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HomeMy WebLinkAboutReso RDA 0-1997 RESOLUTION NO. 20-97 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO STATE OF CALIFORNIA A RESOLUTION APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF SOUTH SAN FRANCISCO AND BAY WEST COVE LLC RELATED TO PROPERTY LOCATED GENERALLY AT 159 OYSTER POINT BOULEVARD (APN NO. 015-010-160) WHEREAS,Bay West Cove desires to acquire property identifed as APN No. 015-010-160 from the Redevelopment Agency, following the Agency's acquisition of said property from th~ity of South San Francisco; and, WHEREAS, the purchase price of $3,200,000 is based the fair market value of the property as determined by an appraisal; and, WHEREAS, the Redevelopment Agency desires to sell the property to Bay West Cove LLC to facilitate redevelopment of the entire Bay West Cove site; and, WHEREAS, an Environmental Impact Report has been prepared in accord with the California Environmental Quality Act (CEQA), the State CEQA Guidelines and the City of South San Francisco Guidelines for the Implementation of CEQA; and, NOW, THEREFORE, BE IT RESOLVED THAT the Redevelopment Agency of the City of South San Francisco does hereby approve the Disposition and Development Agreement attached hereto as Exhibit A and further authorizes the Executive Director to execute the agreement. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of South San Francisco at a re §u l a r meeting held on the l 0th day of Donomhor , 1997 by the following vote: AYES: Boardmembers James L. Datzman, Joseph A. Fernekes, Karyl Matsumoto and Chairman Eugene R. Mullin NOES: None ABSTAIN: None ABSENT: Boardmember John R. Penna ATTEST: ~g~-.'~ ~~ Clerk J:\WPD\MNRSW\405\01 \RESO\DDARES. 125 Recording Requested By: City Clerk City of South San Francisco P.O. Box 711 South San Francisco, CA 94083 After recording please return to: City Clerk City of South San Francisco P.O. Box South San Francisco, CA 94083 EXHIBIT A RESOLUTION NO. 20-97 DISPOSITIONANDDEVELOPMENTAGREEMENT by and between THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO and BAY WEST COVE, L.L.C. THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") is made on or as of this ~ day of December, 1997, by and between the Redevelopment Agency of the City of South San Francisco (hereinafter "Agency") as seller and Bay West Cove L.L.C. (hereinafter "Developer") as buyer. WITNESSETH: 1. Pursuant to its authority granted under California law, the Redevelopment Agency has the responsibility to carry out the City of South San Francisco Shearwater Redevelopment Project, which was approved and adopted on January 8, 1986, by the City Council of the City of South San Francisco by Ordinance No. 996-86, as amended. Said redevelopment plan as described and as thereafter from time to time amended is referred to herein as "the Redevelopment Plan" and is incorporated into this Agreement by reference. 2. Developer is the owner of approximately 166 acres of real property more particularly described on Exhibit A attached hereto and incorporated herein by reference, (hereinafter referred to as "Developer's Property"). The City of South San Francisco is the fee owner of 6.02 acres of property more particularly described on Exhibit B attached hereto and incorporated by reference (hereinafter referred to as "City Property"). Within 60 days of execution of this DDA, the Agency shall, by separate instrument, acquire title to the City property from the City of South San Francisco. 3. In furtherance of the Redevelopment Plan, the Agency selected Developer to develop, on Developer's Property and City Property a project consisting of a mixed retail, automobile sales, and hotel or office development all together totaling between 617,948 sq. ft. and 1,033,250 sq. ft. depending on final configuration and composition of the development. To implement this Agreement, Participant or its successors shall cause to have constructed the following improvements, as identified on Figure 4 of the Bay West Cove Specific Plan, on the Property: 1) Planning Area 1- a twenty (20) acre site for operation of one vehicle sales fadlity devoted to the sale of new or late model previously owned or leased vehicles; 2) Planning Area 2 - a 19.2 acre retail site comprised of up to 244,372 sq. ft. of commercial retail or, in the alternative, up to 175,000 sq. ft. of commercial retail plus a hotel consisting of 184,258 sq. ft. and up to 225 rooms; 3) Planning Area 3 a 4.6 acre site for a hotel development consisting of 204,732 sq. ft. of hotel uses including between 150 and 250 rooms or, in the alternative, 61,420 sq. ft. of Disposition and Development Page 1 of 21 Agreement (Bay West Cove) December 5, 1997 commercial retail; (4) Planning Area 4 - an 8.5 acre site for either a hotel development consisting of two hotels with a total of between 350 and 450 rooms on a maximum of 370,260 sq. ft. or a maximum of 222,156 sq. ft. of commercial retail. Said real property, which is located in an area governed by the Shearwater Redevelopment Plan, is hereinafter referred to as the "Property." 4. The purposes of this DDA are to provide a mechanism whereby the Developer shall acquire, own, and develop the Developer and City Property in accordance with this Agreement, the Owner Participation Agreement and the provisions of the Shearwater Redevelopment Plan. The development of the Property contemplated by this Agreement is consistent with the Shearwater Redevelopment Plan and the City of South San Francisco General Plan. 5. The Agency has concluded that the Developer has the necessary expertise, sldll and ability to carry out the commitments herein contained and that this Agreement is in the best interests and will materially contribute to the Redevelopment Plan. NOW THEREFORE, the parties hereto agree as follows: PART ONE: PROJECT Article One: PROJECT APPROVAL 1.01 Approval of Specific Plan. Prior to the execution of this DDA, the Developer submitted to the Agency a Specific Plan for the development of the Property. By execution of this DDA and the Owner Participation Agreement ("OPA"), the Agency hereby approves the Specific Plan, including any modifications thereto made as part of the OPA and DDA. /// Disposition and Development Page 2 of 21 Agreement (Bay West Cove) December 5, 1997 Article Two: AGENCY PRE-DISPOSITION REQUIREMENTS 2.01 Conditions Precedent. Developer's obligation to purchase the City Property is contingent upon the conditions set forth below being waived or satisfied on or before the dates provided for below. Developer may terminate this Agreement by written notice to Agency if Developer determines that the conditions set forth in this Article Two, Part One have not been satisfied by the events set forth herein, or the date or extended date provided for herein for the satisfaction of such conditions. The conditions provided for in this Article Two shall be deemed satisfied by the date by which the particular condition is required to be satisfied, if the Developer does not provide notice to the Agency by the date provided herein that Developer has disapproved of such matter. 2.02 Soils and Hazardous Waste Investigation and Remediation. A Phase I and Phase II Environmental Assessment for subject property has been completed and determined that further remedial action is necessary. Agency shall complete all required soils and hazardous waste investigation, and mitigation, to obtain a letter of case closure from the Regional Water Quality Control Board (hereinafter "RWQCB"). Said remediation shall be completed prior to escrow closing on the City Property unless mutually agreed to otherwise between the Developer and City. In lieu of the Agency completing remediation and obtaining case closure from the RWQCB, the parties may agree to a process whereby Developer shall complete the remediation and obtain case closure approval from RWQCB, with the costs of such actions, in an amount not to exceed three hundred thirty five thousand ($335,000), to be deducted from the amount owed to the Agency for Developer's purchase of the City Property. 2.03 Conditions of Title. (a) As soon as reasonably possible following the date of this DDA, Agency shall deliver or cause to be delivered to Developer the following items: Disposition and Development Page 3 of 21 Agreement (Bay West Cove) December 5, 1997 (I) Title Report. A preliminary ALTA title report (the "Title Report") for the Property issued by Chicago Title Company (the "Title Company") showing how title to the Property will appear upon conveyance to Developer, assuming recordation of all documents in form tendered by Agency to Title Company in order to meet the title conditions provided in this Agreement; (ii) Underlying Title Documents. Complete and legible copies of all instruments referred to in the Title Report as conditions or exceptions to the title of the Property, as requested by Developer; and (b) Developer shall have thirty (30) days following the receipt of the documents, instruments and other items required to be delivered to Developer pursuant to this Section 2.03, including, but not limited to the last modification or addition to the Title Report, to review and comment on the exceptions and matters contained in or disclosed by the Title Report. Developer shall be entitled to condition its acquisition of the Property upon the release, discharge or removal of any exception prior to the close of escrow, and the deletion of such exception or exceptions from the Title Policy to be issued at close of escrow. (c) If Developer raises any objections to the title of the Property in accordance with the procedures of this Section 2.03, then Agency shall have ten (10) days after the receipt of Developer's objections to give Developer notice that either: (I) Agency shall remove any objectionable exceptions from title prior to close of escrow, and Agency shall promptly provide evidence satisfactory to Developer and to the Title Company of Agency's ability to so remove such exceptions; or (ii) Agency elects not to cause such exceptions to be removed. If Agency gives Developer notice under clause (ii), then Developer shall have ten (10) days to either waive such objections, in which event this Agreement shall continue in full force and effect, or terminate this Agreement by notice delivered to Agency within ten (10) days, failing which Developer shall be deemed to have waived such objections. (d) Within fourteen (14) days after Developer has approved the Title Report pursuant to this Section, or fourteen (14) days after Agency has given satisfactory evidence of its ability to remove objectionable exceptions, and in no event later than ten (10) days prior to