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HomeMy WebLinkAbout2013 CON Robert & David Cohartin - Purchase and Sale Agreement 1726 Wilson AvenueNOTE TO FILE 09-16-13 IN THE MATTER OF: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Purchase and Sale Agreement with Robert T. Comartin and David P. Comartin for the purchase of property located at 1726 Wilson Avenue for the total purchase price of $1,650,000 for the relocation of the National City Public Works Facilities from 2100 Hoover Avenue in the City of National City allowing for the development of 201 affordable rental housing units as Phase I and Phase II of the Westside In -Fill Transit Oriented Development Project. Please note the following: ONLY A CERTIFIED COPY OF THE PURCHASE AND SALE AGREEMENT WAS FILED WITH THE OFFICE OF THE CITY CLERK ORIGINATING DEPARTMENT: _ CDC X Housing & Grants City Attorney Human Resources _ City Manager _ MIS _ Community Svcs. _ Planning _ Engineering _ Police Finance Public Works Fire Note: Carlos Aguirre (Housing & Grants) forwarded one (1) fully executed original Purchase and Sale Agreement to the Escrow Company. NTF PURCHASE AND SALE AGREEMENT (1726 Wilson Avenue, National City, 91950) TINS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20`h day of August, 2013 ("Effective Date") by and between David Comartin and Robert Comartin (collectively, the "Seller") and the City of National City ("Purchaser"). RECITALS A. The Seller owns the fee interest in that certain real property generally located at 1726 Wilson Avenue, National City, California 91950, legally described in Exhibit A attached hereto and made a part hereof ("Real Property"). B. 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. Provided, however, the Seller acknowledges and agrees that in order to bind Purchaser to the terms and conditions of this Agreement, this Agreement must be approved by the City of National City, 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 Real 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. The Seller shall deliver possession of the Property to Purchaser at Closing. Possession of the Property shall be delivered to Purchaser subject only to the Title Exceptions, all as defined hereinbelow. 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. 1 "Applicable Environmental Law" means ail 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 herein, which shall not be later than the last day of the Due Diligence Period. "Closing Date" means the date on which the Closing occurs, which date shall be August 29, 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. "Due Diligence Period" means the period of time commencing on the Effective Date and ending on August 23, 2013. "Effective Date" is defined above. "Escrow" means the escrow depository and disbursement services to be performed by Escrow Agent pursuant to the provisions of this Agreement. 2 "Escrow Agent" means Carla Burchard at Stewart Title Company, 5740 Fleet Street, Suite 100, Carlsbad, California 92008. "Grant Deed" means a duly executed and acknowledged grans deed conveying fee simple title to the Real Property from the Seller to the Purchaser, in substantially the form attached hereto as Exhibit B and made a part hereof. "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," "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 Ilazardous 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. 3 (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 el 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 Real Property; (ii) all rights, privileges and easements appurtenant to the Real Property, if any, including, without limitation, all minerals, oil, gas and other hydrocarbon substances on and under the Real Property, if any; and (iii) all development rights, air rights, and water rights if any, relating to the Real Property. 4 "Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions in the Title Policy; (ii) the exceptions shown on Schedule B of that certain Preliminary Report dated May 30, 2013, issued by Stewart Title of California, Inc., Order No. 01180-50483, except for that certain Deed of Trust shown as Exception No. 13 thereon and the community property rights of the Seller's spouses shown as Exception No. 14 thereon. ; (iii) real property taxes and assessments which are a lien but not yet payable; (iv) all applicable building, zoning and use restrictions and/or regulations of any municipality, township, county or state; and (v) defects that are shown on the American Land Title Association survey of the Real Property and Improvements which are approved by Purchaser in writing, or deemed approved by Purchaser, as provided in Section 4(c) below. "Property" means collectively, the Real Property and the Improvements. "Purchase Price" shall have the meaning set forth in Section 3(a) of this Agreement. "Purchaser" means the City of National City; provided, however, if the City of National City assigns its interest in this Agreement pursuant to Section 10 of this Agreement, then the term "Purchaser" shall mean such assignee. "Real Property" is defined above. "Seller" means collectively, David Comartin and Robert Cornartin. "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, which Title Policy shall be obtained through Stewart Title Company. Seller shall pay the cost of the CLTA Owner's Policy of Title Insurance. Purchaser shall pay the cost of any endorsements it desires. 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 Title Insurance. 3. Purchase Price. (a) Total Purchase Price. The purchase price to be paid by the Purchaser for all of the Property shall be One Million Six Hundred Fifty Thousand and No/100 Dollars ($1,650,000.00) ("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 expiration of the Due Diligence Period, as set forth in Section 4 below, then the Deposit shall be immediately returned 5 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 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 5 AND 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 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 equal to the Purchase Price, minus the Deposit and any interest earned on the Deposit, and plus or minus any adjustments for prorations and expenses required under this Agreement. 6 (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 Period. During the Due Diligence Period, the Purchaser may determine in the Purchaser's sole and absolute discretion, whether to proceed with the purchase of the Property. During the Due Diligence Period, the Purchaser may terminate this Agreement for any reason or for no reason at all. If the Purchaser terminates this Agreement during the Due Diligence Period, then: (i) all rights and liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately terminate, except for rights and liabilities that specifically survive such termination; (ii) Escrow Agent shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser; and (iii) Escrow Agent shall return to the Seller all funds or other things deposited in Escrow by the Seller. Provided, however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (I/2) by the Purchaser. (a) Access to the Property and Cooperation. During the Due Diligence Period, and during normal business hours, upon not less than twenty-four (24) hours advance notice to the Seller, Purchaser and its representatives, consultants and attorneys shall have access to entry upon the Property. Purchaser shall indemnify, defend, protect and hold the Seller and all Seller Parties (as defined in Section 7(h)(1) below), and the Property harmless from any losses, costs, damages, claims and/or liabilities, including but not limited to, mechanics' and materialmen's liens and attorney fees and costs proximately caused by such entry upon the Property. In the event Escrow does not close due to an election by the Purchaser not to purchase the Property or a default by the Purchaser, the Purchaser shall, at its sole cost and expense, promptly return the Property to the Seller in the same physical condition it now enjoys, and shall repair any physical damage caused by the Purchaser to the Property as part of or in connection with any such entry upon the Property. The Purchaser is self -insured with excess coverage provided pursuant to an insurance pool. Any agents, consultants or contractors that perform activities on the Property shall maintain: (1) comprehensive public liability and property damage insurance, including direct contractual and contingent liability with limits of $2,000,000 for personal liability to or death of any one person, $2,000,000 for personal injury to or death of any one person on an occurrence basis, $1,000,000 for property damage in any one accident and $2,000,000 policy limit for aggregate operation on an occurrence basis; and (2) comprehensive automobile liability insurance with limits of$1,000,000 for personal injury to or death of any one person, $2,000,000 for personal injury to or death of more than one person in any one accident and $1,000,000 for property damage in any one accident. Certificates of such insurance shall be delivered by the Purchaser to the Seller before entry onto the Property by the Purchaser or its agents, contractors or employees. The Purchaser shall not permit any mechanic's, materialman's, contractor's, subcontractor's or other lien arising from any work done by the Purchaser or its agents pursuant to this Agreement to stand against the Property. If any such lien shall be filed against the Property, the Purchaser shall cause the same to be discharged or bonded within ten (10) days after actual notice of such filing, by payment, deposit, bond or otherwise. The Purchaser's obligations under this Section 4(a) shall survive the termination or expiration of this Agreement and/or Closing. The Purchaser shall have the right during the Due Diligence Period, after providing not less than twenty-four (24) hours advance notice to the Seller, to perform (or cause its consultants and contractors to perform) lead based paint and asbestos testing provided the 7 same are performed in accordance with ASTM published testing standards. Except as set forth in the immediately preceding sentence, if Purchaser desires to do any invasive testing at the Property, the Purchaser may do so only after obtaining Seller's prior written consent to the same, which consent may be withheld or granted on conditions in Seller's sole and absolute discretion. The Purchaser shall promptly restore the Property to the condition the Property was in immediately prior to any such tests, at the Purchaser's sole cost and expense. The Purchaser shall provide the Seller with a complete set of plans, drawings and specifications ("Invasive Testing Plans") that define to the sole satisfaction of the Seller the invasive testing to be performed on the Property and the names of all environmental and other consultants, contractors and subcontractors who will be performing such invasive testing (collectively "Purchaser's Consultants"). The Purchaser shall deliver the names of the Purchaser's Consultants and the Invasive Testing Plans to the Seller concurrently with its request to the Seller that the Purchaser desires to perform invasive testing (unless the names of Purchaser's Consultants have previously been provided to the Seller). (b) Due Diligence Deliveries. Not later than five (5) Business Days after execution and delivery of this Agreement to the Escrow Agent, the Seller shall either provide the Purchaser with true, correct and complete copies of all plans and specifications for the Property (including a set of current as -built plans and specifications), if any. 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 Scllcr's conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of 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 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 8 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 equal to the Purchase Price (less the Deposit and plus or minus expenses and prorations) as 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. 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 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 9 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. (g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement affecting the Property. (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. (i) City. This Agreement has been formally approved by resolution of the City of National 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. 10 (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 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 (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. 