HomeMy WebLinkAboutReso RDA 2-1997 RESOLUTION NO. 2-97
REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO
STATE OF CALIFORNIA
A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT
FOR 616 ?.INDRN AV~.NU~ IN SOUTH SAN FRANCISCO
WHEREAS, the Redevelopment Agency of the City of South San Francisco
desires to purchase the First Interstate Bank property at 616 Linden Avenue.
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City
of South San Francisco that:
1. The Executive Director is hereby authorized and directed to
execute on behalf of the Redevelopment Agency of the City of South San
Francisco all purchase documents and a certificate of acceptance for
acquisition of 616 Linden Avenue. The City Clerk is hereby directed to record
the grant deed.
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 regular meeting held on the 26th day of F~brlJa~y , 1997 by the
following vote:
AYES: Boardmembers James L. Datzman. Eugene R. Mullin, John R.
Penna, Robert Yee and Chairman Joseph A. Fernekes
NOES: None
ABSTAIN: None
ABSENT: None
Redevelopment Agency of the
City of South San Francisco
A:\616LIND.RES
EXHIBIT TO RESOLUTION NO. 2-97
PARCEL NO.
TITLE REPORT NO.
PROJECT:
AGREEMENT FOR ACQUISITION OF RF_a~ PROPERTY
(ESCROW INSTRUCTIONS)
THIS AGREEMENT is entered into this day of February, 1997 by and between the
Redevelopment Agency of the City of South San Francisco (hereinafter called "Buyer"), and Dante
Volonte, Successor Trustee of the Volonte Family Trust (hereinafter called "Seller") for acquisition by
Buyer of certain real property hereinafter set forth.
IT IS HEREBY MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. Definitions. For the purposes of this Agreement, the following terms shall be defined
as follows:
1.1 Closing; Close of Escrow: Closing Date. The "Closing" or the "Close of Escrow"
shall mean the consummation of the purchase and sale of the Property in accordance with this
Agreement, as evidenced by the recording of the Deed in the official records of the county in which the
Property is located. Closing and Close of Escrow are terms used interchangeably in this Agreement. The
"Closing Date" shall be the thirtieth (30th) day after the opening of Escrow, including the date of the
opening of Escrow (or, if such day is not a regular business day, the next following regular business day),
and is the last date on which the Closing/Close of Escrow can occur, unless extended in writing by
Seller.
1.9- Deed. The term "Deed" shall mean a duly executed and acknowledged grant
deed ("Deed"), in the form of Exhibit B, conveying the Property to Buyer;
!.3 Original Documents. All original leases, warranties, guaranties, permits,
certificates, tenant files, and plans pertaining to the Property, to the extent the same are in
Seller's possession;
1.4 Non-Foreign Certificate. A duly executed certificate (the Non-Foreign
Certificate") from Seller certifying that Seller is not a "foreign persons" with the meaning of
Section 1445(0(3) of the Internal Revenue Code; and
1.5 Additional Documents. Such other documents and funds ("Seller's Additional
Documents") as may be reasonably required of Seller to close the transaction in accordance
with this Agreement, including without limitation additional escrow instructions.
1.6 Deposit. The "Deposit" is Ten Thousand Dollars ($10,000) and shall be placed
into Escrow on the opening of Escrow in accordance with Section 3.1, below.
1.7 Due Diligence Period. The "Due Diligence Period" is the period commencing
on the Effective Date and ending on the twenty-seventh (27th) day after the opening of escrow,
including the date of the opening of escrow (or, if such day is not a regular business day, then on the
l
regular business day which most closely precedes such 27th day), during which Buyer shall complete its
due diligence as described in Sections 5 and 8, below.
1.8 Effective Date. The "Effective Date" is the date set forth below the signature(s)
of the party which is the last to sign this Agreement.
1.9 Escrow Holder and Title Company. The "Escrow Holder" and the "Title
Company" are:
First American Title Insurance Company
555 Marshall Street
Redwood City, CA 94063
Telephone: (415) 367-9050
Facsimile: (415) 364-3015
Attention:
1.10 Exhibits. The term "Exhibits" means the following, each of which is attached
hereto and incorporated herein by this reference:
Exhibit A -- Description of Real Property
Exhibit B -- Grant Deed
Exhibit C -- Certificate of Acceptance
Exhibit D -- Non-Foreign Certificate
1.11 Improvements. The term "Improvements" means all buildings, structures, and
fixtures now owned by Seller to the extent that they are located on the real property.
1.12 Notices. The term "Notices" means all notices or other communications
required or permitted hereunder, which Notices shall be sent as follows to:
Seller: Dante ¥olonte, Successor Trustee of the Volonte Family Trust
1234 Bernal Avenue
Burlingame, CA 94010
with a copy to: Neal Cabrinha
Mallen and Cabrinha
12901 Saratoga Ave. Suite 2
Saratoga, CA 95070
Telephone: (408) 996-3242
Facsimile: (408) 996-1421
Buyer: The Redevelopment Agency of the City of South San Francisco
City Hall, 400 Grand Avenue
South San Francisco, CA 94083
Attention: Michael Wilson, Executive Director
Telephone: (415) 877-8500
Facsimile: (415) 872-3269
with a copy to: Meyers, Nave, Riback, Silver & Wilson 777 Davis Street, Suite 300
San Leandro, CA 94577
Attention: Steven T. Mattas, Agency Counsel
Telephone: (5 I0) 351-4300
Facsimile: ($1 O) 351-4481
1.13 Permitted Exceptions. The term "Permitted Exceptions" shall have the
meaning given thereto in Section $. 1.1 below.
1.14. Purchase Price. The "Purchase Price" for the Property is Three Hundred Twenty
Five Thousand Dollars ($325,000.00).
1.15. Real Property. The term "Real Property" means that certain improved real
property located in the City of South San Francisco, County of San Mateo, State of California, and
more commonly known as 616 Linden Avenue, South San Francisco (Assessor's Parcel Number No. O12-
174-300), and more particularly described in Exhibit A, attached hereto.
2. Agreement to Sell and Purchase. Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, upon the terms and for the consideration set forth in this agreement, all that
certain Real Property including all Improvements thereon (hereinafter called "Property") situated in the
City of South San Francisco, County of San Mateo, State of California, and legally described as follows:
616 LINDEN AVENUE, SOUTH SAN FRANCISCO, CALIFORNIA
APN NO.O 12-174-300
3. Purchase Price. The total Purchase Price, payable in cash through escrow, shall be the
sum of three hundred twenty five thousand dollars ($325,000.00).
3.1 Deposit. Within three (3) business days after execution of this Agreement by
both parties, Buyer shall deposit with Escrow Holder by cashier's check or wire transfer cash in an
amount equal to the Deposit. Escrow Holder shall place the funds received from Buyer in an
interest-bearing account. All interest earned on the Deposit shall be for the benefit of Buyer. Except as
provided otherwise in this Agreement, the Deposit shall become non-refundable on the first day
following the expiration of the Due Diligence Period, unless Buyer terminates this Agreement by written
notice to Seller and Escrow Holder as provided in this Agreement on or before the expiration of the Due
Diligence Period.
3.2 Payment at Closing. Not less than two (2) days prior to Close of Escrow (or, if
such day is not a regular business day, on the next following regular business day), Buyer shall deposit
with Escrow Holder by immediately available federal wire transfer or cashier's check an additional
amount equal to the difference between (a) the Purchase Price and (b) the Deposit, plus or minus the
closing adjustments and prorations described in Section 9.1.
4. Conveyance of Title. Seller agrees to convey by Grant Deed to Buyer marketable fee
simple title to the Property free and dear of all recorded and unrecorded liens, encumbrances,
assessments, easements, leases, and taxes EXCEPT the permitted exceptions as defined in Section 5.1.1
- - herein.
5. Due Diligence Conditions.
5.1 Conditions to Buyer's Obligation, Buyer's obligation to proceed with the
purchase of the Property shall be expressly contingent upon Buyer's inspection, examination, survey,
review and subsequent approval of the due diligence conditions ("Due Diligence Conditions") described
below in Sections 5.1.1, 5.1.2, and 5.1.3, inclusive, within the Due Diligence Period.
5.1.1. Title. The term "Permitted Exceptions" shall mean the following
exceptions to title affecting the Property: (i) the standard coverage exceptions, and the
exclusions, conditions and stipulations which are a part of the title policy form; (ii) current
property taxes not yet delinquent; and (iii) any other exceptions hereafter approved in writing
by Buyer. Buyer may review the condition of title of the Property as hereinafter provided. At
the sole expense of Buyer, Buyer may elect to have prepared a CLTA preliminary title report
("Report") for the property, and dear and readable copies of all documents supporting
exceptions set forth in the Report. Notwithstanding any contrary provisions contained in this
Agreement, Buyer may, at any time prior to the expiration of the Due Diligence Period, give
written notice to Seller of Buyer's desire to cause to be removed certain exceptions to title, other
than the Permitted Exceptions, which are identified by Buyer in such notice. If Buyer gives
Seller the notice described in the preceding sentence, Seller shall, at Seller's sole expense,
promptly remove from title any such exceptions identified by Buyer in such notice prior to
expiration of the Due Diligence Period, and shall deliver to Buyer on or before the expiration of
the third business day before the date on which the Due Diligence Period shall expire, an
updated preliminary report reflecting the state of title after Seller's removal of the exceptions
identified in Buyer's notice.
5.1.2 Feasibility Study. Buyer may review the feasibility of the Property for
Buyer's intended use, including, without limitation, the physical condition of the Property.
Buyer may consult or retain civil engineers, contractors, soils and geologic engineers, architects
and specialists in the investigation and disposal of toxic or hazardous materials, and other
consultants to determine if the Property is suitable for Buyer's intended use. Notwithstanding
any contrary provisions contained in this Agreement, Buyer may elect to terminate this
Agreement based on information contained in the feasibility studies prepared by or on behalf of
Buyer, or based on information contained in studies or reports provided by the Seller.
Notwithstanding this reserved right to terminate the Agreement based on information contained
in the feasibility studies or reports and studies provided by the Seller, it is the intent of the
parties to this Agreement that the Buyer will acquire the Real Property with an expectation that
it is the Buyer's responsibility to complete the remediation efforts that have commenced
consistent with the remediation plan approved by the San Mateo County Environmental Health
Department.
5.1.3. Other matters. Buyer may review any other matters Buyer desires to
investigate, including, without limitation, any and all studies or reports provided by Seller
pursuant to Section 8.1, any lease documents or rental agreements, the compliance by the
Property with all laws applicable now and in the future, and any existing obligations relating to
the Property. Notwithstanding any contrary provisions contained in this Agreement, Buyer may
elect to terminate this Agreement based on information contained in the feasibility studies
prepared by or on behalf of Buyer, or based on information contained in studies or reports
provided by the Seller. Notwithstanding this reserved right to terminate the Agreement based
on information contained in the feasibility studies or reports and studies provided by the Seller,
4
it is the intent of the parties to this Agreement that the Buyer will acquire the Real Property
with an expectation that it is the Buyer's responsibility to complete the remediation efforts that
have commenced consistent with the remediation plan approved by the San Mateo County
Environmental Health Department.
5.2 Termination During Due Diligence Period. Buyer shall have until the
expiration of the Due Diligence Period in which to terminate this Agreement on account of the failure of
any of the Due Diligence Conditions. Buyer may terminate this Agreement by written notice to Seller
within the Due Diligence Period if Buyer reasonably determines that one (1) or more of the Due
Diligence Conditions is not fulfilled. If Buyer gives such notice, then (a) this Agreement, and all of the
obligations, rights, and liabilities of the parties to each other hereunder, shall terminate and be of no
further effect; (b) Buyer shall immediately return to Seller any studies provided by Seller to Buyer, and
(c) Seller shall immediately direct Escrow Holder to return the Deposit, including all interest thereon, to
Buyer. Any Due Diligence Condition with respect to which Buyer does not give notice to Seller, within
the Due Diligence Period, that Buyer has determined that such condition is not fulfilled, shall be
deemed approved by Buyer.
5.3 Confidentiality. All information obtained by Buyer concerning the Property
(including, without limitation, the physical condition of the Property, information from any civil
engineers, contractors, soils and geologic engineers, architects and specialists in the investigation and
disposal of toxic or hazardous materials, and the Property's compliance with all laws and existing
obligations relating to the Property) shall remain confidential and shall not be disclosed by Buyer
without the written consent of Seller except (1) to Buyer's directors, officers, officials, employees, legal
counsel, accountants, engineers, architects, financial advisors and similar professionals and consultants
to the extent Buyer deems it necessary or appropriate in connection with the transaction contemplated
hereunder (and Buyer shall inform each of the foregoing parties of Buyer's obligations under this
paragraph and shall secure the agreement of such parties to be bound by the terms hereof) or (2) as
otherwise required by law or regulation.
5.4 Documents. Within three business days after execution of this Agreement by
both parties, Seller will provide to Buyer a copy of all documents, reports and writing of any kind
concerning the Property, including the physical condition of the Property, and reports and/or
information from any civil engineers, contractors, soils and geologic engineers, architects and specialists
in the investigation and disposal of toxic or hazardous materials, and the Property's compliance with all
laws and existing obligations relating to the Property.
6. Closing Conditions.
6.1 Conditions to Purchase. Buyer's obligation to proceed with the purchase of the
Property is subject to the satisfaction on or before the Close of Escrow of the closing conditions
("Buyer's Closing Conditions") described below:
6.1.1 Title Policy. Title Company shall be ready, willing and able to issue,
upon the Close of Escrow and payment of Title Company's regularly scheduled premiums, Title
Company's CLTA owner's policy of title insurance (with any endorsements requested by Buyer)
showing title to the Property vested of record in Buyer in fee simple, subject only to the lien of
real property taxes and assessments for the current fiscal year not yet delinquent, the standard
printed exceptions and exclusions, and the Permitted Exceptions ("Title Policy").
5
; - 6.1.2 Seller's Fulfillment of Obligations. Seller shall have performed each and
: all of the covenants, conditions, agreements and promises to be performed by Seller under this
! Agreement, and each representation, warranty and covenant contained in Section 13 below,
shall be true, accurate, complete and not breached as of the Effective Date and as of the Close
of Escrow.
6.1.3 Change in Property. There shall not occur after the Effective Date any
material change in the Property from its condition as of the Effective Date.
6.1.4 Insolvency. Seller shall not either voluntarily or involuntarily become
subject to a bankruptcy proceeding, or make a general assignment for the benefit of Seller's
creditors or become insolvent.
6.2 Conditions to Sell. Seller's obligation to proceed with the sale of the Property is
subject to the satisfaction on or before the Close of Escrow of the dosing conditions ("Seller's Closing
Conditions") described below:
6.2. ! Buyer's Fulfillment of Obligations. Buyer shall have performed each
and all of the covenants, conditions, agreements and promises to be performed by Buyer under
this Agreement.
6.2.2 Insolvency. Buyer shall not either voluntarily or involuntarily become
subject to a bankruptcy proceeding, or make a general assignment for the benefit of Buyer's
creditors or become insolvent.
6.3 Termination By Buyer Prior to Close of Escrow. If on or before the Close of
Escrow any of the Buyer's Closing Conditions has not been fulfilled, Buyer may, at Buyer's option, do
any one of the following:
6.3.1 Proceed with Close of Escrow. Close the transaction in accordance
with this Agreement; or
6.3.2 Terminate Agreement. Terminate this Agreement in writing. If Buyer
terminates this Agreement pursuant to this Section 6.3.2, Seller shall thereupon immediately
cause the Deposit to be returned to Buyer, together with any interest accrued thereon.
Following any such termination, Buyer shall have no further obligations or liabilities under this
Agreement.
6.4 Termination By Seller Prior to Close of Escrow. If on or before the Close of
Escrow any of the Seller's Closing Conditions have not been fulfilled, Seller may, at Seller's option, do
any one of the following:
6.4.1 Proceed with Close of Escrow. Close the transaction in accordance
with this Agreement; or
6.4.2 Terminate Agreement. Terminate this Agreement in writing. Following
any such termination, Seller shall have no further obligations or liabilities under this Agreement.
7. Title Insurance Policy. Escrow Agent shall, following recording of deed to Buyer,
provide Buyer with CLTA Standard Coverage Policy of Title Insurance in the amount of $325,000.00,
issued by First American Title Insurance Company, showing the title to the property vested in Buyer,
subject only to the exceptions set forth in Paragraph 5.1.1 and the printed exceptions and stipulations in
said policy. Buyer agrees to pay the premium charged therefore.
8. Inspections of Property and Studies Available to Seller.
8.1 Studies on Property. Upon the Effective Date, and continuing throughout the
Due Diligence Period, Seller agrees to immediately make available to Buyer any and all studies, reports,
or investigations concerning the Property in Seller's possession, including without limitation concerning
its physical condition, habitability, and the presence or absence of pollutants, contaminants, or
hazardous substances of any type, as well as to disclose to Buyer all information in Seller's possession or
awareness concerning the same.
8.2 Right of Entry. During the Due Diligence Period, Buyer shall have the right to
enter and inspect the Real Property (a "Buyer's Inspection"), at Buyer's expense and upon reasonable
notice to Seller.
8.3 Physical Testing. Buyer shall obtain Seller's advance consent to any proposed
physical testing of the Real Property by Buyer or Buyer's representatives, which consent shall not be
unreasonably withheld or delayed. Buyer shall repair, restore, and return the Real Property to its
original condition after the undertaking of any such physical testing, at Buyer's own cost and expense.
Buyer shall schedule any such tests during normal business hours unless approved otherwise by Seller.
8.4 Inspection Indemnity. 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) except to the extent that such liability, cost, damage,
and expense arises as a result of the negligence or other wrongful conduct of Seller, or either of them, or
their agents or representatives.
9. Escrow.
9.1. Buyer agrees to open an escrow in accordance with this Agreement at First
American Title Guaranty Company, 555 Marshall Street, Redwood City, 94063-1619. Buyer and Seller
agree that the parties shall each pay fifty percent (50%) of the usual fees, charges, and costs which arise
in this escrow. Seller agrees to pay all Seller's usual fees, charges, and costs which arise in this escrow.
This Agreement constitutes the joint escrow instructions of Buyer and Seller, and
Escrow Agent to whom these instructions are delivered is hereby empowered to act pursuant to this
Agreement. The parties hereto agree to do all acts necessary to dose this escrow in the shortest possible
time.
9.2. Prior to the end of the Due Diligence Period, Seller shall execute, have
notarized, and deliver the Grant Deed to Escrow Agent.
9.3. Prior to the end of the Due Diligence Period, Buyer will execute, have notarized
and deliver the Certificate of Acceptance attached hereto as Exhibit E, to the Escrow Agent.
7
9.4 Buyer agrees to deposit the Purchase Price upon demand of Escrow Agent
pursuant to Section 3.2.
9.5 Buyer and Seller agree to deposit with Escrow Agent any additional instruments
as may be necessary to complete this transaction.
9.6 All funds received in this escrow shall be deposited with other escrow funds in a
general escrow account(s) and may be transferred to any other such escrow trust account in any State or
National Bank doing business in the State of California. All disbursements shall be made by check from
such account.
9.7 Escrow Agent is authorized and is instructed to comply with the following tax
adjustment procedure:
Pay and charge Seller for any unpaid delinquent taxes and/or penalties
and interest thereon, and for any delinquent or non-delinquent assessments or bonds against the
property;
B. In the event this escrow doses between July 1 and November 1, and
current tax information is not available from title insurer, Escrow Agent is instructed to withhold from
Seller's proceeds an amount equal to 120% of the prorated amount due based upon the previous fiscal
year's second half tax bill. At such time that the tax information is available, Escrow Agent shall make a
check payable to the County Tax Collector for Seller's prorated portion of taxes and forward same to the
Buyer and shall refund any difference to the Seller. In the event the amount withheld is not sufficient
to pay Seller's prorated portion of taxes due, the Seller herein agrees to immediately pay the difference.
In the event said tax information is available, Seller's taxes shall be prorated in accordance with
Paragraph "C" below.
C. From the date that tax information is available, as per Paragraph "B", up
to and including June 30th, Seller's current taxes, if unpaid, shall be prorated to date of close of escrow
on the basis of a 365 day year in accordance with Tax Collector's proration requirements, together with
penalties and interest, if said current taxes are unpaid after December 10 and/or April 10. At close of
escrow, check payable to the County Tax Collector for Seller's pro rata portion of taxes shall be
forwarded to Buyer with closing statement;
D. Any taxes which have been paid by Seller, prior to opening of this
escrow, shall not be prorated between Buyer and Seller, but Seller shall have the sole right, after close of
escrow, to apply to the County Tax Collector of said county for refund. This refund would apply to the
period after Buyer's acquisition, pursuant to Revenue and Taxation Code Section 5096.7.
9.8 Escrow Agent is authorized to, and shall:
A. Pay and charge Seller for any amount necessary to place title in the
condition necessary to satisfy Section 4 of this Agreement;
B. Pay and charge Buyer and Seller for any escrow fees, charges, and costs
payable under Section 9.1 of this Agreement;
8
C. Disburse funds and deliver deed when conditions of this escrow have
been fulfilled by Buyer and Seller.
9.9 All time limits within which any matter herein specified is to be performed may
be extended by mutual agreement of the parties hereto. Any amendment of, or supplement to, any
instructions must be in writing.
