HomeMy WebLinkAboutRDA Reso 14-2009RESOLUTION NO. 14-2009
REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION APPROVING A MEMORANDUM OF
UNDERSTANDING AMONG THE CITY OF SOUTH SAN
FRANCISCO, REDEVELOPMENT AGENCY OF THE CITY
OF SOUTH SAN FRANCISCO AND OYSTER POINT
VENTURES LLC FOR POTENTIAL DEVELOPMENT OF THE
OYSTER POINT MARINA AND OYSTER POINT BUSINESS
PARK
WHEREAS, the Redevelopment Agency of the City of South San Francisco ("Agency")
is a redevelopment agency formed, existing and exercising its powers pursuant to the provisions
the Community Redevelopment Law of the State of California (Health and Safety Code Section
33000 et. seq.); and,
WHEREAS, the City Council of the City of South San Francisco ("City") has adopted a
Redevelopment Plan for the Downtown/Central Project Area (as amended, the "Project Area");
and,
WHEREAS, the City is the owner of certain real property located within the Project Area
and commonly known as the Oyster Point Marina ("Marina Property"); and,
WHEREAS, the City and the San Mateo County Harbor District ("District") have
established a joint powers authority that governs the development, operations, and maintenance
of the Oyster Point Marina Property, including management of the Oyster Point Marina by the
District; and,
WHEREAS, the District has. entered into certain long-term leases with King Ventures for
certain portions of the Marina Property, which leases require King Ventures to develop,
construct, and maintain a hotel and a commercial, village-style complex; however, to date, King
Ventures has not accomplished the goals and obligations pursuant to the King Leases; and,
WHEREAS, Oyster Point Ventures LLC, a joint venture between Shorenstein Properties
and SKS Investments LLC ("S/SKS"), has recently purchased the Oyster Point Business Park,
which is adjacent to the Oyster Pc-int Marina, for the purpose of developing the Oyster Point
Business Park into a modern research and development life sciences campus; and,
WHEREAS, in collaboration with the City and the Agency, S/SKS has proposed a
public-private development approach that would result in an integrated development of the
Oyster Point Marina and the Oyster Point Business Park ("Project"), which Project requires
collaboration amongst the City, the District, the Agency and S/SKS; and,
WHEREAS, the City desires to provide for an assignment of the King Leases to S/SKS,
and a collaborative process regarding future capital improvements, development and
management at the Marina Property, as the Parties anticipate that the operations at the Marina
will benefit from the Project and the future proximity to the life sciences campus; and,
WHEREAS, the Agency desires to redevelop the Marina Property and collaborate with
S/SKS regarding improvements to the Marina Property and development of the Project; and,
WHEREAS, on November 12, 2008, the City Council approved a "Framework
Agreement," which set forth a proposed Project, anticipated property conveyances, entitlements
needed, potential development schedule and guidelines for ongoing collaboration, investigation,
and negotiation between the City and the S/SKS to develop the terms and conditions of a
memorandum of understanding among the parties; and,
WHEREAS, City staff and S/SKS have since negotiated and developed anon-binding
Memorandum of Understanding, attached to this resolution as Attachment 1 ("MOU"), that
establishes a mutual understanding among the City, Agency and S/SKS regarding (1) a
description of the Project to undertake the required analysis by the City and Agency pursuant to
the California Environmental Quality Act ("CEQA"), (2) the feasibility of the project and
allocation of estimated costs among the parties, and (3) the necessary planning activities,
entitlements and agreements to implement the Project; and,
WHEREAS, the 1VIOU is a preliminary, non-binding agreement that does not commit the
City to a definite course of action or foreclose consideration of alternatives; and certification of
environmental review pursuant to CEQA will be required prior approval of any land use
entitlements for the Project; therefore, execution of this MOU is not an "approval" of a "project,"
as those terms are defined in CEQA..
NOW, THEREFORE, BE IT RESOLVED that the Redevelopment Agency of the City of
South San Francisco hereby:
(1) Finds and determines that the recitals are true and correct;
(2) Approves the MOU inn substantially the same form attached hereto as Attachment
1;
(3) Authorizes the Executive Director to enter into and execute the MOU in
substantially the same form as attached hereto as Attachment 1, and with any revisions,
amendments, or modifications deemed necessary by counsel to the Agency to carry out the intent
of this Resolution and which do not materially or substantially increase the Agency's obligations
thereunder; and
(4) Directs the members, employees, officers, and agents of the Agency to jointly and
severally do any and all things and to execute and deliver any and all other agreements deemed
necessary to carry out, give effect tc-, and comply with the terms and intent of this Resolution and
the MOU as approved by this Resolution so long as such agreements do not materially or
substantially increase the Agency's obligations with respect to the MOU.
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I hereby certify that the fore-going Resolution was regularly introduced and adopted by
the Redevelopment Agency of the City of South San Francisco at a regular meeting held on the
13t" day of May, 2009 by the following vote:
AYES: Boardmembers Pedro Gonzalez, Richard A. Garbarino, and Kevin Mullin,
Vice Chair Mark Add.ie~o
NOES: Chair Karyl Matsumoto
ABSTAIN: None
ABSENT:
ATTEST:~,4.~
Deputy City C
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MEMORANDUM OF UNDERSTANDING
(Oyster Point Marina)
THIS MEMORANDUM OF UNDERSTANDING (this "MOU"), dated and made effective as of
May , 2009 (the "Effective Date"}, is entered into by and among the City of South San
Francisco, a California municipal corporation ("City"}, South San Francisco Redevelopment
Agency, a public body, corporate and politic ("RDA"} and Oyster Paint Ventures, LLC, a
Delaware Limited liability company ("Developer"). City, RDA, and Developer are hereinafter
collectively referred to as the "Parties."
RECITALS
A. City is the owner of certain real property located in the City and commonly known as the
Oyster Point Marina ("Marina Property"}, as shown on the parcel map attached hereto as
~~ ' City and the San Mateo County Harbor District ("Harbor District"} have entered
into agreements related to the development, operations, and maintenance of the Marina Property,
including a joint powers agreement pursuant to Government Code section 6500 et seq. ("JPA"}.
City desires redevelopment of the Marina Property including potential commercial and
officelresearch and development uses and public amenities. Developer is the owner of certain
property located in the City, commonly known as the Oyster Point Business Parlc ("Business
Park"}, and adjacent to the Marina Property as shown on ~ ~ ~ "~ ~ r .
B. The Harbor District has entered into certain long-term leases with King Ventures for
certain portions of the Marina Property ("King Leases"), as shown generally on + x ~' :~ .The
King Leases require King Ventures to develop, construct, and maintain a hotel and a
commercial, village-style complex, but to date, Ting Ventures has not accomplished the goals
and obligations pursuant to the King Leases. Developer has an option to acquire King Ventures'
interests in the Marina Property, contingent upon the effectiveness of this MOU.
C. Developer acquired the Business Park for the specific purpose of redeveloping the
Business Park as a modern research and development life sciences campus with substantial
public amenities. In light of discussions with City regarding redevelopment of the Marina
Property, Developer proposed collaborative process to plan and carry out an integrated
development of the Marina Property and the Business Parlc. This proposed collaborative
development is referred to as the "Project," as more fully defined below. The Project is
proposed to include an officeireseareh and development life sciences campus, commercial
development (including retail, restauran#s, and hotel uses}, and substantial public amenities, as
described in greater detail in ~ ~.' . ~ ~ ~ ~~ and ~ : i ;' ~•
D. Upon the direction and authorization of the City Council, City and Developer entered into
a Framework Agreement dated November 24, 2008 ("Framework Agreement"}, which
established the Parties' understanding of: (i} the components of the proposed Project; (ii) the
process for and proposed conveyances of interests in the Marina Property and the King Leases;
(iii) a proposed approach to public financing; (iv} anticipated Project entitlements; (v} an
estimated schedule; and (vi} the roles and responsibilities of the Parties. Additionally, the
Framework Agreement provides a process for negotiation and preparation of this MOU, the
terms and conditions of which would establish a process and tentative agreements regarding
conveyance of property interests and development of the Project. The Parties anticipate that
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these agreements will include one or more agreements to exchange interests in the King Leases
and portions of the Manna Property ("Conveyance Agreement"), an Owner Participation
Agreement or similar agreement ("OPA"} to establish financing terms for development of
portions of the Marina Property, and a Development Agreement {"DA"} to govern development
of Project components at the Business Park and portions of the Marina Property. The
Conveyance Agreement, OPA, and DA would be acted on contemporaneously with the Project
entitlements (including amendment to the JPA}, but only fallowing certification of an
environmental impact report {"E1R") for the Project.
E. This MOU does not authorize the proposed construction of the Project or any other
construction and will not result in either a direct or reasonably foreseeable indirect physical
change in the environment; rather, this MOU only commits the Parties #o certain obligations
related to the planning and negotiation of the property exchanges and development thereon as
described herein. City, in conjunction with RDA, pursuant to the California Environmental
Quality Act (Section 21000 e1 seq. of the Public Resources Code, and the Guidelines set forth at
14 California Code of Regulations section 15000 et seq., "CEQA"), will prepare an EIR to
evaluate the potential environmental impacts afthe proposed Project. No construction will be
authorized until (i} City, in conjunction with RDA, has prepared, certified as adequate and
approved an EIR; (ii) City has approved the land use entitlements required for the Project; and
{iii) any agreements or regulatory permits required by any other applicable regulatory agencies
have been obtained.
G. The Parties acknowledge that the effectiveness of any OPA will be contingent upon the
approval of such OPA and related documents by RDA, and that the effectiveness of any
Conveyance Agreement and DA will be contingent upon the approval of such Conveyance
Agreement, DA and related documents by the City Council.
F. The Parties recognize chat the participation and cooperation of the Harbor District is
essential to the implementation of the Project. Accordingly, the Parties are committed to engage
in ongoing communications with the Harbor District regarding ail aspects of the proposed
Project and implementation processes that would affect the Harbor District.
NOW THEREFORE, in consideration of dle mutual covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
Section 1 Definitions.
"Business Park" shall mean the area currentl owned by Developer and commonly known as
the Oyster Point Business Park, as shown on .
"City/Harbor District MOU" shall mean anon--binding agreement among City, RDA and the
Harbor District, entered in conjunction with this MOU, to establish a preliminary understanding
among those parries regarding RDA's potential financial assistance to the Harbor District and the
Harbor District's continuing role with respect to management of the Marina Property and the
implemen#ation of the Project.
"City Project" shall mean the planning and development by City or its third-party designee of a
"Ferry Village" and open space/recreational uses on the City Property, including associated
Infrastructure Improvements, and including those Infrastructure Improvements that Developer
intends to construct pursuant to the terms herein.
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"City Property" shall mean the portion of the Marina Property to be retained in fee ownership
by City.
"Commencement Date" shall mean the first date on which (i} City, RDA, and Developer have
all duly approved and executed this MOU, (ii} City and Harbor District have both duly approved
and executed the City/Harbor District MOU, and (iii) all other conditions to the effectiveness of
the assignment of the King Leases have been satisfied, including consent by the California
Department of Boating and Waterways, Harbor District, and City.
"Conveyance Agreement" shall mean one ar more agreements} executed by City and
Developer to govern the transfer of the King Leases from Developer to City and the transfer of
the Conveyed Property from City to Developer.
"Conveyed Property" shall mean a portion of the Marina Property to be conveyed in fee
ownership from City to Developer pursuant to a Conveyance Agreement and subject to the terms
of an OPA.
"DA" shall mean a development agreement to be entered between City and Developer, pursuant
to Government Code section 65864 et seq., for development of fine Developer Project.
"Developer Project" shall mean the planning and development by Developer of a modern life
sciences campus, including research and. development and off ce uses, substantial public
amenities, and open space development on the Developer Pro erty, including associated
Infrastructure Im rovements, as further described in ' ~i ~' . ~.
P
"Developer Property" shall mean all of the land currently owned and to be acquired by
Developer, consisting of the Business Parlc and the Conveyed Property.
"Effective Date" shall mean May , 2009, the date on which City, RDA, and Developer have
all duly approved and executed this MOU.
"Environmental Conditions" shall mean preexisting envirorunental conditions present on the
Marina Property prior to conveyance of the Conveyed Property, including without limitation
those identified in . ~ t ' '~. .
"Framework Agreement" shall mean that agreement between City and Developer, dated
November 24, 2008, entered upon the direction and authorization of the City Council.
"I3arbor District" shall mean the San Mateo County Harbor District.
"infrastructure Improvements" shall mean those improvements contemplated for development
of the Project, as set forth in ~ ` . . .
"JPA" shall mean the joint powers agreement entered on October 24, 1977 between City and the
I~arbor District, pursuant to Government Cade section 6500 et seq., and as subsequently
amended.
"King Leases" shall mean certain long-term leases the I3arbor District has entered with King
Ventures for certain portions of the Marina Property, as shown on ~. ~ " ' 'W •. .
"Marina Property" shall mean the area commonly known as the Oyster Point Marina property,
as shown on the parcel map attached hereto as . ~. ~ , .The Marina Property is comprised of
the City Property and the Conveyed Property.
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"OPA" shall mean an Owner Participation Agreement to be entered between RDA and
Developer for redevelopment of the Conveyed Property.
"Project" shall mean the proposed integrated development of the Marina Property and the
Business Park. The Project is comprised of the Developer Project and the City Project, which
the Parties intend to plan and carry out by a collaborative process.
"Project Entitlements" shall have the meaning set forth in •:~.~n~~ of this MOU.
"RDA" shall mean the Redevelopment Agency of the City of South San Francisco.
"Redevelopment Plan" shall mean the Redevelopment Plan for the DowntownlCentral
Redevelopment Project, adopted by RDA on July 12, 1979, and as subsequently amended.
"Term" shall have the meaning set forth in ~~ of this MOU.
Section 2 Purpose of this MOU. This MOU is intended as an expression of preliminary
points of agreement among the Parties. It is intended to provide a basis for: (i) conducting
environmental review under CEQA by establishing an adequately specific description of a
"project" for analysis under CEQA; (ii) ascertaining the necessity and nature of various project
entitlements and other governmental authorizations and approvals; and (iii} negotiating terms of
a possible OPA, DA, and Conveyance Agreement, alI of which would be subject to approval,
following all necessary public hearings, by the RDA and the City Council, respectively.
Section 3 Preliminary Terms; No Obligation to Proceed. Nothing in this MOU creates a
binding obligation, and no binding agreement will exist unless the Parties sign an OPA, a DA,
and a Conveyance Agreement. Each Party expressly acknowledges and agrees that this MOU
creates no obligation on the part of any Party ta: {i} enter into an OPA, a DA, or a Conveyance
Agreement; {ii} grant any approvals or authorizations required for the Project; (iii) agree to any
specific terms or obligations; {iv) provide financing for the Project; yr (v) proceed with the
development of the Project; rovp_ided that the Parties agree that ~- . ~ .-. ~ ~ II~,~ . ~ ~ ~ # :~~ ~ ~ ~~ ~ ~ _ ~ ~ }
la' ~i, shall be binding upon the Parties. Except as set forth herein, all of the terms set
forth in this MOU are preliminary in nature and subject to approval by each of the Parties; and
memorialization in an executed OPA, DA, Conveyance Agreement and related documents. The
provisions of this section are hereby incorporated into each and every section of this MOU as
though set forth in their entirety in each such section.
Section 4 Good Faith Efforts to Negotiate and Cooperate.
4.1 Exclusive R.i~hts to Negotiate. City and RDA each agree that they will not,
during the Term of this MOU, directly or indirectly, through any officer, employee, agent, or
otherwise, solicit, initiate or encourage the submission of bids, offers or proposals by any person
or entity with respect to the acquisition of any interest in the Conveyed Property or the portions
of the City Property on which Developer intends to construct Infrastructure Improvements, or the
development of such property, and neither City nor RDA shall engage any broker, financial
adviser or consultant to initiate or encourage proposals or offers from other parties with respect
to the disposition or development of such property or any portion thereof. Furthermore, neither
City nor RDA shall, directly or indirectly, through any officer, employee, agent or otherwise,
engage in negotiations concerning any such transaction with, or provide information to, any
person other than Developer and its representatives with a view to engaging, or preparing to
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engage, that person with respect to the disposition or development of the Conveyed Property or
any portion thereof, or the portions of the City Property on which Developer intends to construct
Infrastructure Improvements.
4.2 Obligation to Negotiate in Good Faith. This MOU Drily binds the Parties to
negotiate and cooperate in good faith for the purposes specified herein, and not to enter into any
further agreement. City, RDA, and Developer shall use reasonable efforts to complete
negotiations for and preparation of an OPA, DA, Conveyance Agreement and related documents
which shall set forth the terms and conditions governing disposition and development of the
Project. Furthermore, the Parties shall use reasonable efforts to obtain any third-party consent,
authorization, or approval required in connection with the transactions contemplated hereby.
Section 5 Term; Schedule.
5.1 Term. The term of this MOU (the "Term") shall commence on the
Commencement Date, and shall terminate five hundred forty days {540) days thereafter, unless
extended or earlier terminated as provided herein. The Term may be extended for up to a
maximum of three (3} additional thirty (30} calendar day terms, or as otherwise mutually agreed,
upon the mutual written agreement of the Parties and approval by the City Council and RDA,
provided that the activities contemplated herein have progressed to the satisfaction of the City
Council and RDA in their sole discretion.
5.2 Project Schedule. Subject to further negotiation and unforeseen circumstances,
the schedule attached hereto and incorporated herein as _ ~' .i ~ ,~ reflects both Parties'
reasonable estimates of Project milestones, based on each Party's good--faith, diligent pursuit of
their respective responsibilities, in compliance with applicable law.
Section 6 Project Description. The Parties intend that the elements listed below be
included in the Project, subject to compliance with CEQA and obtaining all necessary City land
use entitlements and other governmental approvals_ The following elements are depicted on the
Concept Plan attached as ~„'bt ~ and are described in more detail in . = `.~ x. ?,~,~.
6.1 Life Sciences Campus. Developer will plan and develop a modern life sciences
campus, including research and development and office uses, and substantial public amenities
("Developer Project"}. The Developer Project will be constructed across a portion of the
Marina Property to be conveyed in fee o~~-rnership from City to Developer {"Conveyed
Property"} and the Business Park; collectively, the Conveyed Property and the Business Park
shall be referred to as the "Developer Property."
6.2 City Project. The portion of the Marina Property to be retained by City ("City
Property"} generally will be planned and developed by City or its designee as follows;
collectively, this portion of the Project is referred to as the "City Project." The Parties agree
that Developer also intends to plan and develop certain portions of the City Project as set forth in
:. ~ b
6.2.1 Ferry Village and Marina Facilities. A portion of the City Property will be
planned and developed as a "Ferry Village," which will likely provide retail and commercial
uses, food and beverage sales, and a hotel.
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6.2.2 open Space and Recreation. The Project will provide for Harbor District
and Marina uses and public openlrecreational space, to be planned and developed on the City
Property in conjunction with Harbor District as appropriate. '
6.3 Infrastructure and Public Improvements. The Parties anticipate that certain
infi-astructure improvements and public amenities, as set forth in ~~ ~ ("Infrastructure
Improvements"}, will be required to implement the Project.
6.4 Integrated Planning and Design.
6.4.1 The Parties intend to create an integrated plan and design for the Project,
as generally outlined above. The Parties will further discuss and execute agreements fihat will
address the compatibility of the City Property with the Developer Property. Such discussion will
include proposed uses of the Developer's and City's respective Properties as set forth in
k~•
6.4.2 In recognition of the value of maintaining integrated planning and
consistency of development for the Project, at any time City or RDA should desire to offer any
parcel or parcels of the City Property to be developed for uses that would be substantially similar
to the uses proposed to be developed on the Developer Property, City ar RDA shall offer to, and
upon indication of interest by, Developer, will enter into an exclusive negotiations agreement
with Developer for the acquisition and development of such parcel or parcels. The term of the
exclusive negotiations agreement shall be six (6} months, except as otherwise agreed upon by the
Parties.
6.5 Antic~ated Roles of Parties and Control of Development. Notwithstanding the
Parties' intention that the Project be planned on an integrated basis as described in ;~ ~ `~,
the Parties also intend that development will be carried out in two distinct parts: (i) Developer
will be in sole control of planning and development of the Developer Project on the separately
owned Developer Property and responsible for certain Infrastructure Improvements on certain
portions of the City Property; and (ii} City {working in conjunction with any designated third-
party contractor{s}) will be in sole control of planning and development of the City Project on the
City Property. Except as provided herein, the Parties-anticipate that the City Project will be
constructed and operated by a third party. Neither Party shall have any responsibility for
developmen# of the portions of the Project on property owned by another Party except for certain
Infrastnacture Improvements as sot forth in
Section 7 Public ApprovalsiCE~ALProiect Entitlements.
7.1 Project Entitlements. The Parties anticipate that the Project will require
discretionary entitlements, approvals, authorizations, and agreements from City, RDA, and other
regional, state, and federal entities ("Project Entitlements"), including those set forth in
~ ,~ ."
7.2 Cit~Approvals. Developer will be responsible for obtaining all Project
Entitlements from City and/or RDA for the Developer Project in accordance with Ciiy/RDA's
standard application process for discretionary land use entitlements, including payment for all of
City/RDA's costs of processing such approvals. Nothing set forth herein shall be construed as a
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grant of any such Project Entitlements, ar as an obligation on the part of City or RDA to approve
such Project Entitlements.
7.3 CEQA; Preparation of Environmental~Impact Report. Any approval of a Project
Entitlement by City andlor RDA shall be subject to and in full compliance with CEQA. No
construction or binding agreement between the Parties will be authorized until {i) -City, in
conjunction with RDA, has prepared, certified as adequate and in full compliance with CEQA,
and approved an EIR and related findings; (ii} City has approved the Project Entitlements over
which it has jurisdiction; and (iii) any agreements or regulatory permits required by any other
applicable regulatory agencies have been obtained. The Parties anticipate undertaking and
completing a program level EIR under CEQA for the entire Project, including the Developer
Project and the City Project, and a project level EiR under CEQA for each phase of the Project.
The program-level EiR will include a project level analysis for Phase I ofthe Praject, as defined
in ~ ' ~ .Developer will take all actions necessary, including submission of all necessary
reports and documents and payment of funds necessary for preparation of an EIR.
7.4 RDA Land Use Authority. RDA shall review all Project-related amendments to
the General Plan and the Oyster Point Marina Specific Plan to determine tl~e consistency of such
amendments with the Redevelopment Plan. Such amendments must be determined by RDA to
be consistent with the Redevelopment Plan prior to approval thereof by City. Except as set forth
in this `.+~~='.~i~~, RDA shall delegate to the City all land use authority over the Project,
including, without limitation, the authority to review and approve all zoning entitlements,
subdivision maps, and all design review approvals.
7.5 Timely Processing by City and RDA. Upon submission by Developer of all
appropriate applications and processing fees for any Project Entitlement over which it has
jurisdiction, City and/or RDA, as appropriate, shall promptly and diligently commence and
complete all steps necessary to act on the Project Entitlement application including, without
limitation: (i} providing at Developer's expense reasonable overtime staff assistance and/or staff
consultanfis for planning and processing of each Project Entitlement application; (ii) if legally
required, providing notice and holding public hearings; and (iii) acting on any such Project
Entitlement application. City and/or RDA shall ensure that adequate staff is available, and shall
authorize overtime staff assistance as may be necessary, to timely process such Project ..
Entitlement application. To the extent practicable and in accordance with applicable law, the
review- and processing of applications far Project Entitlements will occur contemporaneously
with preparation of the EIR far the Project.
7.6 Other Governmental Approvals; Cooperation. City and/or RDA shall cooperate
with Developer in its efforts to obtain any permits ar approvals as may be required from other
governmental ar quasi-governmental agencies having jurisdiction over the Project, including
those listed above and others not listed above, and shall, from time to time at the request of
Developer, join with Developer in the execution of such permit applications and agreements as
-may be required to be entered into with any such other agency, and will use reasonable efforts to
enter into binding agreements with any such entity as may be necessary to ensure the timely
availability of such permits and approvals.
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Section S Owner Participation Agreement; Development Agreement.
8.1 Contemplated Agreements. After completion of the required analysis pursuant to
CEQA and the certification of a Final EIR, and in the exercise of the fiill lawful discretion of
City and/or RDA, as applicable, the Parties may enter into (i} an OPA that will, except as
modif ed by the mutual consent of the Parties, be based on the terms set forth in ~ ~ _ ' .
below and in ; . ~ ~ ; (ii} a DA to be based generally on the terms set forth in'a : ~ ~ ~ ~; and
(iii} a Conveyance Agreement, to be based generally on the terms set forth in +~ ' .~, ~. The
terms of the OPA, DA and Conveyance Agreement, set forth below and in the Exhibits, are
expressly subject to and shall be modif ed as necessary to allow implementation of the mitigation
measures in the Final EIR for the Project or an alternative project design that may be identified
and selected by the City and/or RDA as the environmentally preferred alternative.
8.2 Coordination of A eements. The Parties anticipate a single, coordinated process
to plan and prepare the OPA, DA, and Conveyance Agreement concurrently, resulting in an
integrated Project as stated in •• . _ ~ ~ •.' . To the extent practicable and in accordance with
applicable law, the negotiation and drafting of the Conveyance Agreement, OPA, and DA will
occur contemporaneously with preparation of fine EIR for the Project, subject to any
modifications necessary to comply with all applicable laws.
Section 9 Property Exchange.
9.1 Exchange of Parcels.
9.1.1 Property to Be Exchanged. The Parties anticipate creation of new legal
parcels to facilitate the conveyance of property interests pursuant to the OPA. The futwe parcels
to be exchanged by the Parties pursuant to this =:. -... ~ vn~ ~.. are as depicted generally on „,,;, x ,;
9.1.2 _ConyeYances Between the Parties. At such time as the Parties are
prepared to initiate construction of the Infrastructure Improvements, and subject to satisfaction of
the conditions set forth in the Conveyance Agreement, the Parties anticipate that the following
actions will take place:
A. Pursuant to the Conveyance Agreement, Developer will convey to
City, and City v~~ill accept from Deve]oper, Developer's interest in the King Leases. Following
the conveyance, and any necessary consent from the Harbor District and the California
Department of Boating and waterways, the King Leases will be terminated. Developer shall
remove any liens, encumbrances, or sub-leases, except as agreed by the Parties.
B. City shall convey to Developer, and Developer shall accept from
City, fee title to the Conveyed Property, which will consist of approximately 14.28 acres, in
accordance with the terms, covenants anal conditions set forth in the Conveyance Agreement.
The conveyance of the Conveyed Property from City to Developer shall be accomplished
through the Conveyance Agreement and by recordation of a grant deed and an amendment to the
JPA.
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9.2 Due Diligence. The Parties intend to conduct due diligence for the property
conveyances in accordance with the terms and process set forth in ' a~b„~.
Section 10 Environmental Matters.
10.1 Environmental Remediation. The Parties anticipate that development of the
Project on the Marina Property will require environmental remediation and related geotechnical
work, including cleanup of sumps on the Marina Property, a methane monitoring system as set
forth in Section 10.3, relocation of refuse, and repair of the clay cap covering the landfill. The
Parties agree to allocate costs for these remediation activities as set forth in .
10.2 Environmental Indemnification. With respect to preexisting environmental
conditions present on the Marina Property, including those identified in
("Environmental Conditions"}, the Parties intend that, both before and following Developer's
acquisition of the Conveyed Property, City shall retain responsibility far all such Environmental
Conditions. City shall indemnify, defend, release, and hold.harmless Developer in connection
with any costs or claims arising from or otherwise related to the Environmental Conditions;
provided, however, that Developer understands that it will be responsible for payment of the
costs incurred in furtherance of the remediation activities contemplated in = ~ "= The
City shall have no obligation to defend, indemnify or hold Developer harmless for, and
Developer understands that , as respects City and RDA, Developer will be solely responsible for,
remediation, damages, penalties, or other costs to the extent arising from or otherwise related to
(i) any releases of hazardous materials that are brought on to the Conveyed Property by
Developer or its agents after the acquisition; (ii} exacerbation of the Environmental Conditions
arising from Developer's negligence, gross negligence, willful misconduct, ar failure to conduct
the remediation in compliance with applicable environmental laws.
10.3 Methane Monitoring. The Parties intend that City and/or Harbor District shall
retain responsibility for monitoring landfill-related methane releases on the City Property and the
Developer Property, as well as maintenance, repair, or replacement of the equipment and systems
necessary to conduct necessary monitoring. Developer does not through this M~U, and will not
through the QPA or any future agreement relating to the Project, acquire responsibility to carry
out methane monitoring or related maintenance, repair, or replacement on the City Property or
Developer Property, or any other environmental assessment, stabilization, remediation, or
associated costs. Notwithstanding the :foregoing, the Parties intend that (i) Developer will fund
initial installation of methane monitoring systems on the Conveyed Property, as set forth in
{ ~~~, and (ii} Developer will cooperate to the extent reasonably necessary in methane
monitoring activities conducted by City or a third party.
Section 11 Project Development and Financing.
11.1 Development and Construction of Project. The Parties contemplate that
Developer will develop and construct the Developer Project in accordance with the terms set
forth in f ~ ~ ~ ~ and ,and that RDA and City (or their contractors, lessees or agents} will
develop and construct the City Project, in accordance with high and consistent standards for
private and public facilities, respectively. Without limiting the effect of the foregoing, the
MN 1179731-11
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Parties anticipate that the OPA will allocate to Developer responsibility for construction of
certain Infrastructure Improvements in fiartherance of the City Project as set forth in ~ ~ ; ~ x ~ .
11.2 Permits and Approvals. Developer will timely submit to the appropriate City
agencies design and related documents required by applicable laws required for land use
approvals and building permits. Developer acknowledges that the execution of the DA by City
does not limit in any manner the discretion of City in the approval process in accordance with
applicable laws. City staff will work cooperatively with Developer to assist in coordinating the
expeditious processing and consideration of all relevant Project Entitlements. Developer will
promptly pay when due all fees and charges required in connection with the processing of
permits and approvals by City, County and all other governmental or nongovernmental agencies
with jurisdiction over the Project Entitlements, as set forth in ,t%; , .. '1 ~.
11.3 Availability of Public Services. To the maximum extent permitted by [aw and
consistent with its authority, the Parties intend that the DA will include a provision pursuant to
which the City shall assist Developer in reserving such capacity for services as may be necessary
to serve the Project. The minimum sewer capacity to be reserved for the Project shall be
established by a Final EIR for the Project.
11.4 Development Costs. The Parties have estimated the cost of certain Infrastructure
Improvements (the "Improvement Costs"), as set forth in .._~` ` .The Parties anticipate that
the OPA will allocate responsibility for payment of the Improvement Costs as set forth in
E ~ ~; however, the amount of the Improvement Casts shall be (i} further ref ned in
connection with the preparation of detailed plans and specifications for the Infrastructure
Improvements, {ii) approved by the Parties, and (iii} subject to final approval memorialized in
the OPA based on such updated cost estimates. When developing particular Infrastructure
Improvements, any cost overruns .will be paid by, and any cost savings will be retained by, the
Party responsible for funding those Infrastructure Improvements {or, as applicable, by each Party
in proportion to its responsibility to fund such improvements). Notwithstanding the foregoing,
the Parties anticipate that each Party will pay all other direct and indirect, foreseen or unforeseen,
costs associated with the development of the Project on its respective separately owned Property.
11.5 Infrastructure Financing. In order to finance a portion of the improvement Casts,
the Parties intend to utilize public finance mechanisms allowed under California law, including,
without limitation, one or more of the mechanisms set forth below. To the extent practicable and
in accordance with applicable law, the negotiation and drafting of any agreements or other
documents relating to public financing will occur contemporaneously with preparation of the
program level EIR for the Project.
11.5.1 CornmunitX,Facilities District for Public Improvements. The City, upon
request of Developer, intends tv form one or mare community facilities districts ("CFD") and
levy a special tax on the Developer Property included in such CFD solely in order to defray
certain of the Improvement Costs, including without limitation, construction, engineering,
environmental remediation, financing, land acquisition {if necessary}, and other costs related to
the Infrastructure Improvements in Phases ID, IC, and IID~IVD, as identified in ~ ~ i ~. The
City may commence the process for formation of the CFD promptly following execution of the
OPA. Subject to prior agreement between City and Developer regarding the formation of such
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So
CFD and the terms thereof, Developer shall consent to the formation of such CFD and the levy
of special taxes to defray the Improvement Costs, including costs for those Infrastructure
Improvements to be located on the Developer Property. Subject to pear agreement between City
and Developer regarding the formation of such CFD and the terms thereof, Developer agrees not
to protest the formation of such district or levying of special taxes thereunder and, if an election
is required far formation of the CFD and/or levy of special taxes, Developer agrees to vote in
that election and agrees to vote in favor of the formation of the CFD and/or levy of a special tax.
In any leases or agreements for sale of the Developer Property permitted by the City, Developer
shall include provisions that assure that any right of consent, right to protest or right to vote on
formation of a CFD or levy of a special tax that is held by the tenant or transferee is exercised in
the same manner as is required of Developer in this Section.
Developer acknowledges and agrees that nothing in this MOU or the OPA will limit the
Legislative discretion of City to form a CFD or to act on protests or objections made in
connection with formation of such district or the levy of any special tax by the district.
11.5.2 RDA Payment of Special Tax. To the extent permitted by law, the City
may elect to include any portion of the City Property within the boundaries of a CFD established
under :. ~ ~'-=~ ~ ~' ~~: above. In the event City makes such election, RDA will pay yr cause the
payment of any special taxes imposed by such CFD with respect to the City or any
improvements thereon.
11.5.3 RDA Payment of Improvement Costs. The OPA will provide that, upon
commencement of construction of certain Infrastructure Improvements, RDA will make a
payment to Developer for a portion of the Improvement Costs (the "RDA Funding
Requiremcnt"). Notwithstanding the foregoing, Developer acknowledges and agrees that RDA
will only be obligated to pledge and pay the RDA Funding Requirement in the event that
Developer has undertaken or completed development and construction of such portion of the
Infrastructure Improvements as set Earth in the OPA. The OPA will set forth a payment system
(such as requisition requests) for the RDA Funding Requirement, including a schedule for
phased payments during each phase ofthe Project consistent with . ~ ~~' `: ' ~. Developer will be
responsible for all Improvement Costs not paid by the RDA Funding Requirement.
11.5.4 RDA Budget. The OPA will contain a provision that requires that RDA
will include the RDA Funding Requirement pledge in its annual budget and will make timely
application for and submit all documentation required to the allocation to RDA of the RDA
Funding Requirement within the times and in the amounts required to fulfill RDA's obligations
hereunder. RDA will take all actions and budget all amounts, including prepayments ar
additional payments if necessary, in order to full 11 and satisfy RDA's obligations under the
MDU and this OPA prior to expiration of any applicable time limits with respect to RDA's
ability to do so under the Redevelopment Plan.
11.5.5 Existin Assessments. The Parties understand and agree that as of the
Effective Date, the fees, taxes, exactions, dedication obligations, and assessments (collectively,
"Assessments"} listed in ti ~ ~ ,~ are the only City Assessments. City is unaware of any
pending efforts to initiate, or consider applications for new or increased Assessments covering
the Marina Property or Business Park, or any portion thereof, except for those pending efforts
described on _ In order far Developer to accurately predict the feasibility of the
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Project, and material tv Developer's willingness to make the commitments contemplated herein,
the Parties intend that, as of the effective date of the DA, the DA will vest Developer's right to
develop the Project subject only to the Assessments listed on ~ .
11.6 Title to Infrastructure; Dedications. The Parties anticipate that, following
construction of the public Infrastructure Improvements, the Improvements will be dedicated to
City, and City will assume responsibility far maintenance, repair, and replacement, subject to the
expiration of typical warranty periods otherwise applicable within the City.
11.7 Relocation and/or Vacation of Public Rights of Way and Public Utilities_ In order
for development of the Project to occur in accordance with the Concept Plan, portions of certain
public rights-of way and public utilities that run through the Marina Property must be vacated by
the City, and the vehicular circulation on the Marina Property must be reconfigured. Without
limiting City's discretion in its consideration of a future application for the relocation or vacation
of any public rights-of--way or public utilities, City shall accept and process in good faith any
such application submitted by Developer in connection with the Project and consistent with the
Concept Plan.
11.8 Easements. Developer will execute appropriate documents providing far the
recordation of easements andlar license agreements, at no cost to the City, for the public
Infrastructure Improvements to be constructed on the Developer Property as identified in
~1•
Section 12 Cooperation. Each Party agrees: (i} to furnish upon request to each other Party
such further information; (ii) to execute and deliver to each other Party such other documents,
and execute such instruments and applications; and (iii) to do such other acts and things, all as
another Party may reasonably request for the purpose of carrying out the intent of this MOU.
Section 13 Expenses.
13.1 Reimbursement by Developer. Developer shall pay or reimburse all subsequent
costs and expenses (including but not limited to Legal fees and consultant costs} incurred or paid
by City and RDA in connection with this MOU and the activities contemplated hereby (including
without limitation, the analysis ofPraject pro formas, the negotiation and preparation of an OPA
and DA, the preparation of surveys, the preparation of any reports required by Redevelopment
Law (Health & Safety Code Section 33000 et seq.), if applicable, the undertaking of any actions
necessary for the conveyance of the Conveyed Property or any portion thereof, and compliance
with all other required statutory procedures}, except as the Parties otherwise may agree. Within
ninety {90} days of the Effective Date, the Parties shall meet and confer to prepare an initial
budget far the foregoing costs. City will provide Developer in advance with the rates to be
charged by each City department and each outside consultant to City and/or RDA and
descriptions for work under this MOU, including the scope and estimated budget of the City's
costs and such outside consultant costs for work under this MOU.
13.2 Deposit. Within five {5) business days of the Effective Date, Developer shall
ensure that $50,000 is on deposit with City for the initial costs set forth herein, including any
remaining funds Developer previously placed on deposit with City pursuant to the Framework
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Agreement, which the Parties agree shall carry over to satisfy the terms of this Section. At any
such time that City provides written notice to the Developer that the amount on deposit is below
$20,000, Developer shall within ten {10} business days deposit an additional $50,000 with City.
13.3 Biannual Accounting. Commencing an July 31, 2009 and continuing every six
(6} months thereafter, City and RDA will provide Developer with a written accounting of costs
incurred pursuant to this MOU by the City and RDA during the prior six months (either January
tlu-ough June or July through December). The Parties agree that the f rst report will cover
January 1, 20Q9 through June 30, 2009. The Parties also agree that during the final month of
each six-month period identified above, City and RDA will provide a written estimate of the
costs to be incurred and a description of the work to be performed during the following six-
month time period. Within fifteen (15} days of receiving the City and RDA report, the parties
shall arrange fora "meet and confer" to review the submission and to agree on a budget for fihe
upcoming six-month period. The meet: and confer process need not be lengthy or in person.
The Parties agree to work cooperatively and in good faith in this biannual process to set
mutually acceptable budgets far City and RDA's work pursuant to this MOU. In light of those
budgets, Developer will replenish the Developer Project Account from time to time through
additional wire transfers or other appropriate methods of payment. With regard to the consultant
costs far preparation of the environmental impact report and the Redevelopment Plan
amendment, Developer agrees that it shall deposit the full amount of those consultant contracts
prior to City and/or RDA issuing a notice to proceed to the consultants.
13.4 Unanticipated Costs. If at any paint, City and/or RDA reasonably anticipate that
it ar they will encounter costs pursuant to this MOU that (1 }have not previously been addressed
through the biannual submissionlmeet and confer process and (Z} cannot reasonably be addressed
through existing uncommitted funds in the respective accounts, City and/or RDA will provide
Developer with a written explanation of the circumstances giving rise to such out of the ordinary
course costs. The parties will thereafter promptly meet and confer to resolve the issue in a
mutually acceptable manner.
I3.5 Insuff cient Funds. If Developer elects not to provide additional funds as
requested by City and/or RDA, or to the extent that there are insufficient funds to support
continuing costs and expenses incurred by City and/or RDA consistent with the terms of this
MOU, City and/or RDA shall have no further obligations under this MOU or to continue
processing Developer's applications and/or the Redevelopment Plan until such time as additional
funds from Developer are deposited. In addition, City and RDA will not authorize additional
consultant contracts or authorize additional work by consultants related to the Project
Entitlements identif ed in = ~: ~ a -~ unless: {1) such work is necessary for City or RDA to satisfy
any state or federal requirements, and (2) Develaper has not submitted a written request to the
City to withdraw its application for alI Project Entitlements identif ed in :,.~ of this MOU.
Section 14 Developer Access. During the Term, City shall provide Develaper access to the
Marina Property and will cooperate with the Developer to enable Developer or its agents,
employees, consultants, contractors, or subcontractors to obtain access to the Marina Property for
the purpose of obtaining data and making tests necessary to investigate the condition of the
Marina Property, provided that Developer complies with all safety rules and does not
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unreasonably interfere with the operations of any current tenants. Developer's inspection,
examination, survey and review of the Marina Property will be at Developer's sole expense.
Developer shall provide City with copies of all reports and test results related to the Marina
Property promptly following completion of such reports and testing. Except as otherwise agreed
upon by City in writing, Developer shall repair, restore and return the Marina Property and any
improvements thereon to their condition immediately preceding Developer's entry thereon at
Developer's sole expense. Developer shall at all times keep fihe Marina Property free and clear
of all liens and encumbrances affecting title to the Marina Property. Without limiting any other
indemnity provisions set forth in this MOU, Developer shall indemnify, defend (in accordance
~~,; ~r
with the procedure set forth in - ~' ~ and hold City and its respective elected and appointed
officers, officials, employees, agents and representatives (all of the foregoing, collectively
hereinafter the "Indemnitees") harmless from and against all liability, loss, cost, claim, demand,
action, suit, legal yr administrative proceeding, penalty, deficiency, fine, damage and expense
(including, without limitation, reasonable attorneys' fees and costs of litigation) (all of the
foregoing, collectively hereinafter "Claims") resulting from or arising in connection with entry
upon the Marina Property by Developer ar Developer's agents, employees, consultants,
contractors or subcontractors pursuant to this ~ ~. ,r ,
Section 15 Confidentiality; Dissemination of Information. The Parties hereby incorporate
by reference the Confidentiality Agreement entered between the Parties, effective as of April 15,
2009, and attached hereto as . = r ~.i ~ .
Section 16 No Liability.
I6.I Project Costs. Developer hereby acknowledges and agrees that City and RDA
have no obligation whatsoever to accept or approve of any OPA, DA, Conveyance Agreement,
or related Project Entitlements proposed in this MOU. Accordingly, City and RDA shall have no
obligation whatsoever to reimburse Developer for any casts incurred by Developer during the
Term, including reimbursement costs for City and/or RDA retained consultants.
16.2 Indemnification.
16.2.1 Developer hereby covenants, on behalf of itself and its permitted
successors and assigns, to indemnify, hold harmless and defend (in accordance with the process
set forth in ~'~) Indemnitees from. and against all Claims and liability, resulting from or
arising out of the actions of Developer or its agents, employees, consultants, contractors, or
subcontractors pursuant to this MOU; provided however, Developer shall have no
indemnification obligation with respect to Claims resulting from or arising out of the gross
negligence or willful misconduct of any Indernnitee.
16.2.2 The obligations of Developer under this Indemnif cation shall survive the
termination of this MOU, regardless of whether any approvals, permits or entitlements are
granted by City. Notwithstanding the foregoing, the Parties anticipate that the Conveyance
Agreement, OPA, and DA will each contain indemnification provisions relating to the subject
matter of each agreement and that such indemnification provisions will supersede the
Indemnif cation provided under this MOU.
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16.2:3 City and RDA will promptly notify Developer of any Claim that is or may
be subject to this indemnification and will cooperate fially in the defense.
16.2.4 City andlor RDA may, in its respective discretion, participate in the
defense of any Claim if City and/or RDA defends the Claim in good faith. To the extent that
City and/or RDA uses any of its resources responding to a Claim, Developer shall reimburse City
and RDA its respective reasonable expenses upon demand_ Such expenses include, but are not
limited to, staff time, court costs, legal fees (City Attorney's time at their regular rate. for external
or non-City agencies or retained outside counsel), and any other direct or indirect cost associated
with responding to the Claim.
16.2.5 Developer shall pay all court--ordered costs and attorney fees, except for
those relating to Claims arising out of the gross negligence or willful misconduct of any
Indemnitee.
Section 17 Amendment of A reement. This MOU may be amended from time to time, in
whole ar in part, by mutual written consent afthe Parties hereto or their successors in interest.
Section ~.8 Termination; Effect of Termination; Enforced Delay.
18.1 Process. This MOU maybe terminated at any time by mutual written consent of
the Parties. City shall have the right to terminate this MOU upon its good faith determination
that Developer is not proceeding diligently and in good faith to carry out its obligations pursuant
to this MOU. City shall exercise such right by providing, pursuant to a duly adopted City
Council resolution, at least ninety (90) days' advance written notice to Developer which notice
shall describe the nature of Developer's default hereunder. Notwithstanding the foregoing, if
Developer commences to cure such default within such 90-day period and diligently prosecutes
such cure to completion within the earliest feasible time but not later than ninety (90) days
following the date of the notice, this MOU shall remain in effect. Developer shall have the right
to terminate this MOU, effective upon thirty (30) days' written notice to City, if (i) the results of
its investigation of the Marina Property are unsatisfactory with respect to Developer's desired
redevelopment activities; (ii} Developer is unable to obtain other necessary approvals, rights or
interests; or (iii} Developer determines, in its sale discretion, that proceeding with the Project
will not be financially feasible. Neither Party shall have the right to seek an award of damages
as a result of the termination of this MOU pursuant to this Section, unless made in bad faith.
1$.2 Effect of Termination. Upon termination as provided herein, or upon the
expiration of the Term and any extensions thereof without the Parties having successfully
negotiated a DA, an OPA, a Conveyance Agreement, and related documents, this MOU shall
forthwith be void, and there shall be no further liability or obligation on the part of either of the
Parties or their respective off cers, employees, agents or other representatives; provided however,
the provisions of ~ .. ~ ~ (Expenses), :. ' '. , ..(Developer Access}, 5 ~ .
{Confidentiality}, ~- ~ ~ - • {Indemnification) and ~ - ~ =. ~ _~ (No Brokers) shall survive such
termination.
18.3 Enforced Delay. Performance by any Party shall not be deemed to be in default,
and all performance and other dates specified in this MOU shall be extended where delays are
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due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of
God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes,
governmental restrictions or priority, litigation, including court delays, unusually severe weather,
acts or omissions of another Party, acts or failures to act of other public or governmental agency
or entity, or any other cause beyond the affected Pariy's reasonable control. An extension of
tune for any such cause shall be for the period of the enforced delay and shall commence tv run
from the time ofthe commencement of the cause, if notice by the Party claiming such extension
is sent to the other Parties within thirty (30} days of the commencement of the cause and such
extension is not rejected in writing by the other Parties within ten (10) days of receipt of the
notice. Na Party shall unreasonably withhold consent to an extension of time pursuant to this
Section.
Section I9 Notices. Except as otherwise specified in this M~U, all notices to be sent
pursuant to this MQU shall be made in writing, and sent to the Parties at their respective
addresses specified below or to such other address as a Party may designate by written notice
delivered to the other Parties in accordance with this Section. 'All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii} nationally recognized ovenght courier, with charges prepaid or charged
to the sender's account, in which case notice is effective on delivery if delivery is confirmed by
the delivery service; or
(iv} facsimile transmission, in which case notice shall be deemed delivered
upon transmittal, provided that (a} a duplicate copy of the notice is promptly delivered by first-
class or certif ed mail or by overnight delivery, or (b) a transmission report is generated
reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered
to have been received on the next business day if it is received after 5:00 p.m. recipient's time or
on anon-business day.
City: City of South San Francisco
400 Grand Ave.
South San Francisco, CA 94080
Attn: City Manager
Phone: {650} 829-6620
Facsimile: (650) 829-6623
Agency: Redevelopment Agency of the City of South San Francisco
400 Grand. Ave.
South San Francisco, CA 940$0
Attn: Executive Director
Phone: (650) 829-6620
Facsimile: (650) 829-6623
1fi
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With a copy to; Meyers Nave
575 Market Street, Suite 2600
San Francisco, CA 94105
Attn: Steven T. Mattas
Phone: (415} 421-3711
Facsimile: (415} 421-3767
Developer: SRI Nine Oyster Point LLC
235 Montgomery Street, 16th Floor
San Francisco, CA 94104
Attn: Todd Sklar
Phone: (415} 772-7069
Facsimile: (415} 772-7148
With copies to; Oyster Point Ventures LLC
601 California Street, Suite 1310
San Francisco, CA 9410$
Attn: Pau]. Stein
Phone: (4'I 5) 421-8200
Facsimile: (415) 421-8201
Morrison ~c Foerster LLP
425 Market Street
San Francisco, CA 94105
Attn: Zane O. Gresham
Phone: (415} 26$-7000
Facsimile: {415) 268-7522
Section 20 Severabili~. If any term or provision of this MOU or the application thereof
shall, to any extent, be held to be invalid or unenforceable, such term or provision shall be
ineffective to the extent of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining terms and provisions of this MOU or the application of such terms
and provisions to circumstances other than those as to which it is held invalid or unenforceable
unless an essential purpose of this MOU would be defeated by loss of the invalid or
unenforceable provision.
Section 21 _Entire Agreement; Amendments in Writing; Counterparts. Except as
expressly set forth herein, this MOU contains the entire understanding of the Parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous agreements and
understandings, oral and written, between the Parties with respect to such subject matter. This
MOU may be amended only by a written instrument executed by the Parties or #heir successors
in interest. This MOU may be executed in multiple counterparts, each of which shall be an
original and all of which together shall constitufie one agreement.
Section 22 Successors and Assigns; No Third-Party Beneficiaries. This MOU shall be
binding upon and inure to the benefit of the Parties and their respective successors and assigns.
Subject to approval by City as to qualifications and fnancial capabilities of Developer's
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assignee, Developer may transfer or assign all or any portion of its interests, rights or obligations
under this MOU to any third party or parties acquiring an interest ar estate in the Project or any
portion thereof including, without Iimitation, purchasers or ground lessees of lots, parcels, or
facilities_
22.1 Request for Approyal~Notice. For any transfer or assignment that requires City's
approval, Developer shall notify City in writing of its request for consent, which notice shall
include: (i} the proposed effective date of transfer or assignment {which shall not be less than
thirty (3 Q} days nor more than three-hundred sixty-five (3bS} days after Developer's notice; {ii}
the name and address of the proposed transferee, and {iii} current, audited financial statements of
the proposed transferee certified by an off ter, partner, or owner thereof and any other relevant
information pertaining to the proposed transferee's qualifications or financial capabilities that
City may reasonably and timely request.
22.2 Approval. City may refuse to give its consent under this ~.~oti only if, in
light of the proposed transferee's development experience and financial resources, such
transferee would not, in the City's reasonable opinion, be able to perform the obligations
proposed to be assumed by such assignee. In malting such determination, the City shall evaluate:
(i) the financial ability of the proposed transferee to own and develop the Project, or portion
thereof so transferred; and {ii) the fitness and experience of the proposed transferee and its senior
managerial personnel to own and develop the Project or portion thereof so transferred. Such
approval by City shall not be unreasonably delayed, conditioned, ar witl~lleld. Failure of City to
notify Developer in writing of its consent or disapproval within forty-five (45) calendar days of
written notification by Developer to City of a proposed transfer shall be deemed to be an
approval of the proposed transfer.
22.3 Transfer Not Requiring Approval. Notwithstanding the foregoing, Developer
shall be permitted to assign this MOU without City or RDA consent to an entity or entities
controlled by Developer {or either owner of Developer) or under common control with
Developer {or either owner of Developer}, provided that Developer owns and controls no less
than fifty percent (50%) of such successor entity. Subject to the immediately preceding
sentences, this MOU is not intended to benefit, and shall not run to the benefit of or be
enforceable by, any other person or entity other than the Parties and their permitted successors
and assigns.
Section 23 Governing haw. This MOU shall be governed by and construed in accordance
with the laws of the State of California without regard to principles of conflicts of laws. All
disputes arising hereunder shall be heard in courts having jurisdiction in San Mateo County,
California.
Section 24 Relationship of Parties. The Parties agree that nothing in this MOU is intended
to or shall be deemed or interpreted to create among them the relationship of lessor and lessee,
buyer and seller, or of partners or joint venturers.
Section 25 Captions; Construction. The captions of the sections and articles of this MOU
are for convenience only and are not intended to affect the interpretation or construction of the
provisions hereof. The provisions of this MOU have been jointly drafted by the Parties and will
18
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be construed as to the fair meaning and not for or against any Party based upon any attribution of
such Party as the sale source of the language in question.
Section 26 No Brokers. Each Party warrants and represents to the other that no brolcers have
been retained or consulted in connection with this transaction other than as disclosed in writing
to the other Party. Each Party agrees to defend, indemnify and hold harmless the other Parties
from any claims, expenses, costs or liabilities arising in connection with a breach of this
warranty and representation. The terms of this Section shall survive the expiration or earlier
termination of this MOU.
Section 27 Third-Party Legal Challenge. In the event of any administrative, Legal, ar
equitable action or other proceeding instituted by any person not a party to this M~U
challenging the validity of this MOU or any Project Entitlement, or in the event of a claim
hereunder requiring IDeveloper to indemnify City and/or RDA pursuant to ~ '-,~ ~ o~ ~ a ~~ hereof,
the Parties shall cooperate in defending such action or proceeding. City andlar RDA shall
promptly notify Developer of any such action against City andlor RDA. If City and/or RDA
fails promptly to notify Developer of any legal action against City and/or RDA or if City and/or
RDA fails to cooperate in the defense, Developer shall not thereafter be responsible for City's
defense. The Parties shall use best efforts to select mutually agreeable legal counsel to defend
such action, and Developer shall pay the fees and expenses far such legal counsel {including City
Attorney time and overhead for the defense of such action), but shall exclude City staff overhead
costs and normal day-to-day business expenses incurred by City. In the event City and
Developer are unable to select mutually agreeable legal counsel to defend such action or
proceeding, each Party may select its own legal counsel and Developer shall pay its and City
and/or RDA's Legal fees and costs. Developer's obligation to pay for legal counsel shall not
extend to fees incurred on appeal unless otherwise authorized by Developer. City shall not reject
any reasonable settlement. If City does reject a settlement acceptable to Developer, which
settlement would not increase materially any costs or expenses to be incurred by City or RDA
and does not include a material change to the Project, City and/or RDA may continue to defend
such action at its own cost and risk.
SIGNATURES ~ THE NEXT PAGE
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IN WITNESS WHEREOF, the Parties have executed this Memorandum of Understanding
effective as of the date first written above.
CITY AGENCY
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By:
Name:
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
REDEVELOPMENT AGENCY OF THE
CITY OF SOUTH SAN FRANCISCO,
a public body, corporate and politic
By:
Name:
Executive Director
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency General Counsel
~ 17g73~_~~ 2p Oyster Paint Marina 3~
Memorandum of Understanding
DEVELOPER
OYSTER POINT VENTURES LLC,
a Delaware limited liability company
By: SRI Nine Oyster Point LLC,
a Delaware limited liability company,
its Managing Member
By:
Name:
lts:
By: SKS Oyster Point, LLC,
a Delaware limited liability company,
its Member
By:
Name:
lls:
1179731-11 21 Oyster Point Marina 3?
Memorandum of Understanding
E~IIIBITS TO
MEMORANDUM OF UNDERSTANDING
TOR REDEVELOPMENT OF OYSTER POINT MARINA
by and among
CITY OF SOUTH SAN FRANCISCO,
REDEVELOPMENT AGENCY OF THE
CITY OF SOUTH SAN FRANCISCO
and
OYSTER POINT VENTURES, LLC
SSF DRAFT
5i6~2oo9
MN 1195247-] 0
sf-2634417
Exhibit List
Exhibit A: Existing Parcel Map
Exhibit B: Estimated Protect Schedule
Exhibit C: Concept Plan
Exhibit D: Project Description
Exhibit E: Project Entitlements
Exhibit F: SPA Provisions
Exhibit G: DA Provisions
Exhibit H: Future Parcel Map
Exhibit I: Property Conveyances
Exhibit J: Infrastructure Development and Financing
Exhibit K: Existing Environmental Conditions
Exhibit L: Fees, Taxes, Exactions, Dedicatian'~blig_ations, and Assessments
Exhibit M: Canf dentiality Agreement of April l S, 2009
MN 1195207-10
sf-2634417 ~~
EXHIBIT ~: Existing Parcel Map
This Exhibit depicts the boundaries of the parcels comprising the Marina Property and the
Business Park; the approximate size in acres of each parcel; and the current ownershiplcontrol of
each parcel, including the parcels currently encumbered by the King Leases.
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EXHIBIT B: Estimated Pz-oiect Schedule
This Exhibit sets forth both Parties' reasonable estimates of Project milestones, based on
each Party's good-faith, diligent pursuit of their respective responsibilities, in compliance with
applicable law. These milestones include the items listed below, for illustrative purposes only.
1. Initiate preparation of EIR and Project Entitlements: Third quarter 2009
2. Complete environmental review and RDA and City approval of Project Entitlements:
First quarter 2011
3. Approval and execution of Conveyance Agreement to govern transfer of the King Leases
and Conveyed Property: First quarter 2011
4. Projected date for exchange of interests in King Leases and Conveyed Property pursuant
to Conveyance Agreement: Second quarter 2013
S. Projected date to commence construction of Phase I Infrastructure Improvements:
Second quarter 2413
6_ Projected establishment of a communikies facilities district and issuance of Mello-Roos
Bonds: Second quarter 2013
The Parties recognize that despite their respective diligent good faith efforts, the
achievement of these milestones is subject to circumstances and actions of others beyond their
respective reasonable control, such as actions by other governmental agencies, market
conditions, financing, and other business and economic factors, and that such circumstances will
be taken into account in the OPA and D.A. This estimated schedule does not affect the Parties'
rights or remedies under any termination provisions that may be included in an OPA and/or DA.
sf-2634417 B_~ L f ~.
ExNiBtrr' C: Concept Plan
The Concept Plan depicts the approximate extent and location of major Project elements
(as currently contemplated), including the buildings comprising the Life Sciences Campus and
the Ferry Village/Oyster Point Marina, areas reserved for recreation open space, major
landscaping improvements, commercial uses, a hotel and circulation elements (such as road
configuration).
The Parties recognize that as planning and design progresses and new information arising
from further staff review and public input (including traffic data and information from the
environmental review process) becomes available, the Parties may revise the Concept Plan,
including the location of specific Project components, such as roadway configuration. In that
regard, the Parties intend that any revision; to the Concept Plan should take into account the
following:
• Create a visual `sense of arrival' to the Oyster Point Marina area at tl~e intersection of
Oyster Point Boulevard and Marina Boulevard.
• Create an aesthetically pleasing, safe and eff cient pedestrian and vehicle network
tlu-aughout the Life Science Campus and the Ferry Village/Oyster Point Marina.
• Enhance access to and promote the. use of the SSF Ferry Terminal and implement the
transportation demand management (TDM} requirements identified in Sauth San
Francisco's Zoning Ordinance.
• Design and implement publicly accessible open spaces for portions of the Life Sciences
Campus and for the Ferry Village/Oyster Paint Marina.
• Incorporate superior urban design features, including the relationship of buildings to open
space, the connection between public and private facilities, and connections for visitors to
the Oyster Point Marina and open space areas.
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ExxYBtT D: Project Description
The Parties intend that the elements listed below be included in tl~e Project for purposes
of providing a "project" that can be the subject of detailed environmental review, in compliance
with CEQA, and for determining all other necessary Project Entitlements.
i. Infrastructure and Public .Improvements. The Parties anticipate that the Project will
require infrastructure and public amenities such as road and intersection improvements, water,
sewer, gas, electricity, lighting, parking, trails, parks, and landscaping improvements. These
Infrastructure Improvements are set forth. in more detail in Exhibit J to the MOU.
2. Developer Project.
2.1 Life Sciences Campus. Developer will establish a modern life sciences campus,
including substantial public amenities, across the Developer Property, which will be acquired by
Developer ("Developer Projec#"). Tl~e Developer Project would include research and
development and/or office buildings, generally as indicated on. Exhibit C to the MOU,
predicated upon a Floor Area Ratio ("FA.R"} calculation of 1.25, taking into account certain
areas (1 }reserved far public amenities, including any private streets, beach, park, portion of the
Bay Trail, or oClyer rights ofway, public open space, ar recreational area, and (2} available for
potential future development, and subject to confirmation by the City of the actual square
footage of the parcels comprising the Conveyed Property. Developer acknowledges that City
may determine that development of the Teveloper Project at an FAR of 1.25 may require
mitigation measures in addition to those iimpased by City with respect to development at an FAR
of 1.0. Should City approve, and Developer build, the Developer Project at an FAR of greater
that I.O, Developer agrees that it will pay the cost of such additional mitigation measures. The
Developer Project would also include sufficient structured parking to meet the tenants' parking
needs and City's requirements. The Developer Project will provide an enhanced entrance to the
heart of City's biotechnology district, and an integrated overall appearance to the Oyster Point
area.
2.2 Developer Project PIiasint;. The Developer Project will be constructed in phases,
which maybe generally as set forth below, and which will beset forth in more detail in the OPA
and DA. Developer intends to seek approval for a Master Plan, PIanned Unit Development, or
similar planning document to guide the development of the entire Developer Project_
(a) Phase ID and IID Improvements. Phases ID and IID will each consist of
certain Infrastructure Improvements and building construction. The OPA will provide far
Developer to fund and construct the Phase ID and IID Improvements, and the DA will provide
for Developer. to construct tl~e Phases ID and IID Improvements in accordance with approved
Precise Plans (ar simiIar planning documents as the Parties may mutually agree upon} for each
phase. .
(b} Phases IIID and IVD Improvements. Phases IIID and ND will each
consist of certain Infrastructure Improvernenls and building construction. The DA will provide
for Developer to fund and construct the Phases IIID, and ND Improvements in accordance with
sf-26344'17 p_~ L~ 5
approved Precise Plans {or similar planning documents as the Parties may mutually agree upon}
for each phase.
3. City Project. The portion of the Marina Property to be retained by City ~"City
Property") generally will be planned and developed by City or its designee as follows;
collectively, dais portion of the Project is referred to as the "City Project." The Parties agree
that Developer intends to plan, fund, andl~or develop certain portions of the City Project as set
forth below.
3.1 Fe Viila e/0 stet Paint Marina and Related Facilities. A portion of the City
Property will include doe redevelopment of the Oyster Point Marina and related facilities ("Ferry
Village/Oyster Point Marina"} located near and oriented to the public ferry terminal that is
planned for future operation at Oyster Point. The Ferry Village/Oyster Point Marina will be
designed to serve the ferry passengers, Marina visitors, and the Life Sciences Campus tenants.
Upon completion, the Ferry Village/Uyste:r Point Marina may provide retail and commercial
uses, food and beverage sales, a hotel, ancf other similar or related marina uses. The Parties
anticipate that the Ferry Village/Oyster Point Marina will be constructed and operated by a third
party. The provisions of floe OPA relating; to the Ferry Village/Oyster Point Marina are intended
to allow City to provide infrastructure and financing that would facilitate continued operation
and improvement of the Oyster Point Marina
3.2 Open Space and Recreation_ 'The City Project may include, and the UPA may
provide for, public openlrecreational space uses including, but not limited to, beach access,
athletic fields, and improvements to floe Bay Trail.
3.3 City Project Phasing. Tlae; City Project will be constructed in phases, which may
be generally as set forth below, and which will be set forth in more detail in floe OPA.
(a} Phase IC Improvements. Phase IC~will consist of certain Infrastructure
Improvements. The OPA will provide fo:r Developer to construct the Phase IC Improvements,
with financial commitments from RDA and Developer to fund portions of such Improvements.
(b) Phase IIC Improvements_ Phase IIC will consist of certain Infrastructure
Improvements and development of buildings and other public amenities. The City and/or RDA,
at its discretion, may undertake to constnact the Phase ITC Improvements, with financial
commitments from RDA and Developer to fund portions of such Improvements at the beginning
of Phase IIID and Phase IVD.
4. environmental Review. The Parties intend that at the time program-level environmental
review is completed for the entire Project under CEQA, aproject-level environmental impact
report will also be prepared for Phases IC and ID (collectively, "Phase I"} of the Project.
Subsequent project-level environmental review will be conducted in compliance with CEQA
prior to construction of any later phases of floe Project.
5. Compatible Uses. The Parties will ensure the compatibility of uses on the City Property
with floe uses of the adjacent Developer Property. This may include appropriate restrictions on
proposed uses of certain portions of the City Property so as to avoid physical and design conflicts
with the uses contemplated on the Developer Property.
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ExvtBIT E: Project Entitlements
The Parties anticipate that the Project will require the following entitlements, approvals,
authorizations, and agreements from the City, RDA, and other regional, state, and federal entities
("Project Entitlements"}, as described below.
I . Amendments to the City General Plan. The Parties anticipate that it may be necessary
to amend the City's i 999 General Plan as follows:
l .1 More clearly permit research and development uses within areas designated for
Coastal Commercial use.
1.2 Permit development withiin the Developer Property at an FAR of 1.25.
1.3 Additional, minor amendments to the General Pian to ensure conformity between
the Project and the General Plan.
2. Amcndments to Oyster Point Specific Plan. The Parties intend to amend, replace, or
repeal the existing Oyster Point Marina Specific Plan ("Specific Plan"} to facilitate development
of the Project. The Specific Plan may bE: modified in the following ways {references to the
relevant sections ofthe existing Specific Plan are included in parentheses):
2.1 Allow office, research an+~ developmentllaboratory, commercial, retail, eating and
drinking establishments, and hotel use on the Conveyed Property and City Property (B.1},
including without limitation all uses listed in Section 20.59.030 of the SSFMC.
2.2 Allow for street configuration different than that depicted on the existing Specific
Plan Map {B.2).
2.3 Allow certain buildings on the Conveyed Property to exceed ffty (50) feet in
height, consistent with Project requirernc,nts, the Zoning Ordinance, and FAA regulations (C.4}.
2.4 Modify parking rate requiirements as necessary, consistent with Project
requirements and City regulations {C.5).
2.5 Modify or eliminate requiirement for Precise Plan {A.S.b; G.1 - G.10)_
3. Amendments to Zoning Ordinance.
3.1 Oyster Point Marina Specif c Plan District. To the extent that the Oyster Point
Specific Plan is amended, pursuant to Section 2 above, it will be necessary to amend the
corresponding regulations in the Zoning Ordinance for the Oyster Point Specific Plan District.
3.2 Use Regulations and Development Standards. Because the City is undergoing a
comprehensive Zoning Ordinance Updai:e, it is not known at this time whether it will be
necessary to seek amendments to the usE: regulations ar development standards applicable to the
Project area, outside of the Oyster Paint Specific Plan District. The Parties intend to meet and
confer to consider the need for potential Zoning Ordinance amendments, and options for
sf-2634417 E-1
establishing continuing specific permissible uses, as the Zoning Ordinance Update progresses
and after file City enacts an updated Zoning Ordinance.
Amendments to Redevelopment Plan for Downtown/Central Project Area.
4.1 Debt Limits_ The RDA m<zy seek an amendment to the Redevelopment Plan for
the Added Territory to the Downtown/Ce:ntral Project Area, which applies to the Marina
Property, for the purpose of increasing thc: limitation on outstanding bonded indebtedness.
42 Boundaries_ The RDA may also consider adjusting the boundaries of the
Downtown/Central Project Area in order to include part or all of the Business Park within the
Project Area.
5. Development Agreement. The Parties intend to negotiate and prepare a Development
Agreement ("DA"} and, following completion of environmental review under CEQA, will
present the DA for consideration by the City Council in accordance with the provisions of
Government Code section 65$64 et seq_ 'The intent of the DA is to provide Developer a vested
right to develop the Developer Property. Tentative initial terms of the DA are set forth in
Exhibit G to the MOU.
G. Tentative Subdivision/Parcel Map.
G.1 The Parties intend to obtain approval for a Tentative and Final Subdivision
Map/Parcel Map in order to effectuate the conveyance of the Conveyed Property and facilitate
the redevelopment Project.
6.2 The Parties recognize that if the new parcels created by any Subdivision Map ar
Parcel Map would not meet the City's minimum subdivision standards, as set forth in Chapter
1.4.16 of the Municipal Code, then the City will require a Use Permit far those parcels based on
approval of a Planned Unit Development.
7. Master Plan or Similar; Precise Plan or Similar.
7.1 Developer intends to seek approval far a Master Plan, Planned Unit Development,
or similar planning document to guide the development of the entire Developer Project.
7.2 To the extent that any furi:~re Oyster Point Specific Plan, as amended pursuant to
Section 2 above, requires submittal and approval of a Precise Plan prior to construction or
exterior modification of any structure, the Parties anticipate that Developer will seek approval of
a Precise Plan for development of the Developer Project on the Conveyed Property.
Additionally, t]ie Parties may agree that approval of Precise Plans or similar planning documents
maybe required for planning and development of specific phases of the Developer Project_
7.3 The Parties intend that t}ie specific form of the planning documents contemplated
by this Section, and the appropriate process for obtaining approval of those plans, will be set
forth in the Zoning Ordinance, Specific Plan, or, as appropriate, DA_
~l~
sf-2634417 E-2
$. Relocation andlor Vacation of City Streets, Rights-of--Way, and Public Utilities. In
order for development of the Project to occur in accordance with the Concept Plan, portions of
certain public rights-of--way and public utilities that run through the Property must be vacated by
the City, and the vehicular circulation on the Property must be reconfigured. Without limiting
City's discretion in its consideration of a future application For the relocation or vacation of any
public rights-of--way or public utilities, the City shall accept and process in good faith any such
application submitted by Developer in connection with the Project.
9_ Use Permit (Together wit}t a Transportation Demand Management Program).
Developer intends io seek, based on the generation of over 100 average daily vehicle trips
associated with the Life Sciences Campus, a Use Permit far uses at the Life Sciences Campus_
In conjunction with the Use Permit, Developer will also seek approval far a Transportation
Demand Management Program as provided in Chapter 20.120 of the current Zoning Ordinance,
and as thane provisions may be amended as part of the Zoning Ordinance Update.
10. D_ esign Review. The Parties intend to seek Design Review approval for development of
each component of the Project, in accordance with Chapter H.85 of the current Zoning
Ordinance, and as those provisions maybe amended as part of the Zoning Ordinance Update.
11. Agreements with Harbor District.
11.1 City/Harbor District MOU_. The City and RDA intend to enter a Memorandum of
Understanding with the Harbor District {"CitylHarbor District MOU").
1 l .2 Amendments to JPA. Tlae City intends to seek amendments to the Joint Powers
Agreement (as subsequently amended} dated November 11, l 977, between the City and Harbor
District ("JPA"). T}~e proposed amendments will eliminate the applicability of the JPA to the
Conveyed Property and the IIarbor District's authority to manage, operate and maintain the
Conveyed Property, and will facilitate continued operation of the Oyster Point Marina facilities
(buildings, docks, slips, parking and related facilities).
12. Financing for Infrastructure.
12.1 Approval of Community racilities District. The Parties anticipate that the City
will initiate proceedings to form a comnnunity facilities district and levy a special tax an the
Developer Property to provide financing; for a portion of tl~e Infrastructure Improvements.
12.2 Approval of Redeveloprrlent rinancing. The Parties anticipate that, pursuant to an
OPA, RDA will pledge a specified amount of funding for a portion of the Infrastructure
Improvements_
13. Other City Approvals. The Parties understand that additional discretionary approvals
may be required from the City beyond those listed above.
sf-263A417 E_3 ~ i
14. Other Government/Public Approvals.
14.1 U.S. Army Corps of Engineers.
(a} Clean Water Act Section 4Q4 Authorization. Authorization will be
required if Project involves discharge of ;any dredge/fill material to the San Francisco Bay, and
potentially for other construction-related activities.
(b) Rivers and Harbors Act Authorization. Authorization will be required if
Project involves work on manna facilities and/or dredging activities.
I4.2 Bay Conservation and Development Commission.
{a) Coastal Development Permit. A Coastal Development Permit will be
required for development activities occurring within the 100-foot shoreline band subject to
BCDC jurisdiction.
(b) Amendments to Bay Plan_ The Parties do not anticipate the need to seek
specific amendments to the Bay Plan; however, such amendments may be necessary depending
on specific activities that may be proposc;d to occur within the 100-foot shoreline band.
14.3 San Francisco Bay Re Tonal Water Quality Control Board.
(a} Landfill Closure Approval. Approval will be required for any new
activities that may affect the integrity of the previously-closed Oyster Point Landfill, and for any
new closure and post-closure maintenanc:e activities relating to the Landf 11.
(b) Waste Discharge Requirements. Waste Discharge Requirements will be
required to govern discharges subsequent to landf Il closure activities.
14.4 Bay Area Air Quality_Management District _ Methane Exemption. Approval will
be required to obtain an exemption from Bay Area Air Quality Management District review and
permitting requirements relating to methane emissions from the closed Oyster Point land£II_
l4_S CauntV of San Mateo -- Health Services Department.
(a) Landfill Post-Closure Land Use Approval. Approval will be required for
any land uses within 1000 feet of the closed Oyster Point Landfill, or occurring above disposed
waste.
(b) Gas Monitoring and Control Program Approval. Approval wilt be
required pursuant to landf 11 closure.
14.6 California Department of Public Health. Approval will be required for siting of
drinking water pipelines on the Developer Property and City Property.
sf-2634417 E-4
EXHIl3I'f F: OPA Provisions
Tile Parties intend that any Owner Participation Agreement ("OPA") entered by the
Parties to govern the development of the ]Project will incorporate substantially the following
provisions. These provisions are not exhaustive and maybe expanded as the Parties reach
agreements on other aspects of the Project, and as may be necessary following preparation of the
environmental impact report far the Proje,ct_ The Exhibits referred to in this Exhibit F will be
prepared in conjunction with the Owner Participation Agreement itself The improvements to
existing facilities on the 1{ing Leases contemplated by Section 9.2{c)(ii) is included with this
Exhibit F as "Oyster Point -King Leaseholds Estimate of Major Capital Expenditures" dated
April 24, 2009, and will be included as an Exhibit to the OPA. ~1Vote: to the extent that cei~tai~z
defined terms appeal- in both the bode of the 1bfOU a~td this Exhibit, those ternis are inte~zded tG
ha~7e the same meanings.)
l . Parties. The parties to the OPA shall be the Redevelopment Agency of the City of South
San Francisco ("RDA") and Oyster Pointt Ventures LLC ("Developer"). RDA and Developer
each may be referred to herein as a "Parity," and collectively as the "Parties."
2. Redevelopment Proiect. The proposed redevelopment project {"Redevelopment
P~•oject") contemplated by this Agreement is the redevelopment of that certain portion of the
Oyster Point Marina Specific Plan Area located within the Downtown/Central Redevelopment
Project Area, conveyed in fee by City to RDA and then by RDA to Developer, and as depicted
on Exhibit _ ("Conveyed Property"). Specifically, the Redevelopment Project will consist of:
(i) the construction of certain public infrastructure improvements and amenities (the "Phase IC
Improvements") set forth in Section 2.1. below; and {ii) the construction of certain privately
owned buildings and associated improvements on the Conveyed Property {die "Phase ID
Improvements") set forth in Section 2.2: below.
2.1 Phase IC Improvements. The Phase IC Improvements consist of those
improvements identified as part of "Phase IC" in Exhibit J to the Memorandum of Understanding
("MOU") entered among the City of South San Francisco ("City"), RDA, and Developer,
effective as of , 2009, and in Exhibit ` to this OPA. The Phase IC Improvements include:
(a) Streets and utilities {including grading, subgrade, base, paving, curb and
sidewalk, street lights, storm water, sanitary sewer, combined trench for gas electric, and
telecom, impermeable utility trench at sanitary landfill areas, and temporary streets and utilities)
in the following locations:
{i) At the fut~ire street "hub" area (as identified in Exhibit ~
(ii} Extending; east from the hub across die Oyster Point Marina area
{b) Repair of die cla}+ cap covering the Oyster Point Landfill on specified
Clty-owned parcels;
(c} Repaving of existing parking areas at specified City-owned parcels;
sr-zs3aa~7 F-~ ~
(d} Grading and construction of recreational fields on specified City-owned
parcels;
{e) Demolition and grading at the future "hotel site" on specified City-owned
parcels; and
(f) Landscaping of the beacl~/park area on specified City-owned parcels.
2.2 Phase ID Improvements. 'The Phase ID Improvements, which are described in
more detail in Exhibit _, include:
{a) Repair of the clay cap covering the Oyster Point Landfill on the Conveyed
Property;
(b) Remediation of the area identified as "Sump I";
(c) Installation of metlhane control and monitoring systems on the Conveyed
Property;
(d) Relocation of refuse on tl~e Conveyed Property to accommodate new
buildings; and
(e) Development of buildings with no less than five-hundred eight thousand
(508,000) square feet for research and development and/or off ce use.
23 Phase IlC Improvements. The Phase IIC lmprovements consist of those
improvements identified as part of "Phase IIC" in Exhibit J to the MOU, and in Exhibit _ to this
OPA. The Phase IIC Improvements include:
(a} Landscaping of c~:rtain City Property within the jurisdiction of the San
Francisco Bay Conservation and Development Commission ("BCDC"};
{b) Landscapetune-u:p atnon-paved, non-BCDC City Property;
(c) Sewer pump station at the Marina;
(d) Clay cap repair at specified City Property at the Marina; and
(e) Repaving of existing parking areas at specified City Property at the
Marina.
2.4 Project Consistency With Redevelopment Plan. Developer has submitted to RDA
a Master Plan far development of the Developer Project (as defined in the MOU}, of which the
Redevelopment Project is a part. As part of the OPA, RDA will make a finding that the
Developer Project shown on the Master Plan is consistent with the Redevelopment Plan for the
Downtown/Central Redevelopment Project ("Redevelopment Plan").
sf-2634417 F-2 ~C ~,
3. Financing of Phase IC Improvements.
3_I Improvement Costs_ The Parties have estimated the cost of (i} the Phase IC
Improvements (the "Phase IC Improvennent Costs"), and (ii) the Phase ID Improvements {the
"Phase ID Improvement Costs" and, together with the Phase IC Improvement Costs, the
"Improvement Costs"}. Tl~e amount of the Improvement Costs shall be: (i) further ref ned in
connection with the preparation of detailed plans and specifications for the Phase IC
Improvements and the Phase ID Improvements, {ii} approved by both Parties, and
(iii) memorialized in tl~e OPA based on such updated cost estimates.
3.2 Payment of Phase IC lmprovement Casts. RDA will pay to Developer an amount
equal to RDA's proportional contribution to the Phase IC Improvement Costs (currently
estimated at approximately sixteen million six-hundred forty-one thousand dollars
($16,641,000)) (the "RDA Fending Requirement"}, subject to modification and further
refinement to the Improvement Costs and as mutually agreed upon by the Parties.
Notwithstanding the foregoing, Developer acknowledges and agrees that RDA will only be
obligated to pledge and pay the RDA Funding Requirement in the event that Developer has
undertaken or completed development avid construction of such portion of the Phase IC and/or
Phase ID Improvements as set forth in the Project Schedule attached as Exhibit ~. Accordingly,
the payment system for the RDA Funding Requirement, including a schedule for phased
payments during each phase of the Rede~/elopment Project, consistent with the Schedule of
Performance, will be as set forth in Exhibit _ RDA and Developer shall each be responsible
for funding their respective proportional shares of all Phase IC Improvement Costs not paid by
the RDA Funding Requirement. Developer shall be responsible far all Phase ID Improvement
Casts not paid by the RDA Funding Requirement. Any cost savings for the Improvement Costs
will be retained by the Party responsible for those Improvement Costs (or, as appropriate, by
each Party in proportion to its responsibility for such Improvement Costs)_ The Parties intend to
share data and costs related to the Phase :IC Improvements as set forth in Exhibit
3.3 RDA Budget. RDA will iinclude the RDA Funding Requirement pledge in its
annual budget and will make timely application for and submit all documentation required to the
allocation to RDA of the RDA Funding I~equirement within tl~e times and in the amounts
required to fulfill RDA's obligations hereunder. RDA will take all actions and budget all
amounts, including prepayments or additional payments if necessary, in order to fulfill and
satisfy RDA's obligations under the 1VIOU and this ~OPA prior to expiration of any applicable
time limits with respect to RDA's ability to do sounder the Redevelopment Plan.
3.4 Phase IIC Improvement C:osts_ The Parties have estimated the cost of (i} the
Phase IIC Improvements {the "Phase IIC Improvement Costs"}, which such amount of the
Improvement Costs shall be: {i) further ref ned in connection with the preparation of detailed
plans and specifications, (ii) approved by both Parties, and (iii) memorialized in the OPA based
on such updated cost estimates.
4. Financing of Phase IIC Improvement Costs.
4.1 Phase IIC Improvement Costs. The Parties have estimated the cost of (i} the
Phase IIC Improvements (the "Phase IIC Improvement Costs"), whicl} such amount of the
st-2fi34417 F-3 ~ j3
Impravement Costs shall be: (i) further relined in connection with the preparation of detailed
plans and specifications, (ii) approved by lboth Parties, and (iii) memorialized in the 4PA based
on such updated cost estimates.
42 Payment of Phase IIC Improvement Costs. Developer will pay to RDA an
amount equal to Developer's contribution to the Phase IIC Impravement Costs (currently
estimated at approximately Ten Million Nfine I-Iundred Thirty Thousand dollars ($10,930,000))
(the "Developer Funding Requirement"), subject to modification and further refinement to the
Phase IIC Improvement Costs and as mutually agreed upon by the Parties, in two installments as
follows: (i) Five Million Dollars 05,000,000) upon commencement of Phase IIID of the Project,
and (ii) Five Million Nine Hundred Thirty Thousand dollars ($5,930,172) upon commencement
of Phase ND of the Project. Notwithstanding the foregoing, RDA acknowledges and agrees that
Developer will only be obligated to pay tl.~e Developer Funding Requirement in the event tl.at (i)
Developer has completed development and construction of the Redevelopment Project and Phase
IID as set forth in the Project Schedule attached as Exhibit ^, and (ii} City has undertaken
development of Phase IIC. Accordingly, such installment payments of the Developer Funding
Requirement will be consistent wikh the :ichedule of Performance as set forth in Exhibit
RDA shall be responsible for all P11ase IIC Impravement Costs not paid by the Developer
Funding Requirement.
5. Development and Construction ot'Pro'ect.
5.1 Development Schedule acid Pliasin~. Developer shall commence and complete
construction of the Redevelopment Project and shall satisfy all ot]ier obligations of Developer
under the SPA within the time periods set forth in this Section and the Schedule of Performance
attached- hereto as Exhibit _ and incorp+arated by this reference, unless such time periods maybe
extended upon mutual written consent of the City and the Developer based upon force majeure_
Without limiting the foregoing, Developer shall commence construction within sixty {60)
ca]endar days following conveyance of the Conveyed Property to Developer, and shall diligently
prosecute to completion the development and construction of the Redevelopment Project in
accordance with the Schedule of Perfornnance, unless an extension is approved by RDA_ Each
party shall use diligent and commercially reasonable efforts to perform the obligations to be
performed by such party pursuant to this Agreement within the times periods set forth herein,
and if no such time is provided, within a~ reasonable time, designed to permit issuance of a final
Certificate of Completion.
5.2 Performance and Payment Bands.
{a) Prior to commen+:ement.of the Redevelopment Project, Developer shall
cause Developer's contractor to deliver to RDA copies of payment bond(s) and performance
bond(s) or other surety instrument, acceptable to RDA in its sole discretion, issued by a reputable
insurance company licensed to do business in Califomia, each in a penal sum of not less than
one-hundred percent (100%) of the scheduled cost of construction for such phase of the
Redevelopment Project (the "Performance Security"). The Performance Securty shall name
RDA as a co-obligee. If, and to the extent, Developer is required to post a performance bond or
other security in favor of the City pursuant to California GovernmenE Code sections 66499-
66499.10 to guaranty completion of the: Phase IC Improvements (the "City Security"), the
sf-2fi34417 ~-~ ~~
posting of such City Security shall satisiEy the requirements of this Section S.2 for such Phase IC
Improvements.
{b} In lieu of the Performance Security, Developer may submit evidence
satisfactory to RDA of the Developer's ability to commence and complete the construction of the
Phase ID Improvements in the form of a~n irrevocable letter of credit, pledge of cash deposit,
certificate of deposit, or other marketable securities held by a broker or other financial
institution, with signature authority of RDA required for any withdrawal, or a completion
guaranty in a form and from a guarantor acceptable to RDA. Such evidence must be submitted
in approvable form in sufficient time to allow RDA to review and approve the information
within the time specified in the Schedule of Performance.
(c) Upon completion by Developer of any distinct portion of the
Redevelopment Project for which a Certificate of Completion (defined below) is issued, RDA
shall release such portion of the Perfornance Security that is equal to the ratio of the cost of the
completed improvements to the total Improvement Costs.
S_3 Insurance. Prior to the commencement of construction for each Phase of the
Redevelopment Project, except as otherwise stated herein, on the Conveyed Property or any
portion thereof, Developer shall furnish or cause to be furnished to RDA appropriate certificates
of the following insurance policies:
(a) Workers' Compensation. During the term of the OPA, Developer shall
fully comply with the terms of the laws of the State of California concerning workers'
compensation. Said compliance shall include, but not be ]invited to, maintaining in full force and
effect one or mare policies of insurance insuring against any liability Developer may have far
workers' compensation. Said policy shall also include employer's liability coverage no less than
$1,000,000 per accident.
(b) General Liability Insurance. Developer shall obtain at its sole cost and
keep in full force and effect during the term bf the OPA commercial genera] liability insurance in
the amount of $5,000,000 per occurrence for bodily injury, personal injury, and property
damage. Said insurance shall provide (li) that RDA, and its officers, agents, employees and
volunteers, shall be named as additional insureds under the policy, and (2} that die policy shall
operate as primary insurance, and that {3) no other insurance effected by RDA or other named
insureds will be called upon to cover a loss covered thereunder.
(c} Automobile Liability Insurance. Developer shall obtain at its sole cost and
keep in full force and effect during the term of the OPA automobile liability insurance in the
amount of $3,000,000 per occurrence for bodily injury and property damage. Said insurance
shall provide (1}that RDA, and their officers, agents, employees and volunteers, shall be named
as additional insureds under the policy, and (2} that the policy shall operate as primary insurance,
and that (3} na other insurance effected by RDA or other named insureds will be called upon to
cover a Ioss covered thereunder.
(d) Course ofConstn.rction Insurance. Developer shall obtain at its sole cost
and keep in full force and effect during 'the course of construction, Course of Construction
sf-2634447 F--S .S~
insurance with policy limits no less than X5,000,000 without any coinsurance penalty provisions
in the standard "Builders Rislc" form policy. RDA shall be named as loss payee and the insurer
shall waive all rights of subrogation against RDA.
(e) Certificates of lnsurance. Developer shall file with RDA, prior to
commencement of construction on the Conveyed Property or any portion thereof or prior to any
access to or entry on the Conveyed Property as authorized by the OPA, certificates of insurance
which shall provide that no cancellation, major change in coverage, expiration, or nonrenewal
will be made during the term of the OPA, without thirty (30) calendar days written notice to
RDA prior to the effective date of such cancellation or change in coverage (except that only ten
(10) calendar days prior notice shall be required for cancellation due to non-payment of
premiums). Developer sl}all deliver copies of the insurance policies upon RDA request.
(f) Other Requirements. Developer shall also furnish or cause to be furnished
to RDA evidence satisfactory to RDA that any contractor with whom it has contracted for the
performance of work on the Conveyed Property carries the same insurance required of
Developer hereinabove, and in the amour.~ts of coverage specified, and each general contractor
shall be required to obtain certification of~ insurance from all subcontractors.
5.4 RDA Right of Access. For the purposes of assuring compliance with the OPA,
representatives of RDA shall have the reasonable right of access to the Conveyed Property
without charges or fees and at normal construction hours during the period of construction for
the purposes of the OPA, including, without limitation, inspection at its own expense of the work
being performed in constructing the Phase IC Improvements. Such representatives of RDA shall
be those who are so identif ed in writing by the Executive Director of the RDA or leis/her
designee.
5.5 Equal OpportunilY in Contracting Construction. During the construction of the
Phase IC Improvements, Developer and all oi'Developer's subcontractors shall not discriminate
on the basis of race, religion, sex, sexual orientation, or national origin in the hiring, firing,
promoting or demoting of any person engaged in the construction work and shall require its
contractors and subcontractors to refrain from discrimination on such basis.
5.6 Certificate of Completion. Promptly after substantial completion {subject to
correction of punch list items) of all can:}truction and development of all or any distinct portion
of the Phase IC Improvements or the Phase ID Improvements capable of independent use,
Developer shall provide to RDA an instrument sa certifying. Upon receipt ofsuch certificate,
RDA shall confine that such portion of t:he Redevelopment Project has been substantially
completed, which confirmation may be based upon inspection by the Chief Building Official and
fire Marshall of the City, and upon such confirmation shall furnish Developer with a final
Certificate of Completion, substantially in the form attached hereto as Exhibit ~ (the
"Certificate of Completion"). The Certificate of Completion shall be, and sl~all so state,
conclusive determination of satisfactory completion of the construction of the applicable portion
of the Phase IC Improvements and the Phase ID Improvements required by the OPA upon the
Conveyed Property. Upon completion of all Phase ID Improvements and Phase ID
Improvements in the Redevelopment Project, RDA shall issue a final Certificate of Completion
sf-2634417 F-6 `S~
confirming such completion. The final Certificate of Completion shall be in such form as to
permit it to be recorded in the C)ffice of the County Recorder of San Mateo County.
If RDA refuses or fails to furnish a Certificate of Completion after written request from
Developer, RDA shall, within ten (10} business days after receipt of such written request,
provide Developer with a written statement of the reasons RDA refused or failed to furnish a
Certificate of Completion. The statement shall also contain RDA's opinion of the action
Developer must take to obtain a Certificate of Completion. If RDA shall have failed to provide
such written statement within said 10-day period, Developer shall be deemed entitled to the
Certificate oi'Completion.
A Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of Developer to any l~~older of a mortgage or any insurer of a
mortgage securing money loaned to finance the Redevelapment Project or any part thereof
5.7 Easements. Developer hereby agrees to execute appropriate documents providing
for the recordation ofpreviously identified easement agreements, at no cost to City or RDA, far
the Please IC Improvements to be construicted on the Conveyed Property.
5.8 Compliance with Laws. Developer will carry out the construction of the
Redevelopment Project in conformity with alI applicable stale, local and federal laws, rules,
statutes, ordinances and regulations, inchuding without limitation, all applicable state and federal
labor laws and standards, a]1 applicable dlisabled and handicapped access requirements, including
without limitation, the Americans with Disabilities Act, 42 U.S.C_ Section 12101, et seq., and, as
provided in the concurrently executed Development Agreement between City and Developer,
City's zoning and development standards, building, Public Art ordinance, plumbing, mechanical
and electrical codes, and all other applicable provisions of the South San Francisco Municipal
Code (all of the foregoing, "Appiicabte :Laws").
5.9 RDA Disclaimer. Developer acknowledges t}sat RDA is under no obligation, and
RDA neither undertakes nor assumes any responsibility or duty, to Developer or to any third
party to in any manner review, supervise, or inspect the progress of construction or the
operations of the Redevelapment Project,. Developer and all third parties shall rely entirely upon
its or their own supervision and inspection in determining the quality and suitability of the
materials and work, and the performance of architects, subcontractors, and material suppliers and
all other matters relating to the construction and operation of the Redevelopment Project. Any
review or inspection undertaken by RDA is solely far the pu~pase of determining whether
Developer is properly discharging its obligations to RDA, and shall not be relied upon by
Developer or any third party as a warranty or representation by RDA as to the quality of the
design or construction of the Phase IC Improvements or otherwise.
5.10 Indemnity. Developer will defend, indemnify and hold harmless RDA and its
elective and appointive boards, commissions, off cers, agents, attorneys, consultants and
employees, and all of their respective successors and assigns ("Indemnitees"} from and against
any and all present and future claims, demands, suits and actions at law or in equity, and losses,
liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, and costs and
damages of every kind, nature and descriiption (including but not limited ko attorneys' fees and
~~
sf-263447 ~_7
court costs; with counsel reasonably acce~rtable to RDA}, and administrative, enforcement or
judicial proceedings, whether known or unknown (collectively, "Claims"} arising from or in
connection with Developer's failure to cornpiy with the Agreement and/or with all Applicable
Laws relating to the construction or operation of the Redevelopment Project, including, without
limitation, all applicable federal and state labor laws and standards, or in any other manner
relating to development of the Redevelopment Project, or Developer's activities or performance
under the OPA whether such activities or performance are by Developer of by anyone directly or
indirectly employed yr contracted with by Developer and whether such Claim shall accrue or be
discovered before or after termination of the OPA. Developer's indemnity obligations under this
Section will not extend to Claims resulting; solely from Indemnitee's gross negligence or willful
misconduct. This Section 5.10 steal l survive the termination of the OPA.
5.11 Liens and Stop Notices. Until the issuance by RDA of a certificate of completion
far the Redevelopment Project, Developer shall not allow to be placed on the Conveyed Property
or any part thereof any lien or stop notice on account of materials supplied to or labor performed
on behalf of Developer. If a claim of a Ile:n or stop notice is given or recorded affecting the
Conveyed Property, Developer shall withiin twenty (20} calendar days of such recording or
service: {a) pay and discharge the same; or (b} effect the release thereof by recording and
delivering to the party entitled thereto a surety bond in sufficient form and amount or provide
other assurance reasonably satisfactory to RDA that the claim of lien or stop notice will be paid
or discharged.
5.12 Right of RDA to Satisfy Liens on the Conveyed Property. After the conveyance
of the Conveyed Property, if Developer fails to satisfy or discharge any lien or stop notice on the
Conveyed Property pursuant to Section 5.11 above, or provide reasonable assurances to RDA
with respect to same, RDA shall have the right, but not the obligation, to satisfy any such liens or
stop notices at Developer's expense and without further notice to Developer. In such event
Developer shall be liable far and shall promptly reimburse RDA for such paid lien or stop notice_
Alternatively, RDA may require Developer to immediately deposit with RDA the amount
necessary to satisfy such lien or claim pending resolution thereof. RDA may use such deposit to
satisfy any claim or lien that is adversely determined against Developer. Developer shall file a
valid notice of cessation or notice of completion upon cessation of construction of the
Redevelopment Project for a continuous period of thirty (30) calendar days or more, and shall
take all other reasonable steps to forestall the assertion of claims or liens against the Conveyed
Property or the Redevelopment Project improvements. RDA may (but has no obligation to)
record any notices of completion or cessa.tian of labor, or any other notice that RDA deems
necessary or desirable to protect its interest in the Conveyed Property and the Redevelopment
Project improvements. All rights and obligations under this Section 5.12. and under Section 5.1 l
hereof shall be subject and subordinate tet the rights of and lender holding a lien or security
interest in the Conveyed Property or portion thereof.
S.13 Subordination_ Any lien created or claimed under the provisions of the OPA shall
expressly be made subject and subordinate to the rights of any lender whose is used for financing
tl~e acquisition or development of the Conveyed Property.
6. Default; Reversion. Failure or delay by either Party to perform any material term or
provision of the OPA constitutes a defaullt under the OPA. The Party who so fails or delays must
sf-2634417 ~-$
immediately commence to cure, correct or remedy such failure or delay and shall complete such
cure, correction or remedy with reasonable diligence. The injured Party shall give written notice
of default to the party in default specifying the default complained of by the injured Party.
Except as required to protect against further damages and except as otherwise expressly provided
in the OPA, the injured Party may not institute proceedings against the party in default until
thirty (30) calendar days after giving suc;h notice (or such longer time as may reasonably be
required to cure such default, provided k[ie Party in default is using diligent efforts to cure such
default). During such thirty (30) calendar day period the Party receiving notice shall not be
deemed to be in default. Failure or delay in giving such notice shall not constitute a waiver of
any default or of any such rights or remedies or deprive such Party of its right to institute and
maintain any actions or proceedings that: it may deem necessary to protect, assert or enforce any
such rights ar remedies.
G.1 Event of Default of Developer. The occurrence of any of the following shall
constitute a breach or default under the terms of the OPA by Developer:
(a} Developer transfers or assigns or attempts to transfer or assign the OPA or
any rights therein or in the Conveyed Property and/or the Improvements in violation of the OPA;
(b) There is a change in the ownership or identity of Developer or the parties
in control of Developer or the degree thereof contrary to the provisions of the OPA;
{c) Developer does not maintain the necessary equity capital, as set forth in
the Financing PIan, and mortgage financing for acquisition and development of the Conveyed
Property in satisfactory form and in the manner and by the date provided in the OPA;
(d) Developer does neat take title to the Conveyed Property under tender of
conveyance by City pursuant to the terms of die OPA;
(e) Prior to the issuance of a Certificate of Completion, a default or breach
arises under any loan secured by a mortgage, deed of trust or other security instrument recorded
against the Conveyed Property or part tl;~ereof and remains uncured beyond any applicable cure
period such that the holder of such security instrument has exercised or given notice of its intent
to exercise the right to accelerate repayment of such loan;
{f) Developer fails tef commence or complete construction of the
Redevelopment Project within the times set forth in the Schedule of Performance (as such may
be extended pursuant to mutual agreemc;nt of the Parties), or once construction has corrunenced,
Developer abandons or suspends constnickion of any Phase of the Redevelopment Project prior
to completion of such Phase of construction for a period of sixty (60) days;
{g) Developer fails to maintain insurance on the Conveyed Property and the
Redevelopment Project as required by the OPA;
(h) Following conveyance of the Conveyed Property to Developer, if
Developer fails to pay taxes or assessments due on the Conveyed Property ar the Redevelopment
Project or fails to pay any other charge that may result in a lien on the Conveyed Property or the
Redevelopment Project, and Developer :fails to cure such default within thirty (30} days.
sf-2634417 ~_g ~~
(i} Any representation or warranty contained in the OPA or in any financial
statement, certif cate or report submitted t:o RDA in connection with the OPA proves to have
been incorrect in any material and adverse; respect when made and continues to be materially
adverse to the RDA;
{j) Developer shall have assigned its assets for the benefit of its creditors
(other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution
on any substantial part of its property, unless the property so assigned, sequestered, attached or
executed upon shall have been returned o.r released within sixty (50) days after such evenk
(unless a lesser time period is permitted fear cure under any other mortgage on the Conveyed
Property, in which event such lesser time period shall apply under this subsection as well) or
prior to any sooner sale pursuant to such sequestration, attachment, or execution;
{k} A court having jurisdiction shall have made or entered any decree or order
{i} adjudging the Developer to be bankrupt or insolvent, (ii) approving as properly filed a petition
seeking reorganization of the Developer or seeking any arrangement for either of the Developer
under the bankruptcy law or any other applicable debtor's relief law or statute of the United
States or any state or other jurisdiction, {iii) appointing a receiver, trustee, liquidator, or assignee
of the Developer in bankruptcy or insolvency or for any of its properties, or {iv} directing the
winding up or liquidation of the Developer;
(i} Developer is in breach or default with respect to any other material
obligation, term, .provision, covenant or agreement contained in the OPA.
Upon expiration of Developer's night to cure as provided in Section ~, the OPA, and any
rights of Developer or any assignee or trainsferee in the OPA pertaining thereto or arising
therefrom with respect to RDA, may, at the option of RDA, be terminated by RDA by written
notice thereof to Developer.
b.2 Event of Default of RDA_ Provided that the Developer has satisfied its
obligations hereunder, the following events shall constitute a breach or default by RDA.
(a) City, without good cause, fails to convey the Conveyed Property to
Developer within the time and in the manner set forth in the OPA and Developer is otherwise
entitled by the OPA to such conveyance; or
(b} RDA breaches any other material provision of the OPA and fails to cure
such breach within any applicable cure period.
6.3 Cure of Default. In the event of an alleged default or breach of any terms or
conditions of the OPA, the Party alleging; such default or breach shall give the other Party notice
in writing specifying the nature of the alleged default and the manner in which said default may
be satisfactorily cured and a reasonable period of time in which to cure, that shall in no event be
less than sixty (b0) days, or if such default cannot reasonably be cured within sixty (GO) days, a
period of time that is cuff cient to allow :for such cure. During any such period, the Party charged
shall not be considered in default far purposes of termination or institution of legal proceedings.
1~
sf-2G344 ~7 F-10
6.4 Legal Actions; Specific Performance; Limitation on Damages. Upon the
occurrence of a Developer event of default and the expiration of the applicable cure period, RDA
shall have the right, in addition to any other rights or remedies provided in the OPA and subject
to any applicable restrictions set forth in the OPA, to institute an action at law or in equity to
seek specific performance of the terms of the OPA, or to cure, correct, prevent or remedy any
default, to recover damages for any default, or to obtain any other remedy consistent with the
purpose of the OPA; provided, however, RDA acknowledges and agrees that the remedies set
forth in Section 9.2 are RDA's sole remc--;dies for Developer's failure to perform any or aII of the
Developer Obligations, as defined in See;tion 9.1. Upon the occurrence of an RDA event of
default and die expiration of the applicable cure period, Developer shall have the right, in
addition to any other rights or remedies provided in the OPA and subject to any applicable
restrictions set forth in the OPA., to institute an action at law or in equity to seek specif c
performance of the terms of the OPA, or to cure, correct, prevent or remedy any default,
consistent with the purpose of the OPA..Any such legal actions will be filed in the Superior
Court of San Mateo County, California.
6.5 Remedies Cumulative. The rights and remedies of the parties under the OPA
shall be cumulative, and the exercise or failure to exercise one or more of such rights or remedies
by either Party will not preclude the exercise by it, at the same time or different times, of any
right or remedy for the same default or any other default_
6.G Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against RDA, service of process on RDA will be made by personal
service upon the Clerk of the RDA or in such other manner as may be provided by law. In the
event that any legal action is commenced by RDA against the Developer, service of process on
the Developer will be made by personal service upon Developer's agent for service of process of
the Developer at the address listed in Section ~ herein or in such other manner as may be
provided bylaw.
6.7 Inaction Nat a Waiver of :Default. No failure or delay by either Party in asserting
any of its rights or remedies under the O]?A shall operate as a waiver of any default or of any
such right or remedy, nor deprive such Party ofits right to institute and maintain any action or
proceeding which it may deem necessary' to protect, assert or enforce any such rights or
remedies. Without limiting die generality of the foregoing, the failure or delay by either Party in
providing a notice of default shall not constitute a waiver of any default.
7. Prevailing Wade. Developer and all of Developer's subcontractors s1~a11 comply with
California Health and Safety Code Section 33422.1, and shall comply with California Labor
Code Secfiion 1720 et seq. and all regulations adopted pursuant thereto (collectively, "Prevailing
Wage Laws"), and be responsible for carrying out the requirements of such provisions. This
requirement is applicable to all development located on the Conveyed Property and/or the City
Property and any infrastructure constructed that benefits the Conveyed Property and/or the City
Property that is in whole or part paid for with tax increment fiends. Developer covenants to take
no action which would cause RDA to violate die Prevailing Wage Laws. Developer shall, and
hereby agrees to, unconditionally indemr.-ify, reimburse, defend, protect and hold harmless
Indemnitees from and against any and all Claims that directly or indirectly, in whole or in part,
are caused by, arise from, or relate to, or are alleged to be caused by, arise from, or relate to, the
~~
sf-263G417 F_~ -~
payment or requirement of payment of prevailing wages or the requirement of competitive
bidding in the construction of the Redevelopment Project that is in whole or in part paid for with
tax increment funds, the failure to comply with any state or federal labor laws, regulations or
standards in connection with this Agreement, including but not limited to California Labor Code
Section 1720 et seq. and the Prevailing V11age Laws, or any act or omission of RDA or
Developer related to this Agreement with respect to the payment or requirement of payment of
prevailing wages or the requirement of competitive bidding, whether or not any insurance
policies shall have been determined to be applicable to any such claims, demands, suits, actions,
losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, costs,
damages, or administrative, enforcement or judicial proceedings. It is further agreed that RDA
does not, and shall not, waive any rights against Developer which they may have by reason of
this indemnity and hold harmless agreement because ofthe acceptance by RDA, or the deposit
with RDA by Developer, of any of the insurance policies described in this Agreement.
If applicable, as provided in California Labor Code Section 1720 et seq_, the hourly and
daily rate ofwages to be paid each of the classes of mechanics and workers employed in
connection with construction of the Redevelopment Project shall not be less than t1e rate of such
wages then prevailing in San Mateo County_ If Prevailing Wages applies to any portion of the
Redevelopment Project, Developer agrees to and shall forfeit, as a penalty to RDA, the sums
established and applicable pursuant to California Labor Code Section 1720 et seq. for each
calendar day or portion thereof that each workman employed in connection with tie
Redevelopment Project is paid less than the rates designated in this paragraph for any work
performed under this Agreement by Developer or any subcontractors or agents ofDeveloper; or
is not reported to the labor commissioner and RDA as required pursuant to California Labor
Code Section 1720 et seq.
8. Successors and Assigns; No Third-Party Beneficiaries. This OPA shall be binding
upon and inure to the benef t of the Parties and their respective successors and assigns_ Subject to
approval by RDA as to qualifications and fnancial capabilities of Developer's assignee,
Developer may transferor assign all or arty portion of its interests, rights or obligations under
this OPA to any gird party ar parties acquiring an interest or estate in the Redevelopment Project
ar any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels,
or facilities.
8.1 Request for Approval; No~lice. For any transfer or assignment that requires
RDA's approval, Developer shall notify RDA in writing of its request for consent, which notice
shall include: {i} the proposed effective date of transfer or assignment {which shall not be less
than thirty (30} days nor more than three-hundred sixty-five {3b5) days after Developer's notice;
(ii) the name and address of the proposed transferee, and (iii} current, audited financial
statements of the proposed transferee cer'rified by an ofFcer, partner, or owner thereof and any
other relevant information pertaining to t:he proposed transferee's qualifications or f nancial
capabilities that RDA may reasonably and timely request.
8.2 A tap. royal. RDA may refuse to give its consent under this Section 8.2 only if, in
light of the proposed transferee's development experience and f nancial resources, such
transferee would not, in RDA's reasonable opinion, be able to perform the obligations proposed
to be assumed by such assignee. In making such determination, RDA shall evaluate: (i) the
~~
sf-2634417 F-'I 2
f nancial ability of the proposed transferee to own and develop the Project, or portion thereof so
transferred; and {ii) the fitness and experience of the proposed transferee and its senior
managerial personnel to own and develop the Redevelopment Project or portion thereof so
transferred. Such approval by RDA shall not be unreasonably delayed, conditioned, or withheld.
Failure of City to notify Developer in writing of its consent or disapproval within forty-five (45)
calendar days of written notification by Developer to RDA of a proposed transfer shall be
deemed to be an approval of the proposed transfer.
8.3 Transfer Not Requiring Approval. Notwithstanding tl~e foregoing, Developer
shall be permitted to assign this OPA wilJ~out RDA consent to an entity or entities controlled by
Developer (or either owner of Developer} or under common control with Developer (or either
owner of Developer}, provided that Developer owns and controls no less than fifty percent (50%)
of such successor entity_ Subject to the immediately preceding sentences, this OPA is not
intended to benefit, and shall not run to the benefit of or be enforceable by, any other person or
entity other than the Parties and their permitted successors and assigns_
9. Termination of 4PA; Disposition of Kind Pranerk_y.
9.1 Developer Obligation at Horizon Date. By the ninth anniversary of the
Commencement Date of the MOU {"Horizon Date"), Developer shall undertake the following
actions (collectively, "Developer Qblig;ations"):
{a} Obtain CEQA and General Plan, Zoning, and Master Plan-level
entitlements for the entire Project conternplated by the MOU, wl~icli includes the City Project,
the Redevelopment Project, and the remainder of the Developer Project_
(b) Obtain all additional entitlements for construction of the Redevelopment
Project from t13e City and all other regulatory agencies with jurisdiction over the Redevelopment
Project;
{c) Demonstrate financing for the Redevelopment Project; and
{d} Provide a written, binding commitment with RDA to commence and
diligently complete construction of the Redevelopment Project within four years after the
Horizon Date, with the exception of any force majeure events mutually agreed upon by tl~e
Parties.
9.2 Remedies for RDA.
(a) If Developer doers not perform the Developer Obligations by the IIorizon
Date, RDA may (but shall not be obligated to) give to Developer a formal written Notice of
Intent to terminate the OPA and the Conveyance Agreement, and, after giving such notice, the
right to exercise the remedies set forth in subsection (c} below.
(b) After RDA gives such Notice of Intent, Developer shall have one year to:
63
sf-2634417 F-13
(i) Obtain CEQA and General Plan, Zoning, and Master Plan-level
entitlements for the entire Project contemplated by the MOU, which includes the City Project,
the Redevelopment Project, and the remainder of the Developer Project;
(ii) Obtain all additional entitlements for construction of the
Redevelopment Project from City and all other regulatory agencies with jurisdiction over the
Redevelopment Project;
(iii} Demonstrate f nancing for the Redevelopment Project; and
(iv} Provide a written, binding commitment to commence and
diligently complete construction of the Redevelopment Project within three years after the
Horizon Date, with the exception of any force majeure events mutually agreed upon by the
Parties.
(c) 1fDeveloper has not completed the actions identified in Section 9.2(b} at
the end of the one-year period following :RDA's Notice of Intent, RDA may, but shall not be
obligated to:
(i) Terminate the OPA and the Conveyance Agreement;
{ii) Exercise art option to purchase for all cash the Icing Leases and
entitlements for the Redevelopment Project at a fixed price of seven million f ve hundred
thousand dollars {$7,500,000) if all improvements to the existing facilities set forth in Exhibit ___.
are completed by Developer; and
(iii} Decrease the purchase price for the King Leases by five hundred
thousand dollars (5500,000) for each year Developer fails to complete the actions identified in
Section 9.1 after the seventh (7th} anniversary of the Commencement Date, for a maximum
purchase price reduction of one million rive hundred thousand dollars ($1,500,000).
The termination of the OPA, in part or in whole, shall not affect the rights or obligations
of Developer or City under the separate ]Development Agreement covering the Developer
Property.
l 0. Nondiscrimination and Nonse~i ~~ation Clauses.
10.1 In accordance with Section 33436 of the Health and Safety Code, Developer
herein covenants by and for itself, its transferees and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of any basis listeal in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m} and
paragraph (1} of subdivision (p) of Section 12955, and Section 12955.2 of the Government Cade,
in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Conveyed
Property, nor shall Developer or any person claiming under or through it, establish or permit any
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees, ar vendees in the Conveyed
Property. ii
r~~
sf-2634417 F-14
10.2 All deeds, Ieases and contracts contemplated by this Agreement and entered info
on behalf of RDA shall include the nondiiscriminalion and nonsegregation language required by
I~ealth and Safety Code Section 33436.
11. Developer's Right of First Opp+~rtuni .The Parties intend to create an integrated plan
and design far the Project, as generally outlined abave_ Tlie Parties will further discuss and
execute agreements that will address the compatibility of the City Property with the Developer
Praperty_ In recognition of the value of maintaining integrated planning and consistency of
development for the Project, at any time City ar RDA should desire to offer any parcel or parcels
of the City Praperty to be developed far uses that would be substantially similar to the uses
proposed to be developed on the Developer Property, City or RDA shall offer to, and upon
indication of interest by, Developer, will enter into an exclusive negotiations agreement with
Developer for the acquisition and development of such parcel or parcels. The term of the
exclusive negotiations agreement shall be six (6) months, except as otherwise agreed upon by the
Parties_
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EXNIBl.T G: DA Provisions
The Parties intend that any Development Agreement {"DA"} entered by the Parties to
govern the development of the Developer Project will substantially incorporate the following
provisions_ These provisions are not exlis3ustive and may be expanded, deleted or modified as
the Parties reach agreements an other aspects of the Developer Project, and as may be necessary
following preparation of the environmenl'al impact report for the overall Project. The Exhibits
referred to in this Exhibit G will be prepared in conjunction with the Development Agreement
itself. ~1Vote: to the ea:tent that ce~-tairz de f t7ed terms appear irY bath the body of the MOU and
tJiis Ex)zibit, those tei7~zs are intended to 1tai~e the same nzeani~~gs.]
I. Parties. The parties to the DA shall be the City of South San Francisco ("City") and
Oyster Point Ventures LLC ("Developer"). City and Developer each may be referred to herein
as a "Party," and collectively as the "Parties."
2. Term. The term of tl~e Agreement will be twenty (20) years.
3. The Project and Project Approval Process.
3.1 The Project. The propo:;ed project {"Developer Project"} consists of
development of a life sciences campus on ~~_~= acres of Developer s property ( Deve oper
Property"), commonly known as the Oyster Point Business Park and including certain property
within the Oyster Point Marina Specific :Plan Area acquired from City pursuant to a separate
conveyance agreement. The Developer I?roject will include construction of research and
development and office buildings predicated upon a Floor Area Ratio {"FAR") calculation of
I.25, taking into account certain areas (I} reserved for public amenities, including any private
streets, beach, park, portion of the Bay Trail, or other rights of way, public open space, or
recreational area, and (2} available for potential future development, and subject to confrrriation
by the City of the actual square footage of the parcels comprising the Conveyed Property.
Developer acknowledges that City may determine tl~at development of Developer Project at an
FAR of 1.25 may require mitigation measures in addition to those imposed by City with respect
to development at an FAR of 1.Q. Should City approve, and Developer build, the Developer
Project at an FAR of greater that 1.Q, De:veloper agrees that it will pay the cost of such additional
mitigation measures.
3.2 Project Phasing. The Developer Project will be constructed in several phases,
generally as follows:
(a} Phase IC Imprpvc;ments. The Phase IC Improvements consist of those
improvements identified as part of"Phase IC" in Exhibit J to the Memorandum of Understanding
("M~U") entered among the City of South San Francisco {"City"), RDA, and Developer,
effective as of , 2009. The Phase IC Improvements, which are described in more detail in
Exhibit ,include:
(i} Streets arnd utilities (including grading, subgrade, base, paving,
curb and sidewalk, street lights, storm water, sanitary sewer, combined trench for
6~
sf-2fi34417 G-1
gas electric, and telecom, impermeable utility trench at sanitary landfill areas, and
temporary streets and utilities) in the following locations:
(1} At the future Street "hub" area (as identified in Exhibit ~
(2} Extending east from the hub across the Oyster Point Marina
area
(ii} Repair of tlie: clay cap covering the Oyster Point Landf ll on
specified City-owned parcels;
(iii) Repaving of existing parking areas at specified City-owned
parcels;
(iv} Grading and construction of recreational gelds on specified City-
ownedparcels;
(v} Demolition sand grading at the future "hotel site" on specified City-
owned parcels; and
(vi} Landscaping; of the beach/park area on specified Cifiy-owned
parcels.
{b} Phase ID Improvements. The Phase ID Improvements, which are
described in mare detail in Exhibit T, inc;iude:
(i} Repair of the clay cap covering the Oyster Point Landfill on the
Conveyed Property;
(ii} Remediation of the area identif ed as "Sump 1 ";
{iii} Installation of methane control and monitoring systems on the
Conveyed Property;
(iv) Relocation of refuse on the Conveyed Property to accommodate
new buildings; and
(v) Development of buildings with a minimum of 508,000 square feet
far research and development and/or off ce use_
(c) Phases IID IIID and IVD Improvements.
{i) Development of streets and utilities at Business Park;
(ii) Construction of sewer pump station 1;
(iii} Landscaping within 100-foot shoreline band at Business Park; and
~~
sf-2638417 G-~
(iv) Development of buildings with up to :. ;: ;= ` square feet for
research and development andlor office use.
3.3 Project Approvals. Prior to approval of the Development Agreement, and
concurrently with the certification of the :EIR for the Developer Project, the City has taken
several actions to review and plan far the future development of the Developer Project ("Project
Approvals"}. These include: a Master Plan for development of the Developer Project; [list to
be added as DA is finalized in future].
3.4 Subsequent Approvals. Certain other land use approvals, entitlements, and
permits are necessary or desirable for implementation of the Developer Project ("Subsequent
Approvals"). The Subsequent Approvals may include, without limitation, the following:
separate final development plans for each Phase of the Developer Project (each a "Phase Plan"),
Use Permits, design review approvals, improvement agreements, grading permits, building
permits, lot line adjustments, sewer and water connection permits, certificates of occupancy,
subdivision maps, rezonings, development agreements, permits, resubdivisions, and any
amendments to, or repealing of, any of $~e foregoing. [List to be supplemented as DA is
Finalized in future]. All Subsequent ApF~rovals shall be consistent with the terms of the
Agreement and shall be exercised in a manner that supports the vested rights granted by the
Agreement_
Develo er Obli ations.
4.1 City Fees.
(a) Developer shall pay those processing, inspection and plan checking fees
and charges required by the City under the then current and applicable regulations for processing
applications and requests for Subsequent Approvals.
(b) Consistent with the terms of the Agreement, City shall have the righk to
impose such development fees (the "Development Tees") as have been adopted by City as of the
Effective Date of this Agreement or as to which City has initiated formal studies and proposals,
pursuant to City Council action. Development Fees shall be due upon issuance of building
permits or certificates of occupancy for flee Developer Project, as maybe appropriate, except as
otherwise provided under the Agreement.
4.2 Mitigation Measures. Developer shall comply with the Mitigation Monitoring and
Reporting Program ("MMRP") identified in the EIlt for the Developer Project, as it may be
modified from time to time in accordance with the MMRP or other law.
4.3 Additional Consideration. As consideration for its vested rights to develop the
Developer Project in accordance with this Agreement and the separately executed Owner
Participation Agreement between Developer and the Redevelopment Agency of the City of
South San Francisco, Developer has co:mrnitted to make payments to the City as (allows:
(a) At the time the Gity/RDA conveys certain property (the "Conveyed
Property"} from City/RDA to Develol:rer, and upon satisfaction of alt requirements pursuant to a
separate Conveyance Agreement for conveyance by CityIRDA and payment by Developer,
71
sf-2634417 G-3
Developer will make a cash payment to Ciity/RDA of two million two hundred fifty thousand
dollars 02,250,000).
(b) At the time Developer commences construction of Phase IIID of the
Developer Project, Developer will make an additional cash payment to City/RDA of two million
two hundred fifty thousand dollars ($2,2SIJ,000}.
City Obligations.
5.1 Protection of Vested Rights. To the maximum extent permitted bylaw, City
shall lake any and all actions as may be necessary or appropriate to ensure that the vested rights
provided by the Agreement can be enjoyed by Developer and to prevent any City Law, as
def ned below, from invalidating or prevailing aver all or any part of the Agreement. City shall
cooperate with Developer and shall undertake such actions as maybe necessary to ensure the
Agreement remains in full force and effec.f_ City shall not support, adopt, or enact any City Law,
or take any other action which would violate .the express provisions or intent of the Agreement.
5.2 Availability of Public 5ervices_ To the maximum extent permitted by law and
consistent with its authority, the City will assist Developer in obtaining capacity for sewer,
wafer, and storm services as may be necessary to serve the Developer Project. Developer agrees
that it shall pay the then-effective fees for the services provided pursuant to this Section.
5.3 Right to Rebuild. Developer may renovate or rebuild the Developer Project or
any part thereof within the Term of the Agreement should it become necessary due to natural
disaster, changes in seismic requirements., or should the buildings located within the Developer
Project become functionally outdated, within Developer's sale discretion, due to changes in
technology. Any such renovation or rebuilding shall be subject to the square footage, height
limitations and rAR vested by the Agreement, and shall comply with the Project Approvals, the
building codes existing at the time of such rebuilding or reconstruction, and the requirements of
CEQA.
Cooperation; Implementation.
b.l Processin A lication fc>r Subsequent Approvals. The City will not use its
discretionary authority in considering any application far a Subsequent Approval to change the
policy decisions reflected by the Agreement or otherwise to prevent or delay development of the
Developer Project.
b.2 Timely Processin bg_Y City. Upon submission by Developer of the application for
any Subsequent Approval and processing fees, City shall promptly and diligently commence and
complete all steps necessary to act on the application including, without limitation, (i} providing
at Developer's expense, as requested by Developer ar determined to be necessary by the Chief
Planner, reasonable overtime staff assistance and/or staff consultants for planning and processing
of the Application; (ii) if legally required, providing notice and holding public hearings; and
(iii) acting on the application. City shall ensure that adequate staff is available, and shall
authorize overtime staff assistance as m,ay be necessary, to timely process the application. City
Staff also agrees to timely process any subsequent permits and approvals required to implement
the Developer Project.
~~
sf-2634417 G--4
b3 Review of Subsequent Ap rp ovals. The City may deny an application for a
Subsequent Approval only if such application does not comply with the Agreement or
Applicable Law (as defined below).
6.4 Other Government Permits. The City shall cooperate with Developer in its efforts
to obtain, as may be required, permits and approvals from other governmental or quasi-
governmental entities and shall, from time to time at the request of Developer, use its best efforts
to enter into binding agreements with any such entity as may be necessary to ensure the timely
availability of such permits and approvals.
7. Master Plan; Phase Plans.
?. I Developer has submitted to City a Master Plan far development of the Developer
Project. City leas determined that the Master Plan is consistent with the South San Francisco
General Plan ("General Plan"), the Oyster Point Marina Specific Plan ("Specif c Plan"). The
Master Plan, including the Project Description and Schedule of Performance, is incorporated into
this DA as Exhibit
7.2 Developer shall submit to City, for approval by City, separate final development
plans for each Phase of the Developer Project (each a "Phase Plan"). Each Phase Plan shall be
consistent with the General Plan, tJie Specific Plan, Redevelopment Plan, the Project Description
and the Schedule of Performance, and shall include alI required Phase Plan application
documents, including without limitation, elevations and site plans showing size and Iocation of
buildings and infrastructure, the number and location of parking spaces for any proposed
buildings, and (1) the specific treatment a.nd location of all landscaping amenities, (2) the
location of all pedestrian and automobile ingress and egress points, (3} floe proposed uses of the
buildings and (4) the location of other public or private streets and improvements for that
portion of the Developer Property included within the specific Phase Plan. Any Phase Plan shall
comply and be consistent with the requirements set forth in Section ~ below.
7.3 Upon approval by the City, each Phase Plan shall be incorporated automatically
into the DA as a part of Exhibit _
7.4 Any subsequent material change, rnodif cation, revision or alteration of any
approved Phase Plan shall be submitted far approval by the City; and ifsuch change,
modif cations, revisions or alterations are: not approved, the approved Phase Plan shall continue
to control. Any proposed material change, modification, revision or alteration shall be approved
or disapproved by tl~e City within seventy-five (75) calendar days of submittal. If the City
refiises or fails to approve or disapprove the revision, modification or alteration to the Phase Plan
within said seventy-five (75) calendar daffy period, the City shall, within ninety (90) calendar days
after receipt of such submittal, provide the Developer with a written statement of the reasons the
City refused or failed to approve such sut~mittal. If the City fails to approve or deny the
amended Phase Plan and to provide the Developer with the written statement described above,
the submittal shall be deemed approved_
sf-2G34417 G_b l /
g. Standards, Laws, and Regulations Governing Protect.
8.l Vested Right to Develop. Teveloper shall have a vested right to develop the
Developer Proj ect on the Developer Property in accordance with the terms and conditions of this
Agreement and the Applicable Laws. Nothing in this section shall be deemed to eliminate or
diminish the requirement of Developer to obtain any required Subsequent Approvals.
8.2 Permitted Uses Vested by This Agreement. The permitted uses of the Developer
Property; the density and intensity of use of the Developer Property; the maximum lreigl~t, bulk
and size of proposed buildings; provisions for reservation or dedication of land for public
purposes and tlae location of public improvements; the general location of public utilities; and
other terms and conditions of development applicable to the Developer Project, shall be as set
forth in the Project Approvals and; as and when they are issued (but not in limitation of any right
to develop as set Earth in the Project Approvals), the Subsequent Approvals. Permitted uses shall
include, without limitation, research and development, office, employee-serving amenities such
as personal service establishments, eating and'drinking establishments, childcare, and physical
fitness facilities.
83 Applicable Law. The rules, regulations, official policies, standards and
specif cations applicable to the Developer Project {the "Applicable Law") shall be those set
Earth in this Agreement and the Project Approvals, and, with respect ko matters not addressed by
this Agreement or the Project Approvals, (hose rules, regulations, official policies, standards and
specifications (including the General Plan and City ordinances and resolutions} governing
permitted uses, building locations, timing of construction, densities, design, and heights, fees,
assessments, exactions, and taxes in farce and effect an the Effective Date of t11is Agreement, or
as specif ed in Exhibit
taxes, exactionsaand assessments listed in Exhibit are the only City fees, taxes, exactions, and
assessments. Except for those proposed E:ees, exactions or assessments set forth in Exhibit _,
City is unaware of any pending efforts to initiate, or consider applications for new or increased
fees, taxes, exactions, or assessments covering the Developer Property, or any portion thereof,
except for those pending efforts described on Exhibit _. This shall not prohibit City from
imposing on Developer any fee or obligation that is imposed by a regional agency in accordance
with state or federal obligations and required to be implemented by City.
$.4 No Public Procurement Process. Nothing in this Agreement, including any
related agreements for financing of infrastructure or public amenities, shall require Developer to
follow any statutory provisions, regulations, rules, or procedures applicable to City andlar RDA
with respect to bidding for public procurement or contracting; nor shall City attempt to impose
any such requirement on Developer or its tenants byway of ordinance or condition of approval.
8.S Uniform Codes. City may apply to the Developer Property, at any time during the
Term, then current Uniform Building Code and other uniform construction codes, and City's
then current design and construction standards for road and storm drain facilities, provided any
such uniform code or standard has been adopted and uniformly applied by City on a citywide
~~
The Parties understand and agree that as of the Effective Date the fees,
sf-2634417 G-fi
basis and provided that nv such code or standard is adopted for the purpose of preventing or
otherwise limiting construction of all or any part of the Developer Project.
8.6 Life of Development Approvals. The term of any approval, permit, or other land
use entitlement approved as (i) a Project .Approval, and in effect as of the effective date of the
Agreement, or {ii) Subsequent Approval, shall automatically be extended for the longer of the
duration of the Agreement (including any extensions) or the term otherwise applicable to such
Project Approval or Subsequent Approval if the Agreement is no longer in effect.
9. Changes in Law.
9.1 No Conflicting Enactments. City shall not impose on the Developer Projecfi
(whether by action of the City Council or by initiative, referendum or other means} any
ordinance, resolution, rule, regulation, staindard, directive, condition or other measure (each
individually, a "City Law") that is in conflict with applicable law or this Agreement or that
reduces the development rights or assurances provided by this Agreement. V~ithout limiting the
generality of the foregoing, any City Law shall be deemed to conflict with applicable law or this
Agreement or reduce the development rights provided hereby if it would accomplish any of the
following results, either by specific reference to the Developer Project or as part of a general
enactment wluch applies to or affects the Developer Project:
(a) Change any land use designation or permitted use of the Developer
Property;
(b) Limit or control the availability of public utilities, services or facilities or
any privileges or.rights to public utilities, services, or facilities (for example, water rights, water
connections or sewage capacity rights, sewer connections, etc.) for the Developer Project;
(c) Limit or contraI the location of buildings, structures, grading, or other
improvements of the Developer Project in a manner that is inconsistent with or more restrictive.
than the limitations included in the Prvjec:t Approvals (as and when they are issued);
(d) Limit or control thE: rate, timing, phasing or sequencing of the Developer
Project as set forth in the~Project Approvals;
{e) Apply to the Developer Project any City Law otherwise allowed by this
Agreement that is not uniformly applied on a City-wide basis to all substantially similar types of
development projects and project sites;
{f) Result in Developer having to substantially delay construction of the
Developer Project or require the issuance of additional permits or approvals by the City other
than those required by Applicable Law;
Approvals;
(g) Limit the processing or procuring of applications and approvals of Project
(h) Establish, enact, increase, or impose against the Developer Project or
Developer Property any fees, taxes (including without limitation general, special, and excise
sf-2634417 G_7
taxes}, assessments, liens or other monetary obligations other than those specifically permitted
by this Agreement and referred in Exhibit ~ or other connection fees required by third party
utilities; or
(i} Substantially increase the cost of constructing or developing the
Developer Project or any portion thereof
9.2 Initiatives and Referenda.
(a} If any City Law is Enacted or imposed by initiative or referendum, or by
the City Council directly or indirectly in connection with any proposed initiative or referendum,
which City Law would conflict wit13 Applicable Law or this Agreement or reduce the
development rights provided by this Agreement, such Law shall not apply to the Developer
Project.
(b) Without limiting the generality of any of the foregoing, no moratorium or
other limitation {whether relating to the rate, timing, phasing or sequencing of development)
affecting subdivision maps, building permits or other entitlements to use that are approved or to
be approved, issued or granted within the City, or portions of the City, shall apply to the
Developer Project.
(c) To the maximum extent permitted by Iaw, City shall prevent any City Law
from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate
with Developer and shall undertake such actions as may be necessary to ensure this Agreement
remains in full force and effect_
(d) Developer reserve:; the right to challenge in court any City Law that would
conflict with Applicable Law or this Agreement or reduce the development rights provided by
this Agreement.
9.3 State and Federal Law. A.s provided in California Government Code ~ 65869.5,
the Agreement shall not preclude the application to the Developer Project'of changes in laws,
regulations, plans or policies, to the extent that such changes are specifically mandated and
required by changes in state or federal laws or regulations.
l 0. Amendment of Agreement. This Agreement may be amended from time to time, in
whole or in part, by mutual written consent of the parties hereto or their successors in interest, as
follows:
10.1 Administrative A egr emerit Amendments. Any amendment to this Agreement
which does not substantially affect (i) the Term of this Agreement, (ii) permitted uses of the
Developer Property, (iii) provisions far i.he reservation or dedication of ]and, (iv) conditions,
terms, restrictions or requirements for subsequent discretionary actions, (v) the density or
intensity of use of the Developer Property or the maximum height or size of proposed buildings
or (vi) monetary contributions by Devel~aper, shall not, except to the extent otherwise required by
law, require notice or public hearing before the parties may execute an amendment hereto. Such
amendment may be approved by City resolution_
~~
sf-2fi3G417 G-8
10.2 Amendment Exemptions. No Subsequent Approval, or amendment of a Project
Approval or Subsequent Approval, shall require an amendment to this Agreement. Instead, any
such matter automatically shall be deems;d to be incorporated into the Developer Project and
vested under this Agreement.
11. Assi~nrnent and Transfer. Developer may transfer or assign all or any portion of its
interests, rights or obligations under the Agreement, the Project Approvals, or Subsequen#
Approvals to third parties acquiring an interest or estate in the Developer Project or any portion
thereof including, without limitation, purchasers or lessees of lots, parcels or facilities. An
Assignment and Assumption of Rights and Obligations form is attached as Exhibit
l 2. Cooperation in the Event of Legal Challenge.
I2.I Cooperation. In the event of any administrative, legal, or equitable action or other
proceeding instituted by any person not a party to the Agreement challenging the validity of any
provision of the Agreement ar any Project Approval ar Subsequent Approval, the parties shall
cooperate in defending such action or proceeding_ City shaI] promptly notify Developer of any
such action against City and/or RDA. 3f'City fails promptly to notify Developer of any legal
action against City or if City fails to cooperate in the defense, Developer shall not thereafterbe
responsible for City's defense. The Parties shall use best efforts to select mutually agreeable
legal counsel to defend such action, and Developer s]~alI pay compensation for such legal
counsel {including City Attorney time acid overhead for the defense of such action), but shall
exclude other City staff overhead costs and normal day-to-day business expenses incurred by
City. Developer's obligation to pay for legal counsel shall not extend to fees incurred on appeal
unless otherwise authorized by Developer. In the event City and Developer are unable to select
mutually agreeable legal counsel to defend such action or proceeding, each party may select its
own legal counsel and Developer shall pay its and City's legal fees and costs.
12.2 Cure; Reapproval. If, as a result of any administrative, legal, or equitable action
or other proceeding, all or any portion of tl~e Agreement or the Project Approvals or Subsequent
Approvals are set aside or otherwise made ineffective by any judgment in such action or
proceeding (based on procedural, substantive or other deficiencies, hereinafter "Deficiencies"),
the parties agree to use their respective best efforts to sustain and reenact or readopt the
Agreement, andlor the Project Appravalls, that the Defciencies related ta, unless the Parties
mutually agree in writing to act otherwise.
13_ Default; Remedies; Terminati~an; Other Procedures.
13.1 Defaults. Any failure by either party to perform any term or provision of the
Agreement, which failure continues uncured for a period of thirty (30) days following written
notice of such failure from the other party (unless such period is extended by mutual written
consent), shall constitute a default under tl~e Agreement_ Any notice given shall specify the
nature of the alleged failure and, where appropriate, the manner in which said failure
satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably
be cured within such 30-day period, then the commencement of tlYe cure within such time period,
and the diligent prosecution to campletiion of the cure thereafter, shall be deemed to be a cure
within such 30-day period. Upon the occurrence of a default under the Agreement, the non-
77
sf-2634417 G-9
defaulting party may institute legal proceedings to enforce the terms of the Agreement or, in the
event of a material default, terminate the Agreement. If the default is cured, then no default shall
exist and the noticing party shall take no fiurther action.
13.2 Termination. If City elects to consider terminating the Agreement due to a
material default of Developer, then City shall give a notice of intent to terminate the Agreement
and the matter shall be scheduled for consideration and review by the City Council at a duly
noticed and conducted public hearing. De:velaper shall have the right to offer written and oral
evidence prior to or at the time of said public hearings. If the City Council determines that a
material default has occurred and is continuing, and elects to terminate the Agreement, City shall
give written notice of termination of the Agreement to Developer by certified mail and the
Agreement shall thereby be terminated sixty (60} days thereafter; provided, however, that if
Developer fles an action to challenge City's termination of the Agreement within such sixty-day
period, then the Agreement shall remain in full force and effect until a trial court has affirmed
City's termination of the Agreement and :ill appeals have been exhausted {or the time for
requesting any and all appellate review has expired); provided, however, that the time period
during which the Agreement shall remain in effect shall not exceed three {3} years.
13.3 Periodic Review.
{a} Tiuoughout the Term of the Agreement, at Least once every twelve (l2}
months following the execution of die Al~'eement, City shall review the extent of good-faith
compliance by Developer with. the terms of the Agreement.
(b} If City fails, during; any calendar year, to either (i} conduct the Periodic
Review, or {ii) notify Developer in writing of City's determination, pursuant to a Periodic
Review, as to Developer's compliance with the terms of the Agreement and such failure remains
uncured as of December 31 of any year dfuring the term of the Agreement, such Failure shall be
conclusively deemed an approval by Cit}~ of Developer's compliance with the terms of the
Agreement.
I3.4 Enforced Delay; Extension afTime of Performance. In addition to specific ..
provisions of the Agreement, neither party shall be deemed to be in default where delays in
performance or failures to perform are due ta, and a necessary outcome af, war, insurrection,
strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, rtes, casualties, acts of
Gad, restrictions imposed or mandated b~y other governmental entities {including new or
supplemental environmental regulations;), enactment of conflicting state or federal laws or
regulations, judicial decisions, or similar basis for excused performance which is not within the
reasonable control of the party to be excused. Litigation attacking the validity of the Agreement
or any of the Project Approvals, or any of the Subsequent Approvals, or any permit, ordinance,
entitlement or other action of a governmental agency other than City necessary for the
development of the Developer Project pursuant to the Agreement shall be deemed to create an
excusable delay as to Developer_ Upon the request of either party hereto, an extension of time
for the performance of any obligation whose performance has been so prevented or delayed will
be memorialized in writing. The term of any such extension shall be equal to the period of the
excusable delay, or longer, as maybe mutually agreed upon.
~~
s(-2634417 G-10
EXHIBIT A: Future Parcel Map
This Exhibit depicts the approximate boundaries of the future legal parcels the Parties
anticipate creating in order to effectuate conveyance ofthe Conveyed Property, and development
of the Developer Property and City Property.
sf-2634417 H_~ ~ `
EXHIBIT I: l'ro er Conve ances
1. Property Conveyances. The Parties intend to exchange property interests an portions of
the Marina Property through one or more al;reement(s) ("Conveyance Agreement"}. The
Conveyance Agreement will be based generally on the terms set forth below.
1.1 Developer Conveyed Interests. For the purposes of this Exhibit, "Developer
Conveyed Interests" refers to those portion's of the Property currently encumbered by the King
Leases, which Leases Developer intends to acquire, and in which Developer intends to convey its
interest to the City pursuant to a Conveyance Agreement. The location of each parcel identified
below is depicted in Exhibit A to the MOLT (Existing Parcel Map}.
1.2 Conveyed Property. "Conveyed Property" refers to those portions of the Property
which Developer intends to acquire in fee fi•om City pursuant to a Conveyance Agreement. T'he
location of each parcel identified below i,s depicted in Exhibit H (Future Parcel Map)_
Tuturc Parcel Acres
(i} Parcell ~ 9•~~
(ii} Parcel2 4.29
TOTAL 14•x8
1.3 Development Rights. Through the exchange of the Developer Conveyed Interests
and the Conveyed Property, the Parties intend for Developer to obtain the right to acquire the
entitlement to develop up to a Hoar area ratio of 1.25 on the Life Sciences Campus. The Parties
gv
sf-2634417 1-1
further intend that the calculation of land area for purposes of floor area ratio will include certain
areas reserved for public amenities, including any streets, beach, paric, portion of the Bay Trail,
or other rights of way, public open space;, or recreational area.
2_ Due Diligence.
2.1 Feasibility 5tudies_ During die period commencing upon the Effective Date and
terminating (^~ days thereafter ("Due Diligence Period"}, Developer and City
may undertake additional inspection, reviiew and testing of the Conveyed Property and the I{ing
Lease property, respectively, including without limitation (i) review of the physical condition of
such property, including inspection and examination of soils, environmental factors, and
archeological information relating to the .property; (ii} further review and investigation of the
effect of any zoning, maps, permits, reports, engineering data, regulations, ordinances, and laws
affecting the property, (iii} further evaluation of the property to determine its feasibility for such
Party's intended use and (iv) further review and investigation of any potential relocation costs
pursuant to Section 726 et seq. of die California Government Code. All of the foregoing are
hereinafter collectively referred to as "Feasibility Studies." The Parties may consult with or
retain civil engineers, contractors, soils and geologic engineers, architects and other specialists in
its investigation, and may consult with or retain other consultants to determuie ifthe property is
suitable for each Party's intended use.
2.2 Contracts, Reports and Investigations. Developer and City each agree to make
available within f fteen (15} business days following the Effective Date of the MOU, any and all
additional information {beyond dial which each party has already provided to the other party},
studies, reports, investigations, contracts, leases, rental agreements and other obligations
concerning or relating to the property such Party has agreed to convey pursuant to the MC+U
which are in such Party's possession or u~hicll are reasonably available to such Party, including
without limitation surveys, studies, reporl:s and investigations concerning the property's physical,
environmental, or geological condition, habitability, or the presence or absence of Hazardous
Materials in, on or under d1e property anti its compliance with all applicable state and federal
environmental laws.
2.3 Right of Entry. During the Due Diligence Period, each Party grants to the other
and to such other Party's agents and employees the right, upon reasonable notice, to enter upon
the property such Party shall acquire pursuant to the MOU far the purpose of inspecting,
examining, surveying and reviewing such property in accordance with the MOU. Each Party
shall obtain die other Party's advance consent in writing to any proposed physical testing of the
property, which consent shall not be unreasonably conditioned, withheld or delayed. Each Party
shall also obtain any necessary approvals from the Harbor Dislrict_ Physical tests shall be
scheduled during normal business hours unless otherwise approved by die owner of d1e property
to be tested. Each Party agrees to indemnify the other Party and to hold such other Party
harmless from and against all liability, loss, cost, damage and expense (including, without
limitation, reasonable attorneys' fees and costs of litigation) resulting From such Party's activities
pursuant to this Section except to the extent t11at such liability, loss, cost, damage and expense
arises as a result of the negligence ar odiE:r wrongful conduct of the indemnified Party or the
indemnified Party's agents or employees. This Section shall survive the expiration or termination
of the MOU and the Close of Escrow.
~I
sf-X634417 ~_2
3. Escrow; Close of Escrow. Upon notice that all Parties are prepared to consummate the
conveyance of property interests pursuant to the Conveyance Agreement, the Parties shall open
an escrow to at the office of Title Company located at
("Title Company" or "Escrow Agent") or such other title company as
may be mutually agreed upon by the Parties. Upon the opening of escrow, the Parties shall
deposit with the Escrow Agent an executed copy of the Conveyance Agreement, which
collectively shall serve as the joint escrow instructions of City and Developer for this transaction,
together with such additional instructions as maybe executed by the Parties and delivered to the
Escrow Agent.
3.1 Close of Escrow; Closing Costs. Each Party shall pay the cost of any title
insurance such Party elects to purchase with respect io the property or interest to be acquired by
such Party pursuant to the Conveyance Agreement. Developer shall pay all other closing costs
and escrow fees (including without limitation recording fees, escrow charges, real estate transfer
taxes, and documentary transfer taxes) associated with the close of escrow (the "Close of
Escrow") for the conveyance of tl7e Develloper Conveyed Interests to City and conveyance of the
Conveyed Property to Developer.
3.2 Condition of Title. At the Close of Escrow, Developer shall convey to City the
Developer Conveyed Interests free and clear ofall recorded liens, encumbrances, assessments,
leases and taxes except as are consistent vvith the Conveyance Agreement, and City shall convey
to Developer fee simple title to the Conveyed Property free and clear of all recorded liens,
encumbrances, assessments, leases and taxes except as are consistent with the Conveyance
Agreement; provided, however, that the property to be exchanged shall remain subject to
easements of record.
sf-2634417 I-3 " ~
ExxIBIT J: Infrastructure Development and Financing
Tlvs Exhibit identifies the public infrastnacture improvements contemplated by the
Parties as necessary for the Project ("Infrastructure Improvements"); the allocation of
responsibility for Infrastructure Improvement development and costs; the timing of development
of specific Infrastructure Improvements i:n relation to one another and to Project construction;
and financing sources. Although the Parities recognize that the need for and casts of specific
improvements may change as a resulk of Ithe environmental review process or for other reasons
beyond the Parties' reasonable control, this Exhibit reflects the Parties' good-faith
understanding, developed through peer review, of the necessary Infrastructure Improvements,
their anticipated costs, and the availability of public financing sources to fund these costs.
l . Infrastructure Improyezrients. "I'he Infrastructure Lnprovements are those identif ed on
the attached Sources and Uses chart (3-3}, and depicted on the Site and Improvement Costs
diagram (J-4).
2. Improvement Casts. The Parties. agree that the direct, indirect, and total costs listed
under "Uses" on the attached Sources and Uses chart reflect the Parties' best good-faith
estimates of the costs of specific Infrastructure Lnprovements (collectively, the "Improvement
Costs").
3. Funding Sources. The Parties ini:end that the funding sources for tl~e Improvement
Costs will be generally as listed and allocated under the "Sources" on the attached Sources and
Uses chart. These funding sources fall into the following categories:
3.1 S/SKS Sources.
(a) Out-of Pocket. Developer will privately provide the Out-of-Pocket funds_
The Out-of Pocket funds include cash consideration Developer intends to provide to the City in
conjunction with {i) the exchange of property interests pursuant to a Conveyance Agreement, and
(ii} Developer's initiation of construction of Phase IID.
{b} Mello-RoosICED. The Parties intend that, pursuant to tl~e terms of the
MOU, the City may form one or more cornmunity facilities districts ("CFD") and levy a special
tax on the Developer Properky in order to provide the Mello-RoosICFD funds.
3.2 City/RDA Sources_
(a) Phase I TIE. The Parties intend that, pursuant to the terms of the MOU
and an OPA to be entered between Developer and RDA, RDA will provide funding to Developer
for a portion of the Phase IC Improvementt Costs {the "RDA Funding Requirement"}.
(b} Phase II TIF/TOT. The Parties intend that, if City or RDA in its discretion
undertakes to construct the Phase IIC Improvements, then (i) RDA will provide funding far a
portion of these Improvements, and {ii) additional funding will be provided by the generation of
additional Transient Occupancy Tax from the construction of a hotel on the City Property.
g3
sf-2fi34417 ~_.~
(c} City Out-of-Pocket. The Parties do not intend that City will be required to
fund any Improvement Costs through sources other than those identified above.
4. Allocation of Responsibility; Cost C?verruns and Savings. With the exception of the
Improvement Costs associated with streets and utilities at the "hub," particular Improvement
Costs are allocated in their entirety to eithf;r Developer or City1RDA; however, the Parties intend
to share, on a proportional basis, responsibility for funding the Improvement Costs associated
with streets and utilities at the hub, as indicated on the Sources and Uses chart. The Party that is
al Located responsibility far payment of a particular Improvement Cost shall pay the entire cost of
developing such Improvement, and therefore shall pay for any cost overruns above, and shall be
entitled to retain any cost savings below, the estimated costs of such Infrastructure Improvements
{or, with respect to the Improvements at th.e hub, such Party's proportion of responsibility to fund
such Improvement}.
~~
sf-2634417 ~_2
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EXI~IBIT I~: Existin Environmental Conditions
The fallowing documents, and the references cited therein, identify the lc~~own existing
environmental conditions at Oyster Point Marina Village. These documents are on file with
Developer_ The Parties acknowledge that this Exhibit may be modif ed as the City reviews these
documents.
] . Documents Commissioned by Developer.
1.1 Treadwell and Rolla, Environmental and Geotechnical Consultants. "Draft
Sump 1 Investigation, Former Oyster Poink Landfill, South San Francisco, CA." April 9, 2009.
12 Treadwell and Rollo, Environmental and Geotechnical Consultants. "Sump 1
and 2: Cost Estimates for Development-related Remediation, Oyster Point Landfill/Oyster Paint
Business Park, South San Francisco, CA." March 20, 2009.
1.3 Treadwell and Rollo, Environmental and Geotechnical Consultants.
"Geotechnical lnvestigation of the Landfill Cover, Oyster Point Landfill, South San Francisco,
CA" March 13, 2009.
1.4 Treadwell and Rollo, Envii'omnental and Geotechnical Consultants. "Work Plan
for Investigation and Delineation of Sump 1, Oyster Point Landfill/Oyster Point Business Parlc,
South San Francisco, CA_" February 25, 2.009•
1.5 Toin Graf, Grafcon. Letter to with confirmation from Vic Pal, Regional Water
Quality Control Board and Greg Schirle, Environmental Health, LEA Section, San Mateo
County: "Results of Meeting to Discuss Regulatory Requirements Sharenstein/SKS Oyster Paint
Landfill Development, South San Francisco, CA." February 9, 2009.
1.6 Treadwell and Rollo, Environmental and Geotechnical Consultants. "Peer Review
of Waste Discharge Requirements Monitoring, Oyster Point Landfi1114ysterPolnt Business Park,
South San Francisco, CA." February 3, 21)09.
1.7 Treadwell and Rolla, Environmental and Geotechnical Consultants. "Methane
Mitigation Systems: Description and Unii: Costs, Oyster Point Landfill/Oyster Point Business
Park, South San Francisco, CA." January 29, 2009.
1 _$ Treadwell and Rollo, Environmental and Geotechnical Consultants. "BAAQMD
Permit Exemption for Landf 11 and Building Methane Mitigation Systems, Oyster Point
Landfill/Oyster Paint Business Park, South San Francisco, CA." January 29, 2009.
1.9 Treadwell and Rollo, Envi~ranrnental and Geotechnical Consultants. "Preliminary
Foundation Design Criteria, Oyster Point Development, South San Francisco, CA."January 16,
2009.
l .10 McCampbell Analytical, Inc. Warlc Order Nos. 0$127G0 and 0812696, Sample
Analysis and QC Report, Oyster Point. January 5, 2009.
sf-2634417 K-1
1.1 1 MACTEC Engineering and Consulting, Inc. "Phase I Environmental Site
Assessment, {oyster Point King/SKS and City Parcels, Gystea• Point and Marina Boulevards,
South San Francisco, CA." September 26, :2008.
2. Other Documents.
2.1 Terra Engineers, Inc. with P'ES Environmental, Inc. "2008 Semi-Annual
Monitoring Report, Former Oyster Point Landfill, Soui}j. San Francisco, CA." July 22, 200$.
2.2 Terra Engineers, Inc. with F'ES Environmental, Inc. "Annual Report 2007, Farmer
Qyster Point Landfill, South San Francisco, CA." January 28, 2008_
2.3 Kleinfelder West, Inc. "Feasibility Study and Cost Estimate, Proposed Oyster
Point Marina Redevelopment, South San Francisco, CA."November 12, 2007.
2.4 Gabewell, Inc, with Harding Lawson Associates. "Final Closure and Post-Closure
Maintenance Plan, Oyster Point Landfill, South San Francisco, CA." September 2000.
2.5 Regional Water Quality Control Board. "Order No_ 00-046 Updated WDR and
Rescission of Order No. 77-] 9." lime 21, :?000.
2.6 CH2MHil1, "Soil Sampling and Analysis Plan for Characterizing and Disposing
of Excavated Soil at the Gull Drive Excav,atian, South San Francisco," July 23-2~1, 1996.
2.7 CH2M1Ii11, "Construction Quality Assurance Report, City of South San Francisco
Landfill, Gull Drive Final Cover Extension, South San Francisco, CA," October I99G.
2.8 CH2M1-Iill, "Project Plans far Construction of City of South San Francisco
Landf 11, GuII Drive Final Cover Extension," April 1996.
2.9 Levine-Fricke, "Figure 4: dump Locations" [loose page, undated.
2.10 CH2MHill, "Work Plan for the Gut] Drive Field investigation, South San
Francisco, CA," January 1996_
2.11 ICF Technology, "CERCLA Site Inspection, Oyster Paint Marina, oyster Point
Boulevard, South San Francisco, CA 94080, San Mateo County," August 12, 1987
-_ -- sf-2634417 K_2 C~
EXNIBTT L: Fees, Taxes, Exactions, Dedication Obli ations, and Assessments
The following list of existing and potential future fees, exactions, taxes, and assessments
(collectively, "Assessments") represents, t:o the best of the City's knowledge as of the Effective
Date of the MCU, those Assessments That tl}e City currently imposes, or may impose in the
future. From time to time, the City may update, revise, ar change its Assessments. The Parties
agree that such updates, revisions, and changes shall not prevent the City from assessing the
updated, revised, or changed Assessment against the Marina Property or Business Park, as of the
effective date of the Development Agreement. Further, this list is intended for disclosure
purposes only, and shall not in any way limit the types ar amounts of Assessments that may be
lawfully imposed upon development or use of dle Marina Property ar Business Park, or which
may otherwise be included as part of the L)eveloprnenl Agreement.
(. Impact Fees (Existing Fees).
(a} Childcare Impact Fee (SSFMC, § 20.115.030; Resolution 1301-2001)
{b} Cultural Arts Fee (SSFMC, ch. 2Q.10]} (May be paid as a credit against
landscaping requirements)
(c) East oi' 1Q1 Trafific impact Fee {Resolution 84-2007}
(d} Oyster Point Grade Separation Fee (Resolution 102-9d)
(e} Sewer Impact Fee {Resolution 97-2002)
(f) General Plan Maintenance Fee (Resolution 74-2007}
{g} Permit Processing Fees (.Adopted pursuant to City's Master Fee Schedule for
processing of land use entitlements, including with out limitation, General Pian
amendments, zoning chanl;es, precise plans, development agreements, conditional
use permits, variances, and transportation demand management plans)
2. Impact Fees (Potential Future Fees .
(a) Commercial Linkage Fee
Hoarsing.Elernent P~°ogranx 1-3~1: The City shall determine the feasibility of
establishing a commercial linkage fee_
Statics: City has not yet initiated the process for adoption of a Commercial
Linkage Fee.
a~
si-2634417 - L 1
{b) Parlcs and Recreation Fee
General Plan Policy 5.1-1-3: Prefer in-lieu fees to dedication, unless sites offered
for dedication provide features and accessibility similar in comparison to sites
shown on [General Plan] Filure 5.1.
Staters: City has prepared anal published a Request for Proposal to develop a Parks
& Recreation Fee.
(c) Public Art Fee
General Plan Policy 2-1-21: Initiate a study to increase provision of public art
throughout the community through imposition of either on-site improvements or
in-lieu fees.
Status: City has not yet initiiated the process for adoption of a Public Art Fee.
(d) Wetland Conservation Fees
General Plan Policy 7.1-I-S~: Require development on wetlands delineated in
General Plan] figure 7-1 to complete assessment of biological resources.
General Plan Policy 7.1-1-'i: Work with private, non-profit conservation, and
public groups to secure funding for wetland and marsh protection and restoration
projects.
Status: Whi]e City continues to implement the General Plan policies, the process
for a fee adoption has not yet been initiated.
(e} Starmwater Fees
General Plarz Policy ~.Z-G-1: Minimize the risk to life and property from
flooding in South San Francisco.
Status: The City has not yet initiated the process for adoption of a Stormwater
Fee.
3. User Fees.
(a) Sewer Service Charges (assessed as part of property tax bill)
4. Other Potential Exactions.
(a) Capital Improvement Program Contribution (Resolution 98-?001)
General Plan Policy 4.2-I-6: Incorporate as part of the City's Capital
Improvement Program (CIP) needed intersection and roadway improvements to
enhance mobility in the East of l Ol Area.
~~
-- sf-2634417 L-2
Statars: Adopted and updated from time to time.
(b) Mass Decontamination Facility Contribution
{c) Green Building Requirements
5. Existing General Plan East of l.0"l Sub-Area Policies.
(a) Employee-Serving Amenities
Ge~zer-al Pla~z Policy 3.5-1 !3: Encourage the development of employee-serving
amenities with restaurants, cafes, support commercial establishments such as dry-
cleaners, to meet die needs of the employees in the East of 101 area. Such uses
could be located in independent centers or integrated into office parks ar [sic]
technology campuses. -
{b) Waterfront Enhancement
Geize~~al Pln~z Policy 3.5-I-13: Facilitate waterfront enlancement a11d accessibility
by:
Establishment of uses that would bring people to the waterfront (see policies
3.5-I-8 and 3.5-I-9);
• Establishment of a bayshore design review area as pact of the Zoning
Ordinance; and
• Ensuring that the Park Recreation and Open Space Master Plan include specific
improvements for s}lore'[ine enhancement and accessibility, as spelled out in the
East of 101 Area Plan.
si-263A417 - -L-3
EXI~IBIT M: Confidentiiality Agreement Qf Aprit 15, 2049
sf-2634417
MiV i i 95207-10
~~
M-1
QYSTER POINT MARTrIA DEVELOPNEENT -CONFIDENTIALITY AGREEMENT
This Agreement ("Agreement") is entered into as of April ~ ZQQ9 ("Difective Date") by and
among the City of South San Francisco ("City"), the Redevelopment Agency of the City of
South San Francisco ("Agency', and Oyster Point Ventures LLC ("Developer") (collectively,
the "Parties"}. The Parties wish to protect the confidential information of each Party, acting as a
discloser (each a "Discloser"), that maybe disclosed to each other Party {each a "Recipient"} in
connection with Discloser permitting certain employees, agents, and/or consultants of Recipient
("Designated Personnel") to receive and review, and to be provided with copies of, information
and materials related to the financial and busuaess activities of Discloser_ The information may
be disclosed for the purpose (the "Purpose") of attempting to resolve certain issues that have
arisen or may arise between Recipient and T?isclaser related to the negotiation, planning, and
implementation of the collaborative development of the Oyster Point IvlarinalOyster Point
Business Park area (the "Project"}. In consideration of the foregoing and the rights and
obligations set forth herein, the Parties hereby agree as follows;
X_ PROr'xIETnRYllvroRiv~TION.
"Proprietary I.nforrnaiian" means any and all information and material disclosed by Discloser
to Recipient or obtained by Recipient thrvagh inspection ar observation of Discloser's financial
or business records, property, facilities or businesses processes or activities, whether before ar
after the signing of this Agreement. Proprietary Information, includes, without limitation, any
(a} financial, technical, architectural, engineering, real estate, marketing, servicing, personnel
and other information and materials of Discloser and its employees, consultants, investors,
affiliates, suppliers, vendors, customers, clients and other persons and entities; and {b} bade
secrets, know how, ideas, designs, drativings, data, plans, strategies, and forecasts:
2. NoN-DISCLOSURE ANn Lutiti'IITED Usl~.
Recipient shall hold all Proprietary Information in strict confidence and shall not disclose any
Proprietary InfoIInation tv~any third party without the prior written consent of Discloser, whose
consent maybe granted, withheld or conditioned in its sole and absolute discretion. Recipient
shall disclose the Proprietary information only to its Designated Personnel on aneed-to-know
basis. Recipient shall not and shall not perrrut any Designated Personnel to use any Proprietary
Informative for the benefit of itself yr any third party or far any purpose other than the Purpose.
Recipient shall take the same degree of care that it uses to protect its own confidential and
proprietary information of similar nature and .importance (but in na event less than reasonable
care} to prntect .the confidentiality and avoid the unauthorized use, disclosure, publication or
dissemination of the Proprietary Information. Each Party shall obtain the consent of the other
Parties prior to issuing ar permitting any of its officers, employees or agents to issue any press
release ar other information to the press with respect to the Project or the Proprietary
Information. Recipient shall not make any copies of the Proprietary Information except to the
extent reasonably necessary to carry out the Purpose, or unless otherwise approved in writing in
advance by Discloser. Upon conclusion of the Purpose or earlier termination of this Agreement
by Discloser, (a) Recipient shall promptly return to Discloser, or, at Discloser's request, destroy,
all materials (in written, electronic ar other farm) containing or constituting Proprietary
sf-267t} i 69 i
Ml`I 12Z132Z 3 ~3
Information, including, without limitation, any copies and portions thereof, and (b) Recipient
shall not use the Proprietary Information in any vvay for any purpose.
3. ScoeE.
The obligations of this Agreement, including the restrictions on disclosure and use, shall not
apply with respect to any Proprietary Information to the extent such Proprietary Information: (a}
is or becomes publicly known through no act or omission of the Recipient; {b) was rightfully
known by Recipient before receipt frorr~ Discloser, as evidenced by Recipient's
contemporaneous written records; or (c) becomes rightfuily known to Recipient without
confidential or proprietary restriction from a source other than Discloser that does not owe a duly
of confidentiality to Discloser with respect to such Proprietary Information. In addition,
Recipient may use or disclose Propriet,~y Information to the extent (i} approved in writing in
advance by Discloser, or (iij Recipient is legally compelled to disclose such Proprietary
Information, provided, however, that prior to any such compelled disclosure, Recipient shall give
Discloser reasanabie advance notice of any such disclosure and shall cooperate with Discloser in
protecting against any such disclosure and/or obtaining a protective order narrowing the scope of
such disclosure and/or use ofthe Proprietary Information.
4. O~~vNEItsl3nrn.
All Proprietary Information (including, without limitation, all copies, excerpts, and portions
therea#} is and shall remain the sole properhy of L?isclaser. Recipient does not acquire {by
license or otherwise, whether express ar implii~) any intellectual property rights or other rights
under this Agreement or any disclosure hereunder, except the limited right to use such
Proprietary Information in accordance with the express provisions of this Agreement_ All rights
relating to the Proprietary Information that aze not expressly granted hereunder to Recipient aze
reserved andretainedbyDiscloser.
5. TERMINATION
Discloser rrray terminate this Agreement at any time upon written notice, and shall have no
obligation to disclose any Proprietary Information or to continue discussions relating to, or to
enter into or continue any arrangement or agreement relating to, the Purpose or any other matter,
except as agreed in writing by the Parties.
(, SURVIVAL OF CERTAIN RIGHTS AND UBL]IGATIGNS.
Sections 1 through 4 and 6 through 9 sht~ll survive the expiration or termination of Ibis
Agreement
7. REMEDIES.
The Parties agree that, due to the unique nafiure of the Proprietary Information, the unauthorized
disclosure or use of the Proprietary Information will cause irreparable harm and si~rrificant
injury to Discloser, the extent of which will Abe difficult to ascertain and for which there will be
no adequate remedy at law. Accordingly, the Parties each agree that each other Patty, acting as
Discloser, in addition to any other available remedies, shall have the right to an immediate
sf-2670169 .2
MN 122132-3 ~~
injunction and other equitable relief enjoining any breach or threatened breach of this
Agreement, without the necessity of passing ar-y bond or other security. Each Party, acting as
Recipient, shall notify ]'3isclaser in writing immediately upon Recipient's becoming aware of any
such breach or threatened breach.
8. 1V~ISCELLANEOUS.
This Agreement constitutes the entire agreement among the Parties concerning the subject matter
hereof and supersedes all prior ar contemporaneous representations, discussions, proposals,
negotiations, conditions, communications and agreements, whether oral or written, among the
Parties relating to the subject matter hereof and all past courses of dealing ar industry custom_
No amendment, modification or waiver of an.y provision of this Agreement shall be effective
unless in writing and signed by duly authorized signatories of each Party. The waiver by any
Party of a breach of or a default tutder any provision of this Agreement shall not be constnied as
a waiver of any subsequent breach of or default under the same or any other provision of this
Agreement, nor shall any delay or omission on the part of any Party to exercise or avail itself of
any right or remedy that it has ar may have hereunder operate as a waiver of any xight or remedy.
This Agreement shall be governed by and con:atrued in accordance with the Laws of the State of
California, USA, without reference to its conflicts of laws provisions. Should legal action arise
concerning this Agreement, the prevailing Party sha11 be entitled to recover all reasonable
attorneys' fees and related casts, in addition t+o any other relief which maybe awarded by any
court or other tribunal of competent jurisdiction. This Agreement and the rights and obligations
hereunder may not be assigned or delegated by any Party, in whole or part, whether voluntarily,
by operation of law, change of control or otherwise, wxthaut the prior written consent of the other
Parties. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit
of the Parties and their respective successors and permitted assigns. In the event that any of the
provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction
to be invalid ar unenforceable, the rernairung portions hereof shall remain in full force and effect
and such provision shall be enforced to the maximum extent possible so as to effect the intent of
the Parties and shall be reformed to the extent necessary to make such provision valid and
enforceable. The Parties aze independent conhactors, and no Party shall have any authority of
any land to bind any other Party in any respect. whatsoever.
IN WETNESS WHEREOF, the Pasties hereto have executed this ConSdentiality
Agreement as of the day and first above written.
sf-257oIb9 3
IvIN 12Z132Z-3
~~
CITY
CITY Or SOUTH S AN FRANCISCO,
a municipal corporation
r
By; ~
Name: Barry Nagel, City Manager
ATTEST: ~ /~
By: `~ . C-II
Cif-C-krk ~ ~
APPROVED AS TO FG 2:
B ~ t
Y
City Att rney
sf-2670359
MTV' 1221322-3
AGENCY
RLDEVELIJPMEN'TAGENOY OF THE CITY OIi
S+DUTH SAN FRANCISCO,
a pabli; ody orpnrafe and politic
Y
Name: Barry Nagel, Executive Director
ATTEST:
By.
Agency Secretary.
APPROVED AS TD FORM:
B~y:
Agency General Counsel
4
~W
DEVELOPER
QYSTERP4INT VENTifRES LLC,
n Delaware limited liability.canapany
By: SRI Nine Oyster Point LI.C,
a Delaware limited liability company;
i#s Mauagwg.Member
By:
Name: - -~~
'!
Its.
By: SKS Qyster poant, LLC;
a Delaware limited~liability company,
By:
Na3
~.
Its: 1~`u-~- - `~ ~~~ ~~
sf-26701 b9 ~