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HomeMy WebLinkAbout2018 CON Betty Winona McLintock Revocable Trust - "A" AvenueREAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS A Avenue, National City, CA This REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is dated as of November 20, 2018, and is entered into by and between the CITY OF NATIONAL CITY, a California municipal corporation ("City" or "Seller"), and the Betty Winona McLintock Revocable Trust ("Buyer"). RECITALS WHEREAS, Seller owns the fee interest in that certain real property generally located along "A" Avenue, National City, California 91950, legally described and depicted in Exhibit A attached hereto and made a part hereof ("Property"). WHEREAS, Seller desires to cause the sale, assignment and transfer of its interest in and to the Property to Purchaser on the Closing Date (as hereinafter defined), in accordance with the terms and provisions of this Agreement, and Purchaser desires to purchase the Property from Seller on the Closing Date, upon the terms more particularly set forth in this Agreement; AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and 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 Agreement. This Real Property Purchase and Sale Agreement and Joint Escrow Instructions by and between Seller and Buyer, including all of the attached Exhibits. 1.1.2 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. 1.1.3 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. 1.1.4 Bankruptcy Proceeding. Any proceeding, whether voluntary or involuntary, under any Bankruptcy Law. 1.1.5 Business Day. Any weekday on which the Seller is open to conduct regular governmental functions. 1.1.6 Buyer. Betty Winona McLintock Revocable Trust, and any permitted assignee of or successor to the rights, powers, or responsibilities of Buyer under this Agreement. 1.1.7 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. 1.1.8 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. 1.1.9 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 to CEQA, to issue any discretionary Approval required to approve this Agreement. 1.1.10 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. 1.1.11 City Manager. The City Manager of Seller or her designee or successor in function. 1.1.12 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. 1.1.13 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. 1.1.14 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 Interests, by contract or otherwise. Default. 1.1.15 County. The County of San Diego, California. 1.1.16 Default. An Escrow Default, a Monetary Default, or a Non -Monetary 1.1.17 Default Interest. Interest at an annual rate equal to the lesser of (a) eight Page 1 of 29 A Avenue Purchase & Sale Agreement percent (8%) per annum; or (b) the Usury Limit. 1.1.18 Deposit. Four hundred and No/100 Dollars ($400.00). 1.1.19 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. 1.1.20 Due Diligence Period. The period of time commencing upon the Effective Date and expiring thirty (30) days thereafter. 1.1.21 Effective Date. Defined in Section 2 of this Agreement. 1.1.22 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 etseq.]; 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 § 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. Page 2 of 29 A Avenue Purchase & Sale Agreement 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 sixty (60) days following the Effective 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. 1.1.29 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 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) Page 3 of 29 A Avenue Purchase & Sale Agreement 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 "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 Page 4 of 29 A Avenue Purchase & Sale Agreement 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 Property, 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 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 Page 5 of 29 A Avenue Purchase & Sale Agreement 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. 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 Property. That certain real property specifically described in Exhibit "A" attached to this Agreement and incorporated herein by this reference. 1.1.58 Purchase Price. Four Thousand and No/100 Dollars ($4,000.00), which is the fair market value of the Property as of April 16, 2016, pursuant to that certain appraisal report conducted by George Hatch of George Hatch Appraisals. 1.1.59 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 Page 6 of 29 A Avenue Purchase & Sale Agreement 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. 1.1.60 Seller Parties. Collectively, the Seller, the Seller's goveming body, and the Seller's elected officials, employees, agents and attorneys. 1.1.61 State. The State of California. 1.1.62 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. 1.1.63 Title Company. Stewart Title of California, Inc., or such other Person mutually agreed upon in writing by both Seller and Buyer. 1.1.64 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 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 `PTransfef' 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 atax-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. 1.1.65 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. 1.1.66 Usury Limit. The highest rate of interest, if any, that Law allows under the circumstances. 2. EFFECTIVE 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 Page 7 of 29 A Avenue Purchase & Sale Agreement body and executed by Seller's City Manager. 3. PURCHASE AND SALE OF PROPERTY 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 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 expressly 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. 3.3 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 Page 8 of 29 A Avenue Purchase & Sale Agreement 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 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, which will insure the City and its officers, members, employees and agents 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. 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. Page 9 of 29 A Avenue Purchase & Sale 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 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. Page 10 of 29 A Avenue Purchase & Sale Agreement 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 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 Property 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 Property 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. Page 11 of 29 A Avenue Purchase & Sale Agreement 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 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 Property 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 Property 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, Page 12 of 29 A Avenue Purchase & Sale Agreement 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 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 Page 13 of 29 A Avenue Purchase & Sale Agreement following conditions precedent on or before the Escrow Closing Date: 4.5.1 CEQA Documents. Adoption, approval or certification of the CEQA Documents by each applicable Government; 4.5.2 Buyer Escrow Deposits. Buyer deposits all of the items into Escrow required by Section 4.6 of this Agreement; 4.5.3 Settlement/Closing Statement. Seller reasonably approves Seller's Escrow Closing Statement; and 4.5.4 Title Policy. The Company has agreed to issue the Buyer Title Policy to Buyer upon payment of Title Company's premium for such policy; 4.5.5 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; 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; Page 14 of 29 A Avenue Purchase & Sale Agreement 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 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 sixty (60) days in the aggregate outside Escrow Page 15 of 29 A Avenue Purchase & Sale Agreement 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 bome 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 by Buyer; (b) The cost of the Buyer Title Policy attributable to the standard coverage portion shall be paid by Buyer; (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; (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 Buyer in accordance with customary practices in the County. The Buyer shall not be Page 16 of 29 A Avenue Purchase & Sale Agreement responsible for any closing fees or costs in excess of $2,000. The City shall pay for closing costs or fees in excess of $2,000. 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 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. Page 17 of 29 A Avenue Purchase & Sale Agreement 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 ENTITLED TO THE FOLLOWING REMEDIES: (1) AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT AND A RIGHT TO COLLECT ANY DIRECT DAMAGES; OR (2) TERMINATION OF THIS AGREEMENT AND AN ACTION TO RECOVER THE DEPOSIT AND ANY DIRECT DAMAGES SUCH AS COSTS IN NEGOTIATING AND PERFORMING WITH RESPECT TO THIS AGREEMENT. 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 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. 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: Page 18 of 29 A Avenue Purchase & Sale Agreement 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 CONTAINED IN THIS SECTION 5.1. fials of Authorized Buyer representative(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 DEPOSI1ED 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 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 Page 19 of 29 A Avenue Purchase & Sale Agreement 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. 