DocuSign Envelope ID: 706C7826-8F75-459C-8EF5-8570BC55D2EC LEASE AMENDMENT NO. 2
PREMISES 2701 Monarch Street, Alameda. CA consisting of approximately 63,972 rentable square feet, Bldg. 20
LANDLORD: CITY OF ALAMEDA, a charter city and municipal corporation
TENANT: Auctions by the Bay, Inc.
LEASE DATE: May 1, 2012 for reference purposes only
This AmendmentNo. 2 to the Lease (""Second Amendment"),is dated as of Mpr rl^> ' . 2022 for reference purposes only, and is entered into by and between the CITY OF ALAMEDA, a charter city and municipal corporation ("Landlord" or '"City"), and AUCTIONS BY THE BAY, INC., a California corporation ("Tenant").
NOW. THEREFORE, in consideration of the foregoing, which is incorporated herein by reference, and of their mutual covenants contained herein, the parties hereby agree asfollows:
1. Background.
A. Landlord and Tenant entered into that certain Lease Agreement dated May 1, 2012 for reference purposes only (the "Lease"), for certain premises described therein and referred to as 2701 MonarchStreet, Alameda. CA consisting of approximately 6 3.972 square feet. Building 20 ("Premises").
B. On October 6, 2020, the City Council approved that certain COVID-19 rent relief program for commercial tenants of City-owned property located on Spirits Alley and non profit organizations (the "Program").
C. Tenant has advised Landlord that it wishes to participate in the Program on the terms and condition described herein.
D. Capitalized terms used in this Second Amendment without definition shall have the same meaning given to such terms in the Lease. This Second Amendment shall be effective upon the last date set forth below the parties* signatures.
2. Rent Deferral. Section 3.1 of the Lease regarding Tenant"s payment of Base Rent shall be modified as described below:
"(a) Tenant's obligation to pay Base Rent, as described in Section 3.1 oftheLease, shall be deferred for a period of nine (9) months ("Deferred Base Rent") commencing retroactively on April 2020 and ending on December 2020. The period during which Tenant shall repay Deferred Base Rent shall commence on March 1, 2022 and end on February 28. 2025 ("Repayment Period"). During each twelve (12) month period of the Repayment Period ("Year 1" as to the first twelve (12) months. "Year 2" as to F
DocuSign Envelope ID: 706C7826-8F75-459C-8EF5-8570BC55D2EC the second twelve (12) months, and "Year 3" as to the third twelve (12) months), Tenant shall repay no less than three (3) months of Deferred Base Rent ("Minimum Repayment Obligation") either in a lump sum at the time Tenant makes its first Base Rent payment during Year 1, Year 2, or Year 3, as applicable, or in twelve (12) equal monthlypaymentson the date Tenantpays Landlordeach Base Rent sum during Year1, Year 2, or Year 3, as applicable. A schedule reflecting Tenant's Minimum Repayment Obligation is set out below.
(b) Duringthe RepaymentPeriod,if Tenantpaysall DeferredBaseRent: (i) prior to the lastday of Year 1,LandlordwillcreditTenantthree (3)monthsof BaseRentto be applied to each of the next following months of Base Rent until the credit is exhausted;(ii) prior to the last day ofYear 2, Landlordwill credit Tenant two (2) monthsof BaseRentto be appliedto eachof the nextfollowing monthsof BaseRent untilthecreditexhausted;and (iii)priorto thelastday of Year3, Landlordwill credit tenantone(1) monthof Base Rentto beappliedto eachof thenextfollowingmonths of Base Rent until the credit exhausted.
(c) If duringYear 1,Year 2, orYear 3 oftheRepaymentPeriodTenantfailsto pay the applicableBaseRentsum,plustheMinimumRepaymentObligationfor any ofthose years,thenfollowingawrittennoticefrom LandlordtoTenantand a three(3) day period for Tenant to cure such Base Rent default and/or Minimum Repayment Obligation default,Tenantshallbeinmaterialdefaultofthe Lease entitlingLandlordtoexerciseall rightsand remediesavailableto itunderthe Leaseand atlaw and inequity. (d) Ifatany timeduringthe periodcommencingon thedateofthisSecondAmendment (as set out above) and the last day ofthe RepaymentPeriod,Tenantis cited by a law enforcementauthority(e.g. the Countyof Alameda,the City's Police Departmentor codeenforcementunit)for any violationofa healthand safetyregulation,code,orother directiverelatedto COVID-19,the City may, uponthe writtenapprovalofboththe City Managerand City Attorney,in theirsoleand completediscretion,imposesome or all of the following remedies:
1. Tenantshallbeobligatedto repayto Landlord,withinten (10) days of the dateof writtennoticefrom City, all unpaid DeferredBase Rent.
2. Tenantshallreturnto the Landlord,withinten (10)daysof the date of writtennoticefrom City, all previouslyearned"RentCredit"(as describedin the chart below).
3. Tenantshallnotbe entitledto any furtherbenefitsestablishedby and described in this Second Amendment.
Tenantshall timelyand fully comply with the remediesimposedby the City underthissubsection.IfTenantfailstotimelyand fullycomplywiththe remediesset forth in the subsection,then Tenantshallbe inmaterialdefaultof theLeaseentitling Landlordtoexerciseall rightsand remediesavailabletoit under the Leaseand atlaw and in equity, includingwithout limitation,terminationof the Lease, as amended hereby, and taking all necessary legal actions to recover unpaid rent, including previouslyearned-but-forfeitedRent CreditsorDeferred BaseRent.
V
DocuSign Envelope ID: 706C7826-8F75-459C-8EF5-8570BC55D2EC
3. DEFERRED RENT REPAYMENT SCHEDULE
Months
Deferred
Total Base
Rent
Deferred
Maximum
Possible
Rent Credit
Repayment
Period
Year 1
Year 2
Year 3
Nine (9) (April 2020-December 2020)
$ 247.833.00
$ 82.611.00
Payment Due
Base Rent + $82.611.00 when first Base Rent payment of Year 1 is made or Base Rent + 12 equal, monthly payments of $6,884.25 at the time each Base Rent payment is made during Year 1 Base Rent + $82.611.00 when first Base Rent payment of Year 2 is made or Base Rent + 12 equal, monthly payments of $6.884.25 at the time each Base Rent payment is made during Year 2
Base Rent + $82.611.00 when first Base Rent payment of Year 3 is made or Base Rent + 12 equal, monthly payments of $6.884.25 at the time each Base Rent payment is made during Year 3
Delivery of Possession. Tenant agrees that the Premises shall continue to be leased in its "AS-IS" condition, and Landlord shall have no obligation to make any repairs or modifications to the Premises. Tenant acknowledges and agrees that Landlord has made no representationsor warrantiesregardingthe Premises,including,withoutlimitation,its suitability for Tenant's proposed use.
4. CASp. 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 theapplicableconstruction-relatedaccessibilitystandardsunderstate law. Although state law does not require a CASp inspection of the subjectpremises, 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 W
DocuSign Envelope ID: 706C7826-8F75-459C-8EF5-8570BC55D2EC time and mannerof the CASp inspection, the paymentof 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 Second Amendment 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-relatedaccessibility standards that is noted in the CASp report shall be Tenant's responsibility;and(v) Tenantmustprovidea copyof theCASpreportto Landlordon completion.
5. City's Authority. Tenant acknowledges Landlord is entering into this Second Amendment modifyingthe Lease in Landlord'sproprietarycapacityand not in itsregulatoryor governmental capacity. Nothing in this Second Amendmentshall be construedas restraining, impairingor restricting the City in itsregulatorycapacity,or grantingany rightsupon theTenant with respect to the use, occupancyor operationof the Premises in a manner inconsistentwith any Laws or applicable requirements.
6. Ratification;Miscellaneous.Exceptas modifiedbythisSecond Amendment,inall other respects the Lease is hereby ratified and affirmed and remains in full force and effect.
This Second Amendment may be executed in one or more counterparts.
DocuSign Envelope ID: 706C7826-8F75-459C-8EF5-8570BC55D2EC IN WITNESS WHEREOF,the undersignedhave executedthis Amendmentas of the day and year last set forth below.
LANDLORD:
CITY OF ALAMEDA.
a charter city and municipal corporation
By:
Date:
Approved as to Form
— DocuSigned by:
By: [UA, UmaXMA,
Cetr¥!Slatfftfi14F"
Deputy Assistant City Attorney II
Recommended for Approval
-DocuSigned by:
By: fcta. ktywilL
LHsflpMaxwefis
Community Development Director
TENANT:
Narn/: ky(zxW(cnaan_
Title:/President C t c
Date: fift . a io^^_