Loading...
HomeMy WebLinkAbout2000 CON PA Wal-Mart - Purchase 15 AcreA National City, California - Store #90972 PITRCHASE AGREEMENT This Agreement is dated as of the 18th day of July 2000, between the Parking Authority of the City of National City, a municipal corporation ("Seller"), and WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware business trust, or nominee ("Wal-Mart"). WITNESSETH: 1. Sale and Purchase Seller shall sell and Wal-Mart shall purchase, subject to the terms and conditions herein, an approximately fifteen (15) acre tract of land (the "Property") more particularly described in Exhibit "A" attached hereto and made a part hereof located in or near the City of National City, San Diego County, California. Seller warrants that it owns, or controls with a contract to purchase, the Property. 2. Purchase Price. The purchase price for the Property shall be One Hundred Thousand Dollars and No/100 ($100,000.00) (the "Purchase Price") payable as follows: (a) Five Thousand Dollars and No/100 ($5,000.00) paid within seven (7) days of the Effective Date of this Agreement to Fidelity National Title Insurance Company (the "Escrow") to be held in an interest bearing escrow account (the "Deposit") with interest accruing to Wa1-Mart; and (b) The balance of Ninety-five Thousand Dollars and No/100 Dollars ($95,000.00) paid on the date of the closing of this sale (the "Closing") by certified check or Federal wire transfer. 3. Escrow. Wal-Mart and Seller shall deliver signed instructions Fidelity National Title Company (the "Escrow") as escrow holder, within twenty (20) calendar days of both parties' execution of this Agreement, which shall provide for closing as provided herein. Escrow fees shall be subject to the review and approval of Wal-Mart and Seller, and then shall be shared in the manner provided herein. The "Close of Escrow" or the "Closing" shall be the date Seller's grant deed is recorded. Concurrently with Seller's execution of the escrow instructions, Seller shall execute a grant deed to convey title of the Property to Wal-Mart, and Escrow shall hold said deed until the Close of Escrow. For all purposes, the date of the "opening of escrow" shall be the date of this Agreement. In the event of any inconsistency between the escrow instructions and this Agreement, this Agreement shall control, notwithstanding the fact that either party may N•1WV) I1lYY 11I1v lq, rrMePA el -1- have intentionally or inadvertently executed such inconsistent instructions. 4. Survey Wal-Mart shall order a certified ALTA boundary line and topographic survey of the Property. Wal-Mart shall pay for both surveys and Seller agrees to reimburse Wal-Mart at the Closing for the cost of the certified ALTA boundary line survey. Said surveys shall (i) be prepared by a registered land surveyor pursuant to the instructions attached hereto as Exhibit "B", and (ii) contain an accurate legal description. 5. Title Insurance. Within ten (10) days of the opening of escrow, Seller shall cause to be delivered to Wal-Mart, a title commitment, along with copies of all documents representing the Schedule B exceptions in such commitment ("Title Commitment"). The Title Commitment shall be issued by Fidelity National Title Company ("Title Company") and shall also contain the Title Company's commitment to issue such California Land Title Association endorsements ("CLTA Endorsements") to the title policy as Wal-Mart or its lender shall require. Wa1-Mart shall give notice in writing to Seller of any defects in or objections to the title as so evidenced. Seller shall, within forty-five (45) days of receipt of said notice, or such time as may be extended by Wal-Mart, clear the title of the defects and objections so specified. Failure to clear the title of defects and objections within the forty-five (45) days, or such time as may he extended by Wal-Mart, shall constitute a default on the part of the Seller and be subject to the provisions of Section 10 contained herein. Seller and Wal-Mart acknowledge that the open space easement in favor of the County of San Diego, referred to in Section 14.G of this Agreement, is a matter of record which will be shown in the Title Commitment as an exception to title. Seller and Wa1-Mart agree that such open space easement will be addressed as provided in Section 14.G of this Agreement. 6. Title and Deed. At the Closing, Seller shall convey to WaI-Mart, marketable title to the Property, free and clear of any and all encumbrances, which are unacceptable to Wal-Mart or which provide for a forfeiture of the title to the Property or which prohibit or restrict the erection of the necessary structures or facilities for, or the operation of a Sam's Club on the Property. Those exceptions which are acceptable to Wal-Mart shall be referred to as "Permitted Exceptions". At the Closing, Wal-Mart shall also be able to obtain, at Seller's expense, a standard form ALTA Owner's Title Insurance Policy (the "Policy") issued by the Title Company, insuring marketable title to Wal-Mart in the full value of the Property and containing no exceptions or conditions other than the Permitted Exceptions, and containing the CLTA Endorsements which Wal-Mart or its lender shall require. -2- 7. Condemnation If, prior to the Closing, all or any part of the Property shall be condemned by governmental or other lawful authority, Wal-Mart shall have the option of (a) completing the purchase, in which event all condemnation proceeds or claims thereof shall be assigned to Wal-Mart, or (b) canceling this Agreement, in which event the Deposit shall be returned to Wal-Mart and this Agreement shall be terminated with neither party having any rights against the other. 8. Taxes and Assessment. Real property taxes, water rates and sewer charges and rents, if any, shall be prorated and adjusted on the basis of thirty (30) days to each month, Seller to have the last day, to the date of Closing. Taxes for all prior years shall be paid by Seller. If the Closing shall occur before the tax rate is fixed for the then -current year, the apportionment of taxes shall he upon the basis of the tax rate for the preceding year applied to the latest assessed valuation, with the proration to be adjusted between the parties based on actual taxes for the year in which Closing occurs at the time such actual taxes are determined. Assessments and bonds, either general or special, for improvements completed prior to the date of Closing, or other governmental charges, whether matured or unmatured, shall be paid in full by Seller. Furthermore, the Seller shall cause to be completed the Real Property Tax Guidelines for Wal-Mart Built Stores attached hereto as Exhibit "C" and upon completion will forward to the Real Estate Manager. Seller hereby agrees to pay, reimburse, indemnify, defend and hold Wal-Mart harmless from any supplemental assessments, or taxes or assessments, and any late charges or penalties associated therewith, levied by the taxing authorities after the close of Escrow attributable to facts or circumstances arising before the close of Escrow, or otherwise excepted from coverage under the Title Policy. 9. Transfer and Sales Taxes. The expense and cost of all Federal, state and local documentary or revenue stamps, transfer, sales and other taxes, if any, relating to the sale of the Property shall be paid by Seller on the date of Closing. Both parties agree to execute any tax returns required to be filed in connection with any such taxes. 10. Time of the Essence/Defaults/Remedies Time is of the essence of this Agreement and failure to comply with this provision shall be a material breach of this Agreement. If the Escrow fails to close as provided herein, Wal-Mart or Seller may at any time thereafter give written notice to the escrow holder to cancel the Escrow, and pay or return the Deposit to the party entitled hereto under the terms hereof, and return all other money and documents in Escrow to their respective depositors. The escrow holder shall comply with such -3- N•\ W M 1 \fYY1\tl.v\A nri.oer A ni An, notice without further consent from any other party to the Escrow or from any broker involved in the transaction. Cancellation of Escrow as provided herein shall be without prejudice to whatever legal rights Wal-Mart and Seller may have against each other. A. Default by Wal-Mart IF WAL-MART FAILS TO COMPLETE SAID PURCHASE AS HEREIN PROVIDED BY REASON OF ANY DEFAULT BY WAL-MART, SELLER SHALL BE RELEASED FROM OBLIGATION TO SELL THE PROPERTY TO WAL-MART, BUT SELLER, BY INITIALING THIS PARAGRAPH, SHALL HAVE RELEASED WAL-MART FROM ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF SUCH DEFAULT, AND SELLER SHALL HAVE AGREED THAT SELLER SHALL RETAIN THE "DEPOSIT" AS LIQUIDATED DAMAGES, AND THAT SUCH RETENTION SHALL BE SELLER'S SOLE REMEDY AGAINST WAL-MART IN REGARD TO SUCH DEFAULT. THE PARTIES HERETO HAVE CONSIDERED THE AMOUNT OF DAMAGES WHICH SELLER IS LIKELY TO INCUR IN THE EVENT OF A DEFAULT OR BREACH HEREUNDER BY WAL-MART, AND THE PARTIES HERETO HAVE AGREED THAT THE DEPOSIT IS A REASONABLE APPROXIMATION AND LIQUIDATION OF SELLER'S POTENTIAL DAMAGES, CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO SELLER THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE RECEIPT AND RETENTION OF SUCH AMOUNT BY SELLER IS INTENDED TO CONSTITUTE THE LIQUIDATED DAMAGES TO SELLER PURSUANT TO THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. SAID AMOUNT OF LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER REMEDIES, DAMAGES OR SUMS DUE OR PAYABLE TO SELLER. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE. WAL-MART -4- N•\WG71 \lWW1 \ Ibve\Arrrhoel,, ELL B. Default by Seller If Seller fails or refuses to comply fully with the terms of this Agreement, because of failure to clear title as outlined in Section 5 contained herein to Property or for any other cause Wal-Mart may, at its option, exercise every right and remedy available at law and in equity under California law, including but not limited to the right to: (i) rescind this Agreement and recover from Escrow or Seller the Deposit, as well as any and all reasonable expenses, paid or incurred by Wal-Mart in connection with this Agreement, (ii) proceed with this Agreement and take the Property as is, subject to the qualification below, or (iii) record a lis pendens and enforce Wal-Mart's right