4910-1683-6220 v1
ATTACHMENT K
RESOLUTION NO. xx-2025
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFICA APPROVING
AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR
PURCHASE AND SALE (INCLUDING JOINT ESCROW INSTRUCTIONS) AND
TERMS OF DEVELOPMENT WITH BREAKWATER CRESPI, LLC FOR A PORTION OF THE CITY’S PROPERTY LOCATED AT 540 CRESPI DRIVE IN THE CITY OF
PACIFICA
WHEREAS, City owns that certain real property located at 540 Crespi Drive in the City of Pacifica, identified as Assessor’s Parcel Number 022-162-420 (“Greater Parcel”); and
WHEREAS, Breakwater Crespi, LLC (“Buyer”) has submitted a proposal to City to purchase the eastern 55 feet of the Greater Parcel (the “Property”), which abuts property owned by Buyer at 570 Crespi Drive (“”Buyer Property”) and obtain land use entitlements to develop and construct 19 residential units, including three affordable units, and approximately 3,100 square feet of commercial space on the Property and the Buyer Property (“Project”); and
WHEREAS, in order to comply with the Surplus Land Act (Government Code Section 54220 et seq.) (“SLA”), on May 22, 2023, the City Council adopted Resolution No. 49-2023, declaring the Property as surplus property; and WHEREAS, the City issued a Notice of Availability of the Property pursuant to the SLA, on June 27, 2023, and received no responses within the 60-day response period and can now transfer the Property to Buyer; and
WHEREAS, the City Council held a duly noticed hearing on the Project at a special meeting of the City Council on December 2, 2025 and adopted Resolution No. xx-2025 certifying the Final EIR and adopting the CEQA Findings, a Statement of Overriding Considerations, and Mitigation and Monitoring Program for the Project; and WHEREAS, at its meeting on December 2, 2025, the City Council also adopted various resolutions and ordinances to approve the land use and project entitlements for the Project.
NOW, THEREFORE, BE IT RESOLVED THAT by the City Council of the City of Pacifica as follows:
Section 1. Recitals. The City Council does hereby find, determine and resolve that all of the foregoing recitals are true and correct.
Section 2. CEQA Findings. The City Council does hereby find the sale of the Property to effectuate construction of the Project is covered under the certified EIR. 4910-1683-6220 v1
Section 3. Approval and Authorization. The City Council does hereby resolve, order and/or direct as follows:
a. The Agreement, substantially in the form attached hereto as Exhibit A and incorporated herein, by this reference, is hereby approved. b. The City Manager is hereby delegated authority to and is authorized and directed to execute the Agreement substantially in the form attached hereto as Exhibit A, subject to minor or technical changes approved by the City Manager and City Attorney.
c. The City Manager or their designee is authorized and directed to execute such additional instruments and to take such actions as necessary to carry out the intent of this Resolution and the Agreement, including executing a Grant Deed to transfer the Property.
Section 4. Effective Date. This Resolution shall take effect immediately upon adoption.
* * * * * * * *
PASSED AND ADOPTED at a special meeting of the City Council of the City of Pacifica, California, held on the 2nd of December.
AYES, Council Members:
NOES, Council Members:
ABSENT, Council Members:
ABSTAIN, Council Members:
_____________________________
Sue Beckmeyer, Mayor
ATTEST: APPROVED AS TO FORM:
______________________________ _____________________________ Sarah Coffey, Michelle Kenyon, City Attorney
City Clerk
4910-1683-6220 v1
EXHIBIT A
PURCHASE AND SALE AGREEMENT
1 AGREEMENT FOR PURCHASE AND SALE
(INCLUDING JOINT ESCROW INSTRUCTIONS) AND
TERMS OF DEVELOPMENT
This Agreement for Purchase and Sale (Including Joint Escrow Instructions) and Terms of Development (“Agreement”), dated as of _______________, (“Effective Date”), is between the CITY OF PACIFICA, a California municipal corporation (“Seller” or “City”), and BREAKWATER CRESPI, LLC, a California limited liability company (“Buyer”).
R E C I T A L S
A. Seller is the owner of that certain real property consisting of that certain portion of the Community Center property located at 540 Crespi Drive in the City of Pacifica, identified as Assessor’s Parcel Number 022-162-420, as more particularly described and depicted on Exhibit A, attached hereto and incorporated herein by this reference (“Property”). The Property consists of the eastern 55 feet of the greater parcel owned by Seller and abuts property owned by Buyer at 570 Crespi Drive (“Buyer Property”).
B. Buyer has submitted a proposal to Seller to acquire the Property from Seller and obtain land use entitlements to develop and construct 19 residential units, including three affordable units, and approximately 3,100 square feet of commercial space on the Property and the Buyer Property (“Project”).
C. On November 3, 2025, the Planning Commission of the City of Pacifica conducted a review pursuant to Government Code Section 65402 and determined that Seller’s disposition of the Property to Buyer pursuant to the terms hereof is consistent with, and will facilitate implementation of the City of Pacifica General Plan, as adopted by Planning Commission Resolution No. .
D. Pursuant to the California Environmental Quality Act (“CEQA”) (Public Resources Code section 21000 et seq.), an Environmental Impact Report (“EIR”) for the Project has been prepared.
E. On _______________, the City Council of the City of Pacifica (“City Council”) considered and by Resolution No. _________ approved Seller entering into this Agreement.
F. The EIR, the Development Agreement, this Agreement, and related approvals were all considered and approved and adopted by the City Council on _________.
A G R E E M E N T
1. Purchase and Sale of Property.
1.1 Incorporation of Recitals. The recitals set forth above are incorporated herein by this reference.
2 1.2 Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, on the terms and conditions set forth herein, the Property together with any and all rights, privileges and easements appurtenant thereto owned by Seller.
1.3 Purchase Price. The purchase price for the Property is Seven Hundred Fifty Thousand Dollars ($750,000.00) (“Purchase Price”). The Purchase Price shall be paid to Seller at Closing, as defined in Section 6.2, in immediately available funds.
1.4 Requirements to Develop the Project.
a. Buyer intends to develop the Project on the Property and has concurrently obtained the following land use entitlements from Seller, as City of Pacifica: General Plan Amendment (GPA-096-19), Rezoning (RZ-194-16), Zoning Text Amendment (TA-116-19), Development Agreement (DA-4-21), Site Development Permit (PSD-811-16), Use Permit (UP076-16), Parking Exception (PE-183-19), Sign Permit (S-129-19), and Tentative Subdivision (SUB-233-16).
b. Buyer agrees and acknowledges that it will be required to execute and record the approved Development Agreement, which will grant Buyer vested rights and set forth the obligations of Buyer to develop the Project (“Development Agreement”). The terms of the Development Agreement are hereby incorporated by reference in this Agreement. c. Buyer shall obtain a building permit to construct the Project prior to Closing.
1.5 Good Faith Deposits.
a. Within three business days of escrow being opened as set forth in Section
6.1 of this Agreement, Buyer shall deliver into escrow a good faith deposit in the amount of Seventy Five Thousand Dollars ($75,000.00) (“Good Faith Deposit”). The Good Faith Deposit shall serve as security for the performance of Buyer’s obligations under this Agreement, shall be applied towards the Purchase Price at Closing and is fully refundable to Buyer prior to the expiration of the Due Diligence Period (see Section 3.3). After the Due Diligence Period, the Good Faith Deposit shall be nonrefundable and shall constitute liquidated damages to Seller in the event the purchase and sale is not completed as provided herein.
After the expiration of the Buyer’s Due Diligence Period and Buyer’s acceptance of the condition of the Property, as set forth in Section 3.3, the Good Faith Deposit may only be returned to Buyer if all Buyer’s Conditions Precedent to Conveyance, as set forth in 2.1 have not been satisfied or waived by Buyer, or Seller is in default under this Agreement following notice and expiration of applicable cure periods.
Buyer acknowledges that the construction of the Project on the Property is a material consideration to Seller.
IN THE EVENT BUYER DEFAULTS IN BUYER’S OBLIGATION TO
SATISFY ALL CONDITIONS PRECEDENT AND PURCHASE THE
PROPERTY WITHIN THE TIME AND IN THE MANNER SPECIFIED IN 3 THIS AGREEMENT, AND SELLER IS READY, WILLING AND ABLE TO
CLOSE THIS TRANSACTION, SELLER SHALL BE RELEASED FROM ALL
OBLIGATIONS AT LAW OR IN EQUITY TO CONVEY THE PROPERTY TO BUYER. BUYER AND SELLER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
AMOUNT OF DAMAGES SUFFERED BY SELLER BECAUSE OF SUCH
DEFAULT; THAT THE GOOD FAITH DEPOSITS DEPOSITED INTO
ESCROW BY BUYER CONSTITUTE A REASONABLE ESTIMATE AND
AGREED STIPULATION OF SUCH DAMAGES; THAT SELLER SHALL
RETAIN SUCH SUM AS LIQUIDATED DAMAGES AS ITS SOLE AND
EXCLUSIVE REMEDY IN THE EVENT OF BUYER’S DEFAULT, WAIVING
ANY RIGHT TO SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN EQUITY.
____________________ ______________________
Seller’s Initials Buyer Initials
If this Agreement is not cancelled or terminated, as provided herein, or the Good Faith Deposits are not retained by Seller as liquidated damages, the Good Faith Deposits shall be credited against the Purchase Price at Closing.
2. Conditions.
2.1 Buyer’s Conditions Precedent to Conveyance. Buyer’s obligation to purchase the Property is conditioned upon the following:
a. All of the representations and warranties made by Seller to Buyer pursuant to this Agreement shall be true and correct in all material respects as of the Closing date, as if made on such date.
b. Pursuant to Section 3.3, Buyer shall have completed its due diligence within the Due Diligence Period and provided written notice to Seller that all aspects of the Property are acceptable to Buyer.
c. Seller shall have delivered each of the documents described in 6.3(a), prior to the Closing date.
d. Title Company (as defined in 6.1) shall have issued an irrevocable and unconditional commitment to issue the Title Policy (as defined in 4.3) upon recordation of the Grant Deed (as defined in 4.1).
e. Seller shall not be in material default of any of its obligations under this Agreement following notice and expiration of any applicable cure period. f. Seller shall have completed the Lot Line Adjustment as set forth in Section 6.3(a)(iv) below.
4 g. There shall not have occurred any material change with respect to the Property.
The conditions precedent to conveyance set forth in this 2.1 (“Buyer’s Conditions Precedent to Conveyance”) are solely for the benefit of Buyer and may be waived only by Buyer. No such waiver shall be binding upon Buyer unless made in writing by an authorized representative of Buyer.
2.2 Seller’s Conditions Precedent to Conveyance. Seller’s obligation to sell the Property is conditioned upon the following:
a. All of the representations and warranties made by Buyer to Seller pursuant to this Agreement shall be true and correct in all material respects as of the Closing date, as if made on such date.
b. Buyer shall have delivered the Good Faith Deposits, as required by Section 1.5.
c. Buyer shall have delivered each of the items described in 6.3(b) prior to the Closing date, and shall have performed all of its obligations under this Agreement in accordance with the provisions hereof.
d. Buyer shall have entered into the Development Agreement and the Development Agreement shall be recorded against the Property. e. Buyer shall have obtained building permits and be prepared to construct the Project immediately upon close of escrow.
f. Buyer shall not be in material default of any of its obligations under this Agreement following notice and expiration of any applicable cure period.
The conditions precedent to conveyance set forth in this Section 2.2 (“Seller’s Conditions Precedent to Conveyance”) are solely for the benefit of Seller and may be waived only by Seller. No such waiver shall be binding upon Seller unless made in writing by an authorized representative of Seller.
3. Representations and Warranties, Buyer’s Due Diligence, and Disclaimers and Releases.
3.1 Representations and Warranties of Seller. Seller hereby makes the following representations and warranties.
a. Seller, as of the Effective Date, owns fee simple title to the Property. b. There is no litigation, action, suit, arbitration, claims proceeding or governmental investigation in law or equity pending or, to Seller’s actual knowledge, threatened, with respect to the Property or against Seller which would prevent Seller from performing its obligations hereunder, or which would have a material adverse effect on the Property or Buyer. 5 c. To the best of Seller’s knowledge, Seller’s execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Seller is a party or by which it is bound. d. Seller shall maintain the Property until Closing in a manner generally consistent with the manner in which Seller has maintained the Property prior to the date of this Agreement.
e. Prior to Closing, Seller will not violate or modify, orally or in writing, any lease, contract, understanding or any other agreements, or create any new leases or other agreements affecting the Property, without Buyer’s written approval. f. To the best of Seller’s knowledge, no person, except as disclosed by this Agreement or otherwise in writing to Buyer, has any right to possession of the Property. There exist no oral or written leases or rental agreements affecting all or any portion of the Property. g. Seller will convey fee simple title to Buyer subject only to the Permitted Exceptions, as defined in 4.2 below. Seller agrees not to create any new title exceptions following the Effective Date unless Buyer’s written approval of such new exception(s) is first obtained.
h. To the best of Seller’s knowledge, there is no change contemplated in any applicable City laws which would prevent, limit, or impede Buyer’s contemplated use of the Property.
i. All references herein to “Seller’s knowledge” means the current, actual knowledge of City’s City Manager or his or her designee (“Seller’s Representative”), without any obligation of inquiry, and such term shall not include the knowledge of any other person or firm, it being understood by Buyer that (a) Seller’s Representative is not charged with knowledge of any of the acts or omissions of predecessors in title to the Property or the management of the Property before Seller’s acquisition of the Property, and (b) Seller’s current actual knowledge shall not apply to, or be construed to include, information or material which may be in the possession of Seller generally or incidentally, but of which Seller’s Representative is not actually aware.
j. Each of the representations and warranties of Seller contained in this 3.1 is true as of the Effective Date, and shall be deemed remade by Seller and shall be true as of the Closing date.
3.2 Representations and Warranties of Buyer. Buyer represents and warrants to Seller as follows:
a. Buyer is a limited liability company organized under the laws of the State of California. Buyer has full right, power and lawful authority to undertake all obligations of Buyer as provided herein and the execution, performance and delivery of this Agreement by Buyer has been fully authorized by all requisite actions on the part of the Buyer, which have been provided to City for review.
6 b. To the best of Buyer’s knowledge, Buyer’s execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Buyer is a party or by which it is bound. c. Buyer is not the subject of any bankruptcy proceeding. d. There are no actions, suits, material claims, legal proceedings, or any other proceedings affecting Buyer that would affect its authority to enter into and undertake all obligations under this Agreement.
Each of the representations and warranties of Buyer contained in this 3.2 is true as of the Effective Date, and shall be deemed remade by Buyer and shall be true as of the date of Closing.
3.3 Buyer’s Due Diligence. Within 90 calendar days following the Effective Date (“Due Diligence Period”), Buyer shall have reviewed, inspected and investigated, at its expense, the Property, either independently or through agents of Buyer’s choosing, including, but not limited to, the following:
a. The size and dimensions of the Property.
b. The availability and adequacy of water, sewage, fire protection, and any utilities serving the Property.
c. All matters relating to title, including extent and conditions of title to the Property, taxes, assessments, and liens.
d. All legal and governmental laws, statutes, rules, regulations, ordinances, and restrictions or requirements concerning the use and development of the Property including zoning, use permit requirements and building codes.
e. Natural hazards, including flood plain issues, currently or potentially concerning or affecting the Property.
f. The physical, legal, economic and environmental condition and aspects of the Property, and all other matters concerning the conditions, use, sale or development of the Property, including any permits, licenses, engineers’ reports and studies and similar information relating to the Property. Such examination of the condition of the Property may include examinations for the presence or absence of Hazardous Materials, as defined below, as Buyer deems necessary or desirable. The term “Hazardous Materials” means any and all substances, contaminants, chemicals, wastes, sewage, materials or emissions which are now or hereafter regulated, controlled, prohibited or otherwise affected by any present or future local, state or federal statute, ordinance, code, rule, regulation, order, decree, permit or other law now or hereafter in effect, including but not limited to (i) asbestos (including asbestos-containing materials); (ii) flammable, explosive, infectious, carcinogenic, mutagenic, or radioactive materials; (iii) petroleum or any substance containing or consisting of petroleum hydrocarbons (including gasoline, diesel fuel, motor oil, waste oil, grease or any other fraction of crude oil); (iv) paints and solvents; (v) lead; (vi) cyanide; (vii) DDT; (viii) printing inks; (ix) acids; 7 (x) pesticides; (xi) ammonium compounds; (xii) polychlorinated biphenyls; (xiii) radon and radon gas; and (xiv) electromagnetic or magnetic materials, substances or emissions. g. Any easements and/or access rights affecting the Property. h. Any contracts and other documents or agreements affecting the Property. i. All other matters of material significance affecting the Property.
Within ten (10) business days of the Effective Date, Seller shall deliver or make available to Buyer copies of all governmental reports, notices, soils tests, environmental reports, plans, surveys, engineering reports, and any other material documents, information and data relative to the Property that are in Seller’s possession or under Seller’s control (“Seller Materials”).
Prior to expiration of the Due Diligence Period, Buyer shall provide written notice to Seller that (i) it has approved the physical, legal, economic and environmental condition and aspects of the Property, and all other matters concerning the legal status, condition, use, sale or development of the Property as set forth above in its sole and absolute discretion and intends to move forward with the purchase and development of the Property; or (ii) it desires to terminate the Agreement. If Buyer fails to notify Seller on or before the last day of the Due Diligence Period that Buyer has approved the Property as provided above, Buyer shall be deemed to have elected to terminate this Agreement. If Buyer terminates this Agreement as provided herein, the First Good Faith Deposit shall be returned to Buyer.
3.4 As-Is Conveyance.
BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN “AS IS WITH ALL FAULTS” BASIS, CONDITION AND STATE OF REPAIR INCLUSIVE OF ALL FAULTS
AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE
CLOSING, INCLUDING THE ENVIRONMENTAL CONDITIONS DESCRIBED ABOVE (“AS IS CONDITION”) AND THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION
3.1, ABOVE, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES FROM SELLER OR ANY OF SELLER’S ELECTED OFFICIALS,
OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, ATTORNEYS OR BROKERS (COLLECTIVELY, “SELLER PARTIES”) AS TO ANY MATTERS CONCERNING THE PROPERTY.
