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HomeMy WebLinkAboutOrd. 1403-2009ORDINANCE NO. 1403-2009 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO STATE OF CALIFORNIA AN ORDINANCE ADOPTING A DEVELOPMENT AGREEMENT WITH ARE-SAN FRANCISCO NO. 21, L.P., AND ARE-SAN FRANCISCO NO. 42, LLC FOR A NINE-STORY OFFICE/RESEARCH & DEVELOPMENT BUILDING, FIVE- LEVEL PARKING GARAGE, SURFACE PARKING AND RELATED IMPROVEMENTS, ON AN APPROXIMATELY 7.027- ACRE SITE LOCATED AT 213-217 EAST GRAND AVENUE WHEREAS, ARE-SAN FRANCISCO NO. 21, L.P., and ARE-SAN FRANCISCO NO.42, LLC ("Applicant") proposes demolition of four existing one- and two-story buildings on the site, and construction of a single nine-story office/R&D building totaling approximately 291,634 square feet, a five-level parking garage containing 616 spaces and an additiona1210-space surface parking lot, and related improvements ("Project") subject to the terms of the Development Agreement ("Agreement"); and, WHEREAS, the Applicant has requested approval of a Development Agreement which would clarify and obligate several project features and mitigation measures including public art, rails-to-trails improvements, and mitigation fees for traffic impacts; and WHEREAS, an Environmental Impact Report (EIR) has been prepared which evaluates the significant and. potentially significant impacts of the development, the growth inducing impacts of the development, the cumulative impacts of the development, and alternatives to the proposed Project; and, WHEREAS, for that impact identified in the EIR as significant and unavoidable, a Statement of Overriding Considerations has been prepared, indicating that the benefits of the Project outweigh the significant unavoidable effect; <~nd, WHEREAS, an earlier Statement of Overriding Considerations approved by the City Council for the update t~ the City's General Plan would also apply to the subject property; and, WHEREAS, pursuant to Municipal Code section 19.60.050, the Director of Economic and Community Development reviewed the application for the Agreement and found the proposed Agreement to be in the proper form, determined that the application was complete, and referred the application and Agreement to the Planning Commission for a public hearing; and, WHEREAS, following a properly noticed public hearing held on October 16, 2008, the Planning Commission recommended that the City Council approve the Agreement; and, WHEREAS, on November 12, 2008, pursuant to Municipal Code section 19.060.110 the City Council conducted a properly noticed public Bearing on the proposed Agreement for the Project. NOW THEREFORE, the City Council of the City of South San Francisco does hereby ORDAIN as follows: SECTION 1. FINDINGS. A. The proposed Development Agreement for the Project is consistent with the obj ectives, policies, general land uses and programs specified in the General Plan, as amended and adopted. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of these documents. The Project provides for anine-story building totaling approximately 291,634 square feet., afive-level parking garage, surface parking, and related improvements, as part of an office and research and development complex in the Planned Industrial (P-I) Zoning District. The proposed project complies with all zoning, subdivision and building regulations and with the objectives, policies, general land uses and programs specified in the General Plan. B. The City Council has independently reviewed the proposed Development Agreement, the certified and adopted Housing Element, the General Plan, Chapters 20.78 and 20.84 of the Zoning Ordinance, Title 15 of the Municipal Code, and applicable state and federal law and has determined that the proposed Development Agreement for the Proj ect complies with all applicable zoning, subdivision, and building regulations and with the General Plan. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of these documents, oral and ~~vritten evidence submitted at the public hearings on the Project, including advice and recommendations from City staff. C. The proposed Development Agreement for the Project states its specific duration. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Development Agreement and its determination that Section 2 of the Agreement states that the Agreement shall expire ten years from the effective date of the Agreement, which shall be concurrent with the adoption of the instant ordinance. D. The proposed Development Agreement incorporates the permitted uses, density and intensity of use for the property subject thereto as reflected in the approved Conditional Use Permit UP07-0017 by reference. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Development Agreement and its determination that Section 3 of the Agreement set forth the development standards and the documents constituting the Project. E. The proposed Development Agreement states the maximum permitted height and size of proposed buildings on the property subj ect thereto. This finding is based upon all evidence in the record as a whole, including, but not limited to: the City Council's independent review of the proposed Development Agreement and its determination that Section 3 of the Agreement sets forth the documents which state the maximum permitted height and size of buildings. SECTION 2. APPROVAL OF DEVELOPMENT AGREEMENT. The City Council of the City of South. San Francisco hereby approves the proposed Development Agreement with ARE-SAN FRANCISCO N0.21, L.P., and ARE-SAN FRANCISCO NO. 42, LLC, attached hereto as Exhibit A and incorporated herein. by reference. SECTION 3. SEVERABILITY. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of South San Francisco hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be hel.~ unconstitutional, invalid, or unenforceable. SECTION 4. PUBLICATION AND EFFECTIVE DATE. Pursuant to the provisions of Government Code Section 36933, a summary of this Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the Summar}~, and (2) post in the City Clerk's Office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk's Office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This ordinance shall become effective thirty days from and after its adoption. Introduced and adopted at a regular meeting of the City Council of the City of South San Francisco, held the 10th day of December, 2008. Adopted as an Ordinance of the City of South Francisco at a regular meeting of the City Council held the 14th day of January, 2009 by the following vote: AYES: Councilmembers Pedro Gonzalez, Richard A Garbarino, and Kevin Mullin, Vice Mayor Mark Addiego and Mayor Karyl Matsumoto NOES: None ABSTAIN: N ABSENT: ATTEST: Cl As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this 14th day of January, 2009. 1 Matsumoto, Mayor Exhibit A ~>evelopment Agreement DEVELOPMENT AGREEMENT 213 East Grand Avenue Office /Research and Development Project This DEVELOPMENT AGREEMENT FOR THE 213 EAST GRAND AVE Og OFFICE /RESEARCH AND DEVELOPMENT PROJECT is dated - ("Agreement"), between (i) ARE-SAN ~~ FRANCISCO NO. 21, L.P., a California limited partnership ("Primary Property_Owner ), and ARE-SAN FRANCISCO NO. 42, LLC, a Delaware limited liability company (Adjacent Propert~Owner ), on the one hand, and (ii) the CITY OF SOUTH SAN FRANCISCO, a municipal corporation organized and existing under the laws of the State of California ("City"), on the other hand. As used in this Agreement, the term "Owner" shall mean Primary Property Owner and/or Adjacent Property Owner, as applicable. Further, Owner and the City are collectively referred to herein as "Parties." RECITALS A. WHEREAS, California Government Code ("Government Code") Sections 65864 through 65869.5 authorize the City t:o enter into binding development agreements with persons having legal or equitable interests in real property for the development of such propert~ or on behalf of those persons having same; and, B. 