Ordinance 2650CITY OF ALAMEDA ORDINANCE NO.
New Series
2650
AUTHORIZING EXECUTION OF AMENDMENT TO LEASE WITH
ALMAR , LTD. AND BALLENA ISLE MARINA
WHEREAS , on the 1st day of January, 1979 , a lease
entitled "Ballena Bay Lease " of certain city-owned property was
entered into by and between the City of Alameda as Lessor and
Marina Operators Incorporated as Lessee; and
WHEREAS , on the 28th day of October , 1982 , pursuant to
Ordinance No. 2105 N. S., the City consented to assignment of said
Ballena Bay Lease to Almar , Ltd. and Ballena Isl Marina; and
WHEREAS , the City of Alameda and Ballena Isle Marina
desire to modify said Lease said terms and conditions attachedhereto as Exhibit "
NOW , THEREFORE , BE IT ORDAINED by the Council of the Clty
of Alameda that:
Section 1 . The form of amendment of lease referred to in
the foregoing recitals I and its terms , covenants and conditions , be
and the same hereby are approved.
Section 2 The Mayor of the City of Alameda be , and he
is hereby authorized to execute, for and on behalf of the City, the
amendment to that certain lease entitled "Ballena Isle Lease" and
assigned to Almar , Ltd. and Ballena Isle Marina on October 28
1982, said amendment to be substantially in the form and containing
the terms and conditions set forth in said form , and the City Clerk
is directed to attest to the same.
Section 3 This ordinance relates to Public Works , the
cost of which is to be borne by special assessment against the
property benefitted thereby. Therefore , this ordinance shall beeffecti ve immediately on the date of its final
Presiding Officer of the ity Council
Attest:
itLC i ty Clerk
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Ci ty of Alameda
Public Works Department
2263 Santa Clara Ave , Room 204
Alameda , CA 94501
AMENDMENT TO LEASE
This Amendment of the Lease , entered into this day of
October , 1993, by and between the CITY OF ALAMEDA , a municipalcorporation (hereinafter "City" and/or "Lessor ) and BALLENA ISLE
MARINA , a limited partnership, and ALMAR , LTD., a Californiacorporation, general partner , whose address is 28441 Highridge
Road, suite 110 , Rolling Hills Estates , CA 90274, (hereinafter
"BIM" and/or "Lessee ), is made with reference to the following:
RECITALS:
WHEREAS , on January 1 , 1979 , and pursuant to City of Alameda
Ordinance No. 1936 N.S. an agreement entitled "Ballena Bay Lease
was entered into by and between the City of Alameda and Marina
Operators , Incorporated.
WHEREAS, on October 28 , 1982, pursuant to City of Alameda
Ordinance No. 2105 N. S., said Ballena Bay Lease was assigned to
Ballena Isle Marina , a limited partnership, and Almar Ltd.
general partner.
WHEREAS , City and BIM desire to modify said Lease on the
terms and conditions set forth herein.
WHEREAS , BIM is the holder of a leasehold estate from theci ty, pursuant to an Amended Lease dated January 1 , 1979 , as
amended nd assigned (the Lease). The leasehold consists of
approximately 27 acres of water cud a like amount of land , almost
all of which, except the north side , is surrounded by water , and
is known as 1150 Ballena Bay APN 74-1025-3.
WHEREAS , pursuant to the terms of said Lease , BIM and its
predecessors have developed the leasehold estate by building and
operating a small recreational craft marina for approximately 500boats and shores ide faciliti s in support of the marina
consisting of , among other things , office buildings restaurants
storage facilities , parking lots , walks , streets and utility
systems , all of substantial value and cost.
Revised 9/29/93 EXHIBIT "A"
WHEREAS , a portion of the lands ide leasehold estate
consisting of approximately 16 acres, remains to be developed.
This acreage during the leasehold term and prior thereto has had
various short term or interim uses or has generally remained in a
natural condition. From time to time BIM has expended
substantial funds for the betterment of the acreage. Due to
adverse economic conditions affecting the development of real
property in the city and the surrounding area, BIM does not
anticipate improving this land until these economic conditions
improve.
WHEREAS , portions of the 16 acres and the adjoining marina
have been serviced for years by a driveway along the western
outer edge of the land. This driveway has been subject to
intermittent erosion and deterioration, due primarily to weather
conditions , its design and the character of its use. Thedri veway was designed for limited use by boaters of the marina
and not as a public thoroughfare. BIM desires the driveway to beimproved so as to better serve the needs of its users ,although
nothing herein is intended to dedicate the driveway or expand itsuse. BIM does not have the resources to improve the driveway,
although it too would like its improvement. Accordingly, the
purpose of this Agreement is to provide a means by which the
dr i veway may be improved.
WHEREAS , Pan Pacific Development Company, under date of
February 16 , 1978 , entered into an Amended Agreement with the San
Francisco Bay Conservation and Development Commission (BCDC).
Pan Pacific was one of BIM' s predecessors under .a lease existing
prior to the date of the above referenced agreement. The Amended
Agreement with BCDC provided for certain development rights and
restrictions on the property which now constitutes BIM' s
leasehold estate. This Agreement is made with reference to the
obligations set forth in such Amended Agreement with BCDC and is
not intended to be an amendment thereof. The improvements
provided for herein are recognized to be of a temporary nature
subject to the provisions of the Amended Agreement.
