Loading...
HomeMy WebLinkAboutReso 25-2007 RESOLUTION NO. 25-2007 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERIM PERFORMING ARTS FACILITY OPERATING AGREEMENT WITH MYERS PENINSULA VENTURE, LLC WHEREAS, On October 11, 2006, the City Council of the City of South San Francisco adopted Resolution 82-2006, approving mnendlnents to the Terrabay Specific Plan and a 2006 Terrabay Phase III -Only Precise Plan ("2006 Project"), which revised an approved Precise Plan for development of Phase III of the Project Property previously approved in 2000 ("2000 Project") to allow, mnong other things, the construction of two office towers instead of one. The Terrabay Specific Plan and conditions of approval for the 2000 Project required the Developer to include within the Project Property a perfonning arts facility for the use of the City and the public ("Performing Arts Facility"). The conditions of approval for the 2006 Project Inaintained and refined the Perfonning Arts Facility requirelnent; and WHEREAS, Condition of Approval A.16 of Resolution 82-2006 required the following regarding the Perfonning Arts Facility: "An 'operating agreement' between the City and the Developer and his successors and assigns for the use of the Performing Arts Facility shall be executed prior to issuance of any building or grading pennits for any phase of the 2006 Project. The operating agreement at a Ininimuln shall stipulate that the facility is for use of the City, civic groups and performing arts groups free of charge. Square footages of uses such as stage, seating and storage shall be stipulated in the agreement. The hours and days the facility shall be available to the aforementioned groups shall also be stipulated in the agreelnent;" and WHEREAS, Condition of Approval A.I7 of Resolution 82-2006 required the following regarding the Perfonning Arts Facility: "A Ininimuln of eight dedicated theatre lights and a dedicated theatre control booth as well as a theatre sound systeln shall be provided in the perfonning arts facility for exclusive use of the performing arts and civic groups as stipulated in the operating agreelnent. The performing arts facility shall be developed in consideration of acoustical performance. The seating shall be flexible and the chairs shall be a minimum of a three (3) hour comfort rating;" and WHEREAS, Myers Peninsula Venture, LLC ("Developer") has submitted an application for a grading permit to begin development of the first office tower approved as part of the 2006 Project. The City and Developer have been negotiating in good faith the tenns of the operating agreement required by Conditions of Approval A.16 and A.I7 but have not reached a final agreement on some operational and other details. Execution of the operating agreement is a precondition of issuance of the grading permit. At the recommendation of the City Council Subcommittee on the Terrabay Performing Arts Facility, an Interim Operating Agreement ("Agreelnent"), attached as Exhibit A, has been prepared to allow processing of the grading permit application for the first tower approved as part of the 2006 Project, subject to the conditions and lilnitations set forth in the Agreelnent; and WHEREAS, under the tenns of the Interim Operating Agreelnent, a final operating agreement and the construction and operation of the Perfonning Arts Facility would be required for the 2006 Project. The City's approval of the Agreelnent specifically requires the execution of a final operating agreelnent for the Perfonning Arts Facility, which Inust Ineet all of the requirelnents of, contain all of the information listed in, and ensure construction of a Performing Arts Facility that satisfies the description provided in Conditions of Approval A.I6 and A.I7 ("Final Operating Agreelnent"). The Agreement would be recorded against the Project Property to ensure satisfaction of all requirelnents; and WHEREAS, the City Council has reviewed the Agreelnent and determined that it satisfies the tenns of Conditions of Approval A.I6 and A.I7 and ensures that all of the requirements related to the Perfonning Arts Facility will be met. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby authorizes the Interim Performing Arts Facility Operating Agreement between the City of South San Francisco and Myers Peninsula Venture, LLC. The Council's approval and detennination that the Agreelnent satisfies Conditions of Approval A.I6 and A.I7 is expressly conditioned upon the requirement that the City and Developer execute the Final Operating Agreelnent. BE IT FURTHER RESOLVED that the City Manager and the City Attorney are hereby authorized and directed to execute the Agreement on behalf of the City of South San Francisco. * * * * * 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 regular Ineeting held on the 28th day of March 2007 by the following vote: AYES: Councilmembers Mark N. Addiego, Joseph A. Fernekes and Karyl Matsulnoto, Vice Mayor Pedro Gonzalez and Mayor Richard A. Garbarino NOES: ABSTAIN: ABSENT: ATTEST: RECORDING REQUESTED BY: City of South San Francisco WHEN RECORDED MAIL TO: Department of Economic and Community Development 400 Grand Avenue P.O. Box 711 South San Francisco, CA 94083 Documentary Transfer Tax $ EXEMPT County of San Mateo City of South San Francisco 0 INTERIM PERFORMING ARTS FACILITY OPERATING AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND MYERS PENINSULA VENTURE, LLC This Interim Perfonning Arts Facility Operating Agreelnent ("Agreement") is entered into this _day of , 2007 ("Effective Date"), by and between the City of South San Francisco ("City"), and Myers Peninsula Venture, LLC, a Delaware limited liability company ("Developer"), as