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HomeMy WebLinkAboutReso 161-2019 (19-926)City of South San Francisco P.O. Box 711 (City Hall, • 400 Grand Avenue) South San Francisco, CA City Council Resolution: RES 161-2019 File Number: 19-926 Enactment Number: RES 161-2019 RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT ("BNRA") BETWEEN THE CITY OF SOUTH SAN FRANCISCO, AND BADEN DEVELOPMENT, LLC, FOR THE PROPERTY LOCATED AT 432 BADEN AVENUE, AND AUTHORIZING THE CITY MANAGER TO SIGN THE AGREEMENT. WHEREAS, on June 29, 2011, the Legislature of the State of California ("State") adopted Assembly Bill xl 26 ("AB 26"), which amended provisions of the State's Community Redevelopment Law (Health and Safety Code sections 33000 et seq.) ("Dissolution Law"), pursuant to which the former Redevelopment Agency of the City of South San Francisco ("City") was dissolved on February 1, 2012; and WHEREAS, the City elected to become the Successor Agency to the Redevelopment Agency of the City of South San Francisco ("Successor Agency"); and WHEREAS, pursuant to Health and Safety Code Section 34191.5(c)(2)(C), property shall not be transferred to a successor agency, city, county or city and county, unless a Long Range Property Management Plan ("LRPMP") has been approved by the Oversight Board and the California Department of Finance ("DOF"); and WHEREAS, in accordance with the Dissolution Law, the Successor Agency prepared a LRPMP, which was approved by a resolution of the Oversight Board for the Successor Agency to the Redevelopment Agency of the City of South San Francisco ("Oversight Board") on May 21, 2015, and was approved by the DOF on October 1, 2015; and WHEREAS, consistent with the Dissolution Law and the LRPMP, certain real properties located in the City of South San Francisco, that were previously owned by the former Redevelopment Agency, were transferred to the Successor Agency ("Agency Properties"); and WHEREAS, on October 18, 2016, the City entered into an Amended and Restated Master Agreement for Taxing Entity Compensation ("Compensation Agreement") with the various local agencies who receive shares of property tax revenues from the former redevelopment project area ("Taxing Entities"), which provides that upon approval by the Oversight Board of the sale price, and consistent with the LRPMP, the proceeds from the sale of any of the Agency Properties will be distributed to the Taxing Entities in accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former Redevelopment Agency; and WHEREAS, the LRPMP, prepared by the Successor Agency and approved by the Oversight Board for City of South San Francisco Page 1 File Number: 19-926 Enactment Number: RES 161-2019 the Successor Agency to the Redevelopment Agency of the City of South San Francisco ("Oversight Board"), designated 432 Baden Avenue ("the Site"), County Assessor' s Parcel Number 012-321-160 ("Property"), to be sold, with the proceeds of the sale distributed to the taxing entities; and, WHEREAS, to carry out the terms of the LRPMP, the Successor Agency transferred the Agency Properties, including the Property, to the City for disposition consistent with the terms of the LRPMP; and, WHEREAS, The Property was transferred from the Agency to the City pursuant to Grant Deeds recorded on May 16, 2017; and, WHEREAS, Baden Development, LLC ("Developer") purchased 428 Baden Avenue for development into a small multi -family housing project; and, WHEREAS, during the entitlement process for 428 Baden Avenue, the developer approached the City with a proposal to purchase the adjacent parcel at 432 Baden in order to assemble land for a larger housing project; and, WHEREAS, the Developer made an offer to purchase the Site by submitting a Letter of Intent ("LOI") on September 23, 2019; and, WHEREAS, on October 9, 2019, in closed session, the City Council ("Council") considered and accepted the LOI; and, WHEREAS, Council directed staff to negotiate a Purchase and Sale Agreement ("PSA") with the developer; and, WHEREAS, the California Legislature adopted several bills this year impacting property disposition; and, WHEREAS, Assembly Bill 1486 ("AB 1486") impacts the disposition of 432 Baden Avenue; and, WHEREAS, the disposition of the Site will require following the disposition process regulated by AB 1486 process; and, WHEREAS, this will cause a delay of between 60 and 150 days because the City must first offer interested affordable housing developers right of first refusal to negotiate for the purchase of the property; and, WHEREAS, any residential constructed on the site would be subject to 15% Affordable Housing restrictions if the development is comprised of 10 or more units; and, WHEREAS, the development proposal presently complies with the City's Inclusionary Housing Ordinance which requires the provision of 10% Below Market Rate ("BMR") units because their entitlement application was deemed complete before November 1, 2019 which is when the City's 15% BMR requirement came into effect; and, City of South San Francisco Page 2 File Number. 