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HomeMy WebLinkAbout2009-06-18 e-packeto ~ - ~ SPECIAL MEETING ~. o CITY COUNCIL c'~lIFOR~l~ OF THE CITY OF SOUTH SAN FRANCISCO P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, California 94083 CITY HALL CONFERENCE ROOM 400 GRAND AVENUE THURSDAY, JUNE 18, 2009 6:00 P.M. NOTICE IS HEREBY GIVEN, pursuant to Section 54956 of the Government Code of the State of California, the City Council of the City of South San Francisco will hold a Special Meeting on Thursday, the 18th day of June, 2009, at 6:00 p.m., in the City Hall Conference Room, 400 Grand Avenue, South San Francisco, California. Purpose of the meeting: 1. Call to Order. 2. Roll Call. 3. Public Comments -comments are limited to items on the Special Meeting Agenda. 4. CLOSED SESSION: CONFERENCE WITH LABOR NEGOTIATORS (Pursuant to <Jovernment Code § 54957.6) Agency designated representative: Kathy Mount Employee organizations: AFSCME, Lc-cal 1569, AFL-CIO Confidential 1Jnit, Teamsters Local 856 International .Association of Firefighters, Local 1507 Mid-management Unit International Union of Operating Engineers, Local 39 South San Francisco Police Association Public Safety Managers Executive Management Unit. 5. Interview applicants for the Housing Authority Tenant Commissioner Position. 6: 30 p. m.: Eloise Heden 6. Interview applicants for the Planning Commission. 6: 40 p. m.: Pra~deep Gupta 6: SO p. m.: Karen Holland 7: OD p. m.: Dir,!-Lii Lin 7:10 p. m.: Susie MacFarland 7. Interview applicants for the Library Board. 7: 20 p. m.: Teresa Avelar 7: 30 p. m.: Betty Battaglia 7: 40 p. m.: Francisca "Cisca "Hansen 7: SO p. m.: Karen Holland 8. Discussion and appointment of applicant to the Housing Authority Tenant Commissioner Position. 9. Discussion and appointment of applicants to the Planning Commission. 10. Discussion and appointment of applicants to the Library Board. 11. Resolutions approving (1) Revisions to Amended and Restated Oyster Point Marina :Ferry Terminal Lease and License Agreement with the San Mateo County Harbor District and the Bay Area Water Emergency Transportation Authority, and (2) the Three Party Agreement Regarding Distribution a:nd Use of San Mateo County Measure A Funds for Terminal and Service. 12. An Urgency Ordinance of the City of South San Francisco making findings and establishing a development moratorium in a portion of the South El Camino Real Corridor in order to prevent uses inconsistent with the pending El Camino Real General Plan Amendment, the Chestnut/El Camino Real Specific Plan and the Zoning Ordinance update. 13. CLOSED SESSION: Conference with Legal Counsel - Anticipated Litigation (Pursuant to CJovernment Code Section 54956.9(b).) Significant E~~posure to Litigation One Case 14. Adjournment„ Anna Hernandez Deputy City Clerk SPECIAL CITY COUNCIL MEETING JUNE 18, 2009 AGENDA PAGE 2 DATE: June 18, 2009 TO: Honorable Mayor and City Council FROM: Krista Martinelli-Larson, City Clerk SUBJECT: Board and Commission Interviews/Appointments. RECOMMENDATION It is recommended that the City Council consider the attached citizen applications for appointment to seats on the Planning Commission, Library Board and Housing Authority; and that Council interview each citizen. It is further recommended that upon completion of interviews for the positions, Council move to appoint one (1) resident to a partial term on the Planning Commission, two (2) residents to full terms on the Library Board and one (1) resident to a partial term as a Housing Authority Tenant Commissioner. BACKGROUND/DISCUSSION On June 1, 2009 the City Clerk's Office initiated recruitment as follows: Planning Commission- Vacancy (Oborne). One (1) applicant maybe appointed to a partial term on the Housing Authority to expire December 31, 2012. Library Board- Term Expirations (Battaglia and Hansen). Two (2) applicants maybe appointed to respective full terms on the Library Board to expire June 30, 2012. On June 3, 2009, due to the resignatic-n of Tenant Commissioner Reardon, the City Clerk's Office initiated recruitment as follows: Housing Authority Tenant Commissioner- Vacancy (Reardon). One (1) applicant maybe appointed to a partial term as a Tenant Commissioner on the Housing Authority to expire March 31, 201 1. Special Requirements: To be considered for appointment, persons must be renting their living space in the property governed by the Authority. Pursuant to California Health and Safety Code Section 34270, the commissioner shall be over 62 years of age if the authority has tenants of such age. The City Clerk's Office posted the attached Notices of Term Expirations and Vacancies on June 1, 2009 and June 3, 2009 respectively. The notices were posted at City Hall, the Municipal Services Building, City Hall Annex, `Nest Orange Library and the Grand Avenue Library. Statements announcing the term expirations/vacancies and identifying the respective application deadline including a link to the application were posted on the City's website homepage during the recruitment periods. Notification was sent to the Agenda Distribution List maintained by the City. Staff Report Subject: Board and Commission Interviews/Appointments. Page 2 Clerk's Office. A brief announcement: of the term expirations/vacancy was posted on the Community Channel until the expiration of the application deadlines. SUMMARY OF MEETING TIMES, 'TERM LENGTHS/LIMITS AND AGENCY PURPOSE The Planning Commission meets the first and third Thursdays of the month at 7:30 p.m. at the Municipal Services Building. Commissioners are appointed to a four (4) year term with a limit of appointment to three (3) consecutive terms. The purpose of the Planning Commission is to make recommendations as to the orderly, physical growth and development of the community in relation to land subdivision, planning and zoning. It makes recommendations in matters of zoning changes, variances, special use permits, parcel maps, subdivision maps and other related matters. The Library Board meets on the fourth Tuesday of every month at 6:00 p.m. at the Main Library. Trustees are appointed to a three (3) year term with a limit of appointment to four (4) consecutive terms. The Library Board works in conjunction with the Library Director to develop a plan of service, evaluate and advise Council and staff on the need for services and programs and adopt policies as necessary for the administration of the Library. The Housing Authority meets on the second Monday of each month at 6:00 p.m., at 350 C Street in South San Francisco. Commissioners are appointed to four-year terms. Tenant Commissioners are appointed to two-year terms and must be renting their living space in the property governed by the Authority. The Authority approves the awarding of bids for any work to be done in the Authority (e.g., painting, tree trimming, and landscape maintenance), changes to all policies, lease agreements, and contracts. APPLICATIONS RECEIVED The applications identified below are qualified. The City Clerk's Office has confirmed the applicants are registered to vote in the City of South San Francisco. A. Applications Received by the City Clerk's Office. Planning Commissioner: One (1) vacancy partial term expires December 31, 2012. Pradeep Gupta Karen Holland Din-Lii Lin Susie J. MacFarland Library Board: Two (2) term expirations. Teresa Avelar Betty Battaglia -application for reappointment Cisca Hansen -application for reappointment Karen Holland Staff Report Subject: Board and Commission Interviews/Appointments. Page 3 Housing Authority Tenant Commissioner: One (1) vacancy partial term expires March 31, 2011. Eloise Heden INTERVIEW QUESTIONS Council's standard interview questions for new applicants and incumbents are attached. Proposed specific questions pertaining to each Commission are also provided for Council's consideration. CONCLUSION Upon review of the applications and completion of interviews, Council may consider and entertain motion(s) to appoint applicants to the various positions. /s/ Krista Martinelli-Larson Krista Martinelli-Larson City Clerk rry M. Nagel City Manager Attachments: 06.01.09 Notice of Term Expirations and Vacancies 06.03.09 Notice of Term. Expirations and Vacancies Applications Interview Questions Ballots Attachment 1 o ~_ cz H ~ v o c`4LiFOR~1~ BOARD AND COMMISSIONS TERM EXPIRATIONS & VACANCIES NOTICE NOTICE is hereby given of a vacancy on the South San Francisco Planning Commission as follows: Planning Commission: One seat is open due to a Commissioner's resignation. Time remaining on term: present through 12/31/2012. The City Council will fill the above identified vacancy upon consideration of applications filed with the Office of the City Clerk as set forth below. NOTICE is hereby given of th.e expiration of terms on the South San Francisco Library Board as follows: Library Board: The respective terms of Trustees Battaglia and Hansen expire 6/30/2009. Incumbents Battaglia and Hansen are eligible to apply for reappointment. The City Council will consider incumbents' applications along with any others filed with the Office of the City Clerk as set :forth below. AGENCY RESPONSIBILITIES & MEETING TIMES The Library Board meets on the fourth Tuesday of every month at 6:00 p.m. at the Main Library. Trustees are appointed to a three (3) year term with a limit of appointment to four (4) consecutive terms. The Library Board works in conjunction with the Library ]director to develop a plan of service, evaluate and advise Council and. staff on the need for services and programs and adopt policies as necessary for the administration of the Library. The Planning Commission meets the first and third Thursdays of the month at 7:30 p.m. at the Municipal Services Building. Commissioners are appointed to a four (4) year term with a limit of appointment to three (3) consecutive terms. The purpose of the Planning Commission is to make recommendations as to the orderly, physical growth and development of the community in relation to land subdivision, planning and zoning. It makes recommendations in matters of zoning changes, variances, special usc; permits, parcel maps, subdivision maps and other related matters. REQUIREMENTS To be considered for appointment, persons must be registered to vote in the City of South San Francisco. Applicants should also be motivated to serve the public and have sufficient time available to devote to day or evening meetings and the requisite preparation. Submission of an application pursuant to the process set forth below and appearance before the City Council for a public interview at a Special Meeting on the evening of June 18th is also required. APPLICATION PROCEDURES Applications maybe retrieved by the following methods: 1) Contact the Office of the City Clerk: Krista Martinelli-Larson South San Franc;isco City Clerk City Hall 400 Grand Avenue South San Franc;isco, CA 94080 Tel: (650) 877-8518 Fax: (650) 829-15641 e-mail: kvista.martinell-larson(a).ssf.net. or 2) Download a copy of the application at: ~k'W'W.SSf net APPLICATIONS MUST BE RECEIVED IN THE OFFICE OF THE CITY CLERK BY FRIDAY, JUNE 12th AT 3:00 P.M. Dated: June 1, 2009 /S:/ Krista Martinelli-Larson City Clerk 2 I~~ ~i~l Jl llVl l l~ 4 o n H ~ J O c~LIFOR~~~ BOARDS and COMMISSIONS TERM EXPIRATIONS & VACANCIES NOTICE NOTICE is hereby given of a vacancy on the South San Francisco Housing Authority as follows: Housing Authority: Orie (1) Tenant Commissioner seat became available due to a Commissioner's resignation. Time remaining on term: present through 3/31/2011. AGENCY RESPONSIBILITIES & MEETING TIMES The Housing Authority meets on the second Monday of each month at 6:00 p.m., at 350 C Street in South San Francisco. Tennant Commissioners are appointed to two (2) year terms and must be renting their living space in the property governed by the Authority. The Authority approves the awarding of bids for any work to be done in the Authority (e.g., painting, tree trimming, and landscape maintenance), changes to all policies, lease agreements, and contracts. REQUIREMENTS To be considered for appointment, persons must be renting their living space in the property governed by the Authority. Pursuant to California Health and Safety Code Section 34270, the commissioner shall be over 62 years of age if the authority has tenants of such age. Applicants should also be motivated to serve the public and have sufficient time available to devote to day or evening meetings and the requisite preparation. Submission of an application pursuant to the process set forth below and appearance before the City Council for a public interview at a Special Meeting on June 18th is also required. 3 APPLICATION PROCEDURES Applications maybe retrieved by the following methods: 1) Contact the Office of the City Clerk: Krista Martinelli-Larson South San Francisco City Clerk City Hall 400 Grand Avenue South San Francisco, CA 94080 Tel: (650) 877-8.518 Fax: (650) 829-6641 e-mail: krista.m~~rti.nelli-larson(cr~ssf.xlet or 2) Download a copy of the application at: ww~v.ssf.net APPLICATIONS FOR THE; POSITION ADVERTISED HEREIN MUST BE RECEIVED IN THE OFFI(:E OF THE CITY CLERK BY FRIDAY, JUNE 12, 2009 AT 3:00 P.M. Dated: June 3, 2009 Krista Martinelli-Larson City Clerk, City of South San Francisco 4 o H V c'~LIFOR~IA to rt ego DATE: June 18, 2009 TO: Honorable Mayor and City Council FROM: Barry M. Nagel, City Manager and Steven T. Mattas, City Attorney SUBJECT: RESOLUTIONS APPROVING (1) REVISIONS TO AMENDED AND RESTATED OYS']CER POINT MARINA FERRY TERMINAL LEASE AND LICENSE AGREEMENT WITH THE SAN MATED COUNTY HARBOR DISTRICT AND THE BAY AREA WATER EMERGENCY TRANSPORTATION AUTHORITY, AND (2) A THREE PARTY AGREEMENT REGARDING DISTRIBUTION AND USE OF SAN MATED COUNTY MEASURE A FUNDS FOR THE FERRY TERMINAL AND ;SERVICE. RECOMMENDATION It is recommended that the City Council adopt (1) a Resolution approving the revised Amended and Restated Ground Lease and License Agreement for the ferry terminal, and (2) a Resolution approving the Three Party Agreement Regarding Distribution and Use of San Mateo County Measure A Funds for Ferry Service. BACKGROUND/DISCUSSION: A. Amended and Restated Lease The City owns the Oyster Point Marina. Pursuant to the Joint Powers Agreement between the City and the San Mateo County Harbor District ("District"), the District is authorized to negotiate and enter into leases with private and public entities for the improvement of the Oyster Point Marina ("Marina"). The former San. Francisco Bay Water Transit Authority ("WTA") approached the District to lease a portion of the Marina for operation of a ferry terminal. On December 12, 2007, the City Council adopted a resolution approving the original lease ("Original Lease") for the construction and operation of the Oyster Point Ferry Terminal with the District and the WTA. On January 1, 2008, the W'TA ceased to exist. The San Francisco Bay Water Emergency Transportation Authority (WETA) is its successor entity. WETA, the District, and the City To: Honorable Mayor and City Council Date: June 18, 2009 Re: Resolutions Approving Revised Oyster Point Marina Ferry Terminal Lease and Three Party Funding Agreement negotiated additional terms, which the City Council approved at its special meeting on December 22, 2008 ("Amended and Restated Lease"). The Amended and Restated Lease required the consent of the Department of Boating and Waterways ("DBW"), which is receiving the rent ~~that is due the District, in order to reduce an outstanding loan balance owed by the District to DBW. DBW requested a number of changes to the Amended and Restated Lease. Following a lengthy period of negotiations, delayed at times by the State's budget crisis, the parties have prepared the proposed final amendment to the Agreement approved in December 2008. The City and Harbor :District have approved the changes and we believe DBW will provide its final approval of the terms ~-rior to the City Council meeting. In summary, if approved, the revised Amended and Restated Ground Lease and License would: ^ Add a 5% default interest rate for late payment. ^ Delete a provision for immedi;~te termination of the lease should WETA be unable to obtain a building permit from the City. ^ Add DBW as a beneficiary of :numerous Amended and Restated Lease provisions and standard protections including entitlement to receive copies of environmental reports, indemnification from WETA and the District, notice of takings provisions, insurance requirements, exculpation, estoppel certificates, integration clauses, late charges, waiver, remedies, performancE; on behalf of the tenant, surrender of premises, and warranties and representations. ^ State that the District is responsible for payments to DBW on its marina loan balance. ^ Provide that the Amended and Restated. Lease shall terminate if WETA does not pay rent by December 31, 2009. Prior to payment of rent, WETA may terminate the Amended and Restated Lease on 15 days' notice. ^ Require WETA to meet all applicable insurance requirements under the Funding Agreement. ^ State that DBW takes the posil;ion that its lien rights continue if and when the City succeeds as landlord under the Amended and Restated Lease. ^ Provide that required consents shall not be unreasonably withheld. ^ Provide DBW with reasonable notice of future proposed amendments. ^ Provide that City's failure to make a required one-time payment to the District shall constitute a default. The Amended Lease included in the packet is presented in redline format to show all changes that have been made to the 2008 version previously approved by the City Council. In addition, WETA, the District, and the City contemplate executing and recording a Memorandum of Lease, a copy of which is included in the attachments. To: Honorable Mayor and City Council Date: June 18, 2009 Re: Resolutions Approving Revised Oyster Point Marina Ferry Terminal Lease and Three Party Funding Agreement B. Three Party Funding Agreement; Regarding Distribution and Use of Measure A Funds for Ferry Service in South San Francisco The Three Party Funding Agreement is an agreement that will regulate and guide the payment and use of $15,000,000 in Measure A funds for the ferry terminal. The Three Party Funding Agreement provides that the funds would be paid as reimbursement to WETA for construction costs for the ferry terminal. The funds would be paid o:n a quarterly basis over an eighteen month time period. The earliest the Measure A funds could be; available under the agreement is June 30, 2009. The City's obligations under the agreement are as follows: ^ Serve as the Project Sponsor for the Project; and, ^ Upon receipt of WETA's business plan (addressing rider ship, marketing and an operations plan) and prior to requesting the initial reimbursement of funds, submit the business plan to the Transportation Authority; and ^ Upon receipt from WETA, submit the documentation showing that WETA has a commitment of funds that allow for full funding of South San Francisco Ferry Terminal Project; and ^ Monitor to confirm that WETA submits monthly progress reports during the construction phase and quarterly progress reports during the post-construction phase; and, ^ Monitor to confirm that WETA is making good faith and vigilant efforts to start and complete construction pursuant to the agreed upon schedule; and, ^ Take reasonable actions (which do not include any requirement for the City to provide any additional funding) to confirm that WETA will operate scheduled ferry service in South San Francisco for a minimum of five years; and, ^ Take reasonable action to make sure WETA will maintain the channels and ferry terminal infrastructure in South San Francisco for the term of the lease for use of the terminal during an emergency:; and, ^ Take reason action to make sure WETA gives priority to transporting first responders during an emergency. The Third Party Agreement, in Section II and III also set forth the specific obligations of WETA and Transportation Authority. WETA's obligations are similar to those imposed on the City but require WETA to actually satisfy the obligation (i.e., WETA is required to prepare the business plan, provide the monitoring reports, etc.) FINANCIAL IMPACT As noted, the Amended and Restated Lease obligates the City to pay to the District a single lump sum payment of $1.34 million to compensate the District for costs directly incurred in connection with the Oyster Point Ferry Terminal project. On December 22, 2008 the City Council amended the budget to appropriate those funds. In addition, staff will incur processing costs to receive, review To: Honorable Mayor and City Council Date: June 18, 2009 Re: Resolutions Approving Revised Oyster Point Marina Ferry Terminal Lease and Three Party Funding Agreement and submit the reports required pursuant to the Three Party Agreement to the Transportation Authority. CONCLUSION It is recommended that the City Council adopt resolutions approving (1) the revised Amended and Restated Oyster Point Marina Ferry Terminal Ground Lease and License with the San Francisco Bay Water Emergency Transportation Authority and the San Mateo County Harbor District, (2) execution of a Memorandum of Lease, and (3) the Three Party Funding Agreement related to use of Measure A funds for ferry service. By: ( ~ - arry M. Nagel City Manager 4~ By: Ste e T. Matt City Attorney Attachments: Resolutions Exhibit A, Amended and Restated Ground Lease (Redline) Exhibit B, Memorandum of Lease Exhibit C, Three Party Funding Agreement 1246405.1 RESOLUTION NO. C1TY COUNCIL, C1TY GF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPRO`J1AIG TI-IE AMENDED AND RESTATED OYSTER PO~ivT MARINA FERRY TERMINAL LEASE AGl`~EMENT WITH THE SAN Iv1ATE0 COUNTY HARBOR DISTRICT AND THE SAN FRANCISCO B.AY WATER EMERGENCY TRA.NSPORTATIGN AUTHORITY AND AUTI-iORIZING EXECUTIGiv AND F~ECOI?1?ATION OF MEMORANDUM OF LEASE WHEREAS, the City awns the real property and water area known as Oyster Paint ;v~arina ("ivlarina"}; and WHEREAS, ;., I9?7, the San Mateo C eurity Harbor r?istnet ("Harbor District") entered into a Saint Powers %~gree:nent with tho City to control and operate the Marina; at:d WHEREAS, the San Francisco Bay Water Transit Authority {"WTA ") desires to lease from the Harbor District a portion of the Marina known as the Oyster Point Ferry Terminal ("Ferry Terminal"); and. WHEREAS, at a regular meeting on Decem'er 12, 20Q7, the City Council authorized the execution of the Ground Lease and License {"Original Lease"} for the Oyster Point Fet-ry Terminal with the Harbor District and the WTA, conferring upon the WTA rights over the Ferry Terminal for ferry service operations and improvements installation up to 15 feet above ground level for fifty-five years; and WHEREAS, on January l , 20Q8, Ehe WT~A ceased to exist and the San Francisco Bay Area Water Emergency Transportation Authority (WETA) became its successor entity; and WI-IEREAS, at a specia] meeting on December 22, 20Q8, the City Council authorized the execution of an amended and restated Original Lease; and WHEREAS, -since that authorization the parties have negotiated additional terms at the request of the Department of Boating and Waterways, which is required to consent to the amended and restated Original Lease; and WHEREAS, the parties seek to execute the amended and restated Original Lease containing such additional terms and to execute and record a Memorandum of Lease. 1246391.1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council does hereby: 1. Approve the Amended and Restated Ground Lease and License by and between the City of South San Francisco, the San Mateo County I-iarbor District, and the San Francisco Say Water Emergency Transportation Authority, substantially in the form set forth in Exhibit A, attached hereto, but subject to rzvision as deemed appropriate by the City Attorney; 2, Authorize the City Manager to sign ai;d execute, on behalf of the City, the Amended and Restated Ground Lease, substantially in the form a5 set forth in Exhibit A, attached :hereto, but subject to revision as deemed appropriate by the City Attorney; ar~d 3, Authorize the City Manager to sign, execute and record, on be alf of the City, the I~Iernorandurn of Lease, substantially in the form as set forth i,l Exhibit ~, attached hereto, but suhject to revision as deemed appropriate by the City Attor,:ey. * ~ I hereby certify that the foregoing Resolution was regularly introduced. and adopted by th e City Council of the City of South San Francisco ar_ ? :Hooting held cn the day of _, 20G~ by the followi::g vote: AYES: NOES: ABSTAIN: ABSENT; ATTEST: City Clerk !246391.1 .~ Exhibit A .Aimended and Restated Ground Lcase Exhibit B :`~Ic:norandum of LPasc 1246391.1 AM1~NDED AND RESTATED GROUND LEASE AND LICENSE This Amended and Restated Ground Lease and License ("Lease") is made and entered info as of this day of amber--X995;_ , 2002, by and between San Mateo County Harbor District ("Landlord"), having its principal place of Business at 400 Oyster 1'oirit Blvd_ Suite 300 South San Francisco, CA 940$0, the City of South San Francisco ("City"), having its principal place of business at d00 Grand Avcnuc South San Francisco, CA 94040, ?rd San Francisco Bay Area Water Emerge ncy Transportation AutlYOrity, ("Tenant"),having its principal place of business at Pier 9, Suite l l 1, Sar. Francisco, CA 941 ] 1 with references to the following facts and objectives: RFCiTALS !~!~l-lEl? EAS, the City is tl:,:, owner and Landlcrd is the operator of il',ose certain parcels of reai pEUporty and water areas situated in the County of San Mateo, State of California and more com~tionly known as Oyster Point MarinalPark ~"Marina"}, the legal. description of `~jl;icll is a.±±ached hereto as Exhibit A. The Marina is cor~troil~d and operated by Landlord pursuant to a Joint Powers Agreement executed by and behveen Landlord and tl~e City in October-1977, which is in furl force anal effect for a period of forty-nine {49) years from November 1 1, ] 977_ i'iic City desires to be bound by the relevant provisions of this Lease pursuant to the Joint Powers Agreer.;ent with Landlord and as sacccssorto Landlord upon expiration of the Joint Powers Agreement. V1~1-JEREAS, Tenant desires to lease from Landlord and Landlord agrees to lease to "!'enant a portion of the Marina, more particularly described in Exhibit A attached lierelo and by this reference made a part hereof for the sole purpose of constructing and operating the Oyster Point Ferry Terminal ("Terminal"} {more particularly described in Exhibit B attached hereto and incorporated by reference herein) pursuant to the Provisions sta#ed ire this Lease_ WHEREAS, Landlord grants to Tenant, subject to all of the terms, covenants, and conditions of this Lease, the exclusive right to construct and operate tho Terminal {including removal of existing docks 9 and 10 and dredging activities within the leased Premises}, land common carrier ferry vessels for tl~e purposes of passenger embarkation and debarkation, use fifty {50} vehicle parking spaces, and refuel ferry vessels at the Terminal located behween the Oyster Point Harbor Master's office and Dock ] 1 of the Marina, conditioned upon the Terminal not including any signs which exceed a total of forty {40} feet in height and Tenant not using any vehicle parking space or area controlled and operated by Landlord tivithout prior tivritten permission from Landlord_ WHEREAS, other than the warranties set forth in Paragraph 7 of this Lease, Tenant acknowledges that Landlord has made no representations, express or implied, to Tenant regarding suitability for Tenant's purposes or tiie condition of the property, including representations regarding bottom sediments and coning. WHEREAS, Landlord, City and the San Francisco Bay Area Water Transit Authority (the "Original Tenant") previously executed a Ground Lease and License dated as ofDecembcr 28, 2007 (tl~e "Original Lease"}. WHEREAS, Tenant is the successor entity to the Original Tenant pursuant to the terms of Senate Bill 97b {2007-04 Session), codified at Cal. Gov't Code Sec. GG540 et seg., ~~~hich further provides that Original Tenant "shall transfer the title and ol~~nership of all property within its control and ownership to" Tenant. WHEREAS, Landlord, City and Tenant uosire to amond wnd restate the Original ,case in its Cnt1r~ ty. T:ow, thci-cforc, for and in consideration of the Promises and of the mutual obligations, agreements, and ret;:-osentations and warranties herein contained, the parties do hereby ad ee as follows: 1 _ TERMS AID DEFINITIOItiIS N.s used in this Lease, tl~e ioilotiving words and phrases have the follo,~inb meanings: Alr_eration: any addition or ctiangP to, or rnodi ication of, tl~e Premises or demolition and construction ofnQw Improvements m=ade by'I'enant. Approvals: those permissions required bylaw or regulation prior to, or during, the construction and operation of the proposc-d Tcrriinal. Cites: the City of South San Francisco. Commencement ~Datc: the date upon which Tenant receives its certificate of occupancy or functional equivalent. Damage: injury, deterioration, destruction, or loss to a person or property; Damage includes death. Damages: a monetary compensation nor indemnity that can be recovered by any Person who has suffered Damage to his Person, property, or rights through another's act or omission. Default: any condition or event which constitutes or which, after notice or lapse of time, or both would constitute an Event of Default. Default Rate: 5°/n of amount dueLin addition to amount dueLf'Qr every thirty day~J~YI71ent_i$. in Default. y - -- Effective Date: Date of execution of the Lease by all parties hereto. Jr 1/x iration: the coming to an end of the time specified in the Lease as its duration, including any Extension 1 enn. Facility: shall mean and refer to tl-e Terminal andlor passenger loading and unloading; area on land and/or parking spaces that, subject to the terms and conditions hereof, are to be constructed and operated by Tenant on the Premises. Good Condition: the good physical condition of the Premises and each. portion thereof. "In Good Condition" means in good order and repair, clean, broom clean, free of Tratiiii and accuroulatcd trasl., and fully operative. ' I:azardous iVIaterial: any hazardous ar toxic substance:, r~,ateriai or waste that is or becor;os re~ulatcd ~y any local boven~mcnt authority, the Slate of California or the United 4tates Gv.-ernmer2t. Impositions: al3 taxes and assessmPrtµ d~;o dur.'ng the Lease Term. Irnrrovements: ail buildings (including tl~e Facility, pilings, ,teats, dock areas, i~xtures, sidewalks, curbs, gutters, paved areas, structures, signs, water wclIs, water supply systems, sewage systems, waste water systems, fencing, utility systcrns, parking area improvements, service and trash area improvements, landsc?ping, lighting, exterior fountains, sculptures, flags, ba~iners or Historic artifacts, or any other impr;~vements now or hereafter constructed or maintained on the Premises or any alteration or additions thereto, except for Tenant's Personal Property. Insurance Re~uiremerts: all terms ofany insurance policy covering or applicable to the ]'remises or any part thereof, all requirements of the issuer of any such policy, and all orders, rules, regulations and other requirements of the National Board of Fire Undcnvriters (or any other body exercising similar functions) applicable to or affecting the Premises or any alteration or part thereof or any use or condition of the Premises or any part thereof: Landlord: San Mateo County Harbor District, constituted pursuant to the .feint Powers Agreement, effective November I i, 1977, recorded on October 15, 1984, as Recorder's Serial No_ 54111746, San Mateo County Official Records, and as amended from time to time. "Landlord" shall also mean the City, when it becomes t}ic successor to the interest of San Mateo County I-Iarbor District upon the expiration of said Joint Powers Agreement. Law: any judicial decision, statute, constitution, ordinance, resolution, rebulation, rule, administrative order, or other requirement ofany municipal, county, state, federal or other government agency or authority having jurisdiction of+er the parties or the Premises, in effect either at the time of execution of the lease or at any time during the Lease Term, including without ]imitation, any regulation or order of aquasi-official entity or body.. Lease: this Lease. ~c Leal Requirements: all taws, statutes, codes, acts, ordinances, orders, judgments, decrees, injunctions, rules, regulations, permits, licenses, authorizations, directions and require~ncnts of alI goven~mcnts, departments, commissions, boards, courts, authorities, agencies, offteials and officers, foreseen or unforeseen, ordinary or extraordinary, which now or at any time hereafter maybe applicable to tl~e Premises or any part thereon or any of the adjoining sidewalks, curbs, streets or ways, or ny use or condition of the Premises or any part thereon. Lice„se: The exclusive right to land common carrier Ferry vessels solely for the purpose o f refueling ~lnc~' passenger embarkation and debarkation ai the oyster Point Ferry Te.~rninaI, whiell license is incorporated by rnfere~~ce anu is a part of this lease. Iti;aintcnance: that replacement, rep~~intin~, and cleaning, and such labor and materials as are rcauired, to keep the Facility and arry associated Ia ndscaping healthy, safe, functional and aesthetically pleasing and in compliance tivith all Legal Keq~.,irements imposed by the City. Person,: any indi~,ridual, corporation, association, partnership, joint venture, crganizalion, or any atl;cr huslness entlty, or a governmental nr political unit ar anency. Premises: as defined in the Recitals, heiein, and including aI1 improvements constructed by tl;e T enant thereon during the Lease Terns. Protect: developmer.±, construction, and operation of the Terminal and all related facilities and appurtenances. Provision: any Lease te.:m, agreement, covenant, condition, clause, qualifieatian, restriction, reservation, or other stipulation in tl~e Lease that defines or othenvise controls, establishes or limits the performance required or permitted by either party. Rent: All charges payable by Tenant to Landlord. Restoration: the reconstruction, rehabilitation, and repairs necessary to return destroyed portions of the Premises and other property to substantially the same physical condition as they tivere before the Destruction_ Tenant's Personal Prot~erty: the equipment, signs, furniture, furnishings, merchandise, and moveable property placed in the Premises by the Tenant which have not become fixtures. Termination: the ending of the Lease Term for any reason before Expiration. Terminal: the Oyster Point Ferry Tern~.inal and all land and water area, structures and athcr improvements thereto that are included in Exhibit B of this Lease. Unavoidable Delays: delays due to strikes, acts of Gad, governmental restrictions, enemy action, riot, civil commotion, fire, unavoidable casualty or any other causes beyond the control ol~ Landlord or Tenant, as the case maybe; provided, however, that no delay may be deemed unavoidable if Landlord would b~ in danger of incurring any civil or criminal liability for Tenant's failure to perform any act required by this Lease. In the event of a delay which would qualify as an Unavoidable Delay as defined herein but for the danger of tl~e Landlord incurring civil liability, such delay shall be decrned to be an Unavoidable Delay if Tenant agrees in writing to indemnify Landlord and hold it harmless from and against any liability, damage, cost, expense, claim or cause of action, including withhout limitation, reasonable attorney's fees incurred by Landlord as a result of such delay. Unavoidable Delays shall not include delays resulting Jrom either (a) Tenant's inability to obtain sufficient funds or firm Prancing commitments to complete construction or {b) inability of Tenant to obtain a building permit issued by the City-as-pra~id~ ~ --S-~fl~iS-~a~p. 2. ~~GREE1ulENT TQ LEASr 2_i Effpct ol'Original Lease. Tenant, Landlord and City agree ~T that this Lea..,., completely amends and restates the entirety of the Qriginal I_easc, which sha[I be of ;,o further force and effect as of the date that all signatories to this Lease oxecute the Lease. 2.2. Premises Leased. Upon and subject to the conditions and limitations set forth below, Landlard leases to Tenant, and Tenant leases from Landlord, tlic Premises, together-with all rights-of=way or rights of use servitudes, licenses, tenements, hereditaments, appurtenances and casements now cr hereafter belonging or pertaining to any of the Premises. However, this i,easo confers no rights with regard to the subsurface of the Premises mare [ban fifteen { 15} feet below ground level, except to the ex±ent necessary to instal] pilings or other Support far the Improvements, nor does it confer rights to airspace above the roof of the Facility other than air space rights for signs which maybe placed upon the roof of the Facility, provided that the "total height of the Facility including the signs, shall not exceed forty {4d) feet. The parties hereto agree that said letting and hiring is upon and subject to the terms, covenants and conditions herein set forth and Tenant covenants as a material part of the consideration for this Lease to keep and perform each and all its terms, covenants and conditions. Landlord shall take no action with respect to its reserved subsurface rights that would endanger or impair the Improvements or interfere with the activities taking place an the Premises. The City hereby consents to the Lease as pursuant to the Joint Potivers Agreement with Landlord and as successor to Landlord upon expiration of the Joint Powers Agreement. 2.2.1, Purpose of Lease and Related Services. The ultimate purpose of the Lease for the benefit of the public is the complete and continuous use of the Facilities. All facilities and services sha[1 be made available to tl~e public without any illegal discrimination as defined by California and/or Federal law. The immediate purpase of this Lease is the development of the Premises for construction, operations and Maintenance of the Terminal. It is agreed that the ultimate and immediate purposes are consistent and compatible. Accordingly, Tenant covenants and agrees to operate said Premises fully and continuously to accomplish said purpose consistent with sound business practice and subject to the terms of this Lease. 2.2.2. Cooperation Among Tenam~. Tenant shall cooperate with all other tenants of Landlord tivhe will be operating enterprises in the vicinity of the Premises, and shall conduct its operations se as to avoid interference with the operations of other tenants. Landlord may, but is not required to, resolve any difference or eoniliet which may arise between Tenant and other tenants operating enterprises in the vicinity of the Premises. If the operations of Tenant are impaired because of ar_~y acts or omissions of such other tena;~is, Tenant shall have no claim acainst Landlord on that account. 2.3. Lease "1^erm. The ter,, of the Lease (the "Luse Term") sl~ail comme; ice on the Commencement Date and expire at r::idnight on the same day fifty-five (SS) ye~;rs subsoauent thereto, subject to any options to extend. Promptly following commenccrr~ent of the Lease "1'erlri, Landlord, Tenant and the City shall execute an amendment confinrt~ing the Commcnce:;:er:t and Expiration L?aics of file Lease, which shall be recorded if r_I'iis lease or a tncmorandum of lease has been recorded. i3oh~ritistanding that the Cor.:mencemcnt irate occurs after execution of this Leave, this Lease shall be in full force and effect from a„d after execution of this Lease by all parties hereto. 2.3. - Rent Payment_ Tenant agrees that Rent in the amount of Three Killion Six ~ Iundred Sixty Ti~ousand Dollars ($3,tina,aaa;j ("Rent''} shall be owed to Landlord in one lump sum, payable by Tenant. The parties contemplate that the Rent payircnt will be :Wade by Tenant using State Proposition 113 funds available to the Tenant through_ the State Office of l-lomeland Security. Tenant will work closely ~wit'n Landlord to expedite pµymcnt of Rent in full as soon after execution of this Lease as possible, working within the regulations, requirements and restrictions of the funding source antt administering agency. Tenant shah make payrriert of the Rent directly to the Department of Boating and V~aten~+ays: ("DBW"} on or ~iefore_December 31. zoo~~ which sum shall be fully applied by t'~° r1nr.,,-f.-.,°rt-tDBW only to reduce Landlord's outstanding loan balance._In ,he e~rcnt the pavment of Rent..i$.not made on or before Decern er 1 2 phis Lease ~u11 automaticallyterminate and_be ofno turth_er force and effect, witb~ut the need for further action~~any_of the Parties or DB17V. Nc~hvithstanding the IQregping,, Tenant shall have t)~e ri =ht at_anY time prior to the date Rent_has been nail to terminate this lease upon fif}een (I53 days' prior written notice [p Landlord, City~cL I~BW_ [n addition to the Rent payment required herein, City shall pay to Landlord a single lump sum payment of One Million Three I-Iundred Forty Thousand Dollars (~1,34a,aoQ) ("Costs") to compensate Landlord for casts directly incurred by Landlord in connection with the Terminal project. This payment of Costs to Landlord by City shall not be governed by tl~e procedure set forth in the paragraph above and shall be paid by the City directly to Landlord. 2.3.2 Right of Entry. During the period commencing upon the Effective Date and continuing through the Commencement Date, Tenant shall have a revocable license to enter the Premises for the purpose of conducting studies, investigations and construction of the Facilities. Such license shall be revocable only in the event of a Default 6y Tenant beyond notice and the expiration of any applicable grace period set forth in this Lease. Notwithstanding dle foregoing, Tenant's right of entry shall not include any construction activities until Rent has been paid under the tcrrns of paragraph 2.3.1 Herein. Turing this period Landlord shall not use the Premises in a manner which results in an increase in construction costs of the Facilities or interferes with the progress of Tenant's construction of the Facilities. Tenon! shall have no vested or possessory interest in the Premises during this period except for its right and title to ;he improvements it constructs thereon. During this period, Tenant shall maintain insurance coverage as provided elsewhere in tilts Lease. 2.4. Tenant's First Right to IVe~otiate. If Landlord daSiras to continue iPasing the Premises follo«Jing the Expiration of the term of this Lease, Landlord shall »etify T ena~-~t in writing (`Landlord's NotiUcation") of such desire a! least 13Q days but not more than one year prior to the Expiration of the term. Landlord and Tenant will thereafter meet to negotiate in good faith the terms and conditions of a new (ease. if within ninety (9Q) days after T enant racoives Landlord's Notification, Tenant and Landlord are unable to agree or. terms for a new Lewsc, then 1 andlord shall be permitted to enter into negatiatior,s with any third party for lease of the Premises. 1.4.1. Ten-ant's Right :f First Refusal,. In addir-ion to "tenant's other rights as set forth elsewhere in this Lease, during the term of this Lease and for a period of six (6} months foIlowi» g its Expiration, in any instance in which Landlord makes an offer to a third party to ]ease the Premises, receives an offer from a third party to lease the Premises or negotiates a written lease with a third party to lease the Premises (subject and subordinate to Tenant's prior rights under this Lease so long as this Lease is in effect), Landlord shall, before accepting any such offer or entering into any written lease with a third party for the Premises, give Tenant written notice of all the terms and conditions of said offer or written ]ease and Tenant shall have sixty (b01 days from the date of Landlord's native to give Landlord written native that Tenant elects to enter into a written lease of the Premises upon the terms and conditions set fortes in Landlord's notice. If Tenant does not elect to accept the terms and conditions ofthc written Lease set forth in Landlord's notice, Landlord shall have a period of six (6} months in tivhic}~ to enter into a tivritten lease wiU~ said third party on said terms and conditions: provided however, that in the event of any change in the terms and conditions from those set forth in Landlord's notice, Landlord shall be required to give Tenant a new.written notice of tl~e new terms and conditions and Tenant shall have anotl~cr sixty (60) day period in ~vl~ich to notify Landlord that Tenant accepts tl~e new terms and conditions. 2.3• t$t7bt~~-~~p ern-~°3~rrrt. T4'T ' t'l~itirtrti~a~~~c+ ~.j~~er~rt .,awv,.}_~f ,..Y, I~~ta_~~~}t~ ~~~+Vt~i~~pifdmnr~ln nc~ ~~j~~pr~ ~n l~ r~~r~~o Q ~}~£ }~raJ onc~A ~1 ~~~ tnrrn tYl /1}~ irnm° >~~.~-r~'rrr tcrzlm rn~-~-~rrn c~,~iz'~lt~V I-~ -E~#~Q"~s$-~h e~9~3fn~t-~er-obi' :'u~uizr~pnT in r-i=l-tv-~-i-v ed-2fl ~ Ldel-Ever-~~-E?f~-we~r}i-~pteyy~. 1 £~i-~n1~et}-tC-e-B~~'ti'a~each nnrl• r+~t~j~ ~V~7,~aA.-i or~ ~i•fim ~fc- rt~i"~TCiSI .[!7-~}rl V~R~i~. ~~•~tZ7C[TG-VfrJ~~ . e~-^{~~rin~E:ai-ierren ar-dies-her-ote-a~l~i 1-y; -~-p aw-1ed~~~-paragraph-? .3 ci©e~net-pr-e~de~a-n-opo~}-e~3ded-~al~t~t°~=-mm~iio kc' }ted-te-the ~p `rtly-lim 1~ o;,.,.,..,,~~~,-,,.~ .v}-3er-~-T-o„~.,t ;.- .,~,?o~ .,fter-expcznd~rrg-rensorrablo~c.~-ffsFts-~o-ebtn-i~~-,a-bni-4~t3g per-~it~--I-H-tie-~e~ert-E-that-t!~e-~i~fa;~~ .,, ;,.~,.o ., ~~.U-;,,n .,~~,,;~ ~-„~t}~e~er,,,;,,.,- „f;,~,;,, ,.~~o-}mar e~he~ate-o~d~ Lea~so;-any-3~-ei}t-payments-made-t~-clat~ty-if.L->vu-rrFoll-hy-tl~e~-ei~trEj` n~~-vir : r; ', i te~~~N en 1-E?#-1~ ~H#-E~rrbe t, •, rrrc~ri vii ems"., ,, r -, •, `~ • •, ,1l e~eFl t-l-~j~~3re~i~i-n-g-f'~} f~3 (~'H~--fed suEl}-l--pay~e!3ic-~r~~nd-i ~ e~~t-inn-a3ne-Tenant-revi-do--to-L-and-lfir~.~.~. 4 End of Lease Term. y ~:-1-2.x.1_ Surrender. Upon the Expiration or other Ter<r,ination of the Lease Tenn, Tenant shall iuit and surrender to Landlord, or Landlord's successor in interest, the Premises including all Improvements in Good Condition, except for [a) ordinary wear and tear occurring after the last necessary Maintenance made by Tenant, or [b] destruction to the Premises covere:.- by Paragraphs 13.1 and 13.2. A~ly da,r~agc or deterioration of tl~c Premises shad not bo deemed ordinary wear and tear if the same could have hccn prevented by l;ofld Maintenance practices. Tenant hereby ag; ees to execute all documents as Landlord o_r D13~V may reasonably deem necessary to evidence any Termination of the Lease Terse. if Tenant fails to surrender the Premises to Landlord on Expiration or Termination of the Lease Term as required by this Paragraph, Tenant sl~-al1 indemnify, dofend and l:o!d Landlord nd ~~W harmless from all Dorn;~ges result?rg frorn Tenant's failure to surrender the Pre-r_ises, including but not limited to and without limitation, claims made by a succeeding tenant resulting lrorn Tenant's failure to surrender the Premises, and Tenant waives all claims against Landlord for any Damage to Tenant resulting from Landlord's retention or disposition of any lmprovcments, Alterations, or Tenant's Personal Property. Tenant shall be liable to Landlord for all costs incurred by Landlord for storing, removing, or disposing of any I-r-provements, /alterations, or Tenant's Personal Property. in addition, Tenant shall be liUblo to Landlord for any Damages Landlord may sustain as a result of such failure to surrender and shall pay all costs and attorney's fees as may be i~ccessary to evict Tenant. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereon, shall not tivork a merger, and shall, at the option of Landlord, operate as an assignment to it of any or all subleases or subtenancies. ?:22.5.2 Tenant's Personal Property. Tenant shall remove all of Tenant's Personal Property, and shall perform all Restoration made necessary by the removal of such Personal Property, at ar prior to the Expiration or Termination of the Lease Tcrm. Landlord may remove any of the Tenant's Personal Property that Tenant has not removed from the Premises on Expiration or Termination of the Lease Term and store Tenant's Personal Property in a public warehouse or elsewhere for such a period of time as maybe required by applicable Law, after tivhicl~ time Landlord may retain or dispose of all such property in accordance with applicable Law. Tenant waives a!1 claims against Landlord for any Damage to 'Tenant resulting from Landlord's retention or disposition of any Tenant's Personal Property as provided herein. Tenant shall be liable to Landlord for Landlord's costs for storing, removing and disposing of any Tenant's Personal Property_ ~~i-32_5.3 Ownership of Improvements. Upon Expiration or "fennination of this Lease, title to such immovable Improvements, including alI buildings, structures, Fixtures and facilities constructed or placed within the leased Premises by Tenant, which are or have been within the Lease Term attached or fastened to the ground, deck, floor or walls of a structure, such that they cannot be removed without damage to tllc Pre~rises, shall become the property of Landlord or Landlord's successor in interest at the Expiration of the Lease or upon earlier Termination thereof, and Tenant shall execute such instruments as may be reasonably recluircd by Landlord confirming Landlord's title to the improvements located on the Premises. ?~2.C1. ?-loldin~ Over. Unless the Term of tho Lease is extended by the parties, any holding over by Tenant after the Expiration or Termination of this Lease, and any acceptarc~ of Rent by Landlord thereafter, shall not constitute a renewal or give Tenant any rights hereunder iri the Premises, Axcept with the prior ~:vritten consent of Landlord, :*.~hich consent may be withheld for any reasor, whatsoever. An y holding over by Tenant rafter the Expiration or Tern~ination of this Lease, with the written consent ofLandiord, shall be construed to be a lenar:cy from month to month, and shall be terminable upon thirty {30) days written notice ~7i`:'en by tither Landlord or ;'enant. All the terms, covenants, conditions, and Provisions of this Lease shall apply to any such r;:onth-to-mo.-lth tenancy. Lundiord shall respond to rec;uest io holdover within a reasonable tEI:1C. IfTer;ant holds over after the Expiration. or Termination of this Lease :vihout the express written consent of Landlord, Tenant Shall be Dome a tenant at set"±oraneP only, and othor~.vise subject to tl~e terms, covenants, conditions, and Provisions herein specified, so far as applicable. During any holding over period as described by this provision, Tcr!ant shall pay to Landlord a monthly Rent equal to 125% of the monthly pro-rated amount of the one-time, lump-sum payment made by T cnant, adjusted for inflation as measured by the percent change in the U. S. Department of Labor, Bureau of Labor Statistics Consumer Price )ndex for San Francisco-Oakland-San Jose (] 982-1984 base) behveen the Effective Date of this Lease and the commencement of any holding over period. Nothing in this Paragraph ?~2~ shall be construed as consent by Landlor d to any holding over by Tenant. 3_ IMPOSITIONS Due to its status as a government entity, Tenant is not subject to real property taxation. Tenant agrees to provide such information as may be recluestcd by Landlord to enable Landlord to comply with any reporting requirements of appropriate taxing authorities under applicable La~.v_ 4. U"I'ILITIES, SERVICES AND ASSESSMENTS Tenant shall make all arrangements for and pay to the appropriate supplier for all utilities and services directly furnished to or used. by it including, without limitation, gas, water, electricity, sewer, and telephone services and for all connection charges for such utilities and services. Tenant, including any future successors and assigns, shall also pay for any applicable taxes and assessments levied upon machines, appliances or property owned or used by Tenant. 1 ~- Landlord s1~aIl not be liable in Damages or otherwise far any failure or intcmrption o!~(i) any utility service furnished to the Premises, or (ii) the heating, ventilating, and air conditioning systems. 5. USE, LIMITATIOI4S ON USE 5.1. Use. Tenant shall use the Pr~;rnises for constructing and operating tttie Terminal as set forth in Exhibit B attached hereto and incorporated by reference herein. Upon completion of construction, the Terrnina! shall be used for vessels operating for the public convenience and necessity in point to point sailings on specil;c Service P\outes as dofined in paragraph 5.2.I l below at the Terminal landing docks as set forth in the landing schedule attached hereto and incorporated by reference herein as Exhibit {'. A Service Ronte as t1s~d Herein is tlefircd as a continuous trip between two or more points, at (east one of which is the Terminal. At Tenant's request, Landlord shall allocate up icy I=1fty (50) vehicle parking spaces Ior use by Tenant in an area designated ;y Landlord convenien± to the eternises. Tenant's use of the Premises for the use provided for herein shall not impede the public's use of the existi. g public bicycle/ncd~strian trail to and along the Marina and Sari rrancisco Bay sl~oreiine. 