AN AMENDMENT TO THE AGREEMENT BETWEEN

THE COUNTY OF SAN MATEO AND
TUSCAN TOWER LLC

 

THIS AMENDMENT TO THE AGREEMENT, entered into this _____ day of February, 2009, by and between the COUNTY OF SAN MATEO, hereinafter called “Seller” or "County," and TUSCAN TOWER LLC, hereinafter called "Buyer";

 

W I T N E S S E T H:

 

WHEREAS, on November 15, 2005, the parties entered into a Purchase and Sale Agreement whereby the County of San Mateo agreed to sell, and Tuscan Tower agreed to purchase, the road remnant located at 490 Winslow Street in Redwood City, California, in exchange for Tuscan Tower’s payment of closing costs, and its agreement to include a certain number of units of affordable housing in a construction project that it plans to build on a parcel that includes the remnant; and

 

WHEREAS, that agreement required Tuscan Tower to record a subdivision map for the Project within three years of the Date of Closing set forth herein, and to commence construction of the Project within four years of the Date of Closing, and provided that if Tuscan Tower did not meet those conditions, the County, at its sole discretion has the right to require Tuscan Tower to re-convey the property or pay additional cash consideration; and

 

WHEREAS, due to factors beyond its control, Tuscan Tower has been unable to meet the conditions that would permit the County to require reconveyance or additional consideration; and

 

WHEREAS, the parties wish to amend the agreement to increase the time within which Tuscan Towers is required to record a subdivision map for the Project, commence construction, and meet each of the affordable housing requirements set forth in the Agreement Seller.

 

NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY ACKNOWLEDGED, AND IN CONSIDERATION OF THE PUBLIC BENEFITS THAT WILL RESULT FROM THE POTENTIAL TO INCREASE THE COMMUNITY’S SUPPLY OF AFFORDABLE HOUSING, IT IS HEREBY AGREED BY THE PARTIES HERETO AS FOLLOWS:

   

1.

Section 2 .B. of the Agreement, entitled “Seller’s Right of Reversion,” is hereby amended and restated in its entirety as follows:

 

“Seller shall retain a reversionary interest in the Winslow Remnant. If Buyer fails to record a subdivision map for the Project within five years of the Date of Closing set forth herein, OR to commence construction of the Project within six years of the Date of Closing, OR to meet each and every one of the affordable housing requirements set forth in this Agreement Seller, at its sole discretion, shall have the following alternative rights:

 

    (1) Seller may require Buyer, at Buyer’s sole cost and expense, to reconvey all right title and interest in the Winslow Remnant according to the procedures set forth in the paragraph. Within 30 days of the receipt of notice from Seller, Buyer will execute and deliver to escrow a grant deed reconveying the Winslow Remnant to Seller. Buyer shall, at its sole cost and expense, deliver to Seller clear title to the Winslow Remnant, subject only to such liens and encumbrances as exist at the time of transfer of fee title to Buyer at the Date of Closing. In the event Buyer fails to timely comply with this provision, Buyer shall pay all of Seller’s costs to enforce this provision including, without limitation, attorney’s fees.

 

    (2) By giving written notice to Buyer, Seller may elect to accept additional cash consideration in lieu of exercising its right of reversion. Such compensation shall be in the sum of Six Hundred Thousand Dollars ($600,000), as hereinafter adjusted (the “Cash Alternative”). The Cash Alternative shall increase annually on the anniversary date of the Date of Closing by an amount equal to the increase in the Consumer Price Index, All Urban Consumers, San Francisco-Oakland-San Jose, All Items, 1982-1984=100, between the month that the Index was last published prior to the Date of Closing and the month that the Index was last published prior to such anniversary date. The amount so calculated shall be immediately due and payable, and shall become a lien against the Winslow Remnant and the Project. Upon receipt by Seller of payment of the Cash Alternative, Buyer shall have no further obligation to restrict the sale price or transfer of the Two Additional Units as set forth herein, and Seller shall cooperate as reasonably necessary to remove any recorded restrictions required by Seller in relation to this Agreement.

 

The County of San Mateo, at its sole discretion, may agree to an additional one-year extension of the dates by which Tuscan Tower is required to meet the above-stated conditions to extinguish the County’s right to require reconveyance of the property or the payment of additional consideration. However, this additional one-year extension requires a showing that Tuscan Tower is making reasonable progress towards its commitment to construct or cause to be constructed the two units of affordable housing.

 

2.

All other terms and conditions of the Agreement dated November 15, 2005 shall remain in full force and effect.

 

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands.

 
 

COUNTY OF SAN MATEO

 
 
 

By:

 

David S. Boesch
County Manager

 
 
 

Date:

 

ATTEST:

 
 

By:

Clerk of Said Board

 
 

TUSCAN TOWER LLC

Mohsen Sayar, President

 

Signature

 
 

Date: