HomeMy WebLinkAboutReso 121-2008RESOLUTION NO. 121-2008
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING THE AMENDED. AND
RESTATED OYSTER POINT MARINA FERRY TERMINAL
LEASE AGREEMENT WITH THE SAN MATED COUNTY
HARBOR DISTRICT AND THE SAN FRANCISCO BAY
WATER EMERGENCY TRANSPORTATION AUTHORITY
~~ND APPROVING A BUDGET AMENDMENT
WHEREAS, the City owns the real property and water area known as Oyster Point
Marina ("Marina"); and
WHEREAS, in 1977, 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, at a regular meeting on December 12, 2007, the City Council authorized the
execution of the Ground Lease and License ("Original Lease") for the Oyster Point Ferry
Terminal with the Harbor District and the WTA, conferring upon the WTA rights over the Ferry
Terminal for ferry service operations and improvements installation up to 15 feet above ground
level for fifty-five years; and
WHEREAS, on January 1, 2008, the WTA ceased to exist and the San Francisco Bay
Area Water Emergency Transportation Authority ("WETA") became its successor entity; and
WHEREAS, since the execution of the Original Lease, the parties have negotiated
additional terms and seek to amend and restate the Original Lease.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco does hereby:
1. Approves the Amended and Restated 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 Emergency Transportation 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. Authorizes the City Manager to sign and execute, on behalf of the City, the
Amended and Restated 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.
3. Authorizes an amendment to the 2008-2009 Capital Improvement Budget to
appropriate $1,340,000 from the Redevelopment Agency 2006 Bond Funds for the dredging and
breakwater capital improvement cost reimbursement rent payment specified in the lease.
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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 22"d day of
December, 2008 by the following vote:
AYES: Councilmembers Pedro Gonzalez, Richard A. Garbarino, and Kevin Mullin,
`lice Mayor Mark Addie~o
NOES: Mayor Karyl Matsumoto
ABSTAIN:
ABSENT: None
O
ATTEST: ~~~-'--.
ity Cle
Exhibit A
Ground Lease
AMENDED AND RESTATED GROUND LEASE AND LICENSE
This Amended and Restated, Ground Lease and License ("Lease") is made and entered into as of
this day of December ~~;2008, by and between San Mateo County Harbor District
("Landlord"), having its principal place of business at 400 Oyster Point Blvd.; Suite X98;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 T"Triur~iiEmer~encv Transvortation Authority, ("Tenant"), having its principal place of
business at Pier 9, Suite 111, San Francisco, CA °^~- '941 I 1 with references to the following
facts and objectives:
RECITALS
WHEREAS, the City is the owner and Landlord is the operator of those certain parcels of real
property and water areas situated in the 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 ~-A. 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 r~it~oval of
a r ..Y..,.,.>>
x i s ti n~ dc~c l:_s,_ ~)_ a«d_ L U and_dredging activities within the leased Premises - -E-#~
++~-~~~-51---10), land common carrier ferry vessels for the purposes of passenger
embarkation and debarkation, use fifty (50) vehicle parking spaces, and refuel ferry vessels 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 warranties set forth in Paragraph 7 of this Lease, Tenant
acknowledges that Landlord has made 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.
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WHEREAS, Landlord City and the San Francisco Bav Area Water Transit Authority (the
"Original Tenant"1 areviously executed a Ground Lease and License dated as of December 28,
2007 (the "Ori final Lease" }.
WHEREAS, Tenant is the successor entity to the Original Tenant pursuant to the terms of Senate
Bill 976 (2007 08 Sessionl codified at Cal Gov't Code Sec 66540 et sea., which further
provides that Original Tenant "shall transfer the title and ownership of all property within its
control and ownership to" Tenant.
WHEREAS, Landlord, City and Tenant desire to amend and restate the Original Lease in its
entire
~.rnu~ •r-ucP~Fnv~Now therefore, for and in consideration ~+''°'°n~° of the Premises and of
the mutual obligations, agreements, and representations and warranties herein contained, the
parties do hereby agree as follows:
1. 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 -~f 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.
Cam: 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; ageDam e
includes death.
Damages: a monetary compensation or indemnity that can be recovered by any person
who has suffered ageDam a to his persenPerson, 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 everrtEvent of de€aul~l) ~lt•
Effective D~:te: Date of execution of the Lease by all parties hereto.
Expiration: the coming to an end of the time specified in the Lease as its duration, including any
a ~*°„~;^~ *°~Extension "berm
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Facili :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 RecLuirements: all terms of any insurance policy covering or applicable to the
p~esPremises or any part thereof, all requirements of the issuer of any such policy, and all
orders, rules, regulations and other requirements of the National Board of Fire Underwriters (or
any other body exercising similar functions} applicable to or affecting the p~~rsesPremises or
any alteration or part thereof or any use or condition of the p~~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 tame to time.
"Landlord" shall also mean the City, when it becomes the successor to the interest of San Mateo
County Har~~or District upon the expiration of said Joint Powers Agreement.
Law: any judicial decision, statute, constitution, ordinance, resolution, regulation, mile,
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.
Le~a1 Reciuirements: all laws, statutes, 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
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officers, foreseen or unforeseen, ordinary or extraordinary, which now 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 any part fi3ereeft ereon.
License: t~eThe exclusive right to land common carrier €e~yFerry vessels solely for the purpose
of refueling and passenger embarkation and debarkation at the Oyster Point Ferry Terminal,
which license is incorporated by reference and is a part of this Leaselease.
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 ' °n~~nLease 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, c,r other stipulation in the Lease that defines or otherwise controls, establishes or
limits the performance required or permitted by either party.
Rent: a1-1A11 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 de~ienDestruction.
Tenant's Personal Property: the equipment, signs, furniture, furnishings, merchandise, anal
moveable property placed in the Premises 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 may be; 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
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civil liability, such delay shall be deemed to be an Unavoidable Delay if Tenant agrees in writing
to indemnify Landlord and hold it harmless from and against any liability, damage, cost, expense,
claim or cause of action, including; without limitation, 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 X42.5 of this Lease.
2. AGREEMENT TO LEASE
2.1 Effect of Original I ease Tenant Landlord and City agree that this Lease completely
amends a_ d restates the entirety of the Original Lease which shall be of no further force and
effect as of the date that all signatories to this Lease execute the Lease.
?~-2.2. 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 tv 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 rights to airspace above the roof of the Facility other than air
space rights for signs which may be 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 conditons
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 rights that would endanger or impair the Improvements or
interfere with the activities taking place 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 2 1 Pu~ose 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 steal' be made available to the public without any illegal discrimination as defined by
California and/or Federal law.
The immediate purpose of this Lease is the development of the Premises for construction,
epe~ieHOaerations 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-:2.2.2. Cooperation Among Tenants. Tenant shall cooperate with all other tenants of
Landlord who will be operating enterprises in the vicinity of the Premises, and shall conduct its
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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 the Premises. If the operations of Tenan± are
impaired becc,use of any acts or omissions of such other tenants, Tenant shall have no claim
against Landlord on that account.
~?2.3 . 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 berecorded- if this lease or a memorandum of ease
has be n recorded Notwithstanding that the Commencement Date occurs after execution of this
Lease this Lease shall be in full f rce and effect from and after execution of this Lease by all
parties hereto.
~~-2.3.1 Rent Pa tnent. Tenant agrees that rentRent in the amount of ~~~98AThree
Million Six Hundred Sixty 'T'housand Dollars ($3 b60 0001("Rent") shall be owed to Landlord in
~, .., ,
one lump sum, payable °-'''°'"''~^+~ Tenant ~,.a~~ i4° ° ~..c" ''<, +''° `~`;'`. The parties
contemplate that the
tk° ~e_ea Dr°....,;r°_ '__ *-~$ast~r.Rent navment will be made by Tenant using State
Proposition 1 B funds available to the Tenant through the State Office of Homeland Security.
Tenant will work closely with Landlord to expedite navment of Rent in full as soon after
execution of this Lease as possible working within the regulations requirements and restrictions
of the funding source and administering agency Tenant shall make payment of the Rent dir _ c~tl ~
to the Department of Boating and Waterways which shall be fully appliea pY ine Levaru11~11~
o lv to reduce Landlord's outstanding loan balance.
In addition to the Rent payment required herein City shall pay to Landlord a sing_I_ loin sum
payment of One Million Tree Hundred Forty Thous~,d Dollars ($1 340 000) ("Costs"1 to
compensate Landlord for costs directly inc ed by Landlord in connection with the Terminal
roiect This payment of Costs to Landlord by City shall not be governed by the~rocedure set
forth in the paragraph above and shall be aid by the Citv directly to Lan o
-~:~2.3.2 Right of Entry. During the period commencing upon the Effective Date and
continuing through the Commencement Date, Tenant 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. '~ °_~ '~ " r°"*'°"
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> >
' N_otwithstandinathe foreeoin~,
Tenant's right of entry '^ +'~° Dr°-"'"°~shall not include any construction activities until Rent has
been paid un er the terms of para~ranh 2 3.1 herein.
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.
~-3-:~ 4. Tenant's First Ri t to Ne og tiate. 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 into negotiations with any third parry for lease of the
Premises.
~:-L2.4.1. 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 Landlord makes an offer to a third party to
lease the Premises, receives an offer from a third 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 end 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 terms anal 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 thai Tenant
accepts the new terms and conditions.
X42.5. Early Termination / Inabilit~to Obtain Building Permit. If Tenant is unable to
obtain a building permit from the City to construct 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 parry shall be released from its obligations under this Lease effective upon the date
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of such notice. For Humoses of clarification only the parties hereto acknowledge that this
paragraph 2 5 does not provide an open-ended right of termination by anv party but is exHlicitly
limited to the circumstance where Tenant is unable after exHendin~ reasonable efforts, to obtain
a building Hermit. In the event that theme fails to issue a building hermit for the Terminal
within one year of the date of this I ease anv Rent Havments made to date will be repaid in full
by the entity receiving the Havment of Rent on behalf of the Tenant and to the entity Hrovidin~
funding for such Rent Havment which funding entity name Tenant will Hrovide to Landlord.
X2.6. End of Lease Term.
~~2 6.1. 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 geed-ce~itienGood Condition except for [a] ordinary weak and tear
occurring after the last necessazy Maintenance made by Tenant, or [b] destruction tQ the
Premises covered by Paragraphs 13.1 and 13.2. Any damage or deterioration of the Premises
shall not be deemed ordinary weaz and teaz 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 Tenant's failure to surrender the Premises, including but not
limited to and without limitation, claims made by a succeeding tenant resulrng from Tenant's
failure to surrender the Premises, and Tenant waives all claims against Landlord for any Damage
to Tenant res~.~lting from Landlord's retention or disposition of any Improvements,
a~lta~ie~~Alterations, or Tenant's Personal Property. Tenant shall be liable to Landlord for all
costs incurred by Landlord for storing, removing, or disposing of 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 and shall pay all costs and attorney's
fees as may be necessazy 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.
X2.6.2 Tenant's Personal Property. Tenant shall remove all of Tenant's Personal
Property, and shall perform all Restoration made necessary 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 Properly 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 e~Tenant's Personal Property as provided herein.
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Tenant shall be liable to Landlord for Landlord's costs for storing, removing and disposing of
any Tenant's Personal Property.
?2.6.3 Ownership of Improvements. Upon Expiration or Termination of this Lease, title
to such immovable Improvements, including all buildings, structures, fnesFixtures 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.
~:-2.7. Holding Over. Unless the Term 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
tune.
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 pnwi-siensProvisions 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, lump-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 X2.7 shall be construed
as consent by Landlord to any holding over by Tenant.
3. IlvIPOSITjONS
Due to its status as a government entity, Tenant is not subject to real property taxation. Tenant
agrees to provide such information as may be 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 Qthe 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.
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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 Damages 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 iJSE
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 used 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 docks as 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 in 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 l,ublic 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, assisting, aiding or abetting in any act that constitutes a violation
of any Law.
b) 9pe~~Tenant's operations hereunder m{tsts all not obstruct vessel or
vehicle traffic on Marina waters or land area. including use of Landlord's guest
dock by Landlord and guest vessels.
5.2.2. Compliance with Legal Requirements. Tenant; at Tenant's sole cost and expense,
promptly shall comply with all Laws 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 Prerises or any
pert~Portion thereof, including; without limitation, the Landlord (collectiveiy. "Laws"1 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 Premises. Compliance with all Laws shall include compliance
1180371.1
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with all requirements of each regulatory agency that has jurisdiction over the Premises including
but not limited to the Department of Boating and Waterways: and the San Francisco Bav
Conservation and Development Commission ("BCDC"1. Tenant's compliance with BCDC
reauirements shall include but not be limited to installation of improvements for public access at
Tenant's sole cost as required by BCDC as shown in Exhibit D attached hereto and incoroorated
by reference herein.
5.2.3. Waste; :Nuisance. Tenant shall not cause, maintain or permit any unreasonable
annoyance or nuisance in, on, or about the Premises 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 geed-se~itienGood
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 Tenant'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 of Hazardous 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 s~ or~:'~~lnvitees,
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 agext~A en or ~iteesInv' es, 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 Lease by City, Landlord or their sue.
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
1180371.1
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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 Remote. Prior to Termination of this Lease, Tenant, at its sole cost and
expense, shall investigate, remove, remediate, and/or abate any and all Hazardous Materials
introduced in, on, under or about the Premises by Tenant, its age~~s~ or Invitees.
Further, Tenant, at its sole cost and expense, shall remove any Hazardous Material discovered on
the Premises during the Term of this Lease which is required to be removed by any governmental
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 a~;e~s~s.
5.2.5 Fueling of Common Carrier Ferry 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 running along the Marina shoreline_ or shall be placed
underneath the said public trail so as not to cause a safety hazard for trail users.
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 vessel$ at the Leased Premises.
5.2.5.4 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current
form a s~~i€e~planSafety Plan to govern fueling operations and provide a copy of said safety
Safety Plan to Landlord.
5.2.5.5 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current
form a ~ °' °^~" "^~~=~Y'""-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.
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5.2.6 Cancellation of Insurance. Tenant shall strictly observe all h~:~ee
requ~~entslnsurance 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. Tenant 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 from 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 supervision 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
acrion of the elements, excepting such 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.
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6. ASSESSMENT OF PREMISES
6.1 Title ReportlSurvey/Soils Stability Test. Tenant mav. at its sole option,
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 manner
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 in 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). Tenant may at its sole option. or shall, if
reauired by anv applicable ~overnm ntal a~encv obtain a Phase II Limited Site Characterization
Studv ("Phase II"l. 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 ~ewhom should bear the
cost of the clean up, they will meet and confer and attempt to reach agreement.
b.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) governmental reports from any and all agencies; (d) any
agreements with State, €ede~Federal, the City or E'ec un 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,
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aerials, demographic reports, drainage reports, marketing studies and zoning 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 undisturbed possession eft 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 violate or conflict with or result in the breach of any of the terms,
conditions or provisions of any agreement, judicital 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 Ownershiy. 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 the 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, in, 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"3 or the Federal Super
Fuad 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
1180371.1
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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-ate, any above-ground or
underground storage tanks in or under the Premises to be leased.
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 ~a ent 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
leasbeteLeachate system constructed pursuant to Section 16, subsection (c) of the Joint Powers
Agreement dated July 6, 1977; provided, however, that improvement work beyond the scope of
said leasl~atei,eachate 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
fees) which 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 h~eLeachate system or the production of methane which may result from 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 ,ease 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 pernutting 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.
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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, drawings, and specifications for discretionary land use approvals
permitting construction of the Terminal 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
~~ 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 may be required to fulfill in order that the Provisions of this ~~
4~Para~raph 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-responsibility. Landlord assumes no liability or responsibility for any
defect in any structure by its approval of plans and specifications.
8.3.5 Notice ofNon-Responsibility. Landlord may post upon the leased Premises a notice of
non-responsibility.
8.3.6 Notice of Com letion. Upon completion of construction of any Improvements or
Alterations, Tenant shall timely file or cause to be filed a notice of completion.
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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 Grading. 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 may be 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 During 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 any 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 Premises, 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 the anticipated course of 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 ci ril 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 ADDITIONS
9.1 General. If there is no Event of Default3 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
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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 bP given to
Landlord prial to the commencement of any alterations to afford Landlord the opportunity to post
a notice ofnon-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 Laws from time to time applicable thereto. All Alterations
and Improvements permitted under this 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 any 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 ''2.6.3 shall govern the right of the parties with respect
thereto.
9.4 Landlord's Obligations. Landlord shall have no obligation to alter, remodel, improve,
repair, 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 was3 or was not given. Tenant shall repair
any Damage occasioned by such removal at Tenant's sole cost and expense.
10. CONDITION OF PREMISES, MA]Q~'TENANCE
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
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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 any latent or patent defect therein.
10.2 Tenant's Maintenance Obligations. 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-day basis 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 but limited to vehicle and pedestrian access areas. Emphasis
is placed on the steam cleaning of pedestrian waiting/standing areas and walkways in
maintaining the first class standard of custodial Maintenance as called for by Best
Landlord. All work will be done in accordance with ~~
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 immediately reimburse'Landlord therefor. 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 ~r 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 Condirion 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,
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powers and remedies provided for in this Lease or at Law including the right to enter on the
Premises and maintain or cause the Maintenance of 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 of ten percent (10%) of the cost of the work performed which shall be due and payable
fifteen (15} days after Tenant receives Landlord's statement therefor. 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 representative(s) of Landlord and inspect the Premises
and confer on status of operations and possible improvements.
10.3 Tenant's Dredging Obli ations. Tenant shall be responsible at its sole cost for
maintaining channel, fairway, and turning 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 far maintaining channel and fairway depths to
Landlord's design depth of eight (8;) feet only.
10.4 Signage 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 Marina 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 may be required to
suspend use of the Premises from time to time. Tenant shall notify Landlord within a reasonable
period of time after 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.
1. 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 of the 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 Eustex~e~customer or staff) that may reasonably
result in a threat to persensPersons 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
1180371.1
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reached, Tenant shall make continued efforts to reach other staff ~sPersons as
designated by the Landlord until a landlord representative has been 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 manager may contact 9l 1.
3. 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 may be necessary to reasonably protect people
from injury, loss or Damage which might result because of any such condition.
4. Any time a dangerous or defective 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/Park 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 EXCULPATION
11.1 Exculpation of Landlord. Landlord shall not be liable to Tenant for any Damage to
Tenant or to Tenant's property from any 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, agents, 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") ca~.ised or allowed by
Tenant in, under, on or about the Premises, or into the environment. This indemnity shall be
enforceable °xcept 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.
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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 may be 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 may be
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 from
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, 'T'enant
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 condition 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 ($5,000,000) will also be kept in full
force and effect.
12.2 Tenant's Property Insurance. Throughout the term, at Tenant's sole cost and expense,
Tenant shall keep or cause to be kept insured with property insurance at all times for the
protection of Tenant, Lender and Landlord and naming Landlord as Additional Insured, all
Improvements located on or appurtenant to the Premises against loss or Damage by fire and such
other risks as are now or hereafter included in the Special Form, vandalism and malicious
nuschief. The amount of the insurance shall be sufficient to prevent either Landlord or Tenant
or City from becoming a coinsurer under the Provisions of the policies, but in no event shall the
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amount be less than one hundred percent (100%) of the then actual replacement cost (herein
called Full Insurable Value). Landlord shall not carry any insurance the effect of which would be
to reduce the protection or payment to Tenant under any insurance that this Lease obligates
Tenant to carry. If any dispute arises as to whether the amount of insurance complies with the
above and said dispute cannot be resolved by agreement, Landlord may, not more o$en 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 fee 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 Employeer's Liability and Workers' Compensation Insurance. Tenant} at its sole cost and
expense shall, daring 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 clauns 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 risks 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 by way 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 prunary 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 ali liability insurance
policies.
Each insurance policy required hereunder, or a Certificate of the policy, shall be deposited with
Landlord prior to the Commencement 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.
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12.7 Failure to Procure Insurance. If Tenant fails or refuses to procure or to maintain
insurance required by this Lease or fails or refuses to fiunish 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
prenuum 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 be arbitrated pursuant to Paragraph 29.4 of this Lease.
12.9 Insurance duringLConstruction. 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 by Insurance. If a total destruction (the rendering
totally unusable of 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 may be 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 destroyed 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 clearing the land and returning it as it was at the time of the
inception of this Lease, including :repairs of Docks 9 and 1 U, 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
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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
enc its loss of ood will or business opportunity, and said
separately from the condemning ag y g
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 taxes, 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 a h 29.4 hereof. The
the allocation shall be determined by arbitrae rive ~e es~ Of the parties ~c uding but not limited
arbitrator(s) shall take mto account the resp
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 is neither City nor Landlord, then the award shall be
distributed in the following order cif priority:
First, all real and personal property takes 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 amountPX~ableatmoo t shat lbed
mortgage as provided above, from the balance of the award, if any, such
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-free, and the balance shall be allocated to Landlord and
City, collectively;
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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 n fumbe~e balancemshall be awarded to
fraction of a year) of the Term then unexpired bears to fifty
City and Landlord, collectively; and
Sixth, any balance to Landlord and City, 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 a Joint Powers Agreement,
have received from the Lease for the number of years unexpired on th
or any extension thereof to be paid an an annual basis and not to exceed the condemnation awazd
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 appomt an appraiser and the two
appraisers so appointed shall select a third appraiser and the three appr es the valuation m dispute
make the determination(s) of value. If the appraisers are unable to agre ,
shall be determined by averaging the three valuations of the appraisers. Each appraiser shall be
MAI ualified and shall have not less than five (5) years experience in appraising commercial
-cl
real estate in San Mateo County.
14.4 Partial Taking :(i) In the event of a partial taking leaving the ~ ~~ a of trsa n~fer of title
operation of the Terminal, Tenant may elect to terminate this Leas
or possessions in which event the parties shall negotiate an n u hballocation. it shall be
condemnation awazd. If the parties are unable to agree upo
h 29.4 hereto provided that the award shall
determined by arbitration in accordance with Paragrap e ~ which the fee is
first go to pay the balance due under any note secured by a leasehold mortgag
not subordinated, and the arbitrator(s) shall take into account the 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.
of the above elections within forty-five {45) days
Tenant must give notice to Landlord of any ~ uisition
aftex the taking occurs. Tenant will be deemed to have knowTedgesentat veers on r~eceip of service
on Tenant's entry into negotiations with the taking agency s p
of com hint and summons, or order for immediate possession, or on receipt of II tr~ of mq~
P
from the Landlord advising Tenant of the impending acquisition and requesting
Tenant's resulting elections and contentions. If such notice is mailed but not signed by any
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authorized agFnt 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 deeuned or construed, to create a partnership between Landlord and Tenant, to
make them joint ventures, or to make Landlord in any way responsible for the debts or losses of
Tenant.
16. INTEGRATED AGREEMENT; 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 may be amended 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 '
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gas approved in ~vritin~ by Landlord. 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 REMEDIE',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 one-time lump-sum rent payment as specified in Paragraph
2.2.1 when and as the same becomes 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 ''2.3.1;
(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 not, 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; an r
(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 commence 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.
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18.2.2 Termination of Tenant's Right to Possession. Landlord may terminate Tenant's right to
possession of `he Premises in the event 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. Tne Landlord may retain or dispose of the Premises in
accordance with applicable Law.
18.2.3 Landlord's Ri~,ht to Cure Tenant's Default. Landlord at any time after the Tenant
conunits a Default, may cure the Default at Tenant's cost. Lf 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. Sums not paid when due pursuant to papks
''~varagravh 2.3.1_ 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 and 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.
18.5 Right of Termination For and after the date revenue ferry service begins at the .Terminal,
in the event Tenant fails to overate any fem service to or from the Terminal for a continuous
period of two (21 years or more. which failure is not due to Unaviodable Delays the City shall
have the right to terminate this Lease on thirty (301 days' advance written notice. If City
terminates the Lease vursuant to this Section 18 5 Tenant shall have a co to mumg license to use
the Premises for the vuroose of providing emergency services and overations to and from the
Facility during the entirety of the Lease Term For the nurooses of this Section 18.5.
"Unavoidable Delay" shall include failure to obtain financing for operation of the Terminal.
Landlord hereby recognizes and accents the City's right of termination pursuant to this Section
18.5.
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 LANDLORD
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The failure of the Landlord to seek redress for violation of, or to insist on strict performance of,
any term or Provision of this Lease :>hall 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 ~f 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 GUMULATNE
Each right, power and remedy of Landlord provided for in this Lease 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 Entrx for Insyection. Landlord and its respective authorized representatives shall have the
right to enter the Premises without :notice at any time 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 park 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 not be liable in any manner, and Tenant hereby waives any
claim for damages, for any inconvenience, 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 negligence or willful misconduct of Landlord or its authorized
representatives.