5.2. Limitations on Use. Tenant's use of the Premises shall be in ac;,ordance witlZ tiers Paragraph 5.2. 5.2.1. Prohibited Uscs. The parties hereto agree that the following acts, occurrences or conduct by Tenant on or from the Premises are strictly prohibited: a} Engaging in, assisting, aiding or abetting in any act that constitutes a violation of any Law. b) Tenant's operations hereunder shall not obstruct vessel or vehicle traffic on Marina waters or [and area, including use of Landlord's guest clock by Landlord and guest vessels. 5.2.2. Compliance with Legal Requirements. Tenant at Tenant's sole cost and expense, promptly shall comply tivith all Laws of any municipal, county, state or federal government or the departments, courts, commissions, boards and offccrs thereof, or other governmental or regulatory authority with jurisdiction over the Tenant and the Terminal Premises or any Portion thereof, including without limitation, the Landlord (collectively, "Laws") relating to or affecting the condition, use or occupancy of the Terminal Premises in effect either at the time of execution of this Lease or which may hereafter be in effect at any time during the term hereof, whether or not the same arc now contemplated by the parties. Tenant's compliance shall include compliance with all provisions and conditions of the Federal Americans with Disabilities Act. Tenant shall obtain and pay for ail licenses and permits required for Tenant's construction and occupancy and use of the Premises. Compliance with all Laws shall include compliance with all requirements of each regulatory agency that has jurisdiction over the Premises including but not limited to t-be -Bepartm~en,- f uoutiz ~_--~~~'.~^~~DBW and the San Francisco Bay Conservation and Development Commission ("$CDC";}. Tenant's compliance ~vitli BCDC recluirernents shall include but not be limited to installation of improvements for public access at Tenant's sole cost ~3 as required by BCDC as shown in Exhibit D, attached hereto and incorporated by reference herein. 5.2.3. Waste: Nuisance. Tenant shall not cause, maintain or permit any unreasonable annoyance or nuisance in, on, or about the Promises or on any Landlord property or Marina waters_ 'Tenant shall not commit or suffer to be committed any waste in or about the Premises and shall keep the Premises in first class repair and maintain the same in Good Condition during tt~,e Lease Term. 5.2.4 I-lazardous Material_ Tenant shall nai cause o_r permit any Hazardous Material to be brought upon, kept, or used in or about the Premises oxcept to the extent that such Hazardous IVlaturial is necessary o. useful to Tenant's business and wilt be used, Rcpt and stored in a manner that complies with all L.a~~vs, including environmental regulations, relating to such Hazardous Material. Ter,ar:t agrees to indemnify, defend and hold Landlord-an~I, Lity anc! DBW_ harn~less from any liabilities,':osses, claims, T)amages, penalties, or other expenses resulting from or arising out ofactions broug}-it by third parties against Landlord in cornectioie with Tenant's uso, storage, transportation, release, or disposal of Hazardous Material o., or about the Premises by Tenant. Tenant'; obligations under this paragraph shall include, but not be limited to, the effects of a:~y contamination or injury to P erso~~, property or the environment created or suffered by T enant. Tenant is responsible for investigation, removal, retnediation, restoration, and/or / abatement of Hazardous Material it introduces o,~to the Premises. 'I cnant shall not have any responsibility with respect to Hazardo~ss Material existing in, on or under the Premises as of the Effcctave Date. 5.2.4. I Re uirements for Handlin Nei!her Tenant nor its Agents or lnvilees, shall use, generate, prpCCSS, produce, package, treat, store, emit, discharge or dispose (collectively, "Handle"} in, on or about the Premises any Hazardous Materials without the prior written consent of Landlord, which consent shall not be unreasonably withheld so long as Tenant demonstrates to Landlord's reasonable satisfaction that such ]-lazardous Material is necessary to Tenant's business, will be Handled in a manner which strictly complies tivith all laws and.will not materially increase the risk of fire or other casualty to the Premises. Noh~+ithstandi,lg the foregoing, Tenant may Handle on the Premises janitorial or office supplies or materials in such limited amounts as are customarily used for general office and janitorial purposes so Iong as such Handling is at all times in full compliance with all Laws. 5.2.4.2 Tenant Responsibility, Subject to the restrictions set forth in Paragraph 5.2.4.1, Tenant shall Handle all Hazardous Materials discovered on the Premises during the Term of this Lease or introduced on the Premises by Tenant, its Agents or Invitees, in compliance tivith all La~~rs. Tenant shall not be responsible for the safe handling of Hazardous Materials introduced on the Premises during the term of this Lease by City, Landlord or their Agents. Tenant shall protect its employees and the general public in accordance with all Laves. Landlord. may from time to time request, and Tenant shall be obligated to provide, information reasonably adequate far Landlord to determine that any and all Hazardous Materials are being Handled in a manner tivhich complies with all Laws. Landlord shall have the right to inspect the Promises for Hazardous Materials at reasonable times, pursuant to its rights of entry provided for hereunder. 1'-~ 5.2.4.3 Requirement to Remove. Prior to Termination of this Lease, Tcnai~t, at its sole cost and expense, shall investigate, re-nove, rcmcdiate, and/or abate any and aII Hazardous Materials introduced in, on, under or about the Premises by Tenant, its Agents or Invitees. Further, Tenant, at its sole cost and expense, shall remove any Hazardous Material discovered on the Premises during the Term of this Lease which is required to be removed by any go~emmental agency, including Landlord; provided, however, that Tenant shall not be obligated to remove any Hazardous iJiaterial introduced onto the Premises during or before the Term of this Lease by the City, Landlord or their Agents. 5.2.5 Fueling of Common Carrier Fer-,~ Vessels. Tenant shall have ilie right to fuel co~nrnon ca=-ricr ferry vessels that r~perate tc and ;'or.: the Terminal that is described in Exhibit B of this Lease subject to the following terms and conditions: 5.2.5.1 Fueling of vessels by Tenant and any contractor employed by Tenant shall be done only ~vhcn said vessels are docked securely at the Terminal_ 5.2.5.2 rucltng sha}l be dons ~y Tenant and~or any contractor emplocd by Tenant only by means of'a truck and hose, with the lose co;~nected to a standpipe or similar installation that shall be installed by'l,enant at Tenant's sole cost al a location such t]~at the fueling laose shall not cross i1-~e public bicycleipedestrian trail r.~nning along the Marina shoreline; or shall 'de placed underneath the said public trail so as not to cause a safety hazard fur trail ;:secs. 5.2.5.3 Tenant andlor any contractor employed by Tenant shall obtain, keep current, and provide to Landlord at Landlord's request copies of all permits and approvals n~ccssary to allow fueling of the ferry vessels at the Leased Premises. 5.2.5.4 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current form a Safety Plan to govern fueling operations and provide a copy of said Safety Pian to Landlord. 5.2.5.5 Tenant and/or any contractor employed by Tenant shall prepare and maintain in current form a Fuel Spill Containment Plan ;and provide a copy of said Contairunent Plan to Landlord. 5.2.5.6 Tenant and/or any contractor employed by Tenant shall obtain and maintain all insurance, naming Landlord as Additional Insured, covering vessel fueling operations as needed in addition to all other insurance required by this Lease. 5.2.5.7 When carrying out vessel fueling operations, Tenant and/or any contractor employed by TenanE shall take particular care to comply with 1'aragraplts 5.2.4 and 5.2.8(d) of this Lease. 5_Z.b Cancellation of Insurance. Tenant shall strictly observe all Insurance Requirerncnts and shall not do or permit to be done anyti~ing that will cause a cancellation of any insurance coverage of the Premises. 1~ 5.2.7 Continuous Operation. Subject to the terms of this Lease, and following completion of the Improvements, Tenant shall continuously and diligently operate the Terminal on t)~c Premises throughout the Lease Term. 5.2.8 Environmental Protection. Tenant shall take all reasonable measures available to: a} Avoid any pollution of the atmosphere or littering of land or water caused by or originating in, on, or about Tenants' facilities. b) Keep the noise level on the leased Premises to a minimum in compliance with applicable ordinances of the City so that Persons in the general neighborhood will be able to comfortably enjoy other facilities leased by Landlord in the vicinity of the leased Prci~niscs. c) Kecp the. lights on the Leased Premises from adversely affecting the operation or other use of boats in the Marina. d) Prevent all poll~.~tants, including petroleum products of uny nature, from being discharged from- the rrernises into tl:o harbor waters. e) lvlitigate exhaust emissions and other operating impact on mar~neiaquatic life, water quality, and shorelines. 5.2.9 Supervision.by,Tcnant. Tenant inay in its sole discretion employ its own personnel or a management contractor experienced and skilled in the management of operations as they are contemplated under this Lease. This management contractor or Tenant's o~vn personnel shall give attention to efficient supervision of Lease operations, using its best skill, and shall keep employed, at all times, a competent supervisor and any necessary assistants. Tenant's personnel or the management contractor's supervisor or assistant shall be present at all times ~vl~en ferry vessels are loading or unloading passengers and when ferry vessels are being refueled or serviced, and all directions given by the management company's supervisors shall be as binding as if given by Tenant. 5.2.10 Protection of Leased Premises_ Tenant shall maintain its facilities in such a manner as to protect Landlord's property from damage, injury, loss, or liability arising from rainfall, and other action of the elements, excepting such as may be caused by fault or negligence of officers, agents, employees or contractors of Landlord. 5.2.11 Scrvicc Routes. Ferry vessels operated by Tenant shall operate on those Service lloutes to and from the Terminal identified in Exhibit C and incorporated herein. ASSESSMENT OF P1ZEMISES U.l Title RcporVSurvey/Soils Stabilit Test. Tenant nay, at its sole option, obtain at its sole cost and expense; (i) a preliminary title report (PTR} on the Premises from a title company of j~ Landlord's choice and if Tenant so elects {ii) a survey certified by a licensed civil engineer which accurately locates and describes, among other things, the boundary lines of the Premises, topographical elevations of the premises, all rights of way, restrictions, easements, encroachments and utility lines. Tenant at its sole cost and expense, if required by any Law, shall obtain a soil investigation report certified by a licensed civil engineer which discloses, among other things, results of tests will? respect to the soil and subsoil on the Premises, whether the soil is suitable to support the Improvements contemplated herein, and if not suitable, what measures are necessary to render it suitable and what type or foundation support tivill be required_ Tenant shall within thirty (30) days of receipt provide copies of same to landlord. Within sixty {ti0} days of receipt of the a'novo the 't'enant s halt submit to Landlord a statement of requirements for clearing of any title or correcting any physical defects on the Premises. Y~itl~in sixty (6C} days after receipt of said statement, Landlord shall elect either to correct such defects i ; a manner reasonably acceptable to Tenant or n~f# con-ect such defects, in which case Tenant ;nay waive the d~f~cts not corrected or this Leas:; shall terminate and each party sl;all be released from its obligations {except for those obligations incurred prior to such Termination}under this Lease. Landlord shall commence such corrertion within sixty (GO) d ;ys and shall proceed with all due diligence to complete same. Tenant shall be entitled to receive, at Tenant's expense, a co~mr,itrr-~o;~t for AL"1'A title insurance insuring Tenant's leasehold interest in the Premises in the amount of hive million dollars ($2,000,000) a_n_d Landlord shall Dori=f.ot the physical detects it has agreed to corre:.t, all at Landlord's sole cost and expense, within sixty {~0} days after Landlord's election to correct such defects. 6.2 Fnvirenmental Site Assess!r-ent {Phase II). Tenant may, at its sole option, or shall, if required by any applicable governmental agency, obtain a Phase lI Limited Site Charaelerization Study ("Phase II"). Upon co--npletion of the Phase II study, if Hazardous Nlateria] is discovered on the Pren-,ises that had been placed on the Premises prior to the Effective Date of this Lease and it becorrmcs necessary to remove such waste, Landlord will elect to perform and pay for the clean up in a reasonable time. If the parties are in disagreement as to whom should bear the cost of the clean up, they will meet and confer and attempt to reach agreement. b.3 Reports in Possession of Landlord. Landlord shall provide legible copies to Tenant and, ~pn request, DBW~.of the following: {a} existing title reports and surveys on tl~e Premises; (b} reports regarding elevations and cross sections to be used; {c) governmental reports from any and all agencies; {d} any al;reemcnts with State, Federal, the City or county agencies, and any studies, reports and {e} agreements with otl~er contiguous and non-contiguous land owners, {t) conditions, covenants and restrictions (CC&R's}; {g} drawings, specifications and engineering; reports, including, but not limited to, Phase I and Phase II environmental reports, title reports, aerials, demographic reports, drainage reports, marketing studies and zoning documents pertaining to the real property which is to be leased to Tenant and which Landlord has in its Possession or tivhich are in the Possession of the City. 7_ WARRANTIES QF LANDLtJRD ~~" 7. I Power and Authorit .Landlord represents and warrants to Tenant that as of the Effective 17ate (a) Landlord has legal power anal full authority to enter into, 6e bound by, and comply with the terns of this Lease, and (b} Landlord has obtained all necessary authorizations, consents and approvals required far the execution, delivery and performance of this Lease and the consummation of the transaction contemplated herein. ?.2 Taxes and Encurnbrarces. Landlord represents and warrants to Tenant that as of the Effective Daie (i) all taxes on the Premises, except current taxes not delinquent, have been paid; and--{ii) the Premises Ore free and clear ot'all tcnar.~ies or other rights of third parties, except for the oivncrship rights ot`the City n~ 'he c Ila era; and/or lien ri~ts.of I)B1~j, whether oral or tivritten, ~t {iii} Landlord is able, to and will place Tenant. in the peaceful and undisturbed possession on the Premises on said Effective Datc;~ancl ;~ L and re resents anc]_tivarrants to i enant that. Landlord_is res~si_;~Ic fc~r ~a~nents On_the i?R~?!~-marina_IVan al nee owed_to UBW. 7.3 Cant~icts. The execution and delivery of this Lease, the oonsum:::atior: of the transaction contemplated hereby, and the perfonmance of or compliance ~=.lith the terms, conditions and covenants of this Lease will not ~:oIate or coniict with or result in tine brea4h of any of the teens, conditions or provisions or any agreement, udicial ordor or instrument to which Landlord is a party or by which Landlord ar any of its assets are bound_ 7.4 Legal Proceedings to ©~vnership. Landlord represents, to the best of Landlord's knowledge and belief, that no laws~.;it;s or legal proceedings are pending or threatened regarding the ownership, use, or possession of the property, ar any part thereof; except as stated in this Lease. Landlord agrees to indemnify and hold Tenant harmless from any and ail claims, Damages,}udgments, liens, tests or expenses arising from any such lawsuits or legal proceedings which are currently known to exist. 7.S Condemnation. No condemnation proceedings are pending with _respect to the real property to be leased or any part thereof, or interest therein, and, to the best of Landlord's knowledge and belief, none are contemplated. 7.6 Violations. Except as indicated in reports filed with the City by the civil engineering firm CH2M I-Iill, there is not located on, in, about, ar under the Premises to be Ieased any Hazardous Material of which Landlord is aware a,nd there are no past or present investigations, administrative proceedings, threatened or pending, alleging non-compliance with orviolation of any "Law or Regulation" relating to the Premises or to any required environmental permits by Landlord nor any third party_ As used herein, "Law or Regulation" means and includes the Comprehensive Environmental Response and Liability Act ("CERCLA" or the Federal Super Fund Act) as amended by the Super Fund Amendments and Reauthorization Act of i 986 ("SARA") and any other laws, ordinance or regulation relating to Hazardous Materials. Landlord will provide to Tenant all reports and investigations commissioned by Landlord or the City and relating to Hazardous Materials on the property that Landlord has in its possession_ To the best of Landlord's knowledge, there are no new, nor have there aver been, any above-ground or underground storage tanks in or under the Premises to be leased. k~ 7.7 Hazardous Material or Contamination. Any Hazardous Material or Contamination as defined by any governmental agency having jurisdiction over the Premises, found during or subsequent to the construction of the Project which is not a result of any act of Tenant or caused by Tenant or any agents employee, contractor, subtenant, licensee or contractor of Tenant shall be the responsibility of the City to mitt{;ate to the extent required by a govzrnmenta} agency with regulatory jurisdiction over tic Premises, provided ti~at as long as the District remains Landlord, it shall've responsible for remediation to the extent that such Hazardous Material or contamination remediation costs are related to the repair and maintenance of the Leachate system ~orstructed pursuant to SeLton 15, subsection (r} of the Joint Powers Agreement dated July 6, l 977; provided, however, that improverr~ent work beyond the scope of said ~.eachate system constructed pursuant to the Joi-:t Powers Agreement shall be the responsibility of the City. 'vVithout limiting the generality of th., foregoing, Landlord or the City, as owner of the property, as tl~c case ~ ;ay be, agrees to indemnify, hold harmless and defend Tenant from anv and all claims, losses, liabilities, demands, costs and fees (including attorney's fees} which ^:ay relate to or arase out of said t-la7ardous .~vlaterial or Contamination which is not a result of a„y act, omission or negligence of Tenant or caused by Tenant, or any agent, employee, contractor, subtenant, licensee or contractor of T~onant, and shall ircludc the duty to remediatc and mitigate (including, bat not limited to, satisfying any other governmental agencies or administrative proceedings) and any i-lazardous ylaterial or contamination problem concerning t};e Leachate system or the production of methane which may result from Tenant's construction of the Improvements using normal construction methods (e.g. excavation, pile driving) so long as Tenant is not neglige ~t and does nol introduce any Hazardous IVlaterials or contamination to the Premises. 8. IM PROVEjv1EN'1'S 8.1 Tenant's Obligation to Provide Schematic Drawings. Landlord and Tenant intend to work cooperatively throughout the design process to ensure that the Facility ultimately constructed by Tenant meets tivith Landlord's approval while satisfying the requirements of the City and other relevant permitting bodies. Landlord has in its possession prior to the Effective Date of this Lease thirty-five percent x(35%) terminal design products from Tenant. Notwithstanding Landlord's possession of these design products, Tenant shall deliver to Landlord the design schematic drawings it intends to submit for approval by the City and all other permitting bodies. Landlord acknowledges that the design schematic drawings to be submitted by Tenant for permits will reflect the same design and appearance agreed to by Landlord during the 35% terminal de:;ign phase. Landlord shall have the right to approve or request modifcations to said drawings consistent with permitting and building code requirements; such approval shall not be unreasonably withheld or delayed. Tenant shall inform Landlord in writing within thirty {3d) days after receiving permits or approvals from the City and all other relevant permitting bodies. Tenant hereby agrees to construct the Facility on the Premises at its own cost, insubstantial accordance tivith the scl3cmatic drawings submitted to Landlord under the process described in this paragraph. l~ 8.1.1 Tenant shall use its commercially reasonable efforts to submit to the City all necessary application materials, plans, dra~.vings, and specifications for discretionary land use approvals permitting construction of the Terminal no later than three hundred sixty five (365) days following receipt of written notice from Landlord of approval of the final schematic drawings. 8.l .~ Tenant shall commence constriction in an expeditious manner following receipt of all required p~rrnits by the City anti all agencies having jurisdiction over the Prer~jises for the construction of the Facility. 82 imnroveincnt Plans. AI] Improvements and Alterations constructed by Tenant shall meet all requirements of all government be}dies or agencies laving jurisdiction over such lmprovemei:ts or A Iterations, and Tenant shall not ma;<o, or cause or su#fer to be made, any Improvements or A Iterations to the t remises until Te,-~art has procured all regulatory approvals required to be obtain~;d. R_3.! Facility Plans. 'vVhen approval of the building plans for t e Facilities has been obtained from the City, Tenant shall deliver hvo (2) sets ofsaid pla~~s to Landlord. 8.3.2 ,4~reernents with Government >/ntities. Landlord agrees that Tenant may enter into any contract, easement or agreement vrith the City, San Mateo County, the State of California or any other governmental agency or body o:r public utility tivitli reference to ~!tilily connections, street improvements, easel: eats or drainage; facilities that arc necessary in order for Tenant to use the L.;ased Premises in accordance with Paragraph 5.1 ofthis Lease, but notwithstanding the above, Tenant shall notify Landlord of its intent to enter into any such contract, easement, or agreement prior to executing them, and shall assume full finar~cial responsibility for any expenditures or other obligations Landlord maybe required to fulfill in order that the Provisions of this Paragraph be carried out. 8.3.3 Prior Notice. Tenant shall provide ten (10) days written notice to Landlord prior to Tenant's first entry on the Premises of the Tenant, its agents, employees, contractors or subcontractors for tl~e purpose of commencing construction; said notice shall specify the nature of the work to be performed. 8.3.E Landlord's Non-responsibility; N _i h r Landlord assu~es~enor DBW assume a liability or responsibility for any defect in any structure by its approval of plans and specifications. 8.3.5 Notice of Non-Responsibility. Landlord may post upon the leased Premises a notice of non-responsibility_ 8.3.6 Notice of Completion. Upon completion of construction of any Improvements or Alterations, Tenant shall timely file or cause to be filed a notice of completion. 8.3.7 Construction. 'Tenant shall be responsible for the construction of Improvements at its sole cost and expense. ~C, 8.3.8 Contractors' Compliance with Law. Any contractor selected by Tenant to construct Improvements on the Premises must comply with all relevant Laws and rcguIations, including t_he payment of prevailing ~vages to workers employed by the Contractor. 8.4 - Underground Conditions and Grading. Landlord makes no covenants or warranties regarding the condition of the soil or subsoil or any other condition of the Premises. 8.5 Tenant's Duty to Obtain Building Permits. Tenant shall obtain at its sole cost and expense, all permits, approvals, certificates and licLnses under applicable zoning, building and safety and land use Laws and regulations as may be required by ary and alt agencies having jurisdiction over the ]'remises for the construction of the Facilit~f as oonteinplate:I herein_ 8.~ Ownership of Improvements :During the Lease'ferm. Other than upon Expiration or Termination ofthis Lease in accorda~.c~ with the terms herein, Landlord steal] have no right, title, or interest during the Lease Term in any I, rirovement or f?~lte cation herealker oo~nstru,:tPd by Tenant on the Premises. 3.7 Final Approved "As Built" Plans. -fenant shall provide Landlord hvo (2} complete sets of Frnal approved "as built" plans within ninety (9Ct} days after completion of the Improvements to which they relate, 8.8 Builder's Risk and Other Insurance. Tenant shall provide to Landlord: {i) certificates of insurance evidencing Spacial Farm coverage for "builder's risk", (ii) evidence of workers' compensation insurance covering all Persons en?ployed in connection with the construction of the Improvements and Alterations and with respect to whom death or bodily injur}~ claims could be asserted against Landlord or the Premises, and (iii} evidence that Tenant has paid or caused to be paid all premiums for coverage described in this paragraph 8.8 sul~icient to assure maintenance of all insurance requirccl herein during the anticipated course of the construction. Tenant shall maintain, keep in force, and pay all Premiums required for all insurance mentioned herein at all times during which construction work is in progress. 8.9 Performance Bond. Tenant shall provide Landlord with evidence of a performance bond obtained by its general contractor for the construction of the Facility in amount recommended by a licensed civil engineer that will be sufficient to demolish the Facility and return the Premises to the condition it was in on the Effective Date_ Tenant covenants that it tivill return the Premises to the condition it was in on the Effective bate in the event it fails to complete construction of the Facilities. 9. ALTERATIOI~IS AND ADDITIONS 9.1 General. If there is no Event of Default, at the time, under this Lease, Tenant at its sole cost and expense may make reasonable Alterations to the Premises during the term of this Lease after construction of tl~e Facility without the prior ~vritten consent of the Landlord; provided, however, that any such Alterations (a} shall not substantially change the exterior character of the a~ Improvements or the gross area of the Improvements, (b) shall not effect any change in the use of the Premises, (c) are completed in a timely manner, in a good and workmanlike manner and in compliance with all Legal Requirements and Insurance Requirements, and (d) arc promptly and fully paid for by Tenant. WIthlIl tlllrty (30) days after completion of any such /1lterations, Tenant shall furnish Landlord with as-built drawings showing such Alterations. Notice shall be given to Landlord prior to the commencement of any alterations to afford Landlord the opportunity to poll a notice ofnon-responsibility_ ~1.ny Alteration that would materially alter the use of the Premises or the exterior of any Improvement must Crst be approved by Landlord in writing, whici~ consent shall not be unreasonably withheld ar delayed. 9.2 Cornpliancc with Laws. Tcnant shall make at;y arld all Alterations or repairs on the PrelnisES that maybe required by all Laws from time to time ap plicable thereto. All A Iterations and lrnprovel-ncnts permitted under this Paragraph 9.2 shall be accomplished in a good and workmanlike manner; tr conformity 4vith ail Laws, Lego'. 1?equirer:;ents and Insurance iequirements. Upon colmpletion of any such ;vork, Tenant shall supply Landlord "as built" plans. Tenant shall indemnify and held Landlord and City hannlcss from and against all actions, claims and Damages arising by reason of Tenant's failure to comply with the foregoing Provisions. 9.3 Surrender. L'por, Expiration or Termination of this Lease as provided herein, any Alteration made by Tenant under Provisions of this Paragraph 9 shall be deemed an Improvement and the Provisions of Paragraph ?52.5.3 shall govern the right of the parties with respect thereto. ~.4 Landlord's Obli;ations. Landlord shall have no obligation to alter, remodel, improve, repair, decorate or paint the Facility or any part thereof during the Lease Te.7-m_ 9.5 Improvements Part of Realty. All Alterations or Improvements to the Premises made by or on behalf of the Tenant which may not be removed without substantial injury to the Premises shall become part of the realty immecJiately upon completion, shall be otivned by Landlord and shall, at the end of the term hereof, remain in the Premises without compensation to Tenant, unless Landlord first waives its right to the Alterations or Improvements in writing. Notwithstanding the Foregoing, Landlord at its option may require Tenant to remove any Alterations and Improvements at Tenant's sole expense regardless of whether title has or has not vested in Landlord, and regardless of whether consent was, or was not given. Tcnant shall repair any Damage occasioned by such rem~aval at "T'enant's sole cost and expense. 10. CONDITION OF PREMISES, MA1NT1/NANCE 10.1 Existing Conditions. Tenant :has made a thorough inspection of the real property and is familiar theretivith, and has accepted tl~e Premises in an "as is" physical condition_ Neither Landlord rrralces-nenor DT3W make and representation or warranty with respect to the condition of the Premises, includilig 1vitllout limitation, the seismological condition thereof, or their f tness a~ or availability for any particular use;, and Li~ilihei- Landlord n_or DB1~V shall not-be liable for any latent orpate,tt defect therein. - ~- I0.2 Tenant's Maintenance ~bii ations. Tenant sha1I, at all times during the 'form of this Lease after construction of the Facility, at its sole cost and expense, keep the Premises in Good Condition and maintained in good working order, and condition and repair the Premises and all Improvements and Alterations thereon. Tenant small provide routine custodial Maintenance of the Premises including Terminal and any parking area allocated to Tenant by Landlord at Tenant's request, in accordance with tl~e provisions of an operation manual p repared by Tenant and approved Landlor d_ ]tontine ;~9aintenance is defined as alI ordinary housekeeping maintenance of the Premises and egc,ipinent and replacement of supplies [hat arc normally performLd on w day-to-day basis in order to keep the Pre=miser operating in an cffcient, cleat, safe, and Good Condition. Routine Maintenance i ncludcs, but is not limited to: l . Replacing light bulbs as needed where no specialized equiumcnt. is required to do so 2. Regular clowning of the 7'er_minal area, storage spaces, passenger and vehicle cniry/exit lanes, parking areas, regular removal of interior-and exterior graffiti, and daily emptying of trash receptacles and ash trays. 3- Tenant may subcontract f+ar major, overall steam cleaning of the parking facilities, wherein the total facility areas arc steam cleaned with industrial steam cleaning egaipment. Lessee may also subcontract f~yr reduced area stea,n cleaning as needed in specific areas, including but limited io vehicle and pedestrian access areas. Emphasis is placed on the steam cleaning of pedestrian waiting/standing areas and walkways in maintaining the Iirst class standard of custodial Maintenance as called for by Landlord. All work will be done in accordance with Best Management Practices and all applicable laws and regulations_ IV~ither Landlord nor DBW shall-ngt :have any responsibility to perform any Maintenance on the Premises. Neither Landlord ~~r DBV~J shall--,yet be obligated to make any repairs, replacement or renewals of any kind, nature or description whatsoever to the Premises nor to any Improvements or Alterations now or hereafter located thereon. In the evenE that the Tenant, its agent or invitees cause any Damage (excepting ordinary wear and tear) to the Premises, Landlord may repair the same at Tenant's expense and Tenant shall immediately reimburse Landlord therefor. Tenant shall make or cause others to make all repairs, replacements or renewals,lvhether interior or exterior or, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen, necessary or appropriate to maintain the Premises in Good Condition. Tenant shall provide and maintain established standards ofpublic health and cleanliness established by Landlord. In the event Tenant fails to maintain th~c Premises in Good Condition as required by this Paragraph 10, Landlord may give Tenant written notice specifying what actions are required to correct the conditions of the Premises. In tl~e event Tenant fails to initiate such actions as are indicated by Landlord in its notice within thirty (30) days after Tenant's receipt of such notice, or thereafter Tails to diligently proceed to complete such actions, such failure shaI] be deemed an Event of Default within the meaning of Paragraph 1 S and Landlord shall have al] the rights, potivcrs and remedies provided for in this Lease or at Law including the right to enter o,t the ~3 Premises and maintain or cause t11e Maintenance of the Premises as required by this Paragraph l 0. In such event Landlord shall bE: entitled to reimbursement for any reasonable amaunts spent plus a fee often percent (10%) of the cost of the work perfanned which shall be due and payablL fifteen { 15) days after Tenant receives Landlord's statement therefor. In the event Tenant fails to pay such amounts within such fifteen (15) day period, Landlord shall be entitled to interest thereon at the Default Rate from the end of such fifteen (I 5) days until paid_ At least once each quarter, representative{s) of "Conant responsible for supporting and overseeing operations ofthe Terminal shall meet with representatives} of Landlord and inspect the Premises a;,d confer on status of operations and possible impro~rer.:ents. 10.3 Tenant's L~red~gi,-rg f~bli~ations. "]'errant shaii be responsible at its sole cosr_ far r,3aintaininb channel, fairway, and Naming basin depths within the Leased Premises asset forth in Exhibit "A" attached hereto and ineorparatcd by reference herein, to permitted design depths deeper than eight (~) feet by periodic dredging as necessary for tl~e Term of this Lease, except that Landlord shaii be responsible al its sole cost for main,U;ning channel and fainva}~ dcptl~s to Landlord's design depth of eight {$,i f~~t only_ 1 O.T Signat;e Prograrr~. Tenant al;rccs to comply with Landlord's regulations governing signage, and pay costs and operational expense of installing and maintaining signage for the Tc~rninal and directional signage an Marina property. Teo signs, directional, guiding, and other stripes, lines, direction and markings shall be installed or painted in or upon the Premises or removed by Tenant without prior written consent of Landlord. 10.5 'Jse of Premises by %.andlord. Landlord acknowledges that Tenant may be required to suspend use of the Promises from time to lime. Tenant shall nc~tiiy Landlord within a reasonable period of time aver its determination to suspend use ofthe Premises or when the Terminal and/or parking area will not be in use for not less thar, five (5) days. Tenant shall also provide Landlord within a reasonable period of time the approximate date it intends to resume use of the Premises, Terminal or parkinb area. 10.6 Emergency Plan. Tenant shall work with Landlord to complete a detailed emergency plan. Tenant shall instruct all Persons employed by Tenant in the plan and the employees' responsibilities relating to the plan. Copies of the plan shall be pasted in a prominent locatio-~ on the Premises. 2. In the event of any major emergency ar condition (i.e. potiver outage, flooding, fire, natural catastrophe or any other unanticipated condition that would disrupt normal operation of the Terminal or iimperil customer or staff} that may reasonably result in a threat to Persons or property, Tenant shall immediately contact Landlord by telephone and Tenant Manager or Assistant Site Manager shall report to t}~c Tern~inal and rer,~ain until the emergency leas been resolved. if the Landlord cannot be reached, Tenant shall make continued efforts to reach other staff Persons as designated by the Landlord until a ~~ landlord representative has bean notified. Landlord's facility operator is available 24 f ours a day and can be reached by calling the Oyster Point Harbor Master, 650-952-0808; alternatively, Tenant's manager may contact 91 1. 3. Tenant shall immediately erE;ct and maintain such temporary signs, barricades, lights and other devices as may be necessary to wanr people of any dangerous or defective conditions and shall take such actions as may be necessary to reasonably protect people from injury, loss or Damage which might result because of any such condition. 4_ A;~y time a dangerous or defective eon ditian may reasonably be known by Tenant to exist in the Prciniscs or their environs, "Tenant shall immediately tale reasonable necessary protective action. by calk g tlhe Oyster Point M==~rina,~Parl: I-Iarbor Plaster and imr,~ediately notify Landlord 'ay telephone and in :Writing of such condition <<^...d protective action. 10. i Security of Facilities. The security of the 1'rernises shall be the responsibility af'henant. l 1. INDEMNIFICATION ANb EXC~.JLPATION I I.1 Exculpation of Landlord. Landlord shall not be liable to Tenant for any Ddmabe to "fenant o_r to t'enant's properly from any caTwse other than as a direct result of Landlord's negligence or willful and intentional misconduct. l 1.2. lndemnifcation and Exculpation of LartdIord. Tenant shall indemnify and hold Landlord, the City, DRW and their rc~pcetive_elected off vials, agents, officers, directors, contractors and employees (collectively, "Agents") harmless from, and shall defend them against any and all claims, demands, direct or vicarious liabili~, attorney fees, causes of action or judgments, Damage, injury or lass arising directly or indirectly out of (a}any injury to or death of any person, including employees of Tenant, or Damage to or destruction of a~;y property occurring in, on or about the Premises, or any part: thereof, from any cause whatsoever, (b} any Evcn# of Default by Tenant in the observance or performance o1' any of the terms, covenants or conditions of this Lease, (c) the use, occupancy or condition of the Premises or the activities therein by Tenant, its agents, or clients, customers, invitees, guests, members, licensees, and assignees (collectively, "Invitees"} or (d} any release or discharge, or threatened release or discharge, of any substance, waste or material which now or in the future is determined by any state, federal, or local governmental authority to be capable of posing a present or potential risk of injury to health, safety, the environment or property (collectively, "Hazardous Material") caused or allowed by Tenant in, under, on or about the Premises, or into the environment.l'his indemnity shall be enforceable except to the extent that such indemnity is void or otherwise unenforceable under applicable Law in effect on, or- validly retroactive to, the date of this Lease. This indemnity shall exclude claims, liability, damage or loss resulting solely and exclusively from il~e willful misconduct of Landlord-era tl•-e City Qr DBW which is pat contributed to by any act of, or by any omission to perform some duty unposed by La~v or al;reement on, Tenant, its agents ar Invitees. I In addition to Tenant's obligation to indemnify Landlord-ate, City^and DB1N, Tenant specifically acknowledges and agrees that it has ar, immediate and independent obligation to defend Landlord and, City and Dl3W from any claim that actually or potentially falls tivithin this indc~nnification provision, even if the allegations ar~~ or may be groundless, false or fraudulent. Tenant's obligation to defend shall arise at th.e time such claim is tendered to Tenant by Landlord jty and/or Ei~jfDBW and shall continue; at ail times thereafter. The foregoing; obligation to defend shall include without limitation; indemnification frorn attorney's fees, court costs and all other litigation expenses- 7~is indernnifiration by Tenant shall begin from the first ,-notice that any claim or demand is or may be mE~di;,. The provisions of this sec--tionp~r ~~~ shall survive tt;e termination of this Lease with respect to any Damage, destruction, injury or death occurring prior to tl~c termination of this Lease. 11.2.1 Excuioation. T;:naut, as a material part of the consideration to be rendered to Landlord, l;ere?~y waives any and all claims ag;;~inst Landlord, City~BVv and their Agents, rnd agrees to 1~o1d Lar-diord, City,~I7B:w and their Agents harmless [torn any claims for damages to goods, ~~rares, good:vill, ,~rerchandisc, ey;~ip;.,ont, business ipportuni,ios aril persons in, upon or about said Premises for any cause arising at any time, including without limitation ail claims arising from the joint or concurrent ncgliger.ECC of Landlord-or, City ~DBV1% an.d,~or their Agents, but excluding any intenticnally harmfi„1,aets committed solely by Landlord-orz City~r DI3W~as the ease rnay_be. .-- l 1.2.2 Indemnification of Tenant. L.and]ord agrees to indemnify, defend and hold harmless Tenant an_d DBW from and against, all demands, claims, attorneys' fees, causes of action or judgment for injury to person, lass oi:'life, or Damage to property occurring on said Premises arising from Landlord's negligence, willful or intentional misconduct. 12. INSURAI~{CE 12. I Comprehensive General Liability Insurance. Prior to Tenant's entry upon the Premises and in any event throughout the term of this Lease, at Tenant's sole cast and expense, Tenant shall keep or cause to be kept in force;, at all times, for tl~c protection ofLandlord, City. DBW and Tenant and naming Landlord end DBW as Additional ~~t~r~llnsurCdS, Comprehensive General Liability Insurance, includin€; coverage for bodily injury, personal injury and property damage liability arising from the use, occupancy, Maintenance, disuse,..or condition of the Premises and Improvements. The litrtits of liability should be usual and customary to the Tenant's industry, but pat less than one million dollars ($1,000,000) per occurrence, hvo million dollars ($2,000,000) aggregate, bodily injury and property damage including products and completed operations. In addition, excess Iiability in an amount not Iess than five million dollars ($5,000,000) will also be kept in full force and effect. ~'cnant shall r vide DBW with_a w ' en nQti_ce.at least 3p days prior to the canceliati n expiration or chanke in an insurance lie . S~Recified_in this naXagranh. . 12.2 Tenant's Property Insurance. "I'lvoug;hout the term, at Tenant's sole cost and expense, 'T'enant shall keep or cause to be kept insured with property insurance at all times for tl~e protection of Tenant, LenderD$W and Landlord and naming LandIord~d.DBW as Additional ~-tP lr~-s~dll~sureds, all Lnprovements llocated on or appurtenant to the Premises against loss or Damage by fire and such other risks; as are now or hereafter included in the Special Form, va~~dalism and malicious rnischicf. "1'l~c amount of the insurance shall be sufficient to prevent ei~l~era_ ny~f Landlord-or, Tenant-ore City_~r DBW from becoming a coinsurer under the Provisions of the policies, but ir-i no event shall the amount be less t}lan one hundred percent { 100°~°) of the then actuat replacement cast (herein called Full lnsurable Value). Landlord shall not carry any insurance the et~ect of"which tivould be to reduce the protection or payment to ~'enant under any insurance that this; Lease obligates Tenant to carry. If any dispute arises as to whether the amount of insurance co~mpt_ies with the above and said dispute cannot be resolved by agreo.neni, Landlc,d may, not more often than every two (z} years, rey>>est the carrier of the insurance then in fo..... to dotennine t11e Full Insurable Vaiuc as defined in this Provision, and the resulting deterrnir!ation shall be conclusive between the parties for the purpose of this paragraph. "tenant rn-aSl-~i1l~~l.:~,o ,~~~~~1d..°~;f--a~~~ n--~~e~--fee-er-tieth~as~-'Toss rrcc~ vi-tr~r~'~#3d~er~a-r}Fshall al~inoiude tl~l.'-;-rel~l4~},-y~r~~ert~age_~ the-feeDBln~ as a loss payee to the e:rtent of that mortgage int~rest. Tenant shall nrovicle DBW with a written notice at feast 30 dav~; prior ro tlje cancellation exniratioP ~r ~;:a,_,ge ir, an :nsurance ~olic~s~e_cified in this nas:a era ~Ii2 12.3 Employer's Liability and Workers' Compensation Insurance. Tenant, at its sole cost and expense shall, during the Lease Tern, obtain, maintain and keep in full force and er`~ect, Workers' Compensation Insurance as rzquired by Law and Employer's Liability Insurance with limits or liability as required by Lativ, but in no event less than $1,OOa,000 per each accident. 12.4 Additional Insurance. In tl~e event of any significant change in the use of the Premises, Landlord and DBW shall have the ri;~hi, during the Lease Ter„, to require Tenant at its sole cost and expense to obtain, maintain and keep in full force and effect such other insurance with respect to the Premises in such amounts and against such insurable hazards as tivould be reasonable under the circumstances. In_ ~c~ditc~n, Tenant shall rlce_t all insurance requirements an. licable t~itRur uant~_that certain Three Parh~ Agreement Re ardin~Distri~c;tipn and Use of San Mateo County Measure ~1 Funds for Fe~•ry~ervice $eh~veen Sputh San Francisco and ^~ Oakland by_and .between Tenant, City_and_San Mateo County Transnoriation Authority dated as of , za09 12.5 Waiver of Subrogation Right;. The parties release each ather, and their respective authorized representatives, from any claims for Damage to the Premises or to the fixtures, personal property, improvements or alterations ofeitlier District or 't'enant in or on the Premises which are caused by or result from risks insured against under any property insurance policies carried by the parties and in force at the time of~any such Damage, to the extent such claims for damage are paid by such policies. Each party shall cause each property insurance policy obtained by it to provide that the insurance company waives all right of recovery by way ofsubrogalion against the other party and IaRW in connection with any Damage covered by any policy. 1z.6 Other Insurance 1Vlatiers. All the insurance required under this Lease shall: (i) be issued by insurance companies authorized to do business in the State of~California with a current financial rating of at least a» A Class YV or better as rated in the most recent edition of Best's Key Rating Guide; (ii} be issued as a primary policy; (iii) contain an endorsement requiring thirty {30) days written notice from tlic insurance company to ~th_Landlord and DBW before cancellation or material change. Tenant shall nasnc Landlord and_DBW as arradditiona[ h:-s~edinsureds on any and all liability insurance policies. Each insurance policy required hereunder, or a Certif Cate of the policy, shall be deposited with nth_Landlord and D$~:' prior to the; Commencement Date of this Lease and not less than thirty {30) days before expiration of the term of any policy then in force, except that the policy described in paragraph 1 ?.1 or a certif sate thereof shall be delivered to nth Landlord.~nd DB17V_ prior to "t'enant's entry upon the 1'rel~ises. 12.7. Failure to Frocurc _Insurance. If Tenant fr,iis or refuses to procure or to n~airtain insurance required by this Lease or fails or refuses to famish Landlord ~r_D13W with required proof that the insurance has been procured and is in full force and ef~'ect and paid for, Landlord shall have the right, out not the obligation, upon five (5} days written notice to Tenant, to procure and maintain such insurance. The pr emiums paid by l_a dlord shall be chargeable to Tenant and shall bear interest at the legal rate then in e£fccl_in the State of California from the date when file premium is paid by Landlord. 12.8 increase in Amount. Landlord may require Tenant to increase the minimum dollar amounts for insurance required by this Lease, but every such increase shall be reasonable under the circumstances and in no event shall such increases more than double in any ten (l0) year period. If there is any dispute regarding any. increase, landlord and Tenant shall submit this issue to an arbitrator and the matter shall b:~ arbitrated pursuant to Paragraph 29.4 of this Lease. i 2.9 Insurance durin~nstruction. Before Tenant commences making major Alteration to Tenant's Premises and before construction begins, LesseeTen~nt shall obtain appropriate Certificates of Insurance naming ~th_Landlord an DBW as Additional erllnsur from any contractor employed by Tenant to make said alteration and provide moth Landlord_and~I BW with copies of said insurance Certificates. -- ~- 13. DAMAGE OR DESTRUCTION l 3.1 Destruction Due to Risk Covered by Insurance. if a total destruction {the rendering totally unusable of fifty percent (SQ%)~ or more of Tenant's improvements on the Leased Premises), or a partial destruction (less than fifty per cent (50%)) occurs io Tenant-owned improvements, ilie loss is covered by the insurance described in paragraph 12.2, Tenant shall within ninety (90) days thereafter commence and diligently prosecute the repair, restoration, or replacement such that the completed ~arork, which maybe different in design, sha[I be equal in value, quality and use to the condition of the improvements before the event giving rise to the work. 13.2 Destruction Due to Risk Not Covered 6 Insurance. if any of the Tenant-owned improverncnts are damaged or destroyed by any casualty not covered by the insurance Provisions of this Lease and if the leased Premises are hereby rendered unfit for the uses prescribed herein, Tenant shall have the option of cleariing the Iand and returning it as it was at Ehe time of the inception of this Lease, including repairs of Docks 9 and I0, in which event, Tenant may terminate this Lease, or rebuild the structure(s) in such a way that it would be comparable in use and value (but not necessarily dzsign) to the structure{s) which had existed prior to the casualty. 14. TAKING 14.1 Definition_ "Taking" means: (i) the acquisition of the Premises, or a portion thereof, or an interest therein, by any govornmerital power, wl?other tl;rouglz legal proceedings or otherwise, by a condemnor and (ii)'a voluntary sale or transfer of the Premises, o_r a portion thereof or an interest theroin, by Landlord to any condemnor, either under threat of condLmnaton or ~vhiie legal proceedings for conc~ernation are pending. i 4.2 Tenant NoiicC;. Upon receipt by Landlord or Tenant of any notice that taking proceedings are to be instituted the recLivizg parh~ shall imrncdiately notify in writing the other party to tlic Leaso- as weii_hs. DB~J+i. Landlord-~d_ Tenant ar~d DB yV may each f le and prosa;,uiz thc3r respective claims for an award~h.e_cxteni such. claims ~re_othervrise_;~c„nitted_hy law. 14.3 Total Takinu. This Lease shall terminate or, the day of transfer of title or possession to tl~e condemning agency, whichever is, first. 