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HomeMy WebLinkAboutOrd. 1507-2015 ORDINANCE NO. 1507-2015 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA AN ORDINANCE ADOPTING A DEVELOPMENT AGREEMENT TO ALLOW A BUS TRAINING FACILITY AT 30 TANFORAN AVENUE IN THE BUSINESS AND PROFESSIONAL OFFICE (BPO) ZONING DISTRICT WHEREAS, Joe Cassidy is the owner of real property located at 30 Tanforan Avenue, South San Francisco, California; and, WHEREAS, Joe Cassidy and Vitae Architecture (collectively "Applicant") have submitted an application for a bus driver training facility at 30 Tanforan Avenue ("Project"); and, WHEREAS, Applicant seeks approval of a Conditional Use Permit and Design Review; and, WHEREAS, as part of its application, the Applicant has sought approval of a Development Agreement, which would clarify and obligate several project features, including the maximum term of the bus training facility; and WHEREAS, approval of the Applicant's proposal is considered a "project" for purposes of the California Environmental Quality Act, Pub. Resources Code, §§ 21000, et seq. ("CEQA"); and, WHEREAS, the City Council has reviewed and carefully considered the Project and related Project documents, and because the Project involves the construction and location of limited numbers of new, small facilities or structures, the City Council has determined that the Project is categorically exempt from environmental review under the provisions of CEQA, pursuant to CEQA Guidelines Section 15303 — Class 3: New Construction or Conversion of Small Structures as an objective and accurate determination that reflects the independent judgment and analysis of the City in the discussion of the Project's environmental impacts; and, WHEREAS, on September 3, 2015 the Planning Commission for the City of South San Francisco held a lawfully noticed public hearing to solicit public comment and consider the proposed entitlements, take public testimony, and make a recommendation to the City Council on the project; and, WHEREAS, the City Council held a duly noticed public hearing on September 23, 2015 to consider the Project entitlements and Development Agreement, and take public testimony. NOW, THEREFORE, the City Council of the City of South San Francisco does hereby ordain as follows: SECTION 1. Findings. That based on the entirety of the record before it, which includes without limitation, the California Environmental Quality Act, Public Resources Code §21000, et seq. ("CEQA") and the CEQA Guidelines, 14 California Code of Regulations §15000, et seq.; the South San Francisco General Plan and General Plan EIR; the South San Francisco Municipal Code; the Project applications; the Applicant's plans and supporting documents, as prepared by Vitae Architecture, dated May 18, 2015; all site plans, and all reports, minutes, and public testimony submitted as part of the Planning Commission's duly noticed September 3, 2015 meeting, and Planning Commission deliberations; all site plans, and all reports, minutes, and public testimony submitted as part of the City Council's duly noticed September 23, 2015 meeting, and City Council deliberations; and any other evidence (within the meaning of Public Resources Code §21080(e) and §21082.2), the City Council of the City of South San Francisco hereby finds as follows: A. The foregoing Recitals are true and correct and made a part of this Ordinance. B. The proposed Development Agreement (attached as Exhibit A), is incorporated by reference and made a part of this Ordinance, as if set forth fully herein. C. The documents and other material constituting the record for these proceedings are located at the Planning Division for the City of South San Francisco, 315 Maple Avenue, South San Francisco, CA 94080, and in the custody of Chief Planner, Sailesh Mehra. D. The Applicant and City have negotiated a Development Agreement. The Development Agreement, attached hereto as Exhibit A, sets forth the duration, property, project criteria. Based on the findings in support of the Project, the Planning Commission finds that the Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the South San Francisco General Plan and any applicable zoning regulations. E. The City Council has independently reviewed the proposed Development Agreement, the General Plan, the South San Francisco Municipal Code, and applicable state and federal law, and has determined that the proposed Development Agreement complies with all applicable zoning, subdivision, and building regulations and with the General Plan. The development contemplated in the Project and Development Agreement is consistent with the Zoning and Specific Plan standards, as proposed for amendment. This finding is based upon all evidence in the Record as a whole, including, but not limited to: the City Council's independent review of these documents, oral and written evidence submitted at the public hearings on the Project, including advice and recommendations from City staff. F. The proposed Development Agreement for the Project states its specific duration. This finding is based upon all evidence in the Record as a whole, including, but not limited to: the City Council's independent review of the proposed Development Agreement and its determination that Section 2 of the Development Agreement states that the Development Agreement shall expire ten (10) years from the effective date of this Ordinance. G. The proposed Development Agreement incorporates the permitted uses, density and intensity of use for the property subject thereto, as reflected in the proposed Project (P15- 0041), Use Permit (UP 15-0008), Design Review (DR15-0037) and Development Agreement (DA15-0002). This finding is based upon all evidence in the Record as a whole, including, but not limited to, the City Council's independent review of the proposed Development Agreement and its determination that the Development Agreement sets forth the Project approvals, development standards, and the documents constituting the Project. H. The proposed Development Agreement states the maximum permitted height and size of proposed sign structures on the property subject thereto. This finding is based upon all evidence in the Record as a whole, including, but not limited to, the City Council's independent review of the proposed Development Agreement and its determination that the Development Agreement sets forth the documents which state the maximum permitted height and size of sign structures.. SECTION 2. Approval of Development Agreement. A. The City Council of the City of South San Francisco hereby approves the Development Agreement with Joe Cassidy, an individual, attached hereto as Exhibit A and incorporated herein by reference. B. The City Council further authorizes the City Manager to execute the Development Agreement, on behalf of the City, in substantially the form attached as Exhibit A, and to make revisions to such Agreement, subject to the approval of the City Attorney, which do not materially or substantially increase the City's obligations thereunder. SECTION 3. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of South San Francisco hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. SECTION 4. Publication and Effective Date. Pursuant to the provisions of Government Code Section 36933, a summary of this Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the Summary, and (2) post in the City Clerk's Office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk's Office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the 23rd day of September, 2015. Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City Council held the 28th day of October, 2015 by the following vote: AYES: Councilmembers Karyl Matsumoto, Pradeep Gupta, and Liza Normandy Vice Mayor Mark N. Addiego and Mayor Richard A. Garbarino NOES: None ABSTAIN: None ABSENT: None ATTES i �a. st.#'' inelli, City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this 28th day of October, 2015. Richard A. t arbarino, Mayor Exhibit A Development Agreement 2134171.1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of South San Francisco 400 Grand Avenue out San Francisco, CA 94080 (Space Above This Line Reserved For Recorder's Use) This instrument is exempt from recording fees pursuant to Government Code Sec. 27381 DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF SOUTH SAN FRANCISCO AND JOE CASSIDY SOUTH SAN FRANCISCO,CALIFORNIA I? 2\6011965.2 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT(this"Agreement") is entered into as of -,2015 by and between Joe Cassidy, an individual ("Developer"), and the City of South San Francisco ("City"),pursuant to California Government Code § 65864 et M. A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development,the Legislature of the State of California enacted California Government Code § 65864 et M. (the "Development Agreement Statute"),which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code § 65865, City has adopted procedures and requirements for the consideration of development agreements (South San Francisco Municipal Code("SSFMC") Chapter 19.60). This Development Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. Developer owns or has a legal or equitable interest of an approximately 7.3 acres parcel of real property located at 30 Tanforan Avenue, South San Francisco, California(APN 014-250-090) in the Business Professional Office ("BPO")zoning district and as more particularly described and depicted in Exhibit A (the"Project Site"). D. The proposed Project(the"Project") consists of the development and use of the Project Site as a bus training facility and related office space for the San Francisco Municipal Transit Authority or such other transportation provider as designated by Developer and approved by City in writing. E. Development of the Project requires that the Developer obtain from the City the following land use entitlement: Conditional Use Pen-nit to allow bus training facility and related office space at the Project Site. The approvals,purposes and development policies described in this Recital E are collectively referred to herein as the "Project Approvals." F. City has determined that until a program is in place for developing new street extensions that will provide a connection between South Spruce and South Maple Avenues and provide critical connections to the San Bruno BART station,the Project presents certain public benefits and opportunities which are advanced by City and Developer entering into this Agreement. This Agreement will, among other things: (1) reduce uncertainties in planning and provide for the orderly development of the Project in this interim period; (2)provide for and generate revenues for the City in the form of fees and other fiscal benefits; (3)provide for additional desirable employment; (4)provide economic development opportunities for Developer and other businesses within South San Francisco in this interim period; and(5) otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. G. In exchange forte benefits to City described e preceding Recital, together it the other public benefits that ill result from the development of the Project,Developer will receive by this Agreement assurance that it ay proceed with the Project for to ( 0)years in accordance with the"Applicable Law"(defi lied below), and therefore desires to enter into this Agreement. H. On m... following a duly noticed public hearing,the Planning Commission adopted Resolution No. ,recommending that the City Council approve this Agreement. . The City Council,after conducting a duly noticed public hearing,has found that is Agreement is consistent with e General Plan Zoning Ordinance and as conducted all necessary proceedings in accordance with e City's n1les and regulations for the approval oft is Agreement. In accordance with F C section 19.60.120 the City Council at a duly noticed public hearing adopted r ance No. [ ], approving and authorizing the execution oft is Agreement. AGREEMENT THEREFORE,the Parties,pursuant to the authority contained in ove ent Code Sections 65864 through 65869.5 and Chapter 19.6 of the Municipal Code and in consideration oft the mutual covenants and agreements contained herein, agree as follows: ARTICLE 1. DEFINITIONS "Administrative Project Amendment" s all have that eani g set forth in Section 7.01 oft is Agreement. "Administrative Agreement A en e ' shall ave that eani g set forth in Section 7.02 oft is Agreement. "Agreement" shall mean this Development Agreement. "Applicable Law"" s all have that meaning set forth in Section 6.03 of this Agreement. "City Law"" s all have that meaning set forth in Section 6.05 of this Agreement. "Change in Ownership" shall mean a sale of all or materially all oft the Company's business interests and assets. Its all not apply to any funding or financing be it in debt or equity that may change e companies capitalization and ownership. "Deficiencies" shall have that meaning set forth in Section 9.02 of this Agreement. "Development Agreement Statute" shall have that meaning set forth in Recital A oft is Agreement. "Judgment" shall have that meaning set forth in Section 9.02 of this Agreement. "Periodic Review" shall have that meaning set forth in Section 10.05 of this Agreement. "Project" shall have that meaning set forth in Recital D of this Agreement. "Project Approvals" shall have that meaning set forth in Recital E of this Agreement. "Project Site" shall have that meaning set forth in Recital C of this Agreement. "Tax" and"Taxes" shall not include any generally applicable City Business License Tax or locally imposed Sales Tax. "Term" shall have that meaning set forth in Section 2.02 of this Agreement. ARTICLE 2. EFFECTIVE DATE AND TERM Section 2.01. Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective (the"Effective Date"). Section 2.02. Term. The to of this Agreement(the"Tenn") shall commence upon March 1, 2016 and continue for a period of ten (10)years,unless terminated earlier pursuant to Section 10.02 or Section 10.11. ARTICLE 3. OBLIGATIONS OF DEVELOPER Section 3.01. Obligations of DevelODer Generally. The parties acknowledge and agree that the City's agreement to perform and abide by the covenants and obligations of City set forth in this Agreement is a material consideration for Developer's agreement to perform and abide by its long to covenants and obligations, as set forth herein. Section 3.02, City Fees, Taxes and Assessments. Developer shall pay those processing, inspection and plan checking fees and charges required by the City for processing applications and requests for any subsequent discretionary approvals under the applicable regulations in effect at the time such applications and requests are submitted to the City.Additionally, Developer shall also pay the fees, taxes, exactions, and assessments listed in Exhibit B. ARTICLE 4. OBLIGATIONS OF CITY Section 4.01. Obligations of City Generally. The parties acknowledge and agree that Developer's agreement to perform and abide by its covenants and obligations set forth in this Agreement, including Developer's decision to process the siting of the Project in the City, is a material consideration for City's agreement to perform and abide by the covenants and obligations of City, as set forth herein. Section 4.02. fights Li ite to Term ofA ee ant® During the to of this Agreement, and only during the to oft is Agreement, City shall take any and all actions as may be necessary or appropriate to ensure that the rights provided by this Agreement ca-n be enjoyed by Developer and to prevent any City Law, as defined below, from invalidating or prevailing over all or any part of this Agreement. City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect during the to of this Agreement® on (a)the expiration of the to of this Agreement, or(b)the early termination of this Agreement pursuant to Section 10002 or Section 10®11, Developer shall have no further right t o o perate the Project,and shall at its sole cost and expense,terminate use of the Project® Further,by execution of this Agreement,Developer affi n-natively waives any right to continue the Project beyond the to of this Agreement or any right against the City should the City elect to enforce the cessation of the Project following the termination of this Agreement. . Section 4.03. Deve!gggr:LRighL1g_& uild. City agrees that Developer may renovate or rebuild all or any part of the Project within the Term of this Agreement should it become necessary due to natural disaster, changes in seismic requirements, or should the buildings located within the Project become functionally outdate Developer's sole discretion, due to changes in technology. Any such renovation or rebuilding shall be subject tot e square footage and height limitations vested by this Agreement, and shall comply with the Project Approvals,the building codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA. ARTICLE ® COOPERATION -IMPLEMENTATION Section 5.01. Processing Application for Subseguent Approvals. By approving the Project Approvals, City has made a final policy decision that the Project for the to of this Agreement is in the best interests of the public health, safety and general welfare of the City. Section 5.020 Timely-Sub mittals B Develo ere Developer acknowledges that City cannot expedite processing Project Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i)provide to City in a timely manner any and all documents, applications,plans, and other information required for City to carry out its obligations hereunder; and(ii) cause Developer's planners, engineers,and all other consultants to provide to City in a timely manner all such documents, applications,plans and other required materials as set forth in the Applicable Law. It is the express intent of Developer and City to cooperate and diligently work t o o btain any and all Subsequent Approvals. Section 5.03. Other Government Permits. At Developer's sole discretion and in accordance with Developer's construction schedule, Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to,the Project. City shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its reasonable efforts to assist Developer to ensure the timely availability of such permits and approvals. ARTICLE . STANDARDS, LAWS AND PROCEDURES GOVE THE PROJECT Section 6.01. RighttoDevelop. Solely during the term of this Agreement, Developer shall have a right to develop the Project on the Project Site in accordance with the terms and conditions of this Agreement. Nothing in this section shall be deemed to eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals. Section 6.02. Permitted Uses by This Agreement. The permitted uses of the Project Site; the density and intensity of use of the Project Site;the maximum height, bulk and size of proposed buildings;provisions for reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; and other terms and conditions of development applicable to the Project, shall be as set forth in the Project Approvals and, as and when they are issued(but not in limitation of any right to develop as set forth in the Project Approvals),the Subsequent Approvals. Section 6.03. Applicable Law. The rules,regulations, official policies, standards and specifications applicable to the Project(the"Applicable Law") shall be those set forth in this Agreement and the Project Approvals, and,with respect to matters not addressed by this Agreement or the Project Approvals,those rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) governing permitted uses,building locations,timing of construction, densities, design,heights, fees, exactions, and taxes in force and effect on the Effective Date of this Agreement. Section 6.04. Uniform Codes. City may apply to the Project Site, at any time during the Term,then current California Building Code and other applicable uniform construction codes, and City's then current design and construction standards for road and storm drain facilities,provided any such uniform code or standard has been adopted and uniformly applied by City on a citywide basis and provided that no such code or standard is adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project. Section 6.05. No Conflicting Enactments. Except as authorized in Section 6.08, City shall not impose on the Project(whether by action of the City Council or by initiative,referendum or other ens)any ordinance, resolution,rule, regulation, standard, directive, condition or other measure (each individually, a"City Law") that is in conflict with Applicable Law or this Agreement or that reduces the development rights or assurances provided by this Agreement. Without limiting the generality eft e foregoing, any City Law shall be deemed to conflict with Applicable Law or this Agreement or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference tote Project or as part of a general enactment is applies to or affects the Project: (a) Change any land use designation or permitted use oft e Project Site; (b) Limit or control the availability of public utilities, services or facilities or .any privileges or rights to public utilities, services, or facilities(for example, water rights,water connections or sewage capacity rights, sewer connections, etc®)forte Project; (c) Limit or control the location of buildings, structures, grading,or other improvements oft e Project in a manner that is inconsistent with or more restrictive than the limitations included in the Project Approvals or the Subsequent Approvals (as and when they are issued); (d) Limit or control the rate, timing,phasing or sequencing of the approval, development or construction of all or any part oft e Project in any manner; (e) Apply tote Project any City Law otherwise allowed by this Agreement that is not uniforinly applied on a City-wide basis to all substantially similar types of development projects and project sites; (f) Result in Developer having to materially delay construction oft e Project or require the issuance of additional permits or approvals by the City other than those required by Applicable Law; (g) Establish, enact, increase, or impose against the Project or Project Site any fees,taxes(including without limitation general, special and excise taxes but excluding any increased local sales tax or increased city business license tax or any new or revised parking tax), assessments, liens or other monetary obligations(including generating demolition permit fees, encroachment permit and grading permit fees) other thant ose specifically permitted by this Agreement or other connection fees imposed by third party utilities; (h) Impose against the Project any condition,dedication or other exaction not specifically authorized by Applicable Law; or (I) Limit the processing or procuring of applications and approvals of Subsequent Approvals. Section 6.06. Initiatives and Referenda. (a) If any City Law is enacted or imposed by initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum,which City Law would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement, such Law shall not apply to the Project. (b) Except as authorized in Section 6.08,without limiting the generality of any of the foregoing, no moratorium or other limitation (whether relating to the rate,timing,phasing or sequencing of development)affecting subdivision maps,building permits or other entitlements to use that are approved or to be approved, issued or granted within the City, or portions of the City, shall apply to the Project. (c) To the maximum extent permitted by law, City shall prevent any City Law from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. (d) Developer reserves the right to challenge in court any City Law that would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement. Section 6.07. Life of Subdivision Maps, Development Approvals, and Permits. The to of any subdivision map or any other map,permit, rezoning or other land use entitlement approved as a Project Approval shall automatically be extended for the longer of the duration of this Agreement(including any extensions). Section 6.08. State and Federal Law. As provided in California Government Code § 65869.5,this Agreement shall not preclude the application to the Project of changes in laws, regulations,plans or policies,to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations. Not in limitation of the foregoing,nothing in this Agreement shall preclude City from imposing on Developer any fee specifically mandated and required by state or federal laws and regulations. ARTICLE 7. AMENDMENT Section 7.01. To the extent permitted by state and federal law, any Project Approval or Subsequent Approval may, from time to time, be amended or modified in the following manner: (a) Administratiye Project�Amen�dmen�ts. Upon the written request of Developer for an amendment or modification to a Project Approval or Subsequent Approval,the Chief Planner or his/her designee shall determine: (i) whether the requested amendment or modification is for when considered in light of the Project as a whole; and (ii)whether the requested amendment or modification is consistent with this Agreement and Applicable Law. If the Chief Planner or his/her designee reasonably fi nds that the proposed amendment or modification is consistent with this Agreement and Applicable Law, and will result in no new significant impacts,the amendment shall be determined to be an"Administrative Project Amendment" and the Chief Planner or his designee may,except t o t he extent otherwise required by law,approve the Administrative Project Amendment without notice and public hearing. Without limiting the generality oft e foregoing, lot line adjustments, minor alterations in vehicle circulation patterns or vehicle access points, substitutions of comparable landscaping for any landscaping shown on any fi nal development plan or landscape plan, variations in the location of structures that do not substantially alter the design concepts of the Project,variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Project Site diagram or Project Site legal description shall be treated as Administrative Project Amendments. (b) Non-Administrafivq�Prect Amendments. Any request by Developer for an amendment or modification to a Project Approval or Subsequent Approval which is determined not to be an Administrative Project Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement. Section 7.02. AmendmenLqf this Agreement. This Agreement may be amended from time to time, in whole or in part,by mutual written consent of the parties hereto or their successors in interest,as follows: (a) Administratiys A g L e e m e n t Amendments. Any amendment t o t his Agreement which does not materially affect(i)the Term oft is Agreement, (ii)permitted uses of the Project Site, (iii)provisions for the reservation or dedication of land, (iv)conditions,is s,restrictions or requirements for subsequent discretionary actions, (v)the density or intensity of use of the Project Site or the maximum height or size of proposed buildings or (vi)monetary contributions or payments by the Developer, shall be considered an"Administrative Agreement Amendment"and shall not, except t o t he extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. Such amendment may be approved by City resolution. (b) Any amendment to this Agreement other than an Administrative Agreement Amendment shall be subject to recommendation by the Planning Commission (by advisory resolution) and approval by the City Council (by ordinance) following a duly noticed public hearing before the Planning Commission and City Council, consistent with Government Code Sections 65 867 and 65867.5. ARTICLE 8. ASSIGNMENT, TRANSFER AND NOTICE Section . 1. Assignment and Transfer. Developer may transfer or assign all or any portion of its interests, rights, or obligations under the Agreement and the Project Approvals to third parties acquiring an interest or estate in the Project or any portion thereof including,without limitation,purchasers or lessees of lots, parcels, or facilities. Developer will seek City's prior written consent to any transfer,which consent will not be unreasonably withheld, conditioned or delayed. City may refuse to give consent only if, in light of the proposed transferee's reputation and financial resources, such transferee would not in City's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination will be made by the City Manager and will be appealable to the City Council. Notwithstanding the foregoing,the parties acknowledge that debt or equity financing of Developer shall not be considered a transfer of an interest or estate in the Project or subject to the terms of this provision. ARTICLE 9. COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 9.01,, Cooperation. In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to the Agreement challenging the validity of any provision of the Agreement or any Project approval,the parties will cooperate in defending such action or proceeding. City shall promptly notify Developer of any such action against City. If City fails promptly to notify Developer of any legal action against City or if City fails to cooperate in the defense, Developer will not thereafter be responsible for City's defense. The parties will use best efforts to select mutually agreeable legal -counsel to defend such action,and Developer will pay compensation for such legal counsel (including actual City Attorney time and actual overhead costs for the defense of such action),but will exclude other City staff overhead costs and normal day-to-day business expenses incurred by City. Developer's obligation to pay for legal counsel as provided herein will also extend to actual fees incurred on appeal. In the event City and Developer are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel and Developer will pay its and the City's reasonable legal fees and costs. Developer shall reimburse the City for all reasonable court costs and attorneys' fees expended by the City in defense of any such action or other proceeding or payable to any prevailing plaintiff/petitioner. Developer's obligations under this Section shall survive expiration,termination or cancellation of this Agreement. Section 9.02. ReVg a roval. _ If, as a result of any administrative, legal, or equitable action or other proceeding, all or any portion of the Agreement or the Project approvals are set aside or otherwise made ineffective by any judgment in such action or proceeding ("Judgment"),based on procedural, substantive or other deficiencies ("Deficiencies"),the parties will use their respective best efforts to sustain and reenact or readopt the Agreement, and/or the Project approvals,that the Deficiencies related to,unless the Parties mutually agree in writing to act otherwise: (i) If any Judgment requires reconsideration or consideration by City of the Agreement or any Project approval,then the City will consider or reconsider that matter in a manner consistent with the intent oft e Agreement and with Applicable Law. If any such Judgment invalidates or otherwise makes ineffective all or any portion oft e Agreement or Project approval,then the parties will cooperate and will cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of the Agreement and with Applicable Law. City will then consider readopting or reenacting the Agreement, or the Project approval, or any portion thereof, to is the Deficiencies related. (ii)Acting in a manner consistent with the intent oft e Agreement includes, but is not limited to,recognizing that the parties intend that Developer may develop the Project as described in the Agreement, and adopting such ordinances,resolutions,and other enactments as are necessary to readopt or reenact all or any portion oft e Agreement or Project approvals without contravening the Judgment. ARTICLE 10. DEFAULT; REMEDIES; TERMINATION Section 10.01. Defaults.Any failure by either party to perform any material term or provision oft e Agreement, is failure continues uncured for a period of thirty(3 0) calendar days following written notice of such failure from the other party(unless such period is extended by mutual written consent),will constitute a default under the Agreement. Any written notice given wills eci e nature of the alleged failure a appropriate,the manner in is said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-calendar day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter,will be deemed to be a cure within such 30- calendar day period. Upon the occurrence of an uncured default under the Agreement,the non-defaulting party may institute legal proceedings to enforce the terms oft e Agreement or, in the event of a material default,terminate the Agreement. If the default is cured,then no default will exist and the noticing party shall take no further action. Section 10.02. Termination. If City elects to consider terminating the Agreement due to a material continuing default of Developer,then City will give a written notice of intent to terminate the Agreement and the matter will be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing. Developer will have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing, and elects to terminate the Agreement, City will give written notice of termination of the Agreement to Developer by certified mail and the Agreement will thereby be terminated sixty (60)calendar s thereafter. Section 10.03. Enforced DeIU;Extension of Time of Performance. In addition to specific provisions of the Agreement,neither party will be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs,riots, floods, earthquakes, fires, casualties, acts of God,restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations,judicial decisions, or similar basis for excused performance which is not within the reasonable control of the party to be excused. Litigation attacking the validity of the Agreement or any of the Project approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to the Agreement will be deemed to create an excusable delay as to Developer. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The to of any such extension will be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 10.04. Legal Action/Default by City. Developer may institute legal action to cure, correct, or remedy any material and continuing default, enforce any covenant or agreement in the Agreement, enjoin any threatened or attempted violation thereof, and enforce by specific performance the obligations and rights of the parties thereto. The sole and exclusive remedy for any default or violation of the Agreement by the City will be specific performance. Section 10.05. Periodic Review. (a) Conducting the Periodic Review. Throughout the Term of this Agreement, at least once every twelve(12)months following the execution of this Agreement, City shall review the extent of good-faith compliance by Developer with the terms of this Agreement. This review(the "Periodic Review") shall be conducted by the Chief Planner or his/her designee and shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1. (b) Notice. At least five(5)business days prior to the Periodic Review, and in the manner prescribed in Section 11.09 of this Agreement, City shall deposit in the mail to Developer a copy of any staff reports and documents to be used or relied upon in conducting the review and,to the extent practical, related exhibits concerning Developer's performance hereunder. Developer shall be permitted an opportunity to respond to City's evaluation of Developer's performance, either orally at a public hearing or in a written statement, at Developer's election. Such response shall be made to the Chief Planner. (c) Good Faith Compliance. During the Periodic Review,the Chief Planner shall review Developer's good-faith compliance with the terms of this Agreement. At the conclusion of the Periodic Review,the Chief Planner shall make written findings and determinations, on the basis of substantial evidence, as to whether or not Developer has complied in good faith with the terms and conditions of this Agreement. The decision of the Chief Planner shall be appealable to the City Council. If the Chief Planner finds and determines that Developer has not complied with such terms and conditions, the Chief Planner may recommend tote City Council that it terminate or modify this Agreement by giving notice of its intention to do so, in the manner set forth in California Government Code Sections 65867 and 65868. The costs incurred by City in connection with the Periodic Review process described herein shall be home by Developer. (d) Failure to PrgggLly Conduct Periodic Review. If City fails, during any calendar year,to either(i)conduct the Periodic Review or(ii)notify Developer in writing of City's determination,pursuant to a Periodic Review, as to Developer's compliance with the terms of this Agreement and such failure remains uncured as of December 31. of any year during the to of this Agreement, such failure shall be conclusively deemed an approval by City of Developer's compliance with the terms of this Agreement. (e) Written Notice of Co ragliance. With respect to any year for is Developer has been determined or deemed to have complied with this Agreement, City shall,within thirty (30) calendar days following request by Developer,provide Developer with a written notice of compliance, in recordable form,duly executed and acknowledged by City. Developer shall have the right, in Developer's sole discretion,to record such notice of compliance. Section 10.06® In the event Developer commits a material uncured default under the terms of this Agreement, City shall have all rights and remedies provided herein or under law. City may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof,recover reasonable actual damages for any default, enforce by specific performance the obligations and rights oft e parties hereto, or to obtain any remedies consistent with the purpose of this Agreement. Section 10.07. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of San Mateo County, California. Section 10.08.Resolution of Disputes. With regard to any dispute involving development of the Project,the resolution of which is not provided for by this Agreement or Applicable Law,Developer shall, at City's request,meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 10.08 shall in any way be interpreted as requiring that Developer and City and/or City's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings. Section 10.09.Ao ems' Fees. In any legal action or any other proceeding brought by either party to enforce or interpret a provision of this Agreement,the prevailing party is entitled to reasonable attorneys' fees and any other reasonable costs incurred in that proceeding in addition to any other relief to which it is entitled. Section 10.10. Hold Harmless. Developer shall hold City and its elected and appointed officers, agents, employees, and representatives harmless from claims, costs, and liabilities for any personal injury, death, or property damage which is a result of, or alleged to be the result of,the construction of the Project, or of operations performed under this Agreement by Developer or by Developer's contractors, subcontractors, agents or employees,whether such operations were performed y Developer or any of eveloer's contractors, subcontractors, agents oremployees. Nothing in this section shall be construed to mean that Developer shall hold City harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, any active negligence or willful misconduct on the part of City, its elected and appointed representatives, offices, agents and employees. Developer's obligations under this Section shall survive expiration,termination or cancellation of this Agreement and shall be independent of other indemnity agreements. Section 10.11. Termination Upon Cessation. In the event Developer permanently terminates operations of the Project at the Project Site, Developer shall so notify City and this Agreement shall be deemed terminated effective upon the date of cessation of such operations. In such event,the parties agree to execute and deliver all such instruments and documents as may be reasonably necessary to evidence such termination and to record the same in the Official Records of the County of San Mateo. ARTICLE 11. MISCELLANEOUS Section 11.01. Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 1. 2. No Agency. It is specifically understood and agreed to by and between the parties hereto that: (i)the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, it parties concerning any improvements until such time, and only it such time, that City accepts the same pursuant tote provisions oft is Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii)Developer shall have full power over and exclusive control of the Project herein described, subject only tote limitations and obligations of Developer under this Agreement,the Project Approvals, Subsequent Approvals, and Applicable Law; and(iv) City and Developer hereby renounce the existence of any for of agency relationship,joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. Section 11.03.Enforces bWly. City and Developer agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement,this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted(whether by ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan,zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule,regulation or policy adopted by City that changes, alters or amends the rules,regulations and policies applicable to the development oft e Project Site at the time oft e approval oft is Agreement as provided by California Government Code Section 65866. Section 11.04. Severability. If any to or provision oft is Agreement,or the application of any to or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid,void or unenforceable,the remaining terms and provisions oft is Agreement, or the application oft is Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, either City or Developer may(in their sole and absolute discretion)terminate this Agreement by providing written notice of such termination t o t he other party. Section 11.05. Other Neceaaga Acts. Each party shall execute and deliver t o t he other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals and this Agreement and to provide and secure t o t he other party the full and complete enjoyment of its rights and privileges hereunder. Section 11.06. Construction. Each reference in this Agreement tot is Agreement or any oft e Project Approvals or Subsequent Approvals shall be deemed to refer t o t he Agreement, Project Approval or Subsequent Approval as it may be amended from time to time,whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Section 11.07. Other Miscellaneous Terms. The singular shall include the plural;the masculine gender shall include the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement,the signer obligations are joint and several. Section 11.08. Covenants RunninR with the Land. All of the provisions contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assigns,representatives, lessees, and all other persons acquiring all or a portion of the Project, or any interest therein,whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including,without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate,runs with the Project Site and is binding upon the owner of all or a portion of the Project Site and each successive owner during its ownership of such property. Section 11.09.Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally,by telefacsimile (with original forwarded by regular U.S. Mail),by registered or certified mail(return receipt requested), or by Federal or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to who it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of(i) actual receipt by any of the addressees designated below as the party to who notices are to be sent, or(ii)five (5)calendar days after a registered or certified letter containing such notice,properly addressed,with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier,a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time,by giving written notice as prescribed above to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to City,to: City Manager City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Phone: (650) 829-6629 Fax: (650) 829-6623 With a Copy to: Meyers Nave 575 Market Street, Suite 2080 San Francisco, CA 94105 At Steven T. Mattas, City Attorney Phone: (415)421-3711 Fax: (415)421-3767 If to Developer,to: Joe Cassidy 160 South Linden Avenue, Suite 100 South San Francisco, CA 94080 Phone: (650) 876-9400 With Copies to: Duane Morris LLP One Market Plaza, Spear Tower, Suite 2200 San Francisco, CA 94105 At Kenneth K. Tze,Es q. Phone: (415) 957-3159 Fax: (415) 723-7389 Section 11.10. This Agreement may be executed in two (2)or more duplicate counterparts, each of is is deemed to be an original. This Agreement shall constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: (a) Exhibit A: Description and Diagram of Project Site (b) Exhibit B: Existing City Fees, Taxes, Exactions, and Assessments Section 11.11. Recordation Of Developme 9 Agreement. Pursuant to California Government Code § 65 868.5, no later than ten(10)calendar days after City enters into this Agreement,the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of San Mateo. IN WITNESS WHEREOF,this Agreement has been entered into by and between Developer and City as of the and year first above written. CITY Developer CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: JOE CASSIDY, an individual Name: City Manager ATTEST: By: ........... ............................ City Clerk APPROVED AST FORM: By ............ City Attorney ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy, or validity of that oc t. State of California County of ) On before me, ,,, , (insert name of notary) Notary u lic,personally appeared ,who proved ca aci (ies),and at by his/her/their sign re(s) on e instrument erso (s), or the entity upon behalf of is the person(s) acted, executed e instrument. certify under PENALTY F PERJURY under the laves of the State of California that the foregoing paragraph is true and corrects WITNESS my hand and official seal. Signature (Seal) ACKNOWLEDGMENT A not public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness, accuracy,or validity of that document. State of California County of On before me, (insert name of notary) Notary Public,personally appeared who provei capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Exhibit A: Description and Diagram of Project Site LEGAL DESCRIPTION OF PROJECT SITE EXHIBIT B Existing Cily Fees,Taxes,Exactions,and Assessments Developer agrees that Developer shall be responsible for the payment of the following fees, charges, exactions,taxes, and assessments (collectively, "Assessments"). From time to time,the City may update,revise,or change its Assessments. Further, nothing herein shall be construed to relieve the Property from common benefit assessments levied against it and similarly situated properties by the City pursuant to and in accordance with any statutory procedure for the assessment of property to pay for infrastructure and/or services that benefit the Property. Except as indicated below,the amount paid for a particular Assessment, shall be the amount owed,based on the calculation or formula in place at the time payment is due, as specified below. 1.1 Administrative/Processing Fees. The Developer shall pay the applicable application,processing,administrative, legal and inspection fees and charges, as currently adopted pursuant to City's Master Fee Schedule and required by the City for processing of land use entitlements, including without limitation, General Plana end ets, zoning changes, precise plans, development agreements, conditional use permits,variances, transportation demand management plans,tentative subdivision maps,parcel maps, lot line adjustments, general plan maintenance fee, demolition permits, and building permits. 1.2 Impact Fees (Existing Fees). Except as modified below, existing impact fees shall be paid for net new square footage, if any, at the rates and at the times prescribed in the resolution(s) or ordinance(s) adopting and implementing the fees. 1.2.1 Child Care Impact Fee(SSFMC, ch. 20.310; Ordinance 131- 2001). If applicable to improvements of the Project, Developer shall pay the City's Child Care Impact Fee, as described in South San Francisco Municipal Code Chapter 20.31 . 1.2.2 Public Safety Impact Fee. (Resolution 97-2012)Prior to receiving a building permit for the Project, if applicable,the Developer shall pay the Public Safety Impact Fee, as set forth in Resolution No. 97-2012, adopted on December 10, 2012 to assist the City's Fire Department and Police Department with funding the acquisition and maintenance of Police and Fire Department vehicles, apparatus, equipment, and similar needs for the provision of public safety services. 1.2.3 Sewer Capacity Charge. (Resolution 39-2010)Prior to receiving a building permit for Tenant Improvements for the Project, and if applicable,the Developer shall pay the Sewer Capacity Charge, as set forth in Resolution No. 39-2010. 1.2.4 General Plan Maintenance Fee. (Resolution 74-2007) 1.3 User Fees. 1.3.1 Sewer Service Charges (assessed as part of property tax bill) 1.3.2 Sfor er Charges (assessed as part of property tax bill) 2511213.3