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HomeMy WebLinkAboutReso - CC - 043-1998RESOLUTION NO. 43-98 RESOLUTION APPROVING LEASE AGREEMENT BETWEEN THE CITY OF BURLINGAME AND THE STATE OF CALIFORNIA STATE LANDS COMMISSION FOR THE PURPOSE OF CONSTRUCTING, ACCESSING, AND MAINTAINING THE BICYCLE/PEDESTRIAN BRIDGE ACROSS THE STATE-OWNED CHANNEL AT BEACH ROAD -- CITY PROJECT NO. 8926 RESOLVED, by the City Council of the City of Burlingame, California: WHEREAS, the City is beginning the reconstruction and improvement of the bicycle/pedestrian access between Beach Road and Bayside Park along Sanchez Lagoon, which will be an important improvement to the community's enjoyment of the Bayfront area; and WHEREAS, the State of California is willing to lease to the City at no cost the right to construct, access, and maintain the bridge across the State-owned channel connecting Sanchez Lagoon to San Francisco Bay; and WHEREAS, the terms of the proposed lease agreement are fair and equitable and in the public interest, NOW, THEREFORE, it is hereby resolved and determined as follows: 1. The Lease Agreement between the City and the State Lands Commission attached hereto as Exhibit A is approved. The City Manager is authorized and directed to execute the Lease Agreement by and on behalf of the City. 3. The City Clerk is requested and authorized to attey$ Ks signatu4ejohe Lease Agreement. MAYOR I, JUDITH A. MALFATTI, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the -5 th day of MAY ,1998, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: GALLIGAN, JANNEY, KNIGHT, O'MAHONY, SPINELLI NOES: COUNCILMEMBERS: NONE CAW P51\FQ.ES\RESO\state1mcLpwd.wpd RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: STATE OF CALIFORNIA California State Lands Commission Attn: Title Unit 100 Howe Avenue, Suite 100 -South Sacramento, CA 95825-8202 STATE OF CALIFORNIA OFFICIAL BUSINESS Document entitled to free recordation pursuant to Government Code Section 27383 A.P.N. 026-363-470 County San Mateo W 25449 LEASE PRC This Lease consists of this summary and the following attached and incorporated parts: Section 1 Basic Provisions Section 2 Special Provisions Amending or Supplementing Section 1 or 4 Section 3 Description of Lease Premises Section 4 General Provisions SECTION 1 BASIC PROVISIONS THE STATE OF CALIFORNIA, hereinafter referred to as Lessor acting by and through the CALIFORNIA STATE LANDS COMMISSION (100 Howe Avenue, Suite 100 -South, Sacramento, California 95825-8202), pursuant to Division 6 of the Public Resources Code and Title 2, Division 3 of the California Code of Regulations, and for consideration specified in this Lease, does hereby Iease, demise and let to: City of Burlingame hereinafter referred to as Lessee: WHOSE MAILING ADDRESS IS: 501 Primrose Road Burlingame, CA 94010 those certain lands described in Section 3 subject to the reservations, terms, covenants and conditions of this Lease. LEASE TYPE: General Lease - Public Agency Use LAND TYPE: Sovereign LOCATION: Bay Front Channel and Sanchez Creek Lagoon, Burlingame, San Mateo County. LAND USE OR PURPOSE: Installation of pedestrian/bike bridge abutment, along with temporary construction easement. TERM: Twenty-five (25) years; beginning May 1, 1998; ending April 30, 2023, unless sooner terminated as provided under this Lease. CONSIDERATION: The public use and benefit; with the State reserving the right at any time to set a monetary rent if the Commission finds such action to be in the State's best interest. Subject to modification by Lessor as specified in Paragraph 2(b) of Section 4 - General Provisions. AUTHORIZED IMPROVEMENTS EXISTING: Pedestrian/bike bridge abutment X TO BE CONSTRUCTED; CONSTRUCTION MAY BEGIN: June 1, 1998 AND BE COMPLETED BY: December 31, 1998 LIABILITY INSURANCE: N/A SURETY BOND OR OTHER SECURITY: N/A SECTION 2 SPECIAL PROVISIONS BEFORE THE EXECUTION OF THIS LEASE, ITS PROVISIONS ARE AMENDED, REVISED OR SUPPLEMENTED AS FOLLOWS: SECTION 3 - LAND DESCRIPTION TO BE ADDED LATER PARCEL 1 - BRIDGE ABUTMENT PARCEL 2 - ACCESS AND MAINTENANCE EASEMENT SECTION 4 GENERAL PROVISIONS 1. GENERAL within sixty (60) days after completing them. Lessee' These provisions are applicable to all leases, permits, rights- discontinuance of such use for a period of ninety (90) day of -way, easements, or licenses or other interests in real shall be conclusively presumed to be an abandonment. property conveyed by the State Lands Commission. 2. CONSIDERATION (a) Categories (1) Rental Lessee shall pay the annual rental as stated in this Lease to Lessor without deduction, delay or offset, on or before the beginning date of this Lease and on or before each anniversary of its beginning date during each year of the Lease term. (2) Non -Monetary Consideration If the consideration to Lessor for this Lease is the public use, benefit, health or safety, Lessor shall have the right to review such consideration at any time and set a monetary rental if the State Lands Commission, at its sole discretion, determines that such action is in the best interest of the State. (b) Modification Lessor may modify the method, amount or rate of consideration effective on each fifth anniversary of the beginning date of this Lease. Should Lessor fail to exercise such right effective on any fifth anniversary it may do so effective on any one (1) of the next four (4) anniversaries following such fifth anniversary, without prejudice to its right to effect such modification on the next or any succeeding fifth anniversary. No such modification shall become effective unless Lessee is given at least thirty (30) days notice prior to the effective date. (c) Penalty and Interest Any installments of rental accreting under this Lease not paid when due shall he subject to a penalty and shall bear interest as specified in Public Resources Code Section 6224 and the Lessor's then existing administrative regulations governing penalty and interest. 3. BOUNDARIES This Lease is not intended to establish the State's boundaries and is made without prejudice to either party regarding any boundary claims which may be asserted presently or in the future. 4. LAND USE (a) General Lessee shall use the Lease Premises only for the purpose or purposes stated in this Lease and only for the operation and maintenance of the improvements expressly authorized in this Lease. Lessee shall commence use of the Lease Premises within ninety (90) days of the beginning date of this Lease or within ninety (90) days of the date set for construction to commence as set forth in this Lease, whichever is later. Lessee shall notify Lessor within ten (10) days after commencing the construction of authorized improvements and (b) Continuous Use Lessee's use of the Lease Premises shall be continuou from commencement of the Lease until its expiration. (c) Repairs and Maintenance Lessee shall, at its own expense, keep and maintain th Lease Premises and all improvements in good order and repai and in safe condition. Lessor shall have no obligation fo such repair and maintenance. (d) Additions, Alterations and Removal (1) Additions - No improvements other than [host expressly authorized in this Lease shall be constructed b, the Lessee on the Lease Premises without the prio written consent of Lessor. (2) Alteration or Removal - Except as provided unde: this Lease, no alteration or removal of improvements of or natural features of the Lease Premises shall b( undertaken without the prior written consent of Lessor. (e) Conservation Lessee shall practice conservation of water, energy, anc other natural resources and shall prevent pollution and harn to the environment. Lessee shall not violate any law of regulation whose purpose is to conserve resources or tc protect the environment. Violation of this section shalt constitute grounds for termination of the Lease. Lessor, by it, executive officer, shall notify Lessee, when in his or het opinion, Lessee has violated the provisions of this section anc Lessee shall respond and discontinue the conduct or remed) the condition within 30 days. (t) Torics Lessee shall not manufacture or generate hazardous wastes on the Lease Premises unless specifically authorized under other terms of this Lease. Lessee shall be fully responsible for any hazardous wastes, substances or materials as defined under federal, state or local law, regulation, or ordinance that are manufacutred, generated, used, placed, disposed, stored, or transported on the Lease Premises during the Lease tetra and shall comply with and be bound by all applicable provisions of such federal, state or local law, regulation or ordinance dealing with such wastes, substances or materials. Lessee shall notify Lessor and the appropriate governmental emergency response agency(ies) immediately in the event of any release or threatened release of any such wastes, substances or materials. (g) Enjoyment Subject to the provisions of paragraph 5 (a) (2) below, nothing in this Lease shall preclude Lessee from excluding persons from the Lease Premises when their presence or activity constitutes a material interference with Lessee's use Page 3 policy. The coverage provided by the insured (Lessee) shall be primary and non-contributing. (c) The insurance coverage specified in this Lease shall be in effect at all times during the Lease term and subsequently until all of the Lease Premises have been either accepted as improved, 1%y Lessor, or restored by Lessee as provided elsewhere in this Lease. 9. SURETY BOND (a) Lessee shall provide a surety bond or other security device acceptable to Lessor, for the specified amount, and naming the State of California as the assured, to guarantee to Lessor the faithful observance and performance by Lessee of all of the terms, covenants and conditions of this Lease. (b) Lessor may require an increase in the amount of the surety bond or other security device to cover any additionally authorized improvements, alterations or purposes and any modification of consideration. (c) The surety bond or other security device shall be maintained in full force and effect at all times during the Lease term and subsequently until all of the Lease Premises have been either accepted as improved, by Lessor, or restored by Lessee as provided elsewhere in this Lease. 10. ASSIGNMENT, ENCUMBRANCING OR SUBLETTING (a) Lessee shall not either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease and shall not sublet the Lease Premises, in whole or in part, or allow any person other than the Lessee's employees, agents, servants and invitees to occupy or use all or any portion of the Lease Premises without the prior written consent of Lessor, which consent shall not be unreasonably withheld. (b) The following shall be deemed to be an assignment or transfer within the meaning of this Lease: (1) If Lessee is a corporation, any dissolution, merger, consolidation or other reorganization of Lessee or sale or other transfer of a percentage of capital stock of Lessee which results in a change of controlling persons, or the sale or other transfer of substantially all the asses of Lessee; (2) If Lessee is a partnership, a transfer of any interest of a general partner, a withdrawal of any general partner from the partnership, or the dissolution of the partnership. (c) If this Lease is for sovereign lands, it shall be appurtenant to adjoining littoral or riparian land and Lessee shall not transfer or assign is ownership interest or use rights in such adjoining lands separately from the leasehold rights granted herein without the prior written consent of Lessor. (d) If Lessee desires to assign, sublet, encumber or otherwise transfer all or any portion of the Lease Premises, Lessee shall do all of the following: (1) Give prior written notice to Lessor; (2) Provide the name and complete business organization and operational structure of the proposed assignee, sublessee, secured third parry or other transferee; and the nature of the use of and interest in the Lease Premises proposed by the assignee, sublessee, secured third party or other transferee. If the proposed assignee, sublessee or secured third party is a general or limited partnership, or a joint venture, provide a copy of the partnership agreement or joint venture agreement, as applicable; (3) Provide the terms and conditions of the proposed assignment, sublease, or encumbrancing or other transfer; (4) Provide audited financial statements for the two most recently completed fiscal years of the proposed assignee, sublessee, secured parry or other transferee; and provide pro forma financial statements showing the projected income, expense and financial condition resulting from use of the Lease Premises; and (5) Provide such additional or supplemental information as Lessor may reasonably request concerning the Proposed assignee, sublessee, secured party or other transferee. Lessor will evaluate proposed assignees, sublessees, secured third parties and other transferees and grant approval or disapproval according to standards of commercial reasonableness considering the following factors within the context of the proposed use: the proposed patty's financial strength and reliability, their business experience and expertise, their personal and business reputation, their managerial and operational skills, their proposed use and projected rental, as well as other relevant factors. (e) Lessor shall have a reasonable period of time from the receipt of all documents and other information required under this provision to grant or deny is approval of the proposed parry• (f) Lessee's mortgage or hypothecation of this Lease, if approved by Lessor, shall be subject to terms and conditions found in a separately drafted standard form (Agreement and Consent to Entcumbrancing of Lease) available from Lessor upon request. (g) Upon the express written assumption of all obligations and duties under this Lease by an assignee approved by Lessor, the Lessee may be released from all liability under this Lease arising after the effective date of assignment and not associated with Lessee's use, possession or occupation of Form 51.15 (Rev. 4196) Page 5 shall be to the satisfaction of Lessor and shall be completed within ninety (90) days after the expiration or sooner termination of this Lease or after compliance with paragraph 12(d), whichever is the lesser. (d) In removing any or all the improvements Lessee shall be required to obtain any permits or outer governmental approvals as may then be required by lawful authority. (e) Lessor may at any time during the Lease term require Lessee to conduct at its own expense and by a contractor approved by Lessor an independent environmental site assessment or inspection for the presence or suspected presence of hazardous wastes, substances or materials as defined under federal, state or local law, regulation or ordinance manufactured, generated, used, placed, disposed, stored or transported on the Lease Premises during the term of the Lease. Lessee shall provide the results of the assessment or inspection to Lessor and the appropriate governmental response agency(ies) and shall further be responsible for removing or taking other appropriate remedial action regarding such wastes, substances or materials in accordance with applicable federal, state or local law regulation or ordinance. 13. QUITCLAIM Lessee shall, within ninety (90) days of the expiration or sooner termination of this Lease, execute and deliver to Lessor in a form provided by Lessor a good and sufficient release of all rights under this Lease. Should Lessee fail or refuse to deliver such a release, a written notice by Lessor reciting such failure or refusal shall, from the date of its recordation, be conclusive evidence against Lessee of the termination of this Lease and all other claimants. iM. HOLDING -OVER Any holding -over by Lessee after the expiration of the Lease term, with or without the express or implied consent of Lessor, shall constitute a tenancy from month to month and not an extension of the Lease term and shall be on the terms, covenants, and conditions of this Lease, except that the annual rental then in effect shall be increased by twenty-five percent (25%). 15. ADDITIONAL PROVISIONS (a) Waiver (1) No term, covenant, or condition of this Lease and no default or breach of any such term, covenant or condition shall be deemed to have been waived, by Lessor's acceptance of a late or nonconforming performance or otherwise, unless such a waiver is expressly acknowledged by Lessor in writing. (2) Any such waiver shall not be deemed to be a waiver of any other term, covenant or condition of any other default or breach of any term, covenant or condition of this Lease. (b) Time Time is of the essence of this Lease and each and all of its terms, covenants or conditions in which performance is a factor. (c) Notice All notices required to be given under this Lease shall be given in writing, sent by U.S. Mail with postage prepaid, to Lessor at the offices of the State Lands Commission and the Lessee at the address specified in this Lease. Lessee shall give Lessor notice of any change in its name or address. (d) Consent Where Lessor's consent is required tinder this Lease its consent for one transaction or event shall not be deemed to be a consent to any subsequent occurrence of the same or any other transaction or event. (e) Changes This Lease may be terminated and its term, covenants and conditions amended, revised or supplemented only by mutual written agreement of the parties. (f) Successors The terms, covenants and conditions of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, successors, and assigns of the respective parties. (g) Joint and Several Obligation If more than one Lessee is a parry to this Lease, the obligations of the Lessees shall be joint and several. (h) Captions The captions of this Lease are not controlling and shall have no effect upon is construction or interpretation. (i) Severability If any term, covenant or condition of this Lease is determined by a court of competent jurisdiction to be invalid, it shall be considered deleted and shall not invalidate any of the remaining terms, covenants and conditions. Form 51.15 (Rev. 4/96) Page 6 STATE OF CALIFORNIA - STATE LANDS COMMISSION LEASE P.R.C. NO. This Lease shall become effective only when approved by and executed on behalf of the State Lands Commission of the State of California and a duly executed copy has been delivered to Lessee. The submission of this Lease by Lessor, its agent or representative for examination by Lessee does not constitute an option or offer to lease the Lease Premises upon the terms and conditions contained herein, or a reservation of the Lease Premises in favor of Lessee. Lessee's submission of an executed copy of this Lease to Lessor shall constitute an offer to Lessor to lease the Lease Premises on the terms and conditions set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date hereafter affixed. LESSEE ` City Manager Y C' A torney ACKNOWLEDGEMENT ATTEST: City C1erk STATE OF CALIFORNIA STATE LANDS COMMISSION By: Title: Date: This Lease was authorized by the California State Lands Commission on (Month Day Year) Form 51.15 (Rev. 4/96)