HomeMy WebLinkAboutORD 1653-2024 (24-03)
BN 76588575v1/5486604.1 09/14/2023
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
HCP FORBES, LLC
SOUTH SAN FRANCISCO, CALIFORNIA
ADOPTED BY ORDINANCE NO. ______________
OF THE CITY OF SOUTH SAN FRANCISCO CITY COUNCIL
Effective Date: __________________, 2024
i
BN 76588575v1
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS .........................................................................................................3
ARTICLE 2 EFFECTIVE DATE AND TERM ...........................................................................6
2.1 Effective Date ..........................................................................................................6
2.2 Term .........................................................................................................................6
2.3 Administrative Extension.........................................................................................7
ARTICLE 3 OBLIGATIONS OF DEVELOPER ........................................................................7
3.1 Obligations of Developer Generally ........................................................................7
3.2 City Development Fees ............................................................................................7
3.3 Community Benefit Payments .................................................................................8
3.4 Other Developer Commitments ...............................................................................8
ARTICLE 4 OBLIGATIONS OF CITY ....................................................................................10
4.1 Obligations of City Generally ................................................................................10
4.2 Protection of Vested Rights ...................................................................................10
4.3 Availability of Public Services ..............................................................................10
4.4 Developer’s Right to Rebuild ................................................................................10
4.5 Expedited Plan Check Process ...............................................................................10
4.6 Project Coordination ..............................................................................................10
4.7 Estoppel Certificates ..............................................................................................11
ARTICLE 5 COOPERATION – IMPLEMENTATION............................................................11
5.1 Processing Application for Subsequent Approvals................................................11
5.2 Timely Submittals By Developer...........................................................................11
5.3 Timely Processing By City ....................................................................................11
5.4 Denial of Subsequent Approval Application .........................................................11
5.5 Other Government Permits ....................................................................................12
5.6 Assessment Districts or Other Funding Mechanisms ............................................12
ARTICLE 6 STANDARDS, LAWS AND PROCEDURES GOVERNING THE
PROJECT ...............................................................................................................13
6.1 Vested Right to Develop ........................................................................................13
6.2 Permitted Uses Vested by This Agreement ...........................................................13
6.3 Applicable Law ......................................................................................................13
6.4 Uniform Codes .......................................................................................................14
ii
BN 76588575v1
6.5 No Conflicting Enactments ....................................................................................14
6.6 Initiatives and Referenda; Other City Actions Related to Project .........................15
6.7 Environmental Review and Mitigation ..................................................................15
6.8 Future Legislative Actions .....................................................................................16
6.9 Life of Subdivision Maps, Development Approvals, and Permits ........................17
6.10 State and Federal Law ............................................................................................18
6.11 Timing and Review of Project Construction and Completion ...............................18
ARTICLE 7 AMENDMENT......................................................................................................18
7.1 Project Amendments ..............................................................................................18
7.2 Amendment of this Agreement ..............................................................................19
ARTICLE 8 ASSIGNMENT AND TRANSFER .......................................................................20
8.1 Assignment and Transfer .......................................................................................20
ARTICLE 9 COOPERATION IN THE EVENT OF LEGAL CHALLENGE ..........................21
9.1 Cooperation ............................................................................................................21
9.2 Reapproval .............................................................................................................21
9.3 Extension Due to Legal Challenge ........................................................................22
ARTICLE 10 DEFAULT; REMEDIES; TERMINATION .........................................................22
10.1 Defaults ..................................................................................................................22
10.2 Termination ............................................................................................................22
10.3 Enforced Delay; Extension of Time of Performance .............................................22
10.4 Legal Action...........................................................................................................23
10.5 Periodic Review .....................................................................................................23
10.6 California Law .......................................................................................................24
10.7 Resolution of Disputes ...........................................................................................25
10.8 Attorneys’ Fees ......................................................................................................25
10.9 Hold Harmless .......................................................................................................25
ARTICLE 11 MISCELLANEOUS ..............................................................................................25
11.1 Incorporation of Recitals and Introductory Paragraph ...........................................25
11.2 No Agency .............................................................................................................25
11.3 Enforceability .........................................................................................................25
11.4 Severability ............................................................................................................26
11.5 Other Necessary Acts and City Approvals ............................................................26
11.6 Construction ...........................................................................................................26
iii
BN 76588575v1
11.7 Other Miscellaneous Terms ...................................................................................26
11.8 Covenants Running with the Land .........................................................................26
11.9 Notices ...................................................................................................................27
11.10 Mortgagee Protection .............................................................................................28
11.11 Entire Agreement, Counterparts And Exhibits ......................................................28
11.12 No Third Party Beneficiaries .................................................................................29
11.13 Recordation Of Development Agreement .............................................................29
Exhibit A – Description and Diagram of Project Site
• Exhibit A1 – Legal Description of Project Site
• Exhibit A2 – Diagram of Project Site – Existing Parcels
• Exhibit A3 – Diagram of Project Site – Proposed Parcels
Exhibit B – List of Project Approvals as of Effective Date
Exhibit C – City Fees, Exactions, and Payments
Exhibit D – Sustainability Features
Exhibit E – Applicable Laws
Exhibit F – Form of Assignment and Assumption Agreement
Exhibit G – Fire Station Agreement
1
BN 76588575v1/5486604.1 09/14/2023
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (“Agreement”) is entered into as of
________________, 2024 (“Effective Date”) by and between HCP Forbes, LLC (“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 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., which authorizes 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 18.99 acre site consisting of 420 Forbes Boulevard (APN 015-050-
710, 015-050-720, 015-050-730), 440 Forbes Boulevard (APN 015-050-230), 460 Forbes
Boulevard (APN 015-050-900), and 480 and 490 Forbes Boulevard (APN 015-050-890) 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 1.1 of this Agreement) will
be consistent with the Shape SSF 2040 General Plan Update (“General Plan”), and the South San
Francisco Municipal Code (“SSFMC”).
G. Development (as defined in Section 1.15 of this Agreement) of the Project Site with
the Project in accordance with the terms of this Agreement will provide substantial benefits to and
will further important policies and goals of City. This Agreement will, among other things, benefit
the City by (1) advancing the City’s economic development goals of enhancing the
competitiveness of the local economy and maintaining a strong and diverse revenue and job base,
(2) creating a state-of-the art commercial campus development to advance General Plan objectives
for the area, (3) supporting the City’s achievement of its adopted Climate Action Plan goals
2
BN 76588575v1/5486604.1 09/14/2023
through incorporation of environmentally sensitive design and equipment, energy conservation
features, water conservation measures, and other sustainability features, (5) generating
construction-related benefits, including employment, economic and fiscal benefits related to new
construction, (6) providing substantial community benefits, including conveyance of a site for a
planned new fire station, and (7) generating fiscal benefits to the City and San Mateo County due
to community benefits, taxes and other revenue sources from operations.
H. In exchange for 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
Applicable Law (as defined in Section 1.6 of this Agreement), 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 Code are intended.
J. On October 12, 2022, after a duly noticed public hearing, by Resolution No. 22-
393, the City Council certified the Program Environmental Impact Report (SCH# 2021020064)
(“Program EIR”) for the General Plan 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 Program EIR analyzed the potential
environmental impacts of development of the General Plan. Concurrent with its certification of the
Program 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 General Plan. The Statement of Overriding Considerations carefully
considered each of the General Plan’s significant and unavoidable impacts identified in the EIR
and determined that each such impact is acceptable in light of the General Plan’s economic, legal,
social, technological and other benefits. The MMRP identifies all mitigation measures identified
in the Program EIR that are applicable to the General Plan and sets forth a program for monitoring
or reporting on the implementation of such mitigation measures.
K. On October 19, 2023, following a duly noticed public hearing, the City of South
San Francisco Planning Commission (“Planning Commission”) recommended that the City
Council approve this Agreement and adopt the Resolutions and Ordinances described in Recitals
L through M.
L. On December 13, 2023 after a duly noticed public hearing, by Resolution No.
[XXXX], the City Council approved the environmental document for the Project finding that in
accordance with CEQA Guidelines section 15183, the Project is consistent with the development
density established by the General Plan for which the Program EIR was certified and thus, the
Project does not require additional environmental review, except the analysis contained in the
Project’s environmental document, which examined all potential project-specific environmental
effects which are peculiar to the Project and the Project Site.
3
BN 76588575v1/5486604.1 09/14/2023
M. On December 13, 2023, after a duly noticed public hearing, the City Council duly
adopted the following resolution and introduced the following ordinances granting certain land use
entitlements for Development of the Project on the Project Site:
1. Resolution No. [XXXX] for Project P22-0117 (Master Plan) and Project
P22-0138 (Precise Plan) adopting the: Master Plan MP23-0002, Precise Plan PP23-0001, Design
Review DR22-0036, Use Permit UP22-0011, Transportation Demand Management TDM22-0009,
Vesting Tentative Map PM22-0002, Development Agreement DA22-0005 & Environmental
Determination ND22-0002
2. Ordinance No. [XXXX] introducing, approving and authorizing the
execution of this Agreement.
The entitlements described in Recitals M, and listed on Exhibit B, are collectively referred to
herein as the “Project Approvals.”
N. 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 an appropriate level of growth.
O. In adopting Ordinance No. [_], the City Council found that this Agreement is
consistent with the General Plan and Title 20 of the SSFMC and has followed all necessary
proceedings in accordance with the City’s rules and regulations for the approval of this Agreement.
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
Project Description. As used herein, “Project” shall mean the Development on the Project Site
as contemplated by the Project Approvals and, as, when, and if 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 project plans prepared by Flad Architects
on July 14, 2023 and as such Project Approvals and Subsequent Approvals may be further
defined or modified pursuant to the provisions of this Agreement. Without limitation, the Project
shall consist of buildings that may be used for office/R&D and amenities of one million six
hundred and fifty five thousand two hundred and two (1,655,202) total gross square feet at a 2.01
FAR, including approximately three hundred and sixty-six thousand six hundred twenty
(366,620) gross square feet of previously entitled buildings currently under construction (“Phase
1 Project”), and one million two hundred and eighty-eight thousand five hundred eighty two
(1,288,582) gross square feet of proposed new construction; vehicle parking at a ratio of 2.24
striped stalls per 1,000 square feet of development; and an approximately nine thousand six
hundred (9,600) gross square foot municipal fire station with fifteen (15) parking spaces and a
4
BN 76588575v1/5486604.1 09/14/2023
minimum of two ( 2) fire truck bays on an approximately one acre site that would be constructed
by the City, all as set forth in the Project Approvals.
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 “CEQA” shall have that meaning set forth in Recital J of this Agreement.
1.7 “City” shall mean the City of South San Francisco.
1.8 “City Council” shall mean the City of South San Francisco City Council.
1.9 “City Law” shall have that meaning set forth in Section 6.5 of this Agreement.
1.10 “CFD” shall have that meaning set forth in Section 5.6 of this Agreement.
1.11 “Community Benefits” shall have that meaning set forth in Section 3.3 of this
Agreement.
1.12 “Control,” “controlled,” and “controlling” shall have that meaning set forth in
Section 8.1 of this Agreement.
1.13 “Deficiencies” shall have that meaning set forth in Section 9.2 of this Agreement.
1.14 “Developer” shall mean HCP Forbes, LLC and any Affiliate, successors or
assignees pursuant to Article 8 of this Agreement.
1.15 “Development” or “Develop” shall mean the division or subdivision of land into
one or more parcels; the construction, reconstruction, conversion, structural alteration, relocation,
improvement, maintenance, 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.
1.16 “Development Fees” shall have that meaning set forth in Section 3.2 of this
Agreement.
5
BN 76588575v1/5486604.1 09/14/2023
1.17 “Effective Date” shall have that meaning set forth in the introductory paragraph to
this Agreement.
1.18 “EIR” shall have that meaning set forth in Recital J of this Agreement.
1.19 “Fire Station” shall have the meaning set forth in Section 3.3 of this Agreement.
1.20 “Fire Station Agreement” shall have the meaning set forth in Section 3.3(a) of
this Agreement.
1.21 “Fire Station Parcel” shall have the meaning set forth in Section 3.3 of this
Agreement.
1.22 “Force Majeure Delay” shall have that meaning set forth in Section 10.3 of this
Agreement.
1.23 “GDP” shall have that meaning set forth in Section 10.3 of this Agreement.
1.24 “General Plan” shall have that meaning set forth in Recital F of this Agreement.
1.25 “Judgment” shall have that meaning set forth in Section 9.2 of this Agreement.
1.26 “Legal Challenge” shall have that meaning set forth in Section 9.1 of this
Agreement.
1.27 “Mortgage” shall have that meaning set forth in Section 11.10 of this Agreement.
1.28 “Mortgagee” shall mean the beneficiary of any Mortgage.
1.29 “MMRP” shall have that meaning set forth in Recital L of this Agreement.
1.30 “Parties” shall mean the Developer and City, collectively.
1.31 “Periodic Review” shall have that meaning set forth in Section 10.5 of this
Agreement.
1.32 “Planning Commission” shall have that meaning set forth in Recital J of this
Agreement.
1.33 “Project Approvals” shall have that meaning set forth in Recital M of this
Agreement.
1.34 “Project Site” shall have that meaning set forth in Recital C of this Agreement.
1.35 “Severe Economic Recession” shall have that meaning set forth in Section 10.3 of
this Agreement.
1.36 “SOV” shall have that meaning set forth in Section 3.4 of this Agreement.
6
BN 76588575v1/5486604.1 09/14/2023
1.37 “SSFMC” shall have the meaning set forth in Recital B of this Agreement.
1.38 “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;
Precise Plans; 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;
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.
1.39 “TDM Plan” shall have that meaning set forth in Recital M of this Agreement.
1.40 “Term” shall have that meaning set forth in Section 2.2 of this Agreement.
1.41 “VTM” shall have that meaning set forth in Recital M 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 is effective as of the Effective Date first set forth
above.
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”). The Term
shall be automatically extended for an additional (5) five years provided that, the Developer
obtains a building permit for one Project building prior to the expiration of the Term.
ARTICLE 3
OBLIGATIONS OF DEVELOPER
3.1 Obligations of Developer Generally. The Parties acknowledge and agree that
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 provide the community benefits or make any of the payments called for in this Article
3 at the times and in the amounts specified shall constitute a default by Developer subject to the
provisions of Article 10 of this Agreement.
7
BN 76588575v1/5486604.1 09/14/2023
3.2 City Development Fees.
(a) Developer shall pay those processing, building permit, inspection and plan
checking fees and charges required by City for processing applications and requests for Subsequent
Approvals under the applicable regulations in effect at the time such applications and requests are
submitted to City.
(b) Consistent with the terms of the Agreement, City shall have the right to
impose only such development fees (“Development Fees”) as had been adopted by City as of the
date the Project’s development application was determined to be complete (i.e. February 9, 2023),
as set forth in Exhibit C, only at those rates of such Development Fees in effect at the time of
payment of the Development Fees. The Development Fees shall be paid at the time set forth in
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 Community Benefits. As consideration for the Project Approvals, Developer
agrees to convey to the City an approximately one acre parcel on the northwestern corner of the
Project Site accessible from Forbes Boulevard (the “Fire Station Parcel”) pursuant to the terms
set forth in this Section 3.3 and that certain Fire Station Agreement attached as Exhibit G to be
executed concurrently herewith (the “Fire Station Agreement”). The obligations contained in
Article 3 and the Fire Station Agreement memorializing Developer’s Community Benefits
commitments satisfy Developer’s Community Benefits obligations pursuant to SSFMC Section
20.395.003.A.2(c) requiring that developers enter into Community Benefits Agreements.
(a) Fire Station Parcel Use Restriction. City shall use reasonable, efforts to
commence construction of a fire station on the Fire Station Parcel within a period of seven (7)
years from the Effective Date of this Agreement. City may not sell or develop an alternative use
on the Fire Station Parcel for a period of seven (7) years from the Effective Date of this Agreement.
For purposes of this Agreement, the seven (7) year period during which the City will make efforts
to commence construction of a Fire Station and/or will not sell or develop an alternative use on
the Fire Station Parcel as discussed in the foregoing sentences of this Section 3.3(a) shall be known
as the “Restriction Period”.
(b) Right of First Offer/Right of First Refusal. Subject to the City’s compliance
with the provisions of the California Surplus Land Act, if the City elects to sell the Fire Station
Parcel after the expiration of the Restriction Period, then Developer shall have a right of first offer
to repurchase the Fire Station Parcel, and if the City thereafter elects to sell to a subsequent party
and Developer has not exercised its right of first offer, Developer shall have a right of first refusal
(“ROFO/ROFR”) in accordance with the procedures outlined in the Fire Station Agreement.
Notwithstanding the foregoing, Developer shall not have a ROFO/ROFR if City elects to develop
another public use consistent with Table 20.100.002: Use Regulations for BTP-H zoning district
in effect on the Fire Station Parcel after the Restriction Period.
(c) Satisfaction of Community Benefits Fee Obligation. The Parties
acknowledge and agree that Developer’s conveyance of the Fire Station Parcel to the City satisfies
8
BN 76588575v1/5486604.1 09/14/2023
Developer’s entire Community Benefits Program Fee obligation (“Community Benefit
Obligation”) as set forth on Exhibit C for the development of the Property. The City agrees that
any future development of the Property shall not be subject to any new or increased Community
Benefit Obligation that may be imposed, except to the extent applicable to any increased gross
square footage that is built in excess of the gross square footage allowed on the Property by the
Project Approvals as such gross square footage is articulated in Project Approvals at the time of
the Effective Date of this Agreement . The provisions of this Section 3.3(c) shall remain in full
force and effect and survive the expiration or earlier termination of this Agreement.
3.4 Other Developer Commitments
(a) Amenity Building/Support for Local Businesses. Consistent with the
Project Approvals, Developer intends to provide an amenity building that will provide, subject
to commercial tenant needs, some publicly-accessible amenities, as well as support for local
businesses.
(b) Transportation Demand Management Plan. Developer shall implement the
TDM Plan approved by the City as described in Recital M 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 is designed to ensure that a minimum of fifty percent (50%) of
alternative mode use will be achieved and maintained. If Developer constructs the third parking
structure pursuant to the Project Approvals, then the Project shall implement performance
measures to ensure that an increased target of fifty-five percent (55%) alternative mode use will
be achieved and maintained. The TDM Plan shall be implemented through one or more individual
TDM plans. Developer shall comply with all annual reporting obligations associated with the TDM
Plan as outlined in SSFMC § 20.400.006.
(c) Public Open Space. Developer shall provide publicly accessible open space
on the Project Site, substantially in the size and in the locations provided in the Phase 1 Project
and Project Approvals, and improved with active and passive recreation amenities, as provided in
the Phase 1 Project and Project Approvals. Nothing in this Agreement shall prohibit Developer
from enacting reasonable rules and regulations for the usage of such open space, including
regulations related to hours of operation, security, and conduct within such open space.
(d) Sustainability Commitments. Developer shall implement the sustainability
features identified in the Project Approvals. For ease of reference only, a list of these sustainability
features is attached as Exhibit D.
(e) Mitigation Measures. Developer shall comply with the Mitigation Measures
identified and approved in environmental document for the Project that comports with the Program
EIR for the General Plan, in accordance with CEQA or other law as identified and as set forth in
the MMRP.
(f) 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
Project Site. As each phase of utilities infrastructure is built, it is anticipated that the constructed
9
BN 76588575v1/5486604.1 09/14/2023
public infrastructure will be dedicated to and accepted by the City, as set forth in the Project
Approvals.
(g) Community Facilities District Support. Developer agrees to participate, to
the extent Developer remains a stakeholder, in the City’s anticipated future process to establish a
community facilities district (“CFD”) serving land within the East of 101 Area Plan boundary;
provided, however, that such participation shall not be considered by City to be a commitment by
Developer to pay any future CFD assessments. In the event that a CFD is not formed during the
term of this Agreement, Developer shall not be subject to any additional development fee,
assessment or tax, except as otherwise provided for or contemplated in this Development
Agreement.
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 and Developer’s
conveyance of the Fire Station Parcel, 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, except as provided in this Agreement. City shall cooperate with Developer and shall
undertake actions mutually agreed by the Parties as necessary to ensure that this Agreement
remains in full force and effect.
4.3 Limitation on Fire Station Parcel. During the Restriction Period, City agrees that
the Fire Station Parcel shall only be used for fire station and associated public uses, and shall not
be developed with land uses that are incompatible or compete with the Project.
4.4 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.
4.5 Developer’s Right to Rebuild. City agrees that, during the Term of this
Agreement, Developer may renovate or rebuild all or any part of the Project should it become
necessary due to damage or destruction within Developer’s sole discretion. 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.
4.6 Expedited Plan Check Process. 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 City’s established fees for expedited plan check services.
10
BN 76588575v1/5486604.1 09/14/2023
City shall use reasonable efforts to provide such plan checks within three (3) weeks of a submittal
that meets the requirements of Section 5.2. City acknowledges that City’s timely processing of
Subsequent Approvals and plan checks is essential to the successful and complete Development
of the Project.
4.7 Project Coordination. City shall perform those obligations of City set forth in this
Agreement, which the City acknowledges are essential for the Developer to perform its obligations
in Article 3. City and Developer shall use good faith and diligent efforts to communicate,
cooperate and coordinate with each other during Development of the Project.
4.8 Estoppel Certificates. Developer may at any time, and from time to time, deliver
to City notice requesting that City certify to Developer, a potential transferee pursuant to Article
8, a potential lender to Developer, or a Mortgagee in writing: (i) that this Agreement is in full force
and effect and creates binding obligations on the Parties; (ii) that this Agreement has not been
amended or modified, or if so amended or modified, identifying such amendments or
modifications; (iii) that Developer is not in Default in the performance of its obligations under this
Agreement, or if in Default, identifying the nature, extent and status of any such Default; and
(iv) the findings of the City with respect to the most recent Periodic Review performed pursuant
to Section 10.5 of this Agreement. The City Manager or his or her designee, acting on behalf of
City, shall execute and return such certificate within thirty (30) calendar days after receipt of the
request.
