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Home My WebLink About2015 CON PA Carmax Auto Superstores - Access AgreementACCESS AGREEMENT (CarMax, National City, California) This Access Agreement ("Agreement") is entered into as of April q , 2015 (the "Effective Date") by and between the Parking Authority of the City of National City, a public body corporate and politic ("Authority") and CarMax Auto Superstores California, LLC, a Virginia limited liability company ("CarMax"). RECITALS A. The parties hereto are negotiating for the sale by the Authority and the acquisition by CarMax of all or a portion of that certain approximately 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 "Site"). B. In connection therewith, the parties entered into that certain Exclusive Negotiating Agreement dated as of October 21, 2014, and are in the process of negotiating an Option Agreement whereby the Authority would grant to CarMax an option to purchase all or a portion of the Site. C. In connection therewith, CarMax has requested permission from the Authority to be able to gain access to the Site, and the Authority is willing to grant its permission upon the terms and conditions set forth below. NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Access. The Authority shall permit CarMax, and its contractors, agents, employees and other designated representatives, at any time after the Effective Date, to gain access to the Site so that CarMax can begin its feasibility review of the Site, including without limitation, conducting such tests and studies as CarMax deems necessary in its sole discretion in order to determine the feasibility of developing the Site for CarMax's intended use (the "Due Diligence Studies"). Such Due Diligence Studies may include but not be limited to soil borings, percolation tests, test pits, environmental studies, water pressure tests, surveys, and other related investigations. 2. Term. The term of this Agreement (the "Access Term") shall be for a ninety (90) day period commencing as of the Effective Date, unless such period is terminated or extended pursuant to written agreement by both CarMax and the Authority. 1 3. Agreement. By execution of this Agreement, CarMax agrees for itself and on the behalf of its contractors, agents, employees and other designated representatives as follows: (a) That all acts and things done by CarMax on the Site will be done in a careful and reasonable manner, in accordance with all federal, state, and local laws. (b) That CarMax will enter the Site entirely at its own cost, risk, and expense. (c) That prior to the entry upon the Site by CarMax, and during the term of this Agreement, there shall be in effect and there shall be provided satisfactory evidence to the Authority of the following: 1. Commercial general liability insurance with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate, covering all bodily injury and property damage arising out of activities covered by this Agreement. The policy shall name the Authority and the City of National City ("City"), their officers, officials, agents, and employees as additional insureds, and a separate additional insured endorsement shall be provided; 2. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the Authority and the City, their officers, officials, agents, and employees as additional insureds, and a separate additional insured endorsement shall be provided; and 3. Workers' compensation insurance in an amount sufficient to meet statutory requirements. (d) That CarMax shall not permit any mechanics', material men's, or other liens of any kind or nature (the "Liens") to be filed or enforced against the Site in connection with the Due Diligence Studies. CarMax shall indemnify, defend, and hold harmless the Authority and the City from all liability for any and all liens, claims, and demands, together with costs of defense and reasonable attorney's fees, arising from any Liens. The Authority reserves the right, at its sole cost and expense, at any time and from time to time, to post and maintain on the Site, or any portion thereof, any notices of non - responsibility or other notice as may be desirable to protect the Authority and the City against liability. In addition to, and not as a limitation of the Authority's other rights and remedies under this Agreement, should CarMax fail, within ten (10) days of written request from the Authority either to discharge any Lien or to bond for any Lien, or to defend, indemnity, and hold harmless the Authority and the City from and against any loss, damage, injury, liability, or claim arising out of a Lien, then the Authority at its option, may elect to pay such Lien, or settle or discharge such Lien and any action or 2 judgment related thereto, and all costs, expenses, and attorney's fees incurred in doing so shall be paid to the Authority by CarMax upon written demand. (f) CarMax shall not be entitled to any reimbursement or repayment for any work performed upon the Site pursuant to this Agreement (g) Upon completion of the Due Diligence Studies, CarMax shall restore the Site substantially to its condition existing as of the Effective Date, except for minor clearing of vegetation necessary to perform the Due Diligence Studies. CarMax shall remove all personal property, trash, wastes and debris placed on the Site. CarMax shall leave the Site in a condition that does not create an unreasonable risk of harm to the public. 4. Permits. Prior to entering the Site, CarMax shall secure, at its sole cost and expense, all necessary permits and approvals required to perform the Due Diligence Studies, if any. CarMax understands and agrees that this Agreement does not constitute a permit or any approval that may be required. CarMax shall provide copies of all required permits or approvals to the Authority prior to entering the Site.675 5. No Real Property Interest. CarMax understands that this Agreement does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the Site to CarMax. 6. Indemnity. CarMax agrees to defend, indemnify and hold harmless the Authority and the City, and their respective officials, officers and employees, against and from any and all liability, loss, injuries to, or death of any person or persons, and all claims, demands, suits, 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 the CarMax's, or CarMax's officers, employees, or agents, entry onto the Site and the performance of the Due Diligence Studies; 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, the City, or their respective agents, officers, or employees. These indemnity, defense, and hold harmless obligations shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence that occurred during the Access Term. CarMax shall not be liable for any release of any hazardous materials that may occur as a direct result of the Due Diligence Studies, provided that there is no negligence or willful misconduct of CarMax or CarMax's officers, employees, or agents in performing the Due Diligence Studies. 7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all such counterparts taken together shall be deemed to constitute one and the same instrument. 3 IN WITNESS WHEREOF, the Authority and CarMax have executed this Agreement as of the Effective Date. CARMAX: CarMax Auto Superstores California, LLC, a Virginia limited liability company By: K. Dou s Moyers, Vice President ,c1J\ AUTHORITY: Parking Authof the City of National City By: Appr Bv: Ron Morrison, Chairman audia Si Legal Coun -1 for the Parking Authority of thCity o National City 4 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". 5 CITY OF NATIONAL CITY OFFICE OF THE CITY ATTORNEY 1243 National City Boulevard, National City, CA 91950-4301 Claudia G. Silva • City Attorney Phone: (619) 336-4220 Fax: (619) 336-4327 TDD: (619) 336-1615 E-mail: Attorney@nationalcityca.gov TO: City Clerk DATE: January 15, 2014 FROM: Ginny Miller, Legal Ass SUBJECT: CarMax Access Agreem Attached please find an original, fully -executed Access Agreement between the City of National City and CarMax for your files. An original fully -executed copy has been provided to the attorney for CarMax. Thank you. Attachment