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HomeMy WebLinkAboutReso RDA 10-2000 RESOLUTION NO. 10-2000 REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO STATE OF CALIFORNIA A RESOLUTION APPROVING THE SALE OF PROPERTY AND TRANSFER OF INTERESTS PURSUANT TO THAT CERTAIN OWNER PARTICIPATION AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF SOUTH SAN FRANCISCO AND BAY WEST COVE, L.L.C. AND APPROVING AN AMENDMENT TO THAT OWNER PARTICIPATION AGREEMENT TO ALLOW FOR ADDITIONAL TIME FOR CONSTRUCTION OF IMPROVEMENTS WHEREAS, the Redevelopment Agency of the City of South San Francisco, California ("Agency") and Bay West Cove, L.L.C. ("Bay West") entered into that certain Owner Participation Agreement ("Agreement") dated January 7, 1998. By its Resolution No. 19-97, the Agency approved the Agreement. At that time, pursuant to Section 6.1.2 of the Agreement, the Agency approved the purchase of property by AutoNation USA Corporation ("AutoNation USA") from Bay West, and AutoNation USA has purchased Parcel No. 1 (identified in the Agreement) from Bay West. WHEREAS, Section 6.1.2 of the Agreement provides that if prior to the completion of the proposed project, the Participant sells, transfers, conveys, subleases or assigns its interest in the property or any of its rights in the Agreement to or in favor of any person or entity, the Agency may review and approve the financial status and qualifications of the potential person or entity to which the property is being sold, transferred, assigned, subleased or conveyed. WHEREAS, Section 8.03 of the Agreement provides that any transfer of a parcel prior to recordation of the certificate of completion for that parcel is subject to all of the conditions of approval, covenants and restrictions of the Agreement. WHEREAS, on May 19, 2000, Hines Oyster Point, LLC ("Hines") acquired Parcel No. 1 (identified in the Agreement) from AutoNation USA. WHEREAS, in connection with AutoNation USA's conveyance of Parcel No. 1 to Hines, on May 19, 2000, AutoNation USA and Hines entered into that certain Assignment and Assumption Agreement, attached hereto as Exhibit A, in which AutoNation USA assigned and conveyed to Hines all of its rights, titles, interests and obligations under the Agreement and Hines assumed the payment and performance of all of the covenants, debts, duties, liabilities and obligations of AutoNation USA under the Agreement. WHEREAS, the Agency and AutoNation USA and Hines desire for the Agency to approve of the sale of Parcel No. 1 from AutoNation to Hines and consent to AutoNation USA's assignment and conveyance to Hines of all of its rights, titles, interests, and obligations under the Agreement and Hines' assumption of the payment and performance of all of the covenants, debts, duties, liabilities and obligations of AutoNation USA under the Agreement, including the payment required under Section 2.08 of the Agreement in the amount of $960,750.00. Specifically, the parties desire that -' Agency execute that certain Assignment and Assumption Agreement between AutoNation and Hines, attached hereto as Exhibit A. WHEREAS, certain provisions of the Agreement require that the Participant complete the construction of all improvements within two and one half (2.5) years from the date of the Agreement or, in the event of a hotel improvement, that construction be completed within three and one-half (3.5) years from the date of the Agreement, and that if construction is not completed within the applicable time periods, Participant must pay Agency certain penalty amounts. WHEREAS, the Agency and Hines now desire to amend the Agreement to allow for additional time for construction and to extend the time for the payment of penalties by providing that the construction of all types of improvements must be completed within four and one half (4.5) years from the date of the Agreement and that penalties will be paid by the Participant if construction is not completed within this time period. Specifically, the Agency and Hines desire to enter into that certain Amendment No. 1 To Owner Participation Agreement Dated January 7, 1998 By And Between The Redevelopment Agency Of The City Of South San Francisco, California And Bay West Cove, L.L.C., attached hereto as Exhibit B. NOW, THEREFORE, BE IT RESOLVED THAT the Redevelopment Agency of the City of South San Francisco does hereby approve of the sale of Parcel No. 1 from AutoNation USA to Hines and consents to AutoNation USA's assignment and conveyance to Hines of all of its rights, titles, interests, and obligations under the Agreement and Hines' assumption of the payment and performance of all of the covenants, debts, duties, liabilities and obligations of AutoNation USA under the Agreement, and the Agency's Executive Director is hereby authorized to execute that Assignment and Assumption Agreement between AutoNation USA and Hines, attached hereto as Exhibit A. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT Amendment No. 1 To Owner Participation Agreement Dated January 7, 1998 By And Between The Redevelopment Agency Of The City Of South San Francisco, California And Bay West Cove, L.L.C., attached hereto as Exhibit B, between the Agency and Hines, is hereby approved, and the Agency's Executive Director is hereby authorized to execute the Amendment No. 1. 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 Regular meeting held on the 14th day of June, 2000, by the following vote: AYES: Boardmembers James L. Datzman, and Eu.qene R. Mullin Vice Chair Joseph A. Fernekes and Chair Karyl Matsumoto NOES: None. ABSTAIN: None. ABSENT: Boardmember Penna. F:\WPD~lN RSW~405\001 \Redevelopment~OPAAMEN DRES.058.revise.doc Recording Requested By And After Recording Please Return To: City of South San Francisco Economic and Community Development Department 400 Grand Avenue, P.O. Box 711 South San Francisco, CA 94080 Attn: Executive Director (Area Above This Line Reserved For Recorder's Use) ASSIGNMENT AND ASSUMPTION AGREEMENT BY AND BETWEEN AUTONATION USA CORPORATION AND HINES OYSTER POINT, LLC THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") dated as of May 19, 2000, is entered into by and between AUTONATION USA CORPORATION CAutoNation USA") and HINES OYSTER POINT, LLC ("Hines"). The parties agree as follows: This Assignment Agreement is entered into with reference to the following facts: A. The Redevelopment Agency of the City of South San Francisco, California ("Agency") and Bay West Cove, L:L.C. ("Bay West") entered into that certain Owner Participation Agreement ("Agreement") dated January 7, 1998. By its Resolution No. 19-97, the Agency approved the Agreement. At that time, pursuant to Section 6.1.2 of the Agreement, the Agency approved the purchase of property by AutoNation USA from Bay West, and AutoNation USA purchased Parcel No. 1 (identified in the Agreement) from Bay West. B. Section 6.1.2 of the Agreement provides that if prior to the completion of the proposed project, the Participant sells, transfers, conveys, subleases or assigns its interest in the property or any of its rights in the Agreement to or in favor of any person or entity, the Agency may review and approve the financial status and qualifications of the potential person or entity to which the property is being sold, transferred, assigned, subleased or conveyed. C. Section 8.03 of the Agreement provides that any transfer of a parcel prior to recordation of the certificate of completion for that parcel is subject to all of the conditions of approval, covenants and restrictions of the Agreement. D. On May 19, 2000, Hines acquired Parcel No. 1 from AutoNation USA. E. In connection with AutoNation USA's conveyance of Parcel No. 1 to Hines, AutoNation USA and Hines entered into that certain Assignment, Assumption and Indemnification Agreement dated effective May 19, 2000 ("Assignment and Assumption Agreement"). Under the Assignment and Assumption Agreement, AutoNation USA, among other things, fully assigned and conveyed to Hines the rights, titles and interests of AutoNation USA under the Agreement and Hines, among other things, fully assumed from AutoNation USA, all ofAutoNation USA's covenants, debts, duties, liabilities and obligations under the Agreement, including the payment required under Section 2.08 of the Agreement in the amount of $960,750.00. F. In connection with AutoNation USA's conveyance of Parcel No. 1 to Hines, the parties hereto now desire to reeffectuate and reaffirm that, as of May 19, 2000, AutoNation USA assigned to Hines all of its rights, titles, interests and obligations under the Agreement and Hines assumed from AutoNation USA the payment and performance of all of the covenants, debts duties, liabilities and obligations under the Agreement. The parties are also entering into this Assignment Agreement for the purposes of providing a document in proper form for recordation and notice of the assignment and assumption stated below and contained in the Assignment and Assumption Agreement and enabling the Agency to consent to the sale of Parcel No. 1 and the assignment and assumption made by and between AutoNation USA and Hines. NOW, THEREFORE, the parties hereto agree as follows: 1. Effective May 19, 2000, AutoNation USA assigned and conveyed, and does hereby assign and convey, to Hines all of its rights, titles, interests and obligations under the Agreement. 2. Effective May 19, 2000, Hines assumed, and does hereby assume, the payment and performance of all of the covenants, debts, duties, liabilities and obligations of AutoNation USA under the Agreement, including the payment required under Section 2.08 of the Agreement in the amount of $960,750.00. [Signatures of the parties and consent of the Agency appear on the following page.] 2 IN WITNESS WHEREOF, the parties listed below have executed this Assignment Agreement as of the date set forth above. AUTONATION USA CORPORATION (Assignor) By its: HINES OYSTER POINT, LLC (Assignee) By its: As of the date below, the undersigned, the Redevelopment Agency of the City of South San Francisco, California, hereby consents to AutoNation USA's assignment and conveyance to Hines of all of its fights, titles, interests and obligations under the Agreement, and Hines' assumption of the payment and performance of all of AutoNation USA's covenants, debts, duties, liabilities and obligations under the Agreement, including the payment required under Section 2.08 of the Agreement in the amount of $960,750.00, as set forth herein, and hereby approves of the sale of Parcel No. 1 from AutoNation USA to Hines. Dated: CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY (Agency) By its: Executive Director ATTEST: Clerk APPROVED AS TO FORM: Agency Counsel \~FS 1 ~SYS\WPD~,~arsw~405~01 ~Redevelopment~assignauto. 0607.doc AMENDMENT NO, 1 TO OWNER PARTICIPATION AGREEMENT DATED JANUARY 7, 1998 BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTIt SAN FRANCISCO, CALIFORNIA AND BAY WEST COVE, L.L.C. This is Amendment No. 1 ("Amendment") to that certain Owner Participation Agreement dated January 7, 1998 ("Agreement") by and between the Redevelopment Agency of the City of South San Francisco, California, a public body, corporate and politic ("Agency") and Bay West Cove, L.L.C. ("Bay West"). This Amendment is dated for convenience this ~ day of June, 2000, and is entered into by and between the Agency and Hines Oyster Point, LLC ("Hines"). Recitals A. The Agency and Bay West entered into the Agreement dated January 7, 1998. By its Resolution No. 19-97, the Agency approved the Agreement. At that time, pursuant to Section 6.1.2 of the Agreement, the Agency approved the purchase of property by AutoNation USA Corporation ("AutoNation USA") from Bay West, and AutoNation USA has purchased Parcel No. 1 (identified in the Agreement) from Bay West. A. On May 19, 2000, Hines acquired Parcel No. 1 (identified in the Agreement) from AutoNation USA. A. On May 19, 2000, Hines and AutoNation USA entered into that certain Assignment and Assumption Agreement in which AutoNation USA assigned and conveyed all of its rights, titles, interest and obligations under the Agreement to Hines and Hines assumed the payment and performance of all of the covenants, debts, duties, liabilities and obligations of AutoNation USA under the Agreement. A. Section 8.03 of the Agreement provides that any transfer ora parcel prior to recordation of the certificate of completion for that parcel shall be subject to all of the conditions of approval, covenants and restrictions of the Agreement. A. Certain provisions of the Agreement require that the Participant complete the construction of all improvements within two and one half (2.5) years from the date of the Agreement or, in the event of a hotel improvement, that construction be completed within three and one-half (3.5) years from the date of the Agreement, and that if construction is not completed within the applicable time periods, Participant must pay Agency certain penalty amounts. A..~. The Agency and the Participant, the parties hereto, now desire to amend the Agreement to allow for additional time for construction and to extend the time for the payment of penalties by providing that the construction of all types of improvements must be completed within four and one half (4.5) years from the date of the Agreement and that penalties will be paid by the Participant if construction is not completed within this time period. Terms 1. Upon the execution of this Amendment by the parties listed below and the approval of this Amendment by the Agency's Board, the parties agree that Section 2.03, Section 2.08, and Exhibit G of the Agreement shall be amended and superseded as follows. 2. The last sentence of Section 2.03 of the Agreement, entitled "Scope of Development," is replaced in its entirety with and superseded by the following prOVision: Participant or its successors shall complete all Improvements, including On-site Improvements, within four and one half (4.5) years from the date of this Agreement. 3. Section 2.08 of the Agreement, entitled "Penalty for Failure to Complete Construction of Improvements," is replaced in its entirety with and superseded by the following provision: If Participant or its successors fails to complete the cOnstruction of any of the Improvements on the Property within four and one half (4.5) years from the effective date of this Agreement, then Participant shall, immediately and without need for submission of a demand from Agency, be obligated to pay Agency. two million five hundred thousand dollars ($2,500,000). Said amount shall be reduced by the amount allocated to each of the seven development parcels upon completion of construction of each of the parcels. The penalty amount for each phase is as follows: Parcel 1 $960,750; Parcel 2 $224,750; Parcel 3 $220,000; Parcel 4 $203,125; Parcel 5 $500,550; Parcel 6 $187,700; and Parcel 8 $203,125. The parcels discussed herein are as shown on the Tentative Submission Map included herewith as Exhibit F. 4. Exhibit G to the Agreement, entitled "Development Schedule," is replaced in its entirety with and superseded by the following provision: Construction shall be completed on all parcels to be developed within four and one half (4.5) years from the effective date of the OPA. Effective Date of OPA January 7, 1998 Construction to be completed by: July 7, 2002 5. Except as set forth herein, all other provisions of Agreement shall continue to apply. Agreed to this __ day of June, 2000. IN WITNESS WHEREOF, each of the parties listed below has executed this Amendmem, or has caused this Amendment to be executed on its behalf by a representative duly authorized, as of the above date. REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA (Agency) By: Its: Executive Director APPROVED AS TO FORM: By: Agency Counsel ATTEST: By: Agency Clerk/Secretary HINES OYSTER POINT, LLC (Participant, Parcel No. 1) By: Its: F:\WPD\MnrswX~05\001 ~Redevelopm~t~amendhines0607.wpd