HomeMy WebLinkAboutOrd. 1615-2020 (20-942)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Ordinance: ORD 1615-2020
File Number: 20-942 Enactment Number: ORD 1615-2020
ORDINANCE APPROVING A DEVELOPMENT
AGREEMENT (DA20-0001) BETWEEN THE CITY OF
SOUTH SAN FRANCISCO AND GENENTECH, INC.
FOR THE GENENTECH CAMPUS/MASTER PLAN
PROJECT IN SOUTH SAN FRANCISCO,
CALIFORNIA.
WHEREAS, in 2007, the City of South San Francisco ("City") adopted the Genentech Facilities
Ten -Year Master Plan ("2007 Master Plan") and certified the Genentech Corporate Facilities R&D
Overlay District Expansion and Genentech Master Plan Update Master EIR ("2007 MEIR") (State
Clearinghouse No. 2005072165), providing framework for land use regulations and development
capacities on an approximately 207 -acre site owned by Genentech, Inc. ("Genentech") and commonly
known as the "Genentech Campus,"; and
WHEREAS, the General Plan's Land Use Element designates the Genentech Campus site as
Business and Technology Park, with a portion of the Project Site being combined with the General Plan's
Coastal Commercial designation. The Genentech Campus site is also located in the East of 101 Area
Plan (and therein designated as Planned Industrial) an in the Genentech Master Plan (GMP) Zoning
District (Chapter 20.260 of the City of South San Francisco Municipal Code); and
WHEREAS, in response to continued and anticipated development expansion, the City,
Genentech, and Lamphier-Gregory consultants have prepared the Genentech 2020 Master Plan Update to
guide the development of the Genentech campus over a period of fifteen (15) years to create a vibrant,
transit supported, state of the art research, office, and manufacturing campus for the life sciences and that
includes zoning text amendments to Chapter 20.260 of the South San Francisco Zoning Ordinance
(collectively, "2020 Master Plan"); and
WHEREAS, on September 23, 2019, the Planning Commission and the City Council held a
joint study session to consider the draft 2020 Master Plan; and
WHEREAS, approval of the 2020 Master Plan is considered a "project" for purposes of the
California Environmental Quality Act, Pub. Resources Code §21000, et seq. ("CEQA") and the City
determined that an Environmental Impact Report was required to evaluate the impacts of the proposed
2020 Master Plan and zoning text amendment to Chapter 20.260; and
WHEREAS, a Notice of Preparation was originally issued on May 24, 2017 and a draft
environmental impact report was prepared and circulated for public review from November 8, 2019 to
December 23, 2019, and on December 19, 2019, the Planning Commission held a duly noticed public
hearing to take public comment on the draft EIR (DEIR); and
City of South San Francisco Page 1
File Number: 20-942
Enactment Number., ORD 1615-2020
WHEREAS, the City prepared written responses to comments received on the DEIR and
prepared a FEIR for circulation, which consists of the DEIR (incorporated by reference), all comments
received on the DEIR, written responses to comments received on the DEIR, and revisions to the DEIR;
and
WHEREAS, the City and Genentech have drafted a proposed Development Agreement, attached
hereto as Exhibit A ("Development Agreement") to outline the expectations and obligations of the 2020
Master Plan for a fifteen (15) year term in the Development Agreement; and
WHEREAS, the City and the Developer now wish to enter into the Development Agreement in
Exhibit A; and
WHEREAS, on October 15, 2020 the Planning Commission for the City of South San Francisco
held a lawfully noticed public hearing to solicit public comment and consider the proposed Development
Agreement, and recommended that the City Council approve the proposed Development Agreement; and
WHEREAS, the City Council held a duly noticed public hearing on November 23, 2020, to
consider the proposed Development Agreement and take public testimony; and
WHEREAS, the City Council has considered the environmental impacts of the proposed 2020
Master Plan and zoning text amendment to Chapter 20.260 by separate resolution.
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
and General Plan EIR, including all amendments and updates thereto; the South San Francisco
Municipal Code; the Genentech 2020 Master Plan Update, prepared by Lamphier-Gregory; the draft
Zoning Ordinance Amendment for Chapter 20.260 Genentech Master Plan Zoning District, the
Genentech Campus Master Plan EIR, including the Draft and Final EIR, and all appendices thereto; all
reports, minutes, and public testimony submitted as part of the City Council and Planning Commission
Joint Study Session on September 23, 2019; all reports, minutes, and public testimony submitted as part
of the Planning Commission's duly noticed December 19, 2019 meeting; all reports, minutes, and public
testimony submitted as part of the Planning Commission's duly noticed October 15, 2020 meeting; and
public testimony submitted as part of the City Council's duly noticed November 23, 2020 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:
A. The foregoing recitals are true and correct and made a part of this Ordinance.
B. The Exhibit attached to this Ordinance, the proposed Development Agreement (Exhibit A), is
incorporated by reference and made a part of this Ordinance, as if set forth fully herein.
City of South San Francisco Page 2
File Number. 20-942
Enactment Number: ORD 1615-2020
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.
D. The 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 to create a vibrant, transit supported, state of the art research, office, and manufacturing
campus for the life sciences, is consistent with the objectives, policies, general land uses and programs
specified in the General Plan, 2020 Master Plan and East of 101 Area Plan as it fulfills Genentech's
obligations to meet the policies of the 2020 Master Plan.
E. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for the Genentech Master Plan Zoning District in which the real property is located as it does
not grant special provisions for Genentech and is primarily intended to ensure compliance and
community benefits for the City.
F. The Development Agreement is in conformity with public convenience, general welfare and
good land use practice as it will strengthen the future development and the Genentech campus and fulfill
community benefits for the City, including open space, transportation infrastructure, and housing
investment.
G The Development Agreement will not be detrimental to the health, safety and general welfare
of the City as it will preserve the City abilities to manage the implementation of the 2020 Master Plan
and ensure compliance with the goals and visions set forth.
H. The Development Agreement will not adversely affect the orderly development of property
or the preservation of property valued as the Development Agreement will only pertain to the Genentech
campus and sets forth performance standards for orderly development and redevelopment.
SECTION 2. Approval of Development Agreement
A. The City Council of the City of South San Francisco hereby approves the Development
Agreement with Genentech, Inc., attached hereto as Exhibit A and incorporated herein by reference.
B. The City Council further authorizes the City Manager to execute the 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.
City of South San Francisco Page 3
File Number. 20-942
SECTION 3. Severability
Enactment Number: ORD 1615-2020
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
24th day of November 2020.
At a meeting of the City Council on 12/1/2020, a motion was made by Councilmember Matsumoto,
seconded by Councilmember Nicolas, that this Ordinance be adopted. The motion passed.
Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember
Nicolas, and Councilmember Matsumoto
Attest by �—illm L ajx--,,
�sa Govea Acosta, City Clerk
Richard Garbarino, Mayor
City of South San Francisco Page 4
EXHIBIT A – FINAL DEVELOPMENT AGREEMENT FOR CITY COUNCIL
1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
______________________________________________________________________________
(Space Above This Line Reserved For Recorder’s Use)
This instrument is exempt from recording fees pursuant to Government Code section 27383.
Documentary Transfer Tax is $0.00 (exempt per Revenue & Taxation Code section 11922, Transfer to
Municipality).
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO
AND
GENENTECH, INC.
Genentech Campus
SOUTH SAN FRANCISCO, CALIFORNIA
ADOPTED BY ORDINANCE NO. ___________
OF THE CITY OF SOUTH SAN FRANCISCO CITY COUNCIL
Effective Date: ____________
EXHIBIT A – FINAL DEVELOPMENT AGREEMENT FOR CITY COUNCIL
1
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (“Agreement”) is entered into as of
_______________, 2020 by and between Genentech, Inc., a Delaware corporation (“Developer”),
and the City of South San Francisco, a municipal corporation (“City”), pursuant to California
Government Code (“Government Code”) sections 65864 et seq. Developer and the City are
sometimes collectively referred to herein as “Parties.”
RECITALS
A. To strengthen the public planning process, encourage private participation in
comprehensive planning and reduce the economic risk of development, the Legislature of the State
of California enacted California Government Code sections 65864 et seq. (the “Development
Agreements Statute”), which authorizes the City to enter into an agreement with any person
having a legal or equitable interest in real property for the development of such property.
B. Pursuant to Government Code section 65865, City has adopted procedures and
requirements for the consideration of development agreements (South San Francisco Municipal
Code (“SSFMC”) Chapter 19.60). This Agreement has been processed, considered, and executed
in accordance with such procedures and requirements.
C. Developer has a legal and/or equitable interest in certain real property located in
the City on the approximately 207-acre site commonly known as the “Genentech Campus,” as
more particularly described and depicted in Exhibit A (“Project Site”). Developer has requested
City to enter into a development agreement and proceedings have been taken in accordance with
the rules and regulations of the City with regard to Developer’s proposed Project (as defined
below).
D. The terms and conditions of this Agreement have undergone extensive review by
Developer, City, and the City of South San Francisco City Council (“City Council”) members and
have been found to be fair, just, and reasonable.
E. The City Council believes that the best interests of the citizens of the City of South
San Francisco and the public health, safety, and welfare will be served by entering into this
Agreement.
F. This Agreement and the Project (as defined in Section ___ of this Agreement) will
be consistent with the City of South San Francisco General Plan (“General Plan”), the City’s East
of 101 Area Plan, and the Master Plan Update (as defined in Recital K).
G. Development (as defined in Section ___ of this Agreement ) of the Project Site with
the Project in accordance with this Agreement will provide substantial benefits to City and will
further important policies and goals of County. This Agreement will among other things, (1) ….,
(2) [LIST BENEFITS]
H. In exchange o f 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
3634258.1 2
“Applicable Law” (as defined in Section __ below), and therefore desires to enter into this
Agreement.
I. This agreement will eliminate uncertainty in planning and provide for the orderly
Development of the Project on the Project Site, facilitate progressive installation of necessary
improvements, provide for public services appropriate to the Development of the Project on the
Project Site, and generally serve the purposes for which development agreements under section
65864, et seq. of the California Government are intended.
J. The General Plan’s Land Use Element designates the Project Site as Business and
Technology Park, with a portion of the Project Site being combined with the General Plan’s
Coastal Commercial designation. The Project Site is also located in the East of 101 Area Plan (and
therein designated as Planned Industrial) an in the Genentech Master Plan (GMP) Zoning District
(Chapter 20.260 of the City of South San Francisco Municipal Code). On [DATE], 2020, after
duly noticed public hear ing and review by the City of South San Francisco Planning Commission
(“Planning Commission”), by Resolution No. [XXXXX], the City Council certified Genentech
Master Plan Update Environmental Impact Report (SCH# 2017052064) (“EIR”) in accordance
with the California Environmental Quality Act (Public Resources Code §§ 2100 et seq. (“CEQA”)
and the CEQA Guidelines (California Code of Regulations, Title 14, §§ 15000 et seq. The EIR
analyzed the potential environmental impacts of Development o f the Project on the Project Site.
Concurrent with its certification of the EIR, and by the same resolution, the City Council duly
adopted CEQA findings of fact, a Statement of Overriding Considerations, and a Mitigation
Monitoring and Reporting Program (“MMRP”) for the Project. The Statement of Overriding
Considerations carefully considered each of the Project’s significant and unavoidable impacts
identified in the EIR and determined that each such impact is acceptable in light of the Project’s
economic, legal, social, technological and other benefits. The MMRP identifies all mitigation
measures identified in the EIR that are applicable to the Project and sets forth a program for
monitoring or reporting on the implementation of such mitigation measures. Also on [DATE],
2020, after a duly noticed public hearing and review by the Planning Commission, by Ordinance
No. [XXXXX], the City Council duly adopted the 2019 Genentech Master Plan Update (“Master
Plan Update”), and amended Chapter 20.260 of the City of South San Francisco Municipal Code
to be consistent with the Master Plan Update (“Zoning Amendment”). The entitlements described
in this Recital K and listed on Exhibit B, as well as this Agreement, are collect ively referred to
herein as the “Project Approvals.” The Project has been designed to fulfill the Development
vision of the Project Approvals consistent with the City’s land use policies and regulations, and to
secure Developer’s ability to achieve the Development potential of the Project Site at a responsible
level of growth.
K. On [DATE], 2020, following a duly noticed public hearing, the Planning
Commission recommended that the City Council approve this Agreement. And, on [DATE], 2020,
the City Council, after conducting a duly noticed public hearing, found that this Agreement is
consistent with the General Plan and Title 20 of the SSFMC 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, on [DATE], 2020, at a duly
noticed public hearing, adopted Ordinance No. [XXXXXXX] approving and authorizing the
execution of this Agreement.
3634258.1 3
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 in
effect on the Effective Date and in consideration of the mutual covenants and agreements contained
herein, agree as follows:
ARTICLE 1
DEFINITIONS
1.1 “Administrative Agreement Amendment” shall have that meaning set forth in
Section 7.2 of this Agreement.
1.2 “Administrative Project Amendment” shall have that meaning set forth in
Section 7.1 of this Agreement.
1.3 “Affiliate” shall have that meaning set forth in Section 8.1 of this Agreement.
1.4 “Agreement” shall mean this Development Agreement.
1.5 “Applicable Law” shall have that meaning set forth in Section 6.3 of this
Agreement.
1.6 “Assessments” shall have that meaning set forth in Exhibit C.
1.7 “CEQA” shall have that meaning set forth in Recital K of this Agreement.
1.8 “City” shall mean the City of South San Francisco.
1.9 “City Council” shall have that meaning set forth in Recital D of this Agreement.
1.10 “City Law” shall have that meaning set forth in Section 6.5 of this Agreement.
1.11 “Claims” shall have that meaning set forth in Section 6.10 of this Agreement.
1.12 “CLF Account” shall have that meaning set forth in Section 3.3 of this Agreement.
1.13 “Commercial Linkage Fee” shall have that meaning set forth in Section 3.3 of this
Agreement.
1.14 “Commercial Linkage Fee Prepayment” shall have that meaning set forth in
Section 3.3 of this Agreement.
1.15 “Control” shall have that meaning set forth in Section 8.1 of this Agreement.
1.16 “Controlled” shall have that meaning set forth in Section 8.1 of this Agreement.
1.17 “Controlling” shall have that meaning set forth in Section 8.1 of this Agreement.
3634258.1 4
1.18 “Deficiencies” shall have that meaning set forth in Section 9.2 of this Agreement.
1.19 “Developer” shall mean Genentech, Inc., and any assignees pursuant to Article 8
of this Agreement .
1.20 “Development” or “Develop” shall mean the division or subdivision of land into
one or more parcels; the construction, reconstruction, conversion, structural alteration, relocation,
improvement, maint enance, or enlargement of any structure; any excavation, fill, grading, landfill,
or land disturbance; the construction of specified road, path, trail, transportation, water, sewer,
electric, communications, and wastewater infrastructure directly related to the Project whether
located within or outside the Project Site; the installation of landscaping and other facilities and
improvements necessary or appropriate for the Project; and any use or extension of the use of land.
1.21 “Development Agreements Statute” shall have that meaning set forth in Recital A
of this Agreement.
1.22 “Development Fees” shall have that meaning set forth in Section 3.2 of this
Agreement.
1.23 “District” shall mean any assessment or financing district(s) established by the City
pursuant to the Community Facilities District Act of 1982 (Mello-Roos), Government Code
Sections 53311 et seq., the Streets and Highways Code, Division 10 and 12, the Landscape and
Lighting Act of 1972, or other similar law to finance all or part of the public improvements through
the issuance of bonds and the imposition of assessments, fees, or taxes on the benefiting land,
including, but not limited to, the Property.
1.24 “E101 CFD” shall have that meaning set forth in Section 3.4(e) of this Agreement.
1.25 “Effective Date” shall have that meaning set forth in Section 2.1 of this
Agreement.
1.26 “EIR” shall have that meaning set forth in Recital K of this Agreement.
1.27 “Force Majeure Delay” shall have that meaning set forth in Section 10.3 of this
Agreement.
1.28 “Future Fee” shall have that meaning set forth in Section 5.6(b) of this Agreement.
1.29 “GDP” shall have that meaning set forth in Section 10.3 of this Agreement .
1.30 “General Plan ” shall have that meaning set forth in Recital G of this Agreement.
1.31 “Indemnitees” shall have that meaning set forth in Section 6.10 of this Agreement.
1.32 “Judgment” shall have that meaning set forth in Section 9.2 of this Agreement.
1.33 “Linkage Fee Credits” shall have that meaning set forth in Section 3.3 of this
Agreement.
3634258.1 5
1.34 “Master Plan Update” shall have that meaning set forth in Recital K.
1.35 "Mortgage" shall mean any lien of mortgage, deed of trust, or other security
interest (e.g., lease-leaseback agreement) in the Project or the Project Site given in exchange for
financing of any kind.
1.36 "Mortgagee" shall mean the beneficiary of any Mortgage.
1.37 “MMRP” shall have that meaning set forth in Recital E of this Agreement.
1.38 “Parties” shall mean the Developer and City, collectively.
1.39 “Pre-CFD Account” shall have that meaning set forth in Section 3.4(e) of this
Agreement.
1.40 “Pre-CFD Contribution” shall have that meaning set forth in Section 3.4(e) of this
Agreement.
1.41 “Periodic Review” shall have that meaning set forth in Section 10.5 of this
Agreement.
1.42 “Permissible New Fee” shall have that meaning set forth in Sect ion 5.6(b) of this
Agreement.
1.43 “Prevailing Wage Laws” shall have that meaning set forth in Section 6.11 of this
Agreement.
1.44 “Planning Commission” shall have that meaning set forth in Recital K of this
Agreement.
1.45 “Prerequisite Compliance Obligations” shall have that meaning set forth in
Section 3.3 of this Agreement.
1.46 “Project” shall mean the Development on the Project Site as contemplated by the
Project Approvals and, as and when they are issued, the Subsequent Approvals, including, without
limitation, the permitted uses, density and intensity of uses, and maximum size and height of
buildings specified in the Master Plan and in Chapter 20.260 of Title 20 of the SSFMC, and as
such Project Approvals and Subsequent Approvals may be further defined or modified pursuant to
the provisions of this Agreement.
1.47 “Project Approvals” shall have that meaning set forth in Recital K of this
Agreement.
1.48 “Project Site” shall have that meaning set forth in Recital C of this Agreement.
1.49 “Public Art Fee” shall have that meaning set forth in Section 3.5 of this
Agreement.
3634258.1 6
1.50 “Severe Economic Recession” shall have that meaning set forth in Section 10.3
of this Agreement.
1.51 “SOV” shall have that meaning set forth Section 3.11 of this Agreement.
1.52 “SSFMC” shall have the meaning set forth in Recital B of this Agreement.
1.53 “Subsequent Approvals” shall mean those certain other land use approvals,
entitlements, and permits other than the Project Approvals that are necessary or desirable for the
Project. In particular, for example and without limitation, the parties contemplate that Developer
may, at its election, seek approvals for the following: amendments of the Project Approvals; design
review approvals, unless determined not required pursuant to the further provisions of this
Agreement; improvement agreements; grading permits; demolition permits; building permits; lot
line adjustments; sewer, water, and utility connection permits; certificates of occupancy;
subdivision map approvals; parcel map approvals; resubdivisions; zoning and rezoning approvals;
preliminary and final development plans; development agreements; conditional use permits; minor
use permits; sign permits ; any subsequent approvals required by other state or federal entities for
Development and implementation of the project that are sought or agreed to in writing by
Developer; and any amendments to, or repealing of, any of the foregoing.
1.54 “Tax” and “Taxes” shall not include any generally applicable City Business
License Tax or locally imposed Sales Tax.
1.55 “TDM Plan ” shall have that mea ning set forth in Section 3.4(b) of this Agreement.
1.56 “Term” shall have that meaning set forth in Section 2.2 of this Agreement.
1.57 “TIF Account” shall have that meaning set forth in Section 3.4 of this Agreement.
1.58 “Traffic Impact Fee Credits” shall have that meaning set forth in Section 3.4 of
this Agreement.
1.59 “Traffic Impact Prepayment” shall have that meaning set forth in Section 3.4 of
this Agreement.
1.60 “Zoning Amendment” shall have that meaning set forth in Recital K of this
Agreement.
To the extent that any defined terms contained in this Agreement are not defined above, then such
terms shall have the meaning otherwise ascribed to them elsewhere in this Agreement, or if not in
this Agreement, then by controlling law, including the SSFMC.
ARTICLE 2
EFFECTIVE DATE AND TERM
2.1 Effective Date. This Agreement shall become effective upon the date the ordinance
approving this Agreement becomes effective (“Effective Date”).
3634258.1 7
2.2 Term. The term of this Agreement shall commence upon the Effective Date and
continue (unless this Agreement is otherwise terminated or extended as provided in this
Agreement) until fifteen (15) years plus one (1) day after the Effective Date (“Term”).
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 MMRP. Failure by
Developer to make any of the payments called for in this Article 3 at the times and in the amounts
specified constitutes default by Developer subject to the provisions of Article 10 of this
Agreement.
3.2 City Fees.
(a) Developer shall pay those processing, building permit, 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, and subject to Section 5.6(b),
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, as set forth on Exhibit C, and
only at those rates of such Development Fees in effect at the time of payment of the Development
Fees, provided that any such fee increase is imposed on a citywide (or East of 101 Area Plan-wide)
basis, reserving to City the discretion to increase Development Fees for different land use zoning
designations in varying amounts. The Development Fees shall be paid at the time set forth on
Exhibit C except as otherwise provided in Article 3 of this Agreement. This Section 3.2(b) shall
not prohibit City from imposing on Developer any fee or obligation that is imposed by a regional
agency or the State of California in accordance with state or federal obligations and required to be
implemented by City.
3.3 Housing Benefits.
(a) Prepayment of Commercial Linkage Fee. Developer acknowledges that the
Development Fees include the City’s Affordable Housing Commercial Linkage Fee established
pursuant to Chapter 8.69 of the SSFMC (“Commercial Linkage Fee”), which is charged on a per
square foot basis. City acknowledges and agrees that each commercial building Developed as part
of the Project constitutes a separate, individual “commercial development project” for purposes of
Chapter 8.69 of the SSFMC and this Agreement. Notwithstanding any provision of SSFMC sect ion
8.69.040(a) to the contrary, Developer shall prepay City a portion of the Commercial Linkage Fee
applicable to the entire Project, which total prepayment amount shall equal thirty million dollars
and zero cents ($30,000,000.00), shall be paid in fifteen (15) installments, and, not withstanding
3634258.1 8
any provision of this Agreement to the contrary, shall not be subject to adjustment (“Commercial
Linkage Prepayment”). City agrees that all Commercial Linkage Prepayment amounts shall,
upon payment by Developer, be deposited into a segregated account (“CLF Account”), shall not
be comingled with other funds, and shall be used in accordance with Chapter 8.69 of the SSFMC.
The CLF Account may be a separate account within City’s existing Commercial Linkage Fee fund.
City shall, upon reasonable notice, give Developer and its agents access to inspect, examine, and
copy City’s books and related documents for the purposes of auditing the CLF Account and
verifying City’s compliance with the terms and conditions of this Section 3.3(a), which access
shall also include access to City’s record keeping and accounting personnel.
(i) Developer shall pay City the Commercial Linkage Prepayment in
instalments made pursuant to the following payment schedule:
a. On or before the first (1st) anniversary of the Effective Date,
Developer shall pay City an amount equal to three million dollars
and zero cents ($3,000,000.00);
b. On or before the second (2nd) anniversary of the Effective Date,
Developer shall pay City an amount equal to one mi llion five
hundred thousand dollars and zero cents ($1, 500,000.00);
c. On or before the third (3rd) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
d. On o r before the fourth (4th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
e. On or before the fifth (5th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
f. On or before the sixth (6th) anniversary of the Effective Date,
Developer shall pay City an amount equal to four million five
hundred thousand dollars and zero cents ($4, 500,000.00);
g. On or before the seventh (7th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
h. On or before the eighth (8th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
i. On or before the ninth (9th) anniversary of the Effective Date,
Developer shall pay City amount equal to one million five hundred
thousand dollars and zero cents ($1, 500,000.00);
3634258.1 9
j. On or before the tenth (10th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
k. On or before the eleventh (11th) anniversary of the Effective Date,
Developer shall pay City an amount equal to four million five
hundred thousand dollars and zero cents ($4, 500,000.00);
l. On or before the twelfth (12th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
m. On or before the thirteenth (13th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00);
n. On or before the fourteenth (14th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00); and
o. On or before the fifteenth (15th) anniversary of the Effective Date,
Developer shall pay City an amount equal to one million five
hundred thousand dollars and zero cents ($1, 500,000.00).
(ii) Concurrent with each payment of a Commercial Linkage
Prepayment installment, Developer shall be entitled to, and City shall grant Developer, vested
Commercial Linkage Fee credits equal to the total dollar value of such installment (“Linkage Fee
Credits”). For each of the Project’s individual commercial development projects, Developer shall
pay the Commercial Linkage Fee applicable to such commercial development project, provided
that the total Commercial Linkage Fee amount applicable to such commercial development project
shall be reduced in amount equal to any Linkage Fee Credits then vested in Developer.
Notwithstanding the immediately preceding sentence, in the event City increases the Commercial
Linkage Fee amount in a manner consistent with this Agreement, then each subsequent
Commercial Linkage Fee payable by D eveloper shall be reduced through application of Linkage
Fee Credits in an amount equal to the total fee that Developer would have otherwise owed prior to
such fee increase, and the remaining fee amount (i.e., the difference between the initial fee amount
and the increased fee amount) shall be paid by Developer to the City and shall not be subject to
reduction through application of Linkage Fee Credits, provided that no provision of this
Agreement shall limit or restrict Developer’s right to request, and the City Council’s authority to
approve, an additional fee credit up to twenty-five (25%) of total remaining fee amount for
Developer’s voluntary election to construct the Project utilizing prevailing wages in accordance
with Section 8.59.080 of the South San Francisco Municipal Code in effect on the Effective Date.
(iii) In the event that Developer determines to transfer or assign all or
part of the Project or Project site to an unaffiliated third party, developer may, subject to Section
8.1 of this Agreement, transfer or assign a proportionate share of Developer’s interest in Linkage
Fee Credits to such transferee or assignee for use within the Project Site for such consideration as
3634258.1 10
Developer, in its sole discretion, determines. In such event, any portion of the Linkage Fee Credits
that are not transferred or assigned by Developer shall remain vested in Developer, and Developer
shall execute and deliver to City a copy of the instrument transferring or assigning that portion of
the Linkage Fee Credit s so transferred or assigned . In no event shall any portion of the Linkage
Fee Credit s be extinguished in the event Developer transfers or assigns all or part of the Project or
Project Site without also transferring or assigning all or part of the subject property’s proportionate
share of the Linkage Fee Credit s. For purposes of this Section 3.3(a)(iii), the phrase “proportionate
share” shall mean a share of Developer’s interest in Linkage Fee Credits that is calculated on a
dollar value per square foot basis and is equal to or less t han such dollar value multiplied by the
maximum square feet of Development authorized by the Project Approvals applicable to t he
subject property. By way of example, if the dollar value of each Linkage Fee Credit is equal to
one dollar ($1.00) per square foot, and the Project Approvals authorize a maximum of one
thousand (1,000) square feet of Development on the subject property, then that property’s
proportionate share of the Developer’s interest in the Linkage Fee Credits shall not exceed one
thousand d ollars ($1,000.00) in total value.
(iv) Developer shall make two Commercial Linkage Prepayments
totaling one million dollars and no cents ($1,000,000.00) for the purposes and subject to the
terms described in this Section 3.3(a)(iv). Developer’s payments pursuant to this Section
3.3(a)(iv) shall be in addition to the Commercial Linkage Prepayment of thirty million dollars
and no cents ($30,000,000.00) described in Section 3.3(a)(i).
(a) Developer shall make the payments described in this Section
3.3(a)(iv) in equal installments of five hundred thousand dollars
and no cents ($500,000.00). Developer shall make one payment
each with the second and third installments of Commercial
Linkage Prepayments described in Sections 3.3(a)(i)(b) and
3.3(a)(i)(c). The total second installment shall be two million
dollars and no cents ($2,000,000.00). The total third installment
shall be two million dollars and no cents ($2,000,000.00).
(b) City shall deposit the payments made pursuant to this Section
3.3(a)(iv) in the CLF Account.
(c) Developer’s payments pursuant to this Section 3.3(a)(iv) shall be
included in the calculation of Developer’s Commercial Linkage
Credits, as described in Section 3.3(a)(ii), and the Commercial
Linkage Credits resulting from the additional payment s shall be
treated in the same manner as other Commercial Linkage Credits,
as described in Sections 3.3(a)(ii) and 3.3(a)(iii), including without
limitation transferability and application against increased
Commercial Linkage Fee amounts.
(d) City shall use five hundred thousand dollars and no cents
($500,000.00) from Developer’s first installment payment pursuant
to Section 3.3(a)(i)(a) and five hundred thousand dollars and no
cents ($500,000.00) from Developer’s second installment payment
3634258.1 11
pursuant to Section 3.3(a)(i)(b) to provide financial support to a
third party to develop and administer a program exclusively in
South San Francisco to induce owners of qualifying residential
properties to add accessory dwelling units to their properties or,
where permissible under City land use regulations, to split their
lots and construct an additional dwelling, increasing the mix of
housing options available in the City and potentially the supply of
housing units affordable to low- and moderate-income households.
City shall work in good faith with Hello Housing, a California
nonprofit public benefit corporation, to develop a program meeting
the goals described in this paragraph. The final parameters of the
program shall be subject to the approval of the City Council and
Hello Housing. City shall make up to five hundred thousand and
no cents ($500,000) of Commercial Linkage Prepayment funds
available for the approved program in each of the first and second
years that the program is in operation. Appropriation of funds from
Commercial Linkage Prepayments for the approved program shall
be in the sole discretion of the City Council, with the
understanding that it is the parties’ intent that the funds be used for
Hello Housing to develop and administer the housing program
described herein.
(e) In the event that City and Hello Housing are unable to reach an
agreement on the parameters of the program described in Section
3.3(a)(iv)(d), or if Hello Housing declines or ceases to operate a
program, City and Developer shall meet and confer regarding an
alternative third party to develop and administer such a program or
to otherwise direct Developer’s payment made pursuant to this
Section 3.3(a)(iv).
3.4 Transportation Benefits.
(a) Prepayment of East of 101 Traffic Impact Fee.
(i) Developer acknowledges that the Development Fees include the
City’s East of 101 Traffic Impact Fee established pursuant to City Council Resolution No.
84-2007(“Traffic Impact Fee”), which is charged on a per square foot basis. City acknowledges
and agrees that each commercial building Developed as part of the Project constitutes a separate,
individual “research & development project” for purposes of Chapter XXX of the SSFMC and this
Agreement. Notwithstanding any provision of SSFMC section XXX to the contrary, Developer
shall prepay City a portion of the Traffic Impact Fee applicable to the entire Project, which total
prepayment amount shall equal ten million dollars and zero cents ($10,000,000.00), shall be paid
in five (5) installments, and, notwithstanding any provision of this Agreement to the contrary, shall
not be subject to adjustment (“Traffic Impact Prepayment”). City agrees that all Traffic Impact
Prepayment amounts shall, upon payment by Developer, be deposited into a segregated account
(“TIF Account”), shall not be comingled with other funds, and shall only be used in accordance
with the City’s 2001 Traffic Impact Fee Program nexus study (as updated May 6, 2005 and July
3634258.1 12
19, 2007). The TIF Account may be a separate account within City’s existing Traffic Impact Fee
fund. City shall, upon reasonable notice, give Developer and its agents access to inspect, examine,
and copy City’s books and related documents for the purposes of auditing the TIF Account and
verifying City’s compliance with the terms and conditions of Section 3.4 of this Agreement, which
access shall also include access to City’s record keeping and accounting personnel.
(ii) Developer shall pay City the Traffic Impact Prepayment in a total of
five individual installments in accordance with the follo wing payment schedule:
a. On or before the first (1st) anniversary of the Effective Date,
Developer shall pay City an amount equal to two million dollars and
zero cents ($2,000,000.00);
b. On or before the third (3rd) anniversary of the Effective Date,
Develop er shall pay City an amount equal to two million dollars and
zero cents ($2,000,000.00);
c. On or before the fifth (5th) anniversary of the Effective Date,
Developer shall pay City an amount equal to two million dollars and
zero cents ($2,000,000.00); and
d. On or before the seventh (7th) anniversary of the Effective Date,
Developer shall pay City an amount equal to two million dollars and
zero cents ($2,000,000.00).
e. On or before the ninth (9th) anniversary of the Effective Date,
Developer shall pay City an amount equal to two million dollars and
zero cents ($2,000,000.00).
(iii) Concurrent with Developer’s payment of each Traffic Impact
Prepayment instalment, Developer shall be entitled to, and City shall grant Developer, vested
Traffic Impact Fee credits equal to the dollar value of such installment (“Traffic Impact Fee
Credits”). For each of the Project’s individual commercial development projects, Developer shall
pay the Traffic Impact Fee applicable to such commercial development project, provided that the
total Tra ffic Impact Fee amount applicable to such commercial development project shall be
reduced in amount equal to any Traffic Impact Fee Credits then vested in Developer.
(iv) In the event that Developer determines to transfer or assign all or
part of the Project or Project Site to an unaffiliated third party, developer may, subject to Section
8.1 of this Agreement transfer or assign a proportionate share of Developer’s interest in part of the
Traffic Impact Fee Credits to such transferee or assignee for use within the Project for such
consideration as Developer, in its sole discretion, determines. In such event, any portion of the
Traffic Impact Fee Credits that are not transferred or assigned by Developer shall remain vested
in Developer, and Developer shall execute and deliver to City a copy of the instrument transferring
or assigning that portion of the Traffic Impact Fee Credits so transferred or assigned. In no event
shall any portion of the Traffic Impact Fee Credits be extinguished in the event Developer transfers
or assigns all or part of the Project or Project Site without also transferring or assigning all or part
of the subject property’s proportionate share of the Traffic Impact Fee Credits. For purposes of
3634258.1 13
this Section 3.4(a)(iv), the phrase “proportionate share” shall mean a share of Developer’s interest
in Traffic Impact Fee Credits that is calculated on a dollar value per square foot basis and is equal
to or less than such dollar value multiplied by the maximum square feet of Development authorized
by the Project Approvals applicable to the subject property. By way of example, if the dollar value
of each Traffic Impact Fee Credit is equal to one dollar ($1.00) per square foot, and the Project
Approvals authorize a maximum of one thousand (1,000) square feet of Development on the
subject property, then that property’s proportionate share of Developer’s interest in the Traffic
Impact Fee Credits shall not exceed one thousand dollars ($1,000.00) in total value.
(b) Transportation Demand Management Plan. The Developer shall implement
a Transportation Demand Management Plan (“TDM Plan”) to reduce the Project-related single
occupancy vehicle (“SOV”) trips and to encourage the use of public transit and alternate modes of
transportation. The TDM Plan shall be subject to City’s approval and shall be designed to ensure
that, on or before the tenth (10th) anniversary of this Agreement following the Effective Date, no
mor e than fifty percent (50%) of Project employee trips to the Project Site occur using SOV
transportation modes. City agrees that the approved TDM plan shall allow Developer to count
“remote working” arrangements (e.g., working from home) as contributing to Developer’s SOV
trip reduction obligation. Failure by Developer to meet the trip reduction goals of the TDM Plan
within the time period provided constitutes default by Developer subject to the provisions of
Article 10 of this Agreement.
(c) East of 101 Commuter Bus Service. During the Term, Developer shall use
commercially reasonable, good faith efforts to cooperate with interested third-party employers,
landowners, and lessors that do business within, or own or control real property located within, the
East of 101 Area Plan boundary in order to establish a private program pursuant to which
Develo per’s existing, private first- and last -mile commuter bus service is expanded to provide such
commuter bus service to such third-party employers, landowners, and lessors, and their respective
employees and lessees, in accordance with one or more private contracts to be entered into by
Developer and participating third-party employers, landowners, and/or lessors.
(d) Grand Avenue Flyover Design Funding. Developer shall pay City up to
seven hundred fifty thousand dollars and zero cents ($750,000) to reimburse Cit y’s reasonably
documented incurred costs of preparing feasibility studies and/or preliminary design for the
proposed Grand Avenue northbound off-ramp fl yover realignment described in section 5.1 of the
City’s Mobility Plan 20/20 in effect on the Effective Date, provided that in no event shall
Developer be required to make any such payment or portion thereof prior to January 1, 2021 and
in no event without three months prior written notice from City.
(e) East of 101 Community Facilities District Support.
(i) Develo per will support City’s formation of a communities facilities
district serving land within the East of 101 Area Plan boundary and that is established within the
parameters described in the City Manager’s October 2, 2019 staff report on the topic and attached
as Exhibit D (“E101 CFD”), provided that (i) the CFD proceeds are not used to fund first- and
last -mile commuter bus service within the East of 101 area so long as Genentech is operating
expanded first - and last-mile commuter bus service accessible to the employees of third-party East
of 101 employers in accordance with private contracts, and (ii) the Project’s maximum CFD
3634258.1 14
assessment rate is less than one dollar ($1.00) per square foot of assessable real property during
the period in which Developer is operating such expanded commuter bus service and, during the
period in which Developer is not operating such expanded bus service, the maximum CFD rate
does not exceed one dollar ($1.00) per square foot of assessable real property.
(ii) In the event t hat the E101 CFD is not finally established prior to
January 1, 2026, Developer agrees to pay City a one-time contribution of five million dollars and
zero cents ($5,000,000.00) (“Pre-CFD Contribution”), payable in five equal, annual installments
of one million dollars ($1,000,000.00) starting on the first business day in January 2026 and
continuing yearly to the first business day of January 2030.
(iii) The Parties agree to meet and confer to discuss and select one or
more transportation improvements that will be eligible for funding using monies paid by Developer
to City in accordance with subpart (ii) of subsection (e) of this Section 3.4, with the mutual intent
that such monies be used to fund improvements either similar to those described in Exhibit D or
which reduce vehicle miles traveled within the East of 101 Area Plan boundary, or both. The
Parties further agree that no such funding shall be made available for, or irretrievably committed
to, the construction of any transportation improvement that has not previously been the subject of
appropriate environmental review undertaken in accordance with all applicable requirements of
CEQA, and the statute of limitations to legally challenge such CEQA compliance action must have
previously expired without any such challenge being filed (or if timely challenged, such challenge
must have been previously and finally resolved in favor of the relevant CEQA lead agency by a
court of competent jurisdiction).
(iv) In the event that the E101 CFD is finally established or becomes
effective and the CFD tax is levied on the Project Site after January 1, 2026, then Developer shall
have no obligations arising under subpart (ii) of subsection (e) of this Section 3.4, and Developer
shall be entitled to , and City shall grant Developer, a vested E101 CFD credit equal to the total
amount of the Pre-CFD Contribution paid by Developer to City prior to such date upon which the
E101 CFD is first levied on the Project Site.
(v) City agrees that all Pre-CFD Contribution amounts shal l, upon
payment by Developer, be deposited into a segregated account (“Pre-CFD Account”), shall not
be comingled with other funds, and shall be used in accordance with subsection (e) of this Section
3.4. City shall, upon reasonable notice, give Developer and its agents access to inspect, examine,
and copy City’s books and related documents for the purposes of auditing the Pre-CFD Account
and verifying City’s compliance with the terms and conditions of this Section 3.4, which access
shall also include access to City’s record keeping and accounting personnel.
3.5 Other Community Benefits.
(a) Community Benefit Grant Program. During the Term, Developer shall
establish and implement a community benefit grant program, pursuant to which Developer shall
make individual community benefit grants directly to a variety of community organizations,
community events, or community programs operating or occurring within the City’s jurisdictional
boundary, provided that the combined total of such community benefit grants shall not exceed one
hundred thousand dollars and zero cents ($100,000.00) on an annual basis. During the first quarter
3634258.1 15
of each of year of the Term, but no sooner that the second year of the Term, Developer shall submit
to the City a report summarizing the amount and purpose of each community benefit grant
allocated during the previous year of the Term. The grant program required by this Section 3.5
shall include a mechanism whereby the City can submit grant recipient recommendations for
Developer’s consideration. The grant program required by this Section 3.5 shall be provided by
Developer in addition to Developer’s existing “Genentech Goes To Town” program.
(b) Public Open Space. Developer shall provide approximately eight tenths of
one acre (0.8-acre) of contiguous, publically accessible open space on the Project Site at a location
to be determined by Developer, in its sole discretion, provided that such open space shall be located
within one of the two eligible locations depicted on the attached Exhibit E. The required open
space shall be improved with active and passive recreation amenities (as determined by Developer
in collaboration with the City at the time of final design), the total cost of which improvements
shall be Developer’s sole obligation and in no event shall exceed a total estimated value of ten
million dollars and zero cents ($10,000,000.00). If required by applicable law, the required active
and passive recreational amenity improvements shall be subject to the review and approval of the
San Francisco Bay Conservation and Development Commission. Notwithstanding any provision
of this Agreement to the contrary, in no event shall Developer be required to provide publicly
accessible open space on any portion of the Project Site that is designated as a “Building
Opportunity” site on Figure 2-4 of the Master Plan Update. Developer shall have completed the
planning and design of the open space and recreational amenities required by this Section 3.5(b)
on or before either the fifth (5th) anniversary of this Agreement following the Effective Date, or
the issuance of the first certificate of occupancy exceeding fifty thousand (50,000) square feet of
new development within the Project Site’s Lower Campus Building B4 opportunity site (as
designated in the Master Plan Update), whichever occurs first . Construction of the open space and
related recreational amenities shall commence no later than sixth (6th) anniversary of the
Agreement following the Effective Date, or within twelve (12) months following the issuance of
the first certificate of occupancy exceeding fifty thousand (50,000) square feet of new development
within the Project Site’s Lower Campus Building BR opportunity site, whichever occurs first, and
such construction shall thereafter be diligently pursued to completion.
(c) Public Art. During the Term, Developer shall install at strategic locations
public artworks on the Project Site (including but not limited to the entrances of buildings
constructed as part of the Project) in accordance with this Section 3.5(c).
(i) The public artworks required by this Section 3.5(c) may be any
manner of art conceived and executed in any artistic discipline or medium and shall be owned in
fee by Developer or its successors in interest;
(ii) Upon installation, the public artworks required by this Section 3.5(c)
shall be visually accessible to the public from public streets, trails, or public parks;
(iii) The public artworks required by this Section 3.5(c) shall be
commissioned and paid for by Developer, and the aesthetic quality and final installat ion location
of such artworks shall be subject to consideration by the City’s Cultural Arts Commission for
recommendation to the City’s Director of Economic and Community Development for approval,
3634258.1 16
provided that the City shall have no approval authority regarding such artworks’ subject matter,
media, or artistic discipline.
