HomeMy WebLinkAboutOrd 1990ORDINANCE NO.199O
AN ORDINANCE OF THE CITY OF BURLINGAME ADOPTING A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF BURLINGAME AND
220 PARK - BURLINGAME LLC, RELATED TO THE DEVELOPMENT
PROJECT At 220 PARK ROAD (HISTORIG POST OFFICE PROJECT).
WHEREAS, on April 9,2020,220 Padr. - Burlingame, LLC (Sares Regis / Dostart
Development Company) ("Developef) submitted a proposal for the adaptive reuse and
redevelopment of the former Post Office building at 220 Pay'r. Road, to include construction of a
new six-story, 140,000 sf office project with "l '1,915 sf of ground floor retail and two levels of
underground parking with 280 parking spaces, including portions of the underground garage
below City Parking Lot E (the "Post Office Project"), and filed applications for Commercial
Design Review, (Historic) Parking Variance and (Historic) Height Variance (collectively, the
"Project Approvals"); and
WHEREAS, on November 23, 2020, the Burlingame Historic Preservation Commission
(comprised of the Planning Commission) approved listing the Post Office building on the City's
Local Register of Historic Places; and
WHEREAS, pursuant to CEQA the City Council previously certified an Environmental
lmpact Report for City's 2040 General Plan (Envision Burlingame) (the 'General Plan EIR'),
approved the 2040 General Plan in reliance on the General Plan ElR, and in connection therewith
adopted a mitigation measures to be applied to the development activities contemplated by the
2040 General Plan; and
WHEREAS, Section 15183 of the CEQA Guidelines provides that projects which are
consistent with the development density established by existing zoning, community plan or
general plan policies for which an environmental impact report was certified shall not require
additional environmental review, except as might be necessary to examine whether there are
project-specific significant effects which are peculiar to the project or its site or were not analyzed
in the previous environmental impact report; and
WHEREAS, pursuant to CEQA the City through an independent consultant prepared an
initial study which evaluated potential significant environmental effects of the Post Office Project
(the "Project lnitial Study"), considered the treatment of such effects by the General PIan EIR and
Specific Plan MND, identified the mitigation measures, Specific Plan Standard Conditions,
General Plan goals and policies, and existing rules and regulations applicable to such effects, and
concluded that all such effects were adequately addressed, no further CEQA analysis was
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WHEREAS, pursuant to the California Environmenlal Quality Act ("CEOA') (set forth in
Public Resources Code, Section 21000 et seq.) and lhe State CEQA Guidelines ('CEOA
Guidelines") (set forth in California Code of Regulations section 15000 et seq.), the City Council
previously adopted a Mitigated Negative Declaration for City's Burlingame Downtown Specific
Plan (the "Specific Plan MND"), approved the Specific Plan in reliance on the Specific Plan MND,
and in connection therewith adopted mitigation measures as Standard Conditlons of Approval to
be applied to the development activities contemplated by the Specific Plan; and
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required, and consideration of the Project Approvals can rely on CEQA Guidelines section 15183;
and
WHEREAS, on November 23,2020, on the basis of the Project lnitial Study and related
documents submitted and reviewed for potential environmental impacts per CEQA, and
comments received and addressed by the Planning Commission, the Planning Commission
adopted a CEQA finding that there is no substantial evidence that the Post ffice Project will have
a significant effect on the environment, and may rely on CEQA Section 1 5183, based on
consistency with the General Plan and Downtown Specific Plan, with incorporation of mitigation
measures set forth in a Mitigation Monitoring and Reporting Plan ("MMRP"); and
WHEREAS, on November 23, 2020, after adopting its CEQA finding the Planning
Commission approved the Project Approvals subject to the MMRP; and
WHEREAS, on December 11,2020, pursuant to CEQA the City posted with the County
Clerk of the County of San Maleo a CEQA Notice of Determination announcing approval of the
Project Approvals and the CEQA documentation on which the Project Approvals relied; and.
WHEREAS, Developer has requested that the City enter into a proposed statutory
development agreement regarding the Post Office Project pursuant to California Government
Code section 65864 et seg. (the "Development Agreement Statute"), which authorizes a city and
a party having a legal or equitable interest in real property to enter into a voluntary binding, long-
term development agreement, which among other things can establish certain development
rights in property and provide certain benefits for the public; and
WHEREAS, the City is informed that Developer is under contract with the current property
owner to purchase fee title to the property at220 Pa*. Road, and therefore has sufficient interest
in the property to enter into a development agreement; and
WHEREAS, City staff and Developer have negotiated proposed terms for a development
agreement for the Post Office Project, attached hereto as Exhibit "A" ("Development
Agreement"). The Development Agreement would provide certain benefits to Developer not
otherwise available under the regular permitting system (here, easements to use City land,
vested rights and a longer permit life to build) and in return would provide to City certain
substantial above-nexus community benefits, including public parking rights within the Post
Office Project garage on nights and weekends, construction of public amenity improvements
between the City's future potential Town Square and the rehabilitated Post Office building, and
a $2,000,000 (Two Million Dollar) cash payment, which can be used for construction of the Town
Square if so desired by City; and
WHEREAS, on January 11,2021, as required by the Development Agreement Statute,
the Planning Commission reviewed the proposed terms for the development agreement, and
recommended approval of a development agreement consistent with those terms to the City
Council; and
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WHEREAS, at its regular meeting of February 1, 2021, the Burlingame City Council
conducted a duly noticed public hearing to consider the Planning Commission's recommendation
to adopt a Development Agreement between the City and Developer, related to the Post Office
Project; and
WHEREAS, pursuant to CEQA the Development Agreement is considered a subsequent
approval for the Post Office Project and may rely on the CEQA documentation used to support the
Project Approvals to the extent appropriate.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME DOES
ORDAIN AS FOLLOWS:
$gg!igA[. The recitals set forth above are true and conect, and are hereby incorporated
herein by this reference as if fully set forth in their entirety.
Soction 2. The City Council hereby finds that the proposed Ordinance is in the public
interest.
Section 3. The City Council hereby finds, on the basis of the Project lnitial Study and
related documents submitted and reviewed for potential environmental impacts of the
Development Agreement under CEQA, and comments received and addressed by the Council,
based on substantial evidence in the record (i) there are no environmental effects peculiar to
the Development Agreement or its approval not previously identified as part of the Project
Approvals; (ii) there are no significant environmental effects associated with the Development
Agreement thal were not analrzed in the General Plan EIR with which the Development
Agreement is consistent; (iii) there are no potentially significant off-site impacts or cumulative
impacts from the Development Agreement which were not discussed in the General Plan EIR;
(iv) no new information has become available since certification of the General Plan EIR that
would indicate previously identified significant effects discussed in the General Plan EIR may
have a more severe adverse impact from the Development Agreement than as discussed in the
General Plan EIR; and (v) compliance with the mitigation measures set forth in the MMRP and
in the other conditions of approval for the Post Office Project will substantially mitigate all
environmental effects of the Development Agreement; and furthermore, the Specific Plan MND
provides additional documentation and support for the above findings; so that CEQA Guidelines
section 15183 is satisfied and can be relied on in approving the Development Agreement.
Section 4. That based on an analysis of the facts set forth above, the staff report to the
City Council, the presentation to the Council, supporting documents, and public testimony, the
City Council hereby adopts the following as its findings:
'1. The development agreement is consistent with the objectives, policies, general
land uses and programs specified in the General Plan and the Downtown Specific
Plan, with Variances for height and parking approved pursuant to the Historic
Preservation Ordinance.
The development agreement is compatible with the uses authorized in and the
regulations prescribed for the HMU (Howard Mixed Use) zoning district in which
the property is located, with Variances for height and parking approved pursuant
to the Historic Preservation Ordinance.
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2.
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The development agreement is in conformity with public convenience, general
welfare and good land use practices.
The development agreement will not be detrimental to the health, safety and
general welfare of the City or the region surrounding the City.
The development agreement will not adversely affect the orderly development of
property or the preservation of property values within the City.
The development agreement will promote and encourage the development of the
project by providing a greater degree of certainty with respect thereto.
The development agreement will result in the provision of public benefits by the
applicant, including, but not limited to, financial commitments and public parking
rights, the value of which exceeds the value of the easements to be granted to
Developer over a portion of the adjacent City-owned Lot E property.
The development agreement can be approved without additional CEQA
environmental review pursuant to CEQA Guidelines section 15183, in reliance on
the Project lnitial Study, the General Plan EIR and Specific Plan MND and the
Project Approvals.
Section 5. The City Council hereby approves and adopts the Development Agreement,
which shall be dated upon execution by the parties on or following the effective date of this
ordinance. The City Council authorizes and directs the City Manager to execute the
Development Agreement in substantially the form attached hereto as Exhibit "A", subject to minor
technical conforming changes as may be approved by the City Attorney. The City Council further
authorizes the City Manager to execute and record such documents, including the City Easement
and Public Use Agreement, and take such actions as are necessary to consummate the
transactions provided for in the Development Agreement.
Section 7. This Ordinance shall go into effect 30 days following its adoption.
Section 8. The City Clerk is directed to publish this Ordinance in a manner required by
law.
Section 9. City staff are directed to file a CEQA Notice of Determination regarding
approval of the Development Agreement with the County Clerk of the County of San Mateo.
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Section 6. lf any section, subsection, clause or phrase of this Ordinance is for any reason
held to be invalid, such decision shall not affect the validity of the remaining portion or sections
of the Ordinance. The City Council of the City of Burlingame hereby declares that it would have
adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof
inespective of the fact that any one or more sections, subsections, sentences, clauses or phrases
be declared unconstitutional.
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AYES:
NOES:
ABSENT:
Exhibit A: Development Agreement
Ann O'Brien Keighran ayo(
l, MEAGHAN HASSEL-SHEARER, City Clerk of the City of Burlingame, certify that the
foregoing ordinance was introduced at a regular meeting of the City Council held on 'l't day of
February 2021 and adopted thereafter at a regular meeting of the City Council held on the
day of 16b day of February 2021 by the following votes:
COUNCILMEMBERS: BEACH. BROWNRIGG, COLSON, O'BRIEN KEIGHRAN, ORTIZ
COUNCILMEMBERS: NONE
COUNCILMEMBERS: NONE
ATTEST:
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Meaghan Hassel - Shearer, City Clerk
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IEDT:NEIEITilGEI
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DEVELOPMENT AGREEMENT INCLUDING ALL EXHIBITS, INCLUDING
EASEMENT AND PUBLIC USE AGREEMENT/
SCHEDULE OF PERFORMANCE
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Burlingame
501 Primrose Road
Burlingame, CA 94010
Attention: City Manager
Space Above This Line Reserved for Recorder’s Use
Exempt from Recording Fee Per Government Code Section 27383
DEVELOPMENT AGREEMENT
by and between the
CITY OF BURLINGAME,
a California municipal corporation
and
220 PARK – BURLINGAME, LLC,
a Delaware limited liability company
regarding the
220 Park Post Office Project
Effective Date: ____________, 2021
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS..........................................................................................................1
1.1 Definitions ..........................................................................................................1
ARTICLE 2 GENERAL PROVISION..........................................................................................5
2.1 Ownership of Property; Termination by Outside Closing Date;
Recordation.........................................................................................................5
ARTICLE 3 EFFECTIVE DATE AND TERM............................................................................6
3.1 Effective Date.....................................................................................................6
3.2 Term....................................................................................................................6
3.3 City Representations and Warranties..................................................................7
3.4 Developer Representations and Warranties........................................................7
ARTICLE 4 DEVELOPMENT OF PROPERTY..........................................................................8
4.1 Vested Rights......................................................................................................8
4.2 Reservations of Authority...................................................................................8
4.3 Regulation by Other Public Agencies.................................................................9
4.4 Life of Project Approvals; Termination..............................................................9
4.5 Initiatives ..........................................................................................................11
4.6 No Affirmative Obligation to Develop; Timing of Development....................11
4.7 No Conflicting Enactments...............................................................................11
4.8 Changes in the Law...........................................................................................12
4.9 No Reservation of Sanitary Sewer or Potable Water Capacity ........................12
ARTICLE 5 FEES AND OTHER CHARGES............................................................................12
5.1 City Fees...........................................................................................................12
5.2 Other Agency Fees............................................................................................13
5.3 Taxes and Assessments.....................................................................................13
ARTICLE 6 DEVELOPER AND CITY COORDINATION AND COVENANTS...................13
6.1 Interim Use and Maintenance...........................................................................13
6.2 Building Permit Applications and Compliance................................................14
6.3 Temporary Construction Staging and Restoration............................................15
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6.4 Community Outreach........................................................................................16
6.5 Easements and Public Use................................................................................16
6.6 City Town Square Project Coordination...........................................................17
ARTICLE 7 ANNUAL REVIEW...............................................................................................20
7.1 Periodic Review................................................................................................20
7.2 Certificate of Good Faith Compliance..............................................................21
7.3 No Waiver.........................................................................................................21
7.4 Reimbursement of Annual Review Costs.........................................................21
ARTICLE 8 MORTGAGEE PROTECTION..............................................................................22
8.1 Mortgagee Protection........................................................................................22
8.2 Mortgagee Not Obligated.................................................................................22
8.3 Notice of Default to Mortgagee; Right to Cure................................................22
8.4 No Supersedure.................................................................................................23
8.5 Technical Amendments to this Article 8..........................................................23
ARTICLE 9 AMENDMENT OF AGREEMENT AND PROJECT APPROVALS...................23
9.1 Amendment of this Agreement.........................................................................23
9.2 Amendments to Development Agreement Statute............................................24
9.3 Amendments to Project Approvals...................................................................25
9.4 Reliance on GPEIR and MND..........................................................................26
9.5 Subsequent CEQA Review...............................................................................26
ARTICLE 10 COOPERATION AND IMPLEMENTATION....................................................26
10.1 Subsequent Project Approvals..........................................................................26
10.2 Scope of Review of Subsequent Project Approvals .........................................26
10.3 Processing Applications for Subsequent Project Approvals.............................27
10.4 Other Agency Subsequent Project Approvals; Authority of City.....................27
10.5 Implementation of Necessary Mitigation Measures and Conditions................28
10.6 Cooperation in the Event of Legal Challenge...................................................28
10.7 Revision to Project............................................................................................30
10.8 State, Federal or Case Law...............................................................................30
10.9 Indemnity and Hold Harmless..........................................................................30
10.10 Sales Tax Point of Sale Designation.................................................................31
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ARTICLE 11 ASSIGNMENT.....................................................................................................31
11.1 Transfers ...........................................................................................................31
ARTICLE 12 DEFAULT; REMEDIES; TERMINATION ........................................................32
12.1 Breach and Default ...........................................................................................32
12.2 Withholding of Permits.....................................................................................32
12.3 Termination.......................................................................................................33
12.4 Specific Performance for Violation of a Condition..........................................33
12.5 Resolution of Disputes......................................................................................33
12.6 Rights and Remedies Are Cumulative..............................................................34
12.7 Limitation on Damages.....................................................................................34
12.8 Surviving Provisions.........................................................................................34
ARTICLE 13 MISCELLANEOUS PROVISIONS.....................................................................35
13.1 Incorporation of Recitals, Exhibits and Introductory Paragraph......................35
13.2 Severability.......................................................................................................35
13.3 Construction......................................................................................................35
13.4 Covenants Running with the Land ...................................................................35
13.5 Notices..............................................................................................................35
13.6 Counterparts and Exhibits; Entire Agreement..................................................36
13.7 Recordation of Agreement................................................................................37
13.8 No Joint Venture or Partnership.......................................................................37
13.9 Waivers.............................................................................................................37
13.10 California Law; Venue......................................................................................37
13.11 City Approvals and Actions..............................................................................37
13.12 Estoppel Certificates.........................................................................................37
13.13 No Third Party Beneficiaries............................................................................38
13.14 Signatures..........................................................................................................38
13.15 Time..................................................................................................................38
13.16 Days..................................................................................................................38
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LIST OF EXHIBITS
Exhibit A-1 Property Legal Description
Exhibit A-2 City Property Legal Description
Exhibit B Impact Fees
Exhibit C Schedule of Performance
Exhibit D Form of City Easement and Public Use Agreement
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (“Agreement”) dated for reference purposes as
of the Adoption Date, is entered into by and between the CITY OF BURLINGAME, a California
municipal corporation organized and existing under the laws of the State of California (“City”)
and 220 PARK – BURLINGAME, LLC, a Delaware limited liability company (“Developer”).
City and Developer are sometimes referred to individually herein as a “Party” and collectively
as “Parties.”
R E C I T A L S
The following recitals are a substantive part of this Agreement; capitalized terms used
herein and not otherwise defined are defined in Section 1.1 of this Agreement.
A.In order to strengthen the public planning process, encourage private participation
in comprehensive planning and reduce the economic costs and risk of development, the
Legislature of the State of California enacted Section 65864 et seq. of the Government Code
(“Development Agreement Statute”) which authorizes a city and a developer having a legal or
equitable interest in real property to enter into a binding, long-term development agreement,
establishing certain development rights in the property. This Agreement has been drafted and
processed pursuant to the Development Agreement Statute.
B.Developer is under contract to purchase fee title to the approximately 1.28 acres
of real property located at 220 Park Road, Burlingame, California (APN 029-204-250), more
fully described on Exhibit A-1, attached and incorporated herein by reference (“220 Park
Property” or “Property”). The Property is located in the heart of downtown Burlingame and is
currently occupied by a 13,300 square foot Post Office building and supporting features
constructed in 1941 and closed in 2015 (“Historic Post Office”). The Historic Post Office is
subject to an existing 2013 preservation covenant (“Historic Covenant”) that requires
preservation or reuse of portions of the building to meet the United States Secretary of the
Interior’s Standards for the Treatment of Historic Properties (“SOI Historic Standards”) and
has been listed on the City’s Local Register of Historic Places (“Historic Register Listing”)
pursuant to the City’s Historic Preservation Ordinance (“HPO”). Collectively, the Historic
Covenant, the SOI Historic Standards and the HPO are the “Historic Requirements.” The
Property also includes a 1,275 square foot free-standing garage, a surface parking lot and
driveway with approximately 51 surface parking spaces, and portions of an underground storm
water culvert owned and operated by the City. The Property has remained unused since 2015 and
is currently surrounded by a chain link fence.
C.City owns an adjacent approximately 0.65 acres of real property referred to as
“Lot E” and more fully described on Exhibit A-2, attached and incorporated herein by reference
(“City Property”). The City Property is currently operated as a surface public parking lot but is
being considered by the City for potential redevelopment into a town square/community open
space, as suggested by the Burlingame Downtown Specific Plan (“City Town Square Project”).
D.Developer wishes to redevelop the 220 Park Property, consistent with the Historic
Requirements, as a six-story building with approximately 12,500 gross square feet (“gsf”) of
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ground-floor retail space inclusive of preserved portions of the existing Post Office building;
approximately 140,000 gsf of upper-story office space; an additional approximately 27,500 gsf
of lobby, circulation, and back-of-house space within the building; an approximately 280-space
two-level underground garage, part of which will underlie the City Property (“Parking
Garage”); and related infrastructure and landscaping, including the Terrace Improvements on
the City Property described in Recital D, below (collectively, the “Project”).
E.To allow the Project to provide the required parking per the Existing Approvals
(defined below) while meeting the Historic Requirements, the Developer will design, construct,
maintain and operate a portion of the Parking Garage (approximately 32 spaces and drive aisle)
on an approximately 6,900 gsf underground portion of the City Property (“Parking Garage
Easement Area”), subject to certain night and weekend public parking rights in the Parking
Garage as further described herein and in the form of City Easement and Public Use Agreement
as defined below.
F.In addition, to provide a mutually attractive transition between the Project and the
City Property and potential future City Town Square Project and to activate the edge of the
potential future City Town Square Project, the Developer has agreed to design, construct,
maintain and operate a patio/terrace and related surface improvements that link the Historic Post
Office with the City Town Square Project (“Terrace Improvements”), on an approximately
6,900 gsf portion of the City Property bordering the 220 Park Property (“City Property Terrace
Improvements Easement Area”), subject to the City retaining the right to authorize and permit
public access as further described herein. This Agreement sets forth the terms and timing of
these easement rights and terms for public access, including a form of City Easement and Public
Use Agreement as defined below. The City Property Terrace Improvements Easement Area
consists of the entire surface area above the Parking Garage Easement Area, and are collectively,
the “City Easement Area.” City Property outside the City Property Terrace Improvements
Easement Area shall be referred to as the “Remaining City Property.”
G.To maximize the Parties’ mutual interests in the protection and preservation of the
historic elements of the Historic Post Office and to minimize construction traffic and scheduling
disruptions, this Agreement provides for temporary use of the City Property and a portion of the
public parking along Park Road for temporary storage of the historic elements of the Historic
Post Office and construction staging, subject to certain payment obligations that increase over
time to incentive redevelopment. Upon completion, Developer will, at the City’s option and
discretion, either: (i) restore surface conditions on the Remaining City Property with anticipated
surface parking use to be reinstated, or (ii) if the City is proceeding with the City Town Square
Project, deliver the Remaining City Property in an unrestored condition and contribute the cost
that otherwise would go to restoration of the surface parking to help fund the City Town Square
Project, all as further described herein.
H.The Parties acknowledge that the City Town Square Project is entirely separate
from the Project and is subject to the sole discretion of the City, including as to whether and
when it is developed and what improvements are included. It is, however, the Parties’ intention
and desire to expedite planning, permitting, construction, and occupancy of the Project so that:
(i) what has been a vacant property in the heart of downtown can be activated and will once
again be a center of activity for the community, and (ii) the opportunities for synergy and cost
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efficiencies with the potential City Town Square Project can be maximized. This Agreement
includes a Schedule of Performance set forth on Exhibit C, attached and incorporated herein by
reference (“Schedule of Performance”) to incentive redevelopment and coordinate the Project
with the City Town Square Project. This Agreement is in no way intended to require the City to
proceed with the City Town Square Project, only to maximize opportunities for coordination and
potential cost efficiencies. This Agreement provides for the terms and timing of payment by
Developer of $2,000,000 as part of the consideration for City granting easements for the Parking
Garage and Terrace Improvements, which City may use towards construction costs if City
decides to proceed with the City Town Square Project, subject to certain adjustments.
I.To improve the aesthetics of the Property pending redevelopment given the
prominent downtown location, this Agreement also includes certain commitments by the
Developer to, if approved by the land owner prior to Developer’s acquisition of the Property: (i)
wrap the perimeter fencing with graphic “fence wrap” to promote and market the future Project,
celebrate the Historic Post Office, and/or promote downtown Burlingame, (ii) implement
necessary protective measures to mitigate and/or reduce further physical degradation of the
historically significant portions of the Historic Post Office, and (iii) clean trash and graffiti on the
Property.
J.To achieve the Parties’ mutual goals of redevelopment consistent with the
Historic Requirements as expeditiously as possible, the Developer desires to receive assurance
that it may proceed with the Project, including the terms of use of the City Property, in
accordance with the Applicable City Regulations. Therefore, this Agreement between City and
Developer sets forth, among other things, the applicable fees, policies and zoning requirements
that will apply to Developer’s development of the Project and provides Developer with a vested
right to develop the Project.
K.Approval and development of the Project relies on the following analysis under
the California Environmental Quality Act (“CEQA”) (set forth in Public Resources Code,
Section 21000 et seq.) and the State CEQA Guidelines (“CEQA Guidelines”) (set forth in
California Code of Regulations section 15000 et seq.): (1) a Final Environmental Impact Report
for the 2040 General Plan Update (SCH #2010122012) (“GPEIR”) certified by the City Council
on January 11, 2019; (2) a Mitigated Negative Declaration for the Burlingame Downtown
Specific Plan (SCH #2010052073) (“MND”) certified by the City Council on May 27, 2020; and
(3) an Environmental Compliance Checklist approved by the Planning Commission pursuant to
CEQA Guidelines Section 15183 on November 23, 2020 (“Environmental Compliance
Checklist”), including a Mitigation Monitoring and Reporting Program (“MMRP”), concluding
that no additional environmental review is necessary.
L.Prior to approval of this Agreement, City has taken numerous actions in
connection with the development of the Project on the Property. Following approval of the
Environmental Compliance Checklist and MMRP, on November 23, 2020, (1) the Burlingame
Historic Preservation Commission approved the Historic Register Listing by its Resolution No.
2020-58, and (2) the City Planning Commission approved the following by its Resolution No.
2020-61:
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(a) Commercial Design Review;
(b) Historic Variance (parking); and
(c) Historic Variance (height).
The approvals and development policies described in this Recital K, together with the
Environmental Compliance Checklist and MMRP and this Agreement, are collectively referred
to herein as the “Existing Approvals.”
M.The Development Agreement Statute provides that the purpose of development
agreements is to strengthen the public planning process, encourage comprehensive planning,
obtain private participation in meeting community needs, and reduce uncertainty in the approval
of development. The City has determined that by entering into this Agreement, City will further
the purposes set forth in the Development Agreement Statute and City will benefit from the
redevelopment of the Property consistent with the Historic Requirements, public parking,
financial contributions and other benefits provided in this Agreement.
N.The terms and conditions of this Agreement have undergone review by City staff,
the Planning Commission and the City Council at publicly noticed meetings and have been found
to be fair, just and reasonable and in conformance with the goals, policies, standards and land use
designations specified in the City’s General Plan, Burlingame Downtown Specific Plan and
Historic Preservation Ordinance and, further, the City Council finds that the economic interests
of City’s citizens and the public health, safety and welfare will be best served by entering into
this Agreement.
O.On January 11, 2021, after a duly noticed public hearing, the Planning
Commission, the initial hearing body for purposes of development agreement review, adopted its
Resolution No. 2-21-05 recommending approval of this Agreement to the City Council. After
duly noticed public hearings, on February 1, 2021, the City Council introduced Ordinance
No. _____ approving this Agreement (“Enacting Ordinance”), and adopted it on February 15,
2021 (“Adoption Date”). The Enacting Ordinance will become effective on March 17, 2021,
thirty (30) days after the Adoption Date (“Effective Date”).
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A G R E E M E N T
NOW, THEREFORE, in consideration of the promises, covenants and provisions set
forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
“Administrative Project Amendment” is defined in Section 9.3.2.
“Adoption Date” is defined in Recital N.
“Affiliate of Developer” means an entity or person that directly or indirectly controls, is
controlled by, or is under common control with Developer. For the purposes of this definition,
“control” means the possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of an entity or person, whether through the ownership of voting
securities, by contract, or otherwise, and the terms “controlling” and “controlled” have the
meanings correlative to the foregoing.
“Agreement” means this Development Agreement.
“Agreement Amendment” is defined in Section 9.13.
“Applicable City Regulations”means (a) all City policies, standards and specifications
set forth in this Agreement and the Existing Approvals, including the specific conditions of
approval adopted with respect to the Existing Approvals; (b) with respect to matters not
addressed by this Agreement or the Existing Approvals but governing permitted uses of the
Property, building locations, sizes, densities, intensities, design and heights, site design, setbacks,
lot coverage and open space, and parking, those City ordinances, rules, regulations, official
policies, standards and specifications in force and effect on the Effective Date; and (c) with
respect to all other matters, including building, plumbing, mechanical and electrical codes, those
New City Laws which may be applied to the Project and Developer pursuant to the terms of this
Agreement, including but not limited to Section 4.2.
“Applicable Laws”means (a) all State and Federal laws and regulations applicable to the
Property and the Project as enacted, adopted and amended from time to time; and (b) the
Applicable City Regulations.
“Certificate of Occupancy” or “COO” means an official document issued by the City
Building Official that certifies that the Superstructure of the building (not including any tenant
improvements) proposed as part of the Project has been inspected and determined to comply with
the Project Approvals, including the applicable California Building Standards Code and the
City’s local ordinances which govern construction and occupancy. A “temporary” COO
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confirms the building is safe for the proposed temporary use or occupancy but is still subject to a
punch list of items required to be complete to obtain a final COO. A “final” COO means the
building has been inspected and determined safe for the proposed use and occupancy and all
final punch list items are complete.
“CEQA” is defined in Recital I.
“CEQA Guidelines” is defined in Recital I.
“Changes in the Law” is defined in Section 4.8.
“City” means the City of Burlingame, a California municipal corporation.
“City Easement and Public Use Agreement” is defined in Section 6.4 and shall be
substantially in the form set forth in Exhibit D.
“City Easement Area” is defined in Recital E and depicted in Exhibit D, and includes
the subsurface Parking Garage Easement Area and surface City Property Terrace Improvements
Easement Area.
“City Party” and “City Parties” are defined in Section 10.9.
“City Property” is defined in Recital B and described on Exhibit A-2.
“City Property Terrace Improvements Easement Area” is defined in Recital E.
“City Town Square Project” is defined in Recital B.
“City Town Square Improvements” are defined in Section 6.5.3.
“Claims” means liabilities, obligations, orders, claims, damages, fines, penalties and
expenses, including reasonable attorneys’ fees and costs.
“Close” or “Closing” means the date the Developer obtains fee title interest to the
Property.
“Commences Construction of the Project” (or “Commencement of Construction of
the Project”) is defined on the Schedule of Performance.
“Connection Fees” means those fees charged by City or by a utility provider to utility
users as a cost for connecting to water, sanitary sewer and other applicable utilities.
“Community Development Director” means the Director of Community Development
of the City of Burlingame, or his/her designee.
“Default” is defined in Section 12.1.
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“Developer” means 220 Park – Burlingame, LLC, a Delaware limited liability company
(a joint venture of Sares Regis Group of Northern California and Dostart Development
Company, Inc.), and its permitted assignees and successors-in-interest under this Agreement.
“Development Agreement Statute” is defined in Recital A.
“Effective Date” is defined in Recital N.
“Enacting Ordinance” is defined in Recital N.
“Environmental Compliance Checklist” is defined in Recital I.
“Exactions” means exactions that may be imposed by the City as a condition of
developing the Project, including requirements for acquisition, dedication or reservation of land;
and obligations to construct on-site or off-site public and private infrastructure improvements
such as roadways, utilities or other improvements necessary to support the Project, whether such
exactions constitute subdivision improvements, mitigation measures in connection with
environmental review of the Project, or impositions made under Applicable City Regulations.
For purposes of this Agreement, Exactions do not include Impact Fees.
“Existing Approvals” is defined in Recital J.
“Expiration Date” is defined in Section 3.2.1.
“Force Majeure Delay” is defined in Section 3.2.2.
“GDP” is defined in Section 3.2.2.
“GPEIR” is defined in Recital I.
“Historic Covenant” is defined in Recital A.
“Historic Post Office” is defined in Recital A.
“Historic Register Listing” is defined in Recital A.
“HPO” is defined in Recital A.
“Historic Requirements” is defined in Recital A.
“Impact Fees” means the monetary amount charged by City in connection with a
development project for the purpose of defraying all or a portion of the cost of mitigating the
impacts of the development project or development of the public facilities related to the
development project, including, any “fee” as that term is defined by Government Code Section
66000(b). For purposes of this Agreement, a fee that meets both the definitions of an Impact Fee
and an Exaction, will be considered to be an Impact Fee. Impact Fees do not include Other
Agency Fees.
“Litigation Challenge” is defined in Section 10.6.
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“MMRP” is defined in Recital I.
“MND” is defined in Recital I.
“Mortgage” is defined in Section 8.1.
“Mortgagee” is defined in Section 8.1.
“New City Laws” means and includes any ordinances, resolutions, orders, rules, official
policies, standards, specifications, guidelines or other regulations, which are promulgated,
adopted, enacted or amended by the City (including but not limited to any City agency, body,
department, officer or employee) or its electorate (through the power of initiative or otherwise)
after the Effective Date.
“Operating Memorandum” is defined in Section 9.1.2.
“Other Agency Fees” is defined in Section 5.3.
“Other Agency Subsequent Project Approvals” means Subsequent Project Approvals
to be obtained from entities other than City.
“Outside Closing Date” is defined in the Schedule of Performance.
“Parking Garage” is defined in Recital C.
“Parking Garage Easement Area” is defined in Recital D.
“Party/Parties” is defined in the introductory paragraph preceding the Recitals of this
Agreement.
“Planning Commission” means the Planning Commission of the City of Burlingame.
“Prevailing Wage Laws” is defined in Section 10.9.
“Processing Fees” means all fees for processing development project applications,
including any required supplemental or other further environmental review, plan checking and
inspection and monitoring for land use approvals, design review, grading and building permits,
General Plan maintenance fees, encroachment permits, and other permits and entitlements
required to implement the Project, which are in effect at the time those permits, approvals or
entitlements are applied for and in effect at the time such work occurs, and which are intended to
cover the actual costs of processing the foregoing, and which may include the cost of retaining
outside contractors for plan checking or other purposes and City’s administrative expenses
related to such retention as set forth in Section 10.3.
“Project” is defined in Recital C.
“Project Approvals” means the Existing Approvals and the Subsequent Project
Approvals.
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“Property” or “220 Park Property” is defined in Recital A and described on Exhibit A-1.
“PSA” is defined in Section 2.1.
“Remaining City Property” is defined in Recital E.
“Schedule of Performance” is defined in Recital F and set forth in Exhibit C.
“Staging Use Fee” is defined in Section 6.3.2.
“Subsequent Project Approvals” is defined in Section 10.1.
“Superstructure”means the core and shell building structure with required parking
provided, where tenant improvements remain incomplete.
“Term” is defined in Section 3.2.1.
“Terrace Improvements” is defined in Recital E.
“Town Square Contribution” is defined in Section 6.5.1.
ARTICLE 2
GENERAL PROVISION
2.1 Ownership of Property; Termination by Outside Closing Date; Recordation.
(a)The Parties hereby acknowledge that, as of the Effective Date,
Developer has an equitable interest in the Property by virtue of its contractual right to purchase
the Property pursuant to the terms of a valid purchase and sale agreement (“PSA”) with the
current owner of the Property. The Parties acknowledge and agree this Agreement, and the
Existing Project Approvals, are personal to the Developer and do not bind or benefit the current
owner of the Property, and City does not intend by this Agreement to confer any benefits on or
bind the current owner of the Property or any successor, assignee or Mortgagee of such owner.
In the event the Developer does not Close on the Property by the Outside Closing Date as
defined in the Schedule of Performance, this Agreement and all Project Approvals automatically
shall terminate and have no further force or effect. If Developer does not Close on the Property
by the Outside Closing Date, or this Agreement otherwise is terminated by its terms, the City
shall, upon the request of the Developer, deliver a recordable form of termination notice. The
obligations of this Agreement shall bind the City as of the Effective Date, and shall bind the
Developer only as expressly provided herein prior to Closing, and shall fully bind both Parties
upon Closing.
(b)This Agreement shall be executed and recorded pursuant to
Section 13.7.
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ARTICLE 3
EFFECTIVE DATE AND TERM
3.1 Effective Date. This Agreement shall become effective upon the Effective Date.
3.2 Term.
3.2.1 Term of Agreement. The “Term” of this Agreement shall commence on
the Effective Date and shall expire upon the earliest to occur of the following: (1) the issuance
of a final Certificate of Occupancy for the Project; (2) termination of this Agreement in
accordance with its terms, including without limitation Section 2.1; or (3) the fifth (5th)
anniversary of the Effective Date. Upon such termination, this Agreement shall be deemed
terminated and of no further force and effect, subject, however, to the extension provisions set
forth in Section 3.2.2 and Section 3.2.3, and subject to Section 12.8 below and those provisions
that expressly survive termination. Termination of the Term as it may be extended is referred to
herein as the “Expiration Date.” City shall have the right to extend the Term if it deems
necessary for Developer to satisfy all its obligations under this Agreement.
3.2.2 Enforced Delay; Extension of Times of Performance. Subject to the
limitations set forth below, performance by either Party hereunder shall not be deemed to be in
Default, and all performance and other dates specified in this Agreement shall be extended
(except as otherwise excluded or qualified herein), where delays are due to: war; insurrection;
strikes and labor disputes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts
of the public enemy; pandemics or epidemics; quarantine restrictions; freight embargoes;
governmental restrictions or priority; litigation and arbitration, including court delays; legal
challenges to this Agreement, the Project Approvals, or any other approval required for the
Project or any initiatives or referenda regarding the same; environmental conditions, pre-existing
or discovered; compliance with Historic Requirements delaying the construction or development
of the Property or any portion thereof arising from an unforeseen condition of the Property not
discovered as of the Effective Date or arising from an unforeseen complication occurring during
removal and reinstallation of historic elements of the Property; unusually severe weather but
only to the extent that such weather or its effects (including, without limitation, dry out time)
result in delays that cumulatively exceed twenty (20) days for every winter season occurring
after Commencement of Construction of the Project; acts or omissions of the other party; or acts
or failures to act of any public or governmental agency or entity (except that acts or failures to
act of City shall not excuse performance by City); moratorium (each a “Force Majeure Delay”).
An extension of time for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause, if written notice by the party
claiming such extension is sent to the other party within sixty (60) days of the commencement of
the cause. If written notice is sent after such sixty (60) day period, then the extension shall
commence to run no sooner than sixty (60) days prior to the giving of such notice. Times of
performance under this Agreement may also be extended in writing by the mutual agreement of
City and Developer. Developer’s inability or failure to obtain financing or otherwise timely
satisfy the Conditions Precedent to Closing on or before the Outside Date shall not be deemed to
be a cause outside the reasonable control of the Developer and shall not be the basis for an
excused delay. The Term of this Agreement shall not be subject to extension of more than two
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(2) years in the aggregate for any Force Majeure Delay, and the Outside Closing Date shall not
be subject to extension for any Force Majeure Delay.
3.2.3 Extension of Term for Commencement of Construction of the Project. If
the Developer is in good faith compliance with this Agreement and Commences Construction of
the Project, as defined in the Schedule of Performance, the initial five (5) year Term set forth in
Section 3.2.1 shall be automatically extended until the issuance of a final Certificate of
Occupancy for the Project; provided, notwithstanding such extension, subject to Force Majeure
and all applicable notice and opportunity to cure, the Term shall expire and this Agreement shall
terminate (a) if Developer fails to comply with the Post-Commencement milestones in the
Schedule of Performance or (b) after Commencement of Construction of the Project, work stops
for more than twelve (12) months. Upon such termination, this Agreement shall be deemed
terminated and of no further force and effect except for those provisions that expressly survive
termination.
3.3 City Representations and Warranties. City represents and warrants to Developer
that, as of the Effective Date:
3.3.1 City is a municipal corporation, and has all necessary powers under the
laws of the State of California to enter into and perform the undertakings and obligations of City
under this Agreement.
3.3.2 The execution and delivery of this Agreement and the performance of the
obligations of City hereunder have been duly authorized by all necessary City Council action and
all necessary approvals have been obtained.
3.3.3 This Agreement is a valid obligation of City and is enforceable in
accordance with its terms.
During the Term of this Agreement, City shall, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 3.3 not to be true,
immediately give written notice of such fact or condition to Developer.
3.4 Developer Representations and Warranties. Developer represents and warrants to
City that, as of the Effective Date:
3.4.1 Developer is duly organized and validly existing under the laws of the
State of Delaware, and is in good standing and has all necessary powers under the laws of the
State of California to own property interests and in all other respects enter into and perform the
undertakings and obligations of Developer under this Agreement.
3.4.2 The execution and delivery of this Agreement and the performance of the
obligations of Developer hereunder have been duly authorized by all necessary company action
and all necessary member approvals have been obtained.
3.4.3 This Agreement is a valid obligation of Developer and is enforceable in
accordance with its terms.
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3.4.4 Developer has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Developer’s creditors, (iii) suffered the appointment of a receiver to take possession
of all, or substantially all, of Developer’s assets, (iv) suffered the attachment or other judicial
seizure of all, or substantially all, of Developer’s assets, (v) admitted in writing its inability to
pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to
its creditors generally.
During the Term of this Agreement, Developer shall, upon learning of any fact or condition
which would cause any of the warranties and representations in this Section 3.4 not to be true,
immediately give written notice of such fact or condition to City.
ARTICLE 4
DEVELOPMENT OF PROPERTY
4.1 Vested Rights. The City hereby grants to Developer the present vested right to
develop and construct on the Property all the improvements authorized by, and in accordance
with, the Project Approvals. To the extent permitted by Applicable Laws, and except as
otherwise provided herein, no future modification of the City’s General Plan, Municipal Code,
ordinances, policies or regulations shall apply to the Property that purports to: (i) limit the
permitted uses of the Property, the density and intensity of use, or the maximum height and size
of proposed buildings; (ii) impose requirements for reservation or dedication of land for public
purposes or requirements for infrastructure, public improvements, or public utilities, other than
as provided in the Project Approvals or pursuant to this Agreement; (iii) impose conditions upon
development of the Property other than as permitted by the Applicable Laws, Changes in the
Law, the Project Approvals and this Agreement; (iv) limit the timing, phasing or rate of
development of the Property; provided, however, that nothing in this Agreement shall prevent or
preclude City from adopting any land use ordinances, policies, regulations or amendments
permitted herein or relieve Developer of its obligation to develop the Property within the times
provided in this Agreement, including the Schedule of Performance in Exhibit C; (v) limit the
location of building sites, grading or other improvements on the Property in a manner that is
inconsistent with or substantially more restrictive than the limitations included in this Agreement
or the Project Approvals; (vi) frustrate in a more than insignificant way the intent or purpose of
the Project Approvals in relation to the Project; (vii) limit or control the ability to obtain public
utilities, services, or facilities; (viii) require the issuance of additional permits or approvals by the
City other than those required by Applicable Laws; or (ix) limit the processing or procuring of
applications and approvals of Subsequent Project Approvals.
4.2 Reservations of Authority. The Parties acknowledge and agree that City is
restricted in its authority to limit its police power by contract. This Agreement shall be
construed to reserve to City all such power and authority which cannot be restricted by contract.
Notwithstanding any other provision of this Agreement to the contrary, the following regulations
and provisions shall apply to the development of the Project:
4.2.1 Except as otherwise provided in Section 5.1, Processing Fees, Connection
Fees and other fees of every kind and nature imposed by the City, and any increase or
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modification to those fees that are in force and effect at the time land use or development
permits, approvals or entitlements are applied for or issued on any or all portions of the Project.
4.2.2 Regulations relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations, appeals and any other matter of procedure
then applicable in City at the time of permit application.
4.2.3 Regulations governing construction standards and specifications,
including City’s building code, plumbing code, mechanical code, electrical code, fire code and
grading code, and all other uniform construction codes then applicable in City at the time of
permit application.
4.2.4 New City Laws applicable to the Property or Project, which do not
conflict with this Agreement.
4.2.5 New City Laws which may be in conflict with this Agreement but which
are necessary to protect persons or property from dangerous or hazardous conditions which
create a threat to the public health or safety or create a physical risk, based on findings by the
City Council identifying the dangerous or hazardous conditions requiring such changes in the
law, why there are no feasible alternatives to the imposition of such changes, and how such
changes would alleviate the dangerous or hazardous condition.
4.2.6 Exactions required by this Agreement, the Existing Approvals or any
Subsequent Project Approvals.
4.3 Regulation by Other Public Agencies. Developer acknowledges and agrees that
other public agencies not within the control of City possess authority to regulate aspects of the
development of the Property separately from or jointly with City, and this Agreement does not
limit the authority of such other public agencies. Developer shall, at the time required by
Developer in accordance with Developer’s construction schedule, apply for all such other
permits and approvals as may be required by other governmental or quasi-governmental entities
in connection with the development of, or the provision of services to, the Project. Developer
shall also pay all required fees, including Other Agency Fees, when due to such public agencies.
Developer acknowledges that City does not control the amount of any such fees. City shall
reasonably cooperate with Developer in Developer’s effort to obtain such permits and approvals;
provided, however, City shall have no obligation to incur any costs, without compensation or
reimbursement by Developer, or to amend any policy, regulation or ordinance of City in
connection therewith.
4.4 Life of Project Approvals; Termination.
4.4.1 Generally. Except as otherwise expressly provided herein, the term of any
and all Project Approvals shall automatically be extended for the longer of the Term of this
Agreement or the term otherwise applicable to such Project Approvals, subject to the provisions
of this Section 4.4. The termination of this Agreement at the end of the Term set forth in Section
3.2.1 shall have no effect on the Project Approvals, subject to the provisions in Section 4.4.2
below; provided, however, (a) as provided in Section 2.1, in the event the Developer does not
Close on the Property by the Outside Closing Date as defined in the Schedule of Performance, or
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(b) if this Agreement is terminated by either Party before expiration of the Term other than by
Developer due to a Default by City, this Agreement and all Project Approvals shall terminate and
have no further force or effect.
4.4.2 Continuing Vested Rights. In order to address and clarify Developer’s
ability to build and operate the Project after the Expiration Date if not yet completed, the Parties
agree that the following terms shall govern Developer’s vested rights.
(a)Provided Developer has satisfied all its obligations under this
Agreement as of the Expiration Date and termination of this Agreement, and Developer has
obtained a final Certificate of Occupancy for the Project, the Project Approvals shall continue in
effect as required for operation and use of the Project, subject only to California law that may
apply to continued reliance on such approvals.
(b)If development of the Project has not been completed as of the
Expiration Date and termination of this Agreement, Developer may continue work after such
termination and may complete the Project as approved by the Project Approvals so long as the
following conditions are satisfied:
(i)As of the Expiration Date Developer is not in Default, or if
subject to a breach that has not yet been cured then Developer may not exercise its rights under
this Section 4.4.2(b) unless and until it timely cures the breach in the reasonable judgment of
City;
(ii)As of the Expiration Date, physical site work has
commenced under the Superstructure Permit and qualifies for vesting under California common
law established by Avco Community Builders v. South Coast Regional Commission, 17 Cal.3rd
785 (1976), provided such work does not stop for twelve (12) months or longer; and
(iii)As of the Expiration Date, Developer has satisfied all
applicable mitigation measures and conditions of approval adopted by City as part of the Project
Approvals that have come due as and when required.
(c)If Developer fails to satisfy all conditions under Section 4.4.2(b)
by the Expiration Date, the following shall apply with regard to future development or operation
of the Project:
(i)Developer’s vested rights secured by this Agreement with
regard to the Project shall terminate and all Project Approvals shall be deemed terminated and
may not be relied on by Developer or the Project, notwithstanding any ability under Applicable
City Regulations that may provide for extensions of the Project Approvals; and
(ii)Developer shall have no vested right to construct or
continue construction of the Project without first obtaining new City discretionary approvals then
required.
(d)The terms and conditions of this Section 4.4.2 and their
enforcement shall survive expiration or termination of this Agreement.
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4.5 Initiatives. If any New City Law is enacted or imposed by a citizen-sponsored
initiative or referendum, which New City Law would conflict with the Project Approvals or this
Agreement or reduce the development rights or assurances provided by this Agreement, such
New City Law shall not apply to the Property or Project; provided, however, the Parties
acknowledge that City’s approval of this Agreement is a legislative action subject to referendum.
Without limiting the generality of the foregoing, no moratorium or other limitation (whether
relating to the rate, timing, phasing or sequencing of development) affecting any entitlements or
permits to use that are approved or to be approved, issued or granted by City shall apply to the
Property or Project. Developer agrees and understands that City does not have authority or
jurisdiction over any other public agency’s ability to grant governmental approvals or permits or
to impose a moratorium or other limitations that may affect the Project. City shall reasonably
cooperate with Developer and, at Developer’s expense, undertake such actions as may be
necessary to ensure this Agreement remains in full force and effect. City, except to submit to
vote of the electorate initiatives and referendums required by law to be placed on a ballot and
fulfill any legal responsibility to defend a ballot measure passed by its voters, shall not support,
adopt or enact any New City Law, or take any other action which would violate the express
provisions or spirit and intent of this Agreement.
4.6 No Affirmative Obligation to Develop; Timing of Development. The City
acknowledges and agrees that the Developer has no affirmative obligation to Close or develop
the Project. However, if the Developer, in its sole discretion, Closes on the Property and opts to
develop the Project, such development shall comply with this Agreement, including the Schedule
of Performance. However, and not in any limitation of any of the foregoing, since the California
Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that
the failure of the parties therein to consider, and expressly provide for, the timing of
development resulted in a later-adopted initiative restricting the timing of development to prevail
over such parties’ agreement, it is the desire of the Parties hereto to avoid that result. Therefore,
notwithstanding the adoption of an initiative after the Effective Date by City’s electorate to the
contrary, the Parties acknowledge that, except as otherwise provided for in this Agreement or the
Existing Approvals, Developer shall have the vested right to develop the Project in such order
and at such rate and at such times as Developer deems appropriate in the exercise of its business
judgment.
4.7 No Conflicting Enactments. Except as otherwise provided in this Agreement,
City shall not impose on the Project (whether by action of the City Council or by initiative,
referendum or other means) any New City Law that is in conflict with this Agreement or the
Existing Approvals. Without limiting the generality of the foregoing, the City shall not (i) apply
to the Property any change in land use designation or permitted use of the Property; (ii) limit or
control the ability to obtain public utilities, services, or facilities; (iii) limit or control the uses;
building setbacks, square footage, dimensions, floor plates, height; or location of buildings and
structures; or spacing between buildings in a manner that is inconsistent with or more restrictive
than the limitations included in the Existing Approvals or this Agreement; or (iv) limit or control
the rate, timing, or sequencing of the approval, development or construction of all or any part of
the Project or Existing Approvals, except as otherwise provided in this Agreement or the
Existing Approvals.
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4.8 Changes in the Law. As provided in Section 65869.5 of the Development
Agreement Statute, this Agreement shall not preclude the applicability to the 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 by changes in laws, regulations, plans or
policies of special districts or other governmental entities, other than the City, created or
operating pursuant to the laws of the State of California (“Changes in the Law”). In the event
Changes in the Law prevent or preclude compliance with one or more provisions of this
Agreement, the Parties shall meet and confer in good faith in order to determine whether such
provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as
may be necessary to comply with Changes in the Law, and City and Developer shall agree to
such action as may be reasonably required. Nothing in this Agreement shall preclude Developer
from contesting by any available means (including administrative or judicial proceedings) the
applicability to the Project of any such Changes in the Law.
4.9 No Reservation of Sanitary Sewer or Potable Water Capacity. City has found the
Project to be consistent with the General Plan which anticipates that there will be sufficient
potable water and sanitary sewer capacity to serve future development contemplated by the
General Plan, including the Project. However, nothing in this Agreement is intended to exempt
the Project or the Property from any water use rationing requirements that may be imposed on a
City-wide basis from time to time in the future or be construed as a reservation of any existing
sanitary sewer or potable water capacity. Nonetheless, to the maximum extent permitted by law
and consistent with its authority, City upon Developer’s request shall cooperate with Developer
(at no expense to City) in Developer’s effort to reserve such capacity for sewer and water
services as may be necessary to serve the Project.
ARTICLE 5
FEES AND OTHER CHARGES
5.1 City Fees.
5.1.1 Impact Fees. Developer shall, for the first three (3) years of the Term, pay
when due all existing Impact Fees as shown on Exhibit B at the rates in effect as of the Effective
Date, and shall not be required to pay any Impact Fee enacted or established after the Effective
Date or any increase in such existing Impact Fees. Thereafter, and during the remainder of the
Term (as it may be extended), Developer shall pay all original and any new Impact Fees at the
rates in effect at the time due. The Impact Fees itemized on Exhibit B represent the Parties’
good faith effort to identify the Impact Fees applicable to the Project. City and Developer agree
to amend and restate Exhibit B, as necessary, in the event one or more Impact Fees have been
inadvertently omitted or if any cost or credit amounts have been inadvertently miscalculated.
5.1.2 All Other City Fees. Except as otherwise provided in Section 5.1.1 above
as to Impact Fees, Developer agrees to pay when due any existing, new, increased or modified
fees, including Processing Fees and Connection Fees, at the rates then in effect at the time land
use or development permits, approvals or entitlements are applied for or issued on any or all
portions of the Project so long as any new fees or increases in existing fees from the amount
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existing as of the Effective Date applies on a Citywide basis and is consistent with the provisions
of applicable California law, including the provisions of Government Code Section 66000 et seq.
5.1.3 Right to Protest. Developer acknowledges being aware of all City fees in
effect as of the Effective Date that might be imposed on the Property and the Project, and
Developer accepts and shall not protest or challenge imposition of the types and amounts of such
fees in effect as of the Effective Date. Other than as specified in the previous sentence,
Developer retains all rights to protest an imposition, fee, dedication, reservation, or other
exaction, as set forth in California Government Code Section 66020, and nothing in this
Agreement shall diminish or eliminate any of Developer’s rights set forth in such Section 66020.
City may impose and Developer shall comply with those Exactions required by this Agreement
and the Existing Project Approvals.
5.2 Other Agency Fees. Nothing in this Agreement shall preclude City from
collecting fees from Developer that are lawfully imposed on the Project by another agency
having jurisdiction over the Project, which the City is required to collect on behalf of such other
agencies (“Other Agency Fees”).
5.3 Taxes and Assessments. As of the Effective Date, assessments are in effect and
applicable to the Property or the Project as shown on the latest property tax bill for the Property.
City is not aware of any pending efforts to initiate or consider new or increased assessments that
would apply to the Property or the Project.City may impose and Developer agrees to pay any
and all existing, new, modified or increased taxes and assessments, other than Impact Fees,
imposed on the Property or the Project in accordance with the laws in effect as of the date due, at
the rate in effect at the time of payment. Nothing herein shall be construed so as to limit
Developer from exercising whatever rights it may otherwise have in connection with protesting
or otherwise objecting to the imposition of taxes or assessments on the Property; provided,
Developer acknowledges being aware of all taxes and assessments in effect as of the Effective
Date, and Developer accepts and agrees that it shall not protest or challenge their imposition on
the Property and the Project. In the event an assessment district is lawfully formed to provide
funding for services, improvements, maintenance or facilities which are substantially the same as
those services, improvements, maintenance or facilities being funded by the fees or assessments
to be paid by Developer under the Project Approvals or this Agreement, then at City’s election,
taking into consideration City’s expectations as to when it would receive Developer’s payment
of such fees or assessments, either (a) the fees or assessments to be paid by Developer shall be
subject to reduction/credit in an amount equal to Developer’s new or increased assessment under
the assessment district, or (b) the new assessment district shall reduce/credit Developer’s new
assessment in an amount equal to such fees or assessments to be paid by Developer under the
Project Approvals or this Agreement.
ARTICLE 6
DEVELOPER AND CITY COORDINATION AND COVENANTS
6.1 Interim Use and Maintenance. Both the City and Developer have an interest in
the Project commencing as soon as possible. With an understanding that timely redevelopment
is the primary priority, Developer also understands the desire of the City to mitigate the negative
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impacts of the current condition of the Property to the extent that is within Developer’s control
(as the prospective purchaser, but not yet the owner as of the Effective Date). Due to the
abandoned state and intended redevelopment of the Property, both the City and Developer
acknowledge the infeasibility of allowing for temporary uses of the Property due to insurance,
liability, and property condition exposures, as well as the limitations of the Developer’s rights
prior to Closing. Notwithstanding the foregoing, Developer shall use commercially reasonable
efforts to obtain written permission from the current owner of the Property to undertake, and
following receipt of such permission Developer, at its expense and in consultation with City and
after receipt of necessary permits, shall commence and complete the following within the times
specified, except as may be extended by the Community Developer Director in his or her
reasonable discretion. Developer shall keep City informed of the status of receiving owner
approvals and notify City of any obstacles to or delays in receiving such approvals.
(a)Fence Wrap. As soon as practicable and in any case within thirty
(30) days after receiving any City approvals and property owner approval, Developer shall
commence and thereafter diligently complete work to wrap the existing Lorton Avenue, Park
Road, and Lot E-fronting chain link perimeter fencing with graphic “fence wrap” to promote
and market the future Project, celebrate and provide educational information about the Historic
Post Office building, and/or promote downtown Burlingame. Once installed, Developer shall
maintain the fence wrap in good condition and repair until removed. The materials used and
graphics shown on the fence wrap shall be subject to approval by the Community Development
Director in his/her reasonable discretion. Developer shall submit its proposed fence wrap
materials and graphics to the Community Development Director on or before the Effective Date,
in order to obtain approval to begin work in a timely manner.
(b)Historic Covenant Compliance to Protect Historic Resource. As
soon as practicable and in any case within thirty (30) days after the Effective Date, Developer
shall submit to City’s Building Division its plans and permit applications for necessary
protective measures to reasonably prevent, mitigate and/or reduce further physical degradation of
the historically significant portions of the Historic Post Office, and promptly after receiving any
required City approvals and property owner approval, Developer shall commence and thereafter
diligently complete the protective measures.
(c)Site Maintenance. As soon as practicable and in any case within
seven (7) days after the Effective Date and approval by the property owner, the Developer shall
begin a regular program to remove trash and graffiti as needed and maintain the Property in a
reasonable clean condition as approved by the property owner and in good faith consultation
with the Community Development Director.
6.2 Building Permit Applications and Compliance. Developer acknowledges City’s
intent that once work on the Project begins it will continue diligently and without interruption, to
minimize the length of time of any disruptions in the area. Developer shall apply for and obtain
building and other permits for development of the Project and complete work under each permit
as and when specified in the Schedule of Performance in Exhibit C. Developer shall make good
faith efforts to ensure that its initial submissions for such applications are sufficiently complete
to allow necessary City review and processing and are not missing required elements or details,
subject to the common process of refinement through City feedback and revision. Developer
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shall be ready and able financially and otherwise to obtain permits at the time that applications
are submitted. Developer shall pay such fees and take such actions as needed to obtain such
permits promptly after City indicates the permits are ready for issuance, and Developer shall be
ready and able financially and otherwise to begin work under each permit promptly after its
issuance.
6.3 Temporary Construction Staging and Restoration. To maximize the Parties’
mutual interests in the protection and preservation of the historic elements of the Historic Post
Office and minimize construction traffic and scheduling disruptions, the City shall grant the
Developer the right to temporary use of the City Property, as well as a portion of the public
parking along Park Road (“Temporary Use Areas”), as generally depicted on the “220 Park –
Temporary Storage and Staging Plans” prepared by Sares Regis dated January 25, 2021
consisting of eight (8) sheets and on file with City’s Community Development Department,
Planning Division (“Temporary Storage and Staging Plans”). This Section 6.3 shall be
implemented by an encroachment permit, license or easement in a form reasonable acceptable to
the Developer and the City Attorney, subject to standard terms that do not conflict with this
Agreement. The City acknowledges these Temporary Use Areas are essential to the Developer’s
ability to implement the Project as contemplated in this Agreement. Developer’s use of the
Temporary Use Areas shall be subject to City’s requirement to have access from time to time as
City reasonably requires to the area around the cleanout for the culvert running through the City
Property, for maintenance and cleaning of the culvert, for which City shall give Developer two
(2) weeks’ advance notice. Use of Park Road shall be limited to the parking lane, the street shall
remain open to traffic at all times (except as may be requested on a case-by-case basis by the
Developer during construction and approved by the City through the City’s temporary street
closure process), and a temporary walkway shall be provided when needed to allow unimpeded
pedestrian access along the 220 Park Property and City Property side of Park Road.
6.3.1 Historic Storage. As shown on the Temporary Storage and Staging Plans,
portions of the Temporary Use Areas are essential to comply with the Historic Covenant to
temporarily and safely relocate and store elements of the Historic Post Office for just the length
of time necessary for construction. In light of the essential nature of this temporary use, the
Parties’ mutual interest in meeting the Historic Requirements, and the Town Square Contribution
described below, the City shall grant this temporary historic storage use initially at no additional
compensation by the Developer; provided, if such storage continues for more than twenty-four
(24) months, Developer thereafter shall pay the Staging Use Fee (as defined below) for each
parking space affected by the historic storage as described in Section 6.3.2, including payment of
such fee for each parking space on Park Road that is not available for public use.
6.3.2 Construction Staging. As shown on the Temporary Storage and Staging
Plans, the Temporary Use Areas are also very helpful for the temporary staging of certain
construction equipment near the Project, including but not limited to, building materials,
stockpiles, and dewatering equipment. The Parties acknowledge this nearby location will help
shorten the overall construction time, avoid potential delays in construction, facilitate on-site
management and security, and reduce/minimize construction traffic and associated noise,
vibration and dust throughout the rest of downtown. The Developer shall compensate the City
for this construction staging use at the current rate of a Burlingame Business Parking Permit of
$60 per parking stall per month for the first three (3) years after the Effective Date of this
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Agreement, and escalating with annual increases of $5 thereafter during the Term as it may be
extended (e.g., $65 in Year 4, $70 in Year 5, $75 in Year 6, etc.) (“Staging Use Fee”).
Developer shall pay City the Staging Use Fee monthly in advance, with payment due on or
before the tenth (10th) day of each month, with the amount based on the number of parking stalls
occupied or rendered unusable during the previous month. The Parties agree to consult in good
faith if there is disagreement or uncertainty as to the number of stalls for which the Staging Use
Fee should be paid.
6.3.3 Restoration or Additional Contribution. At the times set forth on the
Schedule of Performance, the Developer shall, as directed by the City in its sole discretion by its
written notice to the Developer, either: (i) restore the Remaining City Property to the current
surface parking use (with the exception of any City Town Square Improvements installed
pursuant to Section 6.5.3, below) as City may reasonably direct to repair or restore the area to a
condition substantially similar to its condition prior to the temporary use (including without
limitation repairing pavement, repairing any damage to drainage facilities, repairing or revising
striping for parking spaces and driving lanes based on a parking layout fitting the Remaining
City Property, and repairing or replacing damaged lights, parking meters and signs); or (ii) if the
City in its sole discretion has decided to proceed with the City Town Square Project promptly
after Project completion, deliver the Remaining City Property in an unrestored but clean
condition appropriate for future construction and increase the Town Square Contribution by the
mutually agreed reasonable estimated cost if Developer had been required to perform the surface
lot restoration work described in clause (i) less the actual hard and soft costs of delivering the
surface ready for the City Town Square Project pursuant to this clause (ii). The Parties will
cooperate in good faith to document, including photo documentation, an assessment of the
condition of the Remaining City Property prior to initiation of the temporary use. The Developer
will consult with the City on transferring any construction fence rental agreement to the City or
facilitating the City entering into a separate rental agreement to retain the construction fencing,
in the City’s sole discretion. If Developer fails to perform the work necessary, City may but is
not obligated to perform such work and Developer thereafter shall promptly reimburse City its
costs and expenses, including attorney’s fees.
6.4 Community Outreach. At least sixty (60) days prior to closing public parking use
of the Temporary Use Areas in preparation for implementation of the Temporary Storage and
Staging Plans and with prior good faith consultation with the City, Developer shall provide
notice to the community of the closure, construction status and anticipated timing in the form of
Property signage, a website and other reasonable measures developed in consultation with the
City. The Developer shall maintain updated information and on-site signage which provides
regular updates on construction status, timing and alternative locations for parking.
6.5 Easements and Public Use.
6.5.1 Parking Garage. To meet the City’s parking requirements and Historic
Requirements for the Project, an underground parking garage, with a portion located within the
City Easement Area, is essential to the Project during the life of the Project. The Developer shall
be solely responsible for the design, permitting, construction, operation, maintenance, repair, and
security of the Parking Garage, including the portion on the City Easement Area (consisting of
approximately thirty-two (32) parking spaces and one drive aisle). As part of the consideration
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for City entering into this Agreement and granting Developer the right to locate a portion of the
Parking Garage on the Parking Garage Easement Area, Developer shall grant an irrevocable
license to the City to provide public parking in the Parking Garage, including rights of ingress
and egress to and from the Parking Garage on the 220 Park Property, which shall have priority
over Mortgagees, pursuant to the terms of a City Easement and Public Use Agreement in a form
substantially similar to Exhibit D attached hereto and incorporated herein by this reference.
6.5.2 Terrace Improvements. The Parties agree the Project provides an
opportunity to have a mutually attractive transition between the Project and the Remaining City
Property, which may become the future City Town Square Project. As requested by the City, the
Developer shall be solely responsible for design, permitting, construction, operation, and repair
of the Terrace Improvements on the City Terrace Improvements Easement Area. To facilitate
the Developer’s commitment, the City shall grant to the Developer an easement on the City
Terrace Improvements Easement Area, subject to the City retaining certain rights to require the
Developer allow public access to a substantial portion, all as provided in the City Easement and
Public Use Agreement in a form substantially similar to Exhibit D. The Developer shall submit,
and the City shall review and in good faith approve, the Terrace Improvements conceptual
design as set forth on the Schedule of Performance.
6.5.3 Consideration. The Parties acknowledge that the Developer’s
commitment to construct the Terrace Improvements and make them available for City use,
provide public parking in the Parking Garage, and pay the Town Square Contribution are all
provided in exchange for the City’s agreements herein, including granting the two easements on
the City Easement Area, and each provides substantial benefits and cost savings to the City. The
Parties also acknowledge that the City considers the Town Square Contribution, public parking
in the Parking Garage, and construction and use of the Terrace Improvements to be consideration
for City granting the easements for the Parking Garage and Terrace Improvements.
6.5.4 Execution and Recordation. The Parties will execute and record the City
Easement and Public Use Agreement as set forth on the Schedule of Performance. Prior to
recordation of the City Easement and Public Use Agreement, the Developer shall submit to the
City Community Development Director evidence of debt and equity commitments sufficient to
acquire the 220 Park Property and pay the full estimated cost, including reasonable
contingencies, to construct the Project, including the Parking Garage and the Terrace
Improvements, and to satisfy Developer’s financial obligations specified in this Agreement. In
the event Developer identifies legal, financial, regulatory or other concerns arising from relying
on an easement from City for the Parking Garage or Terrace Improvements which may prevent
their development, City agrees in its reasonable discretion to cooperate with Developer to
consider alternative means to provide such rights.
6.6 City Town Square Project Coordination. The Parties acknowledge and agree that
the City Town Square Project is entirely separate from the Project and is subject to the sole
discretion of the City. It is, however, the Parties’ intention and desire to expedite planning,
permitting, construction, and occupancy of the Project so that: (i) what has been a vacant
property in the heart of downtown can be activated and will once again be a center of activity for
the community, and (ii) the opportunities for synergy and cost efficiencies with the future Town
Square (if City elects to develop it) may be maximized. This Agreement includes a Schedule of
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Performance, set forth on Exhibit C, to incentive redevelopment and coordinate the Project with
the potential City Town Square Project. This Agreement is in no way intended to commit or
require the City to proceed with the City Town Square Project, only to maximize opportunities
for coordination and potential cost efficiencies.
6.6.1 Town Square Contribution. At the issuance of the Superstructure permit,
the Developer shall pay City Two Million Dollars ($2,000,000), which City agrees to use
towards construction of the City Town Square Project if the Town Square Project proceeds,
subject to the adjustments in Section 6.3.3 above and Sections 6.6.2 through Section 6.6.5, below
(the “Town Square Contribution”).
6.6.2 Escalator. To incentivize an earlier start to Project construction and to
account for inflation and potential additional cost escalation over time, in the event the
Developer has not either (i) Commenced Construction of the Project or (ii) obtained the
Superstructure permit for the Project within three (3) years after the Effective Date of this
Agreement, the amount of the Town Square Contribution shall be increased by five percent (5%)
per year thereafter (compounded annually) until paid to the City. Force Majeure Delay pursuant
to Section 3.2.2 shall not apply to postpone applying this escalator provision to the Town Square
Contribution.
6.6.3 Potential Off-Site Improvements and Credits. Only if desired and
requested by the City in its sole discretion within the times set forth on the Schedule of
Performance and approved by City as provided in this Section 6.3.3, Developer shall design and
construct one or more improvements for the City Town Square Project listed below. The Parties
acknowledge that the list of possible improvements may change as the Town Square design is
refined, but currently includes the following as depicted in the Offsite Improvements
Alternatives Diagram prepared by Bionic dated January 27, 2021 consisting of one sheet and on
file with the City’s Community Development Department, Planning Division (“City Town
Square Improvements”):
(a)Improvements to the Lorton Avenue and Park Road sidewalks
fronting the Town Square parcel.
(b)Widening of the Lorton Avenue sidewalk into the street right-of-
way along the Town Square parcel and/or along the Project parcel.
(c)Construction of a new culvert clean-out within Park Road,
provided there are no significant utility conflicts or relocations involved in this scope.
The City Town Square Improvements are optional and independent and can be requested by the
City individually or collectively or not at all, and only if the City makes the findings required
under Applicable Law to permit the work by the Developer without a competitive public bid
process. If constructed, these City Town Square Improvements shall be separately contracted by
the Developer, shall be considered each a “public work” under applicable Prevailing Wage
Laws, and credited dollar-for-dollar (both reasonable and actual third party soft and hard costs)
against and in no event to exceed the amount of the Town Square Contribution. At the times set
forth on the Schedule of Performance, the City shall provide Developer a written notice stating
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its desire for the Developer to complete the design and construct any, all, or none, of the City
Town Square Improvements, and the Parties shall cooperate in good faith to complete the design
and cost estimate. At the times set forth on the Schedule of Performance, the Developer shall
notify the City in writing of the final cost estimates for the City Town Square Improvements
(broken down by line item), and the City shall provide final written notice to the Developer
confirming whether it would like the Developer to build any, some, all or none of the selected
City Town Square Improvements at stated cost estimates and schedule. If the Developer has not
yet contributed the Town Square Contribution, then the cost estimates of the City Town Square
Improvements City has selected and approved shall be credited against the Town Square
Contribution. If the Developer has already contributed the Town Square Contribution, then the
City shall reimburse the Developer the amount of the approved cost estimates concurrently with
its approval notice. If City opts not to proceed with any of the City Town Square Improvements,
Developer shall not be entitled to any credit or reimbursement. The City shall waive or pay on
Developer’s behalf any permit or inspection fees for the City Town Square Improvements. With
City approval by separate agreement specifying the financial terms (e.g., Guaranteed Maximum
pricing commitment, contingency fund, schedule and assumption of overrun risk), the Developer
shall construct the City Town Square Improvements and complete such improvements on a
schedule agreed to by the City and Developer at the time of City approval. Nothing in this
Agreement commits the Developer to construct the Town Square Improvements that exceed the
Town Square Contribution or to accept any potential overrun risks that could exceed the Town
Square Contribution. The City agrees it shall not delay or withhold a Certificate of Occupancy
(or any other permit or inspection) for the Project related to the construction of these City Town
Square Improvements. At the completion of the City Town Square Improvements (final
inspection and acceptance by City), the Developer shall submit to City a reasonable accounting
of the actual City Town Square Improvements costs Developer has incurred for approval and
dollar-for-dollar reconciliation with the Town Square Contribution, and the Party owing money
in accordance with the reconciliation shall reimburse the other Party within thirty (30) days of
delivery of the accounting.
6.6.4 Use of Town Square Contribution.
(a)The City agrees that for a reasonable time after the Effective Date
as the City may determine in its discretion, the Town Square Contribution shall not be treated as
general funds of the City and shall be earmarked and accounted for separately to be used for the
actual construction costs associated with the City Town Square Project. City may determine
after such reasonable time that the Town Square Contribution is not required to be earmarked for
the City Town Square Project, whether because the City Town Square Project will not be
constructed, or will not be constructed for a considerable time, or does not require use of the
Town Square Contribution, or another reason, and thereafter the Town Square Contribution may
be treated as general funds of the City for City’s use in its discretion.
(b)If at any time after the Effective Date the City wishes the
Developer to construct all or any portion of the City Town Square Project with the construction
of the Project beyond what is identified in Section 6.3.3, above, the Parties will meet and confer
in good faith to negotiate and document the terms of such construction as either an amendment to
this Agreement pursuant to Section 9.1 so long as this Agreement is in effect or by separate
agreement if it has terminated by its terms. If the Developer has paid the Town Square
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Contribution to the City, this Section 6.6.54 shall survive the termination of this Agreement until
the obligations herein are satisfied.
6.6.5 Good Faith Coordination. The Developer and the City Community
Development Director shall provide regular, as-needed updates, including meet and confer as
necessary, regarding the status and schedule of the Project and the City Town Square Project.
6.6.6 Compliance with Laws. Developer shall comply with all Applicable Laws
in its construction of the Project and each component, including but not limited to applicable
California Labor Code requirements.
ARTICLE 7
ANNUAL REVIEW
7.1 Periodic Review.
7.1.1 As required by California Government Code Section 65865.1, City and
Developer shall review this Agreement and all actions taken pursuant to the terms of this
Agreement with respect to the development of the Project every twelve (12) months to determine
good faith compliance with this Agreement.
7.1.2 The annual review shall be conducted as provided herein:
(a)Developer’s Submittal. By the anniversary of the Effective Date
each year or other annualized date established by the City, the Developer shall provide
documentation of its compliance with this Agreement during the previous calendar year.
(b)Finding of Compliance. Within thirty (30) days after the
Developer submits its documentation under Section 7.1.2(a), the Community Development
Director shall review the submittal and make an initial determination as to whether the
Developer has demonstrated good faith compliance with the material terms of this Agreement. If
the Community Development Director makes an affirmative determination, or does not
determine otherwise within thirty (30) days, the annual review shall be deemed concluded. The
Community Development Director may also, prior to the expiration of the 30-day period
specified in this Section 7.1.2(b), refer the determination of good faith compliance to the City
Council, and shall provide Developer notice of his or her intent to make such referral in said 30-
day period.
(c)Hearing to Determine Compliance Upon Referral.
(i)If the Community Development Director issues the notice
under Section 7.1.2(b), within seven (7) days of such notice, the Community Development
Director shall request that the City Council schedule a public hearing on Developer’s good faith
compliance with the material terms of this Agreement. The Community Development Director
shall prepare and submit to the City Council, City Manager and Developer a staff report making
his or her initial recommendation at least fourteen (14) days prior to the public hearing. Such
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report shall specify in reasonable detail the basis for the recommendation so that Developer may
address the recommendation at the hearing held by the City Council, including, if necessary, a
proposal for a reasonable time for Developer to take any necessary corrective action(s).
(ii)If scheduled as provided in Section 7.1.2(c)(i), above, the
City Council shall conduct a noticed public hearing to make a final determination on the good
faith compliance by Developer with the material terms of this Agreement. At such hearing,
Developer shall be given an opportunity to be heard and submit evidence, orally and in writing,
and address the recommendations of the staff report germane to the issue of Developer’s good
faith compliance. The findings of the City Council on whether Developer has complied with this
Agreement for the period under review shall be based upon substantial evidence in the record. If
the City Council determines, based upon substantial evidence, that Developer has complied in
good faith with the terms and conditions of this Agreement, the review for that period shall be
concluded.
(iii)If, however, the City Council determines, based upon
substantial evidence in the record, that Developer has not complied in good faith with the terms
and conditions of the Agreement, the City Council may take those actions it deems appropriate,
including but not limited to, modification or termination of this Agreement, in accordance with
California Government Code Section 65865.1. Alternatively, in its discretion the City Council
may specify a reasonable time and steps for Developer to bring its performance into good faith
compliance with the materials terms of this Agreement (“City Recommendation”). If the City
Council provides a City Recommendation, Developer shall submit evidence of compliance to the
Community Development Director within the time period granted, and the Director shall report
the results and the Director’s recommendation to the City Council. If the areas of
noncompliance specified in the City Recommendation are not corrected within the time limits so
prescribed, then the City Council may, in its discretion, extend the time for compliance as it may
determine (with conditions, if the City Council deems appropriate) take action to modify this
Agreement (subject to agreement by Developer if such modifications would materially increase
any obligation, cost or liability of the Developer), or take action to terminate this Agreement.
7.2 Certificate of Good Faith Compliance. If, after an annual review, City finds
Developer has complied in good faith with the material terms of this Agreement, City shall
within ten (10) days after receiving a request from Developer issue to Developer a certificate of
compliance certifying that Developer has so complied through the period of the applicable
annual review.
7.3 No Waiver. Failure of City to conduct an annual review shall not constitute a
waiver by City of its rights to otherwise enforce the provisions of this Agreement nor shall
Developer have or assert any defense to such enforcement by reason of any such failure to
conduct an annual review.
7.4 Reimbursement of Annual Review Costs. Developer shall pay the City for the
reasonable costs incurred, including charges for City Attorney and other City staff time, in
conducting its annual review of the Agreement within thirty (30) days of receipt of an invoice
therefore. Reimbursement shall be based on City’s charges for City Attorney and staff time
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billed for legal review and development project application review pursuant to City’s fee
schedule in effect at the time.
ARTICLE 8
MORTGAGEE PROTECTION
8.1 Mortgagee Protection. This Agreement, expressly including but not limited to the
City Easement and Public Use Agreement which is intended to and shall run with the land upon
recordation, shall be superior and senior to any lien placed upon the Property or any portion
thereof after the date of recording the Agreement, including the lien of any deed of trust or
mortgage (“Mortgage”). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of
the terms and conditions contained in this Agreement shall be binding upon and effective against
and shall run to the benefit of any person or entity, including any deed of trust beneficiary or
mortgagee (“Mortgagee”), who acquires title or possession to the Property, or any portion
thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise, subject to the
provisions in Section 2.1 limiting the benefits of this Agreement to Developer and its successors
but not a separate owner of the Property.
8.2 Mortgagee Not Obligated.
8.2.1 Notwithstanding the provisions of Section 8.1 above, except as specified
in Section 8.2.2, no Mortgagee shall have any obligation or duty under this Agreement to
construct or complete the construction of the Project, or any portion thereof, or to guarantee such
construction or completion; provided, however, that a Mortgagee shall not be entitled to devote
the Property to any use except in full compliance with the Project Approvals and this Agreement
nor to construct any improvements thereon or institute any uses other than those uses and
improvements provided for or authorized by this Agreement and the Project Approvals
8.2.2 Any Mortgagee or successor in interest to a Mortgagee that is not
proceeding to construct or complete construction of the Project pursuant to the Project Approvals
and this Agreement must comply with all federal and state law and permit conditions applicable
to the Project construction and shall not allow or permit a nuisance. The Parties agree that this
Agreement is not intended to allow or authorize a Mortgagee to remain on the City Property for
any longer than would otherwise be allowed by the terms of this Agreement, the City Easement
and Public Use Agreement or any agreement with the City related to the Temporary Use Areas.
8.3 Notice of Default to Mortgagee; Right to Cure. With respect to any Mortgage
granted by Developer as provided herein, then so long as any such Mortgage shall remain
unsatisfied of record, the following provisions shall apply:
8.3.1 City, upon serving Developer any notice of Default, shall also serve a
copy of such notice upon any Mortgagee at the address provided to City, and no notice by City to
Developer hereunder shall affect any rights of a Mortgagee unless and until a copy thereof has
been so served on such Mortgagee; provided, however, that failure so to deliver any such notice
shall in no way affect the validity of the notice sent to Developer as between Developer and City.
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8.3.2 In the event of a Default by Developer, any Mortgagee shall have the right
to remedy, or cause to be remedied, such Default within sixty (60) days following the later to
occur of (i) the date of Mortgagee’s receipt of the notice referred to in Section 8.3.1 above, or (ii)
the expiration of the period provided herein for Developer to remedy or cure such Default, and
City shall accept such performance by or at the insistence of the Mortgagee as if the same had
been timely made by Developer; provided, however, that (a) if such Default is not capable of
being cured within the timeframes set forth in this Section 8.3.2 and Mortgagee commences to
cure the Default within such timeframes, then Mortgagee shall have such additional time as is
required to cure the Default so long as Mortgagee diligently prosecutes the cure to completion
and (b) if possession of the Property (or portion thereof) is required to effectuate such cure or
remedy, the Mortgagee shall be deemed to have timely cured or remedied if it commences the
proceedings necessary to obtain possession thereof within sixty (60) days after receipt of the
copy of the notice, diligently pursues such proceedings to completion, and, after obtaining
possession, diligently completes such cure or remedy.
8.3.3 Any notice or other communication which City shall desire or is required
to give to or serve upon the Mortgagee shall be in writing and shall be served in the manner set
forth in Section 13.5, addressed to the Mortgagee at the address provided by Mortgagee to City.
Any notice or other communication which Mortgagee shall give to or serve upon City shall be
deemed to have been duly given or served if sent in the manner and at City’s address as set forth
in Section 13.5, or at such other address as shall be designated by City by notice in writing given
to the Mortgagee in like manner.
8.4 No Supersedure. Nothing in this Article 8 shall be deemed to supersede or release
a Mortgagee or modify a Mortgagee’s obligations under any subdivision or public improvement
agreement, the City Easement and Public Use Agreement, temporary access agreement or other
obligation incurred with respect to the Project outside this Agreement, nor shall any provision of
this Article 8 constitute an obligation of City to such Mortgagee, except as to the notice
requirements of Section 8.3.
8.5 Technical Amendments to this Article 8. City agrees to reasonably consider and
approve interpretations and/or technical amendments to the provisions of this Agreement that are
required by lenders for the acquisition and construction of the improvements on the Property or
any refinancing thereof and to otherwise cooperate in good faith with Developer at Developer’s
expense to facilitate Developer’s negotiations with lenders.
ARTICLE 9
AMENDMENT OF AGREEMENT AND PROJECT APPROVALS
9.1 Amendment of this Agreement.
9.1.1 Amendment of Agreement by Mutual Consent. Except as otherwise
expressly provided herein (including but not limited to Section 2.1 related to termination in the
event Developer does not timely Close, Section 7.1 relating to City’s annual review and Section
12.3 relating to termination in the event of a Default), this Agreement may be terminated,
modified or amended in writing from time to time only by mutual consent of the Parties hereto or
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their successors-in-interest or assigns, and in accordance with the provisions of Government
Code sections 65867, 65867.5 and 65868.
9.1.2 Refinement by Operating Memoranda.
(a)The Parties acknowledge that the provisions of this Agreement
require a close degree of cooperation between City and Developer, and during the course of
implementing this Agreement and developing the Project refinements and clarifications of this
Agreement become appropriate and desired with respect to the details of performance of City
and Developer. If and when, from time to time, during the Term of this Agreement, City and
Developer agree that such a refinement is necessary or appropriate, City and Developer shall
effectuate such refinement through a memorandum (the “Operating Memorandum”) approved
in writing by City and Developer, which, after execution, shall be attached hereto as an
addendum and become a part hereof. Any Operating Memorandum may be further refined from
time to time as necessary with future approval by City and Developer. No Operating
Memorandum shall constitute an amendment to this Agreement requiring public notice or
hearing. The City Manager, in consultation with the City Attorney, shall make the determination
on behalf of City whether a requested refinement may be effectuated pursuant to this
Section 9.1.2 or whether the requested refinement is of such a character to constitute an
amendment hereof pursuant to Section 9.1.3 below. The City Manager shall be authorized to
execute any Operating Memoranda hereunder on behalf of City.
(b)By way of illustration but not limitation of the above criteria for an
Operating Memorandum, any refinement of this Agreement which does not substantially affect
(i) the Term; (ii) permitted uses of the Property; (iii) provisions for the reservation or dedication
of land; (iv) conditions, terms, restrictions or requirements for Subsequent Approvals; (v)
increases in the density or intensity of the use of the Property or the maximum height or size of
proposed buildings; (vi) monetary contributions by Developer; or (vii) the provision of public
benefits described in ARTICLE 6, shall be deemed suitable for an Operating Memorandum and
the City Manager, except to the extent otherwise required by Applicable Law, may approve the
Operating Memorandum without notice and public hearing.
9.1.3 Agreement Amendments. Any revision to this Agreement which is
determined not to qualify for an Operating Memorandum as set forth in Section 9.1.2 shall be
deemed an “Agreement Amendment” and shall require giving of notice and a public hearing
before the Planning Commission and City Council in accordance with Applicable Law. The City
Manager shall have the authority in her or her reasonable discretion to determine if a proposed
revision is an Agreement Amendment subject to this Section 9.1.3 or qualifies for an Operating
Memorandum subject to Section 9.1.2.
9.1.4 Requirement for Writing. No modification, amendment or other change to
this Agreement or any provision hereof shall be effective for any purpose unless specifically set
forth in writing which refers expressly to this Agreement and is signed by duly authorized
representatives of each Party or their successors.
9.2 Amendments to Development Agreement Statute. This Agreement has been
entered into in reliance upon the provisions of the Development Agreement Statute as those
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provisions existed as of the date of execution of this Agreement. No amendment or addition to
those provisions which would materially affect the interpretation or enforceability of this
Agreement shall be applicable to this Agreement, unless such amendment or addition is
specifically required by the California State Legislature, or is mandated by a court of competent
jurisdiction. If such amendment or change is permissive (as opposed to mandatory), this
Agreement shall not be affected by same unless the Parties mutually agree in writing to amend
this Agreement to permit such applicability.
9.3 Amendments to Project Approvals.
9.3.1 Generally. Project Approvals (except for this Agreement the amendment
process for which is set forth in this ARTICLE 9) may be amended or modified from time to
time, but only at the written request of Developer or with the written consent of Developer at its
sole discretion. All amendments to the Project Approvals shall automatically become part of the
Project Approvals. The permitted uses of the Property, the maximum density, the intensity of
use, the maximum height and size of the proposed buildings, provisions for reservation or
dedication of land for public purposes, the conditions, terms, restrictions and requirements for
subsequent discretionary actions, the provisions for public improvements and financing of public
improvements, and the other terms and conditions of development as set forth in all such
amendments shall be automatically vested pursuant to this Agreement, without requiring an
amendment to this Agreement. Amendments to the Project Approvals shall be governed by the
Project Approvals and the Applicable Laws. City shall not request or process any amendment to
the Project Approvals that would affect the Property or the Project without Developer’s prior
written consent.
9.3.2 Administrative Amendments of Project Approvals. Upon the request of
Developer for an amendment or modification of any Project Approvals (except for this
Agreement the amendment process for which is set forth in this ARTICLE 9), the City Manager
or his or her designee shall determine: (a) whether the requested amendment or modification is
minor when considered in light of the Project as a whole; and (b) whether the requested
amendment or modification substantially conforms with the material terms of this Agreement
and the Applicable Laws and may be processed administratively. If the City Manager or his or
her designee finds that the requested amendment or modification is both minor and substantially
conforms with the material terms of this Agreement and the Applicable Laws, the amendment or
modification shall be determined to be an “Administrative Project Amendment,” and the City
Manager or his or her designee may approve the Administrative Project Amendment, without
public notice or a public hearing. Without limiting the generality of the foregoing, lot line
adjustments, minor reductions in the density, intensity, scale or scope of the Project, minor
alterations in vehicle circulation patterns or vehicle access points, variations in the location of
structures that do not substantially alter the design concepts of the Project, substitution of
comparable landscaping for any landscaping shown on any development plan or landscape plan,
variations in the location or installation of utilities and other infrastructure connections and
facilities that do not substantially alter design concepts of the Project, and minor adjustments to a
subdivision map or the Property legal description shall be deemed to be minor amendments or
modifications. Any request of Developer for an amendment or modification to a Project
Approval that is determined not to be an Administrative Project Amendment as set forth above
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shall be subject to review, consideration and action pursuant to the Applicable Laws and this
Agreement.
9.4 Reliance on GPEIR and MND. The GPEIR and MND, which have been certified
by City as being in compliance with CEQA, address the potential environmental impacts of the
entire Project as it is described in the Project Approvals as described in the Environmental
Consistency Checklist and MMRP. It is agreed that, in acting on any discretionary Subsequent
Project Approvals for the Project, City will rely on the GPEIR, MND, and Environmental
Consistency Checklist to satisfy the requirements of CEQA to the fullest extent permissible by
CEQA, and City will not require a new initial study, negative declaration or subsequent or
supplemental EIR unless City determines that such additional analysis and processing are
required by CEQA and will not impose on the Project any mitigation measures or other
conditions of approval other than those specifically imposed by the Project Approvals and the
MMRP or specifically required by the Applicable Laws.
9.5 Subsequent CEQA Review. In the event that any additional CEQA
documentation is legally required for any discretionary Subsequent Project Approval for the
Project, then the scope of such documentation shall be focused, to the extent possible consistent
with CEQA, on the specific subject matter of the Subsequent Project Approval, and City, at
Developer’s expense, shall conduct such CEQA review as expeditiously as possible.
ARTICLE 10
COOPERATION AND IMPLEMENTATION
10.1 Subsequent Project Approvals. Certain subsequent land use approvals,
entitlements, and permits other than the Existing Approvals, will be necessary or desirable for
implementation of the Project (“Subsequent Project Approvals”). The Subsequent Project
Approvals may include, without limitation, the following: amendments of the Existing
Approvals, grading permits, building permits, sewer and water connection permits, certificates of
occupancy, lot line adjustments, site plans, development plans, land use plans, building plans and
specifications, parcel maps and subdivision maps, and any amendments to, or repealing of, any
of the foregoing. Except as otherwise expressly provided herein, the City shall not impose
requirements or conditions upon Project development and construction that are inconsistent with
the Existing Approvals and the terms and conditions of this Agreement. Further, except as
expressly provided herein, City shall not exercise discretion in determining whether or how to
grant Subsequent Project Approvals in a manner that would prevent development of the Project
for the uses and to the maximum intensity of development set forth in the Existing Approvals.
10.2 Scope of Review of Subsequent Project Approvals. By approving the Existing
Approvals, City has made a final policy decision that the Project is in the best interests of the
public health, safety and general welfare. Accordingly, City shall not use its authority in
considering any application for a discretionary Subsequent Project Approval to change the policy
decisions reflected by the Existing Approvals or otherwise to prevent or delay development of
the Project as set forth in the Existing Approvals. Instead, the Subsequent Approvals shall be
deemed to be tools to implement those final policy decisions.
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10.3 Processing Applications for Subsequent Project Approvals.
10.3.1 Developer acknowledges that City cannot begin processing applications
for Subsequent Project Approvals until Developer submits complete applications on a timely
basis. Developer shall use diligent good faith efforts to (i) provide to City in a timely manner
any and all documents, applications, plans, and other information necessary for City to carry out
its obligations hereunder; and (ii) cause Developer’s planners, engineers, and all other
consultants to provide to City in a timely manner all such documents, applications, plans and
other materials required under Applicable Laws. It is the express intent of Developer and City to
cooperate and diligently work to obtain any and all Subsequent Project Approvals.
10.3.2 Upon submission by Developer of all appropriate applications and
Processing Fees for any pending Subsequent Project Approval, City shall, to the full extent
allowed by Applicable Laws, promptly and diligently, subject to City ordinances, policies and
procedures regarding hiring and contracting, commence and complete all steps necessary to act
on Developer’s currently pending Subsequent Project Approval applications including: (i) if
legally required, providing notice and holding public hearings; and (ii) acting on any such
pending Subsequent Project Approval application. Upon Developer’s request and prior
approval, when City deems it necessary or desirable, City will endeavor to retain consultants to
assist in reviewing and processing Developer’s applications, at Developer’s expense including
any added expense for City staff to retain and supervise such consultants. City similarly will
consider Developer’s request to arrange overtime staff assistance; provided, Developer
acknowledges that City will have other development applications and planning work in process
or waiting to be processed from time to time, and Developer’s Subsequent Project Approval
applications are not entitled to priority treatment to the disadvantage of such other applications
and work; and provided further, Developer acknowledges there are practical constraints on
City’s ability to arrange staff overtime.
10.3.3 The City agrees to provide an expedited plan check process for the
approval of Project drawings consistent with its existing practices for expedited plan checks.
Developer agrees to pay the City’s established fees for City’s Building Division to provide
expedited plan check services and to pay City’s reasonable charges for any plan check services
required by other City staff and departments. The City shall use reasonable efforts to provide
such plan checks within three (3) weeks of a submittal that meets the requirements of Section
10.3.2. The City acknowledges the City’s timing processing of Subsequent Project Approvals
and plan checks/inspections is essential to the Developer’s ability to achieve the Schedule of
Performance.
10.4 Other Agency Subsequent Project Approvals; Authority of City. City shall
cooperate with Developer, to the extent appropriate and as permitted by law, in Developer’s
efforts to obtain, as may be required, Other Agency Subsequent Project Approvals.
Notwithstanding the issuance to Developer of Other Agency Subsequent Project Approvals,
Developer agrees that City shall have the right to review, modify, approve and/or reject any and
all submissions subject to the Other Agency Subsequent Project Approvals which, but for the
authority of the other governmental or quasi-governmental entities issuing the Other Agency
Subsequent Project Approvals, would otherwise require City approval. Developer agrees that
City may review, modify, approve and/or reject any such materials or applications to ensure
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consistency with this Agreement and the Project Approvals and Developer shall incorporate any
and all changes required by City prior to submitting such materials and applications to the other
governmental or quasi-governmental entities for review and/or approval.
10.5 Implementation of Necessary Mitigation Measures and Conditions. Developer
shall, at its sole cost and expense, comply with the MMRP requirements and conditions of
approval included with the Project Approvals as applicable to the Property and Project.
10.6 Cooperation in the Event of Legal Challenge. City and Developer shall cooperate
in the defense of any court action or proceeding instituted by a third party or other governmental
entity or official challenging the validity of any provision of this Agreement or the City’s
approval of this Agreement or any of the Project Approvals (each, a “Litigation Challenge”),
and the Parties shall keep each other informed of all developments relating to such defense,
subject only to confidentiality requirements that may prevent the communication of such
information. Developer’s monetary obligations under this Section 10.6 shall survive expiration
or earlier termination of this Agreement. The provisions of this Section 10.6 shall not apply to
any challenges that may arise concerning the City Easement and Public Use Agreement
separately from challenges to initial approval of this Agreement, as described in Section 3 of the
City Easement and Public Use Agreement, and such challenges instead shall be governed by
Sections 3 and 4 of the City Easement and Public Use Agreement.
10.6.1 Meet and Confer. If a Litigation Challenge is filed, upon receipt of the
petition, the Parties will have twenty (20) days to meet and confer regarding the merits of such
Litigation Challenge and to determine whether to defend against the Litigation Challenge, which
period may be extended by the Parties’ mutual agreement so long as it does not impact any
litigation deadlines. The City and Developer mutually commit to meet all required litigation
timelines and deadlines. The Parties shall expeditiously enter a joint defense agreement, which
will include among other things, provisions regarding confidentiality. The City Manager is
authorized to negotiate and enter such joint defense agreement in a form acceptable to the City
Attorney. Such joint defense agreement shall also provide that any proposed settlement of a
Litigation Challenge shall be subject to City’s and Developer’s approval, each in its reasonable
discretion. If the terms of the proposed settlement would constitute an amendment or
modification of this Agreement, the settlement shall not become effective unless such
amendment or modification is approved by Developer, and by City in accordance with
Applicable Laws, and City reserves its full legislative discretion with respect thereto.
10.6.2 Defense Election. If, after meeting and conferring, the Parties mutually
agree (each in its sole discretion) to defend against the Litigation Challenge, then the following
shall apply:
(a)Joint Representation. For the purposes of cost-efficiency and
coordination, the Parties shall first consider defending the Litigation Challenge jointly, with
counsel and under terms of joint representation mutually acceptable to the City and Developer
(each in its sole discretion), at the Developer’s sole cost and expense.
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(b)If the Parties cannot reach timely and mutual agreement on a joint
counsel, and Developer continues to elect (in its sole discretion) to defend against the Litigation
Challenge, then:
(i)Developer shall take the lead role defending such Litigation
Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its
choice;
(ii)City may, in its sole discretion, elect to be separately
represented by the outside legal counsel of its choice in any such action or proceeding with the
reasonable costs of such representation to be paid by Developer;
(iii)Developer shall reimburse City, within ten (10) business
days following City’s written demand therefor, which may be made from time to time during the
course of such litigation, all necessary and reasonable costs incurred by City in connection with
the Litigation Challenge, including City’s administrative, outside legal fees and costs, and court
costs;
(iv)The Parties intend that the City’s role under subsection
(b)(ii) shall be primarily oversight although the City reserves its right to protect the City’s
interests, and the City shall make good faith efforts to maximize coordination and minimize its
outside legal costs (for example, minimizing filing separate briefs, and duplication of effort to
the extent feasible).
(v)For any Litigation Challenge which the Developer has
elected to defend under this Section 10.6.2(b), Developer shall indemnify, defend, and hold
harmless the City and the City Parties from any liability, damages, claim, action, cause of action,
judgment (including City costs to effectuate such judgment, including any attorneys’ fees or cost
awards, including attorneys’ fees awarded under Code of Civil Procedure Section 1021.5,
assessed or awarded against City by way of judgment, settlement, or stipulation), loss (direct or
indirect), obligation, order, fine, penalty or proceeding (including legal costs, attorneys' fees,
expert witness or consultant fees, staff time, expenses or costs) related to such Litigation
Challenge. Notwithstanding the foregoing, the Developer shall not be responsible for any
reimbursement to the City for the time of the City Attorney related to the Litigation Challenge if
the City is represented by outside legal counsel.
10.6.3 Developer Election Not To Defend. If Developer elects, in its sole and
absolute discretion, not to defend against the Litigation Challenge, it shall deliver written notice
to the City regarding such decision. If Developer elects not to defend, the City has the right, but
not the obligation, to proceed to defend against the Litigation Challenge and shall take the lead
role defending such Litigation Challenge and may, in its sole discretion, elect to be represented
by the legal counsel of its choice, at its sole cost and expense. If Developer elects not to defend,
the City has the right, but not the obligation, to terminate this Agreement and any Project
Approvals then in effect, and to consider the Developer’s application for any Subsequent Project
Approvals withdrawn. In the event the City does not terminate this Agreement, then if the terms
of a proposed settlement would constitute an amendment or modification of this Agreement, the
settlement shall not become effective unless such amendment or modification is approved by
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Developer, and by City in accordance with Applicable Laws, and City reserves its full legislative
discretion with respect thereto. In the event the Developer does not approve such amendment or
modification, the City retains the right, but not the obligation, to terminate this Agreement and
any Project Approvals then in effect, and to consider the Developer’s application for any
Subsequent Project Approvals withdrawn. If Developer elects pursuant to this Section 10.6.3 not
to defend against the Litigation Challenge and so notifies City, and City thereafter elects not to
defend against the Litigation Challenge, Developer shall be liable for and shall promptly
reimburse City for (i) any costs, fees or payments owed as a result of the Litigation Challenge
that may be City’s obligation, whether by judgment, settlement or otherwise, and (ii) all
necessary and reasonable costs incurred by City in connection with the Litigation Challenge,
including City’s administrative, outside legal fees and costs, and court costs.
10.7 Revision to Project. In the event of a court order issued as a result of a successful
Litigation Challenge, City shall, to the extent permitted by law or court order, in good faith seek
to comply with the court order in such a manner as will maintain the integrity of the Project
Approvals and avoid or minimize to the greatest extent possible (i) any impact to the
development of the Project as provided for in, and contemplated by, the Project Approvals, or (ii)
any conflict with the Project Approvals or frustration of the intent or purpose of the Project
Approvals.
10.8 State, Federal or Case Law. Where any state, federal or case law allows City to
exercise any discretion or take any act with respect to that law, City shall, in an expeditious and
timely manner, at the earliest possible time, (a) exercise its discretion in such a way as to be
consistent with, and carry out the terms of, this Agreement and (b) take such other actions as
may be necessary to carry out in good faith the terms of this Agreement.
10.9 Indemnity and Hold Harmless. Developer shall indemnify, defend (with counsel
reasonably acceptable to City) and hold harmless the City, including its elected and appointed
officers, officials, employees, contractors, representatives and authorized agents (each a “City
Party” and collectively “City Parties”) from and against any and all Claims, including Claims
for any bodily injury, death, or property damage, resulting directly or indirectly from the
development or construction of the Project and, if applicable from compliance with the terms of
this Agreement, and/or from any other acts or omissions of Developer under this Agreement,
whether such acts or omissions are by Developer or any of Developer’s contractors,
subcontractors, agents or employees; provided that Developer’s obligation to indemnify and hold
harmless (but not Developer’s duty to defend) shall be limited (and shall not apply) to the extent
such Claims are found to arise from the gross negligence or willful misconduct of a City Party.
This Section 10.9 includes any and all present and future Claims arising out of or in any way
connected with Developer’s or its contractors’ obligations to comply with any applicable State
Labor Code requirements and implementing regulations of the Department of Industrial
Relations pertaining to “public works” (collectively, “Prevailing Wage Laws”), including all
claims that may be made by contractors, subcontractors or other third party claimants pursuant to
Labor Code sections 1726 and 1781. Developer’s obligations under this Section 10.9 shall
survive expiration or earlier termination of this Agreement.
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10.10 Sales Tax Point of Sale Designation.
10.10.1 The Developer shall use good faith, diligent efforts to the extent
allowed by law to require all persons and entities providing materials to be used in connection
with the construction and development of, or incorporated into, the Project, including by way of
illustration but not limitation bulk lumber, concrete, structural steel, roof trusses and other pre-
fabricated building components, to (a) obtain a use tax direct payment permit; (b) elect to obtain
a subcontractor permit for the job site of a contract valued at Five Million Dollars ($5,000,000)
or more; or (c) otherwise designate the Property as the place of use of material used in the
construction of the Project in order to have the local portion of the sales and use tax distributed
directly to City instead of through the county-wide pool. Developer shall instruct its general
contractor(s) for the Project to, and shall cause such general contractor(s) to instruct its/their
subcontractors to, cooperate with City to ensure the local sales/use tax derived from construction
of the Project is allocated to City to the fullest extent possible and to the extent allowed by law.
This Section 10.10 shall not apply to tenants who perform their own tenant improvement work.
10.10.2 To assist City in its efforts to ensure that such local sales/use tax is
so allocated to City, Developer shall on an annual basis, or as frequently as quarterly upon City’s
request, provide City with such information as shall be reasonably requested by City regarding
subcontractors working on the Project with contracts in excess of the amount set forth above,
including a description of all applicable work and materials and the dollar value of such
subcontracts, and, if applicable, evidence of their designation, such as approvals or applications
for the direct payment permit, of City as the place of use of such work and materials. City may
use such information to contact each subcontractor who may qualify for local allocation of use
taxes to City. Notwithstanding the foregoing, the failure of any general contractor(s) or
subcontractor(s) to allocate sales and use tax revenues as provided herein or to comply with this
Section 10.10 shall not constitute a breach by Developer under this Agreement.
ARTICLE 11
ASSIGNMENT
11.1 Transfers. Prior to the issuance of a final Certificate of Occupancy for the
Project, neither City nor Developer may assign its rights or delegate its duties under this
Agreement, except for Developer Permitted Transfers as defined below, without the express
written consent of the other Party, which consent will not be unreasonably withheld or delayed.
City may refuse to give consent to a proposed transfer only if, in light of the proposed
transferee’s reputation, experience with similar projects, and/or financial resources, such
transferee would not, in City’s reasonable opinion, be able to perform the obligations proposed to
be assumed by such transferee, and such determinations will be made by the City Council. Prior
to any transfer, the Developer and assignee shall enter into an assignment and assumption
agreement subject to prior approval, which shall not be unreasonably withheld or delayed, of the
City Manager and the City Attorney. Developer acknowledges that satisfying the terms of this
Agreement will achieve certain goals, objectives and public benefits for City which provide
material consideration and incentive for City agreeing to enter into this Agreement and agreeing
to grant the Existing Approvals, and justify certain restrictions on the right of Developer to
assign or transfer its interest under this Agreement in order to assure achievement of such goals,
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objectives, and public benefits, and therefore Developer agrees to and accepts the restrictions set
forth in this Section 11.1 as reasonable and as a material inducement for City to enter into this
Agreement. Developer shall pay the reasonable costs borne by City in connection with its
review of the proposed assignment, including costs of attorney review and City staff time.
Notwithstanding any other provision of this Agreement to the contrary, each of following
transfers are permitted and shall not require City consent under this Section 11.1 (each a
“Developer Permitted Transfer”):
(a)Any transfer for financing purposes to secure the funds necessary
for construction and/or permanent financing of the Project;
(b)An assignment of this Agreement to an Affiliate of Developer;
(c)Dedications and grants of easements and rights of way required in
accordance with the Project Approvals; or
(d)Any leasing activity.
ARTICLE 12
DEFAULT; REMEDIES; TERMINATION
12.1 Breach and Default. Subject to extensions of time under Section 3.2.2 or by
mutual consent in writing, failure by a Party to perform any action or covenant or satisfy any
obligation required by this Agreement within thirty (30) days following receipt of written notice
from another Party specifying the failure shall constitute a “Default” under this Agreement;
provided, however, that if the failure to perform is non-monetary and cannot reasonably be cured
within such thirty (30) day period, a Party shall be allowed additional time as is reasonably
necessary to cure the failure so long as such Party commences to cure the failure within the thirty
(30) day period and thereafter diligently and continuously prosecutes the cure to completion at
the earliest practicable date. Notwithstanding the above notice and cure provisions, if such
failure to perform by Developer or a circumstance regarding the Project in City’s reasonable
opinion creates a public health or welfare emergency, City may but is not obligated to implement
a cure and Developer thereafter shall promptly reimburse City its costs and expenses, including
attorney’s fees. The City shall provide Developer with reasonable notice appropriate for the
circumstances of its determination of and nature of the emergency. If notice cannot be given
prior to commencement of the cure, the City shall provide the Developer with its explanation of
the emergency and a reasonable explanation for why prior notice could not be given.
12.2 Withholding of Permits. In the event of a Default by Developer, or following
notice of breach to Developer pursuant to Section 12.1 above and during the cure period
provided therein, upon a finding by the City Manager or his or her designee that Developer is in
breach, City shall have the right to refuse to issue any permit or other Subsequent Project
Approvals to which Developer would otherwise have been entitled pursuant to this Agreement
until such Default or breach is cured. This provision is in addition to and shall not limit any
actions that City may take to enforce the conditions of the Project Approvals.
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12.3 Termination. In the event of a Default by a Party, the non-defaulting Party or
Parties shall have the right to terminate this Agreement upon giving notice of intent to terminate
pursuant to Government Code Section 65868 and any regulations of City implementing such
section. Following notice of intent to terminate, the matter shall be scheduled for consideration
and review in the manner set forth in Government Code Section 65867 and any City regulations
implementing said section. Following consideration of the evidence presented in said review
before the City Council, a Party alleging Default by another Party may give written notice of
termination of this Agreement to the other Parties. Termination of this Agreement shall be
subject to the provisions of Section 12.8 hereof.
12.4 Specific Performance for Violation of a Condition. If City issues a Project
Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by
Developer in the future, and if Developer then fails to satisfy such condition, City shall be
entitled to specific performance for the purpose of causing Developer to satisfy such condition.
12.5 Resolution of Disputes.
12.5.1 Resolution Prior to Legal Action. With regard to any dispute involving
the Project or this Agreement, the resolution of which is not provided for by this Agreement or
Applicable Laws, prior to instituting legal action pursuant to Section 12.5.2, a Party shall, at the
request of the other Party, meet with designated representatives of the requesting Party promptly
following its request, which meeting may be continued by mutual consent. The parties to any
such meetings shall attempt in good faith to resolve any such disputes, and by mutual consent
may arrange a third party to mediate the dispute. In the event the Parties are not able to resolve
the dispute and reach an agreement within fourteen (14) days of the request, either Party may
initiate legal action or take such other actions available under this Agreement or the law.
Nothing in this Section 12.5.1 shall in any way be interpreted as requiring that Developer and
City and/or City’s designee reach agreement with regard to those matters being addressed, nor
shall the outcome of these meetings be binding in any way on City or Developer unless expressly
agreed to in writing by the parties to such meetings,and the fact of participation in such
meetings and any information provided or oral or written statements made by a Party shall not be
admissible or otherwise used against the Party in any subsequent legal action.. Nothing in this
Section 12.8 shall require a Party to postpone instituting any injunctive proceeding or to pursue
resolution under this Section 12.5.1 if it believes in good faith that such postponement will cause
irreparable harm to such Party.
12.5.2 Institution of Legal Actions. In addition to any other rights or remedies, a
Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants
or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any
other remedies consistent with the purpose of this Agreement. Any such legal action shall be
brought in the Superior Court for San Mateo County, California, except for actions that include
claims in which the Federal District Court for the Northern District of the State of California has
original jurisdiction, in which case the Northern District of the State of California shall be the
proper venue.
12.5.3 Acceptance of Service of Process. In the event that any legal action is
commenced by Developer against City, service of process on City shall be made by personal
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service upon the City Clerk of City or in such other manner as may be provided by law. In the
event that any legal action is commenced by City against Developer, service of process on
Developer shall be made by personal service upon W-K Ventures, Inc., a California corporation,
Developer’s registered agent for service of process in California, at 901 Mariner's Island
Boulevard, 7th Floor, San Mateo, CA 94404 or in such other manner as may be provided by
law.
12.6 Rights and Remedies Are Cumulative. The rights and remedies of the Parties are
cumulative, and the exercise by a Party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by another Party, except as otherwise expressly provided
herein.
12.7 Limitation on Damages. Notwithstanding anything to the contrary herein, neither
Party shall have the right to recover any consequential, special, or punitive damages in the event
of a Default by the other Party. In no event shall City or the Indemnified Parties be liable in
damages for any default under this Agreement, it being expressly understood and agreed that the
sole legal remedy available Developer for a Default by City shall be an action in mandamus,
specific performance or other injunctive or declaratory relief to enforce the provisions of this
Agreement, or to terminate this Agreement. City shall have all remedies available in law or
equity, including but not limited to an action in mandamus, specific performance or other
injunctive or declaratory relief to enforce the provisions of this Agreement, or to terminate this
Agreement. In addition, City shall have the right to seek actual damages from Developer,
including but not limited to enforcing payment of money or the performance of obligations
requiring payment of money by Developer under the terms of this Agreement, including but not
limited to Sections 6.3.1, 6.3.2, 6.3.3, 7.4, 10.6.2, 10.6.3, 11.1, 12.1 and 13.12. As part of
recovering such damages, City shall be entitled to interest thereon at the lesser of ten percent
(10%) per annum or the maximum rate permitted by law, compounded annually, from the date of
expenditure. In connection with the foregoing provisions, each Party acknowledges, warrants
and represents that it has been fully informed with respect to, and represented by counsel of such
Party’s choice in connection with, the rights and remedies of such Party hereunder and the
waivers herein contained, and after such advice and consultation has presently and actually
intended, with full knowledge of such Party’s rights and remedies otherwise available at law or
in equity, to waive and relinquish such rights and remedies to the extent specified herein, and to
rely to the extent herein specified solely on the remedies provided for herein with respect to any
breach of this Agreement by another Party.
12.8 Surviving Provisions. In the event this Agreement is terminated, no Party shall
have any further rights or obligations hereunder, except for those obligations of Developer which
by their terms survive expiration or termination, or which are set forth in Section 10.6
(Cooperation in the Event of Legal Challenge).
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ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Incorporation of Recitals, Exhibits and Introductory Paragraph. The Recitals
contained in this Agreement, the introductory paragraph preceding the Recitals and the Exhibits
attached hereto are hereby incorporated into this Agreement as if fully set forth herein.
13.2 Severability. If any term or provision of this Agreement, or the application of any
term or provision of this Agreement to a particular situation, is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this
Agreement, or the application of this Agreement to other situations, shall continue in full force
and effect unless amended or modified by mutual consent of the Parties
13.3 Construction. Each reference herein to this Agreement or any of the Existing
Approvals or Subsequent Project Approvals shall be deemed to refer to the Agreement, Existing
Approval or Subsequent Project Approval as it may be amended from time to time, whether or
not the particular reference refers to such possible amendment. Section headings in this
Agreement are for convenience only and are not intended to be used in interpreting or construing
the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and
revised by legal counsel for City and Developer, and no presumption or rule that ambiguities
shall be construed against the drafting party shall apply to the interpretation or enforcement of
this Agreement. Unless the context clearly requires otherwise, (i) the plural and singular
numbers shall each be deemed to include the other; (ii) the masculine, feminine, and neuter
genders shall each be deemed to include the others; (iii) “shall,” “will,” or “agrees” are
mandatory, and “may” is permissive; (iv) “or” is not exclusive; and (v) “include,” “includes”
and “including” are not limiting and shall be construed as if followed by the words “without
limitation.”
13.4 Covenants Running with the Land. Except as otherwise more specifically
provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards,
terms, covenants and obligations, shall be binding upon the Parties and their respective
successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities
acquiring the Property, or any interest therein, and shall inure to the benefit of the Parties and
their respective successors and assigns, as provided in Government Code Section 65868.5.
13.5 Notices. Any notice or communication required hereunder between City and
Developer must be in writing, and may be given either personally, by registered or certified mail
(return receipt requested), or by Federal Express or other similar courier promising overnight
delivery. If personally delivered, a notice shall be deemed to have been given when delivered to
the party to whom it is addressed. If given by registered or certified mail, such notice or
communication shall be deemed to have been given and received on the first to occur of
(i) actual receipt by any of the addressees designated below as the party to whom notices are to
be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly
addressed, with postage prepaid, is deposited in the United States mail. If given by Federal
Express or similar courier, a notice or communication shall be deemed to have been given and
received on the date delivered as shown on a receipt issued by the courier. Notices and
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communications may be sent by email to expedite transmittal of information and responses, but
shall not be deemed given unless and until followed by transmittal by one of the other processes
described in this Section 13.5. Any party hereto may at any time, by giving ten (10) days written
notice to the other party hereto, designate any other address in substitution of the address to
which such notice or communication shall be given. Such notices or communications shall be
given to the parties at their addresses set forth below:
To City:City of Burlingame
501 Primrose Road
Burlingame, CA 94010
Attention: Director of Community Development
With a copy to:City of Burlingame
501 Primrose Road
Burlingame, CA 94010
Attention: City Attorney
and:Burke, Williams & Sorensen, LLP
1901 Harrison Street, 9th floor
Oakland, CA 94612
Attention: Edward Shaffer or Gerald Ramiza
To Developer:
and:
220 Park-Burlingame, LLC
c/o Sares-Regis Group of Northern California
901 Mariner’s Island Boulevard, 7th Floor
San Mateo, CA 94404
Attention: Mark Kroll
220 Park-Burlingame, LLC
c/o Dostart Development Company, LLC
145 Addison Avenue
Palo Alto, CA 94301
Attention: Steve Dostart
With a copy to:Holland & Knight
50 California Street, Suite 2800
San Francisco, CA 94111
Attention: Tamsen Plume
13.6 Counterparts and Exhibits; Entire Agreement. This Agreement may be executed
in multiple counterparts, each of which shall be deemed to be an original. This Agreement,
together with the Existing Approvals and attached Exhibits, constitutes the final and exclusive
understanding and agreement of the Parties and supersedes all negotiations or previous
agreements of the Parties with respect to all or any part of the subject matter hereof.
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13.7 Recordation of Agreement. Pursuant to California Government Code
Section 65868.5, no later than ten (10) days after the Effective Date, the City Clerk and
Developer shall place this fully executed Agreement with First American Title Company under
Escrow Number NCS-982741-SC (“Escrow Officer”) to be held in the same escrow as the PSA,
with instructions to record in the Official Records of the County of San Mateo at Closing or to
return the original signatures of each Party to each Party upon termination of this Agreement
pursuant to Section 2.1(a).
13.8 No Joint Venture or Partnership. It is specifically understood and agreed to by
and between the Parties hereto that: (i) the subject development is a private development;
(ii) City has no interest or responsibilities for, or duty to, third parties concerning any public
improvements until such time, and only until such time, that City accepts the same pursuant to
the provisions of this Agreement or in connection with the various Existing Approvals or
Subsequent Project Approvals; (iii) Developer shall have full power over and exclusive control
of the Project herein described, subject only to the limitations and obligations of Developer
under this Agreement, Existing Approvals, Subsequent Project Approvals, and Applicable Laws;
and (iv) City and Developer hereby renounce the existence of any form of agency relationship,
joint venture or partnership between City and Developer and agree that nothing contained herein
or in any document executed in connection herewith shall be construed as creating any such
relationship between City and Developer.
13.9 Waivers. Notwithstanding any other provision in this Agreement, any failures or
delays by any Party in asserting any of its rights and remedies under this Agreement shall not
operate as a waiver of any such rights or remedies, or deprive any such Party of its right to
institute and maintain any actions or proceedings which it may deem necessary to protect, assert
or enforce any such rights or remedies. A Party may specifically and expressly waive in writing
any condition or breach of this Agreement by another Party, but no such waiver shall constitute a
further or continuing waiver of any preceding or succeeding breach of the same or any other
provision. Consent by one Party to any act by another Party shall not be deemed to imply
consent or waiver of the necessity of obtaining such consent for the same or similar acts in the
future.
13.10 California Law; Venue. This Agreement shall be construed and enforced in
accordance with the laws of the State of California, without reference to choice of law
provisions. The exclusive venue for any disputes or legal actions shall be the Superior Court of
California in and for the County of San Mateo or the US District Court, Northern California
District.
13.11 City Approvals and Actions. Whenever reference is made herein to an action or
approval to be undertaken by City, the City Manager or his or her designee is authorized to act
on behalf of City, unless specifically provided otherwise or the context requires otherwise.
13.12 Estoppel Certificates. A Party may, at any time during the Term of this
Agreement, and from time to time, deliver written notice to another Party requesting such Party
to certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full
force and effect and a binding obligation of the Parties, (ii) this Agreement has not been
amended or modified either orally or in writing, or if amended; identifying the amendments, (iii)
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the requesting Party is not in default in the performance of its obligations under this Agreement,
or if in default, to describe therein the nature and amount of any such defaults, and (iv) any other
information reasonably requested. The requesting Party shall be responsible for all reasonable
costs incurred by the Party from which such certification is requested and shall reimburse such
costs within thirty (30) days of receiving the certifying Party’s request for reimbursement. The
Party receiving a request hereunder shall execute and return such certificate or give a written,
detailed response explaining why it will not do so within fourteen (14) days following the receipt
thereof. The failure of either Party to provide the requested certificate within such fourteen (14)
day period shall constitute a confirmation that this Agreement is in full force and effect and no
modification or default exists. The Director of Community Development, the Planning Director
or the City Manager, or their authorized designee, shall have the right to execute any certificate
requested by Developer hereunder. City acknowledges that a certificate hereunder may be relied
upon by transferees and Mortgagees.
13.13 No Third Party Beneficiaries. City and Developer hereby renounce the existence
of any third party beneficiary to this Agreement and agree that nothing contained herein shall be
construed as giving any other person or entity third party beneficiary status.
13.14 Signatures. The individuals executing this Agreement represent and warrant that
they have the right, power, legal capacity, and authority to enter into and to execute this
Agreement on behalf of the respective legal entities of Developer and City, and that the
Delaware limited liability companies comprising Developer each has full right and authority to
enter into this Agreement and perform all of its obligations hereunder.
13.15 Time. Time is of the essence of this Agreement and of each and every term and
condition hereof.
13.16 Days. The word “days” as used in this Agreement refers to calendar days unless
specifically provided otherwise. In the event that any period to perform an obligation or notice
period under this Agreement starts or ends on a Saturday, Sunday, or state or national holiday,
the applicable time period shall be extended to the next regular City business day.
[Signatures begin on next page.]
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IN WITNESS WHEREOF, this Agreement has been entered into by and between
Developer and City as of the day and year first above written.
CITY:
City of Burlingame, a municipal corporation
organized and existing under the laws of the
State of California
By:
Name:_________________________
Title:__________________________
APPROVED AS TO FORM:[signature must be notarized]
By:
Scott Spansail, Interim City Attorney
ATTEST:
By:
___________________, City Clerk
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DEVELOPER:
220 PARK-BURLINGAME, LLC, a Delaware limited liability company
By: SRGNC MF Park Road, LLC
a Delaware limited liability company
Its: Manager
By: SRGNC MF, LLC,
a Delaware limited liability company
Its: Manager
By: ____________________
Name: __________________
Its: ____________________
By: DDC 220 Park Road Associates, LLC,
a Delaware limited liability company
Its: Member
By:
Name:
Its:
[signatures must be notarized]
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[Insert notary pages]
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EXHIBIT A-1
Property Legal Description
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EXHIBIT A-2
CITY PROPERTY LEGAL DESCRIPTION
[Insert]
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EXHIBIT B
IMPACT FEES
*Estimates based on design; to be finalized at issuance of permits.
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EXHIBIT C
SCHEDULE OF PERFORMANCE
It is both Parties’ intention and desire to expedite planning, permitting, construction, and
occupancy of the Project so that what has been a vacant property in the heart of downtown can
be activated and will once again be a hive of activity for the community. The schedule
milestones provided below are intended to help facilitate coordination between the City and the
Developer to advance the Project in a timely manner and to ensure that all opportunities for
synergy and efficiency with the future Town Square are able to be realized. The schedule
milestones provided are presented as outside dates, and the Developer anticipates proceeding as
quickly as reasonably feasible given market conditions.
The provisions of the Schedule of Performance are intended as a convenient guideline for the
Parties and are not intended to supersede or amend the referenced operative sections listed
therein. In the event of any conflict between this Schedule of Performance and the Development
Agreement to which this Exhibit C is attached (“DA”), the DA shall control. Capitalized terms
used below shall have the meaning ascribed to such terms in the DA. All of the dates and
deadlines described herein shall be subject to extension by the City Manager or “Force Majeure
Delay” (except for specified exclusions) in accordance with Section 3.2.1 of the DA.
#MILESTONE TIMING REQUIREMENT
Pre-Closing/General
1 DA executed and transmitted to 220 Park
Property Escrow Officer (§2.1 and §13.7).
Within 10 days of Effective Date.
2 Developer submits the Terrace Improvements
concept design to City (§6.5.2).
Within 10 days of Effective Date.
3 City approves the Terrace Improvements
concept design (§6.5.2).
Within 120 days of submittal by Developer.
4 Developer and City provide regular updates
on Project and City Town Square Project
status and construction timing (§6.6.5).
On a regular, as-as needed basis as the
circumstances warrant.
5 Developer to comply with interim use and
maintenance obligations (§6.1).
As often as the circumstances warrant or in
the times provided in any City permits or
approvals of work.
6 Developer to submit applications for the
Demolition, Foundation and Grading,
Superstructure and encroachment building
permits for the Project (§6.2).
Within twenty-four (24) months of the
Effective Date of DA.
7 City to provide Developer a written notice of
its preliminary intent for Developer to
construct any, all, or none of the City Town
Square Improvements, pending cost estimates
(§6.6.3).
Within sixty (60) days after Developer’s
submission of an application for the first
building permit for the Project.
8 Developer to provide written notice to City
enumerating the projected costs of the
Within ninety (90) days of City providing
notice of its intent for Developer to construct
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selected City Town Square
Improvements. Developer and City to clarify
design details and provide accurate market
pricing (§6.6.3).
any or all of the City Town Square
Improvements.
9 City to provide written notice confirming
whether it would like Developer to build any
or all of the selected City Town Square
Improvements at stated cost estimates
(§6.6.3).
Within ninety (90) days of receiving written
notice of the cost of said improvements from
Developer.
10 City and Developer enter agreement
specifying financial arrangement (e.g.,
Guaranteed Maximum Pricing commitment,
contingency fund, assumption of overrun risk)
for any City Town Square Improvements, if
any (§6.6.3).
Prior to initiation of any work on the City
Town Square Improvements by Developer.
11 City and Developer execute and deliver to
escrow the City Easement and Public Use
Agreement to the Escrow Officer (§6.5).
Prior to issuance of any building permit that
would include work on the City Easement
Area. Recording shall be coordinated by the
Escrow Officer through the same escrow as
closing and any construction loans.
12 Developer submits to City Community
Development Director evidence of financing
commitments sufficient to acquire the
Property and construct the Project (§6.5.4).
Prior to recordation of the City Easement and
Public Use Agreement.
13 Developer Closes on Property (§2.1).Five (5) years from the Effective Date
(“Outside Closing Date”)
Post-Closing
14 City and Developer enter agreement for
Developer’s use of the Temporary Use Areas
and record City Easement and Public Use
Agreement (§6.4 and §6.5).
Prior to initiation of any use of the City
Temporary Use Areas or Easement Area.
15 Developer shall provide notice to the
community regarding removal of public
parking and commencement of construction
activities (§6.4).
At least sixty (60) days prior to removal of
existing public parking.
16 Developer makes Town Square Contribution
(§6.6.1).
Prior to issuance of Superstructure building
permit for the Project.
17 Developer Commences Construction of
Project. For the purposes of this Schedule of
Performance, “Commences Construction”
means that the following have occurred as to
the Project: (i) Developer has closed and
owns fee title to the Property, (ii) the
Development Agreement and City Easement
and Public Use Agreement have been
recorded, (iii) City has issued to Developer
the four major Project permits (demolition,
Prior to termination of the Development
Agreement pursuant to Section 3.2.
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foundation and grading, Superstructure, and
encroachment), (iv) Developer has signed
contracts with a general contractor for the
demolition and/or foundation and grading
work, and (v) Developer has given the general
contractor a notice to proceed and has caused
the general contractor to physically
commence demolition and/or foundation and
grading of the Property and City Easement
Area (§3.2). And, for the purposes of this
Schedule of Performance, “Caused the
general contractor to physically
commence” work means that actual
demolition or excavation has occurred and is
continuing.
18 Developer continues construction, without
unreasonable delay or interruption, pursuant
to and within the times set forth in City’s
building permits, as may be extended by City
in the normal course (§4.4.2 and §6.2).
Pursuant to the terms, conditions and
expiration dates of the building permits
issued by City for the Project.
19 City to confirm to Developer whether it
intends to construct its City Town Square
Project immediately following the Project’s
completion, or if it would prefer for
Developer to restore the City Property as a
surface parking lot (§6.3.3).
Twelve (12) months before the projected
completion of the Project, as Developer may
update the completion date during Project
construction.
20 Developer completes construction of any City
Town Square Improvements, and restores the
Temporary Use Areas as directed by City,
including a reasonable schedule for
completion (§6.3.2 and §6.6.3).
As agreed with City when the designs for the
City Town Square Improvements are
approved by the City Council, pending
building permit approval by the Building
Division.
21 Developer submits final accounting and
reconciliation for any City Town Square
Improvements, subject to terms in the
improvement agreement (§6.6.3).
City and Developer to meet within thirty (30)
days following submittal of final accounting
and request for reimbursement, if needed to
discuss request. Reimbursement by City to
follow confirmation of amount due.
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EXHIBIT D
[FORM OF] CITY EASEMENT AND PUBLIC USE AGREEMENT
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Burlingame
501 Primrose Road
Burlingame, CA 94010
Attention: City Manager
Space Above This Line Reserved for Recorder’s Use
Exempt from Recording Fee Per Government Code Section 27383
CITY EASEMENT AND PUBLIC USE AGREEMENT
220 Park Road
This City Easement and Public Use Agreement (this “Agreement”), dated as of
_____________, 20__ (the “Effective Date”), is entered into by and between the CITY OF
BURLINGAME, a municipal corporation organized and existing under the laws of the State of
California (the “City”) and 220 PARK – BURLINGAME, LLC, a Delaware limited liability
company (the “Developer”).
Recitals
A.Developer owns approximately 1.28 acres of real property located at 220 Park
Road, Burlingame, California (APN 029-204-250), as more fully described on Exhibit A-1
attached hereto and depicted on Exhibit A-2 attached hereto (the “220 Park Property”).
B.City owns approximately 0.65 acres of real property known as “Lot E,” which is
immediately adjacent to the 220 Park Property, as more fully described on Exhibit B-1 attached
hereto and depicted on Exhibit B-2 attached hereto (the “City Property”).
C.City and Developer are parties to that certain Development Agreement dated as of
____________, 2021, recorded in the Official Records of San Mateo County concurrently with
this Agreement (the “Development Agreement”), for the improvement of the 220 Park Property
and portions of the City Property. The improvements to and on the 220 Park Property and
portions of the City Property, consisting generally of restoration and reuse of the historic Post
Office Building on the 220 Park Property together with construction of upper stories for office
use and construction of an underground parking garage, are referred to collectively in this
Agreement as the “Project,” as that term is defined in the Development Agreement.)
D.Developer proposes to build as part of the Project an underground parking garage
beneath the 220 Park Property and extending under a portion of the City Property (the “Parking
Improvements”), as described further below. Under the terms of the Development Agreement,
City has agreed to grant Developer an exclusive easement beneath a portion of the City Property
described more particularly below as the “Parking Easement Area,” for the construction,
installation, use, repair and maintenance of the Parking Improvements. In return, Developer has
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agreed to make the Parking Improvements available for public use on nights and weekends, as
described further below.
E.As requested by the City, the Developer has agreed to build, as part of the Project,
certain outdoor surface improvements consisting of a multi-level terrace and related
improvements on the City Property (the “Terrace Improvements”) that connect to the 220 Park
Property, all as described further below. Under the terms of the Development Agreement, City
has agreed to grant Developer an exclusive easement over a portion of the City Property
described more particularly below as the “Terrace Improvements Easement Area,” for the
construction, installation, use, repair, maintenance and management of the Terrace
Improvements, while reserving certain rights of the City to authorize public use of a substantial
portion of the Terrace Improvements. As required by the Development Agreement, Developer
has demonstrated to City that Developer has obtained debt and equity commitments sufficient to
pay the full estimated cost, including reasonable contingencies, to construct the Project,
including the Parking Improvements and Terrace Improvements described in this Agreement,
and to satisfy Developer’s other financial obligations specified in the Development Agreement.
F.The Development Agreement has a defined term and will expire or terminate by
its terms. This Agreement is intended to implement the intent of the Parties in the Development
Agreement in a separate agreement that will survive the expiration or termination of the
Development Agreement.
G.This Agreement, including the easements and public use rights granted herein, is
being executed and delivered by City and Developer to accommodate the development of the
Project while preserving the historic elements of the historic Post Office as well as ensuring
rights of the public to (i) night and weekend parking in the Parking Improvements in a key
location in downtown and (ii) access to and use of the Terrace Improvements. The Parties
acknowledge that any and all costs related to the design, construction and future use, repair and
maintenance of the improvements authorized by this Agreement are required to be funded
entirely by the Developer, and that City shall have no obligation whatsoever with respect to
operation, maintenance or other expenses related to the Parking Improvements or Terrace
Improvements. City has determined that the value of the public parking provided to the City, the
Town Square Contribution by Developer as described in the Development Agreement, and the
preservation of the historic Post Office exceeds the value of the easement rights granted to the
Developer by the City.
NOW, THEREFORE, for valuable consideration, the receipt of which each of the parties
hereto does hereby acknowledge, the parties hereto do hereby agree as follows:
AGREEMENT
1.Grant of Easements.
1.1 Parking Easement. Pursuant to the Development Agreement, Developer
intends to construct an approximately 280-space two-level underground parking garage as part of
the Project to meet both the City’s parking requirements as modified by the historic variance, and
the City’s historic preservation requirements for the historic Post Office building on the 220 Park
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Property (the “Parking Improvements”). A portion of the Parking Improvements, consisting of
approximately 32 parking spaces and related drive lanes (the “Parking Easement
Improvements”), will be situated under that portion of the City Property described on Exhibit C-
1 attached hereto and depicted on Exhibit C-2 attached hereto (the “City Easement Area”).
Accordingly, subject to the provisions of this Agreement, City hereby grants to Developer (a) an
exclusive easement (the “Parking Easement”) for the initial construction, installation, repair,
reconstruction, reinstallation, maintenance and operation and management of the Parking
Easement Improvements, all in accordance with this Agreement. The term “Parking Easement
Area” shall include any and all portions of the City Easement Area incidental and necessary to
effectuate the Parking Easement.
1.2 Terrace Improvements Easement.
1.2.1 Terrace Improvements. Developer intends to construct certain
exterior surface improvements consisting of a multi-level terrace or patio with stairs and ramps
and related landscaping on a portion of the City Property concurrently with the Project, as further
described and depicted in Exhibit E attached hereto (the “Terrace Improvements”). To provide a
mutually attractive transition between the Project and the City Property, as requested by the City,
Developer will design, construct, maintain and operate the Terrace Improvements on the surface
of the City Easement Area (the “Terrace Improvements Easement Area”). Accordingly, subject
to certain reserved rights of the City and in accordance with this Agreement, City hereby grants
to Developer an exclusive easement (the “Terrace Improvements Easement”) on, over, and upon
the Terrace Improvements Easement Area for the construction, installation, repair,
reconstruction, reinstallation, maintenance, operation and management of the Terrace
Improvements on the Terrace Improvements Easement Area.
1.2.2 Developer Exclusive Areas. The Terrace Improvements will
include an upper level terrace on the City Property (the “Top Terrace”), as shown on Exhibit D.
The Top Terrace is level with and directly adjacent to the 220 Park Property, and the Developer
plans to use space on the ground floor of the Project as a restaurant or café, with the Top Terrace
available for outdoor seating or similar use. City hereby grants Developer the exclusive right to
use the approximately 2,303 sf portion of the Top Terrace designated on Exhibit D for purposes
ancillary to uses of the adjacent ground floor portion of the Project (the “Top Terrace Exclusive
Area”) and the approximately 403 sf portion of the Terrace Improvements Easement Area for the
purposes of an ADA-compliant ramp to access the Top Terrace Exclusive Area and 220 Park
Property as shown on Exhibit D (“ADA Ramp Exclusive Area”). The Top Terrace Exclusive
Area and ADA Ramp Exclusive Area are collectively the “Developer Exclusive Areas.”
[Execution note: Exhibit D and this section should be revised to identify the specific
locations and areas per the final design and building permits prior to recordation.]
1.3 Easements. The Parking Easement and Terrace Improvements Easement
(including the Developer Exclusive Areas) are sometimes referred to in this Agreement
collectively as the “Easements.”) The Parking Easement Area and the Terrace Improvements
Easement Area (including the Developer Exclusive Areas) are sometimes referred to in this
Agreement collectively as the “Easement Areas.”
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1.4 Condition of the Easement Areas. Developer accepts the Easement Areas
in their existing AS-IS condition, with all faults and without warranty as to their suitability for
Developer’s purposes.
1.5 Term of Easements and Agreement.
1.5.1 Each Easement granted under this Agreement shall commence on
the Effective Date and shall remain in effect from the Effective Date until the end of the “Life of
the Building” (as defined below) unless sooner terminated as provided herein. Notwithstanding
the above, this Agreement and the Easements shall terminate and be of no further force or effect
if Developer does not complete the Project within the time period allowed for construction of the
Project as provided in the Development Agreement (the “Completion Deadline”).
(a) The “Life of the Building” means the period beginning on
issuance of a temporary certificate of occupancy for the Project by City and ending on such date
as (a) the building to be constructed by Developer on the 220 Park Property is substantially
demolished in connection with construction and development of a new development project, or
(b) a “Major Casualty” (as defined below) occurs, provided, if a Major Casualty occurs within
the first fifty (50) years following the Effective Date, and if Developer and/or its Mortgagees
elect to reconstruct the Project or any portion thereof (at their expense) and such reconstruction
occurs within five (5) years following the date of such Major Casualty, the Easements shall
remain in effect. As used herein “Major Casualty” means the Project is damaged or destroyed
such that the cost of restoration or reconstruction exceeds fifty percent (50%) of the fair market
value of the Project immediately prior to the Major Casualty.
(b) In the event of any Major Casualty within the first fifty (50)
years following the Effective Date, if Developer elects to restore the Project or any portion
thereof, Developer also shall restore the Parking Easement Improvements and the Terrace
Improvements pursuant to this Agreement, and shall retain use of the Easements for the
remainder of the Life of the Building.
1.5.2 Upon the expiration or termination of the Easements, whether as a
result of the end of the Life of the Building, a Major Casualty, Developer’s election not to
rebuild the Project after a qualifying Major Casualty, Developer’s failure to complete
construction of the Project, or any other qualifying cause under this Agreement, Developer at its
expense shall as soon as practicable after receiving City’s written request, apply for any required
City approvals and after receiving such approvals shall commence and diligently continue to
completion the excavation, demolition and removal of the Parking Easement Improvements and
the Terrace Improvements and restore the Parking Easement Area and the Terrace Improvements
Easement Area to substantially their condition existing as of the Effective Date; provided,
however, the City may elect to require the Developer to leave some or all of such improvements
in place, with no obligation on the Developer’s part to renovate, improve or otherwise modify
such improvements). In the event Developer fails to perform all of its obligations under this
Section 1.5.2, after notice and opportunity to cure, in addition to any other available remedies
City may elect (but is not obligated) to perform such work at Developer’s expense and thereafter
collect from Developer all commercially reasonable costs incurred, including but not limited to
any related reasonable attorneys’ fees, and City may impose, record and enforce a lien on the 220
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Park Property for such costs. If City conducts any such work, City shall not be liable for any
damage to the 220 Park Property or any improvements thereon that may result except for liability
resulting from the gross negligence or willful misconduct of City or any Indemnified Parties.
1.5.3 Following termination or expiration of the Easements, Developer,
within thirty (30) days following City’s request therefor, shall execute, acknowledge and deliver
to City for recordation in the Official Records of San Mateo County a quitclaim deed in form
reasonably acceptable to the City Attorney evidencing the expiration or termination of such
Easements. If circumstances result in one of the Easements being terminated earlier than the
other, this Section 1.5.3 shall be implemented separately as to each Easement. Upon termination
or expiration of all the Easements, this Agreement shall be deemed terminated.
2.City Rights.
2.1 Parking.
2.1.1 Shared Parking. Developer hereby grants to the City an irrevocable
license, effective following completion of construction of the Parking Improvements (including
the City’s final inspection for such improvements) and readiness for use and occupancy of the
Project by tenants, for the City to require that the Developer make available two hundred and
seventy-five (275) parking spaces in the Parking Improvements during “Public Parking Hours”
(as defined below) to the general public for the specific and limited purpose of vehicular parking,
including vehicular and pedestrian ingress and egress through the 220 Park Property as shown on
Exhibit C-2 (“Public Parking”). [Execution note: Exhibit C-2 should be revised to identify the
specific locations and areas per the final design and building permits prior to recordation.]
The remaining five (5) spaces shall be exclusive to the Developer. Developer shall be
responsible for providing commercially reasonable security for the Public Parking. The term
“Public Parking Hours” shall mean 5:00 p.m. to 11:00 p.m. Monday through Friday, and 8:00
a.m. to 11:00 p.m. on Saturday, Sunday and any day on which the office of the Secretary of State
of California is closed as a legal holiday. Developer may, in its sole and absolute discretion,
make parking available to the public on weekdays between 8:00 a.m. and 5:00 p.m. and on all
days between 11:00 p.m. and 8:00 a.m. Except as expressly specified in this Agreement, Public
Parking shall not be terminated, prevented or interrupted except with the prior written approval
of the City as provided herein; provided, Developer has the right to temporarily close the Parking
Improvements from time to time as reasonably needed by Developer for necessary maintenance
or repairs, subject to giving City at least two (2) days’ prior written notice which may be sent by
email to City’s Community Development Director and Public Works Director or designees at
email addresses provided by City, provided if such notice is not received by City by 5:00 p.m. on
a regular City working day it shall be deemed received on the next regular City working day. If
Developer in its reasonable discretion determines that maintenance or repairs require immediate
action and cannot reasonably be delayed for the notification period, it may proceed with such
work giving City as much notice as possible given the circumstances. If notice cannot be given
prior to commencement of the work, Developer shall provide City its explanation of the
emergency and why prior notice could not be given.
2.1.2 Parking Rates. During the Public Parking Hours, for visitors not
eligible for free or validated parking, the parking rates for the Public Parking shall not be less
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than the parking rates charged by the City at the Highland Garage on Highland Street, and no
more than one hundred twenty-five percent (125%) of such parking rates; provided, during
Public Parking hours when City does not charge any fee for parking at the Highland Garage,
Developer may base its parking rate on the fee City charges at 5:00 p.m. Developer retains the
right and full discretion to set different parking rates during weekdays between 8:00 a.m. and
5:00 p.m., and on all days between 11:00 p.m. and 8:00 a.m. If the Highland Garage no longer is
operated by City, City may designate another comparable City-operated parking facility to set
rates for the Public Parking.
2.1.3 Reasonable Rules and Restrictions on Public Parking. Developer
shall have the right to establish and enforce reasonable rules and regulations relating to Public
Parking, subject to review and approval by City in its reasonable discretion and so long as not
discriminatory or otherwise in violation of applicable law, which may include hours of operation
(but without shortening the minimum Public Parking Hours specified in Section 2.1.1).
Developer’s rules and regulations may be enforced by Developer and Project management as to
the Parking Improvements.
2.1.4 No Public Dedication. The rights hereunder are not intended to
and shall not be construed as a granting or conveyance of an express or implied offer of
dedication of any part of the 220 Park Property for public use, but solely as an irrevocable
license to the City to provide for and permit public parking and related ingress and egress as
provided herein. The Developer at all times shall retain full control and management of the 220
Park Property.
2.2 Terrace Improvements.
2.2.1 City Reserved Use Rights. In its grant of the Terrace
Improvements Easement, the City hereby reserves the right to require the Developer to allow
general public access to the Terrace Improvements (except the Developer Exclusive Areas)
following completion of construction of the Terrace Improvements (including the City’s final
inspection for such improvements) and their readiness for use by the public. Developer shall
have the right to temporarily close portions of the Terrace Improvements from time to time as
reasonably necessary to perform repairs or maintenance, subject to giving City at least two (2)
days’ prior written notice which may be sent by email to City’s Community Development
Director and Public Works Director or designees at email addresses provided by City, provided
if such notice is not received by City by 5:00 p.m. on a regular City working day it shall be
deemed received on the next regular City working day.
2.2.2 Reasonable Rules and Restrictions on Terrace Improvements.
Developer shall have the right to establish and enforce reasonable rules and regulations relating
to use of the Terrace Improvements, so long as not discriminatory or otherwise in violation of
applicable law. All rules and regulations are subject to review and approval by City, in its
reasonable discretion. It is the Parties’ intent that the rules and regulations of the Terrace
Improvements would be similar to/no more restrictive than the City’s rules and regulations
applicable to similarly situated City public parks. Following approval by City, Developer’s rules
and regulations may be enforced by Developer and Project management, and City’s police
department will exercise its inherent authority over activities on the Terrace Improvements
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Easement Area as public property. The Parties acknowledge that because the Developer is
obligated to maintain, repair and replace the Terrace Improvements, the Developer has a
particular interest in ensuring such reasonable rules and regulations are enforced to minimize and
avoid unnecessary damage or destruction to the Terrace Improvements beyond normal wear and
tear.
2.2.3 No Public Dedication. The Parties agree that the Terrace
Improvements are exclusively on the City Property and the Developer’s commitments and
covenants hereunder related to the Terrace Improvements are intended to and shall not be
construed as a granting or conveyance of an express or implied offer of dedication of any part of
the 220 Park Property or City Property for general public use. All public use of the Terrace
Improvements shall be pursuant to the City’s reserved rights under Section 2.2.1 which shall be
implemented and administered by the City (including the right by the City, in its discretion as the
owner of the City Property and licensee hereunder, to limit or close the Terrace Improvements to
the general public on a temporary or permanent basis).
2.3 Maintenance and Repair.
2.3.1 Developer shall maintain the Parking Improvements and the
Terrace Improvements (collectively, the “Maintenance Areas”) in a good, safe, functional, and
attractive condition, and to repair such improvements from time to time to restore them to their
original condition, or as City in its reasonable discretion may direct, all at Developer’s sole cost,
subject to and in accordance with the terms and conditions set forth in this Section 2.4.
Developer shall have the right to temporarily close the Maintenance Areas to the public from
time to time as needed to maintain and clean such areas, subject to the provisions in Section 2.1.1
as to the Public Parking.
2.3.2 Landscape Maintenance. Landscape maintenance shall include:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural appearance, and
irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all
planters, shrubs, lawns, ground covers, or other planted areas; staking for support of trees; and
repair and replacement of irrigation system components, as needed.
2.3.3 Clean-Up Maintenance. Clean-up maintenance shall include:
maintenance of all sidewalks, parking areas, drive lanes, and other paved areas, benches, tables
and other improvements, in clean and weed-free condition; maintenance of all such areas clear of
dirt, mud, trash, waste, debris or other matter which is unsafe or unsightly; the removal of graffiti
or other forms of vandalism; removal of all trash, litter, and other debris from improvements and
landscaping prior to mowing; and clearance and cleaning of all areas maintained prior to the end
of the day on which the maintenance operations are performed to ensure that all cuttings, weeds,
leaves and other debris are properly disposed of by maintenance workers.
2.3.4 Hardscape and Improvements Maintenance. Hardscape and
improvements maintenance shall include: the upkeep, repair and replacement of all lighting
fixtures, bulbs, ballasts and wiring; benches; tables; utilities systems; concrete work; parking
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area and drive lane pavements; striping of parking areas; and all other improvements comprising
the Maintenance Areas and any replacements thereof.
2.3.5 General. All maintenance work shall conform to all applicable
federal and state Occupational Safety and Health Act standards and regulations for the
performance of maintenance. Any and all chemicals, unhealthful substances, and pesticides used
in and during maintenance shall be applied in strict accordance with all governmental
requirements. Precautionary measures shall be employed recognizing that all areas are open to
public access.
2.3.6 Failure to Maintain.
(a) In the event City reasonably determines that Developer has
failed to perform necessary maintenance as described in this Section 2.4, City may send written
notice to Developer notifying it of the specific work required. If Developer so requests, City and
Developer shall participate in a good faith meet and confer process not to exceed seven (7) days
from the date of City’s notice. Thereafter, if Developer fails to commence the specified work (as
City may agree to modify as a result of the meet and confer) within thirty (30) days after receipt
of City’s original notice, or other period City agrees is reasonably necessary based on the nature
of the maintenance work, and thereafter diligently prosecute such work to completion, the City
has the right (but not the obligation) to declare a Default under and pursuant to Section 22.
(b) As to the Terrace Improvements only, following
Developer’s failure to satisfy its maintenance obligations pursuant to Section 2.3.6(a), City shall
have the right (but not obligation) to give Developer notice and thereafter perform all
maintenance City deems necessary, and City shall be permitted to recover the commercially
reasonable costs thereof, including reasonable attorneys’ fees and costs.
(c) In the case of a public health or welfare emergency and
with respect to the Terrace Improvements only, City shall have the right (but not obligation) to
perform all maintenance necessary to address the emergency situation without providing
Developer with prior notice and shall be permitted to recover the commercially reasonable costs
thereof, including reasonable attorneys’ fees and costs. The City shall provide Developer with
reasonable notice appropriate for the circumstances of its determination of and nature of the
emergency. If notice cannot be given prior to commencement of the cure, the City shall provide
the Developer with its explanation of the emergency and a reasonable explanation for why prior
notice could not be given.
2.4 Developer’s Insurance.
2.4.1 Ongoing Insurance. Developer shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to or death of persons or
damages to property which may occur in the Maintenance Areas and the Easement Areas, or
which may occur outside of the Maintenance Areas or Easement Areas that arise from or in
connection with the performance of the maintenance work under Section 2.3 by the Developer,
its agents, representatives, or employees, which insurance shall have the following minimum
scope and limits of insurance. The insurance requirements under this Agreement may be
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adjusted by City (in consultation with its insurance advisors) not more often than once every five
(5) years for the purpose of increasing the minimum limits of such insurance from time to time,
which increased limits shall be reasonable and customary for similar agreements in accordance
with generally accepted insurance industry standards.
(a) Commercial General Liability coverage (occurrence Form
CG 00 01) with minimum limits of $5,000,000 per occurrence for bodily injury, personal injury,
products and completed operations, and property damage. If Commercial General Liability or
other form with a general aggregate limit is used, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
(b) Automobile Liability coverage (Form CA 00 01 with
Code 1 – any auto) with minimum limits of $2,000,000 per accident for bodily injury and
property damage.
(c) Workers’ Compensation insurance as required by the State
of California, and Employers’ Liability insurance in the amount of $1,000,000 per accident for
bodily injury or disease.
(d) Property insurance insuring the Project in sufficient
amounts to fund restoration or reconstruction of the Parking Improvements and Terrace
Improvements. This coverage will not be required during construction, and will only be required
following issuance of a temporary certificate of occupancy for the Project.
(e) Garage Liability insurance (Form CA 00 05 or its
equivalent) for the Parking Improvements, including contractual liability and liability for bodily
injury or property damage in the minimum amount of $1,000,000 per occurrence. This coverage
will not be required during construction and will only be required following issuance of a
temporary certificate of occupancy for the Project. If Developer chooses to hire a third party to
manage the Parking Improvements, this coverage may be satisfied by that third party vendor’s
policy so long as the Indemnified Parties are listed as additional insureds on the policy.
(f) Umbrella or Excess Liability Insurance policies, if utilized,
must “follow form” and afford no less coverage than the primary policy.
2.4.2 Construction-Period Insurance. In addition to the insurance
coverage described in Section 2.6.1, during any construction, reconstruction or repair work on
the Project, Developer also shall procure and maintain during the period of such work a Builder’s
Risk policy with respect to such improvements, or maintain comparable coverage through a
property policy. Such insurance shall be maintained in an amount not less than one hundred
percent (100%) of the full insurable value of the improvements on the construction site.
2.4.3 Deductibles. Any deductibles or self-insured retentions must be
declared to and approved by the City. At the option of the City, either the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the Indemnified Parties; or the
Developer shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
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2.4.4 Other Requirements. All required insurance policies shall contain,
or be endorsed to contain, the following provisions, to the extent applicable to each policy:
(a) The Indemnified Parties are to be covered as Additional
Insureds as respects: liability arising out of work or operations performed by or on behalf of the
Developer; products and completed operations of the Developer; premises or Easement Areas
owned, occupied or used by the Developer; and automobiles owned, leased, hired or borrowed
by the Developer. The coverage shall contain no special limitations on the scope of protection
afforded to the Indemnified Parties.
(b) For any claims related to the Project, the Developer’s
insurance coverage shall be primary insurance as respects the Indemnified Parties. Any insurance
or self-insured maintained by the Indemnified Parties shall be excess of the Developer’s
insurance and shall not contribute with it.
(c) Any failure to comply with reporting or other provisions of
the policies including breaches of warranties shall not affect coverage provided to the
Indemnified Parties.
(d) The Developer’s insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits of the
insurer’s liability.
(e) Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced
in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return
receipt requested, has been given to the City.
(f) The policy limits of coverage shall be made available to the
full limits of the policy. The minimum limits stated above shall not serve to reduce the
Developer’s policy limits of coverage. Therefore, the requirements for coverage and limits shall
be (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage
and maximum limits of coverage of any insurance policy or proceeds available to the named
insured, whichever is greater.
2.4.5 Acceptability of Insurer. Insurance is to be placed with insurers
with a current A.M. Best’s rating of no less than A: VII, unless otherwise approved by the City.
2.4.6 Verification of Coverage. Developer shall furnish the City with
original endorsements effecting coverage required by this Section 2.6. The endorsements are to
be signed by a person authorized by that insurer to bind coverage on its behalf. The
endorsements are to be on forms provided by the City or on forms equivalent to CG 20 10 11 85
subject to City approval. All insurance certificates and endorsements are to be received and
approved by the City before work commences. At the request of the City, Developer shall
provide complete, certified copies of all required insurance policies, including endorsements
effecting the coverage required by these specifications. Failure on the part of Developer to
procure or maintain required insurance shall constitute a material breach of this Agreement, and
if Developer does not provide evidence of such insurance with ten (10) business days after
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receipt of notice from City, City, at its option, may but is not required to procure or renew such
insurance and pay any and all premiums in connection therewith, and all monies so paid by City
shall be repaid by Developer within thirty (30) days after receipt of demand from City with
supporting documentation.
2.4.7 Vendors. Developer shall require each contractor, subcontractor
and vendor providing services pursuant to Section 2.4 above (collectively, “Vendors”) to procure
and maintain insurance policies subject to the requirements of this Section 2.6. Failure of
Developer to verify existence of Vendor’s insurance shall not relieve Developer from any claim
arising from Vendor’s work on behalf of Developer.
2.5 Assumption of Risk, Waiver, Release and Indemnity.
2.5.1 Developer irrevocably assumes all risks and waives and releases
any and all claims against City resulting or arising directly or indirectly from Developer’s or its
employees, contractors, subcontractors, agents or invitees’ (including members of the public)
access to or use of the City Property in connection with construction and development of the
Project, use and enjoyment of the Parking Improvements, Terrace Improvements (including the
Top Terrace), or performance of any of Developer’s obligations under this Agreement, except to
the extent such claims are caused by the gross negligence or willful misconduct of City or its
elected or appointed officials, officers, employees, agents, contractors, representatives,
volunteers, successors or assigns (collectively including City, the “Indemnified Parties”) or
City’s breach of its obligations under this Agreement. Developer shall indemnify, defend and
hold the Indemnified Parties harmless from any damages, claims, liabilities or losses (including
attorneys’ fees and costs) arising directly or indirectly from Developer’s acts, omissions,
negligence or willful misconduct, including claims for damage to property or injury to or death
of any persons, whether upon the Easement Areas, the City Property, the 220 Park Property, the
“Maintenance Areas” (defined below) or elsewhere under or related to this Agreement, whether
such acts or omissions to act be by Developer, or by any of Developer’s contractors,
subcontractors, or invitees or by any one or more persons employed by, or acting as agent for,
Developer or any of Developer’s contractors or subcontractors, including but not limited to
claims arising from use of the Parking Improvements, Terrace Improvements or Top Terrace by
any person, including but not limited to any member of the public or any tenants or occupants or
visitors of the Project; provided that Developer’s obligation to indemnify and hold harmless (but
not Developer’s duty to defend) shall be limited (and shall not apply) to the extent such claims
are found to arise from the gross negligence or willful misconduct of any of the Indemnified
Parties.
2.5.2 If Developer is obligated to defend an Indemnified Party pursuant
to this Section 2.5, Developer’s counsel shall be subject to approval by City in its reasonable
discretion. If Developer is obligated to defend an Indemnified Party under this Section 2.5,
Developer shall cause its counsel to coordinate and cooperate with the City Attorney and any
City outside counsel in the defense of any such claim and shall keep the City Attorney fully
informed of all developments relevant to such defense and indemnity, with Developer paying all
fees and costs in connection with such claim, including any attorney’s fees City may reasonably
incur.
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2.6 Ownership; Responsibility. Developer acknowledges that the Parking
Easement Improvements and Terrace Improvements constructed by Developer on the City
Property shall be solely the property of City, and neither such improvements nor the Easement
Areas or any other portion of the City Property shall be encumbered or pledged by Developer as
security for any Developer financing. Notwithstanding the above, until such time as this
Agreement expires or is terminated, Developer shall have the same responsibility and liability for
such improvements as though they were owned by Developer, including but not limited to the
indemnity and insurance obligations specified herein.
3.Legal Challenges; Cooperation. In the event of any legal action instituted by a
third party challenging any provision of this Agreement, the procedures leading to its adoption,
or its implementation, the City and Developer agree to affirmatively cooperate in defending said
action and, if necessary, execute a joint defense and confidentiality agreement to share and
protect information under the joint defense privilege recognized under applicable law. As part of
their cooperation in defending an action, City and Developer shall coordinate their defense in
order to make the most efficient use of legal counsel and to share and protect information.
Developer’s obligations to indemnify, defend and hold harmless the Indemnified Parties as
specified in Section 1.6 shall apply as to any legal action described in this Section 3, and shall
include without limitation any awards, judgments, penalties or other monetary payments required
from the Indemnified Parties and any costs or fees, including reasonable attorneys’ fees, incurred
by the Indemnified Parties.
4.Attorney’s Fees and Costs. Developer agrees to pay for the costs and reasonable
attorneys’ fees of City and any outside counsel retained by City to defend it in any court action,
administrative action or other proceeding brought by any third party challenging any provision of
this Agreement, the procedures leading to its adoption, or its implementation. If City elects to
select and employ independent defense counsel, Developer may jointly participate in and
reasonably approve such selection.
5.Amendment. This Agreement may be amended or otherwise modified only in
writing signed and acknowledged by City and Developer, or the successors and assigns of each.
6.Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without reference to choice of law
provisions.
7.Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be entitled to be the original and all of which shall constitute one and the
sane agreement.
8.Notice. Any notice given under this Agreement shall be in writing and given by
(i) delivering the notice in person, (ii) sent by first class, postage prepaid, certified mail (return
receipt requested), or (iii) by Federal Express or other similar courier promising overnight
delivery, addressed shown below in this Section 8. All notices required by this Agreement shall
be deemed given, received, made or communicated (i) if by personal service, on the date
personal receipt actually occurs or, (ii) if mailed or sent by Federal Express or other courier, on
the delivery date or attempted delivery date shown on a return receipt. Notices and
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communications may be sent by email to expedite transmittal of information and responses, but
shall not be deemed given unless and until followed by transmittal by one of the other processes
described in this Section 18. Any party may change the address stated herein by giving notice
thereof to the other party at least ten (10) days prior to the effective date of the address change,
and thereafter notices shall be addressed and transmitted to the new address. Notices and
communications with respect to technical matters in the routine performance and administration
of this Agreement shall be given by or to the appropriate representative of a Party by such means
as may be appropriate to ensure adequate communication of the information, including written
confirmation of such communication where necessary or appropriate. The parties’ addresses for
notices are:
City:City of Burlingame
Attn: Director of Community Development
501 Primrose Road
Burlingame, CA 94010
With a copy to:City Attorney
City of Burlingame
501 Primrose Road
Burlingame, CA 94010
Developer:
and:
220 Park-Burlingame, LLC
c/o Sares-Regis Group of Northern California
901 Mariner’s Island Boulevard, 7th Floor
San Mateo, CA 94404
Attention: Mark Kroll
220 Park-Burlingame, LLC
c/o Dostart Development Company, LLC
145 Addison Avenue
Palo Alto, CA 94301
Attention: Steve Dostart
With a copy to:Holland & Knight
50 California Street, Suite 2800
San Francisco, CA 94111
Attention: Tamsen Plume
9.Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and be binding upon and inure to the benefit of the parties’
respective successors and assigns, including without limitation all grantees and other successors-
in-interest of City in any of the Easement Areas and of Developer in the 220 Park Property.
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10. Representations and Warranties.
10.1 City Representations and Warranties. City represents and warrants to
Developer that, as of the Effective Date:
10.1.1 City is a municipal corporation, and has all necessary powers
under the laws of the State of California to enter into and perform the undertakings and
obligations of City under this Agreement.
10.1.2 The execution and delivery of this Agreement and the performance
of the obligations of City hereunder have been duly authorized by all necessary City Council
action and all necessary approvals have been obtained.
10.1.3 This Agreement is a valid obligation of City and is enforceable in
accordance with its terms.
During the Term of this Agreement, City shall, upon learning of any fact or condition
which would cause any of the warranties and representations in this Section 10.1 not to
be true, immediately give written notice of such fact or condition to Developer.
10.2 Developer Representations and Warranties. Developer represents and
warrants to City that, as of the Effective Date:
10.2.1 Developer and each of the Delaware limited liability companies
comprising Developer is duly organized and validly existing under the laws of the State of
Delaware, and is in good standing and has all necessary powers under the laws of the State of
California to own property interests and in all other respects enter into and perform the
undertakings and obligations of Developer under this Agreement.
10.2.2 The execution and delivery of this Agreement and the performance
of the obligations of Developer hereunder have been duly authorized by all necessary company
action by Developer and each of the Delaware limited liability companies comprising Developer,
and all necessary member approvals have been obtained.
10.2.3 This Agreement is a valid obligation of Developer and is
enforceable in accordance with its terms.
10.2.4 Developer has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Developer’s creditors, (iii) suffered the appointment of a receiver to take possession
of all, or substantially all, of Developer’s assets, (iv) suffered the attachment or other judicial
seizure of all, or substantially all, of Developer’s assets, (v) admitted in writing its inability to
pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to
its creditors generally.
During the Term of this Agreement, Developer shall, upon learning of any fact or
condition which would cause any of the warranties and representations in this Section
10.2 not to be true, immediately give written notice of such fact or condition to City.
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11. No Third Party Beneficiary. No obligation of a party under this Agreement is
enforceable by, or is for the benefit of, any other third parties. The provisions of this Agreement
are for the exclusive benefit of the parties hereto and their respective successors and assigns and
not for the benefit of any third person, nor shall this Agreement be deemed to have conferred any
rights, express or implied, upon any third person.
12. Severability. If any provision of this Agreement shall be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby, and each provision
of this Agreement shall be valid and enforced to the full extent permitted by law, provided the
material provisions of this Agreement can be determined and effectuated.
13. Entire Agreement. This Agreement, together with the Development Agreement
and any attachments hereto or inclusions by reference, constitute the entire agreement between
the parties on the subject matter hereof, and this Agreement supersedes and cancels any and all
previous negotiations, arrangements, agreements and understandings, if any, between the parties
hereto with respect to the easements, licenses and grants of right which are the subject matter of
this Agreement, except for the Development Agreement to the extent it remains in effect. The
provisions in this Agreement shall govern in the event of a conflict with the Development
Agreement.
14. Easements and Covenants to Run with the Land. The conditions set forth in this
Agreement are covenants running with the land and the title to the City Property and the 220
Park Property, and any portions thereof. The Easement Areas shall be burdened by the
Easements created by this Agreement, which burden shall run with the land and shall be binding
on any future owners and encumbrancers of the Easement Areas or any part thereof and their
successors and assigns. In addition, the license to provide public parking as provided in Sections
2.1 above is a covenant running with the land, burdening the 220 Park Property. The Parties
shall have all rights and remedies available at law or equity to protect and enforce the terms of
this Agreement against successors and assigns.
15. Survival. All representations, warranties, waivers, indemnities, duties to defend,
rights of enforcement and rights of compensation or reimbursement given or made hereunder
shall survive expiration or termination of this Agreement.
16. Prevailing Party Attorneys’ Fees.If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of a breach or default in connection
with this Agreement, the prevailing party or parties shall be entitled to recover reasonable
attorneys’ fees and other costs incurred in that action or proceeding, including any appeal, in
addition to any other relief to which it or they may be entitled, and each party stipulates to entry
of a judgment therefor and inclusion thereof. The provisions of this Section 16 shall survive the
entry of any judgment and shall not merge or be deemed to have merged into any judgment.
17. No Liens. Developer has no right under any provision of this Agreement to have
or record any lien against any Easement Areas or any other portion of the City Property, and
shall not allow any such lien. Developer shall promptly pay and discharge all claims for labor
performed, supplies furnished and services rendered, and shall keep the City Property and all
portions thereof free of all mechanics', materialmen's or other liens in connection therewith. If
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any lien is filed, Developer shall cause such lien to be released and removed within ten (10)
business days after the date of filing, and if Developer fails to do so, City may take such action
as may be necessary to remove such lien, without the duty to investigate the validity of it, and
Developer shall promptly reimburse City such amounts as are expended by City to remove the
lien and City’s costs and expenses, including attorneys’ fees, Without limiting the foregoing, the
provisions of this Section 17 shall apply to any lien or other financial encumbrance that may be
recorded or imposed by or arising from use or development of the Project by any tenant or
occupant of the Project, and Developer shall indemnify and defend City regarding any such lien
or encumbrance.
18. Compliance with Laws. Developer at its expense shall fully, diligently and in a
timely manner comply with all applicable laws and regulations now or hereafter in force.
19. Time; Days. Time is of the essence of this Agreement and each and every term
and condition hereof. The word “days” as used in this Agreement refers to calendar days unless
specifically provided otherwise. In the event that any period to perform an obligation or notice
period under this Agreement starts or ends on a Saturday, Sunday, or state or national holiday,
the applicable time period shall be extended to the next regular City business day.
20. Recovery of and Interest on Expenditures. In all situations in which City incurs
expenses as described in this Agreement due to Developer’s failure to perform or failure to pay
or reimburse City, City may impose and enforce a lien on the 222 Park Property and the Project
to recover such expenses, including attorneys’ fees and other costs incurred in that action or
proceeding, including any appeal costs. As part of City recovering such expenses, whether
through such liens, other collection methods or voluntary reimbursement by Developer, City
shall receive interest thereon at the lesser of ten percent (10%) per annum or the maximum rate
permitted by law, compounded annually, from the date of expenditure.
21. Subordination of Financial Encumbrances. All deeds of trust, liens and other
financial encumbrances of any kind on title to the 220 Park Property (collectively “Financial
Encumbrances”) shall be subordinate to the Public Parking and Terrace Improvements access
rights provided by Developer under this Agreement. Developer represents and warrants that as
of the Effective Date of this Agreement, there are no such Financial Encumbrances or all such
prior Financial Encumbrances have been subordinated to this Agreement by a recorded
document in form reasonably acceptable to the City Attorney. As a condition to Developer
agreeing to any such future Financial Encumbrance, Developer shall require the lender to enter
into a subordination agreement in form reasonably acceptable to the City Attorney. Developer
shall not agree to nor permit any Financial Encumbrance without such subordination. City’s fee
interest in the City Property and City’s residual interest in the improvements built by Developer
on the City Property shall not be encumbered or subordinated.
22. Defaults and Remedies.
22.1 Breach and Default. Subject to extensions of time by mutual consent in
writing, failure by a Party to perform any action or covenant or satisfy any obligation required by
this Agreement within thirty (30) days following receipt of written notice from another Party
specifying the failure shall constitute a “Default” under this Agreement; provided, however, that
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if the failure to perform is non-monetary and cannot reasonably be cured within such thirty (30)
day period, a Party shall be allowed additional time as is reasonably necessary to cure the failure
so long as such Party commences to cure the failure within the thirty (30) day period and
thereafter diligently and continuously prosecutes the cure to completion at the earliest practicable
date. Notwithstanding the above notice and cure provisions, if such failure to perform by
Developer or a circumstance regarding the Project in City’s reasonable opinion creates an
emergency, City may but is not obligated to implement a cure and Developer thereafter shall
promptly reimburse City its costs and expenses, including attorney’s fees. In the event of a
Default by Developer, City may at any time during the continuance of such Default give
Developer notice of termination of this Agreement, and upon the date five (5) days after service
of such notice this Agreement shall terminate and thereafter neither party shall have any further
rights or obligations hereunder other than those obligations of Developer which survive such
expiration or termination.
22.2 Resolution of Disputes.
22.2.1 Resolution Prior to Legal Action. With regard to any dispute
involving the Project or this Agreement, the resolution of which is not provided for by this
Agreement or Applicable Laws, prior to instituting legal action a Party shall, at the request of the
other Party, meet with designated representatives of the requesting Party promptly following its
request, which meeting may be continued by mutual consent. The parties to any such meetings
shall attempt in good faith to resolve any such disputes, and by mutual consent may arrange a
third party to mediate the dispute. In the event the Parties are not able to resolve the dispute and
reach an agreement within fourteen (14) days of the request, either Party may initiate legal action
or take such other actions available under this Agreement or the law. Nothing in this Section
22.2.1 shall in any way be interpreted as requiring that Developer and City and/or City’s
designee reach agreement with regard to those matters being addressed, nor shall the outcome of
these meetings be binding in any way on City or Developer unless expressly agreed to in writing
by the parties to such meetings, and the fact of participation in such meetings and any
information provided or oral or written statements made by a Party shall not be admissible or
otherwise used against the Party in any subsequent legal action.. Nothing in this Section 22.2.1
shall require a Party to postpone instituting any injunctive proceeding or to pursue resolution
under this Section 22.2.1 if it believes in good faith that such postponement will cause
irreparable harm to such Party.
22.2.2 Institution of Legal Actions. In addition to any other rights or
remedies, a Party may institute legal action to cure, correct or remedy any Default, to enforce
any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to
obtain any other remedies consistent with the purpose of this Agreement. Any such legal action
shall be brought in the Superior Court for San Mateo County, California, except for actions that
include claims in which the Federal District Court for the Northern District of the State of
California has original jurisdiction, in which case the Northern District of the State of California
shall be the proper venue.
22.2.3 Acceptance of Service of Process. In the event that any legal
action is commenced by Developer against City, service of process on City shall be made by
personal service upon the City Clerk of City or in such other manner as may be provided by law.
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In the event that any legal action is commenced by City against Developer, service of process on
Developer shall be made by personal service upon any person at the location identified as the
address for delivery of tax notices for the 220 Park Property as such address may change from
time to time or in such other manner as may be provided by law.
22.3 Rights and Remedies Are Cumulative. The rights and remedies of the
Parties are cumulative, and the exercise by a Party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by another Party, except as otherwise
expressly provided herein.
22.4 Limitation on Damages. Notwithstanding anything to the contrary herein,
neither Party shall have the right to recover any consequential, special or punitive damages in the
event of a Default by the other Party. In no event shall City or the Indemnified Parties be liable
in damages for any default under this Agreement, it being expressly understood and agreed that
the sole legal remedy available to Developer for a Default by City shall be an action in
mandamus, specific performance or other injunctive or declaratory relief to enforce the
provisions of this Agreement, or to terminate this Agreement. City shall have all remedies
available in law or equity, including but not limited to an action in mandamus, specific
performance or other injunctive or declaratory relief to enforce the provisions of this Agreement,
or to terminate this Agreement if and only when no other remedies are available. In addition,
City shall have the right to seek actual damages from Developer, including but not limited to
enforcing payment of money or the performance of obligations requiring payment of money by
Developer under the terms of this Agreement, including but not limited to Sections 1.5.2, 1.6,
2.4.6, 2.4, 2.6.6, 3, 4, 16, 17, and 20. In connection with the foregoing provisions, each Party
acknowledges, warrants and represents that it has been fully informed with respect to, and
represented by counsel of such Party’s choice in connection with, the rights and remedies of such
Party hereunder and the waivers herein contained, and after such advice and consultation has
presently and actually intended, with full knowledge of such Party’s rights and remedies
otherwise available at law or in equity, to waive and relinquish such rights and remedies to the
extent specified herein, and to rely to the extent herein specified solely on the remedies provided
for herein with respect to any breach of this Agreement by another Party.
22.5 No Waiver. Failure of a Party to enforce a breach or Default by the other
Party, or to complain of any act or omission, no matter how long the same may continue, shall
not be deemed a waiver by said Party of any of its rights hereunder. No waiver by a Party at any
time, express or implied, of any breach or Default of any provision of this Agreement shall be
deemed a waiver of a breach or Default of any other provision of this Agreement or a consent to
any subsequent breach or Default of the same or any other provision. No acceptance of any
partial payment shall constitute an accord or satisfaction but such payment shall only be deemed
a partial payment on account. Subject to any limitations expressly provided herein, a Party’s
exercise of any right or remedy under this Agreement or under applicable law is not exclusive
and shall not preclude such Party from exercising any other right or remedy that may be
available to it by law or equity. The provisions of this Section 22 and the rights and obligations
of the Parties herein shall survive expiration or termination of this Agreement.
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23. Mortgagee Protection.
23.1 Mortgagee Protection. This Agreement shall be superior and senior to any
lien placed upon the Property or any portion thereof after the date of its recording, including the
lien of any deed of trust or mortgage (“Mortgage”). Notwithstanding the foregoing, no breach
hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good
faith and for value, but all of the terms and conditions contained in this Agreement shall be
binding upon and effective against and shall run to the benefit of any person or entity, including
any deed of trust beneficiary or mortgagee (“Mortgagee”), who acquires title or possession to the
Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or
otherwise, subject to the provisions in Section 2.1 of the Development Agreement limiting the
benefits of the Development Agreement and this Agreement to Developer and its successors but
not a separate owner of the Property.
23.2 Mortgagee Not Obligated.
23.2.1 Notwithstanding the provisions of Section 23.1 above, except as
specified in Section 23.2.2, no Mortgagee shall have any obligation or duty under this
Agreement to construct or complete the construction of the Project, or any portion thereof, or to
guarantee such construction or completion; provided, however, that a Mortgagee shall not be
entitled to devote the Property to any use except in full compliance with the Project Approvals
and this Agreement nor to construct any improvements thereon or institute any uses other than
those uses and improvements provided for or authorized by this Agreement and the Project
Approvals.
23.2.2 Any Mortgagee or successor in interest to a Mortgagee that is not
proceeding to construct or complete construction of the Project pursuant to the Project Approvals
and this Agreement, must comply with all federal and state law and permit conditions applicable
to the Project construction and shall not allow or permit a nuisance. The Parties agree that this
Agreement is not intended to allow or authorize a Mortgagee to remain on the City Property for
any longer than would otherwise be allowed by the terms of this Agreement.
23.3 Notice of Default to Mortgagee; Right to Cure. With respect to any
Mortgage granted by Developer as provided herein, then so long as any such Mortgage shall
remain unsatisfied of record, the following provisions shall apply:
23.3.1 City, upon serving Developer any notice of Default, shall also
serve a copy of such notice upon any Mortgagee at the address provided to City, and no notice
by City to Developer hereunder shall affect any rights of a Mortgagee unless and until a copy
thereof has been so served on such Mortgagee; provided, however, that failure so to deliver any
such notice shall in no way affect the validity of the notice sent to Developer as between
Developer and City.
23.3.2 In the event of a Default by Developer, any Mortgagee shall have
the right to remedy, or cause to be remedied, such Default within sixty (60) days following the
later to occur of (i) the date of Mortgagee’s receipt of the notice referred to in Section 23.3.1
above, or (ii) the expiration of the period provided herein for Developer to remedy or cure such
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Default, and City shall accept such performance by or at the insistence of the Mortgagee as if the
same had been timely made by Developer; provided, however, that (a) if such Default is not
capable of being cured within the timeframes set forth in this Section 23.3.2 and Mortgagee
commences to cure the Default within such timeframes, then Mortgagee shall have such
additional time as is required to cure the Default so long as Mortgagee diligently prosecutes the
cure to completion and (b) if possession of the Property (or portion thereof) is required to
effectuate such cure or remedy, the Mortgagee shall be deemed to have timely cured or remedied
if it commences the proceedings necessary to obtain possession thereof within sixty (60) days
after receipt of the copy of the notice, diligently pursues such proceedings to completion, and,
after obtaining possession, diligently completes such cure or remedy.
23.3.3 Any notice or other communication which City shall desire or is
required to give to or serve upon the Mortgagee shall be in writing and shall be served in the
manner set forth in Section 8, addressed to the Mortgagee at the address provided by Mortgagee
to City. Any notice or other communication which Mortgagee shall give to or serve upon City
shall be deemed to have been duly given or served if sent in the manner and at City’s address as
set forth in Section 8, or at such other address as shall be designated by City by notice in writing
given to the Mortgagee in like manner.
23.4 No Supersedure. Nothing in this Section 23 shall be deemed to supersede
or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision or public
improvement agreement, the Development Agreement, temporary access agreement or other
obligation incurred with respect to the Project outside this Agreement, nor shall any provision of
this Section 23 constitute an obligation of City to such Mortgagee, except as to the notice
requirements of Section 23.3.
23.5 Technical Amendments to this Section 23. City agrees to reasonably
consider and approve interpretations and/or technical amendments to the provisions of this
Agreement that are required by lenders for the acquisition and construction of the improvements
on the Property or any refinancing thereof and to otherwise cooperate in good faith with
Developer at Developer’s expense to facilitate Developer’s negotiations with lenders.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first stated above.
CITY:
AUTHORIZED SIGNATURE OF CITY TO AGREEMENT:
CITY OF BURLINGAME, a municipal corporation
organized and existing under the laws of the State
of California
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name: __________________
Its: City Attorney
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DEVELOPER:
220 PARK-BURLINGAME, LLC, a Delaware limited liability company
By: SRGNC MF Park Road, LLC
a Delaware limited liability company
Its: Manager
By: SRGNC MF, LLC,
a Delaware limited liability company
Its: Manager
By: _________________
Its: _________________
By: DDC 220 Park Road Associates, LLC,
a Delaware limited liability company
Its: Member
By:
Name:
Its:
[signatures must be notarized]
A notary public or other officer completing this certificate verifies only the identity of the
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individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF _________________ )
) ss.
COUNTY OF _______________ )
On _______________, 20__, before me, ____________________________________________,
a Notary Public, personally appeared _______________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ___________________
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
Commission Expiration Date [SEAL]
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF _________________ )
) ss.
COUNTY OF _______________ )
On _______________, 20__, before me, ____________________________________________,
a Notary Public, personally appeared _______________________________________________,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ___________________
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
Commission Expiration Date [SEAL]
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 26
OAK #4843-4327-5730 v10
EXHIBIT A-1
LEGAL DESCRIPTION OF THE 220 PARK PROPERTY
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 27
OAK #4843-4327-5730 v10
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 28
OAK #4843-4327-5730 v10
EXHIBIT A-2
DEPICTION OF THE 220 PARK PROPERTY
[Insert prior to execution]
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 29
OAK #4843-4327-5730 v10
EXHIBIT B-1
LEGAL DESCRIPTION OF THE CITY PROPERTY
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
Order Number: NCS-1049664-SC
Page Number: 6
First American Title Insurance Company
LEGAL DESCRIPTION
Real property in the City of Burlingame, County of San Mateo, State of California, described as follows:
PARCEL ONE:
PORTION OF LOTS 8 AND 9, BLOCK 6 AND PORTION OF MIDDLEFIELD ROAD (NOW LORTON AVENUE),
AC DESIGNATED ON THE MAP ENTITLED “SUPPLEMENTARY MAP TO MAP NO. 1. OF THE TOWN OF
BURLINGAME SAN MATEO COUNTY CALIFORNIA,” WHICH MAP WAS FILED IN THE OFFICE OF THE
RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON AUGUST 10, 1905 IN BOOK "B”
OF MAPS AT PAGE 28, AND A COPY ENTERED IN BOOK 3 OF MAPS AT PAGE 71, MORE PARTICULARLY
DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF LORTON AVENUE (FORMERLY
MIDDLEFIELD ROAD), AS SAME NOW EXISTS, DISTANT THEREON 100 FEET SOUTHEASTERLY FROM
THE SOUTHEASTERLY LINE OF BURLINGAME AVENUE, SAID POINT OF BEGINNING BEING THE MOST
NORTHERLY CORNER OF THAT STRIP OF LAND DESCRIBED IN THE QUITCLAIM DEED FROM CITY OF
BURLINGAME, A MUNICIPAL CORPORATION TO CHARLES E. SMALRIDGE, RECORDED MAY 19, 1914 IN
BOOK 238 OF DEEDS AT PAGE 60, RECORDS OF SAN MATEO COUNTY; RUNNING THENCE
SOUTHWESTERLY AND PARALLEL WITH BURLINGAME AVENUE, A DISTANCE OF 150 FEET; THENCE AT
RIGHT ANGLES SOUTHEASTERLY 80 FEET TO THE NORTHWESTERLY LINE OF A 20 FOOT ALLEY;
THENCE AT RIGHT ANGLES NORTHEASTERLY ALONG SAID LINE OF SAID ALLEY 150 FEET TO THE
SOUTHWESTERLY LINE OF LORTON AVENUE, AS SAME NOW EXISTS, BEING THE MOST EASTERLY
CORNER OF THE PROPERTY DESCRIBED IN DEED HEREINABOVE MENTIONED AND THENCE
NORTHWESTERLY ALONG LAST MENTIONED LINE 80 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH ALL THEIR RIGHT, TITLE AND INTEREST, IF ANY, IN AND TO AN ALLEY 10 FEET IN
WIDTH, MORE OR LESS, ADJOINING SAID LAND ON THE NORTHWESTERLY BOUNDARY THEREOF.
PARCEL TWO:
LOT 11 IN BLOCK 6, AS DESIGNATED ON THE MAP ENTITLED "SUPPLEMENTARY MAP TO MAP NO. 1
TOWN OF BURLINGAME SAN MATED COUNTY, CALIFORNIA, WHICH MAP WAS FILED IN THE OFFICE OF
THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, ON AUGUST 10, 1905 IN
BOOK "B" OF MAPS AT PAGE 28, AND A COPY ENTERED IN BOOK 3 OF MAPS AT PAGE 71.
PARCEL THREE:
PORTION OF BLOCK 6, AS DESIGNATED ON THE MAP ENTITLED "SUPPLEMENTARY MAP TO MAP NO, 1
TOWN OF BURLINGAME SAN MATEO COUNTY, CALIFORNIA", WHICH MAP WAS FILED IN THE OFFICE
OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, ON AUGUST 10, 1905 IN
BOOK "B" OF MAPS AT PAGE 28, AND A COPY ENTERED IN BOOK 3 OF MAPS AT PAGE 71, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHEASTERLY LINE OF PARK ROAD, DISTANT THEREON 180 FEET
SOUTHEASTERLY FROM THE INTERSECTION OF SAID LINE OF PARK ROAD WITH THE SOUTHEASTERLY
LINE OF BURLINGAME AVENUE, RUNNING THENCE SOUTHEASTERLY ALONG THE NORTHEASTERLY
LINE OF PARK ROAD, 20 FEET; RUNNING THENCE AT RIGHT ANGLES NORTHEASTERLY AND PARALLEL
WITH THE SOUTHEASTERLY LINE OF BURLINGAME AVENUE, 150 FEET; THENCE AT RIGHT ANGLES
NORTHWESTERLY, 20 FEET; THENCE AT RIGHT ANGLES SOUTHWESTERLY AND PARALLEL WITH THE
SOUTHEASTERLY LINE OF BURLINGAME AVENUE 150 FEET TO THE POINT OF BEGINNING.
PARCEL FOUR:
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
Order Number: NCS-1049664-SC
Page Number: 7
First American Title Insurance Company
PORTION OF LOTS 9 AND 10 IN BLOCK 6, AS DESIGNATED ON THE MAP ENTITLED "SUPPLEMENTARY
MAP TO MAP NO. 1 TOWN OF BURLINGAME SAN MATEO COUNTY, CALIFORNIA", WHICH MAP WAS
FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, ON
AUGUST 10, 1905 IN BOOK "B" OF MAPS AT PAGE 28 AND A COPY ENTERED IN BOOK 3 OF MAPS AT
PAGE 71, MORE PARTICULARLY DESCRIBED AS:
BEGINNING AT A POINT ON THE NORTHEASTERLY LINE OF PARK ROAD, DISTANT THEREON 140 FEET
SOUTHEASTERLY FROM THE SOUTHEASTERLY LINE OF BURLINGAME AVENUE, AS SAID ROAD AND
AVENUE APPEAR ON THE MAP ABOVE MENTIONED; THENCE SOUTHEASTERLY, ALONG S AID
NORTHEASTERLY LINE OF PARK ROAD, 40 FEET TO THE SOUTHEASTERLY LINE OF SAID LOT 10;
THENCE NORTHEASTERLY, ALONG SAID SOUTHEASTERLY LINE OF LOT 10 ARID THE SOUTHEASTERLY
LINE OF LOT 9, 150 FEET: THENCE AT RIGHT ANGLES NORTHWESTERLY AND PARALLEL WITH THE
NORTHEASTERLY LINE OF PARK ROAD, 40 FEET; THENCE AT RIGHT ANGLES SOUTHWESTERLY AND
PARALLEL WITH THE SOUTHEASTERLY LINE OF BURLINGAME AVENUE, 150 FEET TO THE POINT OF
BEGINNING.
PARCEL FIVE:
AN EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS THE FOLLOWING DESCRIBED
PROPERTY:
A PORTION OF LOT 9 IN BLOCK 6, AS DESIGNATED ON THE MAP ENTITLED "MAP NO. 1 OF THE TOWN
OF BURLINGAME", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF
SAN MATEO, STATE OF CALIFORNIA, ON MARCH 15, 1897 IN BOOK "B" OF MAPS AT PAGE 18 AND A
COPY ENTERED IN BOOK 2 OF MAPS AT PAGE 87, DESCRIBED AS:
BEGINNING AT THE MOST NORTHERLY CORNER OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN
THE DEED FROM NONA A. SMALRIDGE, ET AL TO ABRAHAM M, HELLER AND WIFE, RECORDED
SEPTEMBER 29, 1945 UNDER RECORDER'S SERIAL NO. 66318F, WHICH IS ALSO A POINT ON THE
SOUTHWESTERLY LINE OF THE LAND DESCRIBED IN THE DEED FROM CELESTINE S. FLOBEN AND
HUSBAND TO ROBERT STEWART HOWARD, RECORDED OCTOBER 19, 1938 IN BOOK 810 OF OFFICIAL
RECORDS OF SAN MATEO COUNTY AT PAGE 204; THENCE NORTHWESTERLY ALONG SAID
SOUTHWESTERLY LINE 40 FEET TO THE MOST WESTERLY CORNER OR THE LAST MENTIONED PARCEL
OF LAND; THENCE SOUTHWESTERLY AT RIGHT ANGLES AND PARALLEL TO THE SOUTHEASTERLY LINE
OF BURLINGAME AVENUE, 5 FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS
PARCEL B IN THE DEED FROM KENNETH P, ANDERSON AND WIFE, TO CHARLES N. KIRKBRIDE,
RECORDED JANUARY 11, 1933 IN BOOK 582 OF OFFICIAL RECORDS OF SAN MATEO COUNTY AT PATE
362; THENCE CONTINUING SOUTHWESTERLY, PARALLEL TO THE SOUTHEASTERLY LINE OF
BURLINGAME AVENUE AND ALONG THE SOUTHEASTERLY LINE OF THE LAST MENTIONED PARCEL OF
LAND, SOUTH FEET; THENCE SOUTHEASTERLY, PARALLEL TO THE SOUTHWESTERLY LINE OF THE
ABOVE MENTIONED PARCEL OF LAND NOW OR FORMERLY OWNED BY ROBERT STEWART HOWARD, 40
FEET TO A POINT ON THE NORTHWESTERLY LINE OF THE HEREINABOVE MENTIONED PARCEL OF
LAND NOW OR FORMERLY OWNED BY ABRAHAM M. HELLER AND WIFE, THENCE NORTHEASTERLY,
ALONG SAID NORTHWESTERLY LINE, 10 FEET TO THE POINT OF BEGINNING.
APN: 029-204-230
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
Order Number: NCS-1049664-SC
Page Number: 8
First American Title Insurance Company
NOTICE I
Section 12413.1 of the California Insurance Code, effective January 1, 1990, requires that any title insurance company, under written title
company, or controlled escrow company handling funds in an escrow or sub-escrow capacity, wait a specified number of days after depositing
funds, before recording any documents in connection with the transaction or disbursing funds. This statute allows for funds d eposited by wire
transfer to be disbursed the same day as deposit. In the case of cashier's checks or certified checks, funds may be disbursed the next day after
deposit. In order to avoid unnecessary delays of three to seven days, or more, please use wire transfer, cashier's checks, or certified checks
whenever possible.
If you have any questions about the effect of this new law, please contact your local First American Office for more details.
NOTICE II
As of January 1, 1991, if the transaction which is the subject of this report will be a sale, you as a party to the transacti on, may have certain tax
reporting and withholding obligations pursuant to the state law referred to below:
In accordance with Sections 18662 and 18668 of the Revenue and Taxation Code, a buyer may be required to withhold an amount e qual to three
and one-third percent of the sales price in the case of the disposition of California real property interest by eithe r:
1. A seller who is an individual with a last known street address outside of California or when the disbursement instructions au thorize the
proceeds be sent to a financial intermediary of the seller, OR
2. A corporate seller which has no permanent place of business in California.
The buyer may become subject to penalty for failure to withhold an amount equal to the greater of 10 percent of the amount re quired to be
withheld or five hundred dollars ($500).
However, notwithstanding any other provision included in the California statutes referenced above, no buyer will be required to withhold any
amount or be subject to penalty for failure to withhold if:
1. The sales price of the California real property conveyed does not exceed one hundred thousand dolla rs ($100,000), OR
2. The seller executes a written certificate, under the penalty of perjury, certifying that the seller is a resident of Californ ia, or if a
corporation, has a permanent place of business in California, OR
3. The seller, who is an individual, executes a written certificate, under the penalty of perjury, that the California real property being
conveyed is the seller's principal residence (as defined in Section 1034 of the Internal Revenue Code).
The seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding requirement.
The California statutes referenced above include provisions which authorize the Franchise Tax Board to grant reduced withhold ing and waivers
from withholding on a case-by-case basis.
The parties to this transaction should seek an attorney's, accountant's, or other tax specialist's opinion concerning the eff ect of this law on this
transaction and should not act on any statements made or omitted by the escrow or closing o fficer.
The Seller May Request a Waiver by Contacting:
Franchise Tax Board
Withhold at Source Unit
P.O. Box 651
Sacramento, CA 95812-0651
(916) 845-4900
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 30
OAK #4843-4327-5730 v10
EXHIBIT B-2
DEPICTION OF THE CITY PROPERTY
[Insert prior to execution]
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 31
OAK #4843-4327-5730 v10
EXHIBIT C-1
LEGAL DESCRIPTION OF THE CITY EASEMENT AREA
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
Page 1 of 2
BKF ENGINEERS
255 Shoreline Drive, Suite 200, Redwood City, CA 94065 | 650.482.6300
January 27, 2021
BKF No 20191769
LEGAL DESCRIPTION
CITY EASEMENT AREA
All that certain real property situate in the City of Burlingame, County of San Mateo, State of California,
described as follows:
Being a portion of Block 6, Lot 11 as shown on that certain map entitled “Supplementary Map to Map
No.1 of the Town of Burlingame” recorded August 10, 1905 in Volume 3 of Maps at pages 71, San Mateo
County Records, being more particularly described as follows:
Beginning at the common corner of Lot 11 and Lot 12 as shown on said map, also being on the northerly
right of way line of Park Road, and the TRUE POINT OF BEGINNING of this description;
Thence along said right of way line, North 40º07’25” West, 46.22 feet;
Thence leaving said right of way line, North 49º51’18” East, 149.99 feet to the common line of Lot 7 and
Lot 11 as shown on said map;
Thence along said common line, South 40º09’22” East, 46.33 feet to the common corner of Lot 6, Lot 7,
Lot 11 and Lot 12 as shown on said map;
Thence along the common line of said Lot 11 and Lot 12 as shown on said map, South 49º53’43” West,
150.02 feet to the TRUE POINT OF BEGINNING.
Containing 6,942 square feet more or less.
A plat showing the above described parcel is attached hereto and made a part hereof.
This legal description was prepared by me or under my direction in conformance with the requirements
of the Professional Land Surveyors’ Act.
_ 1/27/2021
David C. Jungmann, PLS 9267 Dated
END OF DESCRIPTION
Preliminary
01/27/2021 12:59:54 PM
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
P A R K R O A D(70' ROW - PUBLIC)B U R L I N G A M E A V E N U E(70' ROW - PUBLIC)N40°07'25"W46.22'N49°51'18"E149.99' (150')S40°09'22"E46.33'S49°53'43"W150.02' (150')TPOBCITY EASEMENT AREAAREA = 6942 ± S.F. LEGENDADJACENT LOT LINEEASEMENT BOUNDARY LINECENTER LINEHISTORIC LOT LINES.F.SQUARE FEETTPOBTRUE POINT OF BEGINNINGROWRIGHT OF WAYJob No.SubjectOF255 SHORELINE DR.,SUITE 200REDWOOD CITY, CA 94065(650) 482-6300www.bkf.comBy Chkd. DateP
R
E
L
IM
I
N
A
R
Y
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
CITY EASEMENT AREA CLOSURE
Segment #1 : Line
Course: N40°07'25"W Length: 46.22'
Segment #2 : Line
Course: N49°51'18"E Length: 149.99'
Segment #3 : Line
Course: S40°09'22"E Length: 46.33'
Segment #4 : Line
Course: S49°53'43"W Length: 150.02'
Perimeter: 392.56' Area: 6942 Sq. Ft.
Error Closure: 0.006 Course: S0°47'29"E
Precision 1: 65426.67
Closures for technical review only
Not Intended for
Recordation
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 32
OAK #4843-4327-5730 v10
EXHIBIT C-2
DEPICTION OF THE PARKING IMPROVEMENTS AND INGRESS/EGRESS AREAS
[Draft; review and update prior to execution]
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
Public access areas of
garage and supporting
circulation
Public access area
boundaries are
approximations and
are subject to further
design refinements in
coordination between
the City and the 220
Park project
Exhibit C-2 Depiction of Parking Improvements and Ingress/Egress Areas DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
Public access areas of
garage and supporting
circulation
Public access area
boundaries are
approximations and
are subject to further
design refinements in
coordination between
the City and the 220
Park project
Exhibit C-2 Depiction of Parking Improvements and Ingress/Egress Areas DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
Tentative stalls selectedfor exclusive office useFinalized location ofexclusive office stallsstill to be finalized andsubject to modification.Public access areas ofgarage and supportingcirculationPublic access areaboundaries areapproximations andare subject to furtherdesign refinements incoordination betweenthe City and the 220Park projectExhibit C-2 Depiction of Parking Improvements and Ingress/Egress AreasDocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 33
OAK #4843-4327-5730 v10
EXHIBIT D
DEPICTION OF THE TERRACE IMPROVEMENTS EASEMENT AREA AND
DEVELOPER EXCLUSIVE AREAS
[Draft; review and update prior to execution]
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
PARKING
16 STALLS
(CIVIL ~35.20+/-)VAN35.15
35.15
EVVAN39.50 EV37.3
39.50
0 5'10'
Exhibit D – City Easement Area
Terrace Improvements 01.27.2021
220 Park Property boundary
Top Terrace Exclusive Area
(2303 sf *)
Terrace Improvement
Easement Area
Public access
(4194 sf *)
Culvert
Extent of garage below
ADA Ramp Exclusive Area
(403 sf *)
220 Park Rd
Property
City’s Lot E
*Boundaries and square footages are approximations and are subject
to further design refinements from ongoing design coordination and
development between the City and 220 Park project.
Exhibit D – City Easement Area Terrace ImprovementsDocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E
EXHIBIT D, PAGE 34
OAK #4843-4327-5730 v10
EXHIBIT E
TERRACE IMPROVEMENTS CONCEPT DESIGN
[Insert concept design when approved prior to execution and recordation.]
DocuSign Envelope ID: 6DAADA1D-9380-4C9E-BC43-58B1AFAD798E