HomeMy WebLinkAbout2012 CON Centro Indy - Centro Art ProjectAGREEMENT
BY AND BETWEEN
CITY OF NATIONAL CITY
AND
CENTRO INDY, LLC
THIS AGREEMENT is entered into this 29th day of February , 2012, by and
between CITY OF NATIONAL CITY (hereinafter referred to as "CITY"), a municipal
corporation, located at 1243 National City Blvd, National City, California, 91950, and CENTRO
INDY, a limited liability corporation located at 770 3rd Avenue SW, Carmel, Indiana, 46032, the
property owner (hereinafter referred to as "OWNER") of what is commonly referred to and
known as the Centro Project located at 45 East 12th Street, National City, CA 91950 (hereinafter
referred to as the "Project").
WHEREAS, as a condition of approval to construct the Project, a public art program was
to be constructed; and
WHEREAS, CITY approved tree lighting along A Avenue as the art project to satisfy the
condition (the "Art Project"); and
WHEREAS, in November 2010, CITY entered into a Trust and Agency Agreement with
the prior owner of the Project, to wit: 45 East 12th Street, LLC (an affiliate of East West Bank)
("East West Bank"), wherein CITY collected a deposit in the amount of $30,000 ("Deposit
Funds"); and
WHEREAS, the sum deposited was in the nature of a deposit and as an advance against
the obligations of the subdivider for the purpose of (1) securing the faithful performance of the
Art Project as a condition of approval for the Final Map for the Centro/Revolution Project; (2)
securing the obligations set forth in Title 15 (commencing with Section 3082) of Part 4 of
Division 3 of the Civil Code of the State of California for payment of the contractor,
subcontractors, and persons renting equipment or furnishing labor or material for the
improvements to be constructed pursuant to said Agreement; and (3) for the payment of
reasonable costs and fees, including reasonable attorneys' fees incurred by CITY in enforcing the
terms and conditions of said Agreement; and
WHEREAS, under the terms of the Purchase and Sale Agreement and Joint Escrow
Instructions dated October 27, 2011 (the "PSA") (Exhibit "A"), by and between Owner and East
West Bank, East West Bank transferred to Owner all of its rights, title and interest in the Project,
including all development rights, privileges entitlements, governmental permits, licenses,
certificates, real property and any other governmental approvals pertaining to the Property; and
WHEREAS, pursuant to the PSA, the Owner purchased said Deposit Funds and wishes to
transfer Deposit Funds to CITY in lieu of completing the Art Project; and
WHEREAS, CITY will be constructing improvements along 8th Street including portions
of A Avenue wherein tree lighting is part of the ongoing street improvement project; and
1 National City and Centro Indy, LLC
Art Project - 45 E. 12th, National City
WHEREAS, CITY is willing to complete the tree lighting project and deem the Art
Project condition of approval satisfied for the purpose of consistency with the ongoing lighting
and street improvement project(s).
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. The foregoing Recitals are incorporated into and constitute a part of this Agreement.
2. CITY shall transfer aforementioned Deposit Funds to the 8th Street Project to complete
the Art Project, and agrees to deem the Art Project condition of approval satisfied.
3. OWNER, on behalf of itself, its agents, heirs, administrators, attorneys, successors, and
assigns does hereby release any claims it may have to the Deposit Funds.
4. OWNER agrees to defend, indemnify and hold harmless the City of National City, its
officers and employees, against and from any and all liability, loss, damages to property, injuries
to, or death of any person or persons, and all claims, demands, suites, actions, proceedings,
reasonable attorneys" fees, and defense costs, of any kind or nature, including any claims to the
Deposit Funds, resulting from or arising out of the release/transfer of the Deposit Funds or other
obligations under this Agreement; provided, however, that this indemnification and hold
harmless shall not include any claims or liability arising from the established sole negligence or
willful misconduct of the City, its agents, officers, or employees. The indemnity, defense and
hold harmless obligations contained herein shall survive the termination of this Agreement for
any alleged or actual omission, act, or negligence under this Agreement that occurred during the
term of this Agreement.
MISCELLANEOUS PROVISIONS
A. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which, together, shall constitute but one and the same
instrument.
B. Captions. Any captions to, or headings of, the sections or subsections of this Agreement
are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall
not be used for the interpretation or determination of the validity of this Agreement or any
provision hereof.
2 National City and Centro Indy, LLC;
Art Project - 45 E. I2th, National City
C. No Obligations to Third Parties. Except as otherwise expressly provided herein, the
execution and delivery of this Agreement shall not be deemed to confer any rights upon, or
obligate any of the parties hereto, to any person or entity other than the parties hereto.
D. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby
incorporated herein by this reference for all purposes.
E. Amendment to this Agreement. The terms of this Agreement may not be modified or
amended except by an instrument in writing executed by each of the parties hereto.
F. Waiver. The waiver or failure to enforce any provision of this Agreement shall not
operate as a waiver of any future breach of any such provision or any other provision hereof.
G. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. The OWNER shall comply with all laws, including
federal, state, and local laws, whether now in force or subsequently enacted.
H. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and
communications, oral or written, and contains the entire agreement between the parties as to the
subject matter hereof. No subsequent agreement, representation, or promise made by either party
hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of
any effect unless it is in writing and executed by the party to be bound thereby.
I. Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties hereto.
J. Construction. The parties acknowledge and agree that (i) each party is of equal
bargaining strength; (ii) each party has actively participated in the drafting, preparation and
negotiation of this Agreement; (iii) each such party has consulted with or has had the opportunity
to consult with its own, independent counsel and such other professional advisors as such party
has deemed appropriate, relative to any and all matters contemplated under this Agreement; (iv)
any rule or construction to the effect that ambiguities are to be resolved against the drafting party
shall not apply in the interpretation of this Agreement, or any portions hereof, or any
amendments hereto.
--- Signature Page to Follow ---
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National City and Centro Indy. LLC
Art Project - 45 E. l2th, National City
IN WITNESS WHEREOF, this Agreement is executed by CITY and by OWNER on the
date and year first above written.
CITY OF NATIONAL CITY
Leslie Deese, City Manager
POVED AS TO FORM:
C1`: sia Ga Silva
City Atto
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CENTRO INDY, LLC
By:
(Name)
(Print)
P4Z'StC�`n tt
(Title)
By:
(Name)
(Print)
C o
(Title)
National City and Centro Indy, LLC
Art Project - 45 E. 12th, National City
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
CENTRO CONDOMINIUMS
by and between
45 EAST 12T'i STREET, LLC
A CALIFORNIA LIMITED LIABILITY COMPANY
("Seller")
and
PEDCOR COMMERCIAL DEVELOPMENT, LLC
("Buyer")
October 2 1, 2011
EWBC - PEDCOR-PSA
Exhibit "A"
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
CENTRO CONDOMINIUMS
This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is made and entered into as of October 27 2011, by and
between 45 East 121h Street, LLC a California Limited Liability Company ("Seller") and
PEDCOR COMMERCIAL DEVELOPMENT, LLC ("Buyer"). Seller and Buyer are
sometimes referred to herein individually as a "Party" and collectively as the "Parties".
RECITALS
A. The real property that is the subject of this Agreement (the "Real Property") is
located in the City of National City ("City"), County of San Diego ("County"), State of
California ("State"), which consists of approximately 60 condominium units located at 45 East
12th Street and is more fully described on Exhibit "A" attached hereto.
B. Seller became the owner of the Real Property pursuant to a foreclosure sale and
the Real Property is commonly referred to in the banking industry as "Other Real Property
Owned" ("OREO").
C. On the terms and subject to the conditions contained in this Agreement, Seller
desires to sell and Buyer desires to purchase the Real Property and all of Seller's right, title and
interest, if any, in the following (collectively, together with the Real Property, the "Property"):
(i)
all buildings, improvements and fixtures located on the Real Property;
(ii) all assignable development rights, privileges, entitlements, governmental
permits, licenses, certificates and other governmental approvals, if any, that pertain to the Real
Property including assignable tradenames, trademarks, servicemarks and logos, if any, with
respect to the Real Property (collectively, the "Intangible Rights");
(iv) all personal property, if any, located on the Real Property as of the
Effective Date ("Personal Property"); and
(vi) all easements, rights of way and other rights appurtenant to the Real
Property.
D. As part of Buyer's own due diligence, Buyer verifies that it has reviewed the
information and documents pertaining to the Property that are posted on Seller's broker's weh-
room (www.rcml.com) and the documents regarding the property that was given to Buyer by the
broker.
F. As part of Buyer's own due diligence, Buyer has investigated all applicable
ADA/Accessibility issues and governmental permit approval issues affecting the Property.
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NOW, THEREFORE, in consideration of the promises and covenants herein made, and
for other good and valuable consideration, the receipt and sufficiency of which the Parties
acknowledge, the Parties agree as follows:
1. Recitals Incorporated. The Recitals above are an integral part of this Agreement
and are incorporated herein by reference as though set forth in full
2. Escrow and Closing.
2.1 Opening of Escrow. Upon the mutual execution of this Agreement by the
Parties, the Parties shall open an escrow (the "Escrow") at Lawyers Title Insurance Company,
4100 Newport Place Drive #120, Newport Beach, CA 92660 ("Escrow Holder"), whose address
is set forth below, by delivering an executed copy of this Agreement to Escrow Holder. This
Agreement shall constitute joint escrow instructions to Escrow holder. The Parties shall execute
such additional instructions not inconsistent or conflicting with the provisions of this Agreement
which may be reasonably required by Escrow Holder and shall be bound by Escrow Holder's
instructions; provided, however, if any conflict or inconsistency between the provisions of this
Agreement and the provisions of Escrow Holder's instructions exists or arises, the provisions of
this Agreement shall control. For the purposes of this Agreement, the "Effective Date" shall be
that day on which both Parties have delivered executed copies of this Agreement to Escrow
Holder.
2.2 Closing and Closing Date. The Close of Escrow shall occur on or before the
7th day after the expiration of the Financing Period (the "Closing Date"). As used herein, the
terms "Closing" and "Close of Escrow" shall mean the recordation of the Deed (as hereinafter
defined), conveying the Real Property to Buyer, in the Official Records of the County, and the
disbursement of the Closing Payment (as hereinafter defined) to Seller.
3. Purchase and Sale. 0n the terms and subject to the conditions set forth in this
Agreement, Seller agrees to sell the Property to Buyer and Buyer agrees to purchase the Property
from Seller.
3.1 Loan Guaranties. Notwithstanding anything herein to the contrary, Buyer
acknowledges that Seller is retaining (and shall not transfer to Buyer) any rights, claims, causes of
action of any kind against previous owner of the Property ("Borrower") or any affiliates or related
parties arising in any way from the loan documents between Borrower and Seller (or Seller's
predecessor) and any guaranty in favor of Seller (or Seller's predecessor) with respect to the
Property. Buyer agrees that Seller shall have the right at its sole cost and expense to pursue all
such rights, claims and causes of action and retain any and all recoveries relating thereto.
3.2 Purchase Price. The purchase price for the Property is Nine Million Fifty
Thousand and No/100 Dollars ($9,050,000.00) (the "Purchase Price").
4. Payment of Purchase Price. The Purchase Price shall he paid as follows:
4.1 Deposit. Within Three (3) Business Days after the Effective Date ("Deposit
Date"), Buyer shall deliver to Escrow Holder the sum of Two Hundred Thousand Dollars
($200,000.00) (the "Deposit") by cashier's check or wire transfer. Escrow Holder shall invest the
E W BC.- PGDCOR-PSA
Deposit in an interest bearing account if requested by Buyer and Buyer complies with Escrow
Holder's requirements in connection therewith. If Buyer delivers to Seller or Escrow Holder: (i) a
"Notice of Approval" (as defined in Section 10.2 below) on or before the twenty first (21 S5 clay
following the Effective Date (the "Feasibility Date," and the period ending at 5:00 p.m. PDT/PST
on such date, the "Feasibility Period"); and (ii) a "Financing Confirmation" (as defined in
Section 19 below) on or before the Thirtieth (30°) day following the Effective Date (the
"Financing Date,") and the period ending at 5:00 p.m. PDT/PST on such date, the "Financing
Period"), then, upon receipt of both the Notice of Approval and Financing Confirmation, Escrow
Holder shall immediately release such Deposit outside of Escrow to Seller without further
instructions from the Parties and the Deposit shall be nonrefundable to Buyer under any
circumstance except as set forth in Section 4.3 below. The Deposit shall be applied to payment of
the Purchase Price upon Closing. This Agreement shall only be effective upon Escrow Holder's
receipt of the Deposit pursuant to this Section and if Buyer does not place the Deposit in Escrow
before the 5:00 p.m. PDT/PST on the Deposit Date, this Agreement shall, at Seller's option, upon
notice to Buyer and Escrow Holder, terminate and be of no further force and effect without the
need for further instructions or acknowledgements by the Parties.
4,2 Closing Payment. No later than one (1) Business Day prior to the Closing
Date, Buyer shall deliver to Escrow Holder a sum equal to the Purchase Price (less the Deposit) in
immediately available funds, as increased or decreased by an amount equal to Buyer's share of
prorations, closing costs and cash charges determined in accordance with this Agreement (the
"Closing Payment").
4.3 Refund of Deposit, Notwithstanding anything to the contrary set forth
elsewhere herein the Deposit shall be refundable to Buyer (in accordance with and subject to the
specific terms and conditions of such refund as provided in the subject sections of this Agreement)
upon termination of this Agreement because of: (a) Seller's material default. hereunder; (b)
termination by Buyer in accordance with Section 8.3 as a result of the failure of any of the
conditions to Buyer's obligation to close as set forth in Section 8.2 or elsewhere in this Agreement;
(e) termination by Buyer pursuant to Section 10 as a result of Buyer's investigations of title of the
Property or investigations and reviews of the Property and the Property Documents and such other
matters that Buyer deems necessary or appropriate in determining the feasibility of Buyer's
purchase of the Property; (d) termination by Buyer pursuant to Section 18 as a result of a casualty
or condemnation; (e) termination by Buyer due to Buyer's determination, in its sole and absolute
discretion, that the Property is not economically feasible, prior to the expiration of the Feasibility
Period; or (1) termination by Buyer pursuant to Section 19 as a result of Buyer's failure to secure
satisfactory Financing, as determined by the Buyer in its sole and absolute discretion, from Lender
(as described below in Section 19).
5. Closing Costs, Taxes and Assessments.
5.1 Closing Costs. Seller shall pay (a) the normal premium for a CLTA
standard coverage owner's policy of title insurance, with liability in the amount of the Purchase
Price, showing title to the Property vested in Buyer subject only to the Permitted Exceptions (as
defined below) (the "Title Policy"). Buyer shall pay (i) all additional title insurance premiums for
an ALTA extended coverage Title Policy (if Buyer opts for such coverage) and the costs of any
title endorsements and surveys. All other closing costs related to the transaction shall be paid by
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EWBC.- PEOCOR-PSA
Section 5; and
EW BC,- PEDCOR-PSA
the Parties in the manner consistent with customary practice for real property sales in San Diego
County. Escrow Holder shall notify the Parties in writing of their respective shares of such costs at
least two (2) Business Days prior to the Closing Date.
5.2 Proration. A11 rents (if any) and all non -delinquent general and special real
property taxes and assessments for the Real Property and all non -delinquent expenses for the
Property, including, without limitation, water, sewer, gas, electricity, telephone and other utility
charges, if any, homeowners' association dues and charges (collectively, the "Property
Expenses"), shall be prorated as of 12:00 a.rn. on the day of the Closing. Any prorations which
are not expressly provided for herein shall be made in accordance with customary practice in the
County. Such adjustments, if and to the extent known, shall be paid by Buyer to Seller (if the
prorations result in a net credit to Seller) or by Seller to Buyer (if the prorations result in a net
credit to Buyer). Any such adjustments not capable of being determined as of Closing shall be
paid in accordance with the process described in the immediately preceding sentence, in cash or
other immediately available funds, as soon as practicable following Closing. All delinquent taxes
and delinquent installments or assessments on the Real Property and Property Expenses shall be
paid by Seller at Closing.
5.3 Survival. The terms of this Section 5 shall survive Closing.
6. Deposits by Seller. No later than one (1) Business Day prior to the Closing Date,
Seller shall deposit with Escrow Holder the following:
(a) An original assignment and bill of sale duly executed by Seller in
the fonn of Exhibit "B" attached hereto (the "Assignment and Assumption").
(b) The Deed, in the form of Exhibit "C" attached hereto, duly
executed by Seller and acknowledged;
(c) A duly executed affidavit in the form of Exhibit "D" (the
"Nonforeign Affidavit") and, if the Real Property is located in California, a duly executed
California FTB Form 593-C (the "Form 593-C"); and
(d) Such other customary instruments as are reasonably required by
Escrow Holder or otherwise required to proceed to the Closing and consummate the purchase and
sale of the Property in accordance with the terms of this Agreement; provided that any such
instruments do not increase Seller's liability or obligations under this Agreement.
7. Deposits by Buyer. No later than one (1) Business Day before the Closing Date,
Buyer shall deposit with Escrow Holder the following:
(a) The Closing Payment in immediately available funds;
(b) Buyer's share of closing costs and cash charges, in accordance with
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(c) Such other instruments as are reasonably required by Seller or
Escrow Holder or otherwise required to proceed to the Closing and consummate the purchase and
sale of the Property in accordance with the terms of this Agreement.
8. Conditions to Close of Escrow.
8.1 Conditions to Seller's Obligations. The Closing and Seller's obligation to
consummate the transactions contemplated by this Agreement are subject to the satisfaction of the
following conditions or Seller's written waiver on or before the Closing Date. Seller may waive in
writing any or all of such conditions in its sole and absolute discretion.
(a) Buyer shall have performed all of the obligations to be performed
by Buyer under this Agreement at or prior to the Closing, including without limitation, delivery of
the Deposit described in Section 4.1, delivery of the Closing Payment described in Section 4.2,
and execution and delivery of the documents described in Section 7.
(b) Buyer's representations and warranties herein shall be true and
correct as of the Closing.
8.2 Conditions to Buyer's Obligations. The Closing and Buyer's obligation to
consummate the transactions contemplated by this Agreement are subject to the satisfaction of the
following conditions or Buyer's written waiver thereof on or before the Closing Date. Buyer may
waive in writing any or all of such conditions in its sole and absolute discretion.
(a) Seller shall have made the deposits required in Section 6.
(b) Seller shall have performed all of the obligations to be performed
by Seller under this Agreement at or prior to the Closing.
(c) The Title Company shall be irrevocably committed to issue the
Title Policy without any exceptions for mortgages, deeds of trust, judgment liens, mechanic's or
materialman's liens or any other monetary liens against the Property (other than liens for taxes
and assessments which are not delinquent) and subject only to the Permitted Exceptions.
(d) To the best of Seller's knowledge, Seller's representations and
warranties herein shall be true and correct as of the Closing.
8.3 Termination. In the event each condition set forth in Section 8.2 is not
fulfilled as of the Closing or waived by Buyer, Buyer may, at its option, terminate this Agreement
and Escrow, and the Deposit shall be returned to Buyer. In the event that each condition set forth
in Section 8.1 is not fulfilled as of the Closing or waived by Seller, Seller may, at its option,
terminate this Agreement and Escrow. This Section 8.3 shall in no way limit Seller's remedies
under Section 12, when applicable. Notwithstanding anything herein to the contrary, Buyer's
rights under this Section 8.3 shall be subject to Section 13.2. This Section 8.3 shall survive the
termination of this Agreement for the sole purpose of the return of the Deposit to Buyer after such
termination, when applicable.
9. Closing.
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E W BC.- PEDCOR-PSA
9.1 Escrow Holder's Actions. Upon the Closing Date and when Escrow Holder
holds the items required to be deposited by Buyer and Seller as described above, Escrow Holder is
instructed and authorized to: (a) record the Deed in the Office of the County Recorder of the
County, (b) pay any transfer taxes, (c) instruct the County Recorder to return the Deed to Buyer at
the address indicated thereon, (d) disburse to the order of Seller from the funds deposited into
Escrow by Buyer the Purchase Price less Seller's share of prorations, closing costs, taxes,
assessments and other charges, as applicable, (e) deliver to Buyer the Non -Foreign Affidavit, the
Form 593-C (if applicable) and the Title Policy, and (0 deliver to each Party an original
counterpart of the Assignment and Assumption. Possession of the Property shall he delivered to
Buyer upon the Close of Escrow.
9.2 Escrow Cancellation. If Escrow fails to close due to a Party's default or
breach, the defaulting or breaching Party shall pay all Escrow Cancellation Charges. If Escrow
fails to close for any other reason, Buyer shall pay all Escrow Cancellation Charges. "Escrow
Cancellation Charges" means all fees, charges and expenses actually charged by Escrow Holder
and the Title Company to the parties in connection with the cancellation of the Escrow and the
Title order, if any.
10. Investigations.
10.1 Title Matters. As soon as practicable after the Effective Date, Escrow
Holder shall obtain a preliminary report ("Preliminary Report") for the Property, issued by
Lawyers Title Insurance Company ("Title Company"), together with best available copies of all
documents referenced therein as exceptions to title. On or before that day which is five (5) days
after Buyer's receipt of the Preliminary Title Report, Buyer shall notify Seller in writing of
Buyer's objections to title, if any (the "Disapproved Exceptions"). All exceptions not timely
objected to by Buyer shall be deemed approved (the "Permitted Exceptions"). Buyer need not
object to any mortgages, deeds of trust, judgment liens, mechanic's or materialman's liens or any
other monetary liens against the Property, all of which shall be deemed objected to and none of
which shall be a Permitted Exception. On or before that day which is three (3) business days after
receipt of Buyer's timely objections to title, if any, Seller shall notify Buyer in writing whether
Seller elects, in its sole and absolute discretion, to cause the Title Company to eliminate the
Disapproved Exceptions. Seller's failure to timely respond to Buyer's notice of Disapproved
Exceptions shall be deemed Seller's election not to eliminate any of the Disapproved Exceptions.
If Seller timely elects (or is deemed to have elected) not to eliminate such Disapproved
Exceptions, then unless Buyer shall notify Seller in writing on or before 5:00 p.m. Pacific Time on
the Feasibility Date that Buyer elects to waive its disapproval, Buyer shall be deemed to have
approved title to the Property. If Buyer disapproves title before the expiration of the Feasibility
Date, then Escrow shall terminate, the Deposit shall be returned to Buyer, and Escrow Ilolder shall
immediately return all other documents, instruments and monies to the Party that deposited same.
10.2 Investigations of the Property.
(a) Promptly following the Effective Date, Seller shall provide to
Buyer all material documents concerning the Property in Seller's possession (the "Property
Documents") as listed in Exhibit F. However, the Property Documents shall not include any
reports or documents related to the Borrower or guarantors or any internal credit or other
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regulatory reports or appraisals or any materials that are privileged or proprietary in nature, or
subject to a confidentiality agreement. Without limiting any other provision of this Agreement,
Seller expressly disclaims, and Buyer acknowledges that Seller has not made and does not make
any representations or warranties regarding the veracity, accuracy, or completeness of the
Property Documents. Seller will not be liable for any inaccuracy, misrepresentation, or omission
in such Property Documents, The information contained in the Property Documents shall
continue to be subject to the confidentiality provisions set forth herein, including without
limitation Section 17.16. As used herein, "Seller's Possession" shall mean only those Property
Documents in the actual physical possession of Seller's Authorized Representatives without any
requirement on behalf of Seller to attempt to determine or otherwise seek to obtain any such
information or documents from any other department or location within the financial institution of
Seller. As used herein, "Seller's Authorized Representatives" means the manager of Seller's
OREO Group and other employees of Seller within the OREO Group who have been expressly
empowered by Seller's board of directors to engage in the proposed transactions with Buyer.
Provided further that the failure of Seller to deliver any Property Documents within Seller's
Possession shall not subject Seller to liability with all such liability expressly disclaimed by
Seller.
(b) Buyer shall have until 5:00 p.m. PDT/PST on the Feasibility Date to
perform all investigations and reviews of the Property and the Property Documents and such other
matters that Buyer deems necessary or appropriate in determining the feasibility of Buyer's
purchase of the Property and to notify Seller and Escrow Holder in writing of Buyer's approval or
disapproval of such feasibility in its sole and absolute discretion. In addition to the confidentiality
provisions set forth in Section 17.16 below, Buyer shall reasonably notify Seller of all contacts
(whether verbal or in person), with the City, County or any governmental agency concerning the
Property, and shall not meet with or contact (verbally or in person) the City, County or any other
governmental agency without reasonable prior notice to Seller, which notice may be given by
telephone or electronic mail. Seller shall he entitled to participate in all meetings and contacts
with the City, County or other governmental agency. If Buyer approves of the Property and the
Property Documents, in Buyer's sole and absolute discretion, during the Feasibility Period, Buyer
shall deliver written notice of such approval (a "Notice of Approval") to Seller and Escrow
Holder before 5:00 p.m. on the Feasibility Expiration Date. If for any reason Buyer determines
during the Feasibility Period that, in Buyer's sole and absolute discretion, it disapproves of the
Property Documents and/or the Property for any reason whatsoever, Buyer may terminate this
Agreement and cancel escrow without any liability by delivering written Notice of Terniination
("Notice of Cancellation") to Escrow Holder and Seller before 5:00 p.m. on the Feasibility Date.
The failure of Buyer to deliver either a Notice of Approval or a Notice of Cancellation on or
before 5:00 p.m. on the Feasibility Date shall be deemed to constitute Buyer's Notice of
Approval- In the event of delivery of the Notice of Termination, Buyer's and Seller's obligations
to each other under this Agreement shall automatically terminate, except for Buyer's
indemnification obligations under this Section 10.2, and Buyer's obligations to return the
Property Documents and other rnaterials to Seller as provided in Section 10.2(d), which
obligations (and any other of Buyer's obligations which survive termination as set forth in this
Agreement and the confidentiality provisions of Section 17.16) shall survive such termination,
Escrow shall be cancelled and Escrow Holder shall return the Deposit to Buyer, after first
deducting the Escrow Cancellation Charges, if any. Buyer's investigations under this Section
may include, without limitation: (i) review of the Property Documents; (ii) physical inspection of
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the Property and environmental assessment of the Property; and (iii) all other inquiries,
investigations, and evaluations pertaining to the Property as Buyer has deemed appropriate,
including without limitation, evaluation of the feasibility of any planned development and
suitability of the Property for Buyer's intended use.
(c) Without limiting the provisions of Section 10.2(a, during the
Feasibility Period, Buyer shall have the right to enter the Property to perform such non -intrusive
inspections and examinations of the Property as Buyer deems appropriate in connection with its
review of the Property. Buyer agrees to indemnify, defend and hold harmless Seller and the
Property from and against any liabilities, damages, expenses (including attorneys' fees), liens and
claims of any nature whatsoever which may be asserted against Seller or the Property by reason
of such activities by Buyer or on its behalf. Without in any way limiting the generality of the
foregoing, Buyer further agrees that in connection with its inspections and entry on to the
Property:
(i)
cost and expense;
any physical testing or inspections shall be at Buyer's sole
(ii) the persons or entities performing such tests shall be
properly licensed and qualified and shall have obtained all appropriate pennits for performing
such tests;
(iii) Seller shall have the right of approval (which may be
approved or withheld in Seller's sole discretion) of any proposed Phase 2 testing, physical or
invasive or intrusive testing or investigation of the Property;
(iv) Buyer shall advise Seller in advance of the dates of all tests
and shall schedule all tests during normal business hours whenever feasible unless otherwise
requested by Seller;
(v) Seller shall have the right to have a representative of Seller
accompany Buyer and Buyer's representatives, agents, consultants, designees or invitees while
they are on the Property;
(vi) If Buyer in any way damages or disrupts the condition of
the Property, Buyer shall promptly restore the Property at Buyer's sole cost and expense, and
until restoration is complete, Buyer shall take all steps necessary to ensure that any conditions on
the Property created by Buyer's testing or entry onto the Property shall not create any dangerous,
unhealthy or unsightly conditions on the Property; and
(vii) Before any entry onto the Property by Buyer or its agents,
contractors, subcontractors or employees, Buyer shall deliver to Scaler a certificate of insurance
under Buyer's commercial liability insurance policy with a financially responsible insurance
company, covering (a) the activities of Buyer, and Buyer's agents, consultants, contractors,
subcontractors and employees on or upon the Property, and (b) Buyer's indemnity obligations set
forth in this Section. Such certificate shall evidence that such insurance policy has a per
occurrence limit of at least One Million Dollars ($1,000,00D) and an aggregate limit of at least
8
E W n C.- PEDCOR-PSA
Two Million Dollars ($2,000,000), shall name Seller as an additional insured (the "Additional
Insureds"), shall be primary and non-contributing with any other insurance available to Seller,
shall be issued on an "occurrence" basis, shall contain a full waiver of subrogation clause, and
shall not be cancelable or subject to reduction in coverage except on at least thirty (30) days'
prior written notice to Seller. Buyer shall maintain such insurance coverage in force at all times
before Closing.
(d) If Buyer terminates this Agreement for any reason, then within five
(5) days after such termination, and as a condition to return of the Deposit (unless the Agreement
is terminated as a result of Seller's material default hereunder), Buyer shall return to Seller all
originals and copies of all Property Documents, studies, reports and other materials Buyer may
have received from Seller; and Buyer shall also deliver to Seller without payment of any fee or
charge, upon Seller's written request, without representation or warranty by Buyer, and without
recourse against Buyer, copies of all reports, studies, plans, assessments, analyses or other
materials obtained or prepared by or for Buyer in connection with its feasibility investigations
and/or its proposed acquisition, development and marketing of the Property. Buyer's obligations
under this Section 10.2(d) shall survive the termination of this Agreement.
(e) Buyer's indemnification and insurance obligations under this
Section 10.2 shall survive the Closing or the earlier termination of Escrow or this Agreement.
11. Buyer's Reepresentations. Warranties and Covenants.
11.1 Buyer's Representations, Warranties and Covenants. Buyer makes the
following representations and warranties to Seller as of the Effective Date and at the Closing Date:
(a) Organization. Buyer is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Indiana and is qualified to do
business in the state of California.
(b) Authority; Binding Effect. The execution, delivery and
performance by Buyer of this Agreement, and the consummation of the transactions contemplated
by this Agreement have been duly and validly authorized by all necessary action on the part of
Buyer. Buyer has the power and authority to enter into this Agreernent and to carry out the
transactions contemplated by this Agreement. This Agreement is a valid and binding agreement
of Buyer, enforceable in accordance with its terms.
(c) No Conflict. Neither the execution, delivery nor performance of
this Agreement by Buyer, nor the consummation by Buyer of the transactions contemplated by
this Agreernent, will conflict with, or result in a breach of, any of the terms, conditions or
provisions of any of the organizational documents of Buyer or any agreements or orders by which
Buyer may be bound.
(d) OFAC List. Buyer and each of its subsidiaries, predecessors, direct
and indirect owners (collectively, the `Buyer Parties") have at all applicable times been, are
now, and will be as of the Closing Date, in compliance with all laws, statutes, rules and
regulations or any federal, state or local governmental authority in the United States of Arnerica
9
EWBC.- PEDCOR-PSA
applicable to the Buyer Parties and all beneficial owners of the Buyer Parties, including, without
limitation, the requirements of Executive Order No. 13224, 66 Fed Reg. 49079 (September 25,
2001) (the "Order") and other similar requirements contained in the rules and regulations of the
Office of Foreign Asset Control, Department of the Treasury ("OFAC") and in any enabling
legislation in respect thereof (the Order and such other rules, regulations, legislation, or orders are
collectively called the "Orders"). After due investigation and inquiry, Buyer has no knowledge
or notice of any fact, event, circumstance, situation or condition which could reasonably be
expected to result in (i) any action, proceeding, investigation, charge, claim, report or notice being
tiled, commenced or threatened against any of them alleging any failure to comply with the
Orders, or (ii) the imposition of any civil or criminal penalty against any of them for any failure to
so comply. None of the Buyer Parties are owned or controlled by, nor acts for or on behalf of,
any person or entity on the Specially Designated Nationals and Blocked Persons List maintained
by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations
maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other
applicable Orders (collectively the "Lists") or any other person or entity who has been
determined by competent authority to he subject to the prohibitions contained in the Orders.
