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HomeMy WebLinkAboutReso 35-2002 RESOLUTION NO. 35-2002 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT WITH MISSION COLMA LLC (TRUMARK) RELATED TO PROPERTY LOCATED ALONG MISSION ROAD IN COLMA WHEREAS, the City owns a narrow strip of property located in the Town of Colma adjacent to Mission Road; and WHEREAS, the City desires to sell said property to Mission Colma, LLC, for inclusion in a residential project Mission Colma, LLC is constructing in the Town of Colma; and WHEREAS, the City will receive fair market value for the property. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco hereby approves the Purchase and Sale Agreement between the City of South San Francisco and Mission Colma, LLC. The City Council authorizes the City Manager to sign the Purchase and Sale agreement and the Grant Deed on behalf of the City of South San Francisco. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the 8th day of May 2002 by the following vote: AYES: Councilmembers Joseph A. Fernekes, Raymond L. Green and Karvl Matsumoto, Mayor Pro Tem Pedro Gonzalez and Mayor Eugene R. Mullin NOES: None. ABSTAIN: None. ABSENT: None. ATTEST: City Clerk PURCHASE AND SALE AGREEMENT THIS AGREEMENT, dated as of the __ day of April, 2002 (the "Effective Date"), is made by and between THE CITY OF SOUTH SAN FRANCISCO, a municipal corporation ("Seller"), and MISSION COLMA LLC, a California limited liability company ("Purchaser"). RECITALS: WHEREAS, Seller is the owner of certain real property located in Colma, alongside Mission Road, more particularly described in Exhibit A, which is incorporated by reference and attached hereto; and WHEREAS, Seller desires to sell certain real property situated in Colma, California, and Purchaser desires to purchase such real property; Now, THEREFORE, in consideration of the foregoing, of the covenants, promises and undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser mutually agree as follows: 1. THE PROPERTY 1.1 Description Subject to the terms and conditions of this Agreement, and for the consideration herein set forth, Seller agrees to sell and transfer, and Purchaser agrees to purchase and acquire, the following (collectively, "Property"): (a) Certain land ("Land") located in the Town of Colma, County of San Mateo, State of California, and more specifically described in Exhibit A attached hereto; and (b) All easements, hereditaments, and appurtenances belonging to or inuring to the benefit of Seller and pertaining to the Land, if any; 1.2 "As-Is" Purchase Purchaser acknowledges and agrees that the Property is being sold in an "As IS" condition and "WITH ALL FAULTS" as of the date of the closing of the purchase and sale of the Property (the "Closing"). 1.3 Agreement to Convey Seller agrees to convey, and Purchaser agrees to accept, title to the Property by grant deed in the form attached hereto as Exhibit B. 1.4 Purchase Conditioned Upon Acquisition of Contiguous Parcel Purchase and Sale Agreement Page 1 of 8 Purchaser and Seller agree that Purchaser's agreement to purchase the Property is expressly conditioned upon the purchaser by Purchaser of the land contiguous to the Properly and more particularly described in Exhibit "C" ("Parcel B"), and that should Purchaser not complete the purchase of Parcel B, Purchaser shall have no obligations under this Agreement, except to pay any escrow fees that may have accrued. 2. PRICE AND PAYMENT 2.1 Purchase Price The total purchase price for the Property (the "Purchase Price") is Sixty-Two Thousand Five Hundred Ninety-Four Dollars ($62,594.00). Purchaser also shall pay Five Thousand Dollars ($5,000.00) toward traffic improvements at the intersection of McLellan Drive and Mission Road ("Additional Purchase Price"). 2.2 Payment Payment of the Purchase Price and Additional Purchase Price is to be made in cash at Closing. 2.3 Escrow An escrow shall be opened to complete the sale of the Property pursuant to this Agreement at First American Title Insurance Company, 555 Marshall Street, Redwood City, California 94063 ("Title Company") 2.4 Closing Payment of the Purchase Price and the Closing hereunder will take place pursuant to an escrow closing on August 5, 2002 or such earlier date as may be mutually agreed upon by Seller and Purchaser (the "Closing Date"). The closing shall take place at the offices of First American Title Insurance Company, 555 Marshall Street, Redwood City, California 94063 ("Title Company") at 10:00 a.m. local time on the Closing Date or at such other time and place as may be agreed upon in writing by Seller and Purchaser. 3. REPRESENTATIONS AND WARRANTIES 3.1 By Seller Seller represents and warrants to Purchaser that Seller is the owner of fee simple title to the Land, is a municipal corporation, has duly authorized the execution and performance of this Agreement, and such execution and performance will not violate any material term of its charter or other governing documents. This Agreement is the valid and binding obligation of Seller. 3.2 By Purchaser Purchase and Sale Agreement Page 2 of 8 Purchaser represents and warrants to Seller that Purchaser is a limited liability company duly organized and validly existing under the laws of the State of California, has duly authorized the execution and performance of this Agreement, and such execution and performance will not violate any material term of its organizational documents. This Agreement is the valid and binding obligation of Purchaser. 3A. PURCHASER'S RIGHT OF ENTRY At any time, and from time to time, prior to the Closing Date, Purchaser, its agents, contractors and subcontractors, shall have the right to enter onto the Land for the purpose of making such investigations, studies, tests and reviews as Purchaser may deem appropriate in connection with Purchaser's purchase of the Property. Purchaser shall indemnify and hold Seller harmless from and against any losses, damages, costs or expenses incurred by Seller in connection with Purchaser's entry on the Property prior to the Closing Date. Purchaser shall repair any damage to the Property as a result of or caused by the entry by Purchaser or its agents or employees, and Purchaser shall restore the Property to the condition existing on the date immediately prior to Purchaser's entry onto the Property. 4. PURCHASER'S TITLE POLICY Purchaser's obligations hereunder are expressly conditioned upon the irrevocable and unconditional commitment of Title Company at Closing to issue to Purchaser an ALTA Owner's Policy of Title Insurance (1970, Form B) insuring Purchaser as the owner of fee simple title to the Property, subject only to such matters and exceptions as may be approved by Purchaser in writing, and containing such endorsements as Purchaser shall require (the "Title Policy"). This condition is for the sole benefit of Purchaser. If for any reason this condition is not satisfied at Closing, Purchaser shall have the right to waive such condition and proceed to close the transaction or to terminate this Agreement by written notice to Seller, in which event this Agreement shall terminate and neither party shall have any further rights or obligations hereunder. 5. COSTS AND PRORATIONS 5.1 Closing Costs Purchaser will pay the following costs of closing this transaction: (a) Any escrow fees; (b) Any real estate transfer, stamp or documentary taxes; (c) The cost of the Title Policy; and (d) Any recording fees. 5.2 Taxes Purchase and Sale Agreement Page 3 of 8 General real estate taxes and special assessments, if any, relating to the Property shall be prorated as of the Closing Date. 6. NOTICES Any notice required or permitted to be given hereunder shall be deemed to be given when hand delivered or one (1) business day after pickup by Federal Express, UPS or similar overnight express service, in either case addressed to the parties at their respective addresses referenced below: If to Seller: City of South San Francisco City Hall, Attn: Mr. Michael Wilson, City Manager 400 Grand Avenue South San Francisco, CA 94080 with a copy to: Meyers, Nave, Riback, Silver & Wilson Attn: Steven T. Mattas, City Attorney 777 Davis Street, Suite 300 San Leandro, CA 94577 If to Purchaser: Mission Colma LLC Attn: Garrett Hinds 4185 Blackhawk Plaza Circle, Suite 200 Danville, CA 94506-4668 with a copy to: Berliner Cohen Attn: Nadia Holober 10 Almaden Blvd,, 11th Floor San Jose, CA 95113-2233 or in each case to such other address as either party may from time to time designate by giving notice in writing to the other party. 7. CLOSING AND ESCROW 7.1 Escrow Instructions Upon execution of this Agreement, the parties shall deliver an executed counterpart of this Agreement to Title Company to serve as the instructions to Title Company as the escrow holder for consummation of the transaction contemplated herein. Seller and Purchaser agree to execute such additional and supplementary escrow instructions as may be appropriate to enable Title Company to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall prevail. 7.2 Delivery of Grant Deed Purchase and Sale Agreement Page 4 of 8 Seller shall deliver at the Closing a grant deed to the Property in the form attached hereto as Exhibit B. 7.3 Payment of Purchase Price At the Closing, Purchaser shall pay Seller the Purchase Price. 7.4 Possession Purchaser shall be entitled to possession of the Property upon conclusion of the Closing. 8. DEFAULT; FAILURE OF CONDITION 8.1 Purchaser Default If the sale is not consummated due to any default by Purchaser hereunder, then Seller shall have the right as its sole remedy hereunder to terminate this Agreement and neither party shall have any further rights or obligations hereunder. 8.2 Seller Default If Seller shall refuse or fail to convey the Property as herein provided for any reason, Purchaser shall elect as its sole remedy hereunder either to terminate this Agreement or to enforce Seller's obligations to convey the Property. 9. MISCELLANEOUS 9.1 Hazardous Materials. As used herein, the term "Hazardous Materials" or "Hazardous Substances" shall mean: (a) any substances defined, regulated or listed (directly or by reference) as "hazardous substances," "hazardous materials," "hazardous wastes," "toxic waste," "pollutant" or "toxic substances" or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. '9601 et seq. ("CERCLA"); (ii) the Hazardous Materials Transportation Act, 49 U.S.C. '1802 et seq.; (iii) the Resource Conservation and Recovery Act, 42 U.S.C. '6901 et seq.; (iv) the Clean Water Act, 33 U.S.C. '1251 et seq.; (v) California Health and Safety Code "25225-25117, 25249.5, 25249.8, 25281, and 25316; and (vi) the Clean Air Act, 42 U.S.C. '7901 et seq.; and (vii) California Water Code '13050; (b) any amendments to such enumerated statutes or acts; and (c) any other hazardous or toxic substance, material chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local environmental laws, including without limitation, friable asbestos, polychlorinated biphenyls ("PCBs"), petroleum, natural gas and synthetic fuel products and by-products. 9.2 Indemnification. 9.2.1 The term "Indemnitor" shall mean Mission Colma LLC. 9.2.2 The term "Indemnitee" shall mean the City of South San Francisco, its assigns and successors in interest. Purchase and Sale Agreement Page 5 of 8 9.2.3 As used herein, the term "Liability" shall mean and include any one or more of the following, based on or arising out of the release or presence of Hazardous Materials in or on the Real Property: any orders, actions, injunctions or expenses (including, without limit, any expenses associated with the response, removal or remediation of such Hazardous Materials). 9.2.4 From and after the Closing Date, Indemnitor shall indemnify, defend (with counsel selected by Indemnitee) and hold harmless Indemnitee, from and against all Liability. Indemnitor agrees that upon receipt of any notices of the presence of, or a release or potential release of Hazardous Materials on or under the Property for which it is liable under the provisions of this Agreement, Indemnitor shall timely initiate and diligently pursue and complete all appropriate response, remediation and removal actions for the release, within the deadlines specified by applicable laws and regulations. So long as Indemnitor is not in material breach hereof, and is discharging its defense and indemnity obligations in a reasonable and responsible manner for a Liability, and it has accepted and is discharging responsibility hereunder for such liability without any reservation of rights, Indemnitee hereby assigns to Indemnitor all of its present and future rights to recover, or receive contribution, from any and all potentially responsible third parties for those costs, expenses and fees incurred by Indemnitor pursuant to this Indemnity. Subject to the foregoing, Indemnitee hereby also assigns its rights to Indemnitor to bring an action against or otherwise cause any or all of such potentially responsible parties to take responsive actions, and to remove and remediate the Hazardous Materials. Each party agrees to cooperate fully with the other in the preservation and prosecution of all such claims and private enforcement actions. So long as Indemnitor is not in material breach hereof, and is discharging its defense and indemnity obligations in a reasonable and responsible manner for a Liability, and it has accepted responsibility hereunder for such liability without any reservation of rights, Indemnitor shall have control over the defense of such Liability without any reservation of rights, and over all negotiations relating to the settlement thereof. Indemnitor's exercise of control over settlements shall not relieve Indemnitor of its indemnity and defense obligations to Seller. 9.3 Entire Agreement This Agreement, together with the Exhibits attached hereto, all of which are incorporated by reference, is the entire agreement between the parties with respect to the subject matter hereof, and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by both parties. 9.4 Severability If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent permitted by law. Purchase and Sale Agreement Page 6 of 8 9.5 Applicable Law This Agreement shall be construed and enforced in accordance with the laws of the State of California. 9.6 Successors Bound This Agreement shall be binding upon and inure to the benefit of Purchaser and Seller and their successors and permitted assigns. 9.7 Captions The captions in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Agreement or the scope or content of any of its provisions. 9.8 Attorneys' Fees If either party hereto fails to perform any of its obligations under this Agreement or if any dispute arises between the parties hereto concerning the meaning or interpretation of any provision of this Agreement, then the defaulting party or the party not prevailing in such dispute, as the case may be, shall pay any and all costs and expenses incurred by the other party on account of such default and/or in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and disbursements. Any such attorneys' fees and other expenses incurred by either party in enforcing a judgment in its favor under this Agreement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys' fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment. 9.9 Time of Essence Time is of the essence of this Agreement. Prior to the date hereof, Buyer has taken all necessary partnership action to authorize the execution and delivery of this Agreement and the closing of the transaction contemplated hereunder. Seller and Buyer desire the transaction escrow to close on or before the Closing Date. Buyer shall take all necessary steps to ensure that escrow will close on or before the Closing Date or as soon as possible thereafter. 9.10 Counterparts This Agreement may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. 9.11 No Merger The obligations contained herein shall not merge with the transfer of title to the Property but shall remain in effect until fulfilled. Purchase and Sale Agreement Page 7 of 8 IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement on the date set forth below, effective as of the date set forth above. SELLER: CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Name: Michael A. Wilson Title: City Manager Approved as to Form: Steven T. Mattas, City Attorney Attest: Sylvia Payne, City Clerk PURCHASER: MISSION COLMA LLC By: Name: Title: J:\wpdXMnrsw\405\001XAGREE\2002Wlay\Trurnark_p&s_050302.DOC Purchase and Sale Agreement Page 8 of 8 Exhibit A Legal Description of Property The land situated in the State of California, County of San Mateo, City of Colma, being a portion of the lands described in the dedication deed to the City of South San Francisco dated November 16, 1955 and filed in book 2920 of Official Records of San Mateo County. At page 626 described as follows: A strip of land 7 feet in width lying Northeasterly of, parallel and adjacent to, the following described property line: Beginning at a point on the Southerly line of Mission Road at the Northeast Corner of Parcel 2 as said Road and Parcel are shown on the Mission road Business Park Parcel Map filed December 17, 1993 in Book 67 of Parcel Maps at pages 19-21; Thence South 50°07'01'' East 638.67 feet to the Northwest Corner of Parcel 1 as shown on said Parcel Map (67 PM pg 21). Exhibit B Escrow No. RECORDING REQUESTED BY: First American Title Insurance Company AND WHEN RECORDED MAn. To: Berliner Cohen Attn: Nadia Holober 10 Alamaden Blvd., 11th Floor San Jose, CA 95113-2233 (Space above this line for Recorder's use) GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF SOUTH SAN FRANCISCO, a municipal corporation ("Seller"), does hereby grant to MISSION COLMA LLC, a California limited liability company ("Purchaser"), the real property situated in the City of Colma, County of San Mateo, State of California, more particularly described in Exhibit A attached hereto and by this reference made a part hereof. TOGETHER WITH the easements, hereditaments and appurtenances belonging to or inuring to the benefit of and pertaining to such real property. Dated: ,2000. SELLER: CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Name: Title: J :\wpd\Mnrsw\405\001 \AGREE\2002\APRiL\Trumark_exhibits_041602. doc