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HomeMy WebLinkAbout2009-07-08 e-packetAGENDA RF:DEVELOPMENT AGENCY CITE' OF SOUTH SAN FRANCISCO REGULAR MEETING MUNICIPAL SERVICES BUILDING COMMUNITY ROOM WEDNESDAY, JULY 8, 2009 6:30 P.M. PEOPLE OF SOUTH SAN FRANCISCO You are invited to offer your suggestions. In order that you may know our method of conducting Agency business, we proceed as follows: The regular meeting of the Redevelopment Agency is held on the second Wednesday of each month at 6:30 p.m. in the Municipal Services Building, Community Room, 33 Arroyo Drive, South San Francisco, California. Public Comment: For those wishing to address the Board on any Agenda or non-Agendized item, please complete a Speaker Card located at the entrance to the Community Room and submit it to the Clerk. Please be sure to indicate the Agenda Item # you wish to address or the topic of your public comment. California law prevents Redevelopment Agency from taking action on any item not on the Agenda (except in emergency circumstances). 'Your question or problem may be referred to staff for investigation and/or action where appropriate or the smatter may be placed on a future Agenda for more comprehensive action or a report. When your name is called, please come to the podium, state your name and address for the Minutes. COMMENTS ARE LIMITED TO THREE (3) MINUTES PER SPEAKER. Thank you for your cooperation. The Clerk will read successively the items of business appearing on the Agenda. As she completes reading an item, it will be ready for Board action. KARYL MATSUMOTO Chair MARK N. ADDIEGO Vice Chair PEDRO GONZALEZ Boardmember RICHARD A. GARBARINO Boardmember RICHARD BATTAGLIA Investment Officer BARRY M. NAGEL Executive Director KEVIN MULLIN Boardmember KRISTA MARTINELLI-CARSON Clerk STEVEN T. MATTAS Counsel PLEASE SILENCE CELL PHONES AND PAGERS HEARING ASSISTANCE EQUIPMENT [S AVAILABLE; FOR USE BY THE HEARING-IMPAIRED AT REDEVELOPMENT AGENCY MEETINGS In accordance with California Government Code Section 54957.5, any writing or document that is a public record, relates to an open session agenda item, and is distributed less than 7.2 hours prior to a regular meeting will be made available for public inspection in the City Clerk's Office located at City Hall. If, however, the document or writing is not distributed until the regular meeting to which it relates, then the document or writing will be made available to the public at the location of the meeting, as listed on this agenda. The address of City Hall is 400 Grand Avenue, South San Francisco, California 94080. CALL TO ORDER ROLL CALL AGENDA REVIEW PUBLIC COMMENTS CONSENT CALENDAR Motion to approve the minutes of June 10, 2009. 2. Motion to confirm the expense claims of July 8, 2009. 3. Resolution objecting to any seizure by the State Government of the City's Street Maintenance and Redevelopment Funds. 4. Cancellation of the Regular Redevelopment Agency Meeting on August 12, 2009. ADMINISTRATIVE BUSINESS 5. Resolution authorizing the expenditure of Tax Increment Funds for the acquisition of land for roadway improvements required in connection with the Caltrain Station Improvement Project, adopl;ing findings required by Health and Safety Code Section 33445, and authorizing execution of an Agreement Affecting Real Property, an Interim Parking License Agreement ,and a Temporary Construction Easement Agreement. 6. Resolution awarding a Contract to D.L. Falk Construction, Inc. for Construction of the Emergency Operations Center/Training Classroom in an amount not to exceed $714,000. ADJOURNMENT REGULAR REDEVELOPMENT AGENCY MEETING JULY 8, 2009 AGENDA PAGE 2 ~p~TH SAN~~ O~ ' 'L~ H ~ ~ o ~..:._~ c`~LI FOR~1P MINUTES ~A AGENDA ITEM # 1 REDEVELOPMENT AGENCY CITY OF SOUTH SAN FRANCISCO REGULAR MEETING MUNICIPAL SERVICES BUILDING COMMUNITY ROOM WEDNESDAY, JUNE 10, 2009 6:30 P.M. CALL TO ORDER ROLL CALL 6:33 P.M. Present: Boardmembers Garbarino, Gonzalez and Mullin, Vice Chairman Addiego and Chairwoman Matsumoto. Absent: None. AGENDA REVIEW No changes PUBLIC COMMENTS None CONSENT CALENDAR 1. Motion to approve the minutes of April 15, 2009 and May 13, 2009. 2. Motion to confirm the expense claims of June 10, 2009 in the amount of $312,724.12. 3. Resolution approving a loan for the remodel and expansion of Di Napoli Pizzeria in an amount not to exceed $350,C100 and authorizing the Executive Director to execute the loan documents. 4. Motion to accept the Lindenville Storm Drainage Construction Improvements project as complete in accordance with. plans and specifications. Motion - Boardmember Garbarino%Second -Vice Chairman Addiego: to approve Consent Calendar Items Nos. 1, 2 and 4. Unanimously approved by voice vote. Item 3 -Chairwoman Matsumoto reported she was not satisfied with the front facade of Cypress Avenue and feared leaving it a blank wall would leave it open as a target of graffiti. She questioned if the facade from Grand Avenue could be carried onto Cypress Avenue. Redevelopment Manager Norma Fragoso understood the Mayor's concern and stated Staff would speak with the contractors immediately to see if changes reflecting the her wishes could be accommodated. She further stated she would provide updated information in a Friday Memorandum to the Board. Motion -Chairwoman Matsumoto/Second - Boardmember Garbarino: To approve Resolution No. 16-2009. Unanimously approved by voice vote. CLOSED SESSION 5. Property Negotiations. (Pursuant to Government Code § 54956.8) Property: 938 Linden Avenue. Company Negotiator: 15SSF DEV, LLC. Agency Negotiator: Marty Van Duyn. 6. Property Negotiations. (Pursuant to Government Code § 54956.8) Property: 344 Grand Avenue. Company Negotiator: St. Vincent de Paul and SSF RDA. Agency Negotiator: Marty V an Duyn. Vice Chairman Addiego noted he would not be participating in the Closed Session Items Nos. 5 and 6 as he is employed by the Catholic Church. TIME IN: 6:39 P.M. TIME OUT: 7:02 P.M. Report out of Closed Session ADJOURNMENT RECESS 7:03 P.M. MEETING RESUMED: 9:00 P.M. Being of no further business, Chairwoman Matsumoto adjourned the meeting at 9:50 P.M. Submitted by: -Gtr. Anna Hernandez, Deputy Clerk South San Francisco REGULAR REDEVELOPMENT AGENCY MEETING MINUTES Direction given. No reportable action taken. Approved by: Karyl Matsumoto, Chairwoman South San Francisco JUNE 10, 2009 PAGE 2 ~~~zx„S~ ~`~ 0 J O c~LIFOR~l~ RDA AGENDA ITEM # 2 I certify that the demands set forth on this payment register are accurate and funds are available for payment.* DATED: ~ FINANCE DIRECTOR ~~ ~/~ *Note: Items below do not include payroll related payments Checks: Date Amount 06/10/09 20,762.30 06/17/09 41,449.23 06/24/09 43,165.87 07/01/09 16,407.21 Electronic Payments: Date Amount To Description 06/26/09 918.99 Deutsch Bank Debt Serv_ce Total Payments $ 122,703.60 This is to certify that the above bills were confirmed at the regular meeting of the Redevelopment Agency of South San Francisco held Julu 8, 2009. 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Mattas, City Attorney SUBJECT: RESOLUTION OBJECTING TO ANY SEIZURE BY STATE GOVERNMENT OF THE CITY'S STREET MAINTENANCE AND REDEVELOPMENT FUNDS RECOMMENDATION It is recommended that the Redevellopment Agency Board adopt a Resolution objecting to the state of California's proposed seizure of the City's street maintenance and redevelopment funds. BACKGROUND/DISCUSSION The California Governor has proposed the seizure of: (1) almost $1 billion in city and county shares of revenues in the Highway Users Tax Account (HUTA) from the motor fuel tax to fund past and future highway bond debt service payments to the general fund; and (2) $350 million of redevelopment tax increments each year for the next three years. On June 11, 2009, the Joint Budget Conference Committee endorsed the recommendation to seize HUTA revenues. If this seizure were to occur, South San Francisco would lose an estimated $1,073,818 in revenue frorri its 2009-2010 budget. The League of California Cities has advised that this recommendation, along with the recommendation to seize redevelopment tax increment funds, if enacted into law, would be unconstitutional. This determination is based on action by voters in 1974 and 1998 to enact limitations on the power of the legislation to seize and use HUTA gas tax funds, allowing only loans to the general fund on a limited basis. On April 30, 2009, in the case of CRA v. Genest, the Sacramento Superior Court found similar efforts by the State to seize redevelopment tax increment to be in direct violation of Article XVI, Section 16 of the State Constitution, added by the voters in 1952 as Proposition 18. The attached Resolution states the Redevelopment Agency Board's objection to the seizure of HUTA and redevelopment agency funds and also authorizes the City Attorney to cooperate and work with the League of California Cities, the California Redevelopment Association, and other local governments to advance the litigation. Staff Report Subject: RESOLUTION OBJECTING TO ANY SEIZURE BY STATE GOVERNMENT OF THE CITY'S STREET MAINTENANCE AND REDEVELOPMENT FUNDS Page 2 FISCAL IMPACT If the Governor's recommendations I-ecome law, the City's estimated loss of HUTA funds is $1,073,818 from the City's FY 2009-2.010 budget, and the loss of redevelopment tax increment will be similarly substantial. This loss may be avoided if the League of California Cities and the California Redevelopment Board successfully litigate. CONCLUSION The adoption of this Resolution will state the Redevelopment Agency Board's objection to the State's seizure of HUTA and redevelopment agency funds and will authorize the City Attorney to cooperate with the League, the California Redevelopment Board, and other local governments to advance litigation challenging the constitutionality of the proposed seizure of City funds. Steven T. attas City Attorney Approved: ~ ~ ~ Barry .Nagel Executive Director Attachment: Resolution RESOLUTION NO. RED:EVELOPMiJNTRGENCY BOARD CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION OBJECTING TO ANY SEIZURE BY STATE GOVEPI~TMENT OF THE CITY'S STREET MAINTENANCE, AND REDEVELOPMENT FUNDS WHEREAS, the current e-conomic crisis has placed cities under incredible financial pressure and caused them to make painful budget cuts, including layoffs and furloughs of city workers, decreasing maintenance and operations of public facilities, and reductions in direct services to kE;ep spending in line with declining revenues; and WHEREAS, since the early 1990s, the state government of California has seized over $10 billion of city property itax revenues statewide, now amounting to over $900 million each year, to fund the state budget even after deducting public safety program payments to cities by the state; and WHEREAS, since the early 1990s the state government also has seized $1.04 billion in redevelopment tax increment statewide, and the Governor and Legislature are now considering seizing $350 mialion each year for three years, beginning in the current fiscal year; and WHEREAS, on Apri130, 2009, in the case of CRA v. Genest, the Sacramento Superior Court found similar efforts by the State to seize redevelopment tax increment for the state general fund to be in direct violation of Article XVI, Section 16 of the State Constitution, added by the voters in 1952 as Proposition 18, which requires that tax increment be used exclusively for the benefit of redevelopment project areas; and WHEREAS, in his proposed FY 2009-10 budget, the Governor has proposed transferring $1 billion of local gas taxes and weight fees to the state general fund to balance the state budget, and over $700 million in local gas taxes permanently in future years, immediately jeopardizing the ability of the City to maintain the City's streets, bridges, traffic signals, streetlights, sidewalks and related traffic safety facilities for the use of the motoring public; and WHEREAS, some cities report to the League of California Cities that they will be forced to eliminate part or all of their street maintenance operations while others will be forced to cut back in other areas to use city general funds for basic street repair and maintenance; WHEREAS, ongoing street maintenance is a significant public safety concern; and WHEREAS, cities and counties maintain 81 % of the state road network while the state directly maintains just 8%, and according to a recent statewide needs assessment) on a scale of zero (failed) to 100 (ex:cellent), the statewide average pavement condition index (PCI) is 68, or "at risk"; and WHEREAS, in both Pro~,osition 5 in 1974 and Proposition 2 in 1998, the voters of our state overwhelmingly imposed restriction on the state's ability to do what the Governor has proposed, and any effort to permanently divert the local share of the gas tax would violate the state constitution and the will of the voters; and NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY BOARD OF THE CITY OF SOUTH SAN FRANCISCO hereby expresses its willingness to cooperate with the League of California Cities, other cities and counties i:n supporting litigation against the state of California if the legislature enacts and the governor signs into law legislation that unconstitutionally diverts the City's share of funding from the Highway Users Tax Account (HUTA), also known as the "gas tax," to fund the state general fund; and BE IT FURTHER RESOLVED, that the City Clerk shall send this resolution with an accompanying letter from the Mayor to the Governor and each legislator, informing them in the clearest of terms of the City's adamant resolve to oppose any effort to frustrate the will of the electorate; as expressed in Proposition 5 (1974) and Proposition 8 (1998) concerning the proper use; and allocation of the gas tax; and BE IT FURTHER RESOLVED, that a copy of this Resolution shall be sent by the City Clerk to the League of California Cities, the California Redevelopment Association, the local Chamber of Commerce„ and other community groups whose members are affected by this proposal to create unsafe conditions on the streets of our City for pedestrians, bicyclists and motorists. 1 California Statewide Local Streets and Roads Needs Assessment, Nichols Consulting Engineers, Chtd. (2008), sponsored by the League of California Cities, California State Association of Counties and County Engineers Association of California. * * ~ I hereby certify that the :foregoing Resolution was regularly introduced and adopted by the City Council and the Redevelopment Agency Board of the City of South San Francisco at a regular meeting hf;ld on the day of , 2009 by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk 1251144.1 RDA A GENDA ITEM # 4 ~zx saN~ ~° ~~"'""~- `~ Redevelo meet A enc p g y ° Sta fff Re opt c'~LIFOR~lA JJ p DATE: July 8, 2009 TO: Redevelopment Agency FROM: Barry M. Nagel, Executive Director SUBJECT: CANCELLATION OF REGULAR REDEVELOPMENT AGENCY MEETING ON AUGUST 12, 2009 RECOMMENDATION: It is recommended that the Redevelopment Agency, by motion, cancel the August 12, 2009 regular Redevelopment Agency. BACKGROUND/DISCUSSION The regular meeting of the Redevelopment Agency is scheduled for August 12, 2009. Due to potential scheduling conflicts, staff is recomnnending that the Redevelopment Agency cancel the meeting scheduled on August 12, 2009. CONCLUSION: Staff believes there are no business items which would be adversely affected by cancelling the regular Redevelopment Agency meeting on August 12, 2009. By: ~' • ~ =~ Barry M. Nagel Executive Director BMN:ips °°~x"S~~'~, .Redevelo ment ~A AGENDA ITEM # 5 o ~ p Agenc y Sta Re ort .ff '~LIF RZytA 0 DATE: July 8, 2009 TO: Redevelopment Agency Board FROM: Marty Van Duyn, Assistant Executive Director SUBJECT: RESOLUTION AUTHORIZING THE EXPENDITURE OF TAX INCREMENT FUNDS FOR THE ACQUISITION OF LAND FOR ROADWAY IMPROVEMENTS REQUIRED IN CONNECTION WITH THE CALTRAIN STATION IMPROVEMENT PROJECT, ADOPTING FINDINGS REQUIRED BY HEALTH AND SAFETY CODE SECTION 33445, AND AUTHORIZING EXECUTION OF AN AGREEMENT AFFECTING REAL PROPERTY, AN INTERIM PARKING LICENSE AGREEMENT, AND A TEMPORARY CONSTRUCTION EASEMENT AGREEMENT RECOMMENDATION It is recommended that the Redevelopment .Agency Board adopt the attached Resolution authorizing the expenditure of tax increment funds for the acquisition of land for roadway improvements required in connection with the Caltrain Station Improvement Project, adopting findings required by Health and Safety Code Section 33445, and authorizing execution of an Agreement Affecting :Real Property, an Interim Parking License Agreement, and a Temporar~~ Construction Easement Agreement. BACKGROUND/DISCUSSION In connection with the South San Francisco Caltrain Improvement Project, the City of South San Francisco's Redevelopment Agency wild need to acquire a portion of the above referenced property in order to effectuate right of way and roadway improvements to East Grand Avenue and Executive Drive, in the East of 10] District. Station improvements will include a shuttle drop-off area to be located on Executive Drive directly across from the Comfort Suites Hotel. In the future, Executive Drive will be reconfigured to recapture the City's right of way, providing expanded landscaped lanes for the shuttle drop-off area and new landscaped sidewalk along the westerly side of the hotel property. As part of the overall project the City of South San Francisco's Redevelopment Agency will make modifications at the intersection of Executive Drive and East Grand Avenue. The modifications will affect the subject Property. The Redevelopment Agency proposes to acquire property interests in the subject area consisting of an option to acquire a temporary construction easement, exercisable at the time the Project construction commences and the fee interest in a portion of the Property, located at l21 East Grand Avenue and known as Comfort Suites Hotel, consisting of approximately 722 square ff:et for the purpose of improving the public right of way, Staff Report Subject: Agreement Affecting Real Property Page 2 and proposes to grant a license to the owner of Comfort Suites Hotel for continued interim parking use prior to the time Project construction commences. The "fee interest acquisition" will affect a portion of land at the southwest corner of the site, where the current use is landscaping. The fee take will reduce the size of the remainder parcel by 722 square feet and may affect one parking space. The temporary construction easement measures 12,000 square feet and will affect land that is now used for landscaping and parking along the westerly property line, between the building and Executive Drive. The Redevelopment Agency, at its expense, will replace the parking and landscaping for Comfort Suites Hotel along the westerly property line. The proposed "option to acquire the temporary construction easement" will be triggerecj when construction of the overall improvements is scheduled to begin. The temporary construction easement is considered as rental of the land for the stated duration of the construction of the public project. The fee title portion, near the corner of Executive Drive and East Grand Avenue, will be acquired immediately; however, it will be reconfigured at the same time as the overall construction improvements commence. The "grant of license to Comfort Suites" for continued interim parking use involves a portion of land that may only be used for landscaping or parking. All three of the above referenced documents are combined in a Master Agreement Affecting Real Property proposed for approval by both the Redevelopment Agency and City Council. The Agency has made an offer at appraised value which was accepted by the owners of the Comfort Suites Hotel. A Phase I Environmental Investigation was performed which concluded that there were no known environmental conditions associated with the subject property or the immediate vicinity. The terms of transaction are included in the master document titled Agreement Affecting Rea] Property and is attached as Exhibit "A" to this staff report. Further attachments include Exhibit "B" containing a map of the fee title, terr~porary easement, licensed parking area and photographs of the Hotel site. A preliminary title report has been secured indicating that Fidelity National Title is prepared to issue a policy of title insurance for the proposed conveyances. Once formally approved by both the Redevelopment Agency Board and City Council, the City Manager will execute the Master Agreement and proceed with opening escrow for the fee title acquisition and grant of license for parking area. The Property lender will be required to release the fee parcel from the existing deed of trust prior to the Agency's acquisition. The City will not purchase the property if it is subject to such lien and the grant of the license is contingent upon the acquisition of the fee parcel. FINDINGS REQUIRED BY HEALTH AND SAFETY CODE 33445 California Redevelopment Law provides that a redevelopment agency may; with consent of the legislative body, pay for the cost of land a:nd for the cost of construction of improvements within or outside a redevelopment project area, if~the legislative body determines all the following: 1) the improvements will be of benefit to the project area or immediate neighborhood, 2) no other means of financing is available, 3) the payment of funds for the cost of improvements will assist Staff Report Subject: Agreement Affecting Real Property Page 3 in the elimination of one or more blighting conditions inside the project area, and 4) the project is consistent with the Five Year Implementation Plan adopted by the Agency. The proposed expenditure of tax increment funds will enable the City and the Agency to proceed with the development of a new Caltrain station and related public improvements that will assist in the attraction and retention of businessE;s in the Project Area, increase economic activity, improve circulation, and encourage investment in the Project Area. City and Agency staff has determined that no other funds are available for this purpose which will eliminate currently existing blighting conditions in the area and improve traffic circulation and pedestrian access. The proposed improvements and expenditure are consistent with the stated goals and objectives of the Agency adopted Five Year Implementation Plan.. FUNDING Funding for these proposed transactions has been anticipated and incorporated into the current fiscal year Redevelopment Agency budget in the amount of $ l 80,000, representing $86,640 for the fee interest parcel and up to $93,600 for the temporary construction easement. As compensation for the Temporary Construction Easement (TCE), Agency shall pay to Owner the sum of $77,800 on or before the Commencement Date. If Agency requires use of the Easement Area for a period exceeding ten (10) months, Agency shall pay to Owner an amount equal to $255.78 times the number of days that Agency use of the Easement Area exceeds ten (l 0) full months. The Agency has the right to extend the TCE for a period of six months. City and Agency shall grant to the Hotel owners a revocable license to use the license area for the sole purpose of vehicular parking by Hotel guests during their stay at the Hotel. Licensee shall pay to City a fee in the amount of $700 per month. On each anniversary of the Effective Date, the License Fee shall increase by five percent (5%) for the duration of the ten (10) year period of the TCE. CONCLUSION It is recommended that the Redevelopment Agency Board adopt the attached Resolution authorizing the expenditure of tax increment funds for the acquisition of land for roadway improvements required iri connection with the Caltrain Station lmprovement Project, adopting findings required by Health and Safety Code Section 33445, and authorizing execution of an Agreement Affecting Real Property, an Interim Parking License Agreement, and a Temporary Construction Easement Agreement. By: "L~ :~ Marty Van Duyn Assistant Executive Director Approved: '' `~'1 M. Nagel Executive Director Staff Report Subject: Agreement Affecting Real Property Page 4 BMN: MVD: NF Attachment: Resolution Exhibit "A" Agreement Affecting Real Property Exhibit "B" Map of Property and Photos RESOLUTION NO REDEVELOPMENT AGENCY; CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AI:JTHORIZING THE EXPENDITURE OF TAX INCREMENT FUNDS FOR THE ACQUISITION OF LAND FOR ROADWAY IMPROVEMENTS REQUIRED IN CONNECTION WITH THE CALTR.AIN STATION IMPROVEMENT PROJECT, ADOPTING FINDINGS REQUIRED BY HEALTH AND SAFETY CODE SECTION 33445, AND AUTHORIZING EXECUTION OF AN AGREEMENT AFFECTING REAL PROPERTY, AN INTERIM PARKING LICENSE AGREEMENT, AND A TEMPORARY CONSTRUCTION EASEMENT AGREEMENT WI~REAS, the Redevelopment Agency of the City of South San Francisco ("Agency") is a redevelopment agency formed, existing and exercising its powers pursuant to California Community Redevelopment Law, Health and Safety Code Section 33000 et seq. («C~~, )~ WI~REAS, by Ordinance No. 1056-89, the City Council of the city of South San Francisco ("City Council") established the Downtown/Central Redevelopment Project (the "Project Area") and adopted the R•°development Plan for the Project Area (as subsequently amended, the "Redevelopment Plan"); WHEREAS, City and Agency staff have been collaborating on a joint project to construct a new Caltrain Station and related public improvements including a pedestrian tunnel connecting the east and west side of the Caltrain Station from Airport Boulevard to East Grand Avenue at Route 101 in the City (the "Project"); WHEREAS, in connection vvith the Project, as more fully described in a proposed Agreement Affecting Real Property (tlhe "Agreement") by and among the City, the Agency and the owner of the Comfort Suites Hotel located in the Project Area at 121 East Grand Avenue (the Property"): (i) the Agency proposes to acquire a portion of the Property consisting of approximately 722 square feet (the "F'ee Parcel") for the purpose of improving the public right of way, (ii) pursuant to a proposed Temporary Construction Easement Agreement (the "TCE Agreement"), the Agency proposes to acquire a temporary construction easement ("TCE") exercisable at the time that Project construction commences, and (iii) pursuant to a pro osed P License Agreement (the "License Agreement"), the Agency and City propose to grant an interim parking license to the owner of the Comfort Suites Hotel for use prior to the dine that Project construction commences; WHEREAS, in accordance with the California Environmental Quality Act ("CEQA"), an environmental impact report for the .Project was certified in 20 -~ -1- WHEREAS, Section 33445 of the CRL provides that a redevelopment agency may, with the consent of the legislative body, pay for all or a portion of the cost of the land for and cost of construction of any building, Facility, structure, or other improvements that are publicly owned either within or outside the redevelopment project area if the legislative body determines all of the following: a. The buildings, facilitie-s, structures, or other improvements are of benefit to the project area or the immediate neighborhood in which the project is located; and b. No other reasonable means of financing the buildings, facilities, structures; or other improvements is available to thc; community; and c. The payment of funds for the cost of buildings, facilities, structures, or other improvements will assist in the elimination of one or more blighting conditions inside the project area; and d. The project is consistent with the Five Year Implementation Plan adopted by the Agency pursuant to Section 33490; WI-~REAS, as more fully described in the Staff Report accompanying this Resolution (the "Report"), the proposed expenditure of tax increment funds will enable the City and the Agency to proceed with the development of a new Caltrain station and related public improvements that will assist in the attraction and retention of businesses in the Project Area, increase economic activity, improve circulation, and encourage private investment in the Project Area; WI~REAS, as more fully described in the Report, the expenditure of tax increment funds for the Project will be of benefit: to the Project Area and the immediately surrounding area by increasing transit ridership and promoting transit-oriented development; WHEREAS, as more fully described in the Report; the expenditure of tax increment funds for the Project is consistent with the Implementation Plan adopted by the Agency pursuant to Health and Safety Code Section 33490, in that the Project will further the goals and objectives of the Redevelopment Plan, improve the appearance of the Project Area, promote transit-oriented development, improve access to Project Area businesses; and support economic development; WHEREAS, as more fully described in the Report, the Project will not generate cash flow to the City or Agency, and therefore cannot support debt service; the City has no unrestricted general fund revenue available for the Project without a reduction in vital community services; and the City does not have and cannot reasonably obtain revenue available for such purposes, and therefore no other reasonable means of financing the Project exists. -2- NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of South San Francisco that it hereby: 1. Finds based upon the foregoing recitals and the evidence set forth in the Report, that: (i) the expenditure of tax increment funds to acquire the Fee Parcel and the TCE will be of benefit to the Project Area, (ii) no other reasonable means of financing such acquisitions is reasonably available, (iii) completion of the Project will assist in the elimination of blighting conditions in the Project Area; and (iv) completion of the Project is consistent with the Implementation Plan adopted for the Project Area. 2. Approves the Agency's expenditure of tax increment funds in the amount of Eighty-Six Thousand Six Hundred and Forty Dollars ($86,640) for the acquisition of the Fee Parcel and the sum of up to Ninety-Three Thousand Three Hundred and Sixty Dollars ($93,360) for the TCE, and if necessary, such additional fees as may be required to extend the duration of TCE pursuant to the TCE Agreement. 