AMENDED AND RESTATED LEASE DISPOSITION LEASE DISPOSITION AND DEVELOPMENT AGREEMENT. By and Between THE CITY COLLEGE OF SAN FRANCISCO.

Transcription

1 AMENDED AND RESTATED LEASE DISPOSITION LEASE DISPOSITION AND DEVELOPMENT AGREEMENT By an Between THE CITY COLLEGE OF SAN FRANCISCO an 33 GOUGH, LLC Date as of October 17, 2016January, 2017

2 TABLE OF CONTENTS Page ARTICLE 1. GENERAL: PARTIES, TERM, DEFINITIONS, LEASE, AND PAYMENTS CCSF Developer Site Term of this Agreement Definitions Relationship of this Agreement to Lease Fees....3 ARTICLE 2. DISPOSITION OF LEASEHOLD ESTATE IN THE SITE THROUGH ESCROW Agreement to Lease Escrow Conitions to CCSF s Obligation to Close of Escrow Conitions to the Developer s Obligation to Close Escrow Delivery of the Site Conition of Title to the Site Title Insurance Taxes an Assessments Compliance with Laws ARTICLE 3. AS IS CONDITION OF THE SITE; INDEMNIFICATION Site As Is; Risk of Loss Release Environmental Matters Inemnification ARTICLE 4. ACCESS BY DEVELOPER UPON SITE Access an Entry by the Developer to the Site ARTICLE 5. DEVELOPMENT OF THE SITE Developer s Construction Obligations for All of the Improvements Insurance Requirements for All of the Improvements Governmental Permits for All of the Improvements CCSF s Rights of Access to All of the Improvements Construction Signs an Barriers Damage an Destruction The Construction Documents for the Project Compliance of the Improvements with the Final Construction Documents Preparation of Final Construction Documents/Approval of Architect Submission of Construction Documents Scope of CCSF s Review of Developer s Construction Documents Changes in Final Construction Documents

3 5.13. Construction Document Review Progress Meetings/Consultation Construction Scheule Completion Guaranty Submittals After Completion; As-Built Documents Reports Tax Creits; Grant Funs SMRH Draft ARTICLE 6. DETERMINATION OF COMPLETION Determination of Completion Form an Effect of Certificate Failure to Issue ARTICLE 7. ENCUMBRANCES AND LIENS No Mortgage Except Uner the Lease Leasehol Liens Mechanics Liens ARTICLE 8. ASSIGNMENT AND TRANSFER Prohibition Against Transfer of the Agreement or Significant Change Effect of Violation ARTICLE 9. DEFAULTS, REMEDIES AND TERMINATION Before Close of Escrow Events of Default - Developer Replacement of Guarantor Remeies of CCSF Events of Default CCSF Remeies of Developer General Litigation Plans an Data Return of Site Mitigation Measures ARTICLE 10. GENERAL PROVISIONS [Reserve] Force Majeure Extension of Time of Performance Notices [Reserve] Time of Performance Interpretation of Agreement Successors an Assigns No Thir Party Beneficiaries Real Estate Commissions Counterparts Entire Agreement Amenment Governing Law Recoration

4 Extensions by CCSF; Developer Further Assurances Attorneys Fees Relationship of Parties Severability Representations an Warranties of the Developer Representations an Warranties of CCSF Effective Date ARTICLE 11. DEFINITIONS SMRH Draft 3

5 LIST OF ATTACHMENTS Attachment Number Attachment 1 Attachment 2 Attachment 3 Attachment 4 Attachment 5 Attachment 6 Attachment 7 Attachment 8 Attachment 9 Description Legal Description Site Map Form of Groun Lease License to Enter Permitte Title Exceptions Scheule of Performance Scope of Development Form of Memoranum of Lease Form of Completion Guaranty 32632\

6 AMENDED AND RESTATED LEASE DISPOSITION LEASE DISPOSITION AND DEVELOPMENT AGREEMENT THIS LEASE DISPOSITION AND DEVELOPMENT AGREEMENT (this Agreement ) ate for reference purposes as of October 17January, , is by an between the CITY COLLEGE OF SAN FRANCISCO, a [public corporation] ( CCSF ), an 33 GOUGH, LLC, a Delaware limite liability company ( Developer ). RECITALS THIS AGREEMENT is mae with reference to the following facts an circumstances: A. CCSF owns in fee all of that certain real property comprise of approximately 45,600 square feet of lan locate at 33 Gough Street, Block 3504, Lot 029, an improve with an existing structure, in the City an County of San Francisco ( City ). The lan that is the subject of this Agreement is escribe on the attache Attachment 1 an shown on the attache Attachment 2 (the Site ). B. On or about December 12, 2014, CCSF authorize the issuance of a Request for Proposals ( RFP ) regaring reevelopment an reuse of the Site. C. After an extensive evaluation process CCSF etermine that the response of Developer to the RFP warrante entering into exclusive negotiations with Developer. D. CCSF an Developer have entere into that certain Exclusive Negotiating Agreement ate as of December 15, 2015, as the same may from time to time be amene ( ENA ) pursuant to which Developer an CCSF have agree to negotiate ocuments for the evelopment of a mixe-use builing on the Site consisting of street level retail an multi-family resiential units, a minimum of thirty-three percent (33%) of which multi-family resiential units shall be Afforable, as more particularly escribe in Article 11 below, provie that Developer shall have the right, in its sole iscretion, to increase the number of afforable units in the Project above thirty-three percent (33%). E. Developer esires to obtain a long term groun leasehol interest in the Site in orer to evelop, construct an operate the Project.On or about October 17, 2016, the parties entere into a Lease Disposition an Development Agreement of that ate with respect to groun leasing an evelopment of the Site (the Original Agreement ). F. The parties now esire to enteramen an restate in its entirety the Original Agreement by entering into this Amene an Restate Lease Disposition an Development Agreement to set forth the terms an conitions upon which CCSF woul grant a leasehol estate in the Site to the Developer pursuant to a long term groun lease an Developer woul evelop, own an operate the Project. AGREEMENT -1-

7 -2- SMRH Draft ACCORDINGLY, for goo an valuable consieration, the receipt an aequacy of which are hereby acknowlege, the Parties agree as follows: ARTICLE 1. GENERAL: PARTIES, TERM, DEFINITIONS, LEASE, AND PAYMENTS CCSF. CCSF is a [public corporation] Developer. Developer is a Delaware limite liability company Site. The Site is locate in the City an County of San Francisco, an is more particularly escribe in the legal escription (Attachment 1) an on the Site Map (Attachment 2), which Site Map shall be subject to change upon Completion of the Improvements to reflect the location an imensions of the complete Improvements. The Site contains approximately 45,600 square feet of lan Term of this Agreement. The term of this Agreement shall be from the Effective Date until Completion of the Improvements pursuant to Article 6 hereof (the Term ) Definitions. Initially capitalize terms use in this Agreement are efine in Article 11 or have the meanings given them when first efine. Any initially capitalize wors or acronyms use but not efine in this Agreement shall have the same meanings as in the Lease Relationship of this Agreement to Lease. This Agreement (a) provies for an agreement by CCSF to lease the Site to Developer pursuant to the Lease, subject to certain conitions preceent, an (b) controls evelopment of the Site an other Improvements uring the Term. It aresses, among other matters, the Delivery of the Site uner the Lease, the scope of Developer s obligations to esign an construct the Project an obtain Project approvals, an the Scheule of Performance an the Guaranty for those obligations, an financing for construction of the Project by Developer. If the conitions for the Close of Escrow as set forth in Article 2 of this Agreement are satisfie, then CCSF will groun lease the Site to Developer, an Developer will groun lease the Site from CCSF, uner the Lease, which shall be in the same form an substance as Attachment 3 hereto. During the Term of this Agreement, this Agreementthe terms hereof shall control as to the subject matter of this Agreement in the event of any inconsistency between this Agreement an the Lease. Upon Completion by Developer in accorance with the terms of Article 6, this Agreement will terminate, an neither Party shall have any further obligations uner this

8 -3- SMRH Draft Agreement except with respect to provisions hereof that which by their nature survive termination of this Agreement. Completion will be etermine in accorance with Section 6.01 below. From an after Completion, the Lease alone will govern the rights an obligations of the Parties with respect to use an occupancy of the Site Fees. (a) Negotiation Fee. Upon the Effective Date, Developer shall pay to CCSF through the Escrow a non-refunable fee in the amount of Four Hunre Fifty Thousan an No/100 Dollars ($450,000.00)(which, together with the Fifty Thousan Dollar ($50,000) Initial Deposit mae by Developer uner the ENA, is the Negotiation Fee ). In no event shall the Negotiation Fee be refunable to Developer, except in the event of a termination as provie in Section 2.03(b), Section 2.04(b), Section 9.06(a), Section 9.06(c) or Section 9.08 hereof, in which event CCSF shall return the Negotiation Fee an the Initial Deposit mae by Developer pursuant to the ENA to Developer within three (3) business ays following such termination. Upon the Closing, the Negotiation Fee shall be creite against the Initial Payment (as hereinafter efine). (b) Initial Payment. Upon the Close of Escrow, Developer shall pay to CCSF, through Escrow, a non-refunable fee in the amount of Six Million Dollars ($6,000,000) (the Initial Payment ). The Initial Payment shall be non-refunable an fully earne as of the Close of Escrow. At Developer s option, up to seventy five percent (75%) of the Initial Payment plus amounts to fun the cost of the alterations of an improvements to the existing improvements on the Site to permit temporary income-proucing occupancy may be finance by a loan secure by a Mortgage permitte pursuant to Section 7.02, provie the same complies with all applicable requirements relate thereto uner the Lease other than those relating to the loan amount, the interest rate an the ebt service coverage ratio. (c) Subsequent Payment. Following the close of Escrow, Developer shall pay to CCSF the amount of Five Million Dollars ($5,000,000) (the Subsequent Payment ) as require uner the Lease. ARTICLE 2. DISPOSITION OF LEASEHOLD ESTATE IN THE SITE THROUGH ESCROW Agreement to Lease. Subject to satisfaction of all of the applicable conitions to Close of Escrow, CCSF agrees to groun lease the Site to Developer, an Developer agrees to groun lease the Site from CCSF, uner the Lease, which shall be the same in the form an substance as Attachment 3 hereto, for the evelopment an operation of the Project, all in accorance with an subject to the terms, covenants an conitions of this Agreement Escrow. (a) Opening of Escrow. Concurrent with the execution an elivery of this Agreement, Developer shall open an escrow for the Delivery of the Site through the Lease

9 ( Escrow ) with First American Title Company in San Francisco, or the local office of such other title company as the Developer may select an CCSF may fin reasonably satisfactory ( Title Company ), whereupon Developer shall pay to CCSF the Negotiation Fee. Any reference herein to the Close of Escrow or to any other ates set forth in the Scheule of Performance means those ates set forth in the Scheule of Performance attache hereto, as such ates may be extene in accorance with the terms of this Agreement. (b) Joint Escrow Instructions; Closing Date. At such time as Developer is reay to procee with the Close of Escrow, Developer shall give CCSF a written Notice of Intent to Close, notifying CCSF that Developer is reay to procee with Close of Escrow. The Notice of Intent to Close shall ientify a ate for Close of Escrow that is at least ten (10) business ays after the ate of the Notice of Intent to Close. If within five (5) ays after the Notice to Procee, CCSF reasonably objects to the propose ate for the Close of Escrow, then the Parties shall meet an confer to select a reasonable ate for the Close of Escrow; provie, however, such ate shall be within ten (10) ays of the ate originally propose by Developer. For all purposes of this Agreement, Target Date shall mean the ate for Close of Escrow selecte by the Parties pursuant to this Section 2.02(b). In any event, the Close of Escrow shall occur no earlier than ten (10) business ays following the ate all of the conitions preceent escribe in Sections 2.03 an 2.04 are either satisfie or waive by the Party which is benefite by such conition. No later than seven (7) ays prior to the Target Date, the Developer an CCSF shall prepare, execute an submit escrow instructions as are necessary for the Delivery of the Lease an consistent with this Agreement. If the Close of Escrow has not occurre by the ate sixty (60) ays from the Effective DateJanuary 31, 2017, as such ate may be extene by events of natural isaster, civil unrest, terrorism or other events that isrupt business activities an make the closing of the transaction physically or logistically infeasible, but in no event by a perio in excess of one hunre eighty (180) ays (the Outsie Close Date ), other than as a result of the efault by a Party to perform its obligations uner this Agreement, then by notice from one Party to the other, this Agreement shall terminate, an neither Party shall have any further obligations uner this Agreement except as otherwise expressly provie in this Agreement, unless the Parties mutually agree, in their sole an absolute iscretion, to exten the ate for the Close of Escrow in accorance with an instrument signe by both Parties. Notwithstaning the foregoing, if the Close of Escrow cannot reasonably occur within 180 ays as a result of such natural isaster, civil unrest, terrorism or other events, then the Parties shall meet an confer to etermine the mutually acceptable conitions uner which the Close of Escrow can be reasonably extene, in accorance with an instrument signe by both Parties. If the Parties are unable to reach agreement on such mutually acceptable conitions within the following 30 ays, this Agreement shall terminate, an neither Party shall have any further obligations uner this Agreement except as otherwise expressly provie in this Agreement. (c) Recoration of Memoranum of Lease. The joint escrow instructions referre to in Section 2.02(b) above shall provie that the Title Company will recor the Memoranum of Lease in the Official Recors, as well as any other ocuments provie for in this Agreement which are to be recore upon Close of Escrow, as further provie in Section 2.05 below. -4-

10 () Costs of Escrow. CCSF shall not be require to pay any costs or expenses for the Escrow. Developer shall pay all fees, charges, costs an other amounts necessary for the Close of Escrow, incluing, but not limite to, those set forth below: (i) Escrow fees; (ii) the cost of any title reports or surveys an inspections an premiums for all title insurance policies obtaine by Developer; an (iii) recoring fees, if any. Developer shall pay the fees an costs escribe in clauses (i), (ii) an (iii) above promptly after the Title Company notifies Developer that such amounts are payable, but in any event before or concurrent with the Close of Escrow. Developer shall pay any transfer taxes. If the Title Company requires, Developer shall pay into Escrow any fees, costs, charges or other amounts require for the Close of Escrow uner this Agreement Conitions to CCSF s Obligation to Close of Escrow. (a) CCSF s Conitions Preceent. The following are conitions preceent to CCSF s obligation to Close the Escrow an thereby Deliver the Site to Developer: (i) No uncure Event of Default shall exist on the Developer s part uner this Agreement as of the Close of Escrow an all of Developer s representations an warranties mae in Section of this Agreement shall have been true an correct in all material respects as of the Closing Date. At the Closing, Developer shall eliver to CCSF a certificate to confirm the accuracy of such representations an warranties in all material respects as of the Closing. (ii) Developer shall have provie evience reasonably satisfactory to CCSF of Developer s ability to pay the Initial Payment on the Closing Date. Funs place in escrow will constitute aequate evience of the ability to make such payment. In the event that Developer elects to finance a portion of the Initial Payment, CCSF shall have approve the lener for such payment. CCSF s approval of the propose lener for such payment shall not be unreasonably withhel an CCSF hereby approves TDA Investment Group or its Affiliate as a lener. CCSF s failure to give notice to Developer of CCSF s isapproval of such lener within ten (10) business ays following submission by Developer, an its failure to give notice of approval or isapproval within two (2) business ays following the giving of a secon request by Developer shall be eeme to constitute CCSF s approval of the propose lener. If CCSF unreasonably isapproves of the propose lener, then such isapproval shall be eeme a failure of a conition for the benefit of Developer an Developer may, within ten (10) business ays following the giving of CCSF s notice of isapproval, terminate this Agreement pursuant to Section 2.04(b). For purposes of this Subsection 2.03(a)(ii), CCSF shall be eeme reasonable in withholing its approval of a propose lener if such lener is not license to be a lener in California an is not a recognize reputable institution, has previously file for bankruptcy protection, has previously lost its license to be a lener in California or has been convicte of frau or some other criminal offense.

11 or the Lease. (iii) SMRH Draft There shall be no litigation pening with respect to this Agreement (iv) Developer shall have furnishe certificates of insurance or uplicate originals of insurance policies as require by Section (v) Developer shall have submitte into Escrow such evience of authority to enter into the Lease, an this Agreement, an the transactions which the Lease an this Agreement contemplate, as CCSF an the Title Company may reasonably require. (vi) CCSF shall have approve the terms of loan ocuments eviencing the Pre-Construction Financing referre to in Section 37.4(a) of the Groun Lease. (b) Satisfaction or Failure of CCSF s Conitions. The conitions preceent set forth above are intene solely for the benefit of CCSF. If any such conition preceent is not satisfie on or before the ate for the Close of Escrow, subject to the provisions of Section below, CCSF shall have the right, in its sole iscretion, to waive in writing the conition preceent in question an procee with Close of Escrow or to terminate this Agreement by notice to Developer, in which event, within three (3) business ays following receipt of a quitclaim ee to the Site from Developer, CCSF shall pay the Negotiation Fee to Developer Conitions to the Developer s Obligation to Close Escrow. (a) Developer s Conitions Preceent. The following are conitions preceent to Developer s obligation to Close the Escrow, an to accept Delivery of the Site from CCSF: (i) CCSF shall have performe all material obligations uner this Agreement which CCSF is require to perform before the Close of Escrow an no uncure Event of Default shall exist on CCSF s part uner this Agreement. (ii) CCSF shall have approve the evience submitte by Developer of Developer s ability to pay the Initial Payment on the Closing Date; provie that Developer shall have complie with its obligations to submit the foregoing to CCSF for review an approval. or the Lease. (iii) There shall be no litigation pening with respect to this Agreement (iv) The Title Company shall be prepare to issue to Developer, upon payment by the Developer of the premium thereuner, a leasehol policy of title insurance in compliance with the requirements of Section 2.07(a)(i). (v) Developer shall not have exercise its right to terminate this Agreement as a result of a fire or other casualty pursuant to Section 3.01(b) hereof. (vi) CCSF shall have cooperate with Developer s request to take an enabling action as referre to in City Planning Coe Section 211.1(g), by aoption of a Resolution approving the temporary use of the Premises for Commercial, General an Nighttime -6-

12 Entertainment, Institutional an Office uses as efine in the City Planning Coe except for uses prohibite by Section 3.2 of the Lease ( Permitte Temporary Use ) for a three (3)-year perio commencing upon the Close of Escrow an by applying to, or authorizing Developer to apply to, the City Planning Department for a Temporary Use Authorization, as efine in the Planning Coe, for the Permitte Temporary Use. (vii) On or before the Outsie Close Date, Developer shall have obtaine financing acceptable to Developer in its sole an absolute iscretion for a portion of the Initial Payment. Developer may terminate this Agreement by notice to CSF given on or before the Outsie Close Date if this conition is not satisfie, in which event this Agreement shall be eeme terminate an, notwithstaning anything to the contrary in this Agreement, CCSF shall, within three (3) business ays following Developer's notice of termination an receipt an recoration of the quitclaim ee referre to in Section 2.04(b) hereof, cause the Title Company to isburse Three Hunre Fifty Thousan Dollars ($350,000) from the Negotiation Fee to Developer from the Escrow an the remainer of the Negotiation Fee to CCSF. (b) Satisfaction or Failure of the Developer s Conitions Preceent. The conitions preceent set forth above are intene solely for the benefit of the Developer. If any such conition preceent is not satisfie on or before the Close of Escrow, subject to the provisions of Section below, the Developer shall have the right, in its sole iscretion, to waive in writing the conition preceent in question an procee with the Close of Escrow or to terminate this Agreement by notice to CCSF an elivery an recoration of a quitclaim ee terminating any interest of Developer in the Site an within three (3) business ays following such notice of termination an recoration, CCSF shall pay the amount of the Negotiation Fee, or such lesser amount pursuant to Section 2.04(a)(vii), to Developer Delivery of the Site. (a) Parties Obligation to Close Escrow. Provie that the conitions preceent to CCSF s obligations with respect to Delivery of the Site as set forth in Section 2.03 above an the conitions preceent to Developer s obligations with respect to Close of Escrow an acceptance of the Delivery of the Site as set forth in Section 2.04 above have been satisfie or, to the extent any such conitions preceent are not satisfie, such unsatisfie conition(s) preceent are expressly waive in writing by the benefite Party on or before the Outsie Close Date, CCSF an Developer shall instruct the Title Company to complete the Close of Escrow, as set forth below. Upon the Close of Escrow, CCSF shall Deliver the Site to Developer, an Developer shall accept the Delivery of the Site, uner the Lease. follows: (b) Steps to Close Escrow. The Close of Escrow shall be complete as (i) On or before the Close of Escrow, CCSF shall execute an acknowlege, as necessary, an eposit into Escrow with the Title Company the following: (1) the Lease; (2) the Memoranum of Lease; (3) copies of the resolutions of CCSF authorizing an approving the Lease an this Agreement; an (4) such affiavits an certifications as shall enable the Title Company to issue to Developer an any lener to Developer ALTA extene -7-

13 -8- SMRH Draft coverage title insurance without exceptions for mechanics liens or rights of parties in possession other than pursuant to any lease contemplate in this Agreement. (ii) On or before the Close of Escrow, Developer shall execute an acknowlege (or cause to be execute an acknowlege), as necessary, an eposit into escrow with the Title Company the following: (1) the Lease; (2) the Memoranum of Lease in recorable form; (3) the certificate as to the accuracy of the representations an warranties uner this Agreement require by Section 2.03(a)(i); (4) such resolutions of Developer an its constituent members authorizing the execution an elivery of the Lease, this Agreement an any relate agreements, an any other evience of authority as CCSF or the Title Company may reasonably require; (5) the Initial Payment payable by Developer to CCSF at the Close of Escrow pursuant to Section 1.07(b) above; an (6) all costs of Escrow. (iii) CCSF an Developer shall instruct the Title Company to consummate the Escrow as provie in Section 2.02(b). Without limiting the foregoing, upon the Close of Escrow, the Title Company shall (1) recor in the Official Recors the Memoranum of Lease, an any other ocuments reasonably require to be recore uner the terms of Regulatory Approvals, (2) eliver the Initial Payment to CCSF, an (3) eliver to the Parties fully execute copies (or originals where applicable) of the Transaction Documents. (iv) The Title Company shall issue title policies to Developer an CCSF as require uner Section (c) Waiver of Pre-Delivery Conitions. Unless the Parties otherwise expressly agree at the time of Close of Escrow, all pre-delivery conitions of the Parties shall, upon Close of Escrow, be eeme waive by the Party benefite by such conition Conition of Title to the Site. (a) Permitte Title Exceptions. Except for those Permitte Title Exceptions shown on Attachment 5 an such other matters as Developer shall cause or suffer to arise ( Developer-Cause Matters ) which, for purposes hereof, shall automatically be eeme to be inclue in the efinition of Permitte Title Exceptions, CCSF shall Deliver to the Developer the Site uner an subject to the provisions of the Lease for the term specifie in the Lease, free an clear of (i) possession by others, (ii) rights of possession of CCSF, an (iii) liens, encumbrances, covenants, assessments, easements, leases an taxes or any other title matters. Notwithstaning the foregoing, CCSF shall have the right to continue occupancy of the Site an improvements thereon until January 31June 30, 2017, without payment of rent or other charges, other than one-time extraorinary non-stanar charges applicable to the perio of CCSF occupancy; provie that, on or before the expiration of such perio, CCSF shall vacate the Site. (b) Title Defect. If at the time scheule for Close of Escrow there remains (i) any lien, encumbrance, covenant, assessment, easement, lease, tax or other matter that is not a Permitte Title Exception or a Developer-Cause Matter, that encumbers the Site, an woul materially an aversely affect the evelopment of the Project, (ii) rights of possession other than those of the Developer pursuant to any lease agreement entere into in accorance with Section 2.06(e) below)] which is not a Permitte Exception or a Developer-Cause Matter

14 -9- SMRH Draft (collectively, Title Defect ), CCSF will have up to thirty (30) ays from the ate scheule for Close of Escrow to remove the Title Defect. In such event, the Close of Escrow will be extene to the earlier of seven (7) business ays after the Title Defect is remove or the expiration of the thirty (30) ay perio (the Extene Close of Escrow ), but in no event shall exten beyon the Outsie Closing Date. If the Title Defect can be remove by boning an CCSF has not cause such Title Defect to be bone within the foregoing thirty (30) ay perio, Developer may cause a bon to be issue an CCSF shall reimburse the Developer for the cost of such bon within thirty (30) ays of eman therefor. CCSF will not intentionally alter the conition of title to the Site existing as of the ate of this Agreement. (c) Developer s Remeies With Respect to Uncure Title Defect. Except as otherwise provie for herein (incluing without limitation this Section 2.06(c)) an subject to Extension if at the Outsie Close Date, unless the Parties mutually agree to exten such ate, a Title Defect still exists, the Developer by written notice to CCSF shall either (i) terminate this Agreement or (ii) accept Delivery of the Site uner the Lease. If the Developer accepts Delivery, the Title Defect will be eeme waive but solely with respect to any action by the Developer against CCSF. If the Developer oes not accept Delivery an fails to terminate this Agreement within seven (7) ays after the Outsie Close Date, or any extension provie above, CCSF may, at any time thereafter but prior to Developer s actual acceptance of Delivery terminate this Agreement upon written notice thereof to the Developer. If the Agreement is terminate uner this Section 2.06(c), the Developer shall have no further remeies against CCSF with respect to such termination, unless the Title Defect was intentionally cause by CCSF or unless the Title Defect was a lien or other claim resulting from any work or other activity of CCSF, its agents or contractors occurring after the ate of this Agreement, in which event CCSF s failure to remove or bon such Title Defect shall constitute an Event of Default by CCSF hereuner an Developer shall have the rights an remeies set forth in Section 9.06 below with respect thereto. () Reservation of Mineral Rights by CCSF. Developer an CCSF acknowlege that CCSF reserves certain subsurface mineral rights from a point of entry outsie of the Site, an subject to certain limitations, as more particularly escribe in the Lease Title Insurance. (a) Title Insurance to be Issue at the Close of Escrow. The escrow instructions escribe in Section 2.02(b) will provie that concurrently with Close of Escrow the Title Company will issue an eliver: (i) to Developer an ALTA extene coverage title insurance policy issue by the Title Company, with such coinsurance or reinsurance agreements as Developer may request reasonably, in an amount esignate by Developer which is satisfactory to the Title Company, insuring that the leasehol estate in the Site is veste in Developer subject only to the Permitte Title Exceptions, an with such CLTA or ALTA form enorsements as may be reasonably requeste by Developer, all at the sole cost an expense of Developer; an (ii) at CCSF s election, to CCSF an ALTA extene coverage title insurance policy issue by the Title Company in an amount specifie by CCSF an satisfactory to the Title Company, insuring CCSF s fee interest in the Site subject to the Lease, an the other

15 Permitte Title Exceptions which are applicable to the fee, an with such CLTA or ALTA enorsements as CCSF may reasonably request, all at the sole cost an expense of CCSF. SMRH Draft (b) Surveys. Developer is responsible for securing any an all surveys an engineering stuies at its sole cost an expense, as neee for the title insurance require uner this Agreement or as otherwise require to consummate the transactions contemplate by this Agreement. Developer shall provie CCSF with complete an accurate copies of all such final surveys an engineering stuies Taxes an Assessments. (a) A Valorem Taxes an Assessments Before an After Close of Escrow. For any perio before the Close of Escrow, Developer is responsible for any a valorem taxes (incluing, but not limite to, possessory interest taxes) assesse on Developer s interests uner this Agreement, or its entry upon the Site uner a Permit to Enter. A valorem taxes an assessments levie, assesse, or impose for any perio on or after the Close of Escrow, incluing but not limite to, possessory interest taxes, are the sole responsibility of Developer, as further provie in the Lease. (b) Possessory Interest Taxes. Developer recognizes an unerstans that this Agreement may create a possessory interest subject to property taxation an that Developer may be subject to the payment of property taxes levie on such interest Compliance with Laws. (a) [Reserve] (b) Regulatory Approvals. Developer unerstans that its construction of the Improvements on the Site an evelopment of the Project will require approval, authorization or permit by governmental agencies with jurisiction. Developer shall be solely responsible for obtaining any such Regulatory Approvals, as further provie in this Section 2.09(b). Throughout the permit process for any Regulatory Approval involving iscretionary, as oppose to ministerial, action by a governmental agency, Developer shall consult an coorinate with CCSF in Developer s efforts to obtain such permits. CCSF shall cooperate reasonably with Developer, without any out-of-pocket expense to CCSF, in Developer s efforts to obtain such permits. Developer s right to obtain, an provisions for CCSF s consent to, Regulatory Approvals, shall be as set forth in Section 6.2 of the Lease. No consent by CCSF to the conitions an restrictions in Regulatory Approvals shall limit Developer s obligation to pay all the costs of complying with such conitions uner this Section 2.09(b). Subject to the conitions of this Section 2.09(b) an Section 6.2 of the Lease, CCSF shall provie written consent to any application by Developer for require Regulatory Approval an execute an acknowlege such permit an relate notice of restrictions where require pursuant to the provisions of the Regulatory Approval. Developer shall bear all costs associate with applying for an obtaining any necessary Regulatory Approval. If the Close of Escrow occurs, Developer shall comply with any an all conitions or restrictions impose by regulatory agencies as part of a Regulatory Approval as a irect result of the Project, at no cost to CCSF, whether such conitions are on Site or require off-site improvements unless provie to the contrary in this Agreement. Developer -10-

16 shall have the right to appeal or contest any conition in any manner permitte by law impose upon any such Regulatory Approval. Developer shall provie CCSF with prior notice of any such appeal or contest an keep CCSF informe of such proceeings. Developer shall pay or ischarge any fines, penalties or corrective actions impose as a result of the failure of the Developer to comply with the terms an conitions of any Regulatory Approval. Without limiting any other inemnification provisions of this Agreement, Developer shall Inemnify CCSF an the Other Inemnifie Parties from an against any an all Losses which may arise after the Close of Escrow in connection with Developer s failure to comply with the terms an conitions of any Regulatory Approval, except to the extent that such Losses arise from the negligent or willful acts or omissions of CCSF. ARTICLE 3. AS IS CONDITION OF THE SITE; INDEMNIFICATION Site As Is; Risk of Loss. (a) Acceptance of Site in AS-IS, WITH ALL FAULTS Conition; Risk of Loss. CCSF shall not prepare the Site for any purpose whatsoever relate to Developer s obligations to construct the Improvements. Subject to the provisions of Section 2.06 with regar to the Permitte Title Exceptions, Developer agrees to accept the Site in its AS-IS, WITH ALL FAULTS conition on the ate of Close of Escrow as further escribe in Section 3.01(c). Except as provie in Section 3.01(b) below, CCSF will not uner any circumstances be liable to Developer for any monetary amages which may result shoul any portion of the Site be amage or estroye partially, substantially or totally at any time before Delivery to Developer. (b) Damage or Destruction. (i) In the event of any amage or estruction of the Site occurring prior to the Close of Escrow which Developer reasonably etermines woul a less than Two Hunre Fifty Thousan an No/100 Dollars ($250,000.00) to the Buget or result in the loss of less than Fifty Thousan Dollars ($50,000) in monthly gross rents from subtenants following the Close of Escrow, Developer an CCSF shall Close the Escrow if the other closing conitions are satisfie. In such event, all procees of property, rental loss an business interruption insurance payable to CCSF by reason of such amage or estruction, if any, whether uner insurance policies hel by CCSF or by Developer, incluing rights uner rent loss an business interruption insurance shall be pai to Developer, an CCSF s rights to such procees assigne, as applicable, to Developer an CCSF shall pay or creit to Developer against the Initial Payment the amount of the insurance euctible uner any such property insurance actually maintaine by CCSF with respect to the Site. CCSF represents that it maintains an CCSF shall continue to maintain all-risk casualty insurance in the full replacement cost of the existing improvements on the Site. (ii) If any amage or estruction of the Site occurring prior to the Close of Escrow which Developer reasonably etermines woul a more than Two Hunre Fifty Thousan an No/100 Dollars ($250,000.00) to the Buget or result in a iminution of more than Fifty Thousan Dollars ($50,000) in monthly gross rents otherwise contemplate to be receive from subtenants, Developer may elect either (i) to terminate this Agreement upon written notice to CCSF, in which event the Negotiation Fee shall be returne to Developer, but -11-

17 -12- SMRH Draft no other costs shall be reimburse to Developer; or (ii) to Close the Escrow. If Developer procees to the Close of Escrow, all procees of property, rental loss an business interruption insurance payable to CCSF by reason of such amage or estruction, if any, whether uner insurance policies hel by CCSF or by Developer, incluing rights uner rent loss an business interruption insurance shall be pai to Developer, an CCSF s rights to such procees assigne, as applicable, to Developer an CCSF shall pay or creit to Developer against the Initial Payment the amount of the insurance euctible uner any such property insurance actually maintaine by CCSF with respect to the Site. Any ispute between Developer an CCSF as to the amount of extra cost that such amage or estruction of the Site woul a to the Buget shall be subject to resolution in accorance with the proceures set forth in Section 9.06(e) below. (c) Inepenent Investigation by Developer. Except for the representations an warranties set forth in Section 10.20, Developer agrees to rely solely on its own inspection an investigation of the Site, incluing the existing improvements thereon, with respect to all matters pertaining to the project incluing, without limitation, (i) the quality, nature, aequacy an physical conition of the Site, incluing the improvements thereon; (ii) the quality, nature, aequacy, an physical, geotechnical an environmental conition of the Site (incluing Hazarous Materials conitions (incluing without limitation, presence of asbestos or lea) with regar to the builing, soils an any grounwater); (iii) the suitability of the Site for the Project; (iv) the zoning, lan use regulations, historic preservation laws, an other Laws governing use of or construction on the Site; an (v) all other matters of material significance affecting the Site an its evelopment, use, operation, an enjoyment uner this Agreement. () DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. DEVELOPER AGREES THAT THE SITE IS BEING DELIVERED BY CCSF AND ACCEPTED BY DEVELOPER IN ITS AS-IS, WITH ALL FAULTS CONDITION. DEVELOPER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT AS SET FORTH IN SECTION 10.20, NEITHER CCSF, NOR ANY EMPLOYEE, REPRESENTATIVE OR OTHER AGENT OF ANY OF THEM, HAS MADE, AND THERE IS HEREBY DISCLAIMED, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO THE CONDITION OF THE SITE, THE SUITABILITY OR FITNESS OF THE SITE OR APPURTENANCES TO THE SITE FOR THE DEVELOPMENT, USE OR OPERATION OF THE PROJECT, ANY COMPLIANCE WITH LAWS OR APPLICABLE LAND USE OR ZONING REGULATIONS, ANY MATTER AFFECTING THE USE, VALUE, OCCUPANCY OR ENJOYMENT OF THE SITE, OR ANY OTHER MATTER WHATSOEVER PERTAINING TO THE SITE OR THE PROJECT Release. Developer As part of its agreement to accept the Site together with the existing improvements thereon in its As-Is, With All Faults conition, effective upon Close of Escrow, Developer, on behalf of itself an its successors an assigns, shall be eeme to waive any right to recover from, an forever release, acquit an ischarge, CCSF an its Agents of an from any an all

18 -13- SMRH Draft Losses, whether irect or inirect, known or unknown, foreseen or unforeseen, that Developer may now have or that may arise on account of or in any way be connecte with (i) the physical, geotechnical or environmental conition of the Site, incluing, without limitation, any Hazarous Materials in, on, uner, above or about the Site (incluing, but not limite to, soils an grounwater conitions), an (ii) any Laws applicable thereto, incluing without limitation, Hazarous Materials Laws. In connection with the foregoing release, Developer acknowleges that it is familiar with Section 1542 of the California Civil Coe, which provies as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Developer Developer agrees that the release contemplate by this Section 3.02 inclues unknown claims pertaining to the subject matter of this release regaring the physical conition of the Site or any Laws applicable thereto. Accoringly, Developer hereby waives the benefits of Civil Coe Section 1542, or uner any other statute or common law principle of similar effect, in connection with the releases containe in this Section. Notwithstaning anything to the contrary in this Agreement, the foregoing release shall survive any termination of this Agreement Environmental Matters. (a) Compliance with Hazarous Materials Laws. From an after the Close of Escrow, Developer shall comply with the provisions of all Hazarous Materials Laws applicable to the Site, incluing the Improvements, an to the activities conucte on the Site, an all uses, improvements an appurtenances of an to the Site, as further provie in the Lease. Developer shall perform any require Investigation an Remeiation of Hazarous Materials as require by applicable laws with regar to any conition of the Site existing before or after Close of Escrow, at no cost to CCSF, in accorance with applicable Laws, regulations an agency requirements an stanars; provie, however, if this Agreement or the Lease expires or terminates, for any reason whatsoever, Developer shall only be responsible for such Investigation, an Remeiation of those Hazarous Materials place on the Site by Developer or, as to pre-existing conitions on the Site, those isturbe by Developer so as to require response costs or actions uner applicable Laws. Developer shall also comply with all conitions for Regulatory Approval of Hazarous Materials Remeiation. (b) Remeies Against Other Persons. Nothing in this Agreement is intene in any way to preclue or limit Developer from pursuing any remeies Developer may have with regar to the existence of Hazarous Materials in, on, uner or about the Site against any Person other than CCSF an its respective Agents. If requeste by Developer, CCSF shall assign to Developer any claims or actions CCSF may have against any Person other than CCSF an its

19 respective Agents with regar to the existence of Hazarous Materials in, on, uner or about the Site Inemnification. (a) Inemnification Before Close of Escrow. (i) Before Close of Escrow an without limiting any inemnity containe in any Permit to Enter, Developer shall Inemnify CCSF an the other Inemnifie Parties from an against any an all Losses arising out of any claim for eath, injury or amage to person or property arising out of the conuct of Developer or its Agents; except only to the extent of Losses resulting from the negligence or willful misconuct of CCSF or any other Inemnifie Parties, an any pre-existing Hazarous Materials conitions on the Site, except to the extent such Losses arise ue to isturbance of Hazarous Materials by Developer or its Agents. (ii) CCSF shall inemnify Developer an the other Developer Inemnifie Parties from an against any an all Losses relate to or arising out of any claim for eath, injury or amage to person or property before the Close of Escrow except only to the extent of Losses resulting from the negligence or willful misconuct of Developer or any other of the Developer Inemnifie Parties, an any pre-existing Hazarous Materials conitions on the Site, except to the extent such Losses arise ue to isturbance of Hazarous Materials by Developer or its Agents. (b) Inemnification On an After Close of Escrow. On an after Close of Escrow, CCSF an Developer shall Inemnify each other an the respective other Inemnifie Parties in accorance with the provisions of the Lease. (c) General Provisions Regaring Inemnities. (i) Costs. The foregoing Inemnities shall inclue, without limitation, reasonable fees of attorneys, consultants an experts, laboratory costs, an relate costs, as well as the Inemnifie Party s costs of investigating any Loss. (ii) Immeiate Obligation to Defen. Developer agrees to efen the Inemnifie Parties against any claims which are actually or potentially within the scope of the inemnity provisions of this Agreement even if such claims may be grounless, frauulent or false. CCSF or the Inemnifie Party against whom any claim is mae which may be within the scope of the inemnity provisions of this Agreement shall provie notice to Developer of such claim within a reasonable time after learning of such claim, an thereafter shall cooperate with Developer in the efense of such claim; provie that any reasonable failure to provie such notice shall not affect Developer s obligations uner any such inemnity provisions. (iii) Not Limite by Insurance. The insurance requirements an other provisions of this Agreement shall not limit Developer s inemnification obligations uner this Agreement or the Lease. -14-

20 -15- SMRH Draft (iv) Survival. The inemnification obligations of Developer set forth in this Agreement shall survive any termination of this Agreement as to any acts or omissions occurring prior to such ate. After Close of Escrow, the inemnification obligations of Developer uner the Lease shall apply with respect to matters occurring on or after the Close of Escrow. (v) Aitional Obligations. The agreements to Inemnify set forth in this Agreement are in aition to, an in no way shall be construe to limit or replace, any other obligations or liabilities which Developer may have to CCSF in this Agreement, any Permit to Enter or applicable law. (vi) Defense. Developer shall, at its option but subject to the reasonable consent an approval of CCSF, be entitle to control the efense, compromise, or settlement of any inemnifie matter through counsel of Developer s own choice; provie, however, in all cases CCSF shall be entitle to participate in such efense, compromise, or settlement at its own expense. If Developer shall fail, however, within a reasonable time following notice from CCSF escribing in reasonable etail the nature of Developer s failure to take reasonable an appropriate action to efen such suit or claim, CCSF shall have the right promptly to hire outsie counsel to carry out such efense, which expense shall be ue an payable to CCSF within thirty (30) business ays after receipt by Developer of an invoice therefor. ARTICLE 4. ACCESS BY DEVELOPER UPON SITE Access an Entry by the Developer to the Site. (a) Permit to Enter Before Close of Escrow. This Section 4.01 will govern the right of access to an entry upon the Site by Developer an its Agents before Close of Escrow. (i) From time to time an at all reasonable times, Developer shall have the right of access to an entry upon, uner an aroun the Site for the purposes of performing non-invasive investigations an tests necessary to carry out this Agreement, an performing visual surveys an inspections provie, however, Developer shall first obtain a License to Enter from CCSF in the form attache as Attachment 4, incluing, but not limite to, the inemnification an insurance requirements containe in such permit ( License to Enter ). (ii) Developer may not perform any emolition, excavation or construction work before Close of Escrow without the express written approval of CCSF, which CCSF may give or withhol in its sole an absolute iscretion; provie that Developer may perform invasive rilling an testing of the Site, the soil an grounwater thereuner an the improvements thereon pursuant to a work plan approve by CCSF. CCSF s approval shall not unreasonably be withhel, conitione or elaye an shall be eeme given, if not enie by CCSF by notice to Developer incluing a etaile escription of the reasons for such enial, given within five (5) business ays following Developer s request for such approval. If CCSF grants such approval, CCSF may inclue in the Permit to Enter such aitional insurance an inemnification requirements as CCSF etermines are appropriate to protect its interests, which

21 may inclue bons an guaranties if such work consists of more than invasive testing an inspection SMRH Draft (iii) In making any entry upon the Site authorize in accorance with the foregoing, Developer shall not materially interfere with or obstruct the permitte, lawful use of the Site by CCSF, its tenants, or the tenants invitees, or their conuct of normal business operations thereon. (b) Issuance of Permit to Enter. Developer may unertake aitional activities at ifferent times before Close of Escrow uner all of the terms an conitions of the Permit to Enter (other than use or time for performance) upon obtaining CCSF s prior written approval, which approval shall not to be unreasonably withhel. Such aitional activities will be for a perio of time that reasonably will permit Developer to complete the activity for which access an entry is authorize. Any request by Developer for consent or approval of CCSF hereuner shall inclue sufficient information regaring the scope of work. CCSF may require any contractor performing the work uner the Permit to Enter to be a co-permittee ARTICLE 5. DEVELOPMENT OF THE SITE Developer s Construction Obligations for All of the Improvements. (a) Scope of Development; Scheule of Performance. If the Close of Escrow occurs, subject to the availability of Final Discretionary Regulatory Approvals, Developer shall use commercially reasonable efforts to obtain Final Discretionary Regulatory Approvals an, upon issuance thereof, to construct or cause to be constructe the Improvements on the Site an offsite, to the extent not the responsibility of others, such as serving utilities, in the manner set forth in this Article 5 an within the time set forth in the Scheule of Performance, attache as Attachment 6, an the Scope of Development attache as Attachment 7. The satisfaction of the matters set forth in the Scheule of Performance by the require completion ates set forth therefor is an essential part of this Agreement, time being of the essence. In the event CCSF grants an extension of any such ate, CCSF shall not be eeme to be waiving any other rights uner this Agreement or implying the extension of any other ates. (b) Costs; Private Development. Developer shall bear all of the cost of eveloping the Site an construction of all Improvements, incluing, without limitation, any an all cost overruns in relation to the Buget, in accorance with the Project Requirements. Without limiting the foregoing, if the Close of Escrow occurs, the Developer shall be responsible for performing all Site preparation work necessary for construction of the Improvements. Such preparation of the Site shall inclue, among other things, Investigation an Remeiation of Hazarous Materials require for evelopment or operation of the Improvements, all structure an substructure work, isable access improvements an public access improvements an tenant improvements, an all such costs shall be inclue in Construction Costs. Developer, at no cost to CCSF, shall arrange for the provision an construction of all on- an off-site utilities necessary to evelop the Site. Developer shall cause the General Contractor selecte by Developer in accorance with Subsection 5.01(c) to select union subcontractors for substantially all traes an such General Contractor an all subcontractors shall be require to employ union labor for substantially all on-site work relate to the Project. In no event shall the total ollar