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HomeMy WebLinkAboutReso 161-1999- ' RESOLUTION NO. 161-99 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING THE EXECUTION OF AN EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO, THE REDEVELOPMENT AGENCY AND ROBERT AND KATHLEEN GIORGI FOR THE EXCHANGE OF PROPERTY WHEREAS, Mr. Robert Giorgi proposes a land exchange with the City and Redevelopment Agency of South San Francisco; and WHEREAS, the Redevelopment Agency has indicated interest in said proposal as the project would enhance retail development in the Baden corridor; and WHEREAS, the City Council and Redevelopment Agency actions will provide the authority to explore the feasibility of the proposal by Mr. Giorgi. NOW, THEREFORE, BE IT RESOLVED by the City of South San Francisco that the City Council hereby authorizes the execution of an Exclusive Negotiating Rights Agreement between the City of South San Francisco, the Redevelopment Agency and Robert and Kathleen Giorgi for the exchange of property. I hereby certify that the foregoing is a true copy of the Resolution introduced and adopted by the City Council of the City of South San Francisco in a Special meeting held on the 15th day of December, 1999, by the following vote: AYES: Councilmembers James L. Datzman, Eugene R. Mullin, and John R. Penna, Mayor Pro Tem Joseph A. Fernekes and Mayor Karvl Matsumoto NOES: None ABSTAIN: None ABSENT: None ATTEST: City Clerk AGREEMENT GRANTING EXCLUSIVE RIGHT OF NEGOTIATION THIS AGREEMENT is made as of the day of ,1999 between the REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA, a public body, corporate and politic ("AGENCY"), the CITY OF SOUTH SAN FRANCISCO, CALIFORNIA, a municipal corporation ("CITY"), and ROBERT AND KATHLEEN GIORGI, a ("PARTICIPANT") (collectively, the "Parties"). RECITALS WHEREAS, the AGENCY owns the real property ("Agency's Property") commonly known as 205 Baden Avenue, South San Francisco, California, more fully described in the attached Exhibit A incorporated herein by reference; and, WHEREAS, the CITY owns the real property (''City's Property") commonly known as __ Baden Avenue, South San Francisco, California, more fully described in the attached Exhibit B incorporated herein by reference; and, WHEREAS, the PARTICIPANT owns the real property (''Participant's Property") commonly known as 212 Baden Avenue, South San Francisco, California, more fully described in the attached Exhibit C incorporated herein by reference; and, WHEREAS, all of the property described above is located in the Downtown/Central Redevelopment Project Area established on July 12, 1989 by Ordinance No. 1056-89 of the South San Francisco City Council; and, WHEREAS, the PARTICIPANT desires to acquire the Agency's Property and the City's Property (together, the "Site") for redevelopment consisting of construction of a two level furniture store having a footprint of approximately 23,520 square feet, together with on-site surface parking (the "Project"); and, WHEREAS, the Parties desire to explore the feasibility of exchanging the Site for Participant's Property to facilitate PARTICIPANT'S redevelopment of the Site; and, WHEREAS, the Parties desire to pursue negotiation of one or more agreements that together will convey the Site to PARTICIPANT and convey the Participant's Property to the NEGOTIATION AGREEMENT - GIORGI- 11/16/99 C:\windows\TEMP~Giorgi ER.lq.doe 1 of 9 AGENCY and will provide for PARTICIPANT'S redevelopment of the Site in conformance with the Redevelopment Plan for the Downtown/Central Redevelopment Project Area. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows ("Agreement"): 1. Term: The initial term of this Agreement ("Initial Term") shall be 180 days from the date first above written, unless earlier terminated as provided herein. The Initial Term of this Agreement may be extended for an additional 60 days ("Extended Term"), provided that each of the Parties is making reasonable progress in fulfilling its obligations hereunder. In applying this provision to the PARTICIPANT, reasonable progress shall require the timely submission of all information requested by the AGENCY and the CITY. The AGENCY hereby delegates authority to its Executive Director and the CITY hereby delegates authority to its City Manager, to execute the extension provided hereinabove. The Extended Term of this Agreement may be further extended only by written amendment upon the mutual agreement of the Parties and the approval of the AGENCY'S Governing Board and the CITY'S City Council. The Party desiring to further extend the Extended Term of this Agreement shall provide written notice to each of the other Parties at least twenty-eight (28) days in advance of the expiration of the Extended Term of this Agreement. 2. Feasibility Studies: The Parties shall use their best efforts to prepare or cause to be prepared the reports and documents as set forth below. A. Participant's Studies: The PARTICIPANT shall use its best efforts to prepare or cause to be prepared any and all studies, surveys, plans, specifications, and reports deemed by PARTICIPANT to be necessary or desirable to determine the feasibility of its proposed redevelopment of the Site. Further, PARTICIPANT shall promptly commence preparation of those architectural drawings, site plans, and other documents needed to obtain necessary approvals and permits from the City of South San Francisco. Together, the documents described in this paragraph shall be referred to as "Participant's Reports." Within 30 days from the date first written above, the AGENCY and the CITY shall make available to PARTICIPANT for review or copying at PARTICIPANT'S expense ail studies, surveys, plans, specifications, reports, contracts, maintenance records, permits, leases, and other documents with respect to the Site that the AGENCY or the CITY has in its possession or control. PARTICIPANT shall be solely responsible for all costs associated with the preparation of Participant's Reports. The AGENCY and the CITY are entering into this Agreement without monetary compensation. In lieu of such compensation, if this Agreement shall expire or be earlier terminated without the Parties having successfully negotiated the agreements contemplated herein, PARTICIPANT shall lqEGO~TION AGREEMENT - GIORGI- 11/16/99 C:\windows\TEM~Giorgi ERlq.doc 2 of 9 make any and all of Participant's Studies available to both the AGENCY and the CITY for copying at their own expense. B. Agency's Studies: Within 15 days of the date first written above, the AGENCY shall order preliminary title reports for the Agency's Property, the City's Property, and the Participant's Property. If this Agreement shall expire or be earlier terminated without the Parties having successfully negotiated the agreements contemplated herein, the CITY and the PARTICIPANT shall each promptly reimburse the AGENCY for the cost of obtaining such report for the Property owned by that Party. Within 15 days of the date first written above, the AGENCY shall contract for appraisals of the Agency's Property, the City's Property, and the Participant's Property, using the services of an appraiser selected by the AGENCY. The Executive Director of the AGENCY is hereby authorized to execute the contract for such appraisals. Upon receipt of a copy of the paid invoice, the PARTICIPANT shall promptly reimburse the AGENCY for one-half of the cost of obtaining such appraisals. 3. Feasibility Assessment: The Parties shall cooperate in good faith to assess the feasibility of the transactions contemplated in this Agreement ("Feasibility Assessment") and each Party shall use its best efforts to obtain and provide to the other Parties any information relating to that Party's Property or the Project that is reasonably required to perform such assessment. The Feasibility Assessment may include, but is not necessarily limited to, an analysis of the relative values of the properties, the feasibility of the Project's implementation, and the extent to which the transactions contemplated in this Agreement will contribute to each Party's goals and objectives. 4. Good Faith Efforts to Negotiate: If the Feasibility Assessment supports, to the satisfaction of all Parties, the feasibility of the Project and the transactions contemplated herein, the Parties shall diligently and in good faith pursue negotiation of mutually satisfactory terms of the agreement(s) required to effectuate such transactions. Furthermore, each Party shall use diligent and good faith efforts to obtain any consent, authorization or approval, or exemption, required or in connection with the transactions contemplated herein. This Agreement does not require any Party to accept the terms of an agreement negotiated hereunder if the Party, acting reasonably and in good faith, deems that such terms are not in its best interest. 5. Exclusive Right to Negotiate: Each Party agrees that it will not, during the Term of this Agreement, directly or indirectly, through any officer, employee, agent, or otherwise, solicit, initiate or encourage the submissions of bids, offers or proposals by any person with respect to acquisition of any interest in that Party's Property and neither shall any Party engage any broker, financial adviser or consultant with an incentive to initiate or encourage proposals or offers from other persons. Furthermore, no Party to this Agreement shall, directly or indirectly, through any officer, employee, agent or otherwise, engage in negotiations concerning any such transaction NEGOTIATION AGREEMENT - GIORGI- 11/16/99 C:\windows\TEMP~Giorgi ERN.doc 3 of 9 with, or provide information to, any person other than the Parties and their representatives with a view to engaging, or preparing to engage, that person with respect to any matters in this Agreement. 6. Relationship of Parties: The Parties agree that nothing in this Agreement shall be deemed or interpreted to create between them the relationship of lessor and lessee, of buyer and seller, or of partners or joint venturers. 7. Expenses: Unless this Agreement expressly provides otherwise, all costs and expenses (including, without limitation, all legal fees and expenses) incurred in connection with this Agreement and the activities contemplated hereby shall be paid by the Party incurring the same. 8. No Further Encumbrances: No Party shall, during the Term of this Agreement and without the other Parties' consent, take or cause or suffer to be taken, any action that would place an additional burden or encumbrance on that Party's Property. 9. Release of Information: During the term of this Agreement, each Party shall obtain the written consent of each of the other Parties prior to issuing, or permitting any of its officers, employees or agents to issue, any press release or other information to the media, with respect to this Agreement or the activities contemplated hereby; provided, however, that no Party shall be prohibited from supplying any information to any of its representatives, agents, attorneys, advisors, financing sources and others to the extent necessary to accomplish the activities contemplated hereby so long as such representatives, agents, attorneys, advisors, financing sources and others are made aware of the terms of this Section 9. Nothing contained in this Agreement shall prevent any Party at any time from furnishing any required information to any governmental entity or authority pursuant to a legal requirement or from complying with its legal or contractual obligations. 10. Execution of Negotiated Agreement(s): If the Parties successfully negotiate the agreement(s) contemplated herein, the AGENCY and the CITY shall promptly seek review of such agreement(s) by their respective governing bodies, conduct the required public hearing(s), and recommend approval of such agreement(s); Provided, that neither the AGENCY nor the CITY shall be obligated in any way to, and shall not, seek approval by its respective governing body unless and until all requirements of the California Environmental Quality Act have been fulfilled. Provided further, that neither the AGENCY nor the CITY shall have any binding obligation whatsoever to convey any interest in its respective Property or to grant any approvals or authorizations for the Project until the agreement(s) negotiated pursuant to this Agreement have been approved by its respective governing body and have been fully executed. 11. Termination: This Agreement may be terminated at any time by mutual consent of the NEGOTIATION AGREEMENT - GIORGI- 11/16/99 C:\windows\TEMP~Giorgi ERN.doc 4 of 9 Parties. Any Party shall have the right to terminate this Agreement upon its good faith judgment that one of the other Parties is not proceeding diligently and in good faith in carrying out the activities contemplated in this Agreement. The Party desiring to terminate shall provide at least ten (10) days advance written notice to each of the other Parties. Further, PARTICIPANT shall have the right to terminate this Agreement, effective within 10 days of its written notice to terminate, delivered to the AGENCY and the CITY, if the results of its investigation of the Site are unsatisfactory with respect to PARTICIPANT'S desired redevelopment activities or if PARTICIPANT is unable to obtain other necessary approvals, rights or interests. 12. Effect of Termination or Expiration: Upon termination as provided herein or upon final expiration of this Agreement without the Parties having successfully negotiated the agreement(s) contemplated herein, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any of the Parties or their respective officers, employees, agents or other representatives, except as otherwise expressly provided herein. Provided, that the provisions of Sections 2 and 7 shall remain in full force and effect. 13. Notices: All notices and other communications under or in connection with this Agreement shall be in writing and shall be deemed given (a) if delivered personally (including by overnight express or messenger), upon delivery, (b) if delivered by registered or certified mail (return receipt requested), upon the earlier of actual delivery or three days after being mailed, or (c) if given by facsimile, upon confirmation of transmission, in each case to the Parties at the following addresses: A. If to AGENCY, addressed to: Attention: Facsimile #: With a copy to: Attention: Facsimile #: Redevelopment Agency of the City of South San Francisco Michael A. Wilson Executive Director 400 Grand Avenue South San Francisco, CA 94080 650-829-6609 'Meyers, Nave, Riback, Silver & Wilson 777 Davis St., Suite 300 San Leandro, Ca. 94577 Deborah L. Rhoads, Esq. (510) 351-4481 NEGOTIATION AGREEMENT - GIORGI- 11/16/99 C:\windows\TEMl~G-iorgi ERN.doc 5 of 9 B. If to CITY, addressed to: The City of South San Francisco Attention: Facsimile #: Michael A. Wilson City Manager 400 Grand Avenue South San Francisco, CA 94080 650-829-6609 With a copy to: Attention: Facsimile #: Meyers, Nave, Riback, Silver & Wilson 777 Davis St., Suite 300 San Leandro, Ca. 94577 Steven T. Mattas, Esq. (510) 351-4481 C. If to PARTICIPANT, addressed to: Robert & Kathleen Giorgi Facsimile #: With a copy to: Attention: Facsimile #: 16. No Brokers: Each Party represents that it has dealt with no brokers with respect to the transactions contemplated by this Agreement, and no broker or person is entitled to any commission, finder's fee or other similar compensation by virtue of the transactions. Each Party hereby defends and indemnifies the other against any and all claims, losses, liability and damages, including reasonable attorney fees, in connection with any commission, finder's fee or other similar compensation sought, based upon some obligation of the indemnifying Party with respect to the transactions. 17. Severability: If any term or provision of this Agreement or the application thereof to any circumstance shall, in any jurisdiction and to any extent, be invalid or unenforceable, such term or provision shall be ineffective as to such jurisdiction to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable such term or provision in any other jurisdiction, the remaining terms and provisions of this Agreement or the application of NEGOTIATION AGREEMENT - GIORGI- 11/16/99 C:\windows~TEMP~C-iorgi ERN.doc 6 of 9 such terms and provisions to circumstances other than those as to which it is held invalid or unenforceable. 18. Entire Agreement: This Agreement contains the entire understanding of the Parties in respect of its subject matter and supersedes all prior and contemporaneous agreements and understandings, oral and written, between the Parties with respect to such subject matter. 19. Successors and Assigns: This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; PROVIDED, that no Party shall directly or indirectly transfer or assign any of such Party's respective rights hereunder in whole or in part without the prior written consent of each of the other Parties, and any such transfer or assignment without said consent shall be void, ab initio. Subject to the immediately preceding sentence, this Agreement is not intended to benefit, and shall not nm to the benefit of or be enforceable by, any other person or entity other than the Parties and their permitted successors and assigns. 20. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California. [The remainder of this page intentionally left blank.] NEGOTIATION AGREEMENT - OIORGI- 11/16/99 C:\windows\TEMl~Giorgi ERN.doc 7 of 9 IN WITNESS WHEREOF, each of the Parties has executed this Agreement, or has caused this Agreement to be executed on its behalf by a representative duly authorized, all as of the date first above set forth. REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA APPROVED AS TO FORM: By: Michael Wilson, Executive Director By: Agency Counsel ATTEST: By: Agency Secretary THE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA Approved as to form: By: Michael Wilson, City Manager City Attorney Attest: City Clerk NEGOTIATION AGREEMENT - GIORGI- I 1/16/99 C:\windows\TEMP~Giorgi EKN.doc 8 of 9 PARTICIPANT: By: Robert Giorgi By: Kathleen Giorgi NEGOTIATION AGREEMENT - GIORGI- 11116/99 C:\windows\TEMP~Giorgi ERN.doc 9 of 9 EXHIBIT A LEGAL DESCRIPTION OF AGENCY'S PROPERTY NEGOTIATION AGREEMENT- GIORGI C:\WINDOWS\TEMP~GIORGI ERN.DOC EXI-HBITS EXHIBIT B LEGAL DESCRIPTION OF CITY'S PROPERTY NEGOTIATION AGREEMENT - GIORGI C:\WINDOWS\TEMP~GIORGI ERN.DOC EXHIBITS EXHIBIT C LEGAL DESCRIPTION OF PARTICIPANT'S PROPERTY APN - 012-334-040 Lots 6 and 7 in Block 140, as shown on that certain map entitled "SOUTH SAN FRANCISCO, SAN MATEO COUNTY, State of California, on March 1, 1892 in Book "B" of Maps at page(s) 6 and a copy entered in Book 2 of Maps at page 52. NEGOTIATION AGREEMENT- GIORGI C:\WINDOWS\TEMP~GIORGI ERN.DOC EXHIBITS