ORDINANCE NO. _______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EAST PALO
ALTO APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF EAST PALO ALTO AND COLUMBIA REIT-UNIVERSITY
CIRCLE, LP RELATING TO THE DEVELOPMENT OF THE UNIVERSITY
CIRCLE PHASE II PROJECT AT UNIVERSITY AVENUE AND
WOODLAND AVENUE
WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Government Code Sections 65864 et seq. (the "Development Agreement Statute") which authorizes cities to enter into agreements for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and WHEREAS, in accordance with the Development Agreement Statute, the City of East Palo Alto enacted Chapter 18.108 of the East Palo Alto Municipal Code (the "Development Agreement Regulations") to implement procedures for the processing and approval of development agreements in accordance with the Development Agreement Statute; and
WHEREAS, Seven Bridges Properties, on behalf of Columbia Realty Trust ("Developer") submitted an application requesting approval of Design Review (DR19-019), Conditional Use Permit (CUP22-001), and Development Agreement, to redevelop an existing landscaped surface parking lot with an approximately 180,000 square foot, six story office building above three levels of below grade parking (the "Project"); and
WHEREAS, Developer proposes to enter into a Development Agreement with the City of East Palo Alto for the purpose of developing the Project in exchange for contributions to the community, as articulated in the Development Agreement; and
WHEREAS, pursuant to the Development Agreement Statute and Development Agreement Regulations, the Planning Commission held a duly noticed public hearing on April 4, 2022, on the proposed Project and found the proposed Development Agreement is consistent with the objectives of the general plan and the Westside Area Specific Plan, in conformity with public convenience and beneficial to the public welfare, and will not adversely impact the orderly development of property; and
WHEREAS, the City Council, after published notice, held a public hearing on May 3, 2022, concerning the proposed Project, and considered the reports and documents presented by City staff, the Planning Commission's recommendations, and the written and oral comments presented at the public hearing.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EAST
PALO ALTO DOES ORDAIN AS FOLLOWS:
SECTION 1. Findings and Determination.
The City Council hereby finds and declares the above recitals are true and correct. The City Council finds the provisions of the Development Agreement are consistent with the City's General Plan and Westside Area Specific Plan as they exist on the effective date of this ordinance, and hereby incorporates the conformity findings from the City Council staff report dated May 3, 2022.
SECTION 2. Approval of Development Agreement.
Based on the findings herein and in the resolution included in the above recitals, the City Council hereby approves the Development Agreement attached as Exhibit 1 and authorizes the City Manager to execute the Development Agreement, subject to such minor, conforming, or clarifying changes consistent with the terms thereof as may be approved by the City Manager prior to execution thereof, and any and all other documents necessary to effectuate the Development Agreement.
SECTION 3. CEQA
The environmental effects of the Project subject to the Development Agreement were analyzed in the Environmental Impact Report (EIR) and Mitigation Monitoring and Reporting Plan, which were certified and approved by the City Council and mitigation measures incorporated into the Project.
SECTION 4. Severability.
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional, invalid or ineffective by a court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional, invalid or ineffective.
SECTION 5. Effective Dates
This Ordinance shall be in full force and effect thirty (30) days after its adoption.
SECTION 6. Publication. The City Clerk is directed to cause publication of this Ordinance as required by Government Code Section 36933.
This Ordinance was introduced at the______________ meeting of the City Council of the City of East Palo Alto.
PASSED AND ADOPTED this _____ day of ______________, 2022 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
_______________________________
Ruben Abrica, Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ __________________________ James Colin, Acting City Clerk Valerie J. Armento, Interim City Attorney
[
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk's Office
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
Exempt from Recording Fee
Pursuant to Government
Code Section 27383
______________________________________________________________________________ Space Above This Line for Recorder's Use Only
DEVELOPMENT AGREEMENT
by and between
THE CITY OF EAST PALO ALTO
and
COLUMBIA REIT - UNIVERSITY CIRCLE, LP
concerning
UNIVERSITY CIRCLE PHASE II
TABLE OF CONTENTS
Page
Page i
ARTICLE I. DEFINITIONS .......................................................................................................... 2
1.1 Definitions................................................................................................... 2
1.2 Capitalized Terms. ...................................................................................... 4 ARTICLE II. GENERAL PROVISIONS....................................................................................... 4
2.1 Developer Representations and Warranties. ............................................... 4
2.2 Relationship of City and Developer............................................................ 5
2.3 Recording.................................................................................................... 5
2.4 Term............................................................................................................ 5 ARTICLE III. DEVELOPMENT OF THE PROJECT SITE......................................................... 5
3.1 Use of the Project Site and Applicable Law. .............................................. 5
3.2 Reservations of Authority........................................................................... 6
3.3 Subsequently Enacted Rules and Regulations. ........................................... 7
3.4 Nexus/Reasonable Relationship Waiver..................................................... 7
3.5 Initiatives and Referenda. ........................................................................... 7
3.6 Compliance With Requirements of Other Governmental Entities. ............ 8
3.7 City's Police Power. .................................................................................... 9
3.8 Subsequent Approvals for the Project Site. ................................................ 9
3.9 Life of Approvals and City Permits............................................................ 9
3.10 Developer Obligations. ............................................................................. 10
3.11 City Obligations........................................................................................ 10 ARTICLE IV. COMMUNITY BENEFITS.................................................................................. 10 ARTICLE V. AMENDMENT OF AGREEMENT AND APPROVALS.................................... 12
5.1 Amendment or Cancellation Procedure. ................................................... 12
5.2 Minor Amendments to Project.................................................................. 12
5.3 Requirement for a Writing........................................................................ 13
5.4 Amendments to Development Agreement Legislation............................. 13
5.5 Amendment of Development Approvals. ................................................. 13
5.6 Effect of Termination on Developer's Obligations. .................................. 13 ARTICLE VI. ANNUAL REVIEW............................................................................................. 14
6.1 Time of Review......................................................................................... 14
6.2 Compliance Letter..................................................................................... 14
6.3 Determination of Good Faith Compliance................................................ 14
6.4 No Waiver................................................................................................. 15
TABLE OF CONTENTS
Page
Page ii
ARTICLE VII. DEFAULT, REMEDIES, AND TERMINATION ............................................. 15