9.10 TIME IS OF THE ESSENCE IN THESE INSTRUCTIONS AND ESCROW IS
TO CLOSE AS SOON AS POSSIBLE. If this escrow is not in condition to dose within 30 days from
date of these instructions, any party who then shall have fully complied with his instructions may, in
writing, demand the return of his money or property; but if none have complied no demand for return
thereof shall be recognized until five (5) days after Escrow Agent shall have mailed copies of such
demand to all other parties at the respective addresses shown in these escrow instructions, and if any
objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and
documents until instructed by a court of competent jurisdiction or mutual instructions. If no demands
are made, proceed with closing of this escrow as soon as possible.
I0. Rental and Occupancy by Seller. Seller agrees to execute a complete, current, and
correct statement of rentals and deliver same to Buyer within three (3) business days of Seller's
execution of this Agreement with copies of any written leases or rental agreements attached. Ail rents
will be prorated as of the dose of escrow on the basis of a 30-day month consistent with that Statement,
subject to approval of Buyer. Seller hereby agrees not to rent any units on the premises which are now
vacant, or which may be vacated by present occupants prior to dose of escrow.
Seller hereby warrants that the rental statement referred to shall include the terms of ail rental
agreements, tenancies, and leases (written, unwritten, recorded, or unrecorded) and Seller agrees to hold
Buyer harmless from all liability from any such leases or agreements. Seller also warrants that there are
no oral or written leases on all or any portion of property exceeding a period of one month, and Seller
further agrees to hold Buyer harmless and reimburse Buyer for any and all of its losses and expenses
occasioned by reason of any lease of said property held by any tenant of Seller for a period exceeding
one month.
11. Closing Statement. Seller instructs Escrow Agent to release a copy of Seller's statement
to Buyer c/o Marty Van Duyn, Director of Economic and Community Development, 400 Grand
Avenue, South San Francisco, California 94577; the purpose being to ascertain if any reimbursements
are due Seller.
12. Loss or Damage to Improvements. Loss or damage to the Real Property or any
Improvements thereon, by fire or other casualty, occurring prior to the recordation of the Deed shall be
at the risk of Seller. In the event that loss or damage to the Real Property or any Improvements
thereon, by fire or other casualty, occurs prior to the recordation of the Deed, Buyer may elect to
require that Seller pay to Buyer the proceeds of any insurance which may become payable to Seller by
reason thereof, or to permit such proceeds to be used for the restoration of the damage done, or to
reduce the total price by an amount equal to the diminution in value of said property by reason of such
loss or damage or the amount of insurance payable to Seller, whichever is greater.
13. Warranties. Representations. and Covenants of Seller. Seller hereby warrants,
represents, and/or covenants to Buyer that:
9
A. With the exception of the Action in Eminent Domain (#339271) instituted by
the Redevelopment Agency of South San Francisco and the Complaint for
Specific Performance (#398370) instituted by Jamil Khoury and Hanneh
Khoury, both of which will be dismissed pursuant to a settlement agreement
dated , 1997, there are no actions, suits, material claims, legal
proceedings, or any other proceedings affecting the property or any portion
thereof, at law, or in equity before any court or governmental agency, domestic
or foreign.
B. Until the dosing, Seller shall maintain the vacant portions of the Property in its
current condition and state of repair and maintenance, and shall perform all of
its obligations under any service contracts or other contracts affecting the
property.
C. Until the dosing, Seller shall not do anything which would impair Seller's title
to any of the property.
D. Seller has disclosed to Buyer all material information in Seller's possession
concerning the Property.
E. Seller has the full power and authority to execute and deliver and fully perform
their obligations under the Agreement.
F. Neither the execution of this Agreement nor the performance of the obligations
herein will conflict with, or breach any of the provisions of any bond, note,
evidence of indebtedness, contract, lease, or other agreement or instrument to
which Seller's property may be bound.
G. Until the dosing, Seller shall, upon learning of any fact or condition which
would cause any of the warranties and representations of this Warranties,
Representations, and Covenants of Seller Section not to be true as of dosing,
immediately give written notice of such fact or condition to Buyer.
14. Responsibility for Remediation of Hazardous Materials.
14.1 Seller has conducted a Phase I and Phase II environmental assessment for the
purpose of determining the nature and extent of surface or sub-surface Hazardous Materials on the
subject property. Seller has provided copies of said assessments to Buyer. With respect to the removal
and/or remediation of Hazardous Materials, the parties agree as follows:
A. Seller's Responsibility: Seller agrees to remove any and all barrels, containers
and/or drums containing Hazardous Materials, and continue remedial efforts
consistent with the remediation plan prepared by ASE Applied Science &
Engineering, Inc. and approved by the San Mateo County Health Department
until dose of escrow;
l0
B. Buver's Responsibility: Buyer agrees to (1) complete remediation efforts
consistent with the remediation plan prepared by ASE Applied Science and
Engineering, Inc., and approved by the San Mateo County Health Department,
and (2) hold Seller harmless from any and all claims, costs and damages arising
from the completion of remediation efforts of any subsurface hazardous
materials identified in the Phase II environmental assessment.
14.2 Hazardous Materials. As used herein, the term "Hazardous Materials" or
"Hazardous Substances" shall mean: (a) any substances defined, regulated or listed (directly or by
reference) as "hazardous substances," "hazardous materials," "hazardous wastes," "toxic waste,"
"pollutant" or "toxic substances" or similarly identified as hazardous to human health or the
environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. §9601 et seq. ("CERCLA"); (ii) the Hazardous Materials Transportation
Act, 49 U.S.C. §1802 et seq.; (iii) the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq.;
(iv) the Clean Water Act, 33 U.S.C. §1251 et seq.; (v) California Health and Safety Code §§25225-
25117, 25249.5, 25249.8, 25281, and 25316; and (vi) the Clean Air Act, 42 U.S.C. §7901 et seq.; and
(vii) California Water Code § 13050; (b) any amendments to such enumerated statutes or acts; and (c)
any other hazardous or toxic substance, material chemical, waste or pollutant identified as hazardous or
toxic or regulated under any other applicable federal, state or local environmental laws, including
without limitation, friable asbestos, polychlorinated biphenyls ("PCBs"), petroleum, natural gas and
synthetic fuel products and by-products.
14.3 Indemnification.
14.3.1 The term "indemnitor" shall mean the Redevelopment Agency of South
San Francisco, its assigns and successors in interest.
14.3.2 The term "Indemnitee" shall mean Dante Volonte and the Volonte
Family Trust.
14.3.3 As used herein, the term "Liability~' shall mean and include any one or
more of the following, based on or arising out of the release or presence of Hazardous Materials in or on
the Real Property; any orders, actions, injunctions or expenses (including, without limit, any expenses
associated with the response, removal or remediation of such Hazardous Materials).
14.3.4 From and after Close of Escrow, Indemnitor shall indemnify, defend
(with counsel selected by Indemnitor) and hold harmless Indemnitee, from and against all Liability.
Indemnitor agrees that upon receipt of any notices of the presence of, or a release or potential release of
Hazardous Materials on or under the Property for which it is liable under the provisions of this
Agreement, Indemnitor shall timely initiate and diligently pursue and complete all appropriate response,
remediation and removal actions for the release, within the deadlines specified by applicable laws and
regulations.
So long as Indemnitor is not in material breach hereof, and is discharging its defense and indemnity
obligations in a reasonable and responsible manner for a Liability, and it has accepted and is discharging
responsibility hereunder for such liability without any reservation of rights, Indemnitee hereby assigns
to Indemnitor all of its present and future rights to recover, or receive contribution, from any and all
'-'-- potentially responsible third parties for those costs, expenses and fees incurred by Indemnitor pursuant
to this Indemnity. Buyer shall also assign its rights to Indemnitor to bring an action against or
I I
otherwise cause any or all of such potentially responsible parties to take responsive actions, and to
remove and remediate the Hazardous Materials. Each party agrees to cooperate fully with the other in
the preservation and prosecution of all such claims and private enforcement actions.
So long as Indemnitor is not in material breach hereof, and is discharging its defense and indemnity
obligations in a reasonable and responsible manner for a Liability, and it has accepted responsibility
hereunder for such liability without any reservation of rights, Indemnitor shall have control over the
defense of such liability without any reservation of rights, and over all negotiations relating to the
settlement thereof. Indemnitor's exercise of control over settlements shall not relieve Indemnitor of its
indemnity and defense obligations to Buyer.
15. Release of Interest in Fixtures and Equipment. Seller agrees to execute a Quitclaim
Deed in favor of the Buyer qultdaiming any and all interest in and to any Improvements located or
claimed by Seller's tenants, located on the subject property.
