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HomeMy WebLinkAboutOrd. 1518-2016File Number: 16 -322 City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA Ordinance: ORD 1518 -2016 Enactment Number: ORD 1518 -2016 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT WITH ROTARY PLAZA, INC FOR 300 MILLER AVENUE WHEREAS, the City of South San Francisco ( "City ") is the owner of certain property certain real property (the "Property ") located in the City, known as County Assessor's Parcel Numbers 012 - 311 -230 (310 Miller Avenue), 012 - 311 -240 (312 Miller Avenue) , 012 - 311 -250 (314 Miller Avenue) and 012- 311 -260; and, WHEREAS, on June 29, 2011 the legislature of the State of California (the "State ") adopted Assembly Bill x 126 ( "AB 26 "), which amended provisions of the Redevelopment Law; and, WHEREAS, pursuant to AB 26 and the California Supreme Court decision in California Redevelopment Association, et al. v Ana Matosantos, et al., which upheld AB 26 (together with AB 1484, the "Dissolution Law "), the former South San Francisco Redevelopment Agency was dissolved on February 1, 2012; and, WHEREAS, pursuant to the Dissolution Law, the State of California Department of Finance ( "DOF "), on August 31, 2012, approved transfer of certain properties to the City of South San Francisco in its capacity as the Successor Housing Agency; and, WHEREAS, in January of 2015, the City and Rotary Plaza, Inc ( "Developer ") entered into an Exclusive Negotiation Rights Agreement ( "ENRA ") that established a mutual understanding among the City and the Developer regarding the potential development of the Property; and, WHEREAS, the Developer has proposed construction of a mixed -use residential development, consisting of 80 affordable senior housing units, 1 manager's unit and 1,993 square feet of community assembly space over .56 acres at the following addresses: 310 Miller Avenue, 312 Miller Avenue, 314 Miller Avenue and a municipal parking lot (collectively referred to as "300 Miller Avenue" or "Project Site ") in the City; and, ritir nf.vnuth .Vail Frnnricrn Paoo 7 pvirltnd nn 5/7 /IA File Number: 16 -322 Enactment Number: ORD 1518 -2016 WHEREAS, the City and the Developer now wish to enter into a Development Agreement (DA 16 -0001) ( "Development Agreement") that will supersede any points of agreement contained within the ENRA; and, WHEREAS, the City is interested in selling the 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, Developer seeks approval of a Conditional Use Permit, Design Review, Waiver and Modification, Density Bonus 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 ( "DSASP "); 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 Project is statutorily exempt from CEQA pursuant to Government Code § 65457 as a residential development project that is undertaken to implement and is consistent with the DSASP and none of the conditions specified in CEQA § 21166 or CEQA Guidelines § 15162 have occurred; and WHEREAS, the Project is also categorically exempt from CEQA pursuant to CEQA Guidelines § 15332 as an infill development project and none of the exceptions to the exemption specified in CEQA Guidelines § 15300.2 have occurred; and WHEREAS, the City prepared an Environmental Consistency Analysis for the Project pursuant to CEQA Guidelines § 15168(c)(2) and concluded that in accordance with the requirements of CEQA Guidelines § 15162, as a result of the Project, no new effects could occur and no new mitigation would be required even if the Project was not exempt from CEQA. The Environmental Consistency Analysis demonstrates 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 DSASP EIR certified by City Council nor would any new mitigation measures be required; and, ('itv of Rnuth .Qnn Fra"Picrn Paco 7 Priatod n" 1/7/14 File Number: 16 -322 Enactment Number: ORD 1518 -2016 WHEREAS, on March 17, 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 HKIT Architects, dated February 23, 2016; the Development Agreement, the Environmental Consistency Analysis, as prepared by City staff, dated March 17, 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 March 17, 2016 meeting; all reports, minutes, and public testimony submitted as part of the City Council's duly noticed April 13, 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 March 17, 2016, the City Council, exercising its independent judgment and analysis, finds that the Project is statutorily exempt from CEQA pursuant to Government Code Section 65457 as a residential development project that is undertaken to implement and is consistent with the DSASP and that none of the conditions specified in CEQA Section 21166 or CEQA Guidelines Section 15162 have occurred, that the Project is categorically exempt from CEQA pursuant to CEQA Guidelines Section 15332 as an infill development project and that none of the exceptions to the exemption specified in CEQA Guidelines Section 15300.2 have occurred, and that as a result of the Project no new effects could occur and no new mitigation would be required pursuant to CEQA Guidelines Section 15168(c)(2) and in accordance with the requirements of CEQA Guidelines Section 15162 even if the Project was CMY nfVnYjth .Qnn Frnneicen Pnao 4 Prinfod an V7116 File Number: 16 -322 Enactment Number: ORD 1518 -2016 The Environmental Consistency Analysis demonstrates that pursuant to CEQA Guidelines Section 15168(c)(2), the Project falls within the environmental parameters analyzed in the DSASP 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 DSASP EIR certified by City Council nor would new mitigation be required for the Project. This is supported by the fact that, consistent with the DSASP EIR Mitigation Monitoring and Reporting Program, a Shadow Analysis, a Historic Resources Analysis, 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 DSASP 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 DSASP, 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. 2. The Development Agreement, as proposed, is compatible with the proposed high- density residential use authorized in and the regulations prescribed for the land use district (Downtown Residential 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 DSASP. 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 shall be asset for in the Project approvals and, as and when they are issued, any subsequent approvals, as specified in Section 6.2 of the Agreement; c. the density and intensity of use of the Project Site shall be asset 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; r ;fir nf.Cmitb .Cnn Frnnricrn PO00 d Printod an 4/7/16 File Number: 16 -322 Enactment Number: ORD 1518 -2016 SECTION Il, APPROVAL OF DEVELOPMENT AGREEMENT The City Council of the City of South San Francisco hereby: 1. Approves the Development Agreement (DA 16 -0001) with Rotary Plaza, Inc 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 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 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. ('M2 nf.Cnath .Qnn Frnnricrn Pnnr 5 Pr;"trd nn V1 17Ai File Number: 16 -322 Enactment Number: ORD 1518 -2016 Introduced at a regular meeting of the City Council of the City of South San Francisco, held the 13th day of April, 2016. At a meeting of the City Council on 4/27/2016, a motion was made by Liza Normandy, seconded by Pradeep Gupta, that this Ordinance be adopted. The motion passed. Yes: 4 Councilmember Normandy, Councilmember Matsumoto, Vice Mayor Gupta, and Mayor Addiego Absent: 1 Councilmember Garbarino Attest by Kri inel A! %rgr Airar4E n ddi@g@ V1 �e� Met yc✓ rMY nf.Cnntb .Cna Frnnricrn Pnao 6 Prinfod nn V7176 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of South San Francisco 400 Grand Ave South San Francisco, CA 94080 Attention: City Manager APNs: 012- 311 -230, 240, 250 and 260 (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, DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF SOUTH SAN FRANCISCO AND ROTARY PLAZA, INC. 300 MILLER AVENUE SOUTH SAN FRANCISCO, CALIFORNIA 1297\21 \1877926.2 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement ") is entered into as of 2016 by and between Rotary Plaza Inc., a California corporation ( "Developer "), and the City of South San Francisco ( "City"), a municipal corporation, pursuant to California Government Code sections 65864 et seq. Developer and the City are collectively referred to herein as the "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. City is owner of certain real property located at 300 Miller Avenue, South San Francisco, California, also known as San Mateo Assessor's Parcel Numbers 012 - 311 -230, 240, 250 and 260 (the "Property "), as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference. D. City has agreed to sell the Property to Developer, and Developer has agreed to purchase the Property from the City pursuant to the terms set forth in this Development Agreement and in that certain Purchase and Sale Agreement and Joint Escrow Instructions between City and Developer dated 2016 (the "PSA "). E. Developer intends to construct on the Property a new five -story mixed -use building with a total of eighty (80) affordable senior residential units, one (1) manager unit, and one thousand nine hundred ninety three (1,993) square feet of community space (the "Project "). F. The housing to be constructed as a part of the Project will consist of thirty-nine (3 9) units restricted to very-low income households, forty -one (41) units restricted to moderate- income households, and one (1) managers unit and all units in the Project, except for the managers unit, will be restricted to senior households pursuant to an Affordable Housing and Regulatory Agreement (the "Regulatory Agreement ") to be executed by and between City and Developer, which will be recorded on the Property concurrently with this Agreement. G. The total proposed building area is approximately 88,287 square feet. A total of approximately 39 parking spaces will provide parking for the residential components of the project and will be located in a parking garage on the Project's ground floor. I 1297\21 \1877926.2 2630589 v. 104/05/2016 H. Developer has applied for, and City has granted, the Project Approvals (as defined in Section 6.12(d)) in order to protect the interests of its citizens in the quality of their community and environment. I. 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 units for moderate- and low- income senior households; (3) comply with any required mitigation pursuant to the Downtown Station Area Specific Plan EIR ; (4) provide for and generate 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. J. 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. K. The Project is statutorily exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Government Code Section 65457 as a residential development project that is undertaken to implement and is consistent with the Downtown Station Area Specific Plan ( "DSASP ") and that none of the conditions specified in CEQA Section 21166 or CEQA Guidelines Section 15162 have occurred. Further, the Project is categorically exempt from CEQA pursuant to CEQA Guidelines Section 15332 as an infill development project and none of the exceptions to the exemption specified in CEQA Guidelines Section 15300.2 have occurred. L. The City Council certified an Environmental Impact Report ( "EIR ") on January 28, 2015 (State Clearinghouse number 2013102001) in accordance with the provisions of CEQA and the CEQA Guidelines, which analyzed the potential environmental impacts of the development of the DSASP and included a Mitigation Monitoring and Reporting Program ( "MMRP "). The City Council also adopted a Statement of Overriding Considerations ( "SOC ") on January 28, 2015 in accordance with the provisions of CEQA and the CEQA Guidelines, which carefully considered each significant and unavoidable impact identified in the DSASP EIR and found that the significant environmental impacts are acceptable in light of the project's economic, legal, social, technological and other benefits. M. The City prepared an Environmental Consistency Analysis for the Project pursuant to CEQA Guidelines Section 15168(c)(2) and concluded that in accordance with the requirements of CEQA Guidelines Section 15162, as a result of the Project, no new effects could occur and no new mitigation would be required even if the Project was not exempt from CEQA as explained in Recital K above. The Environmental Consistency Analysis demonstrates 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 DSASP EIR certified by City Council. 1297\21 \1877926.2 2630589 v. 104/05/2016 N. The Planning Commission recommended that the City Council find that the Project is statutorily and categorically exempt from CEQA and recommended that the City Council approve the Environmental Consistency Analysis on 2016 by Resolution No. [XXXX] -16 O. The City Council found that the Project is statutorily and categorically exempt from CEQA and approved the Environmental Consistency Analysis on ,2016, by Resolution No. [XXXX] -2016 P. On , 2016, following a duly noticed public hearing, the Planning Commission adopted Resolution No. [XXXX] -2016, making a finding of General Plan consistency and recommending that the City Council approve this Agreement. Q. The City Council, after conducting a duly noticed public hearing, 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] -2016, approving and authorizing the execution of this Agreement. R. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Development Agreement is appropriate. This Development Agreement will eliminate uncertainty regarding Project Approvals, thereby encouraging planning for, investment in and commitment to develop the Property in a manner beneficial to the City and surrounding properties. Continued use and development of the Property will in turn provide much needed affordable housing, and contribute to the provision of needed infrastructure enhancements and public benefits, thereby achieving the goals and purposes for which the Development Agreement Statute was enacted and ensuring consistency with the City's General Plan. S. The terms and conditions of this Development Agreement have undergone extensive review by City staff, the Planning Commission and the City Council at publicly noticed meetings and have been found to be fair, just and reasonable and in conformance with the City General Plan and the Development Agreement Legislation, and, further, the City Council finds that the economic interests of City's residents and the public health, safety and welfare will be best served by entering into this Development 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: 129721 \1877926.2 2630589 v. 104/05/2016 ARTICLE 1. DEFINITIONS 1.1 "Administrative Project Amendment' has the meaning set forth in Section 7.1 of this Agreement. 1.2 "Administrative Agreement Amendment' has the meaning set forth in Section 7.2 of this Agreement. 1.3 "Agreement' means this Development Agreement. 1.4 "Applicable Law" has the meaning set forth in Section 6.3 of this Agreement. 1.5 "Assessments" has the meaning set forth in Exhibit C. 1.6 "City" means the City of South San Francisco. 1.7 "City Law" has the meaning set forth in Section 6.5 of this Agreement. 1.8 "Claims" has the meaning set forth in Section 6.10 of this Agreement. 1.9 "Deficiencies" has the meaning set forth in Section 9.2 of this Agreement. 1. 10 "Developer" means Rotary Plaza, Inc. 1.11 "Development Agreements Statute" has the meaning set forth in Recital A of this Agreement. 1.12 "Development Fees" has the meaning set forth in Section 3.2 of this Agreement. 1.13 "Effective Date" has the meaning set forth in Section 2.1 of this Agreement. 1.14 "Indemnitees" has the meaning set forth in Section 6.10 of this Agreement. 1.15 "Judgment' has the meaning set forth in Section 9.2 of this Agreement. 1. 1 6"Parties" means the Developer and City, collectively. 1. 1 7"Periodic Review" has the meaning set forth in Section 10.5 of this Agreement. 1. 18 "Prevailing Wage Laws" has the meaning set forth in Section 6.10 of this Agreement. 1.19 "Project" has the meaning set forth in Recital D of this Agreement. 1.20 "Project Approvals" has the meaning set forth in Section 6.12(d) of this Agreement. 1.21 "Property" has the meaning set forth in Recital C of this Agreement. 1.22 "Purchase and Sale Agreement and Joint Escrow Instructions Between the City of South San Francisco and Rotary Plaza, Inc." or "PSA" is defined as the "Purchase 1297\21 \1877926.2 2630589 v. 104/05/2016 and Sale Agreement and Joint Escrow Instructions between the City of South San Francisco and Rotary Plaza, Inc. dated and approved pursuant to City of South San Francisco City Council Resolution No. 1.23 "Subsequent Approvals" has the meaning set forth in Section 6.12(e) of this Agreement 1.24 "Tax" and "Taxes" does not include any generally applicable City Business License Tax or locally imposed Sales Tax. 1.25 "Term" has the 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 City of South San Francisco and Developer becomes effective. ( "Effective 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 Environmental Impact Report for the Project ("DSASP EIR" ). 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 1297\21 \1877926.2 2630589 v. 104/05/2016 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 DSASP EIR, 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 City of South San Francisco and approved by City of South San Francisco City Council 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. 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. 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 Riaht 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. 1297\21 \1877926.2 2630589 v. 104/05/2016 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. 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 1297\21 \1877926.2 2630589 v. 104/05/2016 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 Fees, 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 Property, 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 Property. 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 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 Property 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 Property; the density and intensity of use of the Property; 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 1297\21\1877926.2 2630589 v. 104/05/2016 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. 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, riming 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 Property, at any time during the Term, the 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 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 Property; (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; 1297\21 \1877926.2 2630589 v. 1 04/05"2016 (e) Result in Developer having to substantially delay construction of the Projector 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 Property any fees (except increases to existing fees that are generally applied to other similar users within the City), 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 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 was 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, City agrees to use the DSASP EIR in connection with the processing of 10 129721 \1877926.2 2630589 v. 104/05/2016 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, 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 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. 6.1 OPrevailing 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 III 1297\21 \1877926.2 2630589 v. 104/05/2016 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 Reserved. 6.12The Project. (a) Affordable Housing Project. Developer intends to construct, own and operate on the Property a multi - family residential building with eighty -one (8 1) dwelling units (the "Housing Project "). The Housing Project will consist of thirty -nine (39) units restricted to very -low income households, forty -one (41) units restricted to moderate - income households families, and one (1) managers unit. All units in the Project, except for the managers unit, shall be restricted to senior households. City and Developer acknowledge and agree that housing units developed as part of the project are subject to those restrictions provided for in Regulatory Agreement. (b) Community Room. Developer shall construct and make available to the City for use a community room of at least 1,193 square feet. The community room shall be as shown in the Project Approvals. The City and Developer agree that the Purchase and Sale Agreement will include, as a condition of closing, that the Parties negotiate and execute a Memorandum of Understanding that will govern the City's right to use the community room (c) Project Approvals. Development of the Project requires that the Developer obtain from the City the following land use entitlements: Conditional Use Permit; Design Review; Modification to Open Space and Lot Coverage Requirements, Waiver of Private Storage Standards; Density Bonus and a Parking Reduction (collectively referred to herein as the "Project Approvals "). The Project Approvals are shown in Exhibit B. The Property is located in the Downtown Residential Core Zoning District, and the Conditional Use Permit, Design Review, Waiver and Modification, Density Bonus and Parking Reduction requests are required in accordance with SSFMC Chapters 20.280, 20.330, 20.390, 20.480, 20.490 & 20.510 12 1297\21 \18779262 2630589 v. 104/05/2016 (d) Subsequent Approvals. In order to develop the Project as contemplated in this Development Agreement, the Project may require land use approvals, entitlements, development permits, and use and/or construction approvals other than those listed in Section 6.12(d) above, which may include, without limitation: development plans, amendments to applicable conditional use permits, variances, subdivision approvals, street abandonments, design review approvals, demolition permits, improvement agreements, infrastructure agreements, grading permits, building permits, right -of -way permits, lot line adjustments, site plans, sewer and water connection permits, certificates of occupancy, parcel maps, lot splits, landscaping plans, master sign programs, transportation demand management programs, encroachment permits, and amendments thereto and to the Project Approvals (collectively, "Subsequent Approvals "). At such time as any Subsequent Approval applicable to the Property is approved by the City, then such Subsequent Approval shall become subject to all the terms and conditions of this Development Agreement applicable to Project Approvals and shall be treated as a "Project Approval' under this Development Agreement. 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 Project 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 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 Property diagram or Property legal description shall be treated as Administrative Project Amendments. 19' 1297\21 \1877926.2 2630589 v. 104105/2016 (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 Property, (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 Property 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 amendments include, but are not limited to, agreements concerns of senior lenders and a tax credit investor, provided such agreement is consistent with subsections (i) through (vi) above.6Such 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. Developer 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 14 1297\21 \1877926.2 2630589 v. 104/0512016 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; 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 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 15 1297\21 \1877926.2 2630589 v. 104/05/2016 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 parry shall take no further action. 10.2Termination. 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. 16 1297\21 \1877926.2 2630589 v. 104/05/2016 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 10ALegal 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 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, 17 129721 \1877926.2 2630589 v. 104 /05/2016 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 ten (10) 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. (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. 10.6Califomia 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. F6 1297\21 \1877926.2 2630589 v. 1 04/05/2016 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. If such disputes are not resolved in the meetings contemplated by this section, then the parties agree that such disputes may be submitted for non - binding mediation by a qualified mediator. The parties agree that each will mediate such disputes in good faith prior to initiating litigation. 10.8 Attorneys' 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. 10.91-lold 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 Agenc_v. 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 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 19 1297\21 \1877926.2 2630589 v. 104/05/2016 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 Property at the time of the approval of this Agreement as provided by Government Code section 65866. 11 ASeverability. 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 ply. 11.5 Other 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. IL 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. 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, 20 129721 \1877926.2 2630589 v. 1 04105/2016 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 Property, and is binding upon the owner of all or a portion of the Property and each successive owner during its ownership of such property. Notwithstanding any other provision in this Agreement, City agrees that the affordability restrictions contemplated by this Agreement shall be subordinated to the lien of a senior lender providing funds to develop the Project in accordance with the terms of this Agreement and consistent with the provisions of Section 8.3 of the Regulatory Agreement. 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 If to Developer, to: Rotary Plaza, Inc. 21 1297\21 \1877926.2 2630589 v. 104/05/2016 c/o Beacon Development Group 6120 Stoneridge Mall Road, Suite 300 Pleasanton, CA 94588 Attn: Ancel Romero Phone: (925) 974-7197 Email: aromero @beaconcommunities.org With Copies to: Goldfarb & Lipman LLP 1300 Clay Street, 11th Floor Oakland, CA 94612 Attn: Robert C. Mills Phone: (510) 836-6336 Email: rmills @goldfarblipman.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 Property 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. 22 129721 \1877926.2 2630589 v. 104/05/2016 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 ROTARY PLAZA, INC. a California nonprofit public benefit corporation By: Name: Its: 23 1297\21 \1877926.2 2630589 v. 104/05/2016 Exhibit A: Description and Diagram of Property 24 129n] \1877926.2 2630589 v. 104/05/2016 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.] 25 1297\21 \1877926.2 2630589 v. 104/05/2016 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 Snecific 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). 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 line adjustments, general plan maintenance fee, demolition permits, and building permits. 26 1297\21 \1877926.2 2630589 v. 104/05/2016 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). The parties agree that Developer may seek a waiver of the Child Care Impact Fee pursuant to SSFMC Section 20.310.004. As provided in Section 20.310.004, grant of such waiver is within the discretion of the City Council. (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 Benefits (a) Common community space (b) Intention to work with general contractor to establish a local outreach plan to achieve specified local hire goals (c) Transit services such as Meals on Wheels, in -home support services, shared transportation services with Beacon's Hillcrest Gardens (Daly City) paratransit, and coordinated visits by physicians and nurses (d) Ninety percent of the units will be "adaptable, which allows for simple conversion by maintenance staff to a fully accessible unit and 10% will be fully accessible, with additional visual and hearing accommodations 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 27 1297\21 \1877926.2 2630589 v. 1 04/05/2016 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. 2630589.2 iw 1297\21 \1877926.2 2630589 v. 104105/2016