HomeMy WebLinkAbout2016 CON SA Centro Indy LLC - Condoninium Unit 45REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
by and between
SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT AGENCY, a public entity duly
created and validly existing under the laws of the State of California and successor -in -
interest to the former Community Development Commission as the National City
Redevelopment Agency
and
CENTRO INDY, LLC, an Indiana limited liability company
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REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
45 E. 12th Street; #401
National City, California
(APN # 556-554-22-43)
This REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS ("Agreement") is dated as of !Y1044 t 012v b , 2016, and is
entered into by and between the SUCCESSOR AGENCY TO THE COMMUNITY
DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT
AGENCY, a public entity duly created and validly existing under the laws of the State of
California and successor -in -interest to the former Community Development Commission as
the National City Redevelopment Agency ("Successor Agency" or "Seller"), and CENTRO
INDY, LLC, an Indiana limited liability company ("Buyer"). Seller and Buyer enter into
this Agreement with reference to the following recitals of fact (each, a "Recital"):
RECITALS
A. The Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property
generally consisting of an approximate 901 square foot condominium unit and two (2)
parking spaces located at 45 E. 12t1i Street; #401 (Assessor's Parcel No. 556-554-22-43)
within the City of National City, County of San Diego, State of California, as specifically
described in Section 1 of this Agreement as the "Property"; and
B. Pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and
pursuant to California Health and Safety Code Section 34173, Seller became the successor
agency and successor -in -interest to the Redevelopment Agency, confirmed by Resolution
No. 2012-15 adopted on January 10, 2012, by the City Council of the City of National City
("City"); and
C. In accordance with California Health and Safety Code Section 34191.5, the Property
was listed on Seller's Long Range Property Management Plan ("LRPMP"), which provides that the
Property is to be sold at fair market value, and the LRPMP has been approved by the Oversight
Board of the Successor Agency to the Community Development Commission as the National City
Redevelopment Agency ("Oversight Board") and the California Department of Finance; and
D. Buyer has made an offer to purchase the Property from Seller at the Property's
current "as is" fair market value, and Seller desires to sell the Property to Buyer pursuant to the
terms and conditions of this Agreement.
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AGREEMENT
NOW, THEREFORE, IN CONSIDERATION bF 14HE PROMISES AND COVENANTS
OF SELLER AND BUYER SET FORTH IN THIS AGREEMENT AND OTHER GOOD AND
VALUABLE CONSIDERATION, SELLER AND BUYER AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 Definitions. The following words, terms and phrases are used in this Agreement
with the following meanings, unless the particular context or usage of a word, term or phrase
requires another interpretation:
1.1.1 Affiliate. (1) any Person directly or indirectly controlling, controlled by
or under common control with another Person; (2) any Person owning or controlling ten percent
(10%) or more of the outstanding voting securities of such other Person; or (3) if that other
Person is an officer, director, member or partner, any company for which such Person acts in
any such capacity. The term "control" as used in the immediately preceding sentence, means the
power to direct the management or the power to control election of the board of directors. It
shall be a presumption that control with respect to a corporation or limited liability company is
the right to exercise or control, directly or indirectly, more than, fifty percent (50%) of the voting
rights attributable to the controlled corporation or limited liability company, and, with respect to
any individual, partnership, trust, other entity or association, control is the possession, indirectly
or directly, of the power to direct or cause the direction of the management or policies of the
controlled entity. It shall also be a presumption that the manager of a limited liability company
controls such limited liability company.
1.1.2 Agreement. This Real Property Purchase and Sale Agreement and Joint
Escrow Instructions by and between Seller and Buyer, including all of the attached Exhibits.
1.1.3 Approval. Any approval, consent, certificate, ruling, authorization, or
amendment to any of the foregoing, as shall be necessary or appropriate under any Law to complete the
purchase and sale of the Property.
1.1.4 Bankruptcy Law. Title 11 of the United State Code or any other or successor
State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee,
bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters.
1.1.5 Bankruptcy Proceeding. Any proceeding, whether voluntary or involuntary,
under any Bankruptcy Law.
1.1.6 Business Day. Any weekday on which the Seller is open to conduct
regular governmental functions.
1.1.7 Buyer. Centro Indy, LLC, an Indiana limited liability company, and any
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assignee of or successor to the rights, powers, or responsibilities of Buyer under this Agreement.
1.1.8 Buyer Title Policy. A standard CLTA owners' policy of title insurance
issued by the Title Company, with coverage in the amount of the Purchase Price, showing title to the
Property vested in Buyer, subject to Permitted Exceptions.
1.1.9 CEQA. The California Environmental Quality Act, Public Resources Code
Section 21000, et seq. and implementing regulations contained in Title 14, Chapter 3, Section 15000, et seq. of
the California Code of Regulations.
1.1.10 CEQA Documents. Any exemption determination, any Negative Declaration
(mitigated or otherwise) or any Environmental Impact Report (including any addendum or amendment to, or
subsequent or supplemental Environmental Impact Report) required or permitted by any Government, pursuant
to CEQA, to issue any discretionary Approval required to approve this Agreement.
1.1.11 City. The City of National City, a California municipal corporation.
1.1.12 Claim. Any claim, loss, cost, damage, expense, liability, lien, action,
cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge,
award, assessment, fine or penalty, of any kind (including consultant and expert fees and
expenses and investigation costs of whatever kind or nature and, if an Indemnitor improperly
fails to provide a defense for an Indemnitee, then Legal Costs of the Indemnitee) and any
judgment.
1.1.13 Close of Escrow. The first date on which the Escrow Agent has filed
the Grant Deed with the County for recording in the official records of the County.
1.1.14 Control. Possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether by ownership or Equity
Interests, by contract or otherwise.
1.1.15 County. The County of San Diego, California.
1.1.16 Default. An Escrow Default, a Monetary Default, or a Non -Monetary
1.1.17 Default Interest. Interest at an annual rate equal to the lesser of (a) eight
percent (8%) per annum; or (b) the Usury Limit.
1.1.18 Deposit. Three Thousand Two`, Hundred Fifty and No/100 DOLLARS
Default.
($3,250).
1.1.19 Effective Date. Defined in Section 2 of this Agreement.
1.1.20 Environmental Claim. Any and all claims, demands, damages, losses,
liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs,
disbursements or expenses, including Legal Costs and fees and costs of environmental consultants and other
experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever,
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directly or indirectly, relating to or arising from any actual or alleged violation of any Environmental Law
or Hazardous Substance Discharge.
1.1.22 Environmental Laws. All Federal, State, local (including City) laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, or requirements of any Government authority, now
in effect or enacted after the Effective Date of this Agreement, regulating, relating to, or imposing liability
or standards of conduct concerning any Hazardous Substance, the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use or pertaining to
occupational health or industrial hygiene or occupational or environmental conditions on, under or about
the Property, as now or may at any later time be in effect, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA" )[42 U.S.C. § 9601 et seq.];
the Resource Conservation and Recovery Act of ,1976 (`.`RCRA") [42 U.S.C. § 6901 et seq.];
the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33
U.S.C. § 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 U.S.C. § 2601 et seq.];
the Hazardous Materials Transportation Act ("HMTA") [49 U.S.C. § 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 U.S.C. § 6901 et seq.]; the Clean Air Act [42 U.S.C. § 7401 et seq.];
the Safe Drinking Water Act [42 U.S.C. § 300f et seq.]; the Solid Waste Disposal Act [42 U.S.C.
§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C. § 101 et seq.]; the
Emergency Planning and Community Right to Know Act [42 U.S.C. § 11001 et seq.]; the
Occupational Safety and Health Act [29 U.S.C. §§ 655 and 657]; the California Underground
Storage of Hazardous Substances Act [California Health and Safety Code § 25300 et seq.]; the
California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code
§ 24249.5 et seq.]; or the Porter -Cologne Water Quality Act [California Water Code § 13000 et
seq.]; together with any regulations promulgated under the authorities referenced in this Section.
1.1.23 Equity Interest. All or any part of any direct equity or ownership
interest(s) (whether stock, partnership interest, beneficial interest in a trust, membership interest in
a limited liability company, or other interest of an ownership or equity nature) in any entity, at any
tier of ownership, that directly owns or holds any ownership or equity interest in a Person.
1.1.24 Escrow. An escrow, as defined in California Civil Code Section 1057
and California Financial Code Section 17003(a), that is conducted by the Escrow Agent with
respect to the sale of the Property from Seller to Buyer pursuant to this Agreement.
1.1.25 Escrow Agent. Carla Burchard, Stewart Title of California, Inc., or such
other Person mutually agreed upon in writing by both Seller and Buyer.
1.1.26 Escrow Closing Date. The earlier of: (a) on or before the fifth (5th)
Business Day following the Escrow Agent's receipt of written confirmation from both Seller
and Buyer of the satisfaction or waiver of all conditions precedent to the Close of Escrow; (b)
the date that is sixty (60) calendar days following the Escrow Opening Date; or (c) another date
mutually agreed upon in writing between the Parties for the Close of Escrow.
1.1.27 Escrow Closing Statement. A statement prepared by the Escrow Agent
indicating, among other things, the Escrow Agent's estimate of all funds to be deposited or
received by Seller or Buyer, respectively, and all charges to be paid by Seller or Buyer,
respectively, through the Escrow.
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1.1.28 Escrow Default. The unexcused failure of a Party to submit any
document or funds to the Escrow Agent as reasonably necessary to close the Escrow, pursuant to
the terms and conditions of this Agreement.
1.1.29 Escrow Opening Date. The first date on which a copy of this
Agreement, signed by both Seller and Buyer, is deposited with the Escrow Agent, as provided in
Section 3.1 of this Agreement.
1.1.30 Event of Default. The occurrence of any one or more of the following:
(a) Monetary Default. A Monetary Default that continues for fifteen
(15) calendar days after Notice to the Party in Default, specifying in reasonable detail the amount
of money not paid and the nature and calculation of each such amount or the bond, surety, or
insurance not provided;
(b) Escrow Closing Default. An Escrow Default that continues for seven
(7) calendar days after Notice to the Party in Default, specifying in reasonable detail the
document or funds not submitted to the Escrow Agent;
(c) Bankruptcy or Insolvency. Buyer admits in writing that Buyer is unable
to pay Buyer's debts as they become due or Buyer becomes subject to any Bankruptcy Proceeding, or a
custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure
is made with respect to, substantially all of Buyer's assets or Buyer's interest in this Agreement or the
Property;
(d) Transfer. The occurrence of a Transfer, whether voluntarily or
involuntarily or by operation of Law, in violation of the terms or conditions or this Agreement;
(e) Non -Monetary Default. Any Non -Monetary Default, other than
those specifically addressed in Subsections (c) or (d) above, that is not cured within fifteen (15)
calendar days after Notice to the Party in Default describing the Non -Monetary Default in
reasonable detail. In the case of such a Non -Monetary Default that cannot with reasonable
diligence be cured within fifteen (15) calendar days after the effective date of such Notice, an Event
of Default shall occur, if the Party in Default does not do all of the following: (a) within fifteen
(15) calendar days after Notice of such Non -Monetary Default, advise the other Party of the
intention of the Party in Default to take all reasonable steps to cure such Non -Monetary Default;
(b) duly commence such cure within such fifteen (15) calendar day period; and (c) diligently
prosecute such cure to completion within a reasonable time under the circumstances.
1.1.31 Executive Director. The Executive Director of Seller or his or her designee or
successor in function.
1.1.32 Federal. The federal government of the United States of America.
1.1.33 FIRPTA Affidavit. A certification that Seller is not a "foreign person"
within the meaning of such term under Section 1445 of the United States Internal Revenue Code.
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1.1.34 Form 593. A California Franchise Tax Board Form 593-C.
1.1.35 Government. Any and all courts, boards, agencies, commissions,
offices, or authorities of any nature whatsoever of any governmental unit (Federal, State, County,
district, municipal, City or otherwise) whether now or later in existence. It is acknowledged
that Seller and the City are forms of Government.
1.1.36 Grant Deed. A grant deed conveying Seller's interest in the Property
from Seller to Buyer, at the Close of Escrow, substantially in the form of Exhibit "B" attached to
this Agreement and incorporated herein by this reference.
1.1.37 Hazardous Substance. Any flammable substance, explosive,
radioactive material, asbestos, asbestos -containing material, polychlorinated biphenyl, chemical
known to cause cancer or reproductive toxicity, pollutant, contaminant, hazardous waste,
medical wastes, toxic substance or related material, petroleum, petroleum product and any
"hazardous" or "toxic" material, substance or waste that is defined by those or similar terms or is
regulated as such under any Law, including any material, substance or waste that is: (a) defined
as a "hazardous substance" under Section 311 of the Water Pollution Control Act (33 U.S.C. §
1317), as amended; (b) designated as "hazardous substances" pursuant to 33 U.S.C. § 1321; (c)
defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. § 6901 et seq., as amended;. (d) defined "as a "hazardous substance" or
"hazardous waste" under Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act
of 1986, 42 U.S.C. § 9601 et seq., or any so-called "superfund" or "superlien" law; (e) defined
as a "pollutant" or "contaminant" under 42 U.S.C. § 9601(33); (f) defined as "hazardous waste"
under 40 C.F.R. Part 260; (g) defined as a "hazardous chemical" under 29 C.F.R. Part 1910; (h)
any matter within the definition of "hazardous substance" set forth in 15 U.S.C. § 1262; (i) any
matter, waste or substance regulated under the Toxic Substances Control Act ("TSCA") [15
U.S.C. Sections 2601 et seq.]; (j) any matter, waste or substance regulated under the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 1801 et seq.; (k) those substances listed in the
United States Department of Transportation (DOT) Table [49 C.F.R. 172.101]; (1) any matter,
waste or substances designated by the EPA, or any successor authority, as a hazardous substance
[40 C.F.R. Part 302]; (m) defined as "hazardous waste" in Section 25117 of the California Health
and Safety Code; (n) defined as a "hazardous substance" in Section 25316 of the California Health
and Safety Code; (o) subject to any other Law regulating, relating to or imposing obligations,
liability or standards of conduct concerning protection of human health, plant life, animal life,
natural resources, property or the enjoyment of life or property free from the presence in the
environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (p)
that is or becomes regulated or classified as hazardous or toxic under Law or in the regulations
adopted pursuant to Law.
1.1.38 Hazardous Substance Discharge. Any deposit, discharge, generation,
release or spill of a Hazardous Substance that occurs at, on, under, into or from the Property, or
during transportation of any Hazardous Substance to or from the Property, or that arises at any
time from any construction, installation, use or operation or other activities conducted at, on,
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under or from the Premises, whether or not caused by a Party.
1.1.39 Indemnify. Where this Agreement states that any Indemnitor shall
"indemnify" any Indemnitee from, against, or for a particular Claim, that the Indemnitor shall
indemnify the Indemnitee and protect, defend and hold the Indemnitee harmless from and against
such Claim (alleged or otherwise). "Indemnified" shall have the correlative meaning.
1.1.40 Indemnitee. Any Person entitled to be Indemnified under the terms of
this Agreement.
1.1.41 Indemnitor. A Party that agrees to Indemnify any other Person under
the terms of this Agreement.
1.1.42 Law. Every law, ordinance, requirement, order, proclamation, directive,
rule or regulation of any Government applicable to the Property, in any way, including relating to
any development, construction, use, maintenance, taxation, operation, occupancy of or
environmental conditions affecting the Property or otherwise relating to this Agreement or any
Party's rights, obligations or remedies under this Agreement, or any Transfer of any of the
foregoing, whether in force on the Effective Date or passed, enacted, modified, amended or
imposed at some later time, subject in all cases, however, to any applicable waiver, variance
or exemption.
1.1.43 Legal Costs. In reference to any Person, all reasonable costs and
expenses such Person incurs in any legal proceeding or other matter for which such Person is
entitled to be reimbursed for its Legal Costs, including reasonable attorneys' fees, court costs and
expenses and consultant and expert witness fees and expenses.
1.1.44 Lender. The holder of any Security Instrument and the successors and assigns
of such holder.
1.1.45 LRPMP. The Long Range Property Management Plan prepared by Seller
and approved by the Oversight Board of the Successor Agency to the Community Development
Commission as the National City Redevelopment Agency and the California Department of
Finance, in accordance with California Health and Safety Code Section 34191.5.
1.1.46 Monetary Default. Any failure by either Party to pay or deposit, when
and as this Agreement requires, any amount of money, bond, surety or evidence of any insurance
coverage required to be provided under this Agreement, whether to or with a Party or a Third
Person.
1.1.47 Non -Monetary Default. The occurrence of any of the following, except
to the extent constituting a Monetary Default or an Escrow Default: (a) any failure of a Party to
perform any of such Party's obligations under this Agreement; (b) any failure of a Party to
comply with any material restriction or prohibition in this Agreement; or (c) any other event or
circumstance that, with passage of time or giving of Notice, or both, would constitute a breach of
this Agreement by a Party.
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1.1.48 Notice. Any consent, demand, designation, election, notice, or request
relating to this Agreement, including any Notice of Default. All Notices must be in writing.
1.1.49 Notice of Default. Any Notice claiming or giving Notice of a Default.
1.1.50 Notify. To give a Notice.
1.1.51 Oversight Board. The Oversight Board of the Successor Agency to the
Community Development Commission as the National City Redevelopment Agency established
pursuant to California Health and Safety Code Section 34179(h).
1.1.52 Parties. Collectively, Seller and Buyer.
1.1.53 Party. Individually, either Seller or Buyer, as applicable.
1.1.54 Permitted Exception. All of the following: (a) all items shown in the
Preliminary Report as exceptions to coverage under the proposed Buyer Title Policy; (b) any lien for
non -delinquent property taxes or assessments; (c) any Laws applicable to the Property; (d) this
Agreement; (e) any existing improvements on the Property; (f) any Approval; (g) any other
document or encumbrance expressly required or allowed to be recorded against the Property
pursuant to the terms of this Agreement; and (h) all covenants, conditions, restrictions,
reservations, rights, rights of way, easements, encumbrances, liens and other matters of record
or that would be disclosed by an accurate inspection or survey of the Property.
1.1.55 Person. Any association, corporation, governmental entity or agency,
individual, joint venture, joint-stock company, limited liability company, partnership, trust,
unincorporated organization or other entity of any kind.
1.1.56 Preliminary Report. A preliminary report issued by the Title Company
in contemplation of the issuance of the Buyer Title Policy, accompanied by the best available
copies of all documents listed in the preliminary report as exceptions to coverage under the proposed
Buyer Title Policy.
1.1.57 Property. That certain real property specifically described in Exhibit
"A" attached to this Agreement and incorporated herein by this reference.
1.1.58 Purchase Price. Three Hundred Twenty -Five Thousand Dollars and
No/100 DOLLARS ($325,000), which is the "as -is" fair market value of the fee simple interest
estate of the Property as of January 20, 2016, pursuant to that certain appraisal report conducted
by David Paine of Paine & Associates.
1.1.59 Real Estate Taxes. All general and special real estate taxes (including
taxes on fixtures and equipment, sales taxes, use taxes and the like), supplemental taxes,
possessory interest taxes, special taxes imposed pursuant to a special taxing district, assessments,
municipal water and sewer rents, rates and charges, excises, levies, license and permit fees, fines,
penalties and other governmental charges and any interest or costs with respect thereto, general
and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or nature
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whatsoever regarding the Property that may be assessed, levied, imposed upon, or become due
and payable out of or in respect of, or charged with respect to or become a lien on, the Property.
1.1.60 Seller. The Successor Agency to the Community Development
Commission as the National City Redevelopment Agency, a public entity duly created and validly
existing under the laws of the State of California and successor -in -interest to the former
Community Development Commission as the National City Redevelopment Agency.
1.1.61 Seller Parties. Collectively, the Seller, the Seller's governing body, and the
Seller's elected officials, employees, agents and attorneys.
1.1.62 State. The State of California.':
1.1.63 Third Person. Any Person that is not a Party, an Affiliate of a Party or
an elected official, officer, director, manager, shareholder, member, principal, partner, employee
or agent of a Party.
