HomeMy WebLinkAboutReso 37-2019 (19-163)If"Tll IMm-nber 19-163 Enactment Number: RIES 37-2019
RESOLLY1710N APPROVING TFIE', PURCHASE AND SALE,'
AGREEMENT .13E'FWI-.,,EN JITE CITY OF SOUTH SAN
FRANCISCOAND 938 LINDEN,1-T, FOR17HE SALE OF 938
LINDEN "EINUE, INTIJE AMOUNTOF'$1,050,000.
WHERIE AS, on June 29, 2011, the Legislature of the State of California ("'State") adopted Assembly Bill
x1 26 ("AB 26"), which amiended provisions of the State's Community Redevelopment Law (14ealth and
Safbtyy Code sections 33000 et seq.) ("Dissolution Law"), pursuatit to which the former Redevelopment
.Agency of the City of South San Francisco ("City") was dissolved on February 1, 2012; arid.
Id s.. the City elected to become the Successor Agency to the.lZedevelopment.A.gency of the City
of South San Francisco ("Successor Agency"); arid
WHEREAS, pursuant to Health and Safety Code Section 34191.6(c)(2)(C), property shall not be
transferred to a successor agency, city, county or city and county, unless an Long Range Property
Management Plan ("LRP.MP") has been approved by the Oversight Board and the California Department
of Finance ("DOF"); md
W1-1ER.l'!.AS,, in accordance with die Dissolution Law, the Successor Agency prepared a I...RPMP, which
was approved by a resolution. of the Oversight Board for the Successor Agency to theRedevelopment
Agency of the City of South San Francisco ("Oversight.Board") onMay 21, 2015, and was approved by
th.e.13017 on October 1, 2015; arid
WHEREAS, consistent with theDissolution Law and the LRPMP, certain real properties located in the
City of South Sam Francisco, that were previously owned by the fornier Redeve.lopment Agency, were
transferred to the Successor Ageu.(..,sy ("Agency Properties"); and
WHEREAS,, on October 18, 2016, the City entered into an Amended andRestated MasterAgee ernent for
TaxingEntity Compensation ("Compensation Agreement") with the various local agencies who receive
shares of Property tax revenues from the former redeveloptnent project area ("Thxing.En ti ties"'), which
provides that UPOD approval by the Oversight Board of the sale price, ai.-id. consistent with the LRPMP,
the proceeds ftom the sale of any of the Agency Properties will Inc distributed to the ThxiDg Entities hi
accordance with. their propoinionate contributions to the Real PropertyTax 'frust Fund for the fimvier
Redevelopment Agency; and
Wt.]EREAS, th.e.former Redevelopment Agency purchased the Property in 2009; and,
City of South San Francisco Page 1
File Number, 1,9463 Enactment Number RES 37-2019
WBEREAS, the LWIMP, prepared by the Successor Agency and. approved by the Oversight Board l'or
the Successor Agency to the Redevelopment Agency of the City of South San Francisco ("Oversight
Board"'), designated 938 Linden Avenue, County Assessor's Parcel Nuiriber 012-102-030 ("Property"),
to be sold, with die proceeds of the sale distributed to the taxing enlities; and,
WHEREAS, to carry out die ternis of the UUMP, the Successor Agency transferred the Agency
Properties, including the Property, to the City for disposition consistent, with the ternis of the LR..PMP;
arid,
WHEREAS, in October 2017, the City of South San Francisco solicited ofl"ers to interested parties to the
Property; and,
WIDE EAS, Robert 938 Linden, LY ("Buyer") has made an offer to purchase the Property, and the City
agrees to sell the Property to Buyer, subject to the ternis and conditions of the purchase and sale
agreement; and,
WHEREAS, inJannary 2018, the Successor Agency prepared an. Appraisal Report to deteimine the Fair
Market Value for the Property; arid,
WHEREAS, s-taff has determined that the current appraised valtw, of the property is consistent with the
original Appraisal Report, dated npanuary 2018.
OW, TIJEREFORE, BE ITRESOLVED that the City of South San Francisco does hereby resolve as
follows:
1. The 1,bregoing recitals are true tind correct and made a. pa rt. of this Resolution.
2. The proposed actions in this Resolution are consistent with the Long Range property Managernerit
Plan.
3. The sale of the Propertyduo 938 Linden, I,Pfor$1,050,000 is hereby approved.
4. Subject. to approva l. by the Oversight Board of the final sale price, the City Manager, or his designee,
is authorized to execute the Purchase and Sale Agreernerat on behalf of the City, a draft of which is
aftached hereto as Exhibit A and incorporated herein., subject to ininor aniendiinents that do not rnaterially
increase the City's obligafiions.
5, 17he City Manager, or his designee, is authorized to execute any otber necessaiy documents related to
the sale of the Property.
6. The City Managei, or his designee, is authorized take any and all. other actions necessary to
implement this intent of this Resolution, subject to approval as to foriar by the City Attorney.
CiW of South San Francisco Page 2
File Number: 19-163 Enactment Number: RES 37-2019
At a meeting of the City Council on 3/13/2019, a motion was made by Richard Garbarino, seconded by
Buenaflor Nicolas, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Matsumoto, Vice Mayor Garbarino, Councilmember Addiego,
Councilmember Nagales, and Councilmember Nicolas
Attest by
/osa Govea Acosta
City of South San Francisco Page 3
PURCHASE AND SALE AGREEMENT
AND JOINTESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
rNSTRUCTIONS ("this Agreement") is entered into as of 2019 (the "Effective
.Date"), by and between the City of South San Francisco, a municipal corporation, ("Seller") and
938 Linden, LP, a California limited partnership ("Buyer"). Seller and Buyer are collectively
referred to herein as the "Parties."
A. Seller is owner of certain real property with an address of 938 Linden Avenue,
South San Francisco, California, also known as San Mateo Assessor's Parcel Number 012-102-030,
as more particularly described in Exhibit A attached hereto and incorporated herein (the
WI`ropertyq4).,
B. The for merRedevelop mentAgency of the City of South San Francisco ("RDA.")
purchased the Property in 2009.
C. On, June 29, 2011 the legislature of the State of California (the "State") adopted
Assembly Bill x 1 26 ("AB 26"), which amended provisions of the Redevelopment Law, and the
California Supreme Court, decision in Califiarnia Redevelopment Association, et al. v. Ana
Matosantos, et al., upheld AB 26 (together with AB 1484, the "Dissolution Law"), and the RDA
was dissolved on February 1, 2012.
D. Pursuant to the Dissolution Law, the South San Francisco Successor Agency
("Agency") prepared a Long Range Property Management Plan ("LRPMP"), which was approved
by a resolution of the Oversight Board for the Successor Agency to the Redevelopment Agency of
the City ofSouth San Francisco ("Oversight Board") on November 19, 2013, and on May 21,
2015" the Oversight Board approved the Amended Long Range Property Management Plan
("LRPMP"'), which was approved by the California department of Finance ("DOV) on October
1, 2015.
E. Pursuant to the LRPMP arid. Dissolution Law, the Agency's transfer of real property
assets to the City for disposition consistent with the LRPMP is subject to entering into a Master
Agreement for Taxing Entity Compensation by all Taxing Entities.
F. The City and Taxing Entities entered into an Amended and Restated Master
Agreement for Taxing Entity Compensation, dated October 18, 2016 ("Master Compensation
Agreement"'), which governs the distribution of any net proceeds received from the sale of the
Property.
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.
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NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows:
1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set
forth above and the Exhibits attached to this Agreement are each incorporated into the body of this
Agreement as if set forth in full.
2. PURCHASE AND SALE.
2.1 Agreement to Bound Sell. Subject to the terms and conditions set
forth herein, Seller agrees to sell the Property to Buyer, and Buyer hereby agrees to acquire the
Property from Seller.
2.2 Purchase Price. The purchase price for the Property to be paid by
Buyer to Seller (the "Purchase Price") is one million and fifty thousand dollars ($1,050,000.00).
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 North American Title Company in San Mateo (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 seven (7) 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" and Escrow Holder will give written notice to the Parties of such
occurrence.
3.3 Buver's Deposit. Within three (3) business days after the Opening of
Escrow, the Buyer shall deposit fifty thousand dollars ($50,000.00) in Escrow ("Initial Deposit").
If the Due Diligence Contingency Period (as defined in Section 5.2(a) below) is extended pursuant
to Section 5.2, Buyer shall deposit an additional fifty thousand ($50,000.00) in Escrow (the
"Additional Deposit"). The Initial Deposit and Additional Deposit are sometimes collectively
referred to herein as the "Deposits."
3.4 Satisfaction of Due Dili zence Contingency. Buyer shall have the right, in
its sole discretion, to terminate this Agreement for any reason prior to the expiration of the Due
Diligence Contingency Period (as defined in Section 5 below) and receive a refund of the
Deposit. 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 or approves all due
diligence items ("Approval Notice"). If Buyer disapproves any items through the delivery of the
Approval Notice to Seller before 5:00 p.m. on the last day of the Due Diligence Contingency
Period, this Agreement shall terminate, and all amounts deposited by Buyer into escrow (except
the Independent Consideration), 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
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expressly survive the termination hereof If Buyer fails to timely deliver the Approval Notice to
Seller, it will be conclusively presumed that Buyer has approved all such items, matters or
documents.
3.5 Independent Consideration. As independent consideration for Seller's
entering into this Agreement to sell the Property to Buyer, Buyer shall deliver the sum of Five
Thousand Dollars ($5,000.00) to Seller through Escrow (".Independent Consideration"). In the
event that Buyer terminates this Agreement in accordance with Section 3.4. above, Seller shall
retain the Independent Consideration; in the event that Buyer does not terminate this Agreement
as aforesaid, the Independent Consideration shall be applied to the Purchase Price at Closing.
4. PROPER' Y DISCLOSLRf
, r RL-QUIREME-XrS.
4.1 Condition of itle/Prelimjnga`Title Bcport. Escrow Holder shall deliver
a Preliminary 'Title Report for the Property (the "Preliminary Report") to Buyer within three (3)
days after the Opening of Escrow. Buyer shall have until the end of the Due Diligence Contingency
Period. to approve the condition of title to the Property. If Buyer delivers the Approval Notice,
Buyer agrees to take title to the Property subject to the following "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 Schedule B
exceptions to the title referenced in the Approval Notice.
4.2 Environmental Condition of �Pro e�rt. Seller has provided Buyer with all
documents reasonably known to Seller pertaining to the environmental condition of the Property,
including the report, "Summary of Known Environmental Conditions 938 Linden Avenue, South
Sari Francisco, California (EI I B70049.00)" (hereafter referred to as "EKI report"). At Closing,
the Buyer agrees to take title of the Property in AS- IS WHERE -IS condition with no
environmental remediation work required by or indemnities from the Seller or the Agency, Seller,
at Buyer's expense, agrees to cooperate with Buyer to obtain regulatory approval of any necessary
environmental work for the Property. Buyer explicitly acknowledges that Buyer will be
responsible to manage and complete any remediation work for the Property after Closing. After
Closing, Seller shall have no further obligations with respect to environmental and/or natural
hazards remediation costs.
4.3 Environmental and Natural Hazards Disclosure. California I-lealth & Safety
Code section 25359.7 requires owners of non-residential real property who know, or have
reasonable cause to believe, that any release of hazardous substances are located on or beneath the
real property to provide written notice of same to the buyer of real property. Other applicable laws
require Seller to provide certain disclosures regarding natural hazards affecting the Property.
Pursuant to Section 4.2, Seller has provided Buyer with the EKI report and agrees to make any
additional necessary disclosures required by law.
5. CLOSING AND PAYMENTCSF PURCHASE PRICE.
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5.1 QIosin y. The closing (the "Closing" or "Close of Escrow") will occur no
later than thirty (30) calendar days after the Effective Date ("Closing Date") or such other date
that the Parties agree in writing.
5.2 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
ten (1 0) calendar days from Opening of Escrow (the "Due Diligence Contingency Period") to
complete physical inspections of the Property and due diligence related to the purchase of the
Property. Seller shall provide to Buyer copies of all reasonably available and known documents
relating to the ownership and operation of the Property, including but not limited to plans, permits
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, or as soon as practicable thereafter. All physical inspections must be coordinated with
Seller's representative. Buyer hereby agrees to indemnify and hold Seller harmless for any damage
to the Property caused (but not merely revealed) by Buyer's inspections.
(b) Seller has performed all obligations to be performed by Seller
pursuant to this Agreement.
(c) Seller's representations and warranties herein are true and correct in
all material respects as of the Closing Date..
(d) T'he Title Company is irrevocably committed to issue an ALTA
standard coverage title insurance policy to Buyer, effective as of the Closing Date, insuring title to
Buyer in the full amount of the Purchase Price.
5.3 Seller's Conditions to CloAn&,,. The Close of Escrow and Sellers obligation
to sell and convey the Property to Buyer are subject to the satisfaction of the following conditions
or Seller's written waiver (in Seller's sole discretion) of such conditions on or before the Closing
Date:
(a) Buyer has performed all obligations to be performed by Buyer
pursuant to this Agreement before Closing Date.
(b) Buyer's representations and warranties set forth herein are true and
correct in all material respects as of the Closing Date.
5.4 C
�,onve ��tnceof�Fitle. 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 orimplied, 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,
219\3220028.3
that the fbregoing shall not relieve Seller from disclosure of any such conditions of which Seller
has actual knowledge.
5.5 Deliveries 41L josigg.
(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
.11 ("Grant Deed"); (ii) an affidavit or qualifying statement which satisfies the requirements of
paragraph 1445 of the Internal Revenue Code of 1986, as annended, any regulations thereunder
(the "Non -Foreign Affidavit"); (iii) a California Franchise Tax Board form 590 (the "California
Certificate") to satisfy the requirements of Califomia Revenue and Taxation Code Section
18805(b) and 261.31.
(b) Deliveries by Buyer. No less than one (1) business day prior to the
close of escrow, Buyer shall deposit into escrow immediately available funds in the amount, which
together with the Independent Consideration and the Deposits is equal to: (i) the Purchase Price as
adjusted by any prorations between the Parties; (ii) the escrow fees and recording fees; and (iii) the
cost of th.e'ritle Policy.
(c) !Closing. Upon Closing, Escrow Holder shall: (i) record the Grant
Deed.; (ii) disburse to Seller the Purchase Price, less Seller's share of any escrow fees, costs and
expenses; (iii) deliver to Buyer the Non -Foreign Affidavit, the California Certificate and the
original recorded Grant Deed; (iv) pay any commissions and other expenses payable through
escrow; and (vi) distribute to itself the payment of escrow fees and expenses required hereunder.
(d) Closing Costs. Buyer will pay all escrow fees (including the costs
of preparing documents and instruments), and recording fees. Buyer will also pay title insurance
and title report costs. Seller will pay all transfer taxes and 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.
6. REPRESENTATTONS, WARRANT11;"SAND 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. If Buyer detennines it does not wish to proceed, then the terms of Section 3.4 will
apply.
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5-219\3220028.3
(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 terins of this Agreement. This
Agreement has been duly executed by Seller, and upon delivery to and execution by Buyer is a
valid and binding agreement of Seller.
(b) Encumbrances. Seller has not alienated, encumbered, transferred,
moitgaged, 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.
(c) 1"here are no agreements affecting the Property except those which
halve been disclosed by Seller. There are no agreements which will be binding on the Buyer or the
Property after the Close of Escrow, which cannot be terminated on thirty (30) days prior written
notice.
The truth and accuracy of each of the representations and warranties, and
the performance ofall covenants of Seller contained in this Agreement are conditions precedent
to Buyer's obligation to proceed with the Closing hereunder. 'I'he foregoing representations and
warranties shall survive the expiration, tertnination, or close of escrow of this Agreement and shall
not be deemed merged into the deed upon closing.
6.2 Buyer's Representations and Warranties. In addition to the representations,
warranties and covenants of Buyer contained in other sections of this Agreement, Buyer hereby
represents, warrants and covenants to Seller that the statements below in this Section 6.2 are each
true as of the Effective Date, and, if to Buyer's actual knowledge any such statement becomes
untrue prior to Closing, Buyer shall so notify Seller in writing and Seller shall have at least three
(3) business days thereafter to determine if Seller wishes to proceed with Closing.
(a) Buyer is a California limited partnership. Buyer has the Paull right,
capacity, power and authority to enter into and carry out the terins 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 Linder 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 all covenants of Buyer contained in this Agreement are conditions precedent
to Seller" s obligation to proceed with the Closing hereunder.
6.3 Proverty Sold. "ASIS". Buyer specifically acknowledges that the Seller is
selling the Property on an "AS IS", "WHERE IS" and "WITH LI, FAULTS" basis and that,
219\3220028.3
subJect to Seller's representations, warranties, covenants and obligations set forth in this
Agreement, and all exhibits attached hereto and incorporated herein, and any obligations arising
under applicable law, Buyer is not relying on any representations or warranties of any kind
whatsoever, express or implied, from Seller, or its employees, appointed or elected officials,
agents, or brokers as to any matters concerning the Property. The Seller makes no representations
or warranties as to any matters concerning the Property, including without limitation: (i) the
quality, nature, adequacy and physical condition of the Property, (ii) the quality, nature, adequacy,
and physical condition of soils, geology and any groundwater, (iii) the existence, quality, nature,
adequacy and physical condition of utilities serving the Property, (iv) the development potential
of" the Property, and the Property's use, habitability, merchantability, or fitness, suitability, value
or adequacy of" the property for any particular purpose, (v) except as otherwise provided in this
Agreement, the zoning or other legal status of the Property or any other public or private
restrictions on use of the Property, (vi) the compliance of the Property or its operation with any
Environmental Laws, covenants, conditions and restrictions of any governmental or quasi -
governmental entity or of any other person or entity, (vii) the presence or removal of Hazardous
Materials, substances or wastes on, under or about the Property or the adjoining or neighboring
property; (viii) the quality of any labor and materials used in any improvements on the Property,
(ix) the condition of title to the Property, (A) the leases, service contracts, or other agreements
affecting the Property, or (Xi) the economics of the operation of the Property.
7. REMEDIES In the event of a breach or default under this Agreement by Seller, if
such breach or default occurs prior to Close of Escrow, Buyer reserves the right to either (a) seek
specific performance from Seller or (b) to do any of the following: (i) to waive the breach or
default and proceed to close as provided herein; (ii) to extend the time for performance and the
Closing Date until Seller is able to perform; or (iii) to terminate this Agreement upon written notice
to Seller, whereupon Seller shall cause Escrow Holder to return to.Buyer any and all sums placed
into the Escrow by Buyer, and except for the rights and obligations expressly provided to survive
termination of this Agreement, neither party shall have any further obligations or liabilities
hereunder, IN TI -JE EVENT OF A BREACH OR. DEFALJLT HERI`,UNDER. BY BUYER AND
THE CLOSINGDOES NOTOCCUR DUE TO SUCH DEFAl.JLT, SELLER'S SOLE REMEDY
SHALL BE TO RETAIN THE DEPOSIT'S AS LIQUIDATED DAMAGES. THE PARTIES
AGREE THAT IN SUCH INSTANCE, THE DEPOSITS REPRESENT A. REASONABLE
APPROXIMATION OFSELLER'S DAMAGES AND ARE NOT INTENDED AS A
EORFEITIJRE OR PENALTY BUT RATI-JER AN ENFORCEABLE LIQLADATE D
DAMAGES PROVISION PLJRSUANTT0 CALIFORNIA CIVIL CODE SECTION 1671, i,"r
SEQ. IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO LOST PROFITS OR
CONSEQLJENTIAL DAMA.GES AS A RESULT OF THE OTHER PAR. ry',S BREACH OF
'11-11S AGREEMENT
Buyer's Initials Seller's Initials
& 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 procurenient of the Property or negotiation of this
Agreement. Buyer shall indemnify, hold harmless and defend Seller from any and all claims,
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219\3220028.3
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. 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. 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, contractors, and Agency 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
tinder 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 Seiler, or Seller's agents, employees, or contractors. The
indemnification provided pursuant to this Section shall specifically apply to and include claims or
actions brought by or on behalf of employees of Buyer or any of its predecessors in interest and
Buyer hereby expressly waives any immunity to which Buyer may otherwise be entitled under any
industrial or worker's compensation laws. In the event the Seller suffers or incurs any Costs, Buyer
shall pay to Seller the total of all such Costs suffered or incurred by the Seller upon demand
therefore by Seller. The indemnification provided pursuant to this Section shall include, without
limitation, all loss or damage sustained by the Seller due to any Hazardous Materials: (a) that are
present or suspected by a governmental agency having jurisdiction to be present in the Property or
in the air, soil, soil gas, groundwater, or surface water at, on, about, above, under, or within the
Property (or any portion thereof) or to have emanated from the Property, or (b) that migrate, flow,
percolate, diffuse, or in any way move onto, into, or under the air, soil, soil gas, groundwater, or
surface water at, on, about, around, above, under, or within the Property (or any portion thereof)
after the date of this Agreement as a result of Seller's or its predecessors" activities on the Property,
or those of Seller's agents, employees, or contractors. The provisions of this Section 10 shall
survive the termination of this Agreement and the Close of Escrow,.
11. RELEASE BY BUYER.. Effective upon the Close of Escrow, except with respect
to the representations and warranties of Seller under Section 6.1 of this Agreement, Buyer waives
releases, remises, acquits and forever discharges Seller, and its officers, directors, board members,
managers, employees and agents, Agency, and any other person acting on behalf of Seller, from
any and all claims, actions, causes of' action, demands, rights, dannages, costs, expenses and
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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 Section1I I shall survive the
termination of this Agreement and the Close of Escrow.
BUYER ACKNOWLEDGES THAT BuYER IS FAMILIAR WITH SECTION 1542 OFTHE
CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS TE AT
THE CREDITOR. OR RE'LEASMG PARTY DOES NOTKNOW 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. C.D.R. RELEASED PARTY.
By INITIALING BELOW, BUYER. EXPRESSLY WAIVES THE BENE -FITS OF SECTION 1.542
OF THE CALIFORNIA CIVIL CODE WITH RE, SPECTTO THE FOREGOING RELEASE:
Buyer's initials:
12. HAZARDOUS MAIERIALS, _D.E.FINITIONS.
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 "Ilazardous 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, arid synthetic gas usable
as fuel, perchlorate, and methyl tent butyl ether, whether or not defined as a hazardous waste or
hazardous substance in the Environmental Laws.
12.2 Environmental Laws. As used in this Agreement, "Environmental Laws"
means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance
documents, judgments, governmental authorizations or directives, or any other requirements of
governmental authorities, as may presently exist, or as may be amended or supplemented, or
hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage,
transportation or disposal of Hazardous Materials, or the protection of the environment or human,
plant or animal health, including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. § 9601), theflazardous Materials Transportation Act (49
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219\3220028.3
U.S.C. § 1801 est s€ the Meso urce Conservation and Recovery Act (42 U.S.C. § 6901 et seq.),
the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C.
§ 7401 et seq.), the'roxic Substances Control Act (.15 U.S.C. § 2601 et seq.), 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 elseq.), the Porter- Cologrie 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 Entbreement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
Seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25 100 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.
