HomeMy WebLinkAbout2010-11-10 e-packet~o~~x sgNF~ AGENDA
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REGULAR MEF,TING
MUNICIPAL SERVICES BUILDING
COMMUNITY ROOM
WEDNESDAY, NOVEMBER 10, 2010
6:30 P.M.
PEOPLE OF SOUTH SAN FRANCISCO
You are invited to offer your suggestions. In order that you may know our method of conducting Agency
business, we proceed as follows:
The regular meeting of the Redevelopment Agency is held on the second Wednesday of each month at
6:30 p.m. in the Municipal Services Building, Community Room, 33 Arroyo Drive, South San Francisco,
California.
Public Comment: For those wishing to address the Board on any Agenda or non-Agendized item, please
complete a Speaker Card located at the entrance to the Comiriunity Room and submit it to the Clerk.
Please be sure to indicate the Agenda Item # you wish to address or the topic of your public comment.
California law prevents Redevelopment Agency from taking action on any item not on the Agenda
(except in emergency circumstances). Your question or problem. rr~ay be referred to staff for investigation
and/or action where appropriate or the matter may be placed on a future Agenda for more comprehensive
action or a report. When your name is called, please come to the podium, state your name and address for
the Minutes. COMMENTS ARE LIMITED TO THREE (3) MINiJTES PER SPEAKER. Thank you for
your cooperation.
The Clerk will read successively the items of business appearing on the Agenda. As she completes
reading an item, it will be ready for Board action.
MARK N. ADDIEGO
Chair
KEVIN MULLIN
Vice Chair
PEDRO GONZALEZ
Boardmember
RICHARD A. GARBARINO
Boardmember
RICHARD BATTAGLIA
Investment Officer
BARRY M. NAGEL
Executive Director
KARYL MATSUMOTO
Boardmember
KRISTA MARTINELLI-LARSON
Clerk
S'IBVEN T. MATTAS
Counsel
PLEASE SILENCE CELL PHONE;S AND PAGERS
HEARING ASSISTANCE EQUIPMENT IS AVAILABLE FOR USE BY THE HEARING-IMPAIRED AT REDEVELOPMENT AGENCY MEETfNGS
In accordance with California Government Code Section 54957.5, any writing or document that is a public record, relates to an open
session agenda item, and is distributed less than 72 hours prior to a regular meeting- will be made available for public inspection in the
City Clerk's Office located at City Hall. If, however, the document or writing is not distributed until the regular meeting to which it
relates, then the document or writing will be made available to the public at the location of the meeting, as listed on this agenda. The
address of City Hall is 400 Grand Avenue, South San Francisco, California 94080.
CALL TO ORDER
ROLL CALL
AGENDA REVIEW
PUBLIC COMMENTS
CONSENT CALENDAR
Motion to approve the minutes of October 13, 2010.
2. Motion to approve expense claims of November 10, 2010.
ADMINISTRATIVE BUSINESS
3. Resolution authorizing the Executive Director to execute a Purchase and Sale Agreement for
217-219 Grand Avenue and a vacant lot with APN C-12-316-060 in the amount of $1.5 million
and authorizing a Budget Amendment for expenditure of tax increment funds.
CLOSED SESSION
4. Real Property Negotiations
Pursuant to Government Code Section 54956.8
Related to:
-201 Grand Avenue
Agency Negotiator: Marty Van Duyn
Owner: City of South San Francisco Redevelopment Agency
-207 Grand Avenue:
Owner: Newman
-217-219 Grand Avenue
Owner: Pasco
-Lot with APN# 012-316-060
Grand Avenue
Owner: Pasco
ADJOURNMENT
REGULAR REDEVELOPMENT AGENCY MEETING NOVEMBER 10, 2010
AGENDA PAGE 2
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RDA AGENDA ITEM # 1
MINUTES y.~
REGULAR MEE7CING
REDEVELOPMENT AGENCY
CITY OF SOUTH SAN FRANCISCO
MUNICIPAL SERVICES BUILDING
COMMUNITY ROOM
WEDNESDAY, OCTOBER 13, 2010
CALLED TO ORDER:
ROLL CALL:
AGENDA REVIEW
None.
PUBLIC COMMENTS
None.
CONSENT CALENDAR
6:31 p.m.
a ~T
Present: Boardmembers Garbarino, Gonzalez and
Matsumoto, Vice Chairman Mullin and
Chairman Addiego.
Absent: None.
Motion to approve the minutes of September 8, 2010.
2. Motion to approve expense claims of October 13, 2010.
Motion- Boardmember Gonzalez/Second- Boardmember Garbarino: to approve the
Consent Calendar. Unanimously approved by voice vote.
ADMINISTRATIVE BUSINESS
3. Resolution No. 20-2010 authorizing the expenditure of tax increment funds for the
rehabilitation of 339 Commercial Avenue, adopting findings required by Health and
Safety Code Section 33445, and authorizing award of a contract for the project to
HARGENS, INC in an amount not to exceed $85,503.,4>.
Manager Fragoso presented the staff report recommending approval of a resolution
authorizing certain expenditures related to improvements required at agency owned
property located at 339 Commercial Avenue. She reminded t:he Board that it had approved
a similar expenditure two (2) years ago for an adjacent duplex. At that time the units
presently at issue were in good condition. She explained stafi~ inspects residential
properties on a yearly basis and sometimes more often if there; are problems or other
concerns. She noted that mold and mildew developed quickly and had not been observed
during previous inspections. She advised the Board that it had. been 10 years since the units
were initially remodeled and further explained the units were occupied by large families
and had a single restroom. Manager Fragoso explained that despite competitive economic
circumstances, not a single contractor had submitted a bid for the project. Accordingly, the
Economic and Community Development Department, was allowed the opportunity to
negotiate for the required services. The Department had secured a price of roughly
$85,000 total, which included the work for both units. A complete remodel of each
bathroom and replacement of a good amount of sheet rock would be performed. Carpeting
would be removed and redone and painting would be done throughout the entirety of both
units.
Boardmember Matsumoto questioned whether the opportunity to present energy efficient
improvements was reviewed.
Manager Fragoso advised the possibility of tankless water heaters would be considered in
the future. She observed the units are twice the cost traditional water heaters, but save in
utility costs over time.
Boardmember Gonzalez cautioned that tenants should be reporting mildew and mold when
observed as opposed to painting over it.
Manager Fragoso stated that a tenant education program had been undertaken over the past
two (2) years. She hoped this program would start to yield benefits.
Boardmember Garbarino raised concerns over reports related to imported sheetrock.
Manager Fragoso advised she would be meeting with the con~tra.ctor shortly and would
discuss these issues at that time.
Chairman Addiego commented on the amount of resources be;in.g used to abate the mold.
He observed that mold is a curse of our area. He cautioned against acquisition of older
properties in the future due to their tendency to exhibit mold.
Boardmember Matsumoto questioned who managed the properties at issue.
Manager Fragoso advised she had recently taken over management of the properties from
North Peninsula Neighborhood Services.
Motion- Boardmember Garbarino/Second- Boardmember Gonzalez: to approve
Resolution No. 20-2010. Unanimously approved by voice vote,.
REGULAR REDEVELOPMENT AGENCY MEETING SEPTEMBER 8, 2010
MNUTES PAGE 2
ADJOURNMENT
Being no further business, Chairman Addiego adjourned the meeting at 6:48 p.m.
Approved:
Mark N. Addiego, Chairman
City of South San Francisco
REGULAR REDEVELOPMENT AGENCY MEETING SEPTEMBER 8, 2010
MINUTES PAGE 3
Submitted by:
Listing of RDA Payments for Council Review
5°~~x"S-~'~'
o
~+ "'
J O
I certify that the payments shown on this payment register are
accurate and sufficient funds were available for payment.*
DATED I i" - ~ ~~ C
FINANCE DIRECTOR
*Note: Items below do not include payroll related payments
Checks:
Date Amount
10/15/10
10/20/10
10/22/10
10/27/10
10/29/10
11 /03/10
(8.73)
5,406.67
19,325.60
60, 646.03
61,927.55
14,352.56
Electronic Pavments:
Date Amount To
Total Pavments $ 161,649.68
RDA A GENDA ITEM # 2
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Redevelopment Agency
Staff Report
RDA AGENDA ITEM # 3
DATE: November l0, 2010
TO: Redevelopment Agency Board
FROM: Marty Van Duyn, Assistant Executive Director
SUBJECT: RESOLUTION AUTHORIZING THE EXECUTIVE DIRECTOR TO
EXECUTE A PURCHASE AND SALE AGREEMENT FOR 217-219
GRAND AVENUE AND A VACANT LOT APN O12-316-060 IN THE
AMOUNT OF $1.5 MILLION AND AUTHORIZING A BUDGET
AMENDMENT FOR EXPENDITURE OF TAX INCREMENT FUNDS.
RECOMMENDATION
It is recommended that the Redevelopment Agency Board adopt a Resolution authorizing the
Executive Director to execute a Purchase and Sale Agreemient for 217-219 Grand Avenue
and a vacant lot APN 012-316-060 in the amount of $1.5 million and authorizing a budget
amendment for expenditure of tax increment funds.
BACKGROUND/DISCUSSION
The Redevelopment Agency has secured the right to purchase four parcels on the 200 block of Grand
Avenue. It is also negotiating with the owner of another parcel in the immediate block. Combined
with property the Agency already owns, the lot assemblage wound create a 27.200 square foot parcel
that would be ideal for a major development in the Downtown.
If successful in acquiring all of the proposed parcels, the Agency would be able to develop amixed-
useproject containing 42 to 45 units and 14,000 square feet of retail (see Exhibit 1). Parking for such
a project would be below grade and provide a minimum of one space per unit with additional spaces
as required by market conditions and parking district. As conceived.. a project can be developed in
one or two phases. Upon acquiring the properties the Agency currently has a purchase option on, the
Agency would be able to develop phase one of the project which could consist of 20-25 units and
7,000 square feet of retail.
At this time, staff is recommending that the Redevelopment Agency Board authorize the Executive
Director to execute a pm-chase and sale agreement for the acquisition of 217-219 Grand Avenue and
the vacant lot next to 225 Grand Avenue for $1,500,000. These are lots 3. 4 and 6 in the attached
Exhibit 2. The appraisal report the Agency commissioned indicates the agreed upon price is a fair
purchase price for the combined properties.
Staff Report
Subject: Purchase and Sale Agreement for 217-219 Grand Avenue and a Vacant Lot
Page 2
The property at 217-2 ] 9 Grand Avenue contains two buildings. Ben Tre Restaurant and Mom's Tofu
occupy the building on Grand Avenue. The rear building contains a vacant two-bedroom residential
unit on the second floor and garage and basement on the ground floor. The property currently
generates over $5,000 per month in rental income. The building is in fairly good condition and the
City's Assistant Building Official has found it to be structurally sound.
In addition to the appraisal and the inspection by the City's Assistant Building Off ciaL staff is also
working with an environments] consultant to complete a Phase I Environmental Report and with a
title company to obtain title reports on all of the lots. The environrr-ental consultant has completed his
investigation and has reported that he did not find any adverse conditions on the site. The written
report, however; will not be available for staff s review until the Board`s meeting date. Therefore. at
the meeting staff will inform the Board as to whether the report and the property are in satisfactory
condition as expected. or whether any delay is warranted.
With respect to lot 2, staff has also secured the right to purchase the property and will be bringing a
purchase and sale agreement to the Board on December 8. With respect to lot 5, the Agency will
continue to monitor the building and maintain communication with the owner to potentially acquire
this building in the future. As noted earlier. the Agency does not have to acquire lot 5 in order to
develop a successful project on lots l-4.
In conclusion. the proposed lot assemblage and project, in either one phase or two phases, provides
the Redevelopment Agency with an opportunity to develop a significant project in the Downtown.
This project along with the project at 4l 8 Linden and potentially the Giffi-a building, will allow the
Agency to make significant progress in revitalizing the Downtown.
FUNDING
Funds are available to acquire the proposed parcels upon Agency Board approval of a budget
amendment to the Agency's Operating Budget
CONCLUSION
It is recommended that the Redevelopment Agency Board adopt a Resolution authorizing the
Executive Director to execute a Purchase and Sale Agreement for 2l 7-219 Grand Avenue and a
vacant lot APN Ol 2-316-060 in the amount of $ l .5 million and authorizing a budget amendment
for expenditure of tax increment funds.
Staff Report
Subject: Purchase and Sale Agreement for 217-219 Grarid Avenue and a Vacant Lot
Page 3
By: Approved: ~~ ` ~~ `~
Marty Van Duyn Barry M. Nagel
Assistant Executive Director Executive Director
Attachment: Resolution
Purchase and Sale Agreement
Exhibit 1
Exhibit 2
BMN:MVD:AFS
RESOLUTION NO
REDEVELOPMENT AGENCY, CITY OF SOiJT'H SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE
AND SALE AGREEMENT, AND APPROVING A BUDGET
AMENDMENT AUTHORIZING THE EXPENDITURE OF TAX
INCREMENT FUNDS FOR THE ACQUISITION OF PROPERTY
WHEREAS, the Redevelopment Agency of the City of South San Francisco
("Agency") is a redevelopment agency formed, existing and. exercising its powers pursuant to
California Community Redevelopment Law, Health and Safety Code Section 33000 et seq.
("CRL„).
WHEREAS, by Ordinance No. 1056-89, the City Council of the City of South San
Francisco ("City Council") established the Downtown/Central Redevelopment Project (the
"Project Area") and adopted the Redevelopment Plan for the Project Area (as subsequently
amended, the "Redevelopment Plan");
WHEREAS, Agency staff have been in negotiations with the owner of real property
located in the Project Area at 217-219 Grand Avenue (the "Property");
WHEREAS, as described in the Staff Report accompanying this Resolution, acquisition
of the Property will assist the Agency in implementing the goals of the Redevelopment Plan and
the Implementation Plan adopted in connection therewith;
WHEREAS, the owner of the Property and the Agency have negotiated a purchase and
sale agreement ("Purchase and Sale Agreement") a copy of which has been provided to the
Agency governing board and is on file with the Agency Secretary; and
WHEREAS, the Purchase and Sale Agreement provides for a purchase price of One
Million Five Hundred Thousand Dollars ($1,500,000) ("Purchase Price").
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of
South San Francisco that it hereby:
1. Approves a budget amendment to transfer One Million Five Hundred Thousand Dollars
($1,500,000) from the fund to the __ fund.
2. Approves the expenditure of tax increment funds in the amount of One Million Five
Hundred Thousand Dollars ($1,500,000) for the acquisition of the Property.
l 542637.1 1
3. Approves the Purchase and Sale Agreement and authorizes the Executive Director to
execute such agreement substantially in the form presented to the Agency Board with such
modifications as may be approved by the Executive Direactor in consultation with Agency
Counsel.
4. Authorizes the Executive Director to undertake such. other actions and to execute such
other instruments as may be necessary or desirable in order to carry out the intent of this
Resolution, including without limitation, the execution acid recordation of a Certificate of
Acceptance for the Property and the procurement of a policy of title insurance.
