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HomeMy WebLinkAboutOrd. 1606-2020 (20-721)City of South San Francisco P.O. Box 711 (City Hall, • 400 Grand Avenue) South San Francisco, CA City Council Ordinance: ORD 1606-2020 File Number: 20-721 Enactment Number: ORD 1606-2020 ORDINANCE ADOPTING A SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT (DAA20-0003) BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND BETWEEN BMR GATEWAY OF PACIFIC I LP, BMR GATEWAY OF PACIFIC II LP, BMR GATEWAY OF PACIFIC III LP, AND BMR GATEWAY OF PACIFIC IV LP FOR THE GATEWAY BUSINESS PARK MASTER PLAN PROJECT TO MAKE MINOR MODIFICATIONS. WHEREAS, BMR - Gateway/Oyster LP ("Owner" or "Applicant") received entitlements for the phased removal and replacement of existing buildings on the 22.6 -acre project site and construction of five to six new buildings and two to four parking structures, in five phases, to be located at the corner of Gateway and Oyster Point Boulevards (700, 750, 800, 850, 900, and 1000 Gateway Boulevard), in the Gateway Specific Plan Area ("Gateway Business Park Master Plan Project" or "Project"); and WHEREAS, on February 10, 2010, after conducting all proceedings and making all findings necessary for the valid adoption and execution of a development agreement for the Property in accordance with Government Code Sections 65864 through 65869.5, the California Environmental Quality Act ("CEQA"), and Chapter 19.60 of the Municipal Code, the City Council adopted Ordinance No. 1423-2010, approving and adopting a development agreement for the property at 700-1000 Gateway Boulevard ("Property"); and WHEREAS, on May 8, 2013, the City Council adopted Ordinance No. 1471-2013 concerning a First Amended and Restated Development Agreement between City and Applicant ("First Amended DA"); and WHEREAS, on June 27, 2018, the City Council adopted Ordinance No. 1599-2018 concerning a Second Amended and Restated Development Agreement between City and BMR Gateway of Pacific I LP, BMR Gateway of Pacific II LP, BMR Gateway of Pacific III LP, and BMR Gateway of Pacific IV LP to allow for minor modifications to the agreement, including acknowledgement of the transfer and assignment of the separate parcels to the respective affiliates, acknowledgement of lot line adjustment between Phases 1 and 2, and confirmation that each property owner holds the compliance burdens, obligations, and responsibilities for its respective parcel of property under the Second Amended and Restated Development Agreement; and WHEREAS, on February 26, 2020 the City adopted Ordinance No. 1595-2020 adopting a First Amendment to the Second Amended and Restated Development Agreement which substituted payment of a fee that will enable the City to build a childcare facility in lieu of having the applicants construct or open a replacement childcare facility on or within one mile of the project site; and City of South San Francisco Page 1 File Number: 20-721 Enactment Number: ORD 1606-2020 WHEREAS, Applicant submitted an application requesting a Second Amendment to the Second Amended and Restated Development Agreement to allow for a minor modification to the agreement related to the replacement childcare obligations; and, WHEREAS, the City Council certified the 2009 Environmental Impact Report ("2009 EIR") on February 10, 2010 in accordance with the provision of the California Environmental Quality Act (Public Resources Code, §§ 21000, et seq., "CEQA") and CEQA Guidelines, which analyzed the potential environmental impacts of the Project; and, WHEREAS, the modifications contemplated in the Second Amendment to the Second Amended and Restated Development Agreement are minor in nature, the approval of which 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 2009 EIR certified by City Council, nor does the Second Amendment to the Second Amended and Restated Development Agreement constitute a change in the Project or change in circumstances that would require additional environmental review; and, WHEREAS, on August 6, 2020 the Planning Commission for the City of South San Francisco held a lawfully noticed public hearing to solicit public comment and consider the Second Amendment to the Second Amended and Restated Development Agreement, and recommended that the City Council consider the Second Amendment to the Second Amended and Restated Development Agreement; and, WHEREAS, the City Council held a duly noticed public hearing on September 9, 2020, which was continued to September 23, 2020, to consider the Second Amendment to the Second Amended and Restated Development Agreement, and take public testimony. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of South San Francisco does hereby ordain as follows: SECTION 1. Findings. That based on the entirety of the record before it, which includes without limitation, the California Environmental Quality Act, Public Resources Code §21000, et seq. ("CEQA") and the CEQA Guidelines, 14 California Code of Regulations §15000, et seq.; the South San Francisco General Plan, General Plan Environmental Impact Report; the South San Francisco Municipal Code; 2009 EIR, and associated Mitigation Monitoring and Reporting Programs; all site plans, and all reports, minutes, and public testimony submitted as part of the Planning Commission's duly noticed August 6, 2020 meeting; all site plans, reports, minutes, and public testimony submitted as part of the City Council's duly noticed public hearing on September 9, 2020 which was continued to September 23, 2020; and any other evidence (within the meaning of Public Resources Code §21080(e) and §21082.2), the City Council of the City of South San Francisco hereby finds as follows: A. The foregoing recitals are true and correct and made a part of this Ordinance. City of South San Francisco Page 2 File Number. 20-721 Enactment Number. ORD 1606-2020 B. The Exhibit attached to this Ordinance, the proposed Second Amendment to the Second Amended and Restated Development Agreement (Exhibit A), is incorporated by reference and made a part of this Ordinance, as if set forth fully herein. C. The documents and other material constituting the record for these proceedings are located at the Planning Division for the City of South San Francisco, 315 Maple Avenue, South San Francisco, CA 94080, and in the custody of Chief Planner, Sailesh Mehra. D. The Second Amendment to the Second Amended and Restated Development Agreement, attached hereto as Exhibit A, sets for the duration, property, project criteria, and other required information identified in Government Code section 65865.2. Based on the findings in support of the Project, the City Council finds that the Development Agreement, vesting a project for a campus -style development of office and R&D buildings, is consistent with the consistent with the objectives, policies, general land uses and programs specified in the South San Francisco General Plan, the Gateway Specific Plan, and any applicable zoning regulations. E. The Second Amendment to the Second Amended and Restated Development Agreement is compatible with the uses authorized in, and the regulations prescribed for the land use district in which the real property is located. The subject site is physically suitable for the type and intensity of the land use being proposed. The General Plan specifically contemplates the proposed type of project and the suitability of the site for development was analyzed thoroughly in the environmental document prepared for the Project. F. The Second Amendment to the Second Amended and Restated Development Agreement is in conformity with public convenience, general welfare and good land use practice. G The Second Amendment to the Second Amended and Restated Development Agreement will not be detrimental to the health, safety and general welfare because the amendment preserves a campus -like environment. H. The Second Amendment to the Second Amended and Restated Development Agreement will not adversely affect the orderly development of property or the preservation of property valued because the amendment improves the property's campus -like environment and is consistent with surrounding R&D and office uses. SECTION 2. Approval of Development Agreement A. The City Council of the City of South San Francisco hereby approves the Second Amendment to the Second Amended and Restated Development Agreement with BMR Gateway of Pacific I LP, BMR Gateway of Pacific II LP, BMR Gateway of Pacific III LP, and BMR Gateway of City of South San Francisco Page 3 File Number: 20-721 Enactment Number: ORD 1606-2020 Pacific IV LP, attached hereto as Exhibit A and incorporated herein by reference. B. The City Council further authorizes the City Manager to execute the Second Amendment to the Second Amended and Restated Development Agreement, on behalf of the City, in substantially the form attached as Exhibit A, and to make revisions to such Agreement, subject to the approval of the City Attorney, which do not materially or substantially increase the City's obligations thereunder. SECTION 3. Severability If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of South San Francisco hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. SECTION 4. Publication and Effective Date. Pursuant to the provisions of Government Code Section 36933, a summary of this Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the Summary, and (2) post in the City Clerk's Office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk's Office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco held the 23' day of September 2020. At a meeting of the City Council on 10/14/2020, a motion was made by Vice Mayor Addiego, seconded by Councilmember Nicolas, that this Ordinance be adopted. The motion passed. City of South San Francisco Page 4 File Number. 20-721 Enactment Number. ORD 1606-2020 Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember Nicolas, and Councilmember Matsumoto Attest by w A 4 R sa Govea Acosta, City Clerk 7 livif Richard Garbarino,'Mayor City of South San Francisco Page 5 DRAFT July 21, 2020 Page 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of South San Francisco 400 Grand Avenue P. O. Box 711 South San Francisco, CA 94083 Exempt from recording fees per Government Code §§6103, 27383 ______________________________________________________________________________ Space above this line reserved for recorder’s use APNs: 015-023-290; 015-023-300 015-023-200; 015-023-320; 015-023-430; 015-023-190; 015-023-310 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF SOUTH SAN FRANCISCO AND BMR-GATEWAY OF PACIFIC I LP, BMR-GATEWAY OF PACIFIC II LP, BMR-GATEWAY OF PACIFIC III LP, AND BMR-GATEWAY OF PACIFIC IV LP SOUTH SAN FRANCISCO, CALIFORNIA Gateway Business Park Master Plan Project Exhibit A - Second Amendment to Second Amended and Restated Development Agreement DRAFT July 21, 2020 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT Page 2 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT Gateway Business Park Master Plan Project This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE GATEWAY BUSINESS PARK MASTER PLAN PROJECT is dated __________ ___, 2020 (“Second Amendment”). This Second Amendment is between BMR-Gateway of Pacific I LP, formerly known as BMR-700 Gateway LP (“BMR- Gateway of Pacific I”); BMR-Gateway of Pacific II LP, formerly known as BMR-750, 800, 850 Gateway LP (“BMR-Gateway of Pacific II”); BMR-Gateway of Pacific III LP, formerly known as BMR-900 Gateway LP (“BMR-Gateway of Pacific III”); and BMR-Gateway of Pacific IV LP, formerly known as BMR-1000 Gateway LP (“BMR-Gateway of Pacific IV”); all of which are Delaware limited partnerships (collectively “Owners” and individually “Owner”), on the one hand, and the CITY OF SOUTH SAN FRANCISCO, a municipal corporation organized and existing under the laws of the State of California (“City”), on the other hand. Each Owner and the Cit y are individually referred to herein as a “Party” and collectively referred to herein as “Parties.” R E C I T A L S A. WHEREAS, Owners and City are parties to that certain Second Amended and Restated Development Agreement (Gateway Business Park Master Plan Project) by and between the Owners and City, dated August 31, 2018, and recorded in the Official Records of San Mateo County on September 7, 2018, as Document Number 2018-070317 (“Development Agreement ”); B. WHEREAS, Owners and City entered into a First Amendment to the Development Agreement, dated March 30, 2020, and recorded in the Official Records of San Mateo County on April 10, 2020, as Document Number 2020-032850 (“First Amendment”); C. WHEREAS, in connection with the City’s consideration of a Precise Plan for development of Phase 4 of the Gateway Business Park Master Plan Project, Owners and City again wish to amend the Development Agreement as set forth in this Second Amendment ; D. WHEREAS, all proceedings necessary for the valid adoption and execution of this Second Amendment have taken place in accordance with California Government Code sections 65864 through 65869.5, the California Environmental Quality Act, and Chapter 19.60 of the City’s Municipal Code; E. WHEREAS, the City Council and the City Planning Commission have found that the Development Agreement, as amended by the First Amendment and this Second Amendment, is consistent with the objectives, policies, general land uses, and programs specified in the South San Francisco General Plan; and SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT Page 3 F. WHEREAS, on __________ ___, 2020, the City adopted Ordinance Number ____-2020 approving and adopting this Second