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Home My WebLink AboutAgr 2013-07-18 (Blue & Gold Fleet)LAW OFFICES OF STEVEN H. HERMAN ATTORNEYS AND COUNSELORS AT LAW PIER 35, SECOND FLOOR, WEST GATE SAN FRANCISCO, CALIFORNIA 94133 TEL 415.982.6800 / FAX 415.982.2701 STEVENHERMAN @ HERMAN LAW. NET August 12, 2013 �nS E uu AUG 14 2013 TOWN ATTORNEY'S OFFICE TOWN OF TIBURON Attn: Town Manager Town of Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 Re: Blue & Gold Fleet, L.P. Agreement Regarding Provision of Public Restroom Facilities Dear Town Manager: Enclosed please find Blue & Gold Fleet, L.P. and its counsel's signatures on the Agreement Regarding Provision of Public Restroom Facilities dated July 18, 2013. Thank you. Sincerely, "Danielle Finger Paralegal cc: rolyn Horgan Office of the Town Attorney AGREEMENT REGARDING PROVISION OF . PUBLIC RESTROOM FACILITIES THIS AGREEMENT made and entered into this 18 day of July 2013, by and between the TOWN OF TIBURON, a municipal corporation ( "Town ") and Blue & Gold Fleet, L.P., a Delaware Limited Partnership ("Ferry"). RECITALS A. Ferry operates a ferry service between the Town of Tiburon and the Angel Island State Park. The Ferry's Tiburon terminal is located at 5 Main Street in downtown Tiburon ( "Ferry Terminal "). B. For over twenty years, the Town, the Ferry and other parties have shared the benefit of certain public restroom facilities located at 23 -25 Main Street in Tiburon, shown on Exhibit A, which is attached hereto and incorporated herein by reference ( "Premises "). The improvements on Premises are aging and in need of significant renovation. C. Beginning in 1996, Premises were subject to a lease ( "1996 Lease ") between Zelinsky Properties ( "Landlord ") and the State of California ( "State "). Premises are located next door to the Ferry Terminal and have served as public restrooms for the Ferry and others in the downtown. D. The 1996 Lease terminated on June 30, 2013. Town has entered into an Agreement with Zelinsky Properties, effective July 1, 2013, to lease and remodel Premises ( "Town Lease "). E. In consideration of the benefits that Ferry would realize from continued access to the restroom facilities on Premises, which will be increased substantially by the proposed renovations, Ferry has agreed to contribute to the rental cost of Premises as set forth herein. AGREEMENT 1. This Agreement shall take effect on the effective date of the Town Lease ( "Effective Date "), Provided that the Town Lease is in conformity with this Agreement and allows Ferry and its customers and passengers full and unfettered access to Premises from 7 a.m. to 9 p.m. seven days a week. 2. The Term of this Agreement shall extend until Ferry ceases to operate in the Town or until Town ceases to maintain Premises as public restrooms, whichever is earlier. Town represents and. warrants that it anticipates maintaining Premises as public restrooms at all times during the term of the Town Lease. Page I of 5 3. The Ferry's Obligations. A. Ferry shall pay $500 (five hundred dollars) per month during the Term of this Agreement to partially off -set Town's costs in leasing and maintaining Premises, which payment shall increase 4 % (four percent) every two years ( "Ferry Contribution "). B. The first payment of the Ferry Contribution shall be due on the first day of the first month following the Effective Date, with subsequent payments due on the first day of each subsequent month during the Term. 4 Town's Obligations. A. During the Term of this Agreement, Town shall use and maintain Premises for public restroom facilities and customary accessory uses only. B. During the Term of this Agreement, Town shall be responsible for all payments due to the Landlord under the Town Lease, including, without limitation, rent, all water and other utility charges, insurance costs and real and personal property tax payments. C. During the Term of this Agreement, except as otherwise provided herein, Town shall, at its sole cost and expense, maintain the Premises and the public restroom facilities located thereon in good condition and repair. 5 Mutual Indemnities. A. Town will indemnify, defend and hold Ferry harmless against any and all claims, damages and expenses (including, without limitation, reasonable attorneys' fees and costs), liabilities and judgments relating to injury to persons, loss of life or damage to property occurring on, in or about Premises arising from the alleged active negligence or willful misconduct of Town or from its failure to perform its duties under this Agreement. B. Feny will indemnify, defend and hold Town harmless against any and all claims, damages and expenses (including, without limitation, reasonable attorneys' fees and costs), liabilities and judgments relating to injury to persons, loss of life or damage to property occurring on, in or about Premises arising from Ferry's alleged active negligence or willful misconduct or from its failure to perform its duties under this Agreement. C. As used in this Section, "Town" and "Ferry" shall include the named party's agents, employees, officials and contractors. Page 2 of 5 6 Miscellaneous. A. Governing Law; Venue. The laws of the State of California shall govern this Agreement. In the event that a dispute arises under this Agreement, the venue for resolving said dispute shall be the County of Marin. B. S everability. If any provision of this Agreement is found to be invalid or unenforceable, the validity and enforceability of the remaining portions shall not be affected unless the effect thereof would materially change the economic burden on either party. C. Successors in Interest; Assi u=ent. This Agreement shall be binding on the assigns and successors in interest to both parties. D. Entire Agreement, Amendment. This Agreement represents the entire Agreement between the parties. This Agreement may only be amended in writing. E. Disclaimer. Nothing contained herein shall be deemed to create any relationship between the parties. It is expressly stipulated that the parties are not partners, joint venturers, or agents of one another. F. No Third Party Beneficiaries. Nothing in this Agreement is intended or shall be deemed to confer any rights or benefits upon any entity or person other than the parties hereto or to snake or render any such other entity or person a third -party beneficiary of this Agreement. G. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all taken together shall constitute one and the same instrument. H. Notices. Any notice, request, demand, consent, approval, or other communication required or permitted under this Agreement must be in writing and shall be deemed to have been given 1) when personally delivered or sent by facsimile with receipt acknowledged, 2) one business day following prepaid deposit with any nationally recognized overnight carrier which routinely issues receipts, or 3) three business days following deposit in any depository regularly maintained by the United States Postal Service, postage prepaid, certified mail, return receipt requested, in any case addressed to the party to whom it is intended at its address: TOWN: TOWN OF TIBURON Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 Attention: Town Manager Telephone: (415) 435 -7383 FAX: (415) 435 -2438 Page 3 of 5 with copy to: Office of the Town Attorney Tiburon Town Hall 1505 Tiburon Blvd. Tiburon, CA 94920 FERRY: BLUE & GOLD FLEET, LP PIER 41 TERMINAL SAN FRANCISCO, CALIFORNIA 94133 Telephone: (415) 705 -8200 FAX: (415) 705 -5429 with copy to: Steven H. Herman LAW OFFICES OF STEVEN H. HERMAN Pier 355 Second Floor, West Gate San Francisco, CA 94133 Telephone: (415) 982 -6800 FAX: (415) 982 -2701 Either party may change its address for purposes of any such communication by giving ten (10) days prior written notice of such change to the other party in the manner set forth herein. I. Mediation 1) Town and_ Ferry agree that, if and to the extent that any claim, counterclaim, dispute, and other matter in question between them arising out of or relating to this Agreement or the breach thereof, including, without limitation, any claim that this Agreement is invalid, rescinded, voidable or void (collectively, "Dispute ") cam-lot be resolved through direct discussions within ten (10) days after notice of the Dispute, such Dispute shall be sent to third -party mediation. All expenses of the mediation shall be borne by the parties equally; however, each party shall beax the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs. 2) In the event the Dispute is not resolved through such third -party assisted mediation, either party may initiate an action in a court of competent jurisdiction within the County of Martin, California seeking an adjudication of the Dispute. Page 4 of 5 IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives to execute this Agreement the day and year above written. BLUE & GOLD FLEET, LP By: Carolyn Horgan resident • 4 APPROVED AS TO FORM: Ann R. Danforth, Town Attorney LAW OFF CES OF STEVEN H. HERMAN Ir By: _ y<< s Steve . erman Att,Qfrleys for Ferry TOWN OF TIBURON By: Margaret A. 0 rran, Town Manager Town of Tiburon Page 5 of 5