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 ("Municipal Code"), establishing procedures and requirements for adoption and execution of development agreements; and, C. WHEREAS, this Agreement concerns property (the "Pro ert ") consisting of the following: 1. a 6.695-acre site located at the northeast corner of East Grand Avenue and Forbes Boulevard, as shown and more particularly described in Exhibit A-1 attached hereto and incorporated herein by reference (the Primary Property"); and 2. a 0.332-acre site, adjacent to the Primary Property, located at the northwest corner of East Grand Avenue and Roebling Road, as shown and more particularly described in Exhibit A-2 attached hereto and incorporated herein by reference (the "Adjacent Property"); and, D. WHEREAS, ARE-San Francisco No. 21, L.P., has a legal rancigsco Noe 42t LLC,lhasha Primary Property subject to this Agreement, and ARE San F legal or equitable interest iri the Adjacent Property subject to this Agreement; and, E. WHEREAS, Owner has submitted a development proposal to the City that would permit the development of the Property as depicted on the 213 East Grand Avenue -Planning Application dated September, 2008, prepared by Dowler-Gruman Architects (the "Plan Page 1 of 23 October 10, 2008 213 E. Grand Ave. Development Agt. Set") (a copy of such Plan Set is attached hereto as Exhibit B and incorporated herein by reference); and, F. WHEREAS, Owner has requested that the City enter into this Agreement to set forth the rights and obligations of the 1?arties relating to the development of the Property; and, G. WHEREAS, all proceedings necessary for the valid adoption and execution of this Agreement have taken place in accordance with Government Code Sections 65864 through 65869.5, the California Environmental Quality Act ("CE A"), and Chapter 19.60 of the Municipal Code; and, H. WHEREAS, the City Council and the Planning Commission have found that this Agreement is consistent with the objectives, policies, general land uses a:~d programs specified in the South San Francisco General Plan as adopted on October 13, 1999 and as amended from time to time; ;and, I. WHEREAS, on 2008, the City Council adopted Ordinance No. approving and adopting this Agreement and the Ordinance thereafter took effect on , 2008. AGREEMENT NOW, THEREFORE, the Parties, pursuant to the authority contained in Government Code Sections 65864 through 65869.5 and Chapter 19.60 of the Municipal Code and in consideration of the mutual covenants and agreements contained herein, agree as follows: Effective Date Pursuant to Section 19.060.140 of the Municipal Code, notwithstanding the fact that the City Council adopts an ordinance approving this Agreement, this Agreement shall be effective and shall only create obligations for the Parties from and after the date that the ordinance approving this Agreement takes effect ("Effective Date"). 2. Duration This Agreement shall expire ten (10) years from the Effective Date, but in no event later than December 31, 2018. :[f litigation against the Owner (or any of its officers, agents, employees, contractors, representatives or consultants) to which the City also is a party should delay implementatic-n or construction on the Property of the "Pro'ect" (as defined in Section 3 below), the expiration date of this Agreement shall be extended for a period equal to the length of time. 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 for which the expiration date shall be extended as a result of such litigation shall not exceed five (5) years. Page 2 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 3. Project Description; Development Standards For Project The project to be developed on the Property pursuant to this Agreement (the "Project") shall consist of (i) one (1) office /research and development building, with nine (9) floors, containing approximately 291,634 square feet, including a two (2) level ancillary tenant amenity space containing up to 8,495 square feet, (ii) a five (5) level parking garage that will accommodate six hundred sixteen (616) parking spaces, (iii) surface parking that will accommodate up to two hundred ten (210) parking spaces, and (iv) related improvements, all as provided in the Plan Set and as approved by the City Council. (a) The permitted uses, the density and intensity of uses, the maximum heights, locations and total area of the proposed buildings, the development schedule, the provisions for vehicular access and parking, any reservation or dedication of land, any public improvements, facilities and services, and all environmental impact mitigation measures imposed as approval conditions for the Project shall be exclusively those provided in the Plan Set, any Use Permit (and any addenda thereto in effect as of the Effective Date), the Development Plan, the Environmental Impact Report or Mitigated Negative Declaration (and any addenda thereto in effect as of the Effective Date), this Agreement (as approved by the City Council), and the applicable ordinances in effect as of the Effective Date (including, but; not limited to, the applicable provisions of the Municipal Code in effect as of the Effective Date), except as modified in this Agreement. (b) Subject to Owner's :fulfillment of its obligations under this Agreement, upon the Effective Date of this Agreement, the City hereby grants to Owner a vested right to develop and construct on the Property all the improvements for the Project authorized by, and in accordance with, the terms of this Agreement, the Plan Set (as approved by the City Council) and the applicable ordinances in effect as of the Effective Date. (c) Upon such grant of right, no future amendments to the City General Plan, the City Zoning Code, the Municipal Code, or other City ordinances, policies or regulations in effect as of the Effective Date shall apply to the Project, except such future modifications that are not in conflict with and do not prevent tbP development proposed in the Plan Set (as approved by the City Council); provided, however, that nothing in this Agreement shall prevent or preclude the City from adopting any land use regulations or amendments expressly permitted herein or otherwise required by State or Federal Law. (d) The Use Permit granted by the City shall not require an extension during the term of this Agreement provided Owner is not in material breach of the terms of this Agreement or the Conditions of Approval for said Use Permit. (e) Owner shall cause the Project to be submitted for certification pursuant to the Leadership in Energy and Environmental Design (LEED) Green Building Rating System of the U.S. Green Building Council. Owner shall use good faith efforts to Page 3 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 achieve a "Silver" rating for the Project; provided, however, that Owner shall not be in default under this Agreement if, notwithstanding Owner's good faith efforts, the Project does not receive a "Silver" (or higher) rating. (~ Adjacent Property Owner holds a contractual right to acquire fee title to the Adjacent Property. Adjacent Property Owner shall use commercially reasonable efforts to complete its acquisition of fee title to the Adjacent Property; providea, however, that Adjacent Property Owner may elect not to acquire fee title to the Adjacent Property if Adjacent Property Owner reasonably determines that (i) a material condition to .Adjacent Property Owner's contractual obligation to acquire such fee title has not been satisfied, and (ii) such unsatisfied condition would materially and adversely affect Adjacent Property Owner's ability to develop the Adjacent Property in accordance with the terms of this