NOW , THEREFORE , it is mutually agreed by and between and
undersigned parties that Paragraphs 29 through 34 are hereby
added to the Lease to read as follows:
(29) Driveway Improvement BIM will cause the driveway,
shown on the attached Exhibit A, to be improved with a generalall-weather asphalt surface to a width of approximately 24 feet
where presently so designed to the easterly edge of the "Beau
Rivage"parking lot and for the balance of its length
approximating 16 feet wide thereafter. For such purpose City has
developed plans and specifications for such improvement , prepared
a request for bid and thereafter reviewed the bids, selected the
contractor and is prepared to award the contract. Time schedules
for the various phases of the work will be contained in thecitys development proposal. Generally, the plans and
specifications will provide for a suitable base for the asphalt
surface. The entire design is to inhibit or deter deterioration
of the driveway from wash out as a consequence of storm waters
from the San Francisco Bay, under soil erosion, or general wear
and tear other than from normal usage by vehicles. BIM reserves
the right to approve such plans and specifications for the
purpose of maintaining cost and quality control. The bids upon
receipt will be submitted to the City Engineer and thereafter the
City and BIM will jointly select a contractor to perform thework. The City will supervise the construction of the
improvement to ensure compliance with contractual terms. BIM
shall also have the right to inspect the construction for quality
control. BIM absolves the City of Alameda of any and all
liability with regard to the speed bumps installed by the
contractor as part of this project.
(30) Time This Amendment to Lease shall become immediately
effective upon approval by the City. The ci ty has used due
diligence to cause the plans and specifications to be prepared
to establish appropriate times for receipt of bids by contractors
to perform the work , to contract performance and to setinspections for approval. It is the intention of the parties
hereto that the work be accomplished as promptly as reasonablypossible. The job site construction is to commence on or about
October 7 , 1993 , after City approval of Contractor's insurance
and bonds.
(31) Cost and Payment During preparation of the plans and
specif ications , an estimate of the construction cost was made by
the City of Alameda , Public Works Department. The low bid of
$37, J17 was submitted to BIM and determined to be reasonable.
addition to the work completed , the City will be reimbursed
000, as reasonable cost for city engineering and design , staff
time , and inspection of work. The entire proj ected cost of
completion of improvements and city staff cost is $41,917. There
are three items in the bid - fabric membrane interlayer , asphalt
concrete , and road bump - that were bid on a "unit cost"
estimate. The overall project cost will be determined by the
actual quanti ties of these items installed , which may differ from
the engineers estimate on the bid sheets. Any increase/decrease
in project cost due to these items will be borne/returned to BIM
at completion of project. BIM will pay for any/all change
orders.
(32) payment for Contractual Services Payment for the
improvement shall be paid by the City in installments approved
and recommended by the City Engineer. Disbursement of funds will
be in accordance with general City practices for payment of
vendors.
(33) BIM Payment Upon completion of the project , the
total project cost for the improvement , including reasonable cost
for City engineering and design , staff time, and inspection of
the work , in the amount of $41,917 shall be paid in five equal
monthly installments of $8 383.40 to the city. BIM agrees to pay
the city on the 15th day of each month following said filing of
the Notice of Completion until the entire amount is paid in full.
This amount , excluding unit quantity adjustments and change
orders as defined in (31) above, represents all charges and costs
of every kind related to this improvement.
(34) Non-dedication The driveway as so improved shall not
be deemed dedicated as a public street but shall remain part of
the property of BIM within its leasehold. When , and if , the 16undeveloped acres , or any portion thereof , shall be further
developed in such a manner as to require the replacement of the
driveway or result in the impairment of its use , BIM shall have
the right to do so , provided , however , that all such further
improvement shall have been approved by the city and shallprovide for sui table access to the end of BIM' s property to thesouth and provided further , that all such new improvements shall
be wi thin the terms of the Amended Agreement with BCDC , as the
same may then be deemed in effect.
(35) Confirmation of Agreement: Except as expressly
modified herein, all other terms and covenants set forth in said
Lease shall remain the same and shall be in full force andeffect. Upon the full satisfaction of the above referenced debt
of $41 917.00 ( excluding unit quantity adjustments and change
orders) this Amendment to Lease , except for paragraph 34 , shall
become null and void.
IN WI NESS WHEREOF , the parties hereto have caused this
modification of Lease to be executed on the day and year first
above written.
BALLENA ISLE MARINA CITY OF ALAMEDA
A Municipal Corporation
Ti tIe
ALMAR , LTD.RECOMMENDED FOR APPROVAL:
Public Works Director
ATTEST:
City Clerk
I, the undersigned hereby certify that the foregoing Ordinance was
duly and regularly adopted and passed by the Council of the City of
Alameda in regular meeting assembled on the 19th day of,
October , 1993 by the following vote to wit:
NOES:
Councilmembers ,Appezzato , Arnerich , Lucas, Roth
and PJ?esident T'Zithrow ..
None.
AYES:
ABSENT:None.
ABSTENTIONS:None.
IN WITNESS , WHEREOF, I have hereunto set my hand and aff ixed the
official seal of said City this 20th.day of October , 1993.
12 Dia e B. Felsch , City
Ci ty of Alameda
Clerk