HomeMy WebLinkAboutReso 50-2018 (18-170)City of South San Francisco P.O. Box 711 (City Hall,
• 400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 50 -2018
File Number: 18 -170 Enactment Number: RES 50 -2018
RESOLUTION APPROVING THE HOUSING STANDING
COMMITTEE RECOMMENDATION TO SELECT ENSEMBLE
INVESTMENTS AS THE PREFERRED DEVELOPER FOR THE
OYSTER POINT HOTEL SITE AND AUTHORIZING THE CITY
MANAGER TO ENTER INTO AN EXCLUSIVE NEGOTIATING
RIGHTS AGREEMENT WITH ENSEMBLE INVESTMENTS.
WHEREAS, the City is the owner of certain real property (the "Property") located in the City of South
San Francisco, California, known as County Assessor's Parcel Number (APN) 015- 010 -600, and more
particularly shown as Parcel 6 on Parcel Map 17 -0002 attached as Exhibit A; and
WHEREAS, on March 23, 2011, the City Council approved the Oyster Point Specific Plan and certified
the Phase 1 Project Environmental Impact Report which, among other things, planned for and analyzed
the potential environmental impacts of developing a new, full- service hotel with up to 350 rooms and
40,000 square feet of retail uses on the Property; and
WHEREAS, a Disposition and Development Agreement (DDA) was executed on March 23, 2011,
between Oyster Point Ventures, LLC, the South San Francisco Redevelopment Agency, and the City of
South San Francisco for the master development of Oyster Point, including the potential development of
a hotel on the Property; and
WHEREAS, the DDA requires Oyster Point Development, LLC, to perform certain site work, grading,
and installation of infrastructure to prepare for the Hotel Site for development; and
WHEREAS, in 2017, the City solicited proposals from qualified hotel developers through a competitive
process beginning with a Request for Qualifications (RFQ) and culminating with a Request for Proposals
(RFP); and
WHEREAS, submittals in response to the RFQ were reviewed and four developer teams were invited to
respond to the RFP; three teams chose to respond; and
WHEREAS, on December 11, 2017, the City's Housing Standing Committee interviewed all three
responding developer teams and recommended that City Council approve Ensemble Investments to
develop a new full- service hotel on the Property and that the City enter into an Exclusive Negotiating
Rights
City of South San Francisco Page
File Number. 18 -170
Enactment Number., RES 50 -2018
Agreement (ENRA) with Ensemble Investments for the development of the Property; and
WHEREAS, Ensemble Investments anticipates expending funds to prepare architectural and design
drawings and conduct certain studies that are needed to assess the feasibility of the development of the
Property, and therefore requires a grant of exclusive negotiating rights in order to be willing to make
such expenditures.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that
the City Council hereby:
Approves Ensemble Investments as the preferred developer for the Oyster Point hotel site; and
Authorizes the City Manager to enter into an ENRA with Ensemble Investments on behalf of the City in
substantially in substantially the same form as attached hereto as Exhibit B; to make any revisions,
amendments, corrections and modifications to the ENRA, subject to the approval of the City Attorney,
deemed necessary to carry out the intent of this Resolution and which do not materially alter or increase
the City's obligations thereunder; and
Authorizes the City Manager to take any other related actions consistent with the intention of the
resolution.
At a meeting of the Special City Council on 4/11/2018, a motion was made by Mark Addiego, seconded by
Pradeep Gupta, that this Resolution be approved. The motion passed.