conditional satisfaction of conditions of approval of the development of the real property described in Exhibit A attached hereto (the "Project Property"). City and Developer are sometimes hereafter referred to individually as a "Party" and collectively as "Parties." RECIT ALS A. On October 11, 2006, the City Council of the City of South San Francisco adopted Resolution 82-2006, approving mnendments to the Terrabay Specific Plan and a 2006 Terrabay Phase III-Only Precise Plan ("2006 Project"), which revised an approved Precise Plan for development of Phase III of the Project Property previously approved in 2000 ("2000 Project") to allow, among other things, the construction of two office towers instead of one. The Terrabay Specific Plan and conditions of approval for the 2000 Project required the Developer to include within the Project Property a performing arts facility for the use of the City and the public ("Performing Arts Facility"). The conditions of approval for the 2006 Project maintained and refined the Perfonning Arts Facility requirelnent. B. Condition of Approval A.I6 of Resolution 82-2006 required the following regarding the Performing Arts Facility: "An 'operating agreement' between the City and the Developer and his successors and assigns for the use of the Performing Arts Facility shall be executed prior to issuance of any building or grading permits for any phase of the 2006 Project. The operating agreement at a minimum shall stipulate that the facility is for use of the City, civic groups and perfonning arts groups free of charge. Square footages of uses such as stage, seating Interim Performing Arts Facility Operating Agreement Between the City of South San Francisco and Myers Peninsula Venture LLC March _, 2007 Page 1 of5 and storage shall be stipulated in the agreement. The hours and days the facility shall be available to the aforelnentioned groups shall also be stipulated in the agreelnent." C. Condition of Approval A.I7 of Resolution 82-2006 required the following regarding the Performing Arts Facility: "A Ininilnuln of eight dedicated theatre lights and a dedicated theatre control booth as well as a theatre sound system shall be provided in the perfonning arts facility for exclusive use of the performing arts and civic groups as stipulated in the operating agreelnent. The perfonning arts facility shall be developed in consideration of acoustical performance. The seating shall be flexible and the chairs shall be a minilnuln of a three (3) hour cOlnfort rating." D. Developer has sublnitted an application for a grading pennit for the Project Property to begin development of the 2006 Project ("Grading Permit"). City and Developer have been negotiating in good faith the terms of the operating agreelnent required by Conditions of Approval A.I6 and A.I7 but have not reached a final agreelnent on SOlne operational and other. details. Execution of the operating agreelnent is a precondition of issuance of the grading permit. City is willing to allow processing of a grading pennit application for the first tower approved as part of the 2006 Project, subject to the conditions and limitations set forth in this Agreelnent. E. This Interim Operating Agreelnent, a final operating agreement, and the construction and operation of the Performing Arts Facility are required for the 2006 Project. The City's approval of this Agreelnent specifically requires the execution of final operating agreelnent for the Performing Arts Facility and the construction and operation of the Performing Arts Facility. This Agreelnent shall be recorded against the Project Property. NOW THEREFORE, the City and the Developer agree as follows: AGREEMENT 1. The foregoing Recitals are true and correct and made a part of this Agreelnent. 2. This Agreement shall satisfy the requirelnents of Conditions of Approval A.I6 and A.I7. The Parties understand and agree that the execution of a Final Operating Agreement, as defined below, is an express condition of this Agreel)1ent and necessary for the City Council's detennination that this Agreelnent has satisfied Conditions of Approval A.I6 and A.I7. Neither this Agreement nor the Final Operating Agreelnent shall affect Developer's obligation, under the Terrabay Specific Plan (including but not limited to pages 1-44 and II-I 6) and Condition of Approval A.22 of Resolution 82-2006, to complete construction of the Performing Arts Facility prior to the issuance of a Certificate of Occupancy for the first tower constructed as part of the 2006 Project. 3. Subsequent to the Effective Date, City shall process Developer's application for the Grading Permit, as provided for in the South San Francisco Municipal Code and reviewing for consistency with the Terrabay Specific Plan and the approvals for the 2006 Project. Interim Performing Arts Facility Operating Agreement Between the City of South San Francisco and Myers Peninsula Venture LLC March _, 2007 Page 2 of5 4. City and Developer shall execute a Final Operating Agreelnent, as defined below, for the Perfonning Arts Center prior to Decelnber 31, 2007. In the event that the Parties do not execute a Final Operating Agreelnent by Decelnber 31, 2007, this agreement shall continue in effect, and Developer shall be obligated to construct and operate the Performing Arts Facility consistent with this Agreement, the Terrabay Specific Plan (including but not li1nited to pages 1- 44 and II-I6, including the diagrmn on the latter), and the plans for the Perfonning Arts Facility included as part of the Precise Plan approved by Resolution 82-2006, as they have been and may be administratively amended. 5. The Final Operating Agreement shalllneet all of the requirelnents of, contain all of the infonnation listed in, and ensure construction of a Perfonning Arts Facility that satisfies the description provided in Conditions of Approval A.16 and A.I7, as set forth in full in Recitals Band C above ("Final Operating Agreement"). 6. In its plans for construction of the first office tower approved as part of the 2006 Project, Developer shall include all plans and infonnation necessary for construction of the Performing Arts Center, including but not limited to all furnishings and fixtures described in Conditions of Approval A.I6 and A.I7, as set forth in full in Recitals Band C above. 7. (a) The Parties anticipate that the Final Operating Agreelnent will reserve the Perfonning Arts Facility for all of the following: (1) four Staged Performances per year; in addition to the four Staged Performances, (2) one evening each Inonth for City-sponsored events and (3) one weekend day each month (frOln 8 a.m. to 5 p.m.) for City-sponsored events. The Parties further anticipate that the City will have priority in the selection of the reserved dates. (b) For the purposes of this Agreement, "Staged Performances" Ineans live performances on stage from 5 p.m. through 11 p.ln. on Thursday, Friday and Saturday evenings and from noon through 4 p.ln. for Saturday Inatinees. As part of Staged Performances, the Facility will be available for rehearsals on stage for up to three weeks in advance of each performance on non-holiday weekday evenings frOln 5 p.ln. to 10 p.ln., and such other times as Inay be reasonably available. 8. This Agreelnent shall run with the Project Property and shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. This Agreement shall be recorded on the Project Property prior to the issuance of a grading pennit for the Project Property. 9. The Final Operating Agreement shall supersede this Agreement, run with the Project Property, be binding upon and inure to the benefit of the Parties and their respective successors and assigns, and be recorded on the Project Property. 10. The laws of the State of California shall govern this Agreement. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California. Interim Performing Arts Facility Operating Agreement Between the City of South San Francisco and Myers Peninsula Venture LLC March , 2007 Page 3 of5 11. If a party to this Agreelnent brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreelnent, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party Inay be entitled. 12. If a court of cOlnpetent jurisdiction finds or rules that any provision of this Agreelnent is invalid, void, or unenforceable, the provisions of this Agreelnent not so adjudged shall relnain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 13. Any notice or demand shall be Inade by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Developer: Myers Peninsula Venture, LLC 101 Second Street, Suite 555 San Francisco, CA 94105 Attn: Jack E. Myers City: City of South San Francisco - City Clerk 400 Grand Avenue South San Francisco, CA 94080 Either Party may change its address by written notice to the other Party. [SIGNATURES ON FOLLOWING PAGE] Interim Performing Arts Facility Operating Agreement Between the City of South San Francisco and Myers Peninsula Venture LLC March , 2007 Page 4 of5 IN WITNESS THEREOF, the parties have executed this Agreelnent as of the Effective Date. DEVELOPER: CITY: Myers Peninsula Venture, LLC a Delaware limited liability company CITY OF SOUTH SAN FRANCISCO By: J Myers COlnpany, LLC a Delaware limited liability COlnpany Its Inanaging Inelnber Barry Nagel, City Manager By: Myers Peninsula Company, LLC a Delaware limited liability company Its sole Inelnber APPROVED AS TO FORM: By: Myers Terrabay Company I, LLC Delaware lilnited liability COlnpany, Its managing Inember Steven T. Mattas, City Attorney By: Jack E. Myers: Its Inanager Interim Performing Arts Facility Operating Agreement Between the City of South San Francisco and Myers Peninsula Venture LLC March , 2007 Page 5 of 5 Exhibit A Legal Description That certain real propeliy situated in the County of San Mateo, City of South San Francisco, State of California, and described as follows: Parcels 1 and 2, as shown on the Map entitled, "Parcel Map 01-020, being a resubdivision of a portion of Lot D as said lot is shown on that certain Inap entitled 'Terrabay Phase III - Mandalay Point' filed for record on November 18, 2002 in Book 132 of Maps at pages 49 through 53, a portion of Lot 395 as said lot is shown on that certain map entitled 'Terrabay' filed for record on July 2, 1990 and all of adjusted Lot 396 as described in that certain Lot Line Adjustment No. 25, recorded March 3, 2002 as Docmnent No. 2002-043342, San Mateo County Records, City of South San Francisco, San Mateo County California" which Parcel Map was filed for record on the 19th day of May, 2006 in Book 76 of Parcel Maps, at pages 94-95, and which Parcel Map was amended by that certain Certificate of Correction recorded October 23, 2006 as Document Number 2006-159188, Official Records, San Mateo County Records, State of California. APN: 007-650-100 007 -650-110 007 -650-120 007 -650-140 007-650-150 JPN: 121-065-000-395 T (Ptn) 121-065-000-396 T (Ptn) 121-065-000-402 T (Ptn) 132-049-000-74 T (Ptn) Exhibit A to Interim Performing Arts Facility Operating Agreement Between the City of South San Francisco and Myers Peninsula Venture LLC March , 2007 Page 1 of 1 STATE OF CALIFORNIA ss. COUNTY OF SAN FRANCISCO On , 2007 before me, , Notary Public, personally appeared , personally known to me 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. Witness my hand and official seal. Notary Public My Commission Expires: