HomeMy WebLinkAboutReso 43-2016 RESOLUTION NO. 43-2016
CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO, 'STATE OF CALIFORNIA
A RESOLUTION APPROVING A PURCHASE AND SALE
AGREEMENT WITH ROTARY PLAZA, INC FOR 300 MILLER
AVENUE AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID AGREEMENT.
WHEREAS, the City of South San Francisco ("City") is the owner of certain property
certain real property (the "Property") located in the City, known as County Assessor's Parcel
Numbers 012-311-230(3 10 Miller Avenue),012-311-240(312 Miller Avenue),012-311-250(314
Miller Avenue and 012-311-260, and,
WHEREAS,on June 29,2011 the legislature of the State of California(the"State")adopted
Assembly Bill xl 26 ("AB 26"), which amended provisions of the Redevelopment Law; and,
WHEREAS, pursuant to AB 26 and the California Supreme Court decision in California
Redevelopment Association, et al. v.Ana Matosantos, et al.,which upheld AB 26(together with AB
1484, the "Dissolution Law"), the former South San Francisco Redevelopment Agency was
dissolved on February 1, 2012; and,
WHEREAS,pursuant to the Dissolution Law,the State of California Department of Finance
("DOF"), on August 31, 2012, approved transfer of certain properties to the City of South San
Francisco in its capacity as the Successor Housing Agency; and,
WHEREAS,in January of 2015,the City and Rotary Plaza,Inc("Developer")entered into
an Exclusive Negotiation Rights Agreement ("ENRA") that established a mutual understanding
among the City and the Developer regarding the potential development of the Property; and,
WHEREAS, the Developer has proposed construction of a mixed-use residential
development ("Project"), consisting. of 80 affordable senior housing units, 1 manager's unit and
1,993 square feet of community assembly space over.56 acres at the following addresses: 310 Miller
Avenue,312 Miller Avenue,314 Miller Avenue and a municipal parking lot(collectively referred to
as "300 Miller Avenue" or "Project Site") in the City; and,
WHEREAS,the City is interested in selling the Property to the Developer as contemplated
in the ENRA,contingent upon approval of a Purchase and Sale Agreement,an Affordable Housing
Regulatory Agreement, a Performance Deed of Trust and a Development Agreement by the City
Council,Developer securing all funding for the Project,and Developer obtaining all applicable land
use entitlements from the City necessary to construct the Project on the Project Site; and,
WHEREAS, the City and the Developer now wish to enter into a Purchase and Sale
Agreement ("PSA"), attached hereto and incorporated herein as Exhibit A, and,
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WHEREAS, approval of an Affordable Housing Regulatory Agreement, a Performance
Deed of Trust and a Development Agreement are being undertaken in separate resolutions and an
ordinance; and,
WHEREAS,Developer seeks approval of a Conditional Use Pen-nit,Design Review,Waiver
and Modification,Density Bonus and Parking Reduction for the Project("Land Use Entitlements")
through a separate resolution; and,
WHEREAS,approval of the Developer's proposal is considered a"project" for purposes of
the California Environmental Quality Act, Pub. Resources Code § 21000, et seq. ("CEQA"); and,
WHEREAS, on January 28, 2015, the City Council certified an Environmental Impact
Report("EIR") (State Clearinghouse number 2013102001)in accordance with the provisions of the
California Environmental Quality Act (Public Resources Code, §§ 21000, et seq., "CEQA") and
CEQA Guidelines, which analyzed the potential environmental impacts of the development of the
Downtown Station Area Specific Plan ("DSASP"); and,
WHEREAS,on January 28,2015,the City Council also adopted a Statement of Overriding
Considerations("SOC") in accordance with the provisions of the California Environmental Quality
Act(Public Resources Code, §§ 21000, et seq., "CEQA") and CEQA Guidelines, which carefully
considered each significant and unavoidable impact identified in the EIR and found that the
significant environmental impacts are acceptable in light of the project's economic, legal, social,
technological and other benefits; and,
WHEREAS,the Project is statutorily exempt from CEQA pursuant to Government Code§
65457 as a residential development project that is undertaken to implement and is consistent with the
DSASP and none of the conditions specified in CEQA § 21166 or CEQA Guidelines § 15162 have
occurred; and
WHEREAS, the Project is also categorically exempt from CEQA pursuant to CEQA
Guidelines § 15332 as an infill development project and none of the exceptions to the exemption
specified in CEQA Guidelines § 15300.2 have occurred; and
WHEREAS, the City prepared an Environmental Consistency Analysis for the Project
pursuant to CEQA Guidelines § 15168(c)(2)and concluded that in accordance with the requirements
of CEQA Guidelines § 15162, as a result of the Project, no new effects could occur and no new
mitigation would be required even if the Project was not exempt from CEQA. The Environmental
Consistency Analysis demonstrates that the Project 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 DSASP EIR certified by City Council nor would any
new mitigation measures be required; and,
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San
Francisco does hereby take the following actions:
(1) Finds and determines that the recitals are true and correct;
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(2) Approves the PSA in substantially the same form attached hereto as Exhibit A; and,
(3) Authorizes the City Manager to enter into and execute the P'SA on behalf of the City,
in substantially the same form as attached hereto as Exhibit A-, to make any revisions, amendments,
or modifications,subject to review and approval of City Attorney,deemed necessary to carry out the
intent of this Resolution and which do not materially alter or increase the City's obligations
thereunder.
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 13th day of April,
2016 by the following vote:
AYES: Councilmcmbers Karyl Matsumoto, Richard A. Garbarino and Liza Normandy
Vice Mayor Pradeep Gupta and Mayor,Mark N. Addicgo
NOES: None
ABSTAIN: None
ABSENT- None
ATTEST(.� -�,
sta`14arti-n4li, City Clerk
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EXHIBIT A.
Purchase and Sale Agreement
2629606.1
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE.AGREEMENT AND JOINT ESCROW INSTRUCTIONS
("this Agreement") is entered into as of 2016 (die "Effective Date"), by and
between the City of South San Francisco, a municipal corporation, ("Seller") and Rotary Plaza,
Inc., ("Buyer"). Seller and Buyer are collectively referred to herein as the "Parties."
RECITALS
A. Seller is owner of certain real property located at 300 Miller Avenue, South San
Francisco, California, also known as San Mateo Assessor's Parcel Number 012-311-230, 240, 250
and 260, as more particularly described in Exhibit A attached hereto and incorporated herein (the
"Property").
B. Seller has agreed to sell the Property to Buyer, and Buyer has agreed to purchase
the Property from the Seller for One Dollar ($1.00)-and to develop certain improvements on the
Property.
C. Buyer intends to construct, own and operate on the Property a multi-family
residential building with eighty-one (81) dwelling units (the "Housing Project"). The Project
will consist of thirty-nine (39) units restricted to very-low income households, forty-one (41)
units restricted to moderatc-income households, and one (1) managers unit. All units in the
Project, except for the managers unit, shall be restricted to senior households. Buyer also
intends to construct 1,993 square feet of community space on the property (collectively with the
Housing Project, the "Project").
D. On , 2016, Buyer and Seller also entered into that certain
development agreement (the "DA"), pursuant to which the Parties have set forth the terms and
conditions for development of the Project.
E. The Property and the Housing Project are subject to that certain Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants ("Regulatory
Agreement"), dated as of 2016, by and between Buyer and Seller. The
performance of Se &s obligation-, under the Regulatory Agreement is secured by a
Performance Deed of Trust, Assignment of Rents , Security Agreement and Fixture Filing (the
"Deed of Trust"), dated as of ) 2016.
F. City Council finds that the economic interests of City's residents and the public
health, safety and welfare will be best served by entering into this Agreement and the
Development Agreement.
G. Buyer agrees to purchase the Property, 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
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adequacy of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as
follows:
I 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 Dollar ($1.00). The Purchase Price shall be paid in
cash at the Closing to the Seller.
3. ESCROW.
3.1 Escrow Account. Seller has opened an interest-bearing escrow
account (the "Escrow") maintained by First America Title Company(the "Escrow Holder"),
with interest accruing to the benefit of Buyer, Escrow Holder shall perform all escrow and title
services in connection with this Agreement.
3.2 Opening of Escrow. Within ten (10)business days after the
Effective Date, the Parties will deposit into Escrow the fully executed Agreement, or executed
counterparts thereto. The date such fully executed Agreement is received by Escrow Holder will
be deemed the "Opening of Escrow."
3.3 Satisfaction of Due Diligence Contingency. Buyer shall have the right
to determine the suitability of the Property for Buyer's needs,and may terminate this Agreement for
any reason prior to the expiration of the Due Diligence Contingency Period (as defined in Section
5.2 a below). Buyer hereby agrees to provide written notice to Seller prior to the expiration of the
Due Diligence Contingency Period if Buyer disapproves any due diligence items. Upon provision of
such notice to Seller, this Agreement shall terminate, and all amounts deposited by Buyer into
escrow-together with interest thereon,if any,will be returned to Buyer, and neither party shall have
any further rights or obligations hereunder except those which expressly survive the termination
hereof If Buyer fails to notify Seller in writing of the disapproval of any due diligence items,it will
be conclusively presumed that Buyer has approved all such items,matters or documents.
PROPERTY DISCLOSURE,REQUIREMENTS.
4.1 Condition of Title/Preliminary Title Report. Escrow Holder has
delivered a Preliminary Title Report for the Property (the "Preliminary Report")to Buyer.
Buyer has reviewed the Preliminary Report and approved all of the following exceptions to title,
(the "Permitted Exceptions"): (a) standard printed exceptions in the Preliminary Report; (b)
general and special real property taxes and assessments constituting a lien not yet due and
payable; and (c)the "Permitted Exceptions" listed on Exhibit C attached hereto.
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4.2 Environmental and Natural Hazards Disclosure. California Health
& Safety Code section 25359.7 requires owners of non-residential real property who know, or
have reasonable cause to believe, that any release of hazardous substances are located on or
beneath the real property to provide written notice of same to the buyer of real property. Other
applicable laws require Seller to provide certain disclosures regarding natural hazards affecting
the Property. Seller agrees to make all necessary disclosures required by law.
5. 'CLOSING AND PAYMENT OF PURCHASE PRICE.
5.1 Closinf-,,. The closing(the "Closing" or"Close of Escrow") will
occur no later than sixty (60) calendar days after the Effective Date ("Closing Date") or such
other date that the Parties agree in writing.
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 forty-five (45) calendar days from Opening of Escrow (die "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 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 entered into an MO:U regarding community meeting
space and a flexible policy Implementing its use. Such MOU shall ensure that Seller has
reasonable access to the community meeting space.
(c) Seller has performed all obligations to be performed by Seller
pursuant to this Agreement.
(d) Seller's representations and warranties herein are true and correct
in all material respects as of the Closing Date.
(e) The Title Company is irrevocably committed to issue a CLTA
Tide Policy to Buyer, effective as of the Closing Date, insuring tide to Buyer in the full amount
of the Purchase Price.
(f) Seller has completed a lot merger, or its equivalent.
(g) Seller, as current owner of the Property, has issued such relocation
notices as may be necessary, appropriate and requested by Buyer.
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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 Sellers sole discretion) of such conditions on
or before the Closing Date.
(a) Buyer has executed the DA, the Regulatory Agreement and the
Deed of Trust;,
(b) Buyer has entered into an MOU regarding community meeting
space and a flexible policy implementing its use.-.,Such MOU shall ensure that Seller has
reasonable access to the community meeting space.
(c) CEQA has been completed for the Project3-.
(d) Buyer has performed all obligations to be performed by Buyer
pursuant to this Agreement before Closing Date.
(c) Buyer's representations and warranties set forth herein are true and
correct in all material respects as of the Closing Date.
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" 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 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-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) Closin . 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
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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, title report costs and all transfer taxes. Seller will pay all governmental conveyance
fees, where applicable.
(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.
5.6 Relocation Obligations. Buyer shall be responsible for all
relocation costs of existing tenants of the Property. In the event the Closing does not occur by
the Closing Date, as such date may be extended by the parties, Seller shall reimburse Buyer for
such relocation costs within thrity(30) business days of the termination of this Agreement. Seller
shall not be required to reimburse Buyer for relocation costs pursuant to this Section 5.6 in the
event that the Closing does not occur due to Buyer's failure to comply with any of its obligations
or Closing conditions pursuant to this Agreement,
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 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.
(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 good and marketable title to the
Property, and 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
Preliminary Report. 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.
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(c) There are no agreements affecting the Property except
those which have been disclosed by Seller. There are no agreements which will be binding on the
Buyer or the Property after the Close of Escrow.
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 nonprofit corporation, lawfully formed, in
existence and in good standing under the laws of the State of California. 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.
The truth and accuracy of each of the representations and warranties, and the performance of an
covenants of Buyer contained in this Agreement are conditions precedent to Seller's obligation
to proceed with the Closing hereunder.
7. DEFAULT, REMEDIES, TERMINATION. Either Party shall be in
default of this Agreement ("Default") if such Party fails to keep, observe or perform any of its
covenants, duties or obligations under this Agreement, and the default continues for a period of
thirty(30) days, unless a different time period is specified herein, after written notice thereof
from the non-defaulting Party to the defaulting Party, or in the case of a Default that cannot with
due diligence be cured within thirty(30) days or other time specified for herein, the defaulting
Party fails to prosecute the curing of such Default with due diligence and in good faith to
completion. Either Party shall have the right to terminate this Agreement upon a Default and
expiration of any applicable cure period, and in accordance with the terms of this Agreement, in
addition to pursuing all remedies available under law or equity. Except as otherwise provided
herein, the rights and remedies of the Parties shall be cumulative; provided, however, that neither
Party shall have a right to recover consequential or punitive damages.
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. Buyer shall indemnify,hold harmless and defend Seller from any
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and all claims, actions and liability for any breach of the preceding sentence, and any
commission, finder's fee, or similar charges arising out of Buyer's conduct.
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, which consent may be withheld
for any reason; provided, however, that Buyer shall be permitted to assign this Agreement to a
limited liability company of which Buyer is a member and holds not less than a 49% ownership
interest ("Buyer LLC") or a limited partnership of which the Buyer or Buyer LLC is a partner
without additional consent. Other than transfers permitted by this section, no 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, ENVIRONMENTAL INDEMNITY. 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 and contractors harmless from and against any and all claims (including
without limitation third party claims for personal injury, real or personal property damage, or
damages to natural resources), actions, administrative proceedings (including without limitation
both formal and informal proceedings),judgments, damages, punitive damages, penalties, fines,
costs (including without limitation any and all costs relating to investigation, assessment,
analysis or clean-up of the Property), liabilities (including without limitation sums paid in
settlements of claims), interest, or losses, including reasonable attorneys' and paralegals' fees
and expenses (including without limitation any such fees and expenses incurred in enforcing this
Agreement or collecting any sums due hereunder), together with all other costs and expenses of
any kind or nature (collectively, the "Costs")that arise directly or indirectly from or in
connection with the presence, suspected presence, release, or suspected release, of any
Hazardous Materials in, on or under the Property or in or into the air, soil, soil gas, groundwater,
or surface water at, on, about, around, above, under or within the Property, or any portion
thereof, except those Costs that arise solely as a result of actions by Seller. 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. 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,Buyer waives
releases, remises, acquits and forever discharges Seller, and its officers, directors, board members,
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managers, employees and agents, and any other person acting on behalf of Seller, from any and all
'claims, actions, causes of action, demands, rights, damages, costs, expenses and compensation
whatsoever,direct or indirect,known or unknown, foreseen or unforeseen,which Buyer now has or
which may arise in the future on account of or in any way arising from or in connection with the
physical condition of the Property or any law or regulation applicable thereto including, without
limiting the generality of the foregoing, any federal, state or local law, ordinance or regulation
pertaining to Hazardous Materials.This Section 11 shall survive the termination of this Agreement
and the Close of Escrow.
BUYER ACKNOWLEDGES THAT BUYER IS FAMILIAR WITI I SECTION 1542 OF'rHE.
CALIFORNIA CIVIL CODE,WHICI I PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
By INITIALING BELOW,BUYER EXPRESSLY W DIVES 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
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Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials
Transportation Act (49 U.S.C. 5 1.801 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 el seq.), the Clean
Air Act(42 U.S.C. § 7401 etseq.),the`Toxic Substances Control Act(15 U.S.C. §2601 etseq.),the Oil
Pollution Act (33 U.S.C. § 2701 el 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, etseq.), the Safe
Drinking Water-and Toxic Enforcement Act of 1986 (Cal. Health &Safety Code § 25249.5 el seq.),
the Hazardous Waste Control Act (Cal. Health & Safety Code 5 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' pees, 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
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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.
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:
To Buyer: Rotary Plaza, Inc.
c/o Beacon Development Group
6120 Stoneridge Mall Road, Suite 300
Pleasanton, CA 94588
Attn: Ancel Romero
To Seller: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager
Fax (650) 829-6609
If to Escrow Holder: First American Title Company
I I
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.
13.9 Time. Time is of the essence to the performance of each and every
obligation under this Agreement.
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13.1 0 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 5:00 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
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 SigLiatures/CounteMarts. 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 Delivpa 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 par-ties 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.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
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SELLER:
CI'T'Y OF SOUTH SAN FRANCISCO
Icy:
Mike Futrell
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
Jason Rosenberg
City attorney
BUYER:
ROTARY PLAZA, INC.
By:
Title:
APPROVED AS TO FOR1&
By:
Counsel for Buyer
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LIST OF EXHIBITS
Exhibit A Legal Description
Exhibit B Grant Deed
Exhibit C Permitted Exceptions
Exhibit D Regulatory Agreement
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Exhibit A
LEGAL DESCRIPTION
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Exhibit B
GRANT DEED
19
Exhibit C
PERMITTED EXCEPTIONS
20
Exhibit D
REGULATORY AGREEMENT
21