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HomeMy WebLinkAboutReso RDA 5-2004RESOLUTION NO. RDA 05-2004 REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING A PURCHASE AND SALE AGREEMENT FOR THE ACQUISITION OF PROPERTY AND IMPROVEMENTS I,OCATED AT 480 NORTH CANAl, STREET IN THE AMOUNT OF $,5 MILLION AND AMENDING THE 2003-2004 REDEVELOPMENT AGENCY BUDGET WHEREAS, staff recommends that the Board authorizes a Purchase and Sale Agreement for the acquisition of property and improvements located at 480 North Canal Street in the amount of $5 million; and WHEREAS, the Capital Improvement Plan has $2.9 million budgeted in the current year for acquisition of this fire station; and WHEREAS, these funds and the additional $2.1 million necessary to complete the sale are available from remaining Downtown/Central Redevelopment Bond Funds. NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of South San Francisco that the Redevelopment Agency hereby authorizes a Purchase and Sale Agreement for the acquisition of property and improvements located at 480 North Canal Street in the amount of $5 million and amends the 2003-2004 Redevelopment Agency budget to appropriate an additional $2.1 million from Downtown/Central Bond funds to complete the purchase. A copy of the agreement is attached as Exhibit A. BE IT FURTHER RESOLVED that the Executive Director is hereby authorized to execute the agreement on behalf of the Redevelopment Agency of the City of South San Francisco. 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 14th day of April 2004 by the following vote: AYES: NOES: ABSTAIN: ABSENT: Boardmembers Joseph A. Fernekes, Richard A. Garbarino, and Pedro Gonzalez, Vice Chair Raymond L. Green, and Chair Karyl Matsumoto None. None. None. ATTEST:_/~/'~-.~Jd 6i[/ Clerk/~)' PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into effective as of April 14, 2004 (the date upon which this Agreement was approved by Buyer's Board, and hereinafter referred to as the "Effective Date") by and between Three Sisters Ranch Enterprises LLC (hereinafter collectively referred to as "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, APN No. 014-061-110, located at 480 N. Canal Street in the City of South San Francisco and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Land"); WHEREAS, on March 15, 2004, Buyer, acting pursuant to Government Code section 7267.2, made an offer to purchase the Land and fixtures thereon; WHEREAS, in accordance with the terms and conditions contained herein, Buyer desires to purchase, and Seller desires to sell, the Land together with all improvements located thereon and all easements, hereditaments, and appurtenances belonging to or inuring to the benefit of Seller and pertaining to the Land (all of the foregoing collectively hereinafter, the "Property"); WHEREAS, Buyer is a redevelopment agency existing pursuant to the Community Redevelopment Law, California Health and Safety Code Section 33000, et seq., and pursuant to the authority granted therein, Buyer has the responsibility to carry out the Redevelopment Plan for the Downtown Central Project Area ("Redevelopment Plan"); and WHEREAS, the Property is located adjacent to an area governed by the Redevelopment Plan, and the purchase of the Property as provided for in this Agreement is consistent with and necessary to further the goals and objectives of the Redevelopment Plan. Specifically, the property is planned for use as a fire station that will replace or supplement an existing fire station within the redevelopment area and will serve properties within the redevelopment area. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Aareement to Sell and Purchase. Seller agrees to sell and Buyer agrees to purchase the Property subject to the terms and conditions of this Agreement. 2. Purchase Price. The purchase price for the Property shall be Five Million United States Dollars ($5,000,000) ("Purchase Price"). 3. Conveyance of Title. At the 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: 670973-1 (a) the provisions and effect of the Redevelopment Plan; (b) 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; and (c) such other conditions, liens, encumbrances, restrictions and exceptions as may be approved in writing by Buyer ("Permitted Exceptions"). 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 Fidelity Title Company located in Redwood City, California - Escrow Agent Tina Davis ("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 Five Thousand Dollars ($5,000) ("Earnest Money Deposit") into escrow in an interest bear/ng account for the benefit of Buyer. The Earnest Money Deposit, and all interest earned thereon, shall be applied to the Purchase Price at the close of escrow. All amounts deposited by the Parties with the Escrow Agent, including the Earnest Money Deposit, shall be held in escrow in an interest-bearing account. 