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HomeMy WebLinkAboutPC Meeting 06-19-14 (Reso 2746-2014) - FlightCar 323 S. Canal DA & CUP RESOLUTION NO. 2746-2014 PLANNING COMMISSION, CITY OF SOUTH SAN FRANCISCO STATE OF CALIFORNIA A RESOLUTION RECOMMENDING APPROVAL OF A CONDITIONAL USE PERMIT AND DEVELOPMENT AGREEMENT TO ALLOW AN AUTOMOBILE RENTAL BUSINESS AND PARKING FACILITY AT 323 SOUTH CANAL STREET IN THE MIXED INDUSTRIAL (MI) ZONING DISTRICT WHEREAS, FlightCar, Inc. (“Applicant”) has submitted an application for a peer-to-peer vehicle sharing business that combines vehicle rental and vehicle parking uses on two legal parcels with the physical address of 323 South Canal Street (“Project”); and, WHEREAS, Applicant seeks approval of a Conditional Use Permit and Development Agreement; and, WHEREAS, approval of the Applicant’s proposal is considered a “project” for purposes of the California Environmental Quality Act, Pub. Resources Code § 21000, et seq. (“CEQA”); and, WHEREAS, the Planning Commission has reviewed and carefully considered the Project and related Project documents, and because the Project involves only a minor change in land use with no additional construction, the Planning Commission recommends that the City Council determine that the Project is categorically exempt from environmental review under the provisions of CEQA, pursuant to CEQA Guidelines Section 15301 – Class 1: Minor Alteration to Existing Facilities as an objective and accurate determination that reflects the independent judgment and analysis of the City in the discussion of the Project’s environmental impacts; and, WHEREAS, on June 19, 2014 the Planning Commission for the City of South San Francisco held a lawfully noticed public hearing to solicit public comment and consider the proposed entitlements, take public testimony, and make a recommendation to the City Council on the project. NOW, THEREFORE, BE IT RESOLVED that based on the entirety of the record before it, which includes without limitation, the California Environmental Quality Act, Public Resources Code §21000, et seq. (“CEQA”) and the CEQA Guidelines, 14 California Code of Regulations §15000, et seq.; the South San Francisco General Plan and General Plan EIR; the South San Francisco Municipal Code; the Project applications; Applicant’s plans and supporting documents, as prepared by Group 4 Architecture, dated April 24, 2014; all site plans, and all reports, minutes, and public testimony submitted as part of the Planning Commission’s duly noticed June 19, 2014 meeting; and any other evidence (within the meaning of Public Resources Code §21080(e) and §21082.2), the Planning Commission of the City of South San Francisco hereby finds as follows: A. General Findings 1. The foregoing recitals are true and correct. 2. The Exhibits attached to this Resolution, including the Draft Conditions of Approval (Exhibit A), the Development Agreement (attached as Exhibit B), and the FlightCar Plans and supporting documents (attached as Exhibit C) are each incorporated by reference and made a part of this Resolution, as if set forth fully herein. 3. The documents and other material constituting the record for these proceedings are located at the Planning Division for the City of South San Francisco, 315 Maple Avenue, South San Francisco, CA 94080, and in the custody of Chief Planner, Susy Kalkin. 4. The Planning Commission, exercising its independent judgment and analysis, has recommended that the City Council determine that the Project is categorically exempt from environmental review pursuant to CEQA Guidelines Section 15301 – Class 1: Minor Alteration to Existing Facilities. B. Conditional Use Permit 1. The proposed peer-to-peer vehicle sharing use (vehicle rental business and private parking) is allowed within the Mixed Industrial (MI) Zoning District based on the Chief Planner’s authority to assign a land use or activity to a classification that is substantially similar in character in cases when the specific land use or activity is not defined. The proposed business described in the application is not specifically defined in the Zoning Ordinance or listed as an allowable or conditional use in the Mixed Industrial Zoning District. Consistent with SSFMC Section 20.112.002, however, the Chief Planner has determined that the proposed use is substantially similar in character to automobile/vehicle rental and parking (public or private), which are uses that are allowed in the MI zoning district, with approval of a Conditional Use Permit. 2. The proposed use is consistent with the Mixed Industrial General Plan land use designation. This designation allows for a wide range of uses including manufacturing, industrial processing, general service, warehousing, storage and distribution, and service commercial uses. The site is located within the Lindenville planning sub-area and is consistent with guiding policy 3.2-G-3, which states a policy goal to “Enhance the appearance of the area by undertaking streetscape and other improvements” since the proposal includes minor landscaping and signage improvements to the front of the building. The project is also consistent with the guiding and implementing polices of the Lindenville planning sub-area by re-developing and improving an existing site. 3. The proposed use will not be adverse to the public health, safety, or general welfare of the community or detrimental to surrounding properties or improvements given that Applicant would utilize the current site with no building expansion or construction and the proposed use would not be disruptive to the surrounding area. With approval of a Conditional Use Permit, the proposal is consistent with the Zoning Ordinance and General Plan and would provide a commercial service to the City. In addition, Staff has incorporated specific Conditions of Approval for the proposed use that would minimize adverse safety or land use impacts on the surrounding area. 4. The proposed use complies with design and development standards applicable to the Mixed Industrial Zoning District because the proposed use would not alter the existing building and would make minor improvements to the exterior appearance of the building to comply with landscaping requirements. Since this proposed use would function as a vehicle rental and parking facility, the Engineering Division and Fire Marshal have reviewed and approved the proposed parking configuration, which meets applicable standards. 5. The design, location, size, and operating characteristics of the proposed use would be compatible with the existing and reasonably foreseeable future land uses in the vicinity because the proposed use would reuse an existing office/warehouse building and parking lot, the building has an adequate parking design, and vehicles would not be stored within the public right-of-way or be visible from the street. The proposed use would not alter the existing building in a way as to preclude future compatible uses. 6. The site is physically suitable for the type, density, and intensity of use being proposed, including access, utilities, and the absence of physical constraints, in that the existing access to the site would remain the same, the existing building and rear parking area would adequately provide the required parking needed to support the peer-to-peer vehicle sharing business, and the site has historically supported similar uses. Given the location of the subject property in the Mixed Industrial Zoning District, adjacent to a transportation company, a commercial laundromat, and abutting manufacturing uses, the proposed use is an appropriate land use and will be compatible with the surrounding area. 7. In accordance with the California Environmental Quality Act, the Planning Commission has determined that the proposed project is Categorically Exempt pursuant to the provisions of CEQA Section 15301 – Class 1: Minor Alteration to Existing Facilities. The project involves a change in land use with no additional construction. Public Works has reviewed the project and has determined that there would be a minimal impact on traffic given the previous fleet vehicle uses that operated at this site (contractor, limo and shuttle service) and that the proposed use would have varying traffic with seasonal traffic peaks that do not generally correspond to traditional peak time traffic based upon the applicant’s other site operations. C. Development Agreement 1. The Applicant and City have negotiated a Development Agreement pursuant to Government Code section 65864 et seq. The Development Agreement, attached hereto as Exhibit B, sets for the duration, property, project criteria, and other required information identified in Government Code section 65865.2. Based on the findings in support of the Project, the Planning Commission finds that the Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the South San Francisco General Plan and any applicable zoning regulations. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for the land use district in which the real property is located. The subject site is suitable for the type and intensity of the land use being proposed. The General Plan specifically supports both proposed uses and the suitability of the site for redevelopment was analyzed thoroughly. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use practice. 4. The Development Agreement will not be detrimental to the health, safety and general welfare. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values. NOW, THEREFORE, BE IT FURTHER RESOLVED that subject to the Conditions of Approval, attached as Exhibit A to this resolution, the Planning Commission of the City of South San Francisco hereby makes the findings contained in this Resolution, and recommends that the City Council adopt a resolution approving the Conditional Use Permit for the Project. BE IT FURTHER RESOLVED that the Planning Commission recommends that the City Council adopt an ordinance approving a Development Agreement between the City of South San Francisco and Applicant (FlightCar, Inc.). BE IT FURTHER RESOLVED that the approvals herein are conditioned upon the approval and execution of the Development Agreement for the proposed Project. BE IT FURTHER RESOLVED that this Resolution shall become effective immediately upon its passage and adoption. * * * * * * * I hereby certify that the foregoing resolution was adopted by the Planning Commission of the City of South San Francisco at the regular meeting held on the 19th day of June, 2014 by the following vote: AYES: Chairperson Martin, Vice Chairperson Wong, Commissioner Khalfin, Commissioner Ruiz and Commissioner Zemke NOES: None ABSTENTIONS: None ABSENT: Commissioner Giusti and Commissioner Ochsenhirt Attest: /s/Susy Kalkin Susy Kalkin Secretary to the Planning Commission Exhibit A Draft Conditions of Approval DRAFT CONDITIONS OF APPROVAL P14-0020: UP14-0001, DA14-0001 323 S. CANAL STREET (As recommended by City Staff on June 19, 2014) A) Planning Division requirements shall be as follows: 1. The applicant shall comply with the Planning Divisions standard Conditions and Limitations for Commercial, Industrial, Mixed-Use and Multi-Family Residential Projects. 2. The proposed wall sign and monument sign shown on the project plans dated April 24, 2014, shall comply with the applicable zoning code requirements. Prior to installation of any exterior business signs, the applicant shall secure a Type A sign permit from the City as required per SSFMC Chapter 20.360, and a building permit for the sign installation. 3. The project shall be constructed and operated in a manner in substantial conformity with the plans submitted to the City, dated April 24, 2014. Further, the business shall be operated substantially as outlined in the project description (narrative) provided by the applicant as part of this application and dated February 19, 2014, with no more than a total of 107 parking spaces on-site to be used by applicant, which includes both employee parking and customer parking. Should business operations deviate from the project description (narrative) provided to the City on February 19, 2014, the applicant shall notify the Chief Planner of the proposed changes prior to implementing such changes. If the proposed changes cause the business operations to significantly deviate from the project description, the applicant shall apply for and obtain a Use Permit Modification prior to implementing such changes. 4. The parking lot shall be striped for 107 parking spaces and shall be maintained with a 20-foot drive aisle around the parking lot, in the configuration, as shown on the project site plan, dated April 24, 2014, including, but not limited to triple stacking in the center of the parking lot. 5. There shall be no parking on the former railroad spur (APN 014-092-220) per SSFMC 20.330.010(E), which prohibits parking on unpaved surfaces. Should the applicant wish to utilize this parcel for parking, the applicant shall notify the Chief Planner of the proposed changes and provide plans for the proposed improvements including but not limited to, grading, drainage, landscaping, paving and parking configuration showing how it would impact and incorporate with the existing parking layout as shown on the April 24, 2014 approved plan set. The Chief Planner shall review the proposed changes to the parking and determine if the changes represent a substantial deviation to the original application and if the applicant shall apply for a Use Permit Modification prior to implementing such changes. Such improvements shall also require necessary grading and/or building permits with review from Water Quality Control staff to determine compliance with the C.3 storm water regulations and from the Fire Marshal to confirm the parking configuration and drive aisle width for engine access. 6. The razor wire at the top of the existing side and rear property line fencing shall be removed prior to issuance of a business license to comply with SSFMC 20.300.005(C)(1), which prohibits the use of barbed and razor wire on fencing. 7. All employee vehicles, vehicles awaiting pick up by applicant’s customers, or vehicles left for long-term parking associated with applicant’s operation shall be parked in the rear parking lot or within the warehouse; there shall be no parking on the public street or within the public right-of-way. 8. All checking-in and checking-out of vehicles shall be conducted on the subject property, either within the building or in the rear parking lot, but shall not be conducted in the front of the building or within the public right-of-way. 9. No maintenance, repair, or washing of rental and/or parked (stored) vehicles is allowed on-site other than minor repairs and cleaning which is defined as only limited to the following: wiping down cars with a standard glass cleaner, inside and out, patching flat tires, adding air to tires, adding coolant, and the other minor repairs described in the project application materials, dated February 8, 2014. Any maintenance, repairs, and/or cleaning beyond those specific tasks identified in this condition (and by the applicant in the project description dated February 8, 2014 will require a modification to this Use Permit and compliance with other regulations applicable at the time of Use Permit modification submission. 10. Any modification to the approved plans or operation shall be subject to SSFMC Section 20.450.012 (“Modification”), whereby the Chief Planner may approve minor changes. All exterior design modifications, including any and all utilities, shall be presented to the Chief Planner for a determination. If the Chief Planner determines that a proposed modification is not a minor change, a modification to the Use Permit shall be required. 11. All new equipment (either roof or ground-mounted) shall be screened from view through the use of integral architectural elements, such as enclosures or roof screens, and landscape screening. Equipment enclosures and/or roof screens shall be painted to match the building. 12. The application shall be subject to a six-month and twelve-month review by the Planning Commission from the date operation commences at the project site. Planning Division contact: Tony Rozzi, Associate Planner (650) 877-8535 B) Fire Department requirements shall be as follows: 1. Modify the fire sprinkler system per NFPA 13/SSFFD requirements under separate fire plan check and permit. 2. There shall be no refueling or servicing of vehicles, beyond minor maintenance specifically defined as vacuuming, wiping cars down inside and out with a standard glass clearer, patching flat tires, adding air to tires, and adding coolant (as identified in the project description); there shall be no major repairs or servicing done on-site without prior approval from the Fire Marshal and the Chief Planner, which may require that the applicant apply for and obtain a Use Permit Modification prior to conducting repairs beyond those defined in this condition and in the applicant’s project description. 3. All buildings shall provide premise identification in accordance with SSF Municipal Code Section 15.24.100. 4. Provide fire extinguishers throughout the building. 5. Provide Knox key box for each building with access keys to entry doors, electrical/mechanical rooms, elevators, and others to be determined. Fire Prevention contact: Luis DaSilva, Fire Marshal (650) 829-6645 C) Engineering Division requirements shall be as follows: 1. The building permit application plans shall conform to the standards of the Engineering Division’s “Building Permit Typical Plan Check Submittals” requirements, copies of which are available from the Engineering Division. 2. The owner shall, at his/her expense, repair any broken sidewalk, curb and gutter fronting the property. 3. Prior to issuance of a business license, the applicant shall provide an on-site directional signage and striping plan for proper circulation of the site to the Engineering and Planning Divisions. 4. The owner shall install a sewer cleanout just behind the property line, per City Standard Details, if no cleanout currently exists. If an existing cleanout is non- compliant or damaged, it shall be replaced. The sewer lateral for the secondary unit must connect with the existing sewer lateral upstream of the property line cleanout. All work shall be accomplished at the applicant’s cost. 5. Any work performed in the City’s right-of-way shall require an encroachment from the Engineering Division. The owner shall apply and pay all fees and deposits for the encroachment permit. Engineering Division contact: Sam Bautista, Principal Engineer (650) 829-6652 D) Police Department requirements shall be as follows: 1. The applicant shall comply with the provisions of Chapter 15.48 of the Municipal Code, "Minimum Building Security Standards" Ordinance revised May 1995. The Police Department reserves the right to make additional security and safety conditions, if necessary, upon receipt of detailed / revised building plans. 2. The building shall be equipped with a burglary alarm. 3. The building shall be protected by a central station silent robbery alarm. 4. Building entrances and cashier area shall be monitored by a closed circuit television camera system. Recordings must be maintained for a period of no less than 30 days. These cameras will be part of a digital surveillance system, which will be monitored on-site and accessible on the World Wide Web. This system must be of adequate resolution and color rendition to readily identify any person or vehicle in the event a crime is committed, anywhere on the premises. 5. Commercial establishments having one hundred dollars or more in cash on the premises after regular business hours shall lock such money in an approved type money safe with a minimum rating of TL-15. Police Department contact: Sergeant Bruce McPhillips (650) 877-8927 E) Building Division requirements shall be as follows: 1. Provide ventilation of drive through storage area. 2. Provide the location of the accessible path into the building. 3. The office spaces cannot exit through the storage area as shown. 4. The separation between the office and S-2 occupancy shall not be less than 1 hour construction. 5. Provide the area increase calculation for frontage the increase in area is incorrect. 6. All Building Division comments are preliminary; additional comments may be generated during plan review upon submittal of a building permit. (Building Division contact: Jim Kirkman, Chief Building Official at (650) 826-6670) F) Water Quality Control requirements shall be as follows: 1. Applicant needs to show where vehicles are being wiped down. 2. As per the project description (narrative) there shall be no on-site car washing. All vehicles will be taking off-site to an approved car washing facility. Any future plans to install car washing facilities at this location will required prior approval by the City and an amendment to the this Use Permit. There shall be no car washing within the public right-of-way. 3. If fire sprinklers in the building are modified, fire sprinkler test drain must be connected to the sanitary sewer. 4. If applicant is planning on modifying the grass area on the lot they must notify the Environmental Compliance Program in writing at least 30 days prior to modification. Water Quality Control contact: Rob Lecel or Andrew Wemmer (650) 877-8555 Exhibit B Development Agreement RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 ___________________________________________________________________________________ (Space Above This Line Reserved For Recorder’s Use) This instrument is exempt from recording fees pursuant to Government Code Sec. 27383. DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF SOUTH SAN FRANCISCO AND FLIGHTCAR, INC. SOUTH SAN FRANCISCO, CALIFORNIA DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this “Agreement”) is entered into as of ________, 2014 by and between FlightCar, Inc., a Delaware Corporation (“Developer”), and the City of South San Francisco (“City”), pursuant to California Government Code § 65864 et seq. A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code § 65864 et seq. (the “Development Agreement Statute”), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code § 65865, City has adopted procedures and requirements for the consideration of development agreements (South San Francisco Municipal Code (SSFMC) Chapter 19.60). This Development Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. Developer has a leasehold estate in certain real property located at 323 South Canal Street, South San Francisco, California consisting of two legal parcels (APN 014-092-110 & APN 014-092-220) under common ownership and which together create a 58,102 square foot site located between S. Linden and S. Maple Avenue in the Mixed Industrial (MI) zoning district and as more particularly described and depicted in Exhibit A (the “Project Site”). The eastern (smaller) parcel (APN 014-092-220), formerly a railroad spur, is 18 feet wide by 456 feet long and is currently unimproved with grass and gravel. Initially, the applicant plans on utilizing only the main parcel (APN 014-092-110) for the proposed use. D. The proposed Project (the “Project”) consists of the use of the main parcel (APN 014-092-110) for an auto-rental business and associated parking facility. South San Francisco Municipal Code (“SSFMC”) Section 20.330.010(D) prohibits vehicle parking on unpaved surfaces, and therefore the eastern parcel (APN 014-092-220) cannot be used for vehicle parking unless and until it is paved and a Subsequent Approval is obtained. E. Required Project Entitlements. Development of the Project requires that the Developer obtain from the City the following land use entitlements: Conditional Use Permit to allow an auto-rental business and parking facility at 323 South Canal Street. The paved portion of the Project Site will be utilized for the primary purpose of parking private customer owned automobiles to be rented to other customers on a peer to peer basis; the Project Site shall not be utilized for parking Developer owned or other corporately owned automobiles purchased and owned primarily for the purpose of rental. The approvals, purposes and development policies described in this Recital E are collectively referred to herein as the “Project Approvals.” F. City has determined that the Project presents certain public benefits and opportunities which are advanced by City and Developer entering into this Agreement. This Agreement will, among other things, (1) reduce uncertainties in planning and provide for the orderly development of the Project; (2) provide for and generate revenues for the City in the form of fees and other fiscal benefits; (3) provide for additional desirable employment; (4) provide economic development opportunities for Developer and other businesses within South San Francisco; and (5) otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. G. In exchange for the benefits to City described in the preceding Recital, together with the other public benefits that will result from the development of the Project, Developer will receive by this Agreement assurance that it may proceed with the Project in accordance with the “Applicable Law” (defined below), and therefore desires to enter into this Agreement. H. On ________________,2014, following a duly noticed public hearing, the Planning Commission adopted Resolution No. [___], recommending that the City Council approve this Agreement. I. The City Council, after conducting a duly noticed public hearing, has found that this Agreement is consistent with the General Plan and Zoning Ordinance and has conducted all necessary proceedings in accordance with the City’s rules and regulations for the approval of this Agreement. In accordance with SSFMC section 19.60.120 the City Council at a duly noticed public hearing adopted Ordinance No. [___], approving and authorizing the execution of this Agreement. AGREEMENT NOW, THEREFORE, the Parties, pursuant to the authority contained in Government Code Sections 65864 through 65869.5 and Chapter 19.60 of the Municipal Code and in consideration of the mutual covenants and agreements contained herein, agree as follows: ARTICLE 1. DEFINITIONS “Administrative Project Amendment” shall have that meaning set forth in Section 7.01 of this Agreement. “Administrative Agreement Amendment” shall have that meaning set forth in Section 7.02 of this Agreement. “Agreement” shall mean this Development Agreement. “Applicable Law” shall have that meaning set forth in Section 6.03 of this Agreement. “car” shall mean any type of automobile or vehicle, including but not limited to passenger vehicles, SUVs, vans, trucks and buses. “City Law” shall have that meaning set forth in Section 6.05 of this Agreement. “Change in Ownership” shall mean a sale of all or materially all of the Company’s business interests and assets. It shall not apply to any funding or financing be it in debt or equity that may change the companies capitalization and ownership. “Deficiencies” shall have that meaning set forth in Section 9.02 of this Agreement. “Development Agreement Statute” shall have that meaning set forth in Recital A of this Agreement. “Effective Date” shall have that meaning set forth in Section 2.01 of this Agreement. “Gross Receipts” and “Gross Receipts Fee” shall have those meanings as set forth in Section 3.02(b) of this Agreement. “Judgment” shall have that meaning set forth in Section 9.02 of this Agreement. “Periodic Review” shall have that meaning set forth in Section 10.05 of this Agreement. “Project” shall have that meaning set forth in Recital D of this Agreement. “Project Approvals” shall have that meaning set forth in Recital E of this Agreement. “Project Site” shall have that meaning set forth in Recital C of this Agreement. “Tax” and “Taxes” shall not include any generally applicable City Business License Tax or locally imposed Sales Tax. “Term” shall have that meaning set forth in Section 2.02 of this Agreement. ARTICLE 2. EFFECTIVE DATE AND TERM Section 2.01. Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective (the “Effective Date”). Section 2.02. Term. The term of this Agreement (the “Term”) shall commence upon the Effective Date and continue for a period of thirty (30) years, unless terminated earlier pursuant to Section 10.02 or Section 10.11. ARTICLE 3. OBLIGATIONS OF DEVELOPER Section 3.01. Obligations of Developer Generally. The parties acknowledge and agree that the City’s agreement to perform and abide by the covenants and obligations of City set forth in this Agreement is a material consideration for Developer’s agreement to perform and abide by its long term covenants and obligations, as set forth herein. Section 3.02. City Fees. (a) Developer shall pay those processing, inspection and plan checking fees and charges required by the City for processing applications and requests for Subsequent Approvals under the applicable regulations in effect at the time such applications and requests are submitted to the City. (b) Developer shall pay the City a Gross Receipts Fee equal to four percent 4% of all Gross Receipts generated by Developer from the Project and its Project-related car rental and car parking activities within the City. For the purposes of this section, Gross Receipts shall mean any consideration, whether cash, credit, and/or property charged in lieu of cash payments, whether or not received, for the goods or services provided by Developer in the operation of the Project, without any deduction therefrom whatsoever, except as identified below. Gross Receipts shall also include any consideration, whether cash, credit, and/or property charged in lieu of cash payments, whether or not received, for additional or ancillary goods or services offered to its customers. Such additional goods or services may include, but are not limited to supplemental car insurance charges; car washing charges, car detailing and/or painting charges; provision or installation of car accessories, car valet services; airport drop off or pick up service; transportation services; and any other goods or services for which consideration is charged to the customers by the Developer or his/her sublessee or contractor. Gross Receipts shall not include, or if included there will be deducted (but only to the extent they have been included), the following: (a) revenue from the sale of office related goods, such as computer hardware, office desks and chairs, and office supplies, and other goods incidental to the Project and not related to the car related goods or services offered to Developer’s customers; (b) cash or credit refunds provided to customers; (c) refundable deposits; (d) stored-value gift cards and gift certificates, or similar vouchers, except as converted into a sale by redemption, and at such time of redemption, it shall be included as Gross Receipts; (e) sums or credits received in settlement of claims for actual property loss or damage; (f) actual out-of-pocket expenses incurred by Developer and reimbursed to Developer by Developer’s customers, such as bridge tolls and parking tickets; (g) receipts from vending machines operated by a third party and located on the Project Site, however any commission or compensation paid to Developer for providing such service shall be included as Gross Receipts; (h) allowances, coupons, and discounts in the ordinary course of business to the extent there is no payment or compensation therefor; (i) sales of self-liquidating promotional items containing Developer’s logo and sold at or below cost; (j) gratuities provided to Developer's employees; and (k) taxes of whatever nature imposed on the sale of goods or services. (c) On or before the last day of each month, Developer shall file a return with the City’s Finance Director on forms provided by the City reporting the total amount of Gross Receipts received during the previous calendar month. On or before the last day of each month, Developer shall remit to the City’s Finance Director the Gross Receipts Fee required by Section 3.02(b) for the Gross Receipts collected from the previous calendar month. All Returns and remittances are due within ten days of the cessation of business for any reason, or within ten days of a Change in Ownership of the business. All Gross Receipts Fees collected by Developer pursuant to this Agreement shall be held in trust by the Developer for the account of the City until payment thereof is made to the City’s Finance Director. Further, notwithstanding the termination provisions of this Agreement, any outstanding Gross Receipts Fee incurred during the term of the Agreement shall become due upon termination and remitted to the City’s Finance Director within thirty (30) days following Agreement termination. (d) Developer shall keep and preserve for a period of three years all records as may be necessary to determine the amount of Gross Receipts Fee that is due to the City. The City’s Finance Director, or his or her designee, is authorized to examine the books, papers, and records of Developer for the purpose of verifying the accuracy of any return made, or if no return was made, to ascertain the Gross Receipts Fee due. Developer is required to furnish to the City’s Finance Director or his or her designee the means, facilities, and opportunity for making such examination and investigations. (e) Information confidential. To the extent allowable by the Public Records Act (Government Code Section 6250 et seq.), the Finance Director and any person having an administrative duty under the provisions of this Agreement shall keep confidential and not disclose the business affairs, operations, or information obtained by an investigation of records and equipment of Developer, including the amount or source of income, profits, losses, or expenditures of Developer. Nothing in this section shall be construed to prevent (1) the disclosure to, or the examination of records and equipment by, another city official, employee, or agent for collection of the Gross Receipts Fee for the sole purpose of administering or enforcing any provisions of this Agreement; (2) the disclosure of information and results of an examination of records of or relating to Developer to a court of law