(iv) The total cost of Developer’s obligation under this Section 3.5(c)
shall be limited to one dollar ($1.00) per square foot of total office, lab (research & development),
and manufacturing building space newly constructed as part the Project, which funds may be
expended by Developer to pay its direct and indirect cost of commissioning, purchasing, and
installing the public artworks required by this Section 3.5(c), including any reasonable art
consultation costs, provided that reasonably detailed records of such Developer costs and
expenditures shall be maintained by Developer during the Term and made available to City within
fourteen (14) days following City’s written request thereof;
(v) The public artworks required by this Section 3.5(c) may be installed
in phases, as the Project is developed over time, provided that Developer shall install at least one
(1) piece of public artwork for each approximately two hundred thousand (200,000) square feet of
total office, lab (research & development), and manufacturing building space newly constructed
as part the Project, with such installation(s) to occur on or before City’s issuance of the final
certificate of occupancy for each such two hundred thousand (200,000) square foot phase.
Developer shall ensure that its total cost of all the public artworks installed for each such phase
shall be equal to approximately two hundred thousand dollars ($200,000), provided that in no event
shall Developer be obligated to pay more than one dollar ($1.00) per square foot of total office,
lab (research & development), and manufacturing building space newly constructed as part the
Project.
(vi) Notwithstanding any provision of this Agreement to the contrary
except as provided in this subpart (vi), in the event that the City adopts a development impact fee,
in-lieu fee, or similar mechanism, following the Effective Date, the purpose or effect of which is
to generate funds to pay for public art (“Public Art Fee”), then the Project shall become subject
to such Public Art Fee, and Developer shall have no obligations under subparts (i) through (v) of
this Section 3.5(c), provided that such Public Art Fee is applied on a citywide basis, or is applied
throughout the City’s East of 101 Specific Plan planning area, and further provided that the Public
Art Fee for the Project shall be an amount equivalent to one dollar ($1.00) per square foot of total
office, lab (research & development), and manufacturing building space authorized by the Project
Approvals. In the event the Project becomes subject to a Public Art Fee pursuant to this Section
3.5(c)(vi), and if that Public Art Fee is an in-lieu fee, then Developer shall pay a fee as described
in this Section 3.5(c)(vi) rather than provide public art on site. In the event the Project becomes
subject to a Public Art Fee pursuant to this Section 3.5(c)(vi), Developer shall have no obligations
under subparts (i) through (v) of this Section 3.5(c). The City may fund public art proposed to be
located anywhere within the City of South San Francisco using Public Art Fee amounts paid by
Developer pursuant to this Section 3.5(c)(vi), provided such funding otherwise complies with the
ordinance or resolution adopting such Public Art Fee.
3.6 Other Developer Obligations.
(a) Mitigation Measures. Developer shall comply with the Mitigation Measures
identified and approved in the EIR for the Project, in accordance with CEQA or other law as
identified and as set forth on the MMRP.
3634258.1 17
(b) Utility Relocation and Replacement. Developer, at is sole cost, shall be
responsible for all on-site work to relocate and upgrade required utilities and infrastructure on the
Property.
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 site 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. City acknowledges that the vested rights provided
to Developer by this Agreement might prevent some City Law from applying to the Project Site
or prevailing over all or any part of this Agreement. City further acknowledges that Developer’s
vested rights to Develop the Project site include the rights provided by the Project Approvals or
the Subsequent Approvals, which may not be diminished by the enactment or adoption of City
Law. City shall cooperate with Developer and shall consider undertaking actions mutually agreed
by the Parties as necessary to ensure that this Agreement remains in full force and effect.
4.3 Availability of Public Services. To the maximum extent permitted by law and
consistent with its authority, City shall assist Developer in reserving such capacity for sewer and
water services as may be necessary to serve the Project.
4.4 Developer’s Right to Rebuild. City agrees that Developer may renovate or rebuild
all or any part of the Project within the Term should it become necessary due to damage or
destruction. Any such renovation or rebuilding shall be subject to the square footage and height
limitations vested by this Agreement, and shall comply with the Project Approvals, the building
codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA.
4.5 Expedited Plan Check Process. The City agrees to provide an expedited plan
check process for the approval of Project drawings consistent with its existing practices for
expedited plan checks. Developer agrees to pay the City’s established fees for expedited plan check
services. 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 successful and complete
Deve lopment of the Project.
4.6 Project Coordination. The City shall perform those obligations of the City
set forth in this Agreement, which the City acknowledges are essential for the Developer to
perfor m its obligations in Article 3. The City and Developer shall use good faith and diligent
efforts to communicate, cooperate and coordinate with each other during Development of the
Project.
3634258.1 18
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, to the maximum extent
permitted by law, not use its discretionary authority in considering any application for a
Subsequent Approval to revisit, frustrate, or change the policy decisions or material terms reflected
by the Project Approvals or otherwise to prevent or delay Development of the Project. 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, to the maximum extent
permitted by law, 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 any 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 this Agreement or
Applicable Law (as defined below) or with any state or federal law, regulations, plans, or policies
as set forth in Section 6.10.
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, at Developer’s expense,
shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from
time to time, at the request of Developer, use its reasonable efforts to assist Developer to ensure
the timely availability of such permits and approvals.
3634258.1 19
5.6 Assessment Districts or Other Funding Mechanisms.
(a) Existing Fees. As set forth in Section 3.2(b), above, t he 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 that apply to the Project, subject to the credits and exemptions set
forth in Article 3 of this Agreement or identified on Exhibit C and subject to the future adoption
of new fees as set forth in Section 5.6(b) below. Except for those fees and exactions listed in
Exhibit C, City is unaware of any pending efforts to initiate, or consider applications for new or
increased fees, exactions, or assessments covering the Project Site, or any portion thereof that
would apply to the Project prior to the Effective Date.
(b) Future Fees, Taxes, and Assessments. City understands that long term
assurances by City concerning fees, taxes and assessments are a material consideration for
Developer agreeing to enter this Agreement and to pay long term fees, taxes and assessments
described in this Agreement. Subject to Section 3.5(c)(vi) of this Agreement, the Project shall be
subject to future development impact fees that are duly adopted by the City following the Effective
Date (each a “Future Fee”), provided that any such Future Fee is also imposed on all new
development and land use projects on a citywide (or East of 101 Area Plan-wide) basis, reserving
to City the discretion to establish any Future Fee for different land use categories or zoning
designations in varying amounts. Each applicable Future Fee shall be paid at such time as provided
by the applicable Future Fee enabling ordinance or resolution, and the amount paid for a particular
Future Fee shall be the amount owed, based on the calculation or formula in place at the time
payment is due. City shall retain the ability to initiate or process applications for the formation of
new assessment districts or tax districts or citywide assessments or taxes covering all or any portion
of the Project Site. In the event an assessment district or tax 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 funding 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. Except as provided for in
Section 3.4(e)(i) above, Developer retains, and this Agreement shall not restrict or limit, its right
to oppose or challenge the formation or proposed adoption of any new assessment district, tax
district increased assessment, Future Fee, Future Fee increase, or Development Fee increase.
(c) Application of Fees Imposed by Outside Agencies. The City agrees to
exempt Developer from any and all fees, including but not limited to, development impact fees,
which other public agencies request the City to impose at City’s discretion on the Project or Project
Site after the Effective Date through the expiration of the Term. Notwithstanding the previous
sentence, in the event that another public agency requests that the City impose a fee, including a
development impact fee on all new development and land use projects on a citywide (or East of
101 Area Plan-wide) basis, then any such fee duly adopted by the City shall apply to the Project.
This Section 5.6(c) shall not prohibit the City from imposing on Developer any fee or obligation
that is imposed by a regional agency in accordance with state or federal obligations implemented
by the City in cooperation with such regional age ncy, or that is imposed by the State of California.
3634258.1 20
ARTICLE 6
STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
6.1 Vested Right to Develop. Developer shall have a vested right to Develop the
Project on the Project Site in accordance with the terms and conditions of this Agreement , the
Project Approvals, the Subsequent Approvals (as and when they are issued), and Applicable Law,
provided, however, that this Agreement shall not supersede, diminish, or impinge upon vested
rights secured pursuant to other Applicable Laws, including without limitation, vested rights
secured in connection with a vesting tentative subdivision map pursuant to the California
Subdivision Map Act (Gov’t. Code §§ 66410 et seq.). Nothing in this section shall be deemed to
eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals,
or to eliminate or diminish Developer’s right to have its applications for any Subsequent Approval
timely processed by City in accordance with this Agreement and Applicable Law.
6.2 Permitted Uses Vested by This Agreement. The vested permitted uses of the
Project Site; the vested density and intensity of use of the Project Site; the vested maximum height,
bulk, and size of proposed buildings; vested provisions for reservation or dedication of land for
public purposes and the location of public improvements; the general location of public utilities;
and other vested terms and conditions of Development applicable to the Project, shall be as set
forth in the vested Project Approvals and, as and when they are issued (but not in limitation of any
right to Develop ment as set forth in the Project Approvals) the vested Subsequent Approvals. The
vested permitted uses for the Project shall include those uses listed as “permitted” in the Project
Approvals, as they may be amended from time to time in accordance with 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, timing of construction, densities, design, heights, fees, exactions, and taxes in force and
effect on the Effective Date of this Agreement.
6.4 Uniform Codes. City may apply to the Project Site, at any time during the Term,
then current Uniform Building Code and other uniform construction codes, and City’s then current
design and construction standards for road and storm drain facilities, provided any such uniform
code or standard has been adopted and uniformly applied by City on a citywide basis and provided
that no such code or standard is adopted for the purpose of preventing or otherwise limiting
Development of all or any part of the Project.
6.5 No Conflicting Enactments. Developer’s vested right to Develop the Project shall
not be diminished by City approval (whether by action of the City Council or by initiative,
referendum or other means) of 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 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
3634258.1 21
accomplish any of the following results, either by specific reference to the Project or as part of a
general enactment which applies to or affects the Project:
(a) Change any land use designation or permitted use of the Project Site;
(b) Limit or control the availability of public utilities, services, or facilities, or
any privileges or rights to public utilities, services, or facilities (for example, water rights, water
connections or sewage capacity rights, sewer connections, etc.) for the Project, provided that
Developer has complied with all applicable requirements for receiving or using or receiving public
utilities, services, or facilities;
(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 Development
of all or any part of the Project in any manner;
(e) Result in Developer having to substantially delay Development of the
Project or require the issuance of additional permits or approvals by the City other than those
required by Applicable Law;
(f) Establish, enact, increase, or impose against the Project or Project Site any
fees, taxes (including without limitation general, special and excise taxes but excluding any
increased local (city or county) 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 Agree ment 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; Other City Actions Related to Project.
(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 only apply to the Project to the extent it would not
diminish Developer’s vested rights to Develop the Project.
(b) Except as authorized in Section 6.10, 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
3634258.1 22
to use that are approved or to be approved, issued or granted within the City, or portions of the
City, shall diminish Developer’s vested rights to Develop the Project.
(c) To the maximum extent permitted by law, 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
reduce the Development rights provided by this Agreement.
6.7 Environmental Mitigation. The Parties understand that the EIR and MMRP were
intended to be used in connection with each of the Project Approvals and Subsequent Approvals
needed for the Project. Consistent with the CEQA policies and requirements applicable to the EIR,
City agrees to use the EIR and MMRP in connection with the processing of any Subsequent
Approval to the maximum extent allowed by law and not to impose on the Project any mitigation
measures other than those specifically imposed by the Project Approvals , EIR, and MMRP, or
specifically required by CEQA or other Applicable Law, except as provided for in this Section 6.7.
The Parties agree that this Agreement shall not limit or expand the operation or scope of CEQA,
including Public Resources Code section 21166 and California Code of Regulations, title 14,
section 15162, with respect to City’s consideration of any Subsequent Approval. Consistent with
CEQA, a future, additional CEQA document may be prepared for any Subsequent Approval only
to the extent required by Public Resources Code section 21166 and California Code of Regulations,
title 14, section 15162, unless otherwise requested in writing by Developer. Developer specifically
acknowledges and agrees that, under Public Resources Code section 21166 and California Code
of Regulations, title 14, section 15162, City as lead agency is responsible and retains sole discretion
to determine whether an additional CEQA document must be prepared, which discretion City
agrees it shall not exercise unreasonably or delay.
6.8 Future Legislative Actions.
(a) In the event that, following the Effective Date, City amends or otherwise
updates the General Plan in effect on the Effective Date in a manner that would increase or expand
the permitted uses, the maximum floor area ratio (or any other land use density or intensity metric),
or the maximum height, bulk, and size of proposed buildings applicable to any land area that the
land use element or land use map of the General Plan in effect on the Effective Date designates as
“Business Technology Park” and which is located within the planning boundary of the East of 101
Area in effect on the Effective Date, the City shall also consider making conforming General Plan
amendments and updates applicable to that land area that comprises the Project Site and which is
designated as “Business Technology Park” under the General Plan in effect on the Effective Date.
(b) In the event that, following the Effective Date, City revises, modifies,
updates, or amends the land use designation(s) of the General Plan in effect on the Effective Date,
or of the East of 101 Area Plan in effect on the Effective Date, that are applicable to the Project
Site, or the zoning designation(s) applicable to the Project Site and in effect on the Effective Date,
such updates or amendments shall not diminish Developer’s vested rights to Develop the Project
or the Project Site , but no provision of this Agreement shall limit Developer’s right to apply for
any land use entitlement(s) for the Project Site that are consistent with, or authorized by, such
3634258.1 23
update(s) or amendment(s). Developer acknowledges, however, that the amended or updated
policies identified in the immediately preceding sentence might include requirements for permitted
development that would be in addition to any obligations of Developer under this Agreement, and
that those additional requirements would apply to Developer if Developer applies for any land use
entitlement(s) for the Project Site that are consistent with, or authorized by, any revision,
modification, update, or amendment contemplated by this subsection (b) of Section 6.8 of this
Agreement. No provision of this Agreement shall limit or restrain in any way Developer’s full
participation in any and all public processes undertaken by the City that are in any way related to
revisions, modifications, amendments, or updates to the General Plan, the East of 101 Area Plan,
or the City of South San Francisco Municipal Code.
(c) Developer acknowledges that, if it applies for any land use entitlement(s)
for the Project Site that are consistent with, or authorized by, any revision, modification, update,
or amendment contemplated by subsection (b) of this Section 6.8 of this Agreement, and that
would allow development of the subject parcel(s) in a manner that is inconsistent with, or not
authorized by, the Project Approvals, then City may be required to conduct additional CEQA
review with respect to such application in accordance with Section 6.7 of this Agreement, and, if
such application is finally approved by the City and becomes effective, such approval shall
automatically be vested under this Agreement only to the extent such approval is consistent with,
or authorized by, the Project Approvals . By way of example, if (following any required CEQA
compliance) such effective approval were to authorize Development of a structure with a floor
area ratio of 2.0, but the Project Approvals would only authorize Development of a structure with
a floor area ratio of 1.0, then Developer would automatically have the vested right to Develop said
structure with a floor area ratio of 1.0, and would automatically have the non-vested right to
Develop that same structure with a floor area ratio of 2.0 (unless, following such approval, this
Agreement is amended to vest Developer’s right to Develop such structure with a floor area ratio
of 2.0).
(d) City agrees that, if Developer applies for any land use entitlement(s) for the
Project Site that are inconsistent with, or not authorized by, the Project Approvals, then:
(i) such event shall not be a basis for amending or revisiting the terms
of the Agreement, unless Developer also applies for an amendment of this Agreement pursuant to
subsection (b) of Section 7.2 of this Agreement (i.e., a non-Administrative Agreement
Amendment), and shall no t be a basis for imposing new exactions, mitigation requirements,
conditions of approval, or any other requirement of, or precondition to, Developer’s exercise of its
Development r ights vested under this Agreement; and
(ii) the only exactions, mitigation requir ements, or conditions of
approval City may impose on such land use entitlement shall be limited to those exactions,
mitigation requirements, or conditions of approval authorized under federal, state, or local laws in
effect at the time such application is deemed complete, and shall only be imposed with respect to
those uses, densities, intensities, and other Development standards applicable to the subject
parcel(s) that are inconsistent with, or not authorized by, the Project Approvals.
3634258.1 24
6.9 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 Term (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
the term of 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.
6.10 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. In the event of any changes required by state or federal laws
or regulations, the Developer and City shall meet and confer in good faith to determine what, if
any, modifications to this Agreement and/or the Project Approvals would allow the Project and
City to comply with such state or federal law or regulation while preserving to the maximum extent
feasible the spirit and intent of the Parties in this Agreement and the Project Approvals.
6.11 Prevailing Wage. Developer and its contractors and agents shall comply with
California Labor Code Section 1720 et seq., and regulations adopted pursuant thereto, to the extent
applicable to the Project (“Prevailing Wage Laws”), and shall be responsible for carrying out the
applicable requirements of such law and regulations. 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, which approval shall not be unreasonably withheld) and hold the City, and their
respective elected and appointed officers, officials, employees, agents, consultants, and contractors
(collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense
(including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit,
judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the
foregoing collectively “Claims”) which directly or indirectly, in whole or in part, are caused by,
arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection
with, or relate to, the payment or requirement of payment of prevailing wages (including without
limitation, all claims that may be made by contractors, subcontractors or other third party claimants
pursuant to Labor Code Sections 1726 and 1781), the failure to comply with any state or federal
labor laws, regulations or standards in connection with this Agreement, including but not limited
to the Prevailing Wage Laws, or any act or omission of Developer related to this Agreement with
respect to the payment or requirement of payment of prevailing wages, whether or not any
insurance policies shall have been determined to be applicable to any such Claims. It is further
agreed that the City does not and shall not waive any rights against Developer which it 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 Agree ment.
3634258.1 25
The provisions of this Section 6.11 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 6.11 shall not apply to Claims arising solely
from the gross negligence or willful misconduct of the Indemnitees.
6.12 Timing and Review of Project Construction and Completion. Except as
expressly provided in the Project Approvals, Developer shall have the vested right to Develop the
Project in such order, at such rate and at such times as the Developer deems appropriate in the
exercise of its sole business judgment. In particular, and not in any limitation of any of the
foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of
Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider, and expressly
provide for, the timing of Development resulted in a later-adopted initiative restricting the timing
of Development to prevail over such Parties' agreement, it is the desire of the Parties hereto to
avoid that result. The Parties acknowledge that, except as otherwise provided for in the Project
Approvals, Developer shall have the vested right to Develop the Projec t on the Pro ject Site in such
order and at such rate and at such times as the Developer deems appropriate in the exercise of its
business judgment .
ARTICLE 7
AMENDMENT
7.1 Project Amendments. 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
City's 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 EIR, the amendment shall be determined to be an
“Administrative Project Amendment” and the Chief Planner or his/her 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, location or installation of utilities and other infrastructure connections or facilities that
do not substantially alter the design concepts o f the Project, and minor adjustments to the Project
Site diagram or Project Site legal description shall be treated as Administrative Project
Amendments. Any requested amendment seeking modification of or deviation from the
performance or development standards contained in the Municipal Code and which would
otherwise require a discretionary approval by the City Council, Planning Commission, or other
formal approval body shall not be treated as an Administrative Project Amendment.
3634258.1 26
(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, (ii) permitted uses of the Project Site,
(iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions, or
requirements for subsequent discretionary actions, (v) the density or intensity of use of the Project
Site or the maximum height or size of proposed buildings or (vi) monetary contributions by
Developer, shall be considered an “Administrative Agreement Amendment” and shall not,
except to the extent otherwise required by law, require notice or public hearing before the parties
may execute an amendment hereto . Administrative Agreement Amendments may be approved by
the City Manager or, in the sole discretion of the City Manager, the City Manager may refer any
proposed Administrative Agreement Amendment to the City Council for consideration and
approval or denial.
(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.
(a) 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 the Project Site or any portions thereof including, without limitation,
purchasers or lessees of lots, parcels, or facilities. Prior to any such transfer or assignment,
Developer will seek City’s prior written consent t hereof, which consent will not be unreasonably
withheld or delayed. City may refuse to give consent only if, in light of the proposed transferee’s
reputation and financial resources, such transferee would not, in City’s reasonable opinion, be able
to perform the obligations proposed to be assumed by such transferee. To assist the City Manager
in determining whether to provide consent to a transfer or assignment, the City Manager may
request from the transferee (directly or through Developer) reasonable documentation of
3634258.1 27
transferee’s understanding of and ability and plan to perform the obligations proposed to be
assumed by transferee, including without limitation obligations specifically identified in this
Agreement, the Project Approvals, the EIR and MMRP, the General Plan, the TDM Plan, and the
East of 101Area Plan. To assist the City Manager in determining whether to consent to a transfer
or assignment, the City Manager may also require one or more representatives of the transferee to
meet in person to demonstrate to the City Manager’s reasonable satisfaction that the transferee
understands and intends and has the ability to perform the obligations intended to be assumed,
including without limitation the obligations identified in the immediately preceding sentence. Such
determination will be made by the City Manager and will be appealable by Developer to the City
Council. For any transfer of all of the Property, the Developer and assignee shall enter into an
assignment and assumption agreement in substantially the form set forth in Exhibit F.
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:
(i) Any transfer for financing purposes to secure the funds necessary
for construction and/or permanent financing of the Project;
(ii) An assignment of this Agreement to an Affiliate.
(iii) Transfers of common area to a property owners association;
(iv) Dedications and grants of easements and rights of way required in
accordance with the Project Approvals; or
(v) Any leasing activity.
(b) For the purposes of this Section 8.1, “Affiliate” means an entity or person
that is directly or indirectly controlling, controlled by, or under common control or management
of or 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 or Subsequent Approval, the Parties will
cooperate in defending such action or proceeding. City shall promptly (within five business days)
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 attorneys’ fees incurred on appeal. In the event
3634258.1 28
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
attorneys’ 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.
(a) If, as a result of any administrative, legal, or equitable action or other
proceeding, all or any portion of the Agreement or the Project approvals are set aside or otherwise
made ineffective by any judgment in such action or proceeding (“Judgment”), based on
procedural, substantive or other deficiencies (“Deficiencies”), the Parties will use their respective
best efforts to sustain and reenact or readopt the Agreement, and/or the Project approvals, that the
Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise:
(i) 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.
(ii) 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 undertake
and complete Develop ment of 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.
(b) The Parties agree that this Section 9.2 shall constitute a separate agreement
entered into concurrently, and that if any other provision of this Agreement, or the Agreement as
a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties
agree to be bound by the terms of this Section 9.2, which shall survive invalidation, nullification,
or setting aside.
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
3634258.1 29
period. Upon the occurrence of a default under the Agreement, the non-defaulting party may
institute legal proceedings to enforce the terms of the Agreement or, in the event of a material
default, terminate the Agreement. If the default is cured, then no default will exist and the noticing
party shall t ake no further action.
10.2 Termination. If City elects to consider terminating the Agreement due to a material
default of Developer, then City will give a notice of intent to terminate the Agreement and the
matter will be scheduled for consideration and review by the City Council at a duly noticed and
conducted public hearing. Developer will have the right to offer written and oral evidence prior to
or at the time of said public hearings. If the City Council determines that a material default has
occurred and is continuing, and elects to terminate the Agreement, City will give written notice of
termination of the Agreement to Developer by certified mail and the Agreement will thereby be
terminated sixty (60) days thereafter.
10.3 Enforced Delay; Extension of Time of Performance. Subject to the limitations
set forth below, performance by either party hereunder shall not be deemed to be in default, and
all performance and other dates specified in this Agreement shall be extended, where delays are
due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; terrorism; epidemics; quarantine restrictions;
freight embargoes; governmental restrictions or priority; litigation and arbitration, including court
delays; legal challenges to this Agreement, the Project Approvals, Subsequent Approvals, or any
other approval required for the Project or any initiatives or referenda regarding the same;
environmental conditions that have not been previously disclosed or discovered or that could not
have been discovered with reasonable diligence that delays 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
United States Gross Domestic Product (“GDP”) published by the United States Department of
Commerce Bureau of Economic Analysis (and not 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
3634258.1 30
10.4 Legal 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 or declaratory relief the
obligations and rights of the Parties thereto. Except as provided in Section 10.1, the sole and
exclusive remedies for any default or violation of the Agreement will be specific performance or
declaratory relief. 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 attorneys ’
fees incurred by the prevailing party in the enforcement proceeding.
10.5 Periodic Review.
(a) Conducting the Periodic Review. Throughout the Term, at least once every
twelve (12) months following the Effective Date of this Agreement, City shall review the extent
of good-faith compliance by Developer with the terms of this Agreement. This review (“Periodic
Review”) shall be conducted by the Chief Planner or his/her designee and shall be limited in scope
to compliance with the terms of this Agreement pursuant to Government Code section 65865.1.
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 or transmit electronically to Developer a copy of
any staff report and documents to be relied upon in conducting the Periodic Review and, to the
extent practical, related exhibits concerning Developer’s performance hereunder.
(b) Developer Submission of Periodic Review Report. Annually commencing
one year from the Effective Date and continuing through termination of this Agreement, Developer
shall submit a report to the Chief Planner stating the Developer’s good faith compliance with terms
of the Agreement.
(c) Good Faith Compliance Review. During the Periodic Review, the Chief
Planner shall set a meeting to consider the Developer’s good-faith compliance with the terms of
this Agreement. Developer shall be permitted an opportunity to respond to City’s evaluation of
Developer’s performance, either orally at the meeting or in a supplemental written statement, at
Developer’s election. Such response shall be made to the Chief Planner. 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, such failu re shall be conclusively deemed an approval by City of Developer’s compliance
with the terms of this Agreement for the period of time since the last Periodic Review.
3634258.1 31
(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, execute and deliver to Developer (or to
any party requested by Developer) a written “Notice of Compliance,” in recordable form, duly
executed and acknowledged by City, that certifies:
(i) The Agreement is unmodified and in full force and effect, or if there
have been modifications hereto, that this Agreement is in full force and effect as modified and
stating the date and nature of such modifications;
(ii) That there are no current uncured defaults under this Agreement or
specifying the dates and nature of any such default;
(iii) Any other information reasonably requested by Developer. The
City’s failure to deliver to Developer such a Notice of Compliance within such time shall constitute
a conclusive presumption against City that this Agreement is in full force and effect without
modification, except as may be represented by Developer, and that there are no uncured defaults
in the performance of Developer, except as may be represented by Developer. Developer shall
have the right, in Developer’s sole discretion, to record such Notice of Compliance.
10.6 California Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of California. Any action to enforce or interpret this Agreement shall be
filed and heard in the Superior Court of San Mateo County, California.
10.7 Resolution 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 10.7 shall in any way be
interpr eted as requiring that Developer and City and/or City’s designee reach agreement with
regard to those matters being addressed, nor shall the outcome of these meetings be binding in any
way on City or Developer unless expressly agreed to by the parties to such meetings.
10.8 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.
10.9 Hold 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 10.9 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.
3634258.1 32
ARTICLE 11
MISCELLANEOUS
11.1 Incorporation of Recitals and Introductory Paragraph. The Recitals contained
in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated
into this Agreement as if fully set forth herein.
11.2 No Agency. It is specifically understood and agreed to by and between the Parties
hereto that: (i) the subject Project 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 herein or in any document executed in connection herewith shall be construed
as creating any such relationship between City and Developer.
11.3 Enforceability. City and Developer agree that unless this Agreement is amended
or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable
by any party hereto notwithstanding any change hereafter enacted or adopted (whether by
ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan,
zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance,
resolution or other rule, regulation or policy adopted by City that changes, alters or amends the
rules, regulations, and policies applicable to the Development of the Project Site at the time of the
approval of this Agreement as provided by Government Code section 65866.
11.4 Severability. If any term or provision of this Agreement, or the application of any
term or provision of this Agreement to a particular situation, is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this
Agreement, or the application of this Agreement to other situations, shall continue in full force and
effect unless amended or modified by mutual consent of the parties. Notwithstanding the
foregoing, if any material provision of this Agreement, or the application of such provision to a
particular situation, is held to be invalid, void or unenforceable, either City or Developer may (in
their sole and absolute discretion) terminate this Agreement by providing written notice of such
termination to the other party.
11.5 Other Necessary Acts and City Approvals. 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.
Whenever a reference is made herein to an action or approval to be undertaken by City, the City
Manager or his or her designee is authorized to act on behalf of City, unless specifically provided
otherwise by this Agreement or applicable law.
3634258.1 33
11.6 Construction. Each reference in 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.
11.7 Other 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.
11.8 Covenants Running with the Land. All of the provisions contained in this
Agreement shall be binding upon the Parties and their respective heirs, successors and assigns,
representatives, lessees, and all other persons acquiring all or a portion of the Project, or any
interest therein, whether by operation of law or in any manner whatsoever. All of the provisions
contained in this Agreement shall be enforceable as equitable servitudes and shall constitute
covenants running with the land pursuant to California law including, without limitation, Civil
Code section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a
burden upon the Project, as appropriate, runs with the Project Site, and is binding upon the owner
of all or a portion of the Project Site and each successive owner during its ownership of such
property.
11.9 Notices. Any notice or communication required hereunder between City or
Developer must be in writing, and may be given either personally, by email or 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. Notice by email transmission shall
be deemed given upon verification of receipt if received before 5:00 p.m. on a regular business
day, or else on the next business day. Such notices or communications shall be given to the parties
at their addresses set forth below:
3634258.1 34
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: ___________________
If to Developer,
to:
Genentech, Inc.
Attn: Thomas Ruby
1 DNA Way Mailstop 258A
South San Francisco, CA 94080-4990
Phone: (650) 225-3149
Email: [email protected]
With Copies to: Holland & Knight
50 California Street, #2500
San Francisco, CA 94111
Attn: Bradley Brownlow
Phone: (415) 743-6975
Email: [email protected]
11.10 Mortgagee Protection. The Parties agree that this Agreement shall not prevent or
limit Developer, in any manner, at Developer’s sole discretion, from encumbering the Project Site
or any portion thereof or any improvement thereon by any mortgage, deed of trust, or other securit y
device securing financing with respect to the Project Site (“Mortgage”). City acknowledges that
the lenders providing such financing may require certain Agreement interpretations and
modifications and agrees upon request, from time to time, to meet with Developer and
representatives of such lenders to negotiate in good faith any such request for interpretation or
modification provided such interpretation or modification is consistent with the intent and purpose
of this Agreement. Any Mortgagee of the Project Site shall be entitled to the following rights and
privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish, or impair the lien of any Mortgage on the Project Site made in
good faith and for value, unless otherwise required by law.
(b) If City timely receives a request from a Mortgagee requesting a copy of any
notice of default given to Developer under this Agreement, City shall provide a copy of that notice
to the Mortgagee within ten (10) days of sending the notice of default to Developer. The Mortgagee
shall have the right, but not the obligation, to cure the default during the remaining cure period
allowed such Party under this Agreement.
(c) Any Mortgagee who comes into possession of the Project Site, or any
portion thereof, pursuant to foreclosure of the Mortgage or deed in lieu of such foreclosure, shall
take the Project Site, or portion thereof, subject to the terms of this Agreement. Notwithstanding
3634258.1 35
any provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty
under this Agreement to perform any of Developer’s obligations or other affirmative covenants of
Developer hereunder, or to guarantee such performance; provided, however, that to the extent that
any covenant to be performed by Developer is a condition precedent to the performance of a
covenant by City, the performance thereof shall continue to be condition precedent to City’s
performance hereunder, and further provided that any sales, transfer, or assignment by any
Mortgagee in possession shall be subject to the provisions of Section 8.1 of this Agreement.
11.11 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
__ pages and five (5) exhibits which constitute in full, the final and exclusive understanding and
agreement of the parties and supersedes all negotiations or previous agreements of the parties with
respect to all or any part of the subject matter hereof. All waivers of the provisions of this
Agreement shall be in writing and signed by the appropriate authorities of City and the Developer.
The following exhibits are attached to this Agreement and incorporated herein for all purposes:
Exhibit A: Description and Diagram of Project Site
Exhibit B: List of Project Approvals
Exhibit C: Applicable Laws & City Fees, Exactions, and Payments
Exhibit D: October 2, 2019 Staff Report
Exhibit E: Depiction of Permissible Opens Space Locations
Exhibit F: Form of Assignment and Assumption Agreement
11.12 No Third Party Beneficiaries. This Agreement is intended for the benefit of the
Parties hereto and their respective permitted successors and assigns, and is not for the benefit of,
nor may any express or implied provision hereof be enforced by, any other person, except as
otherwise set forth in Section 11.10.
11.13 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.
IN WITNESS WHEREOF, this Agreement has been entered into by and between
Developer and City as of the day and year first above written.
3634258.1 36
CITY
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By: ___________________________
Name: Mike Futrell
City Manager
ATTEST:
By: ___________________________
City Clerk
APPROVED AS TO FORM:
By: ___________________________
City Attorney
DEVELOPER
GENENTECH, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
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Exhibit A
Description and Diagram of Project Site
3634258.1 C-1
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Exhibit B:
List of Project Approvals [to be completed]
• Resolution to Adopt the Draft and Final Environmental Impact Reports, Mitigation
Monitoring and Reporting Program and Statement of Overriding Considerations and
associated CEQA Findings approved by the City Council on __________by Resolution
No._________;
• Resolution to Adopt the Genentech 2020 Master Plan Update approved by the City
Council on __________by Resolution No._________;;
• Ordinance to amend Chapter 20.260 ("Genentech Master Plan Zoning District") of the
South San Francisco Municipal Code introduced by the City Council on ________by
Ordinance No.__________and second reading adopted by the City Council
on_________by Ordinance No.________;
• Development Agreement (_______) introduced by the City Council on _______ by
Ordinance No. ________and second reading adopted by the City Counil
on__________by Ordinance No._________.________.
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Exhibit C
Applicable Laws & City Fees, Exactions, and Payments
CURRENT SOUTH SAN FRANCISCO LAWS
Developer shall comply with the following City regulations and provisions applicable to
the Property as of the Effective Date (except as modified by this Agreement and the Project
Approvals).
1.1. South San Francisco General Plan. The Developer will develop the Project in a manner
consistent with the objectives, policies, general land uses and programs specified in
the South San Francisco General Plan, as adopted on October 13, 1999 and as amended
from time to time prior to the Effective Date of this Agreement.
1.2 East of 101 Area Plan. The Developer will develop the Project in a manner consistent
with the objectives, policies, general land uses and programs specified in the East of
101 Area Plan, as adopted and as amended from time to time prior to the Effective
Date of this Agreement.
1.3 2019 Genentech Campus Master Plan Update. The Developer will develop the Project
in a manner consistent with the objectives, policies, general land uses and programs
specified in the 2019 Genentech Campus Master Plan Update, as adopted and as
amended from time to time prior to the Effective Date of this Agreement.
1.3 Genentech Master Plan (GMP) Zoning District. The Developer shall construct the
Project in a manner consistent with the Genentech Master Plan (GMP) Zoning District,
City of South San Francisco Municipal Code Chapter 20.260, applicable to the Project
Site as of the Effective Date and as amended from time to time prior to the Effective
Date of this Agreement.
1.4 South San Francisco Municipal Code. The Developer shall construct the Project in a
manner consistent with the City of South San Francisco Municipal Code provisions,
as applicable to the Project as of the Effective Date (except as modified by this
Agreement, and as may be amended from time to time consistent with this
Agreement).
FEES, EXACTIONS, & PAYMENTS
Subject to the terms of Sections 3.2(b) and 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 or district taxes 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. As authorized by the applicable
Development Fee enabling ordinance or resolution as of the Effective Date of this Agreement, the
3634258.1 C-3
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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 then 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.
2.2. Impact Fees (Existing Fees). Except as modified below and as set forth in Section
____ of this Agreement, only the following existing impact fees shall be paid for net
new square footage at the earlier of (i) issuance of certificate of occupancy or (ii) the
times prescribed in the resolution(s) or ordinance(s) adopting and implementing the
fees. [LIST TO BE COMPLETED]
• Park and Recreation Impact Fee (SSMC Chapter 8.67).
• Childcare Impact Fee (SFFMC Chapter 20.310).
• Bicycle and Pedestrian Impact Fee (SFFMC Chapter 8.68).
• Public Safety Impact Fee (Resolution 97-2012).
• Commercial Linkage Fee (SSFMC Chapter 8.69).
• Sewer Capacity Fee (Resolution 39 -2010).
• East of 101 Traffic Impact Fee
• East of 101 Sewer Impact Fee
• Oyster Point Interchange Impact Fee
Planned Fees currently under review by the City of South San Francisco:
• Library Impact Fee
• Citywide Transportation Impact Fee
• Fee in lieu of Providing Public Art as Part of Project
3634258.1 C-4
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Exhibit D
October 2, 2019 Staff Report
[TO BE ADDED]
3634258.1 C-5
#79332517_v2
Exhibit E
Depiction of Permissible Open Space Locations
[TO BE ADDED]
3634258.1 C-6
#79332517_v2
Exhibit F
Form of Assignment and Assumption Agreement
WHEN RECORDED MAIL TO:
City of South San Francisco
Attn: City Clerk
400 Grand Avenue
South San Francisco, CA 94080
______________________________________________________________________________
Space Above for Recorder’s Use
Exempt from Recording Fees per Cal. Gov. Code § 6103
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (“Assignment Agreement”) is entered into to be
effective on ______,202_, by and between Genentech, Inc., a Delaware corporation
(“Assignor”), and ___________________, a _______________ (“Assignee”), and the City of
South San Francisco, a municipal corporation (“City”). Assignor and Assignee are sometimes
referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
A. Assignor and City have previously entered into that certain Development
Agreement between City and Assignor dated _________, 2020, approved by the City of South
San Francisco City Council by Ordinance No. ________ on _________, 2020, to be effective on
________________, 2020, and recorded on ______________, 2020 as Document No.
_____________, San Mateo County Official Records (“Development Agreement”) to facilitate
the development and redevelopment of t hat certain real property consisting of approximately
____ acres with the City of South San Francisco, California, which is legally described in
Exhibit ___ of the Development Agreement (“Property”). A true and complete copy of the
Development Agreement is attached hereto as Exhibit 1.
B. Assignor is the fee owner of the Property, and Assignor desires to convey its
interest in the developable, approximately ___ acre portion of the Property and more particularly
described on Exhibit 2 attached hereto (“Assigned Property”) to Assignee concurrently with
execution of this Assignment Agreement and Assignee desires to so acquire such interest in the
Assigned Property from the Assignor.
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C. Section 8.1 of the Development Agreement (“Agreement” therein) refers to
Genentech as “Developer” and provides in part that:
Developer may transfer or assign all or any portion of its interests, rights, or
obligations under the Agreement and the Project approvals to third parties
acquiring an interest or estate in the Project or any portion thereof including,
without limitation, purchasers or lessees of lots, parcels, or facilities. Prior to the
issuance of the first certificate of occupancy for the Project Site, 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 transferee. Such determination will be made by
the City Manager and will be appealable by Developer to the City Council. For
any transfer of all of the Property, the Developer and assignee shall enter into an
assignment and assumption agreement in substantially the form set forth in
Exhibit D.
D. The Parties desire to enter into this Assignment Agreement in order to satisfy and
fulfill their respective obligations under Section 8.1 of the Development Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to
Assignee, and its successors and assigns, all of Assignor’s rights, title and interest and
obligations, duties, responsibilities, conditions and restrictions under the Development
Agreement with respect to the Assigned Property and only to the extent accruing or arising on
and after the Effective Date (collectively, the “Assigned Rights and Obligations”).
2. Acknowledgement and Assumption of Obligations by Assignee. Assignee, for
itsel f and its successor and assigns, hereby acknowledges that it has reviewed, is aware of and
intends to honor its Assigned Rights and Obligations with respect to its Development of the
Assigned Property pursuant to the terms of the Development Agreement, and additionally
expressly and unconditionally assumes all of the Assigned Rights and Obligations. Assignee
agrees, expressly for the benefit of Assignor and City, to comply with, perform, and execute all
of the Assigned Rights and Obligations.
3. Release o f Assignor. Assignee and City hereby fully release Assignor from all
Assigned Rights and Obligations. Both Assignor and Assignee acknowledge that this
Assignment Agreement is intended to fully assign all of the Assigned Rights and Obligations to
Assignee, and it is expressly understood that Assignor shall continue to be obligated under the
Development Agreement only with respect to those portions of the Project Site retained by
Assignor.
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4. Substitution of Assignor. Assignee hereinafter shall be substituted for and replace
Assignor in the Development Agreement with respect to the Assigned Property. Whenever the
term “Developer” appears in the Development Agreement, it shall hereinafter include Assignee
with respect to the Assigned Property.
5. Development Agreement in Full Force and Effect. Except as specifically
provided herein with respect to the assignment and assumption, all the terms, covenants,
conditions and provisions of the Development Agreement are hereby ratified and shall remain
in full force and effect.
6. Recording. Assignor shall cause this Assignment Agreement to be recorded in
the Official Records of San Mateo County, California, and shall promptly provide conformed
copies of the recorded Assignment Agreement to Assignee and City.
7. Successors and Assigns. All of the terms, covenants, conditions and provisions
of this Assignment Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, successors and assigns.
8. Applicable Law/Venue. This Assignment Agreement shall be construed and
enforced in accordance with the laws of the State of California, without reference to choice of
law provisions. Any legal actions under this Assignment Agreement shall be brought only in
the Superior Court of the County of Santa Clara, State of California.
9. Applicable Law/Venue. This Assignment Agreement shall be construed and
enforced in accordance with the laws of the State of California, without reference to choice of
law provisions. Any legal actions under this Assignment Agreement shall be brought only in
the Superior Court of the County of Santa Clara, State of California.
10. Interpretation. All parties have been represented by counsel in the preparation
and negotiation of this Assignment Agreement, and this Assignment Agreement shall be
construed according to the fair meaning of its language. The rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be employed in
interpreting this Assignment Agreement. Unless the context clearly requires otherwise: (a) the
plural and singular numbers shall each be deemed to include the other; (b) the masculine,
feminine, and neuter genders shall each be deemed to include the others; (c) “shall,”
“will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; and (e)
“includes” and “including” are not limiting.
11. Severability. Except as otherwise provided herein, if any provision(s) of this
Assignment Agreement is (are) held invalid, the remainder of this Assignment Agreement shall
not be affected, except as necessarily required by the invalid provisions, and shall remain in
full force and effect unless amended or modified by mutual consent of the parties.
12. Counterparts. This Assignment Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all of which, when
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taken together, shall constitute one and the same instrument, with the same effect as if all
of the parties to this Assignment Agreement had executed the same counterpart.
13. City Consent . City is executing this Assignment Agreement for the limited
purpose of consenting to the assignment and assumption and clarifying that there is privity
of contract between City and Assignee with respect to the Development Agreement.
14. Effective Date. The Effective Date of this Assignment Agreement shall be the
date upon which Assignee obtains fee title to the Assigned Property by duly recorded deed
(“Effective Date”).
IN WITNESS WHEREOF, Assignor, Assignee and City have entered into this Assignment
Agreement as of the date first written above.
ASSIGNOR:
GENENTECH INC.,
a Delaware Corporation
By:
Signature of Person executing the Agreement on
behalf of Assignor
Name:
Title:
ASSIGNEE:
[INSERT NAME OF ASSIGNEE]
By:
Signature of Person executing the Agreement on
behalf of Assignee
Name:
Title:
CITY:
CITY OF SOUTH SAN FRANCISCO,
a Municipal Corporation
3634258.1 C-10
#79332517_v2
By:
Signature of Person executing the Agreement on
behalf of City
Name:
Title:
Approved as to form by:
By:
Signature of Person approving form of the
Agreement on behalf of City
Name:
Title: