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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Surplus Property Authority of Richmond
1322 Canal Blvd
Richmond, CA 94804
Attention: Port Director
APN Portion of ______ [SPACE ABOVE FOR RECORDER’S USE ONLY] Exempt from filing/recording fees per Govt. Code §27383
LEASE AGREEMENT
This Lease A greement ( “Lease”) is made and entered into on this ____ day of ________, 2024 (“Lease Date”), by and between the SURPLUS PROPERTY AUTHORITY OF THE CITY OF RICHMOND , public body corporate a nd p olitic (“Landlord”) and THE DUTRA GROUP, a California corporation (“Tenant”).
RECITALS:
A. Landlord owns that certain port real property located at Port Richmond, P oint Marina Terminal (“PPMT”) in the City of Richmond, State of California which is legally described on Exhibit A (“Real Property”).
B. For purposes of this Lease, the term “Premises” are depicted on Exhibit B and consist of consist of (1) a waterside slip ("Slip"), referred to as "Basin No. 1," and the entire pier between Basin No. 1 and Basin No. 2 ("Pier") and (2) an adjacent temporary vertical structure of approximately 3,300 square feet (“Structure”). In addition to the Premises, Tenant shall have the non -exclusive right to also use the adjacent parking lot consisting of approximately 9,950 square feet located at 1319 Canal Blvd. Richmond, CA 94804 ("Parking Area").
C. Tenant currently leases from Landlord certain adjacent property (depicted on Exhibit B) pursuant to that certain Lease dated ______, 20__ (“Adjacent Property Lease”).
D. Pursuant to the t erms hereinafter set forth, Tenant desires to lease from Landlord and Landlord desires to lease to Tenant, the Lease Premises.
NOW, THEREFORE, incorporating the Recitals above, parties agree as follows:
1. LEASE PREMISES; STATUTORY NOTICE.
1.1. Lease Premises. Subject to the terms of this Lease, Landlord hereby Leases to Tenant and Tenant hereby leases from Landlord, for Tenant’s exclusive use the Premises and the non-exclusive use of the Parking Area (“Lease Premises”).
1.2. AS-IS. Tenant acknowledges that, as of the Effective Date, Tenant has inspected the Le ase Premises and determined that the Lease Premises are in good order, repair, and condition and suitable for the u ses authorized by this Lease and Landlord makes no
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representations or warranties regarding the Lease Premises. This Lease is subject to all existing easements, covenants, servitudes, licenses, rights-of-way and all matters of record.
1.3. Disclosures regarding Lease Premises. Tenant has been advised as follows:
(a) Property History. The Premises are one (1) of the four (4) shipyards developed by Henry J Kais er between 1941 and 1942 which was used to construct vessels during World War II. Immediately following the war, the Premises was converted to a ship repair facility. In 1946, the shipyards were abandoned and thereafter used for ves sel storage. The existing fa cility has received minimal maintenance since construction in the 1940’s and there may be d ebris at the bot tom of the basin.
Tenant will be solely responsible for repairs and main tenance pursuant to Section
6. (b) Asbestos Notification for Commercial Property Constructed Bef ore 1979.
Because of their age, the preexisting improvements, such as concrete, within the Premises may contain asbestos -containing materials (“ACMs”). If ACMs ar e likely to be disturbe d in the c ourse of developing any alterations, additions or improvements, Tenant shall encapsulate or remove the ACMs in accor dance with an asbestos -removal plan reasonably approved by Landlord and otherwise in accordance with all ap plicable H azardous Material s Laws , including giving all notices required by California Health & Safety Code Sections 25915-25919.7.
(c) Lead Warning Statement. Soils within the Premises may contain lead-based paints (“LBP”). Lead from paint, paint chips and dust can pose health hazards if not managed properly. Tenant may at its sole cost and expense, have a state -certified LBP Inspector complete a LBP inspection and abatement and, if Tenant completes such inspection, shall provide an abatement certificat ion to Landlord. Landlord has no specific knowledge of the presence of LBP in or about the Premises.
(d) Structure. The Structure is unpermitted. Upon termination of this Lease, the Structure must be removed by Tenant at Tenant’s sole cost and expense.
1.4. Historic Designation. Tenant is aware that the Premises are subject to City of Richmond’s Historic Structures Code as defined in Chapter 6.06 of th e Ric hmond Municipal Code.
1.5. Reservations. Landlord reserves to itself and the right to grant to others in the future nonexclusive utility ea sements (including easements for constru ction, maintenance, repair, replacement and reconstructi on of utility easements ) over , un der, across or on the Premises, provided Landlord shall use reasonable efforts to provide th at such work occurring and any easement is located such that it wi ll not unreasonably interfere with Tenant’s use and enjoyment of the Lease Premises.
1.6. Statutory Disclosure Notice. Landlord hereby advises Tenant that the Premises have not been issued a di sability access inspe ction certificate, as describe d in California Civil Code Section 55.53(e) and therefore, pursuant to California Civil Code Se ction 1938, Landlord provides the following statutory notice to Tenant:
“A Certified Access Specialist (CASp) can inspect the sub ject p remises and determine whether the subjec t premises comply with all of the applicable
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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 ma y not prohibi t the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupan cy or potential occupancy of the lessee or tenant, if requeste d by the lessee or tenant. The parties shall mut ually agree on the a rrangements for th e time and manner of the CAS p inspection, the payment of the fee for the CASp inspection, an d the cost of ma king any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
2. TERM; OPTION TO EXTEND.
2.1. Term. This Lease shall be ef fective as of January ___, 2024 (“Effective Date”) and terminate on __________, 202__ (“Initial Term”). “Term” shall mean th e Initial Term as may be extended if an Extension Option is exercised.
2.2. Options to Ex tend. Provided Tenant has not bee n in Default (as defined in Section 24) during the existing Term, Tenant shall have two (2) separate successive options to extend the existing Term ( each an “Extension Option ”) each for a period of five (5) y ears (“Extension P eriod”) provided Tenant exercises the Extension Option in writing delivered to Landlord not less than six (6) months, but n o more than nine (9) months, prior to the expiration of the existing Term. If Tenant fails to exercise the Extension Option in the tim e and manner specified, the E xtension Option (and any successive Extension Option) shall automatically terminate and be of no further force or effect. During an Extension Period, the Base Rent shall continue to be adjusted in accordance with Section 3.2.2 including at the commencement of the first year of the extended Term and for each year thereafter. Each Extension Option is personal to the or iginal Tenant under this Lease and may not be transferred or ass igned without Landlord’s approval in Landlord’s sole and absolute discretion.
2.3. Landlord Option to Terminate. At any time after the Initial Term, Landlord has the right to terminate this Lease for any reason upon providing twelve (12) months written notice to Tenant. Notwithstanding any notice to terminate under this Section 2.3, Tenant shall remain obligated to pay Base Rent and comply with all terms of this Lease prior to the actual termination date.
2.4. Recordation. Within ten (10) business da ys of the execution and acknowledgement of this Lease by both parties, Landlord shall cause a copy of this Lease to be recorded in the Official Records of Contra Costa County (“ Official Rec ords”) pursuant to Government Code Section 37393. Upon termination or exercise of any rights under this Lea se or any amendment of this Lease, the parties shall record a copy thereof in the Offi cial Records.
Upon termination of the Lea se, Te nant shall promptly execute, ac knowledge and deliver to Landlord any do cuments reasonably requested by Landlord in order to terminate the Lease in the Official Records.
3. RENT.
3.1. Rent Commencement Date . Tenant shall commence paying the Monthly Base Rent (as defined below) on the Effective Date (“Rent Commencement Date”).
3.2. Base Rent.
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3.2.1. Monthly Base Rent . The initial Annual Base Rent shall be One Hundred Fifty Thousand Dol lars $1 50,000) payable in e qual monthl y payments of Twelve Thousand Five Hundred Dollars ($1 2,500) (“Monthly Base Rent”) payable in advance on the first (1st) day of each month.
3.2.2. Annual Increase. The Monthly Ba se Rent will be increased on each anniversary of the Rent C ommencement Date by an amount equal to the change in the CPI (as defined below) between the month preceding the Rent Commencement Date for the year immediately prec eding the year in which the Base Rent increase occurs and the same m onth for the year in which the Base Rent increase occu rs (“CPI Adjustment”). By way of example only, if the Rent Commencement Date is October 1, 2023 , then the CPI Adjustment for the first anniversary of the Rent Commencement Date (which would be October 1, 2024) would be calcula ted by determining the change in the C PI between September 2024 and September 2023. F or purposes of t his Lease, “CPI” means the Consumer Price Index – All Items for All Urban Customers, Western Region area published by the United St ates Department of Labor , Bureau of Labor Statistics ( or a rea sonably equivalent index if such index is discontinued). Notwithstanding the CPI Adjust ment, the Monthly Base Rent for each year shall increase by not less than two percent (2%) but not more than five percent (5%) . If the parties inadverten tly fail to ap ply a CPI Adjustment on an anniversary of the Eff ective Date, the n that failure w ill not be deemed a waiver by Landlord of that particular CPI Adjustm ent of Base Rent, but rather, th at CPI Adjustment will be added to a ny subsequent CPI Adjustment(s) with a ppropriate back charges as necessary to capture the inadvertent s hortage. However, no lat e charge s or interest shall accrue on the shortage.
3.3. Miscellaneous. All Monthly Base Rent shall be paid in advance without notice, demand, deduction or offset on or before the first day of each calendar month during the Term.
Month Base Rent for a ny period during the Term which is less than on e (1) month shall be prorated, assuming a thirty (30) day month. All Rent shall be paid to Landlord in lawful money of the United States of Amer ica, to Landlord at 1322 Canal Blvd, Richmond, California 94804 Attention: Port Director, or at such other place as Landlord may designate in writing. Any and all sums which may be due from Tenant under this Lease are deemed “Rent.”
3.4. Interest. Any amount payable to Landlord pursuant to this Lease, other than late charges, that is not received by Landlord within thirty (3 0) days following the date on which it was due will bear interest starti ng on the thirty -first (31st) day after it was due. The interest rate shall be ten percent (10%) per annum (“ Interest”), but will n ot exc eed the m aximum rate allowed by law. Interest i s payable in addition to the late charge in Section 3. 5 but shall not accrue on the late charge.
3.5. Late Ch arge. If any Rent that is not rece ived by Landlord b y the due da te, Tenant shall pay to Landlord an additional sum of five percent (5%) of the overdue amount as a late cha rge, which is agreed to represent a re asonable esti mate of t he costs incurre d by Landlord on a ccount of such delinquency. Acceptance of a late charge s hall not const itute a waiver of Tenant's default with respec t to the overdue amount or prevent Landlord f rom exercising any of the other rights and remedies available to Landlord.
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4. SECURITY DEPOSIT. Upon execution of this Le ase, Tenant shall deliver to Landlord the sum of Thirty-Three Thousand Dollars ($33,000) to be held during the entire Lease Term as security for the faithful performance by Tenant of all of its obligation s under this L ease (“Security Deposit”). If Tenant d efaults with respect to any p rovisions of this Lease, including, but not limited to, the provisions relating to the payment of Rent, Landlord may, without notice to Tenant, but shall not be required to apply all or any part of the Security Deposit for the payment of any Rent or any o ther sum in defa ult and Tenant sh all, upon demand therefor, r estore the Security Deposit to its original a mount. Any unapplied portion of the Sec urity Deposit shall be returned to Tenant within sixty (60) days following the termination of this Lease. Tenant shall not be e ntitled to any in terest on the Security Depos it and Landlord shall ha ve the right to commingle t he Secur ity Deposit with Landlord 's othe r fund s. T enant hereby w aives the provisions of Section 1950.7 of the California Civil Code and all other provisions of law, now or hereafter in effect, which (i) establish the time frame by which a landlord mu st refund a security deposit under a lease, and/or (ii) provide that a landlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage caused by a tenant or to clean the Lease Prem ises, it being agreed that Landlord may , in addition, claim those sums specified in this Section and/or those sums reasonably necessary to compensate Landlord for any loss or damage c aused b y Tena nt's default of this Lease, including, but not limited to, a ll damages or rent due upon termination of this Lease pursuant to Section 1951.2 of the California Civil Code.
5. USE OF PREMISES.
5.1. Use. Tenant shall only use the Lease Premises for its storage and maintenance needs associated with its offsite marine construction and dredging operations, including fo r its marine fl eet, other equipment, and materi als. Tenant 's m arine construction and dredging operations conducted elsewh ere in the Bay area are summarized o n Exhibit C (“Tenant’s Offsite Marine Construction and Dredging Operations ”). Tenant may use the Lease Premises 24 hours a day, 7 days a week. Tenant shall not use or permit the Lease Premises or any part thereof to be used for any other purp ose without the prior written consent of Landlord.
Tenant shall opera te its business in an efficient, business -like and first class manner. Tenant shall at all times comply with the provisions of Section 11.
5.2. Compliance with Law. Tenant shall, at Tenant's so le cost and expense, promptly comply with all laws, ordinances, rul es, r egulations and orders (state, federal, municipal or promulgated by other agencies or bodies having or claiming jurisdiction which may include the San Francisco Bay Conservation and Development Commission (“BCDC”) related to the use, condition or occup ancy of the Premises now in effect or that may here after come into effect including, but not limited to, (a) accessibility and use by individuals wit h disabilities, (b) environmental condit ions in, on or about the Premises , and (c) Chapters 2.28 (Nondiscrimination Clauses in City Contracts Ordinance ), 2.50 (Business Opportunity Ordinance) 2.56 ( Local Employment Program Ordinance ), 2.60 ( Living Wage Ordinance ) and
2.65 (Ordinance Banning the Requirement to Provide Information of Prior Criminal Convictions on All Employment Applications) of the Richmond Municipal Code, if applicable.
5.3. Prohibitions. Tenant shall not do or permit anything to be don e in or about the Lease Premises which will in any way obstruct or interfere wi th the ri ghts of other pa rties on properties adjacent to the Lease Premises, or injure or annoy them or use or allow or permit the Lease Premises to be used for any improper, immoral, unlawfu l or obj ectionable purpos e.
Tenant shall not cause, maintain or permit any nui sance in o r about the Lease Premises, or commit or suffer to be committed any waste in or upon the Lease Premises. Tenant shall not do
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or permit anything to be done in or about the Lease Premises, nor br ing or keep any thing therein, which will in any way i ncrease the existing rate of or affect any fire or other in surance upon the L ease Premise s, or pa rt thereof, or the contents of the Le ase Premises , or cause cancellation of any i nsurance policy covering the Lea se Premises, or part the reof, or its contents.
Tenant shall not e ngage in activities (including, without limitation, spray painting, sandblasting, blowing of s tacks, f unnels or e xhaust pipes, or other releases of p articulate matter) on land or at sea within the jurisdiction of the Port of Richmond that creates a significant risk of injury or damage to the premises or pr operty owned or p ossessed by any tenant or its customers or wh ich otherwise may materially interfere with the tena nt’s or cust omer’s operations in the Port of Richmond.
5.4. Permits and Licenses. Tenant shall obtain, comply with, and keep in force at all times, at Tenan t’s sole cost and expense, any and a ll required gover nmental licenses, approvals and permits needed for the proper and lawful c onduct of Tenant’s use of the Le ased Premises (which may include BCDC) (collectively, “Permits”). Tenant shall provide copies of all Permits to Landlord w ithin ten (10) days after Lan dlord’s written request. Tenant’s failure to maintain all Permits will be a material default under this Lease.
5.5. Abandonment. Tenant shall not abandon the Lease Premises during the Term.
6. MAINTENANCE AND REPAIRS.
6.1. Tenant’s Duties.
6.1.1. General. Tenant shall, at Tenant’s sole cost and expense, maintain the Lease Premises (in its entirety) in good condition and repair at all times , including, but not limited to , removal of debris at t he bottom o f the basin . Upon the expiration or soo ner termination of this Lease , Tenant shall surrender the Lease Premi ses in good co ndition and repair, reasonabl e wear and tear excepted with the Structure removed at Tenant’s sole co st and expense.
Should Tenant fail to vacate the Lease Premises in a clean and u ndamaged condition, Landlord may, in its sole discret ion, arrange for the cleaning and/or repair o f the Lease Prem ises, the cost of which m ay be deducted from t he Security Deposit or otherwise promptly reimbursed by Tenant. Tenant shall be solely responsible for the security of the Lease Premises
6.1.2. Personnel. Tenant shall furnish and supervise sufficient personnel to properly and efficiently operate and maintain the Lease Premises in accordance with the terms of this Lease. Such personnel shall either be employees, volunteers or contractors of Tenant or employees of Operator. All such personnel shall be courteous to customers of the Lease Premises. Further, Tenant shall promptly attend to the re asonable complaints and/or comments of Lan dlord and the customers, if any, of the Lease Premises. As used herein, “Operator” shall mean any third-party engaged by Tenant to operate the Premises.
6.2. No Landlord Duties. Landlord has no maintenance or repair obligations of any kind with respect to all or any portion of the Lease Premises.
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7. ALTERATIONS AND AD DITIONS. Except as provided in Section 8 .2.1, Tenant shall not make or permit any alterations , additions or improvements in , to or about the Lease Premises or any part t hereof without the p rior wr itten consent of Landlord. Any al terations, additions or impro vements in, to or about the Lease Premises shall become a pa rt of the real property, belong to Landlord and be s urrendered with the Lease Premise s without compensation to Tenant.
8. REQUIRED IMPROVEMENTS.
8.1. Landlord Improvements. Landlord is not obligated to make any imp rovements of any kind to all or any portion the Lease Premises.
8.2. Tenant Improvements.
8.2.1. Initial Required Work. Promptly after the Effective Date, Tenant shall, at Tenant’s sole cost and exp ense and i n complianc e with a ll laws, regulations, ordinances, etc., including, but not limited to, t he Richmond Municipal Co de (collectively “Applicable L aws”), install utility meters to facilitate direct billing to Tenant by the utility companies for all utility services.
8.2.2. Future Improvements. Other than the Improv ements, Tenant shall not make or allow to be made any alterations or addition s in or to the Premises without first obtaining the written consent of Landlord. Landlord's consent will not be unreasonably withheld or delayed with respect to proposed alterations and additions that: (i) comply with all applicable laws, ordinances, rule s and regulations; (ii) will n ot in terfere with the Port of Richmond future us e of the Premises; and (iii) will not trigger any additional costs to Landlord (other than those for which Tenant is obligated to reimburse Landlord pursuant to the terms of this Lease).
Any consent giv en by Landlord under this Section 8.2 shall be deemed conditioned upon: (i) Tenant's acquiring all applicable permits required by governmental authorities; (ii) Tenant's furnishing to Landlord copies of such permits, together with c opies of the approved pl ans and specifications, prior to commencement of the work th ereon; and ( iii) Tenant’s compliance with the conditions of all applicable permits and approval s in a prompt and expeditious manner.
Tenant shall provide Landlord with not less than ten (10) days prior written notice of commencement of the work so as to enable Landlor d to post and record appropriate notices of non -responsibility. All alterations and additions permitted hereunder shall be made and performed by Tenant without cost or expense to Landlord. Tenant shall timely pay the contract ors and suppliers all am ounts due to them when due and keep the Premises free from any and all mechanics', materialmen's and other liens and claims arising out of any work performed, materials furnished or obligations incurred by or for Tenant.
Any and all alterations, ad ditions or impr ovements made to the Premises by Tenant shall become the property of Landlord upon installation and shall be surrendered to Landlord without compensation to Ten ant upon the termination of this Lease by lapse of time or otherwise unless Landlord conditioned its approval
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of such alterations, additions or improvements on Tenant's agreement to remove them, in which case Tenant shall before termination of this Lease , remove such alterations, additions and improvements, repair any damage res ulting from such removal and restore the Premises to their condition existing prior to the date of installation of such alterations, additions and improvements. Notwithstanding anything to the cont rary set forth above, this clause shall not apply to movable equipment, personal property or furniture owned by Tenant. Tenant shall repair at its sole cost and exp ense all damage caused to the Premises by removal of Tenant's movable equipme nt, personal pr operty or furniture and such other alterations, additions and improvements as Ten ant shall be required or allowed by Landlord to remove from the Premises.
All alterations, additions and improvements permitted under this Section 8.2 shall be constructed (i) diligently, in a g ood and workmanlike manner with new, good and sufficient mate rials; (ii) by a licensed bonded general contractor licensed in the State of California; and (iii) in compliance with all Applicable Laws, including, without li mitation, Labor Cod e 172 0 et s eq which includes paying prevailing wages, and those related to accessibility and use by individuals with disabilities.
9. SIGNS. Except as provided below, Tenant shall not place any sign on or at the Lease Premises, i ncluding, but not limited to, sig nage i n win dows, without L andlord’s prior wr itten consent which may spec ify requirements (“Approved Sign ”). Any Approved Sign shall be installed solely at Tenant’s sole cost and expense . Tenant shall obtain any applicable permits for the installation of an Approved S ign and comply with all A pplicable Laws. Tenant shal l maintain Approved Signs in g ood condition at a ll times at Tenant’s sole cost and expense. If Tenant abandons or vacates the Lease P remises, Tenant shall no longer have the right to use the Approved Signs which Landlord shall have a right to remove.
10. UTILITIES. Landlord is not obligat ed to provide uti lities to the Premises. Tenant shall comply with Section 8.2.1 to install separate m eters and shall contact all applicable utility companies to arrange for direct billing to Tenant for services to the Premises.
11. ENVIRONMENTAL MATTERS; SAFETY PRECAUTIONS & POLLUTION CONTROL.
11.1. Hazardous Materials.
(a) Tenant shall not cause or per mit any Hazardous Material (as defined in below) to be brought, k ept, used, generated, released or disposed in, on, under or about the Lease Premises by Tenant, its agents, emplo yees, contractors or inv itees; provided, however, that Tenant may use, store and dispose of, in accordance with applicable Laws, limited quanti ties of standard office and janitorial supplies, but only t o the extent re asonably necessary for Tenant's operati ons in the Lease Premises and provided that Tenant remains liable for the release or disposal of any such materials and supplies at or on the Lease Premises that occurs during the Term hereof. Tenant hereby indemnifies Landlord from and against any breach by Tenant of the obliga tions stated in th e preceding sentence, and hereby agrees to defend and hold Landlord harmless from and against any and all claims, liability, losses, damages, costs and/or expens es (including, without limitation, diminution in valu e of the Lease Premises, or any portion th ereof, and sums paid in settlement of claims , fines, pe nalties, attorney s' fees, consultants' fees an d experts' fees) that arise during or after the Term as a result of such br each. This
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indemnification of Landlord by Tenant includes, without limitation, death of or injury to person , damage to any property or the environment a nd costs incurred in connection with a ny in vestigation of site conditions or any cleanup, remedial, removal, or restoration work required by a ny federal, state or loc al governmental agency or politi cal subdivisi on, including th e City of Ri chmond, because o f any Hazardous Material present in, on, under or about the Premises (including soil and ground water co ntamination) that results from such a breach. Without limiting the foregoing, if the presence of any Hazard ous Material in , on, under o r ab out the Lease Premises caused or permitted by Tenant results in any contamination of the Lease Premises, Tenant shall promptly take all actions at its sole expense as are necessary to return the sa me to the condition existing prior to t he introduction of such Hazardous Material; provided that Land lord's approval of such actions, and the contractors to be used by Tenant i n connection therewith, shall first be obtained. This indemnification of Landlord by Tenant shall survive the expiration or sooner termination of this L ease. Notwithstanding the foregoing, in no event shall Tenant be liable for any Hazardous Materials located on the Premises as of the Effective Date or any Hazardous Materials placed on the Premises by a party other than Tenant or Tenant’s agents, contractors or employees.
(b) Definitions. As used in this Lease, the term "Hazardous Material" means any hazardous or toxic substance, material or waste that is or becomes regulated by any local governmental authority, the State of Ca lifornia or the United States government. The term " Hazardous Mate rial" includes, without limitation, any substance, material or was te that is (i) defined as a "hazardou s waste" or similar term under the laws of the jurisdiction where the Premises is located; (ii) designated as a "ha zardous substance" pursuant to S ection 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317) ; (iii) defined as a "hazardous waste" pursuant to Section 10 04 of the Federal Resource, Conservation and Recovery Act , 42 U .S.C. § 690 1 et seq. ( 42 U.S .C. § 69 03); (iv) defined as a "hazardous s ubstance" pursuant to Section 101 of the Compr ehensive Environmental Response, Compensation and Li ability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (v) hydrocarbons, petr oleum, gasoline, crude oil or any products, by-products or fractions thereof; or (vi) asbestos in any form or condition.
The term " Laws" me ans any applicable federal, state or local laws, ordinances, rules or regulati ons r elating to any Hazardous Material a ffecting the Prem ises, including, without limitation, the specific laws, ordinances and regulations referred to above. References to speci fic Laws shall also be references to any amendments thereto and to any applicable successor Laws.
11.2. Safety Precautions and St orm Water P ollution Control. In conn ection with Tenant’s use and occupancy of the Lease Premises, Tenant shall take measures to minimize the potential for Hazardous Materials or other pollutan ts to enter the San Francisco Bay and/or Port of Richmond’s storm water dra inage system. The targeted pollutants include Haz ardous Materials and floatable materials, oxygen demanding substances (e .g. plant debris, street litter and organic substances), bacteria and viruses, sediment, and nutrie nts (e.g. nitrogen and ph osphorous).
These measures shall pertain to the extent related to Tenant’s use and occupancy of the Premises, and shall include, but not be limited to, taking all steps reasonably necessary in:
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(1) Preventing fuel spills and leaks and reducing the impact to storm water by not topping off fu el tanks; using se condary containment when transferring fuel from tanker trucks to fuel tanks; using absorbent material on small spills and for general cleaning rather than hosing; carrying out all federal, state, regional and local re quirements re garding underground storag e tank s or i nstalling above ground tanks; fueling mobile equipment at designat ed fueling areas; and designing fueling areas to prevent th e run-on of storm water and the run-off of spills. “Secon dary con tainment” m eans a back -up sy stem tha t prevents the spread of pollutants should any spill, leak or otherwise escape. (2) Preventing the discharge of pollutants to storm water from vehicle, boat and equipment m aintenance a nd rep air by containing w aste oil u nder cover with absorbent material under each container; keeping drip pans or container under the areas that might drip pollutants; using a vehicle maintenance area designed to prevent storm water pollution; cleaning storm drain inlets regularly, especially after lar ge s torms; not po uring ma terials down storm drains; dry sweeping instead of hosing down work areas; storin g idle equipmen t under cover, switching to non-toxic chemicals for maintenance when possible; cleaning small spills with rags and larger spills with a bsorbent materials; and m inimizing the use of solvents.
(3) Preventing the discharge of pollutants to storm water from ou tdoor equipment and operations by r educing the amount of wa ste created; enclosing or covering all or some of the equipment; and installing secondary containment. (4) Preventing t he dis charge of p ollutants to storm water from vehicle and equipment washing and steam cleaning by maintaining designated wash areas, preferably covered, to prevent contact with storm water; and not per mitting any wash water to enter the storm drains.
(5) Preventing t he di scharge of pollutants to storm water from outdoor loading/unloading of materials by parking tank trucks or delivery vehi cles so that spills or leaks can be contained; covering the loading and unloading docks to reduce exposure of materials to rain; and using drip pans under hoses. (6) Preventing the discharge of po llutants to storm water from outdoo r storage areas by insta lling appropriate safeguards against accidental release; installing secondar y co ntainment whe re reaso nably required; co nducting regular inspections.
