HomeMy WebLinkAbout2007 CON PA Plaza Bonita II LP - Sale and Conveyamce of APN 570-020-46, 47NOTE TO FILE
04-20-10
IN THE MATTER OF: Resolution of the Parking Authority
authorizing Chairman to execute an Agreement of Purchase
and Sale and Joint Escrow Instructions and a Grant Deed
with Plaza Bonita II LP for the sale and conveyance of
parcels located on the northeast corner of Plaza Bonita
Road and Bonita Mesa Road (APNs 570-020-46 and 570-
020-47). Please note the following:
A FULLY EXECUTED ORIGINAL AGREEMENT AND
GRANT DEED WERE NEVER FILED WITH THE
OFFICE OF THE CITY CLERK
ORIGINATING DEPARTMENT: _ CDC Housing & Grants
_ City Attorney _ Human Resources
City Manager _ MIS
Community Svcs. X Parking Authority
Engineering _ Police
_ Finance _ Public Works
Fire
• 10-04-07 - Forwarded to Colby Young in CDC 3 partially executed original agreements
and 1 fully executed original grand deed to bring to the escrow company for
processing. Requested that fully executed original documents be returned to
the Office of the City Clerk.
• 11-04-07 - Per Colby Young in CDC, fully executed original documents have not yet
been received.
NTF
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
TO: Chicago Title Insurance Company
24300 Town Center Drive, Suite #320
Valencia, CA 91355
P: (661) 753-5701 F: (661) 753-5730
("Escrow Holder")
Escrow No.:
Escrow Officer: Maggie Watson
Title Order No.: 73010378-U 13
Title Officer:
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS ("Agreement") is made and entered into as of this 18th day of September 2007,
by and between the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public
body, corporate, and politic, ("Seller"), and PLAZA BONITA II LP, a Delaware limited
partnership, ("Buyer").
RECITALS
A. Seller desires to sell and convey to Buyer all of Seller's right, title and interest in and to
the following:
1. That certain real property located in the City of National City, County of San
Diego, State of California depicted by Exhibit "A" attached hereto ("Land") and described in
Exhibit `B" attached hereto, together with any and all other improvements located thereon (the
"Improvements"). The Land and Improvements are located on Assessor Parcel Number 570-020-
46 and 47, within National City, California, 91950.
2. All rights, privileges, easements and appurtenances benefiting the Land and/or the
Improvements, including, without limitation, all mineral and water rights and all easements,
rights -of -way and other appurtenances used or connected with the beneficial use or enjoyment of
the Land and/or the Improvements (the Land, the Improvements and all such rights, privileges,
easements and appurtenances are collectively referred to as "Real Property").
3. All personal property, furniture, machinery, equipment, supplies and fixtures
(collectively "Personal Property") owned by Seller and located on the Land; and
4. All of Seller's interest in any intangible property used or useful in connection with
the foregoing, including, without limitation, all contract rights, warranties, guaranties, licenses,
permits, certificates, consents, entitlements, governmental approvals, certificates of occupancy
which benefit the Real Property and/or the Personal Property and claims against insurance
policies in existence prior to the Close of Escrow ("Intangible Personal Property"). The Real
Property, the Personal Property, and the Intangible Personal Property are sometimes collectively
hereinafter referred to as the "Property."
B. Seller desires to sell the Property to Buyer and Buyer desires to purchase the Property
from Seller upon the terms and conditions hereinafter set forth.
Plaza Bonita Parcels Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer agree that the terms and conditions of this Agreement
and the instructions to Escrow Holder with regard to the escrow ("Escrow") created pursuant
hereto are as follows:
1. PURCHASE AND SALE. Seller agrees to sell the Property to Buyer, and Buyer
agrees to purchase the Property from Seller, upon the terms and conditions herein set forth.
2. PURCHASE PRICE. The total purchase price for the property shall be Two
Hundred Sixty Five Thousand Dollars ($265,000).
3. ESCROW.
3.1. Opening of Escrow. Escrow shall be deemed opened on the date Escrow
Holder receives a fully executed original or originally executed counterparts of this Agreement
from both Buyer and Seller (such date being the "Opening of Escrow"). Escrow Holder shall
notify Buyer and Seller in writing of the date Escrow is opened. Buyer and Seller agree to
execute, deliver and be bound by any reasonable or customary supplemental escrow instructions
of Escrow Holder or other instruments as may reasonably be required by Escrow Holder to
consummate the transaction contemplated by this Agreement. Any such supplemental
instructions shall not conflict with, amend or supersede any portions of this Agreement. If there
is any conflict or inconsistency between such supplemental instructions and this Agreement, this
Agreement shall control.
3.2. Close of Escrow. "Close of Escrow" shall be the date that the Grant Deed,
the form of which is attached hereto as Exhibit "C" ("Grant Deed"), conveying the Property to
Buyer, is recorded in the Official Records of San Diego County, California ("Official Records").
Unless extended in writing by Buyer and Seller or unless extended pursuant to the terms and
provisions of Section 6.1.2 hereof, the Close of Escrow shall occur on date (the "Closing Date")
which is the later of the tenth (10th) day following the date on which all conditions to Buyer's
obligation to consummate the purchase of the Property, as more particularly set forth in Section
6, are fully and timely satisfied by Seller or waived by Buyer; provided, however, that if the
Closing Date does not occur by November 2, 2007, then Buyer or Seller may terminate this
Agreement and the Escrow shall terminate. Seller shall deliver possession of the Property to
Buyer upon the close of Escrow, subject only to the "Approved Condition of Title" (as defined in
Section 4 below) and the provisions of the Grant Deed.
4. CONDITION OF TITLE. Buyer has received a Preliminary Report dated as of
April 25, 2007, issued by the Chicago Title Company under Order File No. 73010378-U13
describing the state of title of the Real Property (the "Title Report"). Anything to the contrary
herein notwithstanding, Buyer shall be deemed to have automatically objected to all of the
following, which shall be deemed to be Disapproved Exceptions: (i) all deeds of trust,
mortgages, judgment liens, federal and state income tax liens, delinquent general and special real
property taxes and assessments and any other similar monetary encumbrances affecting the
Plaza Bonita Parcels 2 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
Property; and (ii) all leases, parking agreements, licenses and occupancy agreements. Seller shall
remove all such Disapproved Exceptions specifically listed in this paragraph prior to or
concurrently with the Closing Date.
As used herein, the term "Approved Condition of Title" shall mean the following
approved conditions of and exceptions to title:
4.1. A lien to secure payment of real estate taxes, not delinquent;
4.2. The lien of supplemental taxes assessed pursuant to Chapter 3.5
commencing with Section 75 of the California Revenue and Taxation Code ("Code"), but only to
the extent that such supplemental taxes are attributable to the transaction contemplated by this
Agreement. Seller shall be responsible for, and shall indemnify, protect, defend (with counsel
chosen by Buyer) and hold harmless Buyer and the Property from and against any and all
supplemental taxes assessed pursuant to the Code, to the extent that such taxes relate to events
(including, without limitation, any changes in ownership and/or new construction) occurring
prior to the Close of Escrow;
4.3. Matters affecting the Property which are created by or with the written
consent of Buyer; and
4.4. All exceptions that are disclosed by the Report described in Section 6.1.1
hereof and which are approved by Buyer in accordance with Section 6.1.1.
Seller covenants and agrees that during the term of the Escrow, it will not
cause or permit any new exceptions to title to the Property. Any liens, encumbrances,
encroachments, easements, restrictions, conditions, covenants, rights, rights -of -way or other
matters affecting the Approved Condition of Title which may appear on or off record or be
revealed after the date of the Report described in Section 6.1.1 below shall also be subject to
Buyer's approval.
5. TITLE POLICY. It shall be a condition to Buyer's obligation to consummate
the transaction contemplated in this agreement and title shall be evidenced by the willingness and
ability of Escrow Holder in its capacity as title insurer ("Title Company") to issue upon the
Closing Date to Buyer its CLTA Standard Coverage Policy of Title Insurance ("Title Policy") in
the amount of Two Hundred Sixty Five Thousand Dollars ($265,000) with such endorsements as
Buyer may reasonably request, showing title to the Property vested in Buyer and subject only to
the Approved Condition of Title.
6. CONDITIONS TO CLOSE OF ESCROW.
6.1. Conditions to Buyer's Obligations. The Close of Escrow and Buyer's
obligation to consummate the transaction contemplated by this Agreement are subject to the
satisfaction of the following conditions for Buyer's benefit which shall be evidenced only by
Buyer's written approval or waiver on or prior to the dates designated below for the satisfaction
of such conditions.
Plaza Bonita Parcels 3 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
In the event that Buyer either terminates this Agreement pursuant to the
terms of this Section 6 or fails or declines to approve in writing any of the matters set forth in this
Section 6 or one or more of the following conditions to Buyer's obligations to acquire the
Property has not been approved, satisfied or waived on or before the Close of Escrow, the
Escrow created pursuant hereto shall terminate.
6.1.1. Title. Buyer shall have approved the legal description of the
Property and any matters of title as disclosed by the following documents (collectively, "Title
Documents"): (A) a standard preliminary title report issued by Title Company with respect to the
Real Property, as such report may be amended or supplemented from time to time to reflect
additional title matters or survey exceptions ("Report"); and (B) legible copies of all documents,
whether recorded or unrecorded, referred to in the Report.
Buyer shall have the right, in its sole discretion and expense, to
conduct a survey of the property.
Buyer shall have until the expiration of the Contingency Period, as
defined in subsection 6.1.2, to give Seller and Escrow Holder written notice ("Buyer's Title
Notice") of Buyer's disapproval or conditional approval of the legal description or any matters
shown in or disclosed by the Title Documents.
If Buyer disapproves or conditionally approves any of the
foregoing matters, Seller may, within five (5) days after its receipt of Buyer's Title Notice, elect
to eliminate to Buyer's sole satisfaction such disapproved or conditionally approved matters.
Within such five (5) day period, Seller shall give Buyer written notice ("Seller's Title Notice") of
those disapproved or conditionally approved matters, if any, which Seller covenants and agrees to
either eliminate from the Title Policy as exceptions to title to the Property or to ameliorate to
Buyer's satisfaction by the Closing Date as a condition to the Close of Escrow for Buyer's
benefit. If Seller does not elect in Seller's Title Notice to eliminate or ameliorate any
disapproved or conditionally approved matters as provided above, or if Buyer disapproves, in
Buyer's discretion, Seller's Title Notice, then Buyer shall have the right, by a writing delivered to
Seller and Escrow Holder prior to the Closing Date, to: (A) waive its prior disapproval, in which
event said disapproved matter(s) shall be deemed approved, or (B) terminate this Agreement and
the Escrow created pursuant hereto.
6.1.2. Review and Approval of Documents and Materials. Seller shall
deliver to Buyer within ten (10) days after the Opening of Escrow all reports (including,
environmental and soils reports), surveys, plans, permits, information, documents and materials
affecting the Property including, but not Iimited to the items set forth below which are in Seller's
possession or control or are reasonably available to Seller and to the extent Seller has actual
knowledge thereof at no expense to Seller ("Documents and Materials"). From the Opening of
Escrow until 5 p.m. on that date which is thirty (30) days after the Opening of Escrow
("Contingency Period"), Buyer shall have the right to review and approve or disapprove, in its
sole discretion, any or all of the Documents and Materials; provided, however, the Contingency
Period and Closing Date shall be extended by one (1) day for every day that Seller is late in
Plaza Bonita Parcels 4 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
delivering any of the Documents and Materials or any of the Title Documents beyond the date
that Seller is required hereunder to deliver the same to Buyer.
6.1.2.1. Improvement Plans. Complete "as -built" plans,
drawings and specifications relating to all of the Improvements ("Improvement Plans");
6.1.2.2. Agreements. Legible copies of any and all insurance
policies, construction contracts, leases, licenses, rental agreements, warranties, management
contracts, maintenance contracts, service contracts, reciprocal easement agreements, if any,
utility will -serve letters and any other contracts or agreements affecting or relating to the
ownership, operation, maintenance, construction or development of the Property, including,
without limitation, copies of all warranties and guaranties with respect thereto (collectively
"Contracts");
6.1.2.3. Soils and Engineering Reports. All existing and
available soils, environmental and building reports, assessments and surveys and engineering
data pertaining to the Real Property or any portion thereof and any and all architectural studies,
grading plans, topographical maps and similar data respecting the Real Property;
6.1.2.4. Maps. Any and all tentative, parcel and/or final maps
and any other governmentally approved or processed documents relative to the subdivision of the
Land ("Maps"); and
6.1.2.5. Permits, Entitlements and the Like. Any and all
building and development permits, certificates of occupancy, utility will -serve letters, use permits
and other governmental approvals and/or entitlements relative to the Property; and
6.1.2.6. Miscellaneous. Any other documents in Seller's
possession or control that relate to the Property that Buyer shall reasonably request.
6.1.3. Inspections and Studies. On or before the expiration of the
Contingency Period, Buyer shall at its own cost have the right to conduct and/or approve or
disapprove in Buyer's sole discretion, the results of any and all inspections, investigations, tests
and studies, including, without limitation, investigations with regard to zoning, environment,
building codes and other governmental regulations, architectural inspections, engineering tests,
economic feasibility studies and soils, seismic and geologic reports, as well as toxic and
environmental studies and reports with respect to the Property, inspections of all or any portion
of the Improvements (including, without limitation, structural, mechanical and electrical systems,
roofs, pavement, landscaping and public utilities), and any other physical inspections and/or
investigations as Buyer may elect to make or obtain. Buyer shall, at its own cost, have the right to
conduct a Phase I Environmental Site Assessment at its sole discretion.
6.1.4. Representations, Warranties and Covenants of Seller. Seller
shall have duly performed each and every covenant and agreement to be performed by Seller
pursuant to this Agreement and Seller's representations, warranties and covenants set forth in
Section 11 hereof shall be true and correct as of the Closing Date. Except as may be disclosed in
Plaza Bonita Parcels 5 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
any of the reports provided to the Buyer during the Contingency Period, the Seller hereby
represents and warrants to the Buyer that they have no actual knowledge, and have not received
any notice or communication from any government agency having jurisdiction over the Site, the
presence of surface or subsurface hazardous materials in, on, or under the Site, or any portion
thereof. "Actual knowledge" as used herein, shall mean the actual knowledge of the Seller and
their respective Board members, officers, managers, employees, and agents.
6.1.5. Utility Easements. On or before the end of the Contingency
Period, Buyer shall have confirmed that all water, sewer, gas, electric, telephone and drainage
facilities and all other utilities required by law are (i) installed across public property or are valid
easements to the property lines of the Land, (ii) connected with valid permits, and (iii) adequate
to service the Land and Improvements.
6.1.6. Approval. Buyer shall have received the necessary internal
approval for the acquisition of the property, which approval shall have been received no later
than close of escrow.
7. DEPOSITS BY SELLER. At least one (1) business day prior to the Close of
Escrow, Seller shall deposit or cause to be deposited with Escrow Holder the following
documents and instruments:
7.1. Grant Deed. The Grant Deed conveying the Real Property and
Improvements to Buyer duly executed by Seller, acknowledged and in recordable form in the
form attached hereto as Exhibit "C";
7.2. Non -Foreign Affidavit. Seller shall deliver an original duly executed
Non -Foreign Affidavit in the form attached hereto as Exhibit "D";
7.3. Other Instruments. Such other instruments and documents as are
described in Section 6.1.2 herein including evidence reasonably acceptable to the Title Company
that the documents delivered to Buyer by Seller have been duly authorized by Seller, duly
executed on behalf of Seller and when delivered constitute the valid and binding obligations of
Seller.
8. COSTS AND EXPENSES. Seller shall pay the cost of the CLTA Title Policy.
The escrow fee of Escrow Holder shall be shared equally by Seller and Buyer. Seller shall pay
all documentary transfer taxes and recording fees payable in connection with the recordation of
the Grant Deed. Buyer and Seller shall pay, respectively, the Escrow Holder's customary charges
to buyers and sellers for document drafting, recording and miscellaneous charges. If, as a result
of no fault of Buyer or Seller, Escrow fails to close, Buyer and Seller shall share equally all of
Escrow Holder's fees and charges.
9. PROBATIONS. The following prorations between Seller and Buyer shall be
made by Escrow Holder computed as of the Close of Escrow.
Plaza Bonita Parcels 6 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
9.1. Taxes. Real and personal property taxes and assessments on the Property
shall be prorated as of the Close of Escrow.
9.2. Utilities. Gas, water, electricity, heat, fuel, sewer and other utilities
relating to the Property shall be prorated as of the Close of Escrow. If the parties are unable to
obtain final meter readings as of the Close of Escrow, such expenses shall be estimated as of the
Close of Escrow on the basis of the prior operating history of the Property.
At least one (1) business day prior to the Close of Escrow, the parties shall
agree upon all of the prorations to be made and submit a statement to Escrow Holder setting forth
the same. In the event that any prorations, apportionments or computations made under this
Section 9 shall require final adjustment, then the parties shall make the appropriate adjustments
promptly when accurate information becomes available and either party hereto shall be entitled to
an adjustment to correct the same. Any corrected adjustment or proration shall be paid in cash to
the party entitled thereto.
10. DISBURSEMENTS AND OTHER ACTIONS BY ESCROW HOLDER.
Upon the Close of Escrow, Escrow Holder shall promptly undertake all of the following in the
following manner:
10.1. Prorations. Prorate all matters referenced in Section 9 based upon the
statement delivered into Escrow signed by the parties;
10.2. Recordinz. Cause the Grant Deed and any other documents which the
parties hereto may mutually direct, to be recorded in the Official Records in the order directed by
the parties;
10.3. Funds. From funds to be deposited by the parties, pay all items
chargeable to the account of the parties;
10.4. Documents to Buyer. Deliver to Buyer originals of any documents which
are to be delivered to Buyer hereunder, and, when issued, the Title Policy; and
10.5. Title Policy. Direct the Title Company to issue the Title Policy to Buyer
effective as of the Closing Date.
11. COVENANTS OF SELLER. Seller hereby covenants with Buyer as follows:
11.1. No Further Contracts. From and after the date of this Agreement, Seller
shall not, without the prior written consent of Buyer, which consent Buyer may withhold in its
sole discretion, enter into any agreement, lease, license, easements, or contract, or any
modification of any agreement or contract, affecting or relating to the Property which will
survive the Close of Escrow or will otherwise affect the use, operation, development, or
enjoyment of the Property after the Close of Escrow. Seller shall be solely responsible for all
obligations imposed under any contract which Buyer elects not to accept.
Plaza Bonita Parcels 7 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47
and Joint Escrow Instructions
11.2. Notification. Seller shall promptly notify Buyer of any change in any
condition with respect to the Property or of any event or circumstances which makes any
representation or warranty of Seller to Buyer under this Agreement untrue or misleading, and of
any covenant of Seller under this Agreement which Seller will be incapable of performing or less
likely to perform.
12. REPRESENTATIONS AND WARRANTIES. In consideration of the parties
entering into this Agreement, the parties make the following covenants, representations and
warranties, each of which shall survive the Closing, is material and is being relied upon by the
parties and the continued truth and accuracy of which shall constitute a condition precedent to
Buyer's obligations hereunder.
12.1. Representations Regarding Parties' Authority.
12.1.1. The parties have the legal power, right and authority to enter into
this Agreement and the instruments referenced herein, and to consummate the transaction
contemplated hereby;
12.1.2. All requisite action (corporate, trust, partnership or otherwise)
has been taken by the parties in connection with the entering into this Agreement, the instruments
referenced herein, and the consummation of the transaction contemplated hereby. As to Seller,
this Agreement was authorized by the Parking Authority of National City Resolution No. 2007 —
dated , 2007. No further consent of any judicial or administrative
body, governmental authority or other party, entity or person is required;
12.1.3. The individuals executing this Agreement and the instruments
referenced herein on behalf of the parties have the legal power, right, and actual authority to bind
the parties to the terms and conditions hereof and thereof;
12.1.4. This Agreement and all documents required hereby to be executed
by the parties are and shall be valid, legally binding obligations of and enforceable against the
parties in accordance with their terms; and
12.1.5. Neither the execution and delivery of this Agreement and the
documents and instruments referenced herein, nor the consummation of the transaction
contemplated herein, nor compliance with the terms of this Agreement and the documents and
instruments referenced herein conflict with or result in the material breach of any terms,
conditions or provisions of, or constitute a default under, any bond, note, or other evidence of
indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement,
lease or other agreement or instrument to which the parties are a party or affecting the Property.
12.2. Actions. Except as shown by the Report, to Seller's knowledge there are,
and at the Close of Escrow there will be, no pending actions, suits, arbitrations, claims or
proceedings, at law, in equity or otherwise, affecting, or which may affect, all or any portion of
the Property or in which Seller is or will be a party by reason of Seller's ownership of the
Property, including, but not limited to, judicial, municipal or administrative proceedings in
Plaza Bonita Parcels 8 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
eminent domain, collection actions, federal, state or local agency actions regarding
environmental matters, federal environmental protection agency or zoning violations,
employment discrimination or unfair labor practices, or worker's compensation, personal injuries
or property damages alleged to have occurred at the Property or by reason of the condition or use
of or construction of the Property. Seller has not filed or been the subject of any filing of a
petition under the Federal Bankruptcy Law or any insolvency laws, or any laws for composition
of indebtedness on for the reorganization of debtors. Seller is not aware of the existence of any
threatened or contemplated actions, claims or proceedings.
12.3. Agreements and Leases. To Seller's knowledge there are no agreements,
leases, licenses, and contracts (whether oral or written), affecting or relating to the right of any
party with respect to the possession of the Property, or any portion thereof, which are obligations
which will affect the Property or any portion thereof subsequent to the recordation of the Grant
Deed except as set forth in the Contracts provided to and approved by Buyer in accordance with
Section 6.1.2.2 hereof, or as may be reflected in the Approved Condition of Title;
12.4. Documents True. To Seller's knowledge all documents delivered by
Seller to Buyer pursuant to this Agreement are true, accurate, correct and complete copies of
originals and any and all information prepared by Seller or at Seller's direction and supplied to
Buyer by Seller in accordance with Section 7 hereof are true, accurate, correct and complete;
12.5. No Other Documents. The documents delivered by Seller to Buyer
pursuant to Section 6.1.2 above are all of the documents known by Seller to exist relative to the
use, ownership, maintenance, management and construction on or of the Property. Seller has not
assigned its rights thereunder to any other person, firm or entity;
12.6. No Notices. Seller has received no notice or does not have any knowledge
of (i) any change contemplated in any applicable laws, ordinances or restrictions, (ii) any judicial
or administrative action, (iii) any action by adjacent landowners, or (iv) natural or artificial
conditions upon the Property or adjoining property which would prevent, impede, limit or render
more costly Buyer's contemplated use or development of the Property;
12.7. Taxes. Other than the amounts disclosed by the tax bills delivered to
Buyer by Seller, to Seller's knowledge no other real property taxes or assessments have been or
will be assessed against the Real Property for the current tax year. Seller has no knowledge, and
Seller has received no notice to the contrary, of any special assessments or charges which have
been levied against the Property or which will result from work, activities or improvements done
to the Property by Seller or of any intended public improvements which will result in any charge
being levied against, or in the creation of any lien upon, the Property or any portion thereof;
12.8. FIRPTA. Seller is not a "Foreign Person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986; and
12.9. Representations and Warranties at Closing. The representations and
warranties of the parties set forth in this Agreement shall be deemed to be remade and restated by
Seller on and as of the Close of Escrow.
Plaza Bonita Parcels 9 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
13. NOTICES. All notices or other communications required or permitted hereunder
shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express
or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or
sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex,
telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally
delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by
overnight mail, the business day following its deposit in such overnight mail facility, (iii) if
mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is
outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or
other like facility regularly maintained by the United States Postal Service, (iv) if given by
telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given
by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other
communication delivered or sent as specified above shall be directed to the following persons:
To BUYER:
Westfield, LLC.
Attention: Legal Department
11601 Wilshire Boulevard, 11th Floor
Los Angeles, CA 90025
To SELLER:
Brad Raulston
Executive Director
Community Development Commission
of National City
1243 National City Boulevard
National City, CA 91950
With a COPY to:
George H. Eiser, ill
Legal Counsel
1243 National City Boulevard
National City, CA 91950
Notice of change of address shall be given by written notice in the manner
specified in this Section. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to constitute receipt of the notice,
demand, request or communication sent. Any notice, request, demand, direction or other
communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-
eight (48) hours by letter mailed or delivered as specified in this Section.
14. MISCELLANEOUS.
14.1. Survival of Covenants. The covenants, representations and warranties of
Seller set forth in this Agreement shall survive the recordation of the Grant Deed and the Close
of Escrow.
14.2. Required Actions of Buyer and Seller. Buyer and Seller agree to execute
such instruments and documents and to diligently undertake such actions as may be required to
Plaza Bonita Parcels 10 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
consummate the purchase and sale herein contemplated and shall use their best efforts to
accomplish the Close of Escrow in accordance with the provisions hereof.
14.3. Computation of Time Periods. If the date upon which the Contingency
Period expires, the Closing Date or any other date or time period provides for in this Agreement
is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall
automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday,
Sunday or federal, state or legal holiday.
14.4. Counterparts. This Agreement may be executed in multiple originals or
counterparts, each of which shall be deemed an original, but all of which, together, shall
constitute but one and the same instrument.
14.5. Captions. Any captions to, or headings of, the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
14.6. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto.
14.7. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes.
14.8. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties hereto.
14.9. Waiver. The waiver or failure to enforce any provision of this Agreement
shall not operate as a waiver of any future breach of any such provision or any other provision
hereof.
14.10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
14.11. Fees and Other Expenses. Except as otherwise provided herein, each of
the parties hereto shall pay its own fees and expenses in connection with this Agreement.
14.12. Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, and contains the entire agreement between
Buyer and Seller as to the subject matter hereof. No subsequent agreement, representation, or
promise made by either party hereto, or by or to an employee, officer, agent or representative of
either party hereto shall be of any effect unless it is in writing and executed by the party to be
bound thereby.
Plaza Bonita Parcels
11 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
14.13. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto. This Agreement shall not
be assigned by Buyer without Seller's prior written consent; provided, however, Buyer shall have
the right to assign Agreement to its affiliates without Seller's consent, and provided further that
in order to be valid, any such assignment shall include a provision that binds the assignee to
comply with all conditions of approval under Resolution No. 40-2005.
14.14. Construction. The parties acknowledge and agree that (i) each party is of
equal bargaining strength, (ii) each party has actively participated in the drafting preparation and
negotiation of this Agreement, (iii) each such party has consulted with party's own, independent
counsel, and such other professional advisors as such party has deemed appropriate, relative to
any and all matters contemplated under this Agreement, (iv) each party and such party's counsel
and advisors have reviewed this Agreement, (v) each party has agreed to enter into this
Agreement following such review and the rendering of such advice, and (iv) any rule or
construction to the effect that ambiguities are to be resolved against the drafting party shall not
apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto.
15. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this
Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute
by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of
the American Arbitration Association the ("AAA") before resorting to arbitration. The costs of
mediation shall be borne equally by the parties. Any controversy or claim arising out of, or
relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled
by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of
the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a
judgment thereon may be entered in any court having jurisdiction over the subject matter of the
controversy. The expenses of the arbitration shall be borne equally by the parties to the
arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence
and attorneys' fees, except that the arbitrator may assess such ex . se. o any part thereof
against a specified party as part of the arbitration award.
R•\ •
Buyer's Initials Selle .' Initials
-- Signature Page to Follow --
Plaza Bonita Parcels 12 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow instructions
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
BUYER SELLER
PLAZA BONITA II LP PARKING AUTHORITY OF NATIONAL
a Delaware limited partnership CITY,a-lfjblic body, corporate, and politic
By: Plaza Bonita Parking GP LLC,
a Delaware limited liability company,
its general partner
By: Westfield America Limited Partnership,
a Delaware limited partnership,
its sole member
By:
Name:
Title:
By:
Name:
Title:
By: Westfield U.S. Holdings, LLC,
a Delaware limited liability company,
rtner
Aisne Taireh
Assistant Secretary
Acceptance by Escrow IIolder:
on Morrison, Chairman
Chicago Title insurance Company hereby acknowledges that it has received a fully executed
original or original executed counterparts of the foregoing Agreement of Purchase and Sale and
Joint Escrow Instructions and agrees to act as Escrow Holder thereunder and to be bound by and
strictly perform the terms thereof as such terms apply to Escrow IIolder.
Dated:
, 2007. Chicago Title Insurance Company
a corporation
By:
Its Authorized Agent
Plaza Bonita Parcels
13 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
APN# 570-020-46
EXHIBIT B
A11 that certain real property situated in the County of San Diego, State of
California, described as follows:
All that portion of Lot 10 of L. W. Kimball's Subdivision of parts of Quarter
Sections 98, 99, 110 and 111 of National Ranch, in the City of National City,
County of San Diego, State of California, according to Map thereof No. 63, and
described in Deed to said County of San Diego recorded July 29, 1976 as
File/Page No. 76-240241 in the Office of the County Recorder of said County,
described as follows:
Beginning at a point on the Northerly line of said Lot 10, said point being 20.00
feet Westerly, measured at right angles, of the centerline of the National City
and Otay Railway (also known as the San Diego and Arizona Eastern Railway)
right of way;
Thence, along said Northerly line of Lot 10, South 71° 42' 30" West, 159.51 feet
to the Northeasterly sideline of Plaza Bonita Road as dedicated by the San Diego
County Board of Supervisors by Resolution dated March 19, 1985, Item No. 44,
on file in the Office of the Clerk of said Board of Supervisors;
Thence along said Northeasterly sideline, South 52° 56' 46" East, 353.29 feet to
the Southwesterly sideline of said railway right of way;
Thence along said Southwesterly sideline, North 26° 23' 42" West, 293.59 feet to
the point of beginning.
APN# 570-020-47
EXHIBIT B
All that certain real property situated in the County of San Diego, State of
California, described as follows:
All that portion of Lot 10 of L. W. Kimball's Subdivision of Parts of Quarter
Sections 98, 99, 110 and 111 of Rancho De La Nacion, in the County of San
Diego, State of California, according to Map thereof No. 63, filed in the Office of
the County Recorder of said San Diego County, May 11, 1885, conveyed by deed
from the San Diego and Arizona Railway Company, a Corporation, to A. B. Titus
and recorded June 6, 1922 in Book 882, Page 406 of Deeds, filed in the Office of
the County Recorder of San Diego County, and described as follows:
That certain parcel of land located in the former railway right of way of the San
Diego and South Eastern Railway Company, in the County of San Diego, State of
California, described as follows:
A strip of land 40 feet in width being 20 feet on each side of the center line of
Tract of the former San Diego and Southeastern Railway Company's Sweetwater
Branch, lying across the West 510 feet of Southeast Quarter of Quarter Section
110 of the Rancho De La Nacion, in the County of San Diego, State of California,
according to map thereof by Morrill, filed in the Office of the County Recorder of
said County, said strip of land being particularly described by a line running as
follows:
Commencing at a point on the North line of the Southeast Quarter of said
Quarter Section 110, 993.82 feet from the Northeast corner thereof. Said point
being also known as Engineer's Survey Station 66 plus 86.87 of said former
center line of Tract.
Thence South 71° 47' West along said North line 20.2 feet;
Thence South 26° 24' East 459.6 feet;
Thence on a curve concave to the left with a radius of 593.69 feet and tangent to
the last described course a distance of 339.1 feet;
Thence North 18° 14' West, 31.3 feet to a point known as Engineer Survey
Station 74 plus 47.18 of said former center line of Tract;
Thence continuing North 18° 14' West 33.1 feet;
Thence on a curve concave to the right with a radius of 553.69 feet, and tangent
to a line which bears North 54° 05" West 453.8 feet to a point on the North line
of said Southeast Quarter;
Thence South 71° 47' West 20.2 feet to the point of commencement.
Excepting therefrom that portion conveyed to the County of San Diego by Grant
Deed recorded April 24, 1981 as File no 1981-131523 of Official Records.
Exhibit C
Grant Deeds
Plaza Bonita Parcels 14 Agreement of Purchase and Sale
Assessor Parcel Number 570-020-46 & 47 and Joint Escrow Instructions
RECORDING REQUESTED BY:
The Parking Authority of the City of National City
1243 National Avenue
National City, California 92050.
AND WHEN RECORDED MAIL TO:
Plaza Bonita II, LP, a Delaware Limited Partnership
c/o Westfield, LLC
1 1601 Wilshire Boulevard, 11th Floor
1,os Angeles, CA 90025
APN No. 570-020-46
GRANT DEED
THE UNDERSIGNED GRANTOR DECLARES:
DOCUMENTARY TRANSFER TAX $0.00
❑Unincorporated Area/ • City of San Diego
❑computed on full value of property conveyed, or
❑computed on full value less value of liens and
encumbrances remaining at the time of sale
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, CALIFORNIA, the Grantor,
Hereby GRANTS to
PLAZA BONITA II LP, a Delaware Limited Partnership, that certain real property (the "property") in the City of
National City, County of San Diego, State of California, more particularly described as:
All that portion of Lot 10 of L.W. Kimball's Subdivision of parts of Quarter Sections
98, 99, 110 and 111 of National Ranch, in the City of National City, County of San Diego
State of California, according to Map thereof No. 63, and described in Deed to said
County of San Diego recorded July 29, 1976 as File/Page No. 76-240241 in the Office
of theCounty Recorder of Said County, described as follows:
Beginning at a point on the Northerly line of said Lot 10, said point being 20.00 feet
Westerly, measured at right angles, of the centerline of the National City and Otay
Railway (also known as the San Diego and Arizona Eastern Railway) right of way;
Thence, along said Northerly line of said Lot 10, South 71° 42' 30" West, 159.51 feet
to the Northeasterly sideline of Plaza Bonita Road as dedicated by the San Diego County
Board of Supervisors by Resolution Dated March 19, 1985, Item No. 44, on file in the
Office of the Clerk of said Board of Supervisors;
Thence along said Northeasterly sideline, South 52° 56' 46" East, 353.29 feet to the
Southwesterly sideline of said railway right of way;
Thence along said Southwesterly sideline, North 26° 23' 42" West, 293.59 feet to the point of
beginning.
Dated: 9/18/07
The Parki
Califor
By:
Ro Morrison, Chairman
uthority of the City of National City,
CERTIFICATION OF NON -FOREIGN STATUS
The Parking Authority of the City of National City, a public body, corporate,
and politic ("Seller"), is the transferor of that certain real property located in the City of National
City, County of San Diego, State of California and more particularly described in Exhibit A
attached hereto (the "Property").
Section 1445 of the Internal Revenue Code of 1986 (the "Code") provides that a
transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.
To inform the transferee that withholding of tax will not be required in connection with the
disposition of the Property pursuant to that certain Purchase and Sale Agreement and Joint
Escrow Instructions dated as of July 17, 2007, by and between Seller and Plaza Bonita II LP, the
undersigned hereby certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign trust or
foreign estate, as those terms are defined in the Code and the regulations promulgated
thereunder;
2. Seller's U.S. employer identification number is 95-6000749; and
3. Seller's address is 1243 National City Boulevard, National City, CA
91950. It is understood that this certificate may be disclosed to the Internal Revenue Service and
that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury the undersigned declares that it has examined the foregoing
certification and, to the best of its knowledge and belief, it is true, correct and complete, and the
person(s) executing the foregoing on behalf of Seller have the authority to sign this document on
behalf of Seller.
Date:
September 18, 2007
SELLER:
PARKING A
By:
ORITY OF NATIONAL CITY
Ron Morrison, Chairman
RECORDING REQUESTED BY:
The Parking Authority of the City of National City
1243 National Avenue
National City, California 92050.
AND WHEN RECORDED MAIL TO:
Plaza Bonita II LP, a Delaware Limited Partnership
c/o Westfield, LLC
11601 Wilshire Blvd, 11th Floor
Los Angeles, CA 90025
APN No. 570-020-47
GRANT DEED
THE UNDERSIGNED GRANTOR DECLARES:
DOCUMENTARY TRANSFER TAX a0.00
❑Unincorporated Area/ • City of San Diego
❑computed on full value of property conveyed, or
❑computed on full value less value of liens and
encumbrances remaining at the time of sale
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, CALIFORNIA, the Grantor,
Hereby GRANTSS to
PLAZA BONITA II, LP, a Delaware Limited Partnership, that certain real property (the "property") in the City of
National City, County of San Diego, State of California, more particularly described as:
All that portion of Lot 10 of L.W. Kimball's Subdivision of Parts of Quarter
Sections 98, 99, 110 and 111 of Rancho De La Nacion, in the County of San
Diego, State of California, according to Map thereof No. 63 filed in the Office
of the County Recorder of said San Diego County, May 11, 1985, conveyed
by deed from the San Diego and Arizona Railway Company, a Corporation,
to A.B. Titus and recorded June 6, 1922 in Book 882, Page 406 of Deeds, filed
in the Office of the County Recorder of San Diego County and described
as follows:
That certain parcel of land located in the former railway right of way of the San
Diego and South Eastern Railway Company, in the County of San Diego, State of
California, described as follows:
A strip of land 40 feet in width being 20 feet on each side of the center line of
Tract of the former San Diego and Southeastern Railway Company's Sweetwater
Branch, lying across the West 510 feet of the Southeast Quarter of Quarter Section
110 of the Rancho De La Nacion, in the County of San Diego, State of California,
according to Map thereof by Morrill, filed in the Office of the County Recorder of
said County, said strip of land being particularly described by a line running as follows:
Commencing at a point on the North line of the Southeast Quarter of said Quarter
Section 110, 993.82 feet from the Northeast corner thereof. Said point being also known
as Engineer's Survey Station 66 plus 86.87 of said former center line of Tract.
Thence South 71° 47' West along said North line 20.2 feet;
Thence South 26° 24' East 459.6 feet;
Thence on a curve concave to the left with a radius of 593.69 feet and tangent to the last
described course a distance of 339.1 feet;
Thence North 18° 14' West 31.3 feet to a point known as Engineer Survey Station 74 plus
47.18 of said former center line of Tract;
Thence continuing North 18° 14' West 33.1 feet;
Thence on a curve concave to the right with a radius of 553.69 feet, and tangent to a line
which bears North 54° 05" West 453.8 feet to a point on the North line of said Southeast Quarter;
Thence South 71° 47' West 20.2 feet to the point of commencement.
Excepting therefrom that portion conveyed to the County of San Diego by Grant Deed recorded
April 24, 1981 as File No. 1981-131523 of Official Records.
Dated: 9/18/07
The Parki
Califor
By•
Roilfi4orrison, Chairman
thority of the City of National City,
RESOLUTION NO. 2007 — 7
RESOLUTION OF THE PARKING AUTHORITY
OF THE CITY OF NATIONAL CITY
AUTHORIZING CHAIRMAN TO EXECUTE
AN AGREEMENT OF PURCHASE AND SALE AND
JOINT ESCROW INSTRUCTIONS AND A GRANT DEED
WITH PLAZA BONITA 11 LP FOR THE SALE AND CONVEYANCE
OF PARCELS LOCATED ON THE NORTHEAST CORNER OF
PLAZA BONITA ROAD AND BONITA MESA ROAD
(APNS 570-020-46 AND 570-020-47)
WHEREAS, Plaza Bonita II LP has requested to acquire the Parking
Authority owned parcels located on the northeast corner of Plaza Bonita Road and
Bonita Mesa Road to facilitate the expansion of the Plaza Bonita Shopping Center; and
WHEREAS, Plaza Bonita intends to perform grading operations on the
subject parcels in order to enlarge the parking lot for the mall expansion, which is slated
for grand opening by March 2008; and
WHEREAS, the sale of the subject parcels to Plaza Bonita supports City
Strategic Plan Objective 2a of achieving fiscal sustainability, and completing the mall
expansion; and
WHEREAS, Plaza Bonita shall pay the Parking Authority the purchase
price of $265,000 for the subject parcels; and
WHEREAS, the acquisition price was determined to be the Fair Market
Value by an independent appraisal performed by Randall H. Blaesi, ASA.
NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of
National City hereby authorizes the Chairman to Execute an Agreement of Purchase
and Sale and Joint Escrow Instructions and a Grant Deed with Plaza Bonita 11 LP for the
sale and conveyance of parcels (APNS 570-020-46 and 570-020-47) located on the
northeast corner of Plaza Bonita Road and Bonita Mesa Road. Said Agreement is on
file in the office of the City Clerk.
PASSED and ADOPTED this 18th day o ept-mber, 2007.
Ron Morrison, C
ATTEST. APPROVED AS TO FORM:
Secretary George H. Eiser, 111
Legal Counsel
Passed and adopted by the Parking Authority of the City of National City, California, on
September 18, 2007, by the following vote, to -wit:
Ayes: Boardmembers Morrison, Natividad, Parra, Ungab.
Nays: None.
Absent: Boardmember Zarate.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman, Parking Authority
, Parking Authority
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2007-7 of the Parking Authority of the City of National City,
California, passed and adopted on September 18, 2007.
ygcretary, Parking Authority
By:
Deputy
City of National City, California
PARKING AUTHORITY AGENDA STATEMENT
MEETING DATE September 18, 2007 AGENDA ITEM NO 1
ITEM TITLE
Resolution of the Parking Authority of National City approving an Agreement of Purchase and Sale
and Joint Escrow Instructions with Plaza Bonita II LP for the sale and conveyance of parcels (APN
570-020-46, 47) located on the northeast comer of Plaza Bonita Road and Bonita Mesa Road,
National City, CA, and authorizing the Chairman to Execute said Agreement and Grant Deed
PREPARED BY
Xavier Del Valle, x4279
Senior Project Manager
DEPARTMENT 4,;)a
Redevelopment Division
EXPLANATION
Plaza Bonita II LP has requested to acquire the Parking Authority parcels located on the northeast corner
of Plaza Bonita Road and Bonita Mesa Road to facilitate the expansion of the Plaza Bonita Shopping
Center. Due to the physical constraints associated with the subject parcels, the most feasible use is
inclusion of the parcels into the mall expansion. Plaza Bonita intends to perform grading operations on
the subject parcels in order to enlarge the parking lot for the expansion, which is slated for grand
opening by March 2008. The sale of the Parking Authority parcels supports City Strategic Plan
Objective 2a of achieving fiscal sustainability, and completing the mall expansion. If approved, Plaza
Bonita shall pay the Parking Authority the purchase price of $265,000 for the subject parcels. The
acquisition price was determined to be the Fair Market Value by an independent appraisal performed by
Randall H. Blaesi, ASA.
Environmental Review CEQA is not applicable
Financial Statement Plaza Bonita shall pay the Parking Authority the acquisition price of $265,000 for
the subject parcels. The acquisition price was determined to be the Fair Market Value by an independent
appraisal performed by Randall H. Blaesi, ASA. Acquisition proceeds shall be deposited into the Project
Area Fund for other City revitalization activities. The City shall also benefit from additional sales tax
revenues associated with the mall expansion.
J
STAFF RECOMMENDATION The Parking Authority of National City approve an Agreement of Purchase
and Sale and Joint Escrow Instructions with Plaza Bonita II LP for the sale and conveyance of parcels (APN
570-020-46, 47) located on the northeast corner of Plaza Bonita Road and Bonita Mesa Road, National City,
CA, and authorizing the Chairman to Execute said Agreement and Grant Deed.
ATTACHMENTS Resolution No.-
1. Resolution
2. Purchase and Sale Agreement
A-200 (9/80)