HomeMy WebLinkAboutReso 196-2021 (21-666)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 196-2021
File Number: 21-666 Enactment Number: RES 196-2021
RESOLUTION MAKING FINDINGS AND
APPROVING A PURCHASE AND SALE
AGREEMENT WITH FIREHOUSE WORK LLC FOR
THE DISPOSITION OF THE CITY OF SOUTH SAN
FRANCISCO -OWNED PROPERTY LOCATED AT
201A BADEN AVENUE (APNS 012-335-100, AND
012-335-110) FOR $1,025,000 AND AUTHORIZING
THE CITY MANAGER TO EXECUTE THE
AGREEMENT.
WHEREAS, the City of South San Francisco ("City") is the owner of certain real property
located at 201 Baden Avenue, South San Francisco, which contains an old firehouse structure that has
been decommissioned, and known as County Assessor's Parcel Numbers ("APN") 012-335-100,
012-335-110, and the portion of Cypress Street that is to be vacated, with a combined lot size of 22,500
square feet; and
WHEREAS, on March 4, 2019, pursuant to a solicitation process, the City entered into an
Exclusive Negotiating Rights Agreement ("ENRA") with Firehouse Work, LLC ("Developer") and a
separate residential project developer, which authorized the parties to commence negotiating the terms of
purchase agreements relating to the rehabilitation of the Old Firehouse and construction of a mixed-use
residential and commercial development at 201 Baden Avenue; and
WHEREAS, on July 14, 2021 the City Council reviewed the proposed purchase offer
presented by Developer and directed City staff to negotiate a Purchase and Sale Agreement ("PSA"); and
WHEREAS, specifically, the 201 Baden Avenue parcel will be bifurcated and adjusted into
two separate parcels, temporarily identified as "201 a" and "201 b" Baden Avenue (and subsequently to be
identified as APNS 012-335-100 and 012-335-110 after bifurcation), with the proposed development
consisting of Developer rehabilitating the existing old firehouse structure on the 201a Baden Avenue
parcel into a 9,200 square foot commercial space, preserving its historical significance, and the
residential component developer constructing a separate affordable housing and commercial condo
project on the 201b Baden Avenue parcel; and
WHEREAS, the bifurcation process and related actions will be separately considered and
approved by the City Council; and
WHEREAS, the 201a Baden Avenue parcel will be sold to Developer, and the 201b Baden
Avenue parcel to the residential component developer, in separate transactions for their respective
projects and each developer would be responsible for entitling and developing their respective projects;
and
City of South San Francisco Page 1
File Number 21-666 Enactment Number. RES 196-2021
WHEREAS, City and Developer have negotiated a PSA, attached hereto at Exhibit A, where
its terms and provisions are agreed upon by both parties and both parties are prepared to enter into the
agreement; and
WHEREAS, prior to disposition of real property owned by the City, the Planning Commission
as the planning agency for the City is required to find such disposition is in conformity with the adopted
general plan in accordance with Government Code section 65402; and
WHEREAS, on September 15, 2021 the Planning Commission held a public meeting and
determined by resolution that the disposition of 201 a Baden Avenue as described in the foregoing
paragraphs is in conformance with the South San Francisco adopted General Plan; and
WHEREAS, the General Plan Land Use Designation for the 201 Baden property is Downtown
Transit Core, which includes specific policies related to development within the Downtown in an effort
to "encourage retention of existing and local businesses to the Downtown and to protect historic building
fabric", and to "promote Downtown's vitality and economic well-being and its presence as the City's
center"; and
WHEREAS, the proposed sale of the property and the entitlements that will ensue for this
project will provide for the rehabilitation of a historic building, the retention of an existing business and
the growth of the Downtown's commercial activities; and
WHEREAS, these activities with continue to conform to the General Plan Land Use Policies;
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 of the Downtown Station Area
Specific Plan ("DSAP"), including the Downtown Transit Core area where the 201 Baden Avenue site is
located; 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 finds 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 (CEQA Guidelines § 15168 (c)(2)); and
City of South San Francisco Page 2
File Number. 21-666 Enactment Number. RES 196-2021
WHEREAS, the development of the 201 Baden Avenue property was contemplated in the
DSAP EIR, and the execution of a PSA 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, in addition, the proposed development projects at this site will also be subject to
further environmental review and determination pursuant to CEQA as a part of their respective planning
entitlements approval processes.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San
Francisco does hereby resolve as follows:
1. The foregoing recitals are true and correct and made a part of this Resolution.
2. The disposition of the 201 Baden Avenue property is consistent with the General Plan which
"encourages the retention of existing and local businesses to the Downtown and protects
historic buildings' fabric", and "promotes Downtown's vitality and economic well-being and
its presence as the City's center". Thus, in accordance with California Government Code
section 65402, the City Council hereby finds that the location, purpose and extent of the
proposed disposition of 201 Baden Avenue (APN 012-321-160 and 012-335-110), is in
conformity with the City's adopted General Plan. The documents and other material
constituting the record for these proceedings are located at the Planning Division for the City
of South San Francisco, 315 Maple Avenue, South San Francisco, CA 94080, and in the
custody of the Chief Planner, Tony Rozzi.
3. A Purchase and Sale Agreement with Firehouse Work, LLC in substantially the same form
attached hereto as Exhibit A, for the disposition of the 201a Baden Avenue parcel as
described in the foregoing recitals and in the PSA, for $1,025,000, is hereby approved.
4. The City Manager is hereby authorized to enter into and execute on behalf of the City
Council the Purchase and Sale Agreement, in substantially the same form attached hereto as
Exhibit A; and to make any non -material revisions, amendments or modifications that do not
increase the City's obligations and deemed necessary to carry out the intent of this
Resolution.
5. The City Manager is hereby authorized to execute any other necessary documents related to
the sale of the Property, and to take any and all other actions necessary to implement this
intent of this Resolution, subject to approval as to form by the City Attorney.
At a meeting of the City Council on 11/10/2021, a motion was made by Councilmember Nicolas,
seconded by Vice Mayor Nagales, that this Resolution be approved. The motion passed.
City of South San Francisco Page 3
File Number: 21-666 Enactment Number: RES 196-2021
Yes: 5 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, Councilmember
Coleman, and Councilmember Flores
0
Attest by 46M Z i zL
osa Govea Acosta, City Clerk
City of South San Francisco Page 4
- 1 -
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (“this Agreement”) is entered into as of _________________ (the “Effective
Date”), by and between the City of South San Francisco, a municipal corporation, (“Seller” or
(“City”)) and Firehouse Work, LLC, a California limited liability company (“Buyer”). Seller and
Buyer are collectively referred to herein as the “Parties.”
RECITALS
A. Seller is the owner of certain real property located at 201 Baden Avenue, South San
Francisco, which contains an old firehouse structure that has been decommissioned (“Old
Firehouse”) and known as County Assessor’s Parcel Numbers (“APN”) 012-335-100, 012-
335-110, and the portion of Cypress Street that is to be vacated, with a combined lot size of
22,500 square feet, collectively and commonly known as the “Old Firehouse Parcel”.
B. On March 4, 2019, pursuant to a solicitation process, Seller entered into an Exclusive
Negotiating Rights Agreement (“ENRA”) with Buyer and a separate residential project
developer, which authorized the parties to commence negotiating the terms of purchase
agreements relating to the rehabilitation of the Old Firehouse and construction of a mixed-
use residential and commercial development on the Old Firehouse Parcel.
C. Specifically, the proposed development will consist of Buyer rehabilitating the existing Old
Firehouse structure into a 9,200 square foot commercial space, preserving its historical
significance (the “Commercial Project”), and the residential component developer
constructing approximately eighty-two (82) deed-restricted affordable housing residential
units along with a commercial condo on the ground floor.
D. To facilitate this proposal, the Old Firehouse Parcel is to be bifurcated into two separate
parcels (to be identified as APNs 012-335-100 and 012-335-110), which are to be
effectuated through a lot line adjustment to be completed by Buyer after the execution of
this Agreement and the vacation of Cypress Street to be prepared by Buyer and approved
by Seller prior to opening escrow as described in further detail below, with APN 012-335-
100 containing the Old Firehouse (“Property”). These parcels will be sold to each
developer in separate transactions for their respective projects and each developer would be
responsible for entitling and developing their respective projects.
E. Between 2019 and 2021 and most recently in May 2021, the ENRA was administratively
extended and amended several times to extend its terms and, among other things, to replace
the developer for the residential component of the proposed development on the Old
Firehouse Parcel. In consideration for the right to exclusively negotiate under the ENRA,
Buyer has previously remitted to Seller a deposit in the amount of Fifty Thousand Dollars
($50,000), which is to be deposited into escrow and credited towards Buyer’s ultimate
purchase price for the Property as provided herein.
- 2 -
F. In addition to the Deposit, Buyer also remitted to Seller an initial payment in the amount of
Thirty Thousand Dollars ($30,000) in immediately available funds (“Payment”) in
connection with the ENRA, which was subsequently drawn upon to reimburse Seller for
work performed in connection with the ENRA. Seller has deposited the Payment in an
interest bearing account of Seller and any interest, when received by Seller, will become
part of the Payment. The Payment may be drawn upon by Seller to reimburse staff, City
Attorney, and City consultant costs as provided herein but is not to be applied towards the
ultimate purchase price for the Property.
G. The ENRA contemplates the Seller, Buyer and the residential component developer to
negotiate two (2) separate purchase agreements in order for Buyer and the residential
component developer to pursue land use entitlements for the Commercial Project and the
proposed residential development, respectively, and to acquire the bifurcated parcels
respectively for such purposes.
H. Buyer agrees to purchase the Property to construct the Commercial Project, and Seller
agrees to sell the Property to Buyer, subject to the terms and conditions of this Agreement.
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:
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 Agreement to Buy and Sell. Subject to the terms and conditions set forth
herein, Seller agrees to sell the Property to Buyer, and Buyer hereby agrees to acquire the Property
from Seller.
2.2 Purchase Price. The purchase price for the Property to be paid by Buyer to
Seller (the “Purchase Price”) is one million twenty five thousand dollars ($1,025,000.00). The
Purchase Price shall be paid in cash at the Close of Escrow (“Closing”) to Seller.
2.3 Approval; CEQA Compliance. The Parties acknowledge and agree that the
execution of this Agreement does not constitute Seller’s approval or issuance of any entitlements
or permits for the development of the Property or construction of the Commercial Project and does
not relieve Buyer from its obligations to apply for and obtain all such approvals, entitlements and
permits. Further, the execution of this Agreement is subject to compliance with the California
Environmental Quality Act (“CEQA”) and does not constitute any approval or determination by
Seller thereunder. Buyer acknowledges that Seller is responsible as the lead agency as defined by
CEQA to complete all environmental analysis and determination required by CEQA. Seller agrees
to consider all applicable exemptions under CEQA in good faith.