1.1.64 Title Company. Stewart Title of California, Inc., or such other Person
mutually agreed upon in writing by both Seller and Buyer.
1.1.65 Transfer. Regarding any property, right or obligation, any of the following,
whether by operation of Law or otherwise, whether voluntary or involuntary, and whether direct or indirect:
(a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether
direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable
interest or estate in such property, right or obligation or any part of it (including the grant of any easement,
lien, or other encumbrance); (b) any conversion, exchange, issuance, modification, reallocation, sale, or other
transfer of any Equity Interest(s) in the owner of such property, right or obligation by the holders of such
Equity Interest(s); or (c) any transaction that is in substance equivalent to any of the foregoing. A transaction
affecting Equity Interests, as referred to in clauses (b) or (c) above of this Section, shall be deemed a Transfer
by Buyer, even though Buyer is not technically the transferor. A "Transfer" shall not, however, include any
of the following (provided that the other Party has received Notice of such occurrence) relating to the Property
or any Equity Interest: (i) a mere change in the form of ownership with no material change in beneficial
ownership and constitutes a tax-free transaction under Federal income tax law and the State real estate transfer
tax law; (ii) a conveyance only to member(s) of the immediate family(ies) of the transferor(s) or trusts for
their benefit; or (iii) a conveyance only to a Person that, as of the Effective Date, holds an Equity Interest in
the entity whose Equity Interest is being transferred.
1.1.66 Unavoidable Delay. A delay in either Party performing any obligation
under this Agreement arising from or on account of any cause whatsoever beyond the Party's
reasonable control, including strikes, labor troubles or other union activities, casualty, war, acts
of terrorism, riots, litigation, governmental action or inaction, regional natural disasters or
inability to obtain required material's. Unavoidable Delay shall not include delay caused by a
Party's financial condition or insolvency.
1.1.67 Usury Limit. The highest rate of interest, if any, that Law allows under
the circumstances.
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2. Eli ECTIVE DATE
This Agreement shall become effective on the first date on which all of the following have
occurred ("Effective Date"): (a) Seller has received three (3) counterpart originals of this Agreement
signed by the authorized representative(s) of Buyer; (b) this Agreement has been approved by Seller's
governing body and executed by Seller's Executive Director; (c) this Agreement, including the purchase
and sale of the Property pursuant to this Agreement, has been approved by the Oversight Board; and (d)
this Agreement, including the purchase and sale of the Property pursuant to this Agreement, as
approved by the Oversight Board, has been approved by the California Department of Finance or
the California Department of Finance has failed to request review of such action within the
timeframes set forth in California Health and Safety Code Sections 34179(h) and 34181(f) or the
California Department of Finance has provided in writing its election not to review such action as
contemplated in California Health and Safety Code Section 34191.5(f).
3. PURCHASE AND SALE OF PREMISES
3.1 Escrow. Seller shall sell and convey fee title to the Property to Buyer and Buyer
shall purchase and acquire fee title to the Property from Seller, subject to the Permitted
Exceptions and the terms and conditions of this Agreement. For the purposes of exchanging
funds and documents to complete the sale of the Property from Seller to Buyer and the purchase
of the Property by Buyer from Seller, pursuant to the terms and conditions of this Agreement,
Seller and Buyer agree to open the Escrow with the Escrow Agent. The provisions of Section
4 of this Agreement are, and shall constitute, the joint escrow instructions of the Parties to the
Escrow Agent for conducting the Escrow.
3.2 Consideration. Buyer shall purchase the Property from Seller for the Purchase
Price, subject to the terms and conditions of this Agreement. Buyer shall deposit the Purchase
Price into the Escrow, as follows:
3.2.1 Deposit. Upon the Escrow Opening Date, Buyer shall deposit the
Deposit into the Escrow. The Deposit shall be non-refundable unless this Agreement is
thereafter terminated due to a Seller default, the failure of a Buyer's condition to Close of
Escrow, a termination of this Agreement not due to Buyer's default, or as otherwise expressly
provided in this Agreement. The Deposit shall be held in Escrow until the Close of Escrow
and shall be applied to the Purchase Price.
3.2.2 Remaining Purchase Price. At lease one (1) Business Day before the
Escrow Closing Date, Buyer shall deposit into the Escrow the amount of the Purchase Price
less the amount of the Deposit.
3.3 Buyer's Approval of Title to Property. Buyer acknowledges and agrees that it
has received the Preliminary Report for the Property and has approved the status of title to the
Property.
3.4 "AS -IS" Acquisition. The Close of Escrow shall evidence Buyer's
unconditional and irrevocable acceptance of the Property in the Property's AS IS, WHERE IS,
SUBJECT TO ALL FAULTS CONDITION, AS OF THE CLOSE OF ESCROW, WITHOUT
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WARRANTY as to character, quality, performance, condition, title, physical condition, soil
conditions, the presence or absence of fill, shoring or bluff stability or support, subsurface or
lateral support, zoning, land use restrictions, the availability or location of utilities or services,
the location of any public infrastructure on or off of the Property (active, inactive or
abandoned), the suitability of the Property or the existence or absence of Hazardous Substances
affecting the Property and with full knowledge of the physical condition of the Property, the
nature of Seller's interest in and use of the Property, all laws applicable to the Property and
any and all conditions, covenants, restrictions, encumbrances and all matters of record relating
to the Property. The Close of Escrow shall further constitute Buyer's representation and
warranty to Seller that: (a) Buyer has had ample opportunity to inspect and evaluate the
Property and the feasibility of the uses and activities Buyer is entitled to conduct on the
Property; (b) Buyer is relying entirely on Buyer's experience, expertise and Buyer's own
inspection of the Property in the Property's current state in proceeding with acquisition of the
Property; (c) Buyer accepts the Property in the Property's present condition; (d) to the extent
that Buyer's own expertise with respect to any matter regarding the Property is insufficient to
enable Buyer to reach an informed conclusion regarding such matter, Buyer has engaged the
services of Persons qualified to advise Buyer with respect to such matters; (e) Buyer has
received assurances acceptable to Buyer by means independent of Seller or Seller's agents of
the truth of all facts material to Buyer's acquisition of the Property pursuant to this Agreement;
and (f) the Property is being acquired by Buyer as a result of Buyer's own knowledge,
inspection and investigation of the Property and not as a result of any representation made by
Seller or Seller's agents relating to the condition of the Property, unless such statement or
representation is expressly and specifically set forth in this Agreement. Seller hereby expressly and
specifically disclaims any express or implied warranties regarding the Property.
3.5 Reservations. The approval of this Agreement by Seller shall not be binding on
the City Council of the City or any commission, committee, board or body of the City regarding
any other Approvals required by such bodies. No action by Seller with reference to this
Agreement or any related documents shall be deemed to constitute issuance or waiver of any
required Approvals regarding the Property or Buyer.
3.6 Non -Discrimination.
3.6.1 Buyer herein covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
be no discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those
bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall Buyer itself, or any
person claiming under or through Buyer, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the Property. The
foregoing covenants shall run with the land.
3.6.2 Buyer herein further covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
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be no discrimination on the basis of race, gender, religion, national origin, ethnicity, sexual
orientation, age or disability in the solicitation, selection, hiring or treatment of any contractors
or consultants, to participate in subcontracting/subconsulting opportunities.
3.6.3 Buyer understands and agrees that violation of any Subsection of this
Section 3.6 shall be considered a material breach of this Agreement and may result in
termination, debarment or other sanctions.
3.7 Form of Nondiscrimination and Nonsegregation Clauses . All deeds, leases or
contracts made relative to the Property, improvements thereon, or any part thereof, shall
contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
3.7.1 (a) (1) In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision,(p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under
or through him or her, establish or permit any practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51:3, 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior 'citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall also apply to the above paragraph.
3.7.2 (a) (1) In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon and subject to
the following conditions: That there shall be no discrimination against or segregation of any
person or group of persons, on account of any basis listed in `subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased."
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(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall apply to the above paragraph.
3.7.3 In contracts: "There shall be no discrimination against or segregation
of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the Property, nor shall the grantee or transferee itself or any person claiming
under or through him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sublessees, subtenants, or vendees of the Property."
3.8 Effect and Duration of Covenants. The covenants established in this Agreement
shall run with the land, without regard to technical classification and designation, and shall be
for the benefit and in favor of and enforceable against the original Buyer, or if the Buyer is no
longer the owner, then against its successors in interest, assigns and heirs. Unless set forth
otherwise, the covenants described in Section 3.7 shall commence upon the Close of Escrow
and shall be set forth and shall run for the time periods set forth in the applicable Grant Deed.
4. JOINT ESCROW INSTRUCTIONS
4.1 Opening of Escrow. The purchase and sale of the Property shall take place
through the Escrow to be conducted by Escrow Agent. Escrow shall be deemed opened when
a fully signed copy of this Agreement has been delivered to Escrow Agent. Escrow Agent shall
confirm the Escrow Opening Date in writing to each of the Parties, with a copy of the Escrow
Agent Consent signed by the authorized representative(s) of the Escrow Agent.
4.2 Escrow Instructions. This Section 4 constitutes the joint escrow instructions of
the Parties to Escrow Agent for conduct of the Escrow for the purchase and sale of the Property,
as contemplated by this Agreement. Buyer and Seller shall sign such further escrow instructions
consistent with the provisions of this Agreement as may be reasonably requested by Escrow
Agent. In the event of any conflict between the provisions of this Agreement and any further
escrow instructions requested by Escrow Agent, the provisions of this Agreement shall control.
4.3 Escrow Agent Authority. Seller and Buyer authorize Escrow Agent to:
4.3.1 Charges. Pay and charge Seller and Buyer for their respective shares of
the applicable fees, taxes, charges and costs payable by either Seller or Buyer regarding the
Escrow;
4.3.2 Settlement/Closing Statements. Release each Party's Escrow Closing
Statement to the other Party;
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4.3.3 Document Recording. File any documents delivered for recording
through the Escrow with the office of the Recorder of the County for recordation in the official
records of the County, pursuant to the joint instructions of the Parties; and
4.3.4 Counterpart Documents. Utilize documents signed by Seller or Buyer
in counterparts, including attaching separate signature pages to one original of the same
document.
4.4 Buyer's Conditions Precedent to Close of Escrow. Provided that the failure of
any such condition to be satisfied is not due to a Default under this Agreement by Buyer, Buyer's
obligation to purchase the Property from Seller on the Escrow Closing Date shall be conditioned
upon the satisfaction or waiver (waivers must be in writing and signed by Buyer) of each of the
following conditions on or before the Escrow Closing Date:
4.4.1 Title Policy. Title Company has agreed to issue the Buyer Title Policy
to Buyer upon payment of Title Company's premium for such policy;
4.4.2 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.4.3 Seller Escrow Deposits. Seller deposits all of the items into Escrow
required by Section 4.7 of this Agreement;
4.4.4 Settlement/Closing Statement. Buyer reasonably approves Buyer's
Escrow Closing Statement; and
4.4.5 Seller Pre -Closing Obligations. Seller performs all of Seller's material
obligations required to be performed by Seller pursuant to this Agreement prior to the Close of
Escrow.
4.5 Seller's Conditions Precedent to Close of Escrow. Provided that the failure of any
such condition to be satisfied is not due to a Default under this Agreement by Seller, Seller's
obligation to sell the Property to Buyer on the Escrow Closing Date shall be conditioned upon
the satisfaction or waiver (waivers must be in writing and signed by Seller) of each of the
following conditions precedent on or before the Escrow Closing Date:
4.5.1 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.5.2 Buyer Escrow Deposits. Buyer deposits all of the items into Escrow
required by Section 4.6 of this Agreement;
4.5.3 Settlement/Closing Statement. Seller reasonably approves Seller's
Escrow Closing Statement; and
4.5.4 Title Policy. The Company has agreed to issue the Buyer Title Policy
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to Buyer upon payment of Title Company's premium for such policy;
4.5.5 Buyer Pre -Closing Obligations. Buyer performs all of Buyer's material
obligations required to be performed by Buyer pursuant to this Agreement prior to Close of
Escrow.
4.6 Buyer's Escrow Deposits. Buyer shall deposit the following items into Escrow
and, concurrently, provide a copy of each document submitted into Escrow to Seller, at least one
(1) Business Day prior to the Escrow Closing Date:
4.6.1 Closing Funds. All amounts required to be deposited into Escrow by
Buyer under the terms of this Agreement to close the Escrow;
4.6.2 Certificate of Grant Deed Acceptance. The Certificate of Acceptance
attached to the Grant Deed signed by Buyer in recordable form;
4.6.3 Escrow Closing Statement. The Buyer's Escrow Closing Statement
signed by the authorized representative(s) of Buyer; and
4.6.4 Other Reasonable Items. Any other documents or funds required to be
delivered by Buyer under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that
have not previously been delivered by Buyer.
4.7 Seller's Escrow Deposits. Seller shall deposit the following documents into
Escrow and, concurrently, provide a copy of each document deposited into Escrow to Buyer, at
least one (1) Business Day prior to the Escrow Closing Date:
4.7.1 Grant Deed. The Grant Deed signed by the authorized representative(s) of
Seller in recordable form;
4.7.2 Escrow Closing Statement. The Seller's Escrow Closing Statement
signed by the authorized representative(s) of Seller;
4.7.3 FIRPTA Affidavit. A FIRPTA affidavit signed by the authorized
representative(s) of Seller, in the form used by the Escrow Agent;
4.7.4 Form 593. A Form 593 signed by the authorized representative(s) of
Seller; and
4.7.5 Other Reasonable Items. Any other documents or funds required to be
delivered by Seller under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that
have not been previously delivered by Seller.
4.8 Closing Procedure. When each of Buyer's Escrow deposits, as set forth in Section
4.6 of this Agreement, and each of Seller's Escrow deposits as set forth in Section 4.7 of this
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Agreement, are deposited into Escrow, Escrow Agent shall request confirmation in writing from
both Buyer and Seller that each of their respective conditions precedent to the Close of Escrow,
as set forth in Sections 4.4 and 4.5, respectively, are `satisfied or waived. Upon Escrow Agent's
receipt of written confirmation from both Buyer and Seller that each of their respective conditions
precedent to the Close of Escrow are satisfied or waived, Escrow Agent shall close the Escrow by
doing all of the following:
4.8.1 Recording and Distribution of Documents. Escrow Agent shall cause
the following documents to be filed with the Recorder of the County for recording in the official
records of the County regarding the Property in the following order of priority at Close of
Escrow: (a) the Grant Deed; and (b) any other documents to be recorded regarding the Property
through the Escrow upon the joint instructions of the Parties. At Close of Escrow, Escrow Agent
shall deliver conformed copies of all documents filed for recording with in the official records of
the County through the Escrow to Seller, Buyer and any other Person designated in the written joint
escrow instructions of the Parties to receive an original or conformed copy of each such document.
Each conformed copy of a document filed for recording by Escrow Agent pursuant to this
Agreement shall show all recording information. The Parties intend and agree that this Section
4.8.1 shall establish the relative priorities of the documents to be recorded in the official records
of the County through the Escrow, by providing for recordation of senior interests prior to junior
interests, in the order provided in this Section 4.8.1;
4.8.2 Funds. Distribute all funds held by the Escrow Agent pursuant to the
Escrow Closing Statements approved in writing by Seller and Buyer, respectively;
4.8.3 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States
Internal Revenue Service;
4.8.4 Form 593. File the Form 593 with the California Franchise Tax Board;
and
4.8.5 Title Policy. Obtain from the Title Company and deliver to Buyer the
Buyer Title Policy issued by the Title Company, with a copy delivered to Seller.
4.9 Close of Escrow. The Close of Escrow shall occur on or before the Escrow
Closing Date. The Parties may mutually agree to change the Escrow Closing Date by joint written
instruction to Escrow Agent. The Executive Director in his or her sole and absolute discretion,
acting on behalf of the Seller, is authorized to agree to one or more extensions of the Escrow
Closing Date on behalf of Seller up to a maximum time period extension of ninety (90) days in the
aggregate. If for any reason (other than a Default or Event of Default by such Party) the Close of
Escrow has not occurred on or before the Escrow Closing Date, then any Party not then in Default
under this Agreement may cancel the Escrow and terminate this Agreement, without liability to
the other Party or any other Person for such cancellation and termination, by delivering Notice of
termination to both the other Party and Escrow Agent. Following any such Notice of termination
of this Agreement and cancellation of the Escrow, the Parties and Escrow Agent shall proceed
pursuant to Section 4.13 of this Agreement. Without limiting the right of either Party to cancel
the Escrow and terminate this Agreement pursuant to this Section 4.9, if the Escrow does not close
on or before the Escrow Closing Date and neither Party has exercised its contractual right to cancel
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the Escrow and terminate this Agreement under this Section 4.9 before the first date on which
Escrow Agent Notifies both Parties that Escrow is in a position to close in accordance with the
terms and conditions of this Agreement, then the Escrow shall close as soon as reasonably
possible following the first date on which Escrow Agent Notifies both Parties that Escrow is in a
position to close in accordance with the terms and conditions of this Agreement.
4.10 Escrow Costs. Escrow Agent shall Notify Buyer and Seller of the costs to be
borne by each of them at the Close of Escrow by delivering an Escrow Closing Statement to both
Seller and Buyer at least four (4) Business Days prior to the Escrow Closing Date. Each Party
shall pay its own costs and expenses arising in connection with the Close of Escrow (including,
without limitation, its own attorneys' and advisors' fees, charges, and disbursements), except
the following costs ("Closing Costs"), which shall be allocated between the Parties as follows:
(a) Escrow Agent charges for the conduct of the Escrow shall be paid one-half
(1/2) by Seller and one-half (1/2) by Buyer;
(b) The cost of the Buyer Title Policy attributable to the standard coverage
portion shall be paid by Seller;
(c) The cost of the Buyer Title Policy attributable to the extended coverage
portion or any additional coverage and any endorsements shall be paid by Buyer;
(d) The cost of any and all State, County, or City documentary stamps or
transfer taxes regarding the conveyance of the Property through the Escrow shall be paid by
Buyer;
(e) The cost of any recording fees in connection with the recording of any
documents in the official records of the County for the Close of Escrow and any and all other
charges, fees, and taxes levied by each and every Government relative to the conveyance of the Property
through Escrow shall be paid by Buyer;
(f) Ad valorem taxes and assessments, if any, upon the Property, prior to
the conveyance of title of the Property to Buyer shall be paid by Seller, and after the
conveyance of title of the Property to Buyer shall be paid by Buyer consistent with Section
4.11 of this Agreement; and
(g) All other closing fees and costs shall be charged to and paid by Seller
and Buyer in accordance with customary practices in the County.
4.11 Allocation of Taxes. Real Estate Taxes relating to the Property, if any, shall be
prorated between Seller and Buyer as of Midnight on the date prior to the Close of Escrow.
4.12 Escrow Cancellation Charges. If the Escrow fails to close due to Seller's Default
under this Agreement, Seller shall pay all ordinary and reasonable Escrow and title order
cancellation charges charged by Escrow Agent or Title Company, respectively. If the Escrow
fails to close due to Buyer's Default under this Agreement, Buyer shall pay all ordinary and
reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company,
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respectively. If the Escrow fails to close for any reason other than the Default of either Buyer or
Seller, Buyer and Seller shall each pay one-half (1/2) of any ordinary and reasonable Escrow and
title order cancellation charges charged by Escrow Agent or Title Company, respectively.
4.13 Escrow Cancellation. If this Agreement is terminated pursuant to a contractual
right granted to a Party in this Agreement to terminate this Agreement (other than due to an
Event of Default by the other Party), the Parties shall do all of the following:
4.13.1 Cancellation Instructions. The Parties shall, within three (3) Business Days
following Escrow Agent's written request, sign any reasonable Escrow cancellation instructions
requested by Escrow Agent;
4.13.2 Return of Funds and Documents. Within ten (10) Business Days
following receipt by the Parties of a settlement statement of Escrow and title order cancellation
charges from Escrow Agent (if any) or within twenty (20) calendar days following Notice of
termination, whichever is earlier: (a) Buyer or Escrow Agent shall return to Seller all documents
previously delivered by Seller to Buyer or Escrow Agent, respectively, regarding the Property or the
Escrow; (b) Seller or Escrow Agent shall return to Buyer all documents previously delivered by
Buyer to Seller or Escrow Agent, respectively, regarding the Property or the Escrow; (c) Escrow
Agent shall, unless otherwise expressly provided in this Agreement, return to Buyer all funds
deposited in Escrow by Buyer, less Buyer's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance with Section 4.12 of this Agreement; and (d)
Escrow Agent shall, unless otherwise provided in this Agreement, return to Seller all funds
deposited in Escrow by Seller, less Seller's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance with Section 4.12 of this Agreement.
4.14 Report to IRS. After the Close of Escrow and prior to the last date on which such
report is required to be filed with the Internal Revenue Service under applicable Federal law,
if such report is required pursuant to Internal Revenue Code Section 6045(e), Escrow Agent
shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue
Service on Form 1099-B, W-9 or such other form(s) as may be specified by the Internal
Revenue Service pursuant to Internal Revenue Code Section 6045(e). Concurrently with the
filing of such reporting form with the Internal Revenue Service, Escrow Agent shall deliver a
copy of the filed form to both Seller and Buyer.
4.15 Condemnation. If any material portion of the Property, or any interest in any
portion of the Property, is taken by condemnation prior to the Close of Escrow by any condemning
authority other than Seller, including, without limitation, the filing of any notice of intended
condemnation or proceedings in the nature of eminent domain, commenced by any governmental
authority, other than Seller, Seller shall immediately give Buyer Notice of such occurrence, and
Buyer shall have the option, exercisable within ten (10) Business Days after receipt of such Notice
from Seller, to either: (i) terminate this Agreement; or (ii) continue with this Agreement in
accordance with its terms, in which event Seller shall assign to Buyer any right of Seller to receive
any condemnation award attributable to the Property.
5. REMEDIES AND INDEMNITY
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5.1 BUYER'S RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON
RECOVERY OF DAMAGES.
5.1.1 ELECTION OF REMEDIES. DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT BY SELLER UNDER THIS AGREEMENT PRIOR TO THE
CLOSING, BUYER SHALL BE LIMITED TO EITHER OF THE FOLLOWING REMEDIES:
(1) AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE OF THIS
AGREEMENT; OR (2) TERMINATION OF THIS AGREEMENT AND AN ACTION TO
RECOVER THE DEPOSIT. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO
BUYER UNDER THIS AGREEMENT FOR ANY AMOUNT EXCEEDING THE AMOUNT SET
FORTH IN THIS SECTION 5.1.1, ANY SPECULATIVE, CONSEQUENTIAL,
COLLA"I'ERAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OR FOR ANY LOSS OF
PROFITS SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED BY BUYER.
5.1.2 WAIVER OF RIGHTS. SELLER AND BUYER EACH
ACKNOWLEDGE AND AGREE THAT SELLER WOULD NOT HAVE ENTERED INTO
THIS AGREEMENT IF SELLER WERE TO BE LIABLE TO BUYER FOR ANY
MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT UNDER THIS AGREEMENT BY SELLER,
OTHER THAN SPECIFIC PERFORMANCE OF ;THIS AGREEMENT OR TERMINATION
OF THIS AGREEMENT AND PAYMENT OF THE AMOUNT SPECIFIED IN CLAUSE "(2)"
OF SECTION 5.1.1 OF THIS AGREEMENT. ACCORDINGLY, SELLER AND BUYER
AGREE THAT THE REMEDIES SPECIFICALLY PROVIDED FOR IN SECTION 5.1.1 OF
THIS AGREEMENT ARE REASONABLE AND SHALL BE BUYER'S SOLE AND
EXCLUSIVE RIGHTS AND REMEDIES DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT UNDER THIS AGREEMENT BY SELLER. BUYER WAIVES ANY RIGHT TO
PURSUE ANY REMEDY OR DAMAGES AGAINST SELLER ARISING FROM OR
RELATING TO THIS AGREEMENT OTHER THAN THOSE SPECIFICALLY PROVIDED
IN SECTION 5.1.1 OF THIS AGREEMENT.
5.1.3 CALIFORNIA CIVIL CODE SECTION 1542 WAIVER. BUYER
ACKNOWLEDGES THE PROTECTIONS OF CALIFORNIA CIVIL CODE SECTION 1542
REGARDING THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 5.1,
WHICH CIVIL CODE SECTION READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFEC FED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
5.1.4 ACKNOWLEDGMENT. BY INITIALING BELOW, BUYER
KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS
(WHETHER STA l'E OR FEDERAL) OF SIMILAR EFFECT SOLELY REGARDING THE
WAIVERS AND RELEASES CONTAINED IN THIS SECTION 5.1.
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Initials of Authorized
Buyer representative(s)
5.1.5 STATEMENT OF INTENT. CALIFORNIA CIVIL CODE SECTION 1542
NOTWITHSTANDING, IT IS THE IN 1'ENTION OF BUYER TO BE BOUND BY THE
LIMITATIONS ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 5.1, AND
BUYER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST SELLER FOR
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE
RELIEF RELATED TO ANY EVENT OF DEFAULT UNDER THIS AGREEMENT BY
SELLER, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.1, WHETHER OR
NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO BUYER AS
OF THE EFFECTIVE DATE OF THIS AGREEMENT.
5.2 LIQUIDA lED DAMAGES TO SELLER. IF THE CLOSE OF ESCROW DOES NOT
OCCUR ON OR BEFORE THE ESCROW CLOSING DATE DUE TO BUYER'S DEFAULT,
THEN SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE
AMOUNT OF THE DEPOSIT IS THE REASONABLE ESTIMATE BY THE PARTIES OF
THE DAMAGES SELLER WOULD SUFFER FROM SUCH DEFAULT, IT BEING AGREED
THAT IT IS EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE AND IMPRACTICABLE, TO
FIX THE EXACT AMOUNT OF DAMAGE THAT WOULD BE INCURRED BY SELLER
AS A RESULT OF SUCH DEFAULT BY BUYER., UPON SUCH A DEFAULT BY BUYER,
ESCROW SHALL BE CANCELED AND THE PARTIES SHALL PROCEED IN
ACCORDANCE WITH SECTION 4.12 OF THIS AGREEMENT. IN ADDITION, IF ALL OR
ANY PORTION OF THE DEPOSIT HAS BEEN DEPOSITED INTO ESCROW BY BUYER,
ESCROW AGENT IS HEREBY IRREVOCABLY INSTRUC l'ED BY BUYER AND SELLER TO
DISBURSE THE DEPOSIT TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S
DEFAULT UNDER THIS AGREEMENT AND FAILURE TO COMPLETE THE
PURCHASE OF THE PREMISES, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS
1671, ET. SEQ.
5.3 Legal Actions. Either Party may institute legal action, at law or in equity, to
enforce or interpret the rights or obligations of the Parties under this Agreement or recover
damages, subject to the provisions of Section 5.1 or Section 5.2 of this Agreement, as applicable.
5.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and
the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by such Party, at the same or different times, of any other rights or remedies for the
same Default or the same rights or remedies for any other Default by the other Party.
5.5 Indemnification.
5.5.1 Buyer Indemnification Obligations. Buyer shall Indemnify the Seller
Parties against any Claim related to this Agreement to the extent such Claim arises from: (a) any
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act, omission or negligence of the Buyer; (b) any agreements that Buyer (or anyone claiming by or
through Buyer) makes with a Third Person regarding the property; (c) any worker's compensation
claim or determination relating to any employe of Buyer or its contractors; or (d) any
Environmental Claim attributable to any action or omission of Buyer.
5.5.2 Independent of Insurance Obligations. Buyer's indemnification
obligations under this Agreement shall not be construed or interpreted as in any way restricting,
limiting, or modifying Buyer's insurance or other obligations under this Agreement. Buyer's
obligation to Indemnify the Seller Parties under this Agreement is independent of Buyer's
insurance and other obligations under this Agreement. Buyer's compliance with Buyer's insurance
obligations and other obligations under this Agreement shall not in any way restrict, limit or modify
Buyer's indemnification obligations under this Agreement and are independent of Buyer's
indemnification and other obligations under this Agreement.
5.5.3 Survival of Indemnification and Defense Obligations. The indemnity
and defense obligations of the Buyer under this Agreement shall survive the expiration or earlier
termination of this Agreement.
5.5.4 Indemnification Procedures. Wherever this Agreement requires any
Indemnitor to Indemnify any Indemnitee:
(a) Prompt Notice. The Indemnitee shall promptly Notify the
Indemnitor of any Claim.
(b) Selection of Counsel. The Indemnitor shall select counsel reasonably
acceptable to Indemnitee. If the Indemnitee, in good faith, determines that its interests are not
adequately protected by being provided a defense by the Indemnitor, the Indemnitee (and the
other Indemnified parties) may, at its election, conduct the defense or participate in the defense
of any Claim related in any way to this indemnification. If the Indemnitee, on behalf of the
Indemnified parties, makes the foregoing election to conduct its own defense or obtain
independent legal counsel in defense of any Claim related to this indemnification, then the
Indemnitor shall pay all of the Legal Costs related thereto, including, without limitation,
reasonable attorneys' fees and costs.
(c) Cooperation. The Indemnitee shall reasonably cooperate with
the Indemnitor's defense of the Indemnitee.
(d) Settlement. The Indemnitor may only settle a Claim with the
consent of the Indemnitee. Any settlement shall procure a complete release of the Indemnitee
from the subject Claims, shall not require the Indemnitee to make any payment to the claimant
and shall provide that neither the Indemnitee, nor the Indemnitor on behalf of the Indemnitee,
admits any liability.
6. GENERAL PROVISIONS
6.1 Incorporation of Recitals. The Recitals of fact set forth preceding this
Agreement are true and correct and are incorporated into this Agreement in their entirety by
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Centro Purchase & Sale Agreement v3
this reference.
6.2 Notices, Demands and Communications Between the Parties.
6.2.1 Delivery. Any and all Notices submitted by any Party to another Party
pursuant to or as required by this Agreement shall be proper, if in writing and sent by messenger
for immediate personal delivery, nationally recognized overnight (one Business Day) delivery
service (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United States
mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated
below in Section 6.2.2. Notice may be sent in the same manner to such other addresses as either
Party may from time to time designate by Notice in accordance with this Section 6.2. Notice shall be
deemed received by the addressee, regardless of whether or when any return receipt is received by
the sender or the date set forth on such return receipt, on the day that the Notice is sent by messenger
for immediate personal delivery, one Business Day after delivery to a nationally recognized
overnight delivery service or three (3) calendar days after the Notice is placed in the United
States mail in accordance with this Section 6.2. Any attorney representing a Party may give any
Notice on behalf of such Party.
6.2.2 Addresses. The Notice addresses for the Parties, as of the Effective Date
of this Agreement, are as follows:
To Buyer:
To Seller:
Centro Indy, LLC
Attn: Andrew Held
770 3rd Avenue S.W.
Cannel, Indiana 46032
Successor Agency to the Community Development
Commission as the National City Redevelopment Agency
1243 National City Boulevard
National City, California 91950
Attention: Executive Director
With a Copy to: Claudia Silva, General Counsel/City Attorney
City of National City
1243 National City Boulevard
National City, California 91950
6.3 Relationship of Parties. The Parties each intend and agree that Seller and Buyer
are independent contracting entities and do not intend by this Agreement to create any
partnership, joint venture or similar business arrangement, relationship or association between
them.
6.4 Warranty Against Payment of Consideration for Agreement. Buyer represents
and warrants to Seller that: (a) Buyer has not employed or retained any Person to solicit or
secure this Agreement upon an agreement or understanding for a commission, percentage,
brokerage or contingent fee, excepting bona fide employees of Buyer and Third Persons to
whom fees are paid for professional services related to the documentation of this Agreement;
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Centro Purchase & Sale Agreement v3
and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given
by Buyer or any of Buyer's agents, employees or representatives to any elected or appointed
official or employee of the Seller in an attempt to secure this Agreement or favorable terms or
conditions for this Agreement. Breach of the representations or warranties of this Section 6.4
shall entitle Seller to terminate this Agreement and cancel the Escrow (if open) upon seven (7)
calendar days Notice to Buyer and, if the Escrow is open, to Escrow Agent. Upon any such
termination of this Agreement, Buyer shall immediately refund any payments made to or on
behalf of Buyer by Seller pursuant to this Agreement or otherwise related to the Property, any
Approval or any CEQA Document, prior to the date of such termination.
6.5 Calculation of Time Periods. Unless otherwise specified, all references to time
periods in this Agreement measured in days shall be to consecutive calendar days, all references
to time periods in this Agreement measured in months shall be to consecutive calendar months
and all references to time periods in this Agreement measured in years shall be to consecutive
calendar years. Any reference to Business Days in this Agreement shall mean consecutive
Business Days.
6.6 Principles of Interpretation. No inference in favor of or against any Party shall
be drawn from the fact that such Party has drafted any part of this Agreement. The Parties
have both participated substantially in the negotiation, drafting and revision of this Agreement,
with advice from legal or other counsel and advisers of their own selection. A word, term or
phrase defined in the singular in this Agreement may be used, in the plural, and vice versa, all
in accordance with ordinary principles of English grammar, which shall govern all language
in this Agreement. The words "include" and "including" in this Agreement shall be construed
to be followed by the words "without limitation". Each collective noun in this Agreement shall
be interpreted as if followed by the words "(or any part of it)", except where the context clearly
requires otherwise. Every reference to any document, including this Agreement, refers to such
document, as modified from time to time (excepting any modification that violates this
Agreement), and includes all exhibits, schedules, addenda and riders to such document. The
word "or" in this Agreement includes the word "and". Every reference to a law, statute,
regulation, order, form or similar governmental requirement refers to each such requirement
as amended, modified, renumbered, superseded or succeeded, from time to time.
6.7 Governing Law. The ,procedural and substantive laws of the State shall govern
the interpretation and enforcement of this Agreement, without application of conflicts or choice of
laws principles or statutes. The Parties acknowledge and agree that this Agreement is entered
into, is to be fully performed in and relates to real property located in the County of San Diego,
State of California. All legal actions arising from this Agreement shall be filed in the Superior
Court of the State in and for the County or in the United States District Court with jurisdiction in
the County.
6.8 Unavoidable Delay; Extension of Time of Performance.
6.8.1 Notice. Subject to any specific provisions of this Agreement stating that
they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of an
Unavoidable Delay, performance by either Party under this Agreement shall not be deemed or
considered to be in Default, where any such Default is due to the occurrence of an Unavoidable
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Centro Purchase & Sale Agreement v3
Delay. Any Party claiming an Unavoidable Delay jshall Notify the other Party: (a) within three
(3) calendar days after such Party knows of any such Unavoidable Delay; and (b) within three
(3) calendar days after such Unavoidable Delay ceases to exist. To be effective, any Notice of
an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The Party
claiming an extension of time to perform due to an Unavoidable Delay shall exercise
commercially reasonable efforts to cure the condition causing the Unavoidable Delay, within
a reasonable time. The extension of time for performance under this Agreement resulting from
the occurrence of an Unavoidable Delay shall commence on the date of occurrence of the
condition causing the Unavoidable Delay and shall, except for a legal action described in
Section 6.12 of this Agreement, in no event be longer than 'ninety (90) calendar days after
written Notice is received by a Party from the other Party of the occurrence of such an
Unavoidable Delay.
6.8.2 Assumption of Economic Risks. EACH PARTY EXPRESSLY
AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER
PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN
MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC
ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR
ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY
THE PERFORMANCE OF EACH AND . ` EVERY ONE OF EACH PARTY'S
OBLIGATIONS AND COVENANTS ARISINGUNDER THIS AGREEMENT.
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE
PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN
ECONOMIC CIRCUMSTANCES OR MARKET DEMAND OR CONDITIONS AND
WAIVE, TO THE GREATEST EXTENT ALLOWED BY LAW, ANY DEFENSE, CLAIM,
OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY,
IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION
OF PURPOSE, OR SIMILAR THEORIES; THE PARTIES AGREEE THAT ADVERSE
CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY
OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR
DEMANDS, SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT
OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS,
CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES
EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET
CHANGES, WHETUER,OR NOT FORESEEABLE AS OF THE EFFECTIVE DATE.
Initials of Authorized
Seller Representative(s)
Initials of Buyer
6.9 Tax Consequences. Buyer acknowledges and agrees that Buyer shall bear any
and all responsibility, liability, costs or expenses connected in any way with any tax
consequences experienced by Buyer related to this Agreement.
6.10 Real Estate Commissions.
6.10.1 Seller Warranty. Seller: (a) represents and warrants that Seller did not
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Centro Purchase & Sale Agreement v3
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Seller; and (b) shall Indemnify Buyer against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.1.
6.10.2 Buyer Warranty. Buyer: (a) represents and warrants that Buyer did not
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Buyer; and (b) shall Indemnify Seller against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.2.
6.11 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied,
is intended to confer any rights or remedies under or by reason of this Agreement on any Person
other than the Parties and their respective permitted successors and assigns, nor is anything in
this Agreement intended to relieve or discharge any obligation of any Third Person to any Party
or give any Third Person any right of subrogation or action over or against any Party.
6.12 Buyer Assumption of Risks of Legal Challenges. Buyer assumes the risk of
delays or damages that may result to Buyer from each and every Third Person legal action
related to Seller's approval of this Agreement or any associated Approvals, even in the event
that an error, omission or abuse of discretion by Seller is determined to have occurred. If a
Third Person files a legal action regarding Seller's approval of this Agreement or any
associated Approvals (exclusive of legal actions alleging violation of Government Code
Section 1090 by officials of Seller), Buyer shall have the option to either: (a) cancel the Escrow
and terminate this Agreement, in which case the Parties and the Escrow Agent shall proceed
in accordance with Section 4.13 of this Agreement; or (b) Indemnify Seller against such Third
Person legal action, including all Legal Costs, monetary awards, sanctions and the expenses of
any and all financial or performance obligations resulting from the disposition of the legal
action; provided, however, that option "(a)" under this Section 6.12 shall only be available to
Buyer prior to the Close of Escrow. Should Buyer fail to Notify Seller of Buyer's election
pursuant to this Section 6.12 at least fifteen (15) calendar days before response to the legal
action is required by Seller, prior to the Close of Escrow, Buyer shall be deemed to have elected
to cancel the Escrow and terminate this Agreement pursuant to this Section 6.12 and, following
the Close of Escrow, Buyer shall be deemed to have elected to Indemnify Seller against such
Third Person legal action pursuant to this Section 6.12, all without further Notice to or action
by either Party. Seller shall reasonably cooperate with Buyer in defense of Seller in any legal
action subject to this Section 6.12, subject to Buyer completely performing Buyer's indemnity
obligations for such legal action. Should Buyer elect or be deemed to elect to Indemnify Seller
regarding a legal action subject to this Section 6.12, but fail to or stop providing such
indemnification of Seller, then Seller shall have the right to terminate this Agreement or cancel
the Escrow (or both) by Notice to Buyer and, if the Escrow is open, to the Escrow Agent.
Nothing contained in this Section 6.12 is intended to be nor shall be deemed or construed to
be an express or implied admission that Seller may be liable to Buyer or any Person for
damages or other relief regarding an alleged or established failure of Seller to comply with the
law. Any legal action that is subject to this Section 6.12 (including any appeal periods and the
pendency of any appeals) shall constitute an Unavoidable Delay and the time periods for
performance by either Party under this Agreement may be extended pursuant to the provisions
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Centro Purchase & Sale Agreement v3
of this Agreement regarding Unavoidable Delay.
6.13 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
6.14 Time Declared to be of the Essence. As to the performance of any obligation
under this Agreement of which time is a component, the performance of such obligation within
the time specified is of the essence.
6.15 Entire Agreement. This Agreement integrates all of the terms and conditions
mentioned in this Agreement or incidental to this Agreement, and supersedes all prior or
contemporaneous negotiations or previous agreements between the Parties, whether written or
oral, with respect to all or any portion of the Property.