to specific performance and related injunctive relief, or (iv) select another location for its Sam's Club, and bring an action for its actual and consequential damages. Seller acknowledges that if Wal-Mart seeks specific performance of this Agreement, Wa1-Mart shall be entitled to an order by the court enforcing this Section, without any need to make a showing that the Property is unique, or that its damages are liquidated and not speculative, or no other remedies are practical, available, effective or adequate. Seller acknowledges that if Wal-Mart seeks injunctive relief, the same may be fashioned in a mandatory or prohibitive manner, and Seller hereby waives any right, at law or in equity, to demand the posting of a bond or other security by Wal-Mart as a condition to the continuation, of record, of any lis pendens which it may file. C. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, BUT WITHOUT LIMITING THE EFFECT OF SECTION 10.B, AS IT RELATES TO MATTERS OTHER THAN THE SUBJECT MATTER OF THIS SECTION 10.C, IF SELLER FAILS OR REFUSES TO COMPLY FULLY WITH THE TERMS OF THIS AGREEMENT SOLELY BECAUSE OF THE INABILITY, FAILURE OR REFUSAL OF THE COUNTY OF SAN DIEGO TO RELINQUISH THE OPEN SPACE EASEMENT OVER THE PROPERTY, AS REFERRED TO IN SECTION 14.G OF THIS AGREEMENT (HEREINAFTER REFERRED TO IN THIS SECTION 10.C, AS SELLER'S `BREACH"), WAL-MART DOES HEREBY RELEASE SELLER FROM ALL LIABILITY FOR LOSS TO WAL- MART OR CLAIM FOR DAMAGES BY WAL-MART, INCLUDING COSTS AND ATTORNEY FEES, ARISING FROM SELLER'S BREACH, AND WAL-MART'S REMEDIES FOR SELLER'S BREACH SHALL BE LIMITED TO THE FOLLOWING: -5- N•\ W G91 VAMU [Y.r\Dm,11,cr. A nG ,I,v WAL-MART SHALL BE ENTITLED TO THE RETURN OF ANY FUNDS DEPOSITED INTO ESCROW, INCLUDING THE DEPOSIT, AND ALL ACCRUED INTEREST, AND THE ESCROW SHALL BE CANCELLED AND NEITHER PARTY SHALL HAVE ANY RIGHTS OR RESPONSIBILITIES TO THE OTHER. WAL-MART AND SELLER AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH WAL-MART'S DAMAGES BY REASON OF SELLER'S BREACH. ACCORDINGLY, WAL-MART AND SELLER AGREE THAT IN THE EVENT OF SELLER'S BREACH UNDER THIS AGREEMENT, IT WOULD BE REASONABLE AT SUCH TIME TO AWARD WAL-MART, AS WAL-MART'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), "LIQUIDATED DAMAGES" EQUAL TO THE AMOUNT OF ANY FUNDS DEPOSITED INTO ESCROW BY WAL-MART, INCLUDING THE DEPOSIT, AND ALL ACCRUED INTEREST. SAID AMOUNT SHALL BE THE FULL AGREED AND LIQUIDATED DAMAGES FOR SELLER'S BREACH, AND ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES ARE EXPRESSLY WAIVED BY WAL-MART. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO WAL-MART PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. WAL-MART WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389 WITH RESPECT TO ANY SELLER'S BREACH WITHIN THE SCOPE OF THIS SECTION 10.C. WAL-MART SELLER 11. Right of Entry. At any time prior to the Closing, and at Wa1-Mart's sole expense, Wa1-Mart or its authorized agents shall have the right to enter upon the Property for any lawful purpose, including without limitation making such surveys and site analyses, test borings and engineering studies and to erect such signs as Wa1-Mart may deem necessary. Wa1-Mart shall indemnify and hold Seller harmless from and against any and all claims and liens arising out of any act or failure to act of Wal-Mart or its authorized agents as a result of their respective -6- activities on the Property. 12. Brokerage Fees. Wal-Mart shall pay and shall indemnify, defend and hold Seller harmless from and against any claim by Radius Retail Partners and Michael Navarro for a broker's or finder's fee associated with this transaction. Both parties represent that no other broker is involved in this Agreement and each party agrees to indemnify the other against brokerage or conunission claims arising out of the indemnifying party's actions. 13. Utilities. Seller, at the time of Closing, warrants that all utility services, adequate to meet the needs of a Sam's Club, including water, gas, electrical, telephone and sanitary and storm sewer are available to the Property. Seller also warrants that except as disclosed in writing by Seller to Wal-Mart prior to their execution thereof, no public agency or utility has imposed a connection or service commencement fee or assessment which would be a precondition to Wal-Mart's use of said services, nor is any moratorium against connection to such services, or quantitative or qualitative limitation on such services is in place at the date hereof, or proposed, pending, likely or necessary, to the knowledge of Seller and any of its design or engineering consultants with respect to the Property. 14. Contingencies and Seller's Warranties A. Governmental Approvals To Be Obtained by Seller. This Agreement and Wal-Mart's obligation to close Escrow is expressly conditioned on the general plan, any applicable specific plan, zoning, zone clearance, subdivision map, environmental clearance, planned development program or permit, conditional use permit program, architectural review process, redevelopment plan, approved traffic study, development agreement, redevelopment agreement, subdivision improvement agreement, special assessment district creation and bond issuance, and other discretionary approval programs of the governmental agencies and owners associations with jurisdiction over the Property (individually and collectively the "Governmental Approvals") permitting the use of the Property for business retail usage in the manner customarily undertaken by Wal-Mart ("the Wal-Mart Plan") and the retail businesses which surround it, and as shown on any schematic drawings or plans shown by Wal-Mart to Seller, and otherwise acceptable from Wal-Mart's legal, business and economic point -of -view. Seller agrees that since the Property does not have all of the Governmental Approvals necessary for the Wal-Mart Plan, Seller shall, at its expense and subject to timely receipt of all necessary information from Wal-Mart, apply for or execute for Wal-Mart and within thirty (30) days of the -7- 11•\W 511\lYY1\flew \hocra nS eiM date hereof, an application to obtain each and every Governmental Approval for the Wa1-Mart Plan. Seller or Wa1-Mart shall pursue the applications and processing to completion and shall execute all necessary and appropriate instruments, provided that Seller may not execute any application or instrument as an agent of Wal-Mart (Wal-Mart hereby covenanting to timely do the same), but provided further that each representation, covenant, condition, limitation, exaction, fee and design change offered to the governmental agencies by Seller, or mandated by the governmental agencies shall he subject and contingent to Wal-Mart's review, approval or disapproval, counter-offer or counter -condition, and Wal-Mart shall not be obligated to give any binding or final approval of any of the same unless and until: (i) the totality of the Governmental Approvals have been reviewed and finally approved in writing (and by publication of necessary ordinances) by each and every one of the governmental agencies charged with originally granting the Governmental Approvals, (ii) any ordinances with respect thereto having taken effect, (iii) the time has passed for appeal of any such Governmental Approvals to any administrative agency and court with appeal jurisdiction over such Governmental Approvals or appeals in connection therewith, (iv) no notice of referendum or initiative with respect thereto having been published or publicized and (v) any appeals or litigation with respect to (iii) or (iv) have been prosecuted and resolved in a manner which is not subject to remand to lower courts or governmental agencies, all of the enumerated processes being the "Final Approval". If the Final Approval has not occurred, and/or all of the Governmental Approvals have not been obtained on or before the scheduled Closing, this Agreement shall, at Wal-Mart's option, either (a) continue in full force and effect until the same has occurred, (subject to the parties hereto agreeing that the same must occur by October 31, 2001 or this Agreement shall terminate) or (b) this Agreement shall be of no further force and effect, and Seller shall return to Wal-Mart the Deposit or (c) Wal-Mart shall waive some or all parts of this contingency, (with or without imposition of further conditions not involving additional dollar expense by Seller) at Wa1-Mart's sole and absolute discretion, and proceed with the Closing. Seller agrees that his contingency shall be deemed satisfied when Wal-Mart is able to obtain, from the director of planning or the director of building and safety in the municipality where the Property is located, an unconditional letter indicating that Wal-Mart is now able to obtain a building permit for construction of the improvements shown on the Wa1-Mart Plan. B. Permits To Be Obtained by Wal-Mart. This Agreement and Wal-Mart's obligation to close Escrow is expressly conditioned on Wal-Mart receiving prior to the Close of -8- N•\Ilry \IhnrhacA A nC ,3-, Escrow from all appropriate and applicable private and/or public agencies and entities including but not limited to applicable regional, county and/or city authorities and CALTRANS any written approvals, permits and licenses as may be required for the construction of its facilities in the manner of the Wal-Mart Plan, including utilities, buildings, parking lots, lights, landscaping, signs, driveways, and curb -cuts upon the Property and adjacent right of way, and for the construction of any off -site improvements which Wa1-Mart is obligated (and has agreed) to construct (individually and collectively the "Permits"). Wa1-Mart agrees to apply for and diligently pursue approval of the Permits as soon as the Final Approval of the Governmental Approvals, provided that each condition, limitation, exaction, fee and design change mandated by the governmental agencies with respect to said Permits shall be subject and contingent to WaI-Mart's review, approval or disapproval, counter-offer or counter -condition, and Wal-Mart shall not be obligated to give any binding or final approval of any of the same unless and until: (i) the totality of the Permits have been reviewed and finally approved in writing by each and every one of the governmental agencies charged with originally granting the Permits, (ii) the time has passed for appeal of the granting or conditioning or disapproval of any such Permit to any administrative agency and court with appeal jurisdiction over such Permits or appeals in connection therewith, (iii) no notice of development policy change as described in the California Government Code with respect thereto or with respect to the Governmental Approvals which would affect the Wa1-Mart Plan shall have been published, (iv) no notice of referendum or initiative with respect thereto having been published or publicized and (v) any appeals or litigation with respect to (iii) or (iv) have been prosecuted and resolved in a manner which is not subject to remand to lower courts or governmental agencies, all of the enumerated processes being the "Final Permit Approval". If the Final Permit Approval has not occurred, and/or all of the Permits have not been obtained on or before the scheduled Closing, at Wal-Mart's option, either (a) this Agreement shall continue in full force and effect until the same has occurred, (subject to the parties hereto agreeing that the same must occur by October 31, 2001 or this agreement shall terminate) or (b) this Agreement shall be of no further force and effect, and Seller shall return to Wal-Mart the Deposit, or (c) Wa1-Mart shall waive some or all parts of this contingency, (with or without imposition of further conditions not involving additional dollar expense by Seller) at Wal-Mart's sole and absolute discretion, and proceed with the Closing. Seller agrees that this contingency shall be deemed satisfied when Wal-Mart has, in hand, all of the Permits and the -9- N \WG711(YY1\1lv\q„rhxn A ni ilr.r Final Permit Approval has occurred. C. Inspections and Soils Tests Wa1-Mart shall have the right, at Wa1-Mart's expense, to select licensed engineers, contractors, and/or other qualified professional(s) to make "Inspections" (including tests, surveys, other studies, inspections, investigations and interviews of persons familiar with the Property) concerning the Property, including but not limited to tests of structures, wells, septic tanks, and underground storage tanks on the Property, soils, geologic hazards, utility lines and systems, possible environmental hazards, utility lines and systems, possible environmental hazards such as asbestos, formaldehyde, radon gas, methane gas, pesticide residues, oil and gas deposits, and other "Hazardous Materials" as defined in Section 26, below. Wal-Mart hereby indemnifies and holds Seller and the Property harmless from and against any and all costs, liabilities, losses, damages or expenses arising out of or resulting from such entry upon the Property by Wal-Mart, its agents, consultants, contractors and subcontractors, which indemnification shall survive the termination of this Agreement. This Agreement is expressly conditioned upon Inspection results which, in the sole judgment of Wal-Mart, evidence that the Property is suitable for Wa1-Mart's intended use. Wal-Mart shall order the Inspections within thirty (30) days of receipt of the Survey, provided for in Section 4 hereof. Seller shall deliver to Wal-Mart, within ten (10) days of the date hereof, copies of any reports of similar Inspections of which Seller is aware, and Seller's delivery of such existing Inspection reports shall be Seller's representation to Wal-Mart that Seller is not aware of the existence of any others. Wal-Mart shall keep the Property free and clear of any liens, and repair any material physical damages to the Property arising as a result of such Inspections. Upon receipt of reports of such Inspections, Wal-Mart shall promptly deliver one copy of the same to Seller. When such reports disclose conditions or information unsatisfactory to Wal-Mart, which Seller is unable or unwilling to correct at Seller's expense, Wal-Mart may cancel this Agreement by written notice to Seller. D. Condition of the Property. Seller warrants that Seller has no knowledge of any notice of violations of city, county, state, federal, building, land use, fire, health, safety, environmental, hazardous materials or other governmental or public agency codes, ordinances, regulations, or orders with respect to the Property, or as to health, safety, environmental, or hazardous materials codes, ordinances, regulations or orders relating to any lands adjacent to the Property. Seller warrants that no litigation is pending, threatened or likely with respect to the Property, Seller's interest therein, or which would otherwise inhibit Wal-Mart obtaining clear -10- N•\W G91 \OM\Tln•\A..rMmA nG .Lv title to the Property. Aside from the open space easement referred to in Section 14 G. of this Agreement, Seller also warrants that there are no physical, legal, economic or political facts, circumstances, problems or governmental actions with respect to the Property which should be disclosed by Seller or its agents under California law, or which an owner or developer of a property such as the Property would want to know in making decisions concerning acquisition and development of the property, except those which have been disclosed to Wal-Mart in detail, in writing. The foregoing warranties shall be true as of the close of Escrow. If, prior to the close of Escrow, Wa1-Mart learns that any of the foregoing warranties or any disclosures by Seller are misleading, incomplete or otherwise incorrect, Wal-Mart may utilize any of its remedies provided in this Agreement. E. Special Studies 7ones/Flood Hazard 7one Unless otherwise disclosed by Seller to Wal-Mart in writing prior to the date hereof, Seller warrants that to the best of Seller's knowledge, no portion of the Property, or the road rights -of -way immediately adjacent to the Property, (i) are situated in an Earthquake Fault Zone (as defined in California Public Resources Code Sections 2621-2625), or a Border Zone (as defined in California Health and Safety Code Sections 25117.3 and 25117.4) or in a Special Flood Hazard Areas as set forth on a Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map, or Flood Hazard Boundary Map, (ii) are Located within two thousand five hundred (2,500) feet of an earthquake fault which has been mapped in the planning records of San Diego County or the city in which the Property is located, (iii) was the former site of any public or private landfill, dump site, retention basin or settling pond, (iv) was the former site of any oil or gas drilling operations, or (v) was the site of any experimentation, processing, refining, reprocessing, recovery or manufacturing operation for any petrochemicals or Hazardous Materials as defined in Section 26. The foregoing warranties shall be true as of the close of Escrow. If, prior to the close of Escrow, Wa1-Mart learns that any of the foregoing warranties or any disclosures by Seller are misleading, incomplete or otherwise incorrect, Wal-Mart may have utilize any of its remedies provided in this Agreement. F. Real Estate Committee Approval. This Agreement and purchase is wholly contingent upon Wal-Mart being able to obtain approval, from WaI-Mart's Real Estate Committee, of the placement of a Sam's Club on the Property in National City, California. It is understood that Wa1-Mart shall notify Seller within one -hundred eighty (180) days after the date of this Agreement of the decision of the Committee. If the decision is "yes" this Agreement shall -11- N•\W571\TYYNTAv\A mr}men A ni A.v continue in full force and effect. If the decision is "no" Seller shall return the Deposit to Wal-Mart and this Agreement shall terminate and neither party shall have any further obligations under the terms thereof. G. Relinquishment of Open Space Easement Seller and Wa1-Mart acknowledge that the County of San Diego ("County") was previously granted an open space easement over the Property. County has represented that it will exercise best efforts to relinquish the easement over the Property, for a fee, and will use the fee to purchase replacement open space property within the Sweetwater Valley Regional Park and the Sweetwater Summit Camping area. While the removal of the open space easement will be at Wal-Mart's sole cost and expense, Wal-Mart's purchase of the Property is wholly contingent upon the County relinquishing the open space easement, on terms and conditions which are acceptable to Wal-Mart, in Wal-Mart's sole and absolute discretion, at or before the Closing. 15. Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be mailed by certified or registered mail, postage prepaid, addressed as follows: If to Seller If to Purchaser' Paul Desrochers Executive Director Parking Authority of the City of National City 140 East 12th Street National City, CA 91950 With a Copy to. George H. Eiscr, III Legal Counsel Parking Authority of the City of National City 1243 National City Boulevard National City, CA 91950 16. Closing, The Closing shall take place at a place and time mutually agreed upon by the parties, within thirty (30) days following the date upon which all conditions and contingencies set forth in Sections 4, 5, 13, 14A, 14B, 14C, 14D, 14E, 14F and 14G contained herein are satisfied. 17. Closing Cosh. Not withstanding anything to the contrary contained herein, or in the escrow instructions, the Closing costs shall be paid as follows: By Seller: Wa1-Mart Real Estate Business Trust 2001 SE loth Street Bentonville, AR 72716-6489 Attention: Michael Gardner Real Estate Manager With a Copy to. Gresham, Savage, Nolan & Tilden, LLP 600 North Arrowhead Avenue, #300 San Bernardino, California 92401 Attention: Mark A. Ostoich, Esq. -12- U \WQ91\WW1\Tlev \q nrM cr. A of dn. policy; (a) One-half of the cost of the Survey; (b) Title insurance examination and premium for a CLTA policy; (c) Expenses of placing title in proper condition; (d) Preparation and recording of Grant Deed; (e) All documentary, stamp and transfer taxes; and (f) One-half (1/2) the escrow fee. By Wa1-Mart. (a) One-half of the cost of the Survey; (b) Title insurance premium for difference in CLTA policy and ALTA (c) Preparation of Mortgage, Deed of Trust or other applicable financing instruments; (d) Recording fees for financing instruments; (e) One-half (1/2) the escrow fee; and (f) The brokerage fees set forth in Section 12. 18. Time of Essence; Acceptance Time is expressly declared to be of the essence of this Agreement. Seller shall have seven (7) business days from the date of receipt of this Agreement to accept and agree to the terms and conditions herein. 19. Entire Agreement. This Agreement contains the entire agreement between Seller and Wal-Mart, and there are no other terms, conditions, promises, undertakings, statements or representations, express or implied, concerning the sale contemplated by this Agreement. 20. Headings The headings to the Sections hereof have been inserted for convenience of reference only and shall in no way modify or restrict any provisions hereof or be used to construe any such provisions. 21. Modifications The terms of this Agreement may not be amended, waived or terminated orally, but only by an instrument in writing signed by both Seller and Wal-Mart. 22. Sitceessors. This Agreement shall inure to the benefit of and bind the parties hereto and their respective successors and assigns. Seller shall not assign this Agreement without Wal-Mart's consent, which consent may be withheld in Wal-Mart's sole discretion. Wal-Mart shall have the unrestricted right to assign this Agreement to any corporation, partnership, limited liability company, company controlled by shares, business trust, or any party or entity which, by virtue of direct or indirect ownership interests, controls, is controlled by, or is under common control with Wal-Mart. -13- V•1WS71\!rill fine \Myrrh... A nS A.v 23. Non Foreign Affidavit. Seller agrees to execute, at the Closing, the Transferor Form attached hereto as Exhibit "D" and made a part hereof, in compliance with Section 1445 of the Internal Revenue Code. It is understood that if there are multiple Sellers, each Seller shall execute a Transferor Form at the Closing. 24. Effective Date The Effective Date of this Agreement and the "Opening of Escrow" shall be the last date on which all parties hereto have executed this Agreement. 25. Recording of _Memorandum The parties agree to execute, acknowledge and record a memorandum of this Agreement, which Wa1-Mart covenants to release of record if it terminates this Agreement. 26. Additional Warranties by Seller. (A) Seller hereby represents and warrants to Wal-Mart that to the best of Seller's knowledge, the Property is not contaminated with, nor threatened with contamination from outside sources by, any chemical, material or substance to which exposure is prohibited, limited or regulated by any federal, state county, local or regional authority or which is known to pose a hazard to health and safety and that the Property has never been used for a landfill, dump site, or storage of hazardous substances. Seller also agrees (a) to provide Wal-Mart with copies (received or obtained by Seller) of any communications between Seller, or its tenants, or their agents or predecessors and any third parties, including but not limited to, governmental authorities relative to any Hazardous Material (as defined below) on, under, in, about near or affecting the Property, and (b) that nondisclosure of any such communication prior to the closing of Escrow shall be deemed an affirmative representation that no such communication has been received by or is known to Seller, its officers, employees or agents and (c) that Wal-Mart is hereby granted the right (but not the obligation) to participate in any proceeding with any governmental agency or court relative to any Hazardous Materials on, in, under, about, near or affecting the Property. This representation and warranty shall survive the Closing. In the event that Wal-Mart notifies Seller that the representation set forth in Section 26 is untrue and such notice is accompanied by a report from an engineering company with experience in evaluating such matters, then one of the following alternatives shall control. (1) If the cost of performing such acts as may be necessary to cause the Property to be in compliance with all federal, state and local environmental laws, rules and regulations is equal to or less than one-half (1/2) of the Purchase Price of the Property, then Seller agrees, at its sole cost and expense, to perform such -14- N•1 WS911fYY1\Il.r\I>\nrhee..A nS .I.v acts as may be necessary to cause the Property to be in compliance with all federal, state and local environmental laws. In the event that Seller fails so to perform such acts prior to the Closing, then Wa1-Mart may postpone the Closing for such period of time as may be necessary for Seller to do so, or, postpone the Closing and undertake such actions as may be necessary to fulfill Seller's obligations hereunder and receive a credit against the Purchase Price for the expenses incurred by Wal-Mart in so fulfilling Seller's duties hereunder. (2) If the cost of bringing the Property into compliance with the above described laws, rules, and regulations exceeds one-half (1/2) of the Purchase Price of the Property, then Wa1-Mart, at its election, may either (a) rescind this agreement and receive a full refund from Seller of all Earnest money previously deposited with Seller, or (b) proceed with purchasing the Property, and receive a credit against the Purchase Price of the Property in an amount equal to one-half (1/2) of the Purchase Price. If the Closing has occurred and the costs of performing any acts as may be necessary to cause the Property to be in compliance with all federal, state, and local environmental laws, rules and regulations is equal to or less than one-half (1/2) of the Purchase Price of the Property, then Seller agrees to refund to Wa1-Mart the cost of such acts. If the Closing has occurred and the cost of bringing the Property into compliance with the above described laws, rules and regulations exceeds one-half (1/2) of the Purchase Price of the Property then Wa1-Mart, at its option may either (a) rescind and reverse the Closing and receive a full refund of the Purchase Price and costs incurred as a part of the Closing or (b) retain ownership of the Property and receive from Seller an amount equal to one-half (1/2) of the Purchase Price paid at the Closing. (B) As used in this Agreement the term "Hazardous Materials" means any hazardous, toxic, infectious or explosive substance, material, gas or waste which is or becomes regulated by any governmental authority, or the United States Government, or any of their agencies, or which has been identified as a toxic, cancer causing or otherwise hazardous substance. The term ""Hazardous Materials" includes, without limitation, any material or substance which is (a) defined as a "hazardous waste", "extremely hazardous waste" or "restricted hazardous waste" under the California Health and Safety Code, Division 20, Chapter 6.5, as it may from time to time be amended (the "Hazardous Waste Control Law"), (h) defined as a "hazardous substance" under the California Health and Safety Code, Division 20, Chapter 6.8 as now existing or hereinafter amended (the "Carpenter -Presley -Tanner Hazardous Substance Account Act"), (c) defined as a "hazardous material", "hazardous substance", or "hazardous -15- 1S \WS71 WW1 \Tlte•\u„n•hacn A ne tine. waste" under the California Health and Safety Code, Division 20, Chapter 6.95 as presently existing or hereinafter amended (the "Hazardous Materials Release Response Plans and Inventory"), (d) defined as a "Hazardous Substance" under the California Health and Safety Code, Division 20, Chapter 6.7 as presently existing or hereinafter amended (the "Underground Storage of Hazardous Substances Act"), (e) petroleum, (f) polychlorinated biphenyls ("PCB"), (g) asbestos, (h) listed under Article 9 or defined as hazardous or extremely hazardous pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, as now existing or hereinafter amended, (i) designated as a "hazardous substance" pursuant to Section 307 of the Federal Water Pollution Control Act (33 U.S.C. Section 1317), as presently existing or hereinafter amended, (j) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321), (k) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), as presently existing or hereinafter amended or (1) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), as presently existing or hereinafter amended. (C) Seller also represents that the Property is not a "hazardous waste property" or within a "border zone" as defined in California Health and Safety Code, nor is the Property subject to the requirements for notice to the California Department of Health Services, as such notice requirement is defined in California Health and Safety Code as presently existing. (D) Except as otherwise provided in this Section 26 and in Sections 14.D and 14.E, Seller shall have no liability to Wa1-Mart due to the existence of Hazardous Materials on the Property, and except as otherwise provided in this Section 26 and in Sections 14.D and 14.E, Wal-Mart does hereby release Seller from all liability for loss to Wal-Mart or claim for damages by Wal-Mart, including costs and attorney fees, arising from the existence of Hazardous Materials on the Property. (E) This Section 26 shall survive the Closing. 27. Survival All warranties, representations and covenants herein shall survive the Closing. 28. Condition of Property. It is understood and agreed that Wal-Mart, or its representative, has made an inspection of the property prior to the execution of this Agreement, and based on that inspection and information which may have been provided by the Seller as to -16- N•\W[11\(YY1\llc,. Pr. it”.•A ,, ,i,v the condition of the property, has entered into this Agreement. Seller hereby warrants and guarantees that the property will remain in its present condition, as of the execution of this Agreement to and including the day that title to said property is transferred to Wal-Mart, subject to the remaining terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement in quadruplicate as of the day and year first above written. [SIGNATURES FOLLOW] -17- N4wcl t\(Inn \TI.v\D,,,.6.,c,.an ,I,w ATTEST: Yeli B : hael DalaClerkY APPROVED AS TO FORM: By: George Eiser, III, City Attorney ATTEST: TRUST AssiZant Secretar (Corporate Seal) PARKING AUTHORITY OF THE CITY OF NATIONAL CITY By: Its: Chairmad "Seller" WAL-MART REAL ESTATE BUSINESS Vd714 4%1 Asst Vice President of Real Estate Date: -I-to "Wal-Mart" Appro d as to Iva! terms only by ` ZlOct-eAte rt Legal Team Date:_ P- /e _ C N•\WC)1\!m\Ilrv\I)nr.^Mcn A nc A.-, -18-