EXHIBIT 10
RETAIL LEASE
B STREET MARKETPLACE
HAYWARD, CALIFORNIA
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF HAYWARD
AS LANDLORD
AND
METRO COMMERCE BANK
AS TENANT
UNIT#5A&5B
INDEX
Section Page
1. BASIC TERMS 1
2. TERM 2
3. MINIMUM RENT 2
4. PERCENTAGE RENT 3
5. USE OF PREMISES 3
6. SECURITY DEPOSIT 3
7. UTILITIES 4
8. REAL PROPERTY TAXES 4
9. CONSTRUCTION AND ACCEPTANCE 5
10. REPAIRS AND MAINTENANCE 5
11. COMMON AREAS 6
12. TRADE FIXTURES AND SURRENDER 7
13. DAMAGE OR DESTRUCTION 8
14. EMINENT DOMAIN 8
15. INSURANCE 9
16. WAIVER OF SUBROGATION 9
17. RELEASE AND INDEMNITY 10
18. INSOLVENCY, ETC. OF TENANT 10
19. PERSONAL PROPERTY AND OTHER TAXES 10
20. SIGNS AND PROMOTION 11
21. ASSIGNMENT AND SUBLETTING 11
22. RIGHTS RESERVED BY LANDLORD 12
23. CONSENT OF LANDLORD 12
24. RIGHT OF LANDLORD TO PERFORM 12
25. LANDLORD DEFAULT 12
26. DEFAULT AND REMEDIES . 13
27. PRIORITY OF LEASE AND ESTOPPEL CERTIFICATE 14
28. HOLDING OVER 15
29. NOTICES 15
30. LIENS 15
31. QUIET ENJOYMENT 16
32. ATTORNEY'S FEES 16
33. RULES AND REGULATIONS 16
34. MISCELLANEOUS 16
35. MAINTENANCE CONTRACTS 17
36. PARKING 17
37. NON-DISCRIMINATION 18
38. BROKERS 18
1. EXHIBIT "A" SITE PLAN 21
2. EXHIBIT "B" LEGAL DESCRIPTION 22
3. EXHIBIT "C" CONSTRUCTION OBLIGATIONS 23
4. EXHIBIT "D" TENANT SIGN CRITERIA 25
4. EXHIBIT "E" RULES & REGULATIONS 25
SHOPPING CENTER LEASE
B STREET MARKETPLACE
THIS LEASE is made and entered into as of September 7, 2000, by and between the
Redevelopment Agency of the City of Hayward (hereinafter, "Landlord"), and Metro
Commerce Bank, (hereinafter, "Tenant").
A. DEMISE. Landlord hereby leases, demises and lets to Tenant, and Tenant
hereby leases, hires and takes from Landlord those certain premises (the
"Premises") described as follows:
That certain building or portion of a building commonly known as 805-825 B
Street. Suites 5A & 5B, being part of the B Street Marketplace, in the City of
Hayward, County of Alameda, State of California (the "Shopping Center"),
crosshatched on the Site Plan marked Exhibit A, comprising approximately 3315
square feet ("Tenant's Gross Leasable Area"), to be delivered by Landlord and
Tenant in accordance with Article 9 hereof. The Shopping Center consists of one
or more parcels of real property. The parcel or parcels of real property, as
described on Exhibit B owned by Landlord are hereinafter collectively referred
to as "Landlord's Parcel"
B. TERMS. COVENANTS AND CONDITIONS. The parties agree that this Lease is made
upon the following terms, covenants and conditions:
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1. BASIC TERMS
In all instances, the basic terms set forth in this Article 1 are subject to the
main body of the Lease in general and those Articles noted in parentheses in
particular.
a) Term: Ten (10) years, (Art. 2)
plus two five-year options (Art. 39)
b) Initial Minimum Monthly (Art, 3)
Rent: $5,976.25 per month.
To commence one hundred fifty (150)
days after delivery of the Premises to
Tenant or .when Tenant opens for business,
whichever is earlier.
c) Percentage Rent: None (Art, 4)
d) Security Deposit: $7,000.00 (Art, 6)
e) Initial Estimate of
Pro-rata Share: Tenant's Proportionate Share of
the Shopping Center shall initially be
29.08% (3,415/11,745), subject to
adjustment from time to time to reflect
changes in the total Gross Leasable Area.
f) Initial Monthly Payment (Art, 11)
for Common Area
Maintenance: $383.00
g) Initial Monthly Payment (Art, 8)
for Taxes or charges
in lieu thereof: $300.00
h) Tentative Premises (Art. 9)
Delivery Date: September 11, 2000
i) Time to Complete
Tenant's Work: 150 Days
j) Name of Business: Metro Commerce Bank
k) Hours of Operation: Not less than those hours typically (Art. 4)
observed by California commercial banks.
Said store hours, excluding Bank Holidays,
are initially set as:
Monday-Thursday 9:00 a.m. - 5:00 p.m.
Friday 9:00 a.m. - 6:00 p.m.
l) Permitted Use: A commercial banking institution offering (Art. 5)
banking services for businesses and
individuals including checking and savings
deposits, the making of commercial,
construction, mortgage, real estate, small
business administration, home equity and
other installment loans and term extensions
of credit, and other customary bank
services.
m) Radius Restriction: None (Art, 4)
n) Promotional Fund (Art. 20)
Contribution: None
o) This lease shall be subject to all encumbrances, covenants, (Art. 27)
restrictions, conditions and easements of record and to any
Construction, Operation and Reciprocal Easement Agreement
entered into by and between Landlord and the owner or owners of
the other parcel or parcels comprising or contiguous to the
Shopping Center, in existence at lease execution or in the future.
p) Tenant's Address for Notices: With a copy to: (Art. 29)
Metro Commerce Bank Metro Commerce Bank
1248 Fifth Avenue 805 B Street
San Rafael, CA 94901 Hayward, CA 94541
Attn.: Attn.: Branch Manager
q) Landlord's Address for Notices: With a copy to: (Art. 29)
Redevelopment Agency of B Street Marketplace
the City of Hayward c/o Shelter Bay Retail Group
777 B Street 655 Redwood Highway, Suite 177
Hayward, CA 94541-5007 Mill Valley, CA 94941
Attn.: B Street Marketplace
r) Brokers: Representing Landlord: Representing Tenant: (Art. 37)
Shelter Bay Retail Group Michael Tanzillo & Co.
655 Redwood Highway 20980 Redwood Road, Suite 210
Suite 177 Castro Valley, CA 94546
Mill Valley, CA 94941
s) This Lease consists of Articles 1 through 42, and Exhibits A, B, C, D and E
attached hereto, which are by this reference hereby incorporated herein.
2. TERM
This Lease shall be effective from and after the date first written above. The
term of this Lease shall commence on the date that the Premises are delivered to
Tenant in accordance with Paragraph 9.2 below, and shall terminate at midnight
on the last day of the month following the number of years set forth in
Paragraph 1(a) after the Rent Commencement Date as defined in Paragraph 3.
3. MINIMUM RENT
3.1 Tenant agrees to pay without offset or deduction of any kind the monthly
Minimum Rent set forth in Paragraph 1(b) above, subject to adjustment pursuant
to Paragraph 3.2, in advance on the first day of each calendar month during the
term of this Lease. Such payments shall be sent to Shelter Bate Group. 655
Redwood Highway, Suite 177 Mill Valley, CA 94941 or such other address as from
time to time designated by Landlord to Tenant in writing. Tenant's obligation to
pay such rent shall commence on the "Rent Commencement Date" which is defined as
the earlier of (i) the number of days specified in Paragraph 1(i) as the "Time
to Complete Tenant's Work" after delivery of the Premises to Tenant, or (ii) the
date Tenant first commences to do business in, on or from the Premises. If the
Rent Commencement Date is not the first day of a
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calendar month, the first month's rent shall be prorated on the basis of a
thirty (30) day month, and shall be payable with the first full monthly rental
due hereunder.
3.2 Tenant agrees that the Monthly Minimum Rent shall be adjusted throughout
the lease term as follows:
The monthly Minimum Rent payment set forth in Paragraph 1(b) shall be adjusted
upward but not downward, based on the Consumer Price Index, All Urban Consumers
[All Items Index] (base years 1982-1984=100) for San Francisco-Oakland-San Jose
("Index") as published by the United States Department of Labor's Bureau of
Labor Statistics (Bureau). The base period Index shall be the Index for the
calendar month that is two months prior to the month in which the Rent
Commencement Date occurs. The base period Index shall be compared with the Index
for the same calendar month for each subsequent calendar year (comparison
month). If the Index for any comparison month is higher than the base period
Index, then the monthly Minimum Rent for the next twelve (12) months of the Term
shall be increased by the identical percentage commencing with the first rental
payment due for said twelve (12) month period, provided however, that in no
event shall the adjusted monthly Minimum Rent be less than three percent (3%)
nor more than six percent (6%) above the monthly Minimum Rent due immediately
prior to the adjustment. Should the Bureau discontinue the publication of the
above Index, or publish same less frequently, or alter same in some other
manner, then Landlord shall adopt a substitute index or substitute procedure
which reasonably reflects and monitors consumer prices. In the event of any
disagreement between the parties regarding any provisions of this Paragraph 3.2,
the parties agree to refer the matter to arbitration at, and in accordance with
the rules of, the American Arbitration Association.
4. PERCENTAGE RENT
4.1 The term "Lease Year" as used herein shall mean each full twelve (12)
calendar month period during the lease term, commencing with the Rent
Commencement Date, for the first Lease Year, and on the yearly anniversary of
the Rent Commencement Date thereafter. If, however, the Rent Commencement Date
is not the first day of the calendar month, then the first Lease Year shall
consist of that partial calendar month commencing with the Rent Commencement
Date together with the twelve (12) full calendar months immediately thereafter;
and all subsequent Lease Years shall commence on the yearly anniversary of the
first day of the first full calendar month of the term hereof.
4.2 Tenant shall operate its business in the Premises with due diligence and
efficiency so as to produce the maximum amount of gross sales which may be
produced by such a manner of operation under the trade name specified in
Paragraph 10) and under no other name without Landlord's prior written consent.
From and after the Rent Commencement Date, Tenant shall continuously conduct the
business described in Paragraph 5.1 hereof for at least those days and hours set
forth in Paragraph 1(k). At all times, Tenant shall provide a full range of
customary banking services and shall maintain adequate personnel for the
efficient service of its customers. The parties covenant and agree that because
of the difficulty or impossibility of determining Landlord's damages from loss
of the anticipated customer traffic generated by Tenant and the negative affect
on the other tenants of the Shopping Center by virtue of Tenant's failure to
continuously conduct the business described in Paragraph 5.1 hereof for at least
those day s and hours set forth in Paragraph 1(k), and at all times, to provide
a full range of customary banking services and to maintain adequate personnel
for the efficient service of its customers, Landlord shall have the right, at
its option, (i) to collect not only the Minimum Rent, as well as all other
charges and sums herein reserved, but also an amount equal to fifty percent
(50%) of the Minimum Rent reserved for the period commencing thirty (301 days
from the date of Tenant's breach of the aforesaid covenants, computed at a daily
rate for each and every day or portion thereof during said period, and such
Additional Rent, a good faith and reasonable estimate of Landlord's actual
damages, shall be deemed to be liquidated damages; and (ii) to treat such
failure to observe the aforesaid covenants as a material breach and default of
this Lease by Tenant, within the meaning of Article 26 hereof, without the
necessity of any prior notice to Tenant.
4.3 Wherever Tenant's business or operations, or Tenant's gross sales, or
Tenant's records, books, accounts and other data are referred to in this Lease,
they shall be deemed to include those of any assignee, sublessee,
concessionaire, licensee, vending machine operator, or other person, firm or
corporation selling merchandise or services on or from the Premises; provided,
this subparagraph shall not be deemed to imply consent to the operations of any
such other person, firm or corporation except in accordance with the provisions
of Article 21 hereof.
5. USE OF PREMISES
5.1 The Premises shall be used and occupied only for the purposes described in
Paragraph 1(1) above, and for no other purposes without Landlord's prior written
consent.
5.2 Tenant shall not do or permit to be done in or about the Premises anything
which is illegal or unlawful; or which is of a hazardous or dangerous nature; or
which will increase the rate of, or cause cancellation of, any insurance on the
building of which the Premises are a part. Tenant shall not obstruct or
interfere with the rights of any other tenants of the Shopping Center or their
customers and invitees, nor injure or annoy them.
5.3 Tenant shall not cause, maintain or permit any nuisance in, on or about
the Premises, nor commit any waste therein or thereon. Tenant shall not use nor
permit the use of the Premises or any part thereof as living or sleeping
quarters.
5.4 Tenant shall furnish, install and maintain in the Premises such trade
fixtures, furniture and other property reasonably appropriate to the conduct of
Tenant's business.
5.5 Tenant agrees that, at its own cost and expense, it will comply with and
conform to all laws and ordinances and any and all lawful requirements and
orders of any properly constituted governmental board of authority, in any way
relating to the use or occupancy of the Premises throughout the entire term of
this Lease.
6. SECURITY DEPOSIT
6.1 Upon execution of this Lease, Tenant has deposited with Landlord the sum
specified in Paragraph 1(d) above. Said sum shall be held by Landlord as
security for the faithful performance by Tenant of all of the obligations of
this Lease to be kept and performed by Tenant. Said deposit shall not be
assigned, transferred or encumbered by Tenant, and any attempt to do so by
Tenant shall not be binding upon Landlord.
6.2 If Tenant defaults with respect to any provision of this Lease, or should
Landlord make any payment on behalf of Tenant, Landlord may (but shall not be
required to) use, apply or retain all or any part of said deposit for the
payment of any rent or any other sum in default, or for the payment of any other
amount which Landlord may spend or become obligated to spend by reason of
Tenant's default, or to compensate Landlord for any other loss or damage which
Landlord has suffered or may suffer by reason of Tenant's default. If any
portion of said deposit is so used, applied or retained, Tenant shall, within
five (5) days after written demand by Landlord therefor, deposit cash with
Landlord in an amount sufficient to restore said deposit to its original sum.
Tenant's failure to do so shall constitute a material breach of this Lease, and
Landlord may, without any further notice, exercise its remedies specified in
Paragraph 26 hereof.
6.3 Landlord shall not be required to keep said deposit separate from its
general funds and is in no event to be deemed a trustee thereof, and Tenant
shall not be entitled to interest on any sums deposited or redeposited under
this Article. If Tenant shall have fully and faithfully performed all of its
obligations under this Lease, said deposit or its then remaining balance shall
be refunded to Tenant, or the last assignee or successor in interest thereto,
within five (5) business days after the termination of this Lease. In the event
Landlord's interest in this Lease is sold or otherwise terminated, Landlord
shall transfer said deposit to its successor in interest, and thereupon Landlord
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shall be discharged from any further liability with respect thereto. The
provisions of the preceding sentence shall likewise apply to any subsequent
transferees.
6.4 If for any reason this Lease is terminated prior to the commencement of
the term (other than for nonperformance of Landlord), in addition to any other
rights it may have, Landlord shall have the right to retain the security
deposit.
7. UTILITIES
7.1 Tenant, at its own cost and expense, shall pay for all water, gas, heat,
electricity, garbage disposal, sewer charges, telephone, and any other utility
or service charge related to its occupancy of the Premises. If any such services
are not separately metered or submetered to Tenant, Tenant shall pay a
reasonable proportion, to be determined by Landlord, of all charges jointly
metered with other premises.
7.2 Landlord shall not be liable in damages, consequential or otherwise, nor
shall there be any rent abatement, arising out of any interruption or reduction
whatsoever in utility services which is due to fire, accident, strike,
governmental authority, acts of God, or other causes beyond the reasonable
control of Landlord or any temporary interruption in such service necessary to
the making of such repairs.
8. REAL PROPERTY TAXES
8. 1 Tenant shall pay as Additional Rent its proportionate share of all "Taxes"
(as hereinafter defined) which may be levied, assessed or imposed against or
become a lien upon, the land, buildings and all other improvements on Landlord's
Parcel. The term "Taxes" shall mean and include real estate taxes, assessments
(special or otherwise) including assessments relating to the acquisition and
construction of off-site improvements for the Shopping Center to the extent not
reimbursed by any governmental agency, impositions for the purpose of funding
special assessment districts, water and sewer rents, rates and charges
(including water and sewer charges which are measured by the consumption of the
actual user of the item or service for which the charge is made) levies, fees
(including license fees), possessory interest taxes, and all other taxes,
governmental levies and charges of every kind and nature whatsoever, (and
whether or not the same presently exist or shall be enacted in the future) which
may during th e term be levied, assessed, imposed, become a lien upon or due and
payable with respect to, out of or for:
a) Landlord's Parcel or any part thereof, or of any land, building or
improvements thereon, or the use, occupancy or possession thereof;
b) Any interest of Landlord and/or Tenant (including any legal or equitable
interest of Landlord or its mortgagee, if any) in Landlord's Parcel and/or the
underlying realty or upon the Lease or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises; c) The rents
receivable by Landlord for Landlord's Parcel or which may be based thereupon or
measured thereby, whether or not such taxes are a lien upon Landlord's Parcel,
including gross receipts taxes, business taxes, business and occupation taxes
but excluding net income or excess profits taxes; and d) The ownership, leasing
operation, maintenance, alteration or repair of Landlord's Parcel.
"Taxes" shall also include interest on installment payments and all costs and
fees (including reasonable attorney's, consultant's and appraiser's fees)
incurred by Landlord in contesting Taxes and negotiating with public authorities
as to the same, Provided Tenant receives a ratable credit for any refund
obtained through such a contest. Taxes shall not include, however, any
franchise, estate, inheritance, corporation, transfer, net income or excess
profits tax.
8.2 Tenant's proportionate share of Taxes with respect to any tax fiscal year
during the term hereof shall be that portion of the total of the Taxes assessed
in any such tax fiscal year multiplied by a fraction, the numerator of which is
the Gross Leasable Area of the Premises and the denominator of which is the
total Gross Leasable Area of all buildings on Landlord's Parcel (i.e. the number
of square feet of area in the building or buildings on Landlord's Parcel then
leased or ready and available for leasing) as of the date when such Taxes are
assessed. The initial estimate of Tenant's proportionate share, subject to
adjustment from time to time to reflect changes In the Gross Leasable Area, is
set forth in Paragraph 1(e).
8.3 Commencing with the Rent Commencement Date, Tenant shall pay Landlord
monthly, with each payment of monthly Minimum Rent, the amount set forth in
Paragraph 1(g) above as an impound toward its share of Taxes. Tenant's actual
obligation for Taxes shall be determined and computed by Landlord not less often
than annually and at the time each such computation is made, Landlord and Tenant
shall adjust for any difference between impounded amounts and Tenant's actual
share. At the time of each such computation, Landlord may revise the monthly
payment for Taxes set forth in Paragraph 1(g) above by written notification to
Tenant. Tenant shall pay its share of Taxes during each year of the Lease term.
Landlord shall furnish such figures, computation and information as Tenant may
reasonably request for the purpose of verifying the amounts charged to Tenant by
Landlord.
8.4 If this Lease shall terminate on any date other than the last day of a tax
fiscal year, the amount payable by Tenant during the tax fiscal year in which
such termination occurs shall be prorated on the basis which the number of days
from the commencement of said tax fiscal year to and including said termination
date bears to 365. A similar proration shall be made for the tax fiscal year in
which the term commences. The obligation of Tenant under this Article shall
survive the termination of this Lease.
9. CONSTRUCTION AND ACCEPTANCE
9.1 Notwithstanding anything to the contrary contained herein, Landlord and
Tenant hereby agree that Tenant shall accept delivery of the Premises in its
current, "as is" condition, and Tenant shall be responsible for the completion
of Landlord's Work as set forth in Exhibit C, provided that Landlord shall
remain responsible for all costs attributable to the completion of such work,
subject to the provisions of Paragraph 9.2.
9.2 Tenant shall prepare a bid package for the construction of all
improvements to the Premises with Landlord's Work segregated from Tenant's Work
for bidding purposes (the "Bid Documents"). Upon Landlord's approval of the Bid
Documents, not to be unreasonably withheld or delayed, the project shall be put
out for competitive bids to no less than three qualified contractors. Landlord
reserves the right to approve all contractors to be included on the bid list and
to submit its own contractors for inclusion in the bid list. Tenant shall have
the right, in its reasonable discretion, to select the best overall bid taking
into consideration the total cost as well as the contractor's qualifications and
ability to meet the schedule as defined within the Bid Documents. Tenant will
provide Landlord with a copy of the executed construction contract along with
copies of the contractor's insurance certificate(s) and contractor's license.
Any and all additions, deletions and modifications to the Landlord's Work must
be a uthorized by a written change order signed by Landlord and Tenant, and the
contract price shall be modified only as set out in the written change order.
Subject to receipt of the foregoing documentation, Landlord shall reimburse
Tenant for the cost of Landlord's Work within fifteen (15) days of Tenant's
submission to Landlord of a) conditional lien releases or receipts for progress
payments made evidencing Tenant's payment in full to all suppliers and
contractors providing materials or services associated with the Landlord's Work,
and b) a certificate of insurance as required In the Lease. The Parties
acknowledge and agree that Tenant intends to construct a ceiling and install
lighting other than Landlord's standard suspended T-bar acoustical ceiling with
drop-in 2 x 4 fluorescent light fixtures, but that both ceiling and lighting
designs shall be bid as alternates within the Bid Documents. The Parties further
agree that Landlord's reimbursement for the ceiling and related lightens shall
be an amount equal t o the lesser of the actual cost of the ceiling and related
lighting or the bid amount for Landlord's standard ceiling and lighting design.
Notwithstanding the above, in the event that the bid accepted by Tenant does not
include the lowest amount bid for Landlord's Work, Landlord's
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obligation to reimburse Tenant for Landlord's Work shall not exceed the amount
that is 10% above the lowest bid received for Landlord's Work from a qualified
contractor meeting all bid specifications.
9.3 Tenant agrees, immediately upon receipt of a fully executed copy of this
Lease, to accept delivery of the Premises and to thereupon immediately proceed,
with due diligence and at its own expense, to perform Landlord's Work as
designated on Exhibit C, to install its trade fixtures and to perform Tenant's
Work as designated on Exhibit C and such other work as it may deem necessary to
open for the conduct of its business in the Premises. Tenant agrees to undertake
such work in compliance with Article 10 herein and further that it will comply
with all government rules, regulations and ordinances relating to the
installation of Tenant's trade fixtures and will fully pay for such work and
will obtain insurance as specified in Article 15.
9.4 Tenant shall have a period of thirty (30) days from delivery of the
Premises within which to notify Landlord in writing of any defects in Landlord's
existing improvements . In the event of Tenant's proper notice, Landlord shall
promptly correct the defect. From and after said thirty (30) day period,
Landlord shall have no obligation in regard to said construction except as
otherwise provided by this Lease and Landlord extends no warranties express or
implied other than as stated above. Landlord shall not be liable for any damages
caused because of delay in delivering possession of the Premises to Tenant.
9.5 Tenant agrees to open its business in the Premises not later than the Rent
Commencement Date described in Paragraph 3 above.
10. REPAIRS AND MAINTENANCE
10.1 Subject to reimbursement by Tenant as provided in Article 11 hereof,
Landlord shall keep and maintain the roof (including the structural integrity
thereof) and the foundation, structural integrity and the exterior surfaces of
the exterior walls of the building in which the leased Premises are located
(exclusive of doors, door frames, door checks, other entrances, windows and
window frames which are not part of common areas, and storefronts) in good
repair, provided that Landlord shall not be required to make any such repairs
occasioned by the act or negligence of Tenant, its agents, employees, invitees,
licensees, or contractors. Tenant shall give Landlord prompt written notice of
any damage to the Premises requiring repair by Landlord. Notwithstanding an
anything to the contrary contained herein. Tenant shall, at its expense. keep
and maintain any skylights installed in the Premises in Good order, condition
and repair, and shall be responsible for 100% of the cost of any repairs to the
roof attributabl e to such skylights.
10.2 Except as provided in Paragraph 10.1 hereof, Tenant shall, at its expense,
keep and maintain the Premises and every part thereof in good order, condition
and repair, and shall do such reasonable periodic painting of the interior
thereof as may be required and approved by Landlord. Tenant shall keep its
sewers and drains open and clear and shall keep the sidewalks and adjacent
public areas clean and free of litter and debris attributable to Tenant's
business. Tenant shall reimburse Landlord on demand for the cost of damage to
the Premises or the building, and public areas adjacent thereto, or common areas
as defined below, caused by Tenant or its employees, agents or invitees. If
Tenant shall fail to comply with the foregoing requirements, Landlord may effect
such maintenance and repair, and the cost thereof shall be due and payable as
Additional Rent to Landlord within five (5) days after written demand therefor
by Landlord. Tenant's failure to pay such Additional Rent shall constitute a
material breach of this Lease, and Landlord may, without any further notice,
exercise its remedies specified in Paragraph 26 hereof.
10.3 Tenant shall obtain and keep in full force and effect, at its expense, a
contract for the repair and maintenance of the air conditioning and heating
system and provide Landlord with a copy of said contract within ten (10) days
after Tenant opens for business. The contract shall provide for periodic
inspections and preventative maintenance of the system with a frequency
appropriate for the geographical area in which the Shopping Center is located.
The contract shall be for the benefit of Landlord and Tenant and in a form and
placed with a licensed contractor satisfactory to Landlord.
10.4 Tenant shall not make any alterations, changes or improvements in or to
the Premises or any part thereof without first obtaining Landlord's written
consent, and all of the same shall be at Tenant's sole cost. Landlord may impose
as a condition of its consent such requirements as Landlord, in its sole
discretion, may deem reasonable and desirable, including but not limited to, the
requirement that Tenant utilize for such purposes only contractors, materials,
mechanics and materialmen approved by Landlord and that good and sufficient
plans and specifications be submitted to Landlord at such times as its consent
is requested. All alterations, additions, changes and improvements made by
Tenant shall become the property of Landlord and a part of the realty and shall
be surrendered to Landlord upon the expiration or sooner termination of the term
hereof, provided however, that the teller under counter equipment, night drop
vault, ATM, vault and vault door shall be removed by Tenant and Tenant shall
repair all damage caused by such removal and restore the exterior of the
Premises to its original condition at its cost and with all due diligence.
Further, Landlord may designate by written notice to Tenant those alterations,
additions and improvements which shall be removed by Tenant at the expiration or
termination of the Lease and Tenant shall promptly remove the same and repair
all damage caused by such removal at its cost and with all due diligence.
11. COMMON AREAS
11.1 Landlord agrees to maintain or cause to be maintained during the term of
this Lease, all Common Areas within the Shopping Center. The term "Common Areas"
as used in this Lease shall include, walkways, delivery areas, landscaped areas,
public restrooms, if any, and other areas, facilities and improvements within
portions of the Shopping Center not demised to tenants and provided for the
convenience and use of tenants of the Shopping Center, their employees,
customers and invitees. Tenant agrees to comply with and observe all reasonable
rules and regulations established by Landlord from time to time for Landlord's
Parcel and/or by Landlord and other owners of the Shopping Center, for the
Shopping Center.
11.2 The manner and method of operation, maintenance, service and repair of the
Common Areas and the expenditures therefor, shall be in the sole and absolute
discretion of Landlord. Landlord reserves the right from time to time to make
changes in, additions to and deletions from the Common Areas and the purposes to
which they are devoted, provided however, that Tenant's share of operating and
maintenance costs shall exclude the initial cost of capital improvements that
significantly alter the Common Areas.
11.3 Tenant agrees to comply with such reasonable rules, regulations and
charges as Landlord may adopt from time to time for the orderly and proper
operation of the Common Areas, including, without limitation, the removal,
storage and disposal of refuse and rubbish. Tenant understands and agrees that
no outdoor selling of merchandise is permitted in the Common Areas except in
connection with occasional center-wide promotions sponsored by Landlord.
11.4 During the term of this Lease, Tenant shall pay to Landlord, as Additional
Rent, at the time and in the manner specified in Paragraph 11.5 below, Tenant's
prorate share of the following costs (collectively "operating and maintenance
costs"): (i) all costs and expenses of every kind and nature paid or incurred by
Landlord in operating, policing, protecting, lighting, providing sanitation and
sewer and other services to, insuring, repairing, replacing and maintaining the
Common Areas of the Shopping Center and (ii) all costs of repairing and insuring
all buildings within Landlord's Parcel including, without limitation, costs of
painting and cleaning the exterior walls and of replacing the roofs of such
buildings. Operating and maintenance costs shall include, but shall not be
limited to, the following: water, electricity and guard services; salaries and
wages (including employment taxes and so-called "fringe benefits") or
maintenance contracts of all persons connected with the regular operation,
servicing,
<PAGE>
repair and maintenance of the Shopping Center; third party property management
fees; premiums for liability and Workers' Compensation insurance (which
insurance Landlord, at all times during the Lease term, agrees to maintain); the
premiums for the insurance Landlord maintains pursuant to Article 15 hereof;
real property taxes imposed on the Common Areas; personal property taxes, if
any; charges, excises, surcharges, fees or assessments levied by virtue of the
parking facilities furnished; costs and expenses of planting, replanting and
relandscaping; garbage removal, if any; lighting; utilities; repainting and
restriping; fees for equipment rental, any licenses and/or permits required for
operation of the Common Areas, or any part thereof. ;gad In the event Landlord
manages the Shopping Center, a charge of fifteen percent (15%) of all "operating
and maintenance costs" for Landlord's administrative and overhead expenses shall
be included in lieu of third party management fees.
11.5 Tenant's prorata share of the "operating and maintenance costs" described
in Paragraph 11.4 above shall be an amount equal to the sum of the following:
(i) Tenant's share of the operating and maintenance costs relating to the
buildings within Landlord's Parcel. Tenant's share of such costs shall be
determined by multiplying the aggregate of such costs by a fraction, the
numerator of which is the Gross Leasable Area of the Demised Premises, and the
denominator of which is the total Gross Leasable Area of all buildings within
Landlord's Parcel.
(ii) Tenant's share of the operating and maintenance costs relating to the
Common Areas of the Shopping Center. Tenant's share of such costs shall be
determined by multiplying the aggregate of such costs by a fraction, the
numerator of which is the Gross Leasable Area of the Demised Premises, and the
denominator of which is the total Gross Leasable Area of all buildings within
the Shopping Center.
If, during any calendar year, the total Gross Leasable Area within Landlord's
Parcel shall change, then Tenant's prorate share of the operating and
maintenance costs shall be adjusted in accordance with the formula set forth
hereinabove and Landlord, within a reasonable time thereafter, shall estimate
Tenant's share of the operating and maintenance costs for the balance of the
calendar year.
The initial estimate of Tenant's proportionate share, subject to adjustment from
time to time to reflect changes in the Gross Leasable Area, is set forth in
Paragraph 1(e)
11.6 As Additional Rent, Tenant shall pay Landlord monthly a Common Area charge
in an amount estimated by Landlord to be Tenant's share of the "operating and
maintenance costs" on the first day of each month, commencing on the Rent
Commencement Date and continuing on the first day of each month thereafter
during the term hereof.
The initial monthly Common Area charge shall be that sum set forth in Paragraph
1(f) above; Landlord may adjust the monthly Common Area charge at the end of
each calendar year on the basis of Landlord's anticipated costs for the
following calendar year or, as specified hereinabove at Paragraph 11.5, at such
time as the total Gross Leasable Area within Landlord's Parcel (or the Shopping
Center, if all Common Areas in the Shopping Center are maintained by Landlord)
shall change.
11.7 Within ninety (90)days after the end of each calendar year, Landlord shall
furnish to Tenant a statement showing the total "operating and maintenance
costs", Tenant's share of such costs, and the total of the monthly payments made
by Tenant to Landlord during the calendar year just ended. Such statement shall
be certified by Landlord as being correct. Landlord shall keep good and accurate
books and records in accordance with generally accepted accounting principles
concerning the operation, maintenance and management of the Common Areas, and
Tenant and its agents shall have the right, upon ten (10) days' notice, to
audit, inspect and copy such books and records.
11.8 If Tenant's share of the "operating and maintenance costs" for the
accounting period exceeds the payments made by Tenant, Tenant shall pay Landlord
the deficiency within ten (10) days after the receipt of Landlord's statement.
Tenant's failure to pay such Additional Rent shall constitute a material breach
of this Lease, and Landlord may, without any further notice, exercise its
remedies specified in Paragraph 26 hereof. If Tenant's payments made during the
accounting period exceed Tenant's prorate share of the "operating and
maintenance costs," Tenant may deduct the amount of the excess from the
estimated payments next due to Landlord or, if no further estimated payments are
due to Landlord, Landlord shall refund the excess within a reasonable time after
the furnishing of the aforesaid year end statement by Landlord. The obligations
of Landlord and Tenant hereunder shall survive the termination of this Lease.
12. TRADE FIXTURES AND SURRENDER
12.1 Upon the expiration or sooner termination of the term hereof, Tenant shall
surrender the Premises including, without limitation, all keys and all apparatus
and fixtures then upon the Premises, in as good condition as when received,
reasonable wear and tear alone excepted, broom clean and free of trash and
rubbish and, subject to Landlord's election set forth in Paragraph 10.4, with
all alterations, changes, additions and improvements which may have been made or
installed from time to time either by Landlord or Tenant in, on or about the
Premises. All of the same shall be the property of Landlord and shall be
surrendered by Tenant without any injury, damage or disturbance thereto, and
Tenant shall not be entitled to any payment therefor. Said property of Landlord
shall include, without limitation, all lighting fixtures, fluorescent tubes and
bulbs, and all partitions whether removable or otherwise.
12.2 Moveable trade fixtures, furniture and other personal property installed
in the Premises by Tenant at its cost shall be Tenant's property unless
otherwise provided in this Lease and if not in default hereunder, Tenant shall
remove all of the same specifically including Tenant's identification signs, the
teller under counter equipment night drop vault ATM vault and vault door prior
to the termination of this Lease and at its own cost and repair any damage to
the Premises and the building caused by such removal and restore the exterior of
the Premises to its original condition. If Tenant fails to remove any of such
property, Landlord may at its option retain such property as abandoned by Tenant
and title thereto shall thereupon vest in Landlord, or Landlord may remove the
same and dispose of It in any manner and Tenant shall, upon demand, pay Landlord
the actual expense of such removal and disposition plus the cost of repair of
any and all damage to said Premises and building resulting from or caused by s
uch removal.
12.3 The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of the
Landlord terminate all or any existing subleases and subtenancies, or may, at
Landlord's option, operate as an assignment to it of any or all such subleases
or subtenancies.
12.4 If, at any time during the last thirty (30)days of the term hereof, Tenant
has removed all or substantially all of its aforesaid property from the
Premises, Landlord shall thereafter have the right to enter said Premises for
the purpose of altering, renovating and/or redecorating the same. Any such entry
or work by Landlord shall not entitle Tenant to any abatement of rent or any
other sum payable hereunder nor shall such entry or work be deemed an eviction
or disturbance of Tenant's use and occupancy.
13. DAMAGE OR DESTRUCTION
13.1 Except as otherwise provided in Paragraph 13.2, if the Premises are
damaged and destroyed by any casualty covered by Landlord's fire insurance
policy, Landlord shall repair such damage as soon as reasonably possible, and
the Lease shall continue in full force and effect.
13.2 If the Premises are damaged or destroyed by any casualty covered by
Landlord's fire insurance policy to the extent of twenty-five percent (25%) or
more of the replacement value of the Premises during the last twenty-four (24)
months of the term hereof, or if the insurance proceeds are required to be paid
to a holder of a security interest in Landlord's Parcel or if the buildings on
Landlord's Parcel shall be damaged
<PAGE>
to the extent of fifty percent (50%) or more of the replacement value and
regardless of whether or not the Premises be damaged, then Landlord may, at
Landlord's option, either (i) repair such damage as soon as reasonably possible,
in which event this Lease shall continue in full force and effect, or (ii)
cancel and terminate this Lease by giving Tenant written notice of Landlord's
election to do so within ninety (90) days after the date of the occurrence of
the damage. In such event this Lease shall terminate thirty (30) days after the
giving of such notice by Landlord.
13.3 If at any time during the term hereof the Premises are damaged and such
damage was caused by a casualty not covered under Landlord's insurance policy
specified in Paragraph 15.2 hereafter, and the damage does not exceed ten
percent (10%) of the replacement value thereof, Landlord shall repair such
damage as soon as reasonably possible and this Lease shall continue in full
force and effect. If, however, the damage exceeds ten percent (10%), then
Landlord may, at its option, either (i) repair such damage as soon as reasonably
possible at Landlord's expense, in which event this Lease shall continue in full
force and effect, or (ii) cancel and terminate this Lease by giving Tenant
written notice of Landlord's election to do so within thirty (30) days after the
date of occurrence of such damage, in which event this Lease shall so terminate
unless within thirty (30) days thereafter Tenant agrees to repair the damage at
its cost and expense or pay for Landlord's repair of such damage.
13.4 In the event of damage or destruction the Minimum Rent and other charges
(excluding Percentage Rent) payable hereunder shall be proportionately reduced
during the period of damage and any repair or restoration pursuant to this
Article 13 said reduction to be based upon the extent to which the damage or the
making of such repairs or restoration shall interfere with Tenant's business
conducted in the Premises. In no event, however, shall the amount of such rent
abatement exceed the proceeds of the rent abatement insurance required to be
carried by Landlord pursuant to Paragraph 15.2 hereof.
13.5 Landlord shall in no event be required or obligated to repair, restore or
replace any of Tenant's leasehold improvements, trade fixtures or any other
property whatever installed in the Premises by Tenant.
14. EMINENT DOMAIN
14.1 If all or substantially all of the Premises shall be taken or appropriated
by any public or quasi-public authority under the power of eminent domain (or
similar law authorizing the involuntary taking of private property, which shall
include a sale in lieu thereof to a public body), either party hereto shall have
the right, at its option, to terminate this Lease effective as of the date
possession is taken by said authority, and Landlord shall be entitled to any and
all income, rent, award and any interest thereon whatsoever which may be paid or
made in connection with such public or quasi-public use or purpose. Tenant
hereby assigns to Landlord its entire interest in any and all such awards, and
shall have no claim against Landlord for the value of any unexpired term of this
Lease, provided however, that if an award is made for Tenant's Trade Fixtures
that have become part of the realty and which Tenant has a right to remove as
provided in this Lease but elects not to remove, Tenant shall receive the am
ount so awarded.
14.2 If only a portion of the Premises is taken, then this Lease shall continue
in full force and effect and the proceeds of the award shall be used by Landlord
to restore the remainder of the improvements on the Premises so far as
practicable to a complete unit of like quality and condition to that which
existed immediately prior to the taking, and the Minimum Rent shall be reduced
in proportion to the floor area of the Premises taken. Landlord's restoration
work shall not exceed the scope of work done by Landlord in originally
constructing the Premises and the cost of such work shall not exceed the amount
of the award received by Landlord.
14.3 Nothing hereinbefore contained shall be deemed to deny to Tenant its right
to claim from the condemning authority compensation or damages for its trade
fixtures and personal property.
15. INSURANCE
15.1 Tenant shall, at all times during the term hereof, at its expense, carry
and maintain insurance policies in the amounts and in the form hereafter
provided:
(a) Public Liability and Property Damage: Bodily injury liability insurance
with limits of not less than Two Million Dollars ($2,000.000.00) per person and
Five Million Dollars ($5,000.000.00) per occurrence insuring against any and all
liabilities of the insured with respect to the Premises or arising from the
maintenance, use or occupancy thereof, and property damage liability insurance
with limits of not less than One Million Dollars ($1.000.000.00) per occurrence.
All such insurance shall specifically insure the performance by Tenant of the
indemnity agreement as to liability for injury to or death of persons and loss
of or damage to property contained in Article 17 hereof. Said insurance shall
name Landlord and such other parties as Landlord shall designate as an
additional insured, and shall provide that Landlord, although named as an
insured shall nevertheless be entitled to recovery thereunder for any loss
suffered by it, its agents, servants and employees by reason of Tenant's
negligence. Said insur ance shall be primary insurance as respects Landlord and
not participating with any other available insurance.
(b) Plate Glass: Tenant shall, at its expense, carry and maintain plate glass
insurance.
(c) Tenant Improvements: Insurance covering all of Tenant's leasehold
improvements, trade fixtures, merchandise and other personal property from time
to time in the Premises in an amount not less than ninety percent (90%) of their
full replacement cost from time to time, providing protection against any peril
included within the classification "Fire and Extended Coverage," together with
insurance against sprinkler damage, vandalism and malicious mischief. The
proceeds of such insurance shall, so long as this Lease remains in effect, be
used to repair or replace the property damaged or destroyed.
(d) Policy Form: All insurance to be carried by Tenant hereunder shall be in
companies, on forms and with loss payable clauses satisfactory to Landlord and
copies of such policies or certificates evidencing such insurance shall be
delivered to Landlord within ten (10) days after delivery of possession of the
Premises to Tenant and within thirty (30) days prior to the expiration date of
each policy. No such policy shall be cancelable except after twenty (20) days
advance written notice to Landlord. Tenant shall have the right to maintain
required insurance under blanket policies provided that Landlord is named
therein as an additional insured and that the coverage afforded Landlord will
not be reduced or diminished by reason thereof.
15.2 Subject to reimbursement by Tenant as provided in Article 11 herein,
Landlord shall obtain and keep in force during the term hereof, a policy or
policies of insurance covering loss or damage to the buildings on Landlord's
Parcel, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, and malicious mischief,
together with an endorsement providing for rental income insurance covering a
period of twelve (12) months covering Minimum Rent and all Additional Rent, and,
at Landlord's sole option, Landlord may obtain "difference in conditions"
insurance, including earthquake and flood, subject also to such reimbursements.
15.3 If Tenant shall fail to procure and maintain any insurance policy required
herein, Landlord may procure the same on Tenant's behalf, and the cost of same
shall be payable as Additional Rent within five (5) days after written demand
therefor by Landlord. Tenant's failure to pay such Additional Rent shall
constitute a material breach of this Lease, and Landlord may, without any
further notice, exercise its remedies specified in Paragraph 26 hereof.
16. WAIVER OF SUBROGATION
<PAGE>
Any insurance carried by either party with respect to the Premises and property
contained in the Premises or occurrences related to them shall include a clause
or endorsement denying to the insurer rights of subrogation against the other
party to the extent rights have been waived by the insured prior to occurrence
of injury or loss. Each party, notwithstanding any provisions of this Lease to
the contrary, waives any right of recovery against the other for injury or loss
due to hazards covered by insurance containing such clause or endorsement to the
extent that the injury or loss is covered by such insurance.
17. RELEASE AND INDEMNITY
17.1 Tenant shall indemnify and hold harmless Landlord and the City of Hayward,
its officers, agents and employees, against and from any and all claims,
actions, damages, liability and expenses, including attorneys' fees, arising
from or out of Tenant's use of the Premises or from the conduct of its business
or from any activity, work, or other things done, permitted or suffered by the
Tenant in or about the Premises. Tenant shall further indemnify and hold
Landlord and the City of Hayward, its officers, agents and employees, harmless
from any and all claims arising from any breach or default in the performance of
any obligation on Tenant's part to be performed under the terms of the Lease, or
arising from any act or negligence of the Tenant, or any officer, agent,
employee, guest or invitee of Tenant, and from all costs, damages, attorney's
fees, and liabilities incurred in defense of any such claim of any action or
proceeding brought thereon including any action or proceeding brought against
Landlord by re ason of such claim. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in, upon or about the Premises, from any cause other than
Landlord's negligence. Tenant shall give prompt notice to Landlord in case of
casualty or accidents in the Premises.
17.2 Landlord shall not be liable for injury or damage which may be sustained
by the person, goods, wares, merchandise or property of Tenant, its employees,
invitees or customers, or by any other person in or about the Premises caused by
or resulting from fire, steam, electricity, gas, water or rain which may leak or
flow from or into any part of the Premises, or from the breakage, leakage,
obstruction or other defects of the pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures of the same, whether the said
damage or injury results from conditions arising upon the Demised Premises or
from other sources. Landlord shall not be liable for any damages arising from
any act or neglect of any other tenant of the Shopping Center.
18. INSOLVENCY, ETC. OF TENANT
18.1 The filing of any petition in bankruptcy whether voluntary or involuntary,
or the adjudication of Tenant as a bankrupt or insolvent, or the appointment of
a receiver or trustee to take possession of all or substantially all of Tenant's
assets or an assignment by Tenant for the benefit of its creditors, or any
action taken or suffered by Tenant under any State or Federal insolvency or
bankruptcy act including, without limitation, the filing of a petition for or in
reorganization, or the taking or seizure under levy of execution or attachment
of the Premises or any part thereof, shall constitute a breach of this Lease by
Tenant, and in any one or more of said events Landlord may at its option
terminate this Lease by written notice to Tenant.
18.2 Neither this Lease nor any interest therein or thereunder, nor any estate
thereby created in favor of Tenant, shall be an asset of Tenant in or under any
bankruptcy, insolvency or reorganization proceeding, nor shall any of the same
pass by operation of law under any State or Federal insolvency or bankruptcy law
to any trustee, receiver, or assignee for the benefit of creditors or any other
person whatever without Landlord's express written consent.
18.3 Landlord shall be entitled, notwithstanding any provision of this Lease to
the contrary, upon re-entry of the Premises in case of a breach under this
Article, to recover from Tenant as damages for loss of the bargain resulting
from such breach, and not as a penalty, such amounts as are specified in Article
26, unless any statute governing the proceeding in which such damages are to be
proved shall lawfully limit the amount thereof capable of proof, in which later
event Landlord shall be entitled to recover as and for its damages the maximum
amount permitted under said statute.
19. PERSONAL PROPERTY AND OTHER TAXES
19.1 Tenant shall pay, before delinquency, any and all taxes and assessments,
sales, use, business, occupation or other taxes, and license fees or other
charges whatever levied, assessed or imposed upon its business operations
conducted in the Premises. Tenant shall also pay, before delinquency, any and
all taxes and assessments levied, assessed or imposed upon its equipment,
furniture, furnishings, trade fixtures, merchandise and other personal property
in, on or upon the Premises.
19.2 Tenant shall pay all taxes and assessments levied, assessed or imposed on
its leasehold improvements, regardless of whether such improvements were
installed and/or paid for by Tenant or by Landlord, and regardless of whether or
not the same are deemed to be a part of said building, but excluding only those
improvements to the Premises which are a part of "Landlord's Work" as defined in
Exhibit C hereto and were installed by Landlord.
19.3 Tenant shall pay (or reimburse Landlord therefor forthwith on demand) any
excise tax, gross receipts tax, or any other tax however designated, and whether
charged to Landlord, or to Tenant, or to either or both of them, which is
imposed on or measured by or based on the rentals to be paid under this Lease,
or any estate or interest of Tenant, or any occupancy, use or possession of the
Premises by Tenant. 19.4 Nothing hereinabove contained in this Article shall be
construed as requiring Tenant to pay any inheritance, estate, succession,
transfer, gift, franchise, income or profits tax or taxes imposed upon Landlord.
20. SIGNS AND PROMOTION
20.1 Tenant shall install, maintain and replace on the store, such signs in
accordance with the sign criteria attached hereto as Exhibit D as Tenant may
desire, provided that erection of such signs by Tenant shall first have been
approved by Landlord and by applicable governmental authorities. Tenant shall
make all repairs required by reason of the installation, maintenance and removal
of its signs. Upon the expiration of the lease term, Tenant shall remove its
signs from the Premises and, at its sole cost and expense, repair, paint and/or
replace the building fascia surface where such signs were attached. Tenant shall
have no right to erect a pole sign. Tenant's obligations under this Paragraph
20.1 shall survive the termination of the Lease.
20.2 Tenant shall not place, construct or maintain on the store windows, doors
or exterior walls or roof of the Premises or any interior portions that may be
visible from the exterior of the Premises, any signs, advertisements, names,
trademarks or other similar item without Landlord's consent. Landlord at
Tenant's cost may remove any item so placed or maintained which does not comply
with the provisions of this Paragraph. Landlord hereby consents to the placement
of Tenant's hours of operation on the front door, and to the placement of the
FDIC symbol handicapped symbol and electronic bank account symbol to the extent
required by regulatory agencies
20.3 In the event a freestanding sign or signs identifying the Shopping Center
are erected at the election of Landlord, Tenant shall pay its prorate share of
the cost of erecting, altering, maintaining and replacing said sign. Tenant's
share shall be determined as provided above in Paragraph 11.5.
20.4 During the Term, Landlord shall have the right to establish advertising
and promotion fund (the "Fund") for the sole purpose of utilizing the
contributions to the Fund for advertising and conducting promotional activities
for the benefit of the retail and service tenants of
<PAGE>
the Shopping Center. Tenant shall contribute to the Fund as provided herein. In
addition, Tenant shall use its best efforts to participate with other tenants in
the Shopping Center, at Tenants' cost, in promotional activities organized by
Landlord for the benefit of the tenants at the Shopping Center, including,
without limitation, so-called sidewalk sales, concerts, art displays, and
cooking stations. Landlord reserves the right to establish or terminate said
Fund in its' reasonable discretion.
21. ASSIGNMENT AND SUBLETTING
21.1 Tenant shall not voluntarily,involuntarily, or by operation or law assign,
transfer, hypothecate, or otherwise encumber this Lease or Tenant's interest
therein, and shall not sublet nor permit the use by others of the Premises or
any part thereof without first obtaining in each instance Landlord's written
consent. If consent is once given by Landlord to any such assignment, transfer,
hypothecation or subletting, such consent shall not operate as a waiver of the
necessity for obtaining Landlord's consent to any subsequent assignment
transfer, hypothecation or sublease. Any such assignment or transfer without
Landlord's consent shall be void and shall at Landlord's option, constitute a
material breach of this Lease. This Lease shall not, nor shall any Interest
therein, be assignable as to Tenant's interest by operation of law, without
Landlord's express prior written consent.
21.2 The consent of Landlord required under Paragraph 21.1 above shall not be
unreasonably withheld. Should Landlord withhold its consent for any of the
following reasons, the withholding shall be deemed to be reasonable:
(a) Conflict, incompatibility or duplication of the proposed use with other uses
in the Shopping Center; (b) Financial inadequacy of the proposed sublessee or
assignee; (c) A proposed use or use which would diminish the reputation of the
Shopping Center or the other businesses located therein; (d) A proposed use
whose impact on the common facilities of the other tenants in the Shopping
Center would be disadvantageous.
Tenant acknowledges that Landlord requires the Premises be leased as one (1)
store and therefore there can be no change in the exterior walls or storefront
in the event of a permitted assignment or sublease.
21.3 Each assignee or transferee shall assume and be deemed to have assumed
this Lease and shall be and remain liable jointly and severally with Tenant for
the payment of all rents due hereunder, and for the due performance during the
term of all the covenants and conditions herein set forth by Tenant to be
performed. No assignment or transfer shall be effective or binding on Landlord
unless said assignee or transferee shall, concurrently, deliver to Landlord a
recordable instrument which contains a covenant of assumption by said assignee
or transferee; provided that a failure or refusal to so execute said instrument
shall not release or discharge the assignee or transferee from its liability
aforesaid. 21.4 If Tenant is not a publicly traded corporation, or if Tenant is
an unincorporated association or a partnership, the transfer, assignment, or
hypothecation or any stock or interest in such corporation, association or
partnership in the aggregate or in excess of fifty percent (500/0) shall be
deemed an assignment within the meaning of this Article.
21.5 If Tenant intends to assign this Lease or any interest therein, sublet all
or any part of the Premises, Tenant shall give prior written notice to Landlord
of each such proposed assignment or subletting specifying the proposed assignee
or subtenant and the terms of such proposed assignment or sublease. Landlord
shall, within thirty (30) days thereafter, notify Tenant in writing either, that
(i) it consents (subject to any conditions of consent to such transaction, or
(ii) It elects to cancel this Lease in which event the parties would have no
further obligations to each other except with respect to obligations which arose
prior to the effective date of termination.
21.6 In the event of an approved assignment or subletting pursuant to this
Article 21, Tenant shall assign to Landlord any and all consideration paid to
Tenant directly or Indirectly for the assignment by Tenant of its leasehold
interest, and 100% of any and all subrentals payable by sublessees to Tenant
which are in excess of the minimum monthly rental payable by Tenant hereunder.
21.7 Tenant agrees to reimburse Landlord for Landlord's reasonable costs and
attorneys fees incurred in connection with the processing and documentation of
any requested assignment, transfer, hypothecation or subletting of this Lease
aforesaid.
22. RIGHTS RESERVED BY LANDLORD
Subject to Tenant's security requirements, upon reasonable prior notice, Tenant
shall permit Landlord or its agents to enter the Premises for the purposes of:
(a) Inspection of the Premises and the equipment therein;
(b) Making repairs to the Premises and/or the building of which it is a part;
(c) Showing the Premises to persons wishing to purchase or make a mortgage
loan upon the same; (d) Posting notice of non-responsibility;
(e) Posting "For Lease" signs and showing the Premises to persons wishing to
rent the Premises during the last six (6) months of the term of this Lease.
23. CONSENT OF LANDLORD
Whenever Landlord's consent or approval is required prior to any action under
this Lease, in no event shall Landlord be liable in monetary damages for
withholding its consent or approval unless Tenant proves the same to have been
withheld maliciously or in bad faith.
24. RIGHT OF LANDLORD TO PERFORM
All covenants to be performed by Tenant hereunder shall be performed by Tenant
at its sole cost and expense and without any abatement of any rent to be paid
hereunder. If Tenant shall fail to pay any sum, other than rent, required by
this Lease to be paid by it or shall fail to perform any other act on its part
to be performed, and such failure shall continue beyond the applicable grace
period set forth in Article 26, Landlord may (but shall not be obligated to) and
without waiving or releasing Tenant from any of its obligations, make any such
payment or perform any such other act on Tenant's part to be made or performed
as herein provided. All sums so paid by Landlord and all necessary incidental
costs, shall be payable by Tenant as Additional Rent within five (5) days after
Landlord's written demand therefor. Tenant's failure to pay such Additional Rent
shall constitute a material breach of this Lease, and Landlord may, without any
further notice, exercise its remedies specified in Paragraph 26 hereof.
25. LANDLORD DEFAULT
25.1 If Landlord shall be in default of any covenant of this Lease to be
performed by it, Tenant, prior to exercising any right or remedy it may have
against Landlord on account thereof, shall give Landlord a thirty (30) day
written notice of such default, specifying the nature of such default.
Notwithstanding anything to the contrary elsewhere in this Lease, Tenant agrees
that if the default specified in said notice is of such nature that it can be
cured by Landlord, but cannot with reasonable diligence be cured within said
thirty (30) day period, then such default shall be deemed cured if Landlord
within said thirty (30) day period shall have commenced the curing thereof and
shall continue thereafter with all due diligence to cause such curing to proceed
to completion.
25.2 If Landlord shall fail to cure a default of any covenant of this Lease to
be performed by it and, as a consequence of such uncured default, Tenant shall
recover a money judgment against Landlord, such judgment shall be satisfied
solely out of the proceeds of sale received upon
<PAGE>
execution of such judgment against the right, title and interest of Landlord in
the building and Its underlying realty and out of the rents, or other income
from said property receivable by Landlord, or out of the consideration received
by Landlord's right, title and interest in said property, but neither Landlord
nor any partner or joint venture of Landlord shall be personally liable for any
deficiency.
26. DEFAULT AND REMEDIES
26.1 The occurrence of any of the following shall constitute a material breach
and default of this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the rent required to be paid
by Tenant hereunder where such failure continues for five (5) days after the
same is due;
(b) A failure by Tenant to observe and perform any other provision of this
Lease to be observed or performed by Tenant where such failure continues for
twenty (20) days after written notice thereof from Landlord; provided, that if
the nature of such default is such that the same cannot with due diligence be
cured within said period, Tenant shall not be deemed to be in default if it
shall within said period commence such during and thereafter diligently
prosecutes the same to completion;
(c) The abandonment or vacation of the Premises; or
(d) Any other event herein specified to be a material breach or default under
this Lease.
26.2 In the event of any such material breach or default as aforesaid by
Tenant, then in addition to any and all other remedies available to Landlord at
law or in equity, Landlord shall have the right to immediately terminate this
Lease and all rights of Tenant hereunder by giving written notice to Tenant of
its election so to do. If Landlord shall elect to terminate this Lease, then it
may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder
which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent
which would have been earned after termination and until the time of award
exceeds the amount of such rental loss which Tenant proves could have been
reasonably avoided; plus
(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 the award exceeds the amount of
such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment
proximately caused by Tenant's failure to perform its obligations hereunder or
which, in the ordinary course of affairs, would likely result therefrom, and (e)
At Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted by applicable California law from time to time.
26.3 As used in subparagraphs (a) and (b) above, the "worth at the time of
award" is computed by allowing interest at the rate of ten percent (10%) per
annum. As used in subparagraph (c) above, the "worth at the time of the award"
is computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award plus one percent (1 %).
26.4 In the event of any default aforesaid by Tenant, Landlord shall also have
the right, with or without terminating this Lease, to re-enter the Demised
Premises and remove all property and persons therefrom, and any such property
may be removed and stored in a public warehouse or elsewhere at the cost and for
the account of Tenant.
26.5 If Landlord shall elect to re-enter as above provided or shall take
possession of said Premises pursuant to legal proceedings or pursuant to any
notice provided by law, and if Landlord has not elected to terminate this Lease,
Landlord may either recover all rental as it becomes due or relet the Demised
Premises or any part or parts thereof for such term or terms and upon such
provisions as Landlord, in its sole judgment, may deem advisable and shall have
the right to make repairs to and alterations of the Demised Premises.
26.6 If Landlord shall elect to relet as aforesaid, then rentals received by
Landlord therefrom shall be applied as follows:
(a) To the payment of any indebtedness other than rent due hereunder from
Tenant;
(b) To the payment of all costs and expenses incurred by Landlord in
connection with such reletting;
(c) To the payment of the cost of any alterations of and repairs to the
Premises; and
(d) To the payment of rent due and unpaid hereunder and the residue, if any,
shall be held by Landlord and applied in payment of future rent as the same may
become due and payable hereunder.
In no event shall Tenant be entitled to any excess rental received by Landlord
over and above that which Tenant is obligated to pay hereunder. Should that
portion of such rentals received from such reletting during any month, which is
applied to the payment of rent hereunder, be less than the rent payable
hereunder during that month by Tenant, then Tenant shall pay such deficiency to
Landlord forthwith upon demand, and said deficiency shall be calculated and paid
monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand,
all costs and expenses incurred by Landlord in connection with such reletting
and in making any such alterations and repairs which are not covered by the
rentals received from such reletting.
26.7 No re-entry or taking possession of the Premises by Landlord under this
Article shall be construed as an election to terminate this Lease unless a
written notice of such intention is given to Tenant or unless the termination
thereof be adjudged by a court of competent jurisdiction. Notwithstanding any
reletting without termination by Landlord because of Tenant's default, Landlord
may at any time after such reletting elect to terminate this Lease because of
such default.
26.8 Nothing contained in this Article shall constitute a waiver of Landlord's
right to recover damages by reason of Landlord's efforts to mitigate the damages
to it caused by Tenant's default; nor shall anything in this Article adversely
affect Landlord's right, as In this Lease elsewhere provided, to indemnification
against liability for Injury or damage to persons or property occurring prior to
a termination of this Lease.
26.9 If Landlord shall retain an attorney for the purpose of collecting any
rental due from Tenant, Tenant shall pay the reasonable fees of such attorney
for his services regardless of the fact that no legal proceeding or action may
have been filed or commenced.
26.10 The terms "rent" and "rental" as used herein and elsewhere in this Lease
shall be deemed to be and mean the Minimum Rent, all Additional Rent (including
without limitation the Percentage Rent), rental adjustments and any and all
other sums, however designated, required to be paid by Tenant hereunder.
26.11 Any unpaid rent and any other sums due and payable hereunder by Tenant
shall bear interest at the maximum lawful rate per annum from the due date and
until payment thereof.
26.12 Tenant acknowledges that late payment by Tenant to Landlord of rent will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of such costs being extremely difficult and impracticable to fix. Such costs
include, without limitation, processing and accounting charges, and late charges
that may be imposed on Landlord by the terms of any encumbrance and note secured
by any encumbrance covering the Premises. Therefore, if any installment of rent
due from Tenant is not received by Landlord when due, Tenant shall pay to
Landlord an additional sum of ten percent (10%) of the overdue rent as a late
charge. The parties agree that this late charge represents a fair and reasonable
estimate of the costs that Landlord will incur by reason of late payment by
Tenant.
<PAGE>
27. PRIORITY OF LEASE AND ESTOPPEL CERTIFICATE
27.1 At Landlord's election, this Lease shall be either superior to or
subordinate to any and all trust deeds, mortgages, or other security
instruments, ground leases, or leaseback financing arrangements now existing or
which may hereafter be executed covering the Premises and/or the land underlying
the same or any part or parts of either thereof, and for the full amount of all
advances made or to be made thereunder together with interest thereon, and
subject to all the provisions thereof, all without the necessity of having
further instruments executed by Tenant to effectuate the same provided however,
that if Landlord elects for this Lease to become subordinate to any instrument
not now existing, such subordination shall be contingent upon the execution of a
subordination and non-disturbance agreement by which any mortgagee, beneficiary
or lessor recognizes Tenant's right to quiet enjoyment of the Premises and
agrees that Tenant's possession of the Premises shall not be disturbed so long
as Tenant is not i n default of this Lease. Tenant agrees to execute,
acknowledge and deliver upon request by Landlord any and all documents or
instruments which are or may be deemed necessary or proper by Landlord to more
fully and certainly assure the superiority or the subordination of this Lease to
any such trust deeds, mortgages or other security instruments, ground leases, or
leasebacks. If a subordination and non-disturbance agreement is so executed,
then in the event of a foreclosure sale or similar transfer of Landlord's
interest, this Lease shall continue in full force and effect, and Tenant shall
automatically become the Tenant of Landlord's successor in interest and shall
attorn to said successor in interest. Tenant hereby irrevocably appoints
Landlord as its attorney-in-fact, coupled with an interest to execute and
deliver, for and in the name of Tenant, any document or instrument provided for
in this Article. The words "person" and "persons" as used herein or elsewhere in
this Lease shall mean individuals, partnerships, firms, associations and
corporations.
27.2 Except as expressly provided in subparagraph 27.1, this Lease is made
subject to all existing encumbrances, covenants, restrictions, conditions, and
easements of record. Further, Tenant acknowledges that Landlord may, if it has
not already done so, hereafter enter into and record a Construction, Operation
and Reciprocal Easement Agreement ("REA") with other owners of parcels
comprising the Shopping Center for the purpose of providing for the overall
operation and maintenance of the Shopping Center, including Landlord's Parcel.
If requested to do so by Landlord, Tenant agrees to subordinate this Lease to
said REA and to any amendments thereto, and, in turn, Landlord covenants that
the provisions of the REA will not unreasonably interfere with Tenant's use and
occupancy of the Leased Premises and its conduct of business thereon.
27.3 Tenant shall at any time and from time to time execute, acknowledge and
deliver to Landlord, within ten (10) days after Landlord's request therefor:
(a) A written statement certifying as follows:
(i) That this lease is unmodified and in full force (or if there has been
modification thereof, that the same is in full force as modified and stating the
nature thereof);
(ii) That to the best of its knowledge, there are no uncured defaults on the
part of landlord or matters which, upon the passage of time and the giving of
notice, or both, would constitute a default or breach by tenant (of if any such
default exists, the specific nature and extent thereof);
(iii) No claims or defenses exist on the part of tenant or no events exist that
would constitute a basis for such claim or defense (or if such exist, the
specific nature and extent);
(iv) The date to which any rents and other charges have been paid in advance,
if any;
(v) Such other matters which are reasonably requested by landlord with respect
to the lease and its status, including status of construction;
(b) Any other disclosure or informational document required by a lender of
Landlord in connection with financing, including, without limitation, ERISA
"real-party-in-interest" disclosures, or informational forms of any governmental
authority.
If Tenant shall fail to execute and deliver any such statement or related
document to Landlord within ten (10) days after Landlord's written request
therefor, Landlord may, as Tenant's attorney-in-fact coupled with an interest,
execute said statement for and on behalf of Tenant, and in Tenant's name.
Further, Landlord, at its option, may treat same as a material breach and
default under this Lease.
28. HOLDING OVER
If, without the execution of a new lease or written extension of this Lease, and
with the consent of Landlord, Tenant shall hold over after the expiration of the
term of this Lease, Tenant shall be deemed to be occupying the Premises as a
Tenant from month-to-month, which tenancy may be terminated as provided by law.
During said tenancy, the Minimum Rent payable to Landlord by Tenant shall be one
hundred fifty percent (150%) of the Minimum Rent set forth in Article 3 of this
Lease, unless a different rate is agreed upon, and upon all of the other terms,
covenants and conditions set forth in this Lease so far as the same are
applicable. Provided that if Tenant shall fail to surrender the Premises upon
the termination of this Lease, in addition to any other liabilities to Landlord
arising therefrom, Tenant shall and does hereby agree to indemnify and hold
Landlord harmless from loss or liability resulting from such failure including,
but not limited to, claims made by any succeeding Tenant founded on such
failure.
29. NOTICES
Wherever in this Lease it shall be required or permitted that notice, approval,
advice, consent or demand be given or served by either party to this Lease to or
on the other, the same shall be given or served, and shall not be deemed to have
been duly given or served unless in writing and forwarded by certified or
registered mail, addressed in the case of Tenant to the address specified in
Paragraph 1(p) hereof and in the case of Landlord to the address specified in
Paragraph 1(q) hereof. Notice shall be deemed given when so mailed and
addressed. Either party may change such address by written notice forwarded by
certified mail to the other.
30. LIENS
30.1 Tenant shall pay all costs for work by it or caused to be done by it in
the Premises and Tenant shall keep both said Premises and the Shopping Center
free and clear of all mechanics' liens and other liens on account or work done
for Tenant or persons claiming under it. Tenant agrees to and shall indemnify
and hold Landlord harmless against liability, loss, damage, costs, attorneys'
fees, and any other expenses on account of claims of lien of laborers or
materialmen for work performed or materials or supplies furnished for Tenant or
persons claiming under it. If any such lien shall attach to the Premises,
Landlord's Parcel or the Shopping Center, Tenant shall promptly, and in any
event within twenty (20) days, discharge it as a matter of record. If necessary
to accomplish same, Tenant shall furnish and record a bond to insure the
protection of Landlord, the Premises, Landlord's Parcel, and the Shopping Center
(including all buildings located thereon or of which they form a part) from loss
by virtue of an y such lien.
30.2 Any bond furnished by Tenant pursuant to the provisions of Paragraph
30.11, above shall be a lien release bond issued by a corporation authorized to
issue surety bonds in the State of California in an amount equal to one and
one-half the amount of such claim of lien. The bond
<PAGE>
shall meet the requirements of Civil Code section 3143 and shall provide for the
payment of any sum that the claimant may recover on the claim, together with
said lien claimant's costs of suit if he recovers therein.
30.3 If Tenant shall not have paid a charge for which a mechanics' lien claim
has been filed, and Tenant shall not have discharged same of record within the
time permitted by Paragraph 30.1 above, Landlord may (but shall not be obligated
to) pay said claim and any costs, and the amount so paid, together with
reasonable attorneys' fees incurred in connection therewith shall be payable by
Tenant to Landlord as Additional Rent within five (5) days after written demand
therefor. Tenant's failure to pay such Additional Rent shall constitute a
material breach of this Lease, and Landlord may, without any further notice,
exercise its remedies specified in Paragraph 26 hereof.
30.4 Tenant shall at least ten (10) days prior to commencing any work which
might result in a lien as aforesaid, give Landlord written notice of its
intention so to do to enable Landlord to post, file and record a legally
effective notice of non-responsibility. Landlord or its representatives shall
have the right to enter into the Demised Premises and inspect the same at all
reasonable times, and shall have the right to post and keep posted thereon said
notices of non-responsibility and such other notices as Landlord may deem proper
to protect its interest therein.
31. QUIET ENJOYMENT
Landlord agrees that Tenant, upon payment of the Minimum Rent, Percentage Rent,
Additional Rent, and all other sums and charges required to be paid by Tenant
hereunder, and the due and punctual performance of all of Tenant's other
covenants and obligations under this Lease, shall have the quiet and undisturbed
possession of the Premises.
32. ATTORNEY'S FEES
Should either party hereto institute any action or proceeding in court to
enforce any provision hereof or for damages or for declaratory or other relief
hereunder, the prevailing party shall be entitled to receive from the losing
party, in addition to court costs, such amount as the court may adjudge to be
reasonable as attorneys' fees for services rendered to said prevailing party,
and said amount may be made a part of the judgment against the losing party.
33. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the rules and regulations
attached to this Lease, marked Exhibit E, and all reasonable modifications of
and additions thereto from time to time put into effect by Landlord, provided
that in such event Landlord shall give written notice thereof to Tenant and
further provided that Landlord requires all other tenants of space in the
Shopping Center to also comply with said rules and regulations. Landlord shall
not be responsible to Tenant for the non-performance by any other tenant or
occupant of the building of any said rules and regulations. Landlord agrees to
make all reasonable efforts to cause compliance of all tenants of the Shopping
Center with these rules and regulations.
34. MISCELLANEOUS
34.1 Nothing contained in this Lease shall be deemed or construed as creating a
partnership or joint venture between Landlord and Tenant or between Landlord and
any other party, or cause Landlord to be in any manner responsible for the debts
or obligations of Tenant, or any other party.
34.2 If any provision of this Lease shall be determined to be void or voidable
by any court of competent jurisdiction, such determination shall not affect any
other provision of this Lease and all such other provisions shall remain in
effect. It is the intention of the parties hereto that if any provisions of this
Lease is capable of two constructions, one of which would render the provision
void or voidable and the other of which would render the provision valid, then
the provision shall have the meaning which renders it valid.
34.3 If Tenant hereunder is a corporation, the parties executing this Lease on
behalf of Tenant represent and warrant to Landlord that: they are authorized to
enter into this Lease; this Lease is executed in the usual course of corporate
business of Tenant and that neither the corporate Articles nor Bylaws of Tenant
require the consent of its shareholders thereto; Tenant is a valid and existing
corporation; all things necessary to qualify Tenant to do business in California
have been accomplished prior to the date of this Lease; all franchise and other
corporate taxes have been paid to the date of this Lease; all forms, reports,
fees, and taxes required to be filed or paid by said corporation in compliance
with applicable laws will be filed and paid when due.
34.4 The entire agreement between the parties hereto is set forth In this
Lease, and any agreement hereafter made shall be ineffective to change, modify,
alter or discharge it in whole or in part unless such agreement is in writing
and signed by both said parties. It is further understood that there are no oral
agreements between the parties hereto affecting this Lease, and that this Lease
supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between said parties or
displayed by Landlord to Tenant with respect to the subject matter of this
Lease, and none of the same shall be available to interpret or construe this
Lease. All negotiations and oral agreements acceptable to both parties hereto
have been merged into and are included in this Lease.
34.5 Landlord reserves the absolute right to effect such other tenancies in the
Shopping Center as Landlord shall determine to best promote the interests of the
Shopping Center. Tenant does not rely on the fact nor does Landlord represent
that any specific tenant or number of tenants shall during the term of this
Lease occupy any space in the Shopping Center.
34.6 The laws of the State of California shall govern the validity, performance
and enforcement of this Lease. Although the printed provisions of this Lease
were prepared and drawn by Landlord, this Lease shall not be construed either
for or against Landlord or Tenant, but its construction shall be at all times in
accord with the general tenor of the language so as to reach a fair and
equitable result.
34.7 A waiver of any breach or default shall not be a waiver of any other
breach or default. Landlord's consent to or approval of, any act by Tenant
requiring Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent similar act by
Tenant. The acceptance by Landlord of any rental or other payments due hereunder
with knowledge of the breach of any of the covenants of this Lease by Tenant
shall not be construed as a waiver of any such breach. The acceptance at any
time or times by Landlord of any sum less than that which is required to be paid
by Tenant shall, unless Landlord specifically agrees otherwise in writing, be
deemed to have been received only on account of the obligation for which it is
paid, and shall not be deemed an accord and satisfaction notwithstanding any
provisions to the contrary written on any check or contained in a letter of
transmittal.
34.8 Any prevention, delay or stoppage due to strikes,lockouts, labor disputes,
acts of God, inability to obtain labor or materials or reasonable substitutes
therefore, governmental restrictions, regulations or controls enemy or hostile
governmental action, riot, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of the party obligated to perform, shall
excuse the performance by such party for a period equal to any such prevention,
delay or stoppage, except that Tenant's obligations to pay the Minimum Rent,
Percentage Rent, Additional Rent and any other sums or charges pursuant to this
Lease shall not be affected thereby.
34.9 The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners at the time in question of the Premises, and in
the event of any transfer or transfers of title thereto, Landlord herein named
(and in case of any subsequent transfers or conveyances, the then grantor) shall
be automatically freed and
<PAGE>
relieved from and after the date of such transfer or conveyance of all liability
as respects the performance of any covenants or obligations hereunder of the
part of Landlord to be performed thereafter.
34.10 Upon Landlord's written request Tenant shall promptly furnish to Landlord,
from time to time, financial statements reflecting Tenant's current financial
condition.
34.11 Time is of the essence with respect to the performance of each of the
covenants and agreements of this Lease.
34.12 Each and all of the provisions of this Lease shall be binding upon and
inure to the benefit of the parties hereto and (except as set forth in Paragraph
34.10 above and as otherwise specifically provided elsewhere in this Lease),
their respective personal representatives, successors and assigns, subject at
all times to all provisions and restrictions elsewhere in this Lease respecting
the assignment, transfer, encumbering or subletting of all of any part of the
Premises or Tenant's interest in this Lease.
34.13 Submission of this instrument by or on behalf of Landlord for examination
or execution by Tenant does not constitute a reservation of or option for Lease,
and this instrument shall not be effective as a lease or otherwise until
executed and delivered by both Landlord and Tenant.
34.14 The captions shown in this Lease are for convenience or reference only,
and shall not, in any manner, be utilized to construe the scope or the intent of
any provisions thereof.
34.15 Tenant shall not record this Lease nor any short form memorandum thereof
without Landlord's written consent.
34.16 In the event that the Rent Commencement Date has not occurred within
twelve (12) months after the date hereof, this Lease shall terminate and be of
no further force and effect.
34.17 All agreements herein by Tenant, whether expressed as covenants or
conditions, shall be deemed to be conditions for the purpose of this Lease.
35. FORCE MAJEURE
Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts
of God, inability to obtain labor or materials or reasonable substitutes
therefor, governmental restrictions, governmental regulations, governmental
controls, judicial orders, enemy or hostile governmental action, civil
commotion, fire or other casualty, and other causes (except financial) beyond
the reasonable control of the party obligated to perform, shall excuse the
performance by that party for a period equal to the prevention, delay or
stoppage except the obligations imposed with regard to Fixed Minimum Rent,
Percentage Rent and Additional Rent to be paid by Tenant pursuant to this Lease;
provided the party prevented, delayed or stopped shall have given the other
party written notice thereof within thirty (30) days of such event causing the
prevention, delay or stoppage. Notwithstanding anything to the contrary
contained in this Section 35, in the event any work performed by Tenant or
Tenant's contractor results in a strik e, lockout and/or labor dispute, the
strike, lockout and/or labor dispute shall not excuse the performance by Tenant
of the provisions of this Lease.
36. PARKING
Tenant agrees that Tenant and Tenant's employees and agents will not park their
automobiles in those areas designated for retail customers only. Should there be
any violations of this provision after written notice from Landlord, Tenant
agrees to pay Landlord the sum of Twenty-Five and No/100 Dollars ($25.00) for
each violation, and if the violations persist, Tenant agrees that the offending
automobile may be towed at the expense of Tenant. Upon Landlord's written
request Tenant shall furnish a list of the automobile license numbers of the
cars of Tenant's employees and shall thereafter notify Landlord of any changes
within five (5) days after such changes occur.
37. NON-DISCRIMINATION
Tenant herein covenants by and for Tenant and Tenant's heirs, personal
representatives and assigns and all persons claiming under Tenant or through
Tenant that this Lease is made subject to the condition that there shall be no
discrimination against or segregation of any person or of a group of persons on
account of race, color, religion, creed, sex or national origin in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises
nor shall Tenant or any person claiming under Tenant or through Tenant establish
or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants,
lessees, sublessees, subtenants or vendees on the Premises.
38. BROKERS
Tenant represents and warrants that Tenant has no dealings with any real estate
broker, agent or finder other than the person and/or entity specified in
Paragraph 1(r) in connection with the negotiation or execution of this lease.
Tenant shall indemnify, protect, defend and hold harmless Landlord from
commissions or other compensation or charges claimed by any broker, agent and/or
finder, in connection with this Lease, other than the person and/or entity
specified in Paragraph 1(r).
WITNESS the signatures of the parties hereto, the day and year first above
written.
LANDLORD: Redevelopment Agency of the City TENANT: Metro Commerce Bank
of Hayward
By: By:
Its: Its:
BY: BY:
Its: Its:
ATTEST: Angelina Reyes, City Clerk
ADDENDUM TO SHOPPING CENTER LEASE
B STREET MARKETPLACE
HAYWARD, CALIFORNIA
This Lease Addendum is entered into by and between the Redevelopment Agency of
the City of Hayward (hereinafter, "Landlord"), and Metro Commerce Bank,
(hereinafter, "Tenant"), adding to the lease between the same parties dated
September 7, 2000, as follows:
39. OPTIONS TO EXTEND
First Option: Provided that the Lease is in full force and effect, Tenant is not
in default in the performance of any of the terms and conditions of the Lease,
Tenant has not assigned the Lease unless such assignment has been approved by
Landlord as provided in paragraph 21 1, and
<PAGE>
Tenant is in occupancy for its own use of the entire premises (collectively, the
"Option Conditions"), Tenant shall have the option to extend the term of the
Lease for a period of five (5_) years, subject to the following conditions: (i)
the option shall be exercised by written notice of exercise delivered to
Landlord not earlier than 9 months nor later than 6 months prior to the
expiration of the original Lease Term; and (ii) the Option Conditions shall be
satisfied both at the time the option is exercised and at the commencement of
the option period. In the event the option is timely exercised, the term of the
Lease shall be extended for a period of five (5) years upon all of the terms and
conditions of the Lease, provided that t he initial Minimum Monthly Rent shall
be the fair market rental value of the Premises as of the date Tenant exercises
the option, but in no event less than the rental amount in effect upon
expiration of the initial term.
Second Option: Tenant's Second Option to extend the term of the Lease for a
period of five (5) years shall be subject to the satisfaction of all of the
terms and conditions of the First Option listed above, provided however, that
the option shall be exercised by written notice of exercise delivered to
Landlord not earlier than 15 months nor later than 12 months prior to the
expiration of the First Option period. In addition, the Second Option is further
conditioned upon Tenant providing evidence, satisfactory to Landlord and
certified by Tenant, of the number of daily over-the-counter transactions
(activity count) over the 120 day period immediately preceding Tenant's notice
of exercise. Notwithstanding anything to the contrary contained in the Lease,
Landlord shall have the right to revoke the Second Option within 30 days of
receipt of Tenant's notice if the average daily activity count is less than 170.
In the event the option is timely exercised, the term of the Lease shall be
extended for a period of five (_5) years upon all of the terms and conditions of
the Lease, provided that the initial Minimum Monthly Rent shall be the fair
market rental value of the Premises as of the date Tenant exercises the option,
but in no event less than the rental amount in effect upon expiration of the
first option term.
Determination of Option Rent: The Fixed Minimum Rent payable during the first
year of each option term shall be equal to the Fair Market Rental Value of the
Premises, but in no event less than the rental amount in effect upon expiration
of the preceding term, which amount shall thereafter be adjusted pursuant to
Article 3.2 hereof. If Landlord and Tenant are unable to agree on the Option
Period Rent, Fair Market Rental Value shall be determined as follows:
Each party shall select (and pay the fees of) a disinterested real estate broker
with at least five (5) years of commercial real estate experience in the San
Francisco East Bay Area. Each party shall, within ten (10) business days after
the receipt of notice of request for the determination of Fair Market Rental
Value by brokers, notify the other party of the name and address of the real
estate broker selected by such party. If a party shall fail timely to give such
notice, the broker for the other party shall select the second broker (subject
to the above selection criteria) within ten (10) days after the failure of such
party to give such notice. The two brokers selected shall attempt to determine
the Fair Market Rental Value of the space in question for the term in question.
As used in this Section "Fair Market Rental Value' shall mean the rental rate
per square foot prevailing at the commencement of the period in question under
leases for lease terms equal to the term in question then being entered into for
general retail users of comparable space in the San Francisco East Bay Area,
taking into consideration the economic terms and conditions then relevant in the
marketplace. The decision of each broker shall be in writing and a copy thereof
shall be given to Landlord and Tenant promptly after such decisions are
rendered. In the event that within thirty (30) days after the first of such
notices of request for determination of said Fair Market Rental Value by brokers
is received, the two selected brokers cannot agree upon said Fair Market Rental
Value, then they shall select a third disinterested real estate broker with at
least five (5) years of commercial real estate experience in the San Francisco
East Bay Area. The fees of the third broker shall be borne equally by Landlord
and Tenant. The third broker shall select either the Landlord's broker's opinion
of the Fair Market Rental Value of such space for the balance of the term of the
Lease or the Tenant's broker's opinion of such Fair Market Rental Value.
Until such time as the rent is determined as aforesaid, Tenant shall pay as
Minimum Rent for the space in question, Minimum Rent at a rate which was last in
effect under the Lease, and upon the final resolution of such rent pursuant to
the foregoing, the Tenant shall pay an appropriate amount, if any, to reflect
such resolution.
40. REGULATORY APPROVAL
This Lease is contingent upon Tenant obtaining regulatory approval for a license
to do business at the Premises. If such contingency is not satisfied or waived
by Tenant within thirty (30) days of the execution of this Lease, either party
shall have the right to terminate the Lease upon ten (10) days written notice to
the other party.
41. TENANT IMPROVEMENT ALLOWANCE
Landlord shall provide to Tenant an allowance of $10 per square foot ($34,150)
for the construction and installation in the Premises of Tenant's Work (the
"Tenant Improvement Allowance"), other than the purchase of Tenant's trade
fixtures. All costs of Tenant's Work in excess of the Tenant Improvement
Allowance shall be borne by Tenant. The Tenant Improvement Allowance shall be
payable within fifteen (15) days of Tenant's opening for business provided
Tenant has provided Landlord with a) unconditional and final lien releases or
receipts evidencing Tenant's payment in full from all suppliers and contractors
providing materials or services associated with Tenant's improvements, b) a
Certificate of Occupancy and/or Business License, and c) a certificate of
insurance as required in the Lease.
42. LANDLORD APPROVAL
Any Landlord approval provided for herein is intended as an approval by the
Landlord only in its capacity as landlord in relation to this Lease, and it
shall not be construed as a governmental or regulatory approval by the City of
Hayward or any of its agencies. No Landlord approval shall preclude the City of
Hayward from fulfilling its role in enforcing the planning, building and
life-safety requirements for the property, as defined by the City Municipal Code
or other adopted plans or policies, or by State law.
Landlords Initials Tenant's Initials
2. EXHIBIT "B" LEGAL DESCRIPTION
REAL PROPERTY in the city of Hayward, County of Alameda, State of California,
described as follows: (to be attached)
3. EXHIBIT "C" CONSTRUCTION OBLIGATIONS
Tenant agrees to prepare, or cause to be prepared, and to submit simultaneously
to Landlord and Landlord's architect, within thirty (30) days after the date
that this Lease is fully executed, one set each of fully dimensioned one-eighth
inch (1/8") scale drawings, all in conformity with "Tenant's Construction
Obligation," including, but not limited to, the location of all utilities,
lighting and electrical outlets, partitions, store front, trade fixture plans
and any other specifications which would affect the construction design of the
demised premises. In addition, Tenant shall provide interior elevations showing
placement of displays, fixtures, mirrors and other wall treatments and a layout
of the interior decor which shall include furniture, equipment, materials and
color schemes. All the aforementioned are subject to Landlord's approval are
hereby deemed approved to the extent the final drawings are in accordance with
the schematic drawings approved by Landlord on 6/26/00. Any changes to
"Landlord's Con struction Obligation," as described below, shall be contracted
and paid for by Tenant, or at Tenant's election by Landlord's contractor.
Any Landlord approval provided for herein is intended as an approval by the
Landlord only in its capacity as landlord in relation to this
<PAGE>
Lease, and it shall not be construed as a governmental or regulatory approval by
the City of Hayward or any of its agencies. No Landlord approval shall preclude
the City of Hayward from fulfilling its role in enforcing the planning, building
and life-safety requirements for the property, as defined b the he City
Municipal Code or other adopted plans or policies, or by State law.
In the event that any governmental authority or jurisdiction requires Tenant
improvement plans as above specified, to be signed by an architect licensed in
the state in which this project is located, Tenant shall be required to provide
same.
1. LANDLORD'S CONSTRUCTION OBLIGATION: The construction for which Landlord is
obligated to initially construct and pay for ("Landlord's Work") shall be in
accordance with Plans and Specifications prepared by Tenant's architect and
approved by Landlord (Tenant's approved plans), and shall be limited to the
following:
A. Building Shell - Exterior building walls, roof, foundation and all structural
items in existing condition.
B. Store Front - Standard aluminum and glass store front with entrance doors in
existing condition. Landlord and Tenant hereby agree that the cost of removing
two existing entrance doors pursuant to Tenant's approved plans, and restoring
the storefront to match the existing storefront contiguous to said doors, shall
be shared equally between the parties. In addition, removal of the two reveals
on each of Tenant's sign bands on each elevation nearest the corner of the
building. and related repairs and repainting necessary to repair any damage
caused by such removal shall also be shared equally between the parties.
C. Slab Floor - Concrete floor slab throughout the interior of the Premises.
Such floor shall be on a single plane with a smooth finish, without depressions
or raised areas, provided however, that ramped access shall be provided to the
rear exit door on Watkins Street.
D. Restrooms - Landlord shall furnish two (2) fully handicapped bathrooms per
code requirements located per Tenant's plan as approved by Landlord. Each
bathroom shall include one (1) door with hardware, one (1) light fixture, one
(1) electrical outlet, handicapped hardware, an electrical exhaust fan, one (1)
toilet, toilet accessories, and one (1) lavatory. Walls and ceiling shall be
fire-taped gypsum board. Landlord shall provide floor coverings and wall
finishes as required by code. .
E. Ceiling - Painted 5/8" drywall ceiling in restrooms. Landlord's standard type
suspended T-bar 2 x 4 acoustical ceiling tile throughout balance of ceiling
area. Landlord shall provide ceiling insulation per code requirements throughout
the Premises.
F. Demising Walls - Demising walls, which shall include all walls that define
the perimeter of the Premises, will be metal studs with gypsum wallboard, taped,
textured and ready for paint, and shall include insulation per code
requirements. All paint and wall coverings are Tenant's responsibility.
G. HVAC - Landlord shall provide rooftop gas/electric air-cooled direct-
expansion package units, sized for a standard retail store (approximately 1 ton
per 350 s.f. of demised premises) and in accordance with Title 24 and local code
requirements. HVAC system shall include ducts, grilles and thermostat
H. Gas - On-site and available to pipe to Premises at Tenant's expense.
I. Fire Sprinkler System - Landlord's standard fire sprinkler system grid in
accordance with applicable building codes and city ordinance, with sprinkler
heads up and connection points for downward drops to be installed by Tenant at
Tenant's expense.
J. Electrical: All electrical work not expressly provided for below shall be a
part of Tenant's work.
1) Electrical panel at the rear of the Premises providing 200 amps at 120/208
volts, 3 phase, 4 wire.
2) Convenience outlets (fed from Tenant's panel) located per code in the
demising wall between stores.
3) The necessary conduits, wiring and drop-in 2 x 4 fluorescent light
fixtures in the ceiling of the premise (approximately 1 fixture per 90 s.f.) in
accordance with Title 24 and local code requirements. 4) "J" boxes for two (2)
Tenant signs, one on each building elevation. 5) Exit lights and emergency
lighting as required by code.
K. Telephone - One outlet box located per Tenant's plan as approved by Landlord,
with empty conduit stubbed to above ceiling.
L. Fees 8 Permits - All licenses, fees, permits, taxes and other charges
necessary for Landlord to complete its construction obligation.
2. TENANT'S CONSTRUCTION OBLIGATION: The construction for which Tenant is
obligated to construct and pay for("Tenant's Work") includes, but is not limited
to the following:
A. All interior partitions except around the toilet room
B. Drop walls, curtain walls, light coves, show window platforms.
C. Any wall and floor finishes.
D. Any special ventilation.
E. Any increase in the number or amount over Landlord's standard construction
for water, electrical or sewer service due to special Tenant equipment or
requirements.
F. All store fixtures.
G. All interior and exterior signs. (Exterior size, design and location shall
conform to Landlord's Sign Criteria, Exhibit D, and shall be submitted for
Landlord's and governmental approval before fabrication.)
H. The direct cost of any architectural, engineering and/or construction changes
which were initiated by the Tenant after approval of the preliminary plans.
I. All sprinkler drops to be installed by Tenant.
J. All licenses, fees, permits, connection and meter charges, taxes and all
other charges, excluding any use Permit and use permit fees (which shall be the
Landlord's obligation), necessary for Tenant to construct and open the Premises
for business; and K. All other items of work which are not expressly made a part
of Landlord's work above.
Landlord's Initials Tenant's Initials
4. EXHIBIT "D" TENANT SIGN CRITERIA
Notwithstanding anything to the contrary contained herein, Landlord hereby
approves of Tenant's use of its standard corporate logo colors, subject to all
necessary governmental approvals.
"B" STREET RETAIL SHOPS
SIGNAGE PROGRAM
I. General Guidelines
A. The primary sign for each business shall be within the signage area
above the main entrance.
1. Signs shall be mounted on the horizontal centerline of the signage area, 6
inches from the surrounding stucco band.
2. Signage shall be mounted flush on the building facade. Raceways are
prohibited.
B. Signs shall be constructed of individual channel letters.
1. The plastic face shall be coordinated with the overall building color scheme
and adjacent signage. Colors shall be subtle shades rather than primary colors.
Duplication of color on adjacent signage is prohibited.
2. All returns shall be painted to match the building color.
3. Trim caps shall be white.
4. The typeface style shall be selected by the tenant and approved by the
owner.
<PAGE>
II. Zoning Regulations
A. All signage must conform to the City of Hayward Sign Regulations.
Maximum Area Same as Section 10-7.403(c) All Commercial Districts'.
Maximum Height 6 feet.
Setback 4 feet from all property lines.
Illumination All types in accordance with Section 10-7.308.
Additional Office complex or directory sign: One per complex,
maximum of 20 square feet per face, 40 square feet
total.
(e) CC-C (Central City Commercial), CC-P (Central City Plaza) Districts and
all properties within the Redevelopment Area.
The following regulations apply.to all parcels in the CC-C and CC-P Zoning
Districts and in the Redevelopment Area.
(1) Permitted Signs Wall, window,. awning, projecting, hanging, cheater
marquee signs, monument sins, sidewalk display sins,
scrolling signs outside the Marks Historic District in
the CC-C Zoning District, and signs of historical or
aesthetic significance are permitted.
(2) Prohibited Signs Roof, pole, monument (except service stations, hotels
and motels) animated, scrolling in the Marks Historic
District, revolving, flashing, portable (except A-and T-
frame); painted wall signs or signs that obscure the
detail of building facades. In addition, awnings that
are made of metal, or which are translucent or which
contain interior lighting for illumination are
prohibited.
(3) Colors Sign colors must relate to the color scheme of the
building. No more than three colors shall be used on any
one sign, unless approved by the Director of Community
and Economic Development/Planning Director. In addition,
use of "neon" or "dayglow" colors must be approved by
the Director of Community .and Economic
Development/Planning Director.
(4) Lighting Signs may be illuminated with directional spotlights or
indirect lighting if the effect at night is not
glaringly bright. External lighting is encouraged.
(5) Graphic Design Sign construction and sign copy must be of professional
quality. Primary signage shall be designed to identify a
business rather than advertise a brand-name product.
High contrast between sign, text, and background must be
provided but glaring white sign backgrounds and intense
colors must be avoided. A letter style that is readable
and in scale with the size of the sign frame or
background must be used. If more than one sign is used,
the signs must be compatible in style.
(6) Sign Installation All signs, except window signs,
require a sign permit and building and electrical
permits where required. All signs shall be installed in
a professional manner, avoiding, unsightly guy wires or
other stabling devices. Attachment shall be hidden from
general view and in the least destructive manner
possible. For masonry, attachments shall be embedded
into the mortar, not the brick or stone. All signs and
murals painted on walls shall be covered with
anti-graffiti coating.
(7) Sign Area and Number
(a) Maximum Number. For all establishments, the maximum number of signs
permitted per frontage is 2. The maximum number of signs permitted per
establishment is 4 except when additional sins are approved by the Director of
Community and Economic Development/Planning Director. Temporary window signs,
and Sidewalk display signs do not count toward the total.
(b) Total Area. The total area encompassed by a contrasting color scheme
shall be counted when calculating allowable sign area.
(c) Foothill Boulevard and "A" Street within the CC-C and CC-P Zoning
Districts. The maximum sign area is 2 square feet per linear foot of primary
frontage, and 30 percent of the allowable sign area of the primary frontage is
allowed as the ' sign area for the secondary frontage.
One frontage, which must contain a public entrance, may be counted as primary
frontage. All other building frontages which have exposure to pedestrian or
vehicular traffic are considered secondary frontages.
Only one secondary frontage may be counted for determining maximum sign area for
all secondary frontages. Suns displayed on a single frontage shall be limited to
the area and number that are permitted on that frontage alone.
No establishment shall be permitted more than a total of 200 square feet of sign
area.
(d) Locations Other Than Foothill Boulevard and "A" Street located within the
Redevelopment Area. The maximum sign area is one square foot per linear foot of
primary frontage, and one-half square foot per linear foot of secondary
frontage.
Only one frontage, which contains a public entrance, may be counted as primary
frontage. All other building frontages, which have exposure to pedestrian or
vehicular traffic, are considered secondary frontages.
Only one secondary frontage may be counted for determining maximum sign area
for. all secondary frontages. Sins displayed on a single frontage shall be
limited to the area and number that are permitted on that frontage alone.
<PAGE>
No establishment shall be permitted more than a total of 100 square feet of sign
area per frontage unless approved by the Director of Community and Economic
Development/Planning Director. Each establishment shall be entitled to a minimum
of 30 square feet for the primary frontage.
(8) Sign Types.
(a) Wall signs may be painted on the wall (if approved by the Director of
Community and Economic Development/Planning Director), or be made of metal, wood
(except plywood), plastic, neon or vinyl.
Fluorescent material is prohibited. Signs shall be located no higher than the
cornice or parapet line, whichever is lower.
Wall signs legally erected before July 22, 1986 shall be considered in
conformance if they do not exceed the maximum allowable area by more than 25
percent, and do not extend above the cornice or, parapet line, whichever is
lower, by more than 25 percent of the height of the sign.
(b) Permanent Window signs may include graphics painted on glass,vinyl letters
applied to glass, a clear acrylic panel behind the window, or small neon window
signs and should be white or light in color.
Permanent Window signs shall not occupy more than 25 percent of the total area
of the window.
(c) Projecting signs shall be located no higher than the cornice or parapet
line, whichever is lower, and must be located so as to not obscure any
architectural detail of the facade. A double face projecting sign shall be
considered one sign.
The maximum size of a projecting sign shall be 40 square feet (20 square feet
per side). Projecting signs shall not project more than 3 feet horizontally,
except that along Foothill Boulevard and along "A" Street projecting signs may
project up to 5 feet horizontally. In no case may the sign come within 2 'f,
feet of the curb.
Projecting signs shall be clear of street trees, traffic signals, street
lighting and regulatory signs.
(d) Horizontal hanging signs, suspended from a canopy, awning, or marquee, may
be placed above an entry. A hanging sign shall not exceed 8 square feet in size
(4 square feet per side). Hanging signs erected before July 22, 1986, shall be
considered in conformance if they do Pet exceed the maximum allowable area by
more than 25 percent.
(e) Overhang signs are mounted atop the overhang, parallel to the storefront
and shall not be used in conjunction with wall signs. Overhang signs shall not
exceed 3 feet in height.
(f) Awning signs (ground floor) shall not cover more than 20 percent of the
total surface area of the front awning skirt. The awning sign is limited to the
front skirt of the awning.
Colors and lettering of awning signs shall be compatible with the building
colors, businesses they serve, as well as harmonize with neighboring buildings
and storefronts.
Awning signs legally erected before July 22, 1986 shall be considered in
conformance if they do not exceed the maximum allowable area by more than 25
percent.
(g) Service Station Signs. Each establishment shall be entitled to a maximum of
100 square feet of business identification, sales and service signs. No such
signs shall be freestanding or pole mounted except as provided below.
One freestanding or monument business identification sign is allowed. Such sign
shall not exceed 60 square feet, 30 square feet per face, 15 feet in height or
extend beyond the property line. Such sign shall be included in the 100 square
foot limitation; and any freestanding business identification sign shall
incorporate a decorative base of brick, stucco, wood, or similar material that
matches the primary building material. A double-faced price sign may be
incorporated into or attached to the decorative base. A double-faced price sign
may also be attached to the pole of a conforming freestanding business
identification sign. Such price signs shall not exceed 15 square feet in area
per face.
Additional Signs. One freestanding or monument, doublefaced price sign per
street frontage may be permitted. No sign shall exceed 15 square feet per face.
Other miscellaneous State authorized signs may not exceed the minimum size and
number provided for by the State. Such miscellaneous sins may be wall or pole
mounted. ,
(h) Promotional Temporary Signs.
(i) Paper or Paint Window Signs. Special sale window signs of either paper
or paint, are permitted. Such signs when combined with permanent window signs,
must not occupy more than 25 percent of the total area of the window. These
signs must be of a professional quality.
(ii) Sidewalk Display Signs (such as A-frame signs and sandwich boards) are
permitted in the CC-P Zoning District, on "B" Street between Foothill Boulevard
and Watkins Street, and on Main Street between "A" Street and "C" Street only.
Such signs may be placed on private property, or within the first 18 inches of
public property that is directly in front of the individual business. Such sign
shall not exceed 6 square feet per side and is limited to one per business.
Sidewalk display sign area shall not count toward allowable sign area. A minimum
passage way width of 48 inches must, be maintained along the sidewalk in front
of such sidewalk display sips. The sign shall not project within 2 feet of the
curb interface with vehicles. Such sins shall not be displayed during
non-business hours.
(i) Theater Marquee and Theater Signs.
350 square feet for one screening room or auditorium; plus 50 square feet for
each additional screening room or auditorium in the same development. The total
sign area shall not exceed 1100 square feet. The total sign area is not
permitted on one facade or on one sign and shall compliment the architecture of
the theater. Signs are permitted on all frontages upon approval by the Director
of Community and Economic Development/Planning Director. Theater marquee sins
shall be permitted over the public right-of-way and are permitted to incorporate
design elements such as lights that change colors and/or intensity upon approval
by the Director of Community and Economic Development/Planning Director. Prior
to approval, the Director of Public Works must determine that the lighting on a
marquee would not compromise Traffic safety. A theater marquee may not exceed 45
feet in height. Theater display cases shall not be included in the calculation
of the total permitted sign area. At least two theater display cases are a
llowed. An individual theater display case may not
10-7-37
5. EXHIBIT "E" RULES AND REGULATIONS OF THE SHOPPING CENTER
Tenant agrees to the establishment of, and shall abide by and enforce upon
Tenant's Authorized Representatives, invitees, customers and vendors
<PAGE>
the following Rules and Regulations, as may be amended from time to time in
Landlord's sole discretion:
1. Window Signs. Tenant shall not install any window sign, door signs, or
advertising media, window or door lettering without Landlord's prior written
consent.
2. Storage. Tenant shall not use any portion of the Premises for storage or
other services except as customary for Tenant's operation in the Premises in
accordance with the use provisions of the Lease.
3. Walkways. No person shall use any walkway or mall except as a means of
pedestrian egress from or ingress to parts of the Shopping Center. Such use
shall be in an orderly manner in accordance with directional or other signs or
guides installed by Landlord. No walkway or mall shall be used for other than
pedestrian travel.
4. Common Area. No person shall use any part of the CommonAreas for use in
connection with the conduct of business except for the specific purpose for
which permission to use such area may be given in Landlord's sole discretion.
Service corridors shall not be used for the storage of materials, merchandise,
garbage or refuse.
5. Deliveries. Except for small parcel deliveries, each Tenant shall use such
Tenant's best efforts to cause all trucks servicing such Tenant's premises to
load and unload at such hours in the areas and through the entrances as may be
designated by Landlord. Tractor trailers, which must be unhooked or parked, are
prohibited. Forklift trucks, tow trucks or any other powered machines for
handling freight shall be used only in such manner and such areas of the
Shopping Center and the Common Areas as may be approved in writing by Landlord.
6. Condition of Premises. The Premises, including vestibules, entrances,
doors, fixtures, windows, and plate glass shall be maintained in a safe, neat,
and clean condition.
7. Removal of Trash.All trash, refuse, and waste materials shall be regularly
removed from the Premises before the hours the Shopping Center opens and unit
removal shall be stored: (a) in adequate containers, which containers shall be
located so as not to be visible to anyone in the Shopping Center; and (b) so as
not to constitute any health or fire hazard or nuisance to any occupant. No
burning of trash, refuse, or waste materials shall be permitted.
8. Plumbing Facilities. No foreign substances of any kind shall be placed in
the plumbing system, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by such Tenant who,
or whose Authorized Representatives, or invitees shall have caused it.
9. Dwelling. Tenant shall not permit or suffer any portion of the Premises or
the Common Areas to be used for lodging purposes.
10. Pets. No pets shall be allowed in the Premises or in the Common Areas.
11. Displays. No part or parts of the Common Areas, including, without
limitation, sidewalks, mall area, light poles, walkways, glass storefronts, show
windows or storefronts shall be used to display, store, or place any
merchandise, equipment, devices, signs, printed material, placards, stickers,
emblems, or informational mail material. Landlord shall have the right to remove
any such materials without notice to Tenant.
12. Boundaries for Doing Business. Under no circumstances shall there be any
sale of merchandise or display of merchandise outside the defined boundaries of
the Premises, in the Common Areas, including specifically, sidewalk sales. No
sale of merchandise by tent sale, sidewalk sale, truckload sale, or the like
shall be permitted in the Common Areas.
13. Unauthorized Activities. No person shall in or on any part of the Common
Areas:
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 except for
material approved by Landlord;
c. Distribute any circular, booklet, handbill, placard, or other material;
d. Solicit membership in any organization, group, or association or
contribution for any purpose;
e. Parade, patrol, picket, demonstrate, rally, or engage in any conduct
that might tend to interfere with or impede the use of any of the Common Areas
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 of the Common Areas for any purpose when none of the retail
establishments within the Shopping Center are open for business or employment;
g. Use any sound-making device of any kind or create or produce in any manner
noise or sound that is at Landlord's sole discretion annoying, unpleasant, or
distasteful to occupants or permittee;
h. Deface, damage, or demolish any sign, light standard or fixture,
landscaping material, or other improvement within the Common Areas or the
property of customers, business invitees, or employees situated within the
Common Areas; or
i. Erect any sign, antenna, aerial or other device on the roof or exterior
wall of the Premises or the Shopping Center without first obtaining in each
instance written consent from Landlord. Any sign, antenna, aerial or device
installed without such written consent shall be subject to removal by Landlord
at Tenant's expense without notice at any time.
14. Landlord's Remedies. Landlord shall have the right to remove, exclude or
restrain (or take legal action to do so) any unauthorized person from, or from
coming upon, the Common Areas or any portion thereof, and to prohibit, abate,
and recover damages arising from any unauthorized act whether or not such act is
in express violation of the rules and regulations set forth above.
15. Special Electrical Installations. If Tenant requires telegraphic,telephonic,
burglar alarm or similar services, it shall first obtain, and comply with,
Landlord's instructions in their installation.
16. Flooring: Weight Limitations and Noise. Tenant shall not place a load upon
any floor that exceeds the load per square foot that such floor was designed to
carry and which is allowed by law. Landlord shall have the right to prescribe
the weight, size and position of all equipment, materials, furniture or other
property brought into the premises. Heavy objects shall stand on such platforms
as determined by Landlord to be necessary to properly distribute the weight.
Business machines and mechanical equipment belonging to Tenant which cause noise
or vibration that may be transmitted to the structure of Tenant's store or to
any space therein to such a degree as to be objectionable to Landlord or to any
Tenant shall be placed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of the Tenant's
store must be acceptable to Landlord. Landlord will not be responsible for loss
of, o r damage to, any such equipment or other property from any cause, and all
damage done to the Building by maintaining or moving such equipment or other
property shall be repaired at the expense of Tenant.
17. Nails. Floor Coverings. Except as approved by Landlord, Tenant shall not
mark, drive nails, screw or drill into the partitions, woodwork or plaster or in
any way deface the premises. Tenant shall not cut or bore holes for wires.
Tenant shall not affix any floor covering to the floor of the premises in any
manner except as approved by Landlord. Tenant shall repair any damage resulting
from noncompliance with this rule.
18. Vending Machines. Tenant shall not install, maintain or operate upon the
premises or in any common areas under the exclusive control of Landlord any
vending machine or video games without Landlord's prior written consent.
19. Limitations. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Center.
20. Landlord's Right to Amend. Landlord reserves the right to make such other
and reasonable rules and regulations as in its judgment may from time to time be
needed for safety and security, for care and cleanliness of the Center and for
the preservation of good order therein. Tenant agrees to abide by all such rules
and regulations hereinabove stated and any additional rules and regulations
which are adopted.
21. Tenant's Observance of Rules.Tenant shall be responsible for the observance
of all the foregoing rules by Tenant's employees, agents, clients, customers,
invitees and guests.
22. Intent. 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 Areas 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 reserves the right to amend, modify, or supplement these
Rules and Regulations as in Landlord's judgment may be necessary for the safety,
cleanliness, preservation of order, and the efficient operation of the Common
Areas. A copy of the Common Areas Rules and Regulations, as the same are from
time to time amended, shall be posted at the Management office of Landlord, in
the event of any conflict between these Rules and Regulations and the provisions
of the Lease, the provisions of the Lease shall control.
<PAGE>
INITIALS:
Landlord:
Tenant:
