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ELECTRONICALLY FILED
Superior Court of California,
MARY C. RICHARDSON, ESQ. #208586 County of Alameda
PORT ATTORNEY
KIMBERLY I. MCINTYRE #184648 04/30/2024 at 02:46:43 PM
DEPUTY PORT ATTORNEY iy: Sandra Rodriguez,
530 Water Street, 4th Floor Deputy Clerk
Oakland, CA_ 94607
Telephone: (510) 627-1205
kmeintyre@portoakland.com
RAMSEY LAW GROUP
HUSSEIN SAFFOURI — 177863
3738 Mt. Diablo Blvd., Suite 201
Lafayette, CA 94549
Telephone: (925) 284-2002
Facsimile: (925) 402-8053
hussein@ramseylawgroup.com
10 Attorneys for Plaintiff City of Oakland, EXEMPT FROM
a Municipal Corporation, Acting By and FILING FEES
11 Through Its Board of Port Commissioners PER GOV. CODE
SECTION 6103
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF ALAMEDA
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UNLIMITED CIVIL DIVISION
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CITY OF OAKLAND, a Municipal No. 24CVOrseagder
17 Corporation, Acting By and Through Its
Board of Port Commissioners, COMPLAINT FOR UNLAWFUL
18 DETAINER
Plaintiff,
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V.
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GAIACA, LLC, a California limited
21 liability company doing business as
GAIACA WASTE REVITALIZATION,
22 COURTSMITH BASKETBALL
INDUSTRIES INC., a California
23 corporation and DOES 1 through 20,
inclusive,
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Defendants.
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City of Oakland, a Municipal Corporation, Acting By and Through Its Board of
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Port Commissioners, alleges:
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COMPLAINT FOR UNLAWFUL DETAINER
1 Plaintiff City of Oakland, a Municipal Corporation, Acting By and Through Its
Board of Port Commissioners (“Plaintiff”) is the lessor of certain commercial premises located at
424 Pendleton Way, Oakland, CA 94621, as further described in the Lease (the “Premises”).
2 Defendant GAIACA, LLC, a California limited liability company doing business
as GAIACA Waste Revitalization (“GAIACA”), is the lessee under that certain License and
Concession Agreement dated as of October 1, 2022 (“Lease”), a true and correct copy of which
is attached as Exhibit A and incorporated by reference.
3 Plaintiff is informed and believes, and on that basis alleges, that defendant
COURTSMITH BASKETBALL INDUSTRIES INC., a California corporation (“Courtsmith”),
10 is in possession of the Premises under a document titled Sublicense Agreement naming
11 GAIACA as “licensee” and Courtsmith as “sublicensee” and dated as of May 12, 2023,
12 purporting to be a sublease of a portion of the Premises, a true and correct copy of which is
13 attached as Exhibit B and incorporated by reference.
14 4 The Lease provides that in any action arising out of or in connection with the
15 Lease, the prevailing party shall be entitled to recover from the losing party reasonable attorneys
16 fees and costs of suit.
17 5 The true names of defendants DOES 1 through 20, inclusive, are unknown to
18 Plaintiff, who therefore sues said defendants by such fictitious names. Plaintiff is informed and
19 believes and thereon alleges that each of the defendants designated as a DOE is in some manner
20 responsible for the events alleged herein, and by such actions caused damage to Plaintiff as
21 alleged herein. Plaintiff will ask leave of Court to allege their true names and capacities when the
22 same have been ascertained.
23 6 Plaintiffis informed and believes, and thereon alleges, that the defendants, and
24 each of them, in doing the acts alleged herein, were acting as the agents, representatives,
25 servants, employees, assignees and/or partners of each of the other defendants, and were acting
26 within the course and scope of their employment, agency, assignment or partnership and with the
27 full knowledge and consent of each of the other defendants.
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COMPLAINT FOR UNLAWFUL DETAINER -2-
7 Prior to the filing of this complaint, defendants went into possession of the
Premises and continue to possess them.
8 Defendant GAIACA breached the Lease by failing to pay rent and charges due
under the Lease for July 2023 to April 2024 in the total sum of $97,850.00.
9 On or about April 23, 2024 by Fed-Ex pursuant to the terms of the Lease, and on
or about April 24, 2024 by posting on the Premises, Plaintiff served a written Three-Day Notice
to Pay Rent or Quit (the “Notice”). A true and correct copy of the Three-Day Notice and proofs
of service thereof are attached as Exhibit C and incorporated by reference.
10. More than three days elapsed since service of the Notice and defendants neglected
10 and refused to pay the sum due or to vacate and deliver up possession of the Premises to
11 Plaintiff.
12 11. As a result of defendants’ failure to vacate and deliver up possession of the
13 Premises, Plaintiff will sustain damages in the amount of the reasonable rental value of the
14 Premises, to wit: $321.70 per day from May 1, 2024, and will continue to sustain damages at
15 said rate for as long as defendants remain in possession of the Premises.
16 WHEREFORE, Plaintiff prays for judgment against the defendants as follows:
17 1 For restitution and possession of the Premises;
18 2 For forfeiture of the Lease;
19 3 For rent and other charges of $97,850.00;
20 4 For damages in the amount of $321.70 per day from May 1, 2024 for each day
21 that defendants continue to possess the Premises, or until the date of judgment, whichever is
22 sooner;
23 5 For reasonable attorneys’ fees;
24 6 For costs; and
25 7 For such other and further reliefas the Court deems just and proper.
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COMPLAINT FOR UNLAWFUL DETAINER -3-
DATED: April 30, 2024 RAMSEY LAW GROUP
p
By
HUSSEIN SAFFOURI
Attorneys for Plaintiff City of Oakland, a
Municipal Corporation, Acting By and Through Its
Board of Port Commissioners
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COMPLAINT FOR UNLAWFUL DETAINER -4-
VERIFICATION
I, Jonathan Veach, am the Chief Real Estate Officer for the City of Oakland, a
Municipal Corporation, Acting By and Through Its Board of Port Commissioners, the plaintiff in
the above-entitled action and am authorized to make this verification for and on its behalf. I have
read the foregoing Complaint For Unlawful Detainer and know its contents. I am informed and
believe and on that ground allege that the matters stated in it are true and correct.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, and was executed at Oakland, California.
Dated: April 30, 2024
10
Jonathan Veatch
Jonathan Veach (Apr 30, 2024 12:39 PDT)
11 Jonathan Veach
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COMPLAINT FOR UNLAWFUL DETAINER -5-
EXHIBIT A
LICENSE AND CONCESSION AGREEMENT
between
CITY OF OAKLAND, A MUNICIPAL CORPORATION,
ACTING BY AND THROUGH ITS BOARD OF PORT COMMISSIONERS
as the "Port"
and
GAIACA, LLC,
a California Limited Liability Company doing business as
GAIACA WASTE REVITALIZATION
as "Licensee"
October 1, 2022
GAIACA, LLC
LICENSE AND CONCESSION AGREEMENT
LEGAL-1655924562-5136
TABLE OF CONTENTS
SECTION PAGE
DESCRIPTION OF PREMISEB.....
TERM.....
PERFORMANCE DEPOSIT; MONTHLY RENTAL. eee
U SE OF PREMISES; COMPLIANCE
SE A EMEA NEE WITH
WEEE APPLICABLE
APELICABLE LAWS.
LAWS.
NO VENDING MACHINEG. ....... aeeaseneaes aoeaseneaee 4
COMMERCIAL CHARGES. ... eesesen
LICENSEE'S TAXES. ........scsessssesons
SIGNS. .....
9. PROMOTION OF PORT AND FACILITIES. ....... oenees
10. CONDITION OF PREMISES.
i M. (AINTENANCE AND
SOR REPAIRS; ALTERATIONS
AREER AR IERALIONS AND
AND ADDITIO!
ADDITIONS. NS
12 TITLE TO IMPROVEMENTS.
13 EXCULPATION AND INDEMNIFICATIO
14. INSURANCE........
15. HAZARDOUS SUBSTANCEBG. ..............
16. DEFAULT...
17. RIGHT OF ENTRY AS AGENT. 10
18. SURRENDER AND HOLDING OVER. 10
19. DESTRUCTION OF PREMISES. 12
20. SECURITY AND PROTECTION OF PREMISES.. 12
21 WAIVERS... 12
22. ASSIGNMENT AND SUB-LICENSE PROHIBITED... . 12
23 NTRY, INSPECTION AND CLOSURE; LICENSEE'S RECORDS. 14
24. PREMISES TO BE KEPT CLEAN. ........... 15
25. FIRE EXTINGUISHERS. 15
26. EQUAL OPPORTUNITY; NONDISCRIMINATION. 16
27. CONSENTS AND APPROVALS. 18
28, BUILDING PERMITS. 18
29. UTILITIES. 18
30. NO RELOCATION ASSISTANG E OR BENEFITS... 19
31 ATTORNEYS' FEES AND COSTS... 19
GAIACA, LLC
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LICENSE AND CONCESSION AGREEMENT Page 1
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TERMINATION, 19
32.
