HomeMy WebLinkAboutOrd. 1637-2022 (22-599)EXHIBIT A
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of South San Francisco
400 Grand Avenue
P. O. Box 711
South San Francisco, CA 94083
Exempt from recording fees per Government Code §§6103, 27383
______________________________________________________________________________
Space above this line reserved for recorder’s use
APNs: 015-023-290; 015-023-300
015-023-200; 015-023-320;
015-023-430; 015-023-190;
015-023-310
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO
AND
BMR GATEWAY OF PACIFIC I LP, BMR GATEWAY OF PACIFIC II LP,
BMR GATEWAY OF PACIFIC III LP, AND BMR GATEWAY OF PACIFIC IV LP
SOUTH SAN FRANCISCO, CALIFORNIA
Gateway Business Park Master Plan Project
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT
Gateway Business Park Master Plan Project
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT FOR THE GATEWAY BUSINESS PARK MASTER PLAN
PROJECT is dated __________ ___, 2022 (“Third Amendment”). This Third Amendment is
between BMR Gateway of Pacific I LP, formerly known as BMR-700 Gateway LP (“BMR
Gateway of Pacific I”); BMR Gateway of Pacific II LP, formerly known as BMR-750, 800, 850
Gateway LP (“BMR Gateway of Pacific II”); BMR Gateway of Pacific III LP, formerly known
as BMR-900 Gateway LP (“BMR Gateway of Pacific III”); and BMR Gateway of Pacific IV LP,
formerly known as BMR-1000 Gateway LP (“BMR Gateway of Pacific IV”); all of which are
Delaware limited partnerships (collectively “Owners” and individually “Owner”), on the one
hand, and the CITY OF SOUTH SAN FRANCISCO, a municipal corporation organized and
existing under the laws of the State of California (“City”), on the other hand. Each Owner and
the City are individually referred to herein as a “Party” and collectively referred to herein as
“Parties.”
R E C I T A L S
A. WHEREAS, Owners and City are parties to that certain Second Amended and Restated
Development Agreement (Gateway Business Park Master Plan Project) by and between
the Owners and City, dated August 31, 2018, and recorded in the Official Records of San
Mateo County on September 7, 2018, as Document Number 2018-070317
(“Development Agreement”);
B. WHEREAS, Owners and City entered into a First Amendment to the Development
Agreement, dated March 30, 2020, and recorded in the Official Records of San Mateo
County on April 10, 2020, as Document Number 2020-032850 ("First Amendment");
C. WHEREAS, Owners and City entered into a Second Amendment to the Development
Agreement, dated October 14, 2020, and recorded in the Official Records of San Mateo
County on July 19, 2021, as Document Number 2022-107511 (“Second Amendment”);
D. WHEREAS, the City has granted the following approvals for the Project, among others:
the Gateway Business Park Master Plan, most recently amended by Resolution ____; the
Phase 1 Precise Plan approved by City Council Resolution 44-2013, the Phase 2 and
Phase 3 Precise Plans approved by Planning Commission Resolution 2835-2018, and the
Phase 4 Precise Plan most recently amended by Resolution _____; and the City has
certified the Gateway Business Park Master Plan Project Environmental Impact Report
(SCH #2008062059), as supplemented by the Gateway of the Pacific 4 Density Transfer
Project Supplemental Environmental Impact Report (also SCH #2008062059); and
E. WHEREAS, in connection with the City’s amendments to entitlements for development
of Phase 4 of the Gateway Business Park Master Plan Project, Owners and City again
wish to amend the Development Agreement as set forth in this Third Amendment;
F. WHEREAS, all proceedings necessary for the valid adoption and execution of this
Second Amendment have taken place in accordance with California Government Code
sections 65864 through 65869.5, the California Environmental Quality Act, and Chapter
19.60 of the City’s Municipal Code;
G. WHEREAS, the City Council and the City Planning Commission have found that the
Development Agreement, as amended by the First Amendment, Second Amendment and
this Second Amendment, is consistent with the objectives, policies, general land uses, and
programs specified in the South San Francisco General Plan; and
H. WHEREAS, on __________ ___, 2022, the City adopted Ordinance Number ____-2022
approving and adopting this Third Amendment, and such ordinance took effect as
specified therein.
A G R E E M E N T
NOW, THEREFORE, the Parties, pursuant to the authority contained in Government
Code Sections 65864 through 65869.5 and Chapter 19.60 of the City’s Municipal Code, and in
consideration of the mutual covenants and agreements contained herein, agree as follows:
1. Project Description Amendment. Section 3(a) of the Development Agreement is
amended as follows:
The permitted uses, the density and intensity of uses, the maximum heights,
locations and total area of the proposed buildings, the development schedule, the
provisions for vehicular access and parking, any reservation or dedication of land,
any public improvements, facilities and services, and all environmental impact
mitigation measures imposed as approval conditions for the Project shall be
exclusively those provided in the Master Plan as amended (Exhibit B), the and
Phase 1 Precise Plan approved by City Council Resolution 44-2013, the Phase 2
and Phase 3 Precise Plans approved by Planning Commission Resolution 2835-
2018, the Phase 4 Precise Plan as amended by Resolution ___, the Gateway
Business Park Master Plan Project Environmental Impact Report (SCH
#2008062059), the Gateway of Pacific 4 Density Transfer Project Supplemental
Environmental Impact Report (which describes the GOP 4 Density Transfer
Project and which also has SCH#2008062059), this Agreement, and the
applicable ordinances in effect as of the 2013 Effective Date, except as modified
in this Agreement. The Project is not subject to the Gateway Specific Plan as that
Plan has been repealed by City Council Resolution No. _________. The Project
will be redeveloped in multiple phases. Each new phase of development will
adhere to the governing Municipal Code provisions applicable to the Property as
of the 2013 Effective Date (except as modified by this Agreement), as well as the
development guidelines set forth in the Gateway Master Plan Development
Standards, including the implementation of access, service and parking needs to
support each new phase of redevelopment. During each particular redevelopment
phase, each Owner will maintain existing access, service and parking needs to
support existing improvements located on portions of the Property, yet to be
redeveloped during subsequent phases. Plan details for subsequent phases will be
submitted to the City for appropriate review and approval, in the form of future
Precise Plans.
2. Vesting Provisions Amendment. Section 5 of the Development Agreement is amended
as follows:
Upon tThe City’s approval of the Master Plan as amended, the Phase 1, 2 and 3
Precise Plans, the Phase 4 Precise Plans as amended, this Agreement, and
approval of any future phase Precise Plans amendments thereto each such
approval shall be vested in each Owner and its successors and assigns for the term
of this Agreement with respect to such Owner’s parcel of Property, provided that
the successors and assigns comply with the terms and conditions of all of the
foregoing, including, but not limited to, submission of insurance certificates and
bonds for the grading of the Property and construction of improvements.
3. Community Facilities District Participation Amendment. Section 11 of the Development
Agreement is amended to add the following underlined text:
11. Assessments. Nothing herein shall be construed to relieve the Property from
common benefit assessments 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. Each Owner hereby agrees to participate in the yet to be formed South
San Francisco Industrial Area Community Facilities District (IA-CFD) at an
annual tax rate equivalent to the lesser of no more than $1.00 per gross project
square foot on the Property or such annual tax rate that applies to similarly
situated Life Sciences projects in the East of 101 Area. (Each Owner
acknowledges that the name of the IA-CFD might change prior to submission to
property owners for approval, and that each Owners’ agreement in this paragraph
will apply to the community facilities district regardless of name, as long as the
rate applicable to each Owner complies with this paragraph.)
4. Transportation Demand Management Plan Amendment. Section 12(c) of the
Development Agreement is amended as follows:
Transportation Demand Management Plan. Owners of any phases(s) of the
Project containing any redeveloped building (other than parking facilities) for
which a certificate of occupancy has been issued shall prepare an annual
Transportation Demand Management (TDM) report, and submit same to City, to
document the effectiveness of the TDM plan in achieving the goal of 35%
alternative mode usage by employees within the Project when the Project is built
out to a 1.0 FAR or less, or a graduated scale between 35% and 40% alternative
mode usage (“Targeted Alternative Mode Usage”) when the Project is built out at
between a 1.0 and 1.25 FAR or greater. The Targeted Alternative Mode Usage
will be determined as follows:
FAR Alternative Mode Usage
<1.0 35%
1.01 – 1.12 38%
>1.13 – 1.25 40%
5.Fees Applicable to Expansion Square Footage: A new section (g) is added to Section 12
of the Development Agreement as follows:
(g)Fees Applicable to Expansion Square Footage Resulting From GOP 4 Density
Transfer Project. The following fees shall be applicable to any square footage in excess of
1.25 FAR that is developed pursuant to Section 2.2 of the Master Plan, as that section was
amended pursuant to the GOP 4 Density Transfer Project.
1.Citywide Transportation Fees. The Owner of GOP 4 hereby agrees that the
Citywide Transportation Fee, as approved and adopted by the City Council
through the adoption of Resolution 120-2020 (which took effect on November 23,
2020), shall apply to the additional square footage approved for the GOP 4
Density Transfer Project. Citywide Transportation Fee shall be determined based
on the application of the formula in effect as of the time the City issues the
respective building permit for Phase 4 North Building and shall be payable prior to
the issuance of such building permit.
2.Commercial Linkage Fees. The Owner of GOP 4 hereby agrees that the
Commercial Linkage Impact Fee, as approved and adopted by the City Council
through the adoption of Ordinance No. 1560-2018 (which took effect on
November 1, 2018), shall apply to the additional square footage approved for the
GOP 4 Density Transfer Project. Commercial Linkage Impact Fees shall be
determined based on the application of the formula in effect as of the time the City
issues the respective building permit for Phase 4 North Building and shall be
payable prior to the issuance of such building permit.
3.Library Impact Fees. The Owner of GOP 4 hereby agrees that the Library
Impact Fee, as approved and adopted by the City Council through the adoption of
Resolution No. 121-2020 (which took effect on November 23, 2020), shall apply
to the additional square footage approved for the GOP 4 Density Transfer Project.
Library Impact Fees shall be determined based on the application of the formula in
effect as of the time the City issues the respective building permit for Phase 4
North Building and shall be payable prior to the issuance of such building permit.
6.Exhibit Amendments. The exhibits to the Development Agreement are amended as
follows:
a.Exhibit B, the Gateway Business Park Master Plan, is amended to incorporate the
modifications enacted by Resolution ___.
b. Exhibit C, the Gateway Business Park Phase 1 Precise Plan is deleted and is
replaced with the phrase “Exhibit C has been deleted.”
c. Exhibit D-2, the Gateway Business Park Master Plan Project EIR Mitigation and
Monitoring Program, is amended to add the Gateway of Pacific 4 Density
Transfer Project Supplemental EIR Mitigation and Monitoring Program, which
imposes additional mitigation applicable to the expansion approved for the GOP 4
Density Transfer Project.
d. Exhibit E, Applicable City Fees, is amended to add the following text just before
the heading “Exhibit E-1”. “Exhibits E-1 and E-2 reference fees and fee estimates
for the Project as originally approved at an FAR of 1.25. Additional fees shall be
due for any square footage in excess of 1.25 FAR that is developed pursuant to
Section 2.2 of the Master Plan in the same proportionate amounts as specified in
this Exhibit E for the original square footage. In addition, additional fees shall be
due as set forth in Section 12(g) of the Agreement.”
9. Effective Date. Pursuant to Section 19.60.140 of the City’s Municipal Code,
notwithstanding the fact that the City Council adopted an ordinance approving this Third
Amendment, this Third Amendment shall be effective and shall only create obligations for the
Parties from and after the date that the ordinance approving this Third Amendment takes effect.
10. Full Force and Effect. As amended by the First Amendment, the Second Amendment,
and this Third Amendment, the Development Agreement shall remain in full force and effect.
11. Counterparts. This Third Amendment may be executed in multiple originals, each of
which is deemed an original, and may be signed in counterparts.
IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day and year
first above written.
(Signatures appear on the following pages)
CITY:
CITY OF SOUTH SAN FRANCISCO
By: __________________________
Name: __________________________
Its: City Manager
ATTEST:
__________________________
City Clerk
APPROVED AS TO FORM:
__________________________
City Attorney
OWNERS:
BMR GATEWAY OF PACIFIC I LP
By: ___________________________
Name: ___________________________
Its: ___________________________
BMR GATEWAY OF PACIFIC II LP
By: ___________________________
Name: ___________________________
Its: ___________________________
BMR GATEWAY OF PACIFIC III LP
By: ___________________________
Name: ___________________________
Its: ___________________________
BMR GATEWAY OF PACIFIC IV LP
By: ___________________________
Name: ___________________________
Its: ___________________________
A Notary Public or other officer completing this certificate verifies
only the identity of the individual who signed the document to
which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of _______________________ )
)
County of _____________________ )
On ____________________, before me, ______________________________, a Notary Public,
personally appeared ______________________________________________________, who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature______________________________ (Seal)
3558631.1