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HomeMy WebLinkAboutReso 122-1988 RESOLUTION NO. 122-88 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND WDT GATEWAY FOR FUNDING THE OYSTER POINT SEPARATION WHEREAS, Developer intends to develop that certain parcel of land located at the southeast corner of Corporate Drive and Gateway Boulevard, (Parcel 3C); and WHEREAS, City has by Resolution No. 171-84, adopted a funding formula for the payment of the cost of construction of the Oyster Point Separation; and WHEREAS, the Developer has obtained approval of a Precise Plan (PP-88-15) for a commercial structure, and the approval includes a condition that Developer contribute to the cost of construction of the Oyster Point Separation: NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the Mayor is authorized to execute the Agreement entitled "Agreement Between the City of South San Francisco and WDT Gateway For Funding The Oyster Point Separation". A copy of the Agreement is attached as Exhibit "Z". I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the 28th day of September , 1988, by the following vote: AYES: Councilmembers Mark N. Addiego, Richard A. Haffey, Gus Nicolopulos, Roberta Cerri Teqlia, and Mayor Jack Drago NOES: None ABSTAIN: None ABSENT: None EXHIBIT "Z" TO RESOLUTION NO. 122-88 AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND WDT GATEWAY FOR FUNDING THE OYSTER POINT SEPARATION THIS AGREEMENT is dated September 28 , 1988 and is by and between the City of South San Francisco (6ereinatter "City") and WDT Gateway, a California limited partnership (hereinafter "Developer"). WHEREAS, Developer intends to develop that certain parcel of land located at the northeast corner of Corporate Drive and Gateway (Parcel 3C) (hereinafter the "Property"); and WHEREAS, City has, by Resolution No. 71-84, adopted a funding formula for the payment of the cost of construction of the Oyster Point Separation; and WHEREAS, the Developer has obtained approval of a Precise Plan (PP-88-15) for a commercial structure to be constructed on the Property, and approval thereof includes among other things, a condition that Developer contribute to the cost of construction of the Oyster Point Separation; and WHEREAS, City and Developer now desire to enter into an Agreement to provide the mechanics for Developer to fund Developer's share of the Oyster Point Separation; NOW, THEREFORE, the City and Developer agree as follows: 1. Definitions. (a) The terms the "Project" or the "Property" mean the commercial structureconstructed at the southeast corner of Corporate Drive and Gateway Boulevard, South San Francisco, CA. (b) The term "Developer" means WDT Gateway and includes any and all of Developer's successors in interest or assigns of any description. (c) The "Oyster Point Separation" means a proposed grade separation at Oyster Point Boulevard and the Southern Pacific tracks, together with any related freeway access and street improvement including, without limitation, the freeway over-crossing, curbs, gutters, bicycle lanes, sidewalks, landscaping, signs and signals, land acquisition, utility and storm drain relocations, environmental assessments and reports, architecture and engineering. (d) The "cost of construction of the Oyster Point Separation" means the total cost of environmental studies, the total cost of construction, the total cost of acquisition of lands and easements and all incidental costs and contingencies thereto, including engineering, supervision and inspection as incidental to construction and acquisition and including any financing costs, such as bond discount, reserve fund, bond counsel fees and printing and advertising costs, which arise from any bond financing necessary to provide funds or repayment of funds for construction costs of the project. (e) "ADT" means average daily trip generation oriented to or from Highway 101, northbound~ southbound, or crossing Highway 101. The Project ADT for each type of development in the Project shall be as set forth in Exhibit I to Exhibit "A"j attached and incorporated. (f) "Total Project ADT" means the total ADT generated by types and densities of use on the Property for which final discretionary approval has been granted by City. (g) "Contribution" is the cash amount Developer is obligated to pay based upon the formula contained in Exhibit "A", as applied to total Project ADT. 2. Developer Contribution. Developer shall Contribute to the cost of the Oyster Point Separation at a rate in accordance with the Oyster Point Contribution Formula set forth in Exhibit "A". If, after this Agreement is extended' the City should revise the formula such that Developer's required contribution would be altered, Developer's participation in funding shall be at the revised funding level. 3. Payment of Contribution. (a) Developer shall pay Developer's Contribution for the Cost of Construction at the Oyster Point Separation in cash at such time and in such amounts as requested by City, except as to requests made pursuant to subparagraph 3(c) and except as provided in subparagraph 3(f). (b) Developer shall pay to City a cash sum of $131,716 prior to the issuance of a building permit. This amount may be guaranted by a Letter of Credit, subject to the approval of the City Attorney. However, if payment is guaranteed by a Letter of Credit the sum shall be increased by 15[ to account for inflation. The Letter of Credit amount is $155,000. Upon Developer's payment of the above amounts, Developer will have paid a contribution which is equal to the payment for Developer's total project ADT of 767 at the date this Agreement is executed. In the event that Developer obtains final discretionary approval for changes in the densities or types of use authorized on the Property, then Developer's Contribution based upon total Project ADT shall be adjusted in accordance with Exhibit "1" to Exhibit "A". Thereafter, at any time prior to the completion of the Oyster Point Separation and all associated transportation improvements, Developer shall, prior to the issuance of a building permit for any building (or modification thereto) within the project which generates ADT in excess of the Total Project ADT set forth above~ pay its Cash Contribution based upon ADT for the building (or modification) for which the permit is to be issued. (c) Developer may, at its own election, secure its obligation pursuant to subparagraph 3(b) above by posting with the City an unconditional letter of credit substantially complying with the form shown in Exhibit "B", drawn only upon "Acceptable Financial Institutions" as listed in Exhibit "C" in the amount of all of Developer's cash contribution then due and unpaid times the Engineering News Record Construction Cost Index for San Francisco at date of Cash Payment divided by 5139.61 (i.e. Contribution X CCI = Amt. of Letter of Credit b139.bl -2- payable to City) Upon such a posting, Developer shall have met the prerequisite of subparagraph ~(b) for the issuance of a building permit. Thereafter, Developer shall, upon a request for funds pursuant to subparagraph 3(a) above, pay its cash contribution into the Oyster Point Separation Fund within thirty (30) days of the request. (d) Construction of the Oyster Point Separation could proceed at such a rate that funds will be needed for that improvement before Developer's Contribution would otherwise be required hereunder. If that occurs the City shall request and Developer shall pay in cash the full amount of Developer's Contribution based on the Total Project ADT not already paid in cash. Upon such request by City, Developer shall pay such amounts within thirty (30) days of City's request therefor. In the event that City collects Developer's Contribution pursuant to this subparagraph 3(d) and the Oyster Point Separation is not physically under construction prior to December 31, 1993, City shall refund all contributions made by Developer plus interest, if any, earned thereon. (e) All cash and letters of credit shall be held by the City in a special fund, segregated from all general funds of the City, which shall be irrevocably earmarked for the Cost of Construction of the Oyster Point Separation as herein defined and for no other purpose or purposes whatsoever unless and until the repayment provisions of Paragraph 4 of this Agreement are implemented. All interest earned on cash within the Fund shall be credited to the Fund. (f) City agrees to make any requests for cash pursuant to this Paragraph 3 upon all developers who are required to contribute to the Oyster Point Separation. Such request shall be made upon each developer in an amount equal to the amount that the Developer's proportionate share of the total Cost of Construction of the Oyster Point Separation bears to the total request then being made. Nevertheless, City shall not be required to successfully collect the contribuitons, and Developer's obligation under this Paragraph 3 to pay its Contribution in a timely fashion shall not be affected by failure of the City to collect the contributions of other developers. Upon City's request for a cash Contribution by Developer, whether for Cost of Construction as contemplated in subparagraph 3(a) above or for the full amount of the projected Contributions by Developer as contemplated in subparagraph 3(d) above, processing of all subdivision or parcel maps and of building permits and occupancy permits shall be halted for development on the parcel or parcels owned by Developer until payment of Developer's cash Contribution is received. City will pay an amount equal to its proportionate share of the Cost of Construction of the Oyster Point Separation at the same time that it expends Developer's proportionate share. 4. Refunds of Excess Payments. It is recognized that the City will make every effort to secure maximum participation in the Oyster Point Separation Project, and for greater state and/or federal contributions to the Oyster Point Separation. Any funds collected in excess of those needed for the local share contribution and interest on such excess funds shall be refunded to Developer in accordance with the Oyster Point Separation Fund Repayment Formula detailed in Exhibit "D", attached and incorporated. -3- 5. No Further Fees or Contributions. It is understood and agreed that the obligation of Developer to contribute based upon Total Project ADT and to perform other obligations expressed herein shall be the sole obligations of Developer or any other owner of all or any portion of the Property with respect to the construction of the Oyster Point Separation or any part thereof or with respect to traffic mitigation at the Oyster Point/Southern Pacific/Highway lO1 intersections as required by the intensity of development approved in the Use Permits and/or Subdivision Maps approved prior to this Ageement except as provided in 3(b) above. No other construction, payment of fees, or contribution or the like with respect to the Oyster Point Separation or any part thereof shall be required of Developer or any owner of any portion of the Property as a condition to or in connection with issuance or approval of any subdivision map, parcel map, use permit, building permit, occupancy permit, or any other permit approval or authorization whatsoever. Once the Oyster Point Separation and all associated transportation improvements are built and paid for, Development's obligation to contribute to the Oyster Point Separation shall terminate. Such participation termination shall not apply to any future transportation projects that may be implemented by the City Council. 6. Assignment: (a) Developer may at any time or from time to time lease, sell or otherwise transfer or assign (hereinafter "transfer") its rights, title or interest in or to all or any portion of the Property. Immediately upon such a transfer, Developer shall notify the City of the name and address of the transferee and shall supply City with a signed original of the "Assignment." (b) Notwithstanding the foregoing, Developer agrees that Developer shall remain primarily liable for the Contribution due with respect to any lot or parcel conveyed by Developer until the City receives the cash payment contemplated in Paragraph 3 above, whereupon Developer's total obligation shall be reduced by the ADT attributable to the cash payment. Developer also specifically agrees that Developer shall pay, within thirty (30) days of City's request, any and all cash contributions required as a condition to issuance of a building permit for any building (or modification thereto) the use of which will generate ADT on the Property in excess of 767 when prior to the completion of the Oyster Point Separation and all associated transportation improvements, the building permit is requested for construction or modification to a building on the Property owned by the Developer on the date of this Agreement and subsequently conveyed by Developer by sale or lease or otherwise. 7. Recordation. The City shall, upon execution, cause a copy of this Agreement and any amendments to it or assignments of rights or responsibilities hereunder to be recorded in the Office of the Recorder of the County of San Mateo as a restrictive covenant upon the Property immediately upon its execution. 8. Notices. All notices required or permitted to be given hereunder shall be in writing and deemed to be given and received when either personally delivered or forty-eight (48) hours after deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: -4- To Ctty: Ctty C1 erk P.O. Box 711 South San Francisco, CA 94083 To Developer: WDT-Gateway 900 Welch Rd.j Suite 10 Palo Alto, CA. 94304 Atten: Managing General Partner Each party by notice as herein provided may change such address for purposes of subsequent notices. 9. Captions. The captions of articles, sections and paragraphs are for convenience only and shall not affect the meaning of this Agreement. 10. Capitalized Terms: All capitalized items which are defined terms shall have the meanings set torth in this Agreement. 11. Time. Time is of the essence in this Agreement. 12. Governing Law: This Agreement shall be governed by the laws of the State of Ca)itornia. 13. Invalidity or Illegality. If any provision, or portion of a provision is adjudicated illegal or unenforceable, the remaining provisions, or portions of such provisions, of this Agreement shall remain in full force and effect. 14. Attorney's Fees. In the event of any litigation to construe, interpret or enforce this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to other such relief as the Court may award. IN WITNESS WHEREOF, the undersigned have executed this Agreement. WDT GATEWAY, a California limited partneship ornia corporation Richard R. Dewey, Jr., President ATTEST: CITY OF SOUTH SAN FRANCISCO a Municipal corpration City Clerk Mayor APPROVED AS TO FORM: C1 ty AttorneyL/ -5- OYSTER POINT CONTRIBUTION FORMULA 1. General Provisions: Contributions shall be based upon weekday Average Daily Trip (ADT) generation by various land uses as set forth in Exhibit i attached hereto and incorporated herein by reference as though set forth verbatim. Note: (a) When ADT generation is based upon gross square foot- age of a building, the gross square footage includes the total floor area within the building shell, which shall be computed by measuring to the inside finished surface of permanent outer building walls. The gross square footage of a building shall be the sum of the square footage of all enclosed floors of the building, including basements, mechanical equipment areas, corri- dors and general support areas and the like. Gross square footage shall not include first floor open lobby area in excess of four hundred (400) square feet, atrium openings which extend to floors above the atrium floor, or Penthouses used exclusively to house mechanical equip- ment. Credit may be given for ADT generated by uses pre- viously existing on the parcel(s) proposed for development if those previous uses were lawful and active within two (2) years prior to the date and project proposal was accepted by the City as a complete application. 2. Contribution Rate: Engineering News Record Construction Cost Index For San Francisco at date of Cash Payment Amount of ADT x $154' x b139.bl** = Contribution 3. Methods of Payment: (a) In most cases, payment or guarantees of payment shall be made prior to issuance of building permits. (b) In some cases (i.e. projects underway prior to adoption of the formula contained herein) guaranteed delayed payment plans may be approved by agreement with adequate surety. Delayed payment agreement will be subject to adjustment in accordance with Engineering News Record Index changes. In no case shall the per-trip contribution amount be less than the $154 figure set forth above. Should the Engineering News Record Index be discontinued, the formula provided above shall be converted to any new or changed index which might replace said index. *The $154 figure set forth above is based upon the total estimated cost of the Oyster Point Separation divided by the projected total ADT applicable to that project. **July, 1983 Engineering News Record Construction Cost Index for San Francisco. EXHIBIT "A" Land Use Truck Terminal General Industrial Manufacturing Warehousing Hotel Motel General Office Building Research Center Recreational Club Dinner House Restaurant EXHIBIT I TO OYSTER POINT CONTRIBUTION FORMULA General Description ADT Trip Rate Per 1000' Gross Square Feet Facilities where goods are transferred between trucks, trucks and railroads, or trucks and airports. 9.86 Typical uses are printing plants, material testing laboratories, assemblers of data processing equipment, and power stations which usually employ less than 500 emp- loyees with an emphasis on uses other than manufacturing. 5.46 Primary activity is the conversion of materials or parts into finished products. Facilities which are all or largely devoted to storage of materials. 3.99 l) 4.50 Place of lodging which generally contains one hundred (100) or more lodging rooms or suites and which could include restaurants, cocktail lounges, meeting rooms, banquet rooms, and other retail and service shops within the same building. 10.50 (Per Room) Place of lodging which ordinarily contains less than one hundred (100) rooms or suites which could include a restaurant on the same premises. 10.14 (Per Room) Office building housing one or more tenants 12.30 and is the location where the affairs of a business, commercial or industrial organization, professional person or firm are conducted and related support services. Facilities or groups of facilities devoted nearly exclusively to research and develop- merit activities. 5.30 Privately owned facilities including tennis courts, swinmning pools, racquet ball courts, handball courts, and other minor gymnastic facilities. 11.70 Eating establishments of high quality in interior furnishings and food which generally have a customer turnover rate of one hour or longer and are not open 24 hours per day. 56.30 Page i of 3 Land Use EXHIBIT 1 TO OYSTER POINT CONTRIBUTION FORMULA General Description ADT Trip Rate Per 1000' Gross Square Feet High Turn-over Restaurant Eating establishments which generally have a customer turn-over rate of less than one hour, including, but not limited to, coffee shops, cafeterias and delicatessens. 164.40 Shopping Center General Commercial An integrated group of commercial est- ablishments which is planned, developed owned, and managed as a Unit: Under 50,000 Gross Square Feet 50,000 Gross Square Feet and Greater Establishments contained within freestand- ing commercial buildings including strip commercial buildings. 115.8 79.1 2) 48. O0 Banks and Savings and Loan Marina Single Family Dwellings Townhouses Condominiums and Apartments Contain banks or savings and loan facilities. Public or private marina with some having social activities scheduled throughout the week. 74.00 1) 3.2/berth 3) lO.O/unit 3) 9.O/unit 3) 5.0/unit Except for general office buildings and banks and savings and loan use, all land use listed above shall be calculated at the applicable primary land use rate not- withstanding the fact that the use may include up to 25% of office use ancillalry to the primary use. Office use exceeding 25% for a given structure shall be computed~at the general use rate as set forth above. Any other uses in the same structure shall be computed as a separate use of that structure. The following typical example would apply to a 50,000 square foot industrial building which contains 30% Office, 2% Delicatessen, 8% General Industrial and 60% Warehousing: Average Trip Rate ADT Square 1000 Sq. Ft. of Trip Use Feet Gross Floor Area Generation Office 2,500 (15,000-12,500) Delicatessen 1,O00 General Industrial 4,000 Warehousing 42,500 (30,000+12,500) 12.30 92.25 164.40 164.40 5.46 21.84 4.50 191.25 40~.24 In this case, the total trip generation would be 409 trips per day. * See next page Page 2 of 3 *For specific definitions of land use categories and data supporting trip generation rates see "Trip Generation Second Edition - 1979" prepared by the Institute of Transportation Engineers. A copy of this report~ Including use definitions and variations of the above 11sted rates~ has been placed in the files of the Depart- ment of Community Development, 400 Grand Avenue, South San Francisco, CA 94080. 1) A Traffic Impact Analysis of the Proposed Oyster Point Business Center; TJKM, Transportation Consultant, Dec. 1981. 2) CALTRANS - 12th Progress Report on Trip Ends Generation Research Counts, December, 1979. 3) Terrabay Development; Final Environmental Impact Report, August, 1982. Page 3 of 3 EXHIBIT "B" SAMPLE SAJ4PLE SAJ4PLE Irrevocable Letter of Credit No. Date: Amount TO: CITY OF SOUTH SAN FRANCISCO Gentlemen: We hereby authorize you to draw on at sight for account of SAMPLE Name ot Bank and Branch Location Name and Address of Developer times the Engineering News Record Con- up to an aggregate amount of struction Cost Index for San Francisco at date of Cash Payment divided by 5139.61 CCI (i.e. Construction X 5139.61 = Amt. of Letter of Credit payable to City). Drafts to be accompanied by: The original of this Letter of Credit and its amendments, if any. We are informed that this Letter of Credit is issued to guarantee a portion of Developer's required Contribution of the Cost of Construction of the Oyster Point Separation as Defined in an Agreement entitled "Agreement for Funding Oyster Point Separation" entered into by and between Developer and the City of South San Francisco and dated Drafts drawn hereunder must specifically mention the number and date of this Letter of Credit. The amount of each draft negotiatedj together with the date of negotiation, must be entered on the reverse side of this Letter of Credit. We hereby agree with you that the drafts drawn under and in accordance with the terms of this credit shall be duty honored upon presentation to the drawee on or before . uate Signatures ACCEPTABLE FINANCIAL INSTITUTIONS FOR INVESTMENT United States: Bank of America Bank of Boston Citibank Chase Manhattan Bank Manufacturers Hanover Trust Morgan Guaranty Trust Chemical Bank Continental Illinois Bankers Trust First National Bank of Chicago Security Pacific National Bank Wells Fargo Bank Crocker National Bank First Interstate Bank of California Mellon Bank Seattle First National Bank Republic National Bank, Dallas Harris Trust Company Texas Commerce Bank Northern Trust Rainier National Bank Pittsburgh National Bank Ameritrust First National Bank of Boston U.S. National Bank of Portland Northwest Bancorp First International Bancorp First Bank System First City Bancorp National Detroit Bank of New York European American Bank North Carolina National Bank Union Bank Philadelphia National Bank Southeast Banking Corp. Valley National Bank of Arizona Detroit Bank Corp. Wachovia Corp. National City Corp. Mercantile Texas Corp. Note The institutions listed are taken from the fifty largest U.S. banks by assets. Only those U.S. banking institutions listed above having California offices are acceptable institutions. EXHIBIT "C" Page 1 of 3 France: Banque National de Paris Credit Agricole Mutuel Credit Lyonnais Societe Generale Germany: Deutsche Bank Dresdner Bank Westdeutsche Landesbank Commerzbank Bayerische Landesbank Bayerische Vereinsbank Bayerische Hypotheken und Wechsel Bank Great Britain: National Westminister Bank Barclays Bank Midland Bank Lloyd Bank Japan: Dai-Ichi Kangyo Bank Norinchukin Bank Fuji Bank Sumitomo Bank Mitsubishi Bank Sanwa Bank Industrial Bank of Japan Long-Term Credit Bank of Japan Tokai Bank Bank of Tokyo Mitsui Bank The Netherlands: Rabobank Nederland Alegmene Bank Mederland Amsterdam-Rotterdam Bank Page 2 of 3 OYSTER POINT SEPARATION FUND REPAYMENT FORMULA Any funds collected in excess of those needed for the local share of the Cost of Construction of the Oyster Point Separation shall be refunded to Developers in the same proportion that the ADT of their particular project bore to the Total ADT upon which the total contributions by all developers to the Oyster Point Separation project were based. Refunds to be made shall be determined in accord- ance with the procedure outlined on Page 2 of this exhibit setting forth examples of payment refunds. Refunds, if any are to be made, shall be made on a date not later than five years and two months after final acceptance by City of the work to construct the Oyster Point Separation. In the absence of excess payments toward the principal of the project, no refund will be made for interest earned on such payments; such interest will be applied to the Agency's share and will be reimbursed to the Agency. If the net local share exceeds total payments into the principal of the fund, there will be no repayment to Developers unless additional payments made by other Developers follow- ing the date of project completion bring total payments to a level exceeding the local share. EXHIBIT "D" Page i of 2 EXAMPLES OF PAYMENT REFUNDS ASSUMPTIONS 1 Project ADT 2 3 Total % Pmt. Repaid Payments Project ADT divided by total ADT 4 Amount of Repayment* $1,380,000 x COL. 3 Developer "A" 37,000 ( 1 ) Developer "B" 4,000 Developer "C" 3,750 Developer "D" 12,000 Developer "E" 7,000 Redevelopment Agency (Including Future) 40,000(1 ) $3,800,000 .357 $492,660 650,000 .039 53,820 600,000 .036 49,680 1,900,000 .116 160,080 1,100,000 .067 92,460 2,500,000 .385 531,300 TOTALS 103,750 9,750,000 1.000 $1,380,000 Note (1) - After adjustment for contributions to East Grand Avenue Overpass at the rate of $154 per trip Example #1 - Assumes net local share cost = Assumes total interest earnings = Total excess payments = $1,250,000) Total excess interest = 130,000) $8,500,000 1,000,000 1,380,000 *Repayment calculated by mutliplying excess payment and interest costs by % of ADT in Column 3 (amount in this example shown in Column 4 above). Example #2 Assumes net local share cost : $10,750,000 Total interest earnings : 1,250,000 Total excess payments : 0 Total excess interest: 250,000 (Note: In the absence of excess payments no repayment will be made and excess interest will be applied to agency share of future contributions.) Example #3 Assumes net local share cost = $12,000,000, Assumes total interest earnings : 1,250,000 Total excess payments : 0 Total excess interest 0 (Note: Because net local share exceeds total Payments will be no repayment to developers unless more than $1,000,000 in additional pay- ments are made by other developers following date of project completion.) Page 2 of 2