HomeMy WebLinkAboutAgr 2013-07-18 (Town and Blue and Gold Fleet, LP)LAW OFFICES OF STEVEN H. HERMAN
ATTORNEYS AND COUNSELORS AT LAW
August 12, 2013
Attn: Town Manager
Town of Tiburon
Town Hall
1505 Tiburon Boulevard
Tiburon, CA 94920
PIER 35, SECOND FLOOR, WEST GATE
SAN FRANCISCO, CALIFORNIA 94133
TEL 415,982.6800 / FAX 415.982.2701
STEVEN H ERMAN@HERMAN LAW. NET
RECEIVEi.7,
AUG 1 4 2013
TOYM AAWGEFZt3) C-%,,,;
7OWN oF
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,
anielle Finger
Paralegal
cc: Carolyn Horgan
Office of the Town Attorney
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 P ark.
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 Zehnsky
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
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 1 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 Mutuallndelnnities.
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. Ferry 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 S
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 everabiliN. 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 anent. 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 make 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 S
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 35, 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 ") cannot 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 bear 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 Marin,
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:
() _ , a==--_
Carolyn Horgan/president
APPROVED AS TO FORM:
Ann R. Danforth, Town Attorney
LAW OFFICES OF STEVEN H. HERMAN
U1 a
for Ferry
TOWN OF TIBURON
Margaret A. an,
Town of Tiburon
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