(e) Adequacy of Information. Buyer acknowledges, represents,
warrants and agrees that Seller shall not be responsible for and makes no representations or
warranties about the accuracy or completeness of any information concerning the Property
obtained by Buyer from any source. Buyer acknowledges, represents, warrants and agrees that
Buyer has not relied and shall not rely on Seller in any manner whatsoever with respect to any
documents or information or anything else relating to the Property. Buyer represents, warrants
and agrees that Buyer shall have no rights against the Indenuutees (as defined in Section 11.1(b))
as a consequence of any information or misinformation obtained, completeness or incompleteness
of documents, inaccuracies in any information or documents, or failure of any person to make any
disclosure. Except as otherwise provided in this Agreement. Seller shall have no obligation to
provide to, or make available to Buyer any documents or information concerning the Property,
but shall make reasonable efforts to obtain such docwnentation or information requested by
Buyer.
(f) No Side Agreements or Representations. No person acting on
behalf of Seller is authorized to make, and by execution hereof, Buyer acknowledges that neither
Seller nor any person acting on behalf of Seller has made any representation, agreement,
statement, warranty, guarantee or promise regarding the Property or the transaction contemplated
herein or the zoning, construction, physical condition or other status of the Property.
(g) Purchase "AS -IS". Buyer acknowledges that it is a sophisticated
real estate developer and/or investor and is sufficiently knowledgeable and experienced to be able
to evaluate the risk and merits of the purchase of the Property from Seller. Buyer further
acknowledges that Seller is not a sophisticated real estate developer or investor and Seller hereby
disclaims any and all liability that may be imputed to Seller based on its knowledge and
experience with real estate and real estate investments. Buyer further acknowledges that Seller
acquired the Property pursuant to a foreclosure sale, that Seller was not the builder or responsible
for the construction of any improvements on the Property, and that Seller has had no involvement
in the construction, development or entitlement of the Property. Buyer acknowledges that it has
had an adequate opportunity to inspect the Property and to investigate its physical and legal
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EWOC,- PEDCOR-PSA
characteristics and conditions of the Property. Buyer expressly acknowledges and agrees, and
represents and warrants to Seller, that Buyer is purchasing the Property "AS -IS", "WHERE -IS"
and "WITH ALL FAULTS", after such inspection, analysis, examination and investigation Buyer
cares to make and expressly without Seller's covenant, warranty or representation as to legal
condition, pending or threatened litigation, physical condition, title, leases, rents, revenues,
income, expenses, operation, access, zoning or other regulation, entitlements, conditions of
approval, governmental obligations, compliance or non-compliance with law, property taxes and
assessments, suitability for particular purposes or any other matter whatsoever. Seller has no
obligation to make repairs, replacements or improvements to the Property, or to pay any fees,
costs or expenses related to the Property (except for those prorations to be paid pursuant to
Section 5.2 hereof). Buyer acknowledges and agrees that Seller has not made, does not make and
specifically negates and disclaims any representations, warranties, promises, covenants,
agreements or guaranties of any kind or character whatsoever, whether express or implied, oral or
written, past, present or future, of, as to, concerning or with respect to (a) the value of the
Property; (b) the income to be derived from the Property; (c) the suitability of the Property for any
and all activities and uses which Buyer may conduct thereon, including the possibilities for
development of the Property; (d) the habitability, marketability, merchantability, profitability or
fitness for a particular purpose of the Property; (e) the manner, quality, state of repair or lack of
repair of the Property; (f) the nature, quality or condition of the Property, including without
limitation, soils and geology and environmental condition; (g) the conformity of the Property to
past, current or future applicable zoning or building requirements; (h) the compliance of or by the
Property or its operation with any laws, rules, ordinances or regulations of any applicable
governmental authority or body; (i) compliance with any environmental protection, pollution or
land use laws, rules, regulation, orders or requirements, including but not limited to, Title III of
the Americans with Disabilities Act of 1990, California Health and Safety Code the Federal
Water Pollution Control Act, the Federal Resource Conservation and Recovery Act, the
U.S. Environmental Protection Agency regulations at 40 CFR part 261, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the Resources
Conservation and Recovery Act of 1976, the Clean Water Act, the Safe Drinking Water Act, the
Hazardous Materials Transportation Act and the Toxic Substance Control Act, as any of the
foregoing may be amended from time to time and regulations promulgated under any of the
foregoing from time to time; (j) the presence or absence of Hazardous Substances (as defined on
Exhibit "E" attached hereto) at, on, under, or adjacent to the Property; (k) the conformity of the
Property to past, current or future applicable zoning or building requirements; (1) deficiency of
any drainage or support; (m) that the Property may be located on or near earthquake faults; (n) the
existence or non-existence of land use, zoning or building entitlements affecting the Property;
(o) the land use status of the Property, including, but not limited to, general plan status, specific
plan status, zoning status, compliance with any subdivision map act or the subdivision ordinances
of the City, County or State or any other entitlements; (p) the applicability of the Federal or State
endangered species acts and the existence of any species protected thereunder; (q) any non-
compliance of the Property or any improvements thereon with the standards set forth in any City,
County or State construction standards; (r) the status of property taxes or assessments; (s) the
compliance of or by the Property or its operation with any development agreements, covenants,
conditions or restrictions, community facilities district requirements, governmental approvals, or
any other agreements or arrangements related to the development, use or operation of the
Property; (t) the physical condition of the Property or any improvements thereon; (u) the nature,
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EWBC.- PEDCOR-PSA
quality, assignability or condition of the Intangible Rights; (v) any defaults, disputes, or
unsatisfied conditions or requirements with respect to the Property, any master development or
any governmental authority; (w) disputes between any governmental authority or any other
Person; (x) the existence of continuing obligations or liabilities to which the Property or any
owner thereof may be subject; or (y) any other matter concerning the Property. Buyer further
acknowledges and agrees that having obtained and examined such information and documentation
affecting the Property as Buyer has deemed necessary or appropriate, Buyer is relying solely on
its own investigations and review, and not on any information provided or to be provided by
Seller, Further, except for the express representations and warranties of Seller contained in this
Agreement, Buyer expressly acknowledges and agrees that it is assuming all of the risks and
obligations attendant to ownership of the Property, including without limitation, those identified,
described or otherwise referred to in clause (a) through (y) above. This provision shall survive
the Close of Escrow, Buyer also acknowledges that, due to its previous real estate experience, it
is knowledgeable about the effect and impact of an "AS -IS" clause such as set forth in this
Section.
(h) Release. Except for those obligations of Seller which, by the
express terms of this Agreement, survive Closing, effective upon the Close of Escrow, Buyer, on
behalf of itself, and to the extent it may be authorized to do so, its shareholders, officers,
directors, employees, partners, investors, members, managers, parents, subsidiaries, affiliates,
agents, servants, attorneys, representatives, successors and assigns and anyone claiming by,
through or under Buyer (collectively, "Buyer's Representatives") fully, unconditionally and
irrevocably releases Seller and its shareholders, officers, directors, employees, partners, investors,
members, managers, parents, subsidiaries, affiliates, agents, servants, attorneys, representatives,
successors and assigns (collectively, the "Indemnitees") from any and all claims that Buyer or
any of Buyer's Representatives may now have or hereafter acquire against any of the Indemnitees
for any costs, fees, loss, liability, damage, expenses, demand, fine, penalty, action or cause of
action arising from or related to any conditions existing or events occurring on, in or about the
Property whether occurring before, after or at the Closing, including without limitation (a) those
identified, described or otherwise referred to in Section 11.1(g) above, (b) any construction
defects, errors, omissions or other conditions, latent or otherwise, including, without limitation,
environmental matters, affecting the Property, or any portion thereof, (c) any defaults by the prior
owner and/or Seller under any governmental approvals, conditions and/or entitlements or with
any third parties relating to the Property or its development, and the use, release or disposal on, in
or under the Property of any Hazardous Substance and the environmental condition of the
Property, and/or (d) any clairns based on or related to the content, accuracy or completeness of
any information concerning the Property obtained by Buyer from any source, including, without
limitation, Seller and Seller's agents and brokers. This provision shall survive the Close of
Escrow This release includes claims of which Buyer is presently unaware or which Buyer does
not presently suspect to exist which, if known by Buyer, would materially affect Buyer's release
of the Indemnitees. This release does not include Seller's obligations, representations and
warranties made in this Agreement, nor does this release include or in any way impair or affect
Buyer's right to enforce the terms of this Agreement. In connection with this release, Buyer
specifically waives the provision of California Civil Code Section 1542, which provides as
follows:
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EWllC.- PCDCOR-PSA
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR EXPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN TO
HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITI-I THE DEBTOR.
This release by Buyer shall constitute a complete defense to any claim, cause of action,
defense, contract, liability, indebtedness or obligation released pursuant to this release.
Nothing in this release shall be construed as (or shall be admissible in any legal action or
proceeding as) an admission by Seller or any other released party that any defense,
indebtedness, obligation, liability, claim or cause of action exists which is within the scope
of those hereby released.
Buyer's Initials
(i) Indemnity. As a material part of the consideration for this
Agreement, and to the maximum extent permitted by law, Buyer shall indemnify, protect, defend
and hold harmless Seller and the hmdemnitees, with counsel reasonably acceptable to Seller, from
and against any and all third party claims, liabilities, damages, costs, fines, penalties, expenses
and fees (including attorneys' fees, court and litigation costs and fees of expert witnesses)
resulting or arising from or in any way connected with any of the following pertaining to the
Property: (a) the use, release or disposal on, in or under the Property of any Hazardous Substance
caused by Buyer or its employees, agents or contractors, (b) Buyer's ownership, construction,
development, use, leasing, marketing or sale of the Property (or any portion thereof) in any way,
and (c) any claims of third parties, including purchasers of the Property, or any portion thereof,
relating to any construction defects, errors, omission or other conditions or matters, latent or
otherwise, affecting the Property, or any portion thereof, and/or (d) Buyer's failure to comply
with Section 17.16. In addition, upon Closing, Seller shall have no responsibility for any of the
following that relates to the Property and arise from events occurring after the Close of Escrow (i)
any claims, actions, causes of action, demands, proceedings and suits of any nature whatsoever,
(ii) any mechanics liens, stop notices and other lien claims, (iii) all unfunded obligations,
including, without limitation, any obligations under any set aside letters, (iv) all property taxes,
assessments, home owner association dues, management obligations, development obligations
and fees and costs payable to governmental entities, and (v) any other liabilities and obligations
with respect to the Property, and Buyer shall indemnify, protect, defend and hold harmless Seller
and the Indemnitecs (as defined below), with counsel reasonably acceptable to Seller, from and
against any and all third party claims, liabilities, damages, costs, fines, penalties, expenses and
fees (including attorneys' fees, court and litigation costs and fees of expert witnesses) resulting or
arising from or in any way connected with the same. This Section 11.1(i) shall survive the
Closing.
(j) Pennits and Approvals. Immediately following the Closing Date,
but in no event later than one hundred twenty (120) days following the Closing Date, at Buyer's
sole cost and expense, Buyer shall cause Buyer's name to be substituted on all governmental
related permits and approvals related to the Property (to the extent such permits and approvals are
13
EWDC.- PEDCOR-PSA
assignable), and Buyer shall provide Seller with written evidence of such substitution. This
Section 11.1(i) shall survive Closing.
11.2 Seller's Representations, Warranties and Covenants. Seller makes the
following representations and warranties to Buyer as of the Effective Date and at the Closing Date,
which representations and warranties shall survive Closing for a period of six (6) months:
(a) Authority. This Agreement and all documents contemplated
hereunder to be executed by Seller have been duly authorized by all requisite action on the part of
Seller. Seller has the full authority to sell the Property without the necessity of third party
consents or approvals.
(b) Organization. Seller is a duly formed bank validly existing under
the laws of the United States and is qualified to do business in the State. Seller has the full right,
power and authority to enter into and carry out the transactions contemplated by this Agreement.
(c) Disclaimer. Seller hereby disclaims any representations,
warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever
whether express or implied, oral or written, past, present or future, of, as to, concerning or with
respect to the Property, including, without limitation, those matters set fortis in Section 11,1(g)
above.
12. LIQUIDATED DAMAGES. IN TIIE EVENT BUYER DEFAULTS UNDER
THE TERMS OF THIS AGREEMENT AND SELLER TERMINATES THIS
AGREEMENT AS A RESULT THEREOF OR IF CLOSING OTHERWISE FAILS TO
OCCUR BECAUSE OF BUYER'S DEFAULT, SELLER WILL BE DAMAGED AND
WILL BE ENTITLED TO COMPENSATION FOR THOSE DAMAGES, BUT SUCH
DAMAGES WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO
ASCERTAIN FOR THE FOLLOWING REASONS: THE DAMAGES TO WHICH
SELLER WOULD BE ENTITLED IN A COURT OF LAW WILL BE BASED IN PART
ON THE DIFFERENCE BETWEEN THE ACTUAL VALUE OF THE PROPERTY AT
THE TIME SET FOR THE CLOSING AND THE PURCHASE PRICE AS SET FORTH
IN THIS AGREEMENT; PROOF OF THE AMOUNT OF SUCH DAMAGES WILL BE
BASED ON OPINIONS OF VALUE OF THE PROPERTY, WHICH CAN VARY IN
SIGNIFICANT AMOUNTS; AND IT IS EXTREMELY DIFFICULT TO PREDICT AS
OF TIIE DATE ON WHICH THIS AGREEMENT IS ENTERED INTO WHETHER THE
VALUE OF THE PROPERTY WILL INCREASE OR DECREASE AS OF THE DATE
SET FOR THE CLOSING. BUYER DESIRES TO LIMIT THE AMOUNT OF
DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH
THIS AGREEMENT. BOTH BUYER AND SELLER WISH TO AVOID THE COSTS
AND LENGTHY DELAYS THAT WOULD RESULT IF SELLER FILED A LAWSUIT
TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT.
IN THE EVENT BUYER DEFAULTS UNDER THE TERMS OF THIS
AGREEMENT, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT BY GIVING WRITTEN NOTICE TO BUYER AND ESCROW HOLDER.
IF CLOSING FAILS TO OCCUR BECAUSE OF BUYER'S DEFAULT, THEN THIS
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EWiC.- PEDCOR-PSA
AGREEMENT SHALL AUTOMATICALLY TERMINATE WITHOUT FURTHER
NOTICE, IF THE AGREEMENT IS TERMINATED AS SET FORTH HEREIN, THE
PARTIES SHALL BE RELIEVED OF THEIR OBLIGATIONS HEREUNDER EXCEPT
AS EXPRESSLY PROVIDED OTHERWISE HEREIN, AND TIIE DEPOSIT SHALL BE
DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S DAMAGES
AND SHALL BE RETAINED BY/DISBURSED 'TO SELLER AS LIQUIDATED
DAMAGES. SELLER'S SOLE AND EXCLUSIVE REMEDY (EXCEPT AS SET FORTH
BELOW) IN THE EVENT ESCROW FAILS TO CLOSE BECAUSE OF BUYER'S
DEFAULT SHALL BE LIMITED TO RECEIPT AND RETENTION OF THE DEPOSIT.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY I'TS TERMS. SELLER WAIVES
ANY RIGHT TO SPECIFICALLY ENFORCE BUYER'S OBLIGATION TO
PURCHASE THE PROPERTY.
NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED
DAMAGES PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO (I) RECEIVE
REIMBURSEMENT FOR OR RECOVER DAMAGES IN CONNECTION WITH
BUYER'S INDEMNITY OF SELLER AND/OR BREACH OF BUYER'S OBLIGATIONS
UNDER SECTIONS 1I.1(h), 11.1(i), 15 OR 18.16, (II) INJUNCTIVE RELIEF FOR
BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTIONS 11.1(h), 11.1(i),
15 OR 18.16 AND/OR (III) PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW
OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS
AGREEMENT, BUYER OR ANY PARTY RELATED TO OR AFFILIATED WITH
BUYER ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD
OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR,
INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY. THE PARTIES
ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS
NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF
ANY LAW, BUT RATIIER IS INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO SELLER PURSUANT TO THE LAWS OF TIIE STATE.
THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
BUYER'S INITIALS SELLER'S INITIALS
13. Buyer's Remedies.
13.1 Seller's Cure Rights. In the event of any breach of this Agreement by
Seller, the Buyer shall give the Seller written notice of breach and Seller shall have the right to
cure such breach until fifteen (15) days following written notice from Buyer before Seller is in
default under this Agreement. If the time for Seller to cure such breach extends past the Closing
Date, then the Closing Date shall be automatically extended.
15
EWDC.- PLDCOR-PSA
13.2 Seller Default.
(a) In the event Closing fails to occur because of Seller's default,
Buyer; at its option, shall have the right, as its sole and exclusive remedy with respect to such
default, to receive the return of the Deposit, together with all interest earned thereon, plus ONE
THOUSAND AND NO/100 DOLLARS ($1,000.00) in order to cover expenses related to due
diligence complete by Buyer, whereupon the parties shall be released from all further obligations
under this Agreement, except those obligations which are specifically stated to survive the
termination of this transaction. Buyer hereby expressly waives Buyer's right to any other rights
or remedies at law or in equity, including without limitation, the right to seek specific
performance of Seller's obligations under this Agreement.
(b) Section 13.2 shall survive the termination of this Agreement for the
sole purpose of the return of the Deposit to Buyer after such termination, when applicable.
13.3 Waiver of Special Damages. Buyer hereby expressly waives Buyer's right
to sue for punitive, special or consequential damages. This Section shall survive the Closing.
14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR TIIE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
IIERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
1 S. Real Estate Brokerage Commission. Buyer and Seller represent to each other that
it has not engaged or dealt with any broker, finder or other real estate agent in connection with
this Agreement or is obligated to pay any real estate brokerage or other commission or fee in
connection with the sale of the Property to Buyer except for Seller's obligation to pay a
commission to Peter Scepanovic at Collier's International pursuant to separate written
agreements. Such commissions shall under no circumstance be payable unless and until the
transaction contemplated hereby is closed in accordance with the terms of this Agreement.
Buyer and Seller shall indemnify, defend and hold each other free and harmless from and against
all costs and liabilities including, without limitation, attorneys' fees and the costs and expenses
of litigation, for causes of action or proceedings which may be instituted by any broker, agent or
finder, licensed or otherwise, claiming through, under or by reason of the conduct of the
indemnifying Party in connection with this transaction. The Parties further agree that no broker
shall be a party to or a third party beneficiary of this Agreement or the Escrow, and that no
consent of any broker shall be necessary for any agreement, amendment or document with
16
E W B C - PEDCOR-PSA
respect to the transaction contemplated by this Agreement. This Section 15 shall survive the
Closing.
16. Back-up Offers. Prior to the Feasibility Expiration Date, Seller shall have the
right to entertain, negotiate, pursue, accept and execute "back-up" offers and agreements from
prospective purchases, which back-up offers and agreements shall become effective only in the
event that this Agreement is terminated for any reason.
17. Miscellaneous.
17.1 Assignment. Prior to the Closing, Buyer shall have the right to nominate in
writing to Seller another entity to take title to the Property at Closing with Seller's prior written
consent, which shall not be unreasonably withheld, conditioned or delayed; provided that, in any
event (a) each of the representations and warranties of Buyer set forth herein shall remain true and
correct as to such nominee, (b) the nominee is controlled by Buyer, (c) Buyer is not in default of
any of its covenants or obligations under this Agreement at the time of such nomination, (d)
notwithstanding any such nomination, Buyer shall not be released from its liabilities and
obligations under this Agreement, and (e) such assignment shall not be a condition of or delay
Closing.
17.2 No Modifications. No addition to or modification of any term or provision
of this Agreement shall be effective unless set forth in writing and signed by both Seller and
Buyer.
17.3 Construction of Agreement. Each Party and attorneys for each Party have
participated in the drafting and preparation of this Agreement. Therefore, the provisions of this
Agreement shall not he construed in favor of or against either Party, but shall be construed as if
both Parties equally prepared this Agreement.
17.4 Headings. The paragraph and section headings herein are used only for the
purpose of convenience only and shall not be deemed to limit the subject of the paragraphs of this
Agreement or to be considered in their construction.
17.5 Governing Law. The laws of the State applicable to contracts to be
performed wholly within the State shall govern this Agreement.
17.6 Time of the Essence. Time is of the essence of each and every provision of
this Agreement. Unless Business Days are expressly provided for, all references to "days" herein
shall refer to consecutive calendar days. If the Closing Date or any other date or time period
provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday in
the State, then such date shall automatically be extended to the next day which is not a Saturday,
Sunday or federal, state or legal holiday in the State. For purposes of this Agreement, "Business
Day" means a day other than a Saturday, Sunday or holiday on which national banking
institutions, the County recorder or escrow companies in the County are closed; if the date upon
which the Closing Date or any other date or time period provided for in this Agreement is or ends
on a day other than a Business Day, then such date shall automatically be extended until the next
Business Day.
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EWIIC.- PEDCOR-PSA
17.7 Successors and Assigns. Subject to the provisions of Section 18.1, all of the
provisions of this Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Parties.
17.8 Further Assurances. Each of the Parties shall execute and deliver any and
all additional papers, documents, and other assurances, and shall do any and all acts and things
reasonably necessary in connection with the performance of their obligations hereunder and to
carry out the intent of this Agreement.
17.9 No Waiver. The waiver by one Party of the performance of any covenant,
condition or promise, or of the time for performing any act, under this Agreement shall not
invalidate this Agreement nor shall it be considered a waiver by such Party of any other covenant,
condition or promise, or of the time for performing any other act required, under this Agreement.
The exercise of any remedy provided in this Agreement shall not be a waiver of any remedy
provided by law, and the provisions of this Agreement for any remedy shall not exclude any other
remedies unless they are expressly excluded.
17.10 Gender and Number. En this Agreement the masculine, feminine and neuter
genders and the singular and the plural include one another, unless the context requires otherwise.
17.1.1 Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and shall supersede all prior and
contemporaneous agreements, representations, negotiations and tmderstandings of the Parties, oral
or written. The foregoing sentence shall in no way affect the validity of any instrument executed
by the Parties in the form of the exhibits attached to this Agreement.
17.12 Incorporation of Exhibits. All exhibits to this Agreement are incorporated
herein by this reference.
17.13 Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which together shall constitute a single Agreement.
The signature page of any counterpart may be detached therefrom without impairing the legal
effect of the signature(s) thereon provided such signature page is attached to any other counterpart
identical thereto except having additional signature pages executed by the other Party.
17.14 No Third Party Beneficiaries. This Agreement is made solely for the .benefit
of the parties to this Agreement and their respective permitted successors and assigns, and no other
person or entity shall have or acquire any right by virtue of this Agreement.
17.15 Notices. Any notice to be given hereunder to either Party or to Escrow
Holder shall be in writing and shall be given either by confirmed facsimile, overnight courier,
personal delivery (including express or courier service), or by registered or certified mail, with
return receipt requested, postage prepaid and addressed as follows:
To Seller:
E W BC'.- PEDCOR-PSA
45 East 12th Street. LLC
c/o East West Bank
555 Montgomery St
San Francisco, CA 94] 1 1
18
and a copy to:
To Buyer:
To Escrow Holder:
Attention: Michelle Ly
Telephone: 415-315-2852
E-Mail: Michelle.Ly@eastwestbank.com
East West Bank
555 Montgomery St. M/S 129M
San Francisco, CA 94111
Attention: Dennis Lee
Telephone: 415-3 1 5-2832
E-Mail: Demus.Lee@eastwestbank.com
Pedcor Commercial Development, LLC
770 3`d Avenue S.W.
Carmel, IN 46032
Attention: Andrew I-Ield
Telephone: 317-660-3 3 8 9
E-Mail: aheldnupedcor.net
Lawyers Title Insurance Company
4100 Newport Place Drive It120
Newport Beach, CA 92660
Attention: Dawn Niehaus
Telephone: 949-724-3166
Facsimile: 949-202-3916
Either Party may, by written notice to the other and to Escrow Holder, designate a
different address which shall be substituted for the one specified above. Any such notice shall be
deemed to have been delivered (i) on the date of delivery if personally delivered or transmitted
by facsimile transmission, (ii) if sent by overnight courier, one Business Day after delivery to the
subject overnight courier, or (iii) three (3) Business Days after mailing if mailed by first-class
mail, postage prepaid, to the parties at their addresses set forth above, or such other address
designated from time to time in writing by such party to all other parties.
17.16 Confidentiality. Each Party agrees that it is an essential economic element
of this Agreement that any proprietary non-public information related to the parties or their
affiliates or the Property revealed, disclosed or discovered in connection with the transactions
contemplated by this Agreement and, during the Escrow period, the terms of this Agreement,
remain strictly confidential. Therefore, except as otherwise expressly provided in this Section
17.16, the parties, their agents and Escrow Holder hereby agree to strictly maintain the
confidentiality of this Agreement and its terms, and any such non-public proprietary information
that may be revealed, disclosed or discovered during the course of the offers, counteroffers and
other negotiations relating to this Agreement and the purchase and sale of the Property or during
the course of Buyer's investigation and reviews relating to the acquisition of the Property. The
parties and Escrow Holder agree that they shalt not disclose any such non-public information nor
suffer, permit, cause or allow, any of their respective representatives, employees and/or agents to
19
EWE3C.- PEDCOR-PSA
disclose, whether intentionally, negligently or otherwise any such non-public information except:
(i) as may be required by law or valid legal process (reasonable notice of the receipt of which each
party agrees to provide to the other party, so that the other party will have a reasonable opportunity
to seek a protective order before disclosure pursuant to such legal process), (ii) as such disclosure
to Buyer's lenders, financial partners, investors, accountants, attorneys and consultants
(collectively "Buyer Parties") may be necessary in order for Buyer to perfonn or complete its
investigations or to consummate the purchase of the Property pursuant to this Agreement, (iii) as
such disclosures are required by Seller under the rules and regulations of the Securities and
Exchange Act of 1934, as amended, by Seller's regulators, or Seller's auditors, (iv) as such
disclosures are related to information which now is or hereafter becomes known or available to the
public (including, without limitation, any information filed with any governmental agency and
known or available to the public) other than a result of a disclosure by Buyer in breach of this
Agreement, or (v) as such disclosures are with representatives of the City (or any other
governmental authority) concerning the Property and any development thereof. If any such non-
public information is so disclosed to Buyer Parties, then Buyer agrees to notify any such Buyer
Parties that such information is confidential and may not be further disseminated without the
consent of Seller. Further, Buyer shall be responsible for, and shall indemnify Seller in connection
with any claims, actions, damages, fees, costs and expenses (including reasonable attorneys' fees),
relating to or arising from any breach by Buyer or any Buyer Parties of this Section 17.16. If
Closing does not occur and this Agreement is terminated, then the provisions of this Section 17.16
shall survive such termination for a period of one (1) year. If Closing does occur, then the
provisions of this Section 17.16 shall no longer apply.
17.17 Natural Hazard Report Compliance. Buyer and Seller acknowledge that
Seller may be required to disclose if the Property lies within the following natural hazard areas or
zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency;
(ii) an area of potential flooding; (iii) a very high fire hazard severity zone; (iv) a wild land area
that may contain substantial forest fire risks and hazards; (v) earthquake fault zone; or (vi) a
seismic hazard. If and to the extent such obligations exist, Escrow Holder shall engage the
services of Disclosure Source, or other expert of Seller's choice (which, in such capacity, is herein
called the "Natural Hazard Expert") to examine the maps and other information specifically
made available to the public by government agencies for the purposes of enabling Seller to fulfill
its disclosure obligations with respect to the natural hazards referred to in California Civil Code
Section 1103 et. seq. and to report the result of its examination to Buyer and Seller in writing. The
written report prepared by the Natural Hazard Expert regarding the results of its full examination
will fully and completely discharge Seller from its disclosure obligations referred to herein, if and
to the extent any such obligations exist, and, for the purpose of this Agreement, the provisions of
Civil Code Section 1103 et seq. regarding non -liability of Seller for errors or omissions not within
its personal knowledge shall be deemed to apply and the Natural Ilazard Expert shall be deemed to
be an expert, -dealing with matters within the scope of its expertise with respect to the examination
and written report regarding the natural hazards referred to above. If the Closing fails to occur for
any reason other than a termination of this Agreement because of Seller's material default
hereunder, Buyer shall be responsible for the payment of any costs or expenses incurred by Seller
in connection with the terms set forth in this Section 17.17.
20
EWBC: PEDCOR-PSA
17.18 Limitation on Liability. In no event shall any member, partner, affiliate,
officer, director, agent or employee of Seller or any of Seller's affiliates be or be held liable or
responsible in any way for the obligations or liabilities of Seller under this Agreement_
17.19 No Recordation. Neither this Agreement nor any memorandum thereof
shall be recorded in the records of the County without Seller's prior written consent, which Seller
may withhold in its sole and absolute discretion.
17.20 Merged With Deed. Unless expressly set forth herein, the terms and
provisions of this Agreement shall not survive the Closing of this transaction and such terms and
provisions shall be deemed merged into the Deed and extinguished on the date of Closing.
17.21 Severability. In the event any term or provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall
be given its nearest legal meaning or he construed as deleted as such authority determines, and the
remainder of this Agreement shall be construed to be in full force and effect.
18. Damage or Destruction, Condemnation, Insurance,
18.1 Condemnation. If at any time prior to the Closing Date any portion of the
Property is condemned or taken by eminent domain proceedings by any public authority, then at
Buyer's option, to be exercised within three (3) Business Days after receipt of Seller's written
notice to Buyer of such taking, this Agreement shall terminate, and the Deposit shall be promptly
returned to Buyer, and except as expressly set forth herein, neither party shall have any further
liability or obligation to the other hereunder. If Buyer elects or is deemed to have elected not to
terminate this Agreement, the parties shall proceed to the Closing Date without a reduction in the
Purchase Price and, upon the Closing, all condemnation proceeds paid or payable to Seller (other
than losses pertaining to periods prior to the Closing) shall belong to Buyer and shall be paid over
and assigned to Buyer. Seller shall have no obligation to make any repairs to the Property in the
event of a condemnation. This Section shall survive Closing.
18.2 Damage and Destruction. If at any time prior to the Closing Date a portion
of the Property is destroyed or damaged as a result of fire or any other casualty whatsoever, then at
Buyer's option, to be exercised three (3) Business Days after receipt of Seller's written notice to
Buyer of such destruction or damage, this Agreement shall terminate, the Deposit shall be returned
to Buyer, and except as expressly set forth herein, neither party shall have any further liability or
obligation to the other hereunder. If Buyer does not timely notify Seller in writing of its election to.
terminate this Agreement, Buyer shall be deemed to have elected not to terminate this Agreement.
if Buyer elects or is deemed to have elected not to terminate this Agreement, the parties shall
proceed to the Closing Date without reduction in the Purchase Priee and, upon the Closing, all
property insurance proceeds paid or payable to Seller as a result of such casualty shall belong to
Buyer and shall be paid over and assigned to Buyer. Seller shall have no obligation to make any
repairs to the Property in the event of a damage or destruction. This Section shall survive Closing.
19. Financing Period. Buyer hereby represents to Seller that, prior to the execution of
this Agreement, Buyer has requested certain financing from its lender (the "Lender") in an
amount necessary to complete this transaction and subject to terms acceptable to Buyer in its sole
21
EWBC - PEDCOR-PSA
and absolute discretion (the "Financing") and Buyer shall use all reasonable efforts to
expeditiously secure such Financing. Buyer shall have a period of Thirty (30) days following the
Effective Date in which to notify Seller either: (i) that Buyer has secured such Financing from
Lender and that Purchaser will continue with the Closing (the "Financing Confirmation"); or (ii)
that Buyer was unable to secure the Financing from Lender, whereby Seller shall have the right
to immediately terminate this Agreement and Escrow shall be cancelled and Escrow Holder shall
return the Deposit to Buyer, after first deducting the Escrow Cancellation Charges, if any.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first mitten
above.
SELLER:
45 EAST 12 rH STREET, LLC
A CALIFORNIA LIMITED LIABILITY
COMPANY
By:
Name: Michelle Ly
Title:
FVP, REO Manager
BUYER:
Pedcor Commercial Development, LLC
By:
Name: Andrew Held
Title: President
22
F.WBC.- PEDCOR-PSA
Exhibits:
"A" - Description of the Real Property
"B" - Assignment and Bill of Sale
"C" - Deed
"D" - Nonforeign Affidavit
"E" - Hazardous Substances
"F" Property Documents
23
EWBC.- PEDCOR-PSA
EXHIBIT A
DESCRIPTION OF THE REAL PROPERTY
All that certain real property situated in the County of San Diego, State of
California, described as follows:
A Condominium comprised of:
Parcel 1:
An undivided 60/61st fee simple interest as a tenant in common in and to Lot 1, of
Map No. 15807, in the City of National City, County of San Diego, State of California, filed
in the Office of the Recorder of San Diego County, on December 30, 2010.
Excepting therefrom, the Association Property and Units No(s). 101 through 104,
inclusive; 201 through 219, inclusive; 301 through 319, inclusive; 401 through 419,
inclusive, of said Lot 1, of Map No. 15807, as shown on that certain Condominium Plan,
recorded on April 19, 2011, as Instrument No. 2011-0202639 of Official Records
("Condominium Plan").
Also excepting therefrom, for the benefit of Grantor, its successors in interest, and
others, together with the right to grant the same to others, such Exclusive Use Association
Property easements as defined, described and shown in said Condominium Plan and the
Declaration of Establishment of Conditions, Covenants and Restrictions for Centro,
recorded on April 19, 2011, as Instrument No. 2011-0202640 of Official Records
("Declaration"), including any amendments thereto.
Also except therefrom any and all oil, gas, minerals, and other hydrocarbon
substances lying below a depth of 500 feet, as more particularly set forth and provided in
that certain document recorded October 26, 2005 as Instrument No. 2005-0930606 of
Official Records.
Parcel 2:
Unit No(s). 101 through 104, inclusive; 201 through 219, inclusive; 301 through 319,
inclusive; 402 through 419, inclusive, of said Lot 1 of Map No. 15807, as shown and
described in said Condominium Plan.
Parcel 3:
Those certain Exclusive Use Association Property balcony and/or patio shown and
designated in the above -referenced Condominium Plan Located adjacent to the Unit,
consisting of exclusive easements for use thereof appurtenant to Parcels 1 and 2 above, as
defined and described in the Declaration and the Condominium Plan.
A-1
EWBC.PSA. I -Highlands
Parcel 4:
Those certain Exclusive Use Association Property parking spaces shown and
designated in the above -referenced Condominium Plan with the designation "Proforma"
consisting of exclusive easements for use thereof appurtenant to Parcels 1 and 2 above, as
defined and described in the Declaration and the Condominium Plan.
Parcel 5:
Nonexclusive easements for access, ingress, egress, use, enjoyment, drainage,
encroachment, support, maintenance, repairs, and for the other purposes, all as described
in the Declaration.
Assessor's Parcel Number: 556-554-16-00
A-2
E WBC. PS A. 1-Highlands
EXHIBIT B
ASSIGNMENT AND BILL OF SALE
Reference is hereby made to (a) that certain real property located in the City of
, County of , State of and described
in more detail on Exhibit "A" of that certain Purchase and Sale Agreement and Joint Escrow
Instructions between Seller and Buyer (as such parties are defined below) dated as of
, 20 (the "Purchase Agreement"), (b) the
improvements located thereon and (c) the rights, privileges and entitlements incident thereto (the
"Property").
For good and valuable consideration, receipt of which is hereby acknowledged and
subject to Section 3 in the Agreement, the undersigned, EAST WEST BANK ("Seller"), does
hereby, transfer, assign, and deliver to ("Buyer"),
all of Seller's right, title and interest, if any, in the following items (collectively referred to as the
"Assigned Property") relating to the Real Property:
(ii) all assignable development rights, privileges, entitlements, governmental permits,
licenses, certificates and other governmental approvals, if any, that pertain to the Real Property,
including all assignable tradenames, trademarks, servicemarts and logos, if any, with respect to
the Real Property (collectively, the "Intangible Rights");
(iv) the Personal Property (as defined in the Purchase Agreement);
(v) the Property Documents (as defined in the Purchase Agreement); and
(vi) all easements, rights of way and other rights appurtenant to the Real Property.
SELLER:
EWBC.PSA IA ale 2011
45 EAST 12.114 STREET, LLC
A CALIFORNIA LIMITED LIABILITY
COMPANY
By:
Name:
Title:
B-1
EXHIBIT C
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
(Space Above For Recorder's Use)
/IfP7ope7ry Tom -alb? Cakfoinied
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant
to Section 11932 of the Revenue and
Taxation Code, as amended
City of
County of
GRANT DEED
FOR VALUABLE CONSIDERATION, EAST WEST BANK ("Grantor") hereby
grants to , that certain real property ("Property") in the City of County of
, State of , which is more particularly described on Exhibit
"A" attached hereto and incorporated herein by this reference.
This conveyance is made subject to (i) all covenants, conditions, restrictions, rights of
way, easements, reservations, and other matters of record; (ii) all laws, rules and regulations
governing the use and development of the Property; and (iii) all non -delinquent real property
taxes and general and special assessments.
EWBC.PSA Template 20t 1
C-1
IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed as of the
day of ,20
GRANTOR:
45 EAST 12TH STREET, LLC
A CALIFORNIA LIMITED LIABILITY
COMPANY
By:
Name:
Title:
State of California )
County of )
On , before me, , Notary Public, personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
C-2
EWBC.PSA Tempiate 2011
EXHIBIT "A"
DESCRIPTION OF THE REAL PROPERTY
C-3
EWIIC.PSA template 2011
Document No.
Recorded
STATEMENT OF TAX DUE AND REQUEST THAT TAX
.DECLARATION NOT BF, MADE A PART OF THE
PERMANENT RECORD IN THE OFFICE OF THE COUNTY
RECORDER (PURSUANT TO SECTION 1.1932 OF THE
CALIFORNIA REVENUE AND TAXATION CODE)
TO: Recorder
County of
Request is made in accordance with the provisions of the Documentary Transfer Tax Act
that the amount of the tax due not be shown on the original document which names:
Grantor:
Grantee:
45 EAST 121" STREET, LLC
A CALIFORNIA LIMITED LIABILITY
COMPANY
The property described in the accompanying document is located in
County of
The amount of tax due on the accompanying document is $
Computed on full value of property conveyed.
Or computed on full value, less liens and encumbrances remaining at the
time of sale.
(Signature of Declarant or Agent)
(Firm Name)
Note: After the permanent record is made, this form will be affixed to the conveying document
and returned with it.
C-4
EWBC.PSA Template 2011
EXHIBIT D
NON -FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended, provides that a
transferee of an U.S. real property interest must withhold tax if the transferor is a foreign person.
To inform the transferee that withholding of tax is not required upon the disposition of an tJ.S.
real property interest by EAST WEST BANK ("Transferor"), the undersigned certifies the
following on behalf of Transferor:
I. Transferor is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
and
Transferor is not a disregarded entity as defined in section 1.1445-2(b)(2)(iii);
3. Transferor's U.S. employer identification number is
4. Transferor's office address is
Transferor understands that this certification may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be punished by fine,
imprisonment, or both.
D-1
£W BC.I'SA Template 2011
Under penalties of perjury, I declare that I have examined this certification and to the best
of my knowledge and belief it is true, correct, and complete. I further declare that I have
authority to sign this document on behalf of Transferor.
Dated: , 20 SELLER:
D-2
EWBC.PSA Template 2011
45 EAST l210 STREET, LLC
A CALIFORNIA LIMITED LIABILITY
COMPANY
By:
Name:
Its:
EXHIBIT E
HAZARDOUS SUBSTANCES
The term "Hazardous Substance" as used in this Agreement means any hazardous
substance, hazardous waste, or toxic substance as defined in any federal, state or local statute,
ordinance, rule, regulation or order applicable to the Property and shall include, without
limitation, any substance, chemical, compound, waste, material or mixture which is (or which
contains or is the decomposition product of any substance, chemical compound, or mixture
which is):
(1) a "Hazardous Substance", "Hazardous Material", "Hazardous Waste", or "Toxic
Substance" under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. §§ 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
§§ 1801, et seq., or the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq., the
Federal Water Pollution Control Act, the Clean Air Act, the Toxin Substances Control Act, the
Refuse Act, the Carpenter -Presley -"Tanner Hazardous Substance Account Act, the Hazardous
Waste Control Law, or under any regulations adopted and publications promulgated pursuant to
such laws;
(2) an "Extremely Hazardous Waste", a "Hazardous Waste", or a "Restricted
Hazardous Waste", under §§ 25115, 25117 or 25122.7 of the California Health and Safety Code,
or is listed or identified pursuant to §§ 25140 or 44321 of the California Health and Safety Code;
(3) a "Designated Waste" under California Water Code § 13173.
(4) a "Hazardous Material', "Hazardous Substance", "Hazardous Waste", "Toxic Air
Contaminant", or "Medical Waste" under §§ 25281, 25316, 25501, 25501.1, 25023.2 or 39655
of the California Health and Safety Code;
(5) "Oil" or a "Hazardous Substance" listed or identified pursuant to § 311 of the
Federal Water Pollution Control Act, 33 U-S.C. § 1321, as well as any other hydrocarbonie
substance, by-product or waste;
(6) listed or defined as a "Hazardous Waste", "Extremely Hazardous Waste", or an
"Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the California Code of
Regulations;
(7) listed by the State of California as a chemical known by the State to cause cancer
or reproductive toxicity pursuant to § 25249.8(a) of the California Health and Safety Code;
(8) a material which due to its characteristics or interaction with one or more other
substances, chemical compounds, or mixtures, damages or threatens to damage, human or animal
health, public or worker safety, or the environment, or is required by any law or public agency to
be remediated, including remediation which such law or public agency requires in order for the
Property to be put to any lawful purpose;
E-1
EWL3C.PSA Template 20l I
(9) any material the presence of which would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank;
(10) pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act,
7 U.S.C. §§ 136 et seq.;
(11) radon, asbestos, PCBs, and other substances regulated under the Toxic. Substances
Control Act, 15 U.S.C. §§ 2601 et seq. or other applicable laws;
(12) any radioactive material including, without limitation, any "source material",
"special nuclear material", "by-product material", "low-level wastes", "high-level radioactive
waste", "spent nuclear fuel" or "transuranic waste", "special waste" and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic Energy Act,
42 U.S.C. §§ 2011 et se_c ., the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101 et seq., or pursuant
to the California Radiation Control Law, California Health and Safety Code §§ 25800 et seq.;
(13) industrial process and pollution control wastes, whether or not "hazardous" within
the meaning of the Resource Conservation and Recovery Act, 42 U,S.C. §§ 6901 et seq. or the
Hazardous Waste Control Act, California Health and Safety Code §§ 25100 et seq.;
(14) "waste" under Section 13050 of the California Water Code, or in regulations
adopted and publications promulgated pursuant to such laws;
(15) regulated under the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.,
or the California Occupational Safety and Health Act, California Labor Code §§ 6300 et sec.;
and/or
(16) regulated under the Clean Air Act, 42 U.S.C. §§ 7401 et seq. or pursuant to
Division 26 of the California Health and Safety Code.
