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HomeMy WebLinkAbout12.19.22@400 SP CCMonday, December 19, 2022 4:00 PM City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA TELECONFERENCE Special City Council Special Meeting Agenda VIRTUAL MEETING 1 December 19, 2022Special City Council Special Meeting Agenda VIRTUAL MEETING NOTICE The purpose of conducting the meeting as described in this notice is to provide the safest environment for staff and the public while allowing for public participation. Councilmembers Coleman, Flores and Addiego, Vice Mayor Nagales and Mayor Nicolas and essential City staff may participate via Teleconference. Pursuant to Ralph M. Brown Act, Government Code Section 54953, all votes shall be by roll call due to council members participating by teleconference. The City Council may meet by teleconference, consistent with the Brown Act as amended by AB 361 (2021). Under the amended rules, the City will not provide a physical location for members of the public to participate in the teleconference meeting. American Disability Act: The City Clerk will provide materials in appropriate alternative formats to comply with the Americans with Disabilities Act. Please send a written request to City Clerk Rosa Govea Acosta at 400 Grand Avenue, South San Francisco, CA 94080, or email at [email protected]. Include your name, address, phone number, a brief description of the requested materials, and preferred alternative format service at least 24-hours before the meeting. Accommodations: Individuals who require special assistance of a disability -related modification or accommodation to participate in the meeting, including Interpretation Services, should contact the Office of the City Clerk by email at [email protected], 24-hours before the meeting. Notification in advance of the meeting will enable the City of South San Francisco to make reasonable arrangements to ensure accessibility to the meeting. Page 2 City of South San Francisco Printed on 12/19/2022 2 December 19, 2022Special City Council Special Meeting Agenda ZOOM LINK BELOW -NO REGISTRATION REQUIRED Join Zoom meeting https://ssf-net.zoom.us/j/83028344816 (Enter your email and name) Join by One Tap Mobile : US: +16694449171,,83028344816# Join by Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 346 248 7799 or +1 669 900 6833 or 833 548 0276 (Toll Free) Webinar ID: 830 2834 4816 How to observe the Meeting (no public comment): https://www.ssf.net/government/city-council/video-streaming-city-and-council-meetings/city-council How to submit written Public Comment before the City Council Meeting: Members of the public are encouraged to submit public comments in writing in advance of the meeting via the eComment tab by 2:00 p.m. on the meeting date. Use the eComment portal by clicking on the following link: https://ci-ssf-ca.granicusideas.com/meetings or by visiting the City Council meeting's agenda page. eComments are also directly sent to the iLegislate application used by City Council and staff. How to provide Public Comment during the City Council Meeting: 1) By Phone: (669) 900-6833. Webinar ID is 830 2834 4816. Click *9 to raise a hand to speak. Click *6 to unmute when called. By One tap mobile: US: +16694449171,,83028344816# 2) Online at: https://ssf-net.zoom.us/j/83028344816 a. Enter an email address and name. The name will be visible online and will be used to notify you that it is your turn to speak. b. When the Clerk calls for the item on which you wish to speak, click on "raise hand." Speakers will be notified shortly before they are called to speak. c. When called, please limit your remarks to the time limit allotted. IN-PERSON: Please complete a Digital Speaker Card located at the entrance to the Council Chamber ’s. Be sure to indicate the Agenda Item # you wish to address or the topic of your public comment. When your name is called, please come to the podium, state your name and address (optional) for the Minutes. COMMENTS ARE LIMITED TO THREE (3) MINUTES PER SPEAKER. Thank you for your cooperation. Page 3 City of South San Francisco Printed on 12/19/2022 3 December 19, 2022Special City Council Special Meeting Agenda CALL TO ORDER ROLL CALL AGENDA REVIEW PUBLIC COMMENTS: Comments are limited to items on the Special Meeting Agenda CONSENT CALENDAR Report regarding a resolution authorizing the City Manager to execute the First Amendment to the Purchase and Sale Agreement with Ensemble Investments, LLC for the disposition of a City-owned property located at 367 Marina Boulevard (APN 015-011-350) for a hotel development. (Ernesto Lucero, Acting Deputy Director, Economic and Community Development Department). 1. Resolution authorizing the City Manager to execute the First Amendment to the Purchase and Sale Agreement with Ensemble Investments, LLC for the disposition of a city-owned property located at 367 Marina Boulevard (APN 015-011-350) for a hotel development. 