DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS ("this Agreement"') is entered into as of November 22, 2021 | 7:01:22 PM PST Cheer tireD), by rehouse Work, LC, a Satomi limited fairy company bayer).
RECITALS
A.
335-110, and the portion of Cypress Street that is to be vacated, with a combined lot size of 22,500 square feet, collectively and commonly known as the "Old Firehouse Parcel" B. On March 4, 2019, pursuant to a solicitation process, Seller entered into an Exclusive Negotiating Rights Agreement ("ENRA") with Buyer and a separate residential project developer, which authorized the parties to commence negotiating the terms of purchase agreements relating to the rehabilitation of the Old Firehouse and construction of a mixed- use residential and commercial development on the Old Firehouse Parcel.
C. Specifically, the proposed development will consist of Buyer rehabilitating the existing Old Firehouse structure into a 9,200 square foot commercial space, preserving its historical significance (the "Commercial Project"), and the residential component developer constructing approximately eighty-two (82) deed-restricted affordable housing residential units along with a commercial condo on the ground floor.
D. To facilitate this proposal, the Old Firehouse Parcel is to be bifurcated into two separate parcels (to be identified as APNs 012-335-100 and 012-335-110), which are to be effectuated through a lot line adjustment to be completed by Buyer after the execution of this Agreement and the vacation of Cypress Street to be prepared by Buyer and approved by Seller prior to opening escrow as described in further detail below, with APN 012-335- 100 containing the Old Firehouse ("Property"). These parcels will be sold to each developer in separate transactions for their respective projects and each developer would be responsible for entitling and developing their respective projects.
E. Between 2019 and 2021 and most recently in May 2021, the ENRA was administratively extended and amended several times to extend its terms and, among other things, to replace the developer for the residential component of the proposed development on the Old Firehouse Parcel. In consideration for the right to exclusively negotiate under the ENRA, Buyer has previously remitted to Seller a deposit in the amount of Fifty Thousand Dollars ($50,000), which is to be deposited into escrow and credited towards Buyer's ultimate purchase price for the Property as provided herein.
- 1 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 F. In addition to the Deposit, Buyer also remitted to Seller an initial payment in the amount of Thirty Thousand Dollars ($30,000) in immediately available funds ("Payment") in connection with the ENRA, which was subsequently drawn upon to reimburse Seller for work performed in connection with the ENRA. Seller has deposited the Payment in an interest bearing account of Seller and any interest, when received by Seller, will become part of the Payment. The Payment may be drawn upon by Seller to reimburse staff, City Attorney, and City consultant costs as provided herein but is not to be applied towards the ultimate purchase price for the Property.
G. The ENRA contemplates the Seller, Buyer and the residential component developer to negotiate two (2) separate purchase agreements in order for Buyer and the residential component developer to pursue land use entitlements for the Commercial Project and the proposed residential development, respectively, and to acquire the bifurcated parcels respectively for such purposes.
H. Buyer agrees to purchase the Property to construct the Commercial Project, 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.
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 twenty five thousand dollars ($1,025,000.00). The Purchase Price shall be paid in cash at the Close of Escrow ("Closing") to Seller.
2.3 Approval; CEQA Compliance. The Parties acknowledge and agree that the execution of this Agreement does not constitute Seller's approval or issuance of any entitlements or permits for the development of the Property or construction of the Commercial Project and does not relieve Buyer from its obligations to apply for and obtain all such approvals, entitlements and permits. Further, the execution of this Agreement is subject to compliance with the California Environmental Quality Act ("CEQA") and does not constitute any approval or determination by Seller thereunder. Buyer acknowledges that Seller is responsible as the lead agency as defined by CEQA to complete all environmental analysis and determination required by CEQA. Seller agrees to consider all applicable exemptions under CEQA in good faith.
2.4 Schedule of Performance. The Parties have collaborated on an anticipated project milestone schedule attached hereto and incorporated herein as Exhibit D ("Schedule of - 2-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 Performance"). The Parties agree this Schedule of Performance constitutes the reasonable estimates of the timing of performance for actions associated with this Agreement and development of the Property, and agree to adhere to the Schedule of Performance as much as reasonably possible.
Any extension of time from the dates set forth in the Schedule of Performance shall require approval as provided in Section 13.18 below. However, in no event shall a failure by either Party to meet any timeline under the Schedule of Performance constitute a default under this Agreement as long as diligent efforts were made towards meeting such timelines.
3. ESCROW.
3.1 Escrow Account. Buyer has opened an interest-bearing escrow account (the "Escrow") maintained by Ticor Title Company in Newport Beach, California (the "Escrow Holder"), with interest accruing to the benefit of Buyer. Buyer shall be responsible for all Escrow fees and costs. 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. Escrow shall not open until Seller and Buyer have satisfied all of their respective obligations as set forth below. The date that is the later of the following to occur shall be deemed (a) Buyer shall have obtained all required Planning entitlements from the Seller for the development of the Property.
(b) Buyer shall have submitted a draft Developer's Financing Plan (as defined in Section 5.2(e) below) to Seller for review not later than forty-five (45) days prior to Seller's consideration of entitlements for the development of the Property. (c) Buyer shall have submitted an application for building permits to develop the Property to Seller for review.
(d) Buyer shall have, with reasonable cooperation from Seller, submitted all documents, material and maps and undertaken all actions applicable and necessary for Seller to approve, and Seller shall have approved the vacation of Cypress Avenue. (e) Buyer shall have, with reasonable cooperation from Seller, prepared all documents, materials and maps and undertaken all actions necessary to complete a lot line adjustment bifurcating the Old Firehouse Parcel into two parcels as contemplated in the ENRA.
3.3 Buyer's Reimbursement for City Administrative Costs. During the term of this Agreement, Buyer shall reimburse Seller for all staff and City consultant time incurred in completing the obligations that relate to the purchase and conveyance of the Property. The Parties acknowledge that Buyer has previously remitted to Seller an initial payment in the amount of Thirty Thousand Dollars ($30,000) in immediately available funds (Payment") in connection with the ENRA as most recently amended on May 28, 2021, which Payment was subsequently drawn upon to reimburse Seller for work performed in connection with the ENRA and subsequent amendments.
Seller has deposited the Payment in an interest bearing account of Seller and any interest, when - 3-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 received by Seller, will become part of the Payment. The Payment shall be drawn down by Seller to reimburse staff, City Attorney, and City consultant costs for completing the obligations that relate to the purchase and conveyance of the Property to Buyer, at the rates most recently approved by City Council in the City's master fee schedule or under contract. Should the full amount of the Payment be exhausted prior to Closing, Buyer shall replenish the Payment amount with additional funds necessary to reimburse such staff, City Attorney and consultant costs. Documentation of City's rate schedule for staff, staff time spent, and consultant costs shall be retained by Seller and provided to Buyer upon request. The Payment shall not be applied towards the Purchase Price at Closing and any unused portion of the Payment shall be refunded to Buyer within thirty (30) days after the completion of all Closing or post-Closing obligations, as applicable.
3.4. Buyers Deposit. The Parties acknowledge that Buyer, in consideration for the right to exclusively negotiate under the ENRA, previously remitted to Seller a deposit in the amount of Fifty Thousand Dollars ($50,000) (the "Deposit") pursuant to section 5(a) of the ENRA as most recently amended. Within three (3) business days after the Opening of Escrow, Seller shall deliver the Deposit into Escrow with Escrow Holder on behalf of Buyer. If Buyer does not issue a Disapproval Notice (as defined in Section 3.5 below), Buyer shall deposit an additional fifty thousand dollars ($50,000.00) in Escrow (the "Additional Deposit"). The Deposit and Additional Deposit are sometimes collectively referred to herein as the "Deposits." The Deposits shall become non-refundable regardless of whether Buyer has issued a Disapproval Notice except in the event of Seller's default under this Agreement. The Deposits shall be applied towards the Purchase Price at Closing if Buyer does not terminate this Agreement pursuant to Section 3.5.
3.5. Satisfaction of Due Diligence Contingency. Buyer shall have the right, in its sole discretion, to terminate this Agreement for any reason at any time prior to the expiration of the Due Diligence Contingency Period (as defined in Section 5.2 (a) below) by providing written notice Without limiting the generality of the foregoing, Buyer's reasons for terminating this Agreement may include: (i) Seller approves entitlements for the development of the Property that are not satisfactory to Buyer in Buyer's sole discretion; (ii) Seller requires any portion of the Property be committed to retail uses; (il) Seller does not approve a parking reduction for the Commercial Project based on the project's proposed Transportation Demand Management (TDM) Plan, or Seller requires shared parking; or (iv) Seller rejects the proposed parking layout, and elimination of existing on-street parking and vehicle ingress and egress routes to the parking spaces from Second Lane, South San Francisco as depicted on the submitted plans during the pre- application process attached hereto as Exhibit C. Buyer hereby agrees to provide written notice to Seller prior to the expiration of the Due Diligence Contingency Period if Buyer elects to terminate this Agreement pursuant to this Section 3.5 ("Disapproval Notice"). If Buyer provides a Disapproval Notice to Seller before 11:59 p.m. on the last day of the Due Diligence Contingency Period, this Agreement shall terminate, and Seller shall retain the Deposit, 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 Disapproval 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 approved all such items, matters or documents, and this Agreement shall not terminate.
4. PROPERTY DISCLOSURE REQUIREMENTS.
Condition of Title/Preliminary Title Report. Escrow Holder shall deliver a Preliminary Title Report for the Old Firehouse Parcel (the "First Preliminary Report") to Buyer - 4 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 within three (3) days after the Effective Date. After Buyer and Seller have undertaken all actions necessary for the vacation of Cypress Avenue and completion of the lot line adjustment bifurcating the Old Firehouse Parcel into two parcels as described in Section 3.3, Buyer shall deliver to Escrow Holder and Escrow Holder shall furnish Seller with evidence that the lot line adjustment has been completed and, if elected by Buyer at Buyer's own expense, Escrow Holder shall delivery a second Preliminary Title Report for the Property as a separate parcel ("Second Preliminary Report").
Buyer shall have until the end of the Due Diligence Contingency Period to approve the condition of title to the Property. If Buyer does not deliver the Disapproval Notice, Buyer agrees to take title to the Property subject to the following "Permitted Exceptions": (a) standard printed exceptions in the First and Second Preliminary Reports (if Second Preliminary Report is provided); and (b) general and special real property taxes and assessments constituting a lien not yet due and payable. 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 Seller. Seller, at Buyer's expense, agrees to reasonably 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 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") shall occur within ten (10) business days after Buyer has satisfied all conditions to closing as described below ("Closing Date") or such other date that the Parties agree in writing. Notwithstanding the foregoing, the Closing Date shall not occur later than December 31, 2022.
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 Opening of Escrow (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 - 5-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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 (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) Buyer shall have obtained all necessary entitlements and have submitted all necessary documents and resolved all Seller edits and comments thereto, that are necessary for Seller to issue a building permit for the development of the Property. (f) Buyer shall have negotiated and executed any agreements for the shared maintenance, construction or access between Buyer and the residential component developer that are reasonably determined by Buyer to be necessary. (g) Seller shall have approved the vacation of Cypress Avenue and the lot line adjustment bifurcating the Property into two parcels.
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 the final insurance, business and financing plan for the development of the Property, which shall include a pro forma and ubstantially final financing terms contained in a financing commitment letter that confirms to the seller's reasonable satisfaction the financial feasibility of Buyer's development of the Proiec ("Developer's Financing Plan") to Seller for approval.
(b) Buyer shall have submitted all necessary documents and resolved all Seller edits and comments thereto, that are necessary for Seller to issue a building permit for the development of the Property.
(c) Buyer has performed all obligations to be performed by Buyer pursuant to this Agreement before Closing Date.
(d) Buyer's representations and warranties set forth herein are true and correct in all material respects as of the Closing Date. - 6-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 (e) Seller shall have approved the vacation of Cypress Avenue and the lot line adjustment bifurcating the Property into two parcels.
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", "where is," and "with all faults" condition, with no warranty, express or implied, by Seller as to the physical condition including, but not limited to, the soil, its geology, or the presence of known or unknown faults or Hazardous Materials or hazardous waste (as defined by Section 12); provided, however, that the foregoing shall not relieve Seller from disclosure of any such conditions of which Seller has actual knowledge.
