HomeMy WebLinkAboutOrd. 1372-2006
ORDINANCE NO. 1372-2006
AN ORDINANCE ADOPTING A DEVELOPMENT
AGREEMENT WITH ARE-SAN FRANCISCO NO. 12, LLC, FOR
A FOUR-BUILDING RESEARCH AND DEVELOPMENT
COMPLEX ON A 15.75-ACRE SITE LOCATED AT 249 EAST
GRAND AVENUE IN THE CITY OF SOUTH SAN FRANCISCO
WHEREAS, on June 15, 2006, the Planning Commission approved Use Permit UP05-
0005 to construct a four-building office/R and D cOlnplex on a 15.75-acre site located at 249
East Grand Avenue, and
WHEREAS, the applicant has requested approval of a Development Agreement which
would clarify and obligate several project features and Initigation measures including public art,
rails-to-trails improvements, and mitigation fees for traffic impacts, and
WHEREAS, the four 3- to 5-story buildings totaling approxilnately 534,500 square feet,
with 5,500 square feet of ancillary retail space and a four-level parking garage constitutes the
present proposed develoPlnent and is the project ("Project") subject to the terms of the
Developlnent Agreement ("Agreelnent"), and
WHEREAS, an Environmental Impact Report has been prepared which evaluates the
significant and potentially significant impacts of the development, the growth inducing ilnpacts
of the development, the cumulative impacts of the development, and alternatives to the proposed
project, and
WHEREAS, for those impacts identified in the Environmental Impact Report as
significant and unavoidable, a Statement of Overriding Considerations has been prepared,
indicating that the benefits of the Project outweigh the significant unavoidable effects, and
WHEREAS, an earlier Statelnent of Overriding Considerations approved by the City
Council for the update to the City's General Plan would also apply to the subject property, and
WHEREAS, pursuant to Municipal Code section 19.60.050, the Director of EconOlnic
and COlnmunity Development reviewed the application for the Agreement and found the
proposed Agreement to be in the proper form, determined that the application was complete, and
referred the application and Agreelnent to the Planning COlnlnission for a public hearing, and
WHEREAS, following properly noticed public hearings held on December 15, 2005 and
May 4, 2006, the Planning Commission held a properly noticed public hearing on June 15, 2006,
on the proposed Agreement for the 249 East Grand Avenue Agreement and recommended that
the City Council approve the Agreelnent, and
WHEREAS, on July 12,2006, pursuant to Municipal Code section 19.060.110 the City
Council conducted a property noticed public hearing on the proposed Agreement for the project.
NOW THEREFORE, the City Council of the City of South San Francisco does hereby
ordain as follows:
SECTION 1. Findings
A. The proposed Developlnent Agreement for the Project is consistent with the
objectives, policies, general land uses and programs specified in the General Plan,
as mnended and adopted. This finding is based upon all evidence in the record as
a whole, including, but not lilnited to: the City Council's independent review of
these documents. The Project provides for four 3- to 5-story buildings totaling
approximately 534,500 square feet, with 5,500 square feet of ancillary retail space
and a four-level parking garage as part of an office and research and development
complex in the Planned Industrial (P-l) Zoning District. The proposed project
complies with all zoning, subdivision and building regulations and with the
objectives, policies, general land uses and progrmns specified in the General Plan.
B. The City Council has independently reviewed the proposed Development
Agreement, the certified and adopted Housing Element, the General Plan,
Chapters 20.78 and 20.84 of the Zoning Ordinance, Title 15 of the Municipal
Code, and applicable state and federal law and has determined that the proposed
Development Agreement for the Project complies with all applicable zoning,
subdivision, and building regulations and with the General Plan. 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
recolnmendations from City staff.
C. 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 Agreelnent and its determination that Section 2 of the Agreelnent
states that the Agreement shall expire ten years from the effective date of the
Agreelnent, which shall be concurrent with the adoption of the instant ordinance.
D. The proposed Development Agreelnent incorporates the permitted uses, density
and intensity of use for the property subject thereto as reflected in the approved
Conditional Use Permit UP05-0005 by reference. 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 Developlnent Agreement and its
detennination that Section 3 of the Agreement set forth the development
standards and the documents constituting the Project.
E. The proposed Development Agreelnent states the InaxilnUln permitted height and
size of proposed buildings on the property subject thereto. This finding is based
upon all evidence in the record as a whole, including, but not lilnited to: the City
Council's independent review of the proposed Development Agreelnent and its
detennination that Section 3 of the Agreement sets forth the doculnents which
state the maximum pennitted height and size of buildings.
SECTION 2.
The City Council of the City of South San Francisco hereby approves the proposed
Developlnent Agreelnent with ARE-SAN FRANCISCO NO. 12, LLC, attached hereto as Exhibit
A and incorporated herein by reference.
SECTION 3. Severability.
In the event any section or portion of this ordinance shall be determined invalid or
unconstitutional, such section or portion shall be deelned severable and all other sections or
portions hereof shall remain in full force and effect.
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
Ineeting 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 Inembers voting for and against this
Ordinance or otherwise voting. This ordinance shall becolne effective thirty days from and after
its adoption.
*
*
*
*
*
Introduced at a regular meeting of the City Council of the City of South San Francisco,
held the 12th day of July 2006.
Adopted as an Ordinance of the City of South San Francisco at a regular Ineeting of the
City Council held the 26th day of July 2006, by the following vote:
AYES:
Councilmembers Mark N. Addiego, Pedro Gonzalez, and Karyl Matsulnoto, Vice
Mayor Richard A. Garbarino and Mayor Joseph A. F ernekes
NOES:
ABSTAIN:
ABSENT:
As Mayor of the City of South San Francisco, I do hereby approve the foregoing
Ordinance this 26th day of July 2006.
Exhibit A to Ord. 1372-2006
DEVELOPMENT AGREEMENT
249 East Grand Avenue Office/Research and Development Project
This DEVELOPMENT AGREEMENT FOR THE 249 EAST GRAND AVENUE
OFFICE/RESEARCH AND DEVELOPMENT PROJECT ("PROJECT") is dated July 26, 2006
("Agreelnent"), between ARE-SAN FRANCISCO NO. 12, LLC, a Delaware lilnited liability
company ("Owner"), and the CITY OF SOUTH SAN FRANCISCO, a Inunicipal corporation
organized and existing under the laws of the State of California ("City"). Owner and City are
collectively referred to herein as "Parties."
A. WHEREAS, California Govermnent Code Sections 65864 through 65869.5 authorize the
City to enter into binding development agreements with persons having legal or equitable
interests in real property for the develoPlnent of such property or on behalf of those persons
having smne; and,
B. WHEREAS, ARE-San Francisco No. 12, LLC, the Owner, has a legal interest in the real
property subj ect to this Agreement; and,
C. WHEREAS, pursuant to Govermnent Code Section 65865, the City has adopted rules
and regulations, elnbodied in Chapter 19.60 of the South San Francisco Municipal Code,
establishing procedures and requirelnents for adoption and execution of development
agreements; and,
D. WHEREAS, this Agreelnent concerns property consisting ofa 15.75-acre site located at
249 East Grand Avenue, as shown and more particularly described in Exhibit A attached hereto
and incorporated herein by reference ("Property"); and,
E. WHEREAS, the Owner['s parent cOlnpany] has submitted a development proposal to the
City, commonly known as the 249 East Grand Office/Research and Developlnent Project,
consisting of construction of four 3- to 5-story office/research and develoPlnent buildings,
totaling approxitnately 534,500 square feet, with 5,500 square feet of ancillary retail space and a
four-level parking garage, as depicted on the 249 East Grand Plan Set, dated
prepared by [Dowler-Gruman Architects], including application for a Use Permit dated
, attached hereto as Exhibit B and incorporated herein by reference ("Plan
Set"), to be located on the Property ("Project"); and,
F. WHEREAS, Owner has requested that the City enter into this Agreement to set forth the
rights and obligations of the parties relating to the development of the Project; and,
G. WHEREAS, all proceedings necessary for the valid adoption and execution hereof have
taken place in accordance with Government Code Sections 65864 through 65869.5, the
Page 1 of 20
249 East Grand Avenue DA
July 12, 2006
California Environmental Quality Act and Chapter 19.60 of the South San Francisco Municipal
Code; and,
H. WHEREAS, the City Council and the Planning COlnlnission have found that this
Agreelnent is consistent with the objectives, policies, general land uses and progrmns specified
in the South San Francisco General Plan as adopted on October 13, 1999 and as mnended frOln
time to time; and,
I. WHEREAS, on July 26,2006, the City Council adopted Ordinance No. 1372-2006,
approving and adopting this Agreelnent and the Ordinance thereafter took effect on August 25,
2006.
NOW, THEREFORE, the Parties, pursuant to the authority contained in Government
Code Sections 65864 through 65869.5 and Chapter 19.60 of the South San Francisco Municipal
Code and in consideration of the mutual covenants and agreelnents contained herein, agree as
follows:
1. Effective Date
Pursuant to Section 19.60.140 of the South San Francisco Municipal Code,
notwithstanding the fact that the City Council adopts an ordinance approving this
Agreement, the Agreement shall be effective and shall only create obligations for
the Parties from and after the date that the ordinance approving this Agreelnent
takes effect ("Effective Date").
2. Duration
This Agreelnent shall expire ten (10) years from the Effective Date of this Agreelnent,
but in no event later than Decelnber 31,2017. In the event that litigation to which the
City is a party against the Owner, or any of its officers, agents, employees, contractors,
representatives or consultants, should delay ilnplelnentation or construction of the Project
on the Property, the expiration date of this Agreement shall be extended for a period
equal to the length of tilne from the time the SUlnlnons and complaint is served on the
defendant(s) until the judgment entered by the court is final and not subject to appeal;
provided, however, that the total mnount of titne for which the expiration date shall be
extended as a result of such litigation shall not exceed five (5) years.
3. Proiect Description~ Development Standards For Project
The Project shall consist of four Office/Research and Development buildings totaling
approximately 534,500 square feet, 5,500 square feet of ancillary retail space, a four-level
parking garage, and related improvements as provided in the Plan Set and as approved by
the City Council.
Page 2 of 20
249 East Grand Avenue DA
July 12,2006
(a) The pennitted uses, the density and intensity of uses, the maximum heights,
locations and total area of the proposed buildings, the development schedule, the
provisions for vehicular access and parking, any reservation or dedication of land,
any public improvelnents, facilities and services, and all environmental impact
Initigation Ineasures imposed as approval conditions for the Project shall be
exclusively those provided in the Plan Set, Use Pennit, Developlnent Plan,
Environmentalltnpact Report, this Agreement (as approved by the City Council)
and the applicable ordinances in effect as of the Effective Date (including, but not
lilnited to, the applicable provisions of the South San Francisco Municipal Code
in effect as of the Effective Date), except as Inodified in this Agreelnent.
(b) Subject to Owner's fulfillment of its obligations under this Agreelnent, upon the
Effective Date of this Agreelnent, the City hereby grants to Owner a vested right
to develop and construct on the Property all the improvements for the Project
authorized by, and in accordance with the tenns of, this Agreelnent, the Plan Set
(as approved by the City Council) and the applicable ordinances in effect as of the
Effective Date.
( c) Upon such grant of right, no future amendlnents to the City General Plan, the City
Zoning Code, the City Municipal Code, or other City ordinances, policies or
regulations in effect as of the Effective Date shall apply to the Project, except
such future modifications that are not in conflict with and do not prevent the
development proposed in the Plan Set and as approved by the City Council;
provided, however, that nothing in this Agreement shall prevent or preclude the
City froln adopting any land use regulations or mnendlnents expressly permitted
herein or otherwise required by State or Federal Law.
(d) The Use Pennit granted by City shall not require an extension during the tenn of
this Agreelnent provided Owner is not in material breach of the terms of this
Agreelnent or the Conditions of Approval for said Use Permit.
4. Pennits For Project
Owner shall sublnit a Development Plan for develoPlnent of the Project within sixty (60)
days of applying for a grading pennit for any phase of the Project. The Developlnent Plan
shall address, at a Ininilnum, the landscaping and common improvements required for
each phase of the Project. In connection with said Development Plan, Owner shall
provide to the City an Irrevocable Letter of Credit substantially in the form attached as
Exhibit C, reasonably approved by the City Attorney, in an amount equal to One Hundred
Twenty Five Percent (125%) of the estimated reasonable costs to construct the
landscaping and cormnon improvements identified in the approved Developlnent Plan for
the phase to be covered by the grading permit. Said Letter of Credit shall be submitted
within sixty (60) days of receiving a grading permit for any phase of the Project. The City
may draw under the Letter of Credit as provided below to complete the landscaping and
comlnon improvements and to reimburse the City for costs related thereto. The Letter of
Credit shall be reduced as the landscaping and common improvements are completed by
Page 3 of 20
249 East Grand Avenue DA
July 12,2006
Owner and accepted by City in an mnount equal to the cOlnpleted improvelnents and
landscaping's proportionate share of the original estimated reasonable costs to construct
the landscaping and comlnon itnprovelnents identified in the approved Development Plan
for the phase to be covered by the grading permit.
If Owner fails to complete the landscaping and comlnon ilnprovelnents for a phase of the
Project prior to Owner's application for a Certificate of Occupancy for any building in the
next phase of the Project or Owner fails to cOlnplete the landscaping and common
itnprovements for the final phase of the Project prior to Owner's application for a
Certificate of Occupancy for the final building to be constructed as part of the Project,
City may give Owner written notice of such failure and City shall be entitled to withdraw
funds from the Letter of Credit and complete said landscaping and COlnlnon
ilnprovements if Owner does not so cOlnplete the same within 90 days after receiving
City's notice of such failure. City shall also be entitled to draw funds under the Letter of
Credit in the event Owner obtains a grading permit for any phase of the Project and (1)
Owner fails to request a building pennit or Certificate of Occupancy for any building
within that phase by Decelnber 31, 2016; or (2) Owner fails to complete the landscaping
and common improvements for that phase by Decelnber 31,2016.
