01337.0020/900871.1
First Amendment to MSRC Lease 1
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (“First Amendment”) dated as of June 30, 2023, is made by and between the SURPLUS PROPERTY AUTHORITY OF THE CITY OF RICHMOND, a public body corporate and politic (“Landlord”) an d MARINE SP ILL RESPONSE CORPORATION, a Tennessee not-for-profit non-membership corporation (“Tenant”). Landlord and Tenant are sometimes collectively referred to as the “Parties” and individually as a “Party.”
RECITALS
A. Landlord and Tenant entered into that certain Lease dated January 1, 1993 (“Original Lease”) for that certain real property as legally described on Exhibit A located at Point Potrero Marine Terminal, Finger Pier Number One with a common address 1314 Canal Boulevard in Richmond, California (“Premises”).
B. The Term of the Lease was previously extended and currently terminates at midnight on June 30, 2023.
C. The Parties desire to amend the Lease as set forth in this First Amendment to include extending the Lease term.
NOW, THEREFORE, for g ood and valuable considerat ion, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree to amend the Lease as follows:
1. EFFECTIVE DATE . This First Amendment shall be effective on the date this First Amendment is executed by Landlord after approval by Landlord’s Board (“Effective Date”).
2. RECITALS. The foregoing recitals are incorporated into this First Amendment and made a part hereof.
3. DEFINITIONS. All defined terms in this First Amendment shall have the same mean ing as in the Lease except as otherwise specifically defined in this First Amendment.
4. CONFIRMATION OF RENT. The Parties confirm that as of the Effective Date the Base Rent is Thirty-One Thousand Nine Hundred Five Dollars and Fifty-Four Cents ($31,905.54).
5. MODIFICATIONS/AMENDMENTS. As of the Effective Date, t he O riginal Lease is amended/modified as follows:
a. Section 3.1 Initial Term and Extensions is deleted in its entirety and the following is inserted in its place and stead:
“3.1 Initial Term and Ex tensions. The term of th is Lease shall be ten (10) Lease Years commencing at 12:01 on July 1, 2023 as may be extended as follows (“Term”).
Tenant shall have two (2) successive options to extend the Term each for an additional five
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2 (5) year period commencing on the date imme diately succeeding the expi ration date of the then existing Term , upon the terms and conditions hereof, including the rent specified for such Extended Term as provided in Section 4.1, provided that at the time of exercis e of the applicable option, an Event of De fault (as defined in Section 15.1) does not exist . An option must be exercised by Tenant giving written notice of exercise to Landlord delivered not less than nine (9) months nor more than twelve (12) months prior to ex piration of the ex isting Term. If th e first option to extend is no t ex ercised, the s econd option to extend shall automatically terminate and be of no further force or effect.”
b. Section 4. Rent is deleted in its entirety and the following is inserted in its place and stead:
“4.1 Amount of R ent. Commencing with the Term on July 1, 2023 and for the first Lease Year, Tenant shall pay to Landlord monthly rent (“Base Rent ”) equal to Thirty-Three Thousand Twenty -Two Dollars and Twenty -Three Cents ($33,022.23). For Lease Years 2 through 5 of the Term, Base Rent shall be increased annually by the CPI Increase (as defined below) but not more than three and a half percent (3.5%) for each such Lease Year. For Lease Years 6 through 10 of the Term, Base Rent shall increase by C PI Increase but no less than three and a half percent (3.5%) and no more than four percent (4%) for each such Lease Year.
For each Lease Year during an Extended Term, Base Rent shall increase by actual CPI Increase.
The Base Rent for each Lease Year shall be increased (“CPI Increase”) to be the sum of (i) the Base Rent for the immediate preceding Lease Year , pl us ( ii) the produc t obtained by multiplying such amoun t by t he percentage increase in the Consumer Price Index measured from the m easuring month wh ich is April of each new Lease Year to the measuring month April of the prior Lease Year. As used herein, the term “Consumer Price Index” (“Consumer Price Index”) shall mean the United States Department of Labor’s Bureau of Labor Statistics Consumer Price Index, All Urban Consumers, All Items, San Franci sco-Oakland-San Jose, California (1982-84 equals 100), or the successor of such index.
Tenant shall co ntinue paying the current Base Rent until the increas ed Base Rent has been calculated. Upon such calculation, Landlord shall give written notice to Tenant of the amount of the new Base Rent which shall be du e and payable effective as of the c ommencement of the new Lease Year and Tenant shall, upon receipt of such not ice (“Notice Date ”), pay Landlord any sh ortage in Base Rent accruing between the commence ment of the new Lease Year and the Notice Date.
4.2. Due Date. All rental payments shal l be made in advance and o n the first (1 st) day of each month during the Term of this Lease without offset or demand. All monetary obligations of Tenant under this Lease, includi ng, but not limited to, insurance premiums, property taxes, maintenance expenses, late charges, and utility costs shall be deemed “Rent” for purposes of this Lease.
4.3 Place of Payment . Rent shall be payable at s uch ti me as Lan dlord may specify, by written notice to Tenant, as hereinafter provided from time to time.”
c. Section 18.1 Notice is amended to change the additional notice to Landlord to be provided as follows:
01337.0020/900871.1
3 City of Richmond
450 Civic Center Plaza
Richmond, CA 94804
Attn: City Attorney
6. FULL FORCE AND EFFECT. Except as specifically modified by this Amendment, all of the terms, covenants, and conditions of the Original Lease shall remain in full force and effect. In case of any inconsistencies between the ter ms and conditions contained in the Original Lease and the terms and conditions contained in this First Amendment , the terms and conditions of this First Amendment shall control.
7. CONSTRUCTION. This First Amendment shall be construed according to its fair meaning as if prepared by all Parties to this First Amendment . Headings used in this First Amendment are provided for convenience only and shall not be used to construe meaning or intent.
8. AUTHORITY. Each individual executi ng this First Amendment on behalf of Tenant represents, warrants and covenants to Landlord that (a) Tenant is duly formed and authorized to do business in the state of its incorporation, (b) such person is duly authorized to execute and deliver this First Amendment on behalf of Tenant in accordance with authority gra nted und er the organizational documents, and (c) Tenant is bound under the terms of this First Amendment.
9. ATTORNEY FEES. If any lawsuit is commenc ed t o enforce any of the terms o f this First Amendment, the prevailing Party will have the right to recover its reasona ble attorney's fees and costs of suite from the other Party.
10. COUNTERPARTS. This First Amendment may be exe cuted in several cou nterparts, e ach of which shall be an original and all of which shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
01337.0020/900871.1
4 IN WITNESS WHER EOF, the Parties have caused this First Amendment to be executed by their properly authorized representatives as of the date and year first above written.
TENANT LANDLORD
MARINE SPILL RESPONSE CORPORATION.,
a Tennessee not-for-profit non-membership
corporation
By: _________________________
______________ Print Name
Its: ______________________
By: _________________________
_____________ Print Name
Its: __________________________
SURPLUS PROPERTY AUTHORITY OF
THE CITY OF RICHMOND, a public body
corporate and politic
By:
Shasa Curl, Executive Director
ATTEST
__________________________
Pamela Christian, Authority Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By:
David J. Aleshire
Authority Counsel