4.9 Timing for Approval of Subsequent Project Approvals. Except in situations
where delay is outside the reasonable control of City or in situations of Force Majeure Delay, City
will use reasonable efforts to ensure that Subsequent Project Approvals will be timely granted.
ARTICLE 5
COOPERATION – IMPLEMENTATION
5.1 Processing Applications 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 of the City. Accordingly, in considering any application
for a Subsequent Approval, to the maximum extent permitted by law, City shall not use its
discretionary authority 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 reasonable 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.
11
BN 76588575v1/5486604.1 09/14/2023
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. City may deny an application for
a Subsequent Approval only if such application does not comply with this Agreement or
Applicable Law 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.
5.6 Assessment Districts or Other Funding Mechanisms.
(a) Existing Fees. As set forth in Section 3.2, above, the 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. Except as otherwise 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) Application of Fees Imposed by Outside Agencies. City agrees to exempt
Developer from any and all fees, including but not limited to, development impact fees, which
other public agencies request City to impose at City’s discretion on the Project or Project Site after
the Effective Date through the expiration of the Term. This Section 5.6(d) shall not prohibit City
from imposing on Developer any fee or obligation that is imposed by a public agency in accordance
with state or federal obligations implemented by City in cooperation with such regional agency,
or that is imposed by the State of California.
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, when, and if they are issued), and Applicable
12
BN 76588575v1/5486604.1 09/14/2023
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.) and vested rights secured pursuant to
common law vested rights protections. 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 Development 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, and fees in force and effect on the
Effective Date of this Agreement. A list of Applicable Law is provided in Exhibit E.
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. Notwithstanding the foregoing, with respect to any
local “reach codes” adopted by City after the Effective Date (including, without limitation, any
local measures to restrict use of natural gas or require on-site renewable energy generation, or to
require energy efficiency measures beyond Title 24 requirements), (i) Developer shall be excused
from compliance with such reach codes for the first two buildings of the Project as set forth in the
Phase 2 Precise Plan, and (ii) regardless of whether Developer has submitted a complete Precise
Plan application for a phase of the Project prior to the effective date of any reach codes, City may,
at any time, excuse Developer from compliance with such reach codes on the basis of a written
good faith assessment by Developer that compliance will not be feasible, including for
technological or financial reasons, or that compliance would frustrate the goals of the Project
Approvals or this Agreement. Prior to submitting a written good faith assessment of reach code
feasibility to City, Developer shall confer in good faith with Peninsula Clean Energy, or a qualified
third-party consultant with subject matter expertise as reasonably identified by City, regarding
feasibility of both full and partial compliance with the reach code, including technological and
financial feasibility, and shall include the feasibility assessment of Peninsula Clean Energy or the
13
BN 76588575v1/5486604.1 09/14/2023
other consultant identified by City. Notwithstanding the foregoing, Developer shall be excused
from compliance with such reach codes if the Project is otherwise exempt under the terms of the
reach codes.
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
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 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 City other than those required
by Applicable Law;
(f) Establish, enact, increase, or impose against the Project or Project Site any
fees, liens or other similar monetary obligations (including generating demolition permit fees,
encroachment permit and grading permit fees) other than those specifically permitted by this
Agreement 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.
14
BN 76588575v1/5486604.1 09/14/2023
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
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 New Taxes. Any subsequently enacted City-wide taxes shall apply to the Project
provided that: (1) the application of such taxes to the Property is prospective; and (2) the
application of such taxes would not prevent development in accordance with this
Agreement. Other than agreeing that Developer has no vested right against such new taxes,
Developer does not waive its right to challenge the legality of any such taxes under the controlling
law then in place.
6.8 Assessments. Nothing herein shall be construed to relieve the Property from
assessments levied against it by City pursuant to any statutory procedure for the assessment of
property to pay for infrastructure and/or services which benefit the Property.
6.9 Vote on Future Taxes, Assessments, and Fees. In the event that any assessment,
fee or charge which is applicable to the Project Site is subject to Article XIIIC or XIIID of the
California Constitution and Developer does not return its ballot, Developer agrees, on behalf of
itself and its successors, that City may count Developer’s ballot as an abstention on such tax,
assessment, fee or charge.
6.10 Environmental Review and Mitigation. The Parties understand that the Project’s
environmental document, the Program 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 Project’s environmental document and
the Program EIR, City agrees to use the Project’s environmental document, Program 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’s environmental document, Project Approvals, Program EIR,
and MMRP, or specifically required by CEQA or other Applicable Law, except as provided for in
this Section 6.7. Without limitation of the foregoing, the Parties acknowledge that Subsequent
15
BN 76588575v1/5486604.1 09/14/2023
Approvals may be eligible for one or more statutory or categorical exemptions under CEQA. 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.
6.11 Future Legislative Actions.
(a) In the event that, following the Effective Date, City amends or otherwise
updates the General Plan 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 designates as “Office” or “R&D,” 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 “Office” or “R&D” under the General Plan.
(b) In the event that, following the Effective Date, City revises, modifies,
updates, or amends the land use designation(s) of the General Plan, 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
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 City that are in any way related to
revisions, modifications, amendments, or updates to the General Plan or the City of South San
Francisco Municipal Code. Notwithstanding the foregoing, in the event that future legislative
actions increase the allowable density or development capacities on the Project Site, any future
development application seeking to utilize such increased density or capacity shall not be allowed
to utilize any increased parking ratio authorized by this Agreement by-right.
(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 (c) 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
16
BN 76588575v1/5486604.1 09/14/2023
respect to such application in accordance with Section 6.7 of this Agreement, and, if such
application is finally approved by 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 not 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 rights vested under this Agreement; and
(ii) the only exactions, mitigation requirements, 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.
6.12 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.
6.13 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
17
BN 76588575v1/5486604.1 09/14/2023
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.
6.14 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 Project on the Project Site in such
order and at such rate and at such times as the Developer deems appropriate in the exercise of its
business judgment. Nothing in this Agreement shall create any obligation for Developer to
complete development of the Project, or any portion thereof, except and to the extent set forth in
the Project Approvals.
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,
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 of 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
18
BN 76588575v1/5486604.1 09/14/2023
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.
(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 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 Project’s environmental document or Program 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, substitutions of comparable building
design/façade materials for any building design/façade material shown on any final development
plan or Precise 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 of the Project, and minor adjustments
to the Property diagram or Property 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.
(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.
19
BN 76588575v1/5486604.1 09/14/2023
ARTICLE 8
ASSIGNMENT AND TRANSFER
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 thereof, which consent will not be unreasonably
withheld or delayed. City shall respond within fifteen (15) business days to any Developer notice
of transfer. City failure to respond within thirty (30) days shall be deemed consent to the transfer.
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 (which shall be
appealable by Developer to the City Council), 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 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 Project’s
environmental document, the Program EIR and MMRP, the General Plan, and the TDM 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, 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 or any portion of the Property, the Developer and assignee shall enter into an assignment and
assumption agreement in substantially the form set forth in Exhibit G.
(b) 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 or any use of the Property;
(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.
(c) 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
20
BN 76588575v1/5486604.1 09/14/2023
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 (“Legal
Challenge”), the Parties will cooperate in defending such action or proceeding. City shall promptly
(within five business days) notify Developer of any such Legal Challenge against City. If City fails
promptly to notify Developer of any Legal Challenge 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 Legal Challenge, 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 City and Developer are
unable to select mutually agreeable legal counsel to defend such Legal Challenge, each party may
select its own legal counsel and Developer will pay its and City’s attorneys’ fees and costs.
Developer shall reimburse City for all reasonable court costs and attorneys’ fees expended by City
in defense of any such Legal Challenge or payable to any prevailing plaintiff/petitioner.
9.2 Reapproval.
(a) If, as a result of any Legal Challenge, 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 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 Development 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.
21
BN 76588575v1/5486604.1 09/14/2023
(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.
9.3 Extension Due to Legal Challenge. In the event that any Legal Challenge has the
direct or indirect effect of setting aside or modifying the Project Approvals, or preventing or
delaying development of the Project as set forth herein, the Term of this Agreement shall be
automatically extended for a period equal to the number of days from the commencement of
litigation to its conclusion (“Litigation Tolling Period”); provided, however, that the total
Litigation Tolling Period shall not exceed five (5) years.
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
period. Upon the occurrence of a default under the Agreement, and the failure to cure the default,
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 take 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, provided, however, that if Developer files an action to
challenge City’s termination of the Agreement within such 60 day period, then the Agreement
shall remain in full force and effect until a trial court has affirmed City’s termination of the
Agreement and all appeals have been exhausted (or the time for requesting any and all appellate
review has expired); provided however that the time period during which the Agreement shall
remain in effect shall not exceed three (3) years.
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;
22
BN 76588575v1/5486604.1 09/14/2023
casualties; acts of God; acts of the public enemy; terrorism; epidemics or pandemics; quarantine
or shelter-in-place 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.
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
23
BN 76588575v1/5486604.1 09/14/2023
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 failure 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.
(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. 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
24
BN 76588575v1/5486604.1 09/14/2023
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 within a reasonable time period. Nothing in this Section
10.7 shall in any way be interpreted 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, City’s breach of this Agreement, or
alleged to arise from, (i) any gross negligence or willful misconduct on the part of City, its elected
and appointed representatives, officers, agents and employees, or (ii) to the extent arising out of or
in connection with the maintenance, use or condition of any public improvement after the time it
has been dedicated to and accepted by the City or another public entity.
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
25
BN 76588575v1/5486604.1 09/14/2023
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.
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,
26
BN 76588575v1/5486604.1 09/14/2023
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 (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
delivered by email, a notice 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. 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. Such
notices or communications shall be given to the parties at their addresses set forth below:
If to City, to: City of South San Francisco
Attn: City Manager
400 Grand Avenue
South San Francisco, CA 94080
Phone: (650) 877-8500
Email: [email protected]
With a Copy to: Meyers Nave
Attn: Sky Woodruff
1999 Harrison Street, 9th Floor
Oakland, CA 94612
Phone: (510) 808-2000
Email: [email protected]
If to Developer, to: [INSERT]
With a Copy to: [INSERT]
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.
27
BN 76588575v1/5486604.1 09/14/2023
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 lien of mortgage, deed of trust, or other
security device securing financing with respect to the Project or the Project Site (“Mortgage”).
City acknowledges that the lenders providing such financing may require, in addition to estoppel
certificates as set forth in Section 4.7, 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 or within ten
(10) days of receiving a request, if a Mortgagee has not provided a request prior to the City sending
a 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
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 twenty-nine (29) pages, exclusive of signature pages, and seven (7) 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 A1: Legal Description of Project Site
• Exhibit A2: Diagram of Project Site – Existing Parcels
28
BN 76588575v1/5486604.1 09/14/2023
• Exhibit A3: Diagram of Project Site – Proposed Parcels
Exhibit B: List of Project Approvals as of Effective Date
Exhibit C: City Fees, Exactions and Payments
Exhibit D: Sustainability Features
Exhibit E: Applicable Laws
Exhibit F: Form of Assignment and Assumption Agreement
Exhibit G: Fire Station 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.
[Signatures to follow on subsequent pages.]
29
BN 76588575v1/5486604.1 09/14/2023
SIGNATURE PAGE FOR DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND HCP FORBES, LLC
CITY:
CITY OF SOUTH SAN FRANCISCO,
a California municipal corporation
By:
Date:
Name: Sharon Ranals
Its: City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
[Insert Notary Acknowledgment]
30
BN 76588575v1
SIGNATURE PAGE FOR DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND HCP FORBES, LLC
DEVELOPER:
By:
Date:
Name:
Its:
By:
Date:
Name:
Its:
[Insert Notary Acknowledgment]
4867-9363-4824.12 A-1
BN 76588575v1
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND
HCP FORBES, LLC
Exhibit A
Description and Diagram of Project Site
(Starts on Next Page)
4867-9363-4824.12 A-2
BN 76588575v1
EXHIBIT A1 – LEGAL DESCRIPTION OF PROJECT SITE
Real property in the City of South San Francisco, County of San Mateo, State of California,
described as follows:
PARCEL ONE:
PARCEL 49, IN BLOCK 2, AS SHOWN AND DELINEATED UPON THAT CERTAIN MAP
ENTITLED, "PARCEL MAP, GALLO TRACT", BEING A RESUBDIVISION OF LOT 12, IN
BLOCK 2, CABOT, CABOT AND FORBES INDUSTRIAL PARK UNIT NO. 1, FILED IN THE
OFFICE OF THE COUNTY RECORDER ON DECEMBER 23, 1976, IN BOOK 34 OF PARCEL
MAPS, PAGE 35, SAN MATEO COUNTY RECORDS.
PARCEL TWO:
PARCEL 50, IN BLOCK 2, AS SHOWN AND DELINEATED UPON THAT CERTAIN MAP
ENTITLED, "PARCEL MAP, GALLO TRACT", BEING A RESUBDIVISION OF LOT 12, IN
BLOCK 2, CABOT, CABOT AND FORBES INDUSTRIAL PARK UNIT NO. 1, FILED IN THE
OFFICE OF THE COUNTY RECORDER ON DECEMBER 23, 1976, IN BOOK 34 OF PARCEL
MAPS, PAGE 35, SAN MATEO COUNTY RECORDS.
PARCEL THREE:
PARCEL 13 IN BLOCK 2 AS SHOWN ON THAT CERTAIN MAP ENTITLED, "PARCEL
MAP BEING A RESUBDIVISION OF LOT 8, IN BLOCK 2, CABOT, CABOT & FORBES
INDUSTRIAL PARK UNIT NO. 1, SOUTH SAN FRANCISCO, SAN MATEO COUNTY,
CALIFORNIA", FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO
COUNTY, STATE OF CALIFORNIA ON FEBRUARY 25, 1966 IN BOOK 1 OF PARCEL
MAPS, PAGE 11.
PARCEL FOUR:
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF SOUTH SAN
FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, BEING A PORTION
OF PARCEL 38 AND A PORTION OF PARCEL 39 AS SAID PARCELS ARE SHOWN ON
THAT CERTAIN MAP ENTITLED "PARCEL MAP BEING A SUBDIVISION OF LOT 9,
BLOCK 2, CABOT, CABOT & FORBES INDUSTRIAL PARK UNIT NO. 1, RECORDED IN
VOLUME 61 OF MAPS AT PAGES 45 THROUGH 49 AND PARCEL 14, BLOCK 2, AS
SHOWN ON THE PARCEL MAP RECORDED IN VOLUME 1 OF PARCEL MAPS AT PAGE
11 ", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY
OF SAN MATEO, STATE OF CALIFORNIA ON JULY 7, 1966 IN BOOK 1 OF PARCEL
MAPS AT PAGE 37, SAID REAL PROPERTY BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 38 AS SHOWN ON SAID
PARCEL MAP IN BOOK 1 OF PARCEL MAPS AT PAGE 37 SAID POINT ALSO BEING ON
THE RIGHT OF WAY OF FORBES BOULEVARD (80 FOOT WIDE);
4867-9363-4824.12 A-3
BN 76588575v1
THENCE EASTERLY ALONG SAID RIGHT OF WAY OF FORBES BOULEVARD ON A
NON-TANGENTIAL CURVE CONCAVE TO THE NORTH HAVING A RADIUS OF 3600.00
FEET AND TO WHICH RADIUS POINT A RADIAL LINE BEARS NORTH 00° 54' 50" WEST,
THROUGH A CENTRAL ANGLE OF 05° 05' 34", WITH A CURVE LENGTH OF 319.99
FEET;
THENCE LEAVING SAID RIGHT OF WAY SOUTH 00° 22' 10” WEST 160.71 FEET;
THENCE SOUTH 15° 28' 01” WEST 341.06 FEET TO THE SOUTHWESTERLY BOUNDARY
LINE OF SAID PARCEL 39;
THENCE WESTERLY ALONG SAID SOUTHWESTERLY BOUNDARY LINE ON A NON-
TANGENTIAL CURVE CONCAVE TO THE SOUTH HAVING A RADIUS OF 1156.06 FEET
AND TO WHICH RADIUS POINT A RADIAL LINE BEARS SOUTH 16° 32' 31" WEST,
THROUGH A CENTRAL ANGLE OF 11° 37' 30", WITH A CURVE LENGTH OF 234.56 FEET
TO THE SOUTHWEST CORNER OF SAID PARCEL 38;
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 38 NORTH 00° 22' 10” EAST
426.53 FEET (CALLED 426.52 FEET ON SAID PARCEL 38), TO THE POINT OF
BEGINNING, SAID PARCEL IS SHOWN AS RESULTANT PARCEL A ON THAT
CERTIFICATE OF COMPLIANCE OF LOT LINE ADJUSTMENT RECORDED DECEMBER
2, 2022 AS INSTRUMENT NO. 2022-083501, SAN MATEO COUNTY RECORDS.
PARCEL FIVE:
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF SOUTH SAN
FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, BEING A PORTION
OF PARCEL 38 AND A PORTION OF PARCEL 39 AS SAID PARCELS ARE SHOWN ON
THAT CERTAIN MAP ENTITLED "PARCEL MAP BEING A RESUBDIVISION OF LOT 9,
BLOCK 2, CABOT, CABOT & FORBES INDUSTRIAL PARK UNIT NO. 1, RECORDED IN
VOLUME 61 OF MAPS AT PAGES 45 THROUGH 49 AND PARCEL 14, BLOCK 2, AS
SHOWN ON THE PARCEL MAP RECORDED IN VOLUME 1 OF PARCEL MAPS AT PAGE
11", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF
SAN MATEO, STATE OF CALIFORNIA ON JULY 7, 1966 IN BOOK 1 OF PARCEL MAPS
AT PAGE 37, SAID REAL PROPERTY BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 39 ALSO BEING THE
NORTHEAST CORNER OF LOT 7 AND THE WEST RIGHT OF WAY OF ALLERTON
AVENUE AS SHOWN ON SAID PARCEL MAP BOOK 1 OF MAPS AT PAGE 37;
THENCE LEAVING SAID RIGHT OF WAY NORTH 56° 37' 50” WEST 41.45 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWEST HAVING A RADIUS OF
1156.06 FEET, THROUGH A CENTRAL ANGLE OF 16° 49' 39”, WITH A CURVE LENGTH
OF 339.53 FEET;
4867-9363-4824.12 A-4
BN 76588575v1
THENCE NORTH 15° 28' 01" EAST 341.06 FEET;
THENCE N 0° 22' 10" EAST A DISTANCE OF 160.71 FEET TO A POINT ON THE
SOUTHERLY RIGHT OF WAY OF FORBES BOULEVARD (80 FOOT WIDE);
THENCE EASTERLY ON A NON-TANGENTIAL CURVE CONCAVE TO THE NORTH
HAVING A RADIUS OF 3600.00 FEET AND TO WHICH RADIUS POINT A RADIAL LINE
BEARS NORTH 06° 00' 24" WEST, THROUGH A CENTRAL ANGLE OF 9° 07’ 30,” WITH
A CURVE LENGTH OF 573.35 TO THE BEGINNING OF A REVERSE CURVE;
THENCE ALONG LAST SAID CURVE CONCAVE TO THE SOUTHWEST THROUGH A
CENTRAL ANGLE 98° 08' 24”, HAVING A RADIUS OF 30.00 FEET, FOR A DISTANCE OF
51.39 FEET TO THE BEGINNING OF A COMPOUND CURVE;
THENCE ALONG ON THE WEST RIGHT OF WAY OF ALLERTON AVENUE AND ALONG
LAST SAID CURVE HAVING A RADIUS OF 465.29 FEET THROUGH A CENTRAL ANGLE
OF 40° 21' 40", WITH A CURVE LENGTH OF 327.77 FEET;
THENCE CONTINUING ALONG SAID RIGHT OF WAY OF ALLERTON AVENUE SOUTH
33° 22' 10" WEST FOR A DISTANCE OF 505.47 FEET (CALLED 505.48 FEET ON SAID
PARCEL 39), TO THE POINT OF BEGINNING, SAID PARCEL IS SHOWN AS RESULTANT
PARCEL B ON THAT CERTIFICATE OF COMPLIANCE OF LOT LINE ADJUSTMENT
RECORDED DECEMBER 2, 2022 AS INSTRUMENT NO. 2022-083501, SAN MATEO
COUNTY RECORDS.
APNs: 015-050-710, 015-050-720, and 015-050-730 (Parcels One and Two; 420 Forbes Blvd.)
APN: 015-050-230 (Parcel Three; 440 Forbes Blvd.)
APN: 015-050-900 (Parcel Four; 460 Forbes Blvd.)
APN: 015-050-890 (Parcel Five; 480-490 Forbes Blvd.)
