HomeMy WebLinkAboutReso RDA 11-1999 RESOLUTION NO. 11-99
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
RESOLUTION APPROVING A DISPOSITION AND
DEVELOPMENT AGREEMENT WITH BRITANNIA POINTE
GRAND LIMITED PARTNERSHIP
WHEREAS, the City Council of the City of South San Francisco adopted the
Redevelopment Plan for the Downtown/Central Redevelopment Project ("Redevelopment Plan")
on July 12, 1989 by Ordinance No. 1056-89; and
WHEREAS, Britannia Pointe Grand Limited Partnership ("Developer") desires to
develop a bio-tech complex to be known as the Britannia Pointe Grand Business Park ("Project")
on property located in the Downtown/Central Redevelopment Project Area ("Project Area"),
which Project is consistent with and will implement the purposes of the Redevelopment Plan;
and
WHEREAS, the Redevelopment Agency of the City of South San Francisco ("Agency")
provided an opportunity to the current owners of the property to be redeveloped to submit a
proposal to participate in the redevelopment, in conformance with the Rules Governing
Participation and Preferences by Property Owners and Business Occupants in the
Downtown/Central Redevelopment Project adopted by the Agency on April 26, 1989 by
Resolution No. 2-89, and the Agency selected Developer as the preferred owner-participant
developer for the Project; and
WHEREAS, the Planning Commission of the City of South San Francisco approved a
negative declaration of impact for the Project on pursuant to the California Environmental
Quality Act, and approved the site plan for the Project on May 20, 1999; and
WHEREAS, Developer has acquired most of the parcels comprising the property to be
redeveloped, but despite having made numerous offers to the current owners, has been unable to
acquire the remaining parcels and thus requires Agency assistance; and
WHEREAS, the Redevelopment Plan authorizes the Agency to acquire and dispose of
property in the Project Area for redevelopment purposes and to impose certain obligations upon
purchasers of such property; and
WHEREAS, the Redevelopment Plan authorizes the Agency to pay all or part of the cost
J. of certain improvements to Harbor Way and the cost of upgrading the sanitary sewer line on
Harbor Way and authorizes the Agency to cause to be constructed the utility distribution systems
necessary to carry out the Redevelopment Plan; and
WHEREAS, tho City Council of the City of South San Francisco has determined that
Agency participation in tho funding of such off-site improvements is necessary to effectuate the
purposes of the Redevelopment Plan, will benefit the Project Area, will assist in eliminating
blighting conditions in tho Project Area, and is consistent with the Agency's current
Implementation Plan, and that no other reasonable means of financing such improvements are
available; and
WHEREAS, the Agency and the Developer have finalized the terms of a Disposition and
Development Agreement ("Agreement") providing for potential Agency acquisition and resale to
Developer of the real property located at 169 Harbor Way and 185 Harbor Way, tho resale to
Developer of the real property located at 208 E. Grand Ave., currently being acquired by the
Agency, all of which will occur at no cost to the Agency, and the Agency's contribution toward
the cost of certain off-site improvements along Harbor Way; and
WHEREAS, the Agreement obligates the Developer to construct certain off-site
improvements along Harbor Way and to construct, maintain, and operate the Project in
accordance with the Redevelopment Plan, and places certain covenants and restrictions on the
real property to be conveyed to Developer;
NOW, THEREFORE, BE 1T RESOLVED by tho Redevelopment Agency of the City of
South San Francisco that the Agency hereby approves the Disposition and Development
Agreement and directs tho Executive Director to execute said Agreement and to execute any and
all other documents necessary to implement the terms and conditions thereof.
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 Regul ar meeting held
on the 14day of July ,1999 by the following vote:
AYES: Boardmembers Joseph A. Fernekes, Eugene R. Mullin, and
Chairman James L. Datzman
NOES: Boardmember Karyl Matsumoto
ABSTAIN: Boardmember John R. Penna
ABSENT: None.
I I F I I
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO
and
BRITANNIA POINTE GRAND LIMITED PARTNERSHIP
JUNE1999
DOWNTOWN/CENTRAL REDEVELOPMENT PROJECT AREA
TABLE OF CONTENTS
RECITALS ..................................................................................................................................... 1
ARTICLE 1 - DEFINITIONS ......................................................................................................... 1
Section 1.! Definitions ......................... . ...................................................................................... 1
ARTICLE II - INTENT AND RELATIONS ............................................... ~ ..... '. ........................... 3
Section 2.1 Intent ....................................................................................................................... 3
Section 2.2 Relations ................................................................................................................. 3
ARTICLE III - AGENCY ACQUISITION OF RESALE PARCELS AND SALE TO
DEVELOPER ................................................................................................................................. 4
Section 3.1 Agency Acquisition of Resale Parcels .................................................................... 4
Section 3.2 Conveyance of Resale Parcels and Grand Ave. Parcel to Developer ..................... 6
Section 3.3 Developer's Right of~,ntry and Possession ............................................................ 8
Section 3.4 No Brokers .............................................................................................................. 9
ARTICLE IV - DEVELOPER'S TRANSFER OF THE PROPERTY OR THIS AGREEMENT 9
Section 4.1 Agency Reliance on Developer's Expertise ............................................................ 9
Section 4.2 Developer's Right to Assign Agreement ................................................................ 9
Section 4.3 Developer's Right To Transfer Property .............................................................. 10
ARTICLE V - PROJECT CONSTRUCTION .............................................................................. 13
Section 5.1 Final Development Plan ........................................................................................ 13
Section 5.2 Permits and Approvals .......................................................................................... 13
Section 5.3 Construction Oversight ......................................................................................... 14
Section 5.4 Construction Schedule .......................................................................................... 14
Section 5.5 Construction Bonds ............................................................................................... 14
Section 5.6 Mitigation .............................................................................................................. 14
Section 5.7 Non-Discrimination in Employment; Payment of Prevailing Wages ................... 14
Section 5.8 Certificate of Completion ..................................................................................... 15
Section 5.9 No Chan~e in Use of Property .............................................................................. 15
ARTICLE VI - OFF-SITE IMPROVEMENTS ........................................................................... 16
Section 6.1 Developer's Obligation to Construct ......... -. ........................................................... 16
· Section 6.2 Developer's Obligation to Dedicate Property ....................................................... 16
Section 6.3 Construction Schedule .......................................................................................... 16
Section 6.4 Contract Requirements and Documents ........................................................ , ....... 17
Section 6.5. Cost Sharing and Reimbursement ......................................................................... 17
Section 6.6 Standards of Performance ..................................................................................... 18
Section 6.7 Performance and Payment l%nd ........................................................................... 19
ARTICLE VII - INSURANCE ................................................... '. ................................................. 19
Section 7.1 Insurance Requirements ........................................................................................ 19
S~ction 7.2 Insurance Policies ....................................... : ......................................................... 20
Section 7.3 Adjustments .......................................................................................................... 21
ARTICLE VIII - DEFAULT ............................ .' ........................................ '. .................................. 21
Section 8.1 Developer's Default .............................................................................................. 21
Section 8.2 Developer's Failure to Cure Default ..................................................................... 22
Section 8.3 Agency's Default .................................................................................................. 23
Section 8.4 Agency's Failure to Cure Default ................ · ......................................................... 23
ARTICLE IX - ANTIDISCRIMINATION PROVISIONS .......................................................... 24
Section 9.1 Developer's Obligations ....................................................................................... 24
Section 9.2 Binding Upon Successors ..................................................................................... 24
ARTICLE X - REPRESENTATIONS AND W~TIES .................................................... 24
Section 10.1 A~ency's Representations and Warranties ....................................................... 24
Section 10.2 Developer's Representations and Warranties ................................................... 24
SECTION XI - MISCELLANEOUS ............................................................................................ 25
.Section 11,1 Captions ............................................................................................................ 25
Section 11.2 Construction ...................................................................................................... 25
Section 11.3 Entire Agreement .............................................................................................. 25
Section 11.4 Successors and Assigns ...................................................................................... 25
Section 11.5 Notices ............................................................................................................... 25
Section 11.6 Incorporation by Reference ................................................................................ 26
Section 11.7 Execution in Counterparts .................................................................................. 26
Section 11.8 Waiver: Cumulative Remedies .......................................................................... 27
Section 11.9 Exculpation ........................................................................................................ 27
Section 11.10 Developer Shall Indemnify ............................................................................... 27
Section 11.11 Severability ....................................................................................................... 27
Section 11.12 Time ofF. ssence ................................................................................................ 27
Section 11.13 Survival of Agreements .................................................................................... 28
Section 11.14 Governing Law .................................................................................................. 28
Section 11.15 Forum Designation ............................................................................................ 28
Section 11.16 Consent ............................................................................................................. 28
EXHIBIT A - APPROVED SITE PLAN ..................................................................................... 30
EXHIBIT B - LEGAL DESCRIPTIONS OF RESALE PARCELS ............................................ 31
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is made as
of the __ Day of ,1999, by and between the REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic ("Agency")
and BRITANNIA POINTE GRAND LIMITED PARTNERSHIP ("Developer"), a Delaware
Limited Partnership:
RECITALS
WHEREAS, the City Council of the City of South San Francisco adopted the
Redevelopment Plan for the Downtown/Central Redevelopment Project ("Redevelopment Plan")
on July 12, 1989 by Ordinance No. 1056-89; and
WHEREAS, Developer proposes to develop a bio-tech complex, the Britannia Pointe
Grand Business park (the "Project"), on property located in the Downtown/Central
Redevelopment Project Area, which use is consistent with the Redevelopment Plan; and,
WHEREAS, on May 20, 1999, the Planning Commission of the City of South San
Francisco ("Planning Commission") approved the site plan for the Project, attached hereto as
Exhibit A and incorporated herein by reference; and,
WHEREAS, the Planning Commission has approved a Final DeVelopment Plan for the
Project; and,
WHEREAS, Developer has acquired most of the parcels comprising the property to be
developed, but despite having made numerous offers to the current owners, has been unable to
acquire the remaining parcels and thus requires Agency assistance.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
ARTICLE I - DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement and any agreements
supplemental hereto, the terms defined in this Article shall have the following meanings, except
as herein otherwise expressly provided:
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Disposition and Development Agreement - Final - 6/29/99 I
A. Resale Parcels means that certain real property to be acquired by Agency for
conveyance to Developer, consisting of the parcels located at 169 and 185 Harbor Way, more
particularly described in Exhibit B attached hereto, together with all privileges, rights, easements
and appurtenances thereto.
B. Grand Ave. Parcel means that certain real property located at 208 E. Grand Ave.,
being acquired by Agency for conveyance to Developer pursuant to the Contract for Property
Acquisition entered into between Agency and Developer on April 28, 1998 and incorporated
herein by this reference.
C. Improvements means any and all structures, systems, facilities, fixtures and
improvements of any kind.
D. Final Development Plan means the final development plan submitted to and
approved by the Planning Commission of the City of South San Francisco on April 1, 1999
through PUD 98-053 and amended on May 20, 1999 by PUD 98-053 Mod. #1.
E. Off-Site Improvements means the improvements defined in the final plans and
specifications entitled Harbor Way Reconstruction Project and approved by the City of South
San Francisco on June 20, 1999, incorporated herein by reference, for the work to be performed
in and along that section of Harbor Way lying between East Grand Avenue and the raikoad
tracks, including but not limited to removal, disposal, and replacement of existing AC pavement,
curb, gutter, and sidewalk, undergrounding existing utilities, and upgrading sanitary sewer and
storm drain facilities.
F. On-Site Improvements means those improvements to be constructed on any
portion of the Property according to the Final Development Plan.
G. Property means the aggregate of the Resale Parcels and the Grand Ave. Parcel.
' H. Project means the biotech complex to be constructed by Developer as described in
the Final Development Plan approved by the Planning Commission.
I. Certificate of Completion has the meaning provided in Section 5.8 of this
Agreement.
J. Deposit has the meaning provided in Section 3.1.C. of this Agreement.
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Disposition and Development Agreement - Final - 6/29/99 2
K. Affiliate of Developer has the meaning provided in Section 4.2.A. 1. of this
Agreement.
L. Prevailing Wage Policy has the meaning provided in Section 5.7.B. of this
Agreement.
ARTICLE II - INTENT AND RELATIONS
Section 2.1 Intent.
A. It is the intent of this Agreement that Agency acquire, without cost to itself and
subject to the provisions of Section 3.1., the Resale Parcels for conveyance to Developer, and
that Agency convey to Developer the Grand Ave. Parcel. It is also the parties' intent that
Developer construct the On-Site Improvements in a timely manner in conformance with the
approved site plan and Final Development Plan and the Redevelopment Plan, and that Developer
construct the Off-Site Improvements. This Agreement establishes Developer's obligations and
the assistance to be provided by Agency, and allocates between the parties the costs related to the
Off-Site Improvements, as provided by Article VI.
B. Agency Reliance. This Agreement is entered into by Agency with the specific
understanding and relying on the assurances and covenants of Developer that it will timely
design and construct the Project according to the approved site plan and Final Develop:nent Plan.
Section 2.2 Relations.
A. Private Project. The redevelopment of the Property pursuant to this Agreement is
a private project and Developer shall have full power over and exclusive control of the Property,
subject only to the limitations and obligations imposed by this Agreement, the Redevelopment
Plan, permit conditions or conditions of Agency approval, and all uniformly applicable laws and
requirements. Although the parties are committed to cooperation, this Agreement shall not
prevent Agency from performing its usual review, regulatory and advisory functions in relation
to the Property and the Project.
B. No Joint Venture. Nothing in this Agreement is intended to or does establish the
parties as partners, co-venturers, or principal and agent with one another.
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Disposition and Development Agreement - Final - 6/29/99 3
ARTICLE III - AGENCY ACQUISITION OF RESALE PARCELS AND SALE TO
DEVELOPER
Section 3.1 Agency Acquisition of Resale Parcels.
A. Agency Use of Eminent Domain. Agency agrees to promptly conduct a hearing
to consider exercising its power of eminent domain to acquire the Resale Parcels. Developer
acknowledges that Agency's decision to acquire the Resale Parcels by eminent domain is subject
to the requirements of Code of Civil Procedure section 1230.010, et seq. and that Agency has
discretion to determine whether or not it should adopt a Resolution of Necessity regarding either
or both of the Resale Parcels (hereinafter the term "Resolution of Necessity," when used with
respect to the Resale Parcels and unless the context demands otherwise, shall include one or
more Resolutions of Necessity covering either or both of the Resale Parcels.) Agency shall
proceed in a prompt and diligent manner to make such determination, and if a Resolution of
Necessity is adopted, to acquire the applicable Resale Parcels.
B. Acquisition Costs. Developer shall pay all of the direct and indirect costs and
expenses associated with acquiring the Resale Parcels and their conveyance to Developer
including, without limitation:
1. the fair market value of the property to be acquired;
2. appraisal fees;
3. title reports and any required environmental assessments;
4. preparation of documents for the public hearing on the Resolution of
Necessity, including attorney's fees and the cost of publishing;
5. relocation assistance, as required by the California Relocation Assistance
, Act, as well as Agency's payments to its relocation consultant;
6. court costs, including but not limited to, filing fees and fees for
preparation of transcripts;
7. costs of litigation and trial, including document preparation, expert witness
fees, and reasonable attorney's fees (Agency, at its option, is authorized to
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Disposition and Development Agreement - Final - 6/29/99 4
contract for counsel for the prosecution of any necessary eminent domain
action. Developer agrees to pay Agency the reasonable actual cost of
attorney's fees paid to any counsel under the contract with that counsel.);
and
8. any award made by the court to the defendants, including but not limited
to, market value in excess of the amount estimated pursuant to item B.1.
above, severance damages, loss of goodwill, attorney's fees, appraiser's
fees, expert witness fees, and all other costs, the sum of which shall be
paid to Agency within ten (10) days of the entry of judgment, whether or
not the eminent domain action results in the acquisition of the real
property sought to be condemned.
C. ~Deposit and Payments. Upon adoption of a Resolution of Necessity for either or
both of the Resale Parcels, Developer shall make a cash deposit with Agency for the parcel or
parcels that are the subject of such resolution, in the amount of a preliminary estimate of that
portion of Agency's acquisition costs represented by items B. 1. through B.5. above.
In advance of Agency incurring any of the costs or expenses referenced in items B.6.,
B.7., and B.8. above and upon written notification by Agency, Developer shall make a cash
deposit in the amount set forth by Agency within fifteen (15) calendar days. Such deposit will
not exceed a reasonable estimate of Agency's anticipated costs and expenses.