7.1 Notice of Breach. ...................................................................................... 15
7.2 Specific Performance Remedy for Breach................................................ 15
7.3 Termination by Mutual Consent. .............................................................. 16 ARTICLE VIII. ESTOPPEL CERTIFICATE.............................................................................. 16 ARTICLE IX. TRANSFERS, ASSIGNMENTS.......................................................................... 16
9.1 Agreement Runs With the Land. .............................................................. 16
9.2 Right to Assign. ........................................................................................ 17
9.3 Release Upon Assignment. ....................................................................... 17 ARTICLE X. MORTGAGEE PROTECTION............................................................................. 17
10.1 Mortgage Protection.................................................................................. 17
10.2 Mortgagee Not Obligated. ........................................................................ 17
10.3 Notice of Default to Mortgagee; Cure Rights........................................... 18
10.4 No Supersedure......................................................................................... 18 ARTICLE XI. INDEMNIFICATION .......................................................................................... 18
11.1 No Duty of City; Hold Harmless. ............................................................. 18
11.2 Indemnification......................................................................................... 18 ARTICLE XII. NOTICES ............................................................................................................ 19
12.1 Notices. ..................................................................................................... 19 ARTICLE XIII. MISCELLANEOUS .......................................................................................... 20
13.1 Cooperation in the Event of Third-party Legal Challenge. ...................... 20
13.2 Applicable Law and Venue....................................................................... 20
13.3 Severability. .............................................................................................. 20
13.4 Nondiscrimination..................................................................................... 20
13.5 Headings. .................................................................................................. 21
13.6 Agreement is Entire Understanding.......................................................... 21
13.7 Interpretation............................................................................................. 21
13.8 Recordation of Termination...................................................................... 21
13.9 Counterparts.............................................................................................. 21
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is entered as of this ____ day of __________, 2022 by and between the City of East Palo Alto, a California municipal corporation (the "City"), and Columbia REIT - University Circle, LP, a Delaware Limited Partnership (the "Developer"), with reference to the following facts, purposes, and understandings:
RECITALS
A. Section 65864 et seq. of the California Government Code authorizes City to establish procedures for and to enter into binding development agreements with persons having legal or equitable interests in real property located within the City that is the subject of the development agreement.
B. The City's Municipal Code establishes the procedures for review and approval of development agreements in Chapter 18.108. This Agreement is consistent with the City's development agreement provisions.
C. Developer is the fee owner of that certain property consisting of approximately
11.84 acres of land located at 1900, 1950, and 2000 University Circle (Assessor's Parcel Nos. 063-680-020, 063-680-100, 063-680-130, 063-680-150, and 063-680-190) (the "Property") and more particularly described in Exhibit A, attached hereto and incorporated by this reference.
D. Developer desires to develop a portion of the Property, hereinafter referred to as the "Project Site" (defined below), in accordance with the provisions of this Agreement, the Development Approvals (defined below), and other applicable regulations of the City of East Palo Alto and other governmental agencies having jurisdiction over the Project Site.
E. On ____, 2022, City's Planning Commission held a duly noticed public hearing on this Agreement and (i) determined that this Agreement complies in all respects with CEQA, (ii) determined that this Agreement is consistent with the City's General Plan, and, (iii) recommended that the City Council approve this Agreement.
F. The following approvals, entitlements, and findings are being concurrently reviewed and approved by the City (under City Council Resolution No. __) with respect to the Project Site and constitute the "Development Approvals":
(1) The EIR and applicable provisions of the Mitigation, Monitoring, and Reporting Program ("MMRP"),
(2) Design review, and
(3) Conditional Use Permit for Parking Reduction
(4) Lot Split
G. On ___________, 2022, the City examined the environmental effects of the Development Approvals in an Environmental Impact Report (State Clearning House # ___), comprised of a Draft Environmental Impact Report and Final Environmental Impact Report (the "EIR") prepared pursuant to CEQA. On ___, 2022, the City Council reviewed and certified as adequate and complete the EIR by Resolution No. ___ and adopted written findings and approved the MMRP.
H. On ___________, 2022, the City Council held a duly noticed public hearing on this Agreement and considered the Planning Commission's recommendations and testimony and information submitted by City staff, Developer, and members of the public, and found this Agreement to be consistent with the City's General Plan and introduced Ordinance No. ____, approving this Agreement.
I. On ___________, 2022, the City Council adopted Ordinance No. ____ enacting this Agreement.
J. The development of the Project will require ministerial approvals from the City, potentially including, but not limited to, encroachment permits, demolition permits, grading permits, building permits, and certificates of occupancy ("Subsequent Approvals").
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, the following defined terms are used in this Agreement:
1.1.1 "Adopting Ordinance" shall mean City Council Ordinance No. ___ approving and adopting this Agreement.
1.1.2 "Agreement" shall mean this Development Agreement, as the same may be amended from time to time.
1.1.3 "Applicable Law" shall consist of the following:
(a) The General Plan of the City in effect as of the Effective Date; (b) The City's Municipal Code current as of the Effective Date; (c) The Development Approvals and their terms and conditions; (d) All other ordinances, resolutions, rules, regulations, standards, policies, conditions, and specifications applicable to the Project Site in effect on the Effective Date, except as provided in Sections 3.3 and 3.6.
1.1.4 "CEQA" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seq.).
1.1.5 "City" shall mean the City of East Palo Alto, a municipal corporation, and any successor or assignee of the rights and obligations of the City of East Palo Alto hereunder.
1.1.6 "City Council" shall mean the governing body of the City.
1.1.7 "City Law" shall mean, individually, the ordinances, resolutions, rules, regulations, standards, policies, conditions, or specifications of the City.
1.1.8 "Compliance Letter" shall mean a letter submitted by Developer describing Developer's compliance with the terms of the Development Approvals and this Agreement.
1.1.9 "City Planning Commission" shall mean the duly appointed and constituted planning commission of the City.
1.1.10 "Developer" shall mean University Circle Investors, LLC and any successor or assignee to all or any portion of its right, title, and/or interest in and to ownership of all or a portion of the Project.
1.1.11 "Development Agreement Statute" shall mean California Government Code Sections 65864-65869.5, inclusive.
1.1.12 "Director" shall mean the City's Planning Division Manager.
