HomeMy WebLinkAboutOB Reso 05-2017 S h'A City of South San Francisco
5° at c zG P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
_ � Oversight Board
`�z oR`` Resolution: RES 05-2017
File Number: 17-918 Enactment Number: RES 05-2017
RESOLUTION APPROVING THE FINAL SALE PRICE OF
$1,200,000 FOR THE DISPOSITION OF 201-219 GRAND AVENUE
(APNS 012-316-110, 012-316-100, 012-316-090 AND 012-316-080),
PURSUANT TO THE APPROVED LONG RANGE PROPERTY
MANAGEMENT PLAN AND HEALTH AND SAFETY CODE
SECTION 34191.5, WITH THE PROCEEDS TO BE DISTRIBUTED
TO THE LOCAL TAXING ENTITIES.
WHEREAS, on June 29, 2011, the Legislature of the State of California ( "State") adopted Assembly
Bill xl 26 ("AB 26"),which amended provisions of the State's Community Redevelopment Law(Health
and Safety Code sections 33000 et seq.) ("Dissolution Law"), pursuant to which the former
Redevelopment Agency of the City of South San Francisco was dissolved on February 1, 2012; and
WHEREAS, the City became the Successor Agency to the Redevelopment Agency of the City of South
San Francisco ("Successor Agency"); and
WHEREAS,pursuant to Health and Safety Code Section 34191.5(c)(2)(C),property shall not be
transferred to a successor agency, city, county or city and county,unless a Long Range Property
Management Plan("LRPMP")has been approved by the Oversight Board and the California Department
of Finance ("DOF"); and
WHEREAS, in accordance with the Dissolution Law, the Successor Agency prepared a Long Range
Property Management Plan ("LRPMP"), which was approved by a resolution of the Oversight Board for
the Successor Agency to the Redevelopment Agency of the City of South San Francisco ("Oversight
Board") on May 21, 2015, and was approved by the Department of Finance ("DOF") on October 1,
2015; and
WHEREAS, consistent with the Dissolution Law and the LRPMP, certain real properties located in the
City of South San Francisco, that were previously owned by the former Redevelopment Agency was
transferred to the Successor Agency("Agency Properties");and
WHEREAS, on October 18, 2016,the City entered into an Amended and Restated Master Agreement for
Taxing Entity Compensation ("Compensation Agreement") with the various local agencies who receive
shares of property tax revenues from the former redevelopment project area("Taxing Entities"),which
City of South San Francisco Page 1
File Number: 17-918 Enactment Number: RES 05-2017
provides that upon approval by the Oversight Board of the sale price, and consistent with the LRPMP,
the proceeds from the sale of any of the Agency Properties will be distributed to the Taxing Entities in
accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former
Redevelopment Agency; and
WHEREAS, on February 8, 2017, the City adopted Resolution 16-2017 approving the transfer of the
Agency Properties from the Successor Agency to the City and in accordance with the requirements set
forth in the LRPMP, and on February 21, 2017, the Oversight Board adopted a resolution approving the
transfer of the Redevelopment Properties from the Successor Agency to the City; and
WHEREAS, consistent with the LRPMP and the Oversight Board resolution, the Successor Agency and
City executed and recorded grant deeds transferring the Agency Properties to the City; and
WHEREAS, the real property located at 201 Grand Avenue, 207 Grand Avenue, and 217-219 Grand
Avenue ("201 Grand") located in the City of South San Francisco, California, known as Area Parcel
Numbers (APNs) 012-316-110, 012-316-100, 012-316-090 and 012-316-080 are Agency Properties and
are subject to the provisions of the LRPMP and the Compensation Agreement; and
WHEREAS, On March 22,2017, City Council selected ROEM Development Corporation("Developer")
to develop the properties located at 201 Grand in a manner consistent with the LRPMP; and
WHEREAS, the City Council and the Successor Agency approved an Exclusive Negotiating Rights
Agreement (ENRA) between the Successor Agency, the City of South San Francisco ("City"), and
Developer in order to negotiate a disposition agreement consistent with the LRPMP; and
WHEREAS, the City has been working closely with Developer to negotiate a Purchase and Sale
Agreement("PSA")for the sale and disposition of the properties; and
WHEREAS, the City and the Developer now wish to enter into a PSA for the Purchase and Sale of 201
Grand, attached hereto and incorporated herein as Exhibit A; and
WHEREAS, because the City is obligated to dispose of the Agency Properties in accordance with the
LRPMP and to satisfy goals, objectives and purposes of the Redevelopment Plan and the Redevelopment
Dissolution Statutes, the Agency Properties are not "surplus" property of the City and are not subject to
the disposition requirements and procedures of the Surplus Lands Act (Government Code Section 54220
et seq.); and
WHEREAS, the disposition of the Properties in accordance with the LRPMP and to satisfy goals,
objectives and purposes of the Redevelopment Plan and the Redevelopment Dissolution Statutes
City of South San Francisco Page 2
File Number: 17-918 Enactment Number: RES 05-2017
constitutes a "common benefit" that may take place under authority of California Government Code
Section 37350 and/or other disposition authority deemed appropriate by the City; and
WHEREAS, approval of the PSA is considered a"project" for purposes of the California Environmental
Quality Act, Pub. Resources Code § 21000, et seq. (CEQA); and
WHEREAS, on January 28, 2015, the City Council certified an Environmental Impact Report (EIR),
State Clearinghouse number 2013102001, in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code, §§ 21000, et seq., CEQA) and CEQA Guidelines,
which analyzed the potential environmental impacts of the development within the Downtown Station
Area Specific Plan(DSASP); and
WHEREAS, on January 28, 2015, the City Council also adopted a Statement of Overriding
Considerations (SOC) in accordance with the provisions of the California Environmental Quality Act
(Public Resources Code, §§ 21000, et seq., CEQA) and CEQA Guidelines, which carefully considered
each significant and unavoidable impact identified in the EIR and found that the significant
environmental impacts are acceptable in light of the Downtown Station Area Specific Plan's economic,
legal, social,technological and other benefits; and
WHEREAS, CEQA allows for limited environmental review of subsequent projects under a program
EIR when an agency fords that a project would not create any new environmental effects beyond those
previously analyzed under a program EIR and would not require any new mitigation measures; and
WHEREAS, the development of the Property was contemplated in the DSAP EIR, and the execution of
a Purchase and Sale Agreement for development consistent with the DSAP would not result in any new
significant environmental effects or a substantial increase in the severity of any previously identified
effects beyond those disclosed and analyzed in the Downtown Station Area Specific Plan Program EIR
certified by the City Council,nor would any new mitigation measures be required; and
WHEREAS, therefore, no subsequent or supplemental environmental review is required pursuant to
CEQA Guidelines § 15162.
NOW, THEREFORE, BE IT RESOLVED that the Oversight Board for the Successor Agency to the
Redevelopment Agency of the City of South San Francisco does hereby resolve as follows:
The foregoing recitals are true and correct and made a part of this Resolution.
Finds that the proposed actions in this Resolution are consistent with the Long Range Property
Management Plan.
City of South San Francisco Page 3
File Number: 17-918 Enactment Number: RES 05-2017
Approves a final sale price of$1,200,000 as set forth in the Purchase and Sale Agreement between the
City of South San Francisco and ROEM Development Corporation for the sale and development of the
properties located at 201 Grand Avenue, 207 Grand Avenue, and 217-219 Grand Avenue attached hereto
as Exhibit A. The sale proceeds from the disposition of the properties will be distributed to the taxing
entities according to Section 5 of the Amended and Restated Master Agreement for Taxing Entity
Compensation.
Approves of the City Manager, or his designee, executing the Purchase and Sale Agreement attached
hereto as Exhibit A, and any necessary documents related to the Purchase and Sale Agreement, and take
all actions necessary to implement this intent of this Resolution, subject to approval as to form by the
City Attorney.
At a meeting of the Oversight Board to the Successor Agency to the former Redevelopment Agency on
9/19/2017, a motion was made by Reyna Farrales, seconded by Mark Addiego,that this Resolution be
approved.The motion passed.
Yes: 6 Cullen,Addiego, Christensen, Farrales, Scannell, and Friedman
Absent: 1 Krause
7/ 1
Attest by 01 • e,
ri° aM. i elli
City of South San Francisco Page 4
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
201-219 Grand Avenue
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (“this Agreement”), dated _______, 2017, for reference purposes only, is made
by and between the City of South San Francisco, a municipal corporation, (“City” or the “Seller”)
and ROEM Development Corporation, a California corporation (“Buyer”). Seller and Buyer are
collectively referred to herein as the “Parties.”
RECITALS
A. The City of South San Francisco is the owner of certain real property located in
the City of South San Francisco, California, at 201-219 Grand Avenue, known as County
Assessor's Parcel Numbers 012-316-110, 012-316-100, 012-316-090 and 012-316-080 and more
particularly described in Exhibit A attached hereto (the "Grand Property" or the “Property”
herein).
B. On June 29, 2011, the Legislature of the State of California (the “State”) adopted
Assembly Bill x1 26 (“AB 26”), which amended provisions of the State’s Community
Redevelopment Law (Health and Safety Code sections 33000 et seq) (the “Dissolution Law”),
pursuant to which the former Redevelopment Agency of the City of South San Francisco was
dissolved on February 1, 2012. The City became the Successor Agency to the Redevelopment
Agency of the City of South San Francisco (“Successor Agency”), and in accordance with the
Dissolution Law, the Successor Agency prepared a Long Range Property Management Pl an
(“LRPMP”), which was approved by a resolution of the Oversight Board for the Successor
Agency to the Redevelopment Agency of the City of South San Francisco (“Oversight Board”)
on May 21, 2015, and was approved by the Department of Finance (“DOF”) on October 1, 2015.
C. Consistent with the Dissolution Law and the LRPMP, certain real properties located
in the City of South San Francisco, that were previously owned by the former Redevelopment
Agency was transferred to the Successor Agency (“Agency Properties”). On October 18, 2016,
the City entered into an Amended and Restated Master Agreement for Taxing Entity
Compensation (“Compensation Agreement”) with the various local agencies who receive shares
of property tax revenues from the former redevelopment project area (“Taxing Entities”), which
provides that upon approval by the Oversight Board of the sale price, and consistent with the
LRPMP, the proceeds from the sale of any of the Agency Properties will be distributed to the
Taxing Entities in accordance with their proportionate contributions to the Real Property Tax Trust
Fund for the former Redevelopment Agency.
D. On February 8, 2017, the City adopted Resolution 16-2017 approving the transfer
of the Agency Properties from the Successor Agency to the City and in accordance with the
requirements set forth in the LRPMP, and on February 21, 2017, the Oversight Board adopted a
resolution approving the transfer of the Redevelopment Properties from the Successor Agency to
the City.
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E. Consistent with the LRPMP and the Oversight Board resolution, the Successor
Agency and City executed and recorded grant deeds transferring the Agency Properties to the City.
The Grand Property is one of the Agency Properties and is subject to the provisions of the LRPMP
and the Compensation Agreement.
F. The City desires to sell the Grand Property to Buyer for the construction of a high-
density, mixed-use project, including 46 residential units, nine (9) of which are required to be
below market rate units, and approximately 6,000 square feet of ground floor commercial units
(the “Grand Project”), as further described in the Grand Affordable Housing Agreement
substantially in the form attached hereto as Exhibit B (the “AHA”). Development of the Grand
Project is described and defined in the Development Agreement between the City and Buyer,
substantially in the form attached hereto as Exhibit C (the “DA”). Upon Closing, the AHA and
the DA will be recorded in the official records of San Mateo County.
G. In order to assist in the construction of affordable units, upon Closing, Seller will
provide Buyer a grant in the amount Five Hundred and Twenty Five Thousand Dollars
($525,000.00) from City Affordable Housing In-Lieu Fees, and a grant in the amount of One
Million Two Hundred and Twenty Five Thousand ($1,225,000.00) from City Affordable Housing
Bond Funds to partially finance the Project on the Grand Property (“City Grants”), as set forth in
this Agreement and the DA. The terms and conditions associated with Buyer’s use of the City
Grants after the Closing are set forth in the DA.
H. On April 4, 2017, City of South San Francisco and Agency and Buyer entered into
an Exclusive Negotiation Rights Agreement (“ENRA”) that provided the Buyer the exclusive right
to collaborate and negotiate with the City for the purpose of reaching agreement on a project
description, appropriate land uses, economic feasibility, and a definitive agreement whose terms
and conditions would govern any conveyance and development of the Property. In furtherance
thereof, Buyer submitted a deposit in the amount of Two Hundred Thousand Dollars ($200,000.00)
to City to reimburse the costs Seller would incur in preparation of this Agreement and the Purchase
and Sale Agreement for the Linden Project (“ENRA Deposit”). Upon execution of the ENRA,
City provided Buyer with copies, but not ownership, of all City owned non-privileged studies,
surveys, plans, specifications, reports, and other documents with respect to the Property that City
had in its possession or control, which had not already been provided to Buyer (“Bridging
Documents”).
I. The Grand Property and the Grand Project are fully entitled, and have obtained
planning approval from the Design Review Board, Planning Commission, Successor Agency and
City Council as well as the Oversight Board. The Grand Project entitlements include Planning
Project: P15-0014; Use Permit UP15-0003; Design Review DR15-0016 and Parking Exception
PE15-0001 (collectively herein the “Project Approvals”). Buyer acknowledges and agrees that
execution of this Agreement by Agency does not constitute approval for the purpose of the
issuance of building permits for the Project, does not limit in any manner the discretion of Agency
in such approval process if any, and does not relieve Buyer from the obligation to apply for and
obtain any, if necessary, entitlements, approvals, and permits, for construction of the Grand Project
on the Grand Property including without limitation, the approval of architectural plans, the
issuance of any certificates regarding historic resources required in connection with the Project (if
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any), and any required environmental review in the event Buyer seeks revisions to any of the above
Project Approvals.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth
above and the Exhibits attached to this Agreement are each incorporated into the body of this
Agreement as if set forth in full.
2. PURCHASE AND SALE.
2.1. Subject to the terms and conditions set forth herein, Seller agree to sell
the Property to Buyer, and Buyer hereby agrees to acquire the Property from Seller.
2.2. The purchase price for the Property to be paid by Buyer to City is One
Million Two Hundred Thousand Dollars ($1,200,000.00), payable in all cash at Closing. Seller
shall distribute the net sale proceeds to the taxing entities pursuant to Section 5 of the
Compensation Agreement.
3. ESCROW.
3.1. Escrow Account. This sale shall be consummated through an “Escrow”
established with Chicago Title Insurance Company; Escrow Agent: Sherri Keller, 675 N. First
Street, San Jose, CA 95112 (“Escrow Holder”). Escrow Holder shall perform all escrow and
title services in connection with this Agreement.
3.2. Opening of Escrow; Effective Date. Within three (3) business days of the
date that Seller has obtained approval of this executed Agreement by the City Council, approval
of the sale price by the Oversight Board, and approval of the executed DA and the executed
AHA by the City Council, Seller shall open an escrow account with Escrow Holder by depositing
this executed Agreement, the executed DA and the executed AHA into Escrow. The date the
executed Agreement, DA and AHA are received by Escrow Holder, as established and confirmed
by Escrow Holder, shall be deemed the “Effective Date.” By such deposit Escrow Holder is
authorized and instructed to act in accordance with the provisions of this Agreement, which
Agreement shall constitute Escrow Holder’s escrow instructions.
3.3. Buyer’s Deposit; Application of Prior ENRA Deposit. Within three (3)
business days of the Effective Date, Seller will deposit the one half of the remaining, unused,
portion of the ENRA Deposit into Escrow, and Buyer will deposit the di fference between the
amount deposited by Seller and $100,000.00, so that the total deposit held in Escrow for the
Grand Property as Buyer’s deposit is One Hundred Thousand Dollars ($100,000.00) (the
“Deposit”). Note that the other one half of the remaining, unused, portion of the ENRA Deposit
will be deposited into the Linden Property Escrow. The Deposit is non-refundable, except in the
event of a Seller breach, and is applicable toward the Purchase Price.
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3.4. Seller’s Administration Fee. Within three (3) business days of the
Effective Date, Buyer shall deposit funds in the amount of Fifteen Thousand Dollars
($15,000.00) with Escrow Holder (the “Administration Fee”). Escrow Holder shall
immediately release the Administration Fee to Seller, and throughout the term of this Agreement,
Seller may draw upon the Administration Fee to compensate it for the cost of reasonably
necessary third-party assistance, legal fees and staff time incurred by Seller in administering the
sale of the Property. Seller will notify Buyer of the identify, qualifications, scope of work and
budget for any third party consultants that will be paid for from the Administration Fee, prior to
authorizing work under any such third party contract, and will provide Buyer a written account
of the Administration Fee, including copies of any third party invoices under approved scopes
of work (excluding any information subject to attorney client privilege) upon Buyer’s request.
All costs and fees shall be charged at City’s actual cost and all staff time shall be charged at
City’s standard rate. Seller shall deposit the Administration Fee in a separate interest bearing
account of Seller and any interest, when received by Seller, will become part of the
Administration Fee. City shall account for all deposits, interest earnings and withdraws from
the Administration Fee consistent with all reporting requirements of the State of California
Department of Finance. The unused portion of the Administration Fee, if any, shall be credited
against the Purchase Price at Closing, or returned to Buyer if this Agreement is terminated, for
any reason, prior to Closing.
4. APPROVAL OF CONDITION OF TITLE; PROPERTY DISCLOSURE
REQUIREMENTS.
4.1. Condition of Title/Preliminary Title Report. At the Closing, Seller shall
convey title to the Property to Buyer by grant deed in Escrow Holder’s standard form (the “Grant
Deed”). As a condition to Buyer’s obligation to close escrow hereunder, title to the Property to be
conveyed to Buyer shall be subject only to the Permitted Exceptions (as defined below).
Promptly following the execution of this Agreement, Seller shall deliver or cause the
Escrow Holder to deliver to Buyer a preliminary title report issued by Escrow Holder and dated
within ten (10) days of the mutual execution of this Agreement (the “Preliminary Title Report”)
showing the state of title to the Property, together with copies of all matters shown as exceptions
therein. Buyer may also obtain a survey or updated survey of the Property (the “Survey”), at
Buyer's sole cost and expense. Buyer shall have the right within the first twenty (20) days
following the Effective Date (the “Title Review Period”), to give Seller written notice (“Buyer’s
Title Notice”) of Buyer’s disapproval of any title exceptions or matters set forth in the Title Report
or Survey, or any other matters affecting Title to the Property (collectively, the “Title
Objections”). If Buyer timely gives the Buyer’s Title Notice, Seller shall elect, within fifteen (15)
days following receipt of Buyer’s Title Notice, by written notice given to Buyer, whether to
remove or delete from the title to be conveyed to Buyer prior to the Closing any or all of the Title
Objections. If Buyer fails to timely give the Buyer’s Title Notice, or if Seller fai ls to make such
election within the aforementioned fifteen (15) day period, then Seller shall be deemed to have
elected not to remove any Title Objections. Upon receipt of Seller’s written notice (or deemed
election not to remove the Title Objections), Bu yer may elect, within the Title Review Period, to
either (i) terminate this Agreement, in which event all rights and obligations hereunder (except for
those that expressly survive the termination of this Agreement) shall cease and the Deposit shall
be promptly returned to Buyer, or (ii) waive any title or survey objections it may have, without a
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reduction of the Purchase Price. If Buyer fails to make an election referred to in the immediately
preceding sentence, by written notice to Seller within the Title Review Period, then Buyer shall be
deemed to have elected the option to terminate this Agreement as set forth in clause (i) above.
As used herein, “Permitted Exceptions” shall mean: (i) non-delinquent liens for
real estate taxes and assessments; (ii) any other liens, easements, encumbrances, covenants,
conditions and restrictions of record described in the Preliminary Title Report, except those that
Seller has expressly agreed to remove pursuant to Paragraph 5(b) above; provided, however, that
the lien of any deed of trust shall not be a Permitted Exception in any event; (iii) the DA; (iv) the
AHA; and (v) local, state and federal laws, ordinances or governmental regulations including, but
not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect
relating to the Property. Seller will provide Buyer with standard owner affidavits regarding
tenants, work on site, etc. if applicable as may reasonably be required by the Title to permit Title
Company’s issuance of an ALTA title insurance policy.
Delivery of title in accordance with the foregoing shall be evidenced by the
willingness of the Escrow Holder to issue, at Closing, at Buyer’s cost, an ALTA Owner’s Policy
of Title Insurance in the amount of the Purchase Price showing fee simple title to the Property
vested in Buyer (or its assignee), subject only to the Permitted Exceptions and the standard
exclusions to coverage shown on such Policy of Title Insurance (the “Title Policy”).
4.2 Environmental and Natural Hazards Disclosure. California Health &
Safety Code section 25359.7 requires owners of non-residential real property who know, or have
reasonable cause to believe, that any release of hazardous substances are located on or beneath
the real property to provide written notice of same to the buyer of real property. Other applicable
laws require Seller to provide certain disclosures regarding natural hazards affecting the
Property. During the period of time between the execution of the ENRA and the execution of
this Agreement, Seller shall make all necessary disclosures required by law
5. BUYER’S SCHEDULE OF PERFORMANCE
5.1. Buyer’s Schedule of Performance. Subject to Force Majeure Delays (as
defined in Section 8.4), Buyer shall complete the following milestones in furtherance of the
Closing, in accordance with the following schedule:
Deadline Milestone
(a) Within two (2)
months after
Effective Date
Buyer shall have completed 50% of the Construction Drawings and
submitted the Financial Proforma to Seller
(b)
Within four (4)
months after
Effective Date
Buyer shall have completed all Final Plans and submitted 100%
construction drawings to the City for building permits, and submitted an
Updated Proforma to Seller
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Deadline Milestone
(c)
Within five (5)
months after
Effective Date
Buyer shall have secured Construction Financing and executed a contract
with a general contractor for construction of the Project in accordance with
the final plans
(d)
Within six (6)
months after
Effective Date
Buyer and Seller shall have satisfied (or waived in writing) all
contingencies to Closing set forth in this Agreement, and be prepared to
Close Escrow
6. CLOSING AND PAYMENT OF PURCHASE PRICE
6.1. Closing. The close of escrow (the “Closing” or “Close of Escrow”) shall
be deemed to occur on the date the Grant Deed is recorded and Buyer’s funds are released to
Seller and the City Grants are released to Buyer, which shall occur within ten (10) days of the
date that all of Buyer’s contingencies to Closing set forth in Section 6.2 and Seller’s
contingencies to Closing set forth in Section 6.3 have been satisfied, or waived in writing, or
such other date that the Parties agree in writing, each in their sole discretion.
6.2. Buyer’s Conditions to Closing. Buyer's obligation to purchase the
Property is subject to the satisfaction of all of the following conditions or Buyer's written waiver
thereof (in Buyer’s sole discretion) on or before the Closing Date:
(a) Buyer has approved the condition of the Property and Waived any
further Due Diligence Contingency. Buyer has used the period of time between the execution of
the ENRA and the date of the execution of this Agreement as its “Due Diligence Contingency
Period” to complete physical inspections of the Property and due diligence related to the purchase
of the Property. Pursuant to paragraph 9 of the ENRA, Seller has made available to Buyer for
review or copying at Buyer’s expense all non-privileged studies, surveys, plans, specifications,
reports, and other documents with respect to the Property that Seller has in its possession or control,
which have not already been provided. Buyer understands that notwithstanding the delivery by
City to Buyer of any materials, including, without limitation, third party reports, Buyer has relied
entirely on Buyer’s own experts and consultants and its own independent investigation in
proceeding with the acquisition of the Property. Studies or documents prepared by Seller and its
agents solely for the purpose of negotiating the terms of the Purchase Agreement were not required
to be provided by Seller to Buyer. Buyer acknowledges that it has completed its due diligence
with respect to the physical condition of the Property and is satisfied with respect to such and will
provide Seller further written evidence of its acceptance of the condition of the property and its
wavier of any due diligence contingency prior to Closing.
(b) Seller have performed all obligations to be performed by Seller
pursuant to this Agreement.
(c) Seller’s representations and warranties herein are true and correct in
all material respects as of the Closing Date.
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(d) Buyer has approved the Title Report, and Title Company is
irrevocably committed to issue a ALTA Extended Title Policy to Buyer upon recordation of the
Grant Deed and effective as of the Closing Date, insuring title to Buyer in the full amount of the
Purchase Price, subject only to the Permitted Exceptions.
(e) Seller has deposited the City Grants into Escrow with instructions
to release the City Grants to Buyer, only upon the Closing.
(f) The Property is free of all occupants, licensees, tenants, and is
prepared to be delivered “vacant” to Buyer at Closing.
(g) Buyer has secured binding commitments, subject only to
commercially reasonable conditions, for all funding necessary for the successful and feasible
purchase of the Property and completion of the Project.
(h) Thirty (30) days prior to Closing, Buyer’s construction loan, if any,
for the Project shall have closed, or shall be ready to close concurrently with the Closing.
(i) Five (5) days before closing, Buyer shall have obtained approval of
Buyer’s Final Proforma from City, and shall have deposited the approved Final Proforma into
Escrow.
(j) Buyer has completed all Final Plans and construction drawings and
has obtained all building and other permits from the City and other issuing agencies required to
construct the Project pursuant to all Final Plans and as required and necessary for the Buyer to
satisfy the obligations set forth in the DA and AHA.
(k) Buyer shall have executed a construction contract with a qualified
and reputable general contractor for the Project, which construction contract shall be enforceable,
contain a “prevailing wage” requirement, and require contractor to commence construction
promptly upon issuance of the final building permit, and shall have deposited a copy thereof into
Escrow five (5) days before Closing.
(l) Buyer or Buyer’s General Contractor shall obtain, or cause to be
obtained, and deliver to Seller the following bonds: (a) a labor and materials/payment bond or
bonds for the general contract, which shall be equal to one hundred percent (100%) of all costs of
construction to be incurred pursuant to the general contract, and (b) a performance bond or bonds
for the general contractor in an amount equal to one hundred percent (100%) of all costs to be
incurred pursuant to the general contract (collectively, the "Bonds"). The Bonds shall be in
commercially reasonable form and substance, and name Seller as obligee.
(m) Buyer’s General Contractor shall have submitted to City’s Building
Department for City’s approval, detailed final construction plans for construction of the Project on
the Property (the “Construction Plans”). As used herein “Construction Plans” means the final
construction documents that are in conformance with the Bridging Construction Documents
(“BCDs”) and Owner’s Minimum Requirements (“OMRs”) and upon which Buyer and Buyer’s
contractors shall rely in constructing the Project (including the landscaping, parking, and common
areas) and shall include, without limitation, the site development plan, final architectural drawings,
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landscaping, exterior lighting and signage plans and specifications, materials specifications, final
elevations, and building plans and specifications. The Construction Plans shall be based upon the
scope of development set forth in the BCDs and upon the Project Approvals, and shall not
materially deviate therefrom without the express written consent of Seller. Provided the
Construction Plans are consistent with the BCDs, approval of the Construction Plans by City shall
be deemed approval thereof by Seller.
(n) Buyer is prepared to deliver a guaranty of completion of the Project
in accordance with the terms of this Agreement, substantially in the form of Exhibit D
("Completion Guaranty") attached hereto.
6.3. Seller’s Conditions to Closing. The Close of Escrow and Seller’s
obligation to sell and convey the Property to Buyer are subject to the satisfaction of the following
conditions or Seller’s written waiver (in Seller’s sole discretion) of such conditions on or before
the Closing Date or any sooner date stated below:
(a) Buyer has performed all obligations to be performed by Buyer
pursuant to this Agreement before Closing Date.
(b) Buyer's representations and warranties set forth herein are true and
correct in all material respects as of the Closing Date.
(c) Buyer’s Financing Commitments. Forty-five (45) days prior to
Closing, Buyer has provided Seller written confirmation, acceptable to Seller, which approval shall
not be unreasonably withheld, that Buyer has obtained financing commitments for the acquisition
and construction financing for the acquisition and development of the Property:
(d) Construction Loan. Thirty (30) days prior to Closing, Buyer’s
construction loan, if any, for the Project shall have closed, or shall be ready to close concurrently
with the Closing.
(e) Proforma. Thirty (30) days before closing, Buyer shall have
obtained approval of Buyer’s Final Proforma from City, and shall have deposited the approved
Final Proforma into Escrow.
(f) Buyer shall have completed all Final Plans and construction
drawings and has obtained all building and other permits from the City and other issuing agencies
required to construct the Project pursuant to all Final Plans and as required and necessary for the
Buyer to satisfy the obligations set forth in the DA and AHA.
(g) Buyer shall have executed a construction contract with a qualified
and reputable general contractor for the Project, which construction contract shall be enforceable,
contain a “prevailing wage” requirement, and require contractor to commence construction
promptly upon issuance of the final building permit, and shall have deposited a copy thereof into
Escrow five (5) days before Closing.
(h) Buyer or Buyer’s General Contractor shall have obtained and
delivered to Seller the following bonds: (a) a labor and materials/payment bond or bonds for the
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general contract, which shall be equal to one hundred percent (100%) of all costs of construction
to be incurred pursuant to the general contract, and (b) a performance bond or bonds for the general
contractor in an amount equal to one hundred percent (100%) of all costs to be incurred pursuant
to the general contract (collectively, the "Bonds"). The Bonds shall be in commercially reasonable
form and substance and shall name Seller as obligee.
(i) Construction Plans. Buyer’s General Contractor shall have
submitted to City’s Building Department for City’s approval, detailed final construction plans for
construction of the Project on the Property (the “Construction Plans”). As used herein
“Construction Plans” means the final construction documents that are in conformance with the
Bridging Construction Documents (“BCDs”) and Owner’s Minimum Requirements (“OMRs”)
and upon which Buyer and Buyer’s contractors shall rely in constructing the Project (including the
landscaping, parking, and common areas) and shall include, without limitation, the site
development plan, final architectural drawings, landscaping, exterior lighting and signage plans
and specifications, materials specifications, final elevations, and building plans and specifications.
The Construction Plans shall be based upon the scope of development set forth in the BCDs and
upon the Project Approvals, and shall not materially deviate therefrom without the express written
consent of Seller. Provided that the Construction Plans are consistent with the BCDs, approval of
the Construction Plans by City shall be deemed approval thereof by Seller.
(j) Buyer’s Completion Guaranty. Buyer has delivered its Completion
Guaranty to Escrow Holder.
6.4. Closing Deliveries.
6.4.1 Delivery of Documents and Closing Funds. At or prior to Closing,
Seller and Buyer shall each deposit such other instruments as are reasonably required by the Title
Company or otherwise required to close the escrow and consummate the conveyance of the
Property in accordance with the terms hereof, including but not limited to the following:
6.4.1.1 Deliveries by Seller. At or before Closing, Seller shall
deposit the following into escrow: (i) one (1) original executed and acknowledged Grant Deed;
(ii) one (1) duly executed non-foreign certification for the Property in accordance with the
requirements of Section 1445 of the Internal Revenue Code of 1986, as amended; (iii) one (1) duly
executed California Form 593-W Certificate for the Property or comparable non-foreign person
affidavit to satisfy the requirements of California Revenue and Taxation Code Section 18805(b)
and 26131; (iv) title to all Bridging Documents; and (v) funds in the total amount of One Million
Seven Hundred Fifty Thousand Dollars ($1,750,000.00) for the City Grants.
6.4.1.2 Condition to disbursement of City Grants. City’s obligation
to provide Seller with City Grants in the total amount of One Million Seven Hundred Fifty
Thousand Dollars ($1,750,000.00) at the Closing Date is conditioned upon Close of Escrow. If the
Closing does not occur, for any reason whatsoever, the City has no obligation to deliver the City
Grants to Buyer.
6.4.1.3 Deliveries by Buyer. No less than five (5) business days
prior to the close of escrow, Buyer shall deposit into escrow: (i) immediately available funds
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which together with the Deposit plus interest thereon, if any, is equal to: a) the Purchase Price as
adjusted by any prorations between the Parties; (b) all escrow fees (including the costs of preparing
documents and instruments) and recording fees and all transfer taxes; (c) the cost of the Title
Policy and title report costs (d) any other costs that are the responsibility of Buyer under this
Agreement; (ii) a fully executed Completion Guarantee executed by Buyer; and, (iii) one (1)
original executed Preliminary Change of Ownership Report for the Property.
6.4.2. Escrow Instructions. This Agreement constitutes the joint escrow
instructions (JEI) of Seller and Buyer with respect to the conveyance of the Property to Buyer, and
the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this
Agreement. The parties shall use reasonable good faith efforts to close the escrow for the
conveyance of the Property in the shortest possible time. All funds received in the escrow shall be
deposited in interest-bearing accounts for the benefit of the depositing Party in any state or national
bank doing business in the State of California. All disbursements shall be made by check or wire
transfer from such accounts. If, in the opinion of either Party, it is necessary or convenient in order
to accomplish the Closing, such Party may provide supplemental escrow instructions; provided
that if there is any inconsistency between this Agreement and the supplemental escrow
instructions, then the provisions of this Agreement shall control. The Closing shall take place as
set forth in Section 6.4.3 below. Escrow Agent is instructed to release Seller’s and Buyer’s escrow
closing statements to the respective parties.
6.4.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Pay and charge Buyer for the premium of the Title Policy, including any
endorsements requested by Buyer.
(b) Pay and charge Buyer for escrow fees, charges, and costs as provided in
Section 6.4.1.2.
(c) Disburse to Seller the Purchase Price, less Seller’s share of any escrow
fees, costs and expenses, and record the Grant Deed when both the Buyer Conditions Precedent
and Seller Conditions Precedent have been fulfilled or waived in writing by Buyer and Seller, as
applicable. Immediately following recordation of the Grant Deed, Escrow Agent shall record the
DA and AHA.
(d) Disburse to Buyer the City Grants.
(e) Do such other actions as necessary, including obtaining and issuing the
Title Policy, to fulfill its obligations under this Agreement.
(f) Direct Seller and Buyer to execute and deliver any instrument, affidavit,
and statement, and to perform any act, reasonably necessary to comply with the provisions of
FIRPTA, if applicable, and any similar state act and regulations promulgated thereunder.
(g) Prepare and file with all appropriate governmental or taxing authorities
uniform settlement statements, closing statements, tax withholding forms including IRS 1099 -S
forms, and be responsible for withholding taxes, if any such forms are provided for or required by
law.
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(h) Deliver to Buyer the certificate of title to those Bridging Documents for
which Buyer has previously requested transfer of ownership from Seller to Buyer, the Non-Foreign
Affidavit, the California Certificate and the original recorded grant deed;
6.4.4 Pro-Rations. At the close of escrow, the Escrow Agent shall make the
following prorations: (i) property taxes will 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 Seller reimbursement for
the unapplied portion of the Administrative Fee.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
7.1. Seller’s Representations, Warranties. In addition to the representations,
warranties and covenants of Seller contained in the other sections of this Agreement, Seller
hereby represents, warrants and covenants to Buyer that the statements below in this Section 7.1
are each true and correct as of the Closing Date provided however, if to Seller’s actual knowledge
any such statement becomes untrue prior to Closing, Seller will notify Buyer in writing and
Buyer will have three (3) business days thereafter to determine if Buyer wishes to proceed with
Closing. If Buyer determines it does not wish to proceed, then the terms of Section 8 will apply.
As used herein, the term “to Seller’s best knowledge” shall mean the knowledge of
:_______________, with duty of inquiry.
(a) Authority. Seller is a public agency, lawfully formed, in existence
and in good standing under the laws of the State of California. Seller has the full right, capacity,
power, authority, and all necessary approvals to enter into and carry out the terms of this
Agreement. This Agreement has been duly executed by Seller, and upon delivery to and execution
by Buyer is a valid and binding agreement of Seller.
(b) Encumbrances. Other than the approval and recordation of the DA
and AHA at Closing, Seller has not alienated, encumbered, transferred, mortgaged, assigned,
pledged, or otherwise conveyed its interest in the Property or any portion thereof, nor entered into
any Agreement to do so, and there are no liens, encumbrances, mortgages, covenants, conditions,
reservations, restrictions, easements or other matters affecting the Property, except for the
Permitted Exceptions. Seller will not, directly or indirectly, alienate, encumber, transfer, mortgage,
assign, pledge, or otherwise convey its interest prior to the Close of Escrow, as long as this
Agreement is in force.
(c) There are no agreements affecting the Property except those which
have been disclosed by Seller. There are no agreements which will be binding on the Buyer or the
Property after the Close of Escrow.
(d) Condemnation. To Seller’s best knowledge, there are not presently
pending any eminent domain or condemnation actions against the Property or any part thereof;
and Seller has not received written notice of any eminent domain or condemnation actions being
contemplated that would affect the Property or any part thereof.
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(e) Claims. To Seller’s best knowledge, Seller has not received written
notice of any claims or of any legal actions or proceedings in any court pending against the
Property or against Seller that may affect the Property or Seller’s ability to consummate the
transaction contemplated in this Agreement. To Seller’s best knowledge, Seller has not received
any written notice that the condition of the Property is in violation of any laws or regulations or
the requirements of any insurance underwriters or policies.
(f) Lease; Occupancy Rights; Superior Rights. There are no leases,
occupancy rights, rights of first refusal or rights of first offer that affect the Property. Seller will
deliver the property vacant and free of any lease agreements or occupancy rights prior to or at close
of escrow.
(g) No Conflict. The execution and delivery of this Agreement, and the
sale and conveyance of the Property contemplated hereby, do not and will not (a) violate the terms
of any order, writ or decree of any court or judicial or regulatory authority or body binding upon
Seller, (b) conflict with or result in a breach of any condition or provision or constitute a default
under or pursuant to the terms of any contract, mortgage, lien, lease, agreement, debenture or
instrument to which Seller is a party, or which is or purports to be binding upon Seller or upon the
Property, or (c) to Seller’s best knowledge, violate any rule, regulation, statute or law applicable
to Seller.
(h) Historical Designation of the Property. To Seller’s best knowledge,
Seller has not received written notice of any pending applications for or current designations of
the Property as a historic building or landmark.
(i) Property Documents. All Bridging Documents provided by Seller
to Buyer are true, correct and complete copies of all documents and information relating to the
Property in Seller’s possession and control. To the extent that Seller’s Bridging Documents were
prepared by third parties or for third parties, including a previous potential buyer of the Property,
Seller represents to Buyer that Seller has the right to provide such materials to Buyer and is not
prohibited by contract or otherwise from disclosing such materials to Buyer, but Seller does not
make any representation about Buyer’s ability or inability to use or rely on any such materials, or
the accuracy or completeness thereof. Seller shall not be liable to Buyer or any other party for any
detrimental reliance on such third-party materials.
(j) Environmental Laws. To Seller’s best knowledge, the Property is
not in violation of any federal, state, local or administrative agency ordinance, law, rule, regulation,
order or requirement relating to environmental conditions or Hazardous Material (“Environmental
Laws”). To Seller’s best knowledge, Seller has not used, manufactured, generated, treated, stored,
disposed of, or released any Hazardous Materials on, under or about the Property or transported
any Hazardous Materials over the Property except in compliance with Environmental Laws. For
the purposes hereof, “Hazardous Material” shall mean any substance, chemical, waste or other
material which is listed, defined or otherwise identified as “hazardous” or “toxic” under any
federal, state, local or administrative agency ordinance or law, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et
seq. and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., or any
regulation, order, rule or requirement adopted thereunder, as well as any formaldehyde, urea,
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polychlorinated biphenyls, petroleum, petroleum product or by-product, crude oil, natural gas,
natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel or mixture thereof, radon,
asbestos, and “source,” “special nuclear” and “by-product” material as defined in the Atomic
Energy Act of 1985,42 U.S.C. §§ 3011 et seq.
7.2. Seller’s Covenants. From the Effective Date, through the Closing, Seller
covenants as follows:
(a) Seller shall terminate all maintenance or service contracts and
utilities relating to and servicing the Property, as of the Closing Date.
(b) Seller shall remove all fixtures, furnishings and equipment and
personal property (“FF&E”) that is not adhered to or an integral improvement to the Property as
of the Closing Date, so that the Property is delivered in a vacant, broom-clean condition with all
trash and personal effects removed.
(c) Seller shall maintain and operate the Property in its present state of
repair and in substantially the same condition as on the Effective Date.
(d) Seller shall pay all liens, encumbrances, taxes, penalties, interest and
assessments on the Property, and perform all covenants thereunder, before they become delinquent
or a default would occur thereunder.
(e) Seller shall maintain in effect all insurance policies relative to the
Property in full force and effect.
(f) Seller shall promptly notify Buyer if any of the representations and
warranties set forth in this Agreement become untrue prior to the Closing Date.
The truth and accuracy of each of the representations and warranties, and the
performance of all covenants of Seller contained in this Agreement are conditions precedent to
Buyer’s obligation to proceed with the Closing hereunder. The foregoing representations and
warranties shall survive the expiration, termination, or close of escrow of this Agreement and shall
not be deemed merged into the deed upon closing.
7.3. Buyer’s Representations and Warranties. In addition to the
representations, warranties and covenants of Buyer contained in the other sections of this
Agreement, Buyer hereby represents, warrants and covenants to Seller that the statements below
in this Section 7.3 are each true as of the Effective Date, and, if to Buyer’s actual knowledge any
such statement becomes untrue prior to Closing, Buyer shall so notify Seller in writing and Seller
shall have at least three (3) business days thereafter to determine if Seller wishes to proceed with
Closing.
(a) Buyer has the full right, capacity, power and authority to enter into
and carry out the terms of this Agreement. This Agreement has been duly executed by Buyer, and
upon delivery to and execution by Seller shall be a valid and binding agreement of Buyer.
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(b) Buyer is not bankrupt or insolvent under any applicable federal or
state standard, has not filed for protection or relief under any applicable bankruptcy or creditor
protection statute, and has not been threatened by creditors with an involuntary application of any
applicable bankruptcy or creditor protection statute.
(c) Buyer accepts and acknowledges that after the Closing, the Property
will be subject to the DA and AHA, which will be recorded against the Property at Closing.
The truth and accuracy of each of the representations and warranties, and the
performance of all covenants of Buyer contained in this Agreement are conditions precedent to
Seller’s obligation to proceed with the Closing hereunder.
7.4. Property Sold, “AS IS”. Buyer specifically acknowledges that the Seller
is selling the Property on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis and that,
subject to Seller's representations, warranties, covenants and obligations set forth in this
Agreement, and all exhibits attached hereto and incorporated herein, and any obligations arising
under applicable law, Buyer is not relying on any representations or warranties of an y kind
whatsoever, express or implied, from Seller, or its employees, appointed or elected officials,
agents, or brokers as to any matters concerning the Property. The Seller makes no
representations or warranties as to any matters concerning the Property, including without
limitation: (i) the quality, nature, adequacy and physical condition of the Property, (ii) the
quality, nature, adequacy, and physical condition of soils, geology and any groundwater, (iii) the
existence, quality, nature, adequacy and physical condition of utilities serving the Property, (iv)
the development potential of the Property, and the Property's use, habitability, merchantability,
or fitness, suitability, value or adequacy of the property for any particular purpose, (v) except as
otherwise provided in this Agreement, the zoning or other legal status of the Property or any
other public or private restrictions on use of the Property, (vi) the compliance of the Property or
its operation with any Environmental Laws, covenants, conditions and restrictions of any
governmental or quasi-governmental entity or of any other person or entity, (vii) the presence or
removal of Hazardous Materials, substances or wastes on, under or about the Property or the
adjoining or neighboring property; (viii) the quality of any labor and materials used in any
improvements on the Property, (ix) the condition of title to the Property, (x) the leases, service
contracts, or other agreements affecting the Property, or (xi) the economics of the operation of
the Property.
8. DEFAULT, REMEDIES, TERMINATION.
8.1. Default Remedies – General. Failure by either Party to perform any
action or covenant required by this Agreement within sixty (60) days following receipt of written
Notice from the other Party specifying the failure shall constitute a “Default” under this
Agreement; provided, however, that if the failure to perform cannot be reasonably cured within
such sixty (60) day period, a Party shall be allowed additional time as is reasonably necessary to
cure the failure so long as such Party commences to cure the failure within the sixty (60) day
period and thereafter diligently prosecutes the cure to completion.
8.2. Default.
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8.2.1 Remedies.
8.2.1.1 Default by Buyer; Seller’s Remedies. Upon the occurrence
of an uncured Default by Buyer, Seller’s remedies shall be limited to (i) liquidated damages
pursuant to Section 8.2.2 and (ii) termination of this Agreement pursuant to Section 8.3.
8.2.1.2 Default by Seller; Buyer’s Remedies. Upon the occurrence
of a Default by Seller under this Agreement, Buyer’s remedies shall be limited to obtaining specific
performance or injunctive relief, or terminating this Agreement, and in either event, return of the
Deposit and any unused portion of the Administrative Fee.
8.2.2 Liquidated Damages. SUBJECT TO NOTICE AND EXPIRATION
OF APPLICABLE CURE PERIODS AND ANY PERMITTED EXTENSIONS OF TIME AS
PROVIDED IN THIS AGREEMENT, IF IN THE EVENT OF A BUYER DEFAULT AS SET
FORTH IN 8.2.1.1, SELLER WILL SUFFER DAMAGES AND THAT IT IS IMPRACTICABLE
AND INFEASIBLE TO FIX THE ACTUAL AMOUNT OF SUCH DAMAGES. THEREFORE,
CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF TH IS
AGREEMENT, IN THE EVENT OF AN UNCURED DEFAULT, BUYER, WITHIN THIRTY
(30) DAYS FOLLOWING SELLER’S WRITTEN DEMAND THEREFOR, SHALL TURN
OVER ALL REPORTS AND PLANS IN THE BUYER’S ACTUAL OR CONSTRUCTIVE
POSSESSION THAT HAVE BEEN PREPARED BY AND FOR BUYER RELATED TO THE
PROJECT AND THE PROPERTY (WITH THE EXCEPTION OF BUYER’S INTELLECTUAL
PROPERTY, CONFIDENTIAL FINANCIAL INFORMATION, AND ANY INFORMATION
SUBJECT TO LEGAL PRIVILEGE) (THE “MATERIALS”). THE BUYER’S DEPOSIT AND
MATERIALS SHALL SERVE AS LIQUIDATED DAMAGES TO THE SELLER FOR A
DEFAULT SPECIFIED IN SECTION 8.2.1.1. THE VALUE OF THE BUYER’S DEPOSIT AND
MATERIALS CONSTITUTES A REASONABLE ESTIMATE OF THE DAMAGES THAT
THE SELLER WOULD INCUR IN THE EVENT OF A DEFAULT. RETENTION OF THE
BUYER’S DEPOSIT, AND MATERIALS SHALL BE THE SELLER’S SOLE AND
EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A DEFAULT A DEFAULT
SPECIFIED IN SECTION 8.2.1.1, AND THE SELLER WAIVES ANY AND ALL RIGHT TO
SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER, INCLUDING WITHOUT
LIMITATION, SPECIFIC PERFORMANCE. THE LIQUIDATED DAMAGES PROVIDED
FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE
MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE SELLER PURSUANT TO
SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. SELLER WAIVES
THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. BY PLACING ITS
INITIALS BELOW, BUYER AND SELLER SPECIFICALLY CONFIRMS THE ACCURACY
OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT OF
LIQUIDATED DAMAGES AGREED UPON, AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT
WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS: _________ ______________
SELLER BUYER
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8.3. Termination. This Agreement may be terminated by the Party for whom
a condition is intended to benefit: (i) if there is an uncured Default, after notice from the Party
not in default and expiration of all cure periods, (ii) if there is a failure of an express Buyer
Contingency to Closing (Section 6.2) or Seller Contingency to closing (6.3) (which is not waived
by the Party whom the condition benefits) by timely notice from the Party whom the condition
benefits, (iii) a representation or warranty of a Party becomes untrue prior to Closing under
Section 7.1 or 7.3 (which is not waived by the Party whom the condition benefits), or Seller
cannot satisfy a covenant to Closing set forth in Section 7.3 , (iv) upon mutual written consent
of the Parties, each in its sole discretion. Upon termination, the Parties will also cooperate to
record a notice of termination or quitclaim deed.
8.4 Force Majeure Delay. All obligations in this Agreement shall not be deemed
to be in default, all performance and other dates specified in those sections shall be extended,
where delays are due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; litigation and arbitration, including court delays; legal challenges
to this Agreement, legal challenges to the Project Approvals, or legal challenges to any other
approval required from any public agency other than the Seller for the Project, or any initiatives
or referenda regarding the same; environmental conditions, pre-existing or discovered, delaying
the construction or development of the Property or any portion thereof; unusually severe weather
but only to the extent that such weather or its effects (including, without limitation, dry out time)
result in delays that cumulatively exceed thirty (30) days for every winter season occurring after
commencement of construction of the Project; acts or omissions of the other Party; or acts or
failures to act of any public or governmental agency or entity (except that acts or failures to act of
Seller shall not excuse performance by Seller); moratorium; or a Severe Economic Recession (each
a “Force Majeure Delay”). An extension of time for any such cause shall be for the period of the
enforced delay and shall commence to run from the time of the commencement of the cause, if
notice by the Party claiming such extension is sent to the other Party within sixty (60) days of the
commencement of the cause. If notice is sent after such sixty (60) day period, then the extension
shall commence to run no sooner than sixty (60) days prior to the giving of such notice. Buyer’s
inability or failure to obtain financing or otherwise timely satisfy shall not be deemed to be a cause
outside the reasonable control of the Buyer and shall not be the basis for an excused delay unless
such inability, failure or delay is a direct result of a Severe Economic Recession. “Severe
Economic Recession” means a decline in the monetary value of all finished goods and services
produced in the United States, as measured by initial quarterly estimates of United States Gross
Domestic Product (“GDP”) published by the United States Department of Commerce Bureau of
Economic Analysis (and not subsequent monthly revisions), lasting more than four (4) consecutive
calendar quarters. Any quarter of flat or positive GDP growth shall end the period of such Severe
Economic Recession.
9. BROKERS. Seller represents that no real estate broker has been retained by Seller
in the sale of the Property or the negotiation of this Agreement. Buyer represents that no real estate
broker has been retained by Buyer in the procurement of the Property or negotiation of this
Agreement. Neither Seller nor Buyer shall pay or be liable for any commissions or brokerage fees
for the sale of the Property. Buyer and Seller shall indemnify, hold harmless and defend each other
from any and all claims, actions and liability for any breach of the preceding sentence, and any
commission, finder’s fee, or similar charges arising out of Buyer’s or Seller’s conduct.
17
10. ASSIGNMENT. Buyer may not assign its rights or delegate its duties under this
Agreement without Seller’s prior written consent, which may be withheld in Seller’s sole
discretion, except for an assignment to a “Buyer Permitted Transferee”, set forth in subsections
(a)-(c) below, which shall not require Seller’s consent under this Section 10 (each a “Buyer
Permitted Transferee”):
(a) Any transfer for financing purposes to secure the funds necessary for construction
and/or permanent financing of the Project;
(b) An assignment of this Agreement to an Affiliate of Buyer;
(c) A special purpose entity created by Buyer for the development of the Grand
Property to serve as the ownership entity for the Project.
For the purposes of this Section 10, “Affiliate of Buyer” means an entity or person that is directly
or indirectly controlling, controlled by, or under common control with Buyer. For the purposes of
this definition, “control” means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of an entity or a person, whether through the
ownership of voting securities, by contract, or otherwise, and the terms “controlling” and
“controlled” have the meanings correlative to the foregoing. Upon execution of an assignment and
assumption agreement between Buyer, as assignor, and a Buyer Permitted Transferee, ROEM
Development Corporation shall be released from all obligations under this Agreement, and
thereafter, for purposes of this Agreement and where the context warrants, a reference to the Buyer
shall be to the applicable Permitted Transferee.