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: Betty Winona McLintock Revocable Trust 2038 Euclid Avenue National City, California 91950 City of National City 1243 National City Boulevard National City, California 91950 Attention; City Manager With a Copy to: Angil Morris -Jones, 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 Page 20 of 29 A Avenue Purchase & Sale Agreement 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 by 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. The word "or" in this Agreement includes the word "and". Every reference to a law, statute, regulation, order, form or similar governmental requirement refers 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 Page 21 of 29 A Avenue Purchase & Sale Agreement 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, 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 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 EFFECTIVE DATE. Initials of Authorized Seller Representative(s) Initials of Buyer Page 22 of 29 A Avenue Purchase & Sale Agreement 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 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. Page 23 of 29 A Avenue Purchase & Sale Agreement 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 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. Page 24 of 29 A Avenue Purchase & Sale Agreement 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] Page 25 of 29 A Avenue Purchase & Sale Agreement SIGNATURE PAGE TO REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS 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 Betty Winona McLintock Revocable Trust municipal corporation Byr /b Name: Leslie Deese Title: City Manager ATTEST: By: �'(/� Name: Michael . Dalla Title: City Clerk APPROVED AS TO FORM: gil P. Morris -Jones By: IV Roberto M. Contreras Deputy City Attorney By: Name: AQow A /14'L,,yi-ock A Avenue Purchase & Sale Agreement Page 26 of 29 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: The easterly 10 feet of the westerly 40 feet of the easterly half of the northerly 50 feet of the southerly half of 10 acre Lot 3 of Quarter Section 153, in the City of National City, County of San Diego, State of California according to the map thereof Map 166, recorded in the Office of the San Diego County Recorded on May 11, 1869. EXHIBIT "B" TO REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS Grant Deed [behind this page] RECORDING REQUESTED BY STEWART TITLE GUARANTY COMPANY 1800D981(2gg AND WHEN RECORDED MAIL TO: City of National City 1243 National. City Boulevard National City, California 91950 Attn:. City Manager MAIL TAX STATEMENTS TO: Betty Winona McLintock Revocable Trust c/o Andrew McLintock 2038 Euclid Avenue National City, California 91950 DOC# 2018-0514448 11111111111111111111111111111111111111111111111111111III Dec 14, 2018 03:47 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $42.40 (SB2 Atkins: $0.00) POOR: YES PAGES: 9 {� (�'" 2 `D -' r (���SPACE ABOVE THIS LINE FOR RECORDER'S USE DOCUMENTARY TRANSFER TAX $ 4.40 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. £-it 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*Betty Winona McLintock Revocable Trust, 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), *Andrew Donald McLintock, Trustee 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 1. Conveyance in Accordance With Purchase Agreement. The Property is conveyed pursuant to that certain Real Property Purchase and Salo Agreement and Joint Escrow Palm Plaza City Ornnt Deed vl Page l of 6 RECORDING REQUESTED BY STEWART TITLE GUARANTY COMPANY 1.8o088 I@RBINGREQUESTED-1 AND WHEN RECORDED MAIL TO: City of National City 1243 National City Boulevard National City, California 91950 Attn: City Manager MAIL TAX STATEMENTS TO: Betty Winona McLintock Revocable Trust c/o Andrew McLintock 2038 Euclid Avenue National City, California 91950 APtI: 560-210-44 (por) SPACE ABOVE THIS LINE FOR RECORDER'S USE DOCUMENTARY TRANSFER TAX $ 4.40 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 Betty Winona McLintock Revocable Trust, 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). *Andrew Donald McLintock, Trustee 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. 1. Conveyance in Accordance With Purchase Agreement. The Property is conveyed pursuant to that certain Real Property Purchase and Sale Agreement and Joint Escrow Page 1 of 6 Palm Plaza City Grant Deed vl Instructions dated November 20, 2018 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 and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the above paragraph. Page 2 of 6 Palm Plaza City Grant Deed vl (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 Goveriunent Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (I) 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 hiin 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. 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 Page 3 of 6 Palm Plaza City Qrant Deed vl 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] Palm Plaza City Grant Deed vi Page 4 of 6 IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized this 20th day of November, 2018. "GRANTOR" "SELLER" CITY OF NATIONAL CITY, a California municipal corporation Name: Leslie Deese Title: City Manager ATTEST: By: ,� ��/1� Naive: Michael R. alla Title: City Cleric APPROVED AS TO FORM: igil P. Morris -Jones By: Roberto M. Contreras Deputy City Attorney [Signatures Continue On Next Page] Page 5 of.6 Palm Plaza City Grant Deed vl 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 c4rrkw' IV UM before me, l,E., t�alrr. No � a �bli'o , personally appeared Us(4 Dec yv who prove 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. OPTIONAL ANGELITA PALMA Commission No. 2216878 NOTARY PUBLIC - CALIFORNIA- SAN DIEGO COUNTY Commission Expires October 25, 2021 Description of Attached Document Title or Type of Documents: G-1r Document Date: De.0 C«' ' 1Ot2.0t4) Number of Pages: (P Signer(s) Other Than Named Above: Capacity(ies) Claimed By Signer(s) Signer's Name: (-4.4 li<.. 'I>c e . Signer's Name: Corporate Officer Title(s): C.Z4n ,NokrkenskiV 0 Corporate Officer — Title(s): ❑ Partner - o Limited ❑ General o Partner - ❑ Limited n General ❑ Individual o Attorney in Fact ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator o Trustee o Guardian or Conservator ❑ Other: ❑ Other: Signer is Representing: CL j o. Signer is Representing: Nahor4 C. j w MuNic?". torpo+-'hcr'' CERTIFICATE OF ACCEPTANCE OF GRANT DEED This is to certify that the interest in real property conveyed by the CITY OF NATIONAL CITY to Betty Winona McLintock Revocable Trust, 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. Dated: 01 b- WiB "GRANTEE" *see notes below Betty Winona McLintock Revocable Trust By: Name` Title: Trustee Page 6 of 6 Pahn Plaza City Grant Deed vl 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 Decery,ber , 2.o1g before me, .Cahko-(avr-tom, Rzi personally appeared And re..., (fin ald M Ll. i njDGtho proved to me on the basis of satisfactory evidence to be the person(s) whose nameO is/aye- subscribed to the within instrument and acknowledged to me that he/she/thcy executed the same in his/ker/their authorized capacity(s), and that by his/her/their signature(.) on the instrument the person(e), or the entity upon behalf of which the person(&) 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) Description of Attached Document Title or Type of Documents: Number of Pages: Signer(s) Other Than Named Above: OPTIONAL M. GHIO-COURTNEY Notary Public - California San Diego County Commission # 22233549 My Comm. Expires Apr 5, 2022 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: Document Date: Signer's Name: o Corporate Officer — Title(s): o Partner - ❑ Limited o General o Individual o Attorney in Fact o Trustee o Guardian or Conservator o Other: Signer is Representing: EXHIBIT A LEGAL DESCRIPTION The land referred to herein is situated in the City of National City, County of San Diego, in the State of California and is described as follows: A Portion of "A Avenue" Westerly and immediately adjacent to APN 560-210-18 being a Portion of 10-Acre Lot 3 of Quarter Section 153 of Rancho de La Nacion, in the City of National City, State of California, according to the Map thereof Number 166, recorded in the Office of the San Diego County Recorder on May 11, 1869; more particularly described as follows: The Easterly 10' of the Westerly 40' of the Easterly half of the Westerly half of the Northerly 50' of the Southerly half of said 10-Acre Lot 3. RESOLUTION NO. 2018 — 202 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY MANAGER TO EXECUTE A PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS FOR THE SALE OF A 500 SQUARE FOOT PARCEL OF VACANT LAND LOCATED ALONG "A" AVENUE IN FRONT OF 1835 "A" AVENUE IN NATIONAL CITY TO THE BETTY WINONA MCLINTOCK REVOCABLE TRUST WHEREAS, there is a strip of City -owned property (the "Property") along "A" Avenue running between the sidewalk and the owners property line (APN 560-210-44) that is 10-feet wide and 165-feet long fronting three privately owned lots; and WHEREAS, in 1959, a strip of City -owned property along "A" Avenue running between the sidewalk and the owner's property line (APN 560-210-44) that is 10-feet wide and 165-feet long fronting three privately owned lots (the "Property") was closed and vacated as a public street by the City Council; and WHEREAS, the Betty Winona McLintock Revocable Trust, the owner of 1835 "A" Avenue, desires to purchase a portion of the Property that totals 500 square feet in front of the their property for the amount of $4,000 and the cost of all escrow and closing fees up to $2,000. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Manager to execute a Purchase and Sale Agreement and Joint Escrow Instructions for the sale of a 500 square foot parcel of vacant land located along "A" Avenue in front of 1835 "A" Avenue in National City to the Betty Winona McLintorck Revocable Trust for the amount of $4,000 and the cost of all escrow and closing fees up to $2,000. ATTEST: PASSED and ADOPTED this 20th day of Nov_ r 14 Mic ael R. Dalla, ity Clerk APPROVED AS TO FORM: . Morris-J. es ttorney , 2018. Morrison, Mayor Passed and adopted by the Council of the City of National City, California, on November 20, 2018 by the following vote, to -wit: Ayes: Councilmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2018-202 of the City of National City, California, passed and adopted by the Council of said City on November 20, 2018. CityJerk of the oPNational City,California ity By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT d2ol$-(v2 ""FETING DATE: November 20, 2018 AGENDA ITEM NO. 32 ITEM TITLE: Resolution of the City Council of the City of National City authorizing the City Manager to execute a Purchase and Sale Agreement and Joint Escrow Instructions for the sale of a 500 square foot parcel of vacant land located along "A" Avenue in front of 1835 "A" Ave in National City to the Betty Winona McLintock Revocable Trust. PREPARED BY: Gregory Rose, Property Agent PHONE: 619.336.4266 EXPLANATION: There is a strip of City -owned property ("Property") along "A" Avenue running between the sidewalk and owners property line (APN 560-210-44) that is 10 feet wide and 165 long fronting three privately owned lots (See Attachment 3). In 1959 the City Council closed and vacated the property as a public street. The Betty Winona McLintock Revocable Trust ("Buyer"), owner of 1835 "A" Avenue, has requested the purchase of a 50 foot strip of the Property which totals 500 sq.ft. in front of the Buyer's lot. The Buyer approached Engineering to create a separate legal parcel ("Parcel") that could be split from the other two portions of the Property. The parcel was appraised on 4/16/2016 for $4,000. At the time of the appraisal the owner agreed to pay the appraised value and has also agreed all escrow and closing fees up to $2,000. The City has issued a separate legal description for the Parcel to be sold. DEPARTMENT: Housing & Economic velooment APPROV FINANCIAL STATEMENT: APPROVED: G `, j finance ACCOUNT NO. APPROVED: MIS The proceeds from the sale ($4,000.00) will go to the Sales of Real Property Account. Account # 001- 00000-3601. 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 an administrative activity that will not result in direct or indirect physical changes to the environment. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Purchase and Sale Agreement 2. Property Appraisal 3. Plat Map 4. Resolution �'c so /104-#1 ha • zo l 8- Z o 2 Attachment No. 1 REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS A Avenue, National City, CA This REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is dated as of November 20, 2018, and is entered into by and between the CITY OF NATIONAL CITY, a California municipal corporation ("City" or "Seller"), and the Betty Winona McLintock Revocable Trust ("Buyer"). RECITALS WHEREAS, Seller owns the fee interest in that certain real property generally located along "A" Avenue, National City, California 91950, legally described and depicted in Exhibit A attached hereto and made a part hereof ("Property"). WHEREAS, Seller desires to cause the sale, assignment and transfer of its interest in and to the Property to Purchaser on the Closing Date (as hereinafter defined), in accordance with the terms and provisions of this Agreement, and Purchaser desires to purchase the Property from Seller on the Closing Date, upon the terms more particularly set forth in this Agreement; AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and 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 Agreement. This Real Property Purchase and Sale Agreement and Joint Escrow Instructions by and between Seller and Buyer, including all of the attached Exhibits. 1.1.2 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. 1.1.3 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 ofa receiver or tnrsreP, bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters. Attachment No. 1 1.1.4 Bankruptcy Proceeding. Any proceeding, whether voluntary or involuntary, under any Bankruptcy Law. 1.1.5 Business Day. Any weekday on which the Seller is open to conduct regular governmental functions. 1.1.6 Buyer. Betty Winona McLintock Revocable Trust, and any permitted assignee of or successor to the rights, powers, or responsibilities of Buyer under this Agreement. 1.1.7 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. 1.1.8 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. 1.1.9 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 to CEQA, to issue any discretionary Approval required to approve this Agreement. 1.1.10 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. 1.1.11 City Manager. The City Manager of Seller or her designee or successor in function. 1.1.12 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. 1.1.13 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. 1.1.14 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 Interests, by contract or otherwise. Default. 1.1.15 County. The County of San Diego, California. 1.1.16 Default. An Escrow Default, a Monetary Default, or a Non -Monetary 1.1.17 Default Interest. Interest at an annual rate equal to the lesser of (a) eight Page 1 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 percent (8%) per annum; or (b) the Usury Limit. 1.1.18 Deposit. Four hundred and No/100 Dollars ($400.00). 1.1.19 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. 1.1.20 Due Diligence Period. The period of time commencing upon the Effective Date and expiring thirty (30) days thereafter. 1.1.21 Effective Date. Defined in Section 2 of this Agreement. 1.1.22 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, dived)/ 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 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 etseq.]; 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 § 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. Page 2 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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. 1.126 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 sixty (60) days following the Effective 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. 1.129 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 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 occutnce 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) Page 3 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 "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 Page 4 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 Property, 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 Indemniee. 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 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 Page 5 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 allotice. 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. 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 Property. That certain real property specifically described in Exhibit "A" attached to this Agreement and incorporated herein by this reference. 1.1.58 Purchase Price. Four Thousand andNo/100 Dollars ($4,000.00), which is the fair market value of the Property as of April 16, 2016, pursuant to that certain appraisal report conducted by George Hatch of George Hatch Appraisals. 1.1.59 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 Page 6 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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. 1.1.60 Seller Parties. Collectively, the Seller, the Seller's governing body, and the Seller's elected officials, employees, agents and attorneys. 1.1.61 State. The State of California. 1.1.62 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. 1.1.63 Title Company. Stewart Title of California, Inc., or such other Person mutually agreed upon in writing by both Seller and Buyer. 1.1.64 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 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 Jnterest(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 atax-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. 1.1.65 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. 1.1.66 Usury Limit. The highest rate of interest, if any, that Law allows under the circumstances. 2. EFFECTIVE 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 Page 7 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 body and executed by Seller's City Manager. 3. PURCHASE AND SALE OF PROPERTY 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 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 expressly 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. 3.3 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 Page 8 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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, which will insure the City and its officers, members, employees and agents 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. 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. Page 9 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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. Page 10 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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 ofNondiscrimination 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 Property 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 Property 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. Page 11 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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 Property 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 Property 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 andin 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, Page 12 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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 Page 13 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 following conditions precedent on or before the Escrow Closing Date: 4.5.1 CEQA Documents. Adoption, approval or certification of the CEQA Documents by each applicable Government; 4.5.2 Buyer Escrow Deposits. Buyer deposits all of the items into Escrow required by Section 4.6 of this Agreement; 4.5.3 Settlement/Closing Statement. Seller reasonably approves Seller's Escrow Closing Statement; and 4.5.4 Title Policy. The Company has agreed to issue the Buyer Title Policy to Buyer upon payment of Title Company's premium for such policy; 4.5.5 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; 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; Page 14 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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 sixty (60) days in the aggregate outside Escrow Page 15 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 by Buyer; (b) The cost of the Buyer Title Policy attributable to the standard coverage portion shall be paid by Buyer; (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; (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 Buyer in accordance with customary practices in the County. The Buyer shall not be Page 16 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 responsible for any closing fees or costs in excess of $2,000. The City shall pay for closing costs or fees in excess of $2,000. 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 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 fora to both Seller and Buyer. Page 17 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 ENTITLED TO THE FOLLOWING REMEDIES: (1) AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT AND A RIGHT TO COLLECT ANY DIRECT DAMAGES; OR (2) TERMINATION OF THIS AGREEMENT AND AN ACTION TO RECOVER THE DEPOSIT AND ANY DIRECT DAMAGES SUCH AS COSTS IN NEGOTIATING AND PERFORMING WITH RESPECT TO THIS AGREEMENT. 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. SET I PR 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 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. 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: Page 18 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 CONTAINED IN THIS SECTION 5.1. ' als of Autho rized orized Buyer representative(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 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 Page 19 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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. 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: Betty Winona McLintock Revocable Trust 2038 Euclid Avenue National City, California 91950 City of National City 1243 National City Boulevard National City, California 91950 Attention: City Manager With a Copy to: Angil Morris -Jones, 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 Page 20 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 by 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. The word "or" in this Agreement includes the word "and". Every reference to a law, statute, regulation, order, form or similar governmental requirement refers 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 Page 21 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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, 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 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 EFFECTIVE DATE. Initials uyer Initials of Authorized Seller Representative(s) Page 22 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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. Page 23 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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 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. Page 24 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 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] Page 25 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 SIGNATURE PAGE TO REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS 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 Betty Winona McLintock Revocable Trust municipal corporation By: By: Name: Name: Title: City Manager ATTEST: By: Name: Title: City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones By: Roberto M. Contreras Deputy City Attorney Page 26 of 29 A Avenue Purchase & Sale Agreement Attachment No. 1 EXHIBIT "A" TO REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS Property Le2a1 Description The land referred to herein is situated in the State of California, County of San Diego and described as follows: The easterly 10 feet of the westerly 40 feet of the easterly half of the northerly 50 feet of the southerly half of 10 acre Lot 3 of Quarter Section 153, in the City of National City, County of San Diego, State of Califomia according to the map thereof Map 166, recorded in the Office of the San Diego County Recorded on May 11, 1869. Attachment No. 1 EXHIBIT "B" TO REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS Grant Deed [behind this page] Attachment No. 1 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: Betty Winona McLintock Revocable Trust c/o Andrew McLintock 2038 Euclid Avenue National City, California 91950 SPACE ABOVE THIS LINE FOR RECORDER'S USE 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 Betty Winona McLintock Revocable Trust, 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. 1. Conveyance in Accordance With Purchase Agreement. The Property is conveyed pursuant to that certain Real Property Purchase and Sale Agreement and Joint Escrow Page 1 of 6 Palm Plaza City Grant Deed vl Attachment No. 1 Instructions dated November , 2018 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 and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the above paragraph. Page 2 of 6 Palm Plaza City Grant Deed vl Attachment No. 1 (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 Goverment 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. 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 Page 3 of 6 Palm Plaza City Grant Deed vl Attachment No. 1 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 vl Attachment No. 1 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 , 2018. "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: Angil P. Morris -Jones By: Roberto M. Contreras Deputy City Attorney [Signatures Continue On Next Page] Page 5 of 6 Palm Plaza City Grant Deed vl Attachment No. 1 CERTIFICATE OF ACCEPTANCE OF GRANT DEED This is to certify that the interest in real property conveyed by the CITY OF NATIONAL CITY to Betty Winona McLintock Revocable Trust, 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 Betty Winona McLintock Revocable Trust Dated: By: Name: Page6of6 Palm Plaza City Grant Deed vl Attachment No. 1 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) Description of Attached Document Title or Type of Documents: Number of Pages: OPTIONAL Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed By Signer(s) Signer's Name: o Corporate Officer — Title(s): o Partner - ❑ Limited ❑ General o Individual o Attorney in Fact o Trustee ❑ Guardian or Conservator o Other: Signer is Representing: Signer's Name: ❑ Corporate Officer — Title(s): o Partner - ❑ Limited o General o Individual o Attorney in Fact ❑ Trustee o Guardian or Conservator o Other: Signer is Representing: Attachment No. 1 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 ❑ General o Individual o Attorney in Fact o Trustee ❑ Guardian or Conservator o Other: Signer is Representing: Signer's Name: o Corporate Officer — Title(s): ❑ Partner - o Limited o General. ❑ Individual ❑ Attorney in Fact o Trustee o Guardian or Conservator o Other: Signer is Representing: Attachment No. 1 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) Description of Attached Document Title or Type of Documents: Number of Pages: OPTIONAL Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed By Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner - ❑ Limited o General ❑ Individual ❑ Trustee ❑ Other: ❑ Attorney in Fact ❑ Guardian or Conservator Signer is Representing: Signer's Name: o Corporate Officer — Title(s): o Partner - o Limited o General o Individual ❑ Attorney in Fact o Guardian or Conservator ❑ Trustee o Other: Signer is Representing: Attachment No. 1 EXHIBIT "A" LEGAL DESCRIPTION The land referred to herein is situated in the State of California, County of San Diego and described as follows: The easterly 10 feet of the westerly 40 feet of the easterly half of the northerly 50 feet of the southerly half of 10 acre Lot 3 of Quarter Section 153, in the City of National City, County of San Diego, State of California according to the map thereof Map 166, recorded in the Office of the San Diego County Recorded on May 11,1869. Exhibit A Attachment No. 2 16-03102 APPRAISAL REPORT - SINGLE FAMILY RESIDENTIAL (Before and After Lot Expansion) Client City of National City Client Contact 1243 National City Blvd National City, CA 91950 Appraiser George Hatch License No. AG006455 License Expires 03/2017 Appraiser Contact 2588 El Camino Real #F-305 Phone 760.434.9950 Carlsbad, CA 92008 Ghatchappraisals @ hotmail.com Property Address 1837 A Street Map Reference 1309/H2 City National City County San Diego State CA Zip Code 91950 Property Rights Fee Simple Census Tract .0116.01 Property Owner Betty Mclintock Revoc. Trust APN 560-210-17 Property Use Single Family Residence As Appraised Single Family Residence Addition APN 560-210-44(Por) Legal Description: (1837 A Street) Portion of Lot 3, 1/4 SEC 153 of Rancho de La Nacion, located in the city of National City, County of San Diego, State of California, According to Map Thereof No. 166, filed in the Office of the County Recorder for San Diego County. (Addition Parcel, currently owned by the City of National City); Street Closed in West Half of Lot 3, 1/4 SEC 153 of Rancho de La Nacion, located in the city of National City, County of San Diego, State of California, According to Map Thereof No. 166, filed in the Office of the County Recorder for San Diego County. (See Title Report. The proposed addition consists of the middle 50ft of this parcel) ADDITIONAL ASSIGNMENT ELEMENTS Intended Users The Intended Users are limited to the Client noted above. No other intended users are identified or assumed. Intended Uses The Intended Use is for mortgage underwriting decisions. No other intended uses are identified or assumed. Type of Value Market Value Hypothetical Conditions 1837 A Street is appraised both with and without the proposed lot addition from the additional parcel. The value "with lot expansion' is appraised subject to the use of a hypothetical condition, namely, what would the property be worth with the additional lot area. By contrast, the value "without lot expansion" represents the as is value of the property. Extraordinary Assumptions The appraisal is made based on an exterior -only inspection and assumes that the living area size and overall quality/condition of the home are generally consistent with the conditions observed for the interior. 3 Yr Assignment History No prior services rendered in conjunction with this property within the previous 3 years. Other Assignment Conditions applicable to this assignment; includes written appraisal policies, guidelines, or other instructions identified at the time of engagement. The assignment involves the question of what the contributory value to 1837 A Street is if the parcel is expanded with the portion of the City's lot (560-210-44) that lies directly in front of it, subject to a lot line adjustment by the city. Inasmuch as there is no sales data involving 500sf parcels the next best way to measure the contributory value of the city's lot segment to this property is to value the property both with the larger lot (Subject to" the lot expansion) vs the value of the property with its existing lot dimensions("As Is" Value). The use of this hypothetical condition for the "subject to expansion" valuation scenario is dependent on completion of a proposed lot expansion per specifications. Likewise, the use of the assumption about the interior quality/condition of the home is also dependent on those assumptions being essentially correct. If this assumption proves incorrect it would likely have an effect on my value conclusions. The standard assumptions and limiting conditions are noted in the attached addendum. No other assumptions or hypothetical conditions are noted. No additional instructions were communicated or assumed. SALIENT CONCLUSIONS Existing use Residential Duplex Property Rights Appraised Fee Simple Highest Best Use Existing Use Estimated Exposure Time 3-4 Months Year Built 1950s Gross Living Area 1,838 Market Value "As Is" Without Lot Expansion $350,000 Existing Site Size 6,150 Market Value "Subject to" the Lot Expansion $350,000 16-03102 NEIGHBORHOOD ANALYSIS uses Use Supply Vac % ingle Family 30% Balanced 0 ulti-Family 50% Balanced 0-5 Office 0% Balanced -- Retail 20% Balanced 10 Industrial 0% Balanced -- Vacant 0% Balanced -- Built Up 100% Location Suburban Tra rsition Neighborhood Development Trend Stable Value Trend Stable Vacancy Trend Stable Distance - Schools 3 Blk East Otis Elementary School Distance - Services 10 Blk East Highland Ave Distance - CBD 10 Blk North 8th Ave / National City Blvd Distance - Freeway 8 Blk West Interstate-5 Neighborhood Boundaries: The subject's neighborhood boundaries include: the National city commercial corridor south of the Civic Center to 30th Street. Analysis / Comments: The subject's immediate neighborhood consists of the National City Mile Of Cars commercial corridor which includes National City blvd and portions of A Ave south to 30th Street. This is a transition neighborhood that includes the commercial uses fronting National City Blvd as well as the mix of residential and commercial uses fronting A Street; and is distinctly different from the industrial neighborhood located to the west of National City Blvd. The residential uses in this immediate neighborhood consist of a combination of older single family homes and 2-4s, mostly built prior to 1970. The non-residential uses consist mostly of auto sales and related uses, including open storage yards, auto service, etc. Market Segment Analysis: The subject's market segment is identified as extending throughout the s/western National City area and consisting of other single family residences 50-80 year age range, The general market conditions for this market segment demonstrate peak pricing from 2005-2006 followed by a significant decline in pricing between 2009-2012, and then steady value increases to present. So far, 2016 pricing is still lower than that of the prior peak in 2005. There remains a very small amount of foreclosure and short sale activity within this neighborhood, but those sales are no longer sufficient in numbers to be of significant effect on the pricing of the more typical arms' length sales. Typical exposure times among all closed sales in this area has ranged from about 1-2 months depending on pricing, indicating strong demand at these prices. SITE ANALYSIS (EXISTING PARCEL 560-210-17) kite size 6,150 SgFt Dimensions 50 X 123 Topography Level Terrace Elevation <100ft above Sea Level Utilities Electricity Connected Gas Connected Water Connected Sewer Connected Phone Connected Well N/A Septic System N/A Improvements: Maintenance Public Street Width 60 Feet Street Paving Asphalt Sidewalks Concrete Curbs/Gutters Concrete Storm Sewers Concrete Lighting Public Lot Characteristics Lot Shape Rectangular View Amenity None Lot utility 100% Usable Street Access Direct to public street Easements Relies on Dominant Easement for Access Encroachments None Noted currentzoning RM-2 High Density Multi -Unit Residential Allowable Uses Allows for 24-48 units per Acre Impr. Status Legal Conforming Drainage Appears Adequate FEMA Flood Zone Zone X Not in a Flood Hazard Zone Panel No. / Date 060293-1911 G Eff 05/2012 Analysis / Comments: Title and soils reports were not reviewed. The subject site as it currently exists is located on the east side of A Avenue, about 360ft north of 19th Street. A Ave is a residential street that ends —50ft to the north of the subject site. This site currently relies on an easement across a 10-ft wide parcel for access onto A Ave, the parcel for which belongs to the city. Under the existing zoning the 1837 A Ave parcel is of sufficient size to support the development of 3 residential units, based on the midpoint density of the zoning, which amounts to 1900sf per unit. The City's lot segment that is proposed to be added to the 1837 A Ave site is the middle 50ft of a 165ft x 10ft sliver that fronts the subject site as well as the adjacent parcels to the north and south. The City's lot is of insufficient size to develop independently and has market value only to the extent that it can be added to the adjacent parcels. For the most part the only buyers for the 3 lot segments are the property owners of the adjacent parcels for which they are already providing these access ^.asements. -he purpose of this appraisal is to answer the question of what the value is of that 10' x 50' parcel if added directly to the subject site. In order to add this lot segment to the subject site it would either take a lot split and lot line adjustment, or some other means of conveyance such as selling it as a condominium or a leasehold; the means of which are to be determined later. -2 16-03102 IMPROVEMENTS ANALYSIS (EXTERIOR INSPECTION ONLY) I Property Type Residential Duplex Constr. Type Frame/Stucco Year Built 1950s Exist/Proposed Existing Att/Detached Detached Effective Age 30 EXTERIOR Materials Obs. Condition Other Features Obs. Condition Unit Mix 1bd Units 0 2bd Units 2 3bd Units 0 Rentable Rms 8 Avg Unit Size 914 sf Foundation Raised Perimeter Average Attic Scuttle -- Basement None -- Frame Wood -- Roof Truss Wood -- Roof Cover Built Up Average Exterior Walls Stucco Average Windows Aluminum Sldrs Average Exterior Doors Wood solid core Average Garage None -- Parking Concrete Average Driveway Concrete Average Landscaping Lawn/Planters Average Fencing Chain Link Average Above Grade Living Area (GLA) Public Records 1,828 sf As Measured N/A Inspection Comments: Due to the assignment conditions I was unable to physically inspect the subject interiors and was only able to observe the existing improvements from the street. This appraisal is based on the assumption that the living area as reported in public records is significantly correct and that the unit interior quality and condition are significantly similar to the conditions observed for the exterior. In the event that these assumptions prove incorrect it may affect my opinions and conclusions. Improvements Comments: The subject improvements are reported as being built in 1980 however the raised foundation + exterior designs are more consistent with other duplex properties in National City and Chula Vista that were built in the late 1950s. Other site improvements are limited to the chain link fencing, landscaped rear yard and planters and the concrete parking area in front of the main structure, which has room for 4 parking spaces. Physical Depreciation, External or Functional Obsolescence: Based on the inspection/observation protocols typically used for real property valuation, there are no undue physical deficiencies or functional obsolescence or external obsolescence noted. The subject's attributes are considered functional and serviceable within the context of its market segment. Although it appears these units have been updated in the past some of the trim is ready for repainting. It is assumed that the interiors of these units are in average/serviceable condition. Additional Development Potential The main improvements are oriented on the site with —5'-7' of setback on each side, and —42ft from the western lot line (fronting the street). Development standards for the RM-1 zoning allow for an additional residential unit onsite but require a 20ft setback from the street. Although probably not economically feasible, it might be possible to add a 3rd unit over the existing structure except that with only the existing driveway easement there would be no way to provide the requisite onsite parking for the additional unit unless the driveway easement was expanded to basically make the entire frontage of the parcel directly accessible from the street. Adding the City's segment to this parcel would effectively enable the usage of the entire frontage to the street, as well as expanding the front setback to the existing structure to 52ft. So while having 500ft more lot area wouldn't affect the permissibility of a 3rd unit onsite, having the use of the entire 10ft of additional frontage to this site would more readily enable construction of another structure (apartment over carport or garage). Note that this only extends to what's physically possible, not what's economically feasible or what's most likely in the market. PROPERTY TAX ASSESSMENT 2016 Assessor Parcel No. Land Building Total Current Taxes Forecasted 560-210-17 $38,702 $86,144 $124,846 $1,830.48 $1,867.09 This site is not reported to be subject to special assessments. Under current property tax laws the potential for increases in property tax assessments amounts to 1 % of full market value plus tax indebtedness, capped at a maximum inflation rate of no more than 2%/year. In the event of a closed sale or transfer the property is subject to be reassessed based on the market value at the time of assessment. -3 Attachment No. 2 HIGHEST AND BEST USE ANALYSIS 16-03102 The process of Highest and Best Use analysis involves consideration of the subject's attributes within the context of 4 criteria: lose uses which are legally permissible, physically possible, financially feasible, and lastly maximally profitable. The process is esigned to start with all possible uses and using the process of elimination, narrow those uses down to the one or two uses that can be considered both practical and profitable given the subject's attributes. LEGALLY PERMISSIBLE USES: The current zoning of RM-2 High Density Multi -Unit Residential allows for high density residential use of this site. Maximum density for single use development is 48 units/acre, maximum building heights are 65 feet and the maximum Floor Area Ratio is 75%. Residential parking requirements apply. PHYSICALLY POSSIBLE USES: The subject site is an interior parcel of 6,150 sf and the city is considering expanding this site to 6650 sf. The fronts a residential street and there is no alley access. Site dimensions include 50ft of frontage. The site has adequate exposure and access for those uses that would be legally permitted under the current zoning. All available utilities appear to be readily available to the site. Site topography includes a level terrace at street grade and lot utility is still rated at or near 100%. Considering these physical attributes, the legal uses that could be built on this site include: multi -story residential development of up to 6 units under the 6150 sf size and up to 7 units under the 6650 sf size. FINANCIALLY FEASIBLE USES: This category includes consideration of those uses that have potential to add any value above and beyond the site value as vacant. Considering the supply and demand factors present in this area would seem to rule out most of the remaining uses, leaving only multi -family residential uses of high density, up to 4 townhome units and sharing a common driveway along the side for this site. This would amount to an effective density of 1 unit per 1537sf at the existing size and 1 unit per 1662sf at the larger site size. Based on the maximum FAR of 75% the main difference between the two site sizes would be to increase the average unit size from 1153sf for the existing site size to 1246sf at the larger site size. That 90sf in larger unit size would add only marginally to the retail prices of the finished units, by perhaps as much as $10,000 per unit in the price ranges applicable for such units in the National City markets. •ven though the higher densities are legally permissible their unit sizes would decrease and their construction costs would increase as a result of building common parking garages instead of adding the more valuable private garages to the ground level of each unit as is the dominant form of condo development in this area. In addition what's feasible for the site as vacant, the existing use is obviously economically feasible for the site in it's as is condition. MOST PROFITABLE USE: This category narrows down any remaining feasible alternatives to the one option that can reasonably be considered the most profitable within the context of the current market conditions. Of the above uses that qualify legally, physically and financially, the current supply and demand factors rule out all uses other than the existing use of this site in its as is condition. Even though a 4-unit project would be economically feasible if the site were vacant, the existing use is worth more than the underlying site value - this is what makes the existing use the highest/best use for the site in its as is condition. Since the definition of Market Value used for this appraisal can only be adequately met if that property is valued according to its highest and best use, the remainder of this appraisal is based on the above conclusion Highest and Best Use: Existing use as 2-unit residential APPRAISAL METHODOLOGY Having established that the subject site in its current condition is worth more in the existing use than for site value, the next step of the assignment is to value the 2-units, both with the existing lot size as well as the proposed larger lot size. A site value analysis is included in this report to support the conclusions of the highest/best use analysis. Given the nature of the assignment along with the high incidence of owner -occupancy for 2-unit residential properties in the area, the dominant form of valuation for such properties in the Sales Comparison. Although an Income Approach (via Gross Rent Multiplier) can be readily developed that is not the dominant form of valuation for such properties and it really doesn't --latter to most buyers what the GRM is when compared to the results of the Sales Comparison. -he sales data are analyzed based on their most relevant characteristics and using the dominant unit of comparison normally used by the typical buyers and sellers for that property type. The dominant unit of comparison for 2-unit residential properties is either the sales price itself or the price/room indicator; the latter generally yielding a more consistent analysis. -4 16-03102 SITE SALES DATA (EXISTING CONFIGURATION) Address APN Subject Site #1 Site #2 Site #3 I 1837 A Street 560-210-17 420 W 21 st Street 559-125-16 2501 E 18th Street 558-190-11+12 2752 E 18th Street 558-250-35 Sale Date / Doc# Sale Price Price/sf Lot Area Market Conditions Location Site Area View Topography Lot Utility Zoning Max. No of Units Probable density Unit Size @ Probable Structural lmpr. $ — Eff 03/2016 @ 18th St 6,150 (6,650) None Level 100% RM-2 48/Ac 6 Units (7 Un) 4 Units (4 Un) 1153sf (1247sf) Duplex 3/19/2016 85646 $182,000 $36,400 $31.65 Current @ Harding 5,750 None Terrace 100% MCR-2 8 Units 5 Units 1150sf None 10/2/2015 520149 $270,000 $30,000 $18.29 Current E of Orange 14,764 None Level 100% MXC-1 48/Ac 16 9 Units 1230sf None 5/1/2014 176124 $215,000 $30,714 $20.31 Current @ Granger 10,584 None Level 100% MXC-1 48/Ac 11 7 Units 1134 sf SFR + Retail Total Adjustments — 0 0 0 Adjusted Price $ -- $ 36,400 $ 30,000 $ 30,714 Analysis/Comments: The above site sales data are considered to be the most recent and similar site sales data available at appraisal. Although each have higher maximums, they're valued based on the more probable development include surface level parking garages for each unit and requiring about 1500sf of lot area per unit. Site #1 - 420 W 21 st Street; this property is located in the city's Westside Specific Plan in the Transit District, so the maximum allowable density is relatively close to that of the subject site. This is a corner block east of the transit station and is improved with an older existing home that was reported in poor Site #2 - 2501 E 18th Street; This is a 2-lot assemblage located on the north side of 18th Street midblock Ave (W) and Lanoitan Ave (E). The site was formerly improved with 2 old houses but those were removed The parcel is zoned MXC-1, which allows for up to 16 units on this parcel. Site #3 - 2752 E 18th Street; This parcel is located on the s/west corner of 18th/Granger. It was improved and an old restaurant but both structures have since been removed. The property was marketed and redevelopment. The zoning allows for mixed use or medium density multi -family, so this sale is given overall. On a price per unit basis, the effect of adding 500sf more usable lot area very slightly increases the finished 6150sf * .75 FAR is a little less than 6650sf * .75 FAR), but only enough to warrant ranking the subject's the sales that have similar potential unit sizes. If a finished unit sells for $10,000 because it's 100sf larger, value" after developing a condo map might comprise 25% of the $10k increase and the raw land value condo map might be half of that. In the above analysis, Sites #2 and #3 are a little more dated as land sales go, but they have more similar Site #1 has an existing SFR onsite and is located across the street from the Transit center so that location little superior. It should be noted that if the subject and the comparables are valued based on their maximum densities feasibility of such development their price/unit indicators yield the same or a very similar value conclusions other words, if the per -unit values at maximum density indicate to $20,000/unit x 6 for the subject, then indicator of $30,000/unit x 4 units = $120,000, too. Probable Yield Price/Unit Valued at existing site size (6,150sf) 4 Units $30,000 Valued at proposed site size (6,650sf) 4 Units $31,500 the time of this scenarios that Oriented Development parcel located 1/2 condition. between Euclid prior to 2014. with an old house purchased for secondary weight unit sizes (because value a little closer to then the "finished lot before developing the zoning and unit sizes. can be considered a without regard for the for the subject. In the probable density Value as Land $120,000 $126,000 -5 16-03102 SALES COMPARISON APPROACH idress APN Subject Sale #1 Sale #2 Sale #3 1837 A Street 560-210-17 1901 D Ave 560-231-06 1330 E 6th Street 557-092- 04 1304 Scott Drive 551-490-13 Site Area Bldg Area Year Built Quality Condition Parking No of Units No of Rooms Average Unit size 6,150 (6,650) 1,828 1950s Average Average Open Spaces 2 8 914 4,600 1,830 1962 Average Average Open Spaces 2 8 915 6,300 1,422 1958 Average Good Remodeled Carport Spaces 2 8 711 6,106 1,218 1948 Average Average Open Spaces 2 8 609 Unit Mix Type No Rooms Type No Rooms Type No Rooms Type No Rooms lbd Units 2bd Units 2 8 3Bd Units Total 2 8 lbd Units 2bd Units 2 8 3Bd Units Total 2 8 lbd Units 2bd Units 2 8 3Bd Units Total 2 8 lbd Units 2bd Units 2 8 3Bd Units 0 Total 2 8 Sale Date Sale Price Property rights Financing Conditions of Sale Land eff 03/2016 -- Fee Simple N/A N/A None 10/21/2015 $350,000 Fee Simple $262,500 Market Sale None 03/24/2016 $325,000 Fee Simple No 1st Rec'd Market Sale None 07/24/2015 $313,000 Fee Simple No 1st Market Sale None ixcess dj. Sale Price Price/Unit Price/Room Price/SF MarketRent/Mo Gross Inc. Multiplier -- -- -- $2,600 -- $350,000 $175,000 $43,750 $191.26 $2,600 134.62 $325,000 $162,500 $40,625 $228.55 $2,450 132.65 $313,000 $156,500 $39,125 $256.98 $2,400 130.42 Analysis/Comments: The subject property consists of a 2-unit residential duplex, located on the south end of town. Quality interior are assumed Average. The above rentals include another duplex located around the corner from similar design and unit mix. S#1 is considered the most similar and is given the greatest weight. The smaller units but are generating comparable rents nonetheless, so that demonstrates that neither site are of significant effect on the overall value as an existing duplex. Price/Room Indicator Price Rooms =value SALES Valued at existing site size (6,150sf) $44,000 8 $352,000 Valued at proposed site size (6,650sf) $44,000 8 $352,000 and condition of the the subject and with a other two sales feature size nor even unit size COMPARISON $350.000 $350.000 -6 16-03102 RECONCILIATION AND FINAL VALUE CONCLUSIONS Existing lot @ 6,150 sf As Proposed at 6,650 sf Underlying Site Value $120,000 $124,000 Value as Improved with Duplex $350,000 $350,000 The extent of the development and reporting of this appraisal assignment are intended to meet or exceed the needs of the intended users of this report within the context of the intended use as communicated to the appraiser. The subject of this appraisal is the existing duplex as 1837 A Ave, the property being valued both with the existing lot size as well as with an expanded lot size as is proposed by the city and resulting from transfer of a 10 x 50 portion of a city -owned parcel that's located in front of the subject property. The reason the property is analyzed for both the underlying site value as if vacant as well as in it's existing use as a residential duplex is to demonstrate that the existing use is still the highest and best use for the property in its as is condition, and to provide an indication of the possible effect on value the additional lot area would provide this site if/when it is redeveloped into multi -family, assuming development under the prevailing form as 2-story attached townhomes with private garages. Given the nature of the subject property's existing use and the intended use of this appraisal, neither the Cost nor Income Approaches to value are developed in this appraisal. That's because these buyers aren't working off of the GRMs or off of cost, but are making their decisions via Sales Comparison. The Sales Comparison Approach is the dominant approach to value within this market segment and is given greatest weight. There were adequate sales of sufficiently similar attributes for comparison, and after comparison they yielded a reasonably narrow range of value indicators. In addition to the sales data presented in this appraisal as being "most similar and proximate", there were also a number of other, less similar properties that were also analyzed during the course of this appraisal. These other sales data are retained in the workfile and also contributed to the Appraiser's opinion of value. The opinion of Market Value expressed below is based on an estimated exposure time of 3-4 months, assuming adequate exposure to the market by competent brokerage. In this case, the estimated marketing time is considered to be equal to the estimated exposure time. Any attempts to market the property in less time or by using less than adequate exposure to the market would likely require significant discounting or concessions. The subject property is appraised in its "As Proposed" condition (with the additional lot area deeded to the parcel) as well as it's "As Is" condition and configuration. The appraisal is based on the definition of value contained herein and within the context of the assumptions and limitations noted. Please note the Intended Use and Intended Users of this appraisal and appraisal report as identified on Page 1 of this appraisal report, as other uses or other users are not intended by the Appraiser. Any third parties not otherwise identified as an Intended User of this appraisal are strongly urged to seek a separate appraisal that is specific to their needs and requirements from a duly qualified appraiser. FINAL VALUE CONCLUSION Property Rights Appraised Fee Simple Effective Date of the Appraisal 3/10/2016 Definition of Value Market Value Appraised Condition "As Is" @ 6,150sf + "subject to" Estimated Exposure time 3-4 Months addition to equal 6,650 sf (Insurable Value) Not Applicable APPRAISED MARKET VALUE OF THE FEE SIMPLE INTEREST IS: "As Is" Condition "Subject To" Lot Expansion Existing lot @ 6,150 sf Enlarged Lot at 6,650 sf ‘6:(f/74-(:::7 $350.000 $350.000 George Hatch #AG006455 Date of Report: 04/16/2016 I Certified General Appraiser Personal Inspection: Interior/Exterior -7- 16-03102 ASSIGNMENT ELEMENTS P1 DEFINITION OF MARKET VALUE The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: 1. Buyer and Seller are typically motivated; 2. Both parties are well informed and acting in what they consider their own best interests; 3. A reasonable time is allowed for exposure on the open market; 4. Payment is made in cash in U.S. dollars or in terms of financial arrangements comparable thereto; and 5. The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale. [Source: Office of the Comptroller of the Currency, under 12CFR, part 34, Subpart C - Appraisals, 34.42 Definitions (f).] DEFINITION OF INSURABLE VALUE 1. The portion of the value of an asset or asset group that is acknowledged or recognized under the provisions of an applicable loss policy. 2. Value used by insurance companies as the basis for insurance. Often considered to be replacement or reproduction costs less deterioration and non -insurable items. Sometimes cash value of market value but often entirely a cost concept. [Source: Marshall Valuation Company of Los Angeles, Commercial Cost Guide ] DATA SOURCES USED IN APPRAISAL Axciom, ReaList.Com, LoopNet.com, Sandicor MLS. Site zoning and requirements were obtained from the jurisdiction in which the subject site is located. Data verification is generally limited to cross checking databases. Personal verification is generally limited to those instances where the database information is considered less than reliable or incomplete. This level of research and verification are considered appropriate within the context of the intended users and intended use of this appraisal. ' PHYSICAL INSPECTION OF IMPROVEMENTS Exterior Inspection (Only) Assumes interior quality/condition is consistent with that observed on the exterior, and assumes building area as reported is substantially accurate. Interior/Exterior Inspection, no physical measurements; assumes building area as reported is substantially accurate. Interior/Exterior Inspection, with physical measurements (see diagram). Note that the extent of the physical inspection process used for this appraisal is limited to the typical and normal observations of the readily visible areas, and are perfomied only to the extent necessary to develop the Appraiser's opinion of value. This inspection process should not be confused and is not intended to be a substitute for a technical inspection or survey process as would be used by a professional engineer or building inspector. Readers are strongly advised to seek their own inspections from such professionals if they desire a technical inspection. COST APPROACH ,, Not applicable to this assignment and not developed Considered applicable to this assignment and is included in this appraisal. INCOME APPROACH ,, Not applicable to this assignment and not developed Considered applicable to this assignment and is included in this appraisal. SALES COMPARISON APPROACH Not applicable to this assignment and not developed ,, Considered applicable to this assignment and is included in this appraisal. Comment: The subject property is located within a market segment wherein there are adequate sales data of sufficiently similar attributes against which the subject can be compared. The dominant unit of comparison for this property type is the price/Unit, and adjustments are developed using a combination of comparison of the sales data to each other as well as against other, less directly comparable sales data in the area. The Appraiser acknowledges that personal judgment, resulting from numerous prior assignments involving similar properties in this region, is also used in the development of these adjustments. The subject is ranked among the comparables on a qualitative basis and the price/Unit indicator used in the value conclusion reflects that ranking. -8 Attachment NQ. 2 ASSUMPTIONS AND LIMITING CONDITIONS 16-03102 This appraisal and appraisal report was prepared in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP). In addition to the assumptions and associated limitations resulting from the scope of work used in this assignment, additional assumptions and limitations apply as follows: 1 This appraisal was developed using the scope of work as identified throughout this report, the decisions for which were made within the context of the needs of the intended users as communicated to the Appraiser by the Client. This workproduct cannot be assumed to be sufficient for the needs of other users or for other uses than those identified on Page 1 of this report. Specifically, any other third parties are advised to seek another appraisal from a duly qualified appraiser specific to their use. 2 The extent of research and analysis performed for this assignment is considered appropriate for the intended use as identified. If desired, the reader may request additional information and analyses, or further clarification. However, the reader is notified that any substantial changes to the assignment conditions may affect the scope of work sufficiently to create a new assignment. If so, additional billing may be charged to cover the additional costs associated with the extra work. 3 The information provided by others is assumed to be sufficiently reliable for use in this assignment. The Appraiser cannot assume responsibility for inaccuracies beyond the typical protocols used in this assignment. Therefore, no warranty for third party information is offered. 4 No responsibility is assumed for legal or title considerations. Title is assumed to be good and marketable unless otherwise state in the report. 5 The inspection of the physical attributes of the subject property are intended to be sufficient only for the purposes of developing an opinion of value, and should not be confused with a technical inspection of the structures as would be performed by an engineer or other structural inspection professional. No warranty of any physical components are offered or implied. If desired, the reader is urged to seek a survey or building inspection from a qualified professional. 6 Any building diagrams, maps or other visual aids included in this report are intended to assist the reader in visualizing the various aspects of the appraisal problem. They are not intended as a substitute for land or building surveys or as an indication of a warranty. 7 It is assumed that there are no hidden or unapparent conditions - including environmental hazards - that render the subject property less valuable. This includes conditions that may affect the property, subsoil or structures. No responsibility is assumed for such conditions of for arranging for the engineering studies or inspections that may be required to discover them. 8 The appraiser will not be required to give testimony or appear in court as a result of performing this appraisal unless specific arrangements - including additional compensation - are made in advance. 9 The client for this assignment is as identified on Page 1 of this report. Except as outlined in the Confidentiality Section of the Ethics Rule of USPAP and applicable local, state or federal law, the Appraiser will not discuss or otherwise disseminate confidential information or assignment results to any party without specific instructions to do so from the Client. APPRAISER'S CERTIFICATION I certify, to the best of my knowledge and belief: 1 The statements of fact contained in this report are true and correct. 2 The reported analyses, opinions and conclusions are limited only to the reported assumptions and limiting conditions, and are my personal, impartial and unbiased professional analyses, opinions and conclusions. 3 I have no present or prospective interest in the property that is the subject of this report and I have no personal interest with respect to the parties involved. 4 I have no bias with respect to the property that is the subject of this report or to the parties involved in this assignment. 5 My engagement in this assignment was not contingent upon developing or reporting predetermined results. 6 My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. 7 This appraisal was not based on a requested minimum valuation, a specific valuation or the approval of a loan. 8 My analyses, opinions and conclusions were developed, and this report has been prepared in conformity with the requirements of the Uniform Standards of Professional Appraisal Practice, current as of the date of the appraisal. 9 I have made a personal physical inspection of the property that is the subject of this report. 10 No one provided significant professional assistance to the person signing this report, unless otherwise indicated. 11 I have not performed any other services in conjunction with thew subject property within the prior 3 years. George Hatch #AG006455 Certified General Appraiser Date of Report: 04/16/2016 Personal Inspection: Interior/Exterior -9 Attachment No. 2 16-03102 PLAT MAP 1 DETAIL 'A' y NO SCALE I L -STREET - -t — i Q am r /w tom 3 CO CID m • CD CED •®.� r--- an., t SMUT • —4 61 IIItS11PWAS PREPARED FOR ASSESSMENT PUPi" ASSUMEO FOR IRE ACCURACY OF IRE DATAiIi MAY NOT COMPLY WIT!I LOCAL SUBOMSION sl a I r. UCI. Ar) Portion of city 560-210-44 0.99 POR QSEC to 5: r' •\41.22 1 1 1-- liS CD 3 MAP 1481 - LEIGHTON SUB MAP 166 — RHO DE LA NACION — POR QSEC 153 ROS 1349614155 CD CD 250 (I) 560-21 et 'A 0.: • �� o • CID ( :15 1837 A Ave 560-210-17 r1I• 153 /33 >r(o ) PO ' d ® 2 3 ICD 1#i' 13 y 166 M 1481 2/ • • • • • • •1 '7. Attachment No. 2 16-03102 SUBJECT PHOTOS Front ( 1835) North portion of City's Parcel is in the foreground Subject Front (1847) South portion of City's Parcel is in the foreground A Ave - Northbound Subject Front (1837) Center portion of City's Parcel is in the foreground A Ave - Southbound I Attachment No. 2 SUBJECT PHOTOS 10ft deep x 165ft wide relative to the street Street right of way appears to start at fence line, not at the edge of the sidewalk Attachment No. 2 16-03102 LOCATION MAP- SALES DATA SH[ r() pig `ls, .134 E St1+st w E6�`St tb' I.1at1cnal (_ llty m tuns` z E4iti S1 SUBJECT Bell Honda .1 r.1'10 n.co e +•>_ 0 19 St Et 'St L5' eh �fP muas La Hacoenda L.::.JI Hacienda Restaurant to\I\S\ Lincoln Acres I i Attachment No. 2 16-03102 SALES COMPARABLES Site #1- 420 W 21st St Site #2- 2501 E18th St el Site #3- 2752 E 18th St Sale #1- 1901 D Ave Sale #2- 1330 E 6th St Sale #3 - 1304 Scott Dr Attachment No. 3 6-03102 PLAT MAP JI e OCT AIL NO SCALE IeDA ..v - _.s-fr.._ ..a - - - STREET — - -r a ri lL.: M' ,'d • 1. � 1 t ©T i 6 . POR ,s 1 O % a i S 4p. OSEC . : CS).7. T v 1 20= m aD 1- CDvf OD ® o D;J p • ID • es CCD --V tH15 MAP WAS PREPARED FOR ASSESSMENT PURPOSES ONLY NO LIABILITY 15 ASSUMED FOR THE ACCURACY OF THE DATA SHOWN ASSESSORS PARCELS MAY NOT COMPLY WITH LOCAL SLISDIVISION OR 6URTANG 06d!W+CES 2 a. tr .to ASX1'�OiYl'ld c�r.A1 45 POR NIIMIL\ 0 t6 h f • ti . - •, 0 L ~ . 40 / \4 1.22 tioy 3 ti m MAP 1481 - LEIGHTON SUB MAP 166 - RHO DE LA NACION - POR CSCC ROS 1349e,14155 QSEC .0 153 its -2 , Is 1837 A Ave 580-210-17 CHANGES But �IIP OLD NEEN1CUT � yI i1 7 .`f 4.41 345 4P`33 40{4 •rr 1tS CS ) 2 3 M 1481 2 2/ 20 c 1. 0 .w •o t Z LAJ RESOLUTION NO. 2018 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY MANAGER TO EXECUTE A PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS FOR THE SALE OF A 500 SQUARE FOOT PARCEL OF VACANT LAND LOCATED ALONG "A" AVENUE IN FRONT OF 1835 "A" AVENUE IN NATIONAL CITY TO THE BETTY WINONA MCLINTOCK REVOCABLE TRUST WHEREAS, there is a strip of City -owned property (the "Property") along "A" Avenue running between the sidewalk and the owners property line (APN 560-210-44) that is 10-feet wide and 165-feet long fronting three privately owned lots; and WHEREAS, in 1959, a strip of City -owned property along "A" Avenue running between the sidewalk and the owner's property line (APN 560-210-44) that is 10-feet wide and 165-feet long fronting three privately owned lots (the "Property") was closed and vacated as a public street by the City Council; and WHEREAS, the Betty Winona McLintock Revocable Trust, the owner of 1835 "A" Avenue, desires to purchase a portion of the Property that totals 500 square feet in front of the their property for the amount of $4,000 and the cost of all escrow and closing fees up to $2,000. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the City Manager to execute a Purchase and Sale Agreement and Joint Escrow Instructions for the sale of a 500 square foot parcel of vacant land located along "A" Avenue in front of 1835 "A" Avenue in National City to the Betty Winona McLintorck Revocable Trust for the amount of $4,000 and the cost of all escrow and closing fees up to $2,000. PASSED and ADOPTED this 20th day of November, 2018. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney 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 BETTY MCLINTOCK REVOCABLE TRUST Purchase and Sale Agreement 1835"A" Avenue Greg Rose (Housing & Economic Development) forwarded a duplicate original Agreement to Betty McLintock Revocable Trust.