HomeMy WebLinkAboutReso 153-2019 (19-910)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 153-2019
File Number: 19-910 Enactment Number: RES 153-2019
RESOLUTION APPROVING A PURCHASE AND SALE AND
AFFORDABLE HOUSING AGREEMENT WITH SSF HOUSING
PARTNERS LLC, FOR THE DISPOSITION OF CITY -OWNED
PARCELS AT 1051 MISSION ROAD (APNS 093-312-050 AND
093-312-060) FOR $5,500,000.
WHEREAS, the City of South San Francisco ("City") is the owner of certain real property located in the
City of South San Francisco, California, with the address of 1051 Mission Road, known as County
Assessor's Parcel Numbers ("APN") 093-312-050 and 093-312-060 ("1051 Mission Road"); 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 State's Community Redevelopment Law (Health
and Safety Code sections 33000 et seq.) (the "Dissolution Law"), pursuant to which the former
Redevelopment Agency of the City of South San Francisco was dissolved on February 1, 2012. The City
became the Successor Agency to the Redevelopment Agency of the City of South San Francisco
("Successor Agency"), and in accordance with the Dissolution Law, the Successor 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 of South San
Francisco ("Oversight Board") on May 21, 2015, and was approved by the Department of Finance
("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, on February 8, 2017, the City adopted Resolution 16-2017 approving the transfer of the
Agency Properties from the Successor Agency to the City and in accordance with the requirements set
forth in the LRPMP, and on February 21, 2017, the Oversight Board adopted a resolution approving the
transfer of the Redevelopment Properties from the Successor Agency to the City; and
City of South San Francisco Page 1
File Number: 19-910
Enactment Number: RES 153-2019
WHEREAS, consistent with the LRPMP and the Oversight Board resolution, the Successor Agency and
City executed and recorded grant deeds transferring the Agency Properties to the City; and
WHEREAS, 1051 Mission Road, also known as the former Public Utilities Commission Opportunity
Site ("PUC Site") is one of the Agency Properties and is subject to the provisions of the LRPMP and the
Compensation Agreement; and
WHEREAS, to dispose of the PUC Site in a manner consistent with the LRPMP, on May 1, 2017 the
City issued a Request for Qualifications (RFQ) for a well-qualified development team to create a
high-quality, mixed-use, transit -oriented development on the PUC Site;
WHEREAS, pursuant to publicly noticed interviews and selection process, SSF Housing Partners LLC
("Developer") was selected as the developer; and the City and Developer entered into an Exclusive
Negotiating Rights Agreement ("ENRA"); and
WHEREAS, the ENRA was effective on July 23, 2018, with an initial term of 365 days; and
WHEREAS, on May 21, 2019, the City approved a 161 day ENRA extension, expiring on December 31,
2019; and
WHEREAS, the Developer remitted an ENRA extension payment to the City in the amount of $67,083;
and
WHEREAS, the Developer has proposed construction of a high-density mixed-use residential
development, consisting of 800 rental units of which 158 will be affordable, an approximately 8,307 SF
childcare facility, approximately 12,992 SF of retail space (market hall), 1 acre of public open space,
pedestrian trail improvements and 800 parking spaces at 1051 Mission Road; and
WHEREAS, the City and Developer have negotiated a Purchase and Sale Agreement ("PSA") for the
disposition 1051 Mission Road, which is attached to this resolution as Exhibit A; and
WHEREAS, the City obtained an appraisal of the PUC Site properties located at 1051 Mission Road;
and
WHEREAS, the City and Developer have also negotiated an Affordable Housing Agreement with
BRIDGE Housing, Inc. ("AHA") for Parcel 1, Building C2 located at 1051 Mission Road, and are
included as Exhibit B; and
WHEREAS, pursuant to redevelopment law and the Master Compensation Agreement, final approval of
the sale price of 1051 Mission Road must be approved by the Oversight Board to the Successor Agency
of South San Francisco; and
WHEREAS, the City and the Developer now wish to enter into a Purchase and Sale Agreement ("PSA")
for 1051 Mission Road, attached hereto and incorporated herein as Exhibit A; and
City of South San Francisco Page 2
File Number. 19-910
Enactment Number. RES 153-2019
WHEREAS, approval of the PSA is considered a "project" for purposes of the California Environmental
Quality Act, Pub. Resources Code §21000, et seq. ("CEQA") and the City Council has considered the
environmental impacts by separate resolution; and
WHEREAS, on October 17, 2019, the Planning Commission determined that the proposed disposition of
the PUC Site properties at 1051 Mission Road and the proposed development thereon was consistent
with the South San Francisco General Plan and El Camino Real/Chestnut Area Plan.
NOW THEREFORE IT BE RESOLVED that the City Council of the City of South San Francisco does
hereby resolve as follows:
1. Determines that the recitals are true and correct.
2. Subject to approval by the Oversight Board of the final sale price, approves a PSA with SSF
Housing Partners LLC in substantially the same form attached hereto as Exhibit A, for the
disposition of 1051 Mission Road (APNs 093-312-050 and 093-312-060) for $5,500,000
3. Approves the Affordable Housing Agreement and the Assignment and Assumption
Agreement ("A&A") with BRIDGE Housing Corporation for 1051 Mission Road, in
substantially the same form attached to the PSA.
4. Authorizes the City Manager to enter into and execute on behalf of the City Council the
PSA, the AHA, and the A&A, in substantially the same form attached to the PSA and to
make any non -material revisions, amendments or modifications deemed necessary to carry
out the intent of this Resolution and subject to the Oversight Board's review of this
transaction and approval and direction regarding the final sale price.
At a meeting of the City Council on 11/13/2019, a motion was made by Councilmember Addiego, seconded
by Councilmember Nicolas, that this Resolution be approved. The motion passed.
Yes: 4 Mayor Matsumoto, Councilmember Addiego, Councilmember Nagales, and
Councilmember Nicolas
No: 1 Vice Mayo, Garbarino
Attest by Z.1, An— 4_,J�
sa Govea Acosta, City Clerk
City of South San Francisco Page 3
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(FORMER PUC SITES B AND C)
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (“this Agreement”) is made and entered into as of ____________, 2019 (the
“Date of Agreement”) by and between the City of South San Francisco (“Seller” or “City”) and
SSF PUC Housing Partners, LLC, a Delaware limited liability company (“Buyer” or
“Developer”). Seller and Buyer are each individually referred to herein as a “Party” and,
collectively, as the “Parties.”
RECITALS
A. WHEREAS, Seller is the fee owner of certain real property located on the
approximately 1.7-acre “Site B,” the approximately 3.43-acre “Site C1,” (including 2.93 acres of
developable property and a 21,821 sf portion of undevelopable Colma Creek), the approximately
1.48-acre “Site C2”, and the approximately 0.38-acre “Oak Avenue Phase 1 Extension
Property,” each as more particularly described and depicted in Exhibit A. Collectively, Site C1,
Site C2, Site B and the Oak Avenue Phase 1 Extension Property are the “Property.” Additionally,
the City will obtain and grant to Developer an easement or other similar legal or equitable right
to construct and maintain improvements on the following, each as defined in this Agreement and
depicted on Exhibit A:
(a) certain publicly-accessible open space improvements on (1) an approximately 3,286
square foot portion and an approximately 8,550 sf portion of existing City-owned property (“City
Open Space Properties”), and (2) an approximately 33,981 square feet (“sf”) portion of BART-
owned property (“BART Open Space Property”);
(b) portions of the Oak Avenue Phase 1 Extension (defined below) on (1) an approximately
14,270 sf portion of City-owned property (“City ROW Property”), (2) an approximately 7,296
sf portion of BART-owned property (“BART ROW Property”), and (3) an approximately 14,350
sf portion of Kaiser-owned property (“Kaiser ROW Property”); and
(c) certain access easements necessary to construct and operate the Project as defined in
the Project Approvals (defined below).
The Property includes vacant properties purchased in 2008 by the former South San Francisco
Redevelopment Agency (“RDA”) from the San Francisco Public Utilities Commission by the
former South San Francisco Redevelopment Agency for future redevelopment as mixed-use,
transit-oriented development and open space and have been referred to as the “Former PUC”
properties or sites. Site B is located just north of the proposed Oak Avenue extension, bounded
by the BART easement and the Colma Creek channel to the north. Sites C1 and C2 are located
just north of Site B across the Colma Creek channel, bounded by the BART easement and
Centennial Trail and by Mission Road. The Parties acknowledge that the Project Site is
strategically located, but affected by irregular configuration, existing BART easements and tunnel
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proximity, Colma Creek and ground water, the future Oak Avenue extension, and development of
the City’s Civic Campus Site on Former PUC Site A.
B. WHEREAS, on June 29, 2011, the legislature of the State of California adopted
Assembly Bill x1 26 (“AB 26”), which amended provisions of the Redevelopment Law, which
together with 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”), dissolved the RDA on February 1, 2012.
C. WHEREAS, pursuant to the Dissolution Law, the Successor Agency to the RDA
(“Successor Agency”) prepared a Long Range Property Management Plan (“LRPMP”), which
the former Oversight Board to the Former South San Francisco Redevelopment Agency (“Former
Oversight Board”) approved on May 21, 2015, and the Department of Finance (“DOF”) approved
on October 1, 2015.
D. WHEREAS, the LRPMP established a plan for transferring or selling the former
RDA properties, including those properties identified in the LRPMP to be transferred from the
Successor Agency to the City for redevelopment activities consistent with the Redevelopment Plan
and the LRPMP, including the Property in accordance to the requirements set forth in the LRPMP.
F. WHEREAS, 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. WHEREAS, pursuant to the LRPMP and Dissolution Law, the Successor Agency
transferred its real property assets to the City, including the Property, for future development
subject to the provisions of the Master Agreement for Taxing Entity Compensation by all Taxing
Entities.
H. WHEREAS, in late October 2017, staff sent a request for proposals (“RFP”) to the
selected final developer teams and in July 2018, after a competitive RFP process, the City and
Buyer entered into an Exclusive Negotiation Rights Agreement (“ENRA”) that established a
mutual understanding among the City and the Buyer regarding the potential development of the
Property, as extended by the Parties.
I. WHEREAS, on July 1, 2018, the Former Oversight Board was dissolved and the
San Mateo Countywide Oversight Board (“Countywide Oversight Board”) was established in
accordance with California Health and Safety Code § 34179(j). The Countywide Oversight Board
is responsible for providing direction and oversight to the Successor Agencies as they wind-down
the affairs of their former redevelopment agencies, including the sale terms of the Property in
accordance with the Dissolution Law and LRPMP.
J. WHEREAS, the LRPMP includes development plans for the Property consistent
with this Agreement. As described in Section 2.6 of the LRPMP:
“[f]ollowing the purchase of the former PUC properties, the City embarked
on preparing an area wide plan for the northerly portion of El Camino Real between
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Chestnut Avenue and the SSF BART station. The central aim of the plan is to
develop the area into a vibrant high density mixed-use neighborhood allowing for
improved auto access as well as attractive and accessible bicycle, pedestrian and
open space connections. Located in the geographic heart of South San Francisco,
the former PUC properties were acquired by the [Successor] Agency in order to
redevelop them into new mixed-use, transit-oriented developments that would
create a vibrant Transit Village district within South San Francisco. The properties
are advantageously located at the City’s busiest crossroads at Chestnut Avenue and
El Camino Real. They are located in close proximity to the South San Francisco
Bay Area Rapid Transit (BART) Station and the City’s Transit Village Zoning
District just north of the properties. The properties are also near key public
amenities including Orange Memorial Park, the Centennial Way pedestrian and
bike trail and the Municipal Services Building. The properties are adjacent to the
right-of-way for the underground BART.”
K. WHEREAS, consistent with the approved LRPMP, and subject to the terms of this
Agreement, and contingent upon approval of the Countywide Oversight Board, the Seller wishes
to sell the Property to Buyer at the Purchase Price required in Section 2.2, for the Buyer to obtain
certain land use entitlements from the City, and to require the Buyer to construct the Project
defined in Recital L, below.
L. WHEREAS, the proposed project consists of approximately 800 residential units,
(approximately 13 market rate flex live-work units (“Flex Units”), approximately 158 below
market rate units affordable to 30-80% AMI households (20% of the residential units excluding
the Flex Units) (Affordable Units”) and approximately 629 market rate apartment units (“Market
Rate Units”), improved parks and landscaping, and active ground floor uses throughout the two
sites, including retail and commercial spaces and a childcare center (collectively, the “Project”).
The Flex Units are designated to have flexibility between residential or commercial uses in order
to support a more active commercial and small business enterprise opportunity in the Project. The
Project is anticipated to be approximately 1.1 million sf. Subject to final design, the Project
anticipates a single building on Site B (“Building B”), a building on Site C1 (“Building C1”) and
a building on Site C2 (“Building C2”), as follows:
Building B: Market Rate Units, Flex Units, and an approximately 12,992 square foot
commercial/PDR/retail space that will be open to the public and is envisioned as a food
and beverage themed Market Hall with space for one or more small scale production
businesses (“Market Hall”).
Building C1: Market Rate Units and an approximately 8,307 square foot child care center
open to families in and outside of the Project (“Childcare Center”).
Building C2: Affordable Units designed to attract a high quality affordable housing partner
(anticipated to be BRIDGE Housing Corporation (“BRIDGE”)) (“Affordable Housing
Developer”) and strategically located nearest to transit to qualify for tax-credit and other
affordable housing financing.
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All vertical development structures will be constructed with wood frame construction over
two to three above grade stories of Type IA construction with portions of stair and elevator
penthouses extending 15-feet in height above the roofs. The roofline will range between 35’ and
85’ with the lower elevations fronting Mission Street and in the northern portion of the Site
adjacent to the existing residential buildings as provided in the Project Approvals. Building B and
Building C1 are proposed to have a single basement level containing parking and building service
and additional parking at grade (and on level 2 for Building B), while Building C2 will have its
parking all at grade, including lifts that have parking pits below grade. Off-site landscaped areas
and park programming will be included as part of the Project and have been designed to benefit
both Project residents and the greater region, including the construction of the connection of Oak
Avenue to Antoinette Lane (“Oak Avenue Phase 1 Extension”) and the landscaped road and
parking area connecting Mission Street (not including any future Oak Avenue to El Camino Real
vehicular connection (“Oak Avenue Phase 2 Extension”), as shown on _____________ and
described in the Project Approvals (collectively, “Offsite Improvements”) and payment of
$5,500,000 towards construction costs for construction of the Oak Avenue Phase 2 connection of
Oak Avenue from Antoinette Lane to El Camino Real.
M. WHEREAS, the Project Site is located in the El Camino Real/Chestnut Area Plan
(and designated as El Camino Real Mixed Use North, High Intensity and High Density
Residential) as well as the El Camino Real/Chestnut Area Plan – Residential High (ECR/C – RH)
Zoning District. The City Council certified Environmental Impact Reports 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 El Camino Real/Chestnut Area Plan (“ECR/CAP”) and Community Civic
Campus Plan (the “Civic Campus”) (collectively, the “EIRs). The City Council also adopted a
Statements of Overriding Consideration for the El Camino Real/Chesnut Area EIR (“SOC”) in
accordance with the provisions of CEQA and CEQA Guidelines for the EIRs, which carefully
considered each significant and unavoidable impact identified in the EIRs and found that the
significant environmental impacts are acceptable in light of the ECR/CAP and Civic Campus
economic, legal, social, technological and other benefits. On __________, 2019 by Resolution
No. _______, the City Council approved an Environmental Consistency Analysis for the Project
prepared by the City in accordance with CEQA Guidelines § 15168 that confirmed 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 EIRs
previously certified by City Council, require any new mitigation measures, and is consistent with
the SOCs (“ECA”) and adopted a Mitigation Monitoring and Reporting Plan identifying all
applicable mitigation measures from the EIRs that are applicable to the Project (“MMRP”).
N. WHEREAS, on __________, 2019, after duly noticed public hearing and review
by the Planning Commission including making a finding, pursuant to Government Code Section
65402, that the Project was consistent with the South San Francisco General Plan and the El
Camino Real/Chesnut Area Plan, the City Council also approved the following land use
entitlements: Conditional Use Permit (for conditional uses, incentive bonuses and parking
determination) in accordance with SSF Table 20.270.003 and Section 20.270.004(A) and Area
Plan Table 4-1; Design Review in accordance with SSFMC Chapter 20.480; Vesting Tentative
Tract Map in accordance with SSFMC Chapter 19.50 and Section 19.40.100; Build-To Line
Waiver along Mission Road in accordance with SSFMC Code 20.270.004(C); Active Frontage
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Chief Planner Waiver for 50% Active Use along Mission Road in accordance with SSFMC Code
20.270.005(B)(4); Ground Floor Entrance Chief Planner Alternative Design Approval for
Buildings C1 and C2 facing BART right of way and Colma Creek in accordance with SSFMC
Code 20.270.005(G)(5); State Density Bonus Law for (1) 25% bonus on Parcel B from General
Plan and Area Plan density in accordance with Government Code Section 65915(f)(1) and (2)
development standard waiver from rear yard setback requirements set forth in 20.270.004(D)(1-4)
for Buildings Parcels B, C1 and C2 fronting BART and Colma Creek in accordance with
Government Code Section 65915(e); this Agreement; and a Development Agreement in
accordance with SSFMC Chapter 19.60 (“Development Agreement”) to be executed
concurrently with this Agreement. The entitlements listed in this Recital M are collectively
referred to herein as the “Project Approvals.”
O. WHEREAS, in compliance with Section 6.10 of the Development Agreement
between the City and Buyer, the Buyer has agreed to pay prevailing wages pursuant to Labor Code
Section 1720 et seq. for the Project.
P. WHEREAS, pursuant to Resolution No. _____ dated _______, 2019, the Seller
found that the sale of the Property is consistent with the disposition provisions of the LRPMP and
recommended that the Oversight Board approve this Agreement, and Buyer and Seller
acknowledge the obligation to obtain Countywide Oversight Board approval pursuant to Health
and Safety Code Section 34181(a)(1) pursuant to Section 1.2 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 adequacy
of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows:
1. RECITALS/OB APPROVAL.
1.1 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.
1.2 OB Approval. The Parties acknowledge that the sale of the Property under this
Agreement is fully and expressly contingent on approval of the terms of sale by the Countywide
Oversight Board pursuant to Health and Safety Code Section 34181(a)(1). The date of approval
by the Countywide Oversight Board shall be the “OB Approval Date.” The Parties shall
cooperate in good faith to obtain Countywide Oversight Board approval pursuant to the Schedule
of Performance set forth in Section 5.6. In the event that Countywide Oversight Board approval
is not obtained within one (1) year of the Date of Agreement (“Outside OB Approval Date”),
which date is subject to Force Majeure and may be extended the City Manager in his or her
reasonable discretion, this Agreement shall terminate and have no further force of effect and the
ENRA Deposits shall be refunded to Buyer, along with any accrued interest, along with any unused
portion of the ENRA Reimbursement Deposit (each type of deposit contemplated by the ENRA is
defined in more detail below in Section 3.5).
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2. PURCHASE AND SALE.
2.1 Agreement to Buy and Sell. Subject to the terms and conditions set forth herein,
and expressly contingent of the approval of the Countywide Oversight Board pursuant to Section
1.2 of this Agreement, 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 FIVE MILLION FIVE HUNDRED THOUSAND ($5,500,000) subject
to the applicable ENRA Deposit credits pursuant to Section 3.5, below. The Purchase Price shall
be paid in cash at the Closing.
3. ESCROW.
3.1 Escrow Account. Within ten (10) business days after the OB Approval Date, Seller
will open an interest-bearing escrow account (the “Escrow”) maintained by First American Title
Insurance Company at the address noted in Section 13.8 (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. The Parties understand and agree that the officer at the Escrow
Holder must have experience with handling escrow in San Mateo County. First American Title
Company shall be the Escrow Holder unless unwilling or unable to perform the functions or the
Parties mutually agree otherwise in writing.
3.2 Opening of Escrow. Within ten (10) business days after the OB Approval 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 Buyer’s Deposit. The ENRA Deposits defined in Section 3.4, below, shall be held
in Escrow as the “Buyer’s Deposit”. The Buyer’s Deposit shall become non-refundable except in
the event of a failure to Close based on any of the following Buyer’s Conditions to Closing, in
which case the Buyer shall be entitled to a refund of the Buyer’s Deposit: 5.2(a) [No Default],
5.2(b) [Representations and Warrantees], 5.2(c) [Title Policy], 5.2(d) [Absence of Proceedings],
5.2(e) [No Material Adverse Change], 5.2(g) [Project Approvals], 5.2(h) [Permits], 5.2(i) [No
Leases or Parties in Possession], 5.2(j) [Remediation Plan Approval], 5.2(k) [Compliance with
Dissolution Law], and 5.2(l) [Execution and Delivery of Documents], 5.2(m) [Third Party
Approvals], 5.2(n) [FEMA Approval], and/or 5.2 (o) [Subdivision].
3.4 Application of ENRA Deposits. Pursuant to Section 3(c) and Section 5 of the
ENRA, Buyer has already submitted directly to Seller the following deposits: (i) Fifty Thousand
Dollars ($50,000) to cover the actual costs that the Seller has incurred and will incur in furtherance
of this Agreement (“ENRA Reimbursement Deposit”), (ii) One Hundred and Fifty Thousand
Dollars ($150,000) as an initial deposit, fully creditable against the Purchase Price (“ENRA
Deposit”), and (iii) Sixty Seven Thousand and Eighty Three Dollars ($67,083) to extend the term
of the ENRA to December 31, 2019 (“ENRA Extension Deposit”). Together the ENRA Deposit
and the ENRA Extension Deposit are the “ENRA Deposits.” Seller has deposited the ENRA
Deposits in an interest bearing account and any interest, when received by Seller, will become part
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of the ENRA Deposits. On or before expiration of this Agreement, the Seller may, draw on the
ENRA Reimbursement Deposit to reimburse the Seller’s cost for third-party assistance and staff
time in the negotiations for and preparation of this Agreement. Upon Closing, the Seller will apply
the ENRA Deposits and any unused portion of the ENRA Reimbursement Deposit (if any) to the
Purchase Price.
3.5 Environmental Remediation Regulatory Approval Successor Agency Assistance.
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 City. Seller, at
Buyer’s expense, agrees to cooperate with Buyer to obtain regulatory approval of the necessary
environmental work for the Property (including but not limited to the California Land Reuse and
Revitalization Act) to be suitable for unrestricted residential use consistent with the uses proposed
in the Project Approvals prior to and as a Buyer condition to Closing. Buyer will then manage and
complete the remediation work necessary to make the Property suitable for unrestricted residential
use consistent with the uses proposed in the Project Approvals after Closing. After Closing, Seller
shall have no further obligations with respect to environmental and/or natural hazards remediation
costs.
4. PROPERTY DISCLOSURE AND PRE-CLOSING REQUIREMENTS.
4.1 Condition of Title/Preliminary Title Report. At the time provided on the Schedule
of Performance, the City shall cause the Escrow Holder to issue an updated preliminary title report
for the Property to Buyer (“Preliminary Title Report”). Within thirty (30) calendar days from
receipt, Buyer shall review the Preliminary Title Report and deliver to Seller a written notice
indicating any disapproved exceptions (“Disapproved Exceptions”). Buyer may not disapprove
the following: (a) the lien of any non-delinquent property taxes and assessments (which, if any
exist, shall be prorated by the Escrow Holder at Closing); (b) the Memorandum of Agreement, (c)
the covenants, conditions and restrictions set forth in the Grant Deed, (d) the Development
Agreement (e) the Affordable Housing Agreement with respect to Site C2 only; and (f)
commercially reasonable standard printed exceptions in the Preliminary Report (the
“Pre-Approved Exceptions”). The Pre-Approved Exceptions and those exceptions accepted by
Buyer after review of the Preliminary Title Report as provided herein are hereinafter referred to as
the “Condition of Title.” Subject to the Seller’s covenant in Section 6.1(b) to neither cause nor
voluntarily permit, any new lien, encumbrance or any other matter that changes the condition of
title to the Property, if any exceptions other than the Pre-Approved Exceptions are reported by the
Escrow Holder then any such new exception shall be Disapproved Exceptions unless the new
exceptions (i) are caused by Buyer, or (ii) are consented to or waived in writing by Buyer in its
sole discretion.
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
warrants that as of the Date of Agreement, it has provided to Buyer all reports of potential
hazardous substances located on or beneath the Property that Seller possesses. Seller further agrees
to make all necessary disclosures required by law.
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5. CLOSING, PAYMENT OF PURCHASE PRICE AND POST CLOSING
OBLIGATIONS .
5.1 Closing. The closing (the “Closing” or “Close of Escrow”) will occur for the
Property no later than the date set forth in the Section of Performance (see Section 5.6), unless
such date for Closing is extended by Force Majeure Delay or as provided on in Sections 5.6.1,
5.6.2 or 5.6.3 herein (“Closing Date”). In addition to the extensions of the Closing Date in Section
5.6.1, 5.6.2 and 5.6.3, the Closing Date shall be extended where a Party’s Conditions to Closing
under Section 5.2 (Buyer) and 5.3 (Seller) have not been satisfied as a result of a Force Majeure
Event.
5.2 Buyer’s Conditions to Closing. Buyer’s obligation to purchase the Property is
subject to the satisfaction of each and all of the following conditions precedent (“Buyer
Conditions Precedent”) or Buyer’s written waiver thereof (each in Buyer’s sole discretion) on or
before the Closing Date:
(a) No Default. Seller is not in default and has performed all obligations
to be performed by Seller pursuant to this Agreement, and the City is not in default under the
Development Agreement.
(b) Representations and Warranties. Seller’s representations and
warranties herein are true and correct in all material respects as of the Closing Date.
(c) Title Policy. The Escrow Holder shall, upon payment of Escrow
Holder’s regularly scheduled premium, be irrevocably committed to issue an ALTA Extended
Title Policy to Buyer upon recordation of the Grant Deed and effective as of the Closing Date,
insuring title to Buyer in the full amount of the Purchase Price and subject only to the Pre-
Approved Exceptions or the Condition of Title.
(d) Absence of Proceedings. There shall be an absence of any
condemnation, environmental or other pending governmental or any type of administrative or legal
proceedings with respect to the Property or this Agreement which would materially and adversely
affect Buyer’s intended uses of the Property or the value of the Property.
(e) No Material Adverse Change. There shall not have occurred
between the Date of Agreement and the Closing a material adverse change to the physical
condition of the Property that renders all or a material portion of the Property unusable for the
Buyer’s intended use for the Project.
(f) Financing Commitments. Buyer shall have financing commitments
sufficient for the acquisition of the Property and construction of the Project and Buyer’s
construction loan, if any, shall have closed or shall be ready to close concurrently with the Closing.
(g) Project Approvals. The Project Approvals shall be final and non-
appealable, and if any appeals, legal challenges, requests for rehearing, or referenda have been
filed or instituted, such appeals, legal challenges, requests for rehearing, or referenda shall have
been fully and finally resolved in a manner acceptable to Buyer in its sole and absolute discretion
and such that no further appeals, legal challenges, requests for rehearing, or referenda are possible.
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(h) Permits. Subject to payment of the applicable fees, the City shall be
ready and willing to issue the ministerial demolition, grading, foundation permit and building
permit(s) necessary for the Buyer to meet its obligations in the Schedule of Performance pursuant
to Section 5.6.
(i) No Leases or Parties in Possession. Seller shall have demonstrated
the ability to deliver fee title to the Property to Buyer free and clear of any tenants, lessees,
licensees or any third party occupants or parties in possession.
(j) Remediation Plan Approval. Buyer shall, in the Buyer’s reasonable
business judgment, have obtained regulatory approval of any necessary environmental work for
the Property (including but not limited to the California Land Reuse and Revitalization Act) to be
suitable for residential use consistent with the uses proposed in the Project Approvals and that such
regulatory approval would not cause or result in a material adverse delay in the time to commence
or construct the Project or a material adverse impact to the Project or the use of the Project.
(k) Compliance with Dissolution Law. Seller shall have complied with
all requirements and obtained any and all approvals required under the Dissolution Law with
respect to Closing.
(l) Execution and Delivery of Documents by Seller. Seller shall have
executed and acknowledged the Grant Deed and Memorandum of Agreement, and Seller shall
have executed (and, where appropriate, acknowledged) and delivered into escrow all other
documents that Seller is required to deliver into escrow pursuant to Section 5.5.1(a).
(m) Third Party Approvals. The Seller has obtained all third party real
property approvals and real property rights necessary to construct the Oak Avenue Phase 1
Extension and Off-Site Improvements as defined in the Project Approvals (“Off-Site Real
Property Interests”); provided, however, Buyer shall obtain any required permits or right of entry
for the construction of the Oak Avenue Phase 1 Extension from BART and/or Kaiser, or other
relevant parties, including any permits necessary to perform construction work on top of the
underground BART tunnel consistent with such Off-Site Real Property Interests.
(n) FEMA Approval. FEMA shall have approved removal of the
Property from the 100 year floodplain such that the Project Approvals do not require any material
modification or amendment.
(o) Subdivision. The City shall have approved any necessary legal
subdivision of the Property necessary to transfer the Property and implement the Project as
contemplated in the Project Approvals, and such subdivision approval shall have been recorded
(including, if any applicable exemptions).
5.3 Seller’s Conditions to Closing. Seller’s obligation to sell the Property is subject to
the satisfaction of each and all of the following conditions precedent (“Seller Conditions
Precedent”) or Seller’s written waiver thereof (each in Seller’s sole discretion) on or before the
Closing Date:
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(a) No Default by Buyer. Buyer is not in default and has performed all
obligations to be performed by Buyer pursuant to this Agreement.
(b) Development Agreement. The Development Agreement is executed
by Buyer, is effective, is not subject to referendum, and the Buyer is not in default under the
Development Agreement.
(c) Representations and Warranties. Buyer’s representations and
warranties set forth herein are true and correct in all material respects as of the Closing Date.
(d) Buyer’s Financing Commitments. Buyer has provided Seller written
confirmation, acceptable to Seller, which approval shall not be unreasonably withheld, that Buyer
has obtained financing commitments for the acquisition and construction financing for the
acquisition of the Property and the construction of the Project.
(e) Permits. The Buyer shall have submitted applications to the City and
subject to payment of the applicable fees, the City shall be ready and willing to issue the ministerial
demolition, grading and foundation permit(s) necessary for the Buyer to Commence of
Construction as set forth in the Performance Schedule set forth in Section 5.6.
(f) Compliance with Dissolution Law. Seller shall have complied with
all requirements and obtained any and all approvals required under the Dissolution Law with
respect to Closing.
(g) Execution and Delivery of Documents by Buyer. Buyer shall have
executed and acknowledged the Grant Deed and Memorandum of Agreement, and Buyer shall
have executed (and, where appropriate, acknowledged) and delivered into escrow all other
documents that Buyer is required to deliver into escrow pursuant to Section 5.5.1(b).
(h) Delivery of Funds. Buyer shall have delivered through escrow the
Purchase Price and such other funds, including escrow costs, recording fees and other closing costs
as are necessary to comply with Buyer’s obligations under this Agreement.
5.4 Conveyance of Title. Seller will deliver marketable fee simple title to Buyer at the
Closing, subject only to the Condition of Title pursuant to Section 4.1. 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 Closing.
5.5.1 Delivery of Documents and Closing Funds. At or prior to Closing, Seller
and Buyer shall each deposit such other instruments as are reasonably required by the Escrow
Holder or otherwise required to close the escrow and consummate the conveyance of the Property
in accordance with the terms hereof, including but not limited to the following:
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(a) Deliveries by Seller. At or before Closing, Seller shall deposit the
following into escrow:
A. one (1) original executed and acknowledged Grant Deed
substantially in the form attached hereto as Exhibit B (“Grant Deed”);
B. one (1) original executed and acknowledged Memorandum
of Agreement, substantially in the form attached hereto as Exhibit D (“Memorandum of
Agreement”);
C. one (1) duly executed non-foreign certification for the
Property in accordance with the requirements of Section 1445 of the Internal Revenue Code of
1986, as amended; and
D. one (1) duly executed California Form 593-W Certificate for
the Property or comparable non-foreign person affidavit to satisfy the requirements of California
Revenue and Taxation Code Section 18805(b) and 26131.
(b) Deliveries by Buyer. At or prior to Closing, Buyer shall deposit the
following into escrow:
A. immediately available funds in the amount, which together
with the Buyer’s Deposit plus interest thereon, if any, is equal to an amount necessary to
consummate the Closing, including the Purchase Price, escrow and Title Policy costs set forth in
Section 5.5.5;
B. one (1) original executed and acknowledged Grant Deed;
C. one (1) original executed and acknowledged Memorandum
of Agreement; and
D. one (1) original executed Preliminary Change of Ownership
Report for the Property.
E. one (1) fully executed Affordable Housing Agreement as
required and defined in the Development Agreement.
5.5.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Seller and Buyer with respect to the conveyance of the Property to Buyer, and the
Escrow Agent to whom these instructions are delivered is hereby empowered to act under this
Agreement. The parties shall use reasonable good faith efforts to close the escrow for the
conveyance of the Property in the shortest possible time. Insurance policies for fire or casualty are
not to be transferred, and each Party will cancel its own policies, if any, as of the Closing. All
funds received in the escrow shall be deposited in interest-bearing accounts for the benefit of the
depositing Party in any state or national bank doing business in the State of California. All
disbursements shall be made by check or wire transfer from such accounts. If, in the opinion of
either Party, it is necessary or convenient in order to accomplish the Closing, such Party may
provide supplemental escrow instructions; provided that if there is any inconsistency between this
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Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall
control. The Closing shall take place as set forth in Section 5.5.4 below. Escrow Agent is instructed
to release Seller’s and Buyer’s escrow closing statements to the respective parties.
5.5.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Pay and charge Buyer for the premium of the Title Policy, including
any endorsements requested by Buyer.
(b) Pay and charge Buyer for escrow fees, charges, and costs as
provided in Section 5.5.5.
(c) Disburse to Seller the Purchase Price, less Seller’s share of any fees,
costs and expenses allocated to Seller herein, and record the Grant Deed when both the Buyer
Conditions Precedent and Seller Conditions Precedent have been fulfilled or waived in writing by
Buyer and Seller, as applicable. Immediately following recordation of the Grant Deed, Escrow
Agent shall record the Memorandum of Agreement, Development Agreement, Affordable
Housing Agreement and all other recordable documents delivered into escrow for the Closing.
(d) Do such other actions as necessary, including obtaining and issuing
the Title Policy, to fulfill its obligations under this Agreement.
(e) Direct Seller and Buyer to execute and deliver any instrument,
affidavit, and statement, and to perform any act, reasonably necessary to comply with the
provisions of FIRPTA, if applicable, and any similar state act and regulations promulgated
thereunder.
(f) Prepare and file with all appropriate governmental or taxing
authorities uniform settlement statements, closing statements, tax withholding forms including IRS
1099-S forms, and be responsible for withholding taxes, if any such forms are provided for or
required by law.
5.5.4 Closing. The escrow for conveyance of the Property shall close (“Close of
Escrow”) within thirty (30) days after the satisfaction, or waiver by the appropriate Party, of all of
the Buyer Conditions Precedent and all of the Seller Conditions Precedent, but not later than the
“Outside Date” as defined in the Schedule of Performance. For purposes of this Agreement, the
“Closing” shall mean the time and day the Grant Deed is recorded with the San Mateo County
recorder.
5.5.5 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.
5.5.6 Pro-Rations. At the Close of Escrow, the Escrow Agent shall prorate the
property taxes and assessments 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
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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. Seller does not pay ad valorem taxes.
5.6 Schedule of Performance. Subject to Force Majeure Delay as set forth in Section
7.4 and the extensions to Buyer’s obligations provided in Sections 5.6.1, 5.6.2, and 5.6.3, as
applicable, the Parties shall complete the following in the time set forth on Exhibit C (“Schedule
of Performance”). Notwithstanding the foregoing, if the Seller and Buyer mutually agree to a
phasing plan for the construction of the Project, which includes distinct timeframes for the
Commencement of Construction or the Substantial Completion of each defined phase that conflict
with those set forth in the Schedule of Performance and that move forward the deadlines set forth
in Schedule of Performance, the provisions of such phasing plan shall control. These obligations
shall survive Closing, as applicable.
5.6.1 Seller’s Extension. The deadlines set forth in Section 5.6 shall each be
subject to a ninety (90) day extension, provided (1) that the Buyer submits a written request for an
extension prior to the deadline which shall include the rationale for the request and summary of
the actions Buyer has taken to satisfy the obligation prior to the deadline and (2) the extension
request is approved by the City Manager, which such approval shall not be unreasonably withheld.
If granted, such 90-day extension shall extend all following dates in the schedule by 90-days,
unless the City Manager approval expressly states otherwise.
5.6.2 Buyer’s Extension. At the Buyer’s sole discretion, the deadlines set forth in
Section 5.6 shall be subject to a maximum of four extensions of 30 days (no more than 120 days
total) upon written notice to Seller and Buyer’s payment to Seller of $25,000 for each such 30-day
extension. Such extensions shall extend each following dates in the schedule.
5.6.3 City Review. The Developer’s deadlines set forth on the Schedule of
Performance are each contingent upon the City reviewing and providing comments or approving
plans and permit applications submitted by Buyer within twenty one (21) days of submission of
complete plans and/or applications. This 21 day period shall commence anew each time that Buyer
submits revised plans in response to City comments on the prior version of the plans. Buyer shall
be solely responsible for submitting complete plans that satisfy all federal, state and local code and
City requirements. Buyer shall be responsible for payment of all required City building permit fees
including costs for City to retain contract plan check services. In the event that City review exceeds
21 days, the deadlines set forth in Section 5.6 shall all be extended one day for each day the City
review exceeds 21 days.
5.7 Compliance with Development Agreement. Buyer and City shall each
execute, record and comply with all obligations under the Development Agreement, as applicable
(including but not limited to those obligations of Buyer under Development Agreement) in
substantially the form set forth on Exhibit C.
5.8 Maintenance of Property. Prior to Close of Escrow, the City, acting on
behalf of the Successor Agency, shall be solely responsible for the maintenance of the Property.
After Close of Escrow and through completion of construction for the entire Project, Buyer shall
use commercially reasonable efforts to maintain any portion of the Property that has not been
constructed and that is not in active construction in either approximately the same condition as that
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at the time of Close of Escrow (for portions of the property where grading or construction has not
occurred) or in its then current construction status with open areas seeded or otherwise managed
to minimize erosion and dust from the Property and existing vegetation trimmed to minimize fire
hazards. Buyer shall also erect and maintain a temporary fence around the Project construction
site, with the type of fence subject to the approval by the Chief Planner, which approval shall not
be unreasonably withheld, delayed or conditioned.
5.9 Allocation of Net Proceeds to Taxing Entities. Upon disbursal to Seller of the
Purchase Price, Seller will remit the Net Unrestricted Proceeds (defined below) to the applicable
Taxing Entities in accordance with the Amended and Restated Master Agreement for Taxing
Entity Compensation. This obligation survives Closing and is the sole and exclusive obligation of
the Seller.
For purposes of this Agreement and the Amended and Restated Master Agreement for
Taxing Entity Compensation, “Net Unrestricted Proceeds” means the sale proceeds received by
the Seller for the sale of the Property, less: (i) costs incurred by the Seller for expenses incurred in
connection with the management and disposition of the Property, including reasonable and actual
costs incurred for property management, maintenance, insurance, marketing, appraisals, brokers'
fees, escrow, closing costs, survey, attorneys' and consultants' fees, and other reasonable costs
incurred, including reasonable compensation for Seller staff performing functions associated with
the management, maintenance and disposition of the Property provided that the Seller shall first
apply any revenue generated from license, permit, lease, right-of-entry, or similar agreements
received by the Seller to offset the management, insurance and maintenance costs of the Property
(collectively, “Permissible Expenditures”), and (ii) any proceeds of sale that are restricted by
virtue of the source of funds (e.g. grant funds or the proceeds of bonds) that were used for the
original acquisition of the Property. Upon sale of Property, along with each Taxing Entity's pro-
rata share of the Net Unrestricted Proceeds, the Seller shall deliver to the Taxing Entities an
accounting of all such costs, expenses and restricted proceeds related to that particular parcel
(“Sale Accounting”).
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 Effective 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 determines it does not wish to proceed, then the terms of Section 7.3 will
apply.
(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, subject to
Section 1.2. This Agreement has been duly executed by Seller, and upon delivery to and execution
by Buyer is a valid and binding agreement of Seller.
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(b) Encumbrances. Other than the exceptions set forth in the
Preliminary Title Report, Seller has 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 shall 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) No Right of Possession. There are no agreements, including any
leases, licenses and occupancy agreements, affecting the Property. There are no agreements which
will be binding on the Buyer or the Property after the Close of Escrow. Other than the utility
easements set forth on the Preliminary Title Report, no person or entity other than Seller has the
right to use, occupy, or possess the Property or any portion thereof. Seller will not enter into any
lease or other agreement affecting the Property or any portion thereof without the written consent
of Buyer.
(d) No Conflict. Seller’s execution, delivery and performance of its
obligations under this Agreement will not constitute a default or a breach under any contract,
agreement or order to which Seller is a party or by which Seller is bound.
(e) No Litigation or Other Proceeding. To Seller’s current actual
knowledge, no litigation or other proceeding (whether administrative or otherwise) is outstanding
or has been threatened which would prevent, hinder or delay the ability of Seller to perform its
obligations under this Agreement, or that would adversely affect the Property or Buyer’s intended
use of the Property for the Project.
(f) No Seller Bankruptcy. Seller is not the subject of any bankruptcy
proceeding, and no general assignment or general arrangement for the benefit of creditors or the
appointment of a trustee or receiver to take possession of all or substantially all of Seller’s assets
has been made.
(g) Condition of Property. Seller has no notice of any pending or
threatened action or proceeding arising out of the condition of the Property or any alleged violation
of any Environmental Laws. Except as otherwise disclosed by City and provided in Section 3.6,
to Seller’s actual current knowledge, the Property is in compliance with all Environmental Laws.
The Seller will not make or allow any material adverse change to the condition of the Property.
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 not be deemed merged into the deed upon closing and shall survive the Close of Escrow until
the satisfaction of the Buyer’s Post-Closing Obligations under Section 5.6 and shall survive any
earlier expiration or termination of this Agreement for a period of twelve (12) months.
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
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represents, warrants and covenants to Seller that the statements below in this Section 6.2 are each
true as of the Date of Agreement, 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. If Seller
determines it does not wish to proceed, then the terms of Section 7.3 will apply.
(a) Authority. Buyer is a limited liability company. 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) No Bankruptcy. 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 all covenants of Buyer contained in this Agreement are conditions precedent to Seller’s
obligation to proceed with the Closing hereunder. The foregoing representations and warranties
shall survive the Closing and continue until satisfaction of the Buyer’s Post-Closing Obligations
under Section 5.6.
7. DEFAULT, REMEDIES, TERMINATION.
7.1 Default Remedies - General. Failure by either Party to perform any action or
covenant required by this Agreement within thirty (30) days following receipt of written Notice
from the other Party specifying the failure shall constitute a “Default” under this Agreement;
provided, however, that if the failure to perform cannot be reasonably cured within such thirty (30)
day period, a Party shall be allowed additional time as is reasonably necessary to cure the failure
so long as such Party commences to cure the failure within the thirty (30) day period and thereafter
diligently prosecutes the cure to completion. Subject to the limitations of Section 7.2 below, any
default by the Buyer or Seller under the Development Agreement which is not cured following
notice and expiration of any applicable cure periods thereunder shall also constitute a Default under
this Agreement, and upon occurrence of such Default and without any right to further notice or
additional cure period, the non-defaulting party shall have all remedies available to it under this
Agreement, including the right to terminate this Agreement as set forth in Section 7.3 below.
7.2 Legal Actions.
7.2.1 Institution of Legal Actions and Remedies. Upon the occurrence of a
Default under this Agreement, the non-defaulting Party shall have the right to institute any action
at law or in equity to cure, correct, prevent or remedy such Default, subject to the express
limitations on remedies provided in this Section 7.2.1. Neither Party shall have the right to recover
any punitive, consequential, or special damages. Such legal actions must be instituted in the
Superior Court of the County of San Mateo, State of California, or in the Federal District Court
for the Northern District of the State of California.
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7.2.1.1 Default by Buyer; Seller’s Remedies. The Seller’s remedies shall be
expressly limited as follows:
a. Pre-Closing. Upon the occurrence of a Default by Buyer that
occurs before Closing the Seller’s remedies shall be limited to (i) liquidated damages pursuant to
Section 7.2.2 and (ii) termination of this Agreement pursuant to Section 7.3.
b. Post-Closing. Upon the occurrence of a Default by Buyer that
occurs after Closing, the Seller’s remedies shall be limited to obtaining specific performance,
declaratory or injunctive relief, or terminating this Agreement.
7.2.1.2 Default by Seller; Buyer’s Remedies. Upon the occurrence of a
Default by Seller under this Agreement, Buyer’s remedies shall be limited to obtaining specific
performance, declaratory or injunctive relief, or terminating this Agreement.
7.2.2 Liquidated Damages. SUBJECT TO NOTICE AND EXPIRATION OF
APPLICABLE CURE PERIODS AND ANY PERMITTED EXTENSIONS OF TIME AS
PROVIDED IN THIS AGREEMENT, IF IN THE EVENT OF A BUYER DEFAULT AS SET
FORTH IN 7.2.1.1(a), THE SELLER WILL SUFFER DAMAGES AND THAT IT IS
IMPRACTICABLE AND INFEASIBLE TO FIX THE ACTUAL AMOUNT OF SUCH
DAMAGES. THEREFORE, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON
THE DATE OF THIS AGREEMENT, IN THE EVENT OF A CLOSING DEFAULT, BUYER,
WITHIN THIRTY (30) DAYS FOLLOWING SELLER’S WRITTEN DEMAND THEREFOR,
SHALL TURN OVER ALL REPORTS AND PLANS IN THE BUYER’S ACTUAL OR
CONSTRUCTIVE POSSESSION THAT HAVE BEEN PREPARED BY AND FOR BUYER
RELATED TO THE PROJECT AND THE PROPERTY (WITH THE EXCEPTION OF
BUYER’S INTELLECTUAL PROPERTY, CONFIDENTIAL FINANCIAL INFORMATION,
AND ANY INFORMATION SUBJECT TO LEGAL PRIVILEGE) (THE “MATERIALS.”)
THE BUYER’S ENRA DEPOSITS, AND MATERIALS SHALL SERVE AS LIQUIDATED
DAMAGES TO THE SELLER FOR A DEFAULT SPECIFIED IN SECTION 7.2.1.1(a). THE
VALUE OF THE BUYER’S ENRA DEPOSITS AND MATERIALS CONSTITUTES A
REASONABLE ESTIMATE OF THE DAMAGES THAT THE SELLER WOULD INCUR IN
THE EVENT OF A CLOSING DEFAULT. RETENTION OF THE BUYER’S ENRA DEPOSITS
AND MATERIALS SHALL BE THE SELLER’S SOLE AND EXCLUSIVE REMEDY
AGAINST BUYER IN THE EVENT OF A DEFAULT A DEFAULT SPECIFIED IN SECTION
7.2.1.1(a), AND THE SELLER WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS
OR REMEDIES AGAINST BUYER, INCLUDING WITHOUT LIMITATION, SPECIFIC
PERFORMANCE. THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN IS NOT
INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS
3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO THE SELLER PURSUANT TO SECTIONS 1671, 1676 AND
1677 OF THE CALIFORNIA CIVIL CODE. SELLER WAIVES THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 3389. BY PLACING ITS INITIALS BELOW, BUYER
AND SELLER SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS
MADE ABOVE, THE REASONABLENESS OF THE AMOUNT OF LIQUIDATED
DAMAGES AGREED UPON, AND THE FACT THAT EACH PARTY WAS REPRESENTED
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BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE
CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS: _________ ______________
SELLER BUYER
7.2.3 Acceptance of Service of Process. In the event that any legal action is
commenced by Buyer against Seller, service of process on Seller shall be made by personal service
upon the City Manager at the address provided in Section 13.8 or in such other manner as may be
provided by law. In the event that any legal action is commenced by Seller against Buyer, service
of process on Buyer shall be made by personal service upon Eric Tao,, Buyer’s registered agent
for service of process in California, at 500 Sansome Street, Suite 750, San Francisco, CA 94111
or in such other manner as may be provided by law.
7.3 Termination. In addition to termination upon satisfaction of all material terms of
this Agreement as evidenced by issuance of a Certificates of Completion as to each portion of the
Project, this Agreement may be terminated by the Party for whom a condition is intended to
benefit: (i) if there is an uncured Default, after notice from the Party not in default and expiration
of all cure periods, (ii) if there is a failure of an express Buyer Condition Precedent or Seller
Condition Precedent (which is not waived by the Party whom the condition benefits) by timely
notice from the Party whom the condition benefits, (iii) a representation or warranty of a Party
becomes untrue prior to Closing under Section 6.1 or 6.2 (which is not waived by the Party whom
the condition benefits), (iv) upon mutual written consent of the Parties, each in its sole discretion.
Upon termination, the Parties will also cooperate to record a notice of termination.
7.4 Force Majeure Delay. All obligations in this Agreement shall not be deemed to be
in Default, all performance and other dates specified in those sections shall be extended, where
delays are due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods; earthquakes;
fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight
embargoes; litigation and arbitration, including court delays; legal challenges to this Agreement,
legal challenges to the Project Approvals, or legal challenges to any other approval required from
any public agency other than the City for the Project, or any initiatives or referenda regarding the
same; environmental conditions that have not been previously disclosed or discovered or that could
not have been discovered with reasonable diligence that delays the construction or development
of the Property or any portion thereof; unusually severe weather but only to the extent that such
weather or its effects (including, without limitation, dry out time) result in delays that cumulatively
exceed thirty (30) days for every winter season occurring after commencement of demolition,
grading, and/or construction of the Project; acts or omissions of the other Party; or acts or failures
to act of any public or governmental agency or entity, including but not limited to delays in the
Countywide Oversight Board process (except that acts or failures to act of Seller shall not excuse
performance by Seller); moratorium; any delay caused by required coordination with the City’s
Civic Campus Project or the City obtaining the Off-Site Real Property Interests, so long as the
Buyer is acting diligently and in good faith; or a Severe Economic Recession (each a “Force
Majeure Delay”). An extension of time for any such cause shall be for the period of the enforced
delay and shall commence to run from the time of the commencement of the cause, if notice by
the Party claiming such extension is sent to the other Party within sixty (60) days of the
commencement of the cause. If notice is sent after such sixty (60) day period, then the extension
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shall commence to run no sooner than sixty (60) days prior to the giving of such notice. Buyer’s
inability or failure to obtain financing or otherwise timely satisfy shall not be deemed to be a cause
outside the reasonable control of the Buyer and shall not be the basis for an excused delay unless
such inability, failure or delay is a direct result of a Severe Economic Recession. “Severe
Economic Recession” means a decline in the monetary value of all finished goods and services
produced in the United States, as measured by initial quarterly estimates of United States Gross
Domestic Product (“GDP”) published by the United States Department of Commerce Bureau of
Economic Analysis (and not subsequent monthly revisions), lasting more than four (4) consecutive
calendar quarters. Any quarter of flat or positive GDP growth shall end the period of such Severe
Economic Recession.
7.5 City Option to Repurchase, Reenter and Repossess Parcels B and C1.
7.5.1 As to Parcels B and C1, subject to notice and opportunity to cure under Section 7.1 and
pplicable Force Majeure Delay under Section Error! Reference source not found.7.4, City
shall have the additional right, at its sole option, to repurchase, reenter and take possession of
either Parcel B1 or Parcel C if after conveyance of title to the Property and prior to
Commencement of Construction on Parcels C1 and B, as part of Phases I or II respectively, as
set for in the Schedule of Performance, Developer shall fail to Commence Construction on
Parcels C1 or B as part of either Phase 1 or Phase II of the Project prior to the date and time
required in Schedule of Performance.
7.5.2 Such right to repurchase, reenter and repossess, to the extent provided in this Agreement,
shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit:
(a) Any mortgage, deed of trust or other security instrument permitted
by this Agreement; or
(b) Any rights or interests provided in this Agreement for the
protection of the holder of such mortgages, deeds of trust or other security instruments.
7.5.3 To exercise its right to repurchase, reenter and take possession with respect to either
Parcel C1 or B, City shall pay to Developer in cash an amount equal to:
(a) The Purchase Price paid by Developer for either of Parcel C1 or B,
whichever parcel is repurchased.
(b) The total amount of any mortgages, deeds of trust or other liens
encumbering the specific parcel at the time of the repurchase, reentry and
repossession.
In order to exercise such purchase option, City shall give Developer Notice of such
exercise and Developer shall, within sixty (60) days after Developer’s receipt of such Notice,
provide City with a detailed accounting of all of Developer’s costs incurred as provided above.
If City elects, in its sole discretion to repurchase either or both parcels, City, within thirty (30)
days thereafter, shall pay to Developer in cash all sums owing pursuant to this Section 7.5, if
any, and Developer shall thereupon execute and deliver to City a grant deed transferring to City
all of Developer’s interest in the Property (or applicable portion thereof).
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City’s rights under this Section 7.5 shall terminate as to each Parcel C1 or B upon Commencement
of Construction by Developer on each of Parcels C1 and B respectively.
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 and Seller shall indemnify, hold harmless and defend the other Party from any
and all claims, actions and liability for any breach of the preceding sentence, and any commission,
finder’s fee, or similar charges arising out the other Party’s conduct.
9. ASSIGNMENT. Until issuance of Certificate of Completion for the Project on the
Property (or applicable portion thereof), neither Seller nor Buyer may assign its rights or delegate
its duties under this Agreement, except for Buyer Permitted Transfers as defined below, without
(i) the express written consent of the other Party, which consent will not be unreasonably withheld
or delayed and (ii) a concurrent assignment of the Development Agreement in accordance with
Section 8.1 of the Development Agreement. If Buyer proposes an assignment in relation to the
entire Property or Parcels B and/or C1 separately (each a “Property Transfer”), Buyer will seek
Seller’s prior written consent to such Property Transfer, which consent will not be unreasonably
withheld or delayed. Seller may refuse to give consent to a proposed Property Transfer only if, in
light of the proposed transferee’s reputation and financial resources, such transferee would not, in
Seller’s reasonable opinion, be able to perform the obligations proposed to be assumed by such
transferee, and such determinations will be made by the City Manager and will be appealable by
Buyer to the City Council. Prior to any Property Transfer, the Buyer and assignee shall enter into
an assignment and assumption agreement that clearly assigns the rights and obligations between
the parties, and subject to prior approval, which shall not be unreasonably be withheld or delayed,
of the City Manager and the City Attorney. Notwithstanding the preceding language, any proposed
assignment of Site C2 separately (“Affordable Property Transfer”) to a party other than
BRIDGE or an Affiliate of BRIDGE, including the form of assignment and assumption agreement
and Affordable Housing Covenant, shall require the prior consent of the City Council.
Notwithstanding any other provision of this Agreement to the contrary, each of following transfers
are permitted and shall not require Seller consent under this Section 9 (each a “Buyer Permitted
Transfer”):
(a) Any transfer for financing purposes to secure the funds necessary for
construction and/or permanent financing of the Project, including but not limited to any tax credit
financing for the Affordable Units;
(b) An assignment of this Agreement to an Affiliate of Buyer (except
that Affordable Property Transfer to an Affiliate of Buyer shall not be a Buyer Permitted Transfer);
(c) An Affordable Property Transfer to BRIDGE, or an Affiliate of
BRIDGE. For the purposes of this section, an "Affiliate of BRIDGE" means an entity that is
directly or indirectly controlling, controlled by, or under common control of BRIDGE Housing
Corporation, including but not limited to a tax credit partnership in which BRIDGE or an Affiliate
of BRIDGE is the managing general partner. For any Affordable Property Transfer to BRIDGE
or an Affiliate of BRIDGE, the Buyer and assignee shall enter into an assignment and assumption
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agreement in substantially the form set forth in Exhibit E, with the final form of the assignment
and assumption agreement subject to approval by the City Manager;
(d) The sale or lease of the Child Care Center to a Childcare Operator, as
defined in the Development Agreement;
(e) Transfers of common area to a property owners association;
(f) Dedications and grants of easements and rights of way required in
accordance with the Project Approvals; or
(g) Any leasing activity.
For the purposes of this Section 9, “Affiliate of Buyer” means an entity or person that is directly
or indirectly controlling, controlled by, or under common control with Buyer. For the purposes of
this definition, “control” means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of an entity or a person, whether through the
ownership of voting securities, by contract, or otherwise, and the terms “controlling” and
“controlled” have the meanings correlative to the foregoing. 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 unless a release is provided in the form of
assignment and assumption agreement approved by the reviewing Party.
10. ENVIRONMENTAL INDEMNITY. Effective upon Close of Escrow, and subject to
Section 3.6, to the fullest extent allowed by law, Buyer agrees to unconditionally and fully
indemnify, protect, defend (with counsel satisfactory to Buyer in Buyer’s sole discretion), and hold
Seller and the City, and their respective elected and appointed officers, officials, employees, and
agents, (“Seller Indemnified Parties”) 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 “Claims”) 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 to the extent emanating from the Property, 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 that are existing as of the Close of Escrow or are caused to exist during the period
of ownership of the Property by Buyer, except those Costs that arise solely as a result of actions
by Seller, the City (including their consultants and contractors) or Seller Indemnified Parties. Upon
receipt of any Claim, the Seller Indemnified Parties shall promptly notify and tender such Claim
to the Buyer. Any failure to timely tender such Claim to Buyer to allow Buyer to defend such
Claim shall be deemed a waiver of such Seller Indemnified Party’s rights under this Section 10.
Buyer shall resolve such Claim in its sole and absolute discretion so long as the Seller Indemnified
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Party is not subject to any costs or liability. 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. 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) to the extent emanating from the
Property 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 activities on the
Property prior to Close of Escrow. The provisions of this Section 10 shall survive the termination
of this Agreement and the Close of Escrow. If Buyer purchases an environmental pollution legal
liability policy for the Property, the policy shall include the City and Agency as additional insureds.
11. RELEASE BY BUYER. Effective upon the Close of Escrow, Buyer waives, releases,
remises, acquits and forever discharges Seller and the City, and its officers, directors, board
members, 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 not apply to the
City for any portion of the Property that is, after Closing, dedicated for public use (e.g. public
sidewalks) and is under the direct management and maintenance of the City. This Section 11 shall
survive the termination of this Agreement and the Close of Escrow.
BUYER ACKNOWLEDGES THAT BUYER IS FAMILIAR WITH SECTION 1542 OF THE CALIFORNIA
CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR.
BY INITIALING BELOW, BUYER EXPRESSLY WAIVES 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)
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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 Amendments and
Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49
U.S.C. § 5101 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 et seq.), the Clean Air Act (42 U.S.C.
§ 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act
(33 U.S.C. § 2701 et 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, et seq.), the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 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’ Fees. 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
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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
Section 5.6, 6.1, Section 6.2, Section 10, and Section 11 of this Agreement shall survive Close of
Escrow as expressly provided in each such section.
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 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. In the event that the Countywide Oversight Board approves a
Purchase Price different from the Purchase Price set forth in Section 2.2 and the Buyer, in its sole
and absolute discretion, agrees to the revised Purchase Price, the City Manager may, on behalf of
the City and Successor Agency, approve and execute an amendment to this Agreement to
incorporate the Purchase Price approved by the San Mateo Countywide Oversight Board.
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:
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If to Seller, to: City of South San Francisco
400 Grand Avenue
Attn: City Manager
South San Francisco, CA 94080
Phone: (650) 877-8500
Fax: (650) 829-6609
With a Copy to: Meyers, Nave, Riback, Silver & Wilson
555 12th Street, Suite 1500
Oakland, CA 94607
Attn: Sky Woodruff, City Attorney
Phone: (510) 808-2000
Fax: (510) 444-1108
If to Buyer, to: SSF PUC Housing Partners, LLC
Attn: Eric Tao
c/o L37 Partners
500 Sansome, Ste 750
San Francisco, CA 94111
Phone: (415) 394-9016
Email: [email protected]
With Copies to: Holland & Knight
50 California Street, #2500
San Francisco, CA 94111
Attn: Tamsen Plume
Phone: (415) 743-9461
Email: [email protected]
Brookfield Residential
500 La Gonda Way, Suite 100
Danville, CA 94526
Attention: Josh Roden
Phone: (925) 743-8000
Email: [email protected]
If to Escrow Holder: First American Title Insurance Company
333 W Santa Clara St Ste 220,
San Jose, CA 95113
Attn: Linda Tugade, Senior Escrow Officer
Tel: (408) 579-8340
Fax: (714) 913-6757
Email: [email protected]
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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.
13.10 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 Cooperation and Further Assurances. Each Party agrees to cooperate with the other
in this transaction and, in that regard, 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 Signatures/Counterparts. 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 Delivery 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 parties 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.
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13.17 Access to Property. Prior to the Closing, Seller shall cooperate to enable
representatives of Buyer to obtain the right of access to all portions of the Property for the purposes
of implementing this Agreement. Buyer agrees to provide written notice to Seller at least twenty
four (24) hours prior to undertaking any studies or work upon the Property. Buyer shall indemnify,
defend, protect and hold Seller and Seller Parties harmless from any Claims arising out of the acts,
omissions, negligence or willful misconduct of Buyer or its employees, agents, contractors,
subcontractors or representatives (each a “Buyer Party” and, collectively, the “Buyer Parties”)
in connection with such studies and investigations, except for Claims arising from or related to
any pre-existing condition on or of the Property or Claims to the extent caused by the active
negligence or willful misconduct of Seller or its employees, agents, contractors or representatives.
In addition, in the event Buyer or any Buyer Party causes any damage to any portion of the
Property, Buyer shall promptly restore the Property as nearly as possible to the physical condition
existing immediately prior to Buyer’s entry onto the Property.
13.18 Memorandum of Agreement. A Memorandum of Agreement in substantially the
form of Exhibit D attached hereto and incorporated herein by this reference shall be executed and
recorded against the Property immediately following recordation of the Grant Deed.
13.19 Relationship Between Seller and Buyer. It is hereby acknowledged that the
relationship between Seller and Buyer is not that of a partnership or joint venture and that Seller
and Buyer shall not be deemed or construed for any purpose to be the agent of the other.
Accordingly, except as expressly provided herein or in the exhibits hereto, Seller shall have no
rights, powers, duties or obligations with respect to the development, operation, maintenance or
management of the Project.
13.20 Seller Approvals and Actions. Whenever a reference is made herein to an action or
approval to be undertaken by Seller, the City Manager or his or her designee is authorized to act
on behalf of Seller.
13.21 Estoppel Certificates. A Party may, at any time during the term of this Agreement,
and from time to time, deliver written notice to another Party requesting such Party to certify in
writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect
and a binding obligation of the Parties, (ii) this Agreement has not been amended or modified
either orally or in writing, or if amended; identifying the amendments, (iii) the requesting Party is
not in default in the performance of its obligations under this Agreement, or if in default, to
describe therein the nature and amount of any such defaults, and (iv) any other information
reasonably requested. The requesting Party shall be responsible for all reasonable costs incurred
by the Party from which such certification is requested and shall reimburse such costs within thirty
(30) days of receiving the certifying Party’s request for reimbursement. The Party receiving a
request hereunder shall execute and return such certificate or give a written, detailed response
explaining why it will not do so within twenty (20) days following the receipt thereof. The failure
of either Party to provide the requested certificate within such twenty (20) day period shall
constitute a confirmation that this Agreement is in full force and effect and no modification or
default exists. Seller acknowledges that a certificate hereunder may be relied upon by transferees
and mortgagees.
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13.22 Mortgagee Protection. After Close of Escrow, no violation or breach of the
covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall
defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or
other financing or security instrument; provided, however, that any successor of Buyer to the
Property shall be bound by such remaining covenants, conditions, restrictions, limitations and
provisions, of this Agreement whether such successor’s title was acquired by foreclosure, deed in
lieu of foreclosure, trustee’s sale or otherwise. Specifically:
(a) Mortgagee Not Obligated; Mortgagee as Transferee. No Mortgagee shall
have any obligation or duty under this Agreement, except that nothing contained in this Agreement
shall be deemed to permit or authorize any Mortgagee to undertake any new construction or
improvement project, or to otherwise have the benefit of any rights of Developer, or to enforce
any obligation of City, under this Agreement, unless and until such Mortgagee has received a
transfer or assignment of rights pursuant to Article 8.
(b) Notice of Default to Mortgagee; Right of Mortgagee to Cure. If the City
receives notice from a Mortgagee requesting a copy of any notice of an event of default given
Developer hereunder and specifying the address for service thereof, then City shall deliver to such
Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with
respect to any claim by City that Developer has committed a Default. Such Mortgagee shall have
the right (but not the obligation) to cure or remedy, or to commence to cure or remedy, the default
claimed or the areas of noncompliance set forth in City's notice within the applicable time periods
for cure specified in this Agreement.
(c) Priority of Mortgages. For purposes of exercising any remedy of a
Mortgagee pursuant to this Article, or for becoming an assignee or transferee in the manner
specified in Article 9, applicable law shall govern the rights, remedies and priorities of each
Mortgagee, absent a written agreement between Mortgagees otherwise providing.
13.23 Certificate of Completion. Promptly after completing the Project in accordance
with those provisions of this Agreement that relate solely to the obligations of Developer to
construct the Project (including the dates for beginning and completion thereof), upon the
Developer’s written request that the City issue a Certificate of Completion, the City will provide
a Certificate of Completion within thirty (30) days of such a request if the Developer has met the
requirements for such issuance (the "Certificate of Completion"). If the Developer requests
issuance of a Certificate of Completion, but the City refuses, then the City shall provide the
Developer with a written explanation of its refusal within ten (10) days of the Developer's request.
The Certificate of Completion will be the conclusive determination that those covenants in this
Agreement with respect to the obligations of the Developer to construct the Project and the dates
for the beginning and completion thereof have been met. The Certificate of Completion shall be
in such form as will enable such certificate to be recorded in the Official Records. The Certificate
of Completion will not constitute evidence of compliance with or satisfaction of any obligation of
the Developer to: (a) any holder of a Security Financing Interest; (b) pay prevailing wages; or (c)
comply with the Accessibility Requirements. The Certificate of Completion may not be deemed
a notice of completion under the California Civil Code.
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13.24 Effective Date. This Agreement shall be deemed effective upon execution by the
Parties.
SIGNATURES ON FOLLOWING PAGES
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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: _______________________________
Sky Woodruff
City Attorney
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BUYER:
SSF PUC HOUSING PARTNERS, LLC,
a Delaware limited liability company
By: _______________________
Name:
Title:
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LIST OF EXHIBITS
Exhibit A Legal Description
Exhibit B Form of Grant Deed
Exhibit C Schedule of Performance
Exhibit D Form of Memorandum of Agreement
Exhibit E Form of Development Agreement
Exhibit F Form of Affordable Housing Agreement (BRIDGE)
Exhibit G Form of Affordable Housing (BRIDGE) Assignment & Assumption
Agreement
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EXHIBIT A
LEGAL DESCRIPTION
[Insert]
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EXHIBIT B
FORM OF GRANT DEED
Recording Requested by
and when Recorded, return to:
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE)
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, the City of South
San Francisco, a municipal corporation (the “Grantor”) hereby grants to SSF PUC Housing
Partners, LLC (the “Grantee”) all that real property located in the City of South San Francisco,
County of San Mateo, State of California at __________________, designated as San Mateo
County Assessor’s Parcel Nos._________ and more particularly described in Exhibit A attached
hereto and incorporated in this grant deed (“Grant Deed”) by this reference.
1. Development Agreement. The Property is conveyed subject to the LRPMP and
that certain Development Agreement dated as of ________________, entered into by and between
Grantee and the Grantor, acting to carry out the LRPMP (the “Development Agreement”).
2. Use Restrictions. The Grantee hereby covenants and agrees, for itself and its
successors and assigns, that the Property shall be used and developed solely for purposes consistent
with the requirements of the City of South San Francisco General Plan, as it presently exists or
may be amended.
3. Nondiscrimination. Grantee shall not restrict the rental, sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis
of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital
status, national origin, ancestry, familial status, source of income, disability, or genetic information
of any person . Grantee covenants for itself and all persons claiming under or through it, and this
Grant Deed is made and accepted upon and subject to the condition that there shall be no
discrimination against or segregation of any person or group of persons on account of any basis
listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined
in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955,
and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property or part thereof, nor shall Grantee or any person claiming under
or through Grantee establish or permit any such practice or practices of discrimination or
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segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sub lessees or vendees in, of, or for the Property or part thereof.
All deeds, leases or contracts made or entered into by Grantee, its successors or assigns, as
to any portion of the Property or the Improvements shall contain the following language:
(a) In Deeds, the following language shall appear:
“(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons
claiming under or through it, that there shall be no discrimination against or segregation of a person
or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m)
and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property
herein conveyed nor shall the grantee or any person claiming under or through the grantee establish
or permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or
vendees in the property herein conveyed. The foregoing covenant shall run with the land.
“(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall
not be construed to apply to housing for older persons, as defined in Section 12955.9 of the
Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to
affect Sections 51.2, 51.3, 51.4, 51.10, and 799.5 of the Civil Code, relating to housing for senior
citizens. Subdivision (d) of Section 51 of the Civil Code and subdivisions (d) of Section 12955 of
the Government Code shall apply to paragraph (1).”
(b) In Leases, the following language shall appear:
“(1) The lessee herein covenants by and for the lessee and lessee’s heirs, personal
representatives and assigns, and all persons claiming under the lessee or through the lessee, that
this lease is made subject to the condition that there shall be no discrimination against or
segregation of any person or of a group of persons on account of race, color, religion, sex, gender,
gender identity, gender expression, sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability, or genetic information in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee
or any person claiming under or through the lessee establish or permit any such practice or
practices of discrimination of segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sub lessees, subtenants, or vendees in the property herein leased.
“(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not
be construed to apply to housing for older persons, as defined in Section 12955.9 of the
Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to
affect Sections 51.2, 51.3, 51.4, 51.10, and 799.5 of the Civil Code, relating to housing for senior
citizens. Subdivision (d) of Section 51 of the Civil Code and subdivision (d)of Section 12955 of
the Government Code shall apply to paragraph (1).”
(c) In Contracts, the following language shall appear:
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“There shall be no discrimination against or segregation of any person or group of persons
on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code,
as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or
any person claiming under or through the transferee establish or permit any such practice or
practices of discrimination or segregation with reference to selection, location, number, use or
occupancy of tenants, lessee, subtenants, sub lessees or vendees of the land.”
4. Term of Restrictions. The covenants contained in Section 1 and Section 2
regarding use of the Property shall remain in effect until the date which is the expiration date of
the Development Agreement. The covenants against discrimination contained in Sections 3 shall
remain in effect in perpetuity.
5. Mortgagee Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or
in any way impair the lien or charge of any mortgage, deed of trust or other financing or security
instrument permitted by the Development Agreement; provided, however, that any successor of
Grantee to the Property shall be bound by such remaining covenants, conditions, restrictions,
limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu
of foreclosure, trustee's sale or otherwise.
6. Binding On Successors. The covenants contained in Sections 2 and 3 of this Grant
Deed, without regard to technical or legal classification or designation specified in this Grant Deed
or otherwise, shall to the fullest extent permitted by law and equity, be binding upon Grantee and
any successor in interest to the Property or any part thereof, for the benefit of Grantor, and its
successors and assigns, for such period of time of applicable ownership, and such covenants shall
run in favor of and be enforceable by the Grantor and its successors and assigns for the entire
period during which such covenants shall be in force and effect, without regard to whether the
Grantor is or remains an owner of any land or interest therein to which such covenants relate. In
the event of any breach of any of such covenants, the Grantor and its successors and assigns shall
have the right to exercise all rights and remedies available under law or in equity to enforce the
curing of such breach.
7. Enforcement. The Grantor shall have the right to institute such actions or
proceedings as it may deem desirable to enforce the provisions set forth herein. Any delay by the
Grantor in instituting or prosecuting any such actions or proceedings or otherwise asserting its
rights hereunder shall not operate as a waiver of or limitation on such rights, nor operate to deprive
Grantor of such rights, nor shall any waiver made by the Grantor with respect to any specific
default by the Grantee, its successors and assigns, be considered or treated as a waiver of Grantor’s
rights with respect to any other default by the Grantee, its successors and assigns, or with respect
to the particular default except to the extent specifically waived.
8. Amendment. Only the Grantor, its successors and assigns, and the Grantee and the
successors and assigns of the Grantee in and to all or any part of the fee title to the Property shall
have the right to consent and agree to changes or to eliminate in whole or in part any of the
covenants contained in this Grant Deed. For purposes of this Section, successors and assigns of
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the Grantee shall be defined to include only those parties who hold all or any part of the Property
in fee title, and not to include a tenant, lessee, easement holder, licensee, mortgagee, trustee,
beneficiary under deed of trust, or any other person or entity having an interest less than a fee in
the Property and Improvements.
9. Conflict. In the event there is a conflict between the provisions of this Grant Deed
and the Agreement, it is the intent of the parties that the Agreement shall control.
10. Counterparts. This Grant Deed may be executed in counterparts, each of which
shall be an original and all of which taken together shall constitute one and the same instrument.
SIGNATURES ON FOLLOWING PAGES.
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IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
________________, 201__.
GRANTOR
CITY OF SOUTH SAN FRANCISCO
By: _______________________________
Mike Futrell
City Manager
ATTEST:
By: _______________________________
City Clerk
APPROVED AS TO FORM:
By: _______________________________
City Attorney
GRANTEE: FORM – DO NOT SIGN
SSF PUC Housing Partners, LLC
a Delaware limited liability company
By: _______________________________
Name:
Title:
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EXHIBIT A to Grant Deed
(Attach legal description)
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss.
County of San Mateo )
On_____________________, 20____ before me, _____________________, a Notary Public, in
and for said State and County, personally appeared _______________________, who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________
NOTARY PUBLIC
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss.
County of San Mateo )
On_____________________, 20____ before me, _____________________, a Notary Public, in
and for said State and County, personally appeared _______________________, who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________
NOTARY PUBLIC
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EXHIBIT C
SCHEDULE OF PERFORMANCE
NOTE: Capitalized terms used below shall have the meaning ascribed to such terms in the
Purchase and Sale Agreement (“Agreement”) to which this Exhibit C is attached. All of the dates
and deadlines described herein shall be subject to extension by the City Manager pursuant to
Section 5.6 of the Agreement and/or “Force Majeure” in accordance with Section 7.4 of the
Agreement. The provisions of the Schedule of Performance are intended as a convenient guideline
for the Parties and are not intended to supersede or amend the referenced operative sections listed
therein. In the event of any conflict between this Schedule of Performance and the Agreement,
the Agreement shall control.
# MILESTONE TIMING REQUIREMENT
Pre-Escrow
1 OB Approval Date (§1.2) Prior to Outside OB Approval Date.
2 Identify Escrow Holder and Opening of
Escrow (§3.2)
Within 10 days after the OB Approval
Date.
Pre-Closing
3 Preliminary Title Report issued by Escrow
Holder (§4.1)
Within 15 days of Opening of Escrow.
4 Buyer review of Preliminary Title Report
(§4.1)
Within 30 days of receipt of Preliminary
Title Report.
5 Buyer and City to provide regular updates on
satisfaction and/or waiver of conditions
precedent to Closing.
No less than monthly or more often as the
circumstances warrant.
6 Satisfaction or waiver of conditions precedent
to Closing (§5.2 and §5.3)
Prior to Closing.
7 Closing (§5.1) Within 30 days after satisfaction or waiver
of all conditions precedent, but no later
than prior to March 31, 2022 (“Outside
Closing Date”).
Post-Closing
8 Buyer provides City regular updates on
Project construction.
No less than quarterly or more often as the
circumstances warrant.
9 Buyer Commences Construction of Building
C1 and Building C2, and related Adjacent
Areas as defined in the Project Approvals
(“Phase I”) For the purposes of this Schedule
of Performance, “Commences Construction”
means that the following have occurred as to
the Project: (i) the City has issued the Buyer a
demolition permit and/or a grading permit, (ii)
the Buyer has signed contracts with a general
contractor for the demolition and/or grading
In sufficient time to timely Substantially
Complete Phase I pursuant to this Schedule
of Performance, but within one (1) year
after Closing.
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work, and (iii) the Buyer has given the general
contractor a notice to proceed and has caused
the general contractor to physically commence
excavation and/or grading of the Property.
10 Buyer Substantially Completes Construction
of Phase I.
For the purposes of this Schedule of
Performance, “Substantial Completion” shall
be deemed to have occurred when
construction has been completed (subject only
to punch list items) such that the Project (or
applicable portion thereof) is ready for
occupancy and the life safety systems, as
applicable, have been installed and are
functional.
Subject to diligence pursuit after
Commencement of Construction; but in no
event later than five (5) years after
Closing.
11 Buyer Commences Construction of Oak
Avenue Phase 1 Extension and shall make the
Oak Avenue Phase II Extension Payment
required under Section 3.4(a) of the
Development Agreement.
Within one hundred and eighty (180) days
from written notice to proceed from the
City with respect to the Civic Campus
Project; provided however, notice shall not
be provided earlier than 180 days after
Commencement of Construction of Phase I
and no later than necessary as required to
provide access for Phase II (defined
below).
12 Buyer Completes Construction of Oak Avenue
Phase 1 Extension. For the purposes of this
Schedule of Performance “Completes
Construction of Oak Avenue Phase 1
Extension” shall mean when the Oak Avenue
Phase 1 Extension has been complete and
accepted for dedication by the City.
Within eighteen (18) months from
Commencement of Construction of Oak
Avenue Phase 1 Extension.
13 Buyer Commences Construction of the
Building B and related Adjacent Areas as
defined in the Project Approvals (“Phase II”).
In sufficient time to timely Substantially
Complete Phase II pursuant to this
Schedule of Performance, but in no event
later than six (6) years after Closing.
14 Buyer Substantially Completes Construction
of Phase II.
Subject to diligence pursuit after
Commencement of Construction of Phase
II; but in no event later than eight (8) years
after Close of Escrow.
15 City shall provide the Certificate of
Completion to Buyer (§13.23)
Within thirty (30) days following
completion of the each applicable portion
of the Project and Buyer’s written request
therefor.
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EXHIBIT D
FORM OF MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of South San Francisco
P.O. Box 711
South San Francisco, CA 94083
______________________________________________________________________________
(Space Above This Line Reserved For Recorder’s Use)
This instrument is exempt from recording fees pursuant to Government Code section 27383.
NOTICE OF AGREEMENT
This Notice of Agreement (this "Notice"), dated as of ________, 201__, is entered into by
and between the City of South San Francisco, a municipal corporation (“Seller” or “City”) and
SSF PUC Housing Partners, LLC, (“Buyer”).
A. On ________, 2019, Seller and Buyer entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions (“PSA”) with respect to real property owned by Seller,
as more particularly described in Exhibit A attached hereto and incorporated herein by this
reference (“Property”).
B. The PSA sets forth certain agreements made by the Parties with respect to their the
Property.
C. This Notice is prepared for the purpose of recordation only, and it in no way
modifies the provisions of the PSA.
D. This Notice shall extend to and be binding upon the Parties hereto and their legal
representatives, heirs, successors, and assigns.
E. This Notice may be executed in counterparts, each of which is deemed to be an
original, and all such counterparts constitute one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
3442753.1
IN WITNESS WHEREOF, Seller and Buyer have executed this Notice 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: _______________________________
City Attorney
FORM – DO NOT SIGN
3442753.1
BUYER:
SSF Housing Partners, LLC
a Delaware limited liability company
By: _______________________________
Name:
Title:
FORM – DO NOT SIGN
[INSERT NOTARY FORMS IN EXECUTION COPY]
3442753.1
EXHIBIT A
TO
NOTICE OF AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
REAL PROPERTY IN THE CITY OF SOUTH SAN FRANCISCO, COUNTY OF SAN
MATEO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
[Insert]
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EXHIBIT E
FORM OF DEVELOPMENT AGREEMENT
[INSERT]
3442753.1 5
EXHIBIT F
FORM OF AFFORDABLE HOUSING AGREEMENT (BRIDGE)
[INSERT]
3442753.1 6
EXHIBIT G
FORM OF AFFORDABLE HOUSING (BRIDGE) ASSIGNMENT & ASSUMPTION
AGREEMENT
[INSERT]
1
ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
AND PURCHASE AND SALE AGREEMENT BY AND BETWEEN
SSF PUC HOUSING PARTNERS, LLC AND BRIDGE HOUSING CORPORATION
This Assignment and Assumption of Development Agreement and Purchase and Sale
Agreement (this "Agreement") is entered into as of _________, 20__ (the "Execution Date"), by
and between SSF PUC Housing Partners, LLC, a Delaware limited liability company
("Assignor"), and BRIDGE Housing Corporation, a California nonprofit public benefit
corporation ("Assignee"), collectively referred to herein as the "Parties," with reference to the
following facts:
RECITALS
A. Assignor has acquired, pursuant to that certain Purchase and Sale Agreement dated
________, 2020 (the "PSA") with the City of South San Francisco, a municipal corporation
(the "City"), a legal and or equitable interest in that certain real property described in Exhibit
A-1 to this Agreement (the "Property").
B. Assignor intends to develop the Property pursuant to a Development Agreement with the
City recorded as document number _____ in the official records of San Mateo County (the
"DA") with a project (the "Project") described more particularly in the DA, and generally
including 800 residential units, an approximately 8,307 square foot childcare center (the
"Childcare Center"), an approximately 12,992 square foot commercial building (the "Market
Hall"), landscaping and Park Improvements, and other improvements and Public
Infrastructure. The DA also obligates Assignor to construct certain Offsite Improvements
and to pay certain Impact Fees.
C. Of the 800 residential units to be constructed in the Project, 158 are designated in the DA as
below market rate units affordable to households with incomes at or below 80 percent (80%)
of area median income, exclusive of the manager's unit (“Affordable Units”). The 158
Affordable Units shall be affordable to residents with incomes in the range of 30 to 80%
AMI with an overall average for all units at 60% AMI. Construction of these Affordable
Units is a material obligation of the Developer under the PSA and DA, and certain benefits
under Government Code Section 65915 will inure to the Project because of the Affordable
Units. The DA contemplates construction of a building identified as "Building C2" to house
the Affordable Units, which will be constructed on a portion of the Project designated in the
vesting tentative tract map for the project as "Parcel 1" and described more particularly in
Exhibit A-2 to this Agreement.
D. Assignor desires to assign Parcel 1 and its obligation to construct Building C2 to Assignee,
and Assignee desires to accept the assignment of the same. The purpose of this Agreement is
to memorialize said assignment and assumption of rights and obligations, to evidence site
control of Parcel 1 by Assignee, and to delineate the Parties' respective obligations for
development of the Project.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledge, the Parties agree as follows:
2
ARTICLE 1. RECITALS,
DEFINITIONS, AND EXHIBITS
Section 1.1 Recitals.
The Parties hereby agree that each of the foregoing recitals is true and correct.
Section 1.2 Definitions.
The capitalized terms below shall have the following meanings:
(a) "Affiliate" shall mean, (i) a limited partnership in which Assignee is the
managing general partner, formed for the purpose of leveraging tax credit financing for the
development of Building C2; (ii) a limited liability company in which Assignee is the sole
member, formed to be the managing general partner of such a tax credit limited partnership; or
(iii) a tax credit limited partnership whose managing general partner is a limited liability
company described in the previous clause or a corporation controlled by Assignee.
(b) "Affordable Units" is defined in Recital C.
(c) "Agreement" is defined in the opening paragraph.
(d) "Assignee" is defined in the opening paragraph.
(e) "Assignor" is defined in the opening paragraph.
(f) "Assignee Obligations" is defined in Section 4.1.
(g) "Assignor Obligations" is defined in Section 4.2.
(h) "Building C2" is defined in Recital C.
(i) "Childcare Center" is defined in Recital B.
(j) "City" is defined in Recital A.
(k) "Closing" shall have the meaning given in the PSA.
(l) "Conditions of Approval" shall mean requirements imposed by the City as
a condition of any land use entitlement necessary for the development of the Project.
(m) "Consent " means the consent agreement to be executed by the City,
attached hereto as Exhibit B.
(n) "DA" is defined in Recital B.
(o) "Developer" shall have the meaning given by the DA.
(p) “Effective Date” is defined in Section 5.6.
3
(q) "Execution Date" is defined in the opening paragraph.
(r) "Environmental Mitigation Measures" shall mean Conditions of Approval
imposed upon the Project pursuant to the California Environmental Quality Act, as identified in
an adopted Mitigation Monitoring and Reporting Program applicable to the Project.
(s) "Impact Fees" shall mean a monetary exaction other than a tax or special
assessment, whether established for a broad class of projects by legislation of general
applicability or imposed on a specific project on an ad hoc basis, that is charged by a local
agency to the applicant in connection with approval of a development project for the purpose of
defraying all or a portion of the cost of public facilities related to the development project, but
does not include fees for processing applications for governmental regulatory actions or
approvals.
(t) "Market Hall" is defined in Recital B.
(u) "Oak Avenue Extensions" means, collectively, the Oak Avenue Phase 1
Extension and Oak Avenue Phase 2 Extension, as defined in the DA and PSA.
(v) "Offsite Improvements" shall mean Public Infrastructure, excluding Public
Infrastructure to be constructed on the Property.
(w) "PALE" shall mean the approximately 33,981 square feet of land
designated in the vesting tentative tract map for the Project as the Public Access and Landscape
Easement on BART Property, together with approximately 8,529 square feet of land owned by
the City adjacent thereto, to be subject to an Encroachment and Maintenance Agreement.
(x) "Parcel 1" is defined in Recital C.
(y) "Parties" are defined in the opening paragraph.
(z) "Park Improvements" means the landscaping, playground equipment,
bioretention basins, emergency vehicle access, sidewalks, and other improvements proposed in
the entitlement application for the Project to be constructed on the PALE.
(aa) "Paseo" means the paseo to be constructed between the Project's
residential buildings and along the southeastern edge of Parcel 1 and northwestern edge of Parcel
2, as depicted on the vesting tentative tract map for the Project. "Paseo" also includes an initial
asphalt driveway that will be constructed in the location of the Paseo for emergency vehicle
access prior to full build-out of the Paseo improvements.
(bb) "Project" is defined in Recital B.
(cc) "Property" is defined in Recital A.
(dd) "PSA" is defined in Recital A.
4
(ee) "Public Infrastructure" shall mean infrastructure and other improvements
constructed for use by, or for the benefit of, the general public, including, without limitation,
utilities, sidewalks, roads, other rights of way, and Park Improvements.
Section 1.3 Exhibits.
The following exhibits are attached to this Agreement, and are incorporated herein by this
reference:
Exhibit A-1: Legal Description of the Property
Exhibit A-2: Legal Description of Parcel 1
Exhibit B: City's Consent
Exhibit C: Depiction of Portions of PALE to be Developed by each Party
ARTICLE 2. ASSIGNMENT
AND ASSUMPTION OF PSA
Section 2.1 Assignment and Assumption.
Assignor hereby assigns and delegates to Assignee, and Assignee hereby accepts and
assumes from Assignor, Assignor's rights, title, and interest under the PSA to acquire Parcel 1
from the City for the purpose of developing, constructing, owning, and operating Building C2.
Section 2.2 Consideration.
At Closing, Assignee shall pay the City the Parcel 1 Purchase Price to acquire Parcel 1.
The “Parcel 1 Purchase Price” is the lesser of $2,200,000 or 20% of the Purchase Price paid
under the PSA. If Assignee pays the City the Parcel 1 Purchase Price to acquire Parcel 1,
Assignor agrees to repay Assignee the amount of the Parcel 1 Purchase Price, which obligation
shall be secured by recording a deed of trust or other security instrument, to be approved as to
form by the City Manager and City Attorney, in first lien position against the remainder of the
Property (i.e., that part of the Property not including Parcel 1) at the time of Close of Escrow
between Assignor and the City. Notwithstanding the forgoing if Assignor acquires the remainder
of the Property (or a portion thereof), before Assignee acquires Parcel 1, then Assignor will pay
to the City the Parcel 1 Purchase Price for the benefit of Assignee and Assignee shall pay the
City $1 to acquire Parcel 1.
Section 2.3 Consent and Release by City (PSA).
The City's consent and release to this partial assignment and assumption of the PSA is set
forth in the Consent. Parties hereby mutually acknowledge and agree to every provision of the
Consent.
5
ARTICLE 3. ASSIGNMENT
AND ASSUMPTION OF DA
Section 3.1 Assignment by Assignor.
Assignor hereby assigns and delegates to Assignee the rights, title, duties, and interest of
the Developer under the DA with respect to the development of Parcel 1 and the construction of
Building C2.
Section 3.2 Assumption by Assignee.
Assignee hereby accepts and assumes from Assignor, Assignor's rights, title, duties, and
interest under the DA, as assigned under Section 3.1; provided, however, that Assignee's
obligations under the DA are expressly limited to the Assignee Obligations, as set forth in Article
4.
Section 3.3 Consent and Release by City (DA).
The City's consent and release to this partial assignment and assumption of the DA is set
forth in the Consent. Parties hereby mutually acknowledge and agree to every provision of the
Consent.
ARTICLE 4. OBLIGATIONS OF THE PARTIES
Section 4.1 Assignee Obligations.
(a) Assignee's obligations to develop the Project, perform Environmental
Mitigation Measures and other Conditions of Approval, construct Offsite Improvements and
other Public Infrastructure, and pay Impact Fees (the "Assignee Obligations"), shall consist of
and be limited to the following obligations:
(1) To develop Building C2 to operate as an affordable housing project
as set forth in the DA;
(2) To construct that portion of the Paseo located on Parcel 1;
(3) To construct those Park Improvements planned to be located on the
portion of the PALE depicted on Exhibit C attached hereto, which is adjacent and to the
southwest of Parcel 1;
(4) To construct any Public Infrastructure to be located on Parcel 1
and any Offsite Improvements required to be constructed by the Developer along that portion of
the Mission Road right of way fronting onto Parcel 1;
(5) To construct a bicycle connection north of Building C2;
(6) Generally, to perform and comply with all Environmental Mitigation
Measures and other Conditions of Approval that relate directly to the performance of the
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foregoing obligations, including, in the performance of the Assignee Obligations, (i) compliance
with the City's climate action plan; (ii) compliance with any transportation demand management
or parking management plan for the Project; and (iii) compliance with any water quality control,
flood control, engineering, or public safety conditions of approval; compliance with federal and
state law, including but not limited to compliance with prevailing wage requirements and any
obligation to obtain government approvals, with respect to Parcel 1 and Building C2;
construction or undergrounding of any utility, but only directly serving Building C2 or located
on Parcel 1 (subject to Government Code Section 66485, et seq.);
(7) To pay Impact Fees due and owing to the City pursuant to the DA
for the 158 residential units to be constructed on Parcel 1, which are estimated as follows but will
be finally determined at the time such Impact Fees are paid consistent with the provisions in the
DA:
(A) Sewer capacity fee: $533,008,
(B) Park impact fees: $2,374,108,
(C) Bike and pedestrian fees: $20,066,
(D) Public safety impact fee (police): $26,686, and
(E) Public safety impact fee (fire): $62,268;
(8) To pay any other Impact Fees due and owing to any public agency
other than the City for Parcel 1 or Building C2, whether calculated in proportion to the number
of units in Building C2, the size of Parcel 1, or other measure that accounts for Assignee's
proportional share of the fee; and
(9) To pay expedited plan check fees, but only if Assignee requests an
expedited plan check.
(b) For greater clarity, and without limiting the generality of Subsection (a),
Assignee shall not be responsible for, and the Assignee Obligations shall not include any
obligations or requirements that do not directly relate to the development and operation of Parcel
1 and Building C2 or satisfaction of the obligations listed in Section 4.1(a). For non-exhaustive
examples only:
(1) The performance of or compliance with any Environmental Mitigation
Measure or Condition of Approval not directly relating to the development of Parcel 1 and
Building C2 and the performance of the Assignee Obligations as defined in Section 4.1,
including;
(2) The performance of any Environmental Mitigation Measure requiring
construction of transportation Offsite Improvements, except any such improvements within the
Mission Road right of way fronting Parcel 1 as provided in Section 4.1(a)(4), or requiring
Assignee to fund more than its proportionate share of the cost of any such improvement;
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(3) The construction of any improvement not described in Subsection (a),
including, without limitation, (i) construction or undergrounding of any utility not on or serving
Parcel 1 or Building C2; (ii) satisfaction of the Developer's public art commitment; or (iii) the
construction of the Childcare Center, Market Hall, Oak Avenue Extensions, or other Project
improvements or Off-Site Improvements to be located on any parcel other than Parcel 1, unless
expressly identified in Subsection (a);
(4) The payment of any Impact Fee not described in Subsection (a); and
(5) Compliance with federal and state law, including but not limited to
compliance with prevailing wage requirements and any obligation to obtain government
approvals, except with respect to Parcel 1 and Building C2.
Section 4.2 Assignor Obligations.
Assignor shall be responsible for all obligations of the Developer, except for the Assignee
Obligations, to develop the Project, perform and comply with Environmental Mitigation
Measures and other Conditions of Approval, construct Offsite Improvements or other Public
Infrastructure, and pay any and all Impact Fees associated with the Project (the "Assignor
Obligations"). From and after the Effective Date, the Assignor shall not be responsible for the
Assignee Obligations and Assignee shall not be responsible for performance of the Assignor
Obligations.
ARTICLE 5. MISCELLANEOUS
Section 5.1 Further Assurances.
The Parties agree to take such further actions as may be necessary or advisable to
effectuate, confirm, or document the assignment and assumption contemplated hereby.
Section 5.2 City Consent to Further Assignment.
To the extent applicable, this Agreement may not be assigned without the written consent
the City consistent with the assignment provisions of the DA and PSA.
Section 5.3 Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions shall continue in full force and effect
unless the rights and obligations of the Parties have been materially altered or abridged by such
invalidation, voiding, or unenforceability.
Section 5.4 Interpretation.
This Agreement shall be governed and interpreted in accordance with the laws of the
state of California. This Agreement includes the contributions of both Parties, each of which is
represented by competent counsel, and the rule stated in Civil Code Section 1654 that an
agreement be construed against its drafter shall have no application hereto. Headings contained
8
in this Agreement are for convenience of reference only, and shall not alter the meaning of any
provision hereof.
Section 5.5 Counterparts.
This Agreement may be executed in counterparts, each of which shall constitute one and
the same instrument.
Section 5.6 Effective Date.
This Agreement shall be effective on the date fully executed by the Parties and the
Consent has been duly executed by the City.
Section 5.7 Recordation.
Either this Agreement or a memorandum of this Agreement shall be recorded against the
Property within ten (10) days of the Effective Date.
Section 5.8 Signatures.
The individuals executing this Agreement represent and warrant that they have the right,
power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the
respective legal entities of the Parties. This Agreement shall inure to the benefit of and be
binding upon the Parties hereto and their respective successors and assigns.
[Signatures on the Following Page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the
Execution Date.
ASSIGNOR: ASSIGNEE:
SSF PUC Housing Partners, LLC
a Delaware limited liability company
By: _____________________________
Name: _____________________________
Title: _____________________________
BRIDGE Housing Corporation,
a California nonprofit public benefit
corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
A-1–1
EXHIBIT A-1
PROPERTY LEGAL DESCRIPTION
A-2–1
EXHIBIT A-2
PARCEL 1 LEGAL DESCRIPTION
B–1
EXHIBIT B
CITY'S CONSENT AND RELEASE
The City hereby consents to the assignment and assumption set forth in this Agreement, and
further agrees as follows:
1. Parcel 1 shall be conveyed to Assignee separately from the remainder of the Property to
allow construction of Building C2 as contemplated under the PSA and DA, even if Assignor
fails to Close on the remainder of the Property under the PSA, the City will convey Parcel 1
to Assignee or an Affiliate thereof at Closing in consideration of the lesser of $2,200,000 or
20% of the Purchase Price paid under the PSAfor all Property.
2. Assignee's obligations to the City under the PSA, DA, or other Project entitlements shall be
limited to the Assignee Obligations, regardless of whether the Assignor Closes on the
remainder of the Property or the remainder of the Project is constructed.
3. The City hereby affirms that construction of the Affordable Units, as a component of the
Project, is a priority for the City. It is the intent of the City that Assignee have the ability to
develop Building C2 independently from the market rate components of the Project and at
the earliest possible opportunity. If warranted by changed circumstances, and at the City’s
discretion, the City will work with Assignee in good faith to refine and further delineate
Assignee's obligations hereunder.
4. From and after the Execution Date of this Agreement, Assignor is fully released from the
Assignee Obligations, Assignee is fully released from the Assignor Obligations, a default by
the Assignor will not constitute a default by Assignee, and a default by Assignee will not
constitute a default by Assignor. Notwithstanding anything to the contrary in this
Agreement, the PSA, or the DA, the City may not exercise any remedy, whether contractual,
regulatory, or otherwise, (i) with respect to Assignor because Assignee defaults under the
Assignee Obligations, or (ii) with respect to Assignee because Assignor defaults under the
Assignor Obligations. The limitations contained herein shall include the failure of the
Assignor or Assignee to Close or to commence and complete construction within any
specified time periods.
CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By: ______________________________
Mike Futrell, City Manager
ATTEST:
By: ______________________________
City Clerk
APPROVED AS TO FORM:
B–2
By: ______________________________
City Attorney
B–3
EXHIBIT C
DEPICTION OF PORTIONS OF PALE TO BE DEVELOPED BY EACH PARTY
3426080.1
144\324\2704905.1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.
[FORM OF ]
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
Parcel 1, Building C2, South San Francisco
by and between
THE CITY OF SOUTH SAN FRANCISCO
and
BRIDGE HOUSING CORPORATION
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This Affordable Housing Regulatory Agreement and Declaration of Restrictive
Covenants (this “Agreement”) is entered into effective as of _____________, 20__ (“Effective
Date”) by and between the City of South San Francisco, a municipal corporation (“City”) and
BRIDGE Housing Corporation, a California nonprofit public benefit corporation (“Owner”).
City and Owner are hereinafter collectively referred to as the “Parties.”
RECITALS
A. Owner owns that certain real property located in the City of South San Francisco
referred to a “Site C2”, located at 1051 Mission Road, and more particularly described in
Exhibit A attached hereto (the “Property”).
B. Under the Development Agreement executed by and between SSF PUC Housing
Partners, LLC and the City dated as of ____________ (the “Development Agreement”), as
partially assigned to Owner, the Property is required to be used for one hundred fifty-eight (158)
units of affordable housing and ancillary improvements (the "Project").
C. Pursuant to Government Code Section 65915 and South San Francisco Municipal
Code Chapter 20.390, Owner has agreed that the Project will result in 55 units being available to
residents with incomes at or below of fifty (50) percent of area median income. Furthermore,
Developer has requested a density bonus of twenty five (25) percent and has, pursuant to Section
20.390.010.B.7, requested development standard waivers including a FAR increase above the
maximum FAR for that site designated as "Site B" in the Development Agreement, and a waiver
of setback requirements under South San Francisco Municipal Code Section 20.270.004(D) for
the Property and for "Site C1" and "Site B," as designated in the Development Agreement. In
addition, City, through its Commercial Linkage Fee fund, will provide $2,000,000 of financial
assistance to Owner as referenced in the Loan Agreement attached hereto as Exhibit B.
D. As required by the Development Agreement, Owner shall record this Agreement
against the Property. The execution of this Agreement shall take place prior to final map
approval and shall be recorded upon final map recordation or, where a map is not being
processed, prior to the issuance of building permits for the Project.. The Parties intend the
covenants set forth in this Agreement to run with the land and to be binding upon Owner and Owner’s
successors and assigns for the full term of this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows.
AGREEMENT
1. Definitions. The following terms have the meanings set forth in this Section wherever
used in this Agreement or the attached exhibits.
“Actual Household Size" means the actual number of persons in the applicable
household.
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“Adjusted for Family Size Appropriate for the Unit” shall be determined as defined
below, and for units of any other size consistent with applicable federal rules (if any) and Section
50052.5(h) of the California Health and Safety Code, as it exists or may be amended:
One Bedroom – 1.5 people
Two Bedroom – 3 people
Three Bedroom – 4.5 people
"Adjusted Income" means, the income from all persons in the household including
nonrelated individuals, calculated using the methods to calculate income adopted by HUD or
TCAC.
"Affordable Rent" means rents allowed by TCAC for the Unit’s designated income level.
If TCAC does not publish such rents, it means the following amounts, less a utility allowance
and such other adjustments as required pursuant to the California Law: (i) for Units occupied by
Extremely Low Income Households, a monthly rent that does not exceed one-twelfth (1/12) of
thirty percent (30%) of AMI, Adjusted for Family Size Appropriate for the Unit; (ii) for Units
occupied by Very Low Income Households, a monthly rent that does not exceed one-twelfth
(1/12) of fifty percent (50%) of AMI, Adjusted for Family Size Appropriate for the Unit; and
(iii) for Units occupied by Lower Income Households, a monthly rent that does not exceed one-
twelfth (1/12) of eighty percent (80%) of AMI, Adjusted for Family Size Appropriate for the
Unit. "
Area Median Income" or "AMI" means the median income for San Mateo County,
California, adjusted for Actual Household Size, as determined by TCAC if the Project is
restricted by a tax credit regulatory agreement, or by HUD pursuant to Section 8 of the United
States Housing Act of 1937 and as published from time to time by the HCD in Section 6932 of
Title 25 of the California Code of Regulations or successor provision published pursuant to
California Health and Safety Code Section 50093(c). In the event that such income
determinations are no longer published or are not updated for a period of at least eighteen (18)
months, the City shall provide the Owner with other income determinations which are reasonably
similar with respect to methods of calculation to those previously published by HCD.
“Assignment and Assumption Agreement” is defined as the Assignment and
Assumption Agreement between the City of South San Francisco and BRIDGE Housing
dated __________ and included as Exhibit F to the Development Agreement.
“Claims” is defined in Section 10.
"Developer" is defined in the Development Agreement.
“Extremely Low Income Household” means persons and families whose incomes do
not exceed an annual gross household income for households of 30% Income Level as published
by TCAC, adjusted for Actual Household Size, or if TCAC does not publish such levels, it shall
have the meaning set forth in South San Francisco Municipal Code Section 20.390.002.P.
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“Indemnitees” is defined in Section 10.
"Lower Income Household" persons and families whose incomes do not exceed an
annual gross household income for households of 80% Income Level as published by TCAC,
adjusted for Actual Household Size, or if TCAC does not publish such levels, it shall have the
meaning set forth in South San Francisco Municipal Code Section 20.390.002.H.
"Rent" shall mean the total of monthly payments by the residents of a Unit (other than
the manager's Unit) for the following: use and occupancy of the Unit and land and associated
facilities, including parking; any separately charged fees or service charges assessed by Owner
which are required of all residents, other than security deposits; the cost of an adequate level of
service for utilities paid by the Resident, including garbage collection, sewer, water, electricity,
gas and other heating, cooking and refrigeration fuel, but not cable or telephone service; any
other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a
public or private entity other than Owner, and paid by the Resident.
"Resident" shall mean an individual or household occupying a Unit.
"TCAC" shall mean the California Tax Credit Allocation Committee.
"Units" shall mean the individual dwelling units to be constructed on the Property as part
of the Project.
"Very Low Income Household" means persons and families whose incomes do not
exceed an annual gross household income for households of 50% Income Level as published by
TCAC, adjusted for Actual Household Size, or if TCAC does not publish such levels, it shall
have the meaning set forth in South San Francisco Municipal Code Section 20.390.002.P.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its
successors and assigns, that the Property and Project shall be used solely for the operation of
affordable rental housing and related improvements in compliance with the Development
Agreement and the requirements set forth herein. Owner represents and warrants that it has not
entered into any agreement that would restrict or compromise its ability to comply with the
occupancy and affordability restrictions set forth in this Agreement, and Owner covenants that it
shall not enter into any agreement that is inconsistent with such restrictions without the express
written consent of City.
2.1 Affordability Requirements. For a term of fifty-five (55) years commencing upon
the date of issuance of a final certificate of occupancy for the Project, fifty-five (55) of the Units
in the Project shall be rented at an Affordable Rent to and occupied by or, if vacant, available for
occupancy by Very Low Income Households at Very Low Income Rents. The remaining Units
within the Project, exclusive of a manager's Unit, shall be rented at an Affordable Rent to and
occupied by or, if vacant, available for occupancy by households whose incomes range between
Extremely Low Income Households and Lower Income Households. The average affordable
restriction by of all of the Units, exclusive of a manager's Unit, shall be sixty percent (60%) of
AMI.
2.2 Rents for Very Low Income Units. The Rent charged to Residents of the Very
5
Low Income Units shall not exceed the rents allowed by TCAC for the Unit’s designated income
level (the " Low Income Rents"). If TCAC does not publish such rents, the monthly Very Low
Income Rents shall be 1/12th of 30% of the Unit's designated income level.
2.3 Increased Income of Residents. If, upon recertification of the income of a
Resident of a Unit, the Owner determines that the Resident has an Adjusted Income exceeding
the maximum qualifying income for the Unit, such Resident shall be permitted to continue
occupying the Unit upon expiration of the Resident's lease, and upon sixty (60) days written
notice, the Rent shall be increased to the lesser of thirty percent (30%) of the Resident's Adjusted
Income or fair market value, subject to the maximum rent allowed pursuant to other funding
restrictions.
2.4 Termination of Occupancy. Upon termination of occupancy of a Unit by a
Resident, Owner shall rent the Unit, to a Resident whose income is at or below the income level
of the former Resident when they qualified for occupancy of such Unit within thirty (30) days of
termination of occupancy by the former Resident
2.5 Condominium Conversion. Owner shall not convert the Units in the Project to
condominium or cooperative ownership or sell condominium or cooperative rights to the
residential portion of the Project or any part thereof unless Owner obtains the City's consent,
which consent shall be conditioned upon Owner's agreement to ensure that the Units remain
available as affordable housing. Prior to conveyance of any Unit(s), the buyer(s) of the for-sale
Units shall enter into an affordable housing agreement, in a form approved by the City Manager
and City Attorney, that maintains the affordability of the unit for the minimum term set forth in
this Agreement or in California law whichever is greater.
2.6 Non-Discrimination; Compliance with Fair Housing Laws.
2.6.1 Preferences. In order to ensure that there is an adequate supply of
affordable housing within the City for City residents and employees of businesses located within
the City, to the extent permitted by fair housing laws and other applicable laws, and consistent
with the program regulations for funding sources used for development of the Project, at initial
lease up, Owner shall give a preference in the Project to households that include at least one
member who lives or works in the City of South San Francisco. Owner will implement any
preferences in the rental of Units in the Project pursuant to a preference plan approved by its
lenders, investors and the City Manager. Notwithstanding the foregoing, in the event of a
conflict between this provision and the provisions of Section 42 of the Internal Revenue Code of
1986, as amended, the provisions of such Section 42 shall control.
2.6.2 Fair Housing. Owner shall comply with state and federal fair housing
laws in the marketing and rental of the Units. Owner shall accept as Residents, on the same basis
as all other prospective households, persons who are recipients of federal certificates or vouchers
for rent subsidies pursuant to the existing Section 8 program or any successor thereto.
2.6.3 Non-Discrimination. Owner shall not restrict the rental, sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property or Project, or any portion
thereof, on the basis of race, color, religion, sex, gender, gender identity, gender expression,
6
sexual orientation, marital status, national origin, ancestry, familial status, source of income,
disability, or genetic information of any person. Owner covenants for itself and all persons
claiming under or through it, and this Agreement is made and accepted upon and subject to the
condition that there shall be no discrimination against or segregation of any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, Project
or part thereof, nor shall Owner or any person claiming under or through Owner establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or
vendees in, of, or for the Property, Project or part thereof.
All deeds made or entered into by Owner, its successors or assigns, as to any portion of
the Property or Project shall contain the following language, and all leases or contracts made or
entered into by Owner, its successors or assigns, as to any portion of the Property or Project,
shall reference this Section, and shall enforce the same diligently and in good faith:
“(a) Owner herein covenants by and for itself, its successors and assigns, and all persons
claiming under or through it, that there shall be no discrimination against or segregation of a
person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the property herein conveyed nor shall the Owner or any person claiming under or through the
Owner establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub
lessees or vendees in the property herein conveyed. The foregoing covenant shall run with the
land.
“(b) Notwithstanding paragraph (a), with respect to familial status, paragraph (a) shall
not be construed to apply to housing for older persons, as defined in Section 12955.9 of the
Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to
affect Sections 51.2, 51.3, 51.4, 51.10, and 799.5 of the Civil Code, relating to housing for senior
citizens. Subdivision (d) of Section 51 of the Civil Code and subdivisions (d) of Section 12955
of the Government Code shall apply to paragraph (a).”
3. Reporting Requirements.
3.1. Household Certification. Owner or Owner’s authorized agent shall obtain from
each household prior to initial occupancy of each Unit, and on every anniversary thereafter, a
written certificate containing all of the following in such format and with such supporting
documentation as City may reasonably require:
(a) The identity of each household member; and
(b) The total gross household income;
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Owner shall retain such certificates for not less than three (3) years, and upon City’s
request, shall make the certificates available for City inspection.
3.2 Annual Report; Inspections. By not later than April 30th of each year during the
term of this Agreement, Owner shall submit an annual report (“Annual Report”) to the City in
form satisfactory to City, together with a certification that the Project is in compliance with the
requirements of this Agreement (as of December 31 of the prior year). The Annual Report shall,
at a minimum, include the following information for each Unit: (i) unit number; (ii) number of
bedrooms; (iii) current rent and other charges; (iv) dates of any vacancies during the previous
year; (v) number of people residing in the unit; (vi) total gross household income of residents;
(vii) documentation of source of household income; and (viii) the information required by
Section 3.1.
Owner shall include with the Annual Report, an income recertification for each
household, documentation verifying Very Low Income Household eligibility, and such
additional information as City may reasonably request from time to time in order to demonstrate
compliance with this Agreement. The Annual Report shall conform to the format requested by
City; provided however, during such time that the Project is subject to a TCAC regulatory
agreement, Owner may satisfy the requirements of this Section by providing City with a copy of
compliance reports required by TCAC.
3.3 On-site Inspection. Owner shall permit representatives of City to enter and inspect
the Property and the Project during reasonable business hours in order to monitor compliance with
this Agreement upon 48-hours advance notice of such visit to Owner or to Owner's management
agent.
3.4 Additional Information. Owner shall provide any additional information reasonably
requested by City. The City shall have the right to audit, examine and make copies of all books,
records, or other documents of the Owner which pertain to the Project.
3.5 Records. The Owner shall maintain complete, accurate and current records
pertaining to the Project, and shall permit any duly authorized representative of the City to inspect
records, including records pertaining to income and household size of the Residents. All Resident
lists, applications and waiting lists relating to the Project shall at all times be kept separate and
identifiable from any other business of the Owner and shall be maintained in a reasonable condition
for proper audit and subject to examination during business hours by representatives of the City.
The Owner shall retain copies of all materials obtained or produced with respect to occupancy of the
Units for a period of at least three (3) years, and for any period during which there is an audit
undertaken by the City.
4. Term of Agreement.
4.1 Term of Restrictions. Unless extended by mutual agreement of the Parties, upon
the 55th anniversary of issuance of the final certificate of occupancy for the Project, this
Agreement shall automatically terminate and be of no further force or effect. The Owner shall
provide all notices and rights to tenants required to be given prior to and upon the expiration of
affordability covenants pursuant to Government Code Section 65863.10 or a successor statute.
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4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan. This
Agreement shall remain effective and fully binding for the full term hereof, regardless of any sale,
assignment, transfer, or conveyance of the Property or the Project or any part thereof or interest
therein.
4.3 Reconveyance. Upon the expiration of this Agreement, the Parties agree to
execute and record appropriate instruments to release and discharge this Agreement; provided,
however, the execution and recordation of such instruments shall not be necessary or a
prerequisite to evidence the expiration of this Agreement, or to evidence the release and
discharge of this Agreement as a matter of title.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects
its interest in the Property and the Project to the covenants and restrictions set forth in this
Agreement. The Parties hereby declare their express intent that the covenants and restrictions set
forth herein shall be deemed covenants running with the land and shall be binding upon and
inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and
assigns of the Parties, regardless of any sale, assignment, conveyance or transfer of the Property, the
Project or any part thereof or interest therein. Each and every contract, deed, ground lease or other
instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively
be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties
and obligations set forth herein, regardless of whether such covenants, restrictions, duties and
obligations are set forth in such contract, deed, ground lease or other instrument. If any such
contract, deed, ground lease or other instrument has been executed prior to the date hereof,
Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by
the parties to such contract, deed, ground lease or other instrument pursuant to which such
parties acknowledge and accept this Agreement and agree to be bound hereby.
Owner agrees for itself and for its successors that in the event that a court of competent
jurisdiction determines that the covenants herein do not run with the land, such covenants shall
be enforced as equitable servitudes against the Property and the Project in favor of City.
6. Property Management; Repair and Maintenance; Marketing.
6.1 Management Responsibilities. Owner, or Owner’s designee, shall be responsible
for all management functions with respect to the Property and the Project, including without
limitation the selection of Very Low Income Households and Residents, certification and
recertification of household income and eligibility, evictions, collection of rents and deposits,
maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and
security. City shall have no responsibility for management or maintenance of the Property or the
Project.
6.2 Repair, Maintenance and Security. Throughout the term of this Agreement,
Owner, or Owner’s designee, shall at its own expense, maintain the Property and the Project in
good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable
living conditions in conformity with all applicable state, federal, and local laws, ordinances,
codes, and regulations. Without limiting the foregoing, Owner agrees to maintain the Project
and the Property (including without limitation, the Units, common areas, meeting rooms,
9
landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance,
debris, unmaintained landscaping, graffiti, disrepair and abandoned vehicles/appliances, and
shall take all reasonable steps to prevent the same from occurring on the Property or at the
Project.
6.2.1 City’s Right to Perform Maintenance. In the event that Owner breaches
any of the covenants contained in Section 6.2, and such default continues for a period of thirty
(30) days after written notice from City (with respect to graffiti, debris, and waste material) or
thirty (30) days after written notice from City (with respect to landscaping, building
improvements and general maintenance), then City, in addition to any other remedy it may have
under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter
upon the Property and perform all acts and work necessary to protect, maintain, and preserve the
improvements and the landscaped areas on the Property.
6.2.2 Costs. All costs expended by City in connection with the foregoing
Section 6.2.1, shall be paid by Owner to City upon demand. All such sums remaining unpaid
thirty (30) days following delivery of City’s invoice therefor shall bear interest at the lesser of 8%
per annum or the highest rate permitted by applicable law. Notwithstanding anything to the
contrary set forth in this Section, City agrees that it will provide Owner with not less than thirty
(30) days’ written notice prior to undertaking any work for which Owner will incur a financial
obligation.
6.3 Marketing and Management Plan. Within 180 days following the Effective
Date of this Agreement, Owner shall submit for City review and approval, a plan for marketing
and managing the Property ("Marketing and Management Plan" or “Plan”). The Marketing and
Management Plan shall address in detail how Owner plans to market the Units to prospective
Extremely Low, Very Low and Lower Income Households in accordance with fair housing laws
and this Agreement, Owner’s Resident selection criteria, and how Owner plans to certify the
eligibility of Residents. The Plan will also set forth the manner in which Owner will encourage or
incentivize (including financial incentives, to the extent allowed by TCAC regulations) Residents
who no longer qualify as Lower Income Households to transition to market rate housing
opportunities within the City. The Plan shall also describe the management team and shall address
how the Owner and the management entity plan to manage and maintain the Property and the
Project. The Plan shall include the proposed management agreement and the form of rental
agreement that Owner proposes to enter into with Residents. Owner shall abide by the terms of
the Marketing and Management Plan in marketing, managing, and maintaining the Property and
the Project, and throughout the term of this Agreement.
6.4 Approval of Amendments. If City has not responded to any submission of the
Marketing and Management Plan, the proposed management entity, or a proposed amendment or
change to any of the foregoing within sixty (60) days following City’s receipt of such plan,
proposal or amendment, the plan, proposal or amendment shall be deemed approved by City.
6.5 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all fees,
assessments, taxes, charges, liens and levies applicable to the Property or the Project, including
without limitation possessory interest taxes, if applicable, imposed by any public entity, and shall
pay such charges prior to delinquency. However, Owner shall not be required to pay any such
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charge so long as (a) Owner is contesting such charge in good faith and by appropriate
proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on
final determination of the proceeding or contest, Owner immediately pays or discharges any
decision or judgment rendered against it, together with all costs, charges and interest. Nothing in
this Section is intended to prohibit Owner from applying for any exemption from property taxes
and fees that may be available to the owners of low-income housing.
6.6 Insurance Coverage. Throughout the term of this Agreement Owner shall comply
with the insurance requirements set forth in Exhibit B.
6.7 Property Damage or Destruction. If any part of the Project is damaged or
destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent
restriction requirements set forth in this Agreement. Such work shall be commenced as soon
as reasonably practicable after the damage or loss occurs and shall be completed within one
year thereafter or as soon as reasonably practicable, provided that insurance proceeds are
available to be applied to such repairs or restoration within such period and the repair or
restoration is financially feasible. During such time that lenders or low-income housing tax
credit investors providing financing for the Project impose requirements that differ from the
requirements of this Section the requirements of such lenders and investors shall prevail.
7. Recordation; Subordination. This Agreement shall be recorded in the Official Records of
San Mateo County concurrently with Owner's acquisition of the Property. Notwithstanding the
foregoing, the City agrees the City will not withhold consent to reasonable requests for
subordination of this Agreement to deeds of trust provided for the benefit of lenders providing
financing for the acquisition, development or rehabilitation of the Project (and their successors
and assigns), provided that the instruments effecting such subordination include reasonable
protections to the City in the event of default, including without limitation, extended notice and
cure rights.
Owner shall reimburse City for all City costs, including but not limited to reasonable attorneys’
fees, incurred in reviewing instruments and other legal documents proposed to effect a
subordination under this Agreement within ten (10) days following City’s delivery of an invoice
detailing such costs.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. Upon issuance of a final certificate of
occupancy for the Project, or any portion thereof, Owner may, upon approval by the City which
approval shall not be unreasonably withheld, transfer or assign all or any portion of its interests,
rights or obligations in the Property, or under this Agreement, to any third party, and, as this
Agreement “runs with the land” this Agreement shall be binding on Owner’s successors and
assigns for the full term of this Agreement.
Prior to issuance of a final certificate of occupancy for the Project, or any portion thereof, Owner
may transfer or assign all or any portion of its interest, right or obligations in the Property to an
affiliate of Owner, as set forth in the Development Agreement.
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Consent to any proposed transfer may be given by the City’s City Manager unless the
City Manager, in his or her discretion, refers the matter of approval to the City’s governing
board. If a proposed transfer has not been approved by City in writing within thirty (30) days
following City’s receipt of written request by Owner, it shall be deemed rejected.
Owner shall reimburse City for all City costs, including but not limited to reasonable
attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to effect a
transfer under this Agreement and in reviewing the qualifications and financial resources of a
proposed successor, assignee, or transferee within ten (10) days following City’s delivery of an
invoice detailing such costs.
The Parties contemplate that Owner will assign its rights under this Agreement or its
interests, rights, or obligations in the Property or under this Agreement, to a tax credit limited
partnership that is an affiliate of Owner. Notwithstanding anything to the contrary herein, a
transfer by the investor limited partner of its limited partner interest in the affiliate, or the
exercise by the investor limited partner of its remedies against Owner for breach of the
partnership agreement, including removal of Owner as a general partner, shall not constitute an
assignment of Owner's interests, rights, or obligations in the Property or under this Agreement
that would require City approval.
8.2 Encumbrances. Owner agrees to use best efforts to ensure that all deeds of trust
or other security instruments and any applicable subordination agreement recorded against the
Property, the Project or part thereof for the benefit of a lender (“Lender”) shall contain each of
the following provisions: (i) Lender shall use its best efforts to provide to City a copy of any
notice of default issued to Owner concurrently with provision of such notice to Owner; and,
(ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner
within the same period of time provided to Owner for such cure extended by an additional 90
days. Owner agrees to provide to City a copy of any notice of default Owner receives from any
Lender within thirty (30) business days following Owner’s receipt thereof.
8.3 Mortgagee Protection. No violation of any provision contained herein shall defeat
or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon
all or any portion of the Project or the Property, and the purchaser at any trustee’s sale or
foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the
acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this
Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining
that a violation of this Agreement has occurred, City shall give written notice to the holders of
record of any mortgages or deeds of trust encumbering the Project or the Property that such
violation has occurred.
9. Default and Remedies.
9.1 Events of Default. The occurrence of any one or more of the following events
shall constitute an event of default hereunder ("Event of Default"):
(a) The occurrence of a transfer in violation of Section 8.1 hereof;
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(b) Owner’s failure to maintain insurance on the Property and the Project as
required hereunder, and the failure of Owner to cure such default within thirty (30) days of
written notice from City;
(c) Subject to Owner’s right to contest the following charges, Owner’s failure
to pay taxes or assessments due on the Property or the Project or failure to pay any other charge
that may result in a lien on the Property or the Project, and Owner’s failure to cure such default
within sixty (6 0) days of delinquency;
(d) A default arises under any loan secured by a mortgage, deed of trust or
other security instrument recorded against the Property and remains uncured beyond any
applicable cure period such that the holder of such security instrument has the right to accelerate
repayment of such loan;
(e) Owner’s default in the performance of any material term, provision or
covenant under this Agreement (other than an obligation enumerated in this Subsection 9.1) or
the Assignment and Assumption Agreement as defined in Section 1, and unless such provision
specifies a shorter cure period for such default, the continuation of such default for thirty (30)
days in the event of a monetary default or sixty (60) days in the event of a non-monetary default
following the date upon which City shall have given written notice of the default to Owner, or if
the nature of any such non-monetary default is such that it cannot be cured within 60 days,
Owner’s failure to commence to cure the default within sixty (60) days and thereafter prosecute
the curing of such default with due diligence and in good faith.
9.2 Remedies. Upon the occurrence of an Event of Default and its continuation
beyond any applicable cure period, City may proceed with any of the following remedies:
A. Bring an action for equitable relief seeking the specific performance of the terms
and conditions of this Agreement, and/or enjoining, abating, or preventing any
violation of such terms and conditions, and/or seeking declaratory relief;
B. Pursue any other remedy allowed at law or in equity.
Each of the remedies provided herein is cumulative and not exclusive. The City may
exercise from time to time any rights and remedies available to it under applicable law or in
equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this
Agreement.
10. Indemnity. To the fullest extent permitted by law, Owner shall indemnify, defend (with
counsel approved by City) and hold City and its respective elected and appointed officers,
officials, employees, agents, and representatives (collectively, the “Indemnitees”) harmless
from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and
costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty,
deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) arising directly
or indirectly, in whole or in part, as a result of or in connection with Owner’s construction,
management, or operation of the Property and the Project or any failure to perform any
obligation as and when required by this Agreement. Owner’s indemnification obligations under
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this Section 10 shall not extend to Claims resulting solely from the gross negligence or willful
misconduct of Indemnitees. The provisions of this Section 10 shall survive the expiration or
earlier termination of this Agreement. It is further agreed that City does not and shall not waive
any rights against Owner that it may have by reason of this indemnity and hold harmless
agreement because of the acceptance by, or the deposit with City by Owner, of any of the
insurance policies described in this Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a written
instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must
be in writing. No waiver shall be implied from any delay or failure by City to take action on
any breach or default hereunder or to pursue any remedy allowed under this Agreement or
applicable law. No failure or delay by City at any time to require strict performance by Owner of
any provision of this Agreement or to exercise any election contained herein or any right, power
or remedy hereunder shall be construed as a waiver of any other provision or any succeeding
breach of the same or any other provision hereof or a relinquishment for the future of such
election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to
this Agreement shall 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 Party in accordance with this Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice shall
be deemed delivered upon receipt if delivery is confirmed by a return receipt; or
(iii) 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.
If to City, to: City of South San Francisco
400 Grand Avenue
Attn: City Manager
South San Francisco, CA 94080
Phone: (650) 877-8500
Email: [email protected]
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With a Copy to: City of South San Francisco
400 Grand Avenue
Attn: ECD Director
South San Francisco, CA 94080
Phone: (650) 829-6622
Email: [email protected]
With a Copy to: Meyers Nave
Attn: Sky Woodruff, City Attorney
555 12th Street, Suite 1500
Oakland, CA 94607
Tel (510) 808-2000
Fax (510) 444-1108
Email [email protected]
If to Owner: [Insert]
11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the
other such other documents and instruments, and take such other actions, as either shall
reasonably request as may be necessary to carry out the intent of this Agreement.
11.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
11.6 Action by the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or permitted
under this Agreement, such action shall be in writing, and such action may be given, made or
taken by the City Manager or by any person who shall have been designated by the City
Manager, without further approval by the governing board of the City at the discretion of the
City Manager.
11.7 Non-Liability of City Officials, Employees and Agents. No member, official,
employee or agent of the City shall be personally liable to Owner or any successor in interest, in
the event of any default or breach by the City, or for any amount of money which may become
due to Owner or its successor or for any obligation of City under this Agreement.
11.8 Headings; Construction. The headings of the sections and paragraphs of this
Agreement are for convenience only and shall not be used to interpret this Agreement. The
language of this Agreement shall be construed as a whole according to its fair meaning and not
strictly for or against any Party.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with the laws
of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to
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interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all
reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of
the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement contains the entire agreement of
Parties with respect to the subject matter hereof and supersedes all prior oral or written
agreements between the Parties with respect thereto. Exhibit A and Exhibit B, attached hereto
are incorporated herein by this reference.
11.14 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, the Parties have executed this Affordable Housing
Regulatory Agreement and Declaration of Restrictive Covenants as of the date first written
above.
CITY
THE CITY OF SOUTH SAN FRANCISCO,
a municipal corporation
By: __________________________________
Name:_Mike Futrell
Title: City Manager
ATTEST:
By: _________________________________
Rosa Govea Acosta, City Clerk
APPROVED AS TO FORM:
By: _________________________________
Sky Woodruff, City Attorney
OWNER
By: ______________________________
Its: _______________________________
SIGNATURES MUST BE NOTARIZED.
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STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO )
On , 20__, before me, ______________________, (here insert name and title
of the officer), personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
STATE OF CALIFORNIA )
)
COUNTY OF SAN MATEO )
On , 20__, before me, ______________________, (here insert name and title
of the officer), personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
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Exhibit A
[Insert Property Legal Description]
3426169.1