HomeMy WebLinkAbout2016 CON Palm Plaza Associates - Purchase and Sale Agreement - 1640 E Plaza BlvdREAL PROPERTY PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
by and between
CITY OF NATIONAL CITY, a California municipal corporation
and
PALM PLAZA ASSOCIATES, LLC, a California limited liability company
REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
1640 East Plaza Blvd., National City, CA
(APN # 557-410-20)
This REAL PROPERTY PURCHASE AND SALE GREEMENT AND JOINT
ESCROW INSTRUCTIONS ("Agreement") is dated as of A t • uld" , 2016, and is
entered into by and between the CITY OF NATIONAL CIT , a California municipal
corporation ("City" or "Seller"), and PALM PLAZA ASSOCIATES, LLC, a California
limited liability company ("Buyer"). Seller and Buyer enter into this Agreement with
reference to the following recitals of fact (each, a "Recital"):
RECITALS
A. The Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property
generally located at 1640 East Plaza Blvd. (Assessor's Parcel No. 557-410-20) within the City
of National City, County of San Diego, State of California, as specifically described in Section
1 of this Agreement as the "Property"; and
B. Pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and
pursuant to California Health and Safety Code Section 34173, Successor Agency to the
Community Development Commission as the National City Redevelopment Agency
("Successor Agency") became the successor agency and successor -in -interest to the
Redevelopment Agency, confirmed by Resolution No. 2012-15 adopted on January 10, 2012,
by the City Council of the City; and
C. In accordance with California Health and Safety Code Section 34191.5, the Property
was listed on Successor Agency's Long Range Property Management Plan ("LRPMP"), which
provides that the Property will be transferred to and retained by the City for future development, and
the LRPMP has been approved by the Oversight Board of the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency ("Oversight Board") and
the California Department of Finance; and
D. At its regular meeting on May 17, 2016, the City of National City met and pursuant
to Resolution No. 2016-70 accepted the transfer of the Property, among other properties, from the
Successor Agency to the City in accordance with the LRPMP; and
E. At its regular meeting on May 17, 2016, the Successor Agency met and pursuant to
Resolution No. 2016-77 approved the transfer of the Property, among other properties, from the
Successor Agency to the City in accordance with the LRPMP; and
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F. At its regular meeting on May 18, 2016, the Oversight Board met and pursuant to
Resolution No. 2016-04 approved and directed the transfer of the Property, among other properties,
from the Successor Agency to the City in accordance with the LRPMP; and
G. The Successor Agency has transferred (or will transfer prior to or concurrently with
the Close of Escrow) the Property to the City; and
H. Buyer has made an offer to purchase the Property from Seller at the Property's current
fair market value, and Seller desires to sell the Property to Buyer pursuant to the terms and conditions
of this Agreement.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND COVENANTS
OF SELLER AND BUYER SET FORTH IN THIS AGREEMENT AND OTHER GOOD AND
VALUABLE CONSIDERATION, SELLER AND BUYER AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 Definitions. The following words, terms and phrases are used in this Agreement
with the following meanings, unless the particular context or usage of a word, term or phrase
requires another interpretation:
1.1.1 Affiliate. (1) any Person directly or indirectly controlling, controlled by
or under common control with another Person; (2) any Person owning or controlling ten percent
(10%) or more of the outstanding voting securities of such other Person; or (3) if that other
Person is an officer, director, member or partner, any company for which such Person acts in
any such capacity. The term "control" as used in the immediately preceding sentence, means the
power to direct the management or the power to control election of the board of directors. It
shall be a presumption that control with respect to a corporation or limited liability company is
the right to exercise or control, directly or indirectly, more than fifty percent (50%) of the voting
rights attributable to the controlled corporation or limited liability company, and, with respect to
any individual, partnership, trust, other entity or association, control is the possession, indirectly
or directly, of the power to direct or cause the direction of the management or policies of the
controlled entity. It shall also be a presumption that the manager of a limited liability company
controls such limited liability company.
1.1.2 Agreement. This Real Property Purchase and Sale Agreement and Joint
Escrow Instructions by and between Seller and Buyer, including all of the attached Exhibits.
1.1.3 Approval. Any approval, consent, certificate, ruling, authorization, or
amendment to any of the foregoing, as shall be necessary or appropriate under any Law to complete the
purchase and sale ofthe Property.
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1.1.4 Bankruptcy Law. Title 11 of the United State Code or any other or successor
State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee,
bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters.
1.1.5 Bankruptcy Proceeding. Any proceeding, whether voluntary or involuntary,
under any Bankruptcy Law.
1.1.6 Business Day. Any weekday on which the Seller is open to conduct
regular governmental functions.
1.1.7 Buyer. Palm Plaza Associates, LLC, a California limited liability company,
and any permitted assignee of or successor to the rights, powers, or responsibilities of Buyer under
this Agreement.
1.1.8 Buyer Title Policy. A standard CLTA owners' policy of title insurance
issued by the Title Company, with coverage in the amount of the Purchase Price, showing title to the
Property vested in Buyer, subject to Permitted Exceptions.
1.1.9 CEQA. The California Environmental Quality Act, Public Resources Code
Section 21000, et seq. and implementing regulations contained in Title 14, Chapter 3, Section 15000, et seq. of
the California Code of Regulations.
1.1.10 CEQA Documents. Any exemption determination, any Negative Declaration
(mitigated or otherwise) or any Environmental Impact Report (including any addendum or amendment to, or
subsequent or supplemental Environmental Impact Report) required orpemiitted by any Government, pursuant
to CEQA, to issue any discretionary Approval required to approve this Agreement.
1.1.11 City or Seller. The City of National City, a California municipal
corporation, and any permitted assignee of or successor to the rights, powers, or responsibilities of
Seller under this Agreement.
1.1.12 City Manager. The City Manager of Seller or his or her designee or successor
in function.
1.1.13 Claim. Any claim, loss, cost, damage, expense, liability, lien, action,
cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge,
award, assessment, fine or penalty of any kind (including consultant and expert fees and
expenses and investigation costs of whatever kind or nature and, if an Indemnitor improperly
fails to provide a defense for an Indemnitee, then Legal Costs of the Indemnitee) and any
judgment.
1.1.14 Close of Escrow. The first date on which the Escrow Agent has filed
the Grant Deed with the County for recording in the official records of the County.
1.1.15 Control. Possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether by ownership or Equity
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Interests, by contract or otherwise.
1.1.16 County. The County of San Diego, California.
1.1.17 Default. An Escrow Default, a Monetary Default, or a Non -Monetary
1.1.18 Default Interest. Interest at an annual rate equal to the lesser of (a) eight
percent (8%) per annum; or (b) the Usury Limit
1.1.19 Deposit. Twenty Thousand and No/100 Dollars ($20,000).
Default.
1.1.20 Due Diligence Materials. All of the following: (a) the Preliminary Report; (b)
any and all environmental reports relating to the Property in the possession of Seller; and (iii) copies of any
and all material documents that pertain to the physical condition of the Property in the possession of Seller.
1.1.21 Due Diligence Period. The period of time commencing upon the Effective Date
and expiring ninety (90) days thereafter.
1.1.22 Effective Date. Defined in Section 2 of this Agreement.
1.1.23 Environmental Claim. Any and all claims, demands, damages, losses,
liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs,
disbursements or expenses, including Legal Costs and fees and costs of environmental consultants and other
experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever,
directly or indirectly, relating to or arising from any actual or alleged violation of any Environmental Law
or Hazardous Substance Discharge.
1.1.22 Environmental Laws. All Federal, State, local (including City) laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, or requirements of any Government authority, now
in effect or enacted after the Effective Date of this Agreement, regulating, relating to, or imposing liability
or standards of conduct concerning any Hazardous Substance, the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use or pertaining to
occupational health or industrial hygiene or occupational or environmental conditions on, under or about
the Property, as now or may at any later time be in effect, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA") [42 U.S.C. § 9601 etseq.];
the Resource Conservation and Recovery Act of 1976 ("RCRA") [42 U.S.C. § 6901 et seq.];
the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33
U.S.C. § 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 U.S.C. § 2601 et seq.];
the Hazardous Materials Transportation Act ("HMTA") [49 U.S.C. § 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 U.S.C. § 6901 et seq.]; the Clean Air Act [42 U.S.C. § 7401 et seq.];
the Safe Drinking Water Act [42 U.S.C. § 300f et seq.]; the Solid Waste Disposal Act [42 U.S.C.
§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C. § 101 et seq.]; the
Emergency Planning and Community Right to Know Act [42 U.S.C. § 11001 et seq.]; the
Occupational Safety and Health Act [29 U.S.C. §§ 655 and 657]; the California Underground
Storage of Hazardous Substances Act [California Health and Safety Code § 25300 et seq.]; the
California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code
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§ 24249.5 et seq.]; or the Porter -Cologne Water Quality Act [California Water Code § 13000 et
seq.]; together with any regulations promulgated under the authorities referenced in this Section.
1.1.23 Equity Interest. All or any part of any direct equity or ownership
interest(s) (whether stock, partnership interest, beneficial interest in a trust, membership interest in
a limited liability company, or other interest of an ownership or equity nature) in any entity, at any
tier of ownership, that directly owns or holds any ownership or equity interest in a Person.
1.1.24 Escrow. An escrow, as defined in California Civil Code Section 1057
and California Financial Code Section 17003(a), that is conducted by the Escrow Agent with
respect to the sale of the Property from Seller to Buyer pursuant to this Agreement.
1.1.25 Escrow Agent. Carla Burchard, Stewart Title of California, Inc., or such
other Person mutually agreed upon in writing by both Seller and Buyer.
1.1.26 Escrow Closing Date. Subject to the immediately following paragraph
and subject to satisfaction (or waiver by the benefitted Party or Parties) of all of the conditions
to closing set forth in Sections 4.4 and 4.5, unless extended by the Parties as set forth in Section
4.9 below, the Escrow Closing Date shall occur on or before one hundred eighty (180) days
following the Effective Date.
In the event the condition set forth in Section 4.5.1 below has not been satisfied in time
for the Close of Escrow to occur on or before one hundred eighty (180) days following the
Effective Date, the outside Escrow Closing Date provided for in the preceding paragraph shall
be extended from one hundred eighty (180) days following the Effective Date to the date that
is two (2) weeks after the Parties receive notice that the condition set forth in Section 4.5.1 has
been satisfied or June 30, 2017, whichever date is earlier. There shall be no extension
permitted of the June 30, 2017 outside Escrow Closing Date.
1.1.27 Escrow Closing Statement. A statement prepared by the Escrow Agent
indicating, among other things, the Escrow Agent's estimate of all funds to be deposited or
received by Seller or Buyer, respectively, and all charges to be paid by Seller or Buyer,
respectively, through the Escrow.
1.1.28 Escrow Default. The unexcused failure of a Party to submit any
document or funds to the Escrow Agent as reasonably necessary to close the Escrow, pursuant to
the terms and conditions of this Agreement.
1.129 Escrow Opening Date. The first date on which a copy of this
Agreement, signed by both Seller and Buyer, is deposited with the Escrow Agent, as provided in
Section 3.1 of this Agreement.
1.1.30 Event of Default. The occurrence of any one or more of the following:
(a) Monetary Default. A Monetary Default that continues for fifteen
(15) calendar days after Notice to the Party in Default, specifying in reasonable detail the amount
of money not paid and the nature and calculation of each such amount or the bond, surety, or
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insurance not provided;
(b) Escrow Closing Default. An Escrow Default that continues for seven
(7) calendar days after Notice to the Party in Default, specifying in reasonable detail the
document or funds not submitted to the Escrow Agent;
(c) Bankruptcy or Insolvency. Buyer admits in writing that Buyer is unable
to pay Buyer's debts as they become due or Buyer becomes subject to any Bankruptcy Proceeding, or a
custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure
is made with respect to, substantially all of Buyer's assets or Buyer's interest in this Agreement or the
Property;
(d) Transfer. The occurrence of a Transfer, whether voluntarily or
involuntarily or by operation of Law, in violation of the terms or conditions or this Agreement;
(e) Non -Monetary Default. Any Non -Monetary Default, other than
those specifically addressed in Subsections (c) or (d) above, that is not cured within fifteen (15)
calendar days after Notice to the Party in Default describing the Non -Monetary Default in
reasonable detail. In the case of such a Non -Monetary Default that cannot with reasonable
diligence be cured within fifteen (15) calendar days after the effective date of such Notice, an Event
of Default shall occur, if the Party in Default does not do all of the following: (a) within fifteen
(15) calendar days after Notice of such Non -Monetary Default, advise the other Party of the
intention of the Party in Default to take all reasonable steps to cure such Non -Monetary Default;
(b) duly commence such cure within such fifteen (15) calendar day period; and (c) diligently
prosecute such cure to completion within a reasonable time under the circumstances.
1.1.31 Federal. The federal government of the United States of America.
1.1.32 FIRPTA Affidavit. A certification that Seller is not a "foreign person"
within the meaning of such term under Section 1445 of the United States Internal Revenue Code.
1.1.33 Form 593. A California Franchise Tax Board Form 593-C.
1.1.34 Government. Any and all courts, boards, agencies, commissions,
offices, or authorities of any nature whatsoever of any governmental unit (Federal, State, County,
district, municipal, City or otherwise) whether now or later in existence. It is acknowledged
that Seller is a form of Government.
1.1.36 Grant Deed. A grant deed conveying Seller's interest in the Property
from Seller to Buyer, at the Close of Escrow, substantially in the form of Exhibit "B" attached to
this Agreement and incorporated herein by this reference.
1.1.37 Hazardous Substance. Any flammable substance, explosive,
radioactive material, asbestos, asbestos -containing material, polychlorinated biphenyl, chemical
known to cause cancer or reproductive toxicity, pollutant, contaminant, hazardous waste,
medical wastes, toxic substance or related material, petroleum, petroleum product and any
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"hazardous" or "toxic" material, substance or waste that is defined by those or similar terms or is
regulated as such under any Law, including any material, substance or waste that is: (a) defined
as a "hazardous substance" under Section 311 of the Water Pollution Control Act (33 U.S.C. §
1317), as amended; (b) designated as "hazardous substances" pursuant to 33 U.S.C. § 1321; (c)
defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. § 6901 et seq., as amended; (d) defined as a "hazardous substance" or
"hazardous waste" under Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act
of 1986, 42 U.S.C. § 9601 et seq., or any so-called "superfund" or "superlien" law; (e) defined
as a "pollutant" or "contaminant" under 42 U.S.C. § 9601(33); (f) defined as "hazardous waste"
under 40 C.F.R. Part 260; (g) defined as a "hazardous chemical" under 29 C.F.R. Part 1910; (h)
any matter within the definition of "hazardous substance" set forth in 15 U.S.C. § 1262; (i) any
matter, waste or substance regulated under the Toxic Substances Control Act ("TSCA") [15
U.S.C. Sections 2601 et seq.]; (j) any matter, waste or substance regulated under the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 1801 et seq.; (k) those substances listed in the
United States Department of Transportation (DOT) Table [49 C.F.R. 172.101]; (1) any matter,
waste or substances designated by the EPA, or any successor authority, as a hazardous substance
[40 C.F.R. Part 302]; (m) defined as "hazardous waste" in Section 25117 of the California Health
and Safety Code; (n) defined as a "hazardous substance" in Section 25316 of the California Health
and Safety Code; (o) subject to any other Law regulating, relating to or imposing obligations,
liability or standards of conduct concerning protection of human health, plant life, animal life,
natural resources, property or the enjoyment of life or property free from the presence in the
environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (p)
that is or becomes regulated or classified as hazardous or toxic under Law or in the regulations
adopted pursuant to Law.
1.1.38 Hazardous Substance Discharge. Any deposit, discharge, generation,
release or spill of a Hazardous Substance that occurs at, on, under, into or from the Property, or
during transportation of any Hazardous Substance to or from the Property, or that arises at any
time from any construction, installation, use or operation or other activities conducted at, on,
under or from the Premises, whether or not caused by a Party.
1.1.39 Indemnify. Where this Agreement states that any Indemnitor shall
"indemnify" any Indemnitee from, against, or for a particular Claim, that the Indemnitor shall
indemnify the Indemnitee and protect, defend and hold the Indemnitee harmless from and against
such Claim (alleged or otherwise). "Indemnified" shall have the correlative meaning.
1.1.40 Indemnitee. Any Person entitled to be Indemnified under the terms of
this Agreement.
1.1.41 Indemnitor. A Party that agrees to Indemnify any other Person under
the terms of this Agreement.
1.1.42 Law. Every law, ordinance, requirement, order, proclamation, directive,
rule or regulation of any Government applicable to the Property, in any way, including relating to
any development, construction, use, maintenance, taxation, operation, occupancy of or
environmental conditions affecting the Property or otherwise relating to this Agreement or any
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Party's rights, obligations or remedies under this Agreement, or any Transfer of any of the
foregoing, whether in force on the Effective Date or passed, enacted, modified, amended or
imposed at some later time, subject in all cases, however, to any applicable waiver, variance
or exemption.
1.1.43 Legal Costs. In reference to any Person, all reasonable costs and
expenses such Person incurs in any legal proceeding or other matter for which such Person is
entitled to be reimbursed for its Legal Costs, including reasonable attorneys' fees, court costs and
expenses and consultant and expert witness fees and expenses.
1.1.44 Lender. The holder of any Security Instrument and the successors and assigns
of such holder.
1.1.45 Monetary Default. Any failure by either Party to pay or deposit, when
and as this Agreement requires, any amount of money, bond, surety or evidence of any insurance
coverage required to be provided under this Agreement, whether to or with a Party or a Third
Person.
1.1.46 Non -Monetary Default. The occurrence of any of the following, except
to the extent constituting a Monetary Default or an Escrow Default: (a) any failure of a Party to
perform any of such Party's obligations under this Agreement; (b) any failure of a Party to
comply with any material restriction or prohibition in this Agreement; or (c) any other event or
circumstance that, with passage of time or giving of Notice, or both, would constitute a breach of
this Agreement by a Party.
1.1.47 Notice. Any consent, demand, designation, election, notice, or request
relating to this Agreement, including any Notice of Default. All Notices must be in writing.
1.1.48 Notice of Default. Any Notice claiming or giving Notice of a Default
1.1.49 Notify. To give a Notice.
1.1.50 Parties. Collectively, Seller and Buyer.
1.1.51 Party. Individually, either Seller or Buyer, as applicable.
1.1.52 Permitted Exception. All of the following: (a) the printed exceptions and
exclusions in the Buyer Title Policy; (b) all items shown in the Preliminary Report as exceptions to
coverage under the proposed Buyer Title Policy approved by Buyer, or deemed approved by Buyer,
as provided in 3.3.3 below; (c) any lien for non -delinquent property taxes or assessments; (d) any
Laws applicable to the Property; (d) this Agreement; (e) any existing improvements on the
Property; (f) any Approval; (g) any other document or encumbrance expressly required or
allowed to be recorded against the Property pursuant to the terms of this Agreement; and (h) all
covenants, conditions, restrictions, reservations, rights, rights of way, easements,
encumbrances, liens and other matters of record or that would be disclosed by an accurate
inspection or survey of the Property.
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1.1.55 Person. Any association, corporation, governmental entity or agency,
individual, joint venture, joint-stock company, limited liability company, partnership, trust,
unincorporated organization or other entity of any kind.
1.1.56 Preliminary Report. A preliminary report issued by the Title Company
in contemplation of the issuance of the Buyer Title Policy, accompanied by the best available
copies of all documents listed in the preliminary report as exceptions to coverage under the proposed
Buyer Title Policy.
1.1.57 Project. A seventy-two (72) unit multifamily residential condominium project to
be developed and constructed on the Property which shall include the development, construction and
installation of all landscaping, parking, and all other required on- and off -site private and public improvements
associated with the Project.
1.1.58 Property. That certain real property specifically described in Exhibit
"A" attached to this Agreement and incorporated herein by this reference.
1.1.59 Purchase Price. Eight Hundred Seventy Thousand and No/100 Dollars
($870,000), which is the fair market value of the Property as of February 29, 2016, pursuant to
that certain appraisal report conducted by Kent Carpenter of Hilco Valuation Services.
1.1.60 Real Estate Taxes. All general and special real estate taxes (including
taxes on fixtures and equipment, sales taxes, use taxes and the like), supplemental taxes,
possessory interest taxes, special taxes imposed pursuant to a special taxing district, assessments,
municipal water and sewer rents, rates and charges, excises, levies, license and permit fees, fmes,
penalties and other governmental charges and any interest or costs with respect thereto, general
and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or nature
whatsoever regarding the Property that may be assessed, levied, imposed upon, or become due
and payable out of or in respect of, or charged with respect to or become a lien on, the Property.
1.1.61 Seller Parties. Collectively, the Seller, the Seller's governing body, and the
Seller's elected officials, employees, agents and attorneys.
1.1.62 State. The State of California.
1.1.63 Third Person. Any Person that is not a Party, an Affiliate of a Party or
an elected official, officer, director, manager, shareholder, member, principal, partner, employee
or agent of a Party.
1.1.64 Title Company. Stewart Title of California, Inc., or such other Person
mutually agreed upon in writing by both Seller and Buyer.
1.1.65 Transfer. Regarding any property, right or obligation, any of the following,
whether by operation of Law or otherwise, whether voluntary or involuntary, and whether direct or indirect:
(a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether
direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable
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interest or estate in such property, right or obligation or any part of it (including the grant of any easement,
lien, or other encumbrance); (b) any conversion, exchange, issuance, modification, reallocation, sale, or other
transfer of any Equity Interest(s) in the owner of such property, right or obligation by the holders of such
Equity Interest(s); or (c) any transaction that is in substance equivalent to any of the foregoing. A transaction
affecting Equity Interests, as referred to in clauses (b) or (c) above of this Section, shall be deemed a Transfer
by Buyer, even though Buyer is not technically the transferor. A "Transfer" shall not, however, include any
ofthe following (provided that the other Party has received Notice of such occurrence) relating to the Property
or any Equity Interest: (i) a mere change in the form of ownership with no material change in beneficial
ownership and constitutes a tax-free transaction under Federal income tax law and the State real estate transfer
tax law; (ii) a conveyance only to member(s) of the immediate family(ies) of the transferor(s) or trusts for
their benefit; or (iii) a conveyance only to a Person that, as of the Effective Date, holds an Equity Interest in
the entity whose Equity Interest is being transferred.
1.1.66 Unavoidable Delay. A delay in either Party performing any obligation
under this Agreement arising from or on account of any cause whatsoever beyond the Party's
reasonable control, including strikes, labor troubles or other union activities, casualty, war, acts
of terrorism, riots, litigation, governmental action or inaction, regional natural disasters or
inability to obtain required materials. Unavoidable Delay shall not include delay caused by a
Party's financial condition or insolvency.
1.1.67 Usury Limit. The highest rate of interest, if any, that Law allows under
the circumstances.
2. Et'>hECTIVE DATE
This Agreement shall become effective on the date on which both of the following have occurred
("Effective Date"): (a) Seller has received three (3) counterpart originals of this Agreement signed by the
authorized representative(s) of Buyer; and (b) this Agreement has been approved by Seller's governing
body and executed by Seller's City Manager.
3. PURCHASE AND SALE OF PREMISES
3.1 Escrow. Seller shall sell and convey fee title to the Property to Buyer and Buyer
shall purchase and acquire fee title to the Property from Seller, subject to the Permitted
Exceptions and the terms and conditions of this Agreement. For the purposes of exchanging
funds and documents to complete the sale of the Property from Seller to Buyer and the purchase
of the Property by Buyer from Seller, pursuant to the terms and conditions of this Agreement,
Seller and Buyer agree to open the Escrow with the Escrow Agent. The provisions of Section
4 of this Agreement are, and shall constitute, the joint escrow instructions of the Parties to the
Escrow Agent for conducting the Escrow.
3.2 Consideration. Buyer shall purchase the Property from Seller for the Purchase
Price, subject to the terms and conditions of this Agreement. Buyer shall deposit the Purchase
Price into the Escrow, as follows:
3.2.1 Deposit. Upon the Escrow Opening Date, Buyer shall deposit the
Deposit into the Escrow. The Deposit shall initially be refundable until the due diligence
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condition of Section 3.3 is satisfied, and thereafter shall be non-refundable unless this
Agreement is thereafter terminated due to a Seller default, the failure of a Buyer's condition to
Close of Escrow, a termination of this Agreement not due to Buyer's default, or as otherwise
xpressly provided in this Agreement. The Deposit shall be held in Escrow until the Close of
Escrow and shall be applied to the Purchase Price.
3.2.2 Remaining Purchase Price. At lease one (1) Business Day before the
Escrow Closing Date, Buyer shall deposit into the Escrow the amount of the Purchase Price
less the amount of the Deposit.
3.2.3 Independent Consideration. Notwithstanding any other provision of
this Agreement to the contrary, the sum of One Hundred and No/100 Dollars ($100.00)
out of the Deposit shall be paid by Escrow to Seller immediately following Escrow's receipt
of the Deposit as "Independent Consideration" for the execution of this Agreement and the
rights of Buyer granted herein, which said Independent Consideration shall be paid to Seller in
all instances, upon execution hereof is fully earned, shall be applied against the Purchase Price
and is not refundable for any reason, notwithstanding anything herein to the contrary. All
references to Deposit herein shall mean the Deposit, less the Independent Consideration.
3.3 Due Diligence.
3.3.1 To the extent in Seller's possession, immediately following the
Effective Date Seller shall deliver to Buyer, without any representation or warranty by Seller,
the Due Diligence Materials (except for the Preliminary Report, which shall be provided by
the Title Company).
3.3.2 Prior to the expiration of the Due Diligence Period, Buyer shall have the
right to review and approve or disapprove, in its discretion, at Buyer's sole cost and expense,
any environmental reports, soils inspection, conditions of title, zoning, surveys, the Due
Diligence Materials, and all other reports as Buyer may deem necessary or appropriate in
connection with this Agreement. In the event Buyer finds the Property unsatisfactory for any
reason, then prior to the expiration of the Due Diligence Period Buyer shall have the right to,
by a writing delivered to Seller and Escrow Agent, terminate this Agreement and the Escrow
created pursuant thereto, in which event Buyer shall be entitled to the return of all monies
previously deposited with Escrow Agent or released to Seller pursuant to this Agreement, and
the Escrow and the rights and obligations of the Parties hereunder shall thereafter terminate
and Buyer and Seller shall have no obligation to each other (except as otherwise set forth
herein).
3.3.3 If, prior to the expiration of the Due Diligence Period, Buyer
disapproves by a writing delivered to Seller any matters of title shown in the Preliminary
Report, then Seller may, within fourteen (14) business days after its receipt of Buyer's notice
of disapproval, elect in writing to eliminate or ameliorate to Buyer's satisfaction the
disapproved title matters. Failure of Buyer to give disapproval of any matters of title shown in
the Preliminary Report on or before the expiration of the Due Diligence Period shall be deemed
to constitute Buyer's approval of all matters of title in the Preliminary Report. If Seller does
not elect to eliminate or ameliorate to Buyer's satisfaction any disapproved matters of title
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shown in the Preliminary Report, then Buyer shall have the right to, by a writing delivered to
Seller and Escrow Agent: (a) waive its prior disapproval, in which event the disapproved
matters shall be deemed approved; or (ii) terminate this Agreement and the Escrow created
pursuant thereto, in which event Buyer shall be entitled to the return of all monies previously
deposited with Escrow Agent or released to Seller pursuant to this Agreement, and the Escrow
and the rights and obligations of the Parties hereunder shall thereafter terminate and Buyer and
Seller shall have no obligation to each other (except as otherwise set forth herein).
3.3.4 Upon the Effective Date of this Agreement until the expiration of the
Due Diligence Period, subject to the provisions of this Section, Buyer may enter upon the
Property to conduct any investigation, test, study or analysis related to the development of the
Project. Buyer shall pay all costs with respect to such studies and tests and shall be solely
responsible for the disposal of any soil samples (including any Hazardous Substance or other
wastes in these samples), which obligation shall survive the termination of this Agreement.
Buyer shall exercise due care, follow best commercial practices in connection with such entry
and testing, and shall comply with all laws, ordinances, rules, regulations, orders and the like
in connection with any entry onto or testing of the Property. Prior to any entry onto the
Property, Buyer shall obtain and maintain, and shall require that its agents, consultants,
contractors and representatives (collectively, the "Agents") to obtain and maintain in full force
during the term of this Agreement, at Buyer's sole cost and expense, a policy of comprehensive
liability insurance including property damage, with limits of at least $2M per occurrence/$4M
aggregate, which will insure The City of National City, its elected officials, officers, agents
and employees against liability for injury to persons, damage to property, and death of any
person arising in connection with Buyer or its Agents entry upon the Property and/or
conducting of tests or studies thereon. Prior to any entry onto the Property, the policy shall be
approved in writing as to form and insurance (including approval of the insurance company)
by the City. Buyer shall provide City with a copy of any insurance policy required hereunder,
including an endorsement that states that the policy will not be cancelled except after thirty
(30) days' notice in writing to City and names the additional insureds as required herein. Buyer
shall provide City with evidence of such insurance coverage prior to any entry onto the
Property by Buyer or its Agents. Prior to each and every entry onto the Property, Buyer shall
provide City with not less than 48 hours prior written notice of Buyer or its Agents intended
entry upon the Property and/or conducting of tests or studies thereon. Following any such
tests or studies, Buyer shall leave the Property in substantially similar condition as of the
Effective Date of this Agreement, and Buyer shall indemnify, defend and hold harmless City
and its officers, members, employees and agents and the Property from and against any
liabilities, claims, damages (including injury or damage to person or property), losses, costs,
expenses and fees (including reasonable attorneys' and experts' fees and costs) relating to or
resulting from the entry, inspections and studies conducted by Buyer and its Agents on, under,
or about the Property. The foregoing indemnity shall survive beyond the Closing, or, if the
sale is not consummated, beyond the termination of this Agreement.
3.3.5 If, prior to the expiration of the Due Diligence Period, Buyer
disapproves of the condition of the Property, then Buyer shall have the right to, by a writing
delivered to Seller and Escrow Agent, terminate this Agreement and the Escrow created
pursuant thereto, in which event Buyer shall be entitled to the return of all monies previously
deposited with Escrow Agent or released to Seller pursuant to this Agreement, and the Escrow
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and the rights and obligations of the Parties hereunder shall thereafter terminate and Buyer and
Seller shall have no obligation to each other (except as otherwise set forth herein).
3.3.6 In the event of a termination of this Agreement pursuant to this Section,
notwithstanding any other provision of this Agreement to the contrary, Buyer shall pay all
escrow fees and costs.
3.4 "AS -IS" Acquisition. The Close of Escrow shall evidence Buyer's
unconditional and irrevocable acceptance of the Property in the Property's AS IS, WHERE IS,
SUBJECT TO ALL FAULTS CONDITION, AS OF THE CLOSE OF ESCROW, WITHOUT
WARRANTY as to character, quality, performance, condition, title, physical condition, soil
conditions, the presence or absence of fill, shoring or bluff stability or support, subsurface or
lateral support, zoning, land use restrictions, the availability or location of utilities or services,
the location of any public infrastructure on or off of the Property (active, inactive or
abandoned), the suitability of the Property or the existence or absence of Hazardous Substances
affecting the Property and with full knowledge of the physical condition of the Property, the
nature of Seller's interest in and use of the Property, all laws applicable to the Property and
any and all conditions, covenants, restrictions, encumbrances and all matters of record relating
to the Property. The Close of Escrow shall further constitute Buyer's representation and
warranty to Seller that: (a) Buyer has had ample opportunity to inspect and evaluate the
Property and the feasibility of the uses and activities Buyer is entitled to conduct on the
Property; (b) Buyer is relying entirely on Buyer's experience, expertise and Buyer's own
inspection of the Property in the Property's current state in proceeding with acquisition of the
Property; (c) Buyer accepts the Property in the Property's present condition; (d) to the extent
that Buyer's own expertise with respect to any matter regarding the Property is insufficient to
enable Buyer to reach an informed conclusion regarding such matter, Buyer has engaged the
services of Persons qualified to advise Buyer with respect to such matters; (e) Buyer has
received assurances acceptable to Buyer by means independent of Seller or Seller's agents of
the truth of all facts material to Buyer's acquisition of the Property pursuant to this Agreement;
and (f) the Property is being acquired by Buyer as a result of Buyer's own knowledge,
inspection and investigation of the Property and not as a result of any representation made by
Seller or Seller's agents relating to the condition of the Property, unless such statement or
representation is expressly and specifically set forth in this Agreement. Seller hereby expressly and
specifically disclaims any express or implied warranties regarding the Property.
3.5 Reservations. The approval of this Agreement by Seller shall not be binding on
the City Council of the City or any commission, committee, board or body of the City regarding
any other Approvals required by such bodies. No action by Seller with reference to this
Agreement or any related documents shall be deemed to constitute issuance or waiver of any
required Approvals regarding the Property or Buyer.
3.6 Non -Discrimination.
3.6.1 Buyer herein covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
be no discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those
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bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall Buyer itself, or any
person claiming under or through Buyer, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the Property. The
foregoing covenants shall run with the land.
3.6.2 Buyer herein further covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
be no discrimination on the basis of race, gender, religion, national origin, ethnicity, sexual
orientation, age or disability in the solicitation, selection, hiring or treatment of any contractors
or consultants, to participate in subcontracting/subconsulting opportunities.
3.6.3 Buyer understands and agrees that violation of any Subsection of this
Section 3.6 shall be considered a material breach of this Agreement and may result in
termination, debarment or other sanctions.
3.7 Form of Nondiscrimination and Nonsegregation Clauses. All deeds, leases or
contracts made relative to the Property, improvements thereon, or any part thereof, shall
contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
3.7.1 (a) (1) In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under
or through him or her, establish or permit any practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall also apply to the above paragraph.
3.7.2 (a) (1) In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon and subject to
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the following conditions: That there shall be no discrimination against or segregation of any
person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased."
(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall apply to the above paragraph.
3.7.3 In contracts: "There shall be no discrimination against or segregation
of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the Property, nor shall the grantee or transferee itself or any person claiming
under or through him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sublessees, subtenants, or vendees of the Property."
3.8 Effect and Duration of Covenants. The covenants established in this Agreement
shall run with the land, without regard to technical classification and designation, and shall be
for the benefit and in favor of and enforceable against the original Buyer, or if the Buyer is no
longer the owner, then against its successors in interest, assigns and heirs. Unless set forth
otherwise, the covenants described in Section 3.7 shall commence upon the Close of Escrow
and shall be set forth and shall run for the time periods set forth in the applicable Grant Deed.
4. JOINT ESCROW INSTRUCTIONS
4.1 Opening of Escrow. The purchase and sale of the Property shall take place
through the Escrow to be conducted by Escrow Agent. Escrow shall be deemed opened when
a fully signed copy of this Agreement has been delivered to Escrow Agent. Escrow Agent shall
confirm the Escrow Opening Date in writing to each of the Parties, with a copy of the Escrow
Agent Consent signed by the authorized representative(s) of the Escrow Agent.
4.2 Escrow Instructions. This Section 4 constitutes the joint escrow instructions of
the Parties to Escrow Agent for conduct of the Escrow for the purchase and sale of the Property,
as contemplated by this Agreement. Buyer and Seller shall sign such further escrow instructions
consistent with the provisions of this Agreement as may be reasonably requested by Escrow
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Agent. In the event of any conflict between the provisions of this Agreement and any further
escrow instructions requested by Escrow Agent, the provisions of this Agreement shall control.
4.3 Escrow Agent Authority. Seller and Buyer authorize Escrow Agent to:
4.3.1 Charges. Pay and charge Seller and Buyer for their respective shares of
the applicable fees, taxes, charges and costs payable by either Seller or Buyer regarding the
Escrow;
4.3.2 Settlement/Closing Statements. Release each Parry's Escrow Closing
Statement to the other Party;
4.3.3 Document Recording. File any documents delivered for recording
through the Escrow with the office of the Recorder of the County for recordation in the official
records of the County, pursuant to the joint instructions of the Parties; and
4.3.4 Counterpart Documents. Utilize documents signed by Seller or Buyer
in counterparts, including attaching separate signature pages to one original of the same
document.
4.4 Buyer's Conditions Precedent to Close of Escrow. Provided that the failure of
any such condition to be satisfied is not due to a Default under this Agreement by Buyer, Buyer's
obligation to purchase the Property from Seller on the Escrow Closing Date shall be conditioned
upon the satisfaction or waiver (waivers must be in writing and signed by Buyer) of each of the
following conditions on or before the Escrow Closing Date:
4.4.1 Title Policy. Title Company has agreed to issue the Buyer Title Policy
to Buyer upon payment of Title Company's premium for such policy;
4.4.2 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.4.3 Seller Escrow Deposits. Seller deposits all of the items into Escrow
required by Section 4.7 of this Agreement;
4.4.4 Settlement/Closing Statement. Buyer reasonably approves Buyer's
Escrow Closing Statement; and
4.4.5 Seller Pre -Closing Obligations. Seller performs all of Seller's material
obligations required to be performed by Seller pursuant to this Agreement prior to the Close of
Escrow.
4.5 Seller's Conditions Precedent to Close of Escrow. Provided that the failure of any
such condition to be satisfied is not due to a Default under this Agreement by Seller, Seller's
obligation to sell the Property to Buyer on the Escrow Closing Date shall be conditioned upon
the satisfaction or waiver (waivers must be in writing and signed by Seller) of each of the
following conditions precedent on or before the Escrow Closing Date:
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4.5.1 Compensation Agreement. Approval and full execution of a
compensation agreement by each and every affected taxing entity as set forth in the LRPMP;
4.5.2 Building Permit. Buyer obtains a building permit from the City of
National City for the development of the Project;
4.5.3 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.5.4 Buyer Escrow Deposits. Buyer deposits all of the items into Escrow
required by Section 4.6 of this Agreement;
4.5.5 Settlement/Closing Statement. Seller reasonably approves Seller's
Escrow Closing Statement; and
4.5.6 Title Policy. The Company has agreed to issue the Buyer Title Policy
to Buyer upon payment of Title Company's premium for such policy;
4.5.7 Buyer Pre -Closing Obligations. Buyer performs all of Buyer's material
obligations required to be performed by Buyer pursuant to this Agreement prior to Close of
Escrow.
4.6 Buyer's Escrow Deposits. Buyer shall deposit the following items into Escrow
and, concurrently, provide a copy of each document submitted into Escrow to Seller, at least one
(1) Business Day prior to the Escrow Closing Date:
4.6.1 Closing Funds. All amounts required to be deposited into Escrow by
Buyer under the terms of this Agreement to close the Escrow;
4.6.2 Certificate of Grant Deed Acceptance. The Certificate of Acceptance
attached to the Grant Deed signed by Buyer in recordable form;
4.6.3 Escrow Closing Statement. The Buyer's Escrow Closing Statement
signed by the authorized representative(s) of Buyer; and
4.6.4 Other Reasonable Items. Any other documents or funds required to be
delivered by Buyer under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that
have not previously been delivered by Buyer.
4.7 Seller's Escrow Deposits. Seller shall deposit the following documents into
Escrow and, concurrently, provide a copy of each document deposited into Escrow to Buyer, at
least one (1) Business Day prior to the Escrow Closing Date:
4.7.1 Grant Deed. The Grant Deed signed by the authorized representative(s) of
Seller in recordable form;
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4.7.2 Escrow Closing Statement. The Seller's Escrow Closing Statement
signed by the authorized representative(s) of Seller;
4.7.3 FIRPTA Affidavit. A FIRPTA affidavit signed by the authorized
representative(s) of Seller, in the form used by the Escrow Agent;
Seller; and
4.7.4 Form 593. A Form 593 signed by the authorized representative(s) of
4.7.5 Other Reasonable Items. Any other documents or funds required to be
delivered by Seller under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that
have not been previously delivered by Seller.
4.8 Closing Procedure. When each of Buyer's Escrow deposits, as set forth in Section
4.6 of this Agreement, and each of Seller's Escrow deposits as set forth in Section 4.7 of this
Agreement, are deposited into Escrow, Escrow Agent shall request confirmation in writing from
both Buyer and Seller that each of their respective conditions precedent to the Close of Escrow,
as set forth in Sections 4.4 and 4.5, respectively, are satisfied or waived. Upon Escrow Agent's
receipt of written confirmation from both Buyer and Seller that each of their respective conditions
precedent to the Close of Escrow are satisfied or waived, Escrow Agent shall close the Escrow by
doing all of the following:
4.8.1 Recording and Distribution of Documents. Escrow Agent shall cause
the following documents to be filed with the Recorder of the County for recording in the official
records of the County regarding the Property in the following order of priority at Close of
Escrow: (a) the Grant Deed; and (b) any other documents to be recorded regarding the Property
through the Escrow upon the joint instructions of the Parties. At Close of Escrow, Escrow Agent
shall deliver conformed copies of all documents filed for recording with in the official records of
the County through the Escrow to Seller, Buyer and any other Person designated in the written joint
escrow instructions of the Parties to receive an original or conformed copy of each such document.
Each conformed copy of a document filed for recording by Escrow Agent pursuant to this
Agreement shall show all recording information. The Parties intend and agree that this Section
4.8.1 shall establish the relative priorities of the documents to be recorded in the official records
of the County through the Escrow, by providing for recordation of senior interests prior to junior
interests, in the order provided in this Section 4.8.1;
4.8.2 Funds. Distribute all funds held by the Escrow Agent pursuant to the
Escrow Closing Statements approved in writing by Seller and Buyer, respectively;
4.8.3 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States
Internal Revenue Service;
4.8.4 Form 593. File the Form 593 with the California Franchise Tax Board;
and
Palm Plaza Purchase & Sale Agreement v2
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4.8.5 Title Policy. Obtain from the Title Company and deliver to Buyer the
Buyer Title Policy issued by the Title Company, with a copy delivered to Seller.
4.9 Close of Escrow. The Close of Escrow shall occur on or before the Escrow
Closing Date. The City Manager in his or her sole and absolute discretion, acting on behalf of the
Seller, is authorized to agree to one or more extensions of the Escrow Closing Date on behalf of
Seller up to a maximum time period extension of ninety (90) days in the aggregate; provided that
there shall be no extension permitted of the June 30, 2017 outside Escrow Closing Date set forth
in Section 1.1.26. If for any reason (other than a Default or Event of Default by such Party) the
Close of Escrow has not occurred on or before the Escrow Closing Date, then any Party not then
in Default under this Agreement may cancel the Escrow and terminate this Agreement, without
liability to the other Party or any other Person for such cancellation and termination, by delivering
Notice of termination to both the other Party and Escrow Agent. Following any such Notice of
termination of this Agreement and cancellation of the Escrow, the Parties and Escrow Agent shall
proceed pursuant to Section 4.13 of this Agreement. Without limiting the right of either Party to
cancel the Escrow and terminate this Agreement pursuant to this Section 4.9, if the Escrow does
not close on or before the Escrow Closing Date and neither Party has exercised its contractual right
to cancel the Escrow and terminate this Agreement under this Section 4.9 before the first date on
which Escrow Agent Notifies both Parties that Escrow is in a position to close in accordance with
the terms and conditions of this Agreement, then the Escrow shall close as soon as reasonably
possible following the first date on which Escrow Agent Notifies both Parties that Escrow is in a
position to close in accordance with the terms and conditions of this Agreement.
4.10 Escrow Costs. Escrow Agent shall Notify Buyer and Seller of the costs to be
borne by each of them at the Close of Escrow by delivering an Escrow Closing Statement to both
Seller and Buyer at least four (4) Business Days prior to the Escrow Closing Date. Each Party
shall pay its own costs and expenses arising in connection with the Close of Escrow (including,
without limitation, its own attorneys' and advisors' fees, charges, and disbursements), except
the following costs ("Closing Costs"), which shall be allocated between the Parties as follows:
(a) Escrow Agent charges for the conduct of the Escrow shall be paid one-half
(1/2) by Seller and one-half (1/2) by Buyer;
(b) The cost of the Buyer Title Policy attributable to the standard coverage
portion shall be paid by Seller;
(c) The cost of the Buyer Title Policy attributable to the extended coverage
portion or any additional coverage and any endorsements shall be paid by Buyer;
(d) The cost of any and all State, County, or City documentary stamps or
transfer taxes regarding the conveyance of the Property through the Escrow shall be paid by
Buyer;
(e) The cost of any recording fees in connection with the recording of any
documents in the official records of the County for the Close of Escrow and any and all other
charges, fees, and taxes levied by each and every Government relative to the conveyance of the Property
through Escrow shall be paid by Buyer;
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(f) Ad valorem taxes and assessments, if any, upon the Property, prior to
the conveyance of title of the Property to Buyer shall be paid by Seller, and after the
conveyance of title of the Property to Buyer shall be paid by Buyer consistent with Section
4.11 of this Agreement; and
(g) All other closing fees and costs shall be charged to and paid by Seller
and Buyer in accordance with customary practices in the County.
4.11 Allocation of Taxes. Real Estate Taxes relating to the Property, if any, shall be
prorated between Seller and Buyer as of Midnight on the date prior to the Close of Escrow.
4.12 Escrow Cancellation Charges. If the Escrow fails to close due to Seller's Default
under this Agreement, Seller shall pay all ordinary and reasonable Escrow and title order
cancellation charges charged by Escrow Agent or Title Company, respectively. If the Escrow
fails to close due to Buyer's Default under this Agreement, Buyer shall pay all ordinary and
reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company,
respectively. Except as set forth in Section 3.3., above, if the Escrow fails to close for any reason
other than the Default of either Buyer or Seller, Buyer and Seller shall each pay one-half (1/2) of
any ordinary and reasonable Escrow and title order cancellation charges charged by Escrow
Agent or Title Company, respectively.
4.13 Escrow Cancellation. If this Agreement is terminated pursuant to a contractual
right granted to a Party in this Agreement to terminate this Agreement (other than due to an
Event of Default by the other Party), the Parties shall do all of the following:
4.13.1 Cancellation Instructions. The Parties shall, within three (3) Business Days
following Escrow Agent's written request, sign any reasonable Escrow cancellation instructions
requested by Escrow Agent;
4.13.2 Return of Funds and Documents. Within ten (10) Business Days
following receipt by the Parties of a settlement statement of Escrow and title order cancellation
charges from Escrow Agent (if any) or within twenty (20) calendar days following Notice of
termination, whichever is earlier: (a) Buyer or Escrow Agent shall return to Seller all documents
previously delivered by Seller to Buyer or Escrow Agent, respectively, regarding the Property or the
Escrow; (b) Seller or Escrow Agent shall return to Buyer all documents previously delivered by
Buyer to Seller or Escrow Agent, respectively, regarding the Property or the Escrow; (c) Escrow
Agent shall, unless otherwise expressly provided in this Agreement, return to Buyer all funds
deposited in Escrow by Buyer, less Buyer's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance with Sections 3.3 and 4.12 of this Agreement;
and (d) Escrow Agent shall, unless otherwise provided in this Agreement, return to Seller all funds
deposited in Escrow by Seller, less Seller's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance with Section 4.12 of this Agreement.
4.14 Report to IRS. After the Close of Escrow and prior to the last date on which such
report is required to be filed with the Internal Revenue Service under applicable Federal law,
if such report is required pursuant to Internal Revenue Code Section 6045(e), Escrow Agent
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shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue
Service on Form 1099-B, W-9 or such other form(s) as may be specified by the Internal
Revenue Service pursuant to Internal Revenue Code Section 6045(e). Concurrently with the
filing of such reporting form with the Internal Revenue Service, Escrow Agent shall deliver a
copy of the filed form to both Seller and Buyer.
4.15 Condemnation. If any material portion of the Property, or any interest in any
portion of the Property, is taken by condemnation prior to the Close of Escrow by any condemning
authority other than Seller, including, without limitation, the filing of any notice of intended
condemnation or proceedings in the nature of eminent domain, commenced by any governmental
authority, other than Seller, Seller shall immediately give Buyer Notice of such occurrence, and
Buyer shall have the option, exercisable within ten (10) Business Days after receipt of such Notice
from Seller, to either: (i) terminate this Agreement; or (ii) continue with this Agreement in
accordance with its terms, in which event Seller shall assign to Buyer any right of Seller to receive
any condemnation award attributable to the Property.
5. REMEDIES AND INDEMNITY
5.1 BUYER'S RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON
RECOVERY OF DAMAGES.
5.1.1 ELECTION OF REMEDIES. DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT BY SELLER UNDER THIS AGREEMENT PRIOR TO THE
CLOSING, BUYER SHALL BE LIMITED TO EITHER OF THE FOLLOWING REMEDIES:
(1) AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE OF THIS
AGREEMENT; OR (2) TERMINATION OF THIS AGREEMENT AND AN ACTION TO
RECOVER THE DEPOSIT. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO
BUYER UNDER THIS AGREEMENT FOR ANY AMOUNT EXCEEDING THE AMOUNT SET
FORTH IN THIS SECTION 5.1.1, ANY SPECULATIVE, CONSEQUENTIAL,
COLLATERAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OR FOR ANY LOSS OF
PROFITS SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED BY BUYER.
5.1.2 WAIVER OF RIGHTS. SELLER AND BUYER EACH
ACKNOWLEDGE AND AGREE THAT SELLER WOULD NOT HAVE ENTERED INTO
THIS AGREEMENT IF SELLER WERE TO BE LIABLE TO BUYER FOR ANY
MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT UNDER THIS AGREEMENT BY SELLER,
OTHER THAN SPECIFIC PERFORMANCE OF THIS AGREEMENT OR TERMINATION
OF THIS AGREEMENT AND PAYMENT OF THE AMOUNT SPECIFIED IN CLAUSE "(2)"
OF SECTION 5.1.1 OF THIS AGREEMENT. ACCORDINGLY, SELLER AND BUYER
AGREE THAT THE REMEDIES SPECIFICALLY PROVIDED FOR IN SECTION 5.1.1 OF
THIS AGREEMENT ARE REASONABLE AND SHALL BE BUYER'S SOLE AND
EXCLUSIVE RIGHTS AND REMEDIES DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT UNDER THIS AGREEMENT BY SELLER. BUYER WAIVES ANY RIGHT TO
PURSUE ANY REMEDY OR DAMAGES AGAINST SELLER ARISING FROM OR
RELATING TO THIS AGREEMENT OTHER THAN THOSE SPECIFICALLY PROVIDED
IN SECTION 5.1.1 OF THIS AGREEMENT.
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5.1.3 CALIFORNIA CIVIL CODE SECTION 1542 WAIVER BUYER
ACKNOWLEDGES THE PROTECTIONS OF CALIFORNIA CIVIL CODE SECTION 1542
REGARDING THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 5.1,
WHICH CIVIL CODE SECTION READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
5.1.4 ACKNOWLEDGMENT. BY INITIALING BELOW, BUYER
KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS
(WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT SOLELY REGARDING THE
WAIVERS AND RELEASES CONTA ED IN THIS SECTION
zed
Buyer re -ntative(s)
5.1.5 STATEMENT OF INTENT. CALIFORNIA CIVIL CODE SECTION 1542
NOTWITHSTANDING, IT IS THE INTENTION OF BUYER TO BE BOUND BY THE
LIMITATIONS ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 5.1, AND
BUYER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST SELLER FOR
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE
RELIEF RELATED TO ANY EVENT OF DEFAULT UNDER THIS AGREEMENT BY
SELLER, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.1, WHETHER OR
NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO BUYER AS
OF THE EFFECTIVE DATE OF THIS AGREEMENT.
5.2 LIQUIDATED DAMAGES TO SELLER. IF THE CLOSE OF ESCROW DOES NOT
OCCUR ON OR BEFORE THE ESCROW CLOSING DATE DUE TO BUYER'S DEFAULT,
THEN SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE
AMOUNT OF THE DEPOSIT IS THE REASONABLE ESTIMATE BY THE PARTIES OF
THE DAMAGES SELLER WOULD SUFFER FROM SUCH DEFAULT, IT BEING AGREED
THAT IT IS EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE AND IMPRACTICABLE, TO
FIX THE EXACT AMOUNT OF DAMAGE THAT WOULD BE INCURRED BY SELLER
AS A RESULT OF SUCH DEFAULT BY BUYER. UPON SUCH A DEFAULT BY BUYER,
ESCROW SHALL BE CANCELED AND THE PARTIES SHALL PROCEED IN
ACCORDANCE WITH SECTION 4.12 OF THIS AGREEMENT. IN ADDITION, IF ALL OR
ANY PORTION OF THE DEPOSIT HAS BEEN DEPOSITED INTO ESCROW BY BUYER,
ESCROW AGENT IS HEREBY IRREVOCABLY INSTRUCTED BY BUYER AND SELLER TO
DISBURSE THE DEPOSIT TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S
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DEFAULT UNDER THIS AGREEMENT AND FAILURE TO COMPLETE THE
PURCHASE OF THE PREMISES, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS
1671, ET. SEQ.
5.3 Legal Actions. Either Party may institute legal action, at law or in equity, to
enforce or interpret the rights or obligations of the Parties under this Agreement or recover
damages, subject to the provisions of Section 5.1 or Section 5.2 of this Agreement, as applicable.
5.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and
the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by such Party, at the same or different times, of any other rights or remedies for the
same Default or the same rights or remedies for any other Default by the other Party.
5.5 Indemnification.
5.5.1 Buyer Indemnification. Buyer shall Indemnify the Seller Parties against
any Claim related to this Agreement to the extent such Claim arises from: (a) any act, omission or
negligence of the Buyer; (b) any agreements that Buyer (or anyone claiming by or through Buyer)
makes with a Third Person regarding the property; (c) any worker's compensation claim or
determination relating to any employee of Buyer or its contractors; or (d) any Environmental Claim
attributable to any action or omission of Buyer.
5.5.2 Independent of Insurance Obligations. Buyer's indemnification
obligations under this Agreement shall not be construed or interpreted as in any way restricting,
limiting, or modifying Buyer's insurance or other obligations under this Agreement. Buyer's
obligation to Indemnify the Seller Parties under this Agreement is independent of Buyer's
insurance and other obligations under this Agreement. Buyer's compliance with Buyer's insurance
obligations and other obligations under this Agreement shall not in any way restrict, limit or modify
Buyer's indemnification obligations under this Agreement and are independent of Buyer's
indemnification and other obligations under this Agreement.
5.5.3 Survival of Indemnification and Defense Obligations. The indemnity
and defense obligations of the Buyer under this Agreement shall survive the expiration or earlier
termination of this Agreement.
5.5.4 Indemnification Procedures. Wherever this Agreement requires any
Indemnitor to Indemnify any Indemnitee:
(a) Prompt Notice. The Indemnitee shall promptly Notify the
Indemnitor of any Claim.
(b) Selection of Counsel. The Indemnitor shall select counsel reasonably
acceptable to Indemnitee. If the Indenmitee, in good faith, determines that its interests are not
adequately protected by being provided a defense by the Indemnitor, the Indemnitee (and the
other Indemnified parties) may, at its election, conduct the defense or participate in the defense
of any Claim related in any way to this indemnification. If the Indemnitee, on behalf of the
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Palm Plaza Purchase & Sale Agreement v2
Indemnified parties, makes the foregoing election to conduct its own defense or obtain
independent legal counsel in defense of any Claim related to this indemnification, then the
Indemnitor shall pay all of the Legal Costs related thereto, including, without limitation,
reasonable attorneys' fees and costs.
(c) Cooperation. The Indemnitee shall reasonably cooperate with
the Indemnitor's defense of the Indemnitee.
(d) Settlement. The Indemnitor may only settle a Claim with the
consent of the Indemnitee. Any settlement shall procure a complete release of the Indemnitee
from the subject Claims, shall not require the Indemnitee to make any payment to the claimant
and shall provide that neither the Indemnitee, nor the Indemnitor on behalf of the Indemnitee,
admits any liability.
6. GENERAL PROVISIONS
6.1 Incorporation of Recitals. The Recitals of fact set forth preceding this
Agreement are true and correct and are incorporated into this Agreement in their entirety by
this reference.
6.2 Notices, Demands and Communications Between the Parties.
6.2.1 Delivery. Any and all Notices submitted by any Party to another Party
pursuant to or as required by this Agreement shall be proper, if in writing and sent by messenger
for immediate personal delivery, nationally recognized overnight (one Business Day) delivery
service (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United States
mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated
below in Section 6.2.2. Notice may be sent in the same manner to such other addresses as either
Party may from time to time designate by Notice in accordance with this Section 6.2. Notice shall be
deemed received by the addressee, regardless of whether or when any return receipt is received by
the sender or the date set forth on such return receipt, on the day that the Notice is sent by messenger
for immediate personal delivery, one Business Day after delivery to a nationally recognized
overnight delivery service or three (3) calendar days after the Notice is placed in the United
States mail in accordance with this Section 6.2. Any attorney representing a Party may give any
Notice on behalf of such Party.
6.2.2 Addresses. The Notice addresses for the Parties, as of the Effective Date
of this Agreement, are as follows:
To Buyer:
To Seller:
Palm Plaza Associates, LLC
Attn: Jim Reynolds
4980 North Harbor Drive, Suite 203
San Diego, California 92106
City of National City
1243 National City Boulevard
National City, California 91950
Palm Plaza Purchase & Sale Agreement v2
Page 24 of 30
Attention: City Manager
With a Copy to: Claudia Silva, City Attorney
City of National City
1243 National City Boulevard
National City, California 91950
6.3 Relationship of Parties. The Parties each intend and agree that Seller and Buyer
are independent contracting entities and do not intend by this Agreement to create any
partnership, joint venture or similar business arrangement, relationship or association between
them.
6.4 Warranty Against Payment of Consideration for Agreement. Buyer represents
and warrants to Seller that: (a) Buyer has not employed or retained any Person to solicit or
secure this Agreement upon an agreement or understanding for a commission, percentage,
brokerage or contingent fee, excepting bona fide employees of Buyer and Third Persons to
whom fees are paid for professional services related to the documentation of this Agreement;
and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given
by Buyer or any of Buyer's agents, employees or representatives to any elected or appointed
official or employee of the Seller in an attempt to secure this Agreement or favorable terms or
conditions for this Agreement. Breach of the representations or warranties of this Section 6.4
shall entitle Seller to terminate this Agreement and cancel the Escrow (if open) upon seven (7)
calendar days Notice to Buyer and, if the Escrow is open, to Escrow Agent. Upon any such
termination of this Agreement, Buyer shall immediately refund any payments made to or on
behalf of Buyer to Seller pursuant to this Agreement or otherwise related to the Property, any
Approval or any CEQA Document, prior to the date of such termination.
6.5 Calculation of Time Periods. Unless otherwise specified, all references to time
periods in this Agreement measured in days shall be to consecutive calendar days, all references
to time periods in this Agreement measured in months shall be to consecutive calendar months
and all references to time periods in this Agreement measured in years shall be to consecutive
calendar years. Any reference to Business Days in this Agreement shall mean consecutive
Business Days.
6.6 Principles of Interpretation. No inference in favor of or against any Party shall
be drawn from the fact that such Party has drafted any part of this Agreement. The Parties
have both participated substantially in the negotiation, drafting and revision of this Agreement,
with advice from legal or other counsel and advisers of their own selection. A word, term or
phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all
in accordance with ordinary principles of English grammar, which shall govern all language
in this Agreement. The words "include" and "including" in this Agreement shall be construed
to be followed by the words "without limitation". Each collective noun in this Agreement shall
be interpreted as if followed by the words "(or any part of it)", except where the context clearly
requires otherwise. Every reference to any document, including this Agreement, refers to such
document, as modified from time to time (excepting any modification that violates this
Agreement), and includes all exhibits, schedules, addenda and riders to such document. Every
reference to a law, statute, regulation, order, form or similar governmental requirement refers
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Palm Plaza Purchase & Sale Agreement v2
to each such requirement as amended, modified, renumbered, superseded or succeeded, from
time to time.
6.7 Governing Law. The procedural and substantive laws of the State shall govern
the interpretation and enforcement of this Agreement, without application of conflicts or choice of
laws principles or statutes. The Parties acknowledge and agree that this Agreement is entered
into, is to be fully performed in and relates to real property located in the County of San Diego,
State of California. All legal actions arising from this Agreement shall be filed in the Superior
Court of the State in and for the County or in the United States District Court with jurisdiction in
the County.
6.8 Unavoidable Delay; Extension of Time of Performance.
6.8.1 Notice. Subject to any specific provisions of this Agreement stating that
they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of an
Unavoidable Delay, performance by either Party under this Agreement shall not be deemed or
considered to be in Default, where any such Default is due to the occurrence of an Unavoidable
Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (a) within three
(3) calendar days after such Party knows of any such Unavoidable Delay; and (b) within three
(3) calendar days after such Unavoidable Delay ceases to exist. To be effective, any Notice of
an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The Party
claiming an extension of time to perform due to an Unavoidable Delay shall exercise
commercially reasonable efforts to cure the condition causing the Unavoidable Delay, within
a reasonable time. The extension of time for performance under this Agreement resulting from
the occurrence of an Unavoidable Delay shall commence on the date of occurrence of the
condition causing the Unavoidable Delay and shall, except for a legal action described in
Section 6.12 of this Agreement, in no event be longer than ninety (90) calendar days after
written Notice is received by a Party from the other Party of the occurrence of such an
Unavoidable Delay.
6.8.2 Assumption of Economic Risks. EACH PARTY EXPRESSLY
AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER
PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN
MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC
ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR
ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY
THE PERFORMANCE OF EACH AND EVERY ONE OF EACH PARTY'S
OBLIGATIONS AND COVENANTS ARISING UNDER THIS AGREEMENT.
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE
PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN
ECONOMIC CIRCUMSTANCES OR MARKET DEMAND OR CONDITIONS AND
WANE, TO THE GREATEST EXTENT ALLOWED BY LAW, ANY DEFENSE, CLAIM,
OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY,
IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION
OF PURPOSE, OR SIMILAR THEORIES. THE PARTIES AGREE THAT ADVERSE
CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY
OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR
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DEMANDS, SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT
OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS,
CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES
EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET
CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE FECTI . DAT
Initials of Authorized Initia s of
Seller Representative(s)
6.9 Tax Consequences. Buyer acknowledges and agrees that Buyer shall bear any
and all responsibility, liability, costs or expenses connected in any way with any tax
consequences experienced by Buyer related to this Agreement.
6.10 Real Estate Commissions.
6.10.1 Seller Warranty. Seller: (a) represents and warrants that Seller did not
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Seller; and (b) shall Indemnify Buyer against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.1.
6.10.2 Buyer Warranty. Buyer: (a) represents and warrants that Buyer did not
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Buyer; and (b) shall Indemnify Seller against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.2.
6.11 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied,
is intended to confer any rights or remedies under or by reason of this Agreement on any Person
other than the Parties and their respective permitted successors and assigns, nor is anything in
this Agreement intended to relieve or discharge any obligation of any Third Person to any Party
or give any Third Person any right of subrogation or action over or against any Party.
6.12 Buyer Assumption of Risks of Legal Challenges. Buyer assumes the risk of
delays or damages that may result to Buyer from each and every Third Person legal action
related to Seller's approval of this Agreement or any associated Approvals, even in the event
that an error, omission or abuse of discretion by Seller is determined to have occurred. If a
Third Person files a legal action regarding Seller's approval of this Agreement or any
associated Approvals (exclusive of legal actions alleging violation of Government Code
Section 1090 by officials of Seller), Buyer shall have the option to either: (a) cancel the Escrow
and terminate this Agreement, in which case the Parties and the Escrow Agent shall proceed
in accordance with Section 4.13 of this Agreement; or (b) Indemnify Seller against such Third
Person legal action, including all Legal Costs, monetary awards, sanctions and the expenses of
any and all financial or performance obligations resulting from the disposition of the legal
action; provided, however, that option "(a)" under this Section 6.12 shall only be available to
Buyer prior to the Close of Escrow. Should Buyer fail to Notify Seller of Buyer's election
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pursuant to this Section 6.12 at least fifteen (15) calendar days before response to the legal
action is required by Seller, prior to the Close of Escrow, Buyer shall be deemed to have elected
to cancel the Escrow and terminate this Agreement pursuant to this Section 6.12 and, following
the Close of Escrow, Buyer shall be deemed to have elected to Indemnify Seller against such
Third Person legal action pursuant to this Section 6.12, all without further Notice to or action
by either Party. Seller shall reasonably cooperate with Buyer in defense of Seller in any legal
action subject to this Section 6.12, subject to Buyer completely performing Buyer's indemnity
obligations for such legal action. Should Buyer elect or be deemed to elect to Indemnify Seller
regarding a legal action subject to this Section 6.12, but fail to or stop providing such
indemnification of Seller, then Seller shall have the right to terminate this Agreement or cancel
the Escrow (or both) by Notice to Buyer and, if the Escrow is open, to the Escrow Agent.
Nothing contained in this Section 6.12 is intended to be nor shall be deemed or construed to
be an express or implied admission that Seller may be liable to Buyer or any Person for
damages or other relief regarding an alleged or established failure of Seller to comply with the
law. Any legal action that is subject to this Section 6.12 (including any appeal periods and the
pendency of any appeals) shall constitute an Unavoidable Delay and the time periods for
performance by either Party under this Agreement may be extended pursuant to the provisions
of this Agreement regarding Unavoidable Delay.
6.13 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
6.14 Time Declared to be of the Essence. As to the performance of any obligation
under this Agreement of which time is a component, the performance of such obligation within
the time specified is of the essence.
6.15 Entire Agreement. This Agreement integrates all of the terms and conditions
mentioned in this Agreement or incidental to this Agreement, and supersedes all prior or
contemporaneous negotiations or previous agreements between the Parties, whether written or
oral, with respect to all or any portion of the Property.
6.16 Waivers and Amendments. All waivers of the provisions of this Agreement
must be in writing and signed by the authorized representative(s) of the Party making the
waiver. All amendments to this Agreement must be in writing and signed by the authorized
representative(s) of both Seller and Buyer.
6.17 No Implied Waiver. Failure to insist on any one occasion upon strict compliance
with any term, covenant, condition, restriction or agreement contained in this Agreement shall
not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall
any waiver or relinquishment of any rights or powers under this Agreement, at any one time
or more times, be deemed a waiver or relinquishment of such right or power at any other time
or times.
6.18 City Manager Implementation. Seller shall implement this Agreement through
the City Manager, acting on behalf of the Seller. The City Manager or his/her designee is
hereby authorized by Seller to enter into agreements and sign documents referenced in this
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Palm Plaza Purchase & Sale Agreement v2
Agreement or reasonably required to implement this Agreement on behalf of Seller, to issue
approvals, interpretations or waivers, and to enter into certain amendments to this Agreement
on behalf of Seller, to the extent that any such action(s) does/do not increase the monetary
obligations of Seller. All other actions shall require the consideration and approval of the
Seller's governing body, unless expressly provided otherwise by action of the Seller's
governing body. Nothing in this Section 6.18 shall restrict the submission to the Seller's
governing body of any matter within the City Manager's authority under this Section 6.18, in
the City Manager's sole and absolute discretion, to obtain the Seller's governing body's
express and specific authorization on such matter. The specific intent of this Section 6.18 is
to authorize certain actions on behalf of Seller by the City Manager, but not to require that such
actions be taken by the City Manager including, without limitation, any extension(s) granted
pursuant to Section 4.9 of this Agreement, without consideration by Seller's governing body.
6.19 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
completely resolved between the Parties, either by written settlement, entry of a non -appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions of
this Agreement relating to dispute resolution, indemnity or limitations on damages or remedies
shall survive any expiration or termination of this Agreement.
6.20 Counterparts. This Agreement shall be signed in three (3) triplicate originals,
each of which is deemed to be an original.
6.21 Facsimile or Electronic Signatures. Signatures delivered by facsimile or
electronic mail shall be binding as originals upon the Party so signing and delivering; provided,
however, that original signature(s) of each Party shall be required for each document to be
recorded.
[Signatures on following page/
SIGNATURE PAGE
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
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Palm Plaza Purchase & Sale Agreement v2
IN WITNESS WHEREOF, the Parties have signed and entered into this Agreement by and
through the signatures of their respective authorized representative(s) as follows:
"SELLER" "BUYER"
CITY OF NATIONAL CITY, a California PALM PLAZA ASSOCIATES, LLC, a
municipal corporation California limited liability company
*see notes below
By: ���-
Name: Leslie Deese
Title: City Manager
ATTEST:
By:
1
Name: -Michael R. Dalla
Title: City Clerk
APPROVED AS TO FORM: *Notes: This document must be executed by the
Corporation's Chief Executive Officer,
President or Vice -President, on the one hand,
By: ti and the Corporations' Chief Financial Officer,
Name: Claudi Ga 'tua S lv Treasurer, Assistant Treasurer or Secretary on
Title: City Atto the other hand.
KANE, BALLMER & BERKMAN
By:
Name: .j+J M . 6.1 LL.
Title: NtiArNtar&1 iJ G— etto,vt
By:
Name:
Title: Special Counsel
By:
Name: -
Title: 4
Palm Plaza Purchase & Sale Agreement v2
Page 30 of 30
KANE, BALLMER & BERKMAN
By:
Name:~us
Title: Special Counsel
Page 3 I of 30
Palm Plata Purchase dt Sale A{ecmcnt v2
EXHIBIT "A"
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Property Legal Description
The land referred to herein is situated in the State of California, County of San Diego and
described as follows:
Parcel 1 of Parcel Map No. 13257 in the City of National City, filed in the Office of the
County Recorder of San Diego County, May 8, 1894 as File No. 84-170925 of Official
Records.
APN: 557-410-20
EXHIBIT A
EXHIBIT "B"
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Grant Deed
[behind this page]
EXHIBIT B
RESOLUTION NO. 2016 — 120
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
ACCEPTING THE FINDINGS MADE IN THE SUMMARY REPORT PURSUANT
TO CALIFORNIA GENERAL CODE SECTION 52201 PERTAINING TO THE SALE OF A
1.07-ACRE PARCEL OF VACANT LAND LOCATED AT 1640 EAST PLAZA BOULEVARD
IN NATIONAL CITY TO PALM PLAZA ASSOCIATES, LLC, AND APPROVING
A REAL PROPERTY PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS FOR SAID VACANT LAND
WHEREAS, the Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property generally
located at 1640 East Plaza Blvd. (Assessor's Parcel No. 557-410-20) within the City of National
City, County of San Diego, State of California ("Property"); and
WHEREAS, pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and pursuant
to California Health and Safety Code Section 34173, the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency ("Successor Agency")
became the successor agency and successor -in -interest to the Redevelopment Agency,
confirmed by Resolution No. 2012-15 adopted on January 10, 2012, by the City Council of the
City of National City ("City"); and
WHEREAS, in accordance with California Health and Safety Code Section
34191.5, the Property was listed on Successor Agency's Revised Long Range Property
Management Plan ("Revised LRPMP"), which provides that the Property is to be sold at fair
market value, and the Revised LRPMP has been approved by the Oversight Board of the
Successor Agency ("Oversight Board") and the California Department of Finance ("DOF"); and
WHEREAS, at its regular meeting on May 17, 2016, the City of National City met and
pursuant to Resolution No. 2016-70 accepted the transfer of the Property, among other properties, from
the Successor Agency to the City in accordance with the LRPMP; and
WHEREAS, at its regular meeting on May 17, 2016, the Successor Agency met and
pursuant to Resolution No. 2016-77 approved the transfer of the Property, among other properties, from
the Successor Agency to the City in accordance with the Revised LRPMP; and
WHEREAS, in accordance with the DOF-approved Revised LRPMP, the net
proceeds from the sale of the Property pursuant to the proposed Agreement will be distributed
as property tax to each taxing entity in an amount proportionate to its share of property tax
revenues; and
WHEREAS, Palm Plaza Associates, LLC ("Buyer") has made an offer to
purchase the Property from City at the Property's current "as is" fair market value of $870,000,
and Successor Agency desires to sell the Property to Buyer pursuant to the terms and
conditions of a proposed Real Property Purchase and Sale Agreement and Joint Escrow
Instructions ("Agreement"). A copy of the proposed Agreement has been provided to the City;
and
WHEREAS, at its regular meeting on August 16, 2016, the City met and held a
public hearing in accordance with Section 52201 of the California Government Code to discuss
Resolution No. 2016 — 120
Page Two
August 16, 2016
and consider the findings of a Summary Report and to also consider approving the Agreement
and the sale of the Property as provided in the Agreement; and
WHEREAS, a public notice was published in a newspaper of general circulation
on August 1, 2016 and August 8, 2016 providing notification of the public hearing of the City on
August 16, 2016 in compliance with the requirements of Section 52201 of the California
Government Code; and
WHEREAS, approval of the property transfer is not a "Project" under section
15378 of the California Environmental Quality Act ("CEQA") guidelines because the proposed
action consists of administrative activity that will not result in direct or indirect physical changes
to the environment and, as such, pursuant to section 15061(b)(5) of the CEQA Guidelines is not
subject to CEQA; and, the underlying project is exempt from CEQA for two reasons: 1) it
requires only ministerial approval by the City (Public Resources Code section 21080(b)(1) and
Guidelines 15268), and 2) it is an urban infill project (Guidelines section 15332).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City
as follows:
SECTION 1. The Recitals set forth above are true and correct and are incorporated
into this Resolution by reference.
SECTION 2. The City finds, based on facts contained in the Summary Report prepared
pursuant to Section 52201 of the California Government Code, the property will assist in the
creation of economic opportunity and that consideration for the Property is not less than fair
market value at its highest and best use; and the City accepts the findings of the Summary
Report.
SECTION 3. The City hereby approves of the terms of the Agreement.
SECTION 4. The City hereby approves of, and directs the sale and conveyance of the
Property from the City to the Buyer in accordance with the terms and conditions set forth in the
Agreement.
SECTION 5. The City hereby approves the Agreement and authorizes the Mayor to
execute the Agreement; and delegates to the City Manager or her designee authority to execute
any other documents necessary to carry out the sale of the Property, and to take all actions and
sign any and all documents necessary to implement and effectuate the Agreement and the
actions approved by this Resolution as determined necessary by the City Manager, or her
designee, to execute all documents on behalf of the City (including, without limitation, a grant
deed), and to administer the City's obligations, responsibilities and duties to be performed
pursuant to this Resolution and the Agreement.
SECTION 6. If any provision of this Resolution or the application of any such provision
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications of this Resolution that can be given effect without the invalid provision or
Resolution No. 2016 — 120
Page Three
August 16, 2016
application, and to this end, the provisions of this Resolution are severable. The City declares
that it would have adopted this Resolution irrespective of the invalidity of any particular portion
of this Resolution.
PASSED and ADOPTED this 16th day of August, 20
ATTEST:
Michael R. Dalla, ity Clerk
AP"OVED AS TO FORM:
C'-' . is Ga
City Attorn
Morrison, Mayor
Passed and adopted by the Council of the City of National City, California, on August
16, 2016 by the following vote, to -wit:
Ayes: Councilmembers Cano, Morrison, Rios, Sotelo-Solis.
Nays: Councilmember Mendivil.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Mayor of the City of National City, California
Nd
City y National City, California
4_,L.ticAdi
C erk of the Cit o
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2016-120 of the City of National City, California, passed and
adopted by the Council of said City on August 16, 2016.
City Clerk of the City of National City, California
By:
Deputy
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
craoo6-acb
goo\-'-\
MEETING DATE: August 16, 2016
AGENDA ITEM NO. 17
ITEM TITLE:
Resolution of the City Council of the City of National City accepting the findings made in the Summary
Report pursuant to California General Code Section 52201 pertaining to the sale of a 1.07-acre parcel
of vacant land located at 1640 East Plaza Blvd. in National City to Palm Plaza Associates, LLC and
approving a Real Property Purchase and Sale Agreement and Joint Escrow Instructions for said
vacant land.
PREPARED BY: Carlos Aguirre, Community Dev. Mgr. DEPARTMENT:
Housing and Economic
PHONE: (619) 336-4391 APPROVE
EXPLANATION:
See Attachment No. 1
FINANCIAL STATEMENT:
ACCOUNT NO.
APPROVE;
Finance
APPROVED: MIS
Subject to the execution of a Compensation Agreement with the Affected Taxing Entities (ATEs), net
proceeds from the sale of the property will be distributed among the ATEs as required by Health and
Safety Code Section 34188. The City will receive 18% of net proceeds from the distribution.
ENVIRONMENTAL REVIEW:
Approval of the property transfer is not a "Project" under section 15378 of the California Environmental
Quality Act ("CEQA") guidelines because the proposed action consists of administrative activity that will
not result in direct or indirect physical changes to the environment and, as such, pursuant to section
15061(b)(5) of the CEQA Guidelines is not subject to CEQA; and, the underlying project is exempt from
CEQA for two reasons: 1) it requires only ministerial approval by the City (Public Resources Code
section 21080(b)(1) and Guidelines 15268), and 2) it is an urban infill project (Guidelines section
15332).
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. Background Report
2. Public Notice
3. Summary Report
4. Purchase and Sale Agreement
5. Resolution
`,J \\ou No• r o\C-\aO
Attachment No. 1
Explanation and Background Report
Public Hearing
The purpose of the public hearing is to allow the City Council and the public the
opportunity to review and comment on the essential terms of a proposed Real Property
Purchase and Sale Agreement and Escrow Instructions for the sale and conveyance of
certain real property ("Property") located in the City of National City, California, with a
street address of 1640 E. Plaza Blvd, (APN # 557-410-20), from the City of National City
to Palm Plaza Associates, LLC pursuant to a Real Property Purchase and Sale
Agreement and Joint Escrow Instructions ("Agreement"). The Agreement is included as
Attachment No. 4 of this staff report.
Section 52201 Summary Report
A Summary Report was prepared in accordance with Section 52201 of the California
Government Code in order to inform the City Council and the public about the proposed
Real Property Purchase and Sale Agreement and Joint Escrow Instructions between
the City of National City ("Seller") and Palm Plaza Associates, LLC ("Buyer"). The report
outlines the potential costs of the sale, the estimated value of the interest in the property
to be sold, and the economic opportunities resulting from the transaction. The report is
included as Attachment No. 3 of this staff report.
Property History
The Property was once the site of a 70-unit Day's Inn hotel that was built in 1986 and
closed approximately 16 years ago leaving a blighted and abandoned building. Under a
put -option agreement with the Community Development Commission of the City of
National City ("CDC"), National City Hotels acquired the Property in 2004 from Rex
Investments for $3,775,000 with the intent to develop commercial space and residential
units by gaining the appropriate entitlements with assistance from the CDC. When
National City Hotels was unable to obtain the entitlements needed and acquire the
adjacent vacant property, they exercised the put -option agreement with the CDC. The
Property was purchased by the CDC for $4,394,343 in October 2005. The sales price
was based on the value of an operable hotel and as part of the purchase, National City
Hotels demolished the building leaving the Property vacant upon purchase. The
Property was appraised by the CDC in 2006, after the demolition of the structure on the
Property. The appraisal valued the land at $2,135,000. However, later in 2006 the
appraisal was revised to reflect a value of $1,823,000 after the appraiser had the
opportunity to review preliminary title reports and a parcel map with plotted easements.
The CDC entered an Exclusive Negotiating Agreement (ENA) with the Acevedo Group
in January 2006. The ENA was assigned to Palm Plaza Associates, LLC (PPA) in June
2006. Since entering the ENA, PPA has owned a 1.144 acre parcel of land contiguous
to the Property. A Purchase and Sale Agreement between Palm Plaza Associates, LLC
and the CDC was contemplated since November 2009 for a sale amount of $1,823,000
for the purpose on developing 72 for -sale residential units. However, the quick downturn
in the economy impacted the value of the Property and feasibility of development. The
Property was reappraised in January 2011 and valued at $690,000. In the spring of
Attachment No. 1
2011, PPA and the CDC renegotiated the price and terms for the purchase and sale of
the Property reflecting the appraised value of $690,000. However, the CDC and PPA
were unable to consummate a Purchase and Sale Agreement due to the impending
dissolution of the CDC by the State of California that prohibited entering into property
disposition agreements at the time.
The Successor Agency to the Community Development Commission as the National
City Redevelopment Agency ("Successor Agency") indicated future development of the
the Property in the Revised Long Range Property Management Plan (Revised LRPMP)
The Revised LRPMP was approved in December 2015 by the State of California
Department of Finance. The Property was appraised in February 2016 for a value of
$870,000. In accordance with the Revised LRPMP, the Property was transferred to the
City for future development in May 2016 from the Successor Agency. Negotiations with
PPA continued from where they had left off in 2011 and PPA has agreed to purchase
the property at the appraised value of $870,000 for the future development of
approximately 72 multi -family housing units.
Public Notice Process
Notice of the public hearing was published in the San Diego Union Tribune on August 1,
2016 and August 8, 2016, as well as through the regular agenda notification process.
The Public Notice is included as Attachment No. 2 of this staff report.
Attachment No. 2
LEGAL NOTICE
PUBLIC MEETING
ACTIONS RELATING TO THE TRANSFER OF REAL PROPERTY IN THE CITY OF
NATIONAL CITY TO PALM PLAZA ASSOCIATES, LLC PURSUANT TO A REAL
PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
NOTICE IS HEREBY GIVEN that the CITY OF NATIONAL CITY will hold a public
meeting on Tuesday, August 16, 2016, at 6:00 p.m. or soon thereafter, at City of National City,
City Hall Council Chambers, located at 1243 National City Boulevard, National City, CA 91950.
The public meeting is being conducted in accordance with California General Code Section 52201.
The public meeting may be continued from time to time until completed. The public meeting may
also be cancelled or set for another time in the future at any time until the scheduled meeting time.
The purpose of this public meeting is to discuss and consider the following items:
• The sale and conveyance of certain real property located in the City of National City,
California, with a street address of 1640 E. Plaza Blvd, (APN # 557-410-20), from the City
of National City to Palm Plaza Associates, LLC pursuant to a Real Property Purchase and
Sale Agreement and Joint Escrow Instructions.
Any and all persons who wish to speak on any issue related to any of the item to be discussed at
the public meeting as listed above may appear at the public meeting and will be afforded an
opportunity to speak.
Further information regarding the item to be discussed at the public meeting as listed above or this
public meeting may be obtained by contacting Gregory Rose, at (619) 336-4266.
Copies of the Purchase and Sales Agreement and Economic Report are available at the office of
the City Clerk (1243 National City Boulevard, National City, CA 91950).
Attachment No. 3
NATIONAL CITY REDEVELOPMENT PROJECT
NATIONAL CITY, CALIFORNIA
SUMMARY REPORT PERTAINING TO THE PROPOSED SALE
OF CERTAIN REAL PROPERTY WITHIN THE
NATIONAL CITY REDEVELOPMENT
PROJECT AREA
California Government Code Section 52201
PURSUANT TO THE PROPOSED
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
between
THE CITY OF NATIONAL CITY
and
PALM PLAZA ASSOCIATES, LLC
National City, California
August 2016
Attachment No. 3
TABLE OF CONTENTS
Page
I. Introduction 1
II. Costs of the Agreement to the City 4
III. Estimated Value of the Interest to be Conveyed at the Highest and Best Use Permitted
Under the General Plan and Zoning Code 5
IV. Estimated Value of the Interest to be Conveyed at the Use and with the Conditions,
Covenants, and Development Costs Required by the Agreement 6
V. Compensation which the Buyer will be Required to Pay 7
VI. Explanation of the Difference, if any, between the Compensation to be Paid to the City
by the Proposed Transaction and the Fair Market Value of the Interest to be Conveyed
at the Highest and Best Use Consistent with the General Plan and Zoning Code 8
VII. Explanation of why the Sale of the Property will Contribute to Economic Opportunity 9
VIII. Limiting Conditions 10
Attachment No. 3
I. INTRODUCTION
A. Purpose of Report
This Summary Report was prepared in accordance with Section 52201 of the California
Government Code in order to inform the City of National City (Seller) and the public about the
proposed Real Property Purchase and Sale Agreement and Joint Escrow Instructions (Agreement)
between the Seller and Palm Plaza Associates, LLC (Buyer).
This Report and attached tables describe the transaction between the Seller and the Buyer. This
Report specifies:
1. The costs to be incurred by the Seller under the Agreement;
2. The estimated value of the interest to be conveyed at the highest and best use permitted under
the General Plan and Zoning Code;
3. The estimated value of the interest to be conveyed at the proposed use and with the
conditions, covenants, and development costs required by the Agreement;
4. The compensation to be paid to the Seller pursuant to the proposed transaction;
5. An explanation of the difference, if any, between the compensation to be paid to the Seller
under the proposed transaction, and the fair market value at the highest and best use
consistent with the General Plan and Zoning Code; and
6. An explanation of why the Agreement will assist in the creation of economic opportunity.
B. Summary of Findings
The Seller engaged its economic consultant, Keyser Marston Associates, Inc. (KMA), to analyze the
proposed financial terms. The principal KMA conclusions are summarized as follows:
• The estimated costs of the Agreement to the Seller total $4,350,000.
• The estimated fair market value of the Property at its highest and best use is $870,000.
Summary Report
Palm Plaza
16062ndh
16104.010.001
Keyser Marston Associates, Inc.
Page 1
Attachment No. 3
• The estimated re -use value of the interest to be conveyed is $870,000.
• The value of the compensation to be received by the Seller is $870,000.
C. Description of Property and Proposed Development
The Property is located within the former National City Redevelopment Project Area (Project Area).
Prior to the Statewide dissolution of redevelopment in 2012, the former Project Area encompassed
approximately 2,000 acres of land area. The goals of the Redevelopment Plan (Plan) were to retain
businesses and jobs in the area, create and improve public facilities in the area, and improve the
supply of affordable, quality housing. Since the adoption of the Plan, numerous redevelopment
ventures were carried out by the City's former redevelopment agency in partnership with private
developer and non-profit partners.
The Property is a 1.07-acre parcel located at 1640 East Plaza Boulevard in National City. It was
originally acquired by the Community Development Commission for redevelopment purposes.
Following the dissolution of redevelopment, the Property was transferred to the Successor Agency
to the Community Development Commission as the National City Redevelopment Agency pursuant
to Health and Safety Code Section 34172. Following State approval of the City's Long Range
Property Management Plan (LRPMP), the Property was transferred from the Successor Agency to
the City.
The Property is situated on the south side of Plaza Boulevard, east of Palm Avenue, and west of
Interstate 805. The Property has an approximate 25-foot slope within the southwest corner of the
parcel. The Buyer intends to combine the Property with a 1.14-acre Buyer -owned parcel at 1300
Palm Avenue, for a total combined development site of 2.21 acres. The Buyer plans to develop a
72-unit multi -family residential condominium development (Project) on the combined parcels.
D. Proposed Transaction Terms
This section summarizes the salient aspects of the proposed Agreement between the Seller and the
Buyer.
• The Seller will convey the Property to the Buyer for $870,000.
• The Buyer will accept the Property in an "as is" condition.
Summary Report
Palm Plaza
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16104.010.001
Keyser Marston Associates, Inc.
Page 2
Attachment No. 3
• The Buyer will construct 72 multi -family residential condominiums on the 2.21-acre site
comprised of the Property and the Buyer's adjoining parcel. The Buyer will be responsible for
the development, construction, and installation of all landscaping, parking, and all other
required on- and off -site private and public improvements associated with the Project.
Summary Report
Palm Plaza
16062ndh
16104.010.001
Keyser Marston Associates, Inc.
Page 3
Attachment No. 3
II. COSTS OF THE AGREEMENT TO THE SELLER
The estimated costs of the Agreement to the Seller total $4,350,000, and include the following
items:
Seller Costs
Amount
Property Acquisition
Third Party and Other Costs (1)
$3,775,000
$575,000
Total Seller Costs
$4,350,000
The Property acquisition cost, and other maintenance and holding costs, were incurred by the
Community Development Commission in its capacity as the City's former Redevelopment
Agency.
(1) Per Seller, includes maintenance/holding costs, appraisals, escrow costs, fees paid to the previous property owner,
franchise fees, inspection reports, other third party soft costs, and estimated budget for legal and economic consultants.
Summary Report
Palm Plaza
16062ndh
16104.010.001
Keyser Marston Associates, Inc.
Page 4
Attachment No. 3
III. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED AT THE HIGHEST AND BEST USE
PERMITTED UNDER THE GENERAL PLAN AND ZONING CODE
This section presents an analysis of the fair market value of the Property at its highest and
best use.
In appraisal terminology, the highest and best use is that use of the Property that generates
the highest property value and is physically possible, financially feasible, and legally
permitted. Therefore, value at highest and best use is based solely on the value created and
not on whether or not that use carries out the revitalization goals and policies for the City of
National City. According to the City's General Plan and Zoning Code, the Property is located
within the Major Mixed -Use District (MXD-2). This zone allows for a Floor Area Ratio (FAR) of
3.5 for mixed -uses and 3.0 for single -uses. Residential density up to 75 units per acre is also
allowed.
The Seller contracted with Hilco Real Estate Appraisal, LLC (Hilco) for an appraisal of the
Property. The appraisal estimated the current market value of the subject Property as of
January 25, 2016. Hilco concluded the fee simple market value of the Property, as vacant, to
be $870,000. This land value translates to $19 per SF of site area.
KMA conducted an independent review of residential land sales of multi -family residential
development sites in National City and surrounding communities from January 2014 to the
present. As shown in Table 1, surveyed land sales ranged from $9 to $60 per SF of land, with
median and average prices of $20 and $25 per SF, respectively. Most sales were concentrated
between $14 and $27 per SF.
The comparable sales vary by city, site condition, status of entitlements, and prevailing market
conditions at time of sale. Notably, the Property is centrally located within the South Bay, on
a major commercial artery (Plaza Boulevard), in close proximity to Interstate 805. On the
other hand, the steep sloped southwestern portion of the parcel reduces the useability of the
Property. In view of these factors, KMA finds that the value of the Property falls slightly below
the median/average prices for the surveyed comparable land sales, or say $19 per SF.
In sum, KMA concurs with the appraised value for the Property at $19 per SF of site area. On
this basis, then, the KMA analysis concludes that the fair market value of the Property at its
highest and best use is $870,000.
Summary Report
Palm Plaza
16062ndh
16104.010.001
Keyser Marston Associates, Inc.
Page 5
Attachment No. 3
IV. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED AT THE USE AND WITH THE
CONDITIONS, COVENANTS, AND DEVELOPMENT COSTS REQUIRED BY THE AGREEMENT
This section explains the principal conditions and covenants which the Buyer of the Property must
meet in order to comply with the Agreement. Re -use value is defined as the highest price in terms
of cash or its equivalent which a property or development right is expected to bring for a specified
use in a competitive open market, subject to the covenants, conditions, and restrictions imposed
by the Agreement.
Since there are no extraordinary covenants, conditions, or restrictions stipulated in the Agreement,
KMA concludes that the fair re -use of the Property is equal to its fair market value at highest and
best use, or $870,000.
Summary Report
Palm Plaza
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16104.010.001
Keyser Marston Associates, Inc.
Page 6
Attachment No. 3
V. COMPENSATION WHICH THE BUYER WILL BE REQUIRED TO PAY
The value of the compensation to be received by the Seller for the Property under the terms
of the Agreement is $870,000.
Summary Report
Palm Plaza
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Keyser Marston Associates, Inc.
Page 7
Attachment No. 3
VI. EXPLANATION OF THE DIFFERENCE, IF ANY, BETWEEN THE COMPENSATION TO BE PAID
TO THE SELLER BY THE PROPOSED TRANSACTION AND THE FAIR MARKET VALUE OF
THE INTEREST TO BE CONVEYED AT THE HIGHEST AND BEST USE CONSISTENT WITH
THE GENERAL PLAN AND ZONING CODE
The fair market value of the interest to be conveyed at its highest and best use is $870,000.
The value of the compensation to be received by the Seller is $870,000.
The compensation to be paid to the Seller is equal to the fair market value of the interest to
be conveyed at its highest and best use.
Summary Report
Palm Plaza
16062ndh
16104.010.001
Keyser Marston Associates, Inc.
Page 8
Attachment No. 3
VII. EXPLANATION OF WHY THE SALE OF THE PROPERTY WILL CONTRIBUTE TO ECONOMIC
OPPORTUNITY
Implementation of the proposed Agreement will contribute to economic opportunity in the immediate
vicinity and the City as a whole. Specifically, development of the Project is anticipated to:
• Utilize a long -vacant property
• Generate both construction and ongoing employment
• Increase building fees, property taxes, and other revenues to the City
• Catalyze further development in the vicinity of the Project
Summary Report
Palm Plaza
16062ndh
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Keyser Marston Associates, Inc.
Page 9
Attachment No. 3
VIII. LIMITING CONDITIONS
The estimates of re -use and fair market value at the highest and best use contained in this
Summary Report assume compliance with the following assumptions:
1. There are no known soil or subsoil problems, including toxic or hazardous conditions on
the Property that need to be remediated in order to develop the Property.
2. The ultimate development will not vary significantly from that assumed in this Summary
Report.
3. The title of the property is good and marketable; no title search has been made, nor have
we attempted to determine the ownership of the property. The value estimates are given
without regard to any questions of title, boundaries, encumbrances, liens or
encroachments. It is assumed that all assessments, if any are paid.
4. The Property will be in conformance with the applicable zoning and building ordinances.
5. Information provided by such local sources as governmental agencies, financial
institutions, realtors, buyers, sellers, and others was considered in light of its source, and
checked by secondary means.
6. If an unforeseen change occurs in the economy, the conclusions herein may no longer be
valid.
7. The development will adhere to the schedule of performance described in the Agreement.
8. Both parties are well informed and well advised and each is acting prudently in what
he/she considers his/her own best interest.
attachment
Summary Report
Palm Plaza
16062ndh
16104.010.001
Keyser Marston Associates, Inc.
Page 10
Attachment No. 3
TABLE 1
MULTI -FAMILY RESIDENTIAL LAND SALES COMPARABLES, JANUARY 2014 TO PRESENT (1)
PALM PLAZA
CITY OF NATIONAL CITY
# of Density
Sale Date Address City Sale Price Acres $/SF Units (DU/AC) $/Unit
08/13/15 1105 National City Boulevard National City $3,500,000 1.33 $60 166 125 $21,084
06/06/14 222 Church Avenue Chula Vista $450,000 0.24 $43 15 63 $30,000
05/09/14 172 4th Avenue Chula Vista $200,000 0.17 $27 4 (2) 26 $45,915
05/31/16 701 D St Chula Vista $4,700,000 4.35 $25 72 (2) 17 $65,278
03/12/14 1455 Sheryl Lane National City $1,750,000 1.89 $21 70 (2) 37 $25,000
10/02/15 2501 E 18th Street National City $270,000 0.34 $18 14 (2) 41 $19,286
02/03/16 Santa Carolina Rd Chula Vista $4,000,000 5.18 $18 96 19 $41,667
09/15/15 2604 Ridgeway Dr National City $1,350,000 2.23 $14 53 24 $25,472
04/02/15 35th St @ J Street San Diego $450,000 0.92 $11 18 20 $25,000
04/10/14 Smythe Avenue San Diego $465,000 1.25 $9 50 40 $9,300
Minimum $200,000 0.17 $9 4 17 $9,300
Maximum $4,700,000 5.18 $60 166 125 $65,278
Median $907,500 1.29 $20 52 31 $25,236
Average $1,713,500 1.79 $25 56 41 $30,800
(1) Selected sales transactions for residential land in the South Bay area.
(2) KMA estimate based on Internet research and maximum allowable density as stated in each city's municipal code.
Attachment No. 4
REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
1640 East Plaza Blvd., National City, CA
(APN # 557-410-20)
This REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS ("Agreement") is dated as of , 2016, and is
entered into by and between the CITY OF NATIONAL CITY, a California municipal
corporation ("City" or "Seller"), and PALM PLAZA ASSOCIATES, LLC, a California
limited liability company ("Buyer"). Seller and Buyer enter into this Agreement with
reference to the following recitals of fact (each, a "Recital"):
RECITALS
A. The Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property
generally located at 1640 East Plaza Blvd. (Assessor's Parcel No. 557-410-20) within the City
of National City, County of San Diego, State of California, as specifically described in Section
1 of this Agreement as the "Property"; and
B. Pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and
pursuant to California Health and Safety Code Section 34173, Successor Agency to the
Community Development Commission as the National City Redevelopment Agency
("Successor Agency") became the successor agency and successor -in -interest to the
Redevelopment Agency, confirmed by Resolution No. 2012-15 adopted on January 10, 2012,
by the City Council of the City; and
C. In accordance with California Health and Safety Code Section 34191.5, the Property
was listed on Successor Agency's Long Range Property Management Plan ("LRPMP"), which
provides that the Property will be transferred to and retained by the City for future development, and
the LRPMP has been approved by the Oversight Board of the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency ("Oversight Board') and
the California Department of Finance; and
D. At its regular meeting on May 17, 2016, the City of National City met and pursuant
to Resolution No. 2016-70 accepted the transfer of the Property, among other properties, from the
Successor Agency to the City in accordance with the LRPMP; and
E. At its regular meeting on May 17, 2016, the Successor Agency met and pursuant to
Resolution No. 2016-77 approved the transfer of the Property, among other properties, from the
Successor Agency to the City in accordance with the LRPMP; and
Page 1 of 30
Palm Plaza Purchase & Sale Agreement v2
Attachment No. 4
F. At its reg ,tar meeting on May 18, 2016, the Oversight Board met and pursuant to
Resolution No. 2016-04 approved and directed the transfer of the Property, among other properties,
from the Successor Agency to the City in accordance with the LRPMP; and
G. The Successor Agency has transferred (or will transfer prior to or concurrently with
the Close of Escrow) the Property to the City; and
H. Buyer has made an offer to purchase the Property from Seller at the Property's current
fair market value, and Seller desires to sell the Property to Buyer pursuant to the terms and conditions
of this Agreement.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES A_ND COVENANTS
OF SELLER AND BUYER SET FORTH IN TIIIS AGREEMENT AND OTHER GOOD AND
VALUABLE CONSIDERATION, SELLER AND BUYER AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 Definitions. The following words, terms and phrases are used in this Agreement
with the following meanings, unless the particular context or usage of a word, term or phrase
requires another interpretation:
1.1.1 Affiliate. (1) any Person directly or indirectly controlling, controlled by
or under common control with another Person; (2) any Person owning or controlling ten percent
(10%) or more of the outstanding voting securities of such other Person; or (3) if that other
Person is an officer, director, member or partner, any company for which such Person acts in
any such capacity. The term "control" as used in the immediately preceding sentence, means the
power to direct the management or the power to control election of the board of directors. It
shall be a presumption that control with respect to a corporation or limited liability company is
the right to exercise or control, directly or indirectly, more than fifty percent (50%) of the voting
rights attributable to the controlled corporation or limited liability company, and, with respect to
any individual, partnership, trust, other entity or association, control is the possession, indirectly
or directly, of the power to direct or cause the direction of the management or policies of the
controlled entity. It shall also be a presumption that the manager of a limited liability company
controls such limited liability company.
1.1.2 Agreement. This Real Property Purchase and Sale Agreement and Joint
Escrow Instructions by and between Seller and Buyer, including al1 of the attached Exhibits.
1.13 Approval. Any approval, consent, certificate, ruling, authorization, or
amendment to any of the foregoing, as shall be necessary or appropriate under any Law to complete the
purchase and sale of the Property.
Page 2 of 30
Palm Plaza Purchase & Salc Agreement v2
Attachment No. 4
1.1 A Bankruptcy Law. Title 11 of the United State Code or any other or successor
State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee,
bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters.
1.1.5 Bankruptcy Proceeding. Any proceeding, whether voluntary or involuntary,
under any Bankruptcy Law.
1.1.6 Business Day. Any weekday on which the Seller is open to conduct
regular governmental functions.
1.1.7 Buyer. Palm Plaza Associates, LLC, a California limited liability company,
and any permitted assignee of or successor to the rights, powers, or responsibilities of Buyer under
this Agreement.
1.1.8 Buyer Title Policy. A standard CLTA owners' policy of title insurance
issued by the Title Company, with coverage in the amount of the Purchase Price, showing title to the
Property vested in Buyer, subject to Permitted Exceptions.
1.1.9 CEQA. The California Environmental Quality Act, Public Resources Code
Section 21000, et seq. and implementing regulations contained in Title 14, Chapter 3, Section 15000, et seq. of
the California Code ofRegulations.
1.1.10 CEQA Documents. Any exemption determination, any Negative Declaration
(mitigated or otherwise) or any Environmental Impact Report (including any addendum or amendment to, or
subsequent or supplemental Environmental Impact Report) required or permitted by any Government, pursuant
In CEQA, to issue any discretionary Approval required to approve this Agreement
1.1.11 City or Seller. The City of National City, a California municipal
corporation, and any permitted assignee of or successor to the rights, powers, or responsibilities of
Seller under this Agreement
in function.
1.1.12 City Manager. The City Manager of Seller or his or her designee or successor
1.1.13 Claim. Any claim, loss, cost, damage, expense, liability, lien, action,
cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge,
award, assessment, fine or penalty of any kind (including consultant and expert fees and
expenses and investigation costs of whatever kind or nature and, if an Indemnitor improperly
fails to provide a defense for an Indemnitee, then Legal Costs of the Indemnitee) and any
judgment.
1.1.14 Close of Escrow. The first date on which the Escrow Agent has filed
the Grant Deed with the County for recording in the official records of the County.
1.1.15 Control. Possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether by ownership or Equity
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Interests, by contract or otherwise.
1.1.16 County. The County of San Diego, California.
1.1.17 Default. An Escrow Default, a Monetary Default, or a Non -Monetary
1.1.18 Default Interest. Interest at an annual rate equal to the lesser of (a) eight
percent (8%) per annum; or (b) the Usury Limit
1.1.19 Deposit. Twenty Thousand and No/100 Dollars ($20,000).
Default.
1.120 Due Diligence Materials. All of the following. (a) the Preliminary Report; (b)
any and all environmental reports relating to the Property in the possession of Seller, and (iii) copies of any
and all material documents that pertain to the physical condition of the Property in the possession of Seller.
1.121 Due Diligence Period. The period of time commencing upon the Effective Date
and expiring ninety (90) days thereafter.
1.1.22 Effective Date. Defined in Section 2 of this Agreement.
1.1.23 Environmental Claim. Any and all claims, demands, damages, losses,
liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs,
disbursementsor expenses, including Legal Costs and fees and costs of environmental consultants and other
experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever,
directly or indirectly, relating to or arising from any actual or alleged violation of any Environmental Law
or Hazardous Substance Discharge.
1.1.22 Environmental Laws. All Federal, State, local (including City) laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, or requirements of any Government authority, now
in effect or enacted after the Effective Date of this Agreement, regulating, relating to, or imposing liability
or standards of conduct concerning any Hazardous Substance, the won or protection of the
environment, including ambient air, soil, soil vapor, grntmdwater, surface water, or land use or pertaining to
occupational health or industrial hygiene or occupational or environmental conditions on, under or about
the Property, as now or may at any latex time be in effect, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA") [42 U.S.C. § 9601 et seq.];
the Resource Conservation and Recovery Act of 1976 ("RCRA") [42 U.S.C. § 6901 et seq.];
the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33
U.S.C. § 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 U.S.C. § 2601 et seq.];
the Hazardous Materials Transportation Act ("HMTA") [49 U.S.C. § 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 U.S.C. § 6901 et seq.]; the Clean Air Act [42 U.S.C. § 7401 et seq.];
the Safe Drinking Water Act [42 U.S.C. § 300f et seq.]; the Solid Waste Disposal Act [42 U.S.C.
§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C. § 101 et seq.]; the
Emergency Planning and Community Right to Know Act [42 U.S.C. § 11001 et seg.]; the
Occupational Safety and Health Act [29 U.S.C. §§ 655 and 657]; the California Underground
Storage of Hazardous Substances Act [California Health and Safety Code § 25300 et seq.]; the
California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code
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§ 24249.5 et seq.]; or the Porter -Cologne Water Q ,ality Act [California Water Code § 13000 et
seq.]; together with any regulations promulgated under the authorities referenced in this Section.
1.123 Equity Interest. All or any part of any direct equity or ownership
interest(s) (whether stock, partnership interest, beneficial interest in a trust, membership interest in
a limited liability company, or other interest of an ownership or equity nature) in any entity, at any
tier of ownership, that directly owns or holds any ownership or equity interest in a Person.
1.124 Escrow. An escrow, as defined in California Civil Code Section 1057
and California Financial Code Section 17003(a), that is conducted by the Escrow Agent with
respect to the sale of the Property from Seller to Buyer pursuant to this Agreement.
1.125 Escrow Agent, Carla Burchard, Stewart Title of California, Inc., or such
other Person mutually agreed upon in writing by both Seller and Buyer.
1.1.26 Escrow Closing Date. Subject to the immediately following paragraph
and subject to satisfaction (or waiver by the benefitted Party or Parties) of all of the conditions
to closing set forth in Sections 4.4 and 4.5, unless extended by the Parties as set forth in Section
4.9 below, the Escrow Closing Date shall occur on or before one hundred eighty (180) days
following the Effective Date.
In the event the condition set forth in Section 4.5.1 below has not been satisfied in time
for the Close of Escrow to occur on or before one hundred eighty (180) days following the
Effective Date, the outside Escrow Closing Date provided for in the preceding paragraph shall
be extended from one hundred eighty (180) days following the Effective Date to the date that
is two (2) weeks after the Parties receive notice that the condition set forth in Section 4.5.1 has
been satisfied or June 30, 2017, whichever date is earlier. There shall be no extension
permitted of the June 30, 2017 outside Escrow Closing Date.
1.127 Escrow Closing Statement. A statement prepared by the Escrow Agent
indicating, among other things, the Escrow Agent's estimate of all funds to be deposited or
received by Seller or Buyer, respectively, and all charges to be paid by Seller or Buyer,
respectively, through the Escrow.
1.128 Escrow Default. The unexcused failure of a Party to submit any
document or funds to the Escrow Agent as reasonably necessary to close the Escrow, pursuant to
the terms and conditions of this Agreement.
1.1.29 Escrow Opening Date. The first date on which a copy of this
Agreement, signed by both Seller and Buyer, is deposited with the Escrow Agent, as provided in
Section 3.1 of this Agreement.
1.1.30 Event of Default. The occurrence of any one or more of the following:
(a) Monetary Default. A Monetary Default that continues for fifteen
(15) calendar days after Notice to the Party in Default, specifying in reasonable detail the amount
of money not paid and the nature and calculation of each such amount or the bond, surety, or
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insurance not provided;
(b) Escrow Closing Default, An Escrow Default that continues for seven
(7) calendar days after Notice to the Party in Default, specifying in reasonable detail the
document or funds not submitted to the Escrow Agent;
(c) Bankruptcy or Insolvency. Buyer admits in writing that Buyer is unable
to pay Buyer's debts as they become due or Buyer becomes subject to any Bankruptcy Proceeding, or a
custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure
is made with respect to, substantially all of Buyer's assets or Buyer's interest in this Agreement or the
Property;
(d) Transfer. The occurrencc of a Transfer, whether voluntarily of
involuntarily or by operation of Law, in violation of the terms or conditions or this Agreement;
(e) Non -Monetary Default. Any Non -Monetary Default, other than
those specifically addressed in Subsections (c) or (d) above, that is not cured within fifteen (15)
calendar days after Notice to the Party in Default describing the Non -Monetary Default in
reasonable detail. In the case of such a Non -Monetary Default that cannot with reasonable
diligence be cured within fifteen (15) calendar days after the effective date of such Notice, an Event
of Default shall occur, if the Party in Default does not do all of the following: (a) within fifteen
(15) calendar days after Notice of such Non -Monetary Default, advise the other Party of the
intention of the Party in Default to take all reasonable steps to cure such Non -Monetary Default;
(b) duly commence such cure within such fifteen (15) calendar day period; and (c) diligently
prosecute such cure to completion within a reasonable time under the circumstances.
1.131 Federal. The federal government of the United States of America.
1.1.32 FIRPTA Affidavit. A certification that Seller is not a "foreign person"
within the meaning of such term under Section 1445 of the United States Internal Revenue Code.
1.1.33 Form 593. A California Franchise Tax Board Form 593-C.
1.134 Government. Any and all courts, boards, agencies, commissions,
offices, or authorities of any nature whatsoever of any governmental unit (Federal, State, County,
district, municipal, City or otherwise) whether now or later in existence. It is acknowledged
that Seller is a form of Government.
1.1.36 Grant Deed. A grant deed conveying Seller's interest in the Property
from Seller to Buyer, at the Close of Escrow, substantially in the form of Exhibit "B" attached to
this Agreement and incorporated herein by this reference.
1.1.37 Hazardous Substance. Any flammable substance, explosive,
radioactive material, asbestos, asbestos -containing material, polychlorinated biphenyl, chemical
known to cause cancer or reproductive toxicity, pollutant, contaminant, hazardous waste,
medical wastes, toxic substance or related material, petroleum, petroleum product and any
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"hazardous" or "toxic" material, substance or waste that is defined by those or similar terms or is
regulated as such under any Law, including any material, substance or waste that is: (a) defined
as a "hazardous substance" under Section 311 of the Water Pollution Control Act (33 U.S.C. §
1317), as amended; (b) designated as "hazardous substances" pursuant to 33 U.S.C. § 1321; (c)
defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. § 6901 et seq., as amended; (d) defined as a "hazardous substance" or
"hazardous waste" under Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act
of 1986, 42 U.S.C. § 9601 et seq., or any so-called "superfund" or "superlien" law, (e) defined
as a "pollutant" or "contaminant" under 42 U.S.C. § 9601(33); (f) defined as "hazardous waste"
under 40 C.F.R. Part 260; (g) defined as a "hazardous chemical" under 29 C.F.R Part 1910; (h)
any matter within the definition of "hazardous substance" set forth in 15 U.S.C. § 1262; (i) any
matter, waste or substance regulated under the Toxic Substances Control Act ("TSCA") [15
U.S.C. Sections 2601 et seq.]; (j) any matter, waste or substance regulated under the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 1801 et seq.; (k) those substances listed in the
United States Department of Transportation (DOT) Table [49 C.F.R. 172.101]; (1) any matter,
waste or substances designated by the EPA, or any successor authority, as a hazardous substance
[40 C.F.R. Part 302]; (m) defined as "hazardous waste" in Section 25117 of the California Health
and Safety Code; (n) defined as a "hazardous substance" in Section 25316 of the California Health
and Safety Code; (o) subject to any other Law regulating, relating to or imposing obligations,
liability or standards of conduct concerning protection of human health, plant life, animal life,
natural resources, property or the enjoyment of life or property free from the presence in the
environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (p)
that is or becomes regulated or classified as hazardous or toxic under Law or in the regulations
adopted pursuant to Law.
1.1.38 Hazardous Substance Discharge. Any deposit, discharge, generation,
release or spill of a Hazardous Substance that occurs at, on, under, into or from the Property, or
during transportation of any Hazardous Substance to or from the Property, or that arises at any
time from any construction, installation, use or operation or other activities conducted at, on,
under or from the Premises, whether or not caused by a Party.
1.1.39 Indemnify. Where this Agreement states that any Indemnitor shall
"indemnify" any Indemnitee from, against, or for a particular Claim, that the Indemnitor shall
indemnify the Indemnitee and protect, defend and hold the Indemnitee harmless from and against
such Claim (alleged or otherwise). "Indemnified" shall have the correlative meaning.
1.1.40 Indemnitee. Any Person entitled to be Indemnified under the terms of
this Agreement.
1.1.41 Indemnitor. A Party that agrees to Indemnify any other Person under
the terms of this Agreement.
1.1.42 Law. Every law, ordinance, requirement, order, proclamation, directive,
rule or regulation of any Government applicable to the Property, in any way, including relating to
any development, construction, use, maintenance, taxation, operation, occupancy of or
environmental conditions affecting the Property or otherwise relating to this Agreement or any
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Party's rig ts, obligations or remedies under this Agreement, or any Transfer of any of the
foregoing, whether in force on the Effective Date or passed, enacted, modified, amended or
imposed at some later time, subject in all cases, however, to any applicable waiver, variance
or exemption.
1.1.43 Legal Costs. In reference to any Person, all reasonable costs and
expenses such Person incurs in any legal proceeding or other matter for which such Person is
entitled to be reimbursed for its Legal Costs, including reasonable attorneys' fees, court costs and
expenses and consultant and expert witness fees and expenses.
1.1.44 Lender. The holder of any Security Instrument and the successors and assigns
of such holder.
1.1.45 Monetary Default. Any failure by either Party to pay or deposit, when
and as this Agreement requires, any amount of money, bond, surety or evidence of any insurance
coverage required to be provided under this Agreement, whether to or with a Party or a Third
Person.
1.I.46 Non -Monetary Default. The occurrence of any of the following, except
to the extent constituting a Monetary Default or an Escrow Default: (a) any failure of a Party to
perform any of such Party's obligations under this Agreement; (b) any failure of a Party to
comply with any material restriction or prohibition in this Agreement; or (c) any other event or
circumstance that, with passage of time or giving of Notice, or both, would constitute a breach of
this Agreement by a Party.
1.1.47 Notice. Any consent, demand, designation, election, notice, or request
relating to this Agreement, including any Notice of Default. All Notices must be in writing.
1.1.48 Notice of Default. Any Notice claiming or giving Notice ofa Default.
1.1.49 Notify. To give a Notice.
1.1.50 Parties. Collectively, Seller and Buyer.
1.1.51 Party. Individually, either Seller or Buyer, as applicable.
1.1.52 Permitted Exception. All of the following: (a) the printed exceptions and
exclusions in the Buyer Title Policy; (b) all items shown in the Preliminary Report as exceptions to
coverage under the proposed Buyer Title Policy approved by Buyer, or deemed approved by Buyer,
as provided in 3.3.3 below; (c) any lien for non -delinquent property taxes or assessments; (d) any
Laws applicable to the Property; (d) this Agreement; (e) any existing improvements on the
Property; (f) any Approval; (g) any other document or encumbrance expressly required or
allowed to be recorded against the Property pursuant to the terms of this Agreement; and (h) all
covenants, conditions, restrictions, reservations, rights, rights of way, easements,
encumbrances, liens and other matters of record or that would be disclosed by an accurate
inspection or survey of the Property.
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1.1.55 Person. Any association, corporation, governmental entity or agency,
individual, joint venture, joint-stock company, limited liability company, partnership, trust,
unincorporated organization or other entity of any kind.
1.1.56 Preliminary Report. A preliminary report issued by the Title Company
in contemplation of the issuance of the Buyer Title Policy, accompanied by the best available
copies of all documents listed in the preliminary report as exceptions to coverage under the proposed
Buyer Title Policy.
1.1.57 Project A seventy-two (72) unit multifamily residential condominium project to
be developed and constructed on the Property which shall include the development, construction and
installation of all landscaping, parking, and all other required on- and off -site private and public improvements
associated with the Project
1.1.58 Property. That certain real property specifically described in Exhibit
"A" attached to this Agreement and incorporated herein by this reference.
1.1.59 Purchase Price. Eight Hundred Seventy Thousand and No/100 Dollars
($870,000), which is the fair market value of the Property as of February 29, 2016, pursuant to
that certain appraisal report conducted by Kent Carpenter of Hilco Valuation Services.
1.1.60 Real Estate Taxes. All general and special real estate taxes (including
taxes on fixtures and equipment, sales taxes, use taxes and the like), supplemental taxes,
possessory interest taxes, special taxes imposed pursuant to a special taxing district, assessments,
municipal water and sewer rents, rates and charges, excises, levies, license and permit fees, fines,
penalties and other governmental charges and any interest or costs with respect thereto, general
and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or nature
whatsoever regarding the Property that may be assessed, levied, imposed upon, or become due
and payable out of or in respect of, or charged with respect to or become a lien on, the Property.
1.1.61 Seller Parties. Collectively, the Seller, the Seller's governing body, and the
Seller's elected officals, employees, agents and attorneys.
1.1.62 State. The State of California.
1.1.63 Third Person. Any Person that is not a Party, an Affiliate of a Party or
an elected official, officer, director, manager, shareholder, member, principal, partner, employee
or agent of a Party.
1.1.64 Title Company. Stewart Title of California, Inc., or such other Person
mutually agreed upon in writing by both Seller and Buyer.
1.1.65 Transfer. Regarding any property, right or obligation, any of the following,
whether by operation of Law or otherwise, whether voluntary or involuntary, and whether direct or indirect
(a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether
direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable
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interest or estate in such property, right or obligation or any part of it ('including the grant of any easeme ,
lien, or other encumbrance); (b) any conversion, exchange, issuance, modification, reallocation, sale, or other
transfer of any Equity Interest(s) in the owner of such property, right or obligation by the holders of such
Equity Interest(s); or (c) any transaction that is in substance equivalent to any of the foregoing. A transaction
affecting Equity Interests, as referred to in clauses (b) or (c) above of this Section, shall be deemed a Transfer
by Buyer, even though Buyer is not technically the transferor. A "Transfer" shall not, however, include any
of the following (provided that the other Party has received Notice of such occurrence) relating to the Property
or any Equity Interest: (i) a mere change in the form of ownership with no material change in beneficial
ownership and constitutes a tax-free transaction under Federal income tax law and the State real estate transfer
tax law, (ii) a conveyance only to member(s) of the immediate family(ies) of the transferor(s) or trusts for
their benefit; or (iii) a conveyance only to a Person that, as of the Effective Date, holds an Equity Interest in
the entity whose Equity Interest is being transferred.
1.1.66 Unavoidable Delay. A delay in either Party performing any obligation
under this Agreement arising from or on account of any cause whatsoever beyond the Party's
reasonable control, including strikes, labor troubles or other union activities, casualty, war, acts
of terrorism, riots, litigation, governmental action or inaction, regional natural disasters or
inability to obtain required materials. Unavoidable Delay shall not include delay caused by a
Party's financial condition or insolvency.
1.1.67 Usury Limit. The highest rate of interest, if any, that Law allows under
the circumstances.
2. ElkECTIVE DATE
This Agreement shall become effective on the daft- on which both of the following have occurred
("Effective Date"): (a) Seller has received three (3) counterpart originals of this Agreement signed by the
authorized representative(s) of Buyer; and (b) this Agreement has been approved by Seller's governing
body and executed by Seller's City Manager.
3. PURCHASE AND SALE OF PREMISES
3.1 Escrow. Seller shall sell and convey fee title to the Property to Buyer and Buyer
shall purchase and acquire fee title to the Property from Seller, subject to the Permitted
Exceptions and the terms and conditions of this Agreement. For the purposes of exchanging
funds and documents to complete the sale of the Property from Seller to Buyer and the purchase
of the Property by Buyer from Seller, pursuant to the terms and conditions of this Agreement,
Seller and Buyer agree to open the Escrow with the Escrow Agent. The provisions of Section
4 of this Agreement are, and shall constitute, the joint escrow instructions of the Parties to the
Escrow Agent for conducting the Escrow.
3.2 Consideration. Buyer shall purchase the Property from Seller for the Purchase
Price, subject to the terms and conditions of this Agreement. Buyer shall deposit the Purchase
Price into the Escrow, as follows:
3.2.1 Deposit. Upon the Escrow Opening Date, Buyer shall deposit the
Deposit into the Escrow. The Deposit shall initially be refundable until the due diligence
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condition of Section 3.3 is satisfied, and thereafter shall be non-refundable unless this
Agreement is thereafter terminated due to a Seller default, the failure of a Buyer's condition to
Close of Escrow, a termination of this Agreement not due to Buyer's default, or as otherwise
xpressly provided in this Agreement. The Deposit shall be held in Escrow until the Close of
Escrow and shall be applied to the Purchase Price.
3.2.2 Remaining Purchase Price. At lease one (1) Business Day before the
Escrow Closing Date, Buyer shall deposit into the Escrow the amount of the Purchase Price
less the amount of the Deposit.
3.2.3 Independent Consideration. Notwithstanding any other provision of
this Agreement to the contrary, the sum of One Hundred and No/100 Dollars ($100.00)
out of the Deposit shall be paid by Escrow to Seller immediately following Escrow's receipt
of the Deposit as "Independent Consideration" for the execution of this Agreement and the
rights of Buyer granted herein, which said Independent Consideration shall be paid to Seller in
all instances, upon execution hereof is fully earned, shall be applied against the Purchase Price
and is not refundable for any reason, notwithstanding anything herein to the contrary. All
references to Deposit herein shall mean the Deposit, less the Independent Consideration.
3.3 Due Diligence.
3.3.1 To the extent in Seller's possession, immediately following the
Effective Date Seller shall deliver to Buyer, without any representation or warranty by Seller,
the Due Diligence Materials (except for the Preliminary Report, which shall be provided by
the Title Company).
3.3.2 Prior to the expiration of the Due Diligence Period, Buyer shall have the
right to review and approve or disapprove, in its discretion, at Buyer's sole cost and expense,
any environmental reports, soils inspection, conditions of title, zoning, surveys, the Due
Diligence Materials, and all other reports as Buyer may deem necessary or appropriate in
connection with this Agreement. In the event Buyer fords the Property unsatisfactory for any
reason, then prior to the expiration of the Due Diligence Period Buyer shall have the right to,
by a writing delivered to Seller and Escrow Agent, teiuiinate this Agreement and the Escrow
created pursuant thereto, in which event Buyer shall be entitled to the return of all monies
previously deposited with Escrow Agent or released to Seller pursuant to this Agreement, and
the Escrow and the rights and obligations of the Parties hereunder shall thereafter terminate
and Buyer and Seller shall have no obligation to each other (except as otherwise set forth
herein).
3.3.3 If, prior to the expiration of the Due Diligence Period, Buyer
disapproves by a writing delivered to Seller any matters of title shown in the Preliminary
Report, then Seller may, within fourteen (14) business days after its receipt of Buyer's notice
of disapproval, elect in writing to eliminate or ameliorate to Buyer's satisfaction the
disapproved title matters. Failure of Buyer to give disapproval of any matters of title shown in
the Preliminary Report on or before the expiration of the Due Diligence Period shall be deemed
to constitute Buyer's approval of all matters of title in the Preliminary Report. If Seller does
not elect to eliminate or ameliorate to Buyer's satisfaction any disapproved matters of title
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shown in the Preliminary Report, then Buyer shall have the right to, by a writing delivered to
Seller and Escrow Agent: (a) waive its prior disapproval, in which event the disapproved
matters shall be deemed approved; or (ii) terminate this Agreement and the Escrow created
pursuant thereto, in which event Buyer shall be entitled to the return of all monies previously
deposited with Escrow Agent or released to Seller pursuant to this Agreement, and the Escrow
and the rights and obligations of the Parties hereunder shall thereafter terminate and Buyer and
Seller shall have no obligation to each other (except as otherwise set forth herein).
3.3.4 Upon the Effective Date of this Agreement until the expiration of the
Due Diligence Period, subject to the provisions of this Section, Buyer may enter upon the
Property to conduct any investigation, test, study or analysis related to the development of the
Project. Buyer shall pay all costs with respect to such studies and tests and shall be solely
responsible for the disposal of any soil samples (including any Hazardous Substance or other
wastes in these samples), which obligation shall survive the termination of this Agreement.
Buyer shall exercise due care, follow best commercial practices in connection with such entry
and testing, and shall comply with all laws. ordinances, rules, regulations, orders and the like
in connection with any entry onto or testing of the Property. Prior to any entry onto the
Property, Buyer shall obtain and maintain, and shall require that its agents, consultants,
contractors and representatives (collectively, the "Agents") to obtain and maintnin in full force
during the term of this Agreement, at Buyer's sole cost and expense, a policy of comprehensive
liability insurance including property damage, with limits of at least $2M per occurrence/$4M
aggregate, which will insure The City of National City, its elected officials, officers, agents
and employees against liability for injury to persons, damage to property, and death of any
person arising in connection with Buyer or its Agents entry upon the Property and/or
conducting of tests or studies thereon. Prior to any entry onto the Property, the policy shall be
approved in writing as to form and insurance (including approval of the insurance company)
by the City. Buyer shall provide City with a copy of any insurance policy required hereunder,
including an endorsement that states that the policy will not be cancelled except after thirty
(30) days' notice in writing to City and names the additional insureds as required herein. Buyer
shall provide City with evidence of such insurance coverage prior to any entry onto the
Property by Buyer or its Agents. Prior to each and every entry onto the Property, Buyer shall
provide City with not less than 48 hours prior written notice of Buyer or its Agents intended
entry upon the Property and/or conducting of tests or studies thereon. Following any such
tests or studies, Buyer shall leave the Property in substantially similar condition as of the
Effective Date of this Agreement, and Buyer shall indemnify, defend and hold harmless City
and its officers, members, employees and agents and the Property from and against any
liabilities, claims, damages (including injury or damage to person or property), losses, costs,
expenses and fees (including reasonable attorneys' and experts' fees and costs) relating to or
resulting from the entry, inspections and studies conducted by Buyer and its Agents on, under,
or about the Property. The foregoing indemnity shall survive beyond the Closing, or, if the
sale is not consummated, beyond the termination of this Agreement.
3.3.5 If, prior to the expiration of the Due Diligence Period, Buyer
disapproves of the condition of the Property, then Buyer shall have the right to, by a writing
delivered to Seller and Escrow Agent, terminate this Agreement and the Escrow created
pursuant thereto, in which event Buyer shall be entitled to the return of all monies previously
deposited with Escrow Agent or released to Seller pursuant to this Agreement, and the Escrow
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and the rights and obligations of the Parties hereunder shall thereafter terminate and Buyer and
Seller shall have no obligation to each other (except as otherwise set forth herein).
3.3.6 In the event of a termination of this Agreement pursuant to this Section,
notwithstanding any other provision of this Agreement to the contrary, Buyer shall pay all
escrow fees and costs.
3.4 "AS -IS" Acquisition. The Close of Escrow shall evidence Buyer's
unconditional and irrevocable acceptance of the Property in the Property's AS IS, WHERE IS,
SUBJECT TO ALL FAULTS CONDITION, AS OF THE CLOSE OF ESCROW, WITHOUT
WARRANTY as to character, quality, performance, condition, title, physical condition, soil
conditions, the presence or absence of fill, shoring or bluff stability or support, subsurface or
lateral support, zoning, land use restrictions, the availability or location of utilities or services,
the location of any public infrastructure on or off of the Property (active, inactive or
abandoned), the suitability of the Property or the existence or absence of Hazardous Substances
affecting the Property and with full knowledge of the physical condition of the Property, the
nature of Seller's interest in and use of the Property, all laws applicable to the Property and
any and all conditions, covenants, restrictions, encumbrances and all matters of record relating
to the Property. The Close of Escrow shall further constitute Buyer's representation and
warranty to Seller that: (a) Buyer has had ample opportunity to inspect and evaluate the
Property and the feasibility of the uses and activities Buyer is entitled to conduct on the
Property; (b) Buyer is relying entirely on Buyer's experience, expertise and Buyer's own
inspection of the Property in the Property's current state in proceeding with acquisition of the
Property; (c) Buyer accepts the Property in the Property's present condition; (d) to the extent
that Buyer's own expertise with respect to any matter regarding the Property is insufficient to
enable Buyer to reach an informed conclusion regarding such matter, Buyer has engaged the
services of Persons qualified to advise Buyer with respect to such matters; (e) Buyer has
received assurances acceptable to Buyer by means independent of Seller or Seller's agents of
the truth of all facts material to Buyer's acquisition of the Property pursuant to this Agreement;
and (f) the Property is being acquired by Buyer as a result of Buyer's own knowledge,
inspection and investigation of the Property and not as a result of any representation made by
Seller or Seller's agents relating to the condition of the Property, unless such statement or
representation is expressly and specifically set forth in this Agreement. Seller hereby expressly and
specifically disclaims any express or implied warranties regarding the Property.
3.5 Reservations. The approval of this Agreement by Seller shall not be binding on
the City Council of the City or any commission, committee, board or body of the City regarding
any other Approvals required by such bodies. No action by Seller with reference to this
Agreement or any related documents shall be deemed to constitute issuance or waiver of any
required Approvals regarding the Property or Buyer.
3.6 Non -Discrimination.
3.6.1 Buyer herein covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
be no discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those
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Attachment No. 4
bases are defined in Sections 12926, 12.926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall Buyer itself, or any
person claiming under or through Buyer, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the Property. The
foregoing covenants shall run with the land.
3.6.2 Buyer herein further covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
be no discrimination on the basis of race, gender, religion, national origin, ethnicity, sexual
orientation, age or disability in the solicitation, selection, hiring or treatment of any contractors
or consultants, to participate in subcontracting/subconsulting opportunities.
3.6.3 Buyer understands and agrees that violation of any Subsection of this
Section 3.6 shall be considered a material breach of this Agreement and may result in
termination, debarment or other sanctions.
3.7 Form of Nondiscrimination and Nonsegregation Clauses . All deeds, leases or
contracts made relative to the Property, improvements thereon, or any part thereof, shall
contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
3.7.1 (a) (1) In deeds: "The grantee herein covenants by and for
himself or herself; his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under
or through him or her, establish or permit any practice or practices of discrimination or
segregation with reference to the selection, Iocation, number, use or occupancy of tenants,
lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall also apply to the above paragraph.
3.7.2 (a) (I) In leases: "i'he lessee herein covenants by and for
himself or herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon and subject to
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Attachment No. 4
the following conditions: That there shall be no discrimination against or segTegation of any
person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased."
(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall apply to the above paragraph.
3.7.3 In contracts: "There shall be no discrimination against or segregation
of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the Property, nor shall the grantee or transferee itself or any person claiming
under or through him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sublessees, subtenants, or vendees of the Property."
3.8 Effect and Duration of Covenants. The covenants established in this Agreement
shall run with the land, without regard to technical classification and designation, and shall be
for the benefit and in favor of and enforceable against the original Buyer, or if the Buyer is no
longer the owner, then against its successors in interest, assigns and heirs. Unless set forth
otherwise, the covenants described in Section 3.7 shall commence upon the Close of Escrow
and shall be set forth and shall run for the time periods set forth in the applicable Grant Deed.
4. JOINT ESCROW INSTRUCTIONS
4.1 Opening of Escrow. The purchase and sale of the Property shall take place
through the Escrow to be conducted by Escrow Agent. Escrow shall be deemed opened when
a fully signed copy of this Agreement has been delivered to Escrow Agent. Escrow Agent shall
confirm the Escrow Opening Date in writing to each of the Parties, with a copy of the Escrow
Agent Consent signed by the authorized representative(s) of the Escrow Agent.
4.2 Escrow Instructions. This Section 4 constitutes the joint escrow instructions of
the Parties to Escrow Agent for conduct of the Escrow for the purchase and sale of the Property,
as contemplated by this Agreement. Buyer and Seller shall sign such further escrow instructions
consistent with the provisions of this Agreement as may be reasonably requested by Escrow
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Attachment No. 4
Agent. In the event of any conflict between the provisions of this Agreement and any further
escrow instructions requested by Escrow Agent, the provisions of this Agreement shall control.
4.3 Escrow Agent Authority. Seller and Buyer authorize Escrow Agent to:
4.3.1 Charges. Pay and charge Seller and Buyer for their respective shares of
the applicable fees, taxes, charges and costs payable by either Seller or Buyer regarding the
Escrow;
4.3.2 Settlement/Closing Statements. Release each Party's Escrow Closing
Statement to the other Party;
4.3.3 Document Recording. File any documents delivered for recording
through the Escrow with the office of the Recorder of the County for recordation in the official
records of the County, pursuant to the joint instructions of the Parties; and
4.3.4 Counterpart Documents. Utilize documents signed by Seller or Buyer
in counterparts, including attaching separate signature pages to one original of the same
document.
4.4 Buyer's Conditions Precedent to Close of Escrow. Provided that the failure of
any such condition to be satisfied is not due to a Default under this Agreement by Buyer, Buyer's
obligation to purchase the Property from Seller on the Escrow Closing Date shall be conditioned
upon the satisfaction or waiver (waivers must be in writing and signed by Buyer) of each of the
following conditions on or before the Escrow Closing Date:
4.4.1 Title Policy. Title Company has agreed to issue the Buyer Title Policy
to Buyer upon payment of Title Company's premium for such policy;
4.4.2 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.4.3 Seller Escrow Deposits. Seller deposits all of the items into Escrow
required by Section 4.7 of this Agreement;
4.4.4 Settlement/Closing Statement. Buyer reasonably approves Buyer's
Escrow Closing Statement; and
4.4.5 Seller Pre -Closing Obligations. Seller performs all of Seller's material
obligations required to be performed by Seller pursuant to this Agreement prior to the Close of
Escrow.
4.5 Seller's Conditions Precedent to Close of Escrow. Provided that the failure of any
such condition to be satisfied is not due to a Default under this Agreement by Seller, Seller's
obligation to sell the Property to Buyer on the Escrow Closing Date shall be conditioned upon
the satisfaction or waiver (waivers must be in writing and signed by Seller) of each of the
following conditions precedent on or before the Escrow Closing Date:
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4.5.1 Compensation Agreement. Approval and full execution of a
compensation agreement by each and every affected taxing entity as set forth in the LRPMP;
4.5.2 Building Permit. Buyer obtains a building permit from the City of
National City for the development of the Project;
4.5.3 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.5.4 Buyer Escrow Deposits. Buyer deposits all of the items into Fsrrow
required by Section 4.6 of this Agreement;
4.5.5 Settlement/Closing Statement. Seller reasonably approves Seller's
Escrow Closing Statement; and
4.5.6 Title Policy. The Company has agreed to issue the Buyer Title Policy
to Buyer upon payment of Title Company's premium for such policy;
4.5.7 Buyer Pre -Closing Obligations. Buyer performs all of Buyer's material
obligations required to be performed by Buyer pursuant to this Agreement prior to Close of
Escrow.
4.6 Buyer's Escrow Deposits. Buyer shall deposit the following items into Escrow
and, concurrently, provide a copy of each document submitted into Escrow to Seller, at least one
(1) Business Day prior to the Escrow Closing Date:
4.6.1 Closing Funds. All amounts required to be deposited into Escrow by
Buyer under the terms of this Agreement to close the Escrow;
4.6.2 Certificate of Grant Deed Acceptance. The Certificate of Acceptance
attached to the Grant Deed signed by Buyer in recordable form;
4.6.3 Escrow Closing Statement. The Buyer's Escrow Closing Statement
signed by the authorized representative(s) of Buyer; and
4.6.4 Other Reasonable Items. Any other documents or funds required to be
delivered by Buyer under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that
have not previously been delivered by Buyer.
4.7 Seller's Escrow Deposits. Seller shall deposit the following documents into
Escrow and, concurrently, provide a copy of each document deposited into Escrow to Buyer, at
least one (1) Business Day prior to the Escrow Closing Date:
4.7.1 Grant Deed. The Grant Deed signed by the authorized representative(s) of
Seller in recordable form;
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4.7.2 Escrow Closing Statement. The Seller's Escrow Closing Statement
signed by the authorized representative(s) of Seller;
4.7.3 FIRPTA Affidavit. A FIRPTA affidavit signed by the authorized
representative(s) of Seller, in the form used by the Escrow Agent;
4.7.4 Form 593. A Form 593 signed by the authorized representative(s) of
Seller; and
4.7.5 Other Reasonable Items. Any other documents or funds required to be
delivered by Seller under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that
have not been previously delivered by Seller.
4.8 Closing Procedure. When each of Buyer's Escrow deposits, as set forth in Section
4.6 of this Agreement, and each of Seller's Escrow deposits as set forth in Section 4.7 of this
Agreement, are deposited into Escrow, Escrow Agent shall request confirmation in writing from
both Buyer and Seller that each of their respective conditions precedent to the Close of Escrow,
as set forth in Sections 4.4 and 4.5, respectively, are satisfied or waived. Upon Escrow Agent's
receipt of written confirmation from both Buyer and Seller that each of their respective conditions
precedent to the Close of Escrow are satisfied or waived, Escrow Agent shall close the Escrow by
doing all of the following:
4.8.1 Recording and Distribution of Documents. Escrow Agent shall cause
the following documents to be filed with the Recorder of the County for recording in the official
records of the County regarding the Property in the following order of priority at Close of
Escrow: (a) the Grant Deed; and (b) any other documents to be recorded regarding the Property
through the Escrow upon the joint instructions of the Parties. At Close of Escrow, Escrow Agent
shall deliver conformed copies of all documents filed for recording with in the official records of
the County through the Escrow to Seller, Buyer and any other Person designated in the written joint
escrow instructions of the Parties to receive an original or conformed copy of each such document.
Each conformed copy of a document filed for recording by Escrow Agent pursuant to this
Agreement shall show all recording information. The Parties intend and agree that this Section
4.8.1 shall establish the relative priorities of the documents to be recorded in the official records
of the County through the Escrow, by providing for recordation of senior interests prior to junior
interests, in the order provided in this Section 4.8.1;
4.8.2 Funds. Distribute all funds held by the Escrow Agent pursuant to the
Escrow Closing Statements approved in writing by Seller and Buyer, respectively;
4.8.3 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States
Internal Revenue Service;
4.8.4 Form 593. File the Form 593 with the California Franchise Tax Board;
and
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4.8.5 Title Policy. Obtain from the Title Company and deliver to Buyer the
Buyer Title Policy issued by the Title Company, with a copy delivered to Seller.
4.9 Close of Escrow. The Close of Escrow shall occur on or before the Escrow
Closing Date. The City Manager in his or her sole and absolute discretion, acting on behalf of the
Seller, is authorized to agree to one or more extensions of the Escrow Closing Date on behalf of
Seller up to a maximum time period extension of ninety (90) days in the aggregate; provided that
there shall be no extension permitted of the June 30, 2017 outside Escrow Closing Date set forth
in Section 1.1.26. If for any reason (other than a Default or Event of Default by such Party) the
Close of Escrow has not occurred on or before the Escrow Closing Date, then any Party not then
in Default under this Agreement may cancel the Escrow and terminate this Agreement, without
liability to the other Party or any other Person for such cancellation and termination, by delivering
Notice of termination to both the other Party and Escrow Agent. Following any such Notice of
termination of this Agreement and cancellation of the Escrow, the Parties and Escrow Agent shall
proceed pursuant to Section 4.13 of this Agreement. Without limiting the right of either Party to
cancel the Escrow and terminate this Agreement pursuant to this Section 4.9, if the Escrow does
not close on or before the Escrow Closing Date and neither Party has exercised its contractual right
to cancel the Escrow and terminate this Agreement under this Section 4.9 before the first date on
which Escrow Agent Notifies both Parties that Escrow is in a position to close in accordance with
the terms and conditions of this Agreement, then the Escrow shall close as soon as reasonably
possible following the first date on which Escrow Agent Notifies both Parties that Escrow is in a
position to close in accordance with the terms and conditions of this Agreement.
4.10 Escrow Costs. Escrow Agent shall Notify Buyer and Seller of the costs to be
borne by each of them at the Close of Escrow by delivering an Escrow Closing Statement to both
Seller and Buyer at least four (4) Business Days prior to the Escrow Closing Date. Each Party
shall pay its own costs and expenses arising in connection with the Close of Escrow (including,
without limitation, its own attorneys' and advisors' fees, charges, and disbursements), except
the following costs ("Closing Costs"), which shall be allocated between the Parties as follows:
(a) Escrow Agent charges for the conduct of the Escrow shall be paid one-half
(1/2) by Seller and one-half (1/2) by Buyer;
(b) The cost of the Buyer Title Policy attributable to the standard coverage
portion shall be paid by Seller;
(c) The cost of the Buyer Title Policy attributable to the extended coverage
portion or any additional coverage and any endorsements shall be paid by Buyer;
(d) The cost of any and all State, County, or City documentary stamps or
transfer taxes regarding the conveyance of the Property through the Escrow shall be paid by
Buyer;
(e) The cost of any recording fees in connection with the recording of any
documents in the official records of the County for the Close of Escrow and any and all other
charges, fees, and taxes levied by each and every Government relative to the conveyance of the Property
through Escrow shall be paid by Buyer;
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(f) Ad valorem taxes and assessments, if any, upon the Property, prior to
the conveyance of title of the Property to Buyer shall be paid by Seller, and after the
conveyance of title of the Property to Buyer shall be paid by Buyer consistent with Section
4.11 of this Agreement; and
(g) All other closing fees and costs shall be charged to and paid by Seller
and Buyer in accordance with customary practices in the County.
4.11 Allocation of Taxes. Real Estate Taxes relating to the Property, if any, shall be
prorated between Seller and Buyer as of Midnight on the date prior to the Close of Escrow.
4.12 Escrow Cancellation Charges. If the Escrow fails to close due to Seller's Default
under this Agreement, Seller shall pay all ordinary and reasonable Escrow and title order
cancellation charges charged by Escrow Agent or Title Company, respectively. If the Escrow
fails to close due to Buyer's Default under this Agreement, Buyer shall pay all ordinary and
reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company,
respectively. Except as set forth in Section 3.3., above, if the Escrow fails to close for any reason
other than the Default of either Buyer or Seller, Buyer and Seller shall each pay one-half (1/2) of
any ordinary and reasonable Escrow and title order cancellation charges charged by Escrow
Agent or Title Company, respectively.
4.13 Escrow Cancellation. If this Agreement is terminated pursuant to a contractual
right granted to a Party in this Agreement to terminate this Agreement (other than due to an
Event of Default by the other Party), the Parties shall do all of the following:
4.13.1 Cancellation Instructions. The Parties shall, within three (3) Business Days
following Escrow Agent's written request, sign any reasonable Escrow cancellation instructions
requested by Escrow Agent;
4.13.2 Return of Funds and Documents. Within ten (10) Business Days
following receipt by the Parties of a settlement statement of Rscrow and title order cancellation
charges from Escrow Agent (if any) or within twenty (20) calendar days following Notice of
termination, whichever is earlier: (a) Buyer or Escrow Agent shall return to Seller all documents
previously delivered by Seller to Buyer or Escrow Agent, respectively, regarding the Property or the
Escrow; (b) Seller or Escrow Agent shall return to Buyer all documents previously delivered by
Buyer to Seller or Escrow Agent, respectively, regarding the Property or the Escrow; (c) Escrow
Agent shall, unless otherwise expressly provided in this Agreement, return to Buyer all funds
deposited in Escrow by Buyer, less Buyer's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance with Sections 3.3 and 4.12 of this Agreement;
and (d) Escrow Agent shall, unless otherwise provided in this Agreement, return to Seller all funds
deposited in Escrow by Seller, less Seller's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance with Section 4.12 of this Agreement.
4.14 Report to IRS. After the Close of Escrow and prior to the last date on which such
report is required to be filed with the Internal Revenue Service under applicable Federal law,
if such report is required pursuant to Internal Revenue Code Section 6045(e), Escrow Agent
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Attachment No. 4
shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue
Service on Form 1099-B, W-9 or such other form(s) as may be specified by the Internal
Revenue Service pursuant to Internal Revenue Code Section 6045(e). Concurrently with the
filing of such reporting form with the Internal Revenue Service, Escrow Agent shall deliver a
copy of the filed form to both Seller and Buyer.
4.15 Condemnation. If any material portion of the Property, or any interest in any
portion of the Property, is taken by condemnation prior to the Close of Escrow by any condemning
authority other than Seller, including, without limitation, the filing of any notice of intended
condemnation or proceedings in the nature of eminent domain, commenced by any governmental
authority, other than Seller, Seller shall immediately give Buyer Notice of such occurrence, and
Buyer shall have the option, exercisable within ten (10) Business Days after receipt of such Notice
from Seller, to either: (i) terminate this Agreement or (ii) continue with this Agreement in
accordance with its terms, in which event Seller shall assign to Buyer any right of Seller to receive
any condemnation award attributable to the Property.
5. REMEDIES AND INDEMNITY
5.1 BUYER'S RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON
RECOVERY OF DAMAGES.
5.1.1 ELECTION OF REMEDIES. DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT BY SELLER UNDER THIS AGREEMENT PRIOR TO THE
CLOSING, BUYER SHALL BE LIMITED TO EITHER OF THE FOLLOWING REMEDIES:
(1) AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE OF THIS
AGREEMENT; OR (2) TERMINATION OF THIS AGREEMENT AND AN ACTION TO
RECOVER THE DEPOSIT. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO
BUYER UNDER THIS AGREEMENT FOR ANY AMOUNT EXCEEDING THE AMOUNT SET
FORTH IN THIS SECTION 5.1.1, ANY SPECULATIVE, CONSEQUENTIAL,
COLLATERAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OR FOR ANY LOSS OF
PROFITS SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED BY BUYER.
5.1.2 WAIVER OF RIGHTS. SELLER AND BUYER EACH
ACKNOWLEDGE AND AGREE THAT SELLER WOULD NOT HAVE ENTERED INTO
THIS AGREEMENT IF SELLER WERE TO BE LIABLE TO BUYER FOR ANY
MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT UNDER THIS AGREEMENT BY SEI .i .RR,
OTHER THAN SPECIFIC PERFORMANCE OF THIS AGREEMENT OR TERMINATION
OF THIS AGREEMENT AND PAYMENT OF THE AMOUNT SPECIFIED IN CLAUSE "(2)"
OF SECTION 5.1.1 OF THIS AGREEMENT. ACCORDINGLY, SELLER AND BUYER
AGREE THAT THE REMEDIES SPECIFICALLY PROVIDED FOR IN SECTION 5.1.1 OF
THIS AGREEMENT ARE REASONABLE AND SHALL BE BUYER'S SOLE AND
EXCLUSIVE RIGHTS AND REMEDIES DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT UNDER THIS AGREEMENT BY SELLER BUYER WAIVES ANY RIGHT TO
PURSUE ANY REMEDY OR DAMAGES AGAINST SELLER ARISING FROM OR
RELATING TO THIS AGREEMENT OTHER THAN THOSE SPECIFICALLY PROVIDED
IN SECTION 5.1.1 OF THIS AGREEMENT.
Palm Plaza Purchase & Sale Agreement v2
Page 21 of 30
Attachment No. 4
5.1.3 CALIFORNIA CIVIL CODE SECTION 1542 WAIVER. BUYER
ACKNOWLEDGES THE PROTECTIONS OF CALIFORNIA CIVIL CODE SECTION 1542
REGARDING THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 5.1,
WHICH CIVIL CODE SECTION READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TPME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
5.1.4 ACKNOWLEDGMENT. BY INITIALING BELOW, BUYER
KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542 AND ALL OTI IER STATUTES AND JUDICIAL DECISIONS
(WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT SOLELY REGARDING THE
WAIVERS AND RELEASES CONT • I DIN THIS SECTION,5.1.
Initia` jr'zed
Buyer re .: ntative(s)
5.1.5 STATEMENT OF INTENT. CALIFORNIA CIVIL CODE SECTION 1542
NOTWITHSTANDING, IT IS THE INTENTION OF BUYER TO BE BOUND BY THE
LIMITATIONS ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 5.1, AND
BUYER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST SELLER FOR
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE
RELIEF RELATED TO ANY EVENT OF DEFAULT UNDER THIS AGREEMENT BY
SELLER, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.1, WHETHER OR
NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO BUYER AS
OF THE EFFECTIVE DATE OF THIS AGREEMENT.
5.2 LIQUIDATED DAMAGES TO SELLER IF THE CLOSE OF ESCROW DOES NOT
OCCUR ON OR BEFORE THE ESCROW CLOSING DATE DUE TO BUYER'S DEFAULT,
THEN SELLFR SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE
AMOUNT OF THE DEPOSIT IS THE REASONABLE ESTIMATE BY THE PARTIES OF
THE DAMAGES SELLER WOULD SUFFER FROM SUCH DEFAULT, IT BEING AGREED
THAT IT IS EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE AND IMPRACTICABLE, TO
FIX THE EXACT AMOUNT OF DAMAGE THAT WOULD BE INCURRED BY SELLER
AS A RESULT OF SUCH DEFAULT BY BUYER UPON SUCH A DEFAULT BY BUYER,
ESCROW SHALL BE CANCELED AND THE PARTIES SHALL PROCEED IN
ACCORDANCE WITH SECTION 4.12 OF THIS AGREEMENT. IN ADDITION, IF ALL OR
ANY PORTION OF THE DEPOSIT HAS BEEN DEPOSITED INTO ESCROW BY BUYER,
ESCROW AGENT IS HEREBY IRREVOCABLY LN STRUCTED BY BUYER AND SELLER TO
DISBURSE THE DEPOSIT TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S
Page 22 of 30
Palm Plena Purchase & Sale Agreement v2
Attachment No. 4
DEFAULT UNDER THIS AGREEMENT AND FAILURE TO COMPLETE THE
PURCHASE OF THE PREMISES, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS
1671, ET. SEQ.
5.3 Legal Actions. Either Party may institute legal action, at law or in equity, to
enforce or interpret the rights or obligations of the Parties under this Agreement or recover
damages, subject to the provisions of Section 5.1 or Section 5.2 of this Agreement, as applicable.
5.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and
the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by such Party, at the same or different times, of any other rights or remedies for the
same Default or the same rights nr remedies for any other Default by the of cr Party.
5.5 Indemnification.
5.5.1 Buyer Indemnification. Buyer shall Indemnify the Seller Parties against
any Claim related to this Agreement to the extent such Claim arises from: (a) any act, omission or
negligence of the Buyer; (b) any agreements that Buyer (or anyone claiming by or through Buyer)
makes with a Third Person regarding the property; (c) any worker's compensation claim or
determination relating to any employee of Buyer or its contractors; or (d) any Environmental Claim
attributable to any action or omission of Buyer.
5.5.2 Independent of Insurance Obligations. Buyer's indemnification
obligations under this Agreement shall not be construed or interpreted as in any way restricting,
limiting, or modifying Buyer's insurance or other obligations under this Agreement. Buyer's
obligation to Indemnify the Seller Parties under this Agreement is independent of Buyer's
insurance and other obligations under this Agreement. Buyer's compliance with Buyer's insurance
obligations and other obligations under this Agreement shall not in any way restrict, limit or modify
Buyer's indemnification obligations under this Agreement and are independent of Buyer's
indemnification and other obligations under this Agreement.
5.5.3 Survival of Indemnification and Defense Obligations. The indemnity
and defense obligations of the Buyer under this Agreement shall survive the expiration or earlier
termination of this Agreement.
5.5.4 Indemnification Procedures. Wherever this Agreement requires any
lndemnitor to Indemnify any Indemnitee:
(a) Prompt Notice. The Indemnitee shall promptly Notify the
Indemnitor of any Claim.
(b) Selection of Counsel. The Indemnitor shall select counsel reasonably
acceptable to Indemnitee. If the Indemnitec, in good faith, determines that its interests are not
adequately protected by being provided a defense by the Indemnitor, the Indemnitee (and the
other Indemnified parties) may, at its election, conduct the defense or participate in the defense
of any Claim related in any way to this indemnification. If the Indemnitee, on behalf of the
Palm Plaza Purchase & Sale Agreement v2
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Attachment No. 4
Indemnified parties, makes the foregoing election to conduct its own defense or obtain
independent legal counsel in defense of any Claim related to this indemnification, then the
Indemnitor shall pay all of the Legal Costs related thereto, including, without limitation,
reasonable attorneys' fees and costs.
(c) Cooperation. The Indemnitee shall reasonably cooperate with
the Indemnitor's defense of the Indemnitee.
(d) Settlement. The Indemnitor may only settle a Claim with the
consent of the Indemnitee. Any settlement shall procure a complete release of the Indemnitee
from the subject Claims, shall not require the Indemnitee to make any payment to the claimant
and shall provide that neither the Indemnitee, nor the Indemnitor on behalf of the Indemnitee,
admits any liability.
6. GENERAL PROVISIONS
6.1 Incorporation of Recitals. The Recitals of fact set forth preceding this
Agreement are true and correct and are incorporated into this Agreement in their entirety by
this reference.
6.2 Notices, Demands and Communications Between the Parties.
6.2.1 Delivery. Any and all Notices submitted by any Party to another Party
pursuant to or as required by this Agreement shall be proper, if in writing and sent by messenger
for immediate personal delivery, nationally recognized overnight (one Business Day) delivery
service (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United States
mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated
below in Section 6.2.2, Notice may be sent in the same manner to such other addresses as either
Party may from time to time designate by Notice in accordance with this Section 62. Notice shall be
deemed received by the addressee, regardless of whether or when any return receipt is received by
the sender or the date set forth on such return receipt, on the day that the Notice is sent by messenger
for immediate personal delivery, one Business Day after delivery to a nationally recognized
overnight delivery service or three (3) calendar days after the Notice is placed in the United
States mail in accordance with this Section 6.2. Any attorney representing a Party may give any
Notice on behalf of such Party.
6.2.2 Addresses. The Notice addresses for the Parties, as of the Effective Date
of this Agreement, are as follows:
To Buyer:
To Seller:
Palm Plaza Associates, LLC
Attn: Jim Reynolds
4980 North Harbor Drive, Suite 203
San Diego, California 92106
City of National City
1243 National City Boulevard
National City, California 91950
Page 24 of 30
Palm Plaza Purchase & Sale Agreement v2
Attachment No. 4
Attention: City Manager
With a Copy to: Claudia Silva, City Attorney
City of National City
1243 National City Boulevard
National City, California 91950
6.3 Relationship of Parties. The Parties each intend and agree that Seller and Buyer
are independent contracting entities and do not intend by this Agreement to create any
partnership, joint venture or similar business arrangement, relationship or association between
them.
6 4 Warranty Against Payment of Consideration for Agreement. Buyer represents
and warrants to Seller that: (a) Buyer has not employed or retained any Person to solicit or
secure this Agreement upon an agreement or understanding for a commission, percentage,
brokerage or contingent fee, excepting bona fide employees of Buyer and Third Persons to
whom fees are paid for professional services related to the documentation of this Agreement;
and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given
by Buyer or any of Buyer's agents, employees or representatives to any elected or appointed
official or employee of the Seller in an attempt to secure this Agreement or favorable terms or
conditions for this Agreement. Breach of the representations or warranties of this Section 6.4
shall entitle Seller to terminate this Agreement and cancel the Escrow (if open) upon seven (7)
calendar days Notice to Buyer and, if the Escrow is open, to Escrow Agent. Upon any such
termination of this Agreement, Buyer shall immediately refund any payments made to or on
behalf of Buyer to Seller pursuant to this Agreement or otherwise related to the Property, any
Approval or any CEQA Document, prior to the date of such termination.
6.5 Calculation of Time Periods. Unless otherwise specified, all references to time
periods in this Agreement measured in days shall be to consecutive calendar days, all references
to time periods in this Agreement measured in months shall be to consecutive calendar months
and all references to time periods in this Agreement measured in years shall be to consecutive
calendar years. Any reference to Business Days in this Agreement shall mean consecutive
Business Days.
6.6 Principles of Interpretation. No inference in favor of or against any Party shall
be drawn from the fact that such Party has drafted any part of this Agreement. The Parties
have both participated substantially in the negotiation, drafting and revision of this Agreement,
with advice from legal or other counsel and advisers of their own selection. A word, term or
phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all
in accordance with ordinary principles of English grammar, which shall govern all language
in this Agreement. The words "include" and "including" in this Agreement shall be construed
to be followed by the words "without Iimitation". Each collective noun in this Agreement shall
be interpreted as if followed by the words "(or any part of it)", except where the context clearly
requires otherwise. Every reference to any document, including this Agreement, refers to such
document, as modified from time to time (excepting any modification that violates this
Agreement), and includes all exhibits, schedules, addenda and riders to such document. Every
reference to a law, statute, regulation, order, form or similar governmental requirement refers
Palm Plaza Purchase & Sale Agreement v2
Page 25 of 30
Attachment No. 4
to each such requirement as amended; modified, renumbered, superseded or quepppded, from
time to time.
6.7 Governing Law. The procedural and substantive laws of the State shall govern
the interpretation and enforcement of this Agreement, without application of conflicts or choice of
laws principles or statutes. The Parties acknowledge and agree that this Agreement is entered
into, is to be fully performed in and relates to real property located in the County of San Diego,
State of California. All legal actions arising from this Agreement shall be filed in the Superior
Court of the State in and for the County or in the United States District Court with jurisdiction in
the County.
6.8 Unavoidable Delay; Extension of Time of Performance.
6.8.1 Notice. Subject to any specific provisions of this Agreement stating that
they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of an
Unavoidable Delay, performance by either Party under this Agreement shall not be deemed or
considered to be in Default, where any such Default is due to the occurrence of an Unavoidable
Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (a) within three
(3) calendar days after such Party knows of any such Unavoidable Delay; and (b) within three
(3) calendar days after such Unavoidable Delay ceases to exist. To be effective, any Notice of
an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The Party
claiming an extension of time to perform due to an Unavoidable Delay shall exercise
commercially reasonable efforts to cure the condition causing the Unavoidable Delay, within
a reasonable time. The extension of time for performance under this Agreement resulting from
the occurrence of an Unavoidable Delay shall commence on the date of occurrence of the
condition causing the Unavoidable Delay and shall, except for a legal action described in
Section 6.12 of this Agreement, in no event be longer than ninety (90) calendar days after
written Notice is received by a Party from the other Party of the occurrence of such an
Unavoidable Delay.
6.8.2 Assumption of Economic Risks. EACH PARTY EXPRESSLY
AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER
PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN
MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC
ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR
ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY
THE PERFORMANCE OF EACH AND EVERY ONE OF EACH PARTY'S
OBLIGATIONS AND COVENANTS ARISING UNDER THIS AGREEMENT.
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE
PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN
ECONOMIC CIRCUMSTANCES OR MARKET DEMAND OR CONDITIONS AND
WAIVE, TO THE GREATEST EXTENT ALLOWED BY LAW, ANY DEFENSE, CLAIM,
OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY,
IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUS IRATION
OF PURPOSE, OR SIMILAR THEORIES. THE PARTIES AGREE THAT ADVERSE
CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY
OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR
Palm Plaza Purchase & Sale Agreement v2
Page 26 of 30
Attachment No. 4
DEMANDS, SHALL NOT OPERATE_. TO EXCUSE OR DELAY THE STRICT
OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS,
CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES
EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET
CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE FECT . DA lb.
Initials of Authorized Initials of Bit'
Seller Representative(s)
6.9 Tax Consequences. Buyer acknowledges and agrees that Buyer shall bear any
and all responsibility, liability, costs or expenses connected in any way with any tax
consequences experienced by Buyer related to this Agreement.
6.10 Real Estate Commissions.
6.10.1 Seller Warranty. Seller: (a) represents and warrants that Seller did not
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Seller; and (b) shall Indemnify Buyer against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.1.
6.10.2 Buyer Warranty. Buyer: (a) represents and warrants that Buyer did not
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Buyer; and (b) shalI Indemnify Seller against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.2.
6.11 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied,
is intended to confer any rights or remedies under or by reason of this Agreement on any Person
other than the Parties and their respective permitted successors and assigns, nor is anything in
this Agreement intended to relieve or discharge any obligation of any Third Person to any Party
or give any Third Person any right of subrogation or action over or against any Party.
6.12 Buyer Assumption of Risks of Legal Challenges. Buyer assumes the risk of
delays or damages that may result to Buyer from each and every Third Person legal action
related to Seller's approval of this Agreement or any associated Approvals, even in the event
that an error, omission or abuse of discretion by Seller is determined to have occurred. If a
Third Person files a legal action regarding Seller's approval of this Agreement or any
associated Approvals (exclusive of legal actions alleging violation of Government Code
Section 1090 by officials of Seller), Buyer shall have the option to either: (a) cancel the Escrow
and terminate this Agreement, in which case the Parties and the Escrow Agent shall proceed
in accordance with Section 4.13 of this Agreement; or (b) Indemnify Seller against such Third
Person legal action, including all Legal Costs, monetary awards, sanctions and the expenses of
any and all financial or performance obligations resulting from the disposition of the legal
action; provided, however, that option "(a)" under this Section 6.12 shall only be available to
Buyer prior to the Close of Escrow. Should Buyer fail to Notify Seller of Buyer's election
Page 27 of 30
Palm Plaza Purchase & Sale Agreement v2
Attachment No. 4
pursuant to this Section 6.12 at least fifteen (15) calendar days before response to the legal
action is required by Seller, prior to the Close of Escrow, Buyer shall be deemed to have elected
to cancel the Escrow and terminate this Agreement pursuant to this Section 6.12 and, following
the Close of Escrow, Buyer shall be deemed to have elected to Indemnify Seller against such
Third Person legal action pursuant to this Section 6.12, all without further Notice to or action
by either Party. Seller shall reasonably cooperate with Buyer in defense of Seller in any legal
action subject to this Section 6.12, subject to Buyer completely performing Buyer's indemnity
obligations for such legal action. Should Buyer elect or be deemed to elect to Indemnify Seller
regarding a legal action subject to this Section 6.12, but fail to or stop providing such
indemnification of Seller, then Seller shall have the right to terminate this Agreement or cancel
the Escrow (or both) by Notice to Buyer and, if the Escrow is open, to the Escrow Agent.
Nothing contained in this Section 6.12 is intended to be nor shall be deemed or construed to
be an express or implied admission that Seller may be liable to Buyer or any Person for
damages or other relief regarding an alleged or established failure of Seller to comply with the
law. Any legal action that is subject to this Section 6.12 (including any appeal periods and the
pendency of any appeals) shall constitute an Unavoidable Delay and the time periods for
performance by either Party under this Agreement may be extended pursuant to the provisions
of this Agreement regarding Unavoidable Delay.
6.13 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
6.14 Time Declared to be of the Essence. As to the performance of any obligation
under this Agreement of which time is a component, the performance of such obligation within
the time specified is of the essence.
6.15 Entire Agreement. This Agreement integrates all of the terms and conditions
mentioned in this Agreement or incidental to this Agreement, and supersedes all prior or
contemporaneous negotiations or previous agreements between the Parties, whether written or
oral, with respect to all or any portion of the Property.
6.16 Waivers and Amendments. All waivers of the provisions of this Agreement
must be in writing and signed by the authorized representative(s) of the Party making the
waiver. All amendments to this Agreement must be in writing and signed by the authorized
representative(s) of both Seller and Buyer.
6.17 No Implied Waiver. Failure to insist on any one occasion upon strict compliance
with any term, covenant, condition, restriction or agreement contained in this Agreement shall
not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall
any waiver or relinquishment of any rights or powers under this Agreement, at any one time
or more times, be deemed a waiver or relinquishment of such right or power at any other time
or times.
6.18 City Manager Implementation. Seller shall implement this Agreement through
the City Manager, acting on behalf of the Seller. The City Manager or his/her designee is
hereby authorized by Seller to enter into agreements and sign documents referenced in this
Page 28 of 30
Palm Plaza Purchase & Sale Agreement v2
Attachment No. 4
Agreement or reasonably required to implement this Agreement on behalf of Seller, to issue
approvals, interpretations or waivers, and to enter into certain amendments to this Agreement
on behalf of Seller, to the extent that any such action(s) does/do not increase the monetary
obligations of Seller. All other actions shall require the consideration and approval of the
Seller's governing body, unless expressly provided otherwise by action of the Seller's
governing body. Nothing in this Section 6.18 shall restrict the submission to the Seller's
governing body of any matter within the City Manager's authority under this Section 6.18, in
the City Manager's sole and absolute discretion, to obtain the Seller's governing body's
express and specific authorization on such matter. The specific intent of this Section 6.18 is
to authorize certain actions on behalf of Seller by the City Manager, but not to require that such
actions be taken by the City Manager including, without limitation, any extension(s) granted
pursuant to Section 4.9 of this Agreement, without consideration by Seller's governing body.
6.19 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
completely resolved between the Parties, either by written settlement, entry of a non -appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions of
this Agreement relating to dispute resolution, indemnity or limitations on damages or remedies
shall survive any expiration or termination of this Agreement.
6.20 Counterparts. This Agreement shall be signed in three (3) triplicate originals,
each of which is deemed to be an original.
6.21 Facsimile or Electronic Signatures. Signatures delivered by facsimile or
electronic mail shall be binding as originals upon the Party so signing and delivering; provided,
however, that original signature(s) of each Party shall be required for each document to be
recorded.
[Signatures on following page]
SIGNATURE PAGE
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
Page 29 of 30
Palm Playa Purchase & Sale Agreement v2
Attachment No. 4
IN WITNESS WHEREOF, the Parties have signed and entered into this Agreement by and
through the signatures of their respective authorized representative(s) as follows:
"SELLER"
"BUYER"
CITY OF NATIONAL CITY, a California PALM PLAZA ASSOCIATES, LLC, a
municipal corporation California limited liability company
*see notes below
By:
Name:
Title: City Manager
ATTEST:
By:
Name:
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Claudia Gacitua Silva
Title: City Attorney
KANE, BALLMER & BERKMAN
By:
Name:
Title: Special Counsel
Palm Plaza Purchase & Sale Agreement v2
By:
Name: V tk44 M . t .t Lt...
Title: fltQr 446PiN Gr- µett$62._
By:
Name:
Title:
P,-1
- A. - a_ -
*Notes: This document must be executed by the
Corporation's Chief Executive Officer,
President or Vice -President, on the one hand,
and the Corporations' Chief Financial Officer,
Treasurer, Assistant Treasurer or Secretary on
the other hand.
Page 30 of 30
Attachment No. 4
EXHIBIT "A"
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Property Legal Description
The land referred to herein is situated in the State of California, County of San Diego and
described as follows:
Parcel 1 of Parcel Map No. 13257 in the City of National City, filed in the Office of the
County Recorder of San Diego County, May 8, 1894 as File No. 84-170925 of Official
Records.
APN: 557-410-20
EXHIBIT A
Attachment No. 4
EXHIBIT "B"
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Grant Deed
[behind this page]
Attachment No. 4
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of National City
1243 National City Boulevard
National City, California 91950
Attn: City Manager
MAIL TAX STATEMENTS TO:
PALM PLAZA ASSOCIATES, LLC,
a California limited liability company
Attn: Juan -Pablo Mariscal
3790 Via de la Valle, Suite 311
Del Mar, California 92014
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Assessor's Parcel No. 557-410-20
OFFICIAL BUSINESS
Document Exempt from Recording Fees
Per Government Code §§ 6103 & 27383
DOCUMENTARY TRANSFER TAX $
Computed on the consideration or value of property conveyed; OR
Computed on the consideration or value of property conveyed less liens or encumbrances
remaining at time of sale.
Signature of Declarant or Agent determining tax
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
CITY OF NATIONAL CITY, a California municipal corporation, herein called "Grantor",
hereby grants to PALM PLAZA ASSOCIATES, LLC, a California limited liability company,
herein called "Grantee", all right, title and interest of Grantor in that certain real property in the
City of National City, County of San Diego, State of California, specifically described in Exhibit
"A" attached hereto ("Property") and incorporated herein by this reference, subject to the existing
easements, restrictions and covenants of record and consistent with the obligations of the Grantee
under the Purchase Agreement (defined below).
Whenever the term "Grantee" is used in this Grant Deed, such term shall include any and
all successors, assigns, and heirs of Grantee in and to the Property, or any interest therein or any
portion thereof.
Page 1 of 6
Palm Plaza City Grant Deed NI
Attachment No. 4
1. Conveyance in Accordance With Purchase Agreement. The Property is
conveyed pursuant to that certain Real Property Purchase and Sale Agreement and Joint Escrow
Instructions dated , 20_ and entered into by and between Grantor ("Seller"
therein) and Grantee ("Buyer" therein) ("Purchase Agreement"), a copy of which is on file in the
offices of the City Clerk of Grantor as a public record and which is incorporated herein by
reference. Purchase Agreement as used herein shall mean, refer to and include the Purchase
Agreement, as well as any riders, exhibits, addenda, implementation agreements, amendments,
modifications, supplements and attachments thereto or other documents expressly incorporated by
reference in the Purchase Agreement. Any capitalized term not herein defined shall have the same
meaning ascribed to such term in the Purchase Agreement. All of the terms, covenants and
conditions of this Grant Deed shall be binding upon the Grantee and the permitted successors and
assigns of the Grantee.
2. Nondiscrimination. The Grantee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure, or enjoyment of the Property, nor shall the Grantee itself or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or vendees of the Property. The foregoing covenants
shall run with the land.
All deeds, leases or contracts made relative to the Property, improvements thereon,
or any part thereof, shall contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
(a) (1) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein
conveyed, nor shall the grantee or any person claiming under or through him or her, establish or
permit any practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the
premises herein conveyed. The foregoing covenants shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall
be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating
to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code
Page 2 of 6
Palm Plaza City Grant Deed vl
Attachment No. 4
and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the
above paragraph.
(b) (1) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions: That there shall be no discrimination against or segregation of any person or group of
persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing,
subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor
shall the lessee himself or herself, or any person claiming under or through him or her, establish
or permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees in the premises herein leased."
(2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall
be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating
to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code
and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the
above paragraph.
(c) In contracts: "There shall be no discrimination against or segregation of
any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property,
nor shall the grantee or transferee itself or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants,
or vendees of the Property."
3. Violations Do Not Impair Liens. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or
render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security
interest made in good faith and for value as to the Property, whether or not said mortgage or deed
of trust is subordinated to this Grant Deed; provided, however, that any subsequent owner of the
Property, or any interest therein or any portion thereof, shall be bound by such remaining
covenants, conditions, restrictions, limitations and provisions, whether such owner's title was
acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
4. Covenants Run With Land. All covenants contained in this Grant Deed shall be
covenants running with the land. All of the Grantee's obligations and covenants hereunder shall
remain in effect in perpetuity.
Page 3 of 6
Palm Plaza City Grant Deed vl
Attachment No. 4
5. Covenants For Benefit of Grantor. All covenants without regard to technical
classification or designation, legal or otherwise, shall be, to the fullest extent permitted by law and
equity, binding for the benefit of the Grantor and its successors and assigns, and such covenants
shall run in favor of, and be enforceable by, the Grantor and its successors and assigns, against
Grantee, its successors and assigns, to or of the Property conveyed herein or any portion thereof
or any interest therein, and any party in possession or occupancy of the Property or portion thereof,
for the entire period during which such covenants shall be in force and effect, without regard to
whether the Grantor is or remains an owner of any land or interest therein to which such covenants
relate. The Grantor and its successors and assigns, in the event of any breach of any such
covenants, shall have the right to exercise all the rights and remedies and to maintain any actions
at law or suits in equity or other proper proceedings to enforce the curing of such breach.
[Signatures On Next Page]
Page 4 of 6
Palm Plaza City Grant Deed v 1
Attachment No. 4
IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers hereunto duly authorized this day of
, 2016.
"GRANTOR"
"SELLER"
CITY OF NATIONAL CITY, a California
municipal corporation
By:
Name:
Title: City Manager
ATTEST:
By:
Name:
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Claudia Gacitua Silva
Title: City Attorney
[Signatures Continue On Next Page]
Page 5 of 6
Palm Plaza City Grant Deed vl
Attachment No. 4
CERTIFICATE OF ACCEPTANCE OF GRANT DEED
This is to certify that the interest in real property conveyed by the CITY OF NATIONAL
CITY to PALM PLAZA ASSOCIATES, LLC, a California limited liability company, is hereby
accepted by the undersigned officer on behalf of Grantee, through his or her signature below,
subject to all of the matters hereinbefore set forth, and Grantee consents to recordation thereof by
its duly authorized officer.
"GRANTEE"
*see notes below
PALM PLAZA ASSOCIATES, LLC,
a California limited liability company
Dated: By:
Name:
Title:
Dated: By:
Name:
Title:
*Notes: This document must be executed by the Corporation's Chief Executive Officer, President
or Vice -President, on the one hand, and the Corporations' Chief Financial Officer, Treasurer,
Assistant Treasurer or Secretary on the other hand.
Page 6 of 6
Palm Plaza City Grant Deed vl
Attachment No. 4
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
) SS.
COUNTY OF SAN DIEGO
On , before me,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
OPTIONAL
Description of Attached Document
Title or Type of Documents: Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed By Signer(s)
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Attachment No. 4
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
) SS.
COUNTY OF SAN DIEGO
On , before me,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
OPTIONAL
Description of Attached Document
Title or Type of Documents: Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed By Signer(s)
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Attachment No. 4
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On , before me,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
OPTIONAL
Description of Attached Document
Title or Type of Documents: Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed By Signer(s)
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Attachment No. 4
EXHIBIT "A"
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of San Diego and
described as follows:
Parcel 1 of Parcel Map No. 13257 in the City of National City, filed in the Office of the County
Recorder of San Diego County, May 8, 1894 as File No. 84-170925 of Official Records.
APN: 557-410-20
Exhibit A
RESOLUTION NO. 2016 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
ACCEPTING THE FINDINGS MADE IN THE SUMMARY REPORT PURSUANT
TO CALIFORNIA GENERAL CODE SECTION 52201 PERTAINING TO THE SALE OF A
1.07-ACRE PARCEL OF VACANT LAND LOCATED AT 1640 EAST PLAZA BOULEVARD
IN NATIONAL CITY TO PALM PLAZA ASSOCIATES, LLC, AND APPROVING
A REAL PROPERTY PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS FOR SAID VACANT LAND
WHEREAS, the Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property generally
located at 1640 East Plaza Blvd. (Assessor's Parcel No. 557-410-20) within the City of National
City, County of San Diego, State of California ("Property"); and
WHEREAS, pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and pursuant
to California Health and Safety Code Section 34173, the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency ("Successor Agency")
became the successor agency and successor -in -interest to the Redevelopment Agency,
confirmed by Resolution No. 2012-15 adopted on January 10, 2012, by the City Council of the
City of National City ("City"); and
WHEREAS, in accordance with California Health and Safety Code Section
34191.5, the Property was listed on Successor Agency's Revised Long Range Property
Management Plan ("Revised LRPMP"), which provides that the Property is to be sold at fair
market value, and the Revised LRPMP has been approved by the Oversight Board of the
Successor Agency ("Oversight Board") and the California Department of Finance ("DOF"); and
WHEREAS, at its regular meeting on May 17, 2016, the City of National City met and
pursuant to Resolution No. 2016-70 accepted the transfer of the Property, among other properties, from
the Successor Agency to the City in accordance with the LRPMP; and
WHEREAS, at its regular meeting on May 17, 2016, the Successor Agency met and
pursuant to Resolution No. 2016-77 approved the transfer of the Property, among other properties, from
the Successor Agency to the City in accordance with the Revised LRPMP; and
WHEREAS, in accordance with the DOF-approved Revised LRPMP, the net
proceeds from the sale of the Property pursuant to the proposed Agreement will be distributed
as property tax to each taxing entity in an amount proportionate to its share of property tax
revenues; and
WHEREAS, Palm Plaza Associates, LLC ("Buyer") has made an offer to
purchase the Property from City at the Property's current "as is" fair market value of $870,000,
and Successor Agency desires to sell the Property to Buyer pursuant to the terms and
conditions of a proposed Real Property Purchase and Sale Agreement and Joint Escrow
Instructions ("Agreement"). A copy of the proposed Agreement has been provided to the City;
and
WHEREAS, at its regular meeting on August 16, 2016, the City met and held a
public hearing in accordance with Section 52201 of the California Government Code to discuss
Resolution No. 2016 —
Page Two
August 16, 2016
and consider the findings of a Summary Report and to also consider approving the Agreement
and the sale of the Property as provided in the Agreement; and
WHEREAS, a public notice was published in a newspaper of general circulation
on August 1, 2016 and August 8, 2016 providing notification of the public hearing of the City on
August 16, 2016 in compliance with the requirements of Section 52201 of the California
Government Code; and
WHEREAS, approval of the property transfer is not a "Project" under section
15378 of the California Environmental Quality Act ("CEQA") guidelines because the proposed
action consists of administrative activity that will not result in direct or indirect physical changes
to the environment and, as such, pursuant to section 15061(b)(5) of the CEQA Guidelines is not
subject to CEQA; and, the underlying project is exempt from CEQA for two reasons: 1) it
requires only ministerial approval by the City (Public Resources Code section 21080(b)(1) and
Guidelines 15268), and 2) it is an urban infill project (Guidelines section 15332).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City
as follows:
SECTION 1. The Recitals set forth above are true and correct and are incorporated
into this Resolution by reference.
SECTION 2. The City finds, based on facts contained in the Summary Report prepared
pursuant to Section 52201 of the California Government Code, the property will assist in the
creation of economic opportunity and that consideration for the Property is not less than fair
market value at its highest and best use; and the City accepts the findings of the Summary
Report.
SECTION 3. The City hereby approves of the terms of the Agreement.
SECTION 4. The City hereby approves of, and directs the sale and conveyance of the
Property from the City to the Buyer in accordance with the terms and conditions set forth in the
Agreement.
SECTION 5. The City hereby approves the Agreement and authorizes the Mayor to
execute the Agreement; and delegates to the City Manager or her designee authority to execute
any other documents necessary to carry out the sale of the Property, and to take all actions and
sign any and all documents necessary to implement and effectuate the Agreement and the
actions approved by this Resolution as determined necessary by the City Manager, or her
designee, to execute all documents on behalf of the City (including, without limitation, a grant
deed), and to administer the City's obligations, responsibilities and duties to be performed
pursuant to this Resolution and the Agreement.
SECTION 6. If any provision of this Resolution or the application of any such provision
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications of this Resolution that can be given effect without the invalid provision or
Resolution No. 2016 —
Page Three
August 16, 2016
application, and to this end, the provisions of this Resolution are severable. The City declares
that it would have adopted this Resolution irrespective of the invalidity of any particular portion
of this Resolution.
PASSED and ADOPTED this 16th day of August, 2016.
Ron Morrison, Mayor
ATTEST:
Michael R. Dalla, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
`40bnngi„.... ymtnps\
CITY OF NATIONAL CITY
Office of the City Clerk
1243 National City Blvd., National City, California 91950-4397
619-336-4228
Michael R. Dalla, CMC - City Clerk
PALM PLAZA ASSOCIATES, LLC
Purchase & Sale Agreement
1640 E. Plaza Blvd.
Carlos Aguirre (Housing & Economic Development) Forwarded
Copy of Agreement to Palm Plaza Associates, LLC.