1.1.13 "Effective Date" shall mean the date the Authorizing Ordinance becomes effective.
1.1.14 "General Plan" shall mean the City's 2035 General Plan adopted by the City Council on October 4, 2016, the final version of which was published in March 2017.
1.1.15 "Mortgage" shall mean the mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Project Site, or a part or interest in the Project Site, is pledged as security and contracted for in good faith and for fair value.
1.1.16 "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee.
1.1.17 "Project" shall mean an approximately 180,000 square-foot, six story office building above below-grade parking with net increase of 400 new structured parking spaces (a ratio of 2.5 spaces per 1,000 square feet), an approximately 2,800 square foot space along with an exclusive patio for community use, 14 surface parking spaces serving the community space, and water flow and pressure enhancements to ensure adequate fire suppression measures at the Project Site.
1.1.18 "Property" is defined in Recital C.
1.1.19 "Project Site" shall mean that portion of the Property on which the Project will be constructed and operated, as more particularly described in Exhibit B, attached hereto and incorporated by this reference.
1.1.20 "Term" is defined in Section 2.3.
1.1.21 "Third Party Challenge" shall mean any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement.
1.1.22 "Subsequent Approvals" is defined in Recital J.
1.2 Capitalized Terms. If any capitalized terms contained in this Agreement are not defined above, then any such terms shall have the meaning otherwise ascribed to them in this Agreement.
ARTICLE II.
GENERAL PROVISIONS
2.1 Developer Representations and Warranties.
(a) Developer represents and warrants that, as of the Effective Date of this Agreement, Developer is:
(i) The sole fee owner of the Project Site;
(ii) Duly organized and validly existing under the laws of the State of California;
(iii) Qualified and authorized to do business in the State of California and has duly complied with all requirements pertaining thereto; (iv) In good standing and has all necessary powers under the laws of the State of California to own property and in all other respects enter into and perform the undertakings and obligations of this Agreement.
(b) Developer further represents and warrants:
(i) That no approvals or consents of any persons are necessary for the execution, delivery or performance of this Agreement by Developer, except as have been obtained;
(ii) That the execution and delivery of this Agreement and the performance of the obligations of Developer have been duly authorized by all necessary actions and approvals required under any management and operating agreement for the limited liability company constituting Developer; and
(iii) That this Agreement is a valid obligation of Developer enforceable in accordance with its terms.
2.2 Relationship of City and Developer.
It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer and that the Developer is an independent party and not an agent or partner of City.
City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained in this Agreement or in any document executed in connection with this Agreement shall be construed as making City and Developer joint venturers or partners.
2.3 Recording.
The Parties acknowledge that pursuant to Government Code Section 65864.5 and East Palo Alto Municipal Code Section 18.108.050.B the City Clerk must cause recordation of this Agreement with the County Recorder against the Project Site within ten (10) days after the Effective Date.
However, if the Lot Split has not been completed within this time period, preventing recordation of this Agreement, the City Clerk shall cause recordation of this Agreement within thirty (30) days of receipt of notice of Developer that the Lot Split has been completed.
2.4 Term.
The term of this Agreement (the "Term") shall commence upon the Effective Date and shall terminate seven (7) years following the Effective Date, unless sooner terminated or extended as hereinafter provided. Notwithstanding the above Term, if prior to the seventh (7th) anniversary of the Effective Date, the Developer submits to the City a complete application for a building permit for the Development, including construction drawings, the Term of this Agreement shall be automatically extended for five (5) additional years.
Notwithstanding the foregoing, if this Agreement or the Project defined herein is subject to litigation by a third party, the Term shall be tolled during such time and until the date upon which all such litigation is final and no longer subject to judicial review.
ARTICLE III.
DEVELOPMENT OF THE PROJECT SITE
3.1 Use of the Project Site and Applicable Law.
3.1.1 Subject to Agreement.
The Project Site is hereby made subject to the provisions of this Agreement. All development of, or on, the Project Site, or any portion thereof, shall be undertaken only in compliance with the provisions of this Agreement and with Applicable Law.
3.1.2 Permitted Uses.
The permitted uses of the Project Site, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes shall be governed by Applicable Law.
3.1.3 No Conflicting Enactments.
Except as and to the extent required by state or federal law, and subject to the provisions of Sections 3.3 and 3.7 below, the City shall not impose on the Project or Project Site any change in law that has any of the following effects on the rights provided by City Law and Applicable Law:
3.1.4 Reduces the maximum amount of development space permitted on the Project Site from that permitted by Applicable Law;
3.1.5 Changes any land use designation or permitted use of the Project Site from that shown in Applicable Law;
3.1.6 Changes any development standard for the Project Site including, but not limited to, height limitations and setbacks from that shown in the Applicable law;
3.1.7 Limits or controls the rate, timing, phasing or sequencing of the approval, development, or construction of all or any part of the Project Site except as set forth in the Applicable Law;
3.1.8 Limits or restricts any right or use specifically granted by the Development Approvals; or
3.1.9 Subjects the Project to further discretionary review.
3.2 Reservations of Authority.
The development of the Project will require Subsequent Approvals from the City.
Notwithstanding any other provision of this Agreement, and notwithstanding the provisions of Section 3.2, at the time Subsequent Approvals are applied for, the following regulations and provisions shall apply to those Subsequent Approvals:
3.2.1 Processing fees and charges of every kind and nature imposed by the City, including application, inspection, and monitoring fees, which are in force and effect within the jurisdiction of the City for the class of Subsequent Approvals being applied for.
3.2.2 All taxes, assessments, impact fees, other fees, or other monetary and nonmonetary exactions imposed by the City which are in force and effect within the jurisdiction of the City for the class of Subsequent Approvals being applied for.
3.2.3 Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure, which are in force and effect within the jurisdiction of the City for the class of Subsequent Approvals being applied for.
3.2.4 Regulations governing construction standards and specifications including, without limitation, the City's building code, plumbing code, mechanical code, electrical code, fire code and grading code, all provisions of Title 15 of the East Palo Alto Municipal Code, and all other uniform construction codes which are in force and effect within the jurisdiction of the City for the class of Subsequent Approvals being applied for.
