HomeMy WebLinkAboutOrd 1284-2001ORDINANCE NO. 1284-2001
CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO
AN ORDINANCE ADOPTING AN AMENDMENT TO THE
RESTATED AND AMENDED DEVELOPMENT AGREEMENT FOR
REMAINING PARCELS OF PHASE II AND PHASE III OF THE
TERRABAY DEVELOPMENT
RECITALS
WHEREAS, the existing Terrabay Specific Plan, Chapter 20.63 of the South San Francisco
Municipal Code and the Terrabay Development Agreement allow development of the Terrabay
project (together the "existing entitlements"), subject to certain further approvals and entitlements;
and,
WHEREAS, Myers Development Company, L.L.C. assumed interest in the Woods,
Commons, Point and Commercial lands in December 1999; and,
WHEREAS, the Supplemental Environmental Impact Report prepared in 1998 to 1999,
which together with the Environmental Impact Report prepared in 1982 and the Supplemental
Environmental Impact Report prepared in 1996, and Addendum to the 1998-1999 Supplemental
Environmental Impact Report analyze the anticipated environmental impacts of the project as
proposed in the Final Terrabay Specific Plan; and,
WHEREAS, on December 13, 2000, the City Council approved the Final Terrabay Specific
Plan and an ordinance adopting the Restated and Amended Development Agreement for the
Remaining Parcels of Phase II and Phase III of the Terrabay Development; and,
WHEREAS, the above referenced ordinance became effective on January 12, 2001; and,
WHEREAS, pursuant to Municipal Code section 19.60.150, the City and Owner desire to
amend the existing Restated and Amended Development Agreement; and,
WHEREAS, the First Amendment to the Restated and Amended Development Agreement
allows flexibility in the design and configuration of the proposed 70 single-family units; and,
WHEREAS, the First Amendment to the Restated and Amended Development Agreement
for the Remaining Parcels of Phase II and Phase III incorporates changes made to the Final
Terrabay Specific Plan which allow for the Owner to proceed with rough grading prior to Final
Subdivision Map approval; and,
WHEREAS, pursuant to Municipal Code sections 19.60.050 and 19.60.060, the Director of
Economic and Community Development found the proposed First Amendment to the Restated and
Amended Development Agreement for the Remaining Parcels of Phase II and Phase III to be in the
proper form, determined that the application was complete, and referred the application and
Agreement to the Planning Commission for a public hearing; and
WHEREAS, on January 4, 2001, the Planning Commission held a properly noticed public
heating on the proposed First Amendment to the Restated and Amended Development Agreement,
made the findings required by Municipal Code section 19.060.100 and recommended that the City
Council adopt said Agreement; and,
WHEREAS, on January 8, 2001, pursuant to Municipal Code section 19.060.110 the City
Council conducted a property noticed public hearing on the proposed First Amendment to the
Restated and Amended Development Agreement for the Remaining Parcels of Phase II and Phase
In of the Terrabay Development. ,
NOW THEREFORE, the City Council of the City of South San Francisco does ordain as
follows:
Section 1. Findings
A. The proposed First Amendment to the Restated and Amended Development
Agreement for the Remaining Parcels of Phase II and Phase IH of the Terrabay Development is
consistent with the objectives, policies, general land uses and programs specified in the General
Plan and the Final Terrabay Specific Plan, as amended. This finding is based upon all evidence in
the record as a whole and the City Council's independent review of these documents.
B. The proposed First Amendment to the Restated and Amended Development
Agreement for the Remaining Parcels of Phase II and Phase III complies with all applicable zoning,
subdivision, and building regulations and with the general and relevant specific plan. This finding
is based upon all evidence in the record and the City Council's independent review of these
documents.
C. The proposed Amendment does not effect the term of the existing Restated and
Amended Development Agreement for the Remaining Parcels of Phase II and Phase III. This
finding is based upon all evidence in the record and the City Council's independent review of the
proposed First Amendment to the Restated and Amended Development Agreement for the
Remaining Parcels of Phase II and Phase III.
D. The proposed First Amendment to the Restated and Amended Development
Agreement for the Remaining Parcels of Phase II and Phase III does not effect the permitted uses of
the property as delineated in the Restated and Amended Agreement. This finding is based upon all
evidence in the record and the City Council's independent review of the proposed Restated and
Amended Development Agreement for the Remaining Parcels of Phase II and Phase III.
Section 2.
The City Council of the City of South San Francisco hereby approves the First Amendment
to the Restated and Amended Development Agreement for the Remaining Parcels of Phase II and
Phase III of the Terrabay Development, attached hereto as Exhibit 1 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 deemed severable and all other sections or
portions hereof shall remain in full force and effect.
Section 4. Publication and Effective Date.
This Ordinance shall be published once, with the names of those City Councilmembers
voting for or 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
on the 24th day of January, 2001.
Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City
Council held on the 14th day of February, 2001 by the following vote:
AYES: Councilmembers Pedro Gonzalez, Karyl Matsumoto and John R. Penna, Mayor
Pro Tem Eugene R. Mullin and Mayor Joseph A. Femekes
NOES: None.
ABSTAIN: None.
ABSENT: None.
- (//City Clerk
As Mayor of the City of South San Francisco, I do hereby approve the forgoing Ordinance this 14th
day February 2001.
FIRST AMENDMENT TO THE RESTATED AND AMENDED DEVELOPMENT
AGREEMENT FOR REMAINING PARCELS OF PHASE II AND PHASE III OF THE
TERRABAY DEVELOPMENT
This FIRST AMENDMENT TO THE RESTATED AND AMENDED DEVELOPMENT
AGREEMENT is dated January ~, 2001 ("Amended Agreement"), between Myers Peninsula
Company, L.L.C. ("Owner") and the City of South San Francisco, a Municipal corporation ("City")
(together "Parties"), organized and existing under the laws of the State of California.
RECITALS
ho
WHEREAS, California Government 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 development of such property; and,
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WHEREAS, pursuant to Government Code Section 65865, the City has adopted rules and
regulations, embodied in Chapter 19.60 of the South San Francisco Municipal Code,
establishing procedures and requirements for adoption, amendment and execution of
development agreements; and,
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WHEREAS, on December 13, 2000, the City adopted a Restated and Amended Development
Agreement for the Remaining Parcels of Phase II and Phase III of the Terrabay
Development; and,
Do
WHEREAS, City and Owner, to implement the Amended Final Terrabay Specific Plan desire
to amend the Restated Agreement to reflect changes in the Final Terrabay Specific Plan and
to undertake such further consistent and appropriate efforts as are necessary to develop the
property in accordance with the Final Terrabay Specific Plan; and,
E
WHEREAS, Terrabay, a California general partnership ("Terrabay") has caused to be
prepared, and the City has accepted and approved by City Council Resolution No.
on November 21, 2000, a specific plan for the Property, which is entitled "Final Terrabay
Specific Plan for the Remaining Parcels of the Terrabay Development," dated October 19,
2000 ("Final Terrabay Specific Plan"); and,
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WHEREAS, Owner has proposed certain modifications to the development plans for the
Property in the "Final Terrabay Specific Plan for the Terrabay Development" dated October
19, 2000 ("Final Terrabay Specific Plan"), and the City has reviewed and approved said
modifications to the Final Terrabay Specific Plan concurrently with this Amended
Agreement; and,
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WHEREAS, on September 25, 1996, the City Council approved the first "Amendment to
Development Agreement," amending the provisions of the Original Agreement relating to
the construction of the Recreation Center and replacing the obligation to construct a child
care center with the payment of an in-lieu fee; and,
First Amendment to the Restated Agreement
Remaining Parcels of Phase II and Phase III Terrabay
January 19, 2001
Page 1 of 8
Ho
WHEREAS, on January 8, 1997, the City Council approved a "Second Amendment to
Development Agreement" extending the term of the Original Agreement to February 14,
2007; and,
WHEREAS, the City Council adopted an "Amended and Restated Development Agreement"
for Phase II-Woods on December 15, 1999; and,
WHERAS, the City Council adopted an "Amended and Restated Development Agreement
for the Remaining Parcels of Phase II and Phase III of the Terrabay Development" on
December 13, 2000; and,
WHEREAS, together the Original Agreement, the Amendment to the Development
Agreement, the Second Amendment to the Development Agreement, the Amended and
Restated Development Agreement for Phase II Woods and the Restated and Amended
Development Agreement for the Remaining Parcels of Phase II and Phase III of the Terrabay
Development constitute the "Agreement;" and,
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WHEREAS, the Parties desire to enter into this Amendment to the Restated Agreement to
implement the changes made to the Final Terrabay Specific Plan; and,
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WHEREAS, all terms, conditions, requirements, exhibits, and vested rights of the Parties
under the Restated and Amended Agreement with regard to the Property which are not in
conflict with and are not inconsistent with the terms of this Amendment shall remain in full
force and effect; and,
WHEREAS, this Amendment serves to reflect changes made in the permit approval process,
as delineated in the Amended Final Terrabay Specific Plan, a text change to the conditions
for permit approval and a change in the type of residential units to be provided on the
Property. This Amendment does not modify any other terms, conditions or approvals
granted in the Restated and Amended Development Agreement for the Remaining Parcels
or change the intensity of the land use; and,
Oo
WHEREAS, as required in the 1998-99 Supplemental Environmental Impact Report,
development of the Property shall be in accordance With the Mitigation Monitoring and
Reporting Program for the Final Terrabay Specific Plan which was approved by the City
Council on November 21, 2000; and,
WHEREAS, all proceedings necessary for the valid adoption and execution hereof have
taken place in accordance with Govemment Code Sections 65864 through 65869.5 and with
Chapter 19.60 of the South San Francisco Municipal Code; and,
Q°
WHEREAS, the City Council has found that this First Amendment is consistent with the
objectives, policies, general land uses and programs specified in the South San Francisco
General Plan as adopted on April 21, 1969 and as amended from time to time; and,
R. WHEREAS, the City Council has found that this First Amendment to the Restated
Agreement is consistent with the Amended Final Terrabay Specific Plan; and,
First Amendment to the Restated Agreement Page 2 of 8
Remaining Parcels of Phase II and Phase III Terrabay
January 19, 2001
So
WHEREAS, on ,2001, the City Council adopted Ordinance No.
approving and adopting this First Amendment to the Restated and Amended Agreement with
Owner and the Ordinance thereafter took effect on 2001. "
AGREEMENT
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 agreements contained herein, agree to amend the
Restated and Amended Development Agreement for the Remaining Parcels of the Terrabay
Development as follows:
70 Unit Residential Project:
In the Restated and Amended Agreement, Owner proposed development of 70 attached
single-family residential units. The Final Terrabay Specific Plan has been amended to allow
for development of 70 attached or detached residential units. Accordingly, the Restated and
Amended Development Agreement is hereby amended, in all relevant sections, to allow
development of 70 attached units, 70 detached units or a combination thereof.
2. Permit Approval Process
All changes to the text of Exhibit D are identified in italics. The permit approval process has
been amended to include a review process for rough grading and to modify the approval
process for final grading. Additionally, Section (B)(5) now includes subsection (g).
Therefore, in accordance with the Final Terrabay Specific Plan, as amended, Exhibit D,
section A (3) of the Restated and Amended Agreement shall read as follows:
Section A (3): "The Set Aside Letter identified herein shall be provided prior to Owner
receiving a rough grading permit for any phase of the Project or on or before August 1, 2001,
whichever occurs first. If Owner does not request a rough grading permit for any Phase of the
Project prior to August 1, 2001, Owner shall not be required to provide the Set Aside Letter.
However, Owner shall be required to pay interest in an amount equal to the rate of return on the
San Mateo County Transportation Authority's investments to compensate the City for the
interest incurred as a result of drawing down five million dollars ($5,000,000) of its loan from
the San Mateo County Transportation Authority. Owner shall pay interest as required above
until such time as Owner requests a rough grading permit for any phase of the Project. Upon
delivery of the Set Aside Letter, Owner shall be relieved of its obligation to pay any interest as
aforesaid accruing after the delivery date of the Set Aside Letter."
Section B: Procedure for Phasing of Development Approvals: The following permit approval
process shall commence immediately and shall be in effect until December 31, 2004. On January
1, 2005, the permit approval process contained in Exhibit D Section B(1) through B(5)(a-jO of the
original Restated and Amended Development Agreement for the Remaining Parcels of Phase II and
Phase II shall govern the permit review and approval procedure and the procedure listed below is
First Amendment to the Restated Agreement Page 3 of 8
Remaining Parcels of Phase II and Phase III Terrabay
January 19, 2001 ~t.-~
repealed and shall be of no further force or effect.
"1. Phase I: Issuance of Grading Permits.
Rough Gradin£ Permits
Rough grading permits may be issued by the City for any or all phases of development
only after:
(a) A Vesting Tentative Map for the Property has been approved by the City; and,
A gradingplan and technical information related thereto has been submitted to the
City for each phase of development and said plan has been approved by the City
Engineer; and,
(c)
Geotechnical drawings and information related thereto have been submitted to the
City for each phase of development and said plans have been approved by the City
Engineer; and,
(d) A Precise Plan for Phase I has been approved by the City; and,
(e) Owner provides the Set Aside letter identified in Section (A); and,
(f)
Owner provides a performance and completion bond in a form approved by the City
Attorney and in an amount that sufficiently guarantees full performance of the
planned grading.
Final Grading Permits
Final grading permits may be issued by the City for any portion of the Property in Phase I
only after:
(a) A final subdivision map for Phase I has been approved by the City Council and recorded
with the County Clerk.
(b) Owner provides the Set Aside letter identified in Section (A); and,
(c) A Subdivision Improvement Agreement and bonds related to the installation of public
improvements for Phase I have been executed.
2. Phase I: Issuance of Building Permits: Building permits may be issued by the City for any
structures in Phase I, including model homes, only after:
(a) Grading permits for Phase I have been approved by the City Engineer; and,
(b) A Precise Plan for Phase I has been approved by the City Council; and,
(c) A final subdivision map for the Phase I has been approved by City Council and recorded
First Amendment to the Restated Agreement Page 4 of 8
Remaining Parcels of Phase II and Phase III Terrabay
January 19,2001 0~_~/'/b
with the County Clerk; and,
(d)
All applicable provisions of the Habitat Conservation Plan for the Remaining Parcels of
Phase II and Phase III, including the dedication of open space to San Mateo Cot~nty to
the extent dedication is required under the Habitat Conservation Plan, have been
complied with to the satisfaction of the Chief Planner; and,
(e)
Improvement contracts together with bonds satisfactory to the City Engineer for their
completion have been executed for construction of the public improvements identified
in the Final Terrabay Specific Plan and as identified during Precise Plan review; and,
(f) City has received the required Set Aside Letter for items identified in Section (A); and,
(g)
Owner has conveyed to the City the land identified in the Myers Property Agreement
("Property Agreement") free and clear of all sign easements and sign structures. In the
event Owner is unable to perform its obligations under the Property Agreement, Owner
shall undertake all steps necessary in order to convey to the City fee title to the property
identified in Section 1.1 of the Myers Property Agreement, free of the sign easements
and structures that currently encumber the property. Owner agrees that such steps may
include paying the City's costs to acquire the property through condemnation. In the
event condemnation is required, Owner shall pay all costs of acquiring the property and
extinguishing the sign easements associated therewith. Costs of condemnation shall
include, but are not limited to, property and sign acquisition, expert witness fees,
appraisal fees and attorneys fees and costs.
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Phase I: Issuance of Certificates of Occupancy. Certificates of Occupancy may be
issued by the City for any structures on Phase I excluding the non-residential use of
model homes, only after:
(a)
Supporting utility systems, roadway systems, parking and landscaping have been
installed for those buildings for which occupancy permits have been requested, to the
satisfaction of the City Engineer, Chief Planner and Director of Recreation and
Community Services; and,
(b)
Landscaped and irrigated fire breaks have been installed for Phase I to the satisfaction
of the Fire Chief and Director of Recreation and Community Services along the
perimeter of the dwelling units and other buildings for which occupancy permits are
being requested; and,
(c)
Drainage catchment basins and improvements related thereto have been installed for
Phase I to the satisfaction of both the City Engineer and the County of San Mateo
Director of Public Works along the perimeter of the dwelling units and other buildings
for which occupancy permits are being requested; and,
(d) Owner has contracted for the acquisition of a site or sites suitable for construction of
the BMR Units; and,
First Amendment to the Restated Agreement
Remaining Parcels of Phase II and Phase III Terrabay
January 19, 2001
Page 5 of 8
(e)
Construction has begun on the trail head and trail east of the Terrabay Park phase from
Terrabay Drive to the satisfaction of the Director of Recreation and Community
Services upon receiving all necessary City and County approvals, which approvals
shall be diligently pursued by Owner; provided, however, this obligation shall not
prevent Owner from receiving a Certificate of Occupancy in the event the County
refuses to grant approvals required to construct the trail in the location presently
identified.
4. Phase II: Issuance of Grading Permits.
Rough Grading Permits
Rough grading permits may be issued by the City for any or all phases of development
only after:
(a) A Vesting Tentative Map for the Property has been approved by the CitY; and,
(b)
A gradingplan and technical information related thereto has been submitted to
the City for each phase of development and said pIan has been approved by the
City Engineer; and,
(c)
Geotechnical drawings and information related thereto have been submitted to
the City for each phase of development and said plans have been approved by the
City Engineer; and,
(d) A Precise Plan for Phase II has been approved by the City; and,
(e) Owner provides the Set Aside letter identified in Section (A); and,
(f)
Owner provides a performance and completion bond in a form approved by the
City Attorney and in an amount that sufficiently guarantees full performance of
the planned grading.