(7) Protecting materials from rainfall run -on, run-off and wind dispersal by storing materials indoors; co mplying with speci fic fe deral, state, regiona l and local standards regarding storage of Hazardous Material; enclosing or covering materials; periodically sweeping parking lots or oth er surfaces nea r bulk material storage areas to re move debris blown or was hed from storage a reas; and installing pellet traps at storm wate r discharge points where plastic pellets are loaded and unloaded.
(8) Preventing the discharge of pollutants to storm water from waste handling and disposal by trackin g waste generation, stor age, and disposal; reducing waste generation and disposal through source reductions, reuse and recycling; preventing ru n-on a nd run -off from waste management areas; and covering dumpsters and garbage cans during the rainy season.
(9) Preventing the discha rge of pollutants to storm water from con taminated
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or erodible surface areas by leaving as much vegetation on-site as reasonably possible; minimizing soil exposure; stabilizing exposed soils; and p reventing storm water run-on and run-off.
(10) Preventing the discharge of po llutants to storm water from buildings and grounds mainten ance by washing a nd clean ing up with as lit tle wa ter as reasonably possible; preventing and cleaning up spills immediat ely; and keeping debris from entering the storm drains.
(11) Preventing the discharge of pollutants to storm water from building repair, remodeling, and construction by using appropriate con tainment and erosion controls; and enclosing or covering building material storage areas. (12) Preventing the discharge of pollutants to sto rm water and receiving waters from over water activities by minimizing over water maintenance; limiting over water hull surface maintenance to sanding and minor painti ng; not spray painting vessels while they are o n the water; avoid washi ng down boats with soap and detergent; using phosphate-free and biodegradable detergent for hull washing; keeping organic and in organic wastes out of the water; and cleaning up spills and wastes immed iately. “Over water activities” refers to activities undertaken by Tenant on the waters of San Francisco Bay or waters flowi ng into San Francisco Bay.
(13) Preventing the disc harge of pollutants to storm water by using ground cloths when pai nting boats on land; using tarps, plastic sheet ing, or other material to contain spray paint and blasting sand; properly disposing of surfa ce paint ch ips, used blastin g sand, residual paints , and oth er mat erial; and sweeping any drydocks before flooding them.
11.3. Right of Entry. Notwithstanding Section 15, Landlord, its employees, agents and consultants, shall have the righ t to enter the Premise s at any ti me i n order to conduct pe riodic environ mental ins pections an d tests to determine whether any Hazardous Mat erials are pres ent. The costs and expenses of such inspections shall b e paid by Landlord unless a default or breach of th is Lease, violatio n of Laws or contamination caused or permitted by Tenant is found to exist. In such event, Tenant shall reimburse Landlord upon dema nd, as additional rent, for t he reasonable costs and expenses of such inspections.
11.4. Notice to Landlor d. T enant shall prompt ly notify L andlord in writin g of: (i) any enforcement, clean -up, r emoval or other governmental or regulatory action instituted or th reatened regarding the Premis es pursuant to any Laws; (ii) any claim made or threatened by any perso n against Tenant or the Premises relating to damage, contribution, cost recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Material; and (iii) any reports made to or received from any governmental agency arising o ut of or in connection w ith any Hazardous Material i n or rem oved from th e Premises, including a ny complaints, notices, warnings or asserted violations in connection therewith.
12. CLAIMS AGAINST PREMISES. Tenant shall not suffer or permit to be enforced against the Lease Premises, or any pa rt thereof, any mec hanic’s, materialman’s, contract or’s or subcontractor’s liens arising f rom any clai m for any work of con struction, repai r, restoratio n, replacement or i mprovement of or to the Lease Premises or any other claim or deman d how ever the same may arise, and Tenant shall pay or cause to be pai d any and all such claims or
01337.0020/954454.3 12
demands before any action is brought to enforce the same against the Lease Premises. Tenant agrees to indemnify and hold Landlord and the Lease Premises free and harmless of all liability for any and all such claims and demands , together with Landlord’s reasonable attorneys’ fees and all costs and expenses in connection with any such claims or liens.
13. PERSONAL PROPERTY & POSSESSORY INTEREST TAXES.
13.1. Mandatory Notice. Notice is h ereby given to Te nant pur suant to Ca lifornia Revenue and Taxation Code Section 107.6 and Health and Safety Code Section 33673 that the interest of Te nant cr eated in th e Leas e Premises pur suant to this Lease is subject t o rea l property taxation and accordingly Tenant is subject to the payment of property taxes levied on said possessory interest.
13.2. Payment of Taxes. Tenant shall pay prior to delinquency any and all personal property taxes and possessory interest taxes attributable to the Premises. Tenant is aware that this le asehold is su bject to possessor y interest t axes as assessed by the Cou nty of Contra Costa. T enant shall indemnify, defe nd and hold h armless Landlord a gainst any and all s uch taxes, fees, penalties or interest assessed, or imposed against Landlord hereunder. In the event Tenant fails to t imely pay any tax, assessment, fee, pe nalty or inte rest, Landlord, at it s option, shall have the right to pay such charge and treat such payment as additional rent to be charged to Tenant and paid by Tenant to Landlord within five (5) days after receipt of written notice from Landlord. Tenant shall be sole ly res ponsible for th e payment of al l taxes attri butable to its operations, including but not limited to, sales taxes and income taxes.
14. HOLDING OVER. If Tenant remains in possession of the Lease Premises, or a ny part thereof, af ter the exp iration of the Te rm, such occupancy shall be a tena ncy from mont h-to- month with Monthly Base Rent payable each month equal to one hundred fifty percent (150%) of the Monthly Base Rent that was payable prior to expiration of th e Te rm, canc elable up on thirty (30) days’ written notice upon the terms and conditions that existed during the last year of the Term.
15. ENTRY BY LANDLORD. Tenant agrees that representatives of Landlord, as designated by Landlord, shall, during normal business hours, or outside normal business hours in the event of an emergency, have the right to enter the Lease Premises and inspect the same to determine if the s ame com plies with each and every term and c ondition of thi s Lease an d with all applicable municipal, county, state and federal laws, rules, ordinances and regu lations relating to building occ upancy and t he conduct o f Tenant ’s business. Te nant waives any cl aim for damages or for any injur y or inconvenience to or i nterference with Tenant’s business, any loss of occu pancy or quiet e njoyment of the Lease Premises , a nd an y loss occasioned thereby.
Landlord shall have the right to us e any a nd all me ans which Landlord may deem pr oper to open said doors in an emergency in order to obtain entry to the Lease Premises without liability to Tenant, except for any failure to exercise reasonable care for Tenant’s property. Any entry to the Lease Premises obtained by Landlord under this Section, shall not be construed or deemed to be a forcible or un lawful entry i nto, or a detainer of, the Lease Premises, or an eviction of Tenant from the Lease Premises.
16. DAMAGE. In the event of a f ire or other casua lty in the Pre mises, this Lease sha ll terminate effective immediately. The proceeds from any insurance paid by reason of damage to or destruction of the Premises or any par t thereof insur ed by Landlord shall belon g to and be paid to Landlord. The proceeds from any insurance paid by reason of damage to or destr uction of the Premises or an y part t hereof insured by Tenant shall belong to and be paid to Tenant.
01337.0020/954454.3 13
Landlord and Tenant agree that the terms of this Lease shall govern the effect of any damage to or destruction of t he Premises with r espect to the terminati on of this Lease and hereby waive the provisions of any present or future statute or law to the extent inconsistent therewith.
17. EMINENT DOMAIN. If all or an y portion of the Pr emises are taken under the power of eminent domain or sold under the threat of the exercise of such power (all of which are referred to herein as "condemnation"), this Lease shall cease and terminate as of the dat e of taking. All proceeds from any condemn ation of the Premises s hall belong and be paid to Landlord ; provided that Tenant s hall be ent itled to any comp ensation separately awarded to T enant for loss of Tenant's trade fixtures, if any and relocation costs.
18. ESTOPPEL CERTIFICATE. Tenant shall, at any t ime and from time to time, upon not less than ten (10) days’ prior written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing (a) certifying that this Lease is un modified and in full force and effect or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect and the date to which the rental and other charges are paid in advance, if any; and (b) acknowledging that there are not, to Tenant’s knowledge, any uncured defaults on the part of Landlord hereunder, or specif ying such defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed. Any such stat ement may be rel ied upon by any prospective purchaser or encumbrancer of all or any porti on of which the Lease Premises are a part.
19. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease, in whole or in part, n or sublet all or an y part of the Pre mises, without t he prior written consent of Landlord which consent may be withheld by Landlord in its sole a nd absolute discretion. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to a ny subsequent as signment or s ubletting. I rrespective of any assignment or sublease and, Tenant shall remain fully liable under this Lease and shall not be released from performing any of the terms, covenants a nd con ditions of thi s Lease. A transfer of any ownership interest in the entity comprising Tenant shall be dee med an assignment under this Lease. No interest of Tenant in this Lease shall be assignable by operation of law. Any transfer, assignment or subletting of the Lease Premises without such prior written consent shall be void for all purposes and shall be a Default under this Lease.
20. INDEMNIFICATION. Tenant shall defend, indemnify, and hold Landlord harmless from, and r eimburse Landlord for, any lo ss, cost, expense, liability, or d amages of ev ery kind or nature, including but not limited to in jury to or death of an y person or d estruction of the Lease Premises in connectio n with or related t o, the use by Tenant or a ny thi rd party (including officers, directors, em ployees and invitees) of the Lea se Premises or any facilit ies located thereon in co nnection with the busi ness being co nducted by Tenant. In addition, Tenant shall defend, indemnify, and hold Landlord harmless from any breach or default in the performance of any obligation to be performed by Tenant under this Lease, any violation of governmental law or regulation, or any intentional misconduct o r n egligence of Tenan t, or any officer, agent, employee, gu est, o r invit ee of Tenant, re gardless of whether su ch in tentional misconduct or negligence was active or passive. In the event of the oc currence of any event which is an indemnifiable event pursuant to this Section, Tenant shall notify L andlord promptly and, if such event involves the claim of any third person, Tenant shall assume all expenses with respect to the defense, settlement, adjustment, or compromise of any claim; provided that Landlord may, if it so desires, employ counsel at its own expense to assist in the handling of such claim. Tenant shall ob tain the prio r wri tten approval of L andlord before entering in to any s ettlement, adjustment or compromise o f such claim. Tenant shall reimburse Landlord or any third party
01337.0020/954454.3 14
(including off icers, direct ors, and e mployees of Landlord) f or any legal expenses an d cos ts incurred i n co nnection with or in enforcing the indemn ity herein p rovided. Al l indemnification obligations hereunder shall survive the e xpiration or terminat ion of this Lease. No twithstanding the generality of the foregoing, Tenant’s ob ligation to indemnify Lan dlord shall not extend to liability solely caused by the gross negligenc e or willful misconduc t of Landlord , it s office rs, employees or agents on the Lease Premises, or events or activities conducted by Landlord. The provisions of this Section 20 shall survive termination of this Lease for any reason.
21. INSURANCE.
21.1. Landlord's Insurance. At no cost t o Tenant, Landlor d may secure and maintain policies of insurance for the Lease Premises cove ring loss of or d amage to the Lease Premises with loss payable to La ndlord. Landlord shall no t be obligated to obtain ins urance for any of Tenant's trade fixtures, equipment, furnishings, machinery or oth er property. Such policies may provide protection against fire and extended coverage perils and such additional perils as Landlord deems suitable, and with such deductible(s) as Landlord shall deem reasonably appropriate. Tenant shall not be a beneficiary of any such policies.
21.2. Tenant's Insurance Requirements. Tenant, a t it s own co st and expense, shall provide and maintain insurance coverage as set forth in attached Exhibit D entitled “Insurance Requirements for Tenant.”
21.3. Waiver of Subrogation. Tenant agrees that in the event of loss arising out of any of the p erils for whi ch it ha s agreed to provide insu rance against, Tenant s hall look solely to its insure r for recovery. Tenant hereby grants to Landlord, on behalf of its insurers, a waiver of any right to subrogation which any such insurer of Ten ant may acquire against Landlord by virtue of the payment of any loss under such insurance.
21.4. Failure to Maintain Insurance; Proof of Compliance. If Tenant fails or refuses to procure or ma intain insurance require d by this Lease, or fails or refuses to f urnish Landlord with required proof that the insurance has been procured and is in full force and paid for, Landlord shall have the right but not the obligation, at Landlord’s sole election and on five (5) days ’ notice, to procur e and maintain such insurance. The premiums pa id by Landlord shall b e t reated as added Rent due fr om Tenant w ith interest at the rate of ten pe rcent (10%) pursuant to Section 3.4. Landlord shall give prompt notice of the paymen t of such premiums, stating the amounts paid and the names of the i nsurer or in surers, and interest shall run fr om the day of the notice.
Notwithstanding that Landlord may secure policies under this S ection, the failure o f Tenant to obtain and maintain ins urance under this Lease shall also constitute a material default by Tenant.
24. TENANT’S DEFAULT. The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant (“Tenant’s Default”):
a. The failure by Te nant to make any payment of Monthly Base Rent or any oth er payment required to be m ade by Tenant hereunder, as a nd w hen d ue, where such fai lure shall continue for a period o f three (3) day s after writ ten no tice thereof by Landlord to Tenant.
b. A default under the Adjacent Property Lease.
01337.0020/954454.3 15
c. The failure of Tenant to provide insurance in accordance with Section 24.
d. Vacating or abandonment of the Lease Premises by T enant without p aying all Rent due under this Lease.
e. Assignment or subletting by Tenant without La ndlord’s cons ent as required by Section 20.
f. A f ailure b y Tenant to observe o r p erform a ny o ther covenants, cond itions or provisions of this Lease to be observed or per formed by Tenant , where s uch failure shall continue for a period of twenty ( 20) days after written notice thereof by Landlord to Te nant; provided, howe ver, that if t he nature o f the default involves such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within such thirty (30) day period and thereafter diligently prosecutes said cure to completion.
g. The making by Tenant of any general assignment or general arrangement for the benefit of creditors, or the filing by or against Tenant of a petition to have Tenant adjudged a ba nkrupt, or a petition or reorganization or arrangement under any law relating to ba nkruptcy (unless, in the case of a pet ition filed agai nst Tenant, the same is dismissed within sixty (60) days); or the appointment of a trustee or a receiver to take posses sion of subs tantially all of Tenant’s assets located in or about the Lease Premises or o f Tenant’s int erest in this Lease , wh ere possession is not restored to Tenant within thirty (30) day s; or the attachment, execution or other judicial seizure of substantially all of Tenant’s assets located in or about the Lease Premises or of Tenant ’s interest in this Lease, where such seizure is not discharged in thirty (30) days.
Any notice required to be given by Landlord under this Section shall be in lieu of and not in additio n to any no tice requir ed under Sec tion 1161 of the C alifornia Code of C ivil Procedure.
25. REMEDIES ON TENANT’S DEFAULT. In the event of any such material de fault or breach by Te nant, Landlord may at any time ther eafter and without notice or dema nd and, without limiting Landlord in the exercise of a righ t or remedy Landlord may have by reason of such default or breach:
a. Terminate Tenant’s right to possession o f the Lease Premises by any lawful means, in w hich case this Lease shal l terminate and Te nant shall i mmediately surrender p ossession of the Lease Pr emises to Landlord. In s uch e vent, Landlord shall be entitled to r ecover from Tenant all damages incurred by Landlord by reason o f Tenant’s default includ ing, but n ot limited to, the cost of recovering possess ion o f the Lease Premi ses, expenses of reletting, in cluding necessary r enovation a nd alteration of the Lease Premises, for re asonable attorneys’ fees and costs, any real estate commission actually paid, or the worth at the tim e of award by the court having jurisdiction thereof of the amount by which the unpaid Rent for the ba lance of the Term after the time of su ch award exceeds the amount of suc h rental loss for the same period that Tenant prove s could be reason ably avoided. Unpaid installments of Rent or other sums shall
01337.0020/954454.3 16
bear interest from due date thereof at the rate of ten percent (10%) per annum or at the maximum legal rate then in effect in California, whichever is higher. In the event Tenant shall have abandoned the Lease Premises, Landlord shall have the option of (1) tak ing possession of the Lea se Pr emises and recoveri ng fr om Tenant the amount specified in this subparagraph, or (2) proceed ing under the provisions of the following subparagraphs.
b. Maintain Tenant’s right to possession, in w hich case this Lease shall continue in effect whether or no t Tenant shall be entitl ed to enforce all of Landlord’s rights and remedies under this Lease, including the right to recover Rent as it becomes due hereunder.
c. Pursue any other re medy now or hereaf ter available to Landlord under the laws or judicial decisions of the State of Cali fornia. Furthermore, Tenant agrees tha t no election by Landlord as to an y rights or remedies a vailable he reunder or pursuant to any law or judicial decisions of the State of California shall be binding upon Landlord until the time of trial of any such action or proceeding.
d. All rights, privileges and elections or remedies of L andlord are cumulative and not alternative with all other rights and remedie s at law or in equity to the fullest extent permitted by law.
e. Tenant waives any right of redemption or reli ef fr om forfeiture under California Code of Civil Proc edure Sections 1174 and 1179, or under any other present or future law in the event Te nant is evicted and Landlord takes possession of the Premises by reason of a default.
26. LANDLORD'S RIGHT TO PERFORM . Notwithstanding anythi ng to the contrary set forth elsewhe re in this Le ase, in the event Tenant fails to perform any affirmative duty or obligation of Ten ant under this Lease, then within five (5 ) business days after written notice to Tenant (and without notice in case of an em ergency) Landlord may (but shall n ot be obligated to) perform such duty or obligation on Tenant's behalf, including, without limitation, the obtaining of insurance policies or governme ntal licenses, permits or approvals. Tenant shall reimburse Landlord upo n demand for the reasonable costs an d expenses of any such perform ance (including penalties, interest and attorneys' fees incurred i n connection therewi th). Such reasonable costs and e xpenses incurred by Landl ord shall be deemed additional rent hereunder.
27. LANDLORD’S DEFAULT. A failure by Landlord to ob serve or perform any covenants, conditions or provisions of th is Lease t o be observed or performed by Lan dlord, where such failure shall co ntinue for a period of thirty (30) days after written no tice th ereof by Tenant to Landlord; provided, however, that if the nature of the default involves such that more than thirty (30) days are reaso nably required for its c ure, then La ndlord shall not be deemed t o be in default if Landlord commences such cure within such thirty sixty (30) day period and thereafter diligently prosecutes said cure to completion (“Landlord’s Default”). Tenant shall not have th e right to offset any amounts against Rent.
28. WAIVER. The waiver by Landlord of any t erm, covenant or condition herein contained shall not be deemed to be a w aiver of such term, covenant o r co ndition on any su bsequent breach of the sa me or any other term, covenant or condition herein contained. Acceptance of late payment of Monthly Base Rent or additional Rent by Landlord shall not be deemed to be a
01337.0020/954454.3 17
waiver of a ny preced ing breac h by Te nant of any term, covenant or condition of this Lea se, other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such Monthly Base Ren t or Additional Rent.
29. TIME. Time is of the essence of this Lease and each and all of its provisions.
30. FORCE MAJEURE. A party’s failure to perform related to any cause beyond the Party’s reasonable contr ol including, without limitation, an y act of God, f ire, terrorism, quarantine, pandemic or other casualty or accident, pandemic, quarantine, strike, lock -out, factory shut - down or altercation, embargo, or riot (excluding all financial obligations) shall not be considered a Default hereunder. No prevention, delay, or stoppage of performance shall be excused unless: (a) the party notifies the other party within ten (10) days of s uch prevention, delay or stoppage that it is claiming excuse of its obligations under this Section 30; and (b) the party diligently takes all reasonable actions necessary to cure the prevention, delay or stoppage and the party effects such cure within a reasonable time.
31. SALE OF PRE MISES BY LANDLORD. In the event of any sale of the Real Property, Landlord shall be and hereby is entirely freed and relieved of all liability under any and all of the covenants and obligations contained i n or derived from this Lease ari sing out of any ac t, occurrence or omission occurring after the consummation of such sale. The purchaser, at such sale or any s ubsequent sale of the Real Proper ty, shall be deemed, with out any furt her agreements between the parties or their succe ssors in interest or between the parties and any such purchaser, to have assumed and agreed to carry o ut each and all of the co venants and obligations of Landlord under this Lease.
32. COMMISSION. Landlord and Tenant hereby warrant to each other that they h ave had no dealings with any real estate broker or agent in connection with the negotiation of this Lease, and that they know o f no other real estate broker or agent who is entitled to a commission in connection with this Lease. Each party agrees to indemn ify and defend the other party against and hold the other party harmless from any and all claims, demands, losses, liabilities, lawsuits, judgments, costs and expenses (including wi thout limitation reasonable attorn eys' fees) with respect to any leasing commission or equivalent compensation alleged to be owing on account of a ny dea lings wit h an y real esta te broker or age nt, other than the Brokers, occurring by, through, or under the indemnifying party.