1a. ADJOURNMENT Page 4 City of South San Francisco Printed on 12/19/2022 4 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:22-1070 Agenda Date:12/19/2022 Version:1 Item #:1. Report regarding a resolution authorizing the City Manager to execute the First Amendment to the Purchase and Sale Agreement with Ensemble Investments,LLC for the disposition of a City-owned property located at 367 Marina Boulevard (APN 015-011-350)for a hotel development.(Ernesto Lucero,Acting Deputy Director, Economic and Community Development Department). Staff recommends that the City Council approve a resolution authorizing the City Manager to execute the First Amendment to the Purchase and Sale Agreement with Ensemble Investments,LLC for the disposition of a City-owned property located at 367 Marina Boulevard (APN 015-011-350)for a hotel development. BACKGROUND The eastern peninsula of Oyster Point was formerly operated as a municipal landfill (“landfill”)from 1956 until it stopped accepting waste in 1970.It was closed in the 1970s and 1980s in accordance with the State of California Water Quality Control Board (“Water Board”)regulatory guidelines that governed at that time.The majority of the Oyster Point development area is located over the former landfill and includes multiple office and research &development buildings.The development of Oyster Point covers 41 acres in four phases,as agreed upon in the Disposition and Development Agreement (“DDA”)that was executed between Oyster Point Ventures and the City/Redevelopment Agency on March 23, 2011. The DDA and subsequently approved Oyster Point Specific Plan (“Specific Plan”)identified a 4.7 acre,City- owned parcel as an opportunity site for the development of a full service hotel development.The Specific Plan provided California Environmental Quality Act (“CEQA”)clearance for up to 350 rooms on the site.The DDA was assigned to Kilroy Realty (“Kilroy”)in 2017.In accordance with the DDA,Phase I included a clay clap repair of the landfill,relocation of refuse,and grading of the site in preparation for development.This work is expected to conclude in 2023. In February 2017,staff began an extensive hotel development solicitation and selection process,with the Housing Standing Committee making a recommendation on December 11,2017 to select Ensemble Investments,LLC (“Ensemble”)for the proposed development.On April 11,2018,the City Council approved Resolution 50-2018 authorizing the City Manager to enter into an Exclusive Negotiating Rights Agreement (“ENRA”) with Ensemble to negotiate the disposition of the property for the hotel development site. Ensemble,a Long Beach,California-based hotel developer has a strong presence in the Bay Area and brings over thirty years of experience building full and select service hotels.Some comparable projects developed by Ensemble include Hotel Nia in Menlo Park,Hyatt Place in Emeryville,Hyatt Place in Pasadena at The Paseo, and the Dream Inn in Santa Cruz.Its most recent and comparable project in the Bay Area was Hotel Nia,which City of South San Francisco Printed on 12/16/2022Page 1 of 3 powered by Legistar™5 File #:22-1070 Agenda Date:12/19/2022 Version:1 Item #:1. and the Dream Inn in Santa Cruz.Its most recent and comparable project in the Bay Area was Hotel Nia,which opened in 2018 as an upper-upscale 11-story,250-room boutique hotel branded under Marriott Autograph Collection, with 24,000 square feet of amenities, meeting space, with food and beverage services. A hotel development at Oyster Point will serve the demand for high quality meeting space by businesses in the City’s biotech cluster.The area currently lacks amenities that an upscale or upper scale hotel would bring to the area,such as restaurants,cafes,day spas,or other complementary uses.New life science construction has surpassed the supply of high quality,upscale hotel brands in the area,making the Oyster Point area a prime location for this use. On October 27,2021 the City Council approved Resolution 188-2021 authorizing the City Manager to execute a Purchase and Sale Agreement (“PSA”)with Ensemble for a sale price of $1,000,000 for a proposed hotel development.On November 17,2022,the Planning Commission approved the design,Use Permit,draft Development Agreement,and Transportation Demand Management Plan for the project,consisting of the new construction of a 12-story,165 foot tall,350 room,261,000 square foot building,with 232 surface parking space and site improvements,as well as the determination that the project is within the scope of the previously adopted Programmatic EIR under CEQA Guidelines. DISCUSSION The current PSA requires the close of escrow to occur on or before December 31,2022.The parties are not prepared to close escrow.Per recent amendments to Government Code Section 54220 et seq.,the City is required to engage in a statutory noticing and negotiation process for properties that have not been conveyed prior to December 31,2022.The proposed First Amendment to the PSA would pause negotiations between the parties during the statutory process and allow for negotiations to resume after completion of the statutory process assuming that no disposition related to that statutory process occurs.The proposed First Amendment to the PSA would extend the term of the Agreement for six months after the completion of the statutory process, with the ability for an additional three-month extension pending City Manager approval if negotiations continue in good faith. FISCAL IMPACT There is no fiscal impact associated with the proposed First Amendment to the PSA. RELATIONSHIP TO STRATEGIC PLAN This item supports the City Council Strategic Goal of improving quality of life for the local economy and residents. CONCLUSION Staff recommends that the City Council approve a resolution authorizing the City Manager to execute the First Amendment to the Purchase and Sale Agreement with Ensemble Investments,LLC for the disposition of a City -owned property located at 367 Marina Boulevard (APN 015-011-350) for a hotel development. City of South San Francisco Printed on 12/16/2022Page 2 of 3 powered by Legistar™6 File #:22-1070 Agenda Date:12/19/2022 Version:1 Item #:1. City of South San Francisco Printed on 12/16/2022Page 3 of 3 powered by Legistar™7 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:22-1071 Agenda Date:12/19/2022 Version:1 Item #:1a. Resolution authorizing the City Manager to execute the First Amendment to the Purchase and Sale Agreement with Ensemble Investments,LLC for the disposition of a city-owned property located at 367 Marina Boulevard (APN 015-011-350) for a hotel development. 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)015-011-350 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 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 was assigned to Kilroy Realty (“Kilroy”) in 2018; and WHEREAS,the DDA requires Kilroy to perform certain site work,grading,and installation of certain infrastructure to prepare for the Property for development,which will be completed,satisfying their obligation, by 2023; and WHEREAS,in 2017,the City solicited a hotel developer for a proposed development on the Property through an RFQ/RFP process; and WHEREAS,on December 11,2017,the City’s Housing Standing Committee recommended that the City Council approve Ensemble Investments,LLC (“Ensemble”)to develop a full-service hotel on the Property and made a recommendation that the City Council authorize the City Manager to enter into an Exclusive Negotiating Rights Agreement (“ENRA”) with Ensemble for the development of the Property; and WHEREAS,on April 11,2018,the City Council authorized the City Manager to execute an ENRA with City of South San Francisco Printed on 12/16/2022Page 1 of 2 powered by Legistar™8 File #:22-1071 Agenda Date:12/19/2022 Version:1 Item #:1a. Ensemble, and maintained exclusivity until a Purchase and Sale Agreement (“PSA”) was executed; and WHEREAS,on October 27,2021 the City Council approved Resolution 188-2021 authorizing the City Manager to execute a PSA with Ensemble for a sale price of $1,000,000 for the proposed hotel development attached hereto as Exhibit B; and WHEREAS,on November 17,2022 the Planning Commission approved the design,Use Permit,draft Development Agreement,and Transportation Demand Management Plan for the project,consisting of the new construction of a 12-story,165 foot tall,350 room,261,000 square foot building,with 232 surface parking space and site improvements,as well as the determination that the project is within the scope of the previously adopted Programmatic EIR under CEQA Guidelines; and WHEREAS,the current PSA requires the close of escrow to occur on or before December 31,2022.Per recent amendments to Government Code Section 54220 et seq.,the City is required to engage in a statutory noticing and negotiation process for properties that have not been conveyed prior to December 31, 2022.; and NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby: 1.Authorizes the City Manager to execute the First Amendment to the Purchase and Sale Agreement with Ensemble Investments,LLC for the disposition of a City-owned property located at 367 Marina Boulevard (APN 015-011-350)for a hotel development,in substantially the same form as attached hereto as Exhibit C,subject to review by the City Attorney and subject to minor revisions and clarifications of the City Attorney that do not otherwise expand the City’s obligations; and 2.Authorizes the City Manager to take any other related actions consistent with the intention of the resolution. ***** City of South San Francisco Printed on 12/16/2022Page 2 of 2 powered by Legistar™9 © Latitude Geographics Group Ltd.0.04THIS MAP IS NOT TO BE USED FOR NAVIGATIONWGS_1984_Web_Mercator_Auxiliary_SphereMiles0.04This map is a user generated static output from an Internet mapping site and is forreference only. Data layers that appear on this map may or may not be accurate,current, or otherwise reliable.0.0201,128San Mateo map1:San Mateo County10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 Page 1 FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 Marina Boulevard /Assessor's Parcel Number: 015-010-970) This First Amendment to the Purchase And Sale Agreement And Joint Escrow Instructions (this "Amendment") is made and effective as of December , 2022 (“Effective Date”) by and between the City of South San Francisco, a municipal corporation (“Seller”) and Ensemble Investments, LLC, a California limited liability company (“Buyer”). Seller and Buyer are sometimes collectively referred to herein as “the Parties.” Any capitalized terms not defined herein shall have the meaning ascribed to them in the Agreement. RECITALS A. Seller and Buyer entered into that certain Purchase And Sale Agreement And Joint Escrow Instructions dated December 10, 2021, (“Agreement”) with respect to that certain real property located at 367 Marina Boulevard, South San Francisco, California (Assessor’s Parcel Number 015-010-970) (“Property”); B. The Agreement provides that escrow for conveyance of the Property will close no later than December 31, 2022; C. The Parties have agreed to extend the deadline for close of escrow as memorialized below. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating all of the above as though set forth in full herein and in consideration of all the recitals, conditions and agreements contained herein, the parties hereby agree as follows, with amendments to the Agreement reflected as additions in double underline and deletions in strikethrough. 1. Section 4.1 Condition of Title/Preliminary Title Report is amended to add the following paragraph: No earlier than sixty (60) days and no later than thirty (30) days prior to the Closing Date, Seller shall cause the Title Company to update the Preliminary Report. For any new title matters caused or consented to by Seller that are not on the Preliminary Title Report dated October 14, 2021 and are not Permitted Exceptions, such new matters shall be deemed Monetary Liens that Seller shall be obligated to be removed or released from title before the Closing. For any new title matters that are not Permitted Exceptions and are not caused or consented to by Seller, such new matters shall be deemed Disapproved 99 Page 2 THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA) Exceptions and Seller shall either (i) cause such Disapproved Exceptions to be removed prior to Closing, or (ii) notify Buyer that Seller will not cause Disapproved Exceptions to be cured or removed. Buyer may either (i) notify Seller in writing that it has elected to waive the Disapproved Exceptions and proceed with the purchase contemplated herein, or (ii) terminate this Agreement, whereupon, the Deposits and all interest accrued shall immediately be released by the Escrow Holder and neither Party shall have any further obligation or liability to the other with respect to the transaction contemplated by this Agreement, except for those that expressly survive termination. Notwithstanding the foregoing, in the event that the Agreement is terminated pursuant to this Section 4.1, the Parties reserve the right to pursue damages and/or claims against the other Party for conduct that occurred prior to the execution of this Amendment. Seller shall also deliver updated estoppel certificates related to exceptions 18 and 19 on the current Preliminary Report dated no earlier than thirty (30) days prior to Closing. 2. Section 4.5(a) “Development Agreement, Preliminary Pro Forma and Project Entitlements” is amended as follows: Buyer and Seller agree to negotiate diligently and in good faith the terms of the Development Agreement on such terms set forth in the Development Agreement term sheet attached hereto as Exhibit C and such other terms as shall be acceptable to each party in its sole discretion. Buyer and Seller will also work diligently and in good faith to process all discretionary entitlements for the Project concurrently with the negotiation of the Development Agreement. Buyer will use good faith efforts to submit an entitlement application and seek City Council approval of the Development Agreement and all discretionary entitlements for the Project prior to the Closing Date (as defined in Section 5.1 below). Notwithstanding anything else to the contrary, if the Buyer fails to submit a precise plan and associated entitlement application by May 1, 2022, then the Seller, in its sole discretion, may elect to terminate this Agreement and may retain all Deposits paid pursuant to this Agreement. In the event that Seller exercises its right to terminate pursuant to this provision, neither party shall have any further rights or obligations hereunder except those which expressly survive the termination hereof. The Parties acknowledge that the second reading of the ordinance approving the Development Agreement may occur after Closing, in which case the Development Agreement shall be executed and recorded post-Closing. However, if the Development Agreement has been fully approved by the City Council prior to the Closing Date, December 31, 2022, then an executed copy of the Development Agreement will be deposited into escrow and recorded by the San Mateo County recorder concurrently with the Close of Escrow. 3. A new Section 4.5(d) is added as follows: 100 Page 3 THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA) The Parties understand and agree that during the period of January 1, 2023 through the Seller’s completion of the statutory process outlined in Government Code section 54220 et seq, the Parties shall cease all negotiations regarding the disposition of the Property. If completion of the statutory process does not result in the sale of the Property to a third-party who provided a notice of interest to Seller under Government Code section 54220 et seq., then the Parties shall resume negotiations regarding the terms of the Development Agreement under Section 4.5(a) of this Agreement. If the statutory process results in a sale to a third-party, then such sale shall not constitute a breach by Seller and this Agreement shall terminate and the Deposits shall be returned to the Buyer. The Parties waive, release, remise, acquit and forever discharge each other from claims, liability, harm, and/or costs and damages stemming from delay pursuant to the extension of time provided for under this Amendment or from a sale of the Property to a third-party pursuant to the statutory process outlined in Government Code section 54220 et seq. Notwithstanding the foregoing and regardless of whether this Agreement has been terminated pursuant to this Section 4.5(d), the Parties reserve the right to pursue damages and/or claims against the other Party for conduct unrelated to the statutory process outlined in Government Code section 54220 et seq. that occurred prior to the execution of this Amendment; provided, however, that in the event of a sale of the Property to a third-party pursuant to Government Code section 54220 et seq., if Seller reimburses Buyer for all of Buyer’s out- of-pocket costs actually incurred in connection with Buyer’s pursuit of the Project after the Effective Date of the Agreement (i.e., December 10, 2021), including but not limited to Buyer’s due diligence evaluation, and Buyer’s pursuit of Project entitlements, as substantiated by Buyer with reasonable documentation, then Buyer shall waive, release, remise, acquit and forever discharge Seller from any and all claims, liability, harm, and/or costs and damages arising under the Agreement, whether such claims accrued before or after execution of this Amendment. This Section 4.5(d) shall survive the termination of this Agreement. 4. Section 5.1 is Amended as follows: Closing. The escrow for conveyance of the Property shall close ("Close of Escrow" or "Closing") within thirty (30) days after the satisfaction, or waiver by the appropriate Party, of all of the Buyer's Closing Conditions (as defined in Section 5.2 below) and all of the Seller's Closing Conditions (as defined in Section 5.3 below), which shall occur no later than six (6) months after the Seller concludes the statutory process outlined in Government Code section 54220 et seq. (where such statutory process does not result in a sale of the Property to a third-party) December 31, 2022, or such earlier date that Buyer may specify to Seller with thirty (30) days prior written notice (the "Closing 101 Page 4 THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA) Date"). Upon Buyer’s written request, Seller may grant an extension of the Closing Date by an additional three (3) months. 5. Section 5.3(k) is Amended as follows: Seller has approved all discretionary entitlements for the Project, including the first reading of an ordinance approving a Development Agreement. Buyer will deliver or complete items ( c ), ( d), ( e ), (t) and (g) at least seven (7) business days prior to Closing. If any of the Seller's Closing Conditions shall not have been satisfied on or before the Closing Date as a result of a breach or default by Buyer, then Seller shall have its rights under Section 7.2. Notwithstanding the foregoing or anything contained herein to the contrary, if Buyer has failed to satisfy the condition contained in Section 5.3( e) above by the date specified by BCDC or if Seller's Closing Conditions have not otherwise been satisfied on or before December 31, 2022 the Closing Date, the Seller may, in its sole discretion, immediately terminate this Agreement. For the avoidance of doubt, the Parties acknowledge that the second reading of the ordinance approving the Development Agreement may occur after Closing, in which case the Development Agreement shall be executed and recorded post-Closing. However, if the Development Agreement has been fully approved by the City Council prior to the Closing Date December 31, 2022, then an executed copy of the Development Agreement will be deposited into escrow and recorded concurrently with the Close of Escrow. 6. Section 7.1 is Amended as follows: In the event of a breach or default under this Agreement by Seller, which is not cured within ten (10) days (such longer period as may be reasonably required to cure such default) after written notice, if such breach or default occurs prior to Close of Escrow, Buyer reserves the right to either (a) seek specific performance from Seller or (b) to do any of the following: (i) to waive the breach or default and proceed to close as provided herein; (ii) to extend the time for performance until Seller is able to perform with the understanding that such extension cannot extend beyond the Closing Date December 31, 2022; or (iii) to terminate this Agreement upon written notice to Seller, whereupon Seller shall cause Escrow Holder to return to Buyer any and all sums placed into the Escrow by Buyer (including the Deposits), reserving all other rights and remedies available to it under this Agreement or otherwise at law or in equity, including the right to collect costs and damages for such breach from Seller. 7. Master Development Schedule contained in Exhibit C is Amended as shown in Attachment 1 Exhibit C-Revised attached hereto and incorporated herein. 102 Page 5 THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA) 8. General Provisions. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Amendment and the meaning of the provisions hereof. The provisions of this Amendment shall be construed as to the fair meaning and not for or against any party based upon any attribution of such party as the sole source of the language in question. Except as expressly amended pursuant to this Amendment, the terms and provisions of the Agreement shall remain unmodified and shall continue in full force and effect, and Buyer and Seller hereby ratify and affirm all their respective rights and obligations under the Agreement. In the event of any conflict between this Amendment and the Agreement, this Amendment shall govern. The terms and provisions of this Amendment, together with the Agreement, shall constitute all of the terms and provisions to which Buyer and Seller have agreed with respect to the transaction governed hereby, and there are no other terms and provisions, oral or written, that apply to the Agreement and/or the Property other than as set forth in the Agreement as modified by this Amendment. The provisions of this Amendment shall apply to, be binding upon, and inure to the benefit of the parties hereto and to their respective successors and assigns. 9. Counterparts. This Amendment may be executed in multiple counterparts, all of which shall constitute an original, and all of which together shall constitute a single instrument. Counterparts of this Amendment executed and delivered by facsimile, email or other means of electronic delivery shall constitute originals for all purposes. SIGNATURES ON FOLLOWING PAGE 103 Page 6 THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA) IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date. SELLER: CITY OF SOUTH SAN FRANCISCO By: Mike Futrell City Manager ATTEST: By: Rosa Govea Acosta City Clerk APPROVED AS TO FORM: By: Sky Woodruff City Attorney 104 Page 7 THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA) BUYER: Ensemble Investments, LLC, a California corporation By: Name: Title: 5252479.1 105 Page 8 THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA) Attachment 1 EXHIBIT C-REVISED Master Development Schedule—Updated December ________, 2022 Activity Milestones Submit application for Precise Plan No later than May 1, 2022 Receive Development Agreement Approval (first reading) No later than 2 weeks prior to Closing Date December 16, 2022 Receive Entitlement Approval No later than 2 weeks prior to Closing Date December 16, 2022 Closing of Escrow No later than six (6) months after the Seller concludes the statutory process outlined in Government Code section 54220 et seq or nine (9) months after such process if Seller elects to extend pursuant to Section 5.1 December 31, 2022 Submit application for Building Permit No later than 12 months after Closing Date December 31, 2023. Delivery of Proof of an Approved Construction Loan from a Reputable Lender Within 18 months of submitting for Building Permit, but no later than June 30, 2025. Delivery of a Final Construction Contract Within 18 months of submitting for Building Permit, but no later than June 30, 2025. Construction Commences Within 19 months of submitting for building permit, but no later than July 31, 2025. Substantial Completion of Construction Within 36 months of construction commencement; targeted for September 2027 (26-month schedule), but no later than June 2028 (35-month schedule). Estimated Opening of hotel Targeted for 2 months after Substantial Completion of Construction November 2027, but no later than August 2028. *Note that all target dates are subject to automatic extension for delays due to factors beyond Developer’s reasonable control in accordance with the force majeure provisions of the Development Agreement. 106