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AGENDA
REDEVELOPMENT AGENCY
CITY OF SOUTH SAN FRANCISCO
REGULAR MEETING
MUNICIl'AL SERVICES BUILDING
COMMUNITY ROOM
WEDNESDAY, DECEMBER 8, 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 (:ommunity 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 may 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. COMMEI~TTS ARE LIMITED TO THREE (3) MINUTES 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.
KEVIN MULI,IN
Chair
RICHARD A. GARBARINO
Vice Chair
PEDRO GONZALEZ
Boardmember
RICHARD BATTAGLIA
Investment Officer
BARRY M. NAGEL
Executive Director
MARK N. ADDIEGO
Boardmember
KARYL MATSUMOTO
Boardmember
KRISTA MARTINELLI
Clerk
STEVEN T. MATTAS
Counsel
PLEASE SILENCE CELL PHONES AND PAGERS
HEARING ASSISTANCE EQUIPMENT 1S AVAILABLE FOR USE BY THE HEARING-IMPAIRED AT REDEVELOPMENT AGENCY MEETINGS
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 Sa~z Francisco, California 94080.
CALL TO ORDER
ROLL CALL
AGENDA REVIEW
PUBLIC COMMENTS
CONSENT CALENDAR
1. Motion to approve the minutes of November 10, 2010.
2. Motion to approve expense claims of December 8, 2010.
3. Motion to accept the 356 Grand Avenue Abatement and Building Demolition Project as
complete in accordance with the plans and specifications.
4. Resolution approving an additional advance for the remodel of Di Napoli Pizzeria & Ristorante
in an amount not to exceed $35,200; and authorizing the Executive Director to execute all
required loan documents.
ADMINISTRATIVE BUSINESS
5. Resolution authorizing the Executive Director to execute a Purchase and Sale Agreement
for 207 Grand Avenue in the amount of $350,000.
CLOSED SESSION
6. Real Property Negotiations
Pursuant to Government Code Section 54956.$
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 DECEMBER 8, 2010
AGENDA PAGE 2
RDA AGENDA ITEM # 1
4~p~TH SAN~~
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OyL I FOR~~P
MINUTES
REGULAR MEETING
REDEVELOPMENT AGENCY
CITY OF SOUTH SAN FRANCISCO
MUNICIPAL SERVICES BUILDING
COMMUNITY ROOM
WEDNESDAY, NOVEMBER 11, 2010
CALLED TO ORDER:
ROLL CALL:
AGENDA REVIEW
6:32 p.m.
_.~ T
Present: Boardmembers Garbarino, Gonzalez and
Matsumoto, Vice Chairman Mullin and
Chairman Addiego.
Absent: None.
Executive Director Nagel advised the Agency that the Closed Session item was only
necessary if Council had questions related to Item No. 3.
CONSENT CALENDAR
Motion to approve the minutes of October 13, 2010.
2. Motion to approve expense claims of November 10, 2010.
Motion-Boardmember Garbarino/Second-Boardmember Matsumoto: to approve the Consent
Calendar. Unanimously approved by voice vote.
ADMINISTRATIVE BUSINESS
3. Resolution No. 2010 authorizing the Executive Director to execute a Purchase and Sale
Agreement for 217-219 Grand Avenue and a vacant lot with APN 012-316-060 in the
amount of $L5 million and authorizing a Budget Amendment for expenditure of tax
increment funds.
Community Development Consultant Sanchez presented the staff report recommending that the
Agency approve a resolution authorizing the acquisition of parcels on the 200 block of Grand
Avenue. The acquisition of these parcels would contribute to a 27,000 square foot area in a key
development location in the Downtown District.
Boardmember Matsumoto questioned what would become of the two popular restaurants
presently located on one of the sites when development came to fruition.
Consultant Sanchez advised the existing tenants would be entitled to relocation benefits.
Motion- Boardmember Matsumoto /Second- Boardmember Gonzalez: to approve Resolution No.
21-2010. Unanimously approved by voice vote.
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
Item not heard.
ADJOURNMENT
Being no further business, Chairman Addiego adjourned the meeting at 6:37 p.m.
Submitted by:
~(`L/ ~
~sartinelh, rk
City of South San Francisco
Approved:
Kevin Mullin, Chairman
City of South San Francisco
REGULAR REDEVELOPMENT AGENCY MEETING
MINUTES
NOVEMBER 11, 2010
PAGE 2
Listing of RDA Payments for Council Review
RDA A GENDA ITEM # 2
I certify that the payments shown on this payment register are
accurate and sufficient funds were available for payment.*
DATED, ~~.~ ~i (C7
FINANCE DIRECTOR
*Note: Items below do not include payroll related payments
Checks:
Date
11/05/10
11/10/10
11/12/10
11/17/10
11/19/10
11/24/10
12/01 /10
Electronic Pavments:
Date
11/23/10
Total Pavments $
Amount
40,221.49
22,463.10
257.12
56,775.65
10,520.16
14,413.95
82, 374.05
Amount To
50,000.00 Wells Fargo
277,025.52
Description
Escrow Deposit for 217-219 Grand Ave
Acquisition
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°°~~~~s=~~~ Redevelopment Agency
0
H
-Staff Repot
c9lIFOR~~~
RDA AGENDA ITEM # 3
DATE: December 8, 2010
TO: Redevelopment Agency Board
FROM: Marty Van Duyn, Assistant Executive Director
SUBJECT: MOTION TO ACCEPT THE 356 GRAND AVENUE ABATEMENT AND
BUILDING DEMOLITON PROJECT AS COMPLETE IN ACCORDANCE
WITH THE PLANS AND SPECIFICATIONS
RECOMMENDATION
It is recommended that the Agency Board, by motion, accept the 356 Grand Avenue Abatement
and Demolition Project as complete in accordance with the plans and specifications.
BACKGROUND/DISCUSSION
On September 8, 2010, the Redevelopment Agency Board and City Council approved the
construction contract with Silverado Contractors, Inc.; awarding $94,700 for the Abatement and
Demolition. The project was awarded on September 24'" and completed on October 29, 2010.
