HomeMy WebLinkAboutReso RDA 27-2000 RESOLUTION NO. 27-2000
REDEVELOPMENT AGENCY OF SOUTH SAN FRANCISCO, STATE OF CALIFORINA
A RESOLUTION APPROVING AN OWNER PARTICIPATION AGREEMENT FOR BAY WEST
COVE PLANNING AREAS 2 & 3 (SLOUGH BTC, LLC DEVELOPMENT)
WHEREAS, A Supplemental Environmental Impact Report has been prepared in accordance
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,
WHEREAS, the Redevelopment Agency held a public hearing to consider the Owner
Participation Agreement between the South San Francisco Redevelopment Agency and Slough BTC on
November 21, 2000; and,
NOW, THEREFORE, BE IT RESOLVED, that the Redevelopment Agency hereby approves
the Owner Participation Agreement between Slough BTC and the South San Francisco Redevelopment
Agency attached hereto as Exhibit 1.
BE IT FURTHER RESOLVED that the Executive Director is hereby authorized to execute the
Owner Participation Agreement on behalf of the Agency and the Clerk is directed to record the
Agreement.
I hereby certify that the foregoing Resolution was regularly introduced and adopted by
the Redevelopment Agency of South San Francisco at a Special meeting held on the 21st day of
November, 2000 by the following vote:
AYES: Boardmembers Pedro Gonzalez and Eugene R. Mullin, Vice-Chair
Joseph A. Fernekes and Chair Karyl Matsumoto
NOES: None.
ABSTAIN: None.
ABSENT: Boardmember John R. Penna
ATTEST: , ~ /~' ~
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F:\WPD\MNRSW~405\097\OPA Resolution.doc
" Recording Requested By.And
After Recording Please Return To:
City of South San Francisco Redevelopment Agency
400 Grand Avenue
South San Francisco, CA 94080
Attn: Executive Director
(Area Above This Line Reserved For Recorder's Use)
OWNER PARTICIPATION AGREEMENT
by and between
CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY
and
SLOUGH BTC, LLC
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT ("Agreement") dated as of
, 2000 ("Effective Date") is entered into by and between the CITY OF
SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY ("Agency"), a public body,
corporate and politic, and SLOUGH BTC, LLC ("Slough BTC"), a Delaware limited liability
company. Agency and Participant agree as follows:
This Agreement is entered into with reference to the following facts:
A. The purpose of this Agreement is to effectuate the Redevelopment Plan for the
Project Area by providing for the redevelopment of the Property. Completion of the
Improvements and the Project pursuant to this Agreement is in the best interests of City and
Agency, and the health, safety and welfare of residents and taxpayers of the Project Area and
City, and is in accord with the public purposes and provisions of applicable state and local laws.
B. A material inducement to Agency to enter into this Agreement is the agreement
by Participant on behalf of itself and its successors and assigns to pay the penalties provided for
herein if the Improvements are not built or construction of the Improvements is not Completed
within the periods of time specified in this Agreement, and Agency would be unwilling to enter
into this Agreement in the absence of an enforceable commitment by Participant to pay the
penalties provided for herein if the Improvements are not built or construction of the
Improvements is not Completed within the periods of time specified in this Agreement.
C. Construction of the Improvements on the Property and the Completion of the
Project will assist in the elimination of blight in the Project Area, provide additional jobs,
improve safety in the Project Area and substantially improve the economic and physical
conditions in the Project Area in accordance with the purposes and goals of the Redevelopment
Plan.
D. Agency has determined that the land uses specified in this Agreement and the
provisions relating to construction of the Improvements specified in this Agreement are
consistent with the provisions of the Redevelopment Plan and each of its applicable elements.
E. The Property has heretofore been encumbered by that certain Owner Participation
Agreement by and between Agency and Bay West Cove, L.L.C. ("Bay West") dated January 7,
1998 ("Bay West Agreement"), which was approved by Agency by Resolution No. 19-97. Parcel
Nos. 2, 3, 5 and 6 as identified in the Bay West Agreement is the Property which is the subject of,
and defined in, this Agreement.
F. On April 4, 2000, Slough Estates USA Inc. ("Slough USA"), a Delaware
corporation, acquired the Property from Bay West. On May 15, 2000, Slough BTC acquired the
Property from Slough USA.
G. On June 28, 2000, Bay West, Slough USA and Slough BTC entered into that
certain Assignment and Assumption Agreement in which Bay West assigned, transferred and
conveyed to Slough USA all of Bay West's fights, titles, interests and obligations under the Bay
West Agreement with respect to the Property and Slough USA assumed and agreed to keep,
perform and fulfill all of Bay West's covenants, debts, duties, liabilities and obligations under
the Bay West Agreement with respect to the Property. In that same Assignment and Assumption
Agreement, in mm, Slough USA assigned, transferred and conveyed to Slough BTC all of
Slough USA's rights, titles, interests and obligations under the Bay West Agreement with respect
to the Property and Slough BTC assumed and agreed to keep, perform and fulfill all of Slough
USA's covenants, debts, duties, liabilities and obligations under the Bay West Agreement with
respect to the Property.
H. On June 28, 2000, by its Resolution No. 16-2000, Agency consented to Bay
West's assignment to Slough USA of all of Bay West's rights, titles, interests and obligations
under the Bay West Agreement and Slough USA's assumption of all of Bay West's covenants,
debts, duties, liabilities and obligations under the Bay West Agreement with respect to the
Property, and further consented to Slough USA's subsequent assignment to Slough BTC of all of
Slough USA's rights, titles, interests and obligations under the Bay West Agreement and Slough
BTC's assumption of all of Slough USA's covenants, debts, duties, liabilities and obligations
under the Bay West Agreement with respect to the Property, and approved the sale of the
Property from Bay West to Slough USA, and further approved of the subsequent sale of the
Property from Slough USA to Slough BTC.
I. On June 28, 2000, Agency and Slough BTC entered into that certain Amendment
No.. 1 to Owner Participation Agreement, which amended the Bay West Agreement with respect
to the Property. The Amendment No. 1 was approved by Agency on June 28, 2000, by its
Resolution No. 16-2000.
J. Slough BTC is the owner in fee of the Property as of the Effective Date. The
parties intend and agree that this Agreement shall in all respects replace in their entirety and
supersede the provisions of the Bay West Agreement and the Amendment No. 1 thereto insofar
as such provisions relate or pertain to the Property (Parcel Nos. 2, 3, 5 and 6 identified in the Bay
West Agreement) and neither Slough BTC nor Agency shall have any further rights or
obligations to each other with respect to the Property pursuant to the Bay West Agreement and
Amendment No. 1 thereto.
KJ The intent of the parties hereto is to provide for or reference in this Agreement all
approvals which are necessary from Agency or City in order for Participant to develop the
Property as contemplated herein.
L. Participant acknowledges and agrees that Agency has contributed to the Project
by, among other things, constructing certain off-site improvements.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
Section 1.1 Definitions.
The following terms as used in this Agreement shall be defined as follows:
(a) "Agency" means the City of South San Francisco Redevelopment Agency, a public
body, corporate and politic, exercising governmental functions and powers and
organized and existing under the Community Redevelopment Law of the State of
California, with full power and authority to execute this Agreement. The principal
office of Agency is located at 400 Grand Avenue, South San Francisco, California
94080.
(b) "Agreement" means this Owner Participation Agreement between Agency and
Participant.
(c) "City" means the City of South San Francisco, a municipal corporation. The
principal office of City is located at 400 Grand Avenue, South San Francisco,
California 94080.
(d) Complete," "Completed," or "Completion" when used in reference to the completion
of the construction of the Improvements (or applicable portion thereof as appropriate
in the reference) means that construction of such Improvements has been completed
to the point that City has authorized the occupancy of such Improvements on a
temporary basis.
(e) "Conditions of Approval" means collectively those conditions of approval in
connection with the approval of the Specific Plan and those conditions of approval in
connection with the approval of the Precise Plan, adopted by City by
on ,2000, and which are attached hereto as Exhibit A and Exhibit ~'
B respectively.
(f) "Effective Date" means that date first written above.
(g) "Improvements" means the improvements described and identified in Exhibit C
attached hereto.
(h) "Mitigation and Monitoring Measures" means those mitigation and monitoring
measures listed in the Mitigation and Monitoring Program.
(i) "Mitigation and Monitoring Program" means that mitigation and monitoring program
in the Bay West Cove Supplemental Environmental Impact Report ("SEIR"), as
adopted by City by on ,2000, and which is
attached hereto as Exhibit D.
(j) "Participant" means Slough BTC, and its successors and assigns as approved or
otherwise permitted pursuant to this Agreement.
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(k) "Precise Plan" means the precise plan for the Property, identified as PP-00-063,
approved by Agency on ,2000, by , attached
hereto as Exhibit E, and as such plan may thereafter be amended.
(1) "Project" means the design, development and construction of the Improvements on
the Property in accordance with this Agreement.
(m) "Project Area" means the Shearwater Redevelopment Project Area established by the
Redevelopment Plan.
(n) "Property" means the real property described in Exhibit F attached hereto, which
property is further identified as Assessor's Parcel Nos. 015-010-390, 015-010-400,
015-010-430 and 015-010-420, and as Planning Area 2 and Planning Area 3 in the
Specific Plan. The parcelization or subdivision of the Property may change after the
Effective Date. The term "Property" as used herein shall mean and refer to all
portions of the Property, regardless of any future subdivision or parcelization.
(o) "Redevelopment Plan" means the Redevelopment Plan for the Shearwater
Redevelopment Project, as such plan now exists or may hereafter be amended.
(p) "Schedule of Development" means the timing for the Completion of construction of
the Improvements as set forth in Exhibit G attached hereto.
(q) "Slough BTC" means Slough BTC, LLC, a Delaware limited liability company,
whose business address is 33 West Monroe Street, Suite 2000, Chicago, Illinois
60603.
(r) "Specific Plan" means the specific plan for the Property consisting of the specific
plan identified as SP-97-027/Mod 1, approved by City on ,2000,
by , and Chapter 20.61 of the Bay West Cove Specific Plan, as
amended, approved by City on ,2000, by
, attached hereto collectively as Exhibit H, and as such plan
may thereafter be amended.
ARTICLE 2 DEVELOPMENT OF THE PROPERTY
Section 2.1 The Property.
Slough BTC hereby represents and wan'ants that it is the owner in fee of the Property as
of the Effective Date. The Property is located in the Project Area.
Section 2.2 Scope of Development.
The Project consists of the design, development and construction of the Improvements as
shown and in the manner described in the Specific Plan and the Precise Plan. The Improvements
shall be consistent and in conformity with the Specific Plan, the Precise Plan, and the
Construction Plans.
Generally, and without limiting the preceding paragraph, the Project includes the design,
development and construction of a research and office development consisting of nine (9)
buildings comprising up to 582,000 square feet. The Project includes (and included in the
582,000 square feet) the design, development and construction of approximately 5,000 square
feet of retail space; an approximately 5,000 square foot free standing restaurant; approximately
105,000 square feet of office; approximately 459,000 square feet of research and development;
and related on-site parking and parking structures.
The Project shall also include the design, development and constrUction of a linear park
and public access trail along the bay frontage consistent with the Specific Plan, the Precise Plan
and Bay Conservation and Development Commission ("BCDC") standards. Without negating or
limiting any rights or obligations of any party to any other documents or agreements concerning
the maintenance of the public access trail, including but not limited to that certain Declaration of
Covenants, Conditions, Restrictions and Reciprocal Easements for Shearwater Project recorded
against the Property on January 22, 1998, Document No. 98-008276, in the Official Records of
San Mateo County, California, Participant agrees that it shall maintain or cause to be maintained
the public access trail, which maintenance shall be consistent with BCDC requirements and
pursuant to a plan to be approved by the City Manager.
If a childcare facility is to be constructed on the Property pursuant to the terms of this
Agreement, then the term "Project" as used herein shall also include the design, development and
construction of such childcare facility and related improvements, which shall be up to 8,000
- square feet.
Section 2.3 Amendments to Precise Plan.
Participant acknowledges and agrees that a precise plan for all Improvements on the
Property has not been approved by Agency as of the Effective Date, and that Participant or its
successors and assigns will be required to seek and obtain the approval from Agency of an
amendment to the precise plan approved as of the Effective Date prior to commencing the
construction of any Improvements not shown and included in the precise plan approved as of the
Effective Date (including the restaurant and the childcare facility if such childcare facility is to
be constructed pursuant to the terms of this Agreement), which approval shall not be
unreasonably withheld or delayed if the amendment to the precise plan submitted by Participant
is consistent with the Specific Plan. If the childcare facility is to be constructed pursuant to the
terms of this Agreement, Participant shall submit its application for an amendment to the precise
plan then in effect to include such facility by July 31, 2002. Participant shall submit its
application for an amendment to the precise plan then in effect to include the restaurant by July
31, 2003.
Participant shall also be required to obtain all permits and approvals which may be
required in connection with any amendments to the precise plan approved as of the Effective
Date. Participant acknowledges and agrees that additional conditions of approval and/or
mitigation and monitoring measures may apply in connection with the approval of any
amendments to the precise plan approved as of the Effective Date (subject to Section 2.4) and
that Participant shall at all times comply with and implement such conditions and measures in
connection with the development of the Property.
Section 2.4 Permits and Approvals.
Participant and its successors and assigns shall be responsible for and promptly pay when
due all customary and reasonable fees and charges of Agency and City in connection with the
processing and consideration of the approval of amendments to the precise plan approved as of
the Effective Date, and any related approvals and permits, and any subsequent approvals for the
Project or the development of the Property. Participant shall be required to obtain all permits
and approvals and to comply with all conditions of approval and mitigation and monitoring
measures which may apply or be required in connection with any subsequent approvals for the
Project or development on the Property, including but not limited to amendments to the precise
plan approved as of the Effective Date; provided that no new mitigation and monitoring
measures shall be required in connection with the approval of amendments to such precise plan
so long as such precise plan is consistent with the Specific Plan and the Bay West Cove SEIR.
Participant, on behalf of itself and its successors and assigns, acknowledges and agrees
that execution of this Agreement by Agency does not constitute approval of building permits for
the construction of the Improvements on the Property, does not limit in any manner the
discretion of City in such approval process, and does not relieve Participant or its successors and
assigns from the obligation to obtain all necessary permits, including building permits, for the
construction of the Improvements on the Property. Participant and its successors and assigns
shall be responsible and promptly pay when due all customary and reasonable fees and charges
of Agency and City in connection with the processing and consideration of obtaining all permits,
including building permits, for the construction of the Improvements.
Section 2.5 Time for Completion of Construction.
Participant plans to Complete the construction of the Improvements on the Property in
accordance with the Schedule of Development. Agency acknowledges and agrees that neither
Participant nor its successors or assigns are affirmatively obligated to construct any
Improvements on the Property. However, notwithstanding the preceding sentence, Participant,
on behalf of itself and its successors and assigns, acknowledges and agrees that the penalties set
forth in Section 2.9 shall apply and be paid if the Improvements are not built or if construction of
the Improvements is not Completed within the time periods specified therein.
Section 2.6 Payment of Oyster Point Overpass Fees.
City has established a development fee ("Oyster Point Overpass Fees") by its Resolution
No. 71-84 approved by City on May 23, 1984, and as amended by Resolution No. 102-96
approved by City on June 26, 1996, and Resolution No. 152-96 approved by City on October 9,
1996, attached hereto collectively as Exhibit I. Participant, on behalf of itself and its successors
,, and assigns, acknowledges and agrees that the Oyster Point Overpass Fees are payable with
respect to the development of the Improvements on the Property and that Participant and its
successors and assigns shall pay the Oyster Point Overpass Fees as provided herein. The amount
of Oyster Point Overpass Fees payable by Participant and its successors and assigns for the
development of the Improvements on the Property shall be determined based on the application
of the formula in effect as of the time such Oyster Point Overpass Fees become due and payable.
Agency and Participant agree that the 10,000 square feet of retail/restaurant referenced in Section
2.2 will be treated as "General Office Building" for purposes of calculating the Oyster Point
Overpass Fees. The,parties further agree that no Oyster Point Overpass Fees shall be due and
payable with respect~to the childcare facility referenced in this Agreement, if any, to be
constructed on the Property pursuant to the terms of this Agreement.
The parties acknowledge and agree that Oyster Point Overpass Fees in the amount of
Two Million Nine Hundred Sixty Nine Thousand Seven Hundred Forty Eight Dollars
($2,969,748.00) (the "Oyster Point Overpass Fee Payment") have previously been paid by prior
owners of the Property with respect to proposed development on the Property. The parties
acknowledge and agree that said amount shall be credited against the Oyster Point Overpass Fees
due and payable by Participant and its successors and assigns with respect to the development of
the Improvements on the Property as set forth herein. The parties agree that the cumulative
Oyster Point Overpass Fees which are expected to be due and payable by Participant and its
successors and assigns (not accounting for the Oyster Point Overpass Fee Payment and assuming
full development of the Improvements as shown and/or referenced in the precise plan approved
as of the Effective Date, including the restaurant and childcare facility as described in Section
2.2) in connection with the construction of such Improvements on the Property total One Million
Two Hundred Two Thousand Six Hundred Forty Five Dollars ($1,202,645.00). However, the
parties acknowledge and agree that the foregoing amount of One Million Two Hundred Two
Thousand Six Hundred Forty Five Dollars ($1,202,645.00) is based on the application of the
formula for calculating the Oyster Point Overpass Fees now in effect as set forth in the
Resolutions attached as Exhibit I. Applying the Oyster Point Overpass Fee Payment to the
amount in Oyster Point Overpass Fees expected to be owed for the Improvements shown and/or
referenced in the precise plan approved as of the Effective Date calculated in accordance with
the formula in effect as of the Effective Date as stated above, City agrees to return to Participant
the sum of One Million Seven Hundred Sixty Seven Thousand One Hundred Three Dollars
($1,767,103.00) (the "Overpass Fee Refund Amount"), together with interest as hereinafter
provided, as soon as, and to the extent that, City determines in good faith that funds are
reasonably available to City to make such payments to Participant in full or on an installment
basis from time to time, but in all events no later than three (3) years after the Effective Date.
Any such installment payments shall be credited first against any interest accrued and unpaid
with respect to the Overpass Fee Refund Amount and then against the outstanding principal
balance of the Overpass Fee Refund Amount. The principal balance of the Overpass Fee Refund
Amount outstanding from time to time shall accrue interest for the benefit of Participant, during
the period from the Effective Date until such principal balance has been repaid in full, at a rate
equal to the Local Agency Investment Fund rate which City receives upon its invested fimds
from time to time during the applicable period.
The remaining portion of the Oyster Point Overpass Fee Payment (after deducting
_ therefrom the Overpass Fee Refund Amount described above) in the amount of One Million Two
Hundred Two Thousand Six Hundred Forty Five Dollars ($1,202,645.00) (the "Oyster Point
Overpass Fee Credit") shall be credited against the Oyster Point Overpass Fees due and payable
by Participant and its successors and assigns with respect to the development of the
Improvements on the Property as set forth herein. The parties acknowledge and agree that
additional Oyster Point Overpass Fees are expected to be required to be paid by Participant for
developing and constructing the Improvements on the Property as set forth herein.
The Oyster Point Overpass Fees shall be due and payable by Participant and its
successors and assigns at the time of the issuance of building permits for any Improvements on
the Property. As such fees become due and payable, the Oyster Point Overpass Fee Credit shall
be applied until such credit is extinguished. The Oyster Point Overpass Fee Credit shall be
applied and the Oyster Point Overpass Fees shall be due and payable at the time of the issuance
of building permits for the construction of any Improvements on the Property as to whichever
portions of the Property such permits are being issued. Participant and its successors and assigns
shall pay the Oyster Point Overpass Fees payable in connection with the construction of
Improvements on the Property once the Oyster Point Overpass Fee Credit is extinguished.
Participant acknowledges and agrees that to the extent the Oyster Point Overpass Fees due and
payable for the Improvements vary (including being increased) based on the application of the
formula in effect as of the time such fees become due and payable (at the time of issuance of
building permits for the Improvements), additional fees will be due for the Improvements other
than as set forth above, and Participant shall pay such additional fees for such Improvements at
the time of the issuance of building permits for such Improvements on the Property based on the
formula then in effect. In addition, Participant acknowledges and agrees that additional Oyster
Point Overpass Fees are expected to be required to be paid by Participant for developing and
constructing any Improvements on the Property which are not shown or referenced in the precise
plan approved as of the Effective Date, and Participant shall pay the Oyster Point Overpass Fees
applicable to such Improvements at the time such fees become due and payable (at the issuance
· of building permits for such Improvements), based on the application of the formula in effect as
of the time such fees become due and payable.
Section 2.7 Cost of Construction.
All cost of designing, developing and constructing the Improvements and in complying
with the Conditions of Approval and Mitigation and Monitoring Measures, and any other
conditions of approval or mitigation and monitoring measures in connection with any subsequent
approvals for development of the Property, including but not limited to amendments to the
precise plan approved as of the Effective Date, shall be borne solely by Participant and shall not
be an obligation of Agency or City.
Section 2.8 Other Approvals.
Participant has prepared, submitted, and obtained approval of the Specific Plan (approved
by City) and the Precise Plan (approved by Agency), which are attached hereto as Exhibit H and
Exhibit E, respectively. Participant hereby covenants on behalf of itself and its successors and
assigns that it shall, prior to issuance of any building permits, obtain all necessary permits and
.. approvals which may be required by any govemmental agency having jurisdiction over the
construction or development of the Improvements on the Property. Participant or its successors
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and assigns shall not commence any construction of the Improvements prior to issuance of
building permits.
Section 2.9 Penalty for Failure to Complete Construction of Improvements.
If Participant or its successors and assigns fail to build the Improvements or Complete the
construction of all Improvements on the Property within five (5) years from the Effective Date,
subject to delays permitted by Section 7.5, then Participant shall, immediately and without need
for submission of a demand from Agency, be obligated to pay Agency the sum of Forty Eight
Thousand Dollars ($48,000.00) per acre of the Property (for a maximum aggregate penalty of
approximately One Million One Hundred Four Thousand Dollars ($1,104,000.00) for the
Property (based on a calculation which assumes 23 acres)), allocated proportionately to each
legal parcel within the Property for which the Improvements on such parcel have not been
Completed.
Neither Participant nor its successors or assigns are affirmatively obligated to construct
any Improvements on the Property. Notwithstanding the preceding sentence, Participant, on
behalf of itself and its successors and assigns, acknowledges and agrees that the penalties set
forth in this Section shall apply and be paid if the Improvements are not built or construction of
the Improvements is not Completed within the time periods specified herein. Without limiting
any remedies of Agency as described in Section 7.4 for other defaults or nonperformance by
Participant, Agency agrees that the penalty sums set forth in this Section shall be its sole remedy
against Participant for failure to build the Improvements or to Complete construction of the
Improvements within the times specified in this Agreement.
Section2.10 Rights of Access.
In addition to those rights of access to and across the Property to which Agency and City
may be entitled by law, members of the staffs of Agency and City shall have the right of access
to the Property, without charge or fee, anytime, to inspect the work being performed on the
Property. City and Agency shall protect, indemnify, defend and hold Participant harmless from
and against any and all claims, damages, liabilities, losses, liens, costs and expenses, including
reasonable attorneys' fees and court costs, resulting from City or Agency's entry on to the
Property, including without limitation, repairing any and all damages to any portion of the
Property arising out of or related to City or Agency's entry on to the Property, except to the
extent any such claim, damage, liability, loss, lien, cost or expense arises out of or relates to the
active negligence, sole negligence or willful misconduct of Participant. The indemnification
agreement in this Section does not apply to standard building inspections by City requested by
Participant.
Section 2.11 Local, State and Federal Laws.
Participant shall carry out the construction of the Improvements in conformity with all
applicable local, state and federal laws and regulations, including all applicable local, federal and
state occupation, safety and health and labor standards.
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ARTICLE 3 CONSTRUCTION OF IMPROVEMENTS
Section 3.1 Construction Pursuant to Plans.