close of escrow, escrow agent shall deliver or cause to Disposition and Development Page 4 of 21 Agreement (Bay West Cove) December 5, 1997 be delivered to Developer a title commitment (the "Title Commitment") for an ALTA Owner's extended coverage policy of title insurance, Form (the "Title Policf'), issued by the Title Company in the amount of the Purchase Price and showing the status of the title of the Property and all exceptions, as such title and exceptions will appear upon dose of escrow, including encumbrances, liens, adverse claims, easements, restrictions, rights-of-way, covenants, reservations and all other conditions, if any, affecting the Property which would appear in the Title Policy, and committing the Title Company to issue such a Title Policy to Developer upon satisfaction of expressed conditions. Developer shall have ten (10) days from receipt of the Title Commitment in which to approve such conditions. Article Three: DISPOSITION OF PROPERTY 3.01 Sale and Purchase. The Agency shall sell to Developer, and the Developer shall purchase from the Agency, the City Property pursuant to the terms, covenants, and conditions of this Agreement. 3.02 Purchase Price. The Purchase Price for the Property shall be: Three Million Two Hundred Thousand United States Dollars ($3,200,000). 3.03 Opening Escrow. To accomplish the purchase and transfer of the Property, the Parties shall upon execution of this Agreement establish an escrow (Escrow No. ) with Chicago Title Company, Market Street, San Francisco, CA ~ (hereinafter "Escrow Agent"). The Parties shall execute and deliver all written instructions to the Escrow Agent to accomplish the terms hereof, so long as such instructions are consistent with this Agreement. A. The Agency's Deliveries. The Agency shall deliver or cause to be delivered to Escrow Agent on or before the Closing Date, the following instrument and document: 1. A Grant Deed, acknowledged in recordable form, conveying · , Disposition and Development Page 5 of 21 Agreement (Bay West Cove) December 5, 1997 the "City Property" parcel to Buyer subject only to the approved Title Conditions. B. Developer's Deliveries. Developer shall deliver or cause to be delivered to Escrow Agent on or before the Closing Date the following instruments, documents, and things: 1. Payment of the Purchase Price. 2. Costs, Expenses and Prorations. The amount due the Agency, if any, after the costs, expenses, and prorations are computed in accordance with Section 3.06. 3.04 Close of Escrow. The above-mentioned escrow shall dose ("Closing Date") within sixty (60) days after certification of the Environmental Impact Report by Agency and after contingencies have been satisfied, provided that as of the Closing Date, there shall have been no material adverse change in the physical or title conditions of the Property from the conditions therefore approved by Developer; and that no moratorium, statute, order, regulation, ordinance, legislation, judgment, ruling, assessment or decree of any court or governmental agency shall have been enacted, adopted, issued, entered, or be pending that could materially and adversely affect the Property and/or Developer's ability to develop and operate its Improvements. 3.05 Condition of Title. Upon dose of escrow the Agency shall convey the Property to Developer, subject to the following: (I) the Redevelopment Plan, as such plan then exists or is thereafter from time to time amended; (ii) applicable building and zoning laws and regulations; (iii) the provisions of the Owner Participation Agreement and this DDA; (iv) any lien for taxes accruing subsequent to recordation of the Deed; '- Disposition and Development Page 6 of 21 Agreement (Bay West Cove) December 5, 1997 -- (v) assessments, conditions, covenants, restrictions or easements of record as otherwise approved by Developer in writing. 3.06 Costs of Escrow and Closing. Real property taxes, if any, shall be paid by Developer on a pro-rated basis. Assessments payable thereon and approved by Developer shall be paid by Developer. Developer shall bear the cost of CLTA title policy; and in the event Developer requests an ALTA title policy, Developer shall also bear the cost of a survey of the Property and issuance of the ALTA title policy. The escrow fees, conveyance and transfer taxes, to the extent necessary, and recording fees shall be borne equally by Agency and Developer. Article Four: CONSTRUCTION OF IMPROVEMENTS 4.01 Progress Reports Until construction of the Improvements has been completed, Developer and its successors authorizes the Agency to have full access to all building inspection reports and other information at the City of South San Francisco to assist the Agency in reviewing the actual progress of construction. Developer and its successors shall allow the Agency to review construction documents and records maintained by Developer and its successors in the ordinary course of the construction as may be reasonably requested by the Agency. 4.02 Certificate of Completion for Improvements. Promptly after completion of construction of Improvements in accordance with the provisions of this Part and upon issuance of a certificate of occupancy by the City, the Agency will provide an instrument so certifying provided that, at the time such certification is issued, the ImproVements have been completed (hereafter "Certificate of Completion"). Such Certificate of Completion shall be conclusive determination that the covenants in this Agreement with respect to the obligations of Developer, its successors and assigns, to construct the Improvements and the dates for the beginning and completion of construction thereof have been met. Such Certificate of Completion shall be in such form as will enable it to be recorded among the official records of San Mateo County. Such Certificate of Completion and determination shall not constitute evidence of compliance with or satisfaction of any Disposition and Development Page 7 of 21 Agreement (Bay West Cove) December 5, 1997 obligation of Developer to any holder of a deed of trust securing money loaned to finance the Improvements or any part thereof and shall not be deemed a notice of completion under the California Civil Code. 4.03 Construction Bonds. Prior to the commencement of construction of any portion of the Improvements that will be dedicated to the Agency or City, the Developer shall provide to the Agency a labor and material bond and performance bond in an amount equal to the cost of construction of the public improvements. The bonds shall be issued by a reputable insurance company licensed to do business in California. Such bonds shall name the Agency as co-obligee. Article Five: CHANGES IN DEVELOPER 5.01 Identity of Developer. The Developer is a Limited Liability Corporation. 5.02 Changes Only Pursuant To This Agreement. The qualifications, experience and expertise of Developer is of particular concern to the Agency. It is because of these qualifications, experience and expertise that the Agency has entered into this Agreement. No voluntary or involuntary successor in interest to Developer shall acquire any rights or powers under this Agreement, except as hereinafter provided. Artide Six: DEFAULT 6.01 Scope of Remedies. During the development of the Improvements, and prior to the issuance of a Certificate of Completion for such Improvements hereof, the following shall govern the Parties' remedies for breach of the Agreement. 6.02 No Fault of Parties. The following events constitute a basis for a Party, otherwise allowed by this Disposition and Development Page 8 of 21 Agreement (Bay West Cove) December 5, 1997 Agreement, to terminate this Agreement, without the fault of the other: (a) The Developer or its successor, despite good faith efforts, is unable to obtain permits or approvals from the City of South San Francisco which are reasonably satisfactory for Developer to construct the Improvements and operate its business on the Property; (b) If the Property materially changes prior to dose of escrow. Upon the happening of either of the above-described events, and at the election of either Party, this Agreement may be terminated as to the portion of the Property affected by the default by written notice to the other Party. Thereafter, as relates to the portion of the Property affected by the default neither Party shall have any rights against or liability to the other, except as set forth in Article Six and Part Two. 6.03 Fault of Agency. Except as to events constituting a basis for termination under Section 6.02, the following events each constitute a basis for Developer to take action against the Agency: (a) Agency without good cause fails to convey the Property within the manner and form herein called for and the Developer is otherwise entitled by this Agreement to such action or conveyance; or (b) The Agency breaches any other material provisions of this Agreement. Upon the occurrence of any of the above-described events, the Developer shall first notify the Agency in writing of its purported breach or failure, giving the Agency ten (10) days from receipt of such notice to cure such breach or failure or if the nature of the breach or failure is such that it cannot reasonably be cured in ten (10) days, then giving the Agency such longer period as reasonably may be required for such cure provided that Agency commences action to cure the breach or default within said ten (10) day period and thereafter diligently pursues the cure to completion. In the event Agency does not then so cure or commence to cure within said ten (10) days, then the Developer thereafter shall have the right to either terminate this DDA, or seek specific performance of the terms of the DDA. Disposition and Development Page 9 of 21 Agreement (Bay West Cove) December 5, 1997 Developer and its successors' remedies for breach pursuant to this section shall be limited to seeking specific performance of this Agreement. Developer and its successors shall not be entitled to seek or obtain any form of damages against the Agency or City. 6.04 Fault of Developer. Except as to events constituting a basis for termination under Section 6.02, the following events each constitute a basis for the Agency to take action against the Developer and its successors: (a) The Developer or its successors refuses to accept conveyance from the Agency of the Property within the time periods, and under such terms as herein called for; (b) Developer fails to tender any amount it is required to pay pursuant to Section 3.03 of this Part; or Upon the occurrence of any of the above-described events, the Agency shall first notify the Developer or its successors in writing of its purported breach, failure or act above-described, giving the Developer or its successors ten (10) days from receipt of such notice to cure such breach, failure, or act or if the nature of the breach or failure is such that it cannot reasonably be cured in ten (10) days, then giving the Developer or its successors such longer period as reasonably may be required for such cure or action provided that Developer or its successors commences action to cure the breach or default within said ten (10) day period and thereafter diligently pursues the cure to completion. In the event Developer or its successors does not then so cure within said ten (10) days, or in the event that Developer or its successors does not commence curing a default which is not curable within said ten (10) days, the Agency thereafter shall be afforded the right to terminate this Agreement and any other rights afforded it by law or in equity. ·" Disposition and Development Page 10 of 21 Agreement (Bay West Cove) December 5, 1997 PART TWO: GENERAL PROVISIONS Article One: GENERAL REQUIREMENTS AFTER CONSTRUCTION 1.01 Applicability. The Developer, for itself, its successors and assigns agrees that the covenants against discrimination at Section 1.02 of this Part shall be perpetual, and the provisions of the Redevelopment Plan, shall be in effect for the duration of the Redevelopment Plan. 1.02 Mandatory Language in All Subsequent Deeds. Leases and Contracts. All deeds, leases or contracts made or entered into by Developer, its successors or assigns, as to any portion of the Property shall contain therein the following language: (a) In Deeds: "Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land." (b) In Leases: "The lessee herein covenants by and for the lessee and lessee's heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is Disposition and Development Page 11 of 21 Agreement (Bay West Cove) December 5, 1997 made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, religion, creed, sex, marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased." (c) In Contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, creed, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land." 1.03 Contents of Grant Deed. Any Grant Deed from the Agency shall contain the covenants set forth in Section 1.02 of this Part and such conditions of approval imposed by the City as are required to be contained in the Grant Deed. Disposition and Development Page 12 of 21 Agreement (Bay West Cove) December 5, 1997 Article Two: SECURITY FINANCING AND RIGHTS OF HOLDERS 2.01 No Encumbrances Except for Development Purposes. Notwithstanding any other provision of this Agreement, mortgages and deeds of trust, or any other reasonable method of security (including assignment of leases or ground leases to a lender as security for a loan), are permitted to be placed upon the Property before the Certificate of Completion has been issued by the Agency, but only for the purpose of securing loans of funds to be used for financing the acquisition of the Property and/or the design, and construction of Improvements and any other expenditures reasonably necessary and appropriate to develop the Property under this Agreement. The Developer shall promptly notify the Agency of any mortgage, deed of trust, sale and lease-back or other financing, conveyance, encumbrance or lien that has been or will be created or attached to the Property. The words "mortgage" and "deed of trust" as used herein include all other appropriate modes of financing acquisition, construction, and development of the Property or any portion thereof. 2.02 Holder Not Obligated to Construct. The holder of any mortgage, deed of trust or other security interest authorized by this Agreement is not obligated to construct or complete any improvement or to guarantee such construction or completion; nor shall any covenant or any other provision in conveyances from the Agency to Developer evidencing the realty comprising the Property or any part thereof be construed so to obligate such holder. Nothing in this Agreement shall be deemed to permit or authorize any such holder to devote the Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 2.03 Notice of Default and Right to Cure. Whenever the Agency pursuant to its rights set forth in this DDA delivers any notice or demand to the Developer with respect to the commencement, completion, or cessation in the construction of the Improvements the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such Disposition and Development Page 13 of 21 Agreement (Bay West Cove) December 5, 1997 holder shall (insofar as the rights of the Agency are concerned) have the right, but not the obligation, at its option, within ninety (90) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default or breach and to add the cost thereof to the security interest debt and the lien on its security interest. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Improvements (beyond the extent necessary to conserve or protect such improvements or construction already made) without first having expressly assumed in writing the Developer's obligations to the Agency relating specifically to such Improvements under this Agreement. The holder in that event must agree to complete, in the manner provided in this Agreement, the Improvements and submit evidence reasonably satisfactory to the Agency that it has the developmental capability on staff or retainer and financial capacity necessary to perform such obligations. Any such holder properly completing such Improvements pursuant to this paragraph shall assume all rights and obligations of Developer under this Agreement and shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency. 2.04 Modifications to Agreement. The Agency shall not unreasonably withhold its consent to modifications of this Agreement requested by Developer's lender or lenders provided such modifications do not alter the Agency's substantive rights and obligations under this Agreement. Article Three: GENERAL PROVISIONS 3.01 Notices. Demands and Communications. Formal notices, demands, and communications between the Agency and the Developer shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested or delivered personally, to the principal office of the Agency .and the Developer as follows: Disposition and Development Page 14 of 21 Agreement (Bay West Cove) December 5, 1997 Agency: South San Francisco Redevelopment Agency 400 Grand Avenue South San Francisco, California 94083 Attn: Michael A. Wilson, Executive Director cc: Meyers, Nave, Riback, Silver & Wilson 777 Davis Street, Suite 300 San Leandro, CA 94577 Attn: Steve Mattas, Agency Counsel Developer: Bay West Cove, L.L.C. 600 Townsend Street San Francisco, CA 94103 Attn: David Connor Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section 3.01. The failure of either Party to send a courtesy copy notice to the other party's counsel noted above shall not invalidate any notice sent by such Party. 3.02 Conflict of Interests. No member, official or employee of the Agency shall make any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. 3.03 Non-Liability of Agency Officials. Employees and Agents. No member, official, employee or agent of the Agency or City of South San Francisco shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or successor or on any obligation under the terms of this Agreement. Disposition and Development Page 15 of 21 Agreement (Bay West Cove) December 5, 1997 3.04 Enforced Delay. In addition to specific provisions of this Agreement, performance by either Party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions (excluding those imposed by the Agency or the City) or priority; litigation (including suits filed by third parties conceming or arising out of this Agreement or suits challenging approvals of this Project by the City of South San Francisco); weather or soils conditions which will necessitate delays; inability to secure necessary labor, materials or tools; delays of any contractor, sub-contractor or supplier; acts of the other Party; acts or failure to act of any public or governmental agency or entity (other than the acts or failure to act of the Agency); or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform. The Party claiming such extension shall send written notice of the extension to the other within thirty (30) days from the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the Agency and the Developer by mutual agreement of Developer and the Executive Director unless the Executive Director, in his discretion, refers the matter of extension to the Agency Board. 3.05 Provision Not Merged With Deeds. None of the provisions of this Agreement are intended to or shall be merged by any Grant Deed transferring title to any real property the subject of this Agreement from Agency to Developer or any successor in interest, and any such Grant Deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. 3.06 Indemnity by Developer. (a) Except as provided in Section 3.06(c) of this Part, Developer and its successors shall defend, indemnify, and hold harmless the Agency for any claim against the Agency of any nature whatsoever arising out of or in connection with Developer's or its successor's purported acts or omissions on or about, or Developer's or its successor's occupancy or use of, the Property or Developer's or its successor's performance or non-performance under or with respect to this Agreement, and any · Disposition and Development Page 16 of 21 Agreement (Bay West Cove) December 5, 1997 claims for relocation related to the Property, except to the extent any such claim arises out of or in connection with the Agency's purported acts or omissions on, about, or with respect to the Property or the Agency's performance or non- performance under, or with respect, to this Agreement. If any such claim is attributable to an action or omission of Developer or its successors' construction contractor, such contractor shall also defend, indemnify and hold harmless the Agency against such claim arising out of or in connection with Developer or its successors' construction contractor's purported acts or omissions on or about, or Developer or its successors' construction contractor's occupancy or use of, the Property or Developer or its successors' construction contractor's performance or non- performance under or with respect to this Agreement, except to the extent any such claim arises out of or in connection with the Agency's purported acts or omissions on, about or with respect to the Property or the Agency's performance or non- performance under or with respect to this Agreement. (b) Upon lmowledge of any such claim, the Agency shall notify the Developer or its approved successors and its construction contractor of such claim in writing. Upon receipt of such written notice, Developer or its successors, and, if applicable, its construction contractor, shall defend at their own expense any suit based on such claim. Such defense shall include provision of separate and independent counsel for the Agency where such counsel is required by the California Code of Professional Conduct, or by common law conflict of interest principles. The Agency shall have the right to choose such independent counsel. If any judgment or claims against the Agency.shall be allowed, the Developer or its successors and, if applicable, its construction contractor, shall pay or satisfy such judgment or claim and pay all costs and expenses in connection therewith. (c) The obligations to defend, indemnify and hold harmless the Agency, specified in Sections 3.06(a) and (b) above, shall not apply to any claim against the Agency arising from damage caused by the Agency's act or omission or the tortious conduct of the Agency. (d) Developer or its successors, the Agency, and Developer or its successors' construction contractor shall have an affirmative duty to cooperate with one another in the conduct of any suit arising from this Agreement or from development of the Property pursuant to this Agreement; provided, however, that such duty to cooperate shall be limited by any conflict of interest which arises during - Disposition and Development Page 17 of 21 Agreement (Bay West Cove) December 5, 1997 the course of any such suit. 3.07 Rights and Remedies Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies are cumulative, and the exercise or failure to exercise one or more of such rights or remedies by either Party shall not preclude the exercise by it, at the same time or different times, of any right or remedy for the same default or any other default. 3.09 Real Estate Commissions. Neither Party shall be responsible to the other for any real estate commissions or brokerage fees which may arise from this Agreement or otherwise be incurred by the other Party. 3.10 Reasonable Approvals. Unless the context indicates otherwise, where an action under this Agreement requires approval of a Party, such approval shall not be unreasonably withheld. 3.11 Applicable Law. This Agreement shall be interpreted under and pursuant to the laws of the State of California. 3.12 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability. 3.13 Legal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the Party prevailing in any such action shall be entitled to recover against the Party not Disposition and Development Page 18 of 21 Agreement (Bay West Cove) December 5, 1997 prevailing all reasonable attomeys' fees and costs incurred in such action. 3.14 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest and assigns of each of the Parties hereto except that there shall be no transfer of any interest by any of the Parties hereto except pursuant to the terms of this Agreement. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any successor, heir, administrator, executor or assign of such Party who has acquired an interest in compliance with the terms of this Agreement, or under law. 3.15 Parties Not Co-Venturers. Nothing in this Agreement is intended to or does establish the Parties as partners, co-venturers, or principal and agent with one another. 3.16 Warranties. The Agency expresses no warranty or representation to the Developer as to fitness or condition of the Property which is the subject of this Agreement for the building or construction to be conducted thereon, except as follows: Agency has made no untrue statements or representations in connection with this Agreement, and all items transferred to Developer on or before Closing shall have been and be true, correct and complete copies of what they purport to be. Agency has not failed to state or disclose any material fact in connection with the transaction contemplated by this Agreement. Agency lmows of no facts, nor has Agency failed to disclose any fact, which would prevent Developer from using and operating the Property after Closing in the manner in which it is intended to be operated by Developer. 3. ! 7 Time is of the Essence. In all matters under this Agreement, the Parties agree that time is of the Csscncc. 3.18 ,Complete Understanding of the Parties. This Agreement consists of the text of the Agreement and the attached Disposition and Development Page 19 of 21 Agreement (Bay West Cove) December 5, 1997 Exhibits and constitutes the entire understanding and agreement of the Parties. 3.19 Good Faith. The Parties recognize that it is impractical in this Agreement to provide for every contingency which may arise during the life of the Agreement, and the Parties hereby agree that it is their intention that this Agreement shall operate fairly between them and without detriment to the interests of either of them, and that, if during the term of this Agreement either Party believes that this Agreement is operating unfairly, the Parties will use their best efforts to agree on such action as may be necessary to remove the cause or causes of such unfairness. 3.20 Prevailing Wage Policy. Developer shall comply with Agency Resolution No. __, attached to the OPA as Exhibit K, and incorporated by reference herein, regarding the payment of prevailing wage. Disposition and Development Page 20 of 2 ! Agreement (Bay West Cove) December 5, 1997 WHEREFORE, the Parties have executed this Agreement in triplicate on or as of the date first above written. REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO By: MICHAEL A. WILSON Executive Director APPROVED AS TO FORM: By: Agency Counsel ATTEST: By: Clerk BAY WEST COVE, L.L.C. Dated By: DAVID CONNOR A:Sheanvtr.911 STM:dka - rev. 5/5/97 LMS:rja - rev. 6/19/97 STM:dka - rev. 6/24/97 STM:STM -rev. 9/11/97 STM:stm - rev. 12/5/97 Disposition and Development Page 21 of 21 Agreement (Bay West Cove) December 5, 1997 EXHIBIT A DEVELOPER PROPERTY DESCRIPTION Preliminary DescriptiOn 'of Onshore Lands of Bay West Cove The following described land is a portion of Parcels I and 2 as described in Chicago -I-rUe. Company .TAle Order No. 817301. The basis of bearings included in this description is the bearing North 02° 35' 59' West taken on the centerline of Gateway Boulevard as shown on that certain Final Map Gateway Center filed for record on October 1'~, 1982 in Book 107 of map.~ at p~g~. ~7-$0, San Mate-° County RecOrds. The herein described land is situated in the City of South San Francisco, County of San Mate,, State of Califomia, and described as follows: Beginning at a point on the northerly line of Oyster Point Boulevard (formerly Buffer Road) distant thereon North 88° 14' 25' East 492.99 feet from the point, of intersection of said northerly line of Oyster Point Boulevard with the southeasterly line of the Southern Pao~f~o Company right-of-way; ~uuj lit t~l IJ ~euce along file southeasterly line ot Parcel I of Trtle Order No. 817301 North 38° 4S' 34" East 79.12 feet to the TRUE POINT OF RI:~IHNING of the land deooribcd herein; thcncc clor.,kwise around th~ perimeter of the land described herein the following courses and distances: westerly __ along a non-tangent curve to the right having a radial beadng in of North 04° 23' 13" West, a radial beadng out of South 03° 19' 54' East, a central ·angle of 01' 03' 1.9', a radius of 4,888.39 feet and an arc length of 90.03 feet; thence North 84° 31' 56" West 109.70 feet;, thence'northwesterly along a non-tangent curve to the dght having a radial h~.aring in of North 07° 08' 31' F. oat, e radial bearing out of Goufll 02' 04' 23" Weal a central angle of 54° 55' 52', a radius of 263.02 feet and an arc length of 252.17 feet to a point on the SOutheasterly line of the Southern Pacifio Company right-of-way; thence northeasterly along said line North 38° 43' 10' Cast 2,310.20 feet; th~,,u= leuvi,g ~mid Southern Pacific Company right-of-way and continuing along the approximation of a line defined by the 3.1 NGVD elevation line (mean high water) along the shore of San Francisco Bay the following courses and distances: South 01 ° 13' 54' East 43.30 feet; thence E;outh 15^ 17' 20' Weal 12~.95 feet; thence Sou~ 08~ 23' 4b~ l:ast 36.44 teet; thence South 45° 16' 53' East 24.04 feet; thence South 11° 35' 07' East 14.60 feet;. thence South 43° 32' 13' West 19.36 feet;, thence South 04' 51' 36" West 36.22 feet; thence South 10° 02' 48' East 339.57 feet; thence south 56° 17' 16' West 947.36 feet;. thence South 33° 02' 22' East 230.29 feet; thence along a tangent curve to the left. having a central angle of 89° 24' 53', a radius of 74.00 feet and an arc length of 115.48 · feet; thence North 57° 32' 45' East 875.79 feet; thence North 74* 35' 22' East 125.21 feet; thence North 88* 29' 51' East 39.50 feet; thence South 50° 56' 40' East 18.86 feet; thence South 14° 10' 17' West 87.34 feet;, thence South 60° 41' 27" East 15.05 feet; thence North 61° 41' 14" East 18.62 feet; thence North 30o 34' 09' East 73.29 feet; thence North 67° 02' 30' East 145.26 feet;, thence North 88° 58' 34" East 174.77 feet;, __ thence South 80° 36' 52' East 83.16 feet; thence South 63* 10' 55" East 70.39 feet; thence leaving said NGVD elevation line and continuing South 73°-37' 38' West 235.38 feet; thence South 01° 09' 46" West 1,148.90 feet; thence South 88* 14' 26" West November 18, 1997 Page I of 2 Revised December 10. 1997 Freyer & Laureta Bay West Cove Preliminary Description of Onshore Lands 521.70 feet; thence North 01-* 45' 34' West 247.20 feet; thence South 88° 14' 26' WeSt 782.53 feet; thence North 60° 45' 19" West 110.52 feet; thence South 39° 13' 11" West 267.34 feet; thence South 87° 23' 59" West 69.95 feet; thence South 02° 36' 01" East 19.75 feet; thence along a tangent curve to the fight, having a central angle of 86° 55' 57", a radius of. 38.00 feet and an arc length of 57.68 feet; thence South 84° 19' 56" West 25.06 feet; thence along a tangent curve to the right, having a central angle of 01° 16' 51', a radius of 4,888.39 feet and an arc length of 109.28 feet to the TRtJF POINT OF BECINNIN(~. Containing 47_19 acres more or less, This description of land is not a legal property description as. defined in the Subdivision Map Act and may not be used as the basis for an offer for sale or for the sale of the lands described herein, November 18, 1997 Page 2 of 2 Freyer & Laureta EXHIBIT B CITY PROPERTY DESCRIPTION · 12/16/97 17:05 'g~5033444013 MORRIS & O'KIEF ~00Z · DF_~CRIFrION ~ RO~, DI$~ ~N ~R~ 87~ 04' 30" ~T 492.990 ~ ~OM ~ ~ OF ~ECTiON 0F S~ ~R~Y L~ OF OYS~ ~ ~~ ~~y B~ ~ BO~ ~Y ~ R~ 782.526 ~; ~ SO~ 20 55' 30" ~T