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HomeMy WebLinkAboutReso 190-2023 (File 23-1024)Page 1 SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 Marina Boulevard /Assessor's Parcel Number: 015-011-350]) This Second Amendment to the Purchase And Sale Agreement And Joint Escrow Instructions (this "Amendment") is made and effective as of December , 2023 (“Effective Date”) by and between the City of South San Francisco, a municipal corporation (“Seller”) and Ensemble Investments, LLC, a California limited liability company (“Buyer”). Seller and Buyer are sometimes collectively referred to herein as “the Parties.” Any capitalized terms not defined herein shall have the meaning ascribed to them in the Agreement. RECITALS A. Seller and Buyer entered into that certain Purchase And Sale Agreement And Joint Escrow Instructions dated December 10, 2021, (“Agreement”) with respect to that certain real property located at 367 Marina Boulevard, South San Francisco, California (Assessor’s Parcel Number 015-011-350 [015-010-970 in the Purchase and Sale Agreement, subsequently re-numbered]) (“Property”); B. The Parties entered into the First Amendment to the Agreement on December 20, 2022 to extend the term and to contemplate the Seller’s completion of the California Surplus Land Act process; C. In light of the current economic conditions in the hotel market, the Parties now desire to enter into this Second Amendment to further extend the term of the Agreement and deadline for close of escrow in order to allow a pause in negotiations until January of 2025 to allow financing and market conditions to stabilize, as memorialized below. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating all of the above as though set forth in full herein and in consideration of all the recitals, conditions and agreements contained herein, the parties hereby agree as follows, with amendments to the Agreement reflected as additions in double underline and deletions in strikethrough. 1. Section 5.1 (as previously amended by the First Amendment) is further amended as follows: Closing. The escrow for conveyance of the Property shall close ("Close of Escrow" or "Closing") within thirty (30) days after the satisfaction, or waiver Page 2 SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, by the appropriate Party, of all of the Buyer's Closing Conditions (as defined in Section 5.2 below) and all of the Seller's Closing Conditions (as defined in Section 5.3 below), which shall occur no later than July 15, 2025 six (6) months after the Seller concludes the statutory process outlined in Government Code section 54220 et seq. (where such statutory process does not result in a sale of the Property to a third-party, (the "Closing Date"). Upon Buyer’s written request, Seller may grant an extension of the Closing Date by an additional three (3) months. 2. Master Development Schedule contained in Exhibit C is Amended as shown in Attachment 1 Exhibit C-Revised attached hereto and incorporated herein. 3. General Provisions. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Second Amendment and the meaning of the provisions hereof. The provisions of this Second Amendment shall be construed as to the fair meaning and not for or against any party based upon any attribution of such party as the sole source of the language in question. Except as expressly amended pursuant to this Second Amendment, the terms and provisions of the Agreement shall remain unmodified and shall continue in full force and effect, and Buyer and Seller hereby ratify and affirm all their respective rights and obligations under the Agreement. In the event of any conflict between this Second Amendment and the Agreement, this Second Amendment shall govern. The terms and provisions of this Second Amendment, together with the Agreement, shall constitute all of the terms and provisions to which Buyer and Seller have agreed with respect to the transaction governed hereby, and there are no other terms and provisions, oral or written, that apply to the Agreement and/or the Property other than as set forth in the Agreement as modified by this Second Amendment. The provisions of this Second Amendment shall apply to, be binding upon, and inure to the benefit of the parties hereto and to their respective successors and assigns. 4. Counterparts. This Second Amendment may be executed in multiple counterparts, all of which shall constitute an original, and all of which together shall constitute a single instrument. Counterparts of this Second Amendment executed and delivered by facsimile, email or other means of electronic delivery shall constitute originals for all purposes. SIGNATURES ON FOLLOWING PAGE Page 3 SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the Effective Date. SELLER: CITY OF SOUTH SAN FRANCISCO By: Sharon Ranals City Manager ATTEST: By: Rosa Govea Acosta City Clerk APPROVED AS TO FORM: By: Sky Woodruff City Attorney Page 4 SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, BUYER: Ensemble Investments, LLC, a California corporation By: Name: Title: 5549401.1 Page 5 SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (367 MARINA BOULEVARD, SOUTH SAN FRANCISCO, Attachment 1 EXHIBIT C-REVISED Master Development Schedule—Updated December ________, 2023 Activity Milestones Submit application for Precise Plan No later than May 1, 2022 Receive Development Agreement Approval (first reading) No later than 2 weeks prior to Closing Date Receive Entitlement Approval No later than 2 weeks prior to Closing Date Closing of Escrow No later than July 15, 2025 or October 15, 2025 if Seller elects to extend pursuant to Section 5.1 Submit application for Building Permit No later than 12 months after Closing Date Delivery of Proof of an Approved Construction Loan from a Reputable Lender Within 18 months of submitting for Building Permit. Delivery of a Final Construction Contract Within 18 months of submitting for Building Permit. Construction Commences Within 19 months of submitting for building permit. Substantial Completion of Construction Within 36 months of construction commencement; targeted for 26-month schedule, but no later than 35-month schedule. Estimated Opening of hotel Targeted for 2 months after Substantial Completion of Construction. *Note that all target dates are subject to automatic extension for delays due to factors beyond Developer’s reasonable control in accordance with the force majeure provisions of the Development Agreement.