Execution Copy
1 COMMERCIAL LEASE AGREEMENT
SPT ENERGY BASE HUB
1.30 Acres Vacant Land – 670 Iowa Avenue, Riverside, APN 247-150-007 This Commercial Lease Agreement (“Agreement” or “Lease”), is made and entered into as of __________________, ________ (“Effective Date” or “Lease Commencement Date”), by and between the CITY OF RIVERSIDE, a California charter city and municipal corporation, as Lessor (hereafter referred to as “Landlord”), and SPT ENERGY BASE HUB, a California corporation, as Lessee (hereafter referred to as “Tenant”). Landlord and Tenant are sometimes referred to in this Agreement individually as a “Party,” and collectively as “Parties.”
ARTICLE I
PROPERTY; EFFECTIVE DATE; TERM; RENT; USE; EXTENSIONS
1.1 Property. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, in accordance with the terms and conditions of this Agreement, certain vacant property described as
1.30 Acres Vacant Land – 670 Iowa Avenue, Riverside, California, Riverside County Assessor Parcel Number (“APN”) 247-150-007, and as described and depicted on Exhibit “A,” which is attached hereto and incorporated herein by reference (“Property”). If the street address, acreage or APN of the Property referenced in this section conflicts with the legal description of the Property set forth in Exhibit “A,” this Agreement shall not be invalid and the legal description set forth in Exhibit “A” shall control.
1.2 Effective Date. This Agreement shall be effective as of the Effective Date.
1.3 Term. The term of this Lease shall commence as of the Effective Date and expire as of the Lease Expiration Date, as defined below.
A. Inspection, Review and Approval. Within three (3) months from the Effective Date, Tenant, at its sole discretion, shall investigate, inspect, and review all information and matters relating to the Property, including, without limitation, condition of title, physical inspection, location, and availability of all utilities, environmental conditions, and concerns.
Tenant shall have the right to perform all necessary studies, including, but not limited to, traffic, environmental investigation, including phase 1 and phase 2, if necessary, soil and geological studies, and ALTA survey. Landlord, within five (5) days from the Effective Date, shall provide Tenant with all information, studies reports, and investigations relating to the Property that are in Landlord’s control or possession including surveys, environmental studies, and appraisals. If Landlord does not timely deliver such information, Tenant's review period will be reasonably extended by the corresponding period of delay, as agreed to by the parties in writing. If Tenant is unsatisfied with its review, inspection, or investigation of the Property, Tenant shall submit a written notice of termination to Landlord and this Lease shall terminate as provided in Section
1.3.C below.
2 B. Entitlements. Within four (4) months from the Effective Date, Tenant shall submit all necessary applications to the appropriate Landlord and County agencies for the construction of Tenant’s intended facilities and improvements. Tenant shall have six (6) months from the Effective Date (“Entitlement Approval Date”) to obtain and secure all permits Tenant deems necessary for its intended use of the Property. If Tenant is unable to secure all necessary permits for Tenant’s intended use at the Property before the expiration of the Entitlement Approval Date, Tenant may, at its election, terminate this Lease or extend the Entitlement Approval Date for an additional three (3) months (“Entitlement Approval Extension Date”). If Tenant is unable to secure all necessary permits for Tenant’s intended use at the Property before the expiration of the Entitlement Approval Extension Date, Tenant may, at its election, terminate this Lease or, upon a showing that Tenant has diligently and in good faith pursued such permits, extend the Entitlement Approval Date for one additional period of three (3) months. If Tenant is thereafter unable to secure all necessary permits due to delays caused by Landlord, governmental, or regulatory review (including review under the California Environmental Quality Act), public utilities, or other causes outside Tenant’s reasonable control, Tenant may request a further extension to the Entitlement Approval Date for a period equal to the period of such delay, which extension the Landlord shall not unreasonably withhold, condition, or delay.
C. Rent Commencement and Termination. If the Lease is terminated as a result of Tenant’s disapproval, as set forth in Section 1.3.A, or Tenant’s inability to obtain necessary permits, as set forth in Section 1.3.B, then upon delivery of the notice from Tenant, this Lease shall terminate and neither party shall have any further obligation under the Lease. If the Lease is not otherwise terminated, then the Base Rent, as defined below, for the Lease shall commence twelve (12) months after the date of the issuance of the building permit by the appropriate governmental agency or fifteen (15) months after the Effective Date, whichever is earlier (“Rent Commencement Date”). The Lease shall expire as of the expiration of the tenth (10th) full calendar year following the Effective Date (the “Lease Expiration Date”). The Rent Commencement Date and Lease Expiration Date shall be stated in the Acceptance Memorandum, attached hereto as Exhibit “B” (the “Acceptance Memorandum”) and, when signed by the parties, the Acceptance Memorandum shall be attached to and incorporated in this Agreement.
1.4 Base Rent. Tenant shall pay to Landlord the following sums per month (“Base Rent”), beginning on the Rent Commencement Date, as Base Rent for the Property. Said rental amount shall be due to Landlord on or before the first day of each successive calendar month during the Term. If the Rent Commencement Date falls on a day other than the first day of a calendar month or ends on a day other than the last day of a calendar month, the Base Rent for the first and last fractional months of the Term of this Lease shall be appropriately pro-rated.
From the Effective Date to Rent Commencement Date, as defined herein, Tenant shall pay no rent.
Upon the Rent Commencement Date, Tenant shall pay Landlord a Base Rent of Eleven Thousand Three Hundred Sixty-One Dollars and Sixty Cents ($11,361.60), per month as adjusted each year upon the anniversary date of the Rent Commencement Date to reflect the percentage increase, if any, in the Consumer Price Index for All Urban Consumers (CPI-U) for the Riverside-San Bernardino-Ontario Standard Metropolitan Statistical Area (“Index”) published by the Bureau of Labor Statistics of the United States Department of Labor for most recent twelve (12)-month published index, based upon the corresponding increase, if any, in the Index as it stands on May 3 of that year over the Index as it stood on May of the prior year, or two percent (2%), whichever is greater, provided that the annual increase in Base Rent shall in no event exceed three percent (3%) over the Base Rent of the preceding year.
The monthly rental shall be payable in advance on or before the first (1st) day of each month and shall be paid by check made payable to the "City of Riverside" and sent to the Revenue Division, City of Riverside, 3900 Main Street, Riverside, California 92522.
1.5 Permitted Use. Tenant shall use the Property primarily for the lawful purpose of:
(a) Hydrogen production, compression, storage, and dispensing facilities; (b) Hydrogen fueling services for passenger vehicles, commercial vehicles, logistics fleets, transit fleets, municipal fleets, and other transportation applications; (c) Electric vehicle fast-charging infrastructure and related equipment; (d) Testing, validation, and demonstration activities related to hydrogen and clean transportation technologies;
(e) Workforce training, educational programs, public outreach, and technology demonstration activities related to hydrogen and clean energy transportation infrastructure; (f) Administrative offices, equipment enclosures, utility infrastructure, parking areas, and other ancillary improvements necessary to support site operations; (g) Other related facilities associated with hydrogen production, storage, fueling, and EV charging, as approved by Landlord.
1.6 Extension Options. Tenant shall have one (1) five (5)-year option (“Lease Extension”) to extend the term of the Lease. Tenant may exercise such Lease Extension by providing notice to Landlord at least six (6) months prior to expiration of the then-current term, but no earlier than twelve (12) months’ prior notice to expiration of the then-current term. Tenant shall have no right to exercise such Lease Extension, notwithstanding any provision in the grant of Lease Extension to the contrary: (i) during the period commencing with the delivery of any notice of Default under Section 12.1 and continuing until the noticed Default is cured; or (ii) during the period of time any monetary obligation due Landlord from Tenant is due but unpaid (without regard to whether notice thereof is given to Tenant); or (iii) during the continuance of any material, uncured breach by Tenant of this Lease beyond any applicable notice and cure period. If Tenant has been granted a cure period under the terms of this Lease or by the Landlord, in writing, the time within which Tenant may exercise such Lease Extension shall be tolled or otherwise extended until expiration of the applicable cure period, which shall not exceed one (1) year.
1.7 Right of First Refusal for Lease. Upon expiration of the Term, as extended, Landlord hereby grants Tenant a limited right of first refusal to further lease the Property, as further defined herein. The right of first refusal to Tenant shall not accrue to Tenant until the Landlord has complied with the disposition procedures set forth in Government Code sections 54222, et seq., by contacting the appropriate governmental agencies (local, county, state, and regional) as to their interest in leasing the Property for affordable housing. If no interest is shown from a governmental agency, the Landlord shall not lease the Property without first offering the Property to Tenant for lease. The word "lease" shall only include any lease of all or any portion of the Property or Landlord's interest in the Property.
4 A. After the Landlord has complied with Government Code sections 54222, et seq., and before the Landlord leases, seeks to lease, or enters into an agreement to lease the Property, Landlord shall offer ("First Offer") to lease the Property to Tenant. The First Offer shall be in writing and, at a minimum, include the following proposed conditions for lease:
(i) The price proposed for the lease; and
(ii) Other material terms and conditions of the proposed lease of the Property, including a restriction that any residential use of the Property shall include the minimum amount of affordable housing as required by Government Code section 54222, et seq. B. Tenant shall have ten (10) business days from the date of its receipt of the First Offer to accept the First Offer ("Acceptance Period") by delivering to Landlord the acceptance on or before 5:00 p.m. on the last day of the Acceptance Period. If Tenant fails to accept the First Offer on or before the last day of the Acceptance Period, the First Offer shall be deemed to be rejected.
C. If Tenant responds to the First Offer with anything other than an unequivocal acceptance or rejection, the right of first refusal shall terminate and the response shall be deemed an offer to lease the Property on the terms and conditions in the response ("Counter Offer").
Landlord shall be entitled to accept or reject the Counter Offer at Landlord's sole discretion. If the Counter Offer is rejected, Landlord may lease the Property to any prospective third-party tenant and the right of first refusal set forth in this Section 1.7 shall terminate.
D. If Tenant accepts the First Offer, Tenant shall have the greater of: (i) ninety (90) days; or (ii) the time period set forth in the First Offer, following acceptance of the First Offer ("Closing Period") to consummate the purchase of the Property pursuant to the terms and conditions of the First Offer. Consummation shall constitute execution by the Tenant of a Lease Agreement reasonably acceptable to the Landlord and Tenant.
1.8 Lease Termination. Subject to Tenant’s notice and opportunity to cure set forth in Section
1.8.5 and the Tenant’s right to request an extension pursuant to Section 1.8.3, Landlord retains the right to terminate the Lease upon six (6) months’ written notice if Tenant fails to meet any of the following milestones:
1.8.1 Within one-hundred twenty (120) days following the Effective Date, Tenant shall submit an application and applicable submittal requirements as outlined in Exhibit “C” to the Planning Division of the City of Riverside’s Community & Economic Development Department for:
(a) Project design review of Tenant’s proposed development of the Project, including specific site plan and preliminary elevations (“Project Design”); (b) All necessary entitlements, technical studies, and environmental clearance for the Project (“Project Entitlements”); and
5 (c) Any other documents, permits, or applications required for the development of the Project.
1.8.2 Within one-hundred eighty (180) days following the Effective Date, Tenant shall provide evidence of Project Entitlements and necessary grading and building permits.
1.8.3 The above-referenced milestone deadlines and any termination notice timelines will be paused if delays are caused by third-party regulatory bodies, public utilities, or the City of Riverside in processing submittals, provided the Tenant has acted in good faith, for up to three (3) months. Notwithstanding the foregoing, upon Tenant’s written request, the milestone deadlines may be extended for up to three (3) months, which extension Landlord shall not unreasonably withhold, condition, or delay, where Tenant has acted in good faith and diligently pursued the applicable milestone.
1.8.4 Landlord shall have no right to exercise the termination right set forth in Section
1.8 after the earlier to occur of: (i) issuance of the necessary grading and building permits; or (ii) the Rent Commencement Date.
1.8.5 Notice and Opportunity to Cure. Notwithstanding anything to the contrary in this Section 1.8, Landlord shall not deliver a notice of termination under this Section 1.8, unless and until: (i) Landlord has first delivered to Tenant written notice specifying the milestone Tenant has failed to diligently and in good faith pursue; and (ii) Tenant has failed, within thirty (30) days after receipt of such notice, to commence a cure (to the extent curable) and thereafter diligently prosecute such cure to completion to Landlord’s reasonable satisfaction. If Tenant timely commences and thereafter diligently pursues such cure to Landlord’s reasonable satisfaction, Landlord’s termination right with respect to the applicable milestone shall not accrue.
1.8.6 Extension for Events Beyond Tenant’s Control. In addition to the pause set forth in Section 1.8.3, the milestone deadlines set forth in this Section 1.8 and the corresponding termination notice timelines shall be extended, on a day-for-day basis, for any period of delay in Tenant’s performance to the extent caused by events beyond Tenant’s reasonable control, including epidemic or pandemic, governmental shutdown or moratorium, war, terrorism, civil unrest, strikes, or other labor disputes, shortage, or unavailability of materials, equipment, or fire, flood, earthquake, or other extreme weather or natural disaster, provided that Tenant: (i) gives Landlord written notice of the delay and its cause within thirty (30) days after Tenant becomes aware of the event; and (ii) uses reasonable efforts to mitigate and overcome the delay. This Section 1.8.6 applies solely to the milestone deadlines under this Section 1.8 and shall not excuse Tenant’s obligation to pay Rent or any other monetary obligation under this Agreement.
ARTICLE II
CONDITION OF PROPERTY; DELIVERY OF PROPERTY; COMMON FACILITIES
2.1 Condition of Property. Tenant has examined the Property and agrees to take possession of the Property in an “as-is” condition. Tenant acknowledges and agrees that, except for the express representations set forth in this Agreement, Landlord, including its authorized agents, representatives, and employees, has not made any representations, guarantees, or warranties 6 regarding the Property, nor has Landlord, its agents, representatives, or employees made any representations, guarantees, or warranties regarding whether the Property complies with applicable covenants and restrictions of record, building codes, ordinances, or statutes in effect at the Lease Commencement Date. Notwithstanding any other provision of this Lease, Landlord covenants to deliver the Property to Tenant, vacant and free of any improvements, buildings, or structures. 2.2 Delivery of Property. Landlord agrees to use its best commercially reasonable efforts to deliver possession of the Property to Tenant within thirty (30) days after the Effective Date of this Agreement. If, despite said efforts, Landlord is unable to deliver possession as agreed, Tenant shall not be subject to any liability therefor, nor shall such failure affect the validity of this Agreement. Tenant shall not, however, be obligated to pay rent or perform its other obligations until it receives possession of the Property. If possession is not delivered within thirty (30) calendar days after the Lease Commencement Date, Tenant may, by notice in writing after the end of such thirty (30) calendar day period, cancel this Agreement and the Parties shall be discharged from all obligations hereunder.
2.3 Landlord Access. Landlord, and its authorized agents, representatives, and employees, may immediately enter the Property at any time in case of emergency (which means an imminent threat to life), and otherwise, with forty-eight (48) hours’ prior notice to Tenant to and will comply with reasonable site safety, security, and escort procedures, without unreasonably interfering with Tenant’s construction or operations: (i) inspect the Property; (ii) exhibit the Property to prospective purchasers, lenders, insurer, or tenants; (iii) determine whether Tenant is complying with all its obligations hereunder; provided, however, that Landlord shall only exhibit the Property to prospective tenants during the last three (3) months of the Term. There shall be no abatement of any Base Rent by reason of Landlord’s reasonable entry of the Property pursuant to this Section
2.3. There shall be no abatement of any Base Rent by reason of Landlord’s reasonable entry of the Property, pursuant to this Section 2.3, and Tenant hereby waives any claim for damages, including, but not limited to, interference with business, lost profits, and any other incidental or consequential damages of any sort whatsoever, for any injury or inconvenience to or interference with Tenant’s business, any loss of occupancy, or quiet enjoyment of the Property or any other loss occasioned by such reasonable entry; provided, however, that the foregoing waiver shall not apply to any loss or damage to the extent caused by the negligence or willful misconduct of Landlord or its agents, representatives, or employees. Landlord shall at all times have and retain a key with which to unlock all of the doors in, or about the Property (excluding Tenant’s vaults, safes, and similar areas designated in writing by Tenant in advance); and Landlord shall have the right to use any and all means which Landlord may deem reasonably proper to open said doors in an emergency in order to obtain entry to the Property, and any entry to the Property obtained by Landlord by any of said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into or detainer of the Property, or an eviction, actual or constructive, of Tenant from the Property, or any portion thereof. No provision of this Agreement shall be construed as obligating Landlord to perform any repairs, alterations, or improvements, except as otherwise expressly agreed to be performed by Landlord in this Agreement. 7 2.4 Site Improvements. Tenant shall, at its sole cost and expense, design, permit, construct, install, maintain, repair, and replace all on-site and off-site improvements required for access to the Property, including, but not limited to, driveways, curb cuts, roadways, traffic control improvements, utility extensions, drainage facilities, and any improvements required by any governmental agency as a condition of approval of Tenant's use of the Property and pursuant to the ordinances, resolutions, rules and/or regulations adopted or enacted by that governmental agency for such improvements and may not be imposed under this Lease, unless otherwise stated herein.
ARTICLE III
PAYMENT OF BASE RENT; LATE CHARGES
3.1 Payment of Rent. Scheduled Base Rent shall be paid in advance on or before the first calendar day of each month during the Term. If the Rent Commencement Date falls on a calendar day other than that first calendar day of the month or the Term ends on a calendar day other than that last calendar day of a calendar month, then Base Rent will be appropriately prorated by Landlord based on the actual number of calendar days in such month. Base Rent shall be paid to Landlord without written notice or demand, and without offset, in lawful money of the United States of America at Landlord’s address, or to such other address as Landlord may from time to time designate in writing.
3.2 Late Charges. Tenant hereby acknowledges that late payment by Tenant of the Base Rent, additional rent, or any other sums due under this Agreement will cause Landlord to incur costs not contemplated by this Agreement. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by the terms of any mortgage or trust deed covering the Property. Accordingly, if any installment of Base Rent, additional rent, or any other sums due from Tenant under this Agreement, shall not be paid by Tenant and received by Landlord within seven (7) days from the day it becomes due hereunder, Landlord shall provide written notice to Tenant alerting Tenant to the same (provided that Landlord shall only be required to provide one such notice each calendar year, after which point a late charge shall automatically accrue on the tenth day of the month), and if Tenant fails to remit the same within ten (10) days after its receipt of such notice, Tenant shall thereupon pay to Landlord a late charge equal to ten percent (10%) of the overdue amount. Landlord and Tenant agree that this late charge represents a reasonable sum considering all of the circumstances existing on the date of this Agreement, including the relationship of the sum to the loss to Landlord that could be reasonably anticipated by such nonpayment by Tenant and the anticipation that proof of actual damages sustained by Landlord would be costly or inconvenient to determine. Landlord and Tenant agree that such late charge shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies available to Landlord at law, in equity, or under this Agreement. Landlord, at its option, may deem any such overdue amounts and/or late charges so unpaid to be additional rent, nonpayment of which shall, in addition to any other rights and remedies available to Landlord, give rise to those rights and remedies of Landlord set forth in Section 12.2 of this Agreement. 8 ARTICLE IV
USE; COMPLIANCE WITH LAWS; NON-DISCRIMINATION
4.1 Use. The Property shall be used only for the purposes set forth in Section 1.5, and purposes incidental and related to that use. Tenant shall use the Property in a careful, safe, and proper manner. Tenant shall not use or permit the Property to be used or occupied for any purpose or in any manner prohibited by any applicable law, ordinance, order, rule, regulation, or other governmental requirement. Tenant shall not commit waste or suffer or permit waste to be committed in, on, or about the Property. Tenant shall conduct its business and control its employees, agents, and invitees in such a manner so as not to create a nuisance, a risk of fire, or other hazard, or that would violate, suspend, void, or increase the rate of fire, liability, or any other insurance of any kind at any time carried by Landlord upon the Property.
4.2 Compliance with Laws. Tenant shall comply with all applicable laws, ordinances, orders, rules, regulations, and other governmental requirements relating to the use, condition, or occupancy of the Property. The final, non-appealable judgment of any court of competent jurisdiction, or the admission of Tenant in a proceeding brought against it by any governmental entity, that Tenant has violated any such governmental requirement, shall be conclusive as between the Landlord and the Tenant and shall constitute grounds for declaration of default, material breach, forfeiture, and termination of this Agreement by Landlord. Notwithstanding the foregoing, no such violation shall constitute grounds for declaration of default, material breach, forfeiture, or termination of this Agreement by Landlord, unless and until Landlord has provided Tenant with the written notice and opportunity to cure required under Article XII and Tenant has failed to cure within the applicable cure period, unless such violation is a threat to public health and safety.
4.3 Compliance with Environmental Laws. Tenant will not cause or permit the storage, use, generation, or disposition of any Hazardous Materials, as hereinafter defined, in, on, or about the Property by Tenant, its agents, employees, or contractors so as to cause the Property to be contaminated by any Hazardous Materials in violation of any applicable laws, ordinances, orders, rules, and regulations regulating, relating to, or imposing liability of standards of conduct concerning any Hazardous Materials or pertaining to occupational health or industrial hygiene, occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) [42 USC Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (“RCRA”) [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) [33 USC Section 1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.]; the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C Section 25288 et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C Section 24249.5 et seq.]; 9 the Porter-Cologne Water Quality Act [Water Code Section 13000 et seq.], together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, ordinance, order, rule, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use (“Environmental Laws”).
A. Tenant shall immediately notify Landlord in writing and provide copies upon receipt of all written complaints, claims, citations, demands, inquiries, reports, or notices relating to the condition of the Property or compliance with Environmental Laws. Tenant shall promptly cure and have dismissed with prejudice and of those actions and proceedings to the reasonable satisfaction of Landlord. Tenant shall keep the Property free of any lien imposed as a result of its use thereof pursuant to Environmental Laws.
B. For the purpose of this Section 4.3, the term “Hazardous Materials” shall include, without limitation, substances defined as “hazardous substances,” “hazardous materials,” “toxic substances,” “hazardous wastes,” “extremely hazardous wastes,” or “restricted hazardous wastes,” or stated to be known to cause cancer or reproductive toxicity, under any Environmental Law.
Tenant shall not permit to occur any release, generation, manufacture, storage, treatment, transportation, or disposal of any Hazardous Materials on the Property during the Term; provided, however, that “Hazardous Materials” shall not include materials commonly used in the ordinary operations of hydrogen production, storage, dispensing, and electronic charging infrastructure operations, provided that: (1) such materials are used and properly stored on the Property in quantities ordinarily used and stored in comparable retail automobile sales, service, storage, and repair operations; and (2) such materials are used and properly stored in compliance with Environmental Laws. Tenant shall promptly notify Landlord in writing if Tenant has or acquires notice or knowledge that any Hazardous Materials have been or are threatened to be released, discharged, disposed of, transported, or stored on, in, under, or from the Property; and if any Hazardous Materials are found on the Property that were caused by Tenant or as a result of Tenant’s use thereof, Tenant, at its sole cost and expense, shall immediately take such action as is necessary to detain the spread of and remove the Hazardous Material to the complete satisfaction of Landlord and the appropriate governmental authorities.
C. Landlord shall, at Landlord’s sole cost and expense, have the right from time to time with the notice required in this Lease, to conduct environmental audits of the Property, and Tenant shall reasonably cooperate (at no cost to Tenant) in the conduct of those audits; provided, however, that Landlord’s entry and audits shall not unreasonably interfere with Tenant’s occupation of the Property.
D. If Tenant fails to comply with the foregoing covenants pertaining to Hazardous Materials, Landlord may cause the removal (or other cleanup acceptable to Landlord) of any Hazardous Materials from the Property. The costs of Hazardous Materials removal and any other cleanup (including transportation and storage costs) will be additional rent under this Agreement, and those costs will become due and payable on demand by the Landlord. Tenant shall give Landlord, its agents and employees access to the Property to remove or otherwise clean up any 10 Hazardous Materials. Landlord, however, has no affirmative obligation to remove or otherwise clean up any Hazardous Materials, and this Agreement shall not be construed as creating any such obligation.
E. Except to the extent caused by Landlord’s gross negligence or willful or criminal misconduct, Tenant shall indemnify, defend (with counsel reasonably acceptable to Landlord and at Tenant’s sole cost), and hold Landlord and Landlord’s elected and appointed officials, officers, employees, agents, successors, and assigns free and harmless from and against all losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages (including consequential damages), disbursements or expenses of any kind (including attorneys’ and experts’ fees and expenses and fees and expenses incurred in investigating, defending, or prosecuting any litigation, claim, or proceeding) that may at any time be imposed upon, incurred by, or asserted or awarded against Landlord in connection or arising out of: (i) any violation or claim of violation of any Environmental Law by Tenant; or (ii) the imposition of any lien for the recovery of costs for environmental cleanup or other response costs relating to the release or threatened release of Hazardous Materials on, in, under, or affecting all or any portion of the Property caused by Tenant's breach of its obligations under this Section 4.3. Tenant’s indemnification shall survive the expiration and termination of this Agreement.
4.4 Non-Discrimination. Tenant herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the requirement that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, genetic information, gender, gender identity, gender expression, marital status, age, national origin, or ancestry, in the leasing, use, occupancy, tenure, or enjoyment of the Property, nor shall the Tenant itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of Tenants, Tenants, Sub-tenants, or vendees in the Property herein leased.
ARTICLE V
TAXES AND UTILITIES
5.1 Possessory Interest Tax/Property Taxes. Tenant recognizes and understands that this Agreement may create a possessory interest subject to taxation and that Tenant may be subject to the payment of taxes levied on such interest. Tenant shall pay all taxes, including, without limitation, any possessory interest, property tax, real estate, and personal property taxes and assessments assessed, levied, confirmed, or imposed during the Term of this Agreement, whether or not now customary or within the contemplation of Landlord and Tenant: (i) upon, measured by or reasonably attributable to the cost or value of Tenant’s equipment, furniture, fixtures, and other personal property located in the Property, or by the cost or value of the leasehold improvements made in or to the Property by or for Tenant, regardless of whether title to the improvements is in Tenant or Landlord; (ii) upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use, or occupancy by Tenant of the Property or any portion of the Property; and (iii) upon the Property and all personal property, furniture, fixtures, and equipment, and all replacements, improvements, or additions to them, whether owned by Landlord or Tenant; provided, however, that Tenant shall not be responsible to pay any taxes assessed on any adjacent 11 property not included in the Property leased to Tenant, or any taxes assessed in connection with Landlord’s income from or transfer of any interest in the Property. Tenant shall not be responsible for any other taxes, including those incurred by Landlord, except as otherwise stated herein.
5.2 Utilities. Tenant shall pay the appropriate suppliers for all water, gas, power, electricity, light, heat, telephone, facsimile, internet, and other utilities and communications services used by Tenant on the Property during the Term, including the taxes thereon, whether or not the services are billed directly to Tenant. Tenant shall procure, or cause to be procured, without cost to Landlord, any and all necessary permits, licenses, or other authorizations required for the lawful and proper installation and maintenance upon the Property of wires, pipes, conduits, tubes, and other equipment and appliances for use in supplying any of the services to and upon the Property.
Landlord, upon request of Tenant, shall at the sole expense and liability of Tenant, join with Tenant in any application required for obtaining and continuing any of the services.
ARTICLE VI
INSURANCE; INDEMNIFICATION; WAIVER AND RELEASE
6.1 Minimum Insurance Requirements. At all times during the Term and during any other time in which Tenant occupies the Property, Tenant, at its sole cost and expense, shall procure, pay for, and maintain the following types of insurance with the following coverages:
A. Commercial General Liability. Tenant shall, at Tenant’s sole expense, obtain and maintain during the Term: (i) a policy of commercial general liability insurance, including contractual liability insurance, for bodily injury, property damage, and personal/advertising liabilities arising out of the use or occupancy of the Property and all areas appurtenant thereto, including parking areas. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000) per occurrence and a Two Million Dollars ($2,000,000) annual aggregate for all claims.
B. Tenant’s Property and Business Interruption Insurance. Tenant shall, at Tenant’s sole expense, obtain, and maintain during the Term, insurance coverage for: (i) Tenant’s personal property, inventory, alterations, fixtures, and equipment located on the Property, for the full replacement value thereof, without deduction for depreciation, and with a deductible not to exceed Five Thousand Dollars ($5,000.00) per occurrence. The proceeds of such insurance, so long as this Agreement remains in effect, shall be used to repair or replace the personal property, inventory, alterations, fixtures, and equipment so insured; and for (ii) loss of income and extra expense in such amounts as will reimburse Tenant for direct and indirect loss of earnings attributable to all perils commonly insured against by prudent Tenants.
6.2 Delivery of Evidence of Tenant’s Insurance. Each such insurance policy or certificate thereof shall be delivered to Landlord by Tenant on or before the effective date of such policy and thereafter Tenant shall deliver to Landlord renewal policies or certificates at least thirty (30) calendar days prior to the expiration dates of the expiring policies. In the event that Tenant shall fail to insure or shall fail to furnish Landlord the evidence of such insurance as required by this Section 6.2, Landlord may from time to time acquire (without any obligation to do so) such insurance for the benefit of Tenant or Landlord or both of them for a period not exceeding one (1) 12 year, and any premium paid by Landlord shall be recoverable from Tenant as additional rent on demand. Tenant’s compliance with the provisions of Article VI shall in no way limit Tenant’s liability under any of the other provisions of this Agreement. Landlord may at any time, and from time to time, inspect and/or copy any and all insurance policies required by this Agreement.
6.3 Other Insurance Requirements. The insurance to be acquired and maintained by Tenant shall be with companies admitted to do business in the State of California with a policy holder’s rating of A or higher and a Financial Class of VII or higher. Tenant shall deliver to Landlord, prior to taking possession of the Property, a certificate of insurance evidencing the existence of the policies required hereunder, and such certificate shall certify that the policy:
A. Names Landlord and any other entities designated by Landlord as additional insureds under the Commercial General Liability policy; B. Shall not be canceled or altered without thirty (30) calendar days’ prior written notice to Landlord;
C. Insures performance of Tenant’s indemnity set forth in this Agreement; D. Provides that no act or omissions of Tenant shall affect or limit the obligations of the insurer with respect to other insureds or including Landlord; E. Includes all waiver of subrogation rights endorsements necessary to effect the provisions below; and
F. Provides that the commercial general liability policy and the coverage provided shall be primary, that Landlord, although an additional insured, shall, nevertheless, be entitled to recovery under such policy for any damage to Landlord by reasons of acts or omissions of Tenant, and that coverage carried by Landlord shall be noncontributory with respect to policies carried by Tenant.
6.4 Mutual Waiver of Subrogation. The Parties hereto release each other and their respective authorized employees, agents, and representatives, from any and all claims, demands, loss, expense, or injury to any person, or to the Property or to personal property, including, but not limited to, furnishings, fixtures, or equipment located therein, caused by or resulting from perils, events, or happenings, which are the subject of insurance in force at the time of such loss. Each Party shall cause each insurance policy obtained by it to provide that the insurer waives all right of recovery by way of subrogation against either party in connection with any damage covered by any policy. Neither Party shall be liable to the other for any damage caused by fire or any of the risks insured against under any insurance policy in effect as required by this Agreement.
6.5 No Ownership. Nothing contained in Article VI shall be construed as creating or implying the existence of: (i) any ownership by Tenant of any fixtures, additions, alterations, or improvements in or to the Property existing prior to the Effective Date; or (ii) subject to other terms and conditions contained in this Lease, any right on Tenant’s part to make any addition, alteration, or improvement in or to the Property.
13 6.6 Indemnity. Except to the extent caused by the negligence or willful or criminal misconduct of Landlord, Tenant agrees to fully indemnify, defend, and hold Landlord, its elected and appointed officials, officers, employees, agents, successors, and assigns, free and harmless from any and all claims, liability, loss, damage, costs, or expenses, including attorney fees, resulting from the Tenant’s occupation or use of the Property, specifically including, without limitation, any claim of liability, loss or damage arising by reason of:
A. The death or injury of any person or persons, including Tenant or any person who is an employee, agent, guest, or customer of Tenant, or by reason of the damage or destruction of any property, including property owned by Tenant or any person who is an employee, agent, guest, or customer of Tenant, and caused by either the condition of the Property as a result of Tenant’s occupation of the same, or some act or omission of Tenant or of some agent, contractor, employee, servant, guest, or customer of Tenant on the Property;
B. Any work performed on the Property or materials furnished to the Property at the instruction or request of Tenant; and
C. Tenant’s failure to perform any provision of this Agreement, or comply with any requirement of local, state, or federal law or any requirement imposed on Tenant or the Property by any duly authorized governmental agency or political subdivision.
6.7 Waiver and Release. Tenant waives and releases all claims against Landlord, its employees, and agents with respect to all matters for which Landlord has disclaimed liability pursuant to the provisions of this Agreement. In addition, except to the extent caused by the negligence or willful or criminal misconduct of Landlord or Landlord’s breach of this Agreement, Tenant agrees that Landlord, its elected and appointed officials, employees, agents, successors, and assigns shall not be liable for any loss, injury, death, or damage (including consequential damages) to persons, property, or Tenant’s business, occasioned by theft; act of God; public enemy; injunction; riot; strike; insurrection; war; terrorism; court order; order of governmental body or authority; earthquake; fire; explosion; falling objects; water; rain; snow; leak; or flow of water, or by dampness or from the breakage, leakage, obstruction, or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or light fixtures; or from construction, repair, or alteration of the Property; or from any acts or omissions of any visitor of the Property.
ARTICLE VII
REPAIRS AND MAINTENANCE; ALTERATIONS
7.1 Repairs and Maintenance Tenant Obligations. Tenant shall, at its sole cost and expense, maintain the Property in good order, condition, and repair (normal wear and tear excepted), and make repairs, restorations, and replacements to the Property, including, without limitation, the heating, ventilation, air conditioning, mechanical, electrical, lighting, plumbing systems, structural roof, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, and the fixtures and appurtenances to the Property, as and when needed to preserve them in good working order and condition, normal wear and tear excepted. All repairs, restorations, and replacements shall be in quality and class equal to the original work or installations. If Tenant fails to make 14 repairs, restorations, or replacements within thirty (30) days of written notice thereof from Landlord (or such longer period as may be required if Tenant is not reasonably able to complete such repair in that time period), Landlord may make them at the expense of Tenant and the expense shall be collected as additional rent to be paid by Tenant within fifteen (15) calendar days after delivery of a statement for the expense.
7.2 Alterations. Tenant shall not make any alterations, improvements, or additions in, on or about any of the Property, without first obtaining Landlord’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. However, Landlord’s prior written consent will not be necessary for any alteration, improvement, or addition which is either: (i) non-structural in nature (i.e., alterations which do not require governmental permits); or (ii) costs less than One Hundred Thousand Dollars ($100,000), including labor and material. All alterations, improvements or additions in, on, or about the Property, whether temporary or permanent in character, shall immediately become Landlord’s property and at the expiration of the Term of this Agreement shall remain on the Property without compensation to Tenant; provided, however, that Tenant shall remain the owner of any and all furniture, trade fixtures, equipment, signs, and all other items of Tenant’s movable personal property located in or about the Property. Tenant shall remain the owner of any project equipment installed by Tenant, including modular systems, controls, charging and dispensing equipment, electrical equipment, replaceable components, trade fixtures, grant-funded assets, and financing collateral. Tenant may remove such property within a reasonable period after expiration or termination and will repair all removal damage. Foundations, paving, drainage, and underground utilities designated by the parties in writing as permanent site work will remain on the Property at the end of the Lease, and Tenant shall be responsible for removal of any such items not designated by the parties in writing as permanent site work within a reasonable period after expiration or termination and will repair all removal damage.
7.3 Mechanic’s Liens. Tenant shall pay or cause to be paid all costs and charges for: (i) work done by Tenant or caused to be done by Tenant, in or to the Property; and (ii) all materials furnished for or in connection with such work. Tenant shall indemnify the Landlord against and hold the Landlord and the Property, free, clear, and harmless of and from any liens or claims of liens arising out of any work performed, materials furnished or obligations incurred by the Tenant, and Tenant shall be responsible for the removal of any such liens and all costs to remove same. Failure to remove any such liens within thirty (30) calendar days of written request by Landlord shall constitute a default of this Agreement. At its election, but without having any obligation to do so, the Landlord may pay such liens not so removed by the Tenant and any amount expended by Landlord shall be collected as additional rent to be paid by Tenant within fifteen (15) calendar days after delivery of a statement for the expense.
ARTICLE VIII
DAMAGE AND DESTRUCTION; CONDEMNATION
8.1. Damage or Destruction of Property. Unless as the result of negligence or intentional unlawful act of Tenant, if during the term of this Agreement, any portion of the Property shall be damaged by fire or other catastrophic cause, so as to render such portion of the Property untenable, the obligations under this Agreement may be suspended while such portion of the Property remains untenable. In the event of such damage, Tenant shall give Landlord notice of such untenable 15 conditions and within sixty (60) days thereafter, the Tenant shall elect, in its sole discretion, whether to repair the Property at Tenant’s sole cost or to cancel this Agreement with respect thereto. Tenant shall notify Landlord in writing of its election. In the event that Tenant elects not to repair the Property or portion thereof, this Agreement shall be deemed canceled as of the date the damage occurred with respect to the applicable portion(s). In the event that Tenant decides to proceed with the Lease, minus the untenable portion of the Property, the parties agree to amend the Lease to remove the untenable portion of the Property from the Lease and equitably reduce Base Rent to reflect the reduction of the square footage of the Property represented by that untenable portion.
8.2 Condemnation. If all or any part of the Property shall be condemned or taken as a result of the exercise of the power of eminent domain, including any conveyance or assignment in lieu of any condemnation or taking, this Agreement shall terminate as to the part so taken as of the date of taking, and, in the case of a partial taking, Tenant shall have the right to terminate this Agreement as to the balance of the Property by notice to the Landlord within thirty (30) calendar days after the date of such taking; provided, however, that a condition to the exercise by Tenant of such right to terminate shall be that the portion of the Property taken shall be of such extent and nature as to materially handicap, impede, or impair Tenant’s use of the balance of the Property.
In any event, Tenant shall be entitled to an award from the taking entity, for Tenant’s relocation expenses and for the taking of any personal property or trade fixtures belonging to Tenant. In the event of a partial taking of the Property which does not result in a termination of this Agreement, the monthly rent thereafter to be paid shall be reduced in proportion to the portion of the Property taken. Landlord shall be entitled to an award from the taking entity, for compensation, damages, income, rent which may be paid without diminishing the award otherwise due to Tenant.
A. For the purposes of this Section 8.2, the date of taking shall be the date upon which the condemning authority takes possession of any part of the Property or the date upon which Tenant is required by the condemning authority to commence vacating the Property, whichever is earlier.
B. Notwithstanding anything to the contrary contained in this Section 8.2, if the Property or any part thereof shall be taken under power of eminent domain on a temporary basis, this Agreement shall be and remain unaffected by such taking and Tenant shall continue to pay in full all monthly rent payable hereunder, provided that Tenant shall be entitled to receive that portion of any award which represents compensation for the use of or occupancy of the Property during the Term of this Agreement, and Landlord shall be entitled to receive that portion of any award which represents the cost restoration of the Property and the use and occupancy of the Property after the end of the Term of this Agreement.
ARTICLE IX
ASSIGNMENT; SUBLETTING; PROCESSING
9.1 Assignment and Subletting. Other than a transfer to an affiliate or successor of Tenant (which shall only require a notice to the Landlord), Tenant shall not assign, mortgage, pledge, encumber, or hypothecate this Lease or any interest herein (directly, indirectly, voluntarily, or involuntarily, by operation of law, or otherwise) or sublet the Property (except as provided below), 16 or any part thereof, without the prior written consent of Landlord first being obtained, which consent shall not be unreasonably withheld, conditioned, or delayed.
A. In the event that Tenant should desire to sublet the Property or any part thereof, or assign this Agreement, Tenant shall provide Landlord with written notice of such desire at least thirty (30) calendar days in advance of the proposed effective date of such subletting or assignment.
Such notice shall include: (i) the name of the proposed subtenant or assignee; (ii) the nature of business to be conducted by the proposed subtenant or assignee in the Property; (iii) the terms and conditions of the proposed assignment or sublease, including, but not limited to, a detailed description of all compensation in cash or otherwise which Tenant would be entitled to receive in connection with such assignment or sublease; and (iv) the most recent financial statements or other financial information concerning the proposed subtenant or assignee as Landlord may reasonably require. At any time within thirty (30) calendar days following receipt of Tenant’s notice, Landlord may by written notice to Tenant elect to: (i) consent to the proposed subletting of the Property or assignment of this Agreement; or (ii) disapprove of the proposed subletting or assignment.
Landlord shall not unreasonably withhold its consent to a proposed subletting or assignment.
Notwithstanding the foregoing, a sublet for less than ten percent (10%) of the total square footage of the land where the Property is located shall not require notice to or approval from the Landlord nor shall it be subject of this Article IX.
B. Subject to obtaining Landlord’s consent in accordance with the requirements of Section 9.1, in order for any assignment or sublease to be binding on Landlord, Tenant must deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the subtenant or assignee shall expressly assume all obligations of Tenant under this Agreement as to the portion of the Property subject to such assignment or sublease. Any purported sublease or assignment will be of no legal force or effect unless and until the proposed sublease has been consented to, in writing, by Landlord and a fully-executed copy thereof has been received by Landlord.
C. Regardless of Landlord’s consent, no subletting or assignment shall release Tenant of its obligations or alter the primary liability of Tenant to pay rent and to perform all other obligations to be performed by Tenant hereunder. The acceptance of payments by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent or further assignment, subletting, hypothecation or third-party use or occupancy.
D. Landlord shall have the unconditional right to sell, encumber, pledge, convey, transfer, and/or assign any and all of its rights and obligations under the Agreement without the consent of or notice to Tenant or any guarantor(s) of Tenant’s obligations hereunder; provided that the Landlord assignee is solvent and assumes all obligations of Landlord hereunder accruing after the date of the transfer.
9.2 Processing Fee. Tenant agrees to pay Landlord an administrative fee of Five Hundred Dollars ($500.00) in conjunction with the processing and document review of any requested transfer, assignment, subletting, mortgage, or hypothecation of the Lease or Tenant’s interest in and to the Property. Notwithstanding the foregoing, Landlord shall without any additional cost 17 review, approve, and execute a “Landlord’s Waiver” as may be requested by Tenant’s lenders, from time to time, relating to the mortgage, hypothecation, or other financing of Tenant’s property, including fixtures and equipment.
ARTICLE X
HOLDING OVER; SALE OF PROPERTY
10.1 No Right to Holdover. Tenant has no right to retain possession of the Property or any part thereof beyond the expiration or termination of this Agreement. If, without objection by Landlord, Tenant holds possession of the Property after expiration of the Term, Tenant shall become a Tenant from month-to-month upon the terms herein specified, except that the monthly rent shall be equal to one hundred fifty percent (150%) of the monthly rent payable by Tenant at the expiration of the Term. In addition, Tenant shall continue to pay all other amounts due to Landlord hereunder. Each Party shall give the other notice at least one (1) month prior to the date of termination of such monthly tenancy of its intention to terminate such tenancy. If, after objection by Landlord thereto, Tenant holds possession of the Property after expiration of the Term, Tenant shall constitute a Tenant at sufferance and without in any way waiving the wrongful holding over of the Property by Tenant, Landlord shall be entitled to receive for each month or portion thereof during which Tenant wrongfully holds over at the Property monthly rent equal to one hundred fifty percent (150%) of the monthly rent payable by Tenant at the expiration of the Term, together with all other amounts otherwise due to Landlord hereunder. Landlord’s receipt of increased monthly rent under this Section 10.1 shall not constitute an extension of the Term nor shall it constitute a waiver of Tenant’s wrongful holding over and shall not prejudice any other rights or remedies available to Landlord under this Agreement or by law.
10.2 Sale of Property. In the event Landlord, or any successor owner of the Property, shall sell or convey the Property, all liabilities, and obligations on the part of the Landlord, or such successor owner, under this Agreement, accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner subject to such new owner’s obligation to assume all obligations of Landlord under this Lease.
ARTICLE XI
SUBORDINATION; ESTOPPEL CERTIFICATES
11.1 Subordination. This Agreement and the rights of Tenant hereunder are subject and subordinate to any ground or underlying lease and the lien of the holder of or beneficiary under a mortgage or deed of trust which now or in the future encumbers the Property and to any and all advances made thereunder, and interest thereon, and all modifications, renewals, supplements, consolidations, and replacements thereof. Tenant agrees that any ground or underlying Landlord or lender may at its option, unilaterally elect to subordinate, in whole or in part, such ground or underlying lease or the lien of such mortgage or deed or trust to this Agreement. Such subordination or priority of this Agreement, as the case may be, shall be effective without the necessity of executing any further instrument or agreement to effect such subordination or priority; provided, however, that Tenant agrees to execute, acknowledge, and deliver to Landlord, upon demand, any and all instruments reasonably required by Landlord or any such ground or underlying Landlord or lender evidencing the subordination or priority of this Agreement, as the 18 case may be. Notwithstanding any other provision of this Lease, any such subordination by Tenant is and shall be with the understanding that so long as Tenant is not in default of its obligations under this Lease, the tenancy provided for herein shall continue in full force and effect and Tenant shall be permitted to occupy the Property under the terms hereof notwithstanding any default by Landlord under such mortgage or security instruments, or any transfer of title to the Property by foreclosure, deed-in-lieu of foreclosure or otherwise. If there is a mortgage encumbering the Property, Landlord shall use commercially reasonable efforts, within a reasonable amount of time after the execution of this Lease, to deliver a Subordination, Attornment, and Non-Disturbance Agreement (“SNDA”) executed by Landlord and mortgage lienholder in a form as described below and otherwise acceptable to Tenant. This Lease and Tenant’s interest and rights hereunder are and shall be subject and subordinate at all times to the lien of any first mortgage, now or hereafter created on or against the Property, and all amendments, restatements, renewals, modifications, consolidations, refinancing, assignments, and extensions thereof, provided that the holder of such mortgage has executed, acknowledged, and delivered to Tenant a commercially reasonable SNDA that provides that: (a) Tenant’s possession of the Property and other rights hereunder shall not be disturbed in any proceeding to foreclose the mortgage or in any other action instituted in connection with such mortgage so long as Tenant is not in default beyond applicable notice and cure periods under this Lease; (b) Tenant shall not be named as a defendant in any foreclosure action or proceeding which may be instituted by the holder of such mortgage; (c) in the event of casualty or condemnation, the holder of the mortgage agrees to make available the insurance and condemnation proceeds for the repair and restoration of the Property by Landlord in accordance with this Lease; (d) Tenant shall have the right to prepay any portion or all of any allowances provided herein in accordance with the terms and conditions set forth in this Lease; and (e) if the holder of the mortgage or any other person acquires title to the Property through foreclosure or otherwise, the Lease shall continue in full force and effect (including all provisions relating to the options to extend the term) as a direct lease between Tenant and the new owner, and the new owner shall assume and perform all of the terms, covenants, and conditions of the Lease, in each case subject to commercially reasonable modifications customarily agreed to by similar tenants and institutional lenders. Tenant agrees within twenty (20) days after receipt of a written request therefor from Landlord, to execute, acknowledge, and deliver any such SNDA. Notwithstanding the foregoing, any such holder may, at any time, subordinate its mortgage to this Lease, without Tenant’s consent, by notice in writing to Tenant, and thereupon this Lease shall be deemed prior to such mortgage without regard to their respective dates of execution, delivery, or recording and in that event such holder shall have the same rights with respect to this Lease as though this Lease had been executed prior to the execution, delivery, and recording of such mortgage and had been assigned to such holder. The term “mortgage,” whenever used in this Lease, shall be deemed to include deeds of trust, security assignments, ground leases, and any other encumbrances, and any reference to the “holder” of a mortgage shall be deemed to include the beneficiary under a deed of trust.
11.2 Estoppel Certificates. At any time and from time to time, Tenant shall execute, acknowledge, and deliver to Landlord, within ten (10) business days after request by Landlord, a certificate certifying, among other things: (i) that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect, as modified, and stating the date and nature of each modification); (ii) the date, if any, to which monthly rent and other sums payable hereunder have been paid; (iii) that no notice has been 19 received by Tenant of any default which has not been cured, except as to defaults specified in said certificate; and (iv) such other matters as reasonably may be requested by Landlord. If Tenant fails to respond to a request from Landlord for Tenant to execute and deliver an estoppel certificate to Landlord within the aforementioned ten (10) business day period, Landlord shall have the right to deliver a second notice (the “Estoppel Certificate Failsafe Notice”) to Tenant, which Estoppel Certificate Failsafe Notice must be sent by a nationally recognized overnight courier for next business day delivery, requesting Tenant to execute and deliver the estoppel certificate to Landlord (and/or to such other addressee or addresses as Landlord may designate), provided that such Estoppel Certificate Failsafe Notice shall also include in bold, capitalized letters near the top margin of the first page of same, the following statement: “TENANT’S FAILURE TO RESPOND TO THIS REQUEST WITHIN TEN (10) BUSINESS DAYS FOLLOWING TENANT’S RECEIPT OF SAME SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE LEASE AGREEMENT”. If Tenant fails to deliver the estoppel certificate as instructed within ten (10) business days following Tenant’s receipt of the Estoppel Certificate Failsafe Notice, such failure shall constitute a Non-Monetary Event of Default hereunder, subject to the notice and cure provisions of Section 12.1.C.
ARTICLE XII
DEFAULT; REMEDIES; DISPUTE RESOLUTION
12.1 Event of Default. The occurrence of any one or more of the following events (“Events of Default”) shall constitute a breach of this Agreement by Tenant, with the matter described in subsection A constituting a “Monetary Event of Default” and each of the matters described in subsections B, C, D, E, F, G, H, I, and J, each constituting a “Non-Monetary Event of Default”:
A. If Tenant shall default in its obligation to pay any installment of Base Rent when due and shall not cure such failure within ten (10) days following Tenant’s receipt of written notice thereof by Landlord to Tenant (a “Monetary Event of Default”); or B. If Tenant shall vacate or abandon the Property, which shall be deemed to occur if Tenant fails to continuously occupy the Property for a period of thirty (30) days during the initial Term and fails to re-occupy the Property following ten (10) days’ written notice from Landlord; provided, however, that nothing herein shall be construed as an express or implied covenant of continuous operation on the part of Tenant, and Landlord acknowledges that there is no covenant of continuous operation with respect to the Property, arising hereunder or otherwise on the part of Tenant. Further, Tenant shall only be deemed to have abandoned the Property if Tenant has vacated the Property, ceased maintaining and protecting it, and objectively demonstrated an intent to permanently relinquish the leasehold. Temporary non-use due to construction, permitting, financing, planned shutdown, maintenance, or equipment replacement shall not be deemed abandonment; or
C. If Tenant shall fail to perform or observe any other term hereof to be performed or observed by Tenant hereunder, and such failure shall not have been cured by Tenant within thirty (30) calendar days after notice thereof from Landlord, or, if such failure shall be of a nature so as reasonably to require more than thirty (30) calendar days to effect the cure thereof, Tenant shall 20 not within said thirty (30) calendar day period commence with due diligence and dispatch the curing of such failure; or
D. If Tenant shall make a general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or shall fail timely to contest the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of Tenant or any material part of its property; or
E. If within ninety (90) calendar days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed, or if, within ninety (90) calendar days after the appointment without the consent or acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or of any material part of its properties, such appointment shall not have been vacated; or F. If this Agreement or any estate of Tenant hereunder shall be levied upon under any attachment or execution and such attachment or execution is not vacated within ten (10) calendar days; or
G. If Tenant fails to timely deliver to Landlord an estoppel certificate executed and acknowledged, or otherwise respond within ten (10) business days following receipt of an Estoppel Certificate Failsafe Notice pursuant to Section 11.2; or H. If Tenant assigns or attempts to assign this Agreement or subleases or attempts to sublease any portion of the Property in violation of Section 9.1; or I. If voluntary waste is committed on the Property by Tenant and such voluntary waste shall not have been cured by Tenant within thirty (30) calendar days after notice thereof from Landlord; or
J. The occurrence of any event which pursuant to the terms hereof constitutes an Event of Default hereunder.
12.2 Remedies. On the occurrence of an Event of Default by Tenant hereunder, Landlord shall have the right to pursue any one of the following remedies (provided that Landlord may only repossess the Property following a Monetary Event of Default): (i) repossess the Property; or (ii) allow Tenant to remain in full possession and control of the Property.
A. If Landlord chooses to repossess the Property, then this Agreement will automatically terminate in accordance with the provisions of California Civil Code section 1951.2.
In the event of such termination of the Agreement, Landlord may recover from Tenant:
21 (i) The worth at the time of award of the unpaid rent which had been earned at the time of termination, including interest at the maximum rate allowed under California law; (ii) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided, including interest at the maximum rate allowed by law;
(iii) The worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and
(iv) Any other amount reasonably necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Agreement or which, in the ordinary course of things, would be likely to result therefrom.
B. “The worth at the time of the award,” as used in Section 12.2A(i) and (ii), shall be computed by allowing interest at the maximum rate allowed under California law per annum. “The worth at the time of the award,” as referred to in Section 12.2A(iii), shall be computed by discounting the amount at maximum rate allowed under California law.
C. Tenant shall be liable immediately to Landlord for all third-party costs Landlord actually incurs in re-letting the Property, including lost rents, eviction costs, attorney's fees, and brokers' commissions. Upon any Event of Default by Tenant, Landlord shall use reasonable efforts to mitigate its damages, including, without limitation, re-letting the Property; provided that any such re-letting can be for a period shorter or longer than the remaining Term. Tenant shall pay to Landlord the rent due under this Agreement on the dates the rent is due, unless Landlord notifies Tenant that Landlord elects to terminate this Agreement or Landlord has relet the Property. After Tenant's default and for as long as Landlord does not terminate Tenant's right to possession of the Property, if Tenant obtains Landlord's consent, Tenant shall have the right to assign its interest in this Agreement, or sublet all or a portion of the Property, but Tenant shall not be released from liability or its obligations under this Agreement. Landlord's consent to a proposed assignment or subletting shall be as required in Section 9.1.
D. If Landlord elects to re-let the Property, then any rent that Landlord receives from re-letting shall be applied to the payment of: (i) any indebtedness from Tenant to Landlord, other than rent due from Tenant; (ii) all costs incurred by Landlord in re-letting, including costs for maintenance; and (iii) rent due and unpaid under this Agreement.
E. After deducting the payments referred to in Section 12.2D, any sum remaining from any rent that Landlord receives from re-letting shall be held by Landlord and applied in payment of future rent as rent becomes due under this Agreement. In no event shall Tenant be entitled to any excess rent received by Landlord. If, on the date rent is due under this Agreement, the rent received from any re-letting is less than the rent due on that date, then Tenant shall pay to Landlord, in addition to the remaining rent due, all costs which Landlord incurred in re-letting, including 22 without limitation maintenance, that remain after applying the rent received from the re-letting, as provided in Section 12.2.D.
12.3 Continuation After Default. Even though Tenant has breached this Agreement and/or abandoned the Property, this Agreement shall continue in full force and effect for so long as Landlord does not terminate Tenant’s right to possession as provided in Section 12.2 above, and Landlord may enforce all its rights and remedies under this Agreement, including the right to recover rent as it becomes due under this Agreement. In such event, Landlord may exercise all of the rights and remedies of a Landlord under California Civil Code Section 1951.4, or any successor statute. Acts of maintenance or preservation or efforts to re-let the Property or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interest under this Agreement shall not constitute a termination of Tenant’s right to possession.
12.4 Landlord's Right to Cure Default. All agreements and provisions to be performed by Tenant under any of the terms of this Agreement shall be at its sole cost and expense and without abatement of rent, except as set forth herein. If Tenant shall fail to pay any sum of money, other than Rent, required to be paid by it hereunder or shall fail to perform any other act on its part to be performed hereunder and such failure shall not be cured within the applicable cure period provided for herein, if any, Landlord may, but shall not be obligated so to do, and without waiving or releasing Tenant from any obligations of Tenant, make any such payment or perform any such other act on Tenant's part to be made or performed as provided in this Agreement. All sums so paid by Landlord and all necessary incidental costs shall be on Tenant's account and shall be deemed additional rent hereunder and shall be payable to Landlord on demand.
12.5 Dispute Resolution. Any dispute arising out of or relating to this Agreement, or breach thereof, shall be first submitted to the senior management of each Party for resolution during a thirty (30) calendar day dispute resolution period. Notice must be in writing and served pursuant to Section 14.2 herein. The foregoing dispute resolution period shall run concurrently with any notice and cure periods provided for herein. Landlord shall not terminate Tenant’s right to possession as provided in Section 12.2 above until expiration of the dispute resolution period.
ARTICLE XIII
MORTGAGEE PROTECTION PROVISIONS
13.1 Leasehold Mortgage Authorized. Tenant shall have the right, from time to time during the Lease Term, to encumber Tenant leasehold interest in the Property and all rights appurtenant thereto, including, without limitation, any easements appurtenant to the Leased Property (hereinafter referred to as a “Leasehold Mortgage”), upon and subject to the following terms and conditions:
A. No Subordination of Fee. Any Leasehold Mortgage shall only encumber and constitute a lien on Tenant’s leasehold interest in the Property and rights appurtenant to that interest. Neither Landlord’s reversionary interest in the Property, nor the fee interest of Landlord in the Property shall be subordinated to or encumbered by any Leasehold Mortgage. 23 B. Identity of Lender. Except as otherwise approved by Landlord in Landlord’s reasonable discretion, the lender and secured party under any Leasehold Mortgage and/or fee encumbrance on the Property (hereinafter referred to as a “Mortgagee(s)”) must be an institutional lender, including, without limitation, bank, bank consortium, savings and loan association, insurance company, securities brokerage firm, mortgage company, or in connection with a securitized mortgage, held by a trustee or administrative agent or nominee for the benefit of lenders in a pooled investment fund or the holders of mortgage-backed securities.
C. Loan Documents. At Landlord’s written request, Tenant shall furnish Landlord with copies of the loan documents. To the extent that Landlord is legally able to do so, Landlord shall treat all documents pertaining to any Leasehold Mortgage as confidential and shall not disclose them to anyone other than Landlord’s attorneys and other professional business consultants without the prior written consent of Tenant and the Mortgagee.
D. Use of Proceeds. In the case of any Leasehold Mortgage any proceeds of which will be made available to or for the benefit of Tenant prior to issuance of a Release of Construction Covenants, such proceeds shall be used only for construction of the Improvements on the Property, and such other uses, if any, as the Mortgagee may allow under commercially reasonable loan provisions. As used in this Lease, “Release of Construction Covenants” means a written instrument issued by Landlord following completion of the Improvements in material accordance with the approved plans and receipt of all applicable final inspections and approvals.
Landlord shall not unreasonably withhold, condition, or delay issuance of the Release of Construction Covenants and shall issue it within ten (10) business days after receipt of reasonably satisfactory evidence of such completion.
E. Mortgagee’s Right to Cure Lease Defaults.
i) Notice of Tenant’s Failure to Pay or Perform to Be Given to Lender.
Landlord agrees to give to any Mortgagee who so requests in writing of Landlord and furnishes its current notice address to Landlord: (a) a simultaneous copy of any notice of failure to pay or perform that Landlord gives to Tenant hereunder; and (b) the right to cure any failure by Tenant to pay or perform hereunder in accordance with the provisions of Section 12.1; and (c) copies of all approvals or disapprovals granted by the City of Riverside. ii) Mortgagee’s Right to Cure. If Tenant shall fail to pay Rent as and when required hereunder or shall fail to perform any of Tenant’s other obligations hereunder, any Mortgagee shall have the right to cure said failure in accordance with the following provisions:
(a) Monetary Defaults. In case of Tenant’s failure to pay all or any part of any amount of Rent provided for herein, the Mortgagee shall have the right to cure such failure by paying the required amount to Landlord if such cure is effected within thirty (30) days after Landlord notifies the Mortgagee of such failure by a notice separate from the notice referred to in Section 12.1.A., which separate notice may not be given prior to the expiration without cure of Tenant’s applicable cure period under Section 12.1.A, i.e., until an Event of Default by Tenant under that Section.
24 (b) Nonmonetary Defaults. In case of a failure by Tenant to perform any obligation under this Lease other than the obligation to pay Rent, where Tenant is entitled to notice of such failure and the right to cure it, the Mortgagee shall have the right to cure such failure if such cure is effected within thirty (30) days after Landlord notifies the Mortgagee of such failure by a notice separate from the notice referred to in such Sections, which separate notice may not be given prior to the expiration without cure of Tenant’s applicable cure period under such Sections; provided that if (other than by reason of the Mortgagee’s having to obtain possession of the Property) more than the time periods set forth therein are reasonably required to cure the Default, then the Mortgagee shall have the right to cure the Default if such cure is commenced within thirty (30) days after Landlord notifies the Mortgagee of the Default as aforesaid and such cure is thereafter diligently prosecuted to completion; and provided, further, that if the nature of the failure is such that the Mortgagee cannot cure it without obtaining possession of the Property, then the Mortgagee’s time to cure the failure will not start until it obtains possession of the Property if within thirty (30) days following receipt of Landlord’s written notice of Tenant’s default and failure to cure (or as soon thereafter as the Mortgagee is legally allowed to do so, if the Mortgagee is not legally allowed to do so within said period of time), the Mortgagee commences (by filing any necessary court papers) formal legal proceedings to obtain such possession and, to extent allowed by law, thereafter prosecutes such proceedings diligently to conclusion.
F. Additional Rights of Mortgagee. Landlord agrees that Tenant’s Mortgagee or after a foreclosure of the Leasehold Mortgage, the Mortgagee, shall have the following rights in connection with the cure of any default of Tenant under this Lease:
i) The Mortgagee shall be entitled to exercise all rights of Tenant under this Lease;
ii) The Mortgagee shall have the right to enter the Property in order to effectuate cures of any defaults by Tenant under this Lease; subject, however, to the rights of any subtenant of Tenant;
iii) This Lease may not be surrendered, terminated, or amended by mutual future agreement of Landlord and Tenant without the prior written consent of the Mortgagee;
iv) Landlord agrees that, following foreclosure of a Leasehold Mortgage, or conveyance of the leasehold interest under this Lease in lieu of such foreclosure, Landlord will recognize the purchaser at foreclosure or recipient of the conveyance in lieu of foreclosure as the successor Tenant under this Lease;
v) If Mortgagee makes written request therefor within thirty (30) days after Mortgagee’s receipt from Landlord of written notice of termination of this Lease, Landlord will enter into a new lease with Mortgagee or its designee, commencing on the date of termination of the Lease and ending on the scheduled expiration date of this Lease as the same may be extended pursuant to the exercise of the options to extend the Term, at the same rent and upon the same terms and conditions (subject only to adjustment of provisions unique to the original Tenant and 25 impossible of performance by the new Tenant) as this Lease, and with the same priority with respect to any subleases or other interests in the Property as this Lease, provided that Mortgagee or such designee cures all curable defaults under this Lease through the date of termination; vi) If the leasehold estate covering the Property and the underlying fee estate become vested in the same party, there shall be no merger of estates while the Leasehold Mortgage is outstanding;
vii) A Leasehold Mortgage does not constitute an assignment of the Lease to the Mortgagee, or an assumption by the Mortgagee of any of Tenant’s obligations under the Lease until the Mortgagee acquires the leasehold estate upon foreclosure or transfer in lieu thereof;
viii) Upon foreclosure of the Leasehold Mortgage or transfer in lieu thereof, Mortgagee shall succeed to: (i) the interest of Tenant in any unapplied security deposit and any other monies of Tenant then in the possession of Landlord, subject to Landlord’s right to apply such security deposit, or other monies in accordance with this Lease; and (ii) the right to exercise all of Tenant’s rights under the Lease, including, without limitation, the right to exercise any option to extend the term.
G. Curing of Defaults after Foreclosure. Notwithstanding any provision in this Lease to the contrary, the Mortgagee shall not be obligated by the provisions of this Lease to construct or complete the Improvements on the Property or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Lease be construed so to obligate such Mortgagee. Nothing in this Lease shall be deemed to construe, permit, or authorize any such Mortgagee to devote the Property to any uses or to construct any Improvements thereon, other than those uses or Improvements provided for or authorized by this Lease. Nothing contained in this Lease shall be deemed to permit or authorize such Mortgagee to undertake or continue the construction or completion of the Improvements, or any portion thereof (beyond the extent necessary to conserve or protect the Improvements or construction already made) without first having expressly assumed Tenant’s obligations under this Lease, by written agreement reasonably satisfactory to Landlord which election to assume must be made within ninety (90) days following Mortgagee’s securing of title to the leasehold estate. The Mortgagee, in that event, must agree to complete the Improvements; provided, however, that the Mortgagee shall be given a commercially reasonable amount of additional time to complete the Improvements consistent with the intent of this Lease, which commencement of completion of Improvements shall, in no event, occur later than sixty (60) days after Mortgagee’s notice to Landlord of Mortgagee’s election to assume such construction obligations. The completion of such Improvements by the Mortgagee shall be diligently pursued and shall, in no event, be completed no later than two (2) years after commencement by Mortgagee. Any such Mortgagee properly completing the Improvements shall be entitled to a Release of Construction Covenants.
H. Mortgagee’s Right to Sell. If the Mortgagee or any third party acquires title to Tenant’s leasehold estate pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings, such Mortgagee, upon acquiring Tenant’s leasehold estate, may sell and assign the leasehold estate on such terms and to such persons and organizations as are acceptable to such 26 Mortgagee or acquirer. Upon any such transfer, the Mortgagee shall thereafter be relieved of all obligations under this Lease if such assignee has delivered to Landlord its written agreement to be bound by all of the provisions of this Lease. Landlord agrees to provide estoppel certificates, confirmations of subordination, and any other documents which are reasonably requested by the Mortgagee and/or its transferee and which are consistent with the terms of this Lease and applicable law.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Attorneys’ Fees. Should any action or proceeding be commenced by Landlord to enforce the provisions provided in this Agreement, or should any litigation be commenced between the parties to this Agreement concerning said Property, this Agreement, or the rights and duties of either, in relation thereto, all parties shall bear their own attorneys’ fees.
14.2 Notice. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, return receipt requested, by nationally recognized overnight courier, and shall be deemed received upon the earlier of: (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, three (3) business days after the date of posting by the United States post office; and (iii) if sent by nationally recognized overnight courier, one (1) business day after deposit with the courier for next-business-day delivery.
To Landlord: The City of Riverside
Attn: Community & Economic Development Director
3900 Main Street
Riverside, CA 92522
Phone: (951) 826-5556
To Tenant: SPT Energy Base Hub
Jenny Zhang
With a copy to: 2990 Myers Street
Riverside, CA 92503
[email protected]
(858) 603-2663
A. Notice of change of address shall be given by written notice in the manner detailed in this Section. Rejection or other refusal to accept, or the inability to deliver because of changed address of which no notice was given, shall be deemed to constitute receipt of the notice, demand, request, or communication sent.
B. Tenant hereby agrees that service of notice in accordance with the terms of this Agreement shall be in lieu of the methods of service specified in Section 1161 of the California Code of Civil Procedure Section 1161. The provisions of California Code of Civil Procedure Section 1013(a), extending the time within which a right may be exercised or an act may be done, shall not apply to a notice given pursuant to this Agreement. 27 14.3 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
14.4 Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof.
14.5 Amendment of Agreement. The terms of this Agreement may not be modified or amended, except by an instrument in writing executed by each of the Parties hereto.
14.6 Waiver. The waiver by Landlord or Tenant of any agreement, condition, or provision herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other agreement, condition, or provision herein contained, nor shall any custom or practice which may grow up between the Parties in the administration of the terms hereof be construed to waive or to lessen the right of Landlord or Tenant to insist upon the performance by Tenant or Landlord in strict accordance with said terms. The subsequent acceptance of any payment hereunder by Landlord shall not be deemed to be a waiver of any breach by Tenant of any agreement, condition, or provision of this Agreement, other than the failure of Tenant to pay the particular amount so accepted. Specifically, Landlord may accept any payment from Tenant and apply same to any amount owing hereunder notwithstanding any stated intent or instruction on the part of Tenant to the contrary and without waiving or compromising any claim that such payment was less than the payment actually due from Tenant.
14.7 No Merger. The voluntary or other surrender of this Agreement by Tenant, or a mutual cancellation thereof, shall not work as a merger, and shall, at the option of Landlord, terminate all or any existing subleases or sub-tenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases or sub-tenancies.
14.8 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
14.9 Fees and Other Expenses. Except as otherwise provided herein, each of the Parties shall pay its own fees and expenses in connection with this Agreement, including any permit or license fees which Tenant may be required to obtain pursuant to its occupancy.
14.10 Authority to Execute Agreement. Landlord and Tenant represent and warrant that the individuals who have signed this Agreement have the legal power, right, and authority to enter into this Agreement so as to bind each Party for whom they sign to perform as provided herein.
14.11 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. Tenant shall be responsible for the acts or omissions of its sub-Tenant(s), if any.
28 14.12 Incorporation of Exhibits. Each of the Exhibits to this Agreement is incorporated by reference as though fully set forth herein.
14.13 Entire Agreement. This Agreement supersedes any prior agreements, negotiations, and communications, oral or written, and contains the entire agreement between Tenant and Landlord as to the subject matter hereof. No subsequent agreement, representation, or promise made by either Party hereto, or by or to any employees or agents of either Party, shall be of any effect, unless it is in writing and executed by the party to be bound thereby.
14.14 Memorandum of Lease. Tenant shall have the right to record a Memorandum of Lease in the form attached hereto as Exhibit “D” and incorporated herein by reference. [SIGNATURES ON FOLLOWING PAGE.]
29 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the calendar day and year written below.
LANDLORD:
CITY OF RIVERSIDE, a California
charter city and municipal corporation
By: ____________________________
City Manager
ATTEST:
By: _____________________________
City Clerk
By:______________________________
Department Head
APPROVED AS TO FORM:
By: ____________________________
Assistant City Attorney
TENANT:
SPT ENERGY BASE HUB, a California
corporation
By: ____________________________
Title: Chairman & CEO
Printed Name: Lei Cheng
9/24/26 SDW 314674
Execution Copy
EXHIBIT “A”
PROPERTY LEGAL DESCRIPTION AND PLAT
(Inserted behind this page)
EXHIBIT “B”
ACCEPTANCE MEMORANDUM
Pursuant to Section 1.3 of the Commercial Lease Agreement dated on or about ___________________, _____ (the “Lease”) between City of Riverside, a California charter city and municipal corporation (“Landlord”) and SPT Energy Base Hub, a California corporation (“Tenant”), and all defined terms stated therein, with respect to the Property, Landlord and Tenant acknowledge and agree that for all purposes in the Lease:
1. The Lease Effective Date is ______________, ______, and Tenant has accepted possession of the Property as of the Lease Effective Date.
2. The Rent Commencement Date is 12 months after the date of the issuance of the building permit by the appropriate governmental agency or fifteen months after the Effective Date, whichever is earlier, which is __________________.
3. The Expiration Date of the initial Term is ______________, _____ (10 years after Lease Commencement Date). Tenant has one five-year option to extend the Lease Term and Expiration Date. If Tenant exercises the Extension Option then the Expiration Date will be ___________, ____ (15 years after Lease Commencement Date).
When signed by Landlord and Tenant, this Acceptance Memorandum is attached to and incorporated in the Lease as Exhibit B, shall replace the form of Exhibit B attached to the Lease as of the Lease Date and the Lease is amended to be consistent with this Acceptance Memorandum.
Dated: __________________, 20
Landlord: City of Riverside,
a California charter city and municipal corporation
By: _______________________________
Name: _______________________________
Title: _______________________________
Tenant:
SPT Energy Base Hub, a California corporation
By: _____________________________
Name: _______________________________
Title: _______________________________
EXHIBIT “C”
APPLICATION INFORMATION
https://riversideca.gov/cedd/sites/riversideca.gov.cedd/files/pdf/planning/forms/2023/DEVELOP MENT%APPLICATION%20INFORMATION
EXHIBIT “D”
MEMORANDUM OF LEASE
WHEN RECORDED MAIL TO:
City Clerk
City of Riverside
City Hall, 3900 Main Street
Riverside, CA 92522
1.30 Acres Vacant Land – 670 Iowa
Avenue, Riverside, California, Riverside
County Assessor Parcel Number
247-150-007
FREE RECORDING
This instrument is for the benefit of the City of
Riverside and is entitled to be recorded without fee
(Government Code § 6103)
For Recorder’s Office Use Only
MEMORANDUM OF LEASE
This MEMORANDUM OF LEASE (“Memorandum”) is hereby made as of this _____ day of, by and between the City of Riverside, a California charter city and municipal corporation (“City”) and SPT Energy Base Hub, a California corporation (“Lessee”).
W I T N E S S E T H T H A T:
WHEREAS, City and Lessee entered into that certain Commercial Lease Agreement dated as of ________________ (hereinafter, the “Lease”), for those certain premises more particularly described on Exhibit A, attached hereto and incorporated herein (the “Property”); WHEREAS, City and Lessee make this Memorandum pursuant to the laws of the State of California and desire that this Memorandum be recorded in the Official Records of the County of Riverside, California. The following is a correct statement of information with respect to such Lease and of provisions therein contained.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Lessee hereby agree as follows:
1. The term of the Lease is ten (10) years, with one (1) option to extend the term for an additional five (5) years. The Term of the Lease is estimated to commence on ____________, _________. 2. Subject to the terms and conditions more particularly set forth in the Lease, Lessee is granted a limited Right of First Refusal to lease the Property after expiration of the Lease term.
3. Reference is made to the Lease for a full statement of the terms and conditions of the Lease, all of which are hereby incorporated by reference.
4. Nothing in this Memorandum may be construed to amend, modify, change, alter, amplify, interpret or supersede any of the terms and provisions of the Lease, which shall in all things control.
IN WITNESS WHEREOF, City and Lessee have executed this Memorandum as of the day and year first above written.
CITY: LESSEE:
CITY OF RIVERSIDE, a California SPT ENERGY BASE HUB, a California corporation charter city and municipal corporation
By: _________________________ By:
City Manager Name:
Title:
ATTEST:
By: ____________________________
City Clerk
APPROVED AS TO FORM: ______________________________ Assistant City Attorney