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HomeMy WebLinkAboutReso RDA 16-2000 RESOLUTION NO. 16-2000 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO STATE OF CALIFORNIA A RESOLUTION APPROVING THE SALE OF PROPERTY AND TRANSFER OF INTERESTS PURSUANT TO THAT CERTAIN OWNER PARTICIPATION AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF SOUTH SAN FRANCISCO AND BAY WEST COVE, L.L.C. AND APPROVING AN AMENDMENT TO THAT OWNER PARTICIPATION AGREEMENT TO ALLOW FOR ADDITIONAL TIME FOR CONSTRUCTION OF IMPROVEMENTS WHEREAS, the Redevelopment Agency of the City of South San Francisco, California ("Agency") and Bay West Cove, L.L.C. ("Bay West") entered into that certain Owner Participation Agreement ("Agreement") dated January 7, 1998. By its Resolution No. 19-97, the Agency approved the Agreement. WHEREAS, Section 6.1.2 of the Agreement provides that if prior to the completion of the proposed project, the Participant sells, transfers, conveys, subleases or assigns its interest in the property or any of its rights in the Agreement to or in favor of any person or entity, the Agency may review and approve the financial status and qualifications of the potential person or entity to which the property is being sold, transferred, assigned, subleased or conveyed. WHEREAS, Section 8.03 of the Agreement provides that any transfer of a parcel prior to recordation of the certificate of completion for that parcel is subject to all of the conditions of approval, covenants and restrictions of the Agreement. WHEREAS, on April 4, 2000, Slough Estates USA Inc. ("Slough USA") acquired Parcel Nos. 2, 3, 5 and 6 (identified in the Agreement) from Bay West. WHEREAS, on May 15, 2000, Slough BTC, LLC ("Slough BTC") acquired Parcel Nos. 2, 3, 5 and 6 from Slough USA. WHEREAS, in connection with Bay West's conveyance of Parcel Nos. 2, 3, 5 and 6 to Slough USA, and in connection with Slough USA's subsequent conveyance of Parcel Nos. 2, 3, 5 and 6 to Slough BTC, Bay West, Slough USA and Slough BTC entered into that certain Assignment and Assumption Agreement, attached hereto as Exhibit A, in which Bay West assigned, transferred and conveyed all of its rights, titles, interests and obligations under the Agreement to Slough USA and Slough USA assumed and agreed to keep, perform and fulfill all of Bay West's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6, and in which, in turn, Slough USA assigned, transferred and conveyed all of its rights, titles, interest and obligations under the Agreement to Slough BTC and Slough BTC assumed and agreed to keep, perform and fulfill all of Slough USA' s covenants, -- debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. WHEREAS, the Agency and Bay West and Slough USA desire for the Agency to approve of the sale of Parcel Nos. 2, 3, 5 and 6 from Bay West to Slough USA, and the Agency and Slough USA and Slough BTC desire for the Agency to approve of the subsequent sale of Parcel Nos. 2, 3, 5 and 6 from Slough USA to Slough BTC. Further, the Agency and Bay West and Slough USA desire for the Agency to consent to Bay West's assignment to Slough USA of all of its rights, titles, interests, and obligations under the Agreement and Slough USA's assumption of all of Bay West's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6, and the Agency and Slough USA and Slough BTC desire for the Agency to consent to Slough USA's subsequent assignment to Slough BTC of all of its rights, titles, interests, and obligations under the Agreement and Slough BTC's assumption of all of Slough USA's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. Specifically, the parties desire that Agency execute that certain Assignment and Assumption Agreement by and among Bay West, Slough USA and Slough BTC, attached hereto as Exhibit A. WHEREAS, certain provisions of the Agreement require that the Participant complete the construction of all improvements within two and one half (2.5) years from the date of the Agreement or, in the event of a hotel improvement, that construction be completed within three and one-half (3.5) years from the date of the Agreement, and that if construction is not completed within the applicable time periods, Participant must pay Agency certain penalty amounts. WHEREAS, the Agency and Slough BTC, the Participant under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6, now desire to amend the Agreement with respect to Parcel Nos. 2, 3, 5 and 6 to allow for additional time for construction and to extend the time for the payment of penalties by providing that the construction of all types of improvements must be completed within four and one half (4.5) years from the date of the Agreement and that penalties will be paid by the Participant if construction is not completed within this time period. Specifically, the Agency and Slough BTC desire to enter into that certain Amendment No. 1 To Owner Participation Agreement Dated January 7, 1998 By And Between The Redevelopment Agency Of The City Of South San Francisco, California And Bay West Cove, L.L.C., attached hereto as Exhibit B. NOW, THEREFORE, BE IT RESOLVED THAT the Redevelopment Agency of the City of South San Francisco does hereby approve of the sale of Parcel Nos. 2, 3, 5 and 6 from Bay West to Slough USA, and hereby further approves of the subsequent sale of Parcel Nos. 2, 3, 5 and 6 from Slough USA to Slough BTC, and consents to Bay West's assignment to Slough USA of all of Bay West's rights, titles, interest, and obligations under the Agreement and Slough USA's assumption of all of Bay West's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6, and hereby further consents to Slough USA's subsequent assignment to Slough BTC of all of Slough USA's rights, titles, interests, and obligations under the Agreement and Slough BTC's assumption of all of Slough USA's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6, and the Agency's Executive Director is hereby authorized to execute that Assignment and Assumption Agreement by and among Bay West, Slough USA and Slough BTC, attached hereto as Exhibit A. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT Amendment No. 1 To Owner Participation Agreement Dated January 7, 1998 By And Between The Redevelopment Agency Of The City Of South San Francisco, California And Bay West Cove, L.L.C., attached hereto as Exhibit B, between the Agency and Slough BTC, is hereby approved, and the Agency's Executive Director is hereby authorized to execute the Amendment No. 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 Regular meeting held on the 28th day of June, 2000, by the following vote: AYES: Boardmembers Pedro Gonzalez, Eugene R. Mullin and John R. Penna, Vice- Chair Joseph A. Fernekes and Chair Karyl Matsumoto NOES: None. ABSTAIN: None. ABSENT: None. g Clerk F:\WPD'uMnrsw\405\00 ILRedevelopment\OPAAMENDRES.2slough.doc AMENDMENT NO. 1 TO OWNER PARTICIPATION AGREEMENT DATED JANUARY 7, 1998 BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA AND BAY WEST COVE, L.L.C. This is Amendment No. 1 ("Amendment") to that certain Owner Participation Agreement dated January 7, 1998 ("Agreement") by and between the Redevelopment Agency of the City of South San Francisco, California, a public body, corporate and politic ("Agency") and Bay West Cove, L.L.C. ("Bay West"). This Amendment is dated for convenience this __ day of June, 2000, and is entered into by and between the Agency and Slough BTC, LLC ("Slough BTC"). Recitals A. The Agency and Bay West entered into the Agreement dated January 7, 1998. By its Resolution No. 19-97, the Agency approved the Agreement. A. On April 4, 2000, Slough Estates USA Inc. ("Slough USA") acquired Parcel Nos. 2, 3, 5 and 6 (identified in the Agreement) from Bay West. On May 15, 2000, Slough BTC acquired Parcel Nos. 2, 3, 5 and 6 from Slough USA. A. On June 28, 2000, Bay West, Slough USA, and Slough BTC entered into that certain ..... Assignment and Assumption Agreement in which Bay West assigned all of its rights, titles, interests and obligations under the Agreement to Slough USA and Slough USA assumed and agreed to keep, perform and fulfill all of Bay West's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. In that same Assignment and Assumption Agreement, in turn, Slough USA assigned all of its rights, titles, interests and obligations under the Agreement to Slough BTC and Slough BTC assumed and agreed to keep, perform and fulfill all of Slough USA's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. Slough BTC is now the Participant under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. A. Section 8.03 of the Agreement provides that any transfer of a parcel prior to recordation of the Certificate of Completion (erroneously referred to therein as "Certificate of Compliance") for that parcel shall be subject to all of the conditions of approval, covenants and restrictions of the Agreement. A. Certain provisions of the Agreement require that the Participant complete the construction of all improvements within two and one half (2.5) years from the date of the Agreement or, in the event of a hotel improvement, that construction be completed within three and one-half (3.5) years from the date of the Agreement, and that if construction is not 6ompleted within the applicable time periods, Participant must pay Agency certain penalty amounts. A_.:. The Agency and the Participant, the parties hereto, now desire to amend the Agreement I I I with respect to Parcels Nos. 2, 3, 5 and 6 to allow for additional time for construction and to extend the time for the payment of penalties by providing that the construction of all types of improvements must be completed within four and one half (4.5) years from the date of the Agreement and that penalties will be paid by the Participant if construction is not completed within this time period. Terllis 1. Upon the execution of this Amendment by the parties listed below and the approval of this Amendment by the Agency's Board, the parties agree that Section 2.03, Section 2.08, and Exhibit G of the Agreement shall be amended and superseded as follows insofar as such provisions relate to or concern Parcel Nos. 2, 3, 5 and 6. 1. The last sentence of Section 2.03 of the Agreement, entitled "Scope of Development," is replaced in its entirety with and superseded by the following provision: Participant or its successors shall complete all Improvements, including On-site Improvements, within four and one half (4.5) years from the date of this Agreement. 1. Section 2.08 of the Agreement, entitled "Penalty for Failure to Complete Construction of Improvements," is replaced in its entirety with and superseded by the following provision: If Participant or its successors fails to complete the construction of any of the Improvements on the Property within four and one half (4.5) years from the effective date of this Agreement, then Participant shall, immediately and without need for submission of a demand from Agency, be obligated to pay Agency two million five hundred thousand dollars ($2,500,000). Said amount shall be reduced by the amount allocated to each of the seven development parcels upon completion of construction of each of the parcels. The penalty amount for each phase is as follows: Parcel 1 $960,750; Parcel 2 $224,750; Parcel 3 $220,000; Parcel 4 $203,125; Parcel 5 $500,550; Parcel 6 $187,700; and Parcel 8 $203,125. The parcels discussed herein are as shown on the Tentative Submission Map included herewith as Exhibit F. 1. Exhibit G to the Agreement, entitled "Development Schedule," is replaced in its entirety with and superseded by the following provision: Construction shall be completed on all parcels to be developed within four and one half (4.5) years from the effective date of the OPA. Effective Date of OPA January 7, 1998 Construction to be completed by: July 7, 2002 1. Except as set forth herein, all other provisions of Agreement shall continue to apply. Agreed to this day of June, 2000. IN WITNESS WHEREOF, each of the parties listed below has executed this Amendment, or has caused this Amendment to be executed on its behalf by a representative duly authorized, as of the above date. REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA (Agency) By: Its: Executive Director APPROVED AS TO FORM: By: Agency Counsel ATTEST: By: Agency Clerk/Secretary SLOUGH BTC, LLC (Participant, Parcel Nos. 2, 3, 5, 6) By: Slough Estates USA Inc. Its: Manager By: Its: Vice President J:\WPDhMnrsw~405~}01 hRede velopmentXame nd2slougl~ wpd Recording Requested By And After Recording Please Return To: City of South San Francisco Economic and Community Development Department 400 Grand Avenue, P.O. Box 711 South San Francisco, CA 94080 Attn: Executive Director (Area Above This Line Reserved For Recorder's Use) ASSIGNMENT AND ASSUMPTION AGREEMENT BY AND AMONG BAY WEST COVE, L.L.C., SLOUGH ESTATES USA INC., AND SLOUGH BTC, LLC THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") dated as of June 28, 2000, is entered into by and among BAY WEST COVE, L.L.C. ("Bay West"), SLOUGH ESTATES USA INC. ("Slough USA"), and SLOUGH BTC, !.!.C ("Slough BTC'). The parties agree as follows: This Assignment Agreement is entered into with reference to the following facts: A. The Redevelopment Agency of the City of South San Francisco, California ("Agency") and Bay West entered into that certain Owner Participation Agreement ("Agreement") dated January 7, 1998. By its Resolution No. 19-97, the Agency approved the Agreement. B. Section 6.1.2 of the Agreement provides that if prior to the completion of the proposed project, the Participant sells, transfers, conveys, subleases or assigns its interest in the property or any of its rights in the Agreement to or in favor of any person or entity, the Agency may review and approve the financial status and qualifications of the potential person or entity to which the property is being sold, transferred, assigned, subleased or conveyed. C. Section 8.03 of the Agreement provides that any transfer of a parcel prior to recordation of the Certificate of Completion (erroneously referred to therein as "Certificate of Compliance") for that parcel is subject to all of the conditions of approval, covenants and restrictions of the Agreement. D. On April 4, 2000, Slough USA acquired Parcel Nos. 2, 3, 5 and 6 (identified in the Agreement) from Bay West. On May 15, 2000, Slough BTC acquired Parcel Nos. 2, 3, 5 and 6 from Slough USA. E. In connection with Bay West's conveyance of Parcel Nos. 2, 3, 5 and 6 to Slough USA, Bay West now desires to assign to Slough USA and Slough USA desires to assume from Bay West, all of Bay West's rights, rifles, interests and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. F. In turn, in connection with Slough USA's conveyance of Parcel Nos. 2, 3, 5 and 6 to Slough BTC, Slough USA now desires to assign to Slough BTC and Slough BTC desires to assume from Slough USA, all of Slough USA's rights, rifles, interests and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. G. The parries are entering into this Assignment Agreement with the intention and understanding that Slough BTC will become the Participant under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. The parties are also entering into this Assignment Agreement for the purposes of providing a document for recordation and notice of the assignments and assumptions contained herein and enabling the Agency to consent to the sales of Parcel Nos. 2, 3, 5 and 6 as referenced herein and the assignments and assumptions made by and between the parties hereto. NOW, THEREFORE, the parties hereto agree as follows: 1. Bay West hereby assigns, transfers and conveys to Slough USA all of its rights, floes, interests and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. 2. Slough USA hereby assumes and agrees to keep, perform and fulfill all of Bay West's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3,5 and 6. 3. In turn, Slough USA hereby assigns, transfers and conveys to Slough BTC all of its rights, rifles, interests and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. 4. Slough BTC hereby assumes and agrees to keep, perform and fulfill all of Slough USA's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3,5 and 6. 5. For all purposes, including without limitation enforcement by the Agency of its rights and remedies under the Agreement, the foregoing assignments and assumptions are full, final and unconditional and Slough BTC shall keep, perform and fulfill all the covenants, debts, duties, liabilities and obligations as the Participant under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6. As between Bay West on the one hand and Slough USA and Slough BTC on the other hand only, nothing in this Agreement is intended or shall be construed to modify or limit the prior written agreement between Bay West and Slough USA with respect to the allocation of responsibility for the performance and discharge of certain obligations under the Agreement. IN WITNESS WHEREOF, the parties listed below have executed this Assignment Agreement as of the date set forth above. BAY WEST COVE, L.L.C. (Assignor) By: Its: SLOUGH ESTATES USA INC. (Assignee/Assignor) By: Its: Vice President SLOUGH BTC, I,I,C (Assignee) By: Slough Estates USA Inc. Its: Manager By: Its: Vice President As of the date below, the undersigned, the Redevelopment Agency of the City of South San Francisco, California, hereby consents to Bay West's assignment to Slough USA of all of Bay West's fights, rifles, interests, and obligations under the Agreement and Slough USA's assumption of all of Bay West's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6, and further consents to Slough USA's subsequent assignment to Slough BTC of all of Slough USA's rights, titles, interests, and obligations under the Agreement and Slough BTC's assumption of all of Slough USA's covenants, debts, duties, liabilities and obligations under the Agreement with respect to Parcel Nos. 2, 3, 5 and 6, and hereby approves of the sale of Parcel Nos. 2, 3, 5 and 6 from Bay West to Slough USA and further approves of the subsequent sale of Parcel Nos. 2, 3, 5 and 6 from Slough USA to Slough BTC. DATED: CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY (Agency) By its: Executive Director ATTEST: Clerk APPROVED AS TO FORM: Agency Counsel J:\V~'PD~I m'sw\405\001 LRedevelopment~s sign3.d oc ! I i Ir