11 (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 AGREEMENT THAT, 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 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) 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 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 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 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 12 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 OR LAWS, 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 OR BREACH 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 AS OF THE EXPIRATION OF THE DUE DILIGENCE PERIOD, PURCHASER SHALL HAVE COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE PROPERTY HEREUNDER (IT BEING ACKNOWLEDGED AND AGREED THAT PURCHASER SHALL BE DEEMED TO HAVE INSPECTED EACH APARTMENT UNIT WITHIN THE PROPERTY) 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 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 13 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 STAIEMENTS, 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 IIAS 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 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 WHETIIER BY 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 14 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. N'Re, OR - SELLER'S INITIALS ; HASER' 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, attomeys' 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 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 15 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." (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 16 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 as,,: ent or transfer. `4C. SELLER'S INITIALS ' i r SER 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. (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. 17 (a) Seller's Broker. The Seller hereby represents and warrants to the Purchaser that the Seller has engaged Margo Villarin of JDM Properties ("Seller's Broker") to represent the Seller in the transaction that is the subject of this Agreement and that the Seller has not engaged the services of any other real estate agent or broker with respect to the transaction that is the subject of this Agreement. The Seller shall pay any and all remuneration, brokerage commissions, fees and other compensation to the Seller's Broker pursuant to an agreement between the Seller and the Seller's Broker. (b) Purchaser's Broker. The Purchaser hereby represents and warrants to the Seller that the Purchaser has not engaged the services of any real estate agent or broker with respect to the transaction that is the subject of this Agreement. (c) Indemnity. 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. (d) Survival. The provisions of this Section 9 shall survive the Closing or termination of this Agreement. (e) Scope of Broker Duty. Buyer and Seller acknowledge and agree that JDM Properties: (1) Did not decide what price Buyer should pay or Seller should accept. (2) Does not guarantee the condition of the Property. (3) Shall not be responsible for identifying defects that are not known to JDM Properties. (4) Shall not be responsible for providing legal or tax advice regarding any aspect of the transaction entered into by Buyer and Seller. (5) Shall not be responsible for providing other advice or information that exceeds the knowledge, education and experience required to perform real estate licensed activity. Buyer and Seller agree to seek legal and tax advice from appropriate professionals. 18 (6) Shall not be responsible for verifying square footage, representations of others or information contained in inspection reports, advertisements, or flyers. (7) Does not guarantee the performance, adequacy or completeness of inspections, services, products or repairs provided or made by Seller or others. 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 Seller: If to Purchaser: Copy to: David Comartin and Robert Comartin n 1 1,0 rvaer fSNoIt' C Nuc a t/' nq , C'A • 919/3 Facsimile No. Email: 646 ('om arr.1nnr & yAliee . C'oA-A City of National City Attn: Brad Raulston 1243 National City Boulevard National City, CA 91950 Facsimile No. (619) 336-4286 Email: baulston@nationalcityca.gov Christensen & Spath LLP Attention: Walter F. Spath III 550 West C Street, Suite 1660 San Diego, CA 92101 Facsimile No. (619) 236-8307 Email: wfs@candslaw.net 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. 19 12. Risk of Loss. (a) Damage or Destruction. Subject to the provisions of this Section 12(a), the risk of loss or damage to the Property until the close of Escrow will be borne by Seller. Upon the occurrence of any damage to or destruction of the Property, Seller shall within thirty (30) days after the occurrence of such damage or destruction give written notice to Purchaser ("Damage Notice") specifying the estimated cost to repair or restore the Property and an estimate of the insurance proceeds, if any, that will be available with respect to such damage or destruction. The close of Escrow shall be appropriately delayed to provide adequate time for Seller to give the Damage Notice and Purchaser to make its election provided for below. (b) Damage in Excess of $100,000. If prior to the close of Escrow there is damage to or destruction of the Property that will cost in excess of One Hundred Thousand Dollars ($100,000) to repair or restore, Purchaser shall have the right by written notice given to Seller within ten (10) days of Purchaser receiving the Damage Notice, to elect to: (i) close Escrow in such damaged condition, in which event the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to repair or restore the Property and all insurance proceeds shall be assigned and payable to Purchaser, and if Seller receives any such insurance proceeds, they shall be immediately remitted by Seller to Purchaser at Closing or, if received by Seller after Closing, promptly after receipt; (ii) terminate this Agreement, in which event the Deposit and all interest accrued thereon shall be immediately returned to Purchaser, and neither party shall have any further rights or obligations to the other party, except neither party shall be relieved of any obligations provided for in this Agreement which expressly survives its termination. (c) Damage of $100,000 or Less. If prior to the close of Escrow there is damage to or destruction of the Property that will cost One Hundred Thousand Dollars ($100,000) or less to repair or restore, Purchaser shall nevertheless close Escrow with the Property in such damaged condition, the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to repair or restore the Property, and all insurance proceeds shall be assigned and payable to Purchaser, and if Seller should receive any such insurance proceeds, they shall be immediately remitted to Purchaser. 13. Proration. 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. 20 (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. (0 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 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 19 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 21 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) Purchaser Annroval. Where this Agreement refers to an action or approval of the Purchaser. it shall mean the approval of the Community Development Executive Director of the Purchaser, 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 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) 1031 Exchange. In order to effect an Internal Revenue Code section 1031 tax - deferred exchange of the Property, Seller has the right to engage an accommodator to fulfill Seller's obligations hereunder; in which case Purchaser shall cooperate to accomplish such exchange provided each of the following conditions are satisfied: (i) Purchaser shall, in such cooperation, incur no cost, liability or obligation for consideration (or otherwise) other than the costs and consideration called for in this Agreement; and (ii) the Closing shall not be delayed or prevented. (r) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations set forth in this Agreement, including without limitation, the Due Diligence Period, the deadline for Closing, 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. (s) 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. 22 SELLER: David Comartin ai I� eow,4k Robe t Comartin [SIGNATURES CONTINUED ON FOLLOWING PAGE] ?3 PURCHASER: City of Natio City By: on Morrison Mayor Appred as to Form: By: ACCEPTANCE This is to certify that the interest(s) in real property conveyed by this instrument to the City of National City, are hereby accepted by the undersigned officer on behalf of the City of National City, pursuant to authority conferred by resolution of the City of National City, Resolution No. 2013-129, adopted on August 20, 2013, and the grantee consents to recordation thereof by its duly authorized officer. City of Natio City By: on Morrison, Mayor Appre. as to Form: Bv: City At itua Silva Dated: August 20, 2013 EXHIBIT "A" PROPERTY LEGAL DESCRIPTION Real property in the City of National City, County of San Diego, State of California, described as follows: PARCEL 1: THAT CERTAIN PARCEL OF LAND SITUATE IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF LOTS 1 TO 10, INCLUSIVE, IN BLOCK 175 OF NATIONAL CITY ACCORDING TO MAP THEREOF NO, 348 FILED OCTOBER 2, 1882, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AND A PORTION OF THE SOUTHEASTERLY HALF OF THE CLOSED PORTION OF 17TH STREET ABUTTING UPON SAID LOT 1, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF SA1D LOT 10 IN BLOCK 175, SAID CORNER BEING IN THE NORTHWESTERLY LINE OF 18TH STREET AS SHOWN ON SAID MAP; THENCE SOUTHWESTERLY ALONG THE SOUTHEASTERLY LINE OF SAID LOT 10, A DISTANCE OF 42.00 FEET TO A LINE PARALLEL WITH AND DISTANT 17.00 FEET NORTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTER LINE OF SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY'S MAIN TRACT (SAN DIEGO-SAN YSIDRO); THENCE NORTHWESTERLY ALONG SAID PARALLEL LINE. 290.00 FEET TO THE CENTER LINE OF' SAID 17TH STREET; THENCE NORTHEASTERLY ALONG SAID CENTER LINE, 48.00 FEET TO THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF SAID LOT I IN BLOCK 175; THENCE SOUTHEASTERLY ALONG SAID PROLONGATION AND THE NORTHEASTERLY LINE OF SAID LOTS 1 TO 10, A DISTANCE OF 290.00 FEET TO THE POINT OF BEGINNING. TOGETHER WITH THAT PORTION OF THE SOUTHWESTERLY 1/2 OF THE ALLEY ADJOINING SAID LOTS 6 THROUGH 10 ON THE NORTHEAST AS VACATED AND CLOSED TO PUBLIC USE. EXCEPT THAT PORTION OF SAID LAND LYING BELOW A DEPTH OF 500.00 FEET, MEASURED VERTICALLY, FROM THE CONTOUR OF THE SURFACE OF SAID PROPERTY; HOWEVER, GRANTOR. OR ITS SUCCESSORS AND ASSIGNS, SHALL NOT HAVE THE RIGHT FOR ANY PURPOSE WHATSOEVER TO ENTER UPON, INTO OR THROUGH THE SURFACE OF SAID PROPERTY OR ANY PART THEREOF LYING BETWEEN SAID SURFACE AND 500.00 FEET BELOW SAID SURFACE, AS EXCEPTED IN THE DEED RECORDED FEBRUARY 7, 1980. AS FILE NO. 80-044143. PARCEL 2: 25 LOTS 13, 14, 15, 18 AND 17 IN BLOCK 115 OF NATIONAL CITY, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 2, 1882. EXCEPTING FROM SAID LOT 13, THE SOUTHERLY 20 FEET THEREOF, TOGETHER WITH THAT PORTION OP THE NORTHEASTERLY 1/2 OF THE ALLEY ADJOINING SAID LOTS 14 THROUGH 17 AND THE REMAINDER PORTION OF LOT 13 ON THE SOUTHWEST AS VACATED AND CLOSED TO PUBLIC USE. PARCEL 3: LOTS 18 AND 19 IN BLOCK 175 OF NATIONAL CITY, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. APN: 559-086-13-00, 559-086-12-00, 559-086-05-00, and 559-086-03-00 26 EXHIBIT "B" GRANT DEED WHEN RECORDED MAIL TO: MAIL TAX STATEMENTS TO: SPACE AROVE THIS LINE FOR RECORDER'S USE GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, do hereby GRANT to [ ), organized under the laws of the State of [ 1, the real property in the County of San Diego, State of California, described on Exhibit "A" attached hereto and incorporated herein by this reference. David Comartin Robert Comartin Dated ,2013 Dated , 2013 27 JOINT ESCROW INSTRUCTIONS (1726 Wilson Avenue, National City, California 91950) August 22, 2013 TO: Carla Burchard Julie Albers Stewart Title Commercial Escrow Team 5740 Fleet Street, Suite 100 Carlsbad, CA 92008 Your Order No. 01180-50483 1. Opening of Escrow. The City of National City ("Purchaser") and David Comartin and Robert Comartin (collectively, the "Seller") have opened the above -referenced escrow ("Escrow") with you ("Escrow Agent") and hereby authorize and instruct Escrow Agent as set forth herein, with respect to that certain real property with the address of 1726 Wilson Avenue, National City, California ("Property"). In the event any date, deadline or due date set forth in these Joint Escrow Instructions or the Purchase and Sale Agreement, as defined below, 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. Any capitalized term that is not defined in these Joint Escrow Instructions shall have the meaning set forth in the Purchase and Sale Agreement. 2. Deposit of Documents. (a) Deliveries Now. Enclosed herewith is a copy of the fully -executed Purchase and Sale Agreement dated as of August 20, 2013 ("Purchase and Sale Agreement"), between the Seller and Purchaser. (b) Deliveries Prior to Closing. In the event all conditions to Closing are satisfied, then not less than one (1) business day prior to Closing, the fully -executed, original grant deed conveying the Property in fee simple from Seller to the Purchaser shall be delivered to Escrow Agent. 3. Deposit and Funding. The total aggregate purchase price to be paid by the Purchaser for all of the Property is One Million Six Hundred Fifty Thousand and No/100 Dollars ($1,650,000.00) ("Purchase Price"). The Purchase Price shall be payable by Purchaser, as set forth in this Section 3. (a) Concurrently with the delivery of these Joint Escrow Instructions to you, the Purchaser is depositing into Escrow the amount of Five Thousand and No/100 Dollars ($5,000.00) ("Deposit"). (b) In the event all conditions to Closing set forth in Sections 5 and 6 of the Purchase and Sale Agreement are satisfied, then not less than one (1) business day prior to the Closing Date, the Purchaser shall cause funds to be wired to the Escrow Agent in an amount equal to the Purchase 1 Price, minus the Deposit, plus or minus any adjustments for prorations and expenses required under these Joint Escrow Instructions. 4. Conditions to Closing. Escrow Agent may close the Escrow as set forth in Section 6 of these Joint Escrow Instructions, when, and only when all conditions to Closing set forth in Sections 5 and 6 of the Purchase and Sale Agreement are satisfied, and: (a) Escrow Agent has delivered to the Seller and Purchaser true and complete copies of all of the escrow instructions that Escrow Agent has received all other parties to the above -referenced escrow, including any amendments or supplemental instructions, and any assignments or demands that have been deposited with or delivered to Escrow Agent in connection with the escrow. (b) Escrow Agent is prepared and obligated to issue in Purchaser's favor, upon the recordation of the Grant Deed, a standard form ALTA Owner's Policy of Title Insurance with liability equal to the amount of the Purchase Price showing title to the Property vested in the Purchaser, subject and subordinate only to the (i) the printed exceptions and exclusions in the Title Policy; (ii) the exceptions shown on Schedule B of that certain Preliminary Report dated May 30, 2013, issued by Stewart Title of California, Inc., Order No. 01180-50483, except for that certain Deed of Trust shown as Exception No. 13 thereon, the community property rights of the Seller's spouses shown as Exception No. 14 thereon, and that certain easement recorded on August 8, 2013, as Document No. 2013-0497763; (iii) real property taxes and assessments which are a lien but not yet payable; and (iv) all applicable building, zoning and use restrictions and/or regulations of any municipality, township, county or state. 5. Prorations and Apportionments. (a) Revenues and Expenses. All revenues and all expenses of the Property shall be prorated and apportioned as of 12:01 a.m. on the closing date, so that Seller shall bear all expenses with respect to the Property and shall have the benefit of all income with respect to the Property through and including the period preceding the closing date. Any revenue or expense amount which cannot be ascertained with certainty as of the closing date shall be the subject of a final proration thirty (30) days after the closing date or as soon thereafter as the precise amounts can be ascertained. The Seller and Purchaser shall deliver a statement setting forth such agreed prorations to Escrow Agent. (b) Property Taxes. The Property shall become exempt from taxes upon ownership of the Property by Purchaser. (c) Title Insurance and Related Costs. Escrow Agent shall provide the ALTA Owner's Policy of Title Insurance described in Section 4(b), above, to the Purchaser. The Seller shall pay the cost of a CLTA Owner's Policy of Title Insurance and 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 Title Insurance. 2 (d) Payment of Taxes. The Seller shall pay all taxes, including, but not limited to, sales tax or transfer tax imposed upon the conveyance of the Property to Purchaser, if any. Purchaser and Seller anticipate that no documentary or other local transfer tax will be imposed upon the sale of the Property to Purchaser, because such a sale to Purchaser is exempt from transfer tax, however, Purchaser makes no representation to Seller that such exemption will be obtained. Purchaser shall use its best efforts to assist Seller in achieving that result. If there is a transfer tax, the Seller shall pay the same. (e) Escrow Fees. Any Escrow fees charged by the Escrow Agent for escrow services shall be paid by one-half (1/2) by the Seller and one-half (1/2) by the Purchaser. (f) Legal and Related Fees. Each party shall pay its own legal fees. 6. Procedure for Closing. Once all of the conditions set forth in Section 4, above, have been satisfied, Escrow Agent shall close the Escrow as set forth in this Section 6, by: (a) Recording the Grant Deed. (b) Issuing the ALTA Owner's Policy of Title Insurance described in Section 4(b), above, to the Purchaser. (c) Prorating the taxes, costs and expenses as provided in Section 5(a) of these Joint Escrow Instructions. (d) Disbursing to the Seller the Purchase Price, adjusted for any applicable fees, costs and prorations. (e) Preparing and delivering to the Seller and the Purchaser signed copies of all Escrow Agent's closing statements showing all receipts and disbursements of the Escrow. 7. Delivery of Instruments and Documents. (a) To Seller. All instruments and documents that are to be delivered by Escrow Agent to the Seller shall be personally delivered or mailed to the Seller at: David Comartin and Robert Comartin 2100 D Northshore Drive Chula Vista, CA 91913 (b) To Purchaser. All instruments and documents that are to be delivered by Escrow Agent to Purchaser shall be personally delivered or mailed to Purchaser at: c/o Christensen & Spath LLP 550 West C Street, Suite 1660 San Diego, CA 92101 3 Attn.: Walter F. Spath III 8. Sole Instructions; Amendment. These Joint Escrow Instructions constitute the complete and only escrow instructions of the Seller and the Purchaser and shall revoke and supersede any prior oral or written instructions Escrow Agent may have received from the Seller or the Purchaser. The Seller and the Purchaser may revoke, cancel, waive, amend, supplement or permit deviations from, any term or condition of these Joint Escrow Instructions in writing or by email, provided that the Seller and the Purchaser consent to the same. Any purported oral revocation, cancellation, waiver, amendment, supplement or deviation of these Joint Escrow Instructions, shall be ineffective and invalid. SELLER: David Comartin Robert Comartin PURCHASER: City of National City By: on Morrison, Mayor Ap oved as to Form: By: C Cit a Silva 4 Stewart tale To Date Escrow Officer Escrow No. Property Address : Carla Burchard Escrow Officer Stewart Title of California, Inc. August 23, 2013 Carla Burchard 01180-50483 1728 Wilson Avenue, National City, CA Stewart Title of California, Inc, 5740 Fleet Street, Ste 100 Carlsbad, CA 92008 Phone (760) 602-9293 Fax (619)923-2921 churchard@stewart.com CONTRACT AGREEMENT ESCROW INSTRUCTIONS Stewart Vile orCentornle, Inc. 13 LICENSED BY THE STATE OF CALIFORNIA UNDER THE DEPARTMENT OF INSURANCE LICENSE NO.388 The undersigned has caused to be handed you a duly executed copy of that certain Joint Escrow Instructions dated August 22, 2013, hereinafter referred to as the "Agreement" by and between, Robert T Comartin and David P Comartin as Seller and City of National City as Buyer. On or before, August 29, 2013, each party will hand you any instructions, documents and/or funds necessary on his or her behalf to enable you to comply with said "Agreement". Said Agreement shall constitute escrow instructions which Stewart Title of California, (no., as Escrow Holder, is Instructed to use, along with any additional mutual instructions required to close this transaction. Escrow Holder is only to be concerned with the conditions and/or payments and/or documents commonly under the control of or made or delivered through an Escrow Holder. Escrow Holder Is authorized and instructed to obtain beneficiary statements and/or demands on any matter of record required to place title in the condition called for pursuant to these Instructions. Escrow Holder Is authorized and instructed to charge buyer and seller accounts, at the close of escrow, with their respective costs as provided for In the °Agreement" and as per their estimated closing statement to be approved prior to the close of escrow. Each party signing these instructions has read, understands, and accepts the General Provisions attached hereto as Exhibit Selier(s): Robert T Comartin David P Comartin Escrow No.: 01180-50483 Contract Agrmnt Esc Inst BP SCE Ruyer(s): City of Nafi By: Pri Title.Executive Rau ston Director THIS IS RI -RED TO BE TRUE A VJ ACCUR.41 c COPY OF 1 HE ORIGINAL DOCUMENT STEWANT TITLE OF CALIFON NIA BY KRlS7EN RtJrF IG ---- Page 1 of s stewart a,[ t titI O To Date Escrow Officer . Escrow No. Property Address : Carla Burchard Escrow officer Stewart Title of California, Inc. August 23, 2013 Carla Burchard 01180-50483 1726 Wilson Avenue, National City, CA Stewart Tide of CalNomra, Inc. 5740 Fleet Street, Ste 100 Carlsbad. CA 92008 Phone (760) 602-9293 Fax (619) 923-2921 cburchardrgstewartcom CONTRACT AGREEMENT ESCROW INSTRUCTIONS SttwartTltIe ofcantorste, Inc. IS LICENSED BY THE STATE OF CALIFORNIA UNDER THE DEPARTMENT OF INSURANCE LICENSE: NO. S88 The undersigned has caused to be handed you a duly executed copy of that certain Joint Escrow Instructions dated August 22, 2013, hereinafter referred to as the "Agreement" by and between, RobertT Comartin and David P Comartin as Seller and City of National City as Buyer. On or before, August 29, 2013, each party will hand you any instructions, documents and/or funds necessary on his or her behalf to enable you to comply with said "Agreement?'. Said `Agreement" shall constitute escrow instructions which Stewart Title of California, Inc., as Escrow Holder, is instructed to use, along with any additional mutual instructions required to close this transaction. Escrow Holder is only to be concerned with the conditions and/or payments and/or documents commonly under the control of or made or delivered through an Escrow Holder. Escrow Holder is authorized and instructed to obtain beneficiary statements and/ar demands on any matter of record required to place title In the condition called for pursuant to these instructions. Escrow Holder is authorized and instructed to charge buyer and seller accounts, at the dose of escrow, with their respective costs as provided for In the "Agreement" and es per their estimated dosing statement to be approved prior to the close of escrow. Each party signing these instructions has read, understands, and accepts the General Provisions attached hereto as Exhibit "1 ". Selle :10, l G3a� Buyers): City of National City Robe i 'T Comartin By: Print Name David P Comartin Approved as to Form: By: Claudia Gacitua Silva, City Attorney THIS IS CERrIFED TO SE TRUE AVE) ACCUHAIc COPY OF THE 0RIGJNAi. DOCUMENT STEwART TITLE OF'C-A-IFDAN(A 9y Escrow No.: 01180-50483 Contrail Agmmt Esc rust BP SCE rclllsri_ry aurwlo .