I hereby certify that the foregoing Resolution was regularly introduced and adopted by the
Redevelopment Agency of the City of South San Francisco at a meeting held on the day
of , 2010 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
Agency Secretary
1542637.1 2
PURCHASE AND SALE AGREE:MENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into
effective as of 2010 (the "Effective Date") by and between
an individual ("Seller") and the Redevelopment Agency
of the City of South San Francisco, a public body corporate and politic ("Buyer"). Seller and
Buyer are hereinafter referred to as the "Parties."
WHEREAS, Seller is the owner of that certain real property in San Mateo County,
California, located at 217 Grand Avenue and a vacant lot immediately west of 225 Grand
Avenue in the City of South San Francisco, known as San Mateo County Assessor's Parcel Nos.
012-316-090, 012-316-080, and 012-316-060, and mare :particularly described in Exhibit A
attached hereto and incorporated herein by this reference (the `'`Land");
WHEREAS, in accordance with the terms and conditions contained herein, Buyer
desires to purchase, and Seller desires to sell to Buyer all of Seller's right, title and interest in
and to: (i) the Land, (ii) all improvements located on the Land ("Improvements"), (iii) all non-
moveable equipment and fixtures located on the Land or in tl~-e Improvements, (iv) the personal
property identified in this Agreement or the Exhibits hereto, and (v) all easements,
hereditaments, and appurtenances belonging to or inuring to the benefit of Seller and pertaining
to the Land (all of the foregoing collectively hereinafter, the "Property");
WHEREAS, the Property is located within the Downtown/Central Redevelopment
Project Area (the "Project Area") and Buyer has determined that acquisition of the Property
will facilitate the implementation of the Redevelopment Plan for the Project Area; and
WHEREAS, Seller and Buyer have agreed to execute this Agreement in lieu of
condemnation.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows.
1. Agreement to Sell and Purchase. Seller agrees to sell the Property to Buyer, and
Buyer agrees to purchase the Property from Seller, subject to the terms and conditions set forth
in this Agreement.
2. Purchase Price. The purchase price for the Property shall be One Million Five
Hundred Thousand Dollars ($1,500,000) ("Purchase Price''').
3. Conveyance of Title. At the close of escrow for conveyance of the Property to Buyer
("Close of Escrow"), Seller shall convey by grant deed to Buyer marketable fee simple title to
the Property, free and clear of all recorded and unrecorded liens, encumbrances, assessments,
leases and taxes except:
(a) Taxes for the fiscal year in which the escrow for this transaction closes, which
shall be prorated as of the Close of Escrow and handled in accordance with Section 4986 of the
California Revenue and Taxation Code;
1535444.3
Form 10-16-10 // 1340947-2
(b) The Redevelopment Plan for the Project Area; .and
(c) The items described as exception numbeY•s in
preliminary report for the Property dated 20 and issued by
Company (collectively, together with such other title excerptions as Buyer may
writing, the "Permitted Exceptions").
approve in
Without limiting the generality of the foregoing, Seller shall convey the Property to
Buyer free and clear of all monetary liens and encumbrances„ including without limitation, liens
relating to delinquent taxes and assessments, deeds of trust, acid other security instruments.
4. Escrow; Escrow Instructions. Within five (5) business days following the Effective
Date, the Parties shall open an escrow to consummate the purchase and sale of the Property
pursuant to this Agreement at the office of Stewart Title Company located at 100 Pine Street,
Suite 450, San Francisco, CA 94111 ("Title Company" or ":Escrow Agent") or such other title
company as may be mutually agreed upon by the Parties,. Upon the opening of escrow, the
Parties shall deposit with the Escrow Agent an executed copy of this Agreement, which shall
serve as the joint escrow instructions of Buyer and Seller for this transaction, together with such
additional instructions as may be executed by the Parties and delivered to the Escrow Agent.
5. Earnest Money Deposit. Upon the opening of escrow and in no event later than
seven (7) business days after the Effective Date, Buyer shall deposit the sum of Fifty Thousand
Dollars ($50,000) (the "Deposit") into escrow in an interest bearing account for the benefit of
Buyer. The Deposit, and all interest earned thereon, shall be applied to the Purchase Price at the
Close of Escrow.
If escrow fails to close because this Agreement is terminated in accordance with Section
13 or because of non-satisfaction of Buyer's closing conditions in Section 11, this Agreement
shall terminate, the Deposit and all interest earned thereon shall be returned to Buyer, and
thereafter neither Seller nor Buyer shall have any furthe~° obligations hereunder except as
expressly set forth herein.
6. Title Documents. By not later than ten (10) tusiness days following the Effective
Date, Buyer shall obtain an updated title report for the Property ("Title Report"). Buyer shall
approve or disapprove each title exception, as set forth in the Title Report within twenty (20)
days following the Effective Date. Buyer's failure to approve the Title Report within such time
period shall be deemed to be a disapproval of the title exceptions.
If Buyer objects to, or is deemed to have disapproved any title exception, Seller shall use
its best efforts at Seller's sole expense to remove from title or otherwise satisfy each such
exception no later than seven (7) days prior to the Close of Escrow and in a form that is
reasonably satisfactory to Buyer. If Seller fails to remove or satisfy any title exception to the
satisfaction of Buyer, Buyer shall have the option, in its sole discretion, to terminate this
Agreement, or to accept title subject to such exception. If Buyer elects to terminate this
Agreement, the Purchase Price, and all other funds and dacuments deposited into escrow by or
on behalf of Buyer shall be returned to Buyer, and thereafter neither Seller nor Buyer shall have
any further obligations hereunder except as expressly set forth herein.
1535444.3 2
that certain
Title
Form 10-16-10 // 1340947-2
It shall be a condition to the Close of Escrow that 'Title Company shall deliver to Buyer
no later than five (5) business days prior to the Close of Escrow, a title commitment for a CLTA
Owner's Title Insurance Policy ("Title Policy") (or at Buyer's election, an ALTA Owner's Title
Insurance Policy) to be issued by Title Company in the ~un.ount of the Purchase Price for the
benefit and protection of Buyer, showing fee simple title to tl~e Property vested in Buyer, subject
only to the Permitted Exceptions, including such endorsements as may reasonably be requested
by Buyer, and committing Title Company to issue the Tittle Policy to Buyer upon the Close of
Escrow.
7. Closing Documents and Funds.
(a) Seller.
(A) By no later than two (2) business days prior to the Close of Escrow, Seller
shall deposit into escrow all of the following:
(i) A Grant Deed, substantially in 'the form attached hereto as Exhibit
B ("Grant Deed"), duly executed and acknowledged, conveying to Buyer fee
simple title to the Property, subject only to Permitted Exceptions;
(ii) Seller's affidavit of non-foreign status and Seller's certification that
Seller is a resident of California, each executed by Seller under penalty of perjury
as required by state and federal law;
(iii) An Assignment of Leases, executed by Seller in form acceptable to
Buyer, conveying to Buyer Seller's interest in the leases and rental agreements
identified therein (the "Assignment of Leases");
(iv) Evidence that all utilities payable with respect to the Property have
been paid prorated as of the Close of Escrow;
(v) Tenant Estoppels (as described in Section 13.d);
(vi) All original leases, rental agreements and contracts to be assumed
by Buyer;
(vii) If applicable, an Assignment o:f Contracts, executed by Seller in
form acceptable to Buyer, conveying to Buyer Seller's interest in the contracts
identified therein (the "Assignment of Contracts"); and
(viii) Such additional duly executed instruments and documents as the
Escrow Agent may reasonably require to consummate the transaction
contemplated hereby.
(B) Unless Seller elects to have the fallowing charges deducted from the funds
to be distributed to Seller at Close of Escrow, no later than one (1) business day prior to
1535444.3 3
Form 10-16-10 /! 1340947-2
Close of Escrow, Seller shall deposit into escrow irmediately available funds in the
amount necessary to pay:
(i) funds in the amount necessary to pay Seller's share of closing costs
and the cost of the Title Policy in accordance with Section 9 below; and
(ii) all costs and expenses payable pursuant to Section 25 below.
(b) Buyer•
(A) By no later than two (2) business days prior to the Close of Escrow, Buyer
shall deposit into escrow all of the following:
(i) A duly executed Certificate c-f Acceptance in the form shown in
Exhibit B, as required by California Governtrierrt Code Section 27281;
(ii) If applicable, the Assignment of Leases, executed by Buyer;
and
(iii) If applicable, the Assignment: of Contracts, executed by Buyer;
(iv) Such additional duly executed iinstruments and documents as the
Escrow Agent may reasonably require t:o consummate the transaction
contemplated hereby.
(B) No less than one (1) business day prior to the Close of Escrow, Buyer
shall deposit into escrow immediately available funds in the amount equal to:
(i) the Purchase Price (less the Deposit) as adjusted by any prorations
between the Parties; and
(ii) funds in the amount necessary to pay Buyer's share of closing
costs and the cost of the Title Policy in accordance with Section 9 below.
8. Close of Escrow. The Parties intend to close escrow within thirty (30) days following
the date that Buyer's governing board approves this Agreement and not later than December 29,
2010, provided that all of Buyer's conditions to closing (described in Sections 11 and 13 below)
have been satisfied by such date, unless this Agreement is terminated pursuant to the terms
hereof or extended by mutual agreement of the Parties. The: Escrow Agent shall close escrow
by: (i) causing the Grant Deed to be recorded in the official records of San Mateo County,
California; (ii) issuing the Title Policy and delivering same to Buyer; (iii) delivering to Seller the
monies constituting the Purchase Price less prorated amounts and charges to be paid by or on
behalf of Seller; (iv) delivering to Buyer a conformed copy of the Grant Deed indicating
recording information thereon; and (v) delivering to Buyer, if applicable, the Bill of Sale,
Assignment of Leases, and the Assignment of Contracts, each executed by Seller. Possession of
the Property shall be delivered to Buyer at the Close of Escro~~.
1535444.3 4
Form 10-16-10 // 1340947-2
9. Closing Costs. Each Party shall pay one-half (1/2) of all escrow fees. Seller shall pay
all governmental transfer taxes and conveyance fees and Buyer will pay all recording fees.
Seller will pay the cost of the Title Policy; however, if Buyer elects to purchase an ALTA policy,
Buyer will pay the incremental additional premium for such policy and the cost of any required
survey.
10. Prorations. Property taxes shall be prorated as of the Close of Escrow based upon
the most recent tax bill available, including any property ta.xe:s which may be assessed after the
Close of Escrow but which pertain to the period prior to the transfer of title to the Property to
Buyer, regardless of when or to whom notice thereof is delivered.
11. Buyer's Conditions to Closing. The Close of ]Escrow and Buyer's obligation to
purchase the Property are conditioned upon satisfaction (c,r Buyer's waiver, exercisable in
Buyer's sole discretion) of each of the following: (i) the performance by Seller of each
obligation to be performed by Seller under this Agreement within the applicable time period, or
the waiver by Buyer of such obligation; (ii) Seller's represf;ntations and warranties contained in
this Agreement being true and correct as of the Effective Date and the Close of Escrow; (iii) the
commitment by Title Company to issue and deliver the Title Policy in the form required by
Buyer pursuant to Section 6, subject only to the Permitted Exceptions; (iv) Buyer's approval of
the condition of the Property and other matters pursuant tc- Section 13; and (v) approval of the
purchase of the Property by Buyer's governing board.
Should any condition to closing fail to occur, excepl:ing any such conditions that have
been waived by Buyer, Buyer shall have the right, exercisabef; by giving written notice to Seller,
to cancel the escrow, terminate this Agreement, and recover the Deposit together with all interest
earned thereon and any and all other amounts paid by Buyer to Seller or deposited with the
Escrow Agent by or on behalf of Buyer. The exercise of this right by Buyer shall not constitute a
waiver by Buyer of any other rights Buyer may have at law or in equity.
12. Studies, Reports and Investigations. Seller agrees to make available to Buyer
within two (2) business days following the Effective Date, any and all correspondence with
governmental agencies, information, studies, reports, investigations, contracts, licenses, leases,
rental agreements and other documents concerning or relating to the Property which are in
Seller's possession or which are reasonably available to Seller (collectively, "Property
Documents"), including without limitation any CC&Rs affec;ting the Property and any analyses,
surveys, environmental site assessments, studies, reports and investigations concerning the
Property's physical, environmental or geological condition, habitability, or the presence or
absence of Hazardous Materials (defined in Section 17.1) in, on, under or about the Property and
the compliance by the Property with Environmental Laws (as defined in Section 17.1).
13. Buyer's Additional Conditions to Closing. 13uyer's obligation to purchase the
Property is conditioned upon Buyer's review and approval. of the condition of the Property and
the Property Documents (defined in Section 12) pursuant to this Section.
(a) Feasibility Studies. During the period commencing on the Effective Date and ending
on December 1, 2010 or such later date as mutually agreed upon by the Parties ("Due
1535444.3 5
Form 10-16-10 !! 1340947-2
Diligence Period") Buyer may, at Buyer's expense, undertake an inspection and
review of the Property and analysis of the Property Documents, including without
limitation (i) review and analysis of the physical condition of the Property, including
but not limited to, inspection and examination of soils, environmental factors,
Hazardous Materials, and archeological information relating to the Property; (ii) a
review and investigation of the effect of any zoning, maps, permits, reports,
engineering data, regulations, ordinances, and la.w~s affecting the Property, and (iii) an
evaluation of the Property to determine its feasibility for Buyer's intended use. Buyer
may consult with or retain civil engineers, contractors, soils and geologic engineers,
architects and other specialists in its investigation, and may consult with or retain
other consultants to determine if the Property is ;suitable for Buyer's intended use.
If Buyer's environmental consultants require additional time to determine the
existence and extent of any Hazardous Materials on the Property, Buyer shall have
the right, exercisable by delivering written notice to Seller prior to the expiration of
the Due Diligence Period, to extend the Due Diligence Period and the date for Close
of Escrow for up to twenty (20) additional days to complete the testing.
(b) Other matters. During the Due Diligence Period, Buyer may inspect, examine,
survey and review any other matters concerning the Property, including without
limitation, any and all studies or reports or Property Documents provided by Seller,
all contracts, leases, licenses, rental agreements and other obligations relating to the
Property, and the Property's conformity with all applicable laws and regulations.
(c) Rent Roll; Tenant Leases. Within five (5) business days following the Effective
Date, Seller shall deliver to Buyer a current rent roll, certified by Seller, listing for
each tenant of any part of the Property, all of the following: tenant name, premises
occupied, monthly rent, amount of deposit, amount of prepaid rent, and term of lease.
Within five (5) business days following the Effective Date, Seller shall deliver to
Buyer certified copies of all tenant leases, including any amendments and
modifications. On or before the Close of Escrow, Seller shall assign all of Seller's
rights and remedies under the tenant leases, including the right to any security
deposits and prepaid rent, to Buyer pursuant to aai assignment of leases and security
deposits in form and substance satisfactory to Buyer (the "Assignment of Leases").
(d) Estoppel Certificates. No later than ten (10) business days after the Effective Date,
Seller shall deliver to Buyer an estoppel certificate in form satisfactory to Buyer
executed by each Tenant of the Property. Seller shall deliver updated estoppel
certificates executed by each Tenant of the Property not less than five (5) days prior
to Close of Escrow.
(e) Assignment of Contracts. At Close of Escrow, Seller shall deliver to Buyer an
assignment of contracts in form and substance satisfactory to Buyer pursuant to which
Seller shall assign to Buyer those contracts affecting the Property that Buyer elects to
assume.
1535444.3 6
Form 10-16-10 // 1340947-2
(~ Disapproval of Property Condition. Should Buyer fail to approve the condition of
the Property or any matters related to the Property at any time prior to the end of the
Due Diligence Period (as such may be extended pursuant to Section 13(a)), Buyer
shall have the right, exercisable by giving written notice to Seller, to cancel the
escrow, terminate this Agreement, and recover the Deposit together with all interest
earned thereon and any and all other amounts paid by Buyer to Seller or deposited
with the Escrow Agent by or on behalf of Buyer. The exercise of this right by Buyer
shall not constitute a waiver by Buyer of any other rights Buyer may have at law or in
equity.
14. Right of Entry. Prior to Close of Escrow, Buyer and Buyer's employees and agents,
consultants, and contractors shall have the right, upon reasonable notice to Seller, to enter upon
the Property and the Improvements for the purpose of conduicting inspections, surveys, testing
and examination (including without limitation soils, engineering and groundwater testing) of the
Property. Buyer's inspection, examination, survey and review of the Property shall be at Buyer's
expense. Buyer shall obtain Seller's advance consent in writing to any proposed physical testing
of the Property, which consent shall not be unreasonably conditioned, withheld or delayed.
Buyer shall repair, restore and return the Property to its original condition after such physical
testing, at Buyer's expense. Buyer shall schedule any such physical tests during normal business
hours unless otherwise approved by Seller. Buyer agrees to indemnify Seller and hold Seller
harmless from and against all liability, loss, cost, damage and expense (including, without
limitation, reasonable attorney's fees and costs of litigation) resulting from Buyer's and Buyer's
employees' and agents' entry upon the Property, except to the extent that such liability, loss,
cost, damage and expense arises as a result of the negligence or other wrongful conduct of Seller
or its agents.
15. Seller's Conditions to Closing. The Close of 1?scrow and Seller's obligation to sell
the Property pursuant to this Agreement are conditioned upon: (i) the performance by Buyer of
each obligation to be performed by Buyer under this Agreement within the applicable time
period, or waiver by Seller of such obligation; and (ii) Buyer's representations and warranties
contained in this Agreement being true and correct as of the Effective Date and the Close of
Escrow.
16. Seller's Representations and Warranties. Seller represents and warrants to Buyer
that the statements set forth in this Section 16 are true and correct as of the Effective Date, shall
be true and correct as of the Close of Escrow, and shall survive the Close of Escrow. Seller
shall notify Buyer of any facts that would cause any of the representations contained in this
Agreement to be untrue as of the Close of Escrow. If Buyer reasonably believes that a fact
materially and adversely affects the Property, Buyer shall have the option to terminate this
Agreement by delivering written notice thereof to Seller. In the event Buyer elects to terminate
this Agreement, all funds and documents deposited into escrow by or on behalf of Buyer shall be
returned to Buyer, and all rights and obligations hereunder shall terminate. Seller shall
indemnify, defend and hold harmless Buyer from all loss, cost, liability, expense, damage or
other injury, including without limitation, attorneys' fees and all other costs and expenses
incurred by reason of, or in any manner resulting from the breach of any representation or
warranty contained in this Section. The indemnity, defense and hold harmless provisions of this
Section shall survive the Close of Escrow and the expiration or termination of this Agreement.
1535444.3 7
Form 10-16-10 // 1340947-2
(i) Authority; Due Execution; Enforceabi~ity., Seller has the full right, power and
authority to execute, deliver and perform all obligations of Seller under this Agreement and all
other instruments delivered or to be delivered by Seller prior to the Close of Escrow
(collectively, the "Documents"), and the execution, performance and delivery of this Agreement
and the Documents by Seller have been duly authorized by all requisite actions. The persons
executing this Agreement and the Documents on behalf of Seller have been duly authorized to do
so. This Agreement and the Documents constitute valid and binding obligations of Seller,
enforceable in accordance with their respective terms.
(ii) No Conflict. Seller's execution, delivery and performance of its obligations
under this Agreement and the Documents will not constitute a default or a breach under any
contract, agreement or order to which Seller is a party, by which Seller is bound, or which affects
the Property or any part thereof. Without limiting the generality of the foregoing, the sale of the
Property pursuant to this Agreement does not violate the terms of any partnership, limited
liability company agreement, or other agreement to which. Seller or any of the individuals
comprising Seller is a party, nor is the consent of any third. party required for the sale of the
Property pursuant to this Agreement.
(iii) No Litigation or Other Proceeding. No litigation or other proceeding (whether
administrative or otherwise) is outstanding or has been threatened which would prevent, hinder
or delay the ability of Seller to perform its obligations under this Agreement or any Documents.
(iv) No Bankruptcy. Seller is not the subject of a bankruptcy or insolvency
proceeding.
(v) Title. This Agreement and the Documents a~-e collectively sufficient to transfer
all of Seller's right, title and interest in and to the Property. To the best of Seller's actual
knowledge, no person or entity has any right, title or interest in or to the Property or any portion
thereof other than as set forth in the Title Report.
(vi) Governmental Compliance. To the best oil Seller's actual knowledge, except as
disclosed in writing to Buyer, Seller and the Property are in compliance with all zoning laws,
building codes, environmental laws and all other laws, ordinances, rules, requirements,
resolutions, policy statements and regulations of any governmental authority having jurisdiction
over the Property. Except as disclosed in writing to Buyer, Seller has not received any notice
from any governmental authority of any threatened or pending zoning, building, fire, or health
code violation or violation of other governmental regulations concerning the Property that have
not previously been corrected, and no condition on the Property violates any health, safety, fire,
environmental, sewage, building, or other federal, state or local law, ordinance or regulation.
(vii) Non-Foreign Certification. Seller is not a "foreign person" for purposes of
Section 1445 of the Internal Revenue Code of 1986, as amended, and any regulation
promulgated thereunder, and Seller is a resident taxpayer in the State of California for purposes
of Revenue and Taxation Code Section 18662.
1535444.3 8
Form 10-16-10 // 1340947-2
(viii) Agreements Affecting Property. Except as disclosed in writing to Buyer, no
oral or written contracts, licenses, rental agreements, leases or commitments regarding the
maintenance or use of the Property or allowing any third party rights to use the Property are in
force.
(ix) Litigation; Condemnation. There are no pending, or to Seller's best knowledge,
threatened, actions suits, or administrative proceedings against or affecting the Property or any
portion thereof or the interest of Seller in the Property. There are no pending or to Seller's best
knowledge threatened, condemnation, eminent domain, or similar proceedings affecting the
Property or any portion thereof.
(x) Disclosure. Seller has disclosed all material facts known to Seller concerning the
Property. All information that Seller has delivered to Buyer, either directly or through Seller's
agents, is accurate and complete.
17. Hazardous Materials.
17.1 Definitions
(a) Hazardous Materials. As used in this Agreement, "Hazardous
Materials" means any chemical, compound, material, mixture, or substance that is now or may
in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws
(defined below) as a "hazardous substance", "hazardous material", "hazardous waste",
"extremely hazardous waste", infectious waste", toxic substance", toxic pollutant", or any other
formulation intended to define, list or classify substances by reason of deleterious properties such
as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term "Hazardous
Materials" shall also include asbestos or asbestos-containing materials, radon, chrome and/or
chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum
components, oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas usable as fuel, perchlorate, and methyl tert butyl ether, whether or not defined as a
hazardous waste or hazardous substance in the Environmental Laws.
(b) Environmental Laws. As used in this Agreement, "Environmental
Laws" means any and all federal, state and local statutes, ordinances, orders, rules, regulations,
guidance documents, judgments, governmental authorizations or directives, or any other
requirements of governmental authorities, as may presently exist, or as may be amended or
supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling,
treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the
environment or human, plant or animal health, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability .Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous
Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
§ 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Porter-Cologne
1535444.3 9
Form 10-16-10 // 1340947-2
Water Quality Control Act (Cal. Water Code § 13000 et :seq.), the Toxic Mold Protection Act
(Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking Water and Toxic Enforcement
Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste Control Act
(Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials Release Response Plans &
Inventory Act (Cal. Health & Safety Code § 25500 et seq.)., and the Carpenter-Presley-Tanner
Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300 et seq.).
18. Environmental Condition of the Property. Seller acknowledges that
California Health & Safety Code Section 25359.7 requires owners of non-residential real
property who know, or have reasonable cause to belif;ve, that any release of Hazardous
Substances has come to be located on or beneath the real property to provide written notice of
same to the buyer of real property. Subject to that duty, Seller hereby represents and warrants
that except as disclosed in writing to Buyer, as of the Effective Date and as of the Close of
Escrow:
(a) the Property is free and has always been free of Hazardous Materials and is not now
and has never been in violation of any Environmental Law;
(b) there are no buried or partially buried storage tanks or piping located on the Property;
(c) Seller has received no notice, warning, notice of violation, administrative complaint,
judicial complaint, or other formal or informal notice alleging; that conditions on the Property are
or have ever been in violation of any Environmental Law or informing Seller that the Property is
subject to investigation or inquiry regarding Hazardous Materials on the Property or the potential
violation of any Environmental Law;
(d) there are no ongoing operations, maintenance and monitoring requirements on the
Property imposed by any governmental agency;
(e) no toxic or hazardous chemical(s), waste, substances or Hazardous Materials of any
kind have ever been spilled, disposed of, or stored on, under or at the Property, whether by
accident, burying, drainage, or storage in containers, tanks, holding areas, or any other means;
(f) Seller is not aware of any Hazardous Materials that may be migrating onto the
Property from off-site sources;
(g) the Property has never been used as a dump or landfill;
(h) Seller has disclosed to Buyer all information, records, and studies in Seller's
possession or reasonably available to Seller relating to the Property concerning Hazardous
Materials and their use, storage, spillage or disposal on the Property;
(i) Seller has not received any notice from any governmental authority of any threatened
or pending environmental violation that has not previously been corrected, and no condition on
the Property violates any Environmental Law;
1535444.3 10
Form 10-16-10 // 1340947-2
(j) there are no land use controls or other restrictions (other than zoning limitations) that
would prohibit certain uses on the Property; and
(k) Seller has disclosed all material facts concerning the environmental condition of the
Property.
19. Environmental Indemnity. To the fullest extent allowed by law, Seller agrees to
unconditionally and fully indemnify, protect, defend (with counsel satisfactory to Buyer), and
hold Buyer and the City of South San Francisco, and their respective elected and appointed
officers, officials, employees, agents, consultants and contractors harmless from and against any
and all claims (including without limitation third party claims for personal injury, real or
personal property damage, or damages to natural resources), actions, administrative proceedings
(including without limitation both formal and informal proceedings), judgments, damages,
punitive damages, penalties, fines, costs (including without limitation any and all costs relating
to investigation, assessment, analysis or clean up of the Property), liabilities (including without
limitation sums paid in settlements of claims), interest, or losses, including reasonable attorneys'
and paralegals' fees and expenses (including without limitation any such fees and expenses
incurred in enforcing this Agreement or collecting any sums due hereunder), together with all
other costs and expenses of any kind or nature (collectively, the "Costs") that arise directly or
indirectly from or in connection with the presence, suspected presence, release, or suspected
release, of any Hazardous Materials in, on or under the Property or in or into the air, soil, soil
gas, groundwater, or surface water at, on, about, around, above, under or within the Property, or
any portion thereof, except those Costs that arise solely as a result of actions by Buyer. The
indemnification provided pursuant to this Section shall specifically apply to and include claims
or actions brought by or on behalf of employees of Seller or any of its predecessors in interest
and Seller hereby expressly waives any immunity to which Seller may otherwise be entitled
under any industrial or worker's compensation laws. In the event the Buyer suffers or incurs any
Costs, Seller shall pay to Buyer the total of all such Costs suffered or incurred by the Buyer upon
demand therefore by Buyer. The indemnification provided pursuant to this Section shall include,
without limitation, all loss or damage sustained by the Buyer due to any Hazardous Materials:
(a) that are present or suspected by a governmental agency having jurisdiction to be present in
the Property or in the air, soil, soil gas, groundwater, or surface water at, on, about, above, under,
or within the Property (or any portion thereof) or to have emanated from the Property, or (b) that
migrate, flow, percolate, diffuse, or in any way move onto, into, or under the air, soil, soil gas,
groundwater, or surface water at, on, about, around, above, under, or within the Property (or any
portion thereof) after the date of this Agreement as a result of Seller's or its predecessors'
activities on the Property. The provisions of this Section shall survive the termination of this
Agreement and the Close of Escrow.
20. Release by Seller. Effective upon the Close of Escrow, Seller waives releases,
remises, acquits and forever discharges Buyer, its officers, directors, board members, managers,
employees and agents, and any other person acting on behalf of Buyer, from any and all claims,
actions, causes of action, demands, rights, damages, costs, expenses and compensation
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Seller now has
or which may arise in the future on account of or in any way arising from or in connection with
the physical condition of the Property or any law or regulation applicable thereto including,
1535444.3 11
Form 10-16-10 /11340947-2
without limiting the generality of the foregoing, any federal, state or local law, ordinance or
regulation pertaining to Hazardous Materials. This Section 20 shall survive the termination of
this Agreement and the Close of Escrow.
SELLER ACKNOWLEDGES THAT SELLER IS FAMILIAR WITH SECTION 1542 OF
THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
BY INITIALING BELOW, SELLER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542
OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE:
Seller's initials:
21. Seller's Covenants. Seller covenants that from the Effective Date and through the
Close of Escrow, Seller: (i) shall not create or permit any liens, encumbrances, or easements to
be placed on the Property, other than Permitted Exceptions; (ii) shall not enter into or renew,
replace or modify any agreement regarding the use, sale, rental, management, repair,
improvement, or any other matter affecting the Property that would be binding on Buyer or the
Property after the Close of Escrow without the prior written consent of Buyer; (iii) shall not
permit any act of waste or act that would tend to diminish the value of the Property for any
reason, except that caused by ordinary wear and tear; (iv) shall maintain the Property in its
condition as of the Effective Date, ordinary wear and tear excepted, and shall manage the
Property substantially in accordance with Seller's established practices; (v) shall make no
material alteration to the Property or the Improvements without Buyer's prior written consent;
and (vi) shall immediately notify Buyer if Seller becorrtes aware of a factual basis for any
condemnation, environmental proceeding, special assessment proceeding, zoning action, land
use or other litigation or proceeding against Seller or the Property that could detrimentally affect
the Property or the use, ownership, development, sale or value of the Property.
22. Buyer's Representations, Warranties and Covenants. Buyer represents,
warrants and covenants that this Agreement and all other documents delivered in connection
herewith, prior to or at the Close of Escrow: (i) have been duly authorized, executed, and
delivered by Buyer; (ii) are binding obligations of Buyer; and (iii) do not violate the provisions
of any agreement to which Buyer is a party. Buyer further represents and warrants that the
persons who have executed this Agreement on behalf of Buyer have are duly authorized to do so,
that Buyer has the legal right to enter into this Agreement and to perform all of its terms and
conditions, and that Agreement is enforceable against Buyer in accordance with its terms.
1535444.3 12
Form 10-16-10 // 1340947-2
23. Damage and Destruction. In the event of any damage or other loss to the
Property, or any portion thereof, caused by fire or other casualty prior to the Close of Escrow in
an amount not exceeding $50,000, Buyer shall not be entitled to terminate this Agreement, but
shall be obligated to close the escrow and purchase the Property as provided in this Agreement,
without abatement in the Purchase Price, provided that Seller shall: (i) assign and transfer to
Buyer all of Seller's rights under any insurance policy covering the damage or loss, and all
claims for monies payable from Seller's insurer(s) in connection with the damage or loss to the
Property, and (ii) pay to Buyer at the Close of Escrow the amount of Seller's deductible under the
insurance policy or policies covering the damage or loss. [n the event of damage or destruction
of the Property or any portion thereof prior to the Close of Escrow in an amount in excess of
$50,000, Buyer may elect either to terminate this Agreement upon written notice to Seller, or to
consummate the purchase of the Property, in which case Seller shall (i) assign and transfer to
Buyer all of Seller's rights under any insurance policy covering the damage or loss, and all
claims for monies payable from Seller's insurer(s) in connection with the damage or loss, and (ii)
pay to Buyer at the Close of Escrow the amount of Seller's deductible under the insurance policy
or policies covering the damage or loss. In the event Buyer elects to terminate this Agreement,
all funds and documents deposited into escrow by or on behalf of Buyer shall be returned to
Buyer, and all rights and obligations hereunder shall terminate.
24. Liquidated Damages. BY PLACING "THEIR INITIALS IMMEDIATELY
BELOW, BUYER AND SELLER EACH ACKNOWLEDGE AND AGREE THAT IT WOULD
BE IMPRACTICABLE OR EXTREMELY DIFFICt1LT TO ASCERTAIN ACTUAL
DAMAGES THAT WOULD BE INCURRED BY SELLER IF BUYER DEFAULTS UNDER
OR BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY, THAT
THE DEPOSIT (DEFINED IN SECTION 5) IS A REASONABLE ESTIMATE OF SUCH
DAMAGES, AND THAT UPON BUYER'S DEFAULT IN ITS PURCHASE OBLIGATIONS
UNDER THIS AGREEMENT NOT CAUSED BY ANY BREACH BY SELLER, SELLER
SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, WHICH
SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY TN LAW OR AT EQUITY FOR
BUYER' S DEFAULT.
Buyer's Initials
Seller's Initials
25. Relocation. Seller pledges to fully cooperate with Buyer in connection with
compliance with applicable provisions of the California Relocation Assistance Law (Government
Code Section 7260 et seq.), the Federal Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (Title 42, U.S. Code Section 4601 et seq.), the regulations
adopted in connection with the foregoing, and applicable local rules and regulations relating to
residential and commercial relocation (all of the foregoing, as such may be amended,
collectively, "Relocation Laws"). Without limiting the generality of the foregoing, Seller agrees
to: (i) provide Buyer with an accurate listing providing names and addresses of all occupants of
the Property or part thereof, (ii) permit Buyer to provide occupants with notices and information
relating to Relocation Laws, (iii) not permit any new persons or businesses to occupy any portion
of the Property absent Buyer's prior written consent which consent may be conditioned upon the
delivery of notices to such persons and businesses notices consistent with. the requirements of
Relocation Laws in form provided by Buyer.
1535444.3 13
Form 10-16-10 //1340947-2
26. General Provisions.
26.1 Brokers. Each Party warrants and represents to the other that no person or entity
can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other
compensation with respect to the transaction contemplated by this Agreement other than as
stated in this Section 26.1. Each Party agrees to defend, indemnify and hold harmless the other
Party from any claims, expenses, costs or liabilities arising in connection with a breach of this
warranty and representation. The terms of this Section shall survive the expiration or earlier
termination of this Agreement. Seller is represented by John Penna, Penna Realty. Seller will
pay a commission or brokerage fee to such parties pursuant to a separate agreement. Buyer shall
have no obligation to pay any such commission, brokerage fee or other compensation.
26.2 Assignment. Buyer shall have the right to assign all rights and obligations under
this Agreement to any party and Seller's approval of any such assignment shall not be necessary.
26.3 Notices. Except as otherwise specified in this Agreement, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective
addresses specified below or to such other address as a Party may designate by written notice
delivered to the other parties in accordance with this Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice shall
be deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to
the sender's account, in which case notice is effective on delivery if delivery is confirmed
by the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered upon
transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-
class or certified mail or by overnight delivery, or (b) a transmission report is generated
reflecting the accurate transmission thereof. Any notice given by facsimile shall be
considered to have been received on the next business day if it is received after 5:00 p.m.
recipient's time or on a nonbusiness day.
Buyer: Redevelopment Agency of the City of South San Francisco
City Hall, 400 Grand Avenue
South San Francisco, CA 94083
Attention: Executive Director
Telephone: (650) 829-6620
Facsimile: (650) 829-6623
1535444.3 14
Form 10-16-10 // 1340947-2
with a copy to: Meyers, Nave, Riback, Silver & Wilson
555 12`h Street, Suite 1500
Oakland, CA 94607
Attention: Susan Bloch, Esq.
Telephone: (510) 809-2000
Facsimile: (510-444-1108
Seller: Josephine Pasco
Telephone:
Facsimile:
26.4 Litigation Costs. If any legal action or any other proceeding, including
arbitration or action for declaratory relief, is brought for the enforcement of this Agreement or
because of an alleged breach or default in connection with this Agreement, the prevailing Party
shall be entitled to recover reasonable attorneys' fees and other costs, in addition to any other
relief to which such Party may be entitled.
26.5 Waivers; Modification. No waiver of any breach of any covenant or provision
of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no
waiver shall be valid unless in writing and executed by the waiving party. An extension of time
for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act, and no extension shall be valid unless in writing and
executed by the waiving party. This Agreement may be amended or modified only by a written
instrument executed by the Parties.
26.6 Successors. This Agreement shall bind and inure to the benefit of the respective
heirs, personal representatives, successors and assignees of the Parties.
26.7 Provisions Not Merged With Deeds. None of the provisions, terms,
representations, warranties and covenants of this Agreement are intended to or shall be merged
by the Grant Deed, and neither the Grant Deed nor any other document shall affect or impair the
provisions, terms, representations, warranties and covenants contained herein. Without limiting
the generality of the foregoing: (i) Seller's representations, warranties and covenants contained
herein shall survive the Close of Escrow, (ii) all provisions of this Agreement that expressly
state that they shall survive the Close of Escrow and the termination of this Agreement, shall do
so, and (iii) Buyer and Seller intend that the disclosures provided in Section 18, the indemnities
provided in Sections 16, 19, and 26.1 and the releases provided in Section 20 and Section 27 will
survive the termination of this Agreement, the Close of Escrow and the transfer of the Property
to Buyer.
1535444.3 15
Form 10-16-10 //1340947-2
26.8 Captions; Construction. The section headings used herein are solely for
convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this
Agreement is the product of negotiation and compromise on the part of both Parties, and the
Parties agree, that since both Parties have participated in the negotiation and drafting of this
Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather
according to its fair meaning as a whole, as if both Parties had prepared it.
26.9 Action or Approval. Where action and/or approval by Buyer is required under
this Agreement, Buyer's Executive Director may act on and/or approve such matter unless the
Executive Director determines in his or her discretion that such action or approval requires
referral to Buyer's Board for consideration.
26.10 Entire Agreement. This Agreement, including Exhibits A and B attached hereto
and incorporated herein by this reference, contains the entire agreement between the Parties with
respect to the subject matter hereof, and supersedes all prior written or oral agreements,
understandings, representations or statements between the Parties with respect to the subject
matter hereof.
26.11 Severability. If any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall continue in full force and effect unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
26.12 No Third Party Beneficiaries. Nothing in this Agreement is intended to or shall
confer upon any person, other than the Parties and their respective successors and assigns, any
rights or remedies hereunder.
26.13 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
26.14 Non-Liability of Officials, Employees and Agents. No member, official,
employee or agent of Buyer shall be personally liable to Seller or its successors in interest in the
event of any default or breach by Buyer or for any amount which may become due to Seller or its
successors in interest pursuant to this Agreement.
26.15 Time of the Essence. Time is of the essence for each condition, term, obligation
and provision o t is greement.
26.16 Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to principles of conflicts of
laws. Buyer and Seller agree that any controversy arising under or in relation to this Agreement
shall be litigated exclusively in the jurisdiction where the Land is located (the "Property
Jurisdiction"). The state and federal courts and authorities with jurisdiction in the Property
Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in
relation to this Agreement. Buyer and Seller each irrevocably consent to service, jurisdiction,
and venue of such courts for any such litigation, and waive any other venue to which such party
1535444.3 16
Form 10-16-10 // 1340947-2
might be entitled by virtue of domicile, habitual residence or otherwise. The provisions of this
Section shall survive the Close of Escrow and the termination of this Agreement.
26.17 Time for Performance. When the time for performance of any obligation under
this Agreement is to be measured from another event, such time period shall include the day of
the other event. If the day of the time for performance is not a regular business day, then the time
for such performance shall be by the regular business day fallowing such day.
26.18 Escrow Cancellation Charges. If the escrow fails to close by reason of a
default by Buyer or Seller hereunder, such defaulting pari.y shall pay all escrow or other Title
Company charges. If the escrow fails to close for any reason other than default by Buyer or
Seller, then Buyer and Seller shall each pay one-half of such charges.
26.19 Further Assurances. Buyer and Seller each agree to undertake such other
actions as may reasonably be necessary to carry out the intent of this Agreement, including
without limitation, the execution of any additional documents which may be required to
effectuate the transactions contemplated hereby.
26.20 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which taken together. shall constitute one and the same
instrument.
27. Eminent Domain Dismissal; Full and Complete Settlement. Seller and Buyer
acknowledge that this transaction is a negotiated settlement in lieu of condemnation. Seller
hereby waives all attorneys' fees, costs, disbursements, and expenses arising out of any potential
known or unknown issues relating to condemnation or inverse condemnation of the Property or
part thereof. Seller hereby acknowledges that the Purchase Price constitutes the full and
complete settlement of any and all claims for compensation or damages against Buyer, by reason
of Buyer's acquisition of the property and any dislocation of Seller from same, specifically
including, but not limited to, any and all rights to participation in the redevelopment of property
in the Project Area, the value of the Property, any and all claims in inverse condemnation and for
pre-condemnation damages, any and all loss of business goodwill and any and all relocation
benefits that Seller may be entitled to, the nature of which is fully known by Seller and any and
all other claim that Seller may have, whether or not specifically mentioned here, relating directly
or indirectly to the acquisition by Buyer of the Property.
Seller and all of its agents, representatives, attorneys, principals, predecessors, successors,
assigns, administrators, executors, heirs, and beneficiaries, hereby release Buyer from any and all
obligations, liabilities, claims, costs, expenses, demands, debts, controversies, damages, causes
of action, including without limitation those relating to just compensation, which any of them
now have, or might hereafter have by reason of any matter or thing arising out of or in any way
relating to any condemnation action affecting the Property. The terms and conditions, covenants,
and agreements set forth herein shall apply to and bind the heirs, executors, administrators,
assigns and successors of the Parties.
1535444.3 17
Form 10-16-10 // 1340947-2
Seller acknowledges that it may have sustained damage, loss, costs or expenses which are
presently unknown and unsuspected, and such damage, loss, costs or expenses which may have
been sustained may give rise to additional damage, loss, costs or expenses in the future. Seller
also acknowledges that changes in law may occur in the future which may apply retroactively
and may allow Seller to be entitled to further claims for damage, loss, costs or expenses which
are presently unknown and unsuspected. Nevertheless, Seller hereby acknowledges that this
Agreement has been negotiated and agreed upon in light of that situation, and hereby expressly
waives any and all rights which it may have under California Civil Code section 1542, or under
any statute or common law or equitable principle of similar effect.
SELLER ACKNOWLEDGES THAT SELLER IS FAMILIAR WITH SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
BY INITIALING BELOW, SELLER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542
OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE:
Seller's initials:
This Section 27 shall survive the Close of Escrow and the termination of this Agreement.
SIGNATURES ON FOLLOWING PAGE(S)
1535444.3
18
Form 10-16-10 //1340947-2
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
BUYER:
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH
SAN FRANCISCO
By:
Print Name:
Title:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
SELLER:
By:
Print Name:
Title:
1535444.3 19
Form 10-16-10 //1340947-2
Exhibit A
LEGAL DESCRIPTION
The land situated in the State of California, County of San Mateo, City of South San Francisco
and described as follows:
APN:
1535444.3
20
Form 10-16-10 //1340947-2
Exhibit B
Recording Requested by
and when Recorded, return to:
REDEVELOPMENT AGENCY OF THE CITY OF
SOUTH SAN FRANCISCO
P.O. Box 711
South San Francisco, CA 94083
Attn: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, a
California ("Grantor") hereby grants to the Redevelopment Agency of
the City of South San Francisco, a public body corporate and politic ("Buyer") the real property
located in the County of San Mateo, State of California commonly known as
Street, South San Francisco, California and more particularly described in Exhibit A attached
hereto and incorporated herein (the "Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
2010.
GRANTOR:
By:
Print Name:
Title:
1535444.3
21
Form 10-16-10 // 1340947-2
Exhibit A
The land situated in the State of California, County of San Mateo, City of South San Francisco
and described as follows:
APN:
1535444.3 22
Form 10-16-10 /11340947-2
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed dated
20 ,executed by , a California
("Grantor") to the Redevelopment Agency of the City of South San Francisco, a public body
corporate and politic ("Agency"), is hereby accepted on behalf of the Agency by its Executive
Director pursuant to authority conferred by Resolution No. ,adopted by the Agency
governing board on , 20_, and that the Grantee consents to recordation of the
Grant Deed by its duly authorized officer.
Dated , 2009
By:
Print Name:
Title:
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
1535444.3 23
Form 10-16-10 // 1340947-2
STATE OF CALIFORNIA
COUNTY OF SAN MATED
On , 20_, before me, , (here insert name and title of the officer),
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
STATE OF CALIFORNIA
COUNTY OF SAN MATED
(Seal)
On , 20 ,before me, , (here insert name and title of the officer),
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.
1 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)
1535444.31 3aosa~-~ 24
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