HomeMy WebLinkAboutReso RPD 39-1998 RESOLUTION NO. RPD 39-98
SOUTH SAN FRANCISCO RECREATION & PARK DISTRICT
CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING A JOINDER AND SECOND
AMENDMENT TO THE GROUND LEASE BETWEEN THE CITY,
THE SAN MATEO COUNTY HARBOR DISTRICT, AND RAISER
RESOURCES LLC, 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 District desires to approve a Joinder and Second Amendment to the Ground
Lease between the San Mateo County Harbor District and Raiser Resources;
NOW, THEREFORE, BE IT RESOLVED by the South San Francisco Recreation and Park
District as follows:
1. The District approves the Second Amendment to the Ground Lease and the Joinder, both
of which are attached hereto as Exhibit "A" related to the Raiser Resources development at the Oyster
Point Marina.
District.
The District further authorizes the City Manager to execute the Joinder on behalf of the
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 ro§u la r meeting held on
the 22nd day of ^pr51 , 1998 by the following vote:
AYES:
Boardmembers James L. Datzman, Joseph A. Fernekes, Karyl
Matsumoto, John R. Penna and Chairman Eugene R. Mullin
NOES: None
ABSTAIN: None
ABSENT: None
C :~MODEMLRAISER.PRK
ATTEST:
EXHIBIT A
RESOLUTION NO. RPD 39-98
SECOND AMENDMENT TO GROUNDLEASE
THIS SECOND AMENDMENT TO GROUND LEASE made and
entered in to this _L~_ day of April, 1998, by and between SAN MATEO COUNTY
HARBOR DISTRICT ("Landlord") and RAISER RESOURCES, LLC, a California
limited liability company ("Tenant"), bears the following recitals:
A. On or about January 30, 1997, the parties entered into a Ground
Lease coveting premises in the City of South San Francisco for the purposes of
consn-ucting a hotel as described therein. The Ground Lease was amended by First
Amendment to Ground Lease dated November 18, 199.7. The Ground Lease, as
amended, is referenced to herein as the "Lease."
B. The parties now desire to amend the Lease further as hereinafter
provided.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The second Recital is hereby amended in its entirety to read as folloWs:
"Tenant desires to lease from Landlord a portion of the
aforedescribed land consisting of that certain parcel of real
property outlined on the map attached here to as Exhibit
A and identified as Parcel __ on that certain Parcel Map
dated March , 1998, filed on , 1998, in
Book __ of Parcel Maps, at Pages __ and , San
Mateo County Official Records, or to be filed, plus a
nonexclusive easement for ingress and egress for vehicular
and pedestrian traffic on, over and across thos~e certain
streets known as "Marina Blvd." and "Gull Drive" to and
from the Premises and to and from Oyster Point 'Blvd. (the
"Premises"), for the purpose of constructing a hotel
containing a minimum of 250 guest rooms and ballroom in
addition to a conference center with a minimum of 2,000
sq. ft. and a maximum of 10,000 sq. ft. (which may either
be in the hotel itself or be housed in a building adjoining
the hotel) and operating a hotel pursuant to the Provisions
corp21s3/3 1/98 1
stated in this Lease, and Landlord is willing to lease same
to Tenant. Facility, including hotel logo sign, not to
exceed a total of 126 feet in height."
2. The following definition is added to Section 1'
"Landlord: San Mateo County Harbor District 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, as
amended from time to time. "Landlord" shall also mean
the successor to the interest of San Mateo County Harbor
District or the oxvner of the property upon. .the expiration
of said Joint Powers Agreement." ~
3. The second sentence in Section 2.1 is herel~y amended in its
entirety
to
read as follows: ~
follows:
"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
air space above the roof of the Facility other than air space rigt-tts
for a hotel logo sign which may be placed upon the roof of the
Facility, provided that the total height of the Facility, including
the sign, shall not exceed 126 feet."
Section 2.2 of the Lease is hereby amended in its entirety to read as
corp.ls.~/o 1/98
Lease Term. The term of the Lease ("Lease Term") shall
commence on the earlier of (a) the fn'st day of the month
following the month in which the City of South San Francisco has
issued the last of any necessary discretionary land use approvals
penrfitting consU-ucfion of all Improvements to be consta-ucted by
Tenant on the Premises or (b) October 1, 1998, and expire at
midni~t on the same day fifty-five (55) years subsequent, subject
to any options to extend. Promptly following commencement of
the Lease Texan, Landlord, Tenant and the City shall execute an
amendment confirming the commencement and expiration dates
of the Lease Tmxn which amendment shall be recorded."
2
o
¢orp21s3/31/98
A new Section 2.2.1 is added to the Lease reading as follows:
"2.2.1 Option to Extend Lease Term. Provided Tenant is not
then in default under any of the terms and conditions of this
Lease, to the extent permitted by law,Tenant shall have the option
to extend the Lease Term for two (2) additional consecutive
periods of ten (10) years each upon all of the terms and
provisions contained in the Lease, as amended to date, including
the rent. Said options shall be exercised by Tenant by written
notice to Landlord, given at least one hundred eighty (180) days
prior to expiration of the original or previously extended Lease
Term, but not before the twentieth (20th) anniversary of the
commencement of the Lease Term."
A new Section 2.3.1 is added to the Lease r. eading as follows:
"2.3.1 Tenant's Ri_oht 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 '~witten lease with a third party for the Premises,
give Tenant written notice of all of the terms and conditions of
said offer or ,~witten lease and Tenant shall have sixty (60) days
fi.om 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 and conditions of the
xvritten 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
tenThS and conditions and Tenant shaH have another sixty (60)-day
period in which to notify Landlord that Tenant accepts the new
terms and conditions."
3
follows:
Section 3.1 of the Lease is hereby amended in its entirety to read as
Minimum Rent. Commencing January 1, 1998, Tenant shall
pay Landlord Minimum Rent of one thousand dollars ($1,000.00)
per month for every month. Commencing upon the expiration of
one year from commencement of the Lease Term, Tenant shall
pay Landlord a monthly rental equal to three thousand tIu'ee
hundred thirty-four dollars ($3,334.00) per month. Commencing
on the earlier of (a) the first day of the month following the
issuance of a Certificate of Occupancy for the Facility or (b)
February 1, 2000, xvhich date shall be. extended if Tenant
experiences Unavoidable Delays ("Full ~ent Commencement
Date"), Tenant shall pay Landlord Minimum Rent of six thousand
six hundred sixty-six and sixty-seven dollars ($6,667.00) per
month. Tenant shall apply for the Certificat~ of Occupancy for
the Facility as soon as it is practicable to do so. Minimum Rent
shall be paid in advance on or before the first day of each
calender month."
8. The fn'st para=m'aph, third line, of Section 3.2 of the Lease is hereby
amended to change "five percent (5%)" to "three percenttof"°//o;, x"
9. Subparaffaph k. of Section 3.2.1 of the Lease is hereby amended in its
entirety to read as follows:
Franchise fees or similar charges paid to a franchisor or hotel
management company for the use of its name, reservation system
and other services not to exceed the usual and customary charges
to other hotel franchisees for comparable services and facilities
of this size and type in the Bay Area."
10. New subparagraphs 1. throuo~h p., inclusive; are hereby added to Section
3.2.1 of the Lease reading as follows:
Service charges, finance charges, handling fees and other credit
card charges charged, borne and paid by Tenant and not
reimbursed by guests and customers for credit card seiMces by
banks, credit companies and credit card service companies.
corp.ls.~/.~ 1/98 4
11.
follows:
12.
sentence:
13.
Any funds derived from a state-supported lottery system.
Fees received by Tenant for allowing installation and operation
of automatic teller machines.
Telephone conunissions.
Sales of public transportation or off-site entertainment and
sporting event admission tickets."
Section 6.1 of the Lease is hereby amended in its entirety to read as
.Use. Tenant shall use the Premises for~..the construction and
operation of a hotel containing a minimunq of two hundred fifty
(250) guest rooms and ballroom in addition to. a conference center
which shall be a minimum of two thousand-(2}000) sq. ft., not to
exceed a maximum often thousand (10,000) sq. ft."
Section 6.2.6 of the Lease is hereby amended to add the following
"Without limiting the generality of the foregoing, in the event of
a foreclosure against the leasehold by a leasehold mortgagee
referred to in Section 19.1, the leasehold mortgagee shall be
entitled to cease operating the Facility for a period of up to one
hundred eighty (180) days; provided, however, that payment of
the Minimum Rent shall continue."
Section 8.5 of the Lease is hereby amended to add the following:
"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
attorneys' 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
corp21s3/3 1/98 5
14.
follows:
agencies or administrative proceedings) and any hazardous
material or contamination problem concerning the Leachate
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."
Section 9.1.1 of the Lease is hereby amended in its entirety to read as
15.
sentences:
"9.1.1 Tenant shall file a complete application for a building
permit within two hundred seventy (270) d.ays of the approval of
schematic drawings."
Section 9.2 of the Lease is hereby ame~nded to add the following
16.
sentence:
"Notwithstanding anything contained in this Lease to the
contrary, and in addition thereto, Tenant shall not be responsible
for the costs, if any, which may be required in order to construct
Marina Blvd. to City standards.
"In addition, the District agrees to use its best efforts to cause the
City to undertake and complete the widening of Oyster Point
Boulevard to a four (4)-lane road, with a center median and
landscaping, as described in the "East of 101 Plan," at no cost to
Tenant, on or before the issuance of a Certificate of Occupancy
for the Facility."
Section 9.9 of the Lease is hereby amended to add the following
"Landlord agrees to consider waiving the. Bond based upon a
revie~v of Tenant's financial condition and structure of the
financing and construction of the Facility prior to Tenant
beginning construction."
corp21s3/31/98
17.
follows:
18.
follows:
"19.1
19.
"19.3
Section 12.2.1 of the Lease is hereby added, reading in its entirety as
"12.2.1 Indemnification of Tenant. Landlord agrees to
indemnify Tenant against and save harmless fi'om and defend
Tenant against, all demands, claims, attorneys' fees, causes of
action or judgments for injury to person, loss of life, or damage
to property occurring on said Premises arising fi'om Landlord's
negligence or ~villful or intentional misconduct."
Section 19.1 of the Lease is hereby amended in its entirety to read as
Subordination. This Lease shall, v~i'thout further act of
Tenant, at the option of the Landlord, be s~bject and subordinate
to the lien of any mortgage or deed of trust ,or other encumbrance
which may affect the Premises as of January 30, 1997. This
Lease shall not be subject and subordinate to any other lien or
encumbrance placed on the Premises by Landlord after January
30, 1997, without the prior written consent of Tenant, which
consent may be conditioned upon the lien holder agreeing that, in
the event of default of Landlord and enforcement of the lien,
Tenant's possession of the Premises and this Lease, including any
options to extend the term, shall not be disturbed so long as
Tenant is not in default and continues to perform all of the terms
and conditions of the Lease to be performed by Tenant and
attorns to any new record owner of the Premises (i.e. a "non-
disturbance and attornment agreement")."
Section 19.3 of the Lease is amended in its entirety to read as follows:
Financing Contingency. Tenant's obligatio~n under this Lease
is subject to its obtaining satisfactory construction and permanent
financing for the construction of the Improvements. This Lease
shall terminate if this contingency is not satisfied or waived by
Tenant on or before the date six (6) months folloxving the date of
the City's issuance of the last of any necessary discretionary land
use approvals pern'fitting consta'uction of all Improvements to be
constructed by Tenant on the Premises."
corp21s3/31/98 7
20.
follows:
Section 35 of the Lease is hereby amended in its entirety to read as
TENANT'S RIGHT OF FIRST REFUSAL
"In addition to Tenant's other rights as set forth elsewhere in this Lease,
during the term of tiffs 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 sell or otherwise transfer the Premises, receives an offer
fi'om a third party to purchase or otherwise acquire the Premises or
negotiates a written contract with a third party to sell or otherwise
transfer the Premises, Landlord shall, before accepting any such offer or
entering into any x,,Titten contract with a third p..a-Fy for the Premises,
give Tenant written notice of all of the terms and conditions of said offer
or v, Titten cbntract and Tenant shall have sixty (~.0) days from the date
of Landlord's notice to give Landlord written notice that Tenant elects
to purchase or otherwise acquire the Premises uPbn the terms and
conditions set forth in Landlord's notice. If Tenant does not elect to
accept the terms and conditions of purchase set forth in Landlord's
notice, Landlord shall have a period of six (6) months in which to sell or
otherwise transfer the Premises to said third party on said terms and
conditions; provided, however, that in the event of any change in the
terms and conditions fi.om those set forth in Landlord's notice, Landlord
shall be required to give Tenant a new v,xitten notice of the new terms
and conditions and Tenant shall have another sixty (60)-day period in
which to notify Landlord that Tenant accepts the new terms and
conditions."
21. A new Section 39 is hereby added to the Lease reading as follows:
"39. MEMORANDUM OF LEASE
"Concurrently with execution of this Second Amendment, the parties
shall execute and ac'knowledge a Memorandum of Lease identifying the
Lease, Fh'st Amendment and Second Amendment 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."
corp_lso/.~ 1/98 8
22. The parties hereto hereby ratify, confmn and readopt all of the terms and
conditions of the Lease, as amended by the First Amendment and the Second
Amendment.
IN WITNESS WHEREOF, the parties have executed this Second
Amendment effective on the day and year first above written.
"LANDLORD"
SAN MATEO COUNTY HARBOR
DISTRICT
DATED: April /J ., 1998.
DATED: April __, 1998.
By f-'~ ~
Leo~Padreddii, ~ct,.'r~ President
By ~~~ ~~~
~ Peter Grenel[, General M~ager
"TENANT"
RAISER RESOURCES, LLC
corp21s3/31/98 9
JOINDER
The undersigned hereby join in executing the foregoing Second
Amendment to Ground Lease for the follo~ving limited purposes:
· 1. To confirm that they have approved the terms and conditions and
execution of the Lease, First Amendment to Lease and Second Amendment to Lease
by Landlord therein named.
2. To confirm that, upon the expiration or sooner termination of that
certain Joint Powers Agreement bet~veen the City and Landlord, effective November
11, 1997, as amended, the City shall succeed to the interest of Landlord under the
Lease and shall become the Landlord thereunder, subject to all of the terms and
conditions thereof. ~"
"CITY" .~
CITY OF SOUTH SAN FRANCISCO
DATED: , 1998. By
SOUTH SAN FRANCISCO
RECREATION AND PARKS
DISTRICT
DATED: , 1998. By
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