Amendment, and such ordinance took effect 30 days later. A G R E E M E N T NOW, THEREFORE, the Parties, pursuant to the authority contained in Government Code Sections 65864 through 65869.5 and Chapter 19.60 of the City’s Municipal Code, and in consideration of the mutual covenants and agreements contained herein, agree as follows: 1. Extended Duration. Section 2 of the Development Agreement is amended and restated in its entirety to read as follows: This Agreement shall expire on December 31, 2030. Notwithstanding the foregoing, if litigation against an Owner (or any of its officers, agents, employees, contractors, representatives or consultants) to which the City also is a party should delay implementation or construction on such Owner’s parcel of Property of the “Project ” (as defined in Section 3 below), the expiration date of this Agreement as applicable to that Owner’s parcel and obligations of such Owner shall be extended for a period equal to the length of time from the time the summons and complaint is served on the defendant(s) until the judgment entered by the court is final, and not subject to appeal; provided, however, that the total amount of time for which the expiration date shall be extended as a result of such litigation shall not exceed five (5) years. 2. Updated Park Fee Requirement . Section 12(a)(2) of the Development Agreement and Section 1.3.1 of Exhibit E-1 to the Development Agreement are each amended and restated in their entirety to read as follows: Parks and Recreation Impact Fee (SSFMC, Chapter 8.67; Ordinance 1520- 2016). The City has adopted a “Parks and Recreation Impact Fee” to maintain park service levels and provide adequate parks and recreational services and facilities to residents of the city. An Owner shall pay the Parks and Recreation Impact Fee, as described in Chapter 8.67 of Title 8 of the Municipal Code, to the extent applicable to the phase of the Project to be developed by such Owner . 3. Updated Fee Estimate. Exhibit E-2 to the Development Agreement is amended such that the tenth row of the second table counting from the top is amended and restated to state “Parks and Recreation Impact Fee (Section 12(a)(2) of DA)” in the Fee Category column, “$1.12 per GSF” in the Rate column, [“____________”] in the All Phases Fee columns, and [“$528,463.04”] in the Phase 1 Fee column. 4. Effective Date. Pursuant to Section 19.60.140 of the City’s Municipal Code, notwithstanding the fact that the City Council adopted an ordinance approving this Second Amendment, this Second Amendment shall be effective and shall only creat e obligations for the Parties from and after the date that the ordinance approving this Second Amendment takes effect. SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT Page 4 5. Full Force and Effect . As amended by the First Amendment and this Second Amendment, the Development Agreement shall remain in full force and effect. 6. Counterparts. This Second Amendment may be executed in multiple originals, each of which is deemed an original, and may be signed in counterparts. IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day and year first above written. (Signatures appear on the following pages) SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT Page 5 CITY: CITY OF SOUTH SAN FRANCISCO By: __________________________ Name: __________________________ Its: City Manager ATTEST: __________________________ City Clerk APPROVED AS TO FORM: __________________________ City Attorney OWNERS: BMR-GATEWAY OF PACIFIC I LP By: ___________________________ Name: ___________________________ Its: ___________________________ BMR-GATEWAY OF PACIFIC II LP By: ___________________________ Name: ___________________________ Its: ___________________________ BMR-GATEWAY OF PACIFIC III LP By: ___________________________ Name: ___________________________ Its: ___________________________ BMR-GATEWAY OF PACIFIC IV LP By: ___________________________ Name: ___________________________ Its: ___________________________ DRAFT July 21, 2020 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT Page 6 A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of _______________________ ) ) County of _____________________ ) On ____________________, before me, ______________________________, a Notary Public, personally appeared ______________________________________________________, who proved to me on the basis of satisfactory evidence to be the per son(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature______________________________ (Seal) 148459296.4