1180371.1
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22.4 Non-Disturbance. Landlord. shall use its best efforts to conduct its
activities on ±he 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. PERFORCE 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 payment or perform such act, if appropriate under the
circumstances given the nature of T'enant's operations at the Premises, with the same effect as if
made or performed by Tenant; provided; however, that nothing contained in this 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 thereunder. 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 CERTTFICAT'E BY TENANT
Tenant will execute, acknowledge and deliver to Landlord within thirty (30) days after receipt of
Landlord's written request therefor 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 certificate; and (e) any other matters
reasonably requested and related to this Lease. In 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 may be relied upon by any prospective purchaser or mortgagee of the Premises
or any part thereof.
26. ESTOPPEL CERTIFICA'CE BY LANDLORD
1180371.1
_~~_
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 may be 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 Landiord's behalf and agrees to provide
Landlord with a copy of said Certificate.
27. CgNJEYANCE 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. Tenant
hereby recognizes that Citv is the successor in interest to Landlord in the event Landlord
dissolves or otherwise discontinues by operation of law or otherwise.
28. PROVISIONS SUBJECT 'TO APPLICABLE LAW
Rights, powers and remedies proviided herein may be 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 ar permitted hereunder, such notice shall be in writing and shall
be personall;~ 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 AREA WATER TD~'`T~c~E ER FNCY
"TRANSPORTATION AUTHORITY
1180371.1
_~~_
Pier 9, Suite 111
~.~,-~' San Francisco, CA 94111
Any notice personally delivered as }lereinabove 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 h reon, whichever is sooner.
29.1 Service of $recess rU OCess- Concurrently with the execution of this Lease a form for the
irrevocable appointment of an agent to receive service of process on behalf of the other parry
shall be executed by each parry.
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 respect to any dispute between the parties that is to be resolved
by arbitration, the parties shall attempt in 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 i~~erson
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 s~ich 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 Arbitrations of the American Arbitration Association
shall apply and govern such arbitration, subject, however, to the following:
(a) Any demand for arbitration shall be in writing and must be made within a
reasonable time after the claim, 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.
1180371.1
_~~_
(b) The arbitrator or arbitrators appointed must be former or retired judges or
"attorneys" with at least ten (10) yeazs- experience in real property and commercial
matters.
(c) All proceedings involving the parties shall be reported by a certified shorthand
court reporter and written tr~~nscripts 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 judgment shall be entered on it in accordance with applicable law
in any court having jurisdiction over the matter.
NOTICE: BY I1~TITIALING IN THE 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 INITIALING IN
THE SPACE BELOW YaU ARE 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 AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY.
WE HAVE READ AND UNDEF;5TAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES" ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES PROVISION TO NEUTRAL ARBITRATION.
Initials
1180371.1
_ ~~_
Initials
Initials
30. ATTORNEY'S FEES
Tenant shall reimburse Landlord, ulwn 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 fires and costs of suit.
Liti ation Ex uses. 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 fetes 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 may be, the relief sought in
the action, whether by compromise, settlement, judgment or the abandonment by the other party
of its claim or defense.
App als. 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
ent due hereunder for Rent, Tenant shall
Upon Tenant s tender of the one-time lump-sum paym
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 ass to the party entitled thereto.
32. RECOGNITION OF LEASE
The parties acknowledge that this, Lease is presently subiect to certain lien rights of the Califf~rni_a
Department of Boatinc, and Waterways ("DBW") In the event such hen continues o ap l~v t~
the Premises after avproval of this Lease by DBW nod if DBW succeeds to Lanalora s 1n~erest
in the Premises. Tenant or it a ~thorized successors and assigns if any) shall immectiateiv and
1180371.1
_~~_
without further action by DBW. Tenant or any other party automatically become the tenant of
and attorn to and reco nize DBW as the Landlord under this Lease for the time period throw
November 10.2026, and DBW sha_L'.l immediately and without further action by Landlord or
Tenant automatically become the landlord to and reco~riize Tenant as the tenant under the Lease
without modification or revision. Notwithstandine that the foreQOin~ provisions of this Section
are self-operative, upon reauest of :L,andlord or DBW Tenant shall execute and deliver to
Landlord and to DBW an attornment agreement in recordable form confirming the foregoing and
otherwise in form and substance acrPn+..able to Landlord and DBW Tenant hereby constitutes
and appoints Landlord or its be ic~iarv as the Tenant's attorney in fact to execute any such
instruments of attornment for and on behalf of Tenant This Section shall be self-operative, and
no further instrument of attornment need be required by DBW DBW hereby grants its consent
to these provisions by its exec to ion of the Lease DBW and Tenant hereby reco~uze the
followina• (i) that City is the successor in interest to Landlord in the event Landlord dissolves or
otherwise discontinues by operation of law or otherwise (iil that DBW may or may not have
continuing lien rights when and if ~'itv succeeds to ~dlord and (iii) that this Article 32 shall
c ntin e o ~plv in the event such_lien rights continue
3~__MISCELLANEOUS PROVISIONS
3~1-33.1 Time is of the Essence. Time is of the essence with respect to the
performance of each Provision of this Lease.
~~ n ~ A n•nr+n t1 y.. ~~n, ~~~~hi 4n Cnr, j'a ~. •~'Fib'll~
~~~-~=f~/~' ~1~7TTf'7RC7T71T~T0
j ~t~ ~ 1,t ~
~ -~:,~ .. -[~fl~-~Yittrr~#14}T +~'cam-n'-ii'c--~';:,~,~;~-f~~?F:
{{ Cr, n•~nnl~ 4~v +a 1•oc. ~rt4 Tl'~CfRSIQ
~ J ~' r
1
.2 Onl A r ement. Thi Least a entire an only agreement between the Parties, and
33
supersedes any and all other lease. covenants and agreements between the Parties This Lease
shall not be effective until execution and delivery of the Lease by each of Landlord. Tenant, and
('itv and either written approval or execution and delivery of the Lease by DBW.
333.3 Paymen_ts by 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
+ +t,o .,~4;no ~~
by Tenant shall be paid by good check in the currency of the United States
- - --~' t Tnrnnt
x:433.4 Status of Parties on Termination of Lease. Except as provided in Paragraph 18, if
either p~yLandlord or Tenant elects to Terminate this Lease as provided herein, on the date the
1180371.1
_~~_
Lease terminates the parties shall be released from further liabilities and obligations not accrued
as of the date of Termination.
~?53~ Exhibits:/ Ir~cor~oration in Lease. All exhibits referred to in this Lease are
attached to this Lease and are incorporated herein by this reference.
3~~3.6_ 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.
~~.7 Singular and Plural and Gender. When required by the context of this Lease, the
singular shall include the plural, the male the female, and vice versa_
« -
_ ,
,,,~ ~o~,o,.,,,
3933. Severability. The urienforceability, invalidity, or illegality of any Provision of this
Lease shall not render the other Provisions of this Lease unenforceable, invalid or illegal, anal this
Lease shall remain in force and ei~e;ct as if such unenforceable, invalid or illegal Provision had
never been a part of this Lease.
~-}-93.9 Binding Effect. Each and every Provision, agreement, erms, 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. ,
~?.l-}-33.10 Third Party Beneficiaries. There are no third party beneficiaries of this Lease.
3~-X33.11 Interpretation. This Lease shall conclusively be presumed to have been drafted
jointly by both parties hereto.
3~-X33.12 Authori If e}the~ n~ 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.
3~~33. l 3 Captions. Captions are included in this Lease for convenience only and do
not constitute a part of this Lease.
~}s~3,~,14 Section He~adinns. The section heading contained herein are for
convenience in reference and axe :not to be used to construe the intent of this Agreement or any
part thereof, nor to modify, amplify, or aid in the interpretation or construction of any of the
Provisions thereof.
1180371.1
_~,~_
33 15 Successors and Assigns. Subiect to the terms of Article 17 the terms covenants and
conditions contained in this l_~ase shall be.bindin __u~_on anc~, inure_t~ the benefit c~i_1he_ heirs.
successors, executors. administrator:~ and assiens of the parties to this Lease.
334. 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 Parl:ies have executed this Lease on the day and year first above
written.
SAN MATEO COUNTY HARBO:[t DISTRICT
DATED: BY:
T-~~A~SAN FRANCISCO BA.Y "~'-~~~A~A Tp~c~wATER EMERGENCY
TRANSPORTATION. AUTHORITY
DATED:
BY:
Agreed to and approved by:
CITY OF SOUTH SAN FRANCISCO
DATED:
BY:
rr~ieM,~c~fifi+f~k~k~k~k~k~k~k~k~k~k~k~k~k#~k~k~k~k# ~zrz~e~ieM~ie~ieok~~k~k~#~k~k~k~~k~k~k#~k*~k~k~k~k~k.
1180371.1
_~~_
CONSENT TO THE TERMS OF "I'HE LEASE IS HEREBY GRANTED:
CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS
DATED:
--~: BY:
1180371.1
_~~_
~Xi~IBIT A~
LEGAL DESCRIPTION AND DEPICTION OF DEMI ED PREMISES
LEGAL DESCRIPTION-
The description of the Leased Premises for the Oyster Point Ferry Terminal ("Terminal"1 as
illustrated in the "Water Transit Authority South San Francisco Ferry Terminal Partial Site
Layout Plan (East Basin}" attached therewith and incoroorated by reference herein is as follows:
An area of land and water surroundin~~~±nd adiacent to the Terminal whose boon cries running
north/ outh are on either side of d parallel to the Terminal extending northward from the
northern or waterside edge of the e~~istin~ pedestrian and bicycle path identified on the Layout
Plan as "Existin~~Bay Trail" for approximately three hundred sevent~(3701 feet and whose
northern edge runs east west for approximately one hundred twenty-six ~ 261 feet and whose
southern_edQe runs east/west for approximately two hundred forty four X244}feet at a distance
approximately fifty-five (55 fee south of the Terminal entrance The easternmost edge oI the
landslide ~or[on of the Leas Premises is approximately forty five (451 feet east of the eastern
north/south waterside boundary of_~the Leased Premises and approximately five (51 feet west of
the exist~n¢ restroom foundation.
DEPICTION• SEE A'I"I'ACHED
1180371.1
-~4-
1180371.1
_~~_
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~tRVICE DESCRIPTION
Revenue service shall overate betweE;n Jack London Sauare in Oakland and the Ouster Point
Marina in South San Francisco.
Ferrv vessels may also travel to and :from Ouster Point Marina at various times as needed for
operational and maintenance issues:
1180371.1
_~~_
EXHIBIT D
R('DC PUBLIC ACCESS RF,niTiRF,MFNTS
1180371.1
~~_
EXHIBIT D
,. ,~
' ~ `,,~ _ - -- ~ ` ` - ( )PUBLIC ACCESS ~ _
~~ -•~ ~ _ ' ~ r~==
~ ~ ( ~ ~~ ~ .~% URING BOARDING AND- ~'
' ~ ~ ' ' ~ ~ DISEMBARKING ONLY ' '
',,', ~{ ~ ~ I ~ 3. - `~ ~ ~~~~ GROSS AREA: 6,650 5F _ _. ~ . - _ - _ ` - - - -
' { I i _ I ~ NET AREA: 3,550 SE_ _ __ _ ~
1 ,~ r r ~ -'
11 i r ~ I ! ----- - - ~---
~, , ~ I i
~- _
I li ~ ~ I __ __~ I'.
< ~~
1!f l ~ ~ ~ 1 CI ti ~, ~____-~ ~ - --~ ! ---
` i __
,;r f ~rr ~ t' ~ '~, ~ ~~\ ~ ~i ~ {N) PUBLIC ACCESS OPEN. ~ ~ ~
I DURING FERRY TERMINAL ~ '
jr 1 l 11 ; ~' `'~ I ~ II .I ~ 11 ~~ ~~~ OPERATING HOURS ~ _ . _ 4 ,_ _ _ _ ~ _ _ _.1 ;__ _ _.
' !;' ~ I ' WIDTH: 15'-0" ' '
,,'.~' ~! r! r I i~ ' I ~~ '~, ~ ~~ LENGTH: t55'-o" --- ' - _ - _~ 1 __
l I ~ ~, ' ~ ~ AREA: 2,300 SF ~~ ~~ i~~
lIj I ~, l \ ---
i ;' / I ; 1 PUBLIC ACCESS ~IIE~NING= _ _ , ` - - - -
'~ `•, ~ `•T~R . OPEN ALL TIMES!,r ~
~ ~ ,' ;
'~ ~ ~ W10TH~ , \' ~~ ~~
_ .__ ---- _.. {E} NQR7td~ ,`,~N1CLttDES IN6F .~RA9S)---"~~' ` - ---~,_._.--- _ - _-
BA~''ii~-Ail:~~,:` 5(TTt.~~^^AR t,400~ 1'-----,-- ~RE-6Rf1DED-RhtD-- -
' IM- ~3+ 3
. •-- •. ~ti 2 BENCHES)---•_~ ~ ~' - ,:
----------- - -..~ __._-- - =-K dA- ~ .POR-f16FJ-
' ~ _. ~ _
S ). - _- ___ ~ ~ ~ # OF E BAY 'fI~AIL
L
-- - -- --- -:` ~_~ 11--- - - (Gross `' ~ _ _~$L-C P gRKI ~ 1 -tNkYBIKE Ohl, ~ (E) RESTROOMS
I + ~ ~ '~ .~ - _~ LOCKERS -- - -- - -
{IJ) ENHANCED 1 ~' - - '-~.. J ~-' - - - -- - - `
PED/BIKE ACCESS TRAIL i - ~ ~ __ --j -.. __ . ~ ~ $
'LENGTH: 340' _ . i--. - -'"
AREA: 3.450 SF ~ -`'~- i ~-~: - -
(INCLUDES HIGH VISIBILITY ~ ,\ pys ~ __ - -~ _ _.
MARKRJG OF CROSSWALKS ' •: ~ I ,, -- Y"1CyR pp!!yr --- ^,~~- -~Defls~ Trees - ~`- - --
AT ADJACENT ROADW14Y5) ! CLUB `~ _ - - ----
r /;
~~ ~ r
_ ~,•' ~ ,~ - _ , - ~ _ _ - ~. , H Gate
BOAT - - OC
STORAgE SHED ~ - % ' ~ _.
• , r' -
',
'~ - 1 ~ .,
1r
_ -
_ _ r, - ARr/yq
_ -- _- ~ __ ~ ~ o
__.__ - - `; Dense --- _ ~ ~^ ~.`
ote i __ Trees -- ~~ - `i -
- (E) PED/BIKE ACGES5- TRikIL- `~ -- ----- ~~,
• ~v .-,. REPAVE gWD`t~EN TO 1D' ~ ~ -- _
WHERE-REQUIRED
OYSTER -~~ ~ LEf.1GTH: 225' __
PowT -~'~~ . _•- AREA: 3,180 SF _ .___ - -
------eefiK_.. ,- - - (E) SOUTH _ - ~.. _------_
. ~ - _- _ :'~ -__ ~-~_ y --__~~'~- -_- ~`-_- BAY TRAIL ~ - __ - --- --
-- -- ~---~'~--- y
--___--__~~__~~----- - u -.-
PUBLIC ACCESS PLAN
SOUTH ,SAN FRANCISCO FERRY TERMINAL I
NOVEMBER 19, 2008 SCALE: 1" = 100'
. ~~-