4867-9363-4824.12 A-5
BN 76588575v1
EXHIBIT A2 – DIAGRAM OF PROJECT SITE – EXISTING PARCELS
4867-9363-4824.12 A-6
BN 76588575v1
EXHIBIT A3 – DIAGRAM OF PROJECT SITE – PROPOSED PARCELS
4867-9363-4824.12 A-7
BN 76588575v1
B-1
BN 76588575v1
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND
HCP FORBES, LLC
Exhibit B
List of Project Approvals as of Effective Date
Project P22-0117 (Master Plan) and Project P22-0138 (Precise Plan) adopting the:
• Master Plan MP23-0002
• Precise Plan PP23-0001
• Design Review DR22-0036
• Use Permit UP22-0011
• Transportation Demand Management TDM22-0009
• Vesting Tentative Map PM22-0002
• Development Agreement DA22-0005
• Environmental Determination ND22-0002
C-1
BN 76588575v1
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND
HCP FORBES, LLC
Exhibit C
City Fees, Exactions, and Payments
The following fees are estimates, are subject to change, based on final plans submitted for building
permits. Credits for existing uses will be calculated and applied to applicable fees. **
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 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. CHILDCARE FEE: Prior to issuance of the first building permit non-residential, the
applicant shall pay any applicable childcare fees in accordance with South San Francisco
Municipal Code Chapter 20.310. This fee is subject to annual adjustment. The childcare
impact fee estimate for the project is:
• Office/R&D: $1.51/SF x 1,288,582 SF = $1,945,758.82
3. PARK FEES: Prior to issuance of the first building permit the applicant shall pay the
Parkland Acquisition Fee and Parkland Construction Fee in accordance with South San
Francisco Municipal Code Chapter 8.67. The fee is subject to annual adjustment. The park
fee estimate for the project is:
• Office/R&D: $3.54/SF x 1,288,582 SF = $4,561,580.28
4. CITYWIDE TRANSPORTATION FEE: Prior to issuance of the first building permit, the
applicant shall pay applicable transportation impact fees in accordance with South San
Francisco Municipal Code Chapter 8.73. The fee is subject to annual adjustment. The
citywide transportation fee estimate for the project is:
• Office/R&D: $34.85/SF x 1,288,582 SF = $44,907,082.70
5. COMMERCIAL LINKAGE FEE: Prior to issuance of the first building permit, the
applicant shall pay the applicable commercial linkage fee in accordance with South San
Francisco Municipal Code Chapter 8.69, based on the current fee for each applicable land
use category. The fee shall be calculated based on the fee schedule in effect at the time the
building permit is issued. The commercial linkage fee estimate for the project is:
C-2
BN 76588575v1
• Office/R&D: $17.38/SF x 1,288,582 SF = $22,395,555.20
6. PUBLIC SAFETY IMPACT FEE: Prior to issuance of the first building permit for the
development, the applicant shall pay applicable Public Safety Impact Fees in accordance
with South San Francisco Municipal Code Chapter 8.75. The Public Safety Impact Fee for
the project is:
• Office/R&D: $1.31/SF x 1,288,582 SF = $1,688,042.42
7. LIBRARY IMPACT FEE: Prior to issuance of the certificate of occupancy for the
development, whichever is earlier, the applicant shall pay applicable Library Impact Fee
in accordance with South San Francisco Municipal Code Chapter 8.74. The Library Impact
Fee for the project is:
• Office/R&D: $.14/SF x 1,288,582 SF = $180,401.48
8. PUBLIC ART REQUIREMENT: All non-residential development is subject to the Public
Art Requirement, per South San Francisco Municipal Code Chapter 8.76. The public art
requirement for this project shall be satisfied by providing qualifying public art, as
defined in South San Francisco Municipal Code Chapter 8.76 and reviewed and approved
by the Cultural Arts Commission or designee, with a value equal to not less than 1% of
construction costs for acquisition and installation of public art on the project site; or
electing to make a public art contribution payment in an amount not less than 0.5% of
construction costs into the public art fund. The in-lieu contribution payment shall be
made prior to the issuance of a building permit.
4867-9363-4824.12 D-1
BN 76588575v1
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND
HCP FORBES, LLC
Exhibit D
Sustainability Features
The Vantage Project incorporates the following sustainability features into the campus design.
The following features assume a full campus build out:
• Transportation
o The site is within walking distance of a select number of basic services and is
bikeable to several basic services such as restaurants, shops, and parks accessible
from Allerton Road or the bike trail. The campus amenity building also offers a
restaurant, fitness center, meeting space, and a conferencing center to reduce
vehicular use to and from the site during the work day.
o The parking garage includes bicycle parking for 168 long-term bicycles at full build
out and short-term bicycle parking spaces near building entrances in accordance with
CALGreen. Showers are provided in the amenity building to accommodate
commuters who bicycle to work.
o Parking areas include CLEAN AIR/VANPOOL/EV striping in accordance with
CALGreen requirements.
o Parking areas provide infrastructure for future Electric Vehicle Charging Stations.
o A Transportation Demand Management Plan (TDM) has been developed to promote
alternative forms of transportation and improve air quality.
• Energy / Greenhouse Gas Emissions
o Energy strategies will be evaluated holistically to reduce energy demand and
operational carbon. Systems will be tested and monitored to aid in operational
efficiencies.
• A commissioning agent has been retained in order to meet the requirements of
the LEED Fundamental & Enhanced Commissioning prerequisite, CALGreen,
and Title 24 requirements.
• Project will comply with all applicable provisions of Title 24 2022 Energy
Efficiency Standards.
• Project will meet LEED energy savings requirements through compliance
with Title 24. This energy optimization may be achieved using strategies such
as: building envelope features, building orientation or shape, efficient
mechanical, plumbing, or electrical systems.
o Electrical service to be provided by Peninsula Clean Energy or other clean energy
source.
4867-9363-4824.12 D-2
BN 76588575v1
• Waste Reduction
o Recycling and composting collection areas include mixed paper, corrugated
cardboard, glass, plastics, and metals. The project will take appropriate measures for
the safe collection, storage, and disposal of electronic waste.
o A Construction Waste Management Plan will be prepared and implemented.
• Water Conservation
o Water conservation strategies will be prioritized to first conserve water by reducing
potable water demand. Water use monitoring and measurement offers operational
efficiencies for water conservation.
• Outdoor Water Use
o Landscape will comply with the Model Water Efficient Landscape
Ordinance (MWELO).
o Irrigation systems should be separately metered.
o Native and drought tolerant species will be specified and planted.
• Indoor Water Use
o Indoor plumbing fixtures will target an aggregate water consumption
reduction by 30% from the LEED v4.0 baseline. Additional reductions
will be targeted pending final selection of fixtures.
o Urinals, water closets, and any showerheads will be WaterSense
labeled.
o Building will have a dedicated water meter for whole building water
use.
o Project will install permanent meters for two water subsystems. One of
these meters should be tied to landscape irrigation and the cooling
towers will be equipped with make up water meters.
o Cooling towers shall be designed to maximize cycles of concentration by assessing
the water quality on the site and through filtration and treatment.
• Designing for Employee and Community Wellness
o Prioritize wellness as part of the design and operations through mechanical
ventilation and high efficiency filters.
o Provide on-site health and fitness facilities for building tenants.
o Provide open space that offers opportunities for tenant recreation and social
interaction.
o Provide vegetated area and diversity of plant species to promote connections to
nature.
o Provide access to natural daylight and views.
• Other
o LEED v4.0 Certification.
4867-9363-4824.12 D-3
BN 76588575v1
o On-site stormwater pollution prevention plans (including bio-filtration areas, flow-
through planters, and pervious pavers and pavements) and erosion and sediment
control plans.
4867-9363-4824.12 E-1
BN 76588575v1
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND
HCP FORBES, LLC
Exhibit E
Applicable Laws
Developer shall comply with the following City regulations and provisions applicable to
the Property as of the Effective Date of this Agreement (except as modified by this Agreement and
the Project Approvals).
1. South San Francisco General Plan, as adopted on October 12, 2022 and as amended from
time to time prior to the Effective Date.
2. City of South San Francisco Municipal Code, as amended from time to time prior to the
Effective Date, including Chapter 20.020 Zoning Districts, Zoning Map, and Boundaries.
3. South San Francisco Zoning Map, as amended from time to time prior to the Effective
Date.
4. City Fees as set forth in Exhibit C
F-1
DEVELOPMENT AGREEMENT BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO AND
HCP FORBES, LLC
Exhibit F
Form of Assignment and Assumption Agreement
(Starts on Next Page)
F-2
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 HCP Forbes, LLC (“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 ________, 2024, approved by the City of South San
Francisco City Council by Ordinance No. ________ on _________,2024 and recorded on
______________, 2024 as Document No. ______________, San Mateo County Official Records
(“Development Agreement”) to facilitate the development and redevelopment of that certain real
property within the City of South San Francisco, California, which is legally described in Exhibit
A 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.
C. Section 8.1 of the Development Agreement (“Agreement and Transfer” therein)
refers to Assignor 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
F-3
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 or any portion
of the Property, the Developer and assignee shall enter into an assignment and
assumption agreement in substantially the form set forth in Exhibit F.
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
itself 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 of 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 partially or 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. .
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.
F-4
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 San Mateo, 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 San Mateo, 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
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”).
F-5
IN WITNESS WHEREOF, Assignor, Assignee and City have entered into this Assignment
Agreement as of the date first written above.
ASSIGNOR:
HCP FORBES, LLC
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
By:
Signature of Person executing the Agreement on
behalf of City
Name:
Title: City Manager
Approved as to form by:
By:
Signature of Person approving form of the
Agreement on behalf of City
Name:
Title: City Attorney
G-1
Exhibit G
Fire Station Agreement
(Starts on Next Page)
G-2
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).
VANTAGE PROJECT
FIRE STATION AGREEMENT
BY AND BETWEEN
CITY OF SOUTH SAN FRANCISCO
AND
HCP FORBES, LLC
This Fire Station Agreement (“Agreement”) is entered into as of _________, 2024
(“Effective Date”), by and between the City of South San Francisco, a municipal corporation
organized and existing under the State of California (the “City”) and HCP Forbes, LLC, a
Delaware limited liability company (“Developer”). The City and Developer are sometimes
hereinafter referred to as a “Party” and collectively as the “Parties.”
R E C I T A L S
WHEREAS, Developer has a legal and/or equitable interest in certain real property located
on the approximately 18.99 acre site consisting of 420, 440, 460, 480, and 490 Forbes Boulevard
in the City of South San Francisco, County of San Mateo, State of California (the “Property”),
and intends to develop the Property into a One Million Six Hundred Fifty Five Thousand Two
Hundred Two (1,655,202) square foot office/research and development and life science campus
and amenities, parking, and infrastructure (the “Campus Development”) with a fire station that
will be developed by the City (the “Fire Station”). Collectively, the Campus Development and
the Fire Station are referred to as, the “Development Project”; and
WHEREAS, on [DATE], after a duly noticed public hearing, the City Council approved
various entitlements for the Development Project by adopting Resolution No. ____ for Project
P22-0117 and Project P22-0138, including a Master Plan, Precise Plan, Design Review,
G-3
Transportation Management Plan, Conditional Use Permit, Development Agreement
(“Development Agreement”), and Vesting Tentative Map (collectively, the “Entitlements”),
which authorize development of the Development Project; and
WHEREAS, on [DATE], pursuant to Ordinance No. ____, the Parties entered into the
Development Agreement to vest Developer’ rights to develop the Development Project in
exchange for certain community benefits provided to the City; and
WHEREAS, the Development Project’s 2.0 FAR is proposed in accordance with the BTP-
High General Plan designation and zoning that allow a maximum 2.0 FAR with community
benefits on the Property; and
WHEREAS, South San Francisco Municipal Code (the “S.S.F.M.C.”) section
20.100.003(B) allows for certain projects to realize increased FAR by complying with the City’s
Community Benefit Program; and
WHEREAS, Developer intends to satisfy the City’s Community Benefit Program by
conveying to the City an approximately one-acre parcel on the northwestern corner of the Property,
accessible from Forbes Boulevard, more specifically described in the attached Exhibit A (the
“Fire Station Parcel”), upon which the City will develop the Fire Station; and
WHEREAS, the Parties agree that the Development Project and the densification of the
East of 101 Area, as envisioned by the City’s Shape SSF 2040 General Plan (the “General Plan”),
will increase the demand for fire services in the neighborhood and will strain existing fire service
facilities; and
WHEREAS, the City is responsible for providing fire protection services within the City;
and
WHEREAS, conveyance of the Fire Station Parcel will provide the City with significant
community benefits, by allowing the City to develop the Fire Station onsite, increasing fire service
coverage in the East of 101 Area, consistent with the City Shape SSF 2040 General Plan policies
and the S.S.F.M.C.; and
WHEREAS, Developer and the City agree that the conveyance of the Fire Station Parcel
and the City’s development of the Fire Station on the Fire Station Parcel will mutually benefit the
Parties; and
WHEREAS, the conveyance of the Fire Station Parcel for the City’s development of the
Fire Station is consideration for the City’s issuance of the Entitlements to Developer, and
Developer’ development rights under the Development Agreement granted by the City; and
WHEREAS, Developer has agreed to convey the Fire Station Parcel to the City, subject to
the terms and conditions set forth herein, in order to mitigate the Development Project’s impacts
to fire protection services and to provide significant community benefits to the City, in exchange
for the City’s approval of the Development Project and Entitlements at the proposed density; and
G-4
WHEREAS, the Parties desire to enter into this Agreement to set forth (i) Developer’s
commitment to convey the Fire Station Parcel to the City, in exchange for increased density for
the Development Project, and (ii) the City’s obligations with respect to acceptance of the Fire
Station Parcel and efforts towards development of the Fire Station.
NOW THEREFORE, in consideration of the covenants and agreements hereinafter set
forth, the Parties agree as follows:
G-5
AGREEMENT
ARTICLE 1
FIRE STATION PARCEL
Section 1.1 Fire Station Parcel
1.1.1 Fire Station Parcel Transfer. Pursuant and subject to the terms of this
Agreement, Developer shall convey fee title to the Fire Station Parcel to the City in exchange for
the benefits afforded Developer detailed in the Development Agreement.
ARTICLE 2
Obligations OF THE PARTIES
Section 2.1 Developer’ Rights and Obligations
2.1.1 Fire Station Parcel Conveyance. Within ninety (90) days of the execution
of this Agreement, Developer shall execute a grant deed for the Fire Station Parcel to the City in
accordance with this Section 2.1.1 (the “Grant Deed”) substantially in the form attached as
Exhibit B hereto and deliver such Grant Deed to the City.
2.1.2 Conveyance of Fire Station Parcel. Developer shall convey the Fire
Station Parcel on an “as is” basis without warranties, representations or guarantees, express or
implied, but in a fenced condition. Upon conveyance, Developer shall be released from liability
with respect to the Fire Station Parcel.
Section 2.2 City’s Rights and Obligations
2.2.1 As-Is Property. City agrees and acknowledges that it is taking title to the
Fire Station Parcel in its “as-is” condition and that Developer makes no representations or
warranties regarding the condition of the Fire Station Parcel.
ARTICLE 3
Fire Station Development and Interim Use
Section 3.1 License for Use of Fire Station Parcel
During the term of the Development Agreement, Developer may, pursuant to a mutually
acceptable license agreement (the “Fire Station Parcel License Agreement”), operate and utilize
the Fire Station Parcel in accordance with applicable laws and regulations, including using the Fire
Station Parcel for ingress, egress, parking, staging, and other construction related activities until
the City (i) commences construction of the Fire Station, (ii) conveys the Fire Station Parcel to a
third-party after the Restriction Period or (iii) otherwise commences an alternative public use
(consistent with the Alternative Use Restriction set forth in Section 3.5 (b) below) on the Fire
Station Parcel after the Restriction Period. For purposes of this Agreement, the Restriction Period
shall have the same meaning as outlined in the Development Agreement.
G-6
If Developer elects not to pursue a Fire Station License Agreement with the City for use of
the Fire Station Parcel as contemplated in this Section 3.1, then City may elect to license the Fire
Station Parcel to other users for similar temporary uses pursuant to a license agreement. For
purposes of this Section 3.1, Developer shall have elected not to pursue the Fire Station License
Agreement with the City only if Developer has not requested to enter into the Fire Station License
Agreement with the City in writing within one (1) year of the Effective Date of the Development
Agreement or has failed to respond to City’s offer to enter into the Fire Station License Agreement
within thirty (30) days after receipt of same.
Section 3.2 License for Use of Campus Development Property
During the term of the Development Agreement, the City may, pursuant to a mutually
acceptable license agreement in a form substantially similar to the Fire Station Pracel License
Agreement (the “Vantage Campus License Agreement”), use certain Campus Development
property (as determined by Developer, in its sole discretion) for vehicle parking, staging and other
construction related activities for the Fire Station Parcel in accordance with applicable laws and
regulations, until such time as Developer determines, in its sole discretion, that it can no longer
allow such use by the City.
If the City has not requested to enter into a Vantage Campus License Agreement with
Developer in writing within one (1) year of the Effective Date of the Development Agreement or
has failed to respond to Developer’s offer to enter into a license agreement within thirty (30) days
after receipt of same, the City shall be deemed to have elected not to pursue the Vantage Campus
Licese Agreement with Developer.
Section 3.3 City Responsibility for Fire Station Development
The City shall be solely responsible for design, construction and development of the Fire
Station on the Fire Station Parcel and shall design and construct the Fire Station to be aesthetically
cohesive with the Development Project. The City shall cooperate with Developer in designing the
Fire Station to ensure that it conforms to the foregoing requirements; provided, however, that the
City may decline to incorporate any changes that Developer requests to the final plans and
specifications that would unreasonably increase the cost of the Fire Station or would otherwise be
inconsistent with the City’s approved use of the Fire Station Parcel.
Section 3.4 Timing for Fire Station Development
The City shall use reasonable efforts to commence construction of the Fire Station within
seven (7) years following Development Agreement Effective Date (“Fire Station Development
Period”). For purposes of this Section 3.4, “commence construction” shall mean receipt of any
written certification or authorization required to obtain building permits or other development
approvals for the construction of the fire station.
Section 3.5 Limitation on Sale/Use of Fire Station Parcel
a) Limitation on Sale of Fire Station Parcel. Consistent with the terms outlined in the
Development Agreement, the City agrees that it will not sell the Fire Station Parcel during the
G-7
Fire Station Development Period. Any proposed sale after the Fire Station Development Period
shall be subject to the provisions of Article 7 herein.
b) Limitation on Use of Fire Station Parcel. After the Fire Station Development Period, City may
develop an alternative public use on the Fire Station Parcel consistent with Table 20.100.002:
Use Regulations for BTP-H zoning district in effect on the Fire Station Parcel (“Alternative
Use Restriction”). After the expiration of the term of the Development Agreement, City may
elect to develop any use consistent with the then applicable zoning on the Fire Station Parcel.
Section 3.6 Prorations
Real property taxes, bonds, assessments and any other similar charges imposed on the Fire
Station Parcel shall be segregated or such segregation shall be estimated by First American Title
Insurance Company (the “Title Company”), and prorated as of the Closing Date on the basis of a
thirty (30)-day month. With respect to any proration based on an estimated segregation by the Title
Company, if and when the charges relating thereto are segregated by the appropriate agency, within
thirty (30) days after such date but in no event later than ninety (90) days after the year in which
the Closing occurs, the Parties shall adjust said proration as necessary, and pay such adjustment to
the appropriate Party.
Section 3.7 Closing Costs
Developer shall pay all applicable charges and expenses associated with the Closing,
including, without limitation: transfer stamps and any other transfer taxes, all escrow fees and
charges, all recording fees, the cost of the Title Policy, and any miscellaneous costs as determined
by the Title Company (collectively, “Closing Costs”).
Section 3.8 Closing Conditions
The Closing is subject to satisfaction of the following closing conditions (“Closing
Conditions”):
(a) Each Party shall have performed all of its obligations under this
Agreement; and
(b) Each Party shall have deposited with the Title Company all
documents, monies and written escrow instructions as may be necessary for conveyance and
acceptance of the Fire Station Parcel.
Section 3.9 Developer’ Deliveries
On or before the Closing Date (as defined below), Developer shall deliver (or cause to be
delivered) to the Title Company the following:
(a) An executed and notarized Grant Deed;
(b) Funds to pay Closing Costs; and
G-8
(c) Such other documents and instruments as may be required by this
Agreement or reasonably requested by the Title Company in order to consummate this transaction.
Section 3.10 City’s Deliveries
On or before Closing Date, the City shall deliver to the Title Company the following:
(a) Such other documents and instruments as may be required by this
Agreement or as may be reasonably requested by the Title Company in order to consummate this
transaction; and
(b) The amount of one dollar ($1) as a sale price.
Section 3.11 Concurrent Conditions
On the Closing Date, the following shall occur, all of which shall be deemed concurrent
conditions:
(a) The Title Company shall record the Grant Deed in the Official
Records of the County of San Mateo; and
(b) Subject to the license rights described herein, Developer shall
deliver (or cause to be delivered) possession of the Fire Station Parcel to the City free and clear of
any tenancies and parties in possession.
ARTICLE 4
Full satisfaction of community benefit commitments
Developer’ performance of this Agreement shall constitute full and complete satisfaction
of its community benefit commitments in exchange for obtaining increased density for the
Development Project, pursuant to S.S.F.M.C. section 20.395.003(A)(2). In furtherance of the
foregoing understandings, in the event Developer has not yet constructed all of the Development
Project buildings within the term of the Development Agreement, the Parties agree that any
Community Benefit Commitments Developer has made prior to the expiration of the Development
Agreement shall nonetheless satisfy any of the Community Benefits Payment allocated to the
Development Project buildings constructed after the Development Agreement expires and the
Project shall not be subject to any additional Community Benefits Payment obligations provided
however, that the Development Project buildings are constructed in accordance with the Project
Approvals as memorialized in the Development Agreement at execution.
Section 4.1 Full and Complete Mitigation.
4.1.1 No Waiver of Right to Protest. The Parties acknowledge that Government
Code section 66020(d)(1) provides that local agencies shall provide a project applicant notice, in
writing, at the time of imposition of fees, dedications, reservations, or other exactions, a statement
of the amount of fees, or a description of the dedications, reservations, or exactions and a
notification that the ninety (90)-day approval period in which the applicant may protest such fees
has begun. Developer agrees that it has voluntarily entered this Agreement and knowingly and
G-9
willingly waives all rights of protest under Government Code sections 66020, 66021 or 66022, or
any other provision of law with respect to the dedication or transfer of the Fire Station Parcel, and
other payments, responsibilities, obligations or consideration as set forth herein; provided,
however, that Developer and its successors-in-interest do not hereby waive the right to protest
future adjustments of the City’s fees, if applicable, as and when such adjustments may be adopted
by the City from time to time, in accordance with Government Code sections 66000, et seq.
4.1.2 Tax/Bond.
Notwithstanding any provision herein to the contrary, nothing contained in this Agreement shall
preclude the City from levying a voter-approved special tax or general obligation bond (ad
valorem) tax or similar bond and/or tax measure against the property subject to the Development
Agreement, provided such measure is uniformly and/or proportionately imposed, to the extent
legally permitted and in accordance with applicable legal requirements, on the properties located
within the boundaries of the City of South San Francisco.
Section 4.2 Certificates of Compliance
The City shall provide any written certification required to obtain building permits or other
development approvals for the construction in the Campus Development (“Certificates of
Compliance”). The City shall not be obligated to refund or otherwise reimburse Developer for
any payments made by Developer in the event Developer fails in any manner to construct any
portion of the Campus Development.
ARTICLE 5
Default Provisions
Section 5.1 Default or Breach
In the event of default, breach or failure to perform any material obligation under this
Agreement or of any of its terms or conditions (“Default”), the Party alleging such Default shall
give the defaulting Party not less than thirty (30) days’ notice of the Default in writing, unless the
Parties extend such time by mutual consent in writing. The notice of Default shall specify the
nature of the alleged Default, and, where appropriate, the manner and period of time in which said
Default may be satisfactorily cured. If the nature of the alleged Default is such that it cannot
reasonably be cured within such thirty (30)-day period, the commencement of the cure within such
time period and the diligent prosecution to completion of the cure shall be deemed a cure within
such period. During any period of curing, the Party charged shall not be considered in Default for
the purposes of termination or institution of legal proceedings. If the Default is cured, then no
Default shall be considered to exist and the noticing Party shall take no further action. Any Default
of a material provision of this Agreement not cured by the expiration of the cure period shall entitle
the Party injured thereby to any and all remedies available by law.
Section 5.2 Claims or Disputes
Claims or disputes between the City and Developer (including, without limitation,
demands for monetary compensation or time extensions) arising from or relating to this Agreement
shall be handled in accordance with this Section 6.2. Promptly after identification of a claim or
G-10
dispute, authorized representatives of the Parties involved shall meet face-to-face to review and
consider the claims (“Settlement Meeting”). The Settlement Meeting shall occur at the earliest
practicable date and shall be for the express purpose of: (1) exchanging and reviewing pertinent
documents and information relating to the matters and issues in dispute; (2) freely and candidly
discussing each Party’s position; and (3) reaching agreement upon a reasonable, compromise
resolution of the claim or dispute.
Section 5.3 Mediation
If any claim or dispute remains unresolved after the Settlement Meeting, the Parties shall
promptly submit the matter to mediation by an experienced, mutually acceptable mediator in San
Mateo County. If the Parties are unable to agree upon a mediator, they shall meet and confer to
establish a mutually acceptable process for the selection of a mediator and coordinate the
mediation. Unless the Parties both agree upon a longer period of time, the mediation shall be held
no later than forty-five (45) days after the Settlement Meeting. No later than ten (10) days prior
to mediation, the Parties shall exchange in a cooperative and forthright manner all documents, data
and information relating to the claim or dispute, excepting only those items protected by the
attorney-client or other applicable privilege. The Parties shall share equally the mediator’s fee for
the mediation. All offers, promises, conduct and statements, whether oral or written, made in the
course of the mediation by any of the Parties, their agents, employees, experts and attorneys, are
confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation
or other proceeding involving the Parties, provided that evidence that is otherwise admissible or
discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the
mediation. If parties are unable to settle the matter after mediation, then either Party may file suit
in the court of competent jurisdiction in San Mateo County.
ARTICLE 6
Transfers and Disclosures
Section 6.1 Transfer Rights
The assignment and transfer provisions contained in Article 8 of the Development
Agreement are hereby incorporated herein by this reference and shall apply with respect to any
transfers or assignment by the parties hereto with respect to this Agreement mutatis mutandis.
Section 6.2 Conveyed Portions of the Property
As set forth herein, the City’s rights with respect to the Property are limited to the Fire
Station Parcel. The remaining portion of the Property shall be deemed released from any
obligation set forth in this Agreement (the “Released Property”). The City and Developer hereby
authorize and direct that any and all policies of title insurance with respect to the Released Property
shall not include or describe the Agreement in matters affecting the condition of title to the
Released Property, or applicable portions thereof, following the recordation of the Grant Deed.
ARTICLE 7
ROFO and rofr rights
Section 7.1 Developer’ Right of First Offer
G-11
7.1.1 Right of First Offer Trigger. Subject to the City’s compliance with the
provisions of the California Surplus Land Act, if, at any time after the expiration of the Fire Station
Development Period, the City desires to sell the Fire Station Parcel to an unaffiliated third party in
a bona fide transaction, the City shall notify Developer in writing (the “ROFO Trigger Notice”)
that it intends to offer the Fire Station Parcel for sale. Developer shall thereafter have a right of
first offer to purchase the Fire Station Parcel upon the terms and conditions of this Section 7.1
(“ROFO”). The ROFO Trigger Notice shall include the City’s proposed purchase price for the
Fire Station Parcel (the “ROFO Offer Price”).
7.1.2 ROFO Exercise Notice. Within sixty (60) days of Developer’ receipt of the
ROFO Trigger Notice (the “ROFO Exercise Period”), Developer may notify the City in writing
(the “ROFO Exercise Notice”) that it desires to exercise its ROFO to purchase the Fire Station
Parcel: (i) at the ROFO Offer Purchase Price; or (ii) if Developer disagrees with the ROFO Offer
Price, Developer shall propose in such notice the terms and conditions of its offer to purchase the
Fire Station Parcel including but not limited to the proposed purchase price for the Fire Station
Parcel (“ROFO Counter-Offer Price”). If the City agrees with the ROFO Counter-Offer Price,
the City shall notify Developer in writing within fifteen (15) days following receipt of the ROFO
Exercise Notice (the “City Acceptance Notice”). If the City disagrees with the ROFO Counter-
Offer Price and/or fails to timely deliver the City Acceptance Notice, the City and Developer shall
within thirty (30) days thereafter use commercially reasonable efforts to determine the purchase
price of the Fire Station Parcel (the “ROFO Purchase Price”). During such 30-day period, the
City shall provide Developer with customary information necessary to determine the ROFO
Purchase Price. If the parties are unable to agree upon the ROFO Purchase Price within such 30-day
period, each party will select an appraiser and the two appraisers will select a third appraiser. All
appraisers selected to determine the ROFO Purchase Price shall come from JLL, Newmark, Eastdil
or CBRE. Upon receipt of the appraisals, the outlier appraisal will be removed from consideration
and the ROFO Purchase Price will equal the average of the two remaining appraisals. Upon
determination of the ROFO Purchase Price, Developer shall have fifteen (15) days to provide the
City with written notice of Developer’s intent to proceed with the purchase of the Fire Station
Parcel at the ROFO Purchase Price (the “ROFO Proceed Notice”). Nothwithstanding anything to
the contrary contained herein, all rights and obligations of Developer related to the ROFO pursuant
to this Section 7.1 are subject to and contingent upon City’s obligations under and compliance with
the California State Surplus Land Act.
7.1.3 Escrow Agreement. Within five (5) business days of the later of (i) the
delivery of the ROFO Exercise Notice if Developer has accepted the ROFO Offer Price, (ii) the
delivery of the City Acceptance Notice if the City has accepted the ROFO Counter-Offer Price, or
(iii) the delivery of the ROFO Proceed Notice if a determination of the ROFO Purchase Price was
required, Developer and the City shall enter into a commercially reasonable escrow agreement
with the Title Company (“Escrow Agent”) which shall authorize Escrow Agent to hold and
disburse the purchase price for the Fire Station Parcel and record the Deed (as defined herein),
each in accordance with the terms thereof, and shall include terms and conditions similar to those
related to the original conveyance of the Fire Station Parcel to the City pursuant to this Agreement
(the “Escrow Agreement”).
7.1.4 Purchase Contract. Upon the acceptance of the terms and conditions within
the ROFO Exercise Notice, City Acceptance Notice, or the ROFO Proceed Notice, as applicable, in
G-12
accordance with the provisions of Section 7.1.2 hereof, this Agreement shall automatically become
a binding and enforceable Purchase and Sale Agreement between the City and Developer. City
and Developer agree that any and all escrow fees, taxes, and transfer costs associated with the
transaction described herein shall be handled in accordance with the terms of the customs located
in the City of South San Francisco for the transfer of commercial property.
7.1.5 No ROFO for Alternative Public Use. Notwithstanding the foregoing,
Developer shall not have a ROFO right if City elects to develop another public use on the Fire
Station Parcel after the expiration of the Fire Station Development Period only if such alternative
public use satisfies the Alternative Use Restriction.
Section 7.2 Developer’ Right of First Refusal
7.2.1 Third Party Sale. Upon compliance with the terms of Section 7.1 above, the
City shall have the option, in its sole discretion, to market the Fire Station Parcel for a sale with a
third party (“Third Party Closing”); provided, however, that Developer shall maintain a right of
first refusal (“ROFR”) on a Third Party Closing subject to the terms of this Section 7.2.
7.2.2 Right of First Refusal.
(a) Notice of Third Party Closing. Subject to the City’s compliance with
the provisions of the California Surplus Land Act, within five (5) business days following receipt
of a term sheet or other expression or letter of intent by a third party to purchase the Fire Station
Parcel (“Third Party LOI”) that is satisfactory to the City in its sole discretion, the City shall
notify and send Developer such Third Party LOI which shall disclose to Developer the
contemplated purchase price for the Fire Station Parcel (the “ROFR Trigger Notice”).
(b) ROFR Exercise Notice. Within thirty (30) days after Developer’
receipt of the ROFR Trigger Notice (the “ROFR Exercise Period”), Developer may notify the
City in writing (the “ROFR Exercise Notice”) that Developer exercises its option to purchase the
Fire Station Parcel at the purchase price set forth in the ROFR Trigger Notice (the “ROFR
Purchase Price”). Within five (5) business days following the ROFR Exercise Notice, Developer
and the City shall enter into an Escrow Agreement with the Escrow Agent which shall authorize
Escrow Agent to hold and disburse the ROFR Purchase Price for the Fire Station Parcel and record
the Deed, each in accordance with the terms thereof. Nothwithstanding anything to the contrary
contained herein, all rights and obligations of Developer related to the ROFR pursuant to this Section
7.2 are subject to and contingent upon City’s obligations under and compliance with the California
State Surplus Land Act.
(c) Purchase Contract. Upon receipt of the ROFR Exercise Notice
pursuant to Section 7.2.2(b) of this Agreement, this Agreement shall automatically become a
binding and enforceable Purchase and Sale Agreement between the City and Developer. For the
avoidance of doubt, the terms of this Agreement shall supersede all provisions of the Third Party
LOI except for the ROFR Purchase Price.
7.2.3 ROFR Conditional Waiver and Re-Offer. In the event that Developer either
(a) fails to give the ROFR Exercise Notice within the ROFR Exercise Period, or (b) fails to
consummate the transaction contemplated in this Section 7.2 for any reason, the City shall be free
G-13
to offer the Fire Station Parcel for sale in the market in accordance with, and subject to, this Section
7.2. Notwithstanding the foregoing, if the City does not sell the Fire Station Parcel to such third
party at purchase price of 95% or more of the ROFR Purchase Price or does not close the sale of
the Fire Station Parcel to such third party within nine (9) months from the expiration of the ROFR
Exercise Period, then if the City still desires to market the Fire Station Parcel for sale, then the City shall be
required to re-offer the Fire Station Parcel to Developer.
7.2.4 ROFR Rights Remain. For the avoidance of doubt, if at any time after
complying with the provisions of Section 7.2, a sale to a third party by the City fails to close,
Developer’ rights under this Section 7.2 shall remain in full force and effect for the remainder of
the ROFO/ROFR Period.
7.2.5 No ROFR for Alternative Public Use. Notwithstanding the foregoing,
Developer shall not have a ROFR right if City elects to develop another public use on the Fire
Station Parcel after the expiration of the Fire Station Development Period only if such alternative
public use satisfies the Alternative Use Restriction.
Section 7.3 ROFO/ROFR Period
7.3.1 The City and Developer agree that Developer shall retain its ROFO and
ROFR rights, as described in Sections 7.1 and 7.2 above, respectively, during the term of the
Development Agreement, as may be extended (“ROFO/ROFR Period”).
7.3.2 The Escrow Agreement will provide the for at least a sixty (60) day due
diligence period and allow Developer to access, inspect and perform its due diligence with respect
to the Fire Station Parcel, and at any time prior to the expiration of the 60-day due diligence period,
Developer can elect, in its sole discretion, to rescind its ROFO Exercise Notice, ROFO Proceed
Notice, or ROFO Exercise Notice, as applicable, or proceed to closing on a closing date reasonably
and mutually agreeable to the parties (“Closing Date”). The ROFO Offer Price, ROFO Counter-
Offer Price, ROFO Purchase Price, or ROFR Purchase Price, as applicable (collectively, the
“Purchase Price”), shall be payable to the Escrow Agent by wire transfer of immediately available
funds as directed by the City on the Closing Date. The Purchase Price shall be adjusted as of the
Closing Date for customary and ordinary prorations with respect to real estate taxes, assessments,
and any other governmental taxes and charges levied or assessed against the Fire Station Parcel.
ARTICLE 8
General
Section 8.1 Governing Law
This Agreement shall be construed in accordance with, and governed by, the laws of the
State of California applicable to contracts to be performed wholly within the State.
Section 8.2 Construction
The Parties acknowledge and agree that each of the Parties and each of the Parties’
attorneys have participated fully in the negotiation and drafting of this Agreement. In cases of
uncertainty as to the meaning, intent or interpretation of any provision of this Agreement, the
G-14
Agreement shall be construed without regard to which of the Parties caused, or may have caused,
the uncertainty to exist. No presumption shall arise from the fact that particular provisions were
or may have been drafted by a specific Party.
“Business Days” means days other than Saturdays, Sundays, and federal and State legal
holidays, and “days” means calendar days. If the time for performance of an obligation under this
Agreement falls other than on a Business Day, the time for performance shall be extended to the
next Business Day. The words “include” or “including” shall be read as if followed by the phrase
“without limitation.” “Shall” is mandatory and “may” is permissive. All references to this
Agreement shall include the Agreement as amended or supplemented in compliance with its terms.
Any reference to a statute or regulation shall include any amendments thereto. The words “Party”
or “Parties” refer only to named Parties to this Agreement. The definitions in this Agreement apply
equally to both singular and plural of the defined term.
Section 8.3 Force Majeure
No Party shall be held responsible or liable for an inability to fulfill any obligation under
this Agreement by reason of an act of God, natural disaster, accident, breakage or failure of
equipment, strikes, lockouts, or other labor disturbances or labor disputes of any character,
interruption of services by suppliers thereof, unavailability of materials or labor, rationing or
restriction on the use of utilities or public transportation whether due to energy shortages or other
causes, war, acts of terrorism, civil disturbance, riot, litigation or other legal action by a third party
arising out of or relating to this Agreement, the Fire Station Parcel or the Fire Station, or by any
other occurrence that is beyond the control of that Party (“Force Majeure”) or its authorized
agents, contractors or assigns. Any Party relying on a Force Majeure shall give the other Party
reasonable notice thereof and the Parties shall use their best efforts to minimize potential adverse
effects from such Force Majeure, including without limitation, subcontracting the obligations of
the Party claiming such Force Majeure to a third party and extending the time periods for
performance.
Section 8.4 Notices
Any notice to be given hereunder to either Party shall be in writing and shall be given either
by personal delivery (including express or courier service), by nationally recognized overnight
courier, or by registered or certified mail, with return receipt requested, postage prepaid and
addressed as follows:
To the City:
______________________
______________________
______________________
______________________
G-15
With a copy to:
______________________
______________________
______________________
______________________
To Developer:
______________________
______________________
______________________
______________________
With copies to:
______________________
______________________
______________________
______________________
Section 8.5 Relationship of Parties
The relationship of the Parties to this Agreement is determined solely by the provisions of
this Agreement. This Agreement does not create and shall not be construed to create any agency,
partnership, joint venture, trust or other relationship with duties or incidents different from those
of parties to an arm’s length contract. Each Party is an independent entity and shall be solely
responsible for the employment, acts, omissions, control and direction of its employees. Except
as expressly set forth herein, nothing in this Agreement shall authorize or empower any Party to
assume or create any obligation or responsibility whatsoever, express or implied, on behalf of or
in the name of the other Party or to bind any other Party in a manner or make any representation,
warranty or commitment on behalf of any other Party.
Section 8.6 No Third Party Beneficiaries
Nothing in this Agreement, whether express or implied, is intended to or shall do any of
the following: (a) confer any benefits, rights or remedies under or by reason of this Agreement on
any persons other than the express parties to it; (b) relieve or discharge the obligation or liability
G-16
of any person not an express party to this Agreement; or (c) give any person not an express party
to this Agreement any right of subrogation or action against any Party to this Agreement.
Section 8.7 Time is of the Essence
Time is of the essence in the performance of each Party’s respective obligations under this
Agreement.
Section 8.8 Amendments/Waivers
No amendment of, supplement to or waiver of any obligations under this Agreement will
be enforceable or admissible unless set forth in writing signed by the Party against which
enforcement or admission is sought. No delay or failure to require performance of any provision
of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any
waiver granted shall apply solely to the specific instance expressly stated.
Section 8.9 Entire Agreement
This Agreement, along with the Development Agreement and the Grant Deed, sets forth
the entire understanding of the Parties relating to the transactions it contemplates, and supersedes
all prior understandings relating to them, whether written or oral. There are no obligations,
commitments, representations or warranties relating to them except those expressly set forth in
this Agreement, the Development Agreement and the Grant Deed.
Section 8.10 Severability
If any provision of this Agreement is held invalid, void or unenforceable but the remainder
of this Agreement can be enforced without failure of material consideration to any Party, then this
Agreement shall not be affected and it shall remain in full force and effect, unless amended or
modified by mutual consent of the Parties; provided, however, that if the invalidity or
unenforceability of any provision of this Agreement results in a material failure of consideration,
then the Party adversely affected thereby shall have the right in its sole discretion to terminate this
Agreement upon providing written notice of such termination to the other Party. In the event any
provision in this Agreement is revised or eliminated pursuant to this Section which prevents the
City from obtaining the Fire Station Parcel, the City shall be entitled to collect the Community
Benefit Fees contemplated in SSFMC section 20.100.003(B) described above.
Section 8.11 Signatures
By signing below, each of the signatories represents and warrants that he or she has been
duly authorized to execute this Agreement on behalf of the Party for whom he or she is signing.
The Mayor or delegated representative further represents and warrants by their signature, that this
Agreement has been duly ratified and approved by the City Council.
Section 8.12 Successors and Assigns
This Agreement shall bind and inure to the benefit of successors and assigns of the Parties,
including successors in ownership of the Property and any portions thereof.
G-17
Section 8.13 Further Assurances
Each Party to this Agreement shall at its own expense perform all acts and execute all
documents and instruments that may be necessary or convenient to carry out its obligations under
this Agreement.
[Signatures on Following Page]
4867-9363-4824.12 G-18
BN 76588575v1
BN 78690258v5
IN WITNESS WHEREOF, this Agreement has been entered into among the Parties as of the
date first set forth above.
CITY:
CITY OF SOUTH SAN FRANCISCO
By:
Name:
Title:
Developer:
HCP FORBES, LLC,
a Delaware limited liability company
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name: ________________
City Attorney
By:
Name:
Title: ___________________________
G-19
BN 78690258v5
EXHIBIT A
LEGAL DESCRIPTION AND MAP DEPICTION OF FIRE STATION PARCEL
G-20
BN 78690258v5
BN 76588575v1 G-21
EXHIBIT B
FORM OF GRANT DEED
[Attached below]
Recording Requested by
and when Recorded, return
to:
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383 &
27388.1(a)(2)
SUBJECT TO DOCUMENTARY
PER REVENUE AND TAXATION
CODE § 11911
APN: XXX-XXX-XXX (SPACE ABOVE THIS LINE RESERVED
FOR RECORDER’S USE)
GRANT DEED
RECITALS
A. HCP Forbes, LLC (“Grantor”) is the owner of the Property (as defined below).
B. The City of South San Francisco (“Grantee”) agrees to purchase the Property, and
Grantor agrees to sell the Property to Grantee, subject to the terms and conditions of the Fire
Station Agreement approved by the City Council on ______ _____, _______ by Ordinance No.
________________________; and
F. Grantor and Grantee agree that the purpose of this Grant Deed is to convey the
Property to the Grantee pursuant to the terms set forth in the Fire Station Agreement.
NOW THEREFORE, FOR VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, Grantor hereby grants to Grantee all that real property located in the City of South
San Francisco, County of San Mateo, State of California and more particularly described in Exhibit
A (“Property”), attached hereto and incorporated into this grant deed (“Grant Deed”) by this
reference.
This Grant Deed may be executed in counterparts, each of which shall be an original and
all of which taken together shall constitute one and the same instrument.
SIGNATURES ON FOLLOWING PAGES
BN 76588575v1 G-21
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
____________________, 2024.
GRANTOR:
HCP FORBES, LLC
By:
SIGNATURES MUST BE NOTARIZED
5531630.1