1 FIFTH AMENDMENT TO LICENSE AGREEMENT
LICENSE AREA: 641 West Red Line Ave, Alameda, CA
LICENSOR: CITY OF ALAMEDA, a charter city and municipal corporation
LICENSEE: Amber Kinetics Inc., a California corporation LICENSE DATE: April 1, 2014
This Fifth Amendment to the License Agreement ("Fifth Amendment"), is dated as of _____________, 2023 for reference purposes only, and is entered into by and between the CITY OF ALAMEDA, a charter city and municipal corporation ("Licensor"), and AMBER KINETICS INC., a California corporation ("Licensee").
NOW, THEREFORE, in consideration of the foregoing, which are incorporated herein by reference, and of their mutual covenants contained herein, the parties hereby agree as follows:
1. Background.
A. Licensor and Licensee entered into that certain License Agreement dated April 1, 2014, and amended by a First Amendment to License Agreement dated January __, 2016 (undated), and that Second Amendment to License Agreement dated April 17, 2018, and that Third Amendment to License dated July 7, 2020, and that Fourth Amendment to License Agreement dated November 2, 2022 (collectively, the “License”), for a certain premises described therein and referred to as 641 West Red Line Ave, Alameda, CA, consisting of approximately 10,0000 square feet of land (the "License Area").
B. The Expiration Date of the License is May 3, 2023. Licensor and Licensee have agreed to extend the License Term for a period of twelve (12) months on the same terms and conditions as set forth in the License, except as otherwise set forth herein.
C. Capitalized terms used in this Fifth Amendment without definition shall have the same meaning given to such terms in the License. This Fifth Amendment shall be effective upon the last date set forth below the parties’ signatures.
2. Term. The term of the License is hereby extended for an additional twelve (12) months (“Fifth Extension Term”) retroactively commencing on May 4, 2023 (“Fifth Extension Commencement Date”) and terminating on May 3, 2024.
3. Base Rent. Effective as the Fourth Extension Commencement Date, the monthly installment of Base Rent for the License Area through the end of the Fourth Extension Term Shall be $4,389.00 per month.
2 4. Security Deposit. An existing security deposit equal to $4,180.00 is currently being held by Licensor, and Licensee agrees to deposit an additional $209.00 within ten (10) business days of full execution and delivery of this Fifth Amendment to maintain a Security Deposit equivalent to last month’s license fee.
5. Termination Rights. During the extended term, Licensor and Licensee shall have a mutual Option to Terminate this License with ninety (90 ) day prior written notification to the other party.
6. Delivery of Possession. Licensee hereby agrees that the License Area shall continue to be Licensed in its "AS-IS" condition, and Licensor shall have no obligation to make any repairs or modifications to the License Area. Licensee acknowledges and agrees that Licensor has made no representations or warranties regarding the License Area, including, without limitation, its suitability for Licensee’s proposed use.
7. Signage. Licensee shall not place any sign upon the License Area without Licensor’s prior written consent, which consent shall not be unreasonably withheld.
8. City’s Authority. Licensee further acknowledges Licensor is entering into this Fifth Amendment in its proprietary capacity and not in its regulatory or governmental capacity.
Nothing in this Fifth Amendment shall be construed as restraining, impairing or restricting the City of Alameda in its regulatory capacity, or granting any rights upon the Licensee with respect to the use, occupancy or operation of the License Area in a manner inconsistent with any Laws or applicable requirements.
9. Brokers. Licensor is represented by Cushman and Wakefield (Ted Anderson) (“Licensor’s Broker”), in connection with the transactions contemplated in this Fifth Amendment. Licensor and Licensee hereby acknowledge that leasing commissions shall be paid per separate agreements with Licensor’s Broker and Licensee’s Broker. Licensee and Licensor each represent and warrant to each other that no other broker has represented either of them or is otherwise entitled to a commission or fee in connection with the transactions contemplated in this Fifth Amendment. Each party hereby indemnifies, defends and holds the other party harmless from all loss, cost and expense (including reasonable attorneys' fees) arising out of a breach of its representation set forth in this Section 8. The provisions of this Section 8 shall survive the termination of the License.
10. Ratification; Miscellaneous. Except as modified by this Fifth Amendment, in all other respects the License is hereby ratified and affirmed and remains in full force and effect.
This Fifth Amendment may be executed in one or more counterparts.
11. Electronic Signature. This Fifth Amendment may be signed by electronic signature and any such electronic signature shall have the same force and effect as an original signature. Without limitation, “electronic signature” shall include faxed versions of an original signature or electronically scanned and transmitted versions (e.g., via pdf) of an original signature.
3 IN WITNESS WHEREOF, the undersigned have executed this Fifth Amendment as of the day and year last set forth below.
LICENSOR:
CITY OF ALAMEDA,
a charter city and municipal corporation
By: _____________________________
Jennifer Ott
City Manager
Date: _____________________________
LICENSEE:
AMBER KINETICS INC.,
a California Corporation
By: ____________________________
Name: Frederick K. Koenen
Title: Secretary
Date: May 4, 2023
Approved as to Form
By: _____________________________
Len Aslanian
Assistant City Attorney
Recommended for Approval
By: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
Date: _____________________________
Andrew Thomas
Interim Base Reuse and Economic
Development Director
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:
CONTACT
(A/C, No):
FAX
E-MAIL
ADDRESS:
PRODUCER
(A/C, No, Ext):
PHONE
INSURED
REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES
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 on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE 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. $ $
$
$PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOSAUTOS ONLY
NON-OWNED
SCHEDULEDOWNED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTH-
STATUTE
PER
LIMITS(MM/DD/YYYY)
POLICY EXP
(MM/DD/YYYY)
POLICY EFF
POLICY NUMBERTYPE OF INSURANCELTR
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB $EACH OCCURRENCE
$AGGREGATE
$
OCCUR
CLAIMS-MADE
DED RETENTION $
$PRODUCTS - COMP/OP AGG
$GENERAL AGGREGATE
$PERSONAL & ADV INJURY
$MED EXP (Any one person)
$EACH OCCURRENCE
DAMAGE TO RENTED
$PREMISES (Ea occurrence)
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PRO-
JECT LOC
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
6/6/2023
Arthur J. Gallagher Risk Management Services, LLC
160 West Santa Clara Street
Suite 300
San Jose CA 95113
408-973-9500
408-257-2985
Atlantic Specialty Insurance Company
27154
AMBEKIN-01
Illinois Union Insurance Company
27960
Amber Kinetics Inc
32920 ALVARADO NILES RD STE 250
Union City CA 94587
929380613
A
X
1,000,000
X
1,000,000
10,000
1,000,000
2,000,000
X
Y
Y
711-01-68-90-0003
10/4/2022
10/4/2023
2,000,000
A
1,000,000
X
X
711-01-68-90-0003
10/4/2022
10/4/2023
B
Environmental
CPY G71747967 004
10/4/2022
10/4/2023
Environmental
$1,000,000
City of Alameda and Its Members, Directors, Agents, Volunteers and Officials, its City Council, boards and commissions, officers and employees are listed as Additional Insured on General Liability Policy by written contract or agreement, Waiver of Subrogation applies on General Liability Policy when required by written contract or agreement. 30 Day Notice of Cancelation applies.
City of Alameda
C/O RiverRock Real Estate Group
950 West Mall Square STE 239
Alameda CA 94501
THIS CERTIFICATE SUPERSEDES PREVIOUSLY ISSUED CERTIFICATE
c. The obligation to defend, or the cost of the
defense of, that indemnitee, has also been
assumed by the insured in the same "insured
contract";
d. The allegations in the "suit" and the information
we know about the "occurrence" are such that
no conflict appears to exist between the
interests of the insured and the interests of the
indemnitee;
e. The indemnitee and the insured ask us to
conduct and control the defense of that
indemnitee against such "suit" and agree that
we can assign the same counsel to defend the
insured and the indemnitee; and
f. The indemnitee:
(1) Agrees in writing to:
(a) Cooperate with us in the investigation,
settlement or defense of the "suit";
(b) Immediately send us copies of any
demands, notices, summonses or legal
papers received in connection with the
"suit";
(c) Notify any other insurer whose coverage
is available to the indemnitee; and
(d) Cooperate with us with respect to
coordinating other applicable insurance
available to the indemnitee; and
(2) Provides us with written authorization to:
(a) Obtain records and other information
related to the "suit"; and
(b) Conduct and control the defense of the
indemnitee in such "suit".
So long as the above conditions are met,
attorneys' fees incurred by us in the defense of
that indemnitee, necessary litigation expenses
incurred by us and necessary litigation expenses
incurred by the indemnitee at our request will be
paid as Supplementary Payments.
Notwithstanding the provisions of Paragraph
2.b.(2) of Section I
Coverage A Bodily Injury
And Property Damage Liability, such payments will
not be deemed to be damages for "bodily injury"
and "property damage" and will not reduce the
limits of insurance.
Our obligation to defend an insured's indemnitee
and to pay for attorneys' fees and necessary
litigation expenses as Supplementary Payments
ends when we have used up the applicable limit of
insurance in the payment of judgments or
settlements or the conditions set forth above, or
the terms of the agreement described in
Paragraph f. above, are no longer met.
SECTION II
WHO IS AN INSURED
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are
insureds, but only with respect to the conduct
of a business of which you are the sole owner.
b. A partnership or joint venture, you are an
insured. Your members, your partners, and
their spouses are also insureds, but only with
respect to the conduct of your business.
c. A limited liability company, you are an insured.
Your members are also insureds, but only with
respect to the conduct of your business. Your
managers are insureds, but only with respect
to their duties as your managers.
d. An organization other than a partnership, joint
venture or limited liability company, you are an
insured. Your "executive officers" and directors
are insureds, but only with respect to their
duties as your officers or directors. Your
stockholders are also insureds, but only with
respect to their liability as stockholders.
e. A trust, you are an insured. Your trustees are
also insureds, but only with respect to their
duties as trustees.
2. Each of the following is also an insured:
a. Your "volunteer workers" only while performing
duties related to the conduct of your business,
or your "employees", other than either your
"executive officers" (if you are an organization
other than a partnership, joint venture or limited
liability company) or your managers (if you are
a limited liability company), but only for acts
within the scope of their employment by you or
while performing duties related to the conduct
of your business. However, none of these
"employees" or "volunteer workers" are
insureds for:
(1) "Bodily injury" or "personal and advertising
injury":
(a) To you, to your partners or members (if
you are a partnership or joint venture),
to your members (if you are a limited
liability company), to a co-"employee"
while in the course of his or her
employment or performing duties related
to the conduct of your business, or to
your other "volunteer workers" while
performing duties related to the conduct
of your business;
(b) To the spouse, child, parent, brother or
sister of that co-"employee" or
"volunteer worker" as a consequence of
Paragraph (1)(a) above;
(c) For which there is any obligation to
share damages with or repay someone
else who must pay damages because of
the injury described in Paragraph (1)(a)
or (b) above; or
(d) Arising out of his or her providing or
failing to provide professional health
care services.
(2) "Property damage" to property:
(a) Owned, occupied or used by;
CG 00 01 04 13 © Insurance Services Office, Inc., 2012 Page 9 of 14 (b) Rented to, in the care, custody or
control of, or over which physical control
is being exercised for any purpose by;
you, any of your "employees", "volunteer
workers", any partner or member (if you are
a partnership or joint venture), or any
member (if you are a limited liability
company).
b. Any person (other than your "employee" or
"volunteer worker"), or any organization while
acting as your real estate manager.
c. Any person or organization having proper
temporary custody of your property if you die,
but only:
(1) With respect to liability arising out of the
maintenance or use of that property; and
(2) Until your legal representative has been
appointed.
d. Your legal representative if you die, but only
with respect to duties as such. That
representative will have all your rights and
duties under this Coverage Part.
3. Any organization you newly acquire or form, other
than a partnership, joint venture or limited liability
company, and over which you maintain ownership
or majority interest, will qualify as a Named
Insured if there is no other similar insurance
available to that organization. However:
a. Coverage under this provision is afforded only
until the 90th day after you acquire or form the
organization or the end of the policy period,
whichever is earlier;
b. Coverage A does not apply to "bodily injury" or
"property damage" that occurred before you
acquired or formed the organization; and
c. Coverage B does not apply to "personal and
advertising injury" arising out of an offense
committed before you acquired or formed the
organization.
No person or organization is an insured with respect
to the conduct of any current or past partnership, joint venture or limited liability company that is not shown
as a Named Insured in the Declarations.
SECTION III
LIMITS OF INSURANCE
1. The Limits of Insurance shown in the Declarations
and the rules below fix the most we will pay
regardless of the number of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims or
bringing "suits".
2. The General Aggregate Limit is the most we will
pay for the sum of:
a. Medical expenses under Coverage C;
b. Damages under Coverage A, except damages
because of "bodily injury" or "property damage"
included in the "products-completed operations
hazard"; and
c. Damages under Coverage B.
3. The Products-Completed Operations Aggregate
Limit is the most we will pay under Coverage A for
damages because of "bodily injury" and "property
damage" included in the "products-completed
operations hazard".
4. Subject to Paragraph 2. above, the Personal And
Advertising Injury Limit is the most we will pay
under Coverage B for the sum of all damages
because of all "personal and advertising injury"
sustained by any one person or organization.
5. Subject to Paragraph 2. or 3. above, whichever
applies, the Each Occurrence Limit is the most we
will pay for the sum of:
a. Damages under Coverage A; and
b. Medical expenses under Coverage C
because of all "bodily injury" and "property
damage" arising out of any one "occurrence".
6. Subject to Paragraph 5. above, the Damage To
Premises Rented To You Limit is the most we will
pay under Coverage A for damages because of
"property damage" to any one premises, while
rented to you, or in the case of damage by fire,
while rented to you or temporarily occupied by you
with permission of the owner.
7. Subject to Paragraph 5. above, the Medical
Expense Limit is the most we will pay under
Coverage C for all medical expenses because of
"bodily injury" sustained by any one person.
The Limits of Insurance of this Coverage Part apply
separately to each consecutive annual period and to
any remaining period of less than 12 months, starting
with the beginning of the policy period shown in the
Declarations, unless the policy period is extended
after issuance for an additional period of less than 12 months. In that case, the additional period will be
deemed part of the last preceding period for purposes
of determining the Limits of Insurance.
SECTION IV
COMMERCIAL GENERAL LIABILITY
CONDITIONS
1. Bankruptcy
Bankruptcy or insolvency of the insured or of the
insured's estate will not relieve us of our
obligations under this Coverage Part.
2. Duties In The Event Of Occurrence, Offense,
Claim Or Suit
a. You must see to it that we are notified as soon
as practicable of an "occurrence" or an offense
which may result in a claim. To the extent
possible, notice should include:
(1) How, when and where the "occurrence" or
offense took place;
(2) The names and addresses of any injured
persons and witnesses; and