HomeMy WebLinkAboutOrd. 1471-2013ORDINANCE NO. 1471 -2013
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
AN ORDINANCE ADOPTING A FIRST AMENDED AND
RESTATED DEVELOPMENT AGREEMENT FOR THE
REDEVELOPMENT OF A 22.6 ACRE SITE FOR THE
GATEWAY BUSINESS PARK IN THE GATEWAY SPECIFIC
PLAN ZONE DISTRICT
WHEREAS, Gateway of Pacific LP (Biomed Realty), a Delaware limited partnership
( "Owner" or "Applicant ") submitted an application requesting approval of a Master Plan
Modification, a new Phase 1 Precise Plan, and approval of a revised Transportation Demand
Management ( "TDM ") Plan, which would collectively authorize the phased removal and
replacement of existing buildings on the 22.6 -acre project site and construction of five to six new
buildings and two to four parking structures, in multiple phases from 2013 to 2025, to be located
at the corner of Gateway and Oyster Point Boulevards (700, 750, 800, 850, 900, and 1000
Gateway Boulevard), in the Gateway Specific Plan Area ( "Gateway Business Park Master Plan
Project" or "Project "); and,
WHEREAS, as part of its application, the Applicant has sought approval of a First
Amended and Restated Development Agreement, which would clarify and obligate several
project features and mitigation measures, including payment of existing fees (such as the Oyster
Point Interchange Fee, East of 101 Traffic Impact Fee, Stormwater Fee, Sewer Impact Fee,
Childcare Impact Fee, and Public Safety Impact Fee), payment of certain fees the City has
traditionally included in its development agreements (such as a Payment of a Transit Station
Enhancement Fee), and certain future fees (including a Park -in -Lieu Fee); and
WHEREAS, approval of the Applicant's proposal is considered a "project" for purposes
of the California Environmental Quality Act, Pub. Resources Code, §§ 21000, et seq. ( "CEQA ");
and,
WHEREAS, the City Council certified an Environmental Impact Report ( "EIR ") on
February 10, 2010 in accordance with the provisions of CEQA and the CEQA Guidelines, which
analyzed the potential environmental impacts of the Project; and,
WHEREAS, by separate resolution, the City Council acknowledged that there have been
no substantive changes to the Project that would result in any additional environmental impacts
not already addressed in the EIR, and therefore, no further environmental review is required;
and,
WHEREAS, the Planning Commission held a duly noticed public hearing on April 18,
2013, to solicit public comment and consider the proposed entitlements and take public
testimony, at the conclusion of which the Planning Commission conditionally approved the
entitlements and recommended that the City Council approve the First Amended and Restated
Development Agreement; and,
WHEREAS, the City Council reviewed the Planning Commission's conditional approval
of the Project, and considered the applicant's appeal, and by separate resolution, made findings
and approved the Master Plan Modification, a new Phase 1 Precise Plan, and approval of a
revised TDM plan for the Project; and,
WHEREAS, the City Council held a duly noticed public hearing on May 8, 2013, to
consider the appeal on the Development Agreement, the appeal of the Planning Commission's
conditional approval of the Project, and take public testimony.
NOW, THEREFORE, the City Council of the City of South San Francisco does hereby
ordain as follows:
SECTION 1. Findings.
That based on the entirety of the record before it, which includes without limitation, the
California Environmental Quality Act, Public Resources Code § 21000, et seq. ( "CEQA ") and
the CEQA Guidelines, 14 California Code of Regulations § 15000, et seq.; the South San
Francisco General Plan and General Plan EIR; the South San Francisco Municipal Code; the
Project applications; the Gateway Business Park Master Plan and Phase 1 Precise Plan, as
prepared by FLAD Architects, Kenkay Associates, BKF Engineers, Surveyors, Planners; the
EIR, including the Draft and Final EIR prepared and certified for the Gateway Business Park
Master Plan and appendices thereto; all site plans, and all reports, minutes; all reports, minutes,
and public testimony submitted as part of the Planning Commission's meeting held on April 18,
2013; all reports, minutes, and public testimony submitted as part of the City Council's duly
noticed public hearing on May 8, 2013; and any other evidence (within the meaning of Public
Resources Code § 21080(e) and § 21082.2), the City Council of the City of South San Francisco
hereby finds as follows:
A. The foregoing Recitals are true and correct and made a part of this Ordinance.
B. The proposed First Amended and Restated Development Agreement (attached as
Exhibit A), is incorporated by reference and made a part of this Ordinance, as if set forth fully
herein.
C. The documents and other material constituting the record for these proceedings
are located at the Planning Division for the City of South San Francisco, 315 Maple Avenue,
South San Francisco, CA 94080, and in the custody of Chief Planner, Susy Kalkin.
D. The proposed Project, the Master Plan Modification, a new Phase 1 Precise Plan,
and approval of a revised TDM plan, are consistent and compatible with all elements in the City
of South San Francisco General Plan. The General Plan includes policies and programs that are
designed to encourage the development of research and development and office uses in the East
of 101 Area. Further, the land uses, development standards, densities and intensities, buildings
and structures proposed are compatible with the goals, policies, and land use designations
established in the General Plan (see Gov't Code, § 65860), and none of the land uses,
development standards, densities and intensities, buildings and structures will operate to conflict
with or impede achievement of the any of the goals, policies, or land use designations established
in the General Plan.
Specifically, the General Plan includes policies and programs that are designed to
encourage the development of high technology campuses in the East of 101 Area, allow for
employee - serving vendor services, preparation of a TDM plan and traffic improvement plan to
reduce congestion impacts, and provision of a framework for requiring future circulation system
improvements as they are needed to prevent deficient levels of service from being reached.
E. The City Council has independently reviewed the proposed First Amended and
Restated Development Agreement, the General Plan, the South San Francisco Municipal Code,
and applicable state and federal law, including Government Code section 65864, et seq., and has
determined that the proposed Development Agreement complies with all applicable zoning,
subdivision, and building regulations and with the General Plan. This finding is based upon all
evidence in the Record as a whole, including, but not limited to: the City Council's independent
review of these documents, oral and written evidence submitted at the public hearings on the
Project, including advice and recommendations from City staff.
F. The proposed Development Agreement for the Project states its specific duration.
This finding is based upon all evidence in the Record as a whole, including, but not limited to:
the City Council's independent review of the proposed First Amended and Restated
Development Agreement and its determination that Section 2 of the First Amended and Restated
Development Agreement states that the Development Agreement shall expire twelve (12) years
from the effective date of this Ordinance.
G. The proposed Development Agreement incorporates the permitted uses, density
and intensity of use for the property subject thereto, as reflected in the proposed Project (P08-
0034), Master Plan Modification (MPM13- 0001), Phase 1 Precise Plan (PP13- 0001),
Transportation Demand Management Plan (TDM13 -0003) and First Amended and Restated
Development Agreement (DAA13- 0001). This finding is based upon all evidence in the Record
as a whole, including, but not limited to, the City Council's independent review of the proposed
First Amended and Restated Development Agreement and its determination that Section 3 of the
Development Agreement sets forth the Project Approvals, development standards, and the
documents constituting the Project.
H. The proposed Development Agreement states the maximum permitted height and
size of proposed buildings on the property subject thereto. This finding is based upon all
evidence in the Record as a whole, including, but not limited to, the City Council's independent
review of the proposed Development Agreement and its determination that Section 3 of the
Agreement sets forth the documents which state the maximum permitted height and size of
buildings.
I. The proposed Development Agreement states specific provisions for reservation
or dedication of land for public purposes. This finding is based on all evidence in the Record as a
whole, including, but not limited to the City Council's independent review of the Development
Agreement.
SECTION 2. Approval of Development Agreement.
A. The City Council of the City of South San Francisco hereby approves the
proposed First Amended and Restated Development Agreement with Gateway of Pacific LP, a
Delaware limited partnership, attached hereto as Exhibit A and incorporated herein by reference.
B. The City Council further authorizes the City Manager to execute the First
Amended and Restated Development Agreement, on behalf of the City, in substantially the form
attached as Exhibit A, and to make revisions to such Agreement, subject to the approval of the
City Attorney, which do not materially or substantially increase the City's obligations
thereunder.
SECTION 3. Severability.
If any provision of this Ordinance or the application thereof to any person or
circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the
application of such part or provision to other persons or circumstances shall not be affected
thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are
severable. The City Council of the City of South San Francisco hereby declares that it would
have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof
irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs,
sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
SECTION 4. Publication and Effective Date.
Pursuant to the provisions of Government Code Section 36933, a summary of this
Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council
meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the
Summary, and (2) post in the City Clerk's Office a certified copy of this Ordinance. Within
fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the
summary, and (2) post in the City Clerk's Office a certified copy of the full text of this
Ordinance along with the names of those City Council members voting for and against this
Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and
after its adoption.
Introduced at a regular meeting of the City Council of the City of South San Francisco,
held the St` day of May, 2013.
AYES: Councilmember Mark N. Addiego, Richard A. Garbarino, and Pradeep Gupta
Mayor Pro Tem Karyl Matsumoto and Mayor Pedro Gonzalez.
NOES: None.
ABSTAIN: None.
ABSENT: None.
Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the
City Council held the 22nd day of May, 2013, by the following vote:
AYES. Councilmember Mark N. Addie o Richard A. Garbarino and Pradeep Gupta
Mayor Pro Tem Karyi Matsumoto.
NOES:
ABSTAIN:
ABSENT: Mayor Pedro Gonzalez.
a
As Mayor of the City of South San Francisco, I do hereby approve the foregoing
Ordinance this 22nd day of May, 2013.
f
Pedro Gonzalez, ayo
Recording Requested By:
CITY OF SOUTH SAN FRANCISCO
When Recorded Mail To:
CITY OF SOUTH SAN FRANCISCO
400 Grand Avenue
South San Francisco, CA 94083
Attn: City Clerk
Mail Tax Statements To:
Gateway of Pacific LP (Biomed Realty)
17190 Bernardo Center Drive
San Diego, CA 92128
(Space above this line for Recorder's use)
This instrument is exempt from recording fees pursuant to Government Code Sec. 27383.
Documentary Transfer Tax is $ 0.00 (exempt per Rev. & Taxation Code Sec. 11922, Transfer to
Municipality).
DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF SOUTH SAN FRANCISCO
AND
GATEWAY OF PACIFIC LP (BIOMED REALTY)
FOR
GATEWAY BUSINESS PARK PROJECT
(700, 750, 800, 850, 900, AND 1000 GATEWAY BOUELVARD)
Exhibit A
First Amended and Restated Development Agreement
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT
Gateway Business Park Master Plan Project
This FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE
GATEWAY BUSINESS PARK MASTER PLAN PROJECT is dated , 2013
( "Agreement "), between GATEWAY OF PACIFIC LP, a Delaware limited partnership
( "Owner "), and the CITY OF SOUTH SAN FRANCISCO, a municipal corporation organized
and existing under the laws of the State of California ( "City "), on the other hand. Owner and the
City are collectively referred to herein as "Parties."
RECITALS
A. WHEREAS, California Government Code ( "Government Code ") Sections 65864 through
65869.5 authorize the City to enter into binding development agreements with persons
having legal or equitable interests in real property for the development of such property
or on behalf of those persons having same; and
B. WHEREAS, pursuant to Government Code Section 65865, the City has adopted rules and
regulations, embodied in Chapter 19.60 of the South San Francisco Municipal Code
( "Municipal Code" or "SSFMC "), establishing procedures and requirements for adoption
and execution of development agreements; and
C. WHEREAS, this Agreement concerns property consisting of a 22.6 -acre site located at
the corner of Gateway and Oyster Point Boulevards (700, 750, 800, 850, 900, and 1000
Gateway Boulevard), in the East of 101 Area Plan, the Gateway Redevelopment Project
Area and the Gateway Specific Plan District, as shown and more particularly described in
Exhibit A, attached (the "Property "); and
D. WHEREAS, on February 24, 2010, the City Council adopted Ordinance Number 1423-
2010, which approved and adopted that certain Development Agreement for the Gateway
Business Park Master Plan Project ("Original greement ") between the City and
Chamberlin Properties I Limited Partnership, a California limited partnership, the
previous owner of the Property; and
E. WHEREAS, the Original Agreement became effective on or about March 26, 2010
( "Original Effective Date "); and
F. WHEREAS, Owner now has a legal or equitable interest in the Property subject to this
Agreement; and
G. WHEREAS, Owner has submitted a development proposal to the City that would permit
the development of the Property as depicted in (i) the Gateway Business Park Master
Plan, dated February, 2013, prepared by Ken Kay Associates, and (ii) the Phase 1 Precise
Plan, dated February, 2013, prepared by FLAD Architects, Ken Kay Associates and BKF
Engineers Surveyors Planners, attached hereto as Exhibit B and Exhibit C, respectively;
and
H. WHEREAS, Owner has requested that the City enter into this Agreement to amend and
restate the rights and obligations of the Parties relating to the development of the
Property; and,
WHEREAS, all proceedings necessary for the valid adoption and execution of this
Agreement have taken place in accordance with Government Code Sections 65864
through 65869.5, the California Environmental Quality Act ( "CEQA "), and Chapter
19.60 of the Municipal Code; and
J. WHEREAS, the City Council and the Planning Commission have found that this
Agreement is consistent with the objectives, policies, general land uses and programs
specified in the South San Francisco General Plan as adopted on October 13, 1999 and as
amended from time to time; and
K. WHEREAS, on , 2013, the City Council adopted Ordinance No.
approving and adopting this Agreement and the Ordinance thereafter took effect on
52013.
AGREEMENT
NOW, THEREFORE, the Parties, pursuant to the authority contained in Government Code
Sections 65864 through 65869.5 and Chapter 19.60 of the Municipal Code and in consideration
of the mutual covenants and agreements contained herein, agree as follows:
1. Effective Date
Pursuant to Section 19.60.140 of the Municipal Code, notwithstanding the fact that the
City Council adopts an ordinance approving this Agreement, this Agreement shall be
effective and shall only create obligations for the Parties from and after the date that the
ordinance approving this Agreement takes effect ( "Effective Date ").
2. Duration
This Agreement shall expire twelve (12) years from the Effective Date, but in no event
later than December 31, 2025. Notwithstanding the foregoing, if litigation against the
Owner (or any of its officers, agents, employees, contractors, representatives or
consultants) to which the City also is a party should delay implementation or construction
on the Property of the "Project" (as defined in Section 3 below), the expiration date of
this Agreement shall be extended for a period equal to the length of time from the time
the summons and complaint is served on the defendant(s) until the judgment entered by
the court is final, and not subject to appeal; provided, however, that the total amount of
time for which the expiration date shall be extended as a result of such litigation shall not
exceed five (5) years.
3. Project Description, Development Standards For Project
The project to be developed on the Property pursuant to this Agreement (the "Project ")
shall consist of the phased removal and replacement of existing buildings on the 22.6 -
acre project site and construction of five to six new buildings and two to four parking
structures, in multiple phases from 2013 to 2025, and exterior landscaping and
driveways, and other related improvements, to create a connected, pedestrian- friendly
campus -style development, as more particularly described in the Master Plan and the
Phase 1 Precise Plan (attached as Exhibit B and Exhibit C respectively) and as approved
by the City Council.
(a) The permitted uses, the density and intensity of uses, the maximum heights,
locations and total area of the proposed buildings, the development schedule, the
provisions for vehicular access and parking, any reservation or dedication of land,
any public improvements, facilities and services, and all environmental impact
mitigation measures imposed as approval conditions for the Project shall be
exclusively those provided in the Master Plan and Phase 1 Precise Plan, the
Gateway Business Park Master Plan Project Environmental Impact Report dated
January 2010, this Agreement, and the applicable ordinances in effect as of the
Effective Date, except as modified in this Agreement. The Project will be
redeveloped in multiple phases. Each new phase of development will adhere to
the governing Municipal Code provisions applicable to the Property as of the
Effective Date (except as modified by this Agreement), as well as the
development guidelines set forth in the Gateway Master Plan Development
Standards, including the implementation of access, service and parking needs to
support each new phase of redevelopment. During each particular redevelopment
phase, Owner will maintain existing access, service and parking needs to support
existing improvements located on portions of the Property, yet to be redeveloped
during subsequent phases. Plan details for subsequent phases will be submitted to
the City for appropriate review and approval, in the form of future Precise Plans.
(b) Subject to Owner's fulfillment of its obligations under this Agreement, upon the
Effective Date of this Agreement, the City hereby grants to Owner a vested right
to develop and construct on the Property all the improvements for the Project
authorized by, and in accordance with, the terms of this Agreement, the Master
Plan and Phase 1 Precise Plan (as approved by the City Council) and the
applicable ordinances in effect as of the Effective Date.
(c) Upon such grant of right, no future amendments to the City General Plan, the City
Zoning Code, the Municipal Code, or other City ordinances, policies or
regulations in effect as of the Effective Date shall apply to the Project, except
such future modifications that are not in conflict with and do not prevent the
development proposed in the Master Plan and Phase 1 Precise Plan; provided,
however, that nothing in this Agreement shall prevent or preclude the City from
adopting any land use regulations or amendments expressly permitted herein or
otherwise required by State or Federal Law.
(d) Owner shall cause the Project to be submitted for certification pursuant to the
Leadership in Energy and Environmental Design ( "LEED ") Green Building
Rating System of the U.S. Green Building Council or other industry equivalent
agency. Owner shall use good faith efforts to achieve a "Silver" rating, pursuant
to the LEED Green Building Rating System. Provided, however, that Owner
shall not be in default under this Agreement if, notwithstanding Owner's good
faith efforts, the Project does not receive a "Silver" (or higher) rating.
4. Permits for Project
Owner shall submit Precise Plans for future phases of development of the Project,
consistent with Chapter 20.220 of the South San Francisco Municipal Code, as may be
amended from time to time. The future Precise Plan(s) shall address, at a minimum, the
building architecture, landscaping, and common improvements required for each phase of
the Project. Evaluation of future Precise Plans shall be reviewed for consistency with the
Master Plan and this Agreement, as approved by the City Council and vested by this
Agreement, as of the Effective Date. Notwithstanding the foregoing, future Precise Plans
shall comply with all applicable Uniform Codes, the Municipal Code in effect as of the
Effective Date, CEQA requirements (including any required mitigation measures) and
Federal and State Laws.
5. Vesting of Approvals
Upon the City's approval of the Master Plan, the Phase 1 Precise Plan, this Agreement,
and future phase Precise Plans, each such approval shall be vested in Owner and its
successors and assigns for the term of this Agreement, provided that the successors and
assigns comply with the terms and conditions of all of the foregoing, including, but not
limited to, submission of insurance certificates and bonds for the grading of the Property
and construction of improvements.
6. Cooperation Between Parties in Implementation of this Agreement
It is the Parties' express intent to cooperate with one another and diligently work to
implement all land use and building approvals for development of the Property in
accordance with the terms of this Agreement. Accordingly, Owner and the City shall
proceed in a reasonable and timely manner, in compliance with the deadlines mandated
by applicable agreements, statutes or ordinances, to complete all steps necessary for
implementation of this Agreement and development of the Property in accordance with
the terms of this Agreement. The City shall proceed in an expeditious manner to
complete all actions required for the development of the Project, including, but not
limited to, the following:
(a) Scheduling all required public hearings by the City Council and City Planning
Commission; and
(b) Processing and checking all maps, plans, permits, building plans and
specifications and other plans relating to development of the Property filed by
Owner or its nominee, successor or assign as necessary for development of the
Property, and inspecting and providing acceptance of or comments on work by
Owner that requires acceptance or approval by the City.
Owner, in a timely manner, shall provide the City with all documents, applications, plans
and other information necessary for the City to carry out its obligations hereunder and to
cause its planners, engineers and all other consultants to submit in a timely manner all
necessary materials and documents.
7. Acquisition of Other Property, Eminent Domain
In order to facilitate and insure development of the Project in accordance with the Master
Plan and the City Council's approval, the City may assist Owner, at Owner's request and
at Owner's sole cost and expense, in acquiring any easements or properties necessary for
the satisfaction and completion of any off -site components of the Project required by the
City Council to be constructed or obtained by Owner in the Council's approval of the
Project and the Master Plan and Phase 1 Precise Plan, in the event Owner is unable to
acquire such easements or properties or is unable to secure the necessary agreements with
the applicable property owners for such easements or properties. Owner expressly
acknowledges that the City is under no obligation to use its power of Eminent Domain.
8. Maintenance Obligations on Property
All of the Property subject to this Agreement shall be maintained by Owner or its
successors in perpetuity in accordance with City requirements to prevent accumulation of
litter and trash, to keep weeds abated, to provide erosion control, and to comply with
other requirements set forth in the Municipal Code, subject to City approval as permitted
or required by the Municipal Code.
(a) If Owner subdivides the property or otherwise transfers ownership of a parcel or
building in the Project to any person or entity such that the Owner, or Owner's
member, partner, parent, or subsidiary, no longer owns a majority interest in a
parcel or building in the Project, Owner shall first establish an Owner's
Association and submit Conditions, Covenants and Restrictions ( "CC &Rs ") to the
City for review and approval by the City Attorney not to be unreasonably
withheld, conditioned or delayed. Said CC &Rs shall satisfy the requirements of
Section 19.36.040 of the Municipal Code.
(b) Any provisions of said CC &Rs governing the Project relating to the maintenance
obligations under this section shall be enforceable by the City.
9. Reserved
10. New Taxes
Any subsequently enacted City -wide taxes shall apply to the Property, provided that:
(i) the application of such taxes to the Property is prospective; and (ii) the application of
such taxes would not prevent development in accordance with this Agreement.
11. Assessments
Nothing herein shall be construed to relieve the Property from common benefit
assessments levied against it and similarly situated properties by the City pursuant to and
in accordance with any statutory procedure for the assessment of property to pay for
infrastructure and /or services that benefit the Property.
12. Additional Conditions
Owner shall comply with all of the following requirements:
(a) Fees. Owner shall not be responsible for any fees imposed by the City in
connection with the development and construction of the Project, except as
outlined in this Agreement and those fees in existence as of the Effective Date, all
of which are identified in Exhibit E hereto. No fee requirements (other than those
identified herein) imposed by the City on or after the Effective Date and no
changes to existing fee requirements (except those currently subject to periodic
adjustments as specified in the adopting or implementing resolutions and
ordinances) that occurred on or after the Effective Date, shall apply to the Project.
Any application, processing, administrative, legal and inspection fees that are
revised during the term of this Agreement shall apply to the Project provided that
(i) such fees have general applicability; (ii) the application of such fees to the
Property is prospective; and (iii) the application of such fees would not prevent
development in accordance with this Agreement.
1) Impact Fees. Owner shall pay the East of 101 Traffic Impact fee, the
Oyster Point Interchange fee, the Sewer Impact fee, and the Childcare fee,
based on the application of the formulas in effect as of the time the City
issues each building permit for each phase of the Project, and shall be
payable substantially concurrently with, but not later than, the issuance of
each such building permit. All such impact fees shall be based on net new
square footage.
2) Park In -Lieu Fee. The City is evaluating a "Park In -Lieu Fee" to support
the creation of additional public open space in lieu of requiring that
applicants avail one -half an acre per 1,000 new employees, to the public in
the East of 101 area. Owner shall pay a Park In -Lieu Fee of $4.78 per
square foot of development, excluding parking structures. The fee payable
may be reduced if the City adopts such a Park In -Lieu Fee applicable to
developments in the East of 101 area similar to the Gateway Business Park
Master Plan Project and the amount owed per square foot under that Park
In -Lieu Fee is less than $4.78 per square foot in which case Owner shall
pay the amount set forth in the Park In -Lieu Fee applicable to
developments in the East of 101 area, rather than the $4.78 per square foot
fee. Owner shall receive a credit to offset a portion of the Park In -Lieu
Fee, for development of private open space created within the Gateway
Master Plan. Owner's credit shall be identical to the credit, if any,
allowed under the Park In -Lieu Fee program, if implemented, except that
(i) in no case, shall owner receive a credit offsetting less than 25% of
Owner's required fee, or more than 50% of Owner's required fee; and (ii)
in no case shall zoning or building code required open areas, including but
not limited to the ten - percent landscaping requirement (SSFMC, §
20.300.007(F)(1)(a)) and setbacks, be counted towards any offsetting
credit. Owner shall pay the Park In -Lieu Fee once per phase, upon
issuance of the first tenant improvement permit for each phase, based upon
the total square footage approved for development for that phase.
(b) Child Care. If the existing childcare facility located at 850 Gateway Boulevard
remains in place, and retains its status as a fully licensed and operational childcare
facility serving at least 100 children, no additional childcare requirement (other
than the City's Childcare Fee described in SSFMC, Chapter 20.310) will be
imposed. However, if the 850 Gateway Boulevard facility is eliminated:
1) Owner shall construct and have ready for occupancy, a childcare facility
of approximately 8,000 square feet designed to accommodate a minimum
of 100 children within the Project or within one mile of the Project no later
than the earlier of
i. the date when the stabilized employee population within the
Project reaches that required to sustain a facility that
accommodates a minimum of 100 children; or
ii. occupancy of the final building to be constructed under the
Gateway Master Plan; or
iii. one year prior to the expiration of this Agreement.
Accordingly, Owner shall submit design plans for the childcare facility no
later than December 31, 2021, and shall obtain all required permits,
including building permits and commence construction of the facility no
later than December 31, 2022. If the childcare facility is open to the
public, City and Owner may mutually agree to allow the City to operate
the facility.
2) Notwithstanding the foregoing, if circumstances prevail that new
construction does not exceed 650,000 square feet and the existing
childcare facility at 850 Gateway Boulevard is eliminated, Owner may
alternatively meet this requirement by providing a one dollar ($1) per
square foot childcare in -lieu fee for the Net New Construction (defined
below) that has occurred as of December 31, 2022. "Net New
Construction" means the total square footage of any permitted building
constructed to implement the Project, reduced by the square footage of any
permitted building that existed on the Effective Date and has been
demolished to implement the Project. Each year after 2013, the one dollar
($1) per square foot fee shall automatically be increased at a rate equal to
the Change from Prior Year for the Consumer Price Index —All Urban
Consumers, for the San Francisco - Oakland -San Jose Area. If Owner
elects to satisfy this childcare requirement through payment of this in -lieu
fee, the in -lieu fee shall be paid no later than December 31, 2022. If
building permits are issued for additional Net New Construction between
December 31, 2022 and December 31, 2025, such Net New Construction
will be subject to a childcare in -lieu fee no greater than the childcare in-
lieu fee set forth in this Section 12(b)(2).
3) If the 850 Gateway Boulevard childcare facility is eliminated or not fully
licensed and operational as described above, and Owner fails to either
construct a new childcare facility in accordance with the provisions of
Section 12(b)(1), or pay the in -lieu fee in accordance with the provisions
of Section 12(b)(2), Owner shall instead pay a fee equal to the City's
estimated reasonable costs, including all costs associated with site
acquisition (including, if necessary, eminent domain), environmental
review, permitting, and all other expenses and fees, including reasonable
attorneys' fees, required to construct a childcare facility of equivalent size
and quality as that described in Section 12(b)(1).
(c) Transportation Demand Management Plan. Owner shall prepare an annual
Transportation Demand Management (TDM) report, and submit same to City, to
document the effectiveness of the TDM plan in achieving the goal of 35%
alternative mode usage by employees within the Project when the Project is built
out to a 1.0 FAR or less, or a graduated scale between 35% and 40% alternative
mode usage ( "Targeted Alternative Mode Usage ") when the Project is built out
between a 1.0 and 1.25 FAR. The Targeted Alternative Mode Usage will be
determined as follows:
FAR Alternative Mode Usage
<1.0 35%
1.01 1.12 38%
1.13 1.25 40%
The TDM report will be prepared by an independent consultant, retained by City with the
approval of Owner (which approval shall not be unreasonably withheld or delayed) and
paid for by Owner, which consultant will work in concert with Owner's TDM
coordinator. The TDM report will include a determination of historical employee
commute methods, which information shall be obtained by survey of all employees
working in the redeveloped buildings on the Property. All non - responses to the employee
commute survey will be counted as a drive alone trip. TDM monitoring shall be required
and conducted pursuant to South San Francisco Municipal Code, Chapter 20.400, as that
Chapter may be revised, amended, or reorganized from time to time.
1) TDM Reports: The initial TDM report for each redeveloped building on
the Property will be submitted two (2) years after the granting of a
certificate of occupancy with respect to the building, and this requirement
will apply to all of the redeveloped buildings on the Property except the
parking facilities. The second and all later reports with respect to each
building shall be included in an annual comprehensive TDM report
submitted to City covering all of the redeveloped buildings on the
Property which are submitting their second or later TDM reports.
2) Report Requirements: The goal of the TDM program is to encourage
alternative mode usage, as defined in Chapter 20.400 of the South San
Francisco Municipal Code. The initial TDM report shall either: (1) state
that the applicable property has achieved the Targeted Alternative Mode
Usage, based on the number of employees in the redeveloped buildings at
the time, providing supporting statistics and analysis to establish
attainment of the goal; or (2) state that the applicable property has not
achieved the Targeted Alternative Mode Usage, providing an explanation
of how and why the goal has not been reached, and a description of
additional measures that will be adopted in the coming year to attain the
Targeted Alternative Mode Usage.
3) Penalty for Non - Compliance: If after the initial TDM report, subsequent
annual reports indicate that, in spite of the changes in the TDM plan, the
Targeted Alternative Mode Usage is still not being achieved, or if Owner
fails to submit such a TDM report at the times described above, City may
assess Owner a penalty in the amount of Fifteen Thousand Dollars
($15,000.00) per year for each percentage point that the actual alternative
mode usage is below the Targeted Alternative Mode Usage goal.
i. In determining whether a financial penalty is appropriate, City may
consider whether Owner has made a good faith effort to meet the
TDM goals.
ii. If City determines that Owner has made a good faith effort to meet
the TDM goals but a penalty is still imposed, and such penalty is
imposed within the first three (3) years of the TDM plan
(commencing with the first year in which a penalty could be
imposed), such penalty sums, in the City's sole discretion, may be
used by Owner toward the implementation of the TDM plan
instead of being paid to City. If the penalty is used to implement
the TDM Plan, an Implementation Plan shall be reviewed and
approved by the City prior to expending any penalty funds.
iii. Notwithstanding the foregoing, the amount of any penalty shall
bear the same relationship to the maximum penalty as the
completed construction to which the penalty applies bears to the
maximum amount of square feet of Office, Commercial, Retail and
Research and Development use permitted to be constructed on the
Property. For example, if there is 200,000 square feet of
completed construction on the Property included within the TDM
report with respect to which the penalty is imposed, the penalty
would be determined by multiplying Fifteen Thousand Dollars
($15,000.00) times a fraction, the numerator of which is 200,000
square feet and the denominator of which is the maximum amount
of square feet of building construction, excluding parking facilities,
permitted on the Property; this amount would then be multiplied by
the number of percentage points that the actual alternative mode
usage is below the Targeted Alternative Mode Usage goal.
iv. The provisions of this section are incorporated as Conditions of
Approval for the Project and shall be included in the approved
TDM for the Project.
(d) Transit Station or Ferry Terminal Enhancement Contribution. Owner shall
pay an in -lieu fee to be used for enhancing, enlarging, repairing, restoring,
renovating, remodeling, redecorating, maintaining, and /or refurbishing the
Caltrain Station located at 590 Dubuque Avenue, the Oyster Point Ferry terminal
and /or their associated facilities. The in -lieu fee shall be in the amount of one
dollar per square foot of building area excluding parking structures for each phase
of development and shall be payable in two (2) equal installments per phase.
One -half (1/2) of the in -lieu fee shall be payable substantially concurrently with,
but not later than, the issuance of the building permit for the shell of the building,
and one -half (1/2) of the in -lieu fee shall be payable prior to the issuance of a
Certificate of Occupancy for the shell of the building.
(e) Public Safety Impact Fee. As provided in Exhibit E, Owner shall pay the Public
Safety Impact Fee, as set forth in Resolution No. 97 -2012, adopted on December
10, 2012.
(f) EIR. The Parties will adhere to the Conditions of Approval for the Project and
the Mitigations which result from the Gateway Business Park Master Plan Project
Environmental Impact Report and Mitigation Monitoring and Reporting Program.
Entitlement review for future Project phases will be limited in scope, so long as
consistent with the EIR and Master Plan book and Design Guidelines.
13. Indemnity
Owner agrees to indemnify, defend (with counsel selected by the City subject to the
reasonable approval of Owner) and hold harmless the City, and its elected and appointed
councils, boards, commissions, officers, agents, employees, and representatives from any
and all claims, costs (including legal fees and costs) and liability for any personal injury
or property damage which may arise directly or indirectly as a result of any actions or
inactions by Owner, or any actions or inactions of Owner's contractors, subcontractors,
agents, or employees in connection with the construction, improvement, operation, or
maintenance of the Project, provided that Owner shall have no indemnification obligation
with respect to gross negligence or willful misconduct of the City, its contractors,
subcontractors, agents or employees or with respect to the maintenance, use or condition
of any public improvement after the time it has been dedicated to and accepted by the
City or another public entity (except as provided in an improvement agreement or
maintenance bond).
14. Interests of Other Owners
Owner has no knowledge of any reason why Owner, and any other persons holding legal
or equitable interests in the Property as of the Effective Date, will not be bound by this
Agreement.
15. Assignment
(a) Right to Assign. Owner may at any time or from time to time transfer its right,
title or interest in or to all or any portion of the Property. In accordance with
Government Code Section 65868.5, the burdens of this Agreement shall be
binding upon, and the benefits of this Agreement shall inure to, all successors in
interest to Owner. As a condition precedent to any such transfer, Owner shall
require the transferee to acknowledge in writing that transferee has been
informed, understands and agrees that the burdens and benefits under this
Agreement relating to such transferred property shall be binding upon and inure to
the benefit of the transferee.
(b) Notice of Assignment or Transfer. No transfer, sale or assignment of Owner's
rights, interests and obligations under this Agreement shall occur without prior
written notice to the City and approval by the City Manager, which approval shall
not be unreasonably withheld, conditioned or delayed. The City Manager shall
consider and decide the matter within ten (10) days after Owner's notice,
provided all necessary documents, certifications and other information evidencing
the ability of the transferee's ability to perform under this Agreement, are
provided to the City Manager.
(c) Exception for Notice. Notwithstanding Section 15(b), Owner may at any time,
upon notice to the City but without the necessity of any approval by the City,
transfer the Property or any part thereof and all or any part of Owner's rights,
interests and obligations under this Agreement to: (i) any subsidiary, affiliate,
parent or other entity which controls, is controlled by or is under common control
with Owner, (ii) any member or partner of Owner or any subsidiary, parent or
affiliate of any such member or partner, or (iii) any successor or successors to
Owner by merger, consolidation, non - bankruptcy reorganization or government
action. As used in this subsection, "control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management or policies,
whether through the ownership of voting securities, partnership interest, contracts
(other than those that transfer Owner's interest in the property to a third party not
specifically identified in this subsection) or otherwise.
(d) Release Upon Transfer. Upon the transfer, sale, or assignment of all of Owner's
rights, interests and obligations under this Agreement pursuant to Section 15(a),
Section 15 (b) or Section 15(c) of this Agreement, Owner shall be released from
the obligations under this Agreement, with respect to the Property, or portion
thereof, transferred, sold, or assigned, arising subsequent to the date of the City
Manager's approval of such transfer, sale, or assignment or the effective date of
such transfer, sale or assignment, whichever occurs later; provided, however, that
if any transferee, purchaser or assignee approved by the City Manager expressly
assumes any right, interest or obligation of Owner under this Agreement, Owner
shall be released with respect to such rights, interests and assumed obligations. In
any event, the transferee, purchaser or assignee shall be subject to all the
provisions hereof and shall provide all necessary documents, certifications and
other necessary information prior to City Manager approval, where such approval
is required as set forth in Section 15(b), above.
(e) Owner's Right to Retain Specified Rights or Obligations. Notwithstanding
Section 15(a) and Section 15(c), Owner may withhold from a sale, transfer or
assignment of this Agreement certain rights, interests and /or obligations which
Owner shall retain, provided that Owner specifies such rights, interests and /or
obligations in a written document to be appended to or maintained with this
Agreement and recorded with the San Mateo County Recorder prior to or
concurrently with the sale, transfer or assignment. Owner's purchaser, transferee
or assignee shall then have no interest in or obligations for such retained rights,
interests and obligations and this Agreement shall remain applicable to Owner
with respect to such retained rights, interests and /or obligations.
(f) Time for Notice. Within ten (10) days of the date escrow closes on any such
transfer, Owner shall notify the City in writing of the name and address of the
transferee. Said notice shall include a statement as to the obligations, including
any mitigation measures, fees, improvements or other conditions of approval,
assumed by the transferee. Any transfer which does not comply with the notice
requirements of this Section and Section 15(b) shall not release the Owner from
its obligations to the City under this Agreement until such time as the City is
provided notice in accordance with Section 15(b).
16. Insurance
(a) Commercial General Liability Insurance. At all times that Owner is constructing
any portion or phase of the Project, or any improvement related to any portion or
phase of the Project, Owner shall maintain in effect a policy of commercial
general liability insurance with a per - occurrence combined single limit of not less
than ten million dollars ($10,000,000.00). With the exception of workers'
compensation and employer's liability, this insurance shall include City as an
additional insured to the extent liability is caused by work or operations
performed by or on behalf of Owner.
(b) Workers Compensation Insurance. At all times that Owner is constructing any
portion or phase of the Project, or any improvement related to any portion or
phase of the Project, Owner shall maintain Worker's Compensation insurance for
all persons employed by Owner for work at the Project site. Owner shall require
each contractor and subcontractor similarly to provide Worker's Compensation
insurance for its respective employees. Owner agrees to indemnify the City for
any damage resulting from Owner's failure to maintain any such required
insurance.
(c) Evidence of Insurance. Prior to commencement of any construction of any
portion or phase of the Project, or any improvement related to any portion or
phase of the Project, Owner shall furnish the City satisfactory evidence of the
insurance required in subsections (a) and (h).
1) In the event of a reduction (below the limits required in this Agreement) or
cancellation in coverage, or an adverse material change in insurance
coverage and limits required in this Agreement, Owner shall, prior to such
reduction, cancellation or change, provide at least ten (10) days' prior
written notice to the City, regardless of any notification by the applicable
insurer. If the City discovers that the policies have been cancelled or
reduced below the limits required in this Agreement and no notice has
been provided by either insurer or Owner, said failure shall constitute a
material breach of this Agreement.
2) In the event of a reduction (below the limits required by this Agreement)
or cancellation in coverage, Owner shall have five (5) days in which to
provide evidence of the required coverage during which time no persons
shall enter the Property to construct improvements thereon, including
construction activities related to the landscaping and common
improvements. Additionally, no persons not employed by existing tenants
shall enter the Property to perform such work until such time as the City
receives evidence of substitute coverage.
3) If Owner fails to obtain substitute coverage within ten (10) days, the City
may obtain, but is not required to obtain, substitute coverage and charge
Owner the cost of such coverage plus an administrative fee equal to ten
percent (10 %) of the premium for said coverage.
(d) The insurance shall include the City, its elective and appointive boards,
commissions, officers, agents, employees and representatives as additional
insureds on the policies.
17. Covenants Run With the Land
The terms of this Agreement are legislative in nature, and apply to the Property as
regulatory ordinances. During the term of this Agreement, all of the provisions,
agreements, rights, powers, standards, terms, covenants and obligations contained in this
Agreement shall run with the land and shall be binding upon the Parties and their
respective heirs, successors (by merger, consolidation or otherwise) and assigns,
devisees, administrators, representatives, lessees and all other persons or entities
acquiring the Property, any lot, parcel or any portion thereof, and any interest therein,
whether by sale, operation of law or other manner, and they shall inure to the benefit of
the Parties and their respective successors.
18. Conflict With State or Federal Law
In the event that State or Federal laws or regulations, enacted after the Effective Date,
prevent or preclude compliance with one or more provisions of this Agreement, such
provisions of this Agreement shall be modified (in accordance with Section 19 set forth
below) or suspended as may be necessary to comply with such State or Federal laws or
regulations. Notwithstanding the foregoing, Owner shall have the right to challenge, at
its sole cost, in a court of competent jurisdiction, the law or regulation preventing
compliance with the terms of this Agreement and, if the challenge in a court of competent
jurisdiction is successful, this Agreement shall remain unmodified and in full force and
effect.
19. Procedure for Modification Because of Conflict With State or Federal Laws
In the event that State or Federal laws or regulations enacted after the Effective Date
prevent or preclude compliance with one or more provisions of this Agreement or require
changes in plans, maps or permits approved by the City, the Parties shall meet and confer
in good faith in a reasonable attempt to modify this Agreement to comply with such State
or Federal law or regulation. Any such amendment or suspension of the Agreement shall
be approved by the City Council in accordance with Chapter 19.60 of the Municipal
Code.
20. Periodic Review
(a) During the term of this Agreement, the City shall conduct "annual" and /or
"special" reviews of Owner's good faith compliance with the terms and
conditions of this Agreement in accordance with the procedures set forth in
Chapter 19.60 of the Municipal Code. The City may recover reasonable costs
incurred in conducting said review, including staff time expended and reasonable
attorneys' fees.
(b) At least five (5) calendar days' prior to any hearing on any annual or special
review, the City shall mail Owner a copy of all staff reports and, to the extent
practical, related exhibits. Owner shall be permitted an opportunity to be heard
orally or in writing regarding its performance under this Agreement before the
City Council or, if the matter is referred to the Planning Commission, then before
said Commission. Following completion of any annual or special review, the City
shall give Owner a written Notice of Action, which Notice shall include a
determination, based upon information known or made known to the City Council
or the City's Planning Director as of the date of such review, whether Owner is in
default under this Agreement and, if so, the alleged nature of the default, a
reasonable period to cure such default, and suggested or potential actions that the
City may take if such default is not cured by Owner.
21. Amendment or Cancellation of Agreement
This Agreement may be further amended or terminated only in writing and in the manner
set forth in Government Code Sections 65865.1, 65867.5, 65868, 65868.5 and Chapter
19.60 of the Municipal Code.
22. Agreement is Entire Agreement
This Agreement and all exhibits attached hereto or incorporated herein contain the sole
and entire agreement between the Parties concerning Owner's entitlements to develop the
Property. The Parties acknowledge and agree that neither of them has made any
representation with respect to the subject matter of this Agreement or any representations
inducing the execution and delivery hereof, except representations set forth herein, and
each Party acknowledges that it has relied on its own judgment in entering this
Agreement. The Parties further acknowledge that all statements or representations that
heretofore may have been made by either of them to the other are void and of no effect,
and that neither of them has relied thereon in its dealings with the other.
23. Events of Default
Failure by either Party to perform any material term or provision of this Agreement shall
constitute a default. Owner shall also specifically be in default under this Agreement
upon the happening of one or more of the following events:
(a) If a warranty, representation or statement made or furnished by Owner to the City
is false or proves to have been false in any material respect when it was made; or,
(b) A finding and determination by the City made following an annual or special
review under the procedure provided for in Government Code Section 65865.1
and Chapter 19.60 of the Municipal Code that, upon the basis of substantial
evidence, Owner has not complied in good faith with the terms and conditions of
this Agreement; or,
(c) Owner fails to fulfill any of its obligations set forth in this Agreement and such
failure continues beyond any applicable cure period provided in this Agreement.
This provision shall not be interpreted to create a cure period for any event of
default where such cure period is not specifically provided for in this Agreement.
24. Procedure Upon Default
(a) Upon the occurrence of an event of default, either Party may terminate or modify
this Agreement in accordance with the provisions of Government Code Section
65865.1 and of Chapter 19.60 of the Municipal Code, provided Section 24(e) has
been complied with.
(b) The City shall not be deemed to have waived any claim of defect in Owner's
performance if, on annual or special review, the City does not propose to
terminate this Agreement.
(c) No waiver or failure by the City or Owner to enforce any provision of this
Agreement shall be deemed to be a waiver of any provision of this Agreement or
of any subsequent breach of the same or any other provision.
(d) Any actions for breach of this Agreement shall be decided in accordance with
California law. The remedy for breach of this Agreement shall be limited to
specific performance and attorneys' fees as provided in Section 25 (a).
(e) The non - defaulting Party shall give the defaulting Party written notice of any
default under this Agreement, and the defaulting Party shall have thirty (30) days
after the date of the notice to cure the default or to reasonably commence the
procedures or actions needed to cure the default; provided, however, that if such
default is not capable of being cured within such thirty (30) day period, the
defaulting Party shall have such additional time to cure as is reasonably
necessary.
25. Attorneys' Fees and Costs
(a) Action by Party. If legal action by either Party is brought because of breach of
this Agreement or to enforce a provision of this Agreement, the prevailing Party is
entitled to reasonable attorneys' fees and court costs.
(b) Action by Third Party. If any person or entity not a party to this Agreement
initiates an action at law or in equity to challenge the validity of any provision of
this Agreement or the Project approvals, the Parties shall cooperate in defending
such action. Owner shall bear its own costs of defense as a real party in interest in
any such action, and shall reimburse the City for all reasonable court costs and
attorneys' fees expended by the City in defense of any such action or other
proceeding or payable to any prevailing plaintiff /petitioner.
26. Severability
If any material term or condition of this Agreement is for any reason held by a final
judgment of a court of competent jurisdiction to be invalid, and if the same constitutes a
material change in the consideration for this Agreement, then either Party may elect in
writing to invalidate this entire Agreement, and thereafter this entire Agreement shall be
deemed null and void and of no further force or effect following such election.
27. No Third Parties Benefited
No person other than the City, Owner, or their respective successors is intended to or
shall have any right or claim under this Agreement, this Agreement being for the sole
benefit and protection of the Parties and their respective successors. Similarly, no
amendment or waiver of any provision of this Agreement shall require the consent or
acknowledgment of any person not a party or successor to this Agreement.
28. Binding Effect of Agreement
The provisions of this Agreement shall bind and inure to the benefit of the Parties
originally named herein and their respective successors and assigns.
29. Relationship of Parties
It is understood that this Agreement is a contract that has been negotiated and voluntarily
entered into by the City and Owner and that Owner is not an agent of the City. The
Parties do not intend to create a partnership, joint venture or any other joint business
relationship by this Agreement. The City and Owner hereby renounce the existence of
any form of joint venture or partnership between them, and agree that nothing contained
herein or in any document executed in connection herewith shall be construed as making
the City and Owner joint venturers or partners. Neither Owner nor any of Owner's
agents or contractors are or shall be considered to be agents of the City in connection
with the performance of Owner's obligations under this Agreement.
30. Bankruptcy
The obligations of this Agreement shall not be dischargeable in bankruptcy.
31. Mortgagee Protection: Certain Rights of Cure
(a) Mortgagee Protection. This Agreement shall be superior and senior to all liens
placed upon the Property or any portion thereof after the date on which this
Agreement or a memorandum of this Agreement is recorded with the San Mateo
County Recorder, including the lien of any deed of trust or mortgage
( "Mortgage "). Notwithstanding the foregoing, no breach hereof shall defeat,
invalidate, diminish or impair the lien of any Mortgage made in good faith and for
value, but all of the terms and conditions contained in this Agreement shall be
binding upon and effective against all persons and entities, including all deed of
trust beneficiaries or mortgagees ( "Mortgagees "), who acquire title to the
Property or any portion thereof by foreclosure, trustee's sale, deed in lieu of
foreclosure or otherwise.
(b) Mortgagee Not Obligated. No foreclosing Mortgagee shall have any obligation or
duty under this Agreement to construct or complete the construction of any
improvements required by this Agreement, or to pay for or guarantee construction
or completion thereof. The City, upon receipt of a written request therefor from a
foreclosing Mortgagee, shall permit the Mortgagee to succeed to the rights and
obligations of Owner under this Agreement, provided that all defaults by Owner
hereunder that are reasonably susceptible of being cured are cured by the
Mortgagee as soon as is reasonably possible. The foreclosing Mortgagee
thereafter shall comply with all of the provisions of this Agreement.
(c) Notice of Default to Mortgagee. If the City receives notice from a Mortgagee
requesting a copy of any notice of default given to Owner hereunder and
specifying the address for service thereof, the City shall deliver to the Mortgagee
concurrently with service thereof to Owner, all notices given to Owner describing
all claims by the City that Owner has defaulted hereunder. If the City determines
that Owner is in noncompliance with this Agreement, the City also shall serve
notice of noncompliance on the Mortgagee, concurrently with service thereof on
Owner. Until such time as the lien of the Mortgage has been extinguished, the
City shall:
1) Take no action to terminate this Agreement or exercise any other remedy
under this Agreement, unless the Mortgagee shall fail, within thirty (30)
days of receipt of the notice of default or notice of noncompliance, to cure
or remedy or commence to cure or remedy such default or noncompliance;
provided, however, that if such default or noncompliance is of a nature
that cannot be remedied by the Mortgagee or is of a nature that can only
be remedied by the Mortgagee after such Mortgagee has obtained
possession of and title to the Property, by deed -in -lieu of foreclosure or by
foreclosure or other appropriate proceedings, then such default or
noncompliance shall be deemed to be remedied by the Mortgagee if,
within ninety (90) days after receiving the notice of default or notice of
noncompliance from the City, (i) the Mortgagee shall have acquired title
to and possession of the Property, by deed -in -lieu of foreclosure, or shall
have commenced foreclosure or other appropriate proceedings, and (ii) the
Mortgagee diligently prosecutes any such foreclosure or other proceedings
to completion.
2) If the Mortgagee is prohibited from commencing or prosecuting
foreclosure or other appropriate proceedings by reason of any process or
injunction issued by any court or by reason of any action taken by any
court having jurisdiction over any bankruptcy or insolvency proceeding
involving Owner, then the times specified above for commencing or
prosecuting such foreclosure or other proceedings shall be extended for
the period of such prohibition.
(d) Performance by Mortgagee. Each Mortgagee shall have the right, but not the
obligation, at any time prior to termination of this Agreement, to do any act or
thing required of Owner under this Agreement, and to do any act or thing not in
violation of this Agreement, that may be necessary or proper in order to prevent
termination of this Agreement. All things so done and performed by a Mortgagee
shall be as effective to prevent a termination of this Agreement as the same would
have been if done and performed by Owner instead of by the Mortgagee. No
action or inaction by a Mortgagee pursuant to this Agreement shall relieve Owner
of its obligations under this Agreement.
(e) Mortgagee's Consent to Modifications. Subject to the sentence immediately
following, the City shall not consent to any amendment or modification of this
Agreement unless Owner provides the City with written evidence of each
Mortgagee's consent, which consent shall not be unreasonably withheld, to the
amendment or modification of this Agreement being sought. Each Mortgagee
shall be deemed to have consented to such amendment or modification if it does
not object to the City by written notice given to the City within thirty (30) days
from the date written notice of such amendment or modification is given by the
City or Owner to the Mortgagee, reasonable evidence of the delivery of which
notice shall be provided to the City if given only by Owner.
32. Estoppel Certificate
Either Party from time to time may deliver written notice to the other Party requesting
written certification that, to the knowledge of the certifying Party, (i) this Agreement is in
full force and effect and constitutes a binding obligation of the Parties; (ii) this
Agreement has not been amended or modified either orally or in writing, or, if it has been
amended or modified, specifying the nature of the amendments or modifications; and (iii)
the requesting Party is not in default in the performance of its obligations under this
Agreement, or if in default, describing therein the nature and monetary amount, if any, of
the default. A Party receiving a request hereunder shall endeavor to execute and return
the certificate within ten (10) days after receipt thereof, and shall in all events execute
and return the certificate within thirty (30) days after receipt thereof. However, a failure
to return a certificate within ten (10) days shall not be deemed a default of the Party's
obligations under this Agreement and no cause of action shall arise based on the failure
of a Party to execute such certificate within ten (10) days. The City Manager shall have
the right to execute the certificates requested by Owner hereunder. The City
acknowledges that a certificate hereunder may be relied upon by permitted transferees
and Mortgagees. At the request of Owner, the certificates provided by the City
establishing the status of this Agreement with respect to any lot or parcel shall be in
recordable form, and Owner shall have the right to record the certificate for the affected
portion of the Property at its cost.
33. Force Majeure
Notwithstanding anything to the contrary contained herein, either Party shall be excused
for the period of any delay in the performance of any of its obligations hereunder, except
the payment of money, when prevented or delayed from so doing by certain causes
beyond its control, including, and limited to, major weather differences from the normal
weather conditions for the South San Francisco area, war, acts of God or of the public
enemy, fires, explosions, floods, earthquakes, invasions by non - United States armed
forces, failure of transportation due to no fault of the Parties, unavailability of equipment,
supplies, materials or labor when such unavailability occurs despite the applicable Party's
good faith efforts to obtain same (good faith includes the present and actual ability to pay
market rates for said equipment, materials, supplies and labor), strikes of employees other
than Owner's, freight embargoes, sabotage, riots, acts of terrorism and acts of the
government (other than City) and /or a material adverse change in the financial and
commercial real estate demand markets, conditions which indicate an insufficient
economic return, including resource scarcities that make construction prohibitively
expensive and /or the inability of Owner to obtain funds for the Project, due to the
financial marketplace, (other than Owner's inability to obtain financing related to
Owner's financial condition) and are beyond the control or without the fault of the party
claiming an extension of time. The Party claiming such extension of time to perform
shall send written notice of the claimed extension to the other Party within thirty (30)
days from the commencement of the cause entitling the Party to the extension.
34. Rules of Construction and Miscellaneous Terms
(a) The singular includes the plural; the masculine gender includes the feminine;
"shall" is mandatory, "may" is permissive.
(b) Time is and shall be of the essence in this Agreement.
(c) Where a Party consists of more than one person, each such person shall be jointly
and severally liable for the performance of such Party's obligation hereunder.
(d) The captions in this Agreement are for convenience only, are not a part of this
Agreement and do not in any way limit or amplify the provisions thereof.
(e) This Agreement shall be interpreted and enforced in accordance with the laws of
the State of California in effect on the date thereof.
(f) This Agreement may be executed in multiple originals, each of which is deemed
an original, and may be signed in counterparts.
35. Exhibits
Exhibits to this Agreement, including the following, are all incorporated into this
Agreement by reference, as if set forth fully herein.
Exhibit A Legal Description and Map of Property
Exhibit B Gateway Business Park Master Plan
Exhibit C Gateway Business Park Phase 1 Precise Plan
Exhibit D Conditions of Project Approval and Gateway Business Park Master
Plan Project EIR Mitigation and Monitoring Program
Exhibit E Applicable City Fees
36. Notices
All notices required or provided for under this Agreement shall be in writing and
delivered in person (to include delivery by courier) or sent by certified mail, postage
prepaid, return receipt requested or by overnight delivery service. Notices to the City
shall be addressed as follow:
City Clerk
P.O. Box 711
South San Francisco, CA 94083
Notices to Owner shall be addressed as follows:
Gateway of Pacific LP
17190 Bernardo Center Drive
San Diego, CA 92128
Attn: Vice President, Real Estate Legal
A party may change its address for notice by giving notice in writing to the other party
and thereafter notices shall be addressed and transmitted to the new address.
IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day and year
first above written.
CITY:
CITY OF SOUTH SAN FRANCISCO
Lo
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
OWNER:
GATEWAY OF PACIFIC LP
By:
Its:
2078235.1
EXHIBIT E -1
1. FEES, TAXES, EXACTIONS, DEDICATION OBLIGATIONS, AND
ASSESSMENTS
Owner agrees that Owner shall be responsible for the payment of the following fees,
charges, exactions, taxes, and assessments (collectively, "Assessments ") in connection with the
development and construction of the Project. From time to time, the City may update, revise, or
change its Assessments. Further, nothing herein shall be construed to relieve the Property from
common benefit assessments levied against it and similarly situated properties by the City
pursuant to and in accordance with any statutory procedure for the assessment of property to pay
for infrastructure and /or services that benefit the Property. Except as indicated below, the amount
paid for a particular Assessment, shall be the amount owed, based on the calculation or formula
in place at the time payment is due, as specified below.
1.1 Administrative /Processing Fees. The Owner shall pay the applicable
application, processing, administrative, legal and inspection fees and charges, as currently
adopted pursuant to City's Master Fee Schedule and required by the City for processing of land
use entitlements, including without limitation, General Plan amendments, zoning changes,
precise plans, development agreements, conditional use permits, variances, transportation
demand management plans, tentative subdivision maps, parcel maps, lot line adjustments,
general plan maintenance fee, demolition permits, and building permits.
1.2 Impact Fees (Existing Fees). Except as modified below, existing impact fees
shall be paid for net new square footage at the rates and at the times prescribed in the
resolution(s) or ordinance(s) adopting and implementing the fees.
1.2.1 East of 101 Traffic Impact Fee (Resolution 84- 2007). East of 101 Traffic
Impact fees shall be paid for each Phase of the Project, in accordance with the resolution adopted
by the City Council at their meeting of May 23, 2007, and shall be determined based on the
application of the formula in effect at the time the City issues each building permit, and shall be
payable prior to the issuance of such building permit.
1.2.2 Oyster Point Grade Overpass Contribution Fee (Resolutions 102 -96 &
152 -96). Oyster Point Grade Overpass Contribution fees shall be paid for each Phase of the
Project, and shall be determined by the City Engineer, based on the application of the formula in
effect at the time the City issues each building permit, and shall be payable prior the issuance of
such building permit for each phase.
The fee will be calculated upon reviewing the information shown on the applicant's
construction plans and the latest Engineering News Record San Francisco Construction Cost
Index at the time of payment. The Engineering News Record San Francisco Construction Cost
Index figure contained in the Oyster Point Grade Overpass Contribution fee calculation, is
revised each month to reflect local inflation changes in the construction industry.
1.2.3 East of 101 Sewer Impact Fee (Resolution 97- 2002). The City of South
San Francisco has identified the need to investigate the condition and capacity of the sewer
system within the East of 101 area. The existing sewer collection system was originally
designed many years ago to accommodate warehouse and industrial use and is now proposed to
accommodate uses, such as offices and biotech facilities, with a much greater sewage flow.
These additional flows, plus groundwater infiltration into the existing sewers, due to ground
settlement and the age of the system, have resulted in pumping and collection capacity
constraints.
The applicant shall pay the East of 101 Sewer Facility Development Impact Fee, as
adopted by the City Council at their meeting of October 23, 2002. Sewer Impact fees shall be
paid for each Phase of the Project, and shall be determined based on the application of the
formula in effect at the time the City issues each building permit, and shall be payable prior to
the issuance of such building permit. The adopted fee is presently $3.19 per gallon of discharge
per day (this fee is adjusted on a yearly basis). It is determined that Office /R &D generates 400
gallons per day per 1000 square feet of development.
1.2.4 Childcare Impact Fee (SSFMC, ch. 20.310; Ordinance 1301 - 2001).
(a) Prior to receiving a Building Permit for each Phase of the Project,
the Owner shall pay the City's Childcare Fee, as described in South San Francisco Municipal
Code Chapter 20.310.
(b) Additionally, if the existing childcare facility located at 850
Gateway Boulevard remains in place, and retains its status as a fully licensed and operational
childcare facility serving at least 100 children, no additional childcare requirement (other than
the City's Childcare Fee described in Section 1.2.4(a) of this Exhibit E -1) will be imposed.
However, if the 850 Gateway Boulevard facility is eliminated, the Owner shall also comply with
the following:
(i) Owner shall construct and have ready for occupancy, a
childcare facility of approximately 8,000 square feet designed to accommodate a minimum of
100 children within the Project or within one mile of the Project no later than the earlier of::
(1) the date when the stabilized employee population
within the Project reaches that required to sustain a
facility that accommodates a minimum of 100
children; or
(2) occupancy of the final building to be constructed
under the Gateway Master Plan; or
(3) one year prior to the expiration of this Agreement.
Accordingly, Owner shall submit design plans for the childcare facility no later than December
31, 2021, and shall obtain all required permits, including building permits and commence
construction of the facility no later than December 31, 2022. If the childcare facility is open to
the public, City and Owner may mutually agree to allow the City to operate the facility.
(ii) Notwithstanding the foregoing, if circumstances prevail
such that new construction does not exceed 650,000 square feet and the existing childcare
facility at 850 Gateway Boulevard is eliminated, Owner may alternatively meet this requirement
by providing a one dollar ($1) per square foot childcare in -lieu fee for the Net New Construction
(defined below) that has occurred as of December 31, 2022. "Net New Construction" means the
total square footage of any permitted building constructed to implement the Project, reduced by
the square footage of any permitted building that existed on the Effective Date and has been
demolished to implement the Project. Each year after 2013, the one dollar ($1) per square foot
fee shall automatically be increased at a rate equal to the Change from Prior Year for the
Consumer Price Index —All Urban Consumers, for the San Francisco - Oakland -San Jose Area. If
Owner elects to satisfy this childcare requirement through payment of this in -lieu fee, the in -lieu
fee shall be paid no later than December 31, 2022. If building permits are issued for additional
Net New Construction between December 31, 2022 and December 31, 2025, such Net New
Construction will be subject to a childcare in -lieu fee no greater than the childcare in -lieu fee set
forth in this paragraph 1.2.4(b)(ii).
(iii) If the 850 Gateway Boulevard childcare facility is
eliminated or not fully licensed and operational as described above, and Owner fails to either
construct a new childcare facility in accordance with the provisions of paragraph 1.2.4(b)(i), or
pay the in -lieu fee in accordance with the provisions of paragraph 1.2.4(b)(ii), Owner shall
instead pay a fee equal to the City's estimated reasonable costs, including all costs associated
with site acquisition (including, if necessary, eminent domain), environmental review,
permitting, and all other expenses and fees, including reasonable attorneys' fees, required to
construct a childcare facility of equivalent size and quality as that described in paragraph
1.2.4(b)(i).
1.2.5 Public Safety Impact Fee. (Resolution 97 -2012) Prior to receiving a
building permit for each Phase of the Projects, the Owner shall pay the Public Safety Impact Fee,
as set forth in Resolution No. 97 -2012, adopted on December 10, 2012 to assist the City's Fire
Department and Police Department with funding the acquisition and maintenance of Police and
Fire Department vehicles, apparatus, equipment, and similar needs for the provision of public
safety services.
1.2.6 Sewer Capacity Charge. (Resolution 39 -2010) Prior to receiving a
building permit for each Phase of the Projects, the Owner shall pay the Sewer Capacity Charge,
as set forth in Resolution No. 39 -2010.
1.3 Other Exactions.
1.3.1 Park In -Lieu Fee. Owner shall pay a Park In -Lieu Fee of $4.78 per square
foot of development, excluding parking structures. The fee payable may be reduced if the City
adopts such a Park In -Lieu Fee applicable to developments in the East of 101 area similar to the
Gateway Business Park Master Plan Project and the amount owed per square foot under that
Park In -Lieu Fee is less than $4.78 per square foot in which case Owner shall pay the Park In-
Lieu Fee applicable to developments in the East of 101 area, rather than the $4.78 per square foot
fee. Owner shall receive a credit to offset a portion of the Park In -Lieu Fee, for development of
private open space created within the Gateway Master Plan. Owner's credit shall be identical to
the credit, if any, allowed under the Park In -Lieu Fee program, if implemented, except that (i) in
no case, shall owner receive a credit offsetting less than 25% or more than 50% of Owner's
required fee; and (ii) in no case shall zoning or building code required open areas, including but
not limited to the ten - percent landscaping requirement (SSFMC § 20.300.007(F)(1)(a)) and
setbacks, be counted towards any offsetting credit. Owner shall pay the Park In -Lieu Fee once
per phase, upon issuance of the first tenant improvement permit for each phase, based upon the
total square footage approved for development for that phase.
1.3.2 Transit Station or Ferry Terminal Enhancement Contribution. Owner
shall pay an in -lieu fee to be used for enhancing, enlarging, repairing, restoring, renovating,
remodeling, redecorating, maintaining, and /or refurbishing the Caltrain Station located at 590
Dubuque Avenue, the Oyster Point Ferry terminal and /or their associated facilities. The in -lieu
fee shall be in the amount of one dollar ($1.00) per square foot of building area excluding
parking structures for each phase of development and shall be payable in two (2) equal
installments per phase. One -half (1/2) of the in -lieu fee shall be payable substantially
concurrently with, but not later than, the issuance of the building permit for the shell of the
building, and one -half (1/2) of the in -lieu fee shall be payable prior to the issuance of a
Certificate of Occupancy for the shell of the building.
1.4 User Fees.
1.4.1 Sewer Service Charges (assessed as part of property tax bill)
1.4.2 Stormwater Charges (assessed as part of property tax bill)
2. FEE CREDITS
The Project includes the demolition of six (6) single story R &D office buildings. The calculation
for fee credits cannot be calculated at this time because the areas of those buildings were not
provided. Once provided, the City will be able to calculate the fee credits for the Oyster Point
Grade Overpass Contribution Fee, East of 101 Traffic Impact Fee, Sewer Impact Fee, Childcare
Impact Fee, childcare in -lieu fee (if applicable), Transit Station Enhancement Fee, and Public
Safety Fee.
Exhibit E -2
Illustrative Estimated Fee Table Including Fee Credits
Gateway Business Park Master
Plan
Illustrative calculations of estimated proposed fees for Master Plan and Phase I- Precise
Plan
R &D
Amenities
Total
Existing R &D Demolished
Net New GSF
Area Estimations*
All Phases
Phase 1
1,303,114
47,938
1,351,052
451,4E
47,9--,
499,4
284,000
107,5(
1,067,052
391,9
Estimated Existing and Proposed Fees, including
Fee Credits
All Phases
Phase I
Fee Category
Rate
Fee
Fee
East of 101 Traffic Impact Fee
$5.22
per NN GSF - R &D (1)
$
5,319,775.08
$
1,795,601.-)
(Resolution 84 -2007)
$5.22
per NN GSF - Amenity (2)(4)
$
250,236.36
$
250,236.3
Oyster Point Grade Overpass
varies by use
R &D and Amenity (2)
$
1,378,900.85
$
506,416.1)
Contribution Fee
(Resolutions 102 -96 & 152 -96)
East of 101 Sewer Impact Fee
$ 4.25
per NN GSF (any use)
$
1,813,988.40
$
666,269.1
(Resolution 97 -2002)
Sewer Capacity Fee
varies by use
R &D
TBD (3)
TBD (3)
(Resolution 39 -2010)
Office
of construction value, per
General Plan Maintenance Fee
0.0015
GSF
$
607,973.40
$
224,740.3
(Resolution 74 -2005)
(Assume value is $300 /sf)
Child Care Facility
$ 1.00
per NN GSF
$
1,067,052.00
$
391,923.a
(Section 12 of DA)
or construction of new child care facility
Child Care Impact Fee
$ 0.57
per NN GSF for R &D
$
580,894.98
$
196,071.4
(SSFMC 20.310)
per NN GSF for Amenity
* The areas are estimated and provided for the purpose of illustrating the fee calculation. The actual fee and fee credit fol
each phase will be calculated at the time of building permit submittal.
(1) - NN GSF refers to "Net New Gross Square Footage" and includes credits for demolished existing building areas,
typical.
(2) - Amenities building viewed as accessory use to R &D use, and therefore charged at the R &D rate
structure.
(3) - Sewer Capacity Fee calculation will vary by use based on application of Resolution 39 -2010.
(4) - Fee credit allocated under R &D
Fee.
$ 0.68 Bldg. (4)
$
32,597.84
$
32,597.E
Transit Station Enhancement Fee
(Cap)
$ 1.00 per NN GSF
$
1,067,052.00
$
391,923.a
(Section 12 of DA)
Park -in -Lieu Fee
$ 4.78 per GSF
$
6,458,028.56
$
2,387,2413
(Section 12 of DA)
or provide 0.5 acres of open space per 1,000
employees: Credit may be given for
development of private open space but in no
case shall owner receive a credit offsetting less
in-
than 25% of Owner's required fee, or more
than 50% of Owner's required fee
Public Safety Impact Fee
$ 0.44 per NN GSF
$
469,502.88
$
172,446.1
(Resolution 97 -2012)
Total of Fees
$19,046,002.35
$
7,015,467.E
Fees per GSF
$
14.10
$
14.0
* The areas are estimated and provided for the purpose of illustrating the fee calculation. The actual fee and fee credit fol
each phase will be calculated at the time of building permit submittal.
(1) - NN GSF refers to "Net New Gross Square Footage" and includes credits for demolished existing building areas,
typical.
(2) - Amenities building viewed as accessory use to R &D use, and therefore charged at the R &D rate
structure.
(3) - Sewer Capacity Fee calculation will vary by use based on application of Resolution 39 -2010.
(4) - Fee credit allocated under R &D
Fee.