3. Approves the Agreement, t:he License Agreement, and the TCE Agreement, and authorizes the Executive Director to execute such agreements substantially in the forms presented to the Agency Board with such modifications as may be approved by the Executive Director in consultation with Agency Counsel. 4. Authorizes the Executive Director to undertake such other actions and to execute such other instruments, as may be necessary or desirable in order to carry out the intent of this Resolution, including without limitation, the execution and recordation of a Certificate of Acceptance for the Fee Parcel, the procurement of a policy of title insurance; and the processing of a lot-line adjustment if necessary to facilitate the conveyance of the Fee Parcel to the Agency. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of~ South San Francisco at a meeting held on the day of , 2009 by the following vote: AYES: NOES: ABSTAIN: ABSENT: 1248439.1 ATTEST: Agency Secretary -3- Recording Requested by and when Recorded, return to: Redevelopment Agency of the City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: Executive Director EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE §§6103, 27383 ABOVE THIS LINE RESERVED FOR RECORDER'S USE) A.P.N. 015-024-320 TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (this "Agreement") is entered into effective as of , 2009 ("Effective Date") by and between the Redevelopment .Agency of the City of South San Francisco, a public body corporate and politic ("Agency") and SSF Investments LLC, a California limited liability company, ("Owner"). Agency and Owner are hereinafter referred to collectively as the "Parties." RECITALS A. Owner is the fee owner of that certain real property located at 121 East Grand Avenue, South San Francisco, California, and known as San Mateo County Assessor's Parcel No. 015-024-320 (the "Property"). B. Agency intends to construct certain public improvements in connection with development of a new Caltrain station or improvement of the existing Caltrain station (the "Project") on property located adjacent to the Property (the "Project Site"). C. In order to provide access to and from the Project Site during construction, and to otherwise facilitate development of the Project and related public improvements, Owner has agreed to provide an exclusive temporary construction easement to Agency in the area of the Property described and depicted in Exhibit A attached hereto and incorporated herein by reference (the "Easement Area"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Grant of Easement. Effective as of the Commencement Date (defined in Section 3 below), Owner hereby grants to Agency a temporary construction easement ("TCE") 1230252-5 6-26-09 Exhibit A -4- on, over and across the Easement Area for the purpose of providing a staging area for construction of the Project and related improvements. 2. Exclusive Use. Agency's right to use the Easement Area shall be exclusive; therefore, the Agency may, from time to time, exclude persons or other uses from all or any portion of the Easement Area if, in Agency's sole discretion, the presence of such persons or other uses would be hazardous or would hinder Agency's activities related to construction of the Project and related improvements. 3. Term. The term of the TCE shall commence upon the date (the "Commencement Date") specified by Agency in written notice delivered to Owner not less than ninety (90) days in advance of the Commencement Date; provided however that Agency shall deliver the Exercise Notice by not later than the tenth (10tH) anniversary of the Effective Date. If Agency fails to provide such notice by such date, the TCE shall terminate and this Agreement shall be deemed null and void. Unless Agency exercises its right to extend the term of the TCE or the Parties otherwise agree, the TCE shall expire twelve (12) months following the Commencement Date or upon completion of Project construction, if sooner. If necessary for completion of the Project, Agency shall have the right to extend the term of the TCE by an additional six (6) months upon delivery of written notice to Owner. 4. Compensation. As compensation for the TCE, Agency shall pay to Owner the sum of Seventy-Seven Thousand Eight Hundred Dollars ($77,800) (the "Initial Payment"); on or before the Commencement Date. If Agency requires use of the Easement Area for a period exceeding ten (10) months, Agency shall pay to Owner an amount equal to Two Hundred and Fifty-Five and 78/100 Dollars ($255.78) times the number of days that Agency use of the Easement Area exceeds ten (10) full months. Any such additional payment shall be made on a monthly basis within five (5) business days following the end of each month of Agency use of the Easement Area. Owner shall not be obligated to refund any portion of the Initial Payment if Agency uses the Easement Area for less than ten (10) full months. 5. Use of Easement Obligation to Restore. Agency will limit noise-generating construction work on the Project to the hours of 9:00 a.m. and 6:00 p.m.; provided however, City and Agency will be permitted to engage in construction activities that do not generate noise before 9:00 a.m. Agency shall restore the Easement Area, including without limitation, the landscaping and surface of Owner's parking lot and other improvements located thereon, to its condition existing prior to commencement of construction. Immediately prior to commencement of construction, Agency and Owner shall photograph the condition of thE~ Easement Area and shall provide copies of photographs to the other party. Agency shall either repair any damage to buildings, structures and landscaping caused key Agency, its employees, contractors or subcontractors during the course of using the Easement Area or shall compensate Owner for the cost of such damage. The City or Agency shall maintain the Easement 1230252-5 2 6-26-09 -5- Area so as to keep it free of debris and oil and to prevent any unreasonable disruption to the business maintained by Owner at the Property. 6. Indemnification. Agency shall indemnify, defend, and hold Owner harmless from and against any and all loss, liability, cost, claim, demand, judgment, expense (including reasonable attorneys' fees) or damage (collectively "Claims") resulting from Agency's entry upon or use of the Easement Area, except to the extent any such Claim arises from the gross negligence or willful misconduct of Owner or Owner's agents, consultants, representatives, members, managers, officers, contractors or employees. Owner shall notify the Agency of any Claim against the Owner within ten (10) days after it has notice of such Claim. 7. Events of Default; Remedies. An Event of Default under this Agreement shall occur if a Party fails to fulfill or perform any obligation required to be fulfilled or performed by such Party hereunder and the failure of such Party to cure such default within thirty (30) days after receipt of written notice thereof (or in the case of a default that cannot be reasonably cured within such period, the failure to commence to cure such default within thirty (30) days and thereafter to proceed with due diligence to cure such default). Upon the occurrencE~ of an Event of Default hereunder, the nonbreaching Party may initiate mediation of the controversy, claim, or dispute in accordance with the rules and procedures of the American Arbitration Association, and the other Party shall participate in good faith. The Parties shall bear the cost of the mediation equally and each shall pay its own attorneys' fees and expenses in such mediation. If the Parties are unable to mediate successfully, the nonbreaching Party may take any action available to it in law or in equity, including without limitation, pursuit of an order for specific performance. The remedies afforded hereunder are cumulative. Failure to provide notice of any default shall riot constitute a waiver of such default. It is expressly understood and agreed that no breach of this Agreement shall entitle either Party to cancel, rescind or otherwise terminate this Agreement. The foregoing limitation shall not affect, in any manner, any other right or remedy which either Party may have by reason of any breach of this Agreement. 8. Miscellaneous. 8.1 No Joint Venture; No Brokers. No provision of this Agreement shall be deemed to constitute the Parties as partners, principal and agent, or joint venturers with one another. Each Party represents and warrants to the other that no brokers have been retained or consulted in connE~ction with this transaction other than as disclosed in writing to the other party. Each Party shall defend, indemnify, and hold the other Party harmless from any claim, expense, cost, loss or liability imposed by any party claiming a fee or commission in connection with this Agreement or the acquisition of the Easement and arising out of the indemnifying Party's conduct. 8.2 No Waiver. No waiver of, acquiescence in or consent to any breach of any term, covenant or condition hereof shall be construed as, or constitute a waiver of, 1230252-5 3 6-26-09 -6- acquiescence in, or consent to, ar~y other, further or succeeding breach of the same or any other term, covenant or condition. 8.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall ~-e made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. AGENCY: Redevelopment Agency of the City of South San Francisco City Hall, 400 Grand Avenue South San Francisco, CA 94083 Attention: Executive Director Telephone: (650) 829-6620 Facsimile: (650) 829-6623 OWNER: 8.4 Governing Law' Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of 1230252-5 4 6-26-09 -7- San Mateo County, California or iri the Federal District Court for the Northern District of California. 8.5 Severability. If any term, provision, covenant or condition contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement shall continue in full force and effect. 8.6 Attorneys' Fees. Except as provided in Section 7, in any action at law or in equity, arbitration or other proceeding arising in connection with this Agreement, the prevailing party shall recover reasonable attorneys' fees (including the allocated costs of staff counsel) and other costs, including but not limited to court costs and expert and consultants' fees incurred in connection with such action in addition to any other relief awarded, and such attorneys' fees and costs shall be included in any judgment in such action. 8.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and all of which taken together shall constitute one and the same instrument. 8.8 Amendments. This /agreement may be modified or amended, in whole or in part, only by an instrument in writing, executed and acknowledged by the Parties, and recorded in the Official Records of San Mateo County. 8.9 Captions; Construction. The section headings used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of the provisions herein contained. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. In construing the provisions of this Agreement and whenever the context so requires, the use of a gender shall include all other genders, the use of the singular shall include the plural, and the use of the plural shall include the singular. 8.10 Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements with respect thereto. 8.11 No Third Party Beneficiaries. This Agreement is not intended to create, nor shall it be in any way interpreted or construed to create, any rights in any person not a party hereto. 8.12. Joint and Several Obli ations. If this Agreement is signed by more than one person or entity as Owner, the obligations of each such person or entity shall be joint and several. 1230252-5 5 6-26-09 - $ - 8.13 Further Assurances.. The Parties agree to execute, acknowledge and deliver to the other such other documents and instruments, and to undertake such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement. 8.14 Binding Effect; Due Authorization. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest and assigns of each of the parties hereto. The Parties intend this Agreement to run with the land. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has succeeded to the interest of such party by operation of law or otherwise. SIGNATURES ON FOLLOWING PAGE. 1230252-5 6 6-26-09 -9- IN WITNESS WHEREOF the Parties have executed this Temporary Construction Easement Agreement as of the d<~te first written above. AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO BY. Barry M. Nagel, Executive Director ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency Counsel OWNER: SSF INVESTMENTS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY ~Y= Print Name: Title: SIGNATURES MUST BE NOTARIZED. 1230252-5 7 6-26-09 -10- STATE OF CALIFORNIA COUNTY OF SAN MATED ) On 20_, before me, , (here insert name and title of the officer), personally appeared 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 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA COUNTY OF SAN MATED) (Seal) On 20_, before me, _ , (here insert name and title of the officer), personally appeared 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. f certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 1230252-5 6-26-09 (Seal) 8 -11- Exhibit A EASEMENT AREA (Attach Legal Description and Plat for Temporary Construction Easement .) 1230252-5 6-26-09 -12- AGREEMENT AFFECTING REAL PROPERTY THIS AGREEMENT AFFECTING REAL PROPERTY (this "Agreement") is entered into effective as of , 2009 (the "Effective Date") by and between SSF Investments LLC, a California limited liability company ("Seller"), the Redevelopment Agency of the City of South San Francisco; a public body, corporate and politic ("Agency") and the City of South San Francisco, a municipal corporation ("City"). Seller, Agency and City are hereinafter referred to as the "Parties." WHEREAS, Seller is the owner of that certain real property in San Mateo County, California, located at 121 East Grarid Avenue in the City of South San Francisco within the Downtown/Central Redevelopment Project Area (the "Project Area"), and known as San Mateo County Assessor's Parcel No. 015-024-320 (the "Property"); WHEREAS, in order to facilitate- development of a new Caltrain station, or improvement of the existing Caltrain station, and related public improvements (collectively, the "Project"), Agency desires to purchase from. Seller, and Seller has agreed to sell to Agency, the portion of the Property consisting of approximately 722 square feet and depicted and described in Exhibit A-1 attached hereto and incorporated herein by reference (the "Fee Parcel"); WHEREAS, the City and th~° Agency have the power to acquire property by eminent domain within the Project Area; WHEREAS, in order to facilitate development of the Project, Agency desires to acquire, and Seller agrees to convey to Agency a temporary construction easement ("Easement") over the portion of the Property consisting of approximately 11,830 square feet and depicted and described in Exhibit B-1 attached hereto and incorporated herein by reference (the "Easement Area"); WI~REAS, Seller's predecessor in interest was the tenant under (i) that certain Lease by and between the City as Landlord, and Warmington South San Francisco Hotel Associates, a California limited partnership, as Tenant; dated as of June 12, 1985, concerning a parcel containing approximately 6,379 square feet adjacent to Executive Drive (formerly Industrial Way) in the City, as more particularly described in such lease, and (ii) that certain Lease by and between the City as Landlord, and Warmington South San Francisco Hotel Associates, as Tenant, dated as of June 12, 1985, concerning a parcel containing approximately 1,965 square feet adjacent to Executive Drive (formerly Industrial Way) in the City, as more particularly described in such lease. The foregoing leases are referred to collectively herein as the "Leases"; WHEREAS, on or about August 1, 2008; City notified Seller in writing of the termination of the Leases; WHEREAS, Seller desires to obtain, and City and Agency desire to provide to Seller, a revocable license pursuant to which Seller will have the right to use the City-owned property consisting of approximately 8,344 square feet and depicted and described in Exhibits C-l and 0- 1197143-5 ~ 6-26-09 -13- 2 and the Fee Parcel (all of the foregoing, collectively, the "Parking License Area") for parking purposes on an interim basis until the Parking License Area is needed in connection with development of the Project; WIEREAS, Agency is a redevelopment agency existing pursuant to the Community Redevelopment Law, California Health and Safety Code Section 33000, et seq., and pursuant to the authority granted thereunder, Agf;ncy has the responsibility to carry out the Redevelopment Plan for the Downtown/Central Redevelopment Project Area ("Redevelopment Plan"); and WIEREAS, the Project and the transactions contemplated by this Agreement are consistent with and will further the goals and objectives of the Redevelopment Plan. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, th.e Parties agree as follows. 1. Conveyance of Property Interests and License. Subject to the terms and conditions of this Agreement: (i) Seller agrees to sell and Agency agrees to purchase the Fee Parcel. At Close of Escrow, the Fee Parcel shall be conveyed to Agency pursuant to a grant deed substantially in the form attached hereto as Exhibit A (the "Grant Deed"). (ii) Seller agrees to provide to Agency the right to acquire a temporary construction easement over the Easement Area pursuant to a Temporary Construction Easement Agreement substantially in the form attached hf;reto as Exhibit B (the "Easement Agreement"). The Parties shall cause the Easement Agreement to be recorded in the Official Records of San Mateo County (the "Official Records") at the close of escrow for conveyance of the Fee Parcel ("Close of Escrow"). Among other provisions, the Easement Agreement shall provide as follows: (a) Agency may exercise the right to use the Easement upon delivery of not less than ninety (90) days written notice.("Ezercise Notice") to Seller at any time during the period commencing upon the Effective Date and terminating on the tenth (l 0'h) anniversary of the Effective Date. (b) The duration of~ the Easement shall be for a period not to exceed twelve (l2) months or such shorter time as is required in connection with development of the Project; provided however, the Agency shall have the right to extend the term of the Easement by an additional six (6) months if necessary for completion of the Project. (c) The purchase price for the Easement (based upon atwelve-month period of use and subject to proration as described in this paragraph) shall be Ninety-Three Thousand Three Hundred and Sixty Dollars ($!3,360) ("Easement Fee"). The Easement Fee shall be payable as follows: (i) on the date that construction of the Project commences, Agency shall pay Seller the sum of Seventy-Seven Thousand Eight Hundred Dollars ($77;800) (the "Initial Payment"); (ii) if Agency requires use of the Easement for a period exceeding ten (l 0) months, Agency shall pay to Seller an amount equal to Two Hundred and Fifty-Five and 78/] 00 Dollars 1197143-5 2 6-26-09 -14- ($255.78) times the number of days that Agency use of the Easement exceeds ten (10) full months. Any such additional payment shall be made on a monthly basis within five (5) business days following the end of each month of Agency use of the Easement. Seller shall not be obligated to refund any portion of the Initial Payment if Agency uses the Easement for less than ten (10) full months. (d) Upon completion of construction of the Project, City or Agency will repair or, as necessary, replace any landscaping and any portion of Seller's parking lot or other improvements damaged by City and/or Agency's construction activities or use of the Easement Area to cause them to be substantially in the same condition as existed prior to the commencement of the work. (e) City and Agency will limit noise-generating construction work on the Project to the hours of 9:00 a.m. and 6:00 p.m.; provided however, City and Agency will be permitted to engage in construction activities that do not generate noise before 9:00 a.m. The City or Agency shall maintain the Easement Area so as to keep it free of debris and oil and to prevent any unreasonable disruption to the business maintained by Seller at the Property. (iii) City agrees to provide; a license to Seller permitting Seller to use the Parking License Area pursuant to a License Agreement substantially in the form attached hereto as Exhibit C (the "License Agreement"). (iv) City agrees that it shall forgive all past-due rent under the Leases effective as of the Effective Date. (v) City hereby confirms that the number of parking stalls that will remain on the Property following conveyance of the Fee Parcel and Seller's discontinuance of the use of the Parking License Area is adequate to satisfy City parking requirements for a hotel having the same number of guest rooms and public areas contained in the Comfort Suites hotel existing on the Property as of Effective Date (i.e.; guest rooms). Accordingly, in the event the Comfort Suites hotel is destroyed or demolished, the City will allow the owner to reconstruct a hotel having guest rooms provided there are not less than 102 parking spaces. (vi) City and Agency hereby agree that water for the maintenance of landscaping installed by City or Agency in connection with the Project will be provided by City's water line and not by any water line owned by Sf:ller. 2. Thousand Six Purchase Price. The purchase price for the Fee Parcel shall be Eighty-Six Hundred and Forty Dollars ($86,640) ("Fee Parcel Purchase Price"). 3. Conveyance of Title. At the Close of Escrow, Seller shall convey by grant deed to Agency marketable fee simple title to the Fee Parcel, free and clear of all recorded and unrecorded liens, encumbrances, assessments, leases and taxes except the following (collectively, "Permitted Exceptions"): (a) Taxes for the fiscal year in which the escrow for this transaction closes, which 1197143-5 3 6-26-09 -15- shall be prorated as of the Close of Escrow and handled in accordance with Section 4986 of the California Revenue and Taxation Code; (b) Exception numbers __ through as shown on that certain title report (Order No. ), issued by Fidelity National Title Company for the Fee Parcel; and (c) Such other exceptions as Agency may approve in writing or which are created by or due to the acts or omissions of Agency. 3.1 No Monetary Liens. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall convey the Fee Parcel to Agency free and clear of all monetary liens and encumbrances other than liens and encumbrances to which Agency has expressly consented in writing. Notwithstanding anything in this Agreement to the contrary, so long as Seller has used reasonable efforts to cause Lendc;r (as defined below) to release the Fee Parcel from the lien of the deed of trust that secures the Loan (as defined in Section 1 S), Seller shall not be in breach of this Agreement if Lender refuses to provide such release. 4. Escrow; Escrow Instructions. Within five (S) business days following the Effective Date, the Parties shall open an escrow to consummate the purchase and sale of the Fee Parcel pursuant to this Agreement at the office of Fidelity National Title Company located at ("Title Company" or "Escrow Agent") or such other title company as may be mutually agreed upon by the Parties. Upon the opening of escrow, the Parties shall deposit with the Escrow Agent an e~:ecuted copy of this Agreement, which shall serve as the joint escrow instructions of the Parties for this transaction, together with such additional instructions as may be executed by the Parties and delivered to the Escrow Agent. 5. Title Policy. It shall be a condition to the close of escrow that Title Company shall deliver to Agency, no later than two (2) days prior to the close of escrow, a commitment to issue a C.L.T.A. Owner's Title Insurance Policy ("Title Policy") (or at Agency's election, an ALTA Owner's Title Insurance Policy) to be issued by Title Company in the amount of the Fee Parcel Purchase Price for the benefit and protection of Agency, showing title to the Fee Parcel vested in Agency, subject only to Permitted Exceptions, including such endorsements as may reasonably be requested by Agency, and committing Title Company to issue the Title Policy to Agency upon the close of escrow. 6. Closing Documents and Funds. (a) Seller. (A) By no later than two (2) business days prior to the Close of Escrow, Seller shall deposit into escrow all of the following: (i) The Grant Deed, substantially in the form attached hereto as Exhibit A, duly executed and acknowledged; 1197143-5 4 6-26-09 -16- (ii) Seller's affidavit of non-foreign status and Seller's certification that Seller is a resident of California, each executed by Seller under penalty of perjury as required by state and federal law; (iii) The Easement Agreement, substantially in the form attached hereto as Exhibit B, duly executed and acknowledged; (iv) Two (2) duly executed counterpart originals of the License Agreement substantially in the form attached hereto as Exhibit C. (v) Such additional duly executed instruments and documents as the Escrow Agent may reasonably require to consummate the transactions contemplated hereby. (B) Unless Seller elects to have the following charges deducted from the funds to be distributed to Seller at Close of Escrow, no later than one (1) business day prior to close of escrow, Seller shall deposit into escrow immediately available funds in the amount necessary to pay: (i) one-half of al] escrow fees. (b) Agency. (A) By no later than two (2) business days prior to the close of escrow, Agency shall deposit into escrow all of the following: (i) a duly executed Certificate of Acceptance in the form shown in Exhibit A as required by California Government Code Section 27281; (ii) The Easement Agreement, duly executed and acknowledged; (iii) Two (2;- duly executed counterpart originals of the License Agreement. (iv) such additional duly executed instruments and documents as the Escrow Agent may reasonably require to consummate the transactions contemplated hereby . (B No less than one (1) business day prior to the close of escrow, Agency shall deposit into escrow immediately available funds in the amount equal to: (i) the Fee Parcel Purchase Price as adjusted by any prorations between the Parties: (ii) one-half of all escrow fees; (iii) all recording fees; 1197143-5 5 6-26-09 -17- (iv) the cost of the Title Policy; and (v) all City and County of San Mateo transfer taxes. 7. Close of Escrow. The Parties intend to close escrow within sixty (60) days following the date upon which escrow is opened, unless this Agreement is terminated pursuant to the terms hereof or extended by mutual agreement of the Parties. The Escrow Agent shall close escrow by: (i) causing the Grant Deed and the Easement Agreement to be recorded in the official records of San Mateo County, California; (ii) issuing the Title Policy and delivering same to Agency; (iii) delivering to Seller the monies constituting the Fee Parcel Purchase Price less prorated amounts and charges to be paid by or on behalf of Seller; and (iv) delivering to Agency an original of the License Agreement and conformed copies of the Grant Deed and the Easement Agreement indicating recording information thereon; and (v) delivering to Seller an original of the License Agreement and a conformed copy of the Easement Agreement indicating recording information thereon. Possession of the Fee Parcel shall be delivered to Agency at the close of escrow. S. Closing Costs. Each Party shall pay one-half (1 /2) of all escrow fees. Agency shall pay all governmental conveyance fees and all transfer taxes, all recording fees and the cost of the Title Policy. 9. Prorations. At the Close of Escrow, the Escrow Agent shall make the following prorations: property taxes and assessments shall be prorated as of the close of escrow based upon the most recent tax bill available, including any property taxes or assessments which may be assessed after the close of escrow but which pertain to the period prior to the transfer of title to the Fee Parcel to Agency, regardless of when or to whom notice thereof is delivered. 10. Agency's Conditions to Closing. The close of escrow and Agency's obligation to purchase the Fee Parcel and Agency's and City's obligation to grant the license contemplated by the License Agreement are conditioned upon: (i) the performance by Seller of each obligation to be performed by Seller under this Agreement within the applicable time period, or the waiver by Agency or Agency of such obligation; (ii) Seller's representations and warranties contained in this Agreement being true and correct as of the Effective Date and the close of escrow; (iii) the commitment by Title Company to issue and deliver the Title Policy, subject only to the Permitted Exceptions; and (iv) Agency's approval of the condition of the Fee Parcel. Should any condition to closing fail to occur, excepting any such conditions that have been waived by Agency or City, Agency and City shall have the right, exercisable by giving written notice to Seller, to cancel the escrow, terminate this Agreement, and recover any and all amounts paid by Agency or City to Seller or deposited with the Escrow Agent by or on behalf of Agency or City. The exercise of this right by Agency or City shall not constitute a waiver by Agency or City of any other rights Agency or City may have at law or in equity. 11. Agency's Additional Conditions to Closing. Agency's obligation to purchase the Fee Parcel and Agency's and City's obligation to grant the license contemplated by the 1197143-5 6 6-26-09 -18- License Agreement are conditioned (:i) upon Agency's review and approval of the condition of the Fee Parcel, and (ii) Lender's agreement to release the Fee Parcel from the lien of the deed of trust which secures the Loan (defined in Section 15). 12. Studies, Reports and Investigations. Seller agrees to make available to Agency within five (5) business days following the Effective Date without representation or warranty of any kind, any and all information, studies, reports, investigations, contracts, leases, rental agreements and other obligations concerning or relating to the Fee Parcel or the Easement Area which are in Seller's possession or which are reasonably available to Seller, including without limitation surveys, studies, reports and investigations concerning the physical, environmental or geological condition, habitability, or 1:he presence or absence of Hazardous Materials in, on or under the Fee Parcel or the Easement Area and the compliance by the Fee Parcel and the Easement Area with Envirornnental Laws. 12.1 As used in this .Agreement, "Hazardous Materials" means any chemical, compound, material, mixture, or substance that is now or may in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below) as a "hazardous substance", "hazardous material", "hazardous waste", "extremely hazardous waste", infectious waste", toxic substance", toxic pollutant", or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term "hazardous material" shall also include asbestos or asbestos-containing materials, radon., chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits; natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable as fuel, perchlorate, and methy tert butyl ether, whether or' not defined as a hazardous waste or hazardous substance in the Environmental Laws. 12.2 As used in this Agreement, "Environmental Laws" means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations or directives, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the environment or human, plant or animal health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C;. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et sec .), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et sec .), the Clean Air Act (42 U.S.C. § 7401 et seg.), the Toxic Substances Control Act (15 U.S.C. § 2601 et sec.), the Oil Pollution Act (33 U.S.C. § 2701 et seg.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seg.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et seg.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et se .), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seg.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et sec .), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety 1197143-5 7 6-26-09 -19- Code § 25500 et seg.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300 et sew.). 13. Right of Entry. Prior to close of escrow, Agency and Agency's employees and agents shall have the right, upon reasonable notice to Seller, to enter upon the Fee Parcel and the Easement Area for the purpose of inspecting, examining, surveying and reviewing the Fee Parcel and the Easement Area. Agency's inspection, examination, survey and review of the Fee Parcel and the Easement Area shall be at Agency's sole expense. Agency shall obtain Seller's advance consent in writing to any proposed physical testing of the Fee Parcel and the Easement Area by Agency or Agency's agents, which consent shall not be unreasonably conditioned, withheld or delayed. Agency shall repair, restore and return the Fee Parcel and the Easement Area to their original condition after such physical testing, at Agency's sole expense. Agency shall schedule any such physical tests during nornial business hours unless otherwise approved by Seller. Agency agrees to indemnify Seller and hold Seller harmless from and against all liability, loss, cost, damage and expense (including, without limitation, reasonable attorney's fees and costs of litigation) resulting from Agency's or Agency's agents entry upon the Fee Parcel and the Easement Area, except to the extent that such liability, loss, cost, damage and expense arises as a result of the negligence or other wrongful conduct of Seller or its agents. 14. Seller's Conditions to Closing. The close of escrow and Seller's obligation to sell the Fee Parcel and provide the Easement pursuant to this Agreement are conditioned upon: (i) the performance by Agency and City of each obligation to be performed by Agency or City under this Agreement within the applicable time period, or waiver by Seller of such obligation; (ii) Agency's and City's representations and warranties contained in this Agreement being true and correct as of the Effective Date and the close of escrow; (iii) Lender's agreement to release the Fee Parcel from the lien of the deed of trust which secures the Loan; and (iv) the sale being exempt under the California Subdivision Map Act. 15. Seller's Representations and Warranties. The Parties agree that except as set forth in this Agreement, neither Seller nor any agent or representative of Seller has made any representations or warranties regarding the Fee Parcel or the Easement Area, including without limitation any representations or warranties concerning the Fee Parcel's or Easement Area's physical condition, access, zoning laws, environmental matters, utilities, physical equipment or fixtures on the Fee Parcel or the Easement Area, or any other matter affecting the Fee Parcel or the Easement Area or the use of the Fee Parcel or the Easement Area; and Agency has not relied and will not rely on any implied warranties, guaranties, statements, representations, or information about the Fee Parcel or the Easement Area, whether made by Seller or any agents or representatives of Seller except as set: forth in this Agreement. Agency has examined the Fee Parcel is familiar with its physical and environmental condition and accepts the Fee Parcel in its "as is" condition. Agency reserves the right to perform a standard Phase I and Phase II environmental review and analysis of the Fee Parcel. In corv~ection with the Agency's or City's purchase of the Fee Parcel in its "as is" condition; the Agency and City hereby waive, release, remise, acquit and forever discharge Seller and its affiliates, partners, shareholders, officers, directors, employees, agents, 1197143-5 $ 6-26-09 _20_ representatives and attorneys (collectively, "Released Parties") from any and all damages, losses, judgments, actions, causes c-f action, rights, demands, liabilities, costs or expenses whatsoever (including attorneys' fees, court costs and litigation expenses as and when they become due) and claims (collectively, "Losses"), whether direct or indirect, known or unknown, foreseen or unforeseen, which Agency or City now have, or may in the future have, relating to, arising on account of, or in any way growing out of or in connection with, the physical or environmental condition of the Fee Parcel (including the improvements thereon, if any) or any law or regulation applicable thereto relating to Hazardous Materials. The City and Agency expressly understand and acknowledge that it is possible that unknown problems, conditions or Losses may exist with respect to the Fee Parcel and that they explicitly took such into account in determining the Purchase Price for the Fee Parcel, and that a portion of such consideration, having been bargained for between the parties with the knowledge of the possibility of such unknown problems, conditions or claims, was given in exchange for a full accord, satisfaction and discharge of all such problems, conditions and Losses. This Section 16 shall survive any termination of this Agreement and the Closing. Agency and City expressly waive all rights under California Civil Code Section 1542, which provides that: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." Seller hereby represents and ~~varrants that except as disclosed in writing to Agency or contained in written reports provided to Agency, as of the Effective Date and as of the close of escrow, to Seller's knowledge (which means the actual knowledge of Rajen Shah and Hira Patel who are familiar with the Property and knowledgeable regarding its condition): A. Seller has not received during its ownership of the Property any notice that the Fee Parcel or the Easement Area contain Hazardous Materials or are in violation of any Environmental Law; B. Seller has not received during its ownership any notice of violation, administrative complaint, judicial complaint, or other formal or informal notice alleging ghat conditions on the Fee Parcel or the Easement Area are or have ever bc;en in violation of any Environmental Law or informing Seller that the Fee Parcel or the Easement Area are subject to investigation or inquiry regarding Hazardous Materials or the potential violation of any Environmental Law; C. Seller has not received any notice during its ownership of the Property from any gover~vnental authority of any threatened or pending zoning, building, fire; or health code violation or violation of other governmental regulations concerning the Fee Parcel or the Easement Area that have not previously been corrected; 1197143-5 9 6-26-09 -21- D. No contracts, licenses, leases or commitments regarding the maintenance or use of the Fee Parcel or the Easement Area or allowing any third party rights to use the Fee Parcel or the Easement Area are in force; E. There are no pending or threatened, actions suits, or administrative proceedings against or affecting the Fee Parcel or the Easement Area or any portion thereof or the interest of Seller in the Property; and F. Seller has disclosed to Agency all information, records, and studies in Seller's possession or reasonably available to Seller relating to the Fee Parcel and the Easement Area. Seller further represents and warrants that this Agreement and all other documents delivered or to be delivered in connection herewith prior to or at the close of escrow: (a) have been duly authorized, executed, and delivered by Seller; (b) are binding obligations of Seller; (c) are collectively sufficient to transfer all of Seller's right, title and interest in and to the Fee Parcel.; and (d) do not violate the provisions of any agreement to which Seller is a party or which affects the Fee Parcel or the Easement Area (except for the loan provided by East West Bank ("Lender") to Seller in connection with Seller's acquisition of the Property and which is secured by the Property (the "Loan"). Seller further represents and warrants that the persons who have executed this Agreement on behalf of Seller are authorized to do, that Seller has the legal right to enter into this Agreement and to perform all of its terms and conditions, and that this Agreement is enforceable against Seller in accordance with its terms. Seller shall notify Agency of~ any facts that would cause any of the representations contained in this Agreement to be untrue as of the close of escrow. If Agency reasonably believes that a fact materially and advE:rsely affects the Fee Parcel or the Easement Area, Agency shall have the option to terminate this Agreement by delivering written notice thereof to Seller. In the event Agency elects to terminate this Agreement, all funds and documents deposited into escrow by or on behalf of Agency shall be returned to Agency, and aII rights and obligations hereunder shall terminate. Seller shall indemnify, defend and hold harmless Agency from all loss, cost, liability, expense, damage or other injury, including without limitation, attorneys' fees and all other costs and expenses incurred by reason of; or in any manner resulting from the breach of any representation or warranty contained in this Section. Seller's obligations under this paragraph shall survive the closing for a period of one (1) year. Seller shall have no liability for breaches of any representations, warranties, or certifications that Seller makes in this Agreement or in any of the documents or instruments required to be delivered by Seller (and Agency shall not bring any lawsuit or other legal action against Seller or pursue any other remedies against Seller) if, at Closing, Agency or its authorized agents had knowledge of the breach by Seller (including, without limitation, knowledge gained in the course of its inspections as to a fact or circumstance that, by its nature, indicates that a representation, warranty, or certification was or has become untrue or inaccurate), and Agency elects to proceed to close the transaction contemplated by this Agreement. 1197143-5 10 6-26-09 _22_ 16. Seller's Covenants. Seller covenants that from the Effective Date and through the Close of Escrow, Seller: (i) shall not permit any liens, encumbrances, or easements to be placed on the Fee Parcel other than Permitted Exceptions; (ii) without the prior written consent of Agency, shall not enter into, or renew, replace or modify any agreement regarding the use, sale, rental, management, repair, improvement, or any other matter affecting the Fee Parcel or the Easement Area that would be binding on Agency or that would interfere with Agency's use of the Easement Area as contemplated by the Easement Agreement; (iii) shall not permit any act of waste or act that would tend to diminish the value of the Fee Parcel for any reason, except that caused by ordinary wear and tear; and (iv) shall maintain the Fee Parcel and the Easement Area in their condition as of the Effective Date, ordinary wear and tear excepted, and shall manage the Fee Parcel and the Easement Area substantially in accordance with Seller's established practices. 17. Agency's Representations, Warranties and Covenants. Agency and City represent, warrant and covenant that this Agreement and all other documents delivered by Agency or City in connection herewith, prior to or at the close of escrow: (i) have been duly authorized, executed, and delivered by Agency or City as applicable; (ii) are binding obligations of Agency and City, as applicable; and (iii) do not violate the provisions of any agreement to which Agency or City is a party. Agency and City further represent and warrant that the persons who have executed this Agreement or.~ behalf of Agency and City have been duly authorized to do, that Agency and City have the legal right to enter into this Agreement and to perform all of its terms and conditions, and that ,Agreement is enforceable against Agency and City in accordance with its terms. 18. Brokers. Each Party warrants and represents to the other that no person or entity can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other compensation with respect to the transaction contemplated by this Agreement. Each Party agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs or liabilities arising in connection with a breach of this warranty and representation. The terms of this Section shall survive the expiration or earlier termination of this Agreement. 19. Assignment. Agency shall have the right to assign all rights and obligations of Agency under this Agreement or under the Easement Agreement to the City, and no approval of any such assignment shall be necessary. 20. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; 1197143-5 11 6-26-09 -23- (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first- class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. Agency: Redevelopment Agency of the City of South San Francisco City Hall, 400 Grand Avenue South San Francisco, CA 94083 Attention: Executive Director Telephone: (650} 829-6620 Facsimile: (650) 829-6623 City: City of South San Francisco City Hall, 400 Grand Avenue South San Francisco, CA 94083 Attention: City Manager Telephone: (650) 829-6620 Facsimile: (650) 829-6623 Seller: 21. Litigation Costs. If any legal action or any other proceeding, including arbitration or action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged breach or default in connection with this Agreement, the prevailing Party shall be entitled to recover reasonablf; attorneys' fees and other costs, in addition to any other relief to which such Party may be entitled. 22. Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act; and no extension shall be valid unless in writing and 1197143-5 12 6-26-09 -24- executed by the waiving party. This Agreement may be amended or modified only by a written instrument executed by the Parties. 23. Successors. This Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors and. assignees of the Parties. 24. Provisions Not Merged With Deeds. None of the provisions, terms, representations, warranties and covenants of this Agreement are intended to or shall be merged by the Grant Deed, and neither the Grant Deed nor any other document shall affect or impair the provisions, terms, representations; warranties and covenants contained herein. Without limiting the generality of the foregoing, Seller's representations, warranties and covenants contained herein shall survive the close of escrow. 25. Construction. The section headings used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. 26. Action or Approval. Where action and/or approval by Agency or City is required under this Agreement, Agency's Executive Director or the City Manager may act on and/or approve such matter unless the Executive Director or City Manager determines in his or her discretion that such action or approval requires referral to Agency's Board or City Council for consideration. 27. Entire Agreement. This Agreement, including Exhibits A to C attached hereto and incorporated herein by this reference, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter thereto. 28. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. 29. Severability. If any term; provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force anal effect unless the rights and obligations of the Parties have been materially altered or abridged thereby. 30. No Third Party Beneficiaries. Nothing in this Agreement is intended to or shall confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder. 1197143-5 13 6-26-09 -25- 31. Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. 32. Non-Liability of Officials, Employees and Agents. No member, official, employee or agent of Agency or City shall be personally liable to Seller or its successors in interest in the event of any default or breach by Agency or City or for any amount which may become due to Seller or its successors in interest pursuant to this Agreement. 33. Time of the Essence. Time is of the essence for each condition, term, obligation and provision of this Agreement. 34. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. 35. Time for Performance. When the time for performance of any obligation under this Agreement is to be measured from another event, such time period shall include the day of the other event. If the day of the time :for performance is not a regular business day, then the time for such performance shall be by the regular business day following such day. 36. Further Assurances. Agency, City and Seller each agree to undertake such other actions as may reasonably be necessary to carry out the intent of this Agreement, including without limitation, the execution of any additional documents which may be required to effectuate the transactions contemplated hereby. SIGNATURES ON FOLLOWING PAGES. 1197143-5 14 6-26-09 -26- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO BY- ATTEST: By: Agency Secretary APPROVED AS TO FORM: By: Agency Counsel Barry M. Nagel, Executive Director CITY OF SOUTH SAN FRANCISCO By_ ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney Barry M. Nagel, City Manager SSF INVESTMENTS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY By: Print Name: Title: 1197143-5 6-26-09 Exhibit A GRANT DEED 15 _2~_ (Attach form of Grant Deed.) Exhibit B EASEMENT AGREEMENT (Attach form of Easement Agreement.) Exhibit C LICENSE AGREEMENT (Attach form of License Agreement.) 1197143-5 - 16 6-26-09 _28_ Recording Requested by and when Recorded, return to: REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO P.O. Box 711 South San Francisco, CA 94083 Attn: Executive Director EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE §§6103, 27383 (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) GRANT DEED For valuable consideration, receipt of which is hereby acknowledged, SSF Investments LLC, a California limited liability company ("Grantor") hereby grants to the Redevelopment Agency of the City of South San Francisco, a public body, corporate and politic ("Grantee") all that real property located in the City of South San Francisco, County of San Mateo, State of California described in Exhibit A-1 attached hereto and incorporated herein. IN WITNESS VV~IEREOF, Grantor has have executed this Grant Deed as of . 2009. GRANTOR: 1197143-5 17 6-26-09 -29- SSF INVESTMENTS LLC, A CALIFORNIA .LIMITED LIABILITY COMPANY :By: :Print Name: 'Title: STATE OF CALIFORNIA COUNTY OF SAN MATED) On , 20_, before me, , (here insert name and title of the officer), personally appeared ,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 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA COUNTY OF SAN MATED) On , 20_, before me, , (here insert name and title of the officer), personally appeared ,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 persons} acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 1197143-5 18 6-26-09 -30- Exhibit A-1 FEE PARCEL 1197143-5 6-26-09 (Attach legal description.) 19 -31- CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Grant Deed dated 2009, executed by SSF Investments, LLC, a California limited liability company to the Redevelopment Agency of the City of South San Francisco, a public body, corporate and politic ("Agency"), is hereby accepted on behalf of the Agency by its Executive Director pursuant to authority conferred by Resolution No. ,adopted by the Agency on , 2009, and that the Grantee consents to recordation of the Grant Deed by its duly authorized officer. Dated , 2009 By: ATTEST: By: Agency Secretary APPROVED AS TO FORM: By Agency Counsel Executive Director Print Name: 1197143-5 -32- LICENSE AGREEMENT This License Agreement (this "Agreement" or "License") is entered into effective as of 2009 ("Effective Date") by and between the City of South San Francisco, a public agency (the "City"), the Redevelopment Agency of the City of South San Francisco, a public body, corporate and politic ("Agency") and SSF Investments LLC, a California limited liability company (the "Licensee"). City, Agency and Licensee are hereinafter collectively referred to as the "Parties." RECITALS A. Licensee operates a Comfort Suites hotel (the "Hotel") in the City of South San Francisco ("City") at 121 East Grand Avenue, San Mateo County Assessor's Parcel No. 015- 024-320. B. City is the owner of the real property consisting of approximately 8344 square feet, located in the City adjacent to the Hotel site, and more particularly described in Exhibits A- 1and A-2 attached hereto and incorporated herein. C. Pursuant to that certain Agreement Affecting Real Property executed by and between City, Agency and Licensee dated as of , 2009, Licensee agreed to sell to Agency, and Agency agreed to purchase from Licensee the real property consisting of approximately 722 square feet, and more particularly described in Exhibit A-3 attached hereto and incorporated herein. The real property described in Exhibits A-1, A-2 and A-3 is hereinafter collectively referred to as the "Property." D. Licensee's predecessor in interest was the tenant under (i) that certain Lease by and between the City as Landlord, and Warmington South San Francisco Hotel Associates, a California limited partnership, as Tenant, dated as of June 12, 1985, concerning a parcel containing approximately 6379 square feet adjacent to Executive Drive (formerly Industrial Way) in the City of South San Francisco, as more particularly described in such lease, and (ii) that certain Lease by and between the City as Landlord, and Warmington South San Francisco Hotel Associates, as Tenant, dated as of June 12, 1985, concerning a parcel containing approximately 1965 square feet adjacent to Executive Drive (formerly Industrial Way) in the City of South San Francisco, as more particularly described in such lease. The foregoing leases are referred to collectively herein as the "Leases." E. On or about August 1, 2008, City notified Seller in writing of the termination of the Leases. 1229278-9 ~ 6-z6-o9 - 33 - F. Licensee desires to obtain rights to use the Property for Hotel guest parking, and City and Agency have agreed to allow Licensee to use the Property for such purpose on an interim basis, subject to the terms and conditions set forth herein. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Grant of License; License Fee; No Leasehold or Property Rights Created. Provided that on or before the Effective Date, Licensee has conveyed the property described in Exhibit A-3 to Agency fee and clear of all monetary liens, City and Agency hereby grant to Licensee a revocable license to use the Property for the sole purpose of vehicular parking by Hotel guests during their stay at the Hotel (the "Permitted Activity"). On or before the first day of each calendar month during the first year of the term hereof, Licensee shall pay to City a fee (the "License Fee") in the amount of Seven Hundred Dollars ($700) per month. For any partial month at the beginning or end of the term of this Agreement, the License Fee shall be prorated on the basis of a 30-day month. This Agreement is not intended to nor shall it be interpreted to create or vest in Licensee any leasehold or any other property rights or interests in the Property or any part thereof. 1.1 Annual Increase in License Fee. On each anniversary of the Effective Date, the License Fee shall increase by five percent (5%) so that the License Fee shall be payable in the following amounts: Months Monthly License Fee 1 - 12 $700.00 13 - 24 $735.00 25 - 36 $771.75 37 - 48 $810.34 49 - 60 $850.85 61 - 72 $893.40 73 - 84 $938.07 85 - 96 $984.97 97 - 108 $1,034.22 109 - 120 $1,085.93 1.2 Interest. Any amount due from Licensee to City which is not paid when due shall bear interest at the lesser of twelve percent (12%) per annum or the maximum rate which City is permitted by law to charge, from the date such payment is due until paid, but the payment of such interest shall not excuse or cure any default by Licensee under this Agreement. 1.3 Late Charge. Licensee acknowledges that the late payment of the License Fee will cause City to incur administrative costs and other damages; the exact amount of which would be impracticable or extremely difficult to ascertain. Licensee and City agree that if City does not receive any such payment within five (5) calendar days after such payment is due, Licensee shall pay to City an amount equal to ten percent (10%) of the overdue amount as a late charge for each month or partial month that such amount remains unpaid. The Parties acknowledge that this late 1229278-9 '' 6-z6-o9 - 34 - charge represents a fair and reasonable estimate of the costs that City will incur by reason of the late payment by Licensee, but the payment of such late charge shall not excuse or cure any default by Tenant under this Agreement. The parties further agree that the payment of late charges pursuant to Section 1.2 and the payment of interest pursuant to this Section 1.3 are distinct and separate from one another in that the payment of interest is to compensate City for the use of City's money by Licensee, while the payment of a late charge is to compensate City for the additional administrative expense incurred by City in handling and processing delinquent payments, but excluding attorneys' fees and costs incurred with respect to such delinquent payments. Acceptance of any late fees and late charges shall not prevent City from exercising any of the other rights and remedies available to City under this Agreement for any other default by Licensee. 2. Term of License . The term of the License and right of entry granted hereby, shall commence on the Effective Date and shall continue until City, Agency or Licensee terminate this Agreement pursuant to Section 3 below. 3. Termination of License . City or Agency may terminate or suspend this License by written notice to Licensee following Licensee's breach of its obligations under this Agreement if Licensee fails to cure any such breach within ten (l 0) days of written notice of default from the City. In addition, any Party may terminate this License with respect to all or any portion of the Property upon delivery of not less than thirty (30) days' advance written notice delivered in accordance with Section 8 below. 4. Conditions of Access. Licensee's right to enter upon and use the Property is limited to the Permitted Activity. Without limiting the foregoing, Licensee agrees to comply with the following specific requirements: a. Licensee shall be liable for any damage to the Property, or any other property of the City or Agency or City right of way (all of the foregoing, collectively, "City Property") that occurs as a result of this License and the use of the Property, unless caused by the sole negligence or willful misconduct of the Agency or the City or their respective employees, agents or contractors. Any damage to the City Property shall be immediately repaired to the satisfaction of City at L,icensee's sole cost and expense. b. Licensee shall not encroach on the public right of way adjacent to the Property. c. Licensee shall comply with all applicable state, federal and local laws, regulations, rules and orders, applicable to this License, the Property or the Permitted Activity, including without limitation all Environmental Laws (defined in Exhibit B attached hereto and incorporated herein by reference. Licensee shall not cause or permit any Hazardous Material (defined in Exhibit B) to be generated. brought onto, used, stored, or disposed of in or about the Property. (i) Notice of Release or Investigation. If during the term of this Agreement, Licensee becomes aware of (a) any actual or threatened release of any Hazardous Material on, under, or about the Property, or (b) any inquiry, investigation, proceeding, or claim 1229278-9 ~ 6-26-09 - 3 5 - by any government agency or other person regarding the presence of Hazardous Material on, under, or about the Property, Licensee shall give City written notice of the release or investigation within five (5) days after learning of it and shall simultaneously furnish to City copies of any claims, notices of violation, reports, or other writings received by Licensee that concern the release or investigation. (ii) Remediation Obligations. If the presence of any Hazardous Material brought onto the Property by Licensee or Licensee's agents, employees, invitees, customers, consultants, contractors or subcontractors results iri contamination of the Property, Licensee shall promptly take all necessary actions to remove or remediate such Hazardous Materials, whether or not they are present at concentrations exceeding state or federal maximum concentration or action levels, or any governmental agency has issued a cleanup order, at Licensee's sole expense, to return the Property to the condition that existed before the introduction of such Hazardous Material. Licensee shall first obtain City's approval of the proposed removal or remedial action. d. Licensee shall not impair or interfere with City's or Agency's ability to access the Property. e. Licensee expressly acknowledges and agrees that neither City nor Agency have any obligation to provide security services or fencing, and Licensee's use of the Property is at Licensee's own risk. f. Licensee expressly acknowledges and agrees that neither City nor Agency have any obligation to maintain or repair the Property, and Licensee accepts use of the Property in its AS-IS condition. g. Licensee shall, at Licensee's sole cost and expense, maintain the Property in its condition existing as of the Effective Date, reasonable wear and tear excepted, and shall keep the Property in condition free of debris, litter and graffiti. Without limiting the generality of the foregoing, Licensee shall be responsible for undertaking at Licensee's sole expense, any repair or resurfacing of the parking area on the Property and any repair or maintenance of fencing and lighting, if any. Licensee shall be responsible for payment of all utilities serving the Property. Licensee shall take reasonable steps to ensure that access to the Property is limited to Licensee and Licensee's agents, employees, invitees, and customers. h. City and Agency shall have the right at all times during the term of this Agreement to enter upon and to inspect the Property to ensure compliance with this Agreement. 5. Indemnification. Licensee agrees to indemnify; defend (with counsel approved by City) and hold City and the Agency and their respective elected and appointed officers, officials, employees, agents and representatives (all of the foregoing collectively "Indemnitees") harmless from and against all liability, loss, cost, claim, demand, action; suit, legal or administrative proceeding, penalty, deficiency, fine, damage and expense (including, without limitation, reasonable attorney's fees and costs of litigation) (all of the foregoing collectively "Claims") resulting from or arising in connection with use of the Property by Licensee or Licensee's agents, 1229278-9 ~ 6-25-09 - 36 - employees, invitees, customers, consultants, contractors or subcontractors pursuant to this License, including without limitation, Claims arising as a result of or in connection with any release of any Hazardous Material in or about the Property by Licensee, or Licensee's agents, contractors, customers or invitees, or any other violation of any Environmental Law by Licensee or Licensee's agents, employees, invitees, customers, consultants, contractors or subcontractors, except and to the extent caused solely by the gross negligence or willful misconduct of any of the Indemnitees. Licensee's indemnification obligations set forth in this Section 5 shall survive the expiration or earlier termination of this Agreement. 6. Release of Claims. Licensee hereby waives, releases, and discharges forever the Indemnitees from all present and future Claims arising out of or in any way connected with entry upon or use of the Property by Licensee or Licensee's agents, employees, invitees, customers, consultants, contractors or subcontractors pursuant to this License, including without limitation all Claims arising in connection with any injury to persons or damage to or theft of vehicles or any other personal property, except and to the extent caused solely by the gross negligence or willful misconduct of any of the Indemnitees. The provisions of this Section 6 shall survive the expiration or earlier termination of this Agreement. 7. Insurance. Throughout the term of this License, Licensee shall maintain a commercial general liability policy in the amount of at least Two Million Dollars ($2,000,000) combined single limit, or such other policy limit as City may require in its reasonable discretion, including coverage for bodily injury, property damage and contractual liability coverage. Such policy or policies shall be written on an occurrence basis, shall be issued by an insurance carrier licensed to do business in the State of California with current A.M. Best's rating of no less than A: VII, and shall name the City and the Indemnitees as additional insureds. Throughout the term of this License, Licensee shall maintain a comprehensive automobile liability coverage in the amount of at least Two Million Dollars ($2,000,000), combined single limit including coverage for owned, non-owned and leased vehicles and a Garagekeeper's Legal Liability Policy with liability limits of not less than Two Million Dollars ($2,000,000) combined single limit. Automobile liability policies shall name the Indemnitees as additional insureds. Throughout the term of this License, Licensee shall maintain worker's compensation insurance in the amount required under applicable state law, covering Licensee's employees, if any, at work at the Property or engaged in services or operations in connection with the Permitted Activity. Prior to the Effective Date, Licensee shall furnish City with certificates of insurance in form acceptable to City evidencing the required insurance coverage and duly executed endorsements evidencing such additional insured status. The certificates shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation, termination or non-renewal, except in the event of non-payment of premium a ten. (10) day notice will be provided. Coverage provided by Licensee shall be primary insurance and shall not be contributing with any insurance, or self-insurance maintained by City or Agency, and the policies shall so provide. 1229278-9 ~ 6-26-09 - 37 - The insurance policies shall contain a waiver of subrogation for the benefit of the City and Agency. Licensee shall provide City with certified copies of the required insurance policies upon City's request. 8. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant hereto shall be made in writing, and sent to the Parties at the addresses specified below, or such other address as a Party may designate by written notice delivered to the other Party in accordance with this section. Al] such notices shall be sent by: (a) personal delivery, in which case notice shall be deemed delivered upon receipt; (b) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered two (2) business days after deposit, postage prepaid in the United States mail; (c) nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) day after deposit with such courier; or (d) facsimile transmission, in which case notice shall be deemed delivered on transmittal, provided that a transmission report is generated reflecting the accurate transmission thereof. City: City of South San Francisco 400 Grand Ave. South San Francisco, CA 94080 Attn: Facsimile: (650) Agency: Redevelopment Agency of the City of South San Francisco 400 Grand Ave. South San Francisco, CA 94080 Attn: Facsimile: (650) Licensee: Attention: Phone: Facsimile: 9. Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or oral agreements, understandings, representations or statement with respect thereto. This Agreement may be amended only by a written instrument executed by the Parties hereto. 1229278-9 ~ 6-26-09 _ 3g _ 10. Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged thereby. 11. Waiver. A waiver by either party of the performance of any covenant or condition herein shall not invalidate this Agreement nor shall the delay or forbearance by either party in exercising any remedy or right be considered a waiver of, or an estoppel against, the later exercise of such remedy or right. 12. Captions; Interpretation. The section headings used herein are solely for convenience and shall not be used to interpret this Agreement. The provisions of this Agreement shall be construed as a whole according to their common meaning, and not strictly for or against any party, in order to achieve the objectives and purposes of the Parties. 