3.3 Subsequently Enacted Rules and Regulations.
The City may during the term of this Agreement apply such newer City Laws that are in force and effect within the jurisdiction of the City for the class of Subsequent Approvals being applied for and which are not in conflict with the terms of this Agreement or the Development Approvals. To the extent any changed City Law is in conflict with the terms of this Agreement or the Development Approvals, the terms of this Agreement or the Development Approvals, as applicable, shall prevail.
3.4 Nexus/Reasonable Relationship Waiver.
Developer consents to, and waives any rights it may have now or in the future, to challenge with respect to the Project or Development Approvals, the legal validity of, the conditions, requirements, policies, or programs required by this Agreement, the Development Approval or City Laws, including, without limitation, any claim that they constitute an abuse of police power, violate substantive due process, deny equal protection of the laws, effect a taking of property without payment of just compensation, or impose an unlawful tax. In the event Developer challenges any newer, subsequently enacted, City Law, as specified in Section 3.4, or any increased or new fee permitted under Section 3.3, then City shall have the right to withhold additional development approvals or permits until the matter is resolved; provided, however, Developer shall have the right to make payment or performance under protest, and thereby receive the additional approval or permit while the matter is in dispute
3.5 Initiatives and Referenda.
3.5.1 If any City Law is enacted or imposed by a citizen-sponsored initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with this Agreement or the Development Approvals, such City Law shall not apply to the Project. The parties, however, acknowledge that the City's approval of this Agreement is a legislative action subject to referendum.
3.5.2 Without limiting the generality of any of the foregoing, no City-adopted moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, building permits, or other Subsequent Approvals shall apply to the Project. Developer agrees and understands that the City does not have authority or jurisdiction over another public agency's authority to grant a moratorium or impose any other limitation that may affect the Project.
3.5.3 The timing, sequencing, and phasing of the development is solely the responsibility of Developer so long as it is consistent with Applicable Law. In particular, the parties desire to avoid the result of Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, where the failure of the parties therein to consider and expressly provide for the timing of the development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement. The parties therefore acknowledge that Developer shall have the right to develop the Project at such time as Developer deems appropriate so long as such development is consistent with Applicable Law.
3.5.4 The City shall cooperate with Developer and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect.
3.6 Compliance With Requirements of Other Governmental Entities.
3.6.1 During the Term, Developer, at no cost to City, shall comply with lawful requirements of, and obtain all permits and approvals required by other local, regional, State and Federal agencies having jurisdiction over Developer's activities in furtherance of this Agreement.
Developer shall pay all required fees when due to Federal, State, regional, or other local governmental agencies other than the City and acknowledges that City does not control the amount of any such fees.
3.6.2 City shall cooperate with Developer in Developer's effort to obtain permits and approvals from Federal, State, regional, and other local governmental agencies, provided that same does not impose any costs on or require the City to incur any costs without compensation or reimbursement, or require the City to amend any of the City's policies, regulations, or ordinances.
3.6.3 As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to the Project Site and Project of changes in laws, regulations, plans, or policies, to the extent that such changes are specifically mandated and required by changes in State or Federal laws or regulations. In the event changes in the law prevent or preclude compliance with one or more provisions of this Agreement, this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations. The parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended as may be necessary to comply with changes in the law, and City and Developer shall agree to such action as may be reasonably required. It is the intent of the parties that any such modification or suspension be limited to that which is necessary and to preserve to the extent possible the original intent of the parties in entering into this Agreement. This Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations. Nothing in this Agreement shall preclude the City or Developer from contesting by any available means (including administrative or judicial proceedings) the applicability to the Project Site or Project of any such State or Federal laws or regulations.
3.6.4 To the extent that any actions of Federal or State agencies (or actions of other governmental agencies, including City, required by Federal or State agencies' actions) have the effect of preventing, delaying, or modifying development of the Project Site or any portion
thereof, City shall not in any manner be liable for any such prevention, delay, or modification.
Such actions include, but are not limited to, flood plain or wetlands designations and actions of Federal, State, or other governmental agencies that require the City to take actions as a result; the imposition of air quality or transportation measures or sanctions and actions of City or other governmental agencies required to be taken in order to be in compliance; or changes to CEQA and actions of City or other governmental agencies required to be taken as a result in order to be in compliance. As a condition to being able to proceed with development, Developer may be required, at its cost, to participate in such regional or local programs and to be subject to such development restrictions as may be necessary or appropriate by reason of actions of Federal, State or other governmental agencies (or action City is required to taken in response).
3.7 City's Police Power.
The parties acknowledge and agree that the limitations, reservations, and exceptions contained in this Agreement are intended to reserve to the City that part of its police power which cannot be limited by contract, and this Agreement shall be construed to reserve to the City that part of its police power which cannot be restricted by contract.
3.8 Subsequent Approvals for the Project Site.
3.8.1 Applications for Subsequent Approvals are anticipated to be submitted to the City by the Developer. Applications for Subsequent Approvals shall be processed and considered in a manner consistent with the rights granted by this Agreement and Applicable Law, including without limitation the Development Approvals.
3.8.2 The City has made a final policy decision that the development of the Project Site consistent with the Development Approvals, is in the best interests of the public health, safety, and general welfare. Accordingly, the City shall not use its authority in considering any application for a Subsequent Approval that is consistent with the Development Approvals to change the policy decisions reflected by the Development Approvals. Nothing herein shall limit the ability of the City to require the necessary reports, analysis, or studies to assist in determining whether the requested Subsequent Approvals are consistent with Applicable Law and this Agreement. City's review of the Subsequent Approvals shall be consistent with this Agreement, including without limitation Section 3.2 of this Agreement.
3.8.3 Any conditions, terms, restrictions, or requirements imposed by the City on Subsequent Approvals shall not prevent development of the Project Site for the uses and to the density and intensity of development included in the Development Approvals.
3.9 Life of Approvals and City Permits.
The terms of (a) any future tentative or parcel map (including vesting maps, map amendments, and lot line adjustments) which may be approved for the Project Site (as provided for in the Subdivision Map Act, Government Code Sections 66410 et seq.), or (b) the Development Approvals and Subsequent Approvals, shall automatically be extended for the longer of the duration of this Agreement (including any Extensions) or the term otherwise applicable to such Development Approval if this Agreement is no longer in effect.
3.10 Developer Obligations.
In addition to any other obligations of Developer set forth herein, in consideration of City entering into this Agreement, Developer has agreed that if Developer commences development of the Project and proceeds to develop the Project Site, such development shall be in conformance with all of the terms, covenants, and requirements of this Agreement and Applicable Law, and Developer shall perform those specific obligations identified in the Development Approval. Developer shall pay when due any and all fees, impact fees, and costs which are lawfully imposed on all or any portion of the Project, whether imposed by City or other agencies. As a material inducement to City to enter into this Agreement, Developer further agrees that, as long as this Agreement is in effect:
3.10.1 The provisions of this Agreement shall govern and control the City Law to be applied to this development of the Project Site over any contrary or inconsistent provisions of the Development Agreement Statute. Developer waives the benefits of any Development Agreement Statute as it may be inconsistent or contrary to the provisions of this Agreement.
3.11 City Obligations.
In addition to any other obligations of City set forth herein, and in consideration of Developer entering into this Agreement, City provides to Developer the assurance that it can proceed with development of the Project for the Term pursuant to the terms and conditions of this Agreement and in accordance with Applicable Law. City acknowledges that the primary purpose of this Agreement is to effectuate the terms of the Development Approvals so that the Project is developed.
ARTICLE IV.
COMMUNITY BENEFITS
4.1 Developer shall provide the following benefits to the City, which are essential consideration to the City, without which the City would not have entered into this Agreement:
4.1.1 Payment for a security camera facing the U. S. 101 pedestrian overcrossing, which will be installed on the Property in a mutually agreed upon location that provides adequate view of the pedestrian overcrossing for security purposes. Such mutually agreed upon location shall not include installation on any of the Four Seasons Hotel buildings or the Four Seasons Hotel parcel located on the Property. The security camera will be procured, installed, operated and maintained by the City. Developer shall provide City reasonable access to the Property so that City may install and maintain the security camera.
4.1.2 A license agreement for pedestrian access through the Property, as shown on Exhibit C; in a form mutually agreed to by the parties.
4.1.3 The area on the ground floor in the eastern corner of the new building, labeled Community Function and shaded in blue on plan sheet A2 of the approved development plans, shall be space reserved for the benefit of the City and the East Palo Alto community and residents (the "Community Function Space").
(a) The Community Function Space shall be approximately 2,800 square feet and will also include an additional outdoor patio of approximately 1,000 square feet.
The Developer shall pay for and construct the Community Function Space as a multi-use space appropriate for City and community groups to use for meetings, events, educational purposes, cultural celebrations, and similar gatherings. The Community Function Space shall be built out to include: finished flooring, drop down or open concept ceilings, bathroom for the exclusive use of guests of the community room, audio and visual equipment, furniture, fixtures and equipment, and other decorations appropriate for the purpose of the space. (b) The Developer shall provide fourteen (14) non-exclusive parking spaces adjacent to the Community Function Space for use of visitors. (c) The Community Function Space may also host art installations of a temporary or permanent nature, provided they do not interfere with the community meeting hosting orientation of the space.
(d) The Community Function Space shall be available for use by the community and City between the hours of 8am and 10pm free of charge for events that conform to the purposes specified in Section 4.1.3(a). Use of the space will be operated and managed by the Developer in consultation with the City.
(e) Reservation for the Community Function Space will be through an online reservation system on Developer's website, and also via a link to Developer's online reservation system on the City's website, via USPS mail, email, or in person requests at the property management office. Reservation priority will be given to the community and City up to ten (10) days before the requested time reservation. Inside of the ten (10) day period, and subject to the reasonable discretion of Developer, community groups, City, residents, tenants of Developer, the Four Seasons Hotel, and its guests and other groups may have access to the Community Function Space on a first come first served basis. In the event the City or a community group makes a request for a time when the Community Function Space is not available, Developer shall give the City or community group priority access to the nearest convenient available time slot. Should the City receive complaints or observe that the Community Function Space is not sufficiently available for community use, Developer and City shall meet to resolve the issues within seven (7) days of the City providing notice to the Developer.
(f) The Developer shall provide, operate, and pay for the reservation system, and all utility, janitorial, and routine maintenance and repair services to the Community Function Space.
(g) No fewer than ninety (90) days before the Developer requests final inspection of the Project, Developer shall demonstrate the functionality of the Community Function Space reservation system for City's approval, which shall not be unreasonably withheld.
4.1.4 Developer shall pay [$75,000] to the City for public art to be installed in the location and dimensions shown on Exhibit D. Developer shall provide payment at grading
permit issuance. City shall allocate the funds to a local 501(c)(3) non-profit organization to, with the City, select the artwork to be installed and provide Developer a reasonable opportunity to review the content of the artwork. Developer shall provide City or its designee with all necessary access rights for installation, maintenance, and removal of the artwork in an agreement with standard terms and conditions. City shall obtain a California Art Protection Act (CAPA) and federal Visual Artist Rights Act (VARA) waivers reasonably acceptable to Developer for the artwork. City shall consider options for installing the artwork in such a way that it may be removed without damage to the artwork or the building in a manner consistent with CAPA and VARA.
4.1.5 Developer shall provide a minimum of forty-six (46) overflow parking spaces for residents of the Woodland Park housing development from the Effective Date through the seventh anniversary of the Certificate of Occupancy issued for Woodland Park Euclid Improvement project (Project No. Design Review Application GP19-01 et al), which is anticipated to construct approximately six hundred five (605) multifamily residential units.
4.1.6 Developer shall install improvements to the existing bus stop mid-block on Manahattan Avenue, near O'Connor Street, as shown in the approved development plans.
4.1.7 Developer shall install a new staircase providing direct access from Manhattan Avenue to the Property, as shown in the approved development plan.
4.1.8 Developer shall install landscape improvements along Manhattan Avenue.
4.1.9 Developer shall widen Woodland Avenue to add a third left-turn lane on eastbound Woodland Avenue at University Avenue for a total of four eastbound lanes, as shown in the approved Project plans.
ARTICLE V.
AMENDMENT OF AGREEMENT AND APPROVALS
5.1 Amendment or Cancellation Procedure.
City and Developer by mutual agreement may terminate or amend the terms of this Agreement, and the amendment or termination shall be accomplished in the manner provided under California law pertaining to development agreements and City of East Palo Alto Municipal Code Section 18.108.060, or any successor provisions thereto.
5.2 Minor Amendments to Project.
Upon the written application of Developer, and mutual consent of the parties, minor modifications and clarifications to the Project may be approved by the Director and submitted to the Planning Commission on the consent calendar, in conformance with East Palo Alto Municipal Code section 18.108.040.A.3. The Director, in consultation with the City Manager, shall determine whether a requested modification may be effectuated pursuant to this Section.
Such minor modifications and changes to the Project shall not be considered to be "amendments" pursuant to Section 5.1, above.
5.3 Requirement for a Writing.
No amendment, minor amendment, or cancellation of this Agreement or any provision hereof shall be effective for any purpose unless adopted in the manner provided under California law and East Palo Alto Municipal Code Chapter 18.108 pertaining to development agreements and specifically set forth in a writing, which refers expressly to this Agreement and is signed by duly authorized representatives of the parties. The City Clerk shall record an appropriate notice of any amendment or cancellation with the County Recorder not later than ten (10) days after the effective date of the action effecting such amendment or cancellation, accompanied by a legal description of the Project Site.
5.4 Amendments to Development Agreement Legislation.
This Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute, as those provisions existed at the date of execution of this Agreement. No amendment or addition to those provisions which would materially affect the interpretation or enforceability of this Agreement shall be applicable to this Agreement unless such amendment or addition is specifically required by the California State Legislature, or is mandated by a court of competent jurisdiction. If such amendment or change is permissive (as opposed to mandatory), this Agreement shall not be affected unless the parties mutually agree in writing, after following the procedures in Section 5.1, to amend this Agreement to permit such applicability.
5.5 Amendment of Development Approvals.
To the extent permitted by local, state, and federal law, any Development Approval may, from time to time, be amended or modified by submittal of an application from the Developer and following the procedures for such amendment or modification contained in the East Palo Alto Municipal Code. Upon any approval of such an amendment or modification, the amendment or modification shall automatically be deemed to be incorporated into the Applicable Law without any further procedure to amend this Agreement.
5.6 Effect of Termination on Developer's Obligations.
5.6.1 Notwithstanding any other provision to the contrary, termination or cancellation of this Agreement or termination of the rights of Developer as to the entire Project Site, or any part of the Project Site, shall not affect any requirement to comply with the Development Approvals, the terms and conditions of any other Subsequent Approval, nor any payments then due and owing to City, nor shall it affect the covenants of Developer specified in Section 5.6.2 below, to continue after the termination or cancellation of this Agreement.
Developer understands and agrees that the Development Approvals may be substantially modified in light of the circumstances resulting from the termination or cancellation of this Agreement or Developer's rights under this Agreement, and Developer shall have no rights to challenge such a modification by reason of this Agreement other than the rights, if any, Developer would have in the absence of this Agreement.
5.6.2 Notwithstanding anything in this Agreement to the contrary, the following provisions of this Agreement shall survive and remain in effect following termination or
cancellation of this Agreement for so long as necessary to give them full force and effect with respect to claims or rights of City arising prior to termination or cancellation:
(a) Section 5.6 (Developer's obligations upon termination or cancellation);
(b) Section 7.2 (Remedies; limitation on damages);
(c) Section 11.2 (Indemnification); and
(d) Section 4.1.3 (Community Function Space).
ARTICLE VI.
ANNUAL REVIEW
6.1 Time of Review.
City and Developer shall review all actions taken pursuant to the terms of this Agreement once annually, within sixty (60) days prior to each anniversary of the Effective Date, during each year of the Term unless the City and Developer agree in writing to conduct the review at another time.
Review of compliance with the terms of this Agreement shall be conducted by the Director.
Pursuant to East Palo Alto Municipal Code Section 18.108.070, Developer shall initiate the review by filing an application with the City and provide all the documents and information necessary for the City to complete the annual review and make a determination of whether Developer is in compliance.
6.2 Compliance Letter.
Before each anniversary of the Effective Date, Developer shall submit a letter ("Compliance Letter"), along with all necessary supporting documentation, to the Director describing Developer's compliance with the terms of the Development Approvals and this Agreement during the preceding year. The Compliance Letter shall include a statement that the Compliance Letter is submitted to the City pursuant to the requirements of Government Code Section 65865.1 and of the City's regulations on Development Agreements.
6.3 Determination of Good Faith Compliance.
Within thirty (30) days after receipt of the Compliance Letter, the Director shall determine whether, for the year under review, Developer has demonstrated good faith substantial compliance with the terms of this Agreement. If the Director finds and determines that Developer has complied substantially with the terms of this Agreement, or does not determine otherwise within thirty (30) days after delivery of the Compliance Letter, the annual review shall be deemed concluded and this Agreement shall remain in full force and effect. Upon its determination of compliance, the Developer may request a recordable certificate confirming Developer's compliance through the year under review. Developer may record the certificate with the San Mateo County Recorder's Office.
If the Director initially determines the Compliance Letter to be inadequate in any respect, the Director shall provide notice to that effect to Developer and schedule a public hearing. If after a duly noticed public hearing, the City Council finds and determines, on the basis of substantial evidence, that Developer has not complied substantially in good faith with the terms of this Agreement for the year under review, the City Council shall give written notice thereof to Developer specifying the noncompliance. If Developer fails to cure the noncompliance within a reasonable period of time as established by the City Council, but in no event less than 60 days from the date of receipt of such notice, the City Council, in its discretion, may (a) grant additional time for Developer's compliance, or, following the hearing, modify this Agreement to the extent necessary to remedy or mitigate the noncompliance, (b) may modify this Agreement pursuant to the provisions of Section 8 below, or (c) terminate the Agreement pursuant to Article VI below.
6.4 No Waiver.
Failure of City to conduct an annual review shall not constitute a waiver by City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any failure to conduct an annual review. City does not waive any claim of defect or breach by Developer if, following periodic review pursuant to this Article V, City does not propose to modify or terminate this Agreement.
ARTICLE VII.
DEFAULT, REMEDIES, AND TERMINATION
7.1 Notice of Breach.
Failure by either party to perform any material term or provision of this Agreement shall constitute a default hereunder, provided that the party alleging the default shall have given the other party advance written notice thereof and sixty (60) days within which to cure the condition, or, if the nature thereof is such that it cannot be cured within that time, the party receiving notice shall not be in default hereunder if the party promptly commences to perform its obligations hereunder and thereafter diligently completes performance. Written notice hereunder shall specify in detail the nature of the obligation to be performed by the party receiving notice.
7.2 Specific Performance Remedy for Breach.
It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under, or with respect to, this Agreement or the application thereof.
Developer and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Developer or City for such efforts. City and Developer agree that damages would not be an adequate remedy if either City or Developer fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate Developer if City fails to carry out its obligations under this Agreement
or to compensate City if Developer fails to carry out its obligations under this Agreement.
Specific performance is the only remedy available to the parties under this Agreement.
7.3 Termination by Mutual Consent.
This Agreement may be voluntarily terminated in whole or in part by the mutual consent of the parties or their successors in interest, in the sole and absolute discretion of each as to its consent.
Such mutual consent to terminate shall be evidenced in writing.
ARTICLE VIII.
ESTOPPEL CERTIFICATE
Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (a) this Agreement is in full force and effect and is a binding obligation of the parties, (b) this Agreement has not been amended or modified or, if so amended or modified, identifying the amendments or modifications, and (c) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe the nature of any defaults. The party receiving a request under this Article VIII shall execute and return the certificate within thirty (30) days following receipt of the request. The Director shall be authorized to execute any certificate requested by Developer. Developer and City acknowledge that a certificate hereunder may be relied upon by transferees and Mortgagees. Developer shall pay the City's reasonable costs involved in providing such estoppel certificate.
ARTICLE IX.
TRANSFERS, ASSIGNMENTS
9.1 Agreement Runs With the Land.
9.1.1 This Agreement and all of its provisions, agreements, rights, powers, standards, terms, covenants and obligations, shall be binding upon the parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons or entities acquiring the Project Site or any portion thereof, or any interest therein, whether by sale, operation of law, or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns.
9.1.2 All of the provisions of this Agreement shall be enforceable during the Term as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including, but not limited to Section 1468 of the Civil Code of the State of California. Each covenant to do or refrain from doing some act on the Project Site hereunder, (a) is for the benefit of the Project Site and is a burden upon the Project Site, (b) runs with the Project Site, and (c) is binding upon Developer and each successive owner during its ownership of the Project Site or any portion thereof, and each person or entity having any interest in the Project Site. Every person who now or hereafter owns or acquires any right, title or interest in or to any portion of the Project Site is and shall be conclusively deemed to have consented and
agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project Site.
9.2 Right to Assign.
9.2.1 Developer shall have the right to assign its rights to develop the Project Site (by sale, transfer, or otherwise) to any person, business entity, or other similar entity ("Assignee"). Any such transfer shall be deemed to include an assignment of all rights, duties, and obligations created by this Agreement with respect to all or any portion of the Project Site.
9.3 Release Upon Assignment.
9.3.1 Upon the express written assumption by the Assignee of Developer's rights and interests under this Agreement (the "Assignment Agreement"), Developer shall be free from any and all liabilities accruing on or after the date of assignment with respect to those obligations assumed by the Assignee pursuant to the Assignment Agreement, except to the extent that Developer is in default with respect to any and all obligations at the time of the proposed transfer.
ARTICLE X.
MORTGAGEE PROTECTION
10.1 Mortgage Protection.
This Agreement shall be superior and senior to any lien placed upon the Project Site or any portion of the Project Site after the date of recording of this Agreement, including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach of this Agreement 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 (including but not limited to City's remedies to terminate the rights of Developer (and its successors and assigns) under this Agreement, to terminate this Agreement, and to seek other relief as provided in this Agreement) shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Project Site, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. Notwithstanding the foregoing and for the avoidance of doubt, any Mortgagee who takes title to the Project Site or any part of the Project Site shall be entitled to the benefits arising under this Agreement.
10.2 Mortgagee Not Obligated.
Notwithstanding the provisions of Section 10.1 above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements on the Project Site, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Project Site to any uses or to construct any improvements on the Project Site other than those uses or improvements provided for or authorized by this Agreement, or otherwise under Applicable Law. City shall permit the Mortgagee to succeed to the rights and obligations of Developer under this Agreement. Upon (i)
any such succession to the rights and obligations of Developer, and (ii) taking possession of the Project Site, Mortgagee agrees to take commercially reasonable efforts to promptly cure all continuing, non-monetary defaults by Developer hereunder that are reasonably susceptible of being cured.
10.3 Notice of Default to Mortgagee; Cure Rights.
If City receives a written notice from a Mortgagee, Developer, or any approved Assignee requesting a copy of any notice of default given Developer or any approved Assignee and specifying the address for service, then City shall deliver to the Mortgagee at Mortgagee's cost (or Developer's cost), concurrently with service to Developer, any notice given to Developer with respect to any claim by City the Developer is in default under this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure any such default within ten (10) business days after receiving any notice of default with respect to a monetary default and within thirty (30) days after receiving any notice of default with respect to a non-monetary default. If the Mortgagee can only remedy or cure a non-monetary default by obtaining possession of the Project Site, then the Mortgagee shall have the right, but not an obligation, to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non-monetary default within thirty (30) days after obtaining possession or such longer period of time as is reasonably necessary to remedy or cure the default, provided the Mortgagee promptly commences to cure the non-monetary Default within thirty (30) days and diligently prosecutes the cure to completion.
10.4 No Supersedure.
Nothing in this Article X shall be deemed to supersede or release a Mortgagee or modify a Mortgagee's obligations under any subdivision improvement agreement or other obligation incurred with respect to the Project Site outside this Agreement, nor shall any provision of this Article X constitute an obligation of City to the Mortgagee, except as expressly set forth in this Agreement.
ARTICLE XI.
INDEMNIFICATION
11.1 No Duty of City; Hold Harmless.
It is specifically understood and agreed by the parties that the development contemplated by this Agreement is a private development, that City has no interest in or responsibility for or duty to third persons concerning any of said improvements, and that Developer shall have full power over and exclusive control of the Project Site subject only to the limitations and obligations of Developer under this Agreement.
11.2 Indemnification.
Developer shall indemnify, defend (with counsel approved by the City), and hold harmless City and its elected and appointed representatives, officers, agents, and employees from any loss, liability, fines, penalties, forfeitures, costs, and damages (whether in contract, tort, or strict
liability, including but not limited to personal injury, death at any time, and property damage) and from any and all claims, demands, and actions in law or equity (including reasonable attorneys' fees and litigation expenses) directly or indirectly arising or alleged to have arisen out of or in any way related to: (a) the approval of this Agreement or the Development Approvals; (b) any development or use of the Project Site under this Agreement or the Development Approvals; and (c) any actions or inactions by the Developer or its contractors, subcontractors, agents, or employees in connection with the construction or improvement of the Project Site and the Project; excepting to the extent arising from the gross negligence, intentional acts, willful misconduct or arbitrary or capricious behavior of City, its elected and appointed representatives, officers, agents, employees, contractors or subcontractors.
This indemnification and hold harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operations referred to in this Section 11.2, regardless of whether or not City prepared, supplied, or approved plans or specifications for the Project Site, but does not apply to damages and claims for damages caused by City with respect to public improvements and facilities after City has accepted responsibility for them.
ARTICLE XII.
NOTICES
12.1 Notices.
Formal written notices, demands, correspondence and communications between City and Developer shall be sufficiently given if: (a) personally delivered; or (b) dispatched by next day delivery by a reputable carrier such as Federal Express or DHL to the offices of City and Developer indicated below, provided that a receipt for delivery is provided; or (c) if dispatched by certified mail, postage prepaid, to the offices of City and Developer indicated below. Such written notices, demands, correspondence, and communications may be sent in the same manner to such persons and addresses as either party may from time-to-time designate by notice as provided in this Section. A copy of the notice should be sent via e-mail as well to the email addresses provided in this Section.
CITY: City Manager
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
email:
With copy to: City Attorney
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
email:
DEVELOPER: David S. Dowdney
Senior Vice President
Columbia Property Trust
650 California Street, Suite 200
San Francisco, CA 94108
With copy to : Sigrid R. Waggener, Esq.
Manatt, Phelps & Phillips, LLP
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
ARTICLE XIII.
MISCELLANEOUS
13.1 Cooperation in the Event of Third-party Legal Challenge.
In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement ("Third Party Challenge"), the parties shall mutually cooperate with each other relating to the Third Party Challenge.
13.1.1 Invalidity.
If any part of this Agreement is held by a court of competent jurisdiction to be invalid or unlawful, the parties shall: use their best efforts to cure any inadequacies or deficiencies identified by the court in a manner consistent with the express and implied intent of this Agreement, and then to adopt or re-enact such part of this Agreement as necessary or desirable to permit implementation of this Agreement.
13.2 Applicable Law and Venue.
This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any action at law or in equity arising under this Agreement or brought by any Party for the purposes of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the County of San Mateo, or the United States District Court for the Northern District of California
13.3 Severability.
Except as otherwise provided herein, if any provision(s) of this Agreement is (are) held invalid, the remainder of this Agreement shall not be affected except as necessarily required by the determination of invalidity, and shall remain in full force and effect unless amended or modified by mutual consent of the parties.
13.4 Nondiscrimination.
Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, ancestry, or national origin in the development of the Project Site in furtherance of this Agreement. The foregoing covenant shall run with the land.
13.5 Headings.
The language in this Agreement in all cases shall be construed as a whole and in accordance with its fair meaning. Section and subsection headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Agreement.
13.6 Agreement is Entire Understanding.
This Agreement is executed in one original, which constitutes the entire understanding and agreement of the parties. The parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof, except representations set forth herein, and each party acknowledges that it has relied on its own judgment in entering this Agreement. The parties further acknowledge that, except for those contained in Applicable Law, all statements or representations that heretofore may have been made by either of them to the other are void and of no effect, and that neither of them has relied thereon in its dealings with the other. To the extent that there is any conflict between the Applicable Law and this Agreement, this Agreement shall govern the parties' respective rights and obligations.
13.7 Interpretation.
Each party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement.
Accordingly, neither party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the Agreement.
13.8 Recordation of Termination.
Upon completion of performance of the parties or termination of this Agreement, a written statement acknowledging such completion or termination shall be recorded by City in the Official Records of San Mateo County, California.
13.9 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but the counterparts together shall constitute only one Agreement.
IN WITNESS HEREOF, the parties have executed this Agreement as of the Effective Date.
CITY OF EAST PALO ALTO,
a municipal corporation
By: __________________________
Mayor
Dated: __________________________
[DEVELOPER]
a ______
By: __________________________
Dated: __________________________
ATTEST:
________________________________
City Clerk
Dated: __________________________
APPROVED AS TO FORM:
____________________________________
City Attorney
Dated: __________________________
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, 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.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, 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.
______________________________________
Name: ______________________________
Notary Public
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.
A-1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
April 27, 2022
Project No. 20150084-50
BKF ENGINEERS
255 Shoreline Drive, Suite 200, Redwood City, CA 94065 | 650.482.6300
EXHIBIT A
SUBJECT PARCEL DESCRIPTION
All that real property situate in the City of East Palo Alto, County of San Mateo, State of California, described as follows:
Being a portion of Parcel 1 as said parcel is shown on that certain “UNIVERSITY CIRCLE PARCEL MAP” in process with the City of East Palo Alto. Said parcel is also subject to future subdivision. See the plat attached hereto as sheet 2, Exhibit A.
This description is being provided as an exhibit for attachment to a Development Agreement. This is not being provided or prepared for conveyance of any title, easement, or interest of or over the land depicted hereon.
See referenced Parcel Map for particulars.
U N I V E R S I T Y A V E N U E
PARCEL 1B
(SUBJECT OF FUTURE SUBDIVISION) W O O D L A N D A V E N U E PARCEL 1A
SUBJECT PARCEL
(SUBJECT OF FUTURE SUBDIVISION)
JOB NO.
BY APPR. DATE
SUBJECT
OF
255 SHORELINE DR.,
SUITE 200
REDWOOD CITY, CA 94065
(650) 482-6300
www.bkf.com
B-1
EXHIBIT B
PROJECT SITE
C–1
EXHIBIT C
PEDESTRIAN ACCESS
D–1
EXHIBIT D
ARTWORK LOCATION