Flealth and Safety Code, Section 25300 et seq.).
13. M.]SCELLANEOUS.
13.1 Attorneys' Fees. Ifany 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, Lind
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 can 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 Qovernin > I aver. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
.13.6 Integrated A&,,reement-, — --odifications.. This Agreement contains all the
M
agreements of the Parties concerning the suject hereof any cannot be amended or modified except
by a written instrument executed and delivered by the parties. There are no representations,
agreements, arrangements or understandings, either oral or written, between or among the parties
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219\3220028.3
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 ainong the Parties upon which any party is relying upon in entering this
Agreement that are riot fully expressed herein.
13.7 Severabilfty. 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 riot be affected by the legality, enforceability, or validity oft e remainder of this Agreement.
If any provision or part thereol"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'th.e 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 (ie., 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: 938 Linden, LP
Attn: Robert Delue
2486 Butternut Drive
Ifillsborouo, i, CA 94010
Telephone No.: 650-342-2524
With a copy to (which shall not constitute notice):
Chris Giotinis
SC Properties
311 S. Ellsworth Ave
San Mateo, CA 94401
Telephone No.: 650-4654028
Email: cgiotinis(a-,)scpropsm.com
'ro Seller: City of' South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager, Mike Futrell
Telephone No.: (650) 829 6620
Fax (650) 829-6609
If to Escrow I-Iolder: Katie Berggren
219\32200283
North American Title Company
66 Bovet Rd, Suite 200
San Mateo, CA 94402
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 perfon.,nance of each and every
obligation under this Agreement.
13.10 1
�)�as of�Week. If any date fbr exercise of any right, giving of any
notice, or performance of any provision of this Agree ment 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 ConsgnLand.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. 'I"he 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 apl)ropriate 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 beimplied 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.
1114 SSignatures/Couunterparts. This Agreement may be executed in two
or more counterparts, each of` which shall be deemed art 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 qtrid Deliver �W-Qejj�r ofAgyreement. 'Notwithstandinganything; to the
contrary contained. in this Agreement, the parties intend that this Agreement shall be deemed
effective, and delivered for all purposes under this Agreement, and for the calculation of any
statutory time periods based on the date an agreement between parties is effective, executed, or
delivered, as of the Effective Date.
13.16 Representation on AuthojjjX_of" j!g.q:AKs. 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
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execution and delivery of the Agreement and the performance of such party's obligations
hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding
on such party and enforceable in accordance with its terms.
13.17 Possession. At Closing, Seller shall deliver sole and exclusive
possession of the Property to Buyer.
13.18 Approvals. Whenever this Agreement calls for Seller approval,
consent, extension or waiver, the written approval, consent, or waiver of the Seller's Executive
Director or his or her designee(s) shall constitute the approval, consent, extension or waiver of the
Seller, without further authorization required from the Seller's Council. The Seller hereby
authorizes the City Manager and his or her designee(s) to deliver any such approvals, consents, or
extensions or waivers as are required by this Agreement, or that do not otherwise reduce Seller's
rights under this Agreement, and to waive requirements under this Agreement, on behalf of the
Seller.
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3-
21913220028.3
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
SELLER:
CITY OF SOUTH SAN FRANCISCO
By:
Mike Futrell
City Manager
ATTEST:
By_.. ......._.._ --- .. --
City Clerk
APPROVED AS TO FORM:
By:
Jason Rosenberg
City Attorney
BUYER:
938 Linden, LP,
a limited partnership
By_-----
Title:
APPROVED AS TO FORM:
By:
Counsel for Buyer
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LIST OF EXHIBITS
Exhibit A Legal Description
Exhibit B Grant Deed
Exhibit C Permitted Exceptions
219\3220028.3
Exhibit A
LEGAL DESCRIPTION
219\3220028.3
Exhibit B
-l7-
u/;o2zon m.3
Exhibit C
PERMITTED EXCEPTIONS
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