Agreement. If Adjacent Property Owner elects, in accordance with the foregoing, not to acquire fee title to t'~e Adjacent Property, Adjacent Property Owner shall give the City and Primary Property Owner written notice of such election and, within ninety (90) days after Adjacent Property Owner gives such notice, Primary Property Owner shall submit the following to the City: (x) an application for modification of the Project's Use Permit, consistent with Section 20.91.020 of the Municipal Code; (y) a Development Plan that provides for the development of the Project on the Primary Property only; and (z) revisions, supplements, and/or addenda to the Plan Set that may be necessary to provide for the development of the Project on the Primary Property only. Thereafter, the defined term "Pro ert "shall be deemed to refer only to the Primary Property, the defined term "Owner" shall be deemed to refer only to the Primary Property Owner, and the defined term "Pro' ect" shall be deemed to refer to the project to be developed on the Primary Property only, i^ accordance with the Plan Set and any revisions, supplements, and/or addenda submitted to the City by Primary Property Owner in accordance with clause (z) above. 4. Permits For Project Owner shall submit a Development Plan for development of the Project within sixty (60) days of applying for a grading permit for any phase of the Project. The Development Plan shall address, at a minimum, the landscaping and common improvements required for each phase of the Project. For each phase, the City shall issue building permits and Certificates of Occupancy only after the City has reviewed and approved Owner's applications therefor. City staff review of applications for permits, certificates, approvals or other entitlements shall be limited to determining whether the following conditions are met: (a) The application is complete; and, (b) Owner has complied with the conditions of the City Council's approval of the Project, all applicable Uniform Codes, the Municipal Code, CEQA requirement Page 4 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 (including any required mitigation measures) governing issuance of such permits or certificates, and Federal and State Laws; and, (c) Owner has obtained Design Review approval for the Project, including required approval of landscaping and common improvements; and, (d) All applicable processing, administrative and legal fees have been paid subject to the provisions of this Agreement; and, (e) .For Certificates of Occupancy only, Owner has completed, and the City has approved, the landscaping and common improvements for earlier phases of the Project. 5. Vesting of Approvals Upon the City's approval of the Design Review, Parcel Map, Planned Unit Development, Transportation Demand Management Plan, Use Permit and this Agreement, suc'~_ approvals shall vest in O~~vner and its successors and assigns for the term of this Agreement, provided that the successors and assigns comply with the terms and conditions of all of the foregoing, including, but not limited to, submission of insurance certificates and bonds for the grading of the Property and construction of improvements. 6. Cooperation Between Parties in Implementation of This Agreement It is the Parties' express intent to cooperate with one another and diligently work to implement all land use acid building approvals for development of the Property in accordance with the terms of this Agreement. Accordingly, Owner and the City shall proceed in a reasonable and timely manner, in compliance with the deadlines mandated by applicable agreements, statutes or ordinances, to complete all steps necessary for implementation of this Agreement and development of the Property in accordance with the terms of this Agreement. The City shall proceed in an expeditious manner to complete all actions required for the development of the Project, including, but not limited to, the following: (a) Scheduling all required public hearings by the City Council and City Planning Commission; and (b) Processing and checking all maps, plans, permits, building plans and specifications and other plans relating to development of the Property filed by Owner or its nominee, successor or assign as necessary for development of the Property, and inspecting and providing acceptance of or comments on work by Owner that requires acceptance or approval by the City. Owner, in a timely manner, shall provide the City with all documents, applications, plans and other information necessary for the City to carry out its obligations hereunder and to cause its planners, engineers and all other consultants to submit in a timely manner all necessary materials and documents. Page 5 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 7. Acquisition of Other Propert~,~; Eminent Domain In order to facilitate and insure development of the Project in accordance with the Plan Set and the City Council's approval, the City may assist Owner, at Owner's request and at Owner's sole cost and expense, in acquiring any easements or properties necessary for the satisfaction and completion of any off-site components of the Project required by the City Council to be constructed or obtained by Owner in the Council's approval of the Project and the Plan Set, in the event Owner is unable to acquire such easements or properties or is unable to secure the necessary agreements with the applicable property owners for such easements or properties. (Jwner expressly acknowledges that the City is under no obligation to use its power of Eminent Domain. 8. Maintenance Obligations on Property All of the Property subjectt to this Agreement shall be maintained by Owner or its successors in perpetuity in accordance with City requirements to prevent accumulation of litter and trash, to keep weeds abated, and to provide erosion control, and to comply with other requirements set forth in the Municipal Code, subject to City approval. (a) If Owner subdivides the property or otherwise transfers ownership of a parcel or building in the Project to any person or entity such that the Property is no longer under single ownership, Owner shall first establish an Owner's Association and submit Conditions, Covenants and Restrictions ("CC&Rs") to the City for review and approval by the City Attorney. Said CC&Rs shall satisfy the requirements of Section 19.36.040 of'the Municipal Code. (b) Any provisions of said CC&Rs governing the Project relating to the maintenance obligations under this section shall be enforceable by the City. 9. Fees (a) Owner shall not be responsible for any fees imposed by the City in connection with the development and construction of the Project, except as otherwise set forth in this Agreement, the Use Permit, the Planned Unit Development Permit, and those in existence as of the Effective Date of this Agreement. (b) No fee requirements (except those identified herein) imposed by the City on or after the Effective Date and no changes to existing fee requirements (except those currently subject 1:o periodic adjustments as specified in the adopting or implementing resolutions and ordinances) that occur on or after the Effective Date, shall apply to the Project. (c) Any existing application, processing, administrative, legal and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (i) such fees have general applicability; (ii) the application of such fees to the Property is prospective; and (iii) the application of such fees would not prevent development in accordance with this Agreement. Page 6 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 10. New Taxes Any subsequently enacted City-wide taxes shall apply to the Property, provided that: (i) the application of such taxes to the Property is prospective; and_ (ii) the application of such taxes would not prevent development in accordance with this Agreement. 11. Assessments Nothing herein shall be construed to relieve the Property from common benefit assessments levied against it .and similarly situated properties by the City pursuant to and in accordance with any statutory procedure for the assessment of property to pay for infrastructure and/or services that benefit the Property. 12. Additional Conditions Owner shall comply with all Hof the following requirements: (a) Traffic Impact Fees. Owner shall pay the following Traffic Impact Fees: 1. Otter Point Overpass Fees -Oyster Point Overpass fees shall be determined based on the application of the formula in effect as of the time the City issues the first building permit for the Project, and shall be payable substantially concurrently with, but not later than, the issuance of such building permit. The City and Owner agree that any ancillary tenant amenity spacf; will be treated as "General Office Building" for purposes of calculating the Oyster Point Overpass fees. 2. East of 101 Traffic Impact Fee -East of 101 Traffic Impact fees shall be determined based on the application of the formula in effect as of the time the City issues the first building permit for the Project, and shall be payable substantially concurrently with, but not later than, the issuance of such building permit. The City and Owner agree that any ancillary tenant amenity space will be treated as "Office/R&D" for purposes of calculating the East of 101 Traffic Impact fee. (b) Rails To Trails Improvements. 1. Should the rail corridor abutting the north boundary of the Property, an~'. identified in the General Plan as a future bike path, become available for public use prior to July 31, 2011, the City may elect, at the City's option to be exercised in the City's reasonable discretion, to have Owner either install the improvements described in subsection 12(b)l.i. below for the portion of the corridor that directly abuts the Property or provide the cost estimates and funds described in subsection 12(b~2. below. The City shall give Owner written notice of its election. i. If the City so elects, Owner shall install improvements at its sole cost and expense for the portion of the corridor that directly abuts Page 7 of 23 October 10, 2008 213 E. Grand Ave. Development Agt. the Property. Said improvements shall include, but not be limited to, paving, lighting, and landscaping of a design and scope consistent with standard portions of the City's then existing Bay Trail. ii. Pursuant to Owner's obligation to install said improvements, Owner shall submit plans, including a cost estimate, for the improvements, to the City for review and approval. Owner sha" complete construction of said improvements by the later of (A) the date that is two (2) years after the City gives Owner written notice that the City has elected to have Owner construct said improvements, and (B) December 31, 2013. 2. If the City does not elect to have Owner construct the improvements described in subsection 12(b) l .i. above or the rail corridor abutting the north boundary of the Property does not become available for public use prior to July 31, 2011, then, prior to expiration of the Development Agreement: i. Owner shall (A) provide the City with a cost estimate, subject to the City's review and approval, of the costs that would be required for the improvements described in subsection 12(b)1. above; and (B) provide the City with the funds described in the cost estimate, to be used by the City solely to upgrade substandard portions of the City's then existing Bay Trail. ii. OwnE;r shall provide said cost estimate and funds prior to issuance of a Certificate of Occupancy for the shell of the final building t be constructed as part of the Project, but no later than December 31, 2013. 3. If at any time the City decides to form an assessment district with the objective of acquiring and completing a rails to trails conversion for the rail corridor abutting the north boundary of the Property, Owner agrees not to oppose the formation of such a district. (c) Laltrain Station Enhancement Contribution. Owner shall pay an in-lieu fee to be used for enhancing, enlarging, repairing, restoring, renovating, remodeling, redecorating, and/or refurbishing the Caltrain Station. located at 590 Dubuque Avenue and/or its associated facilities currently planned at the southeast corner of Airport Boulevard and Grand Avenue. The in-lieu fee shall be in the amount of two hundred ninety-one thousand six hundred thirty-four dollars ($291,634.00), and shall be payable in two (2) equal installments. One-half (1/2) of the in-lieu fee shall be payable substantially concurrently with, but not later than, the issuance of the building permit for the shell of the first building to be constructed as part of the Project, and one-half (1/2) of the in-lieu fee shall be payable prior to the issuance of a Certificate of Occupancy for the shell of the final building to be Page 8 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 constructed as part of t:he Project, but no later than December 31, 2013. Payments of the in-lieu fee shall be deposited and held in a separate account by the City. The Parties intend for the entire in-lieu fee to be expended for the Caltrain Station enhancements and/or associated facilities described in this subsection no later than the da~~e that is five (5) years after the date Owner pays the second installment of the in-lieu fee. If any portion of the in-lieu fee has not been expended for such enhancements and/or associated facilities as of such date, the City shall give Owner written notice of the amount of the unused portion and thereafter such unused portion may be expended by the City for any transit or public space improvements or enhancements in the East of 101 Area. (d) Transportation Demand Mana eg_ment. Owner shall prepare an annual Transportation. Demand Management (TDM) report, and submit same to the City, to document the effectiveness of the TDM plan in achieving the goal of thirty-five percent (35%) alternative mode usage by employees within the Project. The TDM report will be prepared by an independent consultant, retained by the City with the approval of Owner (which approval shall not be unreasona'oly withheld or delayed) and paid for by Owner, which consultant will work in concert with Owner's TDM coordinator. The TDM report will include a determination of historical employee commute methods, which information shall be obtained by survey of all employees working in the buildings on the Property. One hundred percent (100%) of all non-responses will be counted as a drive alone trip. 1. TDM Reports.: The initial TDM report for each building on the Property will 'be submitted two (2) years after the granting of a Certificate of Occupancy with respect to the building, and this requirement will apply to all buildings on the Property except the parking facilities. The second and all later reports with respect to each building shall be included in an annual comprehensive TDM report submitted to the City covering all of the buildings on the Property that are submitting their second or later TDM reports. i. Report Requirements: The goal of the TDM program is to encourage alternative mode usage, as defined in Chapter 20.120 of the Municipal Code. The initial TDM report shall either: (A) state that the applicable property has achieved thirty-five percent (35%) alternative mode usage, providing supporting statistics and analysis to establish attainment. of the goal; or (B) state that the applicable property has not achieved the thirty-five percent (35%) alternative mode usage, providing an explanation of how and why the goal has not bf;en reached, and a description of additional measures that will be adopted in the coming year to attain the TDM goal of thirty-five percent (35%) alternative mode usage. ii. Penalty for Non-Compliance: If, after the initial TDM report, subsequent annual reports indicate that, in spite of the changes in the TDM plan, the thirty-five percent (35%) alternative mode Page 9 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 usage i:> still not being achieved, or if Owner fails to submit such a TDM. report at the times described above, the City may assess Owner a penalty in the amount of fifteen thousand dollars ($15,000.00) per year for each full percentage point below the minimum thirty-five percent (35%) alternative mode usage goal. a. In determining whether a financial penalty is appropriate, the City may consider whether Owner has made a good faith effort to meet the TDM goals. b. If the City determines that Owner has made a good faith effort to meet the TDM goals but a penalty is still imposed, and such penalty is imposed within the first three (3) years of the TDM plan (commencing with the first year in which a penalty could be imposed), such penalty sums, in the City's sole discretion, may be used by Owner toward the implementation of the TDM plan instead of being paid to the City. If the penalty is used to implement the TDM Plan, an Implementation Plan shall be reviewed and approved by the City prior to expending any penalty funds. c. Notwithstanding the foregoing, the amount of any penalty shall bear the same relationship to the maximum penalty as the completed construction to which the penalty applies bears to the maximum amount of square feet of Office, Commercial, Retail and Research and Development use permitted to be constructed on the Property. For example, if there is 100,000 square feet of completed construction o^ the Property included within the TDM report with respect to which the penalty is imposed, the penalty would be determined by multiplying fifteen thousand dollars ($15,000.00) times a fraction, the numerator of which is 100,000 square feet and the denominator of which is the maximum amount of square feet of construction permitted on the Property (subtracting the square footage of the parking facilities); this amount would then be multiplied by the number of percentage points below the thirty-five percent (35%) alternative mode usage goal. d. The provisions of this Section are incorporated as Conditions of Approval for the Project and shall be included in the approved TDM for the Project. (e) Mass Decontamination System Contribution. As Owner's "fair share" contribution to the (:ity's emergency preparedness, Owner shall pay an in-lieu fee to be used to fund a portion of the costs of purchasing a mobile, prefabricated mass decontamination system, capable of serving ambulatory and non- Page 10 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 ambulatory, chemically contaminated persons at a rate of not less than two hundred fifty (250) pf;rsons per hour. The in-lieu fee shall be in the amount of thirty thousand dollars ($30,000.00), and shall be payable prior to the issuance of a Certificate of Occupancy for the shell of the final building to be constructed as part of the Project. The in-lieu fee shall be deposited and held in a separate account by the City. 13 . Indemnity Owner agrees to indemnify, defend (with counsel selected by the City subject to the reasonable approval of Owner) and hold harmless the City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by Owner, or any actions or inactions of Owner's contractors, subcontractors, agents, or employees in cormection with the construction, improvement, operation, or maintenance of the Project, provided that Owner shall have no indemnification obligation with respect to gross negligence or willful misconduct of the City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or conditio_~ of any public improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). 14. Interests of Other Owners Owner has no knowledge of any reason why Owner, and any other persons holding legal or equitable interests in the :Property as of the Effective Date, will not be bound by this Agreement. 15. Assignment (a) Right To Assign. 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 Agreement shall be binding upon, and the benefits of this 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 Agreement relating to such transferred property shall be binding upon and inure t the benefit of the transferee. (b) Notice of Assignment or Transfer. No transfer, sale or assignment of Owner's rights, interests and obligations under this Agreement shall occur without prior written notice to the City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within ten (10) days after Owner's notice, provided all necessary documents, certifications and other information are provided to the City Manager. Page 11 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 (c) Exception for Notice. Notwithstanding Section 15(b), Owner may at any time, upon notice to the Citty but without the necessity of any approval by the City, transfer the Property or any part thereof and all or any part of Owner's rights, interests and obligations under this Agreement to: (i) any subsidiary, affiliate, parent or other entity which controls, is controlled by or is under common control with Owner, (ii) any member or partner of Owner or any subsidiary, parent or affiliate of any such member or partner, or (iii) any successor or successors to Owner by merger, consolidation, non-bankruptcy reorganization or government action. As used in this subsection, "control" shall mean the possession, directly or indirectly, of the powe;r to direct or cause the direction of management or policies, whether through the ownership of voting securities, partnership interest, contracts (other than those that transfer Owner's interest in the property to a third party not specifically identified in this subsection) or otherwise. (d) Release Upon Transfer. Upon the transfer, sale, or assignment of all of Owner's rights, interests and obligations under this Agreement pursuant to Section 15 a , Section 15(b) or Section 15 c of this Agreement, Owner shall be released from t~1e obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of the City Manager's approval of such transfer, sale, or assignment or the effective date of such transfer, sale or assignment, whichever occurs later; provided, however, that if any transferee, purchaser or assignee approved by the City Manager expressly assumes any right, interest or obligation of Owner under this Agreement, Owner shall be released with respect to such rights, interests and assumed obligations. In any event, the transferee, purchaser or assignee shall be subject to all the provisions hereof and shall provide all r.~ecessary documents, certifications and other necessary information prior to (:ity Manager approval. (e) Owner's Right To Retain Specified Rights or Obligations. Notwithstandin ; Section 15(a) and Section 15 c , Owner may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which Owner shall retain, provided that Owner specifies such rights, interests and/or obligations in a written document to be appended to or maintained with this Agreement and recorded with the San Mateo County Recorder prior to or concurrently with the sale, transfer or assignment of the Property. Owner's purchaser, transferee; or assignee shall then have no interest in or obligations for such retained rights, interests and obligations and this Agreement shall remain applicable to Owner with respect to such retained rights, interests and/or obligations. (f) Time for Notice. ~]Vithin ten (10) days of the date escrow closes on any such transfer, Owner shall notify the City in writing of the name and address of the transferee. Said notice shall. include a statement as to the obligations, including any mitigation measures, fees, improvements or other conditions of approval, assumed by the transferee. Any transfer which does not comply with the notice requirements of this Section and Section 15(b) shall not release the Owner from Page 12 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 its obligations to the City under this Agreement until such time as the City is provided notice in accordance with Section 15(b . 16. Insurance (a) Public Liability and Property Damage Insurance. During the term of this Agreement, Owner shall maintain in effect a policy of comprehensive general liability insurance with aper-occurrence combined single limit of not less than ten million dollars ($10,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) per claim.. The policy so maintained by Owner shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. (b) Workers Compensation Insurance. During the term of this Agreement, Owner shall maintain. Worker's Compensation insurance for all persons employed by Owner for work at the Project site. Owner shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Owner agrees to indemnify the City for any damage resulting from Owner's failure to maintain any such required insurance. (c) Evidence of Insurance. Prior to City Council approval of this Agreement, Owner shall furnish the City satisfactory evidence of the insurance required in subsections (a) and ~~ and evidence that the carrier will provide the City at least ten (10) days prior written notice of any cancellation or reduction in coverage of a policy if the reducl:ion results in coverage less than that required by this Agreement. In the event of a reduction (below the limits required in this Agreement) or cancellation in coverage, or change in insurance carriers or policies, Owner shall, prior to such reduction, cancellation or change, provide at least ten (10) days prior written notice to the City, regardless of any notification by the applicable insurer. If the City discovers that the policies have been cancelled or reduced below the limits required in this Agreement a:nd no notice has been provided by either insurer or Owner, said failure shall constitute a material breach of this Agreement. 2. In the event of a reduction (below the limits required by this Agreement) or cancellation in coverage, Owner shall have five (5) days in which to provide evidence of the required coverage during which time no persons shall enter the Property to construct improvements thereon, including construction activities related to the landscaping and common improvements. Additionally, no persons not employed by existing tenants shall enter the Property to perform such work until such time as the City receives evidence of substitute coverage. 3. If Owner fails to obtain substitute coverage within live (5) days, the City may obtain, but is not required to obtain, substitute coverage and charge Page 13 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 Owner the cost of such coverage plus an administrative fee equal to ten percent (10%) of the premium for said coverage. (d) The insurance shall include the City, its elective and appointive boards, commissions, officers, agents, employees and representatives as additional insureds on the policy. 17. Covenants Run With The Land The terms of this Agreement are legislative in nature, and apply to the Property as regulatory ordinances. During the term of this Agreement, all of the provision; agreements, rights, powers, :>tandards, terms, covenants and obligations contained in this Agreement shall run with 'the land and shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees and all other persons or entities acquiring the Property, any lot, parcel or any portion thereof, and any interest therein, whether by sale, operation of law or other manner, and they shall inure to the benefit of the Parties and their respective successors. 18. Conflict With State or Federal Law In the event that State or Federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified (in accordance with Section 19 set forth below) or suspended as may be necessary to comply with such State or Federal laws or regulations. Notwithstanding the foregoing, Owner shall have the right to challenge, at its sole cost, in a court of competent jurisdiction, the law or regulation preventing compliance with the terms of this Agreement and, if the challenge in a court of competent jurisdiction is successful, this Agreement shall remain unmodified and in full force and effect. 19. Procedure for Modification Because of Conflict With State or Federal Laws In the event that State or Federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or pf;rmits approved by the City, the Parties shall meet and confer in good faith in a reasonable: attempt to modify this Agreement to comply with such State or Federal law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 19.60 of the Municipal Code. 20. Periodic Review (a) During the term of this Agreement, the City shall conduct "annual" and/or "special" reviews of Owner's good faith compliance with the terms and conditions of this Agreement in accordance with the procedures set forth in Chapter 19.60 of Page 14 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 the Municipal Code. The City may recover reasonable costs incurred in conducting said review, including staff time expended and attorneys' fees. (b) At least five (5) calendar days prior to any hearing on any annual or special review, the City shall mail Owner a copy of all staff reports and, to the extent practical, related exhibits. Owner shall be permitted an opportunity to be heard orally or in writing regarding its performance under this Agreement before the City Council or, if the matter is referred to the Planning Commission, then before paid Commission. Following completion of any annual or special review, the City shall give Owner a written Notice of Action, which Notice shall include a determination, based upon information known or made known to the City Council. or the City's Planning; Director as of the date of such review, whether Owner is in default under this Agreement and, if so, the alleged nature of the default, a reasonable period to cure such default, and suggested or potential actions that the City may take if such default is not cured by Owner. 21. Amendment or Cancellation of Agreement This Agreement maybe further amended or terminated only in writing and in the manner set forth in Government Code Sections 65865.1, 65867.5, 65868, 65868.5 anal Chapter 19.60 of the Municipal Code. 22. Agreement is Entire A rg Bement This Agreement and all exhibits attached hereto or incorporated herein contain the sole and entire agreement between the Parties concerning Owner's entitlements to develop the Property. The Parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof, except representations set forth herein, and each Party acknowledges that it has relied on its own judgment in entering this Agreement. The Parties further acknowledge that all statements or representations that heretofore may have been rriade by either of them to the other are void and of no effect, and that neither of them has relied thereon in its dealings with the other. 23. Events of Default Owner shall be in default under this 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 leave 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 Municipal Code that, upon the basis of substantial evidence, Owner has not complied in good faith with the terms and conditions of this Agreement; or, Page 15 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 (c) Owner fails to fulfill any of its obligations set forth in this Agreement and such failure continues beyc-nd any applicable cure period provided in this Agreement. This provision shall riot be interpreted to create a cure period for any event of default where such cure period is not specifically provided for in this Agreement. 24. Procedure Upon Default (a) Upon the occurrence of an event of default, the City may terminate or modify this Agreement in accordance with the provisions of Government Code Section 65865.1 and c-f Chapter 19.60 of the 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 Agreement. (c) No waiver or failure; by the City or Owner to enforce any provision of this Agreement shall be deemed to be a waiver of any provision of this Agreement or of any subsequent breach of the same or any other provision. (d) Any actions for breach of this Agreement shall be decided in accordance with California law. The remedy for breach of this Agreement shall be limited to specific performance. (e) The City shall give Owner written notice of any default under this 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; provided, however, that if such default is not capable of being cured within such thirty (3C)) day period, Owner shall have such additional time to cure as is reasonably necessary. 25. Attorneys Fees and Costs (a) Action Bx Party. If legal action by either Party is brought because of breach of this Agreement or to enforce a provision of this Agreement, the prevailing Party is entitled to reasonable: attorneys' fees and court costs. (b) Action By Third Pa~~. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project approvals, the Parties shall cooperate in defending such action. Owner :>hall bear its own costs of defense as a real party in interest in any such action, anal shall reimburse the City for all reasonable court costs and attorneys' fees expended by the City in defense of any such action or other proceeding. 26. Severability If any material. term or condition of this Agreement is for any reason held by a final judgment of a court of competent jurisdiction to be invalid, and if the same constitutes a Page 16 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 material change in the consideration for this Agreement, then either Party may elect in. writing to invalidate this entire Agreement, and thereafter this entire Agreement shall be deemed null and void and of no further force or effect following such election. 27. No Third Parties Benefited No person other than the City, Owner, or their respective successors is intended to or shall have any right or claim under this Agreement, this Agreement being for the sole benefit and protection of the Parties and their respective successors. Similarly, no amendrrent or waiver of any provision of this Agreement shall. require the consent or acknowledgment of any person not a party or successor to this Agreement. 28. Bindin~Effect of Agreement The provisions of this Agreement shall bind and inure to the benefit of the Parties originally named herein and their respective successors and assigns. 29. Relationship of Parties It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the City and- Owner and that Owner is not an agent of the City. The Parties do not intend to create a partnership, joint venture or any other joint business relationship by this Agreeme;nt. The City and Owner hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document e~:ecuted in connection herewith shall be construed as making the City and Owner joint venturers or partners. Neither Owner nor any of Owner's agents or contractors are or shall be; considered to be agents of the City in connection with the performance of Owner's obligations under this Agreement. 30. Bankru t_y The obligations of this Agreement shall not be dischargeable in bankruptcy. 31. Mortgagee Protection: Certain Rights of Cure (a) Mort~a~ee Protection. This Agreement shall be superior and senior to all liens placed upon the Prcperty or any portion thereof after the date on which this Agreement or a merriorandum of this Agreement is recorded with the San Mateo County Recorder, including the lien of any deed of trust or mortgage ( Mort~a~e ). Notwithstanding the foregoing, no breach hereof shall defeat, invalidate, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall b~ binding upon and effective against all persons~~and entities, including all deed of trust beneficiaries or mortgagees (Mort ag_~ees ), who acquire title to the Property or any portion thereof by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise. Page 17 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 (b) Mortgagee Not Obligated. No foreclosing Mortgagee shall have any obligation or uuty under this Agreement to construct or complete the construction of any improvements required by this Agreement, or to pay for or guarantee construction or completion thereof. The City, upon receipt of a written request therefor from a foreclosing MortgageE;, shall permit the Mortgagee to succeed to the rights and obligations of Owner under this Agreement, provided that all defaults by Owner hereunder that are reasonably susceptible of being cured are cured by the Mortgagee as soon as is reasonably possible. The foreclosing Mortgagee thereafter shall comply with all of the provisions of this Agreement. (c) Notice of Default To Mortgagee. If the City receives notice from a Mortgagee requesting a copy of any notice of default given to Owner hereunder and specifying the address, for service thereof, the City shall deliver to the Mortgage , concurrently with service thereof to Owner, all notices given to Owner describing all claims by the City that Owner has defaulted hereunder. If the City determines that Owner is in noncompliance with this Agreement, the City also shall serve notice of noncompliance on the Mortgagee, concurrently with service thereof on Owner. Until such time as the lien of the Mortgage has been extinguished, the City shall: Take no action to terminate this Agreement or exercise any other remedy under this Agreement, unless the Mortgagee shall fail, within thirty (30) days of receiptt of the notice of default or notice of noncompliance, to cure or remedy or commence to cure or remedy such default or noncompliance; provided, however, that if such default or noncompliance is of a nature that cannot be remedied by the Mortgagee or is of a nature that can only be remedied by the Mortgagee after such Mortgagee has obtained possession of and title to the Property, by deed-in-lieu of foreclosure or by foreclosure or other appropriate proceedings, then such default or noncompliance shall be deemed to be remedied by the Mortgagee if, within ninety (90) days after receiving the notice of default or notice of noncompliance from the City, (i) the Mortgagee shall have acquired title to and possession of the Property, by deed-in-lieu of foreclosure, or shad have commenced foreclosure or other appropriate proceedings, and (ii) the Mortgagee diligently prosecutes any such foreclosure or other proceedings to completion. 2. If the Mortgagee is prohibited from commencing or prosecuting forec~osure 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 over any bankruptcy or insolvency proceeding involving Ovvner, then the times specified above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition. (d) Performance B~Mort_gagee. Each Mortgagee shall have the right, but not the obligation, at any tune prior to termination of this Agreement, to do any act or Page 18 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 thing required of Owner under this Agreement, and to do any act or thing not in violation of this Agree-ment, that may be necessary or proper in order to prevent termination of this Agreement. All things so done and performed by a Mortgagee shall be as effective to prevent a termination of this Agreement as the same would have been if done anti performed by Owner instead of by the Mortgagee. No action or inaction by a Mortgagee pursuant to this Agreement shall relieve Owner of its obligations under this Agreement. (e) Mortgagee's Consent To Modifications. Subject to the sentence immediately following, the City shall not consent to any amendment or modification of this Agreement unless Owner provides the City with written evidence of each ~/Iortgagee's consent, which consent shall not be unreasonably withheld, to the amendment or modification of this Agreement being sought. Each Mortgagee shall be deemed to have consented to such amendment or modification if it does not object to the City by written notice given to the City within thirty (30) days from the date written notice of such amendment or modification is given by the City or Owner to the Mortgagee, reasonable evidence of the delivery of which notice shall be provided to the City if given only by Owner. 32. Estoppel Certificate Either Party from time to tune may deliver written notice to the other Party requesting written certification that, to the knowledge of the certifying Party, (i) this Agreement is ~n full force and effect and constitutes a binding obligation of the Parties; (ii) this Agreement has not been amended or modified either orally or in writing, or, if it has been amended or modified, specifying the nature of the amendments or modifications; and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and monetary amount, if any, of the default. A Party receiving a request hereunder shall endeavor to execute and return the certificate within ten (10) days after receipt thereof, and shall in all events execute and return the certificate within thirty (30) days after receipt thereof. However, a failure to return a certificate within ten (10) days shall not be deemed a default of the Party's obligations under this Agreement and no cause of action shall arise based on the failure of a Party to execute such certificate within ten (10) days. The City Manager shall have the right to execute the certiiFicates requested by Owner hereunder provided the certificate is requested within six (6) months of any annual or special review. The City acknowledges that a certificate hereunder may be relied upon by permitted transferees and Mortgagees. At the request of Owner, the certificates provided by the City establishing the status of this Agreement with respect to any lot or parcel shall be in recordable form, and Owner shall have the right to record the certificate for the affected portion of the Property at its cost. 33. Force Ma~e~ ure Notwithstanding anything to the contrary contained herein, either Party shall be excused for the period of any delay :in the performance of any of its obligations hereunder, except the payment of money, w'.hen prevented or delayed from so doing by certain causes Page 19 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 beyond its control, including, and limited to, major weather differences from the normal weather conditions for the South San Francisco area, war, acts of God or of the public enemy, fires, explosions, floods, earthquakes, invasions by non-United States armed forces, failure of transportation due to no fault of the Parties, unavailability of equipment, supplies, materials or labor when such unavailability occurs despite the applicable Party's good faith efforts to obtain same (good faith includes the present and actual ability to pay market rates for said equipment, materials, supplies and labor), strikes of employees other than Owner's, freight embargoes, sabotage, riots, acts of terrorism and acts of the government. The Party claiming such extension of time to perform shall send written notice of the claimed extension to the other Party within thirty (30) days from the commencement of the cause entitling the Party to the extension. 34. 35 Rules of Construction and Miscellaneous Terms (a) The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "'may" is permissive. (b) Time is and shall be of the essence in this Agreement. (c) Where a Party consists of more than one person, each such person shall be jointly and severally liable for the performance of such Party's obligation hereunder. (d) The captions in this Agreement are for convenience only, are not a part of this Agreement and do not: in any way limit or amplify the provisions thereof. (e) This Agreement shall be interpreted and enforced in accordance with the laws of the State of California. in effect on the date thereof. Exhibits Exhibit A-1 -Legal Description and Map of Primary Property Exhibit A-2 -Legal Description and Map of Adjacent Property Exhibit B -Use Permit, including Plan Set and Conditions of Project Approval 36. Notices All notices required or provided for under this Agreement shall be in writing and delivered in person (to inchude delivery by courier) or sent by certified mail, postage prepaid, return receipt requF;sted or by overnight delivery service. Notices to the City shall be addressed as follow: City Clerk P.O. Box 711, 400 Grand Avenue South San Francisco, CA 94080 Page 20 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 Notices to Owner shall be addressed as follows: ARE-San Francisco No. 21, L.P. c/o Alexandria Real Estate Equities 385 E. ColoradoBoulevard, Suite 299 Pasadena, CA 91 i O l Attn: Corporate Secretary 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. Page 21 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day and year first above written. CITY: CITY C-F SOUTH SAN FRANCISCO By: ATTEST: City Clerk APPROVED AS TO FORM: Barry M. Nagel, City Manager Steven T. Mattas, City Attorney OWNER: "Primary Property Owner" ARE-SAN FRANCISCO NO. 21, L.P., a California limited partnership By: ARE-SAN FRANCISCO NO. 21 GP, LLC, a Delaware limited liability company, General Partner By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., a Delaware limited partnership, Managing Member By: ARE-QRS CORP., a Maryland corporation, General Partner By: Print Name: Print Title: Page 22 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 "Adjacent Property Owner" ARE-SAN FRANCISCO N0.42, LLC, a Delaware limited liability company By: .ALEXANDRIA REAL ESTATE EQUITIES, L.P., ;~ Delaware limited partnership, Managing Member .By: ARE-QRS CORP., a Maryland corporation, General Partner By: Print Name: Print Title: Page 23 of 23 213 E. Grand Ave. Development Agt. October 10, 2008 EXHIBIT A-1 PRIMARY PROPERTY DESCRIPTION The land referred to in this Agreement as the "Primary Property" is situated in the City of South San Francisco, County of San Mateo, State of California, more particularly described as follows: Parcel A, Parcel Map 93-301, filed for record November 18, 1993, in Book 67 of Maps, at Pages 5 and 6, San Mateo County Records. Assessor's Parcel No. 015-041-300 EXHIBIT A-2 ADJACENT PROPERTY DESCRIPTION ~~ The land referred to in this Agreement as the "Adjacent Property is situated in the City of South San Francisco, County of San Mateo, State of California, more particularly described as follows. Beginning at the southwesterly corner of the lands described in Parcel 3 in deed to Milland Development Company, a corporation, recorded December 29, 1954, in Book 2716 of Official Records, of San Mateo County, at page 407 (13837-M) on the northerly line of East Grand Avenue; thence from said point of beginning along the northerly line of East Grand Avenue, north 89° 52' 30" east 202.07 feet to the true point of beginning~of the ?ands to be described; thence north 53° 22' 42" east 201.62 feet; thence south 56 37 18 east 83.08 feet; thence south 33° 22' 42" west 146.62 feet to the northerly line of East Grand Avenue above mentioned; thence along the last mentioned line south 89° 52' 30" west 99.63 feet to the true point of beginning. Assessor's Parcel No. 01.5-041-050-4 EXHIBIT B USE PERMIT PLAN SET [ See Following Pages ] 1168882.1