5.5 Deliveries at Closing.
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 Deposits is equal to: (i) the Purchase Price as adjusted by any prorations between the Parties; (i) the escrow fees and recording fees; and (il) 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 and all expenses associated with obtaining title insurance and report, except that Seller agrees to furnish a property owner's affidavit necessary for Buyer to acquire title insurance coverage. Buyer shall also pay all other Closing costs including but not limited to any applicable transfer taxes and governmental conveyance fees.
(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.
- 7 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896
5.6 Post-Closing Obligations. The following obligations shall survive the Close of Escrow:
(a) Permits. Buyer shall take all necessary actions for building permits to be issued to Buyer for the development of the Property within twenty (20) business days following the Close of Escrow. Buyer shall pay all applicable permit fees, development fees, planning and engineering department fees, and administrative fees and costs associated with obtaining permits and entitlements in accordance with the most recent City Master Fee Schedule adopted by the City Council.
Developer's Financing Plan. Seller shall have approved (which approval shall not be unreasonably withheld, conditioned or delayed) the Developer's Financing Plan submitted by Buyer pursuant to Section 5.3 above.
Seller shall have received for its review the construction contract for Buyer's development of the Property (the "Construction Contract"). (c) Commence Work. Buyer shall commence work to develop the Property in accordance with the Schedule of Performance under Exhibit D.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 Seller's Representations, Warranties and Covenants. In addition to the representations, warranties and covenants of Seller contained in other sections of this Agreement, Seller hereby represents, warrants and covenants to Buyer that the statements below in this Section
6.1 are each true and correct as of the Effective Date and 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. 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 First and Second Preliminary Reports (if Second Preliminary Report is provided). 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.
Agreements. 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 - 8 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 Buyer or the Property after the Close of Escrow, which cannot be terminated on thirty (30) days prior written notice.
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, govermental investigation or proceeding pending or, to Seller's knowledge, threatened against the Property or (t) 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.
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 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 (it) 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 (ili) 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.
(i) 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 - 9-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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.
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.
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.
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.
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 tate 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, il 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. - 10-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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.
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, (Vil) the presence or removal of Hazardous Materials, substances or wastes on, under or about the Property or the adjoining or neighboring property; (vili) 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 - 11 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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. •D$ -DS DS MF
DM DS
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. Each Party shall indemnify, hold harmless and defend the other Party from any and all Claims and Losses for any breach of the preceding sentence, and any commission, finder's fee, or similar charges arising out of the same.
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. 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.
- 12 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896
10. INDEMNIFICATION; ENVIRONMENTAL INDEMNITY.
10.1 Indemnification. 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 (collectively "Seller Indemnitees"), harmless from any and all third party claims, liabilities, damages and costs (including reasonable attorney's fees) arising out of or in connection with Buyer's performance under this Agreement, except to the extent that such claims, liabilities, damages and costs are attributable to Seller's negligence or willful misconduct or to a condition of the Property in existence prior to Closing.
10.2 Environmental Indemnity. In addition to Section 10.1 above, to the fullest extent allowed by law, Buyer agrees to unconditionally and fully indemnify, protect and defend (with counsel satisfactory to Seller) the Seller Indemnitees harmless from and against any and all claims (including without limitation third party claims for personal injury, real or personal property damage, or damages to natural resources), actions, administrative proceedings (including without limitation both formal and informal proceedings), judgments, damages, punitive damages, penalties, fines, costs (including without limitation any and all costs relating to investigation, assessment, analysis or clean-up of the Property), liabilities (including without limitation sums paid in settlements of claims), interest, or losses, including reasonable attorneys' and paralegals' fees and expenses (including without limitation any such fees and expenses incurred in enforcing this Agreement or collecting any sums due hereunder), together with all other costs and expenses of any kind or nature (collectively, the "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 - 13 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 whatsoever, direct or indirect, known or unknown, foreseen or un foreseen, 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.
BY INITIALING BELOW, BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE:
• DS
DM
Buyer's initial
• DS 0S
12. HAZARDOUS MATERIALS; DEFINITIONS. DS
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", intectious 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 - 14-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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 seg.), 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 seg.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seg.), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal. Health and Safety Code, Section 25300 et seq.).
13. MISCELLANEOUS.
13.1 Attorneys' Fees. If any party employs counsel to enforce or interpret this Agreement, including the commencement of any legal proceeding whatsoever (including insolvency, bankruptcy, arbitration, mediation, declaratory relief or other litigation), the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs (including the service of process, filing fees, court and court reporter costs, investigative fees, expert witness fees, and the costs of any bonds, whether taxable or not) and shall include the right to recover such fees and costs incurred in any appeal or efforts to collect or otherwise enforce any judgment in its favor in addition to any other remedy it may obtain or be awarded. Any judgment or final order issued in any legal proceeding shall include reimbursement for all such attorneys' fees and costs. In any legal proceeding, the "prevailing party" shall mean the party determined by the court to most nearly prevail and not necessarily the party in whose favor a judgment is rendered.
13.2 Interpretation. This Agreement has been negotiated at arm's length and each party has been represented by independent legal counsel in this transaction and this Agreement has been 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.
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 - 15-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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 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: Firehouse Work LLC
211 Linden Ave
South San Francisco, CA 94080
Attn: Dawn Merkes
Email: [email protected]
Telephone No.: (650) 871-0709
With a Copy to: Coblentz Patch Duffy & Bass LLP
One Montgomery Street, Suite 300(
San Francisco. CA 94104
Attn: Frank Petrilli
Email: [email protected]
Telephone No.: (415) 268-0503
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
- 16 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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
1999 Harrison St., 9th Floor
Oakland, CA 94612
Attn: Sky Woodruff
Email: [email protected]
To Escrow Holder: Ticor Title Company of California
1500 Quail Street, 3rd Floor
Newport Beach, CA 92660
Escrow Officer: Dawn Niehaus
Email: [email protected]
Title Officer: David Noble
Title Officer Phone: (714) 289-3379
Title Officer Fax: (949) 809-0676
Title Officer 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 not in ofor permance aily proxiend of to i1:g pem. on fal ner busineday, Sunday or holiday,
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 - 17-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 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 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. Except with respect to entitlements, permits, regulatory and governmental approvals, including but not limited to street vacations contemplated in this Agreement, whenever this Agreement calls for Seller approval, consent, extension or waiver, the written approval, consent, or waiver of the Seller's City Manager 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, provided, however, that the anticipated Schedule of Performance may be administratively extended for two (2) six (6) month periods and any subsequent extensions shall require approval by the City Council. Prior to Seller granting any extensions, Buyer shall pay Five Thousand Dollar ($5,000) per administrative extension and Fifteen Thousand Dollar ($15,000) per extension requiring Council approval, unless otherwise agreed to by the Parties in writing. 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
- 18 -
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
SELLER:
CITY OF SOUTH SAN FRANCISCO
-Docusigned by:
Mike Futrell
By:
Mike Putre
City Manager
ATTEST:
- Docusigned by:
Rosa Gavea Acosta
By:
5906B46FF63F-418.
osa Govea Acos
City Clerk
APPROVED AS TO FORM:
- Docusigned by:
Sky Woodrutt
By:
Sky Worrier
City Attorney
BUYER:
Firehouse Work, LLC
cuSigned by:
By:
105Đ2880204:
Andrea Giffor
Title: Member
-DocuSigned by:
By: Jonattan Hartman
Jonathan Hartman
Title: Member
-Docusigned by:
By: Dawn Merkes
Title: Member
-Docusigned
By: David Schnee
David Schnee
Title: Member
- 19-
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896
LIST OF EXHIBITS
Exhibit A Description of the Property
Exhibit B Form of Grant Deed
Exhibit C Preliminary Plans
Exhibit D Schedule of Performance
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 Exhibit A
DESCRIPTION OF THE PROPERTY
LEGAL DESCRIPTION
THE LAND REFERRED TO IN THIS REPORT IS SITUATED IN THE COUNTY OF SAN MATEO, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
LOTS 26 AND 27, IN BLOCK 141, AS DESIGNATED ON THE MAP ENTITLED "SOUTH SAN FRANCISCO, SAN MATEO CO. CAL.
PLAT 1", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, ON MARCH 1, 1892, IN BOOK 2 OF MAPS, PAGE 52, SAN MATEO COUNTY RECORDS.
PERING AT A POINT MARKING THE INTERSECTON OF THE SOUTHWESTERLY LINE OF BADEN AVENUE AND THE SOUTHEASTERLY LINE OF CYPRESS AVENUE, SAID POINT BEING THE MOST NORTHERLY CORNER OF LOT TWELVE (12) IN BLOCK 145, AS SAID AVENUES, LOT, AND BLOCK ARE DESIGNATED ON THE MAP ENTITLED "SOUTH SAN FRANCISCO, SAN MATEO CO. CAL. PLAT NO. 1", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO.
STATE OF CALIFORNIA, ON MARCHI, 1892, IN BOOK B OF MAPS, AT PAGE 6 AND A COPY THEREOF ENTERED IN BOOK 2 OF MAPS, PAGE 52, SAN MATEO COUNTY RECORDS. RUNNING THENCE FROM SAID POINT OF BEGINNING SOUTH 74 ' 27' EAST ALONG SAID LINE OF BADEN AVENUE 50 FEET TO A POINT THEREON; THENCE LEAVING SAID LAST MENTIONED LINE SOUTH 15' 33' WEST 140 FEET; THENCE NORTH 74' 27' WEST 66.44 FEET TO THE SOUTHEASTERLY LINE OF CYPRESS AVENUE ABOVE MENTIOND; THENCE NORTH 22°14' 50"EAST ALONG SAID LAST MENTIONED LINE 140.96 FEET TO THE
BEGINNING AT THE SOUTHWEST CORNER OF THE INTERSECTION OF BADEN AVENUE WTH CYPRESS AVENUE, AS SHOWN UPON THAT CERTAIN MAP ENTITLED: "SOUTH SAN FRANCISCO SAN MATEO CO. CAL. PLAT NO. 1", WHICH MAP WAS FILED IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN MATEO, CALIFORNIA, MARCH 1, 1892, AND RECORDED IN MAP BOOK NO. 2 AT PAGE 52; THENCE. SOUTHERLY ALONG THE EASTERLY LINE OF LOT NUMBERED, TWENTY-SEVEN (27) IN BLOCK NUMBERED ONE HUNDRED FORTY-ONE (141), AS SHOWN UPON SAID MAP, TO THE SOUTHERLY LINE OF SAID
LOT NUMBERED TWENTY SEVEN THENCE EASTERLY AND PARALLEL TO THE SOUTHERLY LINE OF BADEN AVENUE TO THE WESTERLY BOUNDARY LINE OF BLOCK NUMBERED ONE HUNDRED FORTY-FIVE (145); THENCE NORTHERLY ALONG SAID WESTERLY BOUNDARY LINE OF SAID BLOCK NUMBERED ONE HUNDRED FORTY-FIVE (145) TO THE SOUTHERLY BOUNDARY LINE OF BADEN AVENUE; THENCE WESTERLY ALONG THE SOUTHERLY BOUNDARY LINE OF BADEN AVENUE TO THE POINT OF DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 Exhibit B
FORM OF 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):
computed on full value of
pOpe NAY, or Are Ail value less value of liens or Contrances remaining al 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 , described on Exhibit A attached hereto and made a part hereof.
GRANTOR:
→ a
By:
Its:
Date:
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 [Exhibit A and notarial acknowledgement to be attached] DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 Exhibit C
PRELIMINARY PLANS
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 12'7
FACE OF CUI
18'
DocuSign Envelope ID: B8F6030E-5524-4A02-BCCE-726CD5172896 Exhibit D
SCHEDULE OF PERFORMANCE
1 Submit Planning Application and Street Within 30 calendar days of the Effective Date of Vacation Application Submittals the Purchase Agreement
2 Provide Draft Financing Plan No later than 45 calendar days prior to Planning Commission Hearing on Entitlement Approvals
3 Submit Application for Building Permit
No lateen 30 us as dan flowing date all
4 Escrow Open 1 day following Building Permit submittal 5 Submit Final Financing Plan Prior to Closing
6 Close of Escrow No later than December 31, 2022
Pull Building Permit and Pay Required Fees Within 20 business days after Closing 8 Deliver Construction Contract Within 20 business days after City issues building permit
9 Commence Construction Within 3 months after City issues building permit 10 Substantial Completion of Construction Within 9 months after commencing construction 5010901.2