HomeMy WebLinkAboutReso RDA 17-1999 RESOLUTION NO. 17-99
REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION APPROVING A PURCHASE AND SALE
AGREEMENT FOR THE ACQUISITION OF PROPERTY LOCATED
AT 905 LINDEN AVENUE AND AUTHORIZING THE EXECUTIVE
DIRECTOR TO EXECUTE SAME
WHEREAS, the City Council of the City of South San Francisco adopted the
Redevelopment Plan for the Downtown/Central Project Area on July 12, 1989, which Plan
authorizes the Redevelopment Agency to acquire property in the Project Area for redevelopment
purposes; and
WHERE, at its meeting of May 5, 1999, the Redevelopment Agency authorized
Agency Counsel to make an offer to acquire the property located at 905 Linden Avenue
("Property"), based on appraised value, which offer was made and accepted; and
WHERE, the Property has been operated as a gas station, including several
underground storage tanks, which use resulted in some contamination of soil and groundwater;
and
WHERE, the property owner has successfully remediated the contaminated soil to the
satisfaction of the San Mateo County Environmental Health Division, but some residual
contamination remains in the groundwater, which will not prevent the Agency's redevelopment
of the Property; and
WHERE, the Agency will, for its own convenience, implement the groundwater
monitoring and remediation activities needed to receive a Letter of Closure from the County for
the Property, with the Agency's costs to be reimbursed from the California State Underground
Storage Tank Cleanup Fund ("Fund"); and
WHERE, the Seller of the Property has required certain revisions to the Purchase and
Sale Agreement authorized by Resolution No. 16-99 on September 22, 1999 to clarify that
Seller's obligation to indemnify the Agency from third party claims resulting from pre-existing
contamination is limited to reimbursements available from end Fund.
NOW, THEREFORE, BE IT RESOLVED that the Redevelopment Agency of the City of
South San Francisco hereby approves the Purchase and Sale Agreement ("Agreement") between
the Redevelopment Agency of the City of South San Francisco and Jose A. Montes and Maria G.
Montes, Trustees of the Montes Family Revocable Trust (Seller"), attached hereto as Exhibit A,
with a purchase price not to exceed $477,500.00.
BE IT FURTHER RESOLVED that this Resolution supersedes Resolution No 16-99,
adopted on September 22, 1999.
BE IT FURTHER RESOLVED that the Executive Director is authorized to execute the
Agreement on behalf of the Agency and record the Certificate of Acceptance.
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 regul ar' meeting held
on the 27 day of October' , 1999 by the following vote:
ASrES: Boardmember Joseph A. Fernekes, Eugene R. Mullin and John R. Penna
Vice Chair Matsumoto, and Chairman ,lam~'q L. ~latzman
NOES: None.
ABSTAIN: None.
ABSENT: None.
ATTEST: t 6L
Clerk
F:\WPDWINRSW~405\001LRedevelopment~LINDEN~ndenres.doc
PURCHASE AND SALE AGREEMENT
Relating to
905 Linden Ave., South San Francisco, California
in the
Downtown/Central Redevelopment Proiect Area
September 1999
TABLE OF CONTENTS
1
RECITALS ...................................................................................................................... 1
Section 1. Definitions .................................................................................................... 1
Section 2. Purchase and Sale ......................................................................................... 3
Section 3. Purchase Price .............................................................................................. 3
Section 4. Escrow ........................................................................................................... 4
Section 5. Seller[is Disclosure Obligation ..................................................................... 4
Section 6. Conditions to Purchaser[Is Performance ...................................................... 4
Section 7. Conditions to Sellerrls Performance ............................................................. 5
Section 8. Title .............................................................................................................. 5
Section 9. Close of Escrow ............................................................................................ 6
Section 10. Damage and Destruction ........................................................................... 9
Section 11. Liquidated Damages ................................................................................... 9
Section 12. Groundwater Monitoring and Site Closure ............................................. 10
Section 13. Seller0s Indemnification and Hold Harmless .......................................... 10
Section 14. Seller[is Representations, Warranties, and Covenants ............................ 11
Section 15. Relocation, Goodwill and Other Compensation ..................................... 12
Section 16. Authority of Parties .................................................................................. 12
Section 17. Brokers ...................................................................................................... 13
Section 18. Attorney Fees ........................................................................................... 13
Section 19. Notices ...................................................................................................... 13
Section 20. Entire Agreement ..................................................................................... 14
Section 21. Severability ............................................................................................... 14
Section 22. Waivers ................................................................................................ 1514
Section 23. Construction ............................................................................................. 15
Section 24. Merger ...................................................................................................... 15
Section 25. Counterparts ............................................................................................. 15
Section 26. Time of the Essence ................................................................................ ,15
Section 27. Successors ................................................................................................. 16
Section 28. Governing Law ......................................................................................... 16
Exhibit A - Legal Description
Exhibit B - Co-Payee Agreement
905 Linden Ave., South San Francisco, Ca.
Purchase &. Sale Agreement, September 1999
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement and Escrow Instructions ([lAgreementD) is
entered as of ,1999 between JOSE A. MONTES AND MARIA G.
MONTES, as Trustees of THE MONTES FAMILY REVOCABLE TRUST of
November 11, 1996 ([1SellerO) and THE REDEVELOPMENT AGENCY OF THE
CITY OF SOUTH SAN FRANCISCO, a public body, corporate and politic
(OPurchaserO).
RECITALS
WHEREAS, the City Council of the City of South San Francisco adopted the
Redevelopment Plan for the Downtown/Central Proiect Area on July 12, 1989, which
Plan authorizes Purchaser to acquire property in the Proiect Area for redevelopment
purposes; and
WHEREAS, Seller is the owner of certain real property in the Proiect Area
([]Real Property[l) located at 905 Linden Ave., South San Francisco, California, more
particularly described in the attached Exhibit A, which is incorporated by reference;
and
WHEREAS, Purchaser desires to purchase the Property and Seller desires to
sell the Property on the terms and conditions in this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are acknowledged, the parties agree as follows:
Section 1. Definitions.
As used in this Agreement the following terms shall have the following
definitions:
174pproved Exceptionsl7is defined in Section 8(b).
lTCtose of Escro}vl7is defined in Section 9(d).
17Certificate of Acceptancel7is defined in Section 9(c).
~Closing Datel7is defined in Section 9(d).
lTDeed~is defined in Section 9(b).
~Deposit#is defined in Section 3(b).
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Purchase & Sale Agreement, Scptcmbcr October 1999
~Disapproved Exception#is defined in Section 8(c).
i-/Environmental La~vsl7means all federal, state, local, or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, or requirements of any
government authority regulating, relating to, or imposing liability or standards of
conduct concerning any Hazardous Substance (as defined subsequently in this
Agreement), or pertaining to occupational health or industrial hygiene (and only to
the extent that the occupational health or industrial hygiene laws, ordinances, or
regulations relate to Hazardous Substances on, under, or about the Property),
occupational or environmental conditions on, under, or about the Property, as now in
effect, including without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) and the Superfund
Amendments and Reauthorization Act of 1986 (SARA) [42 USCA Dl 9601 et seq.];
the Resource Conservation and Recovery Act of 1976 (RCRA) and the Solid Waste
Disposal Act [42 USCA ID 6901 et seq.]; the Clean Water Act, also known as the
Federal Water Pollution Control Act (FWPCA) [33 USCA Dii 1251 et seq.]; the
Toxic Substances Control Act (TSCA) [15 USCA DD 2601 et seq.]; the Hazardous
Materials Transportation Act (HMTA) [49 USCA Ii 1801 et seq.]; the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) [7 USCA Dii 136 et seq.]; the
Clean Air Act (CAA) [42 USCA DD 7401 et seq.]; the Safe Drinking Water Act
(SDWA) [42 USCA iii 300f et seq.]; the Surface Mining Control and Reclamation
Act of 1977 (SMCRA) [30 USCA DD 1201 et seq.]; the Emergency Planning and
Community Right-to-Know Act of 1986 (EPCRA or EPCRTICA) [42 USCA DID 11001
et seq.]; the Occupational Safety and Health Act of 1970 (OSHA) [29 USCA Dii 655,
657]; the California laws regarding the underground storage of hazardous substances
[H & S C Bi 25280 et seq.]; the Hazardous Substance Account Act [H & S C
25300 et seq.]; the California laws regarding hazardous waste control [H & S C DID
25100 et seq.]; the Safe Drinking Water and Toxic Enforcement Act of 1986 [H & S
C ill 25249.5 et seq.]; the Porter-Cologne Water Quality Control Act [Wat C
13000 et seq.], and any amendments of or regulations promulgated under the
statutes cited above and any other federal, state, or local law, statute, ordinance or
regulation now in effect that pertains to occupational health or industrial hygiene,
and only to the extent that the occupational health or industrial hygiene laws,
ordinances, or regulations relate to Hazardous Substances on, under, or about the
Property, or the regulation or protection of the environment, including ambient air,
soil, soil vapor, groundwater, surface water, or land use.
/-/E. scro~v#is defined in Section 4.
lTEscro~vAgent#is defined in Section 4.
l~xceptionlTis defined in Section 8(b).
"FIRPTA Affidavit" is defined in Section 9(b).
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Purchase & Sale Agreement, Septcmbcr October 1999
~-Iazardous Substancesl7 includes without limitation:
(a) Those substances included within the definitions of {]hazardous substance,gl
Dhazardous waste,[~ ~hazardous material,{] ~toxic substance,[~ {]solid waste,{] or
glpollutant or contaminant{] in CERCLA, RCRA, TSCA, HMTA, or under any other
Environmental Law;
(b) Those substances listed in the United States Department of Transportation
(DOT) Table [49 CFR 172.10! ], or by the Environmental Protection Agency (EPA),
or any successor agency, as hazardous substances [40 CFR Part 302];
(c) Other substances, materials, and wastes that are or become regulated or classified
as hazardous or toxic under federal, state, or local laws or regulations; and
(d) Any material, waste, or substance that is:
(i) a petroleum or refined petroleum product,
(ii) asbestos,
(iii) polychlorinated biphenyl,
(iv) designated as a hazardous substance pursuant to 33 USCA {] 1321 or
listed pursuant to 33 USCA ~ ! 317,
(v) a flammable explosive, or
(vi) a radioactive material.
lTPreliminary ReportlTis defined in Section 8(a).
lTPrevailing Party~Tis defined in Section 18.
lTPropertylTmeans the Real Property together with all easements, rights and
appurtenances thereto, all improvements now located thereon, and all of Seller's
right, title and interest in all public ways adjoining the same.
l?Purchase Pricd7is defined in Section 3.
lTFitle Policy~Tis defined in Section 9(a).
UWithholdingAf-fidavit#is defined in Section 9(b).
Section 2. Purchase and Sale.
Seller agrees to sell and Purchaser agrees to purchase the Property subject to
the terms and conditions in this Agreement.
Section 3. Purchase Price.
(a) The purchase price for the Property shall be Four Hundred And Seventy
Five Thousand Dollars ($475,000.00) (~Purchase Price{]) and shall be payable as
follows. On or before the Closing Date, Purchaser shall deposit with Escrow Agent
the total amount of the Purchase Price in cash or in immediately available funds.
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Purchase & Sale Agreement, Scptcmbcr October 1999 ]
(b) Pursuant to PurchaserDs letter to Seller dated April 5, 1999, Purchaser has
deposited with Escrow Agent the sum of Two Thousand Five Hundred Dollars
($2,500.00) as earnest money (DDeposit~). Said Deposit shall be distributed to Seller
according to the terms of this Agreement.
Section 4. Escrow.
By this Agreement, Purchaser and Seller establish an escrow ([lEscrow{]) with
First American Title Company, 151 - 87th Street, Daly City, CA 94015 (DEscrow
Agent[l), subject to the provisions of the standard conditions for acceptance of escrow
and the terms and conditions in this Agreement, with a signed counterpart of this
document to be delivered as escrow instructions to Escrow Agent. In the event of any
conflict between the terms of this Agreement and the standard conditions for
acceptance of escrow, the terms of this Agreement shall control.
Section 5. Seller[is Disclosure Obligation.
Within five (5) days following the full execution of this Agreement by both
parties, Seller shall deliver to Purchaser copies of all architectural plans, surveys,
specifications, engineering and environmental reports, studies, tests, monitoring
results, records, correspondence with governmental entities, and other documents
pertaining to the physical, geological, or environmental condition of the Property that
are owned by or in the possession or control of Seller. In addition, Purchaser and its
agents, employees, or contractors shall have the right, from the date of this
Agreement until the Closing Date, to contact any federal, state, or local governmental
authority or agency to investigate any matters relating to the Property.
Section 6. Conditions to Purchaserl]s Performance.
PurchaserSs obligation to perform under this Agreement is subject to the
following conditions:
(a) Seller's delivery to Purchaser of a letter from the Director, San Mateo
County Environmental Health Division (flCounty~), to the effect that the soils on the
Property have been remediated to the satisfaction of the County and that no further
soil remediation is required;
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Purchase & Sale Agreement, Scptcmbcr October 1999
(b) Sellerfls delivery to Purchaser of satisfactory evidence of payment of bills
for testing, remediation, or improvement of the Property performed in the six months
prior to the Closing Date or reasonable security against mechanicsD liens.
(c) Seller0s performance of all obligations under this Agreement;
(d) Escrow Agent being prepared to issue the Title Policy on the Close of
Escrow, subject only to the Approved Exceptions; and
Section 7. Conditions to Seller~s Performance.
Seller0s obligation to perform under this Agreement is subject to satisfaction of
the following conditions:
(a) Purchaser~s performance of all of the obligations which it is required to
perform pursuant to this Agreement.
Section 8. Title.
(a) Immediately following the execution of this Agreement by both parties,
Purchaser shall cause Escrow Agent to issue to Purchaser (with a copy to Seller) a
preliminary report for a CLTA Standard Policy of Title Insurance for the Property,
setting forth all recorded liens, encumbrances, easements, restrictions, conditions,
pending litigation, judgments, administrative proceedings, and other matters affecting
Seller's title to the Property ("Preliminary Report"), together with copies of all
documents relating to title exceptions referred to in the Preliminary Report.
(b) Purchaser shall approve or disapprove each exception shown on the
Preliminary Report (DExceptions~) within seven (7) days following the receipt of the
Preliminary Report. PurchaserDs failure to object within the seven (7) day period
shall be deemed to be a disapproval of the Exceptions. The Exceptions approved by
Purchaser hereunder shall be referred to as the [lApproved Exceptions.~
(c) If any Exception is disapproved or deemed disapproved (each a
~Disapproved Exception0), Seller shall have the right, but not the obligation, within
thirty (30) days following expiration of the seven (7) day period provided under
Section 9(b) above, to cause each Disapproved Exception to be discharged, satisfied,
released, or terminated, as the case may be, of record, and in a form that is
reasonably satisfactory to Purchaser and Escrow Agent, all at Seller~s sole cost and
905 Linden Ave., South San Francisco, Ca. 5 OF 17
Purchase & Sale Agreement, September October 1999 [
expense. Seller authorizes Escrow Agent to disburse from the cash portion of the
Purchase Price and proceeds otherwise disbursable to Seller upon Close of Escrow the
sum sufficient to discharge any Disapproved Exception that may be discharged only
by the payment of money. If Seller is unable or unwilling to obtain a discharge,
satisfaction, release, or termination of any Disapproved Exception within the period
specified above, then this Agreement shall automatically terminate ten (10) business
days after expiration of the 30-day period for curing the Disapproved Exceptions or
after Seller advises Purchaser in writing that Seller is unable or unwilling to cause
such discharge, satisfaction, release, or termination, whichever occurs first, unless
within such 1 O-business-day period Purchaser waives in writing such Disapproved
Exception, in which event such Disapproved Exception shall be deemed an Approved
Exception under this Agreement. If this Agreement terminates pursuant to the
foregoing sentence, then Seller shall pay all charges of the Escrow Agent in
connection with this transaction; and the parties shall be relieved of all further
obligations and liabilities to each other under this Agreement except as otherwise
provided herein, and all funds and documents deposited with Escrow Agent shall be
promptly refunded or returned, as the case may be, by Escrow Agent to the
depositing party. Anything above to the contrary notwithstanding, it is understood
and agreed that the mutual indemnities under Section 17 below, shall not terminate
upon termination of this Agreement pursuant to this or any other provision hereof.
Section 9. Close of Escrow.
(a) Title. Simultaneously with the Close of Escrow, Escrow Agent shall issue:
(i) a CLTA Standard Policy of Tide Insurance (DTitle Policy[3) in the
amount of the Purchase Price, subject only to the following matters:
(A) a lien for real property taxes, bonds, and assessments not
then due; and
(B) Approved Exceptions.
(b) Seller[3s Deposits into Escrow. Seller shall deposit with Escrow Agent on or
prior to the Close of Escrow the following documents:
(i) a grant deed executed and acknowledged by Seller conveying to
Purchaser good marketable fee simple tide to the Property, subject only to the
Approved Exceptions ([3Deedl]);
905 Linden Ave., South San Francisco, Ca. 6 OF 17
Purchase & Sale Agreement, September October 1999 [
(ii) Seller[is affidavit of nonforeign status as contemplated by Section
1445 of the Internal Revenue Code of 1986, as amended (0FIRPTA Affidavit[l); and
(iii) Seller[is affidavit as contemplated by the Revenue and Taxation
Code Section 18662 ([lWithholding Affidavit[l).
(c) Purchaser[is Deposits into Escrow. Purchaser shall deposit with Escrow
Agent, on or prior to the Close of Escrow, the following:
(i) the balance of the Purchase Price in accordance with Section 3(b);
and
(ii) Purchaser[is Certificate of Acceptance as contemplated by
Government Code Section 27281.
(d) Closing Date. The conveyance of the Property to Purchaser and the dosing
of this transaction (DClose of Escrow{]) shall take place within seven (7) days
following the satisfaction of the conditions set forth in Sections 6 and 7 (~]Closing
Date[l).
(e) On the Closing Date, Escrow Agent shall close Escrow as follows:
(i) record the Deed and Purchaser[is Certificate of Acceptance (marked
for return to Purchaser) with the San Mateo County Recorder (which shall be
deemed delivery to Purchaser);
(ii) issue the Title Policy;
(iii) prorate taxes, assessments, rents, and other charges as provided in
Section 1 Off);
(iv) disburse to Seller the Purchase Price and Deposit, less prorated
amounts and charges to be paid by or on behalf of Seller;
(v) charge Purchaser for those costs and expenses to be paid by
Purchaser pursuant to this Agreement and disburse any net funds remaining after the
.. _ preceding disbursements to Purchaser;
905 Linden Ave., South San Francisco, Ca. 7 OF 17
Purchase & Sale Agreement, September October 1999 I
(vi) prepare and deliver to both Purchaser and Seller one signed copy of
Escrow AgentDs closing statement showing all receipts and disbursements of the
Escrow;
(vii) deliver to Purchaser the FIRPTA Affidavit, and the Withholding
Affidavit.
