HomeMy WebLinkAboutCC Resolution 12176 (Submarine High Voltage Direct Current Transmission)RESOLUTION NO. 12176
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE
A LEASE AGREEMENT WITH TRANS BAY CABLE LLC FOR
THE LEASE OF A PORTION OF THE SAN RAFAEL BAY 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 by 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 trust upon which said
lands are held by the State of California; and
WHEREAS, the State Lands Commission has negotiated a lease of a portion of its
submerged lands located in San Francisco and San Pablo Bays to Trans Bay Cable, LLC for the
purpose of constructing, installing, operating, maintaining and using a submerged cable for the
transmission of electricity and for fiber optic transmissions between Pittsburgh, CA and San
Francisco; and
WHEREAS, a portion of Trans Bay Cable's proposed submerged cable will cross over
granted lands, which the City holds in trust pursuant to Chapter 83 Statutes of 1923; and,
WHEREAS, Trans Bay Cable LLC wishes to lease a portion of the City's granted lands
for the construction, installation, operation, maintenance and use of a submerged cable for the
transmission of electricity and for fiber optic transmissions between Pittsburgh, CA and San
Francisco; and
WHEREAS, because the City holds the lands in trust for the State of California and does
not own the property in fee, the procedures for the leasing of City owned land as set in Article III
Section 12 of the City Charter are not applicable; and
WHEREAS, the City has determined that the placement and operation of a submerged
cable for the transmission of electricity and for fiber optic transmissions is consistent with and
will not interfere with the City's responsibility to protect the public trust and enhance the rights
of the general public to use the tide and submerged lands and waterways for harbors, water
related commerce, navigation, fisheries and water -related recreation and open space; and
WHEREAS, the City of Pittsburg, California, acting in their capacity as Lead Agency
for the entire Trans Bay Cable Project, certified an environmental impact report (EIR) (SCN
2004082069) concerning this project, on November 6, 2006, and the City of San Rafael, as a
responsible agency, considered the information contained in the EIR and determined that there
would be no significant impacts in the San Rafael trust area.
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The City Council hereby approves and authorizes the Mayor to execute, on behalf of the
City of San Rafael, a lease with Trans Bay Cable LLC, of a portion of submerged lands in San
Rafael Bay held by the City of San Rafael as granted lands from the State of California, for the
construction, installation, operation, maintenance and use of a submerged cable for the
transmission of electricity and for fiber optic transmissions, a copy of which is hereby attached
and by this reference made a part hereof.
I, JEANNE M. LEONCINI, 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 Mondav, the 18th day of December, 2006 by the following
vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS:
Cohen, Heller, Phillips and Mayor Boro
None
Miller
moi.
JE _ M. LEONC I, City Clerk
MARIN COUNTY
RECORrER
"f 2 9 '_006
RECORDED AT THE REQUEST OF
AND WHEN RECORDED MAIL TO:
CITY OF SAN RAFAEL
1400 Fifth Avenue
P.O. Box 151560
San Rafael, California 94915-1560
Document entitled to free recordation
pursuant to Government Code Section 27383
APN 184-010-17
County: Marin
LEASE
SECTION 1: BASIC PROVISIONS
Recorder's Office
County of
Marin
JOAN C. THAYER
Assessor -Recorder
2006-0080879
REC FEE
TOTAL
NO FEE
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2006122900097
AR83P5C91
Online. Anytime.
www.co.marin.ca.us
Requested by:
Public
SPACE ABOVE THIS LINE FOR RECORDERS USE
A. LEASE: 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 for consideration specified in this Lease, does hereby lease,
demise and let to:
TRANS BAY CABLE, LLC
hereinafter referred to as Lessee, whose mailing address is:
c/o Babcock & Brown LP
Two Harrison Street, 6th Floor
San Francisco, California, 94105
those certain lands described in Section 3 ("LEASED LANDS") subject to the reservations,
terms, covenants and conditions of this Lease.
B. LAND USE OR PURPOSE: Lessee shall use LEASED LANDS for construction,
installation, operation, maintenance and use of a submarine cable bundle (10 inches in diameter)
consisting of approximately 2.29 miles of high voltage direct current cable. The transmission
cable shall be comprised of a single transmission line that contains (i) one (1) approximately
five -inch high voltage direct current power cable, (ii) one (1) fiber optic cable, (iii) one (1)
approximately four -inch return cable, and (iv) other related improvements, including protective
mattresses or other protective cable covers, insulation, bedding, armor, sheaths, screens and
polypropylene rope, along with horizontal directional drill for the construction, installation,
operation, maintenance and use of the submarine cable bundle, as listed above.
C. LEASE TYPE: General Lease for Right of Way use
D. LAND TYPE: City of San Rafael submerged lands, granted to said City by the State
of California and held in trust by said City pursuant to Chapter 83 Statutes of 1923.
E. LOCATION: LEASED LANDS 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.
The specific description of LEASED LANDS is contained in Section 3 of this Lease.
F. TERM: The term of this Lease shall be for twenty-five (25) years, commencing on
January 1, 2007, and ending on January 1, 2032.
G. CONSIDERATION: Rent for the pre -construction period of this Lease shall be
$6,000 per annum. The pre -construction period of the Lease shall commence January 1, 2007
and shall terminate either upon commencement of construction activities of the cable or
January 1, 2009, whichever occurs first. Upon the start of construction within the Leased Lands,
rent shall be equal to the product obtained by multiplying $22,500 by a fraction, the numerator of
which is the CPI index then in effect and the denominator of which is the CPI index that was
effect as of January 1, 2007, said amount to be prorated for the year in which construction
commences. Rent shall be increased on January 1, 2008, and on January 1 every year thereafter
during the term of this Lease. From and after each adjustment date, the new rent shall be equal
to the product obtained by multiplying $22,500 ($6,000 during the pre -construction period) by a
fraction, the numerator of which is the CPI index then in effect and the denominator of which is
the CPI index that was in effect as of January 1, 2007. For purposes of this Lease, the CPI shall
mean the Consumer Price Index for all Urban Consumers, San Francisco -Oakland -San Jose
(1982-84 equals 100), of the United States Department of Labor, or the official successor of such
index. In addition to the annual adjustment, the Lessor may modify the rent amount as specified
in Section 4 Paragraph B.2 (Modifications). Lessor shall pay rent pursuant to Section 4
paragraph B1 (Rent).
H. AUTHORIZED IMPROVEMENTS: The Lessee is authorized to construct 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 as described in Paragraph 113, above.
I. CONSTRUCTION: Construction of the authorized improvements may begin on
January 1, 2007 and shall be completed no later than January 1, 2012.
J. INSURANCE: Lessee shall obtain and maintain during the term of this Lease, at no
cost to Lessor, a comprehensive general liability insurance policy in an amount of ten million
dollars ($10,000,000.00) combined single limit. Insurance policy shall comply with the terms
and conditions specified herein.
K. SURETY BOND OR OTHER SECURITY: Lessee shall obtain and maintain
during the term of this Lease a surety bond in an amount of one million dollars ($1,000,000.00).
Surety bond shall comply with the terms and conditions specified herein.
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SECTION 2: SPECIAL PROVISIONS
A. LESSEE AS PRINCIPAL: Lessee has entered into this Lease as a principal, and
not in the capacity of agent for any third party. Furthermore, it is understood and agreed that no
person or entity other than Lessee and those holding an interest in the premises with formal
approval of Lessor in accordance with Section 4 Paragraph J (Assignment, Encumbrancing and
Subletting) shall acquire any interest in the LEASED LANDS or enforceable rights under the
Lease.
B. LESSEE TO CONSTRUCT ONLY AUTHORIZED IMPROVEMENTS: Lessee
is authorized to construct, operate, and maintain only those improvements listed in Section 1
Paragraph B (Land Use or Purpose). In accordance with the provisions of Section 4,
Paragraph D.3 (Additions, Alterations and Removal), Lessee shall secure the written consent of
Lessor prior to any additions to or alteration or modification of the improvements authorized
hereunder.
C. CONFORMANCE OF LEASED LANDS DESCRIPTION: Lessee agrees that the
description of the LEASED LANDS contained in Section 3 (Leased Lands) of this Lease is
based upon information provided by Lessee prior to installation of the improvements. In the
event any portion of the improvements are installed outside of the LEASED LANDS, Lessee
shall within one hundred twenty (120) days of completion of the project provide to Lessor an
amended description of the LEASED LANDS, prepared by a person authorized to practice land
surveying in California, that correctly reflects the location of the installed improvements.
D. MODIFICATION OF BOND AND INSURANCE REQUIREMENTS: Lessor
will provide bond and insurance sixty days (60 days) prior to commencement of construction
within the LEASED LANDS. Lessor reserves the right to modify the bond and insurance
requirements effective on each fifth anniversary of the beginning date of this Lease including,
but not limited to, the ability to raise or lower the amount of the bond and insurance requirements
to commercial reasonable standards to the extent available in the marketplace at commercially
reasonable rates. No such modification shall become effective unless Lessee is given at least
thirty (30) days notice prior to the effective date of any modification to the bond or insurance
requirements.
E. LESSEE'S NONINTERFERENCE: Lessee shall exercise its rights under this
Lease so as to avoid, to the fullest extent reasonably possible, interference with the Lessor's use
of the LEASED LANDS or with the public's right to use LEASED LANDS for public trust
purposes, including without limitation, waterborne commerce, navigation, fishing, water -related
recreation, and habitat preservation.
F. LESSEE'S OBLIGATION TO OBTAIN THIRD PARTY CONSENT: In the
event that the facilities and improvements to be installed under this Lease will cross any facility
or improvements owned by a person or entity other than Lessee and subject to a pre-existing
agreement with the Lessor, Lessee shall use its commercially reasonable efforts to secure and
maintain the written consent to cross such facility or improvement from the owner thereof.
Lessee shall file with Lessor copies of all such consents, together with any agreements between
Lessee and third parties pertaining to the crossing of facilities and improvements located within
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LEASED LANDS. The rights granted hereunder shall be exercised so as to minimize, to the
fullest extent reasonably possible, interference with such third -party facilities and improvements.
G. TERMINATION. Lessee may terminate lease with sixty (60) days' written notice to
Lessor prior to commencement of construction activities within the LEASED LANDS. In the
event of the termination of this Lease, prior to construction from any cause whatsoever, the
annual rent paid in advance shall be prorated between Lessor and Lessee.
H. LESSEE'S OBLIGATION TO SUBMIT CONSTRUCTION DOCUMENTS: At
least sixty (60) days prior to commencement of construction activities in the LEASED LANDS,
Lessee shall provide Lessor with the following documents:
1. A copy of the latest construction schedule timeline chart.
2. A project specific hazardous spill contingency plan, with specific designation of the
onsite person who will have the responsibility of implementing the plan. The spill
plan is to include potential minor and major scenarios, preventive measures,
equipment available onsite, spill notification protocol and procedures, etc. The
primary work vessel shall carry on board 400 ft. of sorbent boom, five bales of
sorbent pads at least 18" x 18" square and a small powered boat for rapid deployment
to contain and clean up any small spill or sheen on the water surface. The plan needs
to also provide for the call out of additional spill containment and clean up resources
in the event of an accident that exceeds the rapid clean up capability of the onsite
work force. In the event of an oil spill during construction that impacts State or local
waters, in addition to U.S. Coast Guard, notification shall also be provided as soon as
possible to the State Office of Emergency Services at (800) 852-7550, to State's
response number (562) 590-5201 and to Lessor's response number 415-485-1515.
3. A critical operations and curtailment plan for work vessels operating in LEASED
LANDS. The plan is to define the limiting conditions of sea state, wind, or any other
weather conditions that exceed the safe operation of the vessels and equipment or
divers in the water, that hinder potential spill cleanup or in any way pose a threat to
personnel, the safety of the environment or safety of the public. The plan needs to
provide for a minimum ongoing five (5) day advance favorable weather forecast
during operations. The plan also needs to identify the onsite person with authority to
determine critical conditions and suspend the work operations when needed.
I. POST INSTALLATION PLAN: Lessee shall provide Lessor with a copy of the post
installation monitoring, maintenance, and inspection program.
J. POST COMPLETION DOCUMENTS: Within one hundred twenty (120) days of
completion of the Project, Lessee shall provide the following information and/or documents to
Lessor:
1. Two complete sets of "as -built" plans certified by a California registered Civil
Engineer, showing the final plan and profiles of the facilities, including specific
location of CABLE, in the LEASED LANDS, and all field changes or other
modifications to the plans as originally approved for construction.
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2. A post construction written report confirming completion in accordance with the
approved plans, describing any field changes with the justification, any accidents or
spills affecting the waterway and corrective measures taken, and any other
extraordinary conditions that occurred during the course of the Project.
3. All future repairs, structural modifications or abandonment/removal of the facilities
within the LEASED LANDS will require prior review and approval by Lessor's
engineering staff. Abandonment or removal shall also be consistent with the
requirements of Section 4 Paragraph D.1 (Continuous Use).
4. In the event of any unusual or emergency circumstance arising from activities on or
directly in connection with activities on the LEASED LANDS which have resulted in
or may give rise to the imminent threat, danger or impact to public health or safety or
to the environment and which may be avoided or mitigated by immediate repairs,
Lessee shall contact Lessor by telephone as soon as practicable. Upon the verbal
consent of Lessor, Lessee shall take any and all necessary and appropriate actions
and/or repairs. In emergencies, Lessor may be contacted at 415-485-1515 (24 hours),
unless Lessor notifies Lessee in writing of another contact number. In the event that
the threat, danger or impact is such that the requirement for Lessee's telephone call to
obtain prior consent of Lessor is not practicable, then Lessee may carry out all
necessary and appropriate actions, whether or not prior Lessor consent is obtained.
Lessee shall notify Lessor of such threat, danger or impact and all actions taken to
avoid or mitigate same, as soon as practicable.
K. LESSEE TO COMPLY WITH EIR MONITORING AND MITIGATION:
Lessee shall fully carry out, implement and comply with all mitigation measures and reporting
obligations identified and set forth in the document entitled "Environmental Impact Report for
the Proposed Trans Bay Cable Project", State Clearinghouse number 2004082096, as approved
by the City of Pittsburg, the Lead Agency for CEQA purposes, on November 6, 2006.
L. RESTORATION OF LEASED LANDS UPON TERMINATION OF LEASE:
Lessee shall comply with the provisions of Section 4 Paragraph L (Restoration of Leased Lands).
M. CONFLICTING PROVISIONS: In the event of any conflict between the
provisions of Section 2 and Section 4 of this Lease, the provisions of Section 2 shall prevail.
