HomeMy WebLinkAboutOrd 20271
ORDINANCE NO 2027
AN ORDINANCE OF THE CITY OF BURLINGAME ADOPTING A
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF
BURLINGAME AND DW BURLINGAME I OWNER LLC, DW BURLINGAME II
OWNER LLC, BURLINGAME II OWNER A LLC, BURLINGAME II OWNER B
LLC, AND DW BURLINGAME III OWNER LLC, RELATED TO THE
DEVELOPMENT PROJECT AT 1200-1340 OLD BAYSHORE HIGHWAY
WHEREAS, on March 24, 2022 DW Burlingame I Owner LLC, DW Burlingame II Owner
LLC, DW Burlingame II Owner A LLC, DW Burlingame II Owner B LLC, and DW Burlingame III
Owner LLC (collectively, “Developer”) filed an application with the City of Burlingame Community
Development Department – Planning Division requesting approval of a development project
located at 1200-1340 Old Bayshore Highway and consisting generally of three, 11-story
office/research & development buildings and two, 10-10.5-story parking structures, which
applications included requests for Environmental Review (and associated Water Supply
Assessment), Commercial Design Review, Special Permits for Building Heights and Development
under Tier 3/Community Benefits, and a Vesting Tentative Map (collectively, the “Final EIR” and
the “Project Approvals”); and
WHEREAS, on January 17, 2023, the Developer submitted an application for a
Development Agreement per Municipal Code Chapter 25.104 and California Government Code
section 65864 et seq. (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, on February 13, 2023, in conjunction with the Design Review Study meeting,
the Planning Commission held a pre-application study session on the Development Agreement
application pursuant to Burlingame Municipal Code Section 25.104.040; and
WHEREAS, City staff and Developer have negotiated proposed terms for a development
agreement for the 1200-1340 Old Bayshore Highway Project (the “Development Agreement”),
attached hereto as Attachment 1; and
WHEREAS, the Development Agreement, among other things, sets forth the effective date
and term of the agreement; applicable fees; applicable rules, regulations and policies; required
infrastructure improvements; provisions governing amendments, annual review, and default; and
other miscellaneous provisions; and
WHEREAS, on March 11, 2024, and as required by the Development Agreement Statute
and the Burlingame Municipal Code, the Planning Commission conducted a duly noticed public
hearing to consider the Final EIR and the Project Approvals and the Development Agreement and
recommended that the City Council certify the Final EIR, approve the Project Approvals, and
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approve an ordinance adopting the Development Agreement; and
WHEREAS, at its regular meeting of April 1, 2024, the Burlingame City Council conducted
a duly noticed public hearing to consider the Planning Commission’s recommendations on the
Final EIR, Project Approvals, and the Development Agreement; and
WHEREAS, at that regular meeting of April 1, 2024, the Burlingame City Council certified
the Final EIR (Resolution 043-2024), approved the Project Approvals (Resolution
044-2024), and introduced and adopted the first reading of this Ordinance No. 2027 adopting the
Development Agreement; and
WHEREAS, at its regular meeting of April 15, 2024 the Burlingame City Council adopted
this Ordinance No. 2027 adopting the Development Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME DOES
ORDAIN AS FOLLOWS:
Section 1. The recitals set forth above are true and correct, and are hereby incorporated
herein by this reference as if fully set forth in their entirety.
Section 2. The City Council hereby finds that the proposed Ordinance is in the public
interest.
Section 3. The Final EIR was properly certified by the City Council pursuant to Resolution
043-2024, which Final EIR evaluated any and all potential environmental effects caused by
adoption of the Development Agreement and the Project Approvals. The Final EIR concluded
that the Project would not cause any significant and unavoidable impacts and that all other
impacts could be mitigated to less than significant levels through implementation of identified
mitigation measures.
Section 4. That based on the recitals set forth above, the staff reports for the Project
Approvals, the FEIR (including the Mitigation Monitoring and Reporting Program and all
appendices), the CEQA Findings, and all other documents, reports, studies, memoranda, maps,
oral and written testimony, and materials in the City’s file for the Project Approvals; and all
adopted City planning documents relating to the Project including the City’s General Plan and
Municipal Code and all other applicable City laws and regulations (collectively, the “Record”), 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 with the Special Permits for
building height and Development under Tier 3/Community Benefits.
2. The Development Agreement is consistent with the uses authorized in and the
regulations prescribed for the BFC (Bayfront Commercial) zoning district in which
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the property is located, with Special Permits for building height and Development
under Tier 3/Community Benefits.
3. The Development Agreement is in conformity with public convenience, general
welfare and good land use practices.
4. The Development Agreement will not be detrimental to the health, safety and
general welfare of the City or the region surrounding the City.
5. The Development Agreement will not adversely affect the orderly development of
property or the preservation of property values within the City.
6. The Development Agreement will promote and encourage the development of the
project by providing a greater degree of certainty with respect thereto.
7. The Development Agreement will result in the provision of public benefits,
including, but not limited to, a public plaza; publicly accessible park space; cultural,
arts and events spaces; commuter shuttle; sea level rise infrastructure; public
parking; and a $3,500,000 contribution towards the City’s Broadway Grade
Separation Project.
Section 5. The City Council hereby approves and adopts the Development Agreement
attached hereto as Attachment 1 and authorizes and directs the City Manager to execute it in
substantially the form attached hereto as Attachment 1, 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, and take such actions as are necessary to
consummate the transactions provided for in the Development Agreement.
Section 6. If 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
irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases
be declared unconstitutional.
Section 7. This Ordinance shall go into effect 30 days following its adoption.
law.
Section 8. The City Clerk is directed to publish this Ordinance in a manner required by
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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Donna Colson, Mayor
I, 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 1st
of April 2024 and adopted thereafter at a regular meeting of the City Council held on the 15th
day of 2024 by the following votes:
AYES:
NOES:
RECUSE:
COUNCILMEMBERS: BROWNRIGG, COLSON, ORTIZ, STEVENSON
COUNCILMEMBERS: NONE
COUNCILMEMBERS: BEACH
ATTEST:
Meaghan Hassel - Shearer, City Clerk
Attachment 1: Development Agreement
Exhibit A - Property Map
Exhibit B - Legal Description of Property
Exhibit C - Pre-Vesting Tentative Map Property Ownership
Exhibit D - Post-Vesting Tentative Map Property Ownership
Exhibit E - Temporary and Final Bay Trail Improvements
Exhibit F - Map of Community Benefits
Exhibit G - Impact Fees
Exhibit H - Annual Review Form
Exhibit I - Form of Assignment and Assumption
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DRAFT
018790.0001 4873-6748-2271.5
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Burlingame
501 Primrose Road
Burlingame, CA 94010
Attention: City Clerk
Space Above This Line Reserved for Recorder’s Use
Exempt from Recording Fee Per Government Code Section 27383
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF BURLINGAME,
a municipal corporation
AND
DW BURLINGAME I OWNER, LLC; DW BURLINGAME II OWNER, LLC; DW
BURLINGAME II OWNER A, LLC; DW BURLINGAME II OWNER B, LLC and DW
BURLINGAME III OWNER, LLC
Adopted by Ordinance No. ________
Effective Date: _______________, 2024
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TABLE OF CONTENTS
Page
LIST OF EXHIBITS ...................................................................................................................... iv
DEVELOPMENT AGREEMENT ................................................................................................14
RECITALS ....................................................................................................................................14
AGREEMENT .................................................................................................................................4
ARTICLE 1. GENERAL PROVISIONS .................................................................................4
Section 1.1 Property Subject to the Agreement. .............................................................4
Section 1.2. Developers ...................................................................................................4
ARTICLE 2. PUBLIC BENEFITS ...........................................................................................5
Section 2.1 Public Benefits Obligations .........................................................................5
Section 2.2 Developers’ Financial Contribution to City’s Broadway Grade
Separation Project ........................................................................................5
Section 2.3 Developers Transportation Improvements and Contributions .....................5
Section 2.4 Other Public Improvements .........................................................................6
Section 2.5 Sales Tax Point of Sale Designation ............................................................7
Section 2.6 City of Burlingame Business License ..........................................................8
ARTICLE 3. EFFECTIVE DATE AND TERM ......................................................................8
Section 3.1 Effective Date ..............................................................................................8
Section 3.2 Term .............................................................................................................8
Section 3.3 City Representative and Warranties...........................................................10
Section 3.4 Developers Representations and Warranties .............................................10
ARTICLE 4. DEVELOPMENT OF PROPERTY..................................................................11
Section 4.1 Definitions..................................................................................................11
Section 4.2 Vested Rights of Developer .......................................................................13
Section 4.3 Reservations of City Authority ..................................................................13
Section 4.4 Regulation by Other Public Agencies ........................................................13
Section 4.5 Life of Project Approvals; Vesting Tentative Subdivision Map ...............14
Section 4.6 Initiatives....................................................................................................14
Section 4.7 Timing of Development .............................................................................14
Section 4.8 Changes in the Law ....................................................................................15
Section 4.9 Conditions of Subsequent Approvals.........................................................15
Section 4.10 Sets of Project Approvals...........................................................................15
ARTICLE 5. FEES, TAXES, AND ASSESSEMENTS.........................................................15
Section 5.1 Developer Impact Fees ..............................................................................15
Section 5.2 Taxes and Assessments ..............................................................................17
Section 5.3 MMRP Fair Share Contributions ...............................................................17
ARTICLE 6. ANNUAL REVIEW .........................................................................................18
Section 6.1 Period Review ............................................................................................18
ARTICLE 7. MORTGAGE PROTECTION ..........................................................................19
Section 7.1 Mortgagee Protection .................................................................................19
Section 7.2 Mortgagee Not Obligated ..........................................................................19
Section 7.3 Notice of Default to Mortgagee; Right to Cure .........................................19
Section 7.4 No Supersedure ..........................................................................................20
Section 7.5 Technical Amendments to this Article 7 ...................................................21
TABLE OF CONTENTS
(continued)
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ARTICLE 8. AMENDMENT OF AGREEMENT OR PROJECT APPROVALS ................21
Section 8.1 Amendment of Agreement by Mutual Consent .........................................21
Section 8.2 Definitions of Minor Amendments ............................................................21
Section 8.3 Minor Amendments to the Agreement ......................................................21
Section 8.4 Major Amendment .....................................................................................22
Section 8.5 Requirement in Writing .............................................................................22
Section 8.6 Amendments to Development Agreement Law .........................................22
Section 8.7 Amendments to Project Approvals ............................................................22
Section 8.8 Amendments and CEQA/Mitigation Measures .........................................23
ARTICLE 9. SUBSEQUENT APPROVALS AND IMPLEMENTATION ..........................23
Section 9.1 Subsequent Approvals ...............................................................................23
Section 9.2 Scope of Review of Subsequent Approvals ...............................................24
Section 9.3 Processing Applications for Subsequent Approvals ..................................24
Section 9.4 Other Agency Subsequent Approvals; Authority of City ..........................25
Section 9.5 Cooperation in the Event of Legal Challenge ............................................25
Section 9.6 Revision of Project .....................................................................................26
Section 9.7 State, Federal or Case Law ........................................................................26
Section 9.8 Defense of Agreement ...............................................................................26
ARTICLE 10. ASSIGNMENT, TRANSFER AND NOTICE ...............................................27
Section 10.1 Transfer and Assignments..........................................................................27
Section 10.2 Release upon Transfer................................................................................28
ARTICLE 11. DEFAULT; REMEDIES; TERMINATION ..................................................29
Section 11.1 Breach and Default ....................................................................................29
Section 11.2 Termination ................................................................................................29
Section 11.3 Legal Actions .............................................................................................30
Section 11.4 Rights and Remedies Are Cumulative .......................................................30
Section 11.5 No Damages ...............................................................................................30
Section 11.6 Resolution of Disputes ...............................................................................31
Section 11.7 Surviving Provisions ..................................................................................31
Section 11.8 California Claims Action ...........................................................................31
ARTICLE 12. INSURANCE AND INDEMNITY ................................................................31
Section 12.1 Insurance Requirements .............................................................................31
Section 12.2 Indemnification ..........................................................................................32
ARTICLE 13. MISCELLANEOUS PROVISIONS ...............................................................32
Section 13.1 Incorporation of Recitals, Exhibits, and Introductory Paragraph ..............32
Section 13.2 Severability ................................................................................................32
Section 13.3 Construction ...............................................................................................32
Section 13.4 Covenants Running with the Land .............................................................33
Section 13.5 Notices .......................................................................................................33
Section 13.6 Counterparts and Exhibits; Entire Agreement ...........................................34
Section 13.7 Recordation of Agreement .........................................................................34
Section 13.8 No Joint Venture or Partnership ................................................................34
Section 13.9 Waivers ......................................................................................................34
TABLE OF CONTENTS
(continued)
Page
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Section 13.10 City Approvals and Actions .......................................................................35
Section 13.11 Estoppel Certificates ..................................................................................35
Section 13.12 No Third Party Beneficiaries .....................................................................35
Section 13.13 Further Actions and Instruments ................................................................35
Section 13.14 Limitation on Liability ...............................................................................35
iv
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LIST OF EXHIBITS:
Exhibit A Property Map
Exhibit B Legal Description of Property
Exhibit C Pre-Vesting Tentative Map Property Ownership
Exhibit D Post-Vesting Tentative Map Property Ownership
Exhibit E Temporary and Final Bay Trail Improvements
Exhibit F Map of Community Benefits
Exhibit G Impact Fees
Exhibit H Annual Review From
Exhibit I Form of Assignment and Assumption
018790.0001 4873-6748-2271.5 1
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (“Agreement”) dated for reference purposes as of
___________, 2024 (“Agreement Date”), is entered into by and between DW Burlingame I
Owner, LLC (“DW I”), a Delaware limited liability company; DW Burlingame II Owner, LLC, a
Delaware limited liability company (“DW II”); DW Burlingame II Owner A, LLC, a Delaware
limited liability company (“DW II A”); DW Burlingame II Owner B, LLC, a Delaware limited
liability company (“DW II B”); and DW Burlingame III Owner, LLC, a Delaware limited liability
company (“DW III” and together with DW I, DW II, DW II A and DW II B “Developers”) and
the CITY OF BURLINGAME, a municipal corporation (“City”). Developers and City are
sometimes referred to individually herein as a “Party” and collectively as “Parties.”
RECITALS
This Agreement is entered into on the basis of the following facts, understandings and
intentions of the Parties, and the following recitals are a substantive part of this Agreement and
incorporated herein; terms are defined throughout this Agreement as indicated in bold language.
A. Developers currently have a legal and/or equitable interest in approximately 12
acres of real property located at 1200-1340 Old Bayshore Highway in Burlingame, California,
depicted on Exhibit A (the “Property Map”) and more particularly described in Exhibit B
(“Property”). The Property is bounded to the south by Airport Boulevard, to the east by the San
Francisco Bay, to the north by office buildings and surface parking lots, and to the west by Old
Bayshore Highway. Easton Creek runs west to east to the Bay through the center of the Project
site. The Property is currently occupied by a mix of office, restaurant, and retail buildings, a
Holiday Inn Express, and surface parking lots. The Bay Trail terminates at the south end of the
Property and resumes on the north end.
B. There are eight existing, one- to three-story buildings on the Property totaling
247,466 square feet. Developers propose to redevelop the Property with three new 11-story office
or research and development (“R&D”) buildings (the “North Building,” “Center Building,” and
South Building” [collectively, the “Buildings” or individually, a “Building”]) and two new 10-
10.5-story parking garages (the “Northern Parking Structure” and the “Southern Parking
Structure” [together, the “Parking Structures” or individually, a “Parking Structure”)]) with
two below grade parking levels each. Two of the five new structures, the Northern Parking
Structure and North Building, would be on the portion of the site north of Easton Creek. On the
south side of the creek are the Center Building, Southern Parking Structure and South Building.
Three service roads off Old Bayshore Highway are proposed for access to the buildings and
parking structures, one between the Northern Parking Structure and North Building, a second
between the Center Building and Southern Parking Structure, and the third between the Southern
Parking Structure and South Building. Other improvements include sea level rise infrastructure, a
new Bay Trail along the shoreline, parks and plazas and other public amenities and infrastructure.
Collectively, these improvements are the “Project.”
C. In order to strengthen the public planning process, encourage private participation
in comprehensive planning and reduce the economic costs and risks of development, the
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Legislature of the State of California enacted Government Code Section 65864 et seq.
(“Development Agreement Law”), 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 and obligations pertaining to real property.
D. Developers desire to construct the Project in three phases. The order and timing of
the phasing has not been determined, but the three phases will consist of the following: the North
Building and Northern Parking Structure (“Northern Phase”), the Center Building and Southern
Parking Structure, (“Center Phase”), and the South Building (“Southern Phase”). The Northern
Phase, Center Phase, and Southern Phase are collectively referred to as “Phases” and any one is a
“Phase.” Each Phase also includes site preparation (demolition of any existing structures and
grading) and site finishing, including any related community benefits.
E. Prior to or concurrently with the approval of this Agreement, City has taken
numerous actions in connection with the development of the Project on the Property and has
determined that the Project complies with the policies set forth in the General Plan. These actions
include:
1. Certification of an environmental impact report prepared for the Project (the
“EIR”);
2. Design Review permit approval;
3. Vesting Tentative Subdivision Map approval;
4. Approval of Special Permit for height above 65 feet and Tier 3 increased FAR;
and
5. Tree removal permit approval.
The approvals described in this Recital are collectively referred to herein as the “Project
Approvals.”
F. As of the Agreement Date, the ownership of each Phase is as follows: the Northern
Phase is owned by DW I; the Center Phase is owned by DW II, DW II A and DW II B; and the
Southern Phase is owned by DW III. Prior to recording the final map, DW II A and DW II B,
which are wholly owned subsidiaries of DW II, will transfer fee title in their respective Center
Phase parcels to DW II. After such transfers, DW II A and DW II B will have no property interest
in the Property. Exhibit C shows the parcels and ownership as they exist on the Agreement Date
(“Pre-VTM Property”) and Exhibit D shows the future parcels and ownership as they will exist
after the final map is recorded (“Post-VTM Property”).
G. Consistent with the Project Approvals, the parties anticipate that during the Term
of this Agreement and subsequent to the Effective Date, as defined in Section 3.1 below,
Developers shall seek from the City certain subsequent land use approvals, entitlements, and
permits as will be necessary or desirable for implementation of the Project, collectively referred to
as “Subsequent Approvals,” and as more particularly described in Article 9 of this Agreement.
When any Subsequent Approval applicable to the Property is approved by the City, then such
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Subsequent Approval shall become subject to all of the terms and conditions of this Agreement
applicable to the Project Approvals and shall be treated as part of the Project Approvals, as defined
in Recital E above.
H. City has determined that by entering into this Agreement, City will further the
purposes set forth in the Development Agreement Law by, among other things, ensuring that the
Project will provide substantial community benefits, as described below:
1. Development of a public plaza at the corner of Airport Boulevard and Old
Bayshore Highway. The plaza will include terraced seating along the tidal salt marsh and
a space for public events.
2. Developers will construct sea level rise (“SLR”) infrastructure. Developers will
raise the shoreline, Bay Trail and adjacent park-like areas to a minimum elevation of 17
feet and provide infrastructure for flood protection along Easton Creek up to an elevation
of no less than 16 feet and erosion protection up to 14 feet. Developers will build finished
floors at an elevation of no less than 16 feet. These measures are intended to provide flood
resilience through the end of the century per the City Council-adopted “Map of Future
Conditions.”
3. Developers will install story boards along construction sites, subsequent phases
and the Bay Trail when in a temporary condition, describing the Project generally,
anticipated completion dates, and specifically the Developer-funded SLR infrastructure
and Bay Trail construction timing.
4. Developers will install landscaping on both the northern and southern sides of
Easton Creek within the Project site as part of the first Phase, unless the first Phase consists
of the Southern Phase, in which case such landscaping shall be installed as part of the next
phase.
5. Developers will provide a shuttle service along Old Bayshore Highway for the
life of the Project.
6. Developers will install improvements along Old Bayshore Highway to
accommodate layby drop-offs for buses and shuttles, including two shuttle stops adjacent
to the Project site.
7. Developers will contribute $3,500,000.00 dollars to the City’s Broadway Grade
Separation Project.
8. Developers will provide approximately 5.5 acres of publicly-accessible open
space, including a nature play/discovery area, shoreline exploration area, outdoor fitness
area, public restrooms and seating, bike share, a bike repair stand, drinking fountains, and
blue light emergency phones.
9. Developers will provide the following cultural arts and community spaces:
a. An amphitheater seating area along the Bay Trail at the southern portion
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of the Project site that will support gathering and performance areas;
b. Interpretive/historical/educational signage, public art, and event
infrastructure along the Bay Trail and other public areas; and
c. A public airplane viewing platform at the top level of the Southern
Parking Structure.
I. A primary purpose of this Agreement is to assure that the Project can proceed
without disruption caused by a change in City’s planning policies and requirements following the
Project Approvals and to ensure that the community benefits Developers commit to delivering in
connection with the development of the Project are timely delivered. 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 Development Agreement Law and the goals, policies, standards, and land
use designations specified in City’s General Plan 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.
J. For the reasons recited herein, City and Developers have determined that the Project
is a development for which this Agreement is appropriate. This Agreement will eliminate
uncertainty regarding Project Approvals, thereby encouraging planning for, investment in, and
commitment to use and development of the Property. Continued use and development of the
Property will in turn provide substantial employment, tax, and other public benefits to City.
K. On March 11, 2024, the Planning Commission, the initial hearing body for purposes
of development agreement review, considered this Agreement and made a recommendation for
approval to the City Council. On ___________, 2024, the City Council adopted Ordinance No.
_______ approving this Agreement (the “Enacting Ordinance”), which was introduced on
___________, 2024.
NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth
herein, the receipt and adequacy of which consideration is acknowledged, Developers and the City
agree as follows:
AGREEMENT
ARTICLE 1. GENERAL PROVISIONS
Section 1.1 Property Subject to the Agreement. All of the Property shall be subject to
this Agreement. The Parties hereby acknowledge that, as of the Effective Date, Developers have a
legal and/or equitable interest in the Property. Developers further agree that all persons holding
legal or equitable title in the Property shall be bound by this Agreement.
Section 1.2 Developers. The Developers are currently affiliated entities and
collectively own the entire Property. As of the Effective Date, Developers currently own the
Property as described and depicted on Exhibit C. Each individual Developer shall be solely
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responsible to the City for the performance of the obligations under this Agreement as it relates
specifically to such Developer’s Property, unless otherwise described herein.
ARTICLE 2. PUBLIC BENEFITS
Section 2.1 Public Benefits Obligations. In consideration of the rights and benefits
conferred by City to Developers under this Agreement, Developers shall perform and provide the
specific public benefits described in the Project Approvals and in this Article 2 (the “Public
Benefits”), some of which may exceed the dedications, conditions, and exactions that City may
impose under Applicable City Regulations, as defined in Section 4.1.A below.
Section 2.2 Developers’ Financial Contribution to City’s Broadway Grade Separation
Project.
A. Developers collectively shall pay City a total of $3,500,000.00 (the
“Developer Grade Separation Contribution”) which City shall use to fund its proposed
Broadway Grade Separation Project (currently described as City Project No. 82540).
B. The Developer Grade Separation Contribution is due in three
installments. The first installment shall be in the amount of $1,500,000.00 and paid prior to
issuance of the first building permit for the first Building. The subsequent installments shall each
be in the amount of $1,000,000 and paid prior to the issuance of the first certificate of occupancy
for each of the second and third Buildings. The Developer owning the Property upon which a
particular Project Building is constructed shall be responsible for the payment of the required
installment. For example, if the Northern Phase begins construction first, the owner of that
Property would be responsible for the first installment of $1,500,000.00. Thereafter, the owner(s)
of the Center Phase and the Southern Phase would each be responsible for the other two
installments of $1,000,000.00.
Section 2.3 Developer Transportation Improvements and Contributions.
A. Developers shall enter into an agreement with a shuttle service
provider (currently anticipated to be the Commute.org joint powers authority) to fund the shuttle
service provider’s establishment and maintenance of shuttle service along Old Bayshore Highway
as necessary to maintain 15-minute headways or better during the weekday peak commute periods
for the life of the Project. Developers must also install and maintain shuttle stop signage and stop
improvements for two shuttle stops which support public drop-off, pick-up, loading, car share
access, and fire department apparatus use. The shuttle stops must include at least one stop in the
plaza of the South Building and one stop along Easton Creek. Developers’ obligations under this
Section 2.3.B to enter into such agreement with a shuttle service provider, make the first payment
to the shuttle service provider, and install the shuttle stop along Easton Creek must be met prior to
occupancy of any Building in the first Phase. The shuttle stop in the plaza of the South Building
must be completed prior to occupancy of the South Building. Developers understand and agree
that the shuttle service obligations under this Section 2.3.B are intended to provide shuttle service
for the life of the Project.
B. Developers shall install improvements along Old Bayshore Highway to
accommodate layby drop-offs for buses and shuttles.
018790.0001 4873-6748-2271.5 6
Section 2.4 Other Public Improvements.
A. For purposes of this Section 2.5, "Finally Granted" shall mean that
(i) any and all applicable appeal periods for the filing of any administrative or judicial appeal
challenging the issuance or effectiveness of any of the Project Approvals, this Agreement, or the
EIR shall have expired and no such appeal shall have been filed, or if such an administrative or
judicial appeal is filed, the Project Approvals, this Agreement, or the EIR, as applicable, shall have
been upheld by a final decision in each such appeal and the entry of a final judgment, order or
ruling upholding the applicable Project Approvals, this Agreement, or the EIR and (ii) if a
referendum petition relating to this Agreement is timely and duly circulated and filed, certified as
valid and the City holds an election, the date the election results on the ballot measure are certified
in the manner provided by the Elections Code reflecting the final defeat or rejection of the
referendum.
B. Early Delivery of Bay Trail. Within three (3) years of all of the
Project Approvals being Finally Granted (“Early Bay Trail Deadline”), including but not limited
to any approvals required by third party agencies, Developers shall construct the Bay Trail in
temporary condition along the border of Project site fronting the Bay, except along Easton Creek,
where the temporary trail may parallel rather than cross the creek, generally in the location depicted
in Exhibit E (“Temporary Bay Trail”). No fewer than one (1) bench and one (1) garbage can
shall be installed within the Project site near the Temporary Bay Trail’s northern and southern
entrances. If the certificate of occupancy of any Building is received prior to the Early Bay Trail
Deadline, then the Bay Trail shall be provided in final condition for that Phase (generally in the
location depicted in Exhibit E) that includes the completed Building and in temporary condition
for the other phases. Further, the bridge over Easton Creek shall be constructed if the first Phase
includes the North Building or Center Building, but not if the first Phase includes the South
Building. Finally, notwithstanding the Parties’ understanding that each Developer is responsible
for obligations under this Agreement related to the portions of the Property that each Developer
owns as described in Section 1.2, installation of the Temporary Bay Trail by the Early Bay Trail
Deadline must be met in accordance with this section 2.4.B and any and all Developers will be
jointly and severally liable for meeting such obligation.
C. Public Plaza. Prior to the certificate of occupancy of the Phase
including the South Building, the Developer shall construct a public plaza at the corner of
Airport Boulevard and Old Bayshore Highway, generally in the location depicted in Exhibit F.
D. Sea Level Rise Infrastructure. The SLR infrastructure shall raise the
shoreline, Bay Trail and adjacent park-like areas to a minimum elevation of 17 feet and providing
infrastructure for flood protection along Easton Creek up to an elevation of 16 feet and erosion
protection up to 14 feet. Building finished floors will be at an elevation of 16 feet. The SLR
infrastructure will be integrated into each Phase of the Project and constructed concurrently with
each Phase of the Project.
E. Story Boards. Story boards shall be installed along the perimeter of
the Project site that is in a temporary condition, including along construction sites, subsequent
Phases and the Bay Trail when in a temporary condition, describing the Project generally, and
specifically the Developer-funded SLR infrastructure and Bay Trail.
018790.0001 4873-6748-2271.5 7
F. Easton Creek Landscaping. Install improvements and landscaping
on both the northern and southern sides of Easton Creek within the Project site as part of the first
Phase, unless the first Phase consists of the Southern Phase, in which case such landscaping shall
be installed as part of the next Phase. Location and type of proposed improvements and
landscaping are shown on Exhibit F, but the Public Works Director shall review and approve such
improvements and landscaping prior to installation.
G. Publicly-Accessible Open Space. The Project shall include
approximately 5.5 acres of publicly accessible open space, including a nature play/discovery area,
shoreline exploration area, outdoor fitness area, public art, public restrooms and seating, bike share
(provided that a bike share service provider is available), a bike repair stand, drinking fountains,
and blue light emergency phones, each as generally and conceptually depicted in Exhibit F. Final
locations and specific details of the improvements shown on Exhibit F within the publicly
accessible open space shall be reviewed and approved by the Community Development Director
prior to issuance of the building permit for the first Building for each Phase.
H. Southern Amphitheater. The Phase that includes the Southern
Building shall include an amphitheater seating area along the Bay Trail at the southern portion of
the Project site that will support gathering and performance areas, generally as depicted in Exhibit
F.
I. Interpretative Signage. The Bay Trail and other public areas shall
include interpretive and educational signage.
J. Public Airplane Viewing Platform. The Southern Parking Structure
shall include an airplane viewing platform at the top level that is open to the public.
K. Public Parking Spaces. 40 of the parking stalls on Level 1 in the
South Parking Structure will be public stalls dedicated to the proposed restaurant/café use and Bay
Trail users (“Permanent Public Stalls”) and no fewer than an additional 210 parking stalls will be
provided for public use on weekday evenings, and weekends and state holidays (“Additional
Public Stalls”). All public stalls will be provided in the Southern Parking Structure. The
Permanent Public Stalls will be open to the public from 6:00 am to 10:00 pm seven days per week.
The Additional Public Stalls will be open to the public from 6:00 pm to 10:00 pm Monday through
Friday and from 6:00 am to 10:00 pm on Saturdays and Sundays and on any day on which the
office of the Secretary of State of California is closed as a legal holiday.
Section 2.5 Sales Tax Point of Sale Designation. Developers shall use good faith and
commercially reasonable efforts to require all persons and entities providing bulk lumber,
concrete, structural steel and pre-fabricated building components, such as roof trusses, used in
connection with the construction and development of, or incorporated into, the Project, 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 the City instead of through the County-
wide pool, all to the extent allowed by law. Developers shall instruct, in writing, each of its general
contractors to cooperate with the City to ensure the full local sales/use tax is allocated to City. To
018790.0001 4873-6748-2271.5 8
assist City in its efforts to ensure that the full amount of such local sales/use tax is allocated to the
City of Burlingame, Developers shall instruct their respective general contractors to provide City
with an annual spreadsheet, which includes a list of all subcontractors with contracts in excess of
the amount set forth above, a description of all applicable work, and the dollar value of such
subcontracts. City may use said spreadsheet sheet to contact each subcontractor who may qualify
for local allocation of use taxes to the City. Notwithstanding any of the foregoing, Developers are
obligated to instruct their general contractors cooperate with the City and provide the annual
spreadsheets. The terms of this Section 2.6 shall only apply to the construction of the Buildings
and the Parking Structures and shall not apply to any subsequently performed tenant improvement
work within a Building.
Section 2.6 City of Burlingame Business License. Developers, at their expense, shall
obtain and maintain a City of Burlingame business license at all times during the Term, and shall
include a provision in all general contractor agreements for the Project requiring each such general
contractor to obtain and maintain a City of Burlingame business license during performance of the
work of construction.
ARTICLE 3. EFFECTIVE DATE AND TERM
Section 3.1 Effective Date. This Agreement shall become effective thirty (30) days
after the date that the Enacting Ordinance is adopted by the City Council (the “Effective Date”).
Section 3.2 Term. The Term has been established by the Parties as a reasonable
estimate of the time required to carry out and develop the Project and provide the Public Benefits
of the Project, and shall be defined as the Initial Term plus any Extended Term or Extended Terms.
A. Initial Term. The “Initial Term” of this Agreement shall
commence on the Effective Date and shall expire on the date which is ten (10) years thereafter
unless earlier terminated as provided in this Agreement.
B. Extended Term. Subject to the terms and conditions in this Section
3.2.B, Developers shall have the right to request two separate extensions of the Initial Term for
five (5) years each (individually each an “Extended Term” and collectively the “Extended
Terms”) for a full term not to exceed twenty (20) years. The Initial Term may also be subject to
potential further extension for Force Majeure Delays as provided in Section 3.2.D below.
1. First Extension Criteria. In order to request the first
extension, Developers shall be in compliance with all of their obligations under this Agreement
and Project Approvals at the time the extension request is made and at the time the extension would
become effective. To request the first extension, Developers shall have completed construction to
grade of the foundation for the first Building (which shall, at minimum, include construction up to
finished ground floor elevation and all underlying deep foundation components including but not
limited to fill, pilings, and footings)(the “First Extension Criteria”). If construction is not
underway and ongoing at the time of the First Extension request, then the site shall be secured and
kept clean, orderly, free of debris, and otherwise in a state that reflects best construction
management practices. For purposes of this Section 3.2, Developers shall be considered in
compliance with their obligations under this Agreement if they are not in Default, as defined in
018790.0001 4873-6748-2271.5 9
Section 11.1. If Developers desire to request the first extension, Developers must submit a letter
addressed to the City Manager requesting such extension at least sixty (60) days prior to the date
that the Initial Term otherwise would expire (“First Extension Request”). The First Extension
Request shall include documentation demonstrating that the First Extension Criteria have been
satisfied or will be satisfied prior to the date that the Initial Term otherwise would expire. City
shall grant the requested extension if the Developers are in compliance with this Agreement and if
Developers have met the First Extension Criteria; provided, however, that if one or more
Developers is or are not in compliance with this Agreement but the other Developer or Developers
is in compliance, City shall grant the requested extension for any Developer that is in compliance
and such extension shall only apply to that portion of the Property owned by the Developer in
compliance. City’s determination whether Developers have met the First Extension Criteria shall
be based solely upon the objective criteria in this Section 3.2.B.1, such that the decision to extend
this Agreement is ministerial and is not discretionary. Within ten (10) days after the written request
of either Party hereto, City and Developer agree to execute, acknowledge, and record in the Official
Records of San Mateo County a memorandum evidencing any approved extension of the Initial
Term pursuant to this Section 3.2.B.1.
2. Second Extension Criteria. In order to request the second
extension, Developers shall be in compliance with all of their obligations under this Agreement
and Project Approvals at the time the extension request is made and at the time the extension would
become effective. To request the second extension, Developers shall have obtained (i) certificate
of occupancy for the first Building, and (ii) final inspection approval for the core and shell of the
second Building, where the term “core and shell” refers to the building structure and envelope
without interior finishes (the “Second Extension Criteria”). If Developers desire to request the
second extension, Developers must submit a letter addressed to the City Manager requesting such
extension at least sixty (60) days prior to the date that the Extended Term otherwise would expire
(“Second Extension Request”). The Second Extension Request shall include documentation
demonstrating that the Second Extension Criteria have been satisfied or will be satisfied prior to
the date that the Extended Term otherwise would expire. The City shall grant the requested
extension if the Developers are in compliance with this Agreement and if the City determines that
the Developers have met the Second Extension Criteria; provided, however, that if one or more
Developers is or are not in compliance with this Agreement but the other Developer or Developers
is or are in compliance, City shall grant the requested extension for any Developer that is in
compliance and such extension shall only apply to that portion of the Property owned by the
Developer in compliance. City’s determination whether Developers have met the Second
Extension Criteria shall be based solely upon the objective criteria in this Section 3.2.B.2, such
that the decision to extend this Agreement is ministerial and is not discretionary. Within ten (10)
days after the written request of either Party hereto, City and Developers agree to execute,
acknowledge, and record in the Official Records of San Mateo County a memorandum evidencing
any approved extension of the Extended Term pursuant to this Section 3.2.B.2.
C. Effect of Termination. Upon the expiration of the Term, this
Agreement shall be deemed terminated and of no further force and effect, subject, however, to the
provisions set forth in Section 11.7 (“Surviving Provisions”) below.
D. Force Majeure Delay. Subject to the limitations and notice
requirements set forth below in Section 3.2.D.1, the Term of this Agreement and the time within
018790.0001 4873-6748-2271.5 10
which either Party shall be required to perform any act under this Agreement shall be extended by
a period of time equal to the number of days during which performance of such act is delayed
unavoidably and beyond the reasonable control of the Party seeking the delay by Force Majeure,
and as unforeseen at the time this Agreement was executed by the parties. For purposes of this
Agreement, “Force Majeure” is defined as strikes, lock outs, and other labor difficulties; Acts of
God; 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 any
winter season occurring after commencement of construction of the Project; failure or inability to
secure materials or labor by reason of priority or similar regulations or order of any governmental
or regulatory body; changes in local, state, or federal laws or regulations; any development
moratorium or any action of other public agencies that regulate land use, development, or the
provision of services that prevents, prohibits, or delays construction of the Project, including
without limitation any extension authorized by Government Code Section 66463.5(d); or enemy
action; civil disturbances; wars; terrorist acts; fire; a state or federal declaration of emergency
based on an epidemic or pandemic; unavoidable casualties; mediation, arbitration, litigation, or
other administrative or judicial proceeding involving the Project Approvals or this Agreement,
including without limitation any extension authorized by Government Code Section 66463.5(e)
(each a “Force Majeure Delay”). Developer’s inability or failure to obtain financing shall not be
deemed to be a cause outside the reasonable control of the Developer and shall not be the basis for
a Force Majeure Delay or any other excused delay under the terms of this Agreement.
1. Extension of Times of Performance. An extension of time
for any Force Majeure Delay shall be for the period of the enforced delay and shall commence to
run from the time of the commencement of the cause, if Notice (as defined in Section 13.5) by the
Party claiming such extension is sent to the other Party within sixty (60) days of the
commencement of the cause. If 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
the City Manager and Developers.
Section 3.3 City Representations and Warranties. City represents and warrants to
Developers that:
A. 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.
B. 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.
C. This Agreement is a valid obligation of City and is enforceable in
accordance with its terms.
D. The foregoing representations and warranties are made as of the
Agreement Date. During the Term of this Agreement, City shall, upon learning of any fact or
018790.0001 4873-6748-2271.5 11
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 Developers.
Section 3.4 Developers Representations and Warranties. Each Developer represents
and warrants to City that:
A. Developer is duly organized and validly existing under the laws of
the State of Delaware and is authorized to do business in California and has all necessary powers
to own property interests and in all other respects enter into and perform the undertakings and
obligations of Developer under this Agreement.
B. 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.
C. This Agreement is a valid obligation of Developer and is
enforceable in accordance with its terms.
D. Developer has not: 1) made a general assignment for the benefit of
creditors; 2) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Developer’s creditors; 3) suffered the appointment of a receiver to take possession of
all, or substantially all, of Developer’s assets; 4) suffered the attachment or other judicial seizure
of all, or substantially all, of Developer’s assets; 5) admitted in writing its inability to pay its debts
as they come due; or 6) made an offer of settlement, extension, or composition to its creditors
generally.
E. The foregoing representations and warranties are made by each
Developer as of the Agreement Date. During the Term of this Agreement, each 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
Section 4.1 Definitions. A. Applicable City Regulations. For purposes of
this Article and the Agreement, “Applicable City Regulations” means:
1. The City’s development standards for the Property,
including the permitted uses and zoning classifications, maximum density, and/or total number of
residential units, the intensity of use, the maximum height and size of the proposed buildings,
provisions for reservation or dedication of land for public purposes, the terms, conditions,
restrictions, and requirements for subsequent discretionary actions, the provisions of public
improvements and financing of public improvements, and other terms and conditions of
development as set forth in the General Plan, Municipal and Zoning Code, and other City rules,
regulations, ordinances, and official policies applicable to the Project on the Effective Date;
2. All State and Federal laws and regulations applicable to the
Property and the Project as enacted, adopted, and amended from time to time.
018790.0001 4873-6748-2271.5 12
3. Any New City Laws, defined in Section 4.1.C below, that
apply to the Property, as herein set forth in subsection A of Section 4.2 (“Vested Rights of
Developer”) and subsections C and D of Section 4.3 (“Reservations of City Authority”).
B. Conflict. For purposes of this Article, “conflict” means a
modification to the Project Approvals or this Agreement that purport to:
1. Limit the permitted uses of the Property, the density and
intensity of use (including but not limited to floor area ratios of buildings), or the maximum height
and size of proposed buildings;
2. 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 this Agreement;
3. Impose conditions upon development of the Property other
than as permitted by the Project Approvals, the Applicable City Regulations, Changes in the Law
(as provided in Section 4.8), and this Agreement;
4. Limit the timing, phasing, or rate of development of the
Property;
5. 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 the Project Approvals and this Agreement;
6. Limit or control the ability to obtain public utilities, services,
or facilities (provided, however, nothing herein shall be deemed 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);
7. Require the issuance of additional permits or discretionary
approvals by City other than those required by Applicable City Regulations, the Project Approvals,
and this Agreement;
8. Establish, enact, increase, or impose against the Project or
the Property any special taxes or assessments other than those specifically permitted by this
Agreement, including Section 5.2;
9. Apply to the Project any New City Laws that are not
uniformly applied on a City-wide basis to all substantially similar types of development projects
and project sites;
10. Impose against the Project any condition or exaction,
including and dedication, not specifically authorized by Applicable City Regulations, the Project
Approvals or this Agreement;
018790.0001 4873-6748-2271.5 13
11. Limit the processing or procuring of applications and
approvals of Subsequent Approvals; or
12. Impose against the Project any obligations regarding
affordable housing not specifically required by the Commercial Linkage Fee, the Project
Approvals, or this Agreement.
C. New City Laws. For purposes of this Article and the Agreement,
“New City Laws” means and includes any ordinances, resolutions, orders, rules, official policies,
standards, specifications, guidelines, or other regulations, which are promulgated or adopted by
City (including but not limited to any City Board, Commission, officer or employee) or its or their
electorate (through the power of initiative, referendum or otherwise) after the Effective Date.
Section 4.2 Vested Rights of Developer. Developer shall have the vested right to
develop the Property and the Project in accordance with and subject to the terms and conditions of
this Agreement, the Project Approvals, and the Applicable City Regulations, which shall control
the permitted uses, density and intensity of use of the Property, and the maximum height and size
of buildings on the Property.
A. New City Laws. Except as otherwise provided in this Agreement,
no New City Laws that conflict with the Project Approvals or this Agreement shall apply to the
Project or the Property.
Section 4.3 Reservations of City Authority. Notwithstanding any other provision of this
Agreement to the contrary, the following City regulations and provisions shall apply to the
development of the Project:
A. 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 the development permit application is deemed
complete;
B. Pursuant to California Building Code Section 1.1.9, 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 a permit application is submitted;
C. New City Laws applicable to the Property or Project at the time the
permit application is deemed complete, which do not conflict with the Project Approvals, any other
provision of this Agreement, or Developers’ vested rights under Section 4.2, provided that such
New City Laws are uniformly applied on a Citywide basis to all substantially similar types of
development projects;
D. New City Laws which may be in conflict with the Project Approvals
or this Agreement but which are necessary to protect persons or property from dangerous or
hazardous conditions that create a threat to the public health or safety or create a physical risk,
provided that such New City Laws are uniformly applied on a Citywide basis.
018790.0001 4873-6748-2271.5 14
Section 4.4 Regulation by Other Public Agencies. Developers acknowledge and agree
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. Developers shall, at the time required by
Developers in accordance with Developers’ construction schedule, apply for all such other permits
and approvals as may be lawfully required by other governmental or quasi-governmental entities
in connection with the development of, or the provision of services to, the Project. Developers
shall also pay all lawfully required fees when due to such public agencies. Developers
acknowledge that City does not control the amount of any such fees. City shall reasonably
cooperate with Developers in Developers’ effort to obtain such permits and approvals; provided,
however, City shall have no obligation to incur any costs, without compensation or reimbursement
by Developers, or to amend any policy, regulation, or ordinance of City in connection therewith.
Section 4.5 Life of Project Approvals; Vesting Tentative Subdivision Map (“VTM”)
Conflicts. 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. The
Parties acknowledge that the Developers have received a VTM for the Project that vests certain
rights under the Subdivision Map Act. The Parties agree that in the event of any conflict between
the provisions of this Agreement and the VTM, this Agreement shall control. If this Agreement
expires or is earlier terminated in accordance with its terms, the VTM shall remain in effect for its
remaining life, if any, in accordance with the Subdivision Map Act. The Parties’ agreements in
the foregoing sentence shall survive the expiration or earlier termination of this Agreement.
Section 4.6 Initiatives. If any New City Laws are enacted or imposed by a citizen-
sponsored initiative or referendum, which New City Laws would conflict with the Project
Approvals or this Agreement or reduce the development rights or assurances provided by this
Agreement, such New City Laws 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 subdivision
maps, use permits, building permits, or other entitlements to use that are approved or to be
approved, issued, or granted by City shall apply to the Property or Project. Developers agree and
understand 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 limitation that may
affect the Project. City shall reasonably cooperate with Developers and, at Developers’ expense,
shall undertake such actions as may be necessary to ensure that this Agreement remains in full
force and effect. City 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; provided,
however, that City may submit to a vote of the electorate initiatives and referendums required by
Applicable City Regulations to be placed on a ballot and fulfill any legal responsibility to defend
a ballot measure passed by its voters.
Section 4.7 Timing of Development. Developers shall have the vested right to develop
the Project in such order, at such rate, and at such times as each Developer deems appropriate in
the exercise of its business judgment. In particular, and not in any limitation of any of the
foregoing, the Parties note that 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
018790.0001 4873-6748-2271.5 15
expressly provide for, the timing of development resulted in a later adopted initiative restricting
the timing of development. It is the desire of the Parties hereto to avoid that result. 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, each Developer shall have
the vested right to develop its components of the Project in such order and at such rate and at such
times as each Developer deems appropriate in the exercise of its business judgment.
Section 4.8 Changes in the Law. As provided in Section 65869.5 of the
Development Agreement Law, 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 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. Following the meeting between the Parties,
the provisions of this Agreement may, to the extent feasible, and upon mutual agreement of the
Parties, be modified or suspended, but only to the minimum extent necessary to comply with such
Changes in the Law. In such event, this Agreement together with any required modifications shall
continue in full force and effect. In the event that the Changes in the Law operate to frustrate
irremediably and materially the vesting of development rights to the Project as set forth in this
Agreement, Developers may terminate this Agreement by Notice to City. Nothing in this
Agreement shall preclude Developers from contesting by any available means (including
administrative or judicial proceedings) such Changes in the Law or their applicability to the Project
and, in the event that such challenge is successful, this Agreement shall remain unmodified and in
full force and effect unless the Parties mutually agree otherwise.
Section 4.9 Conditions of Subsequent Approvals. No conditions imposed on
Subsequent Approvals (defined in Section 9.1) shall require dedications or reservations for, or
construction or funding of, public infrastructure or public improvements beyond those included in
the Project Approvals, except as required or expressly permitted by this Agreement.
Section 4.10 Sets of Project Approvals. Prior to the Effective Date, the Parties shall have
prepared two sets of the Project Approvals, one set for City and one set for Developers, to which
shall be added from time to time any Subsequent Approvals, so that if it becomes necessary in the
future to refer to any of the Project Approvals, there will be a common set available to the Parties.
Failure to include any rule, regulation, policy, standard, or specification in the sets of Project
Approvals as described in this Agreement shall not affect the applicability of such rule, regulation,
policy, standard, or specification.
ARTICLE 5. FEES, TAXES, AND ASSESSMENTS
Section 5.1 Developer Impact Fees.
A. Definition of Impact Fees. For purposes of this Agreement,
“Impact Fees” shall mean the monetary fees and impositions, other than taxes and assessments,
018790.0001 4873-6748-2271.5 16
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 a development project or the development of the
public facilities and services related to a development project, including but not limited to the
Commercial Linkage Fee, Public Facilities Impact Fee, and any other City “fee” as that term is
defined by Government Code Section 66000(b). For purposes of this Agreement, “New Impact
Fees” means those Impact Fees adopted by City after the Effective Date of this Agreement.
B. Payment of Impact Fees. For the period commencing on the
Effective Date and continuing until expiration of the Initial Term, Developer shall pay when due
all Impact Fees applicable to the Project in accordance with this Agreement in effect as of the
Effective Date at the rates in effect as of the Effective Date. The City shall not charge and
Developers shall not be subject to any New Impact Fee(s), except as otherwise set forth in this
Agreement.
1. Phase 1 Impact Fees. Developers must pay at least 50% of
Impact Fees due for the first Phase prior to issuance of any building permit for vertical construction
of the Building in the first Phase. Developers may defer the remaining 50% of Impact Fees due
for the first Phase to issuance of certificate of occupancy for the Building in the first Phase.
2. Impact Fees for Subsequent Phases. Impact Fees due for the
second and third Phases must be paid prior to issuance of the first building permit(s) for vertical
construction of the Building in each of those Phases.
C. Impact Fees Due in Extended Term(s). Subject to the Impact Fee
payment timing requirements described in B.1 and B.2 above, if the term of this Agreement is
extended pursuant to Section 3.2.B, during the Extended Term(s), Developers must pay Impact
Fees at rates in effect on the date that the extension is recorded, except that if an Impact Fee does
not have an escalator, the fee must be increased using Consumer Price Index (“CPI”). During the
Extended Term(s), Developers must also pay any New Impact Fees in effect at the rate in effect
on the date that the extension is recorded.
D. Exhibit G. The Impact Fees itemized on Exhibit G represent the
Parties’ good faith effort to identify the Impact Fees applicable to the Project, including the
applicable escalators as set forth in the City’s Impact Fee resolutions or, where applicable, the CPI.
City and Developers agree to amend and restate Exhibit G, as necessary, in the event one or more
Impact Fees have been inadvertently omitted or miscalculated or if any escalation provisions have
been inadvertently misstated.
E. No Credits. Developers shall not be entitled to any credits toward
Impact Fees due on account of the Public Benefits provided by Developers under this Agreement.
F. Connection Fees. For purposes of this Agreement, “Connection
Fees” means those fees charged by the City or by a utility provider to utility users as a cost for
connection to water, sanitary sewer, and other applicable utilities. Subject to Developers’ right to
protest and/or pursue a challenge in law or equity to any new or increased Connection Fees,
Developers shall pay Connection Fees assessed by utility providers and other agencies assessing
such fees at the rates in effect from time to time.
018790.0001 4873-6748-2271.5 17
G. Processing Fees. For purposes of this Agreement, “Processing
Fees” means all fees charged on a City-wide basis as part of the City’s Master Fee Schedule to
cover the cost of City processing of development project applications, including any required
supplemental or other further environmental review, plan checking (time and materials) and
inspection and monitoring for land use approvals, design review, grading and building permits,
General Plan maintenance fees, and other permits and entitlements required to implement the
Project, which fees are in effect at the time those permits, approvals, or entitlements are applied
for, and which fees are intended to cover the City’s actual costs of processing the foregoing.
Subject to Developers’ right to protest and/or pursue a challenge in law or equity to any new or
increased Processing Fees, City may charge and Developers agree to pay all Processing Fees which
are in effect on a City-wide basis at the time Developers apply for permits, approvals, or
entitlements.
H. Other Agency Fees. Nothing in this Agreement shall preclude City
from collecting fees from Developers that are lawfully imposed by another agency having
jurisdiction over the Project, which City is required to collect pursuant to Applicable City
Regulations, State or Federal Law (“Other Agency Fees”).
Section 5.2 Taxes and Assessments. Developers covenant and agree to pay prior to
delinquency all existing taxes and assessments and any and all new taxes or assessments that are
adopted after the Effective Date and which conform to the terms of this Agreement, including this
Section 5.2. As of the Agreement Date, City is unaware of any pending efforts to initiate, or
consider applications for new or increased special taxes or assessments covering the Property, or
any portion thereof. City shall retain the ability to initiate or process applications for the formation
of new assessment districts or imposition of new taxes covering all or any portion of the Property
in accordance with the Applicable City Regulations, but only if such taxes or assessments are
adopted by or after Citywide voter approval, or approval by landowners subject to such taxes or
assessments, and are imposed on other land and projects of the same category within the
jurisdiction of City in a reasonably proportional manner as determined by City, and, as to
assessments, only if the impact thereof does not fall disproportionately on the Property as
compared to the benefits accruing to the Property as indicated in the engineers report for such
assessment district. Nothing herein shall be construed so as to limit Developers from exercising
whatever rights they may otherwise have in connection with protesting or otherwise objecting to
the imposition of taxes or assessments on the Property. 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 Impact Fees to be paid by Developers under the Project Approvals or this Agreement, then
such Impact Fees payable by Developers shall be subject to reduction/credit in an amount equal to
Developers’ new or increased assessment under the assessment district. Alternatively, the new
assessment district shall reduce/credit Developers’ new assessments in an amount equal to such
Impact Fees to be paid by Developers under the Project Approvals or this Agreement. In
calculating any reduction or credit, the Parties shall take into account the timing of payment of the
Impact Fee and the new or increased assessment.
Section 5.3 MMRP Fair Share Contributions. As set forth in Section 8.8 below,
Developer is required and agrees to comply with all mitigation measures adopted as part of the
018790.0001 4873-6748-2271.5 18
Project Approvals. One mitigation measure requires Developers’ payment of a fair share
contribution relating to water supply, as follows:
A. Development Offset Program Contribution. As described in the
EIR, the City has determined that there would not be sufficient water supplies during multiple dry
years with implementation of the State Water Resources Control Board Bay-Delta Plan
Amendment. However, as further described in the EIR, the Project’s fair share contribution to the
City’s Development Offset Program would ensure the funding of water conservation programs to
offset the Project’s contribution to the supply shortage (the “Development Offset Program Fee”),
which is based on a supply shortage of 4.2 million gallons per year in the worst-case multi-year
drought scenario due in part to the Project affecting the overall demand. The Development Offset
Program Fee shall be calculated prior to issuance of certificate of occupancy for the first Building,
and Developers shall pay the Development Offset Program Fee in three installments prior to
issuance of certificate of occupancy for each of the three Buildings (the Center Building, the South
Building, and the North Building) in amounts proportional to each building’s square footage.
ARTICLE 6. ANNUAL REVIEW
Section 6.1 Periodic Review.
A. Purpose. As required by California Government Code Section
65865.1, City and Developers shall review this Agreement and all actions taken pursuant to the
terms of this Agreement with respect to the development of the Project every 12 months
following the Effective Date to determine good faith compliance with this Agreement. Each
annual review shall also document the status of the Project development and any extension of the
Initial Term of this Agreement pursuant to Section 3.2.B above. Developers shall have the right
to either file a joint report or each Developer may file its own report with respect to the portion
of the Project it owns.
B. Conduct of Annual Review. The annual review shall be conducted
as provided in this Section 6.1. By December 1st of each year following the Effective Date,
Developers shall provide documentation of its good faith compliance with this Agreement during
the year by submitting a completed Annual Review Form in the form provided in Exhibit H
(“Annual Review Form”) and such other information as may reasonably be requested by the
Community Development Director. The Community Development Director shall give notice to
the Developers at least ten (10) days in advance of the time that the compliance determination will
be considered by the City Council, and the City Council shall make the compliance determination
consistent with the procedure in Burlingame Municipal Code Section 25.104.130. In the event
that the City Council determines Developers are not in good faith compliance with the terms and
conditions of this Agreement, the City Council shall allow an opportunity to cure as described in
Section 11.1. If Developers fail to perform the action or covenant required by this Agreement
within the applicable cure period, the City Council may exercise its right to modify or terminate
this Agreement by following the procedure in Burlingame Municipal Code Section 25.140.140 or
take any other actions allowed by this Agreement and by law.
C. Failure to Conduct Annual Review. Failure of City to conduct an
annual review shall not constitute a waiver by the City of its rights to otherwise enforce the
018790.0001 4873-6748-2271.5 19
provisions of this Agreement nor shall Developers have or assert any defense to such enforcement
by reason of any such failure to conduct an annual review. However, if the annual review is not
submitted by Developer or Developers and City does not provide notice of such failure within
thirty (30) days after it was due, such failure shall not be the basis for a Default.
ARTICLE 7. MORTGAGEE PROTECTION
Section 7.1 Mortgagee Protection. This Agreement shall not prevent or limit any
Developer in any manner, at such Developer’s sole discretion and without the City’s consent, from
encumbering the Property or any portion thereof or any improvement thereon by (i) any mortgage,
deed of trust, or other security device securing financing with respect to the Property, or (ii) any
pledge of direct or indirect interests in Developer securing financing with respect to the Property
(“Mortgage”). This Agreement 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
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 a Mortgagee (as that term is defined below) who acquires title or possession to
the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or
otherwise. The term Mortgagee means (i) any person or entity who are beneficiaries under a
mortgage encumbering the Property, or a portion thereof or any improvement thereon, (ii) any
person or entity who is the beneficiary under a pledge of direct or indirect interests in Developer,
and/or (iii) any designee of the foregoing.
Section 7.2. Mortgagee Not Obligated. Notwithstanding the terms of this Article 7,, 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 the Project Approvals and this Agreement.
Section 7.3 Notice of Default to Mortgagee; Right to Cure. With respect to any
Mortgage granted by any Developer as provided herein, then so long as any such Mortgage shall
remain unsatisfied, the following provisions shall apply:
A. City, upon serving Developers any Notice of Default (as defined in
Section 11.1), shall also serve a copy of such Notice upon the Mortgagee for such Developer then
in Default at the address provided to City, and no Notice by City to Developers hereunder shall
affect any rights of a Mortgagee or any Mezzanine Lender unless and until a copy thereof has been
so served on such Mortgagee or Mezzanine Lender, as applicable; provided, however, that failure
so to deliver any such Notice shall in no way affect the validity of the Notice sent to Developers
as between Developers and City.
018790.0001 4873-6748-2271.5 20
B. In the event of a Default (as defined in Section 11.1) by any
Developer, any Mortgagee or Mezzanine Lender shall have the right to cure, or cause to be cured,
such Default within sixty (60) days following the later to occur of (1) the date of Mortgagee’s or
Mezzanine Lender’s receipt of the Notice referred to in Section 7.3.A above, or (2) the expiration
of the period provided herein for such Developer to cure such Default, and City shall accept such
performance by or at the insistence of the Mortgagee or Mezzanine Lender, as applicable, as if the
same had been timely made by such Developer; provided, however, that (1) if such Default is not
capable of being cured within the timeframes set forth in this Section 7.3.B and Mortgagee or
Mezzanine Lender commences to cure the Default within such timeframes, then Mortgagee or
Mezzanine Lender shall have such additional time as is required to cure the Default so long as
Mortgagee or Mezzanine Lender diligently prosecutes the cure to completion and (2) if possession
of the Property (or portion thereof) is required to effectuate such cure, the Mortgagee or Mezzanine
Lender shall be deemed to have timely cured or remedied if it commences the proceedings
necessary to obtain possession thereof within ninety (90) days after receipt of the copy of the
Notice, diligently pursues such proceedings to completion, and, after obtaining possession,
diligently completes such cure with respect to any default that is susceptible of cure, except as
otherwise provided in Section 7.2. If a Mortgagee or Mezzanine Lender is prohibited by any
process or injunction issued by any court or by reason of any action by any court having
jurisdiction of any bankruptcy or insolvency proceeding involving Developer (or direct or indirect
equity interests in Developer, as applicable) from commencing or prosecuting foreclosure or other
appropriate proceedings in the nature thereof, the times specified in Section 7.3.B for commencing
or prosecuting such foreclosure or other proceedings shall be extended for the period of such
prohibition.
C. So long as a Mortgagee or Mezzanine Lender shall be diligently
exercising its cure rights under this Agreement, City shall not pursue any remedies against
Developers as provided in Article 11 below, including, without limitation, exercising any right to
terminate this Agreement.
D. No Mortgagee or Mezzanine Lender shall become liable under this
Agreement unless and until such time it becomes, and then only for so long as it remains, the owner
of, or has control over, the interest in the Project, and no performance by or on behalf of a
Mortgagee or a Mezzanine Lender of a Developer’s obligations hereunder shall cause such
Mortgagee or Mezzanine Lender to be deemed to be a “mortgagee in possession” unless and until
such Mortgagee shall take possession or ownership of the Project or such Mezzanine Lender shall
take possession or ownership of a Developer, as applicable.
E. If there is more than one Mortgagee, the rights and obligations
afforded by this Article 7 to a Mortgagee shall be exercisable only by the party whose collateral
interest in the Project is senior in lien (or has obtained the consent of any Mortgagee whose
Mortgage is senior to the Mortgage of such Mortgagee).
F. Any Notice or other communication which City shall desire or is
required to give to or serve upon the Mortgagee or Mezzanine Lender shall be in writing and shall
be served in the manner set forth in Section 13.5, addressed to the Mortgagee or Mezzanine Lender
at the address provided by Mortgagee or Mezzanine Lender, as applicable, to City. Any Notice or
other communication which Mortgagee or Mezzanine Lender shall give to or serve upon City shall
018790.0001 4873-6748-2271.5 21
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 or Mezzanine Lender in like manner.
Section 7.4 No Supersedure. Nothing in this Article 7 shall be deemed to supersede or
release a Mortgagee or modify a Mortgagee’s obligations, if any, under any subdivision or public
improvement agreement or other obligation incurred with respect to the Project outside this
Agreement.
Section 7.5 Technical Amendments to this Article 7. City agrees to reasonably consider
and approve interpretations and/or technical amendments to the provisions of this Agreement or
execute instruments 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,
at Developers’ expense, to facilitate Developers’ negotiations with lenders.
ARTICLE 8. AMENDMENT OF AGREEMENT OR PROJECT APPROVALS
Section 8.1 Amendment of Agreement by Mutual Consent. This Agreement may be
amended in writing from time to time by mutual consent of the Parties hereto or their successors-
in-interest or assigns. Subject to the requirements of this Article 8, any amendment (whether a
Major Amendment or Minor Amendment) that only affects a portion of the Property over which
one or more Developers does not have an interest may be effectuated by mutual written consent
of the affected Developer or Developers and the City; provided, however, that the other
Developer or Developers shall be given written notice of the proposed amendment and its
substance at least thirty (30) days prior to its execution. Upon written request of Developer or
Developers for an amendment or modification of this Agreement, the City Manager or designee
shall determine whether the requested amendment or modification is a Minor Amendment, as
defined in Section 8.2, when considered in light of the Project as a whole. For purposes of this
Agreement, the City Manager or designee’s determination of whether the requested amendment
or modification is Minor or Major shall be deemed final and not subject to further appeal.
Section 8.2 Definition of Minor Amendments. For purposes of this Agreement, a
“Minor Amendment” shall be any change or modification to the Agreement that does not
substantially affect the following:
A. The Term of this Agreement;
B. The permitted uses of the Property;
C. Provisions for the reservation or dedication of land;
D. Conditions, terms, restrictions, or requirements for subsequent
discretionary actions;
E. The density or intensity of use of the Property or the maximum
height or size of proposed buildings;
018790.0001 4873-6748-2271.5 22
F. The nature, timing of delivery, or scope of public improvements
required by the Project Approvals; or
G. The amount of any monetary contributions by Developers.
Section 8.3 Minor Amendments to the Agreement. If the City Manager or designee
determines that the amendment or modification is a Minor Amendment to the Agreement, as set
forth in Section 8.2, the Minor Amendment may be approved by the City Manager or designee in
writing and shall not, except to the extent otherwise required by Applicable City Regulations,
require notice or public hearing before the Parties may execute the Minor Amendment.
Section 8.4 Major Amendment. Any amendment to this Agreement other than a Minor
Amendment shall be deemed a “Major Amendment” and shall be subject to approval by the City
Council by ordinance following duly noticed public hearings before the Planning Commission and
City Council consistent with Government Code Sections 65867, 65867.5 and 65868.
Section 8.5 Requirement for Writing. No modification, Minor or Major Amendment,
or other change to this Agreement or any provision hereof shall be effective for any purpose unless
specifically set forth in a writing that refers expressly to this Agreement and is signed by duly
authorized representatives of the City and any affected Developers or their successors.
Section 8.6 Amendments to Development Agreement Law. This Agreement has been
entered into in reliance upon the provisions of the Development Agreement Law as those
provisions existed as of the Effective Date 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. In the
event of the application of such Changes in the Law, the Parties shall meet in good faith to
determine the feasibility of any modification or suspension that may be necessary to comply with
such Changes in the Law and to determine the effect such modification or suspension would have
on the purposes and intent of this Agreement. Following the meeting between the Parties, the
provisions of this Agreement may, to the extent feasible, and upon mutual agreement of the Parties,
be modified or suspended, but only to the minimum extent necessary to comply with such Changes
in the Law. If such Change in the Law 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. Developers and/or City shall have the right to challenge any Changes
in the Law preventing compliance with the terms of this Agreement, and in the event such
challenge is successful, this Agreement shall remain unmodified and in full force and effect.
Section 8.7 Amendments to Project Approvals.
A. Generally. Project Approvals (not including amendments to this
Agreement, as set forth above in Sections 8.3 through 8.5) may be amended or modified from time
to time, but only at the written request of one or more Developers or with the written consent of
one or more Developers, at their sole discretion. Any amendment that only affects a portion of the
Property over which one or more Developers does not have an interest may be effectuated by
mutual written consent of the affected Developer or Developers and the City; provided, however,
018790.0001 4873-6748-2271.5 23
that the other Developer or Developers shall be given written notice of the proposed amendment
and its substance at least thirty (30) days prior to its execution. Amendments to the Project
Approvals shall be governed by the Project Approvals and by the Applicable City Regulations.
City shall not request, process, or consent to any amendment to the Project Approvals that would
affect the Property or the Project without Developers’ prior written consent. Once approved by
City, all amendments shall automatically become part of the Project Approvals, as described in
Recital K of this Agreement, and vested under this Agreement.
B. Administrative Amendments of Project Approvals. Upon the
request of a Developer or Developers for an amendment or modification of any Project Approvals
(except for this Agreement the amendment process for which is set forth in Section 8.3 through
8.5), 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 City Regulations 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 City
Regulations, 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. Any request of a
Developer or Developers for an amendment or modification to a Project Approval that is
determined not to be an Administrative Project Amendment as set forth above shall be subject to
review, consideration and action pursuant to the Applicable City Regulations and this Agreement.
Section 8.8 Amendments and CEQA/Mitigation Measures. The City has prepared and
certified the EIR for the Project, which evaluates the environmental effects of full development,
operation and use of the Project, and has imposed all feasible mitigation measures, including the
requirement to pay the fair share contributions set forth in Section 5.3 above, to reduce the
significant environmental effects of the Project. The Parties understand that the EIR is intended
to be used not only in connection with the Project Approvals, but also, to the extent legally
permitted, in connection with amendments to the Project Approvals. However, the Parties
acknowledge that certain amendments may legally require additional analysis under CEQA. For
example, a change in the Project Approvals could require additional analysis under CEQA if the
triggering conditions identified in CEQA Guidelines Section 15162 are met. In the event
supplemental or additional CEQA review is required for an amendment, City shall conduct such
supplemental or additional CEQA review to the scope of analysis mandated by CEQA in light of
the scope of City’s discretion to be exercised in connection with the amendments. Developers
acknowledge that, if the City determines based upon supplemental or additional CEQA review that
the amendments to the Project Approvals will result in new significant effects or substantially
increase the severity of effects that were identified in the EIR, City may require additional feasible
mitigation measures necessary to mitigate such impacts, provided however (except as otherwise
expressly provided herein) such additional mitigation measures shall not prevent development of
the Project for the uses set forth in the original Project Approvals. Developers shall comply with
the mitigation measures in the MMRP, which reflect the mutually agreed-upon timing of specified
improvements and Developers’ pro rata share of funding, where applicable. In the event further
mitigation measures are identified by such additional environmental review, City may require, and
Developers shall comply with, all feasible mitigation measures necessary to substantially lessen
018790.0001 4873-6748-2271.5 24
new or substantially more severe significant environmental impacts of the Project Approvals,
which were not foreseen at the time of preparation of the EIR or execution of this Agreement. For
the avoidance of any doubt, should such CEQA review of any proposed amendment to the Project
Approvals result in a finding that certain mitigation measures in the MMRP are no longer called
for or required due to the scope of the amendment, the MMRP may be modified to amend, or even
eliminate, certain mitigation measures that are no longer required as originally contemplated.
ARTICLE 9. SUBSEQUENT APPROVALS AND IMPLEMENTATION
Section 9.1 Subsequent Approvals. Certain subsequent land use approvals,
entitlements, and permits other than the Project Approvals, will be necessary or desirable for
implementation of the Project (“Subsequent Approvals”). The Subsequent Approvals may
include, without limitation, the following: major sign program approval, grading permits,
building permits, tree removal 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/or subdivision maps, design review, demolition permits,
improvement agreements, encroachment permits, temporary special event permits, and any
amendments to, or repealing of, any of the foregoing.
Section 9.2 Scope of Review of Subsequent Approvals. City shall not use its authority
in considering any application for a Subsequent Approval to change the policy decisions reflected
in the Project Approvals and this Agreement. Instead, the scope of review of applications for
Subsequent Approvals shall be limited to review of substantial conformity with the Project
Approvals, Applicable City Regulations, and compliance with CEQA. City shall not impose
conditions or exactions on Subsequent Approvals that exceed the requirements of, or are otherwise
inconsistent with, the Project Approvals, except as expressly permitted by this Agreement or
otherwise required by Applicable City Regulations. At such time as any Subsequent Approval
applicable to the Property is approved by City, then such Subsequent Approval shall become
subject to all the terms and conditions of this Agreement applicable to Project Approvals and shall
be incorporated therein and treated as part of the “Project Approvals” as defined in Recital K in
this Agreement.
Section 9.3 Processing Applications for Subsequent Approvals.
A. Developers acknowledge that City cannot begin processing applications for
Subsequent Approvals until applications are submitted by one or more Developers. Developers
shall use diligent good faith efforts to 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 cause Developers’ planners, engineers, and all other consultants to provide to City in a timely
manner all such documents, applications, plans and other materials required under the Applicable
City Regulations. It is the express intent of Developers and City to cooperate and diligently work
to obtain any and all Subsequent Approvals.
B. Upon submission by Developers of all appropriate applications and
Processing Fees for any pending Subsequent Approval, City shall, to the full extent allowed by the
Applicable City Regulations, promptly and diligently, subject to City ordinances, policies and
018790.0001 4873-6748-2271.5 25
procedures regarding hiring and contracting, commence and complete all steps necessary to act on
Developers’ currently pending Subsequent Approval applications including:
1. Upon the written request of the Developers, providing at
Developers’ sole cost and expense and subject to City’s ability to obtain such services, additional
staff and/or staff consultants for planning and processing of each pending Subsequent Approval
application (Developers shall pay such costs at cost plus 10% for administrative costs incurred);
2. If legally required, providing notice and holding public hearings;
and,
3. Acting on any such pending Subsequent Approval application.
C. Any subsequent discretionary action or discretionary approval initiated by
Developers that is not otherwise permitted by or contemplated in the Project Approvals or this
Agreement or which changes the uses, intensity, density, or building height or decreases the lot
area, setbacks, parking, or other entitlements permitted on the Property, except for the amendments
contemplated in Section 8.7, shall be subject to the rules, regulations, ordinances, and official
policies of the City then in effect at the time of application and City reserves full and complete
discretion with respect to any findings to be made in connection therewith.
Section 9.4 Other Agency Subsequent Approvals; Authority of City. Other public
agencies not within the control of City may 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 on the Project (“Other Agency Subsequent
Approvals”). Nevertheless, City shall be bound by, and shall abide by, its covenants and
obligations under this Agreement in all respects when dealing with any such agency regarding the
Property. City shall cooperate with Developers, at Developers’ expense, to the extent appropriate
and as permitted by the Applicable City Regulations, in Developers’ efforts to obtain, as may be
required the Other Agency Subsequent Approvals. In order to assist with City’s cooperation
efforts, Developers shall provide City notice of the submittal of any application for an Other
Agency Subsequent Approval within ten (10) business days of such submittal and, upon request,
shall promptly provide a copy of any such application to City. Nothing in this Section 9.4 shall
relieve Developers of their obligation to comply with the Project Approvals, notwithstanding any
conflict between the Other Agency Subsequent Approvals and the Project Approvals.
Section 9.5 Cooperation in the Event of Legal Challenge.
A. The filing of any third party lawsuit(s) against City or Developers
relating to the Project Approvals, this Agreement, or construction of the Project shall not delay or
stop the development, processing, or construction of the Project or approval of any Subsequent
Approvals, unless the third party obtains a court order preventing the activity. City shall not
stipulate to or cooperate in the issuance of any such order.
B. City and Developers 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 the Project Approvals or this Agreement (“Litigation Challenge”),
and the Parties shall keep each other informed of all developments relating to such defense, subject
018790.0001 4873-6748-2271.5 26
only to confidentiality requirements that may prevent the communication of such information. 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 Developers (each in its sole discretion), at the Developers’ sole cost and
expense. If the Parties cannot reach timely and mutual agreement on a joint counsel, and
Developers continue to elect (in their sole discretion) to defend against the Litigation Challenge,
then:
1. Developers shall take the lead role defending such Litigation
Challenge and may, in their sole discretion, elect to be represented by the legal counsel of their
choice;
2. City may, in its sole discretion, elect to be separately
represented by the legal counsel of its choice, with the reasonable costs of such representation to
be paid by Developers;
3. Developers shall reimburse City, within thirty (30) days
following City’s written demand therefor, which may be made from time to time during the course
of such Litigation Challenge, all reasonable costs and expenses incurred by City in connection
with the Litigation Challenge, including City’s reasonable administrative, legal, and court costs,
and City Attorney oversight expenses, including the retention of outside counsel; and,
4. Developers shall indemnify, defend, and hold harmless City
Parties from and against any damages, 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.
C. Upon request by Developers, City may enter into a joint defense agreement
in a form reasonably acceptable to the City Attorney to facilitate the sharing of materials and
strategies related to the defense of such Litigation Challenge without waiver of attorney client
privilege. Any proposed settlement of a Litigation Challenge by a Party shall be subject to the
approval of the other Party, such approval not to be unreasonably withheld, conditioned, or
delayed. If the terms of the proposed settlement would constitute an amendment or modification
of this Agreement or any Project Approvals, the settlement shall not become effective unless such
amendment or modification is approved by City in accordance with Applicable City Regulations,
and City reserves its full legislative discretion with respect thereto. If Developers opt not to contest
or defend such Litigation Challenge, City shall have no obligation to do so, but shall have the right
to do so at its own expense.
Section 9.6 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 in order to avoid or minimize to the greatest extent possible any impact to
the development of the Project as provided for in, and contemplated by, the Project Approvals and
this Agreement, or any conflict with the Project Approvals or this Agreement or frustration of the
intent or purpose of the Project Approvals or this Agreement.
018790.0001 4873-6748-2271.5 27
Section 9.7 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, exercise its discretion in such a way as to be
consistent with, and carry out the terms of, this Agreement and take such other actions as may be
necessary to carry out in good faith the terms of this Agreement.
Section 9.8 Defense of Agreement. City, at Developers’ expense, shall take all actions
that are necessary or advisable to uphold the validity and enforceability of this Agreement. If this
Agreement is adjudicated or determined to be invalid or unenforceable, City agrees, subject to all
legal requirements, to consider modifications to this Agreement to render it valid and enforceable
to the extent permitted by the Applicable City Regulations and State or Federal law.
ARTICLE 10. ASSIGNMENT, TRANSFER AND NOTICE
Section 10.1 Transfers and Assignments. Developers shall not sell, assign, or transfer
(“Transfer”) in whole or in part any of their respective their rights, duties, and obligations under
this Agreement, except for Developer Permitted Transfers as defined below, without the prior
written consent of City, which consent will not be unreasonably withheld, conditioned 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 duties and obligations
proposed to be assumed by such transferee and, if applicable, transferee’s team (i.e., those hired
by contract), and such determinations will be made by the City Council. Transfers subsequent to
the Notice of Completion for any and all Buildings and/or Parking Structures that are included in
the Transfer shall not require City consent. In no event shall the rights, duties, and obligations
conferred or imposed upon Developers pursuant to this Agreement be at any time so transferred
except through a Transfer of the Property and all such Transfers shall be made in accordance
with the requirements of this Section 10.1. In the event of a Transfer of a portion of the
Property, each Developer shall have the right to Transfer its rights, duties, and obligations under
this Agreement that are applicable to the transferred portion, and retain all rights, duties, and
obligations applicable to the retained portions of the Property.
A. Any Transfer made under this Section 10.1 shall be done only upon
consent of the City and only after City has been afforded time to diligently review the proposed
transferee within thirty (30) days after receiving notification of the proposed Transfer pursuant to
Section 10.1.B. Upon Developers’ request, City, at Developers’ expense, shall reasonably
cooperate with Developers or any Developer and any proposed transferee to allocate rights, duties,
and obligations under the Project Approvals and this Agreement between the transferred Property
and the retained Property.
