HomeMy WebLinkAboutReso 22-2001 RESOLUTION NO. 22-2001
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING AN ASSIGNMENT OF
INTERESTS IN THE GROUND LEASE BETWEEN THE CITY,
THE SAN MATEO COUNTY HARBOR DISTRICT AND S.M.
REALTY RELATED TO PROPERTY AT THE OYSTER POINT
MARINA
WHEREAS, the City and San Mateo County Harbor District have entered into a Joint
Powers Agreement to manage the property at the Oyster Point Marina; and,
WHEREAS, the San Mateo County Harbor District approved an assignment of interests
under the ground lease from S.M. Realty to Marine Collection, L.L.C.; and,
WHEREAS, because the City is a party to the Agreement, the City's consent is required
in order to complete the assignment of interests.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco as follows:
1. The City Council approves the document titled "Agreement and Release" and the
assignment of interests contemplated therein, attached hereto as Exhibit A, related to the Oyster
Point Marina.
2. The City Council further authorizes the City Manager to execute the Agreement
and Release on behalf of the City.
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 Special meeting held on the 28th day
of March , 2001 by the following vote:
AYES:
Councilmembers Pedro Gonzalez and Karvl Matsumoto, Mayor Pro Tem Eugene
R. Mullin and Mayor Josel~h A. Fernekes
NOES: None.
ABSTAIN: None.
ABSENT: Councilman John R. Penna
ATTEST:
/~/ City Clerk
J:\wpdWlnrsw\405\001 ~,ES OL2001La, ssignment_SMCHarbor_SMRealty_Feb26.DOC
FROM...MEY!RS' NAVE, RIBACK, SILVER & WILSON~
(FRI) ~,2~'01 li'21/ST, 11'20/NO, 4860102612
AGREI~lVi~NT .AND RELE.~SE
WHEP~AS, the San Mateo County l-Iarbor District 0aereinst~er "Harbor District") as
lessor, and S.M. Realty (hereinafter "S.M. Realty") as tenant, are parties to a 1987 Lease and
Management Agreement 0tercinattcr the "Lease"), which Lease is approved by the City of South
San Francisco and the South San Francisco Park and Recreation District and wh/ch Lease
Realty sccks to assign to Marine Collection LLC. Copies of the Lease and Management
Agreement, including the General Conditions of thc Lease, the Assignment in favor of Summit
Marine Corporation (through which it became the tenant), and thc Certificate of Amendment of
the Articles of Incorporation of Summit Marine Corporation which changed its name to S.M.
Realty, Inc., are attached hereto and incorporalxxt herein as Exhibits A through D; and
WHEREAS, the Harbor District has contended, pursuant to a March 16, 1999 letter, a
copy of which is attached hereto as Exhibit E, that S.M. Realty has breached the Lease and
S.M. Realty has disputed the contentions of the Harbor District both verbally and in writing; and
WHEREAS, to resoIvc their differences, the Harbor District and S.M. Realty entered into
a Tolling Agreement, a copy of which is attached hereto as Exhibit F, executed by S.M. Realty
on January 28, 2000, by the Harbor DistriCt on February 2, 2000, and by the City of South San
Francisco on March g, 2000, staying any conteanplated legal proccdurcs against one another
without prejudice and tolling the applicable statutes of Imitation to allow thc parties to resolve
any differences or disputes there may'be among them without resort to formal litigation;' and
WHEREAS, S,M. Realty has at its own expense, used its best efforts to expeditiously
complete the in-place upgrading of the two 10,000 gallon underground storage tanks, situated on
land adjacent to that described in the Lease, together with the lines leading from them to the
fueling dock, and thereafter restored fueling services; and
00096/T003/1102887 1
? 2
FROM MEYERS, NAVE, RIBACK, SILVER & P 3
WILSON (FRI) 3,23'01 11:21/SZli:20/NO, 4860102612
WHEREAS, S.M. Realty has paid $2,089.43'to the Harbor District to reimburse the
Harbor District's claim for Lease revenues lostWhile the fueling service was inoperable, and
Harbor District acknowledges receipt of Such payment as full compensation for its claim; and
WHEREAS, S.M. Realty has paid $3,500.00 to the Harbor District to reimburse Harbor
District's claim for attorney's fees incurred resolving the Lease dispute and Harbor District
acknowledges receipt of such payment as full compensation for its claim; and
WHEREAS, S.M. Realty and its subtenant have agreed with Harbor District to improved
security measures for the Lease premix, including: (i) that the storage yards will be better
patrolled and will be securely locked at night; (ii) non-operating lights have been repaired or
replaced; and (iii) the use ora private security finn for increased patrols will be further
considered though is not required; and
WHEREAS, S.M. Realty desires to assigu the Lea~ to Marine Collection LLC and be
relieved of all rights, duties, and obligations under the Lease after the date of assignment'and
Marine Collection LLC is willing to assume the rights duties and obligations imposed by the
Lease arising after the date of such transfer provided that the Harbor District represents and
warrants that S.M. Realty has fully performed its obligations under the Lease and is not in breach
of the Lease as of the date that this Agreement and the Harbor District's consent to the
assignment both become effective, and
WHEREAS, on November 1, 2000, at its duly noticed public hearing, the Harbor District
Commissioners unanimously acted and consented to the above described request for assignment
subject only to final agreement as to the form and substance and final execution of this
Agreement and Release (Agreement) to finally and conclusively resolve the parties' differences;
and
00096/T003/1102887
FROM P 4
MEYERS, NAVE, RIBACK, SILVER &: WILSON (FRI) 3, 23' 01 ii :21/ST, 11:20/NO, 4860102612
WHEREAS, the parties intend to mutually release each other from all fights, claims and
actions past or present, as set forth more fully below, and to facilitate S.M. gcalty's assignment
of thc Lease to Marine Collection LLC;
NOW THEREFORE, for ami in consideration of the mutual promises and actions set
forth herein, the partie~ agree as follows:
1. The Harbor Dislrict represents and warrants that $.M. Realty has fully pcrformcd its
obligations under the Lease and is not in breach of the Lease as of thc datc that this Agreement
and the Harbor District's consent to the assignment both become effective
2. Thc parties, intending to resolve their differences, hereby agree and do mutually release
each other from all fights, claims ~gl actions past or present, arising from the Lease, including
the following:
A. The n~iilm~ re~wred to in the Harbor District's March 16, 1999 letter
attached hereto as Era'bit £;
B.Any past failure to Igovide fuel and boat repair services at the premises
C. Thc Ap~ 1999 fuel le~k.
3. The parties wac'ye the provisions of Civil Code § 1542 with respect to the matters covered
in this release, which provides:
"A general release does not extend to claims which
the creditor does not know. or suspect to exist in his
favor at the time of executing the Release, which if
known by him must have ~y affected his
settlement with the debtor."
00096/T003/1102887
FROM MEYERS, NAVE, RIBACK, SILVER &WILSON (FRI) B, 23'01 11:21/ST, i1:20/N0,4860102612 P 5
4. Thc parties hereto acknowledge that nothing contained within this instrument shall be an
acknowlcdgmcnt of liability or an admission in any respect on thc part of any parties hereto.
5. The parties signing this document, and those executing it on theh' behalf, represent and
warrant that they have full and complete authority to enter into this Agreemcnt and that no
consent or approval is needed from any other P~rson or entity. Exhibit O attached hereto is the
resolution of the Harbor District Board approving this Agreement. Thc parties, and those signing
on behalf of the parties, represent, warrant and agree that all action necessary to enable them to
execute and be legally bound by the Agreement has been properly taken and completed.
6. In thc event of any action at law or in equity between ~e parties arising from or in
conn~tion with this Agreement, thc prevailing.party shall recover reasonable attorneys fee~ and
. other costs incurred in that action in addition to any other relief, and such attorneys fees and costs
· shall be included in and as a part of any judsment in such action.
7. This Agreement contains the entire agreement pertaining to thc subject matter in it and
supercedes all, if any, prior and contemporaneous agreements representations and understandings
of the parties. No supplement, modification or amendment of this Agn~ement shall be binding
unless executed in writing by ali parties hereto.
8. The parties hereto acknowledge that this Agreement has been negotiated and entered into
in California and expressly agree that that this Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of California.
9. This Agreement may b~ ex~ in one or more counterparts, each of which shall be an
original, and ail of which together shall constitute a single instrument.
10. In all other respects, the lease and general conditions referred to herein are reaffirmed by
the parties hereto.
00096/T003/l102g$7
FROM MEYERS, NAVE, RIBACK, SILVER& WILSON (FRI) 3,23'01 11:21/ST, 11'20/NO, 4860102612 P 6
IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth
beside the signature of co~h, which Agreement Sh.ll bc deemed cffccrive on thc date that thc last
party hereto affixes its signature.
SAN MATEO COUNTY HARBOR DISTRICT
#1 Johnmn Pier
Half Moon Bay, California 94019
· ~- ~ ~_--~,--.~..... ~. I~ . .. .
"8ally'C~~Pres, ~t, Boardof~ '~io~rs
$~. ~TY
675 No~ F~t S~et, S~te 900
S~ Jo~, CA 95112
00096/T003/1102887
FROM MEYERS, NAVE, RIBACK, SILVER&WILSON (FRI) 3,23'01 11'22/ST, 11'20/NO, 4860102612 P 7
We hereby consent to, appwve .of and agree to be bound by the terms of this Agreement.
We, and those executing this document on our behalf, represent, warrant and agree that all action
necessary to enable us to execute and bo legally bound by this Agreement has been properly
taken and completed.
Dated:_ /~///'/
MARINE COLLECTION LLC
290 Pismo Street
San Luis Obispo, California 93401
Dated:
CITY OF SOUTH SAN FRANCISCO
400 Grand Avenue
South San Francisco, California 94080
By
Date, d:
SOUTH SAN FRANCISCO PARKS AND
RECREATION DEPARTMENT
By: City of South San Francisco, its Ooveming
Body
By
Its
00096/T003/1102887
FROM MEYERS, NAVE, RIBACK, SILVER &WILSON (FRI) 3.23'01 ii:22/ST, 11'20/NO. 4860102612 P 8
APPROVED AS TO FORM:
AARONSON, DICKERSON, COl-IN &
LANZONE
By
TI:.RRA t. W!LP
A~6'~ey"ror4.Mv'Re ~*
Dated:
MEYERS, NAVE, RIBACK, SILVER
.By
Steven :Fl Mattas, Esq.,
Attorney for City of South San Francisco
00096/T003/1102887