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HomeMy WebLinkAbout2015 CON PA CarMax Auto SuperstoresOPTION AGREEMENT (CarMax, National City, California) THIS OPTION AGREEMENT ("Agreement") is made as of this 18th day of August, 2015 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 ("the Optionee"). RECITALS A. On October 21, 2014, pursuant to Resolution No. 2014-1, the Parking Authority of the City of National City approved an Exclusive Negotiation Agreement ("ENA") between the Authority and the Optionee. A copy of the ENA is attached to this Agreement as Exhibit "A". B. Recitals "A" through "I" of the ENA are incorporated into this Agreement by this reference. C. The Authority is willing to grant to the Optionee an option to purchase the Property pursuant to the terms and conditions of this Agreement. D. The purpose of this Option Agreement is to ensure that the Parking Authority of the City of National City retains its discretion to approve or disapprove the sale of the Property until after CEQA review is completed. In addition, the purpose of this Option Agreement is to ensure that the City Council of the City of National City retains its total discretion to make modifications to the proposed discretionary approvals, adopt alternatives, impose mitigations measures, or disapprove the Project until after CEQA review is completed. AGREEMENT NOW, THEREFORE, the parties agree as follows: 1. Option. The Authority grants to the Optionee the right and option to purchase the Property from the Authority subject to all the terms and conditions set forth in this Agreement. 2. Option Consideration. The Optionee has made a Deposit in the amount of Twenty -Five Thousand Dollars ($25,000.00) as consideration for this Option. 3. Conditions Precedent. The Optionee may exercise the option to purchase the Property only after the following conditions have been met: A. The Optionee has completed any necessary environmental studies, has prepared any necessary environmental document, including but not limited to a supplemental or subsequent environmental document to the FEIR SCH #2003111073, and has submitted the final environmental document to the City for certification; and 2015 Option Agreement Page 1 of 25 Parking Authority of the City of National City and CarMax Auto Superstores Califomia, LLC B. The City Council of the City of National City has certified that the environmental document has been completed in compliance with CEQA and that the environmental document reflects its independent judgment and analysis. 4. Purchase and Sale. The Authority owns fee simple title to the Property. In consideration of the mutual covenants set forth in this Agreement, the Optionee will acquire all of the Property on the terms and conditions set forth herein, provided the Conditions Precedent in Section 3 above are satisfied. (a) Sale of the Property. The Authority agrees to sell the Property to the Optionee, and the Optionee agrees to purchase the Property from Authority, on the terms and conditions set forth herein. At Closing, the Authority shall convey the fee interest in the Property to the Optionee by recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title Policy (as defined below) to the Optionee at Closing. (b) Possession of the Property. The Authority shall deliver possession of the Property to the Optionee at Closing, subject only to the Title Exceptions, all as defined below. 5. Definitions. As used in this Agreement, the following terms shall have the following meanings: "Additional Acreage" means that portion of the Entire Site, if any, in excess of the Minimum Acreage which the Optionee elects to purchase pursuant to Section 7(h) of this Agreement. By way of illustration, if the Optionee elects to purchase eleven (11.0) acres, then the Additional Acreage shall be comprised of one and one-half (1.5) acres. "Agreement" means this Option Agreement between the Authority and the Optionee. "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 of 1972 (33 U.S.C. §1251, et seq.); the Safe Drinking Water Act (42 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 Insecticides and Environmental Pesticide Control 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. 2015 Option Agreement Page 2 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC "Approvals" means all approvals required for the Optionee's construction of the Project and use of the Property, including without limitation, a General Plan Amendment, Planned Development Permit and Conditional Use Permit, Tentative Parcel Map, and all of the development standards in the City of National City Land Use Code (National City Municipal Code Title 18). "Authority" means the Parking Authority of the City of National City. "Authority's Affiliates" shall have the meaning set forth in Section 11(j) of this Agreement. "Authority's Parties" shall have the meaning set forth in Section 11(k) of this Agreement. "Business Day" means any day except for a Saturday, Sunday or holiday. 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. "CEQA" means the California Environmental Quality Act, California Public Resources Code sections 21000 et. seq. "City" means the City of National City. "City Council" means the City Council of the City. "Claim" or "Claims" shall have the meaning set forth in Section 11(i) of this Agreement. "Close" or "Closing" means the close of Escrow as provided in this Agreement. "Closing Date" means the date on which the Closing occurs, pursuant to Section 10 of this Agreement. "Deposit" shall have the meaning set forth in Section 6(b)(1) of this Agreement. "Due Diligence Studies" means all studies, tests, evaluations, and investigations, including, but not limited to, soil borings, percolations tests, test pits, water pressure tests, surveys, Phase I and Phase II environmental studies, and other related investigations performed by, or on behalf of, the Optionee to determine the suitability of the Property for the Project. "Easement" means the easement for open space and park purposes conveyed to the County by the Authority in accordance with a Cooperation Agreement between the Authority, the City of National City and the County of San Diego 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. "Effective Date" means the date on which both the Authority and the Optionee have fully executed this Agreement and have delivered the Agreement to the Escrow Agent. 2015 Option Agreement Page 3 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC "Entire Site" means the approximately 15.08-acre parcel identified as County Assessor's Parcel Number 564-471-11. "Escrow" means the escrow depository and disbursement services to be performed by the Escrow Agent pursuant to the provisions of this Agreement. "Escrow Agent" means Amy D. Hiraheta at Chicago Title Company, National Projects Division, 725 South Figueroa St., Suite 200, Los Angeles, CA 90017. "FEIR" means the Final Environmental Impact Report for the National City Costco Wholesale Project, SCH #2003111073, November 2007, including the Mitigation Monitoring and Reporting Program and the Statement of Overriding Considerations, certified by the City Council of the City of National City on November 20, 2007 pursuant to Resolution No. 2007-259. "Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple title to the Property from the Authority to the Optionee, in a form reasonably acceptable to the Authority and the Optionee. "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 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean Water Act of 1972 (33 U.S.C. §1251, et seq.); the Toxic Substances Control Act (15 U.S.C. §2601, et seq.); the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); or under any other Applicable 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 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, 117690, or 39655 of the California Health and Safety Code. (4) Those substances included within the definitions of "Oil" listed or identified in the Clean Water Act of 1972, 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. 2015 Option Agreement Page 4 of 25 Parking Authority of the City of National City and CarMax Auto Superstores Califomia, LLC (6) Those substances listed by the State of California as a chemical known by the State to cause cancer or reproductive toxicity pursuant to §25249.8 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. (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 Insecticides and Environmental Pesticide Control 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.), or the Nuclear Waste Policy Act (42 U.S.C. §10101 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. 2015 Option Agreement Page 5 of 25 Parking Authority of the City of National City and CarMax Auto Superstores Califomia, LLC "Improvements" means collectively: (i) any and all buildings, structures and improvements, of any kind whatsoever, located at or affixed to the Property; (ii) all rights, privileges and easements appurtenant to the Property, if any, including, without limitation, all minerals, oil, gas and other hydrocarbon substances on and under the Property, if any; and (iii) all development rights, air rights, and water rights if any, relating to the Property. "Minimum Acreage" means that portion of the Entire Site comprised of 9.5 acres, the general location of which is shown on the site map attached as Exhibit "B". "Option to Purchase Agreement" means the Option to Purchase Agreement between the Authority and the County of San Diego, approved by the Board of the Parking Authority of the City of National City pursuant to Resolution No. 2007-5 on March 20, 2007, which sets forth the terms of an option whereby the Authority could purchase the Easement from the County. "Optionee" means CarMax Auto Superstores California, LLC, a Virginia limited liability company; provided, however, if it assigns its interest in this Agreement pursuant to Section 15 of this Agreement, then the term "Optionee" shall mean such assignee. "Permits" means all permit's required for the Optionee's construction of the Project and use of the Property, including without limitation, all Federal, State, and local permits, permits required by the United States Army Corps of Engineers, the Regional Water Quality Control Board, the California Department of Fish and Wildlife, the Federal Emergency Management Agency, the California Department of Transportation, and the National City Municipal Code. "Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions in the Title Policy; (ii) real property taxes and assessments which are a lien but not yet payable; and (iii) all applicable building, zoning and use restrictions and/or regulations of the City, San Diego County or the State of California. "Project" means the construction and operation of a CarMax Superstore with related parking and landscaping. "Property" means that certain real property located at the southwest corner of Sweetwater Road and Bonita Center Road, in the City of National City, California, comprised of the Minimum Acreage and, if applicable, the Additional Acreage, and the Improvements, if any, located thereon. The Parties acknowledge that for the purposes of this Agreement, the term "Property" means all or that portion of the Entire Site the Optionee elects to purchase pursuant to Section 7(h) of this Agreement. Optionee shall provide the Authority with an updated site plan and specific, legal description of the Property at the time it submits its complete application as set forth in the Schedule of Performance. "Purchase Price" shall have the meaning set forth in Section 6(a) of this Agreement. "Residual Parcel" means the remainder of the Entire Site which is not included in the Property. 2015 Option Agreement Page 6 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC "Title Policy" is defined in Section 7(d) of this Agreement. 6. Purchase Price. (a) Total Purchase Price. The purchase price to be paid by the Optionee for the Property (the "Purchase Price") shall be the sum of (i) Three Million Five Hundred Thousand Dollars ($3,500,000.00) for the Minimum Acreage, (ii) Five and 91/100 Dollars ($5.91) per square foot for up to one and one-half (1.5) acres of Additional Acreage, and (iii) Seven and 15/100 Dollars ($7.15) per square foot for any Additional Acreage in excess of one and one-half (1.5) acres. By way of illustration, (1) if the Property is comprised of eleven (11.0) acres, then the Purchase Price for the Property shall be Three Million Eight Hundred Eighty -Six Thousand One Hundred Fifty - Nine and 40/100 Dollars ($3,886,159.40) (i.e., $386,159.40 for the Additional Acreage), and (2) if the Property is comprised of twelve (12.0) acres, then the Purchase Price for the Property shall be Four Million One Hundred Ninety -Seven Thousand Six Hundred Thirteen and 40/100 Dollars ($4,197,613.40) (i.e., $386,159.40 for the first one and one-half (1.5) acres of Additional Acreage and $311,454.00 for the next one (1.0) acre of Additional Acreage). (b) Deposit; Liquidated Damages. (1) Deposit. The Optionee has made a deposit (the "Deposit") into Escrow of Immediately Available Funds in the amount of Twenty -Five Thousand Dollars ($25,000.00). The Deposit shall be credited against the Purchase Price. If the Optionee elects to terminate this Agreement prior to the expiration of the Permitting Period pursuant to Section 8(b), then the Deposit shall be immediately returned by Escrow Agent to the Optionee. At Closing, the Deposit shall be released by Escrow Agent to the Authority. The Deposit, and any interest earned on the Deposit, shall be credited in favor of the Optionee against the Purchase Price as set forth in Section 6(c), below. (2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE REFUNDABLE TO THE OPTIONEE AS MAY BE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF THE OPTIONEE'S DEFAULT HEREUNDER, THE SOLE REMEDY OF THE AUTHORITY SHALL BE TO TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO THE OPTIONEE AND ESCROW AGENT, WHEREUPON THE AUTHORITY SHALL RETAIN THE DEPOSIT(S) ACTUALLY DEPOSITED BY THE OPTIONEE INTO ESCROW AS LIQUIDATED DAMAGES (AND THE AUTHORITY 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 AUTHORITY'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 6AND 7 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE AUTHORITY'S ACTUAL DAMAGES IN THE EVENT OF THE OPTIONEE'S DEFAULT HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE PROVISIONS OF 2015 Option Agreement Page 7 of 25 Parking Authority of the City of National City and CarMax Auto Superstores Califomia, LLC 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 AUTHORITY 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 TERMIN OF THIS AGREEMENT. u ority's nitials Optionee's Initials ," (c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1) Business Day prior to the Closing Date, the Optionee shall cause Immediately Available Funds to be delivered to the Escrow Agent in an amount of equal to the Purchase Price, minus the Deposit. (d) Disbursement to the Authority. Immediately after the Closing, the Escrow Agent shall disburse to the Authority the funds that the Authority is entitled to receive under this Agreement. 7. Due Diligence Period. (a) Investigations. Commencing on the Effective Date, the Optionee shall have 270 days in which to conduct Due Diligence Studies. The Authority grants to the Optionee the right to enter onto the Property for the sole purpose of conducting the Due Diligence Studies. The Optionee agrees to defend, indemnify and hold harmless the Authority and the City of National 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 Optionee's, or the Optionee's officers, employees, or agents, entry onto the Property 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, 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 Due Diligence Period. The Optionee shall not be liable for any release of Hazardous Materials that may occur as a direct result of the Due Diligence Studies, provided that there is no negligence or willful misconduct of the Optionee or the Optionee's officers, employees, or agents in performing the Due Diligence Studies. 2015 Option Agreement Page 8 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC If the Optionee does not purchase the Property, the Optionee shall restore the Property substantially to its condition existing immediately prior to the Due Diligence Studies, except for minor clearing of vegetation reasonably necessary for the performance of the Due Diligence Studies. At the expiration of the Due Diligence Period, the Optionee shall have the right, in its sole and absolute discretion, to terminate this Agreement by written notice given to the Authority and the Escrow Agent on or before the expiration the Due Diligence Period. If the Optionee terminates the Agreement at this time, the Optionee shall be entitled to the return of the Deposit from the Escrow Agent, and the parties shall be relieved of liability to each other except as specifically set forth herein. The Optionee acknowledges that the Entire Site has been unused and unfenced for an unknown period of time preceding its ownership by the Authority. The Optionee acknowledges that there have been reports of illegal transient encampments, and there is a possibility that unpermitted dumping or release of substances, including, without limitation, Hazardous Materials, may have occurred. The Authority has no knowledge of any such activities, but the Optionee shall undertake sufficient Due Diligence Studies and investigations as necessary to fully satisfy itself of the condition of the Entire Site. (b) Environmental Document(s). The Optionee shall, at its expense, but subject to reimbursement as set forth herein, prepare, or cause to be prepared, any necessary environmental document(s), including but not limited to a new environmental impact report if applicable, deemed necessary or desirable by the Optionee in order to comply with the provisions of CEQA. Promptly following the preparation thereof, the Optionee shall submit the CEQA document(s) to the City. If the Property is less than the Entire Site, the Optionee shall include as a part of its CEQA document(s) the proposed development on the Residual Property, and the Authority shall fully cooperate with the Optionee to provide the necessary information with respect thereto when and as needed. The Authority shall reimburse the Optionee for the Authority's pro rata share of the costs incurred by the Optionee to prepare the CEQA document(s) pursuant to this provision, which reimbursement shall be made through a credit at Closing, and the Authority shall defend such reimbursement against any challenges. If any challenge is made in part or solely with respect to the proposed development on just the Residual Property, the Authority will defend such partial or sole challenge against the Residual Property, as the case may be, at the Authority's sole cost and expense. Other than as set forth in the immediately preceding sentence, Optionee shall, at its sole cost and expense, defend any challenge to the CEQA document(s) prepared. For purposes of the reimbursement, the Authority's pro rata share shall be deemed to be a fraction, the numerator of which shall be the number of square feet comprising the Residual Parcel and the denominator of which shall be the number of square feet comprising the Entire Site. The Parties acknowledge that inclusion of a proposed development on the Residual Property in the CEQA document(s) adds value to the Authority's Residual Property beyond the cost of the CEQA document(s) preparation. (c) Survey. The Optionee shall, at its expense, obtain a current survey of the Property, prepared by a surveyor or civil engineer duly licensed in the State of California. (d) Title Policy. The Authority shall pay the cost of 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 2015 Option Agreement Page 9 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC is vested in the Optionee subject only to the Permitted Exceptions. The Title Policy shall be obtained through Chicago Title Company. The Optionee may obtain an ALTA Owner's Policy of Title Insurance, in which event the Optionee shall pay the cost difference between the cost of the ALTA Owner's Policy of Title Insurance and the cost of a CLTA Owner's Policy of Insurance. (e) Concept Plans. The Optionee shall work with the Authority to develop prototypical building elevations and conceptual site plans, including parking and pedestrian circulation in relation to its surrounding. The Concept Plans shall identify building design features, including signage. (f) Sustainability. The Optionee 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. The Optionee shall comply with National City Municipal Code Chapter 15.78; provided, however, that notwithstanding the foregoing, there is no requirement that the Project be LEED certified or certifiable. (g) Schedule of Performance. Exhibit "C" attached hereto sets forth the agreed upon Schedule of Performance. The Schedule of Performance may be revised from time to time as may be mutually agreed upon in writing between the Optionee and the Authority. The City Manager, or designee, shall have the authority to approve revisions to the Schedule of Performance on behalf of the Authority. (h) Size and Dimensions of the Property. Prior to the expiration of the Due Diligence Period, the Optionee shall deliver to the Authority an exhibit depicting the size and dimensions of the Property, and, if applicable, the Residual Parcel to be used to develop the Tentative Parcel Map. The size and dimensions of the Property shall be determined by the Optionee based upon its good faith determination of the total size of the property needed to accommodate and support the Project which it intends to construct on the Property (including without limitation, any property required for detention or retention ponds), but without including any additional or surplus property which would not be needed for the Project; provided however that (i) the Property shall be comprised of not less than the Minimum Acreage, and (ii) the Planning Commission, as the sole decision -making body for the Tentative Parcel Map, has complete discretion to make modifications to, or to disapprove, the Tentative Parcel Map. 8. Permitting Period. (a) The Optionee shall have 365 days after the expiration of the Due Diligence Period in which to obtain all necessary Permits, Approvals, and the Tentative Parcel Map. Notwithstanding the foregoing, if the Optionee is pursuing the Permits, Approvals, and the Tentative Parcel Map in good faith but is unable to obtain the Permits, Approvals, and the Tentative Parcel Map prior to the expiration of the Permitting Period, the Optionee shall have the right to extend the Permitting Period by up to three (3) successive thirty (30) day periods, upon prior written notice to the Authority. (b) If the Optionee is unable to obtain all the necessary Permits, Approvals, and the Tentative Parcel Map prior to the expiration of the Permitting Period, the Optionee shall have the 2015 Option Agreement Page 10 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC right, in its sole and absolute discretion, to terminate this Agreement by written notice given to the Authority and the Escrow Agent on or before the expiration the Permitting Period, provided that the Optionee has diligently and in good faith worked to obtain the Permits, Approvals, and the Tentative Parcel Map . If the Optionee terminates the Agreement at this time and the Optionee has diligently and in good faith worked to obtain the Permits, Approvals, and the Tentative Parcel Map, the Optionee shall be entitled to the return of the Deposit from the Escrow Agent, and the parties shall be relieved of liability to each other except as specifically set forth herein. If, following the expiration of the Permitting Period, the Optionee elects not to proceed with the purchase of the Property, the Authority shall retain the Deposit as liquidated damages as its sole and absolute remedy pursuant to Section 6(b)(2) of this Agreement. (c) The Optionee shall be liable for the costs of obtaining all of the Permits and Approvals, except as may be specifically set forth herein. (d) The Authority represents to the Optionee that the sole decision -making body for the Permits and Approvals to be issued by the City is the City Council (it being understood that certain of the Permits and Approvals may be issued by federal or state agencies). The Authority staff will assist the Optionee in obtaining the Permits and Approvals by responding to inquiries from the Optionee, attending meetings, providing information to the Optionee and providing staffs recommendations to the Optionee. However, notwithstanding the previous sentence, the City Council has complete discretion to make modifications to the Permits and Approvals, adopt alternatives, impose mitigations measures, or disapprove the Permits and Approvals. The Authority staffs role is that of a facilitator in the process. (e) The Authority represents to the Optionee that the sole decision -making body for the Tentative Parcel Map is the Planning Commission. The Authority staff will assist the Optionee in obtaining the Tentative Parcel Map by responding to inquiries from the Optionee, attending meetings, providing information to the Optionee and providing staffs recommendations to the Optionee. However, notwithstanding the previous sentence, the Planning Commission has complete discretion to make modifications to the Tentative Parcel Map or disapprove the Tentative Parcel Map. The Authority staffs role is that of a facilitator in the process. 9. Obligation to Close. The Parties' obligation to close shall be conditioned upon the satisfaction of all of the conditions set forth in this Section 9. (a) The completion of the purchase by the Authority of the Easement from the County; (b) This Agreement being formally approved by a resolution of the Parking Authority of the City of National City after a duly noticed public hearing; (c) The certification of an environmental document by the City Council; (d) The issuance of all Permits by the City Council and other appropriate authorities, and the expiration of any applicable appeal period; (e) The approval by the City Council of all of the Approvals; 2015 Option Agreement Page 11 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (f) The approval by the Planning Commission of the Tentative Parcel Map; (g) The Optionee not being in default of any of its representations or warranties under this Agreement, or any other material terms or conditions related to the Optionee; (h) The Optionee not having 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 Optionee, or commenced any proceeding relating to the Optionee under any reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect; (I) The Escrow Agent being prepared and obligated to issue the Title Policy in the Optionee's favor upon the recordation of the Grant Deed and there are no exceptions to the Title Policy, except for Permitted Exceptions; (j) The Authority not being in default under this Agreement, or any other material terms or conditions related to the Authority; (k) There exists no lease, tenancy or occupancy agreement affecting the Property; and (I) There is no 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 Optionee. 10. Closing. Closing shall occur thirty days after the expiration of the Permitting Period. The City Manager, or designee, has the authority to extend the date of Closing for two thirty -day periods. (a) At least one Business Day prior to Closing, the Authority shall deposit into Escrow the following: (1) the Grant Deed, duly executed and acknowledged, conveying fee simple title to the Property to the Optionee; (2) a duly executed certificate containing the Authority's taxpayer identification number and a statement that the Authority is not a foreign person pursuant to United States Internal Revenue Code section 1445. The affidavit shall be substantially in the form attached to this Agreement as Exhibit "D"; (3) 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; and (4) all additional documents and instruments as are reasonably required by the Optionee and/or Escrow Agent to complete the Closing. 2015 Option Agreement Page 12 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (b) At least one Business Day prior to Closing, the Optionee shall deposit into Escrow the following: (1) the Deposit, as set forth in Section 6(b)(1), above; (2) Immediately Available Funds in the amount required by Section 6(c), above; and (3) all other documents and instruments required by this Agreement or reasonably required by the Authority and/or Escrow Agent to complete the Closing. At Closing, the Authority shall deliver the Property to the Optionee as one legally platted parcel, and the Property shall be free and clear of all tenants or occupants or any other party claiming any rights in or to the Property. 11. Representations and Warranties; Waivers and Releases. When making the representations and warranties set forth in this Section 11, each party making a representation and/or warranty represents that the same are true, correct and complete as of the Effective Date and shall be and are true, correct and complete as of the Closing Date. The representations and warranties shall survive the Closing. (a) Representations and Warranties Regarding Authority. The Authority and the Optionee each 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 Authority or the Optionee, as applicable. (b) Representations and Warranties Regarding Enforceability of Agreement. The Authority and the Optionee each represents and warrants to the other that this Agreement and all documents required to be executed by them shall be valid, legally binding obligations of, and enforceable against, the Authority or the Optionee, 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) The Authority's Representations and Warranties Pertaining to Legal Matters. The Authority represents and warrants to the Optionee that: (1) As of the Effective Date and the Closing Date, the Authority 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. 2015 Option Agreement Page 13 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (d) The Authority's Representations and Warranties Pertaining to Options. The Authority represents and warrants to the Optionee that no person has any option or right of first refusal to purchase the Property or any parts thereof. (e) Material Adverse Changes. If the Authority receives any notice or knowledge of anything materially adversely affecting the Authority's representations or warranties after the Effective Date, then the Authority shall immediately notify the Optionee in writing of such fact or circumstance. (f) The Authority's Representation and Warranty Pertaining to Tenants. The Authority represents and warrants to the Optionee that no person has any lease or other lawful right to occupy the Property or any parts thereof. (g) The Authority's Representation Regarding the Option to Purchase Agreement. The Authority represents that the obligations of the Authority as the Optionee in the Option to Purchase Agreement, including but not limited to the obligation to install a vegetated buffer along the north side of the trail/walkway pursuant to Section 7 of the Option to Purchase Agreement, shall become obligations of the Optionee. A copy of the Option to Purchase Agreement is attached to this Agreement as Exhibit "E". (h) The Authority's Representation and Warranty Regarding Operation of the Property. Other than the representation in Section 11(g) above, the Authority represents and warrants to the Optionee that there are no other oral or written agreements or understandings concerning the Property by which the Optionee would be bound following the Closing. (i) The Authority's Representation Regarding Hazardous Materials. The Authority has not knowingly (i) caused or permitted to be stored, disposed of, transferred, produced or processed on the Property any Hazardous Materials; (ii) received notification of any enforcement, cleanup, removal or other governmental or regulatory actions being instituted, contemplated or threatened against it or the Property; and (iii) received notification of any claims made against the Authority by any third party or other person with respect the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from Hazardous Materials. (j) AS IS CONDITION. THE OPTIONEE ACKNOWLEDGES, REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL INDUCEMENT TO THE AUTHORITY TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN CONSIDERATION OF THE PERFORMANCE BY THE AUTHORITY OF ITS DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT THAT, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO THE AUTHORITY'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11 OF THIS AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE ON AN "AS IS, WHERE IS" BASIS. THE AUTHORITY 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 2015 Option Agreement Page 14 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC 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 THE OPTIONEE TO REZONE THE PROPERTY OR CHANGE THE USE OF THE PROPERTY; (15) THE ABILITY OF THE OPTIONEE TO ACQUIRE ADJACENT PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS 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 (THE OPTIONEE AFFIRMING THAT THE OPTIONEE HAS NOT RELIED ON THE AUTHORITY'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT THE AUTHORITY 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, THE AUTHORITY IS NOT RELEASED FROM ANY 2015 Option Agreement Page 15 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC LIABILITY TO THE OPTIONEE 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 11(j), any right waived by the Optionee and any release by the Optionee, shall only release or waive the Optionee'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 Authority and Authority's successors, assigns, officials, officers, directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and agents (collectively, the "Authority's Affiliates") or any of them. The Optionee 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 the Optionee'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 Authority's Affiliates, including without limitation persons obligated to the Authority's Affiliates, 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"). THE OPTIONEE ACKNOWLEDGES THAT THE OPTIONEE SHALL HAVE COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF 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 THE AUTHORITY'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11 OF THIS AGREEMENT. THE OPTIONEE 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 AUTHORITY HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO THE AUTHORITY'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11 OF THIS AGREEMENT. THE AUTHORITY SHALL NOT BE LIABLE FOR ANY NEGLIGENT MISREPRESENTATION OR FAILURE TO INVESTIGATE THE PROPERTY NOR SHALL THE AUTHORITY 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 THE AUTHORITY, OR ANY REAL ESTATE BROKER, AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING ON THE AUTHORITY'S BEHALF EXCEPT FOR REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN SECTION 11 OF THIS AGREEMENT. IT IS ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY THE AUTHORITY AND PURCHASED BY THE OPTIONEE SUBJECT TO THE FOREGOING. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, THE AUTHORITY IS NOT RELEASED FROM ANY 2015 Option Agreement Page 16 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC LIABILITY TO THE OPTIONEE FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS AGREEMENT. THE OPTIONEE ACKNOWLEDGES AND AGREES THAT THE OPTIONEE 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 THE OPTIONEE SHALL BE CONCLUSIVE EVIDENCE THAT: (A) THE OPTIONEE HAS FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND COMPLETELY INSPECTED) THE PROPERTY; AND (B) THE OPTIONEE ACCEPTS THE PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE FOR THE OPTIONEE'S PURPOSES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN SECTION 11 OF THIS AGREEMENT, THE OPTIONEE SHALL PERFORM AND RELY SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. THE OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THE AUTHORITY'S COOPERATION WITH OPTIONEE WHETHER BY AUTHORIZING THE RIGHT OF OPTIONEE TO ENTER ON THE PROPERTY, 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 OPTIONEE BY THE AUTHORITY 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 8 OF THIS MENT. ITY'S INITIALS (k) Indemnity and Waiver. �rl OPTIONEE'S INITIALSAir (1) Indemnity. For the purposes of this Section 11(k), 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 2015 Option Agreement Page 17 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC limitation, attorneys' fees and costs) of any kind or nature whatsoever. The definition of "Claims" shall also include, without limitation, Claims under contract law or tort law. The Optionee acknowledges that but for the Optionee's agreement to each and every provision of these Sections 11(j and k), the Authority would not have entered into the Agreement. The Optionee, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"), shall indemnify, defend, protect and hold the Authority, the City of National City, and their successors, assigns, partners, affiliates and members and all their respective officials, officers, directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and agents (collectively, "Authority Parties") harmless from and against all liability, loss, damages to property, injuries to, or death of any person or persons, including liability for response to environmental regulatory claims, and any and all Claims resulting from, related to, or based upon, whether directly or indirectly: (i) the breach by the Optionee 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 the Optionee 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; provided however, that this indemnification shall not include any Claims arising from the established sole negligence or willful misconduct of the Authority or the Authority Parties. Any defense of any or all of the Authority Parties referenced in this Section 11(k)(1) shall be at the Optionee's sole cost and expense and by counsel selected by the Optionee, subject to the reasonable approval of the indemnified person, which counsel may, without limiting the rights of any of the Authority Parties pursuant to the next succeeding sentence of this Section 11(k)(1), also represent the Optionee in such investigation, action or proceeding. If any of the Authority Parties that is being indemnified determines reasonably and in good faith that its defense by the Optionee is reasonably likely to cause a conflict of interest or is being conducted in a manner which is prejudicial to such persons interests, such indemnified person may elect to conduct its own defense through counsel of its own choosing, subject to the reasonable approval of the Optionee, and at the expense of the Optionee. It is specifically intended that each of the Authority Parties shall be third party beneficiaries of this Section 11(k). (2) Survival. The provisions of this Section 11(k) shall survive the Closing and, as applicable, the termination of this Agreement. 2015 Option Agreement Page 18 of 25 Parking Authority of the City of National City and CarMax Auto Superstores Califomia, LLC (1) Waiver of Hazardous Materials Claims. Upon Closing, the Optionee and its Successors waive any and all future Claims by the Optionee against the Authority or the Authority Parties regarding any aspect of the condition of the Entire Site, physical or environmental. (m) Waiver of Subrogation; Survival. The Optionee waives any right of subrogation as to the Authority or the Authority's Parties. Each and every provision of this Section 11 shall, except as may be expressly limited in this Section 11, survive the Closing and, as applicable, the termination of this Agreement, and, but for the Optionee's agreement to each and every provision of this Section 11, the Authority would not have executed this Agreement. 12. National Pollutant Discharge Elimination System Municipal Permit. The Optionee agrees and warrants that it will comply with the National Pollutant Discharge Elimination System Municipal Permit and the Water Quality Improvement Plan pursuant to the Municipal Permit during construction and operation of the Project. To the extent applicable to the Property the uses conducted thereon, the Optionee agrees and warrants that it will comply with Chapter 14.22 of the National City Municipal Code titled "Storm Water Management and Discharge Control". 13. 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, the Optionee may, at the Optionee's election, either: (1) Terminate this Agreement by giving written or emailed notice to the Authority and the Escrow Agent in which event all remaining funds or other things deposited in Escrow by the Optionee, including without limitation, the Deposit, shall be returned to the Optionee 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 Authority and one-half (1/2) by the Optionee; or (2) Proceed with the Closing with no reduction in the Purchase Price, in which event the Authority shall assign to the Optionee all of the Authority's rights, titles and interests to any award made for the condemnation or eminent domain action. (b) Notice. If the Authority 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 Authority shall notify the Optionee in writing. 14. Broker's Commission. The Authority and the Optionee represent that there are no real estate brokers or agents of record in this transaction, other than Don Moser of Retail Insite Commercial Real Estate, and the Authority shall pay the Don Moser a commission pursuant to a separate written agreement, a copy of which shall be furnished to the Optionee. The Authority and the Optionee each agree that, to the extent any other 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) 2015 Option Agreement Page 19 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC 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 ofthe indemnitee's choice), protect and hold harmless the other from and against any and all such claims, demands and causes of action and expenses related thereto, including, without limitation, attorneys' fees and costs. The provisions of this Section 11 shall survive the Closing or termination of this Agreement. 15. Assignment. The Optionee shall not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the Authority, which consent may be withheld or granted in the Authority's sole and absolute discretion; provided, however, the Optionee may assign this Agreement to an entity in which the Optionee has a controlling or majority interest without the prior written consent ofthe Authority provided the Optionee and such assignee execute an assignment agreement in form and substance reasonably acceptable to the Authority. 16. 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 the Optionee: and a copy to: If to the Authority: 2015 Option Agreement CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company 12800 Tuckahoe Creek Parkway Richmond, Virginia 23238-1115 Attention: K. Douglass Moyers, VP of Real Estate Email: Jason_D_Pruitt@carmax.com Phone: (804) 935-4552 Fax: (804) 935-4547 Matthew I. Lamishaw, Esq. Kennerly, Lamishaw & Rossi LLP 707 Wilshire Blvd., Suite 1400 Los Angeles, California 90017 Phone: (213) 312-1250 Fax: (213) 312-1266 Parking Authority of the City of National City City Manager's Office 1243 National City Boulevard National City, CA 91950-4301 Attn: Brad Raulston Tel: (619) 336-4250 Page 20 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC Fax: (619) 336-4327 Email: braulston@nationalcityca.gov The addresses above may be changed by written notice to the other party; provided however, that no notice of a change of address shall be effective until actual receipt of the notice. 17. Risk of Loss. The risk of loss or damage to the Property until the Closing will be borne by Optionee, due to the right of Optionee to enter onto the Property for the purpose of conducting the Due Diligence Studies. If prior to the Closing there is damage to or destruction of the Property, Optionee shall nevertheless close Escrow with the Property in such damaged condition, and the Purchase Price shall not be reduced. The Authority shall not be obligated to repair or restore the Property. Optionee may elect not to proceed with the purchase of the Property at any time following the expiration of the Permitting Period. In the event Optionee elects not to proceed post Permitting Period but prior to Closing, the Authority shall retain the Deposit as liquidated damages as its sole and absolute remedy pursuant to Section 6(b)(2) of this Agreement. 18. 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 Closing. The Authority shall pay all documentary transfer taxes. The Authority shall pay all real property taxes and assessments applicable to the period prior to the Closing, and if any such taxes are unpaid after the Closing, then the Authority shall pay them promptly and in any event within ten (10) days after Optionee's request (which shall include a copy of the relevant tax bill). Except as otherwise provided herein, in accordance with southern California custom, each party hereto shall pay all of its own costs and expenses in connection with this transaction, with the Authority to pay any transfer tax, all recording fees at Closing (except as provided herein), all costs related to clearing title objections, and one half (1/2) of any escrow fees charged by the Escrow Agent. The Optionee shall pay for the cost of the Survey and one half (1/2) of any escrow fees charged by the Escrow Agent. 19. General Provisions. (a) Governing Law. This Agreement shall be interpreted and construed in accordance with California law, without regard to any choice of law principles. (b) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (c) Captions. The captions in this Agreement are inserted for convenience of reference and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions of this Agreement. (d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, heirs and permitted assigns. 2015 Option Agreement Page 21 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC (e) Modifications and Amendments. No modification, amendment, or change to this Agreement shall be valid unless it is in writing and signed by the Authority and the Optionee. (0 Entire Agreement. This Agreement contains the entire agreement between the parties relating to Optionee's acquisition of the Property from the Authority 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 or a joint venture between the Optionee and the Authority or between any of them and any third party. (m) Recording. Neither this Agreement nor a memorandum hereof shall be recorded. (n) The Authority's Approval. Where this Agreement refers to an action or approval of the Authority, it shall mean the approval of the Authority, or designee, unless otherwise provided. (o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are 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 incorporated in this Agreement by this reference. 2015 Option Agreement Page 22 of 25 Parking Authority of the City of National City and CarMax Auto Superstores Califomia, LLC (p) Independent Counsel. The Authority and the Optionee 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 Authority and the Optionee and the advice and assistance of their respective counsel, if such counsel was retained. The fact that this Agreement was prepared or negotiated by the Authority'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 the Authority due to the fact that the Authority's counsel prepared or negotiated this Agreement in its final form. (q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations set forth in this Agreement, including without limitation, the deadline for Closing and the deadline for making the Deposit, shall all be automatically extended by one (1) Business Day for each Business Day that the Authority fails to timely provide any notice, report, materials, studies, documentation or other information required by this Agreement. (r) Capacity and Authority. All individuals signing this Agreement for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent and warrant that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. [Signatures continued on next page] 2015 Option Agreement Page 23 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. OPTIONEE: CarMax Auto Superstores California, LLC, a Virginia limited liability company By: r lass Moyers, Vice President K1, AUTHORITY: Parkingeenj}ty of the City of National City By on Morrison, Chairman Apprv-d as to For : By: Cl . la Silva Legal Counsel or the Parking Authority of the City of National City 2015 Option Agreement Page 24 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC EXHIBIT DESCRIPTION «D» LIST OF EXHIBITS Exclusive Negotiation Agreement General Site Map of Minimum Acreage Schedule of Performance Internal Revenue Code Section 1445 Certification Option to Purchase Agreement between the Authority and the County of San Diego 2015 Option Agreement Page 25 of 25 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC EXHIBIT "A" EXCLUSIVE NEGOTIATION AGREEMENT 2015 Option Agreement Exhibit "A" Page 1 of 13 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 2015 Option Agreement Exhibit "A" Page 2 of 13 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 2015 Option Agreement Exhibit "A" Page 3 of 13 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 2015 Option Agreement Exhibit "A" Page 4 of 13 (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 2015 Option Agreement Exhibit "A" Page 5 of 13 (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 Overalll 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 2015 Option Agreement Exhibit "A" Page 6 of 13 (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 tuft 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, LLC 2015 Option Agreement Exhibit "A" Page 7 of 13 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 2015 Option Agreement Exhibit "A" Page 8 of 13 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, LLC 2015 Option Agreement Exhibit "A" Page 9 of 13 (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 2015 Option Agreement Exhibit "A" Page 10 of 13 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 I 0 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC 2015 Option Agreement Exhibit "A" Page 11 of 13 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 WI-IEREOF, 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 APPROVED AS TO FORM: udia Silva Legal Couns fdr the Parking Authority of the City of National City 2014 Exclusive Negotiating Agreement CARMAX AUTO SUPERSTORES CALIFORNIA, LLC a Virginia limited liability company By: 1r�L_ K. Dougl' oyers ,Aes Vice Pre Page 11 of 11 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC 2015 Option Agreement Exhibit "A" Page 12 of 13 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 1 1 Parking Authority of the City of National City and CarMax Auto Superstores California, LLC 2015 Option Agreement Exhibit "A" Page 13 of 13 EXHIBIT "B" GENERAL SITE MAP OF THE MINIMUM ACREAGE 2015 Option Agreement Exhibit "B" Page 1 of 2 J • .�I .09"I INTERSTATE 805 2015 Option Agreement Exhibit "B" Page 2 of 2 EXHIBIT "C" SCHEDULE OF PERFORMANCE Opening of Escrow. The Parties shall open Completed. escrow with Chicago Title Company. CarMax Deposit. The Optionee shall deposit Completed. the Deposit into Escrow. Receipt — Preliminary Title Report. The Completed. Optionee shall obtain and deliver to the Authority the Preliminary Title Report and underlying documentation. Receipt — Survey. The Optionee shall prepare and submit to the Authority a Survey. Approval — Preliminary Title Report/Survey. The Optionee shall approve or inform the Authority of any title and/or survey exceptions that are not acceptable to the Optionee by delivery of a "title/survey objection letter." Approval — Preliminary Title Report/Survey. Within five (5) business days after receipt by the Authority of the "title/survey objection letter" from the Optionee. The Authority shall notify the Optionee whether it will cure the title and/or survey exceptions that are not acceptable to the Optionee. Submission — Environmental Consultant. The Within thirty (30) days after execution of this Option Agreement ("Agreement"). Optionee shall submit to the Authority and the City the name of the environmental consultant responsible for preparing the Environmental Document that it intends to use for the Authority's approval, which approval shall not be unreasonably withheld, delayed or conditioned. Approval — Environmental Consultant. The Within five (5) business days after receipt by the Authority and the City. Authority and the City shall approve or disapprove the environmental consultants. Submission — Draft Environmental Document to Authority. The Optionee shall prepare or cause to be prepared, and shall submit to the Authority and the City, the Draft Environmental Document for comment by City. Comment — Draft Environmental Document. Within ten (10) business days after receipt by the City and the Authority. The City shall comment on the Draft 2015 Option Agreement Exhibit "C" Page 1 of 2 Environmental Document and submit the comments to Optionee. Submission — Final Draft Environmental Document to the Public. The Optionee shall cause the Final Draft Environmental Document to be circulated for comments in compliance with the California Environmental Quality Act ("CEQA"). Respond — Comments on Final Draft Environmental Document. The Optionee shall prepare or cause to be prepared responses to all comments received on the Final Draft Environmental Document. Review — Responses to Comments on Final Within ten (10) business days after receipt by the Seller. Draft Environmental Document. The City shall review the responses to the comments on the Final Draft Environmental Document and shall submit its comments to Optionee. Submission — Complete Application. The Within ninety (90) days following the expiration of the Due Diligence Period. Optionee shall prepare and submit to the City a complete application for the necessary General Plan Amendment, Zoning Map Amendment, Municipal Code Amendment, Tentative Parcel Map, and Conditional Use Permit including all back-up information requested by Planning Staff. Notice of Complete Application. The Within thirty (30) days following submission of the Complete Application. applications for necessary project entitlements are determined by the City to be complete. Submission — Sustainability Narrative. The Optionee shall submit to the Authority a sustainability narrative pursuant to Section 7(0. 2015 Option Agreement Exhibit "C" Page 2 of 2 EXHIBIT "D" INTERNAL REVENUE CODE SECTION 1445 CERTIFICATION Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes (including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by the Parking Authority of the City of National City, the undersigned certifies the following on behalf of the Parking Authority of the City of National City: 1. The Parking Authority of the City of National City is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); 2. The Parking Authority of the City of National City is not a disregarded entity as defined in § 1.1445-2(b)(2)(iii) of the Code of Federal Regulations; 3 The Parking Authority of the City of National City's U.S. employer identification number is ; and 4. The Parking Authority of the City of National City's office address is CarMax Auto Superstores California, LLC understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of the Parking Authority of the City of National City. Parking Authority of the City of National City By: Date: Ron Morrison, Chairman 2015 Option Agreement Exhibit "D" Page 1 of 1 EXHIBIT "E" OPTION TO PURCHASE AGREEMENT BETWEEN THE AUTHORITY AND THE COUNTY OF SAN DIEGO 2015 Option Agreement Exhibit "E" Page 1 of 24 OPTION TO PURCHASE AGREEMENT (Open Space Easement on 15.08-acre parcel Sweetwater Road, National City, CA) THIS OPTION TO PURCHASE AGREEMENT ("Option Agreement") is made as of April 3, 2007 ("Effective Date"), by and between the COUNTY OF SAN DIEGO, a political subdivision of the State of California ("County"), and buyer, PARKING AUTHORITY of the CITY of NATIONAL CITY, a public body corporate and politic created pursuant to the Parking Law of 1949, ("Optionee"). RECITALS A. Optionee owns a 15.08-acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road in National City, California identified as County Assessor's Parcel Number 564-471-11 and more particularly described in Exhibit A ("Property"). B. In 1978 Optionee conveyed to County an easement for open space and park purposes ("Easement") over this 15.08-acre parcel. A copy of the deed conveying the Easement is attached hereto as Exhibit B. C. Optionee wishes to purchase the Easement from County and to convey to County title to a strip of land along the south end of the parcel that contains a trail/walkway. D. Except for the trail/walkway along the south end of the parcel, the 15.08- acre parcel has not been improved with park or recreational facilities and remains undeveloped. County has determined that the Easement is not required for County use. E. County is willing to grant to Optionee an exclusive option to purchase the Easement from County pursuant to the terms and conditions set forth in this Option to Purchase Agreement ("Option Agreement"). AGREEMENT NOW, THEREFORE, the parties hereto agree as follows: 1. Option. County hereby grants to Optionee the right and option to purchase the Easement from County subject to all of the terms and conditions set forth in this Option Agreement. 2. Term. The term ("Term") of this Option shall be from the Effective Date through December 31, 2007, or through December 31, 2008 if Optionee gives notice of a legal challenge pursuant to paragraph 9D. 3. Option Consideration. 1 2015 Option Agreement Exhibit "E" Page 2 of 24 A. Within 10 days of the Effective Date, Optionee shall pay to County $100 as consideration for this Option. B. The payment shall be made payable to the County of San Diego and sent or delivered to: Director, Department of General Services c/o Real Estate Services Division 5555 Overland Avenue, Suite 210 Building 2, Room 110 San Diego, CA 92123-1294 4. Conditions Precedent. Optionee may exercise this Option to purchase the Easement only after all of the following conditions have been met: A. Optionee has completed and certified an environmental impact report ("EIR") for a commercial development project on the 15.08-acre parcel that is subject to the Easement. Optionee has prepared the EIR as the lead agency under the California Environmental Quality Act, Public Resources Code Section 21000, et seq. County, a responsible agency under CEQA, has fulfilled its duties as a responsible agency as set forth in CEQA Guidelines section 15096 by, among other things, approving the sale of the Easement after County considers the EIR for the commercial development project; B. Optionee has provided County with a copy of the final EIR, the action certifying the EIR for the commercial development project (CEQA Guidelines section 15090), the findings of significant effects for the project (CEQA Guidelines section 15091), and the Statement of Overriding Considerations, if any (CEQA Guidelines section 15093); C. Optionee has provided County with a letter confirming that the City of National City changed the General Plan land use designation on the Property to a commercial designation, that the sale of the Easement is consistent with the City's open -space plan and that the transfer of title to the Walkway Area is consistent with National City's General Plan; and D. Optionee has sent via certified mail a copy of the Notice of Determination (consistent with CEQA Guidelines section 15094) to the Director of General Services at the address listed in paragraph 3B, and, at its next reasonably available meeting, as determined by County, the Board of Supervisors has confirmed that Optionee completed and certified an EIR for a commercial 2 2015 Option Agreement Exhibit "E" Page 3 of 24 development project on the Property, which confirmation will not be unreasonably withheld. 5. Purchase Price. During the Term of this Option Agreement, Optionee herein shall have the exclusive right and option to purchase the Easement from County for the price listed below, subject to the conditions precedent listed in paragraph 4. The purchase price is $3 million. Optionee may, at its sole discretion, either pay the $3 million in full upon conveyance of the Easement to Optionee or pay pursuant to the terms set forth below: A. $2 million to be paid upon conveyance of the Easement to Optionee; B. $1 million to be paid within four years after County conveys the Easement to Optionee, $500,000 of which shall be paid within the first two years. The remaining $500,000 plus all interest due shall be paid within the second two years; and C. The outstanding balance of the $1 million specified in subparagraph B above shall accrue simple interest at the rate of 5% per year starting on the date County conveys the Easement to Optionee. All payments shall be made as specified in paragraph 3B. 6. Enhancements and/or Improvements to Sweetwater Regional Park. County agrees to use the $3 million paid for the Easement for enhancements, expansion, and/or improvements to the Sweetwater Regional Park, including bicycle/recreational trails adjacent to the Park and within one mile of the Park that serve the Park (collectively, "Sweetwater Improvements"), to provide recreational opportunities consistent with open space and park uses. County agrees that use of the monies for the Sweetwater Improvements is consistent with the County's intent in accepting the Easement in 1978 for open space and park purposes. County agrees that the Sweetwater Improvements would serve the purpose of lessening any incompatibility between the Plaza Bonita Shopping Center and the Sweetwater Regional Park, and that the Sweetwater Improvements to provide passive and/or active recreational uses would serve the region in a manner similar to that originally intended by the conveyance of the Easement on the 15.08-acre parcel. 7. Buffer for Walkway. A. A trail/walkway is located on the south side of the Property. Optionee shall install or cause to be installed a vegetated buffer along the north side of the trail/walkway to screen it from the parking lot for the proposed commercial development on the Property. The buffer shall be fully installed/planted before the 3 2015 Option Agreement Exhibit "E" Page 4 of 24 proposed commercial development is open to the public. The vegetated buffer shall meet the following specifications: 1. The vegetated buffer shall be at least five feet wide and shall consist of a combination of distance and low-level screening to separate the walkway from the adjacent parking lot and commercial development. 2. Vegetation shall be of sufficient height and density to provide a visual barrier between the trail and the adjacent parking lot and commercial development. 3. Vegetation in the buffer shall consist of a combination of drought tolerant vegetation and native plant material. 4. Optionee shall provide a copy of the proposed planting plan to the County's Department of Parks and Recreation for its review and written approval before Optionee plants vegetation in the buffer. 5. The vegetated buffer shall include an irrigation system with water provided by Optionee. B. The parties will execute the Right of Entry Agreement attached hereto as Exhibit C to allow the Parking Authority or its agents, assigns, contractors or successors in interest to enter the Walkway Area to install the vegetated buffer as required by this paragraph 7, to install, monitor and maintain the retaining wall, and to monitor and remove graffiti from the retaining wall. C. If Optionee exercises this Option and Escrow closes as specified subparagraph 9C (6), this paragraph 7 shall survive the termination of this Agreement. D. A retaining wall may be constructed adjacent to the vegetated buffer as part of the proposed commercial development. Any such retaining wall will be located on the property proposed for commercial development. The retaining wall and vegetated buffer will be constructed so that plants in the buffer, such as vines, will grow on the wall. If a retaining wall is constructed, the owner of the property on which the wall is located will be responsible for maintaining the wall and removing any graffiti. Optionee shall ensure that the permit for the proposed commercial development includes a condition that requires the developer to identify a graffiti removal contractor who will be responsible for removing any and all graffiti from the retaining wall within 24-hours of its observance and/or notification by the City of National City Code 4 2015 Option Agreement Exhibit "E" Page 5 of 24 Enforcement Officer. In addition, it is unlawful for property in the City of National City to remain defaced with graffiti. Specifically, Municipal Code section 10.54.050 states, in relevant part, that "it is unlawful for any responsible party to permit property which is defaced with graffiti to remain so defaced for a period of seventy- two hours after notice of same by the city ..." 8. Transfer Title to Walkway Area to County. As part of the conveyance described in paragraph 9 below, Optionee shall transfer to County title to the area along the south end of the Property that contains the walkway and buffer ("Walkway Area"). The description of the Walkway Area is in Exhibit D attached hereto. 9. Exercise of Option. Prior to the expiration of the Term and subject to the conditions precedent in paragraph 4, Optionee may exercise the Option by taking the following actions: A. Exercise of Option. Optionee shall provide written notice of Optionee' s exercise of this Option to the Director, Department of General Services at the address specified herein. Within 10 business days after receiving the written notice from Optionee, the Director of General Services shall determine whether all conditions precedent to the exercise of this Option, as set forth in paragraph 4 above, have been fulfilled. Upon the Director's determination that all conditions precedent have been fulfilled, he shall execute a deed conveying the Easement to the Optionee on behalf of County, and shall deposit the deed with the Escrow Holder as specified below. B. Failure to Exercise Option. In the event Optionee does not exercise the Option prior to the expiration or earlier termination of the Term, or any extension thereof, or if Optionee cancels Escrow or Escrow does not close, Optionee shall execute, acknowledge, and deliver to County, within thirty (30) days after County makes demand therefor, a good and sufficient quitclaim deed whereby all right, title, and interest of Optionee in the Easement is quitclaimed to County. Should Optionee fail or refuse to deliver said quitclaim deed to County, County may prepare and record a notice reciting the failure of Optionee to execute, acknowledge, and deliver such deed, and said notice shall be conclusive evidence of the termination of this Option and all right of Optionee or those claiming under Optionee in and to the Easement. C. Conveyance. 1) Opening of Escrow. Within five (5) business days after the Director makes the determination specified in paragraph 9A above, County and Optionee shall open an escrow ("Escrow") with First American Title Company, Escrow Division, or such other escrow company as may be 5 2015 Option Agreement Exhibit "E" Page 6 of 24 mutually approved in writing by County and Optionee ("Escrow Holder") for the conveyance of the Easement by County to Optionee and the Walkway Area by Optionee to County. Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement is delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify County and Optionee in writing of the date of the Opening of Escrow promptly following the opening of Escrow. 2) Close of Escrow; Closing Date. Escrow shall close either on or before the date that is ninety (90) days after the Opening of Escrow, or five (5) business days after Optionee's notice to County and escrow company requesting to close escrow , whichever is sooner, ("Close of Escrow" or "Closing Date"),provided that: (i) Optionee has not given written notice pursuant to paragraph 9D rescinding the exercise of the Option and cancelling Escrow; and (ii) the Closing Date shall occur before the expiration of the Term. The terms "Close of Escrow" and/or "Closing Date" shall mean the date the deeds conveying title to the Easement and title to the Walkway Area are recorded in the Office of the County Recorder of the County of San Diego, California. 3) Escrow Instructions. This Option Agreement, together with a standard instruction of Escrow Holder, mutually acceptable to County and Optionee, shall constitute the joint escrow instructions of County and Optionee to Escrow Holder, as well as an agreement between County and Optionee. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder's standard instructions, this Option Agreement shall prevail. 4) Escrow Fees, Title Charges, and Closing Costs. Optionee shall be responsible for any and all escrow fees, recording fees, and any other costs and expenses of escrow. As a condition to the closing of this transaction, Optionee may obtain an ALTA extended owners policy of title insurance in form and substance acceptable to Optionee ("Title Policy"). Optionee shall pay for the ALTA policy. 5) Deposits into Escrow. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Optionee shall deposit or cause to be deposited with Escrow Holder the following: (i) funds as provided in 6 2015 Option Agreement Exhibit "E" Page 7 of 24 paragraph 5 hereof; (ii) any and all escrow fees and closing costs; (iii) a promissory note for $1 million with payment and interest terms as specified in paragraph 5B and C above in a form approved by County, if full payment is not made; (iv) an executed and acknowledged deed conveying title to the Walkway Area to County in a form approved by County ("Walkway. Deed"); and (v) any and all additional instruments or other documents required from Optionee (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Easement to Optionee and the Walkway Area to County. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, County shall deposit or cause to be deposited with Escrow Holder the following: (i) an executed and acknowledged deed conveying the Easement to Optionee in a form approved by Optionee ("Quitclaim Deed"); and (ii) any additional instruments' or other documents required from County (executed and acknowledged if appropriate), as may be necessary in order to effect the transfer of the Easement to Optionee and the Walkway Area to County. 6) Closing, Recording and Disbursement. On or before the Closing Date, and when Escrow Holder has received all of the documents and funds listed in subparagraph 5) immediately above, and Escrow Holder is in a position to cause the Title Policy referred to in subparagraph 4) above to be issued to Optionee, Escrow Holder shall close the Escrow by taking the following actions: (1) recording the Quitclaim Deed and Walkway Deed in the Office of the Official Records of the County of San Diego, California, and delivering the recorded Quitclaim Deed to Optionee and the Walkway Deed to County; (ii) causing the Title Policy to be issued to Optionee; (iii) delivering the Purchase Price as provided in paragraph 5 hereof to County; and delivering the $1 million promissory note described above to County, if the Purchase Price is to be paid over time. D. Legal Challenges. If a legal challenge to this Option Agreement, to the EIR for the commercial development of the 15.08-acre parcel or to any other approval related to the commercial development of the 15.08-acre parcel is filed, Optionee may: (i) give written notice to County of the legal challenge, whereupon the Term shall be deemed to be extended to December 31, 2008; and (ii) by written notice to County rescind the exercise of the Option and cancel Escrow. If Optionee rescinds the Option and cancels Escrow, Optionee shall be entitled to a refund of all funds 7 2015 Option Agreement Exhibit "E" Page 8 of 24 Optionee deposited in Escrow without penalty. Any time thereafter, but before the expiration of the Term, Optionee may re - exercise the Option by again providing the notice specified in paragraph 9A above. If Optionee re -exercises the Option, the parties shall comply with paragraphs 9A, 9B and 9C above. 10. Mitigation. County shall not be responsible for mitigating any impact related to the commercial development of the Property that is identified in the BIR for the commercial development, including any impact for the loss of open space, if any, or any impact to biological resources, if any. 11. Defense and Indemnity. Optionee shall defend and indemnify County and its agents, officers and employees (collectively, "County Parties") from any claim, action, liability or proceeding against County Parties to attack, set aside, void or annul this Option Agreement or any proceedings, acts or determinations taken, done or made pursuant to this Option Agreement. Optionee's obligation to defend and indemnify County Parties shall apply to any claim, lawsuit, action ..or challenge against County Parties alleging failure to comply with the California Environmental Quality Act or failure to comply with any other federal, state or local laws. Optionee's obligation to defend and indemnify County Parties shall include, but not be limited to, payment of all court costs and attorneys' fees, judgments and awards against County Parties, and/or settlement costs, which arise out of or are related to County's approval of this Option Agreement and/or any proceedings, acts or determinations related thereto. County shall promptly notify Optionee of any such claim, lawsuit, action or challenge and shall cooperate fully in the defense. 12. Property Disclosures by County and Optionee. County is selling this Easement in an "as -is" condition, but hereby declares to Optionee that County has no knowledge of the presence of hazardous materials, soil contamination, or underground storage tanks on the Property. Optionee is transferring title to the Walkway Area in an "as -is" condition, but hereby declares to County that Optionee has no knowledge of the presence of hazardous materials, soil contamination, or underground storage tanks on the Walkway Area. 13. General Provisions. 13.1 Administration. This Option Agreement shall be administered on behalf of County by the Director, Department of General Services, and on behalf of Optionee by the Executive Director of the Community Development Commission of the City of National City. 13.2 Assignment. Optionee shall not voluntarily or involuntarily assign, mortgage, encumber, or otherwise transfer all or any portion of Optionee's interest in this Option without County's prior written consent. To be effective, the assignee or transferee must assume Optionee's obligations hereunder. 8 2015 Option Agreement Exhibit "E" Page 9 of 24 13.3 Binding Effect. Subject to any provisions concerning assignment contained in this Option Agreement, this Option Agreement shall be binding upon and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties hereto. 13.4 Brokers and Finders. Neither County nor Optionee has engaged the services of a real estate broker, and neither shall be required to pay a brokerage commission or finder's fee with regard to the execution of this Option Agreement. Neither County nor Optionee has been represented in this transaction by a Broker or finder (collectively, "Brokers") in connection with this Option Agreement, and neither has acted in a way that would entitle any Brokers to any commission. Optionee and County agree to defend, indemnify and hold each other harmless from all claims, losses, damages, costs and expenses, including reasonable attorneys' fees, arising from or related to any assertion by any Broker contrary to the foregoing clauses where the assertion is based on the acts or alleged acts of the other party. 13.5 Entire Agreement. This Option Agreement, including Exhibits A, B, C and D and, if Optionee pays over time, the related $1 million promissory note, contain the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. 13.6 Governing Law. The Option Agreement shall be construed and enforced in accordance with the laws of the State of California. 13.7 Notices. Unless otherwise specifically provided herein, any notice or notices required or permitted to be given pursuant to this Option Agreement, may be (i) personally served on the other party by the party giving notice, in which event it shall be deemed delivered at the time of personal service; (ii) may be served by regular mail, in which event it shall be deemed delivered three (3) business clays after delivery to the United States postal carrier; or (iii) may be served by overnight courier, in which case it shall be deemed delivered the next business day. Any such notices shall be delivered to the addresses set forth below: To County: Director, Department of General Services c/o Real Estate Services Division County of San Diego 5555 Overland Avenue, Suite 210 Building 2, Room 110 San Diego, CA 92123-1294 To Optionee: Executive Director Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-3312 13.8 Time of Essence. Optionee and County hereby acknowledge and agree that TIME IS STRICTLY OF THE ESSENCE with respect to each and every term, condition, obligation and provision herein and the Option relating hereto, and the failure 9 2015 Option Agreement Exhibit "E" Page 10 of 24 to TIMELY AND FULLY perform or satisfy any of the terms, conditions, obligations or provisions of this Option Agreement shall constitute a non -curable default hereunder. 13.9 Further Assurances. County and Optionee agree to execute such other documents and take such further actions as may be needed or required to effectuate the terms, conditions, covenants, and provisions of this Option Agreement. As a responsible agency, County will, in good faith: (a) review and comment on the EIR for the commercial development project; and (b) work with Optionee to resolve any differences the parties may have as to the adequacy of the EIR, its findings, conclusions, mitigation measures and statement of overriding considerations, if any. IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement effective as of the day and year first above written. Approved as to form and legality City A r o ey By: dia Gac tua . ilva, Senior Assistan Cit Attorney Approved as to form and legality County Counsel By: RON MORRISON, Chairman Parking Authority of the City of National City By: COUNTY OF SAN DIEGO By: -JOHN U7MGT4Gl4E-- ector Department of General Services APRIL F. HEINZE, P.E., Director 10 2015 Option Agreement Exhibit "E" Page 11 of 24 • • EXHIBIT A • DESCRIPTION OF REAL PROPERTY Being a portion of Quarter Section 109, Rancho De La Nacion, Map No. 166.in the City of National City, County of San Diego, State of California, said portion being more particularly described as follows: Beginning at the most Northerly corner of Parcel 1 of Parcel Map - No. 6149 on file in the Office of the Recorder of said County; thence along the Northeasterly boundary of said Parcel Map South 66°00'06" East (South 65°55'21",East per Parcel Map 6149) 544.06 feet to the beginning of a tangent 20.00.foot radius curve concave Westerly; thence leaving said Northeasterly boundary Southerly along said curve through a central angle of 101°26'37" an arc distance of 35.41 feet to a point of compound curvature with a 295.00 foot radius curve concave. Northwesterly; thence South- westerly along said curve through a central angle of 53°21'00" an arc distance of 274.68 feet; thence along a nontangent line South 85°23'37" West 101.21 feet to the beginning of a nontangent 499.00 foot radius curve concave Southeasterly, a radial line to said point bears North 01°12'29" West; thence Southwesterly along said curve through a central angle of 26"44'40" an arc distance of 232.92 feet to a point of compound curvature with a 849.00 foot radius curve concave. Southeasterly; thence Southwesterly along said curve through a central angle of 24°00'00" an arc distance of 355.63 feet to a point of compound curvature with a 419.13 foot radius curve compound Easterly; thence Southerly along said curve through a central angle of 78°50'07" an arc distance of 576.70 feet; thence tangent to said curve South 40°47'16" East 339.82 feet; thence North 45°25'10" West 109.80 feet to the beginning of a tangent 1205.00 foot radius curve concave Southwesterly; thence Northwesterly along said curve through a central angle of 38°45'55" an arc distance of 815.28 feet to a point in the Westerly boundary of said Parcel Map No. 6149; thence along said Westerly and Northwesterly boundary of said Parcel Map the following courses; North 16°48'32" West (North 17°18'45" West record) 286.06 feet to a point in the arc of a nontangent 637.00 foot radius curve concave Southeasterly, a radial line to said point bears North 65°24'02" West; thence Northeasterly along said curve through a central angle of 30°35'03" an arc distance of 340.03 feet; thence tangent to said curve North 55°11'O1" East (North 54°40'48" East record) 582.29 feet; thence North 84°24'59" East (North 83°54'46" East record) 75.49 feet; thence North 01°09'59" West (North 01°40'12" West record) 32.85 feet; thence North 56°38'16" East (North 56°08'03" East record) 246.33 feet to the Point of Beginning. Containing 15.080 acres. • 2015 Option Agreement Exhibit "E" Page 12 of 24 RECORDiN' REQUESTED WY AND WIn:N ACCO"D. D MAIL TWIU Orr.0 OTAT:NL'n4i {MOWN MARL TAX GTATi.MPTG TO' N.+t County :of San Diego Real Property Department Anoves. 5555 Overland Avenue c,TT San Diego, California LT.+i: Z11• Title Cirdrr Escrow \n. Tax Parcel No I111111111•111MmwlmIn.mmilm I i. 1820 I ;: rii-E / P,';':':. „IPA, i="1" 779 E) HI$IT B• ',wary of San Diego fiCccrouCSTOF k ttmeat 01 Res; Property OCT 35 i 56lfu'•1i orris rrra: , Sbli DtE:O COiihr ,':ALIF, This slaw for Recorder'% use PP FEE GRANT DEED T.HF: 1:\Tl1':RSIGNE1) GRANTOR(N) DECLARE(H) • OOC1;111:NTARY TRANSFER TAX is $ ❑ computed on full walua of property conveycdlor e,•n,p"L.,i on fun vnlur law: value of liens o encumbrances remaining at time of Pale, ❑ Unincorporated Area dC Clty ,t..... ..,N 10n0.... '?.ty,........._......... anu FOR :1 VA1,1!A11LE CONSIDERATION. receipt of wh eh is heruhy acknowledged. THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY ho;•eby GRANT(S) to The County of SantDiego' an easement for open space and part: purposes over, th,! following de::eribed real property in the City of State of Califorria; National City . County of San Diego, The property described on Exhibit No hereof, and as shown as Parcel "A" on Exhibit "8" hereof, subject to the conditions as set forth on Exhibit "C" hereof,. 1 1 • Dates _crafieR zS 8 STATIC OFF CALIFORNIA, _1 S. cour•-rr or..zii� 3�•' f_0 _ I On .LL'ted.i4 _ .Af,-1�...i=before me, the under Mince, a Notary Public in and for said County and State( Terao,wlly appeared fr __1i2rSLo4 w -J. ti • known to mar to be the penmen i,ubscribed to tie, within Instrument and acknowledged thi t 7-3er:y.•xecuted the earn., Signature of Notary Bye 11 PARKING A�1T�10RfTY Kill!ci ..: _ • rno a erson, Seri t.\ THE CITY OF NATIONAL CITY FOR NOTARY SEAL OR STA;NP orrlciAL. SEAL DAVID L SHELDON .r••rJ•, NnrA:•.• r.•".1. a%Lir0"NIA i .r.• "r, rC•�rL y,i ICS ul tan DitOCI eovNTY My Commtttio0 Etpitet toe. 22, 2980 • MAT: TAR STATEMENTS TO PART/ SHOWN ON FDLL00SINC LINE; IF AO PA/MAW SHOWN, MAIL AS DIASCTt0 ABOVE Name Street Address' 1 T,^+*r..,,..•wow+.wn.,I...waw+werriMrtwiWl+01Adery+'"1'a,/JM rwlr+Piv'au. 2015 Option A't reernent I Bxhih� " „ ,; Q, .I City A State ��I--.1......imeignm • RECORDING REQUESTED IfY 18 V! 4/10 W .IIN RCCO.401:M HAIL T41u COOtANC, UNLrbn OTNLnw141• ..OWN 1.1 LOW. MAIL TAX it ATX4CNr1, TC•: .IAYC County of San Diego Ln+rXT Real Property Department A�n,Cb4 5555 Overland Avenue San Diego, California Tr to Tide Oninr No. Escrow No, Tax Parcel No. 'y 1 F.F4E.; op County or San Diego Daptitment of Rut Property OCr3i 15S i��'•i . G_tcl::rs: Sill trE:o COwhi"', 'rh)x l pen for Recnrdrr'P us1• NO FEE GIANT DEED THE l'\I)F:RSIGNED t }L- TOR(s) IDEC.LARth ) 1)OCt;MENTARV TRANSFER T'.X is FOR •..'. eumpulnd on full value of prop,•rt, conveyed, or 1 ,_) computed on toil ,ato fesM 'Mud. of lien or enrun1 mere remaining at lima of raie, G Unincorporated Arlin / City nf........ Natloflal.,,..Cj y__ VALUABL1. C0NSIDF;ItATIODT• receipt oC ‘vfliell is hereby acknowledged, THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY herrb. GRANT(s) to The County of San Diego an easement for open space and park purposes over the folfnwing described real property in the City of State cIf California: National City The property described on Exhibit "A" hereof, and as shown as Parcel "A" on Exhibit "8". hereof, :subject to the conditiors as set forth on Exhibit "C" hereof. i • . Cnunty of San Diego. This is to certify that theiinterest in real property conveyed by the 1821 foregoing deed or grant to the County of San Diego, a political corporation, is hereby accepted on behalf !of the Board of Supervisors : of said Cuunty of San DIegu!.pursuant to authority conferred by Resolution of said Board adapted on OctobE.r 12', 1976 and the Grantee i consents to recordation thereof by Its duly authorized officer. Date OCTGi3r'2.31 /97P1 By ' � 1 f1lTE4:OF CALIFORNIA pervising Real Pr et Agent cquisitiionand Re ocai on Divis•:on •Department of Real Property • 1-y ti • SS.-. (Inn' OF SAN DIEGO ) f Vr p'th1s s day of D..rd.�.r. , 1978, before me, the undersigned; a Notary + two U 111c in an?for said County and State. personally a )peared KILE MOGAN m atn to me to be CHADIM,pN and _ gaNgULTERSdN known to me -,a 6e th't SECRETARY of the • Parking_A— u�,,_{IF t ority , of the City of National cit'7talifornia, a public body corporate and polfffe, the public body that executed the within instrument and' known to me to be the persons who executed the same on behalf of said public body and acknowledged toime that said 'oublic body executed the same, pursuant to its bylaws or a resolution of its board oif directors. 1 i IN yfITNESS 111IEREOF, I have hereunto set:imy hand and aiffixed my notarial seal, the day and year in ithis rst"!""jia' •t'� oti,. 1 DAVID L SHELDON I i ¢% SEAL .. N7 PRI ►VDLIC et no. — � 'PAIN Ditt oCOUN INi oar ub is in an or sel d CountyAnd State t.N DIEGO COUNTY i Y , my Co nmiubn Willi Aug. ZZ, 1aa0 I • • 2015 option Agreefhent IMRE • r' 1;822 a '! PARCEL "A" - OPEI7 SPACE EASEMENT TO COUNTY OF 5AN DIEGO ' I Being a portion of Quarter Section 109, Rancho De La Nacion, Map No. 166 in the City of National City, County++'of San Diego, State of California, said portion being more pa'rti!cularly described as follows:: 1 1 • i I• 1 Beginning at the most Northerly corner of. Parcel 1 of Parcel Map No. 6149 on file in the Office of the Recorder of said County; thence along the Northeasterly boundary of staid Parcel Map South 66°30'06" East (South 65°55'21" East perTarcel Map 6149) 544.06 feet to the beginning of a tangent 20.00 foot radius curve concave Westerly; thence leaving said Northeasterlyjbounc'ary Southerly along said curve through a central angle ofi.101.26'37" an Ave distance of 35.41 feet to a point of compound curvature with a 295.00 foot radius curve concave; Northwesterly; thence South- wcsterly;along said curve through a central angle of 53°21'00" an arc distance of 274.68 feet; thence along a nontangent line South 85123'37" West 101.21 feet'to the beginning of•a nontangent 499.00 foot radius curve concave, Southeasterly, a radial line to said point bears North 01°12'29",West; thence Southwesterly along said.curve through a central anq1e of 264'44'40". an arc distance • of 232.92 feet to a .point of compound curvature with a 849.00 foot radius curve concave Southeasterly; thence Southwesterly along said curve through a central angle of 24°00'OOr" an arc distance of 355.63 feet to a point of compound curvature witih a 419.13 foot radius curve compound Easterly; thence Southerly along said curve through a central angle of'.78°50'07" an arc dig:tance&of 576.70 feet; thencetangent to said curve South 40'47'16" East 339.82 feet; thence North 45°25'10" West 109:80 feet to the beginning of a tangent 1205.00 foot radius curve concave Southwesterly; thence Northwesterly.alcng said curve through a central angle of 38°45'55" en arc distance of 815.28 feet to a; point in the Westerly boundary of. said Parcel Map!No. 6149; thence along said Westerly and Northwesterly boundary of sa:.d Parcel I4ap the following courses; North 16°48'32" West (North 17'18'45" West record) 23G:06 feet to a point in the arc: of a nontangent 637.00footradius curve, concave Southeasterly, a radial line to said point bears North 65°.24102" West; thence Northeasterly along said curve through a central angle of 3p°35'03" an arc distance of 340.03 feet;Ithence tangent to said curve North 55°11'01" East (North 54°40'43' East record) 582.29 feet; thence North 84°24'59" East (North 83°i54'46" East;.record) 75.49 feet; thence 'North 01°09'59" West (North 01°40'12" West record) 312.85 feet; thence North 56°38'16" East (North 56°08'03" East record) 246.33 feet to the Point of Beginning. Containing 15.080 acres. EDHIBIT yyNya;,aws.v.... r... ,...rwr..r.°° , navy b . . . •.; is 1 , + �.: � � 2015;Option Agreement ��I ,�� Exhibit "E" Page 15 of 24 ( ' y( ; • Z. 4 • .0 0" .4 • .4 tiO. 4.5/ • 4 RICK ENGINEERING COMPANY PLAT OF OPFN SPACE EASF.MENT & DEDICATION :.?..1-_-..-7-.:2.,;•3--1,-.2.1,-.0"°4•-'—i-T•=1"*, • •—• NATIONAL 'CITY & COUNTY OF SAN DIEGO L. 1 - U. .-.401OMIRRIODSMIMUSIMIllelp _ leamb— • . „ • 1.824 PARCEL "A", EASEMENT FOR: OPEN SPACE AND PARK PURPOSES CONDITIONS OF EASEMENT WHEREAS,' 1. Tne PARKING AUTHORITY OF THE CITY OF.NATIONAL CITY, CALIFORNIA warrants that it is the owner ptjtht:FEE'SIMPLE ESTATE in and to the land in the County of San Diego, State of California. described in Exhibit "A" attached hereto ("The Subject Land"); which•estate is or may be subject to real estate taxes: a3sessments, conditions, restrictions and easements all as the same may be of record, and 2. It is the desire of the Grantor and 'the County of San Diego, a political subdivision • of the S.tatelof California (hereinafter referred to as "COUNTY"), that the Subject Land remain OPEN and/or PARK and RECREATIONAL pace. NOW, THEREFORE, 1. The GRANTOR grants to the County. (A) A perpetual easement for OPEN SPACE and/or PARK and RECREATIONP.L purposes over, upon, across and under the Subject Land, and no building; structure or other thing whatsoever shall be constructed, erected, places or maintained on the Subject Land except as;exists. Grantor however reserves the right to grade Subject Land and to develop Subject Land for public park and recreational purposes subject•to County approval of such development'pricr to the construction thereof by Grantor. (B) The perpetual right, but not the obligation to enter upon the Subject Land and remove any buildings„ structures or other things whatsoever constructed, erected, placed or maintained on the Subject Land contrary to any term, covenant or condition of this easement and to do any work necessary to eliminate the effects of any excavation or placement of sand, soil, rock or gravel or any other material done or plaped on the Subject Land contrary to any term, co:renant or conditions of this easement. 2. GRANTOR covenants and agrees for himself and his successors and assigns as.followa: (A) That he shall not erect, construct, place or maintain, or permit the erection, construction, placement or maintenance of any building or structure or other thing whatsoever on the Subject Land other than such buildings, structures and other thing as may be permitted pursuant to paragraph 1.(A) immediately f)ereinabove. That he shall not use the Subject Land for any purpose except as OPEN SPACE and/or PARK and RECREATIONALIpurposes. (C) That he shall not excavate oc' grade or permit any excavating or grading .to be done, or place or allow to be placed any sand. soil, rock, gravel or other material whatsoeverI•on the Subject Land without the written permission of the County or its successors or assigns: provided, however, ,that Grantor may excavate, grade or place sand, soil, rock. gravel or other material on the Subject Land as may be permitted by the•County !pursuant to paragraph 1.(A) hereinabove. (D) That the terms, covenants and conditions set forth herein may be specifically enforced or enjoined by proceedings in the Superior Court of the State of California. "his Easement•shall bind the Grantor and his successors and assigns. Executed this.6"day of OvrO?lE% . 1978' ' PARKING AUTHOR' OF THE'CITY OF ? [ oo NAT' 1 . CALIFORNIA •• ) two Kile rgtin, ZigTTtEST: 4^:w t• (B) • Peterson, Secretary • EXEIBIT "C" muml • •a�rlr�aeti�lrr 2015 Option Agreement II II EXHIBIT C RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement ("Agreement") is effective this of 20_, by and between the COUNTY OF SAN DIEGO, ("County"), a political subdivision of the State of California, and the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic created pursuant to the Parking Law of 1949, ("Parking Authority") with reference to the following facts: RECITALS A. County owns a strip of land just west of Bonita Center Road in National City, California that includes a trail/walkway. B. Parking Authority is obligated to install, or cause to be installed, a vegetated buffer along the north side of the trail/walkway adjacent to a retaining wall that will be installed as part of the commercial development to be constructed just north of the trail/walkway. C. To allow Parking Authority or its agents, assigns, contractors or successors in interest, to enter onto County property to install the and monitor the buffer and to monitor and repair the retaining wall and to remove graffiti from it, County and Parking Authority are entering into this Agreement. NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Authority to Enter. Subject to the terms and conditions set forth below, the County hereby grants Parking Authority a right of entry over that property defined as a portion of Assessor's Parcel Number 564-471-111 as further described in Exhibit "1" attached hereto ("Walkway Area"), solely for the following purposes: a. To install, monitor and repair a vegetated buffer on the north side of the trail/walkway as specified in paragraph 7 of the Option to Purchase Agreement between the County and the Parking Authority of the City of National City; b. To monitor the retaining wall and, if necessary, repair it; and 2015 Option Agreement Exhibit "E" Page 18 of 24 c. To remove graffiti from the retaining wall. 2. Strict Construction. This Agreement shall be strictly construed, and no work other than that specifically stated herein is authorized. This Agreement is not transferable. 3. Term. This Agreement shall commence , 20_, and shall terminate on , 20_. The Assistant Director of the Department of General Services may extend the Term of this Agreement at any time by giving written notice to Parking Authority. 4. Notice Prior to Starting Work. Before starting to install the vegetated buffer, Parking Authority shall notify the Assistant Director, Department of General Services or designee in writing. Such notice shall be given at least three days in advance of the date the work is to commence. 5. Permit on Site. This Agreement shall be kept at the work site and must be shown on demand to any representative of the Department of General Services. 6. Permits From Other Agencies. Parking Authority shall secure all other permits and approvals, if any, needed to install the vegetated buffer. 7. Access. Parking Authority shall not unreasonably obstruct the flow of pedestrians or others using the Walkway Area or impede access to the Walkway Area. 8. Supervision of County. All work associated with this Agreement shall be done subject to the supervision of, and to the satisfaction of, the County. 9. Compliance With Stormwater Laws. Parking Authority's entry on to the Walkway Area is subject to federal, state and local laws regarding the discharge into the stormwater conveyance system of pollutants. Compliance with these laws may require Parking Authority to develop, install, implement and maintain pollution prevention measures, source control measures and Best Management Practices ("BMPs"). BMPs can include operational practices; water or pollutant management practices; physical site features; or devices to remove pollutants from stormwater, to affect the flow of stormwater or to infiltrate stormwater to the ground. BMPs applicable to Parking Authority's work on the Walkway Area may include a requirement that all materials, wastes or equipment with the potential to pollute urban runoff be stored in a manner that either prevents contact with rainfall and stormwater, or contains contaminated runoff for treatment and disposal. Parking Authority shall use, operate, maintain, develop, redevelop and retrofit the property, as necessary, in accordance with all applicable federal, state and local laws restricting the discharge 2 2015 Option Agreement Exhibit "E" Page 19 of 24 of non-stormwater at or from the property; and all such laws, regulations, or local guidance requiring pollution prevention measures, source control measures, or the installation or use of BMPs. Parking Authority shall develop, install, implement and/or maintain at Parking Authority's sole cost and expense, any BMPs or similar pollution control devices required by federal, state and/or local law and any implementing regulations or guidance. Parking Authority understands and acknowledges that the stormwater and non- stormwater requirements applicable to Parking Authority's work on the Walkway Area may be changed from time to time by federal, state and/or local authorities, and that additional requirements may become applicable based on changes in Parking Authority's activities or development or redevelopment by Parking Authority or County. Parking Authority shall develop, install, implement, and maintain such additional BMPs and/or other pollution control practices at the Walkway Area at Parking Authority's sole cost and expense. To the extent there is a conflict between any federal, state or local law, Parking Authority shall comply with the more restrictive provision. If County receives any fine or fines from any regulatory agency as a result of Parking Authority's failure to comply with applicable stormwater laws as set forth in this Agreement, Parking Authority shall reimburse County for the entire fine amount. 10. Care of Drainage. If the proposed work interferes with the established drainage, ample provision shall be made by Parking Authority to provide for the drainage as may be directed by the County. 11. Repair. Parking Authority shall ensure that access through and work in the Walkway Area is done in a safe and prudent manner. Parking Authority shall promptly repair and make good any damage Parking Authority causes to any portion of the Walkway Area. 12. Insurance. Parking Authority is fully self -insured for damage resulting from liability of Parking Authority or any of Parking Authority's agents or employees. If Parking Authority ceases to be self -insured during the Term of this Agreement, Parking Authority shall furnish to County proof of insurance in a form and amounts satisfactory to County. The County's requirements shall be reasonable, but shall be designed to insure protection from risks that exist when Parking Authority ceases to be self -insured. If Parking Authority enters into a contract to have any of the work that is listed in paragraph 1 above done by a third party, Parking Authority shall require the third party to have in effect for the duration of the project: (a) Commercial General Liability Insurance written on an "occurrence basis" in an amount of at ]east $1 million per occurrence and $2 million aggregate with the County of San Diego 3 2015 Option Agreement Exhibit "E" Page 20 of 24 named as an "additional insured;" and (b) statutory amount of workers' compensation insurance for the benefit of the third party's employees. 13. Defense and Indemnity. a. The County shall defend and indemnify the Parking Authority, its agents, officers and employees (collectively, referred to in this paragraph as "Parking Authority"), from any claim, action or proceeding against Parking Authority, arising solely out of the acts or omissions of County in relation to this Agreement. At its sole discretion, Parking Authority may participate at its own expense in the defense of any claim, action or proceeding, but such participation shall not relieve County of any obligation imposed by this Agreement. Parking Authority shall notify County promptly of any claim, action or proceeding and cooperate fully in the defense. b. The Parking Authority shall defend and indemnify the County, its agents, officers and employees (collectively referred to in this paragraph as "County") from any claim, action or proceeding against County, arising solely out of the acts or omissions of the Parking Authority in relation to this Agreement. At its sole discretion, County may participate at its own expense in the defense of any such claim, action or proceeding, but such participation shall not relieve Parking Authority of any obligation imposed by this Agreement. County shall notify Parking Authority promptly of any claim, action or proceeding and cooperate fully in the defense. c. The County shall defend itself, and the Parking Authority shall defend itself, from any claim, action or proceeding arising out of the concurrent acts or omissions of County and Parking Authority. In such cases, County and Parking Authority agree to retain their own legal counsel, bear their own defense costs, and waive their right to seek reimbursement of such costs, except as provided in subparagraph e below. d. Notwithstanding subparagraph c above, in cases where County and Parking Authority agree in writing to a joint defense, County and Parking Authority may appoint joint defense counsel to defend the claim, action or proceeding arising out of the concurrent acts or omissions of County and Parking Authority. Joint defense counsel shall be selected by mutual agreement of County and Parking Authority. County and Parking Authority agree to share the costs of such joint defense and any agreed settlement in equal amounts, except as provided in subparagraph e below. County and Parking Authority further agree that neither party may bind the other to a settlement agreement 4 2015 Option Agreement Exhibit "E" Page 21 of 24 without the written consent of both County and Parking Authority. e. Where a trial verdict or arbitration award allocates or determines the comparative fault of the parties, County and Parking Authority may seek reimbursement and/or reallocation of defense costs, settlement payments, judgments and awards, consistent with such comparative fault. 14. Hazardous Substances. Parking Authority shall be solely responsible for fully complying with all present or future rules, regulations, restrictions, ordinances, statutes, laws and orders of any governmental entity regarding contaminated soils, hazardous materials or environmental clean-up, regardless of whether or not the obligation to comply is on the land owner. If any hazardous substance spills, leaks or is discharged from any equipment or facility that Parking Authority brings to or installs, parks or drives on to the Walkway Area, Parking Authority shall immediately make all repairs necessary to prevent further spills, leaks or discharges and shall immediately clean up and promptly dispose of the spilled hazardous substance and any soil contaminated by the spill. If the Parking Authority fails to make the required repairs, to clean up the spill or to properly dispose of any contaminated soil, County may after written notice to Parking Authority take all steps County deems necessary to make the necessary repairs, to clean up the spill and to dispose of any contaminated soil. The Parking Authority shall reimburse the County for the cost of all repair and clean up work that the County does. The Parking Authority shall reimburse the County for this expense within 30 days of receiving a bill for this work from the County. The Parking Authority shall be solely responsible for paying all fines, damages and penalties imposed by any governmental agency regarding the Parking Authority's production, storage, distribution, processing, handling, disposing, spilling, leaking or discharging of any hazardous substance on the Walkway Area. Parking Authority shall indemnify, defend, reimburse and hold harmless County, its employees, officers and agents from any and all liability, claims, damages or injuries to any person, including injury to the County or any of County's employees, officers, agents, representatives, guests, licensees, invitees, patrons, or of any other person whomsoever, and all expenses of investigating and defending against same, arising from or alleged to have arisen from or in connection with hazardous or toxic materials or waste Parking Authority brings to or spills or discharges on the Walkway Area or migrating to or from the Walkway Area or arising in any manner whatsoever out of the violation of any governmental regulation pertaining to hazardous or toxic materials or waste which condition exists after the execution of 5 2015 Option Agreement Exhibit "E" Page 22 of 24 this Agreement. 15. No Implied Easement. Nothing in this Agreement shall be construed to grant Parking Authority an easement by implication, prescription, or other operation of law, or to extend the Term of the Agreement past its expiration date as stated herein. 16. Effective. This Agreement shall not be effective until it is signed by Parking Authority in the space provided below and executed by the Assistant Director, Department of General Services, of the County of San Diego. Date: PARKING AUTHORITY OF THE CITY OF NATIONAL PARKING Date: By: Name Title COUNTY OF SAN DIEGO By: Ken Bitar, Assistant Director, Department of General Services 6 2015 Option Agreement Exhibit "E" Page 23 of 24 EXHIBIT "D" NATIONAL CITY PARCEL LEGAL DESCRIPTION PAGE 1 OF 3 THE LAND DESCRIBED HEREIN IS A PORTION OF LOT 14 OF THE NATIONAL CITY TRACT OF THE PLAZA BONITA SHOPPING CENTER, ACCORDING TO MAP THEREOF NO. 10337 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER FEBRUARY 24, 1982, LOCATED IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY MOST CORNER OF SAID LOT 14, THENCE ALONG THE GENERAL WESTERLY BOUNDARY THEREOF NORTH 16°48'07" WEST 2.46 FEET TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 1085.00 FEET, A LINE RADIAL TO SAID POINT BEARS NORTH 00°13'26" EAST; THENCE LEAVING SAID WESTERLY BOUNDARY, EASTERLY ALONG SAID CURVE 267.27 FEET THROUGH A CENTRAL ANGLE OF 14°06'49"; THENCE SOUTH 75°39'45" EAST 27.25 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 760.17 FEET; THENCE EASTERLY ALONG SAID CURVE 45.05 FEET THROUGH A CENTRAL ANGLE OF 3°23'44" TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 675.00 MEET, A LINE RADIAL TO SAID POINT BEARS NORTH 11°24'49" EAST; THENCE EASTERLY ALONG SAID CURVE 141.91 FEET THROUGH A CENTRAL ANGLE OF 12°02'46" TO A POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS NORTH 23°27'35" EAST; THENCE NORTH 69°50'11" EAST 56.68 FEET TO THE GENERAL NORTHEASTERLY BOUNDARY OF SAID LOT 14 AND THE GENERAL SOUTHWESTERLY RIGHT-OF-WAY OF PLAZA BONITA ROAD, 98.00 FEET WIDE, SAID POINT BEING THE BEGINNING OF A NON - TANGENT CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 419.13 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 63°30'11" WEST; THENCE SOUTHEASTERLY ALONG SAID CURVE 104.50 FEET THROUGH A CENTRAL ANGLE OF 14°17'05"; THENCE SOUTH 40°46'54" EAST 339.82 FEET; THENCE NORTH 45°24'52" WEST 109.80 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1205.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE 814.87 FEET THROUGH A CENTRAL ANGLE OF 38°44'45" TO A POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS NORTH 05°50'23" EAST, SAID POINT BEING THE POINT OF BEGINNING. CONTAINS 26,103 SQUARE FEET OR 0.5992 ACRES OF LAND, MORE OR LESS. 2015 Option Agreement Exhibit "E" Page 24 of 24 RESOLUTION NO. 2015 — 3 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN OPTION AGREEMENT WITH CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, A VIRGINIA LIMITED LIABILITY COMPANY, FOR THE PURCHASE OF APPROXIMATELY 9.5 TO 11 ACRES, WITH THE OPTION OF UP TO 15.08 ACRES, OF A PARKING AUTHORITY -OWNED 15.08 ACRE VACANT PARCEL OF LAND LOCATED AT THE SOUTHEAST CORNER OF HIGHWAYS 805 AND 54 IN NATIONAL CITY IN AN AMOUNT NO LESS THAN $3,500,000 FOR THE FIRST 9.5 ACRES AND ADDITIONAL COMPENSATION FOR EACH SQUARE -FOOT IN EXCESS OF 9.5 ACRES WHEREAS, the Parking Authority of the City of National City ("Parking Authority") is the owner of a 15.08-acre parcel of land ("Entire Site") 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 to 11 acres of the site, with the option of up to 15.08 acres ("Property"), 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, on October 21, 2014, pursuant to Resolution No. 2014-1, the Parking Authority of the City of National City approved an Exclusive Negotiation Agreement ("ENA") between the Authority and CarMax; and WHEREAS, in 1978, the Authority conveyed to the County of San Diego an easement for open space and park purposes over the Entire 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; and WHEREAS, on April 3, 2007, the Authority and the County entered into an Option to Purchase Agreement setting forth the terms of an option whereby the Authority could purchase the Easement from the County; and WHEREAS, in the past, County staff have represented that they will exercise their best efforts to relinquish the Easement over the Entire 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; and WHEREAS, the Option Agreement has been amended seven times, most recently on November 18, 2014 pursuant to Resolution No. 2014-1, to extend the term of the Option Agreement; and WHEREAS, the purchase of the Easement by the Parking Authority is a condition to close on the sale of the Property to CarMax; and WHEREAS, 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 #2003111 073, November 2007 ("FEIR") for the Overall Site on November 20,2007, pursuant to Resolution No. 2007-259; and Resolution No. 2015 — 3 Page Two WHEREAS, 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; and WHEREAS, the purpose of the Option Agreement is to ensure that the Parking Authority of the City of National City retains its discretion to approve or disapprove the sale of the Property until after CEQA review is completed; and WHEREAS, the purpose of this Option Agreement is also to ensure that the City Council of the City of National City retains its total discretion to make modifications to the proposed discretionary approvals, adopt alternatives, impose mitigations measures, or disapprove the Project until after CEQA review is completed; and WHEREAS, the purchase price to be paid by CarMax for the Property shall be the sum of (i) Three Million Five Hundred Thousand Dollars ($3,500,000.00) for 9.5 acres, (ii) Five and 91/100 Dollars ($5.91) per square foot for up to one and one-half (1.5) acres of additional acreage, and (iii) Seven and 15/100 Dollars ($7.15) per square foot for any additional acreage in excess of one and one-half (1.5) acres. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute an Option 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 Option Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 18th day of August, 2015. on Morrison, Chairman ATTEST: Leslie Deese, Secretary PPRO S TO FO udia Gacitu. Silv Legal Co sel Passed and adopted by the Parking Authority of the City of National City, California, on August 18, 2015 by the following vote, to -wit: Ayes: Boardmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Parking Authority Secretary, Parking Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2015-3 of the Parking Authority of the City of National City, California, passed and adopted on August 18, 2015. Secretary, Parking Authority By: Deputy CITY OF NATIONAL CITY, CALIFORNIA PARKING AUTHORITY AGENDA STATEMENT yo6-5-1 MEETING DATE: August 18, 2015 AGENDA ITEM NO. 3 ITEM TITLE: Resolution of the Parking Authority of the City of National City authorizing the Chairman to execute an Option Agreement with CarMax Auto Superstores California, LLC, a Virginia limited liability company, for the purchase of approximately 9.5 to 11 acres, with the option of up to 15.08 acres, of a Parking Authority -owned 15.08 acre vacant parcel of land located at the southeast corner of Highways 805 and 54 in National City in an amount no Tess than $3,500,000 for the first 9.5 acres and additional compensation for each square foot jn excess of 9.5 acres. Housing, Grants, & Asset PREPARED BY: Carlos Aguirre DEPARTMENT: Ianagement APPROVE PHONE: (619) 336-4391 _v EXPLANATION: On October 21, 2014, pursuant to Resolution No. 2014-1, the Parking Authority of the City of National City approved an Exclusive Negotiation Agreement ("ENA") between the Authority and CarMax Auto Superstores California, LLC ("Optionee"). A copy of the ENA is attached to the Option Agreement as Exhibit "A". The purpose of the Option Agreement is to ensure that the Parking Authority of the City of National City retains its discretion to approve or disapprove the sale of the Property until after CEQA review is completed. In addition, the purpose of this Option Agreement is also to ensure that the City Council of the City of National City retains its total discretion to make modifications to the proposed discretionary approvals, adopt alternatives, impose mitigations measures, or disapprove the Project until after CEQA review is completed. The total purchase price will not be less than $3,500,000 for 9.5 acres ("Minimum Acreage"). If the Optionee elects to purchase more than 9.5 acres, Section 6 on Page 7 of the Option Agreement describes how the purchase price for additional acreage will be calculated. FINANCIAL STATEMENT: APPROVED: LIW Finance ACCOUNT NO. N/A APPROVED: MIS The Parking Authority will receive no less than $3,500,000 and use part of the proceeds to purchase an open space easement encumbering the subject parcel from the County of San Diego for $3,000,000. 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. The Optionee may exercise the option to purchase the property only upon the City certifying compliance with CEQA. ORDINANCE: INTRODUCTION: 1 FINAL ADOPTION: STAFF RECOMMENDATION: Adoption of the Resolution BOARD / COMMISSION RECOMMENDATION: Not Applicable ATTACHMENTS: Attachment No. 1 Option Agreement Attachment No. 1 OPTION AGREEMENT (CarMax, National City, California) THIS OPTION AGREEMENT ("Agreement") is made as of this 18th day of August, 2015 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 ("the Optionee"). RECITALS A. On October 21, 2014, pursuant to Resolution No. 2014-1, the Parking Authority of the City of National City approved an Exclusive Negotiation Agreement ("ENA") between the Authority and the Optionee. A copy of the ENA is attached to this Agreement as Exhibit "A". B. Recitals "A" through "I" of the ENA are incorporated into this Agreement by this reference. C. The Authority is willing to grant to the Optionee an option to purchase the Property pursuant to the terms and conditions of this Agreement. D. The purpose of this Option Agreement is to ensure that the Parking Authority of the City of National City retains its discretion to approve or disapprove the sale of the Property until after CEQA review is completed. In addition, the purpose of this Option Agreement is to ensure that the City Council of the City of National City retains its total discretion to make modifications to the proposed discretionary approvals, adopt alternatives, impose mitigations measures, or disapprove the Project until after CEQA review is completed. AGREEMENT NOW, THEREFORE, the parties agree as follows: 1. Option. The Authority grants to the Optionee the right and option to purchase the Property from the Authority subject to all the terms and conditions set forth in this Agreement. 2. Option Consideration. The Optionee has made a Deposit in the amount of Twenty -Five Thousand Dollars ($25,000.00) as consideration for this Option. 3. Conditions Precedent. The Optionee may exercise the option to purchase the Property only after the following conditions have been met: A. The Optionee has completed any necessary environmental studies, has prepared any necessary environmental document, including but not limited to a supplemental or subsequent environmental document to the FEIR SCH #2003111073, and has submitted the final environmental document to the City for certification; and 1 Attachment No. 1 B. The City Council of the City of National City has certified that the environmental document has been completed in compliance with CEQA and that the environmental document reflects its independent judgment and analysis. 4. Purchase and Sale. The Authority owns fee simple title to the Property. In consideration of the mutual covenants set forth in this Agreement, the Optionee will acquire all of the Property on the terms and conditions set forth herein, provided the Conditions Precedent in Section 3 above are satisfied. (a) Sale of the Property. The Authority agrees to sell the Property to the Optionee, and the Optionee agrees to purchase the Property from Authority, on the terms and conditions set forth herein. At Closing, the Authority shall convey the fee interest in the Property to the Optionee by recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title Policy (as defined below) to the Optionee at Closing. (b) Possession of the Property. The Authority shall deliver possession of the Property to the Optionee at Closing, subject only to the Title Exceptions, all as defined below. 5. Definitions. As used in this Agreement, the following terms shall have the following meanings: "Additional Acreage" means that portion of the Entire Site, if any, in excess of the Minimum Acreage which the Optionee elects to purchase pursuant to Section 7(h) of this Agreement. By way of illustration, if the Optionee elects to purchase eleven (11.0) acres, then the Additional Acreage shall be comprised of one and one-half (1.5) acres. "Agreement" means this Option Agreement between the Authority and the Optionee. "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 of 1972 (33 U.S.C. § 1251, et seq.); the Safe Drinking Water Act (42 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 Insecticides and Environmental Pesticide Control 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. 2 Attachment No. 1 "Approvals" means all approvals required for the Optionee's construction of the Project and use of the Property, including without limitation, a General Plan Amendment, Planned Development Permit and Conditional Use Permit, Tentative Parcel Map, and all of the development standards in the City of National City Land Use Code (National City Municipal Code Title 18). "Authority" means the Parking Authority of the City of National City. "Authority's Affiliates" shall have the meaning set forth in Section 11(j) of this Agreement. "Authority's Parties" shall have the meaning set forth in Section 11(k) of this Agreement. "Business Day" means any day except for a Saturday, Sunday or holiday. 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. "CEQA" means the California Environmental Quality Act, California Public Resources Code sections 21000 et. seq. "City" means the City of National City. "City Council" means the City Council of the City. "Claim" or "Claims" shall have the meaning set forth in Section 11(i) of this Agreement. "Close" or "Closing" means the close of Escrow as provided in this Agreement. "Closing Date" means the date on which the Closing occurs, pursuant to Section 10 of this Agreement. "Deposit" shall have the meaning set forth in Section 6(b)(1) of this Agreement. "Due Diligence Studies" means all studies, tests, evaluations, and investigations, including, but not limited to, soil borings, percolations tests, test pits, water pressure tests, surveys, Phase I and Phase II environmental studies, and other related investigations performed by, or on behalf of, the Optionee to determine the suitability of the Property for the Project. "Easement" means the easement for open space and park purposes conveyed to the County by the Authority in accordance with a Cooperation Agreement between the Authority, the City of National City and the County of San Diego 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. 3 Attachment No. 1 "Effective Date" means the date on which both the Authority and the Optionee have fully executed this Agreement and have delivered the Agreement to the Escrow Agent. "Entire Site" means the approximately 15.08-acre parcel identified as County Assessor's Parcel Number 564-471-11. "Escrow" means the escrow depository and disbursement services to be performed by the Escrow Agent pursuant to the provisions of this Agreement. "Escrow Agent" means Amy D. Hiraheta at Chicago Title Company, National Projects Division, 725 South Figueroa St., Suite 200, Los Angeles, CA 90017. "FEIR" means the Final Environmental Impact Report for the National City Costco Wholesale Project, SCH #2003111073, November 2007, including the Mitigation Monitoring and Reporting Program and the Statement of Overriding Considerations, certified by the City Council of the City of National City on November 20, 2007 pursuant to Resolution No. 2007- 259. "Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple title to the Property from the Authority to the Optionee, in a form reasonably acceptable to the Authority and the Optionee. "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 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean Water Act of 1972 (33 U.S.C. § 1251, et seq.); the Toxic Substances Control Act (15 U.S.C. §2601, et seq.); the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); or under any other Applicable 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 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, 117690, or 39655 of the California Health and Safety Code. (4) Those substances included within the definitions of "Oil" listed or identified in the Clean Water Act of 1972, 33 U.S.C. §1321, as well as any other hydrocarbonic substance or by-product. 4 Attachment No. 1 (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 §25249.8 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. (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 Insecticides and Environmental Pesticide Control 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.), or the Nuclear Waste Policy Act (42 U.S.C. § 10101 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. 5 Attachment No. 1 "Immediately Available Funds" means a bank wire transfer or a certified bank or cashier's check. "Improvements" means collectively: (i) any and all buildings, structures and improvements, of any kind whatsoever, located at or affixed to the Property; (ii) all rights, privileges and easements appurtenant to the Property, if any, including, without limitation, all minerals, oil, gas and other hydrocarbon substances on and under the Property, if any; and (iii) all development rights, air rights, and water rights if any, relating to the Property. "Minimum Acreage" means that portion of the Entire Site comprised of 9.5 acres, the general location of which is shown on the site map attached as Exhibit "B". "Option to Purchase Agreement" means the Option to Purchase Agreement between the Authority and the County of San Diego, approved by the Board of the Parking Authority of the City of National City pursuant to Resolution No. 2007-5 on March 20, 2007, which sets forth the terms of an option whereby the Authority could purchase the Easement from the County. "Optionee" means CarMax Auto Superstores California, LLC, a Virginia limited liability company; provided, however, if it assigns its interest in this Agreement pursuant to Section 15 of this Agreement, then the term "Optionee" shall mean such assignee. "Permits" means all permits required for the Optionee's construction of the Project and use of the Property, including without limitation, all Federal, State, and local permits, permits required by the United States Army Corps of Engineers, the Regional Water Quality Control Board, the California Department of Fish and Wildlife, the Federal Emergency Management Agency, the California Department of Transportation, and the National City Municipal Code. "Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions in the Title Policy; (ii) real property taxes and assessments which are a lien but not yet payable; and (iii) all applicable building, zoning and use restrictions and/or regulations of the City, San Diego County or the State of California. "Project" means the construction and operation of a CarMax Superstore with related parking and landscaping. "Property" means that certain real property located at the southwest corner of Sweetwater Road and Bonita Center Road, in the City of National City, California, comprised of the Minimum Acreage and, if applicable, the Additional Acreage, and the Improvements, if any, located thereon. The Parties acknowledge that for the purposes of this Agreement, the term "Property" means all or that portion of the Entire Site the Optionee elects to purchase pursuant to Section 7(h) of this Agreement. Optionee shall provide the Authority with an updated site plan and specific, legal description of the Property at the time it submits its complete application as set forth in the Schedule of Performance. "Purchase Price" shall have the meaning set forth in Section 6(a) of this Agreement. 6 Attachment No. 1 "Residual Parcel" means the remainder of the Entire Site which is not included in the Property. "Title Policy" is defined in Section 7(d) of this Agreement. 6. Purchase Price. (a) Total Purchase Price. The purchase price to be paid by the Optionee for the Property (the "Purchase Price") shall be the sum of (i) Three Million Five Hundred Thousand Dollars ($3,500,000.00) for the Minimum Acreage, (ii) Five and 91/100 Dollars ($5.91) per square foot for up to one and one-half (1.5) acres of Additional Acreage, and (iii) Seven and 15/100 Dollars ($7.15) per square foot for any Additional Acreage in excess of one and one-half (1.5) acres. By way of illustration, (1) if the Property is comprised of eleven (11.0) acres, then the Purchase Price for the Property shall be Three Million Eight Hundred Eighty -Six Thousand One Hundred Fifty -Nine and 40/100 Dollars ($3,886,159.40) (i.e., $386,159.40 for the Additional Acreage), and (2) if the Property is comprised of twelve (12.0) acres, then the Purchase Price for the Property shall be Four Million One Hundred Ninety -Seven Thousand Six Hundred Thirteen and 40/100 Dollars ($4,197,613.40) (i.e., $386,159.40 for the first one and one-half (1.5) acres of Additional Acreage and $311,454.00 for the next one (1.0) acre of Additional Acreage). (b) Deposit; Liquidated Damages. (1) Deposit. The Optionee has made a deposit (the "Deposit") into Escrow of Immediately Available Funds in the amount of Twenty -Five Thousand Dollars ($25,000.00). The Deposit shall be credited against the Purchase Price. If the Optionee elects to terminate this Agreement prior to the expiration of the Permitting Period pursuant to Section 8(b), then the Deposit shall be immediately returned by Escrow Agent to the Optionee. At Closing, the Deposit shall be released by Escrow Agent to the Authority. The Deposit, and any interest earned on the Deposit, shall be credited in favor of the Optionee against the Purchase Price as set forth in Section 6(c), below. (2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE REFUNDABLE TO THE OPTIONEE AS MAY BE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF THE OPTIONEE'S DEFAULT HEREUNDER, THE SOLE REMEDY OF THE AUTHORITY SHALL BE TO TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO THE OPTIONEE AND ESCROW AGENT, WHEREUPON THE AUTHORITY SHALL RETAIN THE DEPOSIT(S) ACTUALLY DEPOSITED BY THE OPTIONEE INTO ESCROW AS LIQUIDATED DAMAGES (AND THE AUTHORITY 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 AUTHORITY'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 7 Attachment No. 1 ESCROW AS SET FORTH IN SECTIONS 6AND 7 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE AUTHORITY'S ACTUAL DAMAGES IN THE EVENT OF THE OPTIONEE'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 AUTHORITY 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. Authority's Initials Optionee's Initials (c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1) Business Day prior to the Closing Date, the Optionee shall cause Immediately Available Funds to be delivered to the Escrow Agent in an amount of equal to the Purchase Price, minus the Deposit. (d) Disbursement to the Authority. Immediately after the Closing, the Escrow Agent shall disburse to the Authority the funds that the Authority is entitled to receive under this Agreement. 7. Due Diligence Period. (a) Investigations. Commencing on the Effective Date, the Optionee shall have 270 days in which to conduct Due Diligence Studies. The Authority grants to the Optionee the right to enter onto the Property for the sole purpose of conducting the Due Diligence Studies. The Optionee agrees to defend, indemnify and hold harmless the Authority and the City of National 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 Optionee's, or the Optionee's officers, employees, or agents, entry onto the Property 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, 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 8 Attachment No. 1 during the Due Diligence Period. The Optionee shall not be liable for any release of Hazardous Materials that may occur as a direct result of the Due Diligence Studies, provided that there is no negligence or willful misconduct of the Optionee or the Optionee's officers, employees, or agents in performing the Due Diligence Studies. If the Optionee does not purchase the Property, the Optionee shall restore the Property substantially to its condition existing immediately prior to the Due Diligence Studies, except for minor clearing of vegetation reasonably necessary for the performance of the Due Diligence Studies. At the expiration of the Due Diligence Period, the Optionee shall have the right, in its sole and absolute discretion, to terminate this Agreement by written notice given to the Authority and the Escrow Agent on or before the expiration the Due Diligence Period. If the Optionee terminates the Agreement at this time, the Optionee shall be entitled to the return of the Deposit from the Escrow Agent, and the parties shall be relieved of liability to each other except as specifically set forth herein. The Optionee acknowledges that the Entire Site has been unused and unfenced for an unknown period of time preceding its ownership by the Authority. The Optionee acknowledges that there have been reports of illegal transient encampments, and there is a possibility that unpermitted dumping or release of substances, including, without limitation, Hazardous Materials, may have occurred. The Authority has no knowledge of any such activities, but the Optionee shall undertake sufficient Due Diligence Studies and investigations as necessary to fully satisfy itself of the condition of the Entire Site. (b) Environmental Document(s). The Optionee shall, at its expense, but subject to reimbursement as set forth herein, prepare, or cause to be prepared, any necessary environmental document(s), including but not limited to a new environmental impact report if applicable, deemed necessary or desirable by the Optionee in order to comply with the provisions of CEQA. Promptly following the preparation thereof, the Optionee shall submit the CEQA document(s) to the City. If the Property is less than the Entire Site, the Optionee shall include as a part of its CEQA document(s) the proposed development on the Residual Property, and the Authority shall fully cooperate with the Optionee to provide the necessary information with respect thereto when and as needed. The Authority shall reimburse the Optionee for the Authority's pro rata share of the costs incurred by the Optionee to prepare the CEQA document(s) pursuant to this provision, which reimbursement shall be made through a credit at Closing, and the Authority shall defend such reimbursement against any challenges. If any challenge is made in part or solely with respect to the proposed development on just the Residual Property, the Authority will defend such partial or sole challenge against the Residual Property, as the case may be, at the Authority's sole cost and expense. Other than as set forth in the immediately preceding sentence, Optionee shall, at its sole cost and expense, defend any challenge to the CEQA document(s) prepared. For purposes of the reimbursement, the Authority's pro rata share shall be deemed to be a fraction, the numerator of which shall be the number of square feet comprising the Residual Parcel and the denominator of which shall be the number of square feet comprising the Entire Site. The Parties acknowledge that inclusion of a proposed development on the 9 Attachment No. 1 Residual Property in the CEQA document(s) adds value to the Authority's Residual Property beyond the cost of the CEQA document(s) preparation. (c) Survey. The Optionee shall, at its expense, obtain a current survey of the Property, prepared by a surveyor or civil engineer duly licensed in the State of California. (d) Title Policy. The Authority shall pay the cost of 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 Optionee subject only to the Permitted Exceptions. The Title Policy shall be obtained through Chicago Title Company. The Optionee may obtain an ALTA Owner's Policy of Title Insurance, in which event the Optionee shall pay the cost difference between the cost of the ALTA Owner's Policy of Title Insurance and the cost of a CLTA Owner's Policy of Insurance. (e) Concept Plans. The Optionee shall work with the Authority to develop prototypical building elevations and conceptual site plans, including parking and pedestrian circulation in relation to its surrounding. The Concept Plans shall identify building design features, including signage. (0 Sustainability. The Optionee 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. The Optionee shall comply with National City Municipal Code Chapter 15.78; provided, however, that notwithstanding the foregoing, there is no requirement that the Project be LEED certified or certifiable. (g) Schedule of Performance. Exhibit "C" attached hereto sets forth the agreed upon Schedule of Performance. The Schedule of Performance may be revised from time to time as may be mutually agreed upon in writing between the Optionee and the Authority. The City Manager, or designee, shall have the authority to approve revisions to the Schedule of Performance on behalf of the Authority. (h) Size and Dimensions of the Property. Prior to the expiration of the Due Diligence Period, the Optionee shall deliver to the Authority an exhibit depicting the size and dimensions of the Property, and, if applicable, the Residual Parcel to be used to develop the Tentative Parcel Map. The size and dimensions of the Property shall be determined by the Optionee based upon its good faith determination of the total size of the property needed to accommodate and support the Project which it intends to construct on the Property (including without limitation, any property required for detention or retention ponds), but without including any additional or surplus property which would not be needed for the Project; provided however that (i) the Property shall be comprised of not less than the Minimum Acreage, and (ii) the Planning Commission, as the sole decision -making body for the Tentative Parcel Map, has complete discretion to make modifications to, or to disapprove, the Tentative Parcel Map. 8. Permitting Period. 10 Attachment No. 1 (a) The Optionee shall have 365 days after the expiration of the Due Diligence Period in which to obtain all necessary Permits, Approvals, and the Tentative Parcel Map. Notwithstanding the foregoing, if the Optionee is pursuing the Permits, Approvals, and the Tentative Parcel Map in good faith but is unable to obtain the Permits, Approvals, and the Tentative Parcel Map prior to the expiration of the Permitting Period, the Optionee shall have the right to extend the Permitting Period by up to three (3) successive thirty (30) day periods, upon prior written notice to the Authority. (b) If the Optionee is unable to obtain all the necessary Permits, Approvals, and the Tentative Parcel Map prior to the expiration of the Permitting Period, the Optionee shall have the right, in its sole and absolute discretion, to terminate this Agreement by written notice given to the Authority and the Escrow Agent on or before the expiration the Permitting Period, provided that the Optionee has diligently and in good faith worked to obtain the Permits, Approvals, and the Tentative Parcel Map . If the Optionee terminates the Agreement at this time and the Optionee has diligently and in good faith worked to obtain the Permits, Approvals, and the Tentative Parcel Map, the Optionee shall be entitled to the return of the Deposit from the Escrow Agent, and the parties shall be relieved of liability to each other except as specifically set forth herein. If, following the expiration of the Permitting Period, the Optionee elects not to proceed with the purchase of the Property, the Authority shall retain the Deposit as liquidated damages as its sole and absolute remedy pursuant to Section 6(b)(2) of this Agreement. (c) The Optionee shall be liable for the costs of obtaining all of the Permits and Approvals, except as may be specifically set forth herein. (d) The Authority represents to the Optionee that the sole decision -making body for the Permits and Approvals to be issued by the City is the City Council (it being understood that certain of the Permits and Approvals may be issued by federal or state agencies). The Authority staff will assist the Optionee in obtaining the Permits and Approvals by responding to inquiries from the Optionee, attending meetings, providing information to the Optionee and providing staffs recommendations to the Optionee. However, notwithstanding the previous sentence, the City Council has complete discretion to make modifications to the Permits and Approvals, adopt alternatives, impose mitigations measures, or disapprove the Permits and Approvals. The Authority staff's role is that of a facilitator in the process. (e) The Authority represents to the Optionee that the sole decision -making body for the Tentative Parcel Map is the Planning Commission. The Authority staff will assist the Optionee in obtaining the Tentative Parcel Map by responding to inquiries from the Optionee, attending meetings, providing information to the Optionee and providing staff's recommendations to the Optionee. However, notwithstanding the previous sentence, the Planning Commission has complete discretion to make modifications to the Tentative Parcel Map or disapprove the Tentative Parcel Map. The Authority staffs role is that of a facilitator in the process. 9. Obligation to Close. The Parties' obligation to close shall be conditioned upon the satisfaction of all of the conditions set forth in this Section 9. 11 Attachment No. 1 (a) The completion of the purchase by the Authority of the Easement from the County; (b) This Agreement being formally approved by a resolution of the Parking Authority of the City of National City after a duly noticed public hearing; (c) The certification of an environmental document by the City Council; (d) The issuance of all Permits by the City Council and other appropriate authorities, and the expiration of any applicable appeal period; (e) The approval by the City Council of all of the Approvals; (f) The approval by the Planning Commission of the Tentative Parcel Map; (g) The Optionee not being in default of any of its representations or warranties under this Agreement, or any other material terms or conditions related to the Optionee; (h) The Optionee not having 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 Optionee, or commenced any proceeding relating to the Optionee under any reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect; (i) The Escrow Agent being prepared and obligated to issue the Title Policy in the Optionee's favor upon the recordation of the Grant Deed and there are no exceptions to the Title Policy, except for Permitted Exceptions; (j) The Authority not being in default under this Agreement, or any other material terms or conditions related to the Authority; (k) There exists no lease, tenancy or occupancy agreement affecting the Property; and (1) There is no 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 Optionee. 10. Closing. Closing shall occur thirty days after the expiration of the Permitting Period. The City Manager, or designee, has the authority to extend the date of Closing for two thirty -day periods. (a) At least one Business Day prior to Closing, the Authority shall deposit into Escrow the following: (1) the Grant Deed, duly executed and acknowledged, conveying fee simple title to the Property to the Optionee; 12 Attachment No. 1 (2) a duly executed certificate containing the Authority's taxpayer identification number and a statement that the Authority is not a foreign person pursuant to United States Internal Revenue Code section 1445. The affidavit shall be substantially in the form attached to this Agreement as Exhibit "D"; (3) 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; and (4) all additional documents and instruments as are reasonably required by the Optionee and/or Escrow Agent to complete the Closing. (b) At least one Business Day prior to Closing, the Optionee shall deposit into Escrow the following: (1) the Deposit, as set forth in Section 6(b)(1), above; (2) Immediately Available Funds in the amount required by Section 6(c), above; and (3) all other documents and instruments required by this Agreement or reasonably required by the Authority and/or Escrow Agent to complete the Closing. At Closing, the Authority shall deliver the Property to the Optionee as one legally platted parcel, and the Property shall be free and clear of all tenants or occupants or any other party claiming any rights in or to the Property. 11. Representations and Warranties; Waivers and Releases. When making the representations and warranties set forth in this Section 11, each party making a representation and/or warranty represents that the same are true, correct and complete as of the Effective Date and shall be and are true, correct and complete as of the Closing Date. The representations and warranties shall survive the Closing. (a) Representations and Warranties Regarding Authority. The Authority and the Optionee each 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 Authority or the Optionee, as applicable. (b) Representations and Warranties Regarding Enforceability of Agreement. The Authority and the Optionee each represents and warrants to the other that this Agreement and all documents required to be executed by them shall be valid, legally binding obligations of, and enforceable against, the Authority or the Optionee, as applicable, in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws 13 Attachment No. l affecting the rights of creditors generally and general principles of equity (whether enforcement is sought in equity or at law). (c) The Authority's Representations and Warranties Pertaining to Legal Matters. The Authority represents and warrants to the Optionee that: (1) As of the Effective Date and the Closing Date, the Authority 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) The Authority's Representations and Warranties Pertaining to Options. The Authority represents and warrants to the Optionee that no person has any option or right of first refusal to purchase the Property or any parts thereof. (e) Material Adverse Changes. If the Authority receives any notice or knowledge of anything materially adversely affecting the Authority's representations or warranties after the Effective Date, then the Authority shall immediately notify the Optionee in writing of such fact or circumstance. (f) The Authority's Representation and Warranty Pertaining to Tenants. The Authority represents and warrants to the Optionee that no person has any lease or other lawful right to occupy the Property or any parts thereof. (g) The Authority's Representation Regarding the Option to Purchase Agreement. The Authority represents that the obligations of the Authority as the Optionee in the Option to Purchase Agreement, including but not limited to the obligation to install a vegetated buffer along the north side of the trail/walkway pursuant to Section 7 of the Option to Purchase Agreement, shall become obligations of the Optionee. A copy of the Option to Purchase Agreement is attached to this Agreement as Exhibit "E". (h) The Authority's Representation and Warranty Regarding Operation of the Property. Other than the representation in Section 11(g) above, the Authority represents and warrants to the Optionee that there are no other oral or written agreements or understandings concerning the Property by which the Optionee would be bound following the Closing. (i) The Authority's Representation Regarding Hazardous Materials. The Authority has not knowingly (i) caused or permitted to be stored, disposed of, transferred, produced or processed on the Property any Hazardous Materials; (ii) received notification of any enforcement, cleanup, removal or other governmental or regulatory actions being instituted, contemplated or threatened against it or the Property; and (iii) received notification of any claims made against the Authority by any third party or other person with respect the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from Hazardous Materials. 14 Attachment No. 1 (j) AS IS CONDITION. THE OPTIONEE ACKNOWLEDGES, REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL INDUCEMENT TO THE AUTHORITY TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN CONSIDERATION OF THE PERFORMANCE BY THE AUTHORITY OF ITS DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT THAT, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO THE AUTHORITY'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11 OF THIS AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE ON AN "AS IS, WHERE IS" BASIS. THE AUTHORITY 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 THE OPTIONEE TO REZONE THE PROPERTY OR CHANGE THE USE OF THE PROPERTY; (15) THE ABILITY OF THE OPTIONEE 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 15 Attachment No. 1 BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS 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 (THE OPTIONEE AFFIRMING THAT THE OPTIONEE HAS NOT RELIED ON THE AUTHORITY'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT THE AUTHORITY 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, THE AUTHORITY IS NOT RELEASED FROM ANY LIABILITY TO THE OPTIONEE 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 11(j), any right waived by the Optionee and any release by the Optionee, shall only release or waive the Optionee'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 Authority and Authority's successors, assigns, officials, officers, directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and agents (collectively, the "Authority's Affiliates") or any of them. The Optionee 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 the Optionee'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 Authority's Affiliates, including without limitation persons obligated to the Authority's Affiliates, 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"). THE OPTIONEE ACKNOWLEDGES THAT THE OPTIONEE SHALL HAVE COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF 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 THE AUTHORITY'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11 OF THIS AGREEMENT. THE OPTIONEE 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 AUTHORITY HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO THE 16 Attachment No. 1 AUTHORITY'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11 OF THIS AGREEMENT. THE AUTHORITY SHALL NOT BE LIABLE FOR ANY NEGLIGENT MISREPRESENTATION OR FAILURE TO INVESTIGATE THE PROPERTY NOR SHALL THE AUTHORITY 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 THE AUTHORITY, OR ANY REAL ESTATE BROKER, AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING ON THE AUTHORITY'S BEHALF EXCEPT FOR REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN SECTION 11 OF THIS AGREEMENT. IT IS ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY THE AUTHORITY AND PURCHASED BY THE OPTIONEE SUBJECT TO THE FOREGOING. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, THE AUTHORITY IS NOT RELEASED FROM ANY LIABILITY TO THE OPTIONEE FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS AGREEMENT. THE OPTIONEE ACKNOWLEDGES AND AGREES THAT THE OPTIONEE 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 THE OPTIONEE SHALL BE CONCLUSIVE EVIDENCE THAT: (A) THE OPTIONEE HAS FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND COMPLETELY INSPECTED) THE PROPERTY; AND (B) THE OPTIONEE ACCEPTS THE PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE FOR THE OPTIONEE'S PURPOSES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN SECTION 11 OF THIS AGREEMENT, THE OPTIONEE SHALL PERFORM AND RELY SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. THE OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THE AUTHORITY'S COOPERATION WITH OPTIONEE WHETHER BY AUTHORIZING THE RIGHT OF OPTIONEE TO ENTER ON THE PROPERTY, 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 17 Attachment No. 1 RESPECT TO THE PROPERTY, OR WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO OPTIONEE BY THE AUTHORITY 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 8 OF THIS AGREEMENT. AUTHORITY'S INITIALS OPTIONEE'S INITIALS (k) Indemnity and Waiver. (1) Indemnity. For the purposes of this Section 11(k), the term "Claims" shall mean any and all claims, obligations, liabilities, causes of action, suits, debts, liens, damages, judgments, losses, demands, orders, penalties, settlements, costs and expenses (including, without limitation, attorneys' fees and costs) of any kind or nature whatsoever. The definition of "Claims" shall also include, without limitation, Claims under contract law or tort law. The Optionee acknowledges that but for the Optionee's agreement to each and every provision of these Sections 11(j and k), the Authority would not have entered into the Agreement. The Optionee, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"), shall indemnify, defend, protect and hold the Authority, the City of National City, and their successors, assigns, partners, affiliates and members and all their respective officials, officers, directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and agents (collectively, "Authority Parties") harmless from and against all liability, loss, damages to property, injuries to, or death of any person or persons, including liability for response to environmental regulatory claims, and any and all Claims resulting from, related to, or based upon, whether directly or indirectly: (i) the breach by the Optionee 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 the Optionee 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; provided however, that this indemnification shall not include any Claims arising from the established sole negligence or willful misconduct of the Authority or the Authority Parties. Any defense of any or all of the Authority Parties referenced in this Section 11(k)(1) shall be at the Optionee's sole cost and expense and by counsel selected by the Optionee, subject to the reasonable approval of the indemnified person, which counsel may, 18 Attachment No. 1 without limiting the rights of any of the Authority Parties pursuant to the next succeeding sentence of this Section 11(k)(1), also represent the Optionee in such investigation, action or proceeding. If any of the Authority Parties that is being indemnified determines reasonably and in good faith that its defense by the Optionee is reasonably likely to cause a conflict of interest or is being conducted in a manner which is prejudicial to such persons interests, such indemnified person may elect to conduct its own defense through counsel of its own choosing, subject to the reasonable approval of the Optionee, and at the expense of the Optionee. It is specifically intended that each of the Authority Parties shall be third party beneficiaries of this Section 11(k). (2) Survival. The provisions of this Section 11(k) shall survive the Closing and, as applicable, the termination of this Agreement. (1) Waiver of Hazardous Materials Claims. Upon Closing, the Optionee and its Successors waive any and all future Claims by the Optionee against the Authority or the Authority Parties regarding any aspect of the condition of the Entire Site, physical or environmental. (m) Waiver of Subrogation; Survival. The Optionee waives any right of subrogation as to the Authority or the Authority's Parties. Each and every provision of this Section 11 shall, except as may be expressly limited in this Section 11, survive the Closing and, as applicable, the termination of this Agreement, and, but for the Optionee's agreement to each and every provision of this Section 11, the Authority would not have executed this Agreement. 12. National Pollutant Discharge Elimination System Municipal Permit. The Optionee agrees and warrants that it will comply with the National Pollutant Discharge Elimination System Municipal Permit and the Water Quality Improvement Plan pursuant to the Municipal Permit during construction and operation of the Project. To the extent applicable to the Property the uses conducted thereon, the Optionee agrees and warrants that it will comply with Chapter 14.22 of the National City Municipal Code titled "Storm Water Management and Discharge Control". 13. 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, the Optionee may, at the Optionee's election, either: (1) Terminate this Agreement by giving written or emailed notice to the Authority and the Escrow Agent in which event all remaining funds or other things deposited in Escrow by the Optionee, including without limitation, the Deposit, shall be returned to the Optionee 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 Authority and one-half (1 /2) by the Optionee; or 19 Attachment No. 1 (2) Proceed with the Closing with no reduction in the Purchase Price, in which event the Authority shall assign to the Optionee all of the Authority's rights, titles and interests to any award made for the condemnation or eminent domain action. (b) Notice. If the Authority 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 Authority shall notify the Optionee in writing. 14. Broker's Commission. The Authority and the Optionee represent that there are no real estate brokers or agents of record in this transaction, other than Don Moser of Retail Insite Commercial Real Estate, and the Authority shall pay the Don Moser a commission pursuant to a separate written agreement, a copy of which shall be furnished to the Optionee. The Authority and the Optionee each agree that, to the extent any other real estate commission, brokerage commission or finder's fee shall be earned or claimed in connection with this Agreement or the Closing, the payment of such fee or commission, and the defense of any action in connection therewith, shall be the sole and exclusive obligation of the party who requested (or is alleged to have requested) the services of the broker or finder. In the event that any claim, demand or cause of action for any such commission or finder's fee is asserted against the party to this Agreement who did not request such services (or is not alleged to have requested such services), the party through whom the broker or finder is making the claim shall indemnify, defend (with an attorney of the indemnitee's choice), protect and hold harmless the other from and against any and all such claims, demands and causes of action and expenses related thereto, including, without limitation, attorneys' fees and costs. The provisions of this Section 11 shall survive the Closing or termination of this Agreement. 15. Assignment. The Optionee shall not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the Authority, which consent may be withheld or granted in the Authority's sole and absolute discretion; provided, however, the Optionee may assign this Agreement to an entity in which the Optionee has a controlling or majority interest without the prior written consent of the Authority provided the Optionee and such assignee execute an assignment agreement in form and substance reasonably acceptable to the Authority. 16. 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: 20 If to the Optionee: and a copy to: If to the Authority: Attachment No. 1 CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company 12800 Tuckahoe Creek Parkway Richmond, Virginia 23238-1115 Attention: K. Douglass Moyers, VP of Real Estate Email: Jason_D_Pruitt@carmax.com Phone: (804) 935-4552 Fax: (804) 935-4547 Matthew I. Lamishaw, Esq. Kennerly, Lamishaw & Rossi LLP 707 Wilshire Blvd., Suite 1400 Los Angeles, California 90017 Phone: (213) 312-1250 Fax: (213) 312-1266 Parking Authority of the City of National City City Manager's Office 1243 National City Boulevard National City, CA 91950-4301 Attn: Brad Raulston Tel: (619) 336-4250 Fax: (619) 336-4327 Email: braulston@nationalcityca.gov The addresses above may be changed by written notice to the other party; provided however, that no notice of a change of address shall be effective until actual receipt of the notice. 17. Risk of Loss. The risk of loss or damage to the Property until the Closing will be borne by Optionee, due to the right of Optionee to enter onto the Property for the purpose of conducting the Due Diligence Studies. If prior to the Closing there is damage to or destruction of the Property, Optionee shall nevertheless close Escrow with the Property in such damaged condition, and the Purchase Price shall not be reduced. The Authority shall not be obligated to repair or restore the Property. Optionee may elect not to proceed with the purchase of the Property at any time following the expiration of the Permitting Period. In the event Optionee elects not to proceed post Permitting Period but prior to Closing, the Authority shall retain the Deposit as liquidated damages as its sole and absolute remedy pursuant to Section 6(b)(2) of this Agreement. 18. 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 Closing. The Authority shall pay all documentary transfer taxes. The Authority shall pay all real property taxes and assessments applicable to the period prior to the Closing, and if any such taxes are unpaid after the Closing, then the Authority shall pay them promptly and in any event within ten (10) days after Optionee's request (which shall include a copy of the relevant tax bill). Except as otherwise provided herein, in accordance with southern California custom, each party hereto shall pay all of its own costs and expenses in 21 Attachment No. 1 connection with this transaction, with the Authority to pay any transfer tax, all recording fees at Closing (except as provided herein), all costs related to clearing title objections, and one half (1/2) of any escrow fees charged by the Escrow Agent. The Optionee shall pay for the cost of the Survey and one half (1/2) of any escrow fees charged by the Escrow Agent. 19. General Provisions. (a) Governing Law. This Agreement shall be interpreted and construed in accordance with California law, without regard to any choice of law principles. (b) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (c) Captions. The captions in this Agreement are inserted for convenience of reference and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions of this Agreement. (d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, heirs and permitted assigns. (e) Modifications and Amendments. No modification, amendment, or change to this Agreement shall be valid unless it is in writing and signed by the Authority and the Optionee. (f) Entire Agreement. This Agreement contains the entire agreement between the parties relating to Optionee's acquisition of the Property from the Authority 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 22 Attachment No. 1 awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5 and any other applicable provisions of California law, including, without limitation, the provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch. (1) Relationship. Nothing contained in this Agreement shall be deemed or construed by the parties or by any third person to create a relationship of principal and agent or partnership or a joint venture between the Optionee and the Authority or between any of them and any third party. (m) Recording. Neither this Agreement nor a memorandum hereof shall be recorded. (n) The Authority's Approval. Where this Agreement refers to an action or approval of the Authority, it shall mean the approval of the Authority, or designee, unless otherwise provided. (o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are 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 incorporated in this Agreement by this reference. (p) Independent Counsel. The Authority and the Optionee 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 Authority and the Optionee and the advice and assistance of their respective counsel, if such counsel was retained. The fact that this Agreement was prepared or negotiated by the Authority'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 the Authority due to the fact that the Authority's counsel prepared or negotiated this Agreement in its final form. (q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations set forth in this Agreement, including without limitation, the deadline for Closing and the deadline for making the Deposit, shall all be automatically extended by one (1) Business Day for each Business Day that the Authority fails to timely provide any notice, report, materials, studies, documentation or other information required by this Agreement. (r) Capacity and Authority. All individuals signing this Agreement for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent and warrant that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. [Signatures continued on next page] 23 Attachment No. 1 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. OPTIONEE: CarMax Auto Superstores California, LLC, a Virginia limited liability company By: K. Douglass Moyers, Vice President AUTHORITY: Parking Authority of the City of National City By: Ron Morrison, Chairman Approved as to Form: By: Claudia Silva Legal Counsel for the Parking Authority of the City of National City 24 Attachment No. 1 LIST OF EXHIBITS EXHIBIT DESCRIPTION "A" Exclusive Negotiation Agreement `B" General Site Map of Minimum Acreage Schedule of Performance "D" Internal Revenue Code Section 1445 Certification "E" Option to Purchase Agreement between the Authority and the County of San Diego 25 Attachment No. 1 EXHIBIT "A" EXCLUSIVE NEGOTIATION AGREEMENT Exhibit "A" Page 1 of 13 Attachment No. 1 EXCLUSIVE NEGOTLATTNG AGREEMENT BY AND BETWEEN PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AND CARMAX AUTO SUPERSTORES CALIFORNIA, LLC This Facclusive Negotiating Agreement ("Agreement" or "ENA"), dated as of dais 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 CALLORNIA, LLC, a Virginia limited liability company ("CarMax'). In consideration ofthe mutual covenants and promises set forth below, the Authority and CarMax (collectively, the "Parties'") agree as follows: RECITALS This Agreement is entered into with afcccto the following facts: A. In 1977, pursuant to I(esohrtion 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 ofa 15.08 acre parcel of land at the southwest corner of Sweetwater Road and Bonita. Center Road, in tie 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 heretoand incorporated herein by this reference (the "Overall Site"). C. In 1978, the Authority conveyed to the County of San Diego an casement for open space and park purposes over the Overall Site (the "Easement") io ice with a Cooperation Agreement between the City of National City and the County of San Diego (the "County") for the development ofthe Plaza Bonita Shopping Center, the construction of Plaza Bonita Road, and the funding of improvements to potions 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 berms 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 aver the Overall Site for a fee of S3,000,000 and that they will use the fee to purchase replacement open space property within the Sweetwater Valley Regional Park and the Sweetwater Summit Clumping Area. F. The Option Agreement has been amended six times, most recently an October 15, 2013 pursuant to Resolution No. 2013-2, to extend the term of the Option Agreement. 2014 Boclusive Negation* Agreeroont Poridng Authority tithe City of Notional City sod Ca dAtoc Ana Superstores cslibral., LLC Exhibit "A" Page 2 of 13 Attachment No. 1 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 13nvironmental Impact Report for the National City Costa, Wholesale Project, SCH #200311 I073, November 2007 C i'EIR") for the Overall Site en 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, etxscent 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 oldie Easement on the Ovoid' 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 noticed 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 Dane ("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 (11) 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 smell 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) P_ermitting Period. Commencing upon the expiration of the Due Diligence Period, CarMax shall have the right to an additional period oftime (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 Nang Agreamaet Parking Autbeelty ofthe City ofNittow! City rod CWMmc Auto Sopalooros California, U C Exhibit "A" Page 3 of 13 Attachment No. 1 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 rightto extend the Permitting Period for up to two additional thirty day periods. Section 2. Parehase 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—1,b499.58), (ii) Obtain all City, State, and Federal Permits ("Permits") required for CarMax's construction of the Project end 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 Cade Title 1 0) ("Approvals") required for CarMax's construction of the Project and use of the Property; (iv) Complete end obtain certification of, to the satisfaction of the Authority. all environmental documents in compliance with Section 9 below; and (v) Prooess 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, tic Authority shall use its good filth 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 stab to negotiate a reduction in the cost to release the Easement from the County pursuant to the Option Agreement; 2014 Ibrdusrve Negotiating Agreement Paetriiog Atatarity of the City of Nahaoa1 City and c rM= Auto Supeentores Callfbenia, LL.C: Exhibit "A" Page 4 of 13 Attachment No. 1 (11) 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; (Hi) Furnish CarMax with any documents in its possession or oontroi to assist CarMax with its doe 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 perdes, that during the Exclusive Negotiating Period, the Authority and its staff, consultants and/or agents shall not negotiate, discuss, or otherwise contntunteate"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 elusive 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 Ag Cement for the acquisition of the Property and the construction and development of the Project. (d) 'lire land use authority is the City and the sole decision -raking body for thePermits 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 wilt be that of a facilitator in the process. Section 5. Obligations of CarMax (a) During the Due Diligence, CarMax shall work with Authority stab 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 foegoing, there is no requiranent that the Project has to be LEED certified or certifiable. 2014 Exclaim Negotiating Agreement Parking Authority of the thy orNatiau t City and CnrMsx Auto Superstores California, LLC Exhibit "A" Page 5 of 13 Attachment No. 1 (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 duo 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 Manageme¢tt 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 satlslsetion of the Authority, all environmental documents I 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 rive agents and representatives with respect to the physical condition ofthe Property, including any environmental contamination; (c) A provision requiring CarMax, at its sole cost, to (i) cause any environmental 'mediation of the Property as may be required for the construction and operation of the Protect and (ii) obtain all Permits and Approvals relating to the cortstruction and operation of the Project; and 2014 Exclusive New Agreement Poking Authority of the City of Natiatud City mod Caitlin Arco Superstores California. IIC Exhibit "A" Page 6 of 13 Attachment No. 1 (d) A provision ensuring that CarMax will comply with the National Pollutant Discharge Elimination Systems ("NPDES") Municipal Permit and the Water Quality Improvement Plan ("WW1 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 ($?.5,000.00) in the form of a wire payment, ACH, or any other form that is acceptable to the Authority ("Good Faith Dexsit"). The purposes of the Good Faith Deposit we (i) as considertzon to the Authority for exclusively negotiating with CarMax for the Property, and (il) 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 Inwards the Purchase Price. Any inter 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 cxpiratlon 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 CarMw is denied the Permits, Approvals or the parcel map, or if CarMax is unable to obtain certification of the environmental document inquired 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 S. No Acquisition CarMax acknowledges and agrees that it has not acquired, nor will it acquire, by virtue of thc tams 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 supplerueatal or subsequent environmental documents to thc 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 I0. Ternaiaatioa (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 %aladve Nototiatinc Agi a nena Part* Authority Oft City efNalanai City aid CarlMsx Auto Supersiores Callfbrata, TLC Exhibit "A" Page 7 of 13 Attachment No. 1 specifying any such failure to comply with the terms of this Agreement. The Party wishing to terminate shall not terminate this Agreethhaht 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 temhinate, except for those provisions that expressly survive tenmfnation. Section 11. Effect of Agreement Notwithstanding any other provision af'this INA, 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 Parries. Notwithstanding any provision of this Agreerhient to the contrary, CarMax acknowledges and expressly agrees as follows: (a) That this Aenent 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 frees, development or financing of the Property, or any other matters to bt acted on by the Authority, as applicable; (b) That all such matters shall be coavridered and processed by the Authority in accordance with all otherwise applicable Authority and City requirements and procedures; (e) 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; (c) The Parties shall promptly commence the good faith negotiation of a Purchase and Sale Agre anent upon execution of this Agreement by the Authority. 2014 Exclusive Nominating Agn cn at Parking Authority ofshe City of Nahum' City and Orlin Attu superstores California. LLC Exhibit "A" Page 8 of 13 Attachment No. 1 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 arc 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 bath 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 staboanents 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 ofthe Authority, after a noticed public hearing, and has been duly executed by the Parties. Section 14. Prohibition against Aasignmeat 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: 3M Dixon Phone: 804-747-0422 x4326 Fax: 804.935-4547 Email: jmJ bcor4c annax.c om 201.4 Exetuslve Negotiating Ammer hiking Authority of ibC C'iW od'Ndiand City twit G&W Auto Supmtrtams California, LLC Exhibit "A" Page 9 of 13 Attachment No. 1 (b) To the Authority: City of National City Parking Authority City Manager's Office 1243 National City Boulevard National City, CA 91950.4301 Attu: Brad Raulston Phone: 619-336-4250 Fax: 619-336-4327 Email: braul*nnnnti lcityca-gov AiI 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 tberoof is delivered by certified mall or overnight delivery service providing for delivery against receipt). Section 16. Peblic 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. Sectioa 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 10. 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, a nvirnntnenlal conditions, riots, floods, earthqualas, 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 exuded for e$Ah 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 obligadons that expressly survive termination. 2014 &chair:Negotiating Agreement Perking Authority of the ctlr ofNdaaorl City and Cats tau Auto &uperatome Celttbe , LLC Exhibit "A" Page 10 of 13 Attachment No. 1 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 perfonnancc of the terms ofthis 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 damage, consequential damage, or last profits, from the Authority in the event of a default by the Authority under this Agreement or any action related to this Agreement. Secdoa 20. Indemnity CarMax agrees to defend, indemnify and hold hannless 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 many 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, dcficnse 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 deaned 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 (il) 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 fire City (or any of its departments or hoards) as to the granting of any approval, permit, consent or other entitlement in the exercise of the Authority's or the City's rtgulatory 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 A,peancet Parking Authority adze City of Nations] City ant (.m'Max Auto Superstores Calid%ntle, LLC Exhibit "A" Page 11 of 13 Attachment No. 1 to bind the Authority or the City. The final form ofany proposed Purchase and Sale Agreement to be negotiated may contain matters not contemplated by this Agreement, including, but not limited to, matters wry to accommodate compliance with the kw, 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) attach 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 APPROVED AS TO FORM: Legal Cann •4 r the Parking Authority of the City of National City CARMAX AUTO SUPERSTORES CALIFORNIA, LLC a Virginia limited liability company 2014 Exclusive Negotiating A.gietzmt Pieties Authority of the City of t atiooel City end CarMax Auto Superstores Calitbrnis, LLC Exhibit "A" Page 12 of 13 Attachment No. 1 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 OWICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO IN THE STATE OF CALIFORNIA ON 24 FEBRUARY 1982". 2014 Explosive Negotiiding Apeameut hating Autixeity of tie City of Nalimad City and C+l l x Alto Superstores Caalifomit. LLC Exhibit "A" Page 13 of 13 Attachment No. 1 EXHIBIT "B" GENERAL SITE MAP OF THE MINIMUM ACREAGE Exhibit "B" Page 1 of 2 Attachment No. 1 I _Iwo — 0 Exhibit "B" Page 2 of 2 Attachment No. 1 EXHIBIT "C" SCHEDULE OF PERFORMANCE Opening of Escrow. The Parties shall open Completed. escrow with Chicago Title Company. CarMax Deposit. The Optionee shall deposit Completed. the Deposit into Escrow. Receipt — Preliminary Title Report. The Completed. Optionee shall obtain and deliver to the Authority the Preliminary Title Report and underlying documentation. Receipt — Survey. The Optionee shall prepare and submit to the Authority a Survey. Approval — Preliminary Title Report/Survey. The Optionee shall approve or inform the Authority of any title and/or survey exceptions that are not acceptable to the Optionee by delivery of a "title/survey objection letter." Approval — Preliminary Title Report/Survey. Within five (5) business days after receipt by the Authority of the "title/survey objection letter" from the Optionee. The Authority shall notify the Optionee whether it will cure the title and/or survey exceptions that are not acceptable to the Optionee. Submission — Environmental Consultant. The Within thirty (30) days after execution of this Option Agreement ("Agreement"). Optionee shall submit to the Authority and the City the name of the environmental consultant responsible for preparing the Environmental Document that it intends to use for the Authority's approval, which approval shall not be unreasonably withheld, delayed or conditioned. Approval — Environmental Consultant. The Within five (5) business days after receipt by the Authority and the City. Authority and the City shall approve or disapprove the environmental consultants. Submission — Draft Environmental Document to Authority. The Optionee shall prepare or cause to be prepared, and shall submit to the Authority and the City, the Draft Environmental Document for comment by City. Comment — Draft Environmental Document. Within ten (10) business days after receipt by the City and the Authority. The City shall comment on the Draft Exhibit "C" Page 1 of 2 Attachment No. 1 Environmental Document and submit the comments to Optionee. Submission — Final Draft Environmental Document to the Public. The Optionee shall cause the Final Draft Environmental Document to be circulated for comments in compliance with the California Environmental Quality Act ("CEQA"). Respond — Comments on Final Draft Environmental Document. The Optionee shall prepare or cause to be prepared responses to all comments received on the Final Draft Environmental Document. Review — Responses to Comments on Final Within ten (10) business days after receipt by the Seller. Draft Environmental Document. The City shall review the responses to the comments on the Final Draft Environmental Document and shall submit its comments to Optionee. Submission — Complete Application. The Within ninety (90) days following the expiration of the Due Diligence Period. Optionee shall prepare and submit to the City a complete application for the necessary General Plan Amendment, Zoning Map Amendment, Municipal Code Amendment, Tentative Parcel Map, and Conditional Use Permit including all back-up information requested by Planning Staff. Notice of Complete Application. The Within thirty (30) days following submission of the Complete Application. pplications for necessary project entitlements are determined by the City to be complete. Submission — Sustainability Narrative. The Optionee shall submit to the Authority a sustainability narrative pursuant to Section 7(f). Exhibit "C" Page 2 of 2 Attachment No. 1 EXHIBIT "D" INTERNAL REVENUE CODE SECTION 1445 CERTIFICATION Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes (including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by the Parking Authority of the City of National City, the undersigned certifies the following on behalf of the Parking Authority of the City of National City: 1. The Parking Authority of the City of National City is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); 2. The Parking Authority of the City of National City is not a disregarded entity as defined in § 1.1445-2(b)(2)(iii) of the Code of Federal Regulations; 3 The Parking Authority of the City of National City's U.S. employer identification number is and 4. The Parking Authority of the City of National City's office address is CarMax Auto Superstores California, LLC understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of the Parking Authority of the City of National City. Parking Authority of the City of National City By: Date: Ron Morrison, Chairman Exhibit "D" Page 1 of 1 Attachment No. 1 EXHIBIT "E" OPTION TO PURCHASE AGREEMENT BETWEEN THE AUTHORITY AND THE COUNTY OF SAN DIEGO Exhibit "E" Page 1 of 24 Attachment No. 1 OPTION TO PURCHASE AGREEMENT (Open Space Easement on 15.08-acre parcel Sweetwater Road, National City, CA) THIS OPTION TO PURCHASE AGREEMENT ("Option Agreement") is made as of April 3, 2007 ("Effective Date"), by and between the COUNTY OF SAN DIEGO, a political subdivision of the State of California ("County"), and buyer, PARKING AUTHORITY of the CITY of NATIONAL CITY, a public body corporate and politic created pursuant to the Parking Law of 1949, ("Optionee"). RECITALS A. Optionee owns a 15.08-acre parcel of land at the southwest corner of Sweetwater Road and Bonita Center Road in National City, California identified as County Assessor's Parcel Number 564-471-11 and more particularly described in Exhibit A ("Property"). B. In 1978 Optionee conveyed to County an easement for open space and park purposes ("Easement") over this 15.08-acre parcel. A copy of the deed conveying the Easement is attached hereto as Exhibit B. C. Optionce wishes to purchase the Easement from County and to convey to County title to a strip of land along the south end of the parcel that contains a trail/walkway. D. Except for the trail/walkway along the south end of the parcel, the 15.08- acre parcel has not been improved with park or recreational facilities and remains undeveloped. County has determined that the Easement is not required for County use. E. County is willing to grant to Optionee an exclusive option to purchase the Easement from County pursuant to the terms and conditions set forth in this Option to Purchase Agreement ("Option Agreement"). AGREEMENT NOW, THEREFORE, the parties hereto agree as follows: 1. Option. County hereby grants to Optionee the right and option to purchase the Easement from County subject to all of the terms and conditions set forth in this Option Agreement. 2. Term. The term ("Term") of this Option shall be from the Effective Date through December 31, 2007, or through December 31, 2008 if Optionee gives notice of a legal challenge pursuant to paragraph 9D. 3. Option Consideration. Exhibit "E" Page 2 of 24 Attachment No. 1 A. Within 10 days of the Effective Date, Optionee shall pay to County $100 as consideration for this Option. B. The payment shall be made payable to the County of San Diego and sent or delivered to: Director, Department of General Services c/o Real Estate Services Division 5555 Overland Avenue, Suite 210 Building 2, Room 110 San Diego, CA 92123-1294 4. Conditions Prjecedent. Optionee may exercise this Option to purchase the Easement only after all of the following conditions have been met: A. Optionee has completed and certified an environmental impact report ("Eitt") for a commercial development project on the 15.08-acre parcel that is subject to the Easement. Optionee has prepared the EIR as the lead agency under the California Environmental Quality Act, Public Resources Code Section 21000, et seq. County, a responsible agency under CEQA, has fulfilled its duties as a responsible agency as set forth in CEQA Guidelines section 15096 by, among other things, approving the sale of the Easement after County considers the EIR for the commercial development project; B. Optionee has provided County with a copy of the final EIR, the action certifying the E1R for the commercial development project (CEQA Guidelines section 15090), the findings of significant effects for the project (CEQA Guidelines section 15091), and the Statement of Overriding Considerations, if any (CEQA Guidelines section 15093); C. Optionee has provided County with a letter confirming that the City of National City changed the General Plan land use designation on the Property to a commercial designation, that the sale of the Easement is consistent with the City's open -space plan and that the transfer of title to the Walkway Area Is consistent with National City's General Plan; and D. Optionee has sent via certified mail a copy of the Notice of Determination (consistent with CEQA Guidelines section 15094) to the Director of General Services at the address listed in paragraph 3B, and, at its next reasonably available meeting, as determined by County, the Board of Supervisors has confirmed that Optionee completed and certified an EIR for a commercial Exhibit "E" Page 3 of 24 Attachment No. 1 development project on the Property, which confirmation will not be unreasonably withheld. 5. purchase Price. During the Term of this Option Agreement. Optionee herein shall have the exclusive right and option to purchase the Easement from County for the price listed below, subject to the conditions precedent listed in paragraph 4. The purchase price is $3 million. Optionee may, at its sole discretion, either pay the $3 million in full upon conveyance of the Easement to Optionee or pay pursuant to the terms set forth below: A. $2 million to be paid upon conveyance of the Easement to Optionee; B. $1 million to be paid within four years after County conveys the Easement to Optionee, $500,000 of which shall be paid within the first two years. The remaining $500,000 plus all interest due shall be paid within the second two years; and C. The outstanding balance of the $1 million specified in subparagraph B above shall accrue simple interest at the rate of 5% per year starting on the date County conveys the Easement to Optionee. All payments shall be made as specified in paragraph 3B. 6. Enhancements and/or Improvements to Sweetwater Reziona1 ParJc, County agrees to use the $3 million paid for the Easement for enhancements, expansion, and/or improvements to the Sweetwater Regional Park, including bicycle/recreational trails adjacent to the Park and within one mile of the Park that serve the Park (collectively, "Sweetwater Improvements"), to provide recreational opportunities consistent with open space and park uses. County agrees that use of the monies for the Sweetwater Improvements is consistent with the County's intent in accepting the Easement in 1978 for open space and park purposes. County agrees that the Sweetwater Improvements would serve the purpose of lessening any incompatibility between the Plaza Bonita Shopping Center and the Sweetwater Regional Park, and that the Sweetwater Improvements to provide passive and/or active recreational uses would serve the region in a manner similar to that originally intended by the conveyance of the Easement on the 15.08-acre parcel. 7. Buffer for Walkway. A. A trail/walkway is located on the south side of the Property. Optionee shall install or cause to be installed a vegetated buffer along the north side of the trail/walkway to screen it from the parking lot for the proposed commercial development on the Property. The buffer shall be fully installed/planted before the Exhibit "E" Page 4 of 24 Attachment No. 1 proposed commercial development is open to the public. The vegetated buffer shall meet the following specifications: 1. The vegetated buffer shall be at least five feet wide and shall consist of a combination of distance and low-level screening to separate the walkway from the adjacent parking lot and commercial development. 2. Vegetation shall be of sufficient height and density to provide a visual barrier between the trail and the adjacent parking lot and commercial development. 3. Vegetation in the buffer shall consist of a combination of drought tolerant vegetation and native plant material 4. Optionee Shall provide a copy of the proposed planting plan to the County's Department of Parks and Recreation for its review and written approval before Optionee plants vegetation in the buffer. 5. The vegetated buffer shall include an irrigation system with water provided by Optionee. B. The parties will execute the Right of Entry Agreement attached hereto as Exhibit C to allow the Parking Authority or its agents, assigns, contractors or successors in interest to enter the Walkway Area to install the vegetated buffer as required by this paragraph 7, to install, monitor and maintain the retaining wall, and to monitor and remove graffiti from the retaining wall. C. If Optionee exercises this Option and Escrow closes as specified subparagraph 9C (6), this paragraph 7 shall survive the termination of this Agreement. D. A retaining wall may be constructed adjacent to the vegetated buffer as part of the proposed commercial development. Any such retaining wall will be located on the property proposed for commercial development. The retaining wall and vegetated buffer will be constructed so that plants in the buffer, such as vines, will grow on the wall. If a retaining wall is constructed, the owner of the property on which the wall is located will be responsible for maintaining the wall and removing any graffiti. Optionee shall ensure that the permit for the proposed commercial development includes a condition that requires the developer to identify a graffiti removal contractor who will be responsible for removing any and all graffiti from the retaining wall within 24-hours of its observance and/or notification by the City of National City Code Exhibit "E" Page 5 of 24 Attachment No. 1 Enforcement Officer. In addition, it is unlawful for property in the City of National City to remain defaced with graffiti. Specifically, Municipal Code section 10.54.050 states, in relevant part, that "it is unlawful for any responsible party to permit property which is defaced with graffiti to remain so defaced for a period of seventy- two hours after notice of same by the city ..." 8. Transfer Title to W jcwav Area to County. As part of the conveyance described in paragraph 9 below, Optionee shall transfer to County title to the area along the south end of the Property that contains the walkway and buffer ("Walkway Area"). The description of the Walkway Area is in Exhibit D attached hereto. 9. Exercise of Option. Prior to the expiration of the Term and subject to the conditions precedent in paragraph 4, Optionee may exercise the Option by taking the following actions: A. Exercise of Option. Optionee shall provide written notice of Optionee's exercise of this Option to the Director, Department of General Services at the address specified herein. Within 10 business days after receiving the written notice from Optionee, the Director of General Services shall determine whether all conditions precedent to the exercise of this Option, as set forth in paragraph 4 above, have been fulfilled. Upon the Director's determination that all conditions precedent have been fulfilled, he shall execute a deed conveying the Easement to the Optionee on behalf of County, and shall deposit the deed with the Escrow Holder as specified below. B. Failure to Exercise Option. In the event Optionee does not exercise the Option prior to the expiration or earlier termination of the Term, or any extension thereof, or if Optionee cancels Escrow or Escrow does not close, Optionee shall execute, acknowledge, and deliver to County, within thirty (30) days after County makes demand therefor, a good and sufficient quitclaim deed whereby all right, title, and interest of Optionee in the Basement is quitclaimed to County. Should Optionee fail or refuse to deliver said quitclaim deed to County, County may prepare and record a notice reciting the failure of Optionee to execute, acknowledge, and deliver such deed, and said notice shall be conclusive evidence of the termination of this Option and all right of Optionee or those claiming under Optionee in and to the Easement. C. Conveyance. 1) Opening of Escrow. Within five (5) business days after the Director makes the determination specified in paragraph 9A above, County and Optionee shall open an escrow ("Escrow") with First American Title Company, Escrow Division, or such other escrow company as may be Exhibit "E" Page 6 of 24 Attachment No. 1 mutually approved in writing by County and Optionee ("Escrow Holden") for the conveyance of the Easment by County to Optionee and the Walkway Area by Optionee to County. Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement is delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify County and Optionee in writing of the date of the Opening of Escrow promptly following the opening of Escrow. 2) Close of Escrow: Closing Date. Escrow shall close either ou or before the date that is ninety (90) days after the Opening of Escrow, or five (5) business days after Optionee's notice to County and escrow company requesting to close escrow , whichever is sooner, ("Close of Escrow" or "Closing Date").provided that: (i) Optionee has not given written notice pursuant to paragraph 9D rescinding the exercise of the Option and cancelling Escrow; and (ii) the Closing Date shall occur before the expiration of the Term. The terms "Close of Escrow" and/or "Closing Date" shall mean the date the deeds conveying title to the Easement and title to the Walkway Area are recorded in the Office of the County Recorder of the County of San Diego, California. 3) Rscrow tnst 3ictions. This Option Agreement, together with a standard instruction of Escrow Holder, mutually acceptable to County and Optionee, shall constitute the joint escrow instructions of County and Optionee to Escrow Holder, as well as an agreement between County and Options. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder's standard instructions, this Option Agreement shall prevail. 4) gscrow Fees, Title Charges, and Closing Costs. Optionee shall be responsible for any and all escrow fees, recording fees, and any other costs and expenses of escrow. As a condition to the closing of this transaction, Optionee may obtain an ALTA extended owners policy of title insurance in form and substance acceptable to Optionee ("Title Policy"). Optionee shall pay for the ALTA policy. 5) DFposits into Escrow. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Optionee shall deposit or cause to be deposited with Escrow Holder the following: (i) funds as provided in Exhibit "E" Page 7 of 24 Attachment No. 1 paragraph 5 hereof; (ii) any and all escrow fees and closing costs; (iii) a promissory note for $1 million with payment and interest terms as specified in paragraph 5B and C above in a form approved by County, if full payment is not made; (iv) an executed and acknowledged deed conveying title to the Walkway Area to County in a form approved by County ("Walkway Deed"); and (v) any and all additional instruments or other documents required from Optionee (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Easement to Optionee and the Walkway Area to County. On or before 1:00 p.m. on the last business day preceding the scheduled CIosing Date, County shall deposit or cause to be deposited with Escrow Holder the following: (I) an executed and acknowledged deed conveying the Easement to Optionee in a form approved by Optionee ("Quitclaim Deed"); and (ii) any additional instruments. or other documents required from County (executed and acknowledged if appropriate), as may be necessary in order to effect the transfer of the Easement to Optionee and the Walkway Area to County. 6) Closing. Recording and Disbursement. On or before the Closing Date, and when Escrow Holder has received al] of the documents and funds listed in subparagraph 5) immediately above, and Escrow Holder is in a position to cause the Title Policy referred to in subparagraph 4) above to be issued to Optionee, Escrow Holder shall close the Escrow by taking the following actions: (1) recording the Quitclaim Deed and Walkway Deed in the Office of the Official Records of the County of San Diego, California, and delivering the recorded Quitclaim Deed to Optionee and the Walkway Deed to County; (ii) causing the Title Policy to be issued to Optionee; (iii) delivering the Purchase Price as provided in paragraph 5 hereof to County; and delivering the $1 million promissory note described above to County, if the Purchase Price is to be paid over time. D. Leeal Challenges. If a legal challenge to this Option Agreement, to the EIR for the commercial development of the 15.08-acre parcel or to any other approval related to the commercial development of the 15.08-acre parcel is filed, Optionee may: (i) give written notice to County of the legal challenge, whereupon the Term shall be deemed to be extended to December 31, 2008; and (ii) by written notice to County rescind the exercise of the Option and cancel Escrow. If Optionee rescinds the Option and cancels Escrow, Optionee shall be entitled to a refund of all funds Exhibit "E" Page 8 of 24 Attachment No. 1 Optionee deposited in Escrow without penalty. Any time thereafter, but before the expiration of the Term, Optionee may re - exercise the Option by again providing the notice specified in paragraph 9A above. If Optionee re -exercises the Option, the parties shall comply with paragraphs 9A, 9B and 9C above. 10. Mitigation. County shall not be responsible for mitigating any impact related to the commercial development of the Property that is identified in the E. for the commercial development, including any impact for the loss of open space, if any, or any impact to biological resources, if any. 1 i. Defense and Indemnity. Optionee shall defend and indemnify County and its agents, officers and employees (collectively, "County Parties") from any claim, action, liability or proceeding against County Parties to attack, set aside, void or annul this Option Agreement or any proceedings, acts or determinations taken, done or made pursuant to this Option Agreement. Optionee's obligation to defend and indemnify County Parties shall apply to any claim, lawsuit, action .or challenge against County Parties alleging failure to comply with the California Environmental Quality Act or failure to comply with any other federal, state or local laws. Optionee's obligation to defend and indemnify County Parties shall include, but not be limited to, payment of all court costs and attorneys' fees, judgments and awards against County Parties, and/or settlement costs, which arise out of or are related to County's approval of this Option Agreement and/or any proceedings, acts or determinations related thereto. County shall promptly notify Optionee of any such claim, lawsuit, action or challenge and shall cooperate fully in the defense. 12. Property Disclosures,hy County ,and Optionee. County is selling this Easement in an "as -is" condition, but hereby declares to Optionee that County has no knowledge of the presence of hazardous materials, soil contamination, or underground storage tanks on the Property. Optionee is transferring title to the Walkway Area in an "as -is" condition, but hereby declares to County that Optionee has no knowledge of the presence of hazardous materials, soil contamination, or underground storage tanks on the Walkway Area. 13. General Pro isions. 13.1 Administraaion. This Option Agreement shall be administered on behalf of County by the Director, Department of General Services, and on behalf of Optionee by the Executive Director of the Community Development Commission of the City of National City. 13.2 Assignment. Optionee shall not voluntarily or involuntarily assign, mortgage, encumber, or otherwise transfer all or any portion of Optionee's interest in this Option without County's prior written consent. To be effective, the assignee or transferee must assume Optionee's obligations hereunder. Exhibit "E" Page 9 of 24 Attachment No. 1 13.3 Binding Effect. Subject to any provisions concerning assignment contained in this Option Agreement, this Option Agreement shall be binding upon and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties hereto. 13.4 Brokers and Finders, Neither County nor Optionee has engaged the services of a real estate broker, and neither shall be required to pay a brokerage commission or finder's fee with regard to the execution of this Option Agreement. Neither County nor Optionee has been represented in this transaction by a Broker or finder (collectively, `Brokers") in connection with this Option Agreement, and neither has acted in a way that would entitle any Brokers to any commission. Optionee and County agree to defend, indemnify and hold each other harmless from all claims, losses, damages, costs and expenses, including reasonable attorneys' fees, arising from or related to any assertion by any Broker contrary to the foregoing clauses where the assertion is based on the acts or alleged acts of the other party. 13.5 Entire Agreement. This Option Agreement, including Exhibits A, B, C and D and, if Optionee pays over time, the related $ 1 million promissory note, contain the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. 13.6 Governing Law. The Option Agreement shall be construed and enforced in accordance with the laws of the State of California. 13.7 Notices. Unless otherwise specifically provided herein, any notice or notices required or permitted to be given pursuant to this Option Agreement, may be (i) personally served on the other party by the party giving notice, in which event it shall be deemed delivered at the time of personal service; (ii) may be served by regular mail, in which event it shall be deemed delivered three (3) business clays after delivery to the United States postal carrier; or (iii) may be served by overnight courier, in which case it shall be deemed delivered the next business day. Any such notices shall be delivered to the addresses set forth below: To County: Director, Department of General Services c/o Real Estate Services Division County of San Diego 5555 Overland Avenue, Suite 210 Building 2, Room 110 San Diego, CA 92123-1294 To Ontionee: Executive Director Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-3312 13.8 Time of Essence. Optionee and County hereby acknowledge and agree that TIME IS STRICTLY OF THE ESSENCE with respect to each and every term, condition, obligation and provision herein and the Option relating hereto, and the failure Exhibit "E" Page 10 of 24 Attachment No. 1 to TIMELY AND FULLY perform or satisfy any of the terms, conditions, obligations or provisions of this Option Agreement shall constitute a non -curable default hereunder. 13.9 )?u_rther Assurances. County and Optionee agree to execute such other documents and take such further actions as may be needed or required to effectuate the terms, conditions, covenants, and provisions of this Option Agreement. As a responsible agency, County will, in good faith: (a) review and comment on the EIR for the commercial development project; and (b) work with Optionee to resolve any differences the parties may have as to the adequacy of the ERR, its findings, conclusions, mitigation measures and statement of overriding considerations, if any. IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement effective as of the day and year first above written. Approved as to form and legality City A o ey By: ilva, Senior Assistan Attorney Approved as to form and legality County Counsel RON MORRISON, Chairman Parking Authority of the City of National City COUNTY OF SAN DIEGO By:By: lAtlp-m( -JOHN-Jr E- ector enior Deputy Department of General Services APRIL F. HEINZE, P.E., Director Exhibit "E" Page 11 of 24 Attachment No. 1 EXHIBIT A DESCRIPTION OF REAL PROPERTY Being a portion of Quarter Section 109, Rancho De La Nacion, Map No. 166.in the City of National City, County of San Diego, State of California, said portion being more particularly described as follows: Beginning at the most Northerly corner of Parcel 1 of Parcel Map No. 6149 on file in the Office of the Recorder of said County; thence along the Northeasterly boundary of said Parcel. Map South 66°00'06" East (South 65°55121" East per Parcel Map 6149) 544.06 feet to the beginning of a tangent 20.00 .foot radius curve concave Westerly; thence leaving said Northeasterly boundary Southerly along said curve through a central angle of 101°26'37" an arc distance of 35.41 feet to a point of compound curvature with a 295.00 foot radius curve concave. Northwesterly; thence South- westerly along said curve through a central angle of 53°21'00' an arc distance of 274.68 feet; thence along a nontangent line South 85°23'37" West 101.21 feet to the beginning of a nontangent 499.00 foot radius curve concave Southeasterly, a radial line to said point bears North 01°12'29" West; thence Southwesterly along said curve through a central angle of 26"44'40" an arc distance of 232.92 feet to a point of compound curvature with a 849.00 foot radius curve conclave. Southeasterly; thence Southwesterly along said curve through a central angle of 24°00'00" an arc distance of 355.63 feet to a point of compound curvature with a 419.13 foot radius curve compound Easterly; thence Southerly along said curve through a central angle of 78°50'07" an arc distance of 576.70 feet; thence tangent to said curve South 40°47'16" East 339.82 feet; thence North 45'25'10' West 109.80 feet.to the beginning of a tangent 1205.00 foot radius curve concave Southwesterly; thence Northwesterly along said curve through a central angle of 38°45'55" an arc distance of 815.28 feet to a point in the Westerly boundary of said Parcel Map No. 6149; thence along said Westerly and Northwesterly boundary of said Parcel Map the following courses; North 16°48'32" West (North 17°18'45" West record) 286.06 feet to a point in the arc of a nontangent 637.00 foot radius curve concave. Southeasterly, a radial line to said point bears North 65°24'02" West; thence Northeasterly along said curve through a central angle of 30°,35'03" an arc distance of 340.03 feet; thence tangent to said curve North 55°11'01" East (North 54°40'48" East record) 582:29 feet; thence North 84°24'59" East (North 83°54.'46" East record) 75.49 feet; thence North 01°09'59" West (North 01°40'12" West record) 32.85 feet; thence North 56°38'16" East (North. 56°08'03" East record) 246.33 feet to the Point of Beginning. Containing 15.080 acres. Exhibit "E" Page 12 of 24 1 ammuniamminmensimmiummachment No. 1 • ' RECORDING RCOUESTCO ev 1620 11..D Wilcw ►tcv.w 7 YAll T..ly °NM p«n, p.m cm C I.'OWW OI}')W, MAIL Tall STAY..YrwT. TO et.w County !of San Diego ,,��, Real Property Department Most. 5555 Overland Avenue San Diego, California Cr“ .nn: x.r TILI.• r}Idar So. }:.ero.t Xn Tax tercel \o I ' •f vac>vrtt t7Tg AC,cy,L',.,+ ty al. III 4l ion 134s0 Istonsynsal al Ile. Preaely CCT i s,;(fL 'id .a :r.n SAII Pleto CoL'kiT, taros LIMO L,r tk canter', a"• J1Q FEE GRANT DIED T.IF I111t RSIGNRI) CRANTDIt(x) 13EiCLARE(a) DOCUMENTARY TRANSFER TAX Is !-- I armputnt en lull value of rrerrrt► nnxpal. or • y ..•0.►YM.1 .,.. r.11 .wow I..t .atuv Of Dom Or raeeallil.rlteJ Wraaipirtg' IL Ulm. Of W1tt, 0 L'alnarparated Ana Q Clcv ,1._..... L�QR#� FUR A VAI,LUAI:LE CO? IDERATION. receipt of with is hervily :ickrutp•IeAytert, THE PARKINS AUTHORITY OF THE CITY OF NATIONAL CITY herby CP.ANT(S) to The County of San!Diego! an easement for open space and park purposes over thrfollowiyTdeecribedreal property Inthe City of ' Kationa1 city State oI Catiforcio: The property described on Exhibit pA" hereof, and as shown as Parcel "AL on Exhibit "8" hared, , subject to the conditions is set forth on Exhibit "C" hereof,. ratre O4 S- 1978 STATI: Of CALIFORNiA. coutr ry ar aC�_. a, . �,. j ss. Cot erased., a �9 r i" Went we Ute r+�7 [ •lard, r Naar; Tuldit in rad tat avid County and Stu:•j ianalrltyonto ral e• die ,y. jab, . _ Tor t' LrfJ.e•� I known so not •. L. tit porton 0 Me.s aarok 1 b fr........,.... , iubacalbad t. Mt orttitln Ipotra/sent one ..knsM1+4A.A th►I. ytr.atan et .o.ry� PARKING At! By? r Edit • County of San Diego. tr • RY ;, ( THE CITY OF RATIONAL C ! // ... / *re a J i"'.ti•.'. .• orltWL, tic3L DotL SuabON nyrar. r.r'.k C yuDRPU .•”PC'r•t stoic[ nMTY fsLI ottcjeou etl' C. iiLttioa Wins fad 12, !!1! w�wwrw+f.r..i� elan: TA/ ITMOeptta to "AM sawn Ox (pttOkftna tsar: IF OD MOVIE/ Jam. umas mod, matt Nave Wort *Odom i • I• lr ' ' `•Y"' b.u, -?• roll rw� I • 1 i' i rrttiY.ietiwar..... r----,. Cttr%tea• ram....*M.Y SWIM ..,,,�� Exhibit 4E" Page 1 of 2r , -- � Imo- '• ,� TY Attachment No. 1 • 1 I ...ter • 'II roCCORDW6 RCOUCaTCO iv 1820 40D WI..N 81FCCOND1:9 MAIL 'NW Or.;D AND, VNL$%I Ot.LRWJl1. fr Owu IN LOW. MAIL TAt 4To T041.1 .TC. , .I..r County of San Diego Real property Department Aram. 555S Overland Avenue San Diego, California CT•. "r.Tr K;W Oriel, tin 1"rror. �rti Tax Partrl l o. .� J ! fii.C,:t • 7?9 i•.::: t. SECQuo/ of Sanut a 1' Ef 1. Olpstauid at RtN fralaM OcT 35 i :.s •! • "is I opal:',.• • **.r. i t: : Jjj i. ra••I:_ !: A.A 111::8 LW41'', :AV,. This sou.. Go' JWc rY•t s "N• . FEE 'GRANT DEED TII . 11XIIRRNIONEf GRANTOR Cs, ;DECLARetei »OCM 'TART TRAabJYR TAX is S....,. ,_ ...epu,.rl.h frtf YRIP,• "f p opr*ty Maw;..d, .ri , •r.] ssolpuh'rl On lull Ttlur test. Woo', or liens or cosurabmiss 1 feMCiniRX at time ,mc. G t:Dillrorsornsce Ar,w ; d; City ur ....Nitigrlal•,,,CjtY ,_• .__,awl FOR k VA1.l:A1tl.E CONSIDERATION. receipt oC whie:i ig hereby acknowledged. THE PARKING AUTHORITY OF THE CITY DE NATIONAL CITY hereby DRANT (57 to The County -of San Diego ``en easement for open apace find ysrk purposes over the iellming described real property in the ctity of ' National City State lh Cabfo nis: i I The property described on Exhibit "A" hereof, and as shown as Parcel "A" on Exhibit "B". hereof, subject to the conditiors as set forth on Exhibit "C" hereof. . County of Son Diego. This is to certify that the !interest in real property conveyed by the : . 1821 foregoingdeed or grant to the County of San Diego. a political :ufrsaidtountysofereby San Dingo purauand on tetola thorf itygconferref Supervisors by tsars • Resolution of said Board adopted on O;tuber 12', 1975 and the Grantee eansants to recordation thereof by its du authorized officer. Date eir7:13ra2,1 /17P1 8y k f fgT OF CALIFORNIA ) SS.--- ! OF SAN DIEGO y 1 $'1$0$ ;+3-=cday of ..rot+• . 1178. before me, the undersigned; a Rotary• u41ic in arld for said ounty and state, persanal'ly appeared KILk WRGaAit *own to me to be _ CHA and 1 D•A. pptl 'morn to all be SECRETARY of—the� • 'hiking rat?7the Of the City Of National City, California. a public body ctrperatt and politic :the public body at executed thte within instrument and' known to ale to be the persrrts who executed thin same on behalf of said public body and acknowledged tome that said public body executed the same, prrrsuant to its bylaws ar• a resolution of its board oaf directors. 1 IN yrTHESS WH£REDF, I have hereunto sett:ey hand and alffixed m[y notarial sea], the day and year in 'this _ J I . rlur,n►u annex N• DAM L saw! ta��IPS y SFlte IOW Ottit Oauylrin i ry calo ailliesassal.m : l P Exhibit "E" Page 14 of 24 ,; «� < ^T►s t, 21/5C l:rvising Real PrJe /Agent quisit�ion and ReTTTToct on Divis•:an •Dapartieent of Real ►roperty • :cjolit. tip t i r ,.� 1;822 itu,1.4Acu Isar , • PARCEL "A" - OPEN SPACE EASEMENT TO COUNTY of SRN• DIPGO ' ' i Being a portion of ,'}carter Sectitan 1D9, Rancho De La :4acion, Map No. 166 in the City of National City, County' of San Diego, Stato of Califu. ia, said portion being more paiti ularly desoribep as follows:: r. r Beginning at the most Northerly corner o1 Fa'rce.. 1 of Parcel, Asap ro. 6149 on file in the Office of tho Recorder of said County; thence along the Northeasterly boundary of said Parcel Map South 66'J0'06" East (South 65655'21" East per•Pariccl Map 5149) 54'4.06 feat to the beginning of a tangent 20.00'foot radius curve concave Westerly; thence leaving said Northeasterly` boundary Southerply along said curve through a central angle of 101'26'37" an axe distance of 33.41 feet to a point of compound curvature with a 295.00 foot radius curve concave; Northwesterly; thence South- westcrlyialong WO curve through a central'angle of 53.21'00" an arc distance of 274.68 feet; thence along a nontangent line 1 South 85123'37' West 101.21 feet to the beginning of,a nontangent 499.00 foot radius curve concave, Southeasterly, a radial liie to said point boars North 01'12'29",West, thence Southwesterly along said•curve through a central angle of 26"44'40"•an arc distance • of 232.92 foot to a point of compound curvature with a 849.00 foot radius curve concave Southieasterly; thence Southwesterly along said curve through a central angle of 24°00'000 an arc distance of 355.63 feet to a point of compound curvaturo with a 419.13 foot radius curve cornpcund Easterly; thence Southerly along said curve through a central angle of%78'30'07" an are distance(of 576.70 feet; thence'tengent to said curve South 40.47'16" East 339.82 feet; thence Worth 45•25'10" West 109:80 feet to the beginning of a tangent 1205.00 foot radius curve coreavc southwesterly; thence Northwester1y•alcnq said curve through a, central angle of 32'45'SS' en arc distance of 815.22 o feat to a; point in the testerly:boundary of. said Parcel MapiNo. i 6149; thence along said Westerly and Northwesterly boundary of said Parcel leap the following courses; North 12'48'32" Nest r (isurth 17'18'45" West record) 286:06 feet to a point in the1 f are of a nortangcnt 637.00foot radius curve concave Southeasterly, a _adia2 line to said point bears north 65'•24'02" :West; thence . Northeasterly along said curve through a central angle of 3A'35'D3" an arc distance of 340.03 feet;lthence tangent to said curve North 55'11'0 " East (North 54.40'48"iEast record) 582.29 feet; thence north 84°24'59" East (North 83'34'46" East±.record) 75.49 feet; thence North 01.09'59" West (North 01'4D'1.2" West record) 32.85 feat; tJ.oneo North 56.32'16" test (North 56'08'03" Last radord) 246.33 feet to the Pont of Beginning. Containing 15.080 icres. ' WWI . - ••.114. • - • - • _ • _ .• J4vms3 g er's ODIN NYS IU ALUM 1 Al* 3VACKLVII IMMO' .1111Y4 1VN010311. ,70ILV01030 VIM1WSSV1 zrtas MAO 10 mri a D '"'"*"". ' - -. • ---'w .E.Aff.r• 0. • Alt, he -;;•=y:::1,14 atioa ANVci WOO ON1839N1DM1 M3Id \ 1 r‘• t, • 11)... SZA89 abt Attachment No. 1 1824 PARCEL "A", EASEMENT FOR: OPEN SPACE AND PARK PURPOSES CONDITIONS OF EASEMENT . NHiREAS, `, 1. Tye PARKING_AUTHORITY OF THE CITY Of, NATIONAL CITY, CALIFORNIA warrants that It is the owner ofjthe!FEU SIKPLE ESTATE in and to the land in the County of San Diego, State of California, described in Exhibit AN attached hereto ("The Subject Land`); which:estate is or may be subject to real estate taxes, aisessments, conditions, restrictions and easements all as the same may be of record, and 1 2, It is the desire of the Grantor and kilt County of San Diego. a political subdivision of the State of California (hereinafter referred to es "COUNTY'), that the Subject Land remain OPEN 4nd/or PARK and RECREATIOr4ALIsPAce. ION: THEREFOfE. 1. The GRAVTDR grants to the County, (A) A perpetual easement for OPEN SPACE and/or PARK and RECREATIONJL purposes over, upon, across and under the Subject Land, and no building; structure or other thing whatsoever shall be constructed. erected. placec or maintained on the Subject Land except as;exists. Grantor however reserves the right to ride de Subject Land and to develop Subject Land for public perk and recreational purposes subject.to County approval of such developr.nt'prier to the construction thereof by Grantor. :0) The perpetual right, but not the obligation to enter upon the Subject Land and remove any buildings; structures or other things whatsoever constructed, erected, placed or maintained on the Subject Land contrary to any term, covenant or condition of this easement and to do any work necessary to eliminate the effects of aRy excavation or placement of sand, Soil, rock or gravel or any other materiel done or ple ed on the Subject Land contrary to any term. covenant or conditions of this easement. . • 2. :GRANTOR covenants and agrees for himself and his successors and assigns es -follows: (A) That he shall not erect, consltruct, place or maintain, or permit the erection, construction, placement or maintenance of any building or structure or other thing whah�soever on the Subject Und other than such buildings, structures and other thing as may be permitted pursuant to paragraph 1.(A) immediately hereinabovs. That he shall not use the Subject Land far any purpose except as OPEN SPACE and/or PARK and RECREATIONAL(purposes. (C) That he shall not excavate oT grade or permit any excavating or grading :to be done. or place or a114w to be placed any sand. soil. rock. gravel or other material whatsoever}on the Subject Land without the written permission of the County or its successors or assigns: provided, however, xhat Grantor may excavate, grade or place sand, soil, rock, gravel or `otrier material on the Subject Land as may be permitted by the :Count% pursuant to paragraph 1.(A) hereinabove. ! (D) i (0) That the terms, covenants and conditions set forth herein may be specifically enforced or enjoined by proceedings in the Superior Court of the State of California. :lie Easearent,shall .,bi�rnNid the Grantor aid his successors and assigns. r Executed thisAl day of O&7D$Ek , 1978. • . PAWN AUTHOR , F THE.CITY OF i_;w NA xrCALIfORNIA • '4:;e air; yv ": 4 !rJ!;/f' 44 moni ,Peterson, Secretary r9n EXF:IBIT wC Exhibit E" Page 17 of 244 Attachment No. 1 EXHIBIT C RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement ("Agreement") is effective this of 20_, by and between the COUNTY OF SAN DIEGO, ("County"), a political subdivision of the State of California, and the PARKING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body corporate and politic created pursuant to the Parking Law of 1949, ("Parking Authority") with reference to the following facts: RECITALS A. County owns a strip of land just west of Bonita Center Road in National City, California that includes a trail/walkway. B. Parking Authority is obligated to install, or cause to be installed, a vegetated buffer along the north side of the trail/walkway adjacent to a retaining wall that will be installed as part of the commercial development to be constructed just north of the trail/walkway. C. To allow Parking Authority or its agents, assigns, contractors or successors in interest., to enter onto County property to install the and monitor the buffer and to monitor and repair the retaining wall and to remove graffiti from it, County and Parking Authority are entering into this Agreement. NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Authority tQ Enter. Subject to the terms and conditions set forth below, the County hereby grants Parking Authority a right of entry over that property defined as a portion of Assessor's Parcel Number 564-471-111 as further described in Exhibit "1" attached hereto ("Walkway Area"), solely for the following purposes: a. To install, monitor and repair a vegetated buffer on the north side of the trail/walkway as specified in paragraph 7 of the Option to Purchase Agreement between the County and the Parking Authority of the City of National City; b. To monitor the retaining wall and, if necessary, repair it; and Exhibit "E" Page 18 of 24 Attachment No. 1 c. To remove graffiti from the retaining wall. 2. Strict Construction. This Agreement shall be strictly construed, and no work other than that specifically stated herein is authorized. This Agreement is not transferable. 3. Term. This Agreement shall commence , 20_, and shall terminate on , 20_. The Assistant Director of the Department of General Services may extend the Term of this Agreement at any time by giving written notice to Parking Authority. 4. Notice Prior to Starting Work. Before starting to install the vegetated buffer, Parking Authority shall notify the Assistant Director, Department of General Services or designee in writing. Such notice shall be given at least three days in advance of the date the work is to commence. 5. Permit on Site. This Agreement shall be kept at the work site and must be shown on demand to any representative of the Department of General Services. 6. Permits From Other Agencies. Parking Authority shall secure all other permits and approvals, if any, needed to install the vegetated buffer. 7. Access. Parking Authority shall not unreasonably obstruct the flow of pedestrians or others using the Walkway Area or impede access to the Walkway Area. 8. Supervision_ of County. All work associated with this Agreement shall be done subject to the supervision of, and to the satisfaction of, the County. 9. Compliance With Stormwater Laws. Parking Authority's entry on to the Walkway Area is subject to federal, state and local laws regarding the discharge into the stormwater conveyance system of pollutants. Compliance with these laws may require Parking Authority to develop, install, implement and maintain pollution prevention measures, source control measures and Best Management Practices {"BMPs"). BMPs can include operational practices; water or pollutant management practices; physical site features; or devices to remove pollutants from stormwater, to affect the flow of stormwater or to infiltrate stormwater to the ground. BMPs applicable to Parking Authority's work on the Walkway Area may include a requirement that all materials, wastes or equipment with the potential to pollute urban runoff be stored in a manner that either prevents contact with rainfall and stormwater, or contains contaminated runoff for treatment and disposal. Parking Authority shall use, operate, maintain, develop, redevelop and retrofit the property, as necessary, in accordance with all applicable federal, state and local laws restricting the discharge Exhibit "E" Page 19 of 24 Attachment No. 1 of non-stormwater at or from the property; and all such laws, regulations, or local guidance requiring pollution prevention measures, source control measures, or the installation or use of BMPs. Parking Authority shall develop, install, implement and/or maintain at Parking Authority's sole cost and expense, any BMPs or similar pollution control devices required by federal, state and/or local taw and any implementing regulations or guidance. Parking Authority understands and acknowledges that the stormwater and non- stormwater requirements applicable to Parking Authority's work on the Walkway Area may be changed from time to time by federal, state and/or local authorities, and that additional requirements may become applicable based on changes in Parking Authority's activities or development or redevelopment by Parking Authority or County. Parking Authority shall develop, install, implement, and maintain such additional BMPs and/or other pollution control practices at the Walkway Area at Parking Authority's sole cost and expense. To the extent there is a conflict between any federal, state or local law, Parking Authority shall comply with the more restrictive provision. If County receives any fine or fines from any regulatory agency as a result of Parking Authority's failure to comply with applicable stormwater laws as set forth in this Agreement, Parking Authority shall reimburse County for the entire fine amount. 10. Care of Drainage. If the proposed work interferes with the established drainage, ample provision shall be made by Parking Authority to provide for the drainage as may be directed by the County. 11. Repair. Parking Authority shall ensure that access through and work in the Walkway Area is done in a safe and prudent manner. Parking Authority shall promptly repair and make good any damage Parking Authority causes to any portion of the Walkway Area. 12. Insurance. Parking Authority is fully self -insured for damage resulting from liability of Parking Authority or any of Parking Authority's agents or employees. If Parking Authority ceases to be self -insured during the Tcrm of this Agreement, Parking Authority shall furnish to County proof of insurance in a form and amounts satisfactory to County. The County's requirements shall be reasonable, but shall be designed to insure protection from risks that exist when Parking Authority ceases to be self -insured. If Parking Authority enters into a contract to have any of the work that is listed in paragraph 1 above done by a third party, Parking Authority shall require the third party to have in effect for the duration of the project: (a) Commercial General Liability Insurance written on an "occurrence basis" in an amount of at least $1 million per occurrence and $2 million aggregate with the County of San Diego Exhibit "E" Page 20 of 24 Attachment No. 1 named as an "additional insured;" and (b) statutory amount of workers' compensation insurance for the benefit of the third party's employees. 13. Defense and indemnity. a. The County shall defend and indemnify the Parking Authority, its agents, officers and employees (collectively, referred to in this paragraph as "Parking Authority"), from any claim, action or proceeding against Parking Authority, arising solely out of the acts or omissions of County in relation to this Agreement. At its sole discretion, Parking Authority may participate at its own expense in the defense of any claim, action or proceeding, but such participation shall not relieve County of any obligation imposed by this Agreement. Parking Authority shall notify County promptly of any claim, action or proceeding and cooperate fully in the defense. b. The Parking Authority shall defend and indemnify the County, its agents, officers and employees (collectively referred to in this paragraph as "County") from any claim, action or proceeding against County, arising solely out of the acts or omissions of the Parking Authority in relation to this Agreement. At its sole discretion, County may participate at its own expense in the defense of any such claim, action or proceeding, but such participation shall not relieve Parking Authority of any obligation imposed by this Agreement. County shall notify Parking Authority promptly of any claim, action or proceeding and cooperate fully in the defense. e. The County shall defend itself, and the Parking Authority shall defend itself, from any claim, action or proceeding arising out of the concurrent acts or omissions of County and Parking Authority. In such cases, County and Parking Authority agree to retain their own legal counsel, bear their own defense costs, and waive their right to seek reimbursement of such costs, except as provided in subparagraph c below. d. Notwithstanding subparagraph c above, in cases where County and Parking Authority agree in writing to a joint defense, County and Parking Authority may appoint joint defense counsel to defend the claim, action or proceeding arising out of the concurrent acts or omissions of County and Parking Authority. Joint defense counsel shall be selected by mutual agreement of County and Parking Authority. County and Parking Authority agree to share the costs of such joint defense and any agreed settlement in equal amounts, except as provided in subparagraph e below. County and Parking Authority further agree that neither party may bind the other to a settlement agreement Exhibit "E" Page 21 of 24 Attachment No. 1 without the written consent of both County and Parking Authority. e. Where a trial verdict or Arbitration award allocates or determines the comparative fault of the parties, County and Parking Authority may seek reimbursement and/or reallocation of defense costs, settlement payments, judgments and awards, consistent with such comparative fault. 14. Hazardous Substances. Parking Authority shall be solely responsible for fully complying with all present or future rules, regulations, restrictions, ordinances, statutes, lawn and orders of any governmental entity regarding contaminated soils, hazardous materials or environmental clean-up, regardless of whether or not the obligation to comply is on the land owner. If any hazardous substance spills, leaks or is discharged from any equipment or facility that Parking Authority brings to or installs, parks or drives on to the Walkway Area, Parking Authority shall immediately make all repairs necessary to prevent further spills, leaks or discharges and shall immediately clean up and promptly dispose of the spilled hazardous substance and any soil contaminated by the spill. if the Parking Authority fails to make the required repairs, to clean up the spill or to properly dispose of any contaminated soil, County may after written notice to Parking Authority take all steps County deems necessary to make the necessary repairs, to clean up the spill and to dispose of any contaminated soil. The Parking Authority shall reimburse the County for the cost of all repair and clean up work that the County does. The Parking Authority shall reimburse the County for this expense within 30 days of receiving a bill for this work from the County. The Parking Authority shall be solely responsible for paying all fines, damages and penalties imposed by any governmental agency regarding the Parking Authority's production, storage, distribution, processing, handling, disposing, spilling, leaking or discharging of any hazardous substance on the Walkway Area. Parking Authority shall indemnify, defend, reimburse and hold harmless County, its employees, officers and agents from any and all liability, claims, damages or injuries to any person, including injury to the County or any of County's employees, officers, agents, representatives, guests, licensees, invitees, patrons, or of any other person whomsoever, and all expenses of investigating and defending against same, arising from or alleged to have arisen from or in connection with hazardous or toxic materials or waste Parking Authority brings to or spills or discharges on the Walkway Area or migrating to or from the Walkway Area or arising in any manner whatsoever out of the violation of any governmental regulation pertaining to hazardous or toxic materials or waste which condition exists after the execution of Exhibit "E" Page 22 of 24 Attachment No. 1 this Agreement. 15. No Implied Easement. Nothing in this Agreement shall be construed to grant Parking Authority an easement by implication, prescription, or other operation of law, or to extend the Term of the Agreement past its expiration date as stated herein. 16. Effective, This Agreement shall not be effective until it is signed by Parking Authority in the space provided below and executed by the Assistant Director, Department of General Services, of the County of San Diego. Date: PARKING AUTHORITY OF THE CITY OF NATIONAL PARKING Date: By: Name Title COUNTY OF SAN DIEGO By: Ken Bitar, Assistant Director, Department of General Services Exhibit "E" Page 23 of 24 Attachment No. 1 EXHIBIT "D" NATIONAL CITY PARCEL LEGAL. DESCRIPTION PAGE 1 OF 3 THE LAND DESCRIBED HEREIN IS A PORTION OF LOT 14 OF THE NATIONAL CITY TRACT OF THE PLAZA BONITA SHOPPING CENTER, ACCORDING TO MAP THEREOF NO. 10337 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER FEBRUARY 24, 1982, LOCATED IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY MOST CORNER OF SAID LOT 14, THENCE ALONG THE GENERAL WESTERLY BOUNDARY THEREOF NORTH 16°48'07" WEST 2.46 FEET TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 1085.00 FEET, A LINE RADIAL TO SAID POINT BEARS NORTH 00°13'26" EAST; THENCE LEAVING SAID WESTERLY BOUNDARY, EASTERLY ALONG SAID CURVE 267.27 FEET THROUGH A CENTRAL ANGLE OF 14°06'49"; THENCE SOUTH 75°39'45" EAST 27.25 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUT Y, HAVING A RADIUS OF 760.17 FEET; THENCE EASTERLY ALONG SAID CURVE 45.051.1:6T THROUGH A CENTRAL ANGLE OF 3°73'44" TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 675.00 FEET, A LINE RADIAL TO SAID POINT BEARS NORTH 11°24'49" EAST; THENCE EASTERLY ALONG SAID CURVE 141.91 I+EE1 THROUGH A CENTRAL ANGLE OF 12°02'46" TO A POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS NORTH 23°27'35" EAST; THENCE NORTH 69°50'11" EAST 56.68 FEET TO THE GENERAL NORTHEASTERLY BOUNDARY OF SAID LOT 14 AND THE GENERAL SOUTHWESTERLY RIGHT-OF-WAY OF PLAZA BONITA ROAD, 98.00 FEET WIDE, SAID POINT BEING THE BEGINNING OF A NON - TANGENT CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 419.13 FEET, A LINE RADIAL TO SAID POINT BEARS SOUTH 63°30'11" WEST; THENCE SOUTHEASTERLY ALONG SAID CURVE 104.50 FEET THROUGH A CENTRAL ANGLE OF 14° 17'05"; THENCE SOUTH 40°46'54" EAST 339.82 FEET; THENCE NORTH 45°24'52" WEST 109.80 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1205.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE 814.87 FEET THROUGH A CENTRAL ANGLE OF 38°44'45" TO A POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS NORTH 05°50'23" EAST, SAID POINT BEING THE POINT OF BEGINNING. CONTAINS 26,103 SQUARE FEET OR 0.5992 ACRES OF LAND, MORE OR LESS. Exhibit "E" Page 24 of 24 RESOLUTION NO. 2015 — RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN OPTION AGREEMENT WITH CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, A VIRGINIA LIMITED LIABILITY COMPANY, FOR THE PURCHASE OF APPROXIMATELY 9.5 TO 11 ACRES, WITH THE OPTION OF UP TO 15.08 ACRES, OF A PARKING AUTHORITY -OWNED 15.08 ACRE VACANT PARCEL OF LAND LOCATED AT THE SOUTHEAST CORNER OF HIGHWAYS 805 AND 54 IN NATIONAL CITY IN AN AMOUNT NO LESS THAN $3,500,000 FOR THE FIRST 9.5 ACRES AND ADDITIONAL COMPENSATION FOR EACH SQUARE -FOOT IN EXCESS OF 9.5 ACRES WHEREAS, the Parking Authority of the City of National City ("Parking Authority") is the owner of a 15.08-acre parcel of land ("Entire Site") 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 to 11 acres of the site, with the option of up to 15.08 acres ("Property"), 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, on October 21, 2014, pursuant to Resolution No. 2014-1, the Parking Authority of the City of National City approved an Exclusive Negotiation Agreement ("ENA") between the Authority and CarMax; and WHEREAS, in 1978, the Authority conveyed to the County of San Diego an easement for open space and park purposes over the Entire 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; and WHEREAS, on April 3, 2007, the Authority and the County entered into an Option to Purchase Agreement setting forth the terms of an option whereby the Authority could purchase the Easement from the County; and WHEREAS, in the past, County staff have represented that they will exercise their best efforts to relinquish the Easement over the Entire 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; and WHEREAS, the Option Agreement has been amended seven times, most recently on November 18, 2014 pursuant to Resolution No. 2014-1, to extend the term of the Option Agreement; and WHEREAS, the purchase of the Easement by the Parking Authority is a condition to close on the sale of the Property to CarMax; and WHEREAS, 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 #2003111 073, November 2007 ("FEIR") for the Overall Site on November 20,2007, pursuant to Resolution No. 2007-259; and Resolution No. 2015 — Page Two WHEREAS, 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; and WHEREAS, the purpose of the Option Agreement is to ensure that the Parking Authority of the City of National City retains its discretion to approve or disapprove the sale of the Property until after CEQA review is completed; and WHEREAS, the purpose of this Option Agreement is also to ensure that the City Council of the City of National City retains its total discretion to make modifications to the proposed discretionary approvals, adopt alternatives, impose mitigations measures, or disapprove the Project until after CEQA review is completed; and WHEREAS, the purchase price to be paid by CarMax for the Property shall be the sum of (i) Three Million Five Hundred Thousand Dollars ($3,500,000.00) for 9.5 acres, (ii) Five and 91/100 Dollars ($5.91) per square foot for up to one and one-half (1.5) acres of additional acreage, and (iii) Seven and 15/100 Dollars ($7.15) per square foot for any additional acreage in excess of one and one-half (1.5) acres. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute an Option 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 Option Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 18th day of August, 2015. Ron Morrison, Chairman ATTEST: Leslie Deese, Secretary APPROVED AS TO FORM: Claudia Gacitua Silva Legal Counsel RESOLUTION NO. 2015 — 3 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN OPTION AGREEMENT WITH CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, A VIRGINIA LIMITED LIABILITY COMPANY, FOR THE PURCHASE OF APPROXIMATELY 9.5 TO 11 ACRES, WITH THE OPTION OF UP TO 15.08 ACRES, OF A PARKING AUTHORITY -OWNED 15.08 ACRE VACANT PARCEL OF LAND LOCATED AT THE SOUTHEAST CORNER OF HIGHWAYS 805 AND 54 IN NATIONAL CITY IN AN AMOUNT NO LESS THAN $3,500,000 FOR THE FIRST 9.5 ACRES AND ADDITIONAL COMPENSATION FOR EACH SQUARE -FOOT IN EXCESS OF 9.5 ACRES WHEREAS, the Parking Authority of the City of National City ("Parking Authority") is the owner of a 15.08-acre parcel of land ("Entire Site") 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 to 11 acres of the site, with the option of up to 15.08 acres ("Property"), 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, on October 21, 2014, pursuant to Resolution No. 2014-1, the Parking Authority of the City of National City approved an Exclusive Negotiation Agreement ("ENA") between the Authority and CarMax; and WHEREAS, in 1978, the Authority conveyed to the County of San Diego an easement for open space and park purposes over the Entire 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; and WHEREAS, on April 3, 2007, the Authority and the County entered into an Option to Purchase Agreement setting forth the terms of an option whereby the Authority could purchase the Easement from the County; and WHEREAS, in the past, County staff have represented that they will exercise their best efforts to relinquish the Easement over the Entire 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; and WHEREAS, the Option Agreement has been amended seven times, most recently on November 18, 2014 pursuant to Resolution No. 2014-1, to extend the term of the Option Agreement; and WHEREAS, the purchase of the Easement by the Parking Authority is a condition to close on the sale of the Property to CarMax; and WHEREAS, 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 #2003111 073, November 2007 ("FEIR") for the Overall Site on November 20,2007, pursuant to Resolution No. 2007-259; and Resolution No. 2015 — 3 Page Two WHEREAS, 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; and WHEREAS, the purpose of the Option Agreement is to ensure that the Parking Authority of the City of National City retains its discretion to approve or disapprove the sale of the Property until after CEQA review is completed; and WHEREAS, the purpose of this Option Agreement is also to ensure that the City Council of the City of National City retains its total discretion to make modifications to the proposed discretionary approvals, adopt alternatives, impose mitigations measures, or disapprove the Project until after CEQA review is completed; and WHEREAS, the purchase price to be paid by CarMax for the Property shall be the sum of (i) Three Million Five Hundred Thousand Dollars ($3,500,000.00) for 9.5 acres, (ii) Five and 91/100 Dollars ($5.91) per square foot for up to one and one-half (1.5) acres of additional acreage, and (iii) Seven and 15/100 Dollars ($7.15) per square foot for any additional acreage in excess of one and one-half (1.5) acres. NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute an Option 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 Option Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 18th day of August, 2015. on Morrison, Chairman ATTEST: Leslie Deese, Secretary PPROS TO FO udia Gacitu. Silv Legal Co sel Passed and adopted by the Parking Authority of the City of National City, California, on August 18, 2015 by the following vote, to -wit: Ayes: Boardmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. 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. 2015-3 of the Parking Authority of the City of National City, California, passed and adopted on August 18, 2015. Secretary, Parking Authority By: Deputy Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil -0-1- CALIFORNIA NATIONAL CITY , 3,CO3 INCORPORATED Office of the City Attorney MEMORANDUM TO: City Clerk FROM: Ginny Miller, Legal Assista SUBJECT: CarMax Option Agreemen City Attorney Claudia Gacitua Silva Deputy City Attorney Jennifer Knight DATE: September 9, 2015 Attached for your files is an original, fully -executed Option Agreement between the City of National City and CarMax Auto Superstores California, LLC, dated August 18, 2015. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327