred Blghty (180) days 1n advance of the eXplrat10n of the then current term of ltS lntent to extend thlS Lease 6 Falr Market Value "Falr Market Value" shall mean the fa~r market base rent as def~ned below, at the tlme or t~mes In quest~on for the premlses, based on the prev81l1ng rentals then be~ng charged to tenants of ground leases 1n the general vlClnlty of the premLses of comparable SlZe, locatlon, and under Slm1lar Clrcumstances as the subJect premlses 7 Determlnat10n of Falr Market Value Lessor and Lessee shall endeavor to agree on the falr market value~ I f they are unable to see agree wlth~n th1rty (30) days after recelpt by Lessor of Lessee's notlce of exerC1se of lts optlon to extend, Lessor and Lessee shall each deslgnate a 11censed real estate appralser who 15 actlve In the leaslng of offlce space 1n the general vlclnlty, and the two real estate appralsers shall mutually appolnt a thlrd appralser slm1larly quallfled The three appralsers shall then determlne the falr market value by ma)Orlty vote, and thls determlnat10n shall be blndlng on the Lessor and Lessee Lessor ---- and Lessee shall each bear the cost of lts appralser and shall share equally the cost of the thlrd appralser AVD/A'WP...<J\L1i',O..S>:AKD "Fa ~ IS/lot. 4 \~ ,. .r~ 1 ,-) ~ ~ 02cL IN WITNESS WHEREOF, Lessor and Lessee have executed thlS Lease Amendment on the date flrst above wrltten AVD/A WP50\LEASEAKD C~B )/S/9tl By. By By By: BERKELEY LAND COMPANY, A Callfornla Corporatlon fJ~ -<:l~ (f #1 < LESSOR NATIONAL BANK, 5 ..,..