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HomeMy WebLinkAboutReso 85-1983that: RESOLUTION NO. 85-83 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING EXECUTION OF AN INTERIM AGREEMENT OYSTER POINT OVERCROSSING AND INTERCHANGE MODI- FICATION FUNDING BE IT RESOLVED by the City Council of the City of South San Francisco 1. Execution of Agreement. Execution of an Agreement entitled "Interim Agreement Oyster Point Overcrossing and Interchange Modification Project Funding" between the City of South San Francisco and Richard Diodati is hereby authorized, and a copy of said Agreement is attached hereto as Exhibit "A." 2. Signature. The Mayor is authorized to execute said Agreement on behalf of the City, and the City Clerk attest his signature thereto. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at an ~,!'~l adj. regular meeting held on the 27th day of July , 1983, by the following vote: AYES: Councilmembers Ronald G. Acosta, Mark N. Addiego; and Roberta Cerri Teglia NOES: None ABSENT: Councilmembers Emanuele N. Dmmonte and Gus Nicolopulos City Clerk ~.A~I~Ii i "~4" TO RESOLUTION :'NO., 86-83, RESOLUTION NOi.. 85-83 . ~ ! INTERIM AGREEMENT · OYSTER POINT OVERCROSSING AND INTERCHANGE . . , MODIFICATION PROJECT FUNDING THIS AGREEMENT is made and entered into as of the ~-Sth day of _ July ., 1983, between the CITY OF SOUTH SAN FRANCICO (hereinafter "City") and RICHARD DIODATI (hereinafter "Developer"), WHEREAS, the City has adopted a financing formula for the partial financing by certain benefited parties of the proposed Oyster Point Overcross : · and Interchange Modification Project (hereinafter the' "Project"'). The City intends to establish a fund into wh'ich the benefited parties will contribute · their pro rata share of the required funds for the Project {the "Overpass Funds"); _ . and : WHEREAS, the City ~as required that Developer provide assurance of . -- payment of the Developer's share of. the funds required for the Project as a condition of Developer developing the Oyster Point Business Park, more parti- cularly described as Parcels I through 4 as shown on the Parcel Map entitled "Oyster Point Business Park, being.a Subdivision of the lands conveyed to Diodati by deed dated 1-13-81 and recorded 1-15-81 Serial No' 4346AS and by deed dated ,. 1-14-81 and recorded 1-15-81 Serial No. 4347AS, San 14ateo County Records, South' San Francisco, California" dated July 1981 and reCorded in the office of the County Recorder of the County of San Mateo on April 12, 1983 in Volume 52, Pages 58 and' 59, Document No. 82029001 (hereinafter the "Business Park"); and WHEREAS, City and Developer are in the process of preparing a Definitive Funding Agreement (hereinafter "Definitive Agreement") relative to the arrange- ments to be made for Developer to contribute to tile Overpass Fund, when required, ~:, , the Developer's pro rata share of the funding required.for the Project; and WHEREAS, Developer desires to obtain the Building Permit for Building "F" of the Business Park and the Condominium Subdivision Map for Building "E" of the Business Park prior to completion and execution of the Definitive Agreement; and WHEREAS, pending the execution of the Definitive Agreement and the post- ing of the financial assurances to be required of Developer thereunder, City requires that certain arrangements for financial assurances be made to the City in respect of Developer's pro rata share prior to the issuance of such Building Permit and Subdivision Map as good faith deposit toward Developer's satisfaction of the conditions of the City's discretionary approvals of the Business.Park; and · WHEREAS, Developer is willing to provide a letter of credit in the amount of Three Hundred Thousand Dollars ($300'000.00) for the benefit of the City from First Interstate Bank and commitments for the issuance of subsequent annual letters of credit for Three Hundred Thousand Dollars ($300,000.00) up to an amount of One Million Two Hundred Thousand Dollars ($1,200,000.00) as such financial assurance until the Definitive Agreement is executed and the financial assurances required thereunder are provided. IT IS HEREBY AGREED THAT- 1. In consideration of the City allowing Developer to obtain the Build- ing Permit for Building "F" of the Business Park and obtaining the Final Sub- division Map for Building "E" of the Business Park, Developer agrees to provide to the City, concurrent with the execution of this Agreement, an irrevo- cable letter of credit from First Interstate Bank in the amount of Three Hundred Thousand Dollars ($300,000.00) assuring the payment by Developer of Developer's pro rata share to the Overpass Fund. Such letter of credit shall assure the payment of the Three Hundred Thousand Dollars ($300,000.00) at the time that the City requests such funds to be paid into 'the Overpass Fund for the project. 2. At the time of execution of this Agreement, Developer shall further provide to the City an unconditional written agreement from First Interstal~e Bank, which Agreement will provide that said bank will issue a letter of credit to the City on MaY 1, 1984 in the additional amount of Three Hundred Thousand Dollars ($300,000.00) further assuring payment by Developer of the Developer's pro rata share to the Overpass Fund. Said Additional letter of credit shall assure the payment of Three Hundred Thousand Dollars ($300,000.00) at the time that the City requests such funds to be paid into the overpass Fund', making an aggregate of Six Hundred. Thousand Dollars ($600,000.00) to that point in time. 2. Developer agrees, to provide to the City concurrent with the execu- tion of this Agreement, an agreement from said bank, that said bank will issue to the City a letter of credit on or before May 1, 1985 on the same terms and conditions as the letters of credit referenced in Paragraphs I and 2 above for an additional amount of Three Hundred Thousand Dollars ($300,000.00), making an aggregate of Nine Hundred Thousand Dollars ($900,000.00) to that point in time. Said agreement sha'll be subject to the provisions of Paragraph § hereof. 4. Furthermore, Developer will, concurrent with the execution of this · Agreement, provide the City with an Agreement from said bank that on May 1, 1986 said bank will provide to the City. an additional letter of credit in the amount of Three Hundred Thousand Dollars ($300,000.00) on the same terms and conditions as the letters of credit set forth in Paragraphs I and 2 such that by May 1, 1986, the letters of credit in the amount of One Million Two Hundred Thousand Dollars ($1,200,000.00) in the aggregate will be presented to the City by Developer. Said agreement shall be subject to the provisions of Paragrah 5 hereof. 5. Definil~ive 'Agreement 'l~o'b6'Reachea 't~y'january'l, '1984. (a) Notwithstanding the foregoing, the commitment of First Interstate Bank to provide letters of credit in the years 1985 and 1986 shall be conditioned upon the City and Developer executing a Definitive Agreement acceptable to said bank relative to the funding of the Oyster Point Overpass by January 1, 1984. If no such Definitive Agreement has been reached and executed by January 1, 1984, then the Developer. shall only be obligated to post and deliver to the City the following- (1) The letters of credit set forth in Paragraphs 1 and 2 Of this Agreement; and (2) An unconditional letter of credit in the amount of One Hundred Thousand Dollars ($100,000.00) on the same terms and conditions as the letters of credit set forth in Paragraphs i and 2 of this Agreement or cash in the amount of One Hundred Thousand Dollars ($100,000.00). (b) If no such Definitive Agreement is executed between Developer and City by January 1, 1984, then the-Developer shall not be entitled to receive any permits from the City relative to Buildings "D," "H" and "G" in the Business Park until such Agreement~has been executed by the City and Developer and-arrangements have been made thereunder for assuring payments of the Developer's share of the Overpass Fund obligation. (c) If Developer desires to begin work on Building "D" prior to January o 1, !984, Developer may apply for permits relative to said Building "D;" but as a cor. dition precedent to City's issuance of said permits or any of them, Developer shall provide City with an unconditional letter of credit or cash deposit in an amount calculated in accordance with the formula set forth in Exhibit "A" to Ordinance No. 923 of the City of South San Francisco as Developer's share of the Oyster Point Fund related to said Building "D." 6. The agreement of the parties hereto to assure the funding of the amounts set forth in this Agreement, being Three Hundred Thousand Dollars ($300,000.00) per year to a maximum of One Million Two Hundred Thousand Dollars ($1,200,000.00), shall not be construed to be an agreement by said parties that the amount of One Million Two Hundred Thousand DOllars ($1,200,000.00) is the actual share bY which the Developer is obligated under the funding arrangments for the Project. The parties reserve their rights relative to the amount of the funding and the nature of the funding which shall be established in the Definitive Agreement. The purpose of the Agreement is to provide the City with assurance of the availability of funds in the minimum amount of One Million Two Hundred Thousand Dollars ($1,200,000.00) as and towards such share of the fund to which the Developer may in the future be'obligated. The parties reserve their rights relative to resolution of the Project and the nature of contributions of other property owners within any such benefited area. 7. The terms of each of the letters of credit to be provided to the City under this Agreement shall provide that the City shall be entitled to. be paid under said letters of credit' the face amount thereof unless the Developer contri- butes when requested by the 'City the share of Developer to the Overpass Fund for the environmental studies, acquisition, design, engineering, development and construction of the Project, and provided that the City requests such funding on or before December 31, 1988. 8. Notices: All notices required or permitted to be given hereunder shall be in writing and deemed to be given and received when either personally delivered or forty-eight (48) hours after deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, and addressed as fol lows' To City: City Clerk P.O. Box 711 South San Francisco, CA 94083 To Developer- Richard Diodati 1461 San Mateo Avenue South San Francisco, CA 94080 Each party by notice as herein provided may change such address for purposes of subsequent notices hereunder. 9. Captions- The captions of articles, sections and paragraphs hereof are for convenience only and shall not affect the meaning of' t~his Agreement. lO. Capitalized Terms- All capitalized items herein which are defined terms shall have the meanings set forth in this Agreement. ll. Time: Time is of the essence of this Agreement and each provision _ . . - hereof. 12. Governing Law: This Agreement shall be governed by the laws of the St. ate of Cal i fornia. 13. Invalidity Or Illegality. If any provision (or portion of the provision) hereof is adjudicated illegal or unenforceable, the remaining provi- visions (or portions of such provisions) of this Agreement shall remain in full force and effect. · 14..Attorney's Fees- In the event of any litigation to construe, interpret or enforce this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to other such relief as the court may award. 15. Assignment: Developer may at any time or from time to time transfer its rights, title or interest in or to all or any portion of property. As a condition precendent 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 agreement relating to such transferred property shall be binding upon and inure to the benefits of said transferee. Upon such a transfer, Developer shall notify the City of the name' and address of the transferee. Upon completion of Developer's responsibilities pursuant to this section, Developer shall have no further obligations or benefits hereunder' with respect to such transferred property save for those the perform' ance of which was due prior to the transfer date. 16. Binding. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 17. Upon execution of ths Agreement, .Owner shall have it recorded in the office of the Recorder of the County of San Mateo. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the 25th day of July , 1983, in South San Francisco, County of San Mateo, California. ATTEST- OFFICIAL SEAL DONALD M GALBRAITH SAN UATEO COUN~ RICHARD D IODATI ~-~ - ~T~ DZODATZ . [ I '~' By: C II~Y (~F-SOU~H SAN FRANCISCO ' .,, a municipal corporation . · · . Mayor ~ ~ ~" ~~. 7 City Clerk