3.5 Disclaimers. Buyer acknowledges and agrees that except as expressly set forth in this Agreement: (a) neither Seller, nor any Seller Party, has made any representations, warranties, or promises to Buyer, or to anyone acting for or on behalf of Buyer, concerning the condition of the Property or any other aspect of the Property; (b) the condition of the Property has been independently evaluated by Buyer prior to the Closing; and (c) any information, including Seller Materials, which Buyer has received or may hereafter receive from Seller or any Seller Party were and are furnished without warranty of any kind and on the express condition that Buyer has made its own independent verification of the accuracy, reliability and completeness of such information and that Buyer will not rely on any of the foregoing. 8 3.6 Waivers and Releases. Buyer hereby releases Seller from any and all manner of rights, liabilities, claims, actions, causes of action, suits, proceedings, demands, damages, costs, expenses (including attorney’s fees and costs) or other compensation whatsoever, in law or equity, of whatever kind or nature, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent that Buyer now has or may have or which may arise in the future arising out of, directly or indirectly, or in any way connected with (a) all warranties of whatever type or kind with respect to the physical or environmental condition of the Property, whether express, implied or otherwise, including those of fitness for a particular purpose or use; (b) use, management, ownership or operation of the Property; (c) the physical, environmental or other condition of the Property; (d) the application of, compliance with or failure to comply with any Applicable Laws as to the Property; (e) Hazardous Materials as to the Property; and (f) the As Is Condition (the foregoing are collectively referred to as “Claims”). By releasing and forever discharging the Claims, Buyer expressly waives any rights under California Civil Code Section 1542, which provides:
“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.”
INITIALS: CITY ______ BUYER _______
Notwithstanding the foregoing, the release and waiver of Claims set forth in this Section
3.6 shall not apply to any Claims arising from the sole active negligence or willful misconduct of Seller or from breaches by Seller of this Agreement (including but not limited to breaches of representations and warranties of Seller expressly set forth herein). The provisions of this Section 3.6 are a material portion of the consideration given by each party to the other in exchange for such party’s performance under this Agreement and shall survive the Closing.
4. Conveyance and Title.
4.1 Conveyance. At the Closing, Seller shall convey title to the Property to Buyer by grant deed in a form substantially similar to that attached hereto as Exhibit B (“Grant Deed”), free of any possession or right of possession by any person except that of Buyer and subject only to those exceptions approved by Buyer pursuant to Section 4.2 below.
4.2 Review and Approval of Condition of Title. Buyer has received a standard preliminary title report for the Property dated December 16, 2019, together with legible copies of the documents underlying the exceptions set forth in the preliminary title report. Buyer shall have the right to reasonably approve or disapprove all exceptions. Buyer hereby approves the following exceptions which shall be referred to herein as the “Pre-Approved Exceptions”: (a) the lien of any non-delinquent property taxes and assessments (which, if any exist, shall be 9 prorated by the Title Company at Closing); and (b) easements and right-of-way exceptions numbers 4, 5, 6, and 11.
Within thirty (30) days after the Effective Date, Buyer shall give written notice to Seller of Buyer’s approval or disapproval of any of the title exceptions, except the Pre-Approved Exceptions. Buyer’s failure to give written disapproval of the exceptions within such time period shall be deemed Buyer’s disapproval of the exceptions. If Buyer delivers notice of disapproval of any exceptions, Seller shall have the right, but not the obligation, to cause any disapproved exceptions to be removed within thirty (30) days after receiving such notice of disapproval (or until five (5) business days prior to Closing, if earlier than the expiration of such thirty (30) day period) or provide assurances satisfactory to Buyer, in its sole discretion, that such exceptions will be removed on or before the Closing. Failure to notify Buyer within such thirty (30) day (or shorter) period shall be deemed Seller’s election not to remove the disapproved exceptions. Seller’s election or deemed election not to remove any disapproved exceptions shall not be a default under this Agreement. If Seller cannot or does not elect to remove any of the disapproved exceptions within such thirty (30) day (or shorter) period, Buyer shall have five (5) business days after the expiration of such thirty (30) day (or shorter) period to either give Seller notice that Buyer elects, in its sole discretion, to proceed with the Closing, subject to the disapproved exceptions, or to give Seller notice that Buyer elects to terminate this Agreement, in which case neither party will have any further rights or obligations under this Agreement other than those obligations which survive termination hereof. The Pre-Approved Exceptions and other exceptions to title approved by Buyer as provided herein are hereinafter referred to as the “Permitted Exceptions.” If any exceptions other than the Permitted Exceptions are reported by the Title Company after Buyer has approved the condition of title for the Property pursuant to the foregoing procedures, then any such new exception shall be subject to the same procedures for review and approval set forth above for the Permitted Exceptions.
4.3 Title Insurance. Concurrently with recordation of the Grant Deed, the Title Company shall issue to Buyer such policy of title insurance for the Property which at Buyer’s option may be an ALTA extended coverage owner’s policy (“Title Policy”) as may be required by Buyer, and/or Buyer’s lenders or other institutions that may be providing financing for the Project, together with such endorsements as are reasonably requested by Buyer and/or Buyer’s lenders or other institutions, insuring that Buyer has a valid fee ownership interest in the Property, subject only to the Permitted Exceptions and other encumbrances expressly contemplated by this Agreement to be recorded at Closing. The premium for the Title Policy, plus any additional costs, including the cost of surveys, and any endorsements requested by Buyer shall be paid by Buyer.
5. Brokers.
5.1 Brokers. Seller and Buyer each warrants and represents that it has not engaged the services of any agent, finder or broker in connection with the transaction which is the subject of this Agreement, and that it is not liable for any real estate commissions, broker's fees or finder's fees which may accrue by means of the sale of the Property. Seller and Buyer agree to and do hereby indemnify and hold the other harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, which it has employed in connection with the 10 transaction covered by this Agreement. The provisions of this 5.1 shall survive the Closing or other termination of this Agreement.
6. Closing and Escrow.
6.1 Escrow Instructions. Within ten (10) days following the Effective Date of this Agreement, the parties shall open escrow and deposit an executed counterpart of this Agreement with Kim Gilmore, North American Title Company, located at 711 Main Street, Half Moon Bay, California (“Title Company”), and this instrument shall serve as the instructions to the Title Company as the escrow holder for consummation of the purchase and sale contemplated hereby.
Seller and Buyer agree to execute such reasonable additional and supplementary escrow instructions as may be appropriate to enable the Title Company to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall control.
6.2 Closing. “Closing” means the consummation of the purchase and sale of the Property as described herein as evidenced by the performance by each party of its obligations hereunder, including the Title Company’s recordation and delivery of the Grant Deed, delivery of the documents as set forth in this Agreement, Title Company’s irrevocable and unconditional commitment to issue the Title Policy upon recordation of the Grant Deed, and the payment of the Purchase Price by Buyer. The Closing hereunder shall be held and delivery of all items to be made at the Closing under the terms of this Agreement shall be made at the offices of the Title Company on the date which is within ten calendar days of completion of all conditions precedent to conveyance as set forth above, but in no event later than December 31, 2026, as may be extended by the parties (“Outside Closing Date”).
6.3 Deposit of Documents.
a. At or before the Closing, Seller shall deposit into escrow the following items:
(i) Documentary transfer taxes and Seller’s customary share of the normal prorations;
(ii) Documentation of a credit towards the Purchase Price in the amount of the Good Faith Deposit;
(iii) the duly executed and acknowledged Grant Deed conveying the Property to Buyer;
(iv) a Lot Line Adjustment modifying the property lines so that the Property and Buyer Property constitute one legal parcel; (v) an executed affidavit pursuant to Section 1445(b)(2) of the Internal Revenue Code, and on which Buyer is entitled to rely, that Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code; and 11 (vi) an executed California 597-W Certificate.
b. At or before Closing, Buyer shall deposit into escrow the following items:
(i) an executed Preliminary Change of Ownership Report; and (ii) funds necessary to close this transaction, including the Purchase Price, adjusted by a credit towards the Purchase Price in the amount of the Good Faith Deposit, any normal prorations, the Title Policy premium, all escrow fees and recording charges, and all other closing costs.
c. Seller and Buyer shall each deposit such other instruments as are reasonably required by the Title Company or otherwise required to close the escrow and consummate the purchase and sale transaction in accordance with the terms hereof. Seller and Buyer hereby designate Title Company as the “Reporting Person” for the transaction pursuant to Section 6045(e) of the Internal Revenue Code and the regulations promulgated thereunder and agree to execute such documentation as is reasonably necessary to effectuate such designation. d. Buyer shall be solely responsible for paying the following costs associated with the transfer of the Property: (i) the premium for the Title Policy, including any endorsements; (ii) all escrow fees and recording charges, (iii) Buyer’s customary share of other normal prorations; (iv) all other closing costs; and (v) all of Buyer’s due diligence expenses.
Seller shall be solely responsible for paying the following costs associated with the transfer of the Property: (i) documentary transfer taxes and (ii) Seller’s customary share of normal prorations.
e. Ad valorem taxes and assessments levied, assessed or imposed on the Property for any period prior to the Closing, if any, shall be paid by Seller. Ad valorem taxes and assessments levied, assessed or imposed on the Property for the period after the Closing shall be paid by Buyer.
7. Default and Remedies.
7.1 General. The failure by any party to perform any obligation under this Agreement or the Development Agreement, if the failure has continued for a period of thirty (30) days after the other party demands in writing that the defaulting party cure the failure, shall be deemed a default hereunder. If, however, by its nature the failure cannot be cured within thirty (30) days, the defaulting party may have a longer period as is necessary to cure the failure, in any event not to exceed sixty (60) days, provided, however, such extended cure period shall be conditioned upon the defaulting party promptly commencing to cure within the thirty (30) day period and thereafter diligently completing the cure.
7.2 Remedies Upon Default. Upon the occurrence of an event of uncured default by Buyer, Seller, subject to the terms of this Agreement, shall be entitled to retain the Good Faith Deposits as liquidated damages.
a. Upon the occurrence of an event of uncured default by Seller, Buyer may either institute an action for specific performance or other equitable relief to compel sale of the 12 Property to Buyer on the terms set forth herein or Buyer may opt to terminate this Agreement by written notice to Seller in which case the Good Faith Deposits previously deposited into escrow by Buyer shall be immediately returned to Buyer upon unilateral demand to the Title Company or by Seller, if such amounts have previously been released to Seller. b. Except as otherwise provided herein, neither party shall be entitled to any monetary damages, and each party hereby waives any and all rights to recover consequential or special damages arising directly or indirectly from a breach of this Agreement by the other party.
8. Miscellaneous.
8.1 Notices. Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) by certified mail, postage prepaid, return receipt requested, or (b) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be addressed as follows:
To Seller: City of Pacifica
130 Avram Avenue
Pacifica, California 94608-3517
Attention: City Manager
With a copy to: Burke Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, California 94612
Attention: Michelle Marchetta Kenyon
To Buyer: Breakwater Crespi, LLC
Attention: Eamon Murphy and Brendan Murphy
With a copy to:
To Title:
Brown, Gee & Wenger LLP
200 Pringle Avenue, Suite 400
Walnut Creek, California 94596
Attention: Michael K. Brown
North American Title Company
711 Main Street
Half Moon Bay, California 94019
Attention: Kim Gilmore
13 or to such other address as either party may from time to time specify in writing to the other party. Any notice shall be effective only upon delivery or refusal to accept delivery by the intended recipient.
8.2 Assignments; Successors and Assigns. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, except that Buyer may assign its rights and obligations to an affiliate or subsidiary wholly controlled by Buyer. Subject to the provisions of this Section 8.2, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. No assignment shall release the assigning party from its obligations or liabilities hereunder accruing prior to the date of such assignment.
8.3 Right of Entry. Prior to the Effective Date, Seller has provided, and after the Effective Date shall continue to provide, Buyer with reasonable access to the Property and the records of Seller relating thereto. Without limiting the foregoing, prior to any entry to perform any invasive on-site testing, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing.
Seller or its representative may be present to observe any testing (whether or not invasive) or other inspection performed on the Property. Buyer shall maintain, and shall assure that its contractors maintain public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Buyer shall indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney’s fees), arising out of or relating to any entry on the Property by Buyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement. Buyer agrees to keep the Property free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Buyer or Buyer’s agents, employees or contractors with respect to any inspection or investigation of the Property.
If any such lien at any time shall be filed, Buyer shall cause the same to be discharged of record within ten (10) days thereafter by satisfying the same or, if Buyer, in its discretion and in good faith determines that such lien should be contested, by recording a bond or providing title insurance insuring over such lien. Failure by Buyer to discharge or bond over or provide title insurance over such lien shall be a material breach of this Agreement and Seller may terminate this Agreement and pursue such other rights and remedies against Buyer as may be available at law or in equity. Buyer’s indemnity obligations under this 8.3 shall survive the Closing or other termination of this Agreement.
8.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its choice of laws rules.
8.5 Interpretation of Agreement. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. The article, section and other headings of this Agreement are for 14 convenience of reference only and shall not be construed to affect the meaning of any provision contained herein. Where the context so requires, the use of the singular shall include the plural and vice versa and the use of the masculine shall include the feminine and the neuter. The term “person” shall include any individual, partnership, joint venture, corporation, trust, unincorporated association, any other entity and any government or any department or agency thereof, whether acting in an individual, fiduciary or other capacity. The words “include” and “including” shall in all instances be interpreted as though followed by the words “without limitation.”
8.6 Amendments. This Agreement may be amended or modified only by a written instrument signed by Buyer and Seller and duly authorized by the City Council.
8.7 No Partnership. The relationship of the parties hereto is solely that of seller and buyer with respect to the Property and no joint venture, other partnership or agency relationship exists between the parties hereto. Neither party has any fiduciary relationship hereunder to the other.
8.8 No Third Party Beneficiary. The provisions of this Agreement are not intended to benefit any third parties.
8.9 Limitation of Liability. Buyer acknowledges and agrees that no member, official or employee of Seller shall be personally liable to Buyer, or any successor in interest, in the event of any default or breach by City, or for any amount which may become due to Buyer or its successors, or on any obligations under the terms of this Agreement.
8.10 Recordation; Actions to Clear Title. Prior to Closing, Buyer shall not record this Agreement, any memorandum of this Agreement, any assignment of this Agreement or any other document which would cause a cloud on the title to the Property. If Buyer fails to complete its purchase of the Property for any reason, or if this Agreement shall terminate for any reason not solely due to Seller’s default hereunder, then Buyer, at no cost to Seller, shall promptly execute, acknowledge and deliver to Seller, all within thirty (30) days after written request from Seller, a quitclaim deed, in recordable form, in favor of Seller, and any other documents requested by Seller to remove any cloud on title to the Property that may exist as the result of the existence of this Agreement or any escrow relating to this Agreement. In the event Buyer fails to so execute and deliver any such document, Buyer shall pay all losses, damages, costs and expenses, including, but not limited to, Seller’s reasonable attorneys’ fees, incurred in connection with Buyer’s breach of its obligations under this Section including interest, carrying costs associated with the Property from the date of Buyer’s failure to comply with this Section and costs of clearing any such cloud on title.
8.11 Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, to any extent shall be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and in no way shall be affected, impaired or invalidated thereby; except that if the court which determines the provision to be invalid also 15 determines such provision to be of such materiality as to make enforcement of the remaining terms inequitable, then this Agreement shall terminate.
8.12 Waiver of Covenants, Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise under this Agreement shall not invalidate this Agreement, nor shall it be considered a waiver by it of any other covenant, condition or promise under this Agreement. The waiver by either or both parties of the time for performing any act under this Agreement shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and the provision in this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded.
8.13 Termination. This Agreement may be terminated: (a) by Buyer, if prior to expiration of Buyer’s Due Diligence Period, Buyer elects not to proceed with purchase of the Property; (b) by Buyer, if prior to Closing, Buyer’s Conditions Precedent to Conveyance have not been satisfied or waived; (c) by Seller, if prior to Closing, Seller’s Conditions Precedent to Conveyance have not been satisfied or waived; or (d) if there is an uncured default, by written notice from the party not in default. The party wishing to terminate the Agreement must provide the other party with written notice of termination. In the event of termination by Seller due to Buyer’s failure to satisfy Seller’s Conditions Precedent to Closing or Buyer’s default, the Good Faith Deposits shall be retained by Seller as liquidated damages.
8.14 Time. Time is of the essence in the performance of each of the parties’ respective obligations contained herein.
8.15 Entire Agreement. This Agreement contains all representations, warranties and covenants made by Buyer and Seller and constitutes the entire understanding between the parties hereto with respect to the subject matter hereof.
8.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
8.17 Exhibits. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement.
8.18 Force Majeure. A force majeure event shall mean delay that a party could not reasonably have been expected to avoid and which by exercise of due diligence have been unable to overcome caused by: acts of God, war, fire, earthquake, windstorm, flood or other natural catastrophe, civil disturbance or disobedience, labor disputes, vandalism, sabotage, terrorism, or restraint by order of a court or administrative agency with jurisdiction. A party’s financial inability to perform or obtain financing or adverse economic conditions generally shall not be grounds for claiming a force majeure event.
[SIGNATURES ON FOLLOWING PAGE]
16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
SELLER:
City of Pacifica
Dated: _______________ By:
Kevin Woodhouse, City Manager
ATTEST:
By:
Sarah Coffey, City Clerk
APPROVED AS TO FORM:
By:
Michelle Marchetta Kenyon, City Attorney
BUYER:
Breakwater Crespi, LLC, a California limited liability
company
Dated: _______________, 2025 By:
Name:
Its:
EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
[to be inserted]
EXHIBIT B-1
EXHIBIT B
FORM OF GRANT DEED
RECORDING REQUESTED BY
______________ Title Insurance Company
AND WHEN RECORDED MAIL TO:
____________________________
____________________________
Attention: ___________________
(Space Above This Line for Recorder’s Use Only)
[Exempt from recording fee per Gov. Code § 27383]
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, CITY OF PACIFICA, a California municipal corporation (“Grantor”), hereby grants to , a (“Grantee”), all of Grantor’s right, title, and interest in the real property described in Attachment 1 attached hereto and incorporated herein (“Property”).
GRANTOR:
City of Pacifica
Dated: _______________ By: [FORM – DO NOT EXECUTE]
__________________, City Manager
[signature must be notarized]
ATTEST:
By:
___________________, City Clerk
APPROVED AS TO FORM:
By:
___________________, City Attorney
ACKNOWLEDGMENT
ACKNOWLEDGMENT
State of California )
) ss
County of ___________ )
On , before me,___________________________________________, (Name of Notary)
notary public, personally appeared _________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
ATTACHMENT 1 - EXHIBIT B
ATTACHMENT 1 - EXHIBIT B
PROPERTY DESCRIPTION
[to be inserted prior to close of escrow]