Unless modified by operation of Section 3.3, all works of construction and development
on the Property shall be done in accordance with the Construction Plans, the Specific Plan, the
Precise Plan, and any other plans or development approvals issued by Agency or City after the
Effective Date with respect to the Project or the development of the Property.
Section 3.2 Construction Plans.
As used herein "Construction Plans" mean all construction documentation upon which
Participant shall rely in building the Improvements, including but not limited to landscaping,
parking, and common and public areas, and including final architectural drawings, landscaping,
exterior lighting and signage plans and specifications, a description of materials to be used, final
elevations and building plans and specifications. The Construction Plans shall be based upon the
approved Specific Plan, the Precise Plan, and any other plans or development approvals issued
by Agency or City after the Effective Date with respect to the Project or the development of the
Property, and shall not materially deviate therefrom without the express written consent of
Agency and City.
SectiOn 3.3 Change in Construction Plans.
If Participant desires to make any material change in the Construction Plans, Participant
or its successors and assigns shall submit the proposed change to Agency and City for their
approval, which approval shall not be unreasonably withheld or delayed. If the Construction
Plans, as modified by any proposed change, conform to the requirements of this Agreement and
any development approvals including the Specific Plan and the Precise Plan, Agency and City
shall approve the change by notifying Participant in writing. Unless said proposed change is
rejected by Agency or City in writing within thirty (30) days, it shall be deemed approved. If
rejected within such time period, the previously approved Construction Plans shall continue to
remain in full force and effect.
Any change in the Construction Plans required in order to comply with applicable codes
shall be deemed approved, so long as such changes do not substantially nor materially change the
architecture, design, function, use, or other amenities of the Improvements as shown on the latest
approved Construction Plans.
Section 3.4 Progress of Construction.
During construction of the Improvements, Participant shall submit to Agency from time
to time, within ten (10) days following Agency's request therefor, but not more frequently than
monthly, a written report of the progress of the construction when and as requested by Agency.
The report shall be in such form and detail as to inform Agency fully of the status of
construction.
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...... Until construction of the Improvements has been Completed, Participant authorizes
Agency to have full access to all building inspection reports and other information at City to
assist Agency in reviewing the actual progress of construction. Participant shall allow Agency to
review construction documents and records maintained by Participant in the ordinary course of
the construction as may be reasonably requested by Agency.
Section 3.5 Certificate of Completion for Improvements.
Promptly after Completion of construction of the Improvements on any legal parcel in
accordance with the provisions of this Agreement and upon authorization by City of the
occupancy of such Improvements on a temporary basis, Agency will provide an instrument
("Certificate of Completion") so certifying provided that, at the time such certification is issued,
(i) the Improvements on such legal parcel have been Completed in a timely manner or the
penalties described in Section 2.9 have been paid if such Improvements were not Completed in a
timely manner, (ii) all fees, included but not limited to the Oyster Point Overpass Fees, have
been paid as applicable to such Improvements, and (iii) all other obligations of Participant
required to have been fulfilled by such date have been fulfilled with respect to that legal parcel
and Improvements for which a Certificate of Completion is being issued. Such Certificate of
Completion shall be a conclusive determination that the obligations undertaken herein by
Participant, and its successors and assigns, to construct the Improvements and the dates for the
Completion of construction thereof have been met, if applicable, subject to the obligation of
Participant to finalize such construction so as to obtain a certificate of occupancy for such
....... Improvements from City. If construction has been Completed on a legal parcel within the time
periods specified herein, the Certificate of Completion shall also state that no penalty is owed for
the development of the Improvements on such parcel or, if construction had not been Completed
on a legal parcel within the time periods specified herein and a penalty has been paid
accordingly, the Certificate of Completion shall state that the penalty has been paid. Such
Certificate of Completion shall be in such form as will enable it to be recorded among the
Official Records of San Mateo County, California. Such Certificate of Completion and
determination shall not constitute evidence of compliance with or satisfaction of any obligation
of Participant 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.
Participant may subdivide the Property after the Effective Date. No reconfiguration or
subdivision of the parcels within the Property, or allocation of any amounts due hereunder to a
legal parcel, shall affect the total amounts payable for the Project, including but not limited to the
Oyster Point Overpass Fees under Section 2.6, the Area Wide Traffic Mitigation Fee under
Section 3.8, or the potential penalties payable under Section 2.9. Once construction is
Completed on any legal parcel and a Certificate of Completion has been recorded, such legal
parcel and the owner thereof will not be subject to any obligations or penalties set forth in this
Agreement other than as set forth in Section 4.3, and except that Participant and its successors
and assigns shall comply with the Conditions of Approval and the Mitigation and Monitoring
Measures, and any conditions of approval and mitigation and monitoring measures required in
connection with subsequent approvals for the Project or the development of the Property, in the
operation of any businesses on the Property, and shall be responsible for taking all necessary
11
steps in connection with the development of the Improvements to obtain a certificate of
occupancy for such Improvements from City.
Section 3.6 Construction Ronds.
Prior to the cc~mmencement of construction of the Improvements, Participant shall deliver
to Agency copies of l~abor and material bonds or performance bonds, if any, required by
Participant's lenders, which bonds shall be issued by a reputable insurance company licensed to
do business in Califomia. Said bonds shall name Agency as co-obligee.
Section 3.7 Implementation of Mitigation Measures and Conditions of Approval.
The Conditions of Approval and Mitigation and Monitoring Measures shall govern the
development of the Property and shall be implemented by Participant and its successors and
assigns. In carrying out the construction of the Improvements, it shall be the sole responsibility
of Participant to implement, at its sole cost and expense, the Conditions of Approval and
Mitigation and Monitoring Measures, and any conditions of approval or mitigation and
monitoring measures required by Agency or City in connection with subsequent approvals for
the Project or the development of the Property, including but not limited to the approval of the
any amendments to the precise plan approved as of the Effective Date.
The allocation of responsibility for performance of the Mitigation and Monitoring
Me.asures (including but not limited to the paYment of any costs) among Participant and other
owners of property to which sUCh Mitigation and Monitoring Measures apply shall be allocated
based on the use of and demand caused by such property and the Improvements thereon giving
rise to the need for the development of such Mitigation and Monitoring Measures, and each such
property owner shall be responsible for such performance only to the extent of such allocation.
Notwithstanding the preceding sentence, Participant, on behalf of itself and its successors and
assigns, agrees that if Participant begins to develop its Improvements or any portion thereof prior
to any such other property owners and if the full and complete implementation of a Mitigation
and Monitoring Measure is applicable to or necessary because of such development, Participant
shall be responsible for fully carrying out such Mitigation and Monitoring Measure, including
the payment of any costs.
In the event that a property owner, including Participant, implements or fulfills a
Mitigation and Monitoring Measure for which another property owner is or becomes partially
responsible because of development on such other owner's property, then the implementing
property owner shall be entitled (i) to be reimbursed by such other property owner for its
appropriate share of the costs incurred by the implementing property owner in implementing or
fulfilling the Mitigation and Monitoring Measure; and (ii) to enforce such right of reimbursement
by an action to recover such appropriate share or by other legal action. The basis for allocation
of the cost of implementing a Mitigation and Monitoring Measure shall be the basis set forth
above in this Section. Agency agrees to include the provisions of this paragraph in any owner
participation agreement entered into with Hines Oyster Point, LLC. However, nothing in the
preceding sentences of this paragraph shall in any way obligate Agency to enforce the
reimbursement by a property owner to Participant or to take any action against a property owner
on account of this paragraph.
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Participant acknowledges, on behalf of itself and its successors and assigns, that
additional conditions of approval or mitigation and monitoring measures (including but not
limited to the payment of any costs or off-site improvements) may be required by Agency or City
as part of subsequent project approvals with respect to the Project or the development of the
Property, and agrees that said additional conditions of approval and/or mitigation and monitoring
measures shall govern development of the Property and shall be implemented by the Participant
and its successors and assigns.
Section 3.8 Area Wide Traffic Mitigation Fee.
Participant acknowledges that City is in the process of developing and considering an
ordinance for a development fee addressing area wide traffic mitigation in the area in which the
Property is located. Participant agrees, on behalf of itself and its successors and assigns, that if
such ordinance is adopted Participant will be responsible for the payment of the development
fees which pertain to the development of the Improvements on the Property, as specified in the
ordinance, subject to the following limitations: (i) the development fee payable with respect to
the Improvements on the Property shall not exceed an amount equal to two (2) times the Oyster
Point Overpass Fees payable with respect to such Improvements, calculated in accordance with
the formula described in Section 2.6 (without consideration or application of the Oyster Point
Overpass Fee Credit, which Shall not apply to the fees described in this Section); (ii) such
development fee shall be payable with respect to the Improvements to be constructed at the times
specified in the ordinance, but no earlier than the date that a building permit is obtained by
Participant or its successors or assigns with respect to such Improvements; and (iii) Participant
will under no circumstances have an obligation to pay any such development fees with respect to
improvements outside the Property.
Section 3.9 Childcare Facility.
The Improvements on the Property shall include a day childcare facility adequate to serve
the needs of at least fiftY (50) children, provided that (i) the Regional Water Quality Control ~
Board ("RWQCB") has given its prior written approval pursuant to Section 3.1.3 of that certain
Covenant and Environmental Restriction between Bay West and RWQCB dated January 26,
1998 ("Restriction") attached hereto as Exhibit J or has waived or otherwise released in writing
Participant and the Property from the portion of the Restriction prohibiting the use of the
Property for schools for persons under 21 years of age; and (ii) there is no litigation or
substantial threat of litigation against Participant or its successors and assigns regarding the
construction of such childcare facility on the Property. Participant shall be responsible for
seeking to obtain the approval, or removal or waiver of that portion of the Restriction concerning
the use of the Property for schools, from the RWQCB as necessary to permit the construction
and operation of the child care facility, and shall make all reasonable efforts to obtain such
approval, or removal or waiver. Agency shall cooperate with such efforts.
If Participant is unable to obtain the written approval from the RWQCB for the
. , construction of a childcare facility or the removal or waiver of that portion of the Restriction
concerning the use of the Property for schools for persons under 21 years of age, or if Participant
maintains that there is litigation or a substantial threat of litigation against Participant or its
successors and assigns regarding the construction of such childcare facility on the Property, then
13
Participant shall notify Agency in writing that it is unable to construct such facility and the
reasons therefor. If Participant maintains that it is unable to construct the facility because there
is litigation or a substantial threat of litigation against Participant regarding the construction of
such facility, Agency shall have the right, within thirty (30) days after receipt of such written
notice, to make the final determination regarding whether there is litigation or a substantial threat
of litigation against Participant regarding the construction of the facility such that Participant
should be excused from constructing the facility on that basis, but Agency shall act reasonably in
making that determination.
If Participant is unable to construct a childcare facility in accordance with the above
provisions of this Section, then Participant shall, within sixty (60) days of its written notification
to Agency of its determination that it is unable to construct the childcare facility as set forth
above in this Section, pay a fair share amount for a childcare facility within City, which amount
shall be determined pursuant to the study to be prepared by City to establish such fee.
If a childcare facility is constructed pursuant to this Agreement, such facility shall be
constructed in accordance with the Specific Plan and the Precise Plan. The childcare facility
shall also be constructed within the time reflected in the Schedule of Development and shall at
all times comply with the Conditions of Approval and any conditions of approval in connection
with subsequent approvals for the Project or development on the Property including but not
limited to any approval of any amendments to the precise plan approved as of the Effective Date.
Section 3.10 Off-Site Pump Station.
The parties acknowledge that Section 14.2.7 of the Mitigation and Monitoring Program
will require payment by Participant toward the costs for the improvement of a pump station and
the replacement of a sewer main, as further specified therein. The parties acknowledge that it is
estimated that Participant's share of the costs for such improvements will total One Hundred
Fifty Thousand Dollars ($150,000.00); however, such amount is only an estimate and the parties
acknowledge and agree that the actual amount to be paid by Participant and its successors and
assigns may be greater or lesser. Further, nothing in this Section shall limit the provisions of
Section 3.7.
Section 3.11 Transportation Demand Management Reporting Requirements.
The parties acknowledge that certain of the Mitigation and Monitoring Measures
including but not necessarily limited to Sections 6.4.2, 6.4.3, 6.4.4, 6.4.5 and 7.2.3 of the
Mitigation and Monitoring Program will require the preparation and submittal of Traffic Demand
Management (TDM) reports. Without limiting anything in connection with the approvals of the
Project including the Mitigation and Monitoring Measures concerning the TDM plan,
Participant, on behalf of itself and its successors and assigns, agrees that the provisions contained
in Exhibit K attached hereto shall govern TDM reporting.
14
....... Section 3.12 Public Art.
Participant, on behalf of itself and its successors and assigns, agrees that it shall install
and provide artwork on public display on the Property in the amount of at least Two Hundred
Thousand Dollars ($200,000.00), which artwork shall be installed on the Property as follows:
artwork in the amount of at least One Hundred Thousand Dollars ($100,000.00) shall be installed
within three (3) years of the Effective Date, and, if applicable because the total sum of Two
Hundred Thousand Dollars ($200,000.00) in artwork has not been installed within three (3) years
of the Effective Date, additional artwork in the remaining sum shall be installed within the next
two (2) years (i.e., within five (5) years of the Effective Date). The artwork to be installed and
provided by Participant pursuant to this Section shall first be approved by Agency, which
approval shall not be unreasonably withheld.
Section 3.13 Equal Opportunity.
During the construction of the Improvements on the Property, Participant and its
successors and assigns shall not discriminate on the basis of race, religion, sex, or national origin
in the hiring, firing, promoting or demoting of any person engaged in the construction work and
Participant shall direct its contractors and subcontractors to refrain from discrimination on such
basis.
ARTICLE 4 USE OF THE PROPERTY
Section 4.1 Uses.
Participant covenants and agrees for itself and its successors and its assigns, that during
construction of the Improvements and thereafter, Participant, and such successors and assigns,
shall use the Property solely for the purposes authorized in the Specific Plan and the Precise
Plan. Participant further covenants and agrees for itself and its successors and its assigns, that
the Property shall be subject to the provisions of the Redevelopment Plan for such period of time
as said plan is in effect. Participant is expressly prohibited from using the Property for any uses
prohibited by applicable City zoning ordinances or regulations, or by the Redevelopment Plan.
Participant shall comply with all Mitigation and Monitoring Measures set forth in the Mitigation
and Monitoring Program and the Conditions of Approval, and any future conditions of approval
and mitigation and monitoring measures adopted after the Effective Date in connection with
development approvals for the Property or the Project, including but not limited to approvals of
amendments to the precise plan approved as of the Effective Date.
Section 4.2 Obligation to Refrain from Discrimination.
Participant shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion,
creed, sex, marital status, ancestry, or national original of any person. Participant herein
covenants by and for itself and its successors and assigns, and all persons claiming under or
through it, and this Agreement is made and accepted upon and subject to the conditions that there
shall be no discrimination against or segregation of any person or of a group of persons on
15
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 Property, or any
portion thereof, nor shall Participant or any person claiming under or through it 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 Property. The foregoing provisions shall be binding upon any subcontracting
parties, successors, assigns and other transferees under this Agreement.
All deeds, leases or contracts for the sale, lease, sublease, or other transfer of the Property
or any portion thereof made or entered into by Participant, its successors or assigns, shall contain
therein language in substantially the following form:
(a) In Deeds:
"The 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 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 herein conveyed, nor shall the grantee or
any person claiming under or through it 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 covenants shall mn with the land."
(b) In Leases:
"The lessee herein covenants by and for itself and its successors and assigns, and all
persons claiming under or through it, and this lease is made and accepted upon and
subject to the conditions 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 property herein leased nor shall the lessee or any person
claiming under or through it 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 property herein
leased."
(c) In Contracts:
"The transferee herein covenants by and for itself and its successors and assigns, and all
persons claiming under or through it, and this contract is made and accepted upon and
subject to the conditions 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 property herein transferred nor shall the transferee or any
person claiming under or through it establish or permit any such practice or practices of
16
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein
transferred. The foregoing provisions shall be binding upon any subcontracting parties,
successors, assigns and other transferees under the contract."
Section 4.3 ~Effect and Duratior~ of Covenants.
?
All of the terms, covenants, agreements and conditions set forth in this Agreement shall
cease and terminate as to any portion of the Property comprising a legal parcel upon recordation
of the Certificate of Completion for that parcel, excepting only the provisions of Section 4.1
(relating to uses), which shall remain in effect as specified therein, and Section 4.2 (relating to
nondiscrimination), which shall remain in effect in perpetuity. Notwithstanding anything set
forth in this Section or elsewhere in this Agreement, Participant agrees that it and its successors
and assigns shall comply with the Conditions of Approval and the Mitigation and Monitoring
Measures, and any future conditions of approval or mitigation and monitoring measures, in the
operation of any businesses on the Property, insofar as the provisions of such measures are
applicable beyond the time of the Completion of the Improvements; and Participant further
agrees that it shall be responsible for taking all necessary steps in connection with the
development of the Improvements to obtain a certificate of occupancy for such Improvements
from City.
ARTICLE 5 CHANGES IN DEVELOPER
Section 5.1 Identity °f Participant:
Slough BTC is a Delaware limited liability company.
Section 5.2 Changes Only Pursuant To This Agreement.
The qualifications, experience, financial capability and expertise of Slough BTC are of
particular concern to Agency. It is because of these qualifications, experience, financial
capability and expertise that Agency has entered into this Agreement. No voluntary or
involuntary assignee or successor in interest to Participant shall acquire any rights or powers
under this Agreement, except as hereinafter provided.
Section 5.3 Transfer by Participant.
Prior to the issuance by Agency of a Certificate of Completion for the Improvements on a
portion of the Property comprising a legal parcel, Participant shall not voluntarily or
involuntarily make or attempt any total or partial sale, transfer, conveyance, assignment or lease
("Transfer") of the whole or any part of such portion of the Property or the Improvements
thereon, or this Agreement, without the prior written approval of Agency. For purposes of the
preceding sentence, Transfer shall not include (i) the giving of a security interest (including a
deed of trust, mortgage, assignment of leases, or other customary security arrangement) in the
Property to a lender to secure financing or refinancing on the Property or any portion thereof in
connection with the acquisition of the Property or the development, construction and leasing of
17
the Improvements thereon, the foreclosure of any such security interest (whether by private sale,
judicial foreclosure, deed in lieu of foreclosure or otherwise) or the purchase of any portion of
the Property at a foreclosure sale (so long as any such transferee acquires the Property, or portion
thereof as applicable, subject to the terms and obligations of this Agreement with respect to such
portion of the Property transferred); or (ii) any lease of any Improvements on the Property to a
lessee who will occupy such Improvements after Completion thereof, provided, however, that no
such lease shall relieve Participant of any of its covenants, debts, duties, obligations or liabilities
under this Agreement. The foregoing restrictions on Transfer without Agency approval shall not
be deemed to prevent the recordation of security instruments in connection with the acquisition
of the Property or the development, construction and leasing of the Improvements thereon, or the
granting of temporary easements or permits to facilitate the development, conveyance or
dedication of the Property, or any portion thereof. If Participant proposes a Transfer, the
proposed transferee shall have the qualifications and financial resources necessary and adequate
as may be reasonably determined by Agency to fulfill the obligations undertaken in this
Agreement by Participant with respect to the portion of the Property proposed to be transferred,
including the payment of any fees and penalties as may be required hereunder. There shall be
submitted to Agency for review all instruments and other legal documents proposed to effect any
such Transfer and, if approved by Agency, its approval shall be indicated to Participant in
writing.
After recordation of the Certificate of Completion for the Improvements on a portion of
the Property comprising a legal parcel, no restriction or covenant set forth in this Agreement,
shall affect or prohibit a Transfer of such portion of the Property or Improvements thereon, or
rights under this Agreement respecting same, except as provided in Section 4.3 and this Article
5, and no Agency approval shall be needed for any such Transfer. The Agency approval
required by this Section shall apply only to a Transfer of the whole or any part of the Property
before the issuance of the Certificate of Completion for such portion of the Property being
transferred and shall not in any way limit Participant's right to market the Property or to enter
into an agreement to Transfer the Property or any portion thereof so long as the Transfer follows
the issuance of the Certificate of Completion for such portion of the Property being transferred or
Agency consents to such Transfer as provided in this Article 5. Notwithstanding anything set
forth in this paragraph, Participant agrees that it and its successors and assigns shall comply with
the Conditions of Approval and the Mitigation and Monitoring Measures, and any conditions of
approval and mitigation and monitoring measures required in connection with subsequent
approvals for the Project or the development of the Property, in the operation of any businesses
on the Property.
Section 5.4 Transferee Subject to All Conditions of Agreement.
Any transferee of the Property or Improvements, or portions thereof, or rights under this
Agreement, pursuant to a Transfer prior to the issuance and recordation of the Certificate of
Completion for that portion of the Property transferred shall be subject to all of the Conditions of
Approval, Mitigation and Monitoring Measures, conditions of approval and mitigation and
monitoring measures required in connection with future approvals for the Project or the
development of the Property, covenants, obligations and restrictions of this Agreement which
pertain to such portion of the Property and Improvements transferred. Any transferee pursuant to
18
a Transfer, by instrument in writing satisfactory to Agency and in a form recordable among the
Official Records of San Mateo County, California, for itself and its successors and assigns, shall
expressly assume all of the covenants and obligations of Participant under this Agreement
pertaining to the Property and the Improvements, or portions thereof, which are being transferred
and agree to be subject to all of the conditions and restrictions to which Participant is subject as
they pertain to such Property and the Improvements or applicable portion thereof, and only upon
such assumption and agreement shall the transferor no longer have such covenants, obligations,
conditions and restrictions with respect to the property and improvements being transferred.
Section 5.5 Exception to Prohibition Against Transfer.
Participant may at any time, without limitation, and without the necessity of approval
from Agency, make a Transfer of the Property or Improvements or any part thereof, or rights and
obligations under this Agreement, or portion thereof, to: (i) a subsidiary, affiliate, parent or other
entity which controls, is controlled by or is under common control with Participant, (ii) any
member or partner of Participant or a subsidiary or affiliate of such member or partner, or (iii) a
successor or successors to Participant by merger, consolidation, non-bankruptcy reorganization,
or government action. As used in this Section, "control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management or policies, whether
through the ownership of voting securities, partnership interest, contract or otherwise.
ARTICLE 6 SECURED FINANCING AND RIGHTS OF HOLDERS
Section 6.1 No Encumbrances Except for Acquisition and 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 or the Improvements
before a Certificate of Completion has been issued by Agency and without Agency approval, but
only for the purpose of securing loans or funds (and customary obligations related thereto) which
loans or funds Participant agrees shall be used to finance or refinance the Property or any portion
thereof in connection with the acquisition of the Property or for the development and
construction of the Improvements and for any other expenditures reasonably necessary and
appropriate to develop, lease and operate the Property in accordance with this Agreement.
However, the failure of Participant to observe such restriction shall not affect the validity or
enforceability of any such security instruments or the rights given hereunder to the holders of
such security instruments. Participant shall promptly notify Agency and the City Clerk in
writing 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 or the
Improvements and the identity and mailing address of the holder of any such mortgage, deed of
trust, sale and lease-back or other financing, conveyance, encumbrance or lien, and shall notify
Agency of any changes thereof. The words "mortgage" and "deed of trust" as used herein
include all other customary modes of financing real estate acquisition, construction, and land
development.
19
Section 6.2 Holder Not Obligated to Construct.
Except as otherwise provided in Article 5 and Section 6.3, the holder of any mortgage,
deed of trust or other security interest authorized by this Agreement is not obligated to construct
or Complete any of the Improvements or to guarantee such construction or Completion, or to
perform any of the other obligations of Participant. 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.
Section 6.3 Notice of Default and Right to Cure.
Whenever Agency pursuant to its rights set forth in this Agreement deliv?rs any notice or
demand (including a notice of default) required under this Agreement to Participant with respect
to the commencement, Completion, or cessation of the construction of the Improvements or
other obligations of Participant hereunder, Agency shall at the same time deliver to each holder
(of which Agency and the City Clerk have been notified in accordance with Section 6.1) of any
mortgage, deed of trust or other security interest authorized by this Agreement a copy of such
notice or demand. Each such holder shall (insofar as the rights of Agency are concerned) have
the right, but not the obligation, at its option, within ninety (90) days after service of the notice,
to elect to cure any default by Participant in connection with the Completion of construction of
the Improvements under this Agreement and to add the'cost thereof to the secured debt and the
lien evidenced by its security instrument. A holder who chooses to exercise its right to cure a
default shall first notify Agency in writing of its intent to exercise such right prior to
commencing to cure such default and thereafter shall complete such cure within a reasonable
time. If such cure is completed Agency shall not terminate this Agreement on account of such
default by Participant, notwithstanding Section 7.4.
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 Participant's obligations to Agency relating to such
Improvements and Property, or portion thereof, under this Agreement. In connection with such
assumption, the holder must agree to Complete, in the manner provided in this Agreement, the
Improvements and submit evidence reasonably satisfactory to Agency that it has the
developmental capability on staff or retainer and the financial responsibility necessary to perform
such obligations. Any such holder which properly Completes such Improvements pursuant to
this paragraph and has assumed all rights and obligations of Participant under this Agreement
with respect to the portion of the Property covered by the holder's lien (and/or that portion of the
Property acquired by such holder pursuant to foreclosure of such lien, deed in lieu of foreclosure
or other means) shall be entitled, upon written request made to Agency, to a Certificate of
Completion from Agency for such Improvements.
In the event that a holder has assumed Participant's obligations hereunder, such holder
shall be liable for the fulfillment of such obligations until such time as such holder transfers the
Property, or portion thereof, to another person or entity, but only if such transferee assumes all of
the obligations under this Agreement with respect to that portion of the Property being
20
transferred. After a holder has acquired the fee interest in the Property, or any portion thereof,
any transfer and/or assignment by a holder of the Property, or portion thereof as applicable, or
Improvements, or this Agreement, shall require Agency approval, which approval shall not be
unreasonably withheld if the proposed transferee has the qualifications and financial resources
necessary and adequate as may be reasonably determined by Agency to fulfill the obligations
undertaken in this Agreement by Participant with respect to the portion of the Property proposed
to be transferred, including the payment of any fees and penalties as may be required hereunder.
Section 6.4 Failure of Holder to Complete Improvements.
In any case where, six (6) months after default by Participant in connection with the
Completion of construction of the Improvements under this Agreement (or such longer period of
time as shall be reasonably necessary for such holder to obtain possession of that portion of the
Property subject to its lien, not to exceed one (1) year), the holder of record of any mortgage,
deed of trust or other security instrument creating a lien or encumbrance upon the Property or the
Improvements, having first exercised its option to construct, has not proceeded diligently with
construction, Agency shall be afforded those rights against such holder which it would otherwise
have against Participant under this Agreement.
Section 6.5 Holder to be Notified.
Participant, for itself, its successors and assigns hereby warrants and agrees that each
term contained herein dealing with secured financing and rights of holders shall be either
inserted into the relevant deed of trust or mortgage or be acknowledged by the holder prior to or
at the same time of its coming into any security right or interest in the Property or the
Improvements.
Section 6.6 Modifications to Agreement.
Agency shall not unreasonably withhold its consent to modifications of this Agreement
requested by Participant's lender or lenders provided such modifications do not materially alter
Agency's substantive rights and obligations under this Agreement.
ARTICLE 7 DEFAULTS, REMEDIES AND TERMINATION
Section 7.1 Defaults - General.
Failure or delay by either party to perform any term or provision of this Agreement
constitutes a default under this Agreement. The party who so fails or delays must commence to
cure or cure such failure or delay as more specifically provided in Section 7.4, and shall
complete such cure with reasonable diligence and during any period of curing shall not be in
default.
The non-defaulting party shall give written notice of default to the party in default,
specifying the default complained of by the injured party. Failure or delay in giving such notice
shall not constitute a waiver of any default, nor shall it change the time of default.
21
No default by Participant, or any of its successors or assigns hereunder, in the
performance of obligations relating to a legal parcel within the Property shall affect the rights or
entitlements of any owner of another legal parcel within the Property with respect to such other
parcel.
Section 7.2 .... Rights and Remedies are Cumulative.
Except as otherwise expressly stated in this Agreement, the fights and remedies of the
parties are cumulative, and the exercise by either party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same time or different times, of any other rights or
remedies for the same default or any other default by the other party.
Section 7.3 Inaction Not a Waiver of Default.
Except as expressly provided in this Agreement to the contrary, any failures or delays by
either party in asserting any of its fights and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies, or deprive such party of its rights to
institute and maintain any actions or proceedings which it may deem necessary to protect, assert
or enforce any such rights or remedies.
Any failure by Agency to enforce any of its remedies hereunder in any particular instance
shall not constitute a waiver by Agency of its right to subsequently enforce its rights in the event
of a s. ubsequent default.
Section 7.4 Remedies.
If a party defaults with regard to the performance of any of the obligations under this
Agreement, the non-defaulting party shall serve written notice of such default upon the
defaulting party. For monetary defaults, if the default is not cured within forty-five (45) days
after service of the notice ~f default, or for non-monetary defaults, if the default is not
commenced to be cured within forty-five (45) days after service of the notice of default and is
not cured promptly in a continuous and diligent manner within a reasonable period of time after
commencement of the cure, then (i) the non-defaulting party may terminate this Agreement by
notice to the other party; and/or (ii) the non-defaulting party, at its option, may commence an
action for specific performance of the terms of this Agreement pertaining to such default. In
addition, the parties agree that for defaults by Participant concerning any financial obligations
under this Agreement, including but not limited to the payment of the fees and penalties set forth
in Sections 2.6, 2.9 and 3.8 and the payment of prevailing wages as referenced in Section 9.10,
Agency shall be afforded all rights at law and in equity including but not limited to damages.
The parties further agree that for defaults by Participant not concerning financial obligations
under this Agreement, and notwithstanding the general remedies outlined above, Agency's
remedies for such defaults shall be limited to termination of this Agreement. Without limiting
any remedies of Agency as described in this Section for other defaults or nonperformance as
described above, Agency agrees that the penalty sums set forth in Section 2.9 shall be its sole
remedy against Participant for failure to build the Improvements or Complete construction of the
Improvements within the times specified in this Agreement.
22
If Agency elects to terminate this Agreement based on any default by Participant, Agency
shall be released from any and all further obligations to Participant under the terms of this
Agreement and this Agreement shall not operate to prevent or preclude Agency from carrying
out the Redevelopment Plan including the exercise by Agency of any rights of eminent domain
as may be applicable and permitted by law.
Exercise of the remedies described herein shall affect and be enforceable against only the
portion of the Property or owner of such property claimed to be in default. Participant
acknowledges and agrees that nothing contained in this Section or elsewhere in this Agreement
shall impair or limit any rights or remedies City may have against Participant for any default or
nonperformance, or other action or inaction, by Participant.
Section 7.5 Excuse for Nonperformance.
Participant and Agency shall be excused from performing any of their obligations and
undertakings provided in this Agreement, except any obligation to pay any sums of money under
the applicable provisions hereof, in the event and so long as the performance of any such
obligation is prevented or delayed, retarded or hindered by act of God, fire, earthquake, floods,
explosion, actions of the elements, war, invasion, insurrection, riot, mob violence, sabotage,
inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the
open market, failure of transportation, strikes, lockouts, action of labor unions, condemnation,
requisition, laws, orders of governmental or civil or military or naval authorities, or any other
cause, whether similar or dissimilar to the foregoing, not within the control of the party claiming
the extension of time to perform. The party claiming such extension shall send written notice of
the claimed extension to the other party within thirty (30) days from the commencement of the
cause entitling the party to the extension.
ARTICLE 8 INDEMNITY
Section 8.1 Hold Harmless,
Participant and its successors and assigns shall defend and hold harmless Agency, City,
and their elective and appointive boards, commissions, officers, agents and employees from and
against any or all loss, liability, expense, claim, costs, suits or actions at law or in equity, and
damages of every kind, nature and description (including but not limited to attorneys' fees and
court costs; with counsel reasonably acceptable to Agency and City) directly or indirectly arising
from, or alleged to arise from, Participant's performance of its rights and obligations under this
Agreement or the rights granted to Participant under this Agreement, whether or not any
insurance policies shall have been determined to be applicable to any such damages, claims,
costs or expenses.
It is further agreed that Agency and City do not, and shall not, waive any rights against
Participant which they may have by reason of this hold harmless agreement because of the
acceptance by Agency, or the deposit with Agency by Participant, of any of the insurance
policies described in this Agreement.
23
ARTICLE 9 GENERAL PROVISIONS
Section 9.1 Notices, Demands and Communications Between the Parties.
Any written notice, demand, communication or payment of one party to the other shall be
served by personal delivery, nationally recognized ovemight courier or by registered or certified
mail, postage prepaid, return receipt requested, addressed to the parties as follows:
Agency: CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY
400 Grand Avenue
South San Francisco, CA 94080
ATTN: Michael A. Wilson, Executive Director
cc: Meyers, Nave, Riback, Silver & Wilson
777 Davis Street, Suite 300
San Leandro, CA 94577
ATTN: Steven T. Mattas, Agency's Counsel
Participant: SLOUGH BTC, LLC
33 West Monroe Street, Suite 2000
Chicago, IL 60603
ATTN: William Rogalla
cc: Folger Levin & Kahn LLP
Embarcadero Center West
275 Battery Street, 23rd Floor
San Francisco, CA 94111
ATTN: Donald E. Kelley, Jr., Participant's Counsel
All notices, demands, communication or payments shall be deemed received on the date
which is three (3) business days after the date of deposit into the U.S. mail if sent by registered
or certified mail, when delivered if delivered personally, or one (1) business day after the date of
delivery to a nationally recognized overnight courier for overnight delivery if sent by overnight
courier. All notices, demands, communications or payments shall be sent to the addresses above
or to such other addresses as the affected party may from time to time designate. The failure of
either party to send a notice, demand, communication or payment to the "cc's" listed above shall
not invalidate any such notice, demand, communication or payment sent by such party.
Section 9.2 Conflicts of Interest.
No member, official or employee of Agency shall have any direct or indirect interest in
this Agreement, nor participate in any decision relating to the Agreement which is prohibited by
law.
24
Section 9.3 Warranty Against Payment of Consideration for Agreement.
Participant warrants that it has not paid or given, and will not pay or give, to any third
person, any money or other consideration for obtaining this Agreement, other than normal costs
of conducting business and costs of professional services such as architects, engineers and
attorneys.
Section 9.4 Nonliability of Agency and City Officials.
No member, official or employee of Agency or City shall personally be liable to
Participant, or any assignee or successor of Participant, in the event of any default or breach by
Agency or for any amount which may become due to Participant on any obligation under the
terms of this Agreement.
Section 9.5 Litigation.
In the event of any legal proceeding arising out of any controversy, claim or dispute
between the parties related to this Agreement or the improvement and development of the
Property, the prevailing party shall be entitled to recover from the non-prevailing party all of its
reasonable costs and expenses incurred in the legal proceedings, including but not limited to
attorneys' fees and court costs.
Section 9.6 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.
Section 9.7 Counterparts; Entire Agreement, Waivers and Amendments.
This Agreement may be executed in duplicate originals, each of which is deemed to be an
original. This Agreement, together with attached Exhibits A to M, constitutes the entire
understanding and agreement of the parties respecting the subject matter hereof. This Agreement
integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes
all negotiations or previous agreements between the parties with respect to all or any part of the
subject matter hereof. This Agreement supersedes and replaces all provisions of the Bay West
Agreement and Amendment No. 1 to the Bay West Agreement with respect to the Property. Any
waiver or modification of any provision of this Agreement must be in writing and signed by the
party to be charged.
Section 9.8 Applicable Law.
The laws of the State of California shall govern the interpretation and enforcement of this
.- Agreement. Any action to enforce or interpret this Agreement must be filed in the Superior
Court of the County of San Mateo, State of California.
25
Section 9.9 Liability Insurance.
(a) Participant and its successors and assigns shall maintain in force during the
construction of the Improvements and through the issuance of the Certificate of
Completion public liability and property damage insurance, including personal
injury, contractual, and owned and non-owned automobiles, with such coverage
and limits as may be reasonably requested by Agency and City from time to time,
but in no event for less than the sum of Three Million Dollars ($3,000,000.00)
combined single limit.
(b) Public liability insurance policy or policies shall name Agency and City as
additional insureds, and any policy or policies shall contain cross-liability
endorsements. An endorsement shall be provided which states the coverage is
primary insurance and that no other insurance held by Agency or City will be
called upon to contribute to a loss under this coverage.
(c) A certificate evidencing such insurance coverage or coverages shall be filed with
Agency and City prior to commencement of construction (or any work related
thereto) on the Property, but in no event later than thirty (30) days after the
Effective Date, and said certificate shall provide that such insurance coverage will
not be reduced without the insurer endeavoring to give at least thirty (30) days'
prior written notice to Agency and City and will not be cancelled without the
insurer endeavoring to give at least ten (10) days' prior written notice to Agency
and City. In the event of a reduction or cancellation in coverage, Participant shall,
prior to such reduction or cancellation, provide at least thirty (30) days' prior
written notice to Agency and City, regardless of any notification by an insurer.
(d) If such coverage is canceled or reduced, Participant and its successors and assigns
shall, within fifteen (15) days after receipt of written notice from Agency or City
regarding such cancellation or reduction in coverage, but in no event later than the
effective date of cancellation or reduction, file with Agency and City a certificate
showing that the required insurance has been reinstated or provided through
another insurance company or companies. Upon failure to so file such certificate,
Agency or City may, without further notice and at its option, procure such
insurance coverage at Participant's expense, and Participant shall promptly
reimburse Agency or City, as the case may be, for such expense upon receipt of
billing from Agency or City.
Section 9.10 Prevailing Wage Requirements.
Participant and its successors and assigns shall comply with Agency's prevailing wage
policy adopted by Resolution No. 15-97 adopted on November 12, 1997, attached hereto as
Exhibit L, regarding the payment of prevailing wages in the development and construction of the
Improvements on the Property.
26
Section 9.11 Exhibits.
The following Exhibits attached hereto are incorporated herein by this reference.
Conditions of Approval for Specific Plan
Conditions of Approval for Precise Plan
Improvements
Mitigation and Monitoring Program
Precise Plan
Property Description
Schedule of Development
Specific Plan
Oyster Point Overpass Fees Resolutions
Covenant and Environmental Restriction
Transportation Demand Management Reporting Requirements
Prevailing Wage Policy
Easement Agreement
27¸
Section 9.12 Recordation.
Agency is authorized to record this Agreement and any amendments thereto in the
official records of San Mateo County, California.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the
day and year first above written.
CITY OF SOUTH SAN FRANCISCO
REDEVELOPMENT AGENCY
(Agency)
Chairperson
ATTEST:
Secretary
APPROVED AS TO FORM:
Agency's Counsel
SLOUGH BTC, LLC,
(Participant)
By: Slough Estates USA, Inc.
Its: Manager
By:
Its: Vice President
APPROVED AS TO FORM:
Participant's Counsel
F:\WPD\Mnrsw\405\097\finalsloughopaclean..doc
28
Exhibit A
CONDITIONS OF APPROVAI J FOR SPECIFIC PLAN
Exhibit B
CONDITIONS OF APPROVAL FOR PRECISE PLAN
Exhibit C
IMPROVEMENTS
Participant shall, at its own cost and expense, provide or cause to be provided on the
Property the improvements as shown and in the manner described in the Specific Plan and the
Precise Plan, which improvements shall constitute the Improvements as defined herein. The
Improvements shall be consistent and in conformity with the Specific Plan, the Precise Plan, and
the Construction Plans.
Generally, and without limiting the preceding paragraph, the Improvements include a
research and office development consisting of nine (9) buildings comprising up to 582,000
square feet. The Improvements include (and included in the 582,000 square feet) approximately
5,000 square feet of retail space; an approximately 5,000 square foot free standing restaurant;
approximately 105,000 square feet of office; approximately 459,000 square feet of research and
development; and related on-site parking and parking structures.
The Improvements also include a linear park and public access trail along the bay
frontage consistent with the Specific Plan, the Precise Plan and BCDC standards.
Ifa childcare facility is to be constructed on the Property pursuant to the terms of this
Agreement, then the term "Improvements" as used herein shall also include such childcare
- facility and related improvements, which shall be up to 8,000 square feet.
Exhibit D
MITIGATION 'AND MONITORING PROGRAM
Exhibit E
PRECISE PI ~AN
Exhibit F
PROPERTY DESCRIPTION
All of that real property in the City of South San Francisco, County of San Mateo, State of
California, more particularly described as follows:
Parcels Two (2), Three (3), Five (5) and Six (6) as shown on the Bay West Cove
Final Subdivision Map, Parcel Map No. 97-027, recorded January 22, 1998, in
Book 70, at Pages 33-40, File No. 98-008274, Official Records of San Mateo
County, California.
Exhibit G
SCHEDULE OF DEVEI,OPMENT
The following is Participant's anticipated time for Completion of the Improvements on
the Property:
1. Construction of two (2) buildings shown on the Precise Plan shall be Completed
by December 31, 2002.
2. Construction of an additional three (3) buildings (including the childcare facility)
shown on the Precise Plan shall be Completed by December 31, 2003.
3. Construction of an additional two (2) buildings shown (including the restaurant)
on the Precise Plan shall be Completed by December 31, 2004.
4. Construction of an additional two (2) buildings shown on the Precise Plan shall be
Completed by December 31, 2005.
5. Construction of the childcare facility, if such facility is to be constructed pursuant
to the terms of this Agreement, shall be Completed by December 31, 2003. In connection with
that certain Easement Agreement between Slough BTC and U.S. Steel Group, a Unit of USX
Corporation ("U.S. Steel"), dated September 29, 2000, attached hereto as Exhibit M, and the
performance of environmental remediation activities by U.S. Steel as specified therein, the
parties acknowledge that U.S. Steel may be using a portion of the Property located near or
adjacent to that portion of the Property in which Participant presently plans to construct the
childcare facility until December 31, 2002, and the parties agree the Completion date of
December 31, 2003 for the' childcare facility takes such potential use by U.S. Steel until
December 31, 2002 into account. In the event that U.S. Steel's use of such adjacent or nearby
portion of the Property extends beyond December 31, 2002, which in mm delays the ability of
Pariicipant to obtain the written approval from the RWQCB for the construction of the childcare
facility or the removal or waiver of that portion of the Restriction concerning the use of the
Property for schools for persons under 21 years of age by December 31, 2002 (with reasonable
efforts to obtain such approval, or removal or waiver, commencing as of the Effective Date), the
time for Completion of the childcare facility shall be adjusted and extended for the delay in not
being able to obtain such approval or removal or waiver by December 31, 2002.
Notwithstanding anything in the preceding sentences of this paragraph, the childcare facility
shall be Completed no later than five (5) years after the Effective Date.
6. Construction of the restaurant shall be Completed by December 31, 2004.
Participant, on behalf of itself and its successors and assigns, agrees that, for purposes of
the potential payment of penalties as described in Section 2.9, construction of all Improvements
on the Property shall be Completed no later than five (5) years after the Effective Date, subject to
delays permitted by Section 7.5. If a childcare facility is to be constructed on the Property, it
shall be Completed within the time period stated above. The penalties described in Section 2.9
shall be payable only if the five (5) year deadline (subject to delays permitted by Section 7.5)
stated in this paragraph is not met.
Exhibit H
SPECIFIC PI ,AN
.... Exhibit I
OYSTER POINT OVERPASS FEES RESOLUTIONS
RESOLUTZqN N0.,71-84
,CXTY COUN~L, CITY OF SOUTH SAN FRANCISCO, STATE OF CALXFORN[A
A RESOLUTION SETTING POLICY FOR THE
OYSTER POINT GRAOE SEPARATION FUNOING
WHEREAS, the City Council has held a proper~y notified Public Hearing on the
subject of adopting a formula for fUnding the Oyster Point Separation project;
and
WHEREAS, the City Council now wishes to adopt a fair and equitable formula
for funding the Oyster Point Separation project; and
WHEREAS, the City Council has heard and considered all of the information
presented at the aforementioned Public Hearing.
NOW, llJEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco that:
1. The formula entitled 'Oyster Point Contribution Formula' attached heretO
as Exhibit 'A' and incorporated herein by reference, is hereby adopted as the
official policy document of this City Council setting forth.the methOd of deter-
mining funding obligations of developers and the City with regard to the Oyster
Point Separation'project.
2. The formula entitled "Oyster Point Separation Fund Repayment Formula,'
attached hereto as Exhibit "B' and incorporated herein by reference~ is hereby
adopted as the official policy document of this City Council setting forth the
method of.determining whether or notla refund shall be made of monies paid into
the OyAter Point Separation Fund and, if sb, the amount of said refund to each
contributor.
3. The formulae adopted herein shall apply to developments occurring within
the land area indicated on the map attached hereto as Exhibit 'C' and incorpora-
ted herein by reference and as further described in Exhibit '0' attached heret~
CENTRAL RE(~ORD$.
'
!
m~
an~ incorporated by reference her~tnJ' 'Said contributions shall be collected
oo
-- from. ~evelopers within said l~nd area in such'manner and at such times as
legally possible to do so in'connection with'discretionary approvals of the City
for projects within said area in order to mitigate the significant cumulative
effects that decampments within the said land area will have upon tra~ftc
oriented to or from Highway 101.
· . 4. The Oyster Point Contribution Formula shall include AOT calculations
for all projects for which applications are received prior to the date which is
ten years after final acceptance by City of the work to construct theOyster
Point Separation~
I hereby certify that the foregoing Resolution was regularly introduced and
adopted by the City Council of the City of South San Francisco at a regular
meeting held. on the 23rd day of May 'j 1984, by the following
vote:
AYES: Kmzocilm~mher~ Mark N. Addtega, Fmanuele N. O),lont~, RicharJ A. Haffe~,
Ru~ Nir. nlnjljmln~; and Rnherta CRrri Teglia
HOES: Nnne "
ABSENT: Nnna
ATTEST: /s/ Barbara A. 8attaya
City Clerk
OYSTER POINT CONTRIBUTION FORHULA
1. General Provisions:
Contributions shall be based upon weekday Average Daily Trip (ADT) generati~
by various land uses as set forth in Exhibit ! attached hereto and Incorporated
herein by reference as though set forth verbatim. '.
Hote:~(a) Men ADT generation is based upon gross square footage
of a building, the gross square footage includes the
total floor area within the building shell; which shall
be computed by measuring to the tnstde finished surface
of permanent outer building walls~ The gross square
footage of a building shall be the sum of the square
footage of all enclosed floors of the building; Including
basements; mechanical equipment areas; corridors and
general support areas and the like: Gross square footage
shall not include first floor open lobby area in exess of
four hundred (400) square feet; atrium openings ~hich
extend to floors above the atrtuim floor; or Penthouses
used exclusively to house mechanical equipment'; Credit
may be given for A0T generated by uses previously existing
on the parcel(s) proposed for development if those previous
uses ~ere lawful and active within two (2) years prior to
thedate the 'project proposal was accepted by the City as
a complete application:
2. Contribution FormUla:
Engineering News Record Construction Cost Index
For SanFrancisco at date of Cash Payment Amount of
A0T x $154' x 5139,61'* = Contribution
3. Methods of Payment:
(a) In most cases; payment Or guarantees of payment shall be made prior
to issuance of buildtng permits.
(b) In some cases (i:e: projects underplay prior ~O. adoption of the
formula contained herein) guaranteed delayed payment plans may be
approved by agreement with adequate surety: Delayed payment agreement
will be subject to adjustment in accordance with Enginertng Ne~s Record
'Index changes: In no case 'shall the per-trip contribution amount be. less
than the $154 figure set forth above. Should the Engineering Ne~s Record
Index be discontinued; the formula provided above shall be converted
to any new or changed index ~hich might replace said index;
*The $154 figure set forth aboveis based upon the total estimated
cost of the Oyster Point Separation divided by the projected total
ADT applicable to that projectL
**July; 1983 Engineering News Record ConstructiOn Cost Iodex for San Francisco.
EXHIBIT "A" TO RESOLUTION NO. 71-84 CENTRAl. RECORD~
IqL,~ NO~ _-
· . )
EXH~BZT I TO
· ' OYSTER P0iN1 CONTRIBUTION FORMULA
* ADT
, Trip Rate Per 1000'
Land Use General 0ascription Gross Square Feet
Truck Terminal Facilities where goods .are transferred 9.86
between trucks, trucks and ratlroadst
or trucks and airports.
General Industr~ial Typical uses are printing plants, material $.46
testing laboratories, assomblers of data
processing equipment, and power stations
which usually e~loy less than $00 ~-
loyees with an emphasis on uses other than
manufacturing.
Manufacturing Primary activity is the conversion of 3.99
materials or parts into finished products.
l)
Warehousing Facilities which are all or largely devoted 4.50
to storage of materials.
Hotel Place of lodging which generally contains 10.50 (Per Room)
one hundred (100) or more lodging rooms or
suites and which could include restaurants,
cocktail lounges, meeting rooms, banquet
rooms, and other retail and service shops
within the same building.
Hotel Place of lodging Which ordinarily contains 10.14 (Per Room)
less than one hundred (100) rooms or suites
which could include a restaurant on the same
premises.
General Office Office building housing one or more tenants 12.30 ~
Building and is the location where the affairs of a
business, commercial or industrial organization,
professional person*or firm are conducted and
related support services.
Research ~enter Facilities or groups of facilities devoted 5.30
nearly exclusively to research and develop-
merit activities.
Recreational Club Privately owned facilities including tennis 11.70
courts, swin~ning pool's, racquet ball courts,
handball courts, and other minor gymnastic
facilities.
Dinner House Eating establishments of high quality in $6.30
Restaurant interior furnishings and food which generally ..
have a customer turnover rate of one hou~ or
longer and are not open 24 hours per day.
Page 1 of 3
C~NTRAL RE~ORD$
-- 18
. ~XHISI~ 1 TO
' -' OYSTER POINT CONTRIBUTION FORMULA
ADT
' Trtp Rate Per ~000'
Land Use General Description Gross Square Feet
High Turn-over Eating establishments which ~nerally have 164.40
Restaurant a customer turn-over rate of Jess th~n one
hour, including, but not limited to, coffee
shops, cafeterias and delicatessens.
Shopping Center An integrated group of comercial est-
ablishments which is planned, developed
owned, and managed as a Unit:
Under 50,000 Gross Square Feet 115.8
50,000 Gross Square Feet and Greater .79.1
2)
General Commercial Establishments contained within freestand- 48.00
lng con~nercial buildings including strip
commercial buildings.
Banks and Savings Contain banks or savings and loan 74.00
and Loan facilities.
1)
Marina Public or private marina with some 3.2/berth
having social activities scheduled
throughout the week.
Single Family Dwellings lO.O/unit
3)
Townhouses 9.0/unit
3)
Condominiums and 5.0/unit
Apartments
Except for general office buildings and banks and savings and loan use, all=land use
listed above shall be calculated at the applicable primary land use rate notwith-
standing the fact that the use may include up to 25% of office use ancillary to ~e
primary use. Office use exceeding 25% for a given structure shall be computed at
the general use rate as set forth above. Any other uses in the same structure shell
be computed as a separate use of that structure.
The following typical 'example would apply to a 50,000 square foot industrial
building which contains 30% Office, 2% Delicatessen, 8% General Industrial and
60% Warehousing:
Average Trip Rate ADT
Square 1000 Sq. Ft. of Trip
Use Feet Gross Floor Area Generation
Office 2,500 (15,000-1Z,500) 1Z.30 30.75
Delicatessen 1,000 164.40 164.40 ..
General Industrial 4,000 5.46 21.84
Warehousing 42,500 (30,000+12,500) 4.50 191.25
408.Z4
in this .case, the total trip generation would be 409 trips per day.
. C~NTRAI. RECORDS
*See next page ,
· -mL. NO.:''<~/~'~1/~'~ ~.,
': *For specific definitions of land use categories and data supporting trtp generation
, rates see 'Trip Generation Second Edition - lg7g' prepared b,y the Institute of
~ 'TranspOrtation EngtneersJ A copy of~ thtsreport, tncludiog use definitions and
-- variations of the above listed rates, has been placed in the files of the Depart-
ment of Co~,nunity Development, 400 Grand Avenuej South San Francisco*, CA 94080.
l) A Traffic Impact Analysis of the Proposed Oyster Point Business Center; TjKM,
Transportation Consultant, Dec. 1981. · '. o
2) CALTRANS -'l,~h Progress Report on Trip Ends Generation Research Counts~
December, 1979~
3) Terrabay Development; Final Environmental Impact Report~ AUgustj 1982
EXHXBIT "B" TO RESOLUTION NO. 71-84
OYSTER POINT SEPARATION FUNO REPAYHENT FORMUt.~
Any funds collected in excess of those needed for the local share of the Cost of
Construction of the Oyster Point Separation shall be refunded to developers in
the same proportion that the AOT of their particular project bore to the Total
ADT upon which the total contributions by all developers to the Oyster Point
Separation project were based. Refunds to be made shall be determined in accord-
ance with the procedure outlinedon Page 2 of this exhibit setting forth examples
of payment refunds. Refunds, if any are to be made, shall be made on a date not
later than ten years and two months after final acceptance by City of the work
to construct the Oyster point Separation.
In the absence of excess payments toward the principal of the project, no 'refun~d
will be made for interest'earned on such payments; such interest will be applied
to the Agency's share and will' be reimbursed to the Agency. If the net local
share exceeds total payments into the principal of the fund, there will be no
repayment 'to developers unless additional payments made by other developers follow-
ing the date of project completion bring total payments to a level exceeding the
local share.
'- ..... 21-'I
CE. NT~ RECORDS
, " ' EXAMPLES OF PAYMENT REFUNOS
' ** ASSUHPTIONS
I 2 3 4
Project Total % Pmt. Repaid Amount of Repayment*
ADT Payments Pro~ect ~T $1~380,000 x COL. 3
divided by'
~.~, total ADT
Developer "A" 37,000(1) $3,800,000 :357 $492;660
Developer "B" 4,000 650,000 .039 53,820
Developer "C" 3,750 600,000 .036 49,680
Developer "D" 12,000 1,900;000 .116 160;080
Developer ~E" 7,000 1,100;000 .067 92;460
Redevelopment Agency
(Including Future) 40,000(1) 2;500,000 .385 531;300
TOTALS 103,750 9;750,000 1.000 $1'380,000
Note {1) - After adjustment for contributions to East Grand Avenue Overpass at
the rate of $154 per trip
Example tl - Assumes net local share cost = $8,500,000
Assumes total interest earnings = 1,000,000
Total excess payments = $1;250,000)
Total excess interest = 130,000) 1,380;000
*Repayment calculated by mutliplying
excess payment and tnterest costs by
% of ADT in Column 3 (anmunt tn this
example shown in ColUmn 4 above);
Example 12 '
Assumes net l'ocal share cost = $10,750,000
Total interest earnings = 1,250;000
Total excess payments = 0
Total excess interest = 250,000
(Note: In the absence of excess payments no
repayment will be made and excess interest
will be applied to agency share of future
contributions:)
Example ~3
Assumes net local share cost = $12,000,000;
Assumes total interest earnings = 1;250,000
Total excess payments = 0
Total excess interest 0
(Note: Because net local share exceeds total
~ Payments will be no repayment to developers ' 2 2
unless more than $1,000;000 in additional'pay: '
· ments are made by other developers following
date of project completionJ) CENTRAL RECORD!
Page 2 of Exhibit Irl~S NO~,~'~'~-
EXHIBIT "B" TO RESOLUTION NO.' 71-84
OYSTER P01#T SEPARAT[0# FUH0 BOUHOARY
' ' " ~EXHIB[T D'
Commencing at the intersection of the centerltne of Colma Creek w~th the cen-
terline of South Airport Bo. ulevard; thence* alo*ag sa~ centerl;ne of South
Airport Boulevard, northerly and northwesterly to the .centerl;ne ol' State
* High'aay 101 (Bayshore Free~ay}; thence along the centerltne of sa~d h~gh,,ay,
northerly and northeasterly to a point opposite the prolongation of the
southerly boundary line of the Parcel Hap filed for record at Book 53 of Parcel
;.taps at Pages 82, 83, 84 and 85, San Hateo County Records; thence along said
prolongation to the southeasterly corner of said Parcel Hap; thence westerly
along said southerly boundary line to the northerly r;ght-of-~ay line of
H~11side Boulevard; thence along the northerly right-of-way line of Hillside
Boulevard, being contiguous ~ith the southerly line of Parcel I of sa~d Parcel
Flap to the lands of the South San Francisco Un~fied School D~str~ct; thence
leaving tl~11side Boulevard~ northwesterly, northeasterly, and easterly along the
boundary of Parcel 1, to its intersection ~th the most ~esterl~ corner of
Parcel 2 as sho~n on said Parcel Hap; ~hence along the northwesterly and
northerly boundary of P. arcel 2, nort)~eas~erly and easterly, to the north~es~erly
boundary of Bayshore H~gh~ay as sa~d h~gh~ay is s;~o~n on the above referencecl
Parcel ~lap; *thence southwesterly along the southeasterly boundary ot= sa;d Parcel
Hap contiguous ~Lh .the northwesterly line of Bayshore I~igh~ay to a point of
~ntersect;on ~ith the South San Francisco C~ty limits; thence easterly and
northeasterly, along*sa~d City limit line to a point lntersect;ng a l~ne be~r;ng
due £asC being the .prolongation of the property 1She common to Tide Lots 18 and
31 (Section 15, Township 3 South, Range 5 1/esL}; thence along said line, due
£'ast along the southerly property .line of T~de Lots 18 and 17 (Sect;on 15,
C=_NTi:t.~d. RECORDS
-, .OYSTL"R PO[NT SEPAR~, FUNO BOU,qDARY
~ownshi~ 3 :~)uth, Range 5 West) and 24, (Sectfon 14, T3S, RSW) to a potnt of
intersection of the South boundary of said Tide Lots Z¢ and the northerly line
of the ship channel (2S0 feet ~idel as established by the San Francisco Harbor
Line Board on Oecember S, 1936 and as shown on the Parcel Map, Oyster Point
Business Park filed at Book 52 of Parcel Maps, Pages 58 and Sg, San Rateo County
Records, thence along the northerly line of said ship channel to tis pofnt of
.intersection with the northeas.terly line of Tide Lot 2! (Section 14, T3S, RSl~);
thence South 45o East along the northeasterly b6Undary lines of Ttde Lot 21, 20
and 30 (Section 14, T3S, RSW) to the easterly line of said Lot 30; thence due
South along the East property line of Tide Lots 30 (Section 14) and Tide Lots 3,
1~,, 19 and 30 (Section 23, T3S, RSWI to.the southeasterly corner of Tide Lot 30;
thence South 45o West along the southeasterly property line of Tide Lot 3
-- (Section 25, T3S, RSW) to a point on the southwesterly corner of said Lot 3;
thence due West, along the southerly' line of Tide Lots 4 and 5 (Section 251 to
~ the southeasterly corner of Parcel 4 of the Parcel. Map filed at Book 38, Pages
27, 28 and 29, San Mateo County Records;- thence westerly along the' southerly
boundary of Parcel 4, Parcel 2 and Parcel I as shown on said map to the south-
westerly corner of Parcel 1; thence South 15° 2g'04" West, a distance of 23.S5
feet; thence due West 30 feet, more or less, to the easterly line of Parcel B as
shown on' the Parcel Map filed at 'Book 25, of Parcel Haps at Page 49, San I.lateo
County Records; thence along the East boundary of said Parcel B, along a curve
to the right with a radius of 372.24 feet, a distance of 20 feet, more or less;
thence continuing along said easterly line, South 150 29'04' West, a distance'of
127.76 feet to the soUtheasterly corner of Parcel B; thence along the South
-- b'oundary of said Parce~ B due West, a distance of 561.Sg f. eet to the south-
westerly corner of Parcel B, being also the East right-of-way line of
.. .' OYSTER P0~NT SEPAl,, N FUN0 BOUNOARY
LtttlefJeld Avenue as sho~n on the SubdJvJsfon ~p of South San Francisco
ZndustrJal Park Unit Z-E, fJled at Volume 55 of F~nal Haps at Pages ~0 and 21;
thence due North, a distance of 144.~ fee~ alon~ ~e Etst right-of-way line of
LtttlefJeld 'A~ue ~ ~e South boundary 11ne of said .subdJvtsJon map; ~ence
along said boundary 11ne, due ~est a distance of 1,024.98 feet; thence along a
curve to ~e rlght having a radius of 314.568 feet, subtending an angle of
72° 13'04' a distance of 396.49 feet; thence, continuing along said subdjvJsJon
map boundary, South 0° 06'30', East a distance of 28.06 feet~ thence along a
curve to ~e left ~Jth a radius of 355.263 feet, subtending an angle of
6° 22'26', a distance of 37.30 feet; thence ~orth 17o O7'24' Nest, a distance of
1.35'; thence along a curve to the right ~th radius Of 349.265 feet, subtending
an angle of 17o 13'54", a distance of 105.04 feet; thence South 89° 53'30" East
a *distance of 20.~ ~eet; thence Sou~ 0° 06'30' East, a dJstance o~ 8.26 feet
to the nor~eas~rly corner of Lot 5 as said Lot Js sho~n on the SubdjvJsJon ~p
of South San Francisco ~ndustrJal Park Unit go. 1, filed at Volume 46 of Final
Haps, Pages 5, 6 and 7; thence along the easterly line of Lot 5 and Lot 4, Bloc~
.6, as sho.en*on said map, Sou~h 0° 06'30" ~est, a dJs~nce of 59.27 feet; thence
along a curve to ~e lef~ ~Jth a radius of 369.265 feet, subt~ndJng an angle of
17° 13'54" East a distance of 111.06 feet; thence Sou~ 17° 07'24" East, a
distance of 94.99 .feet ~ the *southeast corner of Lot 4~ thence along ~e
southerly line of Lot 4, North 80° 25'16" East a distance of 342.09 feet to ~e
easterly line of Harbor ~ay as sho~n on sa~d subdivision ~p; thence a~ong ~
easterly right-of-way lJ~e or Harbor ~ay,. South 0° 06'30' ~est, ~ distance of
14.00 feet; thence ~orth 89° 53'30' ~est,. a distance of 60.00 feet to ~e
~esterly right-of-way line of Harbor gay; thence along said .line, along a cu~e
to ~e left ~Jth a radius of 360 feet, a distance of ~g.09 feet; thence leaving
- C!~L RECORD~
~,., .. OYSTL-'R POIHT SEPAR,, FUHD BOUIIOARY
· 'said ri'ght-o'~-wa¥, North 89o 53'30" l~est, a distance of 263.92 feet to the
easterly line of Lot. 5, Block 5 as said Lot, is shown on the above referenced
Subdivision Hap of South San Fi'ancisco [ndustrial 'Park UnJt No. [; thence North
890 53'30" Idest, a distance of X20.O0 feet to the centerline of Colma Cree1~ as
shmvn on said subdivision map; thence along said centerline of Colm~ Creek to
the centerline of South Airport. Boulevard and the Point. of Beginning.
. C£NTRAL RECORD~
_,
RESOr, UT I0# NO.
CITY COUNCIL, CITY OF SOUTH SAN FiIAHCISCO, STAT~ OF ~EFO~IA
A ~SOLUTZON ~HDI~ THR OYSTER POINT G~B SEP~TZON
~E~ S~PE AND THE OYSTER '~INT ~NTRIB~I~ ~-~
~llEI~AS,'~ Hay 23, 1983, based on the F£nal Report o~ the O~stee Po£nt
Boulevard H£ghway 101 Grade SeparatLon FeasabLl£ty Study prepared by George S.
Hol~e and Assoc£a~es £n February 1983, she CL~y CouncLl, by Reeolu~Lon No.
84, es~ablLshed a development ~ee ~L~led ~he ~s~or PoLn~ Con~FLbu~Lon
Fo~ula, a re~urseMn~ ~h~ol~y ~Ltled ~he ~ste~ PoLflt Separation Fund
~epa~n~ Fo~uli, and ~4entL~L~ the a~ea subject to pa~n~ bts~ on the
~s~er Poin~ Fo~ula and beflef~ by tho cons~uc~on st ~he ~s~t~
in~erchanqe; and
~E~AS, ~ho 1983 Nolte s~udy Lden~lf$od included ~ho 'sou~und on-
par~ o~ the oyster Po~fl~ Interchange Project; and
~E~AS, a~ elements o~ ~he Oyster Po~n~ Zfl~erchanqe ~rojec~ excep~
hookr~ps have been constructed; and
~yover f~ Sou~und HLqhway.lOl ~o eastbound Oyster PoLfl~ ~ulevl~v~l~
be necessa~ ~n ~he future; and
~E~AS, addLtLonally, L~ the CL~y co.encee cono~c~Lon o~ the
cons~uc~Lon of ~ho flyover; arid
~E~AS, based on ~heoe cLFcums~anceg, ~he DL~ector o~ ~blLc
reco~ends Lnclua~oflo~ ~he sou~und flyove~ Ln'~he p~oJec~ doocrLp~Lon o~
~he Oyo~e~ PoLn~ Interchange as prevLouoly eo~ab~Lshed by ~he 1983
S~udy; and
~E~AS, based on the land uses au~horLz~ Ln ~he ~ecently a~p~
o~ ~01 Area Plan and ana~ysLs set ~or~h Ln ~he s~aff re~, ~he DL~ec~or o~
~ubkLc ~orks rec~nds ~en~n~ o~ ~he O~s~or Po~n~ Cont~LbutLon
thereby effectively ~educLng ~ho curren~ ~ee by approx~ately 22 ~cent; and
~E~AS, the DLrec~o~ o~ PublLc Works ~ur~heF ~ec~ends ~ndLnq the
~ster PoLn~ Contribution eo~ula ~o au~horLze use o~ ~he ~o~ ~eoen~
o~ *T~p Generation" p~epa~ed by the InscL~u~e of T~afls~atLon RngLneer8 ~o~
land uses no~ s~cL~cally LdefltLfLed Ln txh~bLt 1 o~ ~he Contr~butLofl
and ~o aL~ the t~a~Lc gefleratLofl to ~ de~e~Ln~ based on a ~ta~fLc study
for ~hose ~and uses no~ Lnclud~ Ln Exh~bLt A or ~he ~.~ ~ecen~ ed~t~ou
Tr~p GerFalCon; and
WHE~AS, no~ce of ~h~s hea~Lng was published as ~e~Lred by ota~e law.
H~, THERE~, BE IT RESO~D by khe CL~y Council si ~he C~y of Sou~h
San Franc~sco~
1. The "Oyl~or PoLfl~ ~n~rLbu~Lofl Fomull*, ag adop~od by SesSion
of ~esolu~on No. 71-84, ~s hereby amended, Ln ~s entLFe~y, ~o read
~or~h ~n Exh~bLt A hereto.
2. The Oyster Po~n~ Interchange Project, as described Ln ~ho
Re~r~ of the Oys~o~ PoLn~ BoulevaFd H~ghway 101 Grads Separation
S~udy" prepared by George S. Nolte and Associates Ln Feb~a~ 1983 Lo hereby
~ended ~o add the flyover conflec~Lng southbound H~ohway 101 ~o ~o~er
Sou~eva~d easterly o~ HLgh~ay 101.
8hove, tho provLeLofle of ~eoolution #o. Vl084 ohsl~ rem&La La ful~ force 8nd
effect.
Z hereby certLf¥ th&t the forogoLng Reoolut£on wag re~XarXy Lfltroducod
and &clopped by the CLty Covnc~L of tho CLt¥ of South $&n fr&nc£oco et ·
regular amet£ng herd off the?Rth day of
1996 by the foll~Lflg vote,
AYES= C0uncllmembers Eugene R, ~ulltn, John R. Penna, Robert Yee
and ~a¥0r Pro Tem Joseph A. Fernekes
HOESz None
ABSTAIN= None
ABSENT= I~lyor Jack Oraqo
A??EST: /S/ Barbara A. Batta~a
C~t¥ ¢~erk
~:\..,oyspoLnt.614
· E~abt~hed co~ for a ~r¥ genermion ~ ~o~on No. 71~.
· * ~ I~ ~g~g N~ ~eco~ ~~~ ~ ~ for ~ F~. J~
~Z~~TO RESOLUTION NO. 102-96
" EXPmlT 1 TO
OYS'I~R POINT t"ON'fRIRIITION FOIIMUI.~
ADT Trip Rate/10~*
?
Truck Terminal Facilities where ~ arc u-ansfcnnl bci,,vccn
tr~cks and railroads, or tracks ~! ahports. 926
Crcncral Industrial Typical uses arc printlnll plants, material testing
laboratories, assemblers of data processing equipmcnt,
and power stations which usually employ less dmn ~00
employe~ w~th an emphasis on uses other than
Manufaclurirlg Primat), activity is d~e convct~on of matorials or pans
into. ~.uished products. 3.99
Wa~housln$ Facilities Which are all. or lar~elly devoted to storage
materials.
Hotel Plar~ of Iodsin~ wig.eh ge. net-ally con*~-* one hundred
(100) or mote lodging moms or suites and which could
include resuumnts, :oo~kt~ lounges, meetin8 moms,
thc same buDdi,,*.. 10..~0 (Per Room)
Motel Piece of ~od~in$ which on:lh,.arily contains less than one
hund~i (tO0) rooms or suites which could tnclude a 10.14 (PcrRoom)
tcstnutnnt on the san~ premises.
General O~cc OfF~ec buildia$ housi~ one or more teaaats and is d~e
Building location wbet*e the affairs of a business cc~_ metcial or
conducted snd related suppo~ ~ 12.30
Research Center Facilities or ~toup of facilities d~voted nearly
exclusively to research and dcvcl~ent activities. 5.30
Page I of 3 .- '-" 1 ~ 'N
~BtT 1 TO
OYSTER P~INT CONTRIBUTION FORMULA
ADT Trlp~te/1000*
Land Us~ G~.r~t nescripi,~ Gross Square Feet
Rea'eatlon~i Club Privately owned ~ ~l~ ~is ~
. Di~Ho~~t ~S ~~U of ~ ~i~ ~
t~ov~ n~ of ~ ~ o~ ~, ~1~ but ~
limit~ m, ~ff~ ~, ~~ ~ ~H~~ i~.~
Shopping ~m~ ~ ht~ ~ of~~ ~li~ w~ch
· U~r $0,~ ~ ~ fm
· 50,~ ~ ~ f~ ~ ~
General Commercial Establi~t~ co,,,,;-'~d within flrccstanding commercial
buildings including strip co,~,~en:ial buildings. 4g.00
~ ~d Savings & Loan Contain benks or savings ~1 loan facilities. 74.00
,~rina Public or private mar~ with sor~ having so~ial
a~vlti~ ~;hedul~l th~ugho~ ',he week. 3.2/be~~
$~ngl¢ Family Dv~ll~ngs 10.OAmlt~
Townhous~ 9.0Amir~
Condom~um~A~ 5.0/unit~
Except for general office but]dings, and b~ks end e~vin~ and loan use, all land usc llstcd above shall be
calculaxed at the applicable primaW land use rate notwitl~tn,~dir~ the fact that the use my include up to
25% of office uso ~'ilhu'y to the primary usc. ofrg~ u.sc cxcCedln$ 2S% for ~ given stn~tu~ shall be
~s a separate u.~ of thnt ~
1 2
Page 2 of :3
oy.~TF.R POINT ~ONTRII~IITION FORMU~.A
- ' For land uses not provided abo~. trip generation shall be based upon land
of "Trip Generation' prepared by t~ lnstltut~ of Tra~portatlon
en~neertng smdy should the ~ zfe not provtged tn
TI~ following typie(d example would apply to a $0.000 square foot indmlzlal building wl~h contains 30%
Office, 2% Delicatessa~. I% General Industrial and 6(f'/, Warehousing:
Average Trip R~t¢ ! 000
~q. Fi. of
l,l..<e .~(tua,'e Feet Gross Floor Ama ADT Trip Generation
Office 2.500 (1S,000 -!.'2,S00) 12.30 30.?$
Dellcata~"n 1,000 164.40 164.40
General Industrial 4,000 ~.46 2 l.g4
Warehousing 42~00 (~0,000 +12,500) 4.50 191.25
?o/4,{ 408.24
'For specific definitions of land use categories and
Gcncration Second Edition - 1979" lxepared by thc lmtltu~ of Transpotlation
rei~rt, including use definition~ and variations ofthe above
Dcpmmmcnt of Community Dcvelopment, 400 Or~nd Ave. nu~, South San Francisco, CA 9,10{0.
1. A Tr4~[ic Impact Analysis of the Proposed ~ Point Business C~nter. TJIG'vi
Transpo~fion Con~xtltant, Deeembe~
2. CalTrans - 12th Prolgess Report on THp Ends Generation Reseaze. h Coun~ Decemlxzr
3. i'crrabay Dc.,'dopm~t, F'mal Environmental Impact RClXZt, Au~,st 19{2
RESOLUTION NO. 157-96
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION ADDINGADDITIONAL LAND USES FOR THE
OYSTER POINT G~DE SEPARATION CONTRIBUTION FORMUT.%
WHEREAS, Resolution No. 102-96, adopted June 26, 1996, amended the
"Oyster Point Contribution Formula" used to calculate development fees for
properties benefitted by the construction of the Oyster Point Interchange, by
revising ~he contribution formula including the fee charged per trip
generated, but the trip generation figures associated with existing land uses
defined in the formula were not amended by Resolution No. 102-96; and
WHEREAS, the contribution formula, as amended by Resolution No. 102-96,
uses trip generation figures developed from specific land uses; and
WHEREAS, although Exhibit 1 to the contribution formula, as amended by
Resolution No. 102-96 contains trip generation figures for certain land uses,
and contains provisions for land uses not listed in Exhibit I to the
contribution formula, it would be beneficial to amend Exhibit 1 to the
contribution formula to include additional land uses with their associated
trip generation figures; and
WHEREAS, the Director of Public Works recommends that Exhibit 1 to the
contribution formula be amended to include the following land uses and their
associated trip generation figures:
Averaae Daily Trips (~ADT")
1. Gasoline Service Station 174.71 per fueling position
without convenience store
and car wash
With convenience store 162.78 per fueling position
With convenience store 145.71 per fueling position
and car wash
2. Convenience Market
Without gasoline pumps 739.99 per 1000 gross sq. ft.
With gasoline pumps 845.60 per 1000 gross sq. ft.
3. Free-Standing Discount Store 70.13 per 1000 gross sq. ft.
4. Discount Club 42.63 per 1000 gross sq. ft.
5. Car Storage 403.33 per acre of parcel.
6. Car sales only 307.99 per acre of parcel.
7. Car sales with Service 47.91 per 1000 gross sq. ft. plus
& Parts Sales 307.99 per acre of parcel in excess
of 3.50 acres
WHEREAS, notice of this hearing was published and otherwise provided as
required by state law.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South
San Francisco that the "Oyster Point Contribution Formula" is hereby amended
to read as set forth in Exhibit A attached hereto, including Exhibit i to
Exhibit A.
I hereby certify that the foregoing Resolution was regularly introduced
and adopted by the City Council of the City of South San Francisco at a
meeting held on the 9th day of October , 1996 by the following vote.
AYES: £ounci]members Eugene R. Mu]lin. John R. Penna. Robert Yee
NOES: and Mayor Pro Tem JoSeph A. Fernekes
ABSTAIN: None
ABSENT None
ATTEST: /S/ Barbara A. Battaya City Clerk
A: \ OYSTRPNT .ADD
EXtI]BIT 1 TO RESOLUTION NO. 152-96
OYSTER POINT CONTRIBUTION FORMULA
ADT Trip
Land Use General Description Rate/1000
Gross Square ,Fcct
Truck Terminal / Facilities where goods arc transferred between
tracks, trucks and railroads, or trucks and
ah~orts. 9.86'
General Industrial Typical uses are printing plants, material ~esting
laboratories, assemblers of data pwcessing
equipment, and power stations which usually
employ less than 500 employees with an
emphasis on uses other than manufacturing.
5.46'
Mmufacturing Primary activity is the conversion of materials
or parts into finished products. 3.99'
Warehousing Facilities which are all, or largely devoted to storage
of materials. 4.50'
Hotel Place of lodging which generally contains one
hundred (100) or more lodging moms or suites
. and which could include restaurants, cocktail
lounges, meeting moms, banquet moms, and
other retail and service shops within the same 10.50 (Per Room)~
building.
Motel Place of lodging which ordinarily contains less
than one hundred (100) rooms or suites which
could include a restaurant on the same 10.14 (Per Room)~
premises.
General Office Office building housing one or more tenants
Building and is the location where the affairs of a
business commercial or industrial
organization, professional person or firm are 12.30'
conducted and related support services.
Research Center Facilities or group of facilities devoted
nearly exclusively to research and 5.30'
developmem activities.
EXHIBIT I TO
OYSTER POINT CONTRIBUTION FORMULA
Land Use General Description ADT Trip Rate/1000
Gross Square Feet
Recreational Club Privately owned facilities including tennis courts,
swimmin~ pools, racquet ball courts, handball
courts and other minor gymnastic facilities. I ! .70~
Dinner Eating establishments .of high quality in interior
House Restaurant furnishings and food which generally have a
customer turnover rate of one hour or longer and
are not open 24 hours per day. 56.30~
High Turn-over Eating establishments which generally have a
Restaurant customer tumover rate of less than one hour,
including, but not limited to, coffee shops,
cafeterias, and delicatessens. 164.40~
Shopping Center An integrated .group of commercial
establishments which is planned, developed,
owned, and managed as a Unit
Under 50,000 gross Square feet 115.8~
50,000 gross Square feet and greater 79.1 ~
General Commercial Establishments contained within freestanding
commercial buildings including strip commercial
buildings. 38.003
Banks andSavings Contain banks or savings and loan
& Loan facilities. 74.00~
Marina Public or private marina with some having
social activities scheduled throughout the week. 3.2foerth2
Single Family
Dwellings 10.0/unit4
Townhouses 9.0/unit4
Condominiums/
Apartments 5.0/unit4
EXIIlBIT 1 TO
OYSTER POINT CONTRIBUTION FORMULA
ADT Trip Rate/1000
Land Use General Description Gross Square Feet
!
Gasoline/Service Automobile service station including facilities for
Stationt fueling motor vehicles; may also include facilities
for servicing and repairing motor vehicles, may or
may not have convenience stores or car washers.
The maximum number.of fueling position shall be
applied for each gasoline pump or island.
fueling position is defined as a space that allows a
vehicle to access an individual fuel dispenser.
Therefore, the Wtal number of pump hoses equal
the Wltal number of fueling positions.
without convenience store and car wash 174. 71 ~ per
fueling position
with convenience store 152. 78~ per
fuelingposition
with convenience store and car wash 145. 71~ per
fueling position
Convenience Market Market selling convenience foods,' newspapers,
magazines, and often beer and wine, may have
gasoline pumps.
without gasoline pumps 73 7. 99~
with gasoline pumPs 845. 60
Free-Standing Often the only store on a site, but can also be
Dis.count Store found in mutual operation with a related or
unrelated supermarket, garden center, and/or
service station, or as part of neighborhood 70.13
shopping centers.
Discount Club ~4 discount club is a discount store/warehouse
whose shoppers pay a membership fee in order to
take advantage of discounted prices on a wide 42.63
variety of items.
EXItIBIT I TO
OYSTER POINT CONTRIBUTION FORMULA
ADT Trip Rate/1000
Land Use General Description Gross Square Feet
Car Sales Generally included are automobile service and parts sales,
with Service along with sometimes substantial used car sales operation,
and Parts leasing activities, and truck sales and servicing. ~In
Sale_s average facility of 30, O00 gross square feet of building is
sited on a 3.50 acre parcel. For a larger site, an additional
trip rate is applied at a value of equal to 75% of the
average facility, which would represent the sales componet
of the trips generated. This trip rate is 307.99per acre.
parcel less that 3.50 acre area 47. 91 ~
parcel greater than 3.51 acre area 47.91~ per 1000
Gross Square
Feet plus
307. 99 per acre
of parcel in
excessive of
3.50 acre
Car Sales Only Open and/or enclosed area used to display vehicles for
purpose of sales, may include sales office. Since a car sales
only 'use would not include service and parts sales as a main
~ function, the trip generation rate is based upon 75% of a Car ~
Sales with Service and Parts Sales use. ~4n average facility
with service and parts sales consist of a 30,000 gross square
feet of building sited on a 3.50 acre parcel. /Ipplying trip rate
equal to 75% of the average facility would represent the sales 307.99 per acre
only use. This trip rate is 307.99 per acre. Rate would of parcel
include any and all buildings related to the use.
Car Storage Open and/or enclosed area used to store vehicles for a period
of time prior to transferring to a related use, i.e. (car rental or
car sales); may include administrative offices, security building
or servicing area. Based upon a car parking space width of 8.5
feet and length of l8 feet, a one acre parcel can be configured
with 7.97 rows of parking with 1687 cars in each row. The one
acre parcel will contain 134.44 stored vehicles. Each stored
vehicle will generate 3 trip ends - 2for the movement of the
vehicle on and off the parcel and I for transporting a driver to
or from the parcel which is considered a part of a pooled driver 403.33 per acre
transport, of parcel
EXHIBIT I TO
OYSTER POINT CONTRIBUTION FORMULA
Except for general office buildings, and banks and savings and loan use, all land use listed above shall
be calculated at the applicable primary land use rate notwithstanding the fact that the use may include
up to 25% of office use ancillary to the primary use. Office use exceeding 25% for a given structure
shall be computed at the general use rate as set forth above. Any other uses in the same structure shall
be computed as a separate use of that structure.
· ' .x imrr I xo
OYSTER POINT CONTRIBUTION FORMULA
__ . For land uses not provided above, trip generation shall be based upon land uses from the current edition of
"Trip G-cnerafion" prepared by the Institute of Transportation Engineers or based upon a traffic engineering
study should the land use not provided in either.
The following typical example woUld apply to a 50,000 square foot industrial building which contains 30%
Office, 2% Delicatessan, 8% General Industrial and 60°,$ Warehousing:
?
Average Trip Rate 1000 Sq. Ft.
of
Use Square Feet Gross Floor Area ADT Trip Generation
Offi,~e 2,500 (15,000 - 12,500) 12.30 30.75
Delicatessen 1,000 164.40 164.40
General Industrial 4,000 5.46 21.84
Warehousing 42,500 (30,000 +12,500) 4.50 191.25
Total 408.24
In this case, the total trip generation woUld be 409 trips per day.
1. "Trip Generation Second Edition - 1979" prepared by the Institute of Transportation Engineers
2. -Traffic Impact Analysis of the Proposed Oyster Point Business Center, TJKM Transportation
Consultant, December 1981
3. Caltrans - 12th Progress Report on Trip Ends Generation Research Counts, December 1979
4. Terrabay Development, Final Environmental Impact Report, August 1982
5. "Trip Generation Fifth Edition-1991", and "Trip Generating-February 1995 Update to the Fifth Edition",
prepared by the Institute of Transportation Engineers
Normal Type Previously Approved Land Usage Index
Italic Type Added Land Usage Index
Exhibit J
COVENANT AND ENVIRONMENTAL RESTRICTION
RECORDING REQUF..STEll IIY: ,
CIlICAGO TITLE COMPANY
WllEN RECORDED MAIL TO: R~E~~ ~~R
R~d et ~t of
Bay W~o~, LLC CHICAGO T~TLE ~NSU~ANCE COHPAN~
~ Towed St~
~ecordl~ .
SPAC[ A~O~ 11t6 LINE FOR R[COR~R1 Ui[
CO~NANT A~ E~IRO~ENTAL ~STRICT!ON
Order' fir; ~ F)p,wcrintinn' 98' 1,3R¢,'1 Paoe ¢ of 26 Comment: J COST
COVENANT AND KNVIRONMENTAL
RESTRICTION
This Declaration and Covenant affecting tie use ol'renl property is made n.q ortho 26th
day of Janua~,, 1998 by Bay West Cove [.LC, a Califomi,~ Limited Liability Company
{"Covenantor"), which is the o~qmer of certain real properly situated ia the City of South San
Francisco, Count)' o{'San Malco, State o1' Calil'oroin, as more Fully described in paragraph I. I I
of this Covenant (the "Property") I'or the benefit of the Covennntor, its Successors and A~igns,
Owners, Former Owners and the Stale of California by and through the Regional Water Quality
~',,L~ C~mi Boani ("RWQCB) with reference to Ute I'ollowiflg facts:
RECITALS:
^. The Property is a former site ora steel roill and fab~calion plant on which industrial
wa.~e (principally insoluble compounds of lead and petroleum INdromrbons) has iropncted
surface levels ol'suils on portions of the Property. In some instances the impacted soils have
been determined to constitute hse. atdous mnte~iai.as defined lerein. The site i,vc.~tigntion prior
lo lire iroplementation ofnppmYed remedialion acti¥ities on the Properly has revealed Ihat the
onshore contamination is principally located in the top one to four feet of surface soils a~ no
appreciable iropact has been detected to subsurface 8round water. Certain crashed couc. rete
material has been pineoll on a portion of lbo Property ns depi¢led on Exhibi~ "i!". Prior to its
placement the material has been analyzed using Ihe Total Characleris~ic I.enchate Procedure.
FIscal on the results of Ihe analysis RWQCB stalTIms concluded thai priority metals, total
PCB's and total PN^'.~ d~:lcclcd in the crushed concrcle do not exhibit hazardous waste
characteristics nnd ~ha! the material does not pose n long lena threat to Ihe underlying
Co~'e~ant and Envtrenmenlal Re~lrtttien . 1:~/1/9'/. Page I
Order: 66 Description: 98. 13813 Page 2 of 26 Comment: J COST
groundwater or the San Fnmetmm t~y.
IT. The Property has been dm mbject ol'im~c~dGation I~, the Covemmtor in conjunction
and ~ether the wames Mmtlifllll il[mat,~ny~laiiignnte~er i'mum polemiai 'lmaml to
pubtic health or safety. RW(~B is the attthodzed go~ a6ency ~vith jurisdiction over ti)
thc appm~tl nnd cnt'orcement of this covenont, (ii) the adoption ofelean-up requiremems for thc
Property nf~d (iii) acceptance and notification o{'sntisfactory completion of the elf, an-up
rcquircmcr~ts i'or the Property.
C. Covenantor has :o.~...d~e'J the investigation and has tmdertaken certain concctivc
mcasufP~
use restrictions am obsmved. ~
D. A topolpalAiad sun~ illuslmtinB the Iocatimt and plnccmem of imlmeled soils mid
the depth ot'the cletm soil cap mt dm Propmt¥, is mtached hereto. F. xhibit "B" ired ~ully
incorporated by this reference. Tim propose oftbe mr,ey dale is te provide guidance for the
set forth in this covemmt. Ti.e survey data should nat he treated,es conc4usive documematbn
the pre'sc, ace or absence oi'llt---~ua Mattf.:sl~, nor should the survey data be used as
substitute For any parties* inde~ndcm.dmdililpmoe or investilpuian.
Covenant and £tsviroameatal RasleJcIIon . 12JBA7. Pa~.e Z
Order: 66 Description: 98.13813 Page 3 of 26 ,, Comment: J COST
E. In addition to the Property described in ..p.'ction I. I I hcrco£ Covcnantor is thc owner
of approximately 120 m ofmljoininB property ("Offdmro Property") located entirely within
the Sa~ Fnmei~p flay. Such ail'share property is the subJ,..ct' of RWQCB Order No. 06.102, and
such propcny is thc subject °l*a scl,mmic d,.'clmralion and c(wenunl hetw,:cn RWQCli and
Covenantor. The I'mpcriy descdhed herein (Recdon I.I ! ) is not intended to he affected by d~c
nllkhore covcnunt, and thc Oflkhorc ~mpcny is not intended lo he affected by this Covenant.
Notwithstandin§ thc IhregoinB uny Own,..r who constructs, tccons~ucts or replaces Ihe pdmu~'y
storm drain out£u{{ system in the area as depicted on F. xhihit "W', shnl{ do so widt ca~e, so d,ut
the disruption al'offshore sedime,talien is rem~mnbly minimized.
F. Prior to the n.'cordalion at'this covenant, Covcnantnr ham cau.~d the Property to
be lelplly subdivided, fit{bi pmeds efhma d~bed on F. xhibit "A" were created as a result of
thc sulMivisian. 'lite Prep~flj ylellMly dc-~,:dbed on Exhibit "A" was comprised of appmximmdy
-
46 acres (former industrial use{ and a{q~oximatcly J.$ acres acquired by Covcnantor imm the
City ol'South San Fraucisco. bi
ARTICLE I
I)KFINITION~
1.1 RWOCII~ "RWQCB" d~l mcan the Regional Water Quality. Control Boa~d
shall include its successor agencies, irony.
1.2 Impmvemems., "Improvements" shall mean all buildings, mods, driveways.
rcgrading, landscaping, and paved parkinlt areas, c,nstructcd ~ir pla:ed npon any portion of thc
i'ropcny but shall not include mty buiidinB iulefior improvements.
1.3 Occulmanl. "(h:cupant" shall mcan holders ora leasehold interest in all or any
CavenaM and £avlronmeatal Reslrklkn - lb&97 - Pale
Order: 66 Description: 98.13813 Page 4 of 26 Comment: J COST
Imnion of land comprising thc Proper~y, which entitles tltc interns! holder lo the exclusive
Io ~cupy ali or any ~nion ofll~ I*m~ny in ~he fo~ o~ ground I~e or ~ space lc~ or
olhgr I~ For ~cup~y oFthc ~u~ level oFall or,ny ~ni~ oF1hc Pm~ny, provide,
however, "Occu~: shall not inctudc a holder o~* a ~cudty intc~st in thc Property, or
buildino ~c~ who~ Ica~hold inlcrcs~ docs nm include Ibc ~oh~ or obligation ~o co~tmc~ or
~)ler any Improvemem on thc Pmpcny or to cn~uc in l~h Movement or Excavation on thc
Pro~y, or nny {Chain whose space Ic~ does nm involve occupancy on the ground level of any
portion of dm Propc~y.
1.4 O~er. "Owner" shall mcan the ~ov~tor or i~s~ in ink. t.
including heir. ~d ~i~ w~ bom f~ title Io dl ~ any ~n~n of~ Pro.ny.
1.5 CI~ ~oil C~. Clean Soil Cap slmll m~n soil im~ned lo Ihe Pm~ny
I
pu~u~l Ia coati.alton legJng p~ums appmv~ by RW~B, and pl~ed o~r
ama of I~ Pm~ny in acco~ with t~ mquimmems el' R%VQCil ~'oufli~ in Secdon 3.
hereof.
1.6 ~xenvalion. "~xcava~ion" shall mcao Iht excavation ofea~h from ureas
~neath lhc Cle~ Soil Cap ns reflcelcd in Exhibi~ "1~"
1.? F~h ~oveg~em "E~h Movemenl" shall mean thc movemcm ofc~h
cxlmcled from ~low thc level oftJ~c Ctean Soil Cap I~om nny one Iocadon on ~hc Pro.ny
any other location.
I .R R~er O~er. "Foyer Owner" shall mcan ~y pc~n or cntily who held fcc
title to all or ~y ~nion ofthc pm~y at any lime pdor m Jnnua~ l, Iq97,
1.9 I?xcc~ Mineral. "Excess Malcrial" shall mcan any soil from
Co~'enaat and En,ironmcnlll Restriction - 12/~q'/- PJge 4
Order' 66 Description: 98. 13813 Page 5 of 26 Comment: J COST
Movement or Excavation which cannot be used ns fill material on the Propetl. y.
I.IO tla',au'dnus Material. A material shall be deemed "llnzardous Material" if it
would be classified ns "hazardous" pursuant to the crileda set forth in ~cdon 25260 of the
California I leahh and Safety Code.
i.I 1 Property. Thc Property consists of land tolaling approximately 51.5 acres
which is moa: particularly described on F. xhibit "A" attached berelo and Ihlly incoq~orated by
tilts rc£erence, but slmll not include an)' buildings now existing or to be constructed on the land.
I. 12 Parcel or l.ol: Parcel or I.ol shall mean a parcel or lot created as a part of
a legal subdivision of the Property which is the subject of this Declnrntion nnd Covenant.
!. 13 Shoreline Prolective Zone_'. Shoreline protcclive Zone means any area within
the Pro,ny which is located within I00 t'eet of the mean high lide line of the San Francisco
I
Bay (cloy. + 3.1).
ARTICLE II CO
EFFECT OF COVENANT
2.1 RestrictiOns to Run with the l.and. 'l'his Covenant set.s forlh, for the mutunl
benefit of the Property, tile Owners and Occul~'tnls thereof, tile Former Owners, tile People of
thc State of Cali£omin, by and ~ltrough RWQCB, protective provisions, covenants, restrictions,
and conditions (collectively referred to as "Restrictions"}, upon and subject to which the
Property and every portion thereof shall be improved, held, used, occupied, leased, sold,
hypothecated, encumbered, and/or conveyed. :Each and all of the restrictions dell run with thc
hind, shall inure to thc benefit of, and pass with each and every portion o£, the Property, and
shall apply to and bind the respective successors in interest hereof..Each and nil or' thc
Co~cniflt Ind Em, konmcnlll R~ri¢lion - 12~7 - P~Ke 5
Crder: 66 Description: 98. 13813 Page 6 of 26 Comment.* J COST
Restrictions am impoSed upon Ihe cntke Prupeny pursuanl It, Water Code secdons 13304 and
I .~267. F. ach and all ot'lhe Restrictions shall run wilh Iht land pursuant to Civil Code .%clion
1471. ~ch and all ol'lhe Reslriclions are enforceable by RWQCIL
2.2 Concurrence of Owners Presumed All Owners and Occupants of all or any
portion o£1he Property shall be decreed by their purchase, lease, or possession of such Property,
to have knowlcdgc of, and be in accord with, Ibc Ihrcgoing and Io agree for and among
themselves, and the agents and employees, ol'such Owners, Occupants, that thc Restrictions as
herein set forth must be adhcred ~o I'or the benefit ofCevenanlor, Formcr Ownc~ und £murc
Owners and Occupanls and thai Ihcir inlcrest in the Property shall be subject io thc Reslriclions
contained herein.
2.3 [ncoqmration Into rJccds and Leases. The Rcsldclions contained herein, CO
I
including, hut not limited to, thc provisions re~rdinll RWQC~B's authority lo cnfomc the O
Covenant, shall be incorporated by reference in each and every deed and lea.,~e of all or any !,1
portion of thc Property, with die exception that this paJ'agraph 2.3 shall not he inlerprcted to bi
require the RestrictiOns to be incorporated by roi'create in any lease in which the lenant, m~der
the terms ot~ the lease ~'ould not be deemed an Occupant oldie Property.
ARTICLE Iii
I)£V£L(IPMENT, U~E AND C~JNVRYANCR OF Tile PROPERTY
3. ! Restrictions on Use. Covenantor promises to reStriCt the use ~f the Property as
£ollows:
3.! .I The Owner shall maintain a combination or'paving, Yegetated clean soil. or
a building pad treating a minimum of tu,'o feet in depth, ~ ~ cap over any soil located on the
Order: 66 Description: 98. 13813 Page 7 of 26 Comment: J COST
Property which candies hc~..,y metals ar ~m h~~s ~ c~em~ians ~iem for
3. 1.2 In Ihc cvcnt any ~ ~~ ~ ~x~va~on is pm~ to ~cur u~n
thc Pro. ny, ur ~y ~dion thereof, I~ O~ n~ ~cu~nt or.id Pm~ny slmll:
A. NotiFy R~V~R oFsuch pm~ I~nh Movemem or ~xcavation
thirty (30) days pdor m Ibc ~ginning oFs~it [~nh Movcmem or ~cavation:
B. Di~cl nny conlmclo~ or su~ont~el~ en~sed in such
Movement or Excavation aclivilic~
and Ibc lawful di~liv~ of RW~.
'.
D. C~y ~h
to ~ils t~t am It~ ~ds or
tcm~ly during ~dods ofcon~lion, fioils
st~kpiled on ~he P~' I~ly~ ~s of~l~ ~v~ I~1: iii uy such
stockpiled ~ils n~ pmlm~ fm wi~, rain, slomt ~1~ munn nnd mntfl~ ~d ~y mher
cotillon ~ieh tony n~ the dis~
stockpiled ~ils ~ u~~ ~y iu ~co~ ~d~h Pa~nph 3.1 .I he,f, mimni~d
or ~.placed on ~he Panel or I.m w~ I~ I~u~i~ ~cu~ ~ !~ Movcmcnt ~u~d in
accordant wiqh I~ m~ctions ~t forth in Pm~ 3 of hcrcol: or Ims~n~ off t~ Pm~ny
for dis~l pumuam to Sub~~ E (ii)oflhis Paragmph 3.1.2, within qO days aRcr
Co~cflmnt and Eflvironmcnlal Rfltr/ction. I~i~g7 - Palte 7
Order' 66 Description: 98.13813 Page 8 of 26 Comment: J COST
completion of landscnpinl~ at the constmctlon site or within 90 days aNer cessation of
construction and landscapin8 work whether or not such constn:ction and Inndseapinl~ is
completed. Iffy soils that are Ilazardous Matedt~ls are moved from lite area nfthcir placement
on the Property to any other Pon:el or LOt, then such soils shall be placed on such Purecl or Lot.
i~raded nnd cowrcd with n minimum o1' Iw° feet of clean soil cap. Thc uhimate disposition m'
replacemcm of itazardous Materials stutll not be petTnittcd ~mywhcrc within the Shoreline
Protective Zone.
E. Dctcrmilt¢. hy .',ppmprintc lc.sting, whether nny F, xccss Material is
I lazardous Malcrial and il'such Excess Material is Haztirdous material, Illen: (i) relocate nny
such Excess Material on ti Lot or Parcel in accordance with Paragraph 3 el'thc Declaration or
(ii) dispose orany such ~cess Mattel in accordaflc~ with applicable In,v, includinl~ Title 22.
I
CaliFornia Code ol'Regul~ons, Section 66001. et ~g, No I lazardous Idatcrinls excavated Imm
tile Properly may be relocat~ beyond the boundaries el'the properly eXCCl~ as prOvidcd in
subparagraph D or subparagraph £ el'this Paragraph 3.1.2. bi
3. 1.3 The Properly, nd any petfion Ill,eel', may he used I'or commercial, industrial,
retail, auto sales, Imtel, off'tee and research and dovelopmeflt pUtTS~seL Tlm~tMperty shall not
be used for residemial purposes, ~ For htmmtu, schools I'or persons under 21 years of age,
or any permanently occupied human dhbitntiou without thc prior written approval of RWOCI3.
No Owner or Occupant of the Property or any poflion thereof'shall driiJ, hem. excavate or
otherwise construct a well I'or tht~ purpose of extracting water for domestic and potable uses
without the prior %vritten approval ofR, WQCB. This Covennnt is not intended to restrict use of
the Property except as speeiNeally set Forth in this I)ara§raph 3.1.3: provided, however the
Co~-cn~n! snd En~'iro. meltt~! Rest~lctlan . ! ZJl~7. P~ie I
Order: 66 Description: 98 13813 Page 9 of 26 Comment: J COST
requirements ol'Section 3. i.I hcreol'shall be I'oUo~ved without rc§ard to the particular use made
oi'the Property.
3.2 Conveyance o1' Prope~y. Within thirty (30) days after tbe closing ol'any gle.
lease, or other convcynnce of all or nny portion of thc Property, the former Owner (in the case of
a sale) or Occupant (in the case ol'a lease) and the then curt'cat Owner or Oecupan! ol'lhc
Prope.y. or part thereof, conveyed shall provide written nc, lice to RWQCB ortho nnme and
address ol'the l'ureh~er or Lessee of the Property, ~w part hcreo£, conveyed. RWQCB shall
not, by reason of this C.'ovcnant, have authorily to approve, disapprove, or otherwise affect any
sale, lease, or other conveyance of lbo Property except as mhenvise provided by law or as
expressly provided by this Covenant.
3.3 Enl'on:ement. CO
I
*--- 3.3.[ Failure of any Owner or Occupant lo comply with any ol'the requirements C3
· ~
set forth in ParaD'aph 3.1.3 above, shall be grounds for RWQCII, by mason ot'lhe Cm,,cnanl, to 0~
require ~he Owner or Occupant m discontinue the oll~:nding use ol'the Property in violation al' 91
Par,graph 3.[.3. Failure to observe fl~c Restrictions scl £c.rth in Paragraph 3. I shall be grounds
I'or RWQCI3 ~o pursue any remedy provided hy law kt enforce ti~e provisions of Paragraph 3.1.
Any costs reasonably and necessarily incuncd hy RWQCB to enforce thc provisions of
Paragraph 3.1 shall be recoverable front the Owner or thc Occupant of the Property determined
in the final dispositic~n of the enforcement ucti~m to have failed to observe thc Restrictions.
3.3.2 For purposes of Hca[th and .~at~:ty C~dc .~cction 25358.9, thc remedial action was
approved by the RWQCB and the R~VQCI3 determined ~hat thc remedial actic.n complied with
all laws, rules, regulations, standards, ~nd requirements, criteria or limitations applicable to thc
Covceaa! end Em,'lronmenlal Re~lrkflon. I ~/~/97 - Pale 9
Order· 66 Description' 98, 13813 Page 10 of 26 Comment: J COST
construction, operation and closure ol'the type oF facility at the Property.
3.3,3 Neither Covenanlor, Owners or Former Owners slmli have any obligalion to
cnl'orce or to police the observance ol'the Restrictions set forth herein by olher Owners ofthe
Properly or any portion ther~f. This Covcn~t shall not c~eate any pdvate right ol'~ction
against Covcnantor, its successors or Former Owners, or any other Owner or Occupant of thc
Property or any portion thereol:
3.3.4 Wilhin thirty (30j d.'.ys nl~er receip~ ora xwitten request fi'om any Owner or
Occupant of thc Property or any porlion thereof, RWQCB shall provide to such Oumer or
Occupant n written statemem, substnminlly in the foml attached hereto ns Exhibit C, indicating
whether to RWQCB's knowledge such Owner or Occupant is operating in compliance with the
provisions of this Covenant, and such confirmation shall be conclusive as of the date prepared.
If any Owner or Occupant fails to receive such confirmation within said 30 day pednd, any
interested pan), ma)' conclusively presume at that time that RWQCB has no knowledge of any
failure of Owner or Occupant Io comply with the Restrictions imposed by Ibis Covenant. This
shall no! preclude RWQCB from dclermining at n subsequent time that there h,'c~ been n failure
~o comply wilh such Rcslrictions.
ARTICLE IV
VARIANCE TERMINA. TION AND AMF, NiIMENT
4. I Variance. Any Owner, or with the Owner's writtcn consent, which shall not be
unreasonably withheld, any Occupanl, of the Property or any por6on thereof, may apply to
RWQCB for a xwiuen variance from Ihe provisions of Ihis Covenanl.
4.2 Termination. Any Owncr, or with thc Ow~cr's written consent, which shall not
Coat. an! end Ens'iroumentll Relldcflen . 12~/97. P~,~e I0
Order' 66 Description' 98. 13813 Page 11 of 26 Comment: J COST
be unpeasonab|y withheld, any Occupant. of the Property or wy portion thereat', may apply to
' RWQ(?B I'or a terminntion of the Covenant ns it applies to nil or nny portion ofthe Property
o~,mcd or o~upied by th~ applicant.
4.3 Amendment. This Covenant may be amended from time to time ina writing
signed by the authorized representative at' RWQCB, or his or her designee, nnd nil of the then
Owners et'the Property, or nny portion thereat'which remains subject to the Covenant. Any such
amendment shall be elTective only upon the date nny such amendment is filed for recording in
thc olticin[ records of thc Counly of Snn Marco, State of Califomin. Unless this covenan! is
terminated in accord with Section 4.2 hereof(ns it applies to all or any portion of the Property)
no variance or amendment hereto shall alter th~ provisions set Ibrth in or in Sections I.I - I.I 3,
Article II or Article ill hereol'.
_ 4.4 Term. Unless terminated in accordance with paragraph 4.2 above, by law or
othcnvise, this Covenant shall continue in effect in perpetuity.
4.5 RwOCB Costs. Any applicant seeking a variance or termination of this covenant ~.,~
shall pay tile RWQCB'nll reasonable costs incurred by the RWQCB in pmcessin§ thc
application. *
ARTICLK V
~ MISCKLLANKOUg
5.1 No Dedication Intended. Nothiug set ~'orth herein shall be construed to be a gift
or dedication, or alter of a gil~ or dedication, al'thc Property or nny portion thereof to thc general
public or for nny purposes whatsoever.
5.2 Nn~ices. Whenever any person shall desire to give or serve any notice, dentand.
Covenant and Eflvlronmtnta! Rt~tr~tti0n. I ~97 - Page I I
Order: 66 Description: 98. 13813 Page 12 of 26 Comment.' J COST
or other communication with respect to this Covemml. ~eh such notice, demand, or other
communicmion shtdl be in.wridal lind droll be dccmcd effective ti) when delivered, il'pc~onally
delivered t*o t*b~n bela8 ~n.%'d or to tm officer of'~l cmpomto Imrty bcini sc. wed or
ofn government ~.gency being served, or (ii) three (3) business d-ys rLIter dclmsit in thc mell if'
mailed by United States mail. postage peid ccflificd, return receipt requesled. Any p,,fly mfly
change its address by notice to thc other pa~y in thc mflflncr set forth above. The foliowin§
addresses shall bc cffcclivc os of thc dmc of this envenom.
C(wcnantor: Day West Coq,',:. In. I.. C.
~ F~i~ CMi;omia 94103
COPY TO: ~ ~ ~ 0
~ · O'K~f ~
I~ OR 07401 bi
RWQC~: AIt~t~: I~c~mivc Officer ~
O~1~. C~. 04612
5.3 Partial InvMidib:. Ifat*y provision of thc Covenant is delem~ined Io he invalid
lbr any rep. son, the remaining portion shall remain in fidl force .nd effect os if such portion hfld
not been included herein.
5.4 Article Hcndinl,,S. I leadinp fit the beginning of each article of this Covenant.
arc solely for thc convenience of the paflles and arc not a pan of thc Covenant.
5,5 Recordation. This instrument shall be executed hy all Owners of the Property
and by the ,~uthorized representmive of R~,V(~H~I! or his or her desil4nee. This instnlment sholl hc
Order: 66 Description; 98. 13813 Page 13 of 26 Comment: J COST
filed by thc Covenantor for recordin§ in the O~cial Records or the County of San Malco. State
of California wilhin Ica (10) day, al~er the date Covenantor receives the in~rument executed hy
RWQCB. Cove~tor shall provide RWQCB a copy of thc Covenant marked as received t~r
recording by the County of San Malco. [Jpon receipt of the Covenant marked as n:cordcd,
Covenantor sha[i provide a copy of such document to RWQCB.
5.6 F. ffeetive Oa~¢. '[his Covenant shall he effective upon such date that the
Covenant is fully executed by Covenantor and RWOCB.
IN WITNESS WI IERF. OF, thc parties execute this C/~vcnant as ufthe date scl fotlh
above. / *
REGIONAL WATER QUALITY BAY'+~ /~ COVE, L.L.C.
-By: Lore,tn K.n.rsami.. ~....'y~.,3~ ~. ~,~
. ires C. Cannot
Title: KxeculiveOffieer Tille: ~,~,~,~, e,.ae. ¢,~v,J ~,,.c. ¢0
bi
State of California )
Personally appeared the above-named Loretla K. Bar, ami,n, who bcin§ first
duly sworn did say thai she is the Executive Officer of Ibc Re§ionul Water Quality
Control Board and that this inslrumcnI was signed on behalf of said Boar~l~
Bcfore mc: ~ _ ~ /1/)
Notary Public for Cahfornia
and Environmental Res~rktion - IMIJ~? - Pale
Order' 66 Description: 98. 13813 Page 14 of 26 Comment; J COST
State of Oregon )
) ss
County ot'l~ne )
Personally/appeared the above-named'thomas C. Connor, who being first duly
sworn did say that he is a member of Black Canyon, L.L.C., which is a member of Bay
West Cove, L.L.C. a California limited liability company and that this instrument was
signed on behalf of said company by aUthQrity of its members and each ofthem
acknowled§cd thc foregoing instrument to bc its volumary act nnd deed.
Before me:
~ I~I~11~.~ · My Commission expires: Ic.,f02~*.,~ o,., 1
Order.* 66 Description: 98. 13813 Page 15 of 26 Comment: J COST
E~BI~ A
Order' 66 Description; 98. 13813 Page 16 of 26 Comment: J COST
EXHIBIT
Parcels 1-8 of Bay West Cove Final Subdivision
Map entitled "Parcel Map 97-027" as platted and
recorded at:
Series 98008274, Volume 70 of Parcel
Maps, Pages 33-40 of thc Ofticia[ Records
of' San Marco County.
Order' 66 Description: 98. 13813 Page 17 of 26 Comment: J COST
BXflZBZ'i~ G
Data
Dear :
This is to noti~ [Pmpmy Ow&r/Occupant| itt rcspoGs¢ to a Kquc~ ~tcd
~c p~u~t to t~ ce~h ~~ ~ Covert aK~tin~ U~ o(Pm~ dat~
(thc"Co~.'~ ~ , in Omci
Of Sm Maim C~, State Of~if~ ~ p~.. of ~k . , ~t ~ R~o~ Wa~ G
Qualiw Control Bo~ hu no ~w~ of~y failu~ of [Pm~ O~/~cu~].to ~mply L,J
wi~h thc Kcs~cfions im~ by ~ Cov~l. [or RW~G ~ ~wlcdEc of Ibc ~ollo~n~ ~L
.] in ~vicw o(j~ o~al ~o~s and h~ mode no other inquires and ~
made no ins~c~ion o¢~hc ~y o~ ~ [Pm~y O~crl~cup~t].
REGIONAL WATER QUALH'Y CONTROL BOARD
By
/
Order: 66 Description: 98.13813 Page 18 of 26 Comment: J COST
Order' 66 Description: 98. 1381'3 Page 19 of 26 Comment: J COST
~rHr~r r;r~ rh~r-rinh'~n' qR 1,~R1,3 Paae 20 of 26 Comment; J COST
Order: 66 Description: 98. 13813 Page 21 of 26 Comment: J COST
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Order: 66 Description: 98.13813 Page 22 of 26 Comment: d COST
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Order: 66 Desc~ption: 9813813 P~ 23 of 26 C~ment: J COST
Order: 66 Description: 98. 13813 Page 24 of 26 Comment: J COST
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EXHIBIT B
Order: 66 D~'~crip~i(~n: 98.13813 Page 25 of 26 comment: J COST
Order' 66 Descri~)tion' 98 13813 Page 26 of 26 Comment; J COST
Exhibit K
TRANSPORTATION DEMAND MANAGEMENT
REPORTING REQUIREMENTS
In accordance with the Mitigation and Monitoring Program, Participant shall prepare an
annual Transportation Demand Management (TDM) report, and submit same to Agency, to
document the effectiveness of the TDM plan in achieving the goal of 35% alternative mode
usage by employees within the Project. The TDM report will be prepared by an independent
consultant, retained by City and paid for by Participant, who will work in concert with
Participant's TDM coordinator. The TDM report will include a determination of historical
employee commute methods, which information shall be obtained by survey of all employees
working in the buildings on the Property. All nonresponses to the employee commute survey
will be counted as a drive alone trip.
The initial TDM report for each building on the Property will be submitted two (2) years
after the granting of a certificate of occupancy with respect to the building, and this requirement
will apply to all buildings on the Property. The second and all later reports with respect to each
building shall be included in an annual comprehensive TDM report submitted to Agency
covering all of the buildings on the Property which are submitting their second or later TDM
reports.
The goal of the TDM program is to encourage alternative mode usage, as defined in the
Bay West Cove SEIR. The initial TDM report shall either: (1) state that the applicable property
has achieved 35% alternative mode usage, providing supporting statistics and analysis to
establish attainment of the goal; or (2) state that the applicable property has not achieved the
35% alternative mode usage, providing an explanation of how and why the goal has nOt been
reached, and a description of additional measures that will be adopted in the coming year to
attain the TDM goal of 35% alternative mode usage. If after the initial TDM report, subsequent
annual reports indicate that, in spite of the changes in the TDM plan, the 35% alternative mode
usage is still not being achieved, or if Participant fails to submit such a TDM report at the times
described above, Agency may assess Participant a penalty in the amount of Fifteen Thousand
Dollars ($15,000.00) per year for each percentage point below the minimum 35% alternative
mode usage goal. In determining whether a financial penalty is appropriate, Agency may
consider whether Participant has made a good faith effort to meet the TDM goals. If Agency
determines that Participant has made a good faith effort to meet the TDM goals but a penalty is
still imposed, and such penalty is imposed within the first eight (8) years of the TDM plan
(commencing with the first year in which a penalty could be imposed), such penalty sums shall
be used by Participant toward the implementation of the TDM plan instead of being paid to
Agency. However, if a penalty is imposed beyond the first eight (8) years of the TDM plan,
Agency may in its discretion determine to either retain such penalty sum or require that such
penalty sum be used by Participant toward the implementation of the TDM plan instead of being
paid to Agency. Notwithstanding the foregoing, the amount of any penalty shall bear the same
......... relationship to the maximum penalty as the Completed Improvements to which the penalty
applies bears to the maximum amount of square feet of Improvements which are permitted to be
constructed on the Property according to any approved precise plan(s) for the Property; for
example, if there are only 200,000 square feet of Completed Improvements on the Property
included within the TDM report with respect to which the penalty is imposed, the penalty would
be determined by multiplying Fifteen Thousand Dollars ($15,000.00) times a fraction, the
numerator of which is 200,000 square feet and the denominator of which is the maximum
amount of square feet of Improvements permitted on the Property according to any approved
precise plan(s) for the Property; this amount would then be multiplied by the number of
percentage points below the 35% alternative mode usage goal.
Participant may submit any of the reports required herein in conjunction with other
property owners to whom the provisions of the Mitigation and Motoring Program regarding
TDM apply. In the event that Participant submits a TDM report along with other property
owners, the property addressed in such report will be evaluated as a whole in determining
whether the TDM requirements have been met and whether a penalty is appropriate. If a penalty
is imposed in such circumstance, the penalty will apply collectively to Participant and such other
owners of the property addressed in the report being evaluated. If instead Participant submits its
own report addressing only the Property, or portion thereof as applicable, then the Property, or
portion thereof as applicable, will be evaluated independently in determining whether the TDM
requirements have been met and whether a penalty is appropriate. If a penalty is imposed in such
circumstance, the penalty will apply to Participant only.
Exhibit L
PREVAII,ING WAGE POI,ICY
-~08 BEYER Fax : Z~lS-S??-%251 Oct. 2? '00 13:57 P.02
-- E&CD DEP?,
~SOC~iO~ ~O. 15-97
~DEVELOP~T AGENCY.CITY OF SO~H SA~ F~NCISCO, STATE OF C~O~
A ~SOL~ION AFPKOV~G A F~VAIL~G WAGE POUCY
APPLICABLE TO ~DEVELOPMENT A~A PROJECTS W~CH
~ATISFY SpECIFIeD
WHEREAS, the Building Trade~ Council of San Mateo County has requested Ihat the Agcacy sdopt
a Prevailing Wage Policy to .require the imposition of'n Prevailing Wa$c requircrncnt on certain
redevelopment projects; and
WHEREAS, the Redevelopment Agency desires to adopt thc policyl
NOW, THEREFO1U~, BE IT RESOLVED by d~¢ South San Francisco Redevelopmcnt A~n~ timt
it hereby approves d~e Prevailing Wage policy attached hereto as E.xhibit A.
! hereby ~nify mat lbo forc~inl Rgsolution x~s rcsularly introduced and ~%pt~l by d~
Po~development Agency of the City of Somh San Frnncisco at a regui a r meeting held on the ~
dny o£ Novemb~.~ 1997 by the following vote:
AYES: Boardnwnbers ,lames L. Datzman. Eugene R. ~11tn, 4ohn R.
Penna and Chairman ,loseph A. Ferq~kes
NOES: NOI~
ABSTAFN: None
ABSENT: Boardmemher Rnber~
ATTEST: /s/ Barbara A. Battaya
Clerk
C:~vlODEIv~REVAILI.RSO
415-877-%25!. Oc,c px '00 ].$:S7 P.OS
EXHIBIT A TO RESOLUTION NO. ).5-97
PREVAILING WAGE POLICY
CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY
I, GENERAI. POI.ICY. All worlcers performing construction ~vork for a
project covered by Section (2) hereof, from the commencement of construction until
t. he issuance of a final Certificate of Occupancy shall be paid wages not less than the
per diem rate determined to be the prevailing wage rate by the Director of the
California Departme,~t of Industrial Relations ~aursuant to California Labor Code
Section 1773 ct se~o., or any successor statutes. The total prevailing wage rate shall
be paid directly to thc xvorker in a cash equivalent as wages, but if the worker is
subject to a collective bargaining agreement, thc wages shall be disbursed in
accordance 'with the orovisions of such collective bargaining agreement.
Construction ~vork includes all construction of the building core and shall. It
shall also include all tenant improvements for such project if a building permit for
such improvements has been issued no later than one year after City's approval of a
certificate of occupancy for the building shell. Also included are public works that are
wlthln the customary jurisdiction of the construction trades and crafts, xvhcther
perforated on or off the project site. Work done off the site on materials to be
assembled in the project at a later date is not covered by this policy, but the work of
assembly of such materials on site is covered.
2. PROJECq' SIJBJ~*CT TO PREVAIl.lNG WAGIR POLICY, The
Prevailing Wage Policy shall apply to any construction project with a total
con:tructlon cost, Including tenant improvements, of $100,000 or more meeting the
criteria set forth in (a), (b), (c) or (d) below and not made exempt from the policy by
(e) below:
(a) Vv'here a constl-~c~iol~ proiect is subsidized directly or indirectly
by public funds in the amount of $ 100,000 or more pursuant to an agreement with
thc Agency.
(b) Where a construction project is financed in whole or in part by
~he issuance of Agency bonds.
(c) Where a construction project is on !and owned by the Agency or
!and conveyed or leased to the landow~aer or developer by the Agency.
90~ :~EYEE ~ ..... ~ax : ~15-87'?-525i Oct'2? ~O0 ~5:5¥ P.06
i
' ' (d) Where the construction project is the subiect o£ a Development
~nd Disposition Agreement, az,. Owner Participation Agreement xvhere the Agency has
provided direct or ir~direct financial benefit to the owrler, or a Development
(e) The Prevailing Wage Rate Policy shall not apply to any of the
following:
(1) Construction Projects consisting solely of tenant
~mprovements if the building permits for such work are issued more thin one year
after a Cer0fieate of Occupancy has been approved for the building shell:
;2) _;or the remodeling or rehabilitation of any building,
structure, or site improvenaent sin existence as of the date this amended policy is
adopted;
($) Any project where Federal and State law prohibits any
imposition of a prevailing wage requirement;
(4) Any project constructed using public employees;
(5) Construction of four or fewer single famil)t residences;
(6) Rehabilitation of multi-family housing of seven or fewer
units financed by Community Development ]Moek Grant funds or of eleven or fewer
units financed by Rental Rehabilitati. on Progran~. funds:
(7) This policy shall not apply to supervisory, managerial or
secretarial personnel, to persons employed in the rental, operation or maintenance of
the project, or to any person employed in a }ob classification for whicl~ no wage
deterrnlnation is issued..
3. ~EMPI.OYEF. S COVEKEI'). The prevailing Wage Policy shall
apply ¢..o al! workers (hereinafter sometimes referred to as %mployees") performing
construction work for the developer, the general contractor, or subcontractors or
~ther contractor engaged in construction of the Project by the developer, ineIuding
*,.heir successors and assignees.
4. PREVAII.ING WAGE I')ETERMINATION, Prevailing wage rates for
each emplOyee shall be those wage rates as determined and published periodically by
BOB BEYE? ?ax : ~15-877-5251 Oct 2'? '00 15:57 P.07
the Department of Industrial Relations pursuant to Section 1773 of the Labor Code.
5. PAYROI I. RF. CORI~. Any developer, general contractor,
subcontractor or other contractor sub}cci to this policy shall maintain and compile
accurate and complete payroll records. Certified copies of the payroll records shall be
available for inspection at all reasonable l~ours at a local office of the employer.
Copies of the records shall be provided promptly upon request by a representative of
The .Agency. Upon request of any ,.yorker- or his or her authorized representative or a
member of the public whose t:as a reasonable belief that employees covered hereunder
~re not being paid prevailing xvages, tile City shall request certified copies of the
payroll records. Any worker, his or her authorized representative, or the public may
also request a copy of the records from the Agency. The addresses and Social
Security numbers of employees may be masked or deleted so as to prevent disclosure
~n copies furnished to the public. The failure to provide complete payroll records
upon such request shall create a presumption that prevailing wages have not been
paid.
6. APpPd:NTICFS: Nothing contained herein shall prevent the
employment of apprentices, as defined in Chapter 4, Division 3 of the Labor Code.
Eve~ such apprentice shall be paid not less than the standard ~vage paid to
apprentices under the regulations of the craft or trade at which he or she is employed.
The employment and training of each apprentice shall be in accordance with the
provisions of the apprenticesBip standards and apprentice agreemenu under which he
or she is in training.
7. MONITORING. The Prevailing Wage Policy will be monitored by the
Agency, but th~ Agency assumes no responsibility regarding the completeness or
accuracy of the payroll records that may be submitted to it.
8, I~RF. ACH: LIABILITY FOR UNPAID WAGES. The employer shall be
liable to the employee for tmpaid prevailing wages or any portion thereof, and
including, for example, overtime wages.
9. 1LNFOR(~I:.MFNT.
(1) In addition to any other rights provided by California law to
recover compensation, a worker that has been paid less than the prevailing wage rates
shall have a right to commence an action or proceeding against his or her employer
for the difference between tile prevailing wage rates and the amount paid to such
worker for each calendar day or portion thereof for which the worker was paid less
3
,BOB BEYER Fax : 415-877-525! Oc~ 27' 'OO i$:57 ?.08
than thc compensation required to be paid under tl~e provisions of this policy. No
Issue other than that of thc liability of the employer for the amount of unpaid wages
alleged due shall be dctcnnined in such action or proceeding, and thc burden shall be
on the employer to establish that the amotmts demanded are not due. A worker
recovering any or all of the ~vages claimed to be due shall recover his or her costs and
~ ,
attorneys' fees In secunng such recovery.
Nothing in this section shall preclude its enforcement by the California
Division of Labor Standards £nforcement.
(b) The Agency shall include a requirement for compliance with the
policy for proiects which are subject to the prevailing xvage requirement in any
Dispositiov. azxd Development Agreen~ents, Oxxmer Participation Agreements where
the City is providing a financial bes~efit to the oyster, lease agreements, or sale
agreements. In addition, no Agency funds shall be paid nor shall the proceeds of any
bond issuance be released for projects subject to the prevailing wage requirement until
the person undertalcing the proiect has executed a xvritten agreement to comply with
this policy,.
_~ _ 10. INTF-RPRETATION OF POI.ICY. Where the application of this policy
in a' given circumstance is unclear, the Executive Director of the Redevelopment
Agency may refer to statutes, regulations and precedents that apply to the
determination and payment of prevailitxg xvages on public worlcs projects 'of public
agencies in California, and base a detem~ination on the mostiy nearly applicable rule.
C.NMOD~M~P I~"VAI L! .'WG E
4
Exhibit M
EASEMENT AGREEMENT
· , ' , ~.CO~G ~Q~ST~D ~Y: Recor~d In Official Records
County
~,S, S~- ~ Marr~n Slocum
... ~ssessor-Coun~ Cterk-Recorder
Recorded By BEVERZD~E ~ DZ~OND P C
I Ill
C. D~el ~r, Esq.
~ Depa~ut
~.S. Stee~ G~oup
600 G~t Street, ~
(Sp~e A~ve ~is Line For ~eco~'s
EASE~ AG~E~
THIS EASEMENT AGREEMENT (this "Agreement") is made effective as of this,
thc,,~/'~day of September, 2000, by and between SLOUGH BTC, LLC, a Delaware limited
liability company ("Grantor") and U. S. STEEL GROUP, a UNIT OF USX
CORPORATION, a Delaware corporation ]ocated at 600 Grant Street, Pittsburp~,
Pennsylvania 15219 ("Grantee").
WITNESSETH:
WHEREAS, Grantor is the owner of the real property described as follows, located at
the northeast comer of Veterans Boulevard and Oyster Point Boulevard in the City of South San
Francisco, California (the "Property"):
All that real property situated in the City of South San Francisco, County of San
Mateo, State of California, more particularly described as follows:
Parcels 2, 3, 5 and 6 of Bay West Cove Final Subdivision Map entitled "Parcel
Map 97-027" as platted and recorded at Series No. 98008274, Volume 70 of
Parcel MaPs, Pages 33-40, Official Records of San Mateo County;
and
WHEREAS, Grantee has requested an Easement as identified hereinbelow from Grantor,
and Grantor is willing to grant such Easement (subject to all of the te, h~s of this Agreement), in
order to facilitate Grantee's anticipated implementation of certain environmental remediation
work involving thc OffShore Property (as defined hereinbelow) pursuant to Order No. 96-102
(and any revisions thereto) of thc Regional Water Quality Control Board (thc "RWQCB"),
which Easement shall run with the Property for the specific purpose(s) identified and discussed
in this Alp'cement;
NOW, THEREFORE, in consideration of ail the covenants, terms, and conditions
herein contained, and intending to be legally bound hereby, thc parties hereto do alp'ce as
follows:
DOCE~;~rrA'RY
~one,, no co'n~:l.d~a£:Lon.
84951L3003\0054
22! 848v!
Section 1 - Granting Clause / Purpose.
(A) Subject to all of the terms of this Agreement, Grantor does hereby grant and
convey unto Grantee, for the benefit of Grantee and its contractors, representatives and assigns, a
non-exclusive easement and right of way (the "Easement") in, through, over and across the
Easement Premises described in Subsection I(B), which Easement shall be used for the purposes
set forth in Subsections I(D) and I(E) in connection with the anticipated removal of sediments
from the Off Shore Property and performance of environmental rcmediation activities in
accordance with the work plan approved by the RWQCB pursuant to RWQCB Order No. 96-102
(and any revisions thereto) (collectively, the "Off Shore Remediation Work"). Grantee shall
use the Easement only for the purposes described in Subsections I(D) and I(E).
(B) The portion of the Property which is subject to the Easement (the "Easement
Premises") is more particularly described in Exhibit A attached hereto and incorporated herein
by this reference.
(C) The real property from which sediments may be removed by Grantee as part of
the Off Shore Remediation Work (the "Off Shore Property") is more particularly described as
follows:
All that real property situated in the City of South San Francisco, County of San
Mateo, State of California, and described as follows:
Being the "REMAINDER PARCEL" identified and more particularly shown and
delineated on Parcel Map No. 97-027 Bay West Cove, prepared by Freyer &
Laureta, Civil Engineers, which is recorded in the San Mateo County Records at
VolUme 70.of Parcel Maps, at pages33-40,
Containing 98.18 acres more or less.
(D) - Subject to all of the terms of this Agreement, the Easement and the Easement
Premises shall be use. d for vehicular and pedestrian access, ingress and egress to and from the
Off Shore Property during the implementation of the Off Shore Remediation Work by Grantee
and its contractors, representatives and assigns; for staging and use of equipment and materials in
connection with the Off Shore Remediation Work, including (but not limited to) containment
boxes, excavation equipment, working platforms and other necessary equipment and materials to
accomplish the removal of sediments from thc Off Shore Property and placement of the removed
sediments in containment boxes and trucks for stabilization, sampling, holding and transportation
off-site; and for staging of fill material to be placed on or in the Off Shore Property.
(E) In addition, treatment of water in a self'contained treatment device prior to
discharge into San Francisco Bay and construction and use of temporary, above-ground cells for
containment, stabilization and sampling of dredged material and movement into boxes and trucks
' for transportation off-site shall be allowed (i) during 2001, in Area B of the Easement Premises
and in the portion of Area A of the Easement Premises lying southwesterly of the northwesterly
ES Pa;e: 2 of' 18
221848vl
--.. extension of the northeasterly line of Area B, and (ii) during 2002 (if applicable), in all of Area A
of the Easement Premises.
(F) Notwithstanding the foregoing provisions, the parties acknowledge and agree that
this Easement Agreement and the conditions set forth herein are applicable only to the exercise
of the rights and Pri~leges granted herein. This Easement Agreement and the conditions herein
do not impose upon c. vrantee any obligation to conduct or perform off shore remediation of
sexiiments within the Off Shore Property. Moreover, the conditions and obligations applicable to
the exercise of the rights granted herein shall apply to and bind the parties only.to the extent that
Grantee actually exercises the Easement rights granted herein.
Section 2 -Fencin~ Ind Screening.
(A) Upon commencement.of activities on the Easement Premises by Grantee, Grantee
shall at its sole cost and expense erect or cause to be erected temporary fencing of man-made
construction site type materials to separate the area in which Grante~ is conducting such
activities ~'om the remainder of the Property. The fencing shall be maintained throughout
Grantee's use of the Easement Premises to conduct the Off Shore Remediation Work hereunder,
at which time such fencing .shall be removed by Grantee pursuant to Subsection 3(A). The
design, materials and location of the fencing to be erected by Grantee shall be subject to prior
written approval by Grantor. It~ in the course of the Off Shore Remediation Work, the location
of any fencing erected by Grantee creates a material impediment to Gnmtor's construction and
de,~'elopment activities on'the porti°ns of the Property outside the Ea~. ement Premises, the parties
agree to negotiate in good faith relpmiing an appropriate relocation of the fencing by Grantee.
(B) In the event Grantee is unable to conclude its use ofthe Easement Premises to
conduct the OffShore Remediation Work by December 31, 2001 and Grantee elects to continue
to utilize Area A of the Easement Premises as provided in Subsections $(A)(2) and 5(A)(3)
hereof, the fencing shall then be relocated by Grantee to thereafter separate Area A from the
remainder of the Property, subject to the same le~h~s and conditions set forth in Subsection 2(A).
(C) If Grantor completes the construction of one or more buildings for Occupancy on
the portions of the Property outside the Easement Premises prior to the completion of all of
Grantee's activities in the Easement Premis~, Grantee shall, at or before the date of first
occupancy Of any of such buildings, modify the fencing described in this section to provide a
visual screen of temporary man-made fence-like material to block the view of Grantee's
equipment and activities in the Easement Premises from ground floor level. The visual screen
shall be maintained until the conclusion of all required restoration work hereunder, at which
time such screen shall be removed by Grantee pursuant to Subsection 3(A). The design and
materials of the visual screen shall be subject to prior written approval by Cn'antor.
Section 3 - Restorltion of Property / Compliance with Lsws / Conduct of Work.
(A) Promptly following the conclusion of Crrantee's use ofthe Easement Premises to
conduct the Off Shore Remediation Work, but in all events no later than the applicable
designated "By Date", Grantee shall perform and conclude its restoration of each respective area
221848v1 ES P~e*: ~ of lS
----.. within the Easement Premises. As to Area A, the date bY which restoration shall be concluded
(the "Area A By Date") is December 31, 2001 (except, the Area'A By Date may be extended to
December 31, 2002, as provided in Subsections 5(A)(2) and 5(A)(3) hereof). As to Area B, the
date by which restoration shall be concluded is December 31, 2001 (the "Area B By Date"). To
restore each respective area within the Easement Premises, Grantee, at its sole cost and expense,
(1) shall remove fi'om the Easement Premises all equipment, improvements (if any), dredged or
excavated materials, debris and other items and materials installed, constructed or deposited 'on
the Easement Premises by Grantee or its contractors, representatives or assigns or otherwise
deposited on or brought onto the Easement Premises in the course of Grantee's activities in the
Easement Premises, and (2) shall restore and return the Easement Premises, all improvements
located therein as of the date of this Agreement (such as the shoreline trail and related
improvements presently located in portions of Area A of the Easement Premises) and any
adjacent areas of the Property damaged by the activities of Grantee or its contractors,
representatives or assigns under this Agreement to substantially the same condition which
existed prior to the commencement of Grantee's activities under this Agreement, including (but
not limited to) remediation of any environmental harm to the Property or any portion thereof
arising out of or in connection with the Off Shore Remediation Work or Grantee's activities on
· the Easement Premises hereunder (except that, where improvements or modifications have been
made by or for the benefit of Grantor to any area which is then subject to said duty to restore, .
that area, if damaged by Grantee, shall be restored by Grantee to the condition of the area after
the modification or improvement by or for the benefit of Grantor).
-~- (B) Promptly after concluding the restoration of each resp_ective area within the
Easement Premises, as provided in Subsection 3(A), above, Grantee shall obtain, and deliver to
Grantor, a written report from the environmental consultant identified herein or an alternate
environmental consultant approved'by Grantor (the "Assessment Consultant") certifying, on
the bssis of reasonably comprehensive assessment and testing of thc applicable area of the
Easement Premises, and utilizing best Professional judgment, that toxic or hazardous materials
have not been left on the applicable area of the Easement Premises as a result of Grantee's
activities hereunder that would adversely affect the use or enjoyment of the Property or would
.require remediation under applicable laws. Grantee shall use its best reasonable efforts to cause
the Assessment Consultant to diligently pursue to completion the efforts necessary to produce
the written report and conclude the relevant assessment work for each respective area of thc
Easement Premises as expeditiously as possible following the completion of Grantee's use of
such respective area and performance of its Subsection 3(A) obligations therein. Thc
Assessment Consultant shall, at the request and expense of Grantee, conduct preliminary
sampling of the Easement Premises in accordance with a sampling plan prepared by Grantee and
approved by Grantor to assist in the Assessment Consultant's determination. In the event
Grantor and Grantee fail to reach agreement on the content of the sampling plan, then the
sampling plan prepared by Grantee and any proposals under consideration by the Grantor and
Grantee shall be submitted to the Assessment Consultant who shall determine the content of the
sampling plan..The sampling plan will include sampling locations and sPecifications for sample
analysis and will allow for the collection of split samples and oversight by the Grantee's and
~ Grantor's environmental consultants. For purposes of the determination to be made by the
Assessment Consultant, any toxic or hazardous materials existing on the Easement Premises at
the completion of Grantee's activities hereunder shall be irrcbuttably presurncd to have existed
221848v! ~0~ ~
ES P&lle: 4 of 18
" .. on the Easement Premises prior to conunencement of Grantee's activities hereunder ii'thc
existence of such toxic or hazardous materials is disclosed, and the nature, location and
concentration of such toxic or hazardous materials are substantiallY identical to those disclosed,
in the final report and test results filed with and approved and accepted by the RWQCB in
connection with the hcretOi`ore-completed onshore rcmediation work on the Property pursuant to
RWQCB Order N~ 96-102. The aforesaid Assessment Consultant's report, delivered by
Grantee to Grantor, shall be deemed by its merits to establish a rebuttable presumption that toxic
or hazardous materials have not been left on the Easement Premises as a result of Grantee's
activities that would adversely affect the use or enjoyment of the Property or require rernediation
under applicable laws. The parties hereby agree that Nancy Bice of Geosyntec (Walnut Creek,
California) shall be retained by Grantee to perform the duties of Assessment Consultant, unless
Nancy Bice is unable or unwilling to undertake that assignment; in which event Jim Strandberg
ofMalcohn Pimie Company (Oakland, California) shall be retained by Grantee 'to perform the
duties of Assessment Consultant. In the event both of the preceding choices for Assessment
Consultant are unable or unwilling to serve in that capacity, then Grantee shall retain an
environmental consultant approved by Grantor to perform the duties of Assessment Consultant.
Grantee shall indemnify Grantor for any loss or damages (including, but not limited to,
environmental harm) to the Property caused by or resulting from any failure of Grantee to restore
the Easement Premises and adjacent aress of the Property (if applicable) as provided herein,
including any damages to the Easement Premises and adjacent areas of the Property (if
applicable) resulting from Grantee's activities thereon, and all costs (including, but not limited
to, attorneys' and consultants' fees)reasonably incurred by Grantor to remedy said loss or
damage. -:.
(C) Grantee (1) shall obtain, at its sole cost and expense, all permits, licenses,
authorizations, approvals and certificates required to be obtained from any local, regional, state
or federal authority having jurisdiction over the Easement Premises and/or the Offshore
Remediation Work (including, but not limited to, the RWQCB, the U.S. Army Corps of
Engineers (the "ACOE"), the Bay Conservation and Development Commission (the "BCDC")
and the City of South San Francisco) with respect to the activities to be conducted by Grantee
under this Agreement; (2) shall comply, at its sole cost and expense, with all conditions and
requirements imposed by such governmental authorities in connection with the issuance of such
permits, licenses, authorizations, approvals and certificates; and (3) shall cause all the Off Shore
Remcdiation Work and any other activities of Grantee or its contractors, representatives and
assigns on the Easement Premises to be performed in compliance with all applicable codes,
ordinances, laws, regulations and orders, and, to the extent required by applicable law, to be
performed by contractors or consultants Who are duly licensed, certified or registered in
compliance with applicable, law. Grantor shall cooperate in all reasonable respects with any
applications by Grantee for any such required permits, licenses, authorizations, approvals and
certificates, provided that such cooperation (a) shall be at no expense to Grantor and (b) shall not
require Grantor to join in any applications as a co-applicant or otherwise to incur any risk or
responsibility for costs, liabilities or other obligations to any governmental authority or to any
contractor, consultant or other non-governmental third party in connection with the Off Shore
Remediation Work or the activities conducted by Grantee under this Agreement. Without
limiting the generality of the foregoing provisions, Grantee at its sole expense shall be solely
responsible for the handling, removal, disposal and storage of all soils, water, liquids, wastes and
other materials (whether or not toxic, hazardous or otherwise regulated under any applicable
laws) which are dredged, excavated or otherwise produced in the course of the Off Shore
Remediation Work and/or in connection with Grantee's activities on the Property, shall cause all
such materials to be removed fi.om the Property and managed or disposed of in compliance with
all applicable laws, and shall execute in Grantee's own name, identifying Grantee as the
generator, transporter and/or any other applicable capacity with respect to such materials, any
manifests or other documentation that may be required in connection with the removal and'
management or disposal of such materials in accordance with applicable laws.
(D) Grantee shall in all events make all reasonable efforts to conduct its activities
within the Easement Premises in such a manner as to avoid any delay of or interference with
Grantor's construction and development activities on the remainder of thc Property outside the
Easement Premises, and Grantor shall in all events make all reasonable efforts to conduct its
construction and development activities in such a manner as to avoid any delay of or interference
with Grantee's activities within the Easement Premises. Subject to the preceding sentence, (1)
Grantor shall be permitted to enter upon and use for the purpose of pedestrian and vehicular
access, ingress and egress in connection with its construction and development activities on the
adjacent area of the Property, the "Access Roadways" constructed by Grantee in the approximate
locations depicted on Exhibit A-1 attached hereto~ and (2) nothing in this Agreement is intended
to inhibit Grantor's ability, in'its sole discretion, to seek and obtain a "regionwide temporary
construction access permit" or equivalent authorization from the Bay Conservation and
Development Commission for use of the Easement Premises by Grantor in connection with its
construction and development activities on the areas of the Property outside the Easement
Premises, and Grantee agrees not to oppose or interfere with any application by Grantor for such
a permit or authorization, provided, Grantor provides to Grantee (i) advance written notice of
Grantor's intent to obtain the aforesaid authorization and (ii) copies of applications filed with
governmental authorities in connection with the aforesaid use of the Easement Premises
substantially concurrently with the filing of said applications and (iii) at least one (1) full
business day's prior telephonic or facsimile notice of any physical entry onto the Easement
Premises by Grantor or any of its contractors, represeniatives or assigns in connection with its ~'
construction and development activities on the Property.
(Iii) Grantee has advised Grantor thai Grantee wishes to self-insure for all risks,
liabilities and insurable obligations of Grantee (including, but not limited to, indemnity
obligations) arising out of or in connection with Grantee's activities under this Agreement, and
Grantor has agreed to permit such self-insurance by Grantee. As a condition for such agreement
by Grantor, without limiting any other provisions of this Agreement, (1) Grantee agrees to
indemnify, defend and hold Grantor, its property manager (Britannia Management Services, Inc.)
and its environmental consultants (G-eomatrix Consultants, Inc.) harmless fi.om and against any
and all claims, demands, actions, liabilities, losses, damages and expenses for injury, death or
damage to persons or property arising at any time out of or in connection with the activities of
Grantee or its contractors, representatives or assigns on the Easement Premises, except to the
extent caused by the negligence or the intentional or willful misconduct of Grantor or its agents
.-. or employees, (2) Grantee acknowledges and agrees that all equipment, materials, supplies and
other personal property of Grantee or of any of its contractors, representatives or assigns used,
held or stored on or about the Easement Premises during the term of this Agreement shall be so
1~18al2~ 11:47R
221848vl ES P&ss: S of ~
..... used, held or stored at the sole risk of Grantee and its contractors, representatives and assigns, as
applicable, and that Grantor shall have no liability for any loss thereof or damage thereto except
to the extent caused by the intentional or willful misconduct of'Grantor or its agents or
employees, and (3) Grantee shall require all contractors performing any work on the Easement
Premises to maintain comprehensive general commercial liability insurance coverage of not less
than $2,000,000 per occturence and $4,000,000 in the aggregate, and environmental impairment
insurance coverage of not less than $5,000,000 combined single limit per loss, naming, if
possible, Grantor, Britannia Management Services, Inc. and Geomatrix Consultants, Inc. as
additional insureds thereunder, and to maintain workers' compensation insuranc· coverage in at
least the minimum amounts required by law, including occupational disease coverage, and shall
provide to Grantor copies of certificates evidencing the existence of such required as to each
such contractor prior to the date the applicable contractor commences performance of any work
on the Easement Premises. For purposes of references in this Subsection 3(E) to the negligence
of Grantor or its agents or employees, the parties acknowledge and agree that Grantee is taking
the Easement Premises, for purposes of its exercise of rights under this Agreement, "as is" and
with all faults and existing conditions; that except as expressly set forth herein, Grantor has no
duty or 6bligation to Grantee or its contractors, employees, agents, representatives or assigns to
make the Easement Premises safe or suitable for Grantee's use hereunder, or to correct any
defects or conditions existing on the Easement Premises from time to time in order to make them
safe or suitable for Grantee's use hereunder;, and that with respect to any matters arising out of ·
alleged faults, defects or other physical cOnditions existing from time to time on the Easement
Premises, the exception set forth at the end ~f Clause (1) above shall apply only to the extent such
-- alleged faults, defects or other physical conditions arise from the actiye negligence or the
intentional or willful misconduct of Grantor or its .agents or employees..
(F) Grantee shall cause all work performed on or about the Easement Premises to be
performed in a safe, professional and workmsnlike manner, and in suCh a manner as to minimize
or avoid through reasonable and practical means any contact between dredged or excavated
materials and the soil of the Easement Premises. Without limiting the generality of the
foregoing, Grantee shall install and cause to be maintained in place throughout the duration of
Grantee's active use of the affected areas of the Easement Premises, in all areas within Area B of
the Easement Premises in which wet materials are intended to be staged, stored, treated or'
otherwise handled, and in the portion of Area A of the Easement Premises where the activities
allowed by Subsection I(E) hereof are conducted fi.om lime to time, and in any other portion of
Area A where a fixed unloading platform for submerged sediments is constructed and
installation is feasible, a temporary liner consisting of an impermeable material covered by a soil
or gravel cap. Until such time as Grantee's use of the Easement Premises for conduct of the Off
Shore Remediation Work commences on a substantially full-time basis, (1) Grantee shall give
Grantor, in care of Grantor's property manager, Britannia Management Services, Inc., at least
one (1) full business day's prior telephonic (at 510/834-7116) or facsimile (at $10/763-6262)
notice of any physical entry onto the Easement Premises by Grantee or any of its contractors,
representatives or assigns, and (2) Grantee shall give, or cause its consultants to give, Grantor
and its environmental consultants written reports no less often than monthly regarding Grantee's
progress in obtaining the Required Permits and preparing for any use of the Easement Premises
under this Agreement. During the period when Grantee's use of the Easement Premises for
conduct of the Off Shore Rcmediation Work is being actively, conducted, Grantee shall give, or
?
221848v1
~ P&~e: 0 of
"_ cause its consultants to give, Grantor and its environmental consultants on-site reviews no less
often than weekly regarding Grantee's progress toward concluding its use of the Easement
Premises for the conduct of the Off Shore Remediation Work. After Grantee has concluded its
utilization of the Easement Premises to conduct the Off Shore Remediation Work, Grantee shall
give or cause its consultants to give Grantor and its environmental consultants on-site reviews no'
less often than every~.~,,o weeks regarding Grantee's progress toward completing Grantee's
obligations under Subsection 3(A) hereof. At all times during the term of this Agreement,
Grantee shall cause its environmental consultants to make themselves reasonably available for
meetings or telephone discussions with Grantor's environmental consultants, as reasonably
requested by Grantor's environmental consultants from time to time, regarding the progress of
Grantee's preparations for and conduct of the Off Shore Remediation Work and Grantee's other
activities hereunder, to provide C2rantor's environmental consultants with copies ofal.l r .~orts
and applications filed with governmental authorities in connection with the OffShore
Remediation Work substantially concurrently with (or, where feasible, prior to) the filing of such
reports and applications with the applicable governmental authorities, and to make all other
sampling logs, test results and other documents and materials relating to the conduct of the Off
Shore Remediation Work and Grantee's other activities hereunder available for review by
Grantor's environmental consultants from time to time, and shall permit Grantor and its
environmental consultants to have reasonable access to Grantee's work site for purposes of
monitoring Grantee's progress on the work hereunder and performance of its obligations
hereunder. All references in this Agreement to Grantor's environmental consultants shall be
. construed to mean Geomatrix Consultants, Inc. or, in the event Grantor changes its
environmental consultants, any other environmental consulting firm. designated by Grantor by
written notice to Grantee.
(G) Grantee shall keep the Property free from any and all liens, charges and
encumbrances in connection with the Off Shore Remediation Work and Grantee's other activities
on the Easement Premises hereunder, and shall promptly and diligently take any and all actions
necessary to elimi,~nate, remove and release immediately any such hens, charges and/or
encumbrances that may arise or be asserted by any person or entity, regardless of the validity
· thereof or reason therefor. Grantor shall promptly inform Grantee in writing of any liens,
charges or encumbrances of which Grantor'becomes aware arising out of or in connection with
the OffShore Remediation Work and Grantee's other activities on the Easement Premises
hereunder.
(It) C-rantee shall notify Grantor promptly in writing of (1) any material injuries or
damage to persons or property occurring on or about the Easement Premises in the course of or
in connection with Grantee's activities hereunder, (2) any release of any hazardous substance or
material, hazardous waste, toxic substance or material or petroleum product on or into the soil of
the Easement Premises in the course ofor in connection with Grantee's activities hereunder
which Grantee is required to report to any governmental authority under applicable laws, (3) any
written notice to Grantee from any governmental authority regarding any claimed violation of
applicable laws; regulations or orders or the conditions or any applicable permits in the course of
or in connection with Crrantee's activities hereunder, and/or (4) any circumstances (including, but
not limited to, any notice fi.om any governmental authority) causing or requiring a material
change in Grantee's plans for the OffShore Rcmediation Work or for any other activities on the
8
221848vl
Easement Premises as previously disclosed to and approved by Grantor, or causing or requiring a
potential material delay in the conclusion of Grantee's use of the Easement Premises to conduct
the Off Shore Remediation Work or the completion of Grantee's obligations under Subsection
3(A) hereof. In addition to the written notifications required by the preceding sentence, Grantee
will discuss with Grantor's consultant any other observed releases of hazardous substance or
material, hazardous waste, toxic substance or material or petroleum product on or into the soil of
the Easement Premises in the periOdic on site reviews conducted in accordance with Subsection
3CF).
SeCtion 4 - Covenants Running With Land.
The F..asement hereby granted, the restrictions and obligations hereby imposed and the
agreements herein contained shall be easements, restrictions and covenants running with the ]and
and shah inure to the benefit of, and be binding upon, the parties hereto and their respective
heirs, successors and assigns, including, but without limitation, ali subsequent owners of the
Easement Premises.
~Section 5 - Compensation / Remedies.
(A) As part of the consideration for Grantor's execution of this Agreement, Grantee
agrees to make certain payments to Grantor pursuant to the following provisions (when and if
applicable):
(1) Grantee shall reimburse Grantor from time to ~/ime, subject to the
limitation set forth below, within thirty (30) days after Grantee's receipt of each written
request by Grantor for such reimbursement containing reasonably detailed summaries of
each period's billing activities, for the amount of (a) all reasonable attorneys' fees and
environmental consultants' fees incurred by Grantor from time to time, from and after
June 1, 2000, in connection with (i) the negotiation, documentation and execution of this
Agreement and of any subsequent amendments to this Agreement from time to time, (ii)~
Grantor's review of Grantee's work plans for the Off Shore Remediation Work and of
any proposed .changes in such work plans from time to time following C-rantor's initial
review thereof, and/or (iii) Grantor's monitoring of the performance by Grantee of its
obligations under this Agreement from time to time, and (b) any other reasonable
attorneys' or environmental consultants' fees reasonably incurred by Grantor from time
to time in connection with or as a result of this Agreement (other than in connection with
any legal proceedings arising out of or in connection with this Agreement, in regard to
which any recovery of such fees shall be governed by the provisions of Subsection $(E)
hereof).
(2) If after the timely receipt of all the Required Permits by the date set forth
below, Grantee actually exercises its rights under this Easement Agreement and utilizes
the Easement Premises for the purposes set forth herein, and Grantee thereafter fails to (i)
conclude Grantee's use of the Easement Premises to conduct the Off Shore Rcmediation
Work and (ii) complete performance of all of its obligations under Subsection 3(A) of
this Agreement by December 31, 2001 (the "Penalty Date"), and provided Grantor has
9
221548v1
not caus~ a mat~ delay of or mat~ly ~t~ed wi~ ~tee's acti~ties wi~n
E~cment ~e~ses by ~e ~nduct of~tor's cons~cfion. ~d development acti~tics,
~cn G~t~ s~l pay to ~tor ~ ~o~t ~u~ to $2~,~0 (Two.-Five ~ous~d
Doll~) (~e uExtension ~Ount~) w~ch s~ ~1 be p~d to ~tor on or before
J~u~ 8, 2~2; ~d ~e ~ A By Date for ~mplefion of~e Subs~fion (3)(A)
5(A)(2), ho~ev~, ~clu&ng.~ut not ~t~ to) pa~t of~e ~licable Ext~ion
~o~t, sh~l be ~~ ~ a ~t by ~tor to ~y delay b~ond D~b~ 31,
2~2 ~ ~e ~e of~ A of ~e ~~t ~s~ for ~mplefion of &e Off Shore
R~afion Work ~d of ~t~'s ~o~ce of i~ obligafio~ ~der subs~fion
3(A) offs A~~ or ~ a w~v~ or ~i~fion of~y ~d ~1 o~ ~ies of
to ~ely ~mplete i~ obligations ~d~ Subs~fion 3(A) offs A~mt ~d
re~t to ~e t~ation offs A~~t ~d of ~t~'s g~ to ~e ~e of~ea A
of~e E~ent ~ses in ~1 ev~ ~ of D~emb~ 31, 2002
Subsection 7(C) h~f. ~ ~dition to pa~t of~e Ext~ion ~o~t, in ~e event
~e ~ A By Date is ex~d~ to D~b~ 31, 2002, ~ ac~rd~ce
Subs~tion ($)(A)(2), ~d ~ is ~ble to ~nclude ~e ~c of~a A of~e
E~t ~s~ for ~e O~o~ ~~on Work ~d ~mpl~e i~ obligations .
~d~ Subs~fion 3(A),of~ A~~t by Ap~l 30, 2~2, ~m ~tee ~1 pay to
on May ~, 2~2, for',~emon~ of~y ~d ~~g for ~h sung mon~
conclud~ i~ obli~fi~ ~d~ Sub.on 3(A) h~f ~d
av~lable for ~e A~es~t ~~t to ~nclude ~c ~s~t
Sub~tion 3~) h~f, ~e ~ of$10,~ ~m ~o~d ~I1~) p~ mon& (~
"Delay ~ount~). ~e p~ ~Owl~ge ~d a~ ~t &e Ext~ion ~o~t ~d
Delay ~o~t ~ ~~le ~mat~, ~ of~e ~te offs A~~ of lo~es,
exp~es ~d'o~ d~g~ w~ch ~mr ~H ~ff~ ~ a
~plicable ~te set fo~ ~v, ~ &e ~lefion of~t~'s ~e of~a A of&e
~~t P~is~ for ~e ~o~c~ of~e OffSho~ R~iafion Work ~d ofi~
obligatio~ ~d~ Subs~fion 3(A) offs A~m~ but w~ch ~ ~ely to be
~possible to q~ti~ ~ ~ision. ~e ~v~ of~e Ext~ion ~o~t ~d Delay
~o~t sh~l be ~tor's ~1~ ~y for ~y delay ~ ~e ~ncl~ion of ~t~'s use
of ~ A of&e ~~t ~~ for &e ~nduct of&e Off Sho~ R~afion Wo&
~d ~e completion of~'s ob~gafiom ~d~ Subs~fion 3(A) of~s.A~t up
to ~ut not b~ond) ~e T~on D~e offs ~~t A~~t.
(3) ~e P~F Dat~ ~ fo~ ~ Subs~fion ~(A~2) ~ow ~d
~u~fi~ ob~gafion m pay &e E~ion ~o~t ~d &e Delay ~o~t (if
applicable) is b~ on &e ~pfion ~ ~t~, ~u~
pe~o~ce of ~e OffSho~ R~afion Work, including, but not ~it~ to: 404
ACOE Pe~ 401 C~ficafion ~m &e RWQCB, BCDC P~it, ~d Ci~ of Sou~
Fr~cisco Pe~it (all such p~, ~p~v~s ~d au~o~fions h~e~afier ~fe~ed to
10
221848vi
ES PaGe: 11 of 18
the "Required Permits"), and it is based on the assurance that Grantor will not cause a
material delay of or interfere materially with Grantee's activities within the Easement
Premises by the conduct of Grantor's construction and development activities. If, despite
the exercise of its best efforts and diligence, Grantee has not received all of the Required
Permits by March 1, 2001, or Grantor's construction and development activities cause a
material delay of or materially, interfere with Grantee's activities within the Easement
Premises, then the Area A By Date shall be extended until the Termination Date of this
Easement Agreement and the payment of the Extension Amount and Delay Amount shall
be waived. Nothing in this Subsection 5(A), however, shall be construed to extend either
the Term 1 Expiration Date or the Termination Date under this Agreement for any reason
whatsoever.
(B) The provisions of this Agreement shall be enforceable by causes of action for
equitable remedies including, without limitation, specific performance and injunction.
(C) Except where expressly provided herein, each and every remedy and right set
forth in this Agreement shall be in addition to each and every other right or remedy available in
law or in equity, it being the intention of the parties that each such right and remedy shall be non-
exclusive and shall not be deemed to exclude any other right or remedy.
(D) No delay or omission of any party in the exercise of any right accruing hereunder
shall impair any such.right or be couslrued to be a waiver thereof. No waiver of any pwvision of
this Agreement shall be effective unless in writing and signed by tho.party against which such
waiver is asserted or enforced. No waiver of any pwvision of this Agreement with respect to a
particular event or circumstance shall constitute a waiver of any'other provision of this
Agreement, or a waiver of the same provision of this Agreement with respect to any future event
or circumstance not expressly covered by the original waiver.
(E) In the event of any legal pwceedings arising out of or in connection with this
Agreement or any alleged breach of any terms or pwvisious hereof, the prevailing party in such a
pwceedings shall be entitled to recover its costs of suit and reasonable attorneys' and
consultants' fees incurred in connection with (1) such proceedings, whether or not prosecuted to
final judgment, (2) any appellate proceedings in which it is the prevailing party and (3) the
enforcement of any judgment rendered in its favor pursuant to such proceedings. For purposes
of clause (3) of the preceding sentence, the provisions of this Subsection 5(E) shall survive (and
shall not merge in) any judgment rendered under this Agreement and may be enforced in
separate proceedings following any such judgment.
(F) If at.any time during or after the term of this Agreement Grantee fails to perform
any of its obligations under this Agreement (other than the performance of the Off Shore
Remediation Work itself, which work shall in no event be subject to the provisions of this
Subsection $(F)) in any material respect and such failure continues for more than thirty (30) days
after written notice from Grantor to Grantee identifying such nonperformance by Grantee (or, in
the case of any nonperformance which cannot reasonably be cured within 30 days, if Grantee
either fails to commence a cure diligently, and in all events within 30 days, after written notice
from Grantor or thereafter fails to continue to pursue such cure diligently to completion), tben
ll
221848vI
· ' - ES P&ge: 12 of 18
:--' without limitation of any other rights and remedies that Grantor may have under this Agreement
or under applicable law, Grantor in its sole discretion shall have the right (but shall not be
required) to perform such obligations in whole or in part and, upon such performance, shall be
entitled to be reimbursed by Grantee from time to time, within thirty (30) days after each written
request by Grantor for such reimbursement (accompanied by documentation evidencing, in
reasonable detail, the nature and amount of the expenditures for which such reimbursement is
requested), for all costs and expenses, including (but not limited to) reasonable attorneys' fees.
and consultants' fees, incurred by Grantor in performing such obligations on behalf of Grantee.
The remedy described in this Subsection 5(F) is intended to be for the sole benefit of Grantor,
and the decision whether to exercise such remedy in whole or in part, in accordance with the
provisions of this Subsection 5(F), under any specific circumstances shall rest entirely in the sole
' discretion of Grantor. Nothing in this Subsection 5(F) shall create any fight of any governmental
authority or any nongovernmental person or entity to compel Grantor to exercise such remedy in
whole or in part at any time or under any circumstances, or any expectation of any such
governmental authority or nongovernmental person or entity that Grantor will exercise its sole
discretion in favor of invoking the exercise of such remedy in whole or in part at any time or
under any circumstances.
(G) If Grantee fails to make any required payment to Grantor under this Agreement
when such payment is due under the terms of this Agreement and such failure continues for more
than thirty (30) days after Grantee's receipt ofwritten notice from Grantor identifying such
delinquent payment, then interest shall accrue on the delinquent amount at the rate of ten percent
(10%) per annum, retroactive to the original due date of the delinque~, t amount, which interest
shall be immediately due and payable together with and in addition to the applicable delinquent
amount.
Section 6 - Notices.
All notices and demands required hereunder shall be in writing, shall be delivered by overnight
delivery service or by certified first class mail, return receipt requested, and shall be deemed to
be effective upon the date of actual delivery or refusal of delivery (other than a day which is not
a business day), as evidenced by the records of the overnight delivery service or U.S. Postal
Service, as applicable, to the following respective addresses:
(A) if to Grantor, c/o William Rogalla, Slough Estates USA Inc., 33 West Monroe
Street, Suite 2000, Chicago, IL 60603, with a copy to Donald E. Kelley, Jr., Folger Levin
&Kalm LLP, 2'/5 Battery Street, 23~ Floor, San Francisco, CA 94111 and with a copy to
· Magdalena Shushan, Britannia Management Services, Inc., 1939 Harrison Street, Suite
'/15, Oakland, CA 94612.
(B) if to Grantee, c/o A. P. Nuzzo, Manager, Environmental Projects, U. S. Steel
Group, 600 Grant Street, Pittsburgh, Pennsylvania 15219, with a copy to C. Daniel
Baker, U. S. Steel Group, 600 Grant Street, Pittsburgh, Pennsylvania 15219.
Any party may change the address to which notices to such party arc to be given by written
notice thereof to the other in accordance with this Section 6.
12
221848vl
lele~12eee 11:47A
· . . ES
Section '7 - Term /
(A) ~e d~tion of ~s A~ent sh~l co~ence upon ~e date ~t above
~, ~d sh~l ~n~ue ~l t~o~ ~ pm~d~ h~.
~) Teim F of ~e ~~t ~t~ h~ s~ ~e ~on ~e ~ to ~ of
(1) ~e date on wMch ~ ~ ~nclud~ i~ ~e of ~e ~~t ~ses to ~nduct ~e Off
Sho~ R~ation Wo~ ~d ~1 ~omfion wo~ ~ to be pedo~ by ~t~ ~d~
~s A~~ or (2) D~b~ 31, 2~1
'Tern 1 Expiration Date"); wh~enpon ~1 ~ ~t~ ~ b~ ~t~ to ~t~ ~n ~d
~e ~ B of ~e ~~t ~ses sh~l ~e.
E~emmt ~t~ h~ shall t~e ~ pw~d~ ~ Subs~fion 7(C) below.
(C) '~1 fi~ ~d bmefi~ G~tee h~ b~ ~t~ to mt~ upon ~d use ~ A of
· e E~mt Pr~ses shall t~ate upon ~e e~li~ to ~ of (1) ~e ~te on wMch ~tee
h~ conclud~ i~ ~e of~ A of~e ~~t ~ses to ~nduct ~e Off Sho~ Rm~afion
Wo& ~d ~1 ~stomfion wo~ ~ to be ~o~ by ~t~ ~d~ ~s A~~ or (2)
D~emb~ 31, 2~2 (~e ~ of~h ~1~b~g h~ ~1~ &e '~e~aflon Date'S.
~) ~e ~d~ obli~fio~ of~t~ ~d~ ~s A~mt ~d ~e ob~gafio~ of
~tee ~d~ Subs~fio~ 3(A) ~d 3~) of~'s A~mt ~1 ~ve ~y t~fion offs
~ A~~t. -~.
See~on 8 - Miscellaneous Addi~onal P~sions.
(A) This Agreement contains the entire agreement among the parties hereto pertaining
to the subject matter hereof and supersedes 'all prior agreements and understandings of the parties
hereto with respect to the subject matter hereof; and all prior and contemporaneous conversations
and agreements coi~ceming the subject matter hereof are merged herein.
(B) This Agreement shall be'construed in accordance with and governed by the laws
of the State of California.
(C) Whenever any party's written approval of any plan, proposal or other action is
required from time to time under any provision of this Agreement, such approval shall not be
unreasonably withheld or delayed. Approval by Grantor of any plan, proposal or other action or
request by Grantee under this Agreement shall not be construed to constitute Grantor an agent or
co-venturer of Grantee, to make Grantor respons~le in any way for the contents, the substance
or the implementation of such plan, proposal or other action or request, to limit or impair in any
way Grantor's indemnification rights under this Agreement, or to constitute a waiver or
limitation of any other substantive rights or remedies of Grantor under this Agreement. Without
limiting the generality of the preceding sentence, approval by Grantor of Grantee's work plans
..... for the Off Shore Remediation Work and review by Grantor and its consultants of reports, logs
and other information from time to time regarding Grantee's performance of the Off Shore
Remediation Work shall not be construed to make Grantor responsible in any way for the
13
221848vl
· * ES Pa~e: 14 of 18
substantive adequacy of such work plans or work or to wai~,e or limit any of Grantor's rights or
remedies with respect to the performance of Grantee's obligations under this Agreement.
(D) This Agreement may be executed in any number of counterparls and by different
parties hereto on separate eounterpms, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts, taken together, shall
constitute one and the same instrument and agreement.
lin WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be
executed by their respective duly authorized representatives as of the date first set forth above.
GRANTOR: GRANTEE:
SLOUGH BTC, LLC, a Delaware limited U.S. STEEL GROUP, A UNIT OF USX
liabilit7 company CORPORATION, a Delaware corporation
By: Slough Estates USA Inc., a . /
Delawarecorporation,,,Manager
By: . ·
Title:
14
221848vl
CO~Y OF ~LLe~de~
ON THIS, thc~q rjr-day of .~¢Pf'ero~ dtf.. 2000, before me, a notary public for
s dCounty ,dStat .P rso lr ,&, .who
acknowledged himself to begets.. ~o £o~v~e~0r.~t. £~. ofU. S. Steel Group, and, as
such, he is duly-authorized to execute the foregoing Easement Agreement for the purposes
therein contained by signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand an~ official seal.
My Commission. Expires: NOTNtihL SE~
LO~S
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* * * * * * * * * * * * * * * * ~~ ~s~ 18, ~2
STA OS
CO~ OF ~~
ON ~S, ~e ~ ~y of.~, I~ ,2~0, ~fo~ me, '~rr~t~N.~d~ ,
a no~ public for ~d ~W ~d.~, ~~y. ~~. ~, Ih~. ~ ~ ~ I ~ ,
perso~ly ~o~ W me (or pwv~ ~ me on ~e b~s of ~f~W~ e~n~) W ~ ~e p~on
whose ~e is subs~ W ~e ~ ~en~' ~d ~owl~g~ w me ~t hdshe
ex~ut~ ~e ~e M M~ au~ofi~ ~ci~, ~d'~ by ~ si~ on ~e ~ent
~e pe~ or ~e enfiW u~n ~f of wMch ~e ~on ~ ex~uted ~e ~ent.
~SS my ~d ~d o~ci~
5 O~ICIAL S~L"
~ Lorraine N. Mad~n
~ No~ Pub{{c, ~ ~ Illinoh ~ No~ ~bUc
{ My ~mmi.lon Exp{rH 215101
~495 IB003~0046rvl
15
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-- EXHIBIT A
Description of Easement Premises
The following described "Area A" and "Area B" are subject to the Basement granted herein and
constitute the Basement Premises. References to Parcels 2 and 3 of the Property refer to parcels
of land identified .on thc Bay West Cove Final Subdivision Map, more particularly described
above in the first WHBRBAS clause of the Basement Agreement.
"Area A"
All that portion of Parcels 2 and 3 of the Property consisting of approximately 151,392 square
feet of surface area, lying between the mean high tide line of San Francisco Bay and a line one
hundred (100) feet landward of and parallel with that line, which area is located substantially as
shown on the diagram attached hereto as Exhibit A-1 and incorporated herein by this reference.
"Area B' -
All that portion of Parcel 3 of the Property consisting of approximately 74,300 square feet of
surface area and located substantially as shown on the diagram attached hereto as Exhibit A-1.
Attachment: Exhibit A-1
84951L3003\0054
221848v I
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