Yes: 3 Mayor Normandy, Councilmember Addiego, and Councilmember Gupta
Absent: 2 Mayor Pro Tern Matsumoto, and Councilmember Garbarino
Attest by
IC ri
City of South San Francisco Page 2
T:\1016-OPD\1016-006 OPD Oyster Point SSF Final Map\Survey\Parcel Map\Final Draft\20170907 Sheets 1 & 3 Final Draft O P Final Parcel Map.dwg 9-08-17 12:03:11 PM rcameron
Engineering, Surveying & Planning
WILSEY HAM
3130 La Selva Street, Suite 100
San Mateo, CA 94403
650.349.2151
wilseyham.com
0 50 100 200 300
0 1 2 3
Engineering, Surveying & Planning
WILSEY HAM
3130 La Selva Street, Suite 100
San Mateo, CA 94403
650.349.2151
wilseyham.com
T:\1016-OPD\1016-006 OPD Oyster Point SSF Final Map\Survey\Parcel Map\Final Draft\20170907 Sheet 2 Final Draft OP Final Parcel Map.dwg 9-07-17 03:48:03 PM rcameron
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PARCEL 1 LINE TABLE
LINE BEARING DISTANCE
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PARCEL 1 CURVE TABLE
CURVE RADIUS DELTA LENGTH
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PARCEL 2 LINE TABLE
LINE BEARING DISTANCE
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PARCEL 2 CURVE TABLE
CURVE RADIUS DELTA LENGTH
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PARCEL 3 LINE TABLE
LINE BEARING DISTANCE
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PARCEL 3 CURVE TABLE
CURVE RADIUS DELTA LENGTH
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T:\1016-OPD\1016-006 OPD Oyster Point SSF Final Map\Survey\Parcel Map\Final Draft\20170907 Sheets 1 & 3 Final Draft O P Final Parcel Map.dwg 9-07-17 03:41:33 PM rcameron
Engineering, Surveying & Planning
WILSEY HAM
3130 La Selva Street, Suite 100
San Mateo, CA 94403
650.349.2151
wilseyham.com
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PARCEL 4 LINE TABLE
LINE BEARING DISTANCE
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:64.44'
L26 1
(27.24'
PARCEL 4 CURVE TABLE
CURVE RADIUS DELTA LENGTH
C4 68.43'
21.72'
T:\1016-OPD\1016-006 OPD Oyster Point SSF Final Map\Survey\Parcel Map\Final Draft\20170907 Sheet 4 Final Draft O P Final Parcel Map.dwg 9-07-17 03:49:15 PM rcameron
Engineering, Surveying & Planning
WILSEY HAM
3130 La Selva Street, Suite 100
San Mateo, CA 94403
650.349.2151
wilseyham.com
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T:\1016-OPD\1016-006 OPD Oyster Point SSF Final Map\Survey\Parcel Map\Final Draft\20170907 Sheet 5 Final Draft O P Final Parcel Map.dwg 9-07-17 03:50:14 PM rcameron
PARCEL 5 LINE TABLE
LINE BEARING DISTANCE
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Engineering, Surveying & Planning
WILSEY HAM
3130 La Selva Street, Suite 100
San Mateo, CA 94403
650.349.2151
wilseyham.com
PARCEL 6 LINE TABLE
LINE BEARING DISTANCE
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:
/6
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DRAFT
EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT
ENSEMBLE INVESTMENTS
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EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT
by and between
ENSEMBLE INVESTMENTS
and
CITY OF SOUTH SAN FRANCISCO
EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT
ENSEMBLE INVESTMENTS
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THIS EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT (this “Agreement”) is
entered into by and between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation
(“City”), and ENSEMBLE INVESTMENTS, LLC, a California Limited Liability Company
(“Developer”), dated as of (the “Effective Date”). City and Developer are each
referred to as (“Party”) or collectively referred to as the (“Parties”).
WHEREAS, the City is the owner of certain real property (the “Property”) located in the
City of South San Francisco, California, known as County Assessor’s Parcel Number (“APN”)
015-010-600, and more particularly shown as Parcel 6 on Parcel Map 17-0002 recorded on
September 25, 2017, attached hereto as Exhibit A, and incorporated herein by this reference; and,
WHEREAS, on March 23, 2011, the City Council approved the Oyster Point Specific Plan
and certified the Oyster Point Specific Plan and Phase 1 Project Environmental Impact Report
which, among other things, planned for and analyzed the potential environmental impacts of
developing a new full-service hotel with up to 350 rooms and 40,000 square feet of retail uses on
the Property; and
WHEREAS, a Disposition and Development Agreement was executed on March 23, 2011,
between Oyster Point Ventures, LLC, the South San Francisco Redevelopment Agency, and the
City of South San Francisco (“DDA”) for the master development of Oyster Point through a multi-
phased project, which included the potential development of a hotel on an approximately 4.7 acre
portion of the Property known as the “Hotel Site,”; among other things, the DDA requires Oyster
Point Development, LLC, to perform certain site work, grading, and installation of infrastr ucture
to prepare for the Hotel Site for development; and,
WHEREAS, in 2017, the City solicited proposals from qualified hotel developers through
a RFQ/RFP process, and upon review of the responsive proposals, the City’s Joint Housing
Standing Committee made a recommendation at its December 11, 2017, meeting that the City enter
into an Exclusive Negotiating Rights Agreement (“ENRA”) with Developer for the development
of a new full-service hotel on the Hotel Site; and,
WHEREAS, the City is interested in ground leasing the Hotel Site to Developer in a
manner consistent with the DDA and this ENRA, contingent upon Developer preparing all
appropriate environmental review documents, applying for land use entitlements from the City,
and, if such entitlements are granted, constructing a full-service hotel (“Project”) on the Hotel
Site as more particularly described in Exhibit B attached hereto and incorporated herein by this
reference as the Development Proposal (“Development Proposal”); and,
WHEREAS, Developer anticipates expending funds to prepare architectural and design
drawings and conduct certain studies that are needed to assess the feasibility of the Project and
seek any additional land use entitlements, and therefore requires a grant of exclusive negotiat ing
rights in order to be willing to make such expenditures; and,
WHEREAS, at its meeting on ____________________, 2018 the City approved this
Agreement and directed staff to commence negotiating the terms of a Lease Disposition and
Development Agreement (“LDDA”), with a form of Ground Lease Agreement for the Hotel Site
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attached as an exhibit to the LDDA, in order for the Developer to pursue land use entitlements for
the Project.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows.
1. Good Faith Efforts to Negotiate. The Parties agree, for the term of this Agreement, to
negotiate diligently and in good faith the terms of a LDDA and Ground Lease Agreement
for the Hotel Site. Furthermore, the Parties agree to diligently and in good faith pursue any
third-party consent, authorization, approval, or exemption required in connection with the
preparation and execution of a LDDA and Ground Lease Agreement for the future
development of the Project on the Hotel Site. This Agreement does not, however, impose
a binding obligation on City to convey any interest in the Hotel Site to Developer, nor does
it obligate City to grant any approvals or authorizations required for the development of
the Project on the Hotel Site.
a. If City believes that Developer is not negotiating diligently and in good faith, City
will give written notice thereof to Developer who will then have ten (10) business
days to commence negotiating in good faith. Following the failure of Developer to
thereafter commence negotiating in good faith within such ten (10) business day
period, this Agreement may be terminated by City. If this Agreement is terminated
by City pursuant to the above sentence, Developer acknowledges and agrees that
City will suffer damages, including lost opportunities to pursue other development
alternatives for the Hotel Site. Therefore, the Parties agree that if this Agreement
is terminated as provided above, City will retain the full Payment and Deposit
amounts (as defined in Section 5 of this Agreement, infra), plus any interest thereon,
as fixed and liquidated damages and not as a penalty, and following such termination
neither Party will have any further rights against or liability to the other under this
Agreement, except as set forth in Section 15 of this Agreement.
b. If Developer believes that City is not negotiating diligently and in good faith,
Developer will give written notice thereof to City which will then have ten (10)
business days to commence negotiating in good faith. Following the failure of City
to thereafter commence negotiating in good faith within such ten (10) business-day
period, this Agreement may be terminated by Developer. In the event of such
termination by Developer, City will return a prorated portion of the Deposit to
Developer in accordance with the provisions of Section 5(c) of this Agreement and
neither Party will have any further rights against or liability to the other under this
Agreement, except as set forth in Section 15 of this Agreement.
c. If the Parties proceed to negotiate diligently and in good faith, but are unable to
reach agreement on the terms of a LDDA and Ground Lease Agreement, then City
will return a prorated portion of the Deposit to Developer in accordance with the
provisions of Section 5(c) of this Agreement and neither Party will have any further
rights against or liability to the other under this Agreement, except as set forth in
Section 15 of this Agreement.
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2. Developer’s Exclusive Right to Negotiate With City. City agrees that it will not, during the
term of this Agreement, directly or indirectly, through any officer, employee, agent, or
otherwise, solicit, initiate or encourage the submission of bids, offers or proposals by any
person or entity with respect to the acquisition of any interest in the Hotel Site or the
development of the Hotel Site, and City will not engage any broker, financial adviser or
consultant to initiate or encourage proposals or offers from other parties with respect to the
disposition or development of the Hotel Site or any portion thereof.
Furthermore, City will not, directly or indirectly, through any officer, employee, agent or
otherwise, engage in negotiations concerning any such transaction with, or provide
information to, any person other than Developer and its representatives with a view to
engaging, or preparing to engage, that person with respect to the disposition or
development of the Hotel Site or any portion thereof.
3. Term.
a. The term of this Agreement (“Term”) commences on the Effective Date, and will
terminate six (6) months from the Effective Date, unless extended or earlier
terminated as provided herein.
b. During the Term, Developer will provide City with written reports every thirty (30)
days that summarize Developer’s actions taken in furtherance of this Agreement,
including but not limited to: due diligence review of the Hotel Site, commencement
of any environmental requirements under the California Environmental Quality Act
(“CEQA”), preparation of architecture and construction plans, attendance at City
meetings, master developer meetings, adherence to a mutually agreed upon master
schedule, and general progress towards future development of the Hotel Site.
c. The Term of this Agreement may be extended for up to a maximum of two separate
ninety (90) day periods upon the receipt of an additional non-refundable payment
by Developer of twenty-five thousand dollars ($25,000) for each ninety day
extension period (“ENRA Extension Payment”), and the consent of the City
acting through and at the discretion of its City Manager, or his/her designee (“City
Manager”). Developer understands that the City will only consider extension(s) of
the Term of this Agreement where Developer has demonstrated, to the City’s
satisfaction, substantial progress toward development of the Hotel Site, including,
but not limited to, submittal of a development application, submittal of
environmental review documents necessary to satisfy compliance with CEQA,
submittal of architecture and construction plans, payment of any applicable
processing and plan check fees, or pursuing land use entitlements for the Project.
4. Relationship of the Parties. Nothing in this Agreement creates between the Parties the
relationship of lessor and lessee, of buyer and seller, or of partners or joint venturers.
5. Deposit and Payment to City.
a. In consideration for the right to exclusively negotiate under this Agreement,
Developer will, within five (5) days of the Effective Date, remit to City a deposit
in the amount of One Hundred Thousand Dollars ($100,000), which if a LDDA is
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executed that includes a final form of a Ground Lease Agreement, the deposit will
be credited toward the rent payable under the final negotiated ground lease
(“Deposit”). City will deposit the Deposit in an interest bearing account of the City
and any interest, when received by City, will become part of the Deposit.
During the term of this Agreement, Developer will reimburse City for all reasonable
staff and City consultant time incurred in preparing the LDDA and Ground Lease
Agreement, and any related documents for the disposition of Hotel Site to
Developer. Developer will, within five (5) days of the Effective Date, remit to City
a payment in the amount of Twenty-Five Thousand Dollars ($25,000) in
immediately available funds (“Payment”). Any funds previously deposited by
Developer pursuant to a completed preliminary application will be credited towards
the Payment. City will deposit the Payment in an interest bearing account of City
and any interest, when received by City, will become part of the Payment. The
Payment may be drawn upon by City to reimburse staff, City Attorney, and City
consultant costs for preparing the LDDA and any related documents, including but
not limited to the form of Ground Lease Agreement, at their standard published
hourly rates. Should the full amount of the Payment be exhausted during the Term
of this Agreement, City may require the Developer to provide additional funds
necessary to reimburse staff and consultant costs expended in connection with
preparation of the LDDA and any related documents, including but not limited to
the form of Ground Lease Agreement,. Documentation of City’s rate schedule for
staff, staff time spent, and consultant costs will be retained by City and provided to
Developer upon request.
b. City agrees to account for the Deposit and Payment, interest earnings, and any
expenditures made in furtherance of this Agreement.
c. In the event that Developer terminates this Agreement before the expiration of the
Term pursuant to Section 1(b) or Section 14(c), the City will return any prorated
portion of the Deposit to the Developer. The prorated Deposit will be calculated by
dividing the full $100,000 Depositby the number of months in the Agreement Term.
This amount will be multiplied by the number of months remaining on the Term at
the time of Developer’s termination. The resulting figure will be the prorated
Deposit that the City will pay to the Developer.
d. In the event the Agreement is terminated by either Party for any reason other than
Developer’s breach of its obligations under this Agreement, the remaining balance
of the Payment and any interest earned will be returned to Developer, minus
amounts that the City retains attributable to the amount of costs and consulting fees
actually and reasonably incurred and documented by City in implementing this
Agreement, as set forth in subsection (a) of this Section 5.
e. In addition to the payments to City discussed herein, Developer shall be subject to
all applicable fees imposed by the City for processing land use entitlements as set
forth in the City’s adopted Master Fee Resolution and any applicable cost recovery
and indemnification agreements.
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6. Terms and Conditions of the LDDA and Ground Lease Agreement. The Parties agree to
use diligent and good faith efforts to successfully negotiate a LDDA, including a final form
of Ground Lease Agreement which would be attached to the LDDA, the conditions of
closing and delivery of the final Ground Lease Agreement, and the scope of Developer’s
obligations to design and construct improvements on the Hotel Site including, but not
limited to, project design, access to recreational amenities, and programming of the hotel.
The Parties agree that the terms of the LDDA and form of Ground Lease Agreement shall
be based on those terms set forth herein and in Exhibit B, attached hereto and incorporated
herein by reference.
7. Developer’s Studies; Right of Entry.
a. During the Term of this Agreement, Developer will bear all costs and expenses
associated with preparing any studies, surveys, plans, specifications and reports
(“Developer’s Studies”) Developer deems necessary or desirable, in Developer’s
sole discretion, to complete its due diligence for the Property. Developer’s Studies
may include, without limitation, title investigation, marketing, feasibility, soils,
seismic and environmental studies, financial feasibility analyses and design studies.
Developer will have rights of access to the Hotel Site to prepare Developer’s
Studies.
b. Developer hereby agrees to notify the City seventy-two (72) hours in advance of its
intention to enter the Hotel Site.
c. As construction commences on Phase 1 of adjacent developments by Oyster Point
Development, LLC, Developer will, with City’s support, make diligent and good
faith efforts to coordinate its development efforts with the master construction
schedule for Phase 1 to ensure there is no disruption of access to the Hotel Site.
d. Developer will provide the City with work plans, drawings, and descriptions of any
intrusive sampling it intends to do. Developer must keep the Hotel Site in a safe
condition during its entry. Developer shall repair, restore and return the Property to
its condition immediately preceding Developer’s entry thereon at Developer’s sole
expense.
e. Without limiting any other indemnity provisions set forth in this Agreement,
Developer shall indemnify, defend (with counsel approved by City) and hold the
City, its officials, officers, employees, and volunteers harmless from and against all
claims resulting from or arising in connection with entry upon the Property by
Developer or Developer’s agents, employees, consultants, contractors or
subcontractors pursuant to this Section 7. Developer’s indemnification obligations
set forth in this Section 7 shall survive the termination of this Agreement.
f. If upon expiration of the Term of this Agreement the Parties have not successfully
negotiated a LDDA and Ground Lease Agreement, Developer will, upon City’s
written request, provide City within fifteen (15) days following said date of
expiration copies of any non-proprietary Developer’s Studies prepared by third
parties completed by such date. Developer will also provide City with copies of any
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non-proprietary Developer’s Studies prepared by third parties completed after the
expiration of the Term within fifteen (15) days following completion of such
studies, or if Developer intends not to complete any such Developer Studies,
Developer will provide City with copies of such uncompleted studies.
8. City’s Reports and Studies. Within twenty (20) days following the Effective Date, City will
make available or make arrangements to make available to Developer for review or
copying at Developer’s expense all non-privileged studies, surveys, plans, specifications,
reports, and other documents with respect to the Property that City has in its possession or
control, which have not already been provided to Developer. Studies or documents
prepared by City and its agents solely for the purpose of negotiating the terms of a LDDA
and Ground Lease Agreement and related documents are not required to be provided by
City to Developer and are excluded from this requirement.
9. Developer’s Pro Forma, Evidence of Financing and Project Schedule Related to Potential
Approval of a Ground Lease.
a. At least 45 days prior to City consideration of the Project entitlements, Developer
will provide City with a pro forma for the Project that confirms the financial
feasibility of Developer’s proposed development of the Hotel Site, estimated
project budget, project schedule, and planned financing for the Project. The
parties agree that the LDDA will contain language that provides that: (1) not later
than forty-five (45) days prior to the execution and delivery of the final ground
lease, Developer will provide evidence satisfactory to City that Developer has
secured binding commitments, subject only to commercially reasonable
conditions, for all funding necessary for the successful completion of the Project,
and (2) issuance of a building permit for the Project shall be a condition of
execution and delivery of the final Ground Lease Agreement.
b. Prior to the end of the term of the ENRA, Developer will provide the City with
the following deliverables:
i. Complete schematic (35%) construction drawings;
ii. Final agreed upon termsheet for the LDDA, and the form of Ground Lease
Agreement;
iii. Proof of initial outreach conducted with key stakeholder groups, in
coordination with the City; and
iv. A short list of hotel brands that have indicated conditional interest in the
site.
10. Full Disclosure. Developer is required to make full disclosure to City of its principals;
officers; major stockholders, partners or members; joint venturers; negotiators;
development managers; consultants and directly involved managerial employees
(collectively, “Developer Parties”). Any material change in the identity of the Developer
Parties will be subject to the approval of City Manager and his or her designee, which will
not be unreasonably withheld. Developer also agrees to disclose both the type of planned
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financing and identity of any lenders or mortgagees in connection with the financing of the
Project.
11. Periodic Reporting to Governing Bodies. City will report periodically to the City Council
and other local and regional agencies, on the status of negotiations, and Developer may be
asked to attend such meetings to provide those bodies with a status update of their
development efforts related to this Agreement.
12. Confidentiality; Dissemination of Information. To the extent permitted by law, during the
term of this Agreement, each Party will obtain the consent of the other Party prior to issuing
or permitting any of its officers, employees or agents to issue any press release or other
information to the press with respect to this Agreement; provided however, no Party will
be prohibited from supplying any information to its representatives, agents, attorneys,
advisors, financing sources and others to the extent necessary to accomplish the activities
contemplated hereby so long as such representatives, agents, attorneys, advisors, financing
sources and others are made aware of the terms of this Section. Nothing contained in this
Agreement will prevent either Party at any time from furnishing any required information
to any governmental entity or authority pursuant to a legal requirement or from complying
with its legal or contractual obligations.
13. No Binding Committments. City has no legal obligation to grant any approvals or
authorizations for the ground lease of the Hotel Site or any development thereon until the
LDDA and Ground Lease Agreement have been approved by the City Council. Such
approvals, and any future approvals required as part of the entitlement process, are subject
to completion of environmental review by City in accordance with CEQA, and City shall
not take any discretionary actions committing it to a particular course of action in
connection with the Project until City has completed, considered and certified/approved
any additionally required CEQA environmental review documents.
14. Termination.
a. This Agreement may be terminated by mutual consent.
b. City will have the right to terminate this Agreement upon its good faith
determination that Developer is not proceeding diligently and in good faith to carry
out its obligations pursuant to this Agreement in accordance with the provisions set
forth in Section 1 of this Agreement.
c. Developer will have the right to terminate this Agreement upon its good faith
determination that City is not proceeding diligently and in good faith to carry out
its obligations pursuant to this Agreement in accordance with the provisions set
forth in Section 1 of this Agreement.
d. Developer will have the right to terminate this Agreement if the results of
Developer’s investigation of the Hotel Site are unsatisfactory, in Developer’s sole
and absolute discretion, with respect to Developer’s desired development activities,
or if Developer is unable to obtain other necessary approvals, rights or interests. If
Developer terminates this Agreement pursuant to this Section 14(d), then City will
return a prorated portion of the Deposit to Developer in accordance with the
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provisions of Section 5(c) of this Agreement and the remaining balance of the
Payment in accordance with the provisions of Section 5(d), and neither Party will
have any further rights against or liability to the other under this Agreement, except
as set forth in Section 15 of this Agreement.
e. Neither Party will have the right to seek an award of damages if this Agreement is
terminated pursuant to this Section.
15. Effect of Termination. Upon termination as provided herein, or upon the expiration of the
Term and any extensions thereof without the Parties having successfully negotiated a
Ground Lease Agreement, this Agreement will terminate, and there will be no further
liability or obligation on the part of either of the Parties or their respective officers,
employees, agents or other representatives; provided however, the provisions of Section 5
(Payment to City), Section 7(d) (Indemnification), Section 12 (Confidentiality;
Dissemination of Information), Section 17 (Indemnification), and Section 21 (Brokers) will
survive such termination. Provided further, that upon termination or expiration of this
Agreement without the Parties having successfully negotiated a LDDA and Ground Lease
Agreement, Developer will deliver to City any non-proprietary Developer’s Studies
pursuant to the provisions of Section 7 of this Agreement.
16. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant
to this Agreement will be made in writing, and sent to the Parties at their respective
addresses specified below or to such other address as a Party may designate by written
notice delivered to the other parties in accordance with this Section. All such notices will
be sent by:
a. Personal delivery, in which case notice is effective upon delivery;
b. Certified or registered mail, return receipt requested, in which case notice will be
deemed delivered on receipt if delivery is confirmed by a return receipt;
c. Nationally recognized overnight courier, with charges prepaid or charged to the
sender’s account, in which case notice is effective on delivery if delivery is
confirmed by the delivery service;
d. Facsimile transmission, in which case notice will be deemed delivered upon
transmittal, provided that
i. A duplicate copy of the notice is promptly delivered by first -class or
certified mail or by overnight delivery, or
ii. A transmission report is generated reflecting the accurate transmission
thereof. Any notice given by facsimile will be considered to have been
received on the next business day if it is received after 5:00 p.m. recipient’s
time or on a nonbusiness day.
City : City of South San Francisco
Attn: City Manager
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400 Grand Avenue
South San Francisco, CA 94080
Tel (650) 877-8501
Fax (650) 829-6609
[email protected]
cc: [email protected]
with a copy to: Meyers Nave
Attn: Jason Rosenberg
555 12th Street, Suite 1500
Oakland, CA 94607
Tel (510) 808-200
Fax (510) 444-1108
[email protected]
Developer: Ensemble Investments
Attn: Brian Ehrlich
2603 Camino Ramon
Suite 200
San Ramon, CA 94583
Tel (415) 652-9920
[email protected]
with a copy to: Arent Fox LLP
Attn: M.J. Pritchett
55 2nd Street, 21st Floor
San Francisco, CA 94105
Tel (415) 757-5501
Fax (415) 757-5501
[email protected]
17. Indemnification. Developer hereby covenants, on behalf of itself and its permitted
successors and assigns, to indemnify, hold harmless and defend City and its elected and
appointed officials, officers, agents, representatives and employees (“Indemnitees”) from
and against all claims, costs (including without limitation reasonable attorneys’ fees and
litigation costs) and liability, arising out of any breach of this Agreement by Developer or
arising out of or in connection with Developer’s access to and entry on the Property
pursuant to Section 7 of this Agreement; provided however, Developer will have no
indemnification obligation with respect to the gross negligence or willful misconduct of
any Indemnitee.
18. Severability. If any term or provision of this Agreement or the application thereof will, to
any extent, be held to be invalid or unenforceable, such term or provision will be ineffective
to the extent of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining terms and provisions of this Agreement or the app lication of
such terms and provisions to circumstances other than those as to which it is held invalid
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or unenforceable unless an essential purpose of this Agreement would be defeated by loss
of the invalid or unenforceable provision.
19. Entire Agreement; Amendments In Writing; Counterparts. This Agreement contains the
entire understanding of the Parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements and understandings, oral and written, between
the Parties with respect to such subject matter. This Agreement may be amended only by
a written instrument executed by the Parties or their successors in interest. This Agreement
may be executed in multiple counterparts, each of which will be an original and all of which
together will constitute one agreement.
20. Successors and Assigns; No Third-Party Beneficiaries. This Agreement will be binding
upon and inure to the benefit of the Parties and their respective successors and assigns;
provided however, that neither Party will transfer or assign any of such Party’s rights
hereunder by operation of law or otherwise without the prior written consent of the other
Party, and any such transfer or assignment without such consent will be void.
Notwithstanding the foregoing, Developer is permitted to assign this Agreement without
such written consent, provided that Developer assigns this Agreement to an entity that is
controlled by Developer. Subject to the immediately preceding sentence, this Agreement
is not intended to benefit, and will not run to the benefit of or be enforceable by, any other
person or entity other than the Parties and their permitted successors and assigns.
21. Brokers. Each Party warrants and represents to the other that no brokers have been retained
or consulted in connection with the selection of the Developer. Each Party agrees to defend,
indemnify and hold harmless the other Party from any claims, expenses, costs or liabilities
arising in connection with a breach of this warranty and representation. The terms of this
Section will survive the expiration or earlier termination of this Agreement.
22. Amendments. Unless otherwise provided in this Agreement, the City Manager will be
authorized to enter into all written amendments, consents or waivers under this Agreement
on behalf of the City without further authorization by the City Council. Nothing herein,
however, will be deemed to prevent the City Manager from requesting formal approval by
the City Council if the City Manager, in his or her sole discretion, determin es to seek such
approval.
23. Captions. The captions of the sections and articles of this Agreement are for convenience
only and are not intended to affect the interpretation or construction of the provisions
hereof.
24. Governing Law. This Agreement will be governed by and construed in accordance with
the laws of the State of California.
~ SIGNATURES ON FOLLOWING PAGE ~
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY
By: _______________________________
Mike Futrell
City Manager
ATTEST:
By: _______________________________
City Clerk
APPROVED AS TO FORM:
By: _______________________________
Jason Rosenberg
City Attorney
DEVELOPER
By: _______________________________
APPROVED AS TO FORM:
By: _______________________________
Counsel for Ensemble Investments
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Exhibit A
PROPERTY
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Exhibit B
DEVELOPMENT PROPOSAL
Criteria
Type of land use agreement Lease Disposition and Development Agreement,
with a Ground Lease Agreement as an exhibit
Proposed Ground Lease Payment $500k Base + 0.5% of Gross Revenue (or
financial equivalent) at project stabilization,
subject to CPI increases every five years
thereafter
50% TOT rebate for a ten year period
Lease Term TBD
Deposit $100,000 Deposit to be credited against future
rent under the Ground Lease.
Payment $25,000 for reimbursement of staff time, which if
exhausted, Developer may be required to provide
additional funds
ENRA Extension Payment $25,000 additional non-refundable payment for
each City approved extension of 90-days with a
maximum of two separate 90-day extension
periods
Development Type Ground-up construction hotel
Hotel Brand Full service, upper upscale or upscale hotel with:
- Complimentary services for hotel guests
and the public, which may include
restaurants, cafes, day spas, and similar
- Meeting and conference space
- Nationally-recognized brand with
competitive travel rewards program
- Customizable design like Hilton Curio or
Canopy
Proposed Height of Hotel 7 floors
Proposed Number of Rooms One full service hotel with 243 rooms
Proposed Food and Beverage 4,000 SF
Proposed Meeting Space 11,500 SF
Proposed Project Amenities Common space and open space of up to 1.5 acres
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Parking 330 stalls
Performance Milestones for:
Negotiation of a Lease
Disposition and Development
Agreement and form of
Ground Lease Agreement
Execution of Lease
Disposition and Development
Agreement
Developer will apply for a
Precise Plan, pursuant to the
Oyster Point Specific Plan
and DDA
Project Entitlement
Building Permit Issuance
Execution of Ground Lease
Agreement
Master Schedule