HomeMy WebLinkAboutReso 81-2021 (21-326)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 81-2021
File Number: 21-326 Enactment Number: RES 81-2021
RESOLUTION APPROVING THE FIRST
AMENDMENT TO THE CONSENT, ASSIGNMENT
AND ASSUMPTION AGREEMENT BETWEEN THE
CITY OF SOUTH SAN FRANCISCO AND KR
OYSTER POINT DEVELOPER, LLC.
WHEREAS, the City and Oyster Point Ventures, LLC, a Delaware limited liability company
("OPV"), entered into a Development Agreement effective March 23, 2011 (Recorder's Document No.
2011-034324) ("Development Agreement"), to facilitate the redevelopment of that certain real property
owned and to be acquired by OPV as Developer thereunder consisting of approximately 46 acres within
the City of South San Francisco, County of San Mateo, State of California ("Property"). Capitalized
terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the
Development Agreement; and
WHEREAS, the City, OPV and Oyster Point Development, LLC a Delaware limited liability
company ("OPD"), entered into an Assignment and Assumption Agreement dated August 18, 2016
(County of San Mateo Recorder's Document No. 2016-082622), under which OPV assigned, and OPD
assumed, all of OPV's rights and obligations under the Development Agreement. Thereafter, City, OPD,
and Developer entered into a Consent, Assignment and Assumption of Development Agreement dated
June, 1, 2018 (County of San Mateo Recorder's Document No. 2018-043311), under which OPD
assigned, and Developer assumed, all of OPD's rights and obligations under the Development
Agreement, as amended on the date hereof ("Consent Agreement"); and
WHEREAS, Section 8 of the Consent Agreement relates to the formation of a community
facilities district to financing the construction and maintenance of certain public improvements and the
funding of certain City services; and
WHEREAS, the City and Developer have agreed to modify Section 8 of the Consent
Agreement to reflect changes in circumstances, including but not limited to the potential development of
property owned by the City located in the vicinity of the Project; and
WHEREAS, the City Council now desires to amend the Consent Agreement pursuant to the
terms of the First Amendment to Consent, Assignment and Assumption Agreement, which is attached
hereto as Exhibit A ("First Amendment").
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San
Francisco hereby takes the following actions:
City of South San Francisco Page 1
File Number. 21-326
Enactment Number. RES 81-2021
1. The City Council hereby approves the First Amendment in substantially the form attached as Exhibit
A, which is hereby incorporated by reference.
2. The City Manager, or his designee, is authorized to execute the First Amendment, and to make any
revisions, amendments, or modifications, deemed necessary to carry out the intent of this resolution
which do not materially alter or increase the City's obligations thereunder, subject to approval as to form
by the City Attorney.
BE IT FURTHER RESOLVED that this Resolution shall become effective immediately upon
its passage and adoption.
At a meeting of the City Council on 4/28/2021, a motion was made by Councilmember Nicolas,
seconded by Vice Mayor Nagales, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, Councilmember
Coleman, and Councilmember Flores
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Attest by ae-"1
6(r,6 /#I--. -
Rosa G a Acosta, City Clerk
City of South San Francisco Page 2
APNS: 015-010-240, -910, -920, (Space Above This Line for Recorder’s Use Only)
015-010-930, -940, -950
FIRST AMENDMENT TO CONSENT, ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS FIRST AMENDMENT TO CONSENT, ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “Amendment”) is made as of this ____ day of April 2021, by and between
the CITY OF SOUTH SAN FRANCISCO, a municipal corporation (the “City”), and KR
OYSTER POINT DEVELOPER, LLC, a Delaware limited liability company (“Developer”),
with reference to the following facts and circumstances (the City and Developer are sometimes
referred to herein collectively as the “Parties”, and each individually as a “Party”):
R E C I T A L S :
A. City and Oyster Point Ventures, LLC , a Delaware limited liability company
(“OPV”), entered into a Development Agreement effective March 23, 2011 (Recorder’s
Document No. 2011-034324) (“Development Agreement”), to facilitate the redevelopment of
that certain real property owned and to be acquired by OPV as Developer thereunder consisting
of approximately 46 acres within the City of South San Francisco, County of San Mateo, State of
California (“Property”). Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to such terms in the Development Agreement.
B. City, OPV and Oyster Point Development, LLC a Delaware limited liability
company (“OPD”), entered into an Assignment and Assumption Agreement dated August 18,
2016 (County of San Mateo Recorder’s Document No. 2016-082622), under which OPV
assigned, and OPD assumed, all of OPV’s rights and obligations under the Development
Agreement. Thereafter, City, OPD, and Developer entered into a Consent, Assignment and
Assumption of Development Agreement dated June, 1, 2018 (County of San Mateo Recorder’s
Document No. 2018-043311), under which OPD assigned, and Developer assumed, all of OPD’s
rights and obligations under the Development Agreement, as amended on the date hereof
(“Consent Agreement”).
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of South San Francisco
400 Grand Avenue
South San Francisco, CA
94080 Attn: City Clerk
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C. Section 8 of the Consent Agreement relates to the formation of a community
facilities district to financing the construction and maintenance of certain public improvements
and the funding of certain City services.
D. City and Developer seek to modify Section 8 of the Consent Agreement to reflect
changes in circumstances, including but not limited to the potential development of property
owned by the City located in the vicinity of the Project.
A G R E E M E N T :
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants
and agreements contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.
1. Incorporation. The foregoing recitals are true and correct and are incorporated
herein by this reference and expressly made a part of this Amendment for all purposes. References
to any Recital in this Amendment shall be deemed to include this reference and incorporation.
2. Amendment of Section 8 of Consent Agreement. Section 8 of the Consent
Agreement is deleted in its entirety and replaced with the following:
“(a) Developer will support City’s formation of a community facilities
district serving land within the East of 101 Area Plan boundar y and that is
established within the parameters described in the City Manager’s October 2,
2019 staff report on the topic (“E101 CFD”), at an annual tax rate equivalent
to the lesser of $1.00 per gross project square foot or such annual tax rate that
applies to similarly situated projects in the East of 101 Area. (Developer
acknowledges that the name of the E101 CFD might change prior to
submission to property owners for approval, and that Developer’s agreement
in this paragraph will apply to the community facilities district regardless of
name, as long as the rate applicable to Developer complies with this
paragraph.) Developer and the City have formed the City of South San
Francisco Community Facilities District No. 2021-01 ( Public Facilities and
Services) (“CFD No. 2021-01”) which levies a services special tax ( the
“Services Special Tax”) on property owned by the Developer within the
boundaries of CFD No. 2021-01. In the event that the E101 CFD is formed,
the City shall include in the formation documents for the E101 CFD and
recommend City Council approval of a provision that reduces Developer’s
E101 CFD tax rate each year by an amount equal to the Services Special Tax
rate for that same year for CFD No. 2021-01.
(b) City owns property adjacent to the Property, which was included in
the boundaries of CFD 2017-01 but is not included within the boundaries of
CFD No. 2021-01 (“City Property”). City is pursuing potential private
development of the City Property. If City proceeds with a plan for private
development of the City Property, City shall include in the conditions of
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approval or agreements related to the sale, lease, or development of the City
Property and recommend City Council approval of a provision for the
developer to annex the City Property to CFD No. 2021-01 or for the developer
of the City Property to provide an equivalent level of financial support for the
services to be funded by CFD NO. 2021-01. ”
3. Conflict. In the event of a conflict between terms and condition of this Amendment
and the terms and conditions of the Consent Agreement, the terms and conditions of this
Amendment shall control.
4. No Further Modification. Except as set forth in this Amendment, all other terms
and provisions of the Consent Agreement are hereby ratified and confirmed and shall be and
remain unmodified and in full force.
5. Recording. Developer shall cause this Amendment to be recorded in the Official
Records of San Mateo County, California, and shall promptly provide conformed copies of the
recorded Amendment to City.
6. Applicable Law/Venue. This Amendment 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 Amendment shall be brought only in the Superior Court of the
County of San Mateo, State of California.
7. Interpretation. All parties have been represented by counsel in the preparation and
negotiation of this Amendment, and this Amendment 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 Amendment. 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.
8. Headings. Section headings in this Amendment are for convenience only and
are not intended to be used in interpreting or construing the terms, covenants or conditions of this
Amendment.
9. Severability. Except as otherwise provided herein, if any provision(s) of this
Amendment is (are) held invalid, the remainder of this Amendment 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.
10. Counterparts. This Amendment may be executed in any number of counterparts,
each of which counterparts shall be deemed to be an original, and all of which counterparts, when
taken together, shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have entered into this Amendment as of the day and
year first above written.
CITY OF SOUTH SAN FRANCISCO
By: __________________
Mike Futrell, City Manager
ATTEST:
By:
Rosa Govea Acosta, City Clerk
APPROVED AS TO FORM:
By:
Sky Woodruff, City Attorney
[SIGNATURES CONTINUED ON NEXT PAGE.]
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[SIGNATURE PAGE CONTINUED]
KR OYSTER POINT DEVELOPER, LLC,
a Delaware limited liability company
By: Kilroy Realty, L.P.
a Delaware limited partnership,
its Sole Member
By: Kilroy Realty Corporation,
a Maryland Corporation,
its General Partner
By:
Name:
Title:
By:
Name:
Title: