HomeMy WebLinkAboutReso 167-2024 (24-1069)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 ___________, 2024 (the “Effective
Date”), by and between the CITY OF SOUTH SAN FRANCISCO, a California municipal
corporation (“Purchaser”), and [TIANYI ZHANG] (“Seller”). Seller and Purchaser are
individually referred to herein as a “Party,” and collectively referred to herein as the “Parties.”
RECITALS
A. Seller is the owner of a parcel of real property located at 701 Spruce Avenue,
South San Francisco, California, designated as APN No. 012-131-040 (the “Current Parcel”).
The Current Parcel is approximately 40,974 square feet in size. The Current Parcel is improved
with a single family home, and a portion of the Current Parcel is used as a hiking trail (the
“Trail”). The Current Parcel is more particularly described in Exhibit “A” attached hereto and
incorporated herein by this reference.
B. Purchaser desires to acquire from Seller an approximately ______ square foot
portion of the Current Parcel which includes a portion of the Trail. The Parties desire for Seller
to subdivide the Current Parcel into two parcels, one of which would include the Trail (the
“Acquisition Parcel”), and the other of which would include the remainder of the Current Parcel
(the “Remainder Parcel”). The approximate boundaries of the Acquisition Parcel and
Remainder Parcel are shown on the Parcel Map attached hereto as Exhibit “B” and incorporated
herein by this reference. The Parties desire to establish the Acquisition Parcel as a separate legal
parcel and thereupon for Seller to sell the Acquisition Parcel to Purchaser, on the terms and
conditions set forth in 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 Purchaser 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.
2. PURCHASE AND SALE
2.1 Agreement to Buy and Sell. Subject to the terms and conditions set forth
herein, Seller hereby agrees to sell the Acquisition Parcel to Purchaser, and Purchaser hereby
agrees to purchase the Acquisition Parcel from Seller. The Acquisition Parcel shall include all of
Seller’s right, title and interest in and to all rights, privileges, tenements, hereditaments, rights-of-
way, easements, licenses, appurtenances, mineral rights, development rights, permits, approvals,
air rights, and water and riparian rights belonging or appertaining to the Acquisition Parcel or any
improvements thereon.
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2.2 Purchase Price. The purchase price for the Acquisition Parcel to be paid
by Purchaser to Seller (the “Purchase Price”) is Six Hundred Thousand Dollars ($600,000). The
Purchase Price will be paid in immediately available funds to Seller on the Outside Closing Date
(defined below) through the Escrow.
2.3 Subdivision of Current Parcel. Seller shall, at Seller’s sole cost and
expense, prepare all plans and drawings, make all applications and take all actions necessary for
City of South San Francisco (“City”) approval of a parcel map, lot line adjustment or similar action
as necessary to divide the Current Parcel into the Acquisition Parcel and the Remainder Parcel.
Purchaser agrees to waive or pay all City application and processing fees that would normally be
charged for the subdivision of the Current Parcel by parcel map, lot line adjustment or similar
action. City’s approval of the subdivision of the Current Parcel is a condition precedent to Closing.
3. ESCROW
3.1 Escrow Account. The Parties shall open an escrow account (the “Escrow”)
with __________________ Title Insurance Company (the “Escrow Holder”). Escrow Holder
shall perform all Escrow and title services in connection with this Agreement.
3.2 Deposit of Agreement. Within three (3) days after the Effective Date, the
Parties will deposit into Escrow a fully executed copy of this Agreement, or executed counterparts
thereto.
4. DUE DILIGENCE AND PRE-CLOSING REQUIREMENTS
4.1 Condition of Title/Preliminary Report. In connection with the
subdivision of the Current Parcel, _________________ Title Insurance Company (the “Title
Agent”) shall deliver to Purchaser a Preliminary Report for the Acquisition Parcel (the
“Preliminary Report”). Purchaser shall have thirty (30) days after receipt to approve the
Preliminary Report in writing (the “Purchaser Title Notice”), provided that Seller shall cause all
existing deeds of trust, mechanic’s liens and other financial liens and encumbrances to be released
and removed from title to the Acquisition Parcel concurrently with or prior to the Closing. If there
are any changes to the Preliminary Report prior to Closing, Purchaser shall have fifteen (15) days
after receipt of the revised Preliminary Report to approve such changes. The exceptions to the
Preliminary Report that are not disapproved by Purchaser in the Purchaser Title Notice are referred
to herein as the “Permitted Exceptions.”
4.2 Due Diligence Contingency Period. Purchaser will have _________ (__)
days from the Effective Date (the “Due Diligence Contingency Period”) to complete physical
inspections of the Acquisition Parcel and due diligence related to the purchase of the Acquisition
Parcel.
4.3 Seller Delivery of Due Diligence Materials. Within five (5) days after the
Effective Date, Seller shall provide to Purchaser copies of all plans, studies, records, reports,
governmental notices and approvals, and other written materials related to the use, occupancy or
condition of the Acquisition Parcel that Seller has in its possession, including without limitation
environmental, geotechnical, engineering and land surveys, if any.
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4.4 Natural Hazard Disclosure. Purchaser and Seller acknowledge that Seller
is required to disclose if any of the Acquisition Parcel lies within the following natural hazard
areas or zones: (i) a special flood hazard area designated by the Federal Emergency Management
Agency; (ii) an area of potential flooding; (iii) a very high fire hazard severity zone; (iv) a wild
land area that may contain substantial forest fire risks and hazards; (v) an earthquake fault or
special studies zone; or (vi) a seismic hazard zone. Purchaser acknowledges that Seller intends to
employ the services of an independent natural hazard disclosure company to examine the maps
and other information specifically made available to the public by government agencies and to
report the results of its examination to Purchaser in writing.
4.5 Inspection of Acquisition Parcel. During the Due Diligence Contingency
Period, Purchaser, its agents, contractors and employees shall have the right to enter upon the
Acquisition Parcel for the purpose of making inspections, surveying the Acquisition Parcel, and to
perform Phase I and Phase II environmental site analyses, geotechnical tests, structural engineering
studies, surveys and other physical testing of the Acquisition Parcel at Purchaser’s sole risk, cost
and expense. All of such entries upon the Acquisition Parcel shall be at reasonable times during
normal business hours and after at least twenty-four (24) hours’ prior notice to Seller, and Seller
or Seller’s agent shall have the right to accompany Purchaser during any activities performed by
Purchaser on the Acquisition Parcel. At Seller’s request, Purchaser shall provide Seller with a
copy of the results of any tests and inspections made by Purchaser, at no cost to Seller. If any
inspection or test disturbs the Acquisition Parcel, Purchaser will restore the Acquisition Parcel to
the substantially the same condition as existed before the inspection or test. Purchaser shall defend,
indemnify and hold Seller and the Acquisition Parcel harmless from and against any and all losses,
costs, damages, claims or liabilities, including but not limited to, mechanic’s and materialmen’s
liens, arising out of or in connection with Purchaser’s inspection of the Acquisition Parcel as
allowed pursuant to this Section 4.5. The provisions of this Section 4.5 shall survive the Closing
or any earlier termination of this Agreement.
4.6 Satisfaction of Due Diligence Contingency. Purchaser shall have the
right, in its sole and absolute discretion, to terminate this Agreement for any reason, or no reason,
until the expiration of the Due Diligence Contingency Period. If Purchaser elects to terminate this
Agreement, Purchaser shall provide written notice to Seller prior to the expiration of the Due
Diligence Contingency Period of Purchaser’s election to terminate the Agreement. Upon provision
of such notice to Seller, this Agreement will terminate, and all amounts deposited by Purchaser
into Escrow will be returned to Purchaser, and neither Party will have any further rights or
obligations hereunder except those which expressly survive the termination of this Agreement.
5. CLOSING AND PAYMENT OF PURCHASE PRICE
5.1 Closing. The closing (“Closing” or “Close of Escrow”) will occur no later
than thirty (30) days after the recordation of the parcel map that creates the Acquisition Parcel or
[one hundred eighty (180) days from the Effective Date], whichever occurs first (“Outside
Closing Date”). In the event that Closing has not occurred on or prior to the Outside Closing Date,
either Party not then in default may, upon five (5) days advance written notice to the other Party,
terminate this Agreement and the Escrow. As long as neither Party so elects to terminate this
Agreement and the Escrow, Escrow Holder shall close the Escrow as soon as possible. Upon any
such termination of this Agreement, neither Party shall have any further rights or obligations
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hereunder, except for the rights and obligations expressly provided to survive termination of this
Agreement.
5.2 Purchaser’s Conditions to Closing. Purchaser's obligation to purchase the
Acquisition Parcel is subject to the satisfaction of all of the following conditions or Purchaser's
written waiver (in Purchaser’s sole discretion) of such conditions on or before the Outside Closing
Date:
(a) Expiration of the Due Diligence Contingency Period with no
exercise by Purchaser of its rights under this Agreement to terminate this Agreement.
(b) Seller has deposited into the Escrow a fully executed “Grant Deed”
in the form of Exhibit “C” hereof, a “Non-Foreign Affidavit” (as defined in Section 5.5(a) below),
a “California Certificate” (as defined in Section 5.5(a) below), and all other documents to be
submitted by Seller pursuant to this Agreement, all duly executed by Seller (as appropriate).
(c) The lot line adjustment, parcel map or other action for the
subdivision of the Acquisition Parcel as required pursuant to Section 2.4 hereof has been duly
approved and recorded in the official records of the County of San Mateo.
(d) Seller's representations and warranties herein are true and correct in
all material respects as of the Closing Date.
(e) Seller shall have removed all of Purchaser’s objections to title as
required pursuant to Section 5.4 hereof, and the Title Company shall be irrevocably committed to
issue a CLTA or ALTA Owner’s Title Policy to Purchaser, together with any endorsements
requested by Purchaser, effective as of the Closing Date, insuring title to Purchaser in the full
amount of the Purchase Price subject only to the Permitted Exceptions.
(f) Seller has performed all obligations to be performed by Seller
pursuant to this Agreement, and Seller is not in Default as of the Closing Date.
(g) Possession of the Acquisition Parcel will be delivered to Purchaser
immediately upon the Close of Escrow.
(h) There shall be no litigation or administrative proceeding pending or
threatened with respect to the Acquisition Parcel as of the Closing, nor any moratoria which would
adversely impact the use or value of the Acquisition Parcel.
5.3 Seller’s Conditions to Closing. The Close of Escrow and Seller's
obligation to sell and convey the Acquisition Parcel to Purchaser 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 Outside Closing Date:
(a) Purchaser has deposited into the Escrow the full amount of the
Purchase Price, and all other costs required by this Agreement to be paid by Purchaser.
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(b) Purchaser has deposited into the Escrow a fully executed
Acceptance of Grant Deed, and all other documents to be submitted by Purchaser pursuant to this
Agreement, all duly executed by Purchaser (as appropriate).
(c) Purchaser's representations and warranties set forth herein are true
and correct in all material respects as of the Closing Date.
(d) Purchaser has performed all obligations to be performed by
Purchaser pursuant to this Agreement on or before the Closing Date.
5.4 Conveyance of Title. Seller shall deliver fee simple title to the Acquisition
Parcel to Purchaser at the Closing, subject only to the Permitted Exceptions. The Acquisition
Parcel shall be conveyed by Seller to Purchaser in an “as is” condition, with no warranty, express
or implied, by Seller as to the physical condition of the Acquisition Parcel including, but not
limited to, the soil, its geology, or the presence of known or unknown faults or Hazardous
Substances on, in, under and adjacent to the Acquisition Parcel, the air, soil, and groundwater.
5.5 Deliveries at Closing.
(a) Deliveries by Seller. Seller shall deposit into the Escrow for
delivery to Purchaser at Closing: (i) a grant deed, substantially in the form of Exhibit “C” attached
hereto and incorporated herein (the “Grant Deed”); (ii) an affidavit or qualifying statement which
satisfies the requirements of paragraph 1445 of the Internal Revenue Code of 1986, as amended,
and any regulations thereunder (the “Non-Foreign Affidavit”); and (iii) a California Franchise
Tax Board Form 590 to satisfy the requirements of California Revenue and Taxation Code
Sections 18805(b) and 26131 (the “California Certificate”).
(b) Deliveries by Purchaser. No less than one (1) business day prior to
the Close of Escrow, Purchaser shall deposit into Escrow (i) the acceptance of the Grant Deed, and
(ii) immediately available funds in the amount which is equal to the Purchase Price, the Escrow
fees and recording fees, and the cost of the Title Policy and endorsements.
(c) Closing. Upon Closing, Escrow Holder shall: (i) record the Grant
Deed; (ii) disburse to Seller the Purchase Price; (iii) deliver to Purchaser the Non-Foreign
Affidavit, the California Certificate, and a conformed copy of the original recorded Grant Deed;
(iv) pay any expenses payable through Escrow; (v) distribute to itself the payment of Escrow fees
and expenses required hereunder, and (vi) direct the Title Company to issue the Title Policy to
Purchaser.
(d) Closing Costs.
(i) Seller will pay:
(1) All costs associated with removing any title
exceptions which are disapproved by Purchaser;
(2) All costs of Seller’s attorneys’ fees; and
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(3) Seller’s property taxes and assessments, if
applicable.
(ii) Purchaser will pay:
(1) All Escrow fees, recording fees (if any), and all
documentary transfer taxes (if any); and
(2) The cost of the Owner’s Policy of Title Insurance and
the cost of any title endorsements which are requested by the Purchaser.
If, as a result of no fault of Purchaser or Seller, Escrow fails to close, Purchaser shall pay
all of Escrow Holder's fees and charges; however, if the transaction fails to close as the result of
the default of either party, then such defaulting party shall bear all Escrow Holder's fees and
expenses. Purchaser shall bear all costs associated with its due diligence inspections regarding
the Acquisition Parcel. All other costs and expenses shall be allocated between Purchaser and
Seller in accordance with the customary practice of the County of San Mateo for transactions of
this type.
(e) Proration of Taxes. At the Close of Escrow, Seller shall be
responsible for a prorated share of property taxes and assessments due through the Close of
Escrow. In the event that, prior to the Close of Escrow, Seller has paid the installment of property
taxes and assessments applicable to the current period, there shall be no proration of property
taxes and assessments, and Seller shall be responsible for applying for a refund of any overpayment
of property taxes and assessments as a result of the acquisition of the Acquisition Parcel by a public
agency. In the event any real property taxes are due and unpaid at the Close of Escrow for any
periods prior to the Close of Escrow, Escrow Holder is hereby authorized and instructed to pay
such taxes from proceeds due the Seller at the Close of Escrow. At the Close of Escrow, the
Purchaser will file a Preliminary Change of Ownership Report and any necessary documentation
with the County Assessor-County Clerk-Recorder for the property tax exemption, and shall be
responsible for coordinating with Escrow Holder for the payment of any periods occurring from
and after the Close of Escrow (if any are due or payable). Seller shall have the right, after Close of
Escrow, to apply for a refund to the County Tax Collector/Assessor outside of Escrow for any
overpayments, and if eligible, to receive such refund.
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 Purchaser that the statements below in this
Section 6.1 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 Purchaser in
writing and Purchaser will have ten (10) days thereafter to determine if Purchaser wishes to
proceed with Closing.
(a) Authority. 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 Purchaser is a valid and binding agreement of Seller.
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All the instruments, agreements and other documents executed by Seller that are to be delivered
to Purchaser at Closing are and at the time of Closing will be duly authorized, executed and
delivered by Seller, and will be the valid and binding agreements and obligations of Seller
enforceable in accordance with their respective terms.
(b) Encumbrances. Seller has not alienated, encumbered, transferred,
mortgaged, assigned, pledged, or otherwise conveyed its interest in the Acquisition Parcel 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 Acquisition Parcel, except ______________________________________. Seller will be
responsible for obtaining any required release or reconveyance of such encumbrance prior to the
Closing. Seller will not, directly or indirectly, alienate, encumber, transfer, mortgage, assign,
pledge, or otherwise convey its interest in the Acquisition Parcel or any portion thereof prior to
the Close of Escrow, as long as this Agreement is in force.
(c) Other Agreements. There are no agreements affecting the
Acquisition Parcel except those which have been disclosed by Seller to Purchaser. There are no
agreements which will be binding on the Purchaser or the Acquisition Parcel after the Close of
Escrow which cannot be terminated on thirty (30) days prior written notice.
(d) Leases. Between the Effective Date and the earlier of the Closing
or the termination of this Agreement, Seller shall not enter into any new leases and Seller shall
terminate any existing leases of any portion of the Acquisition Parcel.
(e) Title. Except as disclosed herein, and in the Preliminary Report,
Seller has no actual knowledge of any unrecorded or undisclosed legal or equitable interest in the
Acquisition Parcel owned or claimed by anyone other than Seller.
(f) Litigation. There is no pending, or, to Seller’s actual knowledge,
threatened litigation, administrative proceeding or other legal or governmental action with respect
to the Acquisition Parcel.
(g) Disclosure. Seller has disclosed all material facts with respect to the
Acquisition Parcel of which Seller has actual knowledge.
(h) Non-Foreign Person. Seller is not a foreign person as defined in
Internal Revenue Code section 1445(f)(3).
(i) Acknowledgement of Trail Activities and Release. Seller
understands and acknowledges that the Trail is currently used by the public, and will be used by
the public in the future, as part of the network of trails in the Sign Hill open space area of the City.
Seller understands and acknowledges that the Purchaser has represented to Seller that Purchaser
may make further improvements to the Trail upon Purchaser’s acquisition of the Acquisition
Parcel, and that Purchaser will promote and encourage public use of the Trail. Upon and after
Purchaser’s acquisition of the Acquisition Parcel, Seller agrees not to challenge Purchaser’s right
to construct improvements upon the Trail, maintain the Trail, and facilitate and encourage public
use of the Trail. Upon and after Purchaser’s acquisition of the Acquisition Parcel, Seller hereby
releases, acquits and forever discharges the City and its officers, employees and agents from any
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and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and
compensation, arising from the Trail, past and future public use of the Trail, past and future City
construction of improvements on the Trail, and past and future City maintenance activities on the
Trail, including without limitation any claims for takings, inverse condemnation, trespass, public
and private nuisance. Seller makes no representations to Purchaser herein with respect to whether
the City or any members of the public have any prescriptive easements, adverse possession rights,
or any other real property or other legal rights to or over the Trail, rights to use or access the Trail,
or any other matters with respect to legal rights to or over the Trail. Seller’s obligations pursuant
to this paragraph (i) shall remain in effect after the Closing.
Seller understands and agrees that, with respect to the release provided in this Section
6.1(i), Seller waives all rights under Section 1542 of the Civil Code of California, 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.”
______________ _______________
Seller’s Initials Seller’s Initials
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
Purchaser’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 Purchaser’s Representations, Warranties and Covenants. In addition
to the representations, warranties and covenants of Purchaser contained in other sections of this
Agreement, Purchaser 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 Purchaser’s actual
knowledge any such statement becomes untrue prior to Closing, Purchaser shall so notify Seller in
writing and Seller shall have ten (10) days thereafter to determine if Seller wishes to proceed with
Closing.
(a) Purchaser is a California city and municipal corporation, in good
standing under the laws of the State of California. Purchaser 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 Purchaser, and upon delivery to and execution by Seller shall be a valid and
binding agreement of Purchaser.
(b) Purchaser 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.
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(c) Purchaser agrees to take all actions necessary to terminate any
easement the City has over the Remaining Parcel for future street purposes, as shown on the
Sterling Terrace No. 3 Map recorded approximately August 1949. Purchaser’s obligations
pursuant to this paragraph (c) shall remain in effect after the Closing.
(d) Purchaser agrees to cooperate with and assist Seller in Seller’s
efforts to terminate, modify, or be released from the water easement in favor of the City of San
Francisco which encumbers the Remaining Parcel, as recorded September 26, 1935, provided that
Purchaser shall not be obligated to make any monetary payments in connection therewith.
Purchaser’s obligations pursuant to this paragraph (d) shall remain in effect after the Closing.
(e) Upon and after the Closing, Purchaser shall be responsible for any
construction or reconstruction of improvements to the Trail which are desired by Purchaser, and
for ongoing maintenance of the Trail, at the sole expense of Purchaser.
The truth and accuracy of each of the representations and warranties, and the
performance of all covenants of Purchaser contained in this Agreement are conditions precedent
to Seller’s obligation to proceed with the Closing hereunder.
7. ENVIRONMENTAL OBLIGATIONS
7.1 Seller Responsibilities. California Health & Safety Code Section 25359.7
requires owners of 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 Acquisition Parcel. Seller shall disclose to
Purchaser the actual knowledge Seller has with respect to the deposit of Hazardous Substances on
the Acquisition Parcel, if any. Seller agrees to make all disclosures required by law within ten
(10) days after the Effective Date. Seller's responsibility and obligations of this section are solely
limited to Seller's knowledge of, or Seller's reasonable cause to believe, Hazardous Substances that
have been stored upon or released upon or under the Acquisition Parcel.
7.2 As Is Sale. Notwithstanding anything to the contrary in this Agreement,
except for Seller’s representations and warranties in Section 6.1 hereof (“Seller’s Warranties”),
this sale is made and will be made without representation, covenant, or warranty of any kind by
Seller. As a material part of the consideration for this Agreement, Purchaser agrees to accept the
Acquisition Parcel on an “as is” and “where is” basis, with all faults, and without any
representation or warranty, all of which Seller hereby disclaims, except for Seller’s Warranties.
Except for Seller’s Warranties, no warranty or representation is made by Seller as to fitness for
any particular purpose, merchantability, design, quality, condition, operation or income,
compliance with drawings or specifications, absence of defects, absence of hazardous or toxic
substances, hazardous materials, hazardous wastes, absence of faults, flooding, or compliance with
laws and regulations including, without limitation, those relating to health, safety, and the
environment. Purchaser acknowledges that it has entered into this Agreement with the intention
of making and relying upon its own investigation of the physical, environmental, economic use,
compliance, and legal condition of the Acquisition Parcel and that Purchaser is not now relying,
and will not later rely, upon any representations and warranties made by Seller or anyone acting
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or claiming to act, by, through or under or on Seller’s behalf concerning the Acquisition Parcel,
except for Seller’s Warranties, Seller’s representations and warranties set forth in Section 6.1
hereof, and any other representations and warranties of Seller set forth in this Agreement. The
provisions of this Section 7.2 shall survive indefinitely any closing or termination of this
Agreement.
7.3 Hazardous Substances. For purposes of this Agreement, “Hazardous
Substances” means all of the following:
(a) Any substance, product, waste or other material of any nature
whatsoever which is or becomes defined, listed or regulated as a “hazardous substance”,
“hazardous material”, “hazardous waste”, “toxic substance”, “solid waste” or similarly defined
substance, product, waste or other material pursuant to any Environmental Law (which
Environmental Law shall include any and all regulations in the Code of Federal Regulations or
any other regulations implemented under the authority of such Environmental Law), including all
of the following and their state equivalents or implementing laws: (i) the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601, et seq. (“CERCLA”);
(ii) the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et. seq.; (iii) those substances
listed on the United States Department of Transportation Table (49 C.F.R. 172.01 and amendments
thereto); (iv) The Resource Conservation and Recovery Act, 42 U.S.C. §6901 et. seq. (“RCRA”);
(v) the Toxic Substances Control Act, 15 U.S.C. §2601 et. seq.; (vi) the Clean Water Act, 33 U.S.C.
§1251 et. seq.; (vii) the Clean Air Act, 42 U.S.C. §7401 et. seq.; and (viii) any other Federal, state
or local law, regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in
effect; or any substance, product, waste or other material of any nature whatsoever which may give
rise to liability under any of the above laws or under any statutory or common law theory based
on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions
of a state or Federal court.
(b) Any Environmental Law, petroleum, any petroleum by-products,
waste oil, crude oil or natural gas;
(c) Any material, waste or substance that is or contains asbestos or
polychlorinated biphenyls, or is radioactive, flammable or explosive;
(d) Lead based paint and other forms of lead and heavy metals, mold,
grease tanks, waste storage areas, batteries, light bulbs, refrigerators, freezers, appliances, heating
and cooling systems, thermostats, electronic devices, electrical switches, gauges, thermometers,
aerosol cans, cleaning products, formaldehyde, polyurethane, pressure treated wood containing
arsenic, and building materials containing PCBs or volatile organic compounds, and
(e) Any other substance, product, waste or material defined or to be
treated or handled as a Hazardous Substance pursuant to the provisions of this Agreement.
7.4 Environmental Law(s). For purposes of this Agreement, “Environmental
Law” means all of the following means any federal, state, or local laws, ordinances, rules,
regulations, requirements, orders, formal guidelines, or permit conditions, in existence as of the
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Effective Date of this Agreement or as later enacted, promulgated, issued, modified or adopted,
regulating or relating to Hazardous Substances, and all applicable judicial, administrative and
regulatory judgments and orders and common law, including those relating to industrial hygiene,
public safety, human health, or protection of the environment, or the reporting, licensing,
permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage,
discharge, release, disposal, transportation, investigation or remediation of Hazardous Substances.
Environmental Laws shall include, without limitation, all of the laws listed under the definition of
Hazardous Substances.
8. REMEDIES
(a) Seller Default. In the event of a breach or default under this Agreement by
Seller, if such breach or default occurs prior to Close of Escrow, Purchaser reserves the right to
either (a) seek specific performance or actual damages 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 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 Purchaser
any and all documents and sums placed into the Escrow by Purchaser, 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.
(b) Purchaser Default. In the event of a breach or default under this Agreement
by Purchaser, if such breach or default occurs prior to Close of Escrow, Seller reserves the right to
either (a) seek specific performance or actual damages from Purchaser, or (b) to do any of the
following: (i) waive the breach or default and proceed to close as provided herein; (ii) extend the
time for performance and the Closing until Purchaser is able to perform; or (iii) to terminate this
Agreement upon written notice to Purchaser, whereupon Purchaser shall cause Escrow Holder to
return to Purchaser any and all documents and sums placed into the Escrow by Purchaser, 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..
9. BROKERS. Purchaser represents that no real estate broker has been retained by
Purchaser in the sale of the Acquisition Parcel or the negotiation of this Agreement. Seller
represents that no real estate broker has been retained by Purchaser in the sale of the Acquisition
Parcel or the negotiation of this Agreement. Each Party shall indemnify, hold harmless and defend
the other Party from any and all claims, actions and liability for any breach of the preceding, and
any commission, finder’s fee, or similar charges arising out of the indemnifying Party’s conduct.
10. MISCELLANEOUS
10.1 Attorneys’ Fees. If any Party employs counsel to enforce or interpret this
Agreement, including the commencement of any legal proceeding whatsoever, the prevailing Party
shall be entitled to recover its reasonable attorneys’ fees and court costs (including service of
process costs, 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
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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.
10.2 Interpretation. This Agreement has been negotiated at arm’s length, 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.
10.3 Survival. All indemnities, covenants, representations and warranties
contained in this Agreement shall survive Close of Escrow.
10.4 Assignment. Absent an express signed written agreement between the
Parties to the contrary, neither Seller nor Purchaser may assign its rights or delegate its duties
under this Agreement without the express written consent of the other, which consent may be
withheld for any reason. 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.
10.5 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.
10.6 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California. Venue for any dispute arising hereunder shall
be in the Superior Court of San Mateo County for state law actions or the Northern District of
California for federal law actions.
10.7 Integrated Agreement; Modifications. This Agreement contains all the
agreements of the Parties concerning the subject hereof and 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. Any modifications to this Agreement must be in
writing and signed by Seller and Purchaser.
10.8 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, and the remainder of
this Agreement shall remain in full force and effect unless the invalidated provision materially
alters the consideration being exchanged between Seller and the Purchaser. However, if any
provision or part thereof of this Agreement is stricken in accordance with the provisions of this
Section, but the stricken provision can be replaced with a legal, enforceable and valid provision in
keeping with the intent of the Parties as expressed herein and which fairly restores the
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consideration lost as a result of the stricken provision or stricken part thereof, then this Agreement
shall remain in full force and effect.
10.9 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 (e.g., FedEx) 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:
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To Purchaser: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94083
Attn: ________________
With copy to: City Attorney
To Seller: Tianyi Zhang
701 Spruce Avenue
South San Francisco, CA 94080
To Escrow Holder: ________________________
________________________
________________________
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.
10.10 Time. Time is of the essence to the performance of each and every
obligation under this Agreement.
10.11 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 legal holiday,
the time for performance will be extended to 5:00 p.m. on the next business day.
10.12 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.
10.13 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.
10.14 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 a consent to any other subsequent act or omission or to
waive the requirement for consent to be obtained in any future or other instance.
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10.15 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.
10.16 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.
10.17 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.
10.18 Purchaser Approvals. Whenever this Agreement calls for Purchaser
approval, consent, extension or waiver, the written approval, consent, or waiver of the Purchaser’s
City Manager or his or her designee(s) shall constitute the approval, consent, extension or waiver
of the Purchaser, without further authorization required from the Purchaser’s City Council. The
Purchaser hereby authorizes the City Manager and his or her designee(s) to sign documents, to
deliver any such approvals, consents, or extensions or waivers as are required by this Agreement,
and to waive requirements under this Agreement, on behalf of the Purchaser.
[Signatures on following pages]
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IN WITNESS WHEREOF, this Agreement is executed by Purchaser and Seller as of the
Effective Date.
Purchaser:
CITY OF SOUTH SAN FRANCISCO,
a California municipal corporation
By:________________________________
Sharon Ranals, City Manager
Attest:
___________________________________
Rosa Govea Acosta, City Clerk
Reviewed as to Form:
___________________________________
Sky Woodruff, City Attorney
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Seller:
By:________________________________
By:________________________________
2
EXHIBIT A
LEGAL DESCRIPTION OF CURRENT PARCEL
That real property located in the City of South San Francisco, County of San Mateo, State of
California, described as follows:
Lot 4 in Block 10, as shown on that certain map entitled “Sterling Terrace No. 3, South San
Francisco, San Mateo County, California,” filed in the office of the County Recorder of San
Mateo County, State of California, on August 10, 1949, in Book 30 of Maps at Page 39.
APN: 012-131-040
3
EXHIBIT B
ACQUISITION PARCEL MAP
[To Be Inserted]
4
EXHIBIT C
Recording Requested by
and When Recorded, Return to:
City of South San Francisco
400 Grand Avenue
South San Francisco, California 94083
Attn: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Exempt from Documentary Transfer Tax
Per Rev. & Tax. Code § 11922
Governmental Agency acquiring title
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, as of
_________________, 202_, [TIANYI ZHANG] hereby grants to the City of South San Francisco,
a California municipal corporation, all that real property located in the City of South San Francisco,
County of San Mateo, State of California and more particularly described in Attachment No. 1
hereto and incorporated in this Grant Deed by this reference.
By: __________________________________
By: __________________________________
5
Attachment No. 1 to Grant Deed
LEGAL DESCRIPTION
That real property located in the City of South San Francisco, County of San Mateo, State of
California, described as follows:
6
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed dated
_________________, 202_ from [TIANYI ZHANG] (“Grantor”) to the City of South San
Francisco (“Purchaser”), is hereby accepted on behalf of the Purchaser by the undersigned
officer or agent pursuant to authority conferred by resolution of the City Council of Purchaser
adopted on __________________________, and that the Purchaser consents to recordation of
the Grant Deed in the official records of San Mateo County by its duly authorized officer.
Dated: _________________, 202__
CITY OF SOUTH SAN FRANCISCO
By: ________________________________
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A notary public or other officer completing
this certificate verifies only the identity of
the individual who signed the document to
which this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California )
) ss.
County of _____________ )
On_____________________, 20____ before me, _____________________, a Notary Public, in
and for said State and County, personally appeared _______________________, who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________
NOTARY PUBLIC
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