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HomeMy WebLinkAboutED TransBay Cable AmendmentCITY OF���/� Department: Economic Development Prepared by: Stephanie Lovette, E t Man Agenda Item No: 3 d. Meeting Date: March 5, 2012 City Manager Approval:,,', /f I SUBJECT: Resolution Approving and Authorizing the Mayor to execute a First Amendment to the Lease Agreement with Trans Bay Cable, LLC of a Portion of Submerged Bay lands held by the City of San Rafael as Granted Lands from the State of California for the purpose of the Construction, Installation, Operation, Maintenance and Use of a Submarine High Voltage Direct Current Transmission Line RECOMMENDATION: Adopt resolution. BACKGROUND: Pursuant to the authority of Chapter 83, Statutes of 1923, the State of California granted to the City all the rights, title and interest to all marsh, tide and submerged lands within the boundaries of the City, to be held in trust for the State of California. Part of this area is out in the Bay, several miles off the shoreline. On December 29, 2006, the City entered into a Lease with Trans Bay Cable, LLC for a portion of the granted lands that is 11 feet wide and 2.29 miles long. It was to be used for the placement of a submarine cable ten inches in diameter, consisting of a power transmission cable, a return cable and a fiber optic communication cable. The cable extends from the City of Pittsburg to San Francisco. At the time the lease was executed, the location of the cable was based upon projected coordinates. The installation of the cable has been completed in accordance with the terms and conditions of the lease; the lessee needs to amend and correct the lease by replacing the projected coordinates with as -built coordinates. ANALYSIS: No changes to the terms and conditions of the lease are proposed. This is a housekeeping action FISCAL IMPACT: No fiscal impact to the City. Trans Bay Cable LLC pays an annual lease amount to the City. OPTIONS: • Adopt the resolution • Amend the resolution ACTION REQUIRED: Adopt the resolution FOR CITY CLERK ONLY File No.: 2-10 Council Meeting: Disposition: RESOLUTION NO. 13297 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE LEASE AGREEMENT WITH TRANS BAY CABLE, LLC OF A PORTION OF SUBMERGED BAY LANDS HELD BY THE CITY OF SAN RAFAEL AS GRANTED LANDS FROM THE STATE OF CALIFORNIA FOR THE PURPOSE OF THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE AND USE OF A SUBMARINE HIGH VOLTAGE DIRECT CURRENT TRANSMISSION LINE WHEREAS, pursuant to the authority of Chapter 83, Statutes of 1923, the State of California has granted to the City of San Rafael all the rights, title and interest to all marsh, tide and submerged lands within the boundaries of the City, to be held in trust for the State of California; and WHEREAS, under said legislation, the City has the authority to lease said granted lands or portion thereof, for limited periods, for purposes consistent with the public trust in which said lands are held; and WHEREAS, pursuant to such authority, on December 29, 2006, the City entered into a Lease with Trans Bay Cable, LLC ("Lessee") of a portion of certain submerged lands located in San Francisco and San Pablo Bays (the "Leased Lands"), all as more particularly set forth and authorized in City Council Resolution No. 12176 adopted December 18, 2006 and incorporated herein by this reference; and WHEREAS, the Lease was recorded in the Recorder's Office of the County of Marin on December 29, 2006 as Document Number 2006122900097; and WHEREAS, the Lease authorized Lessee to construct on the Leased Lands one (1) submarine cable not to exceed ten (10) inches in diameter, consisting of a power transmission cable, a return cable and a fiber optic communication cable, on the further terms and conditions set forth in the Lease (as further described in the Lease, the "Authorized Improvements"); and WHEREAS, at the time the Lease was executed, the location of the Authorized Improvements to be installed upon the Leased Lands was based upon projected coordinates provided by Lessee (the "Projected Coordinates"); and WHEREAS, the installation of the Authorized Improvements has been completed in accordance with the terms and conditions of the Lease; and WHEREAS, the Cite and Lessee now desire to amend and correct the Lease by replacing the Projected Coordinates with as -built coordinates to reflect the actual location of the Authorized Improvements installed upon the Leased Land, which as -built coordinates have been prepared at the request of Lessee by a person authorized to practice land surveying in California, in accordance with the requirements of the Lease; and WHEREAS, pursuant to Section 4(0)(5) of the Lease, the terms, covenants and conditions of the Lease may be amended, revised or supplemented only by mutual written agreement of the parties. NOW THEREFORE, BE IT RESOLVED that the City Council hereby approves and authorizes the Mayor to execute, on behalf of the City of San Rafael, a "First Amendment to Lease" with Trans Bay Cable LLC, in the form attached hereto as Attachment "1" and incorporated herein by this reference. 