HomeMy WebLinkAbout2013 CON Alturas Imperial - Purchase & Sale Agreement "G" AvenuePURCHASE AND SALE AGREEMENT
(G Avenue, South of 24th Street, National City, California)
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20th
day of August, 2013 ("Effective Date") by and between City of National City ("Seller") and
Alturas Imperial LLC, a California Limited Liability Company ("Purchaser").
RECITALS
A. The Seller owns the fee interest in that certain parcel of real property described in
Exhibit A, attached to this Agreement, and defined below, (the "Property.") The Property is in
the City of National City, California.
B. On December 18, 2012, pursuant to Resolution No. 2012-246, the City Council of
the City of National City authorized the vacation of the Property.
C. On February 19, 2013, pursuant to Resolution No. 2013-24, the City Council
declared the Property as surplus property and directed the City Engineer to dispose of the
Property in accordance with City Council Policy.
D. On July 2, 2013, pursuant to Resolution No. 2013-100, the City Council
authorized the Mayor to execute a temporary Encroachment Permit and Agreement between
Seller and Purchaser so that the Purchaser could construct a portion of a parking lot on the
Property. The Encroachment Permit expires on November 2, 2013, or upon purchase of the
Property by the Purchaser from the Seller.
E. Provided the various conditions to Closing (as defined below) set forth in this
Agreement are satisfied, the Seller agrees to sell the Property (as defined below) to the Purchaser
and the Purchaser agrees to purchase the Property from the Seller as set forth in this Agreement.
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Purchase and Sale. In consideration of the mutual covenants set forth in this Agreement,
the Purchaser will acquire all of the Property, on the terms and conditions set forth herein,
provided the various conditions to Closing set forth in this Agreement are satisfied.
(a) Sale of the Property. The Seller agrees to sell the Property to the Purchaser, and
the Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth
herein. At Closing, the Seller shall convey the fee interest in the Property to the Purchaser by
recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title Policy
(as defined below) to the Purchaser at Closing.
(b) Possession of the Property. As stated in Recital D above, the Purchaser has an
Encroachment Permit and Agreement for the Property. The Seller shall deliver possession of the
Property to Purchaser at Closing, subject only to the Title Exceptions, all as defined below.
2. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
"Agreement" means this Purchase and Sale Agreement between the Seller and the
Purchaser.
"Applicable Environmental Law" means all laws applicable to the presence of any
Hazardous Materials (as defined below) on or within the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, ct seq.); the Clean
Water Act (33 U.S.C. §2601, et seq.); the Safe Drinking Water Act (14 U.S.C. §300f, et seq.);
the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); the Toxic Substances
Control Act (15 U.S.C. §2601, et seq.); the Federal Water Pollution Control Act (33 U.S.C.
§1300, et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136, et seq.);
the Atomic Energy Act (42 U.S.C. §2011, et seq.); the Nuclear Waste Policy Act (42 U.S.C.
§10101, et seq.); the Clean Air Act (42 U.S.C. §7401, et seq.); the California Hazardous Waste
Control Act (California Health and Safety Code §25100, et seq.); the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code §25300, et seq.); the Safe
Drinking Water and Toxic Enforcement Act ("Proposition 65") (California Health and Safety
Code §25249.5, et seq.); and the Porter -Cologne Water Quality Control Act (California Water
Code §13000, et seq.); and any similar federal, state or local laws, all regulations and
publications implementing or promulgated pursuant to the foregoing, as any of the foregoing
may be amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or any other day on which
Purchaser or Escrow Agent is not open for business. In the event any date, deadline or due date
set forth in this Agreement falls on a day that is not a Business Day, then such deadline or due
date shall automatically be extended to the next Business Day.
"Close" or "Closing" means the close of Escrow as provided in this Agreement.
"Closing Date" means the date on which the Closing occurs, which date shall be
, 2013.
"Conditions Precedent for the Benefit of the Seller" shall have the meaning set forth in
Section 5 of this Agreement.
"Conditions Precedent for the Benefit of the Purchaser" shall have the meaning set forth
in Section 6 of this Agreement.
"Deposit" shall have the meaning set forth in Section 3(b)(1) of this Agreement.
"Effective Date" is defined above.
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"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Tom Votel at Chicago Title Company, 2365 Northside Dr., #500,
San Diego, CA 92108.
"Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple
title to the Property from the Seller to the Purchaser, in a form reasonably acceptable to the Seller
and Purchaser.
"Hazardous Materials" means:
(1) Those substances included within the definitions of "hazardous
substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste,"
"pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery Act
(42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic Substances
Control Act (15 U.S.C. §9601 et seq.); the Hazardous Materials Transportation Act (49 U.S.C.
§1801 et seq.); or under any other Environmental Laws.
(2) Those substances included within the definitions of "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§25115, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to §§25140
or 44321 of the California Health and Safety Code.
(3) Those substances included within the definitions of "Hazardous Material,"
"lazardous Substance," "Hazardous Waste," "Toxic Air Contaminant" or "Medical Waste"
under §§25281, 25316, 25501, 25501.1, 25023.2 or 39655 of the California Health and Safety
Code.
(4) Those substances included within the definitions of "Oil" or a "Hazardous
Substance" listed or identified pursuant to §311 of the Federal Water Pollution Control Act, 33
U.S.C. §1321, as well as any other hydrocarbonic substance or by-product.
(5) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste" or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title
22 of the California Code of Regulations.
(6) Those substances listed by the State of California as a chemical known by
the State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code.
(7) Any material which due to its characteristics or interaction with one or
more other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be rcmediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose.
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(8) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank.
(9) Pesticides regulated under the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. § 136 et seq.
(10) Asbestos, PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.
(11) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," ``low-level wastes," "high-level
radioactive waste," "spent nuclear fuel" or "transuranic waste" and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42
U.S.C. §§2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. §§10101 et seq., or pursuant to
the California Radiation Control Law, California Health and Safety Code §§25800 et seq.
(12) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 et seq., or the California Occupational Safety and Health Act, California Labor
Code §§6300 et seq.
(13) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code.
(14) Those substances listed in the United States Department of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency, or any successor
agency, as hazardous substances (40 CFR Part 302).
(15) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations.
(16) Any material, waste or substance that is a petroleum or refined petroleum
product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33
U.S.C. §1321 or listed pursuant to 33 U.S.C. §1317, a flammable explosive or a radioactive
material.
"Immediately Available Funds" means a bank wire transfer or a certified bank or
cashier's check.
"Improvements" means collectively: (i) any and all buildings, structures and
improvements, of any kind whatsoever, located at or affixed to the Property; (ii) all rights,
privileges and easements appurtenant to the Property, if any, including, without limitation, all
minerals, oil, gas and other hydrocarbon substances on and under the Property, if any; and (iii)
all development rights, air rights, and water rights if any, relating to the Property.
"Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions
in the Title Policy; (ii) real property taxes and assessments which are a lien but not yet payable;
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and (iii) all applicable building, zoning and use restrictions and/or regulations of any
municipality, township, county or state.
"Property" means the Property and the Improvements, if any.
"Purchase Price" shall have the meaning set forth in Section 3(a) of this Agreement.
"Purchaser" means Alturas Imperial LLC, a California Limited Liability Company;
provided, however, if it assigns its interest in this Agreement pursuant to Section 10 of this
Agreement, then the term "Purchaser" shall mean such assignee.
"Seller" means the City of National City.
"Title Policy" means a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, insuring that title to the fee interest in the Property is vested in the Purchaser
subject only to the Permitted Exceptions The Title Policy shall be obtained through Chicago
Title Company. Seller shall pay the cost of the CLTA Owner's Policy of Title Insurance.
Purchaser may obtain an ALTA Owner's Policy of Title Insurance, in which event Purchaser
shall pay the cost difference between the cost of the ALTA Owner's Policy of Title Insurance
and the cost of a CLTA Owner's Policy of Insurance.
3. Purchase Price.
(a) Total Purchase Price. The purchase price to be paid by the Purchaser for the
Property shall be Eighteen Thousand and No/100 dollars ($18,000.00) ("Purchase Price").
(b) Deposit; Liquidated Damages.
(1) Deposit. Purchaser shall make a deposit ("Deposit") into Escrow of
Immediately Available Funds in the amount of Five Thousand and no/100 dollars ($5,000.00)
within three (3) Business Days of the Effective Date. The Deposit shall be credited against the
Purchase Price. If the Purchaser elects to terminatc this Agreement prior to Closing, then the
Deposit shall be immediately returned by Escrow Agent to the Purchaser. At Closing, the
Deposit shall be released by Escrow Agent to the Seller. The Deposit, and any interest earned on
the Deposit, shall be credited in favor of the Purchaser against the Purchase Price as set forth in
Section 3(c), below.
(2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE
REFUNDABLE TO THE PURCHASER AS MAY BE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT HEREUNDER, THE SOLE REMEDY OF THE SELLER SHALL BE TO
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO
PURCHASER AND ESCROW AGENT, WHEREUPON THE SELLER SHALL RETAIN THE
DEPOSIT(S) ACTUALLY DEPOSITED BY PURCHASER INTO ESCROW AS
LIQUIDATED DAMAGES (AND THE SELLER WAIVES ANY RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT SET FORTH IN CALIFORNIA CIVIL CODE SECTION
1680 OR 3389). THEREAFTER, NO PARTY HERETO SHALL HAVE ANY FURTHER
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LIABILITY OR OBLIGATION TO ANY OTHER PARTY HERETO EXCEPT FOR: (i) THE
SELLER'S RIGHT TO RECEIVE AND RETAIN SUCH LIQUIDATED DAMAGES; AND (ii)
THE OBLIGATION OF THE PARTIES TO PAY AMOUNTS INTO ESCROW TO PAY A
PORTION OF THE FEES AND COSTS OF ESCROW AS SET FORTH IN SECTIONS SAND
6 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT TIIE
SELLER'S ACTUAL DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT
HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND
THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ., CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE HEREOF INCLUDING,
WITHOUT LIMITATION, THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF
POTENTIAL HARM TO THE SELLER THAT CAN REASONABLY BE ANTICIPATED
AND THE ANTICIPATION TIIAT PROOF OF ACTUAL DAMAGES RESULTING FROM
SUCH DEFAULT WOULD BE COSTLY AND INCONVENIENT. IN PLACING ITS
INITIALS IN THE SPACE BELOW, EACH PARTY HERETO SPECIFICALLY CONFIRMS
THE ACCURACY OF THE FOREGOING AND THE FACT THAT SUCH PARTY HAS
BEEN REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
THE PROVISIONS OF THIS SECTION 3(B)(2) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Seller's Initials Purchaser's Initials
(c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (I)
Business Day prior to the Closing Date, the Purchaser shall cause Immediately Available Funds
to be delivered to the Escrow Agent in an amount of equal to the Purchase Price, minus the
Deposit.
(d) Disbursement to the Seller. Immediately after the Closing. the Escrow Agent
shall disburse to the Seller the funds that the Seller is entitled to receive under this Agreement.
4. Due Diligence. The Purchaser has completed its due diligence with respect to the
Property.
