HomeMy WebLinkAboutReso 117-2007RESOLUTION NO. 117-2007
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING A GROUND LEASE
AND LICENSE BETWEEN THE CITY OF SOUTH SAN
FRANCISCO, THE SAN MATED COUNTY HARBOR
DISTRICT, AND THE SAN FRANCISCO BAY WATER
TRANSIT AUTHORITY FOR THE OYSTER POINT
MARINA FERRY TERMINAL
WHEREAS, the City owns the real property and water area known as Oyster Point
Marina ("Marina"); and
WHEREAS, i~ 1997, the San Mateo County Harbor District ("Harbor District"} entered
into a Joint Powers Agreement with the City to control and operate the Marina; and
WHEREAS, the San Francisco Bay Water Transit Authority ("WTA") desires to lease
from the Harbor District a portion of the Marina known as the Oyster Point Ferry Terminal
("Ferry Terminal"); and
WHEREAS; Ground Lease and License ("Lease") would confer upon the WTA' rights
over the Ferry Terminal for ferry service operations and improvements installation up to 15 feet
below ground level for fifty-five years; and
WHEREAS, the Lease obligates the WTA to snake aone-time rental payment of $3.32
million dollars ("Payment") to the Harbor District; and
WHEREAS, on January 1St, 2008, the WTA shall cease to exist and a new agency called
the Water Emergency Transit Authority ("WETA") shall come into existence to perform similar
functions; and
WHEREAS, if and when the San Mateo County Transportation Authority transfers the
full Payment to City, under the Lease, the City will then remit the Payment to the Harbor District
on behalf of the WTA/WETA.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco does hereby:
1. Approve the "Ground Lease and License" by and between the City of South San.
Francisco, the San Mateo County Harbor District, and the San Francisco Bay Water Transit
Authority, substantially in the form set forth in Exhibit A, attached hereto, but subject to revision
as deemed appropriate by the City Attorney; and
2. Authorize the City Manager to sign and execute, on behalf of the City, the Ground
Lease, substantially in the form as set forth in Exhibit A, attached hereto, but subject to revision
as deemed appropriate by the City Attorney.
~ ~:
I hereby certify that the foregoing Resolution was regularly introduced and
adopted by the City Council of the City of South San Francisco at a regular meeting held
on the 12`}' day of December, 2007 by the following vote:
AYES: Councilmembers Mark Addiego, Richard Garbarino, Kevin Mullin,
NOES:
Mayor Pro Tem Karyl Matsumoto and Mayor Pedro Gonzalez
ABSTAIN:
Exhibit A
Ground Lease
GROUND LEASE AND LICENSE
This Ground Lease and License (Lease} is made and entered into as of this day of
December 2007, by and between Sari Mateo County Harbor District ("Landlord"), having its
principal place of business at 400 Oyster Point Blvd. Suite 300 South San Francisco, CA 94080,
the City of South San Francisco ("City"), having its principal place of business at 400 Grand
Avenue South San Francisco, CA 94080, and San Francisco Bay Area Water Transit Authority,
("Tenant"), having its principal place of business at Pier 9, Suite 11 1, San Francisco, CA 94111
with references to the following facts and objectives:
RECITALS
WHEREAS, the City is the owner ar.~d Landlord is the operator of those certain parcels of real
property and water areas situated in 1:he County of San Mateo, State of California and more
commonly known as Oyster Point Marina/Park ("Marina"), the legal description of which is
attached hereto as Exhibit 1. The Marina is controlled and operated by Landlord pursuant to a
Joint Powers Agreement executed by and between Landlord and the City in October 1977, which
is in full force and effect for a period of forty-nine (49) years from November 11, 1977. The City
desires to be bound by the relevant provisions of this Lease pursuant to the Joint Powers
Agreement with Landlord and as successor to Landlord upon expiration of the Joint Powers
Agreement.
WHEREAS, Tenant desires to lease from Landlord and Landlord agrees to lease to Tenant a
portion of the Marina, more particularly described in Exhibit A attached hereto and by this
reference made a part hereof for the sole purpose of constructing and operating the Oyster Point
Ferry Terminal ("Terminal") (more particularly described in Exhibit "B" attached hereto and
incorporated by reference herein) pursuant to the Provisions stated in this Lease.
WHEREAS, Landlord grants to Tenant, subject to all of the terms, covenants, and conditions of
this Lease, the exclusive right to construct and operate the Terminal (including removal of
existing docks 9 and 10 and dredging; activities within the leased Premises), land common carrier
ferry vessels for the purposes of passenger embarkation and debarkation, use fifty (50) vehicle
parking spaces, and refuel ferry vessE;ls at the Terminal located between the Oyster Point Harbor
Master's office and Dock 11 of the Marina, conditioned upon the Terminal not including any
signs which exceed a total of forty (40) feet in height and Tenant not using any vehicle parking
space or area controlled and operated by Landlord without prior written permission from
Landlord.
WHEREAS, other than the warrantif;s set forth in Paragraph 7 of this Lease, Tenant
acknowledges that Landlord has inad.e no representations, express or implied, to Tenant regarding
suitability for Tenant's purposes or the condition of the property, including representations
regarding bottom sediments and zoning.
Now, therefore, for and in consideration of the Premises and of the mutual obligations,
agreements, and representations and. warranties herein contained, the parties do hereby agree as
follows:
TERMS AND DEFINITIONS
As used in this Lease, the following words and phrases have the following meanings:
Alteration: any addition or change to, or modification of, the Premises or demolition and
construction of new Improvements made by Tenant.
Approvals: those permissions required by law or regulation prior to, or during, the construction
and operation of the proposed Terminal.
City: the City of South San Francisco.
Commencement Date: the date upon which Tenant receives its certificate of occupancy or
functional equivalent.
Damage: injury, deterioration, destruction, or loss to a person or property, damage includes
death.
Damages: a monetary compensation or indemnity that can be recovered by any Person who has
suffered Damage to his Person, property, or rights through another's act or omission.
Default: any condition or event which constitutes or which, after notice or lapse of time, or both
would constitute an Event of Default.
Effective Date: Date of execution o:f the Lease by all parties hereto.
Expiration: the coming to an end of the time specified in the Lease as its duration, including any
Extension Term.
Facility: shall mean and refer to the Terminal and/or passenger loading and unloading area on
land and/or parking spaces that, subject to the terms and conditions hereof, are to be constructed
and operated by Tenant on the Premises.
Good Condition: the good physical condition of the Premises and each portion thereof. "In
Good Condition" means in good order and repair, clean, broom clean, free of graffiti and
accumulated trash, and fully operative.
Hazardous Material: any hazardous or toxic substance, material or waste that is or becomes
regulated by any local government authority, the State of California or the United States
Government.
Impositions: all taxes and assessments due during the Lease Term.
Improvements: all buildings (including the Facility), pilings, floats, dock areas, fixtures,
sidewalks, curbs, gutters, paved areas, structures, signs, water wells, water supply systems,
sewage systems, waste water systems, fencing, utility systems, parking area improvements,
service and trash area improvements, landscaping, lighting, exterior fountains, sculptures, flags,
banners or historic artifacts, or any other improvements now or hereafter constructed or
maintained on the Premises or any alteration or additions thereto, except for Tenant's Personal
Property.
Insurance Requirements: all terms ofd any insurance policy covering or applicable to the Premises
or any part thereof, all requirements of the issuer of any such policy, and all orders, rules,
regulations and other requirements ofthe National Board of Fire Underwriters (or any other body
exercising similar functions) applicable to or affecting the Premises or any alteration or part
thereof or any use or condition of the Premises or any part thereof.
Landlord: San Mateo County Harbor District, constituted pursuant to the Joint Powers
Agreement, effective November 11, 1977, recorded on October 15, 1984, as Recorder's Serial
No. 84111706, San Mateo County Official Records, and as amended from time to time.
"Landlord" shall also mean the City, when it becomes the successor to the interest of San Mateo
County Harbor District upon the expiration of said Joint Powers Agreement.
Law: any judicial decision, statute, constitution, ordinance, resolution, regulation, rule,
administrative order, or other requirement of any municipal, county, state, federal or other
government agency or authority having jurisdiction over the parties or the Premises, in effect
either at the time of execution of the Lease or at any time during the Lease Term, including
without limitation, any regulation or order of aquasi-official entity or body.
Lease: this Lease.
Legal Requirements: all laws, statutf;s, codes, acts, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, permits, licenses, authorizations, directions and requirements of all
governments, departments, commissions, boards, courts, authorities, agencies, officials and
officers, foreseen or unforeseen, ordinary or extraordinary, which now or any or at any time
hereafter may be applicable to the Premises or any part thereof or any of the adjoining sidewalks,
curbs, streets or ways, or any use or condition of the Premises or an_y part thereon.
License: The exclusive right to land common carrier Ferry vessels solely for the purpose of
refueling and passenger embarkation and debarkation at the Oyster Point Ferry Terminal, which
license is incorporated by reference a.nd is a part of this lease.
Maintenance: that replacement, repainting, and cleaning, and such labor and materials as are
required, to keep the Facility and any associated landscaping healthy, safe, functional and
aesthetically pleasing and in compliance with all Legal Requirements imposed by the City.
Person: any individual, corporation, association, partnership, joint venture, organization, or any
other business entity, or a governmental or political unit or agency.
Premises: as defined in the Recitals, ]herein, and including all improvements constructed by the
Tenant thereon during the Lease Term.
Project: development, construction, and operation of the Terminal and all related facilities and
appurtenances.
Provision: any Lease term, agreement, covenant, condition, clause, qualification, restriction,
reservation, or other stipulation in the Lease that defines or otherwise controls, establishes or
limits the performance required or pE;rmitted by either party.
Rent: All charges payable by Tenant to Landlord.
Restoration: the reconstruction, rehabilitation, and repairs necessary to return destroyed portions
of the Premises and other property to substantially the same physical condition as they were
before the Destruction.
Tenant's Personal Property: the equipment, signs, furniture, furnishings, merchandise, and
moveable property placed in the Prerises by the Tenant which have not become fixtures.
Termination: the ending of the Lease Term for any reason before Expiration.
Terminal: the Oyster Point Ferry Terminal and all land and water area, structures and other
improvements thereto that are included in Exhibit "B" of this Lease.
Unavoidable Delays: delays due to strikes, acts of God, governmental restrictions, enemy action,
riot, civil commotion, fire, unavoidable casualty or any other causes beyond the control of
Landlord or Tenant, as the case maybe; provided, however, that no delay may be deemed
unavoidable if Landlord would be in danger of incurring any civil or criminal liability for Tenant's
failure to perform any act required by this Lease. In the event of a delay which would qualify as
an Unavoidable Delay as defined herein but for the danger of the Landlord incurring civil liability,
such delay shall be deemed to be an 1;lnavoidable Delay if Tenant agrees in writing to indemnify
Landlord and hold it harmless from a,nd against any liability, damage, cost, expense, claim or
cause of action, including without linutation, reasonable attorney's fees incurred by Landlord as a
result of such delay. Unavoidable delays shall not include delays resulting from either (a)
Tenant's inability to obtain sufficient funds or firm financing commitments to complete
construction or (b) inability of Tenant to obtain a building permit issued by the City as provided
for in Paragraph 2.4 of this Lease.
2. AGREEMENT TO LEASE
2.1. Premises Leased. Upon and subject to the conditions and limitations set forth below,
Landlord leases to Tenant, and Tenant leases from Landlord, the Premises, together with all
rights-of--way or rights of use servitudes, licenses, tenements, hereditaments, appurtenances and
easements now or hereafter belonging or pertaining to any of the Premises. However, this Lease
confers no rights with regard to the subsurface of the Premises more than fifteen (15) feet below
ground level, except to the extent necessary to install pilings or other support for the
Improvements, nor does it confer ris;hts to airspace above the roof of the Facility other than air
space rights for signs which maybe placed upon the roof of the Facility, provided that the total
height of the Facility including the signs, shall not exceed forty (40) feet. The parties hereto agree
that said letting and hiring is upon and subject to the terms, covenants and conditions herein set
forth and Tenant covenants as a material part of the consideration for this Lease to keep and
perform each and all its terms, covenants and conditions. Landlord shall take no action with
respect to its reserved subsurface rio;hts that would endanger or impair the Improvements or
interfere with the activities taking pl;~.ce on the Premises. The City hereby consents to the Lease
as pursuant to the Joint Powers Agreement with Landlord and as successor to Landlord upon
expiration of the Joint Powers Agreement.
2.1.1. Purpose of Lease and Related Services. The ultimate purpose of the Lease for the benefit
of the public is the complete and continuous use of the Facilities. All facilities and services shall
be made available to the public without any illegal discrimination as defined by California Federal
law.
The immediate purpose of this Lease: is the development of the Premises for construction,
operations and Maintenance of the Terminal.
It is agreed that the ultimate and immediate purposes are consistent and compatible. Accordingly,
Tenant covenants and agrees to operate said Premises fully and continuously to accomplish said
purpose consistent with sound business practice and subject to the terms of this Lease.
2.1.2, Cooperation Among Tenants. Tenant shall cooperate with all other tenants of Landlord
who will be operating enterprises in i:he vicinity of the Premises, and shall conduct its operations
so as to avoid interference with the operations of other tenants. Landlord may, but is not required
to, resolve any difference or conflict which may arise between Tenant and other tenants operating
enterprises in the vicinity of tl~e Premises. If the operations of Tenant are impaired because of any
acts or omissions of such other tenants, Tenant shall have no claim against Landlord on that
account.
2.2. Lease Term. The term of the Lease (the "Lease Term") shall commence on the
Commencement Date and expire at midnight on the same day fifty-five (55) years subsequent
thereto, subject to any options to extend. Promptly following commencement of the Lease Term,
Landlord, Tenant and the City shall execute an amendment confirming the Commencement and
Expiration Dates of the Lease, which shall be recorded.
2.2.1 Rent Pa ment. Tenant agree;> that rent in the amount of $ 3,320,000 ("Rent") shall be
owed to Landlord in one lump sum, payable on behalf of Tenant and/or its successor, by the City.
The parties contemplate that the City will receive its share of San Mateo County Measure A
Transportation Authority ("Transportation Authority") funds in the first quarter or the second
quarter of 2008. Upon receipt of these fiends; the City shall immediately pay Landlord the Rent.
The City shall have no obligation to pay Landlord the Rent until receipt of said funds from the
Transportation Authority. Landlord shall have no obligation to expend any money or undertake
any tasks to facilitate construction of~the Facility until it receives the Rent from the City. Upon
receipt of the Rent, Landlord shall irr~plement demolition of Oyster Point Marina docks 9 and 10
and other associated facilities as provided for in this Lease, and commence dredging of the water
portion of the leased Premises in the East Basin pursuant to amendments to the District's existing
contract with Tenant entered into on February 27, 2007, reproduced as Exhibit _ and
incorporated by reference herein.
2.2.2 Right of Entry. During the period commencing upon the Effective Date and continuing
through the Commencement Date, T•°nant shall have a revocable license to enter the Premises for
the purpose of conducting studies, investigations and construction of the Facilities. Such license
shall be revocable only in the event of a Default by Tenant beyond notice and the expiration of any
applicable grace period set forth in this Lease. However, if all Parties fail to execute this Lease on
or before December 31, 2007, Landlord shall have the immediate and unconditional right, at its
sole and absolute discretion, to revoke Tenant's right of entry to the Premises.
During this period Landlord shall not use the Premises in a manner which results in an increase in
construction costs of the Facilities or interferes with the progress of Tenant's construction of the
Facilities. Tenant shall have no vested or possessory interest in the Premises during this period
except for its right and title to the improvements it constructs thereon.
During this period, Tenant shall maintain insurance coverage as provided elsewhere in this Lease.
2.3. Tenant's First Right to Neaot:iate. If Landlord desires to continue leasing the Premises
following the Expiration of the term of this Lease, Landlord shall notify Tenant in writing
(`Landlord's Notification") of such desire at least 180 days but not more than one year prior to
the Expiration of the term. Landlord and Tenant will thereafter meet to negotiate in good faith
the terms and conditions of a new lease. If within ninety (90) days after Tenant receives
Landlord's Notification, Tenant and :Landlord are unable to agree on terms for a new Lease, then
Landlord shall be permitted to enter Tinto negotiations with any third party for lease of the
Premises.
2.3.1. Tenant's Right of First Refusal. In addition to Tenant's other rights as set forth elsewhere
in this Lease, during the term of this Lease and for a period of six (6) months following its
Expiration, in any instance in which I~andlord makes an offer to a third party to lease the
Premises, receives an offer from a thiird party to lease the Premises or negotiates a written lease
with a third party to lease the Premises (subject and subordinate to Tenant's prior rights under
this Lease so long as this Lease is in effect), Landlord shall, before accepting any such offer or
entering into any written lease with a. third party for the Premises, give Tenant written notice of all
the terms and conditions of said offer or written lease and Tenant shall have sixty (60) days from
the date of Landlord's notice to give Landlord written notice that Tenant elects to enter into a
written lease of the Premises upon the terms and conditions set forth in Landlord's notice. If
Tenant does not elect to accept the t~°rms and conditions of the written lease set forth in
Landlord's notice, Landlord shall have a period of six (6) months in which to enter into a written
lease with said third party on said terms and conditions: provided however, that in the event of
any change in the terms and conditions from those set forth in Landlord's notice, Landlord shall
be required to give Tenant a new written notice of the new terms and conditions and Tenant shall
have another sixty (60) day period in which to notify Landlord that Tenant accepts the new terms
and conditions.
2.4. Early Termination / Inabilit~to Obtain Building Permit. If Tenant is unable to obtain a
building permit from the City to con;;truct the Improvements as provided in Article 8 hereof, this
Lease will terminate immediately unless the requirement for a building permit is waived in writing
by Landlord by delivery of written notice to Tenant. Upon such notice of waiver, each party shall
be released from its obligations under this Lease effective upon the date of such notice.
2.5. End of Lease Term.
2.5.1. Surrender. Upon the Expiration or other Termination of the Lease Term, Tenant shall
quit and surrender to Landlord, or Landlord's successor in interest, the Premises including all
Improvements in Good Condition except for [a] ordinary wear and tear occurring after the last
necessary Maintenance made by Tenant, or [b] destruction to the Premises covered by
Paragraphs 13.1 and 13.2. Any damage or deterioration of the Premises shall not be deemed
ordinary wear and tear if the same could have been prevented by good Maintenance practices.
Tenant hereby agrees to execute all documents as Landlord may reasonably deem necessary to
evidence any Termination of the Lease Term.
If Tenant fails to surrender the Premises to Landlord on Expiration or Termination of the Lease
Term as required by this Paragraph, 'Tenant shall indemnify, defend and hold Landlord harmless
from all Damages resulting from Ter,~ant's failure to surrender the Premises, included but not
limited to and without limitation, claims made by a succeeding tenant resulting from Tenant's
failure to surrender the Premises, anti Tenant waives all claims against Landlord for any Damage
to Tenant resulting from Landlord's retention or disposition of any Improvements, Alterations, or
Tenant's Personal Property. Tenant shall be liable to Landlord for all costs incurred by Landlord
for storing, removing, or disposing o~f any Improvements, Alterations, or Tenant's Personal
Property. In addition, Tenant shall be liable to Landlord for any Damages Landlord may sustain as
a result of such failure to surrender a.nd shall pay all costs and attorney's fees as may be necessary
to evict Tenant.
The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereon, shall
not work a merger, and shall, at the option of Landlord, operate as an assignment to it of any or
all subleases or subtenancies.
2.5.2 Tenant's Personal Property. Tenant shall remove all of Tenant's Personal Property, and
shall perform all Restoration made rnecessary by the removal of such Personal Property, at or prior
to the Expiration or Termination of the Lease Term. Landlord may remove any of the Tenant's
Personal Property that Tenant has not removed from the Premises on Expiration or Termination
of the Lease Term and store Tenant's Personal Property in a public warehouse or elsewhere for
such a period of time as may be required by applicable Law, after which time Landlord may retain
or dispose of all such property in accordance with applicable Law. Tenant waives all claims
against Landlord for any Damage to Tenant resulting from Landlord's retention or disposition of
any Tenant's Personal Property as provided herein. Tenant shall be liable to Landlord for
Landlord's costs for storing, removing and disposing of any Tenant's Personal Property.
2.5.3 Ownership of Improvements. Upon Expiration or Termination of this Lease, title to such
immovable Improvements, including, all buildings, structures, Fixtures and facilities constructed or
placed within the leased Premises by Tenant, which are or have been within the Lease Term
attached or fastened to the ground, deck, floor or walls of a structure, such that they cannot be
removed without damage to the Premises, shall become the property of Landlord or Landlord's
successor in interest at the Expiration of the Lease or upon earlier Termination thereof, and
Tenant shall execute such instruments as may be reasonably required by Landlord confirming
Landlord's title to the improvements; located on the Premises.
2.6. Holding Over. Unless the TE;rm of the Lease is extended by the parties, any holding over
by Tenant after the Expiration or Termination of this Lease, and any acceptance of Rent by
Landlord thereafter, shall not constitute a renewal or give Tenant any rights hereunder in the
Premises, except with the prior written consent of Landlord, which consent may be withheld for
any reason whatsoever. Any holding over by Tenant after the Expiration or Termination of this
Lease, with the written consent of Landlord, shall be construed to be a tenancy from month to
month, and shall be terminable upon thirty (30) days written notice given by either Landlord or
Tenant. All the terms, covenants, conditions, and Provisions of this Lease shall apply to any such
month-to-month tenancy. Landlord shall respond to request to holdover within a reasonable time.
If Tenant holds over after the Expiration or Termination of this Lease without the express written
consent of Landlord, Tenant shall become a tenant at sufferance only, and otherwise subject to the
terms, covenants, conditions, and Provisions herein specified, so far as applicable. During any
holding over period as described by this provision, Tenant shall pay to Landlord a monthly Rent
equal to 125% of the monthly pro-rated amount of the one-time, Iump-sum payment made by
Tenant, adjusted for inflation as measured by the percent change in the U. S. Department of
Labor, Bureau of labor Statistics Consumer Price Index for San Francisco-Oakland-San Jose
(1982-1984 base) between the Effective Date of this Lease and the commencement of any holding
over period. Nothing in this Paragraph 2.6 shall be construed as consent by Landlord to any
holding over by Tenant.
3. IMPOSITIONS
Due to its status as a government entity, Tenant is not subject to real property taxation. Tenant
agrees to provide such information as maybe requested by Landlord to enable Landlord to
comply with any reporting requirements of appropriate taxing authorities under applicable Law.
4. UTILITIES, SERVICES AND ASSESSMENTS
Tenant shall make all arrangements for and pay to the appropriate supplier for all utilities and
services directly furnished to or used by it including, without limitation, gas, water, electricity,
sewer, and telephone services and for all connection charges for such utilities and services.
Tenant, including any future successors and assigns, shall also pay for any applicable taxes and
assessments levied upon machines, appliances or property owned or used by Tenant.
Landlord shall not be liable in DamagE;s or otherwise for any failure or interruption of (i) any
utility service furnished to the Premises, or (ii) the heating, ventilating, and air conditioning
systems.
5. USE, LIMITATIONS ON USE
5.1. Use. Tenant shall use the Premises for constructing and operating the Terminal as set
forth in Exhibit "B" attached hereto and incorporated by reference herein. Upon completion of
construction, the Terminal shall be usf;d for vessels operating for the public convenience and
necessity in point to point sailings on specific Service Routes as defined in paragraph 5.2.11
below at the Terminal landing docl~s a.s set forth in the landing schedule attached hereto and
incorporated by reference herein as Exhibit "C". A Service Route as used herein is defined as a
continuous trip between two or more points, at least one of which is the Terminal. At Tenant's
request, Landlord shall allocate up to fifty (50) vehicle parking spaces for use by Tenant iri an area
designated by Landlord convenient to the Premises. Tenant's use of the Premises for the use
provided for herein shall not impede the public's use of the existing public bicycle/pedestrian trail
to and along the Marina and San Francisco Bay shoreline.
5.2. Limitations on Use. Tenant's use of the Premises shall be in accordance with this
Paragraph 5.2.
5.2.1. Prohibited Uses. The parties Hereto agree that the following acts, occurrences or conduct
by Tenant on or from the Premises are; strictly prohibited:
a) Engaging in, assistir.~g, aiding or abetting in any act that constitutes a violation of
any Law.
b} Operations hereunder must not obstruct vessel or vehicle traffic on Marina
waters or land area.
5.2.2. Compliance with Legal Requirements. Tenant at Tenant's sole cost and expense,
promptly shall comply with all Laws, .statutes, ordinances, resolutions, regulations, judicial
decisions, proclamations, orders, decrees or policies of any municipal, county, state or federal
government or the departments, courts, commissions, boards and officers thereof, or other
governmental or regulatory authority with jurisdiction over the Tenant and the Terminal Premises
or any Portion thereof, including without limitation, the Landlord (collectively, "Laws") relating
to or affecting the condition, use or occupancy of the Terminal Premises in effect either at the
time of execution of this Lease or which may hereafter be in effect at any time during the term
hereof, whether or not the same are now contemplated by the parties. Tenant's compliance shall
include compliance with all provisions and conditions of the Federal Americans with Disabilities
Act. Tenant shall obtain and pay for all licenses and permits required for Tenant's construction
and occupancy and use of the Premi:>es. Compliance with all Laws shall include compliance with
all requirements of each regulatory agency that has jurisdiction over the Premises including but
not limited to the Department of Boating and Waterways.
5.2.3. Waste: Nuisance. Tenant shall not cause, maintain or permit any um-easonable annoyance
or nuisance in, on, or about the Prenuses or on any Landlord property or Marina waters. Tenant
shall not commit or suffer to be committed any waste in or about the Premises and shall keep the
Premises in first class repair and maintain the same in Good Condition during the Lease Term.
5.2.4 Hazardous Material. Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept, or used in or about the Premises except to the extent that such Hazardous
Material is necessary or useful to Te~:iant's business and will be used, kept and stored in a manner
that complies with all Laws, including environmental regulations, relating to such Hazardous
Material. Tenant agrees to indemnify, defend and hold Landlord and City harmless from any
liabilities, losses, claims, Damages, penalties, or other expenses resulting from or arising out of
actions brought by third parties against Landlord in connection with Tenant's use, storage,
transportation, release, or disposal o:FHazardous Material on or about the Premises by Tenant.
Tenant's obligations under this paragraph shall include, but not be limited to, the effects of any
contamination or injury to Person, property or the environment created or suffered by Tenant.
Tenant is responsible for investigation, removal, remediation, restoration, and/or abatement of
hazardous Material it introduces onto the Premises. Tenant shall not have any responsibility with
respect to Hazardous Material existing in, on or under the Premises as of the Effective Date.
5.2.4.1 Requirements for Handling. Neither Tenant nor its Agents or Invitees, shall use, generate,
process, produce, package, treat, store, emit, discharge or dispose (collectively, "Handle") in, on
or about the Premises any Hazardous Materials without the prior written consent of Landlord,
which consent shall not be unreasonably withheld so long as Tenant demonstrates to Landlord's
reasonable satisfaction that such Hazardous Material is necessary to Tenant's business, will be
Handled in a manner which strictly complies with all laws and will not materially increase the risk
of fire or other casualty to the Premises. Notwithstanding the foregoing, Tenant may Handle on
the Premises janitorial or office supplies or materials in such limited amounts as are customarily
used for general office and janitorial purposes so long as such Handling is at all times in full
compliance with all Laws.
5.2.4.2 Tenant Responsibility. Subject to the restrictions set forth in Paragraph 5.2.4.1, Tenant
shall Handle all Hazardous Materials discovered on the Premises during the Term of this Lease or
introduced on the Premises by Tenant, its Agents or Invitees, in compliance with all Laws.
Tenant shall not be responsible for the safe handling of Hazardous Materials introduced on the
Premises during the term of this Lea:;e by City, Landlord or their Agents. Tenant shall protect its
employees and the general public in accordance with all Laws. Landlord may from time to time
request, and Tenant shall be obligated to provide, information reasonably adequate for Landlord
to determine that any and all Hazardous Materials are being Handled in a manner which complies
with all Laws. Landlord shall have the right to inspect the Premises for Hazardous Materials at
reasonable times, pursuant to its rights of entry provided for hereunder.
5.2.4.3 Requirement to Remove. Prior to Termination of this Lease, Tenant, at its sole cost and
expense, shall investigate, remove, re,mediate, and/or abate any and all Hazardous Materials
introduced in, on, under or about the Premises by Tenant, its Agents or Invitees. Further, Tenant,
at its sole cost and expense, shall ren-ove any Hazardous Material discovered on the Premises
during the Term of this Lease which is required to be removed by any govermnental agency,
including Landlord; provided, however, that Tenant shall not be obligated to remove any
Hazardous Material introduced onto the Premises during or before the Term of this Lease by the
City, Landlord or their Agents.
5.2.5 Fueling of Common Carrier I~err~Vessels. Tenant shall have the right to fuel common
carrier ferry vessels that operate to and from the Terminal that is described in Exhibit "B" of this
Lease subject to the following terms and conditions:
5.2.5.1 Fueling of vessels by Tenant and any contractor employed by Tenant shall be done only
when said vessels are docked securely at the Terminal.
5.2.5.2 Fueling shall be done by Tenant and/or any contractor employed by Tenant only by means
of a truck and hose, with the hose connected to a standpipe or similar installation that shall be
installed by Tenant at Tenant's sole cost at a location such that the fueling hose shall not cross the
public bicycle/pedestrian trail runnin;; along the Marina shoreline.
5.2.5.3 Tenant and/or any contractor- employed by Tenant shall obtain, keep current, and provide
to Landlord at Landlord's request copies of all permits and approvals necessary to allow fueling
of the ferry vessels at the Leased Premises.
5.2.5.4 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current
form a Safety Plan to govern fueling operations and provide a copy of said Safety Plan to
Landlord.
5.2.5.5 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current
form a Fuel Spill Containment Plan and provide a copy of said Containment Plan to Landlord.
5.2.5.6 Tenant and/or any contractor employed by Tenant shall obtain and maintain all insurance,
naming Landlord as Additional Insured, covering vessel fueling operations as needed in addition
to all other insurance required by this Lease.
5.2.5.7 When carrying out vessel fueling operations, Tenant and/or any contractor employed by
Tenant shall take particular care to comply with Paragraphs 5.2.4 and 5.2.8(d) of this Lease.
5.2.6 Cancellation of Insurance. Tenant shall strictly observe all Insurance Requirements and
shall not do or permit to be done anything that will cause a cancellation of any insurance coverage
of the Premises.
5.2.7 Continuous Operation. Subject to the terms of this Lease, and following completion of
the Improvements, Tenant shall continuously and diligently operate the Terminal on the Premises
throughout the Lease Term.
5.2.8 Environmental Protection. Tf;nant shall take all reasonable measures available to:
a) Avoid any pollution of the atmosphere or littering of land or water caused
by or originating in, on, or about Tenants' facilities.
b) Keep the noise; level on the leased Premises to a minimum in compliance
with applicable ordinances of the City so that Persons in the general neighborhood
will be able to comfortably enjoy other facilities leased by Landlord in the vicinity
of the leased Premises.
c) Keep the lights on the Leased Premises from adversely affecting the
operation or other use: of boats in the Marina.
d) Prevent all pollutants, including petroleum products of any nature, from
being discharged frorri the Premises into the harbor waters.
e) Mitigate exhaust emissions and other operating impact on marine/aquatic
life, water quality, and shorelines.
5.2.9 Supervision by Tenant. Tenant may in its sole discretion employ its own personnel or a
management contractor experienced and skilled in the management of operations as they are
contemplated under this Lease. This management contractor or Tenant's own personnel shall
give attention to efficient supervisior.~ of Lease operations, using its best skill, and shall keep
employed, at all times, a competent supervisor and any necessary assistants. Tenant's personnel
or the management contractor's supervisor or assistant shall be present at all times when ferry
vessels are loading or unloading passengers and when ferry vessels are being refueled or serviced,
and all directions given by the management company's supervisors shall be as binding as if given
by Tenant.
5.2.10 Protection of Leased Premises. Tenant shall maintain its facilities in such a manner as to
protect Landlord's property from damage, injury, loss, or liability arising from rainfall, and other
action of the elements, excepting suc;h as may be caused by fault or negligence of officers, agents,
employees or contractors of Landlord.
5.2.11 Service Routes. Ferry vessels operated by Tenant shall operate on those Service Routes to
and from the Terminal identified in Exhibit C and incorporated herein.
6. ASSESSMENT OF PREMISES
6.1 Title Report/Survey/Soils Stability Test. Tenant shall promptly obtain at its sole cost and
expense: (i} a preliminary title report (PTR) on the Premises from a Title Company of Landlord's
choice and if Tenant so elects (ii) a survey certified by a licensed civil engineer which accurately
locates and describes, among other things, the boundary lines of the Premises, topographical
elevations of the premises, all rights of way, restrictions, easements, encroachments and utility
lines. Tenant at its sole cost and expense, if required by any Law, shall obtain a soil investigation
report certified by a licensed civil engineer which discloses, among other things, results of tests
with respect to the soil and subsoil on the Premises, whether the soil is suitable to support the
Improvements contemplated herein, and if not suitable, what measures are necessary to render it
suitable and what type of foundation support will be required. Tenant shall within thirty (30) days
of receipt provide copies of same to Landlord. Within sixty (60) days of receipt of the above the
Tenant shall submit to Landlord a statement of requirements for clearing of any title or correcting
any physical defects on the Premises. Within sixty (60) days after receipt of said statement,
Landlord shall elect either to correct: such defects in a mamler reasonably acceptable to Tenant or
not correct such defects, in which case Tenant may waive the defects not corrected or this Lease
shall terminate and each party shall be released from its obligations (except for those obligations
incurred prior to such Termination) under this Lease. Landlord shall commence such correction
within sixty (60) days and shall proceed with all due diligence to complete same.
Tenant shall be entitled to receive, at Tenant's expense, a commitment for ALTA title insurance
insuring Tenant's leasehold interest iin the Premises in the amount of two million dollars
($2,000,000) and Landlord shall correct the physical defects it has agreed to correct, all at
Landlord's sole cost and expense, within sixty (60) days after Landlord's election to correct such
defects.
6.2 Environmental Site Assessment (Phase II). Upon completion of the Phase II study, if
Hazardous Material is discovered on. the Premises that had been placed on the Premises prior to
the Effective Date of this Lease and it becomes necessary to remove such waste, Landlord will
elect to perform and pay for the clean up in a reasonable time. If the parties are in disagreement
as to whom should bear the cost of the clean up, they will meet and confer and attempt to reach
agreement.
6.3 Reports in Possession of Landlord. Landlord shall provide legible copies to Tenant of the
following: (a) existing title reports and surveys on the Premises; (b) reports regarding elevations
and cross sections to be used; (c) go•vermnental reports from any and all agencies; (d) any
agreements with State, Federal, the City or county agencies, and any studies, reports and (e)
agreements with other contiguous and non-contiguous land owners, (f) conditions, covenants and
restrictions (CC&R's); (g) drawings, specifications and engineering reports, including, but not
limited to, Phase I and Phase II environmental reports, title reports, aerials, demographic reports,
drainage reports, marketing studies and zoiung documents pertaining to the real property which is
to be leased to Tenant and which Landlord has in its Possession or which are in the Possession of
the City.
7. WARRANTIES OF LANDLORD
7.1 Power and Authority. Landlord represents and warrants to Tenant that as of the Effective
Date (a) Landlord has legal power and full authority to enter into, be bound by, and comply with
the terms of this Lease, and (b) Landlord has obtained all necessary authorizations, consents and
approvals required for the execution, delivery and performance of this Lease and the
consummation of the transaction contemplated herein.
7.2 Taxes and Encumbrances. Landlord represents and warrants to Tenant that as of the
Effective Date (i) all taxes on the Premises, except current taxes not delinquent, have been paid;
and (ii) the Premises are free and clear of all tenancies or other rights of third parties, except for
the ownership rights of the City, whether oral or written, and that (iii) Landlord is able to and will
place Tenant in the peaceful and undi;>turbed possession on the Premises on said Effective Date.
7.3 Conflicts. The execution and delivery of this Lease, the consummation of the transaction
contemplated hereby, and the performance of or compliance with the terms, conditions and
covenants of this Lease will not violal:e or conflict with or result in the breach of any of the terms,
conditions or provisions of any agreement, judicial order or instrument to which Landlord is a
party or by which Landlord or any of its assets are bound.
7.4 Legal Proceedings to Ownersh~. Landlord represents, to the best of Landlord's
knowledge and belief, that no lawsuits or legal proceedings are pending or threatened regarding
the ownership, use, or possession of i:he property, or any part thereof, except as stated in this
Lease. Landlord agrees to indemnify and hold Tenant harmless from any and all claims, Damages,
judgments, liens, costs or expenses arising from any such lawsuits or legal proceedings which are
currently known to exist.
7.5 Condemnation. No condemnation proceedings are pending with respect to the real
property to be leased or any part thereof, or interest therein, and, to the best of Landlord's
knowledge and belief, none are contemplated.
7.6 Violations. Except as indicated in reports filed with the City by the civil engineering firm
CH2M Hill, there is not located on, i;n, about, or under the Premises to be leased any Hazardous
Material of which Landlord is aware and there are no past or present investigations, administrative
proceedings, threatened or pending, alleging non-compliance with or violation of any "Law or
Regulation" relating to the Premises or to any required environmental permits by Landlord nor
any third party. As used herein, "Law or Regulation" means and includes the Comprehensive
Environmental Response and Liability Act ("CERCLA" or the Federal Super Fund Act) as
amended by the Super Fund Amendments and Reauthorization Act of 1986 ("SARA") and any
other laws, ordinance or regulation relating to Hazardous Materials. Landlord will provide to
Tenant all reports and investigations commissioned by Landlord or the City and relating to
Hazardous Materials on the property that Landlord has in its possession. To the best of
Landlord's knowledge, there are no new, nor have there ever been, any above-ground or
underground storage tanks in or under the Premises to be leased about which Landlord has
knowledge.
7.7 Hazardous Material or Contamination. Any Hazardous Material or Contamination as
defined by any governmental agency having jurisdiction over the Premises, found during or
subsequent to the construction of the Project which is not a result of any act of Tenant or caused
by Tenant or any agents employee, contractor, subtenant, licensee or contractor of Tenant shall be
the responsibility of the City to mitigate to the extent required by a governmental agency with
regulatory jurisdiction over the Premises, provided that as long as the District remains Landlord, it
shall be responsible for remediation to the extent that such Hazardous Material or contamination
remediation costs are related to the repair and maintenance of the Leachate system constructed
pursuant to Section 16, subsection (c;l of the Joint Powers Agreement dated July 6, 1977;
provided, however, that improvement work beyond the scope of said Leachate system
constructed pursuant to the Joint Powers Agreement shall be the responsibility of the City.
Without limiting the generality of the foregoing, Landlord or the City, as owner of the property,
as the case may be, agrees to indemnify, hold harmless and defend Tenant from any and all claims,
losses, liabilities, demands, costs and fees (including attorney's fee) ~~vhich may relate to or arise
out of said Hazardous Material or Contamination which is not a result of any act, omission or
negligence of Tenant or caused by Tenant, or any agent, employee, contractor, subtenant, licensee
or contractor of Tenant, and shall include the duty to remediate and mitigate (including, but not
limited to, satisfying any other governmental agencies or administrative proceedings) and any
Hazardous Material or contamination problem concerning the Leachate system or the production
of methane which may result form Tenant's construction of the Improvements using normal
construction methods (e.g. excavation, pile driving) so long as Tenant is not negligent and does
not introduce any Hazardous Materials or contamination to the Premises.
8. IMPROVEMENTS
8.1 Tenant's Obligation to Provide Schematic Drawings. Landlord and Tenant intend to work
cooperatively throughout the design process to ensure that the Facility ultimately constructed by
Tenant meets with Landlord's approval while satisfying the requirements of the City and other
relevant permitting bodies. Landlord has in its possession prior to the Effective Date of this Lease
thirty-five percent (35%) terminal design products from Tenant. Notwithstanding Landlord's
possession of these design products, 'Tenant shall deliver to Landlord the design schematic
drawings it intends to submit for approval by the City and all other permitting bodies. Landlord
acknowledges that the design schematic drawings to be submitted by Tenant for permits will
reflect the same design and appearance agreed to by Landlord during the 35% terminal design
phase. Landlord shall have the right to approve or request modifications to said drawings
consistent with permitting and building code requirements; such approval shall not be
unreasonably withheld or delayed. Tenant shall inform Landlord in writing within thirty (30) days
after receiving permits or approvals from the City and all other relevant permitting bodies. Tenant
hereby agrees to construct the Facility on the Premises at its own cost, in substantial accordance
with the schematic drawings submitted to Landlord under the process described in this paragraph.
8.1.1 Tenant shall use its commercially reasonable efforts to submit to the City all necessary
application materials, plans, drawing:>, and specifications for discretionary land use approvals
permitting construction of the Termi~ial no later than three hundred sixty-five (365) days
following receipt of written notice from Landlord of approval of the final schematic drawings.
8.1.2 Tenant shall commence construction in an expeditious manner following receipt of all
required permits by the City and all agencies having jurisdiction over the Premises for the
construction of the Facility.
8.2 Improvement Plans. All Improvements and Alterations constructed by Tenant shall meet
all requirements of all government bodies or agencies having jurisdiction over such Improvements
or Alterations, and Tenant shall not make, or cause or suffer to be made, any Improvements or
Alterations to the Premises until Tenant has procured all regulatory approvals required to be
obtained.
8.3.1 Facility Plans. When approval of the building plans for the Facilities has been obtained
from the City, Tenant shall deliver two (2) sets of said plans to Landlord.
8.3.2 Agreements with Government Entities. Landlord agrees that Tenant may enter into any
contract, easement or agreement with the City, San Mateo County, the State of California or any
other governmental agency or body or public utility with reference to utility connections, street
improvements, easements or drainage; facilities that are necessary in order for Tenant to use the
Leased Premises in accordance with ]Paragraph 5.1 of this Lease, but notwithstanding the above,
Tenant shall notify Landlord of its intent to enter into any such contract, easement, or agreement
prior to executing them, and shall assume full financial responsibility for any expenditures or other
obligations Landlord maybe required to fulfill in order that the Provisions of this Paragraph be
carried out.
8.3.3 Prior Notice. Tenant shall provide ten (10) days written notice to Landlord prior to
Tenant's first entry on the Premises of the Tenant, its agents, employees, contractors or
subcontractors for the purpose of commencing construction; said notice shall specify the nature of
the work to be performed.
8.3.4 Landlord's Non-responsibilit}..Landlord assumes no liability or responsibility for any
defect in any structure by its approval of plans and specifications.
8.3.5 Notice of Non-Res~ponsibilitX. Landlord may post upon the leased Premises a notice of
non-responsibility.
8.3.6 Notice of Completion. Upon completion of construction of any Improvements or
Alterations, Tenant shall timely file or cause to be filed a notice of completion.
8.3.7 Construction. Tenant shall be; responsible for the construction of Improvements at its sole
cost and expense.
8.3.8 Contractors' Compliance with Law. Any contractor selected by Tenant to construct
Improvements on the Premises must comply with all relevant Laws and regulations, including the
payment of prevailing wages to workers employed by the Contractor.
8.4 Underground Conditions and (sradinQ. Landlord makes no covenants or warranties
regarding the condition of the soil or subsoil or any other condition of the Premises.
8.5 Tenant's Duty to Obtain Building Permits. Tenant shall obtain at its sole cost and
expense, all permits, approvals, certificates and licenses under applicable zoning, building and
safety and land use Laws and regulations as maybe required by any and all agencies having
jurisdiction over the Premises for the construction of the Facility as contemplated herein.
8.6 Ownership of Improvements I)urina the Lease Term. Other than upon Expiration or
Termination of this Lease in accordance with the terms herein, Landlord shall have no right, title,
or interest during the Lease Term in a,ny Improvement or Alteration hereafter constructed by
Tenant on the Premises.
8.7 Final Approved "As Built Plans." Tenant shall provide Landlord two (2) complete sets of
final approved "as built plans" within ninety (90) days after completion of the Improvements to
which they relate.
8.8 Builder's Risk and Other Insurance. Tenant shall provide to Landlord: (i) certificates of
insurance evidencing Special Form coverage for "builder's risk", (ii) evidence of workers'
compensation insurance covering all :Persons employed in connection with the construction of the
Improvements and Alterations and with respect to whom death or bodily injury claims could be
asserted against Landlord or the Prerruses, and (iii) evidence that Tenant has paid or caused to be
paid all premiums for coverage described in this paragraph 8.8 sufficient to assure maintenance of
all insurance required herein during t1.he anticipated course or the construction. Tenant shall
maintain, keep in force, and pay all Premiums required for all insurance mentioned herein at all
times during which construction work is in progress.
8.9 Performance Bond. Tenant shall provide Landlord with evidence of a performance bond
obtained by its general contractor for the construction of the Facility in amount recommended by
a licensed civil engineer that will be :sufficient to demolish the Facility and return the Premises to
the condition it was in on the Effective Date. Tenant covenants that it will return the Premises to
the condition it was in on the Effective Date in the event it fails to complete construction of the
Facilities.
9. ALTERATIONS AND ADL>ITIONS
9.1 General. If there is no Event: of Default, at the time, under this Lease, Tenant at its sole
cost and expense may make reasonable Alterations to the Premises during the term of this Lease
after construction of the Facility without the prior written consent of the Landlord; provided,
however, that any such Alterations (a) shall not substantially change the exterior character of the
Improvements or the gross area of the Improvements, (b} shall not effect any change in the use of
the Premises, (c) are completed in a timely manner, in a good and workmanlike manner and in
compliance with all Legal Requirements and Insurance Requirements, and (d) are promptly and
fully paid for by Tenant. Within thirty (30) days after completion of any such Alterations, Tenant
shall furnish Landlord with as-built drawings showing such Alterations. Notice shall be given to
Landlord prior to the commencement of any alterations to afford Landlord the opportunity to post
a notice of non-responsibility.
Any Alteration that would materially alter the use of the Premises or the exterior of any
Improvement must first be approved by Landlord in writing, which consent shall not be
unreasonably withheld or delayed.
9.2 Compliance with Laws. Tenant shall make any and all alterations or repairs on the
Premises that may be required by all I~aws from time to time applicable thereto. All Alterations
and Improvements permitted under tYiis Paragraph 9.2 shall be accomplished in a good and
workmanlike manner, in conformity with all Laws, Legal Requirements and Insurance
Requirements. Upon completion of a~.ny such work, Tenant shall supply Landlord "as built plans."
Tenant shall indemnify and hold Landlord and City harmless from and against all actions, claims
and Damages arising by reason of Tenant's failure to comply with the foregoing Provisions.
9.3 Surrender. Upon Expiration or Termination of this Lease as provided herein, any
Alteration made by Tenant under Provisions of this Paragraph 9 shall be deemed an Improvement
and the Provisions of Paragraph 2.5.3 shall govern the right of the parties with respect thereto.
9.4 Landlord's Obli7ations. Landlord shall have no obligation to alter, remodel, improve,
remain decorate or paint the Facility or any part thereof during the Lease Term.
9.5 Improvements Part of Realty. All Alterations or Improvements to the Premises made by or
on behalf of the Tenant which may not be removed without substantial injury to the Premises shall
become part of the realty immediately upon completion, shall be owned by Landlord and shall, at
the end of the term hereof, remain in the Premises without compensation to Tenant, unless
Landlord first waives its right to the .Alterations or Improvements in writing. Notwithstanding the
foregoing, Landlord at its option may require Tenant to remove any Alterations and
Improvements at Tenant's sole expense regardless of whether title has or has not vested in
Landlord, and regardless of whether consent was, or was not given. Tenant shall repair any
Damage occasioned by such removal. at Tenant's sole cost and expense.
10. CONDITION OF PREMISES, MAINTENANCE
10.1 Existing Conditions. Tenant has made a thorough inspection of the real property and is
familiar therewith, and has accepted the Premises in an "as is" physical condition. Landlord makes
no representation or warranty with respect to the condition of the Premises, including without
limitation, the seismological condition thereof, or their fitness or availability for any particular use,
and Landlord shall not be liable for a.ny latent or patent defect therein.
10.2 Tenant's Maintenance Obliaa.tions. Tenant shall, at all times during the Term of this Lease
after construction of the Facility, at its sole cost and expense, keep the Premises in Good
Condition and maintained in good working order, and condition and repair the Premises and all
Improvements and Alterations thereon. Tenant shall provide routine custodial Maintenance of the
Premises including Terminal and any parking area allocated to Tenant by Landlord at Tenant's
request, in accordance with the provisions of an operation manual prepared by Tenant and
approved Landlord. Routine Maintenance is defined as all ordinary housekeeping maintenance of
the Premises and equipment and replacement of supplies that are normally performed on a day-to-
daybasis in order to keep the Premises operating in an efficient, clean, safe, and Good Condition.
Routine Maintenance includes, but is not limited to:
1. Replacing light bulbs as needed where no specialized equipment is required to do so.
2. Regular cleaning of the Terminal area, storage spaces, passenger and vehicle entry/exit
lanes, parking areas, regular removal of interior and exterior graffiti, and daily
emptying of trash receptacles and ash trays.
3. Tenant may subcontract for major, overall steam cleaning of the parking facilities,
wherein the total facility areas are steam cleaned with industrial steam cleaning
equipment. Lessee may also subcontract for reduced area steam cleaning as needed in
specific areas, including beat limited to vehicle and pedestrian access areas. Emphasis is
placed on the steam cleaniing of pedestrian waiting/standing areas and walkways in
maintaining the first class standard of custodial Maintenance as called for by Landlord.
All work will be done in accordance with Best Management Practices and all
applicable laws and regulations.
Landlord shall not have any responsibility to perform any Maintenance on the Premises: Landlord
shall not be obligated to make any repairs, replacement or renewals of any kind, nature or
description whatsoever to the Premises nor to any Improvements or Alterations now or hereafter
located thereon. In the event that the Tenant, its agent or invitees cause any Damage (excepting
ordinary wear and tear) to the Premises, Landlord may repair the same at Tenant's expense and
Tenant shall irmnediately reimburse Landlord therefore. Tenant shall make or cause others to
make all repairs, replacements or renewals, whether interior or exterior or, structural or non-
structural, ordinary or extraordinary, foreseen or unforeseen, necessary or appropriate to maintain
the Premises in Good Condition. Tenant shall provide and maintain established standards of public
health and cleanliness established by Landlord.
In the event Tenant fails to maintain the Premises in Good Condition as required by this
Paragraph 10, Landlord may give Tenant written notice specifying what actions are required to
correct the conditions of the Premises. In the event Tenant fails to initiate such actions as are
indicated by Landlord in its notice within thirty (30) days after Tenant's receipt of such notice, or
thereafter fails to diligently proceed to complete such actions, such failure shall be deemed an
Event of Default within the meaning of Paragraph 18 and Landlord shall have all the rights,
powers and remedies provided for iri this Lease or at Law including the right to enter on the
Premises and maintain or cause the Maintenance off the Premises as required by this Paragraph
10. In such event Landlord shall be entitled to reimbursement for any reasonable amounts spent
plus a fee often percent (10%) of the cost of the wont performed ~~vhich shall be due and payable
fifteen (15) days after Tenant receives Landlord's statement therefore. In the event Tenant fails to
pay such amounts within such fifteen (15) day period, Landlord shall be entitled to interest
thereon at the Default Rate from thE; end of such fifteen (15) days until paid.
At least once each quarter, representative(s) of Tenant responsible for supporting and overseeing
operations of the Terminal shall meet with representatives} of Landlord and inspect the Premises
and confer on status of operations and possible improvements.
10.3 Tenant's Dredging Obligations. Tenant shall be responsible at its sole cost for
maintaining channel, fairway, and tur~ung basin depths within the Leased Premises as set forth in
Exhibit "A" attached hereto and incorporated by reference herein to permitted design depths
deeper than eight (8) feet by periodic dredging as necessary for the Term of this Lease, except
that Landlord shall be responsible at its sole cost for maintaining channel and fairway depths to
Landlord's design depth of eight (8) i:eet only.
10.4 Sianage Program. Tenant agrees to comply with Landlord's regulations governing
signage, and pay costs and operational expense of installing and maintaining signage for the
Terminal and directional signage on 1`/Iarina property. No signs, directional, guiding, and other
stripes, lines, direction and markings shall be installed or painted in or upon the Premises or
removed by Tenant without prior written consent of Landlord.
10.5 Use of Premises by Landlord. Landlord acknowledges that Tenant maybe required to
suspend use of the Premises from time to time. Tenant shall notify Landlord within a reasonable
period of time a$er its determination to suspend use of the Premises or when the Terminal and/or
parking area will not be in use for not less than five (5) days. Tenant shall also provide Landlord
within a reasonable period of time the approximate date it intends to resume use of the Premises,
Terminal or parking area.
10.6 Emergency Plan.
Tenant shall work with Landlord to complete a detailed emergency plan. Tenant shall
instruct all Persons employed by Tenant in the plan and the employees' responsibilities
relating to the plan. Copies oFthe plan shall be posted in a prominent location on the
Premises.
2. In the event of any major emergency or condition (i.e. power outage, flooding, fire,
natural catastrophe or any other unanticipated condition that would disrupt normal
operation of the Terminal or imperil customer or staff) that may reasonably result in a
threat to Persons or property, Tenant shall immediately contact Landlord by telephone and
Tenant Manager or Assistant Site Manager shall report to the Terminal and remain until
the emergency has been resolved. If the Landlord cannot be reached, Tenant shall make
continued efforts to reach other staffPersons as designated by the Landlord until a
landlord representative has b~°en notified. Landlord's facility operator is available 24
hours a day and can be reached by calling the Oyster Point Harbor Master, 650-952-0808;
alternatively, Tenant's manas;er may contact 911.
Tenant shall immediately erect and maintain such temporary signs, barricades, lights and
other devices as may be necessary to warn people of any dangerous or defective
conditions and shall take such actions as maybe necessary to reasonably protect people
from injury, loss or Damage which might result because of any such condition.
4. Any time a dangerous or defer;tive condition may reasonably be known by Tenant to exist
in the Premises or their environs, Tenant shall immediately take reasonable necessary
protective action by calling the; Oyster Point Marina/Parl~ Harbor Master and immediately
notify Landlord by telephone and in writing of such condition and protective action.
10.7 Security of Facilities. The security of the Premises shall be the responsibility of Tenant.
11. INDEMNIFICATION AND I?XCULPATION
11.1 Exculpation of Landlord. Landlord shall not be liable to Tenant for any Damage to
Tenant or to Tenant's property from a,ny cause other than as a direct result of Landlord's
negligence or willful and intentional misconduct.
11.2. Indemnification and Exculpation of Landlord. Tenant shall indemnify and hold Landlord,
the City, and their elected officials, ao;ents, officers, directors, contractors and employees
(collectively, "Agents"} harmless from, and shall defend them against any and all claims, demands,
direct or vicarious liability, attorney fees, causes of action or judgments, Damage, injury or loss
arising directly or indirectly out of: (a) any injury to or death of any person, including employees
of Tenant, or Damage to or destruction of any property occurring in, on or about the Premises, or
any part thereof from any cause whatsoever, (b) any Event of Default by Tenant in the
observance or performance of any of the terms, covenants or conditions of this Lease, (c) the use,
occupancy or condition of the Premises or the activities therein by Tenant, its agents, or clients,
customers, invitees, guests, members„ licensees, and assignees (collectively, "Invitees") or (d) any
release or discharge, or threatened release or discharge, of any substance, waste or material which
now or in the future is determined by any state, federal, or local governmental authority to be
capable of posing a present or potential risk of injury to health, safety, the environment or
property (collectively, "Hazardous Material") caused or allowed by Tenant in, under, on or about
the Premises, or into the environment:. This indemnity shall be enforceable except to the extent
that such indemnity is void or otherwise unenforceable under applicable Law in effect on, or
validly retroactive to, the date of this Lease. This indemnity shall exclude claims, liability, damage
or loss resulting solely and exclusively from the willful misconduct of Landlord or the City which
is not contributed to by any act of, or by any omission to perform some duty imposed by Law or
agreement on, Tenant, its agents or Invitees.
In addition to Tenant's obligation to indemnify Landlord and City, Tenant specifically
acknowledges and agrees that it has an immediate and independent obligation to defend Landlord
and City from any claim that actually or potentially falls within this indemnification provision,
even if the allegations are or maybe ;groundless, false or fraudulent. Tenant's obligation to defend
shall arise at the time such claim is tendered to Tenant by Landlord and/or City and shall continue
at all times thereafter. The foregoing; obligation to defend shall include without limitation,
indemnification from attorney's fees, court costs and all other litigation expenses. This
indemnification by Tenant shall begin from the first notice that any claim or demand is or maybe
made. The provisions of this section shall survive the termination of this Lease with respect to
any Damage, destruction, injury_ or death occurring prior to the termination of this Lease.
11.2.1 Exculpation. Tenant, as a material part of the consideration to be rendered to Landlord,
hereby waives any and all claims against Landlord, City and their Agents, and agrees to hold
Landlord, City and their Agents harmless from any claims for damages to goods, wares, goodwill,
merchandise, equipment, business opportunities and persons in, upon or about said Premises for
any cause arising at any time, including without limitation all claims arising from the joint or
concurrent negligence of Landlord or City or their Agents, but excluding any intentionally harmful
acts committed solely by Landlord or City.
11.2.2 Indemnification of Tenant. Landlord agrees to indemnify, defend and hold harmless
Tenant from and against, all demands, claims, attorneys' fees, causes of action or judgment for
injury to person, loss of life, or Damage to property occurring on said Premises arising form
Landlord's negligence, willful or intentional misconduct.
12. INSURANCE
12.1 Comprehensive General Liability Insurance. Prior to Tenant's entry upon the Premises
and in any event throughout the term. of this Lease, at Tenant's sole cost and expense, Tenant shall
keep or cause to be kept in force, at all times, for the protection of Landlord, City and Tenant and
naming Landlord as Additional Insured, Comprehensive General Liability Insurance, including
coverage for bodily injury, personal injury and property damage liability arising from the use,
occupancy, Maintenance, disuse, or c;ondition of the Premises and Improvements. The limits of
liability should be usual and customary to the Tenant's industry, but not less than one million
dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) aggregate, bodily injury
and property damage including products and completed operations. In addition, excess liability in
an amount not less than five million dollars ($5,000,000) will also be kept in full force and effect.
12.2 Tenant's Property Insurance. Throughout the term, at Tenant's sole cost and expense,
Tenant shall keep or cause to be kept insured with property insurance at all times for the
protection of Tenant, Lender and Lar.~dlord and naming Landlord as Additional Insured, all
Improvements located on or appurtenant to the Premises against loss or Damage by fire and such
other risks as are now or hereafter included in the Special Form, vandalism and malicious
mischief. The amount of the insurance shall be sufficient to prevent either Landlord or Tenant or
City from becoming a coinsurer under the Provisions of the policies, but in no event shall the
amount be less than one hundred percent (100%) of the then actual replacement cost (herein
called Full Insurable value). Landlord shall not carry any insurance the effect of which would be
to reduce the protection or payment to Tenant under any insurance that this Lease obligates
Tenant to carry. If any dispute arises as to whether the amount of insurance complies with the
above and said dispute cannot be resolved by agreement, Landlord may, not more often than
every two (2} years, request the carrier of the insurance then in force to determine the Full
Insurable Value as defined in this Provision, and the resulting determination shall be conclusive
between the parties for the purpose of'this paragraph. Tenant may include the holder of any
mortgage on the leasehold or on the fc;e or both as a loss payee. On Landlord's notice of demand,
Tenant shall include the holder of any mortgage on the fee as a loss payee to the extent of that
mortgage interest.
12.3 Employer's Liability and Workers' Compensation Insurance. Tenant, at its sole cost and
expense shall, during the Lease Term, obtain, maintain and keep in full force and effect, Workers'
Compensation Insurance as required by Law and Employer's Liability Insurance with limits or
liability as required by Law, but in no event less than $1,000,000 per each accident.
12.4 Additional insurance. In the event of any significant change in the use of the Premises,
Landlord shall have the right, during the Lease Term, to require Tenant at its sole cost and
expense to obtain, maintain and keep in full force and effect such other insurance with respect to
the Premises in such amounts and against such insurable hazards as would be reasonable under the
circumstances.
12.5 Waiver of Subrogation Rights,. The parties release each other, and their respective
authorized representatives, from any claims for Damage to the Premises or to the fixtures,
personal property, improvements or alterations of either District or Tenant in or on the Premises
which are caused by or result from ri sks insured against under any property insurance policies
carried by the parties and in force at the time of any such Damage, to the extent such claims for
damage are paid by such policies. Each party shall cause each property insurance policy obtained
by it to provide that the insurance company waives all right of recovery byway of subrogation
against the other party in connection with any Damage covered by any policy.
12.6 Other Insurance Matters. All the insurance required under this Lease shall: (i) be issued
by insurance companies authorized to do business in the State of California with a current
financial rating of at least an A Class XV or better as rated in the most recent edition of Best's
Key Rating Guide; (ii) be issued as a primary policy; (iii) contain an endorsement requiring thirty
(30) days written notice from the insurance company to Landlord before cancellation or material
change. Tenant shall name Landlord as an additional insured on any and all liability insurance
policies.
Each insurance policy required hereunder, or a Certificate of the policy, shall be deposited with
Landlord prior to the Commencemerrt Date of this Lease and not less than thirty (30) days before
expiration of the term of any policy then in force, except that the policy described in paragraph
12.1 or a certificate thereof shall be delivered to Landlord prior to Tenant's entry upon the
Premises.
12.7 Failure to Procure Insurance. If tenant fails or refuses to procure or to maintain insurance
required by this Lease or fails or refiises to furnish Landlord with required proof that the
insurance has been procured and is in full force and effect and paid for, Landlord shall have the
right, but not the obligation, upon five (5) days written notice to Tenant, to procure and maintain
such insurance. The premiums paid by Landlord shall be chargeable to Tenant and shall bear
interest at the legal rate then in effect :in the State of California. from the date when the premium is
paid by Landlord.
12.8 Increase in Amount. Landlord may require Tenant to increase the minimum dollar
amounts for insurance required by this Lease, but every such increase shall be reasonable under
the circumstances and in no event shall such increases more than double in any ten (10) year
period. If there is any dispute regarding any increase, Landlord and Tenant shall submit this issue
to an arbitrator and the matter shall bf; arbitrated pursuant to Paragraph 29.4 of this Lease.
12.9 Insurance durin~Constructior-. Before Tenant commences making major Alteration to
Tenant's Premises and before construction begins, Lessee shall obtain appropriate Certificates of
Insurance naming Landlord as Additional Insured from any contractor employed by Tenant to
make said alteration and provide Landlord with copies of said Insurance Certificates.
13. DAMAGE OR DESTRUCTION
13.1 Destruction Due to Risk Covered Insurance. If a total destruction (the rendering
totally unusable fifty percent (50%), or more of Tenant's improvements on the Leased Premises),
or a partial destruction (less than fifty per cent (50%)) occurs to Tenant-owned improvements,
the loss is covered by the insurance described in paragraph 12.2, Tenant shall within ninety (90)
days thereafter Commence and diligently prosecute the repair, restoration, or replacement such
that the Completed work, which maybe different in design, shall be equal in value, quality and use
to the condition of the improvements before the event giving rise to the work.
13.2 Destruction Due to Risk Not Covered by Insurance. If any of the Tenant-owned
improvements are damaged or destresyed by any casualty not covered by the insurance Provisions
of this Lease and if the leased Premises are hereby rendered unfit for the uses prescribed herein,
Tenant shall have the option of cleaning the land and returning it as it was at the time of the
inception of this Lease, including repairs of Docks 9 and 10, in which event, Tenant may
terminate this Lease, or rebuild the structure(s) in such a way that it would be comparable in use
and value (but not necessarily design.) to the structure(s) which had existed prior to the casualty.
14. TAKING
14.1 Definition. "Taking" means: (i) the acquisition of the Premises, or a portion thereof, or
an interest therein, by any governmental power, whether through legal proceedings or otherwise,
by a condemnor and (ii) a voluntary sale or transfer of the Premises, or a portion thereof or an
interest therein, by Landlord to any condemnor, either under threat of condemnation or while
legal proceedings for condemnation are pending.
14.2 Tenant Notice. Upon receipt by Landlord or Tenant of any notice that taking proceedings
are to be instituted the receiving party shall immediately notify in writing the other party to the
Lease. Landlord and Tenant may each file and prosecute their respective claims for an award.
14.3 Total Taking. This Lease shall terminate on the day of transfer of title or possession to
the condemning agency, whichever is first. Tenant may then present evidence of the worth of
remaining use of leasehold improvements and fixtures. Landlord shall also present evidence of the
value of the land. All sums, including damages and interest, awarded shall be deposited promptly
with a mutually agreeable escrow agent and shall be distributed in the following order of priority.
The foregoing having been stated, Landlord and Tenant agree that Tenant may seek separately
from the condemning agency its loss of good will or business opportunity, and said proceeds, if
any, shall be kept separate and apart from the other condemnation proceeds being deposited into
the mutually agreeable escrow account.
First, all real and personal property tares, if applicable, constituting a lien on the property or the
improvements;
Second, the balance due under any note secured by a leasehold mortgage to which the fee is not
Subordinated;
Third, the parties shall negotiate an equitable division of the balance of the award, failing which
the allocation shall be determined by arbitration in accordance with Paragraph 29.4 hereof. The
arbitrator(s) shall take into account the respective interests of the parties including but not limited
to the City's fee interest in the Premises and the bonus value, if any, of Tenant's leasehold
interest.
In the event the condemning agency i;> neither City nor Landlord, then the award shall be
distributed in the following order of priority:
First, all real and personal property taxes constituting a lien on the property or the improvements;
Second, to Landlord and City, collectively, an amount equal to the fair market value of the real
property excluding the Improvements, subject to the terms of this Lease;
Third, the balance due under any note: secured by a leasehold mortgage to which the fee is not
subordinated;
Fourth, if the fair market value of the improvements exceeds the amount payable to the leasehold
mortgage as provided above, from thf; balance of the award, if any, such excess amount shall be
allocated to Tenant in the proportion that the number of years (including any fraction of a year) of
the Term then unexpired bears to fifty-five, and the balance shall be allocated to Landlord and
City, collectively;
Fifth, the bonus value of this Lease, if' any, shall be divided among the Landlord, City and Tenant.
The share of the Tenant shall be a portion that the number of years (including any fraction of a
year) of the Term then unexpired bears to fifty-five. The balance shall be awarded to City and
Landlord, collectively; and
Sixth, any balance to Landlord and Ciity, collectively.
For the purpose of this paragraph, wherever there is reference to a portion of a condemnation
award being paid to Landlord and City, collectively, the amount payable (the "Proceeds") shall be
allocated between Landlord and City as follows:
There shall be distributed to Landlord an amount equal to the amount of rent Landlord would
have received from the Lease for the number of years unexpired on the Joint Powers Agreement,
or any extension thereof to be paid on an annual basis and not to exceed the condemnation award
received collectively by City and Landlord.
In the event the parties are unable to agree upon any of the valuations required to distribute a
condemnation award under this Article 14, each party will appoint an appraiser and the two
appraisers so appointed shall select a third appraiser and the three appraisers so selected shall
make the determination(s) of value. If the appraisers are unable to agree, the valuation in dispute
shall be determined by averaging the three valuations of the appraisers. Each appraiser shall be
MAI-qualified and shall have not less than five (5) years experience in appraising commercial real
estate in San Mateo County.
14.4 Partial Taking. (i) In the event of a partial taking leaving the remainder unusable for
operation of the Terminal, Tenant may elect to terminate this Lease as of date of transfer of title
or possessions in which event the parties shall negotiate an equitable division of the condemnation
award. If the parties are unable to as;ree upon such allocation it shall be determined by arbitration
in accordance with Paragraph 29.4 hereto provided that the award shall first go to pay the balance
due under any note secured by a leasehold mortgage to which the fee is not subordinated, and the
arbitrator(s) shall take into account t',he respective interests of the parties as provided in Paragraph
14.3 above. If the Tenant does not terminate, compensation shall be as if the remainder is usable.
(ii) In the event of a partial taking leaving the remainder usable for operation of the Terminal,
this Lease shall remain in full force and effect, covering the remaining property.
Tenant must give notice to Landlord of any of the above elections within forty-five (45) days after
the taking occurs. Tenant will be deemed to have knowledge of the impending acquisition on
Tenant's entry into negotiations with. the taking agency's representatives, on receipt of service of
complaint and summons, or order for immediate possession, or on receipt of a letter of inquiry
from the Landlord advising Tenant of the impending acquisition and requesting notice of Tenant's
resulting elections and contentions. :[f such notice is mailed but not signed by any authorized
agent of Tenant within ten (10) days of mailing, Tenant shall pay the cost of notifying a Manager
by personal service.
Tenant's notice shall contain a clear and unequivocal statement of the Tenant's election, reasons
for this election, Tenant's contention of compensation, and the reasons for these contentions.
Time is of the essence and the express purpose of the required notice of election, contentions, and
reasons is so the Landlord may rely on them in negotiations or litigation with the taking agency.
Tenant's contentions shall not be conclusive as to the amount of compensation, or usability, or
fair market value of the remainder, and any dispute of these issues shall be resolved by arbitration
in accordance with Paragraph 29.4 hereof.
Tenant's failure to give notice of election, contentions, and reasons shall constitute a waiver of all
rights to compensation.
14.5 Restoration. In the event of a partial taking leaving the remainder usable for operation
Tenant shall alter or reconstruct the Improvements as necessary to render the operation of the
Facility economically viable. The condemnation award shall be utilized by Tenant for this purpose
and any balance shall be paid to Landlord.
15. NO CLAIMS AGAINST LANDLORD; NO PARTNERSHIP
Nothing contained in this Lease gives the Tenant any right, power, or authority to contract for or
permit the performance of any labor or services or the furnishing of any material or other property
in such a fashion as would permit the making of any claim against Landlord or its interest in the
Premises. None of the Provisions or agreements herein contained is intended, nor shall the same
be deemed or construed, to create a partnership between Landlord and Tenant, to make them
joint ventures, or to make Landlord iri any way responsible for the debts or losses of Tenant.
16. INTEGRATED AGREEMErdT; MODIFICATION
This Lease contains all of the agreements of the parties hereto with respect to any matter for
which Provision is made in this Lease, and no prior agreement or understanding, oral or written,
express or implied, pertaining to any such matter shall be effective for any purpose. No
Provisions of this Lease maybe arnerided or added to and no consent or waiver shall be effective
except by an instrument in writing signed by the party to be bound by such instrument. The
parties acknowledge that all prior agreements, representations and negotiations are deemed
superseded by the execution of this Lease to the extent they are not incorporated herein.
17. TRANSFER OF TENANT'S INTEREST
Tenant shall not assign or otherwise transfer this Lease or any right or interest hereunder, or in or
to any of the Improvements, or sublet or license the use of the Premises, except that Tenant's
transfer of this Lease to its successor agency, the San Francisco Bay Area Water Emergency
Transportation Authority, or to other such successors as may be dictated by California law, shall
be valid and binding. No other assignment or transfer, whether voluntary or involuntary, by
merger or under legal process, through receivership or bankruptcy, or otherwise, and no such
subletting or licensing shall be valid or effective.
18. DEFAULT AND REMEDII=;S
18.1 Events of Default. If one or more of the following events ("Events of Default") shall
occur, Landlord may exercise any of~the rights and remedies specified in Paragraph 18.2:
(a) City fails to pay the on.e-time lump-sum rent payment as specified in Paragraph
2.2.1 when and as the same be;comes due and payable and such failure continues for a
period of thirty (30) days after written notice thereof is delivered to Tenant and thereafter
Tenant fails to reimburse Landlord pursuant to Paragraph 2.2.1;
(b) Tenant fails to comply with any Insurance Requirement, if such failure continues
for thirty (30) days after written notice thereof from Landlord to Tenant.
(c) Tenant fails to perform or comply with any other term or condition of this Lease
and such failure shall continue; for sixty (60) days after written notice thereof from
Landlord, and Tenant does nat, subject to Unavoidable Delays, within such period
commence with due diligence and dispatch the curing of such Default.
(d) Tenant makes a general assignment for the benefit of creditors, or admits in writing
its inability to pay its debts as they become due or files a petition in bankruptcy, or is
adjudged bankrupt or insolvent, or accepts or files a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, Law or regulation.
(e) Within one hundred twenty (120) 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 is not dismissed, or Tenant fails to corrunence defense of such
action and thereafter continues to prosecute such defense, or, if within one hundred
twenty days (120) days after 'the appointment without the consent or acquiescence of
Tenant, of any Trustee, receiver or liquidate any material part of its assets, such
appointment is not vacated, or Tenant fails to commence defense of such action and
thereafter continue to prosecute such defense of such action.
18.2 Landlord's Remedies. Upon any Event of Default Landlord shall have the following
remedies:
18.2.1 Tenant's Right to Possession Not Terminated. Landlord may continue this Lease in Full
force and effect, and the Lease will continue in effect as long as Landlord does not terminate
Tenant's right to possession.
18.2.2 Termination of Tenant's RiQ17t to Possession. Landlord may terminate Tenant's right to
possession of the Premises in the evf;nt of any event of Default as specified in Paragraph 18.1 and
should such event of Default continue for sixty (60) days after receipt of written notices by
Tenant from Landlord it shall be lawful for Landlord to terminate this Lease and enter upon and
take possession of said Premises. Tl1e Landlord may retain or dispose of the Premises in
accordance with applicable Law.
18.2.3 Landlord's Right to Cure Tenant's Default. Landlord at any time after the Tenant
commits a Default, may cure the Default at Tenant's cost. If Landlord at any time, by reason of
Tenant's Default, pays any sum or does any act that requires the payment of any sum, the sum
paid by Landlord shall be due immediately from Tenant to Landlord.
18.3 Interest on Unpaid Sums. Surns not paid when due pursuant to paragraphs 2.2.1 of this
Agreement shall bear interest at the Default Rate from the date due until paid. No interest shall
accrue or be paid for payments made no later than fifteen (15) days after the due date.
18.4 Late Charge. Late payment by Tenant to Landlord of any sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount being impractical to fix.
When a payment is not timely made a:nd such failure continues for fifteen (15) business days after
written notice thereof is delivered to Tenant, an additional late charge of five percent (5%) of the
amount due will be paid by Tenant to Landlord.
19. SURVIVAL OF TENANT'S OBLIGATIONS; LANDLORD' S EQUITABLE RELIEF
No Expiration or Termination of this Lease or by operation of Law or otherwise, shall relieve
Tenant of its liabilities and obligations hereunder which have then accrued, which shall survive
such Expiration or Termination, including, without limitation the right of Landlord for
indemnification against liability for personal injuries or for property Damage occurring prior to the
later of (i) Termination of this Lease or (ii) Tenant's vacation of the Premises, nor shall anything
in this Lease be deemed to affect the right of Landlord to equitable relief where such relief is
appropriate.
20. NO WAIVER BY LANDLO:EZD
The failure of the Landlord to seek rE;dress for violation of, or to insist on strict performance of,
any term or Provision of this Lease shall not be deemed a waiver of such violation or subsequent
act which would have originally constituted a violation from having all the force and effect of an
original violation. No delay or omission in the exercise or any right or remedy of Landlord upon
any Default by Tenant shall impair such a right or remedy or be construed as a waiver. No act or
conduct of Landlord, including, without limitation, the acceptance of keys to the Premises, shall
constitute an acceptance of the surrender of the Premises by Tenant before the Expiration or
Termination of this Lease. Only a written notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish a Termination of this Lease.
Landlord's consent to or approval of~ any act by Tenant requiring Landlord's consent or approval
shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any
subsequent act by Tenant. Any waiver by Landlord of any Default must be in writing and shall
not be a waiver of any other Default concerning the same or any other Provision of the Lease.
21. REMEDIES CUN[ULATIVE
Each right, power and remedy of Landlord provided for in this Lease is now or hereafter existing
at Law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Lease.
22. ENTRY BY LANDLORD
22.1 Entry for Inspection. Landlord and its respective authorized representatives shall have the
right to enter the Premises without notice at any times during normal business hours and subject
to Tenant's normal security requirements and, if required, accompanied at all times by a
representative of Tenant for the purpose of inspecting the same or for the purpose of doing any
work hereunder, necessitated by an Event of Default, and to take all such action thereon as may
be necessary or appropriate for any such purpose (but nothing herein contained in this Lease shall
create or imply any duty on the part of Landlord to make any such inspection or do any such
work).
22.2 Emergency Entry. Landlord may enter the Premises at any time, subject to government
security requirements, without notice, in the event of an emergency. Landlord shall have the right
to use any and all means that Landlord may deem proper in such an emergency in order to obtain
entry to the Premises. Entry to the Premises 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 a detainer of
the Premises, or an eviction of Lease from the Premises or any Portion of them.
22.3 No Liability. Landlord shall riot be liable in any manner, and Tenant hereby waives any
claim for damages, for any inconveni~°nce, disturbance, loss of business, nuisance, or other
damage, including without limitation any abatement or reduction in Lease fees due hereunder,
arising out of Landlord's entry onto the Premises as provided in this Provision, except Damage
resulting solely from the active negli`;ence or willful misconduct of Landlord or its authorized
representatives.
22.4 Non-Disturbance. Landlord :>hall use its best efforts to conduct its
activities on the Premises as allowed in this paragraph, in a manner which, to the extent
reasonably practicable, will cause the least possible inconvenience, annoyance or disturbance to
Tenant.
23. PERFORMANCE ON BEHALF OF TENANT
In the event that Tenant shall fail to make any payment or perform any act required hereunder to
be made or performed by Tenant, then Landlord may, but shall be under no obligation to, provide
Tenant with written notice and an opportunity to cure as specifically set forth herein, following
which Landlord may make such payrnent or perform such act, if appropriate under the
circumstances given the nature of Te:nant's operations at the Premises, with the same effect as if
made or performed by Tenant; provided however, that nothing contained in tlus paragraph shall
limit Landlord's obligation to provide written notice to Tenant under paragraph 18 of this Lease.
Entry by Landlord upon the Premises for such purpose shall not waive or release Tenant from any
obligation or Event of Default hereunder. Tenant shall reimburse (with interest at the Default
Rate) Landlord for all sums so paid by Landlord in connection with the performance of such act.
24. ACCEPTANCE OF SURRENDER
No modification, Termination or Surrender of this Lease or surrender of the Premises or any part
thereof or any interest therein by Tenant (except surrender upon Expiration or Termination of this
Lease) shall be valid or effective unless agreed to and accepted in writing by Landlord and no act
by any representative or agent of Landlord, other than such a written agreement and acceptance
by Landlord shall constitute an acceptance thereof.
25. ESTOPPEL CERTIFICATE :BY TENANT
Tenant will execute, acknowledge and deliver to Landlord within thirty (30) days after receipt of
Landlord's written request therefore a certificate certifying: (a) that this Lease is unmodified and
in full force and effect (or if there have been modifications, that this Lease is in full force and
effect as modified, and stating the modification}; (b) the dates, if any, to which any sums payable
hereunder have been paid, (c) that no notice has been received by Tenant of any Default which
has not been cured except as to Defaults specified in said certificate; (d) that Landlord is not in
default hereunder except as to Defaults specified in said and (e) any other matters reasonably
requested and related to this Lease. :[n the event Tenant fails to execute and return such
certificate to Landlord within said thirty (30) day period, Landlord may execute such certificate
on Tenant's behalf and agrees to provide Tenant with a copy of said certificate. Any such
certificate, whether executed by Tenant or Landlord on Tenant's behalf shall be binding upon
Tenant and maybe relied upon by any prospective purchaser or mortgagee of the Premises or any
part thereof.
26. ESTOPPEL CERTIFICATE BY LANDLORD
Landlord will execute, acknowledge and deliver to Tenant within thirty (30) days of Tenant's
written request, a Certificate certifying: (a) that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force and effect as modified,
and stating the modification); (b) the dates if any, to which any sums payable hereunder have been
paid; (c) whether or not to the knowledge of Landlord there are then existing any Defaults under
this Lease (and so specify the same); and (d) such other matters related to this Lease as are
reasonably requested by the requesting party. Any such certificate shall be binding on Landlord
and maybe relied upon by any prospective transferee of Tenant's interest under this Lease. In the
event Landlord fails to execute and return such certificate to Tenant within said thirty (30) day
period, Tenant may execute such certificate on Landlord's behalf and agrees to provide Landlord
with a copy of said Certificate.
27. CONVEYANCE BY LANDLORD
In case the original or any successor Landlord shall convey or otherwise dispose of Premises or its
interest therein, it shall thereupon bE; released from all liabilities and obligations of Landlord under
this Lease (except those accruing prior to such conveyance or other disposition) and such
liabilities and obligations shall be binding solely on the then owner of the Premises. Tenant waives
the protection of any statute or rule of law that gives or purports to give Tenant any right to
terminate this Lease or surrender possession upon the transfer of Landlord's interest.
28. PROVISIONS SUBJECT TO APPLICABLE LAW
Rights, powers and remedies provided herein maybe exercised only to the extent that exercise
thereof does not violate any applicable: Law, and are intended to be limited to the extent necessary
so that they will not render this Lease invalid or unenforceable.
29. NOTICES
Whenever any notice is required or permitted hereunder, such notice shall be in writing and shall
be personally delivered, sent by U. S. Registered or Certified Mail, return receipt requested,
postage prepaid, or sent by a nationally recognized overnight carrier service to the address set
forth below or at such other addresses; as are specified by written notice delivered in accordance
herewith:
Landlord: SAN MATED COUNTY HARBOR DISTRICT
400 Oyster Point Blvd. Suite 300
South San Francisco, CA 94080
Tenant: SAN FRANCISCO BAY WATER TRANSIT AUTHORITY
Pier 9, Suite 111
San Francisco, CA 94133
Any notice personally delivered as hereinabove provided shall be deemed effectively given on the
date of receipt of such notice. Any notice sent by U. S. Registered or Certified Mail or by a
nationally recognized overnight courier service shall be deemed effectively given on the date of
delivery or attempted delivery thereon, whichever is sooner.
29.1 Service of process. Concurrently with the execution of this Lease a form for the
irrevocable appointment of an agent ito receive service of process on behalf of the other party shall
be executed by each party.
29.2 Disputes Subject to Mediation and Arbitration. Any dispute between the parties relating
to the interpretation and enforcement of their rights and obligations under this Lease shall be
resolved solely by mediation and arbitration in accordance with the Provisions of Paragraphs 29.3
et seq. of this Lease.
29.3 Initial Mediation. With respE;ct to any dispute between the parties that is to be resolved by
arbitration, the parties shall attempt i~n good faith first to mediate such dispute and use their best
efforts to reach agreement on the matters in dispute. Within five (5) days of the request of any
party, the requesting party shall attempt to employ the services of a third Person mutually
acceptable to the parties to conduct such mediation within twenty-one (21) days of his
appointment. If the parties are unable to agree on such third Person, or, if on completion of such
mediation, the parties are unable to agree and settle the dispute, the dispute shall be referred to
arbitration in accordance with Paragraph 29.4.
29.4 Arbitration. Any dispute between the parties that is to be resolved by arbitration as
provided in Paragraph 29.2 shall be settled and decided by arbitration conducted in accordance
with the Commercial Arbitration Rules of the American Arbitration Association, as then in effect,
except as provided below. Any such arbitration shall be held and conducted in the County of San
Mateo by an arbitrator, who shall be selected by mutual agreement of the parties; if agreement is
not reached on the selection of an arbitrator within fifteen (15) days, then Landlord and Tenant
shall each choose an arbitrator, each of whom shall agree to select a third arbitrator who would
actually arbitrate the dispute between the parties.
The provisions of the Commercial Arbitration American Arbitration Association shall apply and
govern such arbitration, subject, howf;ver, to the following:
(a) Any demand for arbitration shall be in writing and must be made within a
reasonable time after the clairri, dispute or other matter in question has arisen. In no event
shall the demand for arbitration be made after the date that institution of legal or equitable
proceedings based on such claim, dispute, or other matter would be barred by the
applicable statute of limitations.
(b) The arbitrator or arbitrators appointed must be former or retired judges or
"attorneys" with at least ten (1.0) years experience in real property and commercial matters.
(c) All Proceedings involving the parties shall be reported by a Certified Shorthand
court reporter and written transcripts of the proceedings shall be prepared and made
available to the parties.
(d) The arbitrator or arbitrators shall prepare in writing and provide to the parties
factual findings and the reasons on which the decision of the arbitrator or arbitrators is
based.
(e) A final decision by thE; arbitrator or arbitrators must be made within ninety (90)
days from the date the arbitration proceedings are initiated.
(f) The prevailing party shall be awarded reasonable attorneys fees, expert and non-
expert witness costs and expenses, and other costs and expenses incurred in connection
with the arbitration, unless the arbitrator or arbitrators for good cause determine
otherwise.
(g) Costs and fees of the arbitrator or arbitrators shall be borne by the non-prevailing
party, unless the arbitrator or arbitrators for good cause determine otherwise.
(h) The award or decision of the arbitrator or arbitrators, which may include equitable
relief shall be final and judgm~°nt made be entered on it in accordance with applicable law
in any court having jurisdiction over the matter.
NOTICE: BY INITIALING IN THF: SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION
OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS
TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY II~tITIALING
IN THE SPACE BELOW YOU ARI=; GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED
IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION, AFTER AGREEII~IG TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEME]~T TO THIS ARBITRATION PROVISION IS
VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THI? MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES PROVISION TO NEUTRAL ARBITRATION.
Initials
Initials
Initials
30. ATTORNEY'S FEES
Tenant shall reimburse Landlord, upon demand, for any reasonable costs or expenses incurred by
Landlord in Connection with an Event of Default under this Lease, whether or not suit is
commenced or judgment entered. Such costs shall include legal fees, costs for experts or other
professional services, and costs incurred for the negotiation of a settlement, any enforcement of
rights or otherwise. If either party commences an action against the other party arising out of or
in connection with this Lease, the prevailing party shall be entitled to have and recover from the
losing party reasonable attorney's fees and costs of suit.
Litigation Expenses. If either party :hereto brings an action or proceeding (including any
cross-complaint or counterclaim) against the other party by reason of a Default, or otherwise
arising out of this Lease, the prevailing party in such action or proceeding shall be entitled to
recover from the other party its costs and expenses of suit, including but not limited to, reasonable
attorneys' fees, which fees shall be payable whether or not such action is prosecuted to judgment.
"Prevailing party" within the meaning of this paragraph shall include, without limitation, a party
who substantially obtains or defeats, as the case maybe, the relief sought in the action, whether by
compromise, settlement, judgment or the abandonment by the other party of its claim or defense.
Appeals. Attorneys' fees under this section shall include attorneys' fees and all other reasonable
costs and expenses incurred in connection with any appeal.
31. QUIET ENJOYMENT
Upon Tenant's tender of the one-time lump-sum payment due hereunder, Tenant shall have quiet
possession of the Premises for the Lease Term. If, at any time, Landlord's title is disputed, or
there is a change of ownership of Landlord's estate by any act of the parties or operation of Law,
Tenant may deposit in escrow any monies thereafter due until Tenant is furnished proof
satisfactory to it as to the party entitle;d thereto.
32. MISCELLANEOUS PROVISIONS
32.1 Time is of the Essence. Time is of the essence with respect to the performance of each
Provision of this Lease.
32.2 Successors and Assigns: App]icability to San Francisco Bad Area Water Emergency
Transportation Authority. Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Specifically, the parties intend and
understand that all terms of this Lease shall be binding upon the San Francisco Bay Area Water
Emergency Transportation Authority both under general contract law and under the San
Francisco Bay Area Water Emergency Transportation Response and Disaster Recovery Act
provisions governing transfer of contracts and obligations, including but not limited to
Government Code Section 66540.10 (b).
32.3 Payments ~ Tenant. Except as otherwise expressly provided herein, all sums payable by
Tenant to Landlord under this Lease shall be paid without notice. All sums payable by Tenant
shall be paid by good check in the currency of the United States at the office of Landlord or at
such place and to such Person as Landlord may from time to time designate by written notice to
Tenant.
32.4 Status of Parties on Termination of Lease. Except as provided in Paragraph 18, if either
party elects to Terminate this Lease as provided herein, on the date the Lease terminates the
parties shall be released from further liabilities and obligations not accrued as of the date of
Termination.
32.5 Exhibits/ Incorporation in Lease. All exhibits referred to in this Lease are attached to this
Lease and are incorporated herein by this reference.
32.6 Governing Law. This Lease shall be construed and interpreted in accordance with the
Laws of the State of California, and venue for any action relating thereto shall be in San Mateo
County.
32.7 Singular and Plural and Gender. When required by the context of this Lease, the singular
shall include the plural, the male the fE:male, and vice versa.
32.8 Joint and Several Obligations. "Party" shall mean Landlord or Tenant; and if more than
one Person or entity is Landlord or TE;nant, the obligations imposed on that Party shall be joint
and several.
32.9 Severability. The unenforceability, invalidity, or illegality of any Provision of this Lease
shall not render the other Provisions of this Lease unenforceable, invalid or illegal, and this Lease
shall remain in force and effect as if such unenforceable, invalid or illegal Provision had never been
a part of this Lease.
32.10 Binding Effect. Each and every Provision, agreement, terms, covenant and condition of
this Lease to be performed kept and observed by Landlord and Tenant shall be binding on any
party who legally acquires any rights or interest in this Lease from Landlord or Tenant. However,
Landlord shall have no obligation to ~'Cenant's successor unless the rights or interests of Tenant's
successor are acquired in accordance with the terms of this Lease.
32.11 Third Party Beneficiaries. There .are no third party beneficiaries of this Lease.
32.12 Interpretation. Tlus Lease shall conclusively be presumed to have been drafted jointly by
both parties hereto.
32.13 Authority. If either Party has a governing Board of Directors or similar governing body,
that party shall deliver to the other Parties upon the execution of this Lease evidence of that
Board's or governing body's approval. The Parties certify that the persons executing this Lease
have been given such authority by their respective Board or governing body.
32.14 Captions. Captions are included in this Lease for convenience only and do not constitute a
part of this Lease.
32.15 Section Headings. The section heading contained herein are
for convenience in reference and are not to be used to construe the intent of this Agreement or
any part thereof, nor to modify, amphify, or aid in the interpretation or construction of any of the
Provisions thereof.
3 5. MEMORANDUM OF LEASE
Concurrently with execution of this Lease, the parties shall execute and acknowledge a
Memorandum of Lease identifying the Lease to be recorded in San Mateo County. Upon the
request of either party, the parties shall execute and acknowledge further Memoranda of any
future amendments of this Lease.
The parties hereto ratify, confirm and adopt all of the terms and conditions of the Lease.
IN WITNESS WHEREOF, the Parties have executed this Lease on the day and year first above
written.
SAN MATEO COUNTY HARBOR DISTRICT
DATED: _ BY:
TENANT: SAN FRANCISCO BAY WATER AREA TRANSIT AUTHORITY
DATED: BY:
Agreed to and approved by:
CITY OF SOUTH SAN FRANCISCO
DATED:
BY:
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Consent to this Lease is hereby granted:
CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS
DATED: BY: