Download - ATTACHMENT B - docs.sandiego.gov
ATTACHMENT B
TABLE OF CONTENTS
Page
1. Purchase and Sale
2
2.
Purchase Price
2
3. Payment of Purchase Price
3
4. Condition of Title
3
5. Opening of Escrow
3
6.
Conditions to the Close of Escrow.
3
7.
Deliveries to Escrow Holder
9
8.
Deliveries to Buyer Upon Close of Escrow
11
9.
Title Insurance
11
10. Costs and Expenses
12
11. Prorat ions
12
12.
Disbursements and Other Actions by Escrow Holder
13
13.
Seller's Representations and Warranties
14
14.
Seller's Covenants Regarding Operation of the Property Through the Close of Escrow
16
15.
Buyer's Representations and Warranties
17
16.
Condemnation and Destruction.
18
17. Indemnificat ion
19
18. Notices
19
19.
No Real Estate Brokers or Commissions
20
20.
Required Actions of Buyer and Seller
21
21. Entry
22
22.
Legal and Equitable Enforcement of this Agreement
22
23. Miscellaneous.
23
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[Property Acquisition Agreement and Joint Escrow Instruction
PROPERTY ACQUISITION AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
California Health & Safety Code section 33391(a)
Centre City Redevelopment Project Area
Redevelopment Agency of the City of San Diego
To:
Lawyers Title Insurance Company
Escrow No.
11609909-909-LM
5898 Copley Drive, Third Floor
Escrow Officer: Linda L. McLain, CSEO
San Diego, California 91211
Tel. No. (858) 650-3946 — Fax No. (619) 209-3449
THIS PROPERTY ACQUISITION AGREEMENT AND JOINT ESCROW INSTRUCTIONS
("Agreement")
by and between WAKELAND HOUSING & DEVELOPMENT CORPORATON, a
California corporation
("Seller"),
and the REDEVELOPMENT AGENCY OF THE CITY OF SAN DIEGO,
a public body, corporate and politic,
("Buyer")
is made and entered into as of the date the Agreement is
signed by the Buyer
("Execution Date").
R E C IT A L S :
A.
Seller entered into an agreement for purchase and sale of real property with D&A Semi-
Annual Mortgage Fund III, L.P., ("D&A") dated April 22, 2009, as amended by that certain amendment to
agreement for purchase and sale of real property dated as of July 1, 2009
("Initial D&A-Wakeland
Contract").
The parties to the Initial D&A-Wakeland Contract subsequently amended and restated the
agreement for purchase and sale of real property in a contract dated January 26, 2010 (the
"D&A-Wakeland
Contract")
concerning that certain real property commonly described as 1453 Fourth Avenue and 1446 Fifth
Avenue, San Diego, California 92101 in the City of San Diego ("City"), County of San Diego
("County"),
State of California ("State")
and legally described on Exhibit "A" and the property described therein shall be
referred to as the "Property."
B.
Capitalized terms shall have the meanings set forth in connection with the use of such terms.
If no definition is so set forth, such capitalized terms shall have the meanings set forth in the Glossary of
Terms attached hereto.
C.
The Property was excavated for a failed development and abandoned with exposed shoring as
depicted on that certain Review and Evaluation Report for Former Atmosphere Site Shoring bearing project
number 09076 prepared by Flores Lund Consultants, as amended November 16, 2009.
D.
Among other conditions precedent to closing the D&A-Wakeland Contract, D&A agrees to
provide tie-back easement agreements as set forth in Section 4.2(e) of the D&A-Wakeland Contract. Pursuant
to Section 11.19 of the D&A-Wakeland Contract, upon D&A's request, Seller will provide assistance to D&A
in obtaining signatures of adjoining property owners to the tie-back easement agreement.
E.
Following review of the D&A-Wakeland Contract and consideration of conditions precedent
to the Close of Escrow herein, Buyer indicates it would approve tie-back easement agreements so long as they
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are in substantially in the same form attached hereto as Exhibit "F" and delivered by all property owners
adjoining the Property (the
"Tie-Back Condition").
F.
Among other conditions precedent to closing the D&A-Wakeland Contract, D&A agrees to
fill the Property to a finish grade and compact the soil according to permits issued by the City as set forth in
Section 4.2(f) of the D&A-Wakeland Contract. Pursuant to Section 11.19 of the D&A-Wakeland Contract,
upon D&A's request, Seller will provide assistance to D&A in identifying contractors and obtaining
approvals of the work by Buyer. At or around the Execution Date, Seller believes D&A will not request
assistance from Seller
G.
Following further review of the D&A-Wakeland Contract and consideration of conditions
precedent to the Close of Escrow herein, Buyer indicates it desires the Property be delivered at the Close of
Escrow filled, compacted and graded according to certain requirements of the City; to facilitate delivery of the
Property at the Close of Escrow according to its desires, Buyer proposes an engineer involved in filling,
compacting, and grading the Property complete a form of certification of engineer, substantially in the form
attached hereto as Exhibit "G," certifying completion and delivery of the Property (the
"Fill Condition").
H.
Seller acknowledges receipt of that certain Review and Evaluation Report for Former
Atmosphere Site Shoring bearing project number 09076 prepared by Flores Lund Consultants, as amended
November 16, 2009 which contains further information concerning Buyer's due diligence concerning the
Property and Buyer's expectations concerning satisfaction of the Fill Condition.
I.
After completing discussions on proposed terms for an exclusive negotiations agreement,
Buyer has provided Seller the terms under which Buyer would enter into an exclusive negotiation agreement
with Seller concerning the future development of a mixed-use project predominately comprised of affordable
housing on the Property wherein Seller would be the sole negotiating party with Buyer for a period of up to
two years after the Close of Escrow.
J.
In furtherance of Health and Safety Code sections 33334.2 and 33334.3 and in contemplation
of the transactions described herein, Buyer proposes to utilize funds from its low and moderate income
housing fund to purchase and devote the Property to increase the community's supply of low and moderate
income housing at an affordable housing cost.
K.
Buyer and Seller desire to enter into this Agreement subject to the closing of the D&A-
Wakeland Contract. The Closing Date of this Agreement is to be concurrent and back-to-back with the
closing of the D&A-Wakeland Contract, recordation of the tie-back agreements provided in satisfaction of the
Tie-Back Condition, and the recordation of that certain grant deed from D&A to Seller.
A G R E EM EN T :
NOW THEREFORE, incorporating the foregoing recitals, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows.
1.
Purchase and Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller,
Seller's entire undivided interest in the Property upon the terms and conditions set forth in this Agreement.
2.
Purchase Price. The Purchase Price for the Property shall be Four Million Nine Hundred
Fifty Thousand Dollars ($4,950,000.00) (the
"Purchase Price").
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3.
Payment of Purchase Price. Subject to the terms of this Agreement, the Purchase Price shall
be paid by Buyer at the Close of Escrow, as follows:
3.1 On or before the Closing Date, Buyer shall deposit with Escrow Holder the Purchase
Price (the
"Closing Funds");
Escrow Holder shall place the Closing Funds in an interest-bearing account in
favor of Buyer.
3.2
On the Closing Date, interest accrued on deposits shown in Paragraph 3.1 shall be
shown as a credit by Escrow Holder in favor of Buyer.
4.
Condition of Title. At the Close of Escrow, the entire undivided fee simple title to the
Property shall be conveyed to Buyer by Seller by the Grant Deed, as defined hereinbelow, with a legal
description approved by the Buyer, subject only to the following matters
("Approved Title Conditions"):
(A) a lien for general real property taxes, not then delinquent; (B) matters of title respecting the Property
approved by Buyer in accordance with Paragraph 6.1.1 below; and (C) matters affecting the condition of title
to the Property created by or with the written consent of Buyer.
5.
Opening of Escrow. Buyer and Seller shall promptly cause the Opening of Escrow by
delivering a fully executed copy of this Agreement to Escrow Holder and such other supplemental escrow
instructions among D&A, Seller, and Buyer, if and as appropriate. The Close of Escrow shall occur on the
Closing Date.
6.
Conditions to the Close of Escrow.
6.1 Conditions Precedent to Buyer's Obligations. Buyer shall have the entire period
commencing upon the Opening of Escrow through the Contingency Date within which to make all reviews,
inspections, audits, or investigations desired by Buyer with respect to the satisfaction of the Fill Condition.
Seller has previously furnished all results of Seller's reviews, inspections, audits, and investigations
prosecuted by Seller under the D&A-Wakeland Contract to Buyer, including any and all due diligence
material concerning D&A, Asset Managers, Inc., and any documentation obtained by Seller concerning the
interests of D&A and Asset Managers, Inc. in the Property. Seller agrees to furnish to Buyer any and all
reports and documents produced by the consultants and third-parties retained under Section 4.2 of the D&A-
Wakeland Contract. Pursuant to Section 4.2(f)(viii) of the D&A-Wakeland Contract, D&A has agreed to,
among other things, cooperate with Centre City Development Corporation, a California corporation
("CCDC"), Buyer's agent, and its authorized representatives, with monitoring of the repairs being performed
on the Property. The Close of Escrow and Buyer's obligations with respect to the transaction contemplated
by this Agreement are subject to the satisfaction of the following conditions precedent, not later than the
Contingency Date, unless extended through the Closing Date as specifically noted in Paragraphs 6.1.1 through
6.1.8, inclusive:
6.1.1 Title. Buyer received a third amended preliminary report issued by the Title
Company dated as of February 2, 2010 (the
"Title Report")
and certain underlying documents referenced
therein (the "Title Documents").
Buyer notifies the Seller and Escrow Holder of the Buyer's approval,
conditional approval and disapproval of the Title Documents as follows: (1) Buyer
approves the following
Schedule B Section B exceptions in the Title Report: A, 2, 5, 6, 7, 11, and 14; Buyer
conditionally approves
the following Schedule B Section B exceptions in the Title Report and requests Seller and Title Company
advise if the conditions for approval may be satisfied prior to the Closing Date: H (revised to add the phrase
"after the date of policy" before the period), 1 (provided CLTA 103.5 endorsement affirmative insurance is
issued by Title Company in connection with the Title Policy), 3 (provided CLTA 100.6 affirmative insurance
over this exception is issued in connection with the Title Policy), 4 (provided CLTA 100.6 affirmative
insurance over this exception is issued in connection with the Title Policy), 8 through 10, inclusive (provided
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CLTA 100.6 affirmative insurance over these exceptions are issued in connection with the Title Policy), 12
(provided modified CLTA 100 affirmative insurance is provided for an owner and regarding existing and
future improvements and issued in connection with the Title Policy), 13 (provided modified CLTA 100
affirmative insurance is provided for an owner and regarding existing and future improvements and issued in
connection with the Title Policy), 22 (provided the Title Company performs their inspection, discloses the
results, if any, and maintains only the following exception language "The fact that there is a pedestrian
stairway which accesses adjoining property to the east" or such other exception mutually agreed upon
between Buyer and Title Company), 24 (provided the Title Company acknowledges reports of the Seller and
D&A concerning the duty of inquiry, discloses the results, if any, and deletes this exception entirely in
exchange for the revised exception 27), and 27 (provided the Title Company limits this exception to
"Discrepancies, conflicts in boundary lines, shortage in area, e exception to "Matters which may be disclosed
by a survey."); Buyer
disapproves
the following Schedule B Section B exceptions in the Title Report: 15
through 22, inclusive, 25 and 26. The foregoing shall constitute
"Buyer's Title Notice."
Seller shall have
the right, but not the obligation, to indicate which items Seller shall eliminate from the Title Policy (and as
exceptions to title to the Property), and the manner in which Seller shall do so, by delivering written notice
thereof to Buyer
("Seller's Title Notice")
within thirty (30) days after execution of this Agreement. If Seller
fails to timely deliver Seller's Title Notice, then Seller shall be deemed to have elected to correct all of the
matters disclosed in Buyer's Title Notice. Buyer shall have the right, in its sole and absolute discretion, to
approve or disapprove Seller's Title Notice, or Seller's election not to cure any matters disclosed in Buyer's
Title Notice, as applicable, by delivering written notice thereof to Seller on or before the Contingency Date;
and Buyer's election to terminate this Agreement in accordance with Paragraph 6.1.2 below. If Buyer
approves Seller's Title Notice, then by the Closing Date Seller shall eliminate those disapproved matters set
forth in Seller's Title Notice (or Buyer's Title Notice, if Seller is deemed to have elected to correct such
matters) from the Title Policy and as exceptions to title to the Property in the manner indicated therein.
Notwithstanding the foregoing, Buyer hereby objects to all liens evidencing monetary encumbrances
(including liens for non-delinquent general real property taxes and assessments) and Seller agrees to cause all
such liens to be eliminated at Seller's sole cost (including all prepayment penalties and charges) prior to the
Closing Date. Seller agrees to provide the Title Company with all such documents as may be reasonably
required by Title Company to confirm the validity of transfer of title to Seller from the D&A-Wakeland
Contract. Seller further agrees to provide the Title Company with all such releases, evidence of payment, or
like documentation to confirm and remove all monetary encumbrances and any standard nonspecific
exceptions, including, but not limited to, any owner's statements or lien affidavits from the Title Policy.
6.1.2 Review and Approval of Documents and Materials. Buyer confirms receipt
of pages 7 and 10 of certain temporary shoring plans prepared by Flores Lund Consultants under work order
number 421558, a June 22, 2009 letter from Earth Support Systems, and a phase I environmental report from
the Seller delivered to Buyer in connection with the Initial D&A-Wakeland Contract (the
"Prior Due
Diligence").
Buyer has also independently obtained and provided to Seller that certain Review and
Evaluation Report for Former Atmosphere Site Shoring bearing project number 09076 prepared by Flores
Lund Consultants, as amended November 16, 2009. To the extent there exists additional due diligence
material obtained by Seller since the Initial D&A-Wakeland Contract, within five (5) days of the Execution
Date, Seller shall deliver to Buyer for Buyer's review and approval any other documents and materials
respecting the Property set forth below. In addition, and with respect to the Fill Condition, Seller shall
delivery all other documents and materials Seller receives in connection with the D&A-Wakeland Contract
concerning the Fill Condition. Buyer shall have until the Contingency Date to review and approve the
documents and materials concerning the Fill Condition delivered by Seller to Buyer. At any time on or before
the Contingency Date, Buyer shall have the right, in its sole and absolute discretion, to terminate this
Agreement should there be a failure to satisfy the Fill Condition or failure to permit Buyer, CCDC, Buyer's
agents, contractors, or consultant's access to the Property to monitor the satisfaction of the Fill Condition.
Buyer's delivery of written notice to Seller of Buyer's disapproval of the repair work performed to satisfy the
Fill Condition shall constitute an election by Buyer to terminate this Agreement in accordance with this
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Paragraph 6.1.2. Notwithstanding the foregoing, Seller agrees to provide any and all documents and materials
concerning the Property, the Fill Condition and the D&A-Wakeland Contract through the Close of Escrow
despite the passage of the Contingency Date. In the event any documents or materials are delivered by Seller
to Buyer after the Contingency Date and the information set out in such documents or materials would have
permitted Buyer to terminate the Agreement on or before the Contingency Date, Buyer shall have the right, in
its sole and absolute discretion, to terminate this Agreement up until the Closing Date notwithstanding such
earlier election to the contrary.