Hereinafter the term "Deposit" shall mean the total amount on deposit with Agency for
Agency's acquisition of either or both of the Resale Parcels, pursuant to this Section 3.1.C.,
together with interest accrued.
If at any time the Deposit is insufficient to cover reasonably anticipated expenses,
Agency shall notify Developer in writing and Developer shall deposit the necessary additional
funds within fifteen (15) calendar days. In no event shall the Deposit decline to less than
$1,500.00 and Developer shall promptly replenish the Deposit when requested by Agency.
Agency shall hold the Deposit in a separate interest-bearing account. Any unused portion
of the Deposit remaining after the Resale Parcels are conveyed to Developer shall be promptly
refunded to Developer. Agency shall provide Developer an accounting of the acquisition costs
and expenses that are anticipated, or have been incurred or committed by Agency (i) upon any
request of Agency for additional funds, (ii) after the Resale Parcels have been conveyed to
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Disposition and Development Agreement - Final - 6/29/99 5
Developer, and (iii) upon the request of Developer, at any other time and from time to time
during the pendency of any proceedings or preparations for proceedings under this Agreement.
Agency may elect to suspend the condemnation action until Developer has made a
required deposit. In that event, Developer shall pay any damages, claims or sanctions resulting
from Agency's suspending condemnation proceedings.
D. Consultation. Agency shall keep Developer apprised of negotiations with affected
property owners and consult with Developer during the course of negotiations and any eminent
domain proceedings, particularly with regard to any negotiated settlement of the eminent domain
action between Agency and the condemnee(s). If a proposed settlement is not approved by
Developer, the eminent domain suit shall proceed. Agency agrees to consult with Developer
prior to engaging counsel, approving fee budgets or making any other commitment for costs for
which Develgper will be responsible under this Article III, although Developer acknowledges
that Agency shall have the final decision regarding any such matters, subject to Developer's right
of termination under Section 3.1.E. of this Agreement.
E. Terminating the Action. At Developer's request Agency shall formally abandon
the eminent domain suit. Developer shall remain responsible for all direct and indirect costs
incurred up to that time as provided in Paragraph B above, including, without limitation, the
condemnee's litigation expenses. Any remaining Deposit after Agency has paid all such costs
will be promptly refunded to Developer. Agency may proceed with prosecution of the action,
however, if abandonment of the suit would adversely affect Agency's public interest or if the
court sets the abandonment aside, but any such continuation after Developer's termination shall
be at Agency's sole expense as to any and all direct and indirect costs incurred thereafter in
connection with such continuation.
F. No Contact. During the period from the date of this Agreement until termination
of this Agreement or Agency's conveyance of title to the Resale Parcels to Developer (whichever
occurs first), Developer agrees to have no contact with the affected property owners regarding
property acquisition or value except in the presence of and with the agreement of Agency's
condemnation attorney, or as otherwise agreed to by Agency.
Section 3.2 Conveyance of Resale Parcels and Grand Ave. Parcel to Developer.
A. Sale and Purchase. Upon acquisition of the properties pursuant to this
Agreement, Agency shall sell to Developer, and Developer shall purchase from Agency, the
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Disposition and Development Agreement - Final - 6/29/99 6
Resale Parcels and Grand Ave. Parcel on the terms and conditions of this Agreement.
B. Purchase Price - Resale Parcels. The purchase price for each of the Resale Parcels
shall be: Agency's actual acquisition and conveyance costs for such Resale Parcel as determined
pursuant to Section 3.1.B above (the "Purchase Price for Resale Parcel"). Amounts deposited by
Developer with Agency pursuant to Section 3.1.C of this Agreement shall be credited toward
Developer's payment to Agency of such Purchase Price for Resale Parcel. Any unpaid portion of
the Purchase Price for Resale Parcel shall be paid by Developer to Agency prior to transfer of
such Resale Parcel to Developer. The estimated Purchase Price for Resale Parcel as used herein
is Seven Hundred Forty Thousand Dollars ($740,000.00) for the Resale Parcel located at 169
Harbor Way, and Nine Hundred Sixty Five Thousand Dollars ($965,000.00) for the Resale
Parcel located at 185 Harbor Way. Agency does not warrant said amounts, which may be subject
to change. Agency shall provide Developer with copies of all documents and invoices relating to
Agency's costs for the purchase, any required hazardous materials remediation, and related
acquisition and conveyance costs with respect to each Resale Parcel.
C. Purchase Price - Grand Ave. Parcel. The purchase price for the Grand Ave. Parcel
shall be: Agency's actual acquisition and conveyance costs as determined pursuant to that certain
Contract for Property Acquisition entered into by Agency and Developer on April 28, 1998 and
incorporated herein by reference (the "Purchase Price for Grand Ave. Parcel"). Amounts
deposited by Developer with Agency pursuant to Paragraph 2 of said Contract shall be credited
toward Developer's payment to Agency of the Purchase Price for Grand Ave. Parcel. Any
remaining amount of the Purchase Price for Grand Ave. Parcel will be paid by Developer to
Agency prior to transfer of the Grand Ave. Parcel to Developer. The estimated Purchase Price
for Grand Ave. Parcel as used herein is Six Hundred Twenty Thousand Dollars ($620,000.00).
Agency does not warrant said amount, which may be subject to change. Agency shall provide
Developer with copies of all documents and invoices relating to Agency's costs for the purchase,
any required hazardous materials remediation, and acquisition and conveyance costs with respect
to the Grand Ave. Parcel.
- D. Delivery of Deed and Conditions of Title. Upon Agency's acquisition of each of
the Resale Parcels and the Grand Ave. Parcel, Agency shall promptly record its title to such
parcel in the San Mateo County Recorder's Office and, contingent upon Developer's satisfaction
of the conditions precedent contained herein, shall concurrently convey title to such parcel to
Developer by Grant Deed, with such title being subject to the conditions of the Redevelopment
Plan as such plan then exists or is thereafter from time to time amended and the provisions of this
Agreement, and containing the anti-discrimination covenants required by law.
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Disposition and Development Agreement - Final - 6/29/99 7
E. Conditions. Agency's obligation to sell each of the Resale Parcels and Grand
Ave. Parcel pursuant to this Agreement is contingent on Developer's satisfaction of each
condition precedent under this Agreement. Should these conditions fail, Agency shall have the
right to cancel its sale of such Resale Parcel or Grand Ave. Parcel to Developer, exercisable by
the giving of written notice to Developer. Upon Agency's cancellation of such sale pursuant to
this Section 3.2.E., Agency shall promptly refund to Developer any portion of the Deposit for
such Resale Parcel or Grand Ave. Parcel remaining after Agency has paid all costs identified in
Section 3.1.B. of this Agreement. If cancellation occurs after Agency acquires title to any part or
parcel of the Property and before Agency conveys title to same to Developer, the provisions of
Section 8.2.A. regarding resale of such part or parcel of the Property and disposition of the
proceeds of such resale shall apply.
Section 3.3 Developer's Right of Entry and Possession.
A. On March 1, 1999, Agency obtained an Order for Prejudgment Possession -
Action in Eminent Domain in its pending eminent domain proceeding with respect to the Grand
Ave. Parcel, Action No. 407962 in the San Mateo County Superior Court. Pursuant to that Order,
Agency hereby grants Developer the right of entry on, and joint possession of, the Grand Ave,
Parcel, effective as of July 5, 1999.
B. To the extent that Agency hereafter initiates eminent domain proceedings with
respect to either or both of the Resale Parcels and obtains an Order for Prejudgment Possession
with respect to such Resale Parcel(s), Agency hereby grants Developer the right of entry on, and
joint possession of, such Resale Parcel(s), effective as of the date on which Agency obtains
possession of the applicable Resale Parcel pursuant to such Order.
C. The rights of entry and possession granted in this Section 3.3 shall be exercised at
Developer's own risk and are limited to carrying out those activities necessary and appropriate to
the timely and successful completion of the Project as described herein. In the event that, for
whatever reason, Agency does not eventually convey title to Developer as contemplated herein to
any parcel as to which rights of entry and possession granted by Agency to Developer pursuant
to this Section 3.3 have become effective, Developer agrees to and shall release Agency from any
and all claims relating to Developer's entry on and possession of such parcel and any
improvements made by Developer thereto.
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Disposition and Development Agreement - Final - 6/29/99 8
Section 3.4 No Brokers. Each Party represents that it has dealt with no brokers with
respect to the transactions contemplated by this Agreement, and that no broker or person is
entitled to any commission, finder's fee or other similar compensation by virtue of the
transactions. Each party hereby defends and indemnifies the other against any and all claims,
losses, liability and damages, including reasonable attorney's fees, in connection with any
commissions, finder's fees or other similar compensation sought, based upon some obligation of
the indemnifying party with respect to the transactions.
ARTICLE IV - DEVELOPER'S TRANSFER OF THE PROPERTY OR THIS
AGREEMENT
Section 4.1 Agency Reliance on Developer's Expertise. The qualifications,
experience and expertise of Developer are of particular concern to Agency. It is because of these
qualifications, experience and expertise that Agency has entered into this Agreement. No
voluntary or involuntary successor in interest to Developer shall acquire any rights or privileges
under this Agreement, except as hereinafter provided.
Section 4.2 Developer's Right to Assign Agreement.
A. During the term of this Agreement, Developer shall have the right and privilege to
assign or otherwise transfer this Agreement to such other persons, firms, corporations,
partnerships, joint ventures, and federal, state or municipal government or agency thereof, as
Developer shall select (the "Assignee"), provided, however, that:
1. Developer must obtain the prior written consent of Agency to the proposed
Assignee, which consent shall not be unreasonably withheld (and Agency agrees that it
will not withhold such consent if the proposed Assignee is a person or entity that
controls, is controlled by, or is under common control with Developer (hereinafter an
"Affiliate of Developer"));
, 2. such assignment shall be made expressly subject to this Agreement;
3. there shall be delivered to Agency a duly executed and recordable copy of the
document evidencing such assignment, including a suitable estoppel agreement(s); and
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Disposition and Development Agreement - Final - 6/29/99 9
4. such assignment shall not be effective to bind Agency until the Assignee has
assumed all obligations of Developer under this Agreement and notice thereof is given to
Agency, and such notice shall designate the name and address of the Assignee.
B. Said Assignee shall succeed to all rights and privileges of Developer under this
Agreement subject, however, to assuming all duties and obligations of Developer in and
pertaining to this Agreement. Developer shall not be released and discharged from any of its
duties and obligations hereunder without the written consent and release of Agency, which
consent and release will not be unreasonably withheld.
Section 4.3 Developer's Right To Transfer Property.
A. Transfer Before or During Construction. Prior to issuance by Agency of a
Certificate of Completion (as defined,in Section 5.8) regarding an individual part or parcel of the
Property, Developer shall not, without the prior written approval of Agency, sell, ground lease,
or otherwise convey ("Transfer") such part or parcel of the Property. This prohibition shall not
prevent the granting of temporary easements or permits to facilitate development or the
dedication of property required pursuant to this Agreement, nor the granting of security interests
in the Property as provided in Section 4.3.F, nor any leasing, whether before or after acquisition
of the Property, of Improvements constructed or to be constructed on the Property.
B. Agency Review and Approval. If Developer proposes a Transfer of the Property,
or any part or parcel of it, prior to Agency's issuance of a Certificate of Completion, Developer
shall provide prompt written notice to Agency. The proposed transferee shall have the
qualifications and financial responsibility to fulfill the obligations undertaken by Developer
through this Agreement, as determined by Agency in its reasonable discretion (except that any
Affiliate of Developer will be deemed to have the requisite qualifications). There shall be
submitted to Agency for review all instruments and other legal documents proposed to effect any
such Transfer, and any determination by Agency shall be given to Developer in writing. Any
transferee, by instrument in writing satisfactory to Agency and in form recordable among the
land, records, for itself and its successors and assigns, and for the benefit of Agency shall
expressly assume all of Developer's obligations under this Agreement and shall be subject to all
the conditions, covenants and restrictions to which Developer is subject.
C. No Encumbrances. After Agency's transfer of title to any part or parcel of the
Property to Developer, Developer shall pay the real estate taxes and any special assessments on
such property when due and shall not place or permit any lien or other encumbrance to be placed
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Disposition and Development Agreement- Final - 6/29/99 10
on such property except as authorized by Agency or as permitted by Section 4.3.F of this
Agreement, and shall not suffer any levy or attachments to be made upon such property or to be
or remain a charge or encumbrance on or against such property except as authorized in writing
by Agency or as permitted by Section 4.3.F of this Agreement. Agency will not pursue any
remedies under Section 4.3.D until after Agency has given Developer written notice of an
encumbrance disallowed under this Section 4.3.C and such encumbrance has continued for thirty
(30) days after such written notice.
D. Agency's Remedies. The remedies provided herein below are not Agency's
exclusive remedies and shall not prevent Agency from pursuing any other remedies available to
it under law or this Agreement.
1. Agency's Right of Reentry. For breach of any of the conditions of
Paragraphs 4.3.A. and 4.3.C., Agency shall have a fight of reentry and the estate to be conveyed
to Developer pursuant to this Agreement shall revert to and be revested in Agency. PROVIDED,
the rights of forfeiture, reentry, and reverter of title reserved by Agency shall be subject to and
shall not impair the lien of any mortgage or trust deed authorized by Agency for the protection of
the holders of any evidence of indebtedness secured by any such mortgage or trust deed. Rights
of forfeiture, reentry, and reverter of title hereby reserved by Agency shall not apply to any part
or parcel of the Property for which Agency has issued a Certificate of Completion and which has
been Transferred to other parties.
In the exercise of Agency's rights of forfeiture, reentry and reverter of title hereby
reserved, Agency shall have the fight to execute and record in the San Mateo County Recorder's
Office a written declaration of termination of all the fights and title of Developer, its successors
and assigns, in the Property and the revesting of title in Agency, except as to any such individual
parts or parcels which have been Transferred after Agency's issuance of a Certificate of
Completion, and subject to such mortgage lien and trust deed interests as provided in the
foregoing proviso.
, Upon revesting of title in Agency pursuant to this Section 4.3, Agency shall diligently
proceed to use its best efforts to resell the Property consistent with its obligations under law. The
proceeds of such resale shall be applied as follows, and subject to the provisions of Paragraph
4.3.D.2. below:
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Disposition and Development Agreement - Final - 6/29/99 11
(a) First, to reimburse Agency for any and all costs it incurs in managing or
selling the Property, including but not limited to expenditures to discharge or prevent liens or
encumbrances arising from any acts or omissions of Developer;
(b) Second, to repay any outstanding debts owed by Developer to Agency;
(c) Third, such funds to Developer as may be available to reimburse
Developer to the extent of the Purchase Price and any other amounts related to Developer's
acquisition of the portion of the Property reverting to Agency that Developer has paid to Agency,
the reasonable cost of any On-Site Improvements Developer has made to the portion of the
Property reverting to Agency, and a share of the reasonable cost of Off-Site Improvements borne
by Developer proportionate to the amount of the Property reverting to Agency, PROVIDED, that
the amount payable to Developer pursuant to this paragraph shall be reduced by any amount
received by Developer in consideration of its Transfer to a third party of the portion of the
Property reverting to Agency; and,
(d) Fourth, any remaining balance to Agency.
2. Restitution for Improper Transfer. It is the intent of this Agreement that
the Property not be subject to speculation. Therefore if, in violation of this Agreement,
Developer completes a Transfer of any part or parcel of the Property before recording a
Certificate of Completion and without the approval of Agency, Agency shall, in addition to all
other rights and remedies available to it, be entitled to Developer's profits defined as tl~e amount
that the consideration payable to Developer for the Transfer exceeds the sum of (a) the Purchase
Price and any other amounts related to Developer's acquisition of the portion of the Property
reverting to Agency that Developer has paid to Agency and (b) the reasonable costs of
Developer's improvement and development of such portion of the Property, including carrying
charges, interests and fees, transfer taxes, real estate taxes, assessments and commissions, escrow
fees and costs related thereto, and (c) a share of the reasonable cost of Off-Site Improvements
borne by Developer proportionate to the amount of the Property reverting to Agency.
Developer's profits as determined above, shall belong and be paid to Agency and until paid,
Agency shall have a lien in such amount on such property transferred.
E. Transfer Following Completion of On-Site Improvements. After Developer
records a Certificate of Completion for any part or parcel of the Property, no Agency approval is
needed for a Transfer of such part or parcel. However, any Transferee shall be subject to all
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continuing conditions, covenants and restrictions of this Agreement with respect to the part of the
Property acquired by such Transferee.
F. Granting of Security Interest. Developer may grant a reasonable security interest
in the Property, but only to the extent needed to obtain the necessary financing for acquiring and
developing the Property pursuant to this Agreement. Developer shall promptly provide Agency
with a copy of any security instrument encumbering the Property, which instrument shall contain
the provisions of this paragraph relating to the holder's right to cure. The holder of a security
interest is not obligated to construct or complete any Improvement to be made under this
Agreement or to guarantee such construction or completion. The holder of a security interest
shall have the right to cure or remedy any default or breach by Developer and to add the cost
thereof to the secured debt and the lien on its security interest. However, such holder shall not be
permitted to undertake or continue any construction or other improvement beyond those
necessary to conserve or protect existing Improvements without first having expressly assumed
in writing Developer's obligations under this Agreement.
ARTICLE V - PROJECT CONSTRUCTION
Section 5.1 Final Development Plan. Developer has submitted to Agency a Final
Development Plan for the Project, which has been approved by Agency as being in conformity
with the Redevelopment Plan. The Final Development Plan forms a part of this Agreement and
is incorporated herein by this reference. Developer covenants and agrees for itself, its successors
and assigns, that it shall devote the Property to and only to and in accordance with the uses
specified in the Final Development Plan. Any material change, modification, revision or
alteration of the approved Final Development Plan shall be submitted to Agency for its approval
and Agency shall approve or disapprove within fifteen (15) days of submittal and, if not
approved or disapproved within said fifteen (15)day period, such change, modification, revision
or alteration shall be deemed approved.
Section 5.2 Permits and Approvals. Developer shall be responsible for providing
necessary environmental checklists and for obtaining building and mechanical permits, electric,
water, and all other required permits or approvals for construction of the Project. Developer
acknowledges that execution of this Agreement by Agency does not limit in any manner the
discretion of the City of South San Francisco in the approval process, and does not relieve
Developer from the obligation to obtain all necessary permits. Developer shall promptly pay
when due all customary and reasonable fees and charges of the City of South San Francisco in
connection with the processing and consideration of City permits and approvals.
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Section 5.3 Construction Oversight. Agency shall have the right upon reasonable
advance notice to enter the Property at any time during the design and construction of the Project
for the purpose of inspecting the same to assure itself that the Project is being developed pursuant
to the Final Development Plan and the terms of this Agreement.
Section 5.4 Construction Schedule. Within 6 months of Agency conveying title to
Developer to any part or parcel of the Property, Developer shall promptly begin the construction
of the On-Site Improvements for said part or parcel of the Property and shall diligently prosecute
to completion. Developer shall complete all On-Site Improvements necessary to receive its
Certificate of Completion for such part or parcel of the Property within four years ofbegirming
construction, excluding time periods when the design, construction or development of the On-
Site Improvements is unavoidably delayed by disruptions caused by labor disputes, acts of God,
wars, fires, floods, epidemics, quarantine restrictions, freight embargoes, or other circumstances
clearly beyond Developer's control; Provided, however, that said date may be extended by
Agency upon timely written request by Developer.
Section 5.5 Construction Bonds. Before beginning construction, Developer shall
deliver to Agency copies of any labor and material bonds and performance bonds that may be
required by Developer's lenders. Such bonds shall name Agency as co-obligee.
Section 5.6 Mitigation. It shall be Developer's sole responsibility to implement all
mitigation and monitoring measures required by Agency or the City of South San Francisco
pursuant to the California Environmental Quality Act.
Section 5.7 Non-Discrimination in Employment: Payment of Prevailing Wages.
A. During construction of the Project, Developer shall not discriminate on the basis
of race, religion, sex, or national origin in the hiring, firing, promoting or demoting of any person
engaged in the construction work and shall direct its contractors and subcontractors to refrain
from discrimination on such basis.
B. On November 12, 1997, Agency approved Resolution No. 15-97, adopting a
prevailing wage policy for redevelopment projects meeting certain criteria for Agency
involvement ("Prevailing Wage Policy"), which policy is incorporated herein by reference.
Developer acknowledges receipt of the Prevailing Wage Policy and hereby agrees to comply
with its requirements in Developer's construction of the On-Site Improvements. Developer shall
include in its contracts for construction of the On-Site Improvements provisions requiring each
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Disposition and Development Agreement - Final - 6/29/99 14
contractor and subcontractor to comply with the applicable requirements of the Prevailing Wage
Policy.
Section 5.8 Certificate of Completion. Agency covenants and agrees that after
completion of each of the On-Site Improvements on the Property or on an individual part or
parcel of the Property, it will furnish an appropriate instrument so certifying as to the Property or
the individual part or parcel respectively (the "Certificate of Completion"). Such Certificate of
Completion shall be a conclusive determination of the satisfaction and termination of the
restrictions, agreements, and covenants with respect to the obligations of Developer, and its
successors and assigns, to construct the On-Site Improvements on the Property or individual part
or parcel of it as the case may be, and shall be in such form as can be recorded in the San Mateo
County Recorder's Office. Agency further covenants and agrees that such Certificate of
Completion shall mean and provide that any party purchasing or leasing such individual parts or
parcels of the Property shall not because of such purchase or lease incur any obligation with
respect to the construction of the On-Site Improvements relating to such part or parcel or to any
other part or parcel of the Property, and shall mean and provide that Agency shall not thereafter
be entitled to exercise any rights, remedies, or controls with respect to such individual part or
parcel of the Property that it would otherwise be entitled to exercise by reason of default or
breach by Developer, except as provided herein.
The Certificate of Completion provided for herein, and referenced elsewhere in this
Agreement is separate and distinct from and is not intended to function as a "Notice of
Completion" pursuant to California Civil Code Section 3093. The Certificate of Completion
shall not be deemed or construed to constitute evidence of compliance with or satisfaction of any
obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage, securing
money loaned to finance the construction of the Improvements.
Section 5.9 No Change in Use of Property. Developer covenants and agrees that, after
receiving a Certificate of Completion for a particular part or parcel of the Property and during the
remaining life of the Redevelopment Plan, it will make no major changes in the On-Site
Improvements on that part or parcel of the Property or in the utilization of such part or parcel of
the Property without Agency's written approval, which approval shall not be unreasonably
withheld.
ARTICLE VI - OFF-SITE IMPROVEMENTS
Section 6.1 Developer's Obligation to Construct, As additional consideration for
Agency's entering into this Agreement, Developer hereby agrees to construct the Off-Site
Improvements in accord with the terms of this Article VI. Developer's obligation to construct the
Off-Site Improvements is not conditioned upon Agency's involvement in Developer's acquisition
of the Property or any part or parcel of it.
Section 6.2 Developer's Obligation to Dedicate Property. Developer shall dedicate for
public rights-of-way such property as is reasonably needed for the construction, maintenance,
and public use of the Off-Site Improvements, and as required by the plans and specifications for
such Off-Site Improvements and the conditions of Project approval. Developer's obligation to
dedicate property pursuant to this Section 6.2 is not conditioned upon Agency's involvement in
Developer's acquisition of the Property or any part or parcel of it.
Section 6.3 Construction Schedule.
A. Developer shall promptly begin construction of the Off-Site Improvements within
three (3) months of the effective date of this Agreement and shall diligently prosecute to
completion. Developer shall complete the construction of the Off-Site Improvements within four
(4) months of beginning construction, excluding time periods when the design, construction or
development of the Off-Site Improvements is unavoidably delayed by disruptions caused by
labor disputes, acts of God, wars, fires, floods, epidemics, quarantine restrictions, freight
embargoes, or other circumstances clearly beyond Developer's control; Provided, however, that
said date may be extended by Agency upon timely written request by Developer.
B. Construction of the Off-Site Improvements shall be considered completed when all
of the following have occurred:
(1) Developer has certified to Agency that the Off-Site Improvements
have been completed in conformance with the final plans and specifications and this Agreement;
(2) All liens upon the Off-Site Improvements (or claims which with
notice or passage of time or both would mature into a lien) have been satisfied or bonded;
(3) Developer has delivered to Agency all plans, as-built drawings,
and manuals for the Off-Site Improvements; and,
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(4) Developer has removed all of the waste materials and rubbish from
and about the Off-Site Improvements and adjacent property, as well as all of its contractors' and
subcontractors' tools, construction equipment, machinery, and surplus materials.
Section 6.4 Contract Requirements and Documents.
A. Developer shall confer with Agency and the City Engineer of the City of South
San Francisco to develop mutually agreed contract documents for construction of the Off-Site
Improvements. To the greatest extent feasible, contracts relating to the construction of Off-Site
Improvements shall be awarded to business concerns which are located in, or owned in
substantial part by persons residing in, the Downtown/Central Redevelopment Project Area.
Developer shall comply with the requirements of the Prevailing Wage Policy in its construction
of the Off-Site Improvements and shall assure that each contractor and subcontractor shall
comply with the requirements of the Prevailing Wage Policy.
B. Developer shall provide copies of all contracts relating to construction of the Off-
Site Improvements to Agency so that Agency may verify that the contract amount has been
clearly fixed and determined, the construction schedule conforms to the schedule provided in this
Agreement, the contract provides for compliance with the Prevailing Wage Policy, and the
covenants as to non-discrimination in employment contained in Section 5.7 herein have been
fulfilled. Unless Agency notifies Developer in writing within fifteen (15) days of submission of
the contract that the contract has been disapproved it shall be deemed approved. Any such review
or approval by Agency shall in no event constitute or be construed as a certification of the
sufficiency of such contract.
Section 6.5. Cost Sharing and Reimbursement.
A. It is the intent of the parties that the Total Actual Construction Cost for the Off-
Site Improvements be limited to a sum certain and be shared by Agency and Developer equally.
As used herein, the phrase "Total Actual Construction Cost" shall mean the sum of all direct and
indirect costs incurred or expended by Developer in constructing the Off-Site Improvements.
Total Actual Construction Cost shall include, but not be limited to, design and engineering,
utility undergrounding, the Harbor Way street reconstruction, and any removal and disposal of
contaminated material, but shall not include any profit to Developer.
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B. Agency and Developer hereby agree that the Total Actual Construction Cost shall
not exceed One Million and Two Hundred Thousand Dollars ($1,200,000.00) (the "Cost
Ceiling"). Before entering into any contract for construction of the Off-Site Improvements,
Developer shall provide to Agency a detailed Schedule of Values Line Item Budget indicating
the estimated costs used to determine the Total Actual Construction Cost. If the estimated Total
Actual Construction Cost exceeds the Cost Ceiling established herein, Agency and Developer
shall cooperate in identifying mutually agreed ways to reduce the estimated costs. If Agency and
Developer are unable, despite their best efforts, to reduce the estimated Total Actual
Construction Cost to an amount that does not exceed the Cost Ceiling, then Agency agrees to
seek approval from its Board to increase the Cost Ceiling to a reasonable amount as such amount
is mutually determined by Agency and Developer.
C. Agency and Developer shall execute a written memorandum evidencing their
agreement as to the estimated Total Actual Construction Cost and the Cost Ceiling and shall
append the Schedule of Values Line Item Budget to such memorandum. During the construction
of the Off-Site Improvements, Developer shall consult with Agency before issuing or agreeing to
any change orders or other revisions to the final plans and specifications for the Off-Site
Improvements.
D. When Agency has certified that construction of the Off-Site Improvements has
been completed, Agency and Developer shall conduct a final audit to determine the Total Actual
Construction Cost and shall execute a written memorandum evidencing their agreement to same.
Agency's share of the Total Actual Construction Cost shall be calculated as one-half of such
amount, but in no event shall be greater than one-half of the Cost Ceiling. Agency will pay to
Developer its share of the Total Actual Construction Cost within fifteen (15) days of the
execution of the memorandum establishing the Total Actual Construction Cost. Developer's
acceptance of such payment shall constitute a release of all claims for payment that Developer
may have against Agency unless such claims are specifically reserved in writing and transmitted
to Agency by Developer before Developer accepts such final payment.
, Section 6.6 Standards of Performance. Developer shall construct the Off-Site
Improvements according to the following standards:
(1) compliance with the approved construction plans and
specifications, and the terms and conditions of this Agreement;
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(2) performance in a good and workmanlike manner and in
compliance with all applicable laws, ordinances, rules, and regulations; and,
(3) use of materials that are of first class quality and workmanship.
Section 6.7 Performance and Payment Bond. Developer shall, prior to commencing
construction of the Off-Site Improvements, provide or require its general contractor to provide a
performance and payment bond which shall include Agency as obligee thereunder, in an amount
equal to the estimated total construction cost of the Off-Site Improvements. The bond shall
guarantee faithful performance of the construction contract and payment of all laborers,
mechanics, subcontractors, and materialmen and other suppliers.
ARTICLE VII - INSURANCE
Section 7.1 Insurance Requirements.
... During the term of this Agreement, Developer shall maintain insurance covering all
aspects of the Project activity, including but not limited to the following requirements:
A. Builders All Risk Comprehensive Coverage. Developer shall keep, or shall
require the construction contractor to keep, all Project components insured for Builders All Risk
Comprehensive Coverage including earthquake and flood and to include amounts sufficient to
prevent Agency or Developer from becoming a coinsurer under the terms of the applicable
policies but in any event in an amount not less than 100% of the then full "Replacement Cost,"
being the cost of replacing the Project components, and all fixtures, equipment, improvements
and betterments thereto; Provided, however, that such policy may include a commercially
reasonable "deductible" or self-insured retention amount.
B. Commercial General Liability. Developer shall carry, or shall require its
construction contractor to carry, Commercial General Liability insurance providing coverage
against claims for bodily injury, death or property damage on the Property with broad form
liability and property damage endorsement, naming Agency and Developer as additional
insureds, such insurance to afford minimum protection, during the term of the construction
phase, and written for combined single limits of liability of no less than One (1) Million Dollars
($1,000,000) per occurrence, Two (2) Million Dollars ($2,000,000) aggregate, with additional
"umbrella" coverage of not less than Ten (10) Million Dollars ($10,000,000), said amounts to be
adjusted from time to time with coverage deemed customary under like conditions. Agency shall
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Disposition and Development Agreement - Final - 6/29/99 19
not carry insurance concurrent in coverage and contributory in the event of loss with any
insurance required to be carried by Developer hereunder if the effect of such separate insurance
would be to reduce the protection of the payment to be made under Developer's construction
contractor's insurance. Coverage required under this Section 7.1 .B. may be provided under a
blanket policy or policies covering the Property along with other properties owned by Developer
or by Affiliates of Developer.
Section 7.2 Insurance Policies. Insurance policies required herein:
A. Shall be issued by companies authorized to do business in the State of California
with the following qualifications:
1. The companies must be rated no less than "A," as to general policy holders
rating and no less than "X" as to financial category in accordance with the latest edition
of Best's KeY Rating Guide, published by A.M. Best Company, Incorporated.
2. The Commercial General Liability policy or policies shall name Agency
as an additional insured.
3. The policies shall be issued as primary policies.
B. Each such policy or certificate of insurance mentioned and required in this Article
shall have attached thereto (1) an endorsement that such policy shall not be canceled or
materially changed without at least thirty (30) days prior written notice to Developer and
Agency; (2) an endorsement to the effect that the insurance as to any one insured shall not be
invalidated by any act or neglect of any other insured; (3) an endorsement pursuant to which the
insurance cartier waives all rights of subrogation against the parties hereto; and (4) an
endorsement pursuant to which this insurance is primary and noncontributory.
C. The certificates of insurance and insurance policies shall be furnished to
Developer and Agency prior to commencing any construction under this Agreement. The
certificate(s) shall clearly indicate the insurance and the type, amount and classification, as
required for compliance with this Section.
D. Cancellation of any insurance or non-payment by Developer of any premium for
any insurance policies required by this Agreement shall constitute an Event of Default of this
Agreement subject to the provisions of Section 8.1.A. In addition to any other legal remedies,
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Disposition and Development Agreement - Final - 6/29/99 20
Agency at its sole option after written notice and opportunity to cure as set forth in Section
8.1.A. as required for an Event of Default may pay such premiums for which, together with costs
and attorneys' fees directly related to Agency's payment of such premiums, Developer shall be
liable to Agency.
Section 7.3 Adjustments.
The types of policies, risks insured, coverage amounts, deductibles and endorsements may be
adjusted from time to time as Developer and Agency may mutually determine.
ARTICLE VIII - DEFAULT
Section 8.1 Developer's Default.
This Article shall apply if any one or more of the following events ("Event(s) of
Default") shall occur.
A. If default shall be made by Developer in keeping, observing or performing any of
its duties or obligations under this Agreement and such default shall continue for a period of
thirty (30) days after written notice thereof from Agency to Developer, or in the case of such
default or a contingency which cannot with due diligence and in good faith be cured within thirty
(30) days, Developer fails to proceed promptly after such notice and with due diligence and in
good faith, to begin to cure said default;
B. The making by Developer of an assignment for the benefit of creditors, or filing
by Developer of a petition in Bankruptcy or of reorganization under any bankruptcy or
insolvency law or filing by Developer of a petition to effect a composition or extension of time to
pay its debts;
C. The appointment of a receiver or trustee of the property of Developer which
appointment is not vacated or stayed within ninety (90) days after such appointment; or
D. The filing of a petition in bankruptcy against Developer or for its reorganization
under any bankruptcy or insolvency law which is not dismissed or stayed by the Court within
ninety (90) days after such filing.
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Section 8.2 Developer's Failure to Cure Default.
If an Event of Default on the part of Developer shall occur, then Agency at any
time after periods set forth for the exercise of rights herein shall have the following fights and
remedies in addition to other rights available to it under law or this Agreement:
A. Termination. Agency shall have the right to terminate this Agreement at any time
after expiration of the periods set forth in Section 8.1. In that event, Agency shall give written
notice to Developer and to any Mortgagee entitled to such notice, specifying such Event of
Default and stating that this Agreement shall expire and terminate on the date specified in such
notice, which shall be at least thirty (30) days after the giving of such notice, and upon the date
specified in such notice, this Agreement and all rights of Developer under this Agreement shall
expire and terminate.
If Agency terminates this Agreement on Developer's default, it shall have the right, at its
election, to reenter and take possession of the Property and all Improvements thereon and to
revest in Agency the estates of Developer therein. This right of reentry is independent of, and in
addition to, the rights of forfeiture, reentry and reverter of title reserved to Agency by Section 4.3
herein. Upon revesting of title in Agency pursuant to this Section 8.2, Agency shall diligently
proceed to use its best efforts to resell the Property consistent with its obligations under law. The
proceeds of such resale shall be applied as follows:
1. First, to reimburse Agency for any and all costs it incurs in managing or
selling the Property, including but not limited to expenditures to discharge or prevent liens or
encumbrances arising from any acts or omissions of Developer;
2. Second, to repay any outstanding debts owed by Developer to Agency;
3. Third, such funds to Developer as may be available to reimburse
Developer to the extent of the Purchase Price and any other amounts related to Developer's
acquisition of the portion of the Property reverting to Agency that Developer has paid to Agency,
the reasonable cost of any On-Site Improvements Developer has made to the portion of the
Property reverting to Agency, and a share of the reasonable cost of Off-Site Improvements borne
by Developer proportionate to the amount of the Property reverting to Agency; and,
4. Fourth, any remaining balance to Agency.
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Disposition and Development Agreement - Final - 6/29/99 22
B. Injunction. Agency shall have the right to seek to restrain, by injunction, the
commission of or attempted or threatened commission of an Event of Default and to obtain a
judgment or order specifically compelling performance of any such term or provision of this
Agreement without, in either case, being required to prove or establish that Agency does not
have an adequate remedy at law. Developer hereby waives the requirement of any such proof
and acknowledges that Agency would not have an adequate remedy at law for Developer's
commission of an Event of Default hereunder if such Event of Default was voluntary on the part
of Developer and could be prevented or remedied by injunctive relief or specific performance.
C. Damages. Agency shall be entitled to proceed against Developer for all direct
damages, costs and expenses arising from Developer's committing an Event of Default hereunder
and to recover all such direct damages, costs and expenses, including reasonable attorneys' fees.
Section 8.3 Agency's Default.
The following provisions shall apply if default shall be made by Agency in keeping,
observing or performing any of the duties, obligations and undertakings imposed upon and
assumed by Agency pursuant to the terms of this Agreement and such default shall continue for a
period of thirty (30) days after written notice thereof from Developer to Agency, which shall
constitute an "Event of Default" or, in the case of any such Event of Default or contingency
which cannot, with due diligence and in good faith, be cured within thirty (30) days, Agency fails
to proceed promptly after such notice and with due diligence and in good faith to begin to 'cure
said Event of Default.
Section 8.4 Agency's Failure to Cure Default.
A. If an Event of Default on the part of Agency shall occur, Developer at any time
after the periods set forth in Section 8.3, shall have the following rights and remedies, which are
cumulative:
1. Developer shall be entitled to proceed against Agency for all direct damages,
costs and expenses arising from Agency's committing an Event of Default hereunder and to
recover all such direct damages, costs and expenses, including reasonable attorneys' fees.
2. Developer shall have the right to restrain, by injunction, the commission of
or attempted or threatened commission of an Event of Default and to obtain a judgment or order
specifically compelling performance of any such term or provision of this Agreement without, in
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Disposition and Development Agreement - Final - 6/29/99 23
either case, being required to prove or establish that Developer does not have an adequate
remedy at law. Agency hereby waives the requirement of any such proof and acknowledges that
Developer would not have an adequate remedy at law for Agency's commission of an Event of
Default hereunder if such Event of Default was voluntary on the part of Agency and could be
prevented or remedied by injunctive relief or specific performance. PROVIDED,
notwithstanding the foregoing, Developer agrees that it will not seek to restrain by injunction or
to seek a judgment or order specifically compelling Agency's adoption of a Resolution of
Necessity or Agency's institution or prosecution of eminent domain proceedings pursuant to this
Agreement.
ARTICLE IX - ANTIDISCRIMINATION PROVISIONS
Section 9.1 Developer's Obligations. Developer shall not discriminate against or
segregate any person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the Property, nor shall Developer establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
Section 9.2 Binding Upon Successors. The foregoing antidiscrimination provisions
shall be binding upon and shall obligate Developer and its contractors, subcontractors,
successors, assigns, and transferees under this Agreement.
ARTICLE X - REPRESENTATIONS AND WARRANTIES
Section 10.1 Agency's Representations and Wan'antics. Agency hereby represents and
warrants to Developer that it has full statutory right, power and authority to enter into this
Agreement and perform in accordance with its terms and provisions; that the persons signing this
Agreement on behalf of Agency have the authority to bind Agency and to enter into this
transaction; and that Agency has taken all requisite action and steps to legally authorize the
execution, delivery, and performance of this Agreement.
Section 10.2 Developer's Representations and Warranties, Developer hereby represents
and warrants to Agency that it has full power and authority to enter into this Agreement and
perform in accordance with its terms and provisions; that the persons signing this Agreement on
behalf of Developer have the authority to bind Developer and to enter into this transaction; and
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Disposition and Development Agreement - Final - 6/29/99 24
that Developer has taken all requisite action and steps to legally authorize the execution,
delivery, and performance of this Agreement.
SECTION XI - MISCELLANEOUS
Section 11.1 Captions. The headings and captions of this Agreement are for
convenience and reference only and in no way define, limit or describe the scope or intent of this
Agreement nor in any way affect this Agreement.
Section 11.2 Construction. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity of the party or parties
may require. The parties hereby acknowledge and agree that each was properly represented by
counsel and this Agreement was negotiated and drafted at arms' length so that the judicial rule of
construction to the effect that a legal document shall be construed against the draftsman shall be
inapplicable to this Agreement.
... Section 11.3 Entire Agreement. This Agreement, and the documents or instruments
referred to herein, embodies the entire agreement and the' understanding of the parties in respect
of the subject matter contained herein. The parties have not relied upon any promises,
representations, warranties, agreements, covenants, or undertakings, other than those expressly
set forth or referred to herein. This Agreement, together with the documents and instruments
referred to herein, supersedes all prior agreements and sets forth the entire understanding
between the parties with respect to such subject matter. Previous drafts of this Agreement or any
portions thereof shall not be utilized in any manner by either party should any dispute arise as to
the intent of this Agreement. Any amendment or change in this Agreement shall not be valid
unless made in writing and signed by both parties.
Section 11.4 Successors and Assigns. The terms herein contained shall bind and inure
to the benefit of Agency, its successors and assigns, and Developer, its successors and assigns,
except as otherwise expressly provided herein.
o
Section 11.5 Notices. All notices which may be or are requested to be given pursuant to
this Agreement shall be deemed given when hand delivered, or when deposited in the United
States Mail, postage prepaid, and marked registered or certified mail, return receipt requested,
and addressed to the parties at the following addresses unless otherwise provided for herein:
Britannia Pointe Grand Limited Parmership
Disposition and Development Agreement - Final - 6/29/99 25
To Agency: Redevelopment Agency of the
City of South San Francisco
400 Grand Avenue
P.O. Box 711
South San Francisco, CA 94083
Attn: Michael A. Wilson
with a copy to: Meyers, Nave, Riback, Silver & Wilson
777 Davis Street, Suite 300
San Leandro, CA 94577
Attn: Deborah L. Rhoads
To Developer: Britannia Pointe Grand Limited Partnership
1939 Harrison Street, Suite 715
Oakland, CA 94612
Attn: T.J. Bristow
with a copy to: Slough Estates USA, Inc.
33 West Monroe Street, Suite 2000
Chicago, IL 60603-2409
Attn: William Rogalla
and a copy to: Folger Levin & Kahn, L.L.P.
275 Battery Street, 23ra Floor
San Francisco, CA 94111
Attn: Donald E. Kelley, Jr.
Section 11.6 Incorporation by Reference. All exhibits and appendices annexed hereto
are incorporated by reference.
- Section 11.7 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same Agreement. This Agreement becomes effective the date it is
executed by the last of Agency or Developer.
Britannia Pointe Grand Limited Partnership
Disposition and Development Agreement - Final - 6/29/99 26
Section 11.8 Waiver; Cumulative Remedies. The waiver by one party of the
performance of any covenant, condition, or promise shall not invalidate this Agreement nor shall
it be considered a waiver by such party of any other covenant, condition, or promise hereunder.
The waiver by either or both parties of the time for performing any act shall not constitute a
waiver of the time for performing any other act or an identical act required to be performed at a
later time. The exercise of any remedy provided by law or the provisions of this Agreement shall
not exclude other consistent remedies unless they are expressly excluded.
Section 11.9 Exculpation. Notwithstanding anything contained to the contrary in any
provision of this Agreement, it is specifically agreed and understood that there shall be
absolutely no personal liability on the part of any individual officers or directors of Agency or
Developer with respect to any of the obligations, terms, covenants, and conditions of this
Agreement, and each party shall look solely to the other party or any such assignee or successor-
in-interest for the satisfaction of each and every remedy available to a party in the event of any
breach by the other party or by any such assignee or successor-in-interest of any of the
obligations, terms, covenants, and conditions of this Agreement to be performed by a party, such
exculpation of personal liability to be absolute and without any exception whatsoever.
Section 11.10 Developer Shall Indemnify. During the term of this Agreement, to the
maximum extent permitted by law, Developer agrees to and shall indemnify and hold Agency
harmless from and against all liability, loss, damage, cost, or expenses (including reasonable
attorneys' fees and court costs, amounts paid in settlements and judgment) arising from or as a
result of Developcr's or its contractors', servants', agents', or employees' acts, errors or
omissions on or about the Property, or occupancy or use of the Property, or breach of any
obligations of Developer under or with respect to this Agreement, and any claims for relocation
related to the Property. Developer shall not be responsible for (and such indemnity shall not
apply to) the acts, errors or omissions of Agency, or its respective officials, servants, employees
or officers.
Section 11.11 Severability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the
remainder of this Agreement and the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby and shall continue in full force and effect.
Section 11.12 Time of Essence. Time is of the essence of this Agreement.
Britannia Pointe Grand Limited Partnership
Disposition and Development Agreement - Final - 6/29/99 27
Section 11.13 Survival of Agreements. The representations, warranties, covenants,
indemnities and agreements of the parties provided in this Agreement and the parties' obligations
hereunder shall survive the execution and delivery of the deeds provided for herein and the
termination or expiration of this Agreement.
Section 11.14 Governing Law. All documents executed pursuant to the transactions
contemplated herein, including, without limitation, this Agreement shall be deemed to be
agreements made under, and for all purposes shall be construed in accordance with, the internal
laws and judicial decisions of the State of California.
Section 11.15 Forum Designation. Any action or proceeding against any of the parties
hereto relating in any way to this Agreement or the subject matter hereof shall be brought and
enforced exclusively in the Superior Court of the County of San Mateo, State of California, and
the parties hereto consent to the exclusive jurisdiction of such court in respect of such action or
proceeding.
Section 11.16 Consent. In any instance in which any party to this Agreement shall be
requested to consent to or approve of any matter with respect to which such party's consent or
approval is required by any of the provisions of this Agreement, such consent or approval shall
be given in writing, and shall not be unreasonably withheld, unless the provisions of this
Agreement with respect to a particular consent or approval shall expressly provide that the same
may be given or refused in the sole and absolute judgment of such party.
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Britannia Pointe Grand Limited Partnership
Disposition and Development Agreement - Final - 6/29/99 28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
REDEVELOPMENT AGENCY OF THE
CITY OF SOUTH SAN FRANCISCO
By:
Michael A. Wilson, Executive Director
APPROVED AS TO FORM:
By:
Agency Counsel
ATTEST:
By:
Agency Secretary
BRITANNIA POINTE GRAND
LIMITED PARTNERSHIP
By: BRITANNIA POINTE GRAND, LLC
General Partner ~
By: '
T.J. Bristow, Manager
Britannia Pointe Grand Limited Pa~mership
Disposition and Development Agreement - Final - 6/29/99 29
EXHIBIT A - APPROVED SITE PLAN
Britannia Pointe Grand Limited Partnership
Disposition and Development Agreement- Final - 6/29/99 30
EXHIBIT B - LEGAL DESCRIPTIONS OF RESALE PARCELS
169 Harbor Way:
Beginning at a point on the Easterly line of that certain 50 foot wide roadway described in the
Deed from Ed Reybum Guerin and Grace F. Guerin, his wife, to Ed Rosemont, dated April 16,
1948 and Recorded April 21, 1948 in Book 1454 of Official Records of San Mateo County at
Page 293 (27142-H), said point of beginning being distant thereon North 00° 06' 30" East 294.00
feet from the Southerly boundary of that certain 15.743 acre tract of land described in the Deed
from Metal and Thermit Corporation, a corporation, to Grace F. Guerin, dated June 17, 1947 and
Recorded July 24, 1947 in Book 1352 of Official Records of San Mateo County at Page 373
(77876-G); thence from said point of beginning North 89° 52' 30" East 380.00 feet, more or less,
to a point on the Easterly line of said 15.743 acre tract above referred to; thence South 33° 21'
30" West, along the Easterly line of said 15.743 acre tract, 110.00 feet, more less, to the
Northerly line of the lands described in the Deed from Grace F. Guerin, to Pacific Coast
Builders, a co-partnership, dated October 26, 1954 and Recorded October 27, 1954 in Book 2677
of Official Records of San Mateo County at Page 73 (97326-L); thence along the last mentioned
line Westerly 310.0 feet, more or less, to the Easterly line of that 50 foot wide roadway above
mentioned; thence along the last mentioned line, North 00° 06' 30" East 91.00 feet to the point of
beginning.
A.P. No.: 015-042-070 JPN 015 004 042 07 A
185 Harbor Way:
Beginning at a point on the Easterly line of that certain 50 foot wide roadway described in the
Deed from Ed Reybum Guerin and Grace F. Guerin, his wife, to Ed Rosemont, dated April 16,
1948 and Recorded April 21, 1948 in Book 1454 of Official Records of San Mateo County at
Page 293 (27142-H), said point of beginning being distant thereon North 00° 06' 30" East 203
feet from the Southerly boundary of that certain 15.743 acre tract of land described in the Deed
from Metal and Thermit Corporation, a corporation, to Grace F. Guerin, dated June 17, 1947 and
Recorded July 24, 1947 in Book 1352 of Official Records of San Mateo County at Page 373
(77876-G); thence from said point of beginning, South 00° 06' 30" West 203 feet to the aforesaid
Britannia Pointe Grand Limited Parmership
Disposition and Development Agreement - Final - 6/29/99 31
Southerly boundary line of the 15.743 acre tract of land; thence along said Southerly boundary
line North 89° 55' 28" East 87.12 feet to the Southeasterly comer of said 15.743 acre tract;
thence Northeasterly along the Southeasterly line of said 15.743 acre tract; North 52° 10' 30"
East 258.68 feet and North 33° 21' 30" East 52 feet; thence leaving the Southeasterly line of said
15.743 acre tract, Westerly in a direct line 310 feet, more or less, to the point of beginning.
A.P. No.: 015-042-050 JPN 015 004 042 05 A
Britannia Pointe Grand Limited Partnership
Disposition and Development Agreement - Final - 6/29/99 32