HomeMy WebLinkAboutOrd. 1488-2014ORDINANCE NO. 1488 -2014
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
AN ORDINANCE ADOPTING A DEVELOPMENT
AGREEMENT FOR 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, as part of its application, the Applicant has sought approval of a
Development Agreement, which would clarify and obligate several project features, including
payment of a gross receipts fee, establishment of an operational hub, and local business
promotion; 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, by separate Resolution, the City Council for the City of South San
Francisco found the Project to be categorically exempt from environmental review pursuant to
CEQA Guidelines Section 15301 — Class 1: Minor Alteration to Existing Facilities, in
accordance with the provisions of CEQA and the CEQA Guidelines; and,
WHEREAS, the Planning Commission for the City of South San Francisco held a
lawfully noticed public hearing on June 19, 2014 to solicit public comment and consider the
CEQA determination, proposed entitlements and take public testimony, at the conclusion of
which, the Planning Commission recommended that the City Council approve the Conditional
Use Permit and approve the Development Agreement; and
WHEREAS, the City Council of the City of South San Francisco held a duly noticed
public hearing on July 9, 2014 to solicit public comment and consider the proposed Conditional
Use Permit and Development Agreement and take public testimony.
NOW, THEREFORE, the City Council of the City of South San Francisco does hereby
ordain as follows:
SECTION 1. Findings.
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
application; 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 Planning
Commission deliberations; all reports, minutes, and public testimony submitted as part of the
City Council's duly noticed public hearing on July 9, 2014, and City Council deliberations; and
any other evidence (within the meaning of Public Resources Code §21080(e) and §21082.2), the
City Council of the City of South San Francisco hereby finds as follows:
A. The foregoing Recitals are true and correct and made a part of this Ordinance.
B. The proposed Development Agreement (attached as Exhibit A), is incorporated
by reference and made a part of this Ordinance, as if set forth fully herein.
C. 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.
D. The proposed Project is consistent with the General Plan, which allows for a wide
range of uses including manufacturing, industrial processing, general service, warehousing,
storage and distribution, and commercial service uses. The site is located within the Lindenville
planning sub -area and is consistent with guiding policy 3.2 -G -3, which states "enhance the
appearance of the area by undertaking streetscape and other improvements." The Project
includes improvements to the front of the building with the addition of landscaping and signage,
which is an improvement for the property. The Project is also consistent with the guiding and
implementing polices of the Lindenville planning sub -area by redeveloping and improving an
existing site. Further, the land uses are compatible with the goals, policies, and land use
designations established in the General Plan (see Gov't Code, § 65860), and none of the land
uses will conflict with or impede achievement of any of the goals, policies, or land use
designations established in the General Plan.
E. The City Council has independently reviewed the proposed Development
Agreement, the General Plan, the South San Francisco Municipal Code, and applicable state and
federal law, including Government Code section 65864, et seq., and has determined that the
proposed Development Agreement complies with all applicable zoning, subdivision, and
building regulations and with the General Plan. This finding is based upon all evidence in the
Record as a whole, including, but not limited to: the City Council's independent review of these
documents, oral and written evidence submitted at the public hearings on the Project, including
advice and recommendations from City staff.
F. The proposed Development Agreement for the Project states its specific duration.
This finding is based upon all evidence in the Record as a whole, including, but not limited to:
the City Council's independent review of the proposed Development Agreement and its
determination that Section 2 of the Development Agreement states that the Development
Agreement shall expire thirty (30) years from the effective date of this Ordinance.
G. The proposed Development Agreement incorporates the permitted uses, density
and intensity of use for the property subject thereto, as reflected in the proposed Project (P14-
0020), Conditional Use Permit (UP 14 -0001) and Development Agreement (DA 14- 0001). This
finding is based upon all evidence in the Record as a whole, including, but not limited to, the
City Council's independent review of the proposed Development Agreement and its
determination that the Development Agreement sets forth the Project approvals, development
standards, and the documents constituting the Project.
H. The proposed Development Agreement states the maximum permitted height and
size of proposed buildings on the property subject thereto. This finding is based upon all
evidence in the Record as a whole, including, but not limited to, the City Council's independent
review of the proposed Development Agreement and its determination that the Development
Agreement only conditions the proposed use of the property at 323 South Canal Street and there
are no proposed changes to the building that would alter the maximum permitted height and size
of buildings.
I. The proposed Development Agreement states specific provisions for reservation
or dedication of land for public purposes. This finding is based on all evidence in the Record as a
whole, including, but not limited to the City Council's independent review of the Development
Agreement that will only condition the operation of the proposed business, which would not
develop any new structures that require reservation or dedication of land for public purposes.
SECTION 2. Approval of Development Agreement.
A. The City Council of the City of South San Francisco hereby approves the
Development Agreement with FlightCar, Inc, attached hereto as Exhibit A and incorporated
herein by reference.
B. The City Council further authorizes the City Manager to execute the Development
Agreement, on behalf of the City, in substantially the form attached as Exhibit A, and to make
revisions to such Agreement, subject to the approval of the City Attorney, which do not
materially or substantially increase the City's obligations thereunder.
SECTION 3. Severability.
If any provision of this Ordinance or the application thereof to any person or
circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the
application of such part or provision to other persons or circumstances shall not be affected
thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are
severable. The City Council of the City of South San Francisco hereby declares that it would
have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof
irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs,
sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
SECTION 4. Publication and Effective Date.
Pursuant to the provisions of Government Code Section 36933, a summary of this
Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council
meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the
Summary, and (2) post in the City Clerk's Office a certified copy of this Ordinance. Within
fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the
summary, and (2) post in the City Clerk's Office a certified copy of the full text of this
Ordinance along with the names of those City Council members voting for and against this
Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and
after its adoption.
Introduced and adopted at a regular meeting of the City Council of the City of South San
Francisco, held the 9th day of July, 2014.
Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the
City Council held the 23rd day of July, 2014 by the following vote:
AYES: Councilmembers Mark N. Addiego, Pradeep Gupta, and Liza Normandy
Vice Mayor Richard A. Garbarino and Mayor Karyl Matsumoto
NOES:
None
ABSTAIN:
None
ABSENT:
None
ATTEST:�'� -��
Anna Brown, Deputy City Clerk
As Mayor of the City of South San Francisco, I do hereby approve the foregoing
Ordinance this 23rd day of July, 2014.
Exhibit A
Development Agreement
2293355.1
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."
I
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 June 19, 2014, following a duly noticed public hearing, the Planning
Commission adopted Resolution No. 2746 -2014, 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; (fl 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
4
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; 0) 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
Proj ect.
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
10
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
11
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
12
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.
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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.
14
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.
15
(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.
16
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.
17
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
18
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
19
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 23 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:
20
(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 Developer
CITY OF SOUTH SAN FRANCISCO, FLIGHTCAR, INC.,
a municipal corporation a Delaware corporation
By:
Name:
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
2274080.10
21
Name: Kevin Petrovic
Its:
Exhibit A: Description and Diagram of Project Site
LEGAL DESCRIPTION OF PROJECT SITE
The leasehold estate in the real property in the City of South San Francisco, County of San
Mateo, State of California, described as follows:
1.1 acres of real property located at 323 South Canal Street, South San Francisco,
California, encompassing the following two parcels:
1) PARCEL 4 OF PARCEL MAP SOUTH LINDEN TRACT NO. 1, WITH
ASSESSOR PARCEL NUMBER 014 - 092 -110, RECORDED IN VOL. 6, PAGE 2
ON AUGUST 2,1968; AND,
2) 18' BY 462.82' PARCEL 12, WITH STATE BOARD EQUALIZATION NUMBER
872- 41 -18C, RECORDED IN VOL. 51, PAGE 46.
DIAGRAM OF PROJECT SITE
22
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18
A PARCEL
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22
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)
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