HomeMy WebLinkAboutOrd. 1512-2016 ORDINANCE NO. 1512-2016
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
AN ORDINANCE APPROVING A DEVELOPMENT
AGREEMENT WITH MILLER CYPRESS SSF, LLC FOR 309
AIRPORT BLVD., 315 AIRPORT BLVD., 401-421 AIRPORT
BLVD., 405 CYPRESS AVE., AND 216 MILLER AVE
WHEREAS, the Successor Agency to the Redevelopment Agency of the City of South
San Francisco ("Agency") is the owner of certain real property located in the City of South San
Francisco ("City"), California, known as County Assessor's Parcel Number 012-317-110 ("401
Airport Boulevard"), 012-317-100 ("411 Airport Boulevard"), 012-317-090 ("421 Airport
Boulevard"), 012-314-100 ("405 Cypress Avenue"), 012-314-220 ("216 Miller Avenue"), 012-
318-080 ("315 Airport Boulevard") and collectively referred to as the "Agency Property"; and,
WHEREAS, in August, 2014, the Agency and Miller Cypress SSF, LLC ("Developer")
entered into an Exclusive Negotiation Rights Agreement ("ENRA") that established a mutual
understanding among the City, the Agency, and the Developer regarding the potential
development of the Agency Property; and,
WHEREAS, in conjunction with the potential acquisition of the Agency Property, the
Developer has acquired rights to entitle and develop County Assessor's Parcel Number 012-318-
040 ("309 Airport Boulevard"); and,
WHEREAS, the Developer has proposed construction of a high-density residential
development, consisting of 260 residential apartments in Phase 1, 12 for-sale residential
townhomes in Phase 2, and 342 total vehicle parking spaces ("Project") over 2.34 acres at the
following addresses: 309 Airport Blvd., 315 Airport Blvd., 401-421 Airport Blvd., 405 Cypress
Ave., and 216 Miller Ave. (collectively "Project Site") in the City; and,
WHEREAS, the Agency, is interested in selling the Agency Property to the Developer as
contemplated in the ENRA, contingent upon approval of this Development Agreement by the
City Council, Developer securing all funding for the Project, and Developer obtaining all
applicable land use entitlements from the City necessary to construct the Project on the Project
Site; and,
WHEREAS, the City and the Developer now wish to enter into a Development
Agreement (DA15-0003A) ("Development Agreement") that will supersede any points of
agreement contained within the ENRA; and,
WHEREAS, Phase 1 of the Project ("Phase 1 of the Project") includes the construction of
two seven story residential apartment buildings with a total of 260 rental units at both corners of
Airport Boulevard and Miller Avenue (309, 315, 401, 421 Airport Boulevard) and a private
parking lot at 405 Cypress Avenue; and,
WHEREAS, Phase 2 of the Project("Phase 2 of the Project") includes the construction of
twelve (12) new for-sale residential townhomes at 216 Miller Avenue; and,
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WHEREAS, Developer seeks approval of a Conditional Use Permit, Design Review,
Waiver and Modification, and Parking Reduction for the Project ("Land Use Entitlements ")
through a separate resolution; and,
WHEREAS, approval of the Developer's proposal is considered a "project" for purposes
of the California Environmental Quality Act, Pub. Resources Code § 21000, et seq. ("CEQA");
and,
WHEREAS, on January 28, 2015, the City Council certified an Environmental Impact
Report ("EIR") (State Clearinghouse number 2013102001) in accordance with the provisions of
the California Environmental Quality Act (Public Resources Code, §§ 21000, et seq., "CEQA")
and CEQA Guidelines, which analyzed the potential environmental impacts of the development
of the Downtown Station Area Specific Plan; and,
WHEREAS, on January 28, 2015, the City Council also adopted a Statement of
Overriding Considerations ("SOC") in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code, §§ 21000, et seq., "CEQA") and CEQA
Guidelines, which carefully considered each significant and unavoidable impact identified in the
EIR and found that the significant environmental impacts are acceptable in light of the project's
economic, legal, social, technological and other benefits; and,
WHEREAS, the City prepared an Environmental Consistency Analysis for the Project
and concluded that the Project would not result in any new significant environmental effects or a
substantial increase in the severity of any previously identified effects beyond those disclosed
and analyzed in the Downtown Station Area Specific Plan Program EIR certified by City
Council nor would any new mitigation measures be required; and,
WHEREAS, on January 21, 2016 the Planning Commission for the City of South San
Francisco held a lawfully noticed public hearing, solicited public comment and considered the
proposed Development Agreement, took public testimony, and made a recommendation that the
City Council adopt the Development Agreement.
NOW, THEREFORE, BE IT ORDAINED that based on the entirety of the Record before
it, as described below, the City Council of the City of South San Francisco does hereby
ORDAIN as follows:
SECTION I. FINDINGS
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 Program EIR; the Downtown Station Area Specific Plan and the
Downtown Station Area Specific Plan EIR; the South San Francisco Municipal Code; the Project
applications; the Project Plans, as prepared by TCA Architects, dated December 7, 2015; the
Development Agreement, the Environmental Consistency Analysis, as prepared by City staff,
dated February 10, 2016 including all appendices thereto; all site plans, and all reports, minutes,
and public testimony submitted as part of the Planning Commission's duly noticed January 21,
2016 meeting; all reports, minutes, and public testimony submitted as part of the City Council's
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duly noticed February 10, 2016 meeting 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:
I. General Findings.
The foregoing recitals are true and correct and made a part of this Ordinance;
1. The Development Agreement, attached hereto as Attachment 1, is incorporated herein
by reference and made a part of this Ordinance as if set forth fully herein.
2. 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,
Sailesh Mehra.
3. Based upon the testimony and information presented at the hearing and upon review
and consideration of the environmental documentation provided, including but not
limited to the Environmental Consistency Analysis, as prepared by City staff, dated
February 10, 2016, the City Council, exercising its independent judgment and
analysis, finds that the Project is consistent with the analysis presented in the
certified Downtown Station Area Specific Plan Program EIR, and that the Project
would not result in any new significant environmental effects or a substantial increase
in the severity of any previously identified effects beyond those disclosed and
analyzed in the Downtown Station Area Specific Plan Program EIR certified by City
Council nor would new mitigation be required for the Project. This is supported by
the fact that, consistent with the Downtown Station Area Specific Plan EIR
Mitigation Monitoring and Reporting Program, the project prepared Toxic Air
Contaminants (TAC) and Green House Gas (GHG) Emissions Assessment, a Historic
Resources Analysis, an Updated Historic Evaluation, and a Traffic and Circulation
Analysis, all of which determined that the Project would not result in any new
impacts not adequately evaluated and addressed by the Downtown Station Area
Specific Plan Program EIR.
II. Development Agreement Findings
1. The Development Agreement, as proposed, is consistent with the objectives, policies,
general land uses and programs specified in the General Plan and the Downtown
Station Area Specific Plan, both of which envision a high-density residential project
adjacent to the Caltrain commuter station that can revitalize underused parcels and
support economic activity in the Downtown 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.
2. The Development Agreement, as proposed, is compatible with the proposed high-
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density residential use authorized in and the regulations prescribed for the two land
use districts (Downtown Transit Core and Grand Avenue Core) in which the real
property is located and complies with all applicable zoning, subdivision, and building
regulations and with the guiding policies of the General Plan and Downtown Station
Area Specific Plan.
