Loading...
HomeMy WebLinkAboutReso RPD 22-2001 RESOLUTION NO. 22-2001 (R&PD) SOUTH SAN FRANCISCO RECREATION & PARK DISTRICT CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING AN ASSIGNMENT OF INTERESTS IN THE GROUND LEASE BETWEEN THE CITY, THE SAN MATEO COUNTY HARBOR DISTRICT AND S.M. REALTY RELATED TO PROPERTY AT THE OYSTER POINT MARINA WHEREAS, the City and San Mateo County Harbor District have entered into a Joint Powers Agreement to manage the property at the Oyster Point Marina; and, WHEREAS, the San Mateo County Harbor District approved an assignment of interests under the ground lease from S.M. Realty to Marine Collection, L.L.C.; and, WHEREAS, the consent of the City's Recreation and Park District is required in order to complete the assignment of interests contemplated in the document entitled "Agreement and Release." NOW, THEREFORE, BE IT RESOLVED by the South San Francisco Recreation and Park District as follows: 1. The District approves the assignment of interests contemplated in the "Agreement and Release," attached hereto as Exhibit A related to the property at the Oyster Point Marina. 2. The District further authorizes the City Manager to execute the "Agreement and Release" on behalf of the District. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Recreation and Park District of the City of South San Francisco at a Special meeting held on the 28th day of March, 2001 by the following vote: AYES: NOES' ABSTAIN: ABSENT: Boardmembers Pedro Gonzalez and Karyl Matsumoto, Vice-Chair Eugene R. Mullin and Chairman Joseph A. Femekes None. None. Boardmember John R. Penna ATTEST: ~r~ ]9'). lerk J:\wpdLMnrsw\405\00 lXRESOX2001LPark_District_SMCHarbor_Feb26.DOC FROM...MEYeRS'NAVE' RIBACK, SILVER & WILSON. I (FRI) 3, 23' 01 11'21/8T, ll'20/NO, 4860102612 P 2 AGREEMENT AND RELEASE WHEREAS, the gan Mateo County Harbor Disu'ict (hereinafter "Harbor District") as lessor, and S.M. Realty (hereinafter 'S.M. Realty") as tenant, are parties to a 1957 Lease and Maaagemont Agreement (hor~inat~ the "Lease"), which Lease is approved by the City of South San Francisco and tho South San Francisco Park and Recreation District and which Lease Realty seeks to assign to Marine Collection LLC. Copies of the Lease and Management Agreement, including the General Conditions of the Lease, the Assignment in favor of Summit Marine Corporation (through which it became the tenant), and the Certificate of Amendment of the Articles of Incorporation of Summit Maxine Corporation which changed its name to S.M. Realty, Inc., are attached hereew and iacotporalud herein as Exhibit.~ A through D; and WHEREAS, the Harbor District has contended, pursuant to a March 16, 1999 letter, a copy of which is attached hereto as F_~Jbit 11, that S.M. R~alty has breached the Lease and S.M. Realty has disputed the contentions of the Harbor District both verbally and in writing; and WHEREAS, to resolve their difforeaces, the Harbor District and S.M. Realty eatered into a Tolling Agreement, a copy of which is al'tached ha'em as Exhibit F, executed by S.M. Realty on January 28, 2000, by the Harbor DistriCt on February 2, 2000, and by the City of South San Francisco on March 8, 2000, staying any contmnplatmi legal procedures against onc another without prejudice and wiling the applicable statutes of limitadon to allow thc part/cs to resolve any differences or disputes there may'be among them without resort to formal litigafion;'and WHEREAS, S.M. Realty has at its own expense, used its best effort.~ to expeditiously complete the in-place upgrading of the two 10,000 gallon underground storage tanks, situated on land adjacent to that described in the Lease, together with the lines leading from them to the fueling dock, and therea~er restored fueling senriCes; and 00096/T003/1102887 1 FROM MEYERS, NAVE, RIBACK, SILVER & WILSON (FRI) 3.23' 01 11:21/ST. 11:20/N0. 4860102612 WHEREAS, S.M. Realty has paid $2,089.43'to tho Harbor District to reimburse the Harbor Disu'ict' s claim for Lease revenues lost'while tho fucling service was inoperable, and Harbor District acknowledges receipt of such payment as full compensation for its claim; and WHEREAS, S.M. Realty has paid $3,500.00 to thc Harbor District to reimburs~ Harbor District's claim for attorney's fees incurred resolving th~ Lease dispute and Harbor Di~xict acknowledges receipt of such payment as full compensation for its claim; and WHEREAS, S.M. Realty and its subtenant have agreed with Harbor District to improved security measures for the Lcasc premises, including: (i) that the storage yards will be better patrolled and will bc securely locked at night; (ii) non-operating lights have been repaired or r~placed; and (iii) thc u~ of a private security firm for incrc.ascd patrols will be further considered though is not required; and WHEREAS, S.M. Realty desires to assign thc Lease to Marine Collection LLC and be relieved of all rights, duties and obligations under the Lease atter the date of asslgnment'and Marine Collection LLC is willing to assume the rights duties and obligations imposed by the . Lease arising after the date of such transfer provided that thc Harbor District represents and warrants that S.M. Realty has fully performed its obligations under thc Lease and is not in breach of the Lease as of thc date that this Aglv. ement and the Harbor District's consent to the assignment both become effective, and WHEREAS, on November 1, 2000, at its duly noticed public hearing, the Harbor District Commissioners unanimously acted and consented to thc above described request for assignmcflt subject only to final agreement as to thc form and substance and final execution of this Agreement and Release (Agreement) to finally and conclusively resolve the partly' differences; and 00096/T003/1102887 ? 3 FROM MEYERS, NAVE, RIBACK, SILVER P 4 & WILSON (FRI) 3, 23' 01 11:21/ST, 11:20/NO. 4860102612 $ztions past or present, as set forth more fully below, and to facilitate S.M. Realty's assignment of the Lca~ to Marino Collootion LLC; NOW THERBFORE, for and in oomiderafion ofthe mutual promises and actions set forth heroin, th~ partio$ agr~ as followa: 1. The Harbor District represents and wnrrnnts that S,M. Realty has fully performcd its obligations under the Lease and is not in .breach of the Lease as of the date that this Agreement and the Harbor District's consent to the assignment both become effective 2. The parties, intending to resolve their ..differences, hereby agrcc and do mutually release each other from all rights, claims nad acliolis past or preset, arising from the Le, a~, illcluding the following: Ao The n~lms teen, md to in'~e Harbor DiStrict's March 16, 1999 letter .~..~_._,,.hed !~ as EXhibit E; Any i,~.failure to ~ fuel and boat repair'services at the premises C+ 3. The parties waive the provisions of Civil Code § 1542 with respect to thc mallem covered in this mleasc, which provides: "A general releme does not extend to claims which the creditor does not know-or suspect to exi~ in hi~ favor at the time of executing the Release, which if ]mown by him must have materially nffcctccl his settlement with the deblnr," 0009OT003/1102gg7 FROM MEYERS, NAVE, RIBACK, SILVER & WILSON (FRI) 3, 23' 01 ll:21/ST, ll:20/NO, 4860102612 P 5 4. Thc parties hereto acknowledge that nothing contained within this instrument shall be an acknowledgment of liability or an admission in a~y respect on thc part of an}, parties hereto. 5. The parties signing this document, and those executing it on their behalf, represent and warrant that they have full and complelz authority to enter into this Agreement and that no consent or approval is needed from any other P~rson or entity. Exhibit G attached hereto is the resolution of the Harbor District Board apl~oving this Agreement. The parties, and those si~£rning on behalf of the parties, represent, wammt arid agree that all action necessary to enable them to exectlte and be legally bound by the Agreement has beeil properly taken and completed. 6. In thc event of any action at law or in equ/ty between the parties arising from or in connection with this Agreement, thc prev '.ruling party shall recover reasonable attorneys fees and other costs incurred in that action in addition to any other relief, and such attorneys fees and costs 'shall be included in and as a part of lmy j,_~_aEment in such action. 7. This Agreement contains the entire agreement pextaining to thc subject matter in it and supcrcedes all, if any, prior and contemporaneous agreements representations and tmderstandings of the parties. No suppl~'mcnt, modification or am©ndment of this Agr~ment shall be binding unless executed in writing by all parties he~-W. 8. The parties hereto acknowledge that this Agreement has been negotiated and entered into in California and expressly agree that that this Agreement shall be governed by, interpreted under, and construed and enforced in acc, o~ with the laws of the State of California. 9. This Agreement may b~ v'xccut~ in one'or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. 10. In all other respects, the lease and general conditions referred to herein are reafrh-med by the parties hereto. 00096/T003/1102SS7 4 FROM MEYERS, NAVE, RIBACK, SILVER & WILSON (FRI) 3. 23'01 II'21/ST. 11:20/NO. 4860102612 P 6 IN WITNESS WI-IEREOF, the parties have exeeu:t~ this Agreement on the date set forth beside the signature of each, which Agreememt shall be deemed effective on the date that the last party hereto aff~xcs its sisnatu~, SAN MATEO COUNTY HARBOR DISTRICT #1 John~n Pier Half Moon Bay, California 94019 · S.,aly-C~~r~-,....[~ ~t, Board o'tCO<,. ~ 'ssion~-rs SaM. REALTY 675 North First Street, Suite 900 San Jose, CA 95112 00096/T003/1102887 5 FROM MEYERS, NAVE, RIBACK, SILVER & WILSON (FRI) 3, 23'01 11'22/ST, 11'20/NO, 4860102612 P 7 We hereby consent to, approve.of and agree to be bound by the terms of this Agreement. and those executing this document on our boludf, represent, warrant and agree tlmt all action necessary to ~aabl¢ us to execute and 1~ legally bound by this Agmemcm has been properly taken and completed, Dated: /~///'/ Dated: MARINE COLLECTION LLC 290 Pismo Street San Luis Obispo, California 93401 CITY OF SOUTH SAN FRANCISCO 400 Grand Avenue South San Francisco, California 94080 By SOUTH SAN FRANCISCO PARKS AND RECREATION DEPARTMENT By: City of South San Francisco, its Governing Body By_ 00096/T003/1102887 6 FROM MEYERS, NAVE, RIBACK, SILVER &WILSON (FRI) 3. 23'01 11'22/ST. 11'20/NO. 4860102612 P 8 APPROVED AS TO FORM: AARONSON, DICKERSON, COHN & LANZONE By Marc L. zaffer~r~'~ Attorney for Harbor Dfsfrict 'rg. RR A I,AW LLP D~tcd: MEYERS, NAVE, RIBACIC, SILVER .By St, ven Ti Mattas, Esq., Attorney for City of South San Francisco 00096/T003/1102887