For each phase, the City shall issue building pennits and Certificates of Occupancy only
after the City has reviewed and approved Owner's applications therefor. City staff review
of applications for permits or other certificates or approvals shall be lilnited to
determining whether the following conditions are Inet:
(a) The application is complete; and,
(b) Owner has cOlnplied with the conditions of the City Council's approval of the
Project, all applicable Uniform Codes, the South San Francisco Municipal Code,
CEQA requirelnents, including any required mitigation measures, governing
issuance of such permits or certificates and Federal and State Laws; and,
(c) Owner has obtained Design Review approval for the Project, including required
approval of Landscaping and Common Improvelnents; and,
(d) All applicable processing, adlninistrative and legal fees have been paid subject to
the provisions of this Agreement; and,
(e) For Certificates of Occupancy only, Owner has completed, and City has
approved, the landscaping and common improvements for earlier phases of the
Project.
5. Vesting of Approvals
Upon the City's approval of the Design Review, Parcel Map, Planned Unit Development,
Transportation Delnand Managelnent Plan, Use Pennit and this Agreement, such
approvals shall vest in Owner and its successors and assigns for the term of this
Agreement, provided that the successors and assigns comply with the terms and
Page 4 of 20
249 East Grand Avenue DA
July 12,2006
conditions of all of the foregoing, including, but not litnited to, sublnission of insurance
certificates and bonds for the grading of the Property and construction of itnprovements.
6. Cooperation Between Parties in Implementation of This Agreelnent
It is the Parties' express intent to cooperate with one another and diligently work to
ilnplelnent all land use and building approvals for development of the Property in
accordance with the terms of this Agreement. Accordingly, the Owner and City shall
proceed in a reasonable and titnely Inanner, in compliance with the deadlines Inandated
by applicable agreelnents, statutes or ordinances, to cOlnplete all steps necessary for
implelnentation of this Agreement and development of the Property in accordance with
the terms of this Agreelnent. The City shall proceed in an expeditious manner to
cOlnplete all actions required for the development of the Project, including but not lilnited
to the following:
(a) Scheduling all required public hearings by the City Council and City Planning
Commission; and
(b) Processing and checking all maps, plans, permits, building plans and
specifications and other plans relating to developlnent of the Property filed by
Owner or its nOlninee, successor or assign as necessary for develoPlnent of the
Property, and inspecting and providing acceptance of or COlnlnents on work by
Owner that requires acceptance or approval by the City.
Owner, in a timely Inanner, shall provide City with all documents, applications, plans and
other information necessary for the City to carry out its obligations hereunder and to
cause its planners, engineers and all other consultants to submit in a tilnely Inanner all
necessary materials and doculnents.
7. Acquisition of Other Property~ Eminent DOlnain
In order to facilitate and insure development of the Project in accordance with the Plan
Set and the City Council's approval, the City may assist Owner, at Owner's request and
at Owner's sole cost and expense, in acquiring any easements or properties necessary for
the satisfaction and cOlnpletion of any off-site components of the Project required by the
City Council to be constructed or obtained by Owner in the Council's approval of the
Project and the Plan Set, in the event Owner is unable to acquire such easements or
properties or is unable to secure the necessary agreelnents with the applicable property
owners for such easements or properties. Owner expressly acknowledges that the City is
under no obligation to use its power of Eminent DOlnain.
8. Maintenance Obligations on Property
All of the Property subject to this Agreement shall be maintained by Owner or its
successors in perpetuity in accordance with City requirelnents to prevent accumulation of
litter and trash, to keep weeds abated, and to provide erosion control, and other
Page 5 of 20
249 East Grand Avenue DA
July 12, 2006
requirelnents set forth in the South San Francisco Municipal Code, subject to City
approval.
(a) If Owner subdivides the property or otherwise transfers ownership of a parcel or
building in the Project to any person or entity such that the Property is no longer
under single ownership, Owner shall first establish an Owner's Association and
submit Conditions, Covenants and Restrictions ("CC&Rs") to the City for review
and approval by the City Attolney. Said CC&Rs shall satisfy the requirelnents of
Municipal Code section 19.36.040.
(b) Any provisions of said CC&Rs governing the Project relating to the maintenance
obligations under this section shall be enforceable by the City.
9. Fees
No fee requirements (except those identified herein) ilnposed by the City on or after the
Effective Date of this Agreement and no changes to existing fee requirements (except
those currently subject to annual increases as specified in the adopting or implementing
Resolutions and Ordinances) that occur on or after the Effective Date of this Agreement,
shall apply to the Project. Owner shall not be responsible for any fees imposed by the
City in connection with the development and construction of the Project, except as
otherwise set forth in this Agreement, the Use Pennit, the Planned Unit Development
Pennit, and those in existence as of the Effective Date of this Agreement.
(a) Revised Application Fees. Any existing application, processing, adlninistrative,
legal and inspection fees that are revised during the tenn of this Agreement shall
apply to the Project provided that (1) such fees have general applicability; (2) the
application of such fees to the Property is prospective; and (3) the application of
such fees would not prevent developlnent in accordance with this Agreelnent.
10. New Taxes
Any subsequently enacted city-wide taxes shall apply to the Property provided that: (1)
the application of such taxes to the Property is prospective; and (2) the application of
such taxes would not prevent developlnent in accordance with this Agreelnent.
11. Assessments
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 asseSSlnent of property to pay for
infrastructure and/or services which benefit the Property.
12. Additional Conditions
Owner shall comply with all of the following requirements:
Page 6 of 20
249 East Grand Avenue DA
July 12,2006
(a) Traffic Ilnpact Fees. Owner shall pay the following Traffic Impact Fees:
1. Oyster Point Overpass Fees - Oyster Point Overpass fees shall be
detennined based on the application of the fonnula in effect as of the tilne
such Oyster Point Overpass Fees become due and payable. The City and
developer agree that the approxilnately 5,500 sq. ft. of ancillary retail
space will be treated as "General Office Building" for purposes of
calculating the Oyster Point Overpass fees.
2. East of 101 Traffic Impact Fee East of 101 Traffic Impact fees shall be
determined based on the application of the fonnula in effect as of the titne
such East of 101 Traffic Impact Fees becOlne due and payable. The City
and developer agree that the approximately 5,500 sq. ft. of ancillary retail
space will be treated as "Office/R&D" for purposes of calculating the East
of 101 Traffic Impact Fee.
(b) Rails to Trails ltnprovements.
1. Should the rail corridor abutting the north boundary of the Property, and
identified in the General Plan as a future bike path, become available for
public use prior to July 31, 2011, the City may elect, at the City's option to
be exercised in the City's reasonable discretion, to have Owner either
install the improvements described in subsection 12(b) l.i. below for the
portion of the corridor that directly abuts the Property or provide the cost
estilnates and funds described in subsection 12(b )2. below. The City shall
give Owner written notice of its election.
1. If the City so elects, Owner shall install improvements at its sole
cost and expense for the portion of the corridor that directly abuts
the Property. Said improvelnents shall include, but not be litnited
to, paving, lighting, and landscaping of a design and scope
consistent with standard portions of the City's then existing Rails
to Trails corridor of the Bay Trail.
11. Pursuant to Owner's obligation to install said improvelnents,
Owner shall submit plans, including a cost estilnate, for the
itnprovements, to the City for review and approval. Owner shall
complete construction of said improvelnents by the later of (A) the
date that is two (2) years after the City gives Owner written notice
that the City has elected to have Owner construct said
itnprovements, and (B) Decelnber 31,2013.
2. If the City does not elect to have Owner construct the improvements
described in subsection 12(b) l.i. above or the rail corridor abutting the
north boundary of the Property does not become available for public use
Page 7 of 20
249 East Grand Avenue DA
July 12,2006
prior to July 31, 2011, then, prior to expiration of the Development
Agreement:
1. Owner shall (1) provide City with a cost estimate, subject to City
review and approval, of the costs that would be required for the
improvements described in subsection 12(b) 1. above; and (2)
provide to the City the funds described in the cost estilnate, to be
used by the City solely to upgrade substandard portions of the
City's then existing Bay Trail.
11. Owner shall provide said cost estitnate and funds prior to issuance
of a Certificate of Occupancy for the final building to be
constructed as part of the Project, but no later than December 31,
2013.
3. If at any time the City decides to fonn an asseSSlnent district with the
objective of acquiring and completing a rails to trails conversion for the
rail corridor abutting the north boundary of the Property, Owner agrees not
to oppose the formation of such a district.
( c) Public Art Contribution. Owner shall install and provide artwork for public
display in the Project. Said artwork shall cost in the aggregate no less than Five
Hundred Forty Thousand Dollars ($540,000), and shall be installed on the Project
site on or before the earlier of (i) the date on which Owner receives a Certificate
of Occupancy for the final building to be constructed as part of the Proj ect, and
(ii) Decelnber 31,2014.
The artwork to be installed by Owner shall be subject to the reasonable approval
of the City of South San Francisco prior to installation. Artwork installed pursuant
to this section shall be maintained by Owner or, in the event Owner's interest in
the property is conveyed or subdivided, by Owner's successors, or, if applicable,
by the Owner's Association for the Project. If an association of owners is created,
said maintenance obligations and a budget related thereto shall be included in the
CC&Rs for the Proj ect. If Owner fails to complete installation of the required
artwork on or before December 31,2014, Owner shall be required to pay an in-
lieu fee for such artwork in the amount of Five Hundred Forty Thousand Dollars
($540,000), less the documented cost of any public artwork actually installed by
Owner in the Project provided the art work installed by Owner was approved by
the City prior to installation. In the event the art in-lieu fee is paid, the costs/value
of the artwork to be installed shall be adjusted annually on January 1 st beginning
in 2007 in an mnount equal to the lesser of (x) the percentage change in the
Engineering News Record Construction Costs Index for the San Francisco Bay
Area, and (y) three percent (3%). The in-lieu fee shall be paid on or before
January 31, 2015.
Page 8 of 20
249 East Grand Avenue DA
July 12, 2006
( d) Transportation Delnand Managelnent. Owner shall prepare an annual
Transportation Demand Managelnent (TDM) report, and submit smne to City, to
document the effectiveness of the TDM plan in achieving the goal of32%
alternative mode usage by employees within the Project. The TDM report will be
prepared by an independent consultant, retained by City with the approval of
Owner (which approval shall not be unreasonably withheld or delayed) and paid
for by Owner, which consultant will work in concert with Owner's TDM
coordinator. The TDM report will include a determination of historical elnployee
comlnute Inethods, which infonnation shall be obtained by survey of all
elnployees working in the buildings on the Property. All non-responses will be
counted as a drive alone trip.
1. TDM Reports: The initial TDM report for each building on the Property
will be sublnitted two (2) years after the granting of a Certificate of
Occupancy with respect to the building, and this requirement will apply to
all buildings on the Property except the parking facilities. The second and
all later reports with respect to each building shall be included in an
annual comprehensive TDM report sublnitted to City covering all of the
buildings on the Property which are submitting their second or later TDM
reports.
1. Report Requirements: The goal of the TDM program is to encourage
alternative mode usage, as defined in Chapter 20.120 of the South San
Francisco Municipal Code. The initial TDM report shall either: (1)
state that the applicable property has achieved 32% alternative mode
usage, providing supporting statistics and analysis to establish
attaimnent of the goal; or (2) state that the applicable property has not
achieved the 32% alternative Inode usage, providing an explanation of
how and why the goal has not been reached, and a description of
additionallneasures that will be adopted in the coming year to attain
the TDM goal of 32% alternative Inode usage.
11. Penalty for Non-Compliance: If, after the initial TDM report,
subsequent annual reports indicate that, in spite of the changes in the
TDM plan, the 32% alternative mode usage is still not being achieved,
or if Owner fails to sublnit such a TDM report at the times described
above, City may assess Owner a penalty in the mnount of Fifteen
Thousand Dollars ($15,000.00) per year for each percentage point
below the minimuln 32% alternative mode usage goal.
a. In determining whether a financial penalty is appropriate, City may
consider whether Owner has made a good faith effort to meet the
TDM goals.
b. If City determines that Owner has Inade a good faith effort to meet
the TDM goals but a penalty is still imposed, and such penalty is
Page 9 of 20
249 East Grand Avenue DA
July 12,2006
itnposed within the first three (3) years of the TDM plan
(colnmencing with the first year in which a penalty could be
imposed), such penalty sums, in the City's sole discretion, Inay be
used by Owner toward the implementation of the TDM plan
instead of being paid to City. If the penalty is used to itnplement
the TDM Plan, an ltnplelnentation Plan shall be reviewed and
approved by the City prior to expending any penalty funds.
c. Notwithstanding the foregoing, the amount of any penalty shall
bear the smne relationship to the maxilnuln penalty as the
completed construction to which the penalty applies bears to the
maxilnuln mnount of square feet of Office, Comlnercial, Retail and
Research and Development use permitted to be constructed on the
Property. For example, if there is 200,000 square feet of cOlnpleted
construction on the Property included within the TDM report with
respect to which the penalty is imposed, the penalty would be
determined by Inultiplying Fifteen Thousand Dollars ($15,000.00)
times a fraction, the nUlnerator of which is 200,000 square feet and
the denominator of which is the maximum alnount of square feet
of construction permitted on the Property, subtracting the square
footage of the parking facilities; this amount would then be
multiplied by the number of percentage points below the 320/0
alternative Inode usage goal.
d. The provisions of this section are incorporated as Conditions of
Approval for the Project and shall be included in the approved
TDM for the Project.
