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HomeMy WebLinkAbout2008-12-22 e-packetSPECIAL MEET[NG ,,zx s o - ~ CITY COUNCIL '" ~ OF THE J O CITY OF SOUTH SAN FRAANCISCO c'~LIFOR~l~ P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, California 94083 CITY FIALL CONFERENCE ROOM X100 GRAND AVLNLIIJ SOUTH SAN FRANCISCO AND BY r1~ELECONFLRENCE AT 270 LOS RANCHITOS ROAD SAN RAFAEL, CA 91903 MONDAY, DECEMBER 22, 2008 5:30 P.M. NOTICE IS HEREBY GIVEN, pursuant to Section 54956 of the Government Code of the State of California, the City Council of the City of South San Francisco will hold a Special Meeting on Monday, the 22nd day of December, 2008, at 5:30 p.m., in the City Hall Conference Room, 400 Grand Avenue, South Sari Francisco, California and by teleconference pursuant to Section 54953 of the Government Code of the State of California at 270 Los Ranchitos Road San Rafael, CA 94903. Purpose of the meeting: 1. Call to Order. 2. Roll Call. 3. Public Comments -Comments are limited to Items on the Special Meeting Agenda and will be taken from both locations specified in this notice. 4. Consideration of Resolution Approving an Amended and Restated Ground Lease and License by and among the San Mateo County Harbor District, the City of South San Francisco and the Water Emergency Transportation Authority and approving a budget amendment. 5 . Adjournment. .~ DATE: December 22, 2008 TO: The Honorable Mayor and City Council FROM: Barry M. Nagel, City Manager Steven T. Mattas, City Attorney SUBJECT: RESOLUTION APPROVING AMENDED AND RESTATED OYSTER POINT MARINA FERRY TERMIl~tAL LEASE AGREEMENT WITH THE SAN MATED COUNTY HARBOR DISTRICT AND THE BAY AREA WATER EMERGENCY TRANSPORTATION AUTHORITY. RECOMMENDATION: It is recommended that the City Council adopt a resolution approving the Amended and Restated Ground Lease and License Agreement between and among the City, the San Mateo County Ilarbor District ("District"), and the San Francisco Bay Area Water Emergency Transportation Authority ("WETA") for construction and operation of the Oyster Point Ferry Terminal at the Oyster Point Marina. BACKGROUND/DISCUSSION: The City owns the Oyster Point Marina. Pursuant to the Joint Powers Agreement between the City and the San Mateo County Harbor District ("District"), the District is authorized to negotiate and enter into leases with private and public entities for the improvement of the Oyster Point Marina ("Marina"). The former San Francisco Bay Water Transit Authority ("WTA") approached the District to lease a portion of the Marina for operation of a ferry terminal. On December 12, 2007, the City Council adopted a resolution approving the original lease ("Original Lease"} for the construction and operation of the Oyster Point Ferry Terminal with the District and the WTA. On January 1, 2008, the WTA ceased to exist. WETA is successor entity to WTA. Since that time, WETA, the District, and the City have negotiated additional terms, which are summarized below. In summary, if approved, the Amended and Restated Ground Lease and License would: Account for the change of tenant from the WTA to the WETA Increase the WETA's rent from a single lump sum payment of $3.32 million to a payment of $3.66 million, payable directly to the Department of Boating and Waterways to reduce the District's outstanding loan balance. Provide that WETA rent will be paid using State Proposition 1B funds available to it from the State Office of Homeland Security, and that WETA will work closely with the District to expedite payment in rent. To: Honorable Mayor and City Council Date: December 22, 2008 Re: Approve a Resolution Approving Amended Oyster Point Marina Ferry Terminal Lease ^ Require the City to pay to the District a single lump sum payment of $1.34 million to compensate the District for costs directly incurred in connection with the Oyster Point Ferry Terminal project. ^ Withhold WETA's right of entry onto the premises for construction activities until rent has been fully paid. ^ Prohibit WETA from obstructing use of District's (or City's, upon expiration of the JPA) use of guest dock and guest vessels. ^ Give WETA the option to obtain a preliminary title report, survey the property, and obtain a soil investigation report, and obtain a Phase II environmental site assessment study. The Original Lease required WETA to promptly carry out such work. ^ Give City the right to terminate the Lease if, after commencing ferry service from the Terminal, WETA fails to operate such service for a continuous period of two years, unless such failure results from inability to obtain financing for the ferry service or from other defined instances of unavoidable delay. ^ Give WETA a license to continue to provide emergency services at the Marina for the entirety of the Lease term, notwithstanding termination of the Lease for failure to provide ferry service. ^ Recognize certain lien rights of the Department of Boating and Waterways against the District and provide that if the Department succeeds to Districts interest in the Marina, WETA shall recognize the Department as the landlord under the Lease until such time as the JPA expires. FUNDING The Amended and Restated Lease obligates the City to pay to the District a single lump sum payment of $1.34 million to compensate the District for costs directly incurred in connection with the Oyster Point Ferry Terminal project. Funds are available from the 2006 RDA Bond Proceeds for this purpose. The attached resolution includes a budget amendment appropriating the funds. CONCLUSION It is recommended that the City Council adopt a resolution approving the Amended and Restated Oyster Point Marina Ferry Terminal Ground Lease and License with the San Francisco Bay Water Emergency Transportation Authority and the San Mateo County Harbor District. By: Steven T. Mattas City Attorney Attachment: Resolution Exhibit A, Amended and Restated Ground Lease ~° .Nagel City Manager 1180352.1 RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING THE AMENDED AND RESTATED OYSTER POINT MARIl~TA FERRY TERMINAL LEASE AGREEMENT WITH THE SAN MATEO COUNTY HARBOR DISTRICT AND THE SAN FRANCISCO BAY WATER EMERGENCY TRANSPORTATION AUTHORITY AND APPROVING A BUDGET AMENDMENT WHEREAS, the City owns the real property and water area known as Oyster Point Marina ("Marina"); and WHEREAS, in 1997, the San Mateo County Harbor District ("Harbor District") entered into a Joint Powers Agreement with the City to control and operate the Marina; and WHEREAS, the San Francisco Bay Water Transit Authority ("WTA") desires to lease from the Harbor District a portion of the Marina known as the Oyster Point Ferry Terminal ("Ferry Terminal"); and - WHEREAS, 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. 1180366.1 -~- 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 capital improvement cost reimbursement rent payment specified in the lease. * ~ ~ 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 meeting held on the day of _, 2008 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk 1180366.1, - ~- Ezhibit A Ground Lease 1180366.1 - ~- 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 X88-'2008, by and between San Mateo County Harbor District ("Landlord"), having its principal place of business at 400 Oyster Point Blvd.; Suite X88;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 ~tEmer~encv Transportation Authority, ("Tenant"), having its principal place of business at Pier 9, Suite 111, San Francisco, CA 94~-I-;94111 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 Foint Ferry Terminal ("Terminal") (more particularly described in Exhibit "B" attached hereto and incorporated by reference herein) pursuant to the Provisions stated in this Lease. WHEREAS, Landlord grants to Tenant, subject to all of the terms, covenants, and conditions of this Lease, the exclusive right to construct and operate the Terminal (including removal_uf ~~stir~_dc~c,ks y anci_l U and_dredging activities within the leased Premises ~-n~-~-€ iE-9-~ A), 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. 1180371.1 - ~- WHEREAS, Landlord, C~and the San Francisco Bav Area Water Transit Authority (the "Original Tenant") previously executed a Ground Lease and License dated as of December 28 2007 (the "Original Lease"). WHEREAS, Tenant is the successor entity to the Oricinal Tenant pursuant to the terms of Senate Bi11976 (2007-08 Session), 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 ownershin_to" Tenant. WHEREAS Landlord Ci and Tenant desire to amend and restate the Original Lease in its entire ~~T~~ rruEv~~nv~Now, therefor, for and in consideration ^~*'~°'°~~° of the Premises and of the mutual obligations, agreements, and representations and warranties herein contained, the parties do hereby agree as follows: 1. TERMS AND DEFIlVITIONS As used in this Lease, the following words and phrases have the following meanings: Alteration: any addition or change to, or modification of, the Premises or demolition and construction of new Improvements made by Tenant. Approvals: those permissions required by law or regulation prior to, or during, the construction and operation of the proposed Terminal. 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; da~rageD includes death. Damages: a monetary compensation or indemnity that can be recovered by any per~Person who has suffered damageDama 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 eventEvent of ~l~Default. Effective Date: 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 °~*°„~~^~ *°~Extension berm. 1180371.1 - ~- 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, kept for Tenant's Personal Property. Insurance Requirements: all terms of any insurance policy covering or applicable to the p~~isesPremises 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 prer~isesPremises or any alteration or part thereof or any use or condition of the prex~i~Premises or any part thereof. Landlord: San Mateo County Harbor District, constituted pursuant to the Joint Powers Agreement, effective November 11, 1977, recorded on October 15, 1984, as Recorder's Serial No. 84111706, San Mateo County Official Records, and as amended from time to time. "Landlord" shall also mean the City, when it becomes the successor to the interest of San Mateo County Harbor District upon the expiration of said Joint Powers Agreement. Law: any judicial decision, statute, constitution, ordinance, resolution, regulation, rule, administrative order, or other requirement of any municipal, county, state, federal or other government agency or authority having jurisdiction over the parties or the Premises, in effect either at the time of execution of the Lease or at any time during the''°nnLease Term, including without limitation, any regulation or order of aquasi-official entity or body. Lease: this Lease. Legal Requirements: 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 1180371.1 -~- 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 tl~ereef-thereon. License: tkeThe 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 ' °~~e~Lease Term. Project: development, construction, and operation of the Terminal and all related facilities and appurtenances. Provision: any Lease term, agreement, covenant, condition, clause, qualification, restriction, reservation, or other stipulation in the Lease that defines or otherwise controls, establishes or limits the performance required or permitted by either party. Rent: a~lAll charges payable by Tenant to Landlord. Restoration: the reconstruction, rehabilitation, and repairs necessary to return destroyed portions of the Premises and other property to substantially the same physical condition as they were before the ~ Destruction. Tenant's Personal Property: the equipment, signs, furniture, furnishings, merchandise, and moveable property placed in the 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 1180371.1 - ~- 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 Lease. 'Te-pant Landlord and Citv agree that this Lease completely amends and 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. ? :1-2.2. 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 to any of the Premises. However, this Lease confers no rights with regard to the subsurface of the Premises more than fifteen (15) feet below ground level, except to the extent necessary to install pilings or other support for the Improvements, nor does it confer 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 conditions herein set forth and Tenant covenants as a material part of the consideration for this Lease to keep and perform each and all its terms, covenants and conditions. Landlord shall take no action with respect to its reserved subsurface 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 Purpose of Lease and Related Services. The ultimate purpose of the Lease for the benefit of the public is the complete and continuous use of the Facilities. All facilities and services shall be made available to the public without any illegal discrimination as defined by California and/or Federal law. The immediate purpose of this Lease is the development of the Premises for construction, eper~ier~onerations 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. '2.2.2. 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 1180371.1 - ~- 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 Tenant are impaired because 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 be recorded.- if this lease or a memorandum of lease has been recorded Notwithstandin47 that the Commencement Date occurs after execution of this Lease, this Lease shall be in full force and effect from and after execution of this Lease by all parties hereto. ~1-2.3.1 Rent Payment. Tenant agrees that rentRent in the amount of Three Million Six Hundred Sixty Thousand Dollars 03,660.0001("Rent") shall be owed to Landlord in one lump sum, payable ^-~''°'~~'~^{~ Tenant "~a~^~- ;+° ~ ,^"°°"^Y ~-<, +r,° ~;+<. The parties contemplate that the . .~- - ---~_ lGGT~_~_~.....a...4. .~« A ..t1...«;~F. ,»> ~i,v,~n ;,, +~ ~" nr ,,, ",•*°~• ^,• +l,° ~C,,^,.-.-..~.-;-~T~„r~~,• „~7nnQ __.._.~, ~,.~___~__ __----- ___r - _. _ nn^~<"+°~ ~"n~~,+;°c. "n ,,,•^<»~°fl ~Di•_-Iir I:II~IS27 ' "r~~ n^mm°rfv ~i ~+°ri «~riit r +t.° > + ~• -`i~ ~ii,~~ if ~.~~ ______ _ ___>-.-.--- 1. _ ~ a 1 *,,° ~°"~°a Dr°m;a°~ ~„ +~,° ~"~+ ~""i~rRent navment will be made by Tenant using State Proyosition1B 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 directly to the Department of Boating and `lVaterwavs which shall be fully applied by the Department only to reduce Landlord's outstandin,~loan balance. In addition to the Rent navment required herein Citv shall nay to Landlord a single 1_umn sum payment of One Million Three Hundred Forty Thousand Dollars ($1 340.0001("Costs"1 to compensate Landlord for costs directly incurred by Landlord in connection with the Terminal proiect This payment of Costs to Landlord by City shall not be governed by the procedure set forth in the paragraph above and shall be paid by the Citv directly to Landlord. ~~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. T^«~°<'°:,'~ "" Y"'~'°° ~~ 1180371.1 -~- ,,ivoT ~~^~a;+'^~~~ r~^~+ ~+ ~+~ ~^~° ~„a ~'~~~^'~•+° a;~,,,.°*~^-' *^ r°-~^'~°Notwithstandina the foreaoina, Tenant's right of entry +^ +'~° Dr°-N'~°~shall not include anv construction activities until Rent has been raid under the terms of naraaraph 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. -:2.4. Tenant's First Right 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 nat 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 party for lease of the Premises. :2.4.1. 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 ~.nd 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 and conditions of the written lease set forth in Landlord's notice, Landlord shall have a period of six (6) months in which to enter into a written lease with said third party on said terms and conditions: provided; however, that in the event of any change in the terms and conditions from those set forth in Landlord's notice, Landlord shall be required to give Tenant a new written notice of the new terms and conditions and Tenant shall have another sixty (60) day period in which to notify Landlord that Tenant accepts the new terms and conditions. X42.5 . Early Termination / Inability 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 party shall be released from its obligations under this Lease effective upon the date 1180371.1 -1Q- of such notice. For nurooses of clarification only the parties hereto acknowledge that this paragraph 2 5 does not provide an oHen-ended right of termination by any Harty but is exHlicitly limited to the circumstance where Tenant is unable, after expending reasonable efforts, to obtain a building Hermit. In the event that the City fails to issue a building Hermit for the Terminal within one year of the date of this Lease, any Rent Havments made to date will be repaid in full -- by the entity receiving the payment of Rent on behalf of the Tenant and to the entity providing funding for such Rent payment. which funding entity name Tenant will provide to Landlord. x:2.6. End of Lease Term. 22.6.1. 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~e~itienGood Condition except for [a] ordinary weaX and tear occurring after the last necessary 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 wear and tear if the same could have been prevented by good Maintenance practices. Tenant hereby agrees to execute all documents as Landlord may reasonably deem necessary to evidence any Termination of the Lease Term. If Tenant fails to surrender the Premises to Landlord on Expiration or Termination of the Lease Term as required by this Paragraph, Tenant shall indemnify, defend and hold Landlord harmless from all Damages resulting from Tenant's failure to surrender the Premises, including but not limited to and without limitation, claims made by a succeeding tenant resulting from Tenant's failure to surrender the Premises, and Tenant waives all claims against Landlord for any Damage to Tenant resulting from Landlord's retention or disposition of any Improvements, al~e~sAlterations, 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 ali costs and attorney's fees as may be necessary to evict Tenant. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereon, shall not work a merger, and shall, at the option of Landlord, operate as an assignment to it of any or all subleases or subtenancies. '2.6.2 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 T~ Personal Property, at or prior to the Expiration or Termination of the Lease Term. Landlord may remove any of the Tenant's Personal Property that Tenant has not removed from the Premises on Expiration or Termination of the Lease Term and store Tenant's Personal Property in a public warehouse or elsewhere for such a period of time as may be required by applicable Law, after which time Landlord may retain or dispose of all such property in accordance with applicable Law. Tenant waives all claims against Landlord for any Damage to Tenant resulting from Landlord's retention or disposition of any e~Tenant's Personal Property as provided herein. 1180371.1 _~~_ Tenant shall be liable to Landlord fir 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, fi~Fixtures and facilities constructed or placed within the leased Premises by Tenant, which are or have been within the Lease Term attached or fastened to the ground, deck, floor or walls of a structure, such that they cannot be removed without damage to the Premises, shall become the property of Landlord or Landlord's successor iri 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 Ternnation of this Lease, and any acceptance of Rent by Landlord thereafter, shall not constitute a renewal or give Tenant any rights hereunder in the Premises, except with the prior written consent of Landlord, which consent may be withheld for any reason whatsoever. Any holding over by Tenant after the Expiration or Termination of this Lease, with the written consent of Landlord, shall be construed to be a tenancy from month to month, and shall be terminable upon thirty (30) days'- written notice given by either Landlord or Tenant. All the terms, covenants, conditions, and Provisions of this Lease shall apply to any such month-to-month tenancy. Landlord shall respond to request to holdover within a reasonable time. If Tenant holds over after the Expiration or Termination of this Lease without the express written consent of Landlord, Tenant shall become a tenant at sufferance only, and otherwise subject to the terms, covenants, conditions, and p~~d~ien~sProvisions 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-tune, 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. IlVIPOSITIONS 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 to the appropriate supplier for all utilities and services directly furnished to or used by it including, without limitation, gas, water, electricity, sewer, and telephone services; and for all connection charges far such utilities and services. 1180371.1 _~~_ 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 Prern.ises, or (ii) the heating, ventilating, and air conditioning systems. 5. USE, LIMITATIONS ON I:fSE 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 railings c-n specific °°M~~^° -'°••+°~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 °°M~~^° '-°~~+°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 public bicycle/pedestrian trail to and along the Marina and San Francisco Bay shoreline. 5.2. Limitations on Use. Tenant's use of the Premises shall be in accordance with this Paragraph 5.2. 5.2.1. Prohibited Uses. The parties hereto agree that the following acts, occurrences or conduct by Tenant on or from the Premises are strictly prohibited: a) Engaging in, assisting, aiding or abetting in any act that constitutes a violation of any Law. b) 9pemtiensTenant's operations hereunder shall not obstruct vessel or vehicle traffic on Marina waters or land area. including use of Landlord's guest dock b Landlord a~ld west vessels. 5.2.2.- Compliance with Le ag 1 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 Premises or any per-tienPortion thereof, including; without limitation, the Landlord (collectively. "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 ~uvhich 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 Prenuses. Compliance with all Laws shall include compliance 1180371.1 _~~_ 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 Bay Conservation and Development Commission ("BCDC"1. Tenant's compliance with BCDC requirements shall include but not be limited to installation of improvements for public access at Tenant's sole cost as reauired by B(~'DC as shown in Exhibit D attached hereto and incorporated by reference herein. 5.2.3. Waste; :Nuisance. Tenant shall not cause, maintain or permit any unreasonable annoyance or nuisance i_n, 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 gee Good Condition during the Lease Term. 5.2.4 Hazardous Material. Tenant shall not cause or permit any Hazardous Material to be brought upon, kept, or used in or about the Premises except to the extent that such Hazardous Material is necessary or useful to 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, remediaxion, 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 ~'^-~~Invitees, shall use, generate, process, produce, package, treat, store, emit, discharge or dispose (collectively, "Handle") in, on or about the Premises any Hazardous Materials without the prior written consent of Landlord, which. consent shall not be unreasonably withheld so long as Tenant demonstrates to Landlord's reasonable satisfaction that such Hazardous Material is necessary to Tenant's business, will be Handled. in a manner which strictly complies with all laws and will not materially increase the risk of fire or other casualty to the Premises. Notwithstanding the foregoing, Tenant may Handle on the Premises janitorial or office supplies or materials in such limited amounts as are customarily used for general office and janitorial purposes so long as such Handling is at all times in full compliance with all Laws. 5.2.4.2 Tenant Responsibility. Sut>ject 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 age~sA~ents or ~~~~ ~~Jlnvitees, 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 age~A~ents. 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 _~~_ 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 tames, 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 ln, on, under or about the Premises by Tenant, its a~~ or ~„-n~~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 agerrtsA~ents. 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 panning 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 vessels at the Leased Premises. 5.2.5.4 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current form a safe~pianSafety Plan to govern fueling operations and provide a copy of said safety pl~Safety Plan to Landlord. 5.2.5.5 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current forma Fuel Spill Containment Plan and provide a copy of said "^"+°"^""~"'+ ~'~nContainment 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. 1180371.1 _~~_ 5.2.6 Cancellation of Insurance. Tenant shall strictly observe all h~:~e ~~~r~~slnsurance 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, pan, or about Tenants' facilities. b) Keep the noi:>e 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 action 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. 1180371.1 _~~_ 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 elevatic>ns 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 mav. at its sole option, or shall. if required by any applicable governmental a~encv obtain a Phase II Limited Site Characterization Study ("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 whewhom should bear the cost of the clean up, they will meet and confer and attempt to reach agreement. 6.3 Reports in Possession of Landlord. Landlord shall provide legible copies to Tenant of the following: (a) existing title reports and surveys on the Premises; (b) reports regarding elevations and cross sections to be used; (c) governmental reports from any and all agencies; (d) any agreements with State, fedemlFederal, the City or ~coun agencies, and any studies, reports and (e) agreements with other contiguous and non-contiguous land owners; (fj 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, 1180371.1 _~~_ aerials, demographic reports, drainage reports, mazketing 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. WA..ItRANTIES 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 aze 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 efon 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, judicial order or instrument to which Landlord is a party or by which Landlord or any of its assets are bound. 7.4 Legal Proceedings to Ownership. Landlord represents, to the best of Landlord's knowledge and belief, that no lawsuuts or legal proceedings are pending or threatened regarding the ownership, use, or possession o:~ 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 aze 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 aze no past or present investigations, administrative proceedings, threatened or pending, alleging non-compliance with or violation of any "Law or Regulation" relating to the Premises or to any required environmental permits by Landlord nor any third party. As used herein, "Law or Regulation" means and includes the Comprehensive Environmental Response and Liability Act ("CERCLA"~ or the Federal Super Fund Act) as amended by the Super Fund Amendments and Reauthorization Act of 1986 ("SARA") and any other laws, ordinance or regulation relating to Hazardous Materials. Landlord 1180371.1 _~~_ will provide to Tenant all reports anal 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 age~t~a~ employee, contractor, subtenant, licensee or contractor of Tenant shall be the responsibility of the City to mitigate to the extent required by a governmental agency with regulatory jurisdiction over the; Premises, provided that as long as the District remains Landlord it shall be responsible for remediation to the extent that such Hazardous Material or contamination remediation costs are; related to the repair and maintenance of the '°Leachate system constructed pursuant to Section 16, subsection (c) of the Joint Powers Agreement dated July 6, 1977; provided, however, that improvement work beyond the scope of said leas-hateLeachate 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 ~°nLeachate 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 Lease thirty-five percent (35%) terminal design products from Tenant. Notwithstanding Landlord's possession of these design products, Tenant shall deliver to Landlord the design schematic drawings it intends to submit for approval by the City and all other permitting bodies. Landlord acknowledges that the design schematic drawings to be submitted by Tenant for permits will reflect the same design and appearance agreed to by Landlord during the 35% terminal design phase. Landlord shall have the right to approve or request modifications to said drawings consistent with permitting and building code requirements; such approval shall not be unreasonably withheld or delayed. Tenant shall inform Landlord in writing within thirty (30) days after receiving permits or approvals from the City and all other relevant permitting bodies. Tenant hereby agrees to construct the Facility on the 1180371.1 _~~_ 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 Isom Landlord of approval of the final schematic drawings. 8.1.2 Tenant shall commence construction in an expeditious manner following receipt of all required permits by the City and all agencies having jurisdiction over the Premises for the construction of the Facility. 8.2 Improvement Plans. All Improvements and Alterations constructed by Tenant shall meet all requirements of all government bodies or agencies having jurisdiction over such Improvements or Alterations, and Tenant shall not make, or cause or suffer to be made, any Improvements or Alterations to the Premises until Tenant has procured all regulatory approvals required to be obtained. 8.3.1 Facility Plans. When approval of the building plans for the Facilities has been obtained from the City, Tenant shall deliver two (2) sets of said plans to Landlord. 8.3.2 Agreements with Government Entities. Landlord agrees that Tenant may enter into any contract, easement or agreement with the City, San Mateo County, the State of California or any other governmental agency or body or public utility with reference to utility connections, street improvements, easements or drainage facilities that are necessary in order for Tenant to use the Leased Premises in accordance with Paragraph 5.1 of this Lease, but notwithstanding the above, Tenant shall notify Landlord of its iintent 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 paragr-aph 4n-TCPara~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-responsibil~. Landlord assumes no liability or responsibility for any defect in any structure by its approval of plans and specifications. 8.3.5 Notice of Non-Responsibility. Landlord may post upon the leased Premises a notice of non-responsibility. 8.3.6 Notice of Completion. Upon completion of construction of any Improvements or Alterations, Tenant shall timely file or cause to be filed a notice of completion. 1180371.1 _ ~~_ 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 muss; 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 o,r 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"_~'lans._' Tenant shall provide Landlord two (2) complete sets of final approved "as built" plans" ~Nithin 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 a:ll Persons employed in connection with the construction of the Improvements and Alterations anal 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 cell premiums for coverage ciescribed 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 fora, and pay all Premiums required for all insurance mentioned herein at all times during which construction work is in progress. 8.9 Performance Bond. Tenant. shall provide Landlord with evidence of a performance bond obtained by its general contractor for the construction of the Facility in amount recommended by a licensed civil engineer that will be sufficient to demolish the Facility and return the Premises to the condition it was in on the Effective Date. Tenant covenants that it will return the Premises to the condition it was in on the Effective Date in the event it fails to complete construction of the Facilities. 9. ALTERATIONS AND ADDITIONS 9.1 General. If there is no Event of Default at the time, under this Lease, Tenant at its sole cost and expense may make reasonable Alterations to the Premises during the term of this Lease 1180371.1 _~~_ after construction of the Facility without the prior written consent of the Landlord; provided, however, that any such Alterations (a) shall not substantially change the exterior character of the Improvements or the gross area of the Improvements, (b) shall not effect any change in the use of the Premises, (c) are completed in a timely manner, in a good and workmanlike manner and in compliance with all Legal Requirements and Insurance Requirements, and (d) are promptly and fully paid for by Tenant. Within thirty (30) days after completion of any such Alterations, Tenant shall furnish Landlord with as-built .drawings showing such Alterations. Notice shall be given to Landlord prior to the commencement of any alterations to afford Landlord the opportunity to post a notice 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 al'l 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 Expiratior.~ 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 Obli ag bons. 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 m.ay 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 wasp or was not given. Tenant shall repair any Damage occasioned by such removal at Tenant's sole cost and expense. 10. CONDITION OF PREMISES, bL~,INTENANCE 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 1180371.1 _ ~~_ makes no representation or warranty with respect to the condition of the Premises, including; without limitation, the seismologicaal condition thereof, or their fitness or availability for any particular use, and Landlord shall nc-t 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 ~~lso 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 clays standard of custodial Maintenance as called for by Landlord. All work will be done in accordance with Best Management Practices and all applicable laws and regulations. Landlord shall not have any responsibility to perform any Maintenance on the Premises;_ Landlord shall not be obligated to make any repairs, replacement or renewals of any kind, nature or description whatsoever to the Premises nor to any Improvements or Alterations now or hereafter located thereon. In the event that the Tenant, its agent or invitees cause any Damage (excepting ordinary wear and tear) to the Premises, Landlord may repair the same at Tenant's expense and Tenant shall immediately reimburse Landlord therefor. Tenant shall make or cause others to make all repairs, replacerr~ents or renewals, whether interior or exterior or, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen, necessary or appropriate to maintain the Premises in Good Condition. Tenant shall provide and maintain established standards of public health and clea,~liness established by Landlord. In the event Tenant fails to maintain the Premises in Good Condition as required by this Paragraph 10, Landlord may give 7,enant 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 tbirty (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 meanuig of Paragraph 18 and Landlord shall have all the rights, 1180371.1 _ ~~_ powers and remedies provided for v1 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 often 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 Dred ig_ng Obligations. 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 for maintaining channel and fairway depths to Landlord's design depth of eight (8;) feet only. 10.4 Signage Pro ram. 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, a;r°~+~^~~airection 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 tune 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 ^~~~+^~~~°~~^ustomer or staff] that may reasonably result in a threat to persens]Persons or property, Tenant shall immediately contact Landlord by telephone and Tenant Manager or Assistant Site Manager shall report to the Terminal and remain until the emergency has been resolved. If the Landlord cannot be 1180371.1 _~~_ reached, Tenant shall make c;ontinued efforts to reach other staff pePersons 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, 650-952-080$; alternatively, Tenant's manager may contact 91 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 1;he 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 properly occurring in, on or about the Premises, or any part thereof, from any cause whatsoer~er;~ (b) any Event of Default by Tenant in the observance or performance of any of the terms, covenants or conditions of this Lease; (c) the use, occupancy or condition of the Premises or the activities therein by Tenant, its agents, or clients, customers, invitees, guests, members, licensees, and assignees (collectively, "Invitees"}; or (d) any release or discharge, or threatened release or discharge, of any substance, waste or material which now or in 'the future is determined by any state, federal, or local governmental authority to be capable of posing a present or potential risk of injury to health, safety, the environment or property (collectively, "Hazardous Material") caused or allowed by Tenant in, under, on or about the Premises, or into the environment. This indemnity shall be enforceable except to the extent that such indemnity is void or otherwise unenforceable under applicable Law in effect on, or valiidly retroactive to, the date of this Lease. This indemnity shall exclude claims, liability, damage oar loss resulting solely and exclusively from the willful misconduct of Landlord or the Cit!;~ 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. 1180371.1 ~~_ In addition to Tenant's obligation to iindemnify Landlord and City, Tenant specifically acknowledges and agrees that it has <~,n 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 begun 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, lbusiness opportunities and persons in, upon or about said Premises for any cause arising at an;y time, including without limitation all claims arising from the joint or concurrent negligence oil 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 against3 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 teen of this Lease, at Tenant's sole cost and expense, Tenant shall keep or cause to be kept in force, at all times, for the protection of Landlord, City and Tenant and naming Landlord as Additional Insured, Comprehensive General Liability Insurance, including coverage for bodily injury, personal injury and property damage liability arising from the use, occupancy, Maintenance, dlisuse, 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 dollazs ($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 aze now or hereafter included in the Special Form, vandalism and malicious mischief. The amount of the insL~rance 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 1180371.1 _~~_ amount be less than one hundred percent (100%) of the then actual replacement cost (herein called Full Insurable Value). Landlord shall not carry any insurance the effect of which would be to reduce the protection or payment to Tenant under any insurance that this Lease obligates Tenant to carry. If any dispute arises as to whether the amount of insurance complies with the above and said dispute cannot be resolved by agreement, Landlord may, .not more often than every two (2) years, request the carriier of the insurance then in farce 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 Employer's Liability and. Workers' Compensation Insurance. Tenant at its sole cost and expense shall, during the Lease Tenn, obtain, maintain and keep in full force and effect, Workers' Compensation Lnsurance as required by Law and Employer's Liability Insurance with limits or liability as required by Lavv, but in no event less than $1,000,000 per each accident. 12.4 Additional Insurance. In the; event of any significant change in the use of the Premises, Landlord shall have the right, during the Lease Term, to require Tenant at its sole cost and expense to obtain, maintain and keep in full force and effect such other insurance with respect to the Premises in such amounts and against such insurable hazards as would be reasonable under the circumstances. 12.5 Waiver of Subrogation Rights. The parties release each other, and their respective authorized representatives, from any claims for Damage to the Premises or to the fixtures, personal property, improvements or alterations of either District or Tenant in or on the Premises which are caused by or result from :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. A11 the insurance required under this Lease shall: (i) be issued by insurance companies authorized. to do business in the State of California with a current financial rating of at least an A Class XV or better as rated in the most recent edition of Best's Key Rating Guide; (ii) be issued as a primary policy; (iii} contain an endorsement requiring thirty (30) days'- written notice from the insurance company to Landlord before cancellation or material change. Tenant shall name Landlord as an additional insured on any and all liability insurance policies. Each insurance policy required hereunder, or a Certificate of the policy, shall be deposited with Landlord prior to the 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. 1180371.1 _~~_ 12.7 Failure to Procure Insurance. If Tenant fails or refuses to procure or to maintain insurance required by this Lease or f ails or refuses to furnish Landlord with required proof that the insurance has been procured and is in full force and effect and paid for, Landlord shall have the right, but not the obligation, upon five (5) days'- written notice to Tenant, to procure and maintain such insurance. The premiums paid by Landlord shall be chargeable to Tenant and shall bear interest at the legal rate then in effect in the State of California from the date when the premium is paid by Landlord. 12.8 Increase in Amount. Landlord may require Tenant to increase the minimum dollar amounts for insurance required by this Lease, but every such increase shall be reasonable under the circumstances and in no event shall such increases more than double in any ten (10) year period. If there is any dispute regarding any increase, Landlord and Tenant shall submit this issue to an arbitrator and the matter shall 'be arbitrated pursuant to Paragraph 29.4 of this Lease. 12.9 Insurance during Construction. 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 Prenuses 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 10, in which event, Tenant may terminate this Lease, or rebuild the structure(s) in such a way that it would be comparable in use and value (but not necessarily design) to the structure(s) which had existed prior to the casualty. 14. TAKING i4.1 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 volunta~.y sale or transfer of the Premises, or a portion thereof or an 1180371.1 _ ~~_ interest therein, by Landlord to any condemnor, either under threat of condemnation or while legal proceedings for condemnation ~~re 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 shell terminate on the day of transfer of title or possession to the condemning agency, whichever is first. Tenant may then present evidence of the worth of remaining use of leasehold improvements and fixtures. Landlord shall also present evidence of the value of the land. All sums, including damages and interest, awarded shall be deposited promptly with a mutually agreeable escrow agent and shall be distributed in the following order of priority. The foregoing having been stated, Landlord and Tenant agree that Tenant may seek separately from the condemning agency its loss of good will or business opportunity, and said proceeds, if any, shall be kept separate and apart from the other condemnation proceeds being deposited into the mutually agreeable escrow account. First, all real and personal property 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 award, failing which the allocation shall be determined by arbitration in accordance with Paragraph 29.4 hereof. The arbitrator(s) shall take into account the respective interests of the parties including but not limited to the City's fee interest in the Prenuses 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 of priority: First, all real and personal property taxes constituting a lien on the property or the improvements; Second, to Landlord and City, collectively, an amount equal to the fair market value of the real property excluding the Improvements, subject to the terms of this Lease; Third, the balance due under any note secured by a leasehold mortgage to which the fee is not subordinated; Fourth, if the fair market value of the improvements exceeds the amount payable to the leasehold mortgage as provided above, from the balance of the award, if any, such excess amount shall be allocated to Tenant in the proportion that the number of years (including any fraction of a year) of the Term then unexpired bears to fifty-five, and the balance shall be allocated to Landlord and City, collectively; 1180371.1 ~~_ Fifth, the bonus value of this Lease, i.f any, shall be divided among the Landlord, City and Tenant. The share of the Tenant shalll be a portion that the number of years (including any fraction of a year) of the Term then unexpired bears to fifty-five. The balance shall be awarded to City and Landlord, collectively; and Sixth, any balance to Landlord and City, collectively. For the purpose of this paragraph, wlherever there is reference to a portion of a condemnation award being paid to Landlord and Ciity, collectively, the amount payable (the "Proceeds") shall be allocated between Landlord and (:ity as follows: There shall be distributed to Landlord an amount equal to the amount of rent Landlord would have received from the Lease for the; number of years unexpired on the Joint Powers Agreement, or any extension thereof to be paid an an annual basis and not to exceed the condemnation award received collectively by City and Landlord. In the event the parties are unable to agree upon any of the valuations required to distribute a condemnation award under this Article 14, each party will appoint an appraiser and the two appraisers so appointed shall select ~a third appraiser and the three appraisers so selected shall make the determination(s) of value. If the appraisers are unable to agree, the valuation in dispute shall be determined by averaging the three valuations of the appraisers. Each appraiser shall be MAI-qualified and shall have not less than five (5) years' experience in appraising commercial real estate in San Mateo County. 14.4 Partial Taking. (i) In the event of a partial taking leaving the remainder unusable for operation of the Terminal, Tenant naay elect to terminate this Lease as of date of transfer of title or possessions in which event the parties shall negotiate an equitable division of the condemnation award. If the parties are unable to agree upon such allocation it shall be determined by arbitration in accordance with Paragraph 29.4 hereto provided that the award shall first go to pay the balance due under any note secured by a leasehold mortgage to which the fee is not subordinated, and the arbitrator(s) shall take into account 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 fora; and effect, covering the remaining property. Tenant must give notice to Landlord of any of the above elections within forty-five (45) days after the taking occurs. Tenant willl be deemed to have knowledge of the impending acquisition on Tenant's entry into negotiations- with the taking agency's representatives, on receipt of service of complaint and summons, or order for immediate possession, or on receipt of a letter of inquiry from the Landlord advising Tenant of the impending acquisition and requesting notice of Tenant's resulting elections and cc-ntentions. If such notice is mailed but not signed by any 1180371.1 _ ~~_ authorized agent of Tenant within tern (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 L~-NDLORD; NO PARTNERSHIl' 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 deenped or constri:ied, to create a partnership between Landlord and Tenant, to make them joint ventures, or to ma1~:e Landlord in any way responsible for the debts or losses of Tenant. 16. INTEGRATED AGREEMbNT; 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 +~~+ -r°H.,,,+'~ T1TQI.~ILi -Vl G111J LV(.a.JV ~V lav JKV VVV~sVa wb~.aiw, , .~~~~ .-~~-+ - ---------- -/--J - -- - -1 /''~ / (~ r ~M(1H [~Y\1~1•~l1+1AH A[1+flAr[*<) AY 4A [.[l/<~I- Af~~[°M [~ 1/[/.°[1 [lAM[~ /'. [~ m!]<) ~A /~</l+f]+°~ N<) I ~I']11TA1.191!] ~/l[[) [~~/1~~ ~ -cv7bi[./1 K J ~ 1180371.1 _~~ _ ~~ ...,~;a ,,,,a ~,;~a;^Ras approved in ~~riting 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 REMEDIF;S 18.1 Events of Default. If one or more of the following events ("Events of Default") shall occur, Landlord may exercise any oi'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 v2solvent, 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; and/or (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 Ri t to Possessic-n 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, 1180371.1 _ ~~_ 18.2.2 Termination of Tenant's Ri~l~t to Possession. Landlord may terminate Tenant's right to possession of the Premises in the evf;nt of any event of Default as specified in Paragraph 18.1 and should such event of Default continue for sixty (60) days after receipt of written notices by Tenant from Landlord it shall be lawrful for Landlord to terminate this Lease and enter upon and take possession of said Premises. Tlie Landlord may retain or dispose of the Premises in accordance with applicable Law. 18.2.3- Landlord's Right to Cure Tenant's Default. Landlord at any time after the Tenant commits a Default, may cure the Default at Tenant's cost. If Landlord at any time, by reason of Tenant's Default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord. 18.3 Interest on Unpaid Sums. Stuns not paid when due pursuant to - •~ ~:~-paragraph 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 operate s~nv ferry 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 pursuant to this Section 18 5 Tenant shall have a continuing license to use the Premises for the purpose of providing emergency services and operations to and from the Facility during the entirety of the Lease Term For the purposes of this Section 18.5. "Unavoidable Delay" shall include failure to obtain financing for operation of the Terminal. Landlord hereby recognizes and accepts 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 1180371.1 _ ~~_ 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 shall not be deemed a waiver of such violation or subsequent act which would have originally constituted a violation from having all the force and effect of an original violation. No delay or omission in the exercise or any right or remedy of Landlord upon any Default by Tenant shall impair such a right or remedy or be construed as a waiver. No act or conduct of Landlord, including, without limitation, the acceptance of keys to the Premises, shall constitute an acceptance of the surrender of the Premises by Tenant before the Expiration or Termination of this Lease. Only a v~Tritten 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 oiE any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent act by Tenant. Any waiver by Landlord of any Default must be in writing and shall not be a waiver of any other Default. concerning the same or any other Provision of the Lease. 21. REMEDIES CUMULATIVIE 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 Entry for Inspection. 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 part. of Landlord to make any such inspection or do any such work). 22.2 Emergency Entry. Landlord may enter the Premises at any time, subject to government security requirements, without notice, in the event of an emergency. Landlord shall have the right to use any and all means that Landlord may deem proper in such an emergency in order to obtain entry to the Premises. Entry to the premises by any of said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of the Premises, or an eviction of Lea:~e from the Premises or any Portion of them. 22.3 No Liability. Landlord shalll 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 _~~_ 22.4 Non-Disturbance. Landlord. shall use its best efforts to conduct its activities on the Premises as allowed in this paragraph, in a manner which, to the extent reasonably practicable, will cause the least possible inconvenience, annoyance or disturbance to Tenant. 23. PERFORCE ON BEHLALF 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 pa;~ment or perform such act, if appropriate under the circumstances given the nature of Tenant's operations at the Premises, with the same effect as if made or performed by Tenant; pro`~ided; however, that nothing contained in this paragraph shall limit Landlord's obligation to proviide 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 sum:> 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 w~less agreed to and accepted in writing by Landlord and no act by any representative or agent of I„andlord, other than such a written agreement and acceptance by Landlord; shall constitute an acceptance thereof. 25. ESTOPPEL CERTIFICATE BY TENANT Tenant will execute, acknowledge and deliver to Landlord within thirty (30) days after receipt of Landlord's written request 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 Def~.ults 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 CERTIFICATE BY LANDLORD 1180371.1 _ ~~_ Landlord will execute, acknowledge: and deliver to Tenant within thirty (30) days of Tenant's written request, a Certificate certifying: (aj 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 lknowledge 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 requestiing 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 Landlord's behalf and agrees to provide Landlord with a copy of said Certificate. 27. CQNVEYANCE BY LANL)LORD 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 aecn~ing 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 T'O APPLICABLE LAW Rights, powers and remedies provided 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 oi• permitted hereunder, such notice shall be in writing and shall be personally delivered, sent by U.~S. Registered or Certified Mail, return receipt requested, postage prepaid, or sent by a nationally recognized overnight carrier service to the address set forth below or at such other addresses as are specified by written notice delivered in accordance herewith: Landlord: SAN MATF;O COUNTY HARBOR DISTRICT 400 Oyster ]Point Blvd.; Suite 300 South San Francisco, CA 94080 Tenant: SAN FRAhfCISCO BAY AREA WATER TD~'`T~-•~c~EMERGENCY "I`RANSPOI~ZTATION AUTHORITY 1180371.1 _ ~~_ Pier 9, Suite ~~ 11 rr~,v ~;,,,~,~,.^~^dere San Francisco, CA 94111 Any notice personally delivered as liereinabove 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 ~afthereon, whichever is sooner. 29.1 Service of ~eeess r~ 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 party shall be executed by each party. 29.2 Disputes Subiect 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 anal use their best efforts to reach agreement on the matters in dispute. Within five (5) days of the request of any party, the requesting party shall attempt to employ the services of a third Person mutually acceptable to the parties to conduct such mediation within twenty-one (21 }days of his appointment. If the parties are unabble to agree on such third p'~'erson, 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 bE:tween 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 Arbitration Rules 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 arbit,~.tion 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) years'- experience in real property and commercial matters. (c) All proceedings involving the parties shall be reported by a certified shorthand court reporter and written transcripts of the proceedings shall be prepared and made available to the parties. (d) The arbitrator or arbiitrators 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 parry 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 ar 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 Il~TITIALING IN THE SPACE BELOW YOU 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 A..UTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEN~NT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES'-' ARISING OUT OF 7CHE MATTERS INCLUDED IN THE-`ARBITRATION OF DISPUTES PROVISION TO NEIJTRAL ARBITRATION. Initials 1180371.1 _ ~~_ Initials Initials 30. ATTORNEY'S FEES Tenant shall reimburse Landlord, ux-on 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 incuirred 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 fe;es and costs of suit. Litigation Expenses. If either party hereto brings an action or proceeding (including any cross-complaint or counterclaim) a€;ainst the other party by reason of a Default, or otherwise arising out of this Lease, the prevai]'~.ing party in such action or proceeding shall be entitled to recover from the other party its cosi:s and expenses of suit} including; but not limited to, reasonable attorneys' fees, which fees shall be payable whether or not such action is prosecuted to judgment. "Prevailing party" within. the meaning of this paragraph shall include, without limitation, a party who substantially obtains or defeats, as the case 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. Apueals. Attorneys' fees under this section shall include attorneys' fees and all other reasonable costs and expenses incurred in connnection with any appeal. 31. QUIET ENJOYMENT Upon Tenant's tender of the one-time lump-sum payment due hereunder for Rent, Tenant shall have quiet possession of the Premises for the Lease Term. If, at any time, Landlord's title is disputed, or there is a change of ownership of Landlord's estate by any act of the parties or operation of Law, Tenant may deposit in escrow any monies thereafter due until Tenant is furnished proof satisfactory to it as to the party entitled thereto. 32. RECOGNITION OF LEA>E The parties acknowledge that this Lease is presently subiect to certain lien rights of the California Department of Boating and Waterways ("DBW") In the event such lien continues to applXto the Premises after approval of this Lease by DBW and if DBW succeeds to Landlord's interest in the Premises, Tenant. or its authorized successors and assigns if anvl shall, immediately and 1180371.1 ~~_ without further action by DBW. Tenant or anv other nartv_t_automatically become the tenant of and attorn to and recognize DBW as the Landlord under this Lease for the time period through November 10 2026. and DBW shall immediately and without further action by Landlord or Tenant, automatically become the landlord to and recognize Tenant as the tenant under the Lease, without modification or revision. Notwithstanding that the. foregoing provisions of this Section are self-operative. upon request 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 acceptable to Landlord and DBW Tenant hereby constitutes and appoints Landlord or its benefic~iarv as the Tenant's attorney in fact to execute anv 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 execution of the Lease DBW and Tenant hereby recognize the following: (i) that Citv is the successor in interest to Landlord in the event Landlord dissolves or otherwise discontinues by operation of law or otherwise (ii) that DBW may or may not have continuing lien rights when and if City succeeds to Landlord and f iii) that this Article 32 shall continue to apply in the event such lien rights continue. 33. MISCELLANEOUS PROVISIONS ~1-33.1 Time is of the Essence. Time is of the essence with respect to the performance of each Provision of this Lease. 7? 7 C.~nn°nn Arc. nH/1 /~ nn~ctHn• I~ r~•«,n~~•~+ > tA_~nH MrnHn•nnA ~ > /~ r +n «~nt°+• dim c , 7 v ~.> .. Z .- .. • • {}~--t-;~--aka-all--~~ ~,;Ha:.,...~:~_~,a}} `.,.,..~ ~~~ ,t,°--l~~t-~#--~: nn°nnArn H~ nnn•r~rin \t1°n~~nn~~~.L t~1° H rt.°n 1Ht°H~ nHl'~ L141 11`U ~~ D r ~ 1 °rntnr~ tint n~~ t°rmn A~t~;n T ~ n° n~n~~ ~ ~•H~•H t1YlAH tl.° CnH fir Hn•nnA ~n /~r°n t~jnt°r 111- '~'T•rZTl'~~O~rllr~~ V L{4' < ll r' liiiv v+ a.aaly ~+~ y -trn ntn nHA AN~•Rnt•AHn 1Hn~11~1HR Y111t HAt ~1H11tA11 to /'•~ / / /~ // ~ a ri, A~i Ar.-,7'1° t rA~° `°nt;AH /~F~cn n_ 1J,.~. VV. 111 ~/V VV vvv.~v~~ ~. •~•~ --~~~/ 33.2 Only Agreement. This Lease is the entire and only agreement between the Parties, and supersedes anv and all other leases covenants and agreements between the Parties. T s ease shall not be effective until execution and delivery of the Lease by each of Landlord, Tenant, and City and either written approval or execution and delivery of the Lease by DBW. 333.3 Payments 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 by Tenant shall be paid by good cl-eck in the currency of the United States t t~,° A~r;n° At T nH~~ r~ Ar nt n~ H~nn° nHl1 to c~iin~ ~°rnA nn T nH ~~Ar~ mci;r ~rc~~il a.llll~ •r-, 1 V • 11 1 ~ it>y; tt°H HAt•nA to T°Hnr~t . v 1V . va.w..... x:433.4 Status of Parties on Termination of Lease. Except as provided in Paragraph 18, if either pa~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. X533.5 Exhibits:/ Incorporation in Lease. All exhibits referred to in this Lease are attached to this Lease and are incorporated herein by this reference. 333.6 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. 333.7 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. 3,~Q in+rft n,~.~ Co~,o,.nl n~,~~;.-~n+;,,,~.~ ccUn,-t >~~ n~n~~ r,.,onr T n„.al..,-.a r'~r Ta+-.n„t• nr~r~ ~~mn,ti•o_t~'i,n, I V 11 ~f.141 V 1~n1J {iLll ] J , nH~ (1At)~Mn~ 333 3.8 Severability. The un.enforceability, invalidity, or illegality of any Provision of this Lease shall not render the other Provisions of this Lease unenforceable, invalid or illegal, and this Lease shall remain in force and effect as if such unenforceable, invalid or illegal Provision had never been a part of this Lease. 3~-933.9 Binding Effect. Each and every Provision, agreement, tterms, 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. ei~erler~~-b ' ~v~tolnntcv ~~To nr.t~c+ c.»nnvc.n~r~ nl+o r vv.~vl ...1 v Z 3~1-33.10 Third Party Beneficiaries. There are no third party beneficiaries of this Lease. 3~-1-X33.11 Interpretation. This Lease shall conclusively be presumed to have been drafted jointly by both parties hereto. 3~-X33.12 Authori If ei~l~~~ Party has a govenung 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 goven~ing body. 3~-I~33.13 Cations. C'.aptions are included in this Lease for convenience only and do not constitute a part of this Lease. ~-133.14 Section Headings. The section heading contained herein are for convenience in reference and are n.ot 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 -~1- 33 15 Successors and Assigns. Subiect to the terms of Article 17 the terms, covenants and conditions contained in tF~_is I ease shall be__bindin won and inure t~__th~ ber~elit of the heirs, successors, executors, administrator:~ and assigns 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 Parties have executed this Lease on the day and year first above written. SAN MATEO COUNTY HARBOR DISTRICT DATED: BY: ~€~1-14A~SAN FRANCISCO BAY "~'~~AREA `'''WATER EMERGENCY TRANSPORTATION. AUTHORITY DATED: __ BY: Agreed to and approved by: CITY OF SOUTH SAN FRANCISCO DATED: BY: (1 ~.-~c~nr~t +~ 4~i T ic. ~,oro~~~ ~ i7~'1'Ce~ 1180371.1 _ ~,~_ CONSENT TO THE TERMS OF T]HE LEASE IS HEREBY GRANTED: CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS DATED: 1180371.1 --~~ BY: _~~_ EXHIBIT A LEGAL DESCRIPTION AND DEPICTION OF DEMISED PREMISES LEGAL DESCRIPTION_ The description of the Leased Premises for the Oyster Point Ferry Terminal ("Terminal") as illustrated in the "Water Transit Authority South San Francisco Ferry Terminal Partial Site Layout Plan (East Basin)" attached ]herewith and incomorated by reference herein is as follows: An area of land and water surrounding and adiacent to the Terminal whose boundaries running north/south are on either side of and] parallel to the Terminal extending northward from the northern or waterside edge of the existing pedestrian and bicycle oath identified on the Layout Plan as "Existing Bav Trail" for ant~roximately three hundred seventy (3701 feet and whose northern edge runs east/west for approximately one hundred twenty-six (126) feet. and whose southern edge runs east/west for approximately two hundred forty-four 1244) feet at a distance approximately fifty-five (55) feet sc-uth of the Terminal entrance The easternmost edge of the landslide portion of the Leased Premises is approximately forty-five (45) feet east of the eastern north south waterside boundary of the Leased Premises and approximately five (5) feet west of the existing restroom foundation. DEPICTION: SEE ATTACHED 1180371.1 _~~_ EXHIBIT B DEPICTION OF OYSTER POINT FERRY TERMINAL SEE ATTACHED 1180371.1 _ ~~_ -~, ~~~ EXHIBIT B W ' ~a_~ ~yN1:f V~ C N p W Z .W.. h A ~ 4._.._._____?d~ _ e__~ ~ ~~ W R ,~ 6 ~` {f ~ \, ! ^• ~~ ~ ~ _ ~;I,. % ~4 ~ / ~I- Si' Y` ; ~ M .c7 / • / '`f i o r~ ~; ~" ~ ~ ~ o ~I ~ J C --.. i -- :, I i a i~ - } I ~~ E 1~ ~ ~ ~ 1 i `~~ ~.~._! .- ~ a ~j ` ~ r f~111 I i ~,. ti,R ~' ~ E ~~ ~~ ~. , ~ ~~~ ti N A N ~ ~ n ~ m ~~u r - a z ,~ ' ~, o b 'b ~^ . - -- _ ., ~ ~ ~ ----c c ii ~~ ~c I ~ (~ ~_~~ }° -- - 1 ~~~ o- ~ ~ i~ a ~___._.., o- °~~ ~ ~~« - , , - : _-~ Y ~i _ _ ._~ 4 ~ ~ ;i. f? C O --~.-- ' Fi _-_-i' N~ w -g aivF .fix, -.,.~~~~i__.~~, aK ~W~ ~~~ ~ ' -~ ~ ~ W S Q~OF iD ~`~-^ej ' J ~g~ F ~ ~~K ~ 71 '1 '3 ~~F~ yW~ ~`..._ ~.__t rte' 1rg'~Kq ¢JP .~ i ~V~~~{ K _ i) ~s iS~ ~ y e ~ d v ~u ~-" 1 ~ ' /~ \\~ g~7S ~~.. ~ fl 1~1 w i W t ,~Y' r> i . y ~ri v ~i tpi Q3~ - ~ 8 ='op o+Npi - ~'¢?! ~ i t ``~'~.-._ ~~ /~~.. _~. NOS 1000Q.10A ~~ p iT ~` P O O 4 CW~~ p6~mg~ Ry NN N Ng O~ K~ Il~f;j `~~~~ 1.1 ~IJO ~~ ^WV'6' q Q •1 rQ~l raj p <61 `2G t _ . ! .i ' , ~ _ rti .a A d N d 10 $ J Q z g a W {J~ U. ~ n. ~ ~ 5 N ~ T ~~ z~ ~a O vs _ 6 g z ~s ~~~ ~~ o ~~ ~~~ o~~ Q ~a~$ o~ a~~ Z ti ~ ' Q F. ~ t w ~ s w a a $$ ~ # ~ i ~ 4 ~ ;~ I gg ~ 3 ~ !{ 1 ~ ~ ~ ~ ~ ~ ~ ~ r~ ~ 1 ~) ~~ ~ 8 ~ ~ ~ ~ ~ st ~ S ~ ~ 1 ~ ~ ~ ~ ~ 1 ( 1 ~ ~ ~i n p yy ,1.~ O ~ L ! ~ ~ ~"" a l i :{ 1 ; ~ ~~~ ~ ~ ~ I~~II ~ ~W ~ ~ ~ u ~ ~b' ~~ ~~ ~ q~ sy~;~y1 ~f R u ~ ' } p ~o~ ,o ~~ #. 1 ~. ~ a 4~ r y=l Y ~ 1 F t,{ ~ V 1 1 • v 1 1 1 1 1 •' ~. • { . l ~ + ~ 1{• ' 1 o ? u .n ~. iv ~ i ~ z ~a ~ ~ ~ W ~ •~ •i _ ~ _ ~ V ~ Y ~p~ l ~ f , ! ~ ~ ~ 2 ~ ~;' } I ': I -~; ,. a 3 1 a ~ S y 3t ~ ~, • . 1 r ~ ~ ~ ~ t ~ ~s 1 ' 1 CCCC ly lii • • • : , ~ u5 Q _~ yS . m ~ 1 ~ <, ` ~ o ~ ~ ~ ~ ~ ~ a~ r { , I m ~ wq ~ Z`~ 11 1+1 I _ '~ ~ ~ 1_ ~' ~. W yt ~ IFS ~ ~ N _,....- ~ ._ ~~ g < ~ . ~ m u r- r " Q ~ r~- ~ ~ Y ~ ~ ~i i ~~ ~ ~ ~ ~ ~ ~ ~ ~ b ~ z` N~ a 3 e ~ - ,, --- ~~x 1 N Y ~ • E 11x!4 AY@ t3~ ~ ~ ~ ' !'..,\ -'~ r-.~f-~~ ^~ ~ 4~~. •, to ; _ H , i ~ ~ ~ 1 c ~ :~~ ~i # ~ ggr~,~~ ~T~lr.~~l~ _~~- ExHIBIT S w t/~,1 V'q pU q 4 6' u z a a w r.q+ ~'`1 ~ ry iy ~ ~ ti O a~ ~~ 1.~ ~ h1 ~/"1 li, ~ q.~ ~~ ~~~ V • ` h. O .~ ~~ N G $ N a~ ~ ~ W H ~. ~~ W ~-, ' ~ o {ti ~v w ~` ~n o ~v ~~ ~~ ~ ~ w~ ~~ 0 EXHiBrr 6 ~... i;i: ~~: n ~,~ ~ ~. E~ . ~~ T'. . ~~ ~7~, :~ k~ i R' ~~: "H . T'~, T i; ,,kr ~~ ....., .:.~ .:. 9,:-' .. G . y~~~ W • ',~ ~© s. ~~ YI" #~} ., d ~ ~ L:i ~_ __ p ~y u~ -ti i,' i . ~ ~~~.a 'rc -: ~. r; Ih.~ f a ~ ~..{ h Q ~. za o ~ ~~ ~' .°~ . a ~ ~ w ~ `~ w ~~ ~ ~ ~~ ~ ~ ~~ d~ ~~4 ~ N ~ ° ~ ~~ o a ~+ ~~~ U d1 a cu z [--~ ~ w ¢ ~~~~ > ~'~ ~ ~ ~~ H 1~ ~ ~ a~ ~ w w ~~ a ~ ~ ~o z ;. ~, . u ~ ~ ~ ~ ~~ ~~ ~ 4 C /~^' y J EXii1~~T B ," :~_ .. ~~, -_ ", '3 ..;: H ~c K 1 ~,' 4'O 0 ~^ n r~-~ R a ~` . ~.,., ~~ O ~. ~+ ~, ~ a ~ ~~ 2 ° o ~~~- H ~a ¢ , ~~ > .~ ~ T h -~ ~i ~ :~ o W ~ rv c~ ~ ~ ° ~~ z ~, a ~ ~--~ a '~~ > a ~~ ~,z .~ ~ ~ ~~ H ~ ~~~ ~ C ti O w u ~~ H . ~ ~~~ u .~ ~ ~' ~ :~ w~ . ~ . ~~ 0 ~~~~~~~~~~t~~~~~~~~~ EXH161T B .~ ~~ ~: ~~ .~..~ , o: a a~ ~, 0 ~,~ ~~ ~. H A , O W ~-, ~ O v . ~., u T O z e w 4 i Q, r Q 0 N 'J N Ci c:w 0 z t1c~1~B1T B .~ ~~ ~~ ~~ ~..~ -~ ~~ ~~~ ~; ~~ W~ ~~~ H ~ ~ n a a. ~ ° 0 rt O ~ N ~o~ ~ ~ 'r d 2 ~ o ~ ~'-' ~ ;t, .~ ~`' ~ > O #~-+ ~ ~ «.a 4~ ~ rj _ L nC,~ }.{~{ c7 +/ s W O a ~~,~ ~-~ u ~ ~ w~ .~ ~~ 4 r n L EXHIBIT C ~~RVICE DESCRIPTION Revenue service shall overate between 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 oaerational and maintenance issues= 1180371.1 _ ~~_ EXHIBIT D BCDC PUBLIC ACCESS REQUIREMENTS SEE ATTACHED 1180371.1 ~~_ EXHIBIT D ~ ,' I i - ~ ~ ` , ( )PUBLIC ACCESS _ -_ _ ~ I _ _ _' ~• ` ` li ~ I~ (' ~ I ` ,! i URING BOARDING AND- - ~ ; - ~ - = , , rr = _ =' ~~ ~ I i ~ j ' '~ ' ~ DISEMBARKING ONLY ; ' ', ', ,i II i Ii , - ' `~., ~ i;% ~ ~~ - GROSS AREA: 6,650 5F _ _, ~ _ _ _ _ _ ! _ _ _ `--~`' NET AREA: 3,550 SE, '~ ~i ~ ' I r I ~1~~ ~ ~ I l~ ~ ~~ `' -- - -,.I ~ 1 _ i ~ i I j l~ 11~ ! ~'! ~ L I ~ ___ i, '~ ~~ 5 V '~~ i! ( ~ i r ( , - - -' ~ ~ } ---_- ' I I l ~ i ~ I~ II I ~ - i ~ ,~~, ~ ~ ~ ~ l I t ~ - , _ _ I ~ ___ ~~ ~ ~ I i 1 ~' _ -- ~--- - 'lI ~,t ~ ~ ~'~, I ~\ 't ~~ 4 (N) PUBLIC ACCESS DPEN~~ r- _, ~ - -i i - - - J " i` I ~~ j ,' +~ t,' ~ ', ~ ` ' ~ ~ DURING FEF7RY TERMINAL ~ i !f ~ i i' l ' ' vi ~ I I~ ' ~ t.. OPERATING HOURS ' ~ _ _ _ ~ •_ _ _ _ i ~~ `-_ .__-- 1i !~'~ ! j ~ t ~ ' ~~ WIDTH: 15'-0" -~ ~ ~ ,~ 1 r t f'~ ~ ! y '~ ~, ,, ~,~ LENGTH: 155'-0" ± I 1 I, . ~ j~,~/~ ' I 1 ~ ~ ~~ '~ j ~ ~~ ~. AREA: 2,300 SF ~---} ~~- •----1 I' -- ' ! ~ ! ~ 1 ~, ~, PUBLIC ACCESS ~/IE~h-ING= _ _ _ ` - -- - - - - ~~ ' ~ i' ~ •~. ~; TERM' CE OPEN ALL TtMES!,~ ~ _ , ~ ~-~'`} .', ' -, ~, WIDTH:'- ' I ; ~ -__ ---- - -- -_ (E} NORTId~ `. _~IIJC~DES HtN6G~A~F---, i ~ _ - -- - - - - __ ~ •----fIE--6 RADED- f~htD - - -- BA~''T`R-AIIL-- SRTI~~AREA_: 1,400 ~ ?'`;-- - 12 BENCHES '' ~ _ _~RESURI`AC-ED- -- - _ ~^ --- C-- - -- -- - )~~ ~ ~ f -.. ~ - _ =_~G • dAC-~1~ P-OR-TI6FJ- ~ ) 1J ~ ~ ~---.~_- ~ OF (E) BAY TRAIL - L.J ~ ~ r~ - _ _ - - -~ - -- ! ~~ -~ --•_~_. - ~ ~~- - r rv--. - __ ~ -=~ -~----~ „ IGro~s _,~ ~.-, ~ -_ ~ --AU$CfC~Rkl ~ `~ jN BIKE ~~~ (E) RESTRQOMS I , + 1 1 ~~ j ~ - ~ LOCKERS - -- _ _ - - _ ' (IJ) ENHANCED ~ _. _ - -' PED/BIKE ACCESS TRAIL t. ' ~ , -' _ --~-j_--.-_.-:. - -- e $ - ___-- - 'LENGTH: 340' , / -.. ~ `; ~ _ -----_ - _- ---- ------ ate- _ --- - - AREA: 3,450 SF Vim;- ' ~ ~'---~-~ Y ~-i ~., (INCLUDES HIGH VISIBILITY ~ , 1 f 0 --- ~ ! MARKING OF CROSSWALKS ~ ~ ,,~ % - Y 5~R _ '`-- -- - --- AT ADJACENT ROADWAYS} ! ~ `ICyT p~NT ~ --- -- '~•-'--a - - - - , ~ .- .;,~~--...yy - -~ , a- -- J BOAT -~.__ - STORAGE SHED - - ~ ___ `> Dense - - ~ I ate i, Trees __ '._. ' __ ,~~ ,''~- -, - (E) PED/BIKE ACCESS--TRttIL- = ~~. ----- .,, . _ REPAVE gNR'WIDEN TO 10' - ~-~~~~' _ _ wHER~ ~REOUIRED ~'--L.1 oYSTi=R } LEf1GTH: 225' PDINr ~ -- AREA: 3.180 SF - --- -----e9RK .._ " _ _ .-_ _ (E) SOUTH - -- - -___ . -- -~"` _-_ J_~ - -- -_ ~``__ BAY TRAIL -_- _ _ _-_ ----- _ - _% `-" _~---- -- _--'`=-~= - --fir _ -- ____ _ , .. ~.~--- PUBLIC ACCESS PLAN SOUTH ~~AN FRANCISCO FERRY TERMINAL ~ .. NOVEMBER 19, 2008 SCALE: i' = 100' _~~-