DocuSign Envelope ID: B2C71F7D-6ADA-4C7D-B061-C2DD3AE30C26
FIRST AMENDMENT TO PURCHASE AND
SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(201 Baden Avenue, South San Francisco, California)
This First Amendment to Purchase And Sale Agreement And Joint Escrow Instructions (this "Amendment") is made effective as of December 14, 2022 ("Effective Date") by and between the City of South San Francisco, a municipal corporation ("Seller") and Eden Housing, Inc., a California nonprofit public benefit corporation ("Buyer"). Seller and Buyer are sometimes collectively referred to herein as "the parties."
RECITALS
A. Seller and Buyer entered into that certain Purchase And Sale Agreement And Joint Escrow Instructions dated November 16, 2021 (the "Agreement") with respect to that certain real property located at 201 Baden Avenue, South San Francisco, California as more particularly described in the Agreement and other associated assets as more particularly described in the Agreement (collectively, the "Property"). A copy of the Agreement and its exhibits are attached hereto as Exhibit A and incorporated herein.
B. Seller and Buyer desire to amend the Agreement to amend the Schedule of Performance, modify certain closing and post-closing obligations, and make other related amendments, as more particularly provided herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and incorporating all of the above as though set forth in full herein and in consideration of all the recitals, conditions and agreements contained herein, the parties hereby agree as follows:
Amendment to Agreement. The parties amend the Agreement as follows:
a. The Buyer's Closing conditions set forth under Agreement Section 6(b)(iii) (vacation of Cypress Avenue and a lot line adjustment), Section 6(b)(iv) (license agreement permitting public parking), and Section 6(b)(v) (purchase agreement with the owner of KFC/Taco Bell site) shall be revised to constitute post-closing obligations under Section 6(f) of the Agreement and survive the Close of Escrow. b. The Seller's Closing conditions set forth under Agreement Section 6(c)(ii) (shared maintenance agreements with Commercial Component Developer), Section 6(c)(iii) (Developer's Financing Plan), Section 6(c)(iv) (purchase agreement with the owner of KFC/Taco Bell site), Section 6(c)(v) (license agreement permitting public parking) and Section 6(c)(vi) (vacation of Cypress Avenue and lot line adjustment) shall be revised to constitute post-closing obligations under Section 6(f) of the Agreement and survive the Close of Escrow.
DocuSign Envelope ID: B2C71F7D-6ADA-4C7D-B061-C2DD3AE30C26
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (201 BADEN AVENUE, SOUTH SAN FRANCISCO, CALIFORNIA)
c. The following post-closing obligations shall be added to Section 6(f) of the Agreement:
i. Section 6(f)(v): Within thirty (30) business days from December 31, 2022, Seller shall have approved the vacation of Cypress Avenue and the lot line adjustment bifurcating the Property into two parcels. ii. Section 6(f)(vi): Seller and Buyer shall have negotiated and executed a license agreement in form reasonably satisfactory to Buyer and Seller to permit public parking on the Property until not less than thirty (30) days prior to the date Buyer is ready to close its construction financing. ili. Section 6(f)(vii): Prior to December 31, 2023, Buyer shall have negotiated and executed a Purchase and Sale Agreement with the owner of the KFC/Taco Bell site at 199 Airport Blvd., South San Francisco for the acquisition of such property. If Buyer is unable to acquire such property prior to December 31, 2023, Seller may require re-conveyance of the Property to City or request construction of a 50-60 unit 1 bedroom senior housing project in accordance with Section 6(h) below. iv. Section 6(f)(viii): Not less than thirty (30) days prior to the date Buyer is ready to close its construction financing, Buyer shall have negotiated and executed any agreements for the shared maintenance, construction or access between Buyer and the Commercial Component Developer that are reasonably determined by Buyer to be necessary. v. Section 6(f)(ix): Within thirty (30) days after executing a Purchase and Sale Agreement with the owner of the KFC/Taco Bell site at 199 Airport Blvd., Buyer shall have submitted to Seller for review a proposed insurance, business and financing plan for the development of the Property, which shall include a pro forma reasonably acceptable to Seller and anticipated source and/or proof of construction loan necessary to reasonably complete the development of the Property. Such proof of construction loan may be a letter of interest from a bank referencing interest in the project and verifying interest rates for the project ("Developer's Financing Plan").
d. Section 6(h) shall be added to the Agreement to read as follows:
The parties acknowledge that acquisition of the KFC/Taco Bell site located at 199 Airport Boulevard, South San Francisco ("KFC/Taco Bell Site") is not in either Seller or Buyer's control; therefore, the parties agree that if Buyer is able to acquire the KFC/Taco Bell Site on or before December 31, 2023, then Buyer shall proceed with developing an 82-unit senior housing project with a ground floor restaurant and drive thru. If Buyer is unable to negotiate and execute a Purchase and Sale Agreement to acquire the KFC/Taco Bell Site on or before December 31, 2023, then, at its sole
DocuSign Envelope ID: B2C71F7D-6ADA-4C7D-B061-C2DD3AE30C26
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (201 BADEN AVENUE, SOUTH SAN FRANCISCO, CALIFORNIA)
discretion within one (1) year from said date, Seller may either require Buyer to re-convey the Property to Seller in accordance with Section 6(g) of the Agreement and Seller may re-enter and take possession of the Property or any portion thereof with all improvements thereon without payment or compensation to Buyer, or request Buyer to proceed with developing a 50-60 unit 1 bedroom senior housing project at the Property.
If Buyer does not agree to proceed with such project, Buyer shall re-convey the Property to Seller as described above.
e. The Schedule of Performance shall be amended as shown in Exhibit B, attached hereto and incorporated herein.
General Provisions. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Amendment and the meaning of the provisions hereof. The provisions of this Amendment shall be construed as to the fair meaning and not for or against any party based upon any attribution of such party as the sole source of the language in question. Except as expressly amended pursuant to this Amendment, the terms and provisions of the Agreement shall remain unmodified and shall continue in full force and effect, and Buyer and Seller hereby ratify and affirm all their respective rights and obligations under the Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Agreement. In the event of any conflict between this Amendment and the Agreement, this Amendment shall govern. The terms and provisions of this Amendment, together with the Agreement, shall constitute all of the terms and provisions to which Buyer and Seller have agreed with respect to the transaction governed hereby, and there are no other terms and provisions, oral or written, that apply to the Agreement and/or the Property other than as set forth in the Agreement as modified by this Amendment. The provisions of this Amendment shall apply to, be binding upon, and inure to the benefit of the parties hereto and to their respective successors and assigns.
This Amendment may be executed in multiple counterparts, all of which shall constitute an original, and all of which together shall constitute a single instrument. Counterparts of this Amendment executed and delivered by facsimile, email or other means of electronic delivery shall constitute originals for all purposes.
SIGNATURES ON FOLLOWING PAGE
DocuSign Envelope ID: B2C71F7D-6ADA-4C7D-B061-C2DD3AE30C26
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (201 BADEN AVENUE, SOUTH SAN FRANCISCO, CALIFORNIA)
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date.
SELLER:
CITY OF SOUTH SAN FRANCISCO
- DocuSigned by:
y: Suaron kay Ranal:
City Manager
ATTEST:
DS
- DocuSigned by:
october 19, 2023 1 2:09:57 PM Par
By: Rosa Gova Acosta
Goitys Coberk™
APPROVED AS TO FORM:
• DocuSigned by:
Skyswoodruff
City Attorney
BUYER:
EDEN HOUSING, INC.,
a California nonprofit public benefit
corporation
-DocuSigned by:
BY AS Stan
Amere good
Chief Real Estate Development Officer
5248270.1