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HomeMy WebLinkAboutReso 66-2006 RESOLUTION NO. 66-2006 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING THE MEMORANDUM OF UNDERSTANDING BETWEEN FAIRFIELD RESIDEN- TIAL, LLC, AND THE CITY OF SOUTH SAN FRANCISCO WHEREAS, the City Council for the City of South San Francisco approved plans subInitted by Fairfield Residential, LLC (hereinafter "Developer") for construction of South San Francisco Transit Oriented Development Project (hereinafter "Project"), a mixed-use development, consisting of 360 residential dwellings and 23,000 square feet of retail space on an approxilnately 8.48 acre vacant site located east and west of McLellan Drive, between EI Camino Real and the South San Francisco BART station (hereinafter "Property"); and WHEREAS, following cOInplaints fro In residents regarding the color of the buildings constructed as part of the developlnent, City staff conducted an inspection of the Project on October 21, 2005, and discovered several inconsistencies between the approved plans and actual construction; and WHEREAS, City Staff have been working with Developer's representatives and meInbers of the Fairfield Subcommittee (hereinafter "Subcolnmittee") to negotiate modifications and corrective actions to be made to the Project, so as to restore the Project's consistency with the approved plans, as much as possible; and WHEREAS, to this end, City staff, in consultation with Developer's representatives and the Subcommittee, has prepared the attached Memorandum of Understanding for review and approval by the City Council; and WHEREAS, the attached MeInorandum of Understanding provides that Developer shall make modifications and corrections, as enumerated therein; that Developer shall provide City with a Letter of Credit in the amount of two Inillion dollars ($2,000,000.00); and that City shall agree to process Developer's applications for Certificates of Occupancy, subject to previously executed Conditions of Approval and all applicable Code provisions and requirements. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco does hereby: 1. Approve the Memorandum of Understanding as attached hereto as Exhibit A, and incorporated herein by reference; 2. Authorize the City Manager to sIgn, on behalf of the City, the attached Memorandum of Understanding. * * * * * I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a special meeting held on the 16th day of August 2006 by the following vote: AYES: Councihnelnbers Mark N. Addiego, Pedro Gonzalez and Karyl Matsumoto, Vice Mayor Richard A. Garbarino and Mayor Joseph A. Femekes NOES: ABSTAIN: ABSENT: ATTEST: MEMORANDUM OF UNDERSTANDING REGARDING CORRECTIVE ACTIONS TO BE MADE TO CONSTRUCTION OF THE FAIRFIELD RESIDENTIAL TRANSIT ORIENTED DEVELOPMENT PROJECT LOCATED IN SOUTH SAN FRANCISCO This Memorandum of Understanding is entered into this _ day of August, 2006, by and between FAIRFIELD RESIDENTIAL, LLC (hereinafter "Developer"), and the CITY OF SOUTH SAN FRANCISCO (hereinafter "City"). RECIT ALS WHEREAS, Developer proposed, and subInitted to the City Planning COlmnission for review and approval, an application to construct the South San Francisco Transit Oriented Development Project (hereinafter "Project"), a mixed-use development, consisting of 360 residential dwellings and 23,000 square feet of retail space on an approximately 8.48 acre vacant site located east and west of McLellan Drive, between EI Camino Real and the South San Francisco BART station (hereinafter "Property"); and WHEREAS, on January 14,2004, upon the recommendation of the Planning COlnInission, the City Council for the City of South San Francisco approved plans presented by Developer for the development of the Project; and WHEREAS, on February 11, 2004, the City and Developer executed a Development AgreeInent for the development of the Project, which incorporated in Exhibit B of the Development AgreeInent, the January 14, 2004 plans approved by the City Council; and WHEREAS, the City and Developer executed Conditions of Approval, incorporated into the Development AgreeInent as Exhibit E, requiring that the Project be constructed in substantial compliance with the plans approved by the City Council; and WHEREAS, an on-site inspection conducted by City staff and the Developer's architect on October 21,2005, revealed several inconsistencies between the approved plans and actual construction; and WHEREAS, at a Ineeting between the City and Developer held on April 6, 2006, Developer acknowledged several inconsistencies in the design and construction of the Project, and agreed to make corrections and Inodifications to the Project; and WHEREAS subsequent Ineetings have resulted in the City requesting additional enhancements beyond those in the approved plans, and Developer has agreed to complete them. NOW, THEREFORE, IT IS AGREED that in consideration of the foregoing Recitals, the Developer and the City (collectively, "Parties") agree as follows: 1. Prior to issuance of additional permits or a Certificate of Occupancy, Developer agrees to Inake modifications to the Project as indicated in this Memoranduln of Understanding (MOU). Except as otherwise stated, Developer shall diligently create a Inock up of the proposed Inodifications on a portion of the building, prior to Inodifying the entire Project. Each Inock up shall be approved by the City before Developer proceeds with Inodification on the entire project. The City shall review each Inock up within 10 days of notice by Developer. Developer does not have any right under this agreement to undertake any Inodifications that require a mock up, and that have not been presented to, and approved by the City. Except as otherwise stated, City review and approval of the Inock ups will be conducted by the Fairfield SubcOlnmittee. 2. Modifications to the Project shall be cOInpleted as indicated in this MOU, including subparagraphs 2.1 through 2.18. The design iteIns identified as needing to be mocked up shall be presented to the City in a Inock up form, and completed throughout the entire Project within 90 days of City's approval of each Inock up. Since tiIne is of the essence, it is agreed that all of the Inock ups listed below shall be completed in a diligent Inanner after execution of this MOU, with the objective of cOInpleting alllnodifications within 180 days, subject to delays in City approval of such mock ups or Force Majeure: 2.1 Color Palette. Developer shall, at their sole cost and expense, repaint exterior surfaces of the buildings on both the East and West parcels in accordance to the proposed color scheIne #2 presented to the City in Developer's Design Revisions Packet (2nd SubInittal) dated July 18, 2006. No mock up shall be required for this item. 2.2 Awnings. Awnings shall be permanently affixed to the building in a manner that can withstand City's strong winds, which can reach 70 miles per hour. Awnings shall be affixed in a manner approved by the City's Building Official. Awnings shall be of a dark green color, consistent with those installed at the Trader Joe's portion of the Project, and shall be made froln the San Jose Awning Company's weather-resistant vinyllnaterial, as proposed by Developer in Developer's letter dated June 19, 2006. A mock up of this item shall be required. 2.3 Recessed Windows. Developer shall install a rounded foam infill that will "frame" the window inside the recess and extend beyond the edge of the recess on to the exterior wall, as proposed in Developer's Design Revisions Packet (2nd Submittal) dated July 18, 2006. Two mock up options of the ground-level windows along the wainscot shall be required. For the recessed windows above the ground level, two Inock up options, one with a duel window sill and window surround trim, as presented at the Fairfield Subcommittee Ineeting on August 16, 2006, and one with the surround trim and no window sill, shall be presented for review and approval by the City. 2.4 Corner Column Treatment. For the comer column windows, designated as Type "1" on the map attached hereto as Exhibit B, Developer shall install a tinted glass and spandrel comer treatlnent that provides the appearance of a glass comer frOln the top to the bottOln of the colulnn, in a Inanner siInilar to the window system illustrated in the January 14,2004 renderings approved by the City Council. Prior to creation of the mock up, Developer shall submit drawings depicting the proposed modification and City shall review and comments on said drawings with 4 business days. Thereafter, pursuant to Paragraph 1 of this MOU, Developer shall present a mock up for City approval prior to installing the window systeIn on all of the comer colulnns. 2.5 Entryways. All entryways facing EI Camino Real, McLellan Drive, and the Parkette, shall be replaced to reflect the "storefront" entryways depicted in the renderings approved by the City Council on January 14, 2004. The windows and doors at these entryways shall be the smne height, and shall be adjacent to one another such that there is no exterior wall surface or stucco between the windows and doors. No Inock up of this iteIn shall be required. 2.6 Door Jambs & Hinges. Door jmnbs and hinges on any exterior doors along the development perimeter, specifically along McLellan, EI Camino Real, BART Plaza, and the Parkette, and all balcony doors throughout the developlnent, which have been installed in such a manner that the door swings outward instead of inward, shall be reInoved and installed, such that the hinges are not accessible from the outside, and the doors open into the building. No mock up of this iteIn shall be required. 2.7 Guardrails on Stoops. Developer shallInodify the guardrails on stoops such that all guardrails extend beyond the bottom step and tenninate into the back of the pilaster where ever possible. To the extent this requires railings to be moved outward so that they are aligned with the pilasters, an additional handrail shall be installed that extends over the stairs and tenninates by curving back into the guardrail at the both the top and bottoln step. For guardrails where the bottOln step is adjacent to the pilaster, Developer Inay propose modifications of landing to allow the step to be Inoved back such that the railing can satisfy code requirements, or Developer may request a waiver of the requirement from the Chief Building Official, the issuance of which shall be in the sole discretion of the Chief Building Official. A mock up of this item shall be required. Developer shall present Inultiple color options for the guardrails, which will be presented to Council members Matsumoto and Gonzales for review and approval. 2.8 Balcony Doors and Windows. Developer shall replace the currently installed balcony doors and windows along EI Camino Real and McLellan, with the storefront doors and windows that are to be installed in the street-level entryways. No mock up of this iteIn shall be required. 2.9 Bowed Railings. Developer shall install bowed railings on the balconies along McLellan Drive, EI Cmnino Real, the Parkette and the BART Plaza. The balcony railings shall have vertical rails, but shall not bow in the "teardrop" shape. The bowed railings shall be white. A Inock up of this item shall be required. 2.10 Balcony Railings. With regards to other portions of the Project that do not face McLellan Drive, EI Cmnino Real, the Parkette or the BART Plaza, Developer shall replace the currently installed balcony railings with railings that are flush with the building. Railings shall not be installed using brackets affixed to the exterior walls. 2.11 Townhouse Drain. Developer shallInodify the drain along the townhouse wall facing McLellan Drive, such that the bend in the drain at the top of the drain, closer to the roof, rather than above the street-level window. For aesthetic purposes, the bend in the drain shall be as near to the roof as possible, and the drain shall be painted to match the approved exterior color scheIne. 2.12 Street Light Fixtures. Developer shall install black LUInec Serenade DSX Series street lights along McLellan Drive and in the Parkette. Model number S56C2-FNI0 shall be installed along McLellan. Model nUInber S55CI-FNI0 shall be installed in the Parkette. No mock up of this item shall be required. 2.13 Wall Light Fixtures. Developer shall present proposals for City approval of the type of light fixtures to be installed on exterior walls on McLellan, EI Camino Real, and the Parkette. Fixtures shall preserve the old-fashioned character of the street lights to be installed. Fixtures shall have a reflective shield, or other device to prevent light from shining directly into the residences above. Wall fixtures along McLellan should be raised above where they are currently installed. Pursuant to Paragraph 1 of this MOU, Developer shall present a Inock up of proposed fixtures for City approval prior to installation of new fixtures throughout the development. 2.14 Lights Fixtures Under Awnings. Developer shall install light fixtures underneath the awnings, that adequately illulninate the stoops and entryways. To the extent possible, the light fixtures should be installed in such a manner that the fixtures themselves are not visible froln the nearest street or sidewalk. Developer shall present Inultiple, decorative fixtures for City review and selection, prior to installing the fixtures throughout the Proj ect. 2.15 Tree Grates and Guards. Developer shall paint the installed tree grates black. Tree guards, of a design similar to the M-5 base and M-6 top, as presented in the Developer's Design Revisions Packet (2nd Submittal) dated July 18, 2006, shall be installed throughout the Project. No Inock up of this item shall be required. 2.16 Additional Landscaping. Developer shall complete landscaping details in accordance with the plans approved by the City Council. Landscaping shall be installed with consideration to the climactic conditions of South San Francisco. Damaged or dead landscaping shall be diligently replaced at Developer's sole cost and expense. No Inock up of this iteIn shall be required. 2.17 Parking Spaces. Developer shall ensure that the nUInber of parking spaces provided complies with plans approved by the City Council and incorporated in to the Developlnent AgreeInent in Exhibit B. To the extent that parking garages, as constructed, cannot safely accolnlnodate the required number of parking spaces, Developer shall be responsible for proposing a plan, subject to City approval, for the necessary reInaining spaces. No mock up of this item shall be required. 2.18 Window Treatment on Pedestrian Access Columns. For the windows on pedestrian access colulnns, designated as Type "2" on the map attached hereto as Exhibit B, Developer shall install a trim around the windows. A mock up of this iteIn shall be required. 3. In recognition of Developer's promise of full cOInpliance with this MOU, and upon (1) issuance of a Letter of Credit in accordance with Paragraph 4, and (2) presentation of detailed Inock ups of each design element listed in subparagraphs 2.1 through 2.18, City agrees to process Developer's cOlnpleted applications for Certificates of Occupancy for all retail space and residential units located on the west side of McLellan Drive, subject to previously executed Conditions of Approval and all applicable Code provisions and requirements. 4. Developer shall obtain and deliver to the City a valid and properly executed Letter of Credit from Developer's financial institution authorizing the City to withdraw up to two Inillion dollars ($2,000,000.00) from Developer's account in the event Developer fails to comply with the ten11s, conditions, or requireInents of this MOU. The City shall not withdraw any funds against the Letter of Credit until thirty (30) days after providing Developer with written notice of default. The Letter of Credit shall be of the form and contain alllnaterial provisions of the draft Letter of Credit attached to this AgreeInent, and incorporated herein, as Exhibit A. 5. With regard to all other residential dwelling units yet to be cOlnpleted, City agrees to consider and process Developer's completed applications for necessary additional building permits and Certificates of Occupancy, subject to previously executed Conditions of Approval and applicable Code provisions, however, Developer shall not be entitled to receive any Certificates of Occupancy beyond the 100th Certificate of Occupancy issued for the East parcel, until the window treattnents described in subparagraphs 2.4 and 2.18 have been approved and installed. 6. Nothing in this MOU should be interpreted to relieve Developer of the requirements of any applicable Code provisions or other obligations under the previously executed Conditions of Approval, as incorporated into the Development Agreement in Exhibit E. 7. Developer agrees to indeInnify, defend with counsel reasonably acceptable to the City, and hold hannless the City and its officials, officers, employees, agents, contractors, consultants, and volunteers frOln and against any and all losses, liability, claiIns, suits, actions, dmnages, and causes of action arising out of any personal injury, bodily injury, loss of life, or dmnage to property, or any violation of any federal, state, or Inunicipallaw or ordinance, to the extent caused, in whole or in part, by acts or Olnissions of Developer or its eInployees, subcontractors, or agents, in connection with work perfonned pursuant to this MOU or previously executed agreements between the Parties. 8. This MOU Inay be amended only by a written instrument executed by all parties hereto. 9. The failure of any party to insist on strict cOlnpliance with any of the terms, covenants, or conditions of this MOU by another party hereto shall not be deeIned a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at anyone tiIne or times be deeIned a waiver or relinquishment of that right or power for all or any other times. 10. Each person executing this agreement on behalf of an entity represents that he has full power and authority to so execute this doculnent. The Parties have executed this Memoranduln of Understanding as of the date first noted above. FAIRFIELD RESIDENTIAL, LLC CITY OF SOUTH SAN FRANCISCO By: Title: APPROVED AS TO FORM Steven T. Mattas City Attorney 820125v7;405.128 Letter of Credit [MUST BE SUBMITTED ON BANK'S LETTERHEAD] IRREVOCABLE # City of South San Francisco Attention: Barry M. Nagel, City Manager City Manager's Office 400 Grand Avenue South San Francisco, CA 94080 DATE: , 2006 EXPIRATION: Perpetual (see conditions for termination described below) By order of our clients, Fairfield Residential, LLC, we hereby issue in your favor this Irrevocable Standby Letter of Credit for any SUIn or sums not exceeding Two Million and zero/hundredths dollars ($2,000,000.00) which is available against your draft(s) at sight on [Insert nmne and address of banking institution issuing letter], when accompanied by a statement signed by a purportedly authorized representative of the Office of the City Manager, City of South San Francisco, CA certifying the following: 1. Fairfield Residential is in default of anyone of the provisions established by that certain "MeInorandum of Understanding Regarding Corrective Actions To Be Made To Construction Of The Fairfield Residential Transit Oriented Development Project Located In South San Francisco" ("AgreeInent") entered into between the City of South San Francisco and Fairfield Residential (collectively, "the Parties") and dated the day of , 2006, and has failed satisfactorily to perform the tenns, covenants and conditions contained therein. 2. Proceeds of any draft drawn on this Letter of Credit will be used solely for the corrective purposes and interests described in said MeInorandum of Understanding. All drafts must be presented at the counters of the [insert bank name and address], and must include the statement "Drawn on the, Letter of Credit Number ." Partial and multiple drawings are permitted. Office of the City Manager, City of South San Francisco Letter of Credi t # Page 2 This Letter of Credit shall reInain in full force and effect in perpetuity without expiration until the completion, including review and approval by the City, of all requireInents listed in Paragraph 2 and subparagraphs of that certain "MeInoranduln of Understanding Regarding Corrective Actions To Be Made To Construction Of The Fairfield Residential Transit Oriented Development Project Located In South San Francisco," incorporated herein by reference. We hereby undertake that all drafts drawn hereunder will be duly honored by us if drawn and presented in accordance with the terms and conditions stated in this Letter of Credit. This Letter of Credit is subject to the Uniform CustOlns and Practice for Doculnentary Credits (1993 Revision, International Chmnber of COInmerce, Publication Number 500.) In addition, the undersigned hereby stipulates and agrees that no change, extension of time, alteration or additions to the tenns of the Agreement or to the work to be perfonned thereunder or the specifications accolnpanying the same shall in any way affect its obligations on this Letter of Credit, and it does hereby waive notice of any such change, extension of tilne, alteration or addition to the tenns of the Agreement, the work or to the specifications. If suit is brought to enforce this guarantee, the prevailing party shall be entitled to receive in addition to the face mnount of this Letter of Credit, its costs and expenses and fees, including attorney fees, all to be taxed as costs and included in any judg}nent rendered. The guarantee inures to and binds the successor and assigns of the parties. Sincerely, Executed by [insert bank intuition] this day of , 2006 Bank N mne Signature of Authorized Agent Printed Name of Authorized Agent Map Identifying Types of Corner Columns (Three Pages) NORTH RFl AIL i-;..) COIVlPOSIT~.SITE REFERENCE PLAN \~~~) SGAtI . , i ~ I" I I ~Ll : , '\\ EAST SITE SiTE \ .,:.:i:1Hen.!lIi EAST SITE Fairfield Residential WFS I SII [ PLAN REVIfW Ill-VISIONS 'L COMPOSITE SITE REFERENCE PLAN MAY 21. 2004