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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 Agreement (“Lease”) is made and entered into on this ____ day of ________, 2026 (“Lease Date”), by and between the SURPLUS PROPERTY AUTHORITY OF THE CITY OF RICHMOND, public body corporate and politic (“Landlord”) and STAX ENGINEERING, LLC (“Tenant”).
RECITALS:
A. Landlord owns that certain port real property located at Port Richmond, Point Potrero Marine 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 water slip known as “Basin No. 4” (the “Slip”), together with the entire pier adjacent to Basin No. 4; (2) the adjacent building structure (the “Office”); and (3) the adjacent parking area (the “Parking Area”).
C. Pursuant to the terms 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 Lease Premises and determined that the Lease Premises are in good order, repair, and condition and suitable for the uses authorized by this Lease and Landlord makes no 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:
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(a) Property History. The Premises are one (1) of the four (4) shipyards developed by Henry J Kaiser 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 vessel storage. The existing facility has received minimal maintenance since construction in the 1940’s and that there may be debris at the bottom of the basin.
Tenant will be solely responsible for repairs and maintenance pursuant to Section 6. (b) Asbestos Notification for Commercial Property Constructed Before 1979.
Because of their age, the preexisting improvements, such as concrete, within the Premises may contain asbestos-containing materials (“ACMs”). If ACMs are likely to be disturbed in the course of developing any alterations, additions or improvements, Tenant shall encapsulate or remove the ACMs in accordance with an asbestosremoval plan reasonably approved by Landlord and otherwise in accordance with all applicable Hazardous Materials 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 certification to Landlord. Landlord has no specific knowledge of the presence of LBP in or about the Premises.
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 the Richmond Municipal Code.
1.5. Reservations. Landlord reserves to itself and the right to grant to others in the future nonexclusive utility easements (including easements for construction, maintenance, repair, replacement and reconstruction of utility easements) over, under, across or on the Premises, provided Landlord shall use reasonable efforts to provide that such work occurring and any easement is located such that it will 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 disability access inspection certificate, as described in California Civil Code Section 55.53(e) and therefore, pursuant to California Civil Code Section 1938, Landlord provides the following statutory notice to Tenant:
“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable 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 may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of constructionrelated accessibility standards within the premises.”
2. TERM; OPTION TO EXTEND.
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2.1. Term. This Lease shall be effective as of _______________ ___, 2026 (“Effective Date”) and terminate _________________________ thereafter (“Initial Term”). “Term” shall mean the Initial Term as may be extended if an Extension Option is exercised.
2.2. Options to Extend. Provided Tenant has not been 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) years (“Extension Period”) provided Tenant exercises the Extension Option in writing delivered to Landlord not less than six (6) months, but no more than nine (9) months, prior to the expiration of the existing Term. If Tenant fails to exercise the Extension Option in the time and manner specified, the 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 the first year of the extended Term and for each year thereafter. Each Extension Option is personal to the original Tenant under this Lease and may not be transferred or assigned without Landlord’s approval in Landlord’s sole and absolute discretion. If the first Extension Option is not exercised in the time and manner specified, the second Extension Option shall also automatically terminate.
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 provided 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 days 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 Records”) pursuant to Government Code Section 37393. Upon termination or exercise of any rights under this Lease or any amendment of this Lease, the parties shall record a copy thereof in the Official Records. Upon termination of the Lease, Tenant shall promptly execute, acknowledge and deliver to Landlord any documents 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.
3.2.1. Monthly Base Rent. The initial Annual Base Rent shall be _________________ payable in equal monthly payments of ______________ (“Monthly Base Rent”) payable in advance on the first (1st) day of each month.
3.2.2. Annual Increase. The Monthly Base Rent will be increased on each anniversary of the Rent Commencement 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 preceding the year in which the Base Rent increase occurs and the same month for the year in which the Base Rent increase occurs (“CPI Adjustment”). By way of example only, if the Rent 01337.0020/954454.1 4
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 calculated by determining the change in the CPI between September 2024 and September 2023. For purposes of this Lease, “CPI” means the Consumer Price Index – All Items for All Urban Customers, Western Region area published by the United States Department of Labor, Bureau of Labor Statistics (or a reasonably equivalent index if such index is discontinued). Notwithstanding the CPI Adjustment, 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 inadvertently fail to apply a CPI Adjustment on an anniversary of the Effective Date, then that failure will not be deemed a waiver by Landlord of that particular CPI Adjustment of Base Rent, but rather, that CPI Adjustment will be added to any subsequent CPI Adjustment(s) with appropriate back charges as necessary to capture the inadvertent shortage.
However, no late charges 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 any period during the Term which is less than one (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 America, 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 (30) days following the date on which it was due will bear interest starting on the thirty-first (31st) day after it was due. The interest rate shall be ten percent (10%) per annum (“Interest”), but will not exceed the maximum rate allowed by law. Interest is payable in addition to the late charge in Section 3.5 but shall not accrue on the late charge.
3.5. Late Charge. If any Rent that is not received by Landlord by the due date, Tenant shall pay to Landlord an additional sum of five percent (5%) of the overdue amount as a late charge, which is agreed to represent a reasonable estimate of the costs incurred by Landlord on account of such delinquency. Acceptance of a late charge shall not constitute a waiver of Tenant's default with respect to the overdue amount or prevent Landlord from exercising any of the other rights and remedies available to Landlord.
4. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deliver to Landlord the sum of __________________________ to be held during the entire Lease Term as security for the faithful performance by Tenant of all of its obligations under this Lease (“Security Deposit”).
If Tenant defaults with respect to any provisions 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 other sum in default and Tenant shall, upon demand therefor, restore the Security Deposit to its original amount. Any unapplied portion of the Security Deposit shall be returned to Tenant within sixty (60) days following the termination of this Lease. Tenant shall not be entitled to any interest on the Security Deposit and Landlord shall have the right to commingle the Security Deposit with Landlord's other funds. Tenant hereby waives 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 must refund a security deposit under a lease, and/or (ii) provide that a 01337.0020/954454.1 5
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 Premises, 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 caused by Tenant's default of this Lease, including, but not limited to, all 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. Without prior written approval by Landlord, Tenant shall only use the Lease Premises for its operation of a financially sustainable maritime business substantially in accordance with the operations described in Exhibit C. Tenant shall conduct its operations in a manner that supports compliance with applicable air quality and maritime environmental regulations, reduces emissions from vessels and Port-related operations, maintains the Lease Premises in a safe and professional condition, and generates fair and reasonable economic value for the Port. 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 purpose without the prior written consent of Landlord. Tenant shall operate its business in an efficient, businesslike 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 sole cost and expense, promptly comply with all laws, ordinances, rules, regulations 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 occupancy of the Premises now in effect or that may hereafter come into effect including, but not limited to, (a) accessibility and use by individuals with disabilities, (b) environmental conditions 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 done in or about the Lease Premises which will in any way obstruct or interfere with the rights of other parties 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, unlawful or objectionable purpose. Tenant shall not cause, maintain or permit any nuisance in or about the Lease Premises, or commit or suffer to be committed any waste in or upon the Lease Premises. Tenant shall not do or permit anything to be done in or about the Lease Premises, nor bring or keep anything therein, which will in any way increase the existing rate of or affect any fire or other insurance upon the Lease Premises, or part thereof, or the contents of the Lease Premises, or cause cancellation of any insurance policy covering the Lease Premises, or part thereof, or its contents.
Tenant shall not engage in activities (including, without limitation, spray painting, sandblasting, blowing of stacks, funnels or exhaust pipes, or other releases of particulate 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 property owned or possessed by any tenant or its customers or which otherwise may materially interfere with the tenant’s or customer’s operations in the Port of Richmond. Tenant shall conduct its operations in such a manner that it does not create a significant risk of injury or damage to the auto processing facility operated by Auto Warehousing Co. (AWC) at the Pt. Potrero Marine Terminal (Auto Processing Facility) or adversely impact 01337.0020/954454.1 6
AWC’s or AWC’s customers’ use of the Auto Processing Facility or its operations. This Section
2.02(d) is intended to benefit (and may be enforced by) AWC and AWC’s customers.
5.4. Permits and Licenses. Tenant shall obtain, comply with, and keep in force at all times, at Tenant’s sole cost and expense, any and all required governmental licenses, approvals and permits needed for the proper and lawful conduct of Tenant’s use of the Leased Premises (which may include BCDC) (collectively, “Permits”). Tenant shall provide copies of all Permits to Landlord within ten (10) days after Landlord’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 the bottom of the basin. Upon the expiration or sooner termination of this Lease, Tenant shall surrender the Lease Premises in good condition and repair, reasonable wear and tear excepted. Should Tenant fail to vacate the Lease Premises in a clean and undamaged condition, Landlord may, in its sole discretion, arrange for the cleaning and/or repair of the Lease Premises, the cost of which may be deducted from the 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 reasonable complaints and/or comments of Landlord 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.
7. ALTERATIONS AND ADDITIONS. 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 thereof without the prior written consent of Landlord. Any alterations, additions or improvements in, to or about the Lease Premises shall become a part of the real property, belong to Landlord and be surrendered with the Lease Premises without compensation to Tenant.
8. REQUIRED IMPROVEMENTS.
8.1. Landlord Improvements. Landlord is not obligated to make any improvements of any kind to all or any portion the Lease Premises.
8.2. Tenant Improvements.
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8.2.1. Initial Required Work. Promptly after the Effective Date, Tenant shall, at Tenant’s sole cost and expense and in compliance with all laws, regulations, ordinances, etc., including, but not limited to, the Richmond Municipal Code (collectively “Applicable Laws”), 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 Improvements, Tenant shall not make or allow to be made any alterations or additions 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, rules and regulations; (ii) will not interfere with the Port of Richmond future use 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 given 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 copies of the approved plans and specifications, prior to commencement of the work thereon; and (iii) Tenant’s compliance with the conditions of all applicable permits and approvals 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 Landlord 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 contractors and suppliers all amounts 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, additions or improvements made to the Premises by Tenant shall become the property of Landlord upon installation and shall be surrendered to Landlord without compensation to Tenant upon the termination of this Lease by lapse of time or otherwise unless Landlord conditioned its approval 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 resulting 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 contrary 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 expense all damage caused to the Premises by removal of Tenant's movable equipment, personal property or furniture and such other alterations, additions and improvements as Tenant 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 good and workmanlike manner with new, good 01337.0020/954454.1 8
and sufficient materials; (ii) by a licensed bonded general contractor licensed in the State of California; and (iii) in compliance with all Applicable Laws, including, without limitation, Labor Code 1720 et seq 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, including, but not limited to, signage in windows, without Landlord’s prior written consent which may specify 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 Sign and comply with all Applicable Laws. Tenant shall maintain Approved Signs in good condition at all times at Tenant’s sole cost and expense. If Tenant abandons or vacates the Lease Premises, 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 obligated to provide utilities to the Premises. Tenant shall comply with Section 8.2.1 to install separate meters 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 permit any Hazardous Material (as defined in below) to be brought, kept, used, generated, released or disposed in, on, under or about the Lease Premises by Tenant, its agents, employees, contractors or invitees; provided, however, that Tenant may use, store and dispose of, in accordance with applicable Laws, limited quantities of standard office and janitorial supplies, but only to the extent reasonably necessary for Tenant's operations 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 obligations stated in the preceding sentence, and hereby agrees to defend and hold Landlord harmless from and against any and all claims, liability, losses, damages, costs and/or expenses (including, without limitation, diminution in value of the Lease Premises, or any portion thereof, and sums paid in settlement of claims, fines, penalties, attorneys' fees, consultants' fees and experts' fees) that arise during or after the Term as a result of such breach. This indemnification of Landlord by Tenant includes, without limitation, death of or injury to person, damage to any property or the environment and costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state or local governmental agency or political subdivision, including the City of Richmond, because of any Hazardous Material present in, on, under or about the Premises (including soil and ground water contamination) that results from such a breach. Without limiting the foregoing, if the presence of any Hazardous Material in, on, under or about 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 same to the condition existing prior to the introduction of such Hazardous Material; provided that Landlord's approval of such actions, and the contractors to be used by Tenant in connection therewith, shall first be obtained. This indemnification of Landlord by Tenant shall survive the expiration or sooner termination of this Lease. Notwithstanding the foregoing, in no 01337.0020/954454.1 9
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 California or the United States government. The term "Hazardous Material" includes, without limitation, any substance, material or waste that is (i) defined as a "hazardous waste" or similar term under the laws of the jurisdiction where the Premises is located; (ii) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317); (iii) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource, Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903); (iv) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (v) hydrocarbons, petroleum, gasoline, crude oil or any products, by-products or fractions thereof; or (vi) asbestos in any form or condition. The term "Laws" means any applicable federal, state or local laws, ordinances, rules or regulations relating to any Hazardous Material affecting the Premises, including, without limitation, the specific laws, ordinances and regulations referred to above. References to specific Laws shall also be references to any amendments thereto and to any applicable successor Laws.
11.2. Safety Precautions and Storm Water Pollution Control. In connection with Tenant’s use and occupancy of the Lease Premises, Tenant shall take measures to minimize the potential for Hazardous Materials or other pollutants to enter the San Francisco Bay and/or Port of Richmond’s storm water drainage system. The targeted pollutants include Hazardous Materials and floatable materials, oxygen demanding substances (e.g. plant debris, street litter and organic substances), bacteria and viruses, sediment, and nutrients (e.g. nitrogen and phosphorous).
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:
(1) Preventing fuel spills and leaks and reducing the impact to storm water by not topping off fuel tanks; using secondary 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 requirements regarding underground storage tanks or installing above ground tanks; fueling mobile equipment at designated fueling areas; and designing fueling areas to prevent the run-on of storm water and the run-off of spills. “Secondary containment” means a back-up system that 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 maintenance and repair by containing waste oil under 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 large storms; not pouring materials down storm drains; dry sweeping instead 01337.0020/954454.1 10
of hosing down work areas; storing idle equipment under cover, switching to nontoxic chemicals for maintenance when possible; cleaning small spills with rags and larger spills with absorbent materials; and minimizing the use of solvents. (3) Preventing the discharge of pollutants to storm water from outdoor equipment and operations by reducing the amount of waste created; enclosing or covering all or some of the equipment; and installing secondary containment. (4) Preventing the discharge of pollutants 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 permitting any wash water to enter the storm drains.
(5) Preventing the discharge of pollutants to storm water from outdoor loading/unloading of materials by parking tank trucks or delivery vehicles 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 pollutants to storm water from outdoor storage areas by installing appropriate safeguards against accidental release; installing secondary containment where reasonably required; conducting regular inspections.
(7) Protecting materials from rainfall run-on, run-off and wind dispersal by storing materials indoors; complying with specific federal, state, regional and local standards regarding storage of Hazardous Material; enclosing or covering materials; periodically sweeping parking lots or other surfaces near bulk material storage areas to remove debris blown or washed from storage areas; and installing pellet traps at storm water discharge points where plastic pellets are loaded and unloaded.
(8) Preventing the discharge of pollutants to storm water from waste handling and disposal by tracking waste generation, storage, and disposal; reducing waste generation and disposal through source reductions, reuse and recycling; preventing run-on and run-off from waste management areas; and covering dumpsters and garbage cans during the rainy season.
(9) Preventing the discharge of pollutants to storm water from contaminated or erodible surface areas by leaving as much vegetation on-site as reasonably possible; minimizing soil exposure; stabilizing exposed soils; and preventing storm water run-on and run-off.
(10) Preventing the discharge of pollutants to storm water from buildings and grounds maintenance by washing and cleaning up with as little water as reasonably possible; preventing and cleaning up spills immediately; 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 containment and erosion controls; and enclosing or covering building material storage areas. (12) Preventing the discharge of pollutants to storm water and receiving waters from over water activities by minimizing over water maintenance; limiting over water hull surface maintenance to sanding and minor painting; not spray painting vessels while they are on the water; avoid washing down boats with soap and detergent; using phosphate-free and biodegradable detergent for hull washing; 01337.0020/954454.1 11
keeping organic and inorganic wastes out of the water; and cleaning up spills and wastes immediately. “Over water activities” refers to activities undertaken by Tenant on the waters of San Francisco Bay or waters flowing into San Francisco Bay.
(13) Preventing the discharge of pollutants to storm water by using ground cloths when painting boats on land; using tarps, plastic sheeting, or other material to contain spray paint and blasting sand; properly disposing of surface paint chips, used blasting sand, residual paints, and other material; and sweeping any drydocks before flooding them.
11.3. Right of Entry. Notwithstanding Section 15, Landlord, its employees, agents and consultants, shall have the right to enter the Premises at any time in order to conduct periodic environmental inspections and tests to determine whether any Hazardous Materials are present. The costs and expenses of such inspections shall be paid by Landlord unless a default or breach of this Lease, violation of Laws or contamination caused or permitted by Tenant is found to exist. In such event, Tenant shall reimburse Landlord upon demand, as additional rent, for the reasonable costs and expenses of such inspections.
11.4. Notice to Landlord. Tenant shall promptly notify Landlord in writing of: (i) any enforcement, clean-up, removal or other governmental or regulatory action instituted or threatened regarding the Premises pursuant to any Laws; (ii) any claim made or threatened by any person 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 out of or in connection with any Hazardous Material in or removed from the Premises, including any 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 part thereof, any mechanic’s, materialman’s, contractor’s or subcontractor’s liens arising from any claim for any work of construction, repair, restoration, replacement or improvement of or to the Lease Premises or any other claim or demand how ever the same may arise, and Tenant shall pay or cause to be paid any and all such claims or 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 hereby given to Tenant pursuant to California Revenue and Taxation Code Section 107.6 and Health and Safety Code Section 33673 that the interest of Tenant created in the Lease Premises pursuant to this Lease is subject to real 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 leasehold is subject to possessory interest taxes as assessed by the County of Contra Costa. 01337.0020/954454.1 12
Tenant shall indemnify, defend and hold harmless Landlord against any and all such taxes, fees, penalties or interest assessed, or imposed against Landlord hereunder. In the event Tenant fails to timely pay any tax, assessment, fee, penalty or interest, Landlord, at its 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 solely responsible for the payment of all taxes attributable 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 any part thereof, after the expiration of the Term, such occupancy shall be a tenancy from month-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 the Term, cancelable upon 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 same complies with each and every term and condition of this Lease and with all applicable municipal, county, state and federal laws, rules, ordinances and regulations relating to building occupancy and the conduct of Tenant’s business. Tenant waives any claim for damages or for any injury or inconvenience to or interference with Tenant’s business, any loss of occupancy or quiet enjoyment of the Lease Premises, and any loss occasioned thereby. Landlord shall have the right to use any and all means which Landlord may deem proper 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 unlawful entry into, or a detainer of, the Lease Premises, or an eviction of Tenant from the Lease Premises.
16. DAMAGE. In the event of a fire or other casualty in the Premises, this Lease shall terminate effective immediately. The proceeds from any insurance paid by reason of damage to or destruction of the Premises or any part thereof insured by Landlord shall belong to and be paid to Landlord. The proceeds from any insurance paid by reason of damage to or destruction of the Premises or any part thereof insured by Tenant shall belong to and be paid to Tenant. Landlord and Tenant agree that the terms of this Lease shall govern the effect of any damage to or destruction of the Premises with respect to the termination 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 any portion of the Premises 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 date of taking. All proceeds from any condemnation of the Premises shall belong and be paid to Landlord; provided that Tenant shall be entitled to any compensation separately awarded to Tenant for loss of Tenant's trade fixtures, if any and relocation costs.
18. ESTOPPEL CERTIFICATE. Tenant shall, at any time 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 unmodified 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 01337.0020/954454.1 13
defaults on the part of Landlord hereunder, or specifying such defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed. Any such statement may be relied upon by any prospective purchaser or encumbrancer of all or any portion of which the Lease Premises are a part.
19. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease, in whole or in part, nor sublet all or any part of the Premises, without the prior written consent of Landlord which consent may be withheld by Landlord in its sole and absolute discretion. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. Irrespective 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 and conditions of this Lease. A transfer of any ownership interest in the entity comprising Tenant shall be deemed 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 reimburse Landlord for, any loss, cost, expense, liability, or damages of every kind or nature, including but not limited to injury to or death of any person or destruction of the Lease Premises in connection with or related to, the use by Tenant or any third party (including officers, directors, employees and invitees) of the Lease Premises or any facilities located thereon in connection with the business being conducted 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 or negligence of Tenant, or any officer, agent, employee, guest, or invitee of Tenant, regardless of whether such intentional misconduct or negligence was active or passive.
In the event of the occurrence of any event which is an indemnifiable event pursuant to this Section, Tenant shall notify Landlord 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 obtain the prior written approval of Landlord before entering into any settlement, adjustment or compromise of such claim. Tenant shall reimburse Landlord or any third party (including officers, directors, and employees of Landlord) for any legal expenses and costs incurred in connection with or in enforcing the indemnity herein provided. All indemnification obligations hereunder shall survive the expiration or termination of this Lease. Notwithstanding the generality of the foregoing, Tenant’s obligation to indemnify Landlord shall not extend to liability solely caused by the gross negligence or willful misconduct of Landlord, its officers, 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 to Tenant, Landlord may secure and maintain policies of insurance for the Lease Premises covering loss of or damage to the Lease Premises with loss payable to Landlord. Landlord shall not be obligated to obtain insurance for any of Tenant's trade fixtures, equipment, furnishings, machinery or other property. Such policies may provide protection against fire and extended coverage perils and such additional perils as Landlord deems suitable, and with such 01337.0020/954454.1 14
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, at its own cost 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 perils for which it has agreed to provide insurance against, Tenant shall look solely to its insurer for recovery. Tenant hereby grants to Landlord, on behalf of its insurers, a waiver of any right to subrogation which any such insurer of Tenant 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 maintain insurance required by this Lease, or fails or refuses to furnish 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 procure and maintain such insurance. The premiums paid by Landlord shall be treated as added Rent due from Tenant with interest at the rate of ten percent (10%) pursuant to Section 3.4. Landlord shall give prompt notice of the payment of such premiums, stating the amounts paid and the names of the insurer or insurers, and interest shall run from the day of the notice.
Notwithstanding that Landlord may secure policies under this Section, the failure of Tenant to obtain and maintain insurance 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 Tenant to make any payment of Monthly Base Rent or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of three (3) days after written notice thereof by Landlord to Tenant.
b. A default under the Adjacent Property Lease.
c. The failure of Tenant to provide insurance in accordance with Section 24. d. Vacating or abandonment of the Lease Premises by Tenant without paying all Rent due under this Lease.
e. Assignment or subletting by Tenant without Landlord’s consent as required by Section 20.
f. A failure by Tenant to observe or perform any other covenants, conditions or provisions of this Lease to be observed or performed by Tenant, where such failure shall continue for a period of twenty (20) days after written notice thereof by Landlord to Tenant; provided, however, that if the nature of 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 01337.0020/954454.1 15
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 bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days); or the appointment of a trustee or a receiver to take possession of substantially all of Tenant’s assets located in or about the Lease Premises or of Tenant’s interest in this Lease, where possession is not restored to Tenant within thirty (30) days; 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 addition to any notice required under Section 1161 of the California Code of Civil Procedure.
25. REMEDIES ON TENANT’S DEFAULT. In the event of any such material default or breach by Tenant, Landlord may at any time thereafter and without notice or demand and, without limiting Landlord in the exercise of a right or remedy Landlord may have by reason of such default or breach:
a. Terminate Tenant’s right to possession of the Lease Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Lease Premises to Landlord. In such event, Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant’s default including, but not limited to, the cost of recovering possession of the Lease Premises, expenses of reletting, including necessary renovation and alteration of the Lease Premises, for reasonable attorneys’ fees and costs, any real estate commission actually paid, or the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent for the balance of the Term after the time of such award exceeds the amount of such rental loss for the same period that Tenant proves could be reasonably avoided. Unpaid installments of Rent or other sums shall 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) taking possession of the Lease Premises and recovering from Tenant the amount specified in this subparagraph, or (2) proceeding under the provisions of the following subparagraphs.
b. Maintain Tenant’s right to possession, in which case this Lease shall continue in effect whether or not Tenant shall be entitled 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 remedy now or hereafter available to Landlord under the laws or judicial decisions of the State of California. Furthermore, Tenant agrees that no election by Landlord as to any rights or remedies available hereunder or pursuant 01337.0020/954454.1 16
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 Landlord are cumulative and not alternative with all other rights and remedies at law or in equity to the fullest extent permitted by law.
e. Tenant waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or under any other present or future law in the event Tenant is evicted and Landlord takes possession of the Premises by reason of a default.
26. LANDLORD'S RIGHT TO PERFORM. Notwithstanding anything to the contrary set forth elsewhere in this Lease, in the event Tenant fails to perform any affirmative duty or obligation of Tenant under this Lease, then within five (5) business days after written notice to Tenant (and without notice in case of an emergency) Landlord may (but shall not be obligated to) perform such duty or obligation on Tenant's behalf, including, without limitation, the obtaining of insurance policies or governmental licenses, permits or approvals. Tenant shall reimburse Landlord upon demand for the reasonable costs and expenses of any such performance (including penalties, interest and attorneys' fees incurred in connection therewith). Such reasonable costs and expenses incurred by Landlord shall be deemed additional rent hereunder.
27. LANDLORD’S DEFAULT. A failure by Landlord to observe or perform any covenants, conditions or provisions of this Lease to be observed or performed by Landlord, where such failure shall continue for a period of thirty (30) days after written notice thereof by Tenant to Landlord; provided, however, that if the nature of the default involves such that more than thirty (30) days are reasonably required for its cure, then Landlord shall not be deemed to 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 the right to offset any amounts against Rent.
28. WAIVER. The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition on any subsequent breach of the same 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 waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, 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 Rent 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 control including, without limitation, any act of God, fire, 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 such 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.
01337.0020/954454.1 17
31. SALE OF PREMISES 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 in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale. The purchaser, at such sale or any subsequent sale of the Real Property, shall be deemed, without any further agreements between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out each and all of the covenants and obligations of Landlord under this Lease.
32. COMMISSION. Landlord and Tenant hereby warrant to each other that they have had no dealings with any real estate broker or agent in connection with the negotiation of this Lease, and that they know of no other real estate broker or agent who is entitled to a commission in connection with this Lease. Each party agrees to indemnify 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 without limitation reasonable attorneys' fees) with respect to any leasing commission or equivalent compensation alleged to be owing on account of any dealings with any real estate broker or agent, 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 and 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, certified mail, postage prepaid, return receipt 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 properly addressed, be deemed to have been given (a) as of the date so delivered under delivery methods (i) or (ii) above, or (b) three (3) business days after deposit into the U.S. Mail.
Tenant: STAX Engineer, LLC
215 W. Figueroa Street
Santa Barbara, CA 93101
Attn: Chief Executive Officer
With a copy to: _____________________
_____________________
_____________________
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
01337.0020/954454.1 18
35. ENTIRE AGREEMENT. This Lease contains the entire agreement between the parties.
No promise, representation, warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on his own examination of this Lease, the counsel of his 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 as if prepared by both parties. Headings used in this Lease are provided for convenience 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 the selection, discharge, supervision, or control of Tenant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Tenant shall perform all services required herein as an independent contractor with only such obligations as are consistent with that role. Tenant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Landlord. Landlord shall not in any way or for any purpose become or be deemed to be a partner 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 files suit upon the same, the prevailing party shall recover its reasonable 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 is filed or any suit that may be filed is pursued to decision or judgment.
The term "prevailing party" shall include, without limitation, a party who substantially obtains or defeats the relief sought, as the case may be, whether by judgment or the abandonment by the other party of its claim or defense; provided however, the parties may agree to compromise or settlement in writing, which compromise 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 computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys' fees reasonably incurred.
39. QUIET ENJOYMENT. Subject to Tenant’s payment of all Rent 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. 01337.0020/954454.1 19
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 any paragraph, section, sentence, clause, 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 competent jurisdiction to be illegal, null or void, against public policy, or otherwise unenforceable, the remaining paragraphs, sections, 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 writing and bear the signature of the duly authorized representatives of both parties.
45. COUNTERPARTS. This Lease may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall be deemed but one and the same instrument, and a facsimile copy of such execution shall be deemed an original.
46. NO ELECTRONIC EXECUTION. This Lease may not be executed electronically because it needs to be recorded and electronically 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]
01337.0020/954454.1 20
NOW, THEREFORE, the parties hereto have entered into the Lease as of the Lease Date.
TENANT: LANDLORD:
______________________
______________________
______________________
By: _______________________
Chief Executive Officer
By: _______________________
Secretary
SURPLUS PROPERTY AUTHORITY OF
THE CITY OF RICHMOND,
a public body corporate and politic
By: _____________________________
Shasa Curl, Executive Director
Dated: ________________, 2026
APPROVED AS TO FORM:
By:_____________________
Shannon Moore
Authority Counsel
01337.0020/954454.1
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
That certain real property in the City of Richmond, County of Contra Costa, State of California legally described as follows:
See attached.
01337.0020/954454.1
EXHIBIT B
DEPICTION OF LEASE PREMISES
See attached.
01337.0020/954454.1
EXHIBIT C
TENANT’S PROPOSAL AND FINANCIAL ATTESTATION
See attached.
01337.0020/954454.1
EXHIBIT D
TENANT INSURANCE REQUIREMENTS
See attached.
01337.0020/954454.1
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 acknowledged to me that 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 document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
01337.0020/954454.1
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 acknowledged to me that 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 document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.