FUNDING
Funds were available in the 2010-11 Capital Improvement Program budget and while the bid was in
the amount of $94,700 the final compensation will be $90,478.23. There was a change order
eliminating the addition of a wall cap and the removal of basement brick which were unnecessary.
CONCLUSION
Silverado Contractors, Inc. did the work in an extremely professional and timely manner. The
demolition was challenging due to extensive and unanticipated steel rods and seismic I-beams
encountered in the building facade and ceilings. The demolition work was inspected by city staff
and found to be completed in accordance with the plans and specification. Staff recommends
acceptance of this project as complete. A Notice of Completion will be filed with the County
accordingly and payment performance bonds and retention funds will be released to Silverado
Contractors, Inc. at the end of the thirty-day lien period.
By: ' Approved: ~ ~'~
Marty Van Duyn Barry M. Nagel
Assistant Executive Di 'tor Executive Director
o °°sx~~s=~~~ Redevelopment Agency
Staff Repot
c'~LIFOR~~A
RDA AGENDA ITEM # 4
DATE: December 8. 2010
TO: Redevelopment Agency Board
FROM: Marty Van Duyn, Assistant Executive Director
SUBJECT: A RESOLUTION APPROVING AN ADDITIONAL ADVANCE FOR THE
REMODEL OF DI NAPOLI PIZZERIA & RISTORANTE IN AN AMOUNT
NOT TO EXCEED $35,200 AND AUTHORIZING THE EXECUTIVE
DIRECTOR TO EXECUTE ALL REQUIRED LOAN DOCUMENTS
RECOMMENDATION
It is recommended that the Redevelopment Agency Board adopt the attached Resolution
approving an additional advance to the original loan for Di Napoli Pizzeria &Ristorante in
an amount not to exceed $35,200 for completion of the remodel of Di Napoli and
authorizing the Executive Director to execute all required loan documents.
BACKGROUND/DISCUSSION
In June of 2009, the Redevelopment Agency Board approved a Ioan for Di Napoli in the amount
of $350,000 to assist the business owners in the remodel and expansion of the restaurant, located
at the corner of Grand and Cypress Avenues. Since that time, Di Napoli has undertaken and
completed their expansion into the former State's Tavern, creating a wonderful new tenant space
and lovely Ristorante. The design of the new corner replicates the beautiful historic the entry and
wraps it around to Cypress Avenue with large new windows and awnings. At this time, the
owners are completing the renovation of the former space which will allow them to move
seamlessly between the two areas. The project was delayed much beyond the owner's
expectations due to problems with their former contractor. Once resolved they were able to
complete the expansion and open for business in the new area. They have been waiting to
celebrate the grand opening until they were able to open both areas for business which they hope
to do in the near future. Costs of construction were higher than anticipated and the owner's could
benefit from a small additional advance to help them expedite the completion of the entire
project.
FUNDING
Funds are available in the current Agency operating budget for such activities. The project has
already provided benefits to the community by undertaking a beautiful remodel of a less than
attractive former bar and by creating three new full time jobs and increased hours for part-time
staff who were previously employed by Di Napoli. This project serves to highlight the impact of
the economic development component of the Redevelopment Agency business loan program.
Staff Report
Subject: Additional Loan for Di Napoli Pizzeria &Ristorante
Page 2
The terms of the loan would be simple interest of four (4%) percent, be amortized over a term of
fifteen (15) years and be secured by the lease and leasehold improvements. The total loan amount
including the first note of $350,000 would then be $385,200. The new amount would be
considered an additional advance to the first Note.
CONCLUSION
Staff recommends that the Agency Board approve the attached Resolution for an additional
advance in the amount of $35,200 for Di Napoli Pizzeria &Ristorante to enable the business
owners to complete the remodel and. expansion and authorize the Executive Director to execute
all required loan documents.
~!
/'
By: / ~ /62 '''~~~~~~
Marty Van Duyn
Assistant Executive Director
BMN:MVD:NF
Attachment: Resolution
Amended Deed of Trust
Approv `~ L,
Barry M. Nagel
Executive Director
Amended Owner Participation Agreement
Amended and Restated Secured Note
RESOLUTION NO
REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO.
STATE OF CALIFORNIA
A RESOLUTION APPROVING AN INCREASE IN LOAN AMOUNT FOR THE
REHABILITATION OF THE PROPERTY LOCATED AT 200-202 GRAND
AVENUE, AND AUTHORIZING THE EXECUTION OF AN AMENDMENT TO
AN EXISTING OWNER PARTICIPATION AND LOAN AGREEMENT WITH DI
NAPOLI PIZZERIA & RISTORANTE, INC. AND RELATED DOCUMENTS
WHEREAS, the Redevelopment Agency ol~ the City of South San Francisco
("Agency") is a redevelopment agency existing pursuant to the Community
Redevelopment Law; California Health and Safety Code Section 33000; et seq. (the
"CRL"); and pursuant to the authority granted thereunder; has the responsibility to carry
out the Redevelopment Plan (the "Redevelopment Plan") for the Downtown/Central
Redevelopment Project Area (the "Project Area");
WHEREAS, the Agency operates a commercial rehabilitation loan program
pursuant to which the Agency provides financing for the rehabilitation of buildings
located within the Project Area;
WHEREAS, Di Napoli Pizzeria & Ristorante; lnc. ("Borrower'') leases the
property located in the Project Area at 200-202 Grand Avenue. and known as San Mateo
County Assessor's Parcel No. O] 2-315-080 (the "Property'); and Borrower has applied
to Agency for financing in order to rehabilitate and improve the Property (the "Project"):
WHEREAS, the Project is of benefit to the Project Area because it will improve
the streetscape appearance of the Property, permit Borrower to expand Borrower's
restaurant; and provide increased job and economic development opportunities:
WHEREAS; the Agency previously approved provision of a loan to Borrower for
the Project in the amount of Three Hundred Fifiy Thousand Dollars ($350,000) (the
"Loan") and approved execution of an Owner Participation and Loan Agreement (the
"OPA") between Agency and Borrower describing the terms and conditions for the
Loan_
WHEREAS, in order to complete the Project the Borrower has requested an
increase in the Loan amount in an amount not to exceed Thirty-Five Thousand Two
Hundred Dollars ($35,200) (the "Additional Advance") and
WHEREAS, Borrower and Agency staff have negotiated the following documents
which set forth the terms and conditions for the Additional Advance: (i) an Amendment
to Owner Participation Agreement (the "OPA Amendment"); (ii) an Amended and
1555778.1
Restated Secured Promissory Note (the "Restated Note"); and (iii) an amendment to the
existing Deed of Trust; Assignment of Rents; Security Agreement and Fixture Filing (the
"Deed of Trust Amendment") (all of the foregoing; collectively; the "Amended Loan
Documents").
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency
of the City of South San Francisco that it hereby:
I. Finds that the rehabilitation of the Property in accordance with the OPA and the
OPA Amendment and the provision of the Additional Advance for the Project will be of
benefit to the Project Area, will further the goals of the Redevelopment Plan, and will be
consistent with the implementation plan adopted in connection therewith.
2. Approves the provision of the Additional Advance pursuant to the terms and
conditions set forth in the Amended Loan Documents.
3. Approves the Amended Loan Documents; authorizes the Executive Director or
his designee to execute and deliver the OPA Amendment and the Deed of Trust
Amendment substantially in the form on file with the Agency Secretary; and authorizes
the recordation of the Deed of Trust Amendment in the Official Records of San Mateo
County.
4. Authorizes the Executive Director or his designee to execute and deliver such
other instruments and to take such other actions as necessary to carry out the intent of this
Resolution.
* * * ~
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
1555778.1 2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of South San
Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder's use.
FIRST AMENDMENT TO DEED OF TRUST
This First Amendment to Deed of Trust (this "Deed of Trust Amendment") is
made this day of , 2010 by and between Di Napoli Pizzeria
& Ristorante, a California corporation ("Trustor") and the Redevelopment Agency of the
City of South San Francisco, a public body corporate and politic ("Beneficiary") as
Beneficiary. Trustor and Beneficiary are hereafter collectively referred to as the
"Parties."
RECITALS
A. This First Amendment to Deed of Trust pertains to that certain Deed of
Trust dated as of June 24, 2009, executed by Trustor in favor of Beneficiary, recorded
July 23, 2009 as Instrument No. 2009-098733 in the Official Records of San Mateo
County, California (the "Existing Deed of Trust") and affecting the property described
in Exhibit A attached hereto and incorporated herein by reference.
B. The obligations secured by the Existing Deed of Trust have been
modified, and Trustor and Beneficiary have agreed to amend the Existing Deed of Trust
to accurately reflect the obligations secured thereby.
NOW THEREFORE, the Parties agree as follows:
1. The Note referred to in the Existing Deed of Trust has been amended and
restated in its entirety by that certain Amended and Restated Secured Promissory Note,
dated as of the date hereof (the "Restated Note") in the face amount of Three Hundred
Eighty-Five Thousand, Two Hundred Dollars ($385,200), and each reference in the
Existing Deed of Trust to the Note shall be a reference to the Restated Note, as the
same may hereafter be further amended or modified. The Restated Note is among the
obligations contemplated in Section 2 of the Existing Deed of Trust.
2. The Property (as defined and described in the Existing Deed of Trust)
shall remain subject to the lien, charge and encumbrance of the Existing Deed of Trust
and nothing herein contained or done pursuant hereto shall affect or be construed to
affect the liens, charges or encumbrances of the Existing Deed of Trust, or the priority
i55238o.i
thereof over other liens, charges or encumbrances, or to release or affect the liability of
any party or parties who may now or hereafter be liable under or on account of the
Restated Note and/or the Existing Deed of Trust.
3. All terms and conditions of the Existing Deed of Trust not expressly
modified herein remain in full force and effect, without waiver or amendment. This Deed
of Trust Amendment and the Existing Deed of Trust shall be read together, as one
document.
4. This Deed of Trust Amendment may be executed in counterparts, each of
which shall constitute an original and all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Deed of Trust
Amendment as of the date first written above.
TRUSTOR:
DI NAPOLI PIZZERIA 8~ RISTORANTE,
INC., a California corporation
By:
Print name:
Title:
BENEFICIARY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN
FRANCISCO
By:
Print name:
Title:
Attest:
Agency Secretary
Approved as to form:
Agency Counsel
SIGNATURES MUST BE NOTARIZED.
155238o.i 2
Exhibit A
PROPERTY
(Attach legal description.)
~55238o.i
State of California
County of San Mateo
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
(Seal)
~55238o.i
AMENDMENT TO OWNER PARTICIPATION AND LOAN AGREEMENT
This Amendment to Owner Participation and Loan Agreement (this "Amendment") is
entered into effective as of . 20_, ("Effective Date'') by and between Di
Napoli Pizzeria & Ristorante, a California corporation ("Borrower'') and the Redevelopment
Agency of the City of South San Francisco, a public body corporate and politic ("Agency'').
Borrower and Agency are hereafter collectively referred to as the "Parties." Capitalized terms
used but not defined herein shall have the meaning ascribed to such terms in the Original Loan
Agreement (defined below).
WHEREAS; the Parties entered into that certain Owner Participation and Loan
Agreement dated as of June 24; 2009 (the "Original Loan Agreement") pursuant to which the
Agency agreed to provide a loan to Borrower (the "Loan") in accordance with the terms and
conditions described therein:
WHEREAS, in connection with the Original Loan Agreement; Borrower executed a
Secured Promissory Note dated as of June 24, 2009 in the principal amount of Three Hundred
Fifty Thousand Dollars ($350,000); a Memorandum of Owner Participation and Loan Agreement
dated as of June 24, 2009 and recorded in the Official Records of San Mateo County on July 23;
2009 as Instrument No. 2009-098734; and a Leasehold Deed of Trust; Assignment of Rents;
Security Agreement and Fixture Filing dated as of June 24, 2009 and recorded in the Official
Records of San Mateo County on July 23; 2009 as Instrument No. 2009-098733:
WHEREAS, Borrower has requested, and Agency has agreed to increase the principal
amount of the Loan by the sum of Thirty-Five Thousand Two Hundred Dollars ($35;200);
WHEREAS, to reflect the foregoing increase in the amount of the Loan.. concurrently
with this Amendment; Borrower and Agency shall execute (i) an Amended and Restated Secured
Promissory Note ("Restated Note"); and (ii) a First Amendment to Deed of Trust ("Deed of
Trust Amendment"); and
WHEREAS, the Parties desire to amend the Original Loan Agreement to reflect the
foregoing.
NOW THEREFORE; in consideration of the mutual covenants of the Parties and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged;
the Parties hereby agree as follows.
1. The Loan amount is hereby increased by the sum of Thirty-Five Thousand Two
Hundred Dollars ($35;200) to a total of Three Hundred Eighty-Five Thousand Two Hundred
Dollars ($385;200).
2. Each reference in the Original Loan Agreement to the Note shall be a reference to
the Restated Note as such may be hereafter amended or modified.
1552311.1
3. Each reference in the Original Loan Agreement to the Deed of Trust shall be a
reference to the Deed of Trust as amended by the Deed of Trust Amendment, as the same may
hereafter be amended or modified.
4. The Loan proceeds shall be used solely for the purposes stated in the Original
Loan Agreement or for such other purposes as may be approved in writing by the Agency
Executive Director or his designee.
5. All other provisions of the Loan Agreement shall remain unchanged and in full
force and effect.
6. This Amendment may be executed in counterparts; each of which shall constitute
an original and all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first written above.
AGENCY
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN
FRANCISCO
By:
Print name:
Title:
Attest:
Agency Secretary
Approved as to form
Agency Counsel
BORROWER
DI NAPOLI PIZZERIA & RISTORANTE,
INC., a California corporation
By:
Print name:
Title:.
155231 I.1 2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the City of South San Francisco
400 Grand Avenue
South San Francisco. CA 94080
Attn: Executive Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103; 27383
Space above this line for Recorders use.
FIRST AMENDMENT TO DEED OF TRUST
This First Amendment to Deed of Trust (this "Deed of Trust Amendment") is made this
day of , 2010 by and between Di Napoli Pizzeria & Ristorante, a California
corporation ("Trustor") and the Redevelopment Agency of the City of South San Francisco; a
public body corporate and politic ("Beneficiary") as Beneficiary. Trustor and Beneficiary are
hereafter collectively referred to as the "Parties.''
RECITALS
A. This First Amendment to Deed of Trust pertains to that certain Deed of Trust
dated as of June 24, 2009, executed by Trustor in favor of Beneficiary, recorded July 23; 2009 as
Instrument No. 2009-098733 in the Official Records of San Mateo County, California (the
"Existing Deed of Trust") and affecting the property described in Exhibit A attached hereto and
incorporated herein by reference.
B. The obligations secured by the Existing Deed of Trust have been modified_ and
Trustor and Beneficiary have agreed to amend the Existing Deed of Trust to accurately reflect
the obligations secured thereby.
NOW THEREFORE, the Parties agree as follows:
l . The Note referred to in the Existing Deed of Trust has been amended and restated
in its entirety by that certain Amended and Restated Secured Promissory Note. dated as of the
date hereof (the "Restated Note") in the face amount of Three Hundred Eighty-Five Thousand;
Two Hundred Dollars ($385,200), and each reference in the Existing Deed of Trust to the Note
shall be a reference to the Restated Note, as the same may hereafter be further amended or
modified. The Restated Note is among the obligations contemplated in Section 2 of the Existing
Deed of Trust.
2. The Property (as defined and described in the Existing Deed of Trust) shall
remain subject to the lien; charge and encumbrance of the Existing Deed of Trust and nothing
herein contained or done pursuant hereto shall affect or be construed to affect the liens, charges
or encumbrances of the Existing Deed of Trust, or the priority thereof over other liens; charges or
encumbrances, or to release or affect the liability of any party or parties who may now or
hereafter be liable under or on account of the Restated Note and/or the Existing Deed of Trust.
155238o.i
3. All terms and conditions of the Existing Deed of Trust not expressly modified
herein remain in full force and effect, without waiver or amendment. This Deed of Trust
Amendment and the Existing Deed oI~ Trust shall be read together, as one document.
4. This Deed of Trust Arr~endment may be executed in counterparts, each of which
shall constitute an original and all of which taken together shall constitute one and the same
instrument.
TN WITNESS WHEREOF. the Parties have executed this Deed of Trust Amendment as
of the date first written above.
TRUSTOR:
DI NAPOLI PIZZERIA & RISTORANTE,
INC., a California corporation
By:
Print name:
Title:
BENEFICIARY:
REDEVELOPMENT AGENCY
OF THE CITY OF SOUTH SAN
FRANCISCO
By:
Print name:
Title:
Attest:
Agency Secretary
Approved as to form:
Agency Counsel
SIGNATURES MUST BE NOTARIZED.
~552g8o.i 2
Exhibit A
PROPERTY
(Attach legal description.)
~55238o.i
State of California
County of San Mateo
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
(Seal)
X552380. i
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$385,200 South San Francisco; California
.2010
FOR VALUE RECEIVF,D, Di Napoli Pizzeria & Ristorante, a California
corporation ("Borrower") promises to pay to the Redevelopment Agency of the City of
South San Francisco, a public body corporate and politic ("Agency") in lawful money of
the United States of America, the principal sum of Three Hundred Eighty-Five Thousand;
Two Hundred Dollars ($385,200), or so much thereof as may be advanced by Agency
pursuant to the Loan Agreement referred to below, together with interest on the
outstanding principal balance in accordance with the terms and conditions described herein.
This Amended and Restated Secured Promissory Note (this "Note") has been
executed and delivered pursuant to and in accordance with the terms and conditions of
the Owner Participation and Loan Agreement ("Original Loan Agreement"), by and
between Borrower and Agency dated as of June 24, 2009, as amended by an Amendment
to Owner Participation and Loan Agreement dated as of the date hereof and executed by
Borrower and Agency (as so amended, hereafter, the "Loan Agreement"). and is subject
to the terms and conditions of the Loan Agreement, which are, by this reference,
incorporated herein and made a part hereof. Capitalized terms used in this Note without
definition shall have the meanings ascribed to such terms in the Loan Agreement.
This Note is secured by a Leasehold Deed of Trust, Assignment of Rents.
Security Agreement and Fixture Filing dated as of June 24, 2009 and recorded in the
Official Records of San Mateo County on July 23; 2009 as Instrument No. 2009-098733
("Existing Deed of Trust") executed by Borrower as Trustor; for the benefit of Agency.
encumbering Borrower's leasehold interest in the real property described in the Existing
Deed of Trust. as amended by a First Amendment to Deed of Trust dated as of the date
hereof. The Existing Deed of Trust as so amended is hereafter referred to as the "Deed
of Trust." Agency shall be entitled to the benefits of the security provided by the Deed
of Trust and shall have the right to enforce the covenants and agreements of Borrower
contained herein; in the Deed of Trust and in the Loan Agreement. As used herein. the
term "Agency Documents" means; collectively, the Deed of Trust, the Loan Agreement.
and this Amended and Restated Secured Promissory Note.
This Note amends and restates the terms of the note dated as of June 24; 2009
("Existing Note") which was executed by Borrower and delivered to Agency pursuant to
the terms of the Original Loan Agreement. Prior to the date hereof, the maximum
principal balance of the Existing Note was $350,000. On the date hereof the maximum
principal balance of the Note is hereby increased to Three Hundred Eighty-Five
Thousand, Two Hundred Dollars ($385;200). This Note is not in payment, novation,
satisfaction or cancellation of the indebtedness evidenced by the Existing Note, such
indebtedness evidenced thereby being hereby ratified and confirmed.
1552351.1
PAYMENTS
1.1 INTEREST. Interest shall accrue on the outstanding principal balance of
this Note at the rate of four percent (4%) simple interest per annum, commencing upon
July I, 2010. Interest shall be calculated on the basis of a year of 365 days. and charged
for the actual number of days elapsed. No interest shat] accrue prior to July 1, 2010.
Agency shall credit payments made under this Note first to any unpaid late charges and
other costs and fees then due, then to accrued but unpaid interest, and then to principal.
1.2 PAYMENT DATES: MATURITY DATE. Commencing upon August 1,
20l 0 (the "First Payment Date"), and on the first (l S') day of each calendar month
thereafter, Borrower shall make monthly payments of combined principal and interest
until the entire indebtedness evidenced hereby is fully paid, except that all remaining
indebtedness, if not sooner paid, shall be due and payable upon the Maturity Date
(defined below). The amount of the monthly payments to be paid beginning on the First
Payment Date will be an amount equal to the payment necessary to fully amortize the
principal amount of this Note, together with accrued interest at the interest rate specified
in Section 1 above over a 168 month period. The entire outstanding principal balance of
this Note; together with all interest and all other sums accrued hereunder shall be payable
in full on the date (the "Maturity Date") which is the earlier of (i) June 24, 2024, which
is the fifteenth (l 5'h) anniversary of the date of the Original Note, or (ii) the date that the
Lease terminates. Payments shall be credited first to any unpaid late charges and other
costs and fees then due, then to accrued interest; and then to principal. ]n no event shall
any amount due under this Note become subject to any rights; offset. deduction or
counterclaim on the part of Borrower.
1.3 DUE ON TRANSFER OR DEFAULT. The entire unpaid principal
balance and all sums accrued hereunder shall be immediately due and payable upon the
Transfer (as defined in Section 4.7 of the Loan Agreement) absent Agency consent; of all
or any part of Borrower's interest in the Property or the Improvements, or any interest
therein, or upon the occurrence of an Event of Default under the Loan Agreement. the
Deed of Trust or this Note, subject to the expiration of any applicable cure period.
Without limiting the generality of the foregoing, this Note shall not be assumable without
Agency's prior written consent, which consent may be granted or denied in Agency's
sole discretion.
1.4 PREPAYMENT. Borrower may, without premium or penalty. at any time
and from time to time. prepay all or any portion of the outstanding principal balance due
under this Note. Prepayments shall be applied first to any unpaid late charges and other
costs and fees then due, then to accrued but unpaid interest; and then to principal.
1.5 MANNER OF PAYMENT. All payments on this Note shall be made to
Agency at 400 Grand Avenue; South San Francisco; CA 94080; or such other place as
Agency shall designate to Borrower in writing; or by wire transfer of immediately
available funds to an account designated by Agency in writing.
1552351.1 2
DEFAULTS
2.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an event of default hereunder ("Event of Default"):
(a) Borrower fails to pay when due any sum payable hereunder and
such failure continues for ten (10) days after Agency notifies Borrower thereof in writing.
(b) Borrower fails to maintain insurance on the Property and the
Project as required pursuant to the Agency Documents and Borrower fails to cure such
default within ] 0 days.
(c) Pursuant to or within the meaning of the United States Bankruptcy
Code or any other federal or state law relating to insolvency or relief of debtors
("Bankruptcy Law"); Borrower (i) commences a voluntary case or proceeding; (ii)
consents to the entry of an order for relief against Borrower in an involuntary case; (iii)
consents to the appointment of a trustee, receiver, assignee; liquidator or similar official
for Borrower; (iv) makes an assignment for the benefit of its creditors, or (v} admits in
writing its inability to pay its debts as they become due.
(d) A court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (i) is for relief against Borrower in an involuntary case; (ii)
appoints a trustee; receiver; assignee, liquidator or similar official for Borrower or
substantially al] of Borrower's assets, (iii) orders the liquidation of Borrower; or (iv)
issues or levies a judgment writ, warrant of attachment or similar process against the
Property or the Project. and in each case the order or decree is not released. vacated,
dismissed or fully bonded within 60 days after its issuance.
(e) Borrower shall have assigned its assets for the benefit of its
creditors (other than pursuant to a mortgage loan) or suffered a sequestration or
attachment of or execution on any substantial part of its property, unless the property so
assigned; sequestered. attached or executed upon shall have been returned or released
within sixty (60) days after such event (unless a lesser time period is permitted for cure
under any other mortgage on the Property, in which event such lesser time period shall
apply under this subsection as well) or prior to any sooner sale pursuant to such
sequestration, attachment. or execution;
(f) Borrower shall have voluntarily suspended its business or
Borrower shall have been dissolved or terminated;
(g) A default arises under any debt instrument secured by a mortgage
or deed of trust on Borrower's leasehold interest in the Property and remains uncured
beyond any applicable cure period such that the holder of such instrument has the right to
accelerate payment thereunder.
(h) Subject to Borrower's right to contest the following charges
pursuant to the Agency Documents, if Borrower fails to pay prior to delinquency taxes or
assessments due on the Property or the Project or fails to pay when due any other charge
1552351.1 3
that may result in a lien on the Property or the Project, and Borrower fails to cure such
default within thirty (30) days of date of delinquency, but in all events upon the
imposition of any such tax or other lien.
(i) Any representation or warranty contained in this Agreement or any
application, financial statement, certificate or report furnished in connection with the
Loan or in connection with any request for disbursement of Loan Proceeds proves to have
been false or misleading in any material adverse respect when made.
(j) Borrower defaults in the performance of any term, provision,
covenant or agreement (other than an obligation enumerated in this Section 6 contained
in this Note, the Loan Agreement, or the Deed of Trust, and unless such document
specifies a different cure period for such default, the default continues for ten (l0) days
in the event of a monetary default or thirty (30) days in the event of a nonmonetary
default after the date upon which Agency shall have given written notice of the default to
Borrower (or such longer time as Agency may agree upon in writing); provided that in
each case Borrower commences to cure the default within thirty (30) days and thereafter
prosecutes the curing of such default with due diligence and in good faith.
(k) A default arises under the Lease and remains uncured beyond any
applicable cure period such that the Landlord has the right to terminate the Lease.
2.2 REMEDIES. Upon the occurrence of an Event of Default hereunder;
Agency may, at its option (i) by written notice to Borrower, declare the entire unpaid
principal balance of this Note.. together with all accrued interest thereon and all sums due
hereunder; immediately due and payable regardless of any prior forbearance. (ii) exercise
any and all rights and remedies available to it under applicable law; and (iii) exercise any
and all rights and remedies available to Agency under this Note and the other Agency
Documents. including without limitation the right to pursue foreclosure under the Deed
of Trust. Borrower shall pay all reasonable costs and expenses incurred by or on behalf
of Agency including; without limitation, reasonable attorneys' fees, incurred in
connection with Agency's enforcement of this Note and the exercise of any or all of its
rights and remedies hereunder and all such sums shall be a part of the indebtedness
secured by the Deed of Trust.
2.3 DEFAULT RATE. Upon the occurrence of an Event of Default, interest
shall automatically be increased without notice to the rate of ten percent (l 0%) per
annum (the "Default Rate"); provided however, if any payment due hereunder is not
paid when due, the Default Rate shall apply commencing upon the due date for such
payment. When Borrower is no longer in default; the Default Rate shall no longer apply;
and the interest rate shall once again be the rate specified in the first paragraph of this
Note. Notwithstanding the foregoing provisions.. if the interest rate charged exceeds the
maximum legal rate of interest, the rate shall be the maximum rate permitted by law. The
imposition or acceptance of the Default Rate shall in no event constitute a waiver of a
default under this Note or prevent Agency from exercising any of its other rights or
remedies.
1552351.1 4
MISCELLANEOUS
3.l WAIVER. The rights and remedies of Agency under this Note shall be
cumulative and not alternative. No waiver by Agency of any right or remedy under this
Note shall be effective unless in a writing signed by Agency. Neither the failure nor any
delay in exercising any right, power or privilege under this Note will operate as a waiver
of such right; power or privilege, and no single or partial exercise of any such right,
power or privilege by Agency will preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege. To the
maximum extent permitted by applicable law (a) no claim or right of Agency arising out
of this Note can be discharged by Agency, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by Agency; (b) no waiver
that may be given by Agency will be applicable except in the specific instance for which
it is given; and (c) no notice to or demand on Borrower will be deemed to be a waiver of
any obligation of Borrower or of the right of Agency to take further action without notice
or demand as provided in this Note. Borrower hereby waives presentment. demand,
protest; notices of dishonor and of protest and all defenses and pleas on the grounds of
any extension or extensions of the time of payment or of any due date under this Note, in
whole or in part, whether before or after maturity and with or without notice.
3.2 NOTICES. Any notice required or permitted to be given hereunder shall
be given in accordance with Section 11.3 of the Loan Agreement.
33 SEVERABILITY. If any provision in this Note is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of this Note
will remain in full force and effect. Any provision of this Note held invalid or
unenforceable only in part or degree will remain in full force and effect to the extent not
held invalid or unenforceable.
3.4 GOVERNING LAW; VENUE. This Note shall be governed by the laws
of the State of California without regard to principles of conflicts of laws. All persons
and entities in any mam~er obligated under this Note consent to the jurisdiction of any
federal or state court in the jurisdiction in which the Property is located (the "Property
Jurisdiction''). Borrower agrees that any controversy arising under or in relation to the
Note or any other Agency Document shall be litigated exclusively in 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 the Note and any other Agency Document. Borrower irrevocably
consents to service, jurisdiction, and venue of such courts for any such litigation and
waives any other venue to which it might be entitled by virtue of domicile. habitual
residence or otherwise.
3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its
successors and assigns and shall accrue to the benefit of Agency and its successors and
assigns.
1552351.1
3.6 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in
this Note are provided for convenience only and will not affect its construction or
interpretation.
3.7 RELATIONSHIP OF THE PARTIES. The relationship of Borrower and
Agency under this Note is solely that of borrower and lender, and the loan evidenced by
this Note and secured by the Deed of Trust will in no manner make Agency the partner or
joint venturer of Borrower.
3.8 TIME IS OF THE ESSENCE. Time is of the essence with respect to
every provision of this Note.
IN WITNESS WHEREOF; Borrower has executed and delivered this Note as of
the date first written above.
BORROWER
Di Napoli Pizzeria & Ristorante; Inc.,
a California Corporation
By:
Print Name:
Title:
1552351.1 6
°~~ S . ~ Redevelopment Agency
0
A
J O
Staff Repot
c9lIFOR~1~
RDA AGENDA ITEM # S
DATE: December 8, 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 207 GRAND
AVENUE IN THE AMOUNT OF $350,000.
RECOMMENDATION
It is recommended that the Redevelopment Agency Board adopt a Resolution authorizing
the Executive Director to execute a Purchase and Sale Agreement for 207 Grand Avenue
in the amount of $350,000.
BACKGROUND/DISCUSSION
On November 10, 2010, the Redevelopment Agency authorized the Executive Director to enter
into a purchase and sale agreement to acquire three parcels on the 200 block of Grand Avenue.
These parcels are now in escrow and will be closing on December 10. At this time, staff is
recommending that the Redevelopment Agency Board authorize the Executive Director to
execute a purchase and sale agreement for the acquisition of 207 Grand Avenue (Lot 2 on Exhibit
1) for $350,000. The appraisal report the Agency commissioned indicates the agreed upon price is
a fair purchase price for the lot.
By acquiring this parcel, the Agency will come close to assembling a 27,200 square foot parcel
that would be ideal for a major development in the Downtown. Agency staff will continue to
pursue the acquisition of one remaining lot necessary for the full assemblage. If successful in
acquiring all of the proposed parcels, the Agency would be able to develop amixed-use project
containing 42 to 45 units and 14,000 square feet of retail (see Exhibit 2). As conceived, the
project can be developed in one or two phases. Upon acquiring 207 Grand, the Agency would be
able to develop phase one of the project which would consist of 20-25 units and 7,000 square feet
of retail.
FUNDING
Funds are available in the current CIP budget to acquire the property.
Staff Report
Subject: Purchase and Sale Agreement for 207 Grand Avenue
Page 2
CONCLUSION
It is recommended that the Redevelopment Agency Board adopt a Resolution authorizing the
Executive Director to execute a Purchase and Sale Agreement. for 207 Grand Avenue.
~~ ~~ ~~
By: fi ~~z~~ -vas
Marty Van Duyn
Assistant Executive Director
~~,
Approve `~
Barry M. Nagel
Executive Director
Attachment: Resolution
Purchase and Sale Agreement
Exhibit 1
Exhibit 2
BMN:MVD:AFS
RESOLUTION NO
REDEVELOPMENT AGENCY, CITY OF SOt1TH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE
AND SALE AGREEMENT 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 207 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 Three
Hundred Fifty Thousand Dollars ($350,000) ("Purchase Price").
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of
South San Francisco that it hereby:
1. Approves the expenditure of tax increment funds in the amount of Three Hundred Fifty
Thousand Dollars ($350,000) for the acquisition of the Property.
2. 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 Director in consultation with Agency
Counsel.
1542637.1
3. 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 and recordation of a Certificate of
Acceptance for the Property and the procurement of a policy of title insurance.
l 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 AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into
effective as of December 8, 2010 (the date this Agreement is approved by Buyer's governing
board and hereafter; the "Effective Date") by and between Cash Loan, lnc., a California
corporation ("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 207 Grand Avenue in the City of South San Francisco. known as San
Mateo County Assessor's Parcel No. Olt-316-100, and more 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 ("lmprovements"), (iii) all non-
moveable equipment and fixtures located on the Land or in the lmprovements, (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'); and
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.
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 terns and conditions set forth
in this Agreement.
2. Purchase Price. The purchase price for the Property shall be Three Hundred Fifty
Thousand Dollars ($350,000) ("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;
(b) The Redevelopment Plan for the Project Area; and
1555534.1
1
Form 10-16-10 // 1340947.2
(c) The items described as exception numbers 1 and 3 in that certain preliminary
report for the Property dated October 8. 20l 0 and issued by Stewart Title Company (collectively,
together with such other title exceptions as Buyer may approve in writing, the "Permitted
Exceptions").
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, and 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 ] 00 Pine Street.
Suite 450. San Francisco; CA 941 1 l ("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.
]f 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 further obligations hereunder except as
expressly set forth herein.
6. Title Documents. By not later than three (3) business 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 seven (7)
business 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 documents 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: provided however, Buyer
agrees that Buyer shall provide to Seller a copy of any Title Report and Phase 1 Report Buyer has
obtained for the Property.
1555534.1 2
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
]nsurance Policy) to be issued by Title Company in the amount of the Purchase Price for the
benefit and protection of Buyer; showing fee simple title to the 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 Title 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) ]ntentionally omitted.
(iii) Seller's affidavit ofnon-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;
(iv) Intentionally omitted.
(v) Evidence that all utilities payable with respect to the Property have
been paid prorated as of the Close of Escrow;
(vi) ]ntentionally omitted
(vii) All original leases, rental agreements and contracts to be assumed
by Buyer (if any);
(viii) if applicable; an Assignment of 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
(ix) 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 following charges deducted from the funds
to be distributed to Seller at Close of Escrow, no later than one (1) business day prior to
1555534.1 3
Form 10-16-10 // 1340947.2
Close of Escrow, Seller shall deposit into escrow immediately 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) Bu er.
(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 of Acceptance in the form shown in
Exhibit B, as required by California Government Code Section 2728]
(ii) if applicable, the Assignment of Leases, executed by Buyer;
(iii) if applicable, the Assignment of Contracts, executed by Buyer;
and
(iv) Such additional duly executed instruments and documents as the
Escrow Agent may reasonably require to consummate the transaction
contemplated hereby.
(B) No less than one (l) 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 twenty-three (23) days
following the Effective Date, provided that all of Buyer's conditions to closing (described in
Sections l l 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 Escrow.
1555534.1 4
Form 10-16-10 // 1340947.2
9. Closing Costs. Each Party shall pay one-half (l/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 taxes 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 (or 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 representations 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 ti, subject only to the Permitted Exceptions; (iv) Buyer's approval of
the condition of the Property and other matters pursuant to Section ] 3; and (v) approval of the
purchase of the Property by Buyer's governing board.
Should any condition to closing fail to occur, excepting any such conditions that have
been waived by Buyer. 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.
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 affecting 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 l 7.l) 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. Buyer'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 ]2) pursuant to this Section.
(a) Feasibility Studies. During the period commencing on the Effective Date and ending
on the thirtieth (30`h) day thereafter or such later date as mutually agreed upon by the
1555534.1
5
Form 10-16-10 // 1340947.2
Parties ("Due 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 laws 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) Intentionally omitted.
(d) Intentionally omitted.
(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; if any.
(f) 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.
1555534.1
6
Form 10-16-10 // 1340947.2
14. Right of Entrv. 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 conducting 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. Buyer agrees to provide Seller with copies of any reports prepared for Buyer
concerning the physical condition of the Property.
15. Seller's Conditions to Closing. The Close of Escrow 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 l 6 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 for a period of one (1) year following the Close of Escrow.
(i) Authority; Due Execution; Enforceability. Seller has the full right.. power and
authority to execute, deliver and perform all obligations of Seller under this Agreement and all
other instrwnents 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.
1555534.1 ~
Form 10-16-10 // 1340947.2
(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 are 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 of 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 ] 986. 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 l 8662.
(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.
1555534.1 8
Form 10-16-10 // 1340947.2
(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 Enviromnental 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 l 986 (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 e! seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. § 260] 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. § l 1001 e! seq.); the Porter-Cologne
Water Quality Control Act (Cal. Water Code § 13000 e~ seg.), 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 seg.), the Hazardous Waste Control Act
(Cal. Health & Safety Code § 25100 et seg.), the Hazardous Materials Release Response Plans &
Inventory Act (Cal. Health & Safety Code § 25500 et seg.), 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 believe, 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
1555534.1 9
Form 10-16-10 // 1340947.2
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;
(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
1555534.1 10
Form 10-16-10 /! 1340947.2
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 for a period of three (3) years.
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,
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 1S FAMILIAR WITH SECTION 1542 OF
THE CALIFORNIA CIVIL CODE, WH]CH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST 1N
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:
1555534.1
11
Form 10-16-10 // 1340947.2
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 becomes 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.
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. In 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 al] 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.
1555534.1 ~ 2
Form 10-16-10 // 1340947.2
24. Liquidated Damages. BY PLACING THEIR INITIALS IMMEDIATELY
BELOW, BUYER AND SELLER EACH ACKNOWLEDGE AND AGREE THAT IT WOULD
BE IMPRACTICABLE OR EXTREMELY DIFFICULT 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 1N 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 1N 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 seg.); the Federal Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (Title 42, U.S. Code Section 460] e! seg.), 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.
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. 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:
1555534.1 13
Form 10-16-10 // 1340947.2
(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 HaIL 400 Grand Avenue
South San Francisco. CA 94083
Attention: Executive Director
Telephone: (650) 829-6620
Facsimile: (650) 829-6623
with a copy to: Meyers. Nave, Riback. Silver & Wilson
555 12`h Street. Suite 1500
Oakland. CA 94607
Attention: Susan Bloch, Esq.
Telephone: (5l0) 809-2000
Facsimile: (510-444-] l08
Seller: Cash Loan. lnc.
337 Grand Avenue
South San Francisco. CA 94080
Attention: David Newman
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.
1555534.1
14
Form 10-16-10 // 1340947.2
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 ] 8. the indemnities
provided in Sections 16, 19. 25 and 26.1 and the release provided in Section 20 will survive the
termination of this Agreement, the Close of Escrow and the transfer of the Property to Buyer.
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. ]f 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.
1555534.1 ~ 5
Form 10-16-10 // 1340947.2
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 ~s Agreement.
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
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. ]f 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 following such day.
26.18 Escrow Cancellation Charees. if the escrow fails to close by reason of a
default by Buyer or Seller hereunder, such defaulting party shall pay all escrow or other Title
Company charges. ]f 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.
SIGNATURES ON FOLLOWING PAGE(S)
1555534.1
16
Form 10-16-10 // 13409472
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
By:
Agency Counsel
1555534.1
BUYER:
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH
SAN FRANCISCO
By:
Print Name:
Title:
SELLER:
Cash Loan, Inc., a California corporation
By:
Print Name:
Title:
17
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:
(Attach legal description.)
APN:
1555534.1
18
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 7l l
South San Francisco. CA 94083
Attn: Executive Director
EXEMPT FROM RECORDING FL-ES PFR
GOVERNMENT CODE ~§6103. 27383
(SPACE ABOVE THIS LINE RESER VED FOR RECORDER'S USE)
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged. Cash Loan. ]nc., a
California corporation ("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 207 Grand Avenue. South San
Francisco. California (San Mateo County Assessor's Parcel No. 012-316-100) 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
. 20l 0.
GRANTOR:
1555534.1
Cash Loan, Inc., a California corporation
By:
Print Name:
Title:
19
Form 10-16-10 // 1340947.2
Exhibit A
?he land situated in the State of California, County of San Mateo. City of South San Francisco
and described as follows:
(Attach Legal Description)
APN:
1555534.1
20
Form 10-16-10 // 1340947.2
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed dated
, 20_. executed by Cash Loan, Inc., a California corporation ("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 Agency consents to recordation of the Grant Deed by
its duly authorized officer.
Dated . 20l 0
ATTEST:
sy:
Agency Secretary
APPROVED AS TO FORM:
sy:
Agency Counsel
1555534.1
By_
Print Name:
Title:
21
Form 10-16-10 I/ 1340947.2
STATE OF CALIFORNIA
COUNTY OF SAN MATEO
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)
STATE OF CALIFORNIA )
COUNTY OF SAN MATEO )
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
1555534.1
(Seal)
22
Form 10-16-10 // 1340947.2
Exhibit 1
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