HomeMy WebLinkAboutCostco Wholesale Corporation with SA 2015-01-21 Lau-5� jVo 14►s - S-3
REAL ESTATE PURCHASE AND SALES AGREEMENT
By and Between
SUCCESSOR AGENCY,
apolitical subdivision of the State of California and
the successor to the former Ukiah Redevelopment Agency
and
COSTCO WHOLESALE CORPORATION,
a Washington corporation
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TABLE OF CONTENTS
Page
100 , SUBJECT OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
101 . Purpose of This Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . . l
102 . The Site. . , I I I I I I I I I I I I I I . 1 0 0 0 0 6 6 1 6 0 0 a I I I I I I I I I I I I I . I I 1 4 0 0 0 1 4 4 1 6 1 1 1 0 0 0 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 . I I I I I I I I I I . I I I I I . l
103 . Parties to This Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
103 . 1 Successor Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1032 Costco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
104 . Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
200 . DISPOSITION OF THE SITE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
201 . Sale and Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
202 . Escrow , , , , , . . . . . . I ' ll . . . . . . . . . . . . . . . I ' ll . . . . 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
a
203 . Conveyance of Title and Delivery of Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
204. Form of Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
205 . Conditions Precedent to Conveyance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
205 . 1 Conditions for Benefit of Costco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
205 .2 Conditions for the Benefit of Successor Agency. . . . . . . . . . . . . . . 44 . . . . . . . . . . 00 . . . . . . . . . . . 7
206 . Condition of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
206 . 1 Title Commitment and Title Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
206 .2 Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
206 . 3 Review of Title Commitment and Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
206 .4 Successor Agency' s Right to Cure Title Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
206 . 5 Monetary Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
206 . 6 Title Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
207 . Time for and Place of Delivery of Deed and Closing Documents . . , , , , . . . . . . . . 9
208 . Payment of the Purchase Price and Recordation of Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
209 . Title Insurance . . I I I I I I I I I . . . . . . . . . . . . . . 0 0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 10
210 . Taxes and Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
211 . Conveyance Free of Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
212 . Inspections ; Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 �
212 . 1 Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
212 . 2 Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
213 . Condition of the Site, , . . . . . . . . . . . 11 . . . . . . . . . . . . . . . . . . . . . . . 0000 * . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 11
214 . Representations, Warranties and Covenants . . . . " I . . . . . . . . . . . . . . . . . . . 4444 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
214. 1 Successor Agency' s Representations, Warranties and Covenants . . . . . . . . . . . . 12
214 . 2 Costco ' s Representations, Warranties and Covenants I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
214 . 3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
215 . Closing Date Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4046 . . . . . . . . . . 17
216 . Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
300 , DEFAULTS , REMEDIES AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
301 . Defaults - General . . go I I I . . . . . . . . . 14664 . . . . . . . 0400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I ' ll , . . . . . . I ' ll , . . . . . . . I I . . . . 44 . 17
302 . Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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AGREEMENT
THIS AGREEMENT is entered into as of the day of 01-11, (the "Effective
Date"),by and between the Successor Agency to the forme edevelopment Agency for the City
of Ukiah, a public body, corporate and politic, organized and existing under Health and Safety
Code §34173 ("Successor Agency"), and Costco Wholesale Corporation, a Washington
corporation("Costco"). Successor Agency and Costco agree as follows:
100. SUBJECT OF AGREEMENT
101. Purpose of This Agreement The purpose of this Agreement is to effectuate the
conveyance from Successor Agency to Costco of certain real property owned by Successor
Agency in the City of Ukiah (the "Site"). The City of Ukiah, a general law municipal
corporation ("City"), Costco and the Redevelopment Agency of the City of Ukiah (the "RDA")
entered into that certain Exclusive Negotiating Agreement (the "ENA") dated January 20, 2011,
in contemplation of the possible sale of the Site by the RDA to Costco. The RDA has since been
dissolved, as required by California law, and Successor Agency has succeeded to certain rights
and obligations of the RDA, including ownership of the Site. This Agreement is in furtherance
of the objectives of the ENA, and upon its approval and execution by Successor Agency and
Costco, this Agreement will replace and supersede the Successor Agency's obligations under the
ENA.
102. The Site The Site is that area within a portion of the Airport Industrial Park
known as the Redwood Business Park shown on the Map (Attachment No. 1) and is more
particularly described in the Legal Description of the Site (Attachment No. 2).
103. Parties to This Agreement
103.1 Successor Agency The office of Successor Agency is located at 300
Seminary Avenue, Ukiah, California 95482. Successor Agency's fax number is 707-463-6204,
Attn: Executive Director. "Successor Agency" as used in this Agreement, includes Successor
Agency and any assignee of or successor to its rights, powers and responsibilities with respect to
the Site.
103.2 Costco The principal office of Costco is located at 999 Lake Drive,
Issaquah, Washington 98027. Costco's fax number is 425-313-8114, Attn: Seth S. Katz.
Wherever the term "Costco" is used herein, such term shall include any permitted nominee,
assignee or successor in interest as herein provided.
104. De osit Pursuant to the ENA, Costco previously has delivered to First American
Title Insurance Company a deposit in the amount of FIFTY THOUSAND DOLLARS ($50,000)
(the "Deposit"), which Deposit shall continue as security for the performance of the obligations
of Costco under this Agreement to be performed prior to the return of the Deposit to Costco or its
application to the Purchase Price (defined in Section 201 hereof) or its retention by Successor
Agency. Any interest earned on the Deposit shall become part of the Deposit. Upon termination
of this Agreement by Successor Agency as provided in Section 305.2 hereof, the Deposit
(including all interest paid thereon) shall be retained by Successor Agency as liquidated damages
as provided therein. Upon termination of this Agreement by Costco as provided in Section 305.1
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hereof, the Deposit (including all interest paid thereon) shall be returned to Costco as provided
therein. If this Agreement shall not have been theretofore cancelled or terminated, or the Deposit
shall not have been returned to Costco , the Deposit shall be applied to the Purchase Price (as
defined in Section 201 hereof) at Closing (as defined in Section 202 hereof) .
200. DISPOSITION OF THE SITE
201 . Sale and Purchase In accordance with and subject to all the terms, covenants
and conditions of this Agreement, Successor Agency agrees to sell, and Costco agrees to
purchase for development, the Site for the sum of Site for the sum of TWO MILLION ONE
HUNDRED SEVENTY-FIVE THOUSAND EIGHT HUNDRED FIFTY-TWO DOLLARS
($2 , 175 , 852 . 00) (the " Purchase Price " ) . Costco acknowledges and understands that the Site
will be conveyed to Costco for purposes of development pursuant to this Agreement and not for
speculation in undeveloped land .
202. Escrow Costco heretofore has opened an escrow with the Seattle National
Commercial Services Office of First American Title Insurance Company ("Title Company")
who shall coordinate the escrow with Redwood Empire Title Company (the " Escrow Agent") .
This Agreement constitutes the joint escrow instructions of Successor Agency and Costco , and a
duplicate copy of this Agreement shall be delivered to the Title Company and the Escrow Agent
promptly following the Effective Date . Successor Agency and Costco shall provide such
additional escrow instructions as shall be necessary and consistent with this Agreement. The
Escrow Agent hereby is empowered to act under this Agreement and, upon indicating its
acceptance of the provisions of this Section 202 in writing, delivered to Successor Agency and to
Costco within five (5) days after the opening of the escrow, shall carry out its duties as Escrow
Agent hereunder. Costco shall deposit with the Escrow Agent the Purchase Price for the Site in
accordance with the provisions of Section 208 of this Agreement. Costco shall also pay in
escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow
Agent has notified Costco of the amount of such fees, charges and costs, but not earlier than ten
( 10) days prior to the scheduled time for the close of escrow ("Closing" or the "Closing Date") :
1 . One-half ( 1 /2) of the escrow fee; and
2 . The portion of the premium for the title insurance policy or special endorsements
to be paid by Costco as set forth in Section 209 of this Agreement.
Successor Agency shall timely and properly execute, acknowledge and deliver a deed
conveying to Costco title to the Site in accordance with the requirements of Section 204 of this
Agreement, together with an estoppel certificate certifying that Costco has completed all acts
(except deposit of the Purchase Price) necessary to entitle Costco to such conveyance, if such be
the fact. Successor Agency shall pay in escrow to the Escrow Agent, or have charged against
sales proceeds otherwise disbursable to Successor Agency, the following fees, charges and costs
promptly after the Escrow Agent has notified Successor Agency of the amount of such fees,
charges and costs, but not earlier than ten ( 10) days prior to the scheduled time for the Closing:
1 . Costs necessary to place the title to the Site in the condition for conveyance
required by the provisions of this Agreement;
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2 . One-half ( 1 /2) of the escrow fee;
3 . Cost of drawing the deed ;
4 . Recording fees ;
5 . Notary fees ;
6 . The premium for an A. L.T. A . standard title insurance owners policy to be paid by
Successor Agency as set forth in Section 209 of this Agreement, and the premiums for any
endorsements acceptable to Costco and requested by Successor Agency to insure over title
exceptions Successor Agency otherwise is required to remove from title to the Site;
7 . Ad valorem taxes, if any, upon the Site for any time prior to conveyance of title;
and
8 . Any state, county or city documentary transfer tax .
Following delivery of a deed to the Escrow Agent by Successor Agency pursuant to
Section 207 of this Agreement and the deposit by Costco with the Escrow Agent of the Purchase
Price and any other closing funds required from Costco, the Escrow Agent shall record such deed
when title can be vested in Costco in accordance with the terms and provisions of this
Agreement. The Escrow Agent shall buy, affix and cancel any transfer stamps required by law
and pay any transfer tax required by law. Any insurance policies governing the Site are not to be
transferred.
The Escrow Agent is authorized to :
1 . Pay and charge Successor Agency and Costco, respectively, for any fees, charges
and costs payable under this Section 202 . Before such payments are made, the Escrow Agent
shall provide Successor Agency and Costco with settlement statements itemizing all fees,
charges and costs necessary to clear title and close the escrow, which shall be subject to their
respective approval prior to and as a condition to Closing;
2 . Disburse funds and deliver the deed and other documents to the parties entitled
thereto when the conditions of this escrow have been fulfilled by Successor Agency and Costco ;
and
3 . Record any instruments delivered through this escrow, if necessary or proper, to
vest title in Costco in accordance with the terms and provisions of this Agreement.
All funds received in this escrow shall be deposited by the Escrow Agent with other
escrow funds of the Escrow Agent in an interest-bearing general escrow account or accounts
with any state or national bank doing business . Such funds may be transferred to any other such
general escrow account or accounts . All disbursements shall be made by check of the Escrow
Agent. All adjustments shall be made on the basis of a thirty (30) day month.
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If this escrow is not in condition to close before the Closing Date established in
Section 203 of this Agreement, either party who then shall have fully performed the acts to be
performed prior to the Closing Date may, in writing, terminate this Agreement in the manner set
forth in Section 305 . 1 or 305 . 2 hereof, as the case may be, and demand the return of its monies,
papers or documents . Thereupon all obligations and liabilities of the parties under this
Agreement shall cease and terminate in the manner set forth in Section 305 . 1 or 305 . 2 hereof, as
the case may be. If neither Successor Agency nor Costco shall have fully performed the acts to
be performed before the time for conveyance established in Section 203 , no termination or
demand for return shall be recognized until ten ( 10) days after the Escrow Agent shall have
mailed copies of such demand to the other party or parties at the address of its or their principal
place or places of business . If any objections are raised within the ten ( 10) day period, the
Escrow Agent is authorized to hold all monies, papers and documents with respect to the Site
until instructed in writing by both Successor Agency and Costco or upon failure thereof by a
court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon
as possible. Nothing in this Section 202 shall be construed to impair or affect the rights or
obligations of Successor Agency or Costco to specific performance.
Any amendment of these escrow instructions shall be in writing and signed by both
Successor Agency and Costco . At the time of any amendment, the Escrow Agent shall agree to
carry out its duties as Escrow Agent under such amendment. All communications from the
Escrow Agent to Successor Agency or Costco shall be directed to the addresses and in the
manner established in Section 401 of this Agreement for notices, demands and communications
between Successor Agency and Costco .
The liability of the Escrow Agent under this Agreement is limited to performance of the
obligations imposed upon it under Sections 202 to 209, both inclusive, of this Agreement .
Except as provided in Section 502 hereof, (a) neither Successor Agency nor Costco shall be
liable for any real estate commissions or brokerage fees that may arise therefrom, and (b)
Successor Agency and Costco each represent that neither has engaged any broker, agent or finder
in connection with this transaction.
203 . Conveyance of Title and Delivery of Possession Provided that Costco is not in
default under this Agreement and all conditions precedent to such conveyance have occurred,
and subject to any extensions of time pursuant to this Agreement, the Closing Date for
conveyance to Costco of title to the Site shall be completed within the time period specified in
the Schedule of Performance (Attachment No . 3 ) . Successor Agency and Costco agree to
perform all acts necessary to conveyance of title in sufficient time for title to be conveyed in
accordance with the foregoing provisions . Possession shall be delivered to Costco concurrently
with the conveyance of title, except that limited access may be permitted before conveyance of
title as permitted in Section 213 of this Agreement. Costco shall accept title and possession upon
conveyance of title.
204 . Form of Deed Successor Agency shall convey to Costco title to the Site in the
condition provided in Section 206 of this Agreement by a grant deed (the "Grant Deed") in
substantially the form set forth in Attachment No . 4 .
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205 . Conditions Precedent to Convevance
205. 1 Conditions for Benefit of Costco The obligation of Costco to close the
transaction set forth in this Agreement is subject to the fulfillment or waiver, in Costco ' s sole
and absolute discretion, of the following conditions on or prior to the Closing Date, each of
which shall continue as a condition until Costco notifies Successor Agency in writing (with
copies to Escrow Agent and City), within the time period specified in the Schedule of
Performance (Attachment No . 3 ), that all such conditions have been satisfied or waived (the
"Purchase Notice") . However, any condition that Costco has deemed to be satisfied but has not
expressly waived in writing shall continue as conditions until Closing ("Continuing
Conditions"), and there shall have been no material adverse change to any of the other
conditions prior to Closing.
a. There shall have been no material adverse change to the physical
or title conditions of the Site, and the Site and its title remain in substantially the condition
approved by Costco prior to its execution of this Agreement;
b . Costco has received approval for construction plans and design
development drawings for the improvements on the Site and notice that the building permit(s)
necessary for development of the Site may be issued, subject only to applicable fees ;
C. Costco has obtained or received all approvals required under the
California Environmental Quality Act ("CEQA") and any and all other governmental
entitlements and approvals required for the development, construction and operation of the Site
as a Costco warehouse store, all conditions of which entitlements and approvals and all
requirements for on-site and off-site improvements or services, in-lieu fees or payments,
dedication or reservation requirements, water rights acquisition costs, local improvement district
costs, connection charges, assessments, mitigation fees, impact fees, permit fees and any other
similar requirements, fees or charges imposed by any governmental entity or utility service
provider in connection with the approvals shall be subject to Costco ' s approval in its sole and
absolute discretion;
d. Costco has obtained a commitment for an ALTA policy of title
insurance acceptable to Costco in the full amount of the Purchase Price;
e. Successor Agency is not in material default under any other
provision of this Agreement beyond any applicable cure period, and without limiting the
generality of the foregoing, has obtained or received all approvals required under CEQA and any
and all other governmental entitlements and approvals required for the consummation of the
purchase and sale contemplated by this Agreement;
f. Costco has notified Successor Agency in writing (the "Going-
Forward Notice") that it has determined that it is satisfied with the form of all documentation
and the status of performance and conditions under that certain Agreement for Construction of
Improvements, entered into between Costco and City, effective concurrently with the Effective
Date hereof (the "Improvement Agreement") ; and the Going-Forward Notice may be prior to
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or concurrent with the Purchase Notice and, if concurrent, may be included in the Purchase
Notice;
g. Successor Agency shall have obtained final confirmation, to the
reasonable satisfaction of Costco , that Successor Agency has all necessary approvals from the
Oversight Board and the State Department of Finance to convey the Site to Costco as
contemplated by this Agreement;
h. Costco shall have received and approved all items and
documentation provided in this Agreement to be delivered to Costco ;
i . The representations and warranties of Successor Agency contained
in this Agreement shall be true and correct in all material respects as of the Closing;
j . Subject to Section 404, no litigation, referendum, moratorium,
statute, order, regulation, ordinance, legislation, judgment, ruling or decree shall have been
enacted, adopted, issued or entered, or shall be pending or in effect, that could adversely affect
the Site or Costco ' s ability to develop, construct, open and operate its intended project in
accordance with Costco ' s schedule; and
k. The Site shall have been established as a single, legally subdivided
lot, separate and apart from any other real property, which condition may not be waived, and as a
separate tax parcel .
For purposes of this Agreement, including, without limitation, Sections
205 . 1 and 205 .2 hereof, approvals shall not be deemed to have been " obtained " or "issued" until
the period of time (if any) to contest or appeal any such issuance has passed without the filing of
a contest or appeal or, if a contest or appeal has been filed, after the issuance of a final and non-
appealable order, decision or judgment (a "Final Judgment") confirming the issuance of the
relevant approvals without substantial modifications or conditions that are unacceptable to the
benefited party.
Without limiting its other remedies under this Agreement, Costco, in its
sole and absolute discretion, may waive any of the foregoing conditions other than g. and k. that
Costco determines are not satisfied to Costco ' s satisfaction (or will not be timely so satisfied), or
upon such determination Costco may terminate this Agreement . Furthermore, if the
Improvement Agreement is terminated for any reason whatsoever, Costco shall have the right to
proceed with this Agreement or to terminate this Agreement at any time after such termination.
Termination of this Agreement by Costco shall be effective upon delivery of a notice of
termination from Costco to Successor Agency and Escrow Agent, and upon delivery of such
termination notice, the Deposit shall be returned to Costco .
. It is understood that neither Costco nor Successor Agency shall have the
right to terminate this Agreement based on the failure to obtain a Final Judgment required for
Close of Escrow until available judicial remedies have been exhausted through the trial court
level , unless parties both agree that judicial action is not warranted . Costco unilaterally may
determine not to pursue any appeal beyond the trial court level .
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205 .2 Conditions for the Benefit of Successor Agency. The following are
Successor Agency's conditions to conveyance of the Site :
a. There has been no material adverse change in the financial
condition of Costco such that Costco no longer would have the necessary equity capital for
acquisition and development of the Site for Costco ' s intended project;
b . Successor Agency shall have obtained final confirmation that
Successor Agency has all necessary approvals from the Oversight Board and State Department
of Finance to convey the Site to Costco as contemplated by this Agreement ; and
C, The Site shall have been established as a single, legally subdivided
lot, separate and apart from any other real property, which condition may not be waived .
206. Condition of Title Successor Agency shall convey to Costco fee simple title to
the Site free and clear of all recorded liens, encumbrances, assessments, leases and taxes except
as have been approved or waived by Costco, as follows :
206. 1 Title Commitment and Title Policy By the time specified in the
Schedule of Performance, Costco shall obtain, at Successor Agency' s expense, a current title
commitment (the "Title Commitment" ) for an owner' s extended coverage policy of title
insurance, on the American Land Title Association ("ALTA") Form 1402 . 06 ALTA Owner' s
Policy (6- 17-06) (the "Title Policy") , to be issued by Title Company at its then current standard
rates without any special premium, in an aggregate amount of not less than the Purchase Price, with
copies of all exceptions and encumbrances to title shown therein, committing Title Company to
issue such Title Policy to Costco . Costco shall deliver a copy of the Title Commitment to
Successor Agency. Costco ' s obligation to consummate the purchase and sale herein contemplated
shall be subject to and conditional upon Costco ' s receipt at the Closing of the Title Policy, together
with such endorsements thereto as Costco shall reasonably request, including, without limitation,
survey, access, separate tax parcel, subdivision, owner' s comprehensive and contiguity
endorsements (or of Title Company' s irrevocable commitment to issue the Title Policy with
requested endorsements), subject only to those exceptions expressly approved in writing by Costco,
if any, or otherwise expressly deemed to be approved by Costco hereunder, if any (collectively, the
"Permitted Exceptions") . The Title Policy shall insure Costco that, upon consummation of the
purchase and sale herein contemplated, Costco will be vested with good, fee simple, marketable and
insurable title to the Site, subject only to the Permitted Exceptions, and Successor Agency
covenants to convey such title to Costco at the Closing. Successor Agency agrees to furnish Title
Company with such customary affidavits and indemnities as may be required by Title Company in
order to issue the Title Policy as aforesaid, without any exception for unfiled and unrecorded
materialmen' s and mechanics ' liens and parties in possession.
206.2 Survey By the time specified in the Schedule of Performance, Costco
shall obtain, at Costco ' s expense, an ALTA survey of the Site, dated no earlier than thirty (30)
days prior to the date of delivery to Costco (the " Survey " ) , certified to Costco and Title
Company, prepared by a surveyor licensed in the state where the Site is located who is selected
by Costco ( " Surveyor" ) . The Survey shall be in form and substance sufficient to permit Title
Company to issue the Title Policy with only such exceptions as may have been approved by
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Costco as Permitted Exceptions) . Costco may, at Costco ' s expense, cause the Survey to be
updated (the "Updated Survey") no earlier than thirty (30) days prior to the Closing, which
Updated Survey also shall be in form and substance sufficient to permit Title Company to issue
the Title Policy without boundary, encroachment or survey exceptions (except to the extent that
the same have been approved by Costco as Permitted Exceptions), and to delete from the Title
Policy the standard exceptions as to unrecorded easements, visible and apparent easements and
other matters which would be disclosed by an inspection of the Site.
206.3 Review of Title Commitment and Survey Costco shall have until 5 : 00
p .m. local time in the Governing Jurisdiction on the date that is the end of the time period
specified in the Schedule of Performance (the "Title Inspection Period") to review and
comment on the exceptions and matters contained in or disclosed by the Title Commitment and
Survey. Costco shall be entitled, in its sole and absolute discretion, to terminate this Agreement
if Costco objects to any of the matters disclosed by the Title Commitment or Survey (each, an
"Objection" and collectively, the "Objections") . In addition, Costco shall be entitled, in its sole
and absolute discretion, to condition its acquisition of the Site upon Successor Agency' s release,
discharge or removal of each Objection prior to the Closing Date, and the deletion of each
Objection from the Title Policy to be issued at the Closing. Prior to the expiration of the Title
Inspection Period, Costco shall provide written notice to Successor Agency (the "Objection
Notice") of each Objection which Costco requires to be released, discharged or removed prior to
the Closing Date. Any matters revealed by the Title Commitment and/or Survey to which
Costco does not object before the end of the Title Inspection Period shall be deemed to be
Permitted Exceptions. Following Costco ' s initial title examination, Costco shall have until the
Closing Date to reexamine title to the Site and to give Successor Agency notice of any additional
Objections (other than the Permitted Exceptions previously approved by Costco) disclosed by such
reexamination and which were not filed and indexed of record as of the date of the initial
examination or not otherwise reflected in the Title Commitment. In addition, Costco shall have the
right to object, in the same manner set forth herein, to any matter shown on the Updated Survey
not previously shown on the preliminary Survey or approved as a Permitted Exception by
Costco .
206.4 Successor Agency' s Right to Cure Title Objections If Costco raises any
Objections in accordance with the procedures of Section 206 . 3 of this Agreement, then
Successor Agency shall have ten ( 10) days after the receipt of the Objection Notice to give
Costco written notice either that (i) Successor Agency shall remove any Objections prior to the
Closing at no cost to Costco, and Successor Agency shall promptly provide Costco with
evidence satisfactory to Costco of Successor Agency' s ability to so remove such Objections ; or
(ii) Successor Agency elects not to cause such Objections to be removed. If Successor Agency
fails to respond to the Objection Notice, Successor Agency shall be deemed to have agreed to
cause all of the Objections set forth in the Objection Notice to be removed on or before the
Closing Date. If Successor Agency gives Costco notice under clause (ii) , then Costco may either
waive those Objections which Successor Agency has elected not to remove, in which event the
waived Objections shall be deemed to be Permitted Exceptions and this Agreement shall
continue in full force and effect, or terminate this Agreement by notice delivered to Successor
Agency and Escrow Agent on or before the Closing Date. If, by the Closing Date, Costco fails
to respond to Successor Agency' s election to proceed under clause (ii) , then Costco shall be
deemed to have terminated this Agreement, and the Deposit shall be returned to Costco .
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206.5 Monetary Encumbrances The phrase "Monetary Encumbrances " as
used herein means encumbrances or defects to title which by their terms require the payment of
money (in an ascertainable amount) , whether in installments or at a fixed time or otherwise,
including, without limitation, mortgages, deeds of trust, mechanic ' s or materialmen' s liens, and
liens associated with public improvement districts and special assessments . Notwithstanding
anything herein to the contrary, Successor Agency shall not have the right under Section 206 . 4 to
elect not to cure any Monetary Encumbrances affecting title to the Site. Successor Agency
covenants to remove all Monetary Encumbrances prior to or at the Closing.
206.6 Title Fees In the event this Agreement is terminated pursuant to this
Section 206 or any other provision of this Agreement other than by reason of a default by any
party under this Agreement, any cancellation fee or other costs of Title Company shall be borne
in equal shares by the parties . In the event this Agreement is terminated pursuant to this Section
206 or any other provision of this Agreement by reason of a default by any party under this
Agreement, any cancellation fee or other costs of Title Company shall be borne by the defaulting
party.
207. Time for and Place of Delivery of Deed and Closing Documents Subject to
any mutually agreed upon extensions of time and to the provisions of Sections 215 and 404,
Successor Agency shall deposit with the Escrow Agent by the time or times specified in the
Schedule of Performance the following :
a. Grant Deed . The Grant Deed conveying to Costco fee title to the Site
subject to no encumbrances or defects except for the lien of real property taxes for the current
year prorated to the Closing Date and the Permitted Exceptions .
b . FIRPTA Certificate. A certificate of nonforeign status and of partnership
or California residency/permanent place of business status in form required by federal income
tax regulations and the California Revenue and Taxation Code and reasonably acceptable to
Costco . In the event Successor Agency does not deliver such certificate to Costco at the Closing
or does not otherwise sufficiently evidence Successor Agency' s exemption from withholding
requirements, Costco may withhold such amounts as may be required under applicable law in
order for Costco to avoid any liability for Successor Agency' s tax obligations .
C, Authority Documents . Certificates, duly adopted resolutions, incumbency
certificates, good standing certificates and other evidence satisfactory to Title Company of the
authorization of the sale of the Site to Costco and of the authority of the person(s) executing and
delivering documents at the Closing on behalf of Successor Agency.
d. Successor Agency' s Certificate. A certificate certifying that each and
every warranty and representation made by Successor Agency in this Agreement is true and
correct in all material respects as of the Closing as if made by Successor Agency at such time,
except as shall have been disclosed to and waived by Costco in writing.
e. Owner' s Affidavit. An affidavit in form satisfactory to Title Company for
the issuance of the Title Policy without exception for mechanics ' , materialmen ' s or other
statutory liens, parties in possession and other standard title exceptions .
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f. Closing Statement. A closing statement setting forth in reasonable detail
the financial transaction contemplated by this Agreement, including, without limitation, the
Purchase Price, all prorations, the allocation of costs specified herein and the source, application
and disbursement of all funds (the "Closing Statement") .
g. Additional Documents . Copies of all other surveys, plans and
specifications, permits and approvals and other similar documents which pertain to the Site
and/or the approvals and entitlements for the Site which may be in the possession of Successor
Agency or under its control .
h. Miscellaneous . Such other items , documents, affidavits, real property
transfer tax returns, legal opinions, instruments and certificates as Costco reasonably requires or
as may be necessary or desirable to consummate the sale of the Site and to induce Title Company
to issue the Title Policy, including, if applicable, documentation to effectuate Costco ' s 1031
exchange.
208. Payment of the Purchase Price and Recordation of Deed Within the time
specified in the Schedule of Performance, Costco shall deposit the Purchase Price for the Site
and other sums required hereunder with the Escrow Agent prior to the date for conveyance
thereof, provided that the Escrow Agent shall have notified Costco in writing that Successor
Agency has deposited with Escrow Agent all of the closing documents to be deposited by
Successor Agency pursuant to Section 207 , including, without limitation, the Grant Deed,
properly executed and acknowledged by Successor Agency, and that title is in condition to be
conveyed in conformity with the provisions of Section 206 of this Agreement. Upon the
Closing, the Escrow Agent shall file the Grant Deed for recordation among the land records in
the Office of the County Recorder of Mendocino County, shall deliver the Purchase Price and
other required sums to Successor Agency and shall deliver to Costco a title insurance policy
insuring title in conformity with Section 209 of this Agreement.
209. Title Insurance Costco shall obtain and deliver the Survey to Title Company and
Escrow Agent so as to permit Title Company to issue the title policy to Costco in accordance
with this Section 209 , without the inclusion of a survey exception. Concurrently with
recordation of the Grant Deed, Escrow Agent shall provide and deliver to Costco a title insurance
policy issued by the Title Company insuring that title is vested in Costco in the condition
required by Section 206 of this Agreement. The Title Company shall provide Successor Agency
with a copy of the title insurance policy, and the title insurance policy shall be in the amount of
the Purchase Price of the Site. Successor Agency shall pay for that portion of the title insurance
premium attributable to an A. L.T. A. standard owners form policy of title insurance in the amount
of the Purchase Price of the Site and for any endorsements acceptable to Costco to remove or
insure over exceptions that are not Permitted Exceptions . Costco shall pay for all other
premiums for title insurance coverage or special endorsements .
210 . Taxes and Assessments Ad valorem taxes and assessments on the Site, if any,
and taxes upon this Agreement or any rights hereunder, levied, assessed or imposed for any
period commencing prior to conveyance of title shall be borne by Successor Agency. All such
ad valorem taxes and assessments levied or imposed for any period commencing after closing of
the escrow and approved by Costco as Permitted Exceptions shall be paid by Costco . Any
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assessments of record against the Site but not included among the Permitted Exceptions shall be
paid in full by Successor Agency on or before Closing.
211 . Conveyance Free of Possession The Site shall be conveyed free of any
possession or right of possession by any person except that of Costco and the easements of
record .
212. Inspections ; Indemnities .
212. 1 Inspections . Costco has conducted a Phase I Environmental Study and
Soils Analysis of the Site and is satisfied with the condition of the Site as of the date Costco has
executed this Agreement. Costco agrees it will rely solely on its own investigation of the Site in
its current physical condition, and, except as in this Agreement otherwise specifically provided,
with no warranties, express or implied, as to the physical condition thereof, the presence or
absence of any latent or patent condition thereon or therein, including, without limitation, any
Hazardous Materials (as defined herein) thereon or therein and any other matters affecting the
Site.
212.2 Indemnities
a. Indemnification by Costco . Costco indemnifies and agrees to
defend and hold harmless Successor Agency and its successors and assigns from and against any
and all claims, expenses, costs, damages, losses and liabilities (including reasonable attorneys '
fees) that may at any time be asserted against or suffered by Successor Agency and/or its
successors and/or assigns as a result of, on account of or arising from any obligation, claim, suit,
liability, contract, agreement, debt, encumbrance, or environmental or physical condition of the
Site, first created, arising or accruing after the Closing Date relating to the Site or its operations,
except to the extent that such liability arises by, through or under Successor Agency.
b . Indemnification by Successor A ency. Except as provided in
Section 212 . 1 , Successor Agency indemnifies and agrees to defend and hold harmless Costco
and its successors and assigns from and against any and all claims, expenses, costs, damages,
losses and liabilities (including reasonable attorneys ' fees) that may at any time be asserted
against or suffered by Costco (and/or its successors and/or assigns) or the Site, or any part
thereof, whether before or after the Closing Date, as a result of, on account of or arising from (i)
any breach of any covenant, representation, warranty or agreement on the part of Successor
Agency to Costco made herein or in any instrument or document delivered pursuant to this
Agreement, and/or (ii) any obligation, claim, suit, liability, contract, agreement, debt,
encumbrance, or environmental or physical condition of the Site, created, arising or accruing on
or prior to the Closing Date, regardless of when asserted, relating to the Site or its operations
(including, without limitation, any and all liabilities, including penalties, for federal or state
income taxes or other taxes , which are not assumed by Costco in writing) , except to the extent
that such liability arises by, through or under Costco .
213 . Condition of the Site Except as may be otherwise specifically provided in this
Agreement, the Site shall be conveyed from Successor Agency to Costco in an " as is " condition.
Successor Agency shall not be responsible for any items of site work. Costco heretofore has
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inspected and approved, and between the date of this Agreement and the date of recordation of
the Grant Deed may continue, at Costco's sole expense, to inspect for any material adverse
changes subsequent to such approval, the soil conditions of the Site and the suitability of such
soil conditions for the improvements to be constructed by Costco . During the term of this
Agreement prior to the conveyance of the Site to Costco , representatives of Costco shall have (i)
access to all data and information on the Site available to Successor Agency, but without
warranty or representation by Successor Agency as to the completeness, correctness or validity
of such data and information, and (ii) the right of access to the Site at all reasonable times for the
purpose of obtaining data and making surveys and tests necessary to carry out this Agreement.
Costco shall indemnify, defend and hold Successor Agency harmless from any injury, liability,
cost or damages arising out of any activity pursuant to this section. Notwithstanding the
foregoing hold harmless agreement, Costco shall have no liability to Successor Agency or to any
other person or entity by reason of, nor shall Costco have any duty to indemnify, defend or hold
any person or entity harmless from or against, any liens, claims , losses or liabilities (collectively,
"Costs"), including, without limitation, any claim for diminution in value of the Site or for
environmental remediation or clean-up costs, arising out of or in connection with the mere fact of
having discovered and/or reported (as may be required by law) any adverse physical condition,
title condition, environmental condition or other defect with respect to the Site. Any claim for
indemnification under this Section 213 must be made within one ( 1 ) year after the date of
Closing or termination of this Agreement. Any preliminary work undertaken on the Site by
Costco prior to conveyance of title thereto shall be done only after written consent of Successor
Agency and at the sole expense of Costco and in compliance with all required permits and other
legal requirements . Copies of data, surveys and tests obtained or made by Costco on the Site
shall be filed with Successor Agency. Any preliminary work by Costco shall be undertaken only
after securing any necessary permits from the appropriate governmental agencies .
214. Representations, Warranties and Covenants
214 . 1 Successor Agency ' s Representations, Warranties and Covenants .
Successor Agency represents, warrants and covenants to Costco :
(i) Power and Authority. Successor Agency is a public body,
corporate and politic, organized and existing under Health and Safety Code § 34173 , and is a
separate legal entity from the City or any other subdivision of the State, and the successor to the
RDA . Subject to Oversight Board and Department of Finance approvals, Successor Agency has
the authority and power to enter into this Agreement and has, or by the end of the time period
specified in the Schedule of Performance shall have, all necessary power and authority to
consummate the transaction provided for herein . This Agreement and all other documents
executed and delivered by Successor Agency constitute legal , valid, binding and enforceable
obligations of Successor Agency, and there are no claims or defenses, personal or otherwise, or
offsets whatsoever to the enforceability or validity of this Agreement . The persons executing
this Agreement on behalf of Successor Agency have been duly authorized to do so .
(ii) No Violations or Actions . The execution, delivery and
perfonnance by Successor Agency of its obligations under this Agreement will not conflict with
or result in a breach of any law, governmental rule, regulation, judgment, decree or order by
which Successor Agency or the Site is bound, or any contract to which Successor Agency is a
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party or by which Successor Agency or the Site is bound . There is no action, suit, proceeding or
investigation pending, or, to the knowledge of Successor Agency that may be threatened, before
any agency, court or other governmental authority which relates to the Site or the use thereof,
except for legal challenges under CEQA, City' s zoning ordinances or General Plan, state law
pertaining to zoning and land use approvals or Division 24, Part 1 . 85 of the Health and Safety
Code that have been or may be filed to challenge approval of the entitlements required by Costco
to fully perform under this Agreement, which are subject to Sections 205 . 1 .
(iii) Condemnation; Moratorium. There are no condemnation or
eminent domain proceedings pending, or to Successor Agency' s knowledge threatened or
contemplated, against the Site or any part thereof, and Successor Agency has not received any
notice, oral or written, of the desire of any public authority or other entity to take or use the Site
or any part thereof. Successor Agency shall give Costco prompt written notice of any actual, or
if known to Successor Agency any threatened or contemplated, condemnation or eminent
domain proceeding against any part of the Site. No moratorium, statute, order, regulation,
ordinance, legislation, judgment, ruling or decree of any court or governmental agency has been
enacted, adopted, issued, entered or is pending or in effect that could materially and adversely
affect the Site and/or Costco ' s ability to develop, open and operate its intended project.
(iv) Com lip ance. Upon the Closing, the Site will comply with all
applicable governmental requirements in respect of the use, occupation and construction thereof,
including, without limitation, environmental, zoning, platting and other land use requirements,
and Successor Agency has received no notice of and has no knowledge of any violations or
investigations relating thereto . There is no default or breach by Successor Agency under any
covenant, condition, restriction, right-of-way or easement which may affect the Site or any
portion thereof.
(v) Zoning and Use. No part of the Site is subject to any building or
use restriction which will restrict or prevent the contemplated use of the Site for Costco ' s
intended project. The Site is currently zoned PD — Airport Industrial Park/ Industrial / Auto
Commercial and Light Manufacturing / Mixed-Use and upon the Closing will be zoned Retail
Commercial . The Site is not located in any conservation or historic district. No buildings or
other improvements of any kind encroach on the Site.
(vi) Utilities . Gas, electric power, sanitary and storm sewer, telephone
and water service and facilities and all other utilities necessary for Costco ' s intended
development, use and operation of the Site are, or by the Closing will be, available to and
servicing the Site in quantities satisfactory to service the Site for the intended use. Costco may
connect with all such utilities by the payment of normal tap-on or connection fees . No condition
exists which would result in discontinuation of necessary sewer, water, electric, gas, telephone or
other utilities .
(vii) Work. No work has been performed or is in progress at, and no
materials have been furnished to , the Site which have not been paid for or will not be paid for in
full by prior to the Closing Date.
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e
(viii) Assessments . No special or general assessments have been levied,
other than as shown in the Title Commitment, or to the knowledge of Successor Agency are
threatened, against all or any part of the Site.
(ix) Access and Street Dedication. The streets, roads, highways and
avenues in front of or adjoining any part of the Site have been dedicated to and accepted by the
proper governmental authority and such governmental authority has the responsibility to
maintain such streets, roads, highways or avenues . The right of ingress and egress from the
public roadways to and from the Site is not restricted or limited in any manner. No condition
exists which would result in the termination or impairment of access to the Site.
(x) Leases ; Contracts ; Agreements ; Obligations . There are no leases
affecting any part of the Site. There are no management agreements, service contracts or other
agreements affecting the Site or the operation or maintenance thereof which will be binding upon
Costco after the Closing. There are no other obligations in connection with the Site, including,
without limitation, easements , declarations, use restrictions or other similar agreements, which
will be binding upon Costco after the Closing, except for those matters which have been
approved by Costco as Permitted Exceptions .
(xi) Foreign Person or Entity. Successor Agency is not a foreign
person, nonresident alien, foreign corporation, foreign partnership, foreign trust or foreign estate,
as those terms are defined in the Internal Revenue Code and the Income Tax Regulations
promulgated thereunder. Successor Agency is either (A) a partnership as determined in
accordance with Subchapter K of Chapter 1 of Subtitle A of the Internal Revenue Code, (B) a
resident of California, or (C) a corporation with a permanent place of business in California.
(xii) Bankruptcy Matters . Successor Agency has not made a general
assignment for the benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by its creditors, suffered the appointment of a receiver to take
possession of substantially all of its assets, suffered the attachment or other judicial seizure of
substantially all of its assets, admitted its inability to pay its debts as they come due or made an
offer of settlement, extension or compromise to its creditors generally.
(xiii) Marketable Title . Successor Agency has , as of the Effective Date,
good, marketable and indefeasible title to the Site. Without in any way limiting the generality of
the foregoing representation, Successor Agency further represents and warrants to Costco that
(A) no understanding, agreement (either express or implied) or reasonable expectancy of
agreement with respect to sale, lease or other transfer of the Site exists between Successor
Agency and any third party, and (B) Successor Agency is in no way restricted from negotiating
and entering into this Agreement with Costco and selling the Site to Costco .
(xiv) Prevailing Wage. To the best of its knowledge, no person or entity
has taken any action in regards to the Site that would make Costco ' s intended project subject to
the prevailing wage requirements codified in California Labor Code section 1720, et seq.
(xv) Hazardous Substances . Successor Agency warrants and represents
that, to the extent of its knowledge without any independent investigation :
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(I) the Site does not contain, and has not contained, any
Hazardous Substance;
(II) neither Successor Agency nor any prior owner, user or
occupant of the Site, has conducted or authorized the generation, transportation, storage,
treatment or disposal at or near or from the Site of any Hazardous Substance;
(III) there is no pending or threatened, litigation or proceeding
before any court or any governmental or administrative agency in which any person or entity
alleges the presence, release, threat of release, placement on, in or from the Site or any adjacent
property, or the generation, transportation, storage, treatment or disposal at the Site or any
adjacent property of any Hazardous Substance;
(IV) Successor Agency has received no notice of, or has no
actual or constructive knowledge that, any governmental authority or employee or agent thereof
is investigating, has determined or threatens to determine the presence of, release or threat of
release or placement on, in or from the Site or any adjacent property, or the generation,
transportation, storage, treatment or disposal at the Site or any adjacent property, of any
Hazardous Substance;
(V) there are no actions, communications or agreements
between Successor Agency and any governmental authority or agency (federal, state or local) or
any private entity relating in any way to the remediation, presence, release, threat of release or
placement on, in or from the Site, or the generation, transportation, storage, treatment or disposal
of any Hazardous Substance at or from the Site;
(VI) the Site has been operated in compliance with all
Environmental Laws, all necessary permits under the Environmental Laws have been obtained
for the operations on the Site and no liability under any Environmental Laws has been incurred
with respect to the Site; and
(VII) there are no underground storage tanks located on the Site
and no underground storage tanks have been removed from the Site.
For purposes of this Agreement, the following terms shall have the
following meanings :
(I) "Environmental Laws" means all federal , state and local
environmental , hazardous waste or substance, health and/or safety laws, rules, statutes,
directives, binding written interpretations, binding written policies, ordinances and regulations or
common law doctrines issued by any governmental authorities and in effect as of the Effective
Date with respect to or which otherwise pertain to or affect the Site or any portion thereof, the
use, ownership, occupancy or operation of the Site or any portion thereof, or Purchaser, as same
have been amended, modified or supplemented from time to time prior to the date of the Closing,
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U . S . C . § 9601 et seq . ), the Hazardous Substances Transportation Act
(49 U . S . C . § 1802 et seq. ), the Resource Conservation and Recovery Act (42 U . S . C . § 6901 et
seq .) , as amended by the Hazardous and Solid Wastes Amendments of 1984, the Water Pollution
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Control Act (33 U. S . C . § 1251 et seq. ), the Safe Drinking Water Act (42 U. S . C . § 300f et seq. ),
the Clean Air Act (42 U . S . C . § 7401 et seq. ), the Solid Waste Disposal Act (42 U. S . C . § 6901 et
seq .) , the Toxic Substances Control Act ( 15 U. S . C . § 2601 et seq . ), the Emergency Planning and
Community Right-to-Know Act of 1986 (42 U . S . C . § 11001 et seq.), the Radon and Indoor Air
Quality Research Act (42 U . S . C . § 7401 note, et seq. ) , the Superfund Amendment
Reauthorization Act of 1986 (42 U . S . C . § 9601 et seq.), the National Environmental Policy Act
(42 U. S . C . § 4321 et seq . ), the Clean Water Act (33 U . S . C . § 1321 et seq.), and the Occupational
Safety and Health Act (29 U. S . C . § 651 et seq . ), comparable state and local laws, and any and all
rules and regulations which have become effective prior to the date of the Closing under any and
all of the aforementioned laws .
(II) "Hazardous Substances " means all ( 1 ) electromagnetic
waves, urea formaldehyde foam insulation and transformers or other equipment that contains
dielectric fluid containing polychlorinated biphenyls, (2) any solid, liquid, gaseous or thermal
contaminant, including, without limitation, smoke, vapor, soot, fumes, acids, alkalis, chemicals,
waste, petroleum products or byproducts or fractions thereof, asbestos, asbestos containing
materials, radioactive materials, PCBs, phosphates, lead or other heavy metals , chlorine, mold,
radon gas and any indoor air contaminant, (3 ) any solid or liquid wastes (including hazardous
wastes) , hazardous air pollutants, hazardous substances, hazardous chemical substances and
mixtures, toxic substances, pollutants and contaminants, as such terms are defined in any
Environmental Law, and (4) any other chemical, material or substance, the use or presence of
which, or exposure to the use or presence of which, is prohibited, limited or regulated by any
Environmental Laws .
(xvi) Misrepresentation and Adverse Facts . Successor Agency has not
knowingly failed to disclose any fact that is material to the transaction contemplated in this
Agreement that is known by it.
214.2 Costco ' s Representations, Warranties and Covenants . Costco
represents, warrants and covenants to Successor Agency:
(i) Power and Authority. Costco is a corporation in good standing,
duly formed and validly existing under the laws of the State of Washington. Costco has the
authority and power to enter into this Agreement and to consummate the transaction provided for
herein. This Agreement and all other documents executed and delivered by Costco constitute
legal, valid, binding and enforceable obligations of Costco, and there are no claims or defenses,
personal or otherwise, or offsets whatsoever to the enforceability or validity of this Agreement.
The person executing this Agreement on behalf of Costco has been duly authorized to do so .
(ii) No Violations or Actions . The execution, delivery and
performance by Costco of its obligations under this Agreement will not conflict with or result in
a breach of any law, governmental rule, regulation, judgment, decree or order by which Costco is
bound, or any contract to which Costco is a party or by which Costco is bound, or Costco ' s
certificate of incorporation or bylaws .
214.3 Survival. All of the representations, warranties and covenants of
Successor Agency and Costco contained in this Agreement shall be true and correct as of the
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Effective Date and shall, as a condition to Closing, be true and correct in all material respects as
of the Closing Date. The parties ' rights to enforce such representations, warranties and
covenants shall survive the Closing and such rights to enforce shall not be merged into any
documents delivered at the Closing. It is expressly agreed and understood that no examination or
investigation of the Site by or on behalf of Costco prior to the Closing shall in any way modify,
affect or diminish Successor Agency' s obligations under the representations, warranties,
covenants and agreements contained in this Agreement.
215. Closing Date Extension . Notwithstanding any provision of this Agreement to
the contrary, in the event that Costco is prepared to close this transaction pursuant to the terms of
this Agreement, and if Successor Agency has not fully performed its obligations hereunder, then
Costco, in its sole and absolute discretion, and in addition to all other rights and remedies it may
have, may, from time to time, notify Successor Agency that Costco extends the Closing Date to
such date or dates as Costco may elect to provide Successor with the additional time necessary
for Successor Agency to fully perform its obligations hereunder. In such event, all conditions to
Closing, including, without limitation, the Continuing Conditions, shall continue as conditions
unless expressly waived in writing by Costco, and Costco may defer making Costco ' s Closing
deliveries (including deposit of the balance of the Purchase Price) pending Successor Agency' s
performance. Successor Agency' s failure to fully perform by such extended Closing Date(s)
shall constitute a default by Successor Agency under this Agreement.
216. Post-Closing Adjustments . The parties assume there will be no taxes, costs,
expenses or income attributable to the Site to be prorated between them at Closing. To the extent
this assumption may be incorrect and pre-Closing income or expense items with respect to the
Site are received after Closing, Costco and Successor will, upon a proper accounting, pay to the
other such amounts as may be necessary such that Successor Agency will pay all expenses of the
Site for the period on and prior to the Closing Date and all other expenses to be paid by
Successor Agency pursuant to this Agreement, and Costco will pay all expenses of the Site for
the period after the Closing Date and all other expenses to be paid by Costco pursuant to this
Agreement. If either party receives any bill or invoice which relates to the period or to an
expense for which the other party is responsible, the receiving party will refer such bill to the
responsible party and the responsible party agrees to pay, promptly upon receipt, such portion of
the bill or invoice as relates to the period or expense for which it is responsible. If the
responsible party does not pay such bill in a timely manner, the receiving party may, at its
option, pay such bill or invoice and the responsible party shall become liable to the receiving
party for the full amount of such payment, together with interest at the rate of two percent (2 %)
per annum in excess of the Prime Rate . The " Prime Rate" shall be the rate announced as such
from time to time by Bank of America, N .A . or its successor. If there shall be no such
announced rate of such bank or its successor, then the Prime Rate shall be such equivalent rate as
is charged from time to time by major money-center banks .
300. DEFAULTS , REMEDIES AND TERMINATION
301 . Defaults — General Subject to the extensions of time set forth in Section 404,
failure or delay by either party to perform any term or provision of this Agreement constitutes a
default under this Agreement. The party who so fails or delays must immediately commence to
cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy
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with reasonable diligence and during any period of curing shall not be in default. The injured
party shall give written notice of default to the party in default specifying the default complained
of by the injured party. Except as required to protect against further damages and except as
otherwise expressly provided in Section 305 of this Agreement, the injured party may not
institute proceedings or exercise any other remedies against the party in default until ninety (90)
days after giving such notice. Failure or delay in giving such notice shall not constitute a waiver
of any default nor shall it change the time of default. Except as otherwise expressly provided in
this Agreement, any failure or delay by either party in asserting any of its rights or remedies as to
any default shall not operate as a waiver of any default or of any such rights or remedies or
deprive such party of its right to institute and maintain any actions or proceedings that it may
deem necessary to protect, assert or enforce any such rights or remedies .
302 . Legal Actions
302. 1 Institution of Legal Actions In addition to any other rights or remedies,
but subject to any limitations set forth herein, either party may institute legal action to cure,
correct or remedy any default, or recover damages for any default, or to obtain any other remedy
consistent with the purpose of this Agreement. Such legal actions must be instituted in the
Superior Court of the County of Mendocino, State of California, all parties consenting to the
jurisdiction and venue of such courts and to the state appellate courts .
302 .2 Applicable Law; Interpretation The laws of the State of California shall
govern the interpretation and enforcement of this Agreement. This Agreement has been
negotiated at arm's length and between persons sophisticated and knowledgeable in the matters
dealt with herein. In addition, each party has been represented by experienced and
knowledgeable legal counsel . Accordingly, any rule of law (including California Civil Code
Section 1654) or legal decision that would require interpretation of any ambiguities in this
Agreement against the party that has drafted it is not applicable and is waived. The provisions of
this Agreement shall be interpreted in a reasonable manner to give effect to the purposes of the
parties and this Agreement.
302.3 Acceptance of Service of Process In the event that any legal action is
commenced by Costco against Successor Agency, service of process shall be made by personal
service upon the Ukiah City Clerk or in such other manner as may be provided by law. In the
event that any legal action is commenced by Successor Agency against Costco , service of
process on Costco shall be made by service upon CT Corporation System, 818 West Seventh
Street, Los Angeles, CA 90017 , or any successor Agent for Service of Process as filed with the
California Secretary of State.
303 . Rights and Remedies are Cumulative Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same
time or different times, of any other rights or remedies for the same default or any other default
by the other party.
304 . Remedies Generally If Costco or Successor Agency defaults with regard to any
of the provisions of this Agreement, the non-defaulting party shall serve written notice of such
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default upon the defaulting party. If a default by Successor Agency is not cured within the
applicable time period specified in Section 301 as extended pursuant to Section 404, Costco shall
have the remedies provided in Section 305 . 1 , the choice of which then-applicable remedies may
be made in Costco ' s sole and absolute discretion. If a default by Costco is not cured within the
applicable time period specified in Section 301 as extended pursuant to Section 404, Successor
Agency shall have the then-applicable remedies provided in Sections 305 . 2 , the choice of which
then-applicable remedies may be made in Successor Agency' s sole and absolute discretion .
305. Remedies and Rights of Termination
305 . 1 Remedies Available to Costco. In the event that at any time Successor
Agency is in breach or default with respect to any other obligation of Successor Agency under
this Agreement, including, without limitation, Successor Agency tendering conveyance of the
Site or possession thereof in the manner and condition and by the date provided in this
Agreement subject to extension under Section 404 ; and if any default or failure referred to in this
Section 305 . 1 shall not be cured within the applicable time period after the date of written
demand by Costco or such longer period of time as reasonably may be necessary for the
particular cure, then Costco , at its option, may (i) seek specific performance of this Agreement,
including attorneys ' fees and costs incurred in pursuing specific performance; (ii) cure the
default on behalf of defaulting party and obtain reimbursement from the defaulting party of costs
and expenses incurred in connection with such cure, including, without limitation, attorneys '
fees ; or (iii) terminate this Agreement by written notice of termination to Successor Agency, and
any rights with respect to Costco against Successor Agency or any assignee or transferee in, to or
under this Agreement, pertaining to this Agreement, or arising out of this Agreement, shall
terminate. Upon such termination, the Deposit shall be returned to Costco as provided in
Section 104, and subject to an extension of time under Section 404, Costco shall be entitled to
reimbursement of out-of-pocket expenses incurred in pursuit of this transaction ("Costco ' s
Actual Damages") but not for consequential damages and, except for Costco ' s Actual Damages,
neither Successor Agency nor Costco shall have any further rights against or liability to the other
under this Agreement; provided, however, that if Successor Agency is prevented from
performing any of its obligations under Section 205 . 1 by a decision of another government
agency or court, Costco ' s exclusive remedy is termination of the Agreement or a demand that
Successor Agency exhaust any available administrative or judicial remedies to challenge that
decision. Costco shall be entitled to Costco ' s Actual Damages only if Successor Agency fails or
refuses to fully exhaust such administrative and judicial remedies .
305 .2 Remedies Available to Successor Agency. In the event that (a) Costco
fails to maintain the amount of the Deposit as required by Section 104 of this Agreement; (b)
Costco transfers or assigns or attempts to transfer or assign this Agreement or any rights herein
or in the Site or the buildings or improvements thereon in violation of this Agreement ; or (c)
Costco is in breach or default with respect to any other obligation of Costco under this
Agreement as extended by Section 404 ; and if any default or failure referred to in this
Section 305 . 2 shall not be cured within ninety (90) days after the date of written demand by
Successor Agency or such longer period of time as reasonably may be necessary for the
particular cure, then Successor Agency may terminate this Agreement.
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305.3 Liquidated Damazes. IN THE EVENT OF TERMINATION UNDER
SECTION 305.2, THE DEPOSIT SHALL BE RETAINED BY SUCCESSOR AGENCY AS
LIQUIDATED DAMAGES AND AS ITS PROPERTY WITHOUT ANY DEDUCTION,
OFFSET OR RECOUPMENT WHATSOEVER, SUCCESSOR AGENCY WAIVING ALL
OTHER RIGHTS AND REMEDIES, EXCEPT AS OTHERWISE IN THIS AGREEMENT
EXPRESSLY PROVIDED. IF COSTCO SHOULD DEFAULT UPON ITS OBLIGATIONS,
MAKING IT NECESSARY FOR SUCCESSOR AGENCY TO TERMINATE THIS
AGREEMENT AND TO PROCURE ANOTHER PARTY OR PARTIES TO PURCHASE THE
SITE, THEN THE DAMAGES SUFFERED BY REASON THEREOF WOULD BE
UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS
THE CONSIDERATION THAT SUCH PARTY WOULD PAY FOR THE SITE; THE
EXPENSES OF CONTINUING THE OWNERSHIP AND CONTROL OF THE SITE; OF
INTERESTING PARTIES AND NEGOTIATING WITH SUCH PARTIES, RESULTING IN
ADDITIONAL IMMEASURABLE DAMAGE AND LOSS TO SUCCESSOR AGENCY. IT
IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH
DAMAGES TO SUCCESSOR AGENCY, BUT THE PARTIES ARE OF THE OPINION,
UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM, THAT SUCH
DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE DEPOSIT
HELD BY ESCROW AGENT AT THE TIME OF THE DEFAULT OF COSTCO, AND THE
AMOUNT OF SUCH DEPOSIT SHALL BE PAID TO SUCCESSOR AGENCY UPON ANY
SUCH OCCURRENCE AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY
AND ALL SUCH DEFAULTS AND NOT AS A PENALTY. IN THE EVENT THAT THIS
PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON OTHER THAN
PURSUANT TO AN ACTION BY SUCCESSOR AGENCY, SUCCESSOR AGENCY SHALL
BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY
LAW. COSTCO AND SUCCESSOR AGENCY SPECIFICALLY ACKNOWLEDGE THIS
LIQUIDATED DAMAGES PROVISION BY THEIR SIGN E:
By:
By:
By:
1
400. GENERAL PROVISIONS Richard J. Olin
SVP/Asst. Secretary
401. Notices, Demands and Communications Between the Parties All notices,
demands, consents, approvals and other communications (each, a "Notice") which are required
or desired to be given by either party to the other under this Agreement shall be in writing and
shall be (a) hand delivered, (b) sent by U.S. registered or certified mail, postage prepaid, return
receipt requested, (c) sent by reputable overnight courier service, or (d) transmitted by facsimile
machine (with a printed copy to follow by one of the other methods prescribed in clauses (a)
through (c) of this Section 401, including a copy of the transmission sheet indicating successful
transmission of the Notice by facsimile machine), addressed to the appropriate party at its
address set forth in Section 103 hereof, or at such other address as such party shall have last
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designated by Notice to the other. Notices shall be deemed given when delivered. Until notified
otherwise, Notices to Successor Agency shall be addressed to the attention of the Executive
Director. Until notified otherwise, Notices to Costco shall be addressed to the attention of Seth
S . Katz, Corporate Counsel . Rejection or other refusal by the addressee to accept a Notice or the
inability to deliver the Notice because of a changed address of which no Notice was given shall
be deemed to be receipt of the Notice sent. Notices sent by counsel for Costco or Successor
Agency, respectively, shall be deemed Notice given by the party provided that the Notice is
delivered to the party pursuant to the foregoing; Notice given only to counsel for a party shall not
be deemed Notice given to that party.
402 . Conflicts of Interest No member, official or employee of Successor Agency
shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member,
official or employee participate in any decision relating to this Agreement that affects his or her
personal interests or the interests of any corporation, partnership or association in which he or
she is directly or indirectly interested. Except as provided in Section 502 , each party warrants
that it has not paid or given, and will not pay or give, any third person any money or other
consideration for obtaining this Agreement.
403 . Nonliability of Successor Agency Officials and Employees No member,
official or employee of Successor Agency shall be personally liable to Costco in the event of any
default or breach by Successor Agency or for any amount that may become due to Costco or on
any obligations under the terms of this Agreement.
404 . Enforced Delay : Extension of Times of Performance In addition to the
specific provisions of this Agreement, performance by any party hereunder shall not be deemed
to be in default where delays or defaults are due to war; act of terrorism ; insurrection; strikes ;
lock-outs ; riots ; floods ; earthquakes ; fires ; casualties; acts of God; acts of the public enemy;
epidemics ; quarantine restrictions ; freight embargoes ; lack of transportation; governmental
restrictions or priority; litigation, including legal challenges to governmental approvals by
Successor Agency, the California Department of Finance, the City of Ukiah or other
governmental agencies ; unusually severe weather; inability to secure necessary labor, materials
or tools ; delays of any contractor, subcontractor or supplier; acts of another party; acts or the
failure to act of any public or governmental agency or entity (except that acts or the failure to act
of Successor Agency or City shall not excuse performance by Successor Agency) ; or any other
causes beyond the control or without the fault of the party claiming an extension of time to
perform. An extension of time for any such cause shall only be for the period of the enforced
delay, which period shall commence to run from the time of the commencement of the cause . If,
however, notice by the party claiming such extension is sent to the other parties more than thirty
(30) days after the commencement of the cause and the other parties did not know of the cause of
the enforced delay prior to such notice, the period shall commence to run only thirty (30) days
prior to the giving of such notice. Subject to Section 415 below : (i) if the enforced delay results
from litigation, the period of the enforced delay shall be deemed to continue until there is a Final
Judgment or the parties agree that further litigation is not warranted; and (ii) in the case of
litigation challenging compliance with CEQA, where defects in an environmental document can
be cured by supplement or addendum thereto , the period of enforced delay shall include the time
required to cure the defects and any judicial review thereof, unless the parties otherwise agree in
writing. Times of performance under this Agreement may also be extended in writing by
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Successor Agency and Costco, and the Executive Director shall have authority to make or to
agree to such extensions without further consideration thereof or action thereon by Successor
Agency. If the enforced delays pursuant to this Section 404 cause performance in accordance
with the Schedule of Performance to be unfeasible, the parties shall meet and confer to revise the
times specified in the Schedule of Performance and the authority of the Executive Director
pursuant to. the foregoing sentence shall include approval of such a revised Schedule of
Performance.
405 . Inspection of Books and Records Successor Agency has the right, upon not less
than three (3 ) business days ' notice, at all reasonable times, to inspect the books and records of
Costco pertaining to the Site as pertinent to the purposes of this Agreement. Costco also has the
right, upon not less than three (3 ) days ' notice, at all reasonable times, to inspect the books and
records of Successor Agency pertaining to the Site as pertinent to the purposes of this
Agreement.
406. Plans Where Costco does not proceed with the purchase and development of the
Site, and when this Agreement is terminated pursuant to Section 305 .2 hereof for any reason,
Costco shall deliver to Successor Agency any and all plans for the Site, and Successor Agency or
any other person or entity designated by Successor Agency shall be free to use such plans,
including plans previously delivered to Successor Agency, for any reason whatsoever without
cost or liability therefor to Costco or any other person.
407. Attorneys ' Fees Should any action be brought arising out of this Agreement
including, without limitation, any action for declaratory or injunctive relief, the prevailing party
shall be entitled to reasonable attorneys' fees and costs and expenses of investigation incurred,
including those incurred in appellate proceedings or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7 , 11 or 13 of the Bankruptcy Code or
any successor statutes, and any judgment or decree rendered in any such actions or proceedings
shall include an award thereof.
408. Successors Bound Subject to the restrictions on assignment contained in Section
304 hereof, the provisions of this Agreement shall extend to, bind and inure to the benefit of the
parties to this Agreement and their respective personal representatives , heirs, successors and
assigns .
409. Severability If any term or provision of this Agreement shall, to any extent, be
held invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be
affected thereby, but each remaining term and provision shall be valid and enforced to the fullest
extent permitted by law.
410. Captions The captions of this Agreement are inserted solely for convenience of
reference only and do not define, describe or limit the scope or intent of this Agreement or any
term hereof.
411 . Construction Successor Agency and Costco acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in
22
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the interpretation of this Agreement (including the attachments and exhibits hereto) or any
amendments hereto, and the same shall be construed neither for nor against Successor Agency or
Costco , but shall be given a reasonable interpretation in accordance with the plain meaning of its
terms and the intent of the parties .
412 . Party ' s Approval Rights Whenever in this Agreement a party is deemed to
disapprove of a particular matter, or a condition is deemed not to be satisfied by reason of the
party' s failure to approve of the same or to acknowledge that the same is satisfied, the other
parties shall have no right to conclusively deem the party to have disapproved of such matter or
to deem such condition not satisfied, unless and until the party or parties seeking to deem the
matter disapproved ("the deeming party") gives written notice to the party who is deemed to
have disapproved ("the disapproving party") that deeming party intends to deem such matter
disapproved or to deem such condition not satisfied, as of the date which is five (5) days after the
disapproving party receives such notice. If disapproving party fails to approve of or waive the
matter in question or fails to acknowledge that the condition in question is satisfied, as the case
may be, within such five (5 ) day period, the matter or condition in question shall thereafter be
conclusively deemed to be disapproved or not satisfied.
413 . Computation of Time If the time for performance of any provision of this
Agreement ends on a Saturday, Sunday or federal, state or legal holiday in the Governing
Jurisdiction, then such date shall automatically be extended until 5 : 00 p .m. on the next day which
is not a Saturday, Sunday or federal, state or legal holiday in . the Governing Jurisdiction.
414. Survival of Terms . The terms and provisions of this Agreement shall survive the
Closing and shall remain in full force and effect thereafter unless otherwise specifically provided
in this Agreement.
415. Assignment. This Agreement shall not be assigned by either party without the
prior written approval of the other party; provided, however, that if Costco will operate the
wholesale warehouse store contemplated by the Improvement Agreement through an affiliate or
subsidiary, it may assign this Agreement to that affiliate or subsidiary on condition that effective
as of Closing under this Agreement the affiliate or subsidiary assumes Costco ' s obligations
under the Improvement Agreement,
500. SPECIAL PROVISIONS
501 . Amendments to this Agreement Costco and Successor Agency agree to
mutually consider reasonable requests for amendments to this Agreement that may be made by
any of the parties hereto, provided such requests are consistent with this Agreement and would
not substantially alter the basic business terms included herein.
502 . Brokers ' Commissions Successor Agency shall be responsible for paying a
broker's commission in the amount of THREE HUNDRED THOUSAND DOLLARS
($ 300, 000), to be paid at Closing, in equal shares to NWAP II, Inc. , and The Voit Corporation
(Jason Gallelli) . Successor Agency also shall pay a broker's commission in the amount of Three
Percent (3 %) of the Purchase Price, to be paid at the Closing, to Realty World Seltzer Realty.
Successor Agency and Costco each represent to the other that it has engaged no other broker in
23
USW 804510810. 12
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connection with the transaction set forth in this Agreement to whom a commission is or would be
payable.
503. Purchase of Lot 3 . In accordance with and subject to the provisions of this Section
503 , Successor Agency agrees to sell, and Costco agrees to purchase Lot 3 for the sum of ONE
HUNDRED TWENTY-ONE THOUSAND NINE HUNDRED SIXTY EIGHT DOLLARS
($ 121 ,968) . Lot 3 is shown on the Map ("Lot 3") and more particularly described in the Legal
Description of Lot 3 (Attachment No . 6) .
503. 1 Disposition in Accordance with Improvement Agreement. Costco shall not
alter Lot 3 from its condition on the Effective Date and shall dispose of Lot 3 in accordance with the
Improvement Agreement.
503 .2 Terms of Purchase. The terms and conditions of purchase and sale of Lot 3
shall be comparable to the terms and conditions of purchase and sale for the Site under this Purchase
Agreement, except that:
(a) The following shall not apply: Costco ' s conditions at Section 205 . 1 (b)5
(c) and (f) ; Costco ' s acknowledgement of inspections at Section 212. 1 ; Successor Agency' s
representations at Sections 214. 1 (v) (Zoning and Use) and (vi) (Utilities) ; and
(b) In lieu of times provided under the Schedule of Performance and subject
to Section 404 and extension as provided in this Purchase Agreement, the following times shall
apply:
(i) Opening of Lot 3 Escrow and deposit of Deposit: Within five (5)
business days after of approval of this Agreement by Department of Finance;
(ii) Title, Survey and Inspection Period for Costco to determine all
aspects of Lot 3 are acceptable to Costco in its sole and absolute discretion: Within thirty (30) days
after opening of Lot 3 Escrow ;
(iii) Satisfaction of applicable conditions of Sections 205 . 1 and
205 . 2 : Within thirty(30) days after opening of Lot 3 Escrow;
(iv) Deposit into Escrow of Grant Deed, Purchase Price and other
funds and documents necessary for Closing: at same time as for the Site (Costco shall not purchase
Lot 3 except concurrently with and conditioned upon its closing on the purchase of the Site) ; and
(v) Closing: Next business day after deposit of all funds and
documents necessary for Closing.
600. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This Agreement is executed in four (4) duplicate originals, each of which is deemed to be
an original . This Agreement comprises pages 1 through 26 , inclusive, Acknowledgments and
Attachment Nos . 1 through 5 , attached hereto and incorporated herein by reference, all of which
24
USW 804510810. 12
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constitute the entire understanding and agreement of the parties . This Agreement integrates all
of the terms and conditions mentioned herein or incidental hereto , and supersedes all
negotiations or previous agreements between the parties with respect to all or any part of the
subject matter hereof. All waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of Successor Agency and Costco, and all amendments
hereto must be in writing and signed by the appropriate authorities of Successor Agency and
Costco .
700. TIME FOR ACCEPTANCE OF AGREEMENT BY SUCCESSOR AGENCY
This Agreement, when executed by Costco and delivered to Successor Agency, must be
authorized, executed and delivered by Successor Agency within twenty (20) days after the date
of signature by Costco or this Agreement shall be void, except to the extent that Costco shall
consent in writing to further extensions of time for the authorization, execution and delivery of
this Agreement. The effective date of this Agreement shall be the date when both this
Agreement has been signed by Successor Agency.
[ SIGNATURES ON NEXT PAGE( S)]
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USW 804510810. 12
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800. COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed in more than one counterpart, each of which shall be
deemed an original, and all of which together shall constitute one and the same instrument.
Facsimile or other electronically transmitted signatures on this Agreement shall constitute
originals signatures of the parties.
201
CITY OF UKIAH SUCCESSOR AGENCY
By: &4�4
J e Chambers, Executive Director
201_ COSTCO WHOLESALE CORPORATION,
a Washington do
By:
ch J. Olin
Title:
i
i
26
USW 804510810.12
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I
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 WASHINGTON )
)
COUNTY OF KING )
On I�j , 2015, before me, ��C l �- (;(i� , a Notary
Pub�, pers nall appeared ��cA �ayr� j, (a� who proved to me on the
basis of satis actory evidence to be the persoA�) 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. 2A 0, top,
i
Notary ublic
ASH`?``
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 )
COUNTY OF )
On j ot.f f , 2015, before me, Sri Sal V� G , a Notary
Public, p sre
Public, appeared th,y<,C , who proved to me on the
basis of satisfactory evidence to be the person_(K whose name i are subscribed to the within
instrument, and acknowledged to me that h sh they executed the same in his4Dtheir
authorized capacity, and that by hi he their signatureM on the instrument the personX or
the entity upon behalf of which the personm 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.
KRISTINE ROBIN LAWLER'�
COMM. #1998485 =
s Notary Public-California 7D
66,ht Z s Mendocino County
Comm,Fynirac Nov. 17,2016
Notary Public
i
ATTACHMENT NO , 1
MAP OF THE SITE
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USW 8045 108 1 0. 12
11 /12/ 14 Attachment No . 1
• f
ATTACHMENT NO . 2
LEGAL DESCRIPTION OF THE SITE
LANDS OF CITY OF UKIAH , SUCCESSOR AGENCY FOR DISSOLVED UKIAH
REDEVELOPMENT AGENCY, A PUBLIC BODY
LOT 1
REAL PROPERTY SITUATE IN THE CITY OF UKIAH , COUNTY OF MENDOCINO , STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS :
BEING ALL OF LOTS G1 , G21 G37 F8 & F10 AND A PORTION OF LOT F11 AS SAID LOTS ARE
SHOWN ON THAT PARCEL MAP M . S . 97-07 RECORDED JULY 28 , 1997 IN MAP CASE 2 , DRAWER
64 AT PAGES 21 & 22 , OFFICIAL RECORDS OF MENDOCINO COUNTY, TOGETHER WITH A
PORTION OF PARCEL 1 AS SHOWN ON THAT PARCEL MAP M .S . 04-51 RECORDED OCTOBER 2 ,
2006 IN MAPS, DRAWER 74 AT PAGES 4 THROUGH 6 , OFFICIAL RECORDS OF MENDOCINO
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS :
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT F8, ALSO BEING A POINT ON THE
EASTERLY RIGHT OF WAY FOR AIRPORT PARK BOULEVARD AS SHOWN ON SAID PARCEL MAP
M . S . 97-07;
THENCE ALONG THE NORTHERLY LINE OF SAID LOTS F8 & G3 , NORTH 84 040'22" EAST A
DISTANCE OF 585 .28 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY FOR U . S . HIGHWAY
1015 SAID POINT ALSO BEING THE NORTHEAST CORNER OF LOT G3, AS SAID HIGHWAY AND
LOT ARE SHOWN ON SAID PARCEL MAP M . S . 97-07;
THENCE ALONG THE EASTERLY LINES OF SAID LOTS G3, G21 G1 AND SAID PARCEL 1 , ALSO
BEING THE WESTERLY RIGHT OF WAY OF SAID HIGHWAY, THE FOLLOWING FIVE ( 5) COURSES :
1 ) THENCE SOUTH 02 029'45" EAST A DISTANCE OF 327. 57 FEET;
2 ) THENCE SOUTH 05 021 '28" EAST A DISTANCE OF 100 . 13 FEET;
3) THENCE SOUTH 02 029'45" EAST A DISTANCE OF 400 .04 FEET;
4) THENCE SOUTH 00 038'06" WEST A DISTANCE OF 100 . 19 FEET ;
5) THENCE SOUTH 02 029' 15" EAST A DISTANCE OF 530 . 19 FEET ;
THENCE LEAVING SAID EASTERLY LINES AND SAID WESTERLY RIGHT OF WAY, SOUTH
84 040'22" WEST A DISTANCE OF 103 .48 FEET;
THENCE NORTH 31037' 13" WEST A DISTANCE OF 249 . 94 FEET ;
THENCE SOUTH 84 040 '22" WEST A DISTANCE OF 38 . 33 FEET;
THENCE NORTH 32 045'47" WEST A DISTANCE OF 331 . 26 FEET;
THENCE SOUTH 84 040' 22" WEST A DISTANCE OF 102 .89 FEET TO A POINT ON THE WESTERLY
LINE OF SAID LOT F11 , SAID POINT ALSO BEING ON THE EASTERLY RIGHT OF WAY OF SAID
AIRPORT PARK BOULEVARD ;
THENCE ALONG THE WESTERLY LINES OF SAID LOTS F11 , F10 & F8 , ALSO BEING SAID
EASTERLY RIGHT OF WAY, NORTH 05 036'44" WEST A DISTANCE OF 937 . 97 FEET TO THE POINT
OF BEGINNING . CONTAINING 15 . 2989 ACRES OF LAND , MORE OR LESS .
USW 804510810. 12
11/ 12/14 Attachment No . 2
t
ATTACHMENT NO , 3
SCHEDULE OF PERFORMANCE
ACTION DATE
1 . Execution and Delivery of Agreement Not later than Successor Agency meeting to
by Costco . Costco shall execute and consider approval of this Agreement.
deliver this Agreement to Successor
Agency.
2 . Execution of Agreement by Successor Within twenty (20) days execution of
Ate. If so authorized , Successor Agreement by Costco .
Agency shall execute, date ("Effective
Date") and deliver this Agreement to
Costco . (Section 700) .
3 . Approval of Agreement by Oversight January 31 , 2014
Board . Oversight Board shall hold a
public hearing pursuant to Health and
Safety Code Section 34181 (fl . .
(Section 700) , 1 ^
4 . Opening of Escrow . Costco shall open Completed.
an escrow for conveyance of the Site to
Costco (Section 202), and deposit the
Deposit therein. (Section 104) .
5 . Title Commitment. Costco shall obtain Completed .
the Title Commitment from the Title
Company ( Section 206 . 1 ) .
6 . Survey. Costco shall obtain an ALTA Within thirty (30) days after Effective Date.
Survey of the Site (Section 206 . 2) .
USW 804510810. 12
11/ 12/14 Attachment No . 3
ACTION DATE
7 . Title Inspection Period . Costco shall Within sixty (60) days after Effective Date,
inspect the Title Commitment and
Survey and notify Successor Agency of
any Title Objections . (Section 206 . 3 ) .
81 Long Range Property Mana eg ment Within sixty (60) day after Effective Date.
Plan Approval . Successor Agency
shall deliver evidence of Oversight
Board, Dept. of Finance and any other
approvals necessary for Successor
Agency to convey Site to Costco .
(Sections 205 . 1h and 214 . 1 (i)) .
9 , Going-Forward Notice. All of Within ten ( 10) days after satisfaction or
Costco ' s conditions to Closing under waiver of all conditions under Improvement
the Improvement Agreement shall be Agreement.
satisfied or waived, subject to
Continuing Conditions . (Section
205 . 10
10 , Purchase Notice. All of Costco ' s Within ten ( 10) days after satisfaction or
conditions to Closing shall be satisfied waiver of all conditions under this Agreement.
or waived, subject to Continuing
Conditions . (Section 205 . 1 ) .
11 . Deposit of Grant Deed. Successor Within ten ( 10) days after Purchase Notice.
Agency shall deposit the Grant Deed,
subdivision documents , and other
required documents into escrow.
(Section 207) .
12 . Deposit of Purchase Price and Other Within ten ( 10) days after Purchase Notice,
Required Sums . Costco shall deposit
the Purchase Price and other required
sums and documents into escrow.
(Section 208) .
Attachment No . 3
USW 804510810. 12
11 /12/ 14 2
ACTION DATE
13 , Closing. Escrow shall close. (Sections Next business day after deposits pursuant to
208 and 215 ) . Action Item # 12 .
Attachment No . 3
USW 804510810. 12
11 /12/14 3
ATTACHMENT NO , 4
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO :
Costco Wholesale Corporation
999 Lake Drive
Issaquah, WA 98027- 5367
Attn : Property Management/Legal Department
APN :
GRANT DEED
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the SUCCESSOR AGENCY, a political subdivision of the State of California, in
its capacity as the Successor Agency to the Redevelopment Agency of the City of Ukiah (herein
called " Grantor"), hereby grants to COSTCO WHOLESALE CORPORATION, a Washington
corporation (herein called "Grantee"), the real property (the " Site") legally described in the
document attached hereto, labeled Exhibit A, and incorporated herein by this reference.
1 . The Site is conveyed subject to instruments of record .
2 . The Grantee covenants by and for itself and any successors in interest that there
shall be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Grantee itself or
any person claiming under or through it 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, subtenants, sublessees or vendees in the Site.
All deeds, leases or contracts made relative to the Site, the improvements thereon or any
part thereof shall contain or be subject to substantially the following nondiscrimination clauses :
a. 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 race, color, creed, religion, sex, marital status, national origin or ancestry
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 such 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. "
b . 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
USW 804510810. 12
11/12/ 14 Attachment No . 4
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 race, color, creed, religion, sex, marital status, national origin or ancestry 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. "
C, In contracts : "There shall be no discrimination against or segregation of
any person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the transferee 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 . "
3 . 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, deed of trust or other financing or security instrument permitted
by this Agreement, provided, however, that any successor of Grantee to the Site shall be bound
by such remaining covenants, conditions, restrictions, limitations and provisions, whether such
successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
4 . The covenants against discrimination contained in this Grant Deed shall remain in
perpetuity, shall be binding for the benefit of the Grantor, its successors and assigns, and any
successor in interest to the Site or any part thereof, and shall run in favor of the Grantor and such
aforementioned parties 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 such aforementioned parties, in the
event of any breach of any such covenants, shall have the right to exercise all of 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. The covenants contained in this Grant Deed shall be for the
benefit of and shall be enforceable only by the Grantor, its successors and such aforementioned
parties .
USW 804510810. 12
11 / 12/ 14 2
1
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers thereunto duly authorized this
day of , 201
CITY OF UKIAH SUCCESSOR AGENCY,
a municipal corporation
By:
Executive Director
By:
Secretary
" GRANTOR"
" GRANTOR"
Counsel for Grantor
The provisions of this Grant Deed are hereby approved and accepted .
COSTCO WHOLESALE CORPORATION,
a Washington corporation
By:
Title :
"GRANTEE "
USW 804510810. 12
11 /12/ 14 3
ACKNOWLEDGMENTS
USW 804510810. 12
11 /12/ 14 Acknowledgements
i
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
LANDS OF CITY OF UKIAH , SUCCESSOR AGENCY FOR DISSOLVED UKIAH
REDEVELOPMENT AGENCY, A PUBLIC BODY
LOT 1
REAL PROPERTY SITUATE IN THE CITY OF UKIAH , COUNTY OF MENDOCINO , STATE OF CALIFORNIA,
DESCRIBED AS FOLLOWS :
BEING ALL OF LOTS G1 , G2, G3 , F8 & F10 AND A PORTION OF LOT F11 AS SAID LOTS ARE SHOWN ON
THAT PARCEL MAP M . S . 97-07 RECORDED JULY 28 , 1997 IN MAP CASE 2 , DRAWER 64 AT PAGES 21 &
22 , OFFICIAL RECORDS OF MENDOCINO COUNTY, TOGETHER WITH A PORTION OF PARCEL 1 AS
SHOWN ON THAT PARCEL MAP M . S . 04-51 RECORDED OCTOBER 2 , 2006 IN MAPS , DRAWER 74 AT
PAGES 4 THROUGH 6, OFFICIAL RECORDS OF MENDOCINO COUNTY, MORE PARTICULARLY
DESCRIBED AS FOLLOWS :
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT F8 , ALSO BEING A POINT ON THE EASTERLY
RIGHT OF WAY FOR AIRPORT PARK BOULEVARD AS SHOWN ON SAID PARCEL MAP M . S . 97-07 ;
THENCE ALONG THE NORTHERLY LINE OF SAID LOTS F8 & G3, NORTH 84 040122" EAST A DISTANCE OF
585 . 28 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY FOR U . S . HIGHWAY 101 , SAID POINT ALSO
BEING THE NORTHEAST CORNER OF LOT G3 , AS SAID HIGHWAY AND LOT ARE SHOWN ON SAID
PARCEL MAP M . S . 97-07;
THENCE ALONG THE EASTERLY LINES OF SAID LOTS G3, G21 G1 AND SAID PARCEL 1 , ALSO BEING
THE WESTERLY RIGHT OF WAY OF SAID HIGHWAY, THE FOLLOWING FIVE ( 5) COURSES :
1 ) THENCE SOUTH 02 029'45" EAST A DISTANCE OF 327 . 57 FEET;
2) THENCE SOUTH 05 021 '28" EAST A DISTANCE OF 100 . 13 FEET;
3) THENCE SOUTH 02 029'45" EAST A DISTANCE OF 400 . 04 FEET;
4) THENCE SOUTH 00 038' 06" WEST A DISTANCE OF 100 . 19 FEET;
5) THENCE SOUTH 02 029' 15" EAST A DISTANCE OF 530 . 19 FEET;
THENCE LEAVING SAID EASTERLY LINES AND SAID WESTERLY RIGHT OF WAY, SOUTH 84 040' 22" WEST
A DISTANCE OF 103 . 48 FEET ;
THENCE NORTH 31 ° 37' 13" WEST A DISTANCE OF 249 . 94 FEET ;
THENCE SOUTH 84 040'22" WEST A DISTANCE OF 38 . 33 FEET;
THENCE NORTH 32 045'47" WEST A DISTANCE OF 331 . 26 FEET;
THENCE SOUTH 84 040'22" WEST A DISTANCE OF 102 . 89 FEET TO A POINT ON THE WESTERLY LINE OF
SAID LOT F11 , SAID POINT ALSO BEING ON THE EASTERLY RIGHT OF WAY OF SAID AIRPORT PARK
BOULEVARD ;
THENCE ALONG THE WESTERLY LINES OF SAID LOTS F11 , F10 & F8 , ALSO BEING SAID EASTERLY
RIGHT OF WAY, NORTH 05 036'44" WEST A DISTANCE OF 937 . 97 FEET TO THE POINT OF BEGINNING .
CONTAINING 15 . 2989 ACRES OF LAND , MORE OR LESS .
USW 804510810. 12
11 /12/ 14 Exhibit A
ATTACHMENT NO . 5
SUCCESSOR AGENCY ENVIRONMENTAL DISCLOSURES
The disclosures are contained in the Phase I Environmental Assessment prepared for the former
Ukiah Redevelopment Agency on July 31 , 2009, by AES Due Diligence, Inc. , previously
furnished to Costco and available for review at https :\\cityofuikkiah. com/s/ckbt550nktszgjrne9u,
USW 804510810. 12
11/12/ 14 Attachment No . 5
ATTACHMENT NO, 6
LEGAL DESCRIPTION OF LOT 3
LANDS OF CITY OF UKIAH , SUCCESSOR AGENCY FOR DISSOLVED UKIAH
REDEVELOPMENT AGENCY, A PUBLIC BODY
LOT 3
REAL PROPERTY SITUATE IN THE CITY OF UKIAH, COUNTY OF MENDOCINO, STATE OF CALIFORNIA,
DESCRIBED AS FOLLOWS :
BEING A PORTION OF PARCEL 1 AS SHOWN ON THAT PARCEL MAP M . S . 04- 51 RECORDED
OCTOBER 2 , 2006 IN MAPS , DRAWER 74 AT PAGES 4 THROUGH 6 , OFFICIAL RECORDS OF
MENDOCINO COUNTY , MORE PARTICULARLY DESCRIBED AS FOLLOWS :
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID PARCEL 1 , SAID POINT BEING THE
SOUTHERLY TERMINUS OF THE COURSE SHOWN AS NORTH 07 031 ' 49 " WEST , 316 . 07 FEET ON
SAID PARCEL MAP M . S . 04 - 51 ;
THENCE ALONG SAID WESTERLY LINE, NORTH 07 031 '49" WEST A DISTANCE OF 166.00 FEET; THENCE NORTH
75 004'25" EAST A DISTANCE OF 62.00 FEET; THENCE SOUTH 68 033'19" EAST A DISTANCE OF 49.00 FEET;
THENCE SOUTH 28 010'29" EAST A DISTANCE OF 115.00 FEET; THENCE SOUTH 67 015'27" EAST A DISTANCE OF
75.00 FEET;
THENCE SOUTH 30 005 ' 23 " EAST A DISTANCE OF 119 . 00 FEET TO A POINT ON THE SOUTHERLY
BOUNDARY OF SAID PARCEL 1 , SAID POINT ALSO BEING THE BEGINNING OF A NON - TANGENT
CURVE TO THE LEFT , THE CENTER OF WHICH BEARS SOUTH 25 004' 17 " WEST ;
THENCE ALONG SAID SOUTHERLY BOUNDARY THE FOLLOWING FIVE ( 5 ) COURSES :
1 ) THENCE ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 314 . 00 FEET , THROUGH A
CENTRAL ANGLE OF 27 011 ' 17 " FOR AN ARC LENGTH OF 149 . 00 FEET TO A POINT OF REVERSE
CURVATURE ;
2 ) THENCE ALONG THE ARC OF A CURVE TO THE RIGHT , HAVING A RADIUS OF 100 . 00 FEET ,
THROUGH A CENTRAL ANGLE OF 23 014 ' 32 " FOR AN ARC LENGTH OF 40 . 57 FEET TO A POINT
OF REVERSE CURVATURE ;
3 ) THENCE ALONG THE ARC OF A CURVE TO THE LEFT , HAVING A RADIUS OF 100 . 00 FEET ,
THROUGH A CENTRAL ANGLE OF 27 003 ' 26 " FOR AN ARC LENGTH OF 47 . 22 FEET ;
4 ) THENCE NORTH 05 055 ' 53 " WEST A DISTANCE OF 33 . 00 FEET ;
5 ) THENCE SOUTH 82 028 ' 11 " WEST A DISTANCE OF 33 . 00 FEET TO THE POINT OF BEGINNING ,
ALL AS SHOWN ON PAGE 3 OF 3 ON THE ATTACHED PLAT MADE A PART HEREOF AND
CONTAINING 0 . 7963 ACRES OF LAND , MORE OR LESS ,
RICHARD J. HICKENBOTTOM, PLS 8654 DATE
LICENSE EXPIRES : 12/31113
USW 804510810. 12
11 / 12/ 14 Attachment No . 6