(A)
Soils and Geological Reports. Buyer confirms receipt of the Prior Due
Diligence. To the extent any additional applicable documents and materials under this category are received
in connection with the Fill Condition, Seller shall deliver such additional applicable documents and materials,
including without limitation, any and all soils, geological, geophysical, biological, anthropological, cultural or
paleontological surveys, reports, or studies it has commissioned, ordered, or received relating to the Property,
reports confirming only Clean Soil is brought onto the Property or other reports or documents concerning the
Repair of the Property as described in Section 4.2 of the D&A-Wakeland Contract that are obtained by Seller.
Seller's duty to provide these surveys, reports, studies, or documents is an ongoing duty through the Closing
Date. In the event any documents or materials are delivered by Seller to Buyer after the Contingency Date
and the information set out in such documents or materials would have permitted Buyer to terminate the
Agreement on or before the Contingency Date, Buyer shall have the right, in its sole and absolute discretion,
to terminate this Agreement up until the Closing Date notwithstanding such earlier election to the contrary.
(B)
Environmental Reports. Buyer confirms receipt of the Prior Due Diligence.
To the extent any additional applicable documents and materials under this category are received in
connection with the Fill Condition, Seller shall deliver such additional applicable documents and materials,
including, without limitation, any and all environmental surveys, reports, or studies it has commissioned,
ordered, or received relating to the Property, reports confirming only Clean soil is brought onto the Property
or other reports or documents concerning the Repair of the Property as described in Section 4.2 of the D&A-
Wakeland Contract that are obtained by Seller. Seller's duty to provide these surveys, reports, studies, or
documents is an ongoing duty through the Closing Date. In the event any documents or materials are
delivered by Seller to Buyer after the Contingency Date and the information set out in such documents or
materials would have permitted Buyer to terminate the Agreement on or before the Contingency Date, Buyer
shall have the right, in its sole and absolute discretion, to terminate this Agreement up until the Closing Date
notwithstanding such earlier election to the contrary.
(C)
Personal Property Inventory. Seller certifies herein to the Buyer that there is
no personal property or like listing or description of inventory
("Inventory")
included in the D&A-Wakeland
Contract and to the best of Seller's knowledge there is no Inventory to report herein to convey to the Buyer in
this transaction. The parties agree that the General Assignment and Bill of Sale that Seller shall deliver to
Buyer on or before the Closing Date will convey any Inventory on the Property after the Execution Date and
before the Closing Date acquired by Seller at Close of Escrow whether or not expressly contained or
identified in the D&A-Wakeland Contract.
(D)
Records and Plans. Seller shall deliver to Buyer a list and complete copies
of all Records and Plans and Licenses and Permits including, but not limited to, any concerning the Repair of
the Property as described in Section 4.2 of the D&A-Wakeland Contract that are obtained by Seller. Seller
acknowledges satisfaction of the Fill Condition requires certain permits. To the extent D&A delivers actual
copies of any applications or like documents concerning Records and Plans obtained in satisfaction of the Fill
Condition, Seller shall deliver all documents received from D&A. Seller agrees to provide any and all other
such documentation received by Seller in connection with the fill of the Property and satisfaction of the Fill
Condition and related materials, including copies of any and all draw requests signed by Seller in connection
with satisfaction of the Fill Condition and the D&A-Wakeland Contract. This condition is an ongoing duty
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through the Closing Date. In the event any documents or materials are delivered by Seller to Buyer after the
Contingency Date and the information set out in such documents or materials would have permitted Buyer to
terminate the Agreement on or before the Contingency Date, Buyer shall have the right, in its sole and
absolute discretion, to terminate this Agreement up until the Closing Date notwithstanding such earlier
election to the contrary.
(E)
Claims. Seller shall deliver to Buyer a list of all pending or threatened
claims, proceedings, regulatory or legal actions instituted against Seller or in connection with the D&A-
Wakeland Contract, including, but not limited to the Repair of the Property as described in Section 4.2 of the
D&A-Wakeland Contract. Seller agrees to provide this information to the best of Seller's knowledge and this
duty to provide this information concerning pending or threatened claims, proceedings, regulatory or legal is
an ongoing duty through the Closing Date. In the event any documents or materials are delivered by Seller to
Buyer after the Contingency Date and the information set out in such documents or materials would have
permitted Buyer to terminate the Agreement on or before the Contingency Date, Buyer shall have the right, in
its sole and absolute discretion, to terminate this Agreement up until the Closing Date notwithstanding such
earlier election to the contrary.
(F)
Tenant Leases. To the best of Seller's knowledge, Seller certifies herein to
the Buyer that there are no Tenant Leases affecting the Property and agrees to demonstrate such confirmation
through the Close of Escrow by delivering the attached the Estoppel Certificate on the Closing Date. The
parties agree the Property is to be conveyed to Buyer without any tenants, licensees, or occupants on the
Property.
(G)
Service Contracts. To the best of Seller's knowledge, Seller certifies herein
to the Buyer that there are no Service Contracts affecting the Property and agrees to demonstrate such
confirmation through the Close of Escrow by delivering the attached Estoppel Certificate on the Closing Date.
The parties agree the Property is to be conveyed to Buyer without any Service Contracts affecting the
Property, other than those entered into by D&A in connection with Section 4.2(f) of the D&A-Wakeland
Contract and disclosed to the Buyer on the Estoppel Certificate. Unless otherwise agreed upon by the Buyer,
there shall be no other Service Contracts affecting the Property on the Closing Date.
(H)
D&A-Wakeland Contract. Buyer confirms receipt of the D&A-Wakeland
Contract. Within the time periods provided in the D&A-Wakeland Contract, Seller shall deliver to Buyer any
and all other documents and materials pertaining to the D&A-Wakeland Contract, including, but not limited
to, all amendments, supplements, exhibits, closing statements, estimated closing statements, as well as any
and all due diligence material, including but not limited to all deliveries Sections 7.3 and 7.4 received by the
Seller under the D&A-Wakeland Contract or like documents concerning the Tie-Back Condition and Fill
Condition in connection therewith. In the event any documents or materials are delivered by Seller to Buyer
after the Contingency Date and the information set out in such documents or materials would have permitted
Buyer to terminate the Agreement on or before the Contingency Date, Buyer shall have the right, in its sole
and absolute discretion, to terminate this Agreement up until the Closing Date notwithstanding such earlier
election to the contrary.
(I)
Relevant Information. Seller certifies to Buyer that the Prior Due Diligence
constitutes all of Seller's relevant information with respect to the condition of the Property as of the date of
this Agreement. Buyer confirms receipt of the Prior Due Diligence. To the extent any additional applicable
documents and materials under this Paragraph 6 are received in connection with satisfaction of the Fill
Condition, Seller shall deliver to Buyer such other information which would be relevant to Buyer's analysis of
the Property, including, but not limited to any other material from the parties to the D&A-Wakeland Contract,
including how D&A acquired its interest in the Property, the Tie-Back Condition, the Fill Condition, or any
developments concerning the transactions contemplated therein. In the event any documents or materials are
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delivered by Seller to Buyer after the Contingency Date and the information set out in such documents or
materials would have permitted Buyer to terminate the Agreement on or before the Contingency Date, Buyer
shall have the right, in its sole and absolute discretion, to terminate this Agreement up until the Closing Date
notwithstanding such earlier election to the contrary.
With respect to and limited to the satisfaction of the Fill Condition and Tie-Back Condition, on or
before the Contingency Date, Buyer shall have approved the results of any and all inspections, investigations,
tests and studies (including, without limitation, investigations with regard to zoning, building codes and other
government regulations, architectural inspections, engineering tests, economic feasibility studies and soils,
seismic, environmental contamination and geologic reports) with respect to satisfaction of the Fill Condition
and Tie-Back Condition concerning the Property (including all structural and mechanical systems and
equipment) provided to Buyer by Seller and those separately and independently obtained by Buyer at its
election—the cost of any such inspections, tests and studies shall be borne by Buyer.
6.1.3 Representations, Warranties and Covenants of Seller. Seller shall have duly
performed each and every agreement to be performed by Seller in the D&A-Wakeland Contract and
hereunder and Seller's representations, warranties and covenants set forth in this Agreement shall be true and
correct in all material respects as of the date hereof and as of the Closing Date with the same force and effect
as if remade by Seller in a separate certificate at that time.
6.1.4 Seller's Deliveries. Seller shall have delivered the items described in
Paragraph 6.1.2, Paragraph 7.1 and Paragraph 8.
6.1.5 No Material Changes. At the Closing Date, there shall have been no material
adverse changes in the physical or financial condition of any portion of the Property.
6.1.6 Title Insurance. As of the Close of Escrow, the Title Company shall have
issued or shall have committed to issue the Title Policy, as defined hereinbelow, to Buyer.
6.1.7 Estoppel Certificate. Buyer shall have received prior to the Closing Date an
estoppel certificate with respect to the Tenant Leases or Service Contracts, if any, in the form of, and upon the
terms contained in, Exhibit "B" attached hereto
("Estoppel Certificate"),
dated not more than thirty (30) days
prior to the Closing Date, duly executed by Seller. Seller hereby approves the form of Exhibit "B" attached
hereto, and shall deliver the original fully executed Estoppel Certificate to Buyer prior to the Closing Date.
6.1.8 Expected Condition of Property on the Closing Date. As a condition to the
Close of Escrow, the repair work performed by D&A on the Property shall be sufficient to bring the Property
to the following condition to the satisfaction of Buyer: (i) all soil brought to the Property and used for re-
filling the excavated Property shall be Clean Soil as certified by a soils engineer acceptable to Buyer; (ii) to
at-grade elevation of all property surrounding the Property within 1/10 of a foot of the at-grade level of
average elevation of all surrounding property and approximately at the level or close to the natural state prior
to the excavation of the Property by the prior owners of the Property and in strict compliance with all
Licenses and Permits issued in connection with the Fill Condition and approved by the appropriate Authority,
and generally in adherence to the refill, fill, and compacting plan established by a licensed soils engineer or
like professional and within reasonable scope of a refilling plan certified by such engineer or professional
much like that contained in the Review and Evaluation Report for Former Atmosphere Site Shoring bearing
project number 09076 prepared by Flores Lund Consultants, as amended November 16, 2009; (iii) with
agreements, substantially in the same form as attached in Exhibit "F," signed by all surrounding property
owners confirming that tie-backs beneath the surface of adjoining land to the Property may remain in place
beneath surrounding property with such temporary licenses to enter and monitor the land adjacent to the
Property during the satisfaction of the Fill Condition. The re-filling of the Property shall be completed with
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licensed and bonded contractors with all insurance requirements required by the Licenses and Permits and the
Authorities and completed in such a fashion that installation of temporary rental perimeter fencing to be
installed by Seller at such time mutually agreed upon by the parties but in no event leaving the Property in
such a state that may constitute an unattended nuissance or public health and safety hazard. Further, the
parties agree that the condition of the Property is to be such that Buyer may contract for installation of all
necessary public improvements and paving for a parking lot with all necessary and appropriate public
improvements and lighting without having to grade for stormwater drainage or provide for erosion control in
the interim. The condition of the Property at the Close of Escrow shall be certified by Seller's engineer and
identify satisfaction of all necessary Licenses and Permits and requirements of Buyer using a certification, in
substantially the same form of Certification of Engineer attached hereto as Exhibit "G." For information, and
as an illustrative example only and subject to Paragraph 20 and its subparagraphs, the Review and Evaluation
Report for Former Atmosphere Site Shoring bearing project number 09076 prepared by Flores Lund
Consultants, as amended November 16, 2009, contains a refilling plan showing the same grad east to west
next to an adjacent publicly-owned structure with a slight grading westerly towards Fourth Avenue showing
positive drainage and to prevent ponding on the Property. Buyer shall have the right, prior to the Close of
Escrow, to inspect and verify that the work performed by D&A satisfies the requirements of this Paragraph
6.1.8. Buyer's Executive Director will provide Seller and Escrow Holder with written notice, in the form of a
closing estoppel certificate, confirming that, Buyer determined, in its discretion, that the Fill Condition and
Tie-Back Condition have been satisfied pursuant to the terms of this Agreement.
The conditions set forth in this Paragraph 6.1 are solely for the benefit of Buyer and may be waived
only by Buyer in writing to Seller. Buyer shall at all times have the right to waive any condition. The waiver
by Buyer of any condition shall not relieve Seller of any liability or obligation with respect to any
representation, warranty, covenant or agreement of Seller. All approvals or disapprovals given by Buyer
under this Paragraph 6.1 shall be in Buyer's sole and absolute discretion and in writing and the failure of
Buyer to approve any matter requiring its approval under this Paragraph 6.1 by the time therefor shall be
deemed approval thereof by Buyer, except as otherwise expressly provided. Neither Seller nor Buyer shall
act or fail to act for the purpose of permitting or causing any condition to fail (except to the extent Buyer, in
its own discretion, exercises its right to disapprove any such items or matters). Seller also agrees to comply
with any and all provisions of the D&A-Wakeland Contract and diligently perform to assure a prompt closing
of the same to assure a concurrent closing on the Closing Date. Buyer acknowledges Seller does not have
possession of the Property but expects Seller to exercise the diligence of a future developer proposing an
exclusive negotiation agreement for up to two years concerning a development on the Property.
6.2 Conditions Precedent to Seller's Obligations. The Close of Escrow and Seller's
obligations with respect to the transaction contemplated by this Agreement are subject to (A) consummation
and closing of the D&A-Wakeland Contract, (B) Buyer's delivery to Escrow Holder on or before the Closing
Date, for disbursement as provided herein, of the Purchase Price, and the documents and materials described
in Paragraph 7.2, (C) satisfaction of the Fill Condition, and (D) satisfaction of the Tie-Back Condition.
6.3 Concurrent C losing Date and Close of Escrow with the D&A-W akeland
Contract. The Closing Date and Close of Escrow in this Agreement shall occur immediately following
conveyance of the Property to the Seller under the D&A-Wakeland Contract. The Closing Date shall coincide
with the closing date, as defined in paragraph 4.1(d) of the D&A-Wakeland Contract. The Close of Escrow of
this Agreement shall coincide with the close of escrow defined in paragraph 2.5 of the D&A Wakeland
Contract. If and as appropriate, the parties hereto agree to enter into such supplemental joint escrow
instructions with D&A to facilitate a back-to-back concurrent closing of this Agreement with the D&A-
Wakeland Contract. Notwithstanding the foregoing, the Close of Escrow shall not be after the Closing Date.
6.4
Prohibition Against Amending, Supplementing , or Delaying Consummation of
D&A-Wakeland Contract without Buyer Consent. Seller shall not amend, supplement, or otherwise alter the
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D&A-Wakeland Contract without the written consent of the Buyer. Seller further agrees to take all necessary
steps to close the escrow in the D&A-Wakeland Contract and refrain from any activity which would delay the
close of the D&A-Wakeland Contract. Buyer would agree to review proposals for any revision to the D&A-
Wakeland Contract that are necessary to comply with Paragraph 6.1.8 of this Agreement.
6.5 Failure of Conditions to Close of Escrow. In the event any of the conditions set forth
in Paragraphs 6.1 or Paragraph 6.2 are not timely satisfied or waived, for a reason other than the default of
Buyer or Seller under this Agreement:
6.5.1 This Agreement, the Escrow and the rights and obligations of Buyer and
Seller shall teiminate, except as otherwise provided herein;
6.5.2 Escrow Holder is hereby instructed to promptly return to Buyer all funds,
accrued interest, and documents deposited by Buyer into Escrow which are held by Escrow Holder on the
date of said termination; and
6.5.3 Escrow Holder is hereby instructed to promptly return to Seller all funds and
documents deposited by Seller into Escrow which are held by Escrow Holder on the date of said termination.
6.6 Cancellation Fees and Expenses. In the event the Escrow terminates because of the
nonsatisfaction of any condition precedent for a reason other than the default of Buyer or Seller under this
Agreement, the cancellation charges required to be paid by and to Escrow Holder and the Title Company shall
be shared equally by Buyer and Seller.
7.
Deliveries to Escrow Holder.
7.1 By Seller. Seller hereby covenants and agrees to deliver or cause to be delivered to
Escrow Holder on or prior to the Closing Date the following instruments and documents, the delivery of each
of which shall be a condition precedent to the Close of Escrow for the benefit of Buyer.
7.1.1 Grant Deed. Seller shall deliver to Escrow Holder a Grant Deed
("Grant
Deed"),
duly executed and acknowledged in recordable form by Seller, conveying the Property to Buyer
subject only to the Approved Title Conditions. The Grant Deed shall be in the form of, and upon the terms
contained in Exhibit "C" attached hereto.
7.1.2 General Assignment and Bill of Sale. Seller shall deliver to Escrow Holder
an assignment and bill of sale
("General Assignment"),
duly executed by Seller, assigning to Buyer all of
Seller's right, title and interest in and to all Licenses and Plans and Records and Plans, all Personal Property
and all Service Contracts, if any, approved by Buyer on or before the Contingency Date. The General
Assignment shall be in the form of, and upon the terms contained in, Exhibit "D" attached hereto.
7.1.3 Non-Foreign Certification. Seller shall deliver to Escrow Holder a
certification duly executed by Seller under penalty of perjury in the form attached hereto as Exhibit "E"
("Non-Foreign Entity Certification")
certifying that Seller is not a "foreign person" as defined in
Section 1445 of the Internal Revenue Code of 1986, as amended.
7.1.4 Form 593-C. Seller shall deliver to Escrow Holder a Withholding Exemption
Certificate, Form 593-C, or in the event that the Seller is a non-California resident, a certificate issued by the
California Franchise Tax Board, pursuant to Revenue and Taxation Code Sections 18662, stating either the
amount of withholding required from Seller's proceeds or that Seller is exempt from such withholding
requirement (the "Form
593") duly executed by Seller.
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7.1.5 Proof of Authority of Seller. Seller shall deliver to Escrow Holder such
proof of Seller's authority and authorization to enter into this Agreement and the D&A-Wakeland Contract
and consummate the transactions contemplated thereby, and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Seller to act
for and bind Seller as may be reasonably required by Title Company and/or Buyer. Such proof includes, but
is not limited to receipt by Buyer of the following foimation or organizational documents of Seller:
(A)
All articles, bylaws, resolutions, and consents, and amendments thereto of
Seller
("Corporate Formation Documents"),
including evidence of domestic incorporation and good
standing certificates with the California Secretary of State;
(B)
All other Corporate Formation Documents, partnership agreements, limited
partnership agreements, limited liability operating agreements, and the respective evidence of formation from
the appropriate Secretary of State for any entity signing on behalf of the Seller; and
(C)
Evidence of authority, by way of corporate resolution or unanimous written
consent, or otherwise, indicating the Seller has authorized the transaction contemplated in this Agreement.
7. 1 .6 Proof of Authority of D&A Semi-Annual Mortgage Fund III, L.P. It shall be
a condition to closing that D&A shall have delivered to Escrow Holder such evidence of authority of D&A
Semi-Annual Mortgage Fund III, L.P., or its authorized agent(s), including but not limited to Asset Managers,
Inc., and authorization to enter into the D&A-Wakeland Contract and give the grant deed to Seller to enable
consummation of the transaction contemplated by this Agreement, and such proof of the power and authority
of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of D&A
Semi-Annual Mortgage Fund III, L.P. to act for and bind D&A Semi-Annual Mortgage Fund III, L.P. as may
be reasonably required by Title Company.
7.1.7 Lien Affidavits. Seller shall deliver to Escrow Holder any owner's
statements or lien affidavits as may be reasonably requested by the Title Company to issue the Title Policy.
7.1.8 Tie-Back Condition documentation. It shall be a condition to closing that
D&A shall have delivered to Escrow Holder, or as agreed upon with Buyer, all tie-back agreements, in
substantially the same foi
in as approved by Buyer as attached in Exhibit "F," and obtained for satisfaction of
the Tie-Back Condition.
7.1.9 Certification of Engineer and Fill Condition. It shall be a condition to
closing that D&A shall have delivered to Escrow Holder, or as agreed upon with Buyer, the Certification of
Engineer, in substantially the same form as approved by Buyer as attached in Exhibit "G," and obtained for
satisfaction of the Fill Condition.
7.2 By Buyer. Buyer hereby covenants and agrees to deliver or cause to be delivered to
Escrow Holder on or prior to the Closing Date the following instruments and documents, the delivery of each
of which shall be a condition precedent to the Close of Escrow for the benefit of Seller.
7.2.1 Purchase Price. Buyer shall deliver to Escrow Holder the Purchase Price in
accordance with Paragraph 3;
7.2.2 Grant Deed. Buyer shall deliver to Escrow Holder a counterpart acceptance
of the Grant Deed, duly executed and acknowledged in recordable form by Buyer, acknowledging and
accepting the conveyance of the Property from Seller subject only to the Approved Title Conditions. The
Grant Deed shall be in the form of, and upon the terms contained in, Exhibit "C" attached hereto.
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7.2 .3 General Assignment. Buyer shall deliver to Escrow Holder the General
Assignment duly executed by Buyer;
7.2.4 Prorations. Buyer shall deliver to Escrow Holder the amount due to Seller, if
any, after the prorations are computed in accordance with Paragraph 11; and
7.2 .5 Preliminary Change of Ownership Report. Buyer shall deliver to Escrow
Holder a completed Preliminary Change of Ownership Report
("PCOR")
duly executed by Buyer.
7.2 .6 Proof of Authority. Buyer shall deliver to Escrow Holder such proof of
Buyer's authority and authorizat ion to enter into this Agreement and consummate the transact ion
contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or
delivering any instruments, documents or certificates on behalf of Buyer to act for and bind Buyer as may be
reasonably required by Title Company and/or Seller.
8.
Deliveries to Buyer Upon Close of Escrow. Seller shall deliver possession of the Property to
Buyer upon the Close of Escrow (unless otherwise provided). Further, Seller hereby covenants and agrees to
deliver to Buyer, on or prior to the Closing Date, the following items, the delivery of each of which shall be a
condition to the performance by Buyer of its obligations under the terms of this Agreement:
8.1 Records and Plans and Licenses and Permits. Seller shall deliver to Buyer originals
of the Records and Plans and Licenses and Permits, including any concerning the Tie-Back and Fill Condition
received by the Seller or Seller's counsel;
8.2
Tenant Leases. Originals of all of the Tenant Leases, if any, or confirmation on an
Estoppel Certificate that none exist on the Closing Date.
8.3
Service Contracts. Originals of all Service Contracts, if any, or confirmation on an
Estoppel Certificate that none exist on the Closing Date.
8.4
Personal Property. Possession of the Personal Property, if any, or confirmation on an
Estoppel Certificate that none exist on the Closing Date.
8.5 Keys. Seller shall deliver to Buyer keys, if any, to all locks, deadbolt gate entry
doors, or like entrance doors or temporary rental fencing to the Property and any Improvements, which keys
shall be properly tagged for identification;
9.
Title Insurance. At the Close of Escrow, Seller shall cause the Title Company to issue to
Buyer an ALTA Extended Coverage 1992 or 2006 Form Owner's Policy of Title Insurance with the
following CLTA endorsements, 100 (comprehensive, modified for owners and covering future
improvements), 100.6 (encroachment loss, concerning covenants on land and identified in Paragraph 6.1.1),
101.1 (mechanic's lien, assuring no such liens under the Fill Condition exist), 103.5 (water rights), 103.7
(abutting public street, modified to assure access), and 116.4 (contiguity) or as subsequently agreed upon
between Title Company and Buyer showing fee title to the Property vested in Buyer subject only to the
Approved Title Conditions, which may include the conditionally approved exceptions under Paragraph 6.1.1
so long as the conditions identified by Buyer therein are satisfied
("Title Policy").
The Title Policy shall be
issued with liability in an amount equal to the Purchase Price insuring fee title in the Property to Buyer. The
Property is described as parcels 1 through 3 inclusive of the Title Report. Seller shall be responsible for
paying the Title Policy premium associated with the Title Policy.
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10.
Costs and Expenses. If the transaction contemplated by this Agreement is consummated,
then upon the Close of Escrow Seller shall pay (A) all recordation, transfer or sales tax, including without
limitation, taxes on the Grant Deed, taxes required to be paid in connection with the recording of the Grant
Deed, and documentary stamp or transfer taxes, (B) all costs of recording any documents needed to clear
title, and all costs related to the release of disapproved title matters pursuant to Paragraph 6.1.1 above, (C)
fifty percent of all escrow fees and costs, and (D) Seller's share of prorations. If the transaction contemplated
by this Agreement is consummated, then upon the Close of Escrow Buyer shall pay (i) fifty percent of all
escrow fees and costs and (ii) Buyer's share of prorations. Buyer and Seller shall each pay all legal and
professional fees and fees of other consultants incurred by Buyer and Seller, respectively. All other costs and
expenses shall be allocated between Buyer and Seller in accordance with the customary practice in the
County. Seller confirms Buyer has no obligation and no responsibility for payment of any costs or expenses
related to the D&A-Wakeland Contract. Seller further confirms that Buyer is not responsible for any other
payment other than the Purchase Price, fifty percent of all escrow fees and costs, and Buyer's share of costs,
expenses and prorations approved by the Buyer on an estimated settlement statement dated on or about the
Closing Date.
11. Prorat ions.
11.1 General. All "rentals" (defined below), revenues and other income, if any, from the
Property, and real property taxes and operating expenses, if any, affecting the Property shall be prorated as of
the Close of Escrow. To the best of Seller's knowledge, there are no revenues or other income generated
from the Property; should this be the case on the Closing Date, Seller shall confirm this statement on the
Estoppel Certificate effective as of the Close of Escrow. For purposes of calculating prorations, Buyer shall
be deemed to be in title to the Property, and therefore entitled to the income and responsible for the expenses,
for the entire day of the Close of Escrow.
"Rentals",
as used herein, includes fixed monthly rentals,
additional rentals, percentage rentals, escalation rentals, retroactive rentals, operating cost pass throughs and
other sums and charges payable by Tenants under the Tenant Leases or any other entity required to issue
payment to the fee owner of the Property. Buyer acknowledges that it has no expectation that there will be
any Rentals, revenue or other income from the Property at the Close of Escrow.
11.2
Reserved.
11.3 Reserved.
11.4
Reserved.
11.5 Taxes and Assessments. All non-delinquent real estate taxes on the Property shall be
prorated as of the Close of Escrow based on the actual current tax bill obtained by Seller, but if such tax bill
has not yet been received by Seller by the Close of Escrow then the current year's taxes shall be deemed to be
one hundred two percent (102%) of the amount of the previous year's tax bill. All delinquent taxes and all
assessments, if any, on the Property shall be paid at the Close of Escrow from funds accruing to Seller. All
supplemental taxes billed after the Close of Escrow for periods prior to the Close of Escrow shall be paid
promptly by Seller.
11.6 Operating Expenses. All costs for operation of the Property, if any, including all
utility service charges for electricity, water, other utilities, common area maintenance, costs for temporary
rental fencing, or other expenses incurred in operating the Property that Seller customarily pays, and any other
costs incurred in the ordinary course of operation of the Property and not covered elsewhere in this Paragraph
11 shall be prorated on an accrual basis. Seller shall pay all such expenses that accrue prior to the Close of
Escrow and Buyer shall pay all such expenses accruing on the Close of Escrow and thereafter. To the extent
possible, Seller and Buyer shall obtain billings and meter readings as of the Close of Escrow to aid in such
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prorations. To the best of Seller's knowledge, there are no operations on the Property as of the Execution
Date; should this be the case on the Closing Date, Seller shall confirm this statement on the Estoppel
Certificate effective as of the Close of Escrow.
11.7
Reserved.
11.8 Service Contracts. Amounts payable under the Service Contracts approved by Buyer
pursuant to Paragraph 6.1.2(G), if any, above shall be prorated on an accrual basis. Seller shall pay all
amounts due thereunder which accrue prior to the Close of Escrow and Buyer shall pay all amounts accruing
on the Close of Escrow and thereafter. To the best of Seller's knowledge, there are no service contracts
affecting the Property; should this be the case on the Closing Date, Seller shall confirm this statement on the
Estoppel Certificate effective as of the Close of Escrow. The parties acknowledge temporary rental fencing
and ancillary service contracts in connection with the satisfaction of the Fill Condition may impact the
Seller's statement in the Estoppel Certificate.
11.9 Method of Proration. All prorations shall be made in accordance with customary
practice in the County, except as expressly provided herein. Escrow Holder shall be instructed by Buyer and
Seller to prepare a schedule of prorations prior to the Closing Date. Such prorations, if and to the extent
known and agreed upon as of the Close of Escrow, shall be paid by Buyer to Seller (if the prorations result in
a net credit to the Seller) or by Seller to Buyer (if the prorations result in a net credit to the Buyer) by
increasing or reducing the cash to be paid by Buyer at the Close of Escrow. Any such prorations not
determined or not agreed upon as of the Close of Escrow shall be paid by Buyer to Seller, or by Seller to
Buyer, as the case may be, in cash as soon as practicable following the Close of Escrow. A copy of the
schedule of prorations as agreed upon by Buyer and Seller shall be delivered to Escrow Holder at least three
(3) business days prior to the Closing Date.
12.
Disbursements and Other Actions by Escrow Holder. Escrow Holder shall promptly
undertake all of the following in the manner hereinbelow indicated.
12.1 Fund Distribution prior to the Close of Escrow. At or near the Contingency Date, the
Agreement will terminate under Paragraph 6 or Buyer will elect to deliver notice to Seller of approval of the
conditions set forth in Paragraph 6. In the event the Agreement terminates under the terms of Paragraph 6
prior to the Closing Date, Escrow Agent is instructed to return any and all funds deposited by the Buyer
including the Purchase Price along with any and all Closing Funds to Buyer without any consent required
from Seller.
12.2 Fund Distribution at the Close of Escrow. Unless superseded by such supplemental
joint escrow instructions given by D&A, Seller and Buyer, at the Close of Escrow, Escrow Holder shall
disburse the Closing Funds deposited with Escrow Holder by Buyer in payment of the Purchase Price as
follows:
12.2.1 deduct all items chargeable to the account of Seller pursuant to Paragraphs 9
and 10;
12 .2 .2 if, as the result of the prorations and credits pursuant to Paragraph 11,
amounts are to be charged to account of Seller, deduct the total amount of such charges;
12.2.3 disburse the balance of the Purchase Price to Seller promptly upon the Close
of Escrow; and
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12 .2 .4 disburse the remaining balance of the Closing Funds, if any, to Buyer
promptly upon the Close of Escrow.
12 .3 Recording. Escrow Holder shall deliver a completed PCOR to the appropriate
representative of the Official Records and cause the Grant Deed (with documentary transfer tax information to
be affixed after recording), the Deed of Trust and any other documents which the parties hereto may mutually
direct to be recorded in the Official Records and obtain conformed copies thereof for distribution to Buyer
and Seller.
12.4
Title Policy. Escrow Holder shall direct the Title Company to issue the Title Policy
to Buyer.
12.5 Disbursement of Documents to Buyer. Escrow Holder shall disburse to Buyer along
with a copy to Buyer's counsel, the General Assignment, the Estoppel Certificate, the Non-Foreign Entity
Certification, the Form 593, and any other documents (or copies thereof) deposited into Escrow by Seller
pursuant hereto.
12.6 Disbursement of Documents to Seller. Escrow Holder shall disburse to Seller copies
of the General Assignment, the Non-Foreign Entity Certification, the Form 593, along with copies of the
Grant Deed showing conformation of recording in the Official Records and any other documents (or copies
thereof) deposited into Escrow by Seller pursuant hereto.
13.
Seller's Representations and Warranties. In addition to any express agreements of Seller
contained herein, the following constitute representations and warranties of Seller to Buyer:
13.1
Representations Regarding Seller's Authority and Diligence.
13.1.1 Power. Following the closing of the D&A-Wakeland Contract and on the
Closing Date, Seller will be the owner in fee simple of the Property under the terms of the D&A-Wakeland
Contract and has the legal power, right and authority to enter into this Agreement and the instruments
referenced herein, and to consummate the transaction contemplated hereby.
13.1.2 Requisite Action. All requisite action (corporate, trust, partnership or
otherwise) has been taken by Seller in connection with the entering into this Agreement and the instruments
referenced herein, and the consummation of the transaction contemplated hereby. No consent of any partner,
shareholder, creditor, investor, judicial or administrative body, Authority or other party is required.
13.1.3 Individual Authority. The individuals executing this Agreement and the
instruments referenced herein on behalf of Seller and the partners, officers or trustees of Seller, if any, have
the legal power, right, and actual authority to bind Seller to the terms and conditions hereof and thereof.
13.1.4 Validity. This Agreement and all documents required hereby to be executed
by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance
with their terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium laws or
similar laws or equitable principals affecting or limiting the rights of contracting parties generally.
13.1.5 Tie-Back and Fill Condition Diligence. To the extent Seller had obligations
under the D&A-Wakeland Contract concerning the Tie-Back Condition and Fill Condition, that Seller
complied with and diligently worked towards satisfaction of those obligations.
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13.2
Representations and Warranties Pertaining to Real Estate, Legal Matters and
Documents.
13.2.1 Adverse Claims. To the best of Seller's knowledge, there are no pending,
threatened or contemplated actions, suits, arbitrations, claims or proceedings, at law or in equity, affecting the
Property or in which the Seller or D&A Semi-Annual Mortgage Fund III, L.P. are, or will be, a party by
reason of the ownership or former ownership of the Property, including, but not limited to, judicial, municipal
or administrative proceedings in eminent domain, alleged building code, health and safety or zoning
violations, personal injuries or property damages alleged to have occurred at the Property or by reason of the
condition or use of the Property.
13.2.2 Insolvency. No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened
against the Seller or, to the best of Seller's knowledge, D&A Semi-Annual Mortgage Fund III, L.P., nor are
any of such proceedings contemplated by the Seller or, to the best of Seller's knowledge, D&A Semi-Annual
Mortgage Fund III, L.P.
13.2.3 Governmental Regulations. To the best of Seller's knowledge, there are no
violations of Governmental Regulations relating to the Property. To the best of Seller's knowledge, the
Property was filled and compacted with all required Licenses and Permits. To the best of Seller's knowledge,
the condition of the Property and the Improvements, if any, on the Closing Date, are in conformance with all
Licenses and Permits and under applicable zoning and building laws and ordinances and the present uses
thereof are permitted conforming uses under applicable zoning and building laws and ordinances. To the best
of Seller's knowledge, the conveyance of the Property to Buyer will not violate any Governmental
Regulations and will include all rights necessary to permit continued compliance by the Property and
Improvements, if any, with all Governmental Regulations.
13.2 .4 Approvals. To the best of Seller's knowledge, all licenses, approvals,
permits and certificates, including any agreements in satisfaction of the Tie-Back Condition, from the
Authorities and private parties necessary for the fill, compacting, construction, development, alteration or
rehabilitation of the Property and any Improvements, or for the use and operation of the Property as it is
currently being used and operated were obtained prior to such fill, compacting, construction, development,
alteration, rehabilitation, use and operation, and are currently possessed by the Seller, and any Improvements
have been constructed, completed or modified in accordance with (A) all such approvals, licenses, permits
and certificates, (B) all Governmental Regulations, (C) all covenants, conditions, restrictions, easements and
agreements of any kind or nature affecting the Property, and (D) the plans and specifications delivered by
Seller to Buyer.
13.2.5 Assessments. Other than the amounts disclosed by the tax bills delivered to
Buyer by Seller and possible supplemental or escape assessments which may be levied by the County
Assessor after the date hereof, Seller has no knowledge of any other real property taxes which have been or
will be assessed against the Property for the current tax year. Seller has no knowledge of any special
assessments or charges which have been levied against the Property or which results from work, activities or
improvements done to the Property.
13.2.6 Mechanic's Liens. To the best of Seller's knowledge, Seller has no
knowledge of any liens, encumbrances, claims, covenants, conditions, restrictions, easements, rights of way,
options, judgments or other matters affecting the Property, except as disclosed by the Title Documents.
13.2 .7 Accuracy of Materials. All instruments, documents, lists, schedules and
items delivered to Buyer by Seller pursuant to this Agreement will fairly present the information set forth in a
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manner that is not misleading and will be true, complete and correct in all respects on the date of delivery and
upon the Close of Escrow, as they may be updated, modified or supplemented in accordance with this
Agreement.
13.2.8 Personal Property. If there is any Personal Property listed in the Inventory,
such Personal Property is located at the Property or with Seller and is all of the personal property used in the
operation of the Property and the Improvements, other than personal property owned by Tenants, if any
Tenants exist, or under any Service Contract, if any Service Contracts exist.
13.2.9 Occupancy Agreements. To the best of Seller's knowledge, there are no
leases, licenses, subleases, occupancies or tenancies in effect pertaining to the Property and Seller has no
knowledge of any oral agreements with anyone, including Tenants, if any Tenants exist, with respect to the
occupancy of the Property.
13.2.10 D&A-Wakeland Contract. Seller has provided true, correct, and complete
copies of all documents pertaining to the D&A-Wakeland Contract in Seller's possession, including, but not
limited to all documents in satisfaction of the Fill Condition and Tie-Back Condition, as amended, and all due
diligence materials provided to and obtained by Seller in connection therewith.
13.2.11 Tie-Back and Fill Condition Diligence. Seller assures Buyer that Seller will
deliver true, correct, and complete copies of all documents Seller receives from D&A pertaining to
satisfaction of the Tie-Back Condition and Fill Condition.
Seller's representations and warranties made in this Paragraph 13 shall be continuing and shall be true
and correct as of the Close of Escrow with the same force and effect as if remade by Seller in a separate
certificate at that time. The truth and accuracy of Seller's representations and warranties made herein shall
constitute a condition for the benefit of Buyer to the Close of Escrow (as elsewhere provided herein) and shall
survive and shall not merge into, the Close of Escrow and the recording of the Grant Deed in the Official
Records for five years after the Closing Date with the same force and effect as if remade by Seller in a
separate certificate at that time.
14.
Seller's Covenants Regarding Operation of the Property Through the Close of Escrow.
14.1 Existing Operations. Seller hereby agrees, through and including the Close of
Escrow and at the Seller's sole cost and expense, to keep Buyer timely advised concerning the satisfaction of
the Tie-Back and Fill Conditions to the extent permitted under the D&A-Wakeland Contract.
14.2 New Leases. Seller will not hereafter enter into nor modify, extend or otherwise
change any of the terms, covenants or conditions of the Tenant Leases, if any, or enter into new leases or any
other obligations or agreements affecting the Property, without the prior written consent of Buyer.
14.3 Service Contracts. Seller will not hereafter enter into nor extend, renew, modify or
replace any of the Service Contracts or enter into new Service Contracts or any other obligations or
agreements affecting the Property. The temporary rental fencing entered into in connection with the Fill
Condition will not be a violation of this provision.
14.4 Additional Liens. Seller will not, without the prior written consent of Buyer, convey
any interest in the Licenses and Permits, the Records or Plans or any of the other Property, and Seller will not
subject the Property to any additional liens, encumbrances, covenants, conditions, easements, rights of way or
similar matters after the date of this Agreement which will not be eliminated prior to the Close of Escrow.
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14.5
Alterations. Seller will not make any alterations to the Property. Alterations by
D&A necessary to satisfy the Fill Condition will not be a violation of this Covenant.
14.6 Invoices. Seller has paid or will pay in full, prior to the Close of Escrow, all bills and
invoices that are received by Seller prior to the Close of Escrow for labor, goods, materials and services of
any kind relating to the Property incurred by Seller, provided however, that nothing in this Paragraph 14.6
shall obligate Seller to pay any charges, bills, invoices or costs related to the Property that are not the
obligation of the Seller under the D&A-Wakeland Contract. Seller acknowledges Buyer is not responsible for
payment of any invoices for labor, goods, materials and services of any kind relating to the Property,
including utility charges or temporary rental fencing, relating to the period prior to the Close of Escrow.
14.7 Changes in Circumstances. Seller shall promptly notify Buyer of any change in any
condition with respect to the Property of which Seller has knowledge other than changes to satisfy the Fill
Condition and will promptly notify Buyer of any event or circumstance which makes any representation or
warranty of Seller under this Agreement or the D&A-Wakeland Contract untrue or misleading in any material
respect, or any covenant of Buyer under this Agreement incapable or less likely of being performed, it being
understood that the Seller's obligation to provide notice to Buyer shall in no way relieve Seller of any liability
for a breach by Seller of any of its representations, warranties or covenants under this Agreement.
14.8 Monitoring. To the maximum extent possible under the D&A-Wakeland Contract,
Seller shall permit Buyer, CCDC or any of Buyer's representatives, assigns, agents, consultants, or
subconsultants to accompany Seller or any of Seller's representatives, assigns, agents, consultants, or
subconsultants to monitor and inspect the manner in which the Tie-Back and Fill Conditions are satisfied.
The parties acknowledge Section 4.2(f)(viii) permits, among other things, CCDC monitoring of Property
during satisfaction of the Fill Condition.
15.
Buyer's Representations and Warranties. In addition to any express agreements of Buyer
contained herein, the following constitute representations and warranties of Buyer to Seller:
15.1
Power. Buyer has the legal power, right and authority to enter into this Agreement
and the instruments referenced herein, and to consummate the transaction contemplated hereby.
15.2 Requisite Action. All requisite action (corporate, trust, partnership or otherwise) has
been taken by Buyer in connection with the entering into this Agreement and the instruments referenced
herein, and the consummation of the transaction contemplated hereby. No other consent of any partner,
shareholder, creditor, investor, judicial or administrative body, Authority or other party is required.
15.3 Authority. The individuals executing this Agreement and the instruments referenced
herein on behalf of Buyer have the legal power, right and actual authority to bind Buyer to the terms and
conditions hereof and thereof.
15.4 Validity. This Agreement and all documents required hereby to be executed by
Buyer are and shall be valid, legally binding obligations of and enforceable against Buyer in accordance with
their terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium laws or similar
laws or equitable principals affecting or limiting the rights of contracting parties generally.
15.5 Prohibited Transactions. Seller is not a person or entity described by Section 1 of the
Executive Order (No. 13,224) Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to commit, or support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001), and, to the best of
Seller's knowledge, Seller does not engage in any dealings or transactions, and is not otherwise associated,
with any such person or entities.
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Buyer's representations and warranties made in this Paragraph 15 shall be continuing and shall be
true and correct as of the Close of Escrow with the same force and effect as if remade by Buyer in a separate
certificate at that time. The truth and accuracy of Buyer's representations and warranties made herein shall
constitute a condition for the benefit of Seller to the Close of Escrow and shall survive and shall not merge
into the Close of Escrow or the recordation of the Grant Deed in the Official Records for five years after the
Closing Date with the same force and effect as if remade by Buyer in a separate certificate at that time.
16. Condemnation and Destruction.
16.1 Eminent Domain or Taking. If, prior to the Close of Escrow, any material portion of
the Property is taken or if the access thereto or available parking area therefor is materially reduced or
restricted or reduced such that the Property as it is currently used is not in compliance with zoning
requirements or if any of the rentable square footage of the Improvements is taken, by eminent domain or
otherwise (or is the subject of a pending, threatened or contemplated taking which has not been
consummated) by any governmental body other than the Buyer, Seller shall, as soon as Seller has knowledge
of such fact, notify Buyer, in writing, of such fact. In such event, Buyer shall have the option, in its sole and
absolute discretion, to terminate this Agreement upon written notice to Seller given not later than ten (10)
days after receipt of Seller's notice. If this Agreement is so terminated, the provisions of Paragraph 6.5 and
6.6 shall govern. If Buyer does not exercise this option to terminate this Agreement, or if there has not been a
material taking by eminent domain or otherwise to give rise to such option, neither party shall have the right
to terminate this Agreement, but the Seller shall assign and turn over, and the Buyer shall be entitled to
receive and keep, all awards for the taking by eminent domain which accrue to Seller and the parties shall
proceed to the Close of Escrow pursuant to the terms hereof, without modification of the terms of this
Agreement and without any reduction in the Purchase Price. Unless or until this Agreement is terminated,
Seller shall take no action with respect to any eminent domain proceeding without the prior written consent of
Buyer.
16.2 Fire or Casualty. Prior to the Close of Escrow, and notwithstanding the pendency of
this Agreement, the entire risk of loss or damage by earthquake, flood, landslide, fire or other casualty shall
be borne and assumed by Seller, except as otherwise provided in this Paragraph 16.2. If, prior to the Close of
Escrow, any part of the Improvements is damaged or destroyed by earthquake, flood, landslide, fire or other
casualty, Seller shall, as soon as Seller has knowledge of such fact, notify Buyer in writing of such fact.
If such damage or destruction is "material", Buyer shall have the option to terminate this Agreement
upon written notice to the Seller given not later than ten (10) days after receipt of Seller's notice. For
purposes hereof, "material"
shall be deemed to be (A) any uninsured damage or destruction to the Property
or (B) any insured damage or destruction where the cost of repair or replacement is estimated to be Fifty
Thousand and No/100 Dollars ($50,000.00) or more or shall take more than one hundred twenty (120) days to
repair, in Buyer's good faith judgment, provided, however, in the case of uninsured damage or destruction,
Seller may, but shall not be obligated to, at Seller's option, elect to repair such damage and destruction and
keep this Agreement in full force and effect so long as such repair can be and is completed by Seller prior to
the Closing Date. If this Agreement is terminated pursuant to this Paragraph 16.2 , the provisions of
Paragraphs 6.5 and 6.6 shall govern. If Buyer does not exercise this option to terminate this Agreement, or if
the casualty is not material, neither party shall have the right to terminate this Agreement but Seller shall
assign and turn over, and Buyer shall be entitled to receive and keep, all insurance proceeds payable to it with
respect to such destruction (which shall then be repaired or not at Buyer's option and cost), plus Seller shall
pay over to Buyer an amount equal to the deductible amount with respect to the insurance and the parties shall
proceed to the Close of Escrow pursuant to the terms hereof without modification of the terms of this
Agreement and without any reduction in the Purchase Price. If Buyer does not elect to terminate this
Agreement by reason of any casualty, Buyer shall have the right to participate in any adjustment of the
insurance claim. Seller acknowledges Buyer may terminate this Agreement for Seller's failure to procure
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insurance for the Property. Buyer acknowledges that as of the time of execution of this Agreement Seller
does not yet have fee title to the Property. Buyer acknowledges that Seller has no insurance covering the
Property, and Seller acknowledges that the foregoing provisions of this Paragraph 16.2 give Buyer the right to
terminate this Agreement in the event of uninsured damage or destruction unless Seller elects to repair the
damage or destruction.
17. Indemnificat ion.
17.1 Claims Against Seller and Indemnification of Buyer. Seller hereby agrees to protect,
indemnify and defend Buyer, its agent, CCDC, the City, and their respective officers, employees, contractors,
and agents against, and to hold Buyer, CCDC, the City, and their respective officers, employees, contractors,
and agents harmless from, all claims, demands, losses, damages, costs and expenses, including without
limitation actual legal fees and disbursements, incurred by Buyer, CCDC, the City, and their respective
officers, employees, contractors, and agents relating to the Property which (A) result from the gross
negligence or willful misconduct of Seller; (B) result from acts, occurrences or matters the existence or
occurrence of which constitute a violation of one or more representations, warranties or covenants of Seller
hereunder, and are not a breach by Buyer of obligations or liabilities expressly assumed by Buyer hereunder;
provided, however, nothing contained herein shall obligate Seller with respect to, or negate or modify any
liability of Buyer for, any breach of Buyer's representations, warranties and covenants in this Agreement; (C)
result or arise from any claim or allegation for any real estate brokerage commission, referral fees, or like
commission or service fees due brokers or consultants in the D&A-Wakeland Contract or this Agreement; or
(D) arise or result from a breach by Seller of any of its agreements or covenants herein or in the D&A-
Wakeland Contract.
17.2 Hazardous Materials Indemnification. To the fullest extent permitted bylaw, Seller
covenants and agrees with the Buyer that neither Buyer nor its officers, elected and/or appointed officials,
employees, agents or counsel shall be liable for any damage or liability of any kind or for any injury to or
death of persons or damage to property of Buyer, its successors or assigns or any other person from any cause
whatsoever directly or indirectly related to or arising out of or proximately caused by any action or failure to
act by Seller or its officers, members, employees, agents, consultants, contractors, representatives, or counsel
with respect to the presence or clean-up of Hazardous Materials on, in or under the Property on the Close of
Escrow. Seller shall, on a joint and several basis, pay for, defend (with counsel approved by the Buyer),
indemnify and save Buyer, its officers, elected and/or appointed officials, employees, agents, counsel,
successors or assigns harmless against and from any real or alleged claims, costs, liabilities and expense
(including court costs and reasonable attorneys' fees) directly or indirectly arising out of, or proximately
caused by any action, failure to act or condition in connection with the presence or clean-up of Hazardous
Materials on, in or under the Property on the Close of Escrow.
17.3 Indemnification of Seller. Buyer hereby agrees to protect, indemnify and defend
Seller against, and to hold Seller harmless from, all losses, damages, costs and expenses, including without
limitation actual legal fees and disbursements, incurred by Seller relating to the Property which (A) arise or
result from acts, occurrences or matters that take place after the Close of Escrow; provided, however, nothing
contained herein shall obligate Buyer with respect to, or negate or modify any liability of Seller for, any
breach of Seller's representations, warranties and covenants in this Agreement, or (B) arise or result from a
breach by Buyer of its agreements, covenants, representations or warranties herein, or (C) arise after the Close
of Escrow under Approved Title Conditions or other obligations expressly assumed by Buyer.
18.
Notices. Unless otherwise expressly provided herein, all notices or other communications
required or permitted hereunder shall be in writing, and shall be personally delivered (including by means of
professional messenger service) or sent by nationally recognized overnight courier or by facsimile (when
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promptly followed by notice sent by deposit in the United States mail), and shall be deemed received upon
the date of receipt thereof.
To Buyer:
With a copy to:
With a copy to:
To Seller:
With a copy to:
REDEVELOPMENT AGENCY OF THE CITY OF
SAN DIEGO c/o Centre City Development Corporation
Attn: Mr. Jeff Graham and Ms. En
i Kameyama
401 B Street, Suite 400
San Diego, California 92101
Office of General Counsel
1200 Third Avenue, Suite 1100
San Diego, California 92101
Attn: Krishna Jayaram, Esq.
Kane, Ballmer & Berkman
515 South Figueroa Street, Suite 1850
Los Angeles, California 90071
Attn: Murray 0. Kane, Esq. and Gustavo Lamanna, Esq.
Facsimile No.: (213) 625-0931
Wakeland Housing & Development Corp.
1230 Columbia Street, Suite 950
San Diego, California 92101
Attn: Mr. Kenneth L. Sauder, President
Facsimile No.: (619) 235-5386
Pillsbury Winthrop Shaw Pittman LLP
12255 El Camino Real, Suite 300
San Diego, California 92101
Attn: Linda K. Stanwood, Esq.
Facsimile No.: (619) 819-4082
Notice of change of address shall be given by written notice in the manner detailed in this Paragraph 18.
19. No Real Estate Brokers or Commissions. Seller represents and warrants to Buyer and Buyer
represents to Seller there are no real estate brokers entitled to a brokerage fee in connection with the
Agreement. Buyer shall not be liable for any real estate commissions, brokerage fees, finders fees, referral
fees to any broker, sales representative, or claimant in connection with the Agreement or the D&A-Wakeland
Contract. The Seller agrees to defend and hold the Buyer harmless from any claim by any broker, sales
representative, agent, or finder claimant retained by Seller or any party to the D&A-Wakeland Contract.
Buyer represents and warrants to Seller, that no broker, sales person, agent or finder has been engaged by
Buyer in connection with any of the transactions contemplated by this Agreement, or to its knowledge is in
any way connected with any of such transactions. In the event of any such claims for brokers' or finders'
fees or commissions in connection with the negotiation, execution or consummation of this Agreement, then
Buyer shall indemnify, save harmless and defend Seller from and against claims for brokers' or fmders' fees
or commissions from Buyer if they shall be based upon any statement, representation or agreement made by
Buyer, and Seller shall indemnify, save harmless and defend Buyer if such claims shall be based upon any
statement, representation or agreement made by Seller. Seller represents and warrants to Buyer, that no
broker, sales person, agent or finder has been engaged by Seller in connection with any of the transactions
contemplated by the Agreement, D&A-Wakeland Contract, or ancillary contract involving the Property. In
the event any employee or agent of Seller is licensed by the California Department of Real Estate, Seller
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confirms Seller, employee or their agents, are not entitled to any real estate brokerage commissions from
Buyer.
20. Required Actions of Buyer and Seller. Buyer and Seller agree to execute all such instruments
and documents and to take all actions pursuant to the provisions hereof in order to consummate the purchase
and sale herein contemplated and shall use their commercially reasonable best efforts to accomplish the Close
of Escrow in accordance with the provisions hereof. Seller further agrees to execute all such instruments and
documents pertaining to the D&A-Wakeland Contract and to take all actions pursuant to the provisions
thereof in order to consummate the purchase and sale contemplated therein and shall use their commercially
reasonable best efforts to accomplish the close of escrow described in Section 2.5 of the D&A-Wakeland
Contract .
20.1 Requests for Approval or Action by Buyer from Seller. Seller is in the process of
proposing the future development of the Property as a mixed-use development predominantly comprised of
affordable housing under the provisions of the Centre City Redevelopment Plan, as amended. Buyer has
furnished certain due diligence performed on its behalf, the Flores Lund Consultant's Review and Evaluation
Report amended as of November 16, 2009 as well as the Wade & Associates report dated October 6, 2009.
20.2 Buyer approves the (i) form of tie-back easement agreement with temporary license
attached hereto as Exhibit "F" to be procured by D&A under Section 4.2(e) of the D&A-Wakeland Contract
concerning the Tie-Back Condition and (ii) form of certification by engineer attached hereto as Exhibit "G" to
be procured by D&A under Section 11.19(iii) of the D&A-Wakeland Agreement concerning the Fill
Condition. So long as the documents submitted in satisfaction of the Tie-Back and Fill Conditions are in
substantially the same form as Exhibits "F" and "G," respectively, Buyer will approve the proposed tie-back
easement agreement and temporary license and certificate of engineer. The Executive Director of the Buyer
has discretion to approve changes to Exhibits "F" and "G" that do not substantially change the form of tie-
back easement agreement with temporary license and certification of engineer attached to this Agreement on
the Execution Date. Buyer's Executive Director will provide Seller and Escrow Holder with written notice, in
the form of a closing estoppel certificate, confirming that, Buyer determined, in its discretion, that the Fill
Condition and Tie-Back Condition have been satisfied pursuant to the terms of this Agreement.
20.3 Approvals to such forms, whether provided or not, represent reasonable measures to
assure the proper refilling of the previous excavation of the Property and abatement of a public health and
safety condition on the Property as well as a prudent and reasonable due diligence measures under this
Agreement. Seller further agrees, to the greatest extent possible under the D&A-Wakeland Contract, to
permit Buyer, its agents, consultants, or assigns to monitor the progress of the Repair of the Property
described in Section 4.2(f) of the D&A-Wakeland Contract and assure satisfaction of the Fill and Tie-Back
Conditions are prosecuted under the terms agreed upon under the D&A-Wakeland Contract.
20.4 Such actions or approvals, whether or not provided or undertaken, by Buyer: (a) do
not constitute an endorsement, requirement or even suggestion that the parties to the D&A-Wakeland
Contract use any consultants of Buyer or CCDC or accept any of the work product generated by consultants
to Buyer or CCDC; (b) do not represent a warranty or guarantee of any consultant reports generated for or on
behalf of Buyer or CCDC, including the reports disclosed and referenced above; (c) are not a statement of
accuracy or reliability of any reports generated by Buyer, CCDC or their consultants or agents; (d) are not an
approval of the City or its agents, employees, or assigns; (e) do not provide any approval under the Centre
City Redevelopment Project or Plan, as amended; (f) do not confer any rights to the Seller under the Centre
City Redevelopment Project, Plan, as amended; or (g) do not contain any statement by Buyer, CCDC, or the
City with respect to the cure, abatement, or removal of any public health and safety condition present on the
Property.
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20.5 Permits sought and discussed in this Agreement are to be sought from the City and
not Buyer or CCDC. Buyer neither undertakes nor assumes nor will have any responsibility or duty under
this Agreement to review, inspect, supervise, pass judgment upon or infoim the Seller or parties to the D&A-
Wakeland Contract of any matter in connection with the transaction and Repair of the Property contemplated
in Section 4.2(f) of the D&A-Wakeland Contract, whether regarding the quality, adequacy or suitability of the
soils, plans, any labor, service, engineering work product, equipment or material furnished to the Property,
any person furnishing the same, or otherwise. Seller and all third parties in agency with Seller shall rely upon
its or their own judgment regarding such matters, and any review, inspection, supervision, exercise of
judgment or information supplied to Seller or to any third party by the Buyer in connection with such matter
is for the public purpose of redeveloping the Property, abating the public health and safety condition on the
Property and neither Seller or any third party is entitled to rely thereon. Neither Buyer nor CCDC shall be
responsible for the Repair of the Property or any of the work, construction, excavation, engineering,
improvement or development of the Property.
20.6 Notwithstanding the foregoing, when the Seller to this Agreement requests approval
of any form of tie-back easement agreement with temporary license or certification by engineer that is not in
substantial form to those attached hereto as Exhibits "F" and "G," respectively, Seller shall make such request
in writing addressed to Buyer and transmitted pursuant to Section 18. Buyer shall seek approval from its
governing board for such requests within fifteen (15) calendar days of written request for approval of any
form of agreement or certification not substantially in the form of Exhibits "F" and "G."
21.
Entry. Buyer acknowledges Seller does not have fee title to the Property but has rights to
inspect the Property pursuant to Section 8.1 of the D&A-Wakeland Contract. From and after the Opening of
Escrow and to the greatest extent permissible under the D&A-Wakeland Contract, Buyer and Buyer's
representatives, agents and designees shall have the right, without prior written notice, to enter upon the
Property, at Buyer's sole cost, for any purpose in connection with its proposed purchase, development or
operation of the Property, monitoring of the satisfaction of the Fill and Tie-Back Conditions, including,
without limitation, the right to make such inspections, investigations and tests (including all mechanical
systems) as Buyer may elect to make or obtain, including without limitation, environmental (Phase I and/or
Phase II), soils, seismic, hydrogeologic and engineering tests, analyses and studies. From and after the
Opening of Escrow, Buyer shall be entitled to communicate directly with the Authorities in connection with
Buyer's proposed purchase, development or operation of the Property. The exercise by Buyer of any of the
preceding or any other act of Buyer shall not negate any representation, warranty or covenant of Seller or
modify any of Buyer's rights or Seller's obligations in the event of any breach by Seller of any of its
representations, warranties or covenants under this Agreement. Buyer hereby fully indemnifies Seller from
any and all personal injury or damage to tangible personal property and mechanics' liens arising out of any
such entry by Buyer or its agents, designees or representatives including attorneys' fees incurred by Seller
under this Agreement or D&A Semi-Annual Mortgage Fund III, L.P. under the D&A-Wakeland Contract, as
a result of any claim of personal injury or damage.
22.
Legal and Equitable Enforcement of this Agreement.
22 .1 Default by Seller. In the event the Close of Escrow and the consummation of the
transactions herein contemplated do not occur by reason of any default by Seller, Buyer shall be entitled to the
return of the Closing Funds (if deposited with Escrow), all of its out-of-pocket expenses incurred in
connection with the transaction, and shall have the right to pursue any other remedy available to it at law or in
equity, including the specific performance of this Agreement.
22.2 Default by Buyer. In the event the Close of Escrow and the consummation of the
transactions herein contemplated do not occur by reason of any default by the Buyer, Seller's sole remedy
shall be to pursue an action for specific performance of Buyer's obligations under this Agreement.
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23.
Miscellaneous.
23.1 Partial Invalidity. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of
this Agreement shall be valid and be enforced to the fullest extent permitted by law.
23.2 Waivers. No waiver of any breach of any covenant or provision herein contained
shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or
provision herein contained. No extension of time for performance of any obligation or act shall be deemed an
extension of the time for performance of any other obligation or act.
23.3
Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and assigns of the parties hereto.
23.4 Professional Fees. In the event of the bringing of any action or suit by a party hereto
against another party hereunder by reason of any breach of any of the covenants, agreements or provisions on
the part of the other party arising out of this Agreement, or any matter related to or arising out of the sale and
purchase of the Property, then in that event the prevailing party shall be entitled to have and recover from the
other party all costs and expenses of the action or suit, including actual attorneys' fees, accounting and
engineering fees, and any other professional fees resulting therefrom.
23.5 Entire Agreement. This Agreement (including all Exhibits attached hereto) is the
final expression of, and contains the entire agreement between, the parties with respect to the subject matter
hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified,
changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any benefit hereunder on any person, firm or
corporation other than the parties hereto.
23.6 Time of Essence. Seller and Buyer hereby acknowledge and agree that time is
strictly of the essence with respect to each and every term, condition, obligation and provision hereof and that
failure to timely perform any of the terms, conditions, obligations or provisions hereof by either party shall
constitute a material breach of and a non-curable default under this Agreement by the party so failing to
perform. If the last day upon which performance would otherwise be required or permitted is a Saturday,
Sunday or holiday, then the time for performance shall be extended to the next day which is not a Saturday,
Sunday or holiday. The term
"holiday"
shall mean all and only mandatory federal holidays including which
deliveries by the United States Postal Services are suspended.
23.7 Construction. Headings at the beginning of each paragraph and subparagraph are
solely for the convenience of the parties and are not a part of the Agreement. Whenever required by the
context of this Agreement, the singular shall include the plural and the masculine shall include the feminine
and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but
rather as if both parties had prepared the same. Unless otherwise indicated, all references to paragraphs and
subparagraphs are to this Agreement. All exhibits referred to in this Agreement and the Glossary of Terms
are attached and incorporated by this reference. In the event the date on which Buyer or Seller is required to
take any action under the terms of this Agreement is not a business day, the action shall be taken on the next
succeeding business day.
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23.8 Governing Law. The parties hereto acknowledge that this Agreement has been
negotiated and entered into in the State of California. The parties hereto expressly agree that this Agreement
shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State
of California.
23.9 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, and all of which, together, shall constitute one and the same instrument.
23.10 No Joint Venture. This Agreement shall not create a partnership or joint venture
relationship between Buyer and Seller.
23.11 No Conflicts of Interest. No member, official, or employee of Buyer shall have any
personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or employee
participate in any decision relating to the Agreement which affects his or her personal interests or the interests
of any corporation, partnership, or association in which he or she is, directly or indirectly, interested. Seller
warrants that it has not paid or given, and will not pay or give, directly or indirectly, any Buyer, CCDC, or
City employee or official, any money or other consideration at all, whether or not connected in any way with
the subject matter of this Agreement. Further, Seller warrants that it has no knowledge of any financial
interest of any Buyer, CCDC or City employee or official in Seller, directly or indirectly, or in any person or
entity affiliated with Seller, or in any transaction in which Seller or its affiliates or subsidiaries have been
involved.
23.12 Executive Director Discretion. The Executive Director of the Buyer or designee is
authorized to approve and or make such further changes to the documents and instruments attached to this
Agreement, including but not limited to the Buyer's requirements for the Title Policy, any required tie-back
easement agreement and temporary licenses in substantially the same form as Exhibit "F" and the certificate
of engineer in substantially the same form as Exhibit "G," as may be necessary or appropriate to effectuate the
Agreement, provided the Purchase Price is not changed without the approval of the Buyer's board of
directors. With respect to the proposed tie-back easement agreement and temporary licenses to be presented
in substantial form as Exhibit "F," the Executive Director of Buyer or designee is authorized to approve such
further changes in his or her discretion, provided that after any and all changes to the proposed document,
there is still an easement for the tie-backs to remain as identified in paragraph 1 of Exhibit "F" and a
temporary license as identified in paragraph 2 of the Exhibit "F." The Executive Director of Buyer or
designee is authorized to execute such further instruments required by this Agreement, including but not
limited to supplemental joint escrow instructions, Buyer closing estoppel certificate, the general assignment
and bill of sale, grant deed, estimated settlement statements, and similar closing documents, as may be
necessary or appropriate to effectuate this Agreement.
[THE REMAINDER OF THIS PAGE IS BLANK]
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[Property Acquisition Agreement and Joint Escrow Instructions]
Joan Edelman
Director of Finance and
Assistant Board Secretary
By:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
beside their signatures and that this Agreement shall be dated as of the date signed by the Buyer.
"SELLER"
Wakeland Housing & Development Corp.,
a California corporat ion
Date:
319
t-D
"BUYER"
REDEVELOPMENT AGENCY
OF THE CITY OF SAN DIEGO
By:
Date:
APPROVED AS TO FORM AND LEGALITY:
JAN I. GOLDSMITH
Agency General Counsel
By:
Assistant/Deputy General Counsel
KANE, BALLMER & BERKMAN
Agency Special Counsel
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[Property Acquisition Agreement and Joint Escrow Instructions]
ACCEPTANCE BY ESCROW HOLDER
Lawyers Title Commercial Services acknowledges that it has received a fully executed original or
original executed counterparts of this Agreement and agrees to act as Escrow Holder under this Agreement
and to be bound by and strictly perform the terms thereof as such terms apply to Escrow Holder.
Dated as of:
LAWYERS TITLE COMMERCIAL SERVICES
B y :
Linda L. McLain, CSEO
Escrow Officer
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[Property Acquisition Agreement and Joint Escrow Instructions]
GLOSSARY OF TERMS
1) "Authorities"
means any governmental or quasi-governmental body or agency having jurisdiction
over the Property and/or Seller including, without limitation, the State, the City and the County.
2) "Cash Equivalent"
means a wire transfer of funds or a bank cashier's check drawn on a reputable
bank licensed to do business in the State.
3) "Clean Soil"
means soil that is documented by analytical laboratory testing to contain levels of
metals below the San Diego Regional Water Quality Control Board (SD-RWQCB) Tier 1 soil screening
levels as outlined in Resolution R9-2007-0104, Conditional Waiver No. 8, 8.II.E. In addition to the
foregoing, Clean Soil is also not known or reasonably suspected to contain detectable concentrations of any
other Hazardous Material (as defined below, including, but not limited to hazardous substance as defined at
California Health & Safety Code Section 33459(c)), including but not limited to petroleum hydrocarbons,
volatile organic compounds, semi-volatile organic compounds, pesticides, or polychlorinated biphyenyls.
Lastly, Clean Soil is soil that is not subject to waste classification, disposal, or reuse regulations
4) "Close of Escrow"
means the date the Grant Deed is recorded in the Official Records.
5) "Closing Date"
means the Close of Escrow as defined in Section 2 .5 of the D&A-Wakeland
Contract. The parties estimate the date is to be the later to occur of (i) the date that is ten (10) business days
following the satisfaction (or waiver in writing by Buyer) of all conditions precedent set forth in Paragraph
6.1 of the Agreement or (ii) June 30, 2010; at any time, by mutual consent of the Seller and Buyer, the
June 30, 2010 date herein may be extended to October 31, 2010, or such other prior date necessary to
accommodate a concurrent back-to-back Close of Escrow with the D&A-Wakeland Contract. In no event
shall the Closing Date extend beyond October 31, 2010.
6) "Contingency Date"
means 5:00 p.m. Pacific Time on the date that is the earlier of: (i) the date
Buyer provides its written notice of satisfaction of the Fill Condition, (ii) thirty (30) days prior to the Closing
Date, or (iii) October 1, 2010.
7) "Escrow"
means the above-referenced escrow opened with Escrow Holder for the consummation of
the transaction described in this Agreement.
8) "Escrow Holder"
means Lawyers Title Commercial Services, a division of Fidelity National Title
Insurance Company.
9)
"Governmental Regulations"
means any laws, ordinances, rules, requirements, resolutions, policy
statements and regulations (including, without limitation, those relating to land use, subdivision, zoning,
environmental, toxic or hazardous waste, occupational health and safety, water, earthquake hazard reduction,
disabled persons and building and fire codes) of the Authorities bearing on the construction, alteration,
rehabilitation, maintenance, use, operation or sale of the Property.
10) "Hazardous Material"
means any radioactive, hazardous or toxic substance, material or waste which
is or becomes regulated by any local governmental authority, the State of California or the United States
Government. The term "Hazardous Material"
includes, without limitation, any material or substance which
is (i) defined as a "hazardous waste," "acutely hazardous waste," "restricted hazardous waste," or "extremely
hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of the
California Health and Safety Code; (ii) defined as a "hazardous substance" under Sections 25316 and
33459(c) of the California Health and Safety Code; (iii) defined as a "hazardous material," "hazardous
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[G lossary of Terms]
substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code; (iv) defined
as a "hazardous substance" under Section 25281 of the California Health and Safety Code; (v) petroleum; (vi)
asbestos; (vii) lead; (viii) a polychlorinated biphenyl; (ix) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article 11 of Title 22 of the California Code of Regulations, Chapter 20;
(x) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section
1317); (xi) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act (42 U. S.C. Section 6903); (xii) defined as a "hazardous substance" pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601);
(xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, with
respect to which any governmental regulations or requirements provide for special handling in its use,
transportation, generation, collection, storage, treatment or disposal; _(xiv) any substance, product, waste, or
other material of any nature whatsoever which may give rise to liability under any of the above statutes or
under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict
liability or under any reported decisions of a state or federal court; (xv) petroleum or crude oil other than
petroleum and petroleum products which are contained within regularly operated motor vehicles; and (xvi)
asbestos.
11)
"Improvements"
means all buildings, fixtures, structures, parking areas, landscaping and other
improvements constructed and located on the Property, including shoring systems described in that certain
Review and Evaluation Report for Former Atmosphere Site Shoring bearing project number 09076 prepared
by Flores Lund Consultants, as amended November 16, 2009, together with all machinery and mechanical,
electrical, HVAC and plumbing systems (other than Personal Property) used in the operation thereof, but
excluding any such items owned by public or private utilities.
12)
"Licenses and Permits"
means (A) all licenses, permits, certificates of occupancy, approvals,
dedications, subdivision maps and entitlements issued, approved or granted by Authorities or otherwise in
connection with the Property or the Improvements, including, without limitation, those necessary to satisfy
the Fill Condition and certified as completed in compliance by the Authority and attached to the certification
of engineer, a form of which is attached hereto as Exhibit "G," or any materials prepared and/or approved or
disapproved pursuant to the provision of the California Environmental Quality Act
("CEQA") (California
Public Resources Code §§ 21000 et. seq.) (B) any and all development rights and other intangible rights,
titles, interests, privileges and appurtenances owned by Seller and in any way related to or used in connection
with the Property or the Improvements or their respective operation; (C) licenses, permits, maps, certificates
of occupancy, building inspection approvals and unrecorded covenants, conditions and restrictions, reciprocal
easement agreements, area easement agreements and other common or planned development agreements or
documents affecting the Property or the Improvements ; and
(D)
all licenses, consents, easements, rights of
way and approvals required from private parties, including such agreements concerning satisfaction of the
Tie-Back Condition which are in substantially the same fowl as attached hereto as Exhibit "F," to make use of
subterranean tie-backs, support structures, and like shoring systems, as well as utilities and to insure vehicular
and pedestrian ingress and egress to the Property or the Improvements.
13) "Official Records"
means the Official Records of the San Diego County Recorder.
14) "Opening of Escrow"
means the date on which a fully executed copy of this Agreement is delivered
to Escrow Holder by Buyer and Seller.
15) "Personal Property"
means all equipment, appliances, tools, machinery, supplies, building materials
and other personal property of every kind and character owned by Seller and attached to, appurtenant to,
located in or used in connection with the operation of the Property or the Improvements and the Records and
Plans.
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[G lossary of Terms]
16) "Records and Plans"
means (A) all City permits required to satisfy the Fill Condition, (B) all
preliminary, final and proposed building plans and specifications (including "as-built" drawings), if any,
respecting the Improvements„ including any obtained in connection with satisfaction of the Fill or Tie-Back
Conditions, and (C) all surveys, including ALTA or ACSM surveys, structural reviews, grading plans,
topographical maps, architectural drawings and engineering, soils, seismic, geologic, environmental
contamination and architectural reports, studies and certificates and other documents pertaining to the
Property or any Improvements, including any obtained in connection with satisfaction of the Fill or Tie-Back
Condit ions.
17)
"Service Contracts"
means any and all service contracts, including, but not limited to, maintenance
contracts, operating contracts, management contracts, listing agreements, parking contracts and like contracts
and agreements relating to the Property or the Improvements, together with all supplements, amendments and
modifications thereto, including any obtained in connection with satisfaction of the Fill Condition.
18) "Tenant Leases"
means all leases, licenses, rental agreements or occupancy agreements, and all
amendments and supplements thereto, relating to all or any portion of the Property or the Improvements
(together with all rents, issues and profits thereunder).
19) "Title Company"
means Lawyers Title Commercial Services, a division of Fidelity National Title
Insurance Company.
20)
"To the best of Seller's knowledge"
or other references herein to Seller's knowledge mean the
knowledge a party involved with the Property would be expected to have by reason of being an experienced
affordable housing developer that selected the Property as a future affordable housing development site and
would have continued involvement with the Property as a proposed buyer and potentially future developer
and operator proposing an exclusive negotiation agreement for a period of up to two years.
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[G lossary of Terms]
SCHEDULE OF EXHIBITS
EXHIBIT
TITLE
A
Legal Description of the Property (Fee Parcel)
· Estoppel Certificate
· Form of Grant Deed
·
General Assignment and Bill of Sale
·
Non-Foreign Entity Certification
·
Tie-Back Easement Agreement With Temporary License
· Certification of Engineer
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN BELOW IN SITUATED IN THE COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
(APN: 533-451-02-00)
LOT B IN BLOCK 201 HORTON'S ADDITION, IN THE CITY OF SAN DIEGO, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY.
PARCEL 2:
(APN: 533-451-16-00)
LOTS C AND D, BLOCK 201, HORTON' S ADDITION, IN THE CITY OF SAN DIEGO, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF MADE BY L.L.
LOCKLING ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY.
PARCEL 3:
(APN: 533-451-11-00)
THE NORTH HALF OF LOT "J" AND ALL OF LOT "K" IN BLOCK 201 OF HORTON' S ADDITION,
IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, CALIFORNIA.
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EXHIBIT "A"
[Legal Description of Property]
EXHIBIT "B"
ESTOPPEL CERTIFICATE
To:
Redevelopment Agency of the City of San Diego
do Centre City Development Corporation
401 B Street, Fourth Floor
San Diego, California 92101
Attention: Ms. Eni Kameyama
Date: [INSERT DATE]
Re:
1453 Fourth Avenue and 1446 Fifth Avenue, San Diego, California 92101
The undersigned hereby certifies to the Redevelopment Agency of the City of San Diego
("Buyer") as of the date hereof as follows, to the best of the undersigned's knowledge:
1.
There are no contracts, licenses, leases, service contracts or rights of entry affecting the
Property other than the following which the undersigned, or predecessor-in-interest to Seller, granted
affecting the Property: [IDENTIFY SUCH CONTRACT, LICENSE, OR LEASE IF APPLICABLE] [NAME
OF LICENSEE OR TENANT IF APPLICABLE] under the above-referenced covering the above-referenced
Premises. A true, correct and complete copy of the [NAME OF CONTRACTS, LICENSES OR LEASES, IF
APPLICABLE] (including all addenda, riders, amendments, modifications and supplements thereto) is
attached hereto as Attachment "A".
2.
. [If applicable] The [NAME OF CONTRACTS, LICENSES OR LEASES, IF APPLICABLE]
constitutes the entire agreement between [OR NAME OF LICENSEE OR TENANT IF APPLICABLE] and
the undersigned.
3. [If applicable] The term of the
commenced on March 1, 2006, and, including any
presently exercised option or renewal term, will expire on
4.
[If applicable] There exists no breach or default, nor state of facts nor condition which, with
notice, the passage of time, or both, would result in a breach or default on the part of either Buyer [OR
NAME OF LICENSEE OR TENANT IF APPLICABLE] or the undersigned. To the best of Seller's
knowledge, no claim, controversy, dispute, quarrel or disagreement exists involving said document.
5.
[If applicable] There are no other leases, licenses, rental agreements or like interests
conferred by the undersigned unless otherwise disclosed to Buyer. [CORRECT IF APPROPRIATE]
SELLER
Wakeland Housing & Development Corp.,
a California corporation
By:
Kenneth L. Sauder
President & CEO
By:
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EXHIBIT "B"
[Form of Grant Deed ]
EXHIBIT "C"
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Redevelopment Agency
of the City of San Diego
c/o Centre City Development Corporation
401 B Street, Fourth Floor
San Diego, California 92101
Attention: Mr. David Allsbrook
MAIL TAX STATEMENTS TO:
Centre City Development Corporation
401 B Street, Fourth Floor
San Diego, California 92101
Attention: Mr. David Allsbrook
Assessor Parcel Nos:
533-451-02
533-451-16
533-451-11
(Space Above For Recorder's Use)
GRANT DEED
State of California
County of San Diego
THIS GRANT DEED is made this
day of
, 2010 by WAKELAND HOUSING &
DEVELOPMENT CORP., a California corporation ("Grantor"), to the REDEVELOPMENT AGENCY OF
THE CITY OF SAN DIEGO, a public body, corporate and politic (the "Grantee").
WHEREAS, Grantor holds legal title to an undivided interest in that certain real property located
in the City of San Diego, County of San Diego, State of California, described as follows:
PARCEL 1:
LOT B IN BLOCK 201 HORTON' S ADDITION, IN THE CITY OF SAN DIEGO, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY.
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EXHIBIT "C"
-1-
[Form of Grant Deed ]
PARCEL 2:
LOTS C AND D, BLOCK 201, HORTON' S ADDITION, IN THE CITY OF SAN DIEGO, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF MADE BY L.L.
LOCKLING ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY.
PARCEL 3:
THE NORTH HALF OF LOT "J" AND ALL OF LOT "K" IN BLOCK 201 OF HORTON' S ADDITION,
IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, CALIFORNIA.
WHEREAS, Grantor desires to convey to Grantee in fee simple all of its right, title and interest in and
to the aforesaid parcels of real property (the "Real Property").
NOW THEREFORE, IN CONSIDERATION of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Grantor, the Grantor does hereby grant, bargain, sell and
convey unto the Grantee in fee simple the Real Property with all and singular the ways, easements, rights,
privileges and appurtenance thereto or in any way appertaining, all improvements thereon and all the estate,
right, title, interest and claim, either at law or in equity, of the Grantor as to Grantor's entire undivided interest
in the said Real Property.
IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed by its representative
thereunto duly authorized as of the day and year first above written.
"GRANTOR"
Wakeland Housing & Development Corp.,
a California corporation
By:
Kenneth L. Sauder
President & CEO
By:
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EXHIBIT "C"
-2-
[Form of Grant Deed ]
Certificate of Acceptance
This is to certify that the interest in Real Property conveyed by this grant dated from WAKELAND
HOUSING & DEVELOPMENT CORP., a California corporation, to THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN DIEGO, a public body, corporate and politic, is hereby accepted by order of the
on
, and the Grantee consents to recordation thereof by its duly
authorized officer.
"GRANTEE"
REDEVELOPMENT AGENCY OF THE CITY OF
SAN DIEGO
By:
APPROVED AS TO FORM FOR THE
REDEVELOPMENT AGENCY OF THE CITY
OF SAN DIEGO
JAN I. GOLDSMITH
AGENCY GENERAL COUNSEL
By:
Assistant/Deputy General Counsel
ICANE, BALLMER & BERKMAN
Special Counsel
By:
Murray 0. Kane
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EXHIBIT "C"
-3-
[Form of Grant Deed ]
State of California
)
)
County of
)
On
before me,
, a Notary Public, personally
appeared
, who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct. WITNESS my hand and official seal.
Signature
(Seal)
State of California
)
)
County of
)
On
before me,
, a Notary Public, personally
appeared
, who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct. WITNESS my hand and official seal.
Signature
(Seal)
State of California
)
)
County of
)
On
before me,
, a Notary Public, personally
appeared
, who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct. WITNESS my hand and official seal.
Signature
(Seal)
EXHIBIT "D"
GENERAL ASSIGNMENT AND BILL OF SALE
THIS GENERAL ASSIGNMENT AND BILL OF SALE ("Assignment") is made this
day of
, 2010 by and between Wakeland Housing & Development Corp., a California corporation
("Assignor"), and the REDEVELOPMENT AGENCY OF THE CITY OF SAN DIEGO, a public agency,
corporate and politic ("Assignee"), with respect to the following matters.
W ITN E S SETH :
Assignor and Assignee entered into that certain Agreement of Purchase and Sale and Joint Escrow
Instructions, dated as of
("Agreement"), respecting the sale of Assignor's entire
undivided interest in the "Property" (as defined in the Agreement), including the real property located in the
City of San Diego, County of San Diego, described as follows:
PARCEL 1: (APN: 533-451-02)
LOT B IN BLOCK 201
HORTON'S ADDITION, IN THE CITY OF SAN DIEGO,
COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY.
PARCEL 2:
(APN: 533-451-15)
LOTS C AND D, BLOCK 201, HORTON'S ADDITION, IN THE CITY OF SAN DIEGO, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF MADE BY L.L.
LOCKLING ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY.
PARCEL 3:
(APN: 533-451-11)
THE NORTH HALF OF LOT "J" AND ALL OF LOT "K" IN BLOCK 201 OF HORTON'S ADDITION,
IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF ON FILE IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO
COUNTY,
CALIFORNIA.
Unless otherwise indicated herein, all capitalized terms in this Assignment shall have the meaning
ascribed to them in the Agreement.
Under the Agreement, Assignor is obligated to assign to Assignee any and all of its right, title and
interest in and to: (i) the Records and Plans, (ii) the Licenses and Permits, (iii) the Personal Property and (iv)
the Service Contracts in existence on the Close of Escrow.
NOW, THEREFORE incorporat ing the foregoing recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, as of the Close of Escrow,
Assignor hereby assigns, sells, transfers, sets over and delivers unto Assignee all of Assignor's estate, right,
title and interest in and to, and Assignee hereby accepts such assignment, with respect to any of the following
provided, however, that this Assignment shall only be effective to assign sell, transfer, set over and deliver
such interest as Assignor shall have as of the Close of Escrow with respect to any of the following:
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EXHIBIT "D"
-1-
[General Assignment and Bill of Sale]
(i)
all records, plans, licenses, contracts, permits and personal property issued in connection with
or used in the operation, maintenance or repair of the Property, including but not limited to all materials
received by Assignor in satisfaction of the Fill Condition or such personal property remaining on or about the
Property on the Close of Escrow whether or not a itemized under the D&A-Wakeland Contract,
(ii)
all assignable warranties, indemnities and guarantees (express or implied) issued in
connection with or arising out of the purchase and repair of the Personal Property; and
(iii)
any other tangible personal property and all intangible rights in connection with the complete
and comfortable use, enjoyment, occupancy or operation of the Property.
Assignor hereby covenants that Assignor will, at any time and from time to time, upon written request
therefor, execute and deliver to Assignee, Assignee's successors, nominees and assigns, any new or
confirmatory instruments which Assignee, Assignee's successors, nominees and assigns may reasonably
request in order to fully assign and transfer to and vest in Assignee, or Assignee's successor, nominee and
assigns, and to protect Assignee's or Assignee's successors', nominees' and assigns' right, title and interest in
and to the Records and Plans, Licenses and Permits, Personal Property, Service Contracts and all related
warranties, indemnities and guarantees, and all other tangible property and intangible rights in connection
with the Property, or to otherwise realize upon or enjoy such rights in such assigned rights and properties.
In the event of the bringing of any action or suit by a party hereto against another party hereunder by
reason of any breach of any of the covenants, conditions, agreements or provisions on the part of the other
party arising out of this Assignment, then in that event the prevailing party shall be entitled to have and
recover of and from the other party all costs and expenses of the action or suit, including actual attorneys' fees
and costs.
This Assignment maybe executed simultaneously in counterparts, each of which shall be deemed an
original, but all of which, together, shall constitute one and the same instrument.
This Assignment shall be binding upon and inure to the benefit of the successors, assignees, personal
representatives, heirs and legatees of all the respective parties hereto.
This Assignment shall be governed by, interpreted under, and construed and enforceable in
accordance with, the laws of the State of California.
[CONTINUED ON PAGE 3]
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[General Assignment and Bill of Sale]
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment as
of the day and year first above written.
"ASSIGNEE":
REDEVELOPMENT AGENCY
OF THE CITY OF SAN DIEGO
By:
APPROVED AS TO FORM:
Jan I. Goldsmith
Agency General Counsel
By:
Assistant/Deputy General Counsel
KANE, BALLMER & BERKMAN
Special Counsel
By:
Murray 0. Kane
"ASSIGNOR":
Wakeland Housing & Development Corp.,
a California corporation
By:
Kenneth L. Sauder
President & CEO
By:
ATTEST:
By:
Corporate Secretary
APROVED AS TO FORM FOR
WAKELAND HOUSING &
DEVELOPMENT CORP.,
a California corporation
By:
Counsel to Assignor
ICACG \SID \CCDC \Atmosphere \Wakeland Agency Acquisition IC \Atmosphere Prop
Acq Agrmt v9a.doc
[3-1-10]
EXHIBIT "D"
-3-
[General Assignment and Bill of Sale]
EXHIBIT "E"
NON-FOREIGN ENTITY CERTIFICATION
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest
must withhold tax if the transferor is a foreign person. For U.S. tax purposes (including Section 1445), the
owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the
transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is
not required upon the disposition of a U.S. real property interest by WAKELAND HOUSING &
DEVELOPMENT CORP., a California corporation (the "Transferor"), the undersigned hereby certifies the
following on behalf of the Transferor:
1.
Transferor is not a foreign person, foreign corporation, foreign partnership, foreign trust or
foreign estate (as those temis are defined in the Internal Revenue Code and Income Tax Regulations);
2.
Transferor/seller is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii);
3.
Transferor's U.S. Social Security number is
; and
4.
Transferor's address is:
Transferor understands that this certification may be disclosed to the Internal Revenue Service and
that any false statement made within this certification could be punished by fine, imprisonment, or both.
Under penalties of perjury the undersigned declares that he has examined this certification and that to
the best of his knowledge and belief it is true, correct and complete, and the undersigned further declares that
he has the authority to sign this document on behalf of the Transferor.
TRANSFEROR:
Wakeland Housing & Development Corp.,
a California corporation
By:
Kenneth L. Sauder
President & CEO
By:
1(...
\CG \ SD \ CCDC \Atrnosphere \ Wakeland Agency Acquisition K \Atmosphere Prop Acq
EXHIBIT "E"
Agrrnt v9a.doc
[3-1-10]
[Non-Foreign Entity Certification]
ATTEST:
By:
Corporate Secretary
APROVED AS TO FORM FOR
WAKELAND HOUSING &
DEVELOPMENT CORP.,
a California corporation
By:
Counsel to Seller
K: \CG \SD \CCDC \Atmosphere\ Wakeland Agency Acquisition KkAtmosphere Prop Acq
E X H IB IT "E "
Agrmt v9a.doc
[3-1-10]
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[Non-Foreign Entity Certification]
EXHIBIT "F"
FORM OF TIE-BACK EASEMENT AGREEMENT WITH TEMPORARY LICENSE
(Limited Executive Director discretion requested for approval of changes to this form)
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Gustavo Lamanna, Esq.
Kane, Ballmer & Berkman
515 South Figueroa Street, Suite 1850
Los Angeles, California 90071
Space above for Recorder's Use
TIE-BACK EASEMENT AGREEMENT WITH TEMPORARY LICENSE
THIS TIE-BACK EASEMENT AGREEMENT WITH TEMPORARY LICENSE ("Agreement") is
m a d e e f f e c t iv e th is
d a y o f
2 0 1 0 b y a n d b e tw e e n
("Owner")
and
a
("Landowner").
WHEREAS, Owner is performing certain fill and compaction work to eliminate an existing
excavation and certain grading work to provide a level graded surface (collectively, the"Work") on certain
real property owned by Owner, which property is described on Exhibit "A" hereto (the Property"). The
Property is adjacent to certain real property described on Exhibit "B" hereto owned by Landowner (the
"Landowner Property"); and
WHEREAS, in connection with the prior excavation performed on the Property, certain tie-backs,
shoring or other earth-supporting structures were installed on, adjacent to and beneath the Landowner
Property ("Tie-Backs") and certain excavations were made beneath the Landowner Property; and
WHEREAS, the parties have attached shoring system drawings on Exhibit "C" depicting, among
other things, the location of the Tie-Backs emanating from excavated D&A Property into and beneath the
surface of the adjacent Landowner Property ("Tie-Back Location"); and
WHEREAS, Owner requests approval of Landowner to perform the Work which will include fill and
compaction of the Property, the corresponding existence of the Tie-Backs in the Tie-Back Location incident
to the re-filling of the excavation on the Property, and monitoring of the Work from various vantage points,
including on or about the surface of the Landowner Property. Landowner's signature herein shall be deemed
their approval of same; and
WHEREAS, to accomplish the foregoing, Landowner agrees to the grant of (1) an underground
easement to permit the Tie-Backs to remain in place in and beneath the Landowner Property in the Tie-Back
Location (the "Easement") and (2) a temporary license through the completion of the Work permitting entry
onto, over, on or about the surface of Landowner Property in connection with monitoring the progress of the
Work (the "Temporary License"); and
KACG \SD CCDC \Atmosphere \Wakeland Agency Acquisition K \Atmosphere Prop Acq
EXHIBIT "F"
Agrmt v9a.doc
[3-1-10]
[Tie-Back Easement Agreement with Temporary License]
WHEREAS, the parties agree to the Easement and Temporary License, as further described below,
subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE„ the parties hereto agree as follows:
1.
Easement. Landowner, as current owner of the Landowner Property, and on behalf of all
future owners of the Landowner Property, grants the underground Easement to all future owners of the
Property, and their successors and assigns. Pursuant to the Easement, the Tie-Backs will remain in place
beneath the Landowner Property in the Tie-Back Location. Landowner acknowledges that it would not be
practical for Owner to remove the Tie-Backs from the Tie-Back Location. The parties hereto agree that the
Easement permits the Tie-Backs to be left in place in perpetuity or removed by a subsequent owner of the
Property; in addition, the Easement also permits the replacement, re-installation, and installation of such
replacement and/or additional tie-back, shoring or other earth-supporting structures beneath the Landowner
Property for the mutual benefit of the Property and Landowner Property at no expense to the Landowner..
2.
Temporary License. Landowner, as current owner of the Landowner Property, and on behalf
of all future owners of the Landowner Property, grants the Temporary License to D&A, as current owner of
the Property, all future owners of the Property, their successors and assigns, and their respective contractors,
subcontractors, agents and employees performing the Work (collectively, the "Licensee"). Pursuant to the
Temporary License, from the commencement of the Work through the completion of the Work when the
Property is filled to at-grade level, Landowner grants permission to the Licensee to enter into and monitor the
Landowner Property incident to the construction, installation, and maintenance of the Work and any related
construction activity.
3. In the performance of the Work, Owner shall cause all those performing said Work to take
appropriate steps to preserve and protect the Landowner Property, and all improvements thereon, from
damage to and to avoid any unreasonable interference with the conduct and operation of the improvements of
the Landowner Property.
4.
Landowner agrees to execute such additional documents as are reasonably requested by
Owner in connection with obtaining permits or other necessary or required approvals or the Easement
provided that Landowner shall incur no costs or liability in connection with such additional documents,
permits or approvals.
5. To the maximum extent permitted by law, Owner agrees to and shall defend, indemnify and
hold harmless Landowner and its officers, employees, contractors and agents from and against all claims,
liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising from or
as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person
or the property of any person resulting or arising from or in any way connected with the Work or any
mechanics' liens, stop notices or other liens or encumbrances filed or recorded against the Landowner's
Property in connection with the Work, provided Owner shall not be responsible for (and such indemnity shall
not apply to) any negligence or willful misconduct of the Landowner or its officers, employees, contractors or
agents. Owner may carry liability insurance in connection with the foregoing. In the event of a transfer of the
Property by Owner after the completion of the Work, this indemnity shall bind the successors of Owner and
all future owner(s) of the Property.
6. The Tie Backs will remain in place beneath the Landowner Property. Landowner
acknowledges that it would not be practical for Owner to remove the Tie Backs. The parties hereto agree that
the Tie Backs may be left in place or may be removed by a subsequent owner of the Property at its option. In
the event of any litigation or dispute between the parties hereto or the institution of any action or proceeding
K:\CG\SD\CCDC\Atmosphere\Wakeland Agency Acquisition K \Atmosphere Prop Acq
E X H IB IT "F "
Agmt v9a.doc
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[Tie-Back Easement Agreement with Temporary License]
to interpret or enforce this Agreement, or arising out of the subject matter of this Agreement or the
transactions contemplated hereby, the prevailing party shall be entitled to recover its actual expenses and its
actual attorneys' fees and costs, including professional or expert consultation or testimony.
7.
Landowner hereby appoints Owner its true attorney in fact to execute on its behalf all
permits, including without limitation building permits, required for the Work. This power of attorney is
coupled with an interest and may be exercised from time to time by Owner's's officers and employees, the
future owners of the Property, their officers, agents, or employees, or any of them.
8.
This Agreement is a covenant running with the land and shall bind and inure to the benefit of
the current and future owner(s) of the Property, Landowner and future owner(s) of the Landowner Property,
and their respective successors and assigns.
9.
This Agreement shall be governed by the laws of California (but not including the choice of
laws thereof).
10.
This Agreement may be executed in one or more counterparts, each of which when so
executed and delivered shall be deemed an original, all of which taken together shall constitute one and the
same original.
IN WITNESS WHEREOF, this Agreement has been signed as of the date first above written.
"Owner"
D&A Semi-Annual Mortgage Fund III, L.P.,
a California limited partnership
By:
Asset Managers, Inc., a California corporation, its general partner
By:
"LANDOWNER"
a
By:
Name:
Tit le:
K: \CG \SD CCDC \ Atmosphere\Wakeland Agency Acquisition K \ Atmosphere Prop Acq
E X H IB I T "F "
Agrint v9a.doc
[3-1-101
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[Tie-Back Easement Agreement with Temporary License]
ACKNOWLEDGEMENTS
STATE OF CALIFORNIA
) SS
COUNTY OF
O n
, before m e,
, a Notary Public,
personally appeared
who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
Witness my hand and official seal.
[Seal]
(Signature)
STATE OF CALIFORNIA
) SS
COUNTY OF
O n
, before m e,
, a Notary Public,
personally appeared
who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
Witness my hand and official seal.
[Seal]
(Signature)
EXHIBIT A
D&A PROPERTY
EXHIBIT B
LANDOWNER PROPERTY
EXHIBIT C
TIE-BACK LOCATION
EXHIBIT "G"
FORM OF CERTIFICATION OF ENGINEER
(Limited Executive Director discretion requested for approval of changes to this form)
CERTIFICATION OF ENGINEER
CONFIRMING REFILLING OF EXCAVATED SITE
AND SATISFACTORY COMPLETION OF SITE PREPARATION
1453 Fourth Avenue and 1446 Fifth Avenue, San Diego, California 92101
The undersigned certify the real property located at 1453 Fourth Avenue and 1446 Fifth Avenue
(the "Property") as further described in that certain Amended and Restated Agreement for Purchase and
Sale of Real Property dated January 26, 2010 between D&A Semi-Annual Mortgage Fund III, L.P., as
seller, and Wakeland Housing & Development Corp., as buyer.(the "Agreement").was refilled in
satisfaction of Section 4.2(f) of the Agreement. This Certification of Engineer certifies the following
have been completed in satisfaction of that condition to the Agreement of the parties:
A.
Completion of Refilling and Compacting of Property
1.
Clean Soil and Monitoring Certification by Registered Soils Engineer. The
undersigned and the parties to the Agreement have received a true, correct and complete registered soils
engineer certificate, or separate letter or report certifying same, that includes a statement indicating the
soil meets or exceeds the requirements of the applicable permit issued and approved by the City of San
Diego and contains the following certification, in substantial conformity of the following, concerning the
soil and monitoring:
(a)
Soil. The registered soils engineer confirms that soil used in the refilling was tracked
from its origin, tested, and analyzed to confirm it is "Clean Soil". "Clean Soil" is defined as soil that is
documented by analytical laboratory testing to contain levels of metals below the San Diego Regional
Water Quality Control Board (SD-RWQCB) Tier 1 soil screening levels as outlined in Resolution R9-
2007-0104, Conditional Waiver No. 8, 8.II.E. Clean Soil is also not known or reasonably suspected to
contain detectable concentrations of any other Hazardous Substances (as defined at California Health &
Safety Code Section 33459(c)), or other hazardous materials, including, but not limited to petroleum
hydrocarbons, volatile organic compounds, semi-volatile organic compounds, pesticides, or
Polychlorinated Biphyenyls. Clean Soil is soil that is not subject to waste classification, disposal, or reuse
regulations. Testing results confirming the soil used is Clean Soil are attached hereto as Exhibit A. 1(a)
(b)
Monitoring. In addition to the confirmation that soil was tested and confirmed as
Clean Soil, as defined above, the statement shall certify that monitoring took place at all times during the
refilling of the Property and that only Clean Soil was brought onto the Property. The statement shall
confirm that at no times was the Property unattended during the fill process to allow for soil other than
Clean Soil to be brought on, about, or onto the Property. Soils manifests, reports, and documentation
supporting this monitoring shall be attached as Exhibit A. 1(b) to the certification of registered soils
engineer along with said statement.
2.
Preliminary Soils Report issued and approved by City of San Diego. In addition to the
foregoing, and not to replace or supplement any other portion of this certificate, this certificate must
include a statement demonstrating satisfaction of this additional requirement of the City of San Diego.
The undersigned and the parties to the Agreement have applied for and met all the requirements of the
Preliminary Soils Report required by the City of San Diego. In response to satisfying all requirements,
the City of San Diego approved and issued the appropriate permit for all work required for Section 4.2(f)
of the Agreement. Evidence of satisfaction and approval of the Preliminary Soils Report is attached
hereto as Exhibit A.2.
3.
As Graded Soils Report with Compaction Testing issued approved by City of San
Diego. In addition to the foregoing, and not to replace or supplement any other portion of this certificate,
this certificate must include a statement demonstrating satisfaction of this additional requirement of the
City of San Diego. The undersigned and the parties to the Agreement have applied for and met all the
requirements of the As Graded Soils Report with Compaction Testing required by the City of San Diego.
In response to satisfying all requirements, the City of San Diego approved and issued the appropriate
permit for all work required for Section 4.2(f) of the Agreement. Evidence of satisfaction and approval of
the As Graded Soils Report with Compaction Testing is attached hereto as Exhibit A.3.
4.
Refilling Complete According to City Permit. In addition to the foregoing, and not to
replace or supplement any other portion of this certificate, this certificate must include a statement
demonstrating satisfaction of this additional requirement of the City of San Diego. The undersigned and
the parties to the Agreement have applied for and met all the requirements of the refilling permit, or such
related permit or permits necessary and required by the City of San Diego for refilling the excavated
Property. In response to satisfying all requirements, the City of San Diego approved and issued the
appropriate permit for all work required for Section 4.2(f) of the Agreement. Evidence of satisfaction and
approval of this or these permits is/are attached hereto as Exhibit A.4.
5.
Refilling of Property According to Agreed Upon Plan. In addition to the foregoing,
and not to replace or supplement any other portion of this certificate, this certificate or separate letter or
report must include a statement demonstrating satisfaction and substantial compliance with the fill plan
designated by an engineer who has inspected, reviewed and evaluated the Property and developed a plan
for refilling the Property. The fill plan endeavored by the parties may be in substantial form and content
to the one described in the Review and Evaluation Report for Former Atmosphere Site Shoring prepared
by Flores Lund Consultants, as amended November 16, 2009. A directional plan from Appendix C to
said report, modified to show positive drainage to the west, is attached reflecting the fill plan and
suggested condition of the Property desired at the Close of Escrow, as defined in the Agreement. The
certificate shall confirm the Property was filled in conformity with a fill plan designed by a registered
engineer after inspection, review, and evaluation of the Property.
B.
Vertical and Horizontal Survey
The parties to the Agreement agree to measure conduct a vertical and horizontal survey of the
points Al through A22 depicted in the attached modified Topographical Survey prepared by San Diego
Land Surveying & Engineering, Inc. The parties agree to add any additional vertical and/or horizontal
points required by the City of San Diego or shown in applications of the parties to the City for permits
issued and approved by the City of San Diego in connection with satisfaction of Section 4.2(f) of the
Agreement. The certificate shall include a table in the form shown below reflecting (1) measurements of
all vertical and horizontal points as of a date within 24 to 72 hours prior to the commencement of refilling
work; (2) measurements of all vertical and horizontal points as of a date that is 24 to 72 hours after the
completion of the refilling work; (3) the change, if any, following the refill; and (4) an explanation if the
change between any start and finish measurements exceed the "not to exceed" limits shown below and, if
applicable, a corresponding mitigation measure(s), if any, exist concerning the event.
Vertical Vertical
Vert ical Vert ical Change Horizontal Horizontal Change
Point 09/20/05 09/17/09
Change Start Finish NTE Start Finish NTE
Al
0 .43 '
N TBD TBD
A2 0.34' 0.31'
TBD TBD
A3 N 0.34'
TBD TBD
A4 0.33'
0.31'
TBD
TBD
A5 0.38'
0.36' TBD TBD
A6 0.35'
0.32'
TBD TBD
A7
N 0.29' TBD TBD
A8 0.39'
0.38'
TBD TBD
A9
N 0.40' TBD TBD
A10 0.27' 0.26' TBD TBD
A ll 0.30' 0.28'
TBD TBD
Al2
0.24'
0.22'
TBD TBD
A13 0.19' 0.17'
TBD TBD
A14 N/A N/A N/A TBD TBD
Al5
N/A
N/A N/A TBD TBD
A16 N/A N/A N/A
TBD TBD
A17 N/A N/A N/A TBD
TBD
Al8
N/A
N/A N/A TBD TBD
A19 N/A N/A N/A
TBD TBD
A20
N/A
N/A
N/A
TBD
TBD
A21 N/A N/A N/A
TBD TBD
A22 N/A N/A N/A
TBD TBD
C. Positive Drainage Systems and Erosion Control
In addition to compliance with paragraphs A.3. and A.5, above, concerning the at-grade soils
report and refilling plan by an engineer, the undersigned and the parties to the Agreement confirm that the
design and implementation of the refilling of the Property incorporate positive drainage systems and
erosion control as may be necessary under the permits required for satisfaction of Section 4.2(f) of the
Agreement. The directional plan from Appendix C of the Review and Evaluation Report for Former
Atmosphere Site Shoring prepared by Flores Lund Consultants, as amended November 16, 2009, was
modified to show positive drainage to the west. In addition to that suggested modification for positive
drainage and pooling of water on the Property after grading, the contractors have incorporated best
management practices in erosion control as determined by the City of San Diego and required on the City
erosion plans and grading permit. The undersigned certifies that the design, grading and refilling of the
Property accounts for and incorporates positive drainage and includes best management practices for
erosion control.
D.
Installation of Temporary Rental Fencing Around Perimeter of Property
At the time the Property was completely refilled in conformance with the foregoing, the parties
agree to install temporary fencing at the time the existing barricade surrounding the Property is removed.
At no time has the Property been left open without a barricade or gate. The parties agree to install such
temporary rental fencing around the perimeter of the Property to assure it does not constitute an attractive
nuisance or like public safety hazard. The costs for temporary rental fencing shall be considered a
Service Contract and be transferable on the Close of Escrow.
The undersigned engineer attaches photographs depicting the Property in the current state as of the time
of signing this Certificate.
Certified this
day of
, 2010
By:
Name:
Tit le:
[Seal]
[Attachments (1) Flores Lund Consultants directional plan with modification showing positive
drainage towards west and (2) San Diego Land Surveying & Engineering, Inc. Topographical
Survey, modified, to show locations Al through A22 for vertical and horizontal measurements]
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