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HomeMy WebLinkAbout2014 CON PA Carmax Auto Superstores - Exclusive Negotiating AgreementEXCLUSIVE NEGOTIATING AGREEMENT BY AND BETWEEN PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AND CARMAX AUTO SUPERSTORES CALIFORNIA, LLC This Exclusive Negotiating Agreement ("Agreement" or "ENA"), dated as of this 21 st day of October, 2014 ("Effective Date"), is made by and between the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic, (the "Authority") and CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company ("CarMax"). In consideration of the mutual covenants and promises set forth below, the Authority and CarMax (collectively, the "Parties") agree as follows: RECITALS This Agreement is entered into with reference to the following facts: A. In 1977, pursuant to Resolution No. 12,402, the City of National City (the "City") created the Parking Authority of the City of National City in accordance with the Parking Law of 1949. B. The Authority is the owner of a 15.08 acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road, in the City of National City, State of California, identified as County Assessor's Parcel Number 564-471-11, as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Overall Site"). C. In 1978, the Authority conveyed to the County of San Diego an easement for open space and park purposes over the Overall Site (the "Easement") in accordance with a Cooperation Agreement between the City of National City and the County of San Diego (the "County") for the development of the Plaza Bonita Shopping Center, the construction of Plaza Bonita Road, and the funding of improvements to portions of Sweetwater Regional Park. D. On April 3, 2007, the Authority and the County entered into an Option to Purchase Agreement (the "Option Agreement") setting forth the terms of an option whereby the Authority could purchase the Easement from the County. E. In the past, County staff have represented that they will exercise their best efforts to relinquish the Easement over the Overall Site for a fee of $3,000,000 and that they will use the fee to purchase replacement open space property within the Sweetwater Valley Regional Park and the Sweetwater Summit Camping Area. F. The Option Agreement has been amended six times, most recently on October 15, 2013 pursuant to Resolution No. 2013-2, to extend the term of the Option Agreement. 2014 Exclusive Negotiating Agreement Page 1 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC G. The City Council of the City of National City ("City Council") adopted the Mitigation Monitoring and Reporting Program, adopted and made a Statement of Overriding Considerations, and certified the Final Environmental Impact Report for the National City Costco Wholesale Project, SCH #2003111073, November 2007 ("FEIR") for the Overall Site on November 20, 2007, pursuant to Resolution No. 2007-259. H. The City Council amended the Combined General Plan/Zoning Map for the Overall Site from Open Space Reserve (OSR) to General Commercial -Planned Development (CG-PD) on November 20, 2007, pursuant to Resolution No. 2007-259. The CG-PD zone was renamed the MXD-2 zone in 2012. T. CarMax desires to acquire approximately 9.5 acres of the Overall Site from the Authority (the "Property"), on which it intends to construct and operate a CarMax Superstore with related parking and landscaping (collectively, the "Project"), all in accordance with plans and specifications subject to approval by the Authority. J. The Authority and CarMax desire to enter into this Agreement to initiate exclusive negotiations to allow CarMax to undertake its due diligence activities regarding the Property and to allow the Authority to work with the County for the release of the Easement on the Overall Site, with the objective of subsequently entering into a mutually acceptable purchase and sale agreement for the Property. Section 1. Exclusive Negotiating Period The Exclusive Negotiating Period begins on the Effective Date noted above and shall cover the Initial Negotiation Period, the Due Diligence Period and the Permitting Period as set forth herein. (a) Initial Negotiation Period. During the first 120 days following the Effective Date ("Initial Negotiation Period") (i) Authority staff shall work with County staff to attempt to negotiate a reduction in the price for release of the Easement, and (ii) Authority and CarMax shall negotiate, in good faith, the terms of a Purchase and Sale Agreement for the Property. During the Initial Negotiation Period, CarMax shall meet with Authority staff and its consultants to develop a conceptual plan of the Project. (b) Due Diligence Period. If the parties have entered into a mutually acceptable Purchase and Sale Agreement at the conclusion of the Initial Negotiation Period, then during the first 120 days following the execution of the Purchase and Sale Agreement by Authority and CarMax ("Due Diligence Period"), CarMax shall perform its due diligence to determine if the Property is suitable for the Project. (c) Permitting Period. Commencing upon the expiration of the Due Diligence Period, CarMax shall have the right to an additional period of time (the "Permitting Period"), not to exceed a total of 365 days thereafter, in which to satisfy its obligations under Section 5; provided that if 2014 Exclusive Negotiating Agreement Page 2 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC CarMax and the Authority determine in good faith that CarMax cannot satisfy its obligations under Section 5 within a reasonable period of time, it shall have the right to extend the Permitting Period for up to two additional thirty day periods. Section 2. Purchase Price The purchase price for the Property is Three Million Five Hundred Thousand Dollars ($3,500,000.00) in gross (the "Purchase Price"). Section 3. Conditions Precedent to Close of Escrow (a) As conditions precedent to the close of escrow under the Purchase and Sale Agreement, Car Max shall: (i) Obtain a parcel map from the City in compliance with National City Municipal Code Title 17 and the Subdivision Map Act (California Government Code sections 66410 — 66499.58); (ii) Obtain all City, State, and Federal Permits ("Permits") required for CarMax's construction of the Project and use of the Property; (iii) Obtain all City approvals of the development standards in the City of National City Land Use Code (National City Municipal Code Title 18) ("Approvals") required for CarMax's construction of the Project and use of the Property; (iv) Complete and obtain certification of, to the satisfaction of the Authority, all environmental documents in compliance with Section 9 below; and (v) Process an amendment to the City of National City Land Use Code to allow used automobile sales in the MXD-2 zone. (b) As a condition precedent to the close of escrow under the Purchase and Sale Agreement, the Authority shall complete the purchase of the Easement from the County. Section 4. Obligations of Authority (a) During the Exclusive Negotiating Period, the Authority shall use its good faith efforts to undertake the following actions, provided that the Authority shall not incur any liability for costs or expenses incurred by CarMax to third parties in connection with the Project: (i) Work with County staff to negotiate a reduction in the cost to release the Easement from the County pursuant to the Option Agreement; 2014 Exclusive Negotiating Agreement Page 3 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (ii) Enter into an amendment to the Option Agreement with the County so that the close of escrow on the Option Agreement occurs simultaneously with the close of escrow on the Purchase and Sale Agreement; (iii) Furnish CarMax with any documents in its possession or control to assist CarMax with its due diligence; (iv) Respond in a timely manner on all submittals made by CarMax pursuant to Section 5; and (v) Work with CarMax to establish a reasonable time schedule for the negotiation of a Purchase and Sale Agreement and the completion of all necessary Approvals and Permits to implement the Project. (b) The Authority, its staff, consultants and agents agree, and such parties shall so notify any and all other parties, that during the Exclusive Negotiating Period, the Authority and its staff, consultants and/or agents shall not negotiate, discuss, or otherwise communicate with any person or entity, other than CarMax, regarding entering into a Purchase and Sale Agreement, the transactions contemplated by this ENA, the availability of the Property for development, or any other matter related to the foregoing. (c) Throughout the Exclusive Negotiating Period, Authority staff shall be available to meet with CarMax to discuss the Project and any issues pertinent to the preparation and implementation of a Purchase and Sale Agreement for the acquisition of the Property and the construction and development of the Project. (d) The land use authority is the City and the sole decision -making body for the Permits and Approvals is the City Council. The Authority will take an active role in assisting CarMax in working with the City to obtain Permits and Approvals. The Authority's role will be that of a facilitator in the process. Section 5. Obligations of CarMax (a) During the Due Diligence, CarMax shall work with Authority staff to develop prototypical building elevations and conceptual site plans, including parking and pedestrian circulation in relation to its surroundings (collectively, "Concept Plans"). The Concept Plans shall identify building design features, including signage. (b) During the Due Diligence Period, CarMax shall deliver to the Authority a narrative which outlines sustainability and green building concepts that may be incorporated into the Project through the design, construction and operation phases. CarMax shall comply with National City Municipal Code Chapter 15.78; provided, however, that notwithstanding the foregoing, there is no requirement that the Project has to be LEED certified or certifiable. 2014 Exclusive Negotiating Agreement Page 4 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (c) During the Due Diligence Period, CarMax shall perform, or cause to be performed, the necessary studies to determine what environmental documents, if any, are necessary to comply with the California Environmental Quality Act ("CEQA") in compliance with Section 9 below. CarMax is responsible for the costs of the studies. (d) During the Permitting Period, CarMax shall use due diligence in its effort to obtain a parcel map for the Overall Site and shall keep the Authority apprised of its progress. CarMax is responsible for all costs associated with the parcel map. (e) During the Permitting Period, CarMax shall use due diligence in its effort to obtain all required Permits and Approvals and shall keep the Authority apprised of its progress. CarMax is responsible for all costs associated with the Permits and Approvals relating to the Property and the Project. (f) During the Permitting Period, CarMax shall, if applicable, apply to other federal and state agencies for all required permits including, but not limited to, the United States Army Corps of Engineers, the Regional Water Quality Control Board, the California Department of Fish and Game, the Federal Emergency Management Agency, and the California Department of Transportation. CarMax is responsible for all costs associated with required federal and state permits. (g) During the Permitting Period, CarMax shall complete and obtain certification of, to the satisfaction of the Authority, all environmental documents in compliance with Section 9 below. Section 6. Purchase and Sale Agreement Within the first sixty days of the Initial Negotiation Period, the Authority shall deliver to CarMax a draft Purchase and Sale Agreement. The Parties acknowledge and agree that during the term of this Agreement, the Parties shall use their respective good faith efforts to negotiate and enter into a Purchase and Sale Agreement, which shall include, but not be limited to, the following: (a) A provision conveying the Property from the Authority to CarMax; (b) A provision stating that the Authority will convey the Site to CarMax in its "as -is" condition and that CarMax will defend and indemnify the Authority and its respective agents and representatives with respect to the physical condition of the Property, including any environmental contamination; (c) A provision requiring CarMax, at its sole cost, to (i) cause any environmental remediation of the Property as may be required for the construction and operation of the Project and (ii) obtain all Permits and Approvals relating to the construction and operation of the Project; and 2014 Exclusive Negotiating Agreement Page 5 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (d) A provision ensuring that CarMax will comply with the National Pollutant Discharge Elimination System ("NPDES") Municipal Permit and the Water Quality Improvement Plan ("WQ1P") pursuant to the Municipal Permit. Section 7. CarMax Deposit Within ten days after full execution of this ENA by the Authority, CarMax shall deposit into escrow a deposit in the amount of Twenty -Five Thousand Dollars ($25,000.00) in the form of a wire payment, ACH, or any other form that is acceptable to the Authority ("Good Faith Deposit"). The purposes of the Good Faith Deposit are (i) as consideration to the Authority for exclusively negotiating with CarMax for the Property, and (ii) to ensure that CarMax proceeds diligently and in good faith to perform all of CarMax's obligations under this ENA. The Good Faith Deposit may be applied towards the Purchase Price. Any interest accrued on the Good Faith Deposit shall be the property of the Authority and shall be retained by the Authority. The Good Faith Deposit shall be returned to CarMax at the time and in the event of any of the following: (a) At the expiration of the Due Diligence Period; provided that CarMax has diligently performed and has completed all of its applicable obligation in the ENA; (b) During the Permitting Period if CarMax is denied the Permits, Approvals or the parcel map, or if CarMax is unable to obtain certification of the environmental document required pursuant to Section 9, after diligently pursuing the certification; or (c) In the event the ENA is terminated pursuant to Section 10 due to a breach by the Authority. Section 8. No Acquisition CarMax acknowledges and agrees that it has not acquired, nor will it acquire, by virtue of the terms of this Agreement, any legal or equitable interest in the Property from the Authority. Section 9. Environmental CarMax shall be responsible to perform any necessary studies and to prepare, and cause to be certified, any necessary supplemental or subsequent environmental documents to the FEIR for the Project in full compliance with CEQA. CarMax shall be responsible for all reasonably necessary costs associated with carrying out the obligations under CEQA. Section 10. Termination (a) Either Party may terminate this Agreement if the other Party fails to comply with and perform in a timely manner in any material respect the provisions to be performed by that Party. The Party wishing to terminate shall give thirty days written notice to the other Party 2014 Exclusive Negotiating Agreement Page 6 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LI,C specifying any such failure to comply with the terms of this Agreement. The Party wishing to terminate shall not terminate this Agreement if the other Party cures the deficiency(ies) specified in the notice within thirty days after delivery of the notice. (b) If CarMax determines that either the Property or the Project are not suitable or feasible for any reason, on or before the last day of the Due Diligence Period, or if CarMax is unable to obtain Permits or Approvals, after diligently working to obtain the Permits and Approvals, as it deems necessary in its sole discretion within the Permitting Period, or in the event that the closing conditions set forth in the Purchase and Sale Agreement have not been satisfied, then CarMax may send written notice of such determination to the Authority, and this Agreement shall immediately terminate, except for those provisions that expressly survive termination. Section 11. Effect of Agreement Notwithstanding any other provision of this ENA, the Parties expressly acknowledge and agree as follows: Except for the Authority's obligations in Sections 4, and its obligation to negotiate the terms of the Purchase and Sale Agreement in good faith, none of the matters described in this Agreement as a purported commitment or obligation of the Authority shall have any effect unless and only to the extent such matters are expressly set forth in a Purchase and Sale Agreement or other written agreement duly authorized and approved by the Parties. Notwithstanding any provision of this Agreement to the contrary, CarMax acknowledges and expressly agrees as fol lows: (a) That this Agreement does not obligate the Authority in any way to approve, in whole or in part, any of the matters described in this Agreement, including, without limitation, matters pertaining to the conveyance of land, land use entitlements or approvals, permits, waivers, or reduction of fees, development or financing of the Property, or any other matters to be acted on by the Authority, as applicable; (b) That all such matters shall be considered and processed by the Authority in accordance with all otherwise applicable Authority and City requirements and procedures; (c) Except as may be expressly set forth in this Agreement, that the Authority reserves all rights to approve, disapprove, or approve with conditions, all such matters in its sole discretion; (d) Upon the execution of a Purchase and Sale Agreement by the Parties, this Agreement shall be null and void and of no effect and shall be superseded by the terms and conditions of the Purchase and Sale Agreement; (e) The Parties shall promptly commence the good faith negotiation of a Purchase and Sale Agreement upon execution of this Agreement by the Authority. 2014 Exclusive Negotiating Agreement Page 7 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC Section 12. Governing Law This Agreement and the legal relations between the Parties shall be governed by and construed and enforced in accordance with the laws of the State of California. Section 13. Entire Agreement This ENA constitutes the entire agreement of the Parties with respect to the Property and the Project. There are no agreements or understandings between the Parties and no representations by either Party to the other as an inducement to enter into this Agreement, except as expressly set forth in this Agreement. All prior negotiations between the Parties are superseded by this Agreement. This Agreement may not be altered, amended, or modified except by a writing executed by both Parties. Notwithstanding anything provided to the contrary, whether expressed or implied, neither Party shall have any obligation to enter into a Purchase and Sale Agreement. Neither Party, nor its officers, members, staff, or agents have made any promises to the other Party to this Agreement other than to exclusively negotiate in good faith during the Exclusive Negotiating Period, and no statements of either Party or its officers, members, staff, or agents as to future obligations shall be binding upon the Parties until a Purchase and Sale Agreement has been approved by CarMax and the governing body of the Authority, after a noticed public hearing, and has been duly executed by the Parties. Section 14. Prohibition against Assignment CarMax shall not assign all or any part of this Agreement without the prior written approval of the Chairman of the Authority. Such approval shall be within the reasonable discretion of the Chairman of the Authority in light of financial and other pertinent considerations. Section 15. Notices Any notice which is required or which may be given pursuant to this Agreement may be delivered or mailed to the Party to be notified, as follows: (a) To CarMax: CarMax Auto Superstores California, LLC, or its assignee 12800 Tuckahoe Creek Parkway Richmond, VA 23238 Attn: JM Dixon Phone: 804-747-0422 x4326 Fax: 804-935-4547 Email: jm dxon@carmax.com 2014 Exclusive Negotiating Agreement Page 8 of II Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (b) To the Authority: City of National City Parking Authority City Manager's Office 1243 National City Boulevard National City, CA 91950-4301 Attn: Brad Raulston Phone: 619-336-4250 Fax: 619-336-4327 Email: braulston@nationalcityca.gov All notices required or permitted hereunder shall be sent by certified mail, return receipt requested, postage prepaid, Federal Express or other comparable overnight delivery service, or by facsimile (provided that confirmation thereof is delivered by certified mail or overnight delivery service providing for delivery against receipt). Section 16. Public Hearing Any Purchase and Sale Agreement that may be negotiated between the Parties, and any related matters pertaining to the Property or the Project, are subject to consideration at a public hearing by the Authority. Nothing in this Agreement shall commit or be construed as committing the Authority to approve any Purchase and Sale Agreement or any other matter pertaining to the Property or the Project. Section 17. Counterparts This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, and all of which, together, shall constitute one and the same instrument. Section 18. Force Majeure Neither Party shall be in default of this Agreement if its performance hereunder is delayed, prohibited, or prevented because of conditions beyond such Party's control, including without limitation, acts of God, governmental restriction, strike, war, insurrection, litigation or administrative proceedings or the threat thereof, initiatives, referenda, environmental conditions, riots, floods, earthquakes, fires, casualties, severe weather or acts of the other Party ("Force Majeure Delay"). At such Party's option, (a) the Exclusive Negotiating Period may be extended for each day of the Force Majeure Delay with the other Party's consent, in its reasonable discretion, or (b) this Agreement shall terminate, except for those obligations that expressly survive termination. 2014 Exclusive Negotiating Agreement Page 9 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC Section 19. Specific Performance Subject to CarMax's right to terminate this Agreement pursuant to Section 10, CarMax's exclusive remedy for an uncured Authority default under this Agreement is to institute an action for specific performance of the terms of this Agreement. In no event shall CarMax have the right, and CarMax's expressly waives the right, to seek monetary damages of any kind, including but not limited to actual damages, economic damages, consequential damages, or lost profits, from the Authority in the event of a default by the Authority under this Agreement or any action related to this Agreement. Section 20. Indemnity CarMax agrees to defend, indemnify and hold harmless the Authority and the City of National City, their officers, employees, members, agents, and representatives against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of CarMax's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the Authority or the City, their agents, members, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Section 21. No Obligation by Authority of the City of National City Nothing in this Agreement shall obligate or be deemed to obligate the Authority or the City to approve or execute a Purchase and Sale Agreement, or to convey any interest in any portion of the Overall Site to CarMax. The parties understand and agree that the Authority and the City cannot be obligated to approve or execute a Purchase and Sale Agreement or to convey any interest in any portion of the Overall Site to CarMax unless and until, among other legal requirements and as applicable, (i) CEQA requirements are met, and (ii) a Purchase and Sale Agreement satisfactory to the Authority is first negotiated, executed by CarMax, approved by the Authority and/or the City Council, in each of their sole discretion, after duly noticed public hearing, and executed by the Authority and/or the City, as appropriate. Section 22. Limitations of this Agreement Nothing contained in this Agreement shall constitute a waiver, amendment, promise or agreement by the Authority or the City (or any of its departments or boards) as to the granting of any approval, permit, consent or other entitlement in the exercise of the Authority's or the City's regulatory capacity or function. CarMax acknowledges and agrees that no Authority or City staff, consultant, agent, or member of the Authority Board or the City Council has the authority 2014 Exclusive Negotiating Agreement Page 10 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC to bind the Authority or the City. The final form of any proposed Purchase and Sale Agreement to be negotiated may contain matters not contemplated by this Agreement, including, but not limited to, matters necessary to accommodate compliance with the law, including without limitation CEQA. IN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the Effective Date. The later date on which the duly authorized representative(s) of each Party (excluding their legal counsel) has executed this Agreement shall be inserted as the Effective Date in the Preamble of this Agreement. PARKING AUTHORITY OF THE CITY OF NATIONAL CITY By: Ron Morrison, C airman APPROVED AS TO FORM: udia Silva Legal Counsf6r the Parking Authority of the City of National City 2014 Exclusive Negotiating Agreement CARMAX AUTO SUPERSTORES CALIFORNIA, LLC a Virginia limited liability company By: rIk JitL_ K. Doug1Y oyers ,t Vice Pre iden Page 11 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC Exhibit A Legal Description "LOT 14 OF THE PLAZA BONITA SHOPPING CENTER, IN THE CITY OF NATIONAL CITY, IN THE COUNTY OF SAN DIEGO, IN THE STATE OF CALIFORNIA, ACCORDING TO THE MAP THERE OF MAP 10337 FILED IN OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO IN THE STATE OF CALIFORNIA ON 24 FEBRUARY 1982". 2014 Exclusive Negotiating Agreement Page 12 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LTC RESOLUTION NO. 2014 — 1 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN EXCLUSIVE NEGOTIATING AGREEMENT BY AND BETWEEN THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AND CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, FOR A 9.5 ACRE PARCEL LOCATED AT THE SOUTHWEST CORNER OF SWEETWATER ROAD AND BONITA CENTER ROAD (PARCEL NO. 564-471-11) WHEREAS, the Parking Authority of the City of National City ("Parking Authority") is the owner of a 15.08-acre parcel of land located at the southwest corner of Sweetwater Road and Bonita Center Road (Parcel No. 564-471-11) and Carmax Auto Superstores California, LLC ("CarMax") is desirous of acquiring approximately 9.5 acres of the site on which it intends to construct and operate a CarMax Superstore, in accordance with plans and specifications subject to approval by the Authority; and WHEREAS, the Parking Authority and CarMax desire to enter into an agreement to initiate exclusive negotiations to allow CarMax to undertake its due diligence activities regarding the property, and to allow the Parking Authority to work with the County for the release of the an open space easement on the site, with the objective of subsequently entering into a mutually acceptable purchase and sale agreement for the property. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute an Exclusive Negotiating Agreement by and between the Parking Authority and CarMax Auto Superstores California, LLC., for a 9.5 acre parcel located at the southwest corner of Sweetwater Road and Bonita Center Road (Parcel No. 564-471-11). The Exclusive Negotiating Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 21st day of October, 2014. on Matrison, Chairman ATTEST: Leslie Deese, Secretary PPROVED A _TO FOR udia acitu- Silva Legal Cou Passed and adopted by the Parking Authority of the City of National City, California, on October 21, 2014 by the following vote, to -wit: Ayes: Boardmembers Cano, Morrison, Natividad, Sotelo-Solis. Nays: None. Absent: Boardmember Rios. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Parking Authority LESLIE DEESE Secretary, Parking Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2014-1 of the Parking Authority of the City of National City, California, passed and adopted on October 21, 2014. Secretary, Parking Authority By: Deputy CITY OF NATIONAL CITY, CALIFORNIA PARKING AUTHORITY AGENDA STATEMENT MEETING DATE: October 21, 2014 AGENDA ITEM NO. 2 ITEM TITLE: A resolution of the Parking Authority of the City of National City approving an Exclusive Negotiating Agreement by and between the Parking Authority of the City of National City, a public body corporate and politic, (the "Authority") and CarMax Auto Superstores California, LLC, a Virginia limited liability company ("CarMax"). PREPARED BY: Brad Raulston DEPARTMENT: anager PHONE: Ext. 4250 APPROVED BY: EXPLANATION: The Authority is the owner of a 15.08 acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road. CarMax desires to acquire approximately 9.5 acres of the site on which it intends to construct and operate a CarMax Superstore in accordance with plans and specifications subject to approval by the Authority. The Authority and CarMax desire to enter into an agreement to initiate exclusive negotiations to allow CarMax to undertake its due diligence activities regarding the property and to allow the Authority to work with the County for the release of the an open space easement on the site, with the objective of subsequently entering into a mutually acceptable purchase and sale agreement for the property. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: Finance ENVIRONMENTAL REVIEW: This action is not considered a project as defined by the California Environmental Quality Act (CEQA), and is therefore not subject to CEQA. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution authorizing the Chairman to execute the agreement on behalf of the Authority. BOARD / COMMISSION RECOMMENDATION: Not Applicable. ATTACHMENTS: 1. Proposed ENA EXCLUSIVE NEGOTIATING AGREEMENT BY AND BETWEEN PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AND CARMAX AUTO SUPERSTORES CALIFORNIA, LLC This Exclusive Negotiating Agreement ("Agreement" or "ENA"), dated as of this 21 st day of October, 2014 ("Effective Date"), is made by and between the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic, (the "Authority") and CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company ("CarMax"). In consideration of the mutual covenants and promises set forth below, the Authority and CarMax (collectively, the "Parties") agree as follows: RECITALS This Agreement is entered into with reference to the following facts: A. In 1977, pursuant to Resolution No. 12,402, the City of National City (the "City") created the Parking Authority of the City of National City in accordance with the Parking Law of 1949. B. The Authority is the owner of a 15.08 acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road, in the City of National City, State of California, identified as County Assessor's Parcel Number 564-471-11, as more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (the "Overall Site"). C. In 1978, the Authority conveyed to the County of San Diego an easement for open space and park purposes over the Overall Site (the "Easement") in accordance with a Cooperation Agreement between the City of National City and the County of San Diego (the "County") for the development of the Plaza Bonita. Shopping Center, the construction of Plaza Bonita Road, and the funding of improvements to portions of Sweetwater Regional Park. D. On April 3, 2007, the Authority and the County entered into an Option to Purchase Agreement (the "Option Agreement") setting forth the terms of an option whereby the Authority could purchase the Easement from the County. E. In the past, County staff have represented that they will exercise their best efforts to relinquish the Easement over the Overall Site for a fee of $3.000,000 and that they will use the fee to purchase replacement open space property within the Sweetwater Valley Regional Park and the Sweetwater Summit Camping Area. F. The Option Agreement has been amended six times, most recently on October 15, 2013 pursuant to Resolution No. 2013-2, to extend the term of the Option Agreement. 2014 Exclusive Negotiating Agreement Page 1 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC G. The City Council of the City of National City ("City Council") adopted the Mitigation Monitoring and Reporting Program, adopted and made a Statement of Overriding Considerations, and certified the Final Environmental Impact Report for the National City Costco Wholesale Project, SCH #2003111073, November 2007 ("FEIR") for the Overall Site on November 20, 2007, pursuant to Resolution No. 2007-259. H. The City Council amended the Combined General Plan/Zoning Map for the Overall Site from Open Space Reserve (OSR) to General Commercial -Planned Development (CG-PD) on November 20, 2007, pursuant to Resolution No. 2007-259. The CG-PD zone was renamed the MXD-2 zone in 2012. I. CarMax desires to acquire approximately 9.5 acres of the Overall Site from the Authority (the "Property''), on which it intends to construct and operate a CarMax Superstore with related parking and landscaping (collectively, the "Project"), all in accordance with plans and specifications subject to approval by the Authority. J. The Authority and CarMax desire to enter into this Agreement to initiate exclusive negotiations to allow CarMax to undertake its due diligence activities regarding the Property and to allow the Authority to work with the County for the release of the Easement on the Overall Site, with the objective of subsequently entering into a mutually acceptable purchase and sale agreement for the Property. Section 1. Exclusive Negotiating Period The Exclusive Negotiating Period begins on the Effective Date noted above and shall cover the Initial Negotiation Period, the Due Diligence Period and the Permitting Period as set forth herein. (a) Initial Negotiation Period. During the first 120 days following the Effective Date ("Initial Negotiation Period") (i) Authority staff shall work with County staff to attempt to negotiate a reduction in the price for release of the Easement, and (ii) Authority and CarMax shall negotiate, in good faith, the terms of a Purchase and Sale Agreement for the Property. During the Initial Negotiation Period, CarMax shall meet with Authority staff and its consultants to develop a conceptual plan of the Project. (b) Due Diligence Period. If the parties have entered into a mutually acceptable Purchase and Sale Agreement at the conclusion of the Initial Negotiation Period, then during the first 120 days following the execution of the Purchase and Sale Agreement by Authority and CarMax ("Due Diligence Period"), CarMax shall perform its due diligence to determine if the Property is suitable for the Project. (c) Permitting Period. Commencing upon the expiration of the Due Diligence Period, CarMax shall have the right to an additional period of time (the "Permitting Period"), not to exceed a total of 365 days thereafter, in which to satisfy its obligations under Section 5; provided that if 2014 Exclusive Negotiating Agreement Page 2 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC CarMax and the Authority determine in good faith that CarMax cannot satisfy its obligations under Section 5 within a reasonable period of time, it shall have the right to extend the Permitting Period for up to two additional thirty day periods. Section 2. Purchase Price The purchase price for the Property is Three Million Five Hundred Thousand Dollars ($3,500,000.00) in gross (the "Purchase Price"). Section 3. Conditions Precedent to Close of Escrow (a) As conditions precedent to the close of escrow under the Purchase and Sale Agreement, Car Max shall: (i) Obtain a parcel map from the City in compliance with National City Municipal Code Title 17 and the Subdivision Map Act (California Government Code sections 66410 — 66499.58); (ii) Obtain all City, State, and Federal Permits ("Permits") required for CarMax's construction of the Project and use of the Property; (iii) Obtain all City approvals of the development standards in the City of National City Land Use Code (National City Municipal Code Title 18) ("Approvals") required for CarMax's construction of the Project and use of the Property; (iv) Complete and obtain certification of, to the satisfaction of the Authority, all environmental documents in compliance with Section 9 below; and (v) Process an amendment to the City of National City Land Use Code to allow used automobile sales in the MXD-2 zone. (b) As a condition precedent to the close of escrow under the Purchase and Sale Agreement, the Authority shall complete the purchase of the Easement from the County. Section 4. Obligations of Authority (a) During the Exclusive Negotiating Period, the Authority shall use its good faith efforts to undertake the following actions, provided that the Authority shall not incur any liability for costs or expenses incurred by CarMax to third parties in connection with the Project: (i) Work with County staff to negotiate a reduction in the cost to release the Easement from the County pursuant to the Option Agreement; 2014 Exclusive Negotiating Agreement Page 3 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (ii) Enter into an amendment to the Option Agreement with the County so that the close of escrow on the Option Agreement occurs simultaneously with the close of escrow on the Purchase and Sale Agreement; (iii) Furnish CarMax with any documents in its possession or control to assist CarMax with its due diligence; (iv) Respond in a timely manner on all submittals made by CarMax pursuant to Section 5; and (v) Work with CarMax to establish a reasonable time schedule for the negotiation of a Purchase and Sale Agreement and the completion of all necessary Approvals and Permits to implement the Project. (b) The Authority, its staff, consultants and agents agree. and such parties shall so notify any and all other parties, that during the Exclusive Negotiating Period, the Authority and its staff, consultants and/or agents shall not negotiate, discuss, or otherwise communicate with any person or entity, other than CarMax, regarding entering into a Purchase and Sale Agreement, the transactions contemplated by this ENA, the availability of the Property for development, or any other matter related to the foregoing. (c) Throughout the Exclusive Negotiating Period, Authority staff shall be available to meet with CarMax to discuss the Project and any issues pertinent to the preparation and implementation of a Purchase and Sale Agreement for the acquisition of the Property and the construction and development of the Project. (d) The land use authority is the City and the sole decision -making body for the Permits and Approvals is the City Council. The Authority will take an active role in assisting CarMax in working with the City to obtain Perniits and Approvals. The Authority's role will be that of a facilitator in the process. Section 5. Obligations of CarMax (a) During the Due Diligence, CarMax shall work with Authority staff to develop prototypical building elevations and conceptual site plans, including parking and pedestrian circulation in relation to its surroundings (collectively, "Concept Plans"). The Concept Plans shall identify building design features, including signage. (b) During the Due Diligence Period, CarMax shall deliver to the Authority a narrative which outlines sustainability and green building concepts that may be incorporated into the Project through the design, construction and operation phases. CarMax shall comply with National City Municipal Code Chapter 15.78; provided, however, that notwithstanding the foregoing, there is no requirement that the Project has to be LEED certified or certifiable. 2014 Exclusive Negotiating Agreement Page 4 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (c) During the Due Diligence Period, CarMax shall perform, or cause to be performed, the necessary studies to determine what environmental documents, if any, are necessary to comply with the California Environmental Quality Act ("CEQA") in compliance with Section 9 below. CarMax is responsible for the costs of the studies. (d) During the Permitting Period, CarMax shall use due diligence in its effort to obtain a parcel map for the Overall Site and shall keep the Authority apprised of its progress. CarMax is responsible for all costs associated with the parcel map. (e) During the Permitting Period. CarMax shall use due diligence in its effort to obtain all required Permits and Approvals and shall keep the Authority apprised of its progress. CarMax is responsible for all costs associated with the Permits and Approvals relating to the Property and the Project. (0 During the Permitting Period, CarMax shall, if applicable, apply to other federal and state agencies for all required permits including, but not limited to, the United States Army Corps of Engineers, the Regional Water Quality Control Board, the California Department of Fish and Game, the Federal Emergency Management Agency, and the California Department of Transportation. CarMax is responsible for all costs associated with required federal and state permits. (g) During the Permitting Period. CarMax shall complete and obtain certification of, to the satisfaction of the Authority, all environmental documents in compliance with Section 9 below. Section 6. Purchase and Sale Agreement Within the first sixty days of the Initial Negotiation Period, the Authority shall deliver to CarMax a draft Purchase and Sale Agreement. The Parties acknowledge and agree that during the term of this Agreement, the Parties shall use their respective good faith efforts to negotiate and enter into a Purchase and Sale Agreement, which shall include, but not be limited to, the following: (a) A provision conveying the Property from the Authority to CarMax; (b) A provision stating that the Authority will convey the Site to CarMax in its "as -is" condition and that CarMax will defend and indemnify the Authority and its respective agents and representatives with respect to the physical condition of the Property, including any environmental contamination; (c) A provision requiring CarMax, at its sole cost, to (i) cause any environmental remediation of the Property as may be required for the construction and operation of the Project and (ii) obtain all Permits and Approvals relating to the construction and operation of the Project; and 2014 Exclusive Negotiating Agreement Page 5 of 1 1 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (d) A provision ensuring that CarMax will comply with the National Pollutant Discharge Elimination System ("NPDES") Municipal Permit and the Water Quality Improvement Plan ("WQIP") pursuant to the Municipal Permit. Section 7. CarMax Deposit Within ten days after full execution of this ENA by the Authority, CarMax shall deposit into escrow a deposit in the amount of Twenty -Five Thousand Dollars ($25,000.00) in the form of a wire payment, ACH, or any other form that is acceptable to the Authority ("Good Faith Deposit"). The purposes of the Good Faith Deposit are (i) as consideration to the Authority for exclusively negotiating with CarMax for the Property, and (ii) to ensure that CarMax proceeds diligently and in good faith to perform all of CarMax's obligations under this ENA. The Good Faith Deposit may be applied towards the Purchase Price. Any interest accrued on the Good Faith Deposit shall be the property of the Authority and shall be retained by the Authority. The Good Faith Deposit shall be returned to CarMax at the time and in the event of any of the following: (a) At the expiration of the Due Diligence Period; provided that CarMax has diligently performed and has completed all of its applicable obligation in the ENA; (b) During the Permitting Period if CarMax is denied the Permits, Approvals or the parcel map, or if CarMax is unable to obtain certification of the environmental document required pursuant to Section 9, after diligently pursuing the certification; or (c) Authority. In the event the ENA is terminated pursuant to Section 10 due to a breach by the Section 8. No Acquisition CarMax acknowledges and agrees that it has not acquired, nor will it acquire, by virtue of the terms of this Agreement, any legal or equitable interest in the Property from the Authority. Section 9. Environmental CarMax shall be responsible to perform any necessary studies and to prepare, and cause to be certified, any necessary supplemental or subsequent environmental documents to the FEIR for the Project in full compliance with CEQA. CarMax shall be responsible for all reasonably necessary costs associated with carrying out the obligations under CEQA. Section 10. Termination (a) Either Party may terminate this Agreement if the other Party fails to comply with and perform in a timely manner in any material respect the provisions to be performed by that Party. The Party wishing to terminate shall give thirty days written notice to the other Party 2014 Exclusive Negotiating Agreement Page 6 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC specifying any such failure to comply with the terms of this Agreement. The Party wishing to terminate shall not terminate this Agreement if the other Party cures the deficiency(ies) specified in the notice within thirty days after delivery of the notice. (b) If CarMax determines that either the Property or the Project are not suitable or feasible for any reason, on or before the last day of the Due Diligence Period, or if CarMax is unable to obtain Permits or Approvals, after diligently working to obtain the Permits and Approvals, as it deems necessary in its sole discretion within the Permitting Period, or in the event that the closing conditions set forth in the Purchase and Sale Agreement have not been satisfied, then CarMax may send written notice of such determination to the Authority, and this Agreement shall immediately terminate, except for those provisions that expressly survive termination. Section 11. Effect of Agreement Notwithstanding any other provision of this ENA, the Parties expressly acknowledge and agree as follows: Except for the Authority's obligations in Sections 4, and its obligation to negotiate the terms of the Purchase and Sale Agreement in good faith, none of the matters described in this Agreement as a purported commitment or obligation of the Authority shall have any effect unless and only to the extent such matters are expressly set forth in a Purchase and Sale Agreement or other written agreement duly authorized and approved by the Parties. Notwithstanding any provision of this Agreement to the contrary, CarMax acknowledges and expressly agrees as follows: (a) That this Agreement does not obligate the Authority in any way to approve, in whole or in part, any of the matters described in this Agreement, including, without limitation, matters pertaining to the conveyance of land, land use entitlements or approvals, permits, waivers, or reduction of fees, development or financing of the Property, or any other matters to be acted on by the Authority, as applicable; (b) That all such matters shall be considered and processed by the Authority in accordance with all otherwise applicable Authority and City requirements and procedures; (c) Except as may be expressly set forth in this Agreement, that the Authority reserves all rights to approve, disapprove, or approve with conditions, all such matters in its sole discretion; (d) Upon the execution of a Purchase and Sale Agreement by the Parties, this Agreement shall be null and void and of no effect and shall be superseded by the terms and conditions of the Purchase and Sale Agreement; (e) The Parties shall promptly commence the good faith negotiation of a Purchase and Sale Agreement upon execution of this Agreement by the Authority. 2014 Exclusive Negotiating Agreement Page 7 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC Section 12. Governing Law This Agreement and the legal relations between the Parties shall be governed by and construed and enforced in accordance with the laws of the State of California. Section 13. Entire Agreement This ENA constitutes the entire agreement of the Parties with respect to the Property and the Project. There are no agreements or understandings between the Parties and no representations by either Party to the other as an inducement to enter into this Agreement, except as expressly set forth in this Agreement. All prior negotiations between the Parties are superseded by this Agreement. This Agreement may not be altered, amended, or modified except by a writing executed by both Parties. Notwithstanding anything provided to the contrary, whether expressed or implied, neither Party shall have any obligation to enter into a Purchase and Sale Agreement. Neither Party, nor its officers, members, staff, or agents have made any promises to the other Party to this Agreement other than to exclusively negotiate in good faith during the Exclusive Negotiating Period, and no statements of either Party or its officers, members, staff, or agents as to future obligations shall be binding upon the Parties until a Purchase and Sale Agreement has been approved by CarMax and the governing body of the Authority, after a noticed public hearing, and has been duly executed by the Parties. Section 14. Prohibition against Assignment CarMax shall not assign all or any part of this Agreement without the prior written approval of the Chairman of the Authority. Such approval shall be within the reasonable discretion of the Chairman of the Authority in light of financial and other pertinent considerations. Section 15. Notices Any notice which is required or which may be given pursuant to this Agreement may be delivered or mailed to the Party to be notified, as follows: (a) To CarMax: CarMax Auto Superstores California, LLC, or its assignee 12800 Tuckahoe Creek Parkway Richmond, VA 23238 Attn: JM Dixon Phone: 804-747-0422 x4326 Fax: 804-935-4547 Email: jm dixon@carmax.com 2014 Exclusive Negotiating Agreement Page 8 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, Li.0 (b) To the Authority: City of National City Parking Authority City Manager's Office 1243 National City Boulevard National City, CA 91950-4301 Attn: Brad Raulston Phone: 619-336-4250 Fax: 619-336-4327 Email: braulston(cnationalcityca.gov All notices required or permitted hereunder shall be sent by certified mail, return receipt requested, postage prepaid, Federal Express or other comparable overnight delivery service, or by facsimile (provided that confirmation thereof is delivered by certified mail or overnight delivery service providing for delivery against receipt). Section 16. Public Hearing Any Purchase and Sale Agreement that may be negotiated between the Parties, and any related matters pertaining to the Property or the Project, are subject to consideration at a public hearing by the Authority. Nothing in this Agreement shall commit or be construed as committing the Authority to approve any Purchase and Sale Agreement or any other matter pertaining to the Property or the Project. Section 17. Counterparts This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, and all of which, together, shall constitute one and the same instrument. Section 18. Force Majeure Neither Party shall be in default of this Agreement if its performance hereunder is delayed, prohibited, or prevented because of conditions beyond such Party's control, including without limitation, acts of God, governmental restriction, strike, war, insurrection, litigation or administrative proceedings or the threat thereof, initiatives, referenda, environmental conditions, riots, floods, earthquakes, fires, casualties, severe weather or acts of the other Party ("Force Majeure Delay"). At such Party's option, (a) the Exclusive Negotiating Period may be extended for each day of the Force Majeure Delay with the other Party's consent, in its reasonable discretion, or (b) this Agreement shall terminate, except for those obligations that expressly survive termination. 2014 Exclusive Negotiating Agreement Page 9 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC Section 19. Specific Performance Subject to CarMax's right to terminate this Agreement pursuant to Section 10, CarMax's exclusive remedy for an uncured Authority default under this Agreement is to institute an action for specific performance of the terms of this Agreement. In no event shall CarMax have the right, and CarMax's expressly waives the right, to seek monetary damages of any kind, including but not limited to actual damages, economic damages, consequential damages, or lost profits, from the Authority in the event of a default by the Authority under this Agreement or any action related to this Agreement. Section 20. Indemnity CarMax agrees to defend, indemnify and hold harmless the Authority and the City of National City, their officers, employees, members, agents, and representatives against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of CarMax's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the Authority or the City, their agents, members, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Section 21. No Obligation by Authority of the City of National City Nothing in this Agreement shall obligate or be deemed to obligate the Authority or the City to approve or execute a Purchase and Sale Agreement, or to convey any interest in any portion of the Overall Site to CarMax. The parties understand and agree that the Authority and the City cannot be obligated to approve or execute a Purchase and Sale Agreement or to convey any interest in any portion of the Overall Site to CarMax unless and until, among other legal requirements and as applicable, (i) CEQA requirements are met, and (ii) a Purchase and Sale Agreement satisfactory to the Authority is first negotiated, executed by CarMax, approved by the Authority and/or the City Council, in each of their sole discretion, after duly noticed public hearing, and executed by the Authority and/or the City, as appropriate. Section 22. Limitations of this Agreement Nothing contained in this Agreement shall constitute a waiver, amendment, promise or agreement by the Authority or the City (or any of its departments or boards) as to the granting of any approval, permit, consent or other entitlement in the exercise of the Authority's or the City's regulatory capacity or function. CarMax acknowledges and agrees that no Authority or City staff, consultant, agent, or member of the Authority Board or the City Council has the authority 2014 Exclusive Negotiating Agreement Page 10 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC to bind the Authority or the City. The final form of any proposed Purchase and Sale Agreement to be negotiated may contain matters not contemplated by this Agreement, including, but not limited to, matters necessary to accommodate compliance with the law, including without limitation CEQA. IN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the Effective Date. The later date on which the duly authorized representative(s) of each Party (excluding their legal counsel) has executed this Agreement shall be inserted as the Effective Date in the Preamble of this Agreement. PARKING AUTHORITY OF THE CITY OF NATIONAL CITY By: Ron Morrison, Chairman APPROVED AS TO FORM: Claudia Silva Legal Counsel for the Parking Authority of the City of National City 2014 Exclusive Negotiating Agreement CARMAX AUTO SUPERSTORES CALIFORNIA, LLC a Virginia limited liability company By: K. Douglass Moyers Vice President Page 1 1 of 1 1 Parking Authority of the City of National City and CarMax Auto Superstores California. LLC Exhibit A Legal Description "LOT 14 OF THE PLAZA BONITA SHOPPING CENTER, IN THE CITY OF NATIONAL CITY, IN THE COUNTY OF SAN DIEGO, IN THE STATE OF CALIFORNIA, ACCORDING TO THE MAP THERE OF MAP 10337 FILED IN OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO IN THE STATE OF CALIFORNIA ON 24 FEBRUARY 1982". 2014 Exclusive Negotiating Agreement Page 12 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC RESOLUTION NO. 2014 — 1 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN EXCLUSIVE NEGOTIATING AGREEMENT BY AND BETWEEN THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AND CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, FOR A 9.5 ACRE PARCEL LOCATED AT THE SOUTHWEST CORNER OF SWEETWATER ROAD AND BONITA CENTER ROAD (PARCEL NO. 564-471-11) WHEREAS, the Parking Authority of the City of National City ("Parking Authority") is the owner of a 15.08-acre parcel of land located at the southwest corner of Sweetwater Road and Bonita Center Road (Parcel No. 564-471-11) and Carmax Auto Superstores California, LLC ("CarMax") is desirous of acquiring approximately 9.5 acres of the site on which it intends to construct and operate a CarMax Superstore, in accordance with plans and specifications subject to approval by the Authority; and WHEREAS, the Parking Authority and CarMax desire to enter into an agreement to initiate exclusive negotiations to allow CarMax to undertake its due diligence activities regarding the property, and to allow the Parking Authority to work with the County for the release of the an open space easement on the site, with the objective of subsequently entering into a mutually acceptable purchase and sale agreement for the property. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute an Exclusive Negotiating Agreement by and between the Parking Authority and CarMax Auto Superstores California, LLC., for a 9.5 acre parcel located at the southwest corner of Sweetwater Road and Bonita Center Road (Parcel No. 564-471-11). The Exclusive Negotiating Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 21st day of October, 2014. Ron Morrison, Chairman ATTEST: Leslie Deese, Secretary APPROVED AS TO FORM: Claudia Gacitua Silva Legal Counsel CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk CARMAX AUTO SUPERSTORES CALIFORNIA Exclusive Negotiating Agreement Denise Davis (Planning) Forwarded Copy of ENA to CarMax