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HomeMy WebLinkAboutOrd 1279-2000 ORDINANCE NO. 1279-2000 CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO AN ORDINANCE ADOPTING A RESTATED AND AMENDED DEVELOPMENT AGREEMENT FOR THE REMAINING PARCELS OF PHASE II AND PHASE III OF THE TERRABAY DEVELOPMENT RECITALS WHEREAS, the existing Terrabay Specific Plan, Chapter 20.63 of the South San Francisco Municipal Code and the Terrabay Development Agreement allow development of the Terrabay project (together the "existing entitlements"), subject to certain further approvals and entitlements; and, WHEREAS, the Terrabay project is divided into three separate phases, the first of which, Phase I, is currently under construction and nearing completion; and, WHEREAS, in July 1997 the former owner of Phase II and m, SunChase G.A., California I, Inc. ("Applicant"), applied to the City to amend the Terrabay Development Agreement and to approve related entitlements for Phase II and m of the Terrabay development (the "proposed entitlements"); and, WHEREAS, Myers Development Company, L.L.C. assumed interest in the Woods, Commons, Point and Commercial lands in December 1999; and, WHEREAS, the Supplemental Environmental Impact Report prepared in 1998 to 1999, which together with the Environmental Impact Report prepared in 1982 and the Supplemental Environmental Impact Report prepared in 1996, and Addendum to the 1998-1999 Supplemental Environmental Impact Report analyze the anticipated environmental impacts of the proposed Phase II and III; and, WHEREAS, pursuant to Municipal Code section 19.60.050, the Director of Community Development reviewed the application to amend the Terrabay Development Agreement; and, WHEREAS, the Restated and Amended Development Agreement addresses the properties known as the "Remaining Parcels" of Terrabay. The parcels include the lands historically referred to as the Commons, Point and Commercial; and, WHEREAS, the proposed Restated and Amended Development Agreement relates only to the remaining parcels of Phase II and Phase IH; and WHEREAS, pursuant Municipal Code sections 19.60.050 and 19.60.060, the Director of I ri I I~ I Ii Economic and Community Development found the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase llI to be in the proper form, determined that the application was complete, and referred the application and Agreement to the Planning Commission for a public hearing; and WHEREAS, on November 16, 2000, the Planning Commission held a properly noticed public hearing on the proposed Restated and Amended Development Agreement, made the findings required by Municipal Code section 19.060.100 and recommended that the City Council adopt said Agreement; and WHEREAS, on November 21, 2000, pursuant to Municipal Code section 19.060.110 the City Council conducted a property noticed public hearing on the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase llI of the Terrabay Development. NOW THEREFORE, the City Council of the City of South San Francisco does ordain as follows: Section 1. Findings The proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase 1I and Phase III of the Terrabay Development is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Final Terrabay Specific Plan. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of these documents. Bo The proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase III complies with all applicable zoning, subdivision, and building regulations and with the general and relevant specific plan. The City Council independently reviewed the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase Ill, General Plan, the Final Terrabay Specific Plan, Title 15 of the Municipal Code, and applicable state and federal law. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of these documents and advice in the record from City staff. Co The proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase III states its specific duration. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase III. Do The proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase III states the permitted uses of the property subject I [I I I [ Ii thereto. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase III and its determination that Section 3 of the Agreement sets forth the documents which state the permitted uses. mo The proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase III states the permitted density and intensity of use of the property subject thereto. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase III and its determination that Section 3 of the Agreement sets forth the documents which state the permitted density and intensity of use. Fo The proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase In states the maximum permitted height and size of proposed buildings on the property subject thereto. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Amended Development Agreement for Phase II and its determination that Section 3 of the Agreement sets forth the documents which state the maximum permitted height and size of buildings. Go The proposed Amended Development Agreement describes the land which will be dedicated for public purposes from the property subject thereto. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase I1 and Phase Iii and its determination that the Final Terrabay Specific Plan sets forth the documents which state the maximum permitted height and size of buildings. Section 2. The City Council of the City of South San Francisco hereby approves the proposed Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase m of the Terrabay Development, attached hereto as Exhibit 1 and incorporated herein by reference. Section 3. Severability. In the event any section or portion of this ordinance shall be determined invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or portions hereof shall remain in full force and effect. I ri I I~ · Section 4. Publication and Effective Date. Pursuant to the provisions of Government Code Section 36933, a Summary of this Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (i) publish the Summary, and (2) post in the City Clerk's Office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk's Office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This ordinance shall become effective thirty (30) days from and after its adoption. Introduced at a special meeting of the City Council of the City of South San Francisco, held on the 21st day of November , 2000. Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City Council of the City of South San Francisco, held on the 13th day of December, 2000 by the following vote: AYES: Councilmembers Pedro Gonzalez, Karyl Matsumoto and John R. Penna, Mayor Pro Tem Eugene R. Mullin and Mayor Joseph A. Fernekes NOES: None. ABSTAIN: None. ABSENT: None. fJ City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this 13th day of December , 2000. ~ ''-- Mayor J :\W PD~vl nrsw~05\035~AG REE\PHASE3\I _DAadopt_ord_nov 17_final.doc ri I I I 1,~ RESTATED AND AMENDED DEVELOPMENT AGREEMENT FOR REMAINING PARCELS OF PHASE II AND PHASE III OF THE TERRABAY DEVELOPMENT This RESTATED AND AMENDED DEVELOPMENT AGREEMENT is dated December , 2000 ("Restated Agreement"), between Myers Peninsula Company, L.L.C. ("Owner") and the City of South San Francisco, a Municipal corporation ("City") (together "Parties"), organized and existing under the laws of the State of California. RECITALS Ao WHEREAS, California Government Code Sections 65864 through 65869.5 authorize the City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property; and, Bo WHEREAS, pursuant to Government Code Section 65865, the City has adopted rules and regulations, embodied in Chapter 19.60 of the South San Francisco Municipal Code, establishing procedures and requirements for adoption and execution of development agreements; and, Co WHEREAS, City and Owner, in furtherance of the implementation of the Final Terrabay Specific Plan and this Restated Agreement, desire to declare their intentions to focus their efforts and work together to constructively facilitate and achieve the full and complete development and construction of the Project and to undertake such further consistent and appropriate efforts as are necessary to accomplish that goal; and, WHEREAS, this Restated Agreement concerns the tracts of land owned by the Owner ("Property"), particularly described and as shown in Exhibits "A" and "B," attached hereto and incorporated herein by reference; and, Eo WHEREAS, the current condition of title to the Property is depicted in the Preliminary Title Reports issued by Commonwealth Land Title Insurance Company under its Policy Numbers: C, and, dated a copy of which is attached as Exhibit ..... WHEREAS, the Property is the remaining parcels of Phase II and Phase 1II previously referred to as the "Point, Commons and Commercial Parcels" of a three (3) phase project being developed by Owner and its successors in interest (together these "Phases I, II and m" are the "Terrabay Development"); and, WHEREAS, Terrabay, a California general partnership ("Terrabay") has caused to be prepared, and the City has accepted and approved by City Council Resolution No. 159-82 on December 2, 1982, a specific plan for the Property, which is entitled "Specific Plan for Terrabay Development," dated July, 1982 ("Specific Plan"); and, Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 1 of 18 K Lo Mo No P° Qo WHEREAS, the City Council adopted Resolution No. 193-96, dated December 18, 1996, extending the term of the Specific Plan to February 14, 2007; and, WI-I~REAS, Owner has proposed certain modifications to the development plans for the Property in the "Final Terrabay Specific Plan for the Terrabay Development" dated October 19, 2000 ("Final Terrabay Specific Plan"), and the City has reviewed and approved said Final Terrabay Specific Plan concurrently with this Restated Agreement; and, WHEREAS, development of the property is subject to the covenants and conditions contained in the San Bruno Mountain Habitat Conservation Plan and the Agreement related thereto approved and adopted by Resolution No. 139-80 of the City Council on November 15, 1982; and, WHEREAS, on May 18, 1983, the City Council adopted Ordinance No. 921-83 approving and adopting a "Development Agreement" ("Original Agreement"); and, WHEREAS, on September 25, 1996, the City Council approved the first "Amendment to Development Agreement," amending the provisions of the Original Agreement relating to the construction of the Recreation Center and replacing the obligation to construct a child care center with the payment of an in-lieu fee; and, WHEREAS, on January 8, 1997, the City Council approved a "Second Amendment to Development Agreement" extending the term of the Original Agreement to February 14, 2007; and, WHEREAS, the City Council approved a "Woods Only Specific Plan Il" on May 12, 1999; and, WHEREAS, the City Council adopted an "Amended and Restated Development Agreement" for Phase II-Woods on December 15, 1999; and, WHEREAS, together the Original Agreement, the Amendment to the Development Agreement, the Second Amendment to the Development Agreement and the Amended and Restated Development Agreement for Phase II Woods constitute the "Agreement;" and, WHEREAS, the Parties desire to enter into this Restated Agreement for the Property; and, WHEREAS, on March 22, 1989, the City adopted Resolution No. 43-89 approving a Precise Plan ("Precise Plan") and a vesting tentative subdivision map for Phase I of the Project; and, Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 2 of 18 So WHEREAS, this Restated Agreement enumerates those obligations created by the Agreement that relate to the remaining parcels of Phase 11 and Phase 111 only and that have not been satisfied by performance and, for additional consideration exchanged, creates certain additional rights and obligations; and, To WHEREAS, while many of the rights and obligations in this Restated Agreement are consistent with those in the Agreement, if there is a conflict between the rights or obligations under the Agreement and the Restated Agreement with regard to the remaining parcels of Phase II and Phase 1II only, including without limitation those improvements identified in Exhibit "D," the Restated Agreement shall control; and, Ho WHEREAS, all terms, conditions, requirements, exhibits, and vested rights of the Parties under the Agreement with regard to the Property which are not in conflict with and are not inconsistent with the terms of this Restated Agreement shall remain in full force and effect; and, WI-IFREAS, the Restated Agreement only relates to the Property and does not relate to other parcels of Phase II or Phase I. All provisions of the Agreement relating to Phases I and II and the Restated and Amended Development Agreement for the Woods East and West Areas of Phase II of the Terrabay Development are not amended or affected by this Restated Agreement and remain in full force and effect; and; W° WHEREAS, Owner has requested City to undertake certain public improvements for which the Owner was obligated to provide under the Agreement and agrees to pay the City an in lieu fee for the construction of said improvements; and; Xo WHEREAS, to facilitate construction of said public improvements, and in consideration of the property conveyed to Owner by City, Owner conveyed a portion of the property to the City; and; WHEREAS, on October 11, 2000, the City Council approved an agreement and its related exhibits ("Myers Property Agreement") attached as Exhibit "E" with Owner whereby Owner and the City would exchange certain property interests in order to construct public improvements required under the Agreement and 1998-1999 Supplemental Environmental Impact Report; and, go WHEREAS, as part of the Myers Property Agreement; Myers, Eller Media and the City have agreed to relocate the signs currently situated on the property at no cost to the City; and, AA. WHEREAS, the terms of the agreement ("Sign Relocation Agreement") are set forth in Exhibit "F" attached hereto and incorporated herein; and, Restated and Amended Development Agreement Remaining Pamels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 30 fl8 BB. WHEREAS, development of the Property is governed by the terms, conditions and restrictions contained in the Mutual Release and Settlement Agreement between Terrabay Partners, L.L.C., Myers Development Company, L.L.C., the City, San Bruno Mountain Watch and the Center for Biological Diversity, dated March 2000; and, CC. WHEREAS, as required in the 1998-99 Supplemental Environmental Impact Report, development of the Property shall be in accordance with the Mitigation Monitoring and Reporting Program for the Final Terrabay Specific Plan which shall be submitted to the City Council prior to Precise Plan review; and, DD. WHEREAS, in consideration of the rights conferred herein, Owner has agreed to provide a 100 child child-care facility; a Performing Arts Center and to aggressively market the residential units proposed in the Project to tenants of the commercial property; and, EE. WHEREAS, all proceedings necessary for the valid adoption and execution hereof have taken place in accordance with Government Code Sections 65864 through 65869.5 and with Chapter 19.60 of the South San Francisco Municipal Code; and, WHEREAS, the City Council has found that this Restated Agreement is consistent with the. objectives, policies, general land uses and programs specified in the South San Francisco General Plan as adopted on April 21, 1969 and as amended from time to time; and, GG. WHEREAS, the City Council has found that this Restated Agreement is consistent with the Final Terrabay Specific Plan; and, WHEREAS, on ,2000, the City Council adopted Ordinance No. approving and adopting this Restated Agreement with Owner and the Ordinance thereafter took effect on 2000. 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 and in consideration of the mutual covenants and agreements contained herein, agree as follows: 1. Effective Date The effective date of this Restated Agreement shall be the date first appearing above (the "Effective Date"). Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 4of 18 '-" 2. Duration o This Restated Agreement shall expire on February 14, 2007. In the event that litigation is filed against the City and/or Owner challenging approval of this Restated Agreement or the entitlements referenced herein, and said litigation delays implementation of the Final Terrabay Specific Plan or this Restated Agreement, or if said litigation delays construction of the Property, the expiration date of this Restated Agreement shall be tolled from the time the summons and complaint is served on the defendant(s) until the judgment entered by the court is final and not subject to appeal; provided, however, that the total amount of time which the expiration date shall be tolled as a result of such litigation shall not exceed five (5) years. Project Criteria The proposed project consists of a 70 unit attached residential component, including 32 Below Market Rate residential units located off-site, a 96 unit condominium component, and a 665,000 gross square foot office component, which includes a 100-child child care facility, a 150 seat Performing Arts Center and such other structures and improvements as provided in the Final Terrabay Specific Plan (hereinafter "Project"). The criteria which shall govern development of the Project, which criteria shall include, without limitation, permitted uses, density and intensity of use, maximum height and size of proposed buildings, dedication of land, and public improvements, facilities and services, shall be the criteria set forth in the Final Terrabay Specific Plan, and applicable provisions of the South San Francisco Municipal Code as in effect on the Effective Date, including but not limited to Chapter 20.63 thereof. To the extent Owner's obligations to provide any public improvements, facilities or services arise under one or more separate agreements, to which the City may or may not be a party, the obligations of the parties under the separate agreements shall be governed exclusively by the terms of those agreements and shall in no way be affected by termination, cancellation, or expiration of this Restated Agreement, or by default hereunder or breach hereof. Owner and City specifically understand that by this Section 3 and Section 16 of this Restated Agreement, they are surrendering and voiding any rights relating to the Property that had vested under the Agreement to the extent that such rights conflict with the rights created by this Restated Agreement. Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 5 of 18 ----- 4. Subdivision Improvements o Except as otherwise specifically provided in this Restated Agreement, Owner, at its sole cost and expense, shall install, construct and complete the physical public subdivision improvements as approved by the City Engineer included within each final map for the applicable phase of the Project within the property site plan area as development takes place following recordation of the map(s) therefore. City departments shall review and approve the plans in accordance with the provisions of the Final Terrabay Specific Plan.~ In this regard, Owner shall execute for each final map, a Subdivision Improvement Agreement in substantially the same form as Exhibit "G," attached hereto and incorporated herein. Owner shall thereafter comply with all obligations created under any Subdivision Improvement Agreement. Off-site and On-site Improvements Owner shall, at its sole cost and expense, provide all off and on-site improvements identified in the Final Terrabay Specific Plan and in Exhibit "I." Said Improvements will be identified during Precise Plan review. Owner shall complete the off and on-site improvements in accordance with the plans approved by the City Engineer. Setting Boundaries The Parties agree that Owner will, using monuments approved by the City Engineer, at Owner's own cost and expense, set all of the exterior boundaries of the Terrabay Specific Plan District contiguous with the city limit boundaries of the City of South San Francisco prior to the issuance of any building permits for development of the Property within the district. Fees (a) In addition to any other fees required to be paid by Owner by ordinance or by this or other agreements, Owner agrees to pay City's costs (including overhead and administrative costs) for plan checking and processing of documents and for all field quality control inspections necessary for the proper administration of development pursuant to this Restated Agreement, as determined by the City Engineer. Fees paid shall be in amounts as set forth in subsection (d) of this section. (b) In addition to any other fees required to be paid by Owner by ordinance or by this Restated Agreement or other agreements, Owner agrees to pay City's costs incurred by City for geotechnical consultant services associated with the development contemplated herein. In this regard, City shall submit to Owner monthly billings, as necessary, and Owner shall remit payment in full within thirty (30) days of the date of the billing. 1 Final Terrabay Specific Plan, Page III - 6, Section 8. Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 6 of 18 (c) Owner, by this Restated Agreement, agrees to pay costs incurred by City to hire a Certified Engineer to perform engineering consultant services associated with the development contemplated herein. In this regard, City shall submit to Owner monthly billings, as necessary, and Owner shall remit payment in full within thirty (30) days of the date of billing. (d) Throughout the term of this Restated Agreement, unless otherwise provided, the fees and charges identified herein or levied by City for any and all public or private improvements, construction, building or development to be payable by Owner, shall be the lesser of the following: (i) The fees in effect as of the date of application for each map or permit; or (ii) The fees in effect as of the effective date of the Restated Agreement and adjusted annually on July 1st, in an amount equal to the annual percentage increase reflected by the Construction Cost Index for the San Francisco Bay Area published by the Engineering News Weekly. 8. Insurance Owner shall obtain prior to commencement of any work required or authorized under this Restated Agreement and maintain thereafter, for the entire term of this Restated Agreement, the following insurance and receive the approval of the City Attorney as to form, amount and carrier: (a) Worker's Compensation and Employer's Liability Insurance in the statutory coveraee: Owner shall retain Worker's Compensation and Employer's Liability Insurance coverage during all times for which work is undertaken on the Property to construct the Project. In signing this Restated Agreement, the Owner makes the following certification, required by Section 1861 of the California Labor Code: "I am aware of the provisions of Section 3700 of the Califomia Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I will comply with such provisions before commencing the performance of the work of this Restated Agreement." (b) Commercial General Liability Insurance: An insurance policy in an amount not less than $10,000,000.00 for injuries including, but not limited to, death to any one person and subject to the same limit for each person, in an amount not less than $10,000,000.00 combined single limit per occurrence for bodily injury, personal injury and property damage. Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 7 of 18 (c) Automobile Liability (Code 1) Insurance: An insurance policy in an amount not less than Five Hundred Thousand Dollars ($500,000.00) combined single limit per accident for bodily injury and property damage. (d) Contractual Liability Insurance: An insurance policy in the amount of not less than $10,000,000.00, insuring City, its elective and appointive boards, commissions, officers, agents and employees, and Owner against damages sustained by reason of any action or actions at law or in equity, and/or any claims or demands by reason of any breach or alleged breach of any contract, or provisions thereof, or by reason of any contractual liability, or alleged contractual liability arising out of any contract entered into by Owner and/or any of its agents or employees in order to perform the work defined herein. Endorsements on insurance. The insurance required shall contain the following endorsements: (a) "The following are named as additional insureds on the above policies: The City of South San Francisco, its elective and appointive boards, officers, agents, consultants and employees." (b) "Notwithstanding any other provision in this policy, the insurance afforded hereunder to the City of South San Francisco shall be primary as to any other insurance or reinsurance covering or available to the City of South San Francisco, and such other insurance or reinsurance shall not be required to contribute to any liability or loss until and unless the approximate limit of liability afforded hereunder is exhausted." (c) "This insurance which insures the City, its officers, agents, consultants and employees against loss or liability which may arise from each occurrence during the performance of or which may result from any work herein required to be done, also covers claims for property damage to the City by deposit or washing of material onto City streets or other public improvements which may arise from or out of the performance of the work, whether such performance be by the contractor, the subcontractor or any person directly or indirectly employed by him. This insurance includes protection against liability arising from completed operations provided a cause of action therefore existed at the time of Project completion." 10. Evidence of Insurance. Evidence of the insurance described above shall be provided to City prior to commencement of any work under this Restated Agreement and shall be subject to approval by the City Attorney as to form, amount and carrier. The policies of insurance shall also contain a provision indicating that such insurance shall not be reduced or canceled except upon thirty (30) days written notice to City or in the case of non-payment of premiums, ten (10) days written notice. 11. Hold Harmless. Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 8 of 18 Owner agrees to defend (with counsel approved by the City following consultation with Owner) and hold the City, its officers, agents, employees and representatives harmless from liability for any claim for damages, including damages for personal injury or death, which may arise from the approval of this Restated Agreement or the land use entitlement granted herewith or from the direct or indirect operations or activities of Owner or those of its contractors, subcontractors, agents, employees or other persons acting on its behalf which relate to, or are in connection with, the Project. This hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operations or activities referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications or both for the Project, regardless of whether or not City conducted inspections for the Project and regardless of whether or not the insurance policies referred to in paragraphs 8 through 10 are applicable, but Owner shall have no responsibility to the City hereunder for actual or alleged damages claimed by the City where such damages result directly from negligent or intentional acts or omissions of the City or the City's officers, agents, consultants, employees and representatives. 12. Interests of other owners Owner has no knowledge of any reason why Owner, and any other persons holding legal or equitable interests in the Property as of the date on which title to the Property vests of record in Owner, will not be bound by this Restated Agreement, with regard to the Property with the exception of holders of the interests described as Exceptions of the title reports attached as Exhibit "C." The Owner shall not be required to cause such other owners listed as exceptions to the title report to comply with the provisions of this Restated Agreement except the holders of the sign easements as identified in Exhibit "F." 13. Assianment Owner may at any time or from time to time transfer its right, title or interest in or to, all or any portion of the Property. In accordance with Government Code Section 65868.5, the burdens of this Restated Agreement shall be binding upon, and the benefits of this Restated Agreement shall inure to, all successors in interest to Owner. As a condition precedent to any such transfer, Owner shall require the transferee to acknowledge in writing that transferee has been informed, understands and agrees that the burdens and benefits under this Restated Agreement relating to such transferred Property shall be binding upon and inure to the benefit of the transferee. Upon such a transfer, Owner shall notify the City of the name and address of the transferee. Upon the completion of Owner's responsibilities pursuant to this section, Owner shall have no further obligations or benefits hereunder with respect to such transferred Property save for those the performance of which was due prior to the transfer date. Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 9of 18 14. Effect of transfer of real oroperty to another iurisdiction If all or a portion of the real property which is the subject of this Restated Agreement is annexed to or otherwise becomes a part of another City or any county, this Restated Agreement shall terminate as to the portion of the real property no longer subject to the City's jurisdiction. 15. Subsequent discretionary actions of City During the term of this Restated Agreement, subsequent discretionary actions by the City permitted under the roles, regulations, official policies and provisions of the Municipal Code of the City in force as of the date of this Restated Agreement and pertaining to the Property shall not prevent but shall, subject to the exception contained in Section 20.63.1201 of the South San Francisco Municipal Code, be consistent with the Final Terrabay Specific Plan, as it may be amended from time to time, consistent with the intent of this Restated Agreement. 16. Effect of Restated Agreement on Land Use Regulations The rules, regulations, official policies and provisions of the Municipal Code of the City which are generally to govern the permitted uses of the Property, the development and constructions standards and specifications applicable to the Project are, and shall remain, throughout the term of this Restated Agreement, those rules, regulations, official policies and provisions of the Final Terrabay Specific Plan and applicable provisions of the Municipal Code including, but not limited to Chapter 20.63 thereof in force as of the effective date of this Restated Agreement. Notwithstanding the foregoing, the developer shall comply with all relevant provisions of the Uniform Building Code, with local amendments, in effect at the time the construction plans are submitted for plan checking. This Restated Agreement shall not prevent the City in subsequent actions applicable to the Property, from applying new rules, regulations and policies which do not conflict with those rules, regulations and policies applicable to the Property as set forth in Government Code Section 65866, nor shall this Restated Agreement prevent the City from denying or conditionally approving any subsequent application for development of the Project on the basis of such existing or new rules, regulations and policies. 17. Conflict with State or Federal Law In the event that State or Federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more provisions of this Restated Agreement, such provisions of this Restated Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations. 18. Periodic Review Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 10 of 18 During the term of this Restated Agreement, the City shall conduct "annual" and/or "special" reviews of Owner's good faith compliance with the terms and conditions of this Restated Agreement in accordance with the procedures set forth in Chapter 19.60 of the South San Francisco Municipal Code. (a) The City shall deposit in the mail to Owner a copy of all staff reports and, to the extent practical, related exhibits, concerning contract performance at least five (5) calendar days prior to any heating on such periodic review. Owner shall be permitted an opportunity to be heard orally or in writing regarding its performance under this Restated Agreement before the City Council of City or if the matter is referred to the Planning Commission of City, then before said Commission. If the City determines that Owner is in default following completion of the normal scheduled periodic review, written notice of proposed termination or modification of this Restated Agreement shall be given, according to the terms of this Restated Agreement, specifying in said notice the alleged nature of the default, and suggested or potential actions and a reasonable period to cure said default. (b) If Owner is found to be in compliance with this Restated Agreement after the annual review, City shall, upon request by Owner at any time after an annual review, issue a Certificate of Compliance to Owner (the "Certificate") stating that, after the most recent annual review and based upon information known or made known as of the date of such annual review to the City Council, or the Planning Director of City, (1) this Restated Agreement remains in effect and either (2) Owner is not in default or (3) Owner is in default and specifying the nature of the default. Owner may record the Certificate in the official records of the County of San Mateo, State of California. 19. Amendment or cancellation of a~reement This Restated Agreement may be further amended or terminated only in the manner set forth in Government Code Sections 65865.1, 65868, 65869.5 and Chapter 19.60 of the South San Francisco Municipal Code. 20. Events of default Owner shall be in default under this Restated Agreement upon the happening of one or more of the following events: (a) If a warranty, representation or statement made or furnished by Owner to the City is false or proves to have been false in any material respect when it was made; or (b) A finding and determination by the City made following an annual or special review under the procedure provided for in Government Code Section 65865.1 and Chapter 19.60 of the South San Francisco Municipal Code that upon the basis of substantial evidence Owner has not complied in good faith with the terms and conditions of this Restated Agreement, or of any Subdivision Improvement Agreement executed pursuant to Section 4 thereof. Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 11 of 18 21. Procedure upon default (a) Upon the occurrence of an event of default, City may terminate or modify this Restated Agreement in accordance with the provisions of Government Code Section 65865.1 and of Chapter 19.60 of the South San Francisco Municipal Code. (b) The City shall not be deemed to have waived any claim of defect in Owner's performance if, on annual or special review, the City does not propose to terminate this Restated Agreement. (c) No waiver or failure by the City or Owner to enforce any provision of this Restated Agreement shall be deemed to be a waiver of any provision of this Restated Agreement or of any subsequent breach of the same or any other provision. (d) All other remedies at law or in equity which are not otherwise provided for in this Restated Agreement or in City's regulations governing development agreements are available to the parties if there is a breach. (e) The City shall give Owner written notice of any default under this Restated Agreement, and Owner shall have thirty (30) days after the date of the notice to cure the default or to reasonably commence the procedures or actions needed to cure the default. 22. Mortgagee Protection A breach of this Restated Agreement shall not defeat, invalidate, diminish, or impair the lien of any mortgage or deed of trust affecting the Property or any part thereof, made in good faith and for value. (a) Notice of Default to Mortgagee; Right to Cure. With respect to any deed of trust or mortgage ("deed of trust") to be granted by Owner to a lender (such lender may be referred to herein as "Owner's Mortgagee") to secure advances made by the lender on a construction loan to Owner which requires that Owner's Mortgagee be given notice of any default of Owner hereunder and Owner gives notice, in writing, of this request to City, City agrees that whenever City shall deliver any notice or demand to Owner with respect to any breach or default by Owner in commencing, prosecuting or completing construction of the Project as required by this Restated Agreement or in observing or performing any other term, covenant, agreement or condition to be observed or performed on the part of Owner under this Restated Agreement, City, shall at the same time deliver a copy of such notice or demand ("Default Notice") to Owner's Mortgagee as holder of and beneficiary under the deed of trust. In furtherance thereof, City agrees that so long as any principal, interest or other sums remain outstanding on the indebtedness secured by the deed of trust and until such time as the lien of the deed of trust has been extinguished the City shall: (i) Take no action to terminate this Restated Agreement or exercise any other Restated and Amended Development Agreement 12 of 18 Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final remedy under this Restated Agreement, unless Owner's Mortgagee shall fail, within thirty (30) days of receipt of the Default Notice, to cure or remedy or commence to cure or remedy such breach or default; provided, however, that if such breach or default is of a nature that cannot be remedied by Owner's Mortgagee or is of a nature that can only be remedied by Owner's Mortgagee after Owner's Mortgagee has obtained possession of and title to the real property encumbered by the deed of trust (the "Encumbered Real Property"), by deed-in-lieu of foreclosure or by foreclosure of other appropriate proceedings, then such breach or default shall be deemed to be remedied by Owner's Mortgagee if (a) within ninety (90) days after receiving the Default Notice from City, or prior thereto, Owner's Mortgagee shall have acquired title to and possession of the Encumbered Real Property, by deed-in-lieu of foreclosure, or shall have commenced foreclosure or other appropriate proceedings, and (b) Owner's Mortgagee diligently prosecutes any such foreclosure or other proceedings to completion. (ii) If Owner's Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings by reason of any process or injunction issued by any court or by reason of any action taken by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Owner, then the times specified above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition. (b) Owner's Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Restated Agreement, to do any act or thing required of Owner under this Restated Agreement, and to do any act or thing not in violation of this Restated Agreement which may be necessary and proper to be done in the performance and observance of the agreements, covenants and conditions of Owner under this Restated Agreement to prevent termination hereof. All things so done and performed by the Owner's Mortgagee shall be as effective to prevent a termination of this Restated Agreement as the same would have been if done and performed by Owner instead of by Owner's Mortgagee, and the costs incurred by Owner's Mortgagee in doing such acts and things may be added to the indebtedness secured by the deed of trust. No action or inaction taken by Owner's Mortgagee pursuant to this Restated Agreement shall relieve Owner of its obligations under this Restated Agreement. (c) City shall mail or deliver to Owner's Mortgagee a duplicate copy of any and all notices in writing pertaining to any default under or breach of any agreement, covenant or condition of Owner under this Restated Agreement which City may from time to time give to Owner pursuant to the provisions of this Restated Agreement. Such copy shall be mailed or delivered to Owner's Mortgagee at the same time in the same manner as such notices are given by City to Owner. No such notice by City to Owner hereunder shall be deemed to have been given to Owner unless and until a copy thereof shall have been given to Owner's Mortgagee as aforesaid. (d) Subject to the sentence immediately Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final following, City shall not consent to any 13 of 18 23. 24. amendment or modification of this Restated Agreement unless Owner provides City with written evidence of the Owner's Mortgagee consent, which consent shall not be unreasonably withheld, to the amendment or modification of this Restated Agreement sought. Owner's Mortgagee shall be deemed to have consented to such amendment or modification if it does not object to City by written notice given to City within thirty (30) days from the date written notice of such amendment or modification is given by City or Owner to Owner's Mortgagee, reasonable evidence of the delivery of which notice shall be provided to City if given only by Owner. Foreclosure Foreclosure by Owner's Mortgagee of the deed of trust or any sale to Owner's Mortgagee thereunder, whether by judicial proceedings or by virtue of any power of sale contained in the deed of trust, or any conveyance of the Encumbered Real Property from Owner to Owner's Mortgagee through, or in lieu of, foreclosure or other appropriate proceedings shall not require the consent of City or constitute a breach of any provision of or a default under this Restated Agreement; and, following such foreclosure, sale or conveyance, City shall recognize Owner's Mortgagee as "Owner" under this Restated Agreement. In the event Owner's Mortgagee becomes "Owner" under this Restated Agreement, Owner's Mortgagee shall be liable for the obligations of Owner only for the period of time that Owner's Mortgagee remains "Owner." Termination of Restated A~reement Should City intend to terminate this Restated Agreement by reason of any breach or default by Owner as permitted herein, City shall suspend termination of the Restated Agreement if Owner's Mortgagee gives notice, within thirty days, of its intent to execute and enter into an agreement with the City. Said agreement shall ensure Owner's Mortgagee's assumes the obligations of Owner under this Restated Agreement as soon as Owner's Mortgagee obtains possession of and title to the Encumbered Real Property. Owner's Mortgagee must consent to the same agreements, covenants and conditions (except for any requirements which have been fulfilled by Owner prior to the date of such agreement) as are contained in this Restated Agreement and any amendments thereto approved or waived by Owner's Mortgagee. The agreement must also provide that City will not terminate this Restated Agreement if Owner's Mortgagee assumes the obligations of Owner pursuant to the terms of this Restated Agreement. Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 14 of 18 25. Attorneys fees and costs If legal action by either Party is brought because of a breach of this Restated Agreement or to enforce a provision of this Restated Agreement, the prevailing Party is entitled to reasonable attorney's fees and court costs. 26. Validity If any term or condition of this Restated Agreement is for any reason held by a final judgment of a court of competent jurisdiction to be invalid, and if the same constitutes a material change in the consideration for this Restated Agreement, then this entire Restated Agreement shall likewise be invalid, and shall be deemed null and void and of no further force or effect following such judicial determination. 27. No third parties benefited No person other than the City, Owner, or their respective successors and assigns is intended to or shall have any right or claim under this Restated Agreement, this Restated Agreement being for the sole benefit and protection of the parties hereto and their respective successors and assigns. Similarly, no amendment or waiver of any provision of this Restated Agreement shall require the consent or acknowledgment of any person not a Party or successor to this Restated Agreement. 28. Binding effect of Restated Agreement The provisions of this Restated Agreement shall bind and inure to the benefit of the Parties originally named herein and their respective successors and assigns. 29. Relationship of Parties The City and Owner intend by this Restated Agreement to establish that Owner is an independent contractor and not the agent of the City, and do not intend to create a partnership, joint venture, joint enterprise, or any other joint business relationship. Neither Owner nor any of Owner's agents or contractors are or shall be considered to be agents of City in connection with the performance of Owner's obligations under this Restated Agreement. 30. Rules of Construction and miscellaneous terms (a) The singular includes the plural; the masculine gender includes the feminine; "shall" and "will" are mandatory, "may" is permissive. (b) Time is and shall be of the essence in this Restated Agreement. (c) Where a Party consists of more than one person, each such person shall be jointly and Restated and Amended Development Agreement 15 of 18 Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final severally liable for the performance of such Party's obligation hereunder. (d) The captions in this Restated Agreement are for convenience only, are not a part of this Restated Agreement and do not in any way limit or amplify the provisions thereof. (e) This Restated Agreement shall be interpreted and enforced in accordance with the laws of the State of California in effect on the date thereof. (f) This Restated Agreement, including the Recitals herein, and the Final Terrabay Specific Plan contain the entire agreement of the parties hereto relating to the matters set forth in this Restated Agreement and the Final Terrabay Specific Plan and any other prior or contemporaneous statements or understandings respecting this Restated Agreement are merged herein. 31. Relation of the Restated Agreement to the A~reement The Restated Agreement relates only to the remaining parcels of Phase II and Phase 1II and does not relate to Phase I or the Woods property of Phase II. All provisions of: (a) the Agreement which relate to Phase I; (b) the Restated and Amended Development Agreement for Phase II "The Woods" of the Terrabay Development; and (c) the Agreement which relate to property other than the remaining parcels as identified herein, are not amended or affected by this Restated Agreement and remain in full force and effect. The Agreement remains in full force and effect. If there is a conflict between the rights or obligations under the Agreement and the Restated Agreement with regard to the Property, this Restated Agreement shall control. 32. Not a Novation This Restated Agreement is not a novation of the Agreement; it does not substitute for the Agreement. 33. Exhibits Exhibit "A" Boundary Maps of Phase II and llI Exhibit "B" Legal Descriptions of Phase 11 and III Exhibit "C" Title Reports for Phase 11 and III Exhibit "D" Building Improvement Schedule Exhibit "E" Myers Property Agreement with City Exhibit "F" Sign Relocation Agreement Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 16 of 18 Exhibit "G" Exhibit "H" Exhibit 'T' Exhibit "J" Subdivision Improvement Agreement form Restated And Amended Development Agreement For Remaining Parcels Of Phase 12I And Phase llI: Owner Obligations Improvement Responsibilities Letter of Intent of YMCA 34. Notices All notices required or provided for under this Restated Agreement must be in writing and delivered in person or sent by certified mail, postage prepaid. Notice required to be given to the City shall be addressed as follow: City Clerk P.O. Box 711,400 Grand Avenue South San Francisco, CA 94083 With a Copy to: The Office of The City Attorney 400 Grand Avenue, City Hall South San Francisco, CA 94080 Notices required to be given to Owner shall be addressed as follows: Myers Peninsula Company, L.L.C. 101 Second Street, Suite 555 San Francisco, CA 994105 Attn.: Jack Myers, President With a Copy to: Timothy A. Tosta, Esq. Baker & McKenzie Two Embarcadero Center, 24th Floor San Francisco, California 94111-3909 Notices to be given to Owner's Mortgagee(s) under this Restated Agreement shall be required to be given by City only in the event that Owner hereafter advises City of their existence and notice addresses in the manner set forth herein from time to time. A party may change its address for notice by giving notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. IN WITNESS WHEREOF, this Restated Agreement has been executed by the parties on the day and year first above written. Restated and Amended Development Agreement 17 of 18 Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final CITY OF SOUTH SAN FRANCISCO ATTEST: City Clerk By Michael A. Wilson, City Manager APPROVED AS TO FORM Steven T. Mattas, City Attorney MYERS PENINSULA COMPANY, L.L.C. BY: MYERS TERRABAY PARTNERS ATTEST: By By: Jack Myers, President APPROVED AS TO FORM Counsel for Myers Peninsula Company J:\WPD~Mnrsw\405\035~AGREEXPHASE3\l_Terrabay_DevAgr_kaj_Nov29_final.doc Restated and Amended Development Agreement Remaining Parcels of Phase II and Phase III Terrabay November 29, 2000 Rev. 1.4.6.Final 18 of 18 -'"'~ ...... j ~ ~ / / / 0 k Il 000023 ~-~) City of South San Framcisc~ l.,ocs 392, 393, 394, 395, 39/5 ~_n_d_ 397 as shown on lhal ceftin rn~p endr. led "Tcrrabay, South San Francisco, San Ma~eo County, California", t-fled in r~ offic~ of the Coumy Recorder of San lVhm. o County, Stau~ of CaJ_!forni~ on luly 2, 1990 in Book 121 of Maps pages 65 through 79 incisive. F. xcepdng from Lo~s 3~ ami 395 vha~ portion ~f set forth in a certain F!.~! Sudgmevx in l~m/r~'.r Domain, Su~fior Court, San Mar~o County. Case # 379598, recorded March 1, 1996, Series/~96024182, Official Rccords. Asses~'s Parcel Number: loire Pax=el Numbe~. 00'7-641-030 007-661-040 OO7-650-O60 0O7-65OO70 007-65~-0a0 007-650-040 ~2b.O~5-OOO-392-T 121.O654X)0-$gi-T 121-0~~3~6-T 1~1-0~5-000-~97-T ' 0003i Exhibit "C" Restated and Amended Development Agreement For Remaining Parcels of Phase H and Phase III: Title Reports for the Property fi00032 EXItlBIT "C" Commonwealth POLICY OF TITLE INSURANCE COM~ONWEALT~ LAND TITLE [NSLrRANC~ COMPANY Policy/File Number: Pr~mit~: Dar~ of Policy: December 22, 1~99 11:02 a.m. 79851233 1. Name of Tnmmd: My~lStmchaie l, LLC, a I)ehware limited lia§ilit7 company The es~ or interest m tl~ land described herein end which is covered by t~is lx~li~ is: A~ 3. The cs~a[e or in~res[ r~ferr~l m Ii, rein is a~ Dale of Policy ve~r~cl in: I~ers/SUnchase I, LLC, a Delaware lhnited liability cmnpany, . O._~ TI~ !.'_~_ refcn'cd m in ~ policy is situated La ~ County of San Francisco, Sa~e of California, and is m~m pard~hrly dmcribed in Extu~it 'A' auached her~ ami mad~ a pan h~reof. Commonwealth Land Tide Lmaw~_~ee Company O0O033 79851233 SCHEDULE This policy does uo~ insure against loss or damage (!n~ the Company v~ll no~ pay costs, auomeys' fe~s or expenses) which arise by reason of: A. General ~ special taxes, including any personal pro.ny ~axes, aud assessmer~ collected wi~ taxes for ~ fiscal year 1999.-2000. l~usr Iasr~Ikue~: Sccond lus~lu~'ut: $3,808.33 Paid $3,8o8.33 Open Homeownex~' Ex~u~tion None sho~ Asseasor's Parcel No. 007-641-030. Tl~ fotlowing assusment(s} are collected with and are iu:lud~ in the general ami special taxcs shovm above: PHIl:lOSe: Amour: Federal Storm Wamr Program SSI: !;I16.56 Purpose: Fed~Sta~e Storm Amouilt: $1.'/2 CSA ~11 Waiet Assessmem $"/2.00 Total: $1{)0.28 B. ~ mud slmc~ tax~s, hlr. llaiiug any persoual property taxes, ~-_d asse~smen~ collecr~.~[ widm ~xes for ~e ~cal year lggg-2(X10. Fttst Installment: S~cond Instalment: $3,36S.40 Paid Assessor's Parcel No. 007-641.040. shovn~ alxwe: Storm W~t_~ Program SSF $104.38 Purpo~: Fed~St~e Smmi Fee Amour: $1.72 CSA #11 W~r ~ C. ~ ~d spcctal rexes, including any pr~'sonal prnpcrty ta.x~s, end ~ssessmcnrs col]cc:md with texe~ for d~ fiscal year 1999-2000. $6,Q'/1.68 Paid $6,071.68 Open None show~ Assessor's l~rccl No. Thc following shown $!.74 Puzpaae: Fed/State Storm lee Amount: $1.72 CSA #1 ! Waxer Asscssm~.t $72.00 FJflt huKallmcnt: Second InsudLatcnt: Harn~rs' Exemption: $3,996.6S Paid $3,996.65 Open Assessor's Parcel No. 009-650-090. Thc following ass~smen~{s) a~ collect~ with and are included in t]~ gcncraJ and special taxes shown at)ave: Amount Amouzlt: To~al: Fedeag Storm W~-r Pm~-~n SSF :SI.'/¢ Ful/itate STorm F~ $1.72 C. SA #I 1 W~ter Assessment 575 .~ 000035 7~1L~1233 Fh~t Smond ltomeownm's' Exempuon: Assessor's Pare.~t No. 007-650-0:30. E. G~eral ami sim:iai raxe~, inrluding my personal property ~xcs, and ass~$mim~ colle~.ed wi~h rexes for ~ fiscal year 1999-2000. $'2,145.18 Paid Non~ shown The following assmsmem(s) are collec~ecl vrir. h and are included in the g~..ral and sp~ial taxes sl~own above: Purpose: Federal Storm Water Program SSF Amount: $'230.44 Purpose: F~I/State Storm F~ Purpose: CSA #11 Water Asscssm~m Amount: $?2.00 F. General and special taxes, includin~ my person~ property taxes, and a~s~,.sments collcctr~ with tax~ for the fiscal year 1999-20(O. First lns~qllm~r: $2,438.93 Paid Second Installn~nt: $2,438.95 Open Homeowners' F. xeu~ion: Non~ shown Assessor's Parcel No. 007.~0-040. Thc following asacsemcn~(s) arc collccmi wi~h and arc includcd in d~ geamral ami spccial ~ax~s shown above: Purlx~: Federal Storm Way~r Program SSF Amoun~ $217.26 purpose: Fed/Stat~ Smart Fee Amount: $1.72 Purpose: CSA #11 Wau:r Assessmem G. TI~ li~ of mpplmu:ntal tax~, if any, assessed pursua~, to the provisions of Section ?~, et seq. of tlz l~vmue and Taxation Code of tl~ Sm~ of California. 79~1~3 1. An caseraeu~ for ~hc purpose shown below and rialto incidental fl~crem as se~ forth in a docume~ Recorded: May 24, 1884 in Book 37 of Deeds az page 356 and Scpm~uber 22, 11/90 in Book :54 of Deeds az page 189 lmRl"pOS ~: Lo~s 395 and 397 and a portion of land designazed as "Remainder" as shown on thc map 2. An easemcvI for r~e purpose shown below ~d ri~s incidimml r. herem as sex forth in a docum~_n_r_ Pill"pose: Recorded: Thc uansmission and di.m4bu~ion of elecuiciw, a line of r. owera and wires, and d~c conmu~on, mainmmmce, repair, renewal and opera, on of such pipe lines, valvc~ for conveyinl~ and uampor~g ga~, oil and wau~ mged~cr wi~h thc ri~s of tu~ress anct egress May 18, 1925 in Book 174 a~ Page 153: ~luly 27. 1925 in Book 179 at Page 426; July 17, 19:15 in Book 18!/az Page 43 and March 30. 19:119 in Book 408 a~ Page 5¢, Official Records Aff~ms: --Lot. s392 and-398as shown-on-said-m?, referred to herein 3. An cascmcn~ for r. he purpose shown below and riF, hu incid~-r~l zherem as sci forth in a August 31, 19'/8 in Book 374 ai parc 94 of Official Records slope of highway cu~ and fills Lots 394, 395, 396, 397 and a portion of land desi.t-.-.-..t as 'P. cr.~ipde~" as showu on ~ map 4. An easeme~ for ~he purpose shown below and rilles indden~ ~erelo as sex forth tn a documem R~o~ded: December 6. 19'28 in Book 390 az page 139 of Official Records Ptll'po$~: pil~lin~ Lots 396, 397 and a portion of laud designatext as "Remainder' as shown on the. map 5. An easemeaz for ~ InUpose shown below and righ~ im:idenml rhcrem as set forth in a docume~ November 2~, 1935 in Book 670 a~ page 173 of Official Records Lot 397 sad a portion of land dcsi~mmated as 'l~cn~i.ader' as shown on thc 00003'', 7~851.233 6. CovcnmUs, c~ndi~ions and re~uicficns (deleting ~crc~m ~y r~m~om b~ on ~, ~lor, or ~), ~ p~vi~ ~ a d~ ~or~: May 28, 1936 ~ Book 702 at page ~52 of 0~ ~o~ S~ ~~, ~o~ o~ ~, ~n~ or provxd~ for ~ follo~: ~ ~~ over ~c po~on of ~d 1~ ~ for ~e pu~os~ ~re~ ~o~, ~ ~g~ i~~ For: w~r p~ ~ pi~l~ ~: ~t ~94 m ~ho~ on ~c ~p 7. Cove, co,om ~ r~nm (~l~g ~c~om ~y r~om color, or ~), m pmv~ ~ a do~ ~~: ~ch 29, l~ ~ B~k 887 ~ p~e 276 of O~ R~r~ S~d d~, ~o~ o~ ~h~n~, ~ip~ or pmvid~ for ~ foHo~g: ~ ~m over ~e ~on of s~d ~ ~ for ~c p~s~ ~ere~ shown, ~ ~o For: pipe~ ~m~: ~m 396, 3~ ~ a pcmon of 1~ ~i~ m "~~er" ~ sho~ on · c ~ 8. A doc~ ~bj~ m ~ ~ ~, pm~iom ~ ~om ~e~ ~~. C~e~ P~ D~: Nov~ ~t~ by: ~o~ ~~ of ~ ~ ~on: Co~ of Sm ~; V~i~nn ~m, · ~fo~ P~p; Fo~l ~v~, ~. ~~: ~ ~, 1~8~, m D~ No. 83~6~3, O~c~ P~ D~: Nov~ 1982 ~ by: V~i~n ~,s~i~, ~ ~o~ P~~; Po~l ~v~. L~.; ~ ~s~-~so~ ~., · ~,-~ ~o~n ~~: M~ch ~, 1983, ~ ~ No. 8~ 1, O~c~ 9. An easem~u~ for ~he purposes shown b~low and figh~s incidcmal thereto a~ shown or as off. ed for d~ficafion on ~ r~orded map shown bdow Map of: PUsh Affect: Parcel Map Nov~ber 17, 1987, in Book Official Records Slope Lot P~E - Tower Lo~ 3~2 ~ 393 I0. A docume~ subj~:t m all r~c terms, provisio~ and conclidons ~crcLu contained. Emided: Ordinance No. ~21-83, ,approving and Adopting Developmen~ Plan May 4, 1983 Thc City of Sour, b Sa.u Frm~isco, a municipal corporaion December 5, 1988 az Document No. 88164838 of Official Records - 11. A documcn~ subject-~o all the-~z~.s, provisiom and tonal/dons ~h=rein cor~incd. Ap~ 14, 1988 Tcwabay, a C~iforaia ~ Parme~hip ~e Ci~ of S~ Sm F~co, a ~~ ~~n D~ 5, 19~ u D~ No. 881~39 of O~ .) Modificadonts) of sala Devclopme~ Recorded: D~gmbe. r 26, 1996, u Document No. 961~9030, O~c~ Records Modification(s) of said Dcvclopmcm P, gcord~: Octobe~ 29, I99'7, az Docume~ No. 97140181, Official 12. An easm~g for Gr-an~l m: The Couaiy of San Margo March 14, 1989 u Docume~ No. 8gO328T2 of Official Records drainage portions of Lot 394 and 395 as shown on said map 00,0039 13. A d~ subject to all the terms, provisions and conditions therein containS. Dated: Ex~-u~d by and betweea: P,~.,ord~: Agreeme~ Subdivismn Improvements Terrab~y Subdivision Jun~ ~3. Th= City of South San Francisco, a municipal corporauon anci Terrabay, ~ California ~ parmc~hip, by W, W. Dean & Associates, a C~!ifomia corporauon, g~eral pann~ luly 2, 1990 as Document No. 90087567 of Official Records 14. An e, as~v~ for ~h~ purpose shovm bclow _~n~ r/~is incidevial ~hcrcm a,s s~ forth i~ a documc~ Pm'pose: Affects: Suly 18, 1~ as Docum~ No, 900~613 of Official Recards public udli~s Portions of ~e herein deacfibcd la.l. d~e exa~ location of which ca, l~ bg dctgl~...i.~ed by ex~mip~Tion of the abovc.-mcp, tiov,~l insuume~, which coma/ns a comptcr~ legal description of ~ affected portions of said land 15. A doctuncnt subject to all the terms, provisions and conditions therein contained. Dazed: l~,.orded: Resolution No. 56422 ^ugus~ 18, 1992 Board of Sup~'isors of ~he Cotu~ of San Francisco August 24, 199'2, as Docume~ No, 9'2136306, Official Records 16. An ~seme~t for tl~ purpose shown bclow ~ud r/slm in~id~l thereto u set forth in a documen~ Nov__~v_ b~ 17, I~)92 as Docume~ No. 92188433 of Official l~,ords right of way The exact location ~d extent of said easement is not disclosed of record. Re-recorded: November 23, l!~2 as Docume~ No. 9219'2156 of Official Records 17. Aa ~ement for the purpose shown below and rights incidenutl thereto u set forth in document Californh W~r S~rvice Company pipelin~ Ck:wber 4, 1995, as Document No. 95105"/13, Official Records 10 fe~t in width over ere~ marked rcservcd on flied map over lots 394, 39~, 396 79851233 lit. Thc mancrs scl forth hi lhc document shown below which, amo~ o~:r things, conuains ~ provides for: certain cascua:n~; liens and the subordinaxiofi flicrcof; and covenant, conditions and rc~u-ic~ions (deleting any rem'ic~ions iudicafinl~ any prefercnr~, limitation or discr/minafion based on race, color, religion, sex, haudicap, f,~iHal s~ms or ualiouai origin). ' Recorded: ^ugus~ 19, 1996, as Documenl No. 96101444, Official P, ccords Liens, charges and asscssmcm, s levied pursuant m said Declaration: Association: San Bruno Mouniaiu Area Habi~a~ Conservation Trust CiO die San ~ County Directory of Enviroume.u~ Mauagcmcm 19. An cascmcu~ for gac purpose shown below ~.,t rish~s in~i~ ~herem as sc~ forth in a C....~ed m: Ell= ~ Company . Purpose: 9i~, Access, aud Utilitiem Recorded: {uae 25, 1999, am Doctunem N°. 99109932, Official Records ,M'fccu: Refcre. ucc is made ~o~said document for full particulars. F. mifled: · Damt: ~:-ec, ned Recorded: Or~ of pcmpemal Easemems :' August 1999 ~ GA and ~ller Medi~ Compauy September 9, 1999, ~ Documc~ ~o. 9~1~106, Official 21. Any righzs, in~rres~s, or claims which may ~ or arise by rgason of the following fac~s show~ on a survey pla~ cadded "ALTA ! ^CSM L6N~ TITI_-F- SURVEY of r]~e l_ands of Suru:hase O.~. Califoruia, Irc.," dated Novem~x~ 30, 1999 prcl~by Bgan Ken_-as Fouilu A Guard Rail ,n~cuds into said Ira, 1.8' Wsier Valve encroaches into said 1o~, 0.ti' POE IVl=~r { ,t' hi~) encroaches into said Ira, 1.4' A 8" CIVIP Storm Drain Pipe mcromchcs i~o said loz, Thc FoUowiu$ Mauers Afl'~ Lo~ 39'/: A 36' PCP htle~ is locamt within smd lot, IF encroaches Lure said lot 1.0', A slin encroaches into said lo~, 1.$' A CL pipe ia locau~ wifin said lot, 22. Tm-ms and conditions of an unrecardud Disposition Agrceme~ by and beta;ecu Myers Tcrrabay Company, I.LC, a Delaware !tm_ !~.d liability Company and SunC~ese G.A. Califorr~ I, INc., a California Corporation damJ Dec4miber. 1999. 000041 Exhibit "D" Restated and Amended Development Agreement For Remaining Parcels of Phase H and Phase III: Terrabay Building Improvement Schedule 000042 Exhibit "D" Restated and Amended Development Agreement For Remaining Parcels Of Phase H And Phase III Terrabay Building Improvement Schedule Traffic Iml~rovements Payment Terms. City has agreed to construct certain Traffic Improvements required under the SEIR that were originally the Owner's obligation. In lieu of Owner constructing said improvements, Owner shall provide to the City a "Set Aside Letter" from a chartered bank, in a form acceptable to the City Attorney, stating that five million dollars ($5,000,000.00) (the "Set Aside Letter") is available to the City to be used exclusively for the payment of the actual costs of the improvements, or any costs related thereto~ described in subparagraphs (a), (b), (c), (d) and (e) of Section (A)(4) of this Exhibit "D," hereinafter, collectively, "Traffic Improvements." The only conditions, limitations or restrictions on the City drawing funds from the Set Aside Letter is that the City spend funds drawn from the Set Aside Letter for the sole purpose of paying for the actual costs of the Traffic Improvements, and costs related thereto. The Owner's obligation to provide $5,000,000.00 in a Set Aside Letter under this Section "A" shall be the complete and total payment for the Traffic Improvements required for development of the Property as proposed in the Final Terrabay Specific Plan. Once the Set Aside Letter is provided to the City, the City shall be entitled to any interest that accrues on the funds available under the Set Aside Letter before the funds are withdrawn. The amount of interest shall equal the return paid, as of August 1, 2001, under the Local Agency Investment Fund (LAW) established under California state law for the applicable time period before the money is withdrawn and shall be credited at the time the money is disbursed from the account. o The Set Aside Letter identified herein shall be provided prior to Owner receiving a grading permit for any phase of the Project or on or before August 1,2001, whichever occurs first. If Owner does not request a grading permit for any Phase of the Project prior to August 1, 2001, Owner shall not be required to provide the Set Aside Letter. However, Owner shall be required to pay interest in an amount equal to the rate of return on the San Mateo County Transportation Authority's investments to compensate the City for the interest incurred as a result of drawing down five million dollars ($5,000,000) of its loan from the San Mateo County Transportation Authority. Owner shall pay interest as required above until such time as Owner requests a grading permit for any phase of the Project. Upon delivery of the Set Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III of the Terrabay Development - Exhibit D November 12, 2000 Revision 1.3.2 Page 1 of 6 Aside Letter, Owner shall be relieved of its obligation to pay any interest as aforesaid accruing after the delivery date of the Set Aside Letter. 4. The Traffic Improvements under this Section (A) are defined as follows: (a) Construct the hookramps from Highway 101 to Bayshore Boulevard opposite the hotel site adjacent to the former Phase 1II site or with the consent of the City Council, construct interim improvements to the scissors ramps from Highway 101 to Bayshore Boulevard opposite the former hotel site adjacent to the former Phase m site; (b) Construct the new Oyster Point Boulevard Interchange, which includes the Oyster Point flyover, and which connects, by means of a four (4) lane bridge, Oyster Point Boulevard with Airport Boulevard or, with the consent of the City Council, construct an acceptable alternative to the Oyster Point Boulevard Interchange; (c) Reconstruct Bayshore Boulevard from the northern City limit line to Randolph Avenue; (d) Construct traffic signals along Bayshore Boulevard at the hook ramps and at the southern entrance to the Property which portion was formerly identified as Phase 111; (e) Payment of all applicable Oyster Point Interchange Fees. o In consideration for the Traffic Improvements payment under the Set Aside Letter, the provisions of Exhibit E, Section IV of the Agreement relating to the scheduling of residential and commercial building phases are hereby deleted in their entirety as they relate to the Property. o Notwithstanding any provisions of this Restated Agreement to the contrary, excluding the Traffic Improvements obligations as contained in Section (A)(4)(a) through (A)(4)(e), the provisions of the Agreement for the Terrabay Development site remain in full force and effect between the parties. Bo Procedure for Phasin~ of Develooment Aoorovals: Pursuant to the Final Terrabay Specific Plan, Owner intends to complete the Project according to phase. The first phase of construction proposed is the Commercial and Residential Components, including restoration of the property as contemplated in the Final Terrabay Specific Plan. The Residential Component consists of 70 on-site attached single family units and 32 Below Market Rate units located off-site. Because the BMR units are located off-site, the time for completion and conditions pertaining to the development of those units will differ from that of the 70 attached units. As such, the BMR units are addressed separately under Section I(A) of Exhibit H of this Restated Agreement and are not considered to be a part of the Phase I construction of the Project for application and satisfaction Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III of the Terrabay Development - Exhibit D November 12, 2000 Revision 1.3.2 Page 2 of 6 Co of the conditions set forth in C immediately below, except as otherwise noted below. The second phase of the Project is the 96 unit Condominium Component. City agrees to permit Owner to grade the condominium site at the same time as grading begins for Phase I. The specific requirements for grading of Phase II will be discussed and agreed to between the Parties prior to any grading on the Property. As proposed in the Final Terrabay Specific Plan, the City will cooperate with Owner to facilitate phased construction of the Project by timely reviewing the Plans, specifications and applications for permits submitted for each Phase of development. Said review and any comments on the Plans submitted shall be provided in accordance with the time periods specified by State law and local ordinances. 1. Phase I: Issuance of Gradim, Permits. Grading permits, including any permits for any rough grading, may be issued by the City for Phase 1 only after: (a) A Vesting Tentative Map for the Project has been approved by the City; and, (b) A Precise Plan for Phase I has been approved by the City; and, (c) Owner provides the Set Aside letter identified in Section (A); and, (d) A Subdivision Improvement Agreement and bonds related to the installation of public improvements for Phase I have been executed; and, (e) A final subdivision map for Phase I has been approved by the City Council and recorded with the County Clerk. 2. Phase I: Issuance of Buildin~ Permits: Building permits may be issued by the City for any structures in Phase I, including model homes, only after: (a) Grading permits for Phase I have been approved by the City Engineer; and, (b) A precise plan for Phase I has been approved by the City Council; and, (c) A final subdivision map for the Phase I has been approved by City Council and recorded with the County Clerk; and, (d) All applicable provisions of the Habitat Conservation Plan for the Remaining Parcels of Phase 12[ and Phase llI, including the dedication of open space to San Mateo County to the extent dedication is required under the Habitat Conservation Plan, have been complied with to the satisfaction of the Chief Planner; and, Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III of the Terrabay Development - Exhibit D November 12, 2000 Revision 1.3.2 Page 3 of 6 (e) (19 (g) o Improvement contracts together with bonds satisfactory to the City Engineer for their completion have been executed for construction of the public improvements identified in the Final Terrabay Specific Plan and as identified during Precise Plan review; and, City has received the required Set Aside Letter for items identified in Section (A); and, Owner has conveyed to the City the land identified in the Myers Property Agreement ("Property Agreement") free and clear of all sign easements and sign structures. In the event Owner is unable to perform its obligations under the Property Agreement, Owner shall undertake all steps necessary in order to convey to the City fee title to the property identified in Section 1.1 of the Myers Property Agreement, free of the sign easements and structures that currently encumber the property. Owner agrees that such steps may include paying the City's costs to acquire the property through condemnation. In the event condemnation is required, Owner shall pay all costs of acquiring the property and extinguishing the sign easements associated therewith. Costs of condemnation shall include, but are not limited to, property and sign acquisition, expert witness fees, appraisal fees and attorneys fees and costs. Phase I: Issuance of Certificates of Occul~ancv. Certificates of Occupancy may be issued by the City for any structures on Phase I excluding the non-residential use of model homes, only after: (a) Supporting utility systems, roadway systems, parking and landscaping have been installed for those buildings for which occupancy permits have been requested, to the satisfaction of the City Engineer, Chief Planner and Director of Recreation and Community Services; and, (b) Landscaped and irrigated fire breaks have been installed for Phase I to the satisfaction of the Fire Chief and Director of Recreation and Community Services along the perimeter of the dwelling units and other buildings for which occupancy permits are being requested; and, (c) Drainage catchment basins and improvements related thereto have been installed for Phase I to the satisfaction of both the City Engineer and the County of San Mateo Director of Public Works along the perimeter of the dwelling units and other buildings for which occupancy perm/ts are being requested; and, (d) Owner has contracted for the acquisition of a site or sites suitable for construction of the BMR Units; and, Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III of the Terrabay Development - Exhibit D November 12, 2000 Revision 1.3.2 Page 4 of 6 (e) Construction has begun on the trail head and trail east of the Terrabay Park phase from Terrabay Drive to the satisfaction of the Director of Recreation and Community Services upon receiving all necessary City and County approvals, which approvals shall be diligently pursued by Owner; provided, however, this obligation shall not prevent Owner from receiving a Certificate of Occupancy in the event the County refuses to grant approvals required to construct the trail in the location presently identified. 4. Phase II: Issuance of Gradin~ Permits: Grading permits, including any permits for any rough grading, may be issued by the City for Phase II only after: (a) A Vesting Tentative Map for the Project has been approved by the City; and, (b) A Precise Plan for Phase II has been approved by the City; and, (c) Owner provides the Set Aside letter identified in Section (A); and, (d) A Subdivision Improvement Agreement and bonds related to the installation of public improvements for Phase II have been executed; and, (e) A final subdivision map for Phase II has been approved by the City Council and recorded with the County Clerk. 5. Phase II: Issuance of Building Permits: Building permits may be issued by the City for any structures in Phase II, including model units only after: (a) Grading permits for Phase II have been approved by the City Engineer; and, (b) A precise plan for Phase II has been approved by the City Council; and, (c) A final subdivision map for the Phase 11 has been approved by City Council and recorded with the County Clerk; and, (d) All applicable provisions of the Habitat Conservation Plan for the Property, including the dedication of open space to San Mateo County, to the extent dedication is required under the Habitat Conservation Plan, have been complied with to the satisfaction of the Chief Planner; and, (e) Improvement contracts together with bonds satisfactory to the City Engineer for their completion have been executed for construction of the public improvements identified in the Final Terrabay Specific Plan and as identified during Precise Plan review; and, Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III of the Terrabay Development - Exhibit D November 12, 2000 Revision 1.3.2 Page 5 of 6 (f) City has received the required Set Aside Letter identified in Section A. Phase H: Issuance of Certificates of Occuoancv. Certificates of Occupancy may be issued by the City for any structures on Phase II excluding the non-residential use of model units, only after: (a) Supporting utility systems, roadway systems, parking and landscaping have been installed for those buildings for which occupancy permits have been requested, to the satisfaction of the City Engineer, Chief Planner and Director of Recreation and Community Services; and, (b) Landscaped and irrigated fire breaks have been installed for Phase II to the satisfaction of the Fire Chief and Director of Recreation and Community Services along the perimeter of the dwelling units and other buildings for which occupancy permits are being requested; and, (c) Drainage catchment basins and improvements related thereto have been installed for Phase II to the satisfaction of both the City Engineer and the County of San Mateo Director of Public Works along the perimeter of the dwelling units and other buildings for which occupancy permits are being requested; and, (f) Construction is substantially complete on the trail head and trail east of the Terrabay Park phase from Terrabay Drive to the satisfaction of the Director of Recreation and Community Services upon receiving all necessary City and County approvals, which approvals shall be diligently pursued by Owner; provided, however, this obligation shall not prevent Owner from receiving a Certificate of Occupancy in the event the County refuses to grant approvals required to construct the trail in the location presently identified. F:\WPD'uMNRSWX405\035XAGREE~PHASE3\ 1 _TerB ay_Exhibi~D_kaj_Nov 12_final I .doc Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III of the Terrabay Development - Exhibit D November 12, 2000 Revision 1.3.2 Page 6 of 6 Exhibit "E" Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III: Myers Property Agreement with City AGREEMENT THIS AGREEMENT is made and entered into this ~ day of ,2000, by and between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation (the "CITY"), and MYERS PENINSULA COMPANY LLC, a Delaware limited liability company ("MYERS"). RECITALS WHEREAS, MYERS is developing a project described as the "Final Terrabay Specific Plan Property" (the "Project"), within the Terrabay Development which is located within the CITY; and WHEREAS, CITY and MYERS desire to cooperate by exchanging certain property interests, for no additional monetary consideration, in order to facilitate the Project and certain adjacent roadway and utility improvements; and WHEREAS, in order to facilitate the construction of a joint utility trench and the grading of the adjacent portion of B ayshore Boulevard, MYERS is willing to grant to CITY a temporary construction easement to permit the temporary placement of an overhead utility line; and WHEREAS, CITY requires the use of a portion of MYERS property for the temporary placement of construction trailers and other equipment for Phases II and III of the Oyster Point Interchange Project and MYERS is willing to grant such use, provided it does not interfere with other uses of the property and can be terminated when MYERS requires access to the site for construction work; and WHEREAS, CITY requires temporary access to a portion of MYERS property to construct retaining walls within the Bayshore Boulevard right of way that will benefit MYERS; and WHEREAS, to assist in the construction of improvements to Bayshore Boulevard, MYERS is offering to dedicate to CITY a fee title to that certain real property described in Section 1.1 below; and WHEREAS, CITY previously acquired a former portion of the Terrabay Development site but has determined that a portion of this acquisition is no longer needed and is willing to convey the property in fee to MYERS that certain real property described in Section 2 below. THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows: 1. Transfers by MYERS. As part of this Agreement, MYERS agrees to convey to City the following interests: 1.1 Dedication of Right of Way for Bayshore Boulevard. To accommodate CITY's requirements, MYERS agrees to convey and dedicate to City by quitclaim deed the real property described in Exhibit A. 1.2 Temporary Construction Easement. To accommodate CITY's requirement of temporary access to a portion of MYERS property in order to construct retaining walls within the 1 C: 0 9 0 5 0 Bayshore Boulevard right of way that will benefit MYERS, MYERS shall convey to CITY a temporary construction easement in substantially the form attached as Exhibit B. 1.3 Temporary Construction Trailer Easement. To accommodate CITY's requirement to use a portion of MYERS property in order to temporarily place construction trailers and other equipment for Phases II and III of the Oyster Point Interchange Project, MYERS shall convey to CITY a temporary construction trailer easement in substantially the form attached as Exhibit C. 1.4 Temporary Pole Line and Guy Anchor Easement. To accommodate construction of a joint utility trench and the grading of the adjacent portion of Bayshore Boulevard, MYERS has conveyed or will convey to the CITY a temporary pole line and guy anchor easement, in substantially the form attached as Exhibit D. 2. Transfer by CITY. CITY agrees to convey to MYERS by quitclaim deed all of its right, title and interest to the property by means of a deed substantially in the form attached as Exhibit E, and subject only to such exceptions as indicated in the title report. 3. Exchange. The exchange of fee titles contemplated under this Agreement are exchanges of real property that are roughly equivalent in value. The parties intend that the contemplated exchange shall be accomplished in order to provide full consideration to each party to the Agreement. 4. Conditions Precedent. The obligations of each party described in sections 1 and 2 are subject to each of the following: Concurrent Conveyances. All conveyances and transfers must occur simultaneously, except as otherwise mutually agreed. 4.1 Termination of Billboard Easement. MYERS shall have received a conveyance terminating the existing billboard easements as contemplated in the Sign Relocation Agreement ("Exhibit F') attached hereto and incorporated herein. 4.2 Vacating of Public Street. CITY shall have vacated any public street and public utilities interest affecting the property pursuant to the procedure outlined in California Street and Highways Code 8300 et seq. 4.4 Title Policy. The property to be conveyed pursuant to this Agreement shall be subject only to such exceptions as reflected in the title report and approved by grantee. MYERS shall obtain a CLTA or ALTA title policy, as MYERS elects, from Old Republic Title Company ("Title Company") insuring title for the property conveyed pursuant to Section 2 in MYERS for $100,000, subject only to approved exceptions. MYERS will obtain a title policy insuring title in CITY for the property conveyed pursuant to Section 1.1 for $100,000, subject only to such approved exceptions. 4.5 Environmental Conditions. The Phase I environmental audit conducted on MYERS behalf shall be satisfactory to MYERS. 2 0 0 9 0 51 5. Escrow. 5.1 Delivery of Executed Agreements; Escrow Agent. The parties agree that Old Republic Title Company, 350 California Steer, Suite 1220, San Francisco, CA 94104 shall act as Escrow Agent and shall open an escrow with Escrow Agent. The escrow instructions shall provide for the deposit by each party of the documents described in Sections 1 and 2 at least one day prior to Closing. 5.2 Closing Expenses. MYERS shall pay all title insurance premiums, escrow fees, recording costs, and all other Closing costs. 5.3 Closing. Escrow shall close within ten (10) days of satisfaction or waiver of the conditions precedent set forth in Section 4. 5.4 Waiver of Appraisals. The parties hereby waive any and all real property appraisals that they may be entitled to under federal, state and local law. 5.5 Mutual Indemnification of Parties. Upon recordation of the interests in the property identified in Sections 1 and 2 of this Agreement, the CITY agrees to defend, indemnify, and hold MYERS harmless (including, without limitation, attorney's fees and costs) in connection with any and all claims, liabilities, obligations, and actions rising out of CITY's use, occupancy or occupation of the said property. Upon recordation of the interest in the property identified in Sections 1 and 2 of this Agreement, MYERS agrees to defend (with counsel selected by CITY), indemnify, and hold CITY harmless (including, without limitation, attorney's fees and costs) in connection with any and all claims, liabilities, obligations, and actions arising out of MYERS use, occupancy or occupation of the said property. 5.6 Hazardous Materials: As used herein, the term "Hazardous Materials" or "Hazardous Substances" shall mean: (a) any substances defined, regulated or listed (directly or by reference) as "hazardous substances," "hazardous materials," "hazardous wastes," "toxic waste," "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. '9601 et seq. CCERCLA"); (ii) the Hazardous Materials Transportation Act, 49 Id.S.C. '1802 et seq.; (iii) the Resource Conservation and Recovery Act, 42 U.S.C. '6901 et seq.; (iv) the Clean Water Act, 33 U.S.C. '1251 et seq.; (v) California Health and Safety Code "25225-25117, 25249.5, 25249.8, 25281, and 25316; and (vi) the Clean Air Act, 42 U.S.C. '7901 et seq.; and (vii) California Water Code ' 13050; (b) any amendments to such enumerated statutes or acts; and (c) any other hazardous or toxic substance, material chemical, waste or pollutant identified as hazardous or toxic or regulated under any 'other applicable federal, state or local environmental laws, including without limitation, friable asbestos, polychlorinated biphenyls CPCBs"), petroleum, natural gas and synthetic fuel products and by-products. 5.6.1 As used herein, the term "Liability" shall mean and include any one or more of the following, based on or arising out of the release or presence of Hazardous Materials in or on the property interests conveyed pursuant to this Agreement: any orders, actions, injunctions or expenses (including, without limit, 3 any expenses associated with the response, removal or remediation of such Hazardous Materials). 5.6.2 MYERS shall indemnify, defend (with counsel selected by CITY) and hold harmless CITY, from and against all Liability for that property identified in Section 1.1 of this Agreement. MYERS agrees that upon receipt of any notices of the presence of, or a release or potential release of Hazardous Materials on or under the Property for which it is liable under the provisions of this Agreement, MYERS shall timely initiate and diligently pursue and complete all appropriate response, remediation and removal actions for the release, within the deadlines specified by applicable laws and regulations. 5.6.3 CITY shall indemnify, defend (with counsel selected by MYERS) and hold harmless MYERS, from and against all Liability for that property identified in Section 2 of this Agreement. CITY agrees that upon receipt of any notices of the presence of, or a release or potential release of Hazardous Materials on or under the Property for which it is liable under the provisions of this Agreement, CITY shall timely initiate and diligently pursue and complete all appropriate response, remediation and removal actions for the release, within the deadlines specified by applicable laws and regulations. 5.6.4 So long as each party is not in material breach hereof, and is discharging its defense and indemnity obligations in a reasonable and responsible manner for a Liability, and it has accepted and is discharging responsibility hereunder for such liability without any reservation of rights, each party hereby assigns to the other all of its present and future rights to recover, or receive contribution, from any and all potentially responsible third parties for those costs, expenses and fees incurred by the party pursuant to this Indemnity. 5.6.5 Subject to the foregoing, each party hereby also assigns its rights to the · other party to bring an action against or otherwise cause any or all of such potentially responsible parties to take responsive actions, and to remove and remediate the Hazardous Materials. Each party agrees to cooperate fully with the other in the preservation and prosecution of all such claims and private enforcement actions. 5. 6. 6 So long as the parties are not in material breach hereof, and are discharging their defense and indemnity obligations in a reasonable and responsible manner for a Liability, and has accepted responsibility hereunder for such liability without any reservation of rights, each party shall have control over their respective defense of such Liability without any reservation of rights, and over all negotiations relating to the settlement thereof. 6.0 Miscellaneous Provisions. 6.1 Effective Date. This Agreement shall become effective on the date first above written. 4 00,9053 6.2 Severability. Invalidation of any provision of this Agreement, or of its application to any person, by judgment or court order shall not affect any other provision of this Agreement or its application to any other person or circumstance, and the remaining portions of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as invalidated would be um'easonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement. 6.3 Exhibits. The Exhibits referenced in and attached to this Agreement are deemed incorporated into this Agreement in their entirety. 6.4 Entire Agreement. This Agreement (including the Exhibits) contains all the representations and the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements written or oral. 6.5 Construction of Agreement. The provisions of this Agreemem shall be construed as a whole according to their common meaning and not strictly for or against any party in order to achieve the objectives and purposes of the parties. Captions are included only for convenience of reference and shall be disregarded in the construction and imerpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa. 6.6 Further Assurances; Covenant to Sign Documents. Each party covenants, on behalf of itself and its successors and assigns, to take all actions and to do all things, and to execute, with acknowledgment or affidavit if required, any and all documents and writings, that may be reasonably necessary or proper to achieve the purposes and objectives of this Agreement. 6.7 Binding Upon Successors. All of the provisions, agreements, rights, powers, standards, terms, waivers, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective successors in interest, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective successors in interest. 6.8 Governing Law. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. 6.9 Counterparts. For convenience, the signatures of the parties to this Agreement may be executed and acknowledged on separate pages or in counterparts which, when attached to this Agreement, shall constitute this as one complete Agreement. 6.10 Time. Time is of the essence of this Agreement and of each and every term and condition hereof. CC005/9. ,-~ 790200.2 6.11 Notices. Any notice given under this Agreement shall be in writing and given by delivering the notice in person, by commercial courier or by sending it by registered or certified mail, or Express Mail, return receipt requested, with postage prepaid, to the mailing address listed below or any other address notice of which is given. For the convenience of the Parties, copies of notices may also be given by telefaesimile, to the telephone number listed below or such other numbers as may be provided from time to time. CITY: City of South San Francisco City Manager 400 Grand Avenue, City Hall South San Francisco, CA 94080 Attention: Michael A. Wilson, City Manager MYERS: Myers Peninsula Company LLC 525 Market Street, Suite 3440 San Francisco, CA 94905 Attention: Tom Mallonee Facsimile: (415) 777-3331 With a copy to: Hanson, Bridgett, Marcus, Vlahos & Rudy 333 Market Street, Suite 2300 San Francisco, CA 94105 Attn: James D. Holden, Esq. Facsimile: (415) 541-9366 Any mailing address or facsimile number may he changed at any time by giving written notice of such change in the manner provided above at least ten (10) days prior to the effective date of the change. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal receipt actually occurs or, if mailed, on the delivery date or attempted delivery date shown on the remm receipt. A Party may not give official or binding notice by facsimile. The effective time of a notice shall not be affected by the receipt, prior to receipt of the original, of a facsimile copy of the notice. 6 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first mentioned above by their duly authorized representatives. MYERS PENINSULA COMPANY LLC, a Delaware Limited Liability Company CITY OF SOUTH SAN FRANCISCO By: MYERS TERRABAY COMPANY I, LLC By: Michael A. Wilson, City Manager By: Name: Jack E. Myers Title: Manager and Sole Member ATTEST ATTEST: By: By: Sylvia Payne, City Clerk APPROVED AS TO FORM: By: Steven T. Mattas, City Attorney J:\WPDkMm'sw\405\001 kAGREEk2000kMyers_.S SF__property_trans fer_Oct4.doc 7 Exhibit "F" Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III: Sign Relocation Agreement 009057 SIGN RELOCATION AGREEMENT THIS AGREEMENT is made and entered into this day of October, 2000 by and between the City of South San Francisco, a municipal corporation ("CITY"), Eller Media Company, a Delaware corporation ("ELLER") and Myers Peninsula Company, L.L.C., a Delaware limited liability company ("MYERS"). RECITALS WHEREAS, Eller is the owner of four (4) sign structures (the "Existing Sign Structures") located within the City limits along Bayshore Blvd. (California Highway 101) at three separate locations within Lots 395 and 396 of MYERS' property, as more fully described on Exhibit "A" attached hereto and incorporated by reference; and WHEREAS, CITY intends to widen Bayshore Blvd. to an extent that would require removal of the Existing Sign Structures, through condemnation of the Existing Sign Structures or an agreed relocation thereof; and WHEREAS, CITY's laws and California Business and Professions Code Section 5412 allow the use of relocation agreements to appropriately relocate outdoor advertising displays when necessary to avoid the cost and expense associated with condemnation of such displays; and WHEREAS, CITY desires that ELLER remove all the sign structures and faces identified on Exhibit "A" without payment of monetary compensation from CTIY; and WHEREAS, ELLER is willing to remove the sign structures and faces as herein provided, and to waive its fight to monetary compensation for said removal from the CITY, provided it is allowed to erect the following replacement structures (collectively called the "New Eller Faces") as provided in this Agreement. NOW THEREFORE, the parties agree as follows: 1. ELLER shall apply for all building and other permits required by CITY, CalTrans, or other jurisdictions necessary for the construction and operation of the New Eller Faces located within the City of South San Francisco within 30 days of the execution of this Agreement. Upon issuance of said permits, ELLER shall remove all structures and faces identified in Exhibit "A" at no cost to the CITY, in accordance with the schedule specified below; 2. CITY will not object to ELLER's efforts to transfer two of its existing landscape freeway permits (permit numbers 10904, 10905, 10906, or 10907) to a non-adjacent jurisdiction; 3. CITY shall allow ELLER to add an additional face to the existing structure located near Grand Avenue as described in Exhibit "B" attached hereto and incorporated by reference. Said additional face shall be the same dimension as the existing face on the structure and in no event shall be larger than 14 feet by 48 feet; 4. Prior to erecting the second face on the structure, ELLER shall replace the two-pole structure identified in Exhibit "B" with a single-pole structure; Sign Relocation Agreement Page 1 of 3 0 0 5 5. CITY shall allow ELLER to raise the height of the structure identified in Exhibit "B" no more than 14 feet such that the maximum height of the structure would be forty-seven (47) feet; 6. CITY shall allow ELLER to add a second face to the existing structure located on property owned/operated by Union Pacific Railroad/Public Storage at 11 Oyster Point Blvd identified in Exhibit "C" attached hereto and incorporated by reference. Said additional face shall be no larger than 14 feet by 48 feet; 7. CITY shall permit ELLER to relocate the single-pole structure within the existing easement area subject to the written consent of the property owner; 8. Prior to any demolition, construction or other modifications to the sign structures subject to this Agreement, ELLER shall obtain all necessary permits required by law for said construction, demolition or modifications; 9. Upon submittal of building permit applications by ELLER for the activities authorized pursuant to this Agreement, CITY shall process and approve all permits for construction and operation of the New Eller Faces in the locations shown on Exhibits "B" and "C." However, CITY shall not be required to approve an incomplete or defective application for said permits and may require ELLER to comply with State codes governing the construction of such structures; 10. Prior to approval of building permits as described in paragraph 9 above, and within 15 days of the execution of this Agreement, ELLER shall apply for demolition permits for the removal of the Existing Sign Structures identified in Exhibit "A." The Existing Sign Structures shall be demolished and removed within 30 days following issuance of all required permits for the New Eller Faces located within the City of South San Francisco. Construction of the New Eller Faces shall commence within 120 days of the issuance of all required building permits for said construction; 11. Any building permits issued for the New Eller Faces shall be made conditional on the full performance of ELLER's obligation under this Agreement; 12. Upon execution of this Agreement by all parties, ELLER agrees to relinquish all easements or other property fights it presently maintains on the structures identified in Exhibit "A" by conveying the easement by grant deed, free and clear of all claims, liens, encumbrances, to MYERS or the CITY, whoever owns the servient tenement for such easement, promptly upon removal of the Existing Sign Structures as required under this Agreement; 13. ELLER shall not erect any reader boards, extensions, cutouts or make any other modifications not authorized pursuant to this Agreement to the New Eller Faces and/or their structures to the extent said modifications would increase the size of the existing sign face (s); 14. ELLER shall be entitled to own, operate and maintain the New Eller Faces as conforming structures notwithstanding the adoption of any CITY ordinance to the contrary and without limitation as to time, amortization or "sunset" periods. Nothing in this paragraph shall be construed to permit ELLER to own, operate or maintain any sign in a manner inconsistent with state or federal law. Any sign placed adjacent to Highway 101 shall be consistent with the outdoor advertising permit procedures of the California State Department of Transportation (CalTrans); Sign Relocation Agreement Page 2 of 3 0 0 5 ~ 5 ~ 15. The parties intend that this Agreement facilitate the relocation and consolidation of the Existing Sign Structures as permitted by California Business and Professions Code Section 5443.5, and/or any applicable rules, regulations and ordinances of the CITY, and will permit the issuance by CalTrans of all required State of California permits and approvals necessary to permit the construction and operation of the New Eller Faces as replacement structures pursuant to such laws and ordinances. To the extent required, CITY shall cooperate with ELLER in facilitating the issuance of all approvals and permits to be issued by other jurlsdlctions which are necessary for the construction and relocation of the New Eller Faces, including amending of this Agreement as necessary to permit compliance with California Business and Professions Code Section 5443.5; 16. This Agreement shall be binding on any and all successors and assigns of the parties and shall be governed by the laws of the State of California. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first mentioned above by their duly authorized representatives. ELLER MEDIA COMPANY, a Delaware corporation CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Its: MYERS PENINSULA COMPANY, a Delaware Limited Liability company By: MYERS TERRABAY COMPANY L.L.C By: Michael A. Wilson, City Manager APPROVED AS TO FORM: By: Jack Myers, Manager and Sole Member By: Steven T. Mattas, City Attorney ATTEST: By: Sylvia Payne, City Clerk J :\WPD\Mnrsw\405\035XAG RE E~P HAS E3\ I _eller_city_myem_signreloeation_Oct4_final_.doe Sign Relocation Agreement Page 3 of 3 000060 Exhibit "G" Restated and A mended DeVelopment Agreement For Remaining Parcels of Phase II and Phase III: Subdivision Improvement Agreement Form AGREEMENT Subdivision Improvements This AGREEMENT dated ,20 is by and between the City of South San Francisco, a municipal corporation, hereinafter designated "City," and , a corporation, hereinafter designated "Subdivider." WITNESSETH: WHEREAS, Subdivider has presented to City for approval final Subdivision maps, hereinafter designated "maps," entitled ; and WHEREAS, Subdivider has requested approval of the maps prior to the construction and completion of improvements, includ'mg all streets, highways and public ways and public utility facilities which are a part of, or appurtenant to, the Subdivision designated in the maps, all in accordance with, and as required by, the plans and specifications for all or any of the improvements in, appurtenant to, or outside the limits of Subdivision, which plans and specifications are described in Exhibit "A" attached and incorporated herein, hereinafter "plans" and are now on file in the Office of the City Engineer of the City; and WHEREAS, the City Council of the City of South San Francisco on adopted Resolution No. approving the maps and accepting the dedications therein offered for street and highway purposes and public facility and utility easements, except for those dedicated to other agencies, persons, partnerships, associations or corporations, on the condition that .. Subdivider first enter into and execute this Agreement with City and meet the requirements of the Resolution; and WHEREAS, this Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Title 19 of the South San Francisco Municipal Code; and NOW, THEREFORE, for and in consideration of the approval of the maps and of the acceptance of the dedications and easements for street and highway purposes and public facility and utility easements therein offered, excepting those dedicated to other agencies, and in order to ensure satisfactory performance by Subdivider and Subdivider's obligations under the Subdivision Map Act and Title 19 of the Municipal Code the parties agree as follows: I. Performance of Work Subdivider shall, at its own expenses, furnish or cause to be furnished, all labor supplies, equipment and materials, and do or cause to be done, in a good and workmanlike manner ,.,u62 all of the improvements within and/or without and subdivision work described in Exhibit AA attached and incorporated. The cost of such improvements and required items of work is estimated to be ($ ) Dollars. Subdivider shall also do all the work and furnish all materials necessary in the opinion .of the City Engineer to complete the improvements in accordance with the plans and specifications on file, or with any changes required or ordered by the City Engineer. 2. Places and Grades to be Fixed by City Engineer All of the work is to be done at the places, with the materials, in the manner and at the grades, as shown on the plans and specifications previously approved by the City Engineer and now on file in his office. All work shall be done to the satisfaction of the City Engineer. 3. Time for Commencement and Performance City hereby fixes the time for the commencement of the work to be done on or before , and for its completion to be within thereafter. At least fifteen (15) calendar days prior to the commencement of work hereunder, Subdivider shall notify the City Engineer in writing of the date fixed for commencement thereof, so that the City Engineer shall be able to provide inspection services. 4. Time of Essence - Extension Time is of the essence of this Agreement, provided that in the event good cause is shown, the City Engineer may extend the time for completion of the improvements hereunder. Any such extension may be granted without notice to Subdivider's sureties, and extensions so granted without notice to the Subdivider's sureties shall not relieve the sureties' liability on the bonds to secure the faithful performance of this Agreement and to assure payment of all persons performing labor and materials in connection with this Agreement. The City Engineer shall be the sole and. final judge as to whether or not good cause has been shown to entitle Subdivider to an extension. 5. Repairs and Replacements Subdivider shall replace or have replaced, or repair or have repaired, all pipes and monuments which are destroyed or damaged, and Subdivider shall replace or have replaced, repair or have repaired, or pay to the owner the entire cost of replacement or repairs, of any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, by the State of California, or any agency or political subdivision thereof, or by any combination of such owners. Any such repair or replacement shall be to the satisfaction, and subject to the approval of the City Engineer or the corporation, person or agency. 6. Utility Deposits - Statement Subdivider shall file with the City Clerk, on or before a written statement signed by Subdivider, and each public utility corporation involved, to the effect that Subdivider has made all deposits legally required by such public utility corporation for the connection of any and all public utilities to be supplied by such public utility corporation within the subdivision. 7. Permits, Compliance with Law Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of such improvements, give all necessary notices and pay all fees and taxes required by law. 8. Superintendence by Subdivider Subdivider shall give personal superintendence to the work on the improvements, or have a construction contractor, competent foreman or superintendent, satisfactory to the City Engineer, on the work site at all times during construction, with authority to act for Subdivider. 9. Inspection by City Subdivider shall at all times maintain proper facilities, and provide safe access for inspection by City, to all parts of the work and to the shops wherein the work is in preparation. 10. Contract Security (a) Concurrently with the execution hereof, Subdivider shall furnish: (1) a surety bond in an mount equal to at least one hundred pement (100%) of the estimated cost of the construction and completion of the works and improvements described in Exhibit "A," as security for the faithful performance of this Agreement; and (2) a separate surety bond in an mount equal to at least one hundred percent (100%) of the estimated cost of the construction and completion of the work and improvements described in Exhibit AA" as security for the payment of all persons performing labor and providing materials in connection with this Agreement. Subdivider shall require all subcontractors to file a labor and materials corporate surety bond as security for payment of all persons furnishing labor and materials in connection with this Agreement Co) The Subdivider may fulfill the requirements of subsection (a) of this section by providing a Standby Irrevocable Letter of Credit in favor of the City and in a form approved by the City Attorney. (c) Subdivider may also file a cash deposit with the City. 00506.4 11. Hold Harmless Agreement (a) Subdivider shall hold harmless, indemnify and, at the City's request, defend City, its officers, employees, agents, boards and commissions, whether elected or appointed, from and against all claims, demands, actions, causes of action, losses, damages, liabilities, costs and expenses, including but not limited to reasonable attorney's fees or obligations, for or in connection with personal injury (including, but not limited to, death) or damage to property (both real and personal) which arises out of or is in any way connected with the negligent act, error or omission of Subdivider, its agents, contractors, subcontractors, or employees in connection with the performance of this Agreement. (b) In order to make certain that Subdivider has adequate resources to fully carry out its responsibilities pursuant to subparagraph (a) above, Subdivider shall file with the City proof that Subdivider's professional consultants (including any soils engineer or civil engineer) employed by Subdivider in connection with the work described herein, maintain professional liability (e.g. errors and omissions) insurance during the life of this Agreement. If the work is accomplished by contractors or subcontractors, Subdivider shall assure that the contractors and/or subcontractors carry such insurance. The insurance shall be in an mount of not less than Two Million Five Hundred Thousand Dollars ($2,500,000), shall contain a provision that such insurance shall not be reduced or canceled except upon thirty (30) days written notice to City and shall be subject t the approval of the City Attorney-as to form, amount and carrier. (c) The foregoing hold harmless statement of Subdivider shall apply to all damages and claims for damages of every kind suffered or alleged to have been suffered by reason of the construction operations undertaken pursuant to this Agreement, regardless of whether or not City has approved the plans or specifications for the improvements, and regardless of whether or not such insurance policies have been determined to be applicable to any such damages or claims for damages. 12. Subdivider's Insurance Subdivider shall not commence work under this Agreement until Subdivider shall have obtained all insurance required under this paragraph, and such insurance has been approved by the City Attorney as to form, amount and carrier, nor shall Subdivider allow any contractor or subcontractor to commence work until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved. All requirements shall appear either in the body of the insurance policy or in endorsements and shall specifically bind the insurance carder. Subcontractor shall take out and maintain during the life of this Agreement the following policies of insurance: (a) Worker's Compensation and Employers' Liability Insurance in the statutory coverage. In signing this Agreement, Subdivider makes the following certification: "I am aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I will comply with such provisions before commencing the performance of the work of this Agreement." (b) Commercial General Liability Insurance: In an amount not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) for injuries including, but not limited to, death to any one person and subject to the same limit for each person, in an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit per occun'ence for bodily injury, personal injury and property damage. (c) Automobile Liability (Code 1) Insurance: In an amount not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) combined single limit per accident for bodily injury and property damage. (d) Contractual Liability Insurance: Subdivider shall take out and maintain during the life of this Agreement an insurance policy in the amount of at least ONE MILLION DOLLARS ($1,000,000), insuring Subdivider against damages sustained by reason for any action or actions at law or in equity, and/or any claims or demands by reason of any breach or alleged breach of any contract, or provisions thereof, or by reason of any contractual liability, or alleged contractual liability arising out of any contract entered into by Subdivider and/or any of its agents or employees in order to perform the work defined herein. (e) It is agreed that the insurance required by Subsections (b), (c) and (d) shall be in an aggregate amount of not less than Two Million Five Hundred Thousand Dollars ($2,500,000) and shall be extended to include as additional insureds the City of South San Francisco, its elective and appointive boards, officers, agents, employees and volunteers, with respect to operations performed by the Subdivider as described herein. Evidence of the insurance described above shall be provided to City upon execution of this Agreement and shall be subject to approval by the City Attorney as to form, amount and carrier. The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced or canceled except upon thirty (30) days written notice to City. In addition, the following endorsement shall be made on the policy of insurance: "Notwithstanding any other provisions in this policy, the insurance afforded hereunder to the City of South San Francisco shall be primary as to any other insurance or reinsurance covering or available to the City of South San Francisco, and such other insurance or reinsurance shall not be required to contribute to any liability or loss until and unless the approximate limit of liability afforded hereunder is exhausted." 13. Evidence of Insurance Subdivider shall furnish City concurrently with the execution hereof, satisfactory evidence of the insurance required and evidence that each carrier is required to give City at least thirty (30) days' prior notice of the cancellation or reduction in coverage of any policy during the effective period of this Agreement. 14. Title to Improvements Title to, and ownership of, all improvements constructed hereunder by Subdivider shall vest absolutely in City, or to such other public a~encies, persons, partnerships, associations or corporations to which dedications of easements were made or reserved upon the completion and acceptance of such improvements by City or the agency, person, partnership, association or corporation. 15. Repair or Reconstruction of Defective Work If, within a period of one year after final acceptance of the work performed under this Agreement, any structure or part of any structure furnished and/or installed or constructed, or caused to be installed or constructed by Subdivider, or any of the work done under this Agreement, fails to fulfill any of the requirements of this Agreement or the specifications referred to herein, or proves to be defective or become damaged because of differential settlement, action of the elements, or ordinary usage, except for catastrophic events, Subdivider shall without delay and without any cost to City repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work, and Subdivider shall pay to City the actual cost of such repair plus fifteen (15%) percent. Subdivider shall at the time of acceptance of the improvements by City or other public agency with City a corporate surety bond in the principal sum of ($ ) dollars to secure the undertaking and obligations set forth in this provision. 16. Subdivider not Agent of City Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this Agreement. 17. Cost of Engineering and Insl~ection Subdivider shall pay City the actual cost to City for all inspection and other services furnished by City in connection with the construction of the above-required improvements, plus twenty-two percent thereof for administrative overhead. City shall furnish periodic statements of all charges for services performed by City, and Subdivider shall complete payment of such charges within ten (10) days after receipt thereof. 18. Notice of Breach and Default If Subdivider refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of the work within such time, or if the Subdivider should be adjudged a bankrupt, or Subdivider should make a general assignment for the benefit of Subdivider's creditors, or if a receiver should be appointed in the event of Subdivider's insolvency, or if Subdivider or any of Subdivider's contractors, subcontractors, agents or employees should violate any of the provisions of the Agreement, the City Engineer or City Manager may serve written notice upon Subdivider and Subdivider's sureties of breach of this Agreement, or of any portion thereof, and default of Subdivider. 19. Breach of Agreement; Performance by Sureties or City In the event of such notice, Subdivider's sureties shall have the duty to take over the work and complete the work and the improvement herein specified; provided, however, hat if the sureties, within five (5) days after the serving upon it of such notice of breach, does not give City written notice of its intention to take over the performance of the Agreement, and does not commence performance thereof within five (5) days after notice to the City of such election, City may take over the work and prosecute the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of Subdivider, and Subdivider's sureties shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Subdivider as may be on site of the work and necessary therefor. 20. Erosion Control If applicable, Subdivider shall furnish landscape plans and adequately provide for erosion control. Landscaping and irrigation improvements shall be installed to the satisfaction of the City's Landscape Architect. 21. Trenching and Backfilling Subdivider shall require that all trenching and backfilling within and outside the property lines for utility lines, including sanitary, storm, water and any other purposes, shall be done under the inspection of a soils engineer who shall test the trenching and backfilling with a sufficient number of soil tests to secure the proper compaction. Subdivider shall further require that a certificate be filed with the City stating that said trenching and backfilling has been performed in accordance with the soils engineer's recommendations. 22. Water Lines Subdivider shall dedicate to the California Water Service Company the easements required for the water lines, facilities and appurtenant works, unless the lines, facilities and appurtenant works are to be installed within fights-of-way dedicated to the City. Subdivider shall construct and install, at its cost and expense, the improvements in the easements as set forth on the "Plans" shown in Exhibit "A," subject to the approval of the Company or District. 23. Notices All notices herein required shall be in writing, and delivered in person or sent by certified mail, postage prepaid. Notices required to be given to City shall be addressed as follows: City Clerk City of South San Francisco P.O. Box 711 South San Francisco, CA 94083 Notices required to be given to Subdivider shall be addressed as follows: Notices required to be given to sureties of Subdivider shall be addressed as follows: Any party may Change such address by notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. 24. As-Built Drawings Subdivider shall furnish City reproducible plastic film as-built drawings of the public improvements of a quality acceptable to the City Engineer together with a certification by Subdivider' s engineer that the improvements have been constructed in accordance with the approved plans and specifications. Subdivider shall furnish City with the as-built drawings concurrently with Subdivider's request for acceptance of the improvements by the City. 00006,9 25. Parties Obligated Subdivider agrees that this Agreement shall bind successors in interest, heirs and assigns. Subdivider and Subdivider's IN WITNESS WHEREOF, the parties have caused this Agreement to be executed. CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: City Manager DEVELOPER: By: ATTEST: By: City Clerk APPROVED AS TO FORM: City Attorney J :\WPDXMnrsw\405\001 \FORM S~SUBDIVtD_improvement_agreement.doc O0 c"~'7 0~ Exhibit "H" Restated and ,4 mended Development Agreement For Remaining Parcels of Phase II and Phase III: Owner Obligations Exhibit "W' Restated and Amended Development Agreement For Remaining Parcels Of Phase II And Phase III: Owner Obligations In consideration of the entitlements conferred upon Owner, Owner has agreed to provide certain public facilities and improvements. In order to maintain consistency with the General Plan and Owner's Specific Plan, and to clarify the obligations set forth in the Specific Plan, the Parties agree to implement those obligations according to the terms and conditions set forth below. A. Off-Site Below Market Rate (BMR) Housin~ Units (the "BMR units"): In accordance with the Final Terrabay Specific Plan, Owner shall provide at Owner's sole cost and expense, thirty-two (32) rental or owner occupied housing units within the City of South San Francisco at below market rate. Said units shall be provided in accordance with the following: 1. The BMR units provided pursuant to this Agreement shall be affordable to families of moderate income. Eligibility for each BMR Unit shall be determined according to the State of California, Business, Transportation and Housing Agency-Department of Housing and Community Development: Division of Housing Policy departments' income limits for San Mateo County for each year in which each BMR Unit is placed on the market. Owner shall be required to undertake all actions necessary to provide the BMR Units, including, without limitation, acquiring a site (or sites) on which to construct or rehabilitate the BMR Units. Owner shall comply with the following schedule for acquisition and construction of the BMR units: (a) Owner shall have contracted for the acquisition of a site or sites suitable for construction of the BMR Units prior to receiving a Certificate of Occupancy for the office building within the Commercial Component of the Project. (b) Owner shall close escrow, if escrow is required, on the above sites within 30 days of obtaining a Certificate of Occupancy for the office building; (c) Owner shall submit all plans for the construction or rehabilitation of the above units within 60 days of the close of escrow; (d) Owner shall apply for building permits for the BMR units within 30 days of City approval of said plans; Restated and Amended Development Agreement Terrabay Remaining Parcels of Phase II and Phase III Exhibit H - Final as of Nov. 29, 2000 Rev. 1.3.2 Page 1 of 7 (e) Owner shall complete construction of the BMR units, or complete rehabilitation of the BMR units, whichever is required, sufficient to receive a Certificate of Occupancy for the units, within twelve (12) months of receiving building permits for said construction or rehabilitation. 4. The BMR Units may be parked at one space per BMR Unit, provided that the sites of the BMR Units are located within close proximity to public transportation. In the event Owner chooses to sell the BMR Units, the units shall be subject to a resale restriction limiting resale of the BMR Units to families of moderate income (as determined in A.2 above). Owner may implement the resale restriction through covenants, conditions and restrictions CCC&R's") covering all of the BMR Units or through use of individual deed restrictions. All CC&R's and deed restrictions shall be subject to review and approval as to form by the City Attorney prior to issuance of building permits for the BMR Units. B. Remaining Prol~osed Residential Units: Owner proposes to construct the Condominium Component and related parking facilities in accordance with the provisions of the Final Terrabay Specific Plan. The Parties have agreed to cooperate in good faith in order to complete construction of the Condominium Component in a timely manner to facilitate acquisition of the units by employees of the Commercial Component office building. Pursuant to the foregoing, Owner agrees to undertake good faith efforts to construct the Condominium Component at or before the same time Owner receives the Certificate of Occupancy for the office building within the Commercial Component. Construction of the Condominium shall occur pursuant to the terms set forth below: 1. Owner shall endeavor to commence construction of the Condominium Component prior to receipt of a Certificate of Occupancy for the Commercial Component. If Owner does not obtain a building and/or foundation permit for the condominium building and complete pouring of the foundation within the time set forth in 1. immediately above, Owner shall pay the City five million dollars ($5,000,000) for potential use by the City to provide affordable housing within the City of South San Francisco. For purposes of this section, Owner shall pay the five million dollars immediately upon receiving a Certificate of Occupancy for the Commercial Component. If Owner makes the payment required in 2. immediately above, City will deposit and retain the five million dollars ($5,000,000) in an interest bearing account in City's name. If Owner commences construction of the Condominium Component within sixteen (16) months after the Certificate of Occupancy for the Commercial Component is issued, City will return to Owner the five million dollars ($5,000,000) held in the account referenced in 3. immediately above with all accrued interest. If Owner fails Restated and Amended Development Agreement Terrabay Remaining Parcels of Phase II and Phase III Exhibit H - Final as of Nov. 29, 2000 Rev. 1.3.2 Page 2 of 7 to commence construction at such time, then the City shall be entitled to keep such five million dollars ($5,000,000), plus any interest accrued thereon. o If Owner fails to commence construction of the Condominium Component before the expiration of this Restated Agreement, Owner must dedicate to the City that portion of the Property on which the Condominium Component was to be constructed and must re-vegetate such portion of the Property such that it is in the same condition as it was on the effective date of this Restated Agreement. C. Marketin~t Plan: Pursuant to the Final Terrabay Specific Plan and Transportation Demand Management Program ("TDM Program") contained therein, the Parties agree that the residential units on the Property shall be marketed such that the units are targeted for occupancy by employees of the commercial building, employees of businesses located within the East of 101 Plan Area and employees of businesses and governmental entities located with the City of South San Francisco. Subject to compliance with all applicable federal, state and local fair housing laws, Owner will market the units comprising the Residential Component, the Condominium Component and the BMR Units in a manner consistent with a comprehensive marketing plan. The Marketing Plan ("MP") shall be submitted at the time of Precise Plan review and shall contain the requirements, if any, of the City deemed necessary to effectively market the residential units to the target groups in accordance with the Final Terrabay Specific Plan and the TDM Program. The target group is defined as: (a) Employees of the tenant/tenants of the Commercial Component, if any; and, (b) Employees of businesses located east of the "101 Plan Area"; and, (c) Employees of businesses and government entities located within the City of South San Francisco, including school district and City employees. 2. Owner has agreed that the MP shall include, at a minimum, the following components: (a) A comprehensive strategy for targeting the identified groups; (b) A strategy for market component pricing, to the extent feasible, such that the units are affordable to employees of the commercial tenant; (c) A right of first offer for the target groups and a discreet period of time during which the offer must remain open; (d) Commencement of marketing at a time sufficient to ensure the target group has had an opportunity to review the offer and receive approval for financing. Restated and Amended Development Agreement Terrabay Remaining Parcels of Phase II and Phase III Exhibit H - Final as of Nov. 29, 2000 Rev. 1.3.2 Page 3 of 7 3. The final marketing plan will be submitted to the City at the time of Precise Plan review and shall be subject to review and approval by the City. o Once marketing of the Residential Component and of the Condominium Component begins, Owner shall be required to submit to City a monthly report of its activities under the MP and demonstrate conformance with the requirements of the MP. On-Site Child Care Facility: To assist in reducing the amount of vehicular traffic in the Commercial Component and in an effort to contribute to the supply of child care facilities within the City, Owner agrees to provide sufficient space within the office building in the Commercial Component to accommodate a 100 child child-care facility. Said facility shall conform in all respects with Federal, State and Local laws and regulations governing such facilities, including but not limited to, minimum staffing requirements, minimum space requirements, and minimum recreational opportunities. 1. Owner shall be responsible for selecting and contracting with a provider to operate and manage the facility. Owner shall ensure that the provider selected is able to provide care at times sufficient to accommodate actual demand from the users of the Commercial Component. The child-care facility must be licensed and open for business upon the initial occupancy of the Commercial Component and shall remain open for business so long as a tenant occupies the commercial building. E. Performine Arts Center: Owner has agreed to build a Performing Arts Center ("Center") located within the Commercial Component. The Center shall be constructed consistent with the requirements identified in the Final Terrabay Specific Plan and in accordance with City approved plans and specifications. Owner shall allow use of the facility as follows: 1. The Center shall be available for the exclusive use of South San Francisco groups defined as: (a) South San Francisco performing arts groups for both performances and rehearsals; (b) South San Francisco based non-profit organizations or otherwise public spirited groups whose purposes are the enhancement or support of the performing artS; and, (c) The City for activities related to enhancing support for performing arts within the City. (d) Performances of other groups that contract to perform in the City at the City's request. Restated and Amended Development Agreement Terrabay Remaining Parcels of Phase II and Phase III Exhibit H - Final as of Nov. 29, 2000 Rev. 1.3.2 Page 4 of 7 Access to the office building within the Commercial Component shall be such that no access will be available from the Center to the interior of such office building after business hours unless otherwise permitted by Owner. City shall not be required to pay Owner for the use of the Center as provided in (1) above for a period of ninety-nine (99) years, but may be required to reimburse Owner for certain expenses as identified in the written operating agreement to be entered into by and between the Parties at or before the time of Precise Plan review ("Operating Agreement"). The Operating Agreement shall address, at a minimum, hours of operation, maintenance obligations of the parties, allocation of monthly utility expenses and other terms as needed. Hours of Operation shall be such that the facility is available to the commercial tenant as a meeting facility during normal business hours and may be modified to accommodate the needs of the City or commercial tenant as circumstances require. Fe Identity and Art Prooram: In accordance with the Final Terrabay Specific Plan, City and Owner have committed to implement an Art Program for the Project, in addition to interior lobby art. The Parties will cooperate to ensure the Identity and Art Program is consistent with the Final Terrabay Specific Plan and provides an aesthetic enhancement to the architectural design of the Project. Specific drawings and details of the art will be provided at the time of Precise Plan review for the Commercial Component; however, the Parties agree that the Art Program will contain, at a minimum, the following: A monument sign to mark the main entry to the office complex that will feature a graphic design that enhances the identity of the development; 2. Planting and landscaping of the median at the main entry of the office complex; 3. An artistic sculpture or similar structure at or near the point of San Bruno Mountain that will be visible from Sister Cities and Bayshore Boulevard. G. Transoortation Demand ManaGement Program ("TDM Pro~ram"): Owner shall implement, monitor and enforce the TDM Program identified in the Final Terrabay Specific Plan. The TDM Program requires, at a minimum, the fo]lowing: Daily PM peak two-way trip generation from the Commercial Component shall not exceed 565 trips; and, Owner shall pay the City $15,000 per year, adjusted for inflation, commencing in the year in which the first tenant of the Commercial Component takes occupancy, to reimburse the City's costs in monitoring the effectiveness of the TDM Program, which sum shall be payable within thirty (30) days after the commencement thereof and each anniversary thereafter; and, Restated and Amended Development Agreement Terrabay Remaining Parcels of Phase II and Phase III Exhibit H - Final as of Nov. 29, 2000 Rev. 1.3.2 Page 5 of 7 3. Monitoring shall occur annually throughout the life of the Project; and, If the results of the annual monitoring report indicate that the required trip reduction has not been met, the Owner shall be issued a. warning by the City for the first year of non-compliance. Monitoring of the program's effectiveness shall occur the subsequent year and each year thereafter. If the required trip reduction remains unmet, the Owner shall be fined $15,000 for each percentage point that the trips have not been reduced. The TDM Program shall be revised again and monitored again the following year. In the event results continue to fall short of the TDM Program objectives, the same fine shall apply. Owner shall be entitled to evaluate any and all of the reports of the effectiveness of the TDM program, and, in addition to any other available remedies, shall have the right to raise any objections to the findings in such reports to the City Council prior to the imposition of any fine; and, o Owner shall be liable for all costs incurred by the City in collecting the fines assessed and found to be owed. Said costs shall include the costs of litigation and all reasonable attorneys fees associated with collection of the fine. H. Restoration of Land: Owner shall fund and implement a land restoration program for the Recreation Parcel (formerly Commons West Parcel) and the Preservation Parcel. The land restoration program requires the following: Subject to compliance with the terms of the Settlement Agreement executed by the City, San Bruno Mountain Watch, The Center for Biological Diversity, and Myers Development Company, the program shall be modeled after the restoration efforts conducted in Juncus Ravine and shall include the removal of invasive exotic plant materials (such as fennel, ivy, pampas grass); and, The program shall be considered complete when the plant material is eliminated from the parcels; and, o The program shall be reviewed and approved by the City and the San Bruno Mountain Plan Administrator. Recreation Facilities: Owner intends to secure an organization to operate a recreational facility on that parcel formerly known as "Commons West." In the event Owner is unable to secure an organization acceptable to the City to operate said facility, Owner shall dedicate the Commons property to the City or, at the sole discretion of the City, to the San Mateo County Department of Parks and Recreation for inclusion in the San Bruno Mountain park. Owner shall have two years from the date City Council approves the Final Terrabay Specific Plan to secure said organization or effect the dedication. J. Other Terms and Conditions: The Parties shall negotiate in good faith to identify and memorialize, by separate agreement(s), specific implementation details of the above referenced obligations. Said agreements shall be submitted during Precise Plan review and Restated and Amended Development Agreement Terrabay Remaining Parcels of Phase II and Phase III Page 6 of 7 Exhibit H - Final as of Nov. 29, 2000 Rev. 1.3.2 subject to the terms and conditions contained therein. Said details shall be consistent with the obligations identified above. City agrees to cooperate with Owner to review and process all submittals from Owner relating to the Project contemplated in the Final Terrabay Specific Plan by timely reviewing and processing such submittals in accordance with all applicable laws and regulations governing the City's processing of such submittals. J:\WPD~Vlnrsw\405\035~AGREEXPHASE3\ 1 _tbay_exhibitH_Nov29_final.doc Restated and Amended Development Agreement Terrabay Remaining Parcels of Phase II and Phase III Exhibit H - Final as of Nov. 29, 2000 Rev. 1.3.2 Page 7 of 7 Exhibit "I" Restated and ~4mended Development/lff, reement For Remaininff, Parcels of Phase I1 and Phase III: Improvement Responsibilities (To Be Determined and Approved at Precise Plan review) 000079 Exhibit "J" Restated and Amended Development Agreement For Remaining Parcels of Phase II and Phase III: YMCA Letter 405/03 5/agree/titles 415 ??? 33~1 IgYE~$ DEVELOPI[ENT ~_0. ~)002 MYERS DEVELOPMENT COMPANY October 24, 2000 Ms. Lt~ Ckri~den THE PE1VI1NSULA YMCA Brsnch of thc ~ICA of San Prancisco 1877 South Or~t Strut San Maieo, Califomin 94402 Re: YMCA And The ~Ferr~bay Development Dcsr Lisa: Dining the past six months, My~s Development Company ('IVlDC") and thc Peninsula YMCA hav~ disc~sed th~ pote~tiil o£jolntJy dcvcioping a 100-child day cm'e facih'ty and neighborhood YMCA facility on prop~'ties tl~t wc currently own in tl~ City of South ~an Fra.nci~co (the '~l'errab~y Prop~9. For fha purpos~ of furth .ming our discussions, ~e have jointly agrt~ to pursue on a s~ctly non-binding basis, the £ollowing: ~ Within our proposed 660,000 (3S1~ office project on the eamem slol:m of San Bruno Mountain, we have proposed to cze~e a 9,000 GSF m-es al grade level in addition to an adjace, m outdoor, open space to complerneat the indoor area, Together, these facillgea are sufficicut in program a.-ea for a lO0-chtld d~y taro f~-illty. MDC wiU be rc~pons~le for builclin~ the cor~ and shell space and will provide ad~ utilities (wa=r, power, sanitsry sewer, ~as, fire sprinkle, r, I-WAC, and telephone) stubb~cl to the outside p~hnetcr will(s) of thc nrea and reaidy to bc 'conncctcd with thc YMCA's interred MDC will l~ase thc ~-pacc to thc YMCA for onc dollar per y~ar for a term adequate to amortiz~ thc YMCA's improvements and such longer term ns the YMCA and MDC may siree upon. the same financial arrangemenL Thc YMCA will, however, be responsiblc for payins for its allocablc ~mre of Common Area Mai~iemmc~ on a monthly basis, Second Smut, Su;~ .~'~ - San Fmr~ist~, www. myerutevelo proem.corn 15:14 FA~ 414 777 00al ....... ,-.----- Ms. Lisa Christian TH~ 'PI:-~HI~Sl-J~ YIVICA Octol:~r 24, 2000 ?~c 2 MDC and t. be Peninsula YMCA, following regulatory approval by the City Of South San Francisco, will ~nter into discussions in connection to the development ora neighborhood YMCA facility on MDC's property known as the "Commons West" parcel MDC solmowledges that lhe YMCA will need to conduct cxlr. z~v¢ demographic and market stud/es in orcter to determine fcas~ility and potential financing for design and construction of the proposed new facility. In view of this, both thc YMCA and MDC sckuew.ledge ~-t the City of South San Franciscq has allowed two years from thc approval of the Final Specific PI~ for those discussiona to mature or the property may be disposed of in another manner. In the event that thc discussions, as ouilin~ in number. (4.) above, result in the creation o£a n~v YMCA facility, IvlDC will dcrxi thc fee simple tit. lc of the property, free and clear of any mortgages, liens or cucumbrauces 1o thc YMCA. Both MDC and thc YMCA acknowlecli/c thai this 1attar is non-binding and is intended for discussion purposes only. Thc farms do, however, r~prcs~nt the gcnu/ne intent and spirit .__oft~th_parties as represented by the signatures below. 8inc~rdy, MYERS DEVELOPMElqT COMPA~q~ Chairraan & Chief Executive O~ccr MST/rg Board of Directors 000082