Final Grading Permits
Final grading permits may be issued by the City for any portion of the Property in Phase
II only after:
(a) A Precise Plan for Phase II has been approved by the City; and,
(b) Owner provides the Set Aside letter identified in Section (A); and,
(c) A Subdivision Improvement Agreement and bonds related to the installation of public
improvements for Phase II have been executed; and,
(d) A final subdivision map for Phase II has been approved by the City Council and recorded
with the County Clerk.
5. Phase II: Issuance of Building Permits: Building permits may be issued by the City for
First Amendment to the Restated Agreement Page 6 of 8
Remaining Parcels of Phase II and Phase III Terrabay
January 19, 2001 O ~ ~
any structures in Phase II, including model homes, only after:
(a) Grading permits for Phase II have been approved by the City Engineer; and,
(b) A Precise Plan for Phase II has been approved by the City Council; and,
(c) A final subdivision map for the Phase II has been approved by City Council and recorded
with the County Clerk; and,
(d)
All applicable provisions of the Habitat Conservation Plan for the Remaining Parcels of
Phase II and Phase III, including the dedication of open space to San Mateo County to
the extent dedication is required under the Habitat Conservation Plan, have been
complied with to the satisfaction of the Chief Planner; and,
(e)
Improvement contracts together with bonds satisfactory to the City Engineer for their
completion have been executed for construction of the public improvements identified
in the Final Terrabay Specific Plan and as identified during Precise Plan review; and,
(f) City has received the required Set Aside Letter for items identified in Section (A); and,
Owner has conveyed to the City the land identified in the Myers Property Agreement
("Property Agreement") free and clear of all sign easements and sign structures. In the
event Owner is unable to perform its obligations under the Property Agreement, Owner
shall undertake all steps necessary in order to convey to the City fee title to the property
identified in Section 1.1 of the Myers Property Agreement, free of the sign easements and
structures that currently encumber the property. Owner agrees that such steps may
include paying the City's costs to acquire the property through condemnation. In the
event condemnation is required, Owner shall pay all costs of acquiring the property and
extinguishing the sign easements associated therewith. Costs of condemnation shall
include, but are not limited to, property and sign acquisition, expert witness fees,
appraisal fees and attorneys fees and costs."
3. All other terms and conditions in the Restated and Amended Agreement, and its related exhibits,
remain in full force and effect to the extent they are not in conflict with the aforementioned revised
language.
First Amendment to the Restated Agreement
Remaining Parcels of Phase II and Phase III Terrabay
January 19, 2001
Page 7 of 8
IN X~ITNESS WHEREOF, this First Amendment to the Restated and Amended
Agreement has been executed by the parties on the day and year first above written.
CITY OF SOUTH SAN FRANCISCO
ATTEST:
City Clerk
By
Michael A. Wilson, City Manager
APPROVED AS TO FORM
Steven T. Mattas, City Attorney
MYERS PENINSULA COMPANY, L.L.C.
BY: MYERS TERRABAY PARTNERS
ATTEST:
By: By:
Jack Myers, President
APPROVED AS TO FORM
Counsel for Myers Terrabay Partners
First Amendment to the Restated Agreement
Remaining Parcels of Phase II and Phase III Terrabay
January 19, 2001
Page 8 of 8
RESTATED AND AMENDED DEVELOPN[ENT AGREEMENT FOR REMAINING
PARCELS OF PHASE II AND PHASE III OF THE TERRABAY DEVELOPMENT
This RESTATED AND AMENDED DEVELOPMENT AGREEMENT is dated December
, 2000 ("Restated Agreement"), between Myers Peninsula Company, L.L.C. ("Owner") and
the City of South San Francisco, a Municipal corporation ("City") (together "Parties"), organized
and existing under the laws of the State of California.
RECITALS
Ao
WHEREAS, California Government 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 development of such property; and, ..
Bo
WHEREAS, pursuant to Government Code Section 65865, the City has adopted roles and
regulations, embodied in Chapter 19.60 of the South San Francisco MuniciPal Code,
establishing procedures and requirements, for adoption and execution of development
agreements; and,
Co
WHEREAS, City and Owner, in furtherance of the implementation of the Final Terrabay
Specific Plan and this Restated Agreement, desire to declare their intentions to focus their
efforts and work together to constructively facilitate and achieve the full and complete
development and construction of the Project and to undertake such further consistent and
appropriate efforts as are necessary to accomplish that goal; and,
WHEREAS, this Restated Agreement concerns the tracts of land owned by the Owner
("Property"), particularly described and as shown in Exhibits "A" and "B," attached hereto
and incorporated herein by reference; and,
Eo'
WHEREAS, the current condition of title to the Property is depicted in the Preliminary Title
Reports issued by Commonwealth Land Title Insurance Company under its Policy Numbers:
C, and,
dated a copy of which is attached as Exhibit .....
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WHEREAS, the Property is the remaining parcels of Phase ff and Phase m' previously
referred to as the "Point, Commons and Commercial Parcels" of a three (3) phase project
being developed by Owner and its successors in interest (together these "Phases I, 1I and IIF'
are the "Terrabay Development"); and,
WHEREAS, Terrabay, a California general partnership ("Terrabay") has caused to be
prepared, and the City has accepted and approved by City Council Resolution No. 159-82
on December 2, 1982, a specific plan for the Property, which is entitled "Specific Plan for
Terrabay Development," dated July, 1982 ("Specific Plan"); and,
Restated and Amended Development Agreement
Remaining Parcels of Phase 1I and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
Ho
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No
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WHEREAS, the City Council adopted Resolution No. 193-96, dated December 18, 1996,
extending the term of the Specific Plan to February 14, 2007; and,
WHEREAS, Owner has proposed certain modifications to the development plans for the
Property in the "Final Terrabay Specific Plan for the Terrabay Development" dated October
19, 2000 ("Final Terrabay Specific Plan"), and the City has reviewed and approved said Final
Terrabay Specific Plan concurrently with this Restated Agreement; and,
WHEREAS, development of the property is subject' to the covenants and conditions
contained in the San Bruno Mountain Habitat Conservation Plan and the Agreement related
thereto approved and adopted by Resolution No. 139-80 of the City Council on November
15, 1982; and,
WHEREAS, on May 18, 1983, the City Council adopted Ordinance No. 921-83 approving
and adopting a "Development Agreement" (''Original Agreement"); and,
WHEREAS, on September 25, 1996, the City Council approved the first "Amendment to
Development Agreement," amending the provisions of the Original Agreement relating to
the construction of the Recreation Center and replacing the obligation to construct a child
care center with the payment of an in-lieu fee; and,
WHEREAS, on January 8, 1997, the City Council approved a "Second Amendment to
Development Agreement" extending the term of the Original Agreement to February 14,
2007; and,
WHEREAS, the City Council approved a "Woods Only Specific Plan Il" on May 12, 1999;
and,
WHEREAS, the City Council adopted an "Amended and Restated Development Agreement"
for Phase Il-Woods on December 15, 1999; and,
WHEREAS, together the Original Agreement, the Amendment to the Development
Agreement, the Second Amendment to the Development Agreement and the Amended and
Restated Development Agreement for Phase Il Woods constitute the "Agreement;" and,
WHEREAS, the Parties desire to enter into this Restated Agreement for the Property; and,
WH2EREAS, on March 22, 1989, the City adopted Resolution No. 43-89 approving a Precise
Plan ("Precise Plan") and a vesting tentative subdivision map for Phase I of the Project; and,
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase Ill Terrabay
November 29. 2000
Rev. 1.4.6.Final
000006
2of 18
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AA.
WHEREAS, this Restated Agreement enumerates those obligations created by the Agreement
that relate to the remaining parcels of Phase II and Phase irt only and that have not been
satisfied by performance and, for additional consideration exchanged, creates, certain
additional rights and obligations; and,
WHEREAS, while many of the rights and obligations in this Restated Agreement are
consistent with those in the Agreement, if there is a conflict between the fights or obligations
under the Agreement and the Restated Agreement with regard to the remaining parcels of
Phase Il and Phase 1212[ only, including without limitation those improvements identified in
Exhibit "D," the Restated Agreement shall control; and,
WHEREAS, all terms, conditions, requirements, exhibits, and vested rights of the Parties
under the Agreement with regard to the Property which are not in conflict with and are not
inconsistent with the terms of this Restated Agreement shall remain in full force and effect;
and,
WHEREAS, the Restated Agreement only relates to the Property and does not relate to other
parcels of Phase Il or Phase I. All provisions of the Agreement relating to Phases I and ff and
the Restated and Amended Development Agreement for the Woods East and West Areas of
Phase II of the Terrabay Development are not amended or affected by this Restated
Agreement and remain in full force and effect; and;
WHEREAS, Owner has requested City to undertake certain public improvements for which
the Owner was obligated to provide under the Agreement and agrees to pay the City an in
lieu fee for the construction of said improvements; and;
WHEREAS, to facilitate construction of said public improvements, and in consideration of
the property conveyed to Owner by City, Owner conveyed a portion of the property to the
City; and;
WHEREAS, on October 11, 2000, the City Council approved an agreement and its related
exhibits ("Myers Property Agreement") attached as Exhibit "E" with Owner whereby Owner
and the City would exchange certain property interests in order to construct public
improvements required under the Agreement and 1998-1999 Supplemental Environmental
Impact Report; and,
WHEREAS, as part of the Myers Property Agreement; Myers, Eller Media and the City have
agreed to relocate the signs currently situated on the property at no cost to the City; and,
WHEREAS, the terms of the agreement ("Sign Relocation Agreement") are set forth in
Exhibit "F" attached hereto and incorporated herein; and,
Restated and Amended Development Agreement
Remaining Parcels of Phase Il and Phase III Terrabay
November 29. 2000
Rev. 1.4.6Final
600007
3of18
BB.
WHEREAS, development of the Property is governed by the terms, conditions and
restrictions contained in the Mutual Release and Settlement Agreement between Terrabay
Partners, L.L.C., Myers Development Company, L.L.C., the City, San Bruno Mountain
Watch and the Center for Biological Diversity, dated March 2000; and,
CC.
WHEREAS, as required in the 1998-99 Supplemental Environmental Impact Report,
development of the Property shall be in accordance with the Mitigation Monitoring and
Reporting Program for the Final Terrabay Specific Plan which shall be submitted to the City
Council prior to Precise Plan review; and,
DD.
WHEREAS, in consideration of the rights conferred herein, Owner has agreed to provide a
100 child child-care facility; a Performing Arts Center and to aggressively market the
residential units proposed in the Project to tenants of the commercial property; and,
WHEREAS, all proceedings necessary for the valid adoption and execution hereof have
taken place in accordance with Government Code Sections 65864 through 65869.5 and with
Chapter 19.60 of the South San Francisco Municipal Code; and,
WHEREAS, the City Council has found that this Restated Agreement is consistent with the.
objectives, policies, general land uses and programs specified in the South San Francisco
General Plan as adopted on April 21, 1969 and as amended from time to time; and,
GG.
WHEREAS, the City Council has found that this Restated Agreement is consistent with the
Final Terrabay Specific Plan; and,
WI-~REAS, on ,2000, the City Council adopted Ordinance No.
approving and adopting this Restated Agreement with Owner and the Ordinance thereafter
took effect on 2000.
AGREEMENT
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 agreements contained herein, agree as follows:
1. Effective Date
The effective date of this Restated Agreement shall be the date first appearing above (the
"Effective Date").
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase Ill Terrabay
November 29.2000
Rev. 1.4.6Final
Duration
This Restated Agreement shall expire on February 14, 2007. In the event that litigation is
filed against the City and/or Owner challenging approval of this Restated Agreement or the
entitlements referenced herein, and said litigation delays implementation of the Final
Terrabay Specific Plan or this Restated Agreement, or if said litigation delays construction
of the Property, the expiration date of this Restated Agreement shall be tolled from the time
the summons 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 amount of time
which the expiration date shall be tolled as a result of such litigation shall not exceed five (5)
years.
Project Criteria
The proposed project consists of a 70 unit attached residential component, including 32
Below Market Rate residential units located off-site, a 96 unit condominium component, and
a 665,000 gross square foot office component, which includes a 100--child child care facility,
a 150 seat Performing Arts Center and such other structures and improvements as provided
in the Final Terrabay Specific Plan (hereinafter "Project").
The criteria which shall govern development of the Project, which criteria shall include,
without limitation, permitted uses, density and intensity of use, maximum height and size of
proposed buildings, dedication of land, and public improvements, facilities and services,
shall be the criteria set forth in the Final Terrabay Specific Plan, and applicable provisions
of the South San Francisco Municipal Code as in effect on the Effective Date, including but
not limited to Chapter 20.63 thereof.
To the extent Owner's obligations to provide any public improvements, facilities or services
arise under one or more separate agreements, to which the City may or may not be a party,
the obligations of the parties under the separate agreements shall be governed exclusively by
the terms of those agreements and shall in no way be affected by termination, cancellation,
or expiration of this Restated Agreement, or by default hereunder or breach hereof.
Owner and City specifically understand that by this Section 3 and Section 16 of this Restated
Agreement, they are surrendering and voiding any rights relating to the Property that had
vested under the Agreement to the extent that such rights conflict with the rights created by
this Restated Agreement.
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rev. 1,4.6.Final
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4. Subdivision Imt)rovements
Except as otherwise specifically provided in this Restated Agreement, Owner, at its ,sole cost
and expense, shall install, construct and complete the physical public subdivision
improvements as approved by the City Engineer included within each final map for the
applicable phase of the Project within the property site plan area as development takes place
following recordation of the map(s) therefore. City departments shall review and approve
the plans in accordance with the provisions of the Final Terrabay Specific Plan.~ In this
regard, Owner shall execute for each final map, a Subdivision Improvement Agreement in
substantially the same form as Exhibit "G," attached hereto and incorporated herein. Owner
shall thereafter comply with all obligations created under any Subdivision Improvement
Agreement.
5. Off-site and On-site Improvements
Owner shall, at its sole cost and expense, provide all off and on-site improvements identified
in the Final Terrabay Specific Plan and in Exhibit "I." Said Improvements will be identified
during Precise Plan review. Owner shall complete the off and on-site improvements in
accordance with the plans approved by the City Engineer.
6. Setting Boundaries
The Parties agree that Owner will, using monuments approved by the City Engineer, at
Owner's own cost and expense, set all of the exterior boundaries of the Terrabay Specific
Plan District contiguous with the city limit boundaries of the City of South San Francisco
prior to the issuance of any building permits for development of the Property within the
district.
7. Fees
(a) In addition to any other fees required to be paid by Owner by ordinance or by this or
other agreements, Owner agrees to pay City's costs (including overhead and administrative
costs) for plan checking and processing of documents and for all field quality control
inspections necessary for the proper administration of development pursuant to this Restated
Agreement, as determined by the City Engineer. Fees paid shall be in amounts as set forth
in subsection (d) of this section.
(b) In addition to any other fees required to be paid by Owner by ordinance or by this
Restated Agreement or other agreements, Owner agrees to pay City' s costs incurred by City
for geotechnical consultant services associated with the development contemplated herein.
In this regard, City shall submit to Owner monthly billings, as necessary, and Owner shall
remit payment in full within thirty (30) days of the date of the billing.
I Final Terrabay Specific Plan, Page I11 - 6, Section
Restated and Amended Development Agreement
Remaining Parcels of Phase 1I and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
6of18
(c) Owner, by this Restated Agreement, agrees to pay costs incurred by City to hire a
Certified Engineer to perform engineering consultant services associated with the
development contemplated herein. In this regard, City shall submit to Owner monthly
billings, as necessary, and Owner shall remit payment in full within thirty (30) days of the
date of billing.
(d) Throughout the term of this Restated Agreement, unless otherwise provided, the fees
and charges identified herein or levied by City for any and all public or private
improvements, construction, building or development to be payable by Owner, shall be the
lesser of the following:
(i) The fees in effect as of the date of application for each map or permit; or
(ii)
The fees in effect as of the effective date of the Restated Agreement and
adjusted annually on July 1~, in an amount equal to the annual percentage
increase reflected by the Construction Cost Index for the San Francisco Bay
Area published by the Engineering News Weekly.
Insurance
Owner shall obtain prior to commencement of any work required or authorized under this
Restated Agreement and maintain thereafter, for the entire term of this Restated Agreement,
the following insurance and receive the approval of the City Attorney as to form, amount and
carder:
(a) Worker's Compensation and Employer's Liabiliw Insurance in the statutory
covera.~e: Owner shall retain Worker's Compensation and Employer's Liability Insurance
coverage during all times for which work is undertaken on the Property to construct the
Project. In signing this Restated Agreement, the Owner makes the following certification,
required by Section 1861 of the California Labor Code:
"I am aware of the provisions of Section 3700 of the California Labor Code
which require every employer to be insured against liability for Workers'
Compensation or to undertake self-insurance in accordance with the
provisions of the Code, and I will comply with such provisions before
commencing the performance of the work of this Restated Agreement."
(b) Commercial General Liability Insurance: An insurance policy in an amount not less
than $10,000,000.00 for injuries including, but not limited to, death to any one person and
subject to the same limit for each person, in an amount not less than $10,000,000.00
combined single limit per occurrence for bodily injury, personal injury and property damage.
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
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(c)
Automobile Liability (Code 1) Insurance: An insurance policy in an amount not less
than Five Hundred Thousand Dollars ($500,000.00) combined single limit per
accident for bodily injury and property damage. ~.
(d) Contractual Liability Insurance: An insurance policy in the amount of not less than
$10,000,000.00, insuring City, its elective and appointive boards, commissions, officers,
agents and employees, and Owner against damages sustained by reason of any action or
actions at law or in equity, and/or any claims or demands by reason of any breach or alleged
breach of any contract, or provisions thereof, or by reason of any contractual liability, or
alleged contractual liability arising out of any contract entered into by Owner and/or any of
its agents or employees in order to perform the work defined herein.
Endorsements on insurance. The insurance required shall contain the following
endorsements:
(a) "The following are named as additional insureds on the above policies: The City of
South San Francisco, its elective and appointive boards, officers, agents, consultants and
employees."
(b) "Notwithstanding any other provision in this policy, the insurance afforded hereunder
to the City of South San Francisco shall be primary as to any other insurance or reinsurance
covering or available to the City of South San Francisco, and such other insurance or
reinsurance shall not be required to contribute to any liability or loss until and unless the
approximate limit of liability afforded hereunder is exhausted."
(c) "This insurance which insures the City, its officers, agents, consultants and
employees against loss or liability which may arise from each occurrence during the
performance of or which may result from any work herein required to be done, also covers
claims for property damage to the City by deposit or washing of material onto City streets
or other public improvements which may arise from or out of the performance of the work,
whether such performance be by the contractor, the subcontractor or any person directly or
indirectly employed by him. This insurance includes protection against liability arising from
completed operations provided a cause of action therefore existed at the time of Project
completion."
10. Evidence of Insurance.
11. Hold Harmless.
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase Ili Terrabay
November 29, 2000
Rev. 1.4.6.Final
Evidence of the insurance described above shall be provided to City prior to commencement
of any work under this Restated Agreement and shall be subject to approval by the City
Attorney as to form, amount and carrier. The policies of insurance shall also contain a
provision indicating that such insurance shall not be reduced or canceled except upon thirty
(30) days written notice to City or in the case of non-payment of premiums, ten (10) days
written notice.
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Owner agrees to defend (with counsel approved by the City following consultation with
Owner) and hold the City, its officers, agents, employees and representatives harmless from
liability for any claim for damages, including damages for personal injury or death, which
may arise from the approval of this Restated Agreement or the land use entitlement granted
herewith or from the direct or indirect operations or activities of Owner or those of its
contractors, subcontractors, agents, employees or other persons acting on its behalf which
relate to, or are in connection with, the Project.
This hold harmless agreement applies to all damages and claims for damages suffered or
alleged to have been suffered by reason of the operations or activities referred to in this
paragraph, regardless of whether or not the City prepared, supplied, or approved plans or
specifications or both for the Project, regardless of whether or not City conducted inspections
for the Project and regardless of whether or not the insurance policies .referred to in
paragraphs 8 through 10 are applicable, but Owner shall have no responsibility to the City
hereunder for actual or alleged damages claimed by the City where such damages result
directly from negligent or intentional acts or omissions of the City or the City's officers,
agents, consultants, employees and representatives.
12. 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 date on which title to the Property vests of record
in Owner, will not be bound by this Restated Agreement, with regard to the Property with
the exception of holders of the interests described as Exceptions of the title reports attached
as Exhibit "C." The Owner shall not be required to cause such other owners listed as
exceptions to the title report to comply with the provisions of this Restated Agreement except
the holders of the sign easements as identified in Exhibit "F."
13. Assignment
Owner may at any time or from 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 Restated Agreement shall be binding upon, and the benefits of this Restated
Agreement 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
Restated A~eement relating to such transferred Property shall be binding upon and inure to
the benefit of the transferee.
Restated and Amended Development Agreement
Remaining Parcels of Phase Il and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
Upon such a transfer, Owner shall notify the City of the name and address of the transferee.
Upon the completion of Owner's responsibilities pursuant to this section, Owner shall have
no further obligations or benefits hereunder with respect to such transferred Property save
for those the performance of which was due prior to the transfer date.
14. Effect of transfer of real property to another jurisdiction
If all or a portion of the real property which is the subject of this Restated Agreement is
annexed to or otherwise becomes a part of another City or any county, this Restated
Agreement shall terminate as to the portion of the real property no longer subject to the
City's jurisdiction.
15. Subsequent discretionary actions of City
During the term of this Restated Agreement, subsequent discretionary actions by the City
permitted under the rules, regulations, official policies and provisions of the Municipal Code
of the City in force as of the date of this Restated Agreement and pertaining to the Property
shall not prevent but shall, subject to the exception contained in Section 20.63.120I of the
South San Francisco Municipal Code, be consistent with the Final Terrabay Specific Plan,
as it may be amended from time to time, consistent with the intent of this Restated
Agreement.
16. Effect of Restated Agreement on Land Use Re~ulati0ns
The rules, regulations, official policies and provisions of the Municipal Code of the City
which are generally to govern the permitted uses of the Property, the development and
constructions standards and specifications applicable to the Project are, and shall remain,
throug.1)out the term of this Restated Agreement, those rules, regulations, official policies and
provisions of the Final Terrabay Specific Plan and applicable provisions of the Municipal
Code including, but not limited to Chapter 20.63 thereof in force as of the effective date of
this Restated Agreement. Notwithstanding the foregoing, the developer shall comply with
all relevant provisions of the Uniform Building Code, with local amendments, in effect at the
time the construction plans are submitted for plan checking.
This Restated Agreement shall not prevent the City in subsequent actions applicable to the
Property, from applying new rules, regulations and policies which do not conflict with those
rules, regulations and policies applicable to the Property as set forth in Government Code
Section 65866, nor shall this Restated Agreement prevent the City from denying or
conditionally approving any subsequent application for development of the Project on the
basis of such existing or new rules, regulations and policies.
17. 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 Restated Agreement,
such provisions of this Restated Agreement shall be modified or suspended as may be
necessary to comply with such State or Federal laws or regulations.
18. Periodic Review
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
10 of 18
During the term of this Restated Agreement, the City shall conduct "annual" and/or "special"
reviews of Owner's good faith compliance with the terms and conditions of this Restated
Agreement in accordance with the procedures set forth in Chapter 19.60 of the South San
Francisco Municipal Code.
(a) The City shall deposit in the mail to Owner a copy of all staff reports and, to the
extent practical, related exhibits, concerning contract performance at least five (5) calendar
days prior to any hearing on such periodic review. Owner shall be permitted an opportunity
to be heard orally or in writing regarding its performance under this Restated Agreement
before the City Council of City or if the matter is referred to the Planning Commission of
City, then before said Commission. If the City determines that Owner is in default following
completion of the normal scheduled periodic review, written notice of proposed termination
or modification of this Restated Agreement shaI1 be given, according to the terms of this
Restated Agreement, specifying in said notice the alleged nature of the default, and suggested
or potential actions and a reasonable period to cure said default.
19.
(b) If Owner is found to be in compliance with this Restated Agreement after the annual
review, City shall, upon request by Owner at any time after an annual review, issue a
Certificate of Compliance to Owner (the "Certificate") stating that, after the most recent
annual review and based upon information known or made known as of the date of such
annual review to the City Council, or the Planning Director of City, (i) this Restated
Agreement remains in effect and either (2) Owner is not in default or (3) Owner is in default
and specifying the nature of the default. Owner may record the Certificate in the official
records of the County of San Mateo, State of California.
Amendment or cancellation of agreement
This Restated Agreement may be further amended or terminated only in the manner set forth
in Government Code Sections 65865.1, 65868, 65869.5 and Chapter 19.60 of the South San
Francisco Municipal Code.
20. Events of default
Owner shall be in default under this Restated Agreement upon the happening of one or more
of the following events:
(a) If a warranty, representation or statement made or furnished by Owner to the City is
false or proves to have been false in any material respect when it was made; or
(b) A finding and determination by the City made 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 terms and conditions of this Restated
Agreement, or of any Subdivision Improvement Agreement executed pursuant to Section 4
thereof.
Restated and Amended Development Agreement l 1 of 18
Remaining Parcels of Phase II and Phase III Terrabay
November 29.2000
Rev. 1.4.6.Final
21. Procedure upon default
(a) Upon the occurrence of an event of default, City may terminate or modify this
Restated Agreement in accordance with the provisions of Government Code Section 65865.1
and of Chapter 19.60 of the South San Francisco Municipal Code.
(b) The City shall not be deemed to have waived any claim of defect in Owner's
performance if, on annual or special review, the City does not propose to terminate this
Restated Agreement.
(c) No waiver or failure by the City or Owner to enforce any provision of this Restated
Agreement shall be deemed to be a waiver of any provision of this Restated Agreement or
of any subsequent breach of the same or any other provision.
(d) All other remedies at law or in equity which are not otherwise provided for in this
Restated Agreement or in City's regulations governing development agreements are available
to the parties if there is a breach.
(e) The City shall give Owner written notice of any default under this Restated
Agreement, 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.
22. Mortgagee Protection
A breach of this Restated Agreement shall not defeat, invalidate, diminish, or impair the lien
of any mortgage or deed of trust affecting the Property or any part thereof, made in good faith
and for value.
(a) Notice of Default to Mort~a.~ee; Right to Cure. With respect to any deed of trust or
mortgage ("deed of trust") to be granted by Owner to a lender (such lender may be referred
to herein as "Owner's Mortgagee") to secure advances made by the lender on a construction
loan to Owner which requires that Owner's Mortgagee be given notice of any default of
Owner hereunder and Owner gives notice, in writing, of this request to City, City agrees that
whenever City shall deliver any notice or demand to Owner with respect to any breach or
default by Owner in commencing, prosecuting or completing construction of the Project as
required by this Restated Agreement or in observing or performing any other term, covenant,
agreement or condition to be observed or performed on the part of Owner under this Restated
Agreement, City, shall at the same time deliver a Copy of such notice or demand ("Default
Notice") to Owner's Mortgagee as holder of and beneficiary under the deed of trust. In
furtherance thereof, City agrees that so long as any principal, interest or other sums remain
outstanding on the indebtedness secured by the deed of trust and until such time as the lien
of the deed of trust has been extinguished the City shall:
(i) Take no action to terminate this Restated Agreement or exercise any other
Restated and Amended Development Agreement 0~ 18'".:"
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
remedy under this Restated Agreement, unless Owner's Mortgagee shall fail, within
thirty (30) days of receipt of the Default Notice, to cure or remedy or commence to
cure or remedy such breach or default; provided, however, that if such breach or
default is of a nature that cannot be remedied by Owner's Mortgagee or is of a nature
that can only be remedied by Owner's Mortgagee after Owner's Mortgagee has
obtained possession of and title to the real property encumbered by the deed of trust
(the "Encumbered Real Property"), by deed-in-lieu of foreclosure or by foreclosure
of other appropriate proceedings, then such breach or default shall be deemed to be
remedied by Owner's Mortgagee if (a) within ninety (90) days after receiving the
Default Notice from City, or prior thereto, Owner's Mortgagee shall have acquired
title to and possession of the Encumbered Real Property, by deed-in-lieu of
foreclosure, or shall have commenced foreclosure or other appropriate proceedings,
and (b) Owner's Mortgagee diligently prosecutes any such foreclosure or other
proceedings to completion.
(ii) If Owner's Mortgagee is prohibited from commencing or prosecuting
foreclosure or other appropriate proceedings by reason of any process or injunction
issued by any court or by reason of any action taken by any court having jurisdiction
of any bankruptcy or insolvency proceeding involving Owner, then the times
specified above for commencing or prosecuting such foreclosure or other proceedings
shall be extended for the period of such prohibition.
(b) Owner's Mortgagee shall have the right, but not the obligation, at any time prior to
termination of this Restated Agreement, to do any act or thing required of Owner under this
Restated Agreement, and to do any act or thing not in violation of this Restated Agreement
which may be necessary and proper to be done in the performance and observance of the
agreements, covenants and conditions of Owner under this Restated Agreement to prevent
termination hereof. All things so done and performed by the Owner's Mortgagee shall be
as effective to prevent a termination of this Restated Agreement as the same would have been
if done and performed by Owner instead of by Owner's Mortgagee, and the costs incurred
by Owner's Mortgagee in doing such acts and things may be added to the indebtedness
secured by the deed of trust. No action or inaction taken by Owner's Mortgagee pursuant to
this Restated Agreement shall relieve Owner of its obligations under this Restated
Agreement.
(c) City shall mail or deliver to Owner's Mortgagee a duplicate copy of any and all
notices in writing pertaining to any default under or breach of any agreement, covenant or
condition of Owner under this Restated Agreement which City may from time to time give
to Owner pursuant to the provisions of this Restated Agreement. Such copy shall be mailed
or delivered to Owner's Mortgagee at the same time in the same manner as such notices are
given by City to Owner. No such notice by City to Owner hereunder shall be deemed to have
been given to Owner unless and until a copy thereof shall have been given to Owner's
Mortgagee as aforesaid.
(d) Subject to the sentence immediately
Resta~ed and Amended Development Agreement
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
following, City shall
not consent to any
23.
24.
amendment or modification of this Restated Agreement unless Owner provides City with
written evidence of the Owner's Mortgagee consent, which consent shall not be unreasonably
withheld, to the amendment or modification of this Restated Agreement sought. Owner's
Mortgagee shall be deemed to have consented to such amendment or modification if it does
not object to City by written notice given to City within thirty (30) days from the date written
notice of such amendment or modification is given by City or Owner to Owner's Mortgagee,
reasonable evidence of the delivery of which notice shall be provided to City if given only
by Owner.
Foreclosure
Foreclosure by Owner's Mortgagee of the deed of trust or any sale to Owner's Mortgagee
thereunder, whether by judicial proceedings or by virtue of any power of sale contained in
the deed of trust, or any conveyance of the Encumbered Real Property from Owner to
Owner's Mortgagee through, or in lieu of, foreclosure or other appropriate proceedings shall
not require the consent of City or constitute a breach of any provision of or a default under
this Restated Agreement; ,and, following such foreclosure, sale or conveyance, City shall
recognize Owner's Mortgagee as "Owner" under this Restated Agreement. In the event
Owner's Mortgagee becomes "Owner" under this Restated Agreement, Owner's Mortgagee
shall be liable for the obligations of Owner only for the period of time that Owner's
Mortgagee remains "Owner."
Termination of Restated Aereement
Should City intend to terminate this Restated Agreement by reason of any breach or default
by Owner as permitted herein, City shall suspend term/nation of the Restated Agreement if
Owner's Mortgagee gives notice, within thirty days, of its intent to execute and enter into an
agreement with the City. Said agreement shall ensure Owner's Mortgagee's assumes the
obligations of Owner under this Restated Agreement as soon as Owner's Mortgagee obtains
possession of and title to the Encumbered Real Property. Owner's Mortgagee must consent
to the same agreements, covenants and conditions (except for any requirements which have
been fulfilled by Owner prior to the date of such agreement) as are contained in this Restated
Agreement and any amendments thereto approved or waived by Owner's Mortgagee. The
agr~ment must also provide that City will not terminate this Restated Agreement if Owner's
Mortgagee assumes the obligations of Owner pursuant to the terms of this Restated
Agreement.
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase III Terrabay
November 29. 2000
Rev. 1.4.6.Final
25.
26.
27.
28.
29.
Attorneys fees and costs
If legal action by either Party is brought because of a breach of this Restated Agreement or
to enforce a provision of this Restated Agreement, the prevailing Party is entitled to
reasonable attorney's fees and court costs.
Validity
If any term or condition of this Restated Agreement is for any reason held by a final
judgment of a court of competent jurisdiction to be invalid, and if the same constitutes a
material change in the consideration for this Restated Agreement, then this entire Restated
Agreement shall likewise be invalid, and shall be deemed null and void and of no further
force or effect following such judicial determination.
No third parties benefited
No person other than the City, Owner, or their respective successors and assigns is intended
to or shall have any right or claim under this Restated Agreement, this Restated Agreement
being for the sole benefit and protection of the parties hereto and their respective successors
and assigns. Similarly, no amendment or waiver of any provision of this Restated Agreement
shall require the consent or acknowledgment of any person not a Party or successor to this
Restated Agreement.
Binding effect of Restated Agreement
The provisions of this Restated Agreement shall bind and inure to the benefit of the Parties
or/ginally named herein and their respective successors and assigns.
Relationship of Parties
The City and Owner intend by this Restated Agreement to establish that Owner is an
independent contractor and not the agent of the City, and do not intend to create a
partnership, joint venture, joint enterprise, or any other joint business relationship. 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 Restated
Agreement.
30. Rules of Construction and miscellaneous terms
(a) The singular includes the plural; the masculine gender includes the feminine; "shall"
and "will" are mandatory, "may" is permissive.
(b) Time is and shall be of the essence in this Restated Agreement. /'9 Ct a -;
(c) Where a Party consists of more than one person, each such person shall be jointly and
Restated and Amended Development Agreement 15 of 18
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
severally liable for the performance of such Party's obligation hereunder.
(d) The captions in this Restated Agreement are for convenience only, are nora part of
this Restated Agreement and do not in any way limit or amplify the provisions thereof.
(e) This Restated Agreement shall be interpreted and enforced in accordance with the
laws of the State of California in effect on the date thereof.
(f) This Restated Agreement, including the Recitals herein, and the Final Terrabay
Specific Plan contain the entire agreement of the parties hereto relating to the matters set
forth in this Restated Agreement and the Final Terrabay Specific Plan and any other prior or
contemporaneous statements or understandings respecting this Restated Agreement are
merged herein.
31. Relation of the Restated A~reement to the Agreement
The Restated Agreement relates only to the remaining parcels of Phase ri and Phase llI and
does not relate to Phase I or the Woods property of Phase ri. All provisions of: (a) the
Agreement which relate to Phase I; Co) the Restated and Amended Development Agreement
for Phase I1 '~l'he Woods" of the Terrabay Development; and (c) the Agreement which relate
to property other than the remaining parcels as identified herein, are not amended or affected
by this Restated Agreement and remain in full force and effect. The Agreement remains in
full force and effect. If there is a conflict between the rights or obligations under the
Agreement and the Restated Agreement with regard to the Property, this Restated Agreement
shall control.
32. Not a Novation
This Restated Agreement is not a novation of the Agreement; it does not substitute for the
Agreement.
33. Exhibits
Exhibit "A" Boundary Maps of Phase 1I and
Exhibit "B" Legal Descriptions of Phase II and
Exhibit "C" Title Reports for Phase ri and 11I
Exhibit "D" Building Improvement Schedule
Exhibit "E" Myers Property Agreement with City
Exhibit "F' Sign Relocation Agreement
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rev. 1.4.6.Final
,-:. i../
16 of 18
34.
Exhibit "G" Subdivision Improvement Agreement form
Exhibit "H" Restated And Amended Development Agreement For Remaining
Parcels Of Phase 11 And Phase III: Owner Obligations
Exhibit "I" Improvement Responsibilities
Exhibit "J" Letter of Intent of YMCA
Notices
All notices required or provided for under this Restated Agreement must be in writing and
delivered in person or sent by certified mail, postage prepaid. Notice required to be given
to the City shall be addressed as follow: · -
City Clerk
P.O. Box 711,400 Grand Avenue
South San Francisco, CA 94083
With a Copy to:
The Office of The City Attorney
400 Grand Avenue, City Hall
South San Francisco, CA 94080
Notices required to be given to Owner shall be addressed as follows:
Myers Peninsula Company, L.L.C.
101 Second Street, Suite 555
San Francisco, CA 994105
Attn.: lack Myers, President
With a Copy to:
Timothy A. Tosta, Esq.
Baker & McKenzie
Two Embarcadero Center, 24th Floor
San Francisco, California 94111-3909
Notices to be given to Owner's Mortgagee(s) under this Restated Agreement shall be
required to be given by City only in the event that Owner hereafter advises City of their
existence and notice addresses in the manner set forth herein from time to time. A party may
change its address for notice by giving notice in writing to the other party and thereafter
notices shall be addressed and transmitted to the new address.
IN WITNESS WHEREOF, this Restated Agreement has been executed by the parties
on the day and year first above written.
Restated and Amended Development Agreement 00~ 1~ ~
Remaining Parcels of Phase II and Phase Ill Terrabay
November 29, 2000
Rev. 1.4.6.Final
CITY OF SOUTH SAN FRANCISCO
ATTEST:
By
Michael A. Wilson, City Manager
City Clerk
APPROVED AS TO FORM
Steven T. Mattas, City Attorney
MYERS PENINSULA COMPANY, L.L.C.
BY: MYERS TERRABAY PARTNERS
ATTEST:
By By:
lack Myers, President
APPROVED AS TO FORM
Counsel for Myers Peninsula Company
J:\WPD~Inrs w\405\035kAGREEkPHASE3\ 1 _Terrabay_DevAgr_kaj_Nov29_final.doc
Restated and Amended Development Agreement
Remaining Parcels of Phase II and Phase III Terrabay
November 29, 2000
Rex,. 1.4.6.Final
!
/
/
/
/
COO
.3
City of Sou-,h San Fra=isco
Lorn 3~, 393, 3~1~, 395, 396 And 397 ~Sho~ On ~ cem~ ~p eu~ed "Te~bay,
Sou~ S~ F~o, S~ ~o Co--w, C~o~". ffl~ ~ ~ o~ of ~ Co~
~~r of S~ Ms~o ~m~, S~ of Califo~ on luly 2. 1990 ~ Book: 121 of ~ps at
pag~ 65 ~ou~ 79 ~ive.
~.xea~pting from Los 394 and 395 Yim~ purdon th=reof set forth in a certain Fh~al Sud~
{n F~{,~n~ Domakl, Superior Court, San MaTzo Coumy, Case # 37959g. recorded l~Iareh
1, 1996,
A.ssessor's Parcel Number-.
Joint Pardi Number.
007-641-030
007-64-1-040
007-650-0~
O07-650-070
007,-650-O30
00/-650-040
1214365-O(X)-392-T
121-06~-000-393-T
12 I-0{55-000-394-T
121-065=000-395-T
I2~q365-O(D-396-T
COO
'000031
Exhibit "C"
Restated and Amended Development ~4greemetzt For Remaining Parcels of
Phase II and Phase III:
Title Reports for the Property
C00032
EXHIBIT "C"
Commonwealth
POLICY OF TITLE INSURANCE
COMMONWBALTH LAND T1TL£ INSURANCE COMPANY
Amou~ of _?n_~,ance:
Dam of PoIi~*ff: D~..~ber 22,
1999 11:02 a.m.
Policy/File Number:
79gS1233
].. Nerae of
1Viy~/Sunchase I, LLC, a Delaware limit, ed liability company \
The c~m~: or interest tn rim land described here. in and wMch ~s covered by this policy is:
AFFF
3. TI~ c~xa~ or iurzres~ referred m heroin ~s az Dam of Policy wsmd in:
.)
MyerslSunchase l, LLC, a Delaware !im~te/[ liability company.
(;00 28
600033
79~1233
SCHEDULE
A. C-mm~ a=t special cax~s, incluclin~ any personal pmpe-ny taxes, and ass~ssmcna collected
with taxes for d~e fiscal yt~r t999-2000.
$3,808.$$ P~id
$3,808.33 Opea
Hom~ow~rs' Exemption
None shown
Ass~sot"s Parcel No. 007-641-030.
Th~ following asstssw~:nt(s) ar~ coll~ctccl with and ~e included in th~ g~mxa[ a~t special rz.x~s
A.mo~:
Fe4rral Storm Wa~:t Program SSF
S116.56
Amour: $!.72
CSA ~11 Wa~e-r Assc~u:nt
Torah $190.28
B. ~ ~ Slx:iai tax=s, inr. ludk~ any pcrsov-I pmpmW tax~, asui assessmeuts collcc~r~i
wkh ta~s far T~c fiscal year 199g~20C~.
S~mxt Insmllmc~:
$3~6S.40 Paid
$3,365.40 Open
~s~sor's Parc~t No. 0Q7-641-040.
l'ha foBowin8 ~as=ssm~uRs) arc r..ollc:~r~ wi~ and are inelud=d in ~he gem=rat and special mx~s
shown abow:
Fe&~ Scot'm Wrr~ Program SSt=
Sl04.3B
Pu.rtx~c: Fed~Sram Sr. orm F~
sLT'z C' 0 0 -
CSA #11 Water
k
~ a~ ~=~l tax~,/r~udiv, g ~ny p~r~onal property ra.x~s, and ~se~m~ar.~
Fi~t ~:
S~,ond Im-tallmcm:
$6,0'H,68 Pai~
$6,071.68 Open
Parcel No. 007-650-060.
I-{onmowue~' Exemption:
Fezlet~ Storm Wa~r Pro~n SSF
$1.74
$!.'/2
C.~A ~tl 1 W'a~er A.sscssmu-uc
$72
Purpose':
D. Ge~.z-~t and s--pccL~l taxe~, mclud~ug ~ personal properv/taxes, and a_sscssmcn~ collcc-~d
~.,ith taxes for thc fiscal yeaz 1999-2000.
Sec. ortfl f. ns',.aUment:
$3,9~.65 Pa&/
$3,996.65
Non~ show~
~sc~s~r's Parcel No. 007650-070.
Home~wn~t~' Exempficm:
The followi~ assessme~(s) are collected wi~h ~ u'~ ir~uded in ch~ g~eral an~ special taxes
Fede~ Storm W~t:r Pro~ SSF
$I.74
Fe~l/S~_~te Storm F~
$I.72
C..SA ~I 1 Wa~er Ass~m~nt
$75.a~
show~ above:
Purple:
Amount:
Purple:
To;ak
7~51235
E. G~eral an~ special taxes, inclum,~ any p~r~onal propen~ taxes, md ess~ssn~.n~ collected
with tax~s for th= fiscal yea~ 1999-7000.
Firs~ Lu~allmep~:
5ocond Insral~
$2,1%5.18 Paid
Homeowners' ~x~pnon:
No~ shown
,~.ss~sor's Parcel No. 007..650..030.
The followi~ assassin, s(s) are coll~ct~l wkh ~ are iaclud~l i~ ae g~.=raI and special u~xe.s
shown above:
l::~eral Storm Water Pro~ SS1;
Purpose: F~//Smze Storm
AmO~: $I.72
C. SA #ll War~r Assessrn~
$72.00
F. Gc~=~.I an~ spe~al r~xe~, innlu4~tg any p~rsonal prop~y t~tes,
wkh ~ for th~ ~ year 19~-2000.
Sccoud I~,~.I ~:
$2,4-38.93 Paid
Horac-owners' Exeu~fion:
shown
No. 007-650-040.
Thc followir~ a~s~s~:n~:~(s) ~re coLlccr~l with aazi arc indudcd ~n th= g¢~ral ,pa special tax~s
shown above:
F~crai Storm Wa~r Program SSF
Purpose: F~d/Stau; Storm F~
~unt: $1.72
CSA ~11 Wa~r
G. Th~ lica of supplcra~ tax=s, if any, a.sse, sied pu.,'alan~ to the provisio~ of Sect. ion 75, e~
scq. of thc R=vea~u~ .~4 T.~x~don Code of r~ Stare of California.
79~1~3
Rcr. o~dcd:
May 24, 1884 in Book 37 of D~/s at page 356 ~nd S~pr~mber 22, 1890 in
Book $4 of Dee~ at page 189
pipelh'~
Lots 396 ami 397 a.ud a po~on of land dcsiKmIed as 'Remainder" as shown
on th= map
2. An ~_~rn~_r for the purpose shown below and rights incid--r.! rherelo a.s set fomh Ln a
docum~.~
P,~mrdcd:
Th~ wansmi~ion and disu-ibu~ou of elecwiciw, a lin~ of ~owe~
pi~ ~, ~v~ for ~nvey~t ~ ~p~o~ ~, oil ~
~y 18, 1~ ~ B~k 174 ~ Pag: 153: l~y 27, 1~ ~ B~k 179 a~ Pag~
426; ~y 17, 1925 ~ Book 1~ ~ P~e 43 ~ M~& 30, 1929 ~ Book
Affects:~LOts..392 and-39gas shown-on-said-map referred m herein
3. An cascmc~ for thc purpose shown b~Iow nn~t rights incid~.uml the. rem as sec forth in a
August 31, 192g in Book 374 a~ pa~: 9~ of Official Records
slope of highway cut .~4 ~
Lots 394, 395,396, 397 and ~ portion of land desigp.r,-H as 'Read, in,er" ~s
shown on rl~ rr~p
4. An easemm~ for the purpose shown below .nd rights incidental thcrctn as se~ foruh in a
d~
P, cco~ed:
D~__~mber 6, 1928 in Book 390 a~ page 139 of Official l:;,ecor~
pipclin~
Lacs 396, 397 ami a portion of land ctcsi~nated ~ "Remainder' aa shown on
5. An cas~.oz for thc purple r~own below and ~ lncidemal thcreno as set forth tn a
November 25, I935 in Book 670 at pagc 173 of Official Rc-c~rds
Afl. ts:
pipelLuc
Lcn 397 and a portion of lust designated as "Remainder" a_s s~ on ~c
COO 3
7~851233
6. Coy=re.nm, comiidon~ and te~n'iedo~ (deleting fl~ete~om any r~m~ions bu,:U
c..olor, or ~e~d), as provld~ in a doc~me.n~
M[ay 2B, 1936 i~ Book: 702 zt page 352 of Official R~orcla
Said dacun~, among odmr t.l~g~, cantatas or prov~d~ fo~: the t-ollowing:
An cas~ over th= portion of ~id land ._nO for the Purposes therein shown, ~.d rights itmktental
wamr pipes ~nd pipelines
Lot 394 as shown on thc map
7. Covemam, cot~liriom anti resn'icdons (c~[~ia§ r.t~rct~tom any r~ri~ons ha~l on race,
color, or cr~ti), as provkled in
P,~.ortted: 1Vlarch 29, 1940 in Book 887 at page 276 of Official Recor~
Said d~, among other ,h~n~, CO_hr.(nS or provides for fl~ following:
An cascm~n~ over the portion of said ~ and t'or thc purposes therein shown, anti ri~a~s incidemal
thereto
~or.' '
pipelin~
Lots 396, 39'7 and ~ poruon of Ianti clestgnar~l as 'R~m~ainder" as shown on
g. A docum~n~ mbj~c~ m all ~ ~, ptovisio~ and comi~ons th~ein conn~n~d.
Endfl~h
Da~t:
~cl by:
Recorded:
A docun~nl: sub]e~-'t to all thc wA'tn.s, provisions md co~lMoas r~r~m con~.
by:
Trust Agrccm=m R~rding San Bruno Mountain Area. Habitat Consex'vatiot~
Plan
November 1982
visitscion Associate, a Californ_ i, Paxttm~;
Foxhall Invc~'m~'-ut. Ltd.~ and
Forc~nast-~soa, In~., · MaryLsad Corporation
M'axch 2~, I983, ~ Docu.mc~ No. 83_(Y~ ~R~31, OfficiaI Records
000
79t~123~
off~rcd for d~Ucafion on d~c rccord~ map ~how~ b~low ~
Map of:
Filed:
Affects:
Aff~.t~:
P'atcel Map
Novembc~ 17, 1987, in Book 53, Pag~ 92-85,
Officml Records
Lot 394
P~E - Tow~ Lin~
Lo~ 392 anti 393
10. A documem subject Tn all ~hc terms, provisiom and conditions therein contained.
Ordinance No. 921-8), Approving anti AdqpfiI~ D~elopmcnt Pla.u
May 4, 1983
Thc Cky of Sou~ S~u Ft-__~-&sco.
· a municipal ~rpor~ion
Dccctrgocr $, 1988 as Document No. 8816,~838 of Official R~cocds
- 1 I. A document s-abject-to all the_terms, provisions and conditions ~cin contains.
F~;Qed:
Da. md:
~xct~r.A by anti
April t4, 1988
Tcrtab~y, a California ~ Pa.rme~ltip a.~ct
D~ 5, 1988 ~ D~ No. 881~39 of O~ Re~r~
Modifications) of said Dc~clopm~ ~
D~..mbcr 26, 1986, u Document: No. 96159030,
OflSclal Kecords
ModLfic~fioa(s) of said D~clopmcm Agt~
P,x. cord~:
Ocm~ 29, I997, as Documc~ No. 97140187,
Ogic~l R~ordz
12. An ~asemr.~ for d~ p~rposc shown bclaw and rights ~,cidental ~creto as set forth in
Gmm~
Thc Couta7 at' -(::an ~.azca
March 14, 1989 as Dooamcnt No. 89032872 of Official Kccor~
portions of Lot 394 and 395 as shown on s~d ma~
000
~/9851233
13.
subject to ail th~ terms, provisions ,~ condkio~s :b~mL~ co~aimxl.
Enthled:
Dared:
Ex~cu~i by and bet'ween:
Agt~-ni Subdivismn Improvtmenta Tr.4Tabay Subdivision
Sun~ 15, 1990
TI~ City of South San Prasdsco, a m-n~cip~l corporation au4
Terrabay, ~ California General parm~ship, by W. W. Dean &
Assoc~es, a C~_)ifomia corporaUon, g=usral partu~
luly 2, 19i)0 as D~ No. 9008'/$6? of Official Racords
14. An r, as~r~ for the purpose shown be. Iow axut tibias ~ ~exem as s~ forth
Plli'pose:
Affects:
'public
Portious of thc herein dr~cfilr, d laud, ~ exacx location of which
calm. bi: 4~:tlllillt4 by examiuation of the above-mentiou,~ci
~, which covIains a compI~ lcKal desctapfion of th~
affecm~ por~io~ of said
15. A cloo. _4mens subjw-4: to all r.h~ re:ms. Nrovisious ~ conditions therein
Enfitlexl:
Da~xi:
Ex~ttt~l by:
la.~rd~:
Re:sol. on No. 56422
^ugu.~ 18. 1992
Board of Supervisors of ,,he ComltT of San Francisco
Augus~ 24, 1992, as D~ No. 92136306, Official P,~corcls
16. An ~as~me-uc for th~ purpose' shown b~low and tights }ucklculal r.]~:r~.o ~ see forth in a
Racordexi:
Novemb~ 17, I992 as Documeu~ No, 92188435 of Official
righ~ of way
TI~ ~.acc loc~iou and cxu:~ of said ~asc~uen~ is not dLsclosr~i of
[b:-rr.~ordc:d:
Noveml~r 23, 1992 a.s D~ No. 92192156 of Official
Records
17. ~ ~as~n~n~ for ~e purposc show:{ b~low and rights incident, al tl~ren~ as set forr~ in
Califoruia Wa~r Service Cum:party
pipeli~
~ 4, 1995, as Docum _~-~_ No. 95105'/13, Official
10 feet ia wid~ over ~rea mark~ re~erv~ on fthxi map over lots
'79851233
TI~ ~n~rs se: f°'r',h in ~hc do~ ~ below w~ch, ~ng o~r ~i~s, con~ or
provi~ for: ~ ~~; li~ ~ ~c subor~o~ ~cof; ~ cov~,~, co~i~o~ ~
~o~ (d~ ~y r~ui~io~ ~~ ~y p~efer~, l~fion or ~sc~mi~on b~ on
color, reli~o~ s~, b~di~, f~J!~ s~ or ~io~ ofi~). P
19, 1996, as Docume~ No. 96101".~.~., Official l~w-~rds
Liens, charges aad a~s~sm~.s levied pun-ua~t m said
Assoch~on:
San Bnmo' Mo~ Ar~ l-hbkaz C~nscrvat-ion Trus~ CJO the San
Maz~ Coumy Directory of Pmvironme. n~ Mmag~
19. An eascmc~ for tiic purpas~ shown bdow
O~ed to: F=ller Media Compaay
Purpose: Sign, ^corns, and U~ili~i~s
Retarded: ~[un~ 2~, 1999, as Docume~ N0. 99109932, OffichI Rt. cords
Affects: Refc~cm::c is mad: topsaht doru.m~t for full particulars.
20. A docum~ subjec~ to ail ri~ ~erms, provisions and co~ikiora
TI~ Following Ivian~r~ Afl'~c~ Loc 396:
Guard l~,i! ~la i~o said 1~, 1.8'
Wa~r V~w ~o~ ~ s~d Io~, 0.6'
~E M=~ ( ¢' ~) ~~ ~ s~d lob 1.4'
B' ~S~o~ D~ ~ ~m~ ~a s~d lot,
*Tire FoIlowlnB ),{ar~l-s Affcc~ Lot, 397:
36' P, CP Inle~ ~s loc. aze4 within sa~d Lob
c~crc~a~h~ imo said lot 1.0'.
sign en~roach~ Lure s~l lot, 1.$'
Cl. pi~ ia locaud wirin r~id Io~.
22. T~s and conditions of an -nrccord~ Di~posinon i~cerne~ by and bet'ween Mycrs
Ten'al:my C..on'~oa.uy, _~ ? C, a Dcla,~arc limi~.d liabili~ Corapany ~ StmCl~c G.A. CalLforn~ I,
Exhibit "D"
Restated attd Amended DeveloiJment Agreement For Re~naining Parcels of
Phase II and Phase III:
Terrabay Building Improvement Schedule
Exhibit "D"
Restated attd Am ended Devel°Pm ent Agreement For Re~naining Parcels- Of
Phase H And Phase III
Terrabay Building Improvement Schedule
Traffic Improvements Payment Terms. City has agreed to construct certain Traffic
Improvements required under the SEIR that were originally the Owner's obligation. In lieu of
Owner constructing said improvements, Owner shall provide to the City a "Set Aside Letter"
from a chartered bank, in a form acceptable to the City Attorney, stating that five million dollars
($5,000,000.00) (the "Set Aside Letter") is available to the City to be used exclusively for the
payment of the actual costs of the improvements, or any costs related thereto': described in
subparagraphs (a), (b), (c), (d) and (e) of Section (A)(4) of this Exhibit "D," hereinafter,
collectively, "Traffic Improvements."
The only conditions, limitations or restrictions on the City drawing funds from the Set Aside
Letter is that the City spend funds drawn from the Set Aside Letter for the sole purpose of
paying for the actual costs of the Traffic Improvements, and costs related thereto.
The Owner's obligation to provide $5,000,000.00 in a Set Aside Letter under this Section
"A" shall be the complete and total payment for the Traffic Improvements required for
development of the Property as proposed in the Final Terrabay Specific Plan. Once the Set
Aside Letter is provided to the City, the City shall be entitled to any interest that accrues on
the funds available under the Set Aside Letter before the funds are withdrawn. The amount
of interest shall equal the return paid, as of August 1, 2001, under the Local Agency
Investment Fund (LAIF) established under California state law for the applicable time period
before the money is withdrawn and shall bc credited at the time the money is disbursed from
the account.
The Set Aside Letter identified herein shall be provided prior to Owner receiving a grading
permit for any phase of the Project or on or before August 1, 2001, whichever occurs first.
If Owner does not request a grading permit for any Phase of the Project prior to August 1,
2001, Owner shall not be required to provide the Set Aside Letter. However, Owner shall
be required to pay interest in an amount equal to the rate of return on the San Mateo County
Transportation Authority's investments to compensate the City for the interest incurred as
a result of drawing down five million dollars ($5,000,000) of its loan from the San Mateo
County Transportation Authority. Owner shall pay interest as required above until such time
as Owner requests a grading permit for any phase of the Project. Upon delivery of the Set
Restated and Amended Development Agreement
For Remaining Parcels of Phase II
and Phase III of the Terrabay Development - Exhibit D
November 12.2000
Revision 1.3.2
Page I of 6
000
o
Aside Letter, Owner shall be relieved of its obligation to pay any interest as aforesaid
accruing after the delivery date of the Set Aside Letter.
The Traffic Improvements under this Section (A) are defined as follows:
(a)
Construct the hookramps from Highway 101 to Bayshore Boulevard opposite the hotel
site adjacent to the former Phase III site or with the consent of the City Council, construct
interim improvements to the scissors ramps from Highway 101 to Bayshore Boulevard
opposite the former hotel site adjacent to the former Phase Iff site;
Construct the new Oyster Point Boulevard Interchange, which includes the Oyster Point
flyover, and which connects, by means of a four (4) lane bridge, Oyster Point Boulevard
with Airport Boulevard or, with the consent of the City Council, construct an acceptable
alternative to the Oyster Point Boulevard Interchange;
(c) Reconstruct Bayshore Boulevard from the northern City limit line to Randolph Avenue;
(d) Construct traffic signals along Bayshore Boulevard at the hook ramps and at the southern
entrance to the Property which portion was formerly identified as Phase iff;
(e) Payment of all applicable Oyster Point Interchange Fees.
o
In consideration for the Traffic Improvements payment under the Set Aside Letter, the
provisions of Exhibit E, Section IV of the Agreement relating to the scheduling of residential
and commercial building phases are hereby deleted in their entirety as they relate to the
Property.
Notwithstanding any provisions of this Restated Agreement to the contrary, excluding the
Traffic Improvements obligations as contained in Section (A)(4)(a) through (A)(4)(e), the
provisions of the Agreement for the Terrabay Development site remain in full force and
effect between the parties.
Procedure for Phasinl~ of Development Approvals: Pursuant to the Final Terrabay Specific
Plan, Owner intends to complete the Project according to phase. The first phase of construction
proposed is the Commercial and Residential Components, including restoration of the property
as contemplated in the Final Terrabay Specific Plan. The Residential Component consists of 70
on-site attached single family units and 32 Below Market Rate units located off-site. Because
the BMR units are located off-site, the time for completion and conditions pertaining to the
development of those units will differ from that of the 70 attached units. As such, the BMR units
are addressed separately under Section I(A) of Exhibit H of this Restated Agreement and are not
considered to be a part of the Phase I construction of the Project for application and satisfaction
Restated and Axnended Development Agreement
For Remaining Parcels of Phase II
and Phase III of the Terrabay Development - Exhibit D
November 12. 2000
Revision 1.3.2
of the conditions set forth in C immediately below, except as otherwise noted below. The second
phase of the Project is the 95 unit Condominium Component. City agrees to permit Owner to
grade the condominium site at the same time as grading begins for Phase I. The specific
requirements for grading of Phase II will be discussed and agreed to between the Parties prior
to any §rading on the Property.
As proposed in the Final Terrabay Specific Plan, the City will cooperate with Owner to facilitate
phased construction of the Project by timely reviewing the Plans, specifications and applications
for permits submitted for each Phase of development. Said review and any comments on the
Plans submitted shall be provided in accordance with the time periods specified by State law and
local ordinances.
1. Phase I: Issuance of Gradin~ Permits. Grading permits, including any permits for any
rough grading, may be issued by the City for Phase 1 only after: .
(a) A Vesting Tentative Map for the Project has been approved by the City; and,
(b) A Precise Plan for Phase I has been approved by the City; and,
(c) Owner provides the Set Aside letter identified in Section (A); and,
(d) A Subdivision Improvement Agreement and bonds related to the installation of public
improvements for Phase I have been executed; and,
(e) A final subdivision map for Phase I has been approved by the City Council and recorded
with the County Clerk.
2. Phase I: Issuance of Building Permits: Building permits may be issued by the City for any
structures in Phase I, including model homes, only after:
(a) Grading permits for Phase I have been approved by the City Engineer; and,
(b) A precise plan for Phase I has been approved by the City Council; and,
(c) A final subdivision map for the Phase I has been approved by City Council and recorded
with the County Clerk; and,
(d) All applicable provisions of the Habitat Conservation Plan for the Remaining Parcels of
Phase 11 and Phase ltl, including the dedication of open space to San Mateo County to
the extent dedication is required under the Habitat Conservation Plan, have been
complied with to the satisfaction of the Chief Planner; and,
Restated and Amended Development A~eement
For Remaining Parcels of Phase II
and Phase III of the Terrabay Development - Exhibit D
November 12. 2000
Revision 1.3.2
Page 3 of 6
000
(e)
(g)
Improvement contracts together with bonds satisfactory to the City Engineer for their
completion have been executed for construction of the public improvements identified
in the Final Terrabay Specific Plan and as identified during Precise Plan review; and,
City has received the required Set Aside Letter for items identified in Section (A); and,
Owner has conveyed to the City the land identified in the Myers Property Agreement
("Property Agreement") free and clear of all sign easements and sign structures. In the
event Owner is unable to perform its obligations under the Property Agreement, Owner
shall undertake all steps necessary in order to convey to the City fee title to the property
identified in Section 1.1 of the Myers Property Agreement, free of the sign easements and
structures that currently encumber the property. Owner agrees that such steps may
include paying the City's costs to acquire the property through condemnation. In the
event condemnation is required, Owner shall pay all costs of acquiring the property and
extinguishing the sign easements associated therewith. Costs of condemnation shall
include, but are not limited to, property and sign acquisition, expert witness fees,
appraisal fees and attorneys fees and costs.
Phase h Issuance of Certificates of Occupancy. Certificates of Occupancy may be
issued by the City for any structures on Phase I excluding the non-residential use of model
homes, only after:
(a)
Supporting utility systems, roadway systems, parking and landscaping have been
installed for those buildings for which occupancy permits have been requested, to the
satisfaction of the City Engineer, Chief Planner and Director of Recreation and
Community Services; and,
(b)
Landscaped and irrigated fire breaks have been installed for Phase I to the satisfaction
of the Fire Chief and Director of Recreation and Community Services along the
perimeter of the dwelling units and other buildings for which occupancy permits are
being requested; and,
(c)
Drainage catchment basins and improvements related thereto have been installed for
Phase I to the satisfaction of both the City Engineer and the County of San Marco
Director of Public Works along the perimeter of the dwelling units and other buildings
for which occupancy permits are being requested; and,
(d) Owner has contracted for the acquisition of a site or sites suitable for construction of
the BMR Units; and,
Restated and Amended Development Agreement
For Remaining Parcels of Phase II
and Phase III of the Terrabay Development - Exhibit D
November 12, 2000
Revision 1.3.2
Page 4 of 6
(e) Construction has begun on the trail head and trail east of the Terrabay Park phase from
Terrabay Drive to the satisfaction of the Director of Recreation and Community
Services upon receiving all necessa~ City and County approvals, which approvals shall
be diligently pursued by Owner; provided, however, this obligation shall not prevent
Owner from receiving a Certificate of Occupancy in the event the County refuses to
grant approvals required to construct the trail in the location presently identified.
4. Phase II: Issuance of Gradine Permits: Grading permits, including any permits for any
rough grading, may be issued by the City for Phase li only after:
(a) A Vesting Tentative Map for the Project has been approved by the City; and,
Co) A Precise Plan for Phase 12I has been approved by the City; and,
(c) Owner provides the Set Aside letter identified in Section (A); and,
(d) A Subdivision Improvement Agreement and bonds related to the installation of public
improvements for Phase 11 have been executed; and,
(e) A final subdivision map for Phase I2[ has been approved by the City Council and
recorded with the County Clerk.
5. Phase II: Issuance of Buildine Permits: Building permits may be issued by the City for
any structures in Phase ri, including model units only after:
(a) Grading permits for Phase ri have been approved by the City Engineer; and,
(b) A precise plan for Phase 12I has been approved by the City Council; and,
(c) A final subdivision map for the Phase 11 has been approved by City Council and
recorded with the County Clerk; and,
(d)
All applicable provisions of the Habitat Conservation Plan for the Property, including
the dedication of open space to San Mateo County, to the extent dedication is required
under the Habitat Conservation Plan, have been complied with to the satisfaction of
the Chief Planner; and,
(e)
Improvement contracts together with bonds satisfactory to the City Engineer for their
completion have been executed for construction of the public improvements identified
in the Final Terrabay Specific Plan and as identified during Precise Plan review; and,
Restated and Amended Development Agreement
For Remaining Parcels of Phase II
and Phase III of the Terrabay Development - Exhibit D
November 12, 2000
Revision 1.3.2
Page 5 of 6
000 4
?-
(f) City has received the required Set Aside Letter identified in Section A.
Phase II: Issuance of Certificates of Occuoancv. Certificates of Occupancy may be issued
by the City for any structures on Phase II excluding the non-residential use of model units,
only after:
(a)
Supporting utility systems, roadway systems, parking and landscaping have been installed
for those buildings for which occupancy permits have been requested, to the satisfaction
of the City Engineer, Chief Planner and Director of Recreation and Community Services;
and,
Landscaped and irrigated fire breaks have been installed for Phase II to the satisfaction
of the Fire Chief and Director of Recreation and Community Services along the
perimeter of the dwelling units and other buildings for which occupancy permits are
being requested; and,
(c)
Drainage catchment basins and improvements related thereto have been installed for
Phase II to the satisfaction of both the City Engineer and the County of San Mateo
Director of Public Works along the perimeter of the dwelling units and other buildings
for which occupancy permits are being requested; and,
(f)
Construction is substantially complete on the trail head and trail east of the Terrabay Park
phase from Terrabay Drive to the satisfaction of the Director of Recreation and
Community Services upon receiving all necessary City and County approvals, which
approvals shall be diligently pursued by Owner; provided, however, this obligation shall
not prevent Owner from receiving a Certificate of Occupancy in the event the County
refuses to grant approvals required to construct the trail in the location presently
identified.
F:\WPDhMN R SWX¢05\035~AGREEXPH AS E3\I _TerBay_Exhibi'tD_kaj_Nov 12_final I .doc
f;O0 4 i
Restated and Amended Development Agreement
For Remaining Parcels of Phase II
and Phase III of the Terrabay Development - Exhibit D
November 12, 2000
Revision 1.3.2
Page 6 of 6
Exhibit "E"
Restated and Amended Development Agreement For Remaining Parcels of
Phase H and Phase III:
Myers Property Agreement with City
000 4 ~
AGREEMENT
THIS AGREEMENT is made and entered into this ..... day of ,2000, by and
between the CITY OF SOUTH SAN FRANCISCO, a municipal corporation (the "CITY"), and
MYERS PENINSULA COMPANY LLC, a Delaware limited liability company ("MYERS").
RECITALS
WHEREAS, MYERS is developing a project described as the "Final Terrabay Specific
Plan Property" (the "Project"), within the Terrabay Development which is located within the
CITY; and
WHEREAS, CITY and MYERS desire to cooperate by exchanging certain property
interests, for no additional monetary consideration, in order to facilitate the Project and certain
adjacent roadway and utility improvements; and
WHEREAS, in order to facilitate the construction of a joint utility trench and the grading
of the adjacent portion of B ayshore Boulevard, MYERS is willing to grant to CITY a temporary
construction easement to permit the temporary placement of an overhead utility line; and
WHEREAS, CITY requires the use of a portion of MYERS property for the temporary
placement of construction trailers and other equipment for Phases II and 1II of the Oyster Point
Interchange Project and MYERS is willing to grant such use, provided it does not interfere with
other uses of the property and can be terminated when MYERS requires access to the site for
construction work; and
WHEREAS, CITY requires temporary access to a portion of MYERS property to
construct retaining walls within the Bayshore Boulevard right of way that will benefit MYERS;
and
WHEREAS, to assist in the construction of improvements to Bayshore Boulevard,
MYERS is offering to dedicate to CITY a fee title to that certain real property described in
Section 1.I below; and
WHEREAS, CITY previously acquired a former portion of the Terrabay Development
site but has determined that a portion of this acquisition is no longer needed and is willing to
convey the property in fee to MYERS that certain real property described in Section 2 below.
THEREFORE, in consideration of the mutual promises contained in this Agreement, the
parties agree as follows:
1. Transfers by MYERS. As part of this Agreement, MYERS agrees to convey to City
the following interests:
1.1 Dedication of Right of Way for Bayshore Boulevard. To accommodate
CITY's requirements, MYERS agrees to convey and dedicate to City by quitclaim deed the real
property described in Exhibit A.
1.2 Temporary Construction Easement. To accommodate CITY's requirement of
temporary access to a portion of MYERS property in order to construct ret~)~ walls,within the
1
790200.2
Bayshore Boulevard right of way that will benefit MYERS, MYERS shall convey to CITY a
temporary construction easement in substantially the form attached as Exhibit B.
1.3 Temporary Construction Trailer Easement. To accommodate CITY's
requirement to use a portion of MYERS property in order to temporarily place construction
trailers and other equipment for Phases II and III of the Oyster Point Interchange Project,
MYERS shall convey to CITY a temporary construction trailer easement in substantially the
form attached as Exhibit C.
1.4 Temporary Pole Line and Guy Anchor Easement. To accommodate
construction of a joint utility trench and the grading of the adjacent portion of B ayshore
Boulevard, MYERS has conveyed or will convey to the CITY a temporary pole line and guy
anchor easement, in substantially the form attached as Exl'fibit D.
2. Transfer by CITY. CITY agrees to convey to MYERS by quitclaim deed all of its right,
title and interest to the property by means of a deed substantially in the form attached as Exhibit
E, and subject only lo such exceptions as indicated in the lille report.
3. Exchange. The exchange of fee titles contemplated under this Agreement are
exchanges of real property that are roughly equivalent ia value. The parties intend that the
contemplated exchange shall be accomplished in order to provide full consideration to each
party to the Agreement.
4, Conditions Precedent. The obligations of each party described in Sections 1 and 2 are
subject to each of the following:
Concurrent Conveyances. Ail conveyances and transfers must occur simultaneously, except as
otherwise mutually agreed.
4.1 Termination of Billboard Easement. MYERS shall have received a
conveyance terminating the existing billboard easements as contemplated in the Sign Relocation
Agreement ("Exhibit F") attached hereto and incorporated herein.
4.2 Vacating of Public Street. CITY shall have vacated any public street and
public utilities interest affecting the property pursuant to the procedure outlined ia California
Street and Highways Code 8300 et seq.
4.4 Title Policy. The property to be conveyed pursuant to this Agreement shall be
subject only to such exceptions as reflected in the title report and approved by grantee. MYERS
shall obtain a CLTA or ALTA title policy, as MYERS elects, from Old Republic Title Company
("Title Company") insuring title for the property conveyed pursuant to Section 2 in MYERS for
$100,000, subject only to approved exceptions. MYERS will obtain a title policy insuring title in
CITY for the property conveyed pursuant to Section 1.1 for $I00,000, subject only to such
approved exceptions.
4.5 Environmental Conditions. The Phase I environmental audit conducted on
M-YERS behalf shall be satisfactory to MYERS.
000
2
~ ' ' 790200.2
5, Escrow.
5.1 Delivery of Executed Agreements; Escrow Agent. The parties agree that Old
Republic Title Company, 350 California Steel, Suite i220, San Francisco, CA 94104 shall act as
Escrow Agent and shall open an escrow with Escrow Agent. The escrow instructions shall
provide for the deposit by each party of the documents described in Sections 1 and 2 at least one
day prior to Closing.
5.2 Closing Expenses. MYERS shall pay all title insurance premiums, escrow fees,
recording costs, and all other Closing costs.
5.3 Closing. Escrow shall close within ten (10) days of satisfaction or waiver of the
conditions precedent set forth in Section 4.
5.4 Waiver of Appraisals. The parties hereby waive any and all real property
appraisals that they may be entitled to under federal, state and local law.
5.5 Mutual Indemnification of Parties. Upon recordation of the interests in the
property identified in Sections 1 and 2 of this Agreement, the CITY agrees to defend,
indemnify, and hold MYERS harmless (including, without limitation, attorney's fees and costs)
in connection with any and all claims, liabilities, obligations, and actions rising out of CITY's
use, occupancy or occupation of the said property. Upon recordation of the interest in the
property identified in Sections 1 and 2 of this Agreement, MYERS agrees to defend (with
counsel selected by CITY), indemnify, and hold CITY harmless (including, without limitation,
attorney's fees and costs) in connection with any and all claims, liabilities, obligations, and
actions arising out of MYERS use, occupancy or occupation of the said property.
5.6 Hazardous Materials: As used herein, the term "Hazardous Materials" or
"Hazardous Substances" shall mean: (a) any substances defined, regulated or listed (directly or
by reference) as "hazardous substances," "hazardous materials," "hazardous wastes," "toxic
waste," "pollutant" or "toxic substances" or similarly identified as hazardous to human health
or the environment, in or pursuant to (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. '9601 et seq. CCERCLA"); (ii) the
Hazardous Materials Transportation Act, 49 U.S.C. '1802 et seq.; (iii) the Resource
Conservation and Recovery Act, 42 U.S.C. '6901 et seq.; (iv) the Clean Water Act, 33
U.S.C. '1251 et seq.; (v) California Health and Safety Code "25225-25117, 25249.5,
25249.8, 25281, and 25316; and (vi) the Clean Air Act, 42 U.S.C. '7901 et seq.; and (vii)
California Water Code '13050; (b) any amendments to such enumerated statutes or acts; and
(c) any other hazardous or toxic substance, material chemical, waste or pollutant identified as
hazardous or toxic or regulated under any other applicable federal, state or local environmental
laws, including without limitation, friable asbestos, polychlorinated biphenyls ("PCBs"),
petroleum, natural gas and synthetic fuel products and by-products.
5.6.1 As used herein, the term "Liability" shall mean and include any one or
more of the following, based on or arising out of the release or presence of
Hazardous Materials in or on the property interests conveyed pursuant to this
Agreement: any orders, actions, injunctions or expenses (including, without limit,
790200.2
.5
any expenses associated with the response, removal or remediation of such
Hazardous Materials).
5.6.2 MYERS shall indemnify, defend (with counsel selected by CITY) and hold
harmless CITY, from and against all Liability for that property identified in Section
1.1 of this Agreement. MYERS agrees that upon receipt of any notices of the
presence of, or a release or potential release of Hazardous Materials on or under the
Property for which it is liable under the provisions of this Agreement, MYERS shall
timely initiate and diligently pursue and complete all appropriate response,
remediation and removal actions for the release, within the deadlines specified by
applicable laws and regulations.
5.6.3 CITY shall indemnify, defend (with counsel selected by MYERS) and hold
harmless MYERS, from and against all Liability for that property identified in
Section 2 of this Agreement. CITY agrees that upon receipt of any notices of the
presence of, or a release or potential release of Hazardous Materials on'Or under the
Property for which it is liable under the provisions of this Agreement, CITY shall
timely initiate and diligently pursue and complete all appropriate response,
remediation and removal actions for the release, within the deadlines specified by
applicable laws and regulations.
5.6.4 So long as each party is not in material breach hereof, and is discharging its
defense and indemnity obligations in a reasonable and responsible manner for a
Liability, and it has accepted and is discharging responsibility hereunder for such
liability without any reservation of rights, each party hereby assigns to the other all
of its present and future rights to recover, or receive contribution, from any and all
potentially responsible third parties for those costs, expenses and fees incurred by the
party pursuant to this Indemnity.
5.6.5 Subject to the foregoing, each party hereby also assigns its rights to the
· 'Other party to bring an action against or otherwise cause any or all of such potentially
responsible parties to take responsive actions, and to remove and remediate the
Hazardous Materials. Each party agrees to cooperate fully with the other in the
preservation and prosecution of all such claims and private enforcement actions.
5.6.6 So long as the parties are not in material breach hereof, and are discharging
their defense and indemnity obligations in a reasonable and responsible manner for a
Liability, and has accepted responsibility hereunder for such liability without any
reservation of rights, each party shall have control over their respective defense of
such Liability without any reservation of rights, and over all negotiations relating to
the settlement thereof·
6.0 Miscellaneous Provisions.
6.1 Effective Date.
written.
This Agreement shall become effective on the date first above
000 4
7~2~.2
6.2
6.3
6.4
6.5
6.6
6.7
6.8
Severability. Invalidation of any provision of this Agreement, or of its application
to any person, by judgment or court order shall not affect any other provision of
this Agreement or its application to any other person or circumstance, and the
remaining portions of this Agreement shall continue in full force and effect, unless.
enforcement of this Agreement as invalidated would be unreasonable or grossly
inequitable under all the circumstances or would frustrate the purposes of this
Agreement.
Exhibits. The Exhibits referenced in and attached to this Agreement are deemed
incorporated into this Agreement in their entirety.
Entire Agreement. This Agreement (including the Exhibits) contains all the
representations and the entire agreement between the parties with respect to the
subject matter of this Agreement and supersedes all prior agreements written or
oral.
Construction of Agreement. The provisions of this Agreement shall be construed
as a whole according to their common meaning anctnot strictly for or against any
party in order to achieve the objectives and purposes of the parties. Captions are
included only for convenience of reference and shall be disregarded in the
construction and interpretation of this Agreement. Wherever required by the
context, the singular shall include the plural and vice versa.
Further Assurances; Covenant to Sign Documents. Each party covenants, on
behalf of itself and its successors and assigns, to take all actions and to do all
things, and to execute, with acknowledgment or affidavit if required, any and all
documents and writings, that may be reasonably necessary or proper to achieve the
purposes and objectives of this Agreement.
Binding Upon Successors. All of the provisions, agreements, rights, powers,
standards, terms, waivers, covenants and obligations contained in this Agreement
shall be binding upon the parties and their respective successors in interest,
whether by operation of law or in any manner whatsoever, and shall inure to the
benefit of the parties and their respective successors in interest.
Governing Lasv. This Agreement, and the rights and obligations of the parties,
shall be governed by and interpreted in accordance with the laws of the State of
California.
6.9
6.10
Counterparts. For convenience, the signatures of the parties to this Agreement
may be executed and acknowledged on separate pages or in counterparts which,
,,,,,hen attached to this Agreement, shall constitute this as one complete Agreement.
Time. Time is of the essence of this Agreement and of each and every term and
condition hereof.
'~o.0200.2
.5
6.11 Notices. Any notice given under this Agreement shall be in writing and given by
delivering the notice in person, by commercial courier or by sending it by registered
or certified mail, or Express Mail, return receipt requested, with postage prepaid, to
the mailing address listed below or any other address notice of which is given;. For
the convenience of the Parties, copies of notices may also be given by telefacsimile,
to the telephone number listed below or such other numbers as may be provided
from time to time.
CITY:
City of South San Francisco
City Manager
400 Grand Avenue, City Hall
South San Francisco, CA 94080
Attention: Michael A. Wilson, City Manager
MYERS:
Myers Peninsula Company LLC
525 Market Street, Suite 3440
San Francisco, CA 94905
Attention: Tom Mallonee
Facsimile: (415) 777-3331
With a copy to:
Hanson, Bridgett, Marcus, Vlahos & Rudy
333 Market Street, Suite 2300
San Francisco, CA 94105
Attn: James D. Holden, Esq.
Facsimile: (415) 541-9366
Any mailing address or facsimile number may he changed at any time by giving written notice of
such change in the manner provided above at least ten (10) days prior to the effective date of the
change. All notices under this Agreement shall be deemed given, received, made or
communicated on the date personal receipt actually occurs or, if mailed, on the delivery date or
attempted delivery date shown on the remm receipt. A Party may not give official or binding
notice by facsimile. The effective time of a notice shall not be affected by the receipt, prior to
receipt of the original, of a facsimile copy of the notice.
6
GOO
f · . /90200.2
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first mentioned above by their duly authorized representatives.
MYERS PENINSULA COMPANY LLC,
a Delaware Limited Liability Company
CITY OF SOUTH SAN FRANCISCO
By: MYERS TERRABAY COMPANY I, LLC
By:
Michael A. Wilson, City Manager
By:
'Name: Jack E. Myers
Title: Manager and Sole Member
ATTEST
By:
ATTEST:
By:
Sylvia Pa)ne, City Clerk
APPROVED AS TO FORM:
By:
Steven T. Mattas, City Attorney
J:\WPDXMnrsxvV405\001XAGREE~000~Vlyers_S SF_property_trans fer_Oct4.doc
7
000 4
· · ' ' ~'~,)200 2
Exhibit "F"
Restated and ~4,nended Development Agreement For Remaining Parcels of
Phase H and Phase III:
Sign Relocation Agreement
SIGN RELOCATION AGREEMENT
THIS AGREEMENT is made and entered into this day of October, 2000 by and between the
City of South San Francisco, a municipal corporation ("CITY"), Eller Media Company, a Delaware
corporation ("ELLER") and Myers Peninsula Company, L.L.C., a Delaware limited liability company
("MYERS").
RECITALS
WHEREAS, Eller is the owner of four (4) sign structures (the "Existing Sign Structures")
located within the City limits along Bayshore Blvd. (California Highway 101) at three separate
locations within Lots 395 and 396 of MYERS' property, as more fully described on Exhibit "A"
attached hereto and incorporated by reference; and
WHEREAS, CITY intends to widen Bayshore Blvd. to an extent that would re.quire removal
the Existing Sign Structures, through condemnation of the Existing Sign Structures or an agreed
relocation thereof; and
wHEREAS, CITY's laws and California Business and Professions Code Section 5412 allow
the use of relocation agreements to appropriately relocate outdoor advertising displays when necessax-y
to avoid the cost and expense associated with condemnation of such displays; and
WHEREAS, CITY desires that ELLER remove all the sign structures and faces identified
Exhibit "A" without payme, nt of monetary compensation from CTIY; and
WHEREAS, ELLER is willing to remove the sign structures and faces as herein provided, and
to waive its right to monetary compensation for said removal from the CITY, provided it is allowed to
erect the following replacement structures (collectively called the "New Eller Faces") as provided irt
this Agreement.
NOW THEREFORE, the parties agree as follows:
1. ELLER shall apply for all building and other permits required by CITY, CalTrans, or
other jurisdictions necessary for the construction and operation of the New Eller Faces located within
the City of South San Francisco within 30 days of the execution of this Agreement. Upon issuance of
said permits, ELLER shall remove all structures and faces identified in Exhibit "A" at no cost to the
CITY, in accordance with the schedule specified below;
2. CITY will not object to ELLER's efforts to transfer two of its existing landscape
freeway permits (permit numbers 10904, 10905, 10906, or 10907) to a non-adjacent jurisdiction;
3. CITY shall allow ELLER to add an additional face to the existing structure located near
Grand Avenue as described in Exhibit "B" attached hereto and incorporated by reference. Said
additional face shall be the same dimension as the existing face on the structure and in no event shall
be larger than 14 feet by 48 feet;
4. Prior to erecting the second face on the structure, ELLER shall replace the hvo-pole
structure identified in Exhibit "B" with a single-pole structure;
Sign Relocation Agreement Page I of 3 (_:: · .... .
5. CITY shall allow ELLER to raise the height of the structure identified in Exhibit "B"
no more than 14 feet such that the maximum height of the structure would be forty-seven (47) feet;
6. CITY shall allow ELLER to add a second face to the existing structure located on
property owned/operated by Union Pacific Raikoad/Public Storage at 11 Oyster Point Blvd identified
in Exhibit "C" attached hereto and incorporated by reference. Said additional face shall be no larger
than 14 feet by 48 feet;
7. CITY shall permit ELLER to relocate the single-pole structure within the existing
easement area subject to the written consent of the property owner;
8. Prior to any demolition, construction or other modifications to the sign structures
subject to this Agreement, ELLER shall obtain all necessary permits required by law for said
construction, demolition or modifications;
9. Upon submittal of building permit applications by ELLER for the activities authorized
pursuant to this Agreement, CITY shall process and approve all permits for construction and operation
of the New Eller Faces in the locations shown on Exlfibits "B" and "C." However, CITY shall not be
required to approve an incomplete or defective application for said permits and may require ELLEK to
comply with State codes governing the construction of such structures;
10. Prior to approval of building permits as described in paragraph 9 above, and within 15
days of the execution of this Agreement, ELLER shall apply for demolition permits for the removal of
the Existing Sign Structures identified in Exhibit "A." The Existing Sign Structures shall be
demolished and removed within 30 days following issuance of'all required permits for the New Eller
Faces located within the City of South San Francisco. Construction of the New Eller Faces shall
commence within 120 days of the issuance of all required building permits for said construction;
11. Any building permits issued for the New Eller Faces shall be made conditional on the
full performance of ELLER's obligation under this Agreement;
12. Upon execution of this Agreement by all parties, ELLER agrees to relinquish all
easements or other property rights it presently maintains on the structures identified in Exhibit "A" by
conveying the easement by grant deed, free and clear of all claims, liens, encumbrances, to MYERS or
the CITY, whoever owns the servient tenement for such easement, promptly upon removal of the
Existing Sign Structures as required under this Agreement;
13. ELLER shall not erect any reader boards, extensions, cutouts or make any other
modifications not authorized pursuant to this Agreement to the New Eller Faces and/or their structures
to the extent said modifications would increase the size of the existing sign face (s);
14. ELLER shall be entitled to own, operate and maintain the New Eller Faces as
conforming istructures notwithstanding the adoption of any CITY ordinance to the contrary and without
limitation as to time, amortization or "sunset" periods. Nothing in this paragraph shall be construed to
permit ELLER to own, operate or maintain any sign in a manner inconsistent with state or federal law.
Any sign placed adjacent to Highxvay I01 shall be consistent with the outdoor advertising permit
procedures of the California State Department of Transportation (CalTrans);
O00
Sign Relocation Agreement
Page 2 of 3
,--- 15. The parties intend that this Agreement facilitate the relocation and consolidation of the
Existing Sign Structures as permitted by California Business and Professions Code Section 5443.5,
· ~ and/or any applicable roles, regulations and ordinances of the CITY, and will permit the issuance by
CalTrans of all required State of California permits and approvals necessary to permit the construction
and operation of th, New Eller Faces as replacement structures pursuant to such laws and ordinances.
To the extent required, CITY shall cooperate with ELLER in facilitating the issuance of all approvals
and permits to be issued by other jurisdictions which are necessary for the construction and relocation
of the New Eller Faces, including amending of this Agreement as necessary to permit compliance with
California Business and Professions Code Section 5443.5;
16. This Agreement shall be binding on any and all successors and assigns of the parties
and shall be governed by the laws of the State of California.
IN WITNESS W~I-IEREOF, the parties have executed this Agreement on the day and year first
mentioned above by their duly authorized representatives.
ELLER MEDIA COMPANY, a Delaware
corporation
CITY OF SOUTH SAN FRANCISCO, a
municiPal corporation
By:
Its:
By:
Michael A. Wilson, City Manager
MYERS PENINSULA COMPANY, a
Delaware Limited Liability company
By: M'YERS TERRA.BAY COMPANY L.L.C
APPROVED AS TO FORM:
By:
Jack Myers, Manager and Sole Member
By:
Steven T. Mattas, City Attorney
ATTEST:
By:
Sylvia payne, City Clerk
J.',WPD\Mnrsw\405\035~AGREEXPHASE3\I el er cty myers s gnrelocation Oct4 final doc
Sign Relocation Agreement
Page 3 of 3
Exhibit "G"
Restated and/t mended Development Agreement For Remaining Parcels of
Phase II and Phase III: · ' -'
Subdivision Improvement Agreement Form
AGREEMENT
Subdivision Improvements
This AGREEMENT dated ,20 is by and between the City of South
San FranciSco, a municipal corporation, hereinafter designated "City," and
· a corporation, hereinafter designated "Subdivider."
WITNESSETH:
WHEREAS, Subdivider has presented
hereinafter designated "maps," entitled
to City for approval final Subdivision maps,
; and
WHEREAS, Subdivider has requested approval of the maps prior to the construction and.
completion of improvements, includ'.mg all streets, highways and public ways and public utility
facilities which are a part of, or appurtenant to, the Subdivision designated in the maps, all in
accordance with, and as required by, the plans and specifications for all or any of the improvements
in, appurtenant to, or outside the limits of. Subdivision, which plans and specifications are described
in Exhibit "A" attached and incorporated herein, hereinafter "plans" and are now on file in the
Office of the City Engineer of the City; and
WHEREAS, the City Council of the City of South San Francisco on
adopted ReSolution No. approving the maps and accepting the dedications therein offered
for street and highway purposes and public facility and utility easements, except for those dedicated
to other agencies, persons, partnerships, associations or corporations, on the condition that
Subdivider ifirst enter into and execute this Agreement with City and meet the requirements of the
Resolution~ and
WHEREAS, this Agreement is executed pursuant to the provisions of the Subdivision Map
Act of the State of California and Title 19 of the South San Francisco Municipal Code; and
NOW, THEREFORE, for and in consideration of the approval of the maps and of the
acceptance of the dedications and easements for street and highway purposes and public facility and
utility easements therein offered, excepting those dedicated to other agencies, and in order to ensure
satisfactory performance by Subdivider and Subdivider's obligations under the Subdivision Map
Act and Title 19 of the Municipal Code the parties agree as follows:
1. Performance of Work
Subdivider shall, at its own expenses, furnish or cause to be furnished, all labor
supplies, equipment and materials, and do or cause to be done, in a good and workmanlike manner
000
all of the improvements within and/or without and subdivision work described in Exhibit AA
attached and incorporated. The cost of such improvements and required items ofwork is estimated
to be , ($ ) Dollars, Subdivider shall
also do all the work and furnish all materials necessary in the opinion .of the City Engineer to
complete the improvements in accordance with the plans and specifications on file, or with any
changes required or ordered by the City Engineer.
2. Places and Grades to be Fixed by City Engineer
All o f the work is to be done at the places, with the materials, in the manner and at the
grades, as shown on the plans and specifications previously approved by the City Engineer and now
on file in his office. All work shall be done to the satisfaction of the City Engineer.
3.' Time for Commencement and Performance
City hereby fixes the time for the commencement of the work to be done on or before
, and for its completion to be within thereafter. At
least fifteen 05) calendar days prior to the commencement of work hereunder, Subdivider shall
notify the City Engineer in writing of the date fixed for commencement thereof, so that the City
Engineer shall be able to provide inspection services.
4. Time of Essence - Extension
Time is of the essence of this Agreement, provided that in the event good cause ia
shown, the City Engineer may extend the time for completion of the improvements hereunder. Any
such extension may be granted without notice to 8ubdivider's sureties, and extensions so granted
without notice to the Subdivider's sureties shall not relieve the sureties' liability on the bonds to
secure the faithful performance of this Agreement and to assure payment of all persons performing
labor and materials in connection with this Agreement. The City Engineer shall be the sole and final
judge as to Whether or not good cause has been shown to entitle Subdivider to an extension.
5. Repaks and Replacements
Subdivider shall replace or have replaced, or repair or have repaired, all pipes and
monuments which are destroyed or damaged, and Subdivider shall replace or have replaced, repair or
have repaired, or pay to the owner the entire cost of replacement or repairs, of any and all property
damaged Or destroyed by reason of any work done hereunder, whether such property be owned by
the United States or any agency thereof, by the State of California, or any agency or political
subdivision thereof, or by any combination of such owners. Any such repair or replacement shall be
to the satisfaction, and subject to the approval of the City Engineer or the corporation, person or
agency.
6. Utility Deposits - Statement
Subdivider shall file with the City Clerk, on or before awritten
statement signed by Subdivider, and each public utility corPoration involved, to the effect that
Subdivider has made all deposits legally required by such public utility corPoration for the
connection or'any and all public utilities to be supplied by such public utility corporation within the
subdivision.
7. Permits, Compliance with Law
Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses
for the construction of such improvements, give all necessary notices and pay all fees and taxes
required by law.
8. Superintendence by Subdivider
Subdivider shall give personal superintendence to the work on the improvements, or
have a construction contractor, competent foreman or superintendent, satisfactory to the City
Engineer, on the work site at all times during construction, with authority to act for Subdivider.
9. Inspection by City
Subdivider shall at all times maintain proper facilities, and provide safe access for
inspection by City, to all parts of the work and to the shops wherein tho work is in preparation.
10. Contract Security
(a) Concurrently with the execution hereof, Subdivider shall furnish: (1) a surety bond
in an amount equal to at least one hundred percent (100%) of the estimated cost of the construction
and completion of the works and improvements described in Exhibit"A," as security for the faithful
performance of this Agreement; and (2) a separate surety bond in an amount equal to at least one
hundred percent (100%) of the estimated cost of the construction and completion of the work and
improvements described in Exhibit AA" as security for the payment of all persons performing labor
and providing materials in connection with this Agreement. Subdivider shall require all
subcontraciors to file a labor and materials corporate surety bond as security for payment of all
persons furnishing labor and materials in connection with this Agreement
(b) The Subdivider may fulfill the requirements of subsection (a) of this section by
providing a Standby Irrevocable Letter of Credit in favor of the City and in a form approved by the
City Attorney.
(c) Subdivider may also file a cash deposit with the City.
11. Hold Harmless Agreement
(a) Subdivider shall hold harmless, indemnify and, at the City's request, defend City,
its officers, employees, agents, boards and commissions, whether elected or appointed, from and
against all claims, demands, actions, causes of action, losses, damages, liabilities, costs and
expenses, including but not limited to reasonable attorney's fees or obligations, for or in connection
with personal injury (including, but not limited to, death) or damage to property (both real and
personal) which arises out of or is in any way connected with the negligent act, error or omission of
Subdivider, its agents, contractors, subcontractors, or employees in connection with the performance
of this Agreement.
(b) In order to make certain that Subdivider has adequate resources to fully carry out
its responsibilities pursuant to subparagraph (a) above, Subdivider shall file with the City proof that
Subdivider's professional consultants (including any soils engineer or civil engineer) employed by
Subdivider in connection with the work described herein, maintain professional liability (e.g. errors
and omissions) insurance during the life of this Agreement. If the work is accomplished by
contractors or subcontractors, Subdivider shall assure that the contractors and/or subcontractors carry
such insurance. The insurance shall be in an amount of not less than Two Million Five Hundred
Thousand DOllars ($2,500,000), shall contain a provision that such insurance shall not be reduced or
canceled except upon thirty (30) days written notice to City and shall be subject t the approval of thc
City Attorney-as to form, amount and carrier.
(c) The foregoing hold harmless statement of Subdivider shall apply to all damages
and claims for damages of every kind suffered or alleged to have been suffered by reason of the
construction operations undertaken pursuant to this Agreement, regardless of whether or not City has
approved the plans or specifications for the improvements, and regardless of whether or not such
insurance policies have been determined to be applicable to any such damages or claims for
damages.
12. Subdivider's Insurance
Subdivider shall not commence work under this Agreement until Subdivider shall
have obtained all insurance required under this paragraph, and such insurance has been approved by
the City Attorney as to form, amount and carder, nor shall Subdivider allow any contractor or
subcontractor to commence work until all similar insurance required of the contractor or
subcontractor shall have been so obtained and approved. All requirements shall appear either in the
body of the insurance policy or in endorsements and shall specifically bind the insurance carrier.
Subcontractor shall take out and maintain during the life of this Agreement the
followingipolicies of insurance:
(a) Worker's Compensation and Employers' Liability Insurance in the statutory
000 55
coverage. In signing this Agreement, Subdivider makes the following certification:
i"I am aware of the provisions of Section 3700 of the California Labor
' Code which requires every employer to be insured against liability for
' Worker's Compensation or to undertake self-insurance in accordance
'with the provisions of the Code, and I will comply with such
provisions before commencing the performance of the work of this
Agreement."
(b) Commercial General Liability Insurance: In an amount not less than FIVE
HUNDRED THOUSAND DOLLARS ($500,000) for injuries including, but not limited to, death to
any one persOn and subject to the same limit for each person, in an amount not less than ONE
MILLION DOLLARS ($1,000,000) combined single limit per occurrence for bodily injury, personal
injury and prOperty damage. :
(c) Automobile Liability (Code 1) Insurance: In an amount not less than FIVE
HUNDRED THOUSAND DOLLARS ($500,000) combined single limit per accident for bodily
injury and prr)perty damage.
(d) Contractual Liability Insurance: Subdivider shall take out and maintain during the
life of this Agreement an insurance policy in the amount of at least ONE MIIJLION DOLLARS
($1,000,000), insuring Subdivider against damages sustained by reason for any action or actions at
law or in equity, and/or any claims or demands by reason of any breach or alleged breach of any
contract, or Iprovisions thereof, or by reason of any contractual liability, or alleged contractual
liability arising out of any contract entered into by Subdivider and/or any of its agents or employees
in order to Perform the work defined herein.
(e) It is agreed that the insurance required by Subsections (b), (c) and (d) shall be in
an aggregate amount of not less than Two Million Five Hundred Thousand Dollars ($2,500,000) and
shall be extended to include as additional insureds the City of South San Francisco, its elective and
appointive boards, officers, agents, employees and volunteers, with respect to operations performed
by the Subdivider as described herein. Evidence of the insurance described above shall be provided
to City upon execution of this Agreement and shall be subject to approval by the City Attorney as to
form, amount and carrier. The policy of insurance shall also contain a provision indicating that such
insurance Shall not be reduced or canceled except upon thirty (30) days written notice to City. In
addition, the following endorsement shall be made on the policy of insurance:
"Notwithstanding any other provisions in this policy, the insurance
afforded hereunder to the City of South San Francisco shall be
primary as to any other insurance or reinsurance covering or available
to the City of South San Francisco, and such other insurance or
reinsurance shall not be required to contribute to any liability or loss
until and unless the approximate limit of liability afforded hereunder
is exhausted."
13.
Evidence of Insurance
Subdivider shall furnish City concurrently with the execution hereof, satisfactory
evidence of the insurance required and evidence that each carrier is required to give City at least
thirty (30) days' prior notice of the cancellation or reduction in coverage of any policy during the
effective perir>d of this Agreement.
14. Title to Improvements
Title to, and ownership of, all improvements constructed hereunder by Subdivider
shall vest absolutely in City, or to such other public a~encies, persons, partnerships,..associations or
corporationsi' to which dedications of easements were made or resetwed upon the completion and
acceptance of such improvements by City or the agency, person, partnership, association or
corporation.
15. ' Repair or Reconstruction of Defective Work
If, within a period of one year after final acceptance of the work performed under this
Agreement,,'any structure or part of any structure furnished and/or installed or constructed, or caused
to be installed or constructed by Subdivider, or any of the work done under this Agreement, fails to
fulfill any of the requirements of tiffs Agreement or the specifications referred to herein, or proves to
be defective or become damaged because of differential settlement, action of the elements, or
ordinary usage, except for catastrophic events, Subdivider shall without delay and without any cost
to City repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the
work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or
should the exigencies of the case require repairs or replacements to be made before Subdivider can
be notifiedi City may, at its option, make the necessary repairs or replacements or perform the
necessary Work, and Subdivider shall pay to City the actual cost of such repair plus fifteen (15%)
percent. SUbdivider shall at the time of acceptance of the improvements by City or other public
agency with City a corporate surety bond in the principal sum of
~ ($ ) dollars to secure the undertaking and obligations
set forth in this provision.
16: Subdivider not Agent of City
Neither Subdivider nor any of Subdivider's agents or contractors are or shall be
considered to be agents of City in connection with the performance of Subdivider's obligations under
this Agreement.
17. Cost of Engineering and Inspection
~ Subdivider shall pay City the actual cost to City for all inspection and other services
furnished by City in connection with the construction of the above-required improvements, plus
twenty-two percent thereof for administrative overhead. City shall furnish periodic statements of all
charges for services performed by City, and Subdivider shall complete payment of such charges
within ten (10) days after receipt thereof.
18. Notice of Breach and Default
If Subdivider refuses or fails to obtain prosecution of the work, or any severable part
thereof, with*uch diligence as will insure its completion within the time specified, or any extensions
thereof, or fails to obtain completion of the work within such time, or if the Subdivider should be
adjudged a bankrupt, or Subdivider should make a general assignment for the benefit of Subdivider' s
creditors, orj if a receiver should be appointed in the event of Subdivider's insglvency, or if
Subdivider or any of Subdivider's contractors, subcontractors, agents or employees should violate
any of the provisions of the Agreement, the City Engineer or City Manager may serve written notice
upon SubdiVider and Subdivider's sureties of breach of this Agreement, or of any portion thereof,
and default Of Subdivider.
19. Breach of Agreement; Performance by Sureties or City
~ In the event of such notice, Subdivider's sureties shall have the duty to take over the
work and complete the work and the improvement herein specified; provided, however, hat if the
sureties, wifffin five (5) days after the serving upon it of such notice of breach, does not give City
written notice of its intention to take over the performance of the Agreement, and does not
commence performance thereof within five (5) days after notice to the City of such election, City
may take over the work and prosecute the same to completion, by contract orby any other method
City may deem advisable, for the account and at the expense of Subdivider, and Subdivider's sureties
shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event,
City, withogt liability for so doing, may take possession of, and utilize in completing the work, such
materials, appliances, plant and other property belonging to Subdivider as may be on site of the work
and necessary therefor.
20. Erosion Control
If applicable, Subdivider shall furnish landscape plans and adequately provide for
erosion control. Landscaping and irrigation improvements shall be installed to the satisfaction of the
City's Landscape Architect.
21 i Trenching and Backfilling
Subdivider shall require that all trenching and backfilling xvithin and outside
property lines for utility lines, including sanitary, storm, water and any other purposes, shall be done
under the inspection ora soils en§ineer who shall test thc trenching and backfilling with a sufficient
number of soil! tests to secure the proper compaction. Subdivider shall further require that a
certificate be filed with thc City statin§ that said trenchin§ and backfilling has been performed in
accordance with the soils engineer's recommendations.
22. ~W'ater Lines
iSubdivider shall dedicate to the California Water Service Company the easements
required for the water lines, facilities and appurtenant works, unless the lines, facilities and
appurtenant works are to be installed within fights-of-way dedicated to the City. Subdivider shall
construct and install, at its cost and expense, the improvements in the easements as set forth on the
"Plans" shown in Exhibit "A," subject to the approval of the Company or District.
23. Notices
All notices herein required shall be in Writing, and delivered in person or sent by
certified mail; postage prepaid. Notices required to be given to City shall be addressed as follows:
City Clerk
City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
Notices required to be given to Subdivider shall be addressed as follows:
Notices required to be given to sureties of Subdivider shall be addressed as follows:
Any party may change such address by notice in writing to the other party and thereafter notices
shall be add ressed and transmitted to the new address.
24. As-Built Drawings
Subdivider shall furnish City reproducible plastic film as-built drawings of the public
improvements of a quality acceptable to the City Engineer together with a certification by
Subdivider!s engineer that the improvements have been constructed in accordance with the approved
plans and specifications. Subdivider shall furnish City with the as-built drawings concurrently with
· SubdivideFs request for acceptance of the improvements by the City.
25. Parties Obligated
Subdivider agrees that this Agreement shall bind Subdivider and Subdivider's
successors in!interest, heirs and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed.
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By:
City Manager
DEVELOPER:
By:
_ATTEST:'
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
J:\WPD~tnrsiw\4OS\001\FORM S\SUBDIVID_improvement_agTeement.doc
Restated
Exhibit "H"
and/t~nended Development Agreement For Remaining Parcels of
Phase II and Phase III:
Owner Obligations
CO0 ~ '
Restated and Amended Development Agreement For Remaining Parcels Of
Phase I1 And Phase III:
Owner Obligations
In consideratio!n of the entitlements conferred upon Owner, Owner has agreed to provide certain
public facilities and improvements. In order to maintain consistency 'with the General Plan and
Owner's Specific Plan, and to clarify the obligations set forth in the Specific Plan, the Parties
agree to implement those obligations according to the terms and conditions set forth below.
A. Off-Site Below Market Rate (BMR) Housin~ Units (the "BMR units"): In accordance
with the Final Terrabay Specific Plan, Owner shall provide at Owner's sole cost .and expense,
thirty-two ~[ (32) rental or owner occupied housing units within the City of South San
Francisco at below market rate. Said units shall be provided in accordance with the
following:
1. The BMR units provided pursuant to this Agreement shall be affordable to families of
moderate income.
2. Eligibility for each BMR Unit shall be determined according to the State of
California, Business, Transportation and Housing A[enc¥-Department of Housing
and Community Development: Division of Housin~ Policy departments' income
limits for San Mateo County for each year in which each BMR Unit is placed on the
market.
3. OWner shall be required to undertake all actions necessary to provide the BMR. Units,
in!cluding, without limitation, acquiring a site (or sites) on which to construct or
r6habilitate the BMR Units. Owner shall comply with the following schedule for
acquisition and construction of the BMR units:
(b)
Owner shall have contracted for the acquisition of a site or sites suitable for
construction of the B1V~ Units prior to receiving a Certificate of Occupancy for
the office building within the Commercial Component of the Project.
Oxvner shall close escrow, if escrow is required, on the above sites within 30 days
of obtaining a Certificate of Occupancy for the office building;
Restated and Amended Development Agreement
Terrabay Remaining Parcels o[ Phase II and Phase 1II
Exhibit H - Final as of Nov. 29, 2000
Rev. 1.3.2
Owner shall submit all plans for the construction or rehabilitation of the above
units within 60 days of the close of escrow;
Owner shall apply for building permits for the BMR units within 30 days of City
approval of said plans;
(e) Owner shall complete construction of the BMR units, or complete rehabilitation
Of the BMR units, whichever is required, sufficient to receive a Certificate of
Occupancy for the units, within twelve (12) months of receiving building permits
for said construction or. rehabilitation.
ThelBMR Units may be parked at one space per BMR Unit, provided that the sites of
the BMR Units are located within close proximity to public transportation.
5. In the event Owner chooses to sell the BMR Units, the units shall be subject to a
resale restriction limiting resale of the BMR Units to families of moderate income (as
dete~rmined in A.2 above). Owner may implement the resale restriction through
covenants, conditions and restrictions ("CC&R's") covering all of the BMR Units or
through use of individual deed restrictions. All CC&R's and deed restrictions shall
be ~ubject to review and approval as to form by the City Attorney prior to issuance of
bui!ding permits for the BMR Units. , '
B. Remaining Prog}osed Residential Units: Owner proposes to construct the Condominium
Component and related parking facilities in accordance with the provisions of the Final
Terrabay Specific Plan. The Parties have agreed to cooperate in good faith in order to
complete Construction of the Condominium Component in a timely manner to facilitate
acquisition of the units by employees of the Commercial Component office building.
Pursuant !o the foregoing, Owner agrees to undertake good faith efforts t° construct the
Condominium Component at or before the same time Owner receives the Certificate of
OccupancY for the office building within the Commercial Component. Construction of the
Condominium shall occur pursuant to the ten-ns set forth below:
1. OWner shall endeavor to commence construction of the Condominium Component
prior to receipt of a Certificate of Occupancy for the Commercial Component.
2. IfiOwner does not obtain a building and/or foundation permit for the condominium
building and complete pouting of the foundation within the time set forth in 1.
irfimediately above, Owner shall pay the City five million dollars ($5,000,000) for
potential use by the City to provide affordable housing within the City of South San
Francisco. For purposes of this section, Owner shall pay the five million dollars
immediately upon receiving a Certificate of Occupancy for the Commercial
Cbmponent.
3. IA Owner makes the payment required in 2. immediately above, City will deposit and
retain the five million dollars ($5,000,000) in an interest bearing account in City's
4. If Owner commences construction of lhe Condominium Component within sixteen
(!6) months after the Certificate of Occupancy for the Commercial Component is
i~sued, City will return to Owner the five million dollars ($5,000,000) held in the
~ccount referenced in 3. immediately above with all accrued interest. If Owner fails
Restated and Amended Development Agreement
Terrabay Rem]am,ng Parcels of Phase II and Phase III
Exhibit H - Final as of Nov. 29. 2000
Rev. 1.3.2
to ¢ommence construction at such time, then the City shall be entitled to keep such
five million dollars ($5,000,000), plus any interest accrued thereon.
5. If Owner fails to commence construction of the Condominium Component before th,
exi~iration of this Restated Agreement, Owner must dedicate to the City that portioa
of[he Property on which the Condominium Component was to be constructed and
mu~st re-vegetate such portion of the Property such that it is in the same condition as it
wag on the effective date of this Restated Agreement.
C. Marketing Plan: Pursu.,a~t to the Final Terrabay Specific Plan and Transportation Demand
Management Program (TDM Program") contained therein, the Parties agree that the
residentia]~ units on the Property shall be marketed such that the units are targeted for
occupancY, by employees of the commercial building, employees of businesses located within
the East 6f 101 Plan Area and employees of businesses and governmental entities located
with the Gity of South San Francisco.
Subject tO compliance with all applicable federal, state and local fair housing laws, Owner
will market the units comprising the Residential Component, the Condominium Component
and the BMR Units in a manner consistent with a comprehensive marketing plan.
1. The Marketing Plan ("MI:"') shall be submitted at the time of' Precise Plan review and
shall contain the requirements, if any, of the City deemed necessary to effectively
market the residential units to the target groups in accordance with the Final Terrabay
Sl~ecific Plan and the TDM Program. The target group is defined as:
(a) Employees of the tenant/tenants of the Commercial Component, if' any; and,
(b) Employees of businesses located east of the "101 Plan Area"; and,
(i) Employees of businesses and government entities located within the City of South
i' San Francisco, including school district and City employees.
2. Owner has agreed that the MP shall include, at a minimum, the following
~omponents:
(ia) A comprehensive strategy for targeting the identified groups;
lb) A strategy for market component pricing, to the extent feasible, such that the units
~ are affordable to employees of the commercial tenant;
ic) A right of first offer for the target groups and a discreet period of' time during
i which the offer must remain open;
!d) Commencement of marketing at a time sufficient to ensure the target group has
j had an opportunity to review the offer and receive approval for financing.
Reslated and !Amended Development Agreement
Terrabay Re~aining Parcels of Phase II and Phase I11 ~0g~r)3 o~'.~ ~'
Exhibit H - Final as of Nov. 29.2000
Rev. 1.3.2
3. Th~ final marketing plan will be submitted to the City at the time of Precise Platt
rev ew and shall be subject to review and approval by the City.
4. OnCe marketing of the Residential Component and of the Condominium Component
begins, Owner shall be required to submit to City a monthly report of its activities
un,er the MP and demonstrate conformance with the requirements of the MP.
D. On-Site (2hild Care Facility: To assist in reducing the amount of vehicular traffic in the
Commerclal Component and in an effort to contribute to the supply of child care facilities
within th~ City, Owner agrees to provide sufficient space within the office building in the
Commerclal Component to accommodate a 100 child child-care facility. Said facility shall
conform in all respects with Federal, State and Local laws and regulations governing such
i including but not limited to, minimum staffing requirements, minimum space
facilities, ~
requirements, and minimum recreational opportunities.
1. OCmer shall be responsible for selecting and contracting with a provider to operate
and manage the facility.
2. O¢~ner shall ensure that the provider selected is able to provide care at times
sgfficient to accommodate actual demand from the users of the Commercial
Component.
3. The child-care facility must be licensed and open for business upon the initial
o~cupancy of the Commercial Component and shall remain open for business so long
aS a tenant occupies the commercial building.
E. Perfornlin~ Arts Center: Owner has agreed to build a Performing Arts Center ("Center")
located Within the Commercial Component. The Center shall be constructed consistent with
the requirements identified in the Final Terrabay Specific Plan and in accordance with City
approved plans and specifications. Owner shall allow use of the facility as follows:
1. The Center shall be available for the exclusive use of South San Francisco groups
defined as:
a) South San Francisco performing arts groups for both performances and rehearsals;
{b) South San Francisco based non-profit organizations or otherwise public spirited
groups whose purposes are the enhancement or support of the performing arts;
and,
Restated and
Terrabay
Exhibit H -
Rev. 1.3.2
!(c)
(d)
Amended Development Agreement
naining Parcels of Phase II and Phase III
:inal as of Nov. 29, 2000
The City for activities related to enhancing suPport for performing arts within the
City.
Performances of other groups that contract to perform in the City at the City's
request.
000 6
o
Page 4 of 7
5
2. Access to the office building within the Commercial Component shall be such that no
access will be available from the Center to the interior of such office building after
business hours unless otherwise permitted by Owner.
3. City shall not be required to pay Owner for the use of the Center as provided in (I)
abo'~e for a period of ninety-nine (99) years, but may be required to reimburse Owner
for :ertain expenses as identified in the written operating agreement to be entered into
by Lnd between the Parties at or before the time of Precise Plan review ("Operating
Ag: .:ement").
4. The Operating Agreement shall address, at a minimum, hours of operation,
maintenance obligations of the parties, allocation of monthly utility expenses and
oth~:r terms as needed. Hours of Operation shall be such that the facility is available to
the :ommercial tenant as a meeting facility during normal business hours and may be
modified to accommodate the needs of the City or commercial tenant as
circ~umstances require.
Identity alnd Art Pro,tram: In accordance with the Final Terrabay Specific Plan, City and
Owner ha~e committed to implement an Art Program for the Project, in addition to interior
lobby art. I The Parties will cooperate to ensure the Identity and Art Program is consistent
with the Final Terrabay Specific Plan and provides an aesthetic enhancement to the
architectu3al design of the Project. Specific drawings and details of the art Will be provided
at the time of Precise Plan review for the Commercial Component; however, the Panics
agree that the Art Program will contain, at a minimum, the following:
1. A monument sign to mark the main entry to the office complex that will feature a
graphic design that enhances the identity of the development;
2. Planting and landscaping of the median at the main entry of the office complex;
3. An artistic sculpture or similar structure at or near the point of San Bruno
Mountain that will be visible from Sister Cities and Bayshore Boulevard.
G. Transpolrtation Demand Management Proeram ("TDM Pro~ram"): Owner shall
implemefit, monitor and enforce the TDM Program identified in the Final Terrabay Specific
Plan. Tt~e TDM Program requires, at a minimum, the following:
1. Daily PM peak two-way trip generation from the Commercial Component shall
not exceed 565 trips; and,
2. Owner shall pay the City $15,000 per year, adjusted for inflation, commencing in
the year in which the first tenant of the Commercial Component takes occupancy,
to reimburse the City's costs in monitoring the effectiveness of the TDM
Program, which sum shall be payable within thirty (30) days after the
commencement thereof and each anniversary thereafter; and,
~mended Developrnent Agreement a~e~ ~ r~
~ining Parcels of Phase II and Phase III P 7 (~ ~)
hal as of Nov. 29, 2000
Restated and !
Terrabay Rem
Exhibit H - Fi
Rev. 1.3.2
o
H. Restorat!
Restated and ~mended Development A~eement
Terrabay Remaining Parcels of Phase II and Phase III
Exhibit H - Final as of Nov. 29, 2000
Rev. 1.3.2
Monitoring shall occur annually throughout the life of the Project; and,
If the results of the annual monitoring report indicate that the required trip
reduction has not been met, the Owner shall be issued a. warning by the City for
the first year of non-compliance. Monitoring of the program's effectiveness shall
occur the subsequent year and each year thereafter. If the required trip reduction
remains unmet, the Owner shall be fined $15,000 for each percentage point that
the trips have not been reduced. The TDM Program shall be revised again and
monitored again the following year. In the event results continue to fall short of
the TDM Program objectives, the same fine shall apply. Owner shall be entitled
to evaluate any and all of the reports of the effectiveness of the TDM program,
and, in addition to any other available remedies, shall have the right to raise any
objections to the findings in such reports to the City Council prior to the
imposition of any fine; and,
Owner shall be liable for all costs incurred by the City in collecting the fines
assessed and found to be owed. Said costs shall include the costs of litigation and
all reasonable attorneys fees associated with collection of the fine.
on of Land: Owner shall fund and implement a land restoration program for the
Recreatirln Parcel (formerly Commons West Parcel) and the Preservation Parcel. The land
restoraticn program requires the following:
1. Subject to compliance with the terms of the Settlement Agreement executed by
the City, San Bruno Mountain Watch, The Center for Biological Diversity, and
Myers Development Company, the program shall be modeled after the restoration
efforts conducted in luncus Ravine and shall include the removal of invasive
exotic plant materials (such as fennel, ivy, pampas grass); and,
2. The program shall be considered complete when the plant material is eliminated
from the parcels; and,
3. The program shall be reviewed and approved by the City and the San Bruno
Mountain Plan Administrator.
Recreation Facilities: Owner intends to secure an organization to operate a recreational
facility in that parcel formerly known as "Commons West." In the event Owner is unable to
secure ah organization acceptable to the City to operate said facility, Owner shall dedicate
the Con~rnons property to the City or, at the sole discretion of the City, to the San Mateo
County Department of Parks and Recreation for inclusion in the San Bruno Mountain park.
Owner lhall have two years from the date City Council approves the Final Terrabay Specific
Plan to Secure said organization or effect the dedication.
Other Terms and Conditions: The Parties shall negotiate in good faith to identify and
memorilalize, by separate agreement(s), specific implementation details of the above
referen6ed~ obligations. Said agreements shall be submitted during Precise Plan reviexv
and
000
~, ·
Page 6 of 7
subject to he terms and conditions contained therein. Said details shall be consistent with the
obligation:, identified above. City agrees to cooperate with Owner to review and process all
submittals from Owner relating to the Project contemplated in the Final Terrabay Specific
Plan by timely reviewing and processing such submittals in accordance with all applicable
laws and regulations governing the City's processing of such gubmittals.
J \WPD~Marsw\-~05\035kAGREEX, PHASE3\I _tbay_exl'fibitH_Nov29_final.doc
Restated and ~kmended De~,'elopment Agreement
Terrabay Ren~aining Parcels of Phase II and Phase III
Exhibit H - Final as of Nov. 29, 2000
Rev. 1.3.2 '
Exhibit "I"
Restatea and A mended Develo~wnent ~4greement For Remaining Parcels of
Phase II and Phase III:
Improvement Responsibilities
'To Be Determined and Approved at Precise Plan review)
000
Restated
405/03$/agrc~
Exhibit "J"
and Amended Development Agreement For Remaining Parcels of
Phase II and Phase III:
YMCA Letter
,2titlcs
~FEItS D£VEL0?~r ~_
MYERS DEVELOPMENT COMPANY
Octobe.~ 24,
Ms. Lisl Cb~
THE PENIN
Branch of ih
18/7 South
San Mat~,
Dcex Lisa:
Dm-lng the
YMCA
South
~ 000
:ULA YMCA
YMCA of San Pranci~co
3r~t Street
3alifor~_ i a 94402
CA And The ~'errabay Development
~ast six months, Myc/s Devdopm~nt C~npany ('~MDC") and ~c
~ ~s~s~ ~ pot~ ofjp~tly d~clop~ a 10~Id ~y c~e f~i~w
~d ~CA f~HW ou pmp~ ~at w~ c~tly o~ ~ ~ Ci~ of
~r~s~ (~ '~abay ~~. F~ ~ p~os~s of ~~g o~
discusdonS, we have joimly agrc~ to p~suc on a sUictly non-bi~a~S basq. s, the
following: ,
1. W! thi~ om: proposed 665,000 GSF offic~ projoct on th~ e~-~ slope of Salt
Br mo Mountain, we have proposed co estate a 9,000 GSF area st grade l~vd in
ad thlon to an e~ljacent outdoor, opm spane to complc-m~t the indoor area.
T¢,g~, these £~illtie~ are ~ufficic'at in progra.m ar~a for a 100-child day care
2. MDC will be re-~ponsibl~ for buildi~ the corn and shell ap~ce _,nd will provide
a~ua~e utiliti~ (water, powe. r, sanitary sower, l~, me ~ri~kler, HVAC,
.t¢lcphonc) ~tubbod to the o,u~lde pcrimet~ wall(s) o£the area and read~ to
c~nnectcd with the YMCA s iniernal improvemcms.
3. ~iDC will lease thc space to the YMCA for one dolla~ per year for a
M.~kcUatC to amortize tb~ YMCA's improvements and tach longer t~m e~ the
A and MDC may agree upon th.c sm-ne financial arrangement. Thc YMCA
bo',yemen', be responsibl~ for paying for its allocablo sl'uu'e of Common Area
a~t~x~c.~ on a monthly basis,
www. my~r~lcvclo pmcm.com .
415 777 ~1
Both
discussio~
-ofboth_p~
THE PENINSULA. "k'lvICA
Bom'd of Dircctors
000