5. Conditions Precedent for the Benefit of the Seller. The Seller's obligation to Close shall
be conditioned upon the satisfaction or emailed or written waiver by the Seller of all of the
conditions precedent ("Conditions Precedent for the Benefit of the Seller") set forth in this
Section 5. Any of the Conditions Precedent for the Benefit of the Seller may be waived by the
Seller unilaterally; and if so waived, such conditions shall be of no further effect hereunder. Any
such waiver shall be effective only if the same is expressly waived (i) by email from the Seller to
the Purchaser and Escrow Agent; or (ii) in a writing signed by the Seller and delivered to the
Purchaser and Escrow Agent. If the Conditions Precedent for the Benefit of the Seller are not
satisfied by the deadlines set forth in this Section 5 or expressly waived, the Seller (provided the
Seller is not in default hereunder) may provide emailed or written notice of the Seller's
conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of
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such notice of conditional termination, the Purchaser shall have ten (10) Business Days to cure
any non -satisfaction of a condition or other default specified in the notice of conditional
termination; provided, however, the foregoing grace period shall be two (2) Business Days if the
unsatisfied condition is a failure by Purchaser to deliver funds required to close on the Closing
Date. If such matter remains unsatisfied or the default remains uncured after the expiration of
such ten (10) Business Day period, then this Agreement shall terminate at the close of business
on such tenth (10th) Business Day (or second (2nd) Business Day if the unsatisfied condition is a
failure by Purchaser to deliver funds required to close on the Closing Date). In the event of
termination of this Agreement (and by operation of law the Escrow) pursuant to this Section 5,
then: (x) as set forth in the liquidated damages provision of Section 3(b)(2) above, all rights and
liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately
terminate, except those which specifically survive such termination; (y) Escrow Agent shall
deliver the Deposit to the Seller and shall return to the Seller all funds or other things deposited
in Escrow by the Seller; and (z) Escrow Agent shall return to the Purchaser all funds or other
things deposited in Escrow by the Purchaser, less the Deposit. Provided, however, all fees and
costs charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2)
by the Purchaser. Notwithstanding clause (x) of this Section 5, in the event of termination of this
Agreement pursuant to this Section 5, the Purchaser and the Seller shall cooperate with one
another, execute all documents reasonably necessary and take all reasonable steps as may he
required by Escrow Agent in order to accomplish the purposes of this Section 5.
(a) Purchaser making the Deposit into Escrow, as set forth in Section 3(b)(1), above.
(b) The delivery by the Purchaser into Escrow at least one (1) Business Day prior to
Closing of Immediately Available Funds in the amount required by Section 3(c), above.
(c) The delivery by the Purchaser into Escrow of all other documents and instruments
required by this Agreement or reasonably required by Seller and/or Escrow Agent to complete
the Closing, at least one (1) Business Day prior to Closing.
(d) Purchaser not being in default of any of its representations or warranties under
this Agreement, or any other material terms or conditions related to Purchaser.
(e) As of the Closing Date, the Purchaser has not made an assignment for the benefit
of creditors, filed a bankruptcy petition, been adjudicated insolvent or bankrupt, petitioned a
court for the appointment of any receiver of, or trustee for, the Purchaser, or commenced any
proceeding relating to the Purchaser under any reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect.
(f) This Agreement has been formally approved by resolution of the City Council of
the City of National City.
6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser's obligation to
Close shall be conditioned upon the satisfaction or emailed or written waiver by the Purchaser of
all of the conditions precedent ("Conditions Precedent for the Benefit of the Purchaser") set forth
in this Section 6. Any of the Conditions Precedent for the Benefit of the Purchaser may be
waived by the Purchaser unilaterally; and if so waived, such conditions shall be of no further
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effect hereunder. Any such waiver shall be effective only if the same is expressly waived (i) by
email from the Purchaser to the Seller and Escrow Agent; or (ii) in a writing signed by the
Purchaser and delivered to the Seller and Escrow Agent. If the Conditions Precedent for the
Benefit of the Purchaser are not satisfied by the deadlines set forth in this Section 6 or expressly
waived, the Purchaser (provided the Purchaser is not in default hereunder) may provide emailed
or written notice of the Purchaser's conditional termination of this Agreement to the Seller and
Escrow Agent. After receipt of such notice of conditional termination, the Seller shall have ten
(10) Business Days to cure any non -satisfaction of a condition or other default specified in the
notice of conditional termination. If such matter remains unsatisfied or the default remains
uncured after the expiration of such ten (10) Business Day period, then this Agreement shall
terminate at the close of business on such tenth (10th) Business Day. In the event of termination
of this Agreement (and by operation of law the Escrow) pursuant to this Section 6, then: (x)
except to subparagraph (f) below, the same shall be a default by the Seller (y) Escrow Agent
shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser,
including without limitation, the Deposit; and (z) Escrow Agent shall return to the Seller all
funds or other things deposited in Escrow by the Seller. Purchaser is not waiving any default by
the Seller and nothing contained in this Section 6, including, without limitation, the immediately
foregoing sentence shall be a waiver of any right of Purchaser to recover damages from the
Seller for failure of any Conditions Precedent for the Benefit of the Purchaser. Provided,
however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the
Seller and one-half (1/2) by the Purchaser.
(a) The deposit into Escrow by the Seller of the Grant Deed, duly executed and
acknowledged, conveying fee simple title to the Property to the Purchaser at least one (1)
Business Day prior to Closing.
(b) The deposit by the Seller into Escrow of a duly executed affidavit that it is not a
foreign person and is a "United States Person" as such term is defined in Section 7761(a)(30) of
the Internal Revenue Code of 1986, as amended, at least one (1) Business Days prior to Closing.
The affidavit shall he in the form prescribed by federal regulations, if any.
(c) The deposit by the Seller into Escrow of a duly executed California Form 593(c)
or other evidence that withholding of any portion of the Purchase Price is not required by the
Revenue and Taxation Code of California, at least one (1) Business Day prior to Closing.
(d) The deposit by the Seller into Escrow of all additional documents and instruments
as are reasonably required by the Purchaser and/or Escrow Agent to complete the Closing, at
least one (1) Business Day prior to Closing.
(e) The Escrow Agent is prepared and obligated to issue the Title Policy in
Purchaser's favor upon the recordation of the Grant Deed and there are no exceptions to the Title
Policy, except for Permitted Exceptions.
(f) Seller not being in default of any of its representations or warranties under this
Agreement, or any other material terms or conditions related to Seller.
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(g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement
affecting the Property, except for the Encroachment Permit and Agreement, as described in
Recital D, above.
(h) As of the Closing Date there is not pending, or threatened to be pending, any
action or proceeding by any person or before any government authority, the outcome of which
could prohibit the use of the Property as intended by the Purchaser.
7. Representations and Warranties; Waivers and Releases.When making the representations
and warranties set forth in this Section 7, each party making a representation and/or warranty
represents that the same are true, correct and complete as of the date hereof and shall be and are
true, correct and complete as of the Closing Date. The representations and warranties shall
survive the Closing.
(a) Representations and Warranties Regarding Authority. The Seller and the
Purchaser each hereby represents and warrants to the other that this Agreement and all
documents or instruments executed by them which are to be delivered at or prior to the Closing
arc, or on the Closing Date will be, duly authorized, executed and delivered by the Seller or the
Purchaser, as applicable.
(b) Representations and Warranties Regarding Enforceability of Agreement. The
Seller and the Purchaser each hereby represents and warrants to the other that this Agreement
and all documents required hereby to be executed by them shall be valid, legally binding
obligations of, and enforceable against, the Seller or the Purchaser, as applicable, in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and general principles of equity
(whether enforcement is sought in equity or at law).
(c) Seller Representations and Warranties Pertaining to Legal Matters. The Seller
hereby represents and warrants to the Purchaser that:
(1) As of the Effective Date and the Closing Date, the Seller is the sole owner
of the fee title interest to the Property.
(2) There is no pending or threatened proceeding in eminent domain or
otherwise, which would affect the Property, or any portions thereof, nor any facts which
might give rise to such action or proceeding.
(d) Seller Representations and Warranties Pertaining to Options. The Seller hereby
represents and warrants to the Purchaser that no person has any option or right of first refusal to
purchase the Property or any parts thereof.
(e) Material Adverse Changes. If Seller receives any notice or knowledge of
anything materially adversely affecting Seller's representations or warranties after the date of
this Agreement, then Seller shall immediately notify Purchaser in writing of such fact or
circumstance. If Purchaser receives written notice from Seller pursuant to the immediately
preceding sentence, and Seller in such notice does not agree to cure the same at or prior to
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Closing to Purchaser's reasonable satisfaction, then, Purchaser shall have the right to bring an
action against Seller on the breach of such representation or warranty.
(f) Seller Representation and Warranty Pertaining to Tenants. The Seller hereby
represents and warrants to the Purchaser that no person has any lease or other right to occupy the
Property or any parts thereof, except for the Encroachment Permit and Agreement as described
in Recital D, above.
(g) Seller Representation and Warranty Regarding Operation of the Property. The
Seller hereby represents and warrants to the Purchaser that there are no oral or written
agreements or understandings concerning the Property by which the Purchaser would be bound
following the Closing.
(h) AS IS CONDITION. PURCHASER HEREBY ACKNOWLEDGES,
REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL
INDUCEMENT TO SELLER TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN
CONSIDERATION OF THE PERFORMANCE BY SELLER OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENTTHAT, EXCEPT AS SPECIFICALLY
PROVIDED IN TIIIS AGREEMENT AND SUBJECT TO SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF THIS
AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE
ON AN "AS IS, WHERE IS" BASIS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CIIARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTIIERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE
OF HAZARDOUS MATERIALS OR MOLD UPON THE PROPERTY OR ANY PORTION
THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND
WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER
AND FAULTING; (3) WITETHER OR NOT AND TO THE EXTENT TO WHICH THE
PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE
OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES,
OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING
PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION,
DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PIIYSICAL OR
FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE
IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) —
12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS
MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY; (9) THE
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SQUARE FOOTAGE OF THE PROPERTY OR THE IMPROVEMENTS THEREON; (10)
IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION,
THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL
PROPERTY, IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER
OR WATER RIGHTS; (13) THE DEVELOPMENT POTENTIAL FOR THE PROPERTY; (14)
THE ABILITY OF PURCHASER TO REZONE TIIE PROPERTY OR CHANGE THE USE
OF THE PROPERTY; (15) THE ABILITY OF PURCHASER TO ACQUIRE ADJACENT
PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY
UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF
ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY
WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE
BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE
IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE
NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR
USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL
PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS ORLAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER
AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MATTER
CONCERNING THE PROPERTY. NOTWITHSTANDING TIIE FOREGOING OR
ANYTIIING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, SELLER IS NOT
RELEASED FROM ANY LIABILITY TO PURCHASER FOR FRAUD ORBREACH OF
ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS
AGREEMENT. Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation, this Section 7(h), any right waived by Purchaser and any release by
Purchaser, shall only release or waive the Purchaser's right to enforce any judgment (including
without limitation, damages, attorneys' fees, costs, expenses or any other compensation of any
type whatsoever) personally against only the Seller and Seller's successors, assigns, officers,
directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and
agents (collectively, the "Seller Parties") or any of them. Purchaser is not waiving any right to
bring any action against any of the "Non -Released Parties" (defined below) or waiving recovery
against or otherwise releasing or agreeing to forego Purchaser's rights with respect to any
insurance policy, or any other person (other than the right to enforce a judgment personally
against any of the Seller Parties), including without limitation persons obligated to the Seller
Parties, by right of subrogation or otherwise, prior owners or occupants of the Property, the
tenants, persons performing work at the Property and/or any insurance policies held by any or all
such persons (collectively, the "Non -Released Parties").
PURCHASER ACKNOWLEDGES THAT PURCHASER SHALL HAVE
COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE
ACQUISITION OF THE PROPERTY HEREUNDER AND WILL ACQUIRE THE SAME
SOLELY ON THE BASIS OF SUCH EXAMINATIONS AND THE TITLE INSURANCE
PROTECTION FOR THE PROPERTY AFFORDED BY THE TITLE POLICY, EXCEPT AS
11
SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
TIIIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT THE
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION
OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR ANY NEGLIGENT
MISREPRESENTATION OR FAILURE TO INVESTIGATE THE PROPERTY NOR SIIALL
SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORT'S, OR
OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION
THEREOF, FURNISHED BY SELLER, OR ANY REAL ESTATE BROKER, AGENT,
REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING ON
SELLER'S BEHALF EXCEPT FOR REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED IN SECTION 7 OF THIS AGREEMENT. IT IS
ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT RELEASED FROM ANY LIABILITY TO PURCHASER
FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY
SET FORTH IN THIS AGREEMENT.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER IS
FULLY AWARE OF THE AGE OF THE PROPERTY, THAT OVER TIME VARIOUS
EVENTS MAY HAVE OCCURRED ON THE PROPERTY WHICH EVENTS MAY BE
TYPICAL AND (OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF
SIMILAR AGE TO THE PROPERTY AND SIMILARLY LOCATED IN THE CITY OF
NATIONAL CITY AND (OR) THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT
SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE,
SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS,
PERMITS, APPROVALS, LICENSES AND (OR) ORDERS OF GOVERNMENTAL
AGENCIES WITH JURISDICTION OVER THE PROPERTY.
THE CLOSING OF THE PURCHASE OF THE PROPERTY BY PURCHASER
HEREUNDER SHALL BE CONCLUSIVE EVIDENCE THAT: (A) PURCHASER HAS
FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND
COMPLETELY INSPECTED) THE PROPERTY; AND (B) PURCHASER ACCEPTS THE
PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE
FOR PURCHASER'S PURPOSES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR
RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN
SECTION 7 OF THIS AGREEMENT, PURCHASER SHALL PERFORM AND RELY
12
SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE
PROPERTY, AND THE PROPERTY'S FTI'NESS THEREFOR. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT SELLER'S COOPERATION WITH PURCHASER
WHETHER BY AUTI-IORIZING THE ENCROACTIMENT PERMIT AND AGREEMENT,
PROVIDING DOCUMENTS RELATING TO THE PROPERTY, OR PERMITTING
INSPECTION OF THE PROPERTY, SHALL NOT BE CONSTRUED AS ANY WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO
THE PROPERTY, OR WITII RESPECT TO THE ACCURACY, COMPLETENESS, OR
RELEVANCE OF THE DOCUMENTS PROVIDED TO PURCHASER BY SELLER IN
RELATION TO THE PROPERTY, PROVIDED THAT THE FOREGOING SHALL NOT BE
A LIMITATION OR MODIFICATION OF THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED FOR IN SECTION 7 OF THIS AGREEMENT.
SELLER'S INITIALS PURCHASER'S INITIALS
(i) Indemnity and Release.
(1) Indemnity. For the purposes of this Section 7(i), the term "Claims" shall
mean any and all claims, obligations, liabilities, causes of action, suits, debts, liens, damages,
judgments, losses, demands, orders, penalties, settlements, costs and expenses (including,
without limitation, attorneys' fees and costs and any and all costs and expenses related to,
whether directly or indirectly, any and all clean-up, remediation, investigations, monitoring,
abatement, mitigation measures, fines or removal with respect to Hazardous Materials) of any
kind or nature whatsoever. The definition of "Claims" shall include, without limitation, Claims
undcr contract law or tort law. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Section 7(i), Seller would not have entered into the Agreement.
Purchaser, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"),
shall indemnify, defend, protect and hold Seller and Seller's successors, assigns, partners,
affiliates and members and all their respective officers, directors, shareholders, participants,
partners, affiliates, employees, representatives, invitees and agents (collectively, "Seller Parties")
harmless from and against any and all Claims resulting from, related to, or based upon, whether
directly or indirectly: (i) the breach by Purchaser of any representation, warranty, covenant or
obligation contained in the Agreement, or in any other agreement, document, exhibit or
instrument related hereto or referenced herein; (ii) any Claim or Claims, if the basis of such
Claim or Claims arose on or after the Closing, except as noted in subparagraph (iv) below, and if
the basis of such Claim or Claims arose from, is based upon, relates to or pertains to, whether
directly or indirectly, the operation, management and use of the Property; (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from, is based upon, relates to or
pertains to, whether directly or indirectly, any act or omission of Purchaser or any of its
employees, agents or representatives; and (iv) (A) any Claim or Claims that relate to the
condition of the Property on or after the Close of Escrow, including any judgment, order or
settlement under or otherwise pursuant to a lawsuit, and (B) any Claim or Claims that relate to
defects in the Property (including, without limitation, patent and latent construction defects),
regardless of whether said defects or the cause of the same arose either before or after the Close
of Escrow, including any judgment, order or settlement under or otherwise pursuant to the
lawsuit. Any defense of any or all of the Seller Parties referenced in this Section 7(i)(1), shall be
13
at the Purchaser's sole cost and expense and by counsel selected by the Purchaser, subject to the
reasonable approval of the indemnified person, which counsel may, without limiting the rights of
any of the Seller Parties pursuant to the next succeeding sentence of this Section 7(i)(1), also
represent the Purchaser in such investigation, action or proceeding. If any of the Seller Parties
that is being indemnified determines reasonably and in good faith that its defense by the
Purchaser is reasonably likely to cause a conflict of interest or is being conducted in a manner
which is prejudicial to such persons interests, such indemnified person may elect to conduct its
own defense through counsel of its own choosing, subject to the reasonable approval of the
Purchaser, and at the expense of the Purchaser.
(2) Release and &1542 Waiver. Notwithstanding the following or anything to
the contrary set forth in this Agreement, the Seller is not released from any liability to the
Purchaser for fraud or breach of any covenant or warranty set forth in this Agreement. Subject to
the immediately preceding sentence and the Purchaser's right to rely on the Seller's express
representations and warranties set forth in Section 7 hereof, Purchaser for itself and on behalf of
each of its successors and/or assigns (collectively, the "Releasors") by this general release of
known and unknown claims (this "Release") hereby irrevocably and unconditionally release and
forever discharge Seller and each of the Seller Parties (collectively, the "Releasees") or any of
them, from and against any and all Claims of any kind or nature whatsoever, WHETHER
KNOWN OR UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own, hold, or claim to have had, owned, or
held, against any of the Releasees arising from, based upon or related to, whether directly or
indirectly any facts, matters, circumstances, conditions or defects (whether patent or latent) of all
or any kinds, related to, arising from, or based upon, whether directly or indirectly, the Property,
including without limitation, (i) the physical condition, quality and state of repair of the Property
conveyed, (ii) any latent or patent defect affecting the Property conveyed, and (iii) the presence
of Hazardous Materials in, on, about or under the Property or which have migrated from adjacent
lands to the Property or from the Property to adjacent lands.
Except for Claims for Seller's fraud or the breach of any representations and warranties
of the Seller expressly provided for in Scction 7 of this Agreement, Releasors hereby further
agree as follows:
(i) Releasors acknowledge that there is a risk that subsequent to the
execution of this Agreement, Releasors may discover, incur, or suffer from Claims which were
unknown or unanticipated at the time this Release is executed, including, without limitation,
unknown or unanticipated Claims which, if known by Releasors on the date this Release is being
executed, may have materially affected Releasors' decision to execute this Agreement. Releasors
acknowledge that Releasors are assuming the risk of such unknown and unanticipated Claims
and agree that this Release applies thereto. Releasors expressly waive the benefits of Section
1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
14
(ii) Releasors represent and warrant that Releasors have been
represented by independent counsel of Releasors' own choosing in connection with the
preparation and review of the Release set forth herein, that Releasors have specifically discussed
with such counsel the meaning and effect of this Release and that Releasors have carefully read
and understand the scope and effect of each provision contained herein. Releasors further
represent and warrant that Releasors do not rely and have not relied upon any representation or
statement made by any of the Releasees or any of their representatives, agents, employees,
attorneys or officers with regard to the subject matter, basis or effect of this Release.
(iii) Releasors represent and warrant to Releasees that Releasors have
not and shall not assign or transfer or purport to assign or transfer any Claim or Claims or any
portion thereof or any interest therein, and shall indemnify, defend, protect and hold the
Releasees harmless from and against any Claim or Claims based on or arising out of, whether
directly or indirectly, any such assignment or transfer, or purported assignment or transfer.
SELLER'S INITIALS PURCHASER' INITIALS
It is specifically intended that each of the Seller Parties shall be third party beneficiaries
of this Section 7(i).
(3)
Survival. The provisions of this Section 7(i) shall survive the Closing and,
as applicable, the termination of this Agreement.
(j) Waiver of Subrogation; Survival. Purchaser hereby waives any right of
subrogation as to Seller or the Seller Parties. Each and every provision of this Section 7 shall,
except as may be expressly limited in this Section 7, survive the Closing and, as applicable, the
termination of this Agreement, and, but for Purchaser's agreement to each and every provision of
this Section 7, Seller would not have executed this Agreement.
8. Condemnation of the Property.
(a) If between the Effective Date and the Closing Date, any condemnation or eminent
domain proceeding is commenced that will result in the taking of any part of the Property,
Purchaser may, at Purchaser's election, either:
(1) Terminate this Agreement by giving written or emailed notice to the Seller
and the Escrow Agent in which event all remaining funds or other things deposited in Escrow by
Purchaser, including without limitation, the Deposit, shall be returned to the Purchaser
immediately from Escrow, together with any interest earned thereon and all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser; or
(2) Proceed with the Closing with no reduction in the Purchase Price, in
which event the Seller shall assign to the Purchaser all of the Seller's rights, titles and interests to
any award made for the condemnation or eminent domain action.
15
(b) Notice. If the Seller obtains notice of the commencement of or the threatened
commencement of eminent domain or condemnation proceedings with respect to all of any
portion of the Property, the Seller shall notify the Purchaser in writing.
9. Broker's Commission. The Purchaser and Seller each hereby represents and warrants to
the other that it has not engaged the services of any real estate agent or broker with respect to the
transaction that is the subject of this Agreement.The Purchaser and the Seller each agree that, to
the extent any real estate commission, brokerage commission or finder's fee shall be earned or
claimed in conncction with this Agreement or the Closing, the payment of such fee or
commission, and the defense of any action in connection therewith, shall be the sole and
exclusive obligation of the party who requested (or is alleged to have requested) the services of
the broker or finder. In the event that any claim, demand or cause of action for any such
commission or finder's fee is asserted against the party to this Agreement who did not request
such services (or is not alleged to have requested such services), the party through whom the
broker or finder is making the claim shall indemnify, defend (with an attorney of the
indemnitee's choice), protect and hold harmless the other from and against any and all such
claims, demands and causes of action and expenses related thereto, including, without limitation,
attorneys' fees and costs.The provisions of this Section 9 shall survive the Closing or termination
of this Agreement.
10. Assignment. The Purchaser shall not assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the Seller, which consent may be
withheld or granted in Seller's sole and absolute discretion; provided, however, the Purchaser
may assign this Agreement to an entity in which the Purchaser has a controlling or majority
interest without the prior written consent of the Seller provided Purchaser and such assignee
execute an assignment agreement in form and substance reasonably acceptable to Seller.
11. Notices. All notices under this Agreement shall be in writing and sent (a) by certified or
registered mail, return receipt requested, in which case notice shall be deemed delivered three (3)
Business Days after deposit, postage prepaid in the United States Mail, (b) overnight by a
nationally recognized overnight courier such as UPS Overnight, or FedEx, in which case notice
shall be deemed delivered one (1) Business Day after deposit with that courier, (c) by personal
delivery, in which case notice shall be deemed delivered upon the actual date of delivery, or (d)
by email, in which case notice shall be deemed delivered upon the actual date of delivery. All
notices shall be delivered to the following addresses:
If to Purchaser:
Alturas Imperial LLC
Attn: Craig Metz, Manager
Imperial Group
12675 Danielson Court, Suite 414
Poway, CA 92064
Tel: (949) 706-7575
Fax: (858) 456-6577
Email: craigmetz@pacificmidwest.com
16
If to Seller:
City of National City
Attn: Martin Reeder, Principal Planner
1243 National City Boulevard
National City, CA 91950
Tel: (619) 336-4313
Fax: (619) 336-4321
Email: mreeder@nationalcityca.gov
The addresses above may be changed by written notice to the other party; provided
however, that no notice of a change of address shall be effective until actual receipt of the notice.
12. Risk of Loss. The risk of loss or damage to the Property until the close of Escrow will
be borne by Purchaser, due to the Encroachment Permit and Agreement. If prior to the close of
Escrow there is damage to or destruction of the Property, Purchaser shall nevertheless close
Escrow with the Property in such damaged condition, and the Purchase Price shall not be
reduced. Seller shall not be obligated to repair or restore the Property.
13. Prorations. Real property taxes and assessments and utility costs, and other expenses of
operating the Property (provided, however, no proration shall be made with regard to any capital
improvements) shall be prorated as of the close of Escrow. Seller shall pay all documentary
transfer taxes. Seller shall pay all real property taxes and assessments applicable to the period
prior to the close of Escrow, and if any such taxes are unpaid after the close of Escrow, then
Seller shall pay them promptly and in any event within ten (10) days after Purchaser's request
(which shall include a copy of the relevant tax bill).
14. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in
accordance with California law, without regard to any choice of law principles.
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(c) Captions. The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this Agreement or any of
the provisions of this Agreement.
(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors, heirs and permitted assigns.
(e) Modifications; Waiver. No waiver, modification, amendment, discharge or
change of this Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge or change is sought.
(f) Entire Agreement. This Agreement contains the entire agreement between the
parties relating to Purchaser's acquisition of the Property from the Seller and all prior or
17
contemporaneous agreements, understandings, representations or statements, oral or written, are
superseded.
(g) Partial Invalidity. Any provision of this Agreement which is unenforceable,
invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of
this Agreement shall have no effect, but all the remaining provisions of this Agreement shall
remain in full effect.
(h) Survival. Provisions of this Section 14 shall survive the Closing or the
termination of this Agreement.
(i) No Third -Party Rights. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties to this Agreement and their respective
successors and assigns, any rights or remedies.
(j) Time of Essence. Time is of the essence in this Agreement.
(k) Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be
awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5
and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be
subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch.
(1) Relationship. Nothing contained in this Agreement shall be deemed or construed
by the parties or by any third person to create a relationship of principal and agent or partnership
or a joint venture between the Purchaser and the Seller or between any of them and any third
party.
(m) Recording. Neither this Agreement nor a memorandum hereof shall be recorded.
(n) Seller Approval. Where this Agreement refers to an action or approval of the
Seller, it shall mean the approval of the of the Seller, or designee, unless otherwise provided.
(o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are
hereby incorporated in this Agreement by this reference, regardless of whether or not the exhibits
are actually attached to this Agreement. The Recitals to this Agreement are hereby incorporated
in this Agreement by this reference.
(p) Independent Counsel. Seller and Purchaser each acknowledge that: (a) they have
been given the opportunity to be represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such counsel, if such
counsel was retained; and (c) this Agreement is the result of negotiations between the parties
hereto and the advice and assistance of their respective counsel, if such counsel was retained.
The fact that this Agreement was prepared or negotiated by Purchaser's or Seller's counsel as a
matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this
18
Agreement shall not be construed against either party due to the fact that Purchaser's or Seller's
counsel prepared or negotiated this Agreement in its final form.
(q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations
set forth in this Agreement, including without limitation, the deadline for Closing and the
deadline for making the Deposit, shall all be automatically extended by one (1) Business Day for
each Business Day that the Seller fails to timely provide any notice, report, materials, studies,
documentation or other information required by this Agreement.
(r) Capacity and Authority. All individuals signing this Agreement for a party which
is a corporation, limited liability company, partnership or other legal entity, or signing under a
power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent
and warrant that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
PURCHASER:
Alturas Imperial, LLC
By:
Print Name: 6fe-fv1
Its: Own e.(
SELLER:
City of National City
By:
. Print Name:
By:
Print Name:
Its:
Ron Morrison
Its: Mayor
Ap oved as to Form:
B
City At
itua Silva
19
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE WESTERLY 15.00 FEET OF THE EASTERLY 25.00 FEET OF "G" AVENUE, SAID
"G" AVENUE BEING FORMERLY AN UNNAMED STREET (80.00 FEET WIDE) WITHIN
FLORA M. KIMBALL' S SUBDIVISION OF A PORTION OF QUARTER SECTION 152 OF
RANCHO DE LA NACION, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 44, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY SEPTEMBER 30,
1886.
EXCEPTING THEREFROM ANY PORTION LYING NORTHERLY OF THE SOUTHERLY
RIGHT-OF-WAY LINE OF 24TH STREET (80.00 FEET WIDE).
ALSO EXCEPTING THEREFROM ANY PORTION LYING SOUTHERLY OF A LINE
DRAWN PARALLEL WITH AND 194.00 FEET SOUTHERLY OF SAID SOUTHERLY
RIGHT-OF-WAY LINE OF 245TH STREET.
ALL AS CLOSED AND VACATED TO PUBLIC USE BY RESOLUTION 2012-246 OF THE
CITY OF NATIONAL CITY RECORDED DECEMBER 27, 2012 AS FILE NO. 2012-
0816789, OFFICIAL RECORDS.
5072/3692.001
20
RESOLUTION NO. 2013 — 127
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE
AGREEMENT AND AUTHORIZE CITY STAFF TO ENTER A 30-DAY
ESCROW BY AND BETWEEN THE CITY OF NATIONAL CITY AND
ALTURAS IMPERIAL, LLC, FOR THE SALE OF A RECENTLY VACATED
PORTION OF "G" AVENUE, SOUTH OF EAST 24TH STREET IN NATIONAL CITY
WHEREAS, on December 18, 2012, the City Council adopted Resolution No.
2012-246, which ordered the vacation of the northerly 194 feet of the easterly 15 feet of' "G"
Avenue (the "Property") in association with the construction of a proposed Social Security
Administration Office; and
WHEREAS, the vacated area would allow for the expansion of the proposed
parking lot serving the proposed Social Security Administration Office so that it can accommodate
emergency vehicle access and increased parking for customers; and
WHEREAS, in order to construct improvements upon this property, the developer
for the new Social Security Office desires to purchase the City -owned Property so that
improvements can be constructed upon the Property; and
WHEREAS, the Property does not meet minimum design standards for a buildable
lot, as it is a separate parcel immediately surrounded by parking and road uses, it is not identified
in the General Plan or other plans as being needed for any City development or improvement
projects, and would be of greater benefit to an adjacent property now that it is no longer a right-of-
way; and
WHEREAS, on February 19, 2013, the City Council adopted Resolution No.
2013-24, declaring that the vacated street right-of-way described as the northerly 194 feet of the
easterly 15 feet of "G" Avenue was determined to no longer be necessary for City use, and that
said remnant parcel was declared to be surplus in accordance with City Council Policy 901.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
National City that the vacated street right-of-way described as the northerly 194 feet of the
easterly 15 feet of "G" Avenue has been appraised and its title insured in accordance with City
Council Policy 901, and City staff is directed to enter into a 30-day escrow to sell said remnant
parcel consistent with the terms of the Purchase and Sale Agreement.
BE IT FURTHER RESOLVED that the City Council of the City of National City
hereby authorizes the Mayor to execute the Purchase and Sale Agreement and authorizes the
City Manager or her designee to execute all documents as required by the Purchase and Sale
Agreement and escrow instructions.
PASSED and ADOPTED this 20th day of August, a 13.
ATTEST:
Michael R. Dafla, City Clerk
on Morrison, Mayor
PROVED AS TO FORM:
a : is itua Silva
City Atto.
Passed and adopted by the Council of the City of National City, California, on August
20, 2013 by the following vote, to -wit:
Ayes: Councilmembers Cano, Morrison, Natividad, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Mayor of the City of National City, California
i (CA,
City CI rk of the City of ational City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2013-127 of the City of National City, California, passed and
adopted by the Council of said City on August 20, 2013.
City Clerk of the City of National City, California
By:
Deputy
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO.17
ITEM TITLE:
Resolution of the City Council of the City of National City authorizing the Mayor (or City Manager) to execute a
Purchase and Sale Agreement by and between the City of National City and Alturas Imperial LLC for the sale of
a recently vacated portion of 'G' Avenue, south of East 24th Street in National City.
/VVL
PREPARED BY: Martin Reeder, AICP
PHONE: 619-336-4313
DEPARTMENT: Planning.
APPROVED BYr—�"jw
EXPLANATION: On December 18, 2012, the Council ordered the vacation of the northerly 194 feet of the
easterly 15 feet of G' Avenue in association with the construction of a proposed Social Security Administration office.
The vacated area would allow for the expansion of the proposed parking lot so that it can accommodate emergency
access vehicles and provide increased parking for customers. The fee ownership of the land underneath the former
street right-of-way belongs to the City. On February 19, 2013, the City Council declared the vacated portion of G
Avenue as surplus property, the first step in allowing for the sale of the property. The property is not identified in the
General Plan or other Specific Plans as being needed for any City development or improvement projects and would
be of greater benefit to an adjacent property now that it is no longer needed as a right-of-way. Therefore, staff
recommends that the property be sold in order to facilitate a project which will be a benefit to the community.
Since declaration of the property as surplus, the developers of the adjacent property have ordered an appraisal of the
property and title insurance per City Council Policy 901 (attached). The property was appraised, the value of which
was established at $18,000. Council Policy 901 requires that the City pay for the title insurance and half of the
escrow fee, which comes to $670 ($420 for the title insurance and half of the $500 escrow fee). These fees would be
deducted from the appraised sale price.
FINANCIAL STATEMENT:
ACCOUNT NO.
ENVIRONMENTAL REVIEW:
N/A.
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
Direct staff to enter into a 30-day escrow to sell the surplus portion of `G' Avenue for the appraised value of
$18,000, Tess title insurance fees and half of the escrow fee.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. City Council Policy 901 4. Purchase and Sale Agreement
2. Legal Description and Site Plan 5. Resolution
3 Appraisal of Real Property in Summary Report
CITY COUNCIL POLICY
TITLE:
SALE OF SURPLUS REAL PROPERTY
POLICY
NUMBE,R:'90i
ADOPTED: JUNE 19, 1984 AMENDED OR -August 14, 1990
REVISED:
Pur,ose
TO establish 1 i oy .sue prrx b Ire
use of the proceeds from that sale.
Policy
sale of
and
The following steps are to be follawad to sale City -awned piers of
property:
1. Obtain other City Departments' comments for the sale of the property.
2. Secure preliminary title reports for the property.
3. Prepare plats and legalrriptions for the property.
4. Request the City Council (Real Estate Committee) to dc.z-1Are the
property surplus and direct the staff to sell it.
5. If applicable, send a written offer to sell or lease the property to
the other government agencies (Government Cade Section 54222).
6. Order a letter of appraisal far the property from a licensed
appraiser.
7. Order CLTA title insurance policy for the property to be sold..
8. Prepare the advertising and bid packages for the marketable
properties, and request t the City Ccuncil's approval to proceed with
the advertisement of the marketable properties.
9. Advertise the sale of marketable properties.
10. Prepare a final report to the. City Council providing information on
the results of the bid waning or themwtiAtinne.
11. Obtain approval from the City Council to enter into an escrow to sell
the property Unless otherwise aprri f ied in the offer, or in the laid
package, the City will open a normal escrow where the City will pay
for the cost of the title insurance, and one-half of the escrow fee.
The prom 9 from the sale will be spent oa beautification or improvement
projects throughout the City.
Related Po1icp+ References
None
City of National City
1
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE WESTERLY 15.00 FEET OF THE EASTERLY 25.00 FEET OF "G" AVENUE, SAID
"G" AVENUE BEING FORMERLY AN UNNAMED STREET (80.00 FEET WIDE) WITHIN
FLORA M. KIMBALL'S SUBDIVISION OF A PORTION OF QUARTER SECTION 152 OF
RANCHO DE LA NACION, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 44, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY SEPTEMBER 30,
1886.
EXCEPTING THEREFROM ANY PORTION LYING NORTHERLY OF THE SOUTHERLY
RIGHT-OF-WAY LINE OF 24TH STREET (80.00 FEET WIDE).
ALSO EXCEPTING THEREFROM ANY PORTION LYING SOUTHERLY OF A LINE
DRAWN PARALLEL WITH AND 194.00 FEET SOUTHERLY OF SAID SOUTHERLY
RIGHT-OF-WAY LINE OF 245TH STREET.
ALL AS CLOSED AND VACATED TO PUBLIC USE BY RESOLUTION 2012-246 OF THE
CITY OF NATIONAL CITY RECORDED DECEMBER 27, 2012 AS FILE NO. 2012-
0816789, OFFICIAL RECORDS.
5072/3692.001
9
2
PLANS PREPARED BY:
SPEAR 8a ASSOCIATES, INC.
CIVIL ENGINEERING & LAND SURVEYING
475 PRODUCTION STREET, SAN MARCOS, CA 92078
PHONE (760) 736-2040 FAX (760) 736-4866
WWW.SPEARINO.NET
JOB N0. 12-217
3
L25'
10' VACATED PER CITY RESOLUTION
I NO. 505, REC. 4/25/1921,
D.B. 847, P. 474
CUSHMAN&
4747 EXECUTIVE DRIVE, 9TH FLOOR
SAN DIEGO, CA 92121
April 24, 2013
Mr. Craig Metz
Imperial Group
12675 Danielson Court, Suite 414
Poway, CA 92064
Re: Appraisal of Real Property
In a Summary Report
Vacant Land
G Avenue at 24th Street
National City, National City County, CA 91950
C&W File ID: 13-38503-900143
Dear Mr. Metz:
In fulfillment of our agreement as outlined in the Letter of Engagement, we are pleased to transmit our appraisal
of the above property in a summary report dated April 24, 2013. The effective date of value is April 17, 2013.
This appraisal report has been prepared for the Imperial Group. This is a summary appraisal, which is intended
to comply with the reporting requirements set forth under Standards Rule 2-2(b) of the Uniform Standards of
Professional Appraisal Practice. As such, it presents limited discussions of the data, reasoning, or analyses used
in the appraisal process to develop the appraisers' opinion of value. Additional supporting documentation
concerning the data, reasoning, and analyses is retained in our files. The depth of discussion contained in this
report is specific to the needs of the client and for the intended use stated below.
MARKET VALUE AS IS
Based on the agreed to Scope of Work, and as outlined in the report, we have developed an opinion that the
Market Value of the Fee Simple estate of the subject property, subject to the assumptions and limiting conditions,
certifications, extraordinary and hypothetical conditions, if any, and definitions, on April 17, 2013, was:
EIGHTEEN THOUSAND DOLLARS
$18,000
The value opinion in this report is qualified by certain assumptions, limiting conditions, certifications, and
definitions. We particularly call your attention to the extraordinary assumptions listed below.
EXTRAORDINARY ASSUMPTIONS
For a definition of Extraordinary Assumptions please see the Glossary of Terms & Definitions.
This appraisal does not employ any extraordinary assumptions.
4
MR. CRAIG METZ
IMPERIAL GROUP
APRIL 24, 2013
PAGE 2
CUSHMAN & WAKEFIELD WESTERN, INC.
HYPOTHETICAL CONDITIONS
For a definition of Hypothetical Conditions please see the Glossary of Terms & Definitions.
This appraisal does not employ any Hypothetical Conditions.
This letter is invalid as an opinion of value if detached from the report, which contains the text, exhibits, and
Addenda.
Respectfully submitted,
CUSHMAN & WAKEFIELD WESTERN, INC.
Kevin M. Thene, MAI
Managing Director
California Certified General Appraiser
License No. AG003085
Expiration Date: January 25, 2014
kevin.thene@cushwake.com
858.334.4015 Office Direct
858.452.3206 Fax
5
PURCHASE AND SALE AGREEMENT
(G Avenue, South of 24`h Street, National City, California)
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20`h
day of August, 2013 ("Effective Date") by and between City of National City ("Seller") and
Alturas Imperial LLC, a California Limited Liability Company ("Purchaser").
RECITALS
A. The Seller owns the fee interest in that certain parcel of real property described in
Exhibit A, attached to this Agreement, and defined below, (the "Property.") The Property is in
the City of National City, California.
B. On December 18, 2012, pursuant to Resolution No. 2012-246, the City Council of
the City of National City authorized the vacation of the Property.
C. On February 19, 2013, pursuant to Resolution No. 2013-24, the City Council
declared the Property as surplus property and directed the City Engineer to dispose of the
Property in accordance with City Council Policy.
D. On July 2, 2013, pursuant to Resolution No. 2013-100, the City Council
authorized the Mayor to execute a temporary Encroachment Permit and Agreement between
Seller and Purchaser so that the Purchaser could construct a portion of a parking lot on the
Property. The Encroachment Permit expires on November 2, 2013, or upon purchase of the
Property by the Purchaser from the Seller.
E. Provided the various conditions to Closing (as defined below) set forth in this
Agreement are satisfied, the Seller agrees to sell the Property (as defined below) to the Purchaser
and the Purchaser agrees to purchase the Property from the Seller as set forth in this Agreement.
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Purchase and Sale. In consideration of the mutual covenants set forth in this Agreement,
the Purchaser will acquire all of the Property, on the terms and conditions set forth herein,
provided the various conditions to Closing set forth in this Agreement are satisfied.
(a) Sale of the Property. The Seller agrees to sell the Property to the Purchaser, and
the Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth
herein. At Closing, the Seller shall convey the fee interest in the Property to the Purchaser by
recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title Policy
(as defined below) to the Purchaser at Closing.
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(b) Possession of the Property. As stated in Recital D above, the Purchaser has an
Encroachment Permit and Agreement for the Property. The Seller shall deliver possession of the
Property to Purchaser at Closing, subject only to the Title Exceptions, all as defined below.
2. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
"Agreement" means this Purchase and Sale Agreement between the Seller and the
Purchaser.
"Applicable Environmental Law" means all laws applicable to the presence of any
Hazardous Materials (as defined below) on or within the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean
Water Act (33 U.S.C. §2601, et seq.); the Safe Drinking Water Act (14 U.S.C. §300f, et seq.);
the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); the Toxic Substances
Control Act (15 U.S.C. §2601, et seq.); the Federal Water Pollution Control Act (33 U.S.C.
§ 1300, et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136, et seq.);
the Atomic Energy Act (42 U.S.C. §2011, et seq.); the Nuclear Waste Policy Act (42 U.S.C.
§10101, et seq.); the Clean Air Act (42 U.S.C. §7401, et seq.); the California Hazardous Waste
Control Act (California Health and Safety Code §25100, et seq.); the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code §25300, et seq.); the Safe
Drinking Water and Toxic Enforcement Act ("Proposition 65") (California Health and Safety
Code §25249.5, et seq.); and the Porter -Cologne Water Quality Control Act (California Water
Code §13000, et seq.); and any similar federal, state or local laws, all regulations and
publications implementing or promulgated pursuant to the foregoing, as any of the foregoing
may be amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or any other day on which
Purchaser or Escrow Agent is not open for business. In the event any date, deadline or due date
set forth in this Agreement falls on a day that is not a Business Day, then such deadline or due
date shall automatically be extended to the next Business Day.
"Close" or "Closing" means the close of Escrow as provided in this Agreement.
"Closing Date" means the date on which the Closing occurs, which date shall be
, 2013.
"Conditions Precedent for the Benefit of the Seller" shall have the meaning set forth in
Section 5 of this Agreement.
"Conditions Precedent for the Benefit of the Purchaser" shall have the meaning set forth
in Section 6 of this Agreement.
"Deposit" shall have the meaning set forth in Section 3(b)(1) of this Agreement.
"Effective Date" is defined above.
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7
"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Tom Votel at Chicago Title Company, 2365 Northside Dr., #500,
San Diego, CA 92108.
"Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple
title to the Property from the Seller to the Purchaser, in a form reasonably acceptable to the Seller
and Purchaser.
"Hazardous Materials" means:
(I) Those substances included within the definitions of "hazardous
substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste,"
"pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery Act
(42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic Substances
Control Act (15 U.S.C. §9601 et seq.); the Hazardous Materials Transportation Act (49 U.S.C.
§ 1801 et seq.); or under any other Environmental Laws.
(2) Those substances included within the definitions of `Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§25115, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to §§25140
or 44321 of the California Health and Safety Code.
(3) Those substances included within the definitions of "Hazardous Material,"
"Hazardous Substance," "Hazardous Waste," "Toxic Air Contaminant" or "Medical Waste"
under §§25281, 25316, 25501, 25501.1, 25023.2 or 39655 of the California Health and Safety
Code.
(4) Those substances included within the definitions of "Oil" or a "Hazardous
Substance" listed or identified pursuant to §311 of the Federal Water Pollution Control Act, 33
U.S.C. §1321, as well as any other hydrocarbonic substance or by-product.
(5) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste" or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title
22 of the California Code of Regulations.
(6) Those substances listed by the State of California as a chemical known by
the State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code.
(7) Any material which due to its characteristics or interaction with one or
more other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose.
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8
(8) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank.
(9) Pesticides regulated under the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. § 136 et seq.
(10) Asbestos, PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.
(11) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-level wastes," "high-level
radioactive waste," "spent nuclear fuel" or "transuranic waste" and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42
U.S.C. §§2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. §§10101 et seq., or pursuant to
the California Radiation Control Law, California Health and Safety Code §§25800 et seq.
(12) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 et seq., or the California Occupational Safety and Health Act, California Labor
Code §§6300 et seq.
(13) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code.
(14) Those substances listed in the United States Department of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency, or any successor
agency, as hazardous substances (40 CFR Part 302).
(15) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations.
(16) Any material, waste or substance that is a petroleum or refined petroleum
product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33
U.S.C. §1321 or listed pursuant to 33 U.S.C. §1317, a flammable explosive or a radioactive
material.
"Immediately Available Funds" means a bank wire transfer or a certified bank or
cashier's check.
"Improvements" means collectively: (i) any and all buildings, structures and
improvements, of any kind whatsoever, located at or affixed to the Property; (ii) all rights,
privileges and easements appurtenant to the Property, if any, including, without limitation, all
minerals, oil, gas and other hydrocarbon substances on and under the Property, if any; and (iii)
all development rights, air rights, and water rights if any, relating to the Property.
"Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions
in the Title Policy; (ii) real property taxes and assessments which are a lien but not yet payable;
4
9
and (iii) all applicable building, zoning and use restrictions and/or regulations of any
municipality, township, county or state.
"Property" means the Property and the Improvements, if any.
"Purchase Price" shall have the meaning set forth in Section 3(a) of this Agreement.
"Purchaser" means Alturas Imperial LLC, a California Limited Liability Company;
provided, however, if it assigns its interest in this Agreement pursuant to Section 10 of this
Agreement, then the term "Purchaser" shall mean such assignee.
"Seller" means the City of National City.
"Title Policy" means a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, insuring that title to the fee interest in the Property is vested in the Purchaser
subject only to the Permitted Exceptions The Title Policy shall be obtained through Chicago
Title Company. Seller shall pay the cost of the CLTA Owner's Policy of Title Insurance.
Purchaser may obtain an ALTA Owner's Policy of Title Insurance, in which event Purchaser
shall pay the cost difference between the cost of the ALTA Owner's Policy of Title Insurance
and the cost of a CLTA Owner's Policy of Insurance.
3. Purchase Price.
(a) Total Purchase Price. The purchase price to be paid by the Purchaser for the
Property shall be Eighteen Thousand and No/100 dollars ($18,000.00) ("Purchase Price").
(b) Deposit; Liquidated Damages.
(1) Deposit. Purchaser shall make a deposit ("Deposit") into Escrow of
Immediately Available Funds in the amount of Five Thousand and no/100 dollars ($5,000.00)
within three (3) Business Days of the Effective Date. The Deposit shall be credited against the
Purchase Price. If the Purchaser elects to terminate this Agreement prior to Closing, then the
Deposit shall be immediately returned by Escrow Agent to the Purchaser. At Closing, the
Deposit shall be released by Escrow Agent to the Seller. The Deposit, and any interest earned on
the Deposit, shall be credited in favor of the Purchaser against the Purchase Price as set forth in
Section 3(c), below.
(2) LIOUIDAI'hD DAMAGES. THE DEPOSIT SHALL BE
REFUNDABLE TO THE PURCHASER AS MAY BE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT HEREUNDER, THE SOLE REMEDY OF THE SELLER SHALL BE TO
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO
PURCHASER AND ESCROW AGENT, WHEREUPON THE SELLER SHALL RETAIN THE
DEPOSIT(S) ACTUALLY DEPOSITED BY PURCHASER INTO ESCROW AS
LIQUIDATED DAMAGES (AND THE SELLER WAIVES ANY RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT SET FORTH IN CALIFORNIA CIVIL CODE SECTION
1680 OR 3389). THEREAFTER, NO PARTY HERETO SHALL HAVE ANY FURTHER
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LIABILITY OR OBLIGATION TO ANY OTHER PARTY HERETO EXCEPT FOR: (i) THE
SELLER'S RIGHT TO RECEIVE AND RETAIN SUCH LIQUIDATED DAMAGES; AND (ii)
THE OBLIGATION OF THE PARTIES TO PAY AMOUNTS INTO ESCROW TO PAY A
PORTION OF THE FEES AND COSTS OF ESCROW AS SET FORTH IN SECTIONS SAND
6 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE
SELLER'S ACTUAL DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT
HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND
THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ., CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE HEREOF INCLUDING,
WITHOUT LIMITATION, THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF
POTENTIAL HARM TO THE SELLER THAT CAN REASONABLY BE ANTICIPATED
AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES RESULTING FROM
SUCH DEFAULT WOULD BE COSTLY AND INCONVENIENT. IN PLACING ITS
INITIALS IN THE SPACE BELOW, EACH PARTY HERETO SPECIFICALLY CONFIRMS
THE ACCURACY OF THE FOREGOING AND THE FACT THAT SUCH PARTY HAS
BEEN REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
THE PROVISIONS OF THIS SECTION 3(B)(2) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Seller's Initials Purchaser's Initials
(c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1)
Business Day prior to the Closing Date, the Purchaser shall cause Immediately Available Funds
to be delivered to the Escrow Agent in an amount of equal to the Purchase Price, minus the
Deposit.
(d) Disbursement to the Seller. Immediately after the Closing, the Escrow Agent
shall disburse to the Seller the funds that the Seller is entitled to receive under this Agreement.
4. Due Diligence. The Purchaser has completed its due diligence with respect to the
Property.
5. Conditions Precedent for the Benefit of the Seller. The Seller's obligation to Close shall
be conditioned upon the satisfaction or emailed or written waiver by the Seller of all of the
conditions precedent ("Conditions Precedent for the Benefit of the Seller") set forth in this
Section 5. Any of the Conditions Precedent for the Benefit of the Seller may be waived by the
Seller unilaterally; and if so waived, such conditions shall be of no further effect hereunder. Any
such waiver shall be effective only if the same is expressly waived (i) by email from the Seller to
the Purchaser and Escrow Agent; or (ii) in a writing signed by the Seller and delivered to the
Purchaser and Escrow Agent. If the Conditions Precedent for the Benefit of the Seller are not
satisfied by the deadlines set forth in this Section 5 or expressly waived, the Seller (provided the
Seller is not in default hereunder) may provide emailed or written notice of the Seller's
conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of
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such notice of conditional termination, the Purchaser shall have ten (10) Business Days to cure
any non -satisfaction of a condition or other default specified in the notice of conditional
termination; provided, however, the foregoing grace period shall be two (2) Business Days if the
unsatisfied condition is a failure by Purchaser to deliver funds required to close on the Closing
Date. If such matter remains unsatisfied or the default remains uncured after the expiration of
such ten (10) Business Day period, then this Agreement shall terminate at the close of business
on such tenth (10th) Business Day (or second (2nd) Business Day if the unsatisfied condition is a
failure by Purchaser to deliver funds required to close on the Closing Date). In the event of
termination of this Agreement (and by operation of law the Escrow) pursuant to this Section 5,
then: (x) as set forth in the liquidated damages provision of Section 3(b)(2) above, all rights and
liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately
terminate, except those which specifically survive such termination; (y) Escrow Agent shall
deliver the Deposit to the Seller and shall return to the Seller all funds or other things deposited
in Escrow by the Seller; and (z) Escrow Agent shall return to the Purchaser all funds or other
things deposited in Escrow by the Purchaser, less the Deposit. Provided, however, all fees and
costs charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2)
by the Purchaser. Notwithstanding clause (x) of this Section 5, in the event of termination of this
Agreement pursuant to this Section 5, the Purchaser and the Seller shall cooperate with one
another, execute all documents reasonably necessary and take all reasonable steps as may be
required by Escrow Agent in order to accomplish the purposes of this Section 5.
(a) Purchaser making the Deposit into Escrow, as set forth in Section 3(b)(1), above.
(b) The delivery by the Purchaser into Escrow at least one (1) Business Day prior to
Closing of Immediately Available Funds in the amount required by Section 3(c), above.
(c) The delivery by the Purchaser into Escrow of all other documents and instruments
required by this Agreement or reasonably required by Seller and/or Escrow Agent to complete
the Closing, at least one (1) Business Day prior to Closing.
(d) Purchaser not being in default of any of its representations or warranties under
this Agreement, or any other material terms or conditions related to Purchaser.
(e) As of the Closing Date, the Purchaser has not made an assignment for the benefit
of creditors, filed a bankruptcy petition, been adjudicated insolvent or bankrupt, petitioned a
court for the appointment of any receiver of, or trustee for, the Purchaser, or commenced any
proceeding relating to the Purchaser under any reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect.
(f) This Agreement has been formally approved by resolution of the City Council of
the City of National City.
6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser's obligation to
Close shall be conditioned upon the satisfaction or emailed or written waiver by the Purchaser of
all of the conditions precedent ("Conditions Precedent for the Benefit of the Purchaser") set forth
in this Section 6. Any of the Conditions Precedent for the Benefit of the Purchaser may be
waived by the Purchaser unilaterally; and if so waived, such conditions shall be of no further
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12
effect hereunder. Any such waiver shall be effective only if the same is expressly waived (i) by
email from the Purchaser to the Seller and Escrow Agent; or (ii) in a writing signed by the
Purchaser and delivered to the Seller and Escrow Agent. If the Conditions Precedent for the
Benefit of the Purchaser are not satisfied by the deadlines set forth in this Section 6 or expressly
waived, the Purchaser (provided the Purchaser is not in default hereunder) may provide emailed
or written notice of the Purchaser's conditional termination of this Agreement to the Seller and
Escrow Agent. After receipt of such notice of conditional termination, the Seller shall have ten
(10) Business Days to cure any non -satisfaction of a condition or other default specified in the
notice of conditional termination. If such matter remains unsatisfied or the default remains
uncured after the expiration of such ten (10) Business Day period, then this Agreement shall
terminate at the close of business on such tenth (10th) Business Day. In the event of termination
of this Agreement (and by operation of law the Escrow) pursuant to this Section 6, then: (x)
except to subparagraph (f) below, the same shall be a default by the Seller (y) Escrow Agent
shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser,
including without limitation, the Deposit; and (z) Escrow Agent shall return to the Seller all
funds or other things deposited in Escrow by the Seller. Purchaser is not waiving any default by
the Seller and nothing contained in this Section 6, including, without limitation, the immediately
foregoing sentence shall be a waiver of any right of Purchaser to recover damages from the
Seller for failure of any Conditions Precedent for the Benefit of the Purchaser. Provided,
however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the
Seller and one-half (1/2) by the Purchaser.
(a) The deposit into Escrow by the Seller of the Grant Deed, duly executed and
acknowledged, conveying fee simple title to the Property to the Purchaser at least one (1)
Business Day prior to Closing.
(b) The deposit by the Seller into Escrow of a duly executed affidavit that it is not a
foreign person and is a "United States Person" as such term is defined in Section 7761(a)(30) of
the Internal Revenue Code of 1986, as amended, at least one (1) Business Days prior to Closing.
The affidavit shall be in the form prescribed by federal regulations, if any.
(c) The deposit by the Seller into Escrow of a duly executed California Form 593(c)
or other evidence that withholding of any portion of the Purchase Price is not required by the
Revenue and Taxation Code of California, at least one (1) Business Day prior to Closing.
(d) The deposit by the Seller into Escrow of all additional documents and instruments
as are reasonably required by the Purchaser and/or Escrow Agent to complete the Closing, at
least one (1) Business Day prior to Closing.
(e) The Escrow Agent is prepared and obligated to issue the Title Policy in
Purchaser's favor upon the recordation of the Grant Deed and there are no exceptions to the Title
Policy, except for Permitted Exceptions.
(f) Seller not being in default of any of its representations or warranties under this
Agreement, or any other material terms or conditions related to Seller.
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(g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement
affecting the Property, except for the Encroachment Permit and Agreement, as described in
Recital D, above.
(h) As of the Closing Date there is not pending, or threatened to be pending, any
action or proceeding by any person or before any government authority, the outcome of which
could prohibit the use of the Property as intended by the Purchaser.
7. Representations and Warranties; Waivers and Releases.When making the representations
and warranties set forth in this Section 7, each party making a representation and/or warranty
represents that the same are true, correct and complete as of the date hereof and shall be and are
true, correct and complete as of the Closing Date. The representations and warranties shall
survive the Closing.
(a) Representations and Warranties Regarding Authority. The Seller and the
Purchaser each hereby represents and warrants to the other that this Agreement and all
documents or instruments executed by them which are to be delivered at or prior to the Closing
are, or on the Closing Date will be, duly authorized, executed and delivered by the Seller or the
Purchaser, as applicable.
(b) Representations and Warranties Regarding Enforceability of Agreement. The
Seller and the Purchaser each hereby represents and warrants to the other that this Agreement
and all documents required hereby to be executed by them shall be valid, legally binding
obligations of, and enforceable against, the Seller or the Purchaser, as applicable, in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and general principles of equity
(whether enforcement is sought in equity or at law).
(c) Seller Representations and Warranties Pertaining to Legal Matters. The Seller
hereby represents and warrants to the Purchaser that:
(1) As of the Effective Date and the Closing Date, the Seller is the sole owner
of the fee title interest to the Property.
(2) There is no pending or threatened proceeding in eminent domain or
otherwise, which would affect the Property, or any portions thereof, nor any facts which
might give rise to such action or proceeding.
(d) Seller Representations and Warranties Pertaining to Options. The Seller hereby
represents and warrants to the Purchaser that no person has any option or right of first refusal to
purchase the Property or any parts thereof.
(e) Material Adverse Changes. If Seller receives any notice or knowledge of
anything materially adversely affecting Seller's representations or warranties after the date of
this Agreement, then Seller shall immediately notify Purchaser in writing of such fact or
circumstance. If Purchaser receives written notice from Seller pursuant to the immediately
preceding sentence, and Seller in such notice does not agree to cure the same at or prior to
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Closing to Purchaser's reasonable satisfaction, then, Purchaser shall have the right to bring an
action against Seller on the breach of such representation or warranty.
(f) Seller Representation and Warranty Pertaining to Tenants. The Seller hereby
represents and warrants to the Purchaser that no person has any lease or other right to occupy the
Property or any parts thereof, except for the Encroachment Permit and Agreement as described
in Recital D, above.
(g) Seller Representation and Warranty Regarding Operation of the Property. The
Seller hereby represents and warrants to the Purchaser that there are no oral or written
agreements or understandings concerning the Property by which the Purchaser would be bound
following the Closing.
(h) AS IS CONDITION. PURCHASER HEREBY ACKNOWLEDGES,
REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL
INDUCEMENT TO SELLER TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN
CONSIDERATION OF THE PERFORMANCE BY SELLER OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENTTHAT, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF THIS
AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE
ON AN "AS IS, WHERE IS" BASIS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXIS PENCE
OF HAZARDOUS MATERIALS OR MOLD UPON THE PROPERTY OR ANY PORTION
THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND
WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER
AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE
PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE
OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES,
OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING
PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION,
DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR
FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE
IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) —
12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS
MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY; (9) THE
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SQUARE FOOTAGE OF THE PROPERTY OR THE IMPROVEMENTS THEREON; (10)
IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION,
THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL
PROPERTY, 1F ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER
OR WATER RIGHTS; (13) THE DEVELOPMENT POTENTIAL FOR THE PROPERTY; (14)
THE ABILITY OF PURCHASER TO REZONE THE PROPERTY OR CHANGE THE USE
OF THE PROPERTY; (15) THE ABILITY OF PURCHASER TO ACQUIRE ADJACENT
PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY
UNDERGROUND UTILITIES; (17) THE EXIS FENCE AND POSSIBLE LOCATION OF
ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY
WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE
BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE
IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE
NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR
USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL
PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS ORLAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER
AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MATTER
CONCERNING THE PROPERTY. NOTWITHSTANDING THE FOREGOING OR
ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, SELLER IS NOT
RELEASED FROM ANY LIABILITY TO PURCHASER FOR FRAUD ORBREACH OF
ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS
AGREEMENT. Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation, this Section 7(h), any right waived by Purchaser and any release by
Purchaser, shall only release or waive the Purchaser's right to enforce any judgment (including
without limitation, damages, attorneys' fees, costs, expenses or any other compensation of any
type whatsoever) personally against only the Seller and Seller's successors, assigns, officers,
directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and
agents (collectively, the "Seller Parties") or any of them. Purchaser is not waiving any right to
bring any action against any of the "Non -Released Parties" (defined below) or waiving recovery
against or otherwise releasing or agreeing to forego Purchaser's rights with respect to any
insurance policy, or any other person (other than the right to enforce a judgment personally
against any of the Seller Parties), including without limitation persons obligated to the Seller
Parties, by right of subrogation or otherwise, prior owners or occupants of the Property, the
tenants, persons performing work at the Property and/or any insurance policies held by any or all
such persons (collectively, the "Non -Released Parties").
PURCHASER ACKNOWLEDGES THAT PURCHASER SHALL HAVE
COMPLE FED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE
ACQUISITION OF THE PROPERTY HEREUNDER AND WILL ACQUIRE THE SAME
SOLELY ON THE BASIS OF SUCH EXAMINATIONS AND THE TITLE INSURANCE
PROTECTION FOR THE PROPERTY AFFORDED BY THE TITLE POLICY, EXCEPT AS
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SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT THE
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION
OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR ANY NEGLIGENT
MISREPRESENTATION OR FAILURE TO INVESTIGATE THE PROPERTY NOR SHALL
SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STA 1'EMENTS,
REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS, OR
OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION
THEREOF, FURNISHED BY SELLER, OR ANY REAL ESTATE BROKER, AGENT,
REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING ON
SELLER'S BEHALF EXCEPT FOR REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED IN SECTION 7 OF THIS AGREEMENT. IT IS
ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT RELEASED FROM ANY LIABILITY TO PURCHASER
FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY
SET FORTH IN THIS AGREEMENT.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER IS
FULLY AWARE OF THE AGE OF THE PROPERTY, THAT OVER TIME VARIOUS
EVENTS MAY HAVE OCCURRED ON THE PROPERTY WHICH EVENTS MAY BE
TYPICAL AND (OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF
SIMILAR AGE TO THE PROPERTY AND SIMILARLY LOCATED IN THE CITY OF
NATIONAL CITY AND (OR) THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT
SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE,
SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS,
PERMITS, APPROVALS, LICENSES AND (OR) ORDERS OF GOVERNMENTAL
AGENCIES WITH JURISDICTION OVER THE PROPERTY.
THE CLOSING OF THE PURCHASE OF THE PROPERTY BY PURCHASER
HEREUNDER SHALL BE CONCLUSIVE EVIDENCE THAT: (A) PURCHASER HAS
FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND
COMPLETELY INSPECTED) THE PROPERTY; AND (B) PURCHASER ACCEPTS THE
PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE
FOR PURCHASER'S PURPOSES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR
RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN
SECTION 7 OF THIS AGREEMENT, PURCHASER SHALL PERFORM AND RELY
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SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE
PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT SELLER'S COOPERATION WITH PURCHASER
WHETHER BY AUTHORIZING THE ENCROACHMENT PERMIT AND AGREEMENT,
PROVIDING DOCUMENTS RELATING TO THE PROPERTY, OR PERMITTING
INSPECTION OF THE PROPERTY, SHALL NOT BE CONSTRUED AS ANY WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO
THE PROPERTY, OR WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR
RELEVANCE OF THE DOCUMENTS PROVIDED TO PURCHASER BY SELLER IN
RELATION TO THE PROPERTY, PROVIDED THAT THE FOREGOING SHALL NOT BE
A LIMITATION OR MODIFICATION OF THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED FOR IN SECTION 7 OF THIS AGREEMENT.
SELLER'S INITIALS PURCHASER'S INITIALS
(i)
Indemnity and Release.
(1) Indemnity. For the purposes of this Section 7(i), the term "Claims" shall
mean any and all claims, obligations, liabilities, causes of action, suits, debts, liens, damages,
judgments, losses, demands, orders, penalties, settlements, costs and expenses (including,
without limitation, attorneys' fees and costs and any and all costs and expenses related to,
whether directly or indirectly, any and all clean-up, remediation, investigations, monitoring,
abatement, mitigation measures, fines or removal with respect to Hazardous Materials) of any
kind or nature whatsoever. The definition of "Claims" shall include, without limitation, Claims
under contract law or tort law. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Section 7(i), Seller would not have entered into the Agreement.
Purchaser, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"),
shall indemnify, defend, protect and hold Seller and Seller's successors, assigns, partners,
affiliates and members and all their respective officers, directors, shareholders, participants,
partners, affiliates, employees, representatives, invitees and agents (collectively, "Seller Parties")
harmless from and against any and all Claims resulting from, related to, or based upon, whether
directly or indirectly: (i) the breach by Purchaser of any representation, warranty, covenant or
obligation contained in the Agreement, or in any other agreement, document, exhibit or
instrument related hereto or referenced herein; (ii) any Claim or Claims, if the basis of such
Claim or Claims arose on or after the Closing, except as noted in subparagraph (iv) below, and if
the basis of such Claim or Claims arose from, is based upon, relates to or pertains to, whether
directly or indirectly, the operation, management and use of the Property; (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from, is based upon, relates to or
pertains to, whether directly or indirectly, any act or omission of Purchaser or any of its
employees, agents or representatives; and (iv) (A) any Claim or Claims that relate to the
condition of the Property on or after the Close of Escrow, including any judgment, order or
settlement under or otherwise pursuant to a lawsuit, and (B) any Claim or Claims that relate to
defects in the Property (including, without limitation, patent and latent construction defects),
regardless of whether said defects or the cause of the same arose either before or after the Close
of Escrow, including any judgment, order or settlement under or otherwise pursuant to the
lawsuit. Any defense of any or all of the Seller Parties referenced in this Section 7(i)(1), shall be
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at the Purchaser's sole cost and expense and by counsel selected by the Purchaser, subject to the
reasonable approval of the indemnified person, which counsel may, without limiting the rights of
any of the Seller Parties pursuant to the next succeeding sentence of this Section 7(i)(1), also
represent the Purchaser in such investigation, action or proceeding. If any of the Seller Parties
that is being indemnified determines reasonably and in good faith that its defense by the
Purchaser is reasonably likely to cause a conflict of interest or is being conducted in a manner
which is prejudicial to such persons interests, such indemnified person may elect to conduct its
own defense through counsel of its own choosing, subject to the reasonable approval of the
Purchaser, and at the expense of the Purchaser.
(2) Release and §1542 Waiver. Notwithstanding the following or anything to
the contrary set forth in this Agreement, the Seller is not released from any liability to the
Purchaser for fraud or breach of any covenant or warranty set forth in this Agreement. Subject to
the immediately preceding sentence and the Purchaser's right to rely on the Seller's express
representations and warranties set forth in Section 7 hereof, Purchaser for itself and on behalf of
each of its successors and/or assigns (collectively, the "Releasors") by this general release of
known and unknown claims (this "Release") hereby irrevocably and unconditionally release and
forever discharge Seller and each of the Seller Parties (collectively, the "Releasees") or any of
them, from and against any and all Claims of any kind or nature whatsoever, WHETHER
KNOWN OR UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own, hold, or claim to have had, owned, or
held, against any of the Releasees arising from, based upon or related to, whether directly or
indirectly any facts, matters, circumstances, conditions or defects (whether patent or latent) of all
or any kinds, related to, arising from, or based upon, whether directly or indirectly, the Property,
including without limitation, (i) the physical condition, quality and state of repair of the Property
conveyed, (ii) any latent or patent defect affecting the Property conveyed, and (iii) the presence
of Hazardous Materials in, on, about or under the Property or which have migrated from adjacent
lands to the Property or from the Property to adjacent lands.
Except for Claims for Seller's fraud or the breach of any representations and warranties
of the Seller expressly provided for in Section 7 of this Agreement, Releasors hereby further
agree as follows:
(i) Releasors acknowledge that there is a risk that subsequent to the
execution of this Agreement, Releasors may discover, incur, or suffer from Claims which were
unknown or unanticipated at the time this Release is executed, including, without limitation,
unknown or unanticipated Claims which, if known by Releasors on the date this Release is being
executed, may have materially affected Releasors' decision to execute this Agreement. Releasors
acknowledge that Releasors are assuming the risk of such unknown and unanticipated Claims
and agree that this Release applies thereto. Releasors expressly waive the benefits of Section
1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
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(ii) Releasors represent and warrant that Releasors have been
represented by independent counsel of Releasors' own choosing in connection with the
preparation and review of the Release set forth herein, that Releasors have specifically discussed
with such counsel the meaning and effect of this Release and that Releasors have carefully read
and understand the scope and effect of each provision contained herein. Releasors further
represent and warrant that Releasors do not rely and have not relied upon any representation or
statement made by any of the Releasees or any of their representatives, agents, employees,
attorneys or officers with regard to the subject matter, basis or effect of this Release.