19-926 Enactment Number. RES 161-2019 WHEREAS, AB 1486 comes into effect on January 1, 2020, and would apply to the site if the City and Developer are not in a binding agreement by December 31, 2019. WHEREAS, the City and Developer are still in final negotiations on the deal points of the PSA which requires the San Mateo County Countywide Oversight Board approval; and, WHEREAS, the PSA could not be completely approved and executed before December 31, 2019; and, WHEREAS, the City and Developer must enter into an Exclusive Negotiating Rights Agreement ("BNRA") which would satisfy the condition of binding agreement and allow both teams to negotiations diligently, attached hereto as Exhibit A. NOW, THEREFORE, the City Council of the City of South San Francisco does hereby resolve as follows: 1. The Recitals set forth above are true and correct, and are incorporated herein by reference. 2. The Agreement, in the form attached hereto as Exhibit A, is hereby approved, and the City Manager or his designee is hereby authorized to execute it on behalf of the City of South San Francisco; to make revisions to the Agreement, with review and approval by the City Attorney, which do not materially or substantially increase the City's obligations thereunder; to sign all documents; to make all approvals and take all actions necessary or appropriate to carry out and implement the intent of this Resolution. Exhibit A: 432 Baden ENRA (City of SSF and Baden Development At a meeting of the Special City Council on 11/25/2019, a motion was made by Councilmember Addiego, seconded by Councilmember Nagales, that this Resolution be approved. The motion passed. Yes: 5 Councilmember Nagales, Mayor Matsumoto, Councilmember Addiego, Councilmember Nicolas, and Vice Mayor Garbarino Attest by 4 IL if sa Govea Acosta City of South San Francisco Page 3 0 EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT by and amongst BADEN DEVELOPMENT, LLC, and CITY OF SOUTH SAN FRANCISCO EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT -1- THIS EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT (this “Agreement” or “ENRA”) is entered into by and between BADEN DEVELOPMENT, LLC, a California limited liability company (“Developer”), and the CITY OF SOUTH SAN FRANCISCO, a municipal corporation (“City”), dated as of ______________ (the “Effective Date”). Developer, and City are each referred to as “Party” or collectively referred to as the “Parties.” WHEREAS, the City is the owner of certain property certain real property (the “Property”) located in the City of South San Francisco, California, known as County Assessor’s Parcel Numbers (“APN”) 012-321-160 (432 Baden Avenue), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference; and, WHEREAS, the Property was transferred from the City of South San Francisco to the South San Francisco Successor Agency (“Agency”) pursuant to Grant Deeds recorded on March 11, 2011; and, WHEREAS, The Property was transferred from the Agency to the City pursuant to Grant Deeds recorded on May 16, 2017; and, WHEREAS, on June 29, 2011 the legislature of the State of California (the “State”) adopted Assembly Bill x1 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 Agency was dissolved on February 1, 2012; and, WHEREAS, pursuant to the Dissolution Law, the Agency has prepared and the Oversight Board and DOF has approved a Long Range Property Management Plan (“LRPMP”); and, WHEREAS, the City, is interested in selling the Property to Developer contingent upon Developer supplying a Letter of Interest (“LOI”), preparing all appropriate environmental review documents, and securing land use entitlements approved by the City for the construction of approximately 36 multi-family residential units (“Project”) on the Property; and, WHEREAS, Developer anticipates expending funds to prepare environmental review documents, architectural and design drawings and conduct certain studies that are needed to assess the feasibility of the Project, consistent with the Downtown Station Area Plan (“DSA”), and DSA Environmental Impact Report (“EIR”), and requires a grant of exclusive negotiating rights in order to be willing to make such expenditures; and WHEREAS, at its meeting on ______________ the City approved this Agreement and directed staff to negotiate a Purchase and Sale Agreement (“Purchase Agreement”) for the Property with Developer; and 2 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 are hereby acknowledged, the Parties agree as follows. 1. Good Faith Efforts to Negotiate. The Parties will use their best efforts to successfully negotiate (i) a Purchase Agreement which will describe the terms and conditions governing the purchase of the Property by Developer, and (ii) a Development Agreement between the City and Developer that will set forth requirements and entitlements for the Project. The Parties will diligently and in good faith pursue such negotiations. Furthermore, the Parties will use their best efforts to obtain any third-party consent, authorization, approval, or exemption required in connection with the transactions contemplated hereby. This Agreement does not impose a binding obligation on City to convey any interest in the Property to Developer, nor does it obligate City to grant any approvals or authorizations required for the Property, the Project or any other development proposal or improvements constructed thereon. a. If Developer has not continued to negotiate diligently and in good faith, City will give written notice thereof to Developer who will then have ten (10) business days to commence negotiating in good faith. Following the failure of Developer to thereafter commence negotiating in good faith within such ten (10) business day period, this Agreement may be terminated by City. b. If City has not continued to negotiate diligently and in good faith, Developer will give written notice thereof to City which will then have ten (10) business days to commence negotiating in good faith. Following the failure of City to thereafter commence negotiating in good faith within such ten (10) business-day period, this Agreement may be terminated by Developer. 2. Developer’s Exclusive Right to Negotiate With City. City 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 submission of bids, offers or proposals by any person or entity with respect to the acquisition of any interest in the Property or the development of the Property, and City will not engage any broker, financial adviser or consultant to initiate or encourage proposals or offers from other parties with respect to the disposition or development of the Property or any portion thereof. Furthermore, City will not, directly or indirectly, through any officer, employee, agent or otherwise, engage in negotiations concerning any such transaction with, or provide information to, any person other than Developer and its representatives with a view to engaging, or preparing to engage, that person with respect to the disposition or development of the Property or any portion thereof. 3. Term. a. The term of this Agreement (“Term”) commences on the Effective Date, and will terminate six (6) months from the Effective Date, unless extended or earlier terminated as provided herein. 3 b. Developer and the City agree to the Schedule of Performance that is attached hereto as Exhibit B. c. During the Negotiating Period Developer shall commence due diligence activities, including but not limited to preparation of a complete application to the City for the required entitlements allowing development of the Project (“Planning Application”), soils report, hazardous materials report, financial feasibility and title adequacy. d. The Term of this Agreement may be administratively extended for up to a maximum of three separate ninety (90) day periods upon the receipt of an additional non-refundable payment by Developer of five thousand dollars ($5,000) for each ninety day extension period (“ENRA Extension Payment”), and the consent of the City acting through and at the discretion of its City Manager or his/her designee (“City Manager”). Developer understands that the City will only consider extension(s) of the Term of this Agreement where Developer has demonstrated, to the City’s satisfaction, substantial progress toward development of the Property, which may include submittal of a development application, submittal of environmental review documents necessary to satisfy compliance with CEQA, submittal of architecture and construction plans, payment of any applicable processing and plan check fees, or pursuing land use entitlements for the Project. 4. Relationship of the Parties. Nothing in this Agreement creates between the Parties the relationship of lessor and lessee, of buyer and seller, or of partners or joint venturers. 5. Payment for City Costs. a. During the Term of this Agreement, Developer will also reimburse City for all staff and City consultant time incurred in preparing the Purchase Agreement, Development Agreement, entitlements, and any related documents for the disposition of Property to Developer. Developer has, on October 18, 2019, remitted to City an initial payment in the amount of Twenty-Five Thousand Dollars ($25,000) in immediately available funds (“Payment”). City will deposit the Payment in an interest bearing account of City and any interest, when received by City, will become part of the Payment. The Payment may be drawn upon by City to reimburse staff, City Attorney, and City consultant costs for preparing the Purchase and Development Agreements, entitlements, and any other related documents, at their standard published hourly rates. Should the full amount of the Payment be exhausted during the Term of this Agreement, City may require the Developer to provide additional funds necessary to reimburse staff and consultant costs reasonably expended in connection with preparation of the Purchase and Development Agreements and any related documents. Documentation of City’s rate schedule for staff, staff time spent, and consultant costs will be retained by City and provided to Developer upon request. Any amount remaining from the Payment after all post-closing obligations have been successfully and completely performed by Developer pursuant to the Term Sheet agreed to by the Parties, and taking into account expenditures authorized by 4 Section 5(a) above, will be returned to Developer within a reasonable period of time unless Developer defaults under the terms of this Agreement in which case City shall retain any remaining Payment. b. In addition to Agency’s costs discussed herein, Developer shall be subject to all applicable fees imposed by the City for processing land use entitlements as set forth in the City’s current adopted Master Fee Schedule and any applicable cost recovery and indemnification agreements. 6. Terms and Conditions of the Purchase Agreement. The Parties agree to use their best efforts to successfully negotiate a Purchase Agreement including, but not limited to, the terms and price of the purchase. The Parties acknowledge that the proposed purchase price must be approved by the San Mateo County Countywide Oversight Board prior to execution of the Purchase Agreement. The Parties agree the terms shall be generally based on those set forth herein. 7. Developer’s Studies; Right of Entry. a. During the Term of this Agreement, Developer will use its best efforts to prepare, at Developer’s expense, any studies, surveys, plans, specifications and reports (“Developer’s Studies”) Developer deems necessary or desirable in Developer’s sole discretion, to initiate its due diligence for the Property. Developer’s Studies may include, without limitation, title investigation, marketing, feasibility, soils, seismic and environmental studies, financial feasibility analyses and design studies. The Developer will have rights of access to the Property to prepare the Developer’s Studies however, in no event shall Developer’s right of access granted hereby interfere with or in any way impede the City’s operation of the parking lot located on the Property. b. The Developer and its consultants shall have the right to enter upon the Property during normal business hours to conduct investigations in accordance with this Agreement. In connection with such entry and investigation, the Developer shall: (i) give the City, or its designee at least 24 hours’ advance notice; (ii) repair and restore any damage Developer may cause; and (iii) carry liability insurance covering the right of entry naming the City as an additional insured. c. Developer will provide the City with work plans, drawings, and descriptions of any intrusive sampling it intends to do. Developer must keep the Property in a safe condition during its entry. Developer shall repair, restore and return the Property to its condition immediately preceding Developer’s entry thereon at Developer’s sole expense. d. Without limiting any other indemnity provisions set forth in this Agreement, Developer shall indemnify, defend (with counsel approved by City) and hold the City, its officials, officers, employees, consultants, contractors and volunteers ("City Indemnitees") harmless from and against all claims resulting from or arising in connection with entry upon the Property by Developer or Developer’s agents, 5 employees, consultants, contractors or subcontractors pursuant to this Section 7; provided however, Developer will have no indemnification obligation with respect to (y) the gross negligence or willful misconduct of any City Indemnitees, or (z) Developer’s mere discovery of any pre-existing condition of the Property to the extent not exacerbated or enlarged as a result of Developer’s investigations conducted in furtherance of Developer’s Studies except that such discovery shall not effect Developer’s obligation to purchase the Property AS IS or any claims raised by the City for its failure to do so. Developer’s indemnification obligations set forth in this Section 7 shall survive the termination of this Agreement and shall apply to any claims filed against the City within eighteen months of termination of this Agreement. e. If upon expiration of the Term of this Agreement the Parties have not successfully negotiated a Purchase Agreement, Developer will provide City within fifteen (15) days following said date of expiration copies of the Developer’s Studies completed by such date, not including the intellectual property of Developer, provided that the City first delivers to Developer payment in full for all of Developer’s actual costs paid to vendors who prepared these Developer’s Studies. Developer will also provide City with copies of any Developer’s Studies completed after the expiration of the Term within fifteen (15) days following completion of such studies, or if Developer intends not to complete any Developer Studies, Developer will provide City with copies of such uncompleted studies, again provided that the City first delivers to Developer payment in full for all of Developer’s actual costs paid to vendors who prepared these Developer’s Studies. 8. City’s Reports and Studies. Within ten (10) days following the Effective Date, City will make available to Developer for review or copying at Developer’s expense all nonprivileged studies, surveys, plans, specifications, reports, and other documents with respect to the Property that City has in its possession or control, which have not already been provided. Studies or documents prepared by City and its agents solely for the purpose of negotiating the terms of a Purchase Agreement are not required to be provided by City to Developer and are excluded from this requirement 9. Full Disclosure. Developer is required to make full disclosure to City of its principals; officers; major stockholders, partners or members; joint venturers; negotiators; development managers; consultants and directly involved managerial employees (collectively, “Developer Parties”); and all other material information concerning Developer. Any change in the identity of the Developer Parties will be subject to the approval of City, which will not be unreasonably withheld. Developer will make and maintain full disclosure to City of its methods of financing to be used in the acquisition and development of the Property. 10. Periodic Reporting to Governing Bodies. City will report periodically to the City Council and/or the Oversight Board of the Successor Agency on the status of negotiations, and Developer may be asked to attend such meetings to provide those bodies with a status update of their development efforts related to this Agreement. 11. Reserved. 6 12. Confidentiality; Dissemination of Information. To the extent permitted by law, during the term of this Agreement, each Party will obtain the consent of the other Party prior to issuing or permitting any of its officers, employees or agents to issue any press release or other information to the press with respect to this Agreement; provided however, no Party will be prohibited from supplying any information to 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. Nothing contained in this Agreement will prevent either 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. 13. Execution of Purchase Agreement. The City has no legal obligation to grant any approvals or authorizations for the sale of the Property, the Project or any other proposed development thereon until the Purchase Agreement has been approved by the City and, the purchase price has been approved by San Mateo County Countywide Oversight Board. Such consideration and potential approval shall not occur until the City has completed, considered and certified/approved any required CEQA environmental review documents. 14. Termination. a. This Agreement may be terminated at any time by mutual consent of the Parties. b. City will have the right to terminate this Agreement upon its good faith determination that Developer is not proceeding diligently and in good faith to carry out its obligations pursuant to this Agreement. City will exercise such right in accordance with the provisions set forth in Section 1 of this Agreement. c. Developer will have the right to terminate this Agreement, in accordance with the provisions set forth in Section 1 of this Agreement upon its good faith determination that City is not proceeding diligently and in good faith to carry out its obligations pursuant to this Agreement, if the results of its investigation of the Property are unsatisfactory, in Developer’s sole and absolute discretion, with respect to Developer’s desired development activities or if Developer is unable to obtain other necessary approvals, rights or interests. d. Neither Party will have the right to seek an award of damages as a result of the termination of this Agreement pursuant to this Section. 15. Effect of Termination. Upon termination as provided herein, or upon the expiration of the Term and any extensions thereof without the Parties having successfully negotiated a Purchase Agreement, this Agreement will forthwith be void, and there will be no further liability or obligation on the part of either of the Parties or their respective officers, employees, agents or other representatives; provided however, the provisions of Section 12 (Confidentiality; Dissemination of Information), Section 17 (Indemnification), and Section 21 (Brokers) will survive such termination. Provided further, that upon termination or expiration of this Agreement without the Parties having successfully negotiated a Purchase Agreement, Developer will deliver to City all of the Developer’s Studies pursuant 7 to the provisions of Section 7 of this Agreement, including the condition stated in Section 7 that the City must pay Developer for its actual costs in obtaining those Studies before Developer is obligated to deliver them to City. 16. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement will be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices will be sent by any one or more of the following methods: a. Personal delivery, in which case notice is effective upon delivery; b. Certified or registered mail, return receipt requested, in which case notice will be deemed delivered on receipt if delivery is confirmed by a return receipt; c. Nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; d. Email transmission to the email addresses noted below, in which case notice will be deemed delivered upon transmittal, provided that a duplicate hard copy of the email is promptly delivered by first-class or certified mail or by overnight delivery. Agency/City: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: City Manager Tel (650) 877-8501 Email: [email protected] cc: [email protected] with a copy to: Meyers Nave Attn: Sky Woodruff 575 Market Street, Suite 2080 San Francisco, CA 94105 Tel (415) 421-3711 Email: [email protected] Developer: BADEN DEVELOPMENT, LLC 311 9th Avenue San Mateo, CA 94401 Attention: Victor Lo Telephone: (415) 297 0709 Email: [email protected] with a copy to: 8 Schinner & Shain, LLP Attn: R. Ryan Shain 96 Jessie Street San Francisco, CA 94105 Telephone: (310) 913-4582 Email: [email protected] 17. Indemnification. Developer hereby covenants, on behalf of itself and its permitted successors and assigns, to indemnify, hold harmless and defend the City of South San Francisco and their elected and appointed officials, officers, agents, representatives and employees (“Indemnitees”) from and against all claims, costs (including without limitation reasonable attorneys’ fees and litigation costs) and liability, arising out of or in connection with this Agreement and/or arising out of or in connection with the Developer’s access to and entry on the Property pursuant to Section 7 of this Agreement; provided however, Developer will have no indemnification obligation with respect to (y) the gross negligence or willful misconduct of any Indemnitee, or (z) Developer’s mere discovery of any pre-existing condition of the Property to the extent not exacerbated or enlarged as a result of Developer’s investigations conducted in furtherance of Developer’s Studies except that such discovery shall not effect Developer’s obligation to purchase the Property AS IS or any claims raised by the City for its failure to do so.. 18. Severability. If any term or provision of this Agreement or the application thereof will, to any extent, be held to be invalid or unenforceable, such term or provision will be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms and provisions of this Agreement or the application of such terms and provisions to circumstances other than those as to which it is held invalid or unenforceable unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provision. 19. Entire Agreement; Amendments In Writing; Counterparts. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral and written, between the Parties with respect to such subject matter. This Agreement may be amended only by a written instrument executed by the Parties or their successors in interest. This Agreement may be executed in multiple counterparts, each of which will be an original and all of which together will constitute one agreement. 20. Successors and Assigns; No Third-Party Beneficiaries. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided however, that neither Party will transfer or assign any of such Party’s rights hereunder by operation of law or otherwise without the prior written consent of the other Party, and any such transfer or assignment without such consent will be void. Notwithstanding the foregoing, Developer is permitted to assign this Agreement without such written consent, provided that Developer assigns this Agreement to (i) an entity that is wholly controlled by Developer, or (ii) an entity in which the Developer is a member and has day to day management responsibilities for such entity. Subject to the immediately preceding sentence, this Agreement is not intended to benefit, and will not run to the benefit 9 of or be enforceable by, any other person or entity other than the Parties and their permitted successors and assigns. 21. Brokers. Each Party warrants and represents to the other that no brokers have been retained or consulted in connection with this transaction. Each Party agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs or liabilities arising in connection with a breach of this warranty and representation. The terms of this Section will survive the expiration or earlier termination of this Agreement. 22. Approvals. Unless otherwise provided in this Agreement, the City Manager will be authorized to enter into all written approvals, consents or waivers by the City. 23. Captions. The captions of the sections and articles of this Agreement are for convenience only and are not intended to affect the interpretation or construction of the provisions hereof. 24. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California. 25. Dispute Resolution. Any controversy, dispute or claim related to or arising from this Agreement or in any way arising from the dealings of the Parties with one another, shall be resolved by the following steps in the following sequence: (A) By non-binding Mediation before, and in accordance with the rules of, the Judicial Arbitration and Mediation Services ("JAMS"), conducted by a retired Judge, with exclusive venue in South San Francisco, California and in no other place. (B) If that Mediation fails to resolve the dispute, then by binding Arbitration before, and in accordance with the rules of, JAMS, conducted by a retired Judge, with exclusive venue in South San Francisco, California and in no other place. In any such arbitration, the prevailing party shall be entitled to an award of reasonable attorney's fees and costs. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. ~ SIGNATURES ON FOLLOWING PAGE ~ 10 CITY By: _______________________________ Mike Futrell City Manager ATTEST: By: _______________________________ City Clerk APPROVED AS TO FORM: By: _______________________________ Sky Woodruff City Attorney DEVELOPER BADEN DEVELOPMENT, LLC, a California limited liability company By: _______________________________ Victor Lo Its: Manager 11 EXHIBIT A PROPERTY That real property situated in the State of California, County of San Mateo, City of South San Francisco, and described as Lot 8 in Block 117, as shown on that certain map entitled “South San Francisco SAN MATEO CO. CAL. PLAT. NO.1”, filed in the office of the County Recorder of 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. APN: 012-321-160 JPN: 012-032-321-16 A 12 EXHIBIT B SCHEDULE OF PERFORMANCE City Council Meeting Approval of ENRA Considered November 25, 2019 ENRA Effective Date November 26, 2019 Expiration of six (6) Month Exclusive Negotiating Period for Purchase and Sale Agreement June 26, 2020 Additional 90 day extension (if exercised) August 26, 2020