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SECTION 3: LEASED LANDS
CITY OF SAN RAFAEL
LEASED LANDS 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,
described as follows:
A strip of land 11.00 feet in width, the centerline of which is described as BEGINNING at a
point on the northerly city limit line of the City of San Rafael, said point being also described as
having CCS83, Zone 3 coordinates: East x-coordinate = 6001125.5210 feet, North y-coordinate
2181861.2893 feet; thence along said centerline through the following fifteen (15) angle points:
GEOGRAPHIC
COORDINATES
GCS North America 1983 Datum
[Dec. Deg]
POI
NT LATITUDE LONGITUDE
206 37.971030 -122.444717
207 37.968630 -122.445083
208 37.966080 -122.445633
209 37.963320 -122.446083
210 37.960920 -122.446800
211 37.958570 -122.447550
212 37.956320 -122.448350
213 37.953970 -122.449100
214 37.951430 -122.450083
215 37.949030 -122.450150
216 37.946300 -122.449967
217 37.943950 -122.450017
218 37.941620 -122.450017
219 37.939020 -122.449900
220 37.936670 -122.449967
the terminus of said centerline.
PROJECTED COORDINATES
California State Plane Zone 3 NAD 1983 [ft] DISTANCE
EXCEPTING therefrom any portions lying within the jurisdictional limits and control of
California State Lands.
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FROM
PREVIOUS
POINT [ft]
EASTING
NORTHING
6001125.5210
2181861.2893
910.0
6001001.7057
2180989.7479
880.3
6000823.8894
2180064.6980
942.0
6000673.2948
2179062.5984
1013.4
6000448.5445
2178193.1599
898.0
6000214.5612
2177342.1264
882.6
5999966.9096
2176527.8010
851.2
5999732.8988
2175676.7724
882.6
5999430.1790
2174757.9774
967.4
5999392.7415
2173884.6457
874.1
5999424.8720
2172889.6743
995.5
5999392.6282
2172034.4460
855.8
5999374.9509
2171186.1988
848.4
5999388.8721
2170238.9562
947.3
5999351.8125
2169383.8297
855.9
EXCEPTING therefrom any portions lying within the jurisdictional limits and control of
California State Lands.
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SECTION 4: GENERAL PROVISIONS
A. GENERAL: These provisions are applicable to all leases, permits, rights-of-way,
easements, or licenses or other interests in real property conveyed by the City of San Rafael
("Lessor").
B. CONSIDERATION:
1. Rent. Lessee shall pay the annual rental as stated in this Lease to Lessor without
deduction, delay, or offset, on or before the beginning date of this Lease and on or
before each anniversary of its beginning date during each year of the Lease term.
Lessee shall pay rent annually to City of San Rafael, P.O. Box 151560, San
Rafael CA, 94915-1560, Attention Finance Department, and shall identify the
payment with the resolution number approving the lease.
2. Modification. Lessor may modify the method, amount, or rate of consideration
effective on each fifth anniversary of the beginning date of this Lease in
consultation with the California State Lands Commission. Should Lessor fail to
exercise such right effective on any fifth anniversary it may do so effective on any
one (1) of the next four (4) anniversaries following such fifth anniversary, without
prejudice to its right to effect such modification on the next or any succeeding
fifth anniversary. No such modification shall become effective unless Lessee is
given at least thirty (30) days notice prior to the effective date. This modification
is in addition to the annual CPI adjustment provided for under Section 1
Paragraph G (Consideration).
3. Penalty and Interest. Any installments of rent accruing under this Lease which
are not paid when due shall be subject to a penalty and shall bear interest as
specified in Public Resources Code Section 6224 and the Lessor's then existing
administrative regulations governing penalty and interest.
C. BOUNDARIES:. This Lease is not intended to establish the Lessor's boundaries and is
made without prejudice to either party regarding any boundary claims, which may be asserted
presently or in the future.
D. USE OF LEASED LANDS: Lessee shall use the LEASED LANDS only for the
purpose or purposes stated in this Lease and only for the operation and maintenance of the
improvements expressly authorized in this Lease. Lessee shall notify Lessor within ten (10) days
after commencing the construction of authorized improvements and within sixty (60) days after
completing them. Lessee's discontinuance of such use for a period of ninety (90) days shall be
conclusively presumed to be an abandonment.
1. Continuous Use. Lessor may terminate this lease upon ninety (90) days' prior
written notice in the event that Lessee, its successors, transferees or assignees
ceases to use its transmission line for the uses described herein for a continuous
period of four (4) years unless such cessation is (i) a transmission cessation, but the
transmission line is retained as part of the transmission reliability and load serving
capacity of the electrical system for the City and County of San Francisco, or
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(ii) due to factors outside the Lessee's reasonable control, in which case such period
is extended for two (2) years.
2. Repairs and Maintenance. Lessee shall, at its own expense, keep and maintain
the LEASED LANDS and all improvements in good order and repair and in safe
condition. Lessor shall have no obligation for such repair and maintenance.
3. Additions, Alterations, and Removal
a) Additions. No improvements other than those expressly authorized in this
Lease shall be constructed by the Lessee on the LEASED LANDS without the
prior written consent of Lessor.
b) Alteration or Removal. Except as provided under this Lease, no alteration or
removal of improvements on or natural features of the LEASED LANDS shall
be undertaken without the prior written consent of Lessor.
4. Toxics. Lessee shall not manufacture or generate hazardous wastes on the
LEASED LANDS unless specifically authorized under other terms of this Lease.
Lessee shall be fully responsible for any hazardous wastes, substances or materials
as defined under federal, state or local law, regulation, or ordinance that are
manufactured, generated, used, placed, disposed, stored, or transported on the
LEASED LANDS during the Lease term and shall comply with and be bound by
all applicable provisions of such federal, state or local law, regulation or ordinance
dealing with such wastes, substances or materials. Lessee shall notify Lessor and
all of the appropriate governmental emergency response agency(ies) immediately in
the event of any release or threatened release of any such wastes, substances, or
materials.
5. Enjoyment. Subject to the provisions of Paragraph E 1 b below, nothing in this
Lease shall preclude Lessee from excluding persons from the LEASED LANDS
when their presence or activity constitutes a material interference with Lessee's use
and enjoyment of the LEASED LANDS as provided under this Lease.
6. Discrimination. Lessee in its use of the LEASED LANDS shall not discriminate
against any person or class of persons on the basis of race, color, creed, religion,
national origin, sex, age, or handicap.
7. Residential Use. No portion of the LEASED LANDS shall be used as a location
for a residence or for the purpose of mooring a structure, which is used as a
residence. For purposes of this Lease, a residence or floating residence includes
but is not limited to boats, barges, houseboats, trailers, cabins, or combinations of
such facilities or other such structures, which provide overnight accommodations
to the Lessee or others.
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E. RESERVATIONS, ENCUMBRANCES, AND RIGHTS-OF-WAY:
1. Reservations
a) Lessor expressly reserves all natural resources in or on the LEASED LANDS,
including but not limited to timber and minerals as defined under Public
Resources Code Sections 6401 and 6407, as well as the right to grant leases in
and over the LEASED LANDS for the extraction of such natural resources;
however, such leasing shall be neither inconsistent nor incompatible with the
rights or privileges of Lessee under this Lease.
b) Lessor expressly reserves a right to go on the LEASED LANDS and all
improvements for any purpose associated with this Lease or for carrying out
any function required by law, or the rules, regulations or management policies
of the Lessor or the State Lands Commission. Lessor shall have a right of
reasonable access to the Lease Premises across Lessee owned or occupied
lands adjacent to the Lease Premises for any purpose associated with this
Lease.
c) Lessor expressly reserves to the public an easement for convenient access
across the LEASED LANDS to other State-owned or Lessor -owned lands
located near or adjacent to the LEASED LANDS and a right of reasonable
passage across and along any right-of-way granted by this Lease; however,
such easement or right- of -way shall be neither inconsistent nor incompatible
with the rights or privileges of Lessee under this Lease.
d) Lessor expressly reserves the right to lease, convey, or encumber the Lease
Premises, in whole or in part, during the Lease term for any purpose not
inconsistent or incompatible with the rights or privileges of Lessee under this
Lease.
2. Encumbrances. This Lease may be subject to pre-existing contracts, leases,
licenses, easements, encumbrances, and claims and is made without warranty by
Lessor of title, condition, or fitness of the land for the stated or intended purpose.
F. RULES, REGULATIONS, AND TAXES:
1. Lessee shall comply with and be bound by all presently existing or subsequently
enacted rules, regulations, statutes or ordinances of the Lessor, the State Lands
Commission or any other governmental agency or entity having lawful authority
and jurisdiction.
2. Lessee understands and agrees that a necessary condition for the granting and
continued existence of this Lease is that Lessee obtains and maintains all permits
or other entitlements.
3. Lessee accepts responsibility for and agrees to pay any and all possessory interest
taxes, assessments, user fees or service charges imposed on or associated with the
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leasehold interest, improvements on the LEASED LANDS, and such payment
shall not reduce rental due Lessor under this Lease and Lessor shall have no
liability for such payment.
G. INDEMNITY:
1. Lessor shall not be liable and Lessee shall indemnify, hold harmless and, at the
option of Lessor, defend Lessor, its officers, agents, and employees against and
for any and all liability, claims, damages or injuries of any kind and from any
cause, arising out of or connected in any way with the issuance, enjoyment or
breach of this Lease or Lessee's use of the LEASED LANDS except for any such
liability, claims, damage or injury solely caused by the negligence of Lessor, its
officers, agents and employees.
2. Lessee shall notify Lessor immediately in case of any accident, injury, or casualty
on the LEASED LANDS.
H. INSURANCE:
1. Lessee shall obtain and maintain in full force and effect during the term of this
Lease comprehensive general liability insurance and property damage insurance,
with such coverage and limits as may be reasonably requested by Lessor from
time to time, but in no event for less than the sum(s) specified, insuring Lessee
and Lessor against any and all claims or liability arising out of the ownership, use,
occupancy, condition or maintenance of the LEASED LANDS and all
improvements.
2. The insurance policy or policies shall name the State of California, the City of
San Rafael, their officers, employees and volunteers as insureds as to the
LEASED LANDS and shall identify the Lease by the City of San Rafael City
Council resolution Number approving the lease. Lessee shall provide Lessor with
a certificate of such insurance and an endorsement to the insurance policy adding
the additional named insureds as required above. Lessee shall keep such
certificate and endorsement current. The policy (or endorsement) must provide
that the insurer will not cancel the insured's coverage without thirty (30) days
prior written notice to Lessor. Lessor will not be responsible for any premiums or
other assessments on the policy. The coverage provided by the insured (Lessee)
shall be primary and non-contributing.
3. The insurance coverage specified in this Lease shall be in effect at all times during
the Lease term and subsequently until all of the LEASED LANDS have been
restored by Lessee as provided elsewhere in this Lease.
I. SURETY BOND:
1. Lessee shall provide a surety bond or other security device acceptable to Lessor, for
the specified amount, and naming Lessor as the assured, to guarantee to Lessor the
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faithful observance and performance by Lessee of all of the terms, covenants, and
conditions of this Lease. Surety shall be an insurer admitted in California.
2. Lessor may require an increase in the amount of the surety bond or other security
device to cover any additionally authorized improvements, alterations or purposes
and any modification of consideration.
3. The surety bond or other security device shall be maintained in full force and effect
at all times during the Lease term and subsequently until all of the LEASED
LANDS have been restored by Lessee as provided elsewhere in this Lease.
J. ASSIGNMENT, ENCUMBRANCING OR SUBLETTING: Lessee shall not either
voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this
Lease and shall not sublet the LEASED LANDS, in whole or in part, or allow any person other
than the Lessee's employees, agents, servants and invitees to occupy or use all or any portion of the
LEASED LANDS without the prior written consent of Lessor, which consent shall not be
unreasonably withheld.
1. The following shall be deemed to be an assignment or transfer within the meaning
of this Lease:
a) If Lessee is a corporation, any dissolution, merger, consolidation or other
reorganization of Lessee or sale or other transfer of a percentage of capital stock
of Lessee which results in a change of controlling persons, or the sale or other
transfer of substantially all the assets of Lessee;
b) If Lessee is a partnership, a transfer of any interest of a general partner, a
withdrawal of any general partner from the partnership, or the dissolution of the
partnership.
2. If Lessee desires to assign, sublet, encumber or otherwise transfer all or any portion
of the LEASED LANDS, Lessee shall do all of the following:
a) Give prior written notice to Lessor;
b) Provide the name and complete business organization and operational
structure of the proposed assignee, sublessee, secured third party, or other
transferee; and the nature of the use of and interest in the LEASED LANDS
proposed by the assignee, sublessee, secured third party or other transferee. If
the proposed assignee, sublessee, or secured third party is a general or limited
partnership, or a joint venture, provide a copy of the partnership agreement or
joint venture agreement, as applicable;
c) Provide the terms and conditions of the proposed assignment, sublease, or
encumbrance or other transfer;
d) Provide audited financial statements for the two most recently completed
fiscal years of the proposed assignee, sublessee, secured party or other
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transferee; and provide pro forma financial statements showing the projected
income, expense and financial condition resulting from use of the LEASED
LANDS; and
e) Provide such additional or supplemental information as Lessor may
reasonably request concerning the proposed assignee, sublessee, secured party
or other transferee.
f) Lessor will evaluate proposed assignees, sublessees, secured third parties and
other transferees and grant approval or disapproval according to standards of
commercial reasonableness considering the following factors within the
context of the proposed use: the proposed party's financial strength and
reliability, their business experience and expertise, their personal and business
reputation, their managerial and operational skills, their proposed use and
projected rental, as well as other relevant factors.
3. Lessor shall have a reasonable period of time from the receipt of all documents
and other information required under this provision to grant or deny its approval
of the proposed party.
4. Lessee's mortgage or hypothecation of this Lease is subject to the prior approval
of Lessor, and shall be subject to terms and conditions attached to the approval.
5. Upon the express written assumption of all obligations and duties under this Lease
by an assignee approved by Lessor, the Lessee may be released from all liability
under this Lease arising after the effective date of assignment and not associated
with Lessee's use, possession or occupation of or activities on the LEASED
LANDS; except as to any hazardous wastes, substances or materials as defined
under federal, state or local law, regulation or ordinance manufactured, generated,
used, placed, disposed, stored or transported on the LEASED LANDS.
6. If the Lessee files a petition or an order for relief is entered against Lessee, under
Chapters 7, 9, 11 or 13 of the Bankruptcy Code (11 USC Sect. 101, et seq.) then
the trustee or debtor-in-possession must elect to assume or reject this Lease within
sixty (60) days after filing of the petition or appointment of the trustee, or the
Lease shall be deemed to have been rejected, and Lessor shall be entitled to
immediate possession of the LEASED LANDS. No assumption or assignment of
this Lease shall be effective unless it is in writing and unless the trustee or debtor-
in-possession has cured all defaults under this Lease (monetary and non -
monetary) or has provided Lessor with adequate assurances (1) that within ten
(10) days from the date of such assumption or assignment, all monetary defaults
under this Lease will be cured; and (2) that within thirty (30) days from the date
of such assumption, all non -monetary defaults under this Lease will be cured; and
(3) that all provisions of this Lease will be satisfactorily performed in the future.
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K. DEFAULT AND REMEDIES
1. Default. The occurrence of any one or more of the following events shall
immediately and without further notice constitute a default or breach of the Lease
by Lessee:
a) Lessee's failure to make any payment of rental, royalty, or other consideration
as required under this Lease;
b) Lessee's failure to obtain or maintain liability insurance or a surety bond or
other security device as required under this Lease;
e) Lessee's vacation or abandonment of the LEASED LANDS (including the
covenant for continuous use as provided for in Section 4 Paragraph D1
(Continuous Use)) during the Lease term;
d) Lessee's failure to obtain and maintain all necessary governmental permits or
other entitlements;
e) Lessee's failure to comply with all applicable provisions of federal, state or
local law, regulation or ordinance dealing with hazardous waste, substances or
materials as defined under such law;
f) Lessee's failure to commence to construct and to complete construction of the
improvements authorized by this Lease within the time limits specified in this
Lease; and/or
g) Lessee's failure to comply with applicable provisions of federal, state or local
laws or ordinances relating to issues of Health and Safety, or whose purpose is
to conserve resources or to protect the environment.
2. Failure to Perform. Lessee's failure to observe or perform any other term,
covenant or condition of this Lease to be observed or performed by the Lessee
when such failure shall continue for a period of thirty (30) days after Lessor's
giving written notice, shall also constitute a default or breach of this lease;
however, if the nature of Lessee's default or breach under this paragraph is such
that more than thirty (30) days are reasonably required for its cure, then Lessee
shall not be deemed to be in default or breach if Lessee commences such cure
within such thirty (30) day period and diligently proceeds with such cure to
completion.
3. Remedies. In the event of a default or breach by Lessee and Lessee's failure to
cure such default or breach, Lessor may at any time and with or without notice do
any one or more of the following:
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a) Re-enter the LEASED LANDS, remove all persons and property, and
repossess and enjoy such premises;
b) Terminate this Lease and Lessee's right of possession of the LEASED
LANDS. Such termination shall be effective upon Lessor's giving written
notice and upon receipt of such notice, Lessee shall immediately surrender
possession of the LEASED LANDS to Lessor;
c) Maintain this Lease in full force and effect and recover any rental, royalty, or
other consideration as it becomes due without terminating Lessee's right of
possession regardless of whether Lessee shall have abandoned the LEASED
LANDS; and/or
d) Exercise any other right or remedy, which Lessor may have at law or equity.
L. RESTORATION OF LEASED LANDS:
1. Upon expiration or sooner termination of this Lease, Lessee shall, subject to
subparagraph 3 below remove all portions of CABLE, all related facilities and
structures and all material or structures within the LEASED LANDS, including
fills, in accordance with the methods and schedule of a cable removal plan
developed and paid for by Lessee pursuant to subparagraphs 2 and 3 below, as
that plan is approved by Lessor.
2. The Lessee shall submit a final cable removal plan to the Lessor and to all
appropriate agencies and governmental entities eighteen (18) months prior to the
expiration or sooner termination of this Lease. The plan must contain the
following:
a) A detailed description of the methods to be employed to remove the cable and
all other improvements listed in subsection 1 immediately above, including
their ultimate dispositions;
b) Supplemental environmental information that addresses any differences
between the impacts described and analyzed in the EIR and the planned
removal operations, to enable Lessor to comply with applicable state, federal
and local laws and regulations;
c) A schedule for completion of the removal of the cable within ninety (90) days
following the expiration or sooner termination of this Lease, unless that term
is extended in writing by Lessor; and
d) Identification of the entities to be employed to execute the cable removal plan.
3. The Lessor may choose to direct Lessee to leave all or part of the improvements
within the LEASED LANDS in place. Should that occur, Lessee shall deliver to
Lessor such documentation as may be necessary to convey title to such remaining
-14-
improvements to Lessor free and clear of any liens, mortgages, loans or other
encumbrances.
M. QUITCLAIM: Lessee shall, within ninety (90) days of the expiration or sooner
termination of this Lease, execute and deliver to Lessor in a form provided by Lessor a good and
sufficient release of all rights under this Lease. Should Lessee fail or refuse to deliver such a
release, a written notice by Lessor reciting such failure or refusal shall, from the date of its
recordation, be conclusive evidence against Lessee of the termination of this Lease and all other
claimants.
N. HOLDING -OVER: Any holding -over by Lessee after the expiration of the Lease
term, with or without the express or implied consent of Lessor, shall constitute a tenancy from
month to month and not an extension of the Lease term and shall be on the terms, covenants, and
conditions of this Lease, except that the annual rental then in effect shall be increased by twenty-
five percent (25%).
O. ADDITIONAL PROVISIONS
1. Waiver.
a) No term, covenant, or condition of this Lease and no default or breach of any
such term, covenant or condition shall be deemed to have been waived, by
Lessor's acceptance of a late or nonconforming performance or otherwise,
unless Lessor expressly acknowledges such a waiver in writing.
b) Any such waiver shall not be deemed to be a waiver of any other term,
covenant or condition of any other default or breach of any term, covenant or
condition of this Lease.
2. Time. Time is of the essence of this Lease and each and all of its terms,
covenants or conditions in which performance is a factor.
3. Notice. All notices required to be given under this Lease shall be given in
writing, sent by U.S. Mail with postage prepaid, to Lessor at City of San Rafael,
Office of the City Manager, City Hall, 1400 Fifth Avenue Room 203, San Rafael,
California 94915, and the Lessee at the address specified in this Lease. Lessee
shall give Lessor notice of any change in its name or address.
4. Consent. Where Lessor's consent is required under this Lease its consent for one
transaction or event shall not be deemed to be consent to any subsequent
occurrence of the same or any other transaction or event.
5. Changes. This Lease may be terminated and its term, covenants and conditions
amended, revised or supplemented only by mutual written agreement of the
parties.
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6. Successors. The terms, covenants and conditions of this Lease shall extend to, be
binding upon, and inure to the benefit of the heirs, successors, and assigns of the
respective parties.
7. Joint and Several Obligation. If more than one Lessee is a party to this Lease,
the obligations of the Lessees shall be joint and several.
8. Captions. The captions of this Lease are not controlling and shall have no effect
upon its construction or interpretation.
9. Severability. If any term, covenant or condition of this Lease is determined by a
court of competent jurisdiction to be invalid, it shall be considered deleted and
shall not invalidate any of the remaining terms, covenants and conditions.
ISTN"i1"1 13ir".0
This Lease shall become effective only when approved by the City Council of the City of
San Rafael and executed on behalf of the City of San Rafael by the Mayor of the City of San
Rafael and a duly executed copy has been delivered to Lessee. The submission of this Lease by
Lessor, its agent or representative for examination by Lessee does not constitute an option or
offer to lease the Lease Premises upon the terms and conditions contained herein, or a
reservation of the LEASED LANDS in favor of Lessee. Lessee's submission of an executed
copy of this Lease to Lessor shall constitute an offer to Lessor to lease the LEASED LANDS on
the terms and conditions set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date
hereafter affixed.
LESSEE:
TRANS BAY C E LLC
By:
0140k4 N2—QUC-T
Title:
Date: t L (-,q 1 o C,
-1C-
LESSOR:
CITY OF SAN RAFAEL
By:i
Albert J. Bor
Title: Mayor, City of San Rafael
Date: 12/20/06
ACKNOWLEDGEMENT:
ATTEST:
JeaYme Leoncini
City Clerk
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This Lease was authorized by the
City of San Rafael on
December 18, 2006
(Month Day Year)
By City Council Resolution No: 12176
STATE OF CALIFORNIA )
) ss.
COUNTY OF Marin )
On December 20, 2006, before me, Esther Colette Beirne, Notary Public in and for said
State and County, personally appeared Albert J. Boro, personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me that
he executed the same in his authorized capacity, and that by his signature on the
instrument, the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(Seal)
ESTHER COLETTE BEIRNE
Commission # 1423444
-m Notary Public - California
Marin County
d,i," 1 1. •m
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss. }
County of C ,[AIYI Ra, V1 G i S iii )
On bW_IM60Y 2-012006 before me, HEIDI WAGNER, NOTARYPUBLIC
Date jName and Title of Officer (e.g., "Jane Doe, Notary Public")
personally appeared YI �NLC.r
Name(s) of Signers)
personally known to me
❑ proved to me on the basis of satisfactory
evidence
HEIDI WAGNER
ra'��Commission # 1668211
Notary Public - California
San Francisco County
My Comm, Expires Jun 4,201
to be the person(& whose name(c} is/ate
subscribed to the within instrument and
acknowledged to me that he/s+f�xecuted
the same in his/heir: authorized
capacity(iee), and that by his/herlthair
signature* on the instrument the person(*, or
the entity upon behalf of which the persons}
acted, executed the instrument.
WITNESS my hand and official seal.
1Jl.J �-
Sgnature of Nit
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: Le.4(
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) ClaimedbySigner
Signer's Name: l �i�I i. _P"T l� _
❑ Individual
Corporate Officer — Title(s): _%Lle
❑ Partner — Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
IPires i j _
Number of Pages:
Signer Is Representing: TY 1& �.�--
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0 1999 National Notary Association - 9350 De Soto Ave., P.O. Boz 2402 - Chatsworth, CA 91313-2402 - www.nationainotary.org Prod. No. 5907 Reorder: Call Tall -Free 1-600-676-6627