E-2
EWDC.PSA Template 2011
EXHIBIT F
PROPERTY DOCUMENTS
CA -San Diego -Tract Map-15807.pdf ! 9/15/2010
2
CC&R Centro recording.pdf
4/19/2011
3
Centro - Memos Re Centro Plan Change - Permits - Request - EWB - 8-19-11.pdf
8/19/2011
4
Centro — Bulletin 10 Plans (2 Files)
Link Provided
5
Centro — 2009 Plan Set (27 Files)
Link Provided
6
Centro - Partner Engineering & Science Peg, Rep. Inspection - 2-22-11.pdf
2/22/2011
7
8
Centro Condos - Elevator - Non -Compliance - Issues.pdf
9/28/2011
Centro Condos - Fee Estimate - Luis Sainz (National City) 9-15-11.pdf
9/15/2011
9
Centro Condos - Title 24 Memo - Disclosure.pdf
N/A
10
Centro Construction Buyout Analysis - 1-21-11.pdf 1/21/2011
11
Centro Notice recording.pdf
4/29/2011
12
Condo Plan Centro recording.pdf
4/19/2011
13
DDA Agreement Signature Page.pdf
8/30/2005
14
DOA Agreement.pdf
8/30/2005
15
DDA Amendment No. 1.pdf
1
10/25/2005
16
DDA Amendment No. 2.pdf
10/17/2006
17
DDA Amendment No. 3.pdf
3/6/2007
18
DDA Amendment No. 4.pdf
6/3/2008
19
DDA Amendment No. 5 Signed.pdf
12/16/2010
20
DRE White Report - Centro Condos.pdf
4/26/2011
21
Email Hotel Permit Cklist 2010-06-10.pdf
6/10/2010
22
Grant Deed on Unit 401 With Revised Legal - 6-16-11.pdf
6/16/2011
23
Lawyers Title Package 12919248.htm (V4)
9/8/2011
24
Memo - BOKA Powell - Plan Change Review - 8-23-11.pdf
8/23/2011
25
Memo From M. Babaki, City of National City, Re Permits - 7-28-11.pdf
7/28/2011
26
Memos - M. Babaki - City of National City - 7-7-11.pdf
7/7/2011
27
Project Summary - Data Sheet - BOKA Powell - 12-10-10.pdf
12/10/2010
28
Property Tax Bill - APN 556-554-16-00.pdf
7/8/2011
E.-3
CWBC.PSA Template 2011
D-MAx Engineering, Inc.
Consultants in Water & Environmental Sciences
February 24, 2012
Project Number: 201207W
Ms. Barby Tipton
Engineering Division
Development Services Department
City of National City
1243 National City Boulevard
National City, CA 91950
----
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®®
— MI.w* 1.
ryas �' __
Subject: First Review of the Storm Water Management Plan (SWMP) for the Park
Lofts Project
Dear Ms. Tipton:
Per your request, D-MAX Engineering, Inc. (D-MAx) has performed the first review for the
SWMP for Park Lofts at the northeast corner of East 16th Street and National City Boulevard
within the City of National City (City). The SWMP, dated February 2, 2012, was prepared by
Landmark Consulting and received by D-MAx for review on February 13, 2012. The project
summary and our review comments in Tight of the City of National City's SUSMP requirements
are presented below.
Project Applicability Information
• The proposed project consists of work/loft condominiums on 1.93 acres of existing
commercial property. The City's NPDES Project Applicability Checklist is not provided,
but because at least 5,000 square feet of impervious surface will be replaced.. the project
is considered significant redevelopment. The project involves construction of more than
10 residential units and more than 1 acre of commercial development and is thus subject
to SUSMP requirements.
• While not indicated in the SWMP, the project is also within an Environmentally Sensitive
Area and discharges directly to Paradise Creek.
Watershed, Pollutants of Concern, and Other Site Information
• The SWMP indicates that the project area is within hydrologic subarea (HSA) 908.32
and drains to Paradise Creek. One corner of the project will actually be located directly
over the creek as it passes southwest under East 16th Street.
• The SWMP provides a list of the anticipated and potential general pollutant categories
based on the City's SUSMP Manual.
Hydromodification Management
• Based on the Hydrology Study provided with the SWMP, this proposed project would not
increase impervious area nor would it increase runoff flows exiting the property. This is
the second exemption from Regional Hydromodification Management Plan (HMP)
requirements available on page 13 of the City's SUSMP Manual. However, page 10 of
the SWMP selects a different exemption (direct discharge to stabilized conveyance
system) that is not supported by channel capacity analysis.
7220 Trade Street ■ Suite 119 ■ San Diego, C:1 92121 ■ (858) 586-6600 ■ Fa (S58) 58645644
City of National City
Park Lofts (15` review)
February 24, 2012
Page 2
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Low Impact Development (LID) and Treatment Control BMPs
• Pages 14 to 15 and 28 to 32 of the SWMP discuss permanent storm water BMPs,
including LID Integrated Management Practices (IMPs). The project does not propose
any LID measures, instead proposing drainage insert BMPs.
o Page 15 of the SWMP states that no LID is proposed for this project. The
explanation provided, that the existing impervious area (100 percent) will not
increase as a result of redevelopment, is not an adequate justification for not
implementing required LID measures. Landscaping and other pervious areas are
possible even when not located on ground level (e.g., raised bioretention planter
boxes with underdrains, green roofs).
o The SWMP does not provide the soil type or depth to groundwater at the project
site, which would help evaluate the feasibility and suitability of infiltration into
native soil.
o The SWMP proposes approximately 15 FloGard Plus drainage insert BMPs and
incorrectly categorizes them as media filters. Drainage inserts are in the trash
rack category that is not an acceptable BMP type per the City's SUSMP Manual,
except as pretreatment for more effective BMPs whose function may be impaired
by debris accumulation.
o The SWMP does not consider the most effective LID BMPs that may be feasible,
such as bioretention areas, bioretention planters, and infiltration trenches.
Source Control Best Management Practices (BMPs)
• The SWMP provides the source control appendix from the County's SUSMP but does
not indicate that the project will implement all applicable BMPs. Based on the City's
SUSMP Manual (Appendix C), this project should at least address the required BMPs for
(A) On -site storm drain inlets, (B) Interior floor drains and elevator shaft sump pumps,
(C) Interior parking garages, (D1) Need for future indoor and structural pest control, (D2)
Landscape/outdoor pesticide use, (G) Refuse areas, (N) Fire sprinkler test water, (0)
Miscellaneous drain or wash water, (P) Plazas, sidewalks, and parking lots.
Site Map and Overall Submittal
• The project SWMP has been generated using the County of San Diego template, which
in some cases does not address information specific to the City of National City.
Examples of template information that is not applicable to the City include: the
designation of environmentally sensitive areas (Question 8 in Table 2), the determination
of need for Advanced Treatment BMPs (Table 4), and the requirement for a project to
reduce impervious area and outflows as opposed to not increasing impervious area and
outflows for HMP exemption (Question 1, Table 5).
• The site has not been divided into drainage management areas (DMAs) as defined and
required in the City's SUSMP Manual. Therefore DMAs are also not categorized,
described, tabulated, or shown on the map.
• All appropriate source control BMPs (e.g., covered refuse areas, parking garage drains
to sewer, etc.) have not been shown on the map.
City of National City
Park Lofts (1sI review)
February 24, 2012
Page 3
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Operation and Maintenance
• Page 35 of the SWMP specifies the party responsible for long-term maintenance. While
operation and maintenance information is included as Section D of the SWMP, this
information will need to be updated if proposed BMPs are changed.
Conclusions and Recommendations
Based on our technical review in light of the City's SUSMP requirements, the submitted SUSMP
requires revisions and should address the following comments.
1. Revise the SWMP to indicate that the project is located in an Environmentally Sensitive
Area (Paradise Creek).
2. Revise the SWMP to clarify if the project's exemption from HMP requirements will be
based on no increase to impervious area and no increase to runoff flows exiting the
property as a result of development. Otherwise, the current exemption selected will
require support by channel capacity analysis.
3. Provide the soil type and depth to groundwater, and evaluate the feasibility and
suitability of infiltration into native soil at the project site, as directed by the City's
SUSMP Manual.
4. Follow the detailed instructions in Chapter 4 of the City's SUSMP Manual to address the
LID requirements.
5. Divide the entire project area into DMAs as required in Chapter 3 (pages 51 to 52) and
Chapter 4 of the City's SUSMP Manual.
6. Propose one of the most effective BMP types, such as bioretention facilities or infiltration
facilities, or provide detailed justification for the infeasibility of such measures.
7. Show all DMAs and BMPs on a site map, including information about the type, size, and
flow direction of each.
8. Provide tables and/or calculations to demonstrate that all BMPs are sufficiently sized to
treat the runoff from tributary DMAs.
9. Provide diagrams that show design specifications for each proposed BMP. Design
standards are provided in Appendix B of the City's SUSMP Manual.
10. Demonstrate implementation of all applicable source control BMPs from Appendix C of
the City's SUSMP Manual. Show all source control BMPs on the site map.
Should you have any questions regarding the above comments, please call me at (858) 586-
6600, extension 22.
Sincerely,
D-Max Engineering, Inc.
Arsalan Dadkhah, Ph.D., P.E.
Principal
OFFICE OF THE CITY CLERK
1243 National City Blvd.
National City, California 91950
Michael R. Dalla, CMC - City Clerk
619-336-4228 phone / 619-336-4229 fax
CENTRO INDY, LLC
Centro Project Art Project
Tree Lighting Along "A" Avenue
Denise Davis (Redevelopment) Forwarded
Copy of Agreement to Centro Indy, LLC