2.4 Schedule of Performance. The Parties have collaborated on an anticipated
project milestone schedule attached hereto and incorporated herein as Exhibit D (“Schedule of
- 3 -
Performance”). The Parties agree this Schedule of Performance constitutes the reasonable
estimates of the timing of performance for actions associated with this Agreement and development
of the Property, and agree to adhere to the Schedule of Performance as much as reasonably possible.
Any extension of time from the dates set forth in the Schedule of Performance shall require approval
as provided in Section 13.18 below. However, in no event shall a failure by either Party to meet any
timeline under the Schedule of Performance constitute a default under this Agreement as long as
diligent efforts were made towards meeting such timelines.
3. ESCROW.
3.1 Escrow Account. Buyer has opened an interest-bearing escrow account
(the “Escrow”) maintained by Ticor Title Company in Newport Beach, California (the “Escrow
Holder”), with interest accruing to the benefit of Buyer. Buyer shall be responsible for all Escrow
fees and costs. Escrow Holder shall perform all escrow and title services in connection with this
Agreement.
3.2 Opening of Escrow. Within seven (7) business days after the Effective
Date, the Parties will deposit into Escrow the fully executed Agreement, or executed counterparts
thereto. Escrow shall not open until Seller and Buyer have satisfied all of their respective
obligations as set forth below. The date that is the later of the following to occur shall be deemed
the “Opening of Escrow”:
(a) Buyer shall have obtained all required Planning entitlements from the
Seller for the development of the Property.
(b) Buyer shall have submitted a draft Developer’s Financing Plan (as
defined in Section 5.2(e) below) to Seller for review not later than forty-five (45) days prior to
Seller’s consideration of entitlements for the development of the Property.
(c) Buyer shall have submitted an application for building permits to
develop the Property to Seller for review.
(d) Buyer shall have, with reasonable cooperation from Seller, submitted
all documents, material and maps and undertaken all actions applicable and necessary for Seller to
approve, and Seller shall have approved the vacation of Cypress Avenue.
(e) Buyer shall have, with reasonable cooperation from Seller, prepared all
documents, materials and maps and undertaken all actions necessary to complete a lot line
adjustment bifurcating the Old Firehouse Parcel into two parcels as contemplated in the ENRA.
3.3 Buyer’s Reimbursement for City Administrative Costs. During the term of
this Agreement, Buyer shall reimburse Seller for all staff and City consultant time incurred in
completing the obligations that relate to the purchase and conveyance of the Property. The Parties
acknowledge that Buyer has previously remitted to Seller an initial payment in the amount of Thirty
Thousand Dollars ($30,000) in immediately available funds (“Payment”) in connection with the
ENRA as most recently amended on May 28, 2021, which Payment was subsequently drawn upon
to reimburse Seller for work performed in connection with the ENRA and subsequent amendments.
Seller has deposited the Payment in an interest bearing account of Seller and any interest, when
- 4 -
received by Seller, will become part of the Payment. The Payment shall be drawn down by Seller
to reimburse staff, City Attorney, and City consultant costs for completing the obligations that relate
to the purchase and conveyance of the Property to Buyer, at the rates most recently approved by
City Council in the City’s master fee schedule or under contract. Should the full amount of the
Payment be exhausted prior to Closing, Buyer shall replenish the Payment amount with additional
funds necessary to reimburse such staff, City Attorney and consultant costs. Documentation of
City’s rate schedule for staff, staff time spent, and consultant costs shall be retained by Seller and
provided to Buyer upon request. The Payment shall not be applied towards the Purchase Price at
Closing and any unused portion of the Payment shall be refunded to Buyer within thirty (30) days
after the completion of all Closing or post-Closing obligations, as applicable.
3.4. Buyers Deposit. The Parties acknowledge that Buyer, in consideration for
the right to exclusively negotiate under the ENRA, previously remitted to Seller a deposit in the
amount of Fifty Thousand Dollars ($50,000) (the “Deposit”) pursuant to section 5(a) of the ENRA
as most recently amended. Within three (3) business days after the Opening of Escrow, Seller shall
deliver the Deposit into Escrow with Escrow Holder on behalf of Buyer. If Buyer does not issue a
Disapproval Notice (as defined in Section 3.5 below), Buyer shall deposit an additional fifty
thousand dollars ($50,000.00) in Escrow (the “Additional Deposit”). The Deposit and Additional
Deposit are sometimes collectively referred to herein as the “Deposits.” The Deposits shall become
non-refundable regardless of whether Buyer has issued a Disapproval Notice except in the event of
Seller’s default under this Agreement. The Deposits shall be applied towards the Purchase Price at
Closing if Buyer does not terminate this Agreement pursuant to Section 3.5.
3.5. Satisfaction of Due Diligence Contingency. Buyer shall have the right, in its
sole discretion, to terminate this Agreement for any reason at any time prior to the expiration of the
Due Diligence Contingency Period (as defined in Section 5.2 (a) below) by providing written notice
thereof. Without limiting the generality of the foregoing, Buyer’s reasons for terminating this
Agreement may include: (i) Seller approves entitlements for the development of the Property that
are not satisfactory to Buyer in Buyer’s sole discretion; (ii) Seller requires any portion of the
Property be committed to retail uses; (iii) Seller does not approve a parking reduction for the
Commercial Project based on the project’s proposed Transportation Demand Management (TDM)
Plan, or Seller requires shared parking; or (iv) Seller rejects the proposed parking layout, and
elimination of existing on-street parking and vehicle ingress and egress routes to the parking spaces
from Second Lane, South San Francisco as depicted on the submitted plans during the pre-
application process attached hereto as Exhibit C . Buyer hereby agrees to provide written notice to
Seller prior to the expiration of the Due Diligence Contingency Period if Buyer elects to terminate
this Agreement pursuant to this Section 3.5 (“Disapproval Notice”). If Buyer provides a
Disapproval Notice to Seller before 11:59 p.m. on the last day of the Due Diligence Contingency
Period, this Agreement shall terminate, and Seller shall retain the Deposit, and neither party shall
have any further rights or obligations hereunder except those which expressly survive the
termination hereof. If Buyer fails to deliver the Disapproval Notice to Seller prior to 11:59 p.m. on
the last day of the Due Diligence Contingency Period, it will be conclusively presumed that Buyer
has approved all such items, matters or documents, and this Agreement shall not terminate.
4. PROPERTY DISCLOSURE REQUIREMENTS.
4.1 Condition of Title/Preliminary Title Report. Escrow Holder shall deliver
a Preliminary Title Report for the Old Firehouse Parcel (the “First Preliminary Report”) to Buyer
- 5 -
within three (3) days after the Effective Date. After Buyer and Seller have undertaken all actions
necessary for the vacation of Cypress Avenue and completion of the lot line adjustment bifurcating
the Old Firehouse Parcel into two parcels as described in Section 3.3, Buyer shall deliver to Escrow
Holder and Escrow Holder shall furnish Seller with evidence that the lot line adjustment has been
completed and, if elected by Buyer at Buyer’s own expense, Escrow Holder shall delivery a second
Preliminary Title Report for the Property as a separate parcel (“Second Preliminary Report”).
Buyer shall have until the end of the Due Diligence Contingency Period to approve the condition
of title to the Property. If Buyer does not deliver the Disapproval Notice, Buyer agrees to take title
to the Property subject to the following “Permitted Exceptions”: (a) standard printed exceptions
in the First and Second Preliminary Reports (if Second Preliminary Report is provided); and
(b) general and special real property taxes and assessments constituting a lien not yet due and
payable. In no event shall any monetary liens be deemed a Permitted Exception. Buyer shall
provide any objections to the condition of title to Seller in writing prior to the Due Diligence
Contingency Period.
4.2 Environmental Condition of Property. Seller has provided Buyer with all
documents reasonably known to Seller pertaining to the environmental condition of the Property.
At Closing, the Buyer agrees to take title of the Property in AS- IS WHERE-IS condition with no
environmental remediation work required by or indemnities from Seller. Seller, at Buyer’s expense,
agrees to reasonably cooperate with Buyer to obtain regulatory approval of any necessary
environmental work for the Property. Buyer explicitly acknowledges that Buyer will be responsible
to manage and complete any remediation work for the Property after Closing. After Closing, Seller
shall have no further obligations with respect to environmental and/or natural hazards remediation
costs.
4.3 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.
Pursuant to Section 4.2, Seller agrees to make any necessary disclosures required by law.
5. CLOSING AND PAYMENT OF PURCHASE PRICE.
5.1 Closing. The closing (the “Closing” or “Close of Escrow”) shall occur
within ten (10) business days after Buyer has satisfied all conditions to closing as described below
(“Closing Date”) or such other date that the Parties agree in writing. Notwithstanding the foregoing,
the Closing Date shall not occur later than December 31, 2022.
5.2 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. Buyer will have
sixty (60) calendar days from the Opening of Escrow (the “Due Diligence Contingency Period”)
to complete physical inspections of the Property and due diligence related to the purchase of the
Property. Seller shall provide to Buyer copies of all reasonably available and known documents
relating to the ownership and operation of the Property, including but not limited to plans, permits
- 6 -
and reports (environmental, structural, mechanical, engineering and land surveys) that Seller has in
its possession not later than two (2) business days following the execution and delivery of this
Agreement. All physical inspections must be coordinated with Seller’s representative. Buyer hereby
agrees to indemnify and hold Seller harmless for any damage to the Property caused (but not merely
revealed) by Buyer’s inspections.
(b) Seller has 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.
(d) The Title Company is irrevocably committed to issue an ALTA
standard coverage title insurance policy to Buyer, effective as of the Closing Date, insuring title to
Buyer in the full amount of the Purchase Price.
(e) Buyer shall have obtained all necessary entitlements and have
submitted all necessary documents and resolved all Seller edits and comments thereto, that are
necessary for Seller to issue a building permit for the development of the Property.
(f) Buyer shall have negotiated and executed any agreements for the
shared maintenance, construction or access between Buyer and the residential component developer
that are reasonably determined by Buyer to be necessary.
(g) Seller shall have approved the vacation of Cypress Avenue and the
lot line adjustment bifurcating the Property into two parcels.
5.3 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:
(a) Buyer shall have submitted the final insurance, business and
financing plan for the development of the Property, which shall include a pro forma and
substantially final financing terms contained in a financing commitment letter that confirms to the
Seller’s reasonable satisfaction the financial feasibility of Buyer’s development of the Project
(“Developer’s Financing Plan”) to Seller for approval.
(b) Buyer shall have submitted all necessary documents and resolved all
Seller edits and comments thereto, that are necessary for Seller to issue a building permit for the
development of the Property.
(c) Buyer has performed all obligations to be performed by Buyer
pursuant to this Agreement before Closing Date.
(d) Buyer's representations and warranties set forth herein are true and
correct in all material respects as of the Closing Date.
- 7 -
(e) Seller shall have approved the vacation of Cypress Avenue and the
lot line adjustment bifurcating the Property into two parcels.
5.4 Conveyance of Title. Seller will deliver marketable fee simple title to Buyer
at the Closing, subject only to the Permitted Exceptions. The Property will be conveyed by Seller
to Buyer in an “as is”, “where is,” and “with all faults” condition, with no warranty, express or
implied, by Seller as to the physical condition including, but not limited to, the soil, its geology, or
the presence of known or unknown faults or Hazardous Materials or hazardous waste (as defined
by Section 12); provided, however, that the foregoing shall not relieve Seller from disclosure of any
such conditions of which Seller has actual knowledge.
5.5 Deliveries at Closing.
(a) Deliveries by Seller. Seller shall deposit into the Escrow for delivery
to Buyer at Closing: (i) a grant deed, substantially in the form attached hereto as Exhibit B (“Grant
Deed”); (ii) an affidavit or qualifying statement which satisfies the requirements of paragraph 1445
of the Internal Revenue Code of 1986, as amended, any regulations thereunder (the “Non-Foreign
Affidavit”); (iii) a California Franchise Tax Board form 590 (the “California Certificate”) to
satisfy the requirements of California Revenue and Taxation Code Section 18805(b) and 26131.
(b) Deliveries by Buyer. 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 Deposits is equal to: (i) the Purchase Price as adjusted by any prorations between
the Parties; (ii) the escrow fees and recording fees; and (iii) the cost of the Title Policy.
(c) Closing. Upon Closing, Escrow Holder shall: (i) record the Grant
Deed; (ii) disburse to Seller the Purchase Price, less Seller’s share of any escrow fees, costs and
expenses; (iii) deliver to Buyer the Non-Foreign Affidavit, the California Certificate and the
original recorded Grant Deed; (iv) pay any commissions and other expenses payable through
escrow; and (vi) distribute to itself the payment of escrow fees and expenses required hereunder.
(d) Closing Costs. Buyer will pay all escrow fees (including the costs of
preparing documents and instruments), and recording fees. Buyer will also pay title insurance and
title report costs and all expenses associated with obtaining title insurance and report, except that
Seller agrees to furnish a property owner’s affidavit necessary for Buyer to acquire title insurance
coverage. Buyer shall also pay all other Closing costs including but not limited to any applicable
transfer taxes and governmental conveyance fees.
(e) 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 bond or assessment that
constitutes a lien on the Property at the close of escrow will be assumed by Buyer. Seller does not
pay ad valorem taxes.
- 8 -
5.6 Post-Closing Obligations. The following obligations shall survive the Close
of Escrow:
(a) Permits. Buyer shall take all necessary actions for building permits
to be issued to Buyer for the development of the Property within twenty (20) business days
following the Close of Escrow. Buyer shall pay all applicable permit fees, development fees,
planning and engineering department fees, and administrative fees and costs associated with
obtaining permits and entitlements in accordance with the most recent City Master Fee Schedule
adopted by the City Council.
(b) Developer’s Financing Plan. Seller shall have approved (which
approval shall not be unreasonably withheld, conditioned or delayed) the Developer’s Financing
Plan submitted by Buyer pursuant to Section 5.3 above.
(c) Seller shall have received for its review the construction contract for
Buyer’s development of the Property (the “Construction Contract”).
(c) Commence Work. Buyer shall commence work to develop the
Property in accordance with the Schedule of Performance under Exhibit D.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 Seller’s Representations, Warranties and Covenants. In addition to the
representations, warranties and covenants of Seller contained in other sections of this Agreement,
Seller hereby represents, warrants and covenants to Buyer that the statements below in this Section
6.1 are each true and correct as of the Effective Date and 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 or terminate this Agreement. If Buyer determines it does not wish to
proceed, then the terms of Section 3.4 will apply.
(a) Authority. Seller is a municipal corporation, lawfully formed, in
existence and in good standing under the laws of the State of California. Seller 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 Seller, and upon delivery to and execution by Buyer is a
valid and binding agreement of Seller.
(b) Encumbrances. 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 as disclosed in the First and Second Preliminary Reports (if Second Preliminary Report is
provided). 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) Agreements. 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
- 9 -
Buyer or the Property after the Close of Escrow, which cannot be terminated on thirty (30) days
prior written notice.
(d) Conflicts and Pending Actions. There is no agreement to which
Seller is a party or, to Seller’s knowledge, binding on Seller, which is in conflict with this
Agreement. There is no action, suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding pending or, to Seller’s knowledge, threatened against the Property or
the transaction contemplated by this Agreement.
(f) Lease. There are no leases of space in the Property, subleases,
licenses, franchise agreements or other agreements to occupy or utilize all or any portion of the
Property that will be in force after the Closing. At Closing, Seller shall deliver the Property to
Buyer vacant of any occupants.
(g) Condemnation. No condemnation proceedings relating to the
Property are pending or, to Seller’s knowledge, threatened.
(h) Foreign Person; OFAC. Seller is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. Seller represents
and warrants that (a) Seller and, to Seller’s actual knowledge, each person or entity owning an
interest in Seller is (i) not currently identified on the Specially Designated Nationals and Blocked
Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury
(“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute,
executive order or regulation (collectively, the “List”), and (ii) not a person or entity with whom a
citizen of the United States is prohibited to engage in transactions by any trade embargo, economic
sanction, or other prohibition of United States law, regulation, or Executive Order of the President
of the United States, and (iii) not an Embargoed Person (as hereinafter defined), (b) to Seller’s
actual knowledge, none of the funds or other assets of Seller constitute property of, or are
beneficially owned, directly or indirectly, by any Embargoed Person, and (c) to Seller’s actual
knowledge, no Embargoed Person has any interest of any nature whatsoever in Seller (whether
directly or indirectly). The term “Embargoed Person” means any person, entity or government
subject to trade restrictions under U.S. law, including but not limited to, the International
Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50
U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder.
(i) Compliance. Seller has not received any written notice from any
governmental authority that the Property is not in material compliance with all applicable laws and
regulations (including environmental and zoning laws and regulations), other than such violations
as have been fully cured. To Seller’s knowledge, neither Seller nor the Property are in default or
breach of any material obligation under any encumbrances, covenants or easement agreements
recorded against the Property.
(j) Hazardous Materials. Except as otherwise disclosed to Buyer by
Seller (including in any materials delivered or made available to Buyer), Seller has received no
written notice from any local, state or national governmental entity or agency of any asbestos, lead
or other Hazardous Materials existing or potentially existing with respect to the Property. As used
herein, “Hazardous Material” means any hazardous, toxic or dangerous waste, substance or
material, pollutant or contaminant, as defined for purposes of the Comprehensive Environmental
- 10 -
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended,
or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or
any other laws, or any substance which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous, or any substance which contains
gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls (PCBs), or radon
gas, urea formaldehyde, asbestos or lead.
(k) Purchase Options. There are no outstanding rights of first refusal,
rights of first offer, purchase options or similar purchase rights with respect to the Property.
(l) Management Agreements. There are no management agreements,
leasing agreements, brokerage agreements or similar agreements which affect the Property and will
survive Closing.
(m) Taxes. To Seller’s knowledge, there are no impositions of new
special assessments with respect to the Property.
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.
6.2 Buyer’s Representations and Warranties. In addition to the representations,
warranties and covenants of Buyer contained in other sections of this Agreement, Buyer hereby
represents, warrants and covenants to Seller that the statements below in this Section 6.2 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 is a California limited liability company. 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.
(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) Pending Actions. There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against Buyer which, if
adversely determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
(d) ERISA. Buyer is not acquiring the Property with the assets of an
employee benefit plan as defined in Section 3(3) of ERISA.
- 11 -
(e) Foreign Person; OFAC. Buyer is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. Buyer and, to
Buyer’s actual knowledge, each person or entity owning an interest in Buyer is (i) not currently
identified on the Specially Designated Nationals and Blocked Persons List maintained by the OFAC
and/or on any other similar List, (ii) not a person or entity with whom a citizen of the United States
is prohibited to engage in transactions by any trade embargo, economic sanction, or other
prohibition of United States law, regulation, or Executive Order of the President of the United
States, and (iii) not an “Embargoed Person,” to Buyer’s actual knowledge, none of the funds or
other assets of Buyer constitute property of, or are beneficially owned, directly or indirectly, by any
Embargoed Person, and to Buyer’s actual knowledge, no Embargoed Person has any interest of any
nature whatsoever in Buyer (whether directly or indirectly).
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.
6.3 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, and any document or instrument executed and delivered in connection with Closing,
Buyer is not relying on any representations or warranties of any kind whatsoever, express or
implied, from Seller, or its employees, appointed or elected officials, agents, or brokers as to any
matters concerning the Property. 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, and any document or instrument executed and
delivered in connection with Closing, 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.
7. REMEDIES In the event of a breach or default under this Agreement by Seller, if
such breach or default occurs prior to Close of Escrow, Buyer reserves the right to either (a) seek
specific performance from Seller or (b) to do any of the following: (i) to waive the breach or default
and proceed to close as provided herein; (ii) to extend the time for performance and the Closing
Date until Seller is able to perform; or (iii) to terminate this Agreement upon written notice to Seller,
whereupon Seller shall cause Escrow Holder to return to Buyer any and all sums placed into the
- 12 -
Escrow by Buyer, and except for the rights and obligations expressly provided to survive
termination of this Agreement, neither party shall have any further obligations or liabilities
hereunder. IN THE EVENT OF A BREACH OR DEFAULT HEREUNDER BY BUYER AND
THE CLOSING DOES NOT OCCUR DUE TO SUCH DEFAULT, SELLER’S SOLE REMEDY
SHALL BE TO RETAIN THE DEPOSITS AS LIQUIDATED DAMAGES. THE PARTIES
AGREE THAT IN SUCH INSTANCE, THE DEPOSITS REPRESENT A REASONABLE
APPROXIMATION OF SELLER’S DAMAGES AND ARE NOT INTENDED AS A
FORFEITURE OR PENALTY BUT RATHER AN ENFORCEABLE LIQUIDATED DAMAGES
PROVISION PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671, ET SEQ. IN NO
EVENT SHALL EITHER PARTY BE ENTITLED TO LOST PROFITS OR CONSEQUENTIAL
DAMAGES AS A RESULT OF THE OTHER PARTY’S BREACH OF THIS AGREEMENT.
Buyer’s Initials Seller’s Initials
8. 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. Each Party shall indemnify, hold harmless and defend the other Party from any and all
Claims and Losses for any breach of the preceding sentence, and any commission, finder’s fee, or
similar charges arising out of the same.
9. ASSIGNMENT. Absent an express signed written agreement between the Parties
to the contrary, neither Seller nor Buyer may assign its rights or delegate its duties under this
Agreement without the express written consent of the other. No permitted assignment of any of the
rights or obligations under this Agreement shall result in a novation or in any other way release the
assignor from its obligations under this Agreement. Buyer may not assign its rights under this
Agreement without first obtaining Seller’s written consent, which approval may be given or
withheld in Seller’s reasonable discretion. Seller’s approval of any assignment pursuant to this
Section 9 shall be contingent on the review and approval by the City Council of such proposed
assignment. Any transfer, directly or indirectly, of any stock, partnership interest or other ownership
interest in Buyer, for the sole purpose of transferring Buyer’s interest in this Agreement, without
Seller’s written approval, which approval may be given or withheld in Seller’s reasonable
discretion, shall constitute a default by Buyer under this Agreement. Without limitation of the
foregoing, no assignment by Buyer shall relieve Buyer of any of its obligations or liabilities
pursuant to this Agreement. Notwithstanding the foregoing, without having to obtain Seller’s
approval, Buyer may assign its interest in this Agreement on or before the Closing Date to an entity
(a “Buyer Assignee”) that is (a) an entity of which Buyer has day-to-day managerial control or (b)
any joint venture entity in which Buyer maintains a majority economic interest, or may (c) partially
assign this Agreement for the purposes of enabling closing as tenant-in-common with an otherwise
joint venture partner of Buyer for the purposes of consummating a tax deferred exchange, so long
as Buyer and Buyer Assignee execute and deliver an assignment and assumption agreement in form
reasonably satisfactory to Seller, pursuant to which Buyer Assignee remakes all of Buyer’s
representation and warranties set forth in this Agreement and the transferor shall not be released
from the obligations of “Buyer” hereunder.
- 13 -
10. INDEMNIFICATION; ENVIRONMENTAL INDEMNITY.
10.1 Indemnification. 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 its respective elected and appointed officers, officials, employees, agents, consultants,
contractors (collectively “Seller Indemnitees”), harmless from any and all third party claims,
liabilities, damages and costs (including reasonable attorney’s fees) arising out of or in connection
with Buyer’s performance under this Agreement, except to the extent that such claims, liabilities,
damages and costs are attributable to Seller’s negligence or willful misconduct or to a condition of
the Property in existence prior to Closing.
10.2 Environmental Indemnity. In addition to Section 10.1 above, to the fullest
extent allowed by law, Buyer agrees to unconditionally and fully indemnify, protect and defend
(with counsel satisfactory to Seller) the Seller Indemnitees 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 Seller’s agents, employees, or contractors. 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, without
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,
or those of Seller’s agents, employees, or contractors. The provisions of this Section 10 shall
survive the termination of this Agreement and the Close of Escrow.
11. RELEASE BY BUYER. Effective upon the Close of Escrow, except with respect
to the representations and warranties of Seller under Section 6.1 of this Agreement, Buyer waives
releases, remises, acquits and forever discharges Seller, and its officers, directors, board members,
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
- 14 -
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 Hazardous Materials. This Section 11 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 THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
BY INITIALING BELOW, BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF
THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE:
Buyer’s initials: _____________
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.
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.),
- 15 -
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. MISCELLANEOUS.
13.1 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.
13.2 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 Civil Code) or legal
decision that would require interpretation of any ambiguities in this Agreement against the drafting
party.
13.3 Survival. All indemnities, covenants, representations and warranties
contained in this Agreement shall survive Close of Escrow.
13.4 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.
13.5 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
13.6 Integrated Agreement; Modifications. This Agreement 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
- 16 -
written, between or among the Parties upon which any party is relying upon in entering this
Agreement that are not fully expressed herein.
13.7 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 illegal, 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.
13.8 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 to the
party’s address as set forth below, or by fax or electronic mail, in each case, sent to the intended
addressee at the address set forth below, or to such other address or to the attention of such other
person as the addressee shall have designated by written notice sent in accordance herewith, and
shall be deemed to have been given either at the time of first attempted delivery at the address and
in the manner provided herein, or, in the case of electronic mail for fax, as of the date of the
electronic mail or fax:
To Buyer: Firehouse Work LLC
211 Linden Ave
South San Francisco, CA 94080
Attn: Dawn Merkes
Email: [email protected]
Telephone No.: (650) 871-0709
With a Copy to: Coblentz Patch Duffy & Bass LLP
One Montgomery Street, Suite 3000
San Francisco, CA 94104
Attn: Frank Petrilli
Email: [email protected]
Telephone No.: (415) 268-0503
To Seller: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager, Mike Futrell
Email: [email protected]
Telephone No.: (650) 829 6620
Fax (650) 829-6609
With Copy To: City of South San Francisco
400 Grand Avenue
- 17 -
South San Francisco, CA 94080
Attn: Project Manager, Julie Barnard
Email: [email protected]
Telephone No.: (650) 829 6629
With Copy To: Meyers Nave
1999 Harrison St., 9th Floor
Oakland, CA 94612
Attn: Sky Woodruff
Email: [email protected]
To Escrow Holder: Ticor Title Company of California
1500 Quail Street, 3rd Floor
Newport Beach, CA 92660
Escrow Officer: Dawn Niehaus
Email: [email protected]
Title Officer: David Noble
Title Officer Phone: (714) 289-3379
Title Officer Fax: (949) 809-0676
Title Officer Email: [email protected]
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.
13.9 Time. Time is of the essence to the performance of each and every
obligation under this Agreement.
13.10 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 holiday,
the time for performance will be extended to 11:59 p.m. on the next business day.
13.11 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 such
consent or approval may be unreasonably withheld, such consent or approval may be unreasonably
withheld but shall not be unreasonably delayed.
13.12 Further Assurances. The Parties 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.
13.13 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
- 18 -
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.
13.14 Signatures/Counterparts. This Agreement may be executed by
electronic or facsimile signature. 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.
13.15 Date and Delivery of Agreement. Notwithstanding anything to the
contrary contained in this Agreement, the parties intend that this Agreement shall be deemed
effective, and delivered for all purposes under this Agreement, and for the calculation of any
statutory time periods based on the date an agreement between parties is effective, executed, or
delivered, as of the Effective Date.
13.16 Representation on Authority of Parties. Each person signing this
Agreement represents and warrants that he or she is duly authorized and has legal capacity to
execute and deliver this Agreement. Each party represents and warrants to the other that the
execution and delivery of the Agreement and the performance of such party’s obligations hereunder
have been duly authorized and that the Agreement is a valid and legal agreement binding on such
party and enforceable in accordance with its terms.
13.17 Possession. At Closing, Seller shall deliver sole and exclusive
possession of the Property to Buyer.
13.18 Approvals. Except with respect to entitlements, permits, regulatory
and governmental approvals, including but not limited to street vacations contemplated in this
Agreement, whenever this Agreement calls for Seller approval, consent, extension or waiver, the
written approval, consent, or waiver of the Seller’s City Manager or his or her designee(s) shall
constitute the approval, consent, extension or waiver of the Seller, without further authorization
required from the Seller’s Council, provided, however, that the anticipated Schedule of
Performance may be administratively extended for two (2) six (6) month periods and any
subsequent extensions shall require approval by the City Council. Prior to Seller granting any
extensions, Buyer shall pay Five Thousand Dollar ($5,000) per administrative extension and
Fifteen Thousand Dollar ($15,000) per extension requiring Council approval, unless otherwise
agreed to by the Parties in writing. The Seller hereby authorizes the City Manager and his or her
designee(s) to deliver any such approvals, consents, or extensions or waivers as are required by this
Agreement, or that do not otherwise reduce Seller’s rights under this Agreement, and to waive
requirements under this Agreement, on behalf of the Seller.
13.19 Merger, Survival. The provisions of this Agreement shall not merge
with the delivery of the Deed or any other instrument delivered at Closing, but shall, except as
otherwise provided in this Agreement, survive the Closing.
SIGNATURES ON FOLLOWING PAGE
- 19 -
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: _______________________________
Rosa Govea Acosta
City Clerk
APPROVED AS TO FORM:
By: _______________________________
Sky Woodruff
City Attorney
BUYER:
Firehouse Work, LLC
By: _______________________________
Andrea Gifford
Title: Member
By: _______________________________
Jonathan Hartman
Title: Member
By: _______________________________
Dawn Merkes
Title: Member
By: _______________________________
David Schnee
Title: Member
LIST OF EXHIBITS
Exhibit A Description of the Property
Exhibit B Grant Deed
Exhibit C Preliminary Plans
Exhibit D Schedule of Performance
Exhibit A
DESCRIPTION OF THE PROPERTY
Exhibit B
GRANT DEED
Recording Requested By and
When Recorded Return To:
Attention:
APN: ___________________
(Space above this line for Recorder’s use)
GRANT DEED
THE UNDERSIGNED GRANTOR(s) DECLARE(s):
DOCUMENTARY TRANSFER TAX IS $__________________ computed on full value of
property conveyed, or computed on full value less value of liens or encumbrances remaining at
time of sale.
_______________________________
Signature of Declarant
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_______________________ _____________________________, a ____________________
(“Grantor”) hereby grants to _____________________________, a _________________
(“Grantee”), the real property located in the City of __________, County of __________, State
of __________, described on Exhibit A attached hereto and made a part hereof.
GRANTOR:
_______________________________, a _______________________________
By: _______________________________
Its: _______________________________
Date: _______________________________
[Exhibit A and notarial acknowledgement to be attached]
Exhibit C
PRELIMINARY PLANS
Exhibit D
SCHEDULE OF PERFORMANCE
1 Submit Planning Application and Street
Vacation Application Submittals
Within 30 calendar days of the Effective Date of
the Purchase Agreement
2
Provide Draft Financing Plan
No later than 45 calendar days prior to Planning
Commission Hearing on Entitlement Approvals
3 Submit Application for Building Permit No later than 30 business days following date all
Entitlement Approvals are final
4 Escrow Open 1 day following Building Permit submittal
5 Submit Final Financing Plan
Prior to Closing
6 Close of Escrow No later than December 31, 2022
7 Pull Building Permit and Pay Required Fees Within 20 business days after Closing
8 Deliver Construction Contract
Within 20 business days after City issues building
permit
9 Commence Construction
Within 3 months after City issues building permit
10
Substantial Completion of Construction Within 9 months after commencing construction
5010901.2