SUCCESSORS. 19
33.
20
34. NO INTEREST IN LAND CREATED. ...
TIME OF ESSENCE. 20
35.
36 NOTIC 20
AGREEMENT IN MULTIPLE COPIES 21
37.
ADDITIONAL PROVISIONS...... 21
38.
TOXIC MATERIALS. ...... 21
39.
MODIFICATIONS... 21
40.
DISPUTE RESOLUTION. 21
41.
AGAINST CONTINGENT FEES 21
42, COVENANT
REQUIREMENTS. 22
43. PREVAILING WAGE
WAIVER OF CLAIMS. ... 22
44.
THE PORT'S LIABILITY....... 22
45.
MISCELLANEOUB...... 23
46.
EXHIBITS
EXHIBIT A — Licensee and Licensee's Notice Address
EXHIBIT B-1 — Description of Premises
EXHIBIT B-2 — Sketch of Property
EXHIBIT C - Term of Agreement
EXHIBIT D — Deposit and Monthly Rental
EXHIBIT E — Use of Premises
EXHIBIT F - Environmental Responsibilities
EXHIBIT G - Exceptions
EXHIBIT H - Licensee Insurance Requirements
EXHIBIT I - Additional Provisions
EXHIBIT J — Form of Letter of Credit
GAIACA, LLC ‘Table of Contents
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LICENSE AND CONCESSION AGREEMENT
LEGAL-1655924562-5136
THIS LICENSE AND CONCESSION AGREEMENT (this "Agreement") is made by and
between the City of Oakland, a municipal corporation, acting by and through its Board of Port Commissioners
(the "Port"), and the licensee identified on Exhibit A attached hereto ("Licensee"), for the premises set forth
on Exhibit B-1 attached hereto (the "Premises").
1 Description of Premises.
The description of the Premises is set forth on E: it B-1 attached hereto. A sketch of the
Premises is attached hereto as Exhibit B-2.
2. Term.
The term of this Agreement (the "Term") is set forth on Exhibit C attached hereto.
Performance Deposit; Monthly Rental.
(a) Performance Deposit. Licensee shall, not later than the Commencement Date,
deposit with the Port and during the entire Term shall maintain with the Port a deposit as specified on
Exhibit D attached hereto which deposit will be retained by the Port as a performance deposit (the
“Performance Deposit") and may be applied by the Port to pay the cost of any of the following: (a)
restoration and cleaning of the Premises to restore them to the condition required under Section 1(a) below
of this Agreement; (b) repair of any damage to the Premises caused by Licensee's occupancy; (c)
replacement of any improvements which are the property of the Port and which have been damaged,
removed or otherwise misplaced during the Term; or (d) the payment of any other outstanding amounts due
the Port from Licensee pursuant to any of the provisions of this Agreement, including the Monthly Rental
(as defined in Section 1(b) below). The Performance Deposit shall be cash or an irrevocable letter of credit
in the form attached hereto as Exhibit J or such successor form as the Port may from time to time require
by written notice to Licensee (a "Letter of Credit"), issued by a bank ("Issuer") located within the
continental United States, acceptable to the Port and with a branch office located in Oakland or San
Francisco, California, at which such Letter of Credit may be drawn. (Letters of credit issued through
correspondent banks will not be accepted.) The Letter of Credit shall provide that it shall be automatically
renewed, without amendment, for consecutive periods of one (1) year each during the Term, unless Issuer
sends written notice ("Issuer Notice") to the Port (with a simultaneous copy to Licensee) by any method
specified for giving of notices under this Agreement, as amended, not less than ninety (90) days preceding the
then-expiration date of the Letter of Credit that it elects not to have such Letter of Credit renewed. If the Port
receives an Issuer Notice, and Licensee fails to furnish the Port with a replacement Letter of Credit pursuant
to and meeting the conditions of this Section on or before the date sixty (60) days prior to the expiration date
of the Letter of Credit, then the Port shall have the right to draw the full amount of the Letter of Credit and
hold or apply such amount as a cash Performance Deposit. In the event the Port is required to utilize the
Performance Deposit or any portion thereof during the Term for the purposes hereinabove set forth,
Licensee shall deposit with the Port an additional sum or a replacement Letter of Credit sufficient to restore
the Performance Deposit to the amount hereinabove set forth. Licensee waives the provisions of Section
1950.7 of the California Civil Code to the extent that such Section provides that the Performance Deposit
can be applied only to remedy certain defaults by Licensee or is otherwise inconsistent with this Section
i(a), it being the parties' intention that this Section 1(a) shall be controlling. The Performance Deposit or
any remaining portion thereof shall be returned to Licensee within ninety (90) days after the termination of
this Agreement, after deduction of any amounts therefrom for payment of the hereinabove described
charges. The payment or delivery of the Performance Deposit by Licensee shall not limit Licensee's liability
to the Port for the payment of amounts due the Port by Licensee in excess of the amount of the Performance
GAIACA, LLC
dba GAIACA WASTE REVITALIZATION
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accept,
Deposit. The Port, however, at the request of Licensee and at the Port's sole discretion, may elect to
in lieu of said cash Performance Deposit provided for hereinabove or Letter of Credit, such other security
cash
that the Port may determine to be substantially equivalent to or a satisfactory substitute for said
Performance Deposit or Letter of Credit.
(b) Monthly Rental. As a monthly license fee (the "Monthly Rental"), Licensee
deduction,
shall pay in lawful money of the United States of America, in advance and without abatement,
forth on Exhibit D attached hereto. The Monthly Rental for the
offset or previous demand, the amount set
calendar month (or, if the Commence ment Date falls on a date other the e first day of a calendar
first full
calendar month) shall be due and payable on the Commencement Date, and
month, the first partial
each and every
thereafter, the Monthly Rental shall be due and payable in advance on the first day of
Rental shall be paid to the Port at the following address:
calendar month during the Term. Al!l Monthly
5, or at such other place or to such other person
Port of Oakland, P.O. Box 12545, Oakland, CA 94604-254
ment Date is other than the first day of a calendar
as the Port may designate in writing. If the Commence
quits and
month, or if the Term expires on a date other than the final day of a calendar month and Licensee
then the Monthly Rental for such month shall
surrenders the Premises in compliance with this Agreement,
be appropriately prorated.
© Delinquency Charge. Any Monthly Rental or other sums provided for hereunder
remain
(all of which sums constitute rent that Licensee shall pay in addition to the Monthly Rental) that
due and unpaid under the terms of this Agreement for a period of ten (10) days after they become due and
of all of
payable shall be subject to a delinquency charge, for violation of this Agreement and for damages,
the following: (1) a one-time charge of One Hundred Dollars ($100.00) per delinquent sum; and (2) a one-
time five percent (5%) charge of the amount per delinquent sum; and (3) a sum equal to five one-hundredths
interest rate
of one percent (0.05%) per day of such delinquent sum (but not to exceed the maximum
permitted by applicable law) for each day from the date such payment became due and payable until
payment has been received by the Port. U npaid delinquency charges that accrue shall be compound ed
accrued delinquen cy charges
monthly. The Port shall apply any monies received from Licensee first to any
Section 1(c)
and then to any other rental or other sums then due. The delinquency charges provided by this
by this Agreement or otherwise
are in addition to all other remedies that the Port may have that are provided
not been paid. The
by law to enforce payment of any rental or other sum that has become due and has
and Licensee, after
delinquency charges provided by this Section 1(c) have been agreed upon by the Port
negotiation, as a reasonable estimate of the additional adm istrative costs and detriment that will be
thereof being
incurred by the Port as a result of any such failure to pay by Licensee, the actual costs
extremely difficult if not impossible to determine. Such delinquency charges constitute liquidated damages
to be interest
to compensate the Port for its damages resulting from such failure to pay, are not intended
and shall be paid to the Port together with such unpaid amounts.
(@) Partial Payment. No payment by Licensee or receipt by the Port of a lesser
earliest
amount of rental or any other sum due hereunder shall be deemed to be other than on account of the
any endorsemen t or statement on any check or any letter accompany ing
due rental or payment, nor shall
and satisfactio n, and the Port may accept such check or
any such check or payment be deemed an accord
in this Agreement , at law or in equity. The Port may accept
payment and pursue any other remedy available
herein
any partial payment from Licensee without invalidation of any contractual notice required to be given
without invalidatio n of any notice required to be given
(to the extent such contractual notice is required) and
pursuant to California Code of Civil Procedure Section 1161, et seq., or of any successor statute thereto.
GAIACA, LLC
dba GAIACA WASTE REVITALIZATION
LICENSE AND CONCESSION AGREEMENT
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4. Use of Pre: s; Compliance with Applicable Laws.
a) Use of Premises. The Premises shall be used for those purposes expressly set forth
on Exhibit E attached hereto and for no other use or purpose. Licensee shall not do, bring, keep or sell
anything in or about the Premises that is prohibited by, or that will cause a cancellation of or an increase in
the existing premium for, any insurance policy covering the Premises or any part thereof. Licensee shall
not permit the Premises to be occupied or used in any manner that will constitute waste or a nuisance, or
disturb the quiet enjoyment of or otherwise annoy tenants or other licensees located in the vicinity of the
Premises. The use of the Premises for residence or dwelling purposes is prohibited. Licensee shall not
occupy, use or appropriate any space, premises or land other than or outside of the Premises.
(b) Compliance with Applicable Laws.
wi Licensee, at Licensee's cost and expense, shall comply with all present and
future Applicable Laws relating to the Premises, or the use, improvement or occupancy thereof.
(ii) For purposes of this Agreement, "Applicable Laws" means all laws,
ordinances, resolutions, orders, writs, decrees, judgments, rulings, policies, plans, programs, general rules
or regulations, codes, professional standards, permits, or land use restrictions or limitations at any time
applicable thereto of any governmental authority, including the City of Oakland, the Port, the Bay Area Air
Pollution Control District, the San Francisco Bay Conservation and Development Commission, and the
Secretary of the Army, including the Federal Drug-Free Workplace Act of 1989, The Charter of the City of
Oakland (including Section 728 entitled "Living Wage and Labor Standards at Port-Assisted Businesses"
and Port Ordinance No. 3666 entitled "An Ordinance Establishing a Living Wage Requirement"), and any
laws, ordinances, resolutions, orders, writs, decrees, judgments, rulings, policies, plans, programs, general
rules or regulations, codes, professional standards, permits, or land use restrictions or limitations relating to
human or public health, air pollution control, the environment, water, sanitation, safety or welfare, the filling
of or discharges to the air or water, navigation or use of the harbor, or aerial navigation or use of the Oakland
International Airport (the Airport") and its facilities. Notwithstanding the foregoing, Applicable Laws shall
not include federal law only to the extent that such federal law is inconsistent with California law directly
related to the distribution of Cannabis, as that term is defined in the California Medicinal and Adult-Use
Cannabis Regulation and Safety Act (Bus. & Prof. Code § 26000 et seq.) or any successor statute
(“MAUCRSA”).
(c) Waiver and Release. Licensee does hereby waive and release the Port Parties (as
defined below) from any and all claims, known or unknown, including claims of negligence, and I lity
that may arise from any act or failure to act by the Port Parties in connection with the Port Parties! providing
advice, guidance, or assistance to Licensee or any other licensee, sub-licensee or assignee regarding
compliance with any Applicable Laws including the following actions or activities: furnishing educational
materials to and organizing meetings for licensees; explaining the alleged requirements of any Applicable
Laws, the regulations promulgated pursuant thereto, or the terms and conditions or means of complying
with any permits required by or issued pursuant to any Applicable Laws; preparing or furnishing draft
Storm Water Pollution Prevention Plans or Group Monitoring Plans, or acting as leader of any Group
Monitoring Plan. "Port Parties" as used herein shall include the Port and all of its officers, commissioners,
agents, departments, officials, representatives and employees, or any person claiming through or under the
Port.
GAIACA, LLC
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5. Vending Machines.
firm or
Licensee shall not sell, serve or vend, nor shall Licensee permit another person,
corporation to sell, serve or vend any food or food products, alcoholic or nonalcoholic beverages, cigarettes,
otherwise, nor
cigars or tobacco on the described premises through coin operated vending machines, or
shall Licensee operate or maintain or permit to be operated or maintained on the described premises any
coin operated non-merchandising machines.
6. Intentionally Omitted].
7. Licensee's Taxes.
charges
"Licensee's Taxes" means: (a) all taxes, assessments, fees and other governmental
or upon any
or impositions levied or assessed against or with respect to the license granted hereunder,
, any interest in this Agreement or any possessory right which
activity carried on under this Agreement
Licensee may have in or to any property covered hereby by reason of its use or occupancy thereof or
otherwise; (b) all taxes, assessments, license fees and other government al charges or impositions levied or
property or Trade Fixtures (as defined below) in the
assessed against or with respect to Licensee's personal
Premises or related to Licensee's possession, licensing, operation, managemen t, maintenanc e, alteration,
against
repair, use or occupancy by Licensee of the Premises, whether any such imposition is levied directly
Licensee or levied against the Port or the Premises or the real property on which the Premises are located
this Agreement
(the "Property"); (c) all rental, excise, sales or transaction privilege taxes arising out of
(excluding, however, state and federal personal or corporate income taxes measured by the income of the
Port from all sources) imposed by any taxing authority upon the Port or upon the Port's receipt of any rental
Tax"); and (d) any increase in laxes
payable by Licensee pursuant to the terms of this Agreement ("Rental
(as defined below) attributable to inclusion of a value placed on Licensee's personal property, Trade
Fixtures or Alterations (as defined 1(b) below). Licensee shall pay any Rental Tax to the Port in addition
all other
to and at the same time as the Monthly Rental is payable under this Agreement, and shall pay
Licensee's Taxes before delinquency (and, at the Port's request, shall furnish the Port satisfactory evidence
upon
thereof). If the Port pays Licensee's Taxes or any portion thereof, Licensee shall reimburse the Port
demand for the amount of such payment. "Taxes" means: (i) all federal, state, county, or local
governmental or municipal taxes, fees, charges or other impositions of every kind, nature or origin, whether
connection with
general, special, ordinary or extraordinary, imposed on or by reason of, or because of or in
general
the ownership, use, leasing or operation of the Premises or Property (including real estate taxes,
of rent
and special assessments, transit taxes, business taxes, leasehold taxes or taxes based upon the receipt
unless
or license fees, including gross receipts or sales taxes applicable to the receipt of rent or license fees,
required to be paid by Licensee; (ii) personal property taxes imposed upon the fixtures, machinery,
used
equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property
or Property, or any portion thereof; (iii) service payments in lieu of taxes
in connection with the Premises
to, in lieu of
and taxes and assessments of every kind and nature whatsoever levied or assessed in addition
or
or in substitution for existing or additional real or personal property taxes on the Premises or Property
(iv) any increases in the foregoing caused by changes in assessed
the personal property described above; and
valuation, tax rate or other factors or circumstances). "Trade Fixtures" means furnishings, equipment,
movable partitions, business equipment and other trade fixtures.
8. Signs.
Licensee shall not install, paint, inscribe or place any signs or placards either in or upon
the Premises without the prior written consent of the Port. Licensee, at its own expense, shall remove or
GAIACA, LLC
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LEGAL-1655924562-5136
paint over, to the satisfaction of the Port, promptly upon termination of this Agreement, any and all signs
or placards installed, painted, inscribed or placed by it upon the Premises; and should Licensee fail to so
remove or paint over such signs or placards, the Port may do so at the expense of Licensee, and Licensee
shall reimburse the Port for the cost thereof upon demand.
9. Promotion of Port and Fac ies.
Licensee shall in good faith and with all reasonable diligence employ its best endeavors
and all practical means to promote and aid the development of the commerce of the Port and the use of its
facilities.
10. Condi n of Premi: S.
(a) By taking possession of the Premises, Licensee agrees that the Premises are then
in a good condition, and Licensee accepts the Premises in its presently existing condition, "as is," and that
the Port shall not be obligated to make any improvements or modifications thereto except to the extent
otherwise expressly provided in this Agreement. Licensee represents and acknowledges that it has made a
sufficient investigation of the conditions of the Premises existing immediately prior to commencement of
use of the Premises and is satisfied that the Premises are fully fit physically and lawfully for the uses
required and permitted by this Agreement and that Licensee accepts all risks associated therewith.
(b) Licensee specifically acknowledges that except as otherwise may be expressly
provided herein the Port has made no representations, warranties or promises, express or implied, concerning
the condition of the Premises or any improvements, the fitness of the Premises or any improvements for
Licensee's intended use, or the compliance of the Premises or any improvements with any federal, state, or
local building code or ordinance or with any laws or regulations or guidelines regarding disabled or
handicapped persons, including the Americans With Disabilities Act of 1990, and Licensee expressly waives
any duty which the Port might have to make any such disclosures. Licensee further agrees that, in the event
Licensee sublicenses all or any portion of the Premises or assigns its interest in this Agreement, Licensee will
indemnify and defend the Port for, from and against any matters which arise as a result of Licensee's failure to
disclose any relevant information about the Premises to any sublicensee or assignee.
(© A Certified Access Specialist (‘CASp”, as defined in California Civil Code
Section 55.52) has not inspected the Premises or the Property. Licensee acknowledges the foregoing
information and agrees that such statement is merely a statement of fact and is not an admission, covenant,
representation, or warranty made by the Port for the benefit of Licensee and Licensee’s employees, agents,
contractors, customers, or other invitees as to the condition of the Premises, Property, or any other property
owned or controlled by the Port. As required by California Civil Code Section 1938, the Port provides the
following notification:
“A Certified Access Specialist (CASp) can inspect the subject premises and determine
whether the subject premises comply with all of the applicable construction-related
accessibility standards under state law. Although state law does not require a CASp inspection
of the subject premises, the commercial property owner or lessor may not prohibit the lessee
or tenant from obtaining a CASp inspection of the subject premises for the occupancy or
potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties
shall mutually agree on the arrangements for the time and manner of the CASp inspection, the
payment of the fee for the CASp inspection, and the cost of making any repairs necessary to
correct violations of construction-related access ility standards within the premises.”
GAIACA, LLC
dba GAIACA WASTE REVITALIZ/ ON
LICENSE AND CONCESSION AGREEMENT
LEGAL-1655924562-5136
11. Maintenance and Repairs; Alterations and Additions.
(a) Maintenance and Repairs.
@ Licensee shall, at its sole cost and expense, keep and maintain the Premises
and appurtenances thereto and every part thereof, including all windows and other glass, doors and
skylights, and the interior of the Premises, in good, clean and sanitary order, condition and repair; provided
in any
that Licensee shall not be required to maintain or repair any areas which are listed as exceptions
provision of Exhi G attached hereto which provision has been indicated to be applicable to this
Agreement by the placement of a checkmark to the immediate left of such provision. The Port shall, at its
sole cost and expense, repair, keep and maintain in good condition: (a) the foundations, support for the roof,
the load-bearing walls, and structural columns of the Premises; (b) to the extent any damage is solely caused
by the Port’s gross negligence or willful misconduct, the exterior of the Premises; and (c) the roof (including
the roof membrane). Subject to the terms and conditions of Section 7 of Exhibit F (Environmental
Responsibi ities) hereto, Licensee's obligations under this Section shall apply in all cases, including
circumstances such as required maintenance, cleanup or remediation of any condition, contamination,
pollution or nuisance caused by unknown parties or by known parties other than the Port or the Port's agents.
(ii) If any repairs or maintenance of exterior walls and roofs are required as
(as
the result, in part or in whole, of the act, neglect, fault or omission of any duty by Licensee Parties
defined below), then Licensee shall pay to the Port the Port's cost of such repairs and maintenance.
"Licensee Parties" as used herein shall include Licensee and all entities that are shareholders, trustees,
members, partners, venturers, direct or indirect owners, parents, subsidiaries, affiliated entities, successors,
Licensee,
assigns, beneficiaries, representatives, agents, contractors, sublicensees, visitors and invitees of
or any person or entity claiming through or under Licensee, and all individuals who occupy any of the
foregoing capacities with respect to Licensee or any such entity, or who are officers, directors, employees
or servants of any of the foregoing.
(iii) The Port shall not be liable for any failure to make any repairs or perform
any maintenance for which the Port is responsible hereunder unless such failure (i) shall persist for an
unreasonable amount of time after written notice of the need for such repairs or maintenance is given to the
Port by Licensee and (ii) is due solely to causes within the Port's reasonable control. The Port shall not be
liable for any damage or loss to any property on the Premises, or any loss of business by Licensee, which
arises out of any need for repair or maintenance of the Premises.
Should Licensee fail to perform any repairs or maintenance it is obligated
(iv)
to perform hereunder, the Port shall have the option, but not the obligation, to perform such repairs or
f
of Licensee,
maintenance on behal and Licensee shall immediately reimburse the Port for the cost thereof.
The performance of such repairs or maintenance by the Port shall in no event be construed as a waiver of
the duty of Licensee to repair and maintain the Premises as herein provided.
(vy)As a material part of the consideration for this Agreement, Licensee
hereby waives any right to make repairs at the expense of the Port and waives the benefit of the provisions
of any existing or future Applicable Laws which purport to create such a right, including if ever deemed
applicable to this Agreement, Sections 1932(1), 1941 and 1942 of the California Civil Code relating thereto.
(b) Alterations and Add 1s,
GAIACA, LLC
dba GAIACA WASTE REVITALIZATION
LICENSE AND CONCESSION AGREEMENT.
LEGAL-1655924562-5136
@ Licensee shall not make any alterations, additions, improvements, changes
or betterments (collectively, "Alterations") to the Premises without first obtaining the prior written
approval of the Port, and, at its own cost and expense, all necessary approvals and permits, including all
necessary building, electrical or plumbing permits from the City of Oakland, and any necessary approvals
and permits from the San Francisco Bay Conservation and Development Commission. Any such
Alterations shall be completed by Licensee at Licensee's sole cost and expense: (i) with due diligence, in
a good and workmanlike manner, using new materials; (ii) in compliance with plans and specifications
approved by the Port in writing; (iii) in compliance with the construction rules and regulations promulgated
by the Port from time to time; (iv) in accordance with all Applicable Laws (including all work, whether
structural or non-structural, inside or outside the Premises, required to comply fully with all Applicable
Laws and necessitated by Licensee's work); and (v) subject to all conditions which the Port may in its
discretion impose. Such conditions may include requirements for Licensee to: (A) provide payment or
performance bonds or additional insurance (from Licensee or Licensee's contractors, subcontractors or
design professionals); (B) use contractors or subcontractors designated by the Port; and (C) remove all or
part of the Alterations prior to or upon expiration or termination of the Term, as designated by the Port.
The Port's right to review and approve (or withhold approval of) Licensee's plans, drawings, specifications,
contractor(s) and other aspects of construction work proposed by Licensee is intended solely to protect the
Port, the Premises and the Port's interests. No approval or consent by the Port shall be deemed or construed
to be a representation or warranty by the Port as to the adequacy, sufficiency, fitness or suitability thereof
or compliance thereof with Applicable Laws or other requirements.
(ii) Licensee shall not paint the Premises or any portions thereof without the
prior written approval of the Port with respect to the method and color of such painting.
(iii) Licensee warrants that any Alterations proposed by Licensee, if constructed
or installed consistently with the plans and specifications approved by the Port, will comply with all laws and
regulations regarding disabled or handicapped persons, including the Americans With Disabilities Act of 1990.
Licensee shall comply with all terms and conditions of permits whether secured by Licensee or the Port.
(iv) Upon Licensee's completion of any Alterations within the Premises, Licensee
shall submit to the Port a copy of any certificate or permit which may be required by any federal, state, city or
other governmental agency in connection with the completion or occupancy of said Alterations by Licensee.
Licensee shall furnish to the Port a set of reproducible, final "AS BUILT" drawings of any and all such
Alterations not later than thirty (30) days following the completion, occupancy or initial use of such Alterations
by Licensee, whichever comes first.
12. Title to Improvements.
All structures, locks, bolts, repairs, Alterations, equipment and improvements affixed to or
made upon the Premises by either of the parties hereto, shall be and become part of the realty and the
property of the Port, and shall remain upon and be surrendered with the Premises as part thereof upon
termination of this Agreement. Notwithstanding the foregoing, (a) Licensee, at the termination of this
Agreement, may remove its machinery, boilers, tanks (excepting sprinkler systems and tanks used therewith
and fixed fire protection apparatus), apparatus, conveyors, movable partitions and other Trade Fixtures
heretofore or hereafter placed thereon by it, provided that Licensee is not in default under any of the
provisions of this Agreement, and restores the Premises to their original or to a better condition, and (b) to
the extent required by the Port pursuant to a written notice to Licensee, Licensee shall remove such
Alterations as may be designated in such notice and restore the Premises to their original or better condition,
GAIACA, LLC
dba ACA WASTE REVITALIZATION
AND CONCESSION AGREEMENT
LEGAL+1655924562-5136
of the Board
unless the Port has waived such requirement with respect to specific Alterations by resolution
.
of Port Commissioners upon application by Licensee prior to the making of any such Alterations
13. Exculpation and Indemnification,
(@)
Preview
ELECTRONICALLY FILED Superior Court of California, MARY C. RICHARDSON, ESQ. #208586 County of Alameda PORT ATTORNEY KIMBERLY I. MCINTYRE #184648 04/30/2024 at 02:46:43 PM DEPUTY PORT ATTORNEY iy: Sandra Rodriguez, 530 Water Street, 4th Floor Deputy Clerk Oakland, CA_ 94607 Telephone: (510) 627-1205 kmeintyre@portoakland.com RAMSEY LAW GROUP HUSSEIN SAFFOURI — 177863 3738 Mt. Diablo Blvd., Suite 201 Lafayette, CA 94549 Telephone: (925) 284-2002 Facsimile: (925) 402-8053 hussein@ramseylawgroup.com 10 Attorneys for Plaintiff City of Oakland, EXEMPT FROM a Municipal Corporation, Acting By and FILING FEES 11 Through Its Board of Port Commissioners PER GOV. CODE SECTION 6103 12 SUPERIOR COURT OF CALIFORNIA 13 COUNTY OF ALAMEDA 14 UNLIMITED CIVIL DIVISION 15 16 CITY OF OAKLAND, a Municipal No. 24CVOrseagder 17 Corporation, Acting By and Through Its Board of Port Commissioners, COMPLAINT FOR UNLAWFUL 18 DETAINER Plaintiff, 19 V. 20 GAIACA, LLC, a California limited 21 liability company doing business as GAIACA WASTE REVITALIZATION, 22 COURTSMITH BASKETBALL INDUSTRIES INC., a California 23 corporation and DOES 1 through 20, inclusive, 24 Defendants. 25 26 City of Oakland, a Municipal Corporation, Acting By and Through Its Board of 27 Port Commissioners, alleges: 28 COMPLAINT FOR UNLAWFUL DETAINER 1 Plaintiff City of Oakland, a Municipal Corporation, Acting By and Through Its Board of Port Commissioners (“Plaintiff”) is the lessor of certain commercial premises located at 424 Pendleton Way, Oakland, CA 94621, as further described in the Lease (the “Premises”). 2 Defendant GAIACA, LLC, a California limited liability company doing business as GAIACA Waste Revitalization (“GAIACA”), is the lessee under that certain License and Concession Agreement dated as of October 1, 2022 (“Lease”), a true and correct copy of which is attached as Exhibit A and incorporated by reference. 3 Plaintiff is informed and believes, and on that basis alleges, that defendant COURTSMITH BASKETBALL INDUSTRIES INC., a California corporation (“Courtsmith”), 10 is in possession of the Premises under a document titled Sublicense Agreement naming 11 GAIACA as “licensee” and Courtsmith as “sublicensee” and dated as of May 12, 2023, 12 purporting to be a sublease of a portion of the Premises, a true and correct copy of which is 13 attached as Exhibit B and incorporated by reference. 14 4 The Lease provides that in any action arising out of or in connection with the 15 Lease, the prevailing party shall be entitled to recover from the losing party reasonable attorneys 16 fees and costs of suit. 17 5 The true names of defendants DOES 1 through 20, inclusive, are unknown to 18 Plaintiff, who therefore sues said defendants by such fictitious names. Plaintiff is informed and 19 believes and thereon alleges that each of the defendants designated as a DOE is in some manner 20 responsible for the events alleged herein, and by such actions caused damage to Plaintiff as 21 alleged herein. Plaintiff will ask leave of Court to allege their true names and capacities when the 22 same have been ascertained. 23 6 Plaintiffis informed and believes, and thereon alleges, that the defendants, and 24 each of them, in doing the acts alleged herein, were acting as the agents, representatives, 25 servants, employees, assignees and/or partners of each of the other defendants, and were acting 26 within the course and scope of their employment, agency, assignment or partnership and with the 27 full knowledge and consent of each of the other defendants. 28 COMPLAINT FOR UNLAWFUL DETAINER -2- 7 Prior to the filing of this complaint, defendants went into possession of the Premises and continue to possess them. 8 Defendant GAIACA breached the Lease by failing to pay rent and charges due under the Lease for July 2023 to April 2024 in the total sum of $97,850.00. 9 On or about April 23, 2024 by Fed-Ex pursuant to the terms of the Lease, and on or about April 24, 2024 by posting on the Premises, Plaintiff served a written Three-Day Notice to Pay Rent or Quit (the “Notice”). A true and correct copy of the Three-Day Notice and proofs of service thereof are attached as Exhibit C and incorporated by reference. 10. More than three days elapsed since service of the Notice and defendants neglected 10 and refused to pay the sum due or to vacate and deliver up possession of the Premises to 11 Plaintiff. 12 11. As a result of defendants’ failure to vacate and deliver up possession of the 13 Premises, Plaintiff will sustain damages in the amount of the reasonable rental value of the 14 Premises, to wit: $321.70 per day from May 1, 2024, and will continue to sustain damages at 15 said rate for as long as defendants remain in possession of the Premises. 16 WHEREFORE, Plaintiff prays for judgment against the defendants as follows: 17 1 For restitution and possession of the Premises; 18 2 For forfeiture of the Lease; 19 3 For rent and other charges of $97,850.00; 20 4 For damages in the amount of $321.70 per day from May 1, 2024 for each day 21 that defendants continue to possess the Premises, or until the date of judgment, whichever is 22 sooner; 23 5 For reasonable attorneys’ fees; 24 6 For costs; and 25 7 For such other and further reliefas the Court deems just and proper. 26 27 28 COMPLAINT FOR UNLAWFUL DETAINER -3- DATED: April 30, 2024 RAMSEY LAW GROUP p By HUSSEIN SAFFOURI Attorneys for Plaintiff City of Oakland, a Municipal Corporation, Acting By and Through Its Board of Port Commissioners 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR UNLAWFUL DETAINER -4- VERIFICATION I, Jonathan Veach, am the Chief Real Estate Officer for the City of Oakland, a Municipal Corporation, Acting By and Through Its Board of Port Commissioners, the plaintiff in the above-entitled action and am authorized to make this verification for and on its behalf. I have read the foregoing Complaint For Unlawful Detainer and know its contents. I am informed and believe and on that ground allege that the matters stated in it are true and correct. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and was executed at Oakland, California. Dated: April 30, 2024 10 Jonathan Veatch Jonathan Veach (Apr 30, 2024 12:39 PDT) 11 Jonathan Veach 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR UNLAWFUL DETAINER -5- EXHIBIT A LICENSE AND CONCESSION AGREEMENT between CITY OF OAKLAND, A MUNICIPAL CORPORATION, ACTING BY AND THROUGH ITS BOARD OF PORT COMMISSIONERS as the "Port" and GAIACA, LLC, a California Limited Liability Company doing business as GAIACA WASTE REVITALIZATION as "Licensee" October 1, 2022 GAIACA, LLC LICENSE AND CONCESSION AGREEMENT LEGAL-1655924562-5136 TABLE OF CONTENTS SECTION PAGE DESCRIPTION OF PREMISEB..... TERM..... PERFORMANCE DEPOSIT; MONTHLY RENTAL. eee U SE OF PREMISES; COMPLIANCE SE A EMEA NEE WITH WEEE APPLICABLE APELICABLE LAWS. LAWS. NO VENDING MACHINEG. ....... aeeaseneaes aoeaseneaee 4 COMMERCIAL CHARGES. ... eesesen LICENSEE'S TAXES. ........scsessssesons SIGNS. ..... 9. PROMOTION OF PORT AND FACILITIES. ....... oenees 10. CONDITION OF PREMISES. i M. (AINTENANCE AND SOR REPAIRS; ALTERATIONS AREER AR IERALIONS AND AND ADDITIO! ADDITIONS. NS 12 TITLE TO IMPROVEMENTS. 13 EXCULPATION AND INDEMNIFICATIO 14. INSURANCE........ 15. HAZARDOUS SUBSTANCEBG. .............. 16. DEFAULT... 17. RIGHT OF ENTRY AS AGENT. 10 18. SURRENDER AND HOLDING OVER. 10 19. DESTRUCTION OF PREMISES. 12 20. SECURITY AND PROTECTION OF PREMISES.. 12 21 WAIVERS... 12 22. ASSIGNMENT AND SUB-LICENSE PROHIBITED... . 12 23 NTRY, INSPECTION AND CLOSURE; LICENSEE'S RECORDS. 14 24. PREMISES TO BE KEPT CLEAN. ........... 15 25. FIRE EXTINGUISHERS. 15 26. EQUAL OPPORTUNITY; NONDISCRIMINATION. 16 27. CONSENTS AND APPROVALS. 18 28, BUILDING PERMITS. 18 29. UTILITIES. 18 30. NO RELOCATION ASSISTANG E OR BENEFITS... 19 31 ATTORNEYS' FEES AND COSTS... 19 GAIACA, LLC dba GAIACA WASTE ‘ALIZATION Table of Contents LICENSE AND CONCESSION AGREEMENT Page 1 LEGAL-1655924562-5136 TERMINATION, 19 32. SUCCESSORS. 19 33. 20 34. NO INTEREST IN LAND CREATED. ... TIME OF ESSENCE. 20 35. 36 NOTIC 20 AGREEMENT IN MULTIPLE COPIES 21 37. ADDITIONAL PROVISIONS...... 21 38. TOXIC MATERIALS. ...... 21 39. MODIFICATIONS... 21 40. DISPUTE RESOLUTION. 21 41. AGAINST CONTINGENT FEES 21 42, COVENANT REQUIREMENTS. 22 43. PREVAILING WAGE WAIVER OF CLAIMS. ... 22 44. THE PORT'S LIABILITY....... 22 45. MISCELLANEOUB...... 23 46. EXHIBITS EXHIBIT A — Licensee and Licensee's Notice Address EXHIBIT B-1 — Description of Premises EXHIBIT B-2 — Sketch of Property EXHIBIT C - Term of Agreement EXHIBIT D — Deposit and Monthly Rental EXHIBIT E — Use of Premises EXHIBIT F - Environmental Responsibilities EXHIBIT G - Exceptions EXHIBIT H - Licensee Insurance Requirements EXHIBIT I - Additional Provisions EXHIBIT J — Form of Letter of Credit GAIACA, LLC ‘Table of Contents dba GAIACA WASTE REVITALIZATION Page 2 LICENSE AND CONCESSION AGREEMENT LEGAL-1655924562-5136 THIS LICENSE AND CONCESSION AGREEMENT (this "Agreement") is made by and between the City of Oakland, a municipal corporation, acting by and through its Board of Port Commissioners (the "Port"), and the licensee identified on Exhibit A attached hereto ("Licensee"), for the premises set forth on Exhibit B-1 attached hereto (the "Premises"). 1 Description of Premises. The description of the Premises is set forth on E: it B-1 attached hereto. A sketch of the Premises is attached hereto as Exhibit B-2. 2. Term. The term of this Agreement (the "Term") is set forth on Exhibit C attached hereto. Performance Deposit; Monthly Rental. (a) Performance Deposit. Licensee shall, not later than the Commencement Date, deposit with the Port and during the entire Term shall maintain with the Port a deposit as specified on Exhibit D attached hereto which deposit will be retained by the Port as a performance deposit (the “Performance Deposit") and may be applied by the Port to pay the cost of any of the following: (a) restoration and cleaning of the Premises to restore them to the condition required under Section 1(a) below of this Agreement; (b) repair of any damage to the Premises caused by Licensee's occupancy; (c) replacement of any improvements which are the property of the Port and which have been damaged, removed or otherwise misplaced during the Term; or (d) the payment of any other outstanding amounts due the Port from Licensee pursuant to any of the provisions of this Agreement, including the Monthly Rental (as defined in Section 1(b) below). The Performance Deposit shall be cash or an irrevocable letter of credit in the form attached hereto as Exhibit J or such successor form as the Port may from time to time require by written notice to Licensee (a "Letter of Credit"), issued by a bank ("Issuer") located within the continental United States, acceptable to the Port and with a branch office located in Oakland or San Francisco, California, at which such Letter of Credit may be drawn. (Letters of credit issued through correspondent banks will not be accepted.) The Letter of Credit shall provide that it shall be automatically renewed, without amendment, for consecutive periods of one (1) year each during the Term, unless Issuer sends written notice ("Issuer Notice") to the Port (with a simultaneous copy to Licensee) by any method specified for giving of notices under this Agreement, as amended, not less than ninety (90) days preceding the then-expiration date of the Letter of Credit that it elects not to have such Letter of Credit renewed. If the Port receives an Issuer Notice, and Licensee fails to furnish the Port with a replacement Letter of Credit pursuant to and meeting the conditions of this Section on or before the date sixty (60) days prior to the expiration date of the Letter of Credit, then the Port shall have the right to draw the full amount of the Letter of Credit and hold or apply such amount as a cash Performance Deposit. In the event the Port is required to utilize the Performance Deposit or any portion thereof during the Term for the purposes hereinabove set forth, Licensee shall deposit with the Port an additional sum or a replacement Letter of Credit sufficient to restore the Performance Deposit to the amount hereinabove set forth. Licensee waives the provisions of Section 1950.7 of the California Civil Code to the extent that such Section provides that the Performance Deposit can be applied only to remedy certain defaults by Licensee or is otherwise inconsistent with this Section i(a), it being the parties' intention that this Section 1(a) shall be controlling. The Performance Deposit or any remaining portion thereof shall be returned to Licensee within ninety (90) days after the termination of this Agreement, after deduction of any amounts therefrom for payment of the hereinabove described charges. The payment or delivery of the Performance Deposit by Licensee shall not limit Licensee's liability to the Port for the payment of amounts due the Port by Licensee in excess of the amount of the Performance GAIACA, LLC dba GAIACA WASTE REVITALIZATION LICENSE AND CONCESSION AGREEMENT LEGAL-1655924562-5136 accept, Deposit. The Port, however, at the request of Licensee and at the Port's sole discretion, may elect to in lieu of said cash Performance Deposit provided for hereinabove or Letter of Credit, such other security cash that the Port may determine to be substantially equivalent to or a satisfactory substitute for said Performance Deposit or Letter of Credit. (b) Monthly Rental. As a monthly license fee (the "Monthly Rental"), Licensee deduction, shall pay in lawful money of the United States of America, in advance and without abatement, forth on Exhibit D attached hereto. The Monthly Rental for the offset or previous demand, the amount set calendar month (or, if the Commence ment Date falls on a date other the e first day of a calendar first full calendar month) shall be due and payable on the Commencement Date, and month, the first partial each and every thereafter, the Monthly Rental shall be due and payable in advance on the first day of Rental shall be paid to the Port at the following address: calendar month during the Term. Al!l Monthly 5, or at such other place or to such other person Port of Oakland, P.O. Box 12545, Oakland, CA 94604-254 ment Date is other than the first day of a calendar as the Port may designate in writing. If the Commence quits and month, or if the Term expires on a date other than the final day of a calendar month and Licensee then the Monthly Rental for such month shall surrenders the Premises in compliance with this Agreement, be appropriately prorated. © Delinquency Charge. Any Monthly Rental or other sums provided for hereunder remain (all of which sums constitute rent that Licensee shall pay in addition to the Monthly Rental) that due and unpaid under the terms of this Agreement for a period of ten (10) days after they become due and of all of payable shall be subject to a delinquency charge, for violation of this Agreement and for damages, the following: (1) a one-time charge of One Hundred Dollars ($100.00) per delinquent sum; and (2) a one- time five percent (5%) charge of the amount per delinquent sum; and (3) a sum equal to five one-hundredths interest rate of one percent (0.05%) per day of such delinquent sum (but not to exceed the maximum permitted by applicable law) for each day from the date such payment became due and payable until payment has been received by the Port. U npaid delinquency charges that accrue shall be compound ed accrued delinquen cy charges monthly. The Port shall apply any monies received from Licensee first to any Section 1(c) and then to any other rental or other sums then due. The delinquency charges provided by this by this Agreement or otherwise are in addition to all other remedies that the Port may have that are provided not been paid. The by law to enforce payment of any rental or other sum that has become due and has and Licensee, after delinquency charges provided by this Section 1(c) have been agreed upon by the Port negotiation, as a reasonable estimate of the additional adm istrative costs and detriment that will be thereof being incurred by the Port as a result of any such failure to pay by Licensee, the actual costs extremely difficult if not impossible to determine. Such delinquency charges constitute liquidated damages to be interest to compensate the Port for its damages resulting from such failure to pay, are not intended and shall be paid to the Port together with such unpaid amounts. (@) Partial Payment. No payment by Licensee or receipt by the Port of a lesser earliest amount of rental or any other sum due hereunder shall be deemed to be other than on account of the any endorsemen t or statement on any check or any letter accompany ing due rental or payment, nor shall and satisfactio n, and the Port may accept such check or any such check or payment be deemed an accord in this Agreement , at law or in equity. The Port may accept payment and pursue any other remedy available herein any partial payment from Licensee without invalidation of any contractual notice required to be given without invalidatio n of any notice required to be given (to the extent such contractual notice is required) and pursuant to California Code of Civil Procedure Section 1161, et seq., or of any successor statute thereto. GAIACA, LLC dba GAIACA WASTE REVITALIZATION LICENSE AND CONCESSION AGREEMENT LEGAL-1655924562-5136 4. Use of Pre: s; Compliance with Applicable Laws. a) Use of Premises. The Premises shall be used for those purposes expressly set forth on Exhibit E attached hereto and for no other use or purpose. Licensee shall not do, bring, keep or sell anything in or about the Premises that is prohibited by, or that will cause a cancellation of or an increase in the existing premium for, any insurance policy covering the Premises or any part thereof. Licensee shall not permit the Premises to be occupied or used in any manner that will constitute waste or a nuisance, or disturb the quiet enjoyment of or otherwise annoy tenants or other licensees located in the vicinity of the Premises. The use of the Premises for residence or dwelling purposes is prohibited. Licensee shall not occupy, use or appropriate any space, premises or land other than or outside of the Premises. (b) Compliance with Applicable Laws. wi Licensee, at Licensee's cost and expense, shall comply with all present and future Applicable Laws relating to the Premises, or the use, improvement or occupancy thereof. (ii) For purposes of this Agreement, "Applicable Laws" means all laws, ordinances, resolutions, orders, writs, decrees, judgments, rulings, policies, plans, programs, general rules or regulations, codes, professional standards, permits, or land use restrictions or limitations at any time applicable thereto of any governmental authority, including the City of Oakland, the Port, the Bay Area Air Pollution Control District, the San Francisco Bay Conservation and Development Commission, and the Secretary of the Army, including the Federal Drug-Free Workplace Act of 1989, The Charter of the City of Oakland (including Section 728 entitled "Living Wage and Labor Standards at Port-Assisted Businesses" and Port Ordinance No. 3666 entitled "An Ordinance Establishing a Living Wage Requirement"), and any laws, ordinances, resolutions, orders, writs, decrees, judgments, rulings, policies, plans, programs, general rules or regulations, codes, professional standards, permits, or land use restrictions or limitations relating to human or public health, air pollution control, the environment, water, sanitation, safety or welfare, the filling of or discharges to the air or water, navigation or use of the harbor, or aerial navigation or use of the Oakland International Airport (the Airport") and its facilities. Notwithstanding the foregoing, Applicable Laws shall not include federal law only to the extent that such federal law is inconsistent with California law directly related to the distribution of Cannabis, as that term is defined in the California Medicinal and Adult-Use Cannabis Regulation and Safety Act (Bus. & Prof. Code § 26000 et seq.) or any successor statute (“MAUCRSA”). (c) Waiver and Release. Licensee does hereby waive and release the Port Parties (as defined below) from any and all claims, known or unknown, including claims of negligence, and I lity that may arise from any act or failure to act by the Port Parties in connection with the Port Parties! providing advice, guidance, or assistance to Licensee or any other licensee, sub-licensee or assignee regarding compliance with any Applicable Laws including the following actions or activities: furnishing educational materials to and organizing meetings for licensees; explaining the alleged requirements of any Applicable Laws, the regulations promulgated pursuant thereto, or the terms and conditions or means of complying with any permits required by or issued pursuant to any Applicable Laws; preparing or furnishing draft Storm Water Pollution Prevention Plans or Group Monitoring Plans, or acting as leader of any Group Monitoring Plan. "Port Parties" as used herein shall include the Port and all of its officers, commissioners, agents, departments, officials, representatives and employees, or any person claiming through or under the Port. GAIACA, LLC dba GAIACA WASTE REVITALIZATION LICENSE AND CONCESSION AGREEMENT LEGAL-1655924562-5136 5. Vending Machines. firm or Licensee shall not sell, serve or vend, nor shall Licensee permit another person, corporation to sell, serve or vend any food or food products, alcoholic or nonalcoholic beverages, cigarettes, otherwise, nor cigars or tobacco on the described premises through coin operated vending machines, or shall Licensee operate or maintain or permit to be operated or maintained on the described premises any coin operated non-merchandising machines. 6. Intentionally Omitted]. 7. Licensee's Taxes. charges "Licensee's Taxes" means: (a) all taxes, assessments, fees and other governmental or upon any or impositions levied or assessed against or with respect to the license granted hereunder, , any interest in this Agreement or any possessory right which activity carried on under this Agreement Licensee may have in or to any property covered hereby by reason of its use or occupancy thereof or otherwise; (b) all taxes, assessments, license fees and other government al charges or impositions levied or property or Trade Fixtures (as defined below) in the assessed against or with respect to Licensee's personal Premises or related to Licensee's possession, licensing, operation, managemen t, maintenanc e, alteration, against repair, use or occupancy by Licensee of the Premises, whether any such imposition is levied directly Licensee or levied against the Port or the Premises or the real property on which the Premises are located this Agreement (the "Property"); (c) all rental, excise, sales or transaction privilege taxes arising out of (excluding, however, state and federal personal or corporate income taxes measured by the income of the Port from all sources) imposed by any taxing authority upon the Port or upon the Port's receipt of any rental Tax"); and (d) any increase in laxes payable by Licensee pursuant to the terms of this Agreement ("Rental (as defined below) attributable to inclusion of a value placed on Licensee's personal property, Trade Fixtures or Alterations (as defined 1(b) below). Licensee shall pay any Rental Tax to the Port in addition all other to and at the same time as the Monthly Rental is payable under this Agreement, and shall pay Licensee's Taxes before delinquency (and, at the Port's request, shall furnish the Port satisfactory evidence upon thereof). If the Port pays Licensee's Taxes or any portion thereof, Licensee shall reimburse the Port demand for the amount of such payment. "Taxes" means: (i) all federal, state, county, or local governmental or municipal taxes, fees, charges or other impositions of every kind, nature or origin, whether connection with general, special, ordinary or extraordinary, imposed on or by reason of, or because of or in general the ownership, use, leasing or operation of the Premises or Property (including real estate taxes, of rent and special assessments, transit taxes, business taxes, leasehold taxes or taxes based upon the receipt unless or license fees, including gross receipts or sales taxes applicable to the receipt of rent or license fees, required to be paid by Licensee; (ii) personal property taxes imposed upon the fixtures, machinery, used equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property or Property, or any portion thereof; (iii) service payments in lieu of taxes in connection with the Premises to, in lieu of and taxes and assessments of every kind and nature whatsoever levied or assessed in addition or or in substitution for existing or additional real or personal property taxes on the Premises or Property (iv) any increases in the foregoing caused by changes in assessed the personal property described above; and valuation, tax rate or other factors or circumstances). "Trade Fixtures" means furnishings, equipment, movable partitions, business equipment and other trade fixtures. 8. Signs. Licensee shall not install, paint, inscribe or place any signs or placards either in or upon the Premises without the prior written consent of the Port. Licensee, at its own expense, shall remove or GAIACA, LLC dbs |ATACA WASTE Ri ITALIZATION Li AND CONCESSION AGREEMENT LEGAL-1655924562-5136 paint over, to the satisfaction of the Port, promptly upon termination of this Agreement, any and all signs or placards installed, painted, inscribed or placed by it upon the Premises; and should Licensee fail to so remove or paint over such signs or placards, the Port may do so at the expense of Licensee, and Licensee shall reimburse the Port for the cost thereof upon demand. 9. Promotion of Port and Fac ies. Licensee shall in good faith and with all reasonable diligence employ its best endeavors and all practical means to promote and aid the development of the commerce of the Port and the use of its facilities. 10. Condi n of Premi: S. (a) By taking possession of the Premises, Licensee agrees that the Premises are then in a good condition, and Licensee accepts the Premises in its presently existing condition, "as is," and that the Port shall not be obligated to make any improvements or modifications thereto except to the extent otherwise expressly provided in this Agreement. Licensee represents and acknowledges that it has made a sufficient investigation of the conditions of the Premises existing immediately prior to commencement of use of the Premises and is satisfied that the Premises are fully fit physically and lawfully for the uses required and permitted by this Agreement and that Licensee accepts all risks associated therewith. (b) Licensee specifically acknowledges that except as otherwise may be expressly provided herein the Port has made no representations, warranties or promises, express or implied, concerning the condition of the Premises or any improvements, the fitness of the Premises or any improvements for Licensee's intended use, or the compliance of the Premises or any improvements with any federal, state, or local building code or ordinance or with any laws or regulations or guidelines regarding disabled or handicapped persons, including the Americans With Disabilities Act of 1990, and Licensee expressly waives any duty which the Port might have to make any such disclosures. Licensee further agrees that, in the event Licensee sublicenses all or any portion of the Premises or assigns its interest in this Agreement, Licensee will indemnify and defend the Port for, from and against any matters which arise as a result of Licensee's failure to disclose any relevant information about the Premises to any sublicensee or assignee. (© A Certified Access Specialist (‘CASp”, as defined in California Civil Code Section 55.52) has not inspected the Premises or the Property. Licensee acknowledges the foregoing information and agrees that such statement is merely a statement of fact and is not an admission, covenant, representation, or warranty made by the Port for the benefit of Licensee and Licensee’s employees, agents, contractors, customers, or other invitees as to the condition of the Premises, Property, or any other property owned or controlled by the Port. As required by California Civil Code Section 1938, the Port provides the following notification: “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related access ility standards within the premises.” GAIACA, LLC dba GAIACA WASTE REVITALIZ/ ON LICENSE AND CONCESSION AGREEMENT LEGAL-1655924562-5136 11. Maintenance and Repairs; Alterations and Additions. (a) Maintenance and Repairs. @ Licensee shall, at its sole cost and expense, keep and maintain the Premises and appurtenances thereto and every part thereof, including all windows and other glass, doors and skylights, and the interior of the Premises, in good, clean and sanitary order, condition and repair; provided in any that Licensee shall not be required to maintain or repair any areas which are listed as exceptions provision of Exhi G attached hereto which provision has been indicated to be applicable to this Agreement by the placement of a checkmark to the immediate left of such provision. The Port shall, at its sole cost and expense, repair, keep and maintain in good condition: (a) the foundations, support for the roof, the load-bearing walls, and structural columns of the Premises; (b) to the extent any damage is solely caused by the Port’s gross negligence or willful misconduct, the exterior of the Premises; and (c) the roof (including the roof membrane). Subject to the terms and conditions of Section 7 of Exhibit F (Environmental Responsibi ities) hereto, Licensee's obligations under this Section shall apply in all cases, including circumstances such as required maintenance, cleanup or remediation of any condition, contamination, pollution or nuisance caused by unknown parties or by known parties other than the Port or the Port's agents. (ii) If any repairs or maintenance of exterior walls and roofs are required as (as the result, in part or in whole, of the act, neglect, fault or omission of any duty by Licensee Parties defined below), then Licensee shall pay to the Port the Port's cost of such repairs and maintenance. "Licensee Parties" as used herein shall include Licensee and all entities that are shareholders, trustees, members, partners, venturers, direct or indirect owners, parents, subsidiaries, affiliated entities, successors, Licensee, assigns, beneficiaries, representatives, agents, contractors, sublicensees, visitors and invitees of or any person or entity claiming through or under Licensee, and all individuals who occupy any of the foregoing capacities with respect to Licensee or any such entity, or who are officers, directors, employees or servants of any of the foregoing. (iii) The Port shall not be liable for any failure to make any repairs or perform any maintenance for which the Port is responsible hereunder unless such failure (i) shall persist for an unreasonable amount of time after written notice of the need for such repairs or maintenance is given to the Port by Licensee and (ii) is due solely to causes within the Port's reasonable control. The Port shall not be liable for any damage or loss to any property on the Premises, or any loss of business by Licensee, which arises out of any need for repair or maintenance of the Premises. Should Licensee fail to perform any repairs or maintenance it is obligated (iv) to perform hereunder, the Port shall have the option, but not the obligation, to perform such repairs or f of Licensee, maintenance on behal and Licensee shall immediately reimburse the Port for the cost thereof. The performance of such repairs or maintenance by the Port shall in no event be construed as a waiver of the duty of Licensee to repair and maintain the Premises as herein provided. (vy)As a material part of the consideration for this Agreement, Licensee hereby waives any right to make repairs at the expense of the Port and waives the benefit of the provisions of any existing or future Applicable Laws which purport to create such a right, including if ever deemed applicable to this Agreement, Sections 1932(1), 1941 and 1942 of the California Civil Code relating thereto. (b) Alterations and Add 1s, GAIACA, LLC dba GAIACA WASTE REVITALIZATION LICENSE AND CONCESSION AGREEMENT. LEGAL-1655924562-5136 @ Licensee shall not make any alterations, additions, improvements, changes or betterments (collectively, "Alterations") to the Premises without first obtaining the prior written approval of the Port, and, at its own cost and expense, all necessary approvals and permits, including all necessary building, electrical or plumbing permits from the City of Oakland, and any necessary approvals and permits from the San Francisco Bay Conservation and Development Commission. Any such Alterations shall be completed by Licensee at Licensee's sole cost and expense: (i) with due diligence, in a good and workmanlike manner, using new materials; (ii) in compliance with plans and specifications approved by the Port in writing; (iii) in compliance with the construction rules and regulations promulgated by the Port from time to time; (iv) in accordance with all Applicable Laws (including all work, whether structural or non-structural, inside or outside the Premises, required to comply fully with all Applicable Laws and necessitated by Licensee's work); and (v) subject to all conditions which the Port may in its discretion impose. Such conditions may include requirements for Licensee to: (A) provide payment or performance bonds or additional insurance (from Licensee or Licensee's contractors, subcontractors or design professionals); (B) use contractors or subcontractors designated by the Port; and (C) remove all or part of the Alterations prior to or upon expiration or termination of the Term, as designated by the Port. The Port's right to review and approve (or withhold approval of) Licensee's plans, drawings, specifications, contractor(s) and other aspects of construction work proposed by Licensee is intended solely to protect the Port, the Premises and the Port's interests. No approval or consent by the Port shall be deemed or construed to be a representation or warranty by the Port as to the adequacy, sufficiency, fitness or suitability thereof or compliance thereof with Applicable Laws or other requirements. (ii) Licensee shall not paint the Premises or any portions thereof without the prior written approval of the Port with respect to the method and color of such painting. (iii) Licensee warrants that any Alterations proposed by Licensee, if constructed or installed consistently with the plans and specifications approved by the Port, will comply with all laws and regulations regarding disabled or handicapped persons, including the Americans With Disabilities Act of 1990. Licensee shall comply with all terms and conditions of permits whether secured by Licensee or the Port. (iv) Upon Licensee's completion of any Alterations within the Premises, Licensee shall submit to the Port a copy of any certificate or permit which may be required by any federal, state, city or other governmental agency in connection with the completion or occupancy of said Alterations by Licensee. Licensee shall furnish to the Port a set of reproducible, final "AS BUILT" drawings of any and all such Alterations not later than thirty (30) days following the completion, occupancy or initial use of such Alterations by Licensee, whichever comes first. 12. Title to Improvements. All structures, locks, bolts, repairs, Alterations, equipment and improvements affixed to or made upon the Premises by either of the parties hereto, shall be and become part of the realty and the property of the Port, and shall remain upon and be surrendered with the Premises as part thereof upon termination of this Agreement. Notwithstanding the foregoing, (a) Licensee, at the termination of this Agreement, may remove its machinery, boilers, tanks (excepting sprinkler systems and tanks used therewith and fixed fire protection apparatus), apparatus, conveyors, movable partitions and other Trade Fixtures heretofore or hereafter placed thereon by it, provided that Licensee is not in default under any of the provisions of this Agreement, and restores the Premises to their original or to a better condition, and (b) to the extent required by the Port pursuant to a written notice to Licensee, Licensee shall remove such Alterations as may be designated in such notice and restore the Premises to their original or better condition, GAIACA, LLC dba ACA WASTE REVITALIZATION AND CONCESSION AGREEMENT LEGAL+1655924562-5136 of the Board unless the Port has waived such requirement with respect to specific Alterations by resolution . of Port Commissioners upon application by Licensee prior to the making of any such Alterations 13. Exculpation and Indemnification, (@)