HomeMy WebLinkAboutOrd 1227-1998 ORDINANCE NO. 1227-98
AN ORDINANCE OF THE CITY OF SOUTH SAN FRANCISCO
APPROVING THE DEVELOPMENT AGREEMENT FOR SOUTH PARK
THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1: RECITALS
A. The proposed South Park project is within the City of South San Francisco and is
subject to the City's General Plan. The project is to be located in an area designated on the General
Plan Land Use Element Map as Medium Density Residential.
B. The City of South San Francisco and Summerfield Homes have negotiated a
Development Agreement relating to the South Park residential development ("Development
Agreement").
C. This Development Agreement between the City of South San Francisco and
Summerfield has been presented to the City Council, a copy of which is attached hereto as Attachment
1. Development Agreements are authorized by Chapter 19.60 of the South San Francisco Municipal
Code.
D. A public hearing on the proposed Development Agreement was held before the
Planning Commission on August 4, 1998, for which public notice was given as provided by law.
E. The Planning Commission has made its recommendation to the City Council for
approval of the Development Agreement, which recommendation includes the Planning Commission's
determinations with respect to the matters set forth in Section 19.60.100 of the South San Francisco
Municipal Code.
F. A public hearing on the proposed Development Agreement was held before the City
Council on August 11, 1998 for which public notice was given as provided by law.
G. At that public hearing on August 11, 1998, the City Council waived reading and
introduced the Ordinance approving the South Park Development Agreement.
H. The City Council has considered the recommendation of the Planning Commission,
including the Planning Commission's reasons for its recommendation, the staff report, all comments
received in writing and all testimony received at the public hearing.
I. A Mitigated Negative Declaration has been prepared for the project in accordance with
the California Environmental Quality Act. The Mitigated Negative Declaration No. 98-004 identifies
several potential adverse impacts attributable to the project. The impacts can be reduced to a less than
significant level through implementation of mitigation measures. A program will be established to
implement these mitigation measures.
SECTION 2: FINDINGS AND DETERMINATIONS
Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City
of South San Francisco's General Plan, (c) the Mitigated Negative Declaration, (d) the Staff Report,
and on the basis of the specific conclusions set forth below, the City Council finds and determines that:
1. The Development Agreement is consistent with the objectives, policies, general land
uses and programs specified and contained in the City's General Plan in that (a) the General Plan
designation for the site is Medium Density Residential and the proposed project is a single family
dwelling project consistent with those land use designations, (b) the project is consistent with the fiscal
policies of the General Plan with respect to provision of infrastructure and public services, and (c) the
Development Agreement includes provisions relating to financing and construction of public facilities
and the payment of in-lieu fees for parks and affordable housing.
2. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the zoning district in which the real property is located in that the project
approvals include a General Plan Amendment and zoning reclassification adopted specifically for the
South Park project.
3. The Development Agreement will not be detrimental to the health, safety, and general
welfare in that the project will proceed in compliance with all the policies and programs of the General
Plan and in compliance with all applicable zoning, subdivision, and building regulations of the City of
South San Francisco.
4. The Development Agreement is in conformity with public convenience, general welfare
and good land use policies in that the South Park project will implement land use guidelines set forth in
the General Plan which have planned for residential uses at this location.
5. The Development Agreement will not adversely affect the orderly development of
property or the preservation of property values in that the project will be consistent with the General
Plan.
SECTION 3. APPROVAL.
The City Council hereby approves the Development Agreement (Attachment 1) and authorizes
the Mayor to sign it.
SECTION 4. RECORDATION.
Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk
shall submit the Agreement to the County Recorder for recordation.
SECTION 5: SEVERABILITY
In the event any section or portion of this ordinance shall be determined invalid or
unconstitutional, such section or portion shall be deemed severable and all other sections or portions
hereof shall remain in full force and effect.
SECTION 6: PUBLICATION AND EFFECTIVE DATE
This ordinance shall be published once, with the names of those City Councilmembers voting for or
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against it, in the San Mateo Times, a newspaper of general circulation in the City of South San
Francisco, as required by law, and shall become effective thirty (30) days from and after its adoption.
Introduced at a regular meeting of the City Council of the City of South San Francisco, held
the 1 lth day of August, 1998
Adopted as an Ordinance of the City of South Francisco at a regular meeting of the City Council held
the 9th day of September, 1998 by the following vote:
AYES:
Councilmembers James L. Datzman. Joseph A. Fernekes.
Karyl Matsumoto and Mayor Eugene R. Mullin
NOES: None
ABSTAIN: Councilmember John R. Penna
ABSENT: None
ATTEST:
As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance
this 9th day of September, 1998.
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City of South San Francisco
When Recorded Mail To:
City Clerk
City of South San Francisco
400 Grand Avenue
So. San Francisco, CA 94080
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF SOUTH SAN FRANCISCO
AND
SUMMERI-III.I. HOMES
FOR THE SOUTH PARK PROJECT
o
o
TABLE OF CONTENTS
Description of Property ......................................... 2
Interest of Developer ............................................ 2
Relationship of City and Developer ................................. 2
Effective Date and Term ......................................... 2
4.1 Effective Date ............................................ 3
4.2 Term ................................................... 3
Use
5.1
5.2
5.3
of the Property ............................................. 3
Right to Develop ......................................... 3
Permitted Uses ' 3
Additional Conditions ..................................... 3
Applicable Rules, Regulations and Official Policies .....................5
6.1 Rules re Permitted Uses .................................... 5
6.2 Rules re Design and Construction ............................ 5
6.3 Uniform Codes Applicable .................................. 6
Subsequently Enacted Rules and Regulations ......................... 6
7. ! New Rules and Regulations ................................. 6
7.2 Approval of Application .................................... 6
7.3 Moratorium Not Applicable ................................. 6
Subsequently Enacted or Revised Fees, Assessments and Taxes ........... 6
8.1
8.2
8.3
8.4
8.5
Fees, Exactions, Dedications ................................ 6
Applicable Fees ........................................... 7
New Taxes .... .......................................... 7
Assessments ............................................. 7
Vote on Future Assessments and Fees ......................... 7
Amendment or Cancellation ...................................... 7
9.1 Modification Because o£ Conflict with State or Federal Laws ........ 7
9.2 Amendment by Mutual Consent ............................. 8
South San Francisco/Summer Hill Development Agreement
for South Park Project
Table of Contents - Page i of iii
August 7, 1998
9.3
Insubstantial Amendments ..................................
Amendment of Proiect Approvals ............................. 8
Cancellation by Mutual Consent ............................. 8
10. Term of Proiect Approvals ....................................... 9
11.
Annual Review ................................................ 9
11.1 Review Date ....................... r ...................... 9
1 1.2 Initiation of Review ....................................... 9
11 .B Staff Reports ............................................ 9
11.4 Costs .................................................. 9
12.
Default ...................................................... 9
12.1 Other Remedies Available .................................. 9
12.2 Notice and Cure .......................................... 9
12.3 No Damages A~ainst CITY ................................ 10
13. Estoppel Certificate ........................................... 10
14.
Mortgagee Protection: Certain Rights of Cure ....................... 10
14.1 Mortgagee Protection ..................................... 10
14.2 Mortgagee Not Obligated .................................. 11
14.3 Notice of Default to Mortgagee and Extension of Right to Cure ....11
15. Severability .................................................. 11
16. Attorneys' Fees and Costs ....................................... 11
17.
Transfers and Assignments
17.1
17.2
17.3
17.4
Right to Assign .......................................... 12
Release Upon Transfer .................................... 12
DEVELOPER's Right to Retain Specified Rights or Obligations .... 12
Permitted Transfer. Purchase or Assignment ................... 13
17.5 Termination of Agreement Upon Sale of Individual Lots to
public ................................................ 13
18. Agreement Runs with the I ~nd .................................. 13
19. Bankruptcy .................................................. 14
South San Francisco/Summer Hill Development Agreement
for South Park Project
Table of Contents - Page ii of iii
August 7, 1998
20. Indemnification .............................................. 14
21.
22.
Insurance
21.1
21.2
21.3
Public Liability and Property Damage Insurance ................ 14
Workers Compensation Insurance ........................... 15
Evidence of Insurance ..................................... 15
Notices ..................................................... 15
23.
24.
Agreement is Entire Understanding ............................... 16
Exhibits .................................................... 16
25.
26.
Counterparts ................................................. 16
Recordation 16
South San Francisco/Summer Hill Development Agreement
for South Park Project
Table of Contents - Page iii of iii
August 7, 1998
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
South San Francisco on this day of August, 1998, by and between the CITY OF
SOUTH SAN FRANCISCO, a Municipal Corporation (hereafter "CITY"), and
SummerHill Homes, a California corporation (hereafter "Developer'), pursuant to the
authority of §§ 65864 et seq. of the California Government Code, and Chapter 19.60
of the South San Francisco Municipal Code.
RECITALS
A. California Government Code {}{} 65864 et seq. and Chapter 19.60 of
the South San Francisco Municipal Code ("Chapter 19.60") authorize the CITY to
enter into an Agreement for the development of real property with any person having
a legal or equitable interest in such property in order to establish certain development
rights in such property; and
B. DEVELOPER desires to develop certain real property consisting of
approximately 18.9 acres of land, located in the CITY of South San Francisco,
County of San Mateo, State of California, which is more particularly described in
Exhibit A attached hereto and incorporated herein by this reference, and which real
property is hereafter called the "Property"; and
C. DEVELOPER proposes the development of the Property with 153
single family detached homes (the "Project"); and
D. DEVELOPER has applied for, and CITY has approved or is
processing, various land use approvals in connection with the development of the
Project, including General Plan Amendment (Resolution ) a zoning
reclassification (Ordinance ), a Planned Unit Development (Resolution __),
and Development Agreement (Ordinance No. ) and a tentative
subdivision map (Resolution ), (collectively, together with any approvals or
permits now or hereafter issued with respect to the Project, the "Project Approvals");
and
E. Development of the Property by DEVELOPER may be subject to
certain future discretionary approvals, which, if granted, shall automatically become
part of the Project Approvals as each such approval becomes effective; and
F. CITY desires the timely, efficient, orderly and proper development
of aaq, -et; and
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August 7, 1998
G. The City Council has found that, among other things, this Development
Agreement is consistent with its General Plan as amended; and
H. CITY and DEVELOPER have reached agreement and desire to express
herein a Development
Agreement that will facilitate development of the Project subject to conditions set forth herein;
and
I. On September 9, 1998, the City Council of the City of South San
Francisco adopted Ordinance No. 1227-98 approving this Development Agreement.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained, CITY and
DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is described in
Exhibit A attached hereto ("Property").
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Property and prior to
issuance of a final map it will own the Property in fee simple.
3. Relationship of City and Developer.
It is understood that this Agreement is a contract that has been negotiated and
voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an
agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form 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
DEVELOPER joint venturers or partners.
4. Effective Date and Term.
South San Fran¢is¢o/SummerHill Development Agreement Page 2 of 18
for South Park Project August 7, 1998
4.1 Effective Date. Pursuant to Chapter 19.60 the effective
date of this Agreement shall be the date that the ordinance approving this Agreement
takes effect.
?
4.2 Term. The term of this Development Agreement shall
commence on the effective date and extend ten (10) years thereafter, unless said term
is otherwise terminated or modified by circumstances set forth in this Agreement.
5. Use of the Property.
5.1 Right to Develop. Developer shall have the vested right to
develop the Project on the Property in accordance with the terms and conditions of
this Agreement, the Project Approvals (as and when issued), and any amendments to
any of them as shall, from time to time, be approved pursuant to this Agreement.
5.2 Permitted Uses. The permitted uses of the Property, the
density and intensity of use, the maximum height, bulk and size of proposed
buildings, provisions for reservation or dedication of land for public purposes and
location and maintenance of on-site and off-site improvements, location of public
utilities (operated by CITY) and other terms and conditions of development
applicable to the Property, shall be those set forth in this Agreement, the Project
Approvals and any amendments to this Agreement or the Project Approvals.
5.3
Additional Conditions.
5.3.1 In-Lieu Senior Housing Fee. In-lieu of the
DEVELOPER providing housing for seniors as part of the Project, as
a PUD enhancement DEVELOPER shall pay into a Senior Housing
Fund to be created by the CITY a fee in the amount of Nine
Hundred Thousand Dollars ($900,000). Interest earned on the fee
deposited into said Senior Housing Fund shall be retained by the
City. Said fee shall be paid prior to recordation of the first final
map for the Project. The fee deposited in the Senior Housing Fund
by DEVELOPER shall be used to provide affordable senior housing
within the City of South San Francisco. CITY may use the fee for
CITY actions related to providing senior housing or to enter into a
joint venture with a non-profit corporation to provide senior
housing. CITY agrees that Kaiser Foundation Hospitals shall be
invited to participate in the dedication ceremony of any senior
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Page 3 of 18
August 7, 1998
housing project developed in whole or in part with said fee.
5.3.2 In-Li~ Park Fee. DEVELOPER shall pay to the
CITY the In-lieu Park Fee pursuant to South San Francisco Code
section 19.24.090 for each residential unit approved for
development, except as modified in Section 5.3.3.
5.3.3 Linear Park. In-lieu park fees paid to the CITY
pursuant to Section 5.3.2 shall be used, in part, to develop a linear
park that shall extend from Orange Avenue to South Spruce Avenue
upon the property formerly designated as South Canal Street
("Linear Park'). CITY shall be responsible for the creation of the
architectural plans and the scope of work for developing the Linear
Park. Using said plans and scope of work, CITY and DEVELOPER
shall each individually bid the Linear Park proiect. Said plans and
scope of work shall be completed and bids received by the City no
later than March 1, 1999. In the event DEVELOPER is able to
develop the Linear Park less expensively than the CITY,
DEVELOPER shall commence construction of the park as soon as
reasonably possible, but not later than April 1, 1999 and shall
complete construction within six (6) months following
commencement of construction. The commencement and
completion dates set forth herein shall be adiusted in the event that
a delay in the construction occurs by (1) failure of the City to secure
the necessary right-of-way, (2) intervention through lawsuit or daim
by adiacent residential property owners or tenants (exduding
Developer) or (3) weather conditions that prevent commencement
or continuation of construction. If DEVELOPER constructs the
park, CITY shall credit to DEVELOPER an amount of future in-lieu
park fees sufficient to reimburse DEVELOPER'S actual costs to
construct the Linear Park which shall not exceed DEVELOPER'S
bid. Developer may also be reimbursed, upon City approval which
City shall not unreasonably withhold, for any actual costs incurred
beyond Developer's bid amount for additional costs caused by (1)
failure of the City to secure the necessary right-of-way or
intervention through lawsuit, (2) claim by ad}acent residential
property owners or tenants (excluding Developer) or (3) Change
Order requested and approved by the City. For purposes of this
section DEVELOPER'S costs shall be calculated solely with
South San Frandsco/SummerHill Development Agreement
for South Park Project
Page 4 of 18
August 7, 1998
reference to the CITY-approved architectural plans and scope of
work used to bid the project. Any remaining in-lieu park fees paid
to the 5ZITY pursuant to Section 5.:3.2 of this Agreement shall be
retained by the CITY. DEVELOPER shall begin receiving the credit
after the CITY has accepted the Park as complete, wherein such
acceptance shall not be unreasonably withheld. If the total credit
amount owing to the DEVELOPER exceeds the amount of park-in-
lieu fees yet to be paid, CITY shall pay DEVELOPER the mount in
excess from park-in-lieu fees previously paid by the DEVELOPER.
5.3.4 Expeditious Review and Processing. CITY
agrees to expedite review of all future plans submitted by
DEVELOPER and to expedite processing of all future approvals
necessary for development of the Property. In order to fulfill its
obligations under this section, CITY may retain the services of an
outside consultant. DEVELOPER shall reimburse the the CITY for
all reasonable costs associated with retaining said outside consultant.
Should DEVELOPER refuse to reimburse CITY for its costs, CITY's
obligations under this section shall be deemed discharged.
6. Applicable Rules. Regulations and Official Policies.
6.1 Rules re Permitted Uses. For the term of this Agreement,
the CITY's ordinances, resolutions, rules, regulations and official policies governing
the permitted uses of the Property, governing density and intensity of use of the
Property and the maximum height, bulk and size of proposed buildings shall be those
in force and effect on the effective date of this Agreement.
6.2 Rules re Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions,
rules, regulations and official policies governing design, improvement and
construction standards and specifications applicable to the Project shall be those in
force and effect at the time of the applicable discretionary Project Approval.
Ordinances, resolutions, rules, regulations and official policies governing design,
improvement and construction standards and specifications applicable to public
improvements to be constructed by DEVELOPER shall be those in force and effect at
the time of the applicable permit approval.
South San Francisco/SummerHill Development Agreement
for South Park Project
Page 5 of 18
August 7, 1998
6.3 Uniform Codes Applicable. Unless expressly provided in
Paragraph 5 of this Agreement, the Project shall be constructed in accordance with
the p(ovisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire
Codes and Title 24 of the California Code of Regulations, relating to Building
Standards, in effect at the time of approval of the appropriate building, grading, or
other construction permits for the Project.
7. Subsequently Enacted Rules and Regulations~
7.1 New Rules and Regulations. During the term of this
Agreement, the CITY may apply new or modified ordinances, resolutions, rules,
regulations and official policies of the CITY to the Property which were not in force
and effect on the effective date of this Agreement and which are not in conflict with
those applicable to the Property as set forth in this Agreement fi: (a) the application
of such new or modified ordinances, resolutions, rules, regulations or official policies
would not prevent, impose a substantial financial burden on, or materially delay
development of the Property as contemplated by this Agreement and the Project
Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies
have general applicability.
7.2 Approval of Application. Nothing in this Agreement shall
prevent the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Project on the basis of such new or modified
ordinances, resolutions, rules, regulations and policies except that such subsequent
actions shall be subject to any conditions, terms, restrictions, and requirements
expressly set forth herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to
the contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that
imposes a building moratorium which affects the Project on all or any part of the
Property, CITY agrees that such ordinance, resolution or other measure shall not
apply to the Project, the Property, this Agreement or the Project Approvals unless the
building moratorium is imposed as part of a declaration of a local emergency or state
of emergency as defined in Government Code § 8558.
8. Subsequendy Enacted or Revised Fees. Assessments and Taxes.
8.1
Fees. Exactions. Dedications.
South San Francisco/SummerHill Development Agreement
for South Park Proiect
CITY and DEVELOPER
Page 6 of 18
August 7, 1998
agree that the fees payable and exactions required in connection with the
development of the Proiect for purposes of mitigating environmental and other
impacts of the Pro}ect and providing infrastructure for the Proiect shall be those set
forth in the Proiect Approvals and in this Agreement. The CITY shall not impose or
require payment of any other fees, dedications of land, or construction of any public
improvement or facilities, shall not increase or accelerate existing fees, dedications of
land or construction of public improvements, in connection with any subsequent
discretionary approval for the Property, except as set forth in the Proiect Approvals.
8.2 Applicable Fees. The fees presently in existence and as
modified by the 1998-99 Master Fee Schedule shall apply to the Project. Except as
provided in the 1998-99 Master Fee Schedule, fees that are increased during the term
of this Agreement shall not apply to the Project.
8.3 New Taxes. Any subsequently enacted city-wide taxes shall
apply to the Project provided that: ( 1 ) the application of such taxes to the Property
is prospective; and (2) the application of such taxes would not prevent development
in accordance with this Agreement. By so agreeing. DEVELOPER does not waive its
rights to challenge the legality of any such taxes.
8.4 Assessments. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services
which benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Property is subject to Artide
XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
ballot as affirmatively voting in favor of such assessment, fee or charge. This
provision shall cease to apply upon termination as contemplated in Section 17.5.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or Federal
Laws. In the event that state or federal laws or regulations enacted after the effective
date of this Agreement prevent or preclude compliance with one or more provisions of
this Agreement or require changes in plans, maps or permits approved by the CITY,
the parties shall meet and confer in good faith in a reasonable attempt to modify this
South San Frandsco/SummerHill Development Agreement
for South Park Project
Page 7 of 18
August 7, 1998
Agreement to comply with such federal or state law or regulation. Any such
amendment or suspension of the Agreement shall be approved by the Council in
accordance with Chapter 19.60.
9.2 Amendment by Mutual Consent. This Agreement may be
amended in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 19.60.
9.3 Insubstantial Amendments. Notwithstanding the
provisions of the preceding paragraph 9.2, any amendments to this Agreement which
do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the
permitted uses of the Property as provided in paragraph 5.2; (c) provisions for
"significant" reservation or dedication of land as provided in Exhibit B; (d) conditions,
terms, restrictions or requirements for subsequent discretionary actions; (e) the
density or intensity of use of the Project; (f) the maximum height or size of proposed
buildings; or (g) monetary contributions by DEVELOPER as provided in this
Agreement, shall not, except to the extent otherwise required by law, require notice or
public hearing before either the Planning Commission or the City Council before the
parties may execute an amendment hereto. CITY's Public Works Director shall
determine whether a reservation or dedication is "significant".
9.4 Amendment of Project Approvals. Any amendment of
Project Approvals relating to: (a) the permitted use of the Property; (b) provision for
reservation or dedication of land; (c) conditions, terms, restrictions or requirements
for subsequent discretionary actions; (d) the density or intensity of use of the Project;
(e) the maximum height or size of proposed buildings; (f) monetary contributions by
the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER
shall require an amendment of this Agreement. Such amendment shall be limited to
those provisions of this Agreement which are implicated by the amendment of the
Project Approval. Any other amendment of the Project Approvals, or any of them,
shall not require amendment of this Agreement unless the amendment of the Project
Approval(s) relates specifically to some provision of this Agreement.
9.5 Cancellation by Mut~_~_a! Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the
mutuul consent of the parties or their successors in interest in accordance with the
provisions of Chapter 19.60. Any fees paid pursuant to Paragraph 5.3 of this
Agreement prior to the date of cancellation shall be retained by CITY.
South San Francisco/SummerHill Development Agreement
for South Park Project
Page 8 of 18
August 7, 1998
10. Term of Proiect Approvals.
Pursuant to California Government Code Section 66452.6(a), the
term of the tentative map described in Recital D above shall automatically be
extended for the term of this Agreement.
11. Annual Review.
11.1 Review Date. The annual review date for this Agreement
shall be September 12, 1999 and each September 12 thereafter.
11.2 Initiation of Review. The CITY's Economic and
Community Development Director shall initiate the annual review, by giving to
DEVELOPER thirty (30) days' written notice that the CITY intends to undertake
such review. DEVELOPER shall provide evidence to the Economic and Community
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the Economic and Community Development
Director to demonstrate good faith compliance with the provisions of the
Development Agreement. The burden of proof by substantial evidence of compliance
is upon the DEVELOPE1L
11.3 Staff Reports. To the extent practical, CITY shall deposit
in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits
concerning contract performance at least five (5) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by CITY in connection
with the annual review shall be paid by DEVELOPER in accordance with the CITY's
schedule of fees in effect at the time of review.
12. Default.
12.1 Other Remedies Available. Upon the occurrence of an
event of default, the parties may pursue all other remedies at law or in equity which
are not otherwise provided for in this Agreement or in CITY's regulations governing
development agreements, expressly including the remedy of specific performance of
this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of
default by tither party, the nondefaulting party shall serve written notice of such
South San Francisco/SummerHill Development Agreement
for South Park Project
Page 9 of 18
August 7, 1998
default upon the defaulting party. If the default is not cured by the defaulting party
within thirty (530) days after service of such notice of default, the nOgdefaulting party
may then commence any legal or equitable action to enforce its righ~s under this
Agreement; provided, however, that if the default cannot be cured within such thirty
(30) day period, the nondefaulting party shall refrain from any such legal or equitable
action so long as the defaulting party begins to cure such default within such thirty
(30) day period and diligently pursues such cure to completion. Failure to give notice
shall not constitute a waiver of any default.
12.3 No Damages Against CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this
Agreement.
13. F~toppel Certificate.
Either party may, at any time, and from time to time, request
written notice from the other party requesting such party to certify in writing that,
(a) this Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing, or if
so amended, identifying the amendments, and (c) to the knowledge of the certifying
party the requesting party is not in default in the performance of its obligations under
this Agreement, or if in default, to describe therein the nature and amount of any
such defaults. A party receiving a request hereunder shall execute and return such
certificate within thirty (30) days following the receipt thereof, or such longer period
as may reasonably be agreed to by the parties. City Manager of CITY shall be
authorized to execute any certificate requested by DEVELOPER. Should the party
receiving the request not execute and return such certificate within the applicable
period, this shall not be deemed to be a default, provided that such party shall be
deemed to have certified that the statements in dames (a) through (c) of this section
are true, and any party may rely on such deemed certification.
14. Mortgagee Protection: Certain Rights of Cure.
14.1 Mortgagee Protection. This Agreement shall be superior
and senior to any lien placed upon the Property, or any portion thereof after the date
of recording this Agreement, inducting the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value,
but all the terms and conditions contained in this Agreement shall be binding uPon
South San Francisco/SummerHill Development Agreement
for South Park Proiect
Page 10 of 18
August 7, 1998
and effective against any person or entity, including any deed of trust beneficiary or
mortgagee ("Mortgagee") who acquires title to the i Property, or any portion thereof,
by foreclosure, trustee's sale, deed in lieu of fored/0sure, or otherwise.
14.2 Mortgagee Not Obligated. Notwithstanding the provisions
of Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or
complete the construction of improvements, or to guarantee such construction of
improvements, or to guarantee such construction or completion, or to pay, perform or
provide any fee, dedication, improvements or other exaction or imposition; provided,
however, that a Mortgagee shall not be entitled to devote the Property to any uses or
to construct any improvements thereon other than those uses or improvements
provided for or authorized by the Project Approvals or by this Agreement.
14.3 Notice of Default to Mortgagee and Extension of Right to
Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of
default given DEVELOPER hereunder and specifying the address for service thereof,
then CITY shall deliver to such Mortgagee, concurrently with service thereon to
DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY
that DEVELOPER has committed an event of default. Each Mortgagee shall have
the right during the same period available to DEVELOPER to cure or remedy, or to
commence to cure or remedy, the event of default claimed set forth in the CITY's
notice. CITY, through its City Manager, may extend the thirty-day cure period
provided in paragraph 12.2 for not more than an additional sixty (60) days upon
request of DEVELOPER or a Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions,
covenant, condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If CITY or DEVELOPER initiates any action at law or in equity to
enforce or interpret the terms and conditions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs in addition to any
other relief to which it may otherwise be entitled. If any person or entity not a party
to thisAg~ement initiates an action at law or in equity to challenge the validity of
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any provision of this Agreement or the Project Approvals, the parties shall cooperate
in defending such action. DEVELOPER shall bear its own costs of defense as a real
party in interest in any such asfion, and shall reimburse CITY for all reasonable court
costs and attorneys' fees expended by CITY in defense of any such action or other
proceeding.
17. Transfers and Assignments.
17.1 Right to Assign. All of DEVELOPER'S rights, interests and
obligations hereunder may be transferred, sold or assigned in conjunction with the
transfer, sale, or assignment of all of the Property subject hereto at any time during
the term of this Agreement, provided that no transfer, sale or assignment of
DEVELOPER'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 DEVELOPER's notice, provided all necessary
documents, certifications and other information are provided to the City Manager.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder
pursuant to subparagraph 17.1 of this Agreement, DEVELOPER shall be released
from the obligations under this Agreement, with respect to the Property transferred,
sold, or assigned, arising subsequent to the date of City Manager approval of such
transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or
assignee approved by the City Manager expressly assumes all of the rights, interests
and obligations of DEVELOPER under this Agreement, DEVELOPER shall be
released with respect to all such rights, interests and assumed 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.
17.3 DEVELOPER's Right to Retain Specified Rights or
Obligations. Notwithstanding subparagraphs 17.1 and 17.2 and paragraph 18,
DEVELOPER may withhold from a sale, transfer or assignment of this Agreement
certain rights, interests and/or obligations which DEVELOPER shall retain, provided
that DEVELOPER specifies such rights, interests and/or obligations in a written
document to be appended to this Agreement and recorded with the San Mateo
County Recorder prior to the sale, transfer or assignment of the Property.
DEVELOPER's purchaser, transferee or assignee shall then have no interest or
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obligations for such rights, interests and obligations and this Agreement shall remain
applicable to DEVELOPER with respect to such retained rights, interests and/or
obligations./
17.4 Permitted Transfer. Purchase or Assignment. The sale or
other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering
DEVELOPER'S interest in the Property shall not require City Manager approval
pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall
be subject to the provisions of paragraph 17.1.
17.5 Termination of Agreement Upon Sale of Individual Lots to
Public. Notwithstanding any provisions of this Agreement to the contrary, the
burdens of this Agreement shall terminate as to any lot which has been finally
subdivided and individually (and not in "bulk") leased (for a period of longer than one
year) or sold to the purchaser or user thereof and thereupon and without the
execution or recordation of any further document or instnmaent such lot shall be
released from and no longer be subject to or burdened by the provisions of this
Agreement; provided, however, that the benefits of this Agreement shall continue to
nm as to any such lot until a building is constructed on such lot, or until the
termination of this Agreement, if earlier, at which time this Agreement shall
terminate as to such lot.
18. Agreement Runs with the Land.
Except as provided in Section 17.5: (1) all of the provisions, rights,
terms, covenants, and obligations contained in this Agreement shall be binding upon
the parties and their respective heirs, successors and assignees, representatives, lessees,
and all other persons acquiring the Property, or any portion thereof, or any interest
therein, whether by operation of law or in any manner whatsoever, and (2) all of the
provisions of this Agreement shall be enforceable as equitable servitude and shall
constitute covenants running with the land pursuant to applicable laws, including,
but not limited to, Section 1468 of the Civil Code of the State of California, and
each covenant to do, or refrain from doing, some act on the Property hereunder, or
with respect to any owned property, (a) is for the benefit of such properties and is a
burden upon such properties, (b) runs with such properties, and (c) is binding upon
each party and each successive owner during its ownership of such properties or any
portion thereof, and shall be a benefit to and a burden upon each party and its
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property hereunder and each other person succeeding to an interest in such
properties.
19. Bankruptcy.
bankruptcy.
20.
The obligations of this Agreement shall not be dischargeable in
Indemnification.
DEVELOPER agrees to indemnify, defend and hold harmless CITY,
and its elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including reasonable
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
DEVELOPER, or any actions or inactions of DEVELOPER's contractors,
subcontractors, agents, or employees in connection with the construction,
improvement, operation, or maintenance of the Project, provided that DEVELOPER
shall have no indemnification obligation with respect to negligence or wrongful
conduct of CITY, its contractors, subcontractors, agents or employees or with respect
to the maintenance, use or condition of any improvement 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).
21. Insurance.
21.1 Public Liability and Property Damage Insurance. During
the term of this Agreement, DEVELOPER shall maintain in effect a policy of
comprehensive general liability insurance with a per-occurrence combined single limit
of not less than one million dollars ($1,000,000.00) and a deductible of not more
than fifty thousand dollars ($50,000.00) per claim. The policy so maintained by
DEVELOPER shall name the CITY as an additional insured and shall include either a
severability of interest dause or cross-liability endorsement.
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21.2 Workers Compensation Insurance. During the term of this
Agreement DEVELOPER shall maintain Worker's Compensation insurance for all
persons employed by DEVELOPER for work at the Proiect site. DEVELOPER shall
require each contractor and subcontractor similarly to provide Worker's
Compensation insurance for its respective employees. DEVELOPER agrees to
indemnify the CITY for any damage resulting from DEVELOPER's failure to
maintain any such insurance. ~
21.3 Evidence of Insurance. Prior to City Council approval of
this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the
insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required
to give the CITY at least fifteen days prior written notice of the cancellation or
reduction in coverage of a policy. The insurance shall extend to the CITY, its elective
and appointive boards, commissions, officers, agents, employees and representatives
and to DEVELOPER performing work on the Project.
22. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City of South San Francisco
P.O. Box 711
South San Francisco, GA 94083
Notices required to be given to DEVELOPER shall be addressed as follows:
SummerHill Homes
777 California Avenue
Palo Alto, CA 94304
Atto: David T. Egan
A party may change address by giving notice in writing to the other party and
thereafter all notices shall be addressed and transmitted to the new address. Notices
shall be deemed given and received upon actual receipt or refusal of delivery.
Notices may also be given by facsimile transmission which shall be deemed given
upon verification of receipt.
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23.
of the parties.
24.
Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement
Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
25. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of
which is deemed to be an original.
26. Recordation.
CITY shall record a copy of this Agreement within ten days
following execution by all parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date and year first above written. ~
/
CITY OF SOUTH SAN FRANCISCO:
By:
Mayor
Date:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attomey
SUMMERHILL HOMES:
Date:
APPROVED AS TO FORM:
Attorney for StunmerHill Homes
(NOTARIZATION ATTACHED)
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State of California )
County of Alameda )
On before me, a Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(les), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
NOTARY PUBLIC
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