(iii) Releasors represent and warrant to Releasees that Releasors have
not and shall not assign or transfer or purport to assign or transfer any Claim or Claims or any
portion thereof or any interest therein, and shall indemnify, defend, protect and hold the
Releasees harmless from and against any Claim or Claims based on or arising out of, whether
directly or indirectly, any such assignment or transfer, or purported assignment or transfer.
SELLER'S INITIALS PURCHASER'S INITIALS
It is specifically intended that each of the Seller Parties shall be third party beneficiaries
of this Section 7(i).
(3) Survival. The provisions of this Section 7(i) shall survive the Closing and,
as applicable, the termination of this Agreement.
(j) Waiver of Subrogation; Survival. Purchaser hereby waives any right of
subrogation as to Seller or the Seller Parties. Each and every provision of this Section 7 shall,
except as may be expressly limited in this Section 7, survive the Closing and, as applicable, the
termination of this Agreement, and, but for Purchaser's agreement to each and every provision of
this Section 7, Seller would not have executed this Agreement.
8. Condemnation of the Property.
(a) If between the Effective Date and the Closing Date, any condemnation or eminent
domain proceeding is commenced that will result in the taking of any part of the Property,
Purchaser may, at Purchaser's election, either:
(1) Terminate this Agreement by giving written or emailed notice to the Seller
and the Escrow Agent in which event all remaining funds or other things deposited in Escrow by
Purchaser, including without limitation, the Deposit, shall be returned to the Purchaser
immediately from Escrow, together with any interest earned thereon and all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser; or
(2) Proceed with the Closing with no reduction in the Purchase Price, in
which event the Seller shall assign to the Purchaser all of the Seller's rights, titles and interests to
any award made for the condemnation or eminent domain action.
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(b) Notice. If the Seller obtains notice of the commencement of or the threatened
commencement of eminent domain or condemnation proceedings with respect to all of any
portion of the Property, the Seller shall notify the Purchaser in writing.
9. Broker's Commission. The Purchaser and Seller each hereby represents and warrants to
the other that it has not engaged the services of any real estate agent or broker with respect to the
transaction that is the subject of this Agreement.The Purchaser and the Seller each agree that, to
the extent any real estate commission, brokerage commission or finder's fee shall be earned or
claimed in connection with this Agreement or the Closing, the payment of such fee or
commission, and the defense of any action in connection therewith, shall be the sole and
exclusive obligation of the party who requested (or is alleged to have requested) the services of
the broker or finder. In the event that any claim, demand or cause of action for any such
commission or finder's fee is asserted against the party to this Agreement who did not request
such services (or is not alleged to have requested such services), the party through whom the
broker or finder is making the claim shall indemnify, defend (with an attorney of the
indemnitee's choice), protect and hold harmless the other from and against any and all such
claims, demands and causes of action and expenses related thereto, including, without limitation,
attorneys' fees and costs.The provisions of this Section 9 shall survive the Closing or termination
of this Agreement.
10. Assignment. The Purchaser shall not assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the Seller, which consent may be
withheld or granted in Seller's sole and absolute discretion; provided, however, the Purchaser
may assign this Agreement to an entity in which the Purchaser has a controlling or majority
interest without the prior written consent of the Seller provided Purchaser and such assignee
execute an assignment agreement in form and substance reasonably acceptable to Seller.
11. Notices. All notices under this Agreement shall be in writing and sent (a) by certified or
registered mail, return receipt requested, in which case notice shall be deemed delivered three (3)
Business Days after deposit, postage prepaid in the United States Mail, (b) overnight by a
nationally recognized overnight courier such as UPS Overnight, or FedEx, in which case notice
shall be deemed delivered one (1) Business Day after deposit with that courier, (c) by personal
delivery, in which case notice shall be deemed delivered upon the actual date of delivery, or (d)
by email, in which case notice shall be deemed delivered upon the actual date of delivery. All
notices shall be delivered to the following addresses:
If to Purchaser:
Alturas Imperial LLC
Attn: Craig Metz, Manager
Imperial Group
12675 Danielson Court, Suite 414
Poway, CA 92064
Tel: (949) 706-7575
Fax: (858) 456-6577
Email: craigmetz@pacificmidwest.com
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If to Seller:
City of National City
Attn: Martin Reeder, Principal Planner
1243 National City Boulevard
National City, CA 91950
Tel: (619) 336-4313
Fax: (619) 336-4321
Email: mreeder@nationalcityca.gov
The addresses above may be changed by written notice to the other party; provided
however, that no notice of a change of address shall be effective until actual receipt of the notice.
12. Risk of Loss. The risk of loss or damage to the Property until the close of Escrow will
be borne by Purchaser, due to the Encroachment Permit and Agreement. If prior to the close of
Escrow there is damage to or destruction of the Property, Purchaser shall nevertheless close
Escrow with the Property in such damaged condition, and the Purchase Price shall not be
reduced. Seller shall not be obligated to repair or restore the Property.
13. Prorations. Real property taxes and assessments and utility costs, and other expenses of
operating the Property (provided, however, no proration shall be made with regard to any capital
improvements) shall be prorated as of the close of Escrow. Seller shall pay all documentary
transfer taxes. Seller shall pay all real property taxes and assessments applicable to the period
prior to the close of Escrow, and if any such taxes are unpaid after the close of Escrow, then
Seller shall pay them promptly and in any event within ten (10) days after Purchaser's request
(which shall include a copy of the relevant tax bill).
14. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in
accordance with California law, without regard to any choice of law principles.
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(c) Captions. The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this Agreement or any of
the provisions of this Agreement.
(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors, heirs and permitted assigns.
(e) Modifications; Waiver. No waiver, modification, amendment, discharge or
change of this Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge or change is sought.
(fj Entire Agreement. This Agreement contains the entire agreement between the
parties relating to Purchaser's acquisition of the Property from the Seller and all prior or
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contemporaneous agreements, understandings, representations or statements, oral or written, are
superseded.
(g) Partial Invalidity. Any provision of this Agreement which is unenforceable,
invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of
this Agreement shall have no effect, but all the remaining provisions of this Agreement shall
remain in full effect.
(h) Survival. Provisions of this Section 14 shall survive the Closing or the
termination of this Agreement.
(i) No Third -Party Rights. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties to this Agreement and their respective
successors and assigns, any rights or remedies.
(j) Time of Essence. Time is of the essence in this Agreement.
(k) Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be
awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5
and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be
subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch.
(1) Relationship. Nothing contained in this Agreement shall be deemed or construed
by the parties or by any third person to create a relationship of principal and agent or partnership
or a joint venture between the Purchaser and the Seller or between any of them and any third
party.
(m) Recording. Neither this Agreement nor a memorandum hereof shall be recorded.
(n) Seller Approval. Where this Agreement refers to an action or approval of the
Seller, it shall mean the approval of the of the Seller, or designee, unless otherwise provided.
(o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are
hereby incorporated in this Agreement by this reference, regardless of whether or not the exhibits
are actually attached to this Agreement. The Recitals to this Agreement are hereby incorporated
in this Agreement by this reference.
(p) Independent Counsel. Seller and Purchaser each acknowledge that: (a) they have
been given the opportunity to be represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such counsel, if such
counsel was retained; and (c) this Agreement is the result of negotiations between the parties
hereto and the advice and assistance of their respective counsel, if such counsel was retained.
The fact that this Agreement was prepared or negotiated by Purchaser's or Seller's counsel as a
matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this
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Agreement shall not be construed against either party due to the fact that Purchaser's or Seller's
counsel prepared or negotiated this Agreement in its final form.
(q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations
set forth in this Agreement, including without limitation, the deadline for Closing and the
deadline for making the Deposit, shall all be automatically extended by one (1) Business Day for
each Business Day that the Seller fails to timely provide any notice, report, materials, studies,
documentation or other information required by this Agreement.
(r) Capacity and Authority. All individuals signing this Agreement for a party which
is a corporation, limited liability company, partnership or other legal entity, or signing under a
power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent
and warrant that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
iN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
PURCHASER: SELLER:
Alturas Imperial, LLC City of National City
By: ( C^"-t--
Print Name:
Its:
By:
Print Name:
Its:
By:
Print Name:
Its:
Approved as to Form:
By:
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Claudia Gacitua Silva
City Attorney
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
20
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RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE
AGREEMENT AND AUTHORIZE CITY STAFF TO ENTER A 30-DAY
ESCROW BY AND BETWEEN THE CITY OF NATIONAL CITY AND
ALTURAS IMPERIAL, LLC, FOR THE SALE OF A RECENTLY VACATED
PORTION OF "G" AVENUE, SOUTH OF EAST 24TH STREET IN NATIONAL CITY
WHEREAS, on December 18, 2012, the City Council adopted Resolution No.
2012-246, which ordered the vacation of the northerly 194 feet of the easterly 15 feet of' "G"
Avenue (the "Property") in association with the construction of a proposed Social Security
Administration Office; and
WHEREAS, the vacated area would allow for the expansion of the proposed
parking lot serving the proposed Social Security Administration Office so that it can accommodate
emergency vehicle access and increased parking for customers; and
WHEREAS, in order to construct improvements upon this property, the developer
for the new Social Security Office desires to purchase the City -owned Property so that
improvements can be constructed upon the Property; and
WHEREAS, the Property does not meet minimum design standards for a buildable
lot, as it is a separate parcel immediately surrounded by parking and road uses, it is not identified
in the General Plan or other plans as being needed for any City development or improvement
projects, and would be of greater benefit to an adjacent property now that it is no longer a right-of-
way; and
WHEREAS, on February 19, 2013, the City Council adopted Resolution No.
2013-24, declaring that the vacated street right-of-way described as the northerly 194 feet of the
easterly 15 feet of "G" Avenue was determined to no longer be necessary for City use, and that
said remnant parcel was declared to be surplus in accordance with City Council Policy 901.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
National City that the vacated street right-of-way described as the northerly 194 feet of the
easterly 15 feet of "G" Avenue has been appraised and its title insured in accordance with City
Council Policy 901, and City staff is directed to enter into a 30-day escrow to sell said remnant
parcel consistent with the terms of the Purchase and Sale Agreement.
BE IT FURTHER RESOLVED that the City Council of the City of National City
hereby authorizes the Mayor to execute the Purchase and Sale Agreement and authorizes the
City Manager or her designee to execute all documents as required by the Purchase and Sale
Agreement and escrow instructions.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST: APPROVED AS TO FORM:
Michael R. Dalla, City Clerk
Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY
Office of the City Clerk
1243 National City Blvd., National City, California 91950
619-336-4228 phone / 619-336-4229 fax
Michael R. Dalla, CMC - City Clerk
September 5, 2013
Mr. Craig Metz
Alturas Imperial, LLC
12675 Danielson Court, Suite 414
Poway, CA 92064
Dear Mr. Metz,
On August 20th, 2013, Resolution No. 2013-127 was adopted by the City Council of the
City of National City authorizing a Purchase and Sale Agreement with Alturas Imperial,
LLC.
We are enclosing for your records a certified copy of the above Resolution and a fully
executed original Agreement.
Michael R. Dalla, CMC
City Clerk
Enclosures