� Page1 of6 EXHIBIT 1 GENERAL PROVISIONS 1. DEPOSIT OF FUNDS, OPPORTUNITY TO EARN INTEREST AND PRORATIONS: California Insurance Code Section 12413.1 regulates the disbursement of escrow and sub -escrow funds by title companies. The law requires that funds be deposited In the title company escrow account and available for withdrawal prior to disbursement Funds received via wire transfer may be disbursed upon receipt. Funds received via cashier's checks or teller checks drawn on a California Bank inlay be disbursed on the next business day after the day of deposit If funds are received by any other means, recording and/or disbursement may be delayed and Escrow Holder shall not be responsible for accruals of interest or other charges resulting from compliance with the disbursement restrictions imposed by state law. All funds received in this escrow shall be deposited with other escrow funds into one or more non -interest bearing escrow accounts at a financia€ institution selected by Escrow Holder. Escrow Holder shall not be responsible and shall have no liability for any delay In closing this escrow if the funds deposited are not available for immediate withdrawal as a matter of right pursuant to California Insurance Code Section 12413.1 et seq. Funds deposited in the financial institution are insured only to the limit provided by the Federal Deposit Insurance Corporation. Escrow Holder shall not be held responsible for loss of any amount over the FDIC insured limit due to bank closure or for lost interest due to wire delays caused by any bank or the Federal Reserve System, and recommends that all parties make themselves aware of banking regulations with regards to placement of wires. You have the opportunity to earn Interest on the funds you deposit with us by instructing us to deposit your funds In an interest bearing account (You do not have an opportunity to earn interest on any funds deposited by a lender) If you elect to earn interest, there is an additional fee in the amount of $50.00 for establishing and maintaining such an account. it Is important that you consider this cost as it may exceed the actual interest you earn. Should you not elect to eam interest on your deposit, your funds will be deposited in our General Escrow Account at a financial institution insured by the FDiC. This is a non -interest bearing account; however, Stewart Title of California may receive certain financial benefits from that financial institution because of the General Escrow Account and its on -going banking relationship. These benefits may include, without limitation, credits allowed by such financial institution on loans to and earnings on investments made with the proceeds of such loans, accounting, reporting and other services and products of such financial institution. We do not have an obligation to account to you In any manner for the value of, or to compensate any party for, any benefit received by Stewart Title of California. Any such benefits shall be deemed additional compensation of for its services In connection with the escrow. Disbursements from this escrow will be made by check of Escrow Holder. Unless otherwise instructed in writing, checks will be issued jointly to the parties designated as payees. Signatures (including initials) of parties or their duly authorised agents on any documents/instrument and/or Instruction pertaining to this escrow indicate approval of same. if any check submlted is dishonored upon presentment for payment, you are authorized to notify all parties and/or their respective agents of such nonpayment All proration and/or adjustments called for in this escrow shall be made on the basis of a 30 day' month or 360 day year, unless otherwise instructed in writing. Proration of real property taxes including supplemental real property taxes, if appropriate, will be made on the basis of the latest available figures provided to Escrow Haider. The phrase close of escrow (COE) as used herein means the date on which instruments/documents are recorded unless otherwise instructed in writing. 2. TiME AND WRITTEN NOTIFICATION: Time is of the essence. In the event the conditions of this escrow have not been complied with at the expiration of the time provided for herein you are permitted, though not required, to complete the same at the earliest possible date thereafter. No notice, demand or change of instructions shall be of any effect to alter, amend, supplement, or vary the terms of these instructions unless given in writing and signed by all parties affected thereby, i'' ` ru BE 7RUE A^aO ACOUl 7c ",A DOCUMENT 3. AUTHORIZATION TO DELIVER: If It is necessary, proper or convenient fgt tf�ielfs#3fztrl of this i3Y �E • Escrow No.:0i1805048S Kr?1ST�N Rl;r t78gB�of6 Contract Agmurt Esc inst BP SCE escrow, Escrow Holder is authorized to deposit or have deposited funds or documents, or both, handed to Escrow Holder under these escrow instructions with any duly authorized sub -Escrow Holder, Including, but not limited to, any bank, trust company, title insurance company, title company, savings and loan association, or licensed Escrow Holder, at or before close of escrow in connection with closing this escrow. My such deposit shati be deemed a deposit under the meaning of these escrow instructions. 4. AUTHORIZATION TO FURNISH COPIES: Furnishing copies of any/all escrow instructions, amendments, supplements, preliminary reports, notices of cancellation and closing statements in this escrow, at anytime, to all entitled parties thereto including but not limited to the real estate broker(s), [enders and/or attomey's representing parties to this escrow is authorized. Party (les) shall receive only those documents to which the nequestor is entitled. My further documentation may be subject to written approval of those parties involved and/or subpoena as deemed appropriate by Escrow Holder. Escrow Holder shall not incur any liability to the parties for delivery of said copies. 5. DEMANDS AND APPLICATION OF PAYOFF FUNDS: Escrow holder is authorized to: 1) Order demands for, and pay at the close of escrow, any encumbrances of record necessary to place title in the condition railed for. 2) Request the lender of any revolving line or equity line of credit to immediately close said account 3) To charge Interest through the date funds are to be received by the existing lien holders pursuant to their demand. Should a check or wire be deemed unacceptable by lenders, creditors, lien holders or beneficiaries of Deeds of Trust, Escrow Holder is authorized to act on our behalf in requesting the funds, as well as any balance in an impound account, be applied towards the balance due. 6. FACSIMILE AND ELECTRONIC MAIL: All parties acknowledge that documents and instructions may be transmitted via facsimile (FAX) and/or electronic mail (e-mail). in the event the parties of this transaction, their agents, or assigns, utilize facsimile (FAX) and/or electronic mail (e-mail) transmitted Instructions, Escrow Holder may rely and act upon such instructions in the same manner as If original signed instructions were in the possession of Escrow Holder. All parties acknowledge that documents and instructions may be transmitted via facsimile (FAX) and/or electronic mail (e-mail) the cost of which, if any, will be charged to the applicable principal's account at the close of escrow. 7. ELECTRONIC SIGNATURE: All parties acknowledge and agree that pursuant to the California Uniform Electronic Transactions Act, California Civil Code Section 1633.1 et. seq., signatures provided in a transaction may be affixed electronically. However, the parties understand and acknowledge that if California requires, an original signature may be necessary on documents that are to be recorded and/or notarized 8. CHANGE iN OWNERSHIP REPORT: Ail parties are aware that a 'Preliminary Change In Ownership Form' is to be filed with the office of the County Assessor upon recordation of all transfer documents involving real property. As an accommodation only, Escrow Holder shall provide necessary forms to the purchaser herein and in the event the completed form is deposited into escrow prior to close, Escrow Holder shall deliver same to County Assessor conourrently with recordation of the documents being recorded in this transaction. Any questions should be directed to the County Assessor for the specific County that subject property is located. 9. POUCY OF TITLE INSURANCE: Notwithstanding the provisions of the purchase agreement, in the event the title insurance policy requested is unavailable or does not meet the underwriting standards of the tulle insurer, buyer instructs escrow holder to cause to be issued the CLTA Standard Coverage Polley orALTA Owners Policy with Western Regional exceptions. 10. PERSONAL PROPERTY TAX: Escrow Holder Is not responsible for any personal property tax which may be assessed to any former owner of the property that is the subject of this escrow, nor for the corporation or license tax of any corporation as a former owner. No examination or insurance as to the amount of payment of personal taxes is required unless specifically requested. 11. COMPLETION OF NOTES AND USURY: Escrow Holder is not to be concerned with any question of usury in any loan or encumbrance involved In the processing of this escrow and Is hereby released of any Iiabiiity or responsibility therefore. The insertion of dates on original executed promissory notes, pursuant to mutually executed Instructions, is hereby authorized. :,�• � of 'N€ YI- D'Z'vt NT DDURAT4 Escrow No.: 01180-50483 . _ , Page 3 of 6 ContractAgrmnt Esc lost BP SCE Escrow No.: 011S0-0483 Contract Agnnot Eso lost BP SCE 12. STATFJFEDERAL CODE NOTIFICATION: According to Federal law, the Seller(s), when applicable, will be required to complete a 1099-S Worksheet that will be utilized to generate a 1099 reporting statement to the Internal Revenue Service. You are released from and shall have no liability, obligations or responsibility with respect to (a) withholding of funds pursuant to Section 1445 of the Internal Revenue Code of 1984, 'Foreign Investors in Real Property Act' (FIRPTA), as amended (b) advising of requirements, (c) determining whether the seller is a foreign person, under such Section, or (d) obtaining a non foreign affidavit or other exemption from withholding under such Section nor otherwise making any inquiry concerning compliance with such Section by any party to this transaction. In accordance with section 18662 and 18668 of the revenue and taxation code, a buyer may be required • to withhold any amount equal to 3-1/3 percent of the sales price in the case of a disposition of California real property interest, by either. 1) A seller who is an individual or disbursement instructions authorized the proceeds to be sent to a financial intermediary of the seller, or 2) A corporate seller that has no permanent place of business in California For failure to withhold, the buyer may become subject to penalty equal to the greatest of 10 percent of the amount required to be withheld or five hundred dollars ($500.00). However, notwithstanding any other provision included in the California statutes referenced above, no buyer will be required to withhold any amount or be subject to penalty for failure to withhold if: 1) The sales price of the California real property conveyed does not exceed one hundred thousand dollars ($100,000.00), or 2) The seller executes a written certificate, under the penalty of perjury, certifying that the,aelier is a corporation with a permanent place of business in California, or 3) The seller, who is an individual, executes a written certificate under the penalty of perjury, of any of the following: A) That the California real property being conveyed is the seller's principal residence (within the meaning of section 121 of the Internal revenue code). B) That the California real property being conveyed is or will be exchanged for property of like kind (within the meaning of section 1031 of the internal revenue code), but only to the extent of the amount of gain riot required to be recognized for California income fax purposes. C) That the California real property has been compulsorily or Involuntarily converted (within the meaning of section 1033 of the internal revenue code) and that the seller intends to acquire property similar or related in service or use so as to be eligible for no recognition of gain for California income tax purposes. D) That the California real property transaction will result in a loss for California income tax purposes. The seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding requirement 13. CANCELLATION PROVISIONS: No Instructions for cancellation of this escrow shall be recognized unless they are in writing and deposited with the Escrow Haider. My principal instructing you to cancel this escrow shall file a Notice of Cancellation with said office. Escrow Holder shall thereafter mail one copy of such notice to each of the other parties at their mailing address set forth in your file or in care of the agent(s) representing said parties unless written objection to the cancellation is filed in your office by a principal within ten (10) calendar days after day of such mailing, you are authorized to comply with such notice and rttum all papers and funds held in your file less your cancellation fees and other cost incurred in connection with this escrow. Stewart Title of California, Inc, may, at its option, require concurrent instruction from all parties prior to cancellation and/or release pf,any funds on deposit in this escrow. If written objection is tiled, you are authorized to hold all monies r7is# r ents in your file and take no further action artless otherwise directed by principal s mutual weft*" " " c5 §€c1r final order of a court 8 :etgTTIT' °CL'fl�p�r „ '. } L4. ` aeZACr,i,.,, Page dof6 L'''?ii7fy of competent jurisdiction. You have the absolute right, at your election, to file an action in interpleader requiting the parties to answer and litigate their several claims and rights amongst themselves. Any such action must comply with the requisite interpleader statues of the State of California in this regard. In the event this escrow is cancelled, any foes and charges due Stewart Title, including cancellation fees and any expenditures incurred or authorized shall be paid from funds on deposit unless otherwise specifically agreed to or determined by a court of competent jurisdiction. Upon payment thereof, return document and monies to the respective parties depositing same, or as order by the court and void any executed instructions, if this is a sale escrow you may return lenders papers andlor funds upon lender's demands. 14. NO ACTIVITY: If there is no written activity by a principal to this escrow within any six-month period after the time limit date as set forth, in the escrow instructions or written extension thereof, Escrow Holder's obligation shall terminate at Escrow Holder's option. All documents, monies or other items deposited with Escrow Holder shall be returned to the respective parties entitled thereto, less fees and charges herein provided. 15. DISCRETIONARY TERMINATION: At the sole discretion of Escrow Holder, Escrow Holder may elect to terminate its escrow relationship with the parties to the escrow. Funds, less costs incurred, and documents will be returned to parties depositing same without approval of same. 16. CONFLICTING DEMANDSl1NTERPLEADER: No notice, demand or change of Instructions shalt be of any effect in this escrow unless given in writing by all parties affected thereby. If conflicting demands are made in connection with this escrow, Escrow Holder shall have the absolute right to either withhold and stop all proceedings, or file suit in the interpleader and obtain an order from the court requiring the parties to interplead their several claims and rights amongst themselves. 17. ACTION IN 1NTERPLEADER OR OTHER COURT OR LEGAL PROCEEDINGS: The parties hereto expressly agree that Escrow Holder has the absolute right, at its election, to file an action In interpleader requiring the parties to answer and litigate their several claims and rights among themselves; and Escrow Holder is authorized to deposit with the clerk of the court, all documents, instruments and funds held in escrow. In the event such action Is tiled, the parties jointly and severalty agree to pay Escrow Holder's cancellation charges and costs, expenses and reasonable attomey's fees it is required to expend or incur in such interpleader action, the amount thereof to be fixed and judgment therefore to be rendered by the court. Upon filing of such action, Escrow Holder is thereupon fully released and discharged from all obligations to further perform any duties or obligations otherwise imposed by the terms of this escrow. 18. LIMITATION ON DUTY TO INFORM: It is agreed by the parties hereto, that so far as Escrow Holder's rights and liabilities are involved, the transaction is an escrow and not any other legal relation and Stewart Me of California is an Escrow Haider only on the within expressed terms, and Escrow Holder shall have no responsibility for notifying any of the parties of this escrow of any sate, resale, loan, exchange or other transaction involving any property herein described or of the profit realized by any person, firm or corporation (broker, agent and parties to this andior other escrow included), in connection therewith, regardless of the fact that such transaction(s) may be handled concurrently by Escrow Holder in this escrow or in another escrow. �� R�lfjFU s?EsR�Tlrq "QUtA1u� 3y Jj LF pfi� ti1FN* Escrow No.: 01180-60483 Pape 6 of 6 Conrad Agrmnt Esc lost BP SCE 19. DISCLOSURE OF CONDITIONS PRECEDENT: The parties to this escrow, by execution thereof, acknowledge their duty to Escrow Holder of full disclosure of those matters, which shall affect the transfer of subject property and conditions of title (inclusive of real personal and intangible property, which matters may result in a lien against subject property). Disclosure shall include, but not limited to: water, stock, owners association er maintenance dues, contractual obligations not automatically terminated upon sale, notes, deeds of trust and vendors liens. 20. ENVIRONMENTAL DISCLOSURE: Notwithstanding any actual or other knowledge on the part of Escrow Holder, the parties agree to release Escrow Holder from any and all liability of any kind or nature and to Indemnify Escrow Holder of any loss, damages, claims, Judgments or costs of any kind or nature resulting from or related to the release or discharge of hazardous or toxic wastes on the subject property whether it occurred in the past or present or may occur in the future which release or discharge is in violation of law, in excess of any state and federal standards, permit requirements and/or disclosure requirements existing at this time or which may exist at a future time. The parties represent that they made their own assessment of the condition of the subject property and have not relied on any of your representations in making the assessment . The pates are advised to seek independent legal and technical environmental expert advice in assessing the risks associated with potential hazardous or toxic wastes. 21. CAPTIONS AND COUNTERPARTS: Captions in these escrow instructions are inserted for convenience of reference only and do not define, describe or limit the scope of the intent of these Instructions or any of the terms hereof These instructions may be executed in counterparts, each of which so executed shall, Irrespective of the date' of its execution and delivery, be deemed an original, and said counterparts together shall constitute one and the same instrument. 22. BINDING: All terms of these general provisions and escrow instructions shall be binding upon, inure to the benefit and be enforceable by the parties hereto and their respective legal representatives. successors and assigns, and whenever the context so requires the masculine gender includes the feminine and neuter, and the singular number includes the plural. In the event any term, covenant, condition, provision or agreement herein contained is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement herein contained. 23. DESTRUCTION OF RECORDS: Escrow Holder Is authorized to destroy or otherwise dispose of any and all documents, papers, instructions, correspondence and other materials pertaining to thls escrow at the expiration of five (5) years from the close of escrow or cancellation thereof. 24. LEGAL ADVICE: The parties acknowledge and understand that Escrow Holder is not authorized to practice law, nor give financial advice. The parties are hereby advised to seek legal and financial counsel and advice concerning the effect of these escrow instructions. The parties acknowledge that no representations are made by Escrow Holder about the legal sufficiency, legal consequences, financial effect or tax consequences of the within escrow instructions. Escrow No.: 01180-50483 Page. 6 of 6 ContractAermnt Esc Inst BP SCE Esther Clemente From: Julie Albers (Croteau) <jcroteau@stewart.com> Sent: Friday, September 13, 2013 4:01 PM To: Carlos Aguirre Cc: Mike Dalla; Esther Clemente Subject: RE: Request for certified copies of escrow instructions and purchase contract for 1726 Wilson Ave Attachments: 1726 Wilson Ave Purchase and Sale Agmt.pdf; carlsbadscanl@stewart.com_20130913_ 155436.pdf Carols, Here is the Certified escrow instructions and Purchase agreement. Thank You, Julie Albers ( Croteau) Carla Burchard Stewart Title of California, Inc. Commercial Escrow Team 5740 Fleet Street #100 Carlsbad, CA 92008 Direct : 760-448-1622 P: 760-602-9293 X 4014 Efax: 619-923-2921 jcroteau stewart.com cburchard(&,,stewart. com From: Carlos Aguirre [mailto:caguirre@nationalcityca.gov] Sent: Wednesday, September 11, 2013 11:27 AM To: Julie Albers (Croteau) Cc: Mike Dalla; Esther Clemente Subject: Request for certified copies of escrow instructions and purchase contract for 1726 Wilson Ave Hello Julie, Thank you for all your help! The City Clerk's office needs the following information on 1726 Wilson Ave: 1. Certified Copy of the Joint Escrow Instructions provided by Walter Spath signed by the Seller. 2. Certified Copy of the purchase contract (since the one and only original was provided to Escrow). You can forward them to me and I will make sure the City Clerk gets the certified copies. Thanks, 1 RESOLUTION NO. 2013 — 130 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE AGREEMENT WITH ROBERT T. COMARTIN AND DAVID P. COMARTIN FOR THE PURCHASE OF PROPERTY LOCATED AT 1726 WILSON AVENUE FOR THE TOTAL PURCHASE PRICE OF $1,650,000 FOR THE RELOCATION OF THE NATIONAL CITY PUBLIC WORKS FACILITIES FROM 2100 HOOVER AVENUE IN THE CITY OF NATIONAL CITY ALLOWING FOR THE DEVELOPMENT OF 201 AFFORDABLE RENTAL HOUSING UNITS AS PHASE I AND II OF THE WESTSIDE IN -FILL TRANSIT ORIENTED DEVELOPMENT PROJECT WHEREAS, the Successor Agency to the Community Development Commission as the National City Redevelopment Agency (Successor Agency) is subject to the enforceable obligation commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD) Development and Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek Housing Partners, LP (Developer); and WHEREAS, as part of the WI-TOD DDA, National City Public Works ("PW") operations at 2100 Hoover Avenue will need to be relocated to other sites in order for the Successor Agency to complete environmental remediation and develop 201 affordable housing units at the Hoover property, as required by the DDA; and WHEREAS, the City's relocation plans for PW have accommodated for a substantial part of PW operations within existing City facilities; and WHEREAS the City still needs to secure a facility that can house the following PW functions: streets/sewer, vehicle maintenance and storage, and office space; and WHEREAS, the City has reviewed options for relocation but alternatives that have been considered are not readily available or do not fully satisfy PW's operational requirements and do not fall within the timeline for implementing the WI-TOD DDA development; and WHEREAS, the City has entered into a letter of intent to purchase a 1.17 acre site that provides 6430 sq. ft. of useable building area including office space and a repair shop with two large entry bays commonly known as 1726 Wilson Avenue in the City of National City (the Property); and WHEREAS, the owners of the 1726 Wilson Avenue site are willing to sell their property at a negotiated price of $1,650,000; and WHEREAS, all actions required by all applicable law with respect to the proposed Purchase and Sale Agreement have been taken in an appropriate and timely manner; and WHEREAS, the City Council has duly considered all terms and conditions of the proposed Purchase and Sale Agreement and believes that the acquisition of the Property is in the best interests of the City of National City and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local law requirements. Resolution No. 2013 —130 Page Two NOW, THEREFORE, BE IT RESOLVED that the City Council authorizes the Mayor to execute the Purchase and Sale Agreement between the City of National City and Robert T. Comartin and David P. Comartin for the purchase of the Property in the City of National City for a total purchase price of $1,650,000. Said Purchase and Sale Agreement is on file with the City Clerk. BE IT FURTHER RESOLVED that the City Council authorizes City Manager or her designee to execute any other documents necessary to fulfill the terms of the Purchase and Sale Agreement, including escrow documents. BE IT FURTHER RESOLVED that the City Council determines the purchase of the Property is exempt under CEQA, pursuant to section 15301 of the Guidelines, because the purchase and use of the Property would involve negligible or no expansion of the existing use of the structures and/or facilities, thus it is categorically exempt. PASSED and ADOPTED this 20th day of August, rison, Mayor ATTEST: Mic ael R. Dalla, ity Clerk ROVE I_ S TO FORM: CIGacit Silva City Attorney 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 iation4 CI rk of the City of City al City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2013-130 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. 20 ITEM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Purchase and Sale Agreement with Robert T. Comartin and David P. Comartin for the purchase of property located at 1726 Wilson Avenue for the total purchase price of $1,650,000 for the relocation of the National City Public Works facilities from 2100 Hoover Avenue in the City of National City allowing for the development of 201 affordable rental housing units as Phase I and II of the Westside In -fill Transit Oriented Development Project. (; PREPARED BY: ark-s Aguirre Comm Ilcv. Srcr IIC / DEPARTMENT: Housing, Grants,& , Asset Management APPROVED�� PHONE: 619.336.4391 EXPLANATION: Please see attached background report and explanation. FINANCIAL STATEMENT: APPROVED: `-'Z1� �,;, f;�j- Finance ACCOUNT NO. APPROVED: MIS A State Catalyst Grant will reimburse up to $500,000 of the purchase cost. The City will also allocate part of approximately $2.08 million in net proceeds from the sale of land at the WI-TOD development. ENVIRONMENTAL REVIEW: Exempt from CEQA environmental review under CEQA Guidelines Sec. 15301 Existing Facilities ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: •1. Background Report and Explanation 2. Purchase and Sale Agreement - A t? Attachment No. 1 Background Report and Explanation The Westside Infill Transit Oriented Development (WI-TOD), also known as the Paradise Creek Affordable Housing Project, is a proposed 201-unit affordable housing development on the east side of Paradise Creek, and the expansion of Paradise Creek Educational Park on the west side of the creek. The proposed project is based on a concept that was developed through a neighborhood and stakeholder design participation process and incorporated into the Westside Specific Plan, which was adopted in 2010. The current proposed project design was developed with continuing public input and participation through stakeholder and community meetings. Development Agreement. After adoption of the Westside Specific Plan, a request for proposals was issued, and the applicant was selected to develop the site. The applicant entered into a Disposition and Development Agreement with the Community Development Commission to develop the project. The agreement is an enforceable obligation of the Successor Agency to the Community Development Commission (SA). The entire site is owned by the City; however, the housing portion of the site will be transferred to the Housing Authority. Pursuant to the Disposition and Development Agreement, the developer will be required to enter into a long-term ground lease for the housing site and will manage and operate the housing development, including resident services and programs. The Community Development Commission -Housing Authority will retain ownership of the housing site. Housing Development. The housing development side of the project would consist of two phases on the east side of Paradise Creek. The first phase would be built on approximately four acres on the southern portion of the site and would include 109 units within two buildings and a separate residential services building. The second phase would be built on approximately two acres on the northern portion of the site and would include 92 units within two buildings. The anticipated unit mix would include studios, one - bedroom, two -bedroom, and three -bedroom units on three to four levels within the four residential buildings. The residential buildings would generally be oriented along 22nd Street and Hoover Avenue and set back from Paradise Creek with open space along the creek boundary. Park Development. The park development side of the project would add nearly four acres to Paradise Creek Educational Park on the west side of the creek. Paradise Creek Housing Partners is required to construct the park improvements pursuant to the Disposition and Development Agreement. The proposed improvements would include a naturalized planting buffer along Paradise Creek, a lawn area, a community garden, a playground, a plaza, picnic tables, a pedestrian/bicycle path along the length of the creek, and tree and shrub plantings along the western edge of the park. Park ownership would be maintained by the City. Certificate of Compliance. Consistent with the Parcel Map Waiver approved by the National City Planning Commission on May 20, 2013 for the WITOD Project, the City of National City can file a Certificate of Compliance that creates new legal parcels for the 1. Attachment No. 1 development. The entire project site consisted of nine parcels and portions of adjacent rights -of -way; the Certificate of Compliance divides seven of the parcels into four parcels to allow the development of the housing on the east side of Paradise Creek and the park on the west side of the creek. The parcel map consists of 10.27 acres. Parcel 1 is 4.14 acres and would be developed with 109 units and the residential services building as Phase I of the housing project. Parcel 2 is 2.16 acres and would be developed with 92 units in Phase II. Parcel 3 is 1.33 acres and would be developed with park improvements. Proposed Parcel 4 is 2.60 acres and would delineate Paradise Creek and Paradise Creek Educational Park. The Certificate of Compliance creates developable parcels that are configured based on the proposed phasing of the WITOD project and to allow the leasing of the parcels pursuant to the Disposition and Development Agreement. Reallocation of HOME Funds. The City of National City is a Project Jurisdiction that receives an annual entitlement grant allocation of HOME Investment Partnership (HOME) Program funds from the U.S. Department of Housing and Urban Development for the preservation and development of affordable housing in National City. The City allocated $95,492 of HOME funds in Fiscal Year 2011 and $2,000,000 in Fiscal Year 2013 to Community HousingWorks on behalf of Paradise Creek Housing Partners, L.P. to fund predevelopment activities related to the development of 109 affordable housing units included in Phase I of the Westside In -fill Transit Oriented Development Project. Community HousingWorks has consented to the reallocation of said HOME funds to the Community Development Commission -Housing Authority ("CDC -HA") for the purpose of acquiring the 4.14 acre parcel (Parcel 1) of land designated for 109 newly constructed affordable rental units at the corner of 22nd and Hoover Avenue. The CDC -HA has submitted an application to the City of National City for the reallocation of a total of $2,095,492 in HOME funds for the acquisition of land and development activities eligible under the HOME program. Acquisition of Parcels 1 and 2 by the CDC- Housing Authority. The City is the current owner of Parcel 1 and 2 totaling 6.3 acres, generally bounded by 19th Street, Harding Avenue, 22nd Street, and Hoover Avenue at WITOD development site. The Successor Agency to the Community Development Commission as the National City Redevelopment Agency (SA) is subject to the enforceable obligation commonly referred to as the Westside Infill Transit Oriented Development Development and Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek Housing Partners, LP (Developer). The sale of Parcel 1 and 2 to the CDC -HA is being undertaken so that the SA can fulfill its enforceable obligations pursuant to the requirements of the WITOD DDA. The CDC -HA has accepted the affordable housing functions of the former redevelopment agency. Appraisals completed within the last 60 days indicated a value of $3.815 million for Parcel I and $3.22 million for Parcel 2 for a total value of the Property of $7.035 million. The CDC -HA intends to use $2,094,000 in HOME funds to acquire Parcel I and the CDC -HA has also requested a loan in the amount of $4,941,000 from the City in order to provide full consideration for the market value of Parcel 1 and 2. Attachment No. 1 Leaseback of Public Works Yard to the City. Parcel 1 and Parcel 2 will continue to be occupied by the National City Public Works Department, and the CDC -HA will provide a month -to -month lease agreement for $1.00 per month until the operation is relocated to allow for environmental remediation and the development of affordable housing on the site. Relocation of Public Works Yard and the Purchase of 1726 Wilson Avenue. As part of the WI-TOD DDA, National City Public Works ("PW') operations at 2100 Hoover Avenue will need to relocate to other sites in order for the Successor Agency to complete environmental remediation and develop 201 affordable housing units on Parcel 1 and Parcel 2. The City's relocation plans for PW have accommodated for a substantial part of PW operations within existing City facilities. The City still needs to secure a facility that can house the following PW functions: streets/sewer, vehicle maintenance and storage, and office space. The City reviewed options for relocation but alternatives that have been considered are not readily available or do not fully satisfy PW's operational requirements and do not fall within the timeline for implementing the WI-TOD development. The City entered into a letter of intent to purchase a 1.17 acre site which fits the needs of PW and provides 6430 sq. ft. of useable building area including office space and a repair shop with two large entry bays. The property is commonly known as 1726 Wilson Avenue in National City. The owners of the 1726 Wilson Avenue site are willing to sell their property have accepted an offer by the City to purchase the property at a negotiated price of $1,650,000. 3 Attachment No. 2 PURCHASE AND SALE AGREEMENT (1726 Wilson Avenue, National City, 91950) THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20`t' day of August, 2013 ("Effective Date") by and between David Comartin and Robert Comartin (collectively, the "Seller") and the City of National City ("Purchaser"). RECITALS A. The Seller owns the fee interest in that certain real property generally located at 1726 Wilson Avenue, National City, California 91950. legally described in Exhibit A attached hereto and made a part hereof ("Real Property"). B. 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. Provided. however, the Seller acknowledges and agrees that in order to bind Purchaser to the teens and conditions of this Agreement, this Agreement must be approved by the City of National City. 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 Real 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. The Seller shall deliver possession of the Property to Purchaser at Closing. Possession of the Property shall he delivered to Purchaser subject only to the "Title Exceptions, all as defined hereinbelow. 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. Attachment No. 2 "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. § 1 300, 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 herein, which shall not be later than the last day of the Due Diligence Period. "Closing Date" means the date on which the Closing occurs, which date shall be August 29, 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. "Due Diligence Period" means the period of time commencing on the Effective Date and ending on August 23, 2013. "Effective Date" is defined above. "Escrow" means the escrow depository and disbursement services to be performed by Escrow Agent pursuant to the provisions of this Agreement. Attachment No. 2 `'Escrow Agent" means Carla Burchard at Stewart Title Company, 5740 Fleet Street. Suite 100, Carlsbad, California 92008. "Grant Deed means a duly executed and acknowledged grant deed conveying fee simple title to the Real Property from the Seller to the Purchaser, in substantially the form attached hereto as Exhibit B and made a part hereof. "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 el seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §260I et seq.); the Toxic Substances Control Act (15 U.S.C. §9601 el 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 he put to any lawful purpose. Attachment No. 2 (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. 0'2011 et seq.. the Nuclear Waste Policy Act, 42 U.S.C. §§10101 et seq., or pursuant to the California Radiation Control Law, California Ilealth 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 Real Property; (ii) all rights, privileges and easements appurtenant to the Real Property', if any. including. without limitation, all minerals. oil, gas and other hydrocarbon substances on and under the Real Property, if any; and (iii) all development rights. air rights, and water rights if any, relating to the Real Property. 4 Attachment No. 2 "Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions in the Title Policy; (ii) the exceptions shown on Schedule B of that certain Preliminary Report dated May 30, 2013, issued by Stewart Title of California. Inc.. Order No. 01180-50483, except for that certain Deed of Trust shown as Exception No. 13 thereon and the community property rights of the Seller's spouses shown as Exception No. 14 thereon. ; (iii) real property taxes and assessments which are a lien but not yet payable; (iv) all applicable building, zoning and use restrictions and/or regulations of any municipality, township, county or state; and (v) defects that are shown on the American Land Title Association survey of the Real Property and Improvements which are approved by Purchaser in writing, or deemed approved by Purchaser, as provided in Section 4(c) below. "Property" means collectively, the Real Property and the Improvements. "Purchase Price" shall have the meaning set forth in Section 3(a) of this Agreement. "Purchaser" means the City of National City; provided, however, if the City of National City assigns its interest in this Agreement pursuant to Section 10 of this Agreement, then the term "Purchaser" shall mean such assignee. "Real Property" is defined above. "Seller" means collectively, David Comartin and Robert Comartin. "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, which Title Policy shall be obtained through Stewart Title Company. Seller shall pay the cost of the CLTA Owner's Policy of Title Insurance. Purchaser shall pay the cost of any endorsements it desires. 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 Title Insurance. 3. Purchase Price. (a) Total Purchase Price. The purchase price to be paid by the Purchaser for all of the Property shall he One Million Six Hundred Fifty Thousand and No/100 Dollars ($1.650,000.00) ("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 expiration of the Due Diligence Period, as set forth in Section 4 below, then the Deposit shall be immediately returned 5 Attachment No. 2 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 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 5 AND 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) SI-IALL SURVIVE THE "TERMINATION OF THIS AGREEMENT. eta 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 equal to the Purchase Price, minus the Deposit and any interest earned on the Deposit, and plus or minus any adjustments for prorations and expenses required under this Agreement. Attachment No. 2 (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 Period. During the Due Diligence Period, the Purchaser may determine in the Purchaser's sole and absolute discretion, whether to proceed with the purchase of the Property. During the Due Diligence Period, the Purchaser may terminate this Agreement for any reason or for no reason at all. If the Purchaser terminates this Agreement during the Due Diligence Period, then: (i) all rights and liabilities of thc Purchaser and the Seller with respect to this Agreement shall immediately terminate, except for rights and liabilities that specifically survive such termination; (ii) Escrow Agent shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser; and (iii) Escrow Agent shall return to the Seller all funds or other things deposited in Escrow by the Seller. Provided, however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (112) by the Purchaser. (a) Access to thc Property and Cooperation. During the Due Diligence Period. and during normal business hours, upon not less than twenty-four (24) hours advance notice to the Seller, Purchaser and its representatives, consultants and attorneys shall have access to entry upon the Property. Purchaser shall indemnify, defend, protect and hold the Seller and all Seller Parties (as defined in Section 7(h)(1) below). and the Property harmless from any losses. costs. damages, claims and/or liabilities. including but not limited to, mechanics' and materialmen's liens and attorney fees and costs proximately caused by such entry upon the Property. In the event Escrow does not close due to an election by the Purchaser not to purchase the Property or a default by the Purchaser, the Purchaser shall, at its sole cost and expense, promptly return the Property to the Seller in the same physical condition it now enjoys. and shall repair any physical damage caused by the Purchaser to the Property as part of or in connection with any such entry upon the Property. The Purchaser is self -insured with excess coverage provided pursuant to an insurance pool. Any agents, consultants or contractors that perform activities on the Property shall maintain: (I) comprehensive public liability and property damage insurance, including direct contractual and contingent liability with limits of $2,000,000 for personal liability to or death of any one person, $2,000,000 for personal injury to or death of' any one person on an occurrence basis, $1,000,000 for property damage in any one accident and $2,000,000 policy limit for aggregate operation on an occurrence basis; and (2) comprehensive automobile liability insurance with limits of $1,000,000 for personal injury to or death of any one person. $2,000,000 for personal injury to or death of more than one person in any one accident and $1,000,000 for property damage in any one accident. Certificates of such insurance shall be delivered by the Purchaser to the Seller before entry onto the Property by the Purchaser or its agents, contractors or employees. The Purchaser shall not permit any mechanic's, materialman's, contractor's, subcontractor's or other lien arising from any work done by the Purchaser or its agents pursuant to this Agreement to stand against the Property. If any such lien shall he filed against the Property, the Purchaser shall cause the same to be discharged or bonded within ten (10) days after actual notice of such tiling. by payment, deposit, bond or otherwise. The Purchaser's obligations under this Section 4(a) shall survive the termination or expiration of this Agreement and/or Closing. The Purchaser shall have the right during the Due Diligence Period, after providing not less than twenty-four (24) hours advance notice to the Seller, to perform (or cause its consultants and contractors to perform) lead based paint and asbestos testing provided the 7 Attachment No. 2 same are performed in accordance with ASTM published testing standards. Except as set forth in the immediately preceding sentence, if Purchaser desires to do any invasive testing at the Property. the Purchaser may do so only after obtaining Seller's prior written consent to the same, which consent may be withheld or granted on conditions in Seller's sole and absolute discretion. The Purchaser shall promptly restore the Property to the condition the Property was in immediately prior to any such tests. at the Purchaser's sole cost and expense. The Purchaser shall provide the Seller with a complete set of plans, drawings and specifications ("Invasive Testing Plans") that define to the sole satisfaction of the Seller the invasive testing to be performed on the Property and the names of all environmental and other consultants, contractors and subcontractors who will be performing such invasive testing (collectively "Purchaser's Consultants"). The Purchaser shall deliver the names of the Purchaser's Consultants and the Invasive Testing Plans to the Seller concurrently with its request to the Seller that the Purchaser desires to perform invasive testing (unless the names of Purchaser's Consultants have previously been provided to the Seller). (b) Due Diligence Deliveries. Not later than five (5) Business Days after execution and delivery of this Agreement to the Escrow Agent. the Seller shall either provide the Purchaser with true. correct and complete copies of all plans and specifications for the Property (including a set of current as -built plans and specifications), if any. 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 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 requiredto 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 (10`h) 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 temtination 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 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 8 Attachment No. 2 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 equal to the Purchase Price (less the Deposit and plus or minus expenses and prorations) as 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. 6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser's obligation to Close shall be conditioned upon the satisfaction or entailed 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 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 Seiler 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 (101-11) 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 retum 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 9 Attachment No. 2 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 (I) 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. (1) 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. (g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement affecting the Property. (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. (if This Agreement has been formally approved by resolution of the City of National City. 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. 10 Attachment No. 2 (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 entorceahle 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: ( I) 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 inunediately notify Purchaser i❑ 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 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 (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. 11 Attachment No. 2 (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 AGREEMENT THAT, 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, 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) 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 INTEGRI"I'Y. 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 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 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 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 12 Attachment No. 2 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 WITII ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, 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 'ENE 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 T O PURCHASER FOR FRAUD OR BREACH 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 (eollectively, the "Non -Released Parties"). PURCHASER ACKNOWLEDGES THAT AS OF THE EXPIRATION OF THE DUE DILIGENCE PERIOD, PURCHASER SHALL HAVE COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING 'LO THE ACQUISILION OF THE PROPERTY HEREUNDER (IT BEING ACKNOWLEDGED AND AGREED THAT PURCHASER SHALL BE DEEMED TO HAVE INSPECTED EACH APARTMENT UNIT WITHIN TIIE PROPERTY) 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 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 13 Attachment No. 2 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 -IHE PROPERTY NOR SHALL SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, 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 DIECiO, 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 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 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 14 Attachment No. 2 PURCHASER BY SELLER IN RELATION TO TIIE PROPERTY, PROVIDED THAT THE FOREGOING SHALL NOT BE A LIMITATION OR MODIFICATION OF THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED FOR IN SECTION 7 OF TIIIS AGREEMENT. SELLER'S INITIALS (i} Indemnity and Release. PURCHASER'S INITIALS (1) indemnity. For the purposes of this Section 7(i), the tern "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 Sellers 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 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 15 Attachment No. 2 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." (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 16 Attachment No. 2 the Releasces 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. eTt 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 ('losing 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 he 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. (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. Brokers. 17 Attachment No. 2 (a) Seller's Broker. The Seller hereby represents and warrants to the Purchaser that the Seller has engaged Margo Villarin of JDM Properties ("Seller's Broker") to represent the Seller in the transaction that is the subject of this Agreement and that the Seller has not engaged the services of any other real estate agent or broker with respect to the transaction that is the subject of this Agreement. The Seller shall pay any and all remuneration, brokerage commissions. fees and other compensation to the Seller's Broker pursuant to an agreement between the Seller and the Seller's Broker. (b) Purchaser's Broker. The Purchaser hereby represents and warrants to the Seller that the Purchaser has not engaged the services of any real estate agent or broker with respect to the transaction that is the subject of this Agreement. (c) Indemnity. 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. (d) Survival. The provisions of this Section 9 shall survive the Closing or termination of this Agreement. (e) Scope of Broker Duty. Buyer and Seller acknowledge and agree that .JDM Properties: (1) Did not decide what price Buyer should pay or Seller should accept. (2) Does not guarantee the condition of the Property. (3) Shall not be responsible for identifying defects that are not known to JDM Properties. (4) Shall not be responsible for providing legal or tax advice regarding any aspect of the transaction entered into by Buyer and Seller. (5) Shall not be responsible for providing other advice or information that exceeds the knowledge, education and experience required to perform real estate licensed activity. Buyer and Seller agree to seek legal and tax advice from appropriate professionals. 18 Attachment No. 2 (6) Shall not be responsible for verifying square footage. representations of others or information contained in inspection reports, advertisements, or flyers. (7) Does not guarantee the performance, adequacy or completeness of inspections, services. products or repairs provided or made by Seller or others. 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 he 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, (h) 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: I f to Seller: If to Purchaser: Copy to: David Comartin and Robert Comartin I e NoeTHSHcPt" � , c' «0: A i!d '7? , (4, G'// %/J' Facsimile No. Email: b1, C cn Ai2-.nn, City of National City Attn: Brad Raulston 1243 National City Boulevard National City, CA 91950 Facsimile No. (619) 336-4286 Email: braulston@nationalcityca.gov Christensen & Spath LLP Attention: Walter F. Spath 1❑ 550 West C Street, Suite 1660 San Diego, CA 92101 Facsimile No. (619) 236-8307 Email: wfs@candslaw.net 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. 19 Attachment No. 2 12. Risk of Loss. (a) Damage or Destruction. Subject to the provisions of this Section 12(a). the risk of loss or damage to the Property until the close of Escrow will be borne by Seller. Upon the occurrence of any damage to or destruction of the Property. Seller shall within thirty (30) days after the occurrence of such damage or destruction give written notice to Purchaser ("Damage Notice") specifying the estimated cost to repair or restore the Property and an estimate of the insurance proceeds, if any, that will he available with respect to such damage or destruction. The close of Escrow shall be appropriately delayed to provide adequate time for Seller to give the Damage Notice and Purchaser to make its election provided for below. (b) Damage in Excess of $100.000. If prior to the close of Escrow there is damage to or destruction of the Property that will cost in excess of One Hundred Thousand Dollars ($I00,000) to repair or restore. Purchaser shall have the right by written notice given to Seller within ten (10) days of Purchaser receiving the Damage Notice, to elect to: (i) close Escrow in such damaged condition, in which event the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to repair or restore the Property and all insurance proceeds shall be assigned and payable to Purchaser. and if Seller receives any such insurance proceeds, they shall be immediately remitted by Seller to Purchaser at Closing or, if received by Seller after Closing, promptly after receipt; (ii) terminate this Agreement, in which event the Deposit and all interest accrued thereon shall be immediately returned to Purchaser, and neither party shall have any further rights or obligations to the other party. except neither party shall be relieved of any obligations provided for in this Agreement which expressly survives its termination. (c) Damage of $100.000 or Less. If prior to the close of Escrow there is damage to or destruction of the Property that will cost One Hundred Thousand Dollars ($100.000) or less to repair or restore, Purchaser shall nevertheless close Escrow with the Property in such damaged condition, the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to repair or restore the Property, and all insurance proceeds shall be assigned and payable to Purchaser, and if Seller should receive any such insurance proceeds, they shall be immediately remitted to Purchaser. 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 he 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. 20 Attachment No. 2 (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 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 19 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 he deemed or construed by the parties or by any third person to create a relationship of principal and agent or partnership 21 Attachment No. 2 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) Purchaser Approval. Where this Agreement refers to an action or approval of the Purchaser, it shall mean the approval of the Community Development Executive Director of the Purchaser, 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 Coansel. 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 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) 1031 Exchange. In order to effect an Internal Revenue Code section 1031 tax - deferred exchange of the Property, Seller has the right to engage an aecommodaior to fulfill Seller's obligations hereunder; in which case Purchaser shall cooperate to accomplish such exchange provided each of the following conditions are satisfied: (i) Purchaser shall, in such cooperation, incur no cost, liability or obligation for consideration (or otherwise) other than the costs and consideration called for in this Agreement: and (ii) the Closing shall not be delayed or prevented. (r) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations set forth in this Agreement, including without limitation, the Due Diligence Period, the deadline for Closing, the deadline for making the Deposit, shall all be automatically extended by one (I) 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. (s) 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. 22 Attachment No. 2 SELLER: David Comartin Robe IA) Comartin (Lvtivik. [SIGNATURES CONTINUED ON FOLLOWING PAGE] Attachment No. 2 PURCHASER: City of National City By: Print Name: Its: Approved as to Form: By: Claudia Gacitua Silva City Attorney 24 Attachment No. 2 EXHIBIT "A" PROPERTY LEGAL DESCRIPTION Real property in the City of National City. County of San Diego, State of California, described as follows: PARCEL 1: THAT CERTAIN PARCEL OF LAND SITUATE IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF LOTS 1 TO 10. INCLUSIVE, IN BLOCK 175 OF NATIONAL CITY ACCORDING TO MAP THEREOF NO, 348 FILED OCTOBER 2, 1882, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AND A PORTION OF THE SOUTIIEASTERLY HALF OF THE CLOSED PORTION OF 17TH STREET ABUTTING UPON SAID LOT L MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 10 IN BLOCK 175, SAID CORNER BEING IN THE NORTHWESTERLY LINE OF 18TH STREET AS SHOWN ON SAID MAP: THENCE SOUTHWESTERLY ALONG THE SOUTHEASTERLY LINE OF SAID LOT 10, A DISTANCE OF 42.00 FEET TO A LINE PARALLEL WITH AND DISTANT 17.00 FEET NORTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM TI-IE CENTER LINE OF SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY'S MAIN TRACT (SAN DIEGO-SAN YSIDRO): THENCE NORTHWESTERLY ALONG SAID PARALLEL LINE. 290.00 FEET TO THE CENTER LINE OF SAID 17TH STREET: THENCE NORTHEASTERLY ALONG SAID CENTER LINE.. 48.00 FEET TO THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY I.,INE OF SAID LOT I IN BLOCK 175; THENCE SOUTHEASTERLY ALONG SAID PROLONGATION AND THE NORTHEASTERLY LINE OF SAID LOTS 1 TO 10, A DISTANCE OF 290.00 FEET TO THE POINT OF BEGINNING. TOGETHER WITH THAT PORTION OF TI--IE SOUTHWESTERLY 1/2 OF THE ALLEY ADJOINING SAID LOTS 6 THROUGH 10 ON THE NORTHEAST AS VACATED AND CLOSED TO PUBLIC USE. EXCEPT THAT PORTION OF SAID LAND LYING BELOW A DEPTH OF 500.00 FEET, MEASURED VERTICALLY, FROM THE CONTOUR OF THE SURFACE OF SAID PROPERTY: HOWEVER, GRANTOR. OR ITS SUCCESSORS AND ASSIGNS, SHALL NOT HAVE THE RIGHT FOR ANY PURPOSE WHATSOEVER TO ENTER UPON, INTO OR THROUGH THE SURFACE OF SAID PROPERTY OR ANY PART THEREOF LYING BETWEEN SAID SURFACE AND 500.00 FEET BELOW SAID SURFACE, AS EXCEPTED IN THE DEED RECORDED FEBRUARY 7, 1980. AS FILE NO. 80-044143. PARCEL 2: 25 Attachment No. 2 LOTS 13, 14, 15. 18 AND 17 IN BLOCK 115 OF NATIONAL CITY, IN THE CITY OF NATIONAL CITY. COUNTY OF SAN DIEGO. STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 348. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 2, 1882. EXCEPTING FROM SAID LOT 13, THE SOUTHERLY 20 FEET THEREOF, TOGETHER WITH THAT PORTION OP THE NORTHEASTERLY 1/2 OF THE ALLEY ADJOINING SAID LOTS 14 THROUGH 17 AND THE REMAINDER PORTION OF LOT 13 ON THE SOIJTHWEST AS VACATED AND CLOSED TO PUBLIC USE. PARCEL 3: LOTS 18 AND 19 IN BLOCK 175 OF NATIONAL CITY, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO. STATE OF CALIFORNIA, ACCORDING TO TFIE MAP THEREOF NO. 348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. APN: 559-086-13-00, 559-086-12-00. 559-086-05-00, and 559-086-03-00 26 Attachment No. 2 EXHIBIT "B" GRANT DEED WHEN RECORDED MAIL TO: MAIL TAX STATEMENTS TO: SPACE ABOVE THIS I INF FOR RECORDER'S USE GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, do hereby GRANT to I f organized under the laws of the State of { {, the real property in the County of San Diego, State of California, described on Exhibit "A" attached hereto and incorporated herein by this reference. David Comartin Robert Comartin Dated .2013 Dated ,2013 27 Attachment No. 2 ACCEPTANCE This is to certify that the interest(s) in real property conveyed by this instrument to the City of National City, are hereby accepted by the undersigned officer on behalf of the City of National City, pursuant to authority conferred by resolution of the City of National City, Resolution No. , adopted on , 2013, and the grantee consents to recordation thereof by its duly authorized officer. City of National City By: Print Name: Its: Approved as to Form: Ry: Claudia Gacitua Silva City Attorney 28 Dated: .1013 RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE AGREEMENT WITH ROBERT T. COMARTIN AND DAVID P. COMARTIN FOR THE PURCHASE OF PROPERTY LOCATED AT 1726 WILSON AVENUE FOR THE TOTAL PURCHASE PRICE OF $1,650,000 FOR THE RELOCATION OF THE NATIONAL CITY PUBLIC WORKS FACILITIES FROM 2100 HOOVER AVENUE IN THE CITY OF NATIONAL CITY ALLOWING FOR THE DEVELOPMENT OF 201 AFFORDABLE RENTAL HOUSING UNITS AS PHASE I AND II OF THE WESTSIDE IN -FILL TRANSIT ORIENTED DEVELOPMENT PROJECT WHEREAS, the Successor Agency to the Community Development Commission as the National City Redevelopment Agency (Successor Agency) is subject to the enforceable obligation commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD) Development and Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek Housing Partners, LP (Developer); and WHEREAS, as part of the WI-TOD DDA, National City Public Works ("PW") operations at 2100 Hoover Avenue will need to be relocated to other sites in order for the Successor Agency to complete environmental remediation and develop 201 affordable housing units at the Hoover property, as required by the DDA; and WHEREAS, the City's relocation plans for PW have accommodated for a substantial part of PW operations within existing City facilities; and WHEREAS the City still needs to secure a facility that can house the following PW functions: streets/sewer, vehicle maintenance and storage, and office space; and WHEREAS, the City has reviewed options for relocation but alternatives that have been considered are not readily available or do not fully satisfy PW's operational requirements and do not fall within the timeline for implementing the WI-TOD DDA development; and WHEREAS, the City has entered into a letter of intent to purchase a 1.17 acre site that provides 6430 sq. ft. of useable building area including office space and a repair shop with two large entry bays commonly known as 1726 Wilson Avenue in the City of National City (the Property); and WHEREAS, the owners of the 1726 Wilson Avenue site are willing to sell their property at a negotiated price of $1,650,000; and WHEREAS, all actions required by all applicable law with respect to the proposed Purchase and Sale Agreement have been taken in an appropriate and timely manner; and WHEREAS, the City Council has duly considered all terms and conditions of the proposed Purchase and Sale Agreement and believes that the acquisition of the Property is in the best interests of the City of National City and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local law requirements. Resolution No. 2013 — Page Two NOW, THEREFORE, BE IT RESOLVED that the City Council authorizes the Mayor to execute the Purchase and Sale Agreement between the City of National City and Robert T. Comartin and David P. Comartin for the purchase of the Property in the City of National City for a total purchase price of $1,650,000. Said Purchase and Sale Agreement is on file with the City Clerk. BE IT FURTHER RESOLVED that the City Council authorizes City Manager or her designee to execute any other documents necessary to fulfill the terms of the Purchase and Sale Agreement, including escrow documents. BE IT FURTHER RESOLVED that the City Council determines the purchase of the Property is exempt under CEQA, pursuant to section 15301 of the Guidelines, because the purchase and use of the Property would involve negligible or no expansion of the existing use of the structures and/or facilities, thus it is categorically exempt. PASSED and ADOPTED this 20th day of August, 2013. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney