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AMENDMENT NO. 2
TO
MARINE TERMINAL OPERATING AGREEMENT
THIS AMENDMENT NO. 2 TO MARINE TERMINAL OPERATING AGREEMENT (this “Second Amendment”) is made and entered into as of _____ day of __________, 2025 (the “Effective Date”), by and between THE PORT OF R ICHMOND, a California municipal corporation (the “ Port”) and TRANSLOGIX, L.L.C., a Washington limited liability company (“Vendor”).
Recitals
A. WHEREAS, t he Port and Vendor entered into that certain Marine Terminal Operating Agreement dated May 19, 2009 ( as amended, the “Agreement”). Amendment No. 1 (“First Amendment”) to the Agreement, dated May 4, 2011, revised the compensation provided for in Section 2.1. For purposes of this Second Amendment, t he capitalized, defined terms used in the Agreement shall hav e the same meanings when used in this Second Amendment, unless this Second Amendment provides a different meaning. The parties desire to amend the Agreement on the terms and conditions set forth in this Second Amendment.
B. WHEREAS, the California Air Resou rces Board (“CARB”) imposes certain regulations relating to air quality and emissions upon vessels calling at California ports , including, but not limited to, CARB’s At -Berth Regulations (as amended) (“CARB regulations”);
C. WHEREAS, the Port and Ocean Carriers that call at the Port of Richmond have not yet been able to comply with the CARB regulations and seeks assistance from Vendor to comply with such regulations;
D. WHEREAS, STAX Engineering, Inc (“ STAX”) provides certain capture and control services for vess els calling at California ports through the use of a mobile, barge -based system (“STAX Barge”) that captures and controls emissions from docked vessels; E. WHEREAS, Vendor and STAX entered into a Services Agreement with an Effective Date of ___________ ____, 2025 (“Services Agreement”) and a three (3) year initial term which will begin upon the delivery of a functioning STAX capture and control barge (the “Initial Term”) (as may be extended, the “ Term”), whereby Vendor, acting for the benefit of the Port of R ichmond and the Roll-on, Roll -off ocean carriers that call at Pt. Potrero Marine Terminal berths 5, 6, and 7 (“Ocean Carriers ”), contract ed with STAX to perform certain emissions capture and control services for such Ocean Carriers . Certain terms of the S ervices Agreement between Vendor and STAX may be revised following the Initial Term. The parties acknowledge that the lead time for delivery and operation of the STAX Barge is approximately six (6) months following the Effective Date of this Agreement; F. WHEREAS, the parties acknowledge and agree that Vendor is assuming significant business and financial risk in seeking to facilitate the Port and Ocean Carriers’ compliance with the CARB regulations , including but not limited to any contractual liability to 2 000528\141187\MRE\48555080.1
STAX which arise from the Services Agreement due to a decrease in the volume of vehicles calling at the Port;
G. WHEREAS, as between the Port and Vendor, the Port shall be liable for any and all obligations and liabilities which arise from the CARB regulations; and H. WHEREAS, with this Second Amendment, Port and Vendor seek to confirm the parties’ respective obligations and responsibilities relating to the CARB regulations and the STAX Services Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
1. Berth for the STAX Barge. Throughout the Term of the Services Agreement between Vendor and STAX, as may be extended, Port shall provide exclusive berthing space for the STAX Barge (estimated to be approximately 130’ long) within Pt. Potrero Marine Terminal berths 5, 6, and 7, at the Port of Richmond. Port shall not charge Vendor or STAX any rent or other fees for the berth provided to the STAX Barge during the Term of the Services Agreement.
2. Authority to Charge Ocean Carriers. Port hereby grants Vendor authority to act as its billing agent and to charge and collect tariffs and fees from RORO Ocean Carriers at Pt. Potrero Marine Terminal berths 5, 6, and 7, on behalf of Port, the amount of which shall be determined in Vendor’s reasonable discretion, in exchange for STAX performing emission capture and control services on such ocean carrier vessels while calling at the Port of Richmond.
3. Relationship of the Parties . Notwithstanding that Vendor entered into a Services Agreement with STAX to facilitate certain emissions capture and control services, Port acknowledges and agrees that Vendor is acting as an independent administrator, for the benefit of the Port, with respect to the CARB regulations and Vendor shall not be held responsible or liable for compliance with the CARB regulations or any CARB penalties or fines arising from the CARB regulations. Nothing in this Agreement is intended nor should be construed to create a partnership, joint venture, or employer-employee relationship between Vendor and Port. As it relates to the CARB regulations imposed on the Port and terminal operator, the Port shall be solely responsible and liable for compliance with the CARB regulations, including any reporting requirements, and any CARB penalties or fines arising from the CARB regulations. In recognition of Vendor’s responsibilities with respect to administrative reporting activity at the Port, Vendor shall cooperate in such reporting.
4. Port’s Indemnity of Vendor. Port shall indemnify, defend, protect and hold Vendor and its agents, employees and contractors harmless from and against any and all liens, c laims, losses, liabilities, damages, fines, costs, expenses, causes of action and expenses (including reasonable attorneys’ fees and court costs) arising out of the CARB regulations.
5. Vendor’s Indemnity of Port. Vendor shall indemnify, defend, protect and hold Port and its agents, employees and contractors harmless from and against any and all liens, claims, losses, liabilities, damages, costs, and expenses, causes of action and expenses (including reasonable attorneys’ fees and court costs) arising out the contractual obligations set forth in the Services 3 000528\141187\MRE\48555080.1
Agreement between Vendor and STAX, except to the extent of Port’s Funding Commitments under Section 6 of this Agreement.
6. Funding Commitments by Vendor and Port . Vendor and Port shall make the following payments to STAX (collectively the payments described in Sections 6(a) and (b) shall be referred to as the “Funding Commitments”):
(a) Within thirty (30) days of being notified of substantial completion of the STAX Barge and delivery to the Port of Richmond (“Delivery of the Barge”), Vender and Port shall each make payment to STAX i n the amount of One Hundred Twenty Five Thousand and No/100 Dollars ($125,000.00) (collectively $250,000.00 between Vendor and Port ), such payments to be applied to the Environmental Service Fees provided for in the Services Agreement; and
(b) On the one (1) year anniversary of the Delivery of the Barge , Vendor and Port shall each make payment to STAX in the amount of One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00) (collectively $250,000.00 between Vendor and Port), such payments to be applie d to the Environmental Service Fees provided for in the Services Agreement.
7. Tariff Revenues . Vendor shall invoice its customers (or customer’s ocean carriers) for the CARB regulation services ( such tariffs, fees and charges being referred to as the “Tariff Revenue ”). The Tariff Revenue shall also include without limitation any fees and charges established by contract rather than tariff, including any Environmental Service Fees and surcharges. Ocean Carriers shall be directly responsible to STAX for the cost and administration to position the STAX Barge for service, including any tug or towage fees. Vendor shall exercise commercially reasonable efforts to collect the Tariff Revenue generated, provided that Vendor does not guarantee the collection of the Tariff Revenue.
8. Tariff Charges . The following charges shall constitute the tariff (“ Tariff”) for such services provided for herein:
(a) Per Unit Charge . As of the date that the STAX Barge is put in service to perform carbon capture services , Vendor shall impo se a per unit charge (“Per Unit Charge”) to customers or ocean carriers equal to Fifty Two and No/100 Dollars ($52.00) per unit, such charge being subject to annual adjustment on each anniversary of the Effective Date to reflect any increase in the Consume r Price Index for All Urban Customers -Western Region All Items, 1982-84=100 published by the Bureau of Labor Statistics of the United States Department of Labor; provided, in no event shall any adjustment result in an reduction to the Per Unit Charge. Note: there is a minimum charge of $ 3,750 per hour , times the number of Hours at Berth. Hours at Berth will be calculated based upon first line ashore to let go of last line.
9. Tariff Reserves. The difference between (i) the Tariff Revenue, and (ii) the sum of the Vendor’s third party costs and expenses to manage, impose and collect such Tariff Revenue, to include payment to STAX for its services, and an administrative fee equal to two percent (2%) of the total Tariff Revenue (“Administrative Fee”) , shall be c onsidered “ Tariff Profits.” The Tariff Profits, if any, for the first and second Service Year s (as defined in the Service Agreement) of the Initial Term of the Service Agreement with STAX shall be held by 4 000528\141187\MRE\48555080.1
Vendor as reserves to pay for deficits or shortfalls, if any, until the Guaranteed Service Hours (as defined in the Service Agreement) in the third Service Year are fulfilled and paid (“Fulfillment of Guaranteed Service Hours”).
10. Administration, Collection and Distribution of Tariff Revenue. Tariffs shall be administered on a monthly basis during the Term of the Services Agreement with STAX .
Vendor shall, on or before the fifteenth (15 th) day following the close of each calendar month, deliver to Port a written statement itemizing the total Tariff Revenue collected for such month and the disbursement of any such collected amounts . Subject to the Tariff Reserves detailed in Section 9 of this Agreement, Vendor shall, on or before the fifteenth (15 th) day following the close of each calendar month, apply and disburse any Tariff Revenue actually collected by Vendor during such month.
11. Distribution of Tariff Profits. Subject to the Tariff Reserves detailed in Section 9 this Agreement, upon the Fulfillment of Guaranteed Service Hours, the payment of Tariff Profits shall be split equally (50% each) as between Vendor and Port until the parties’ total Funding Commitments ($250,000 for Vendor and $250,000 for Port) are repaid. After the Funding Commitments have been repaid to the parties and in light of the business and financial risk that Vendor is assuming in an effort to facilitate the Port’s and Ocean Carriers’ calling at the Port of Richmond compliance with the CARB regulations , any remaining and futu re Tariff Profits during the Initial Term of the Services Agreement shall distributed as follows: five percent (5%) to the Port; and ninety-five percent (95%) to Vendor.
12. Change in Law . In the event that any law or regulation enacted, promulgated or amended after the date of the Agreement or any interpretation of law or regulation by a court or regulatory authority of competent jurisdiction after the date of the Amendment (collectively “Change in Law ”) renders any provision of th is Amendment illegal or un enforceable or materially affects the ability of either party to perform its obligations under th is Amendment, then either party may request renegotiation of the applicable terms of this Amendment by written notice to the other. Both parties agree to negotiate in good faith an amendment that preserves the original reasonable expectation of the parties to the extent possible and in a manner consistent with the Change in Law.
13. Repeal of CARB regulations . In the event that the CARB regulations are repealed, revised or eliminated such that STAX services are no longer required under the law, Vendor may continue to charge and collect Tariff Revenues from its customers and ocean carriers in order to reimburse Vendor for its remaining obligation , as such obligation applies to Vendor in its Services Agreement with STAX.
14. Mutual Cooperation. Each party, upon request and without liability or expense except as otherwise provided herein, will reasonably cooperate with and assist the other as may be necessary for the requesting party to carry out the purposes of this Amendment.
15. Conflict. This Second Amendment is and shall be construed as a part of the Agreement. In case of any inconsistency between this Second Amendment and the Agreement, the provisions containing such inconsistency shall first be reconciled with one another to the maximum extent possible, and then to the extent of any remaining inconsistenc y, the terms of this Second Amendment shall be controlling.
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16. Force and Effect . Except as set forth in this Second Amendment, the terms and conditions of the Agreement shall remain unchanged and in full force and effect.
17. Ratification; Governing Law . The parties acknowledge that the provisions of the Agreement are hereby republished and ratified, and shall remain in full force and effect.
18. Counterparts; Facsimile; Authority. This Second Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Second Amendment by facsimile or PDF transmission shall be as effective as delivery of a m anually executed counterpart. Each natural person who is executing this Second Amendment on behalf of the parties hereby represents and warrants that he or she has the full power and authority to execute this Second Amendment on behalf his or her respective party.
[signatures and acknowledgments to follow]
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written.
PORT OF RICHMOND,
a California municipal corporation
By: _______________________________
Executive Director
Charles Gerard
Reviewed by: ATTEST:
__________________________ ________________________________ Port Attorney City Clerk
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On this ______ day of ____________, 2025, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Charles Gerard, known to be the Executive Director of the Port of Richmond , the municipal corporation that executed the foregoing instrument, and acknowledged the instrument to be the free and voluntary act and deed of that company for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute the instrument on behalf of the company.
WITNESS my hand and official seal hereto affixed the day and year first above written.
Signature
Printed Name:
NOTARY PUBLIC in and for the
State of California residing at
My Commission Expires:
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TRANSLOGIX, L.L.C.,
a Washington limited liability company
By: _______________________________
Ben Seher
Delegate of Manager
ATTEST:
______________________________
Secretary
STATE OF WASHINGTON )
) ss.
COUNTY OF PIERCE )
On this ______ day of ____________, 2025, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared ________________, known to be the delegate of the manager of TRANSLOGIX, L.L. C., the limited liability company that executed the foregoing instrument, and acknowledged the instrument to be the free and voluntary act and deed of that company for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute the instrument on behalf of the company.
WITNESS my hand and official seal hereto affixed the day and year first above written.
Signature
Printed Name:
NOTARY PUBLIC in and for the
State of Washington residing at
My Commission Expires: