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HomeMy WebLinkAbout2016 CON Focus Holding Company Revolution 2 - Subdivision Improvement AgreementNOTE TO FILE 11-29-16 IN THE MATTER OF: Agreement by and between the City of National City and the Focus Holding Company for the Revolution 2 Project pertaining to the Subdivision Improvement Agreement, Surety and Performance Bonds. Please note the following: ORIGINAL BONDS ARE FILED UNDER THE 2012 BONDS ORIGINATING DEPARTMENT: NTF CDC _ Housing & Grants _ City Attorney _ Human Resources _ City Manager _ MIS Community Svcs. _ Planning X Engineering _ Police Finance Public Works Fire AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE FOCUS HOLDING COMPANY, LLC This agreement is by and between the City of National City (hereinafter referred to as "City") located at 1243 National City Blvd, National City, California, 91950 and The Focus Holding Company, LLC, located at 7938 Ivanhoe Avenue, Suite B, La Jolla, CA 92037, the property owner (herein after referred to as "Owner") for the Revolution 2 located at located at National City Boulevard and 11th Street, National City, CA 91950 (the "(Project"). A. In November 2010, the City entered into a Trust & Agency Agreement with the then owner, 45 East 12`h Street, LLC (an affiliate of East West Bank) ("East West Bank"), wherein the City collected a deposit in the amount of $317,037. The sum deposited was in the nature of a cash performance bond against the obligations of the subdivider for the purpose of 1) securing the faithful performance of the conditions outlined in the Subdivision Improvement Agreement as conditions of approval for the Final Map for the Centro/Revolution Project; 2) securing the obligations set forth in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California for payment of the contractor, subcontractors, and persons renting equipment or furnishing labor or material for the improvements to be constructed pursuant to said Agreement; and 3) for the payment of reasonable costs and fees, including reasonable attorneys' fees incurred by the City of National City in enforcing the terms and conditions of said Agreement. Pursuant to the below, the OWNER purchased said deposit with the purchase of the property and wishes to replacement the cash performance bond with surety bonds, attached as Exhibit A. B. Under the terms of the Purchase and Sale Agreement by and between Owner and East West Bank, the Trust and Agency Account #1472 currently on file with the CITY released all interest to The Focus Holding Company, LLC, or its successors in interest evidenced by the attached release (Exhibit B). Page 1 of 2 NOW, THEREFORE, the parties agree, as follows: 1. The OWNER hereby agrees to accept and assumes the responsibility for any and all conditions of the Subdivision Improvement Agreement attached hereto as Exhibit C, and incorporated herein by reference. Owner agrees to satisfy all conditions set forth in the Subdivision Improvement Agreement, attached here as Exhibit C, without reservation or limitation. 2. Owner agrees to provide surety and performance bonds acceptable to the City. 3. In the event Owner obtains new or different approvals which require new or different subdivision improvements, owner understands and agrees that additional agreements and/or bonds may be required by the City, in its sole discretion. 4. Upon receipt of an approved surety bond, the City shall release the cash performance bond held in Trust & Agency Account #1472. CITY OF NATIONAL CITY Leslie Deese, City Manager Owner: ntity/Company Signs 71 �� C) fr1 'id-0 e Nam & Title Dated: August 2, 2012 La(Signature of two corporate officers required for corporation) „Wpm ! "^. !t f/ cT/1n4 //ter Name & Title ATTACH NOTARY CERTIFICATION FOR THE NAME OF PERMITTEE SHOWN ABOVE. USE CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT NOTARY ONLY. OVED AS TO FORM: ilva, City Attorney Page 2 of 2 24_04LY EXHIBIT "A" BOND NO: 801823S PREMIUM: $5,562/2YR TERM CITY OF NATIONAL CITY FAITHFUL PERFORMANCE BOND - GRADING PERMIT AND STREET IMPROVEMENTS KNOW ALL PEOPLE BY THESE PRESENTS: THAT FOCUS HOLDING CO LLC located at 7938 IVANHOE AVE; LA JOLLA CA as Principal, and iwuziNTYAND , located at 17771 COWAN STE 100; IRVINE CA , a surety authorized to transact surety business in the State of California, as Surety, are held and firmly bound unto the CITY OF NATIONAL CITY, in the sum of $Tw0 HUNDRED THIRTY ONE THOUSAND SEVEN HUNDRED THIRTY SIX DOLLARS$231,736 ), for the payment whereof, well and truly to be made, said Principal and Surety bind themselves, their heirs, administrators, successors and assigns, jointly and severally, firmly by these presents. The condition of the foregoing obligation is such that, whereas the above -bounden Principal has applied for a grading permit pursuant to the requirements of Chapter 15.70 of the National City Municipal Code for the work located at NATIONAL CITY BLVD / 11TH STREET (state location of work) and agrees to complete the work required by said grading permit as required by said Chapter 15.70, and in addition, to be responsible for all costs, expenses and fees, including reasonable attorney's fees, incurred by the City of National City in enforcing the terms and conditions of said grading permit. NOW, THEREFORE, if the above -bounden Principal shall faithfully perform all of the provisions of said contract, then this obligation shall be void; otherwise to remain in full force and effect. SIGNED AND SEALED this 5TH date of JULY 2012 APPROVED AS TO FORM: By: GEORGE H. EISER, HI City Attorney Title: grwa ,. f (Seal) DEVELOPERS SURETY AND NDEMNITY COMPANY ame of Surety) S. SMITH-BOWMRrr-in- act) (Attached Notary Acknowledgment for Attorney -in -Fact) Address to which notice to Surety should be sent: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA County of SAN DIEGO On JULY 5, 2012 Date } before me, A. WATT, NOTARY PUQLIC Here Insert Wane and Title of the Officer personally appeared S. SMITH -BOWMAN Name(s) of Signer(s) z z A. WATT Commission •# 1818935 S Notary Public - California z San Diego County > My Comm. Expires Oct 21, 2012 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(i) whose name() is/alfk subscribed to the within instrument and acknowledged to me thatlf /she/NiW executed the same in lied/her/1Y W authorized capacity W , and that by IN/her/tffWf signature(i) on the instrument the person($), or the entity upon behalf of which the person(4) 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 OPTIONAL Signature of Notary Public A. WATT Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: El Individual El Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General El Attorney In Fact ❑ Trustee O Guardian orConservator ❑ Other: Signer is Representing: RICHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): 0 Partner — ❑ Limited 0 General ❑ Attorney in Fact ❑ Trustee ❑ Guardian 01 Conservator ❑ Other Signer Is Representing: POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CAUFORNIA PO Box 19725, IRVINE, CA 92623 (949) 263-3300 KNOW ALL BY THESE PRESENTS that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, do each hereby make, constitute and appoint `**Ted Collins, Leslie Hahn, A. Watt, Steven R. Bonilla, S. Smith -Bowman, jointly or severally"* as their true and lawful Attorney(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts of surety- ship giving and granting unto said Attomey(s)-In-Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said Attorney(s)-in-Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by tho respective Boards of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of January 1st, 2008. RESOLVED, that a combination of any two of the Chairman of the Board, the President, Executive Vice -President, Senior Vice -President or any Vice President of the corporations be, and that each of them hereby is, authorized to execute this Power of Attorney, qualifying the atomey(s) named in the Power of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of either of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney; RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures shall bo valid and binding upon the corporations when so affixed and in the future with respect to any bond, undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALiFORNIA have severally caused these presents to be signed by their respective officers and attested by their respective Secretary or Assistant Secretary this January 1st, 2008. By: Daniel Young, Vice -President By: Stephen T. Pate, Senior Vice -President State of Califomia County of Orange On January 31, 2011 before me, Date personally appeared Antonio Alvarado, Notary Public Here Insert Name and Title of the Officer Daniel Young and Stephen T. Pate Name(s) of Signer(s) ridEtitite4----tthaStlie. r , ANTONIO ALVAMDO 1. 1� ,T COMM.11960343 A NatARYPIJOUCCALIKANIA IL_ carol Aug. 0z 2013 i' Place Notary Seal Above 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 hislherlthe r 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 seat. Signature CERTIFICATE Antonio Alvarado, Notary Publc The undersigned, as Secretary or Assistar..t Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA, does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked and, furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth In the Power of Attorney are in force as of tine date of this Certificate. This Certificate is executed in the City of Irvine, California, this ID-1380(Rev.01/11) 5TH day of July , 2012 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Sam d%e j 0 On jury C f'� - - o rZ before me, // fate personally appeared -/e v } ( itiir7 Coe' , /i'/011L lrC Hem Insert Name and The of cer Ail Chetel 6rto& Name(s) of Signer( ; t;7uirt CC'Oi Commission # 180'9760 Notary Puhlic - California San Diego County My Comm. Expires Aug 16, 2012 Place Notary Seel Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Warp subscribed to the within instrument and acknowledged to me that he/sbeItiaey executed the same in his/bar/#rtair authorized capacity(ies), and that by his/ber,heir 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 OPTIONAL Sig! re of Notar u6uc Though the information below Is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Fpf it pc> b Y'9vigfk Vcryi Gr — 411;116 l �f � ke�'f v Document Date: VT1/2 Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Jkvein 1;c4e I ❑ individual ❑ Corporate Officer — Title(s): ❑ Partner — O Limited 0 General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator • Other: 6717 '.f Signer Is Representing: Fe ttt t1o11 d e ff L tC of thumb here Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner 0 Limited 0 General 0 Attorney in Fact © Trustee �] Guardian or Conservator ❑ Other: Signer Is Representing: i1(+HT Tr'Uh1ut'HINT t)F SIGNER y7 Top of murnb here u G,']C IflSCiih[C�n ®ryGD INSCO INSURANCE SERVICES, INC. Underwriting Manager for: Developers Surety and Indemnity Company Indemnity Company of California 17780 Fitch, Suite 200 • Irvine, California 92614 • (949) 263-3300 SUBDIVISION I PROVEMENTS LABOR AND MATERIAL BOND KNOW ALL MEN BY THESE PRESENTS: BOND NO. 801823S PREMIUM INCLUDED IN PERFORMANCE BOND That we, FOCUS HOLDING CO LLC , as Principal, and DEVELOPERS SURETY AND INDEMNITY COMPANY , a corporation organized and doing business under and by virtue of the laws of the State of IOWA and duly licensed to conduct a general surety business in the State of California as Surety, are held and firmly bound unto the CITY OF NATIONAL CITY as Obligee, in the penal sum of ONE HUNDRED FIFTEEN THOUSAND, EIGHT HUNDRED SIXTY EIGHT -- ($ 115,868.00--- ) DOLLARS, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and successors, jointly and severally firmly by these presents. THE CONDITION OF THE OBLIGATION IS SUCH THAT: CITY State the above -named Principal, has entered into an agreement which is made a part of this bond, with the CITY OF NATIONAL State of California, as Obligee, for the designated public improvements in the subdivision identified as APN NO. 556-554-17 NATIONAL CITY BLVD / 11TH ST as required by the Government Code of California. Whereas, under the terms of said agreement, principal is required before entering upon the performance of the work, to file a good and sufficient payment bond with the CITY OF NATIONAL CITY to secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California. Now, therefore, said principal and the undersigned, as surety, are held firmly bound unto the CITY OF NATIONAL CITY and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of the aforesaid agreement and referred to in the aforesaid Code of Civil Procedure for material furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, that said surety will pay the same in an amount not exceeding the penal sum hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the penal sum thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by CITY OF NATIONAL CITY in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgement therein rendered. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code, so as to give right of action to them or their assigns in any suit brought upon this bond. in full Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and :;.:::::::4.force and effect., The suretyherebystipulates and a rees that no change, extension of time, alteration or addition to the terms of said a �_ g g . gr rtiEnt•ay{h�iT. 'j �i specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive nod ' �� and su change, extension, alteration or addition. tit. 10 C% 1p^S In witness whereof, this instrument has been duly executed by the principal and surety above named, on 5TH JULY 2012 t„1 PRINCIPAL FO S HLDING • LLC SURETY: DEVELOPERS SURETY AND INDEMNITY COMPANY ID-1093 (CA) Subdivsio Labor and Material :41REV. 1/01) ahem Attorney -in -Fact CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA County of SAN DIEGO } On JULY 5, 2012 before me, A. WATT, NOTARY PUBLIC Here Insert Name and Title of the Officer Dale personally appeared S. SMITH -BOWMAN Name(s) of Signer(s) 2 z A. WATT Commission # 1818935 Notary Public - California z San Diego County My Comm. Expires Oct 21, 2012 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person*) whose name*) is/affe subscribed to the within instrument and acknowledged to me thatkftlishe/ll executed the same in f!'W/her/iYliauthorized capacityl , and that by/Ai/her/NW signature*) on the instrument the person(sf), or the entity upon behalf of which the person(4) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is tru and correct. Witness my hand and official seal. Signature OPTIONAL Signature of Notary Public A, WATT Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document Document Dale: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Corporate Officer — Tltle(s): ❑ Partner — ❑ Limited 0 General ❑ Attorney In Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTMUMBPR1NT OF SIGNER Top of thumb here O Individual O Corporate Officer—Titie(s): O Partner — ❑ Limited 0 General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRII4T OF SIGNER POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PO Box 19725, IRVINE, CA 92623 (949) 263-3300 KNOW AIL BY THESE PRESENTS that except es expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, do each hereby make, constitute and appoint: '*'`Ted Collins, Leslie Hahn, A. Watt, Steven R. Bonilla, S. Smith -Bowman, jointly or severally*** as their true and lawful Attomey(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts of surety- ship giving and granttng unto said Attorney(s)-in-Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said Attorneys) -In -Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is granted and Is signed by facsimile under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of January 1st, 2008. RESOLVED, that a combination of any two of the Chairman of the Board, the President, Executive Vice -President, Senior Vice -President or any Vice President of the corporations be, and that each of them hereby is, authorized to execute this Power of Attorney, quaifying the attomey(s) named In the Power of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the Secretary or anyAssistant Secretary of either of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney; RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures shall be vafid and binding upon the corporations when so affixed and in the future with respect to any bond, undertaking or contract of suretyship to which it Is attached. IN WITNESS WHEREOF, DEVELOPERS SURETYAND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their respective officers and attested by their respective Secretary or Assistant Secretary this January 1st, 2008. By: c' Daniel Young, Vice -President By: Stephen T. Pate, Senior Vice -President State of California County of Orange On January 31, 2011 personally appeared Date before me, Antonio Alvarado, Notary Public Here Insert Name and Title of the Officer Daniel Young and Stephen T. Pate Names) of Signer(s) ANTONIO ALVARADO COMM, aF 1800643 NO1ARY PUB JO CAUFORfiA 1. ORAN0E COUNTY r ram_ Place Notary Seal Above r 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 capaclty(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 CERTIFICATE Antonio Alvarado, Notary Public The undersigned, as Secretary or Assistant Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA, does hereby certify that the foregoing Power of Attorney remains In full force and has not been revoked and, furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth In the Power of Attorney are in force as of the date of this Certificate. This Certificate Is executed in the City of Irvine, California, this 5TH day of July 2012 I♦ regg OkurIstantSecretary ID-1380(Ray.01/11) )1, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of c_S'a r D t a On icy C'.lt` , ,2o r2_ before me, J Dale personally appeared S1 Pve-r,L } (2 �/t,J;19 cAol /t.Ju7'* 7 oj%N //C fHere Insert Name and Title of theORccer APekQe,e 6:7)-Ciely Names) of Btgner(s) GYUIN CHOI Commission ;:` 1809790 Notary Public - California San Diego County My Comm. Expires Aug 16, 2012 Place Notary Sea) Above 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%balthey executed the same in his/her rear authorized capacity(ies), and that by histeritheir 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 OPTIONAL 36�r *nature of Notary Pablo Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Svld(.'ki'Vcr 1 Document Date: 02471 Signer(s) Other Than Named Above: fiove2a ,9/1 cia6c> o-'o /vra7CYi fit( %o�G� Number of Pages: f Capacity(ies) Claimed by Signer(s) Signer's Name: Se6PA Abi" Pi dy ❑ Individual O Corporate Officer — Title(s): ❑ Partner —0 Limited 0 General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: pr u f party eci 2L e. RJGHTmU1.1EtPnlN_ .M.3 OF SIGNER Signer's Name: 0 Individual ❑ Corporate Officer — TIUe(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee Q Guardian or Conservator E i Other: Signer Is Representing: ro tridL1 ffiPHlr or,sictarn EXHIBIT "B" EASTV YESTBA.N To: The City of National City, Development Services Department Re: Cash Bond for Trust and Agency Account #001472 Attached) Date: June 13, 2012 Dear National City, Development Services Department: You are advised that upon close of escrow as evidenced by the recordation of a Deed from East West Bank to the Focus Holding Company, Ll_C (the "Focus Group"), East West Bank shall have completed the sale of its interest In the Revolution 2 project to the Focus Group. The sale included an assignment and transfer of the subject cash bond accounts currently on hold with your department. The Focus Group, Inc., or its successors in interest, are now the owners and beneficiaries of said cash bonds, and have succeeded to all right, title and interest which East West Bank had in said accounts. Any further action, disposition or refund involving said cash bond accounts may occur at the sole direction of the Focus Group, Inc., or its successor in interest, without further input or involvement of East West Bank. East West Bank By: Its: 'RIP 555 Montgomery St., San Francisco, CA 94111, Tel. 415.315.2800 • Nasdaq: EWBC EXHIBIT "C" SUBDWISION IMPROVEMENT AGREEMENT DATE OF AGREEMENT: NAME OF SUBDIVIDER: Constellation Property Group, A Avenue L.P. ADDRESS OF SUBDIVIDER: 3963 Del Mar Avenue, San Diego, CA92107 NAME OF SUBDIVISION: Centro/Revolution 2 CITY COUNCIL/PLANNING COMMISSION RESOLUTION OF APPROVAL NO.: 2006-112 ADOPTED:June 20, 2006 IMPROVEMENT DRAWING NO.: 10302-D ESTIMATED TOTAL COST OF IMPROVEMENTS: (OFF -SITE AND ON -SITE): $199,203. ESTIMATED TOTAL COST OF MONUMENTATION: $0.00(All Monumentation has been set) ESTIMATED TOTAL COST OF LANDSCAPING AND IRRIGATION: $12,155.00 TIME LIMIT FOR COMPLETION OF IMPROVEMENTS: Prior to occupancy of Lot 2 NAME OF SURETY AND BOND/LETTER OF CREDIT NUMBERS: This agreement is made and entered into by and between the City of National City, California, a Municipal Corporation of the State of California, hereinafter referred to as City; and the Subdivider named on Page 1 hereof, hereinafter referred to as Subdivider. RECITALS WHERAS, Subdivider has presented to City for approval and recordation, a final subdivision map/parcel map of a proposed subdivision as stated on Page 1 hereof pursuant to provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 17 of the National City Municipal Code, hereinafter referred to as Code, relating to the Filing, approval and recordation of subdivision maps; and WHEREAS, a Tentative Map of the Subdivision has been approved, subject to the requirements and conditions contained in the resolution listed on Page 1 hereof. Said resolution is 1 on file in the office of the City Clerk and is incorporated herein by reference and made a part hereof; and WHEREAS, the Code provides that before the fmal subdivision or parcel map is approved by the City Council of the City Engineer, Subdivider must have complied with the requirements of said resolution and must have entered into an agreement with the City, secured by an approved improvement security to insure the performance of the work and payment to the contractor and to all persons furnishing labor, materials and equipment, pursuant to the requirements of the Code, agreeing at its own expense to install and complete, free of liens, all of the public improvements, land development and landscaping and irrigation work required in the subdivision within a definite period of time prescribed by the Council or City Engineer; and WHEREAS, Subdivider, in consideration of the approval and recordation of this map by the Council or the City Engineer, desires to enter into this agreement wherein it is provided that the Subdivider will install and complete at its own expense, all of the improvement work required in connection with the proposed subdivision and will deliver to the City an improvement security as approved by the City Attorney; and WHEREAS, complete plans and specifications for the construction, installation and completion of all of the improvement work have been prepared and approved by the City Engineer; as shown on the drawings listed on Page 1 hereof which have been prepared and approved by the City Engineer; as shown on the drawings listed on Page 1 hereof which have been filed in the office of the City Engineer and are incorporated by reference herein and made part of hereof, and WHEREAS, it is necessary that certain monuments and stakes as specified on the final map shall be installed within thirty days after completion of the required improvements and their acceptance by the City, and that street signs be placed at intersections, as required by the Code; and 2 WHEREAS, an estimate of the cost of constructing the public improvements, and the necessary land development work in connection therewith according to said plans and specifications has been made and has been approved by the City Engineer in an amount stated on Page 1 hereof, which estimate is attached hereto, marked Exhibit "A"and made a part hereof; and WHEREAS, an estimate of the cost for the installation of all monuments has been approved by the City Engineer in an amount stated on Page 1 hereof, which estimate is attached hereto, marked Exhibit "B" and made a part hereof; NOW, THEREFORE, in consideration of the approval and recordation by the City Council or the City Engineer of the final map of this subdivision, and other valuable consideration, Subdivider and City agree as follows: 1. Subdivider shall: a. Comply with all the requirements of said tentative map resolution, and any amendments thereto and with the provisions of the Code. b. Complete at its own expense, in accordance with the plans and specifications and to the satisfaction and approval of the City Engineer, all of the public improvement, land development, and landscaping and irrigation work required in and adjoining the subdivision as follows: IMPROVEMENT Masonry Retaining Wall Street Trees and Ground Cover Irrigation 3 DEADLINE DATE Prior to occupancy of Lot 2 LC IMPROVEMENT Curb & Gutter Sidewalk Alley Pavement Pedestrian Ramp Remove Curb & Gutter Remove Sidewalk Remove Alley Pavement Sewer Service Water Service Curb Outlet Sidewalk Underdrain Monumentation 4 DEADLINE DATE Prior to occupancy of Lot 2 CC 64 (G 'C Gf 'C tt 'C Prior to occupancy of Lot 2 Completed c. Furnish the necessary materials therefore, in conformity with the plans and specifications on file in the office of the City Engineer. d. Notify City Engineer in writing at least fifteen days prior to the commencement of the work hereunder. No construction shall begin until approved authorization has been obtained and the official Preconstruction conference has been held. e. Complete the improvements listed in 1. (b) above, under this contract on or before the time limits stated hereof. f. Install all monuments required by law within thirty days after the completion and acceptance of the improvements by the City Engineer. g. Install temporary street name signs if permanent street name signs have not been installed. 2. All utilities shall be underground as per National city Municipal Code Section 17.07.032 and SDG&E approval. Cable for TV shall be provided. 3. Subdivider agrees to install and maintain landscaping and irrigation as per City approved plans ( 1 sheets) dated 11/10/2010 . Such work shall be secured by a faithful performance security in the amount of 100% of the total estimated cost of the work, and a payment security in the amount of 50% of the total estimated cost of the work. (See Exhibit "C" for an estimate of the landscape and irrigation work). Subdivider shall maintain all areas of landscape in a manner that is satisfactory and acceptable to the City, and shall indemnify and save City harmless from original or developed defects in materials and workmanship supplied by the developer appearing within one year from the date of acceptance of the work by the City. 4. If any of the public improvement, land development and landscape and irrigation work contemplated by this agreement is to be constructed or installed on land not owned by Subdivider, no construction or installation shall be commenced prior to the dedication and acceptance by the City of the appropriate easements. 5 5. The City Engineer or his duly authorized representative, upon request of the Subdivider, shall inspect at Subdivider's expense, the improvements herein agreed to be constructed and installed by Subdivider, and if determinded to be in accordance with applicable city standards and the terms of this agreement, shall recommend the acceptance of such improvements by the City. Subdivider shall at all times maintain proper facilities, and provide safe access for inspection by City, to all parts of the work, and to the shops wherein the work is in preparation. 6. Subdivider shall furnish to the City good and sufficient security on forms approved by the City, in the amount of 100% of the estimated cost of said improvements as stated on Page 1, hereof, to assure faithful performance of this agreement in regard to said improvements; and in the additional amount of 50% of said amount for securing payment to contractor, his subcontractors and persons renting equipment or furnishing labor or materials to them for the improvements required to be constructed or installed hereby. Ten percent (10%) of the amount of the faithful performance bond shall continue in effect to guarantee or warranty the work done pursuant to this agreement for a period of one year following acceptance thereof by the City against any defective work or labor done or defective materials furnished. Subdivider shall furnish to the City such security in the amount of 100% of the estimated cost of setting subdivision monuments as stated on Page 1, hereof and as required by this agreement. The securities required by this agreement shall be filed with the City Clerk or the Director of Finance Department, and when so filed, shall be incorporated by reference herein. 7. Any changes, alterations or additions to the improvement plans and specifications or to the improvements, not exceeding 10% of the original estimated cost of the improvement, which are mutually agreed upon by city and Subdivider, shall not require additional improvement security given for faithful performance of the improvement. In the event such changes, alterations, or additions exceed 10% of the original estimated cost of the improvement, Subdivider shall provide improvement security for faithful performance as required 6 by this agreement for 100% of the total estimated cost of the improvement as changed, altered, or amended, minus any completed partial releases thereof as allowed by this agreement. 8. The securities required by this agreement shall be released as follows: a. Security given for faithful performance of any act or agreement shall be released upon the final completion and acceptance of the act or work, subject to the provisions of Subsection (b) hereof. b. The City Engineer may release a portion of the security in conjunction with the acceptance of the performance of this act or work as it progresses upon application therefore by the Subdivider; provided, however, that no such release shall be for an amount less than 25% of the total improvement security given for faithful performance of the act or work and that the security shall not be reduced to an amount less than 50% of the total improvement security given for faithful performance until final completion and acceptance of the act or work. In no event shall the city Engineer authorize a release of the improvement security which would reduce such security to an amount below that required to guarantee the completion of the act or work and any other obligation imposed by the Code, the Subdivision Map Act or this agreement. c. Security given to secure payment to the contractor, his subcontractors and to persons furnishing labor, materials or equipment shall, six months after the completion and acceptance of the act or work, be reduced to an amount equal to the amount of all claims therefore filed and of which notice has been given to the legislative body plus an amount reasonably determined by the City Engineer to be required to assure the performance of any other obligations secured thereby. The balance of the security shall be released upon the settlement of all such claims and obligations for which the security was given. 7 d. No security given for the guarantee or warranty of work shall be released until the expiration of the period thereof and until any claims filed during said period have been settled. 9. Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, all pipes and monuments shown on the map which have been destroyed or damaged, and Subdivider shall replace or have replaced, repaired, or have repaired, as the case may be, or pay to the owner, the entire cost of replacement or repairs of any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, or the State or California, or any agency or political subdivision thereof, or by the City or by any public or private corporation, or by any person whomsoever, or by any combination of such owners. Any cash repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer. 10. Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of such improvements, give all necessary notices and pay all fees and taxes required by law. I I . In the event that Subdivider fails to perform any obligation hereunder, Subdivider authorizes City to perform such obligation twenty days after mailing written notice of default to Subdivider and to Subdivider's Surety, and agrees to pay the entire cost of such performance by the City. The sums provided by the improvement security may be used by the City for the completion of the required improvements within the subdivision in accordance with specifications contained herein. City may take over the work and prosecute the same to completion, by contract or by any other method the City may deem advisable, all costs shall be at the expense of Subdivider, and the Subdivider's Surety shall be liable to the City for any excess cost or damages occurred by the City; and, in such event, the City, without liability for so doing, may take 8 possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Subdivider as may be on the site of the work and necessary therefore. 12. In the event that the Subdivider fails - to perform any obligation hereunder, Subdivider agrees to pay all costs and expenses incurred by the City in securing performance of such obligations, including costs of suit and reasonable attorney's fees. 13. Subdivider shall guarantee or warranty the work done pursuant to this agreement for a period of one year after final acceptance of said work against any defective work or labor done or defective materials furnished. If within said period any structure or part of any structure furnished and/or installed or constructed, or caused to be installed or constructed by Subdivider, or any of the work done under this agreement, fails to fulfill any of the requirements of this agreement or the plans and specifications referred to herein, Subdivider shall without delay and without any cost to City, repair or replace or reconstruct any defective otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, Subdivider hereby authorizes City, at City's option, to perform the work twenty days after mailing written notice of default to Subdivider and agrees to pay the cost of such work by City. Should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified, City may, at its option, make the necessary repairs or replacement or perform the necessary work and Subdivider shall pay to City the cost of such repairs. 14. Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this Agreement. 15. Nothing contained in this agreement shall preclude City from expending monies pursuant to agreements concurrently or previously executed between the parties, or from entering into agreements with subdividers for the apportionment of costs or water and sewer mains 9 pursuant to the provisions of the National City Municipal Code providing therefor, nor shall anything herein stated commit City to any such apportionment. 16. Until such time as all improvements required by this agreement are fully completed and accepted by the City, Subdivider will be responsible for the care, maintenance of and any damage to such improvements. Subdivider shall give good and adequate warning to the travelling public of each and every dangerous condition existent in said improvements, and will protect the travelling public from such defective or dangerous conditions. The Subdivider hereby agrees to pay for such inspection of such improvements as may be required by the City Engineer of the City. 17. Upon acceptance of the work on behalf of the City and recordation of the Notice of Completion, ownership of the improvements constructed pursuant to this agreement shall vest in the City. 18. Acceptance of the work on behalf of the City shall be made by the City Engineer upon authorization of the City Council. Such acceptance shall not constitute a waiver of defects by the City. 19. The City or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of the Subdivider, its agents or employees in the performance of this agreement. Subdivider further agrees to protect and hold harmless the City, its officials and employees from any and all claims, demands, causes of action, liability or loss of any sort because of, or arising out of acts or omissions of the Subdivider, its agents or employees in the performance of this agreement, including all claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the improvements; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Said indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said subdivision 10 and the improvements as provided herein, to adjacent property owners as a consequence of the diversion of waters from the design, construction or maintenance of drainage systems, streets and other improvements. Acceptance by the City of the improvements shall not constitute an assumption by the City of any responsibility for any damage or taking covered by this paragraph. City shall not be responsible for the design or construction of the subdivision or the improvements pursuant to the approved improvement plans regardless of any action taken by the City on approval of the plans. The Subdivider shall remain obligated to eliminate any defect in design or dangerous condition caused by the design, other than routine maintenance, or damage to the improvements by an act of God for the time period specified in this agreement. Provisions of this paragraph shall remain in full force and effect for ten years following the acceptance by the City of the improvements. 20. City shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage happening or occurring to the work or improvements specified in this agreement prior to the completion and acceptance of same, nor shall said City, nor any officer or employee thereof, be liable for any persons or property injured by reason of said work or improvements, but all of said liabilities shall be assumed by Subdivider. 21. Sale or other disposition of this property will no relieve Subdivider from the obligations set forth herein. 22. Time is of the essence of this agreement. Subdivider shall commence substantial construction of the improvements required by this agreement not later than nine months prior to the time for completion. Provided that in the event good cause exists as determined by the City Engineer, the time for commencement of construction or completion of the improvements hereunder maybe extended. Any such extension may be granted without notice to Subdivider's Surety and shall in no way affect the validity of this agreement or release the Surety or Sureties on any bond given for the faithful performance of this agreement. The City Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle Subdivider to an 11 extension. As a condition of such extensions the City Engineer may require Subdivider to furnish new security guaranteeing performance of this agreement as extended in an increased amount as necessary to compensate for any increase in construction costs as determined by the City Engineer. Failure of Subdivider to comply with the terms of this agreement shall constitute consent to the filing by City of notice of violation against all the lots in the Subdivision. 23. In the event that suit is brought by City to enforce the terms of this contract, City shall be entitled to process such suit and a reasonable sum as attorney's fees. IN WITNESS WHEREOF, the City has caused this agreement to be executed by having affixed thereto the signature of an authorized City representative and the Subdivider has caused this agreement to be executed, as duly authorized, the day and year first hereinabove written. DATED this day of November, 2010 . Stephen Scotchmer, Vice President Constellation Property Management, Inc. General Partner of Constellation Property Group (A Avenue) LP SUBDIVIDER APPROVED AS TO FORM: Claudia G. Silva, City Attorney BY: CITY OF NATIONAL CITY, A Municipal Corporation of the State of California CHRIS ZAPATA CITY MANAGER (NOTARIAL ACKNOWLEDGMENT OF EXECUTION OF OWNERS MUST BE ATTACHED) 12 — a. OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax Focus Holding Company Revolution 2 Project Judy Hernandez (Engineering) Forwarded Copy of Notice of Completion to Focus Holding Company