13. Indelnni ty
Owner agrees to indetnnify, defend (with counsel selected by City subject to the
reasonable approval of Owner) and hold hannless City, and its elected and appointed
councils, boards, cOlnmissions, officers, agents, elnployees, and representatives from any
and all claims, costs (including legal fees and costs) and liability for any personal injury
or property damage which may arise directly or indirectly as a result of any actions or
inactions by the Owner, or any actions or inactions of Owner's contractors,
subcontractors, agents, or employees in connection with the construction, improvelnent,
operation, or maintenance of the Project, provided that Owner shall have no
indelnnification obligation with respect to gross negligence or willful misconduct of City,
its contractors, subcontractors, agents or employees or with respect to the maintenance,
use or condition of any public improvelnent after the time it has been dedicated to and
accepted by the City or another public entity (except as provided in an improvement
agreement or maintenance bond).
Page 10 of 20
249 East Grand Avenue DA
July 12,2006
14. Interests of Other Owners
Owner has no knowledge of any reason why Owner, and any other persons holding legal
or equitable interests in the Property as of the Effective Date of this Agreelnent, will not
be bound by this Agreelnent.
15. Assignment
(a) Right to Assign. Owner Inay at any time or frOln time to time transfer its right,
title or interest in or to all or any portion of the Property. In accordance with
Government Code Section 65868.5, the burdens of this Agreelnent shall be
binding upon, and the benefits of this Agreelnent shall inure to, all successors in
interest to Owner. As a condition precedent to any such transfer, Owner shall
require the transferee to acknowledge in writing that transferee has been
informed, understands and agrees that the burdens and benefits under this
Agreement relating to such transferred property shall be binding upon and inure to
the benefit of the transferee.
(b) Notice of Assignment or Transfer. No transfer, sale or assigmnent of Owner's
rights, interests and obligations hereunder shall occur without the prior written
notice to City and approval by the City Manager, which approval shall not be
unreasonably withheld or delayed. The City Manager shall consider and decide
the matter within 10 days after Owner's notice, provided all necessary doculnents,
certifications and other information are provided to the City Manager.
(c) Exception for Notice. Notwithstanding Section 15(b), Owner may at any time,
upon notice to City but without the necessity of any approval by the City, transfer
the Property or any part thereof and all or any part of Owner's rights, interests and
obligations hereunder to: (i) any subsidiary, affiliate, parent or other entity which
controls, is controlled by or is under common control with Owner, (ii) any
member or partner of Owner or any subsidiary, parent or affiliate of any such
Inelnber or partner, or (iii) any successor or successors to Owner by merger,
consolidation, non-bankruptcy reorganization or government action. As used in
this paragraph, "control" shalllnean the possession, directly or indirectly, of the
power to direct or cause the direction of management or policies, whether through
the ownership of voting securities, partnership interest, contracts (other than those
that transfer Owner's interest in the property to a third party not specifically
identified in this subsection ( c)) or otherwise.
(d) Release Upon Transfer. Upon the transfer, sale, or assignment of all of Owner's
rights, interests and obligations hereunder pursuant to Section 15(a), Section 15(b)
or Section 15( c) of this Agreement, Owner shall be released frOln the obligations
under this Agreelnent, with respect to the Property transferred, sold, or assigned,
arising subsequent to the date of City Manager approval of such transfer, sale, or
assignment or the effective date of such transfer, sale or assigmnent, whichever
occurs later; provided, however, that if any transferee, purchaser or assignee
Page 11 of 20
249 East Grand Avenue DA
July 12, 2006
approved by the City Manager expressly assumes any right, interest or obligation
of Owner under this Agreelnent, Owner shall be released with respect to such
rights, interests and assulned obligations. In any event, the transferee, purchaser
or assignee shall be subject to all the provisions hereof and shall provide all
necessary documents, certifications and other necessary information prior to City
Manager approval.
(e) Owner's Right to Retain Specified Rights or Obligations. Notwithstanding
Sections 15(a) and 15(c), Owner Inay withhold from a sale, transfer or assignment
of this Agreement certain rights, interests and/or obligations which Owner shall
retain, provided that Owner specifies such rights, interests and/or obligations in a
written doculnent to be appended to or Inaintained with this Agreelnent and
recorded with the San Mateo County Recorder prior to or concurrently with the
sale, transfer or assignment of the Property. Owner's purchaser, transferee or
assignee shall then have no interest or obligations for such retained rights,
interests and obligations and this Agreelnent shall relnain applicable to Owner
with respect to such retained rights, interests and/or obligations.
(f) Time for Notice. Within ten (10) days of the date escrow closes on any such
transfer, Owner shall notify the City in writing of the name and address of the
transferee. Said notice shall include a statelnent as to the obligations, including
any mitigation measures, fees, itnprovements or other conditions of approval,
assulned by the transferee. Any transfer which does not comply with the notice
requirements of this section and Section 15(b) shall not release the Owner frOln its
obligations to the City under this Agreement until such time as the City is
provided notice in accordance with Section 15(b).
16. Insurance
(a) Public Liability and Property Dmnage Insurance. During the term of this
Agreement, Owner shall maintain in effect a policy of cOlnprehensive general
liability insurance with a per-occurrence cOlnbined single limit of not less than ten
million dollars ($10,000,000.00) and a deductible of not Inore than ten thousand
dollars ($10,000.00) per claim. The policy so maintained by Owner shall name
the City as an additional insured and shall include either a severability of interest
clause or cross-liability endorsement.
(b ) Workers Compensation Insurance. During the term of this Agreelnent Owner
shall maintain Worker's Compensation insurance for all persons employed by
Owner for work at the Project site. Owner shall require each contractor and
subcontractor similarly to provide Worker's COlnpensation insurance for its
respective employees. Owner agrees to indemnify the City for any damage
resulting from Owner's failure to maintain any such required insurance.
( c) Evidence of Insurance. Prior to City Council approval of this Agreement, Owner
shall furnish City satisfactory evidence of the insurance required in subsections
Page 12 of 20
249 East Grand Avenue DA
July 12,2006
( a) and (b) and evidence that the carrier will provide the City at least ten (10) days
prior written notice of any cancellation or reduction in coverage of a policy if the
reduction results in coverage less than that required by this Agreement.
1. In the event of a reduction (below the limits required in this Agreement) or
cancellation in coverage, or change in insurance carriers or policies,
Owner shall, prior to such reduction, cancellation or change, provide at
least ten (10) days prior written notice to City, regardless of any
notification by the applicable insurer. If the City discovers that the policies
have been cancelled or reduced below the lilnits required in this
Agreement and no notice has been provided by either insurer or Owner,
said failure shall constitute a Inaterial breach of this Agreement.
2. In the event of a reduction (below the litnits required by this Agreement)
or cancellation in coverage, Owner shall have five (5) days in which to
provide evidence of the required coverage during which titne no persons
shall enter the Property to construct improvelnents thereon, including
construction activities related to the landscaping and common
improvements. Additionally, no persons not employed by existing tenants
shall enter the Property to perfonn such works until such titne as the City
receives evidence of substitute coverage.
3. If Owner fails to obtain substitute coverage within five (5) days, City Inay
obtain, but is not required to obtain, substitute coverage and charge Owner
the cost of such coverage plus an adlninistrative fee equal to ten percent
(10%) of the prelnium for said coverage.
(d) The insurance shall include the City, its elective and appointive boards,
comlnissions, officers, agents, employees and representatives as additional
insureds on the policy.
17. Covenants Run With The Land
The tenns of this Agreement are legislative in nature, and apply to the Property as
regulatory ordinances. During the term of this Agreelnent, all of the provisions,
agreelnents, rights, powers, standards, terms, covenants and obligations contained in this
Agreelnent shall run with the land and shall be binding upon the Parties and their
respective heirs, successors (by merger, consolidation or otherwise) and assigns,
devisees, administrators, representatives, lessees and all other persons or entities
acquiring the Property, any lot, parcel or any portion thereof, and any interest therein,
whether by sale, operation of law or other manner, and they shall inure to the benefit of
the Parties and their respective successors.
18. Conflict with State or Federal Law
In the event that State or Federal laws or regulations, enacted after the Effective Date,
prevent or preclude compliance with one or more provisions of this Agreement, such
Page 13 of 20
249 East Grand Avenue DA
July 12, 2006
provisions of this Agreement shall be Inodified (in accordance with Section 19 set forth
below) or suspended as Inay be necessary to comply with such State or Federal laws or
regulations. Notwithstanding the foregoing, Owner shall have the right to challenge, at its
sole cost, in a court of competent jurisdiction, the law or regulation preventing
compliance with the tenns of this Agreelnent and, if the challenge in a court of cOlnpetent
jurisdiction is successful, this Agreelnent shall remain unmodified and in full force and
effect.
19. Procedure for Modification Due to Conflict with State or Federal Laws
In the event that state or federal laws or regulations enacted after the Effective Date of
this Agreelnent prevent or preclude compliance with one or more provisions of this
Agreelnent or require changes in plans, Inaps or permits approved by the City, the parties
shall meet and confer in good faith in a reasonable attempt to Inodify this Agreement to
cOlnply with such federal or state law or regulation. Any such mnendment or suspension
of the Agreelnent shall be approved by the City Council in accordance with Chapter
19.60 of the South San Francisco Municipal Code.
20. Periodic Review
During the term of this Agreelnent, the City shall conduct "annual" and/or "special"
reviews of Owner's good faith compliance with the terms and conditions of this
Agreelnent in accordance with the procedures set forth in Chapter 19.60 of the South San
Francisco Municipal Code. City Inay recover reasonable costs incurred in conducting said
review, including staff time expended and attorney's fees.
21. Amendlnent or Cancellation of Agreement
This Agreelnent may be further amended or terminated only in writing and in the manner
set forth in Govermnent Code Sections 65865.1, 65867.5, 65868, 65868.5 and Chapter
19.60 of the South San Francisco Municipal Code.
22. Agreement is Entire Agreement
This Agreelnent and all exhibits attached hereto or incorporated herein contain the sole
and entire Agreelnent between the parties concerning the Property. The parties
acknowledge and agree that neither of theln has made any representation with respect to
the subject matter of this Agreelnent or any representations inducing the execution and
delivery hereof, except representations set forth herein, and each party acknowledges that
it has relied on its own judgment in entering this Agreelnent. The parties further
acknowledge that all statements or representations that heretofore may have been made
by either of them to the other are void and of no effect, and that neither of them has relied
thereon in its dealings with the other.
23. Events of Default
Page 14 of 20
249 East Grand Avenue DA
July 12,2006
Owner shall be in default under this Agreelnent upon the happening of one or more of the
following events:
(a) If a warranty, representation or statelnent made or furnished by Owner to the City
is false or proves to have been false in any Inaterial respect when it was Inade; or,
(b) A finding and detennination by the City Inade following an annual or special
review under the procedure provided for in Government Code Section 65865.1
and Chapter 19.60 of the South San Francisco Municipal Code that, upon the
basis of substantial evidence, Owner has not complied in good faith with the
tenns and conditions of this Agreelnent; or,
( c) Owner fails to fulfill any of its obligations set forth in this Agreelnent and such
failure continues beyond any applicable cure period provided in this Agreement.
This provision shall not be interpreted to create a cure period for any event of
default where such cure period is not specifically provided for in this Agreement.
24. Procedure upon Default
(a) Upon the occurrence of an event of default, City Inay tenninate or Inodify this
Agreelnent in accordance with the provisions of Govermnent Code Section
65865.1 and of Chapter 19.60 of the South San Francisco Municipal Code.
(b) The City shall not be deelned to have waived any claitn of defect in Owner's
perfonnance if, on annual or special review, the City does not propose to
tenninate this Agreement.
(c) No waiver or failure by the City or Owner to enforce any provision of this
Agreement shall be deelned to be a waiver of any provision of this Agreelnent or
of any subsequent breach of the smne or any other provision.
(d) Any actions for breach of this Agreement shall be decided in accordance with
California law. The remedy for breach of this Agreelnent shall be limited to
specific performance.
( e) The City shall give Owner written notice of any default under this Agreelnent,
and Owner shall have thirty (30) days after the date of the notice to cure the
default or to reasonably commence the procedures or actions needed to cure the
default; provided, however, that if such default is not capable of being cured
within such thirty (30) day period, Owner shall have such additional time to cure
as is reasonably necessary.
Page 15 of 20
249 East Grand Avenue DA
July 12,2006
25. Attorneys Fees and Costs
If legal action by either Party is brought because of breach of this Agreen1ent or to
enforce a provision of this Agreement, the prevailing Party is entitled to reasonable
attorney's fees and court costs.
(a) Action by Third Party. If any person or entity not a party to this Agreelnent
initiates an action at law or in equity to challenge the validity of any provision of
this Agreement or the Project Approvals, the parties shall cooperate in defending
such action. Owner shall bear its own costs of defense as a real party in interest in
any such action, and shall reilnburse City for all reasonable court costs and
attorneys' fees expended by City in defense of any such action or other
proceeding.
26. Severability
If any material term or condition of this Agreement is for any reason held by a final
judgment of a court of cOlnpetent jurisdiction to be invalid, and if the smne constitutes a
Inaterial change in the consideration for this Agreelnent, then either Party Inay elect in
writing to invalidate this entire Agreelnent, and thereafter this entire Agreement shall be
deemed null and void and of no further force or effect following such election.
27. No Third Parties Benefited
No person other than the City, Owner, or their respective successors is intended to or
shall have any right or claitn under this Agreelnent, this Agreement being for the sole
benefit and protection of the parties hereto and their respective successors. Similarly, no
amendment or waiver of any provision of this Agreement shall require the consent or
acknowledgment of any person not a Party or successor to this Agreement.
28. Binding Effect of Agreement
The provisions of this Agreement shall bind and inure to the benefit of the Parties
originally named herein and their respective successors and assigns.
29. Relationship of Parties
It is understood that this Agreement is a contract that has been negotiated and voluntarily
entered into by City and Owner and that the Owner is not an agent of City. The parties do
not intend to create a partnership, joint venture or any other joint business relationship by
this Agreement. The City and Owner hereby renounce the existence of any fonn of joint
venture or partnership between them, and agree that nothing contained herein or in any
document executed in connection herewith shall be construed as making the City and
Owner joint venturers or partners. Neither Owner nor any of Owner's agents or
contractors are or shall be considered to be agents of City in connection with the
performance of Owner's obligations under this Agreement.
Page 16 of 20
249 East Grand Avenue DA
July 12,2006
30. Bankruptcy
The obligations of this Agreement shall not be dischargeable in bankruptcy.
31. Mortgagee Protection: Certain Rights of Cure
(a) Mortgagee Protection. This Agreement shall be superior and senior to all liens
placed upon the Property or any portion thereof after the date on which this
Agreelnent or a Inemorandum of this AgreeInent is recorded, including the lien of
any deed of trust or Inortgage ("Mortgage"). Notwithstanding the foregoing, no
breach hereof shall defeat, render invalid, dilninish or ilnpair the lien of any
Mortgage Inade in good faith and for value, but all of the tenns and conditions
contained in this Agreelnent shall be binding upon and effective against all
persons and entities, including all deed of trust beneficiaries or mortgagees
("Mortgagees"), who acquire title to the Property or any portion thereofby
foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise.
(b) Mortgagee Not Obligated. No foreclosing Mortgagee shall have any obligation or
duty under this Agreement to construct or cOlnplete the construction of any
improvelnents required by this AgreeInent, or to pay for or guarantee construction
or cOInpletion thereof. City, upon receipt of a written request therefor fro In a
foreclosing Mortgagee, shall pennit the Mortgagee to succeed to the rights and
obligations of Owner under this Agreement, provided that all defaults by Owner
hereunder that are reasonably susceptible of being cured are cured by the
Mortgagee as soon as is reasonably possible. The foreclosing Mortgagee
thereafter shall cOInply with all of the provisions of this Agreelnent.
(c) Notice of Default to Mortgagee. If City receives notice from a Mortgagee
requesting a copy of any notice of default given to Owner hereunder and
specifying the address for service thereof, City shall deliver to the Mortgagee
concurrently with service thereof to Owner, all notices given to Owner describing
all claims by the City that Owner has defaulted hereunder. If City determines that
Owner is in noncompliance with this Agreement, City also shall serve notice of
noncOlnpliance on the Mortgagee, concurrently with service thereof on Owner.
Each Mortgagee shall have the right during the smne period available to Owner to
cure or reInedy, or to comlnence to cure or reInedy, the condition of default
claimed or the areas of noncompliance set forth in City's notice.
32. Estoppel Certificate
Either party from time to time may deliver written notice to the other party requesting
written certification that, to the knowledge of the certifying party, (i) this Agreelnent is in
full force and effect and constitutes a binding obligation of the parties; (ii) this
AgreeInent has not been amended or modified either orally or in writing, or, if it has been
amended or modified, specifying the nature of the amendments or Inodifications; and (iii)
the requesting party is not in default in the performance of its obligations under this
Agreement, or if in default, describing therein the nature and Inonetary amount, if any, of
Page 17 of 20
249 East Grand Avenue DA
July 12,2006
the default. A party receiving a request hereunder shall endeavor to execute and return
the certificate within ten (10) days after receipt thereof, and shall in all events execute
and return the certificate within thirty (30) days after receipt thereof. However, a failure
to return a certificate within ten (10) days shall not be deelned a default of the party's
obligations under this Agreelnent and no cause of action shall arise based on the failure
of a party to execute such certificate within ten (10) days. The City Manager shall have
the right to execute the certificates requested by Owner hereunder provided the certificate
is requested within six (6) Inonths of the annual or special review. City acknowledges
that a certificate hereunder may be relied upon by pennitted transferees and Mortgagees.
At the request of Owner, the certificates provided by City establishing the status of this
Agreement with respect to any lot or parcel shall be in recordable form, and Owner shall
have the right to record the certificate for the affected portion of the Property at its cost.
33. Force Maieure
Notwithstanding anything to the contrary contained herein, either Party shall be excused
for the period of any delay in the perfonnance of any of its obligations hereunder, except
the payment oflnoney, when prevented or delayed from so doing by certain causes
beyond its control, including, and limited to, major weather differences from the normal
weather conditions for the South San Francisco area, war, acts of God or of the public
enemy, fires, explosions, floods, earthquakes, invasions by non-United States armed
forces, failure of transportation due to no fault of the Parties, unavailability of equiplnent,
supplies, materials or labor when such unavailability occurs despite the applicable Party's
good faith efforts to obtain same (good faith includes the present and actual ability to pay
market rates for said equipment, Inaterials, supplies and labor), strikes of elnployees other
than Owner's, freight eInbargoes, sabotage, riots, acts of terrorism and acts of the
government. The Party claitning such extension of titne to perfonn shall send written
notice of the claitned extension to the other Party within thirty (30) days from the
COlnmencement of the cause entitling the Party to the extension.
34. Rules of Construction and Miscellaneous Terms
(a) The singular includes the plural; the Inasculine gender includes the feminine;
"shall" is Inandatory, "may" is permissive.
(b) Time is and shall be of the essence in this Agreement.
( c) Where a Party consists of Inore than one person, each such person shall be jointly
and severally liable for the perfonnance of such Party's obligation hereunder.
(d) The captions in this AgreeInent are for convenience only, are not a part of this
Agreement and do not in any way liInit or amplify the provisions thereof.
(e) This Agreement shall be interpreted and enforced in accordance with the laws of
the State of California in effect on the date thereof.
Page 18 of 20
249 East Grand Avenue DA
July 12,2006
35. Exhibi ts
Exhibit A - Map and Legal Description of Property
Exhibit B Use Pennit, including Plan Set and Conditions of Project Approval
Exhibit C - Fonn Irrevocable Letter of Trust
36. Notices
All notices required or provided for under this Agreelnent shall be in writing and
delivered in person (to include delivery by courier) or sent by certified Inail, postage
prepaid, return receipt requested or by overnight delivery service. Notices to the City
shall be addressed as follow:
City Clerk
P.O. Box 711, 400 Grand Avenue
South San Francisco, CA 94080
Notices to Owner shall be addressed as follows:
ARE-San Francisco No. 12, LLC
c/o Alexandria Real Estate Equities
385 E. Colorado Boulevard, Suite 299
Pasadena, CA 91101
Fax:. (626) 578-7318
Attn: Corporate Secretary
A party Inay change its address for notice by giving notice in writing to the other party
and thereafter notices shall be addressed and translnitted to the new address.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Page 19 of 20
249 East Grand Avenue DA
July 12,2006
IN WITNESS WHEREOF this AgreeInent has been executed by the parties on the day and
year first above written.
CITY OF SOUTH SAN FRANCISCO
By:
Barry M. Nagel, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM
Steven T. Mattas, City Attorney
OWNER
ARE-SAN FRANCISCO NO. 12, LLC,
a Delaware limited liability company
By: Alexandria Real Estate Equities,
L.P., a Delaware limited partnership,
Its Managing MeInber
By: ARE-QRS CORP.,
a Maryland corporation,
Its General Partner
By:
Name:
Title:
833875 1
Page 20 of 20
249 East Grand Avenue DA
July 12, 2006
EXHIBIT A
PROPERTY DESCRIPTION
All that certain real property in the City of South San Francisco, County of San Mateo,
State of California, Inore particularly described as follows:
PARCEL ONE:
LOT 27, BLOCK. 2, AS SHOWN ON THE MAP OF "CABOT CABOT AND FORBES
INDUSTRIAL PARK UNIT NO. 1-B", FILED MAY 25, 1966, IN BOOK 64 OF MAPS,
PAGES 49-51, SAN MATEO COUNTY RECORDS.
EXCEPTING THEREFROM, THE UNDERGROUND WATER RIGHTS, WITHOUT RIGHT
OF SURFACE ENTRY, CONVEYED TO THE CALIFORNIA WATER SERVICE
COMPANY IN THE QUITCLAIM DEED AND AUTHORIZATION RECORDED
MARCH 23, 1965, IN BOOK 4917, PAGE 314, OFFICIAL RECORDS.
PARCEL TWO:
AN EASEMENT FOR PUBLIC UTILITIES PURPOSES, APPURTENANT TO PARCEL
ONE, IN, ON, UNDER, OVER AND ALONG A STRIP OF LAND, 15 FEET IN WIDTH,
LYING ADJACENT TO AND SOUTHEASTERLY AND EASTERLY FROM THE
FOLLOWING DESCRIBED NORTHWESTERLY AND WESTERLY LINE THEREOF.
BEGINNING AT THE MOST SOUTHERLY CORNER OF THE ABOVE DESCRIBED REAL
PROPERTY; THENCE FROM SAID POINT OF BEGINNING, ALONG THE
SOUTHEASTERLY LINE OF SAID PARCEL, NORTH 330 24' 33" EAST, 540.00 FEET TO
THE MOST EASTERLY CORNER OF SAID PARCEL; THENCE CONTINUING ALONG
LAST SAID LINE, NORTH 12040' 08" WEST, 131.46 FEET TO A POINT ON THE
GENERAL SOUTHERLY LINE OF SAID CABOT ROAD, SAID EASEMENT BEING
CONTIGUOUS AT ITS NORTHERLY EXTREMITY WITH LAST SAID LINE AND AT ITS
SOUTHERLY EXTREMITY WITH THE SOUTHERLY LINE OF LOT 3, BLOCK 2, AS
SAID LOT AND BLOCK ARE SHOWN ON THAT CERTAIN MAP ENTITLED, "CABOT
CABOT & FORBES INDUSTRIAL PARK, UNIT NO.1, SOUTH SAN FRANCISCO, SAN
MATEO COUNTY, CALIFORNIA", FILED FOR RECORD IN VOLUME 61 OF MAPS, AT
PAGES 45 THROUGH 49, SAN MATEO COUNTY RECORDS.
ASSESSOR'S PARCEL NOS. 015-050-440, 015-050-450
EXHIBIT B
USE PERMIT PLAN SET
EXHIBIT C
FORM IRREVOCABLE LETTER OF CREDIT
[MUST BE SUBMITTED ON BANK'S LETTERHEAD]
IRREVOCABLE STANDBY LETTER OF CREDIT #
City of South San Francisco
Attention: Barry M. Nagel, City Manager
City Manager's Office
400 Grand Avenue
South San Francisco, CA 94080
DATE:
, 2006
EXPIRATION:
Perpetual (see conditions for termination described below)
By order of our clients, ARE-San Francisco No. 12, LLC("ARE"), we hereby issue in your favor
this Irrevocable Standby Letter of Credit for any SUln or sums not exceeding
($ ) which is available against your draft(s) at sight
on [Insert nmne and address of banking institution issuing letter], when accompanied by a
stateInent signed by a purportedly authorized representative of the Office of the City Manager,
City of South San Francisco, CA certifying the following:
1. ARE is in default of anyone of the provisions established by that certain "Developlnent
Agreelnent For 249 East Grand Avenue Office/Research And Development Project"
("Development Agreement") entered into between the City of South San Francisco and
ARE (collectively, "the Parties") and dated the _ day of , 2006, and has
failed satisfactorily to perfonn the terms, covenants and conditions contained therein.
2. Proceeds of any draft drawn on this Letter of Credit will be used solely for the purposes
and interest described the Development AgreeInent entered into between Parties.
All drafts must be presented at the counters of the [insert bank name and address], and Inust
include the statement "Drawn on the, Letter of Credit NUInber ." Partial and multiple
drawings are permitted.
Office of the City Manager, City of South San Francisco
Letter of Credit #
Page 2
This Letter of Credit shall reInain in full force and effect in perpetuity without expiration until
the cOInpletion, including review and approval by the City, of all requirements listed in that
certain "Developlnent Agreelnent For 249 East Grand Avenue Office/Research And
Developlnent Project" incorporated herein by reference.
We hereby undertake that all drafts drawn hereunder will be duly honored by us if drawn and
presented in accordance with the terms and conditions stated in this Letter of Credit. This Letter
of Credit is subject to the Uniform Custolns and Practice for Doculnentary Credits (1993
Revision, International Chamber of Commerce, Publication Number 500.)
In addition, the undersigned hereby stipulates and agrees that no change, extension of time,
alteration or additions to the terms of the Development Agreement or to the work to be
perfonned thereunder or the specifications accompanying the same shall in any way affect its
obligations on this Letter of Credit, and it does hereby waive notice of any such change,
extension of titne, alteration or addition to the terms of the Developlnent Agreement, the work or
to the specifications.
If suit is brought to enforce this Letter of Credit, the prevailing party shall be entitled to receive
in addition to the face mnount of this Letter of Credit, its costs and expenses and fees, including
attorney fees, all to be taxed as costs and included in any judgtnent rendered. The Letter of
Credit inures to and binds the successor and assigns of the parties.
Sincerely,
Executed by [insert bank intuition] this day of
, 2006
Bank N mne
Signature of Authorized Agent
Printed Name of Authorized Agent