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Home My WebLink AboutAgr 2013-06-30 (Town and McDonogh - Angel Island Ferry)THIS AGREEMENT ( "Agreement "} is made by and between the TOWN OF TIBURON, a municipal corporation ( "Town "); Margaret McDonogh as Trustee of The First Amended and Restated Trust Agreement of the Milton S and Mary Jane McDonogh Trust, dated June 30, 2003, and Margaret McDonogh as Trustee of Mary Jane McDonogh Bypass Trust (collectively "Trusts "); and Angel Island- Tiburon Ferry, Inc., a California Corporation (`'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 21 Main Street in downtown Tiburon ( "Ferry Terminal' "). B. Trusts own 21 Main Street in downtown Tiburon, which includes the Ferry Terminal, as well as other commercial and residential units. C. For over twenty years, the Town, the Ferry and other parties have had access to, and shared the costs associated with maintaining certain public restroom facilities located at 23 -25 Main Street in Tiburon ("Premises "), shown on Exhibit A, which is attached hereto and incorporated herein by reference. The improvements on the Premises are aging and in need of significant renovation. D. Beginning in 1996, the Premises were subject to a lease ( "1996 Lease ") between Zelinsky Properties ( "Landlord ") and the State of California ( "State "), which included the right to access the Premises by an adjacent hallway shown as Parcel A on Exhibit A. The Premises are located next door to the Ferry Terminal and have served as public restrooms for the Ferry and others in the downtown. E. The 1996 Lease terminated on June 30, 2013. The Town has entered into an Agreement to lease and remodel the Premises ( "Town Lease "). F. Town alleges that the Ferry Terminal is a "transportation terminal" as defined in the California Building Code. Ferry disputes this classification and does not waive its right to challenge this classification. However, in consideration of the benefits that the Ferry would realize from continued access to the Premises, Ferry has agreed to contribute to the cost of the Premises as set forth herein. AGREEMENT 1. The Recitals set forth above are hereby incorporated herein as part of this Agreement. 2. The term of this Agreement ("Term ") shall extend until the Ferry ceases to operate in the Page 1 of 4 Town or until Town ceases to maintain Premises as public restrooms, whichever is earlier, unless earlier terminated pursuant to Section 6(E) herein. 3. The Ferry's Obligations. A. Commencing on the effective date of the Town Lease ("Effective Date "), Ferry shall pay $400 (four hundred dollars) per month during the Tenn to partially off -set Town's costs in leasing the 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. Within six months of the Effective Date, Town shall initiate improvements to the Premises substantially similar to the improvements shown on the plans titled "Tiburon Guest Facilities," prepared by Bull Stockwell. Allen, dated 12/13/2012, and on file in the Town of Tiburon Community Development Department. Said improvements shall comply with all applicable federal, state, and local laws, ordinances, rules, and regulations, including, but not limited to, local building codes, the requirements of the Americans with Disabilities Act, and the requirements of Title 24 of the California Code of Regulations. Should Town fail to complete said improvements within one year of the Effective Date, Town shall refund all payments made by Ferry under the Agreement and this Agreement shall be of no further force and effect. B. During the term of this Agreement, Town shall operate the Premises solely for public restroom facilities and customary accessory uses. C. 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. D. During the term of this Agreement, Town shall be responsible for keeping Premises in a clean and working condition and open from at least 8AM to 9PM, seven days a week. E. Town hereby agrees that during the term of this Agreement, to the fullest extent permitted by law, the bathroom fixtures in Premises shall be considered as fixtures for the non - exclusive use of, and benefitting, the entirety of the 21 Main Street property and any current or future structures, uses, or improvements located at 21 Main Street in Tiburon. Ferry acknowledges that the application of this section may be limited by the right of other entities to use Premises for the benefit of their properties. Page 2 of 4 F. So long as Ferry is current on its payments under this Agreement, and that Ferry's volume of riders is equal to or less than its current volume, Town shall forgo any code enforcement or other action against Ferry or Trusts on the grounds that 21 Main Street is a "transportation terminal" requiring additional bathroom facilities. 