LEASE AGREEMENT
BY AND BETWEEN
CITY OF ALAMEDA,
a charter city and municipal corporation
AS LANDLORD
and
RAIN INDUSTRIES, INC.
a Delaware corporation
AS TENANT
TABLE OF CONTENTS
PAGE
i
1. DEMISE. ...............................................................................................................................1
2. PREMISES. ............................................................................................................................1
2.1 Premises ...................................................................................................................1
2.2 Land and Parking .....................................................................................................1
2.3 Common Areas ........................................................................................................2
2.4 Possession ................................................................................................................2
2.5 Landlord’s Reserved Rights .....................................................................................2
3. TERM. ..................................................................................................................................3
3.1 Term .........................................................................................................................3
3.2 Delay and Delivery ..................................................................................................3
3.3 Option to Renew .................................................... Error! Bookmark not defined.
4. RENT. ...................................................................................................................................3
4.1 Base Rent .................................................................................................................3
4.2 Additional Rent ........................................................................................................4
4.3 Late Charge ..............................................................................................................4
4.4 Interest......................................................................................................................4
5. OPERATING EXPENSES AND TAXES. ...................................................................................4
5.1 Definitions................................................................................................................4
5.2 Determination and Payment of Operating Expenses and Taxes ..............................6
6. USE; COMPLIANCE WITH LAWS. .........................................................................................6
6.1 Use ...........................................................................................................................6
6.2 Compliance with Laws ............................................................................................7
6.3 Compliance with Restrictions ..................................................................................7
6.4 Use Permit ................................................................................................................7
7. SECURITY DEPOSIT. ............................................................................................................8
8. UTILITIES. ............................................................................................................................8
8.1 Payments for Utilities and Services .........................................................................8
8.2 No Liability of Landlord ..........................................................................................9
9. PERSONAL PROPERTY AND POSSESSORY INTEREST TAXES. .............................................9
9.1 Tenant’s Tax Obligation ..........................................................................................9
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9.2 Personal Property Taxes ..........................................................................................9
9.3 Possessory Interest Taxes ........................................................................................9
9.4 Payment....................................................................................................................9
10. ALTERATIONS. ...................................................................................................................10
10.1 Landlord Consent Required ...................................................................................10
10.2 Alterations ..............................................................................................................10
10.3 Excavations ............................................................................................................11
10.4 Liens .......................................................................................................................12
11. MAINTENANCE AND REPAIR OF PREMISES. ......................................................................12
11.1 Maintenance and Repair by Tenant .......................................................................12
11.2 Maintenance and Repair by Landlord ....................................................................12
12. ENVIRONMENTAL PROTECTION PROVISIONS. .................................................................13
12.1 Hazardous Materials ..............................................................................................13
12.2 Reportable Uses Required Consent .......................................................................13
12.3 Remediation Obligations .......................................................................................14
12.4 Environmental Permits...........................................................................................14
12.5 Landlord’s Inspection Right ..................................................................................15
12.6 Hazardous Materials Handling Plan ......................................................................15
12.7 Hazardous Materials Indemnity .............................................................................16
13. ASSIGNMENT AND SUBLETTING. .......................................................................................16
13.1 Landlord Consent Required ...................................................................................16
13.2 Landlord Recapture ................................................................................................16
13.3 Reasonable Consent ...............................................................................................17
13.4 Transfer Premium ..................................................................................................17
13.5 Tenant Affiliates ....................................................................................................17
13.6 No Release .............................................................................................................18
13.7 Expenses and Attorneys’ Fees ...............................................................................18
13.8 Limitations on Transfer Reasonable ......................................................................18
14. INDEMNITY AND WAIVER OF CLAIMS. .............................................................................19
14.1 Tenant Indemnification ..........................................................................................19
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14.2 Waiver of Claims ...................................................................................................19
14.3 Survival/No Impairment ........................................................................................19
15. INSURANCE. .......................................................................................................................20
15.1 Tenant’s Insurance .................................................................................................20
15.2 Requirements For All Policies ...............................................................................21
15.3 Certificates of Insurance ........................................................................................21
15.4 Landlord’s Insurance .............................................................................................21
16. DAMAGE OR DESTRUCTION. .............................................................................................21
16.1 Definitions..............................................................................................................21
16.2 Partial Damage - Insured Loss ...............................................................................22
16.3 Partial Damage - Uninsured Loss ..........................................................................23
16.4 Total Destruction ...................................................................................................23
16.5 Damage Near End of Term ....................................................................................23
16.6 Abatement of Rent .................................................................................................24
17. CONDEMNATION. ...............................................................................................................24
18. DEFAULT. ...........................................................................................................................25
18.1 Events of Default ...................................................................................................25
18.2 Remedies ................................................................................................................25
18.3 No Waiver ..............................................................................................................26
18.4 Waiver of Redemption, Reinstatement, or Restoration .........................................26
18.5 Remedies Cumulative ............................................................................................27
18.6 Landlord’s Right to Perform Tenant’s Obligations ...............................................27
18.7 Severability ............................................................................................................27
19. LIMITATION OF LIABILITY. ...............................................................................................27
20. SURRENDER OF PREMISES. ................................................................................................28
21. HOLDING OVER. ................................................................................................................28
22. MORTGAGES. .....................................................................................................................28
22.1 Subordination to Mortgages ...................................................................................28
22.2 Mortgage Protection...............................................................................................29
23. TENANT’S ESTOPPEL CERTIFICATE. ................................................................................29
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24. RELOCATION. ................................................................. ERROR! BOOKMARK NOT DEFINED.
25. NOTICE. .............................................................................................................................29
26. LABOR PROVISIONS. ..........................................................................................................30
26.1 Equal Opportunity ..................................................................................................30
26.2 Convict Labor ........................................................................................................30
26.3 Prevailing Wages and Related Requirements ........................................................30
27. MISCELLANEOUS. ..............................................................................................................31
27.1 Governing Law ......................................................................................................31
27.2 Severability ............................................................................................................31
27.3 Attorneys’ Fees ......................................................................................................31
27.4 Force Majeure ........................................................................................................31
27.5 Sale .........................................................................................................................31
27.6 Signs .......................................................................................................................32
27.7 Brokers ...................................................................................................................32
27.8 Access by Landlord................................................................................................32
27.9 Waiver of Right to Jury Trial .................................................................................32
27.10 Recordation ............................................................................................................33
27.11 Article and Section Titles.......................................................................................33
27.12 Authority ................................................................................................................33
27.13 Quiet Possession ....................................................................................................33
27.14 Asbestos Notification for Commercial Property Constructed Before 1979 ..........33
27.15 Lead Warning Statement........................................................................................34
27.16 OFAC Certification ................................................................................................34
27.17 Certified Access Specialist Disclosure ..................................................................34
27.18 Time of the Essence ...............................................................................................35
27.19 Entire Agreement ...................................................................................................35
27.20 Rules and Regulations............................................................................................35
27.21 Financial Statement ................................................................................................35
27.22 Relocation Benefits ................................................................................................35
27.23 Alameda NAS Historic District .............................................................................35
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27.24 Subdivision and Development of Property ............................................................35
27.25 Environmental and Planning Documents...............................................................36
27.26 Counterparts ...........................................................................................................36
INDEX OF EXHIBITS
Exhibit
A PREMISES
A-1 LAND
A-2 PARKING AREA
A-3 COMMON AREAS
B COMMENCEMENT LETTER
C ACKNOWLEDGMENT OF RECEIPT
D ENVIRONMENTAL QUESTIONNAIRE
E RULES AND REGULATIONS
2 LEASE AGREEMENT
BASIC LEASE INFORMATION
Lease Date: Dated as of October 12, 2022 for reference purposes only Landlord: City of Alameda,
a charter city and municipal corporation
Landlord’s Address: City of Alameda
Alameda City Hall
2263 Santa Clara Ave
Alameda, CA 94501
Tel: (510) 748-4509
Attn: City Manager
Notice Copy to:
RiverRock Real Estate Group, Inc., as Agent for
City of Alameda
950 W. Mall Square, suite 239
Alameda, CA 94501
Tel: (510) 749-0304
Tenant: Rain Industries, Inc., a Delaware corporation
Tenant’s Address: 490 Chadbourne Rd, STE A130, Fairfield, CA, 94534 Premises: Those certain premises located at 2175 Monarch Street (Building 19), consisting of an approximately 16,888 rentable square foot office building and 3,993 square foot shed, for a total of approximately 20,881 rentable square feet in two buildings as depicted in Exhibit A.
Building: 19
Length of Term: One hundred twenty (120) months
3 Estimated Commencement
Date:
January 1, 2023
Estimated Expiration Date: December 31, 2033
Extension Option: None
Base Rent: Months Monthly Base Rent
1 - 12 $31,321.50
13 – 24 $32,417.75
25 – 36 $33,552.37
37 – 48 $34,726.71
49 – 60 $35,942.14
61 – 72 $37,200.12
73 – 84 $38,502.12
85 – 96 $39,849.69
97 – 108 $41,244.43
109 – 120 $42,687.99
Taxes and Utilities: Tenant shall pay all costs for services and utilities to the Premises, as defined in the Lease. Tenant shall pay all taxes (including possessory interest taxes) levied on or against the Premises or its personal property.
Tenant’s Share: 100%
Security Deposit: $31,321.50
Permitted Use: Engineering, research and development, flight operations management, and office space for use as company headquarters.
4 Parking: Tenant shall have the right, on a non-exclusive basis, in common with other tenants, to have its employees and visitors park in the paved areas adjacent to the Buildings as identified as the Parking Areas on Exhibit A-2 attached hereto, as further set forth in Section 2.2 herein below
Brokers: Cushman & Wakefield (Landlord Broker)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between CITY OF ALAMEDA, a charter city and municipal corporation (“Landlord”) and RAIN INDUSTRIES, INC., a Delaware corporation (“Tenant”). The Basic Lease Information, the Exhibits and this Lease Agreement are and shall be construed as a single instrument and are referred to herein as the “Lease”.
1. DEMISE.
In consideration for the rents and all other charges and payments payable by Tenant, and for the agreements, terms and conditions to be performed by Tenant in this Lease, and subject to City Council approval, Landlord does hereby lease to Tenant and Tenant does hereby hire and take from Landlord, the Premises described below, upon the agreements, terms and conditions of this Lease for the Term hereinafter stated.
2. PREMISES.
2.1 Premises. The Premises demised by this Lease are as specified in the Basic Lease Information. Said Premises are located on property commonly referred to as the former Naval Air Station Alameda (“Property”). The Premises have the address and contain the square footage specified in the Basic Lease Information; provided, however, that any statement of square footage set forth in this Lease is an approximation which Landlord and Tenant agree is reasonable and no economic terms based thereon shall be subject to revision whether or not the actual square footage is more or less.
2.2 Land and Parking. Provided that Tenant shall not be in Default under the terms and conditions of this Lease, in addition to the Premises, Landlord grants to Tenant a license to use the land area appurtenant to the Premises as generally depicted on Exhibit A-1 attached hereto (“Land”). Landlord further grants Tenant a license for Tenant and its employees, agents, suppliers, customers and patrons the right to use those portions of the Land designated on Exhibit A-2 for parking purposes (the “Parking Area”). Tenant may also use the Parking Area for the loading and unloading of trucks shipping items to and from the Premises. Landlord shall not be required to enforce Tenant’s rights to use any parking spaces on the Parking Area.
Landlord reserves the right, from time to time, to stripe, restripe or otherwise designate those areas of the Land (exclusive of the Parking Area) which may be used for parking purposes.
Except as otherwise authorized by Landlord through a validly-issued occupancy permit or other appropriate entitlement, the Land or Parking Area shall not be utilized for the storage (beyond 72 hours), repair or maintenance of any vehicles. Should Tenant or its agents, employees or invitees use the Land or Parking Area or any portion thereof in violation of this Section 2.2, Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to tow away any vehicle involved and charge the cost of towing and storage to Tenant, which cost shall be immediately payable upon demand by Landlord as Additional Rent. Neither Landlord nor any Landlord Related Party (as defined in Section 14.1 below) shall be liable for:
(a) loss or damage to any vehicle or other personal property parked or located upon or within the Land or Parking Area, whether pursuant to this license or otherwise and whether caused by fire, theft, explosions, strikes, riots, or any other cause whatsoever; or (b) injury to or death of any
2 person in, about or around any parking spaces or any portion of the Land or Parking Area or any vehicles parked thereon whether caused by fire, theft, assault, explosion, riot or any other cause whatsoever and Tenant hereby waives any claims for, or in respect to, the above. Tenant shall not assign any of its rights under this Section 2.2 except in connection with an assignment of Tenant’s interests in the Lease or a sublease in accordance with Article 13 below and in the event an attempt to assign is made, it shall be void. Landlord shall have no maintenance obligations for the Land or Parking Area and all provisions of this Lease concerning Tenant’s rights and obligations governing its use and occupancy of the Premises that are not inconsistent with this Section 2.2 shall be applicable to the Land and Parking Area. In addition to the foregoing, if Tenant desires storage rights or other such uses of the Land, Tenant shall provide a narrative written description and plans showing such uses for Landlord’s review and approval. If Tenant obtains Landlord’s approval for outside storage or other uses, the same shall be properly screened.
2.3 Common Areas. In addition to the Premises, and subject to the rules and regulations attached hereto as Exhibit F, Tenant shall have the non-exclusive right, in common with all other parties occupying the Building, to use the areas designated by Landlord as depicted in Exhibit A-3 (the “Common Areas”). The use of the Common Areas shall be for the non- exclusive use of Tenant and Tenant’s employees, agents, suppliers, customers and patrons, in common with Landlord and all other tenants of the Building and such other persons to whom Landlord has previously granted, or may hereinafter grant, rights of usage. Tenant shall not be entitled to use the Common Areas for storage of goods, vehicles, refuse or any other items.
Landlord reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time in its sole discretion. If Tenant shall use any of the Common Areas for storage of any items, Tenant shall pay all fines and other charges imposed upon either Landlord or Tenant by any fire, building or other regulatory body, and Tenant shall pay all costs incurred by Landlord to clear that portion of the Common Areas so used by Tenant and dispose of such items.
2.4 Possession. Tenant accepts the Premises in “AS IS” “WITH ALL FAULTS” condition and configuration without any representations or warranties by Landlord, and subject to all matters of record and all applicable laws, ordinances, rules and regulations, with no obligation of Landlord to make alterations or improvements to the Premises. Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the suitability of the Premises, Building, Parking Area, or infrastructure for the conduct of Tenant’s business. Landlord shall not be liable for any latent or patent defects in the Building, Parking Area or Premises. Tenant shall be responsible for requesting an inspection and obtaining a Certificate of Occupancy from the City of Alameda. This shall include, but is not limited to any necessary fire sprinkler upgrades, electrical service upgrades, compliance with the ADA (as defined at Section 6.2 below), and any other requirements mandated by the Certificate of Occupancy inspection.
2.5 Landlord’s Reserved Rights. Landlord hereby reserves the right, and at any time and from time to time, without the same constituting an actual or constructive eviction, to make alterations, additions, repairs, improvements to or in all or any part of the Building, and Common Areas within and around the Building and to change the arrangement and/or location of entrances or passageways, doors and doorways, corridors, elevators, stairs, toilets and other public parts of
3 the Building and parking areas, drive isles, landscaping, curb cuts and paved and unpaved portions of the exterior Common Areas. Without limiting the foregoing, Landlord reserves the right from time to time to install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires, meters and equipment for services to the Premises or other part of the Building which are above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas of the Building which are located within the Premises or located elsewhere in the Building. In connection with any of the foregoing activities, Landlord shall use reasonable efforts to minimize any interference with Tenant’s use of the Premises and shall not, without the prior written approval of Tenant, (a) materially change the location, size or configuration of the Premises; or (b) do anything which would have a material and adverse effect on access to the Premises, or ingress and egress to the Premises. No rights to any view or to light or air over any property, whether belonging to Landlord or any other person, are granted to Tenant by this Lease.
3. TERM.
3.1 Term. The term of this Lease (“Term”) shall be for the period specified in the Basic Lease Information, commencing on the later of (a) the Estimated Commencement Date or (b) one (1) day after this Lease has been approved by the City Council, at its sole and absolute discretion, the date of which approval shall be deemed to be the effective date of an ordinance approving this Lease as required by the City Charter (“Commencement Date”). This Lease shall terminate at midnight on the last day of the ____________ (____) full calendar month following the Commencement Date (“Expiration Date”), unless sooner terminated or extended as hereinafter provided. Promptly following the Commencement Date, Landlord and Tenant shall enter into a letter agreement substantially in the form attached hereto as Exhibit B, specifying and confirming the Commencement Date and the Expiration Date; if Tenant fails to execute and deliver such letter agreement to Landlord within ten (10) business days after Landlord’s delivery of the same to Tenant, said letter agreement as completed by Landlord will be deemed final and binding upon Tenant.
3.2 Delay and Delivery. If for any reason Landlord has not delivered to Tenant possession of the Premises by the Estimated Commencement Date set forth in the Basic Lease Information, this Lease shall remain in effect and Landlord shall not be liable to Tenant for any loss or damage resulting therefrom.
4. RENT.
4.1 Base Rent.
(a) Generally. From and after the Commencement Date,
Tenant shall pay to Landlord, in advance of the first day of each calendar month, without any setoff or deduction and without further notice or demand, the monthly installments of rent specified in the Basic Lease Information (“Base Rent”). One full installment of Monthly Base Rent shall be due and payable on the date of execution of this Lease by Tenant and shall be applied to the first full calendar month for which Monthly Base Rent is due. If the
4 Commencement Date should be on a date other than the first day of a calendar month, the Monthly Base Rent installment paid for any fractional month during the Term shall be prorated based upon a thirty (30) day calendar month. Upon execution of this Lease, Tenant shall also pay to Landlord the amount of the Security Deposit as specified in the Basic Lease Information. (b) Pre-payment of Initial 12 Months of Base Rent. Prior to Landlord’s execution of this Lease, Tenant shall deliver to Landlord the sum of Three Hundred Seventy-Five Thousand Eight Hundred Fifty-Eight and 00/100 Dollars ($375,858.00) to be applied to Monthly Base Rent for Months 1 through 12 of the Term (the “Prepaid Rent”). Said Prepaid Rent shall be held by Landlord in an account known as the “Prepaid Rent Account”.
All Prepaid Rent shall earn interest at the Local Agency Investment Rate as reported quarterly by the California State Treasurer, and such earned interest shall be added to the amount of the Prepaid Rent, for the benefit of Tenant.
4.2 Additional Rent. As used in this Lease, the term “Additional Rent” shall mean all sums of money, other than Base Rent, that are due and payable by Tenant under the terms of this Lease including, but not limited to, Tenant’s share of Utilities in accordance with Article 8 of this Lease. The term “Rent,” as used herein, shall mean all Base Rent, Additional Rent and all other amounts payable hereunder from Tenant to Landlord. Unless otherwise specified herein, all items of Rent other than Base Rent shall be due and payable by Tenant on or before the date that is thirty (30) days after billing by Landlord.
4.3 Late Charge. Other remedies for non-payment of Rent notwithstanding, if any Monthly Base Rent installment or Additional Rent is not received by Landlord on or before the fifth (5th) day following the due date, or any payment due Landlord by Tenant which does not have a scheduled date is not received by Landlord on or before the thirtieth (30th) day following the date Tenant was invoiced for such charge, a late charge of five percent (5%) of such past due amount shall be immediately due and payable as Additional Rent.
4.4 Interest. Any installment of Rent and any other sum due from Tenant under this Lease which is not received by Landlord within five (5) days from when the same is due shall bear interest from the date such payment was originally due under this Lease until paid at the lesser of: (a) an annual rate equal to the maximum rate of interest permitted by law, or (b) ten percent (10%) per annum. Payment of such interest shall not excuse or cure any Default by Tenant.
5. OPERATING EXPENSES AND TAXES.
5.1 Definitions. For purposes of this Article 5, the following terms shall have the meanings hereinafter set forth:
(a) Tenant’s Share shall mean the percentage figure so
specified in the Basic Lease Information. The rentable area of the Premises specified in the Basic Lease Information is conclusive and binding upon Tenant. Tenant’s Share has been computed by dividing the rentable area of the Premises by the total rentable area of the Building.
In the event that either the rentable area of the Premises or the total rentable area of the Building is changed or remeasured by Landlord (which Landlord shall have the right to do from time to
5 time), Tenant’s Share and the rentable area of the Premises and Building will be appropriately adjusted; and, as to the Tax and Expense Year in which such change occurs, for purposes of this Article 5, Tenant’s Share shall be determined on the basis of the number of days during such Tax and Expense Year that each such percentage is applicable. (b) Tax and Expense Year shall mean each twelve (12)
consecutive month period commencing July 1st and ending on June 30th of each year or partial year during the Term, provided that Landlord, upon notice to Tenant, may change the Tax and Expense Year from time to time (but not more frequently than once in any twelve (12) month period) to any other twelve (12) consecutive month period and, in the event of any such change, Tenant’s Share of Taxes and Expenses shall be equitably adjusted for the Tax and Expense Years involved in any such change.
(c) Taxes shall mean all taxes, assessments, fees, impositions, assessments and charges levied (if at all) upon or with respect to the Building, Land, or Common Areas, any personal property of Landlord used in the operation of the Building, Common Areas, Land or Landlord’s interest in the Building, Common Areas or Land, other than Personal Property Taxes or Possessory Interest Taxes which are the subject of Article 9. Taxes shall include, without limitation and whether now existing or hereafter enacted or imposed, all general real property taxes, all general and special bonds and assessments, all charges, fees and levies for or with respect to transit, housing, police, fire, flood control, infrastructure, or other governmental or quasi-governmental services or purported benefits to or burdens attributable to the Land or Building or any occupants thereof, all service payments in lieu of taxes, and any tax, fee or excise on the act of entering into this Lease or any other lease of space in the Building or any occupants thereof, on the use or occupancy of the Building, on the rent payable under any lease or in connection with the business of renting space in the Building, that are now or hereafter levied or assessed against Landlord or the Building by the United States of America, the State of California, the City of Alameda, or any other political or public entity, and shall also include any other tax, fee or other excise, however described, that may now or hereafter be levied or assessed as a substitute for, or as an addition to, in whole or in part, any other Taxes, whether or not now customary or in the contemplation of the parties on the date of this Lease.
Notwithstanding the foregoing, in the event Landlord has the right to elect to have assessments amortized over different time periods, Landlord will elect (or will charge such assessment through to Tenant as if Landlord had so elected) to have such assessment amortized over the longest period permitted by the assessing authority, and only the amortized portion of such assessment (with interest at the lesser of the actual interest rate paid by Landlord or the then maximum rate of interest not prohibited or made usurious by Law) shall be included in Taxes on an annual basis. Taxes shall not include any franchise, transfer or inheritance or capital stock taxes, or any income taxes measured by the net income of Landlord from all sources, unless due to a change in the method of taxation any such taxes are levied or assessed against Landlord as a substitute for, or as an addition to, in whole or in part, any other tax that would otherwise constitute a Tax. Taxes shall also include reasonable legal fees and other costs and disbursements incurred by Landlord in connection with proceedings to contest, determine or reduce Taxes provided, however, that Landlord shall pay to Tenant promptly after receipt by Landlord an amount equal to Tenant’s Share of any refunded or recovered Tax previously paid by Tenant.
6 (d) Expenses shall mean all costs of management, operation, maintenance, insuring and repair of the (i) structural elements of the Building; (ii) Common Area maintenance; and (iii) Landlord’s property insurance, if any.
5.2 Determination and Payment of Operating Expenses and Taxes. Tenant shall pay to Landlord as Additional Rent one-twelfth (1/12th) of Tenant’s Share of the Taxes and the Expenses for each Tax and Expense Year, or portion thereof, on or before the first day of each month during such Tax and Expense Year, in advance, in an amount estimated by Landlord set forth in an annual statement delivered by Landlord to Tenant; provided that Landlord shall have the right to revise such estimates not more than twice per Tax and Expense Year and Tenant shall thereafter make payments hereunder on the basis of such revised estimates. With reasonable promptness after the end of each Tax and Expense Year, Landlord shall submit to Tenant a statement showing the actual amount which should have been paid by Tenant with respect to Taxes and Expenses for the past Tax and Expense Year, the amount thereof actually paid during that year by Tenant and the amount of the resulting balance due thereof, or overpayment thereof, as the case may be (“Landlord’s Statement”). Landlord’s Statement shall set forth in reasonable detail, and shall contain a line-item breakdown showing at least the following major categories: (i) maintenance and repairs; (ii) landscaping; (iii) utilities (electricity; gas; water and sewer); and (iv) insurance. Any balance shown to be due pursuant to said statement shall be paid by Tenant to Landlord within thirty (30) days following Tenant’s receipt thereof; and any overpayment shall be immediately credited against Tenant’s obligation to make monthly payments for Taxes and Expenses for the then current Tax and Expense Year, or, if by reason of any termination of this Lease no such obligation exists, any such overpayment shall be refunded to Tenant. As an alternative to the monthly payment of Tenant’s Share of Taxes and Expenses, and at Landlord’s sole discretion, Landlord may direct Tenant to pay, within thirty (30) days of Landlord’s delivery of Landlord’s Statement, the full annual amount set forth therein. If the Expiration Date shall occur on a date other than the last day of a Tax and Expense Year, Tenant’s Share of Taxes and Expenses for the Tax and Expense Year in which the Expiration Date occurs shall be in the proportion that the number of days from and including the first day of the Tax and Expense Year in which the Expiration Date occurs to and including the Expiration Date bears to 365. Where the calculation of Expenses and Taxes for a Tax and Expense Year cannot be made until after expiration or termination of this Lease, the obligation of Tenant to pay its proportionate share as Additional Rent shall survive the expiration or termination hereof and such Additional Rent for such period shall be payable by Tenant upon demand by Landlord.
6. USE; COMPLIANCE WITH LAWS.
6.1 Use. The Premises shall be used for the Permitted Use and for no other use whatsoever. At no time shall Tenant have the right to install, operate or maintain telecommunications or any other equipment on the roof or exterior areas of the Building, except as may be necessary for Tenant’s Permitted Use of the Premises and Tenant’s installation of such equipment is done in full compliance with Article 10. Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the Premises, Buildings or with respect to the suitability or fitness of either for the conduct Tenant’s business or for any other purpose.
7 6.2 Compliance with Laws. Tenant shall comply with all laws, ordinances, rules, regulations and codes, of all municipal, county, state and federal authorities, including the Americans With Disabilities Act, as amended, (42 U.S.C. Section 1201 et seq. [the “ADA”]) (collectively, “Laws”) pertaining to Tenant’s use and occupancy of the Premises and the conduct of its business. Tenant shall be responsible for making all improvements and alterations necessary to bring the Premises into compliance with applicable ADA requirements, including correcting any construction-related accessibility standards within the Premises, and to ensure that the Premises remain in compliance throughout the Term of this Lease. Tenant shall not commit, or suffer to be committed, any waste upon the Premises or any public or private nuisance, or other act or thing which disturbs the quiet enjoyment of any other tenant in the Building, nor shall Tenant store any materials on the Premises which are visible from areas adjacent to the Premises, unless otherwise specifically set forth in this lease. Tenant shall not permit any objectionable odor to escape or be emitted from the Premises and shall ensure that the Premises remain free from infestation from rodents or insects. Tenant shall not do or permit anything to be done on or about the Premises or bring or keep anything into the Premises which will in any way increase the rate of, invalidate, or prevent the procuring of any insurance, protecting against loss or damage to the Building or any of its contents by fire or other casualty or against liability for damage to property or injury to person in or about the Building.
6.3 Compliance with Restrictions. The Premises are located on property known as the former Naval Air Station Alameda, portions of which were conveyed to the City by the United States of America, acting by and through the Department of the Navy by a quitclaim deed dated June 4, 2013, recorded June 6, 2013 as Series No. 2013-______ of Official Records in the Office of the County Recorder, Alameda County, California (“Quitclaim Deed”). Said Quitclaim Deed conveyed the Premises subject to certain covenants, conditions, restrictions, easements, and encumbrances as set forth therein. The Premises are further encumbered by those certain restrictions set forth in the Declaration of Restrictions (Former Naval Air Station Alameda) dated June 4, 2013 and recorded June 6, 2013 as Series No.: 2013-199782 in the Office of the County Recorder of Alameda County (“Declaration of Restrictions”). Copies of the Quitclaim Deed and Declaration of Restrictions have been delivered to Tenant and, concurrently with the execution of this Lease, Tenant shall sign and return to Landlord the Acknowledgment of Receipt, attached hereto as Exhibit D. Use of the Premises is further restricted by the Covenant to Restrict Use of Property Environmental Restrictions recorded June 6, 2013 as Series No. 2013-199839 in the office of the County Recorder, Alameda County, CA (the “CRUP”), the National Environmental Protection Act Record of Decision (“ROD”) for the disposal and reuse of the former Naval Air Station Alameda, and all conditions contained therein. A copy of the ROD is available for review at Landlord’s office during normal business hours. The covenants, conditions, restrictions, easements, rights-of-way, reservations, rights, agreements, and encumbrances set forth in the Quitclaim Deed, Declaration of Restrictions and the ROD, as they affect the Building, Common Areas or Premises, are collectively referred to herein as the “Restrictions.” Any use of the Premises shall comply with the Restrictions and a failure to so comply shall constitute a Default under this Lease.
6.4 Use Permit. Tenant and any of its subtenants shall maintain a City of Alameda Use Permit and other applicable City permits and approvals for the intended use of the Premises (collectively “Use Permit”).
8 7. SECURITY DEPOSIT.
Concurrently with its execution of this Lease, Tenant shall deliver to Landlord the amount identified in the Basic Lease Information as the Security Deposit to be held by Landlord without liability for interest (unless required by Law) as security for the performance of Tenant’s obligations. The Security Deposit is not an advance payment of Rent or a measure of damages.
Landlord may from time to time and without prejudice to any other remedy provided in this Lease or by Law, use all or a portion of the Security Deposit to the extent necessary to satisfy past due Rent or to satisfy Tenant’s Default under this Lease or to reimburse or compensate Landlord for any liability, expense, loss or damage which Landlord may suffer or incur by reason thereof. If Landlord so uses or applies all or any portion of the Security Deposit, then within fifteen (15) days after demand therefore, Tenant shall deposit cash with Landlord in an amount sufficient to restore the deposit to the full amount thereof, and Tenant’s failure to do so shall constitute a Default under this Lease. If there are no payments to be made from the Security Deposit as set out in this paragraph, or if there is any balance of the Security Deposit remaining after all payments have been made, the Security Deposit, or such balance thereof remaining, will be refunded to the Tenant after the expiration or earlier termination of this Lease.
Tenant hereby waives the benefit of the provisions of California Civil Code Section 1950.7. In the event of an act of bankruptcy by or insolvency of Tenant or the appointment of a receiver for Tenant or general assignment for the benefit of Tenant’s creditors, the Security Deposit shall be deemed immediately assigned to Landlord.
8. UTILITIES.
8.1 Payments for Utilities and Services. Tenant shall contract directly with the providers of, and shall pay all charges for, water, sewer, storm water, gas, electricity, heat, cooling, telephone, refuse collection, janitorial, pest control, security and monitoring services furnished to the Premises, together with all related installation or connection charges or deposits (“Utilities”). If any Utilities are provided by Alameda Municipal Power (“AMP”) it is understood and agreed that such entity is separate and distinct from Landlord and Tenant must contract directly with AMP for any such Utilities. If any such Utilities are not separately metered or billed to Tenant for the Premises but rather are billed to and paid by Landlord, Tenant shall pay to Landlord, as Additional Rent, its pro rata share of the cost of such services, as reasonably determined by Landlord. If any Utilities are not separately metered, Landlord shall have the right to determine Tenant's consumption by either submetering, survey or other methods designed to measure consumption with reasonable accuracy.
8.2 Water Infrastructure. Water to Alameda Point has been supplied by East Bay Municipal Utility District (“EBMUD”) but the water system itself was designed, installed and historically operated by the Navy. The water system infrastructure at Alameda Point was neither built, nor maintained to the standards of EBMUD. Until the water supply systems is improved as required by EBMUD, Tenant cannot become an EBMUD customer. Until such time as that occurs, water will continue to be provided by means of the City’s current water supply system.
Landlord will bill Tenant for water usage at the same rate paid by the City to EBMUD. The City intends to replace the water infrastructure at Alameda Point and, to that end, it has entered into a phased water system infrastructure agreement with EBMUD. At such time as the water system is improved to meet the requirements set forth in EBMUD’s Regulations Governing Water Service
9 the City will cease providing water to the Premises and Tenant will be required to contract directly with EBMUD. Tenant shall pay all fees and costs assessed by EBMUD for establishing water service to the Premises including, but not limited to, System Capacity Charges (“SCC”) and Water Capacity Fees (“WCF”). Tenant is encouraged to contact EBMUD to obtain an estimate of the amount of WCF and SCC that it will be obligated to pay.
8.3 No Liability of Landlord. Except in the case of Landlord’s gross negligence or willful misconduct, in no event shall Landlord be liable or responsible for any loss, damage, expense or liability, including, without limitation, loss of business or any consequential damages, arising from any failure or inadequacy of any service or Utilities provided to the Premises or Buildings, whether resulting from any change, failure, interference, disruption or defect in supply or character of the service or Utilities provided to the Premises or Building, or arising from the partial or total unavailability of the service or utility to the Premises or Buildings, from any cause whatsoever, or otherwise, nor shall any such failure, inadequacy, change, interference, disruption, defect or unavailability constitute an actual or constructive eviction of Tenant, or entitle Tenant to any abatement or diminution of Rent or otherwise relieve Tenant from its obligations under this Lease.
9. PERSONAL PROPERTY AND POSSESSORY INTEREST TAXES.
9.1 Tenant’s Tax Obligation. “Taxes” shall mean all taxes, assessments and governmental charges, whether federal, state, county or municipal, and whether general or special, ordinary or extraordinary, foreseen or unforeseen, imposed upon Tenant’s personal property or trade fixtures, the Premises, or any possessory interest therein, or their operation, whether or not directly paid by Landlord, but excluding those Taxes paid by Landlord as defined at Section 5.1(c) above.
9.2 Personal Property Taxes. Tenant shall pay all Taxes (as hereinafter defined) levied or imposed against the Premises or Tenant’s personal property or trade fixtures placed by Tenant in or about the Premises during the Term (“Personal Property Taxes”).
9.3 Possessory Interest Taxes. The interest created by this Lease may at some time be subject to property taxation under the laws of the State of California. If property taxes are imposed, the party in whom the possessory interest is vested may be subject to the payment of the taxes levied on such interest. This notice is included in this Lease pursuant to the requirements of section 107.6 (a) of the Revenue and Taxation Code of the State of California.
9.4 Payment. Tenant shall pay the Personal Property Taxes or possessory interest taxes in accordance with the instructions of the taxing entity. Tenant shall pay the Personal Property Taxes, if any, originally imposed upon Landlord, upon Landlord’s election, either (a) annually within thirty (30) days after the date Landlord provides Tenant with a statement setting forth in reasonable detail such Taxes, or (b) monthly in advance based on estimates provided by Landlord based upon the previous year’s tax bill. All Personal Property Taxes originally imposed upon Landlord and payable by Tenant with respect to the Premises shall be prorated on a per diem basis for any partial tax year included in the Term. Tenant’s obligation to pay Taxes during the last year of the Term shall survive the expiration or termination of this Lease.
10 10. ALTERATIONS.
10.1 Landlord Consent Required. Tenant shall not make any alterations, improvements, or additions (each an “Alteration”) in or about the Premises or any part thereof without the prior written consent of Landlord, which consent may be reasonably conditioned upon criteria and/or requirements deemed necessary by Landlord in its proprietary capacity only; provided, however, that Landlord shall have the right in its sole and absolute discretion to withhold its consent to any Alteration which affects the structural components of the Building, including the roof, support structures, foundations, the exterior of the Building and/or the systems serving the Premises or the Building. Any such approval by Landlord shall be in its proprietary capacity as Landlord and no such approval shall be deemed an approval by the City of Alameda in its regulatory capacity. Notwithstanding the foregoing, Tenant shall have the right to make Alterations to the Premises with prior written notice to, but without the consent of, Landlord provided that such Alterations (a) do not require the procurement of a building permit, (b) do not affect the structural portion of the Building or the systems serving the Building, (c) the reasonably estimated costs of the Alternations, together with the costs of any other Alteration made during the immediately preceding twelve (12) months period, do not exceed Ten Thousand Dollars ($10,000) and, (d) are performed in full compliance with the terms Sections 10.2 through
10.4 below.
10.2 Alterations. Any Alterations to the Premises shall be at Tenant’s sole cost and expense, and made in compliance with all applicable Laws and all reasonable requirements requested by Landlord. Prior to starting work, Tenant shall furnish Landlord with plans and specifications (which shall be in CAD format if requested by Landlord); names of contractors reasonably acceptable to Landlord; required permits and approvals; evidence of contractors and subcontractors insurance in amounts reasonably required by Landlord and naming Landlord, the managing agent for the Building and such other persons or entities as Landlord may reasonably request, as additional insureds; and any security for payment in performance and amounts reasonably required by Landlord. In addition, if any such Alteration requires the removal of asbestos, an appropriate asbestos disposal plan, identifying the proposed disposal site of all such asbestos, must be included with the plans and specifications provided to Landlord. Tenant shall reimburse Landlord for any sums paid by Landlord for third party examination of Tenant’s plans for Alterations. Landlord agrees to respond to Tenant’s request for consent to any Alterations within fifteen (15) days following Tenant’s delivery of such request, accompanied by plans and specifications depicting the proposed Alterations (“Plans”) and a designation of Tenant’s general contractor (and major subcontractors) to perform such work. Landlord’s response shall be in writing and, if Landlord withholds its consent to any Alterations, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval. If Landlord fails to timely notify Tenant of Landlord’s approval or disapproval of any such Plans, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF SECTION 10.2 OF THE LEASE. If Landlord fails to respond to such Second Request within five (5) business days after receipt by Landlord, the Plans in question shall be deemed disapproved by Landlord. If Landlord disapproves of any Plans, Tenant may revise Tenant’s Plans and resubmit such Plans to Landlord; in such event the scope of Landlord’s review of such Plans shall be limited to Tenant’s correction of the items to 11 which Landlord had previously objected. Landlord’s review and approval (or deemed approval) of such revised Plans shall be governed by the provisions as set forth above in this Section 10.2.
The procedure set forth above for approval of Tenant’s Plans will also apply to any change, addition or amendments to Tenant’s Plans. Landlord’s approval of an Alteration shall not be deemed a representation by Landlord that the Alteration complies with Law. In addition, Tenant shall pay Landlord a fee for Landlord’s oversight and coordination of any Alteration equal to five percent (5%) of the total costs of the Alteration, to the extent the costs of the Alteration is equal to or less than $100,000; plus four percent (4%) of the costs of the Alteration to the extent that the costs of the Alteration is in excess of $100,000, but not more than $500,000; plus three percent (3%) of any portion of the costs of the Alteration in excess of $500,000. Upon completion, Tenant shall furnish Landlord with at least three (3) sets of “as built” Plans (as well as a set in CAD format, if requested by Landlord) for the Alterations, completion affidavit and full and final unconditional waivers of liens and will cause a Notice of Completion to be recorded in the Office of the Recorder of the County of Alameda. Any Alteration shall at once become the property of Landlord; provided, however, that Landlord, at its option, may require Tenant to remove any Alterations prior to the expiration or sooner termination of this Lease. If Tenant serves a request in writing together with Tenant’s request for Landlord’s consent to any such Alterations (“Removal Request”), Landlord will notify Tenant at the time of Landlord’s consent to any such Alterations as to whether Landlord requires their removal. All costs of any Alterations (including, without limitation, the removal thereof, if required) shall be borne by Tenant. If Tenant fails to promptly complete the removal of any Alterations and/or to repair any damage caused by the removal, Landlord may do so and may charge the reasonable costs thereof to Tenant. All Alterations shall be made in a good and workmanlike manner and in a manner that will not disturb other tenants, in accordance with Landlord’s then-current guideline for construction, and Tenant shall maintain appropriate liability and builders’ risk insurance throughout the construction. Tenant shall indemnify, defend, protect and hold Landlord harmless from and against any and all claims for injury to or death of persons or damage or destruction of property arising out of or relating to the performance of any Alterations by or on behalf of Tenant. Under no circumstances shall Landlord be required to pay, during the Term (as the same may be extended or renewed) any ad valorem or other Taxes on such Alterations, Tenant hereby covenanting to pay all such taxes when they become due.
10.3 Excavations. In the event Tenant intends to perform any Alterations requiring excavations below the surface of the Premises (whether inside or outside of the Buildings) or construction of a permanent structure on the Premises, Tenant must determine the actual location of all utilities using standard methods (i.e., potholing, metal fish line, etc.) and submit this information with an application to excavate or application to build a permanent structure to Landlord for approval (which shall also include the approval of other applicable governmental authorities). The application shall include a site plan showing the location of utilities and that construction will not take place above the utility line or within the utility easement, specifically showing that no permanent structure will be constructed in these areas. Tenant shall be responsible for complying with the provisions of the City of Alameda’s Marsh Crust Ordinance, as well as the Covenant to Restrict Use of Property Environmental Restrictions recorded June 6, 2013 as Series No. 2013- 199838 of Official Records of the County of Alameda, the Site Management Plan for Alameda Point and, if required, shall obtain a Marsh Crust Permit. 12 10.4 Liens. Tenant shall pay when due all claims for labor or materials furnished Tenant for use in the Premises. Tenant shall not permit any mechanic liens, stop notices, or any other liens against the Premises, Building, Alterations or any of Tenant’s interests under this Lease for any labor or materials furnished to Tenant in connection with work performed on or about the Premises by or at the direction of Tenant. Tenant shall indemnify, hold harmless and defend Landlord (by counsel reasonably satisfactory to Landlord) from any liens and encumbrances arising out of any work performed or materials furnished by or at the direction of Tenant. In the event that Tenant shall not, within ten (10) days following the imposition of any such lien or stop notice, cause such lien or stop notice to be released of record by payment or posting of a proper bond, Landlord shall have, in addition to all other remedies provided herein or by law, the right, but not the obligation, to cause the same to be released by such means as it may deem proper, including payment of the claim giving rise to such lien. All such sums paid by Landlord and expenses reasonably incurred in connection therewith, including attorneys’ fees and costs, shall be payable to Landlord by Tenant on demand.
11. M
AINTENANCE AND REPAIR OF PREMISES.
11.1 Maintenance and Repair by Tenant.
(a) Tenant Maintenance. Tenant shall, at its sole cost and expense, maintain the Premises in good repair and in a neat and clean, first-class condition, including making all necessary repairs and replacements. Tenant’s repair and maintenance obligations include, without limitation, repairs to: (i) floor coverings; (ii) interior partitions; (iii) doors; (iv) the interior side of demising walls; (v) the roof of the Building (vi) fire life safety systems, including sprinklers, fire alarms and/or smoke detectors; (vii) Alterations, described in Article 10; (viii) heating, ventilation and air conditioning (HVAC) systems exclusively serving the Premises; (ix) kitchens; (x) plumbing and similar facilities exclusively serving the Premises, whether such items are installed by or on behalf of Tenant or are currently existing at the Premises; and (xi) telephone and data equipment, and cabling. (b) Tenant Repair. Tenant shall further, at its own costs and expense, repair or restore any damage or injury to all or any part of the Building caused by Tenant or Tenant’s agents, employees, invitees, licensees, visitors or contractors, including but not limited to repairs or replacements necessitated by (i) the construction or installation of improvements to the Premises by or on behalf of Tenant; (ii) the moving of any property into or out of the Premises; or Tenant’s use and occupancy of the Premises. If Tenant fails to make such repairs or replacement within fifteen (15) days after notice from Landlord, then Landlord may, at its option, upon prior reasonable notice to Tenant (except in an emergency) make the required repairs and replacements and the costs of such repairs or replacement (including Landlord’s administrative charge) shall be charged to Tenant as Additional Rent and shall become due and payable by Tenant with the monthly installment of Base Rent next due hereunder.
11.2 Maintenance and Repair by Landlord. Landlord shall maintain in good repair (i) the structural elements of the Building, including structural elements of exterior walls and foundations, but excluding any glass and exterior doors; and (ii) Common Areas, if any, provided such repairs are not necessitated by the actions or inactions of Tenant, Tenant’s invitees or anyone in the employ or control of Tenant. Tenant hereby waives any and all rights under and 13 benefits of subsection 1 of Section 1932, and Sections 1941 and 1942 of the California Civil Code or any similar or successor Laws now or hereby in effect. Tenant shall immediately give Landlord written notice of the need for repair of the items for which Landlord is responsible. If Tenant or Tenant’s invitees or anyone in the employed or control of Tenant caused any damages necessitating such repair, then Tenant shall pay to Landlord the cost thereof, immediately upon demand therefor. Except as otherwise expressly set forth in this Lease, Tenant waives any right to terminate this Lease or offset or abate Rent by reason of any failure of Landlord to make repairs to the Premises or Building.
12. E
NVIRONMENTAL PROTECTION PROVISIONS.
12.1 Hazardous Materials. “Hazardous Materials” shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive, flammable, explosive, radioactive or corrosive, including, without limitation, petroleum, solvents, lead, acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause cancer or reproductive harm and those materials, substances and/or wastes, including wastes which are or later become regulated by any local governmental authority, the state in which the Premises are located or the United States Government, including, but not limited to, substances defined as “hazardous substances,” “hazardous materials,” “toxic substances” or “hazardous wastes” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act; all environmental laws of the state where the Premises are located, and any other environmental law, regulation or ordinance now existing or hereinafter enacted. “Hazardous Materials Laws” shall mean all present and future federal, state and local laws, ordinances and regulations, prudent industry practices, requirements of governmental entities and manufacturer’s instructions relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, presence, disposal or transportation of any Hazardous Materials, including without limitation the laws, regulations and ordinances referred to in the preceding sentence.
12.2 Reportable Uses Required Consent. Except as permitted in this Article 12, Tenant hereby agrees that Tenant and Tenant’s officers, employees, representatives, agents, contractors, subcontractors, successors, assigns, subtenants, concessionaires, invitees and any other occupants of the Premises (for purposes of this Article 12, referred to collectively herein as “Tenant Parties”) shall not cause or permit any Hazardous Materials to be used, generated, manufactured, refined, produced, processed, stored or disposed of, on, under or about the Premises or Building or transported to or from the Premises or Building without the express prior written consent of Landlord, which consent may be limited in scope and predicated on strict compliance by Tenant with all applicable Hazardous Materials Laws and such other reasonable rules, regulations and safeguards as may be required by Landlord (or any insurance carrier, environmental consultant or lender of Landlord, or environmental consultant retained by any lender of Landlord) in connection with using, generating, manufacturing, refining, producing, processing, storing or disposing of Hazardous Materials on, under or about the Premises or the Building. In connection therewith, Tenant shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Tenant or any of Tenant Parties of Hazardous Materials on the Premises or the Building, including without limitation, discharge of
14 (appropriately treated) materials or wastes into or through any sanitary sewer serving the Premises or the Building. The foregoing notwithstanding, Tenant may use ordinary and customary materials reasonably required to be used in the course of the Permitted Use, ordinary office supplies (copier, toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Hazardous Materials Laws and does not expose the Premises or neighboring property to any material risk of contamination or damage or expose Landlord to any liability therefor.
12.3 Remediation Obligations. If at any time during the Term, any contamination of the Premises by Hazardous Materials shall occur where such contamination is caused by the act or omission of Tenant or Tenant Parties (“Tenant’s Contamination”), then Tenant, at Tenant’s sole cost and expense, shall promptly and diligently remediate such Hazardous Materials from the Premises or the groundwater underlying the Premises to the extent required to comply with applicable Hazardous Materials Laws. Tenant shall not take any required remedial action in response to any Tenant’s Contamination in or about the Premises or enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to any Tenant’s Contamination without first obtaining the prior written consent of Landlord, which may be subject to conditions imposed by Landlord as determined in Landlord’s sole discretion. Such prior written consent shall not be required to the extent the delay caused by the requirement to obtain consent may increase the damage to the Premises or the risk of harm to human health, safety, the environment or security caused by the Tenant’s Contamination. Landlord and Tenant shall jointly prepare a remediation plan in compliance with all Hazardous Materials Laws and the provisions of this Lease. In addition to all other rights and remedies of Landlord hereunder, if Tenant does not promptly and diligently take all steps to prepare and obtain all necessary approvals of a remediation plan for any Tenant’s Contamination, and thereafter commence the required remediation of any Hazardous Materials released or discharged in connection with Tenant’s Contamination within thirty (30) days after all necessary approvals and consents have been obtained, and thereafter continue to prosecute such remediation to completion in accordance with the approved remediation plan, then Landlord, at its sole discretion, shall have the right, but not the obligation, to cause such remediation to be accomplished, and Tenant shall reimburse Landlord within fifteen (15) business days of Landlord’s demand for reimbursement of all amounts reasonably paid by Landlord (together with interest on such amounts at the highest lawful rate until paid), when such demand is accompanied by proof of payment by Landlord of the amounts demanded. Tenant shall promptly deliver to Landlord, copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the Premises as part of Tenant’s remediation of any Tenant’s Contamination. The foregoing notwithstanding, “Tenant’s Contamination” shall not refer to or include any Hazardous Materials that were not introduced to the Premises by Tenant or Tenant Parties. As an example, if lead dust or asbestos are found on the Premises, unless there is evidence that Tenant introduced those Hazardous Materials to the Premises or they were dislodged by a Tenant Alteration, those Hazardous Materials shall not be considered “Tenant’s Contamination,” and it shall not be Tenant’s responsibility to take remedial action relating to such Hazardous Materials.
12.4 Environmental Permits. Tenant and Tenant Parties shall be solely responsible for obtaining and complying with, at their cost and sole expense, any environmental permits required for Tenant’s operations under this Lease, independent of any existing permits held by Landlord. Tenant shall not conduct operations or activities under any environmental permit that 15 names Landlord as a secondary discharger or co-permittee. Tenant shall provide prior written notice to Landlord of all environmental permits and permit applications required for any of Tenant’s operations or activities. Tenant acknowledges that Landlord will not consent to being named a secondary discharger or co-permittee for any operations or activities of Tenant, its contractors, assigns or subtenants. Tenant shall strictly comply with any and all environmental permits (including any hazardous waste permit required under the Resource Conservation and Recovery Act or its state equivalent) and must provide, at its own expense, any hazardous waste management facilities complying with all Hazardous Material Laws.
12.5 Landlord’s Inspection Right. Landlord shall have the right to inspect, upon reasonable notice to Tenant, the Premises for Tenant’s compliance with this Article 12. Landlord normally will give Tenant twenty-four (24) hours’ prior notice of its intention to enter the Premises unless it determines the entry is required for exigent circumstances related to health, safety, or security; provided, however, Landlord agree to use its best commercial efforts to provide Tenant with the maximum advance notice of any such entrance and will, without representation or warranty, attempt to structure such entrance in the least intrusive manner possible. Tenant shall have no claim against Landlord, or any officer, agent, employee, contractor or subcontractor of Landlord by reason of entrance of such Landlord officer, agent, employee, contractor or subcontractor onto the Premises.
12.6 Hazardous Materials Handling Plan. Prior to the execution of this Lease, Tenant shall complete, execute and deliver to Landlord an Environmental Questionnaire Disclosure Statement (the “Environmental Questionnaire”), in the form of Exhibit E attached hereto and shall require any Subtenant who will bring to, or use at the Premises, any Hazardous Materials to also execute and deliver to Landlord an Environmental Questionnaire. To the extent Tenant intends to store, use, treat or dispose of Hazardous Materials on the Premises, Tenant shall prepare and submit together with the Environmental Questionnaire a Hazardous Materials Handling Plan (the “Hazardous Materials Handling Plan”). For a period of fifteen (15) days following Landlord’s receipt of the Environmental Questionnaire and Hazardous Materials Handling Plan, if applicable, Landlord shall have the right to approve or disapprove such documents. The failure of Landlord to approve such documents shall be deemed Landlord’s disapproval thereof. Landlord approval of the Environmental Questionnaire and the Hazardous Materials Handling Plan shall constitute approval for Tenant’s use of the Hazardous Materials set forth therein in compliance with Hazardous Materials Laws and the Hazardous Materials Handling Plan. Following approval of the Hazardous Materials Handling Plan, Tenant shall comply therewith throughout the Term. To the extent Tenant is permitted to utilize Hazardous Materials upon the Premises, such use shall be limited to the items set forth in the Environmental Questionnaire, shall comply with Hazardous Materials Laws and the Hazardous Materials Handling Plan and Tenant shall promptly provide Landlord with complete and legible copies of all the following environmental items relating thereto: reports filed pursuant to any self-reporting requirements; permit applications, permits, monitoring reports, workplace exposure and community exposure warnings or notices and all other reports, disclosures, plans or documents relating to water discharges, air pollution, waste generation or disposal, and underground storage tanks for hazardous materials; orders, reports, notices, listing and correspondence of or concerning the release, investigation of, compliance, cleanup, remedial and corrective actions, and abatement of hazardous materials; and all complaints, pleadings and other legal documents filed by or against Tenant related to Tenant’s use, handling, storage or disposal of Hazardous
16 Materials. If, in conjunction with Tenant’s Permitted Use of the Premises, Tenant desires to commence the use, treatment, storage or disposal of previously undisclosed Hazardous Materials, prior to such usage thereof, Tenant shall notify Landlord thereof, by written summary detailing the scope of such proposed usage and updating the Hazardous Materials Handling Plan to the extent required by such proposed usage. For a period of fifteen (15) days following Landlord’s receipt of such notice, Landlord shall have the right to approve or disapprove of such documents.
The failure of Landlord to approve of such documents within such time period shall be deemed Landlord’s disapproval thereof.
12.7 Hazardous Materials Indemnity. In addition to any other provisions of this Lease, Tenant shall, and does hereby agree, to, indemnify and hold harmless Landlord from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal arising from Tenant’s occupancy, use or operations, or any other action by Tenant or its contractors, employees, agents, assigns, invitees, or subtenants giving rise to liability, civil or criminal, or any other action by Tenant or its contractors, employees, agents, assigns, or subtenants giving rise to responsibility under any Hazardous Materials Laws. Tenant’s obligations hereunder shall apply whenever Landlord incurs costs or liabilities for Tenant’s activities or for the activities of Tenant’s contractors, employees, agents, assigns, invitees, or subtenants as provided hereunder. This provision shall survive the expiration or termination of this Lease.
13. ASSIGNMENT AND SUBLETTING.
13.1 Landlord Consent Required. Subject to Sections 13.5 and 13.6 below, Tenant shall not voluntarily or by operation of law, (a) mortgage, pledge, hypothecate or encumber this Lease or any interest therein, or (b) assign or transfer this Lease or any interest herein, sublease the Premises or any part thereof or any right or privilege appurtenant thereto, or allow any other person (the employees and invitees of Tenant excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Landlord, which consent shall not be withheld unreasonably provided that (i) Tenant is not then in Default under this Lease nor is any event then occurring, with the giving of notice or the passage of time, or both, would constitute a Default hereunder, and (ii) Tenant has not previously assigned or transferred this Lease or any interest herein or subleased the Premises or any part thereof. A transfer of greater than fifty percent (50%) interest (whether stock, partnership interest, membership interest or otherwise) of Tenant, either in one (1) transaction or a series of transactions shall be deemed to be an assignment under this Lease.
13.2 Landlord Recapture. In the event of an assignment of this Lease or subletting of more than twenty percent (20%) of the rentable square footage of the Premises, Landlord shall have the right to recapture the portion of the Premises that Tenant is proposing to transfer. If Landlord exercises its right to recapture, this Lease shall automatically be amended (or terminated if the entire Premises is being assigned or sublet) to delete the applicable portion of the Premises effective on the proposed effective date of the Transfer, although Landlord may require Tenant to execute a reasonable amendment or other document reflecting such reduction or termination.
17 13.3 Reasonable Consent. If Tenant intends to assign this Lease or sublet the Premises or any part thereof, Tenant shall give Landlord written notice of such intent (“Transfer Notice”).
Tenant’s Transfer Notice shall be accompanied by a copy of the proposed assignment or sublease between Tenant and the proposed assignee or subtenant, together with current and three (3) years’ prior financial statements, if available, for the proposed assignee or subtenant, which financial statement shall be prepared in accordance with generally accepted accounting principles. Tenant shall provide Landlord with any additional information or documentation reasonably requested by Landlord within ten (10) business days after receiving Landlord’s request. Landlord shall then have a period of thirty (30) days following receipt of such additional information (or 30 days after receipt of Tenant’s Transfer Notice if no additional information is requested) within which to notify Tenant in writing that Landlord elects either (a) to exercise its recapture rights in accordance with Section 13.2 in which event Tenant will be relieved of all further obligations hereunder as to such space as of the date specified in Landlord’s notice terminating the Lease with respect to the relevant space, (b) to permit Tenant to assign this Lease or sublet such space as described in the Transfer Notice, subject, however, to prior written consent to the proposed assignment or sublease or (c) deny Tenant’s request to assign this Lease or sublet such space. Among other factors upon which Landlord may base a withholding of consent are the following: (i) the use of the Premises by such proposed assignee or subtenant would not be a Permitted Use; (ii) the financial condition of the proposed assignee or subtenant is such that, in Landlord’s reasonable determination, it would be unable to perform its obligations under the proposed sublease or assignment; (iii) the portion of the Premises proposed to be sublet is irregular in shape and/or does not permit safe or otherwise appropriate means of ingress and egress, or does not comply with other Laws or regulations; (iv) Landlord or Landlord’s agents have negotiated with the proposed assignee or subtenant with regard to the leasing of space at the Property, at any time within the preceding six (6) months; or (v) any other reasonable basis that Landlord may assert.
13.4 Transfer Premium. If Landlord consents to any requested assignment or sublease (each a “Transfer”) and the assignee or subtenant pays to Tenant an amount in excess of the Rent due under this Lease (after deducting Tenant’s reasonable, actual expenses in obtaining such assignment or sublease, such expenses being limited to (a) any Alterations to the subject space made in order to achieve the Transfer, or contributions to the cost thereof, amortized in equal monthly installments over the then remainder of the Term and (b) any commercially reasonable brokerage commissions, reasonable attorneys’ fees and reasonable advertising and marketing costs incurred by Tenant in connection with the Transfer) (“Transfer Premium”).
Tenant shall pay fifty percent (50%) of such Transfer Premium to Landlord as and when the monthly payments are received by Tenant.
13.5 Tenant Affiliates. Notwithstanding anything to the contrary contained in Section
13.1, Tenant may, without obtaining the prior consent of Landlord, and without the payment of any amounts pursuant to Section 13.4, sublet or license the use of all or any part of the Premises or assign this Lease to a Tenant Affiliate, provided that (a) Tenant shall give not less than thirty (30) days’ prior written notice thereof to Landlord (to the extent such notice is permitted by applicable Law), (b) Tenant shall continue to be fully obligated under this Lease, and (c) any such assignee or sublessee shall, in a writing signed by both Landlord and such assignee or sublessee, expressly assume and agree to perform all the terms and conditions of this Lease to be performed by Tenant and to use the Premises only for a Permitted Use (but with respect to a
18 sublease, only with respect to that portion of the Premises that is the subject of the sublease and excluding all rental obligations of Tenant hereunder). As used herein, “Tenant Affiliate” means (i) an entity controlling, controlled by or under common control with Tenant, (ii) a successor corporation related to Tenant by merger, consolidation, nonbankruptcy reorganization, or government action, or (iii) a purchaser of substantially all of Tenant’s assets located in the Premises; and a party shall be deemed to “control” another party for purposes of the definition contained in the aforesaid clause (i) only if the first party owns more than fifty percent (50%) of the stock or other beneficial interests of the second party or has the power to direct or cause the direction of the management or policy of the second party, or the first and second party share the same, or substantially the same (defined as a majority of directors on the “controlled” entity’s board are also on the other entity’s board), board of directors. Within five (5) business days of execution of any such sublease or license with a Tenant Affiliate, Tenant shall deliver to Landlord a copy of the fully executed assignment, sublease or license.
13.6 No Release. No Transfer shall release or discharge Tenant of or from any liability, whether past, present or future, under this Lease, and Tenant shall continue to be fully liable hereunder. Each subtenant or assignee shall agree, in a form reasonably satisfactory to Landlord, to comply with and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord’s prior written consent, and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in Default under this Lease with respect to the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord’s collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. Tenant shall deliver to Landlord promptly after execution an executed copy of each Transfer and an agreement of compliance by each such subtenant or assignee.
13.7 Expenses and Attorneys’ Fees. Tenant shall pay to Landlord all costs and expenses (including without limitation, the fees of Landlord’s counsel) incurred in connection Landlord’s review and processing of documents regarding any proposed Transfer (which under no circumstances shall be less than $750 per proposed Transfer).
13.8 Limitations on Transfer Reasonable. Tenant acknowledges and agrees that the restrictions, conditions, and limitations imposed by this Article 13 on Tenant’s ability to assign or transfer this Lease or any other interests herein, to sublet the Premises or any part thereof, are, for purposes of California Civil Code Section 1951.4, as amended from time to time, and for all other purposes, reasonable at the time this Lease was entered into and shall be deemed to be reasonable at the time that Tenant seeks to assign or transfer this Lease or any interest herein, to sublet the Premises or any part thereof, or transfer or assign any right or privilege appurtenant to the Premises.
19 14. INDEMNITY AND WAIVER OF CLAIMS.
14.1 Tenant Indemnification. Tenant shall indemnify, defend and hold Landlord and Landlord Related Parties harmless against and from all liabilities, obligations, damages, penalties, claims, actions, costs, charges, judgment and expenses (including reasonable attorneys’ fees, costs and disbursements) (collectively referred to as “Losses”), arising from (a) the use of, or any activity done, permitted or suffered in or about the Premises (b) any activity done, permitted or suffered by Tenant or Tenant’s agents, contractors, invitees or licensees in or about the Building or Land (c) any act, neglect, fault, willful misconduct of Tenant or Tenant’s agents, or (d) from any breach or default in the terms of this Lease by Tenant or Tenant’s agents, except to the extent such claims arise out of or relate to the gross negligence or willful misconduct of Landlord. If any action or proceeding is brought against Landlord by reason of any such claim, upon notice from Landlord, Tenant shall defend the same at Tenant’s expense by counsel reasonably satisfactory to Landlord. As a material part of the consideration to Landlord, Tenant hereby releases Landlord and its trustees, members, principals, beneficiaries, partners, officers, directors, employees, property managers, Mortgagees, contractors and agents (“Landlord Related Parties”) from responsibility for, waives its entire claim of recovery for and assumes all risks of (i) damage to property or injury to person in or about the Premises, Building or Land from any cause whatsoever except to the extent caused by the gross negligence or willful misconduct of Landlord or any Landlord Related Parties, or (ii) loss resulting from business interruption or loss of income at the Premises.
14.2 Waiver of Claims. Except in the event of its own gross negligence or willful misconduct, Landlord shall not be liable to Tenant and Tenant hereby waives all claims against Landlord and Landlord Related Parties for any injury or damage to any person or property occurring or incurred in connection with or in any way relating to the Premises, Building or Land from any cause. Without limiting the foregoing, neither Landlord nor any Landlord Related Party shall be liable for and there shall be no abatement rent for (a) any damage to Tenant’s property stored with or entrusted to any Landlord Related Party, (b) loss of or damage to any property by theft or any other wrongful or illegal act, or (c) any injury or damage to person or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Premises or Building or from the pipes, appliances, appurtenance or plumbing works thereof or from the roof, street or surface or from any other place or resulting from dampness or any other cause whatsoever or from the acts or omissions of other tenants, occupants or other visitors to the Premises or Building or from any other cause whatsoever, (d) any diminution or shutting off of light, air or view by any structure which may be erected on lands adjacent to the Premises or (e) any latent or other defects in the Premises, Building or Land. Tenant agrees that in no case shall Landlord or any Landlord Related Party be responsible or liable on any theory for any injury to Tenant’s business, loss of profits, loss of income or any other form of consequential damage.
14.3 Survival/No Impairment. The obligations of Tenant under this Article 14 shall survive any termination of this Lease. The foregoing indemnity obligations shall not relieve any insurance carrier of its obligations under any policies required to be carried by either party pursuant to this Lease, to the extent that such policies cover the peril or currents that results in the claims that is subject to the foregoing indemnity.
20 15. INSURANCE.
15.1 Tenant’s Insurance.
(a) Liability Insurance. Tenant shall maintain in full force throughout the Term, commercial general liability insurance providing coverage on an occurrence form basis with limits of not less than Two Million Dollars ($2,000,000.00) each occurrence for bodily injury and property damage combined, or such larger amount as Landlord may prudently require from time to time, covering bodily injury and property damage liability and product liability if a product is sold from the Premises. Each policy of liability insurance required by this Section shall: (i) contain a cross liability endorsement or separation of insureds clause; (ii) provide that any waiver of subrogation rights or release prior to a loss does not void coverage; (iii) provide that it is primary to and not contributing with, any policy of insurance carried by Landlord covering the same loss; (iv) provide that any failure to comply with the reporting provisions shall not affect coverage provided to Landlord, its partners, property managers and Mortgagees; and (v) name Landlord, RiverRock Real Estate Group, Inc. and such other parties in interest as Landlord may from time to time reasonably designate to Tenant in writing, as additional insureds in an Additional Insured Endorsement. Such additional insureds shall be provided at least the same extent of coverage as is provided to Tenant under such policies. The additional insured endorsement shall be in a form at least as broad as endorsement form number CG 20 11 01 96 promulgated by the Insurance Services Office. (b) Personal Property Insurance. Tenant shall maintain in full force and effect on all of its personal property, furniture, furnishings, trade fixtures and equipment from time to time located in, on or upon the Premises (“Tenant’s Property”), and any Alterations (as defined in Article 10) in an amount not less than one hundred percent (100%) of their full replacement value from time to time during the Term, providing protection against all perils, included within the standard form of “all-risk” (i.e., “Special Cause of Loss”) fire and casualty insurance policy. Landlord shall have no interest in the insurance upon Tenant’s Property or Alterations and will sign all documents reasonably necessary in connection with the settlement of any claims or loss by Tenant. Landlord will not carry insurance on Tenant’s Property or Alterations.
(c) Worker’s Compensation Insurance; Employer’s Liability Insurance. Tenant shall, at Tenant’s expense, maintain in full force and effect during the Term of this Lease, worker’s compensation insurance with not less than the minimum limits required by law, and employer’s liability insurance with a minimum limit of coverage of One Million Dollars ($1,000,000.00).
(d) Pollution Legal Liability.
(i) Commercial Pollution Legal Liability. Tenant shall maintain a Commercial Pollution Legal Liability Insurance with coverage limits of not less than Two Million Dollars ($2,000,000) annual aggregate covering claims arising out of or related to Tenant’s Contamination during the term of this Lease. Such policy shall name the City as an additional insured.
21 (ii) Contractor’s Pollution Legal Liability. Tenant shall cause any contractors retained for performing any Alterations of the Premises, the total cost of which exceed Two Hundred Thousand dollars ($200,000) to obtain and maintain Contractor's Pollution Liability Insurance covering the general contractor and all subcontractors in an amount of not less than Two Million Dollars ($2,000,000) with a maximum deductible of Ten Thousand Dollars ($10,000). Any such policy shall name the City as an additional insured. (e) Business Interruption Insurance. Tenant shall, at Tenant’s expense, maintain in full force and effect during the Term of this Lease, Business Interruption Insurance with a limit of liability of at least twelve (12) months estimated gross earning, as defined in the standard form of business interruption insurance policy, of Tenant at the Premises, which insurance shall be on an “all risk” basis (or its equivalent). (f) Automobile Liability. Tenant shall maintain in full force and effect during the Term of this Lease, Commercial Automobile Liability. Such policy shall be in an amount of not less than One Million Dollars ($1,000,000) combined singled limit.
15.2 Requirements For All Policies. Each policy of insurance required under Section
15.1 shall: (a) be in a form, and written by an insurer, reasonably acceptable to Landlord, (b) be maintained at Tenant’s sole cost and expense, and (c) require at least thirty (30) days’ written notice to Landlord prior to any cancellation, nonrenewal or modification of insurance coverage.
Insurance companies issuing such policies shall have rating classifications of “A-” or better and financial size category ratings of “VII” or better according to the latest edition of the Best Key Rating Guide. All insurance companies issuing such policies shall be admitted carriers licensed to do business in the state where the Property is located. Any deductible amount under such insurance shall not exceed $5,000. Tenant shall provide to Landlord, upon request, evidence that the insurance required to be carried by Tenant pursuant to this Section, including any endorsement affecting the additional insured status, is in full force and effect and that premiums therefor have been paid. Tenant shall, at least thirty (30) days prior to expiration of each policy, furnish Landlord with certificates of renewal thereof and shall provide Landlord with at least thirty days prior written notice of any cancellation or modification.
15.3 Certificates of Insurance. Upon execution of this Lease by Tenant, and not less than thirty (30) days prior to expiration of any policy thereafter, Tenant shall furnish to Landlord a certificate of insurance reflecting that the insurance required by this Article is in force, accompanied by an endorsement(s) showing the required additional insureds satisfactory to Landlord in substance and form.
15.4 Landlord’s Insurance. During the Term, Landlord may, at its sole and absolute discretion, keep in effect property insurance covering the Building in amounts not less than the full insurance replacement value thereof (but not on any Alterations or any of Tenant’s Property) with customary limits and deductibles, together with such other types of insurance coverage, if any, as Landlord, in Landlord’s sole discretion, may elect to carry.
16. D
AMAGE OR DESTRUCTION.
16.1 Definitions.
22 (a) “Premises Partial Damage” shall mean damage or
destruction to the improvements on the Premises (or Hazardous Material Condition for which Tenant is not responsible), other than Tenant’s Property (as defined at Section 15.1(b)), or Alterations (as defined at Article 10), which can reasonably be repaired in six (6) months or less from the date of the damage or destruction. Landlord shall notify Tenant in writing within thirty (30) days from the date of the damage or destruction as to whether or not the damage is Partial or Total and the estimated time for repairing said damage. Notwithstanding the foregoing, Premises Partial Damage shall not include damage to windows, doors, and/or other similar items which Tenant has the responsibility to repair or replace pursuant to the provisions of Section
11.1. (b) “Premises Total Destruction” shall mean damage or destruction to the Premises (or Hazardous Material Condition for which Tenant is not responsible), other than Tenant’s Property (as defined at Section 15.1(b)), or Alterations (as defined at Article 10), which cannot reasonably be repaired in six (6) months or less from the date of the damage or destruction. Landlord shall notify Tenant in writing within thirty (30) days from the date of the damage or destruction as to whether or not the damage is Partial or Total. (c) “Insured Loss” shall mean damage or destruction to
improvements on the Premises, other than Tenant’s Property (as defined at Section 15.1(b)), or Alterations (as defined at Article 10), which was caused by an event required to be covered by the insurance described in Section 15.4, irrespective of any deductible amounts or coverage limits involved.
(d) “Replacement Cost” shall mean the cost to repair or rebuild the improvements owned by Landlord (excluding Alterations) at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Laws governing the Premises, and without deduction for depreciation.
(e) “Hazardous Material Condition” shall mean the
occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Material as (defined in Section 12.1), in, on, or under the Premises which requires repair, remediation, or restoration.
16.2 Partial Damage - Insured Loss. If a Premises Partial Damage that is an Insured Loss occurs, Landlord shall repair such damage (but not Tenant’s Property or Alterations) as soon as reasonably possible and this Lease shall continue in full force and effect; provided, however, that Tenant shall, at Landlord’s election, make the repair of any damage or destruction the total cost to repair of which is $10,000 or less, and, in such event, Landlord shall make any applicable insurance proceeds available to Tenant on a reasonable basis for that purpose.
Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair, Tenant shall promptly contribute the shortage in proceeds (except as to the deductible which is Tenant’s responsibility) as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, full replacement cost insurance coverage was not commercially reasonable and available, Landlord shall have no obligation to fully restore the 23 unique aspects of the Premises unless Tenant provides Landlord with the funds to cover same, or adequate assurance thereof, within ten (10) days following receipt of written notice of such shortage and request therefor. If Landlord receives said funds or adequate assurance thereof within said ten (10) day period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If such funds or assurance are not so received, Landlord may nevertheless elect by written notice to Tenant within ten (10) days thereafter to: (a) make such restoration and repair as is commercially reasonable with Landlord paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (b) have this Lease terminate thirty (30) days thereafter. Tenant shall not be entitled to reimbursement of any funds contributed by Tenant to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Section
16.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party.
16.3 Partial Damage - Uninsured Loss. If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Tenant (in which event Tenant shall make the repairs at Tenant’s expense), Landlord may either: (a) 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 (b) terminate this Lease by giving written notice to Tenant within thirty (30) days after receipt by Landlord of knowledge of the occurrence of such damage. Such termination shall be effective sixty (60) days following the date of such notice. In the event Landlord elects to terminate this Lease, Tenant shall have the right within ten (10) days after receipt of the termination notice to give written notice to Landlord of Tenant’s commitment to pay for the repair of such damage without reimbursement from Landlord. Tenant shall provide Landlord with said funds or satisfactory assurance thereof within thirty (30) days after making such commitment. In such event this Lease shall continue in full force and effect, and Landlord shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Tenant does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.
16.4 Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate sixty (60) days following such Destruction.
If the damage or destruction was caused by the gross negligence or willful misconduct of Tenant, Landlord shall have the right to recover Landlord’s damages from Tenant.
16.5 Damage Near End of Term. If at any time during the last six (6) months of this Lease Term (or the last 6 months of any Renewal Term) there is damage for which the cost to repair exceeds one month’s Base Rent, whether or not an Insured Loss, Landlord may terminate this Lease effective sixty (60) days following the date of occurrence of such damage by giving a written termination notice to Tenant within thirty (30) days after the date of occurrence of such damage. Notwithstanding the foregoing, if Tenant at that time has an exercisable option to extend this Lease or to purchase the Premises, then Tenant may preserve this Lease by (a) exercising such option and (b) providing Landlord with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is ten (10) days after Tenant’s receipt of Landlord’s written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Tenant duly exercises such option during such period and provides Landlord with funds (or adequate 24 assurance thereof) to cover any shortage in insurance proceeds, Landlord shall, at Landlord’s commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Tenant fails to exercise such option and provide such funds or assurance during such period, then this Lease shall terminate on the date specified in the termination notice and Tenant’s option shall be extinguished.
16.6 Abatement of Rent. In the event of Premises Partial Damage, Premises Total Destruction or Hazardous Material Condition for which Tenant is not responsible under this Lease, the Rent payable by Tenant for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Tenant’s use of the Premises is impaired, and such abatement shall be Tenant’s sole remedy for such impairment of use. All other obligations of Tenant hereunder shall be performed by Tenant, and Landlord shall have no liability for any such damage, destruction, Hazardous Material Condition, remediation, repair or restoration except as provided herein.
17. C
ONDEMNATION.
If the whole or if any material part of the Premises or Building is taken or condemned for any public or quasi-public use under either state or federal law, by eminent domain or purchase in lieu thereof (a “Taking”), and (a) such Taking renders the Premises or Building unsuitable, in Landlord’s reasonable opinion, for the purposes for which they were constructed; or (b) the Premises or Building cannot be repaired, restored or replaced at reasonable expense to an economically profitable unit, then Landlord may, at its option, terminate this Lease as of the date possession vests in the condemning party. If twenty-five percent (25%) or more of the Premises is taken and if the Premises remaining after such Taking and any repairs by Landlord would be untenantable (in Tenant’s reasonable opinion) for the conduct of Tenant’s business operations, Tenant shall have the right to terminate this Lease as of the date possession vests in the condemning party. The terminating party shall provide written notice of termination to the other party within thirty (30) days after it first receives notice of the Taking. The termination shall be effective as of the effective date of any order granting possession to, or vesting legal title in, the condemning authority. If this Lease is not terminated, Base Rent shall be appropriately adjusted to account for any reduction in the square footage of the Premises. If only a part of the Premises is subject to a Taking and this Lease is not terminated, Landlord, with reasonable diligence, will restore the remaining portion of the Premises as nearly as practicable to the condition immediately prior to the Taking. Tenant hereby waives any and all rights it might otherwise have pursuant to Section 1265.130 of the California Code of Civil Procedure, or any similar or successor Laws. Landlord shall be entitled to any and all compensation, damages, income, rent, awards or any interest thereon which may be paid or made in connection with any such Taking, and Tenant shall have no claim against Landlord for the value of any expired term of this Lease or otherwise; provided, however, that Tenant shall be entitled to receive any award separately allocated by the condemning authority to Tenant for Tenant’s relocation expenses, the value of Tenant’s fixture, equipment and personal property (specifically excluding components of the Premises which under this Lease or by law are or at the expiration of the Term will become the property of Landlord, including, without limitation, fixtures and Alterations), or Tenant’s loss of business goodwill, provide that such award does not reduce any award otherwise allocable or payable to Landlord. 25 18. DEFAULT.
18.1 Events of Default. The occurrence of any of the following shall constitute a “Default” by Tenant:
(a) Tenant fails to make any payment of Rent when due, if payment in full is not received by Landlord within five (5) days after written notice that it is past due.
(b) Tenant abandons the Premises as defined in Section 1951.3 of the California Civil Code.
(c) Tenant fails timely to deliver any subordination document or estoppel certificate requested by Landlord within the applicable time period specified hereinbelow.
(d) Tenant violates the restrictions on Transfer set forth in Article 13.
(e) Tenant ceases doing business as a going concern; makes an assignment for the benefit of creditors; is adjudicated an insolvent, files a petition (or files an answer admitting the material allegations of a petition) seeking relief under any state or federal bankruptcy or other statute, law or regulation affecting creditors’ rights; all or substantially all of Tenant’s assets are subject to judicial seizure or attachment and are not released within thirty (30) days, or Tenant consents to or acquiesces in the appointment of a trustee, receiver or liquidator for Tenant or for all or any substantial part of Tenant’s assets. (f) Tenant fails to perform or comply with any provision of this Lease other than those described in (a) through (e) above, and does not fully cure such failure within fifteen (15) days after notice to Tenant or, if such failure cannot be cured within such fifteen (15) day period, Tenant fails within such fifteen (15)-day period to commence, and thereafter diligently proceed with, all actions necessary to cure such failure as soon as reasonably possible but in all events within ninety (90) days of such notice.
18.2 Remedies. Upon the occurrence of any Default under this Lease, whether enumerated in Section 18.1 or not, Landlord shall have the option to pursue any one or more of the following remedies without any notice (except as expressly prescribed herein) or demand whatsoever. Without limiting the generality of the foregoing, Tenant hereby specifically waives notice and demand for payment of Rent or other obligations, and waives any and all other notices or demand requirements imposed by applicable Law:
(a) Terminate this Lease and Tenant’s right to possession of the Premises and recover from Tenant an award of damages equal to the sum of the following:
(i) The Worth at the Time of Award of the unpaid Rent
which had been earned at the time of termination;
26 (ii) The Worth at the Time of Award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such Rent loss that Tenant affirmatively proves could have been reasonably avoided;
(iii) The Worth at the Time of Award of the amount by
which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such Rent loss that Tenant affirmatively proves could be reasonably avoided discounted to the then present value;
(iv) Any other amount necessary to compensate
Landlord for all the detriment either proximately caused by Tenant’s failure to perform Tenant’s obligations under this Lease or which in the ordinary course of things would be likely to result therefrom; and
(v) All such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under applicable law.
The “Worth at the Time of Award” of the amounts referred to in parts (i) and (ii) above, shall be computed by allowing interest at the lesser of a per annum rate equal to: (A) the greatest per annum rate of interest permitted from time to time under applicable law, or (B) the Prime Rate plus 5% as determined by Landlord, and as referred to in part (iii) above, shall be 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%). (b) Employ the remedy described in California Civil Code § 1951.4 (Landlord may continue this Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations); or
(c) Notwithstanding Landlord’s exercise of the remedy
described in California Civil Code § 1951.4 in respect of an event or events of Default, at such time thereafter as Landlord may elect in writing, to terminate this Lease and Tenant’s right to possession of the Premises and recover an award of damages as provided above.
18.3 No Waiver. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such Rent. No waiver by Landlord of any breach hereof shall be effective unless such waiver is in writing and signed by Landlord.
18.4 Waiver of Redemption, Reinstatement, or Restoration. Tenant hereby waives any and all rights conferred by Section 3275 of the Civil Code of California and by Sections 1174(c) and 1179 of the Code of Civil Procedure of California and any and all other laws and rules of law from time to time in effect during the Lease Term or thereafter providing that Tenant shall
27 have any right to redeem, reinstate or restore this Lease following its termination as a result of Tenant’s breach.
18.5 Remedies Cumulative. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing by agreement, applicable Law or in equity. In addition to other remedies provided in this Lease, Landlord shall be entitled, to the extent permitted by applicable Law, to injunctive relief, or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Lease, or to any other remedy allowed to Landlord at law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of Default shall not be deemed or construed to constitute a waiver of such Default.
18.6 Landlord’s Right to Perform Tenant’s Obligations. If Tenant is in Default of any of its non-monetary obligations under this Lease, in addition to the other rights and remedies of Landlord provided herein, then Landlord may at Landlord’s option, but without any obligation to do so and without further notice to Tenant, perform any such term, provision, covenant or condition or make any such payment and Landlord by reason of doing so shall not be liable or responsible for any loss or damage thereby sustained by Tenant. If Landlord performs any of Tenant’s obligations hereunder in accordance with this Section 18.6, the full amount of the costs and expense incurred or the payments so made or the amount of the loss so sustained shall be immediately be owed by Tenant to Landlord, and Tenant shall promptly pay to Landlord upon demand, as Additional Rent, the full amount thereof with interest thereon from the day of payment by Landlord the lower of ten percent (10%) per annum, or the highest rate permitted by applicable law.
18.7 Severability. This Article 18 shall be enforceable to the maximum extent such enforcement is not prohibited by applicable Law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion.
19. LIMITATION OF LIABILITY.
Notwithstanding anything to the contrary contained in this Lease, the liability of Landlord (and of any successor landlord) shall be governed by applicable state and federal laws for so long as Landlord is a public entity and, at any time thereafter, shall be limited to the interest of Landlord in the Building as the same may from time to time be encumbered. Tenant shall look solely to Landlord’s interest in the Building for the recovery of any judgment. Neither Landlord nor any Landlord Related Party shall be personally liable for any judgment or deficiency, and in no event shall Landlord or any Landlord Related Party be liable to Tenant for any lost profit, damage to or loss of business or a form of special, indirect or consequential damage. Before filing suit for an alleged default by Landlord, Tenant shall give Landlord and the Mortgagee(s) whom Tenant has been notified hold Mortgages (defined in Article 22 below), notice and reasonable time to cure the alleged default. 28 20. SURRENDER OF PREMISES.
At the termination of this Lease or Tenant’s right of possession, Tenant shall remove Tenant’s property including any furniture, fixtures, equipment or cabling installed by or for the benefit of Tenant from the Premises, and quit and surrender the Premises to Landlord, broom clean, and in good order, condition and repair, ordinary wear and tear and damage which Landlord is obligated to repair hereunder excepted. Landlord may, by notice to Tenant not less than sixty (60) days prior to the Expiration Date (except in the event of a termination of this Lease prior to the scheduled Expiration Date, in which event no advance notice shall be required) require Tenant, at Tenant’s expense, remove any Alterations (except as otherwise provided at Section 10.2, above) and repair any damage caused by such removal. If Tenant fails to remove any of Tenant’s property, or to restore the Premises to the required condition, Landlord, at Tenant’s sole cost and expense, shall be entitled (but not obligated) to remove and store Tenant’s property and/or perform such restoration of the Premises. Landlord shall not be responsible for the value, preservation or safekeeping of Tenant’s property. Tenant shall pay Landlord, upon demand, the expenses and storage charges incurred. If Tenant fails to remove Tenant’s property from the Premises or storage, within thirty (30) days after notice, Landlord may deem all or any part of Tenant’s property to be abandoned and, at Landlord’s option, title to Tenant’s property shall vest in Landlord or Landlord may dispose of Tenant’s property in any manner Landlord deems appropriate.
21. H
OLDING OVER.
If Tenant fails to surrender all or any part of the Premises at the termination of this Lease, occupancy of the Premises after termination shall be that of a tenancy at sufferance.
Tenant’s occupancy shall be subject to all the terms and provisions of this Lease and Tenant shall pay an amount (on a per month basis without reduction for partial months during the holdover) equal to 200% of the sum of the Base Rent due for the period immediately preceding the holdover. No holding over by Tenant shall operate to extend the Term. If Tenant does not surrender possession at the end of the Term or sooner termination of this Lease, Tenant shall indemnify and hold Landlord harmless from and against any and all losses or liability resulting from delay in Tenant so surrendering the Premises including, without limitations, any loss or liability resulting from any claim against Landlord made by any succeeding tenant or prospective tenant founded on or resulting from such delay. Any holding over by Tenant with the written consent of Landlord shall thereafter constitute a lease from month to month.
22. M
ORTGAGES.
22.1 Subordination to Mortgages. Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Premises, or Building and any ground lease(s) or other agreements or covenants running with the land now or subsequently arising upon the Building, and to renewals, modifications, refinancing and extensions thereof (collectively referred to as a “Mortgage”).
The party having the benefit of a Mortgage shall be referred to as a “Mortgagee”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall, within ten (10) days written request therefor from Landlord, execute a commercially reasonable subordination agreement in favor of the Mortgagee. Landlord shall use commercially reasonable efforts to
29 obtain for Tenant a non-disturbance provision in any such subordination agreement. As an alternative, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. Upon request, Tenant, shall attorn to any successor to Landlord’s interest in this Lease.
22.2 Mortgage Protection. Tenant shall give to any Mortgagee, in accordance with the notice requirements of Article 25 below, at the same time as it is given to Landlord, a copy of any notices of default given to Landlord, provided that, prior to such notice, Tenant has been notified in writing (by way of notice of assignment of rent and leases, or otherwise) of the existence and address of such Mortgagee. Tenant further agrees that, if Landlord shall have failed to cure such default within the time provided for in this Lease, then the Mortgagee shall have an additional reasonable period of time within which to cure such default, or if such default cannot be cured without Mortgagee pursuing its remedies against Landlord, then mortgagee shall have such additional time as may be necessary to commence and complete a foreclosure proceeding. If, in connection with obtaining financing for the Project, or a portion thereof, Landlord’s lender shall request reasonable modifications to this Lease as a condition to such financing, Tenant shall not unreasonably withhold, delay or defer its consent to such modifications, provided that such modifications do not materially adversely affect Tenant’s rights or increase Tenant’s obligations under this Lease.
23. TENANT’S ESTOPPEL CERTIFICATE.
Within ten (10) days after written request therefor, Tenant shall execute and deliver to Landlord, in a form provided by or satisfactory to Landlord, an estoppel certificate stating, that this Lease is in full force and effect, describing any amendments or modifications thereto, acknowledging that this Lease is subordinate or prior, as the case may be, to any Mortgage and stating any other information Landlord may reasonably request, including the Term, the monthly Base Rent, the date to which Rent has been paid, the amount of any security deposit or prepaid rent, whether either party hereto is in default under the terms of the Lease, and whether Landlord has completed any construction obligations hereunder. Any such estoppel certificate may be relied upon by any person or entity purchasing, acquiring an interest in or extending finance with respect to the Building, or any part thereof. If Tenant fails to provide such certificate within ten (10) days as herein provided, such failure shall at Landlord’s election, constitute a Default and Tenant shall be deemed to have given such certificate as above provided without modification and shall be deemed to have admitted the accuracy of any information supplied by Landlord to a prospective purchaser or mortgagee or deed of trust holder. NOTICE.
All notices shall be in writing and delivered by hand or sent by registered, express, or certified mail, with return receipt requested or with delivery confirmation requested from the U.S. postal service, or sent by overnight or same day courier service at the party’s respective Notice Address(es) set forth in the Basic Lease Information (“Notice Address”).
Each notice shall be deemed to have been received on the earlier to occur of actual delivery or the date on which delivery is refused, or, if Tenant has vacated the Premises or any other Notice Address of Tenant without providing a new Notice Address, three (3) days after notice is deposited in the U.S. mail or with a courier service in the manner described above. Either party may, at any time, change its Notice Address (other than to a post office box address) by giving the other party written notice of the new address.
30 24. LABOR PROVISIONS.
24.1 Equal Opportunity. During the Term, and with respect to person(s) in the Building or Premises or employment or employees at the Premises, Tenant agrees as follows:
(a) Tenant will not discriminate against any guest, visitor, invitee, customer, employee of Tenant or applicant for employment because of employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender identity, gender expression, age, sexual orientation, or military and veteran status. The employees of Tenant shall be treated during employment, without regard to their employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender identity, gender expression, age, sexual orientation, or military and veteran status.
Such action shall include, but not be limited to, the following: employment, upgrading demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rate of pay or other forms of compensation, selection for training, including apprenticeship. Tenant agrees to post in conspicuous places, notices to be provided by the applicable government agencies, setting forth the provisions of this nondiscrimination provision.
(b) Tenant will, in all solicitations or advertisements for employees placed by or on behalf of Tenant, state that all qualified applicants will receive consideration for employment without regard to employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender identity, gender expression, age, sexual orientation, or military and veteran status.
(c) Tenant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice, advising the labor union or worker’s representative of Tenant’s commitments under this Equal Opportunity Clause and shall post copies of notice in conspicuous places available to employee and applications for employment.
(d) Tenant, through any approved sublease, shall require each of its subtenants to comply with the nondiscrimination provisions contained in this Section 26.1.
24.2 Convict Labor. In connection with the performance of work required by this Lease, Tenant agrees not to employ any person undergoing a sentence of imprisonment at hard labor.
24.3 Prevailing Wages and Related Requirements. Tenant acknowledges and agrees any Alterations made by or on behalf of Tenant to the Premises, or any portion thereof, which are paid for in whole or in part by Landlord or which are considered to have been paid for in whole or in part by Landlord (e.g. by virtue of any rents that are reduced, waived or forgiven) will constitute “[c]onstruction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds…”. (California Labor Code section 1720.) Tenant shall comply with any applicable laws, rules and regulations related to construction wages and other construction matters, if and to the extent applicable to the Premises after the Commencement Date including, but not limited to, the provision of Labor Code
31 Section 1720 et seq., and/or Section 2-67 of the Alameda Municipal Code. From and after the Commencement Date, Tenant shall indemnify, defend (with counsel reasonably acceptable to Landlord), and hold harmless the Landlord Related Parties against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Tenant and its contractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq., to employ apprentices pursuant to Labor Code Sections 1777.5 et seq., to require any contractor or subcontractor listed on a bid proposal for a public works project be registered with the Department of Industrial Relations pursuant to Labor Code Section 1725.5, to comply with the other applicable provisions of Labor Code Sections 1720 et seq. and 1777.5 et seq., to meet the conditions of Section 1771.4 of the Labor Code, to require the general contractor for any prevailing wage work to furnish electronic certified payroll records directly to the Labor Commissioner at: https://apps.dir.ca.gov/ecpr/das/altlogin, or to comply with any other regulation related to public contracts. Tenant’s obligation to indemnify, defend and hold harmless under this Section 26.3 shall survive termination of this Lease, and shall be interpreted broadly so as to apply to any legal or administrative proceeding, arbitration, or enforcement action.
25. MISCELLANEOUS.
25.1 Governing Law. This Lease shall be interpreted and enforced in accordance with the Laws of the State of California and Landlord and Tenant hereby irrevocably consent to the jurisdiction and proper venue of such state.
25.2 Severability. If any section, term or provision of this Lease is held invalid by a court of competent jurisdiction, all other sections, terms or severable provisions of this Lease shall not be affected thereby, but shall remain in full force and effect.
25.3 Attorneys’ Fees and Costs. Attorneys’ fees and costs. In the event of any litigation, including administrative proceedings, relating to this Lease, including but not limited to any action or suit by any party, assignee or beneficiary against any other party, beneficiary or assignee, to enforce, interpret or seek relief from any provision or obligation arising out of this Lease, the parties and litigants shall bear their own attorney’s fees and costs. No party of litigant shall be entitled to recover any attorneys’ fees or costs from any other party or litigant, regardless of which party or litigant might prevail.
25.4 Force Majeure. Whenever a period of time is prescribed for the taking of an action by Landlord or Tenant (other than the payment of Rent), the period of time for the performance of such action shall be extended by the number of days that the performance is actually delayed due to strikes, acts of God, shortages of labor or materials, war, terrorist acts, pandemics, civil disturbances, extreme weather and other causes beyond the reasonable control of the performing party (“Force Majeure”).
25.5 Sale. Landlord shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this Lease and in the Building. Upon transfer, Landlord shall be released from any further obligations hereunder and Tenant agrees to look solely to the successor in interest of Landlord for the performance of such obligations, provided that any successor pursuant to a voluntary, third party transfer (but not as part of an involuntary transfer 32 resulting from a foreclosure or deed in lieu thereof) shall have assumed Landlord’s obligations under this Lease.
25.6 Signs. Tenant shall not place any sign upon the Premises without Landlord’s prior written consent. All signage shall comply with Landlord’s signage design criteria, as exist from time to time. In addition, any style, size, materials and attachment method of any such signage shall be subject to Landlord’s prior written consent. The installation of any sign on the Premises by or for Tenant shall be subject to the provisions of this Lease. Tenant shall maintain any such signs installed on the Premises. Unless otherwise expressly agreed herein, Landlord reserves the right to install, and retain all revenues from the installation of, such advertising signs on the Premises, including the roof, as do not unreasonably interfere with the conduct of Tenant’s business.
25.7 Brokers. Landlord and Tenant each represents and warrants to the other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker except the Broker(s) specified in the Basic Lease Information in the negotiating or making of this Lease. Each party agrees to indemnify, defend and hold harmless the other from any claim or claims, and costs and expenses, including attorneys’ fees, incurred by the indemnified party in conjunction with any such claim or claims of any other broker or brokers to a commission in connection with this Lease as a result of the actions of the indemnifying party.
Provided that this Lease is fully executed by the parties hereto, Landlord shall pay a commission to Landlord’s Broker pursuant to a separate written agreement between Landlord and Landlord’s Broker, and Landlord’s Broker shall be responsible for any fee or commission payable to Tenant’s Broker, if any.
25.8 Access by Landlord. In addition to access provided by this Lease, Landlord shall be allowed access to the Premises at all reasonable times throughout the term of this Lease, for any reasonable purpose upon prior written notice to Tenant. Landlord will normally give Tenant a minimum of twenty-four (24) hours prior notice of an intention to enter the Premises, unless the entry is reasonably required on an emergency basis for safety, environmental, operations or security purposes. Tenant shall ensure that a telephone roster is maintained at all times for on- call persons representing Tenant who will be available on short notice, 24 hours a day, 365 days per year, and have authority to use all keys necessary to gain access to the Premises to facilitate entry in time of emergency. Tenant shall ensure that Landlord has a current roster of such on- call personnel and their phone numbers. Tenant shall not change any existing locks, or attach any additional locks or similar devices to any door or window, without providing to Landlord one set of keys therefor. All keys must be returned to Landlord at the expiration or termination of this Lease. Tenant shall have no claim against Landlord for exercise of its rights of access hereunder. Portions of the utilities systems serving the former Naval Air Station Alameda may be located within the Building or Premises. Tenant agrees to allow Landlord and its utility supplier reasonable access to the Premises for operation, maintenance, repair and replacement of these utilities systems as may be required. In executing operation, maintenance, repair or replacement of these systems, Landlord agrees to take commercially reasonable steps to limit interference with the use of the Premises by Tenant.
25.9 Waiver of Right to Jury Trial. Landlord and Tenant waive their respective rights to trial by jury of any contract or tort claim, counterclaim, cross-complaint, or cause of action in
33 any action, proceeding, or hearing brought by either party against the other on any matter arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, or Tenant’s use or occupancy of the Premises, including without limitation any claim of injury or damage or the enforcement of any remedy under any current or future law, statute, regulation, code, or ordinance. Landlord and Tenant agree that this paragraph constitutes a written consent to waiver of trial by jury within the meaning of California Code of Civil Procedure Section 631(f)(2), and Tenant does hereby authorize and empower Landlord to file this paragraph and/or this Lease, as required, with the clerk or judge of any court of competent jurisdiction as a written consent to waiver of jury trial. If the waiver set forth in this Section 27.9 is determined by any court to be invalid because it was executed prior to the commencement of any action, then Landlord and Tenant each covenant and agree to execute and deliver to the other, within five (5) days of a written request by the other, a waiver of the right to trial by jury similar in terms and scope to the waiver set forth in this Section 27.9 at such time following the commencement of such action as such waiver , if then made, would be valid.
25.10 Recordation. Neither this Lease, nor any memorandum, affidavit nor other writing with respect thereto, shall be recorded by Tenant or by anyone acting through, under or on behalf of Tenant without the prior written consent of Landlord, which may be granted or withheld in Landlord’s sole and absolute discretion. Any recording thereof in violation of this provision shall make this Lease null and void at Landlord’s election.
25.11 Article and Section Titles. The Article and Section titles use herein are not to be consider a substantive part of this Lease, but merely descriptive aids to identify the paragraph to which they referred. Use of the masculine gender includes the feminine and neuter, and vice versa.
25.12 Authority. If Tenant is a corporation, partnership, trust, association or other entity, Tenant and each person executing this Lease on behalf of Tenant does hereby covenant and warrant that (a) Tenant is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Tenant has and is duly qualified to do business in California, (c) Tenant has full corporate, partnership, trust, association or other power and authority to enter into this Lease and to perform all Tenant’s obligations hereunder, and (d) each person (and all of the persons if more than one signs) signing this Lease on behalf of Tenant is duly and validly authorized to do so. Upon execution hereof and at Landlord’s request, Tenant shall provide Landlord with a written certification of its Corporate Secretary or other appropriate authorizing officer or partner attesting that at a duly noticed meeting of its Board of Directors or other governing body a resolution has been unanimously adopted approving Tenant’s execution hereof, thereby binding itself to the terms of this Lease and identifying the person(s) authorized to execute this Lease on behalf of Tenant.
25.13 Quiet Possession. Landlord covenants and agrees with Tenant that, upon Tenant’s payment of Rent and observing and performing all of the terms, covenants, conditions, provisions and agreements of this Lease on Tenant’s part to be observed or performed, Tenant shall have the quiet possession of the Premises throughout the Term.
25.14 Asbestos Notification for Commercial Property Constructed Before 1979. Tenant acknowledges that Landlord has advised Tenant that, because of its age, the Building may 34 contain asbestos-containing materials (“ACMs”). If Tenant undertakes any Alterations as may be permitted by Article 10, Tenant shall, in addition to complying with the requirements of Article 10, undertake the Alterations in a manner that avoids disturbing ACMs present in the Building. If ACMs are likely to be disturbed in the course of such work, Tenant shall encapsulate or remove the ACMs in accordance an approved asbestos-removal plan and otherwise in accordance with all applicable Environmental Laws, including giving all notices required by California Health & Safety Code Sections 25915-25919.7.
25.15 Lead Warning Statement. Tenant acknowledges that Landlord has advised Tenant that buildings built before 1978 may contain lead-based paints (“LBP”). Lead from paint, paint chips and dust can pose health hazards if not managed properly. Subject to Article 10 of this Lease, Tenant may at its sole cost and expense, have a state certified LBP Inspector complete a LBP inspection and abatement and provide an abatement certification to Landlord.
Landlord has no specific knowledge of the presence of lead-based paint in the Premises.
25.16 OFAC Certification. Tenant represents, warrants and covenants that: (a) Tenant and its principals are not acting, and will not act, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist, “Specially Designated and Blocked Person” or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and (b) Tenant acknowledges that the breach of this representation, warranty and covenant by Tenant shall be an immediate Default under the Lease.
25.17 Certified Access Specialist Disclosure. Inspection by Certified Access Specialist.
Landlord discloses that the Premises have not undergone inspection by a Certified Access Specialist as referenced in California Civil Code Section 1938 subsection (e) which provides: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises." Pursuant to the foregoing Section 1938(e), Tenant acknowledges and agrees that, if Tenant wishes to have the Premises inspected by a CASp: (i) Tenant must notify Landlord on or before the date when Tenant executes this Lease pursuant to the election below; (ii) the inspection will be at Tenant's sole cost and expense; (iii) the inspection must be scheduled through Landlord and in coordination with the Building’s property manager; (iv) any repairs or modifications necessary to correct any violation of construction-related accessibility standards that is noted in the CASp report shall be Tenant’s responsibility; and (v) Tenant must provide a copy of the CASp report to Landlord on completion. By initialing below, Tenant represents that:
Tenant wishes to have a CASp inspection of the Premises Initials: ______________
35 Tenant hereby waives its right a CASp inspection of the Premises Initials: _____________
25.18 Time of the Essence. Time is of the essence of this Lease and each and all of its provisions.
25.19 Entire Agreement. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understandings pertaining to any such matter shall be effective for any purpose. No provision of this Lease may be amended or added except by an agreement in writing signed by the parties hereto or their respective successors-in-interest.
25.20 Rules and Regulations. Tenant shall faithfully observe and comply with the non- discriminatory rules and regulations attached hereto as Exhibit F and incorporated herein by this reference, as the same may be modified from time to time by Landlord. Any additions or modifications to those rules shall be binding upon Tenant upon Landlord’s delivery of a copy to Tenant.
25.21 Financial Statement. Within thirty (30) days after Landlord’s written request, Tenant shall deliver to Landlord the then current financial statements of Tenant, including a balance sheet and profit and loss statement for the most recent prior year, all prepared in accordance with generally accepted accounting principles consistently applied and shall be certified as accurate in all material respect by an officer of Tenant.
25.22 Relocation Benefits. Tenant acknowledges that upon the expiration or earlier termination of this Lease, for any reason other than a Taking as defined at Article 17, Tenant shall not be a displaced person, and therefore waives any and all claims for relocation benefits, assistances and/or payments under Government Code Sections 7260 et seq., 25 California Code of Regulations Sections 600 et seq., 42 U.S.C. 4601 et seq., 29 C.F.R. Sections 121 et seq. and 49 C.F.R Sections 24.1 et seq. (collectively the “Relocation Assistance Laws”). Any Relocation of the Premises pursuant to Article 24 of this Lease shall be governed by the terms of said article and not the Relocation Assistance Laws. Tenant further acknowledges and agrees that upon the expiration or earlier termination of this Lease for any reason, other than a Taking as hereinabove defined, no claim shall arise, nor shall Tenant assert any claim for loss of business goodwill (as that term is defined at CCP §1263.510) and no compensation for loss of business goodwill shall be paid by Landlord.
25.23 Alameda NAS Historic District. Tenant acknowledges that the Building is located within the NAS Alameda Historic District and has been designated as contributing to the Historic District. In granting, denying or conditioning its consent to any Alterations in accordance with Section 10.1 or the placement of any signs in accordance with Section 27.6, Landlord’s decision will be guided by the terms and conditions of the City’s Historic Preservation Ordinance and other planning and regulatory documents governing properties located within the NAS Alameda Historic District.
25.24 Subdivision and Development of Property. Tenant acknowledges that, without any form of representation or warranty, Landlord (or its successor) may cause the Property to be subdivided or existing parcels to be assembled to facilitate the sale, development or 36 redevelopment of portions of Property which may or may not include those portions of the Property upon which the Building, Land and Parking Areas are located. Such subdivision may require the reservation of easements for utilities and access to adjacent properties or buildings.
As a material inducement for Landlord to enter into this Lease, Tenant agrees not to take any actions, oral or in writing, in opposition to such activities, or the planning thereof by Landlord (or its successor) unless such activity threatens to materially disrupt Tenant’s rights under this Lease.
25.25 Environmental and Planning Documents. Tenant acknowledges that its use of the Premises and any Alterations thereto shall comply with the terms, conditions and requirements of: (a) the Environmental Impact Report for Alameda Point and the Mitigation Monitoring and Reporting Program adopted pursuant thereto; (b) the Master Infrastructure Plan; (c) the Town Center and Waterfront Precise Plan (as applicable); and (d) the Alameda Point Transportation Demand Management Plan. Compliance with the foregoing may include the preparation of a Compliance Strategy consistent with the Transportation Demand Management Plan and payment of transportation program fees.
25.26 Counterparts. This Lease may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
Landlord and Tenant have executed this Lease as of the day and year first above written.
LANDLORD:
City of Alameda,
a charter city and municipal corporation
By: _____________________________
Erin Smith
City Manager
Date: _____________________________
TENANT:
Rain Industries, Inc.,
a Delaware corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
Date: _____________________________
Approved as to Form
By
: _____________________________
Len Aslanian
Assistant City Attorney
By: _____________________________
Name: _____________________________
Dat
e: _____________________________
Recommended for Approval
By
: _____________________________
Lisa N. Maxwell
Community Development Director
EXHIBIT A
PREMISES
EXHIBIT A-1
LAND AREA
EXHIBIT A-2
PARKING
EXHIBIT A-3
COMMON AREAS
INTENTIONALLY OMITTED
EXHIBIT B
COMMENCEMENT LETTER
Date: _____________________
Re: Lease dated as of ______, 2018, by and between City of Alameda, as Landlord, and ____________________, a ____________________, as Tenant, for ______ rentable square feet in the Building ____ located at ____________________, Alameda, California.
Dear __________________:
In accordance with the terms and conditions of the above referenced Lease, Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is _______;
2. The Expiration Date of the Lease is _____________.
Please acknowledge your acceptance of possession and agreement to the terms set forth above by signing all 3 counterparts of this Commencement Letter in the space provided and returning 2 fully executed counterparts to my attention.
Sincerely Agreed and Accepted:
Landlord: City of Alameda
By: ___________________
Name: ___________________
Title:
Tenant: ____________________
By: ___________________
Name: ___________________
Title: ___________________
[Exhibit Do not sign]
EXHIBIT C
ACKNOWLEDGMENT OF RECEIPT
Pursuant to that certain Lease Agreement entered into by and between City of Alameda, a charter city and municipal corporation (“Landlord”) and Rain Industries, Inc., a Delaware corporation (“Tenant”) dated as of ________ ___, 2022 (“Lease”) Tenant hereby acknowledges that Landlord has provided it with copies of the following documents:
ƽ Quitclaim Deed from the United States of America, acting by and through the Department of the Navy to the City of Alameda, dated June 4, 2013, recorded June 6, 2013 as Series No. 2013-______ of Official Records in the Office of the County Recorder, Alameda County, California (“Quitclaim Deed”);
ƽ Declaration of Restrictions (Former Naval Air Station Alameda) dated June 4, 2013, recorded June 6, 2013 as Series No. 2013-199782 in the Office of the County Recorder of Alameda County (“Declaration of Restrictions”).
Pursuant to Section 6.3 of the Lease, Tenant acknowledges receipt of the above referenced documents and agrees that its use of the Premises (as defined in the Lease) shall comply with the restrictions set forth in said documents and failure to do so shall constitute a Default under the Lease.
____________________,
a ____________________
By: _____________________________
Its: _____________________________
Date: _____________________________
1. Solvents in a labeled container in a flammable safety cabinet.2. Led in a labeled container behind proper signage.3. Acids in a labeled container behind proper signage.4. Pesticides in a labeled container behind proper signage.5. Paint in a labeled container in a flammable safety cabinet.6. Printing ink stored with the printer according to manufacturer’s directions. Will be storedin a labeled box in a shelving unit near the printer.7. Petroleum products in a labeled container in a flammable safety cabinet.
EXHIBIT E
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and Regulations. Landlord shall not be responsible to Tenant for the non-performance of any of said Rules and Regulations by or otherwise with respect to the acts or omissions of any other tenants or occupants of the Building. In the event of any conflicts between the Rules and Regulations and other provisions of this Lease, the latter shall control.
1. Landlord shall have the right to control and operate the public portions of the Building and the public facilities, as well as facilities furnished for the common use of the tenants, in such manner as it deems best for the benefit of the tenants generally.
2. No advertisements, pictures or signs of any sort shall be displayed on or outside the Premises or Building without the prior written consent of Landlord. This prohibition shall include any portable signs or vehicles placed within the parking lot, common areas or on streets adjacent thereto for the purpose of advertising or display. Landlord shall have the right to remove any such unapproved item without notice and at Tenant’s expense.
3. Storage of forklift propane tanks, whether interior or exterior, shall be in secured and protected storage and enclosure approved by the local fire department and, if exterior, shall be located in areas specifically designated by Landlord. Tenant shall protect electrical panels and building mechanical equipment from damage from forklift trucks.
4. Machinery, equipment and apparatus belonging to Tenant which causes noise or vibration that may be transmitted to the structure of the Building to such a degree as to be objectionable to Landlord or other tenants or to cause harm to the Building, shall be placed and maintained by Tenant, at Tenant’s expense, on vibration eliminators or other devices sufficient to eliminate the transmission of such noise and vibration. Tenant shall cease using any such machinery which causes objectionable noise and vibration which cannot be sufficiently mitigated.
5. All goods, including materials used to store goods, delivered to the Premises shall be immediately moved into the Premises and shall not be left in parking or exterior loading areas overnight.
6. Tractor trailers which must be unhooked or parked with dolly wheels beyond the concrete loading areas must uses steel plates or wood blocks of sufficient size to prevent damage to the asphalt paving surfaces. No parking or storage of such trailers will be permitted in the auto parking areas adjacent to the Premises or on streets adjacent thereto.
7. Tenant is responsible for the safe storage and removal of all pallets.
Pallets shall be stored behind screen enclosures at locations approved by Landlord.
8. Tenant shall not store or permit the storage or placement of merchandise in or around the common areas surrounding the Premises. No displays or sales of merchandise shall be allowed in the parking lots or other common areas.
2 9. Tenant is responsible for the storage and removal of all trash and refuse.
All such trash and refuse shall be contained in suitable receptacles stored behind screen enclosures at locations approved by Landlord.
10. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substances of any kind whatsoever shall be thrown therein. The expense of the repair of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the tenant who, or whose employees, agents, visitors or licensees shall have caused the same.
11. Tenant shall cooperate fully with Landlord to ensure the effective operation of the Building’s air conditioning systems. If Tenant shall so use the Premises that noxious or objectionable fumes, vapors and/or odors are created, then Tenant shall provide proper ventilation equipment for the discharge of such fumes, vapors and odors so that they shall not enter into the air conditioning system or be discharged into other vents or flues of the building or annoy any of the other tenants of the Building or adjacent property. The design, location and installation of such equipment shall be subject to the Landlord’s approval.
12. All window coverings installed by Tenant and visible from the outside of the Building require the prior written approval of Landlord.
13. The sashes, sash doors, skylights, windows and doors that reflect or admit light or air into the halls, passageways or other public places in the Building shall not be covered or obstructed by Tenant.
14. Tenant shall not overload the floor of the Premises.
15. No awnings or other projections over or around the windows or entrances of the Premises shall be installed by any tenant without the prior written consent of Landlord.
16. Tenant shall not permit any animals, including, but not limited to, household pets (but excluding service animals, which are permitted), to be brought or kept in or about the Premises or Building or any of the common areas.
17. Tenant hereby acknowledges that Landlord shall have no obligation to provide guard service or other security measures for the benefit of the Premises or Building.
Tenant hereby assumes all responsibility for the protection of Tenant and its agents, employees, contractors, invitees and guests, and the property thereof, from acts of third parties, including keeping doors locked and other means of entry to the Premises closed.
18. No auction, liquidation, fire sale, going out of business or bankruptcy sale shall be conducted in or about the Premises without the prior written consent of Landlord.
19. No tenant shall use or permit the use of any portion of the Premises for living quarters, sleeping apartments or lodging rooms.
20. Tenant, Tenant’s agents, employees, contractors, licensees, or visitors shall not park any vehicles in driveways, service entrances, or areas posted as no parking.
3 21. If the Premises are or become infested with vermin as a result of the use or any misuse or neglect of the Premises by Tenant, its agents, employees, contractors, visitors or licensees, Tenant shall forthwith, at Tenant’s expense, cause the same to be exterminated from time to time to the satisfaction of Landlord and shall employ such licensed exterminators as shall be approved in writing in advance by Landlord.
22. Tenant shall not use the name of the Building for any purpose other than as the address of the business to be conducted by Tenant in the Premises, nor shall Tenant use any picture of the Building in its advertising, stationary or in any other manner without the prior written permission of Landlord. Landlord expressly reserves the right at any time to change said name without in any manner being liable to Tenant therefor.
23. Tenant, its employees and agents shall not loiter in or on the entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators, vestibules or any common areas of the building for the purpose of smoking tobacco products or for any other purposes, nor in any way obstruct such areas, and shall use them only as a mean of ingress and egress from the Premises.
24. Landlord reserves the right to exclude from the Building or the Common Areas any person who, in the judgment of Landlord, is intoxicated or under the influence of liquor or drugs, or who shall in any manner do any act in violation of these Rules and Regulations.
25. Landlord reserves the right at any time to change or rescind any one or more of these Rules and Regulations, or to make such other and further reasonable Rules and Regulations as in Landlord’s judgment may from time to time be necessary for the management, safety, care and cleanliness of the Premises, common areas of the Building and Building, and for the preservation of good order therein, as well as for the convenience of other occupants and tenants thereof. Landlord may waive any one or more of these Rules and Regulations for the benefit of any particular tenant, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of any other tenant, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all tenants of the Building. Tenant shall be deemed to have read these Rules and Regulations and to have agreed to abide by them as a condition to its occupancy of the Premises.
-11-
such changes in the context of such provisions as are necessary to substitute the committee and its members for the Board of Directors and its members; provided, however, that the time of regular meetings of committees may be determined either by resolution of the Board of Directors or by resolution of the committee, that special meetings of committees may also be called by resolution of the Board of Directors and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directors may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
5.1 Officers
The officers of the corporation shall be a president and a secretary. The corporation may also have, at the discretion of the Board of Directors, a chief executive officer, a chief financial officer, a treasurer, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and any such other officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws. Any number of offices may be held by the same person.
5.2 Appointment Of Officers
The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Sections 5.3 or 5.5 of these bylaws, shall be appointed by the Board of Directors, subject to the rights (if any) of an officer under any contract of employment.
5.3 Subordinate Officers
The Board of Directors may appoint, or empower the chief executive officer or the president to appoint, such other officers and agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board of Directors may from time to time determine.
5.4 Removal And Resignation Of Officers
Subject to the rights (if any) of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board of Directors at any regular or special meeting of the board or, except in the case of an officer chosen by the Board of Directors, by any officer upon whom the power of removal is conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the corporation.
Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the
-12-
resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights (if any) of the corporation under any contract to which the officer is a party.
5.5 Vacancies In Offices
Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors.
5.6 Chief Executive Officer
Subject to such supervisory powers (if any) as may be given by the Board of Directors to the chairperson of the board (if any), the chief executive officer of the corporation (if such an officer is appointed) shall, subject to the control of the Board of Directors, have general supervision, direction, and control of the business and the officers of the corporation and shall have the general powers and duties of management usually vested in the office of chief executive officer of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors or these bylaws.
The person serving as chief executive officer shall also be the acting president of the corporation whenever no other person is then serving in such capacity.
5.7 President
Subject to such supervisory powers (if any) as may be given by the Board of Directors to the chairperson of the board (if any) or the chief executive officer, the president shall have general supervision, direction, and control of the business and other officers of the corporation. He or she shall have the general powers and duties of management usually vested in the office of president of a corporation and such other powers and duties as may be prescribed by the Board of Directors or these bylaws.
The person serving as president shall also be the acting chief executive officer, secretary or treasurer of the corporation, as applicable, whenever no other person is then serving in such capacity.
5.8 Vice Presidents
In the absence or disability of the chief executive officer and president, the vice presidents (if any) in order of their rank as fixed by the Board of Directors or, if not ranked, a vice president designated by the Board of Directors, shall perform all the duties of the president and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors, these bylaws, the president or the chairperson of the board.
5.9 Secretary
The secretary shall keep or cause to be kept, at the principal executive office of the corporation or such other place as the Board of Directors may direct, a book of minutes of all
-13-
meetings and actions of directors, committees of directors, and stockholders. The minutes shall show the time and place of each meeting, the names of those present at directors¶ meetings or committee meetings, the number of shares present or represented at stockholders¶ meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation¶s transfer agent or registrar, as determined by resolution of the Board of Directors, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates (if any) evidencing such shares, and the number and date of cancellation of every certificate (if any) surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors required to be given by law or by these bylaws. He or she shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by these bylaws.
5.10 Chief Financial Officer
The chief financial officer (if such an officer is appointed) shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares.
The books of account shall at all reasonable times be open to inspection by any member of the Board of Directors.
The chief financial officer shall render to the chief executive officer, the president, or the Board of Directors, upon request, an account of all his or her transactions as chief financial officer and of the financial condition of the corporation. He or she shall have the general powers and duties usually vested in the office of chief financial officer of a corporation and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or these bylaws.
The person serving as the chief financial officer shall also be the acting treasurer of the corporation whenever no other person is then serving in such capacity. Subject to such supervisory powers (if any) as may be given by the Board of Directors to another officer of the corporation, the chief financial officer shall supervise and direct the responsibilities of the treasurer whenever someone other than the chief financial officer is serving as treasurer of the corporation.
5.11 Treasurer
The treasurer (if such an officer is appointed) shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records with respect to all bank accounts, deposit accounts, cash management accounts and other investment accounts of the corporation. The books of account shall at all reasonable times be open to inspection by any member of the Board of Directors.
RAIN INDUSTRIES INC
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS
December 02, 2019
In accordance with Section 141(f) of the Delaware General Corporation Law and the Bylaws of Rain Industries Inc D 'HODZDUH FRUSRUDWLRQ WKH ³ Company´
WKH XQGHUVLJQHG
FRQVWLWXWLQJDOORIWKHPHPEHUVRIWKH&RPSDQ\¶V%RDUGRI'LUHFWRUV WKH³ Board´
KHUeby take
the following actions and adopt the following resolutions by unanimous written consent without a meeting:
1. Incorporator
RESOLVED: That every action taken or authorized with respect to the Company by the Incorporator of the Company is ratified and the Incorporator is hereby discharged from any further liabilities or duties with respect to the Company and the Company further agrees to indemnify and hold harmless the Incorporator from any liability incurred in the past or the future with respect to organizing the Company.
2. Minute Book
RESOLVED: That the Company shall maintain as part of its corporate records a book, LQ HOHFWURQLF RU SK\VLFDO IRUP HQWLWOHG ³0LQXWH %RRN´ ZKLFK VKDOO LQFOXGH EXW QRW EH limited to, (i) a record of its Certificate of Inc orporation and amendments thereto, (ii) its Bylaws and amendments thereto, and (iii) minutes of all meetings of its directors and of its stockholders with the time and place of holding, whether regular or special (and if special how authorized), the notice thereof given, the number of shares present or UHSUHVHQWHGDWVWRFNKROGHUV¶PHHWLQJVDQGWKHSURFHHGLQJVRIWKHPHHWLQJV
3. Election of Officers
RESOLVED: That the following persons are elected as officers of the Company to the offices set forth opposite their respective names, to serve at the pleasure of the Board of Directors:
Title Name
Chief Executive Officer & President Maxwell Brodie
Chief Financial Officer & Treasurer Ephraim Nowak
Secretary Bryan Hatton
ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED?
INSR ADDLSUBRLTR INSDWVD
PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext):E-MAILADDRESS:INSURER A :INSURED INSURER B :INSURER C :INSURER D :INSURER E :INSURER F :
POLICY NUMBERPOLICY EFFPOLICY EXPTYPE OF INSURANCELIMITS(MM/DD/YYYY)(MM/DD/YYYY)
AUTOMOBILE LIABILITY
UMBRELLA LIABEXCESS LIABWORKERS COMPENSATIONAND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
AUTHORIZED REPRESENTATIVE
EACH OCCURRENCE$DAMAGE TO RENTEDCLAIMS-MADEOCCUR $PREMISES (Ea occurrence)MED EXP (Any one person)$PERSONAL & ADV INJURY$GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE$PRO-POLICYLOC PRODUCTS - COMP/OP AGGJECT OTHER: $COMBINED SINGLE LIMIT$(Ea accident)ANY AUTO BODILY INJURY (Per person)$OWNEDSCHEDULEDBODILY INJURY (Per accident)$AUTOS ONLYAUTOSHIREDNON-OWNEDPROPERTY DAMAGE$AUTOS ONLYAUTOS ONLY(Per accident)$OCCUR EACH OCCURRENCECLAIMS-MADEAGGREGATE$DEDRETENTION$ PEROTH-STATUTEERE.L. EACH ACCIDENTE.L. DISEASE - EA EMPLOYEE$If yes, describe underE.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGENAIC #
COMMERCIAL GENERAL LIABILITY
Y / NN / A(Mandatory in NH)
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORETHE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED INACCORDANCE WITH THE POLICY PROVISIONS.
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIODINDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THISCERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIESBELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZEDREPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement onthis certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
COVERAGESCERTIFICATE NUMBER:REVISION NUMBER:
CERTIFICATE HOLDERCANCELLATION
© 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03)
CERTIFICATE OF LIABILITY INSURANCEDATE (MM/DD/YYYY)
$
$$$$
The ACORD name and logo are registered marks of ACORD
10/14/2022
(510) 530-4415(888) 945-1230
Rain Industries, Inc.490 Chadbourne RdSuite A130Fairfield, CA 94534 A 1,000,000XX02-LX-065044420-14/29/20224/29/20235,0001,000,0002,000,000 1,000,000A XX29-UD-019919726-010/13/20224/29/20231,000,000B 1510003098/15/20228/15/20231,000,000Y 1,000,0001,000,000ACommercial Property02-LX-065044420-14/29/2022BusinessInterruption400,000ABusiness Auto06-CA-010176981-14/29/20224/29/2023Limit1,000,000Business Auto: $1,000,000 each occurrence City of AlamedaAlameda City Hall2263 Santa Clara AveAlameda, CA 94501 RAININD-01BTOMA
Aviation Marine Insurance Services Inc.4000 Bridgeway, Suite 101Sausalito, CA 94965Preferred Aviation Underwriters, LLCQBE Insurance Group, LTD X4/29/2023
X X
X X
86980 (11/04)
IMPORTANT NOTICE
STATE DMV PROOF OF COVERAGE REPORTING REQUIREMENTS
The Department of Motor Vehicles (DMV) in various states has implemented anti-fraud systems that require that proof of coverage be on file in their data bases. These various state DMV’s presently mandate the filing of specific data elements as State law(s) require.
These data elements must be supplied to us upon binding Automobile Liability Coverage.
Without the information, we are unable to make our mandatory reports to the DMV. (It is critical that you provide information in a timely manner to your broker. If we are unable to comply with the reporting requirements, it may result in loss of your tags, fines, impoundment of your vehicle(s), including cargo, and your inability to register your vehicle(s).
We have advised your broker as to the Automobile Liability Insurance Reporting Procedures for reporting Vehicle Data to the various states, available on our broker website.
Additionally, we have advised your broker on how to retrieve “templates” on our web site for capture and transmission of vehicle information for such reporting.
It is also your responsibility to supply us, through your broker, with all of the required data on changes to your list of vehicles that are covered by the policy (vehicle list) after the inception date of the policy. Failure to do so may result in the previously mentioned consequences.
The information to be reported varies by state, but may include:
The asset owner (registrant) name, address (including zip code) and Federal Employers Identification Number or Drivers License Number.
The number of vehicles registered in each state covered under your policy.
The complete Vehicle Identification Number (VIN) in several of these various states.
The National Insurance Crime Bureau’s (NICB) Year, Make and Model of the vehicle.
The Broker’s information, including License number, in some states.
The policy number (number of the policy) that we have issued to you.
The renewal number of the policy that we have issued to you (if applicable) For some states, this information must be reported as soon as 7 days after effective date of coverage or change of vehicles.
Please contact your broker to ensure that all of the necessary information has been, and continues to be, provided to us. Without this information, we are unable to make our reports to the various DMVs.
Thank you for your attention to this matter.
Illinois National Insurance Company
(a capital stock company)
1271 Ave of the Americas FL 37
New York, NY 10020
(212) 458 5000
BUSINESS AUTO DECLARATIONS
GENERAL CHANGE ENDORSEMENT
POLICY NO. 06-CA-010176981-1 END: 003
RENEWAL OF 06-CA-010176981-0
ACCOUNT NUMBER:
NAMED INSURED AND MAILING ADDRESS AGENCY AND MAILING ADDRESS93575
RAIN INDUSTRIES, INC
490 CHADBOURNE ROAD SUITE A130
FAIRFIELD, CA 94534
PREFERRED AVIATION UNDERWRITER
3321 N BERKLEY LAKE RD STE 200
DULUTH, GA 30096
POLICY PERIOD: FROM 04/29/2022 TO 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS
SHOWN ABOVE
Effective 11/01/2022 this policy is amended as shown.
COMMERCIAL AUTO
For an additional/return premium, the items below are changed as indicated:
Add the following additional insureds:
RiverRock Real Estate Group, Inc.
2392 Morse Ave, Suite 100
Irvine, CA 92614
RiverRock Real Estate Group, Inc., as Agent for City of Alameda 950 W. Mall Square, suite 239
Alameda, CA 94501
City of Alameda
Alameda City Hall
2263 Santa Clara Ave
Alameda, CA 94501
ANNUALIZED EFFECT OF ENDORSEMENT $ 0
ADDITIONAL COMMERCIAL AUTO PREMIUM $ 0
TOTAL PREMIUM $ 0.00
Illinois National Insurance Company
COMMERCIAL AUTOMOBILE POLICY
GENERAL CHANGE ENDORSEMENT
POLICY NO. 06-CA-010176981-1 END: 003
INSURED: RAIN INDUSTRIES, INC
EFFECTIVE DATE: 04/29/2022
AGENT: PREFERRED AVIATION UNDERWRITER
THESE DECLARATIONS, IF APPLICABLE, TOGETHER WITH THE COMMON POLICY CONDITIONS, COVERAGE
FORM(S) AND ENDORSEMENTS, AND SUPPLEMENTAL FORM DECLARATION(S), IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE THE ABOVE NUMBERED POLICY.
119370 (10/15) Page 1 of 1
Policy No: 06-CA-010176981-1 003
Effective 12:01 a.m. 11/01/2022
AUTHORIZED REPRESENTATIVE SIGNATURE PAGE
THIS IS TO CERTIFY THAT THE INSURANCE COMPANY HAS ISSUED THE ATTACHED ENDORSEMENT TO THE
INSURED NAMED ON THE DECLARATIONS PAGE FOR THE REMAINDER OF THE POLICY PERIOD INDICATED ON SUCH DECLARATIONS PAGE. THE INSURANCE AFFORDED BY THIS ENDORSEMENT IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF THE POLICY.
Authorized Representative
___________________________________________________
COUNTERSIGNATURE (Where Applicable)
Illinois National Insurance Company
1271 Ave of the Americas FL 37, New York, NY 10020
COMMERCIAL AUTOMOBILE POLICY
FORMS SCHEDULE
POLICY NO: 06-CA-010176981-1 END: 003
ACCOUNT NUMBER:
NAMED INSURED AND MAILING ADDRESS AGENCY AND MAILING ADDRESS93575
RAIN INDUSTRIES, INC
490 CHADBOURNE ROAD SUITE A130
FAIRFIELD, CA 94534
PREFERRED AVIATION UNDERWRITER
3321 N BERKLEY LAKE RD STE 200
DULUTH, GA 30096
POLICY PERIOD: FROM 04/29/2022 TO 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE.
11-02-22 Page 1 of 1
NOTE: IF NO ENTRY APPEARS ON THE FOLLOWING ENDORSEMENTS, INFORMATION REQUIRED TO COMPLETE
THE FORM WILL BE SHOWN ON THE SUPPLEMENTAL FORM DECLARATION IMMEDIATELY FOLLOWING THE
APPLICABLE ENDORSEMENT
COMMERCIAL AUTO POLICY DOCUMENTS
86980 1104 State DMV Proof of Coverage Reporting Requirements
CA-ADD-INTEREST-
SCHEDULE
Additional Interest Schedule
IL-119370 119370 1015-Authorized Representative Signature Page IL-141636 Policyholder Notice - Change to Insurer's Address
COMMERCIAL AUTO POLICY FORMS
IL1201 11-85 Policy Changes Added
Illinois National Insurance Company
1271 Ave of the Americas FL 37, New York, NY 10020
COMMERCIAL AUTOMOBILE POLICY
ADDITIONAL INTEREST SCHEDULE
POLICY NO: 06-CA-010176981-1 END: 003
RENEWAL OF 06-CA-010176981-0
ACCOUNT NUMBER:
NAMED INSURED AND MAILING ADDRESS AGENCY AND MAILING ADDRESS 93575
RAIN INDUSTRIES, INC
490 CHADBOURNE ROAD SUITE A130
FAIRFIELD, CA 94534
PREFERRED AVIATION UNDERWRITER
3321 N BERKLEY LAKE RD STE 200
DULUTH, GA 30096
POLICY PERIOD: FROM 04/29/2022 TO 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE.
11-02-22 Page 1 of 1
ADDITIONAL INTERESTS
Additional Interest Type Name Address Change Status
Additional Insured
- Where Required
Under Contract or
Agreement
City of Alameda Alameda City Hall, 2263
Santa Clara Ave, Alameda,
CA 94501
Added
Additional Interest Type Name Address Change Status
Additional Insured
- Where Required
Under Contract or
Agreement
RiverRock Real Estate
Group, Inc.
2392 Morse Ave, Suite
100, Irvine, CA 92614
Added
Additional Interest Type Name Address Change Status
Additional Insured
- Where Required
Under Contract or
Agreement
RiverRock Real Estate
Group, Inc., As Agent for
the City of Alameda
950 W. Mall Square, Suite
230, Alameda, CA 94501
Added
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
IL 12 01 11 85 Copyright, Insurance Services Office, Inc., 1983 Copyright, ISO Commercial Risk Services, Inc., 1983
POLICY CHANGES
Policy Change
Number 003
POLICY NUMBER
06-CA-010176981-1 END:
003
POLICY CHANGES
EFFECTIVE
11/01/2022
COMPANY
Illinois National Insurance Com-
pany
NAMED INSURED
RAIN INDUSTRIES, INC
AUTHORIZED REPRESENTATIVE
COVERAGE PARTS AFFECTED
Commercial Auto
CHANGES
Add the following additional insureds: RiverRock Real Estate Group, Inc. 2392 Morse Ave, Suite 100 Irvine, CA 92614 RiverRock Real Estate Group, Inc., as Agent for City of Alameda 950 W. Mall Square, suite 239 Alameda, CA 94501 City of Alame- da Alameda City Hall 2263 Santa Clara Ave Alameda, CA 94501 Authorized Representative Signature
POLICYHOLDER DISCLOSURE
NOTICE OF TERRORISM INSURANCE COVERAGE
(COVERAGE INCLUDED)
Coverage for acts of terrorism is included in your policy. You are hereby notified that under the Terrorism Risk Insurance Act, as amended in 2015, the definition of act of terrorism has changed. As defined in Section 102(1) of the Act: The term “act of terrorism” means any act that is certified by the Secretary of the Treasury—in consultation with the Secretary of Homeland Security, and the Attorney General of the United States—to be an act of terrorism; to be a violent act or an act that is dangerous to human life, property, or infrastructure; to have resulted in damage within the United States, or outside the United States in the case of certain air carriers or vessels or the premises of a United States mission; and to have been committed by an individual or individuals as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. Under your coverage, any losses resulting from certified acts of terrorism may be partially reimbursed by the United States Government under a formula established by the Terrorism Risk Insurance Act, as amended. However, your policy may contain other exclusions which might affect your coverage, such as an exclusion for nuclear events. Under the formula, the United States Government generally reimburses 80% beginning on January 1, 2020 of covered terrorism losses exceeding the statutorily established deductible paid by the insurance company providing the coverage. The Terrorism Risk Insurance Act, as amended, contains a $100 billion cap that limits U.S. Government reimbursement as well as insurers’ liability for losses resulting from certified acts of terrorism when the amount of such losses exceeds $100 billion in any one calendar year. If the aggregate insured losses for all insurers exceed $100 billion, your coverage may be reduced.
The portion of your annual premium that is attributable to coverage for acts of terrorism is $ 6, and does not include any charges for the portion of losses covered by the United States government under the Act.
96556 (3/20)
© 2020 National Association of Insurance Commissioners
GRANITE STATE INSURANCE COMPANY
1271 Ave of the Americas FL 37, New York, NY 10020
COMMON POLICY DECLARATIONS
GENERAL CHANGE ENDORSEMENT
POLICY NO: 02-LX-065044420-1 END: 003
RENEWAL OF 02-LX-065044420-0
ACCOUNT NUMBER:
NAMED INSURED AND MAILING ADDRESS AGENCY AND MAILING ADDRESS 93575
RAIN INDUSTRIES, INC
490 CHADBOURNE ROAD SUITE A130
FAIRFIELD, CA 94534
PREFERRED AVIATION UNDERWRITER
3321 N BERKLEY LAKE RD STE 200
DULUTH, GA 30096
POLICY PERIOD: FROM 04/29/2022 TO 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE.
10-17-22 Page 1 of 1
Effective 10/13/2022 this policy amended as shown.
COMMON POLICY DECLARATIONS
For an additional/return premium, the items below are changed as indicated:
Adding Additional Insured
Adding BI/EE
ADDITIONAL PREMIUM DUE FOR COMMERCIAL PROPERTY $251
ADDITIONAL PREMIUM DUE FOR COMMERCIAL GENERAL LIABILITY $138
PREMIUM DUE FOR COMMERCIAL CRIME AND FIDELITY
NO ADDITIONAL OR RETURN PREMIUM DUE FOR COMMERCIAL INLAND
MARINE NO CHANGE
PREMIUM DUE FOR PROFESSIONAL LIABILITY
PREMIUM DUE FOR CYBEREDGE
ADDITIONAL TRANSACTION PREMIUM: $389
TOTAL SURCHARGE / TAXES / FEES:
TOTAL PREMIUM: $389
FORMS AND ENDORSEMENTS APPLICABLE TO ALL COVERAGE PARTSSee Forms Schedule NOTE: IF NO ENTRY APPEARS ON THE ABOVE ENDORSEMENTS, INFORMATION REQUIRED TO COMPLETE
THE FORM WILL BE SHOWN ON THE SUPPLEMENTAL FORM DECLARATION IMMEDIATELY FOLLOWING THE APPLICABLE ENDORSEMENT.
GRANITE STATE INSURANCE COMPANY
1271 Ave of the Americas FL 37, New York, NY 10020
GENERAL LIABILITY
GENERAL CHANGE ENDORSEMENT
POLICY NO: 02-LX-065044420-1 END: 003
RENEWAL OF: 02-LX-065044420-0
ACCOUNT NUMBER:
NAMED INSURED AND MAILING ADDRESS AGENCY AND MAILING ADDRESS 93575
RAIN INDUSTRIES, INC
490 CHADBOURNE ROAD SUITE A130
FAIRFIELD, CA 94534
PREFERRED AVIATION UNDERWRITER
3321 N BERKLEY LAKE RD STE 200
DULUTH, GA 30096
POLICY PERIOD: FROM 04/29/2022 TO 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE.
10-17-22 Page 1 of 1
I
IN RETURN FOR THE PAYMENT OF THE PREMIUM, AND SUBJECT TO ALL TERMS OF THIS POLICY, WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS POLICY.
TERRORISM RISK INSURANCE ACT IS INCLUDED $2
GENERAL LIABILITY PREMIUM $138
FORMS AND ENDORSEMENTS
APPLYING TO THIS COVERAGE PART AND MADE PART OF THIS POLICY AT TIME OF ISSUE: See Forms Schedule NOTE: IF NO ENTRY APPEARS ON THE ABOVE ENDORSEMENTS, INFORMATION REQUIRED TO COMPLETE
THE FORM WILL BE SHOWN ON THE SUPPLEMENTAL FORM DECLARATION IMMEDIATELY FOLLOWING THE APPLICABLE ENDORSEMENT.
THESE DECLARATIONS AND THE COMMON POLICY DECLARATIONS, IF APPLICABLE, TOGETHER WITH THE
COMMON POLICY CONDITIONS, COVERAGE FORM(S) AND ENDORSEMENTS, AND SUPPLEMENTAL FORM DECLARATIONS), IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE THE ABOVE NUMBERED POLICY.
GRANITE STATE INSURANCE COMPANY
1271 Ave of the Americas FL 37, New York, NY
COMMERCIAL PROPERTY
GENER AL CHANGE EN DO RSEME NT
POLICY NO. 0 2-LX-06 50 444 20 -1/ 003
RENEWAL OF 02-LX-065044420-0
A CCOUNT NUMB ER:
NAM ED I NSURED AND MAI LING AD D RESS AGENCY AND M AI LING AD D RESS 93 575
RA IN IN DU STRIES, INC
49 0 CHADB OU RN E R OA D SU ITE A13 0
FAIR FIE LD, C A 94 53 4
PREFERRED AVIATION UN DER WRI TER
33 21 N B ER KLEY L AKE RD STE 20 0
DULUTH, GA 30096
POLICY PERIOD: From 04/29/2022 to 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE. 10-17-22 Page 1 of 2
LOCATION: 1 BUILDING: 1
PROPERTY AT YOUR PREMISES
ADDRESS: 5291 NW A AVENUE, PENDLETON, OR 97801
BUILDING DESCRIPTION: HANGAR
PROTECTION CLASS: 4 CONSTRUCTION: NON-COMBUSTIBLE
COVERAGES PROVIDED
INSURANCE AT THE DESCRIBED PREMISES APPLIES ONLY FOR COVERAGES FOR WHICH AN AMOUNT OF INSURANCE IS SHOWN
COVERAGE CAUSE OF LOSS DED COINSURANCE AMOUNT OF INSURANCE Business Income Special Including
Theft
100% $400,000
Business Income Including Rental
Value
OPTIONAL COVERAGES
TERRORISM RISK INSURANCE ACT IS INCLUDED $4
COMMERCIAL PROPERTY PREMIUM $251
GRANITE STATE INSURANCE COMPANY
1271 Ave of the Americas FL 37, New York, NY
COMMERCIAL PROPERTY
GENER AL CHANGE EN DO RSEME NT
POLICY NO. 0 2-LX-06 50 444 20 -1/ 003
RENEWAL OF 02-LX-065044420-0
A CCOUNT NUMB ER:
NAM ED I NSURED AND MAI LING AD D RESS AGENCY AND M AI LING AD D RESS 93 575
RA IN IN DU STRIES, INC
49 0 CHADB OU RN E R OA D SU ITE A13 0
FAIR FIE LD, C A 94 53 4
PREFERRED AVIATION UN DER WRI TER
33 21 N B ER KLEY L AKE RD STE 20 0
DULUTH, GA 30096
POLICY PERIOD: From 04/29/2022 to 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE. 10-17-22 Page 2 of 2
FORMS AND ENDORSEMENTS
APPLYING TO COMMERCIAL PROPERTY AND MADE PART OF THIS POLICY AT TIME OF ISSUE:
See Forms Schedule
NOTE: IF NO ENTRY APPEARS ON THE ABOVE ENDORSEMENTS, INFORMATION REQUIRED TO COMPLETE
THE FORM WILL BE SHOWN ON THE SUPPLEMENTAL FORM DECLARATION IMMEDIATELY FOLLOWING THE APPLICABLE ENDORSEMENT.
THESE DECLARATIONS, IF APPLICABLE, TOGETHER WITH THE COMMON POLICY CONDITIONS, COVERAGE
FORM(S) AND ENDORSEMENTS, AND SUPPLEMENTAL FORM DECLARATION(S), IF ANY, ISSUED
TO FORM A PART THEREOF, COMPLETE THE ABOVE NUMBERED POLICY 119370 (10/15) Page 1 of 1
Policy No: 02-LX-065044420-1 003
Effective 12:01 a.m. 10/13/2022
AUTHORIZED REPRESENTATIVE SIGNATURE PAGE
THIS IS TO CERTIFY THAT THE INSURANCE COMPANY HAS ISSUED THE ATTACHED ENDORSEMENT TO THE
INSURED NAMED ON THE DECLARATIONS PAGE FOR THE REMAINDER OF THE POLICY PERIOD INDICATED ON SUCH DECLARATIONS PAGE. THE INSURANCE AFFORDED BY THIS ENDORSEMENT IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF THE POLICY.
Authorized Representative
___________________________________________________
COUNTERSIGNATURE (Where Applicable)
GRANITE STATE INSURANCE COMPANY
1271 Ave of the Americas FL 37, New York, NY 10020
FORMS SCHEDULE
POLICY NO: 02-LX-065044420-1 END: 003
RENEWAL OF: 02-LX-065044420-0
ACCOUNT NUMBER:
NAMED INSURED AND MAILING ADDRESS AGENCY AND MAILING ADDRESS 93575
RAIN INDUSTRIES, INC
490 CHADBOURNE ROAD SUITE A130
FAIRFIELD, CA 94534
PREFERRED AVIATION UNDERWRITER
3321 N BERKLEY LAKE RD STE 200
DULUTH, GA 30096
POLICY PERIOD: FROM 04/29/2022 TO 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE.
10-17-22 Page 1 of 1
NOTE: IF NO ENTRY APPEARS ON THE FOLLOWING ENDORSEMENTS, INFORMATION REQUIRED TO
COMPLETE THE FORM WILL BE SHOWN ON THE SUPPLEMENTAL FORM DECLARATION IMMEDIATELY FOLLOWING THE APPLICABLE ENDORSEMENT.
COMMON POLICY PACKAGE APPLICABLE COVERAGE PARTS
IL1201 11-85 Policy Changes General Liability,
Commercial Inland
Marine, Commercial
Property
Modified
COMMERCIAL PROPERTY FORMS
CP0032 10-12 Business Income (Without Extra Expense) Coverage Form Added CP1201 11-85 Commercial Property Coverage Part Policy Changes Added
COMMERCIAL GENERAL LIABILITY FORMS
CG2026 12-19 Additional Insured - Designated Person Or Organization Added CG2404 12-19 Waiver Of Transfer Of Rights Of Recovery Against Others To Us (Waiver Of Subrogation) - 1
Added
GRANITE STATE INSURANCE COMPANY
1271 Ave of the Americas FL 37, New York, NY 10020
INSTALLMENT PLAN
POLICY NO: 02-LX-065044420-1 END: 003
RENEWAL OF 02-LX-065044420-0
ACCOUNT NUMBER:
NAMED INSURED AND MAILING ADDRESS AGENCY AND MAILING ADDRESS 93575
RAIN INDUSTRIES, INC
490 CHADBOURNE ROAD SUITE A130
FAIRFIELD, CA 94534
PREFERRED AVIATION UNDERWRITER
3321 N BERKLEY LAKE RD STE 200
DULUTH, GA 30096
POLICY PERIOD: FROM 04/29/2022 TO 04/29/2023 AT 12:01 AM STANDARD TIME AT YOUR MAILING ADDRESS SHOWN ABOVE.
10-17-22 Page 1 of 1
PREMIUM AMOUNT:$389.00
DUE DATE PREMIUM DUE
10/13/2022 $389
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
IL 12 01 11 85 Copyright, Insurance Services Office, Inc., 1983 Copyright, ISO Commercial Risk Services, Inc., 1983
POLICY CHANGES
Policy Change
Number 003
POLICY NUMBER
02-LX-065044420-1 END:
003
POLICY CHANGES
EFFECTIVE
10/13/2022
COMPANY
Granite State Insurance Company
NAMED INSURED
RAIN INDUSTRIES, INC
AUTHORIZED REPRESENTATIVE
COVERAGE PARTS AFFECTED
General Liability, Commercial Property
CHANGES
Adding Additional Insured Adding BI/EE
Authorized Representative Signature
POLICY NUMBER: 02-LX-065044420-1 END:
003
COMMERCIAL GENERAL LIABILITY
CG 20 26 12 19
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CG 20 26 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 1 – ADDITIONAL INSURED DESIGNATEDPERSON OR ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person(s) Or Organization(s):
Information required to complete this Schedule, if not shown above, will be shown in the Declarations. – A. Section II Who Is An Insured is amended to
include as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury", "property damage" or "personal and advertising injury"
caused, in whole or in part, by your acts or
omissions or the acts or omissions of those acting
on your behalf:
1. In the performance of your ongoing operations;
or
2. In connection with your premises owned by or
rented to you.
However:
1. The insurance afforded to such additional
insured only applies to the extent permitted by
law; and
2. If coverage provided to the additional insured is
required by a contract or agreement, the
insurance afforded to such additional insured
will not be broader than that which you are
required by the contract or agreement to
provide for such additional insured.
B.With respect to the insurance afforded to these
additional insureds, the following is added to
– Section III Limits Of Insurance:
If coverage provided to the additional insured is
required by a contract or agreement, the most we
will pay on behalf of the additional insured is the
amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable limits of
insurance;
whichever is less.
This endorsement shall not increase the
applicable limits of insurance.
POLICY NUMBER: 02-LX-065044420-1 END: 003 SD0001 0110
SUPPLEMENTAL FORM DECLARATION FOR CG2026 1219
– ADDITIONAL INSURED DESIGNATED
PERSON OR ORGANIZATION
SD0001 0110 Granite State Insurance Company Page 1 of 1
SCHEDULE
Name Of Additional Insured Person(s) Or Organization(s) City of Alameda
RiverRock Real Estate Group, Inc.
RiverRock Real Estate Group, Inc., as Agent for City of Almeda POLICY NUMBER: 02-LX-065044420-1 END: 003 COMMERCIAL GENERAL LIABILITY CG 24 04 12 19
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CG 24 04 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 1
WAIVER OF TRANSFER OF RIGHTS OF RECOVERYAGAINST OTHERS TO US (WAIVER OF SUBROGATION) This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
ELECTRONIC DATA LIABILITY COVERAGE PART
LIQUOR LIABILITY COVERAGE PART
POLLUTION LIABILITY COVERAGE PART DESIGNATED SITES
POLLUTION LIABILITY LIMITED COVERAGE PART DESIGNATED SITES
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
RAILROAD PROTECTIVE LIABILITY COVERAGE PART
UNDERGROUND STORAGE TANK POLICY DESIGNATED TANKS
SCHEDULE
Name Of Person(s) Or Organization(s):
RiverRock Real Estate Group, Inc.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
The following is added to Paragraph 8. Transfer Of
Rights Of Recovery Against Others To Us of
– Section IV Conditions:
We waive any right of recovery against the person(s)
or organization(s) shown in the Schedule above
because of payments we make under this Coverage
Part. Such waiver by us applies only to the extent that the insured has waived its right of recovery against
such person(s) or organization(s) prior to loss. This
endorsement applies only to the person(s) or
organization(s) shown in the Schedule above.
COMMERCIAL PROPERTY
CP 00 32 10 12
CP 00 32 10 12 © Insurance Services Office, Inc., 2011 Page 1 of 9
BUSINESS INCOME (WITHOUT EXTRA EXPENSE) COVERAGE FORM
Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered.
Throughout this policy, the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the company providing this insurance.
Other words and phrases that appear in quotation marks have special meaning. Refer to Section F. Definitions.
A. Coverage
1. Business Income
Business Income means the:
a. Net Income (Net Profit or Loss before
income taxes) that would have been earned
or incurred; and
b. Continuing normal operating expenses
incurred, including payroll.
For manufacturing risks, Net Income includes
the net sales value of production.
Coverage is provided as described and limited
below for one or more of the following options
for which a Limit Of Insurance is shown in the
Declarations:
(1) Business Income Including "Rental
Value".
(2) Business Income Other Than "Rental
Value".
(3) "Rental Value".
If option (1) above is selected, the term
Business Income will include "Rental Value". If
option (3) above is selected, the term Business
Income will mean "Rental Value" only.
If Limits of Insurance are shown under more
than one of the above options, the provisions
of this Coverage Part apply separately to each.
We will pay for the actual loss of Business
Income you sustain due to the necessary
"suspension" of your "operations" during the
"period of restoration". The "suspension" must
be caused by direct physical loss of or damage
to property at premises which are described in
the Declarations and for which a Business
Income Limit Of Insurance is shown in the
Declarations. The loss or damage must be
caused by or result from a Covered Cause of
Loss. With respect to loss of or damage to
personal property in the open or personal
property in a vehicle, the described premises
include the area within 100 feet of such
premises.
With respect to the requirements set forth in
the preceding paragraph, if you occupy only
part of a building, your premises means:
(a) The portion of the building which you
rent, lease or occupy;
(b) The area within 100 feet of the
building or within 100 feet of the
premises described in the
Declarations, whichever distance is
greater (with respect to loss of or
damage to personal property in the
open or personal property in a
vehicle); and
(c) Any area within the building or at the
described premises, if that area
services, or is used to gain access
to, the portion of the building which
you rent, lease or occupy.
2. Covered Causes Of Loss, Exclusions And
Limitations
See applicable Causes Of Loss form as shown
in the Declarations.
3. Additional Limitation Interruption Of
Computer Operations
a. Coverage for Business Income does not
apply when a "suspension" of "operations"
is caused by destruction or corruption of
electronic data, or any loss or damage to
electronic data, except as provided under
the Additional Coverage, Interruption Of
Computer Operations.
b. Electronic data means information, facts or
computer programs stored as or on,
created or used on, or transmitted to or
from computer software (including systems
and applications software), on hard or
floppy disks, CD-ROMs, tapes, drives, cells,
data processing devices or any other
repositories of computer software which are
used with electronically controlled
equipment. The term computer programs,
referred to in the foregoing description of
electronic data, means a set of related
electronic instructions which direct the
operations and functions of a computer or
device connected to it, which enable the
computer or device to receive, process,
store, retrieve or send data.
c. This Additional Limitation does not apply
when loss or damage to electronic data
involves only electronic data which is
integrated in and operates or controls a
building's elevator, lighting, heating,
ventilation, air conditioning or security
system.
4. Additional Coverages
a. Expenses To Reduce Loss
In the event of a covered loss of Business
Income, we will pay necessary expenses
you incur, except the cost of extinguishing a
fire, to avoid further loss of Business
Income. The total of our payment for
Business Income loss and Expenses To
Reduce Loss will not be more than the
Business Income loss that would have been
payable under this Coverage Form (after
application of any Coinsurance penalty) if
the Expenses To Reduce Loss had not
been incurred. This coverage does not
increase the Limit of Insurance.
The Coinsurance condition does not apply
specifically to such Expenses To Reduce
Loss, but it is used as described above to
determine the total amount payable.
b. Civil Authority
In this Additional Coverage, Civil Authority,
the described premises are premises to
which this Coverage Form applies, as
shown in the Declarations.
When a Covered Cause of Loss causes
damage to property other than property at
the described premises, we will pay for the
actual loss of Business Income you sustain
caused by action of civil authority that
prohibits access to the described premises,
provided that both of the following apply:
(1) Access to the area immediately
surrounding the damaged property is
prohibited by civil authority as a result of
the damage, and the described
premises are within that area but are not
more than one mile from the damaged
property; and
(2) The action of civil authority is taken in
response to dangerous physical
conditions resulting from the damage or
continuation of the Covered Cause of
Loss that caused the damage, or the
action is taken to enable a civil authority
to have unimpeded access to the
damaged property.
CP 00 32 10 12 © Insurance Services Office, Inc., 2011 Page 3 of 9
Civil Authority Coverage will begin 72 hours
after the time of the first action of civil
authority that prohibits access to the
described premises and will apply for a
period of up to four consecutive weeks from
the date on which such coverage began.
c. Alterations And New Buildings
We will pay for the actual loss of Business
Income you sustain due to direct physical
loss or damage at the described premises
caused by or resulting from any Covered
Cause of Loss to:
(1) New buildings or structures, whether
complete or under construction;
(2) Alterations or additions to existing
buildings or structures; and
(3) Machinery, equipment, supplies or
building materials located on or within
100 feet of the described premises and:
(a) Used in the construction, alterations
or additions; or
(b) Incidental to the occupancy of new
buildings.
If such direct physical loss or damage
delays the start of "operations", the "period
of restoration" will begin on the date
"operations" would have begun if the direct
physical loss or damage had not occurred.
d. Extended Business Income
(1) Business Income Other Than "Rental
Value"
If the necessary "suspension" of your
"operations" produces a Business
Income loss payable under this policy,
we will pay for the actual loss of
Business Income you incur during the
period that:
(a) Begins on the date property (except
"finished stock") is actually repaired,
rebuilt or replaced and "operations"
are resumed; and
(b) Ends on the earlier of:
(i) The date you could restore your
"operations", with reasonable
speed, to the level which would
generate the business income
amount that would have existed if
no direct physical loss or damage
had occurred; or
(ii) 60 consecutive days after the
date determined in (1)(a) above.
However, Extended Business Income
does not apply to loss of Business
Income incurred as a result of
unfavorable business conditions caused
by the impact of the Covered Cause of
Loss in the area where the described
premises are located.
Loss of Business Income must be
caused by direct physical loss or
damage at the described premises
caused by or resulting from any Covered
Cause of Loss.
(2) "Rental Value"
If the necessary "suspension" of your
"operations" produces a "Rental Value"
loss payable under this policy, we will
pay for the actual loss of "Rental Value"
you incur during the period that:
(a) Begins on the date property is
actually repaired, rebuilt or replaced
and tenantability is restored; and
(b) Ends on the earlier of:
(i) The date you could restore tenant
occupancy, with reasonable
speed, to the level which would
generate the "Rental Value" that
would have existed if no direct
physical loss or damage had
occurred; or
(ii) 60 consecutive days after the
date determined in (2)(a) above.
However, Extended Business Income
does not apply to loss of "Rental Value"
incurred as a result of unfavorable
business conditions caused by the
impact of the Covered Cause of Loss in
the area where the described premises
are located.
Loss of "Rental Value" must be caused
by direct physical loss or damage at the
described premises caused by or
resulting from any Covered Cause of
Loss.
e. Interruption Of Computer Operations
(1) Under this Additional Coverage,
electronic data has the meaning
described under Additional Limitation
Interruption Of Computer Operations.
(2) Subject to all provisions of this
Additional Coverage, you may extend
the insurance that applies to Business
Income to apply to a "suspension" of
"operations" caused by an interruption in
computer operations due to destruction
or corruption of electronic data due to a
Covered Cause of Loss. However, we
will not provide coverage under this
Additional Coverage when the
Additional Limitation Interruption Of
Computer Operations does not apply
based on Paragraph A.3.c. therein.
(3) With respect to the coverage provided
under this Additional Coverage, the
Covered Causes of Loss are subject to
the following:
(a) If the Causes Of Loss Special
Form applies, coverage under this
Additional Coverage, Interruption Of
Computer Operations, is limited to
the "specified causes of loss" as
defined in that form and Collapse as
set forth in that form.
(b) If the Causes Of Loss Broad Form
applies, coverage under this
Additional Coverage, Interruption Of
Computer Operations, includes
Collapse as set forth in that form.
(c) If the Causes Of Loss form is
endorsed to add a Covered Cause of
Loss, the additional Covered Cause
of Loss does not apply to the
coverage provided under this
Additional Coverage, Interruption Of
Computer Operations.
(d) The Covered Causes of Loss include
a virus, harmful code or similar
instruction introduced into or enacted
on a computer system (including
electronic data) or a network to
which it is connected, designed to
damage or destroy any part of the
system or disrupt its normal
operation. But there is no coverage
for an interruption related to
manipulation of a computer system
(including electronic data) by any
employee, including a temporary or
leased employee, or by an entity
retained by you or for you to inspect,
design, install, maintain, repair or
replace that system.
(4) The most we will pay under this
Additional Coverage, Interruption Of
Computer Operations, is $2,500 (unless
a higher limit is shown in the
Declarations) for all loss sustained in
any one policy year, regardless of the
number of interruptions or the number of
premises, locations or computer
systems involved. If loss payment
relating to the first interruption does not
exhaust this amount, then the balance is
available for loss sustained as a result
of subsequent interruptions in that policy
year. A balance remaining at the end of
a policy year does not increase the
amount of insurance in the next policy
year. With respect to any interruption
which begins in one policy year and
continues or results in additional loss in
a subsequent policy year(s), all loss is
deemed to be sustained in the policy
year in which the interruption began.
(5) This Additional Coverage, Interruption
Of Computer Operations, does not apply
to loss sustained after the end of the
"period of restoration", even if the
amount of insurance stated in (4) above
has not been exhausted.
5. Coverage Extension
If a Coinsurance percentage of 50% or more is
shown in the Declarations, you may extend the
insurance provided by this Coverage Part as
follows:
NEWLY ACQUIRED LOCATIONS
a. You may extend your Business Income
Coverage to apply to property at any
location you acquire other than fairs or
exhibitions.
b. The most we will pay for loss under this
Extension is $100,000 at each location,
unless a higher limit is shown in the
Declarations.
c. Insurance under this Extension for each
newly acquired location will end when any
of the following first occurs:
(1) This policy expires;
(2) 30 days expire after you acquire or
begin to construct the property; or
(3) You report values to us.
We will charge you additional premium for
values reported from the date you acquire
the property.
The Additional Condition, Coinsurance,
does not apply to this Extension.
CP 00 32 10 12 © Insurance Services Office, Inc., 2011 Page 5 of 9
B. Limits Of Insurance
The most we will pay for loss in any one
occurrence is the applicable Limit Of Insurance
shown in the Declarations.
Payments under the following Additional
Coverages will not increase the applicable Limit of
Insurance:
1. Alterations And New Buildings;
2. Civil Authority;
3. Extended Business Income; or
4. Expenses To Reduce Loss.
The amounts of insurance stated in the
Interruption Of Computer Operations Additional
Coverage and the Newly Acquired Locations
Coverage Extension apply in accordance with the
terms of those coverages and are separate from
the Limit(s) Of Insurance shown in the
Declarations for any other coverage.
C. Loss Conditions
The following conditions apply in addition to the
Common Policy Conditions and the Commercial
Property Conditions:
1. Appraisal
If we and you disagree on the amount of Net
Income and operating expense or the amount
of loss, either may make written demand for an
appraisal of the loss. In this event, each party
will select a competent and impartial appraiser.
The two appraisers will select an umpire. If
they cannot agree, either may request that
selection be made by a judge of a court having
jurisdiction. The appraisers will state separately
the amount of Net Income and operating
expense or amount of loss. If they fail to agree,
they will submit their differences to the umpire.
A decision agreed to by any two will be
binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal
and umpire equally.
If there is an appraisal, we will still retain our
right to deny the claim.
2. Duties In The Event Of Loss
a. You must see that the following are done in
the event of loss:
(1) Notify the police if a law may have been
broken.
(2) Give us prompt notice of the direct
physical loss or damage. Include a
description of the property involved.
(3) As soon as possible, give us a
description of how, when and where the
direct physical loss or damage occurred.
(4) Take all reasonable steps to protect the
Covered Property from further damage,
and keep a record of your expenses
necessary to protect the Covered
Property, for consideration in the
settlement of the claim. This will not
increase the Limit of Insurance.
However, we will not pay for any
subsequent loss or damage resulting
from a cause of loss that is not a
Covered Cause of Loss. Also, if
feasible, set the damaged property
aside and in the best possible order for
examination.
(5) As often as may be reasonably required,
permit us to inspect the property proving
the loss or damage and examine your
books and records.
Also permit us to take samples of
damaged and undamaged property for
inspection, testing and analysis, and
permit us to make copies from your
books and records.
(6) Send us a signed, sworn proof of loss
containing the information we request to
investigate the claim. You must do this
within 60 days after our request. We will
supply you with the necessary forms.
(7) Cooperate with us in the investigation or
settlement of the claim.
(8) If you intend to continue your business,
you must resume all or part of your
"operations" as quickly as possible.
b. We may examine any insured under oath,
while not in the presence of any other
insured and at such times as may be
reasonably required, about any matter
relating to this insurance or the claim,
including an insured's books and records. In
the event of an examination, an insured's
answers must be signed.
3. Loss Determination
a. The amount of Business Income loss will be
determined based on:
(1) The Net Income of the business before
the direct physical loss or damage
occurred;
(2) The likely Net Income of the business if
no physical loss or damage had
occurred, but not including any Net
Income that would likely have been
earned as a result of an increase in the
volume of business due to favorable
business conditions caused by the
impact of the Covered Cause of Loss on
customers or on other businesses;
(3) The operating expenses, including
payroll expenses, necessary to resume
"operations" with the same quality of
service that existed just before the direct
physical loss or damage; and
(4) Other relevant sources of information,
including:
(a) Your financial records and
accounting procedures;
(b) Bills, invoices and other vouchers;
and
(c) Deeds, liens or contracts.
b. Resumption Of Operations
We will reduce the amount of your Business
Income loss to the extent you can resume
your "operations", in whole or in part, by
using damaged or undamaged property
(including merchandise or stock) at the
described premises or elsewhere.
c. If you do not resume "operations", or do not
resume "operations" as quickly as possible,
we will pay based on the length of time it
would have taken to resume "operations" as
quickly as possible.
4. Loss Payment
We will pay for covered loss within 30 days
after we receive the sworn proof of loss, if you
have complied with all of the terms of this
Coverage Part, and:
a. We have reached agreement with you on
the amount of loss; or
b. An appraisal award has been made.
D. Additional Condition
COINSURANCE
If a Coinsurance percentage is shown in the
Declarations, the following condition applies in
addition to the Common Policy Conditions and the
Commercial Property Conditions:
We will not pay the full amount of any loss if the
Limit of Insurance for Business Income is less
than:
1. The Coinsurance percentage shown for
Business Income in the Declarations; times
2. The sum of:
a. The Net Income (Net Profit or Loss before
income taxes); and
b. Operating expenses, including payroll
expenses;
that would have been earned or incurred (had
no loss occurred) by your "operations" at the
described premises for the 12 months following
the inception, or last previous anniversary date,
of this policy (whichever is later).
Instead, we will determine the most we will pay
using the following steps:
Step (1): Multiply the Net Income and operating
expense for the 12 months following the
inception, or last previous anniversary
date, of this policy by the Coinsurance
percentage;
Step (2): Divide the Limit of Insurance for the
described premises by the figure
determined in Step (1); and
Step (3): Multiply the total amount of loss by the
figure determined in Step (2).
We will pay the amount determined in Step (3) or
the Limit of Insurance, whichever is less. For the
remainder, you will either have to rely on other
insurance or absorb the loss yourself.
In determining operating expenses for the purpose
of applying the Coinsurance condition, the
following expenses, if applicable, shall be
deducted from the total of all operating expenses:
(1) Prepaid freight outgoing;
(2) Returns and allowances;
(3) Discounts;
(4) Bad debts;
(5) Collection expenses;
(6) Cost of raw stock and factory supplies
consumed (including transportation
charges);
(7) Cost of merchandise sold (including
transportation charges);
(8) Cost of other supplies consumed
(including transportation charges);
(9) Cost of services purchased from
outsiders (not employees) to resell, that
do not continue under contract;
(10) Power, heat and refrigeration expenses
that do not continue under contract (if
Form CP 15 11 is attached);
(11) All payroll expenses or the amount of
payroll expense excluded (if Form CP
15 10 is attached); and
CP 00 32 10 12 © Insurance Services Office, Inc., 2011 Page 7 of 9
(12) Special deductions for mining properties
(royalties unless specifically included in
coverage; actual depletion commonly
known as unit or cost depletion not
percentage depletion; welfare and
retirement fund charges based on
tonnage; hired trucks).
Example 1 (Underinsurance)
When: The Net Income and operating
expenses for the 12 months
following the inception, or last
previous anniversary date, of
this policy at the described
premises would have been: $ 400,000
The Coinsurance percentage is: 50%
The Limit of Insurance is: $ 150,000
The amount of loss is: $ 80,000
Step (1): $400,000 x 50% = $200,000
(the minimum amount of insurance to
meet your Coinsurance requirements)
Step (2): $150,000 $200,000 = .75
Step (3): $80,000 x .75 = $60,000
We will pay no more than $60,000. The remaining
$20,000 is not covered.
Example 2 (Adequate Insurance)
When: The Net Income and operating
expenses for the 12 months
following the inception, or last
previous anniversary date, of
this policy at the described
premises would have been: $ 400,000
The Coinsurance percentage is: 50%
The Limit of Insurance is: $ 200,000
The amount of loss is: $ 80,000
The minimum amount of insurance to meet your
Coinsurance requirement is $200,000 ($400,000 x
50%). Therefore, the Limit of Insurance in this
example is adequate and no penalty applies. We will
pay no more than $80,000 (amount of loss).
E. Optional Coverages
If shown as applicable in the Declarations, the
following Optional Coverages apply separately to
each item.
1. Maximum Period Of Indemnity
a. The Additional Condition, Coinsurance,
does not apply to this Coverage Form at the
described premises to which this Optional
Coverage applies.
b. The most we will pay for loss of Business
Income is the lesser of:
(1) The amount of loss sustained during the
120 days immediately following the
beginning of the "period of restoration";
or
(2) The Limit Of Insurance shown in the
Declarations.
2. Monthly Limit Of Indemnity
a. The Additional Condition, Coinsurance,
does not apply to this Coverage Form at the
described premises to which this Optional
Coverage applies.
b. The most we will pay for loss of Business
Income in each period of 30 consecutive
days after the beginning of the "period of
restoration" is:
(1) The Limit of Insurance, multiplied by
(2) The fraction shown in the Declarations
for this Optional Coverage.
Example
When: The Limit of Insurance is: $ 120,000
The fraction shown in the
Declarations for this Optional
Coverage is: 1/4
The most we will pay for loss in
each period of 30 consecutive
days is: $ 30,000
($120,000 x 1/4 = $30,000)
If, in this example, the actual
amount of loss is:
Days 1 30: $ 40,000
Days 31 60: $ 20,000
Days 61 90: $ 30,000
$ 90,000
We will pay:
Days 1 30: $ 30,000
Days 31 60: $ 20,000
Days 61 90: $ 30,000
$ 80,000
The remaining $10,000 is not covered.
3. Business Income Agreed Value
a. To activate this Optional Coverage:
(1) A Business Income Report/Work Sheet
must be submitted to us and must show
financial data for your "operations":
(a) During the 12 months prior to the
date of the Work Sheet; and
(b) Estimated for the 12 months
immediately following the inception
of this Optional Coverage.
(2) The Declarations must indicate that the
Business Income Agreed Value Optional
Coverage applies, and an Agreed Value
must be shown in the Declarations. The
Agreed Value should be at least equal
to:
(a) The Coinsurance percentage shown
in the Declarations; multiplied by
(b) The amount of Net Income and
operating expenses for the following
12 months you report on the Work
Sheet.
b. The Additional Condition, Coinsurance, is
suspended until:
(1) 12 months after the effective date of this
Optional Coverage; or
(2) The expiration date of this policy;
whichever occurs first.
c. We will reinstate the Additional Condition,
Coinsurance, automatically if you do not
submit a new Work Sheet and Agreed
Value:
(1) Within 12 months of the effective date of
this Optional Coverage; or
(2) When you request a change in your
Business Income Limit of Insurance.
d. If the Business Income Limit of Insurance is
less than the Agreed Value, we will not pay
more of any loss than the amount of loss
multiplied by:
(1) The Business Income Limit of
Insurance; divided by
(2) The Agreed Value.
Example
When: The Limit of Insurance is: $ 100,000
The Agreed Value is: $ 200,000
The amount of loss is: $ 80,000
Step (1): $100,000 $200,000 = .50
Step (2): .50 x $80,000 = $40,000
We will pay $40,000. The remaining $40,000 is not
covered.
4. Extended Period Of Indemnity
Under Paragraph A.4.d., Extended Business
Income, the number 60 in Subparagraphs
(1)(b) and (2)(b) is replaced by the number
shown in the Declarations for this Optional
Coverage.
F. Definitions
1. "Finished stock" means stock you have
manufactured.
"Finished stock" also includes whiskey and
alcoholic products being aged, unless there is
a Coinsurance percentage shown for Business
Income in the Declarations.
"Finished stock" does not include stock you
have manufactured that is held for sale on the
premises of any retail outlet insured under this
Coverage Part.
2. "Operations" means:
a. Your business activities occurring at the
described premises; and
b. The tenantability of the described premises,
if coverage for Business Income Including
"Rental Value" or "Rental Value" applies.
3. "Period of restoration" means the period of time
that:
a. Begins 72 hours after the time of direct
physical loss or damage caused by or
resulting from any Covered Cause of Loss
at the described premises; and
b. Ends on the earlier of:
(1) The date when the property at the
described premises should be repaired,
rebuilt or replaced with reasonable
speed and similar quality; or
(2) The date when business is resumed at a
new permanent location.
"Period of restoration" does not include any
increased period required due to the
enforcement of or compliance with any
ordinance or law that:
(1) Regulates the construction, use or
repair, or requires the tearing down, of
any property; or
(2) Requires any insured or others to test
for, monitor, clean up, remove, contain,
treat, detoxify or neutralize, or in any
way respond to, or assess the effects of
"pollutants".
The expiration date of this policy will not cut
short the "period of restoration".
4. "Pollutants" means any solid, liquid, gaseous or
thermal irritant or contaminant, including
smoke, vapor, soot, fumes, acids, alkalis,
chemicals and waste. Waste includes materials
to be recycled, reconditioned or reclaimed.
CP 00 32 10 12 © Insurance Services Office, Inc., 2011 Page 9 of 9
5. "Rental Value" means Business Income that
consists of:
a. Net Income (Net Profit or Loss before
income taxes) that would have been earned
or incurred as rental income from tenant
occupancy of the premises described in the
Declarations as furnished and equipped by
you, including fair rental value of any
portion of the described premises which is
occupied by you; and
b. Continuing normal operating expenses
incurred in connection with that premises,
including:
(1) Payroll; and
(2) The amount of charges which is the
legal obligation of the tenant(s) but
would otherwise be your obligations.
6. "Suspension" means:
a. The slowdown or cessation of your
business activities; or
b. That a part or all of the described premises
is rendered untenantable, if coverage for
Business Income Including "Rental Value"
or "Rental Value" applies.
COMMERCIAL PROPERTY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CP 12 01 11 85 Copyright, ISO Commercial Risk Services, Inc., 1983 Page 1 of 1
COMMERCIAL PROPERTY COVERAGE PARTPOLICY CHANGES
Policy Change
Number 003
THIS ENDORSEMENT FORMS A PART OF THE POLICY NUMBERED BELOW:
POLICY NUMBER
02-LX-065044420-1
END: 003
POLICY CHANGES
EFFECTIVE
10/13/2022
COMPANY
Granite State Insurance Company
NAMED INSURED
RAIN INDUSTRIES, INC
AUTHORIZED
REPRESENTATIVE
CHANGES
Adding Additional Insured Adding BI/EE
PREMIUM ADJUSTMENT
PREMIUM DUE AT
POLICY CHANGE EFFECTIVE DATE
PREVIOUS
INSTALLMENT NEW INSTALLMENT
ADDITIONAL RETURN PREMIUM PREMIUM
$ 251 $ $ $
REMOVAL
PERMIT
If Covered Property is removed to a new location that is described on this Policy Change, you may extend this insurance to include that Covered Property at each location during the removal. Coverage at each location will apply in the proportion that the value at each loca- tion bears to the value of all Covered Property being removed. This permit applies up to 10 days after the effective date of this Policy Change; after that, this insurance does not apply at the previous location.
Authorized Representative Signature