1, ESTHER BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday, the 5th day of March, 2012, by the following vote, to wit: AYES: COUNCILMEMBERS: Connolly, Heller, Levine, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None N ESTHER BEIRNE, City Clerk RECORDED AT THE REQUEST OF ESTHER C. BEIRNE, City Clerk AND WHEN RECORDED MAIL TO: ESTHER C. BEIRNE, City Clerk City of San Rafael P.O. Box 151560 San Rafael, CA 94915-1560 Document entitled to free recordation pursuant to Government Code Section 27383 SPACE ABOVE THIS LINE FOR RECORDER'S USE APN 184-010-17 County: Marin FIRST AMENDMENT TO LEASE THIS FIRST AMENDMENT TO LEASE (this "Amendment") is by and between The CITY OF SAN RAFAEL, hereinafter referred to as "Lessor", acting by and through the CITY COUNCIL OF THE CITY OF SAN RAFAEL, pursuant to and in accordance with the provisions of the Charter and ordinances of the City of San Rafael and the laws of the State of California, and TRANS BAY CABLE, a Delaware limited liability company, hereinafter referred to as "Lessee" (Lessor and Lessee collectively, the "Parties"). RECITALS A. The Parties entered into that certain Lease Agreement dated December 29, 2006 (the "Lease") for right of way use by Lessee of Lessor's submerged lands, granted to Lessor by the State of California and held in trust by Lessor pursuant to Chapter 83 Statutes of 1923, which are located in the San Rafael Bay portion of San Pablo and San Francisco Bays, within the city limits of the City of San Rafael, County of Marin, as further described in Section 3 of the Lease (the "Leased Lands"), for the construction thereon by Lessee of one (1) submarine cable not to exceed ten (10) inches in diameter, consisting of a power transmission cable, a return cable and a fiber optic communication cable, on the further terms and conditions set forth in the Lease (as further described in the Lease, the "Authorized Improvements"). B. The Lease was recorded in the Recorder's Office of the County of Marin on December 29, 2006 as Document Number 2006122900097 (the "Official Records"). C. At the time the Lease was executed, the location of the Authorized Improvements to be installed upon the Leased Lands was based upon projected coordinates provided by Lessee (the "Projected Coordinates"). The installation of the Authorized Improvements was completed in accordance with the terms and conditions of the Lease. D. The Parties desire to amend the Lease to replace the Projected Coordinates with as -built coordinates to reflect the actual location of the Authorized Improvements installed upon the Leased Land, which have been prepared at the request of Lessee by a person authorized to practice land surveying in California, in accordance with the requirements of the Lease. E. Pursuant to Section 4(0)(5) of the Lease, the terms, covenants and conditions of the Lease may be amended, revised or supplemented only by mutual written agreement of the parties. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration the Parties agree as follows: Recitals. The above Recitals are incorporated herein by reference as if set forth at length. 2. Capitalized Terms. Capitalized terms used but not otherwise defined in this Amendment shall have the respective meanings assigned to such terms in the Lease. 3. Amendment. The provisions of Section 3 of the Lease are hereby deleted in their entirety and replaced with the legal description for the Leased Lands attached to this Amendment as Exhibit "A" (the "Revised City of San Rafael Leased Lands Description"). 4. Recordation. Each of the parties hereby agrees that a fully executed and acknowledged original copy of this Amendment shall be recorded in the Official Records. 5. Miscellaneous. Except as provided in this Amendment, the Lease is unchanged, and all terms and conditions of the Lease are and shall remain in full force and effect and shall be binding upon the parties in accordance with its terms. In the event of any conflict between the provisions of this Amendment and the Lease in existence prior to the effectiveness of this Amendment, the provisions of this Amendment shall control. CITY OF SAN RAFAEL. This Amendment shall become effective only when approved by the City Council of the City of San Rafael and executed on behalf of Lessor by the Mayor of the City of San Rafael and a duly executed copy has been delivered to Lessee. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date hereafter affixed. LESSEE: TRANS BAY CABLE LLC �Nam� Title: O LESS( CITY By: Name: Title: Date: .&.29 / I ? Date: ACKNOWLEDGEMENT: This Amendment was authorized by the City of San Rafael on: March 5 2012 (Month Day Year) By City Council Resolution No: 13297 ATTEST: ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN,Jtity Attorney CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of�.� �,-f1V,CiS On `" 2-11 '�� before me, b�� Date Here Insert ame and Title of the Officer personally appeared CIVIL CODE § 1189 Name(s) of Signer(s) r who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. i.� ALISA MARIE GRANGE m"O'l Commission * 1920572 1 certify under PENALTY OF PERJURY under the z �+� Notary Public - California laws of the State of California that the foregoing San Francisco County - paragraph is true and correct. My Comm. Expires Jan 6, 2015 WITNESS my h d official seal. Signature: Place Notary Seat Above , OPTIONSignature of Notary Public AL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: __ Capacity(ies) Claimed by Signer(s) Signer's Name: _ Sig Corporate Officer -- Title(s): Individual Partner Limited i General i T,3p , .nurr,b here Attorney in Fact j Trustee Guardian or Conservator Other: ner Is Representing Number of Pages: Signer's Name: _ _ Corporate Officer— Title(s): Individual EV14flafellmt Partner — ? Limited General Top of tnu, r here Attorney in Fact Trustee Guardian or Conservator Other: d Signer Is Representing: 2010 Natona! Naar- Association « NaticnalNotarr.org rU;7-US NOTARY ,'-8r10-8'6-6827) item, �15?07 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of H -A 14- 3 a '.'I- before me, On ek_9090Jaj A�3 �adll_ Date Here Insert Name and Title of the Officer personally appeared Name(s) of Signer(s) CIVIL CODE § 1189 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)(j9are subscribed to the within instrument and acknowledged to me that (&she/they executed the same in ;ier/their authorized capacity(ies), and that by her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. E. BEIRNE COMM, #1936401 1 certify under PENALTY OF PERJURY under the NOTARY PURLIC-CALIFORNtA laws of the State of California that the foregoing MARIN CCU" 0 paragraph is true and correct. My Cam M, Expires June 10, 2015 .1 WITNESS my hand and official seal. Signature: A�1. Place Notary Seat Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: _ Capacity(ies) Claimed by Signer(s) Signer's Name: Corporate Officer— Title(s): Individual Partner — , Limited General I Tm of ,tum i, Attorney in Fact ii Trustee Guardian or Conservator Other: Signer Is Representing: Number of Pages: Signer's Name: Corporate Officer — Title(s): Individual Partner — , Limited General TcPo4trot, r_ here Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: r' 2CI 0 Nat,onal Notary Assoc.at�on - NationaiNofarv.org - 1 -800 -US NOTARY ?1-800-8'6-6827) Iter -5907 EXHIBIT A REVISED CITY OF SAN RAFEL LEASED LANDS DESCRIPTION [Attached] RBF CONSULTING 500 Ygnacio Valley Road, Suite 270 Walnut Creek, California 94596 Date: 10/21/2011 JN: 35-101146.001 LEGAL DESCRIPTION All that submerged land in San Pablo Bay, San Pablo Strait and San Francisco Bay located within the City Limits of the City of San Rafael in the County of Marin, State of California, a strip of land 11.00 feet in width, the centerline of which described as follows: BEGINNING at a point on the southerly city limit line of the City of San Rafael, said point also being described as having CCS83 (Epoch 2004.0), Zone 3 coordinates of Northing 2170091.09 feet and Easting 5999369.71 feet; thence northerly along said centerline through the following sixteen (16) angle points: # Northing Easting 1 2170142.60 5999370.77 2 2170345.28 5999357.71 3 2171187.82 5999365.56 4 2172996.49 5999394.51 5 2173874.92 5999412.25 6 2174736.02 5999417.69 7 2174935.91 5999480.38 8 2175146.68 5999579.03 9 2175981.72 5999929.87 10 2176275.84 6000053.19 11 2177337.27 6000285.30 12 2177605.86 6000347.78 13 2179171.32 6000687.96 14 2180393.85 6000861.98 15 2181209.54 6000982.35 16 2181969.23 6001096.97 H:tPDATA'%351011461Admin�legals\1 1461eg002 San Rafael.doc Page 1 of 2 Said strip of land shall be lengthened or shortened so as to terminate southerly in the southerly city limit line of the City of San Rafael and terminate northerly in the northerly city limit line of the City of San Rafael. EXCEPTING THEREFROM any portions lying within the jurisdictional limits and control of California State Lands. SUBJECT TO all Covenants, Rights, Rights -of -Way and Easements of record. M. LA BUSP ir CL a U 7030 7-"bani6l W. Bustamante, P.L.S. 7030 HAPDATA,,351011461,Adrnin\1ega1s\1 1461eg002 San Rafael.doc Page 2 of 2 Omit f INSTRUCTIONS: DEPARTMENT: CITY OF SAN RAFAEL USE THIS FORM WITH EACH SUBMITTAL OF A CONTRACT, AGREEMENT, ORDINANCE OR RESOLUTION BEFORE APPROVAL BY COUNCIL / AGENCY. Katie Korzun Economic development_ Feb 22, 2012 TITLE OF DOCUMENT: SRRA / SRCC AGENDA ITEM NO. 3 - DATE OF MEETING: March 5, 2012 RECE-11VE., FEB 22 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE LEASE AGREEMENT WITH TRANS BAY CABLE, LLC OF A PORTION OF SUBMERGED BAY LANDS HELD BY THE CITY OF SAN RAFAEL AS GRANTED LANDS FROM THE STATE OF CALIFORNIA FOR THE PURPOSE OF THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE AND USE OF A SUBMARINE HIGH VOLTAGE DIRECT CURRENT TRANSMISSION LINE ?f It 2w lalL Depart ent Head (signature) (LOWER HALF OF FORM FOR APPROVALS ONLY) APPROVED AS COUNCIL / AGENCY APPROVED AS TO FORM: AGENDA ITEM: City Manager (signature) City Attorney (signature