5. Mutual Indemnities. A. Town shall indemnify, defend and hold Ferry and Trusts harmless against any and all claims, damages and expenses including, without limitation, attorneys fees, liabilities and judgments relating to injury to persons, loss of life or damage to property arising from the active negligence or willful misconduct of Town, or any user of the Premises not utilizing the services of, or otherwise associated with, Ferry, or from Town's failure to perfonn its duties under this Agreement. B. Ferry and Trusts shall independently indemnify, defend and hold Town harmless against any and all claims, damages and expenses, including, without limitation, attorneys fees, liabilities and judgments relating to injury to persons, loss of life or damage to property arising from Ferry's and /or Trusts' active negligence or willful misconduct or from its failure to perform their duties under this Agreement. C. As used in this Section, "Town," "Trusts," and "Ferry" shall include the named party's agents, employees, officials and contractors. 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. Severability. 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• Assignment. 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. TIZis Agreement may only be amended in writing. E. Termination. Ferry and Trusts may elect to terminate this Agreement if 1) Ferry and /or Trusts build and complete bathroom facilities on the 21 Main Street Property of a size and type that satisfy all requirements for the provision of such facilities; 2) it is adjudicated by a court of law that the bathroom fixtures in the Premises do not legally satisfy restroom requirements of the Ferry Terminal; or 3) the concessionaire's agreement between Ferry and the State ("State Parks Agreement ") is terminated or not renewed. Page 3 of 4 terminatt4ornot renewed. Notwithstanding the foregoing, in the event that thestate Parks Agreement -ister-mmattd;.ornot renewed, bat .Ferry continues .to operate aferry service :from -the Ferry Terming, the parties shall meet; and negotiate in good W*v amend thin Agreement ...to modil, the Ferry -Contribution to xtfiedt any increase or decrease in Var� volume, of riders pro%dod thatif no, agreement 9 be reached Ferry artie'swithin 120.4aysof-Ferr 6lection.to fs:, - , , , terminate,thentheAgreemerat shall bedeemedlerminated. Inthe eventof such teimination,.Tovvnreserves�7fh'O.T'�* ' to On it own property IN WITNESS WHEREOF the pardes hereto have- caused their d*yAuthorized.representatives, to execute this Agrement1he day: and year above written. THE TRUSTS ---- I As Trust:64 Miltofr APPROVED AS TOTORM- Ann R. DanforthrTown, Attorney afimmffll�w °� Br,-M &karet ,A. Curran, Town - Manager Town:.of Tiburon it Ainended and Restated Trust Agreement of the dated June 3 - 0, 3 20 , and - 0 as Trustee of-Mary Jane IT 20 3 8 Riley Hurd' 1.1; 1 Attorney for the Ferry • TOWN CLERK TOWN OF TIBURON Page 4 of 4 tenninated or not renewed. Notwithstanding the foregoing, in the event that the State Parks Agreement is terminated or not renewed, but Ferry continues to operate a ferry service from the Ferry Terminal, the parties shall meet and negotiate in good faith to amend this Agreement to modify the Ferry Contribution to reflect any increase or decrease in Ferry's volume of riders provided that if no agreement shall be reached between the parties within 120 days of Ferry's election to terminate, then the Agreement shall be deemed terminated. In the event of such termination, Town reserves the right to enforce legal requirements for restroom facilities unless Ferry has met such requirements on its own property. IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives to execute this Agreement the day and year above written. ■otm��4k�il By: Margaret L McDonogh, President Angel Island - Tiburon Ferry, Inc. THE TRUSTS TOWN OF TIBURON ..,c .� By: Md baret A. Curran, Town Manager Town of Tiburon Margaret I. McDonogh as Trustee of The First Amended and Restated Trust Agreement of the Milton S and Mary Jane McDonogh Trust, dated June 30, 2003, and as Trustee of Mary Jane McDonogh Bypass Trust APPROVED AS TO FORM: Ann R. Danforth; Town Attorney Riley Hurd Attorney for the Ferry Page 4 of 4