6. Title Documents. Within seven (7) days following the opening of escrow, Seller shall deliver or cause to be delivered to Buyer a preliminary title report ("Preliminary Report") on the Property issued by the Title Company, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters of record affecting Seller's title to the Property, together with copies of all documents relating to exceptions listed in the Preliminary Report ("Title Exceptions") and complete and legible copies of all instruments referred to therein, as requested by Buyer. Buyer shall approve or disapprove each Title Exception within seven (7) days following Buyer's receipt of the Preliminary Report. Buyer's failure to object within such period shall be deemed to be a disapproval of the Title Exceptions. If Buyer objects 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 fourteen (14) 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. In the event Buyer elects to terminate this Agreement, the Earnest Money Deposit, including interest thereon, and all other 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. 670973-1 2 It shall be a condition to the close of escrow that Title Company shall deliver to Buyer, within five (5) days after Buyer has approved the Preliminary Report pursuant to this Section, and in no event later than seven (7) days prior to the close of escrow, a title commitment for an ALTA Owner's Title Insurance Policy ("Title Policy") to be issued by Title Company in the amount of the Purchase Price for the benefit and protection of Buyer, showing 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. Closin~ Documents and Funds. (a) Seller. (A) Within twenty-five (25) days following the opening 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 good and marketable fee simple title to the Property, subject only to exceptions approved pursuant to this Agreement; and (ii) Seller's affidavit of non-foreign status and Seller's certification that Seller is a resident of California, each executed by Seller under penalty of perjury as required by state and federal law; and (iii) Such additional duly executed instruments and documents as the Escrow Agent may reasonably require to consummate the transaction contemplated hereby; (iv) A copy of the document reconveying the leasehold interest presently held by Perrier Corporation and Black Mountain Corporation on the Property to Seller and releasing any and all interest in the Property. (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 close of escrow, Seller shall deposit into escrow immediately available funds in the amount necessary to pay: (i) all governmental conveyance fees; and (ii) one-half (1/2) of all title insurance and title report costs; and (iii) one-half of all escrow fees and recording fees. 670973-1 3 (b) Buyer. (A) Within twenty-five (25) days following the opening of escrow, Buyer shall deposit into escrow all of the following: (i) a duly executed and acknowledged Certificate of Acceptance substantially in the form attached to Exhibit C; and (ii) 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 (1) business day prior to the close of escrow, Buyer shall deposit into escrow immediately available funds in the amount, which together with the Earnest Money Deposit plus interest thereon, if any, is equal to: and (i) the Purchase Price as adjusted by any prorations between the Parties; (ii) one-half (1/2) of all title insurance and title report costs, escrow fees, and recording fees; and, (iii) any City transfer tax that may be due. 8. Close of Escrow. Unless this Agreement is terminated pursuant to the terms hereof or extended by mutual written consent of the Parties, escrow shall close no later than May 26, 2004. 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; and (iv) delivering to Buyer the original Grant Deed, together with a conformed copy thereof indicating recording information thereon. Possession of the Property shall be delivered to Buyer at the close of escrow. 9. Closin~ Costs. Each Party shall pay one-half (1/2) of all title insurance and title report costs, escrow fees (including the costs of preparing documents and instruments), and recording fees, and other closing costs, including County transfer tax, if any. 10. Prorations. At the close of escrow, the Escrow Agent shall make the following prorations: (i) 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; and (ii) any bond or assessment that constitutes a lien on the Property at the close of escrow shall be assumed by Buyer. 670973-1 4 11. Buyer's Conditions to Closina. The close of escrow and Buyer's obligation to purchase the Property are conditioned upon: (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, subject only to the Permitted Exceptions; and (iv) Buyer's approval of the condition of the Property pursuant to Section 12. ShouId 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 any and all amounts paid by Buyer to Seller or deposited with the Escrow Agent by or on behalf of Buyer, including the Earnest Money Deposit and interest thereon. 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. Buyer's Additional Conditions to Closing. Buyer's obligation to purchase the Property is also conditioned upon Buyer's review and approval of the condition of the Property pursuant to this Section. (a) Feasibilitw Studies. During the period commencing on the Effective Date and ending on the Fortieth (40th) day after the opening of escrow ("Due Diligence Period") Buyer may, at Buyer's expense, undertake an inspection and review of the Property, including without limitation (i) a review of the physical condition of the Property, including but not limited to,. inspection and examination of soils, environmental factors, Hazardous Materials (as defined in Exhibit D attached hereto), 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 Substances 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 for up to fifteen (15) 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 provided by Seller, all contracts, leases, rental agreements and other obligations relating to the Property, and the Property's conformity with all applicable laws and regulations. During the Due Diligence Period, Buyer shall have the right to perform due diligence regarding the investigation, assessment, and monitoring of the environmental condition of the 670973-1 5 Property, and upon completion of the Due Diligence Period, unless Buyer elects to terminate this Agreement pursuant to the terms hereof, Buyer will purchase the Property in its "AS IS" condition as such condition exists at the end of the Due Diligence Period. (c) Disal~l~roval of Prol~ertv Condition. Should Buyer fail to approve the condition of the Property or its feasibility for Buyer's intended use in writing within five (5) days following the end of the Due Diligence Period, Buyer shall have the right, exercisable by giving written notice to Seller, to cancel the escrow, terminate this Agreement, and recover any and all amounts paid by Buyer to Seller or deposited with the Escrow Agent by or on behalf of Buyer, including the Earnest Money Deposit and interest thereon. 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. (d) Condition of Prol~ertw. Buyer has the right to enter and inspect the property to ensure that it is free of debris before transfer of title. Additionally, Seller shall ensure that all electronic gates are in working order and that all remote transponders for the facility are transferred to Seller at transfer of title. 13. Studies, Rel~orts and Investieations. Seller agrees to make available to Buyer within five (5) business days following the Effective Date, any and all information, studies, reports, investigations, contracts, leases, rental agreements and other obligations concerning or relating to the Property which are in Seller's possession or which are reasonably available to Seller, including without limitation surveys, studies, reports and investigations concerning the Property's physical, environmental or geological condition, habitability, or the presence or absence of Hazardous Materials in, on or under the Property and the compliance by the Property with Environmental Laws (as defined in Exhibit D). 14. Right of Entry. During the Due Diligence Period, Buyer and Buyer's agents shall have the fight, upon reasonable notice to Seller, to enter upon the Property for the purpose of inspecting, examining, surveying and reviewing the Property in accordance with Section 12. Buyer's inspection, examination, survey and review of the Property shall be at Buyer's sole expense. Buyer shall obtain Seller's advance consent in writing to any proposed physical testing of the Property by Buyer or Buyer's agents, 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 sole 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 or Buyer's agents entry upon the Property, except to the extent that such liability, loss, cost, damage and expense arises as a result of the negligence or other wrongful conduct of Seller or its agents. 15. Seller's Conditions to Closing. The close of 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 670973-1 6 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; and (iii) Seller entering into a binding termination agreement with its tenant which agreement is satisfactory to Seller and meets the requirements of Paragraph 7(a)(iv). 16. Seller's Rel~resentations and Warranties. Based on the best knowledge of Martin Ruberry, Joseph J. Bullock and James Zanotti,_Seller hereby represents and warrants that except as disclosed in writing to Buyer, as of the Effective Date and as of the close of escrow: (i) the Property is free and has always been free of Hazardous Materials and is not and has never been in violation of any Environmental Law; (ii) there are no buried or partially buried storage tanks located on the Property; (iii) 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; (iv) there is no monitoring program required by the Environmental Protection Agency or any other governmental agency concerning the Property; (v) no toxic or hazardous chemicals, waste, or substances 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; (vi) the Property has never been used as a dump or landfill; (vii) 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; (viii) 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; (ix) no contracts, licenses, leases or commitments regarding the maintenance or use of the Property or allowing any third party rights to use the Property are in force; (x) there are no threatened or pending actions, suits, or administrative proceedings against or affecting the Property or any portion thereof or the interest of Seller in the Property; (xi) there are no threatened or pending condemnation, eminent domain, or similar proceedings affecting the Property or any portion thereof; (xii) Seller has not received any notice from any insurer of defects of the Property which have not been corrected; (xiii) there are no natural or artificial conditions upon the Property or any part thereof that could result in a material and adverse change in the condition of the Property; (xiv) all information that Seller has delivered to Buyer, either directly or through Seller's agents, is accurate and complete; and (xv) Seller has disclosed all material facts concerning the Property. Seller further represents and warrants that this Agreement and all other documents delivered or to be delivered in connection herewith prior to or at the close of escrow: (a) have been duly authorized, executed, and delivered by Seller; (b) are binding obligations of Seller; (c) are collectively sufficient to transfer all of Seller's right, title and interest in and to the Property; and (d) do not violate the provisions of any agreement to which Seller is a party or which affects the Property. Seller further represents and warrants that the persons who have executed this Agreement on behalfof Seller are authorized to do, that Seller has the legal right to enter into this Agreement and to perform all of its terms and conditions, and that this Agreement is enforceable against Seller in accordance with its terms. 670973-1 7 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, the Earnest Money Deposit, including interest thereon, and all other 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. 17. Seller's Covenants. Seller covenants that from the Effective Date and through the close of escrow, Seller: (i) shall not permit any liens, encumbrances, or easements to be placed on the Property, other than Permitted Exceptions; (ii) shall not enter into any agreement regarding the 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; and (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. 18. Buyer's Rel~resentations, 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, 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. 19. Environmental Indemnity. Seller agrees to unconditionally and fully indemnify, reimburse, defend, protect and hold harmless Buyer and the City of South San Francisco, California from and against any and all claims, demands, damages, losses, liabilities, fines, orders, judgments, actions, injunctive or other relief (whether or not based on personal injury, property damage, contamination of, or adverse effects upon, the environment or natural resources), costs, economic or other loss, expenses (including without limitation attorneys' fees and any expenses associated with the investigation, assessment, monitoring, response, removal, treatment, abatement and/or remediation of Hazardous Materials in, on or under the Property), and/or administrative, enforcement or judicial proceedings, whether known or unknown, and which are directly or indirectly, in whole or in part, caused by, arise out of, or relate to the presence, release or discharge or alleged presence, release or discharge of any Hazardous Materials in, on or under the Property or a violation or alleged violation of an Environmental 670973-1 Law caused by Seller, Seller's tenants or any subtenant, guest or invitee of Seller or its tenants or subtenants. Seller and Buyer agree that the maximum amount payable by Seller pursuant to this Section 19 shall not exceed $5,000,000. 20. Damaee 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 $500,000, 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 tights 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 coveting the damage or loss. In the event of damage or destruction of the Property or any portion thereofptior to the close of escrow in an amount in excess of $500,000, Buyer may elect either to terminate this Agreement upon written notice to Seller, or to consummate the purchase of the Property, in which case Seller shall (i) assign and transfer to Buyer all of Seller's rights under any insurance policy coveting 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, the Earnest Money Deposit, including interest thereon, and all other funds and documents deposited into escrow by or on behalf of Buyer shall be returned to Buyer, and all tights and obligations hereunder shall terminate. 21. Assi~znment. Buyer shall have the tight to assign all tights and obligations under this Agreement to any party, and no approval by Seller of any such assignment shall be necessary. 23. Notices. Except as othenvise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (/ii) nationally recognized overnight courier, w/th 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 non-business day. 670973-1 9 Buyer: South San Francisco Redevelopment Agency 400 Grand Avenue South San Francisco, CA 94080 Attn: Executive Director Telephone: 650 877-8500 Facsimile: 650 829-6609 with a copy to: South San Francisco Redevelopment Agency Counsel C/O Meyers, Nave, Riback, Silver & Wilson 555 12th Street, Suite 1500 Oakland, CA 94607 Attn: Agency Counsel Seller: Three Sisters Ranch LLC c/o Martin E. Ruberry P.O. Box 1444 San Carlos, CA 94070 With a copy to: Ted J. Hannig Hannig Law Firm, LLP 2991 El Camino Real Redwood City, CA 94061 23. Miscellaneous Provisions 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. 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 oft/me 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. Successors. This Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors and assignees of the Parties.. 670973-1 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, Seller's representations, warranties and covenants contained herein shall survive the close of escrow. 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. Action or Al~l~roval. 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. The time periods afforded Buyer for any event, inspection, feasibility, due diligence, escrow closing or otherwise shall not be extended by any such referral to Buyer's Board. Entire Affreement. This Agreement, including Exhibits A to E 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 thereto. Counterl~arts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless the fights and obligations of the Parties have been materially altered or abridged thereby. 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 fights or remedies hereunder. 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. Non-Liability of Officials, Eml~loyees and Aeents. 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. 670973-1 ll Time of the Essence. Time is of the essence for each condition, term, obligation and provision of this Agreement. Governin~ Law. 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. Time for Performance. When the time for performance of any obligation under this Agreement is to be measured from another event, such time period shall include the day of the other event. If the day of the time for performance is not a regular business day, then the time for such performance shall be by the regular business day following such day. 670973-I IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first wrJtter~ above. BUYER: ATTEST: By: Michael A. Wilson, Executive Director By: APPROVED AS TO FORM: By: Steven T. Mattas, Agency Counsel SELLER: By: Martin E. Ruberry, President/CEO APPROVED AS TO FORM: By: Ted J. Hannig, Counsel for Three Sisters Ranch, LLC 670973-1 EXHIBIT A PROPERTY (Attach legal description of Property to be purchased by Agency) 670973-1 EXHIBIT B FORM OF GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO c/o Michael A. Wilson, City Manager 400 Grand Avenue South San Francisco, CA 94083 EXEMPT FROM RECORDING FEES PER ) GOVERNMENT CODE §§6103, 27383 ) (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) GRANT DEED For valuable consideration, receipt of which is hereby acknowledged, Three Sisters Ranch Enterprises, LLC hereby grants to the Redevelopment Agency of the City of South San Francisco, a public agency ("Grantee") all that real property located in the City of South San Francisco, County of San Mateo, State of California described in Exhibit A attached hereto and incorporated herein. IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of ,20 GRANTOR By: Three Sisters Ranch Enterprises, LLC By: Martin E. Ruberry, President/CEO Its: APPROVED AS TO FORM: 670973-1 15 (Attach legal description.) Exhibit C CERT~ICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Grant Deed dated , 2004, from to the Redevelopment Agency of the City of South San Francisco, a public agency, is hereby accepted on behalf of the Agency by its Executive Director pursuant to authority conferred by Resolution No. , adopted by the City on ,2004, and that the Agency consents to recordation of the Grant Deed by its duly authorized officer. Dated ,20 By: Michael A. Wilson, Executive Director ATTEST: By: Clerk APPROVED AS TO FORM: By: Agency Counsel 670973-1 EXHIBIT D DEFINITION OF "ENVIRONMENTAL LAWS" AND "HAZARDOUS MATERIALS" "Environmental Laws" means 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 Material (as defined subsequently in this Exhibit), 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 88 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) and the Solid Waste Disposal Act [42 USCA § 8 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 USCA 88 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 USCA 88 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USCA 88 18.01 et seq.]; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) [7 USCA §8 136 et seq.]; the Clean Air Act (CAA) [42 USCA §8 7401 et seq.]; the Safe Drinking Water Act (SDWA) [42 USCA §§ 300fet seq.]; the Surface Mining Control and Reclamation Act of 1977 (SMCRA) [30 USCA 88 1201 et seq.]; the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA or EPCRTKA) [42 USCA 88 11001 et seq.]; the Occupational Safety and Health Act of 1970 (OSHA) [29 USCA §§ 655, 657]; the California laws regarding the underground storage of hazardous substances [H & S C §§ 25280 et seq.]; the Hazardous Substance Account Act [H & S C §§ 25300 et seq.]; the California laws regarding hazardous waste control [H & S C §8 25100 et seq.]; the Safe Drinking Water and Toxic Enforcement Act of 1986 [H & S C §8 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. "Hazardous Materials" includes without limitation: (a) Those substances included within the definitions of hazardous substance,hazardous waste,hazardous material, toxic substance, solid waste, or pollutant or contaminant in CERCLA, RCRA, TSCA, HMTA, or under any other Environmental Law; 17 (b) Those substances listed in the United States Department of Transportation (DOT) Table [49 CFR § 172.101], 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 1317, (v) a flammable explosive, or (vi) a radioactive material.