If Escrow Agent is unable to simultaneously perform all of the instructions set
forth above, Escrow Agent shall notify Purchaser and Seller and retain all funds and
documents pending receipt of further instructions jointly issued by Purchaser and
Seller.
(f) Prorations. Escrow Agent shall prorate the following costs at the Close of
Escrow:
(i) Seller shall pay:
(A) all governmental conveyancing fees and taxes due upon
,,, transfer of the Property.
(ii) Purchaser shall pay:
(A) all charges in connection with issuance of a CLTA Standard
Policy of Title Insurance in the amount of the Purchase Price;
(B) the recording charges, if any, in connection with recordation
of the Deed; and
(C) the escrow fee charged by Escrow Agent.
(iii) Real Estate Taxes, Bonds, and Assessments. Real property taxes
shall be prorated at the Close of Escrow based on the most current real property tax
bill available, including any additional property taxes that may be assessed after the
Close of Escrow but that relate to a period prior to the Close of Escrow, regardless of
when notice of those taxes is received or who receives the notice. Ail installments of
any bond or assessment that constitutes a lien on the Property at the Close of Escrow
shall be paid by Seller.
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Purchase & Sale Agreement, September October 1999 ]
(g) Possession. Possession of the Property shall be delivered to Purchaser at the
Close of Escrow.
Section 10. Damage and Destruction.
If any portion of the Real Property is damaged by earthquake, mudslide, fire,
release of or exposure to any Hazardous Substances, or any other casualty (other
than any damage caused by Purchaser or its employees, agents, or contractors), prior
to the Close of Escrow, Purchaser may elect either (i) to terminate this Agreement
upon written notice to Seller, in which event neither party shall have any further
obligations under this Agreement except as otherwise provided in this Agreement, or
(ii) to proceed with the purchase of the Property, in which event this Agreement shall
remain in full force and effect, and (A) Seller shall pay or assign to Purchaser any
amount due from or paid by any insurance company or any other party as a result of
the damage and (B) the amount of any deductible under SellerDs insurance policy
and/or the cost of repairing or correcting such damage not covered by insurance shall
be credited against the cash portion of the Purchase Price and shall reduce the
amount payable at Close of Escrow pursuant to Section 3 hereof.
Section 11. Liquidated Damages.
IF PURCHASER FAILS TO COMPLETE THE PURCHASE
PROVIDED FOR IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF
PURCHASER, SELLER SHALL BE RELEASED FROM SELLER'S OBLIGATION
TO SELL THE PROPERTY TO PURCHASER AND MAY PROCEED AGAINST
PURCHASER UPON ANY CLAIM OR REMEDY THAT SELLER MAY HAVE IN
LAW OR EQUITY; PROVIDED, HOWEVER, THAT, BY INITIALING THIS
SECTION 12 PURCHASER AND SELLER AGREE THAT IN EVENT OF
DEFAULT BY PURCHASER, (A) IT WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (B) AN AMOUNT
EQUAL TO THE DEPOSIT MADE BY PURCHASER PURSUANT TO SECTION
3(a) OF THIS AGREEMENT SHALL CONSTITUTE LIQUIDATED DAMAGES
PAYABLE TO SELLER; (C) THE PAYMENT OF THE LIQUIDATED DAMAGES
TO SELLER SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF SELLER;
AND (D) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN
THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT
INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO
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Purchase & Sale Agreement, September October 1999 [
SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE
CALIFORNIA CIVIL CODE.
If Escrow fails to dose by reason of any default by Seller, the Escrow shall be
canceled and neither party shall have any rights or responsibilities to the other,
except as otherwise provided in this Agreement.
Section 12. Groundwater Monitoring and Site Closure.
SellerDs operation of the Property has resulted in residual groundwater
contamination, subjecting the Property to certain remediation requirements imposed
by the San Mateo County Environmental Health Division ("County"). The Purchase
Price for the Property has not been discounted on account of such contamination.
Seller has received a Letter of Commitment from the State of California
Underground Storage Tank Cleanup Fund ([lFund[l) for reimbursement of costs
incurred by Seller in connection with the testing, monitoring, and remediation
required in order to obtain closure of the site.
After the dose of escrow, pt2urchaser will, for its own convenience, implement
the continuing monitoring, remediation, and closure activities as required by the
County. At close of escrow, Purchaser and Seller shall execute an agreement in the
form provided in Exhibit B attached hereto and incorporated by reference, whereby
Purchaser will become a co-payee for reimbursement from the Fund ([lCo-Payee
Agreement[l). If the Fund does not accept Purchaser as Seller's agent for purposes of
filing claims for reimbursement, Seller hereby agrees to promptly submit to the Fund
all claims for reimbursement for activities conducted by Purchaser after dose of
escrow, as such claims are provided to Seller by Purchaser, and to promptly remit to
Purchaser all payment for such claims when received from the Fund.
Section 13. Seller[is Indemnification and Hold Harmless
Seller shall indemnify and hold Purchaser harmless from and against any and
all liability, loss, damage, cost, or expenses (including reasonable attorney fees and
court costs, amounts paid in settlements and judgment) arising from or as a result of
pre-existing Hazardous Substances on or beneath the Property, including any such
liability, loss, damage, cost or expenses resulting from past or future migration of
such Hazardous Substances from the Property to any other property. Provided, that
905 Linden Ave., South San Francisco, Ca. 10 OF 17
Purchase & Sale Agreement, Scptcmbcr October 1999
Seller's indemnification of Purchaser pursuant to this Section 13 shall not exceed the
amount available from the Fund in reimbursement of such liability, loss, damage,
cost, or expense. Seller shall cooperate fully with Purchaser in securing such
reimbursement from the Fund. As used in this Section, Dpre-existingD means those
Hazardous Substances that were present on or beneath the Property prior to the
Closing Date.
This agreement by Seller to indemnify and hold Purchaser harmless applies to
claims brought by any third party based upon Environmental Laws, resulting from
the release, threatened release, or migration of pre-existing Hazardous Substances and
any claims for property damage or damages for personal injury related thereto.
Section 14. SellerDs Representations, Warranties, and Covenants.
(a) Seller represents and warrants to Purchaser that as of the date of this
Agreement and as of the Close of Escrow:
(i) Seller has disclosed to Purchaser all information, records, and studies
in Seller's possession in connection with the Property concerning Hazardous
Substances.
(ii) No leases, licenses, or other agreements allowing any third party
rights to use the Property are or will be in force.
(iii) Any information that Seller has delivered to Purchaser, either
directly or through Seller's agents, is accurate and Seller has disclosed all material
facts concerning the operation, development, or condition of the Property.
Seller shall promptly notify Purchaser of any facts that would cause any of the
representations contained in this Agreement to be untrue as of the Close of Escrow
(b) Commencing with the full execution of this Agreement by both parties
and until the Close of Escrow:
(i) Seller shall not permit any liens, encumbrances, or easements to be
placed on the Property, other than the Approved Exceptions, nor shall Seller enter
into any agreement regarding the sale, rental, management, repair, improvement, or
any other matter affecting the Property that would be binding on Purchaser or the
Property after the Close of Escrow without the prior written consent of Purchaser.
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Purchase & Sale Agreement, Septcmbcr October 1999 [
(ii) Seller 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.
Section 15. Relocation, Goodwill and Other Compensation
Seller hereby releases Purchaser and waives all of its rights, if any, to (a)
receive from Purchaser an appraisal of the fair market value of the Property before
commencing negotiations or Close of Escrow, (b) receive relocation benefits and/or
relocation payments as contemplated in H & S Code Section 33415 relating to
PurchaserDs acquisition of the Property, (c) receive compensation for loss of business
goodwill resulting from PurchaserDs acquisition of the Property, and (d) receive
compensation for any fixtures, machinery, equipment or other personal property.
Section 16. Authority of Parties.
(a) Seller warrants that this Agreement and all other documents delivered prior
to or at the Close of Escrow:
(i) have been authorized, executed, and delivered by Seller;
(ii) are binding obligations of Seller;
(iii) are collectively sufficient to transfer all of SellerOs rights to the
Property; and
(iv) do not violate the provisions of any agreement to which Seller is a
party or which affects the Property.
(b) Purchaser warrants that this Agreement and all other documents delivered
prior to or on the Close of Escrow:
(i) have been authorized, executed, and delivered by Purchaser;
(ii) are binding obligations of Purchaser; and
(iii) do not violate the provisions of any agreement to which Purchaser
is a party.
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(c) The parties warrant that the persons executing this Agreement on their
behalf are authorized to do so, and on execution of this Agreement, this Agreement
shall be valid and enforceable against Purchaser or Seller in accordance with this
Agreement.
Section 17. Brokers.
Each party warrants and represents to the other that no brokers have been
retained or consulted in connection with this transaction. 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 that partyDs representations,
warranties, or covenants under this Agreement.
Section 18. Attorney Fees.
If litigation is commenced between the parties, the Prevailing Party in that
litigation shall be entitled to recover from the nonprevailing party all reasonable
attorney fees and costs. 0Prevailing PartyD shall include without limitation a party
who dismisses an action in exchange for sums allegedly due; the party who receives
performance from the other party for an alleged breach of contract or a desired
remedy where the performance is substantially equal to the relief sought in an action;
or the party determined to be the prevailing party by a court of law.
Section 19. Notices.
All notices to be given under this Agreement shall be in writing and sent by
(a) certified mail, return receipt requested, in which case notice shall be
deemed delivered three (3) business days after deposit, postage prepaid in the United
States Mail,
(b) a nationally recognized overnight courier, in which case notice shall be
deemed delivered one ( 1 ) business day after deposit with that courier,
(c) hand delivery, in which case notice shall be deemed delivered upon receipt,
or
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(d) telecopy or similar means if a copy of the notice is also sent by United
States Certified Mail, in which case notice shall be deemed delivered on transmittal
by telecopier or other similar means, provided that a transmission report is generated
reflecting the accurate transmission of the notices,
and addressed as follows:
To Purchaser: Redevelopment Agency of the City of South San Francisco
400 Grand Ave.
P.O. Box 711
South San Francisco, Ca. 94083
Attn: Michael A. Wilson, Executive Director
With a copy to: Deborah L. Rhoads, Atty.
Meyers, Nave, Riback, Silver & Wilson
777 Davis St., Suite 300
San Leandro, Ca. 94577
To Seller: Jose A. Montes & Maria G. Montes, Trustees
The Montes Family Revocable Trust
620 E1 Camino Real
San Bruno, Ca. 94066
or to such other address as Purchaser or Seller may respectively designate by written
notice to the other.
Section 20. Entire Agreement.
This Agreement and the documents referenced herein contain the entire
agreement between the parties to this Agreement and shall not be modified in any
manner except by an instrument in writing executed by the parties or their respective
successors in interest.
Section 21. Severability.
If any term or provision of this Agreement shall, to any extent, be held invalid
or unenforceable, the remainder of this Agreement shall not be affected.
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Section 22. Waivers.
A waiver or breach of covenant or provision in this Agreement shall not be
deemed a waiver of any other covenant or provision in this Agreement, 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.
Section 23. Construction.
The section headings and captions of this Agreement are, and the arrangement
of this instrument is, for the sole convenience of the parties to this Agreement. The
section headings, captions, and arrangement of this instrument do not in any way
affect, limit, amplify, or modify the terms and provisions of this Agreement. The
singular form shall include plural, and vice versa. This Agreement shall not be
construed as if it had been prepared by one of the parties, but rather as if both parties
have prepared it. Unless otherwise indicated, all references to sections are to this
Agreement. All exhibits referred to in this Agreement are attached to it and
incorporated in it by this reference.
Section 24. Merger.
Ail of the terms, provisions, representations, warranties, and covenants of the
parties under this Agreement shall survive the Close of Escrow and shall not be
merged in the Deed or other documents.
Section 25. Counterparts.
This Agreement may be executed in one or more counterparts. Each shall be
deemed an original and all, taken together, shall constitute one and the same
instrument.
Section 26. Time of the Essence.
Time is of the essence in this Agreement.
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Section 27. Successors.
This Agreement shall inure to the benefit of and shall be binding upon the
parties to this Agreement and their respective heirs, successors, and assigns.
Section 28. Governing Law.
This Agreement shall be governed and construed in accordance with California
law.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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Purchase & Sale Agreement, Scptembcr October 1999 [
The parties have executed this Agreement as of the date first written above.
PURCHASER:
REDEVELOPMENT AGENCY OF THE
CITY OF SOUTH SAN FRANCISCO
Date signed: By:
Michael A. Wilson, Executive Director
Approved as to form:
Agency Counsel
Attest:
Agency Secretary
SELLER:
MONTES FAMILY REVOCABLE TRUST
Date Signed:
Jose A. Montes, Trustee
Date Signed:
Maria G. Montes, Trustee
AGREED TO AND ACCEPTED:
Escrow Agent
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Purchase & Sale Agreement, Scptcmbcr October 1999
EXHIBIT A
Legal Description
In the State of Califomia, County of San Mateo, City of South San Francisco,
BEGINNING at the intersection of the Westerly line of Linden Avenue with the
Northwesterly line of Armour Avenue in the City of South San Francisco, said
point of beginning being distant North 15° 33' East 63.04 feet and South 56° 34'
14'East 6.37 feet from the most Easterly comer of Block 129, Map of South San
Francisco, Plat #1, filed for record March 1, 1892, in Volume "B" of Maps at Page
6, San Mateo County Records; running thence from said point of beginning along
Northeasterly line of Armour Avenue North 56° 34' 14" West 58.91 feet; thence
leaving Armour Avenue North 15° 33' East 100 feet; thence North 57° 44' East
73.90 feet to the Southwesterly line of Hillside Boulevard; thence along the
Southwesterly line of Hillside Boulevard South 32° 16' East 79.09 feet to the
Westerly line of Linden Avenue; thence along the Westerly line of Linden Avenue
on a curve left having a radius of 309.90 feet, a distance of 131.59 feet to the point
of beginning.
A.P. No. 012-101-100 JPN 012 010 101 10 A
905 Linden Ave., South San Francisco, Ca.
Purchase & Sale Agreement, September 1999
EXHIBIT B
CO-PAYEE AGREEMENT
905 Linden Ave., South San Francisco, Ca.
Purchase & Sale Agreement, September 1999
CO-PAYEE AGREEMENT
This Co-Payee Agreement is entered into this __ day of ,1999, by
and between Jose A. Montes and Maria G. Montes, as Trustees of the Montes Family Revocable
Trust ("Payee") and the Redevelopment Agency of the City of South San Francisco ("Agency").
RECITALS
WHEREAS, Agency has purchased from Payee certain real property located at 905
Linden Avenue, South San Francisco, California, more particularly described in Exhibit A
attached hereto and incorporated by reference ("Property"); and
WHEREAS, Payee operated a gas station on the Property that included several
underground storage tanks, resulting in contamination of both soil and groundwater; and
WHEREAS, Payee has remediated contaminated soil on the Property but residual
contamination remains in the groundwater, and the San Mateo County Environmental Health
Division ("County") requires monitoring of the groundwater to determine if additional
remediation will be required; and
WHEREAS, Seller has received a Letter of Commitment from the State of California
Underground Storage Tank Cleanup Fund ("Fund") for the reimbursement of certain remediation
costs incurred by Payee; and
WHEREAS, Agency purchased the Property for its fair market value appraised as clean
with no discount to Agency for the residual contamination, and the parties intend that Payee
remain fully responsible for the cost of further remediation activities required by the County to
obtain a Closure Letter for the Property; and
WHEREAS, Agency will, for its own convenience, implement the groundwater
monitoring, remediation, and closure activities required by the County.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Agency will take all appropriate steps to assure that its remediation costs will be
fully reimbursable by the Fund.
2 Payee hereby designates Agency as a co-payee for disbursements from the Fund
that are made in payment of claims for reimbursement of costs related to remedial actions taken
after the effective date of this Agreement.
905 Linden Ave., South San Francisco, Ca.
Purchase & Sale Agreement, 8eptembor October 1999
3. Agency's designation as a co-payee shall not be inferred to and does not in any
way constitute an acknowledgment by Agency of any liability for harm resulting from the
contamination of the Property or an acceptance of any responsibility for remediation of such
contamination. Payee shall remain full), responsible for remodiation of the Proporty.
PAYEE:
MONTES FAMILY REVOCABLE TRUST
Date signed:
Jose A. Montes, Trustee
Date Signed:
Maria G. Montes, Trustee
AGENCY:
REDEVELOPMENT AGENCY OF THE CITY OF
SOUTH SAN FRANCISCO
Date signed:
Michael A. Wilson, Execmive Director
Approved as to form:
Agency Counsel
Attest:
Agency Secretary
905 Linden Ave., South San Francisco, Ca.
Purchase & Sale Agreement, September October 1999 I
F:\WPDhMNRSW~405\00 lhRedevelopment\LINDEN~LUST Co-Payee Agreement.doc
905 Linden Ave., South San Francisco, Ca.
Purchase & Sale Agreement, September October 1999
EXHIBIT A
Legal Description
In the State of California, County of San Mateo, City of South San Francisco,
BEGINNING at the intersection of the Westerly line of Linden Avenue with the Northwesterly
line of Armour Avenue in the City of South San Francisco, said point of beginning being distant
North 15° 33' East 63.04 feet and South 56° 34' 14" East 6.37 feet from the most Easterly comer
of Block 129, Map of South San Francisco, Plat #1, filed for record March 1, 1892, in Volume
"B" of Maps at Page 6, San Mateo County Records; running thence from said point of beginning
along Northeasterly line of Armour Avenue North 56° 34' 14" West 58.91 feet; thence leaving
Armour Avenue North 15° 33' East 100 feet; thence North 57° 44' East 73.90 feet to the
Southwesterly line of Hillside Boulevard; thence along the Southwesterly line of Hillside
Boulevard South 32° 16' East 79.09 feet to the Westerly line of Linden Avenue; thence along the
Westerly line of Linden Avenue on a curve left having a radius of 309.90 feet, a distance of
131.59 feet to the point of beginning.
A.P. No. 012-101-100 JPN 012 010 101 10 A
905 Linden Ave., South San Francisco, Ca.
Purchase & Sale Agreement, 8eptembor October 1999 I