16. Remedies. If the transaction contemplated by this Agreement is not consummated due
to a default by Seller, Buyer shall be entitled to either (1) the return of the Deposit or (2) enforce this
Agreement though a specific performance action. If the transaction contemplated by this Agreement is
not consummated due to a default by Buyer, Seller shall be entitled to retain the Deposit as liquidated
damages and as Seller's sole remedy.
BUYEPc
SELLEPc
17. Brokerage Commission. Each party to this Agreement warrants to the other that no
person or entity can properly claim a right to a real estate commission, finder's fee, or other real estate
brokerage-type commission (collectively, "Real Estate Compensation") based upon the acts of that party
with respect to the transactions contemplated with respect to this Agreement. Each party hereby agrees
to indemnify, protect, hold harmless, and defend the other (including without limitation the other's
employees, officials, or representatives) (by counsel reasonably acceptable to the party seeking
indemnification) from and against any and all damages, liabilities, loss, costs and expense, induding but
without limitation reasonable attorney's fees and court costs, resulting from any claims for Real Estate
Compensation by any person or entity based upon such acts.
18. Eminent Domain Dismissal. Seller and Buyer acknowledge that this transaction is a
negotiated settlement in lieu of condemnation, and Seller hereby agrees and consents to the dismissal or
abandonment of any eminent domain action in the Superior Court of the State of California in and for
the County of San Mateo, wherein the herein described property is included and also waive any and all
claims to any money on deposit in said action and further waive all attorney's fees, costs, disbursements,
and expenses incurred in connection therewith.
19. Contingency. It is understood and agreed between the parties hereto that the
completion of this transaction, and the escrow created hereby, is contingent upon the specific
acceptance and approval of the Buyer herein. The execution of these documents and the delivery of
same to Escrow Agent constitutes said acceptance and approval.
20. Successors and Assigns. The terms and conditions, covenants, and agreements set forth
herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties
hereto.
T 1 I I
21. Entire Agreement. This Agreement contains the entire agreement between both parties,
neither party relies upon any warranty or representation not contained in this Agreement.
22. Counterparts. This agreement may be executed in counterparts, each of which so
executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
set forth hereinabove.
SELLER
DATE: , 1997
Dante Volonte, Successor Trustee of the Volonte
Family Trust
APPROVED AS TO FORM:
Attorney for Seller
BUYER
DATE: , 1997
Executive Director
Redevelopment Agency of the
City of South San Francisco
ATTEST:
Clerk
APPROVED AS TO FORM:
Agency Counsel
...-... C: \MOOEM\616L I ND. AGR
13
EXHIBIT A
Real Property Description
[To be attached]
EXHIBIT B
RECORDING REQUESTED BY, AND FOR RECORDER'S USE ONLY:
WHEN RECORDED MAIL TO:
City of South San Frandsco
Office of the City Clerk
400 Grand Avenue No documentary Transfer Tax Due
South San Frandsco, CA 94080
City Attorney
GRANT DEED
For GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
acknowledged, Dante Volonte, Successor Trustee of the Volonte Family Trust ("transferor") grants,
transfers and assigns to The Redevelopment Agency of the City of South San Francisco, a public agency,
all that certain real property located in the City of South San Francisco, County of San Mateo, State of
California, and which is more particularly described in Schedule 1, attached hereto and incorporated by
reference.
IN WITNESS WHEREOF, this Grant Deed has been executed this day of
, 199 .
Dante Volonte, Successor Trustee of the Volonte Family Trust
(Print Name)
Dated: , 199
15
"- EXHIBIT C
i CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed dated
from Dante Volonte, Successor Trustee of the Volonte Family Trust to the
Redevelopment Agency of the City of South San Francisco, a political corporation and/or governmental
agency, is hereby accepted by the undersigned officer or agent on behalf of the Redevelopment Agency
of the City of South San Francisco pursuant to authority conferred by Resolution No. __ of the
Redevelopment Agency of the City of South San Francisco adopted on , 199__, and
the grantee consents to recordation thereof by its duly authorized officer.
Dated: By:
NOTARIAL ACICNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO )
On before me, , NOTARY PUBLIC,
personally appeared Michael A. Wilson, personally known to me (or 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.
WITNESS my hand and official seal.
Signature
[Seal]
NOTARY PUBLIC, STATE OF CALIFORNIA
My Commission Expires:
16