13. Attorneys' Fees. In any action at law or in equity, arbitration or other proceeding arising in connection with this Agreement, the prevailing party shall recover reasonable attorney's fees and other costs, including but not limited to court costs and expert and consultants' fees incurred in connection with such action, in addition to any other relief awarded. 14. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 15. Governing Law. This Agreement, and the rights and obligations of the Parties, shall be governed by and interpreted in accordance with the laws of the State of California without regard to principles of conflicts of law. 16. No Assignment; No Third Party Beneficiaries. The rights granted hereby are personal to the Licensee and may not be transferred or assigned by operation of law or otherwise without the written consent of City. Nothing in this Agreement is intended to or shall confer upon any person other than the Parties any rights or remedies hereunder. 17. Time is of the Essence. Time is of the essence for each condition, term, obligation and provision set forth in this Agreement. 18. Possessory Interest. Licensee acknowledges that this License may create a possessory interest subject to property taxation, and that Licensee may be subject to the payment of property taxes on such interest. 1229278-9 '7 6-26-09 - 39 - IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. LICENSEE: SSF INVESTMENTS LLC, a California limited liability company, By: Print Name: Title: CITY: CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, a public body corporate and politic By: Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: Agency Counsel 1229278-9 Q 6-26-09 - 4 Exhibits A-1, A-2 and A-3 PROPERTY (Attach legal description of: (a) two areas subject to the former Leases, and (b) area to be conveyed to Agency pursuant to Agreement Affecting Real Property.) 1229278-9 Q 6-26-09 - 4 1 - Exhibit B DEFII~TITION OF HAZARDOUS MATERIAL, ENVIRONMENTAL LAWS As used in this License, the term "Hazardous Material" means any chemical, compound, material, mixture, or substance that is now or may in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below) as a "hazardous substance" "hazardous material" "hazardous waste" "extremely hazardous waste" infectious > > waste", toxic substance", toxic pollutant", or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term "hazardous material" shall also include asbestos or asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits, natural gas, natural gas liquids; liquefied natural gas, or synthetic gas usable as fuel, perchlorate, and methy tei-t butyl ether, whether or not defined as a hazardous waste or hazardous substance in the Environmental Laws. As used in this License, the term "Environmental Laws" means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations or directives, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the environment or human, plant or animal health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et sew.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et sew.), the Federal Water Pollution Control Act (33 U.S.C. ~ 1251 et seg.), the Clean Air Act (42 U.S.C. § 7401 et sew.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seg.), the Oil Pollution Act (33 U.S.C. § 2701 et se .), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et sew.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et sew.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et sec .), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et sew.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seg.), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et se .), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300 et sec .). 1229278-9 ~ n 6-26-09 - 4 2 - •ti o- i g p°o gg~ \ d `, , / ' ~ ~ o ' ~ ~, i ~i ~/ ~ ~ ~ R ~ Y t 42 ~~. ': 4 i gg S i t ~ E W \ \i b ¢ ~Z 1 ~ m ~ \ y `1 ~ ~ O F W ~ ~ \ a F- vo J / ~•~ ~ ' ~` r ~... ~ ~' is ~~ -Q, I, ~ a 0 W ~ ~ F ~ 0 JF, 1, ~ • ~ is '~ N > P- ' ~' p to ~ I. / '. ~~ / ( GAP _ N ~ n Q 2 W W ~ F /' ~ , •;, ~ Q z ~ ~ z N ~ >~ -• 7 Z ~' : hi, i-~ ~ / J ~ a i P O ~ d ~~ ~P G / ~ L~~ ~ `I ~ `,i c~ Z X . ~ b ~'- ;~ a v i i . ~ ~ i N ~ vi u vi vi ,, s ,.< 1 Rx1~~_ , ; ~ W o. - ~q ' ~ : '. ~b ~I 1 J 'A.__ _ ~\ .. 3 ~ R~ ~. 1 I~ I ~ ~ /, ,,~ I 3, - ~. ~ r ° F ' /~ ,/ rn _ r o ~ N z 0 I Q~ 4 ~ 1 ° ~~ ~ I v w x W ~ I ~ ° ~ '' 03 U~ w ,n aok' 1 ' p ~~ ~?~ 1 XN i . ~ I • i G I ~ 130 ; ~ 1 ~o I ~, ~ m ~ ~ ~ a 1. r - ~ 0 v i r ~ ~ o ~ ~ ~ s U O J ~ ~ - I I ~J ~ ~J a~ ~ ~ ~ . ~ < N ~ao . / Y ~a _--- -=-I m I `~ _ - :1 I ; - - - --- ___=- _-- - ~' Z l - --- -- i o }F I : l ~~ ONW 1 ~Z ; I Id VI 1 1W- °U W I 1 p 1 _ _ _ i ' -. -~ ~ _ _ _--- 1 . ~ I ~'..~~ w Y a ~ / - } 3 V ~ ~ ~ O ~ ~ U1 ~ _ Q N - ~ K a ~ o , s ; N, U j f ^ ~ .W . 1 k . ~ 1 W YtlLL11m RAd e-e~..arxa..~+ - 4 ~ :~\••~.o••nA••x.•~..~....n voY.a\mvr nW IItC Illlttf :YG te eo\a~t•..ulSS IOtt OYY11 MYf 'AIInOp Oe\eieii~T ~-i0 V1 - oo« YI i•~ ••T -~ ,~ .r., W 0 c o o ~ Y N •N V 7 ` Q LL v Q C rp ro v1 ~~ ~o ~ a o O ~ ~ ai '~ Q Q ~ a~ Q ~ a.+ N W -44- :g c4 ~+o °o N O ^1 yC ^~ q ~' ~0 4 c W . ~..' •~ e1~~11 ~'~1 W a c ~o Q O U v a v ro Y t a ~v 0 0 s a +~ v .~ N RDA AGENDA ITEM # 6 ~` ~~~~ ~ Redevelo meet A enc ° ~ .~ ~ y v o c~LIFOR~~~ Sta Re o~t DATE: July 8, 2009 TO: Redevelopment Agency Board FROM: Terry White, Director of Public Works SUBJECT: RESOLUTION AWARDING A CONTRACT TO D. L. FALK CONSTRUCTION, INC. FOR CONSTRUCTION OF THE EMERGENCY OPERATIONS CENTER/TRAINING CLASSROOM IN AN AMOUNT NOT TO EXCEED $714,000 RECOMMENDATION It is recommended that the Redevelopment Agency Board adopt a resolution awarding the construction contract to D.L. Falk Construction, Inc., of Hayward, California, for the Emergency Operations Center/Training Classroom (Project No. 58-13232-0930) in an amount not to exceed $714,000. BACKGROUND/DISCUSSION The current Emergency Operations Center (EOC) is located in the basement of the Main Library. It was built in 1966 to provide continuity of local government in the event of a nuclear attack. Since it was built, there have been minimal upgrades to help keep pace with the evolving emergency management needs of the City and has very limited space in which to operate. A small room at Fire Station 63 was once used as a classroom., however, since the construction of Station 61, the primary classroom used by the Fire Department for training is located in the station's garage area where the fire engines and ambulances park. Consequently, chairs, tables and AV equipment have to be set up and broken down each time training occurs. The creation of a dual use EOC/Training Classroom at the Fire Administration/Fire Station 61 complex was presented to the Agency Board in early 2005 as part of the overall master plan for the site. The project was put out to bid in December of 2005, but was ultimately rejected due to cost considerations. The item was proposed for inclusion in the 2008-2009 Capital Improvement Program (CIP) and approved at a cost not to exceed $1 million. The project has been carried over to the 2009-10 CIP. The new EOC will allow managers to simultaneously monitor local or cable news channels, the weather, or electronic resource status boards on permanently installed TV monitors or projection screens, enhancing their overall knowledge of an incident. EOC tables, supplies and equipment will be stored in locked cabinets that can be opened and placed into service within minutes. Instead of one data line, there will be 48. EOC managers will also be able to request vitally needed resources via fax, telephone, e-mail, the Internet, ham radio or by text messaging. Staff Report Subject: RESOLUTIC)N AWARDING A CONTRACT TO D.L. FALK CONSTRUCTION, INC. FOR CONSTRUCTION OF THE MERGENCY OPERATIONS CENTER/TRAINING CLASSROOM IN AN .AMOUNT NOT TO EXCEED $714,000 Page 2 of 3 Staff has taken the Board's direction in controlling costs of the project very seriously, and in September 2008 contracted with Pinnacle DB to update the EOC design documents to the 2007 Uniform Building Code, perform value engineering, and include several alternatives such as adding a 2nd floor to the EOC and Solar Panels. Staff prepared Requests for Proposals (RFPj to pre-certify prime contractors for this project. RFPs were sent to the building exchanges and advertised in the San Mateo Times in November, 2008. Staff advertised a Notice Inviting Bids for the project on May 2, 2009 and May 8, 2009.On June 2, 2009, staff received bids from six of the seven pre-certified prime contractors. The lowest responsible bidder was D. L. Falk Construction of Hayward, California. The City has experience with D. L. Falk Construction as evidenced in 2000 as they were the prime contractor for modifications to Fire Station 62 (249 Harbor Way). Below is the summary of all base bids received: Engineer's Estimate $ 798,000 D. L. Falk Construction, Inc. of Hayward, CA $ 714,000 BCI Builders, Inc. of Scotts Valley, CA $ 722,000 Page Construction Company of Novato, CA $ 746,000 John Plane Construction, Inc. of Brisbane, CA $ 789,900 Southwest Construction& Property Management of San Francisco, CA $ 849,1.13 Rubecon General Contracting, Inc. of San Francisco, CA $1,097,465 Fi TNT~TN(~'7 D.L. Falk's bid is 11% lower than the City's estimate and four bidders are grouped within staff's estimate. No Disadvantaged Business Enterprise requirements were sought as Federal or State funds are not being used for this project. Should the Board approve the EOC base bid of $714,000.00 it will obtain its goal of keeping the project cost within its $1 million target. However, staff strongly suggests consideration of add alternate 1 which allows the city the flexibility to add a 2nd story to the EOC at a future date. Funding of future improvements such as a 2nd floor, photovoltaic and solar water heating systems, etc. will result from the pursuit of grants. Shown below is the cost breakdown for the project budget: EOC Base Bid $ 714,000 Construction Contingency (l 5%) $ 107,100 Construction management/Administration (10%) $ 71,400 Funds expended to date for design and misc. costs 97 681 Total Cost $ 990,181 Staff Report Subject: RESOLUTION AWARDING A CONTRACT TO D.L. FALK CONSTRUCTION, INC. FOR CONSTRUCTION OF THE MERGENCY OPERATIONS CENTER/TRAINING CLASSROOM IN AN AMOUNT NOT TO EXCEED $714,000 Page 3 of 3 D. L. Falk Construction's costs for add alternatives are as follows: AA1 (Foundation & Roof Tn~sses for 2-Story Building) $ 75,000 AA2 (AA1 + 2nd Story Shell but No Inside Finishes) $ 225,000 AA3 (Roof Mounted Solar System for EOC) $ 77,000 AA4 (30" Minimum Height of Parapetl 1 Hour Fire Rating for Roof) $ 20,000 Funding for this project is included in the City of South San Francisco's 2009-2010 Capital Improvement Program (CIP/58-13232-0930). There is currently $902,320 remaining in the CIP budget. Should the Board decide it is in the best interest of the project to plan for the future expansion of the EOC, then staff would support the inclusion of Option AAl, the cost with appropriate contingencies would add $93,750 to the project budget and bring the total project budget to $].,083,931. The CIP would need to be amended by an additional $83,931 to cover this cost. Albeit over the Board's budget, staff feels this alternate makes good sense and allows any other items to be added later. CONCLUSION: The EOC/Classroom Project allows the City to upgrade its existing EOC facilities to meet the emergency management needs of today. Many world-wide disasters have demonstrated how important it is for local government to have robust communications systems, dependable back-up power and the ability for an EOC to operate for not only days, but weeks if necessary. Staff recommends approval of this project. y -- Terry Why' Director of Public works Approv d: ~ ~ arry M. Nage Executive Director Attachment: Resolution 1257815.1 RESOLUTION NO. REDEVELOPMENT AGENC'Y', CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AWARDING A CONTRACT TO D.L. FALK CONSTRUCTION, INC. FOR THE CONSTRUCTION OF THE EMERGENCY OPERATIONS CENTER/TRAINING CLASSROOM IN AN AMOUNT NOT TO EXCEED $714,000 WHEREAS, in December 2008, staff issued a Request for Proposals to pre-certify contractors for the project, and received ten (10) proposals; and WHEREAS, after review of the proposals, seven (7) contractors were pre- certified based on previous construction experience with Fire Stations, Emergency Operation Centers, Police stations, and/or Police Departments/Fire Station Dispatch Centers; and WHEREAS, the project was advertised and on June 2, 2009, staff received bids from six (6) pre-certified contractors; and WHEREAS, D.L. Falk Construction, Inc. of Hayward, California was the lowest responsible bidder; and WHEREAS, staff recommends awarding the construction contract to D.L. Falk Construction, Inc, of Hayward, California on the basis of their base bid and alternate bid AA 1. , in the amount of $714,000; and WHEREAS, this project .is included in the City of South San Francisco's 2009- 2010 Capital Improvement Program (CIP) and sufficient funds have been allocated to cover the project cost. NOW, THEREFORE, BE IT RESOLVED, that the Redevelopment Agency of the City of South San Francisco hereby awards the construction contract for the Emergency Operations Center/Training Classroom to D.L. Falk Construction, Inc. of Hayward, California on the basis of their base bid and alternate bid AAl, in an amount not to exceed $714,000, conditioned on D.L. Falk's timely execution of the Project contract and submission of all required documents, including but not limited to executed bonds, certificates of insurance., and endorsements, in accordance with the Project documents. BE IT FURTHER RESOLVED that the Executive Director is hereby authorized to execute the on behalf of the Redevelopment Agency. -1- ~ ~ * * ~ I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of South San Francisco at a meeting held on the day of 2009 by the following vote: AYES: NOES ABSTAIN: ABSENT: ATTEST: City Clerk 1257818.1 -2-