6.16 Waivers and Amendments. All waivers of the provisions of this Agreement
must be in writing and signed by the authorized representative(s) of the Party making the
waiver. All amendments to this Agreement must be in writing and, signed by the authorized
representative(s) of both Seller and Buyer.
6.17 No Implied Waiver. Failure to insist on any one occasion upon strict compliance
with any term, covenant, condition,' restriction or agreement contained in this Agreement shall
not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall
any waiver or relinquishment of any rights or powers under this Agreement, at any one time
or more times, be deemed a waiver or relinquishment of such right or power at any other time
or times.
6.18 Executive Director Implementation. Seller shall implement this Agreement
through the Executive Director, acting on behalf of the Seller. The Executive Director or
his/her designee is hereby authorized by Seller to, enter into agreements and sign documents
referenced in this Agreement or reasonably required to implement this Agreement on behalf
of Seller, to issue approvals, interpretations or waivers, and to enter into certain amendments
to this Agreement on behalf of Seller, to the extent that any such action(s) does/do not increase
the monetary obligations of Seller. All other actions shall require the consideration and
approval of the Seller's governing body, unless expressly provided otherwise by action of the
Seller's governing body. Nothing in this Section 6.18 shall restrict the submission to the
Seller's governing body of any matter within the Executive Director's authority under this
Section 6.18, in the Executive Director's sole and absolute discretion, to obtain the Seller's
governing body's express and specific authorization on such matter. The specific intent of this
Section 6.18 is to authorize certain actions on behalf of Seller, by the Executive Director, but
not to require that such actions be taken by the Executive Director including, without
limitation, any extension(s) granted pursuant to Section 4.9 of this Agreement, without
consideration by Seller's governing body.
6.19 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
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Centro Purchase & Sale Agreement v3
completely resolved between the Parties, either by written settlement, entry of a non -appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions of
this Agreement relating to dispute resolution, indemnity or limitations on damages or remedies
shall survive any expiration or termination of this Agreement.
6.20 Counterparts. This Agreement shall be signed in three (3) triplicate originals,
each of which is deemed to be an original.
6.21 Facsimile or Electronic Signatures. Signatures delivered by facsimile or
electronic mail shall be binding as originals upon the Party so signing and delivering; provided,
however, that original signature(s) of each Party shall be required for each document to be
recorded.
[Signatures on following page]
Page 28 of 29
Centro Purchase & Sale Agreement v3
SIGNATURE PAGE
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
IN WITNESS WHEREOF, the Parties have signed and entered into this Agreement by and
through the signatures of their respective authorized representative(s) as follows:
"SELLER"
"BUYER"
SUCCESSOR AGENCY TO THE CENTRO INDY, LLC, an Indiana limited
COMMUNITY DEVELOPMENT liability company
COMMISSION AS THE NATIONAL CITY *see notes below
REDEVELOPMENT AGENCY, a California
public entity
By: ,�� — -- By:
Name: __ i,� c.rc-inName: Andrew J. Held
Title: Executive Director Title: President
ATTEST:
By: /i LA- By:
Name: M c e t1 A4 i . AA«A Name:
Title: C€D
Title: Secretary
APPROVED AS TO FORM:
By
Name: laudia Gac ua Sia
Title: General Cau :el
KANE, BALLMER & BERKMAN
By:
Name: S
Title: Special Counsel
Centro Purchase & Sale Agreement v3
*Notes: This document must be executed by the
Corporation's Chief Executive Officer,
President or Vice -President, on the one hand,
and the Corporations' Chief Financial Officer,
Treasurer, Assistant Treasurer or Secretary on
the other hand.
Page 29 of 29
SIGNATURE PAGE
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
IN WITNESS WHEREOF, the Parties have signed and entered into this Agreement by and
through the signatures of their respective authorized representative(s) as follows:
"SELLER" "BUYER"
SUCCESSOR AGENCY TO THE CENTRO INDY, LLC, an Indiana limited
COMMUNITY DEVELOPMENT liability company
COMMISSION AS THE NATIONAL CITY *see notes below
REDEVELOPMENT AGENCY, a California
public entity
By:
By:Of-4
Name: Name: Andrew J. Held
Title: Executive Director Title: President
ATTEST:
By: By:
Name: Name:
Title: Secretary Title: CEO U
APPROVED AS TO FORM: *Notes: This document must be executed by the
Corporation's Chief Executive Officer,
President or Vice -President, on the one hand,
By: and the Corporations' Chief Financial Officer,
Name: Claudia Gacitua Silva Treasurer, Assistant Treasurer or Secretary on
Title: General Counsel the other hand.
KANE, BALLMER & BERKMAN
By:
Name:
Title: Special Counsel
Page 29 of 29
Centro Purchase & Sale Agreement v3
EXHIBIT "A"
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Property Legal Description
The land referred to herein is situated in the State of California, County of San Diego, City
of National City and described as follows:
A Condominium comprised of:
PARCEL 1:
An undivided 1 /61 st 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, as File No. 2010-
0729372 of Official Records.
EXCEPTING THEREFROM, the Association Property and Units 101 through 419,
inclusive, Units 101— 104 inclusive; 201-219 inclusive; 301-319 inclusive; 401-419
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, in the
Office of the County Recorder of San Diego County ("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 ("Declaration"), recorded on April 19, 2011, as Instrument No. 2011-0202640, of
the Official Records of San Diego County, California, including any amendments thereto.
PARCEL 2:
Unit No. 401, 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.
EXHIBIT A
Page 1 of 2
PARCEL 4:
Those certain Exclusive Use Association Property parking spaces shown and designated in
the above -referenced Condominium Plan with the designation "49&50", 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 other purposes, all as described in
the Declaration.
APN: 556-554-22-43
EXHIBIT A
Page 2 of 2
EXHIBIT "B"
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Grant Deed
[behind this page]
EXHIBIT B
RESOLUTION NO. 2016 — 78
RESOLUTION OF THE SUCCESSOR AGENCY TO THE COMMUNITY
DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT
AGENCY APPROVING A REAL PROPERTY PURCHASE AND
SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS FOR THE SALE
OF A CONDOMINIUM UNIT LOCATED AT 45 EAST 12TH STREET, NO. 401
IN NATIONAL CITY TO CENTRO INDY, LLC
WHEREAS, the Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property generally
consisting of an approximate 901 square foot condominium unit and two (2) parking spaces
located at 45 E. 12th Street; #401 (Assessor's Parcel No. 556-554-22-43) within the City of
National City, County of San Diego, State of California ("Property"); and
WHEREAS, pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and pursuant
to California Health and Safety Code Section 34173, the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency ("Successor Agency")
became the successor agency and successor -in -interest to the Redevelopment Agency,
confirmed by Resolution No. 2012-15 adopted on January 10, 2012, by the City Council of the
City of National City ("City"); and
WHEREAS, in accordance with California Health and Safety Code Section
34191.5, the Property was listed on Successor Agency's Revised Long Range Property
Management Plan ("LRPMP"), which provides that the Property is to be sold at fair market
value, and the LRPMP has been approved by the Oversight Board of the Successor Agency
("Oversight Board") and the California Department of Finance ("DOF"). The LRPMP provided
that the estimate of current value of the Property was $195,000 based upon an appraisal by the
Arens Group, Inc. dated September 6, 2011; and
WHEREAS, Centro Indy, LLC ("Buyer") has made an offer to purchase the
Property from Successor Agency at the Property's current "as is" fair market value of $325,000,
and Successor Agency desires to sell the Property to Buyer pursuant to the terms and
conditions of a proposed Real Property Purchase and Sale Agreement and Joint Escrow
Instructions ("Agreement"). A copy of the proposed Agreement has been provided to the
Successor Agency and the proposed Agreement will be submitted to the Oversight Board for
review if approved by the Successor Agency; and
WHEREAS, in accordance with the DOF-approved LRPMP, the net proceeds
from the sale of the Property pursuant to the proposed Agreement will be distributed as property
tax to each taxing entity in an amount proportionate to its share of property tax revenues; and
WHEREAS, at its regular meeting on May 17, 2016, the Successor Agency met,
and considered approving the Agreement and the sale of the Property as provided in the
Agreement; and
WHEREAS, a public notice was published in a newspaper of general circulation
on May 6, 2016 providing notification of the public meeting of the Oversight Board on May 18,
2016 in compliance with the requirements of Health and Safety Code Sections 34181(a) and
34181(f); and
Resolution No. 2016 — 78
Page Two
May 17, 2016
WHEREAS, the transfer of real property is not a "Project" under section 15378 of
the California Environmental Quality Act ("CEQA") Guidelines because the proposed action
consists of administrative activity that will not result in direct or indirect physical changes to the
environment and, as such, pursuant to section 15061(b)(3) of the CEQA Guidelines is not
subject to CEQA.
NOW, THEREFORE, BE IT RESOLVED by the Successor Agency as follows:
SECTION 1. The Recitals set forth above are true and correct and are incorporated
into this Resolution by reference.
SECTION 2. The Successor Agency hereby approves of the terms of the Agreement.
SECTION 3. The Successor Agency hereby approves of and directs the sale and
conveyance of the Property from Successor Agency to Buyer in accordance with the terms and
conditions set forth in the Agreement, subject to approval of the Agreement by the Oversight
Board.
SECTION 4. The Successor Agency hereby approves of the transfer of all of the net
proceeds received from the sale of the Property and the distribution of such proceeds to the
taxing entities, subject to approval of the Agreement by the Oversight Board.
SECTION 5. The Successor Agency hereby authorizes and directs the Chairman or
the Executive Director of the Successor Agency, or his or her designee, to execute the
Agreement and any other documents necessary to carry out the sale of the Property and to take
all actions and sign any and all documents necessary to implement and effectuate the
Agreement and the actions approved by this Resolution as determined necessary by the
Executive Director, or his or her designee, to execute all documents on behalf of the Successor
Agency (including, without limitation, a grant deed), and to administer the Successor Agency's
obligations, responsibilities and duties to be performed pursuant to this Resolution and the
Agreement, subject to approval of the Agreement by the Oversight Board.
SECTION 6. If any provision of this Resolution or the application of any such provision
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications of this Resolution that can be given effect without the invalid provision or
application, and to this end, the provisions of this Resolution are severable. The City Council
declares that it would have adopted this Resolution irrespective of the invalidity of any particular
portion of this Resolution.
(Signatures page to follow)
Resolution No. 2016 — 78
Page Three
May 17, 2016
PASSED and ADOPTED this 17th day of May, 2016.
nson, Chairman
ATTEST:
Michael R. Dalla, City Clerk as
Secretary to the Successor Agency
PPROVED AS TO FORM:
laudia Gacit a Silva
Successo Ag - ncy Ge • - - I Counsel
Passed and adopted by the Successor Agency to the Community Development
Commission as the Redevelopment Agency of the City of National City, California, on
May 17, 2016 by the following vote, to -wit:
Ayes: Boardmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
By:
Chairman of the Successor Agency to the
Community Development Commission
as the Redevelopment Agency of the
City of National City, California
A
City Clerk Servig as Secretary
to the Successor Agency
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2016-78 of the Successor Agency to the Community Development
Commission as the Redevelopment Agency of the City of National City, California,
passed and adopted on May 17, 2016.
City Clerk Serving as Secretary
to the Successor Agency
By:
Deputy
SUCCESSOR AGENCY TO
THE COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT AGENCY
AGENDA STATEMENT
MEETING DATE: May 17, 2016
Ca0\6-a3
oG-10-�y
AGENDA ITEM NO. 5
ITEM TITLE:
Resolution of the Successor Agency to the Community Development Commission as the National City
Redevelopment Agency approving a real property Purchase and Sale Agreement and Joint Escrow
Instructions for the sale of a condominium unit located at 45 E. 12th Street, #401 in National City to
Centro Indy, LLC.
PREPARED BY: Carlos Aguirre, Comm. Dev. Mgr.
PHONE: 619-336-4391
APPROV
EXPLANATION:
Refer to the Attachment No. 1 Background Report for an explanation.
DEPARTMENT: Housing, Grants, & Asset
nagement
FINANCIAL STATEMENT:
ACCOUNT NO.
APPROVED: 1/4-1011e—Z14—
Finance
APPROVED: MIS
Net..proceeds from the sale of the property will be distributed among the affected taxing entities as required by
Health and Safety Code Section 34188. The City will receive 18% of net proceeds from the distribution.
ENVIRONMENTAL REVIEW:
Approval of the property transfer is not a "Project" under section 15378 of the California Environmental Quality
Act ("CEQA") Guidelines because the proposed action consists of administrative activity that will not result in
direct or indirect physical changes to the environment and, as such, pursuant to section 15061(b)(3) of the CEQA
Guidelines is not subject to CEQA.
ORDINANCE: INTRODUCTION: FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution approving the sale of Successor Agency- owned property to Centro Indy, LLC.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1) Background Report
2) Public Notice
3) Purchase and Sale Agreement
moo. '.o\6-'\%
Attachment 1
Centro Condo Background
The Redevelopment Commission, at their meeting of March 8, 2005, selected
Constellation Property Group to redevelop the CDC Parking Lot site, located at 41-43
12th Street across from the Martin Luther King Community Center.
The Disposition and Development Agreement included a "land for office space" trade, in
which the Commission would sell to the Developer the fee interest in the CDC Parking
Lot for $10, in exchange a flex -space office facility of one or two stories will be
constructed for the CDC and leased for $10/year for the next 50 years and a Downtown
Trolley Shuttle station would be constructed.
On October 17, 2006 the DDA was amended, modifying the DDA Obligations (the
"Second Amendment," together with the Original DDA under the Second Amendment,
the obligation to provide the Office Space and Trolley Shuttle Station was removed and
in its place, Constellation was obligated to provide a condominium unit and two parking
spaces.
On or about October 16, 2007 Constellation obtained a construction loan from United
Commercial Bank and entered into a construction loan agreement to construct the
Project. Pursuant to the Loan Agreement, Constellation entered into a promissory note
with United Commercial Bank, which was secured by a deed of trust recorded on
December 23, 2007. On or about November 6, 2009, United Commercial Bank ceased
to operate and was taken over by the FDIC. East West Bank acquired certain assets of
United Commercial Bank including the Loan from the FDIC.
Constellation and East West agreed to the transfer of Condominium Unit #401 to CDC.
Prior to the receipt of the certificate of Occupancy for the Project, Constellation shall
transfer the Condominium Unit to the CDC pursuant to the grant deed. Upon the
transfer of the Condominium Unit to CDC, East West agrees to release the
Condominium Unit from the Deed of Trust by a partial reconveyance of the Deed of
Trust as to the Condominium Unit only.
Upon the transfer of the Condominium Unit, the CDC acknowledged and agreed that
the DDA Obligations have been fully and finally completed. On 12/19/2011 while the
building was still under construction, East West Bank sold 60 out of 61 condo units in
the Centro building to the Centro Indy, LLC which is owned the Pedcor Companies.
The unit was appraised on 2/12/2016 for $325,000. Staff has come to terms with Centro
Indy, LLC to sell to them the unit at the full market value of $325,000.
1
LEGAL NOTICE
PUBLIC MEETING
ACTIONS BY THE OVERSIGHT BOARDTO THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY
REDEVELOPMENT AGENCY RELATING TO THE TRANSFER OF REAL PROPERTIES TO THE CITY OF NATIONAL CITY TO BE RETAINED FOR GOV-
ERNMENTAL USE AND FUTURE DEVELOPMENT AND ACTIONS RELATING TO THE TRANSFER OF REAL PROPERTY IN THE CITY OF NATIONAL
CITY TO CENTRO INDY, LLC PURSUANT TO A REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
NOTICE IS HEREBY GIVEN that the OVERSIGHT BOARD TO THE SUCCESSOR AGENCYTO THE COMMUNITY DEVELOPMENT COMMISSION AS THE
NATIONAL CITY REDEVELOPMENT AGENCY ("Oversight Board") will hold a public meeting on Wednesday, May 18, 2016, at 3:00 p.m. or soon
thereafter, at City of National City, City Hall Council Chambers, located at 1243 National City Boulevard, National City, CA 91950.The public
meeting is being conducted in accordance with California Health and Safety Code Sections 34181(a) and 34181(f). The public meeting may be
continued from time to time until completed. The public meeting may also be cancelled or set for another time in the future at any time until the
scheduled meeting time.
The purpose of this public meeting is to discuss and consider all of the following items:
• The transfer of the following real properties located in the City of National City, California, from the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency ("Successor Agency") to the City of National City ("City") pursuant to
the State of California Department of Finance approved Long Range Property Management Plan ("LRPMP"), which properties will be retained
by the City for governmental use:
Attachment No. 2
Address
Street
APN
Site Name
1.
No Site Address
Cleveland Ave
559-160-23
Marina Gateway Hotel remnant parcel
2.
No Site Address
Cleveland Ave
559-160-25
Marina Gateway Hotel remnant parcel
3.
No Site Address
Cleveland Ave
559-160-27
Marina Gateway Hotel remnant parcel
4.
No Site Address
Cleveland Ave
559-160-29
Marina Gateway Hotel remnant parcel
S.
No Site Address
Bay Marina Dr.
559-117-19
Marina Gateway Hotel remnant parcel
6.
No Site Address
Cleveland Ave
559-117-21
Marina Gateway Hotel remnant parcel
7.
1808
F Ave
560-232-02
Stein Farm
8.
1808
F Ave
560-232-04
Stein Farm
9.
1808
F Ave
560-232-06
Stein Farm
10.
Adjacent to 1410
Sheryl Ln
557-430-37
Sheryl Lane remnant parcel
11.
921
A Ave
556-472-16
Kimball House
12,
900
W. 23rd St
559-040-43-01
Santa Fe Depot
13.
Adjacent to 1213
E Ave
560-050-13
Kimball Way remnant parcel
14.
Adjacent to 1213
E Ave
560-410-02
Kimball Way Creek
15.
Adjacent to 1213
E Ave
560-410-08
Kimball Way Creek
• The transfer of the following real properties located in the City of National City, California, from the Successor Agency to the City pur uant
to the State of California Department of Finance approved Long Range Property Management Plan, which properties will be retained by the
City for future development:
Address
Street
APN
Site Name
1.
2300
Cleveland Ave
559-117-04
Olson Property
2.
2300
Cleveland Ave
559-117-05
Olson Property
3.
830
23rd St
559-117-06
Olson Property
4.
835
W. 24th St
559-117-07
Olson Property
5.
801
Bay Marina Dr.
559-117-12
Olson Property
6.
921
National City Blvd
556-471-03
Former Education Center
7.
929
National City Blvd
556-471-04
Steamed Bean
8.
130
E. 8th St
556-472-26
H&M Goodies
9.
500
Plaza Blvd
556-560-39
Lamb's Theatre
10.
720
W. 23rd St
559-118-02
ACE Metals
11.
Across street from 3200
National City Blvd.
National City Blvd
562-321-08
RCP
12.
1640
E. Plaza Blvd
557-410-20
Day's Inn
13.
38
W. 11th St
555-114-01
Roosevelt Lot
14.
Adjacent to 1133 Roosevelt
Ave.
Roosevelt Ave.
555-114-04
Roosevelt Parking Lot
15.
1845
E Ave
560-232-05
Stein Farm
16.
1231
McKinley Ave
559-022-05
1231 McKinley
17.
1237
McKinley Ave
559-022-07
1237 McKinley
18.
1239
McKinley Ave
559-022-08
1239 McKinley
• The sale and conveyance of certain real property located in the City of National Ci y, California, with a street address of 45 E. 12th
Street, #401 (APN # 556-554-22-43), from the Successor Agency o Centro Indy, LLC pursuant to a Real Property Purchase and Sale Agreement
and Joint Escrow Instructions in accordance with the State of California Department of Finance approved Long Range Property Management
Plan.
Any and all persons who wish to speak on any issue related to any of the items to be discussed at the public meeting as listed above may appear
at the public meeting and will be afforded an opportunity to speak.
Further information regarding the items to be discussed at the public meeting as listed above or this public meeting may be obtained by contact-
ing Gregory Rose, at (619) 336-4266.
The Successor Agency's LRPMP contains detailed location descriptions for the properties listed and is available for review on the City's website at:
http://www.nationalcityca.gov/Modules/ShowDocument.aspx?documentid=11762.The LRPMP is also available in hardcopy at the office of the
City Clerk (1243 National City Boulevard, National City, CA 91950). 2
REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INTRUCTIONS
by and between
SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION
AS THE NATIONAL CITY REDEVELOPMENT AGENCY, a public entity duly
created and validly existing under the laws of the State of California and successor -in -
interest to the former Community Development Commission as the National City
Redevelopment Agency
and
CENTRO INDY, LLC, an Indiana limited liability company
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Centro Purchase & Sale Agreement v3
3
REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INTRUCTIONS
45 E. 12th Street; #401
National City, California
(APN # 556-554-22-43)
This REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS ("Agreement") is dated as of , 2016, and is
entered into by and between the SUCCESSOR AGENCY TO THE COMMUNITY
DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT
AGENCY, a public entity duly created and validly existing under the laws of the State of
California and successor -in -interest to the former Community Development Commission as
the National City Redevelopment Agency ("Successor Agency" or "Seller"), and CENTRO
INDY, LLC, an Indiana limited liability company ("Buyer"). Seller and Buyer enter into this
Agreement with reference to the following recitals of fact (each, a "Recital"):
RECITALS
A. The Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property
generally consisting of an approximate 901 square foot condominium unit and two (2) parking
spaces located at 45 E. 12th Street; #401 (Assessor's Parcel No. 556-554-22-43) within the City
of National City, County of San Diego, State of California, as specifically described in Section
1 of this Agreement as the "Property"; and
B. Pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and
pursuant to California Health and Safety Code Section 34173, Seller became the successor
agency and successor -in -interest to the Redevelopment Agency, confirmed by Resolution No.
2012-15 adopted on January 10, 2012, by the City Council of the City of National City
("City"); and
C. In accordance with California Health and Safety Code Section 34191.5, the Property
was listed on Seller's Long Range property Management plan ("LRPMP"), which provides that the
Property is to be sold at fair market value, and the LRPMP has been approved by the Oversight Board
of the Successor Agency to the Community Development Commission as the National City
Redevelopment Agency ("Oversight Board") and the California Department of Finance; and
D. Buyer has made an offer to purchase the Property from Seller at the Property's current
"as is" fair market value, and Seller desires to sell the Property to Buyer pursuant to the terms and
conditions of this Agreement.
Page 2 of 29
Centro Purchase & Sale Agreement v3
4
AGREEMViEN F.
,i
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND COVENANTS
OF SELLER AND BUYER SET FORTH IN THIS, AGREEMENT AND OTHER GOOD AND
VALUABLE CONSIDERATION, SELLER AND BUYER AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 Definitions. The following words, terms and phrases are used in this Agreement
with the following meanings, unless the particular context or usage of a word, term or phrase
requires another interpretation:
1.1.1 Affiliate. (1) any Person directly or indirectly controlling, controlled by
or under common control with another Person; (2) any Person owning or controlling ten percent
(10%) or more of the outstanding voting securities of such other Person; or (3) if that other
Person is an officer, director, member or partner, any company for which such Person acts in
any such capacity. The term "control" as used in the immediately preceding sentence, means the
power to direct the management or the power to pontrol .election of the board of directors. It
shall be a presumption that control with reSpect io a corporation or limited liability company is
the right to exercise or control, directly or indirectly, more than fifty percent (50%) of the voting
rights attributable to the controlled corporation or limited liability company, and, with respect to
any individual, partnership, trust, other entity or association, control is the possession, indirectly
or directly, of the power to direct or cause the direction of the management or policies of the
controlled entity. It shall also be a presumption that the manager of a limited liability company
controls such limited liability company.
1.1.2 Agreement. This Real Property Purchase and Sale Agreement and Joint
Escrow Instructions by and between Seller and Buyer, 1including,all of the attached Exhibits.
1.1.3 Approval.. Any approval, consent, certificate, ruling, authorization, or
amendment to any of the foregoing, as shall be necessary or appropriate wider any Law to complete the
purchase and sale of the Property.
1.1.4 Bankruptcy Law. Title 11 of the United State Code or any other or successor
State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee,
bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters.
1.1.5 Bankruptcy Proceeding::; ding, whether voluntary or involuntary,
under any Bankruptcy Law.
1.1.6 Business Day. Any weekday on which the Seller is open to conduct
regular governmental functions.
1.1.7 Buyer. Centro Indy, LLC, an Indiana limited liability company, and any
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Centro Purchase & Sale Agreement v3
5
assignee of or successor to the rights, powers, or responsibilities of Buyer under this Agreement.
1.1.8 Buyer Title Policy. A standard CLTA owners' policy of title insurance
issued by the Title Company, with coverage in the amount of the Purchase Price, showing title to the
Property vested in Buyer, subject to Permitted Exceptions.
1.1.9 CEQA. The California Environmental Quality Act, Public Resources Code
Section 21000, et seq. and implementing regulations contail in Title 14, Chapter 3, Section 15000, et seq. of
the California Code of Regulations:
1.1.10 CEQA Documents. Any exemption detezmination, any Negative Declaration
(mitigated or otherwise) or any Environmental Impact Report (mcluding any addendum or amendment to, or
subsequent or supplemental Environmental Impact Report) required or permitted by any Government, pursuant
to CEQA, to issue any discretionary Approval required to approve this Agreement
1.1.11 City. The City of National City, a California municipal corporation.
1.1.12 Claim. Any claim, loss, cost, damage, expense, liability, lien, action,
cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge,
award, assessment, fine or penalty of any kind (including consultant and expert fees and
expenses and investigation costs of whatever kind or nature and, if an Indemnitor improperly
fails to provide a defense for an Indemnitee, then Legal Costs of the Indemnitee) and any
judgment.
1.1.13 Close of Escrow. The first date on which the Escrow Agent has filed
the Grant Deed with the County for recording in the official records of the County.
1.1.14 Control. Possession, directlyor indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether by ownership or Equity
Interests, by contract or otherwise.
1.1.15 County. The County of San Diego, California.
1.1.16 Default. An Escrow Default, a Monetary Default, or a Non -Monetary
1.1.17 Default Interest. Interest at an annual rate equal to the lesser of (a) eight
percent (8%) per annum; or (b) the Usury Limit.
1.1.18 Deposit. 1 'Twee Thousand 'two Hundred Fifty and No/100 DOLLARS
Default.
($3,250).
1.1.19 Effective Date. Defined in Section 2 of this Agreement.
1.1.20 Environmental Claim. Any and all claims, demands, damages, losses,
liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs,
disbursements or expenses, including Legal Costs and fees and costs of environmental consultants and other
experts, and all foreseeable and unforeseeable damages.or costs of any kind or of any nature whatsoever,
Page 4 of 29
Centro Purchase & Sale Agreement v3
6
directly or indirectly, relating to or arising from any actual or alleged violation of any Environmental Law
or Hazardous Substance Discharge.
1.1.22 Environmental Laws. All Federal, State, local (including City) laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, or requirements of any Government authority, now
in effect or enacted after the Effective .Date of this Agreement, regulating, relating to, or imposing liability
or standards of conduct concerning any Hazardous Substance, the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use or pertaining to
occupational health or industrial hygiene or occupational or environmental conditions on, under or about
the Property, as now or may at any later time be in effect, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA") [42 U.S.C. § 9601 etseq.];
the Resource Conservation and Recovery Act of 1976 ("RCRA") [42 U.S.C. § 6901 et seq.];
the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33
U.S.C, § 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 U.S.C. § 2601 et seq.];
the Hazardous Materials Transportation Act.("HMTA") [49 U.S.C. § 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 U.S.C. § 6901 etseq.]; the Clean Air Act [42 U.S.C. § 7401 etseq.];
the Safe Drinking Water Act [42 U.S.C. § 300f et seq.]; the Solid Waste Disposal Act [42 U.S.C.
§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C. § 101 et seq.]; the
Emergency Planning and Community Right to Know Act [42 U.S.C. § 11001 et seq.]; the
Occupational Safety and Health Act [29 U.S.C. §§ 655 and 657]; the California Underground
Storage of Hazardous Substances Act [California Health and Safety Code § 25300 et seq.]; the
California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code
§ 24249.5 et seq.]; or the Porter -Cologne Water Quality Act [California Water Code § 13000 et
seq.]; together with any regulations promulgated under the authorities referenced in this Section.
1.123 Equity Interest. All or any part of any direct equity or ownership
interest(s) (whether stock, partnership interest, beneficial interest in a trust, membership interest in
a limited liability company, or other interest of an ownership or equity nature) in any entity, at any
tier of ownership, that directly owns or holds any ownership or equity interest in a Person.
1.124 Escrow. An escrow, as defined in California Civil Code Section 1057
and California Financial Code Section 17003(a), that is conducted by the Escrow Agent with
respect to the sale of the Property from Seller to Buyer pursuant to this Agreement.
1.1.25 Escrow Agent. Carla Burchard; Stewart Title of California, Inc., or such
other Person mutually agreed upon in writing by both Seller and Buyer.
1.126 Escrow Closing Date. The earlier of: (a) on or before the fifth (5°)
Business Day following the Escrow Agent's receipt of written confirmation from both Seller
and Buyer of the satisfaction or waiver of all conditions precedent to the CIose of Escrow; (b)
the date that is sixty (60) calendar days following the Escrow Opening Date; or (c) another date
mutually agreed upon in writing between the Parties for the Close of Escrow.
1.127 Escrow Closing Statement,A statement' prepared by the Escrow Agent
indicating, among other things, the Escrow Agent's estimate of all funds to be deposited or
received by Seller or Buyer, respectively, and all charges to be paid by Seller or Buyer,
respectively, through the Escrow.
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Centro Purchase & Sale Agreement v3
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1.1.28 Escrow Default. The unexcused failure of a Party to submit any
document or funds to the Escrow Agent as reasonably necessary to close the Escrow, pursuant to
the terms and conditions of this Agreement.
1.129 Escrow Opening Date. The first date on which a copy of this
Agreement, signed by both Seller and Buyer, is deposited with the Escrow Agent, as provided in
Section 3.1 of this Agreement.
1.1.30 Event of Default. The occurrence of any one or more of the following:
(a) Monetary Default. A Monetary Default that continues for fifteen
(15) calendar days after Notice to the Party in Default, specifying in reasonable detail the amount
of money not paid and the nature and calculation of each such amount or the bond, surety, or
insurance not provided;
(b) Escrow Closing Default. An Escrow Default that continues for seven
(7) calendar days after Notice to the Party in Default, specifying in reasonable detail the
document or funds not submitted to the Escrow Agent;
(c) Bankruptcy or Insolvency. Buyer admits in writing that Buyer is unable
to pay Buyer's debts as they become "due or Buyer becomes subject to any Bankruptcy Proceeding, or a
custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure
is made with respect to, substantially all of Buyer's assets or Buyer's interest in this Agreement or the
Property;
(d) Transfer. 'lhe occurrence of a Transfer, whether voluntarily or
involuntarily or by operation of Law, in violation of the terms or conditions or this Agreement;
(e) Non -Monetary Default. Any Non -Monetary Default, other than
those specifically addressed in Subsections(c) or,(d.)°aboye, that is not cured within fifteen (15)
calendar days after Notice to the Party in Default describing the Non -Monetary Default in
reasonable detail. In the case of Such a Non -Monetary Default that cannot with reasonable
diligence be cured within fifteen (15) calendar days after the effective date of such Notice, an Event
of Default shall occur, if the Party in Default does not do all of the following: (a) within fifteen
(15) calendar days after Notice of such Non -Monetary Default, advise the other Party of the
intention of the Party in Default to take all reasonable steps to cure such Non -Monetary Default;
(b) duly commence such cure within such fifteen (15) calendar day period; and (c) diligently
prosecute such cure to completion within a reasonable time under the circumstances.
1.1.31 Executive Director. The Executive Director of Seller or his or her designee or
successor in function. .
1.1.32 Federal. The federal government of the United States of America.
1.1.33 FIRPTA Affidavit. A certification that Seller is not a "foreign person"
within the meaning of such term under Section 1445 of the United States Internal Revenue Code.
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Centro Purchase & Sale Agreement v3
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1.1.34 Form 593. A California Franchise Tax Board Form 593-C.
1.135 Government. Any and all courts, boards, agencies, commissions,
offices, or authorities of any nature whatsoever of any governmental unit (Federal, State, County,
district, municipal, City or otherwise) whether now or later in existence. It is acknowledged
that Seller and the City are forms of Government.
1.1.36 Grant Deed, A grant deed conveying Seller's interest in the Property
from Seller to Buyer, at the Close of Escrow, substantially in the form of Exhibit "B" attached to
this Agreement and incorporated herein by this reference.
1.1.37 Hazardous Substance. Any flammable substance, explosive,
radioactive material, asbestos, asbestos -containing material, polychlorinated biphenyl, chemical
known to cause cancer or reproductive toxicity, pollutant, contaminant, hazardous waste,
medical wastes, toxic substance or related material, petroleum, petroleum product and any
"hazardous" or "toxic" material, substance or waste thatis defined by those or similar terms or is
regulated as such under any Law, including any material, substance or waste that is: (a) defined
as a "hazardous substance" under Section 311 of the Water Pollution Control Act (33 U.S.C. §
1317), as amended; (b) designated as "hazardous substances" pursuant to 33 U.S.C. § 1321; (c)
defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. § 6901 et seq., as amended; (d) defined as a "hazardous substance" or
"hazardous waste" under Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act
of 1986, 42 U.S.C. § 9601 et seq., or any so-called "superfund" or "superlien" law; (e) defined
as a "pollutant" or "contaminant" under 42 U:S.C..§ 9601.(33); (f) defined as "hazardous waste"
d under 40 C.F.R. Part 260; (g) defineas a "hazardous chemical" under 29 C.F.R. Part 1910; (h)
any matter within the definition of "hazardous substance" set forth in 15 U.S.C. § 1262; (i) any
matter, waste or substance regulated under the Toxic Substances Control Act ("TSCA") [15
U.S.C. Sections 2601 et seq.]; (j) any matter, waste or substance regulated under the Hazardous
Materials Transportation Act, 49 U,S.C. Sections 1801 et seq.; (k) those substances listed in the
United States Department of Transportation (DOT) Table [49 C.F.R. 172.101]; (1) any matter,
waste or substances designated by the EPA, or any successor authority, as a hazardous substance
[40 C.F.R. Part 302]; (m) defined as "hazardous waste" in Section 25117 of the California Health
and Safety Code; (n) defined as a "hazardous substance" in Section 25316 of the California Health
and Safety Code; (o) subject to any other Law regilating, relating to or imposing obligations,
liability or standards of conduct edricerhing protection of human health, plant life, animal life,
natural resources, property or the enjoyment of life or property free from the presence in the
environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (p)
that is or becomes regulated or classified as hazardous or toxic under Law or in the regulations
adopted pursuant to Law.
1.1.38 Hazardous Substance Discharge. Any deposit, discharge, generation,
release or spill of a Hazardous Substance that occurs at, on, under, into or from the Property, or
during transportation of any Hazardous Substance to. or from the Property, or that arises at any
time from any construction, installation, use or operation or other activities conducted at, on,
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Centro Purchase & Sale Agreement v3
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under or from the Premises, whether or not caused by a Party.
1.1.39 Indemnify. Where this Agreement states :that .any Indemnitor shall
"indemnify" any Indemnitee from, against, or for a partioular' Claim, that the Indemnitor shall
indemnify the Indemnitee and protect, defend and hdld the Indemnitee harmless from and against
such Claim (alleged or otherwise). "Indemnified" shall have the correlative meaning.
1.1.40 Indemnitee. Any Person entitled to be Indemnified under the terms of
this Agreement.
1.1.41 Indemnitor. A Party that agrees to Indemnify any other Person under
the terms of this Agreement.
1.1.42 Law. Every :law,,ordinanee,.,.requirement, order, proclamation, directive,
rule or regulation of any Government applicable to the Property, in any way, including relating to
any development, construction, use, maintenance, taxation, operation, occupancy of or
environmental conditions affecting the Property or otherwise relating to this Agreement or any
Party's rights, obligations or remedies under this Agreement, or any Transfer of any of the
foregoing, whether in force on the Effective Date or passed, enacted, modified, amended or
imposed at some later time, subject in all cases, however, to any applicable waiver, variance
or exemption.
1.1.43 Legal Costs. In reference to ,any, Pexson1l reasonable costs and
expenses such Person incurs in any; legal proceeding or Other matter for which such Person is
entitled to be reimbursed for its Legal Costs; including reasonable attorneys' fees, court costs and
expenses and consultant and expert witness fees and expenses.
1.1.44 Lender. The holder of any Security Instrument and the successors and assigns
of such holder.
1.1.45 LRPMP. The Long Range Property Management Plan prepared by Seller
and approved by the Oversight Board of the Successor Agency to the Community Development
Commission as the National City Redevelopment Agency and the California Department of
Finance, in accordance with California 1=iealth end' Safety Code Section 34191.5.
1.1.46 Monetary Default. Any failure by either Party to pay or deposit, when
and as this Agreement requires, any amount of money, bond, surety or evidence of any insurance
coverage required to be provided under this Agreement, whether to or with a Party or a Third
Person.
1.1.47 Non -Monetary Default. The occurrence of any of the following, except
to the extent constituting a Monetary Default or an:Escr'ow Default:'(a).,any failure of a Party to
perform any of such Party's obligations under this, Agreement, (b) any failure of a Party to
comply with any material restriction! or prohibition in this Agreement; or (c) any other event or
circumstance that, with passage of time or giving of Notice, or both, would constitute a breach of
this Agreement by a Party.
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1.1.48 Notice. Any consent, demand, designation, election, notice, or request
relating to this Agreement, includirig:any Notice ofDofault. All Notices must be in writing.
1.1.49 Notice of Default. Any Notice claiming or giving Notice of a Default.
1.1.50 Notify. To give a Notice.
1.1.51 Oversight Board. The Oversight Board of the Successor Agency to the
Community Development Commission as the National City Redevelopment Agency established
pursuant to California Health and Safety Code Section 34179(h).
1.1.52 Parties. (Oilectively, 'Seller and Buyer.
1.1.53 Party. Individually, either Seller or Buyer, as applicable.
1.1.54 Permitted Exception. All of the following: (a) all items shown in the
Preliminary Report as exceptions to coverage under the proposed Buyer Title Policy; (b) any lien for
non -delinquent property taxes or assessments; (c) any Laws applicable to the Property; (d) this
Agreement; (e) any existing improvements on the Property; (f) any Approval; (g) any other
document or encumbrance expressly. required or allowed to be recorded against the Property
pursuant to the terms of this Agreement; and '(h); all covenants, conditions, restrictions,
reservations, rights, rights of way, easements, encumbrances, liens and other matters of record
or that would be disclosed by an accurate inspection or survey of the Property.
1.1.55 Person. Any association, corporation, governmental entity or agency,
individual, joint venture, joint-stock company, limited liability company, partnership, trust,
unincorporated organization or other entity of any kind.
1.1.56 Preliminary Report. A preliminary report issued by the Title Company
in contemplation of the issuance of the Buyer Title Policy, accompanied by the best available
copies of all documents listed in the preliminary report as exceptions to coverage under the proposed
Buyer Title Policy.
1.1.57 Property. That certain real property specifically described in Exhibit
"A" attached to this Agreement and incorporated herein by this reference.
1.158 Purchase Price. Three Hundred Twenty -Five Thousand Dollars and
No/100 DOLLARS ($325,000), which is the "as -is" fair market value of the fee simple interest
estate of the Property as of January 20, 2016, pursuant to that certain appraisal report conducted
by David Paine of Paine & Associates.
1.1.59 Real Estate Taxes. All general and special real estate taxes (including
taxes on fixtures and equipment, sales taxes, use taxes and the like), supplemental taxes,
possessory interest taxes, special taxes imposed pursuant to a special taxing district, assessments,
municipal water and sewer rents, rates and charges, excises, levies, license and permit fees, fines,
penalties and other governmental charges and any interest or costs with respect thereto, general
and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or nature
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whatsoever regarding the Property that may be assessed, levied, imposed upon, or become due
and payable out of or in respect of, or charged with respect to or become a lien on, the Property.
1.1.60 Seller. The Successor Agency to the Community Development
Commission as the National City Redevelopment Agency, a public entity duly created and validly
existing under the laws of the State of California and successor -in -interest to the former
Community Development Commission as the National City Redevelopment Agency.
1.1.61 Seller Parties. Collectively, the Seller, the Seller's governing body, and the
Seller's elected officials, employees, agents and attorneys.
1.1.62 State. The State of California.
1.1.63 Third Person. Any Person that is not a.Party, an Affiliate of a Party or
an elected official, officer, director, manager, shareholder, member, principal, partner, employee
or agent of a Party.
1.1.64 Title Company. Stewart Title of California, Inc., or such other Person
mutually agreed upon in writing by both Seller and Buyer.
1.1.65 Transfer. Regarding any property, right or obligation, any of the following,
whether by operation of Law or otherwise, whether voluntary or involuntary, and whether direct or indirect
(a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether
direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable
interest or estate in such property, right or obligation or any part of it (including the grant of any easement,
lien, or other encumbrance); (b) any conversion, othhange, issuance, modification, mallocation, sale, or other
transfer of any Equity Interest(s) in the t vner of such property, right or obligation by the holders of such
Equity Interest(s); or (c) any transaction that is in substance equivalent to any of the foregoing. A transaction
affecting Equity Interests, as referred to in clauses (b) or (c) above of this Section, shall be deemed a Transfer
by Buyer, even though Buyer is not technically the transferor. A "Transfer" shall not, however, include any
of the following (provided that the other Party has received Notice of such occurrence) relating to the Property
or any Equity Interest: (i) a mere change in the form of ownership with no material change in beneficial
ownership and constitutes a tax -fire transaction under Federal income tax law and the State real estate transfer
tax law, (ii) a conveyance only to member(s) of the immediate family(ies) of the transferors) or trusts for
their benefit; or (iii) a conveyance only to a Person that, as of the Effective Date; holds an Equity Interest in
the entity whose Equity Interest is being transferred.
1.1.66 Unavoidable Delay. A delay in either Party performing any obligation
under this Agreement arising from or on account of any cause whatsoever beyond the Party's
reasonable control, including strikes, labor troubles or other union activities, casualty, war, acts
of terrorism, riots, litigation, governmental action or inaction, regional natural disasters or
inability to obtain required materials. Unavoidable Delay shall not include delay caused by a
Party's financial condition or insolvency.
1.1.67 Usury Limit. The highest rate of interest, if any, that Law allows under
the circumstances.
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2. EFFECTIVE DATE
This Agreement shall become effective on the first date oA,;whichall• of the following have
occurred ("Effective Date'): (a) Seller. has received three (3) counterpart originals of this Agreement
signed by the authorized representative(s) of Buyer; (b) this Agreement has been approved by Seller's
governing body and executed by Seller's Executive Director, (c) this Agreement, including the purchase
and sale of the Property pursuant to this Agreement, has been approved by the Oversight Board; and (d)
this Agreement, including the purchase and sale of the Property pursuant to this Agreement, as
approved by the Oversight Board, has been approved by the California Department of Finance or
the California Department of Finance has failed to request review of such action within the
timeframes set forth in California Health and Safety Code Sections 34179(h) and 34181(f) or the
California Department of Finance has provided in writing its election not to review such action as
contemplated in California Health and Safety Code Section 34191.5(f).
•
3. PURCHASE AND SALE OF PREMISES
3.1 Escrow. Seller shall sell and convey fee title to the Property to Buyer and Buyer
shall purchase and acquire fee title to the Property from Seller, subject to the Permitted
Exceptions and the terms and conditions of this Agreement. For the purposes of exchanging
funds and documents to complete the sale of the Property from Seller to Buyer and the purchase
of the Property by Buyer from Seller, pursuant to the terms and conditions of this Agreement,
Seller and Buyer agree to open the Escrow with the Escrow A ent., The, provisions of Section
4 of this Agreement are, and shall constitute, the joint escrowinstructions of the Parties to the
Escrow Agent for conductingthe Escrow.
3.2 Consideration. Buyer shall purchase the Property from Seller for the Purchase
Price, subject to the terms and conditions of this Agreement. Buyer shall deposit the Purchase
Price into the Escrow, as follows:
3.2.1 Deposit. Upon the Escrow Opening Date, Buyer shall deposit the
Deposit into the Escrow. The Deposit shall be non-refundable unless this Agreement is
thereafter terminated due to a Seller default, the. failure of a Buyer's condition to Close of
Escrow, a termination of this Agreement not due to` Buyer's default, or as otherwise expressly
provided in this Agreement. The Deposit shall be held in Escrow until the Close of Escrow
and shall be applied to the Purchase Price.
3.2.2 Remaining Purchase Price. At lease one (1) Business Day before the
Escrow Closing Date, Buyer shall deposit into the Escrow the amount of the Purchase Price
less the amount of the Deposit.
3.3 Buyer's Approval of Title to Property. Buyer acknowledges and agrees that it
has received the Preliminary Report for the Pro and has approVed the status of title to the
Property.
3.4 "AS -IS" Acquisition. The Close of Escrow shall evidence Buyer's
unconditional and irrevocable acceptance of the Property in the Property's AS IS, WHERE IS,
SUBJECT TO ALL FAULTS CONDITION, AS OF THE CLOSE OF ESCROW, WITHOUT
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WARRANTY as to character, quality, perfonriahce, condition, title, physical condition, soil
conditions, the presence or absence of fill, shoring or bluff stability or support, subsurface or
lateral support, zoning, land use restrictions, the availability or location of utilities or services,
the location of any public infrastructure on or off of the Property (active, inactive or
abandoned), the suitability of the Property or the existence or absence of Hazardous Substances
affecting the Property and with full knowledge of the physical condition of the Property, the
nature of Seller's interest in and use of the Property, all laws applicable to the Property and
any and all conditions, covenants, restrictions, encumbrances, and all matters of record relating
to the Property. The Close of Escrow shall .,fu'ther eonstitte Buyer's representation and
warranty to Seller that: (a) Buyer has had ample. opportunity to inspect and evaluate the
Property and the feasibility of the uses and activities Buyer is entitled to conduct on the
Property; (b) Buyer is relying entirely on Buyer's experience, expertise and Buyer's own
inspection of the Property in the Property's current state in proceeding with acquisition of the
Property; (c) Buyer accepts the Property in the Property's present condition; (d) to the extent
that Buyer's own expertise with respect to any matter regarding the Property is insufficient to
enable Buyer to reach an informed conclusion regarding such matter, Buyer has engaged the
services of Persons qualified to advise Buyer with respect to such matters; (e) Buyer has
received assurances acceptable to Buyer by means, independent of Seller or Seller's agents of
the truth of all facts material to Buyer's acquisition of the Property pursuant to this Agreement;
and (f) the Property is being acquired by: Buyer as a result of Buyer's own knowledge,
inspection and investigation of the Property and not as a result of any representation made by
Seller or Seller's agents relating to the condition of the Property, unless such statement or
representation is expressly and specifically set forth in this Agreement. Seller hereby expressly and
specifically disclaims any express or implied warranties regarding the Property.
3.5 Reservations. The approval of this Agreement by Seller shall not be binding on
the City Council of the City or any commission, committee, board or body of the City regarding
any other Approvals required by such bodies. No action by, Seller with reference to this
Agreement or any related documents shall be eeued tip cons'itute issuance or waiver of any
required Approvals regarding the Property or buyer.
3.6 Non -Discrimination.
3.6.1 Buyer herein covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
be no discrimination against or segregation of any person or group of persons, on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those
bases are defined in Sections 12926,12926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section,12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall Buyer itself, or any
person claiming under or through Buyer, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the Property. The
foregoing covenants shall run with the land.
3.6.2 Buyer herein further covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through Buyer, that there shall
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be no discrimination on the basis of race, gender, religion, national origin, ethnicity, sexual
orientation, age or disability in the solicitation, selection, hiring or treatment of any contractors
or consultants, to participate in subcontracting/subconsulting opportunities.
3.6.3 Buyer understands and agrees that violation of any Subsection of this
Section 3.6 shall be considered :a material breach of this Agreement and may result in
termination, debarment or other sanctions.
3.7 Form of Nondiscrimination and Nonsegregation Clauses. All deeds, leases or
contracts made relative to the Property, improvements thereon, or any part thereof, shall
contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
3.7.1 (a) (1) In deeds: -"The grantee. hereincovenants by and for
himself or herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under
or through him or her, establish or permit any practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall also apply to the above paragraph.
3.7.2 (a) (1) In .leases:"ithe, lessee herein covenants by and for
himself or herself, his or her heirs`, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon and subject to
the following conditions: That there shall be no discrimination against or segregation of any
person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955,2
of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the, : selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased."
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(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in
Section 129559 of the Government Code, With respect to familial status, nothing in paragraph
(1) shall be construed to affect Sections 51.2, 51.3', 51.4, 51.10, 51.11, and 799.5 of the Civil
Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360
of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code
shall apply to the above paragraph.
3.7.3 In contracts: "There shall be no discrimination against or segregation
of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2
of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the Property, nor shall the 'grantee or transferee itself or any person claiming
under or through him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sublessees, subtenants, or vendees of the Property."
3.8 Effect and Duration of Covenants. The covenants established in this Agreement
shall run with the land, without regard to technical classification and designation, and shall be
for the benefit and in favor of and enforceable against the original Buyer, or if the Buyer is no
longer the owner, then against its successors in interest, assigns and heirs. Unless set forth
otherwise, the covenants described in Section 3.7'shall •eomMence upon the Close of Escrow
and shall be set forth and shall.run for the time per/°ods set forth in the applicable Grant Deed.
4. JOINT ESCROW INSTRUCTIONS
4.1 Opening of Escrow. The purchase and sale of the Property shall take place
through the Escrow to be conducted by Escrow Agent. Escrow shall be deemed opened when
a fully signed copy of this Agreement has been delivered to Escrow Agent. Escrow Agent shall
confirm the Escrow Opening Date in writing to each of the Parties, with a copy of the Escrow
Agent Consent signed by the authorized representative(s) of the Escrow Agent.
4.2 Escrow Instructions_: This Section.4 constitutes the joint escrow instructions of
the Parties to Escrow Agent for conduct of the Escrow for the purchase and sale of the Property,
as contemplated by this Agreement. Buyer and Seller shall sign such further escrow instructions
consistent with the provisions of this Agreement as may be reasonably requested by Escrow
Agent. In the event of any conflict between the provisions of this Agreement and any further
escrow instructions requested by Escrow Agent, the provisions of this Agreement shall control.
4.3 Escrow Agent Authority. Seller and Buyer authorize Escrow Agent to:
4.3.1 Charges. Pay' and charge ,Seller` and Buer for 'their respective shares of
the applicable fees, taxes, charges.. and coats payable by either Seller or Buyer regarding the
Escrow;
4.3.2 Settlement/Closing Statements. Release each Party's Escrow Closing
Statement to the other Party;
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4.3.3 Document Recording. File any documents delivered for recording
through the Escrow with the office of the Recorder of the County for recordation in the official
records of the County, pursuant to the joint instructions of the Parties; and
4.3.4 Counterpart Documents. t)tili e docuiraents signed by Seller or Buyer
in counterparts, including attaching separate signature pages; to. ,one -original of the same
document. s . :►
4.4 Buyer's Conditions Precedent to Close of Escrow. Provided that the failure of
any such condition to be satisfied is not due to a Default under this Agreement by Buyer, Buyer's
obligation to purchase the Property from Seller on the Escrow Closing Date shall be conditioned
upon the satisfaction or waiver (waivers must be in writing and signed by Buyer) of each of the
following conditions on or before the Escrow Closing Date:
4.4.1 Title Policy. Title Company has agreed to issue the Buyer Title Policy
to Buyer upon payment of Title Company's premium for such policy;
4.4.2 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.4.3 Seller Escrow Deposits. Seller deposits all of the items into Escrow
required by Section 4.7 of this Agreement;
4.4.4 Settlement/Closing Statement. Buyer.. reasonably approves Buyer's
Escrow Closing Statement; and
4.4,5 Seller Prc�.Closing Obligations. Seller performs all of Seller's material
obligations required to be performed by Seller pursuant to this Agreement prior to the Close of
Escrow.
4.5 SeIler's Conditions Precedent to Close of Escrow. Provided that the failure of any
such condition to be satisfied is not due to a Default under this Agreement by Seller, Seller's
obligation to sell the Property to Buyer on the Escrow Closing Date Shall be conditioned upon
the satisfaction or waiver (waivers must be in writing and signed by Seller) of each of the
following conditions precedent on or before the Escrow Closing Date:
4.5.1 CEQA Documents. Adoption, approval or certification of the CEQA
Documents by each applicable Government;
4.5.2 Buyer Escrow Deposits. Buyer deposits all of the items into Escrow
required by Section 4.6 of this Agreement;
4.5.3 Settlement/Closing Statement. Seller reasonably approves Seller's
Escrow Closing Statement; and
4.5.4 Title Policy. The•Compan has 'agreed to issue the Buyer Title Policy
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to Buyer upon payment of Title Company's premium for such policy;
4.5.5 Buyer Pre -Closing Obligations. Buyer performs all of Buyer's material
obligations required to be performed by Buyer pursuant to this Agreement prior to Close of
Escrow.
4.6 Buyer's Escrow Deposits. Buyer shall deposit the following items into Escrow
and, concurrently, provide a copy of each .document`;submitted into Escrow to Seller, at least one
(1) Business Day prior to the Escrow Closing Date:
4.6.1 Closing Funds. All amounts required to be deposited into Escrow by
Buyer under the terms of this Agreement to close the Escrow;
4.6.2 Certificate of Grant Deed Acceptance. The Certificate of Acceptance
attached to the Grant Deed signed by Buyer in recordable form;
4.6.3 Escrow Closing Statement The Buyer's Escrow Closing Statement
signed by the authorized representative(s) of Buycr; and
4.6.4 Other Reasonable Items. Any other documents or funds required to be
delivered by Buyer under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that
have not previously been delivered by Buyer.
4.7 Seller's Escrow Deposits. Seller shall deposit the following documents into
Escrow and, concurrently, provide a copy of each,docu!nent deposited into Escrow to Buyer, at
least one (1) Business Day prior to tbe Escrow Clos`rpgDate:
4.7.1 Grant Deed. The Grant Deed signed by the authorized representative(s) of
Seller in recordable form;
4.7.2 Escrow Closing Statement. The Seller's Escrow Closing Statement
signed by the authorized representative(s) of Seller;
4.7.3 FIRPTA Affidavit. A FIRPTA affidavit signed by the authorized
representative(s) of Seller, in the form used by the.Escrow Agent;
4.7.4 Form 593. A." Form 593' signed 'by the authorized representative(s) of
Seller; and
4.7.5 Other Reasonable Items. Any other documents or funds required to be
delivered by Seller under the terms of this Agreement or as otherwise reasonably requested by
Escrow Agent or Title Company in order to close the Escrow orcomply with applicable Law that
have not been previously delivered by Seller.
4.8 Closing Procedure. When each of Buyer'sEscravivilepositi, as set forth in Section
4.6 of this Agreement, and each. of .Seller's' Escrow .deposits as set forth in Section 4.7 of this
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Agreement, are deposited into Escrow, Escrow Agent shall request confirmation in writing from
both Buyer and Seller that each of their respective conditions precedent to the Close of Escrow,
as set forth in Sections 4.4 and'4.5, respectively, are satisfied or waived. Upon Escrow Agent's
receipt of written confirmation from both Buyer and Seller that each of their respective conditions
precedent to the Close of Escrow are satisfied or waived, Escrow Agent shall close the Escrow by
doing all of the following:
4.8.1 Recording and Distribution of Documents. Escrow Agent shall cause
the following documents to be filed with the Recorder of the County for recording in the official
records of the County regarding the Property in the following order of priority at Close of
Escrow: (a) the Grant Deed; and (b) any other documents to bee,iecorded regarding the Property
through the Escrow upon the joint instructions of the Parties. At Close of Escrow, Escrow Agent
shall deliver conformed copies of all documents filed for recording with in the official records of
the County through the Escrow to Seller, Buyer and any other Person designated in the written joint
escrow instructions of the Parties to receive an original or conformed copy of each such document.
Each conformed copy of a document filed for recording by Escrow Agent pursuant to this
Agreement shall show all recording information. The Parties intend and agree that this Section
4.8.1 shall establish the relative priorities of the documents to be recorded in the official records
of the County through the Escrow, by providing for recordation of senior interests prior to junior
interests, in the order provided in this Section 4.8.1;,
4.8.2 Funds. Distribute all funds :hell by the Escrow Agent pursuant to the
Escrow Closing Statements approved in writing by Seller and Buyer, respectively;
4.8.3 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States
Internal Revenue Service;
4.8.4 Form 593. File the Form 593 with the California Franchise Tax Board;
and
4.8.5 Title Policy. Obtain ;from $ie;.Title Cott pany and deliver to Buyer the
Buyer Title Policy issued by the Title Company, with a'copy delivered to Seller.
4,9 Close of Escrow. The Close of Escrow shall occur on or before the Escrow
Closing Date. The Parties may mutually agree to change the Escrow Closing Date by joint written
instruction to Escrow Agent. The Executive Director in his or her sole and absolute discretion,
acting on behalf of the Seller, is authorized to agree to one or more extensions of the Escrow
Closing Date on behalf of Seller up to a maximum time period extension of ninety (90) days in the
aggregate. If for any reason (other than a Default or Event of Default by such Party) the Close of
Escrow has not occurred on or before the Escrow Closing Date, then any Party not then in Default
under this Agreement may cancel the Escrow and temutiate this Agreement, without liability to
the other Party or any other Person for`such cancellation and termination, by delivering Notice of
termination to both the other Party and Escrow Agent. Following any such Notice of termination
of this Agreement and cancellation of the Escrow, the Parties and Escrow Agent shall proceed
pursuant to Section 4.13 of this Agreement. Without limiting the right of either Party to cancel
the Escrow and terminate this Agreement pursuant to this Section 4.9, if the Escrow does not close
on or before the Escrow Closing Date and neither Party has exercised its contractual right to cancel
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the Escrow and terminate this Agreement under this Section 4.9 before the first date on which
Escrow Agent Notifies both Parties that Escrow is in a position to close in accordance with the
terms and conditions of this Agreement, then the Escrow shall close as soon as reasonably
possible following the first date on which Escrow Agent Notifies both Parties that Escrow is in a
position to close in accordance with the terms and conditions of this Agreement.
4.10 Escrow Costs. Escrow Agent shall Notify Buyer and Seller of the costs to be
borne by each of them at the Close of Escrow by delivering an Escrow Closing Statement to both
Seller and Buyer at least four (4) Btisiness Days priot.to the Escrow Closing Date. Each Party
shall pay its own costs and expenses arising in connection with the Close of Escrow (including,
without limitation, its own attorneys' and advisors' fees, charges, and disbursements), except
the following costs ("Closing Costs"), which shall be allocated between the Parties as follows:
(a) Escrow Agent charges for the conduct of the Escrow shall be paid one-half
(1/2) by Seller and one-half (1/2) by Buyer;
(b) The cost of the Buyer Title Policy attributable to the standard coverage
portion shall be paid by Seller;
(c) The cost of the Buyer Title Policy attributable to the extended coverage
portion or any additional coverage and any endorsements shall be paid by Buyer;
(d) The cost of any and all State, County, or City documentary stamps or
transfer taxes regarding the conveyance of the Property through the Escrow shall be paid by
Buyer;
(e) The cost of any recording fees in connection with the recording of any
documents in the official records of the County,fgr. the Close of Escrow and any and all other
charges, fees, and taxes levied by each and every .Governmerit.relative to the conveyance of the Property
through Escrow shall be paid by Buyer;
(f) Ad valorem taxes and assessments, if any, upon the Property, prior to
the conveyance of title of the Property to Buyer shall be paid by Seller, and after the
conveyance of title of the Property to Buyer shall be paid by Buyer consistent with Section
4.11 of this Agreement; and
(g) All other closing fees and costs shall be charged to and paid by Seller
and Buyer in accordance with customary practices in the County.
4.11 Allocation of Taxes. Real Estate Taxes relating to the Property, if any, shall be
prorated between Seller and Buyer as of Midnight on the date prior to the Close of Escrow.
4.12 Escrow Cancellation Charges. It the Escrow fails to close due to Seller's Default
under this Agreement, Seller shall pay all ordinary and reasonable Escrow and title order
cancellation charges charged by Escrow Agent or Title Company, respectively, If the Escrow
fails to close due to Buyer's Default under .thi s Agreement, Buyer shall pay all ordinary and
reasonable Escrow and title order cancellation charges charged by'Escrow Agent or Title Company,
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respectively. If the Escrow fails to close for any reason other than the Default of either Buyer or
Seller, Buyer and Seller shall each pay one-half (1/2) of any ordinary and reasonable Escrow and
title order cancellation charges charged by Escrow Agent or Title Company, respectively.
4.13 Escrow Cancellation. +If this Agreement is terminated pursuant to a contractual
right granted to a Party in this Agreement to terminate this Agreement (other than due to an
Event of Default by the other Party), the Parties shall do all of the following:
4.13.1 Cancellation Instructions. The Parties shall, within three (3) Business Days
following Escrow Agent's written request, sign any reasonable Escrow cancellation instructions
requested by Escrow Agent;
4.13.2 Return of Funds and Documents. Within ten (10) Business Days
following receipt by the Parties of a: settlement stateinent`of Escrow and title order cancellation
charges from Escrow Agent (i f any) or within twenty (20) calendar days following Notice of
termination, whichever is earlier: (a) Buyer or Escrow Agent shall return to Seller all documents
previously delivered by Seller to Buyer or Escrow Agent, respectively, regarding the Property or the
Escrow; (b) Seller or Escrow Agent shall return to Buyer all documents previously delivered by
Buyer to Seller or Escrow Agent, respectively, regarding the Property or the Escrow; (c) Escrow
Agent shall, unless otherwise expressly provided in this Agreement, return to Buyer all funds
deposited in Escrow by Buyer, less Buyer's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance with Section 4.12 of this Agreement; and (d)
Escrow Agent shall, unless otherwise provided in this Agreement, return to Seller all funds
deposited in Escrow by Seller, less Seller's share of customary and reasonable Escrow and title
order cancellation charges (if any) in accordance witli Section 4.12 of this Agreement.
4.14 Report to IRS. After the Close of Escrow and prior to the last date on which such
report is required to be filed with the Internal Revenue Service under applicable Federal law,
if such report is required pursuant to Internal Revenue Code Section 6045(e), Escrow Agent
shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue
Service on Form 1099-B, W-9 or such other form(s) as may be specified by the Internal
Revenue Service pursuant to Internal Revenue Code Section 6045(e). Concurrently with the
filing of such reporting form with the Internal Revenue Service, Escrow Agent shall deliver a
copy of the filed form to both Seller and tiuyer..
4.15 Condemnation. If any material portion of the Property, or any interest in any
portion of the Property, is taken by condemnation prior to the Close of Escrow by any condemning
authority other than Seller, including, without limitation, the filing of any notice of intended
condemnation or proceedings in the nature of eminent domain, commenced by any governmental
authority, other than Seller, Seller shall immediately give, Buyer Notice of such occurrence, and
Buyer shall have the option, exercisable within ten (10) Business Days after receipt of such Notice
from Seller, to either: (i) terminate this Agreement; or (ii) continue with this Agreement in
accordance with its terms, in which event Seller shall assign to Buyer any right of Seller to receive
any condemnation award attributable: to the Property
5. REMEDIES AND INDEMNITY
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4
Initials of Authorized
Buyer representative(s)
5.1.5 STATEMENT OF INTENT. CALIFORNIA CIVIL CODE SECTION 1542
NOTWITHSTANDING, IT IS THE INTENTTO1 :: OF '.BUYER TO BE BOUND BY THE
LIMITATIONS ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 5.1, AND
BUYER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST SELLER FOR
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE
RELIEF RELATED TO ANY EVENT OF DEFAULT UNDER THIS AGREEMENT BY
SELLER, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.1, WHETHER OR
NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO BUYER AS
OF THE EFFECTIVE DATE OF THIS AGREEMENT.
5.2 LIQUIDATED DAMAGES TO SELLER 'IF THE CLOSE OF ESCROW DOES NOT
OCCUR. ON OR BEFORE THE ESCROW CLOSING DATE DUE TO BUYER'S DEFAULT,
THEN SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE
AMOUNT OF THE DEPOSIT IS THE REASONABLE ESTIMATE BY THE PARTIES OF
THE DAMAGES SELLER WOULD SUFFER FROM SUCH DEFAULT, IT BEING AGREED
THAT IT IS EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE AND IMPRACTICABLE, TO
FIX THE EXACT AMOUNT OF DAMAGE THAT WOULD BE INCURRED BY SELLER
AS A RESULT OF SUCH DEFAULT BY BUYER UPON SUCH A DEFAULT BY BUYER,
ESCROW SHALL BE CANCELED AND THE PARTIES SHALL PROCEED IN
ACCORDANCE WITH SECTION 412 OF THIS AGREEMENT. IN ADDITION, IF ALL OR
ANY PORTION OF THE DEPOSL HAS. BEEN -DEPOSITED INTO ESCROW BY BUYER,
ESCROW AGENT IS HEREBY IRREVOCAB'LY INSTRUCTED BY BUYER AND SELLER TO
DISBURSE THE DEPOSIT TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S
DEFAULT UNDER THIS AGREEMENT AND FAILURE TO COMPLETE THE
PURCHASE OF THE PREMISES, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS
1671, ET. SEQ.
5.3 Legal Actions. Either Party may institute legal action, at law or in equity, to
enforce or interpret the rights or obligations of the Parties under this Agreement or recover
damages, subject to the provisions of Section, 5.1 or's,S:ectiori 5.2 of this Agreement, as applicable.
5.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and
the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by such Party, at the same or different times, of any other rights or remedies for the
same Default or the same rights or remedies for any other Default by the other Party.
5.5 Indemnification.
5.5.1 Buyer Inden nificatign OI liligafions. Buyer shall Indemnify the Seller
Parties against any Claim related to ;his Agreementto the extent such Claim arises from: (a) any
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23
act, omission or negligence of the Buyer; (b) anyagreements thatBuyer (or anyone claiming by or
through Buyer) makes with a Third Person regarding the property;'(c) any worker's compensation
claim or determination relating to': any employee of Buyer or its contractors; or (d) any
Environmental Claim attributable to any action or omission of Buyer.
5.5.2 Independent of Insurance Obligations. Buyer's indemnification
obligations under this Agreement shall not be construed or interpreted as in any way restricting,
limiting, or modifying Buyer's insurance or other obligations under this Agreement. Buyer's
obligation to Indemnify the Seller Parties under this Agreement is independent of Buyer's
insurance and other obligations under this Agreement. Buyer's compliance with Buyer's insurance
obligations and other obligations under this Agreement shall not in any way restrict, limit or modify
Buyer's indemnification obligations; under this ' agreement arid are independent of Buyer's
indemnification and other obligations under this Agreement.
5.5.3 Survival of Indemnification and Defense Obligations. The indemnity
and defense obligations of the Buyer under this Agreement shall survive the expiration or earlier
termination of this Agreement.
5.5.4 Indemnification Procedures. Wherever this Agreement requires any
Indemnitor to Indemnify any Indemnitee:
(a) Prompt Notice. The Indemnitee
Indemnitor of any Claim.
shall promptly Notify the
(b) Selection of Counsel. The Indemnitor shall select counsel reasonably
acceptable to Indemnitee. If the Indemnitee, in good faith, determines that its interests are not
adequately protected by being provided a defense by the Indemnitor, the Indemnitee (and the
other Indemnified parties) may, at its election, conduct the defense or participate in the defense
of any Claim related in any way to this indemnification. If the Indemnitee, on behalf of the
Indemnified parties, makes the foregoing election to conduct its own defense or obtain
independent legal counsel in .dcerise of,any C1airii related to this indemnification, then the
Indemnitor shall pay all of the Legal Costs related thereto, including, without limitation,
reasonable attorneys' fees and costs.
(c) Cooperation. The Indemnitee shall reasonably cooperate with
the Indemnitor's defense of the Indemnitee.
(d) Settlement. The Indemnitor may only settle a Claim with the
consent of the Indemnitee. Any settlement shall procure a complete release of the Indemnitee
from the subject Claims, shall not require the Indemnitee to make any payment to the claimant
and shall provide that neither the Indemnitee, nor the Indemnitar on behalf of the Indemnitee,
admits any liability. ' {
6. GENERAL PROVISIONS
6.1 Incorporation of Recitals. The Recitals of fact set forth preceding this
Agreement are true and correct and are incorporated into this Agreement in their entirety by
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this reference.
6.2 Notices, Demands and Communications Between the Parties.
6.2.1 Delivery. Any and all Notices submitted by any Party to another Party
pursuant to or as required by this Agreement shall be proper, if in writing and sent by messenger
for immediate personal delivery, nationally recognized overnight (one Business Day) delivery
service (i.e., United Parcel Service, Federal Express,'etc:) or lay registered or certified United States
mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated
below in Section 6.2.2. Notice may be sent in the same manner to such other addresses as either
Party may from time to time designate by Notice in accordance with this Section 6.2. Notice shall be
deemed received by the addressee, regardless of whether or when any return receipt is received by
the sender or the date set forth on such return receipt, on the day that the Notice is sent by messenger
for immediate personal delivery, one Business Day after delivery to a nationally recognized
overnight delivery service or three (3) calendar days after the Notice is placed in the United
States mail in accordance with this Section 6.2. Any attorney representing a Party may give any
Notice on behalf of such Party.
6.2.2 Addresses. The Notice addresses for the Parties, as of the Effective Date
of this Agreement, are as follows:
To Buyer:
To Seller:
Centro Indy, LLC
Attn: Andrew Held
770 3rd Avenue S.W.
Carmel, Indiana 46032
Successor Agency to the iominunity Development
Commission.as the National City Redevelopment Agency
1243 National City Boulevard
National City, California 91950
Attention: Executive Director
With a Copy to: Claudia Silva, General Counsel/City Attorney
City of National City
1243 National City Boulevard
National City, California 91950
6.3 Relationship of Parties. The Parties each intend and agree that Seller and Buyer
are independent contracting entities and do not intend by this Agreement to create any
partnership, joint venture or similar business arrangement, relationship or association between
them.
6.4 Warranty Against Payment of Consideration for Agreement. Buyer represents
and warrants to Seller that: (a) Buyer has not employed or retained any Person to solicit or
secure this Agreement upon an agreement or understanding .for a commission, percentage,
brokerage or contingent fee, excepting bona fide employees 'of Buyer and Third Persons to
whom fees are paid for professional services relat :to: fine, datumentation of this Agreement;
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and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given
by Buyer or any of Buyer's agents, employees or representatives to any elected or appointed
official or employee of the Seller in an attempt to secure this Agreement or favorable terms or
conditions for this Agreement. Breach of the representations or warranties of this Section 6.4
shall entitle Seller to terminate this Agreement and cancel the Escrow (if open) upon seven (7)
calendar days Notice to Buyer and, if the Escrow is open, to Escrow Agent. Upon any such
termination of this Agreement, Buyer shall immediately refund any payments made to or on
behalf of Buyer by Seller pursuant to this Agreement or otherwise related to the Property, any
Approval or any CEQA Document, prior to the date of such termination.
6.5 Calculation of Time Periods: Unless otherwise specified, all references to time
periods in this Agreement measured in days shall be to consecutive calendar days, all references
to time periods in this Agreement measured in months shall be to: consecutive calendar months
and all references to time periods in this Agreement measured in years shall be to consecutive
calendar years. Any reference to Business Days in this Agreement shall mean consecutive
Business Days.
6.6 Principles of Interpretation. No inference in favor of or against any Party shall
be drawn from the fact that such Party has drafted any part of this Agreement. The Parties
have both participated substantially in the negotiation, drafting and revision of this Agreement,
with advice from legal or other counsel and advisers of their own selection. A word, term or
phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all
in accordance with ordinary principles of English grammar, which shall govern all language
in this Agreement. The words "include" and "including" in this Agreement shall be construed
to be followed by the words "withoutliniitation"; Each" collective noun in this Agreement shall
be interpreted as if followed by thel Words"(or an part of it)", except where the context clearly
requires otherwise. Every reference 'to any document, including this Agreement, refers to such
document, as modified from time to time (excepting any modification that violates this
Agreement), and includes all exhibits, schedules, addenda and riders to such document. The
word "or" in this Agreement includes the word "and". Every reference to a law, statute,
regulation, order, form or similar governmental requirement refers to each such requirement
as amended, modified, renumbered, superseded or succeeded, from time to time.
6.7 Governing Law. The procedural and subttantivc laws of the State shall govern
the interpretation and enforcement of. this. Agreement; without application of conflicts or choice of
laws principles or statutes. The Parties acknowledge and agree that this Agreement is entered
into, is to be fully performed in and relates to real property located in the County of San Diego,
State of California, All legal actions arising from this Agreement shall be filed in the Superior
Court of the State in and for the County or in the United States District Court with jurisdiction in
the County.
6.8 Unavoidable Delay; Extension of Time of Performance.
6.8.1 Notice. Subject to any specific, provisions of this Agreement stating that
they are not subject to Unavoidable Delay or otherwise' limiting or restricting the effects of an
Unavoidable Delay, performance by either Party under this Agreement shall not be deemed or
considered to be in Default, where any such Default is due to the occurrence of an Unavoidable
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Delay. Any Party claiming an.Unavoidable:Delay,shall!Notif);-the other Party: (a) within three
(3) calendar days after such Party knows of any such Unavoidable Delay; and (b) within three
(3) calendar days after such Unavoidable Delay ceases to exist. To be effective, any Notice of
an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The Party
claiming an extension of time to perform due to an Unavoidable Delay shall exercise
commercially reasonable efforts to cure the condition causing the Unavoidable Delay, within
a reasonable time. The extension of time for performance under this Agreement resulting from
the occurrence of an Unavoidable Delay shall commence on the date of occurrence of the
condition causing the Unavoidable Delay and shall, except for a legal action described in
Section 6.12 of this Agreement, in .no event be longer than ninety (90) calendar days after
written Notice is received by a Patty from the other Party of the occurrence of such an
Unavoidable Delay.
6.8.2 Assumption of Economic Risks. EACH PARTY EXPRESSLY
AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER
PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN
MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC
ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR
ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY
THE PERFORMANCE OF EACH . AND ``BVE ,Y. ONE' OF EACH PARTY'S
OBLIGATIONS AND COVENANTS ARISING' ` UNDER THIS AGREEMENT.
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE
PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN
ECONOMIC CIRCUMSTANCES OR MARKET DEMAND OR CONDITIONS AND
WAIVE, TO THE GREATEST EXTENT ALLOWED BY LAW, ANY DEFENSE, CLAIM,
OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY,
IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION
OF PURPOSE, OR SIMILAR THEORIES. THE PARTIES AGREEE THAT ADVERSE
CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY
OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR
DEMANDS, SHALL NOT OPRATE TO' ' EXCUSE OR DELAY THE STRICT
OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS,
CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES
EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET
CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE EFFECTIVE DATE.
Initials of Authorized
Seller Representative(s)
Initials of Buyer
6.9 Tax Consequences. buyer acknowledges and agrees that Buyer shall bear any
and all responsibility, liability, costs _ or expenses connected in any way with any tax
consequences experienced by Buyer related to this Agreement.
6.10 Real Estate Commissions.
6.10.1 Seller Warranty. Seller: (a) represents and warrants that Seller did not
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27
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Seller; and (b) shall Indemnify Buyer against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.1.
6.10.2 Buyer Warranty. Buyer: (a) represents and warrants that Buyer did not
engage or deal with any broker or finder in connection with this Agreement, and no Person is
entitled to any commission or finder's fee regarding this Agreement on account of any
agreement or arrangement made by Buyer; and (b) shall Indemnify Seller against any breach
of the representation and warranty set forth in Subsection (a) of this Section 6.10.2.
6.11 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied,
is intended to confer any rights or remedies under or by reason of this Agreement on any Person
other than the Parties and their respective permitted successors and assigns, nor is anything in
this Agreement intended to relieve or discharge any obligation of any Third Person to any Party
or give any Third Person any right of subrogation or action over or against any Party.
6.12 Buyer Assumption of Risks of Legal Challenges. Buyer assumes the risk of
delays or damages that may result to Buyer from each and every Third Person legal action
related to Seller's approval of this Agreement or any associated Approvals, even in the event
that an error, omission or abuse of discretion by Seller is determined to have occurred. If a
Third Person files a legal action regarding Seller's approval of this Agreement or any
associated Approvals (exclusive of legal actions alleging violation of Government Code
Section 1090 by officials of Seller), Buyer shall have the option to either: (a) cancel the Escrow
and terminate this Agreement, in which case the Parties and the Escrow Agent shall proceed
in accordance with Section 4.13 of this Agreement; or. (b) Indemnify: Seller against such Third
Person legal action, including all. Legal. Cost4, mon tary'awards, sanctions and the expenses of
any and all financial or performnn e obligations resulting from the disposition of the legal
action; provided, however, that option "(a)" under this Section 6.12 shall only be available to
Buyer prior to the Close of Escrow. Should Buyer fail to Notify Seller of Buyer's election
pursuant to this Section 6.12 at least fifteen (15) calendar days before response to the legal
action is required by Seller, prior to the Close of Escrow, Buyer shall be deemed to have elected
to cancel the Escrow and terminate this Agreement pursuant to this Section 6.12 and, following
the Close of Escrow, Buyer shall be deemed to have elected to Indemnify Seller against such
Third Person legal action pursuant to this Section 6.12, all without further Notice to or action
by either Party. Seller shall reasonably cooperate with Buyer in defense of Seller in any legal
action subject to this Section 6.12, subject to Buyer completely performing Buyer's indemnity
obligations for such legal action. Should Buyer elect or be deemed to elect to Indemnify Seller
regarding a legal action subject to this Section 6.12, but fail to or stop providing such
indemnification of Seller, then Seller shall have the right to terminate this Agreement or cancel
the Escrow (or both) by Notice to Buyer and, if the Escrow is open, to the Escrow Agent.
Nothing contained in this Section 6.12 is intended to be nor shall be deemed or construed to
be an express or implied admission that Seller may be liable to Buyer or any Person for
damages or other relief regarding an alleged or established failure of Seller to comply with the
law. Any legal action that is subject to this Section 6.12.(inelading any appeal periods and the
pendency of any appeals) shall constitute; an Unavoidable »elay and the time periods for
performance by either Party under.this Agreement May be extended pursuant to the provisions
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of this Agreement regarding Unavoidable Delay.
6.13 Successors and. Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
6.14 Time Declared to be of the Essence. As to the performance of any obligation
under this Agreement of which time is a component, the performance of such obligation within
the time specified is of the essence.
6.15 Entire Agreement. This Agreement integrates alll pf, the terms and conditions
mentioned in this Agreement or incidental to this Agieement, and supersedes all prior or
contemporaneous negotiations orvious'agreements between the Parties, whether written or
oral, with respect to all or any portion of the Property.
6.16 Waivers and Amendments. All waivers of the provisions of this Agreement
must be in writing and signed by the authorized representative(s) of the Party making the
waiver. All amendments to this Agreement must be in writing and signed by the authorized
representative(s) of both Seller and Buyer.
6.17 No Implied Waiver. Failure to insist on any one occasion upon strict compliance
with any term, covenant, condition, restriction or agreement contained in this Agreement shall
not be deemed a waiver of such WO, covenant, 'condition, restriction or agreement, nor shall
any waiver or relinquishment of any rights or powers under this Agreement, at any one time
or more times, be deemed a waiver or relinquishment of such right or power at any other time
or times.
6.18 Executive Director Implementation. Seller shall implement this Agreement
through the Executive Director, acting on behalf of the Seller. The Executive Director or
his/her designee is hereby authorized by Seller to enter. into afreements and sign documents
referenced in this Agreement or reasonably requ red t ''implement this Agreement on behalf
of Seller, to issue approvals, interpretations or waivers, and to enter into certain amendments
to this Agreement on behalf of Seller, to the extent that any such action(s) does/do not increase
the monetary obligations of Seller. All other actions shall require the consideration and
approval of the Seller's governing body, unless expressly provided otherwise by action of the
Seller's governing body. Nothing in this Section 6.18 shall restrict the submission to the
Seller's governing body of any matter within the Executive Director's authority under this
Section 6.18, in the Executive Director's sole and absolute discretion, to obtain the Seller's
governing body's express and specific authorization on such matter. The specific intent of this
Section 6.18 is to authorize certain actions on behalf of Seller by the Executive Director, but
not to require that such actions be taken by the., Executive Director including, without
limitation, any extension(s) granted pufinant ta: Section 4.9 of this Agreement, without
consideration by Seller's governing body.
6.19 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
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completely resolved between the Parties, either by written settlement, entry of a non -appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions of
this Agreement relating to dispute resolution, indemnity or limitations on damages or remedies
shall survive any expiration or termination of this Agreement.
6.20 Counterparts. This Agreement shall be signed in three (3) triplicate originals,
each of which is deemed to be an original.
6.21 Facsimile or Electronic Signatures. . Signatures delivered by facsimile or
electronic mail shall be binding as Originals upon tie Party so signing and delivering; provided,
however, that original signatures) of each Party shall be required for each document to be
recorded.
(Signatures on following page]
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SIGNATURE PAGE
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
IN WITNESS WHEREOF, the Parties have signed and entered into this Agreement by and
through the signatures of their respective authorized representative(s) as follows:
"SELLER" `BUYER"
SUCCESSOR AGENCY TO THE CENTRO INDY, LLC, an Indiana limited
COMMUNITY DEVELOPMENT liability company
COMMISSION AS THE NATIONAL CITY *see notes below
REDEVELOPMENT AGENCY, a .,California
public entity
By: By:
Name:
Title: Executive Director Title: President
ATTEST:
Name: Andrew J. Held
r
By: By:
Name: Name:
Title: Secretary Title: G€E)
APPROVED AS TO FORM: *Notes: This document must be executed by the
Corporation's Chief Executive Officer,
President or Vice -President, on the one hand,
By: and the Corporations' Chief Financial Officer,
Name: Claudia Gacitua Silva Treasurer, Assistant Treasurer or Secretary on
Title: General Counsel the other hand.
KANE, BALLMER & BERKMAN
By:
Name:
Title: Special Counsel
Page 29 of 29
Centro Purchase & Sale Agreement v3
31
EXHIBIT "A"
• TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Property Legal Description
The land referred to herein is situated in the State of California, County of San Diego, City
of National City and described as follows:
A Condominium comprised of:
PARCEL 1:
An undivided 1 /61 st 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, as File No. 2010-
0729372 of Official Records.
EXCEPTING THEREFROM, the Association Property and Units 101 through 419,
inclusive, Units 101-104 inclusive; 201=219 inclusive; 301-319 inclusive; 401-419
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, in the
Office of the County Recorder of San Diego County ("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 ("Declaration"), recorded on April 19, 2011, as Instrument No. 2011-0202640, of
the Official Records of San Diego County, California, including any amendments thereto.
PARCEL 2:
Unit No. 401, 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.
EXHIBIT A
Page 1 of2
32
PARCEL 4:
Those certain Exclusive Use Association Property parking spaces shown and designated in
the above -referenced Condominium Plan with the designation "49&50", consisting of
exclusive easements for use thereof appurtenant to Parcels 1 and 2 above, as defined and
described in the Declaration and thq Condominipm'PJan..
PARCEL 5:
Nonexclusive easements for access, ingress, egress, use, enjoyment, drainage,
encroachment, support, maintenance, repairs, and for other purposes, all as described in
the Declaration.
APN: 556-554-22-43
EXHIBIT A
Page 2 of 2
33
EXHIBIT "B"
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS
Grant Deed
[behind this page]
EXHIBIT B
34
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Successor Agency to the
Community Development Commission as the
National City Redevelopment Agency
1243 National City Boulevard
National City, California 91950
Attn: Executive Director
MAIL TAX STATEMENTS TO:
CENTRO INDY, LLC,
an Indiana limited liability company
Attn: Andrew Held
770 3rd Avenue S.W.
Carmel, Indiana 46032
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Assessor's Parcel No. 556-554-22-43
OFFICIAL BUSINESS
Document Exempt from Recording Fees
Per Government Code §§ 6103 & 27383
DOCUMENTARY TRANSFER TAX $
Computed on the consideration or value of property conveyed; OR
Computed on the consideration or value of property conveyed less liens or encumbrances
remaining at time of sale.
Signature of Declarant or Agent determining tax
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE
NATIONAL CITY REDEVELOPMENT AGENCY, a public entity duly created and validly
existing under the laws of the State of California and successor -in -interest to the former
Community Development Commission as the National City Redevelopment Agency, herein
called "Grantor", pursuant to authority provided to Grantor under the Long Range Property
Management Plan ("LRPMP") approved by the California Department of Finance on December
30, 2015 in accordance with Chapter 9 (commencing with Section 34191.1) of Part 1.85 of
Division 24 of the California Health and Safety Code, and acting to carry out the Redevelopment
Plan ("Redevelopment Plan") for the ("Project Area"),
under the Community Redevelopment Law of the State of California, and for other public
purposes, hereby grants to CENTRO INDY, LLC, an Indiana limited liability company, herein
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Centro SA Grant Deed v2
35
called "Grantee", all right, title and interest of Grantor in that certain real property in the City of
National City, County of San Diego, State of California, specifically described in Exhibit "A"
attached hereto ("Property") and incorporated herein by this reference, subject to the existing
easements, restrictions and covenants of record and consistent with the obligations of the Grantee
under the Purchase Agreement (defined below).
Whenever the term "Grantee" is used in this Grant Deed, such term shall include any and
all successors, assigns, and heirs of Grantee in and to the Property, or any interest therein or any
portion thereof.
1. Conveyance in Accordance With LRPMP, Redevelopment Plan, Purchase
Agreement. The Property is conveyed pursuant to the authorization of the approved LRPMP,
and in accordance with and subject to the Redevelopment Plan and that certain Real Property
Purchase and Sale Agreement and Joint Escrow Instructions dated , 20 and
entered into by and between Grantor ("Seller" therein) and Grantee ("Buyer" therein)
("Purchase Agreement"), a copy of which is on file in the offices of the Secretary of Grantor as
a public record and which is incorporated herein by reference. Purchase Agreement as used
herein shall mean, refer to and include the Purchase Agreement, as well as any riders, exhibits,
addenda, implementation agreements, amendments, modifications, supplements and attachments
thereto or other documents expressly incorporated by reference in the Purchase Agreement. Any
capitalized term not herein defined shall have the same meaning ascribed to such term in the
Purchase Agreement. All of the terms, covenants and conditions of this Grant Deed shall be
binding upon the Grantee and the permitted successors and assigns of the Grantee.
2. Nondiscrimination. The Grantee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of any person or group of persons, on account
of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those
bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall the Grantee itself or any
person claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the Property. The foregoing
covenants shall run with the land.
All deeds, leases or contracts made relative to the Property, improvements
thereon, or any part thereof, shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) (1) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein
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Centro SA Grant Deed v2
36
conveyed, nor shall the grantee or any person claiming under or through him or her, establish or
permit any practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the
premises herein conveyed. The foregoing covenants shall run with the land."
(2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall
be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the
Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also
apply to the above paragraph.
(b) (1) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions: That there shall be no discrimination against or segregation of any person or group of
persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code,
in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any person claiming under or through him
or her, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein leased."
(2) Notwithstanding paragraph (1), with respect to familial status,
paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall
be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the
Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to the above paragraph.
(c) In contracts: "There shall be no discrimination against or segregation of
any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment
of the Property, nor shall the grantee or transferee itself or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or occupancy, of tenants, lessees,
sublessees, subtenants, or vendees of the Property."
3. Violations Do Not Impair Liens. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or
render invalid or in any way impair the lien or charge of any mortgage or deed of trust or
security interest made in good faith and for value as to the Property, whether or not said
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Centro SA Grant Deed v2
37
mortgage or deed of trust is subordinated to this Grant Deed; provided, however, that any
subsequent owner of the Property, or any interest therein or any portion thereof, shall be bound
by such remaining covenants, conditions, restrictions, limitations and provisions, whether such
owner's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
4. Covenants Run With Land. All covenants contained in this Grant Deed shall be
covenants running with the land. All of the Grantee's obligations and covenants hereunder shall
remain in effect in perpetuity.
5. Covenants For Benefit of Grantor. All covenants without regard to technical
classification or designation, legal or otherwise, shall be, to the fullest extent permitted by law
and equity, binding for the benefit of the Grantor and its successors and assigns, and such
covenants shall run in favor of, and be enforceable by, the Grantor and its successors and
assigns, against Grantee, its successors and assigns, to or of the Property conveyed herein or any
portion thereof or any interest therein, and any party in possession or occupancy of the Property
or portion thereof, for the entire period during which such covenants shall be in force and effect,
without regard to whether the Grantor is or remains an owner of any land or interest therein to
which such covenants relate. The Grantor and its successors and assigns, in the event of any
breach of any such covenants, shall have the right to exercise all the rights and remedies and to
maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of
such breach.
6. Revisions to Grant Deed. Both the Grantor, its successors and assigns, and the
Grantee and Grantee's successors and assigns in and to all or any part of the fee title to the
Property shall have the right with the mutual written consent of the Grantee and Grantor to
consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, or
restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement
holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or
entity having any interest less than a fee in the Property. The covenants contained in this Grant
Deed, without regard to technical classification, shall not benefit or be enforceable by any owner
of any other real property within or outside the Project Area, or any person or entity having any
interest in any other such realty. No amendment to the Redevelopment Plan shall require the
consent of the Grantee.
7. Administration. Whenever a reference is made in this Grant Deed to an action,
finding, determination or approval to be undertaken by the Grantor, the Executive Director of the
Grantor is authorized to act on behalf of the Successor Agency unless specifically provided
otherwise or the context should require otherwise. Notwithstanding the foregoing, the Executive
Director of the Grantor may in his or her sole and absolute discretion refer any matter to the
Successor Agency's governing body for action, direction or approval.
[Signatures On Next Page]
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Centro SA Grant Deed v2
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IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers hereunto duly authorized this day of
, 2016.
"GRANTOR"
SUCCESSOR AGENCY TO THE COMMUNITY
DEVELOPMENT COMMISSION AS THE
NATIONAL CITY REDEVELOPMENT
AGENCY, a California public entity
By:
Name:
Title: Executive Director
ATTEST:
By:
Name:
Title: Secretary
APPROVED AS TO FORM:
By:
Claudia Gacitua Silva
General Counsel
By:
KANE, BALLMER & BERKMAN
Successor Agency Special Counsel
[Signatures Continue On Next Page]
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Centro SA Grant Deed v2
39
CERTIFICATE OF ACCEPTANCE OF GRANT DEED
This is to certify that the interest in real property conveyed by the SUCCESSOR
AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL
CITY REDEVELOPMENT AGENCY, a public entity duly created and validly existing under
the laws of the State of California and successor -in -interest to the former Community
Development Commission as the National City Redevelopment Agency, to CENTRO INDY,
LLC, an Indiana limited liability company, is hereby accepted by the undersigned officer on
behalf of Grantee, through his or her signature below, subject to all of the matters hereinbefore
set forth, and Grantee consents to recordation thereof by its duly authorized officer.
"GRANTEE"
*see notes below
CENTRO INDY, LLC,
an Indiana limited liability company
Dated: By:
Name: Andrew J. Held
Title: President
Dated: By:
Name:
Title:
*Notes: This document must be executed by the Corporation's Chief Executive Officer,
President or Vice -President, on the one hand, and the Corporations' Chief Financial Officer,
Treasurer, Assistant Treasurer or Secretary on the other hand.
Page 6 of 6
Centro SA Grant Deed v2
40
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
) SS.
COUNTY OF SAN DIEGO
On before me,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Description of Attached Document
Title or Type of Documents:
Number of Pages:
OPTIONAL
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed By Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner - o Limited o General
❑ Individual o Attorney in Fact
❑ Trustee o Guardian or Conservator
❑ Other:
Signer is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner - o Limited o General
❑ Individual o Attorney in Fact
o Trustee o Guardian or Conservator
❑ Other:
Signer is Representing:
41
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
) SS.
COUNTY OF SAN DIEGO
On , before me,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Description of Attached Document
Title or Type of Documents:
Number of Pages:
OPTIONAL
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed By Signer(s)
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
42
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On before me, ,
personally appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Description of Attached Document
Title or Type of Documents:
Number of Pages:
OPTIONAL
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed By Signer(s)
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
Signer's Name:
o Corporate Officer — Title(s):
o Partner - o Limited o General
o Individual o Attorney in Fact
o Trustee o Guardian or Conservator
o Other:
Signer is Representing:
43
EXHIBIT "A"
LEGAL DESCRIPTION
45 E. 12th Street; #401
National City, California
The land referred to herein is situated in the State of California, County of San Diego, City of
National City and described as follows:
A Condominium comprised of:
PARCEL 1:
An undivided 1/61st 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, as File No. 2010-0729372 of
Official Records.
EXCEPTING THEREFROM, the Association Property and Units 101 through 419, inclusive,
Units 101— 104 inclusive; 201-219 inclusive; 301-319 inclusive; 401-419 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, in the Office of the County
Recorder of San Diego County ("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
("Declaration"), recorded on April 19, 2011, as Instrument No. 2011-0202640, of the Official
Records of San Diego County, California, including any amendments thereto.
PARCEL 2:
Unit No. 401, 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.
Exhibit A
Page 1 of 2
44
PARCEL 4:
Those certain Exclusive Use Association Property parking spaces shown and designated in the
above -referenced Condominium Plan with the designation "49&50", 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 other purposes, all as described in the Declaration.
APN: 556-554-22-43
Exhibit A
Page 2 of 2
45
RESOLUTION NO. 2016 —
RESOLUTION OF THE SUCCESSOR AGENCY TO THE COMMUNITY
DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT
AGENCY APPROVING A REAL PROPERTY PURCHASE AND
SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS FOR THE SALE
OF A CONDOMINIUM UNIT LOCATED AT 45 EAST 12TH STREET, NO. 401
IN NATIONAL CITY TO CENTRO .INDY, LLC
WHEREAS, the Community Development Commission as the National City
Redevelopment Agency ("Redevelopment Agency") owned that certain real property generally
consisting of an approximate 901 square foot condominium unit and two (2) parking spaces
located at 45 E. 12th Street; #401 (Assessor's Parcel No. 556-554-22-43) within the City of
National City, County of San Diego, State of California ("Property"); and
WHEREAS, pursuant to California Health and Safety Code Section 34172, the
Redevelopment Agency was dissolved by operation of law as of February 1, 2012, and pursuant
to California Health and Safety Code Section 34173, the Successor Agency to the Community
Development Commission as the National City Redevelopment Agency ("Successor Agency")
became the successor agency and successor -in -interest to the Redevelopment Agency,
confirmed by Resolution No. 2012-15 adopted on January 10, 2012, by the City Council of the
City of National City ("City"); and
WHEREAS, in accordance with California Health and Safety Code Section
34191.5, the Property was listed on Successor Agency's Revised Long Range Property
Management Plan ("LRPMP"), which provides that the Property is to be sold at fair market
value, and the LRPMP has been approved by the Oversight Board of the Successor Agency
("Oversight Board") and the California Department of Finance ("DOF"). The LRPMP provided
that the estimate of current value of the Property was $195,000 based upon an appraisal by the
Arens Group, Inc. dated September 6, 2011; and
WHEREAS, Centro Indy, LLC ("Buyer") has made an offer to purchase the
Property from Successor Agency at the Property's current "as is" fair market value of $325,000,
and Successor Agency desires to sell the Property to Buyer pursuant to the terms and
conditions of a proposed Real Property Purchase and Sale Agreement and Joint Escrow
Instructions ("Agreement"). A copy of the proposed Agreement has been provided to the
Successor Agency and the proposed Agreement will be submitted to the Oversight Board for
review if approved by the Successor Agency; and
WHEREAS, in accordance with the DOF-approved LRPMP, the net proceeds
from the sale of the Property pursuant to the proposed Agreement will be distributed as property
tax to each taxing entity in an amount proportionate to its share of property tax revenues; and
WHEREAS, at its regular meeting on May 17, 2016, the Successor Agency met,
and considered approving the Agreement and the sale of the Property as provided in the
Agreement; and
WHEREAS, a public notice was published in a newspaper of general circulation
on May 6, 2016 providing notification of the public meeting of the Oversight Board on May 18,
2016 in compliance with the requirements of Health and Safety Code Sections 34181(a) and
34181(f); and
Resolution No. 2016 —
Page Two
May 17, 2016
WHEREAS, the transfer of real property is not a "Project" under section 15378 of
the California Environmental Quality Act ("CEQA") Guidelines because the proposed action
consists of administrative activity that will not result in direct or indirect physical changes to the
environment and, as such, pursuant to section 15061(b)(3) of the CEQA Guidelines is not
subject to CEQA.
NOW, THEREFORE, BE IT RESOLVED by the Successor Agency as follows:
SECTION 1. The Recitals set forth above are true and correct and are incorporated
into this Resolution by reference.
SECTION 2. The Successor Agency hereby approves of the terms of the Agreement.
SECTION 3. The Successor Agency hereby approves of and directs the sale and
conveyance of the Property from Successor Agency to Buyer in accordance with the terms and
conditions set forth in the Agreement, subject to approval of the Agreement by the Oversight
Board.
SECTION 4. The Successor Agency hereby approves of the transfer of all of the net
proceeds received from the sale of the Property and the distribution of such proceeds to the
taxing entities, subject to approval of the Agreement by the Oversight Board.
SECTION 5. The Successor Agency hereby authorizes and directs the Chairman or
the Executive Director of the Successor Agency, or his or her designee, to execute the
Agreement and any other documents necessary to carry out the sale of the Property and to take
all actions and sign any and all documents necessary to implement and effectuate the
Agreement and the actions approved by this Resolution as determined necessary by the
Executive Director, or his or her designee, to execute all documents on behalf of the Successor
Agency (including, without limitation, a grant deed), and to administer the Successor Agency's
obligations, responsibilities and duties to be performed pursuant to this Resolution and the
Agreement, subject to approval of the Agreement by the Oversight Board.
SECTION 6. If any provision of this Resolution or the application of any such provision
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications of this Resolution that can be given effect without the invalid provision or
application, and to this end, the provisions of this Resolution are severable. The City Council
declares that it would have adopted this Resolution irrespective of the invalidity of any particular
portion of this Resolution.
(Signatures page to follow)
Resolution No. 2016 —
Page Three
May 17, 2016
PASSED and ADOPTED this 17th day of May, 2016.
Ron Morrison, Chairman
ATTEST:
Michael R. Dalla, City Clerk as
Secretary to the Successor Agency
APPROVED AS TO FORM:
Claudia Gacitua Silva
Successor Agency General Counsel
CITY OF NATIONAL CITY
Office of the City Clerk
1243 National City Blvd., National City, California 91950-4397
619-336-4228 phone / 619-336-4229 fax
Michael R. Dalla, CMC - City Clerk
CENTRO INDY, LLC
Purchase and Sale Agreement
Condominium Unit — 45 East 12th Street #401
Greg Rose (Housing & Grants) Forwarded
Copy of Agreement to Centro Indy