in a proceeding brought to determine the existence or amount of any Gross Receipts Fee liability of Developer; or (3) the disclosure of general statistics regarding fees collected or business done in the city without attribution to any particular business or entity. Section 3.03. West Coast Operations. Developer shall base its West Coast administrative and operations personnel within the offices located within the building located at the Project Site. Those offices shall be the primary office location for as many West Coast operational personnel of Developer as can reasonably be accommodated within that building. Section 3.04. Shop South San Francisco. Developer shall initiate and maintain a “Shop South San Francisco” initiative that will cultivate relationships between Developer, its customers, and the local business community. The program shall initially include at a minimum the following provisions: (a) Developer will conduct research to see if local restaurants, hotels, gas stations, etc. would appeal to Developer’s customers. (b) Developer will partner with businesses that would be willing to provide Developer’s customers with a coupon good at any of the participating merchants if used within 24 hours of their last transaction with Develooper. Merchants who participate in the program would be asked to put Developer’s sticker in their window or a Developer’s card/sign on display within their establishment to help with cross promotion efforts. Window signs must comply with the provisions of SSFMC Chapter 20.360. (c) For the first six months of the program, Developer will offer $5 in value to any participating merchant who could then opt to offer additional credit of their own and/or have the voucher stand at $5. (d) The Shop South San Francisco program shall continue as a trial program for six months following its inception. At the end of an initial trial period, Developer and City will be evaluate the results and a mutual decision will be made and required to determine whether to continue the program or not and under what terms. ARTICLE 4. OBLIGATIONS OF CITY Section 4.01. Obligations of City Generally. The parties acknowledge and agree that Developer’s agreement to perform and abide by its covenants and obligations set forth in this Agreement, including Developer’s decision to process the siting of the Project in the City, is a material consideration for City’s agreement to perform and abide by the long term covenants and obligations of City, as set forth herein. Section 4.02. Protection of Vested Rights. To the maximum extent permitted by law, City shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by Developer and to prevent any City Law, as defined below, from invalidating or prevailing over all or any part of this Agreement. City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. Except as authorized in Section 6.09, City shall not support, adopt, or enact any City Law, or take any other action which would violate the express provisions or intent of the Project Approvals. Section 4.03. Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, City shall assist Developer in reserving such capacity for sewer and water services as may be necessary to serve the Project. Section 4.04. Developer’s Right to Rebuild. City agrees that Developer may renovate or rebuild all or any part of the Project within the Term of this Agreement should it become necessary due to natural disaster, changes in seismic requirements, or should the buildings located within the Project become functionally outdated, within Developer’s sole discretion, due to changes in technology. Any such renovation or rebuilding shall be subject to the square footage and height limitations vested by this Agreement, and shall comply with the Project Approvals, the building codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA. ARTICLE 5. COOPERATION - IMPLEMENTATION Section 5.01. Processing Application for Subsequent Approvals. By approving the Project Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Section 5.02. Timely Submittals By Developer. Developer acknowledges that City cannot expedite processing Project Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (ii) cause Developer’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other necessary required materials as set forth in the Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent Approvals. Section 5.03. [Reserved] Section 5.04. [Reserved] Section 5.05. Other Government Permits. At Developer’s sole discretion and in accordance with Developer’s construction schedule, Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Project. City shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its reasonable efforts to assist Developer to ensure the timely availability of such permits and approvals. Section 5.06. Assessment Districts or Other Funding Mechanisms. (a) Existing Fees, Taxes and Assessments. The Parties understand and agree that as of the Effective Date the fees, taxes, exactions, and assessments listed in Exhibit B are the only City fees, taxes, exactions, and assessments. Except for those fees, taxes, exactions, and assessments listed in Exhibit B, City is unaware of any pending efforts to initiate, or consider applications for new or increased fees, exactions, or assessments covering the Project Site, or any portion thereof. (b) Future Fees, Taxes and Assessments. City understands that long term assurances by City concerning fees, taxes and assessments were a material consideration for Developer agreeing to enter this Agreement and to pay long term fees, taxes and assessments described in this Agreement. Nonetheless, City shall retain the ability to initiate or process applications for the formation of new assessment districts covering all or any portion of the Project Site and to adopt an ordinance imposing a new or revised business license tax, parking tax, and/or tax or fee applicable to car sharing businesses. Notwithstanding the foregoing, Developer retains all its rights to oppose the formation or proposed assessment of any new assessment district or increased assessment or the adoption of any ordinance imposing a new or revised fee or tax on the Project. In the event an assessment district is lawfully formed to provide funding for services, improvements, maintenance or facilities which are substantially the same as those services, improvements, maintenance or facilities being funded by the fees or assessments to be paid by Developer under the Project Approvals or this Agreement, or in the event any ordinance is adopted imposing a new or revised tax or fee on car sharing businesses, such fees or assessments to be paid by Developer under the Project Approvals or this Agreement shall be subject to reduction/credit in an amount equal to Developer’s new or increased assessment under the assessment district or any fee or tax paid pursuant to any such newly adopted ordinance, on a prospective basis. Alternatively, the new assessment district shall reduce/credit Developer’s new assessment in an amount equal to such fees or assessments to be paid by Developer under the Project Approvals or this Agreement, beginning from the effective date of the new fee or assessment for the remainder of the Agreement. (c) Business License Tax Modifications. In the event that the City’s business license tax is modified and duly approved by voters, and any subsequent tax modifications become applicable to the Project during the term of this Agreement, Developer shall be responsible to pay the applicable business license tax amounts, as modified. ARTICLE 6. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT Section 6.01. Vested Right to Develop. Developer shall have a vested right to develop the Project on the Project Site in accordance with the terms and conditions of this Agreement. Nothing in this section shall be deemed to eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals. Section 6.02. Permitted Uses Vested by This Agreement. The permitted uses of the Project Site; the density and intensity of use of the Project Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; and other terms and conditions of development applicable to the Project, shall be as set forth in the Project Approvals and, as and when they are issued (but not in limitation of any right to develop as set forth in the Project Approvals), the Subsequent Approvals. Section 6.03. Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the Project (the “Applicable Law”) shall be those set forth in this Agreement and the Project Approvals, and, with respect to matters not addressed by this Agreement or the Project Approvals, those rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, heights, fees, exactions, and taxes in force and effect on the Effective Date of this Agreement. Section 6.04. Uniform Codes. City may apply to the Project Site, at any time during the Term, then current Uniform Building Code and other uniform construction codes, and City’s then current design and construction standards for road and storm drain facilities, provided any such uniform code or standard has been adopted and uniformly applied by City on a citywide basis and provided that no such code or standard is adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project. Section 6.05. No Conflicting Enactments. Except as authorized in Section 6.09, City shall not impose on the Project (whether by action of the City Council or by initiative, referendum or other means) any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each individually, a “City Law”) that is in conflict with Applicable Law or this Agreement or that reduces the development rights or assurances provided by this Agreement. Without limiting the generality of the foregoing, any City Law shall be deemed to conflict with Applicable Law or this Agreement or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project: (a) Change any land use designation or permitted use of the Project Site; (b) Limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc.) for the Project; (c) Limit or control the location of buildings, structures, grading, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in the Project Approvals or the Subsequent Approvals (as and when they are issued); (d) Limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner; (e) Apply to the Project any City Law otherwise allowed by this Agreement that is not uniformly applied on a City-wide basis to all substantially similar types of development projects and project sites; (f) Result in Developer having to substantially delay construction of the Project or require the issuance of additional permits or approvals by the City other than those required by Applicable Law; (g) Establish, enact, increase, or impose against the Project or Project Site any fees, taxes (including without limitation general, special and excise taxes but excluding any increased local sales tax or increased city business license tax or any new or revised parking tax or fee applicable to car sharing businesses), assessments, liens or other monetary obligations (including generating demolition permit fees, encroachment permit and grading permit fees) other than those specifically permitted by this Agreement or other connection fees imposed by third party utilities; (h) Impose against the Project any condition, dedication or other exaction not specifically authorized by Applicable Law; or (i) Limit the processing or procuring of applications and approvals of Subsequent Approvals. Section 6.06. Initiatives and Referenda. (a) If any City Law is enacted or imposed by initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement, such Law shall not apply to the Project. (b) Except as authorized in Section 6.09, without limiting the generality of any of the foregoing, no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, building permits or other entitlements to use that are approved or to be approved, issued or granted within the City, or portions of the City, shall apply to the Project. (c) To the maximum extent permitted by law, City shall prevent any City Law from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. (d) Developer reserves the right to challenge in court any City Law that would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement. Section 6.07. [Reserved] Section 6.08. Life of Subdivision Maps, Development Approvals, and Permits. The term of any subdivision map or any other map, permit, rezoning or other land use entitlement approved as a Project Approval shall automatically be extended for the longer of the duration of this Agreement (including any extensions) or the term otherwise applicable to such Project Approval if this Agreement is no longer in effect. The term of this Agreement and any subdivision map or other Project Approval shall not include any period of time during which a development moratorium (including, but not limited to, a water or sewer moratorium or water and sewer moratorium) or the actions of other public agencies that regulate land use, development or the provision of services to the land, prevents, prohibits or delays the construction of the Project or a lawsuit involving any such development approvals or permits is pending. Section 6.09. State and Federal Law. As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations. Not in limitation of the foregoing, nothing in this Agreement shall preclude City from imposing on Developer any fee specifically mandated and required by state or federal laws and regulations. ARTICLE 7. AMENDMENT Section 7.01. To the extent permitted by state and federal law, any Project Approval or Subsequent Approval may, from time to time, be amended or modified in the following manner: (a) Administrative Project Amendments. Upon the written request of Developer for an amendment or modification to a Project Approval or Subsequent Approval, the Chief Planner or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the Chief Planner or his/her designee finds that the proposed amendment or modification is minor, consistent with this Agreement and Applicable Law, and will result in no new significant impacts, the amendment shall be determined to be an “Administrative Project Amendment” and the Chief Planner or his designee may, except to the extent otherwise required by law, approve the Administrative Project Amendment without notice and public hearing. Without limiting the generality of the foregoing, lot line adjustments, minor alterations in vehicle circulation patterns or vehicle access points, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the design concepts of the Project, variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Project Site diagram or Project Site legal description shall be treated as Administrative Project Amendments. (b) Non-Administrative Project Amendments. Any request by Developer for an amendment or modification to a Project Approval or Subsequent Approval which is determined not to be an Administrative Project Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement. Section 7.02. Amendment of this Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows: (a) Administrative Agreement Amendments. Any amendment to this Agreement which does not substantially affect (i) the Term of this Agreement, (ii) permitted uses of the Project Site, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Project Site or the maximum height or size of proposed buildings or (vi) monetary contributions or payments by the Developer, shall be considered an “Administrative Agreement Amendment” and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. Such amendment may be approved by City resolution. (b) Any amendment to this Agreement other than an Administrative Agreement Amendment shall be subject to recommendation by the Planning Commission (by advisory resolution) and approval by the City Council (by ordinance) following a duly noticed public hearing before the Planning Commission and City Council, consistent with Government Code Sections 65867 and 65867.5. ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE Section 8.01. Assignment and Transfer. Developer may transfer or assign all or any portion of its interests, rights, or obligations under the Agreement and the Project Approvals to third parties acquiring an interest or estate in the Project or any portion thereof including, without limitation, purchasers or lessees of lots, parcels, or facilities. Developer will seek City's prior written consent to any transfer, which consent will not be unreasonably withheld or delayed. City may refuse to give consent only if, in light of the proposed transferee's reputation and financial resources, such transferee would not in City's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination will be made by the City Manager and will be appealable to the City Council. Notwithstanding the foregoing, the parties acknowledge that debt or equity financing of Developer shall not be considered a transfer of an interest or estate in the Project or subject to the foregoing. ARTICLE 9. COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 9.01. Cooperation. In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to the Agreement challenging the validity of any provision of the Agreement or any Project approval, the parties will cooperate in defending such action or proceeding. City shall promptly notify Developer of any such action against City. If City fails promptly to notify Developer of any legal action against City or if City fails to cooperate in the defense, Developer will not thereafter be responsible for City's defense. The parties will use best efforts to select mutually agreeable legal counsel to defend such action, and Developer will pay compensation for such legal counsel (including City Attorney time and overhead for the defense of such action), but will exclude other City staff overhead costs and normal day-to-day business expenses incurred by City. Developer's obligation to pay for legal counsel will extend to fees incurred on appeal. In the event City and Developer are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel and Developer will pay its and the City's legal fees and costs. Developer shall reimburse the City for all reasonable court costs and attorneys’ fees expended by the City in defense of any such action or other proceeding or payable to any prevailing plaintiff/petitioner. Developer’s obligations under this Section shall survive expiration, termination or cancellation of this Agreement. Section 9.02. Reapproval. If, as a result of any administrative, legal, or equitable action or other proceeding, all or any portion of the Agreement or the Project approvals are set aside or otherwise made ineffective by any judgment in such action or proceeding ("Judgment"), based on procedural, substantive or other deficiencies ("Deficiencies"), the parties will use their respective best efforts to sustain and reenact or readopt the Agreement, and/or the Project approvals, that the Deficiencies related to, unless the Parties mutually agree in writing to act otherwise: (i) If any Judgment requires reconsideration or consideration by City of the Agreement or any Project approval, then the City will consider or reconsider that matter in a manner consistent with the intent of the Agreement and with Applicable Law. If any such Judgment invalidates or otherwise makes ineffective all or any portion of the Agreement or Project approval, then the parties will cooperate and will cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of the Agreement and with Applicable Law. City will then consider readopting or reenacting the Agreement, or the Project approval, or any portion thereof, to which the Deficiencies related. (ii) Acting in a manner consistent with the intent of the Agreement includes, but is not limited to, recognizing that the parties intend that Developer may develop the Project as described in the Agreement, and adopting such ordinances, resolutions, and other enactments as are necessary to readopt or reenact all or any portion of the Agreement or Project approvals without contravening the Judgment. ARTICLE 10. DEFAULT; REMEDIES; TERMINATION Section 10.01. Defaults. Any failure by either party to perform any term or provision of the Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other party (unless such period is extended by mutual written consent), will constitute a default under the Agreement. Any notice given will specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, will be deemed to be a cure within such 30-day period. Upon the occurrence of a default under the Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of the Agreement or, in the event of a material default, terminate the Agreement. If the default is cured, then no default will exist and the noticing party shall take no further action. Section 10.02. Termination. If City elects to consider terminating the Agreement due to a material default of Developer, then City will give a notice of intent to terminate the Agreement and the matter will be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing. Developer will have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing, and elects to terminate the Agreement, City will give written notice of termination of the Agreement to Developer by certified mail and the Agreement will thereby be terminated sixty (60) days thereafter. Section 10.03. Enforced Delay; Extension of Time of Performance. In addition to specific provisions of the Agreement, neither party will be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations, judicial decisions, or similar basis for excused performance which is not within the reasonable control of the party to be excused. Litigation attacking the validity of the Agreement or any of the Project approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to the Agreement will be deemed to create an excusable delay as to Developer. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of any such extension will be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 10.04. Legal Action/Default by City. Developer may institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement in the Agreement, enjoin any threatened or attempted violation thereof, and enforce by specific performance the obligations and rights of the parties thereto. The sole and exclusive remedy for any default or violation of the Agreement by the City will be specific performance. Section 10.05. Periodic Review. (a) Conducting the Periodic Review. Throughout the Term of this Agreement, at least once every twelve (12) months following the execution of this Agreement, City shall review the extent of good-faith compliance by Developer with the terms of this Agreement. This review (the “Periodic Review”) shall be conducted by the Chief Planner or his/her designee and shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1. (b) Notice. At least five (5) days prior to the Periodic Review, and in the manner prescribed in Section 11.09 of this Agreement, City shall deposit in the mail to Developer a copy of any staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related exhibits concerning Developer’s performance hereunder. Developer shall be permitted an opportunity to respond to City’s evaluation of Developer’s performance, either orally at a public hearing or in a written statement, at Developer’s election. Such response shall be made to the Chief Planner. (c) Good Faith Compliance. During the Periodic Review, the Chief Planner shall review Developer’s good-faith compliance with the terms of this Agreement. At the conclusion of the Periodic Review, the Chief Planner shall make written findings and determinations, on the basis of substantial evidence, as to whether or not Developer has complied in good faith with the terms and conditions of this Agreement. The decision of the Chief Planner shall be appealable to the City Council. If the Chief Planner finds and determines that Developer has not complied with such terms and conditions, the Chief Planner may recommend to the City Council that it terminate or modify this Agreement by giving notice of its intention to do so, in the manner set forth in California Government Code Sections 65867 and 65868. The costs incurred by City in connection with the Periodic Review process described herein shall be borne by Developer. (d) Failure to Properly Conduct Periodic Review. If City fails, during any calendar year, to either (i) conduct the Periodic Review or (ii) notify Developer in writing of City’s determination, pursuant to a Periodic Review, as to Developer’s compliance with the terms of this Agreement and such failure remains uncured as of December 31 of any year during the term of this Agreement, such failure shall be conclusively deemed an approval by City of Developer’s compliance with the terms of this Agreement. (e) Written Notice of Compliance. With respect to any year for which Developer has been determined or deemed to have complied with this Agreement, City shall, within thirty (30) days following request by Developer, provide Developer with a written notice of compliance, in recordable form, duly executed and acknowledged by City. Developer shall have the right, in Developer’s sole discretion, to record such notice of compliance. Section 10.06. Legal Action/Default by Developer. In the event Developer defaults under the terms of this Agreement, City shall have all rights and remedies provided herein or under law. City may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, recover damages for any default, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the purpose of this Agreement. Section 10.07. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of San Mateo County, California. Section 10.08. Resolution of Disputes. With regard to any dispute involving development of the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at City’s request, meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 10.08 shall in any way be interpreted as requiring that Developer and City and/or City’s designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings. Section 10.09. Attorneys’ Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys’ fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled. Section 10.10. Hold Harmless. Developer shall hold City and its elected and appointed officers, agents, employees, and representatives harmless from claims, costs, and liabilities for any personal injury, death, or property damage which is a result of, or alleged to be the result of, the construction of the Project, or of operations performed under this Agreement by Developer or by Developer’s contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer’s contractors, subcontractors, agents or employees. Nothing in this section shall be construed to mean that Developer shall hold City harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, any gross negligence or willful misconduct on the part of City, its elected and appointed representatives, offices, agents and employees. Developer’s obligations under this Section shall survive expiration, termination or cancellation of this Agreement and shall be independent of other indemnity agreements. Section 10.11. Termination Upon Cessation. In the event Developer permanently terminates operations of the Project at the Project Site, Developer shall so notify City and this Agreement shall be deemed terminated effective upon the date of cessation of such operations. In such event, the parties agree to execute and deliver all such instruments and documents as may be reasonably necessary to evidence such termination and to record the same in the Official Records of the County of San Mateo. ARTICLE 11. MISCELLANEOUS Section 11.01. Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 11.02. No Agency. It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Project Approvals, Subsequent Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. Section 11.03. Enforceability. City and Developer agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule, regulation or policy adopted by City that changes, alters or amends the rules, regulations and policies applicable to the development of the Project Site at the time of the approval of this Agreement as provided by California Government Code Section 65866. Section 11.04. Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, either City or Developer may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party. Section 11.05. Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. Section 11.06. Construction. Each reference in this Agreement to this Agreement or any of the Project Approvals or Subsequent Approvals shall be deemed to refer to the Agreement, Project Approval or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Section 11.07. Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; “shall” is mandatory; “may” is permissive. If there is more than one signer of this Agreement, the signer obligations are joint and several. Section 11.08. Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Project, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Project Site and is binding upon the owner of all or a portion of the Project Site and each successive owner during its ownership of such property. Section 11.09. Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by telefacsimile (with original forwarded by regular U.S. Mail) by registered or certified mail (return receipt requested), or by Federal or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party’s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to City, to: City Manager City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Phone: (650) 829-6629 Fax: (650) 829-6623 With a Copy to: Meyers Nave 575 Market Street, Suite 2080 San Francisco, CA 94105 Attn: Steven T. Mattas, City Attorney Phone: (415) 421-3711 Fax: (415) 421-3767 If to Developer, to: FlightCar, Inc Attn: Kevin Petrovic 277 Broadway Cambridge, MA 02139 Phone: (609) 356-2107 With Copies to: Duane Morris LLP Spear Tower One Market Plaza, Suite 2200 San Francisco, CA 94105-1127 Attn: Lock Holmes Phone: (415) 957-3025 Fax: (415) 358-5589 Section 11.10. Entire Agreement, Counterparts And Exhibits. This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of [___] pages and two (2) exhibits which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: (a) Exhibit A: Description and Diagram of Project Site (b) Exhibit B: Existing City Fees, Taxes, Exactions, and Assessments Section 11.11. Recordation Of Development Agreement. Pursuant to California Government Code § 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of San Mateo. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written. CITY CITY OF SOUTH SAN FRANCISCO, a municipal corporation By:_______________________________ Name:____________________________ City Manager Developer FLIGHTCAR, INC., a Delaware corporation By:_______________________________ Name: Kevin Petrovic Its:_______________________________ ATTEST: By: ___________________________ City Clerk APPROVED AS TO FORM: By: ___________________________ City Attorney 2274080.9 Exhibit A: Description and Diagram of Project Site LEGAL DESCRIPTION The leasehold estate in the real property in the City of South San Francisco, County of San Mateo, State of California, described as follows: [LEGAL DESCRIPTION TO BE PROVIDED PRIOR TO EXECUTION] Diagram of Project Site EXHIBIT B Existing City Fees, Taxes, Exactions, and Assessments Developer agrees that Developer shall be responsible for the payment of the following fees, charges, exactions, taxes, and assessments (collectively, “Assessments”). From time to time, the City may update, revise, or change its Assessments. Further, nothing herein shall be construed to relieve the Property from common benefit assessments levied against it and similarly situated properties by the City pursuant to and in accordance with any statutory procedure for the assessment of property to pay for infrastructure and/or services that benefit the Property. Except as indicated below, the amount paid for a particular Assessment, shall be the amount owed, based on the calculation or formula in place at the time payment is due, as specified below. 1.1 Administrative/Processing Fees. The Developer shall pay the applicable application, processing, administrative, legal and inspection fees and charges, as currently adopted pursuant to City’s Master Fee Schedule and required by the City for processing of land use entitlements, including without limitation, General Plan amendments, zoning changes, precise plans, development agreements, conditional use permits, variances, transportation demand management plans, tentative subdivision maps, parcel maps, lot line adjustments, general plan maintenance fee, demolition permits, and building permits. 1.2 Impact Fees (Existing Fees). Except as modified below, existing impact fees shall be paid for net new square footage, if any, at the rates and at the times prescribed in the resolution(s) or ordinance(s) adopting and implementing the fees. 1.2.1 Child Care Impact Fee (SSFMC, ch. 20.310; Ordinance 1301-2001). If applicable to improvements of the Project, Developer shall pay the City’s Child Care Impact Fee, as described in South San Francisco Municipal Code Chapter 20.310. 1.2.2 Public Safety Impact Fee. (Resolution 97-2012) Prior to receiving a building permit for the Project, if applicable, the Developer shall pay the Public Safety Impact Fee, as set forth in Resolution No. 97-2012, adopted on December 10, 2012 to assist the City’s Fire Department and Police Department with funding the acquisition and maintenance of Police and Fire Department vehicles, apparatus, equipment, and similar needs for the provision of public safety services. 1.2.3 Sewer Capacity Charge. (Resolution 39-2010) Prior to receiving a building permit for Tenant Improvements for the Project, and if applicable, the Developer shall pay the Sewer Capacity Charge, as set forth in Resolution No. 39-2010. 1.2.4 General Plan Maintenance Fee. (Resolution 74-2007) 1.3 User Fees. 1.3.1 Sewer Service Charges (assessed as part of property tax bill) 1.3.2 Stormwater Charges (assessed as part of property tax bill) Exhibit C FlightCar Project Plans and Supplemental Documents 2286363.1