HomeMy WebLinkAboutAgr 2019-09-30 (ACV Argo) PARKING LOT OPERATION AGREEMENT
This Parking Lot Operation Agreement ("Agreement") is entered into this071day of
September, 2019, by and between ACV ARGO TIBURON, LP, a California limited partnership
("Owner") and the TOWN OF TIBURON, a California municipal corporation and general law
Town("Town").
WHEREAS, Owner is the owner of those certain parking lots being operated on property
described on Exhibit A attached hereto and incorporated herein by reference as if fully set forth
(collectively"Property"); and
WHEREAS, Owner desires to contract with the Town and the Town desires to continue
to allow parking on the Property on the terms and conditions set forth below.
NOW THEREFORE,the parties hereby agree as follows:
1. Operation. Owner hereby designates the Town as Owner's agent with respect to
the operation of the parking lots on the Property, which operation shall be limited to the specific
duties and responsibilities set forth below. This Agreement shall not be construed as giving rise
to or constituting a partnership,joint venture, or other similar arrangement between Owner and
the Town, nor shall the parties be liable for any financial obligations incurred by the other except
as expressly set forth below.
2. Term and Termination.
A. Term. Except as set forth below,the term of this Agreement shall be for a
period of five (5) years commencing on the date hereof. Notwithstanding the foregoing, either
party may terminate this Agreement upon thirty (30) days prior written notice at any time after
the first annual anniversary date hereof.
B. Termination. Notwithstanding the above, however, this Agreement may
be terminated upon any of the following:
(1) If the Town fails to pay any amounts due to the Owner hereunder
for a period of five (5) days after written notice that the same is past due is delivered to the
Town;
(2) By either party in the event of any default or breach by the other
party of this Agreement which continues for a period of thirty (30) days after delivery of written
notice of such breach (or if such breach cannot be cured within said thirty (30) days, if the party
commences efforts to cure such default or breach within said thirty (30) days and diligently
pursues such cure to completion no later than thirty(30)days thereafter);
(3) In whole or in part by Owner upon thirty (30) days written notice
in the event Owner obtains entitlements to change the use of all or any part of the Property.
OAK#4818-0137-9997 v 1
(4) With respect to all or any portion of the Property, upon thirty (30)
days' written notice by either party in the event of the demolition or destruction of the Property,
any portion thereof and/or improvements located thereon; or
(5) Whenever the parties shall mutually agree in writing.
3. Duties and Authority of Town. The Town's duties and authority pursuant to this
Agreement are limited to those matters set forth below:
A. Operation. At the Town's sole expense, Town shall operate and enforce
all applicable Town parking and traffic regulations applicable to the Property and shall be
entitled to retain any revenue collected in connection with such enforcement ("Enforcement
Revenue");provided, however,that the Town shall indemnify, defend and hold Owner harmless
from any liabilities, losses, claims, costs, demands and expenses (including reasonable attorneys'
fees and costs) arising out of or relating to the enforcement of such regulations.
B. Maintenance. At the Town's sole expense. the Town shall be responsible
for providing periodic sweeping, landscape maintenance, and reasonable equipment repair on the
Property (collectively "Routine Maintenance"). Should the Property require any other
maintenance other than Routine Maintenance, the Owner will be obligated to provide such
maintenance as provided in Section 4.D.
C. Electric Vehicle Charging Stations. At the Town's sole expense, the
Town may install up to four (4) electric vehicle charging stations in locations approved by
Owner, and the Town shall be entitled to retain any fees charged by the Town for the use of such
stations. The Town shall be solely responsible for the maintenance, repair and replacement of
such stations. Upon termination of this Agreement, Owner shall elect to 1) continue to make the
chargers available to the public, 2)transfer ownership of the charges to the Owner and reimburse
the Town for the depreciated value of the equipment based upon a three (3) Year depreciation
schedule, or 3) notify the Town that the charging stations shall be removed from the Property at
the Town's expense.
D. Special Events. Not more than five (5) times per year and upon not less
than ten (10) days written notice to Owner (which notice shall include the parking charges for
such event), the Town may establish charges to be imposed for parking at the Property (or any
portion thereof)for special events lasting not more than twelve(12) hours each.
E. Indemnity of Town. The Town shall release, indemnify, defend and hold
Owner and its partners, employees, officers, agents, successors and assigns harmless from and
against any liabilities, losses, claims, costs, demands, orders, charges, liens, judgments and
expenses (including reasonable attorneys' and expert witness fees and costs) whatsoever, arising
2
TOWN OF TIBURON-ACV ARGO TIBURON,LP
PARKING LOT MANAGEMENT AGREEMENT
OAK#4818-0137-9997 v I
out of or related to the acts or omissions of the Town and/or any breach by Town under the terms
of this Agreement.
F. Indemnity of Owner. The Owner shall release, indemnify, defend and
hold the Town and its employees, officers, agents, successors and assigns harmless from and
against any liabilities, losses, claims, costs, demands, orders, charges, liens, judgments and
expenses (including reasonable attorneys' and expert witness fees and costs) whatsoever, arising
out of or related to the acts or omissions of the Owner and/or any breach by the Owner under the
terms of this Agreement.
4. Owner's Duties. Owner shall:
A. Subject to the Town's rights pursuant to paragraph 3.1) above, determine
the reasonable charges to be imposed for parking at the Property; provided, however, that
Owner, in addition to reserving the right to offer daily or long term parking, shall implement an
hourly parking charge schedule for use of the lots, and that the schedule for the Tiburon
Boulevard lot will provide for the first hour of parking to be at no charge during the term of this
Agreement.
B. Owner shall collect and retain for the account and benefit of Owner all
parking fees generated from users of the Property.
C. If Owner establishes a program for long-term parking (i.e., weekly,
monthly, or such other periods as Owner may determine), Owner shall issue parking passes to
the purchasers thereof ("Parking Pass Program") and provide the Town with a list of the
purchasers (including the license plate numbers of such purchasers' vehicles) and a schedule
showing the duration of such passes.
D. At Owner's sole expense, Owner shall be responsible for any major
repairs and/or maintenance to the Property, other than Routine Maintenance (such as striping and
repaving the parking lots, installing new landscaping, lighting repair or replacement, pay
machine(s) repair or replacement).
5. Compensation. In addition to the Enforcement Revenue, and regardless of
whether Owner establishes Parking Pass Program, the Town shall be entitled to twelve (12)
parking passes for the Town's employees which will permit the holders of those parking passes
to park at the Property without charge between the hours of 7:00 a.m. and 5:00 p.m., Monday
through Friday (holidays not included). The Town shall provide Owner with a list of the
employees and the license plate numbers of their vehicles).
3
TOWN OF TIBURON-ACV ARGO TIBURON,LP
PARKING LOT MANAGEMENT AGREEMENT
OAK#4818-0137-9997 0
6. Miscellaneous.
A. Notice. Any notice required to be given under this Agreement shall be
sufficient if in writing and if personally delivered or sent by pdf file, facsimile transmission,
certified mail or overnight courier service, and addressed as follows:
Town: Town of Tiburon
Attn: Greg Chanis, Town Manager
1505 Tiburon Boulevard
Tiburon CA 94920
Email: gchanis@townoftiburon.org
Owner: ACV Argo Tiburon, LP
465 First Street West, Second Floor
Sonoma, CA 95476
Attn: General Counsel
Email:pmm@acveiitures.com. bvick(a-),acventures.com
B. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the parties hereto; provided, however, that the Town may not assign its rights
under this Agreement without the prior written consent of Owner, which consent may be granted
or withheld in Owner's sole discretion.
C. Entire Agreement. This Agreement contains the entire agreement between
the parties. It may not be changed orally, but only by an agreement in writing signed by the
party against whom any modification, waiver, change or discharge is sought. There are no
representations, agreements, or arrangements, oral or written, between the parties relating to the
subject matter of this Agreement which are not fully expressed herein.
D. Severability. In case any provision of this Agreement shall be held to be
or become invalid or unenforceable in certain circumstances, the validity and enforceability of
the remaining provisions, or of such provision in other circumstances, shall not in any way be
affected or impaired.
E. Waiver. No waiver of any breach of this Agreement shall constitute a
waiver of any other breach, whether of the same or any other covenant, term or condition.
Subsequent performance of any of the terms, covenants or conditions of this Agreement shall not
constitute a waiver of any preceding breach regardless of the other party's knowledge of the
preceding breach at the time of subsequent performance, nor shall any delay or omission of
4
TOWN OF TIBURON-ACV ARGO TIBURON,LP
PARKING LOT MANAGEMENT AGREEMENT
OAK#4818-0137-9997 v 1
either party's exercise of any right arising from any such default or affect or impair the party's
rights as to the same or future default.
G. Counterpart. This Agreement may be executed in counterpart and
delivered in person or sent by pdf file, facsimile transmission, certified mail or overnight courier
service.
[signatures ort following page]
5
TOWN OF TIBURON-ACV ARGO TIBURON,LP
PARKING LOT MANAGEMENT AGREEMENT
OAK#4818-0137-9997 v I
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set
forth above:
® ERe
ACV ARGO TIEURON, LP
A California limited partnership
Ey: ACVA Tiburon,LLC
Its General Partner
Ey.
Na e: 6
Title
MANAGER:
TOWN OF EBUR
13y:
Name:
Title: i
6
TOWN OF TIBURON-AC`/ARGO TIBURON,LP
PARKING LOT MANAGEMENT AGREEMENT
OAK 44818-0137-9997 v
Exhibit A Page 1 of 2
Tiburon Blvd Parking Lot
sx�
25 T
X15 I BURON BLVD
APN 058-171-91
ra
T()WN HALL '
t h
rpf `
a LIBRARY
a■.r{y ; a
K
x
�,.�'s� �u>
Exhibit A Page 2 of 2
Beach Road Parking Lot
fillk Z S w4
4 BEACH ROAD #
APN 058-171-86 �
zj
�s
RIO
e 171 ,
i
ata * s
I BofA
�x
ziiii
1-4
W. —M
a �� � ----- M 131