B. Developer or Developers shall notify City in writing of any
proposed Transfer at least thirty (30) days prior to completing such Transfer. At least twenty-one
(21) days prior to the effective date of the Transfer, Developer or Developers shall deliver to City
a draft of the proposed written assignment and assumption agreement in which the transferee
expressly agrees to assume the rights and obligations under this Agreement relating to the portion
of the Property being transferred. The assignment and assumption agreement shall be in
substantially the form attached hereto as Exhibit I. The assignment and assumption agreement
018790.0001 4873-6748-2271.5 28
shall address in detail whether and how each obligation and right set forth in this Agreement and
in the Project Approvals shall be divided, allocated, or otherwise assigned, in whole or in part,
among transferor and transferee. No later than ten (10) business days after the date the Transfer
becomes effective, Developers shall deliver to City a conformed copy of the fully executed and
recorded assignment and assumption agreement.
C. In the event there is more than one Transfer under this Section
10.1, the provisions of Article 10 shall apply to each successive transferee.
D. 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 10 (each a “Developer Permitted Transfer”):
1. Any providing of the Property, or portion thereof or interest
therein, as collateral for financing purposes to secure the funds necessary for construction and/or
permanent financing of the Project and any transfer resulting from the exercise of rights under
any such financing;
2. An assignment of this Agreement to an affiliate of any
Developer, including any transfer among the Developers, where the term “affiliate” means an
entity or person that directly or indirectly controls, is controlled by or is under common control
with, a Developer, and the term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of Developer, whether
through the ownership of voting securities, by contract, or otherwise;
3. Dedications and grants of easements and rights of way
required in accordance with the Project Approvals;
4. Transfers of common areas to a property owners
association;
5. Transfers by a Mortgagee following acquisition of the
Property by foreclosure or deed in lieu of foreclosure; or
6. Any leasing activity.
Section 10.2 Release upon Transfer. Upon the Transfer of any Developer’s rights and
interests under this Agreement pursuant to this Article 10, such Developer shall automatically be
released from its obligations and liabilities under this Agreement with respect to that portion of
the Property transferred, and any subsequent default or breach with respect to the transferred rights
and/or obligations shall not constitute a default or breach with respect to the retained rights and/or
obligations under this Agreement, provided that such Developer has provided to City written
Notice of such Transfer, and the transferee executes and delivers to City a written agreement in
accordance with Section 10.1 above. Upon any Transfer of any portion of the Property and the
express assumption of Developer’s obligations under this Agreement by such transferee, City
agrees to look solely to the transferee for compliance by such transferee with the provisions of this
Agreement as such provisions relate to the portion of the Property acquired by such transferee. A
default by any transferee shall only affect that portion of the Property owned by such transferee
018790.0001 4873-6748-2271.5 29
and shall not cancel or diminish in any way Developers’ rights hereunder with respect to any
portion of the Property not owned by such transferee. The transferor and the transferee shall each
be solely responsible for the reporting and annual review requirements relating to the portion of
the Property owned by such transferor/transferee, and any amendment to this Agreement between
City and a transferor or a transferee shall only affect the portion of the Property owned by such
transferor or transferee. Failure to deliver a written assumption agreement hereunder shall not
affect the running of any covenants herein with the land, as provided in Section 13.4 below, nor
shall such failure negate, modify, or otherwise affect the liability of any transferee pursuant to the
provisions of this Agreement.
ARTICLE 11. DEFAULT; REMEDIES; TERMINATION
Section 11.1 Breach and Default. Subject to extensions of time under Section 3.2.B or
by mutual consent in writing, failure by a Party to perform any material action or covenant
required by this Agreement (not including any failure by Developers to perform any term or
provision of any other Project Approval) within thirty (30) days following receipt of written
Notice from the other Party specifying the failure shall constitute a “Default” under this
Agreement; provided, however, that if the failure to perform cannot be reasonably 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 prosecutes the cure to completion. Any Notice of Default given
hereunder shall specify in detail the nature of the failures in performance that the noticing Party
claims constitutes the Default, all facts constituting evidence of such failure, and the manner in
which such failure may be satisfactorily cured in accordance with the terms and conditions of
this Agreement. The waiver by either Party of any Default under this Agreement shall not
operate as a waiver of any subsequent breach of the same or any other provision of this
Agreement, including the right to terminate this Agreement as set forth in Section 11.2 below.
The provisions of this Article 11 shall be subject to the qualification that if the failure or default
relates only to a single Developer, and not all Developers together or the entire Project or the
entire Property, then the procedures and remedies described in this Agreement shall apply only
to the defaulting Developer and shall not apply to the non-defaulting Developer or its portion of
the Property or Project. Notwithstanding anything to the contrary contained in this Agreement,
each Developer’s liability hereunder shall be severable and not joint, and each Developer shall
have liability hereunder with respect to any portion of the Property owned by it and only in
connection with matters arising during the term of such Developer’s ownership of such portion
of the Property.
A. During the time periods herein specified for cure of a failure of
performance, the Party charged therewith shall not be considered to be in Default for the following:
1. Termination of this Agreement;
2. Institution of legal proceedings with respect thereto; or
3. Issuance of any approval with respect to the Project.
018790.0001 4873-6748-2271.5 30
Section 11.2 Termination. In the event of a Default by a Party, the non-defaulting Party
shall have the right to initiate legal proceedings pursuant to Section 11.3 and/or terminate this
Agreement upon giving Notice of Intent to Terminate pursuant to Government Code Section
65868. 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 Section 6.1.B above.
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 Party. Termination of this Agreement shall be subject to the provisions of Section 11.7
below. In the event that this Agreement is terminated pursuant to this Section 11.2 and the validity
of such termination is challenged in a legal proceeding that results in a final decision that such
termination was improper, then this Agreement shall immediately be reinstated as though it had
never been terminated.
Section 11.3 Legal Actions.
A. 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 terms of this Agreement. 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, 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.
B. Acceptance of Service of Process. In the event that any legal action
is commenced by Developers 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. In the
event that any legal action is commenced by City against a Developer or Developers, service of
process on Developers shall be made by personal service upon each such Developer’s registered
agent for service of process, or in such other manner as may be provided by law.
Section 11.4 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 the other Party, except as otherwise expressly provided
herein.
Section 11.5 No Damages. In no event shall a Party, or its boards, commissions,
members, officers, agents, or employees, be liable in damages for any Default under this
Agreement, it being expressly understood and agreed that the sole legal remedy available to a Party
for a breach or violation of this Agreement by another Party shall be an action in mandamus,
specific performance, or other injunctive or declaratory relief to enforce the provisions of this
Agreement by the other Party, or to terminate this Agreement. This limitation on damages shall
not preclude actions by City to enforce payments of monies or the performance of obligations
requiring an obligation of money from any Developer under the terms of this Agreement including,
018790.0001 4873-6748-2271.5 31
but not limited to, obligations to pay attorneys’ fees and obligations to advance monies or pay
funds under Article 2 (Public Benefits). 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 the other Party.
Section 11.6 Resolution of Disputes. With regard to any dispute involving the Project,
the resolution of which is not provided for by this Agreement or Applicable City Regulations, a
Party shall, at the request of another Party, meet with designated representatives of the requesting
Party promptly following its request. The Parties to any such meetings shall attempt in good faith
to resolve any such disputes. Nothing in this Section 11.6 shall in any way be interpreted as
requiring that Developers and City reach agreement with regard to those matters being addressed,
nor shall the outcome of these meetings be binding in any way on City or Developers unless
expressly agreed to in writing by the Parties to such meetings.
Section 11.7 Surviving Provisions. In the event this Agreement expires or is terminated,
neither Party shall have any further rights or obligations hereunder, except for those obligations
set forth in Section 9.5 (Cooperation in the Event of Legal Challenge), or expressly set forth herein
as surviving the termination of this Agreement. The termination or expiration of this Agreement
shall not affect the validity of the Project Approvals. In the event litigation is timely instituted, and
a final judgment is obtained, which invalidates in its entirety this Agreement, neither Party shall
have any obligations whatsoever under this Agreement, except for those obligations which by their
terms survive termination hereof.
Section 11.8 California Claims Act. Compliance with the procedures set forth in this
Article 11 shall be deemed full compliance with the requirements of the California Claims Act
(Government Code Section 900 et seq.) including, but not limited to, the Notice of an event of
Default hereunder constituting full compliance with the requirements of Government Code Section
910.
ARTICLE 12. INSURANCE AND INDEMNITY
Section 12.1 Insurance Requirements. In connection with development of the Project,
Developers shall procure and maintain, or cause its contractor(s) to procure and maintain a
commercial general liability policy in an amount not less than Five Million Dollars ($5,000,000)
combined single limit, including contractual liability together with a comprehensive automobile
liability policy in the amount of Two Million Dollars ($2,000,000), combined single limit. Such
policy or policies shall be written on an occurrence form, so long as such form of policy is then
commonly available in the commercial insurance marketplace. Developers’ insurance shall be
placed with insurers with a current A.M. Best’s rating of no less than A-:VII or a rating
otherwise approved by the City in its sole discretion. Developers shall furnish at City’s request
appropriate certificate(s) of insurance evidencing the insurance coverage required by Developers
hereunder, and City Parties shall be named as additional insured parties under the policies
018790.0001 4873-6748-2271.5 32
required hereunder. The certificate of insurance shall contain a statement of obligation on the
part of the carrier to notify City of any material change, cancellation or termination of the
coverage at least thirty (30) days in advance of the effective date of any such material change,
cancellation or termination (ten (10) days advance notice in the case of cancellation for
nonpayment of premiums) where the insurance carrier provides such notice to the Developers.
Coverage provided hereunder by Developers shall be primary insurance and shall not be
contributing with any insurance, self-insurance or joint self-insurance maintained by City, and
the policy shall contain such an endorsement. The insurance policy or the endorsement shall
contain a waiver of subrogation for the benefit of City. Developers understand that City may
change these insurance requirements upon, and as a condition of, approval of an Extended Term.
Section 12.2 Indemnification. Each Developer shall defend (with counsel reasonably
acceptable to City), indemnify, assume all responsibility for, and hold harmless City, its elected
officials, executives, directors, agents, employees, volunteers, and other representatives (“City
Parties”), from and against, any and all claims, demands, damages, liabilities, lawsuits, losses,
expenses, and obligations, including interest, penalties, attorneys’ fees and costs, and all amounts
paid in the investigation, defense, or settlement of the foregoing (“Claims”) arising directly or
indirectly from the work to construct the Project, including the design, development, and
construction thereof and including the design, development, and construction of any improvements
requiring any City-sponsored or City-requested approvals from the California Department of
Transportation in connection with the Project, whether such Claims shall accrue or be discovered
before or after expiration or termination of this Agreement. Developers’ indemnity obligations
under this Section 12.2 shall not extend to claims occasioned by the negligence or willful
misconduct of City Parties. Each Developer’s liability hereunder shall be severable and not joint,
and each Developer shall have liability hereunder with respect to any portion of the Property
owned by it and only in connection with matters arising during the term of such Developer’s
ownership of such portion of the Property. The provisions of this Section 12.2 shall survive for
ten (10) years after substantial completion of any improvement, where the term “substantial
completion” has the meaning set out in California Code of Civil Procedures section 337.15.
ARTICLE 13. MISCELLANEOUS PROVISIONS
Section 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.
Section 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.
Section 13.3 Construction. Each reference herein to this Agreement or any of the Project
Approvals (including any amendments or Subsequent Approvals) shall be deemed to refer to the
Agreement and the Project Approvals as they may be amended from time to time in accordance
with this Agreement, 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
018790.0001 4873-6748-2271.5 33
interpreting or construing the terms, covenants, or conditions of this Agreement. This Agreement
has been reviewed and revised by legal counsel for City and Developers, 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, 1) the plural and
singular numbers shall each be deemed to include the other; 2) the masculine, feminine, and neuter
genders shall each be deemed to include the others; 3) “shall,” “will,” or “agrees” are mandatory,
and “may” is permissive; 4) “or” is not exclusive; 5) “include,” “includes” and “including” are not
limiting and shall be construed as if followed by the words “without limitation;” and 6) “days”
means calendar days unless specifically provided otherwise.
Section 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.
Section 13.5 Notices. Any notice or communication required hereunder between City
and Developers (“Notice”) 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. Courtesy notice may be given by email but shall not constitute Notice under
this Agreement. 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
shall be deemed to have been given and received on the first to occur of (A) actual receipt by any
of the addressees designated below as the Party to whom Notices are to be sent, or (B) 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 shall be deemed to have been given and received on the date delivered as shown on a receipt
issued by the courier. Any Party hereto may at any time, by giving ten (10) days written Notice to
the other Parties hereto, designate any other address in substitution of the address to which such
Notice shall be given. Such Notices shall be given to the Parties at their addresses set forth below:
To City: City of Burlingame
501 Primrose Road
Burlingame, CA 94010
Attn: City Manager
With a copy to: City Attorney’s Office
501 Primrose Road
Burlingame, CA 94010
Attn: City Attorney
and:
018790.0001 4873-6748-2271.5 34
To Developers:
DW I, DW II, DW II A, DW II B, and DW III
c/o Divco West
301 Howard Street, Suite 2100
San Francisco, CA 94105
Attn: General Counsel
With a copy to:
DW I, DW II, DW II A, DW II B, and DW III
c/o Divco West Real Estate Asset Management
301 Howard Street, Suite 2100
San Francisco, CA 94105
Attn: Development Manager and Asset Manager
(two separate notices)
Section 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 Project 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.
Section 13.7 Recordation of Agreement. Pursuant to California Government Code
Section 65868.5, no later than ten (10) days after City and Developers enter into this Agreement,
the City Clerk shall record this Agreement in the Official Records of the County of San Mateo.
Thereafter, if this Agreement is terminated, modified, or amended, the City Clerk shall record
notice of such action in the Official Records of the County of San Mateo.
Section 13.8 No Joint Venture or Partnership. It is specifically understood and agreed to
by and between the Parties hereto that:
A. The subject development is a private development;
B. 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 Project
Approvals or Subsequent Approvals;
C. Developers shall have full power over and exclusive control of the Project
herein described, subject only to the limitations and obligations of Developers under the Project
Approvals, this Agreement, the Subsequent Approvals, and Applicable City Regulations; and
D. City and Developers hereby renounce the existence of any form of agency
relationship, joint venture, or partnership between City and Developers 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 Developers.
018790.0001 4873-6748-2271.5 35
Section 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 the other 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 the other 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.
Section 13.10 City Approvals and Actions. Whenever reference is made herein to an
action or approval to be undertaken by City, the City Manager or their designee is authorized to
act on behalf of City, unless specifically provided otherwise or the context requires otherwise.
Section 13.11 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 best of knowledge of the certifying Party, the following: 1) this
Agreement is in full force and effect and a binding obligation of the Parties; 2) this Agreement has
not been amended or modified either orally or in writing, or if amended, identifying the
amendments; 3) 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; 4)
if the responding Party is the City, confirmation that as of the last periodic review of the Project
as described in Section 6.1, that the Developer Party is in good faith compliance with the terms of
this Agreement or that the Developer Party was not in good faith compliance with the terms of this
Agreement at the time of review; and, 5) any other information reasonably requested. The
requesting Party shall be responsible for all reasonable costs incurred by the Party from whom
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 within twenty (20) days following the receipt thereof. The
failure of either Party to provide the requested certificate within such twenty (20) day period shall
constitute a confirmation that this Agreement is in full force and effect and no modification or
default exists. The City Manager shall have the right to execute any certificate requested by
Developers hereunder. City acknowledges that a certificate hereunder may be relied upon by
transferees and Mortgagees.
Section 13.12 No Third Party Beneficiaries. City and Developers 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.
Section 13.13 Further Actions and Instruments. Each Party to this Agreement shall
cooperate with and provide reasonable assistance to the other Parties and take all actions necessary
to ensure that the Parties receive the benefits of this Agreement, subject to satisfaction of the
conditions of this Agreement. Upon the request of any Party, the other Parties shall promptly
execute, with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement.
018790.0001 4873-6748-2271.5 36
Section 13.14 Limitation on Liability. In no event shall any partner, officer, director,
member, shareholder, employee, manager, representative, or agent of Developers or any manager
or member of Developers be personally liable for any breach of this Agreement by any Developer,
or for any amount which may become due to City under the terms of this Agreement; or any elected
or appointed official, member, officer, agent, or employee of City be personally liable for any
breach of this Agreement by City or for any amount which may become due to Developers under
the terms of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
37
IN WITNESS WHEREOF, this Agreement has been entered into by and between
Developers and City as of the day and year first above written.
38
CITY:
CITY OF BURLINGAME, a municipal
corporation
By:
Lisa Goldman, City Manager
APPROVED AS TO FORM: [signature must be notarized]
By:
Michael Guina, City Attorney
ATTEST:
By:
Meaghan Hassel-Shearer, City
Clerk
DEVELOPERS:
DW BURLINGAME I OWNER, LLC, a
Delaware limited liability company
By:
[signature must be notarized]
39
DW BURLINGAME II OWNER, LLC, a
Delaware limited liability company
By: __________________________________
__________________________________
__________________________________
[signature must be notarized]
DW BURLINGAME II OWNER A, LLC, a
Delaware limited liability company
By: __________________________________
__________________________________
__________________________________
[signature must be notarized]
DW BURLINGAME II OWNER B, LLC, a
Delaware limited liability company
By: __________________________________
__________________________________
__________________________________
[signature must be notarized]
DW BURLINGAME III OWNER, LLC, a
Delaware limited liability company
By: __________________________________
__________________________________
__________________________________
[signature must be notarized]
EXHIBIT A
Property Map
Property MapExhibit AA-1
EXHIBIT B
Legal Description of Property
Records
B-1
EXHIBIT B
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
BURLINGAME, IN THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
TRACT A:
Being all of Parcel 62635-1 described in the Grant Deed to the San Mateo County Transportation
Authority, recorded May 16, 2018 under Recorder's Series Number 2018-038040 CONF,
Official Records of said County, together with a portion of Parcel 62636-1 described in the
Quitclaim Deed to the San Mateo County Transportation Authority, a Public Agency, recorded
October 23, 2013 under Recorder's Series Number 2013-149170, Official Records of said
County, more particularly described as follows:
PARCEL DD-62635
BEGINNING at the most Westerly corner of said Parcel 62635-1; thence along the
Northwesterly line of last said Parcel and the Northeasterly lines of said Parcels the following
three (3) courses,
1. North 34°56'59" East 272.94 feet,
2. South 32°48'23" East 164.63 feet (at 129.50 feet lies the most Easterly corner of said
Parcel 62635-1),
3. South 48°40'12" East 95.86 feet; thence departing said Northeasterly line,
4. Southwesterly, along the arc of a non-tangent curve to the left, concave to the Southeast,
the center of which bears South 18°36'01" East 209.55 feet, through a central angle of 12°35'11",
an arc distance of 46.03 feet; thence,
5. South 58°48'48" West 24.89 feet; thence
6. Southwesterly, along the arc of a curve to the left, concave to the Southeast, having a
radius of 825.62 feet, through a central angle of 07°38'50", an arc distance of 110.19 feet to a
point of cusp; thence,
7. South 83°45'48" West 40.84 feet to a point on the Southwesterly line of said Parcel
62636-1; thence along the Southwesterly lines of said Parcels,
8. North 57°51'05" West 146.21 feet (at 26.17 feet lies the most Southerly corner of said
Parcel 62635-1) to the POINT OF BEGINNING.
Containing 46,181 square feet (1.060 acres), more or less.
APN: 026-142-020, 026-142-180 and 026-142-030
B-2
TRACT B:
LOT 3, AS SHOWN ON THAT CERTAIN MAP ENTITLED "BEARINT INDUSTRIAL
PARK BURLINGAME, SAN MATEO COUNTY, CALIFORNIA", FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, ON
MARCH 11, 1959 IN BOOK 50 OF MAPS AT PAGE(S) 39.
APN: 026-142-160 and 026-142-170
TRACT C:
PARCEL 2, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "PARCEL MAP 12-01
BEING A RESUBDIVISION OF LOT 4 AS SHOWN ON THAT CERTAIN MAP ENTITLED
'BEARINT INDUSTRIAL PARK, BURLINGAME, SAN MATEO COUNTY, CALIFORNIA'
FILED MARCH 11, 1959 IN VOLUME 50 OF MAPS AT PAGE 39, SAN MATEO COUNTY
RECORDS, CITY OF BURLINGAME, SAN MATEO COUNTY, CALIFORNIA", FILED IN
THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF
CALIFORNIA ON DECEMBER 21, 2012 IN BOOK 80 OF PARCEL MAPS AT PAGES 55
AND 56.
EXCEPTING THEREFROM ALL THAT PORTION THEREOF AS GRANTED TO SAN
MATEO COUNTY TRANSPORTATION AUTHORITY, A PUBLIC AGENCY BY GRANT
DEED DATED FEBRUARY 13, 2013 AND RECORDED FEBRUARY 27, 2013 AS
INSTRUMENT NO. 2013-031492 SAN MATEO COUNTY RECORDS.
APN: 026-142-240
TRACT D:
Parcel ONE:
Parcel 1 of Parcel Map 12-01, filed December 21, 2012 in the office of the Recorder of San
Mateo County in Volume 80 of Parcels Maps, at Pages 55 and 56.
Excepting therefrom all those portions conveyed to San Mateo County Transportation Authority,
a Public Agency by Grant Deed recorded February 27, 2013, as Instrument No. 2013-31492, of
Official Records.
APN: 026-142-220
Parcel Two:
A reciprocal, non-exclusive easement for the purposes of (i) maintenance, repair and replacement
of all existing utility lines in, on, over, under, across and through the areas where such lines
currently exist and (ii) fire apparatus access and vehicular and pedestrian ingress, egress, access
in, on, over, under, across and through the currently paved driving areas lying within Parcel 2 of
Parcel Map 12-01, filed December 21, 2012 in the Office of the Recorder of San Mateo County
in Volume 80 of Parcel Maps, at Pages 55 and 56, pursuant to that certain Reciprocal Easement
B-3
Agreement by and between Terrapin 1250 Bayshore Property Owner, LLC, a Delaware limited
liability company, and Max Acquisition, LLC, a California limited liability company, recorded
November 5, 2015 as Document No. 2015-117144.
Parcel Three:
A reciprocal, non-exclusive easement for the purposes of vehicular parking in parking areas
lying within Parcel 2 of Parcel Maps 12-01, filed December 21, 2012 in the Office of the
Recorder of San Mateo County in Volume 80 of Parcel Maps, at Pages 55 and 56, pursuant to
that certain Reciprocal Easement Agreement by and between Terrapin 1250 Bayshore Property
Owner, LLC, a Delaware limited liability company, and Max Acquisition, LLC, a California
limited liability company, recorded November 5, 2015 as Document No. 2015-117144.
Parcel Four:
An easement to use, maintain and repair the monument signage lying within Parcel 2 of Parcel
Map 12-01, filed December 21, 2012 in the Office of the Recorder of San Mateo County in
Volume 80 of Parcels Maps, at Pages 55 and 56, pursuant to that certain Reciprocal Easement
Agreement by and between Terrapin 1250 Bayshore Property Owner, LLC, a Delaware limited
liability company, and Max Acquisition, LLC, a California limited liability company, recorded
November 5, 2015 as Document No. 2015-117144.
Parcel Five:
A non-exclusive easement to access, use, inspect, maintain, repair and replace the existing sewer,
water, electrical gas and other utilities serving Parcel 1 which are currently lying within Parcel 2
of Parcel Map 12-01, filed December 21, 2012 in the Office of the Recorder of San Mateo
County in Volume 80 of Parcels Maps, at Pages 55 and 56, pursuant to that certain Reciprocal
Easement Agreement by and between Terrapin 1250 Bayshore Investors, LLC, a Delaware
limited liability company, and Max Acquisition, LLC, a California limited liability company,
recorded November 5, 2015 as Document No. 2015-117144.
TRACT E:
PARCEL I:
LOT 2, AS SHOWN ON THAT CERTAIN MAP ENTITLED "BEARINT INDUSTRIAL
PARK, BURLINGAME, SAN MATEO COUNTY, CALIFORNIA", FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, ON
MARCH 11, 1959 IN BOOK 50 OF MAPS, AT PAGE 39.
EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED IN THE GRANT
DEED TO SAN MATEO TRANSPORTATION AUTHORITY, A PUBLIC AGENCY
RECORDED NOVEMBER 12, 2013, INSTRUMENT NO. 2013-155819, SAN MATEO
COUNTY RECORDS.
JPN: 026-014-142-07A
APN: 026-142-200
B-4
PARCEL II:
BEGINNING AT A POINT WHICH IS ON THE NORTHWESTERLY BOUNDARY LINE OF
LOT 1, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "BEARINT INDUSTRIAL
PARK, 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 MARCH 11, 1959, IN BOOK 50 OF MAPS, AT PAGE 39, SAID
POINT OF BEGINNING BEING NORTH 67° 58' 20" EAST 114.50 FEET FROM THE
NORTHWESTERLY CORNER OF SAID LOT 1; THENCE ALONG THE
NORTHWESTERLY BOUNDARY LINE OF SAID BEARINT INDUSTRIAL PARK NORTH
67° 58' 20" EAST 380.50 FEET TO THE MOST NORTHERLY CORNER OF LOT 4 OF SAID
BEARINT INDUSTRIAL PARK, AND ALSO BEING THE SOUTHEASTERLY TERMINUS
OF THAT CERTAIN BOUNDARY AGREEMENT BETWEEN WESTBAY COMMUNITY
ASSOCIATION, A GENERAL PARTNERSHIP, AND ANZA SHAREHOLDERS
LIQUIDATION TRUST, RECORDED JULY 25, 1977, IN BOOK 7554 OF OFFICIAL
RECORDS, AT PAGE 129 (FILE NO. 51992-AL); THENCE ALONG SAID LAST
MENTIONED LINE, BEING THE NORTHWESTERLY PROLONGATION OF THE
NORTHEASTERLY LINE OF SAID LOT 4, NORTH 32° 48' 16" (THE NORTHEASTERLY
LINE OF SAID LOT 4 IS SHOWN ON SAID MAP AS NORTH 34° 00’ 40" WEST), 330.90
FEET; THENCE SOUTH 67° 58' 20" WEST 237.51 FEET; THENCE SOUTH 22° 01' 40"
EAST 128.00 FEET; THENCE SOUTH 67° 58' 20" WEST 210.00 FEET TO THE EASTERLY
LINE OF BAYSHORE HIGHWAY; THENCE ALONG SAID EASTERLY LINE OF
BAYSHORE HIGHWAY SOUTH 22° 01' 40" EAST 84.00 FEET TO A POINT; THENCE
LEAVING SAID EASTERLY LINE OF BAYSHORE HIGHWAY NORTH 67° 58' 20" EAST
135.00 FEET TO A POINT; THENCE SOUTH 22° 01' 40' EAST 108.00 FEET TO THE
POINT OF BEGINNING.
JPN: 026-011-113-21A
APN: 026-113-480
PARCEL III:
BEGINNING AT THE NORTHWESTERLY CORNER OF LOT 1, AS SHOWN ON THAT
CERTAIN MAP ENTITLED, "BEARINT INDUSTRIAL PARK, 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 MARCH
11, 1959, IN BOOK 50 OF MAPS, AT PAGE 39; SAID POINT OF BEGINNING ALSO
BEING ON THE ABANDONED EASTERLY LINE OF BAYSHORE HIGHWAY; THENCE
FROM SAID POINT OF BEGINNING, ALSO THE NORTHWESTERLY LINE OF SAID
LOT, NORTH 67° 58’ 20" EAST, 114.50 FEET TO A POINT; THENCE LEAVING SAID
LINE OF LOT 1, NORTH 22° 01’ 40" WEST, 108.00 FEET; THENCE SOUTH 67° 58’ 20"
WEST, 135.00 FEET TO THE EXISTING EASTERLY LINE OF BAYSHORE HIGHWAY;
THENCE ALONG SAID EXISTING LINE OF BAYSHORE HIGHWAY, SOUTH 22° 01’ 40"
EAST, 108.00 FEET TO A POINT; THENCE NORTH 67° 58’ 20" EAST, 20.50 FEET TO
THE POINT OF BEGINNING.
B-5
JPN: 026-11-113-21A; 36A
APN: 026-113-450
PARCEL IV:
LOT 1, AS DESIGNATED ON THAT CERTAIN MAP ENTITLED, "BEARINT
INDUSTRIAL PARK, 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 MARCH 11, 1959, IN BOOK 50 OF MAPS, AT
PAGE 39.
JPN: PORTION 026-14-142-11A
APN: PORTION 026-142-110
PARCEL V:
BEGINNING AT THE MOST WESTERLY CORNER OF LOT 1, AS SHOWN ON THAT
CERTAIN MAP ENTITLED, "BEARINT INDUSTRIAL PARK, BURLINGAME, SAN
MATEO COUNTY, CALIFORNIA," WHICH MAP WAS FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, ON
MARCH 11, 1959, IN BOOK 50 OF MAPS, AT PAGE 39; THENCE FROM SAID POINT OF
BEGINNING ALONG THE SOUTHWESTERLY BOUNDARY LINE OF SAID LOT 1
SOUTH 22° 01' EAST 100 FEET; THENCE LEAVING SAID LINE SOUTH 22° 01' EAST
36.57 FEET; THENCE SOUTH ALONG THE ARC OF A TANGENT CURVE TO THE LEFT
WITH A RADIUS OF 2637.5 FEET, THROUGH A CENTRAL ANGLE OF 0° 24' 43", A
DISTANCE OF 18.96 FEET TO A POINT; THENCE NORTHWESTERLY ALONG THE
ARC OF A CURVE TO THE RIGHT, THE CENTER OF WHICH BEARS NORTH 48° 00' 03"
EAST FROM THE LAST MENTIONED POINT, SAID CURVE HAVING A RADIUS OF
341.63 FEET AND A CENTRAL ANGLE OF 19° 58' 57", A DISTANCE OF 119.15 FEET;
THENCE NORTH 22° 02' WEST 38.79 FEET; THENCE NORTH 67° 59' EAST 20.5 FEET
TO THE POINT OF BEGINNING.
JPN: PORTION 026-14-142-11A
APN: PORTION 026-142-110
PARCEL VI:
BEGINNING AT A POINT WHICH IS ON THE NORTHEASTERLY RIGHT OF WAY LINE
OF BAYSHORE HIGHWAY, SAID POINT OF BEGINNING BEING SOUTH 67° 58' 20"
WEST 20.50 FEET AND NORTH 32° 01' 40' WEST 192.00 FEET FROM THE
NORTHWESTERLY CORNER OF LOT 1, AS DESIGNATED ON THE MAP ENTITLED,
BEARINT INDUSTRIAL PARK, 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 MARCH 11, 1959, IN BOOK 50 OF MAPS,
AT PAGE 39; THENCE FROM SAID POINT OF BEGINNING ALONG THE SAID
NORTHEASTERLY LINE OF BAYSHORE HIGHWAY, NORTH 22° 01' 40” WEST 163.00
FEET TO A POINT; THENCE LEAVING SAID NORTHEASTERLY LINE OF BAYSHORE
HIGHWAY NORTH 67° 58' 20" EAST 210.00 FEET; THENCE SOUTH 22° 01' 40” EAST
B-6
163.00 FEET; THENCE SOUTH 67° 58' 20" WEST 210.00 FEET TO THE POINT OF
BEGINNING.
JPN: 026-011-113-33A
APN: 026-113-330
PARCEL VII:
BEGINNING AT A POINT ON THE NORTHEASTERLY RIGHT OF WAY LINE OF
BAYSHORE HIGHWAY, SAID POINT OF BEGINNING BEING SOUTH 67° 58’ 20" WEST
20.50 FEET AND NORTH 22° 01’ 20" WEST 426.00 FEET FROM THE MOST WESTERLY
CORNER OF LOT 1, AS SAID LOT IS DESIGNATED ON THE MAP ENTITLED
"BEARINT INDUSTRIAL PARK, 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 MARCH 11, 1959, IN BOOK 50
OF MAPS AT PAGE 39; THENCE FROM SAID POINT OF BEGINNING, LEAVING SAID
POINT OF BEGINNING, LEAVING SAID NORTHEASTERLY RIGHT OF WAY LINE OF
BAYSHORE HIGHWAY NORTH 67° 58’ 20" EAST 258.00 FEET; THENCE SOUTH 22° 01’
40" EAST 106.00 FEET; THENCE SOUTH 67° 58’ 20" WEST 48.00 FEET; THENCE
NORTH 22° 01’ 40" WEST 35.00 FEET; THENCE SOUTH 67° 58’ 20" WEST 210.00 FEET
TO THE SAID NORTHEASTERLY RIGHT OF WAY LINE OF BAYSHORE HIGHWAY;
THENCE ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE OF BAYSHORE
HIGHWAY NORTH 22° 01’ 40" WEST 71.00 FEET TO THE POINT OF BEGINNING.
JPN: PORTION 026-11-113-34A; 37
APN: PORTION 026-113-470
PARCEL VIII:
BEGINNING AT A POINT NORTH 67° 58’ 20" EAST 237.50 FEET AND NORTH 22° 01’
40" WEST 426.00 FEET FROM THE MOST WESTERLY CORNER OF LOT #1, AS SAID
LOT IS DESIGNATED ON THE MAP ENTITLED, "BEARINT INDUSTRIAL PARK,
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 MARCH 11, 1959, IN BOOK 50 OF MAPS AT PAGE 39; THENCE
FROM SAID POINT OF BEGINNING NORTH 67° 58’ 20" EAST 202.00 FEET; THENCE
SOUTH 14° 45’ 24" EAST 104.00 FEET; THENCE SOUTH 34° 01’ 20” EAST 2.86 FEET;
THENCE SOUTH 67° 58’ 20” WEST 189.51 FEET; THENCE NORTH 22° 01’ 40” WEST
106.00 FEET TO THE POINT OF BEGINNING.
JPN: PORTION 026-11-113-34A; 37
APN: PORTION 026-113-470
EXHIBIT C
Pre-Vesting Tentative Map
Property Ownership
Pre-Vesting Tentative Map Property OwnershipDW Burlingame I Owner, LLCDW Burlingame II Owner, LLCDW Burlingame II Owner B, LLCDW Burlingame III Owner, LLCDW Burlingame II Owner A, LLCExhibit CC-1
EXHIBIT D
Post-Vesting Tentative Map
Property Ownership
Post-Vesting Tentative Map Property OwnershipExhibit DDW Burlingame I Owner, LLCDW Burlingame II Owner, LLCDW Burlingame III Owner, LLCD-1
EXHIBIT E
Temporary and Final Bay Trail
Improvements
Temporary Bay TrailTemporary Bay TrailExhibit E.1E-1
Final Bay TrailFinal Bay TrailExhibit E.2Old Bayshore HighwayAirport Blvd.E-2
EXHIBIT F
Map of Community Benefits
Site plan showing location of 2 layby drop-off s and Commute.org shutt le service routeOld Bayshore HighwayAirport Blvd.Commute.org Shutt le RouteLayby Drop-off Layby Drop-off Exhibit F.1F-1
Public PlazaPublic Plaza Exhibit F.2Old Bayshore HighwayAirport Blvd.F-2
Easton Creek LandscapingLandscaping on North and South sides of Easton Creek (outside top-of-bank boundary) including native, climate-adaptive, non-invasive speciesExhibit F.3Old Bayshore HighwayAirport Blvd.F-3
Publicly Accessible Open Space Public Seating Located throughout the areas outlined above. Exact locations to be determined at the time fi nal development plans are submitt ed.Public Restroom & Blue Light Em. PhoneBlue Light Em. PhoneDrinking FountainPublic ArtOutdoor Fitness AreaDrinking FountainNature Play/Discovery AreaShoreline Exploration AreaBike Share Station and Bike Repair StandExhibit F.4Old Bayshore HighwayAirport Blvd.F-4
Southern AmphitheaterSouthern AmphitheaterExhibit F.5Old Bayshore HighwayAirport Blvd.F-5
EXHIBIT G
Impact Fees
EXHIBIT G
ESTIMATED IMPACT FEES
PUBLIC FACILITIES IMPACT FEE
Public Facilities Impact Fee
1,415,000 SF office
5,000 SF retail $4,802,455.00
Credit for existing uses
100,049 SF hotel / restaurant /retail
130,835 SF office $1,400,588.00
Total Public Facilities Impact Fees: $3,401,867.00
COMMERCIAL LINKAGE FEE
Commercial Linkage Fee
1,415,000 SF office ($28,300,000.00)
5,000 SF retail ($25,000.00) $28,325,000.00
Credit for existing uses
Retail ($128,380.00)
Hotel ($743,730.00)
Office – 50,000 SF or more ($2,616,700.00) $3,488,810.00
Total Commercial Linkage Fees: $24,836,190.00
*Estimates in this Exhibit G are based on approved design and will be finalized at issuance of
permits.
G-1
EXHIBIT H
Annual Review Form
H-1
EXHIBIT H
ANNUAL REVIEW FORM
This Annual Review Form is submitted to the City of Burlingame (“City”) by
_________________ (“Developer”) pursuant to the requirements of California Government Code
section 65865.1 regarding Developer’s good faith compliance with its obligations under the
Development Agreement between the City and Developer dated as of __________, 2022
(“Development Agreement”). All terms not otherwise defined herein shall have the meanings
assigned to them in the Development Agreement:
Annual Review Period: _______________ to _________________.
[This Annual Review Form may specify whether applicable Impact Fees, Processing Fees,
Connection Fees and/or other fees due and payable have been paid during this annual review
period; describe any extension of the Term of the Development Agreement as a result of Force
Majeure Delay pursuant to Section 3.2D of the Development Agreement; summarize specific
strategies to be followed in the coming year intended to facilitate the processing of permits and/or
Project construction; describe whether other applicable Development Agreement obligations were
completed during this annual review period; and/or specify whether Developers have assigned the
Development Agreement in whole or in part or otherwise conveyed the Property or any portion
thereof during this annual review period.]
The undersigned representative confirms that Developer is:
______ In good faith compliance with its obligations under the Development Agreement for this
annual review period.
______ Not in good faith compliance with its obligations under the Development Agreement for
this annual review period, in response to which Developer is taking the actions set forth in the
attachment hereto.
IN WITNESS WHEREOF, Developers have executed this Annual Review Form as of this
____ day of __________________ , 20__.
DEVELOPER:
____________________________ , a
_____________________________
By: ________________________________
Name: ______________________________
Title: __________________________________
EXHIBIT I
Form of Assignment and
Assumption
Page 1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF BURLINGAME
City Hall
501 Primrose Road
Burlingame, CA 94010
Attn: Michael Guina, City Attorney
SPACE ABOVE THIS LINE FOR RECORDER’S USE
EXEMPT FROM FILING FEES PER GOVERNMENT CODE §27383
DEVELOPMENT AGREEMENT ASSIGNMENT
This Development Agreement Assignment (“Agreement”) is effective upon recording and dated
for reference purposes as of ___________, 20___ by and between [INSERT ENTITY OR
ENTITIES ________(the “Assignor”), and _____________, a _________________
(“Assignee”). This Agreement is made and entered into at the consent of the City of
Burlingame, a California municipal corporation (the “City”).
RECITALS
A. In accordance with Government Code section 65864, et seq., the City, acting through
the Burlingame City Council, approved a Development Agreement by and between
Assignors and the City for the redevelopment of approximately 12 acres of real property
located at 1200-1340 Old Bayshore Highway in Burlingame, California known as the
Peninsula Crossing (“Project”), dated as of _________, 2024, by Ordinance No.
__________, adopted by the Burlingame City Council on ______________, 2024 (the
“Development Agreement”).
B. Assignor is the fee owner of that certain real property subject to the Development
Agreement described and identified on Exhibit A attached hereto (the “Property”).
C. The Development Agreement was recorded in the Office of the Recorder for the County
of San Mateo on __________, 2024.
D. The Development Agreement provides that, subject to the terms and conditions
contained in Article 10 therein, Developer (here, Assignor) may transfer and assign its
rights, duties, and obligations under the Development Agreement to a Transferee (here,
Assignee) subject to the written consent of the City. [OMIT THIS RECITAL IF
TRANSFER IS A “DEVELOPER PERMITTED TRANSFER”]
E. Assignor and Assignee have entered into that certain Purchase and Sale Agreement
dated as of _____________, 20___(the “Purchase Agreement”), pursuant to which
Assignor has agreed to sell or transfer to Assignee, and Assignee has agreed to acquire
from Assignor, the Property upon the terms and conditions set forth.
Page 2
F. In connection with the purchase and sale of the Property, and pursuant to Article 10 of
the Development Agreement, Assignor desires to assign all of its interests, rights, duties,
and obligations in and under the Development Agreement applicable to the Property to
Assignee and, in consideration thereof, Assignee is willing to assume all of Assignor’s
interests, rights, duties, and obligations in and under the Development Agreement from
Assignor, all of which may be relied upon by the City.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the City, Assignor and Assignee agree, effective on the Close of Escrow
under the Purchase Agreement (the “Effective Date”), as follows:
1. Assignment of Rights and Responsibilities. Assignor, subject to the terms of Section
10.1 of the Development Agreement[, including without limitation the express written
consent of the City releasing Assignor from all of its obligations under the Development
Agreement,] [OMIT PRIOR PHRASE IF TRANSFER IS A “DEVELOPER PERMITTED
TRANSFER”] hereby sells, transfers, assigns, conveys, and delivers to Assignee all of
Assignors’ interests, rights, duties, and obligations, to, in, and under the Development
Agreement, which are more particularly defined as follows:_____ (collectively, “Rights
and Obligations”).
2. Assumption of Rights and Responsibilities. Assignee[, subject to the express written
consent of the City,[ [OMIT PRIOR PHRASE IF TRANSFER IS A “DEVELOPER
PERMITTED TRANSFER”] hereby assumes all such Rights and Obligations. Assignee
will be solely liable to City for any and all obligations as the Developer under the
Development Agreement arising on and after the Effective Date. Assignee
acknowledges that it reviewed the Development Agreement and agrees to be bound by
the Development Agreement, and that Assignee has received and approved an Estoppel
Certificate from the City in accordance with Section 13.11 of the Development
Agreement.
3. Confirmatory Acts, Instruments. Each party hereby covenants to the other party(ies) that
it will, at any time and from time to time, upon written request therefor, execute and
deliver to such other party(ies), its nominees, successors and/or assigns, any new or
confirmatory instruments and do and perform any other acts which such party(ies), its
nominees, successors and/or assigns may reasonably request in order to fully transfer to
such other party(ies) all rights and obligations of Assignor intended to be transferred and
assigned hereby.
4. Representations and Warranties. Assignor represents and warrants to Assignee, to
Assignor’s actual knowledge, as of the Effective Date, that the Development Agreement
is in full force and effect and that neither Assignor nor the City is in default under the
Development Agreement nor has either Assignor or the City failed to perform any
material terms or conditions of the Development Agreement for which notice has or may
been given under Section 11.1 of the Development Agreement. Assignor makes no
representation or warranties, express or implied, concerning the Development
Agreement, except as expressly provided herein.
Page 3
5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of each of the parties hereto and their respective heirs, successors, executors,
administrators, and assigns.
6. Amendments. No amendment, modification, change or waiver of any term or provision
contemplated under this Agreement shall be valid unless in writing and duly executed by
the parties hereto or their respective successors-in-interest and the City. Any waiver
shall be limited to the circumstances or event specifically referenced in the written waiver
document and shall not be deemed a waiver of any other term or provision hereof or of
the same circumstance or event upon any recurrence thereof.
7. Severability. Any provision of this Agreement which shall prove to be invalid, void, or
illegal shall in no way affect, impair, or invalidate any other provision hereof and such
other provisions shall remain in full force and effect.
8. Indemnity. Assignee hereby consents to and expressly reaffirms any and all indemnities
in favor of the City set forth in the Development Agreement, including, without limitation,
those outlined in Section 9.5.B.4 and Article 12.
9. Choice of Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of California. Any dispute under or in connection with this Agreement
shall be subject to, and the parties hereby submit to, the exclusive jurisdiction of, and
personal jurisdiction within, the state and federal courts located within San Mateo
County, California.
10. Attorneys’ Fees. In the event of any action or proceeding brought by either party against
the other under this Agreement, the prevailing party shall be entitled to recover all costs
and expenses including the actual feels of its reasonable attorneys incurred for
prosecution, defense, consultation, or advice in such action or proceeding.
11. Notice. The Notice Address shall be the ones as described in the Development
Agreement. In the case of a notice of communication to the Assignee:
If to Assignee, to: ______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
If to Assignor, to: ______________________________
______________________________
______________________________
______________________________
______________________________
12. Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which, when taken
Page 4
together, will be deemed to constitute one and the same agreement. It shall not be necessary
in making proof of this Agreement to account for more than one counterpart.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to be executed
as of the date written above.
ASSIGNOR:
[INSERT ASSIGNOR], a Delaware limited liability company
By: __________________________________
__________________________________
__________________________________
[signature must be notarized]
[signatures continue on next page]
ASSIGNEE:
By: __________________________________
__________________________________
__________________________________
[signature must be notarized]
[OMIT CITY APPROVAL IF TRANSFER IS A “DEVELOPER PERMITTED TRANSFER”]
CITY APPROVAL
City of Burlingame, by its signature below, hereby (i) approves, in accordance with Section 10.1
of the Development Agreement, the form of this Agreement, and (ii) effective upon the execution
of this Agreement by Assignor and Assignee and the recordation of this Agreement in the
Official Records of San Mateo County, releases Assignor from all of its obligations under the
Development Agreement.
CITY:
CITY OF BURLINGAME, a municipal corporation
By:
_______, City Manager
Page 5
APPROVED AS TO FORM:
[signature must be notarized]
By:
________, City Attorney
ATTEST:
By:
________, City Clerk
Page 6
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.
ACKNOWLEDGEMENT
STATE OF _______________ )
)
COUNTY OF _____________ )
On _________________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 California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_________________________________ (Seal)