HomeMy WebLinkAboutReso 12-2020 (20-08)City of South San Francisco
P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 12-2020
File Number: 20-08 Enactment Number: RES 12-2020
RESOLUTION APPROVING A PURCHASE AND SALE
AGREEMENT WITH BADEN DEVELOPMENTS LLC FOR THE
SALE OF 432 BADEN AVENUE FOR $1,100,000 AND
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT.
WHEREAS, on June 29, 2011, the Legislature of the State of California ("State") adopted Assembly Bill
xl 26 ("AB 26"), which amended provisions of the State's Community Redevelopment Law (Health and
Safety Code sections 33000 et seq.) ("Dissolution Law"), pursuant to which the former Redevelopment
Agency of the City of South San Francisco ("City") was dissolved on February 1, 2012; and
WHEREAS, the City elected to become the Successor Agency to the Redevelopment Agency of the City
of South San Francisco ("Successor Agency"); and
WHEREAS, pursuant to Health and Safety Code Section 34191.5(c)(2)(C), property shall not be
transferred to a successor agency, city, county or city and county, unless a Long Range Property
Management Plan ("LRPMP") has been approved by the Oversight Board and the California Department
of Finance ("DOF"); and
WHEREAS, in accordance with the Dissolution Law, the Successor Agency prepared a LRPMP, which
was approved by a resolution of the Oversight Board for the Successor Agency to the Redevelopment
Agency of the City of South San Francisco ("Oversight Board") on May 21, 2015, and was approved by
the DOF on October 1, 2015; and
WHEREAS, consistent with the Dissolution Law and the LRPMP, certain real properties located in the
City of South San Francisco, that were previously owned by the former Redevelopment Agency, were
transferred to the Successor Agency ("Agency Properties"); and
WHEREAS, on October 18, 2016, the City entered into an Amended and Restated Master Agreement for
Taxing Entity Compensation ("Compensation Agreement") with the various local agencies who receive
shares of property tax revenues from the former redevelopment project area ("Taxing Entities"), which
provides that upon approval by the Oversight Board of the sale price, and consistent with the LRPMP,
the proceeds from the sale of any of the Agency Properties will be distributed to the Taxing Entities in
accordance with their proportionate contributions to the Real Property Tax Trust Fund for the former
Redevelopment Agency; and
WHEREAS, the former Redevelopment Agency purchased the Property in 1997; and,
WHEREAS, the LRPMP, prepared by the Successor Agency and approved by the Oversight Board for
City of South San Francisco Page 1
File Number: 20-08
Enactment Number. RES 12-2020
the Successor Agency to the Redevelopment Agency of the City of South San Francisco ("Oversight
Board"), designated 432 Baden Avenue, County Assessor's Parcel Number 012-321-160 ("Property"), to
be sold, with the proceeds of the sale distributed to the taxing entities; and,
WHEREAS, consistent with the LRPMP and the Oversight Board resolution, the Successor Agency
executed and recorded a grant deed on May 16, 2017, transferring the Agency Properties, including the
Property to the City; and,
WHEREAS, the LRPMP designated the site in the `For Sale' disposition category; and,
WHEREAS, Baden Developments LLC ("Developer") own the adjacent property, 428 Baden Avenue;
and,
WHEREAS, during the entitlement process for 428 Baden Avenue, Developer approached the City with
a price offer and a proposal to assemble the site with a larger project with housing units and better
design; and,
WHEREAS, on September 23, 2019, Developer provided the City with a Letter of Intent ("LOI") for the
purchase of the Property; and,
WHEREAS, typically the City would undergo a competitive bid process for the sale of a property but it
was determined that this sole offer from Developer would render the highest and best use of both
properties, and consistent with the LRPMP; and,
WHEREAS, on October 9, 2019, the City Council considered the LOI and agreed that the site had a far
greater value if assembled with 428 Baden rather than disposing of it as a stand-alone site and
provisionally accepted the offer price of $1,100,000, subject to an appraisal; and,
WHEREAS, staff commissioned an appraisal by Colliers International Valuation and Advisory Services
("Appraiser") which valued the property at $1,020,000; and,
WHEREAS, Developer submitted a Planning application that assembles the two sites for the
construction of 36 residential units; and,
WHEREAS, this infill housing project utilizes the State Density Bonus and provides three BMR units at
the Very Low -Income level; and,
WHEREAS, there is no cost to the General Fund for the sale of this property; and,
WHEREAS, the City's share of the sale proceeds are 16.7% or $183,700; and,
WHEREAS, pursuant to redevelopment law and the Compensation Agreement, final approval of the sale
price of the Property must be approved by the Oversight Board to the Successor Agency of South San
Francisco; and
City of South San Francisco Page 2
File Number. 20-08
Enactment Number. RES 12-2020
WHEREAS, the City and the Developer now wish to enter into a Purchase and Sale Agreement for the
Property, attached hereto and incorporated herein as Exhibit A; and
WHEREAS, the proposed construction of 36 residential units at 428 and 432 Baden Avenue is an infill
housing project given its size and location, and will be subject to further environmental review and
determination pursuant the California Environmental Quality Act, Pub. Resources Code §21000, et seq.
("CEQA") as a part of the planning entitlements approval process; and,
WHEREAS, on January 16, 2020, at its regular meeting, the Planning Commission determined that the
sale of the Property at 432 Baden Avenue was consistent with the South San Francisco General Plan.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San Francisco does
hereby resolve as follows:
1. The foregoing recitals are true and correct and made a part of this Resolution.
2. Subject to approval by the Oversight Board of the final sale price, a Purchase and Sale Agreement
with Baden Developments LLC in substantially the same form attached hereto as Exhibit A, for the
disposition of 432 Baden Avenue (APN 012-321-160) for $1,100,000, is hereby approved.
3. The City Manager is hereby authorized to enter into and execute on behalf of the City Council the
Purchase and Sale Agreement, in substantially the same form attached hereto as Exhibit A; 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 of the final
sale price.
4. The City Manager is hereby authorized to execute any other necessary documents related to the sale
of the Property, and to take any and all other actions necessary to implement this intent of this
Resolution, subject to approval as to form by the City Attorney.
Exhibit A: Purchase and Sale Agreement for 432 Baden Avenue.
At a meeting of the City Council on 1/22/2020, a motion was made by Vice Mayor Addiego, seconded by
Councilmember Nagales, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember
Nicolas, and Councilmember Matsumoto
Attest by �dm ZVtX dolaL
sa Govea Acosta, City Clerk
City of South San Francisco Page 3
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (“this Agreement”) is entered into as of ________________, 2020 (the
“Effective Date”), by and between the City of South San Francisco, a municipal corporation,
(“Seller”) and Baden Development, LLC, a California limited liability company (“Buyer”). Seller
and Buyer are collectively referred to herein as the “Parties.”
RECITALS
A. Seller is owner of certain real property with an address of 432 Baden Avenue, South
San Francisco, California, also known as San Mateo County Assessor’s Parcel Numbers 012-321-
160 and as more particularly described in Exhibit A attached hereto and incorporated herein
(“Property”).
B. The former Redevelopment Agency of the City of South San Francisco (“RDA”)
purchased the Property on April 16, 1997.
C. On, June 29, 2011 the legislature of the State of California (the “State”) adopted
Assembly Bill x1 26 (“AB 26”), which amended provisions of the Redevelopment Law, and the
California Supreme Court decision in California Redevelopment Association, et al. v. Ana
Matosantos, et al., upheld AB 26 (together with AB 1484, the “Dissolution Law”), and the RDA
was dissolved on February 1, 2012.
D. Pursuant to the Dissolution Law, the South San Francisco Successor Agency
(“Agency”) prepared a Long Range Property Management Plan (“LRPMP”), which was approved
by a resolution of the Oversight Board for the Successor Agency to the Redevelopment Agency of
the City of South San Francisco (“Oversight Board”) on November 19, 2013, and on May 21,
2015, the Oversight Board approved the Amended Long Range Property Management Plan
(“LRPMP”), which was approved by the California Department of Finance (“DOF”) on October
1, 2015.
E. Pursuant to the LRPMP and Dissolution Law, the Agency’s transfer of real property
assets to the City for disposition consistent with the LRPMP is subject to entering into a Master
Agreement for Taxing Entity Compensation by all Taxing Entities.
F. The City and Taxing Entities entered into an Amended and Restated Master
Agreement for Taxing Entity Compensation, dated October 18, 2016 (“Master Compensation
Agreement”), which governs the distribution of any net proceeds received from the sale of the
Property, as defined herein.
G. The Property was transferred from the Agency to the City pursuant to a grant deed
recorded on May 16, 2017.
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H. Buyer agrees to purchase the Property, and Seller agrees to sell the Property to
Buyer, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged by the parties, Seller and Buyer hereby agree as follows:
1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set
forth above and the Exhibits attached to this Agreement are each incorporated into the body of this
Agreement as if set forth in full.
2. PURCHASE AND SALE.
2.1 Agreement to Buy and Sell. Subject to the terms and conditions set
forth herein, Seller agrees to sell the Property to Buyer, and Buyer hereby agrees to acquire the
Property from Seller.
2.2 Purchase Price. The purchase price for the Property to be paid by
Buyer to Seller (the “Purchase Price”) is one million one hundred thousand dollars
($1,100,000.00). The Purchase Price shall be paid in cash at the Closing to the Seller.
3. ESCROW.
3.1 Escrow Account. Seller has opened an interest-bearing escrow account
(the “Escrow”) maintained by North American Title Company in San Mateo (the “Escrow
Holder”), with interest accruing to the benefit of Buyer. Escrow Holder shall perform all escrow
and title services in connection with this Agreement.
3.2 Opening of Escrow. Within seven (7) business days after the Effective
Date, the Parties will deposit into Escrow the fully executed Agreement, or executed counterparts
thereto. The date that is the later of the following to occur shall be deemed the “Opening of
Escrow”:
(a) the date that such fully executed Agreement is received by Escrow
Holder.
(b) the date that Buyer submits Developer’s Financing Plan (as defined
in Section 5.2(e) below) to Seller for review.
(c) the date that Buyer submits an application for building permits to
develop the Property to Seller for review.
3.3 Buyer’s Deposit. Within three (3) business days after the Effective Date,
Buyer shall deposit thirty thousand dollars ($30,000.00) with Seller, to be held in trust pursuant to
this Agreement (“Initial Deposit”). Within three (3) business days after the Opening of Escrow,
Seller shall deposit the Initial Deposit into Escrow with Escrow Holder on behalf of Buyer. If
Buyer issues an Approval Notice (as defined in Section 3.4 below), Buyer shall deposit an
additional seventy thousand dollars ($70,000.00) in Escrow (the “Additional Deposit”). The
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Initial Deposit and Additional Deposit are sometimes collectively referred to herein as the
“Deposits.” The Deposits shall be applied toward the Purchase Price in the event of Closing.
3.4 Satisfaction of Due Diligence Contingency. Buyer shall have the right, in
its sole discretion, to terminate this Agreement for any reason prior to the expiration of the Due
Diligence Contingency Period (as defined in Section 5(a) below) by providing written notice
thereof and to receive a refund of the Deposits. Buyer hereby agrees to provide written notice to
Seller prior to the expiration of the Due Diligence Contingency Period if Buyer approves all due
diligence items (“Approval Notice”). If Buyer provides a termination notice to Seller before
11:59 p.m. on the last day of the Due Diligence Contingency Period, this Agreement shall
terminate, and all amounts deposited by Buyer into escrow (except the Independent
Consideration), together with interest thereon, if any, will be returned to Buyer, and neither party
shall have any further rights or obligations hereunder except those which expressly survive the
termination hereof. If Buyer fails to deliver the Approval Notice to Seller prior to 11:59 p.m. on
the last day of the Due Diligence Contingency Period, it will be conclusively presumed that Buyer
has disapproved all such items, matters or documents, and this Agreement shall terminate and the
Deposits shall be refunded to Buyer.
3.5 Independent Consideration. As independent consideration for Seller’s
entering into this Agreement to sell the Property to Buyer, Buyer shall deliver the sum of one
hundred dollars ($100.00) to Seller through Escrow (“Independent Consideration”). In the event
that Buyer terminates this Agreement in accordance with Section 3.4 above, Seller shall retain the
Independent Consideration; in the event that Buyer does not terminate this Agreement as aforesaid,
the Independent Consideration shall be applied to the Purchase Price at Closing.
4. PROPERTY DISCLOSURE REQUIREMENTS.
4.1 Condition of Title/Preliminary Title Report. Escrow Holder shall deliver
a Preliminary Title Report for the Property (the “Preliminary Report”) to Buyer within three (3)
days after the Effective Date. Buyer shall have until the end of the Due Diligence Contingency
Period to approve the condition of title to the Property. If Buyer delivers the Approval Notice,
Buyer agrees to take title to the Property subject to the following “Permitted Exceptions”:
(a) standard printed exceptions in the Preliminary Report; (b) general and special real property
taxes and assessments constituting a lien not yet due and payable; and (c) the Schedule B
exceptions to the title referenced in the Approval Notice. In no event shall any monetary liens be
deemed a Permitted Exception. Buyer shall provide any objections to the condition of title to
Seller in writing prior to the Due Diligence Contingency Period.
4.2 Environmental Condition of Property. Seller has provided Buyer with all
documents reasonably known to Seller pertaining to the environmental condition of the Property.
At Closing, the Buyer agrees to take title of the Property in AS- IS WHERE-IS condition with no
environmental remediation work required by or indemnities from the Seller or the Agency. Seller,
at Buyer’s expense, agrees to cooperate with Buyer to obtain regulatory approval of any necessary
environmental work for the Property. Buyer explicitly acknowledges that Buyer will be
responsible to manage and complete any remediation work for the Property after Closing. After
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Closing, Seller shall have no further obligations with respect to environmental and/or natural
hazards remediation costs.
4.3 Environmental and Natural Hazards Disclosure. California 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.
Pursuant to Section 4.2, Seller agrees to make any necessary disclosures required by law.
5. CLOSING AND PAYMENT OF PURCHASE PRICE.
5.1 Closing. The closing (the “Closing” or “Close of Escrow”) will occur no
later than one hundred eighty (180) calendar days after the Effective Date (“Closing Date”) or
such other date that the Parties agree in writing.
5.2 Buyer’s Conditions to Closing. Buyer's obligation to purchase the Property
is subject to the satisfaction of all of the following conditions or Buyer's written waiver thereof (in
Buyer’s sole discretion) on or before the Closing Date:
(a) Buyer has approved the condition of the Property. Buyer will have
sixty (60) calendar days from the Effective Date (the “Due Diligence Contingency Period”) to
complete physical inspections of the Property and due diligence related to the purchase of the
Property. Seller shall provide to Buyer copies of all reasonably available and known documents
relating to the ownership and operation of the Property, including but not limited to plans, permits
and reports (environmental, structural, mechanical, engineering and land surveys) that Seller has
in its possession not later than two (2) business days following the execution and delivery of this
Agreement. All physical inspections must be coordinated with Seller’s representative. Buyer
hereby agrees to indemnify and hold Seller harmless for any damage to the Property caused (but
not merely revealed) by Buyer’s inspections.
(b) Seller has performed all obligations to be performed by Seller
pursuant to this Agreement.
(c) Seller’s representations and warranties herein are true and correct in
all material respects as of the Closing Date.
(d) The Title Company is irrevocably committed to issue an ALTA
standard coverage title insurance policy to Buyer, effective as of the Closing Date, insuring title to
Buyer in the full amount of the Purchase Price.
(e) Seller shall have approved Buyer’s financing plan for the
development of the Property, which shall include a proforma reasonably acceptable to Seller and
proof of construction loan necessary to reasonably complete the development of the Property (the
“Developer’s Financing Plan”).
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(f) Seller shall have approved the construction contract for Buyer’s
development of the Property (the “Construction Contract”).
(g) Seller shall have approved the merger of the Property with the
adjacent lot located at 428 Baden Avenue, South San Francisco, California (the “Adjacent Lot”).
(h) Buyer and Seller shall have executed an Affordable Housing
Agreement ( “AHA”) for the Property on commercially reasonable terms and which shall include
the following provisions: (1) Below Market Rate units shall be constructed by Buyer to meet or
exceed South San Francisco Municipal Code Chapter 20.380 requirements; (2) Seller shall approve
any proposed assignment of the AHA or disposition of the Property prior to completion of the
development of the Property, and Seller’s approval of the same, shall not be unreasonably withheld
or delayed, it being acknowledged that the City Council would need to review and approve of any
such proposed assignment.
5.3 Seller’s Conditions to Closing. The Close of Escrow and Seller’s obligation
to sell and convey the Property to Buyer are subject to the satisfaction of the following conditions
or Seller’s written waiver (in Seller’s sole discretion) of such conditions on or before the Closing
Date:
(a) Buyer shall have submitted Developer’s Financing Plan to Seller for
approval.
(b) Buyer shall have obtained Seller’s approval of a Construction
Contract for development of the Property by Buyer.
(c) Buyer shall have taken all necessary actions for the issuance of
building permits from Seller necessary to enable to development of the Property.
(d) Buyer shall have taken all necessary actions to obtain the approval
of the merger of the Property with the Adjacent Lot and such approval shall be ready to be recorded
promptly following the Closing.
(e) Buyer has performed all obligations to be performed by Buyer
pursuant to this Agreement before Closing Date.
(f) Buyer's representations and warranties set forth herein are true and
correct in all material respects as of the Closing Date.
5.4 Conveyance of Title. Seller will deliver marketable fee simple title to Buyer
at the Closing, subject only to the Permitted Exceptions. The Property will be conveyed by Seller
to Buyer in an “as is” condition, with no warranty, express or implied, by Seller as to the physical
condition including, but not limited to, the soil, its geology, or the presence of known or unknown
faults or Hazardous Materials or hazardous waste (as defined by Section 12); provided, however,
that the foregoing shall not relieve Seller from disclosure of any such conditions of which Seller
has actual knowledge.
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5.5 Deliveries at Closing.
(a) Deliveries by Seller. Seller shall deposit into the Escrow for
delivery to Buyer at Closing: (i) a grant deed, substantially in the form attached hereto as Exhibit
B (“Grant Deed”); (ii) an affidavit or qualifying statement which satisfies the requirements of
paragraph 1445 of the Internal Revenue Code of 1986, as amended, any regulations thereunder
(the “Non-Foreign Affidavit”); (iii) a California Franchise Tax Board form 590 (the “California
Certificate”) to satisfy the requirements of California Revenue and Taxation Code Section
18805(b) and 26131.
(b) Deliveries by Buyer. No less than one (1) business day prior to the
close of escrow, Buyer shall deposit into escrow immediately available funds in the amount, which
together with the Independent Consideration and the Deposits is equal to: (i) the Purchase Price as
adjusted by any prorations between the Parties; (ii) the escrow fees and recording fees; and (iii) the
cost of the Title Policy.
(c) Closing. Upon Closing, Escrow Holder shall: (i) record the Grant
Deed; (ii) disburse to Seller the Purchase Price, less Seller’s share of any escrow fees, costs and
expenses; (iii) deliver to Buyer the Non-Foreign Affidavit, the California Certificate and the
original recorded Grant Deed; (iv) pay any commissions and other expenses payable through
escrow; and (vi) distribute to itself the payment of escrow fees and expenses required hereunder.
(d) Closing Costs. Buyer will pay all escrow fees (including the costs
of preparing documents and instruments), and recording fees. Buyer will also pay title insurance
and title report costs. Seller will pay all transfer taxes and governmental conveyance fees, where
applicable.
(e) Pro-Rations. At the close of escrow, the Escrow Agent shall make
the following prorations: (i) property taxes will be prorated as of the close of escrow based upon
the most recent tax bill available, including any property taxes which may be assessed after the
close of escrow but which pertain to the period prior to the transfer of title to the Property to Buyer,
regardless of when or to whom notice thereof is delivered; and (ii) any bond or assessment that
constitutes a lien on the Property at the close of escrow will be assumed by Buyer. Seller does not
pay ad valorem taxes.
5.6 Post-Closing Obligations. The following obligations shall survive the Close
of Escrow:
(a) Permits. Buyer shall take all necessary actions for construction
permits to be issued to Buyer for the development of the Property within ten (10) business days
following the Close of Escrow.
(b) Commence Work. Buyer shall commence work to develop the
Property within forty-five (45) days of the Close of Escrow.
(c) Lot Merger. Buyer shall record the merger of the Property with the
Adjacent Lot within ten (10) business days of the Close of Escrow.
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6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 Seller’s Representations, Warranties and Covenants. In addition to the
representations, warranties and covenants of Seller contained in other sections of this Agreement,
Seller hereby represents, warrants and covenants to Buyer that the statements below in this Section
6.1 are each true and correct as of the Closing Date provided however, if to Seller’s actual
knowledge any such statement becomes untrue prior to Closing, Seller will notify Buyer in writing
and Buyer will have three (3) business days thereafter to determine if Buyer wishes to proceed
with Closing or terminate this Agreement and receive a refund of the Deposits. If Buyer
determines it does not wish to proceed, then the terms of Section 3.4 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. This
Agreement has been duly executed by Seller, and upon delivery to and execution by Buyer is a
valid and binding agreement of Seller.
(b) Encumbrances. Seller has not alienated, encumbered, transferred,
mortgaged, assigned, pledged, or otherwise conveyed its interest in the Property or any portion
thereof, nor entered into any Agreement to do so, and there are no liens, encumbrances, mortgages,
covenants, conditions, reservations, restrictions, easements or other matters affecting the Property,
except as disclosed in the Preliminary Report. Seller will not, directly or indirectly, alienate,
encumber, transfer, mortgage, assign, pledge, or otherwise convey its interest prior to the Close of
Escrow, as long as this Agreement is in force.
(c) There are no agreements affecting the Property except those which
have been disclosed by Seller. There are no agreements which will be binding on the Buyer or the
Property after the Close of Escrow, which cannot be terminated on thirty (30) days prior written
notice.
(d) Conflicts and Pending Actions. There is no agreement to which
Seller is a party or, to Seller’s knowledge, binding on Seller, which is in conflict with this
Agreement. There is no action, suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding pending or, to Seller’s knowledge, threatened against the Property or
the transaction contemplated by this Agreement.
(f) Lease. There are no leases of space in the Property, subleases,
licenses, franchise agreements or other agreements to occupy or utilize all or any portion of the
Property that will be in force after the Closing. At Closing, Seller shall deliver the Property to
Buyer vacant of any occupants.
(g) Condemnation. No condemnation proceedings relating to the
Property are pending or, to Seller’s knowledge, threatened.
(h) Foreign Person; OFAC. Seller is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. Seller
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represents and warrants that (a) Seller and, to Seller’s actual knowledge, each person or entity
owning an interest in Seller is (i) not currently identified on the Specially Designated Nationals
and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the
Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any
authorizing statute, executive order or regulation (collectively, the “List”), and (ii) not a person or
entity with whom a citizen of the United States is prohibited to engage in transactions by any trade
embargo, economic sanction, or other prohibition of United States law, regulation, or Executive
Order of the President of the United States, and (iii) not an Embargoed Person (as hereinafter
defined), (b) to Seller’s actual knowledge, none of the funds or other assets of Seller constitute
property of, or are beneficially owned, directly or indirectly, by any Embargoed Person, and (c) to
Seller’s actual knowledge, no Embargoed Person has any interest of any nature whatsoever in
Seller (whether directly or indirectly). The term “Embargoed Person” means any person, entity or
government subject to trade restrictions under U.S. law, including but not limited to, the
International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the
Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated
thereunder.
(i) Compliance. Seller has not received any written notice from any
governmental authority that the Property is not in material compliance with all applicable laws and
regulations (including environmental and zoning laws and regulations), other than such violations
as have been fully cured. To Seller’s knowledge, neither Seller nor the Property are in default or
breach of any material obligation under any encumbrances, covenants or easement agreements
recorded against the Property.
(j) Hazardous Materials. Except as otherwise disclosed to Buyer by
Seller (including in any materials delivered or made available to Buyer), Seller has received no
written notice from any local, state or national governmental entity or agency of any asbestos, lead
or other Hazardous Materials existing or potentially existing with respect to the Property. As used
herein, “Hazardous Material” means any hazardous, toxic or dangerous waste, substance or
material, pollutant or contaminant, as defined for purposes of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended,
or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or
any other laws, or any substance which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous, or any substance which contains
gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls (PCBs), or radon
gas, urea formaldehyde, asbestos or lead.
(k) Purchase Options. There are no outstanding rights of first refusal,
rights of first offer, purchase options or similar purchase rights with respect to the Property.
(l) Management Agreements. There are no management agreements,
leasing agreements, brokerage agreements or similar agreements which affect the Property and
will survive Closing.
(m) Taxes. To Seller’s knowledge, there are no impositions of new
special assessments with respect to the Property.
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The truth and accuracy of each of the representations and warranties, and
the performance of all covenants of Seller contained in this Agreement are conditions precedent
to Buyer’s obligation to proceed with the Closing hereunder. The foregoing representations and
warranties shall survive the expiration, termination, or close of escrow of this Agreement and shall
not be deemed merged into the deed upon closing.
6.2 Buyer’s Representations and Warranties. In addition to the representations,
warranties and covenants of Buyer contained in other sections of this Agreement, Buyer hereby
represents, warrants and covenants to Seller that the statements below in this Section 6.2 are each
true as of the Effective Date, and, if to Buyer’s actual knowledge any such statement becomes
untrue prior to Closing, Buyer shall so notify Seller in writing and Seller shall have at least three
(3) business days thereafter to determine if Seller wishes to proceed with Closing.
(a) Buyer is a California 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) 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.
(c) Pending Actions. There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against Buyer which, if
adversely determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
(d) ERISA. Buyer is not acquiring the Property with the assets of an
employee benefit plan as defined in Section 3(3) of ERISA.
(e) Foreign Person; OFAC. Buyer is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended. Buyer and, to
Buyer’s actual knowledge, each person or entity owning an interest in Buyer is (i) not currently
identified on the Specially Designated Nationals and Blocked Persons List maintained by the
OFAC and/or on any other similar List, (ii) not a person or entity with whom a citizen of the United
States is prohibited to engage in transactions by any trade embargo, economic sanction, or other
prohibition of United States law, regulation, or Executive Order of the President of the United
States, and (iii) not an “Embargoed Person,” to Buyer’s actual knowledge, none of the funds or
other assets of Buyer constitute property of, or are beneficially owned, directly or indirectly, by
any Embargoed Person, and to Buyer’s actual knowledge, no Embargoed Person has any interest
of any nature whatsoever in Buyer (whether directly or indirectly).
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.
10
6.3 Property Sold, “AS IS”. Buyer specifically acknowledges that the Seller is
selling the Property on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis and that,
subject to Seller's representations, warranties, covenants and obligations set forth in this
Agreement, and all exhibits attached hereto and incorporated herein, and any obligations arising
under applicable law, and any document or instrument executed and delivered in connection with
Closing, Buyer is not relying on any representations or warranties of any kind whatsoever, express
or implied, from Seller, or its employees, appointed or elected officials, agents, or brokers as to
any matters concerning the Property. Subject to Seller's representations, warranties, covenants and
obligations set forth in this Agreement, and all exhibits attached hereto and incorporated herein,
and any obligations arising under applicable law, and any document or instrument executed and
delivered in connection with Closing, Seller makes no representations or warranties as to any
matters concerning the Property, including without limitation: (i) the quality, nature, adequacy
and physical condition of the Property, (ii) the quality, nature, adequacy, and physical condition
of soils, geology and any groundwater, (iii) the existence, quality, nature, adequacy and physical
condition of utilities serving the Property, (iv) the development potential of the Property, and the
Property's use, habitability, merchantability, or fitness, suitability, value or adequacy of the
property for any particular purpose, (v) except as otherwise provided in this Agreement, the zoning
or other legal status of the Property or any other public or private restrictions on use of the Property,
(vi) the compliance of the Property or its operation with any Environmental Laws, covenants,
conditions and restrictions of any governmental or quasi-governmental entity or of any other
person or entity, (vii) the presence or removal of Hazardous Materials, substances or wastes on,
under or about the Property or the adjoining or neighboring property; (viii) the quality of any labor
and materials used in any improvements on the Property, (ix) the condition of title to the Property,
(x) the leases, service contracts, or other agreements affecting the Property, or (xi) the economics
of the operation of the Property.
7. REMEDIES In the event of a breach or default under this Agreement by Seller, if
such breach or default occurs prior to Close of Escrow, Buyer reserves the right to either (a) seek
specific performance from Seller or (b) to do any of the following: (i) to waive the breach or
default and proceed to close as provided herein; (ii) to extend the time for performance and the
Closing Date until Seller is able to perform; or (iii) to terminate this Agreement upon written notice
to Seller, whereupon Seller shall cause Escrow Holder to return to Buyer any and all sums placed
into the Escrow by Buyer, and except for the rights and obligations expressly provided to survive
termination of this Agreement, neither party shall have any further obligations or liabilities
hereunder. IN THE EVENT OF A BREACH OR DEFAULT HEREUNDER BY BUYER AND
THE CLOSING DOES NOT OCCUR DUE TO SUCH DEFAULT, SELLER’S SOLE REMEDY
SHALL BE TO RETAIN THE DEPOSITS AS LIQUIDATED DAMAGES. THE PARTIES
AGREE THAT IN SUCH INSTANCE, THE DEPOSITS REPRESENT A REASONABLE
APPROXIMATION OF SELLER’S DAMAGES AND ARE NOT INTENDED AS A
FORFEITURE OR PENALTY BUT RATHER AN ENFORCEABLE LIQUIDATED
DAMAGES PROVISION PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671, ET
SEQ. IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO LOST PROFITS OR
CONSEQUENTIAL DAMAGES AS A RESULT OF THE OTHER PARTY’S BREACH OF
THIS AGREEMENT.
11
Buyer’s Initials Seller’s Initials
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 other than Victor Lo of Sierra Investments. Buyer shall indemnify, hold harmless and
defend Seller from any and all claims, actions and liability for any commission, finder’s fee, or
similar charges arising out of Buyer’s retention of Mr. Lo or any breach of the preceding sentence.
9. ASSIGNMENT. Absent an express signed written agreement between the Parties
to the contrary, neither Seller nor Buyer may assign its rights or delegate its duties under this
Agreement without the express written consent of the other. No permitted assignment of any of
the rights or obligations under this Agreement shall result in a novation or in any other way release
the assignor from its obligations under this Agreement. Buyer may not assign its rights under this
Agreement without first obtaining Seller’s written consent, which approval may be given or
withheld in Seller’s reasonable discretion. Seller’s approval of any assignment pursuant to this
Section 9 shall be contingent on the review and approval by the City Council of such proposed
assignment. Any transfer, directly or indirectly, of any stock, partnership interest or other
ownership interest in Buyer, for the sole purpose of transferring Buyer’s interest in this Agreement,
without Seller’s written approval, which approval may be given or withheld in Seller’s reasonable
discretion, shall constitute a default by Buyer under this Agreement; provided, however, that a
transfer of an ownership interest in Buyer to investors as reasonably necessary to raise funds for
the development of the Property will not be a default and will not require advanced consent of
Seller, so long as Victor Lo retains exclusive, day-to-day managerial control of Buyer at all times.
Without limitation of the foregoing, no assignment by Buyer shall relieve Buyer of any of its
obligations or liabilities pursuant to this Agreement. Notwithstanding the foregoing, without
having to obtain Seller’s approval, Buyer may assign its interest in this Agreement on or before
the Closing Date to an entity (a “Buyer Assignee”) that is (a) an entity of which Buyer has day-to-
day managerial control or (b) any joint venture entity in which Buyer maintains a majority
economic interest, or may (c) partially assign this Agreement for the purposes of enabling closing
as tenant-in-common with an otherwise joint venture partner of Buyer for the purposes of
consummating a tax deferred exchange, so long as Buyer and Buyer Assignee execute and deliver
an assignment and assumption agreement in form reasonably satisfactory to Seller, pursuant to
which Buyer Assignee remakes all of Buyer’s representation and warranties set forth in this
Agreement and the transferor shall not be released from the obligations of “Buyer” hereunder.
10. ENVIRONMENTAL INDEMNITY. To the fullest extent allowed by law, Buyer
agrees to unconditionally and fully indemnify, protect, defend (with counsel satisfactory to Seller),
and hold Seller, and its respective elected and appointed officers, officials, employees, agents,
consultants, contractors, and Agency harmless from and against any and all claims (including
without limitation third party claims for personal injury, real or personal property damage, or
damages to natural resources), actions, administrative proceedings (including without limitation
both formal and informal proceedings), judgments, damages, punitive damages, penalties, fines,
costs (including without limitation any and all costs relating to investigation, assessment, analysis
or clean-up of the Property), liabilities (including without limitation sums paid in settlements of
12
claims), interest, or losses, including reasonable attorneys’ and paralegals’ fees and expenses
(including without limitation any such fees and expenses incurred in enforcing this Agreement or
collecting any sums due hereunder), together with all other costs and expenses of any kind or
nature (collectively, the “Costs”) that arise directly or indirectly from or in connection with the
presence, suspected presence, release, or suspected release, of any Hazardous Materials in, on or
under the Property or in or into the air, soil, soil gas, groundwater, or surface water at, on, about,
around, above, under or within the Property, or any portion thereof, except those Costs that arise
solely as a result of actions by Seller, or Seller’s agents, employees, or contractors. The
indemnification provided pursuant to this Section shall specifically apply to and include claims or
actions brought by or on behalf of employees of Buyer or any of its predecessors in interest and
Buyer hereby expressly waives any immunity to which Buyer may otherwise be entitled under any
industrial or worker’s compensation laws. In the event the Seller suffers or incurs any Costs, Buyer
shall pay to Seller the total of all such Costs suffered or incurred by the Seller upon demand
therefore by Seller. The indemnification provided pursuant to this Section shall include, without
limitation, all loss or damage sustained by the Seller due to any Hazardous Materials: (a) that are
present or suspected by a governmental agency having jurisdiction to be present in the Property or
in the air, soil, soil gas, groundwater, or surface water at, on, about, above, under, or within the
Property (or any portion thereof) or to have emanated from the Property, or (b) that migrate, flow,
percolate, diffuse, or in any way move onto, into, or under the air, soil, soil gas, groundwater, or
surface water at, on, about, around, above, under, or within the Property (or any portion thereof)
after the date of this Agreement as a result of Seller’s or its predecessors’ activities on the Property,
or those of Seller’s agents, employees, or contractors. The provisions of this Section 10 shall
survive the termination of this Agreement and the Close of Escrow.
11. RELEASE BY BUYER. Effective upon the Close of Escrow, except with respect
to the representations and warranties of Seller under Section 6.1 of this Agreement, Buyer waives
releases, remises, acquits and forever discharges Seller, and its officers, directors, board members,
managers, employees and agents, and any other person acting on behalf of Seller, from any and all
claims, actions, causes of action, demands, rights, damages, costs, expenses and compensation
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Buyer now has
or which may arise in the future on account of or in any way arising from or in connection with
the physical condition of the Property or any law or regulation applicable thereto including,
without limiting the generality of the foregoing, any federal, state or local law, ordinance or
regulation pertaining to Hazardous Materials. This Section 11 shall survive the termination of this
Agreement and the Close of Escrow.
BUYER ACKNOWLEDGES THAT BUYER IS FAMILIAR WITH SECTION 1542 OF THE
CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
13
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)
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. § 1801 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
14
party shall be entitled to recover its reasonable attorneys’ fees and court costs (including the service
of process, filing fees, court and court reporter costs, investigative fees, expert witness fees, and
the costs of any bonds, whether taxable or not) and shall include the right to recover such fees and
costs incurred in any appeal or efforts to collect or otherwise enforce any judgment in its favor in
addition to any other remedy it may obtain or be awarded. Any judgment or final order issued in
any legal proceeding shall include reimbursement for all such attorneys’ fees and costs. In any
legal proceeding, the “prevailing party” shall mean the party determined by the court to most nearly
prevail and not necessarily the party in whose favor a judgment is rendered.
13.2 Interpretation. This Agreement has been negotiated at arm’s length and
each party has been represented by independent legal counsel in this transaction and this
Agreement has been reviewed and revised by counsel to each of the Parties. Accordingly, each
party hereby waives any benefit under any rule of law (including Section 1654 of the California
Civil Code) or legal decision that would require interpretation of any ambiguities in this
Agreement against the drafting party.
13.3 Survival. All indemnities, covenants, representations and warranties
contained in this Agreement shall survive Close of Escrow.
13.4 Successors. Except as provided to the contrary in this Agreement, this
Agreement shall be binding on and inure to the benefit of the Parties and their successors and
assigns.
13.5 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
13.6 Integrated Agreement; Modifications. This Agreement contains all the
agreements of the Parties concerning the subject hereof any cannot be amended or modified except
by a written instrument executed and delivered by the parties. There are no representations,
agreements, arrangements or understandings, either oral or written, between or among the parties
hereto relating to the subject matter of this Agreement that are not fully expressed herein. In
addition there are no representations, agreements, arrangements or understandings, either oral or
written, between or among the Parties upon which any party is relying upon in entering this
Agreement that are not fully expressed herein.
13.7 Severability. If any term or provision of this Agreement is determined to
be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable,
or invalid provisions or part thereof shall be stricken from this Agreement, any such provision
shall not be affected by the legality, enforceability, or validity of the remainder of this Agreement.
If any provision or part thereof of this Agreement is stricken in accordance with the provisions of
this Section, then the stricken provision shall be replaced, to the extent possible, with a legal,
enforceable and valid provision this is in keeping with the intent of the Parties as expressed herein.
13.8 Notices. Any delivery of this Agreement, notice, modification of this
Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval,
waiver, declaration or other communication that either party desires or is required to give to the
other party or any other person shall be in writing. Any such communication may be served
15
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, or by fax or electronic mail, in each case, sent to the intended
addressee at the address set forth below, or to such other address or to the attention of such other
person as the addressee shall have designated by written notice sent in accordance herewith, and
shall be deemed to have been given either at the time of first attempted delivery at the address and
in the manner provided herein, or, in the case of electronic mail for fax, as of the date of the
electronic mail or fax:
To Buyer: 311 9th Avenue
San Mateo, CA 94401
Attn: Mr. Victor Lo
Phone: 415-297-0709
Email: [email protected]
With Copy To: Schinner & Shain, LLP
96 Jessie Street
San Francisco, CA 94105
Attn: R. Ryan Shain, Esq.
Phone: 310-913-4582
Email: [email protected]
To Seller: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: City Manager, Mike Futrell
Email: [email protected]
Telephone No.: (650) 829 6620
Fax (650) 829-6609
With Copy To: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Project Manager, Julie Barnard
Email: [email protected]
Telephone No.: (650) 829 6629
With Copy To: Meyers Nave
555 12th Street, Suite 1500
Oakland, CA 94607
Attn: Sky Woodruff
Email: [email protected]
To Escrow Holder: Katie Berggren
North American Title Company
66 Bovet Rd, Suite 200
San Mateo, CA 94402
16
Phone: 650-343-6282
Email: [email protected]
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 11:59 p.m. on the next business day.
13.11 Reasonable Consent and Approval. Except as otherwise provided
in this Agreement, whenever a party is required or permitted to give its consent or approval under
this Agreement, such consent or approval shall not be unreasonably withheld or delayed. If a party
is required or permitted to give its consent or approval in its sole and absolute discretion or if such
consent or approval may be unreasonably withheld, such consent or approval may be unreasonably
withheld but shall not be unreasonably delayed.
13.12 Further Assurances. The Parties shall at their own cost and expense
execute and deliver such further documents and instruments and shall take such other actions as
may be reasonably required or appropriate to carry out the intent and purposes of this Agreement.
13.13 Waivers. Any waiver by any party shall be in writing and shall not
be construed as a continuing waiver. No waiver will be implied from any delay or failure to take
action on account of any default by any party. Consent by any party to any act or omission by
another party shall not be construed to be consent to any other subsequent act or omission or to
waive the requirement for consent to be obtained in any future or other instance.
13.14 Signatures/Counterparts. This Agreement may be executed by
electronic or facsimile signature. 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
17
hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding
on such party and enforceable in accordance with its terms.
13.17 Possession. At Closing, Seller shall deliver sole and exclusive
possession of the Property to Buyer.
13.18 Approvals. Whenever this Agreement calls for Seller approval,
consent, extension or waiver, the written approval, consent, or waiver of the Seller’s Executive
Director or his or her designee(s) shall constitute the approval, consent, extension or waiver of the
Seller, without further authorization required from the Seller’s Council. The Seller hereby
authorizes the City Manager and his or her designee(s) to deliver any such approvals, consents, or
extensions or waivers as are required by this Agreement, or that do not otherwise reduce Seller’s
rights under this Agreement, and to waive requirements under this Agreement, on behalf of the
Seller.
13.19 Merger, Survival. The provisions of this Agreement shall not merge
with the delivery of the Deed or any other instrument delivered at Closing, but shall, except as
otherwise provided in this Agreement, survive the Closing.
SIGNATURES ON FOLLOWING PAGE
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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
BUYER:
Baden Development, LLC,
a California limited liability company
By: _______________________________
Victor Lo
Title: Manager
APPROVED AS TO FORM:
By: _______________________________
Counsel for Buyer
19
LIST OF EXHIBITS
Exhibit A Legal Description
Exhibit B Grant Deed
Exhibit C Permitted Exceptions
Exhibit D Form of Affordable Housing Agreement
Exhibit E Form of Completion Guaranty
20
Exhibit A
LEGAL DESCRIPTION
That real property situated in the State of California, County of San Mateo, City of South Su.
Francisco, and described as Lot 8 in Block 117, as shown on that certain map entitled "SOUI'H
SAN FRANCISCO SAN MATEO CO. CAL PLAT. NO. 1”, filed in the office of the County
Recorder of San Mateo County, State of California, on March 1, 1892 in Book “B” of Maps at
page(s) 6, and a copy entered in Book 2 of Maps at Page 52.
AP. No.: 012-321-160 JPN 012 032 321 16 A
21
Exhibit B
GRANT DEED
Recording Requested By and
When Recorded Return To:
Attention:
APN: ___________________
(Space above this line for Recorder’s use)
GRANT DEED
THE UNDERSIGNED GRANTOR(s) DECLARE(s):
DOCUMENTARY TRANSFER TAX IS $__________________ computed on full value of
property conveyed, or computed on full value less value of liens or encumbrances remaining at
time of sale.
_______________________________
Signature of Declarant
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_______________________ _____________________________, a ____________________
(“Grantor”) hereby grants to _____________________________, a _________________
(“Grantee”), the real property located in the City of __________, County of __________, State
of __________, described on Exhibit A attached hereto and made a part hereof.
GRANTOR:
_______________________________, a _______________________________
By: _______________________________
Its: _______________________________
Date: _______________________________
22
[Exhibit A and notarial acknowledgement to be attached]
23
Exhibit C
PERMITTED EXCEPTIONS
24
Exhibit D
FORM OF AFFORDABLE HOUSING AGREEMENT
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.
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
for 432 Baden Avenue, South San Francisco
by and between
THE CITY OF SOUTH SAN FRANCISCO
and
BADEN DEVELOPMENT LLC
25
This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants
(this “Agreement”) is entered into effective as of _____________, 2020 (“Effective Date”) by
and between the City of South San Francisco, a municipal corporation (“City”) and
_______________________, a California corporation {INSERT NEW ENTITY IF
APPLICABLE AT CLOSING} (“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 at
432 Baden Avenue, known as San Mateo County Assessor’s Parcel Nos. 012-321-160 and more
particularly described in Exhibit A attached hereto (the “Property”).
B. In accordance with that certain Purchase and Sale Agreement executed by and
between the Parties and dated as of ____________ (the “PSA”), Owner will re-develop the
Property into a high-density, residential apartment building (the “Project”). Capitalized terms
used and not defined in this Agreement have the meaning ascribed to them in the PSA.
C. As a condition to its agreement to provide the City Grants, the City requires the
Property to be subject to the terms, conditions and restrictions set forth herein, specifically, the
City requires that for a period of not less than fifty-five (55) years, three (3) of the residential units
in the Project be rented at Affordable Rents to Eligible Households.
D. The Parties have agreed to enter into and record this Agreement in order to satisfy the
conditions described in the foregoing Recitals. The purpose of this Agreement is to regulate and
restrict the occupancy and rents of the Project’s Restricted Units for the benefit of the occupants of 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.
E. Chapter 20.380 of the South San Francisco Municipal Code sets forth the
requirements for Inclusionary Housing (“Inclusionary Housing Ordinance”)
F. The Developer is planning to construct thirty six (36) rental units on the Project
Property (the “Project”) and has submitted site development plan for the Project.
G.
H. The Developer is required by the Inclusionary Housing Ordinance to set aside ten
percent (10%) of new housing as low- and moderate-income level housing.
I. The Inclusionary Housing Ordinance requires the Developer’s plans and the City’s
conditions regarding inclusionary housing be set forth in an Affordable Housing Agreement.
J. This Affordable Housing Agreement is required as a condition of future discretionary
permits for development of the Project Property and shall be recorded against the Project Property;
K. 432 Baden is located in the Residential Core District and the Project allows for 30 The
Developer will utilize the State Density Bonus of 35% for the Project by providing 11.5%
26
of the units targeting Very Low Income households (“VLI”).
J. The base density for the Project’s 14,000 sf (0.32 acre) lot is 80 du/acre, which allows for
26 units. The 35% density bonus to the base allowable 26 units returns a yield of 36 units.
The project will provide 11.5% of the base density of 26 units or 3 units as VLI targeted.
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.
“Adjusted for Family Size Appropriate for the Unit” shall be determined consistent
with Section 50052.5(h) of the California Health and Safety Code and applicable federal rules (if
any) and as defined below:
Studio – 1 person
One Bedroom – 1.5 people
Two Bedroom – 3 people
Three Bedroom – 4.5 people
"Affordable Rent" means the following amounts, less a utility allowance and such other
adjustments as required pursuant to the California Redevelopment Law: (i) for units that are
restricted for rental to households with incomes of not more than eighty percent (80%) of AMI
(“80% Units”), a monthly rent that does not exceed one-twelfth (1/12) of thirty percent (30%) of
eighty percent (80%) of AMI, Adjusted for Family Size Appropriate for the Unit, and (ii) for units
that are restricted for rental to households with incomes of not more than one hundred twenty
percent (120%) of AMI (“120% Units”), a monthly rent that does not exceed one-twelfth of thirty
percent (30%) of one hundred twenty percent (120%) of Area Median Income, 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 the U.S. Department of
Housing and Urban Development (“HUD”) pursuant to Section 8 of the United States Housing
Act of 1937 and as published from time to time by the State of California Department of Housing
and Community Development (“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).
“Claims” is defined in Section 10.
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"Eligible Household" means a household for which gross household income does not
exceed the applicable maximum income level for a Restricted Unit as specified in Section 2.1 and
Exhibit B.
“Indemnitees” is defined in Section 10.
“Very Low-Income” means an annual gross household income that is less than or equal
to the qualifying limits for households of Very Low-Income adjusted for actual household size, as
determined periodically by HUD on the basis of gross annual household income and published by
HCD in the Regulations for San Mateo County. If HUD ceases to make such determination, "Very
Low-Income" shall be defined as not greater than 50% of Area Median Income adjusted for actual
household size, as published by HCD in the Regulations. If both HCD and HUD cease to make
such determinations, City in its reasonable discretion may designate another definition of "Very
Low-Income" used by any other federal or state agency so long as such definition is no more
restrictive than that set forth herein.
“Regulations” means Title 25 of the California Code of Regulations.
“Rent-Restricted” means a dwelling unit for which the gross rent charged for such
unit does not exceed the Affordable Rent, as adjusted for assumed household size in
accordance with the Department of Housing and Community Development (“HCD”)
guidelines.
"Restricted Unit" means a dwelling unit which is reserved for occupancy at an Affordable
Rent by a household of not more than a specified household income in accordance with and as set
forth in Sections 2.1 and 2.2 and Exhibit B.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its
successors and assigns, that the Property shall be used solely for the operation of a mixed-use,
multifamily rental housing development in compliance with the DA 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.
2.1.1 Property. For a term of fifty-five (55) years commencing upon the date of
issuance of a final certificate of occupancy for the Project, not less than three (3) of the residential
units of the Project shall be both Rent Restricted (as defined below) and occupied (or if vacant,
available for occupancy), available at Affordable Rents to Eligible Households with income no
greater than 50% of Area Median Income. The three (3) residential units are allocated across unit
type as specified in Exhibit B.
2.1.2 Recertification. In the event that recertification of Eligible Household
incomes indicates that the number of Restricted Units actually occupied by Eligible Households
falls below the number reserved for each income group as specified in this Section 2.1 and Exhibit
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B, Owner shall rectify the condition by renting the next available dwelling unit(s) in the Project
to Eligible Household(s) until the required income mix is achieved.
2.2 Rents for Restricted Units. Rents for Restricted Units shall be limited to
Affordable Rents for households of the applicable income limit in accordance with Section 2.1
and Exhibit B. Notwithstanding the foregoing, no Eligible Household qualifying for a Restricted
Unit shall be denied continued occupancy of a unit in the Project because, after admission, such
Eligible Household's adjusted income increases to exceed the qualifying limit for such Restricted
Unit. A household which at initial occupancy qualifies in a particular income category shall be
treated as continuing to be of such income category so long as the household’s gross income does
not exceed 140% of the applicable income limit. In the event the gross household income of a
household that qualified at the applicable income limit at initial occupancy exceeds the applicable
income limit for a unit, that unit will continue to be considered as satisfying the applicable income
limit if the unit remains Rent-Restricted.
If upon recertification of Eligible Household incomes, Owner determines that a Eligible
Household has a household income exceeding the maximum qualifying income for such Eligible
Household’s unit, the Eligible Household shall be permitted to continue to occupy the unit, and
upon expiration of the Eligible Household's lease and upon sixty (60) days’ written notice, Owner
may increase the rent for such unit to the fair market rent, and Owner shall rent the next available
unit to a Eligible Household whose household income does not exceed the applicable income limit
in order to achieve the affordability requirements of this Agreement.
2.3 Unit Sizes, Design and Location. The Restricted Units shall be of comparable
design quality as unrestricted units in the Project. Eligible Households of Restricted Units shall
have access to all common facilities of the Project equal to that of Eligible Households of units in
the Project that are not Restricted Units. The Restricted Units shall be allocated among affordability
categories as set forth in Exhibit B.
2.4 City Grant Funds. Owner shall ensure that all City Grant Funds are used for the
construction of affordable units in a manner consistent with the applicable City Grant Funds
requirements, which at a minimum, requires residential rental units assisted For with funds from
the City’s low- and moderate-income housing fund to remain affordable for the longest feasible
time.
2.5 No Condominium Conversion. Owner shall not convert the residential 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 and
meets the affordability requirements of Section 2.1. City’s prior written consent shall be required
with respect to the sale or condominium conversion of the retail/commercial portion of the
Project or any part thereof.
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 law and consistent with the program regulations for funding sources used
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for development of the Project, at initial lease up, Owner shall give a preference in the rental of
the residential units in the Project to Eligible Households that include at least one member who
lives or works in the City of South San Francisco. If there are fewer Eligible Households than the
number of such units, the units will be made available to the general public. 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 in the Project. Owner shall accept as Eligible Households,
on the same basis as all other prospective Eligible 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 any portion thereof, on
the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry,
or national origin 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 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 Eligible Households, lessees, sub-Eligible Households, sublessees or vendees in, of, or for the
Property or part thereof. Owner shall include such provision in all deeds, leases, contracts and
other instruments executed by Owner, and shall enforce the same diligently and in good faith.
3. Reporting Requirements.
3.1. Eligible Household Certification. Owner or Owner’s authorized agent shall obtain
from each household prior to initial occupancy of each Restricted 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;
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. The Annual Report shall, at a minimum, include the following
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information for each dwelling unit in the Project: (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 Eligible 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 regulatory agreement restricting occupancy and/or rents
pursuant to requirements imposed in connection with the use of state or federal low-income
housing tax credits, Owner may satisfy the requirements of this Section by providing City with a
copy of compliance reports required in connection with such financing.
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 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 Development, and shall permit any duly authorized representative of the City to inspect records,
including records pertaining to income and household size of Eligible Households. All Eligible
Household 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 pursuant to the DA.
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 residential portion of
the Project, this Agreement shall automatically terminate and be of no further force or effect.
4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan. This
Agreement shall remain effective and fully binding for the full term hereof, as such may be extended
pursuant to Section 4.1, 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.
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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. Any successor-in-interest to Owner, including without
limitation any purchaser, transferee or lessee of the Property or the Project (other than the Eligible
Households of the individual dwelling units or retail/commercial space within the Project) shall be
subject to all of the duties and obligations imposed hereby for the full term of this Agreement. 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 Eligible Households, 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 residential units, common areas, meeting rooms, landscaping,
driveways, parking areas and walkways) in a condition free of all waste, nuisance, debris,
unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity,
and shall take all reasonable steps to prevent the same from occurring on the Property or at the
Project. Owner shall prevent and/or rectify any physical deterioration of the Property and the
Project and shall make all repairs, renewals and replacements necessary to keep the Property
and the improvements located thereon in good condition and repair. Owner shall provide
adequate security services for occupants of the Project.
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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 Restricted Units to
prospective Eligible Households in accordance with fair housing laws and this Agreement, Owner’s
Eligible Household selection criteria, and how Owner plans to certify the eligibility of Eligible
Households. 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 Project Eligible Households. 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
Management and Marketing Plan, the proposed management entity, or a proposed amendment or
change to any of the foregoing within thirty (30) 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
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 6.6 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.
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6.6 Insurance Coverage. Throughout the term of this Agreement Owner shall comply
with the insurance requirements set forth in the DA, and shall, at Owner’s expense, maintain in full
force and effect insurance coverage as specified in the DA.
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. Owner hereby represents, warrants and covenants that with the exception of
easements of record, absent the written consent of City, this Agreement shall not be subordinated in
priority to any lien (other than those pertaining to taxes or assessments), encumbrance, or other
interest in the Property or the Project. If at the time this Agreement is recorded, any interest, lien,
or encumbrance has been recorded against the Project in position superior to this Agreement, upon
the request of City, Owner hereby covenants and agrees to promptly undertake all action necessary
to clear such matter from title or to subordinate such interest to this Agreement consistent with the
intent of and in accordance with this Section 7, and to provide such evidence thereof as City may
reasonably request. Notwithstanding the foregoing, the City agrees that pursuant to Health and
Safety Code Section 33334.14(a)(4), the City will not withhold consent to reasonable requests for
subordination of this Agreement to deeds of trust provided for the benefit of lenders identified in
the Financing Plan approved in connection with the DA, provided that the instruments effecting
such subordination include reasonable protections to the City in the event of default consistent
with the requirements of Health and Safety Code Section 33334.14(a)(4), including without
limitation, extended notice and cure rights.
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 freely 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.
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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 only as
set forth in the DA, and with City’s prior written consent, which consent City shall not withhold
provided that (1) the Project is and shall continue to be operated in compliance with this
Agreement; (2) the transferee expressly assumes all obligations of Owner imposed by this
Agreement; (3) the transferee executes all documents reasonably requested by the City with respect
to the assumption of the Owner’s obligations under this Agreement, and upon City’s and/or
Agency’s request, delivers to the City an opinion of its counsel to the effect that such document
and this Agreement are valid, binding and enforceable obligations of such transferee; and (4) either
(A) the transferee has at least three years’ experience in the ownership, operation and management
of low-income multifamily rental housing projects of similar size to that of the Project, without
any record of material violations of nondiscrimination provisions or other state or federal laws or
regulations applicable to such projects, or (B) the transferee agrees to retain a property
management firm with the experience and record described in sub-clause (A).
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.
8.3 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
35
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.
8.4 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 hereof;
(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 (60) 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), 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 thirty (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:
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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. For violations of obligations with respect to rents for Restricted Units, impose as
liquidated damages a charge in an amount equal to the actual amount collected in
excess of the Affordable Rent;
C. 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 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 do not and shall not waive any rights against Owner that
they 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
or the DA.
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
37
below or to such other address as a Party may designate by written notice delivered to the other
parties in accordance with this Section. All such notices 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
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
555 12th Street, Suite 1500
Oakland, CA 94607
Tel (510) 808-2000
Email [email protected]
If to Developer: 311 9th Avenue
San Mateo, CA 94401
Attn: Mr. Victor Lo
Phone: 415-297-0709
Email: [email protected]
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.
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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
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, together with the DA, and the other
City Documents and Agency Documents 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. Exhibits A and 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.
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
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By: __________________________________
Name:________________________________
Title:_________________________________
ATTEST:
By: _________________________________
Krista Martinelli, City Clerk
APPROVED AS TO FORM:
By: _________________________________
Jason Rosenberg, City Attorney
OWNER
ROEM DEVELOPMENT CORPORATION,
A CALIFORNIA CORPORATION
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.
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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
432 BADEN AVENUE
LEGAL DESCRIPTION
That real property situated in the State of California, County of San Mateo, City of South Su.
Francisco, and described as Lot 8 in Block 117, as shown on that certain map entitled "SOUI'H
SAN FRANCISCO SAN MATEO CO. CAL PLAT. NO. 1”, filed in the office of the County
Recorder of San Mateo County, State of California, on March 1, 1892 in Book “B” of Maps at
page(s) 6, and a copy entered in Book 2 of Maps at Page 52.
AP. No.: 012-321-160 JPN 012 032 321 16 A
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Exhibit B
Number of Units by Unit Size and Targeted Area Median Income (AMI) Levels
432 Baden Avenue Property
Maximum
Household
Income
30-60% AMI Up to 60%
AMI
60% - 80%
AMI
80% -120%
AMI
Total
Studio
1-Bedroom
2-Bedroom
3-Bedroom
Total
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Exhibit E
FORM OF COMPLETION GUARANTY
THIS COMPLETION GUARANTY (the “Guaranty”) is made this ___day of
_____________________, 2020 by and between THE CITY OF SOUTH SAN FRANCISCO, a
municipal corporation (“City”) and ____________________________________(“Guarantor”).
RECITALS
A. On _______, _______________________________, a _________ (“Developer”)
acquired the real property commonly known as 432 Baden Avenue, South San
Francisco, California (the “Property”) from the City pursuant to that certain
Purchase and Sale Agreement and Joint Escrow Instructions dated ____________,
2020 (the “PSA”).
B. As set forth in the PSA, Developer is to construct a 36 residential unit project, three
(3) of which are required to be below market rate units (“Project”).
C. As a condition precedent to transferring the Property to Developer, the City requires
Guarantor to execute and deliver this Guaranty Guarantying the lien-free
completion of the Project pursuant to, and in accordance with, the PSA, and
providing for the performance of other covenants contained herein.
GUARANTY AND AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the agreements set forth below,
Guarantor hereby agrees as follows:
1. Guaranty. Subject to the terms and conditions set forth herein, Guarantor
unconditionally and irrevocably guarantees the full and timely performance of Developer’s
obligations under the DA, to construct and complete the Project in accordance with the DA, free
and clear of all mechanics liens.
2. Remedies. If Developer fails to timely perform an of its obligations under the PSA with
respect to the construction and completion of the Project, after expiration of any applicable notice
and cure periods, the City, prior to exercising any of its remedies hereunder, shall demand (by
written notice) that Guarantor perform the same on Developer’s behalf. If, within thirty (30) days
after receiving such demand, Guarantor advises the City in writing that Guarantor will commence
and diligently proceed to cure all defaults of Developer under the DA, which by their nature are
capable of being cured by Guarantor, then the PSA shall remain in full force and effect, and the
City shall perform for the benefit of the Guarantor any unperformed obligations of the City under
the DA. If Guarantor fails to respond to City’s written notice, or fails to perform as herein above
provided, the City shall have the following remedies in addition to other remedies expressly
provided herein:
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(a) From time to time and without first being required to exhaust any or all
security held by the City, if any, to require performance by the Guarantor of any
obligation to be performed on the part of the Guarantor pursuant to the terms hereof, by
action at law or in equity or both. Nothing herein shall be construed to prohibit the City
from pursuing any remedies under any other agreement, against any person other than the
Guarantor.
(b) If Guarantor does not timely perform its obligations under this Guaranty, the
City, at City’s option, shall have the right to perform any obligation required to be
performed by Guarantor under this Guaranty, which City reasonably deems necessary,
and expend such sums as City reasonably deems proper in order so to complete such
obligation. The amount of any and all reasonable expenditures made by City shall be
immediately due and payable by Guarantor to City, notwithstanding City’s pursuit of any
other rights or remedies.
3. Termination. This Guaranty shall terminate and be of no further force or effect upon
the occurrence of either (i) upon issuance of a final certificate of occupancy for the Project, or
(ii) termination of the PSA by either City or Developer in accordance with its own terms.
4. Interest. Any sums required to be paid by the Guarantor to the City pursuant to the
terms hereof that are not paid within thirty (30) days of the date due, shall bear interest at the
prime rate announced by the Bank of America plus three percent (3%), from the date said sums
shall have become due until the date said sums are paid.
5. Consideration. Guarantor acknowledges that the undertakings given hereunder are
given in consideration of the City's conveyance of the Property to Developer pursuant to the PSA
and City’s performance under the DA, and that the City would not convey the Property were it
not for Guarantor’s execution and delivery of this Guaranty.
6. No Waiver, Extension or Modification. No failure on the part of the City to pursue any
remedy hereunder shall constitute a waiver on its part of the right to pursue said remedy on the
basis of the same or a subsequent breach. No extension, modification, amendment or renewal of
the PSA shall serve to waive the provisions hereof or discharge the Guarantor from any
obligation herein contained, in whole or in part, except to the extent expressly approved by the
City by written instrument signed by the City, specifying the nature and the extent of the
intended waiver and discharge of the Guarantor.
7. Covenant of Guarantor. Guarantor shall promptly advise the City in writing of any
material adverse change in the business or financial condition of Guarantor.
8. Guaranty Independent; Waiver of Exoneration.
(a) Guarantor agrees that the obligations hereunder are independent of and in addition to the
undertakings of the Developer pursuant to the DA, any other Guarantees given in
connection with the DA, and other obligations of the Guarantor to the City.
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(b) Guarantor agrees that the validity of this Guaranty shall continue and the obligations of
Guarantor hereunder shall in no way be terminated, affected, diminished or impaired by
reason of any bankruptcy, insolvency, reorganization, arrangement, assignment for the
benefit of creditors, receivership or trusteeship affecting the Developer or its partners,
parents, principals, or members whether or not notice is given to the Guarantor, or by any
other circumstances or condition that may grant or result in a discharge, limitation or
reduction of liability of the Developer or its partners, parents, principals, members or of a
surety or a guarantor.
(c) Guarantor waives all rights and remedies accorded by applicable law to guarantors and
agrees not to assert or take advantage of any such rights or remedies including but not
limited to any right to require the City to, after expiration of applicable notice and cure
periods to Developer, (1) proceed against the Developer, any partner or member of the
Developer or any other person, (2) proceed against or exhaust any security held by the
City, or (3) pursue any remedy in the power of the City whatsoever. If Guarantor is liable
pursuant to this Guaranty, Guarantor waives any defense arising by reason of any
disability or other defense of the Developer or any partner or member of the Developer,
or any of their parents, principals, or affiliated entities or by reason of the cessation from
any cause whatsoever of the liability of the Developer or any member or partner of the
Developer, or any of their parents, principals, or affiliated entities other than the full
discharge and performance of all of Developer’s obligations under the DA. Guarantor,
except as expressly set forth herein, waives any defense it may acquire by reason of the
City's election of any remedy against it or the Developer, or both, even though the
Guarantors’ right of subrogation may be impaired thereby or extinguished under the
antideficiency statutes of the State of California. Without limiting the generality of the
foregoing, Guarantor waives (a) any defense that may arise by reason of the lack of
authority or of any other person or persons or the failure of City to file or enforce a claim
against the estate (in administration, bankruptcy, or any other proceeding) of any other
person or persons; (b) demand, protest and notice of any kind including but not limited to
notice of any kind (except for the notice required in Sections 2 and 10 hereof or under the
DA) including but not limited to notice of the existence, creation or incurring of any new
or additional indebtedness or obligation or of any action or nonaction on the part of
Developer, City, any endorser or creditor of Developer or Guarantor or on the part of any
other person whomsoever under this or any other instrument in connection with any
obligation or evidence of indebtedness held by City as collateral or in connection with
any obligations the performance of which are hereby Guaranty; (c) any defense based
upon any statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the principal;
(d) any duty on the part of City to disclose to Guarantor any facts City may now or hereafter
know about Developer, regardless of whether City has reason to believe that any such
facts materially increase the risk beyond that which Guarantor intended to assume or has
reason to believe that such facts are unknown to Guarantor; (e) any defense arising
because of City's election, in any proceeding instituted under the federal Bankruptcy
Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code; and (f)
any defense based on any borrowing or grant of a security interest under Section 364 of
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the Federal Bankruptcy Code. Without limiting the generality of the foregoing or any
other provision hereof, Guarantor hereby expressly waives any and all benefits which
might otherwise be available to Guarantor under California Civil Code Sections 2809,
2810, 2819, 2839, 2845, 2849, 2850, 2899, and 3433 and California Code of Civil
Procedure Sections 580(a), 580(b), 580(d), and 726.
(e) Until termination of this Guaranty (as set forth in Section 3), Guarantor shall have no
right of subrogation, and waives any right to enforce any remedy that the City now has or
may hereafter have against the Developer or any member of Developer, or any other
person, and waives the benefit of, and any right to participate in, any security now or
hereafter held by City from the Developer.
9. Continued Existence; No Transfer or Assignment.
(a) Guarantor does hereby further agree that as long as this Guaranty is in effect, it will
not dispose of all or substantially all of its assets without the express written approval
of the City, which shall not be unreasonably withheld.
(b) The obligations of Guarantor under this Guaranty may not be assigned or transferred
without, in each case, the express written approval of the City, which approval shall
be within the sole and absolute discretion of the City.
10. Notices. City shall provide Guarantor with all written notices delivered to Developer
pursuant to the PSA at the same time such notice is delivered to Developer. Guarantor shall not
be liable under this Guaranty unless and until it has received such notice. The Guarantor shall
have the right to perform any and all of Developer’s obligations under the DA.
11. Miscellaneous.
(a) This Guaranty shall inure to the benefit of City and its successors and assigns and
shall bind the heirs, executors, administrators, personal representatives, successors
and assigns of Guarantor.
(b) This Guaranty shall be governed by and shall be construed in accordance with the
laws of the State of California.
(c) Time is of the essence hereof.
(d) If any term, provision, covenant or condition hereof or any application thereof should
be held by a court of competent jurisdiction to be invalid, void or unenforceable, all
terms, provisions, covenants and conditions hereof and all applications thereof not
held invalid, void or unenforceable shall continue in full force and effect and shall in
no way be affected, impaired or invalidated thereby.
(e) Guarantor assumes the responsibility for keeping informed of (1) the financial
condition of Developer, (2) any change in the management or control of Developer,
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and (3) all other circumstances bearing upon the risk of nonperformance by
Developer of its obligations under the DA.
(f) This Guaranty shall be construed and enforced in accordance with the laws of the
State of California. Any action to enforce or interpret this Agreement shall be filed
and heard in the Superior Court of San Mateo County, California.
(g) Any notice or communication required hereunder between City or Guarantor must be
in writing, and may be given either personally, by e-mail (with original forwarded by
regular U.S. Mail), by registered or certified mail (return receipt requested), or by
Federal Express or other similar courier promising overnight delivery. If personally
delivered, a notice shall be deemed to have been given when delivered to the party to
whom it is addressed. If given by email transmission, a notice or communication shall
be deemed to have been given and received upon actual physical receipt of the entire
document by the receiving party. Notices transmitted after 5:00 p.m. on a normal
business day or on a Saturday, Sunday, or holiday shall be deemed to have been given
and received on the next normal business day. If given by registered or certified mail,
such notice or communication shall be deemed to have been given and received on
the first to occur of: (i) actual receipt by any of the addressees designated below as
the party to whom notices are to be sent, or (ii) five (5) days after a registered or
certified letter containing such notice, properly addressed, with postage prepaid, is
deposited in the United States mail. If given by Federal Express or similar courier, a
notice or communication shall be deemed to have been given and received on the date
delivered as shown on a receipt issued by the courier. Any party hereto may at any
time, by giving ten (10) days written notice to the other party hereto, designate any
other address in substitution of the address to which such notice or communication
shall be given. Such notices or communications shall be given to the parties at their
addresses set forth below:
If to City, 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: City of South San Francisco
400 Grand Avenue
Attn: ECD Director
South San Francisco, CA 94080
Phone: (650) 829-6622
[email protected]
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With a Copy to: Meyers Nave
Attn: Sky Woodruff
555 12th Street, Suite 1500
Oakland, CA 94607
Tel (510) 808-2000
Email [email protected]
If to Guarantor:
With Copies to:
(h) In any legal action or other proceeding brought by either party to enforce or interpret a
provision of this Guaranty, the prevailing party is entitled to reasonable attorneys’ fees
and any other costs incurred in that proceeding in addition to any other relief to which
it is entitled.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the day and year
first above written.
GUARANTOR
By:_____________________________ Name: __________________________
Its______________________________