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11. ENVIRONMENTAL INDEMNITY. Effective upon Close of Escrow, to
the fullest extent allowed by law, Buyer agrees to unconditionally and fully indemnify, protect,
defend (with counsel satisfactory to Seller), and hold Seller, and their respective elected and
appointed officers, officials, employees, agents, consultants and contractors harmless from and
against any and all claims (including without limitation third party claims for personal injury, real
or personal property damage, or damages to natural resources), actions, administrative proceedings
(including without limitation both formal and informal proceedings), judgments, damages,
punitive damages, penalties, fines, costs (including without limitation any and all costs relating to
investigation, assessment, analysis or clean-up of the Property), liabilities (including without
limitation sums paid in settlements of claims), interest, or losses, including reasonable attorneys’
and paralegals’ fees and expenses (including without limitation any such fees and expenses
incurred in enforcing this Agreement or collecting any sums due hereunder), together with all other
costs and expenses of any kind or nature (collectively, the “Costs”) that arise directly or indirectly
from or in connection with the presence, suspected presence, release, or suspected release, of any
Hazardous Materials in, on or under the Property or in or into the air, soil, soil gas, groundwater,
or surface water at, on, about, around, above, under or within the Property, or any portion thereof,
except those Costs that arise solely as a result of actions by Seller or actions by the Seller. The
indemnification provided pursuant to this Section shall specifically apply to and include claims or
actions brought by or on behalf of employees of Buyer or any of its predecessors in interest and
Buyer hereby expressly waives any immunity to which Buyer may otherwise be entitled under any
industrial or worker’s compensation laws. In the event the Seller suffers or incurs any Costs, Buyer
shall pay to Seller the total of all such Costs suffered or incurred by the Seller upon demand
therefore by Seller. The indemnification provided pursuant to this Section shall include, withou t
limitation, all loss or damage sustained by the Seller due to any Hazardous Materials: (a) that are
present or suspected by a governmental agency having jurisdiction to be present in the Property or
in the air, soil, soil gas, groundwater, or surface water at, on, about, above, under, or within the
Property (or any portion thereof) or to have emanated from the Property, or (b) that migrate, flow,
percolate, diffuse, or in any way move onto, into, or under the air, soil, soil gas, groundwater, or
surface water at, on, about, around, above, under, or within the Property (or any portion thereof)
after the date of this Agreement as a result of Seller’s or its predecessors’ activities on the Property.
The provisions of this Section 10 shall survive the termination of this Agreement and the Close of
Escrow.
12. HAZARDOUS MATERIALS; DEFINITIONS.
12.1. Hazardous Materials. As used in this Agreement, “Hazardous
Materials” means any chemical, compound, material, mixture, or substance that is now or may
in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws
(defined below) as a “hazardous substance”, “hazardous material”, “hazardous waste”,
“extremely hazardous waste”, infectious waste”, toxic substance”, toxic pollutant”, or any other
formulation intended to define, list or classify substances by reason of deleterious properties
such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term “Hazardous
Materials” shall also include asbestos or asbestos-containing materials, radon, chrome and/or
chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum
components, oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas usable as fuel, perchlorate, and methyl tert butyl ether, whether or not defined as a
hazardous waste or hazardous substance in the Environmental Laws.
19
12.2. Environmental Laws. As used in this Agreement, “Environmental
Laws” means any and all federal, state and local statutes, ordinances, orders, rules, regulations,
guidance documents, judgments, governmental authorizations or directives, or any other
requirements of governmental authorities, as may presently exist, or as may be amended or
supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling,
treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the
environment or human, plant or animal health, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous
Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
§ 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Porter-Cologne
Water Quality Control Act (Cal. Water Code § 13000 et seq.), the Toxic Mold Protection Act
(Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking Water and Toxic Enforcement
Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste Control Act
(Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials Release Response Plans
& Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter-Presley-Tanner
Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300 et seq.).
13. RELEASE BY BUYER. Effective upon the Close of Escrow, and subject to
Seller's representations under this Agreement and any obligations arising under this Agreement or
applicable law, Buyer waives releases, remises, acquits and forever discharges Seller, and its
officers, directors, appointed and elected officials, managers, employees and agents, and any other
person acting on behalf of Seller, from any and all claims, actions, causes of action, demands,
rights, damages, costs, expenses and compensation whatsoever, direct or indirect, known or
unknown, foreseen or unforeseen, which Buyer now has or which may arise in the future on
account of or in any way arising from or in connection with the physical condition of the Property
or any law or regulation applicable thereto including, without limiting the generality of the
foregoing, any federal, state or local law, ordinance or regulation pertaining to Haz ardous
Materials. This Section 13 shall survive the termination of this Agreement and the Close of
Escrow.
BUYER ACKNOWLEDGES THAT BUYER IS FAMILIAR WITH SECTION 1542 OF
THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
BY INITIALING BELOW, BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION
1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING
RELEASE:
20
Buyer’s initials: _____________
14. LOSS BY FIRE OR OTHER CASUALTY/CONDEMNATION
(a) If prior to the Closing Date the Property is materially damaged or
condemned, or if Seller receives notice of pending or threatened condemnation proceedings, as
defined in subparagraph (c) below, Buyer shall have the right, exercisable by giving written notice
of such decision to Seller within fifteen (15) calendar days after receiving written notice of such
damage, condemnation, or threatened condemnation to elect to proceed with this Agreement,
subject to the terms and conditions of this Section 14. If Buyer fails to give such written notice of
its intent to proceed with the transaction, Buyer shall be deemed to have elected to terminate this
Agreement, in which case neither party shall have any further rights or obligations hereunder
(except for those that expressly survive the termination of this Agreement) and the Deposit shall
be returned to Buyer.
(b) In the event of any damage to or condemnation of the Property,
whether or not material, upon the Closing all insurance or condemnation proceeds payable to Seller
by reason of such damage, destruction, or condemnation shall be paid or assigned to Buyer, less
such sums as may have been expended by Seller for the repair or restoration of the Property.
(c) For the purpose of this paragraph, the phrase “materially damaged
or condemned” shall be deemed to mean a loss or damage to the Property the cost of repair or
replacement of which exceeds Five Hundred Thousand Dollars ($500,000.00) or which results in
diminution in land area which results in a loss of any net square footage of the Property or any
condemnation of the Property, threatened or actual. Seller shall notify Buyer in writing within two
(2) days of any material damage, condemnation or threatened condemnation.
15. MISCELLANEOUS.
15.1. Attorneys’ Fees. If any party employs counsel to enforce or interpret this
Agreement, including the commencement of any legal proceeding whatsoever (including
insolvency, bankruptcy, arbitration, mediation, declaratory relief or other litigation), the
prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs
(including the service of process, filing fees, court and court reporter costs, investigative fees,
expert witness fees, and the costs of any bonds, whether taxable or not) and shall include the
right to recover such fees and costs incurred in any appeal or efforts to collect or otherwise
enforce any judgment in its favor in addition to any other remedy it may obtain or be awarded.
Any judgment or final order issued in any legal proceeding shall include reimbursement for all
such attorneys’ fees and costs. In any legal proceeding, the “prevailing party” shall mean the
party determined by the court to most nearly prevail and not necessarily the party in whose favor
a judgment is rendered.
15.2. Interpretation. This Agreement has been negotiated at arm’s length and
each party has been represented by independent legal counsel in this transaction and this
Agreement has been reviewed and revised by counsel to each of the Parties. Accordingly, each
party hereby waives any benefit under any rule of law (including Section 1654 of the California
21
Civil Code) or legal decision that would require interpretation of any ambiguities in this
Agreement against the drafting party.
15.3. Survival. All indemnities, covenants, representations and warranties
contained in this Agreement shall survive Close of Escrow.
15.4. Successors. Except as provided to the contrary in this Agreement, this
Agreement shall be binding on and inure to the benefit of the Parties and their successors and
assigns.
15.5. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
15.6. Integrated Agreement; Modifications. This Agreement (and all exhibits
incorporated herein) contains all the agreements of the Parties concerning the subject hereof any
cannot be amended or modified except by a written instrument executed and delivered by the
parties. There are no representations, agreements, arrangements or understandings, either oral
or written, between or among the parties hereto relating to the subject matter of this Agreement
that are not fully expressed herein. In addition there are no representations, agreements,
arrangements or understandings, either oral or written, between or among the Parties upon which
any party is relying upon in entering this Agreement that are not fully expressed herein.
15.7. Severability. If any term or provision of this Agreement is determined to
be illegal, unenforceable, or invalid in whole or in part for any reason, such i llegal,
unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, any
such provision shall not be affected by the legality, enforceability, or validity of the remainder
of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance
with the provisions of this Section, then the stricken provision shall be replaced, to the extent
possible, with a legal, enforceable and valid provision this is in keeping with the intent of the
Parties as expressed herein.
15.8. Notices. Any delivery of this Agreement, notice, modification of this
Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval,
waiver, declaration or other communication that either party desires or is required to give to the
other party or any other person shall be in writing. Any such communication may be served
personally, or by nationally recognized overnight delivery service (i.e., Federal Express) which
provides a receipt of delivery, or sent by prepaid, first class mail, return receipt requested, with
a courtesy copy delivered via e-mail, to the party’s address as set forth below:
To Buyer: ROEM Development Corporation
Attn: Alex Sanchez
1650 Lafayette Street
Santa Clara, CA 95050
Telephone: (408) 984-5600 x16
Email: [email protected]
22
with a copy to: Situs Law, PC
Attn: Summer Ludwick
10 Almaden Blvd., Suite 1250
San Jose, CA 95113
Tel (408) 299-0100
Email: [email protected]
To Seller: City of South San Francisco
Attn: Mike Futrell
400 Grand Avenue
South San Francisco, CA 94080
Tel (650) 877-8501
Email: [email protected]
Copy to: [email protected]
with a copy to: Meyers Nave
Attn: Jason Rosenberg
555 12th Street, Suite 1500
Oakland, CA 94607
Tel (510) 808-2000
Email: [email protected]
If to Escrow Holder: Chicago Title Insurance Company
Escrow Agent: Sherri Keller
675 N. First Street
San Jose, CA 95112
Tel (408)993-2325
Email: [email protected]
Any such communication shall be deemed effective upon personal delivery or on the date of first
refusal to accept delivery as reflected on the receipt of delivery or return receipt, as applicable.
Any party may change its address by notice to the other party. Each party shall make an ordinary,
good faith effort to ensure that it will accept or receive notices that are given in accordance with
this section and that any person to be given notice actually receives such notice.
15.9. Time. Time is of the essence to the performance of each and every
obligation under this Agreement.
15.10. Days of Week. If any date for exercise of any right, giving of any notice,
or performance of any provision of this Agreement falls on a Saturday, Sunday or federal
observed holiday, the time for performance will be extended to 5:00 p.m. on the next business
day.
15.11. Reasonable Consent and Approval. Except as otherwise provided in this
Agreement, whenever a Party is required or permitted to give its consent or approval under this
Agreement, such consent or approval shall not be unreasonably withheld or delayed. If a Party
is required or permitted to give its consent or approval in its sole and absolute discretion or if
23
such consent or approval may be unreasonably withheld, such consent or approval may be
unreasonably withheld but shall not be unreasonably delayed.
15.12. Cooperation and Further Assurances. Each Party agrees to cooperate with
the other in this transaction and, in that regard, shall at their own cost and expense execute and
deliver such further documents and instruments and shall take such other actions as may be
reasonably required or appropriate to carry out the intent and purposes of this Agreement.
15.13. Waivers. Any waiver by any Party shall be in writing and shall not be
construed as a continuing waiver. No waiver will be implied from any delay or failure to take
action on account of any default by any Party. Consent by any Party to any act or omission by
another Party shall not be construed to be consent to any other subsequent act or omission or to
waive the requirement for consent to be obtained in any future or other instance.
15.14. Signatures/Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Any one of such completely executed counterparts shall be
sufficient proof of this Agreement. Copies of original signatures shall suffice for all purposes.
15.15. Access to Property. Prior to the Closing, Seller shall cooperate to enable
representatives of Buyer to obtain the right of access to all portions of the Property for the
purposes of implementing this Agreement. Buyer agrees to provide written notice to Seller at
least twenty four (24) hours prior to undertaking any studies or work upon the Property. Buyer
shall indemnify, defend, protect and hold Seller and Seller Parties harmless from any Claims
arising out of the acts, omissions, negligence or willful misconduct of Buyer or its employees,
agents, contractors, subcontractors or representatives (each a “Buyer Party” and, collectively,
the “Buyer Parties”) in connection with such studies and investigations, except for Claims
arising from or related to any pre-existing condition on or of the Property or Claims to the extent
caused by the active negligence or willful misconduct of Seller or its employees, agents,
contractors or representatives. In addition, in the event Buyer or any Buyer Party causes any
damage to any portion of the Property, Buyer shall promptly restore the Property as nearly as
possible to the physical condition existing immediately prior to Buyer’s entry onto the Property.
Buyer’s indemnification obligations set forth in this Section 15.15 shall survive Closing or the
termination of this Agreement.
15.16. Memorandum of Agreement. A Memorandum of Agreement in
substantially the form of Exhibit E attached hereto and incorporated herein by this reference shall
be executed and recorded against the Property immediately following recordation of the Grant
Deed.
15.17. Relationship Between Seller and Buyer. It is hereby acknowledged that
the relationship between Seller and Buyer is not that of a partnership or joint venture and that
Seller and Buyer shall not be deemed or construed for any purpose to be the agent of the other.
Accordingly, except as expressly provided herein or in the exhibits hereto, Seller shall have no
rights, powers, duties or obligations with respect to the development, operation, maintenance or
management of the Project.
24
15.18. Seller Approvals and Actions. Whenever a reference is made herein to an
action or approval to be undertaken by Seller, the City Manager of the City of South San
Francisco, or its designee is authorized to act on behalf of Seller.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
SELLER:
CITY OF SOUTH SAN FRANCISCO
By: _______________________________
Mike Futrell
City Manager
ATTEST:
By: _______________________________
City Clerk
APPROVED AS TO FORM:
By: _______________________________
Jason Rosenberg
City Attorney
BUYER:
ROEM DEVELOPMENT CORPORATION,
a California corporation
By: _______________________________
Robert Emami, President
APPROVED AS TO FORM:
By: _______________________________
Counsel for Buyer
25
Chicago Title Insurance Company agrees to act as Escrow Holder in accordance with the
terms of this Agreement.
CHICAGO TITLE INSURANCE COMPANY
By:
Name:
Its:
Dated:
26
LIST OF EXHIBITS
Exhibit A Legal Description
Exhibit B Affordable Housing Agreement
Exhibit C Development Agreement
Exhibit D Completion Guaranty
Exhibit E Memorandum of Agreement
27
Exhibit A
LEGAL DESCRIPTION
201 Grand Avenue
For APN/Parcel ID(s): 012-316-110
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH
SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS
DESCRIBED AS FOLLOWS:
LOT 29 IN BLOCK 140, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "SOUTH SAN
FRANCISCO, SAN MATEO COUNTY, CALIFORNIA, PLAT NO. 1", FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF
CALIFORNIA, ON MARCH 1, 1892 IN BOOK "B" OF MAPS AT PAGE(S) 6, AND A COPY
ENTERED IN BOOK 2 OF MAPS AT PAGE 52.
207 Grand Avenue
For APN/Parcel ID(s): 012-316-100
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SOUTH
SAN FRANCISCO, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS
DESCRIBED AS FOLLOWS:
LOT 28, IN BLOCK 140, AS DESIGNATED ON THE MAP ENTITLED “SOUTH SAN
FRANCISCO, SAN MATEO CO. CAL, PLAT NO. 1”, WHICH MAP WAS FILED IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF
CALIFORNIA ON MARCH 1, 1892 IN BOOK “B” OF MAPS, AT PAGE 6, AND A COPY
ENTERED IN BOOK 2 OF MAPS, AT PAGE 52.
217-219 Grand Avenue
For APN/Parcel ID(s): 012-316-080
012-316-090
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN MATEO, CITY OF SOUTH SAN FRANCISCO, AND DESCRIBED AS
FOLLOWS:
LOTS 25, 26 AND 27 IN BLOCK 140, AS DESIGNATED ON THE MAP ENTITLED
“SOUTH SAN FRANCISCO, SAN MATEO CO. CAL, PLAT NO. 1”, WHICH MAP WAS
FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE
OF CALIFORNIA ON MARCH 1, 1892 IN BOOK “B” OF MAPS, AT PAGE 6, AND A
COPY ENTERED IN BOOK 2 OF MAPS, AT PAGE 52.
28
Exhibit B
AFFORDABLE HOUSING AGREEMENT
[to be provided upon execution]
29
Exhibit C
DEVELOPMENT AGREEMENT
[to be provided upon execution]
30
Exhibit D
COMPLETION GUARANTY
[to be provided upon execution]
31
Exhibit E
FORM OF MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
APN: Space above this line for recorder’s use
MEMORANDUM OF PURCHASE AGREEMENT
THIS MEMORANDUM OF PURCHASE AGREEMENT (this “Memorandum”)
is made effective as of the ____ day of _______, _____, by and between_______, a
California____________ (“Seller”), and _____________________ (“Buyer”), with reference to
the following facts:
A. Seller and Buyer have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions, dated _________, 2017 (the “Agreement”), providing
for, among other things, the sale by Seller to Buyer of the real property more particularly described
on Exhibit “A” (the “Property”).
B. Seller and Buyer now desire to set forth a memorandum of public record of
such Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the
parties hereto, it is hereby agreed as follows:
1. Purchase. Seller has agreed to sell to Buyer, and Buyer has agreed to
purchase from Seller, the Property upon the terms and subject to the conditions contained in the
Agreement, all of which terms and conditions are hereby incorporated herein by this reference as
though fully set forth herein.
2. Termination. If not acquired by Buyer pursuant to the Purchase
Agreement, this Memorandum shall terminate as of the date the Agreement terminates in
accordance with its terms and in no event later than ______________.
3. Purpose. This Memorandum is prepared solely for the purpose of
recordation, and it in no way modifies the provisions of the Agreement.
4. No Change in Ownership. The recording of this document does not
constitute a change in ownership. The recording is for the sole purpose of placing third parties on
notice that the Seller has entered into a contract to sell the subject property and that the sale is
32
pending until such time as a Grant Deed is recorded or a Quitclaim Deed releasing the
Memorandum is recorded.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the date first written above.
Seller:
By: _________________________________
Name: _______________________________
Its: _________________________________
Date: _____________________________
Buyer
By: _________________________________
Name: _______________________________
Its: _________________________________
Date: _____________________________