33. SUCCESSORS. Subject to the provisions of this Lease with respect to assignment and subletting, each a nd all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the successors of the respective parties.
34. NOTICES. Any notices, demands or communications under this Lease between the parties shall be in writing, and may be given by (i) personal service, (ii) overnight delivery, or (iii) mailing via United States mail, certi fied mail, postag e prepaid, retur n rece ipt requested (“ US Mail ”), addressed to each party as set forth below or such other address as may be furnished in writing by a party, and such notice or communication shall, if p roperly addressed, be deemed to have been given (a) as of the date so d elivered under delivery methods (i) or (ii) above, or (b) three (3) business days after deposit into the U.S. Mail.
01337.0020/954454.3 18
Tenant:
The Dutra Group
2350 Kerner Blvd Suite 200
San Rafael, CA 94901
Attn: _________
With a copy to: The Dutra Group
_____________________
_____________________
Attn: ________________
Landlord: Surplus Property Authority of Richmond
1322 Canal Blvd
Richmond, CA 94804
Attention: Port Director
With Copy to: Surplus Property Authority of Richmond
1322 Canal Blvd
Richmond, CA 94804
Attention: Authority Legal Counsel
35. ENTIRE AGREEMENT. This Lease contains the entire agreement between the parties.
No pr omise, repre sentation, warranty, or covenant not in cluded in this Lease has bee n or is relied on by eit her party. Each party has relied on his own examination of this L ease, the counsel of h is own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the Lease Premises or improvements, to read the Lease or other documents or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice.
36. CONSTRUCTION. This Lease shall be construed according to its fair meaning a s i f prepared by both parties. Headings used in this Lease are provided for co nvenience only and shall not be used to construe meaning or intent.
37. INDEPENDENT CONTRACTOR. Neither Landlord nor any of its employees shall have any control over the manner, mode, or means by which Tenant’s agents or employees perform the services required herein, except as otherwise set forth herein. Landlord shall have no voice in th e selection, di scharge, sup ervision, or control of Tenant’s employees, servants, representatives, or agents, or in fixing thei r number, compensation, or hours of service. Tenant shall pe rform all s ervices required h erein as an independent contract or with o nly such obligations as are consistent with that r ole. Tenant shall not at any time o r in any manner represent that it or any of its agen ts o r emp loyees a re agents or emplo yees of Landlord.
Landlord shall not in an y way or for any purpose beco me or be dee med to be a par tner of Tenant in its business or otherwise, or a joint venturer or a member of any joint enterprise with Tenant.
38. ATTORNEYS’ FEES. In the event either party places the enforcement of this Lease, or any part of it, or the collection of any Rent due, or to become due, hereunder, or recovery of the possession of the Premises, in the hands of an attorney, or fi les sui t upon the same, the prevailing part y shall recover its reas onable attorneys' fees, costs and expenses, including those that may be incurred on appeal. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not suit i s filed or any suit that may be filed is pursued to decision
01337.0020/954454.3 19
or judg ment. The t erm "prevai ling party" shall include, without limitation, a p arty who substantially obtains or defeats the re lief sought, as the case may be, wh ether by judgment or the abandonment by the other party of its claim or defense; provided however, th e parties may agree to compromise or settlement in writin g, which compro mise or settlement may include a provision that each party is to bear their own attorneys’ fees and costs. The attorneys' fee award shall not be compute d in acc ordance with any court f ee schedule, but shall be such as to fully reimburse all attorneys' fees reasonably incurred.
39. QUIET ENJOYMENT. Subject to Tenant’s payment of all R ent and performance of all covenants and obligations of Tenant under this Lease, Tenant shall have quiet possession and quiet enjoyment of the Lease Premises.
40. AUTHORITY. Each individual executing this Lease on behalf of Tenant represents and warrants that he or she is fully authorized to execute and deliver this Lease on behalf of Tenant and that this Lease is binding upon Tenant in accordance with its terms.
41. GOVERNING LAW. This Lease shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California.
42. JURISDICTION. If any legal action is necessary to enforce the terms and conditions of this Lease, the parties agree that a court of competent jurisdiction in the County of Contra Costa shall be the sole venue and jurisdiction for the bringing of such action.
43. SEVERABILITY. If an y paragraph, section, sentence, cla use, or phrase contained in this Lease shall become illegal, null or void, against public policy, or otherwise unenforceable, for any reason, or held by any court of com petent jurisdiction to be i llegal, null or void, against public policy, or o therwise un enforceable, th e remaining paragraphs, section s, sentences, clauses or phrases contained in the Lease shall not be affected thereby.
44. AMENDMENT OR MODIFICATION. Any modification or amendment of any provision of this Lease must be in wri ting and bear the signature of the duly authorized represe ntatives of both parties.
45. COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deeme d an original but all of whi ch shall be de emed b ut one a nd the same instrument, and a facsimile copy of such execution shall be deemed an original.
46. NO ELECTRONIC EXEC UTION. This Lease m ay not be executed electronically because it needs to be recorded and electronic ally executed documents are not acceptable by the Office of the County Recorder.
47. EXHIBITS. Exhibits A, B, C, and D attached hereto is incorporated herein by reference.
[SIGNATURES ON FOLLOWING PAGE]
01337.0020/954454.3 20
NOW, THEREFORE, the p arties here to have entered into the Lease as o f the Lease Date.
TENANT: LANDLORD:
THE DUTRA GROUP,
a California corporation
By: _______________________
Harry K. Stewart
Chief Executive Officer
By: _______________________
Molly F. Jacobson
Secretary
SURPLUS PROPERTY AUTHORITY OF
THE CITY OF RICHMOND,
a public body corporate and politic
By: _____________________________
Shasa Curl, Executive Director
Dated: ________________, 2024
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By: _____________________
David J. Aleshire
Authority Counsel
01337.0020/954454.3 1
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
That certain real property in the City of Richmond, County of Contra Costa, State of Cali fornia legally described as follows:
01337.0020/954454.3 1
EXHIBIT B
DEPICTION OF PREMISES
Area outlined in green below is the Premises
Area
outline in
red is the
Adjacent
Property
01337.0020/954454.3 1
EXHIBIT C
TENANT’S OFFSITE MARINE CONSTRUCTION AND DREDGING OPERATIONS
TO BE COMPLETED PRIOR TO EXECUTION
01337.0020/954454.3 1
EXHIBIT D
TENANT INSURANCE REQUIREMENTS
01337.0020/954454.3 2
01337.0020/954454.3 3
01337.0020/954454.3 1
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _________________, 2024 before me, ___________________________, a notary public, personally appeared _______________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and a cknowledged t o me t hat h e/she/they e xecuted t he same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY und er the laws of the State of C alifornia th at the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________________
Notary Public
SEAL:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is at tached, and not the truthfulness, accuracy or validity of that document.
01337.0020/954454.3 1
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _________________, 2024 before me, ___________________________, a notary p ublic, personally appeared ___________ ____________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the wit hin instru ment and ack nowledged to me t hat he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________________
Notary Public
SEAL:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the documen t to which this certificate is a ttached, and not the truthfulness, accuracy or validity of that document.