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HomeMy WebLinkAboutReso 59-2005 RESOLUTION NO. 59-2005 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING THE USE OF TAX INCREMENT REVENUES FOR PUBLIC IMPROVEMENTS AND THE EXECUTION OF A SETTLEMENT AND RELEASE AGREEMENT WITH THE COUNTY OF SAN MATEO WHEREAS, pursuant to California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL"), the City of South San Francisco ("City") and the Redevelopment Agency of the City of South San Francisco ("Agency") have proposed to amend the redevelopment plans for the EI Camino Corridor, Downtown/Central, Gateway, and U.S. Steel/Shearwater Project Areas (hereafter, the foregoing are referred to individually as a "Project Area" and collectively as the "Project Areas") in order to extend the time limit within which the Agency may exercise eminent domain to acquire nonresidential property in the Downtown/Central Project Area and the original EI Camino Corridor Project Area, add territory to the Downtown/Central Project Area, and fiscally merge the four Project Areas (the amendments to effectuate all of the foregoing are hereinafter collectively referred to as the "Plan Amendments and Fiscal Merger"); and WHEREAS, on April 27, 2005, the Agency Board and the City Council held a joint public hearing to consider the proposed Plan Amendments and Fiscal Merger and the proposed implementation plan (the "Implementation Plan") which was included as Appendix H of the Report to Council prepared in connection with the proposed Plan Amendments and Fiscal Merger; and WHEREAS, in letters dated April 27, 2005, the County of San Mateo ("County") submitted written objections to the proposed Plan Amendments and Fiscal Merger; and WHEREAS, on May 11, 2005, the South San Francisco City Council ("City Council") adopted written findings ("Findings") in response to such objections, introduced ordinances to adopt the Plan Amendments and Fiscal Merger, and directed Agency staff to continue negotiations with the County regarding the County's objections; and WHEREAS, Agency and County staff have proposed measures ("Mitigation Measures") to mitigate the fiscal impact of the proposed Plan Amendments and Fiscal Merger which Mitigation Measure are consistent with the Findings and are set forth in the Settlement and Release Agreement ("Settlement Agreement") attached hereto as Exhibit A; and WHEREAS, the proposed Mitigation Measures include the construction and installation of certain public improvements as more particularly described in the Settlement Agreement (the "Public Improvements"), and CRL Section 33445 provides that a redevelopment agency may, with the consent of the legislative body, pay for the cost of construction and installation of facilities and other improvements which are publicly owned if the legislative body and the agency determine all of the following: 1) The improvements are of benefit to the project area or the immediate neighborhood in which the project is located. 2) No other reasonable means of financing the improvements is available to the community. 3) The payment of funds for the cost of the improvements will assist in the elimination of one or more blighting conditions inside the project area, and will be consistent with the implementation plan adopted by the redevelopment agency. WHEREAS, the construction and installation of public access and other improvements to the San Bruno Mountain recreational area in the area immediately adjacent to the Downtown/Central, Gateway and U.S. SteellShearwater project areas will be of benefit to such project areas and will assist in the elimination of blighting conditions therein because such project areas are characterized by a lack of adequate open space and recreational facilities; and WHEREAS, the construction and installation of the other public improvements will be of benefit to the EI Camino Corridor, the Downtown Central and the Gateway Project Areas and will assist in the elimination of blighting conditions therein because the housing and health clinic improvements serve and will continue to serve the residents of the Downtown Central Redevelopment Area where the clinic is located and the residents in EI Camino Area as well as employees in all of the redevelopment areas by providing temporary and permanent housing assistance and local medical facilities. Finally, reimbursement for the guardrail installation along Westborough Boulevard will serve residents and employees in the EI Camino and Downtown Central Redevelopment Areas by providing an improved street system; and WHEREAS, the County Board of Supervisors has determined that no other source of funds is reasonably available to the County to finance the projects identified in the Settlement Agreement as revenue that might otherwise be available for such purposes is committed for other purposes; and WHEREAS, Agency and City staff are aware of no other source of funds reasonably available to the City or the Agency to finance the projects identified in the Settlement Agreement as the only other source available for such purpose would be City general fund revenues which are committed for the provision of essential public services such as police and fire services; and WHEREAS, CRL Section 33490 (a)(l)(A) provides that a redevelopment agency may amend an implementation plan after conducting a public hearing on the proposed amendment following publication of notice once per week for three successive weeks in accordance with Government Code Section 6063; and WHEREAS, the Settlement Agreement provides that compliance with all requirements of law, including without limitation the completion of any required environmental review and the adoption by the County, the City and the Agency of all applicable required findings is required prior to the funding of the projects identified in the Settlement Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco hereby: 1) Finds, based upon the foregoing Recitals, that (i) the expenditure of tax increment funds to undertake the projects set forth in the Settlement Agreement will be of benefit to the Project Areas, (ii) no other reasonable means of financing such projects is reasonably available, and (iii) the expenditure of tax increment funds to install and construct the public improvements identified in the Settlement Agreement will eliminate blighting conditions in the Project Areas. 2) Directs Agency staff to schedule and publish notice for a public hearing to consider amendments to the Implementation Plan consistent with the intent of this Resolution. 3) Authorizes the Mayor, the City Manager, or the designee of either to execute and deliver the Settlement and Release Agreement, substantially in the form attached hereto. 4) Authorizes the Mayor, the City Manager or the designee of either to execute and deliver such other instruments and to take such other action as necessary to carry out the intent of this Resolution. * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the 8th day of June 2005 by the following vote: AYES: Councilmembers Richard A. Garbarino. Pedro Gonzalez and Karvl Matsumoto. Mayor Pro Tem Joseph A. Fernekes and Mavor Raymond L. Green NOES: None. ABSTAIN: None. ABSENT: None. ATTEST: f1~'"'-' fIl. ~ City Clerk Exhibit A SETTLEMENT AND RELEASE AGREEMENT SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is entered into as of , 2005, by and between the County of San Mateo, a public body corporate and politic ("County"), the City of South San Francisco, a municipal corporation ("City") and the Redevelopment Agency of the City of South San Francisco, a public agency ("Agency"). County, City and Agency are hereinafter referred to collectively as the "Parties." WHEREAS, pursuant to California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL"), the City and the Agency have proposed to amend the redevelopment plans for the City's EI Camino Corridor, Downtown/Central, Gateway, and U.S. Steel/Shearwater project areas (hereafter, the foregoing are referred to individually as a "Project Area" and collectively as the "Project Areas") in order to extend the time limit within which the Agency may exercise eminent domain to acquire nonresidential property in the Downtown/Central Project Area and the original EI Camino Corridor Project Area, add territory to the Downtown/Central Project Area, and fiscally merge the four Project Areas (the amendments to effectuate all of the foregoing are hereinafter collectively referred to as the "Plan Amendments and Fiscal Merger"); WHEREAS, in connection with the proposed Plan Amendments and Fiscal Merger, the Agency and the City have prepared and undertaken a series of studies, analyses, consultations, and public hearings, all in accordance with the requirements of the CRL; WHEREAS, on April 27, 2005, the Agency and the City held ajoint public hearing on the proposed Plan Amendments and Fiscal Merger; WHEREAS, in letters dated April 27, 2005, the County submitted written objections to the proposed Plan Amendments and Fiscal Merger; WHEREAS, on May 11, 2005, the South San Francisco City Council ("City Council") adopted written findings in response to such objections, introduced ordinances to adopt the Plan Amendments and Fiscal Merger, and directed Agency staff to continue negotiations with the County regarding the County's objections; WHEREAS, Agency and County staff have proposed measures ("Mitigation Measures") which would mitigate the fiscal impact on the County of the proposed Plan Amendments and Fiscal Merger; WHEREAS, CRL Section 33352(n) provides that in response to objections raised by an affected taxing entity, a redevelopment agency may adopt mitigation measures including redevelopment plan amendments which limit the duration of the redevelopment plan or the total amount of tax increment to be received by the agency, or which address the proposed use, size, density, or location of development to be assisted by the agency; and WHEREAS, the City Council, the governing board of the Agency ("Agency Board") and the County Board of Supervisors ("County Board") have reviewed and approved the -1- adoption of the Mitigation Measures and have reviewed and approved the execution of this Agreement. NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Limitation on Receipt of Tax Increment. The Agency will not receive taxes allocated to the Agency pursuant to Health and Safety Code Section 33670(b) from the Gateway Project Area after the earlier of (i) June 30, 2020, or (ii) the date upon which the combined tax increment allocation limit for the merged Project Areas is reached. The Agency and the City agree to include the foregoing limitation in the redevelopment plan amendment for the Gateway Project Area. 2. Assistance to County Projects. Following compliance with all requirements of law, including without limitation, the completion of any required environmental review and the adoption by the County Board, the Agency Board, and the City Council of all applicable findings required under CRL Section 33445, as a settlement of any and all threatened litigation and asserted or unasserted claims by the County against the Agency or City in connection with the Plan Amendments and Fiscal Merger. the Agency agrees that in order to avoid litigation and (without admitting any liability or wrongdoing), it will fund some or all of the public improvements identified in Exhibit A hereto, or such other projects as may be mutually agreed upon by the Agency and the County, by making payments in an aggregate amount not to exceed five million dollars ($5,000,000). At the sole discretion of County, such payments by the Agency shall be in the form of (1) reimbursement to the County for completed work on projects approved pursuant to this Agreement, (2) rent payment waivers by the Agency, or (3) direct payment to third parties when such payments are for 'work completed on projects approved pursuant to this Agreement and approved in wJiting by the County. The allocation of the fi ve million dollars ($5,000,000) among the projects shall be as recommended by the County and approved by the Agency Executive Director 'vvhich approval shall not be unreasonably withheld. The parties agree that payments or cost waivers provided by Agency pursuant to this Agreement shall not exceed a total aggregate sum of $2,000,000 during fiscal years 2005-06 through 2006- 07 and a total aggregate sum of $3,000,000 during the period commencing with fiscal year 2007- 08. Notwithstanding the prior sentence, the parties agree that if the County elects to receive the rent waiver identified in Exhibit A, the time period for such waiver shall continue for 6.33 years and the value of those rent waivers shall deducted from and considered a part of the total obligation of $5,000,000. With regard to each of the public improvements identified in Exhibit A hereto, the parties have each determined that: i) the buildings, facilities, structures, or other improvements are of benefit to one or more of the Project Areas or the immediate neighborhood in which the public improvement is located; ii) other than as described in this Agreement, the County/Agency has no other reasonable means of financing the public improvements; and iii) the payment of funds for the acquisition of land or the cost the other improvements will assist in the elimination of one or more blighting conditions inside the Project Area or help provide housing for low- or moderate- income persons, and is consistent with the implementation plan adopted by the Agency pursuant to CRL Section 33490. The parties further agree that to the extent the Agency is required to 760691-1 amend the implementation plans for any of the redevelopment projects within South San Francisco in order to provide payments or cost waivers for a particular project pursuant to this Agreement, the Agency shall commence and complete the necessary amendment process within six months of execution of this Agreement. 3. Release of Claims; Covenant Not to Sue. The County hereby releases and forever discharges City and Agency from any and all claims, demands, proceedings, causes of action, orders, obligations, and liabilities directly or indirectly relating to or arising from or in connection with any challenge relating to the validity of the Plan Amendments and Fiscal Merger, the adoption or approval of the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger, whether known or unknown, suspected or unsuspected, both at law and in equity, which County now has, has ever had, or may hereafter have, and whether or not relating to claims pending on, or asserted after, the date hereof. Without limiting the generality of the foregoing, it is understood that this Agreement is a full and final release of any and all claims relating to the validity of the Plan Amendments and Fiscal Merger, the adoption or approval of the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger. The County hereby irrevocably covenants to refrain from directly or indirectly asserting any claim or demand, or commencing, instituting, supporting or causing to be commenced, instituted or supported, any action or proceeding of any kind, including without limitation any action or proceeding brought pursuant to Chapter 5 (commencing with Section 33500) of the CRL, by the County or any third party to question the validity of the Plan Amendments and Fiscal Merger, the adoption or approval the Plan Amendments and Fiscal Merger, or any of the findings or determinations of the Agency Board or the City Council made in connection with the Plan Amendments and Fiscal Merger. 4. Indemnity. Without in any way limiting any of the rights and remedies otherwise available to City and Agency, County shall indemnify, defend (with counsel approved by City and Agency) and hold City and Agency harmless from and against all loss, liability, claim, damage (including incidental and consequential damages) and expense (including costs of investigation and defense and reasonable consultants' and attorneys' fees) directly or indirectly relating to or arising from or in connection with (i) the assertion by or on behalf of County of any claim or County's initiation or support of any claim, demand, action or proceeding concerning any matter purported to be released pursuant to this Agreement, or (ii) any other violation of this Agreement by County, including without limitation, County's support of any third party claim, demand, action or proceeding which claim, demand, action or proceeding directly or indirectly relates to or arises from, or in connection with, any claim or other matter purported to be released pursuant to this Agreement. 5. Waiver. County acknowledges and agrees that County hereby waives all rights under Section 1542 of the Civil Code of California, which provides as follows: "A genefal release does not extend to claims which the creditor does not know Of suspect to exist in his favor at the time of executing the release, 760691-1 which if known by him must have materially affected his settlement with the debtor." 6. Settlement. The Parties acknowledge and agree that this Agreement is the compromise of a disputed claim, and that none of the agreements set forth herein are intended to be or shall be construed as an admission of liability on the part of any Party with respect to any claim or other matter purported to be released pursuant to this Agreement. 7. Representations and Warranties. 7.1 County. County hereby represents and warrants that (i) County has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of County to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on County's behalf are duly authorized to do so. 7.2 City. City hereby represents and warrants that (i) City has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of City to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on City's behalf are duly authorized to do so. 7.3 Agency. Agency hereby represents and warrants that (i) Agency has full power and authority to enter into this Agreement; (ii) all actions necessary on the part of Agency to authorize the execution hereof have been undertaken; and (iii) the persons executing this Agreement on Agency's behalf are duly authorized to do so. 8. Severability; Construction; Entire Agreement. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect unless the intent of the Parties would thereby be defeated. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. All words used in this Agreement will be construed to be of such gender or number, as the circumstances require. Each Party participated in the negotiation and drafting of this Agreement with the benefit of counsel. This Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as ifboth Parties had prepared it. This Agreement contains the final, complete and exclusive statement of the agreement between the Parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings or agreements pertaining thereto. 9. Amendment, Governing Law; Attorneys' Fees; Counterparts. This Agreement (i) may not be modified except in a writing signed by the Parties, and (ii) shall be governed by and construed under the laws of the State of California without regard to principles of conflicts of law. In any action at law or in equity, arbitration or other proceeding arising in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and other costs, including but not limited to court costs and expert and consultants' fees incurred in connection with such action, in addition to any other relief awarded. This Agreement may be 760691-1 executed in multiple counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. 10. Effective Date of the Agreement. This Agreement shall be effective upon completion of the following items: (1) approval and execution by the County, Agency, and City and (2) the expiration of any applicable statute of limitations related to approval of the Plan Amendments and Fiscal Merger and the absence of any legal challenge to the approval of the Plan Amendments and Fiscal Merger filed within the appropriate statute of limitations. The parties agree that in the event that an individual or entity other than a party hereto files a legal challenge to the Plan Amendments and Fiscal Merger, the City and Agency shall not assert a statute of limitations defense to any claim or action instituted by the County (provided that the any legal action instituted by the County is filed with 14 days after the expiration of the appropriate statute oflimitations). To confirm the effectiveness of the foregoing sentence the parties agree to a 14 day tolling of the limitations period with regard to any legal action by the County challenging the Plan Amendments and Fiscal Merger. IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first written above. COUNTY OF SAN MATEO By: Its: Attest: County Clerk Approved by: County Counsel CITY OF SOUTH SAN FRANCISCO By: Its: Attest: City Clerk Approved by: City Attorney 760691-1 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO By: Its: Attest: Agency Secretary Approved by: Agency Counsel 760691-1 EXHIBIT A COUNTY PROJECrS Subject to the terms and conditions of the Agreement, the parties agree that the following projects may be funded from the five million ($5,000,000) total amount set forth in the Agreement. I. Safe Harbor Improvements 2. Safe Harbor Client Housing Rehabilitation 3. South San Francisco IJealth Clinic Improvements Cost Waiver 4. South San Francisco Health Clinic Building Improvements 5. South San Francisco Flealth Clinic Rent Waiver (through end of currcnt term of lease, \vhich is 6.33 years) 6. Reimbursement of costs for Westborough Guard Rail 7. Construction and installation of access and other improvements, including a l-labitat Conservation Plan Amendment as necessary to implement the foregoing, to the San Bruno Mountain rccreational area in the arca immcdiately adjacent to thc Projcct Arcas. 760691-1