'l'cnant may then present evidence of the worth of remaining use of Ieaseh~~ld impro~den^~ents and fixtures. Landlord shall also present evidence of the value of the land. All sums, including damages and interest, awarded shall be deposited promptly with a mutually agreeable e.scro~v agent and shall be distributed in the following order of priority. The foregoing having been stated, Landlord and Tenant abrce that Tenant may seek separately from the condemning agency i±s Ioss of good will or business opportunity, and said proceeds, if any, shall be kept separate Gild apart from the other condemnation proceeds being deposited into the mutually agreeable escrow account_ First, all real and personal property taxes, if applicable, constituting a lien on the property or the improvements; Second, the balance due under any note secured by a leasehold mortgage to which the fee is not subordinated or other interests of any_lender with rest to. this Lease; Third, the parties shall negotiate an equitable division of the balance of the a~;yard, failing which the allocation sl7ali be determined by arbitration in accordance with Paragraph 29.4 l~ercof. Tl~e arbitrator(s) shall take into account the respective interests of the parties including but not limited to the City's fee interest in the Premises and the bonus value, if any, of Tenant's leascl~old interest. In the event the condcrnning agency is neither City nar Landlord, then the award shall be distributed in the following order of priority: First, all real and personal property taxes constituting a lien on the property or the improvements; ~~ Second, to Landlord and City, collectively, an amount equal to the fair market value of the real property excluding the Improvements, subject to tl~e terms of this Lease; Third, tl~e balance due under any note secured by a leasehold mortgage to which the fee is not subordinated_or other interests._ f amender with resRect to this Lease; ;:ourth, if the fair market value of the in;provements exceeds the amount payabIc to the Ieasehold mortgage as pr ovid~d above, from the balance of the award, if any, such excess amount shall be allocated to Tenant in the proportion that the number of years {including any fraction of a year) of tl~e Term then unexpired burs to ;`;fly-five, and the balance shall be allocated to Landlord and City, collectively; Fifth, the bonus vat»c of this Lease, if any, si~?11_ be divided among the Landlord, City and Tenant. The share of the Tenant shall!, be a portion that the number of years (including any fraction of a year) of i he Term then unexpired bears to fifty-five. The balance shall be awarded to City and Landlord, collec:tive~y; and Sixth, any balance to Landlord and City, collectively. For the purpose of this paragraph, wherever there is reference to a portion ofa condemnation award being paid to Landlord and City, collectively, the amount payable (the "Proceeds") shall be allocated behvicen Landlord and City as follows: There shall be distributed io Landlord an amount equal to the amount of rent Landlord would have received from the Lease for the :number of years ~ancxpired on the Joint Powers Agreement, or any extension thereof to be paid on an annual basis and not to exceed lie condemnation award received collectively by City and Landlord. In the event the parties are unable to agree upon any of the valuations_ required to distribute a condemnation award under this Articlle 14, each party will appoint an appraiser and the two appraisers so appointed shall select a third appraiser and the three appraisers so selected shall make the determination{s) of value. If the appraisers arc unable to agree, the valuation in dispute shall be determined by averaging the three valuations of the appraisers_ Each appraiser shall be MAI-qualified and shall Dave not less than five (5) years' experience in appraising commercial real estate in San Mateo County. 14.4 Partial Taking. (i) In the event of a partial taking leaving the remainder unusable for operation of the Terminal, Tenant many elect to terminate this Lease as of date of transfer of title or possessions in which event tl~e parties shall negotiate an equitable division of the condemnation award. If the parties are unable to agree upon such allocation it shall be determined by arbitration in accordance with Paragraph 29.4 hereto provided that the award shall first go to pay the balance due under any note secured by a leasehold mortgage to which the fee is not subordinated, and the arbitrator{s) shall take into account the respective interests of the parties as provided in Paragrapls 14.3 ;above. If the Tenant does not terminate, compensation shall be as if the remainder is usable. .~ {ii) In the event of a partial taking leaving the remainder usable for operation of the Terminal, this Lease shall remain in full force ;and effect, covering the remaining property_ Tenant must give notice to Landlord of any of the above elections within forty-five {45) days alder tl~e taking occurs. Tenant will C-e deemed to have krio~vledge of the impending acquisition on Tenant's entry into negotiations tivith the taking agency's representatives, on receipt of service of complaint and summons, or order for immediate possession, or on receipt of a letter of inquiry from the Landlord advising "['cnant ~~f the impending acquisition and requesting notice of Tenant's resulting elections and cont;cntions. If such notice is .nail~d but not signed by any authorized agent of Terrint tivithin ten { 10} days of mailing, Tenant shall pay the cost of notifying a Managerhy ;personal service_ Tenant's notice shall contain a clear .and unequivocal statement of the Tenant's election; reasons for this election, Tenant's contention of compensation, and the reasons for these contentions. Time ?s of the essence and the express purpose of the required notice o:'~ection, contentions, and reasons is so the Landlord *nay rely on them in negotiations or litigation with the 'raking agency. Tenant's conten?ions shall not be conclusiv;, as to the amount of compensation, or usability, or fair mar;:et value of ll~e remainder, and any dispute of these issues shall be resolved by arbitration in accordance with Paragraph 29.4 hereof. Tenant's failure to give notice of election, contentions, and reasons shad constitute a waiver of all rights to compensation. 14.5 Restoration.. In the event of a partial taking leaving the remainder usable for operation Tenant shall alter or reconstruct the :hnprovemcnts as necessary to render the operation of the Facility economically viable. Tl~e condemnation award shall be utilized by Tenant for U~is purpose and any balance shall be paid to Landlord. 1 S. NO CLAIMS AGAINST LAl'~iDLORD; IV'0 PARTNERSHIP Nothing contained in this Lease given the Tenant any right, power, or authority to contract for or permit the performance of any Iabor c>r services or the furnishing of any material or other property in such a fashion as would permit tl~e making of any claim against Landlord or its interest in the Premises_ None of the Provisions or agreements herein contained is intended, nor shall the same be deemed or construe+~, to create a partnership between Landlord and Tenant, to make thorn joint ventures, or to make Landlord in any ~vay responsible for the debts or losses of Tenant. I b. INTEGRATED AGREEMENT; MODIFICATION This Lease contains all of the agreements of the parties l~creto with respect to any matter for tivhich Provision is made in this Lease, and no prior a~eement or unders#anding, oral or written, express or implied, pertaining to any swch matter shall be effective for any purpose. No Provisions of this Lease may be amended or added to and no consent or waiver shall be effective 31 except by an instrument in writing signed by the party to be bound by such instrument. The parties acknowledge that all prior agreements, representations and negotiations are deemed superseded by the execution of this Lease to the extent they are not incorporated ]ierein_ Notwithstan~lin~the foregain~„ th.el~arti.es hereto_acknowledge the existence of certain loan documents between Landlord and D:BW~nel excep~fQr~iie pr~v_i.si~n5 of Paragraph 32 herein, npthingli:n t~~i_s Lease=~u~~rsedcs, arncnds or modifies any provision of an~~n ~iscument etween I.an.llord and DBW~in~ludn~ but n.~t..limited_to that_ctirt_air. Settlement ~1~reemeni dated as of , 24G~ and acknowledged by WET~1.r~ I7. TRANSFER OF TI;Ni~i~3T'S~ INTEFCt=:ST' Tenant shall not assi~ or other~ise transfer this Luse or any right or ;rterCSt "ercundcr, or in or to ~.„y of the Improvements, or sublet or lice„se the use of the Premises, except as approved in writing uy Landlord. No oilier assig~rrment or transfer, whether voluntwry or involuntary, by merger or under legal process, through receivership or bankruptcy, or otherwise, and no such subletting or lice?sing shall be valid or effective_ I8. DEFA~JLT A.~`1D REMED>~S 18.1 Events of Default. If one or more of the followi;~g events ("Events of Default"} shall occur, Landlord may exorcise any ofthe-rights and remedies spocifiod in Paragraph 18.2: (a) City fails to pay the one-time lump-sum rent payment as specified in Paragraph ?;?:-1.2.3_I when and as the same becomes due and payable and suet, failure continues for a period of thirty (30) da}rs aflor written notice thereof is delivered to Terra-n€C~ and thereaf~er~ar~tC~ ity, fails to reimburse Landlord pursuant to Paragrapl-i 2.3.1; (b} Tenant fails to comply with any Insurance Requirement, if such failure continues for thirty (30) days after written notice thereof from Landlord to Tenant; (c) Tenant fails to perform or comply with any other term or condition of this Lease and such failure shall continue for sixty (60} days after written notice thereof from Landlord, and Tenant does not, subject to Unavoidable Delays, within such period commence with due diligence; and dispatch the curing of such Default; (d} . Tenant makes a general assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they become due or fifes a petition in bankruptcy, or is adjudged bankrupt or in;>olvent, or accepts or files a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, Law or regulation; andlor (e) Within one hundred tlventy (124) days after the commencement ofany proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or sirr~ilar relief under any present or future statute, Law or regulation, such proceeding i;; not dismissed, or Tenant fails to commence defense of .~ such action and thcrea#Ier continues to prosecute such defense, or, if within one hundred tlventy days (120) days after tl~e appointment without the consent or acquiescence of Tenant, of any Trustee, receiver or liquidate any material part of its assets, such appointment is not vacated, or Tenant fails to commence defense ofsuch action and thereafter continue to prosecute such defense of such action. 18.2 Landlord's Remedies_ Upon any Event of Default Landlord shall have the following remedies: i 3.2.1 Tenant's Right to Possession ivot Terminated. Landlord ?may con time this Lease in full force and effect, and the Lease will continue in effect as Long as Landlord does not terminate Tenant's ribl?t to possession. 18.2.2 Termination ofTenant's Ria~~~t to Possession. Landlord may terminate Tenant's right to possession of tl~e Premises in the ev~,rt of any event of Default as specified ir, Paragraph I $.1 and ihould such event of Default oontinue for sixty (6ij days after receipt of !:~ritter'- notices by Tenant from Landlord it shall be lawful for Landlord to terminate. t}~is Lease and enter upon and ;ake possession of said Premises. i~he Landlord may retain or dispose of the Premises in accordance with applicable Law. 18.2.3 Landlord's Rrght to Cure "T'enant's Default_ Landlord at finy time after the Tenant commits a Default, may cure the Del:aalt at Tenant's cost. if Landlord at any time, by reason of Tenant's Default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due irnmccliately from Tenant to Landlord. i 8.3 Interest on Unpaid Sums. Sums not paid when, due pursuant to paragraph 2.3. ] of tlils Agreement shall bear interest at the Default Rate from the date due until paid. No interest shall accrue or be paid for payments made no later than fifteen (15) days after the due date_ l 8.4 Late Char~~. Late payment by Tenant to Landlord or DBW of any sums due hereunder will cause Landlord or DBW to incur costs not contemplated by this Lease, the exact amount being impractical to fix. When a pa}+ment is not timely made and such failure continues for fifteen (15} business days after writtc;n notice thereof is delivered to Tenant, an additional late charge of five percent (S%} of the amount due will be paid by Tenant to Landlord or DB~V, as the case may be. I8.5 Rie}It of Termination. For and after the date revenue ferry service begins at the Tec~rlinal, in the event "tenant fails to operate ally ferry service to or Isom the Terminal for a continuous period of two (2) years or more, ~vhic;h failure is not due to l`Jn~l~e~av ida Ic Delays, the City shall have the right to terminate this Lease on thirty (30) days' advance written notice. If City terminates the Lease pursuant to this F~ectienParaerayh 18.5, Tenant shall have a continuing license to use the Premises for the pu~rpase of providing emergency services and operations to and from the Facility during tl~e entirety of the Lease Term. For the purposes of this seo~ienPara~;raph l 8.5, "Unavoidabt~~ Delay" shall include failure to obtain financing for ~~ operation of t+ierthe Terminal. Landlord hereby recognizes anti accepts the City's right of termination pursuant to this Sec.~iflnl'ara~ 18.5. 19. SURVIVAL OF TENANT'S OBLIGATIONS; LANDLORD'S EQUITABLE RELIEF No Expiration or Termination of this Lei se or by operation of Law or otherwise, shall relieve Tenant of its liabilities and obligations hereunder which have then accrued, which shall survive such Expiration or Termination, including, without limitation tl~e right of Landlord and Qf DBW fo; irdemnificalion against iiabiIit-y for personal injuries or for property Damage occurring prior to tiie later of ti) Tcrrnination of this Lease or tii) Tenant's vacation of tine Prern~ise;, our shall anything in this Lease be dec:ned to affect the right of Landlord to equitable relief where suoh relief is appropriate. Z0. NO t~ A I V ER BY LANDLOI~D The failure of the Landlord ar DB`v'J 'to seek redress for violation of, or to insist on strict performance ~ol; any term or Provision of thhis Lcasc shall not b~ deemed a waiver of such violation cr su'osoquont act wllicl~ would hove originally constituted a violation from having all the force and effect of an criginri violation. No delay or omission in the exercise or any !-fight or remedy of Landlord upon any Default by Tenant shall itnr~air such a right or remedy or be construed as a waiver. No act or conduct of Landlord, including, without limitation, the acceptance of keys to the Premises, shall constitute an acceptance of the surrender of t_h_e Premises by Tenant before the Expiration or Termination of this Lease. Only a written notice from Landlord to Tenant shall constitute acceptance of the str.rendcr of the Premises and accomplish a Termination of this Lease. Landlord's consent to or approval of any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent act by Tenant. D$W'_s consent to qr ~P}~rpval cf any Zct by Tenant. requiring DBt~l's eonseni or ap~rn_v_al shall net be deemed to tivaive or render unncccss~rv DBW's ~;,~n$cnt to or a~r~v_al ~anv subser~uent act Tenant. Any waiver by Landlord or DBW..of any Default must be in writing and shall not be a waiver of any other Default concerning the same or any other Provision of the Lease. 21. REMEDIES CUMULATIVE Each right, power and remedy of Landlord_and_DBVd provided for in this Lease now or hereai~er existing at Law or in equity or by statute or otherwise shall be cumuIativc and concurrent and shall be in addition to every other rigrit, power or remedy provided for in this Lease. 22. ENTRY BY LANDLORD 22.1 Entry for Inspection. Landlord and its respective authorized representatives shall }gave the right to enter the Premises without noiliee at any time during T~ormal business hours and subject to Tenant's normal security requirements and, if required, accompanied at ail times by a representative of Tenant for the purpose of inspecting the same or For the purpose of doing any work hereunder, necessitated by an Event of Default, and to take all such action thereon as may ~' be necessary or appropriate for any such purpose {but nothing herei~l contained in this Lease shall create or imply any duty on the part of Landlord to imake any such inspection or do any such work). 22.2 Emergenc~EntrY. Landlord Enay enter the Premises at any time, subject to government security requirements, without noticf;, in the event of a.: emergency. Landlord shall have the right to use any and all means that Landlorrd may deem proper in such an emergency i„ order to obtain entry to the Premises_ Entry to the Premises by any of said means, or otherwise, shall not under any circumst nccs be construed or dc,emed to be a forcible or unlawful entry into, or a detainer of the 1'remis;s, or an eviction of Lease from the Prerises cr any 1'oriion of them. 22.3 No Liability. Land1_nrd shall .not be liable in any rna.v~er, ar,d Tenant hereby tivaives any claim for damages, for any inconveniierice, disturbance, loss of business, nuisance, or other damage, including ~vitl;out limitation. any abatement or reduction in Lease fees due hereunder, arising out of Landlord's entry onto the Prefniscs as provided in this Provision, except Damage res~vlting solely from the aotive negli;~^nce or ujiilful misconducs_ o* Landlord or its authorised representatives. 22.4 Non=Dis urbance. Landlord shall use its best efforts to conduct its activities en the Premises as allowed in this paragraph, in a manner w}~ich, to the extent reasonably practicable, will cause tI]e feast p0551b1e ]nCGnverzience, annoyance car disturbance to '1'rnant. 23. PERF'ORIVIANCE OIv BEHALF OF TENANT in the event that Tenant shall fail to ,:r~akc any payr;ent or perform any act required hereunder to be made or performed by Tenant, then Landlord may, but shall be under no obligation to, provide Tenant tivith written notice and an oploortunity to cure as specifically set forth herein, following which Landlord may make such payment or perform such act, if appropriate under the circumstances given the nature of Tenant's operations at the Premises, ~=rith the same effect as if made or performed by Tenant; provided however, that nothing contained in this paragraph shall Iimit Landlord's obligation to provide written notice to "I'cnant under paragraph 18 of this Lease. Entry by Landlord upon the Premises for such purpose shall not waive or release Tenant from any obligation or Event of Default hereunder. Tenant shall reimburse (with interest at the Default Rate) Landlord for all sums so paid by Landlord in connection with the performance of such act. _Additiona3ly, in the.event that Tenant shall #'ail. to.make any_.pa~ment required hereunder to be made Tenant then DBW may, but shall ~e under no o~li~atlop tO~.pr~vide Tenant wi_th.tivritten notice and_aIl Oq~~i~tuni _ t cure as..spccificall_y_set forth herein, follo~~~ing whici~ DRW na~y_ma~kc such payrnen.t, with the same clTect as._if made or performed by Tenant. It DBW_provides such written notice, Tenant shall, ,vithin thin ~ 3.0. dad vs of the date of written notice, reimburse (with interest_at Ehe Default Rate DBW fir all sums So_;paid DBW. 24. ACCEPTANCE OF SURRENDER No modification, TenZ~ination or Sun•ender of this Lease or surrender of the Premises or a~~y part thereof or any interest therein by Tenant {except surrender upon Expiration or Termination of this ~~ Lease) shall be vat id or effective unless agreed to and accepted in writing by Landlord and no act by any representative or agent of Landlord, other than such a written agreement and acceptance by Landlord shall constitute an acceptance thereof. 25. 1/STC)PPEL CERTIFICATE BY TENANT Tenant ;will execute, acknowledge and deliver toe~the~Landlord or DB~V within thirty (3a) days after receipt of Landlord's Qr DBW';~ written request, as the case rna~!~e therefor a certificate certifying: (a} that this Lease is unmodified and in fill] force and e~Tect {or if there have been ~~nodificatians, that this Lease is in fzil_1 force and effect as modified, and stating tl~_ modification); {b} the dates, if any, t+? tvhicli any sums payable hereunder have been paid; (w} that 31o notice has been received by Tenant ofany Default which has not been cured except as to Defaults specified in said certificate; (d) that Landlord is not in default hereunder except as to Defaults specified in said certif sate; and {e) any other matters reasonably requested and related to this Lease, In the event Tenant. faiiis to execute and return such certifcate to Landlord within said thirty (301 day period, Landlord may e:~ec~~c si.'.cll certificate on Tenant's belzalfand ab.ces to provide Tenant with a Dopy of said certificate. :~*:y such certificate, ~vhcther executed- by Tenant or Landlord on Ten .rt's behalf, shall be binding upon Tenant and inay ve relied upon by any prospective purchaser or mortgagee of the Premises or any p3ri thereof. 2~. ESTOPPEL C> RTII'1CATE BY LANDi.ORD Landlord will execute, acknowledge and deliver !o Tenant within thirty (30) days of Tenant's wrilten request, a Certificate certifying: (a) that this Lease is unmodified and in full force and effect (or if t"ere have been modifications, that this Lease is in foil force and effect as modified, and stating the modification); {b) the dates, if any, to which any Burns payable hereunder have been paid; {c) whether or not to the knowledge of Landlord there are then existing any Defaults under this Lease (and so specify the same); and (d) such other matters related to this Lease as are reasonably requested by the requesting party. Any such certificate shall be binding on Landlord and maybe relied upon by any prospective transferee of Tenant's interest under this Lease_ In the event Landlord fails to execute and return such certificate to Tenant within said thirty (30) day period, Tenant may execute such. certificate on Landlord's behalf and agrees to provide Landlord with a copy of said Certificate. 27. CONVEYANCE BY LANDLORD In case the original or any successor :Landlord shall convey or otl~er<vise dispose of Premises or its interest therein, it shall thereupon be released from alt liabilities and obligations of Landlord under this Lease (except those accruing prior to such conveyance or other disposition) and such liabilities and obligations shall be binding solely on the then owner of the Premises. Tenant waives the protection of any statute or rule of law that gives or purports to give Tenant any right to terminate this Lease or surrender possession upon the transfer of Landlord's interest. Tenant hereby recognizes that City is the successor in interest to Landlord in the event Landlord dissolves or othenvise discontinues by operation of law or othenwisc. 3~ 28. PROVISIONS SUBJECT TO APPLICABLE LAW Rights, powers and remedies provic]ed herein may be exercised only to the extent that exercise thereof does not violate any applicable Law, and are intended to be limited to the extent necessary so that they will not render this. Lease invalid or unenforceable. 29. NOTICES VJ;;enever any notice is required or permitted hereunder, such notice shall be in writing and shall be perso ;ally delivered; sent by U.S. Registered or Ccrtifced 1•:1ail, return receipt requested, postage prepaid, or sent by a nationally recognized overnight carrier service to the address set forth below or at such otl:or addresses as are specified by writte;~ notice delivered in accordance herewith: Landlord: SAN MATED COUNTY HARBOR D1STP.ICT 4C+~ Oyster Point Blvd_ Suite 300 South San Francisco, CA 94080 Tenant: SAN FR;,NC][SCO BAY AREA WATER EIvIERCEI~CY TR.A iJSPORT'A'I'iOIV AUTI-iORITY Pier 9, Suite ] l I San rranciseo;, CA 9411 l DBW: __DEPARTMEI`JT~F BQAT]id~G AND W~i"FER111jA_ Y~ __ _ _ _ . _ _ 2000E :-ert;reen_ Street, Suite l CO Sacrament 'A 9581 ~3~$_~ Any notice personally delivered as hereinabove provided shall be deemed effectively given on the date of receipt of such notice_ Arry notice sent by U.S. Registered or Certified Mail or by a nationally recognized overnight courii.er service sha}I be deemed effectively given on the date of delivery or attempted delivery thereon, whichever is sooner. 29.1 Service_af process. Concurrently with the execution of this Lease a form for the irrevocable appointment of an agent to receive service of process on behalf of t}~e other party shall be executed by each party. 29.2 Dis utes Sub~cct to Mediation and Arbitration. Any dispute bcttiveen the parties relating to the interpretation and enforcement of their rights and obligations under this Lease shall be resolved solely by mediation and arbitration in accordance ~vitl~ the Provisions of Paragraphs 29.3 et seq. of this Lease. 29.3 Initial Mediation. With respect to any dispute between the parties that is to be resolved 6y arbitration, the parties shall attemf>t in good faith first #o mediate such dispute and use their best efforts to reach agreement on the matters in dispute. Within five (S) days of the request of ~~ any party, the requesting party shall ;attempt to employ the services of a t}~ird Person mutually acceptable to the parties to conduct such mediation witi~in twenty-one (21) days of his appointment. if the parties arc unablle to agree on such third Person, or, if on completion of such mediation, the parties are unable to agree and sett]e the dispute, the dispute shall be referred to arbitration in accordance with Paragrraph 29.4. 29.4 Arbitration. Any dispute bet~~vicen the parties that is to bo resolved by arbitration as provided in Paragraph 29.2 shall be >ettled and decided by arbitration conducted in accordance with the Commercial Arbitration Rules of the Q„rerican Arbitration Association, as then in effect, except as provided'oelow. Any sLCh arbitration shall beheld and condi.ut~u in the County of San Mateo by an arbitrator, ~vho shall be selected by mutual agreement of the pariies; if agreement is not reached on tl;e selection cf an arbitrator within fifteen (15) days, then Landlord and Tenant shall each choose an arbitrator, each of ~.vt_~om shall agree to select a third arbitrator who would actually arbitrate the dispute bettivaen the parties. The provisions of the Commercial Arbit*.-ation Rul s c; the American Arbitration Assoc~atton shall apply and govern such arbitration, subject, however, to the folloti~ving: (a) Any demand for arbit~~tion sljali be in writing and must be made tiuitliin a reasonable time after the claim, dispute or other matter in q•,~estion has arisen. Ln no event shall the d~mard for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter tivould be barred by the applicable statute of limitations. (b) The arbitrator or arbitrators appointed must be former or retired judges or "~±ttorneys" with at least ton (1.0) years experience in real property and commercial matters. (c) All proceedings involving the parties shall be reported by a certified shorilland court reporter and written transcripts of the proceedings shall be prepared and made available to the parties. (d) The arbitrator or arbitrators shall prepare in writing and provide to the parties factual findings and the reasons on which the decision of the arbitrator or arbitrators is based. (e} A final decision by thE: arbitrator or arbitrators must be made within ninety (90) days from tl~e date the arbitration proceedings are initiated. (fl The prevailing party shall be awarded reasonable attorneys fees, expert and non- expcrt tivitness costs and expenses, and other costs and expenses incurred in connection with the arbitration, unless the arbitrator or arbitrators for good cause determine othenwise_ 3~ (g) Costs and fees of the arbitrator or arbitrators shall be borne by the non-prevailing party, un]ess the arbitrator or arbitrators for good cause deter,nine otherwise_ {h) The award or decision of the arbitrator or arbitrators, which may include equitable relief, shall be final and judgment shall be entered on it in acc:ordancc with applicable law in any court having jurisdiction over the ;natter. NOTICE: BY INITIALING l'N 1~I-iE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF TI-iE MATTERS INCLUDED IN Tl-IE "ARBITr~1"I'1GiJ OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFrRNIA LA YV AND YOU A)ZE GTVIi~1G UP ARTY RIGi-ITS YOU MIGHT PGSSESS TO HAVE THE DISPUTE LITIGA"1'ED IN A COURT vR JURY TRIAL. BY I:`~iTIALiNG IN "I'IIE SPACE BELOW YOB ARE CiIVIidG UP YOUR JUDICIAL RIGHTS TO DISCOVERir' AND APPEAL, UNLESS THOSE RIGI-ITS A_RE SPECIFICALLY rNCLUDED ?Tl THE "ARBITRATION OF DISPUTES" PROVISION. ii `r'GTi1 REFUSE TG SUBMIT TO A R~ITRATION, AFTER ,4_GIZEEING TO THIS PRG"dIS10~?, YOU MAY BE COMPELLED TO ARBITRATE UNi~ER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVP~ PR^vCEDURE. YOUR AGREE~lIEN'I' Tl? TINS ARBITRATION 1 itOVISION IS ~It}T r,r?JTARY. WE HAVE READ AND U-~1L'ERS~'P.ND THE FGR EGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE M.yTTERS INCLUDE© IIvT TIIE ARBITRATION OF DISPUTES PROVISION TO NEUTRAL ARBITRATION. Initials Initials Initials 30. ATTORNEY'S FEES Tenant shall reimburse Landlord_anal/or DBW, upon demand, for any reasonable costs or expenses incurred by Landlord and/or DBW in connection with an Event of Default under this Lease, whether or not suit is commenced or judgment entered. Saclt costs shall include legal fees, casts for experts or other professional services, and costs incurred for the negotiation of a settlement, any enforcement of rights or otherwise. If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the: losing party reasonable attorney's fees and costs of suit. Litigation Expenses. If either party Hereto brings an action or proceeding (including any cross--complaint or counterclaim) against the other party by reason of a Default, or otherwise arising out of this Lease, tf~e prevailing party in such action or proceeding shall be entitled to recover from the other party its costs, and expenses of suit, including but not limited to, reasonable attorneys' fees, which fees shall be payable whetl~cr or not such action is prosecuted to judgment. "Prevailing party" within the meaning of this paragraph shall include, without limitation, a party who substantially obtains or defeats, as the case maybe, the relief sought in the action, whether by co~iipromise, settlejnent, judgment or the abandonment by the other party of its claim or defense. Appeals. Attorneys' fees under this sec-t~ion bra -raLLh shall include attomeys' lees and alt other reasonable costs and expenses incur--ed in connection with any 3ppeal_ 31. QUIET ENJOYMF.i~IT Upon Tenalrt's tender of the one-ti2r~e lump-sum payment due hereunder for Rent, Tenant shall have quiet possession of the Premises for the .Lease Term.. If at an_y time, Landlord's title is ~~isputed, or there is a change of owners!:iy of Landlord's estate by any ac# of tli~ parties or operation of La~v, Tenant may deposit in escrow any monies ttlercafler due until T cnant is furnished proof satisfact:,ry to ii as to thv party entitled thereto. 32.' RECOGN1T10N OF LEASE The parties acknowlodgc that this Lease is presently subject to certain lien rights of'':° r~''~^m' Dep~~in.^~ ^~~^n'~~~ i~c~~~ate~v~rys~=`~B-~}L~W. In the event such lien continues to aPp1Y to the Premises after approval of this Lease by DBW, and if DBW succeeds to Landlord's interest in the Premises, Tenant (or its authorized successors and assigns, if any} shall, immediately and wit hoot fi,:rthcr action. by DB ~J, Tenant or any other party, automatically become the tenant of and attorr, to ar~d recognize DBW as the Landlord under this Lease for the time period through 3~Iovember 10, 202, and DBW shall, immediately and without further action, by Landlord or Tenant, automatically become the landlord to and recognize Tenant as the tenant under the pease, without modification or revision. Nottivithstanding that the foregoing provisions of this Sec-tieApar~graph are self-operative, upon request of Landlord or DBW, Tenant shall execute and deliver to Landlord and to DBW an at#ornmcnt agreement in recordable form confirming the foregoing and otherwise in form and substance acceptable to Landlord and DBW. Tenant hereby constitutes and appoints Landlord or its beneficiary as the Tenant's attorney in fact to execute any such instruments of attornment for and on behalf of Tenant_ This Sec-ti~en~gra~ shall be self operative, and no further instrument of attornment need be required by DBW_ DBW hereby grants its consent to these provisions by its execution of the Lease_ DBW and Tenant hereby recognize the foIlotiving: (i) that City is the successor in interest to Landlord in the event Landlord dissolves or otherwise discontinues by operation of lativ or otherwise, (ii} that DBW-~n~ay-er-~~-3a~t °^^~~^~~~~~b,s ~Sitit~n_is that it has lien rights when and if City succeeds to Landlord and (iii) that this Article 32 shall continue to apply in the event such lien riglrts continue. 33. 1v1ISCELLANEOUS PROVISIONS -~ 33. I Time is of the Essence. Time is of the essence with respect to the performance of each Provision of this Lease. 33.2 Onl~Aareement. This Lease: is the entire and only agreement between the Parties, and supersedes any and all otl~er leases, c:ovenanis, and agreements between the Parties. This Lease shall not be effective until execution and delivery of the Lease by each of Landlord, ~ errant, and City and either written approval or execution and delivery of the Lease by DB1~V. 33.3 Payme„ts by Tcnart. Except as otherwise expressly provided herein, all sums payable by Tenant to Landlord under this Lease shall be paid witho~:i notice. Al] sums payable by Tenant shall be paid by good check in the currency of the United States. 33.4 Stat~ls of Parties on T ertnination of i.case. Except as provided in Paragraph 18, if either Landlord or :'errant elects to Terminate this Lease as provided herein, on the date the Lease terminates the parties shall be released from further liabilities and obligations not accrued as of tI}e date of Te;r,~iratio . 33.a Exhibits/ Incorporation in Lease. All exhibits rel'crred to in this Leaso are attached to this Lease and are incorporatcu herein by t,"is roi;rcnce. 33.G rovernina Law. This Lease :;hall be construed and interpreted in accordance with ehe Lativs of the State of California, and venue for any action relating thereto shall be in San Mateo County. 33.7 Singular and Plural and Cendcr. When required by the context of this Lease, the singular shall include the plural, th~~ male the :female, and vice versa. 33.8 Severability. The unenforcealbility, invalidity, ar illegality ofany Provision of this Lease shall not render the other Provisions of this Lease unenforceable, invalid or illegal, and this Lease shall remain in force and effect as if such unenforceable, invalid ar illegal Provision had never been a part of this Lease. 33.9 BiadinL Effect. Each and every Provision, agreement, terms, covenant and condition of this Lease to be performed kept and observed by Landlord and Tenant shall be binding on any party who lebally acquires any rights or interest in this Lease from Landlord or Tenant. 33.1 Q Third Party Beneficiaries. ~~eExcent as to a t}~ird_narty beneftciar~right or ~r th_ at rnay be exercised b~DBW un, r th w ire are no third party beneficiaries of this Lease. 33.11 Interpre-ation. This Lease shall conclusively be presumed to have been drafted jointly by both parties hereto. 33. I 2 Authority. If any Party has a f;overning Board of Directors or similar governing body, that party shall deliver to the other Parties upon the execution of this Lease evidence of that L1{ Board's or governing body's approval. The Parties certify that the persons executing this Lease have been given such authority by l]leir respective Board or governing body_ 33.13 Captions. Captions are included in this Lease for convenience only and do not constitute a part of this Lease. 33.14 sect-ionPara~ratZh. headin~s_ The sec-~ioi~ ash heading contained herein arc for convenience in reference and are not to be used to construe the intent of this Agreement or any part thereof, nor to modify, amplify, or aid i n the interpretation or construction of any of the Provisions thereof. 33.15 Successors and Assigns. Su~jject to the kertns ofArticIe 17, the terms, covenants and conditions contained in this Lease shall be binding upon and inure to the benefit of the heirs, successors, executors, administrators and assigns of the parties to this Lease ?31 ". ~ Con ent~__!N?~crevcr the cons~e«t f a Pa~_ • is re aired under this Leak, uch e~nsent shall n t e unrca na iy withheld,_c~ naiti_~nc_d or delay ;3.1.7 ArnendmentS. ~ 11. amencimen~t~his. Lease ~l~all e in writin . nd executed_ e ch of the~~rtes_hereto. All_parties agree ic-~rovide DB`J~! with rea na le ri lice, whi;.l~_.shall by thirty -(3 ~ da fi to the oxen, •' to _ f an~intendecl a.mendrnent t ihi Lease. 1 Ile..rara ties further a:~ree that reasana Ie ri~r notic~_ma e si~nificar~tly shortened in the o_v_cnt of ~n emer~enc~; suffi_c~nt to cause an na~r ida le Delay. X111 parties further ackn_ ~vo ~ed~;e ±hat DBW must a~pr~e._ ure.amend~nent~to this Lea e of re uch amen ment ecQmc ef~'ecti_ve. 34. MEMORANDUM! Or' L-EASE Concurrently with execution of this Lease, the parties shall execute and acknotivledge a Memorandum of Lease identifying the: Lease to be recorded in San Mateo County. Upon the request of either party, the parties sl7ail execute and acknowledge further Memoranda of any future amendments of this Lease. The parties hereto ratify, confirm and adopt all of the terms and conditions of the Lease. IN WITNESS VI~HEREOF, the Parties have executed this Lease on the day and year first above written. SAN MATEO COUNTY HARBOR 1;-ISTRICT DATED: ELY: SAN FRANCISCO BAY AREA WATER EMERGENCY TRANSPORTATION AUTHORITY ~~ DATED: BY: Agreed to and approved by. CITY OF SOU'~i3 SAT`: FRANCISC~D DATED: BY: CO?~ISEN'I., TO TI-IE TERMS OF THiE LEASE IS I-IEREBY GRANTED: CALIFORNIA DEPAR T MENT OF I30ATING AND WA'T'ERWAYS DATED: rsY: '- l-~ EXI-YIBYT A LEGAL DESCRIPTION A,ND DEPICTION Off' DEMISED PREMISES LEGAL DESCRIPTIOI~I: The description of the Leased Premises for the Oyster Point Ferry Terminal ("Ti erminal"} as illustrated in the "Water Transit Authority South San Francisco Ferry Terminal Partial Site Layout Plan {East Basin)" attached herewith and incc~yorated ny reference herein i5 as follows: An arcs of land and water s~~:Yonnding and adjacent to the Terminal ~,~hose boundaries rt.inning ~lortlL'south are on either side of and parallel to the 7'er;r,inal, exie.^.ding norihward from the northern or waterside edge ;,f t11e existing pedestrian and bicycle path identified on il;P Layout Plan as "Existing Bay Trail" for approxitnatcly three hundred seventy (374) feet and «llrase nortl~crn edge runs easUwest for approximately one hundred twenty-six (I2b) feet, and whose sc4ther:s edge runs eastiwest for apprr i?natcly hvo hundred forty-four {L^~) feet~ai a disiance approximately fi~y-five (SS} feet south of the Terminal entrance. The caste ~~most edge of the IandsIide portion c. the Leased Prcrniscs is apnroxirnately fart-; -f ire (~5} feet. east of the eastern north/south waterside boundary or tl~e Leased Premises and approximately five (5~ feet west of the existing restroom fou::dation. DEPICTION: SEE AT 'ACHED ~~ E;YI-IIBIT B DEPICTION O14, OYSTER POINT FERRY TEP~IINAL SEE ATTACHED y5 _`•~ EXHIBIT B ` ~. D ~_~ ~~ o- ~ _° ° /r I ~ ~__ C a 11-~--~~:.. I _~ ~• ~' a ~ ' f 'I '~ ~. iiy~ ", ~ ,t'• ..r f ~, ' ~~i o I ~! 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EXHIBIT D BCI)C PUT-LIC ACCESS REQUCI2~IYIENTS SEE ATTACHEll ] 244351.1 1-{-X0334: I- J~ EXHIBIT D _ - ~~ - _ J o o -'~ r ~ i r ; • 1- t .~ { , (pi}•PU9UC nCCESS _ _ 1 R ~ , ' ~ ~ ; ~ i I -' ,~ ~ ; ~~~ URU•1G BOAR411G AND - - . c ' + ~ y i + ~ ! 41SEI,tBARKIIJG ONLY ~ ,- --- .--- GROSS AREA: 6,G5a SF _ ' ; ~ I I I ~.. { i r;, ~; NET AREA: 3.554 SE_ _ - - -+ ', . it ~t ~ I-`. ~ ~i r'^~ 1 r I r-.. _' ss l '~.' I~1 '1 1. ~ 1 _-' _ _ 1 1 •;~; ~ ; )1 ` ~ t + ~~ `~~~1 h ^ (N} PUf3LlC ACCESS OPEN} ~^ = - -' ~ - + ~ - - - - ;~,; ; / ~; I, }~ ~ ' ' ~~ ; iii ~ CURING FERRY lERt.iINnL , ~ ~, - fl~il ,' y'~ - ~ ~ ~ ~i~'.~ OPERATIht4 HDQRS ~_ __, .- _- - :.~ ~_= -_--- - 1 'i 1 rr, ~ d t \ ~ . ~.i~~' ! ~ Om I ~ 1 ~ ~ C~htGTFI: l55'-0~ 'i r _ I ~ l . ~, • rl~ti. P 9LIC AcGE55 ~'IEaA1JG= - :. I i. ~ -~ ...x, U --. 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Et•JHANf'E4 ! ~~ ..~~ ~_, - - - FED/BIKE ACCESS TRAIL = '-•j J,~ ll"--":~'' --1"`i~--...-~ - 1 ,~~--~ -- -a '' - - I~ LE7•(G1H: 344' l -- •- - ~~r - - - ~------ _ .... _ AREA: 3.450 SF •,.~ tr ~- ~,'~~- ~ ~ -- ~~ - I (Ih~CLUGES HlCN V1S18ltlT~j' i • _ :, ~ I.tAFf(R!G OF CR0551VxFK5 ~ u ~ 1 _ ~r5)c ~ -'~ .. _ _ •! -^ AT /iDdI.CEH7 RI]AD1Y~Y5) ~,. 3 ~ y ~' ~ ~ rp~4~~~r ~ '~' -- •.-~`-- Dnn~e--i•tss - -~: _ ~~ ~, :~ ~ '~ .~ ~ `•- _- -~ `a,- ~ Cole 80~T STORl,~c Skr i. ~ ~~.- - _~ ~ ~` ~' ,~l_,, r.._ C~ ~ A ~BQ,Q I ~ ~~ _ ~ _ _• (E) PEDJBACE ACCE~S--iRf~IL-" ` ~ ~ _ ~~..- - REPA1'E nt1D'S~10EN T4 14' (~° ; . _ •o7stEe •_, ! , ..,I ti~7iER6-REQUIRED ,_l - - 1 tLf2GTH: 225' ' POIUT .~?~ ~, - A1~EA: 3.180 SE -----PltR3t_ f ~• ~ _ --- -- -_---- - "--~-?.4~ ' - -~- -- -- - ~ -`- -~.~---~~ BAY TRAIL _- --~-' =-~' PUBLIC ACCESS PLAN m SDUTH ~~AN FRANCISCO FERRY TERNtlNAL I .. NDVEbiBER19,2008 ~G+I.E: -' = toa' ~~ RECaRDING REQUESTED BY, AND WHEN RECORDED MAIL TO: Nossaman LLP ) 50 California St., 34`'' Floor ) San Francisco, CA 94l 1 l ) Attention: Danielle S. Gensch, Esp. ) I1'XEM~~'.A1~ilYJ1V1 Off' LEASE `this 1Vlemorandum of Lease {"Memoranaum"} is made as of 2009 by and betvreen San 1rancisco Bay Area Water Emergency Transportation Authority ("Tenant"), San Mateo County Harbor District ("T~andlord") and the City of South San Francisco ("City", and coli =ctively ti~~ith Tenant and Landlord, tho "PuriiCS''}. RECI~'ALS A. Landlord, Tenant and City have entered into that certain Amended and Restated Ground Lease and License dated , 2009 (the "LcasP"} for the real prot;erty (the "deal Praperty") described on Exhibit A, attached hereto and made a part hereof_ B. As of November l 0, 2026, City will succeed to Landlord as land-lord under the Lease, pursuant to the terms of a separate Joint Powers Agreement dated as of November l 1, 1977 by and between Landlord and City . 8. Landlord and Tenant desire to execute this Memorandum. to provide constructive notice of Tenant's rights under the Lease to all third parties. NOW, THEIZEFQRE, for good and valuable consideration, receipt of which is hereby acknowledged, the Parties hereto agree as follows: 1. Lease. Landlord hereby leases the 12ea1 Property to Tenant, and Tenant leases the Real Property from Landlord, for a term of fifty-five years (the "Term"}, subject to al! the terms and conditions of the Leasf;. This lease of the Real Property is pursuant to the Lease, which is incorporated in this Memorandum by reference. Lease. 2. No Ootions to Extend. There are no options to extend the Term of the 3. Miscellaneous. This Memorandum is executed and recorded for the purpose of providing record notice of execution, delivery and existence of the Lease. This Memorandum shall not supersede or in any way modify the terms or conditions of the Lease and in the event of any conflict between any term or provision of the Lease and this Memorandum, the applicable term or provision of the: Lease shall control. Oyster Poini Marina Memorandum of Lease Ob4~Q4.1~~C ~~) 4. Severability. If any term or provision of this Memorandum is, to any extent, held to be invalid or unenforceable, the remainder of this Memorandum will not be affected, and each term or provision of this Memorandum will be valid and be enforced to the fullest extent permitted by law. If the application of any term or provision of this Memorandum to any person or circumstances is held to be invalid or unenforceable, the application of that term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected, and each term or provision of this Memorandum will be valid and be enforced to the fullest extent permitted by law. 5. Counterparts. This memorandum may be executed in any number of counterparts, each of which is deemed to be aii original but alI of which s hall constitute one instr,:ment. IN WITNESS WHE `LVi ,the Parties have executed this ;Memorandum as of the day and year first above written. TENANT SAN F~~ANCTiSCO iiAY AREA V~%A T ER EMERGENCY TR.ANSPORTAT~ON AU`i'~ORi'I'Y By: Name: _ Title: LAIVTDLOtZT SAN MATEO COUi~1TY I~ARBOIt AISTRICT By: Name:_ Title: CITY: CITY OF SOUTI~ SAN FRANCISCO By: _ Name: Title: Oyster Point Marina Memorandum of i_.casc 06D~DS~.L70C ACI{NO'tiYLEDGl1~ENT OF TENANT State of California ) County of pn hPf ore me, , a notary public, personally appeared , i~~ho proved to me on the Oasis of satisfactory evidence to be the person{s; whose names) islare subscribed to the within instrument a'7C1 acknowledged to me that heish~they executed the carne in hisiner/their ai.~thorized capacity(ies), and that by his/herltheir signature(s) on the instrument the p~rson(s}, or the entity upon behalf of which the persons} acted, executed the instrument. 1 certify under PENALTY OF PER3UR_Y under the 'laws of the State of California that the foregoing paragraph is tr'Le and correct. WITNESS my ha;,d and official seal, Signature (Seal) Oyster Point Marina Memorandiun of Lease 060209.DOC 5~ ACKN4WLEDGNIENT OF LANDLORD State of California ) } County of ) On before me, , a notary public, personally appeared , «~ho proved to me on the basis of satisfactory evidence to be the persons) whose name{s) islare subscribed to the within instrument and acknowledl;ed to me that heishe~they executed the same in hisiher/their authorized capacity(zes), and that by hislherltheir signaturets) on the instrument the person(s), cr the entity upon behalf oi'which the persons) acted, exec~~teci the instrument. I certify under PENALTY CF PERJLIRV ~_~nder the laws cif the State of California that the ;oregairg paragraph is true and correct. WITNESS n,y hand and official seal. Signafi~re (Seal} -2- `J~ AC~tOW~EDGEMENT OF CITX State of California ) } County of ~ On be:fore me, , a notary public, personally appeared ,who proved to me on the basis ~af satisfactory evidence to be the persons} whose name(s) is/axe subscribed to the within instrrument and acknowled;;ed to me that he/she/they executed the same in his/herltheir authorized capacity(ies}, and That by his;heritheir signatures} on the instrument the person(s), or the entity upon behalf ojFwhich the person(s) acted, executed the instrument. I certify under P1/I~AI~`t'Y Oh, PERJt)RY under the laws of the State of California that the foregoing paragraph is ?r~.~L and correct. Vr'I ; ;vESS my hand and official seal. Signature (Seal) -3- E~HY ~YT A LEGAL DESC~PTION [; o be provided by SMCHD] -4- ~~ RESOLUTION NO. CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AI'PROVII~-TG THE THREE PARTY AGREEMENT REGARDING DISTRIBUTION AND USE OF SAN MATED COUNTY M~~,ASiJRE A FUNDS FOR FERRY SERVICE 3ETWEEN SOUTH SAN FRAl`~CISCO AND OAKLAl`.D WI-IEF.EAS, the City owns the real property and wator area lc~-~awn as Oyster Point INiarina ("Marina"}; and ~THEREAS, the San Francisco Say Water EmergenLy Transit Authority 1,"VdETA."} has entered into a lease for a portion of the ivlarina proper J to use to cnnstnact and operate the South San Francisco Feizy Terminal I;"Ferry Terminal"j; ~uiu `;ill-iEREAS, the Sar ;~':ateo County Transportation Authority ("Authority"j has authorized the use and expenditure al'$15,404,000 of San Mateo County Ivi~asure A funds to pay a portion of the cost to construct the Ferry Terminal; and, WHEREAS, the City, V~ETA and the Authority have prepared a Three Party Agreement to govern the distribution and use oi' Measure A Funds and to impose specific requirements on each party. NOW, THEREFORE, BE IT RESOLVED by the City Council of the Cifi~ of South San Francisco that the City Council does hereby: 1. Approve the Three lParty Agreement Regarding Distribution and L'~se of San Mateo County Measure A Funds for Ferry Service between South San Francisco and Oakland by and between the City, WETA and the Authority, substantially in the form set forth in Exhibit A attached hereto, but subject to revision as deemed appropriate by the City Attorney; and, 2. Authorize the City Manager to sign and execute, on behalf of the City, the Three Party Agreement Regarding Distribution and Use of San Mateo County Measure A Funds for Ferry Service between South San Fr;aneisco and Oakland, substantially in the form as set forth in Exhibit A, attached hereto, but subject to revision as deemed appropriate by the City Attorney. * ,~ ,~ * ~ ~~- the City the AYES: NOES: I hereby certify that the foregoing Resolution was regularly introduced and adopted by Council of the City of South San Francisco at a meeting held on day of 2009 by the following vote: A~STA~N: A° SENT: ATTEST: City Clerl: 1245569.1 ~~ THREE PARTY AGREEMENT REGARDING DISTRIBUTION AND UST; G1= SAN MATEO COUNTY MEASURE A FLTNDS Ff3R FERRY SERVICE (BETWEEN SOUTFI SAN FRANCIjCO AND OAKLAND This THREE PARTY AtREEMENT {"Agreement') is made this _ day of , 20C9, by and among the SAN MATEO COUNTY TF+;ANSPORTATtON AUTHORITY (°Authority"), the City of South San Francisco {°Cit~') and the San Francisco Bay Area Water Emergency Transportation Autt•~ority, ("WETA"}. WHEREAS, on November 2, 2[}04, -he voters of San 11ri8teo County approved the continuation of the collection and dislrbution by the Authority of the Measure A f,'2 cent transaction and use iax fir un additional 25 years to implement t"e r~Gr4 Transportation Expenditure Plan, ljey-inning Jan~~ary 1, 20Gy ("Measure~A°); and !~-!Ftt=RLAS, the 2004 Transportation Expenditure Pian includes a 2% furxfing share #o provide F1n2ncial aSSlS#anCe a5 tOCa~ niaicn funds for cost-effective ferry service to South son Francisc;a and Redwood City, anu WHE;~EAS, the ci#ie..~ of Sout;~ San Francisco and Redwood City have apprc.~ed a bC/50 tending share split, equivalent to ~i ~ million 0'.004 dollars} in Measure P, ~,~nds to each Lily aver the 25-year life of the Measure; and WNER~4S, in its capacity as protect sponsor, # he City of South Sari Francisco ("City') iias submitted a request for an allocation of the entirety of its $15 mltion share of Measure A funds for the South San Francisco Ferr~- Terminal F`roject (ihe "Project"); and WHEREAS, the San 1'rancisc~a Bay Area Uliater Emergency Transpor#ation Authority ('WETA'} is a government entit~r established pursuant to an act by the California 5#ate Legislature ir, 20G; whose purposes are to plan, design, eonstrucl and operate a comprehensive regionai wafer transit system on San Francisco Bay, including the provision of emergency water transportation services ilia[ maybe necessitated by a regional disaster; and ~MHEREAS, the City has proposed that Measure A funds be allocated to the City, which, in tom, wi!I pass the funds to 111/ETA as the entity that wilt arrange for construction of the Project and subsequent operation of tivater transit services to a:nd from #hat facility, and WHEREAS, due to the environmental sensitivity of the Project location, site preparation, pile driving and pier construction operatiams are pem~itted during a construction season each year; and WHEREAS, as a result of the :applicable limited construction season, the City and WETA have requested action by the Authority prior to the collection of the 2004 Measure A revenues to enable WETA to advertise for construction bids for the Project in 2009, and to enable actual construction to commence during 2009; and WHEREAS, based on preliminary projections of sates tax revenues io be received by the P,uthorlty, staff has estimated that $15 million of Measure A funds can be made available for allocation to the City commencing on June 30, 200€-, and specified amounts as shown in Attachment C shall be made available on a quarterly basis (hereafter for an estimated period of it3 months, wish the understanding that disbursements will be made on a reimtlursement basis only, subtect to the availability of funds; and V1fHERFAS, although the funding request was presented to the Authority on June 2, 2008 and considered on a parallel path with the adoption of fhe new Strategic Plan and thus the process otherwise 1 San Af alto county T»nspprtapon Authoriry.` 5out$ San FranciSCdVlater F,rrmrgency Tr~ruporbtion Authority 733G4d_7.DOC 1822159.2 '~-~ l contemplated in the recently adopted Strategic Plan for allocation requests was not followed, the Authority has determined that the funding request is consistent wish the fundamental policies contained in the Strategic Plan based upon the following considerations: (1 } The Project was evaluated based tlpcrt a comparison of other ferry services in the San Francisco Bay Area a. d has been determined to be "cost-effective" within the meaning of the fvleasure A Transportation Expenditure Plan predicated on the assumption that the City will providw su~c;ient access improvements and development opportunities near the proposed ferry terminal to enable projected ferry service ridership fo be real'¢ed; (2} Tt?e two eligible applicants for ferry program f•.;nding identified in Measure A have agreed upon an equal split off the anticipated avar~able funds; (3} The altocaiion of f~te~isure A fends to the Ci[y on the schedule referred to above will not adversely affect ~vtcasure A funding opportunities fUr projects ident~ed in other program areas in 6*te Measure A Transportation Expenditure Plan at this tittle; and WHEREAS, the Auihori~y hGs uppreved the allocation of P~ieasure A fu; idif Iy is t;-e City on an expedited basis in~accordancA ti~ith the terrr-s and conditions set forth herein. NOtiN, THEREFORE, !h' COAISIQERAT!ON OF THE FOREGOING, THE PAR T iES AGREE AS FOLLOWS: CITY ACKN OW t_EDG ES AND AG REFS: A Roe. To serve as Project Sponsor for the Project. B. Pre-Operations Commitments. To submit W ETA's business plan addressing ridership, marketing, and an operations plan to the Authority for approval prior to ret~uesting the initial reimbursement of funds from the Authority. To demonstrate to the reasonable satisfaction of the Authority that WETA has shown a commifinent of other funding sources such Thal the Project is fully funded, even in the event of cost increases or unanticipated eacpenses. City acknowledges that, pursuant to this Agreement, the Authority has allocated the maximum amount of Measure A Funds available for this Project. C. Monitoring. To submit monthly progress reports to the Authority throughout the construction phase and quarterly progress reports during the post-t:ons#ructlon operation;>} phase of the ProjecE- These reports w~l satisfy the requirements set forth in Attachment A. To make good faith, vigilant efforts to start and end construction milestones delineated in Attachment B, which is incorporated herein by reference. San Matao County TransQottztaon Authority/ South San T'ranciSedWai~x Emcr~cncy Traasportatiott Authority 2.13644 7.DOC ]82.2159.2 b~ b. Operations Commitments. To lake a!t reasonable actions to assure that W ETA will operate scheduled ferry service to South San Francisco for a minimum period of 5 years commencing on the date of initiation of scheduled service, in accordance with the approved business plan. This obligation shall not require the City to provide airy funding that may be necessary to assure that ferry service is provided i1o South Sar. Francisco for the minimum period of 5 years. To lake all reasonable actions ~o assure'v"JETA will rnainiain a commitment to maintain channels and ferry terminal infrastructure in South: van Francisco for use in an errergencywill incorporate ii'iis cor??m'ttment in WETA's Emergency ResponsE~ Puri required to be adopted by .1uly 1, ~uu9. iii, 7o take alli reasonable actions to assure W ETA will give priority in tra n,pcr ling first responders ~emerger; r personnel; en the fetiyvesse;s during an emergency situation in accorc+?r:ce with 1NETA's Ear-ergency Response Pian required to 6e adopted by Jut, ? , 2~9. E. InvoicinglRelmb!+rsements. To seR~e as the ".pass through agpnc}r" for the flow of Meas-lre r funds (between the Authority and W E t"A. City shall invnice the Authority seeking reimbursement of funds expended by WETA to compete the Project in accordance with the amount. of funding that the Authority wilt make available on a quarterly basis as set forth in Attachment C. II. WETA ACKNOW LEuGE:S AIdD AGREES: A_ Role. To serve as. Project Manager 1o implement the consiruc#ion of fhe Project and operation of feny :>ervice to Sauih San Francisco. B. Pre-Operations Commitmsnts_ To submit an acceptable business plan to the City addressing ridership, marketing, and an operations plan for ferry service to South San Francisco prior to re+auesling the initial reimbursement of funds from Ci#y_ To provittf: the City with information that will demonstrate to the Authority's reasonable satisfaction the comr-nitment of other funding sources such that the Project is fully funded, even in the event of cost increases or unanticipated expenses.. WE-i'A wit[ not seek additional Measure A funds from fhe Authority over and above the amounts specfied in Phis Agreement_ C. Monitoring_ To submit monthly progress reports to the City throughout the construction phase and quarterly progress reports during the post-construction (operations) phase of tlhe Project. These reports will satisfy the requirements set forth in At#achmerit A_ To matte good faith, vigilant efforts to meet starf and end construction milestone:> delineated in Attachment B. San Matm CountyTranspvrUOan ~ulhority/ South San Francistd:Yatcr ~mcrgrnry i'ransportatNm Authority 233G44_7_DOC 1822159.2 ©. Operations Commitments. To operate; scheduled ferry service to South San Francisco for a minimum of 5 years commencing on the date of initiation of the scheduled service in accordance wiill the approved business plan referred to in Sec#ion ll.B~i). ii. To maintain the water channels and ferry terminal infrastructure in South San Francisco for use during an emergency for so Song as WETA is provtdlnq ferry senrice.io South San Francisco or is the emergency response provider! but in no event for more rmy live years from the date of commen:.t=ment of scheduled service, and to incorporate this commitment in Wi=TA's Emergency Response Plan require C7 to be adopted by July 3, 21709_ iii. To give priority in transporting first responders temergency pe;sonrel) on the ferry vessels during an emergency situation lit accordance with WE7A's Emergency Response Plan required to be adopted by July i, 2GGG. E. Security tntcrest. Tv provide the Authority with a security i~ iMerest in the t=erry Terminal Faclliiies to be constructed with Measure A funds, in a ferrn to be approved bylegat counsel to tale Auif~ority and WETA to assure performance ~f the o; ligati:~ns and commitments set foorth in this Agreerrcnt_ F. lnvoicing/Reimbur~~emant. To send invoices to City to forward on to Authority and to receive from City monies paid on prior submitted invoices by Authority to reimburse for eligible project costs. 1lI. AUTHORITY ACKNUWLI=DGES AND AGREES: A Rote. To serve as 'one of several funding agencies for the Project to fhQ extent and in the manner conterr~p)aied in fhis Agreement. B. ~e ;Operations Commitments. To review and reasonably approve documentation required from the City and WETA reflecting satisfacfion of the conditions set forth in Sections~l and tl above that serve as prerequisites to issuance of Measure A funding. fi. To commit a~15 million as the maximum allocation out of Measure A funds to the Project_ C. Monitoring. To review monthly progress reports and monitor the construction phase for scope, schedule, and budget compliance and to review quarterly post-construction (operations) progress reports. subject to compliance by W ETA and City with their respective obtigatio~ns and commitments set forth in Sections 1 and 11 of this Agreement, to pay all eligible costs reflected on invoices from Gity on a reimbursable basis up to fhe agreed upon maximum amounts to be made available on a quarterly basis as reflected in the payment schedule set forth in Attachment C. D. To attach assets funded with Measure A proceeds if ferry service is operated to and from South San Francisco for a duration of tens than 5 years commencing on the date of initiation of scheduled service. Sir, biatrn County hartsponarion Authority/ y South San Ftaacis~~olWalts l=mcrgcncy Transpatatian Authority 4 Z33fi44 7.DOC t 822159.2 C,'~ IV. FUNDING COMMITMENT OF AtJTN4R[TY Pursuant to Public l;tilities Code Sections 131265 and t312F,u, ail funding obligations of the Autr~ority under this Agre{ement are subject to the Authority's availability of funds. Subject to the foregoing, the Authoriity shall appropriate to the City up to $15 million for expenditures an the Project. The Authority shall make this amount available to the City an a reimbursement basis only in response io invoices with the first payment to take place no sooner than June 30, 2009. The Authorit}~s Ubiigation to reimburse funds to the City shalt be conditioned up*+n the Authority's prompt receipt of monthly progress reports from the City covering the reimbursem~:nt period. UUithin 180 days following completion of constriction of the Project and alt inclder=tai v-~oric, City shall furnish the Authority with a final report detailing th? total costs for the Project. The report s;;2!l contain an accounting of p11 Measure A `ands expended in connection with the Project and Ghall reflect any unexpended Measure ;funds that may remain. Any and a!! financial obligations of Autho:ity pars;..=ant to [his Agreement shall expire upon the expenditure of Authority's maximum contribution to the Project set forth in Secti.^.:; I11, above. The C~ and ~~licTA understand, ackn^:.j1e<,sye and agree that_the Authorit;~'s funding commitment undaar this Agreement represents the tots! amount of Measure A funds t~ be made available for the Project. AG ESS TO RECt~Rv$ Ai alt reasonable times,. City and'NETA shall permit the Authority access to UII reports, design docu~~~ents, specifications, schedules and other materials prepared for t_he Project by the City or ar~y contractor or constalfant of the City. City shall also make available to Authority upon request any professional :service agreements, change orders and any ofher agreemer-ts that are entered into far the performance of Project related work and services. The City shall provide copies of any documents described in this Section to the Authority if the Authority requests such documents,. Vl. TERMINATION A_ City andlor WETA may at any time terminate the Project by giving written notice to Authority of its etec.tion to do so, provided that upon such termination Authority may exercise its right to secure possession of the assets covered by the security interest provided to the Authority pursuant to Section II.E hereof. B. The Authority may at any lime terminate the Project >,y reason of default by the City or WETA by giving City and WEfA 10 days' written notice of such termination. tf default is not cured within ilhirty (30) days fallowing written notfce of termination, Authority may exercise its right to secure possession of the assets covered by the security interest provided to the Authority pursuant to Section II.E hereof. VII. INDEMRI[TY A Indemnity bV Cif. City shall. fully release, indemnify, hold harmless and defend ,(with counsel reasonably satisfactory to Indemnitees, as defined below} Authority and its directors, officers, employees and agents, and each of thorn (collectively, "Indemnitees") from and against all liability, claims, suits, actions, cost or expense for loss of or damage to property and for injuries to or death of any person {including but not Ilrnited to the property or employees of each parry} when arising out of or resulting from any act or omission by Cily ,its agents, employees, contractors or subcontractors in connection with any aspect of the Project, including the design, construction andlor San Marco Gnarly "IYansportation Authority/ Savth San Franctiscdw3ler Ernerner:ey 7ransportatial Authority 233644 7.AQC 1822159.2 ~~ maintenance of said Project; and City's performance of obligations and covenants established in this Agreement. City shall also fully relapse, indemnify, hold harmless and defend lndemnitees from and against any and all claims or suits that maybe brought by any of its contractors or subcontractors pertormtng work in connection with or rotated to the Project. City's obligation to defend shah include the payment of aft attorneys fees anti a!I ether costs and expenses of suit, and if any judgment is rendered against any Indemnitee, Gity shall, at its expense, satisfy and discharge the same. B. !ndemnih~ by WETA. WEiA shelf fully release, indemnify, hold harmless and defend with counsel reasonably satisfactory to !ndemnitees, as defined below) Authority and its directors, orficers, employees and agents, and each of them (coltectiv°ly, "Indemniiecs") frorn and against all liability, claims, suits, actions, coGt or expense for Ions ~f nr damage tv property and for injuries tc or death of any person (including but not limited to the piroperty or employees of °ach party) when ari;iny out of or resulting from any act or amtssic~n ray W ETA, its agents, employees, ~,ontrac':ors or subcontractors in connection with any aspect of the Project, including the design, construction andrflr r??aintenance of said Project, and 1ti'E~^.`s perfarrrance of obligations and covenants established in this Agreement_ WETA shall also fully release, indemnify, hold harmless and. defend lndemniteAs from and against: any and a!t claims or suits that maybe brought by any of its contractors cr subcontractors performing worts in connection with or related to the Project. W ETA's obligation to defend shall include the payment of all attorney's fees and ap other costs and expenses of suit, and ii; any judgt~ent is rendered against any Indemnitee, v",ic i"A _Shal!, of its expense, satisfy and dischargethe-same. ~1!ll. 1NSUFANCE For purposes of this section of the Agreement, the tenor "Contractor" Shad mean any i.^.dividuai or business entity engaged to design, build, maintain, repair or improve Ehe Project, or io operate ferry service to and. from the Project under a contract funded in whole er part by the funding provided for under this A,i~reement (the°Contrac~). Notwithstanding the foregoing, the term "Contractor' shall exclude any individual or business entity under contract to perform services for WETA at the time of execution of this Agreement. The insurance requirements specified in this section shall apply to Contractor and any subcontractors, suppliers, i;emporary workers, independent contractors, leased employees, or any other persons, firms or corporations that Contractor authorizes to work under the Contract (hereinafter collectively referred to as "Agents"}. WETA is required to require Contractor 10 procure and maintain at its sole cost and expense the insurance coverages subject to all of the requirements set forth below. Such insurance shalt remain in full force and effect throughout the term of the Contract. Conitracier is also required to assess the risks associated with work to be performed by Agents under subcontract and is include in every subcontract the requirement that the Agent maintain adequate insurance coverages with appropriate limits and endorsements t,o cover such risks; the limit for the commercial general insurance in each subcontract shall not be less than $9 million. To thc; extent that anyAgent does not procure and maintain such insurance coverage, Contractor shall be responsible for said coverage and assume any and al! costs and expenses that may be incurred in securing said coverage or in fulfilling Contractor's indemnify obligation as io itself or any of ifs Agents in the absence of coverage. In the event Contractor or its Agents procure excess or umbrella coverage to maintain certain requirements outlined below, these policies shall also satisiyall specked endorsements and stipulations, including provisions that the Cantracto~s insurance be primary without any righE of contrbution from the Authority. Prior to beginning work under this contract, Contractorsh2ltprovide the Authwitywith satisfactory evidence of compliance with the insurance requirements of this section. San Malro Gwnry Traruportation Authority/ South San ; ranciscollYatcr i:nxrgcncy Transportatioru Authority 2.33644_~.DOC 1622159.2 l~ A. (Minimum Types aril Scope of Insurance: 4^,lorkers C~om ensation and Em la ers' t_iabil' Insurance. a. Workers Compensation witti Statutory limits, as repaired by Section 3700 et seq. of ~ the California labor Code, or any subsequent amendments ar successor acts thereto governing the liability of employers to their employees. b. U.S. Longshoreman and Harbor Workers (tlSLB,H) coverage if this contract invC;ves work on or adjacent to navigable water, as defined by the _U.S. Department of Labor. If USL$,H coverage applies, this contrd~t requires proof of insut~nce coverage in compliance with statutory. requirements of the Longshoreman and Harbor Workers' Compensation, ,~,ci !administered by the U.S. Department of Labor}. c. Employer's Liauility coverage with minimum limits of $5 million. d. Such insurance shall iny';ide the following endorsement as further detail8d ill ire Endorsements Section below: - Waiver of 5ubrocation. ii. Commercial General Liability Insu-~nce. ComrtZercial Genera! liability i; Durance for bodily injury and property damage coverage with a combined single limit for bodily injury and prauerty damage of at least $5 million oer occurrence or claim and a general aggregate limit of at least ~5 n;illion_ Such insurance-shall cover all of Contractor's operaoons both at and away from the project site. a. This insurance shaft include coverage for. but not be limited to: - Premises and operations. - Products and completed operations. - Cor,Uactualllability. - Personal injury. - Adlvertising injury. - F~cplosion, collapse, and underground coverage (xcu). - Broad farm property damage. b. Such ins~Urance shall include the following endorsements as further detailed in tre Endorsements Section below: - Additionallnsured. - Cross Liability or Severability of Interests Clause. - Primary and Non-Contributory wording_ - Waiver of Subrogation. c_ Products and completed operations insurance sha(! be maintained for three (3) years fopowing termination of this Agreement_ Protection ar~d Indemnity (inc(udinq Jones Act), if this contract involves marine activities, or work from a boat, vessel, or ftoaGng platform, Contractor shall provide Protection & Indemnity coverage inciuiiing injury to a crew (Jones Act) and passengers; Protection & Indemnity, SP 38 or SP 23 for ~5 million San M2>ro County Transportation Authority! South San Fnnciscn/1~lattr Enrrgenry Trrrnportaticm /~tttttoriry 233694 7.1700 13227 59.2 combined single limit per occurrence. iv. Business Automobile !_iability ]nsurance. Business Automobile E.iability insurance providing bodily injury and property damage coverage with a comb ned single limit of at least $5 million per occurre~ ce. a. This insurance steal! include coverage for, bui nut be limited Io: - i<<~: C~~ned vehicles. - Non-owned vehicles. - (tired or rents) vehicles. b. Sueh insurance shall inciudP the fo:'.~`_:~i"9 endorsements as further detailed in tFe Endorsements Section below: - Additionallnsured. - Primary and t•~lo; ~-Contributory wording. - VVaiver of Subrogation. Property insurance. Property insurance with Special Form coverage including (heft, But excluding earhquai<e, with limits at least equal to the replacement cost of the properly described betow_ a. `this insurance shalt include coverage far, but not be limited ta: - Cer:tractor'a awn business personal property and equipment to be used in performance of this Agreement_ - Any of the .following, if applicable: (1) Maten'als or property to be purcriased andlor Installed on behalf of the Transportation Authority, if any; (2) Debris removal; or (3} Builders risk for rea! and personal property in the course of construction. h. Such insurance shall include i,~e toltowing endorsementas fudherdetailed in the Endorsements Seciion below: - Vl/giver of Subrogation. vi. Hull and M~~chinerv. !f this contract involves marine activities or worts from boat. vessel or floating platform, Contractor shall provide coverage at Market Value of vessel orgy wnerican Institute Hull Clauses, 6/2177 corm. vii. Professional Liabili Insurance. A professional liability policycavering errors and omissions and the resulting damages including, twt not limited to, economic loss to the Authority and having minimum limits of 1i8t3ility of $1 millon per claim or occurrence and $5 million annual aggregate. a. The policy shalt include coverage far all services and work performed under this Agreement b. Such insurance shall include the following endorsement as furtf~erdetailed in the Endorsements Section below: - Waiver of Subrogation_ San Ma2co County TranspQrtatian Authority/ San:h San FranrisrdlVatrr Fnxrgcnry Tra~nspcxtation~ Authority 233644 7.DOC 1 B22 t S93 ~~ I viii_ Contractors' Pollution liability Insurance and/or Environmental Liability insurance_ - a. Cbntractor$' F~ollution Liability insurance for bodily injury and property damage cover~ige with a comGined single limit for bcdi!y injury and property damage of at least $5 million per occurrence or daim and a general aggregate Ilmlt of at least $S million. The policy shall also cover economic toss to the Authority. !f Cantra~cfor disposes of Hazardous Materials under ibis Agreement, Contractor snail designate the disposal site and provide a cert;#icate of insura~ ice from the disposal facility to the Auinorihy. b. If this c:ontrct involves marine acti~.ities ar work from boat, vessel or #loating pla!ion-n, Contractor shall provide pollution insurance io satisfy U.S. Coast Guard requir ernents as respects ihe.l~ederal Dil Pt;ilution Act of 'l9g0 and the Comprehensive Environmental Re; ponse, Compensation and Liability Act of ~ 98rJ as amender. c. The Contractor's Business Automobile Coverage-shall also be extended to cover poDutlon liability during loading; unloading and while in transit including, but nut limited to, the perils of collision and upset. Coverage may ize provided by enclorsement to ft~e general liability and automobile policies or by a separate policy. d. This insurance shaA include coverage for, but not be limited to: - :sudden end accidental discharges. - Gradual discharges. (:lean-up of pollutants and disposal thereof_ e. Such insurance shalt include the following endorsements as further detai{ed in Sec#ion 2 below: - Additionallnsured. - Cross Liability or Severabllity of interests Clause. - Primary and Non-Contributory wording. - bVaiver of Subrogation. B. ENR4f2SEMENTS Additional Insured. Ttie referenced policies and any Excess or Umbrella policies shall include as Additional insureds the Authority and its directors, officers, employees, volunteers and agents while acting in such capacity, and their successors5 or assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally. n. Waiver of Subrogation_ The referenced policies and any Excess or Umbrella policies shalt contain a waiver of subrogation in favor of the Authority and its affcers, directors, employees, volunteers and agents while acting in such capacity, and their successors and assignees, as they now, ar as they may hereafter be constituted, singly, jointly or severally. iii. Primary Insurance. The referenced policies and any Excess and Umbrella policies shall indicate that they are primary to any other insurance and the San Matco County 7rarwxxt~tion Authority/ South San Frtncisco/1Yater Emergcnc}+TransporL-ttion Authority 233644_7. DOC 12122 t 59.2 insurance company{ies} providing such policy{ies} shall be liable there under far the fait amount of any loss or claim, up tc and including the total limit of liability, without riflht of coat; ibution from any of the insurance effected or which maybe effected by the Authority. iv. SeverablitY of tnterests or Cross Liability. The referencew policies and any i-xcess or Jr„brella policies shall contain either a Cross liability endorsement or Severability of Interests Clause and stipulate that inclusion of Authority as an Add;tionat insured shalt not in any way affect District's rights either as respects any daim„ demand, suit :,r judgment made, brought or recovered against the Contractor. Said policy shall protect Contractor and the Authority in the same manner as though a separate policy had been issued to each ,but nothing in said policy shalt operate to increase the insurance company's liability as set forb~l in its policy beyond the amount or amocnts shown or to which the insurance company would have been liable if oily one interest had been named as an insured. C. EVIDEILCE OF 11y;5URANCE Alt Cover3g~s. Prior to commencing work or erlfering canto the Property, Contractor shall provide the Director, Contracts and Procurement cf t;;e Authority vv~th a ceri;ifcete evidencing coverage, and r?pon request, a certified deplicate original cf the policy. The certificate shall also show chat the Contractors' policy(Ies}wilt not be cancelled or coverage altered ;•rithout 3t) days prior :witten notice to tC,e Authority's Director, Contracts and Procurement. D_ GEivc'r2At_ PRQV13tONS "+otice of Cancellation. The policies shalt provide that the Contractors' polices will not tae cancelled or have limits reduced or coverage altered without 30 days prier written notice to the Authority's Director, Contracts and Procurement. . n. Acceptable: Insurers. A!t policies will be issued by insurers acceptable to the Authority (generally with a Best's Rating of A- t0 or better). iii. Self-lnsuraince. t3pon evidence of financial capacity satisfactory io the Au[hority and Contractor's agreement to waive subrogation against the Authority respecting any and al! claims that may arise, Contractor's obtigaiion hereunder may be saiished in whole or in part by adequately funded self-insurance. iv. Failure to Maintain Insurance. Alt insurance specified above shall remain in force until alt wor[c to be performed is satisfactorily completed, all of Contractor's personnel and equipment have been removed from the Authority property, and the work has been formally accepted. The failure io procure or maintain required Insurance andlor an adequately funded self-insurance program will constifute a material brf;ach of this Agreement. Requlator}L Compliance. In addition to the requirements described above; Contractor :shall comply with additional coverages required by the United SEates Departmenll of Transportation, the Environmental Protection Agency, andlor related stags or local laws, Hales and regulations. vi. Claims Made Coverage, a. if any insurance specified above shall be provided on a claim-made basis, San A1au'o Counry "IYansportation Awhnrity/ South San Franciseo~lVatrr Ltr~ergrnry Truupvrtatian Authority 10 ?3304 7.DOC 1822159.2 ~3 then in addition to coverage requirements above, such policy shall provide that: - i'olicy retroactive dale coincides with or precedes the Contractor's start of work (including subsequent policies purchased as renewals ctr replacements). - Contractor shall rake every effort to maintain similar insurance for at Least three {3) years following project completion, including the requirement of adding alt named insureds. - lit insurance is terminated for any reason, Contractor a;rees to purchase ~~n extended reporting provision of at Least three (3) years to report claims arising from work performed in connection with this Agreement. - Policy allows for reporting of circumstances or inadents that might give YiSe tp fUtGfe Claims. vii. Deductibles Gnd I?et2niions. C'or:tractor shall be responsible for payment of any deductible or retention nn Cantracto!'s po!iGies wit.~out right of contribution from tl;e Auihorify. IX_ MISCEL1~4l~EQUS :~. Notices. All notice:> required or permitted to be given under this Agreement shall be writing and mailed postage prepaid or by certified or registered mail, return receipt requa,ted, or by person delivery or overnight courier to the appropriate address indicated below or such other places j That any party may designate in w. alters notice to the Gfhers. Notices shalt be deemed received upon delivery or personally served one {1) day after mailinti if delivered by oversight courier, or two (2) days after the mating date if mailed as provided above_ Authority, San Mateo County Transportation Authority 1280 San Carlos Avenue San Cantos. CA 9401t) Attention: Executive Director City: City of South San Francisco 40U Grand Avenue South San Francisco, CA 94480 Attention: City Manager WETA: San Francisco Bay Area Water Emergency Transportation Authority Pier 9, Suite 114 San Francisco, CA 94111 Attention: Executive Director B. No Waiver. No waiver of any default or breach of any covenant of tl]i~ Agreement by any party shall be irr]plied from any omission by either party io take action on account of such default If such default persists or is repeated. No express waiver shall affect any default not specked in the waiver, and the waiver shall be operative only for the Time or extent sfateci. The consent or approval by either party to or of any act by either party requiring l'urthE:r consent or approval shall not be deemed to waive or render unnecessary conser]t or approval to any subsequent, similar acts. San Ivlatep County Transportation Authority/ Sough San Franciscollva[a Erner~,ency Transportation Authority ii 233644_7. D(~C ] 822159.2 ~~ C. Assignrnf:nt. All of the terms, provisions and conditions of Phis Agreement shall be binding epon and inure io the benefit of the parties and their respective successors, ass(gns, artd legal representatives. D. Govemine Law. Tl•-is Agreement shall be yovemett by the laws of the State of Califomia as applied to contracts chat are made and performed entirely in California. E. Modificatior~s_ This Agreement may only be modified in a writing executed 5y all parties. F. Attorne}'s Fees. In the event legal p~rorreeMings are ir;sGluted to enforce any pr~vfsion of this Agreement the prevailing party in said proceedings shall be entitled to its costs, including reason-abie attorney's fees, in addition to such other rerr:edies to which it rr,ay be entitled. G. E~ Mira r,Qreeme::i. This i~+greement Constitutes the entire -ogreemirnt between the parties Yertainina to its s!..~bjeci ma"er and supersedes and prior or cont2mporaneo:.~s writtP;: `c?r oral agref:ment between the parties cn thQ same subjeft. H. Conditions ?recedent. This Agreement will not become ef'ective unless and until the fogcwir~g actions have occurred.. Ap; :oval ef'this Agreement bythe Board of Directors of V~JEfA; ii. Approval of this Agreement by the City of South San Francisco City Ce!.incil; anc+ iii. Approval of this Agreement by the Board of Directors of the Auihoriry_ 1. Countemarts_ This Agreement may be executed in counterparts each of which maybe deemed an original„ but both which togetl-,er shalt be deemed a single Agreement. [SIGNATURE PAGE TO FOLLOW] San Matto County Transportation Authority/ South San Francisco/lvultr krncrgcncy Transportation. Authority 1? 233G44_7.llOC 1822159.2 ~5 IN WITNESS WHEREOF, the parties have hereunder subscribed their names the day and year indicated below. San Mateo County Transpcrtauon A~tharity/ South San Francisco/1Vaur ErncrgcnryTransportation Authority CITY DF SDUTH SAN FRANCISCO B j!: Name: Barry M. Nagei Its: City Manager Approved as to Form: Citji Attorney S/~N FRANCISCO BAY AREA WATER EMERGENCY TRANSPORTcAT10N AUTNO By: Nagle: Nina Rannells its: i=xecutive Director Approved as to Farm: ~~ Legai Counsel for 1NETA SAN EdATE[3 COUNTYTRAN5PORT1aTJON AUTHORITY By: Name: Michael J. Scanlan Its: Executive Director/ CEO Approved as to Form: t_egal Counsel for the Transportation Authority 13 233644 ?.DOG IBZZI59.2 ~" ~Ci ATCACHMENT A MQNITOF:ING 01= PROJECT PERFORMANCE I. Progress Reportsl Project Performance 'i. Capital Monitoring City will submit monthly ±eports to the TransportaiiaR Authoriry during the construction phase of the Project. The monthly reporil will need to summerLe the current status of the scope, budget, cost, and schedule. Additionally, the monthly report shall include information an any potential proect issues that n?ay impact any of these perforrrmance measures as wolf as the ability et VUETA to meet t3ie conditions outlinQd in Section, til of this agreement. Pdotably, each report will a'so contain an accounting of expenses incurred to dale. 2. Operations Monitoring The City dnu tiJETA :viii submit quarterly reporis on the operations of the ferry service to South San Francisco (ridership, costs, revenues, service t?ve!s, and cares). hose sports shall include a comparison of the ferecastedtprujacted with actual dvta for each specified Grca 7~ith an exptanatio;~ of deviatio,rs from: the forecasted figures. Other ~,rcgress reports being sent to ocher agencies will be accepted provided the information being requested by file Authority is captured. fl. Final Report City will submit a final report for the Aroject to the Authority within 18t? !gays after the Pnd ui the conshuction of the project. Tt-re Project. report will include: 1. A description of the Project„ including a statement on the overall rrogress and succors of the Project, a compilation of data collected during Lhe active phase cf the Project, and changesladditions to the scope. 2. An accounting of expenses incurred to date on the Project and an estimate of expenditures for the next flscel near. 3_ Any copies of press articles, press releases, newsletter articles and any other publicity material$ regarding the Project. 4. A discussion of any pertinei .t issues or problems that arose during the construction of the Project. Snn Alutco County Transpor2~Iion Authority! Wniar FrrtcTgcnty'ftartspoi'tatirnn AgrnCy l4 233b44_7.DOC 1822159.2 ~~ ATTACHMENT B PROJECT II~tFORMATlON South San Francisco i=erry Terminal Project t_eadllrnplementing Agency: WETA SNOrlsoring Agency: City of South San Francisco Descrip#lon: Construction of a Ferry Terminal at Oti+ster Point in South San Francisco. Current PrajectStatus: The envirvnmentai clearance was approved on December 2006. Final Design was cori~pieted in Falt 2008. Ovea-al! proieci i^.fotmatlon Funding: R4easure A Funds $'.5,.^,00,000 Feder2i i=arrnar~~s $ 10,ROO,rJ00 Proposition 16 $ 10,00,000 RM 2 SSF specific $ 12,000,000 RNt 2 Genera! ~ 4,200,0.00 Total ~ 52,000,000 Project 6udgetl Estimated Cost: Env./DesignlMitigation $ 4,200,000 (RM 2) Property Lease a 3,660.000 (Proposition 113) Oakland Terminal Repairs $ 500.,000 {Proposition 1 B) South San Francis: n Terming! Construction . PierlTSCrdce Construction ands Design contingency $ 6,804,040 {Measure AI Federal) Float Constn~ction and Contingency $ 9,504,444 {Measure AI Federal} Dredging $ 2,000,004 (Measure A! Federal} Project O4ersightlmanagernent $ 3,414,000 {Measuro A! Federal} Vessels ~ $ 24,500,000 (RM 2/ Federal/Prop. 18) Contingency S 1,426,000 (Proposition 1B) Total $ 32,ot)o,ooa Measure A Deliverable Component Description: Constnlction of a t=erry Terminal {dredlging, t"Joat, gangway, terrace and pier construction} Project Schedule: Begin End Construction June 2009 October 2010 Start of Operations End 2010 San hiaico County Traruportalion Authority! 1Yattr Flixsgency "rrans~wrlation AgFncy IS 233644 7.DOC 1822159.2 Program Purpose To reduce drive alone commuting from the East Bay to San Ma#eo Caunty. Emergency; option for San Macao County. Provide alternative roui;e for commu#ers. Operating Plara South San Francisco Ferry service is :,checfuled to be In operations t;y the end of 2010. The operations are io be funded ot~t of Regional Measure 2 funds, managed by i~~lTC_ San Rialto County Trm~spcxintion Authority 1Valer F.mergcncy Transporiati•~n Agtatcy 16 233644 7_llCIC 1822159-2 ATTACHMENT C Quarterl~~ Payment Schedule of Measure A funds The Authority agrees to the fallowing cash flow schedule. Reimbursements of Measure A funds vriil ~mmence no sooner than June 3fl, 21x09. Eligible expenses begin as or` the execution date of this funding agreement. Quarter Endin+~ Maximum Annount Available for Reimbursement 1. ! f i 2. i 3. June 30, 2009 ~ September 30, Zc709 7ecember 31::?009 $ 2,324,371 : $ 3,95!;$57 $ 3.183,2'(9 ~ 4 March 31, 2fl1 Gi $ 3,783,2'19 5. Jvne 30, Z07fl $ 7,803,000 6. 5epiember 30, 2U7fl $ 553,333 San Matto County Transportation Authority/ 1Vatrr Erncrgcr-cy Trar~wrt3tion Agcr-cy 17 233644 7.DOC 1821159.2 o ~ H ~ O c'~LIFOR~1~ a ego DATE: June 18, 2009 TO: The Honorable Mayor and City Council FROM: Marty Van Duyn, Assistant City Manager SUBJECT: AN URGENCY ORDINANCE OF THE CITY OF SOUTH SAN FRANCISCO MAKINCJ FINDINGS AND ESTABLISHING A DEVELOPMENT MORATORIUM IN A PORTION OF THE SOUTH EL CAMINO REAL CORRIDOR IN ORDER TO PREVENT USES INCONSISTENT WITH THE PENDING EL CAMINO REAL GENERAL PLAN.AMENDMENT, THE CHESTNUT/EL CAMINO REAL SPECIFIC PLAN AND THE ZONING ORDINANCE UPDATE RECOMMENDATION: It is recommended that the City Council waive reading and make findings and adopt the urgency ordinance that establishes a moratorium c-n discretionary approvals in the specified area ("Moratorium Area") in the El Camino Real planning sub-area, pending completion of the South El Camino Real General Plan Amendment, Chestnut/El Camino Specific Plan and the Zoning Ordinance Update. The Moratorium includes exceptions for (1) building permits issued for existing land uses and those land uses permitted in the Moratorium Area, where the improvements for which the building permit is issued do not require any discretionary approvals, including the maintenance and repair of existing signs, buildings, and structures, and (2) discretionary approvals for affordable housing projects in the Moratorium Area. BACKGROUND/DISCUSSION: Staff has prepared an urgency ordinance in order to facilitate the implementation of a general plan, specific plan and zoning ordinance update for a specified area in the El Camino Real corridor ("Moratorium Area") as depicted in Exhibit A, attached to the ordinance and incorporated by reference. If adopted, this urgency ordinance will establish a temporary moratorium on discretionary approvals within the Moratorium Area. "Discretionary approvals" are defined to include general plan amendments, specific plan adoption and amendments, zoning amendments, subdivisions, conditional use permits, minor use permits, variances, planned unit developments, and design review. The Moratorium would, however, provide exceptions for (1) building permits issued for existing land uses and those land uses permitted in the Moratorium Area, where the improvements for which the building permit is issued, do not require any discretionary approvals, including the maintenance and repair of existing signs, buildings, and structures; and (2) discretionary approvals for proje~;,ts in the Moratorium Area, of which at least 20% of the project's 1246231.1 Staff Report RE : Urgency Ordinance June 18, 2009 Page 2 of 3 residential units would be classified as "affordable" under the City's Municipal Code (SSFMC, § 20.125.020). The Moratorium would be in effect for 45 days, unless extended by the City Council, pursuant to the procedures outlined in the Government Code, and discussed in more detail below. t1RGENCY ORDINANCE: As the City Council is aware, the City is in the process of adopting the South E1 Camino Real General Plan Amendment, the Chestnut/El Camino Specific Plan, and the city-wide Zoning Ordinance Update. These documents will implement the City's long-term planning goals and strategies for the E1 Camino Real corridor and beyond, which include mixed land uses, walkable neighborhoods, compact urban form, transportation and transit alternatives and a range of housing opportunities. The City intends to complete the South El Camino Real General Plan Amendment by August of 2009, the Chestnut/El Camino Specific Plan by July of 2010, and the Zoning Ordinance Update by December of 2009. The City has expended a great amount of staff time and financial resources towards the development and preparation of these plans and zoning update. As the City completes the General Plan Amendment, the Specific Plan and the Zoning Ordinance Update, it is important that activities and land use:> do not frustrate the implementation of the planning strategies contemplated in these documents. Therefore, staff recommends the adoption of the urgency ordinance in order to protect the City's investment in these planning efforts, ensure that the City's long-term planning goals and strategies can be achieved in a timely manner, and to avoid a current and immediate threat to the public health, safety, and welfare, that could occur if parties seeking to evade the operation of these plans and codes were permitted to obtain approval for uses that might defeat the ultimate objective of the General Plan Amendment, Specific Plan, or Zoning Ordinance Update. The attached urgency ordinance would temporarily prohibit discretionary .approvals (including general plan amendments, specific plan adoption and amendments, zoning amendments, subdivisions, conditional use permits, minor use permits, variances, planned unit developments, and design review) in the Moratorium Area. However, the urgency ordinance would not affect: (1) approval of building permits for existing land uses and those land uses permitted in the Moratorium Area, where the improvements for which the building permit is issued, do not require any discretionary approvals, :including the maintenance and repair of existing signs, buildings, and structures; or (2) discretionary approvals for any project of which at least 20% of the project's residential units would be classified as "affordable housing" (as defined in Municipal Code section 20.125.020). Discretionary approvals are required for the introduction of certain new land uses and exterior modifications to existing uses. These uses could potentially create conflicts with surrounding land uses, and would require conditions to ensure compatibility with the neighborhood in which the use is proposed. The uses may also conflict with the planning goals and strategies contemplated for the General Plan Amendment, Specific Plan, and Zoning Code Update. Initiation of these types of uses in the Moratorium Area would frustrate the City's efforts to establish comprehensive and cohesive planning strategies for the property. Accordingly, initiation of uses and projects requiring such discretionary approvals presents a current and immediate threat to the public;, health, safety, and welfare. Further, the Moratorium Area is primarily zoned Planned Commercial (P-C) and Retail Commercial (C-1), with small segments that are 1246231.1 Staff Report RE: Urgency Ordinance June 18, 2009 Page 3 of 3 zoned Industrial (M-1) and Open Space (O-S). Staff believes that adequate sites exist elsewhere in the City to accommodate uses prohibited by tlhe urgency ordinance, including, but. not limited to the other areas in the City that are zoned Planned Commercial (P-C), Retail Commercial (C-1), Industrial (M-1), and Open Space (O-S). ADOPTION OF URGENCY ORDINANCE: Pursuant to Government Code Section 65858, the City has the authority to immediately adopt a 45-day moratorium prohibiting any uses that may be in conflict with a contemplated general plan, specific plan or zoning proposal that the legislative body, planning commission or planning department is considering in order to protect and preserve the public pf;ace, health, and welfare. Moratoriums may be extended for up to a total of two years, provided that a current and immediate threat to the public safety, health and welfare still exists and the City follows the public notice and hearing procedures required for extensions of moratoriums. The proposed urgency ordinance may only adopted by a four-fifths vote of the City Council. ENVIRONMENTAL IMPACT Adoption of this moratorium ordinance would not be considered a "project" within the meaning of section 15378 of the State CEQA Guidelines, bec;ause it does not have the potential to result in a direct or reasonably foreseeable indirect physical change in the environment. Rather, the moratorium ordinance would only temporarily prevent certain physical changes in the environment pending completion of the City's planning for the Moratorium Area. Furthermore, this moratorium ordinance is categorically exempt from CEQA under Guidelines section 15308 because it is a regulatoryaction taken by the City, in accordance with Government Code sectic-n 65858, to assure maintenance and protection of the environment pending completion of the C;ity's planning for the Moratorium Area. CONCLUSION To ensure that implementation of the City's long-term planning goals and strategies is not impeded by redevelopment of properties or introducl:ion of new, conditionally permitted uses in the El Camino Real corridor, staff recommends that the City Council adopt the attached ordinance, making findings and establishing a moratorium on discretionary approvals within the defined Moratorium Area. -~ ~~, ~ E _ By, -~ Van Duyn, Assistant City Manager rry M. Nag ,City Manager EBH Enclosure: Urgency Ordinance 1246231.1 ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY OF SOUTH SAN FRANCISCO MAKING FINDINGS AND ESTABLISHING A DEVELOPMENT 1VIORATORIUM IN A PORTION OF THE SOUTH EL CAMIl~fO REAL CORRIDOR IN ORDER TO PREVENT USES INCONSISTENT WITH THE PENDING EL CAMINO REAL GENERAL PLAN AMENDMENT, THE CHESTNUT/EL CAMINO REAL SPECIFIC PLAN, AND THE ZONING ORDINANCE UPDATE WHEREAS, the City of South San Francisco (the "City") is in the process of developing a cohesive and comprehensive long-term planning strategy for the El Camino Real corridor; and, WHEREAS, the City is now preparing the South El Camino Real General Plan Amendment, which will establish planning strategies and policies for the properties along E1 Camino Real, south of Chestnut Avenue; the General Plan Amendment is expected to be completed by August of 2009; and, WHEREAS, the City is now preparing the Chestnut/El Camino Real Specific Plan, which will establish development standards and systematically implement the General Plan's policies, such as mixed land uses, walkable neighborhoods, compact urban form, transportation and transit alternatives and a range of housing opportunities; the Specific Plan is expected to be completed by July of 2010; and, WHEREAS, the City is now :preparing the city-wide Zoning Ordinance Update that will implement and is consistent with the City's existing General Plan, the proposed South El Camino Real General Plan Amendment, and the Chestnut/El Camino Real Specific Plan, including planning objectives of effective use of infrastructure, mixed land uses, walkable neighborhoods and compact urban form in the El Camino Real corridor; City staff expects to complete the Zoning Ordinance Update by Decerr.~ber of 2009; and, WHEREAS, the City has spe-nt considerable staff time and financial resources towards developing the South El Camino Real General Plan Amendment, the Chestnut/El Camino Real Specific Plan, and the Zoning Ordinance Update; and, WHEREAS, to protect the City's investment in these planning efforts, ensure that the City's long-term planning goals and strategies can be achieved in a timely manner, and to avoid a current and immediate threat to thf; public health, safety, and welfare, the City proposes adopting a moratorium on approval. of certain land use entitlements for the portion of the El Camino Real corridor depicted in E:~hibit A, attached hereto and incorporated by reference ("Moratorium Area"); and WHEREAS, a majority of the Moratorium Area is zoned Planned Commercial (P-C) and Retail Commercial (C-1), and small segments of the Moratorium Area are zoned Industrial (M-1) and Open Space (O-S); and, WHEREAS, the certain land uses and projects in the Moratorium Area would require discretionary approvals (collectively, "Moratorium Prohibited Uses"); and WHEREAS, "discretionary approvals" include general plan amendments, specific plan adoption and amendments, zoning amendments, subdivisions, conditional use permits, minor use permits, variances, planned unit deve}~opments, and design review; and, WHEREAS, Moratorium Prohibited Uses in the Moratorium Area, by nature of the fact that they require such discretionary approvals for the introduction of a new use or exterior modifications to existing uses, could potentially create conflicts with surrounding land uses, and would require conditions to ensure compatibility with the neighborhood in which the use is proposed; and, WHEREAS, the City Council finds that a temporary stabilization of activities and land uses within the Moratorium Area, pending completion of the South El Camino Real General Plan Amendment, the Chestnut/El Camino Real Specific Plan, and the Zoning Ordinance Update, is critical to the City's ability to successfully implement its immediate and long-term planning and land use goals for the Moratorium Area, and that any initiation of Moratorium Prohibited Uses would inhibit these efforts; and, WHEREAS, the City Council. finds that the initiation of Moratorium Prohibited Uses in the Moratorium Area would pose a current and immediate threat to the public health, safety, and welfare; and, WHEREAS, Government Code section 65858 allows the City to immediately protect and preserve the public peace, health, anti welfare by prohibiting any uses that may be in conflict with a contemplated general plan, specific plan or zoning proposal that the legislative body, planning commission or planning department is considering; and, WHEREAS, if adopted, this ordinance would not prohibit continuation of any existing use in the Moratorium Area, or prohibit approval of building permits for existing land uses and those land uses permitted in the Moratorium Area, where the improvements for which the building permit is issued, do not require any discretionary approvals, including maintenance or repair of an existing building; or prohhibit approval of any discretionary approval for a project of which at least 20% of the residential units would be classified as "affordable housing," as that term is defined in section 20.125.02() of the City's Municipal Code; and, WHEREAS, all of the Moratorium Prohibited Uses are permitted or conditionally permitted in other areas of the City, :including but not limited to areas that are zoned Planned Commercial (P-C), Commercial (C-l), Industrial (M-1), and Open Space (O-S); and, WHEREAS, the City Council therefore finds that adequate opportunities for development of the Moratorium Prohibited Uses exist throughout the City, beyond the Moratorium Area boundaries; and, WHEREAS, implementing a P/Ioratorium on Moratorium Prohibited Uses within the Moratorium Area, pending completion of the South El Camino Real General Plan Amendment, Chestnut/El Camino Specific Plan and the Zoning Ordinance Update, would be consistent with General Plan guiding policy 3.4-G-2, which is to "Encourage development of a mix of uses, with pockets of concentrated activity that f-rovide focii and identity to the different parts of El Camino Real." NOW THEREFORE, the City Council of the City of South San Francisco does hereby ORDAIN as follows, adopted as an interim ordinance, under the provisions of California Government Code section 65858: 1. Incorporation of Recitals. The City Council finds that all Recitals are true and correct and are incorporated herein by reference. 2. Moratorium Imposed. From and after the date of this ordinance, no discretionary approvals, defined to include general plan amendments, specific plan adoption and amendments, zoning amendments, subdivisions, conditional use permits, minor use permits, variances, planned unit developments, and design review, shall be approved for any property within the Moratorium Area, except that under this moratorium ordinance, (1) building permits may be approved for existing land uses and those land uses permitted in the Moratorium Area, where the improvements for which the building permit is issued, do not require any discretionary approvals, including the maintenance and repair of existing signs, buildings, and structures; and (2) discretionary approvals may be approved, as necessary, for any project in the Moratorium Area, of which at least 20% (twenty percent) of the residential units would be classified as "affordable housing" (as defined in Municipal Code section 20.125.020). 3. Authority; Urgency ;Statement. This ordinance is an interim ordinance, adopted as an urgency measure pursuant to Government Code section 65858 and is for the immediate and long-term preservation of the public :peace, health, and welfare. The following facts constitute an urgency ordinance: The City is currently, and has been for many years, in the process of developing a general plan amendment, a specific plan and a zoning ordinance update for certain parcels in the Moratorium Area. Land uses in the Moratorium Area which require discretionary approvals are of greater likelihood to conflict with the City's long-term planning goals and policies for the area, as established in the forthcoming the South El Camino Real General Plan Amendment, Chestnut/El Camino Specific Plan and the Zoning Ordinance Update. Initiation of these types of uses in the Moratorium Area would frustrate the City's efforts to establish comprehensive and cohesive plannir,~g strategies for the property. It would also be destructive to the goals of the proposed amended general plan, specific plan and zoning ordinance if, during the period that these documents are being studied and a subject of public hearings, parties seeking to evade the operation of these plans ar-d codes were permitted to operate in a manner that might defeat in whole or in part the ultimate objective of the General Plan Amendment, Specific Plan, or Zoning Ordinance Update. Accordingly, approval of entitlements for such uses presents a current and immediate threat to the public health, safety, and welfare. 4. Compliance with California Environmental Quality Act (CEQA). This ordinance is not a "project" within the meaning of section 15378 of the State CEQA Guidelines, because it has no potential for resulting in a direct or reasonably foreseeable indirect physical change in the environment. It temporarily prevents certain physical changes in the environment pending completion of the City's planning for the Moratorium Area. Furthermore, this urgency ordinance is categorically exempt from CEQA under Guidelines section 15308 because it is a regulatory action taken by the City, in accordance with Government Code section 65858, to assure maintenance and protection ofd the environment pending completion of the City's planning for the Moratorium Area. 5. Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid., the remainder of the 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 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 unenforcf;able. 6. Effective Date. This ordinance shall become effective immediately upon adoption, if adopted by at least four-fifths vote of the City Council, and shall be in effect for forty-five (45) days from the date of adoption, unless extended by the City Council as provided for in Government Code section 65858. Introduced and adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City Council held the _ day of June, 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this day of June, 2009. 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