3. The Development Agreement states:
a. the duration of the Agreement shall be ten years, as specified in Section 2.2 of the
Agreement;
b. the permitted uses of the Project Site, with the exception of 309 Airport
Boulevard, shall include those uses listed as "permitted" in the Downtown Transit
Core zoning sub-district. Permitted uses for the parcel located at 309 Airport
Boulevard shall include those uses listed as "permitted" in the Grand Avenue
zoning sub-district, as specified in Section 6.2 of the Agreement;
c. the density and intensity of use of the Project Site shall be as set for in the Project
Approvals and, as and when they are issued, any subsequent approvals, as
specified in Section 6.2 of the Agreement;
d. the maximum height, bulk and size of the proposed buildings on the Project Site
shall be as set for in the Project Approvals and, as and when they are issued, any
subsequent approvals, as specified in Section 6.2 of the Agreement;
e. provisions for reservation or dedication of land for public purposes, the location
of public improvements, and the general location of public utilities shall be as set
for in the Project Approvals and, as and when they are issued, any subsequent
approvals, as specified in Section 6.2 of the Agreement;
SECTION II. APPROVAL OF DEVELOPMENT AGREEMENT
The City Council of the City of South San Francisco hereby:
1. Approves the Development Agreement (DA15-0003A) with Miller Cypress SSF,
LLC attached hereto as Attachment 1 and incorporated herein by reference; and
2. Authorizes the City Manager to enter into and execute the Development Agreement
on behalf of the City Council in substantially the same form as attached hereto as
Attachment 1; to make any revisions, amendments, or modifications, subject to the
approval of the City Attorney, deemed necessary to carry out the intent of this
Ordinance and which do not materially alter or increase the City's obligations
thereunder.
SECTION III. 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
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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 IV. 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 10th day of February, 2016.
Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the
City Council held the 24th day of February, 2016 by the following vote:
AYES: Councilmembers Karyl Matsumoto, Richard A. Garbarino, and Liza Normandy
Vice Mayor Pradeep Gupta and Mayor Mark N. Addiego
NOES: None
ABSTAIN: None
ABSENT: None
T .000
to M. -llii y Clerk
As Mayor of the City of South San Francisco, I do hereby approve the foregoing
ordinance this 24th day of February, 2016.
WM rk Addiego, Mayor
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ATTACHMENT 1
Development Agreement
2599090.1
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
(Space Above This Line Reserved For Recorder's Use)
This instrument is exempt from recording fees pursuant to Government Code section 27383.
Documentary Transfer Tax is $0.00(exempt per Revenue&Taxation Code section 11922, Transfer to
Municipality).
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO
AND
MILLER CYPRESS SSF, LLC
309 AIRPORT BOULEVARD
315 AIRPORT BOULEVARD
401-421 AIRPORT BOULEVARD
405 CYPRESS AVENUE
216 MILLER AVENUE
SOUTH SAN FRANCISCO, CALIFORNIA
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of January ,
2016 by and between Miller Cypress SSF, LLC, a Delaware limited liability company
("Developer"), and the City of South San Francisco ("City"),pursuant to California Government
Code ("Government Code") sections 65864 et seq. Miller Cypress SSF, LLC and the City are
sometimes collectively referred to herein as "Parties."
RECITALS
A. To strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the Legislature of the
State of California enacted California Government Code sections 65864 et seq. (the
"Development Agreements Statute"), which authorizes the City to enter into an agreement with
any person having a legal or equitable interest in real property for the development of such
property.
B. Pursuant to Government Code section 65865, City has adopted procedures and
requirements for the consideration of development agreements (South San Francisco Municipal
Code ("SSFMC") Chapter 19.60). This Agreement has been processed, considered, and
executed in accordance with such procedures and requirements.
C. Developer has, or will acquire pursuant to a purchase and sale agreement, a legal
and/or equitable interest in certain real property located on six parcels in the downtown area of
the City of South San Francisco, west of US 101 at 309 Airport Boulevard, 315 Airport
Boulevard, 401 Airport Boulevard, 411 Airport Boulevard, 421 Airport Boulevard, 405 Cypress
Avenue, and 216 Miller Avenue, in the central part of the Downtown Station Area Specific Plan
District, and specifically within the Downtown Transit Core and Grand Avenue Core zoning sub-
districts, consisting of 2.36 total acres with frontages on Airport Boulevard, Cypress Avenue,
and Miller Avenue, and as more particularly described and depicted in Exhibit A ("Project
Site").
D. The proposed Project ("Project") consists of removal of existing buildings and
construction at full buildout of two (2) new seven-story multi-unit residential buildings, a private
residential parking lot, and twelve(12) townhome units. The building at 401-421 Airport
Boulevard will contain 160 apartment homes in five residential levels over two garage levels (up
to 85 feet in height). The building at 309-315 Cypress Avenue will contain 100 apartment homes
in five residential levels over two garage levels (up to 72 feet in height). A private residential
parking lot will be built at 405 Cypress Avenue to support the apartment communities. After the
two apartment buildings are complete and fully leased, twelve for-sale townhomes will be built
at 216 Miller Avenue. The total proposed building area is approximately 300,000 square feet. A
total of approximately 347 parking spaces will provide parking for the commercial and
residential components of the project. Additionally, 26 short-term bicycle parking spaces and 73
secure bike rack spaces will be provided throughout the Project Site.
E. Development of the Project requires that the Developer obtain from the City the
following land use entitlements: Conditional Use Permit; Design Review; Modification to
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Private Storage and Building Height Zoning Standards; Parking Exemption to Reduce Provided
Parking by 25%; and a Development Agreement. The entitlements listed in this Recital E are
collectively referred to herein as the "Project Approvals." The Project Approvals are shown in
Exhibit B. The Project Site is located in the Downtown Transit Core (DTC) and Grand Avenue
Core (GAC) Zoning Sub-Districts and the Conditional Use Permit, Design Review, Waiver and
Modification, and Parking Exemption requests are in accordance with SSFMC Chapters 20.280,
20.330, 20.480, 20.490 & 20.510.
F. City has determined that the Project presents certain public benefits and
opportunities which are advanced by City and Developer entering into this Agreement. This
Agreement will, among other things, (1) reduce uncertainties in planning and provide for the
orderly development of the Project; (2)provide needed residential development along the Airport
Boulevard corridor; (3) mitigate any significant environmental impacts; (4)provide for and
generate substantial revenues for the City in the form of one time and annual fees and exactions
and other fiscal benefits; and (5) otherwise achieve the goals and purposes for which the
Development Agreement Statute was enacted.
G. In exchange for the benefits to City described in the preceding Recital, together
with the other public benefits that will result from the development of the Project, Developer will
receive by this Agreement assurance that it may proceed with the Project in accordance with the
"Applicable Law" (defined in section 6.3 below), and therefore desires to enter into this
Agreement.
H. On January 21, 201, following a duly noticed public hearing, the Planning
Commission adopted Resolution No. [XXXX]-2016, recommending that the City Council
approve this Agreement.
I. The City Council, after conducting a duly noticed public hearing, has found that
this Agreement is consistent with the General Plan and Zoning Ordinance and has conducted all
necessary proceedings in accordance with the City's rules and regulations for the approval of this
Agreement. In accordance with SSFMC section 19.60.120, the City Council, at a duly noticed
public hearing, adopted Ordinance No. [XXXX]-2015, approving and authorizing the execution
of this Agreement.
AGREEMENT
NOW, THEREFORE, the Parties,pursuant to the authority contained in Government Code
sections 65864 through 65869.5 and Chapter 19.60 of the South San Francisco Municipal Code
and in consideration of the mutual covenants and agreements contained herein, agree as follows:
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ARTICLE 1. DEFINITIONS
1.1 "Administrative Project Amendment" shall have that meaning set forth in Section 7.1
of this Agreement.
1.2 "Administrative Agreement Amendment" shall have that meaning set forth in
Section 7.2 of this Agreement.
1.3 "Agreement" shall mean this Development Agreement.
1.4 "Applicable Law" shall have that meaning set forth in Section 6.3 of this Agreement.
1.5 "Assessments" shall have that meaning set forth in Exhibit C.
1.6 "City" shall mean the City of South San Francisco.
1.7 "City Law" shall have that meaning set forth in Section 6.5 of this Agreement.
1.8 "Claims" shall have that meaning set forth in Section 6.10 of this Agreement.
1.9 "Deficiencies" shall have that meaning set forth in Section 9.2 of this Agreement.
1.10"Developer" shall mean Miller Cypress SSF, LLC.
1.11"Development Agreements Statute" shall have that meaning set forth in Recital A of
this Agreement.
1.12"Development Fees" shall have that meaning set forth in Section 3.2 of this Agreement.
1.13"Effective Date" shall have that meaning set forth in Section 2.1 of this Agreement.
1.14"Indemnitees" shall have that meaning set forth in Section 6.10 of this Agreement.
1.15"Judgment" shall have that meaning set forth in Section 9.2 of this Agreement.
1.16"Parties" shall mean the Developer and City, collectively.
1.17"Periodic Review" shall have that meaning set forth in Section 10.5 of this Agreement.
1.18"Prevailing Wage Laws" shall have that meaning set forth in Section 6.10 of this
Agreement.
1.19"Project" shall have that meaning set forth in Recital D of this Agreement.
1.20"Project Approvals" shall have that meaning set forth in Recital E of this Agreement.
1.21"Project Site" shall have that meaning set forth in Recital C of this Agreement.
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1.22"Purchase and Sale Agreement and Joint Escrow Instructions Between South San
Francisco Successor Agency and Miller Cypress SSF,LLC" or"PSA" is defined as
the "Purchase and Sale Agreement and Joint Escrow Instructions between the South San
Francisco Successor Agency and Miller Cypress SSF, LLC dated and approved
pursuant to South San Francisco Oversight Board Resolution No. .
1.23"Subsequent Approvals" shall mean those certain other land use approvals,
entitlements, and permits in addition to the Project Approvals that are necessary or
desirable for the Project. In particular, for example, the parties contemplate that
Developer may, at its election, seek approvals for the following: amendments of the
Project Approvals, design review approvals, unless determined not required pursuant to
the further provisions of this Agreement, improvement agreements, grading permits,
building permits, lot line adjustments, sewer and water connection permits, certificates
of occupancy, subdivision maps, rezonings, development agreements, use permits, sign
permits and any amendments to, or repealing of, any of the foregoing.
1.24"Tax"and "Taxes" shall not include any generally applicable City Business License
Tax or locally imposed Sales Tax.
1.25"Term" shall have that meaning set forth in Section 2.2 of this Agreement.
ARTICLE 2. EFFECTIVE DATE AND TERM
2.1 Effective Date. This Agreement shall become effective upon the later of the date the
ordinance approving this Agreement becomes effective or the date upon which the
Purchase and Sale Agreement and Joint Escrow Instructions between the South San
Francisco Successor Agency and Developer becomes effective. ("Effective Date"). In
the event the PSA is not effective by March 31, 2016, this Agreement shall terminate
and have no further force of effect unless the Developer and City Manager have
mutually agreed in writing to extend the date.
2.2 Term. The term of this Agreement ("Term") shall commence upon the Effective Date
and continue for a period of ten (10) years.
ARTICLE 3. OBLIGATIONS OF DEVELOPER
3.1 Obligations of Developer Generally. The Parties acknowledge and agree that the City's
agreement to perform and abide by the covenants and obligations of City set forth in this
Agreement is a material consideration for Developer's agreement to perform and abide
by its long term covenants and obligations, as set forth herein. The parties acknowledge
that many of Developer's long term obligations set forth in this Agreement are in
addition to Developer's agreement to perform all the applicable mitigation measures
identified in the Downtown Station Area Specific Plan("DSASP") Environmental
Impact Report ("EIR").
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3.2 City Fees.
(a) Developer shall pay those processing, inspection and plan checking fees and
charges required by the City for processing applications and requests for
Subsequent Approvals under the applicable non-discriminatory regulations in
effect at the time such applications and requests are submitted to the City.
(b) Consistent with the terms of the Agreement, City shall have the right to impose
only such development fees ("Development Fees") as have been adopted by
City as of the Effective Date of this Agreement, or as to which City has
initiated formal studies and proposals pursuant to City Council action, and
which are identified in Exhibit C. This shall not prohibit City from imposing
on Developer any fee or obligation that is imposed by a regional agency in
accordance with state or federal obligations and required to be implemented by
City. Development Fees shall be due upon issuance of building permits or
certificates of occupancy for the Project, as may be required under the adopting
ordinance for such Development Fees, except as otherwise provided under the
Agreement or the Project Approvals.
3.3 Mitigation Measures. Developer shall comply with the Mitigation Measures identified
and approved in the Downtown Station Area Plan EIR (see also the Environmental
Consistency Analysis ("ECA") for the Project), in accordance with the California
Environmental Quality Act ("CEQA") or other law.
3.4 Compliance with Terms of the Purchase and Sale Agreement. Developer shall comply
with all terms of the Purchase and Sale Agreement and Joint Escrow Instructions entered
into between Developer and the South San Francisco Successor Agency and approved
by Oversight Board Resolution No . A material default by Developer
under the PSA shall be a material default under this Agreement. In the event the PSA is
terminated under its terms prior to the transfer of real property to the Developer, this
Agreement shall terminate and have no further force or effect.
3.5 Electric Charging Stations. Developer shall provide electric charging stations in a
minimum of two percent of the total parking spaces provided in the parking garages
constructed on Parcels A and D and shall also install all necessary conduit for 35
additional electric vehicle charging stations, with the final location of the installed
stations and conduit subject to approval by the Chief Planner.
ARTICLE 4. OBLIGATIONS OF CITY
4.1 Obligations of City Generally. The parties acknowledge and agree that Developer's
agreement to perform and abide by its covenants and obligations set forth in this
Agreement, including Developer's decision to process the siting of the Project in the
City, is a material consideration for City's agreement to perform and abide by the long
term covenants and obligations of City, as set forth herein.
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4.2 Protection of Vested Rights. To the maximum extent permitted by law, City shall take
any and all actions as may be necessary or appropriate to ensure that the vested rights
provided by this Agreement can be enjoyed by Developer and to prevent any City Law,
as defined above, from invalidating or prevailing over all or any part of this Agreement.
City shall cooperate with Developer and shall undertake such actions as may be
necessary to ensure this Agreement remains in full force and effect. Except as
authorized in Section 6.9, City shall not support, adopt, or enact any City Law, or take
any other action which would violate the express provisions or intent of the Project
Approvals or the Subsequent Approvals.
4.3 Availability of Public Services. To the maximum extent permitted by law and consistent
with its authority, City shall assist Developer in reserving such capacity for sewer and
water services as may be necessary to serve the Project.
4.4 Developer's Right to Rebuild. City agrees that Developer may renovate or rebuild all or
any part of the Project within the Term of this Agreement should it become necessary
due to damage or destruction. Any such renovation or rebuilding shall be subject to the
square footage and height limitations vested by this Agreement, and shall comply with
the Project Approvals, the building codes existing at the time of such rebuilding or
reconstruction, and the requirements of CEQA.
4.5 Expedited Plan Check Process. The City agrees to provide an expedited plan check
process for the approval of Project drawings consistent with its existing practices for
expedited plan checks. The City shall use reasonable efforts to provide such plan
checks within 3 weeks of a submittal that meets the requirements of Section 5.2. The
City acknowledges that the City's timely processing of Subsequent Approvals and plan
checks is essential to the Developer's ability to achieve the schedule under the PSA.
ARTICLE 5. COOPERATION - IMPLEMENTATION
5.1 Processing Application for Subsequent Approvals. By approving the Project Approvals,
City has made a final policy decision that the Project is in the best interests of the public
health, safety and general welfare. Accordingly, City shall not use its discretionary
authority in considering any application for a Subsequent Approval to change the policy
decisions reflected by the Project Approvals or otherwise to prevent or delay
development of the Project as set forth in the Project Approvals. Instead, the Subsequent
Approvals shall be deemed to be tools to implement those final policy decisions.
5.2 Timely Submittals By Developer. Developer acknowledges that City cannot expedite
processing Subsequent Approvals until Developer submits complete applications on a
timely basis. Developer shall use its best efforts to (i) provide to City in a timely manner
any and all documents, applications, plans, and other information necessary for City to
carry out its obligations hereunder; and (ii) cause Developer's planners, engineers, and
all other consultants to provide to City in a timely manner all such documents,
applications, plans and other necessary required materials as set forth in the Applicable
Law. It is the express intent of Developer and City to cooperate and diligently work to
obtain any and all Subsequent Approvals.
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5.3 Timely Processing By City. Upon submission by Developer of all appropriate
applications and processing fees for any Subsequent Approval, City shall promptly and
diligently commence and complete all steps necessary to act on the Subsequent
Approval application including, without limitation: (i)providing at Developer's expense
and subject to Developer's request and prior approval, reasonable overtime staff
assistance and/or staff consultants for planning and processing of each Subsequent
Approval application; (ii) if legally required, providing notice and holding public
hearings; and (iii) acting on any such Subsequent Approval application. City shall
ensure that adequate staff is available, and shall authorize overtime staff assistance as
may be necessary, to timely process such Subsequent Approval application.
5.4 Denial of Subsequent Approval Application. The City may deny an application for a
Subsequent Approval only if such application does not comply with the Agreement or
Applicable Law (as defined below) or with any state or federal law, regulations,plans, or
policies as set forth in Section 6.9.
5.5 Other Government Permits. At Developer's sole discretion and in accordance with
Developer's construction schedule, Developer shall apply for such other permits and
approvals as may be required by other governmental or quasi-governmental entities in
connection with the development of, or the provision of services to, the Project. City
shall cooperate with Developer in its efforts to obtain such permits and approvals and
shall, from time to time, at the request of Developer, use its reasonable efforts to assist
Developer to ensure the timely availability of such permits and approvals.
5.6 Assessment Districts or Other Funding Mechanisms.
(a) Existing Fees. The Parties understand and agree that as of the Effective Date
the fees, exactions, and payments listed in Exhibit C are the only City fees and
exactions. Except for those fees and exactions listed in Exhibit C, City is
unaware of any pending efforts to initiate, or consider applications for new or
increased fees, exactions, or assessments covering the Project Site, or any
portion thereof.
(b) Future Fees, Taxes, and Assessments. City understands that long term
assurances by City concerning fees, taxes and assessments were a material
consideration for Developer agreeing to enter this Agreement and to pay long
term fees, taxes and assessments described in this Agreement. City shall retain
the ability to initiate or process applications for the formation of new
assessment districts covering all or any portion of the Project Site.
Notwithstanding the foregoing, Developer retains all its rights to oppose the
formation or proposed assessment of any new assessment district or increased
assessment. In the event an assessment district is lawfully formed to provide
funding for services, improvements, maintenance or facilities which are
substantially the same as those services, improvements, maintenance or
facilities being funded by the fees or assessments to be paid by Developer
under the Project Approvals or this Agreement, such fees or assessments to be
paid by Developer shall be subject to reduction/credit in an amount equal to
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Developer's new or increased assessment under the assessment district.
Alternatively, the new assessment district shall reduce/credit Developer's new
assessment in an amount equal to such fees or assessments to be paid by
Developer under the Project Approvals or this Agreement.
ARTICLE 6. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
6.1 Vested Right to Develop. Developer shall have a vested right to develop the Project on
the Project Site in accordance with the terms and conditions of this Agreement. Nothing
in this section shall be deemed to eliminate or diminish the requirement of Developer to
obtain any required Subsequent Approvals.
6.2 Permitted Uses Vested by This Agreement. The permitted uses of the Project Site; the
density and intensity of use of the Project Site; the maximum height,bulk, and size of
proposed buildings; provisions for reservation or dedication of land for public purposes
and the location of public improvements; the general location of public utilities; and
other terms and conditions of development applicable to the Project, shall be as set forth
in the Project Approvals and, as and when they are issued (but not in limitation of any
right to develop as set forth in the Project Approvals), the Subsequent Approvals,
provided, however, that no further design review or other discretionary approvals or
public hearings shall be required except for review of minor changes to the Project
Approvals by the Chief Planner as provided in this Agreement.
Permitted uses for all Project parcels, with the exception of the parcel located at 309
Airport Boulevard, shall include, without limitation, those uses listed as "permitted" in
the Downtown Transit Core zoning sub-district. Permitted uses for the parcel located at
309 Airport Boulevard shall include, without limitation those uses listed as "permitted"
in the Grand Avenue Core zoning sub-district.
6.3 Applicable Law. The rules, regulations, official policies, standards and specifications
applicable to the Project (the"Applicable Law") shall be those set forth in this
Agreement and the Project Approvals, and, with respect to matters not addressed by this
Agreement or the Project Approvals, those rules, regulations, official policies, standards
and specifications (including City ordinances and resolutions) governing permitted uses,
building locations, timing of construction, densities, design, heights, fees, exactions, and
taxes in force and effect on the Effective Date of this Agreement.
6.4 Uniform Codes. City may apply to the Project Site, at any time during the Term, then
current Uniform Building Code and other uniform construction codes, and City's then
current design and construction standards for road and storm drain facilities, provided
any such uniform code or standard has been adopted and uniformly applied by City on a
citywide basis and provided that no such code or standard is adopted for the purpose of
preventing or otherwise limiting construction of all or any part of the Project.
6.5 No Conflicting Enactments. Except as authorized in Section 6.9, City shall not impose
on the Project (whether by action of the City Council or by initiative, referendum or
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other means) any ordinance,resolution, rule, regulation, standard, directive, condition or
other measure (each individually, a"City Law")that is in conflict with Applicable Law
or this Agreement or that reduces the development rights or assurances provided by this
Agreement. Without limiting the generality of the foregoing, any City Law shall be
deemed to conflict with Applicable Law or this Agreement or reduce the development
rights provided hereby if it would accomplish any of the following results, either by
specific reference to the Project or as part of a general enactment which applies to or
affects the Project:
(a) Change any land use designation or permitted use of the Project Site;
(b) Limit or control the availability of public utilities, services, or facilities, or any
privileges or rights to public utilities, services, or facilities (for example, water
rights, water connections or sewage capacity rights, sewer connections, etc.) for
the Project;
(c) Limit or control the location of buildings, structures, grading, or other
improvements of the Project in a manner that is inconsistent with or more
restrictive than the limitations included in the Project Approvals or the
Subsequent Approvals (as and when they are issued);
(d) Limit or control the rate, timing,phasing, or sequencing of the approval,
development or construction of all or any part of the Project in any manner;
(e) Result in Developer having to substantially delay construction of the Project or
require the issuance of additional permits or approvals by the City other than
those required by Applicable Law;
(f) Establish, enact, increase, or impose against the Project or Project Site any fees,
taxes (including without limitation general, special and excise taxes but
excluding any increased local sales tax or increases city business license tax),
assessments, liens or other monetary obligations (including generating
demolition permit fees, encroachment permit and grading permit fees) other
than those specifically permitted by this Agreement or other connection fees
imposed by third party utilities;
(g) Impose against the Project any condition, dedication or other exaction not
specifically authorized by Applicable Law; or
(h) Limit the processing or procuring of applications and approvals of Subsequent
Approvals.
6.6 Initiatives and Referenda.
(a) If any City Law is enacted or imposed by initiative or referendum, or by the
City Council directly or indirectly in connection with any proposed initiative or
referendum, which City Law would conflict with Applicable Law or this
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Agreement or reduce the development rights provided by this Agreement, such
Law shall not apply to the Project.
(b) Except as authorized in Section 6.9, without limiting the generality of any of
the foregoing, no moratorium or other limitation (whether relating to the rate,
timing,phasing or sequencing of development) affecting subdivision maps,
building permits or other entitlements to use that are approved or to be
approved, issued or granted within the City, or portions of the City, shall apply
to the Project.
(c) To the maximum extent permitted by law, City shall prevent any City Law
from invalidating or prevailing over all or any part of this Agreement, and City
shall cooperate with Developer and shall undertake such actions as may be
necessary to ensure this Agreement remains in full force and effect.
(d) Developer reserves the right to challenge in court any City Law that would
conflict with Applicable Law or this Agreement or reduce the development
rights provided by this Agreement.
6.7 Environmental Mitigation. The parties understand that the DSASP EIR and the ECA
were intended to be used in connection with each of the Project Approvals and
Subsequent Approvals needed for the Project. Consistent with the CEQA policies and
requirements applicable to the DSASP EIR and the ECA, City agrees to use the DSASP
EIR and ECA in connection with the processing of any Subsequent Approval to the
maximum extent allowed by law and not to impose on the Project any mitigation
measures or conditions of approval other than those specifically imposed by the Project
Approvals, ECA, and DSASP EIR, or specifically required by CEQA or other
Applicable Law.
6.8 Life of Subdivision Maps, Development Approvals, and Permits. The term of any
subdivision map or any other map, permit,rezoning, or other land use entitlement
approved as a Project Approval or Subsequent Approval shall automatically be extended
for the longer of the duration of this Agreement (including any extensions) or the term
otherwise applicable to such Project Approval or Subsequent Approval if this Agreement
is no longer in effect. The term of this Agreement and any subdivision map or other
Project Approval or Subsequent Approval shall not include any period of time during
which a development moratorium (including,but not limited to, a water or sewer
moratorium or water and sewer moratorium) or the actions of other public agencies that
regulate land use, development or the provision of services to the land, prevents,
prohibits or delays the construction of the Project or a lawsuit involving any such
development approvals or permits is pending.
6.9 State and Federal Law. As provided in Government Code section 65869.5, this
Agreement shall not preclude the application to the Project of changes in laws,
regulations, plans or policies, to the extent that such changes are specifically mandated
and required by changes in state or federal laws or regulations. Not in limitation of the
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foregoing, nothing in this Agreement shall preclude City from imposing on Developer
any fee specifically mandated and required by state or federal laws and regulations.
6.10Prevailing Wage. To the full extent required by all applicable state and federal laws,
rules and regulations, Developer and its contractors and agents shall comply with
California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto
("Prevailing Wage Laws"), and shall be responsible for carrying out the requirements
of such provisions. If applicable, Developer shall submit to City a plan for monitoring
payment of prevailing wages and shall implement such plan at Developer's expense.
To the fullest extent permitted by law, Developer shall indemnify, defend (with counsel
approved by City) and hold the City, and their respective elected and appointed officers,
officials, employees, agents, consultants, and contractors (collectively, the
"Indemnitees")harmless from and against all liability, loss, cost, expense (including
without limitation attorneys' fees and costs of litigation), claim, demand, action, suit,
judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of
the foregoing collectively "Claims")which directly or indirectly, in whole or in part, are
caused by, arise in connection with, result from, relate to, or are alleged to be caused by,
arise in connection with, or relate to, the payment or requirement of payment of
prevailing wages (including without limitation, all claims that may be made by
contractors, subcontractors or other third party claimants pursuant to Labor Code
Sections 1726 and 1781), the failure to comply with any state or federal labor laws,
regulations or standards in connection with this Agreement, including but not limited to
the Prevailing Wage Laws, or any act or omission of Developer related to this
Agreement with respect to the payment or requirement of payment of prevailing wages,
whether or not any insurance policies shall have been determined to be applicable to any
such Claims. It is further agreed that the City does not and shall not waive any rights
against Developer which they may have by reason of this indemnity and hold harmless
agreement because of the acceptance by the City, or Developer's deposit with the City of
any of the insurance policies described in this Agreement. The provisions of this Section
6.10 shall survive the expiration or earlier termination of this Agreement and the
issuance of a Certificate of Completion for the Project. Developer's indemnification
obligations set forth in this section shall not apply to Claims arising solely from the gross
negligence or willful misconduct of the Indemnitees.
6.11 Timing and Review of Project Construction and Completion.
(a) The Project consists of two phases. Phasing will occur in such a manner as to
always preserve the potential for 272 residential units on the site during the
term of the Agreement.
(i) Phase 1 shall include:
• Two seven-story residential buildings on Parcels A& D, with a
minimum of 260 apartment units between them and two levels of
parking garages in each building.
• A parking lot on Parcel B at 405 Cypress Avenue.
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• All site improvements and design features as shown on the Project
Approvals for Phase 1.
(ii) Phase 2 shall include:
• Twelve(12) For-Sale Townhomes at 216 Miller Avenue.
• All site improvements and design features as shown on the Project
Approvals for Phase 2.
6.12No Housing Restrictions on Rental Residential Component. City acknowledges and
agrees that the residential component of the Project, other than the twelve townhomes, is
proposed for, approved as, and will be constructed as market-rate rental housing. City
represents and warrants that no inclusionary housing, occupancy limitation or control,
and no rent control requirement applies to the Project so long as the residential
component is comprised solely of rental housing. City covenants that it will not adopt or
attempt to apply any such restrictions, requirements or controls to the Project, other than
the twelve townhomes, so long as the residential component is solely comprised of rental
housing.
ARTICLE 7. AMENDMENT
7.1 To the extent permitted by state and federal law, any Project Approval or Subsequent
Approval may, from time to time,be amended or modified in the following manner:
(a) Administrative Project Amendments. Upon the written request of Developer
for an amendment or modification to a Project Approval or Subsequent
Approval, the Chief Planner or his/her designee shall determine: (i) whether
the requested amendment or modification is minor when considered in light of
the Project as a whole; and (ii) whether the requested amendment or
modification is consistent with this Agreement and Applicable Law. If the
Chief Planner or his/her designee finds that the proposed amendment or
modification is minor, consistent with this Agreement and Applicable Law, and
will result in no new significant impacts not addressed and mitigated in the
ECA or DSASP EIR, the amendment shall be determined to be an
"Administrative Project Amendment" and the Chief Planner or his designee
may, except to the extent otherwise required by law, approve the
Administrative Project Amendment without notice and public hearing. Without
limiting the generality of the foregoing, lot line adjustments,minor alterations
in vehicle circulation patterns or vehicle access points, location of parking stalls
on the site, number of required parking stalls if city development standards
allow, substitutions of comparable landscaping for any landscaping shown on
any final development plan or landscape plan, variations in the location of
structures that do not substantially alter the design concepts of the Project,
variations in the residential unit mix (number of one, two or three bedroom
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units), location or installation of utilities and other infrastructure connections or
facilities that do not substantially alter the design concepts of the Project, and
minor adjustments to the Project Site diagram or Project Site legal description
shall be treated as Administrative Project Amendments.
(b) Non-Administrative Project Amendments. Any request by Developer for an
amendment or modification to a Project Approval or Subsequent Approval
which is determined not to be an Administrative Project Amendment as set
forth above shall be subject to review, consideration and action pursuant to the
Applicable Law and this Agreement.
7.2 Amendment of this Agreement. This Agreement may be amended from time to time, in
whole or in part,by mutual written consent of the parties hereto or their successors in
interest, as follows:
(a) Administrative Agreement Amendments. Any amendment to this Agreement
which does not substantially affect (i) the Term of this Agreement,
(ii) permitted uses of the Project Site, (iii) provisions for the reservation or
dedication of land, (iv) conditions, terms, restrictions, or requirements for
subsequent discretionary actions, (v) the density or intensity of use of the
Project Site or the maximum height or size of proposed buildings or
(vi) monetary contributions by Developer, shall be considered an
"Administrative Agreement Amendment" and shall not, except to the extent
otherwise required by law, require notice or public hearing before the parties
may execute an amendment hereto. Such amendment may be approved by City
resolution.
(b) Other Agreement Amendments. Any amendment to this Agreement other than
an Administrative Agreement Amendment shall be subject to recommendation
by the Planning Commission (by advisory resolution) and approval by the City
Council (by ordinance) following a duly noticed public hearing before the
Planning Commission and City Council, consistent with Government Code
sections 65867 and 65867.5.
(c) Amendment Exemptions. No amendment of a Project Approval or Subsequent
Approval, or a Subsequent Approval shall require an amendment to this
Agreement. Instead, any such matter automatically shall be deemed to be
incorporated into the Project and vested under this Agreement.
ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE
8.1 Assignment and Transfer. Developer may transfer or assign all or any portion of its
interests, rights, or obligations under the Agreement and the Project approvals to third
parties acquiring an interest or estate in the Project or any portion thereof including,
without limitation, purchasers or lessees of lots,parcels, or facilities. Prior to the
issuance of a certificate of occupancy for all or any portion of the Property, Developer
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will seek City's prior written consent to any transfer, which consent will not be
unreasonably withheld or delayed. City may refuse to give consent only if, in light of the
proposed transferee's reputation and financial resources, such transferee would not, in
City's reasonable opinion, be able to perform the obligations proposed to be assumed by
such transferee. Such determination will be made by the City Manager and will be
appealable by Developer to the City Council.
Notwithstanding any other provision of this Agreement to the contrary, each of
following Transfers are permitted and shall not require City consent under this Section
8.1:
(a) Any transfer for financing purposes to secure the funds necessary for construction
and/or permanent financing of the Project;
(b) An assignment of this Agreement to an Affiliate of Developer;
(c) The sale of one or more of the completed residential units to an occupant thereof;
(d) Transfers of common area to a homeowners or property owners association; or
(e) Dedications and grants of easements and rights of way required in accordance
with the Project Approvals.
For the purposes of this Section 8.1, "Affiliate of Developer"means an entity or person
that is directly or indirectly controlling, controlled by, or under common control with
Developer. For the purposes of this definition, "control"means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of
an entity or a person, whether through the ownership of voting securities,by contract, or
otherwise, and the terms "controlling" and"controlled"have the meanings correlative to
the foregoing
ARTICLE 9. COOPERATION IN THE EVENT OF LEGAL CHALLENGE
9.1 Cooperation. In the event of any administrative, legal, or equitable action or other
proceeding instituted by any person not a party to the Agreement challenging the validity
of any provision of the Agreement or any Project approval, the parties will cooperate in
defending such action or proceeding. City shall promptly notify Developer of any such
action against City. If City fails promptly to notify Developer of any legal action against
City or if City fails to cooperate in the defense, Developer will not thereafter be
responsible for City's defense. The parties will use best efforts to select mutually
agreeable legal counsel to defend such action, and Developer will pay compensation for
such legal counsel (including City Attorney time and overhead for the defense of such
action),but will exclude other City staff overhead costs and normal day-to-day business
expenses incurred by City. Developer's obligation to pay for legal counsel will extend to
fees incurred on appeal. In the event City and Developer are unable to select mutually
agreeable legal counsel to defend such action or proceeding, each party may select its
own legal counsel and Developer will pay its and the City's legal fees and costs.
Developer shall reimburse the City for all reasonable court costs and attorneys' fees
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expended by the City in defense of any such action or other proceeding or payable to any
prevailing plaintiff/petitioner.
9.2 Reapproval. If, as a result of any administrative, legal, or equitable action or other
proceeding, all or any portion of the Agreement or the Project approvals are set aside or
otherwise made ineffective by any judgment in such action or proceeding ("Judgment"),
based on procedural, substantive or other deficiencies ("Deficiencies"), the parties will
use their respective best efforts to sustain and reenact or readopt the Agreement, and/or
the Project approvals, that the Deficiencies related to,unless the Parties mutually agree
in writing to act otherwise:
(a) If any Judgment requires reconsideration or consideration by City of the
Agreement or any Project approval, then the City will consider or reconsider
that matter in a manner consistent with the intent of the Agreement and with
Applicable Law. If any such Judgment invalidates or otherwise makes
ineffective all or any portion of the Agreement or Project approval, then the
parties will cooperate and will cure any Deficiencies identified in the Judgment
or upon which the Judgment is based in a manner consistent with the intent of
the Agreement and with Applicable Law. City will then consider readopting or
reenacting the Agreement, or the Project approval, or any portion thereof, to
which the Deficiencies related.
(b) Acting in a manner consistent with the intent of the Agreement includes,
but is not limited to,recognizing that the parties intend that Developer may
develop the Project as described in the Agreement, and adopting such
ordinances, resolutions, and other enactments as are necessary to readopt
or reenact all or any portion of the Agreement or Project approvals without
contravening the Judgment.
ARTICLE 10. DEFAULT; REMEDIES; TERMINATION
10.1 Defaults. Any failure by either party to perform any term or provision of the Agreement,
which failure continues uncured for a period of thirty(30) days following written notice
of such failure from the other party(unless such period is extended by mutual written
consent), will constitute a default under the Agreement. Any notice given will specify
the nature of the alleged failure and, where appropriate, the manner in which said failure
satisfactorily may be cured. If the nature of the alleged failure is such that it cannot
reasonably be cured within such 30-day period, then the commencement of the cure
within such time period, and the diligent prosecution to completion of the cure
thereafter, will be deemed to be a cure within such 30-day period. Upon the occurrence
of a default under the Agreement, the non-defaulting party may institute legal
proceedings to enforce the terms of the Agreement or, in the event of a material default,
terminate the Agreement. If the default is cured, then no default will exist and the
noticing party shall take no further action.
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10.2 Termination. If City elects to consider terminating the Agreement due to a material
default of Developer,then City will give a notice of intent to terminate the Agreement
and the matter will be scheduled for consideration and review by the City Council at a
duly noticed and conducted public hearing. Developer will have the right to offer written
and oral evidence prior to or at the time of said public hearings. If the City Council
determines that a material default has occurred and is continuing, and elects to terminate
the Agreement, City will give written notice of termination of the Agreement to
Developer by certified mail and the Agreement will thereby be terminated sixty(60)
days thereafter.
10.3 Enforced Delay; Extension of Time of Performance. Subject to the limitations set forth
below, performance by either party hereunder shall not be deemed to be in default, and
all performance and other dates specified in this Agreement shall be extended, where
delays are due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; governmental restrictions or priority;
litigation and arbitration, including court delays; legal challenges to this Agreement, the
PSA, the Project Approvals, or any other approval required for the Project or any
initiatives or referenda regarding the same; environmental conditions,pre-existing or
discovered, delaying the construction or development of the Property or any portion
thereof; unusually severe weather but only to the extent that such weather or its effects
(including, without limitation, dry out time) result in delays that cumulatively exceed
thirty(30) days for every winter season occurring after commencement of construction
of the Project; acts or omissions of the other party; or acts or failures to act of any public
or governmental agency or entity(except that acts or failures to act of City shall not
excuse performance by City); moratorium; or a Severe Economic Recession (each a
"Force Majeure Delay"). An extension of time for any such cause shall be for the period
of the enforced delay and shall commence to run from the time of the commencement of
the cause, if Notice by the party claiming such extension is sent to the other party within
sixty(60) days of the commencement of the cause. If Notice is sent after such sixty(60)
day period, then the extension shall commence to run no sooner than sixty (60) days
prior to the giving of such Notice. Times of performance under this Agreement may
also be extended in writing by the mutual agreement of City and Developer.
Developer's inability or failure to obtain financing or otherwise timely satisfy shall not
be deemed to be a cause outside the reasonable control of the Developer and shall not be
the basis for an excused delay unless such inability, failure or delay is a direct result of a
Severe Economic Recession. "Severe Economic Recession"means a decline in the
monetary value of all finished goods and services produced in the United States, as
measured by initial quarterly estimates of US Gross Domestic Project("GDP")
published by the US Department of Commerce Bureau of Economic Analysis (and not
BEA's subsequent monthly revisions), lasting more than four(4) consecutive calendar
quarters. Any quarter of flat or positive GDP growth shall end the period of such Severe
Economic Recession
10.4Legal Action. Either party may institute legal action to cure, correct, or remedy any
default, enforce any covenant or agreement in the Agreement, enjoin any threatened or
attempted violation thereof, and enforce by specific performance the obligations and
16
rights of the parties thereto. The sole and exclusive remedy for any default or violation
of the Agreement will be specific performance. In any proceeding brought to enforce the
Agreement, the prevailing party will be entitled to recover from the unsuccessful party
all costs, expenses and reasonable attorney's fees incurred by the prevailing party in the
enforcement proceeding.
10.5Periodic Review.
(a) Conducting the Periodic Review. Throughout the Term of this Agreement, at
least once every twelve (12) months following the execution of this Agreement,
City shall review the extent of good-faith compliance by Developer with the
terms of this Agreement. This review("Periodic Review") shall be conducted
by the Chief Planner or his/her designee and shall be limited in scope to
compliance with the terms of this Agreement pursuant to Government Code
section 65865.1.
(b) Notice. At least five (5) days prior to the Periodic Review, and in the manner
prescribed in Section 11.9 of this Agreement, City shall deposit in the mail to
Developer a copy of any staff reports and documents to be used or relied upon
in conducting the review and, to the extent practical, related exhibits
concerning Developer's performance hereunder. Developer shall be permitted
an opportunity to respond to City's evaluation of Developer's performance,
either orally at a public hearing or in a written statement, at Developer's
election. Such response shall be made to the Chief Planner.
(c) Good Faith Compliance. During the Periodic Review, the Chief Planner shall
review Developer's good-faith compliance with the terms of this Agreement.
At the conclusion of the Periodic Review, the Chief Planner shall make written
findings and determinations, on the basis of substantial evidence, as to whether
or not Developer has complied in good faith with the terms and conditions of
this Agreement. The decision of the Chief Planner shall be appealable to the
City Council. If the Chief Planner finds and determines that Developer has not
complied with such terms and conditions, the Chief Planner may recommend to
the City Council that it terminate or modify this Agreement by giving notice of
its intention to do so, in the manner set forth in Government Code sections
65867 and 65868. The costs incurred by City in connection with the Periodic
Review process described herein shall be borne by Developer.
(d) Failure to Properly Conduct Periodic Review. If City fails, during any calendar
year, to either: (i) conduct the Periodic Review or(ii) notify Developer in
writing of City's determination, pursuant to a Periodic Review, as to
Developer's compliance with the terms of this Agreement and such failure
remains uncured as of December 31 of any year during the term of this
Agreement, such failure shall be conclusively deemed an approval by City of
Developer's compliance with the terms of this Agreement.
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(e) Written Notice of Compliance. With respect to any year for which Developer
has been determined or deemed to have complied with this Agreement, City
shall, within thirty(30) days following request by Developer, provide
Developer with a written notice of compliance, in recordable form, duly
executed and acknowledged by City. Developer shall have the right, in
Developer's sole discretion,to record such notice of compliance.
10.6California Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of California. Any action to enforce or interpret this Agreement shall
be filed and heard in the Superior Court of San Mateo County, California.
10.7Resolution of Disputes. With regard to any dispute involving development of the
Project, the resolution of which is not provided for by this Agreement or Applicable
Law, Developer shall, at City's request, meet with City. The parties to any such
meetings shall attempt in good faith to resolve any such disputes. Nothing in this
section 10.8 shall in any way be interpreted as requiring that Developer and City and/or
City's designee reach agreement with regard to those matters being addressed, nor shall
the outcome of these meetings be binding in any way on City or Developer unless
expressly agreed to by the parties to such meetings.
10.8Attorneys' Fees. In any legal action or other proceeding brought by either party to
enforce or interpret a provision of this Agreement, the prevailing party is entitled to
reasonable attorneys' fees and any other costs incurred in that proceeding in addition to
any other relief to which it is entitled.
10.9Hold Harmless. Developer shall hold City and its elected and appointed officers, agents,
employees, and representatives harmless from claims, costs, and liabilities for any
personal injury, death, or property damage which is a result of, or alleged to be the result
of, the construction of the Project, or of operations performed under this Agreement by
Developer or by Developer's contractors, subcontractors, agents or employees, whether
such operations were performed by Developer or any of Developer's contractors,
subcontractors, agents or employees. Nothing in this section shall be construed to mean
that Developer shall hold City harmless from any claims of personal injury, death or
property damage arising from, or alleged to arise from, any gross negligence or willful
misconduct on the part of City, its elected and appointed representatives, offices, agents
and employees.
ARTICLE 11. MISCELLANEOUS
11.1 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this
Agreement, and the introductory paragraph preceding the Recitals, are hereby
incorporated into this Agreement as if fully set forth herein.
11.2 No Agency. It is specifically understood and agreed to by and between the parties
hereto that: (i) the subject development is a private development; (ii) City has no
interest or responsibilities for, or duty to, third parties concerning any improvements
18
until such time, and only until such time, that City accepts the same pursuant to the
provisions of this Agreement or in connection with the various Project Approvals or
Subsequent Approvals; (iii) Developer shall have full power over and exclusive control
of the Project herein described, subject only to the limitations and obligations of
Developer under this Agreement, the Project Approvals, Subsequent Approvals, and
Applicable Law; and (iv) City and Developer hereby renounce the existence of any form
of agency relationship,joint venture or partnership between City and Developer and
agree that nothing contained herein or in any document executed in connection herewith
shall be construed as creating any such relationship between City and Developer.
11.3 Enforceability. City and Developer agree that unless this Agreement is amended or
terminated pursuant to the provisions of this Agreement, this Agreement shall be
enforceable by any party hereto notwithstanding any change hereafter enacted or
adopted (whether by ordinance, resolution, initiative, or any other means) in any
applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any
other land use ordinance or building ordinance,resolution or other rule, regulation or
policy adopted by City that changes, alters or amends the rules, regulations, and policies
applicable to the development of the Project Site at the time of the approval of this
Agreement as provided by Government Code section 65866.
11.4Severability. If any term or provision of this Agreement, or the application of any term
or provision of this Agreement to a particular situation, is held by a court of competent
jurisdiction to be invalid,void, or unenforceable, the remaining terms and provisions of
this Agreement, or the application of this Agreement to other situations, shall continue in
full force and effect unless amended or modified by mutual consent of the parties.
Notwithstanding the foregoing, if any material provision of this Agreement, or the
application of such provision to a particular situation, is held to be invalid, void or
unenforceable, either City or Developer may(in their sole and absolute discretion)
terminate this Agreement by providing written notice of such termination to the other
party.
11.5Other Necessary Acts. Each party shall execute and deliver to the other all such other
further instruments and documents as may be reasonably necessary to carry out the
Project Approvals, Subsequent Approvals and this Agreement and to provide and secure
to the other party the full and complete enjoyment of its rights and privileges hereunder.
11.6 Construction. Each reference in this Agreement to this Agreement or any of the Project
Approvals or Subsequent Approvals shall be deemed to refer to the Agreement, Project
Approval, or Subsequent Approval as it may be amended from time to time, whether or
not the particular reference refers to such possible amendment. This Agreement has
been reviewed and revised by legal counsel for both City and Developer, and no
presumption or rule that ambiguities shall be construed against the drafting party shall
apply to the interpretation or enforcement of this Agreement.
11.7Other Miscellaneous Terms. The singular shall include the plural; the masculine gender
shall include the feminine; "shall" is mandatory; "may" is permissive. If there is more
than one signer of this Agreement, the signer obligations are joint and several.
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11.8Covenants Running with the Land. All of the provisions contained in this Agreement
shall be binding upon the parties and their respective heirs, successors and assigns,
representatives, lessees, and all other persons acquiring all or a portion of the Project, or
any interest therein, whether by operation of law or in any manner whatsoever. All of
the provisions contained in this Agreement shall be enforceable as equitable servitudes
and shall constitute covenants running with the land pursuant to California law
including, without limitation, Civil Code section 1468. Each covenant herein to act or
refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs
with the Project Site, and is binding upon the owner of all or a portion of the Project Site
and each successive owner during its ownership of such property.
11.9Notices. Any notice or communication required hereunder between City or Developer
must be in writing, and may be given either personally,by telefacsimile (with original
forwarded by regular U.S. Mail), by registered or certified mail (return receipt
requested), or by Federal Express or other similar courier promising overnight delivery.
If personally delivered, a notice shall be deemed to have been given when delivered to
the party to whom it is addressed. If given by facsimile transmission, a notice or
communication shall be deemed to have been given and received upon actual physical
receipt of the entire document by the receiving party's facsimile machine. Notices
transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday,
Sunday, or holiday shall be deemed to have been given and received on the next normal
business day. If given by registered or certified mail, such notice or communication
shall be deemed to have been given and received on the first to occur of: (i) actual
receipt by any of the addressees designated below as the party to whom notices are to be
sent, or(ii) five (5) days after a registered or certified letter containing such notice,
properly addressed, with postage prepaid, is deposited in the United States mail. If given
by Federal Express or similar courier, a notice or communication shall be deemed to
have been given and received on the date delivered as shown on a receipt issued by the
courier. Any party hereto may at any time,by giving ten (10) days written notice to the
other party hereto, designate any other address in substitution of the address to which
such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
If to City, to: City of South San Francisco
400 Grand Avenue
Attn: City Manager
South San Francisco, CA 94080
Phone: (650) 877-8500
Fax: (650) 829-6609
With a Copy to: Meyers,Nave, Riback, Silver&Wilson
575 Market Street, Suite 2080
San Francisco, CA 94105
Attn: Jason S. Rosenberg, City Attorney
Phone: (415) 421-3711
Fax: (415) 421-3767
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If to Developer, to: Miller Cypress SSF, LLC
Sares-Regis Group of Northern California
901 Mariners Island Blvd., 7th Floor
Attn: Ken Busch
San Mateo, CA 94404
Phone: (650) 377-5805
Email: kbusch @srgnc.com
With Copies to: Holland& Knight
50 California Street, #2500
San Francisco, CA 94111
Attn: Tamsen Plume
Phone: (415) 743-9461
Email: tamsen.plume @hklaw.com
11.10 Entire Agreement, Counterparts And Exhibits. This Agreement is executed in two
(2) duplicate counterparts, each of which is deemed to be an original. This Agreement
consists of[XX] pages and three (3) exhibits which constitute in full, the final and
exclusive understanding and agreement of the parties and supersedes all negotiations or
previous agreements of the parties with respect to all or any part of the subject matter
hereof. All waivers of the provisions of this Agreement shall be in writing and signed by
the appropriate authorities of City and the Developer. The following exhibits are
attached to this Agreement and incorporated herein for all purposes:
Exhibit A: Description and Diagram of Project Site
Exhibit B: Existing Land Use Entitlements and Approvals
Exhibit C: Applicable Laws & City Fees, Exactions, and Payments
11.11 Recordation Of Development Agreement. Pursuant to Government Code
section 65868.5, no later than ten (10) days after City enters into this Agreement, the
City Clerk shall record an executed copy of this Agreement in the Official Records of
the County of San Mateo.
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IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and
City as of the day and year first above written.
CITY
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By:
Name:
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
DEVELOPER
MILLER CYPRESS SSF, LLC,
a Delaware Limited Liability Company
By:
Name:
Its:
2561624.1
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Exhibit A: Description and Diagram of Project Site
LEGAL DESCRIPTION
Real property in the City of South San Francisco,County of San Mateo,State of California,
described as follows:
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF SOUTH SAN FRANCISCO,
COUNTY OF SAN MATEO,STATE OF CALIFORNIA,BEING
[TO BE FILLED IN WHEN EXACT PROPERTY DESCRIPTION IS DETERMINED]
APN:
JPN:
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Exhibit B: Existing Land Use Entitlements and Approvals
[To be completed when the exact titles and resolution numbers for entitlements approved by the
Planning Commission and the City Council are known.]
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Exhibit C: Applicable Laws & City Fees, Exactions, and Payments
CURRENT SOUTH SAN FRANCISCO LAWS
Developer shall comply with the following City regulations and provisions applicable to
the Property as of the Effective Date(except as modified by this Agreement and the Project
Approvals).
1.1 South San Francisco General Plan. The Developer will develop the Project in a manner
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.
1.2 Downtown Station Area Specific Plan. The Developer will develop the Project in a
manner consistent with the objectives, policies, general land uses and programs specified
in the South San Francisco Downtown Station Area Specific Plan, as adopted in January
2015.
1.3 Downtown Station Area Specific Plan Zoning District. The Developer shall construct
the Project in a manner consistent with the Downtown Station Area Specific Plan Zoning
District applicable to the Project as of the Effective Date (except as modified by this
Agreement).
1.4 South San Francisco Municipal Code. The Developer shall construct the Project in a
manner consistent with the South San Francisco Municipal Code provisions, as
applicable to the Project as of the Effective Date(except as modified by this
Agreement).
FEES, EXACTIONS, & PAYMENTS
Subject to the terms of Section 5.6(b) of this Agreement, Developer agrees that
Developer shall be responsible for the payment of the following fees, charges, exactions, taxes,
and assessments (collectively, "Assessments"). 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.
2.1 Administrative/Processing Fees. The Developer 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
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line adjustments, general plan maintenance fee, demolition permits, and building
permits.
2.2 Impact Fees (Existing Fees). Except as modified below and as set forth in Section 3.2(b)
of this Agreement, the following 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.
(a) Child Care Impact Fee. (SSFMC Chapter 20.310; Ordinance 1432-2001).
(b) Public Safety Impact Fee. (Resolution 97-2012) Prior to receiving a building
permit the Project, the Developer 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.
(c) Sewer Capacity Charge. (Resolution 39-2010) Prior to receiving a building
permit for Tenant Improvements for the Project, the Developer shall pay the
Sewer Capacity Charge, as set forth in Resolution No. 39-2010.
(d) General Plan Maintenance Fee. (Resolution 74-2007).
2.3 User Fees.
(a) Sewer Service Charges. (assessed as part of property tax bill)
(b) Stormwater Charges. (assessed as part of property tax bill)
2.4 Community Enhancement Payments.
(a) Public Art Commitment. Developer agrees to (i) either install public art as part
of the Project worth a minimum of$25,000 or, if such public art is not installed
by the certificate of occupancy, then (ii) pay twenty-five thousand dollars
($25,000.00) to the City in order to support the development of public art in the
City.
(b) Community Benefit Payment. At issuance of the first building permit,
Developer agrees to pay five hundred thousand dollars ($500,000.00) to the
City to support increased pedestrian connectivity to the South San Francisco
Caltrain station.
(c) Park In-Lieu Payment. Developer agrees to pay ten thousand dollars
($10,000.00)per residential unit constructed, to the City, in order to support the
development of parks and open space areas in the City. Developer agrees to
pay this fee for all of each parcel's residential units prior to issuance of the first
Certificate of Occupancy for such parcel. For example, the Park In-Lieu
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Payments for all units on Parcel A shall be paid at the issuance of the first
Certificate of Occupancy for Parcel A.
2.5 Business License Tax Modifications. In the event that the City's business license tax is
modified and duly approved by voters, and any subsequent tax modifications become
applicable to the properties on the Project during the term of this Agreement, Developer
shall be responsible to pay the applicable business license tax amounts, as modified.
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