HomeMy WebLinkAboutCT 99-06; Palomar Forum; Tentative Map (CT) (13)DAVIS PARTNERS
LIMITED LIABILITY COMPANY
November 5, 2003
Ms. Anne Hysong •
CITY OF CARLSBAD
1635 Faraday Ave.
Carlsbad, CA 92008
(^ PUNNING DEPARTMENT
City Of
SUBJECT: Environmental Mitigation
Palomar Forum, Carlsbad
Dear Anne,
The purpose of this letter is to notify you that Palomar Forum has satisfied the "take"
requirement under the 4(d) rule by acquiring 3.2 acres of conservation land and granting
it to the County of San Diego. Enclosed you will find the Purchase and Sale Agreement
for the 3.2 acres, along with confirmation from escrow that the transaction closed and
recorded on October 1, 2003.
Should you have any questions regarding this matter, please feel free to contact me at
949-752-2066.
Sincerely,
Larry E. Nelson
Principal
LEN/kat
enclosures
'0)U
1420 BRISTOL STREET NORTH • SUITE 100 • NEWPORT BEACH • CA 92660
TEL: 949.752.2066 • FAX: 949.752.8776
PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
BY AND BETWEEN
REAL ESTATE COLLATERAL MANAGEMENT COMPANY,
A DELAWARE CORPORATION
("Seller")
and
PALOMAR FORUM ASSOCIATES, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
("Buyer")
FOR THE BENEFIT OF
THE COUNTY OF SAN DIEGO,
A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA
PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
This PURCHASE
and effective as of
SALE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is made
11-2003 ("Effective Date"), by and between REAL ESTATE
COLLATERAL MANAGEMENT COMPANY, a Delaware corporation ("Seller"), and PALOMAR FORUM
ASSOCIATES, L.P., a California limited partnership ("Buyer"), to acquire 3.2 acres of natural habitat conservation
property for conveyance of fee tide to the County of San Diego, a political subdivision of the State of California
("County") with reference to the facts set forth below arid constitutes (i) a contract of purchase and sale between the
parties and (ii) escrow instructions to Chicago Title Insurance Company ("Escrow Agent").
DEFINED TERMS
Capitalized terms used in this Agreement have the meanings set forth in Exhibit "A".
BASIC TERMS
The following Basic Terms shall apply to this Agreement.
1.
2.
3.
Seller:
Buyer:
Property:
4. Purchase Price:
5. Deposit
6. Closing Date:
7. Escrow Agent:
8. Title Company:
9. Brokers:
10. Addresses for Notices:
REAL ESTATE COLLATERAL MANAGEMENT
COMPANY, a Delaware Corporation
PALOMAR FORUM ASSOCIATES, L.P., a California
limited partnership
Approximately 3.2 acres of natural habitat conservation
property located within the County, State of California, more
particularly described in Exhibit "B".
$92,900.00
$5,000.00
Two (2) days after the Effective Date, or as soon as Buyer and
Seller have deposited all necessary funds and documents
necessary for the Close of Escrow.
Chicago Title Insurance Company
Chicago Title Insurance Company
None
-l-
To Seller at its business office:
With a copy to:
And With a copy to:
To Buyer at its business office:
With a copy to:
If to Escrow Agent to:
Real Estate Collateral Management Company
c/o Morrow Development
1903 Wright Place, #180
Carlsbad, California 92008
Attn: Mr. Fred Arbuckle
Telephone No.: 760-929-2701
Facsimile No.: 760-929-2705
E-mail: farbuckle@morrowdevelopment.com
Real Estate Collateral Management Company
c/o Household Commercial
2700 Sanders Road - 1 South
Prospect Heights, Illinois 60070
Attn: Mr. Fred Schimel
Telephone No.: 847-564-7943
Facsimile No.: 847-205-7450
E-mail: fschimel@household.com
Ronald W. Rouse, Esq.
Luce, Forward, Hamilton & Scripps, LLP
11988 El Camino Real, Suite 200
San Diego, California 92130
Telephone No.: 858-720-6326
Facsimile No.: 858-523-4307
E-mail: rrouse@Luce.com
Palomar Forum Associates, L.P.
1420 Bristol Street North, Suite 100
Newport Beach, California 92660
Attn: Mr. Larry Nelson
Telephone No.: 949-752-2066
Facsimile No.: 949-752-8776
E-mail: lnelson@davis-partners.com
Law Offices of Steven Casselberry
1301 Dove Street, Suite 940
Newport Beach, California 92660
Attn: Steven Casselberry, Esq.
Telephone No.: 949-476-9999
Facsimile No.: 949-476-0175
E-mail: steve@casselberrylaw.com
Chicago Title Insurance Company
925 "B" Street
San Diego, California 92101
Attn: Ms. Lori Brandt
Telephone No.: 619-544-6254
Facsimile No.: 619-544-6229
E-mail: brandtl@ctt.com
Escrow No.: 33040354-U-49
Title No.: 33040354-U-50
-2-
ARTICLE 1
AGREEMENT OF PURCHASE AND SALE
1.1 Agreement for Purchase and Sale. On the terms and conditions hereinafter set forth, Seller
agrees to sell the Property to Buyer and Buyer agrees to purchase the Property from Seller for direct fee title
conveyance to the County at the Close of Escrow for permanent habitat preservation purposes in order to comply
with Buyer's offsite habitat mitigation requirements associated with Buyer's Palomar Forum development project
approvals and conditions, which project is located in the City of Carlsbad, California (generally, "Buyer's Habitat
Requirements").
1.2 Opening of Escrow. Upon the execution of this Agreement, the parties shall open escrow by
delivering 4 originals of this Agreement to Escrow Agent. No later than 1 Business Day after receipt of this
Agreement, Escrow Agent shall execute the Consent of Escrow Agent attached to this Agreement and return 2
originals to Seller's counsel and 1 original to Buyer at the address specified in the Basic Terms. The general
conditions of Escrow Agent are attached as Exhibit "C" and, in the event of any inconsistency between the general
conditions and this Agreement, the terms of this Agreement shall control.
1.3 Purchase Price. The Purchase Price for the Property shall be Ninety Two Thousand Nine
Hundred Dollars ($92,900.00).
1.4 Payment of the Purchase Price. The Purchase Price shall be paid in accordance with the
provisions set forth below.
1.4.1 Buyer's Deposit. Concurrently with the Opening of Escrow, Buyer shall deliver to
Escrow Agent, in Cash, the Buyer's Deposit.
1.4.2 Applicability of Deposit. If Escrow closes for the Property, Buyer's Deposit shall be
applicable to the Purchase Price. Provided, however, if Escrow fails to close for any reason other than the default
of Seller, the Deposit shall be released to and retained by Seller as liquidated damages pursuant to Section 8.1
herein.
1.4.3 Balance of Purchase Price. Not less than 1 Business Day before the Closing Date,
Buyer shall deposit into Escrow, Cash, in an amount equal to the balance of the Purchase Price.
ARTICLE 2
CONDITIONS PRECEDENT TO THE CLOSE OF ESCROW
2.1 Seller's Conditions Precedent. The following shall constitute conditions precedent to the Close
of Escrow for the Property for the benefit of Seller, which conditions may be waived by Seller.
2.1.1 Deposit of Documents by Buyer. Buyer shall have deposited into Escrow the completed
Preliminary Change of Ownership Report and such other documents and funds required to be deposited by Buyer
under the terms of this Agreement and Buyer shall not otherwise be in material default under this Agreement.
2.2 Buyer's Conditions Precedent. The following shall constitute conditions precedent to the Close
of Escrow for the Property for the benefit of Buyer, which conditions may be waived by Buyer.
2.2.1 Conveyance of Title. The Title Company shall be prepared and irrevocably committed
to issue a CLTA Standard Title Policy in favor of the County for the Property vested in the County.
2.2.2 Approval by County of San Diego. It shall be a condition precedent to the Close of
Escrow that the status of title to the Property be as set forth in the next sentence and the County agrees to accept the
subsequent conveyance directly by Seller to the County in satisfaction of Buyer's Habitat Requirements to the
County. Buyer represents that the County has approved, and the Buyer has consented to the Performa #1 issued
September 3, 2003 by the Title Company (a copy of which is attached hereto as Exhibit "F").
-3-
2.2.3 Deposit of Documents by Seller. Seller shall have deposited into Escrow the documents
required to be deposited by Seller under the terms of this Agreement and Seller shall not be in material default under
this Agreement.
2.2.4 Failure of Conditions Precedent in Favor of Buyer. If any of the foregoing conditions
precedent are neither satisfied nor waived by Buyer by the Closing Date, Buyer may terminate the Escrow and this
Agreement by giving a written notice of termination to Seller and Escrow Agent.
ARTICLE 3
COVENANTS AND AGREEMENTS
3.1 No Concern. Escrow Agent shall have no concern with, and liability or responsibility for, this
Article. Each covenant and agreement contained in this article shall survive the Closing or earlier termination of
this Agreement.
3.2 Additional Escrow Instructions. Buyer and Seller covenant and agree that they will execute any
additional escrow instructions not inconsistent with the terms of this Agreement as shall be reasonably required by
Escrow Agent.
3.3 Return of Property Documents. If Escrow fails to close for any reason, then all Property
Documents and any other materials delivered by Seller to Buyer shall be delivered to Seller by Buyer within 5
Business Days thereafter.
3.4 Subdivision Map Act. The parties acknowledge that the Property is part of a larger legal parcel,
will not be further subdivided prior to Closing, and the parties are jointly reiving on California Government Code
Section 66428(a)(2) as an exception to the California Subdivision Map Act. Buyer shall indemnify, defend and hold
Seller harmless from any legal, administrative, enforcement, criminal or other proceedings, claim, fines, damages,
judgments, penalties or other actual or alleged violations of the California Subdivision Map Act in completing this
Agreement.
3.5 Compliance with 1995 HCP. The Property is a portion of the Offsite Mitigation Parcel, as that
term is defined in that certain "Implementation Agreement Regarding the City of Carlsbad/Fieldstone/La Costa
Associates Habitat Conservation Plan/On-Going Multi-Species Plan" dated June 7, 1995 (the "HCP") which requires
the Property, along with other conservation properties, to be owned, managed, maintained and preserved in
perpetuity for habitat conservation purposes in accordance with the HCP. Buyer shall indemnify, defend and hold
Seller harmless from any legal, administrative, enforcement criminal or other proceedings, claims, fines, damage,
judgments penalties or other actual or alleged violations of the HCP. Buyer shall indemnify, defend and hold Seller
harmless from any legal, administrative, enforcement criminal or other proceedings, claims, fines, damages,
judgments penalties or other actual or alleged violations of the HCP arising out of any failure to manage, maintain or
preserve the Property in accordance with the HCP following Close of Escrow.
3.6 As-Is Purchase: Release of Seller. Buyer is acquiring the Property in satisfaction of Buyer's
Habitat Requirements in the Property's current, unimproved "As-Is" condition. Buyer has had adequate time to
investigate the Property, its condition and its suitability for Buyer's purposes. Seller makes no warranties or
representations of any kind, express or implied, regarding the suitability or condition of the Property whatsoever and
Buyer hereby releases Seller at Close of Escrow and covenants not to sue Seller for any alleged defect, condition,
loss or claim regarding the Property of any kind whatsoever.
-4-
ARTICLE 4
THE CLOSING
4.1 Closing Date. The Close of Escrow shall occur on or before the Closing Date. If the conditions
precedent to the Close of Escrow have not occurred by October 5, 2003, as such date may be extended for in writing
by the parties ("Latest Closing Date"), then this Agreement shall terminate.
4.2 Deliveries to Escrow Agent.
4.2.1 Buyer's Deliveries. Unless an earlier date for delivery is required under the terms of this
Agreement, Buyer shall, at least 1 Business Day prior to the Closing Date deliver to Escrow Agent each of the
following items:
(a) Purchase Price. Cash in an amount equal to the balance of the Purchase Price
and any charges payable by Buyer as provided in this Agreement;
(b) Authorization Documents. Instruments acceptable to the Title Company
reflecting the proper power, good standing and authorization for acceptance of the Property by County; and
(c) Documents. Counterparts of any other documents required to be executed
under the terms of this Agreement.
4.2.2 Failure to Deliver. The failure of Buyer to make any delivery required above to Escrow
Agent within the time set forth above shall constitute a material breach by Buyer.
4.2.3 Seller's Deliveries. Unless an earlier date for delivery is required under the terms of this
Agreement, Seller shall, prior to the Closing Date, deliver to Escrow Agent each of the following items:
(a) Grant Deed. One original Grant Deed executed by Seller in the form of the
grant deed and attached as Exhibit "D" ("Grant Deed");
(b) Certificate of Non-Foreign Status. One original of the Certificate of Non-
Foreign Status executed by Seller certifying Seller is a non-foreign person in the form of Exhibit "E" and 1 original
of the completed California Form 597-W executed by Seller;
(c) Documents. Executed counterparts of any other documents required to be
executed under the terms of this Agreement.
4.2.4 Failure to Deliver. The failure of Seller to make any delivery required above to Escrow
Agent within the time set forth above shall constitute a material breach by Seller.
4.3 Dating Documents. Escrow Agent shall date any of the documents deposited into Escrow under
Sections 6.2.1 and 6.2.3 below as of the date of the Close of Escrow.
4.4 Close of Escrow. Provided that Escrow Agent shall not have received written notice of the
termination of the Escrow and this Agreement, Escrow Agent shall close the Escrow on the Closing Date prior to the
Latest Closing Date by (i) filing for record the Grant Deed and such other documents as may be necessary to procure
the Title Policy and transfer the Property to County, and (ii) delivering funds and documents as set forth in this
Agreement WHEN AND ONLY WHEN each of the conditions set forth below has been satisfied.
4.4.1 Funds and Instruments. All funds and instruments required pursuant to Section 6.2
have been delivered to Escrow Agent.
4.4.2 Satisfaction of Conditions Precedent. Each of the conditions precedent set forth in
Article 3 has been, or upon such Close of Escrow shall be, satisfied as provided for in Article 3.
-5-
4.5 Recordation. Escrow Agent shall record the Grant Deed.
4.6 Earlier Closing. If all of the conditions set forth herein become satisfied at a date earlier than the
Closing Date, Escrow Agent shall close the Escrow at such earlier date provided Escrow Agent obtains the consent
of Buyer and Seller to do so.
ARTICLE 5
PRORATION, FEES AND COSTS
5.1 Prorations. The following items shall be prorated between Seller and Buyer at the Close of
Escrow by increasing or decreasing, as the case may be, the funds to be delivered by Buyer at the Close of Escrow.
5.1.1 Taxes and Assessments. Real property taxes, assessments and personal property taxes
with respect to the Property shall be prorated based upon the latest available tax information such that Seller shall be
responsible for all such taxes and assessments accrued against the Property to and include the day prior to the Close
of Escrow. Any supplemental taxes or assessments levied after the Close of Escrow for the period prior to the Close
of Escrow shall be paid by Seller.
5.2 Thirty Day Month. All prorations and/or adjustments called for in this Agreement are to be
made on the basis of a 30-day month, unless otherwise specifically instructed in writing.
5.3 Escrow Fees and Costs.
5.3.1 Seller's Fees and Costs. Seller will pay only Seller's share of any prorated taxes for the
Property.
5.3.2 Buyer's Fees and Costs. Buyer will pay the entire Escrow Agent's escrow fee, all title
insurance premiums necessary to issue the Title Policy, any documentary or other transfer taxes as required by law
and Buyer's share of any prorated taxes for the Property.
5.3.3 Other Fees and Costs. All other fees and costs of Escrow shall be paid by the Buyer.
5.4 Closing Statement. Prior to the Close of Escrow, Escrow Agent shall deliver to each of the
parties for their review and approval a preliminary closing statement setting forth, among other things, the
calculation of prorations and closing costs as allocated in this Article 5. Based on the parties comments, if any,
regarding such preliminary closing statement, Escrow Agent shall revise it and deliver a final, signed version of a
closing statement, dated as of the date of the Close of Escrow to each of the parties prior to the Close of Escrow (the
"Final Closing Statement").
ARTICLE 6
DISTRIBUTION OF FUNDS AND DOCUMENTS
6.1 Deposit of Funds. AH Cash, if any, received hereunder by Escrow Agent shall be, until the Close
of Escrow, kept on deposit with the Escrow Holder.
6.2 Recorded Documents. Escrow Agent will cause the County Recorder of the County to mail
Seller's Grant Deed (and each other document which is herein expressed to be, or by general usage is, recorded)
after recordation, to the grantee, beneficiary or person (i) acquiring rights under said document or (ii) for whose
benefit said document was acquired.
6.3 Other Documents. No later than 2 Business Days after the Close, Escrow Agent shall combine
any original counterparts of a document into fully executed originals and deliver (i) to Buyer, the original Certificate
of Non-Foreign Status and the California Form 593-W and (ii) to Seller and Buyer, originals (or if applicable copies)
of any other nonrecorded document, deposited into Escrow at any time during the Escrow and conformed copies of
all recorded documents.
-6-
6.4 Payment of Funds at Close of Escrow. Escrow Agent will, at the Close of Escrow, wire all
funds in accordance with the Final Closing Statement and the wire transfer instructions provided by the recipient.
6.5 Title Policy. Escrow Agent shall direct the Title Company to issue the Title Policy to the County
of San Diego as of the Close of Escrow.
ARTICLE 7
ASSIGNABILITY
7.1 Assignment by Buyer. Buyer may not, voluntarily or by operation of law, assign or otherwise
transfer any of its rights or obligations under this Agreement without obtaining the prior written consent of Seller,
which consent may be withheld by Seller in its sole and absolute discretion. In the event such consent is received,
any assignee shall assume all obligations imposed on Buyer as if the assignee were the original purchaser named in
this Agreement; provided that no such assignment shall release Buyer from liability hereunder unless expressly so
agreed in writing by Seller.
7.2 Assignment fay Seller. Seller may, at any time, assign or otherwise transfer its rights and
obligations under this Agreement.
ARTICLE 8
BREACH; REMEDIES
8.1 LIQUIDATED DAMAGES. IF THERE IS A DEFAULT BY BUYER UNDER THIS
AGREEMENT, OR IF THE ESCROW SHALL FAIL TO CLOSE FOR ANY REASON OTHER THAN
SELLER'S DEFAULT, SELLER WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION
FOR THOSE DAMAGES. SUCH DAMAGES WILL, HOWEVER, BE EXTREMELY DIFFICULT AND
IMPRACTICAL TO ASCERTAIN FOR THE FOLLOWING REASONS: (A) THE DAMAGES TO WHICH
SELLER WOULD BE ENTITLED IN A COURT OF LAW WILL BE BASED IN PART ON THE DIFFERENCE
BETWEEN THE ACTUAL VALUE OF THE PROPERTY AT THE TIME SET FOR THE CLOSE OF ESCROW
AND THE PURCHASE PRICE FOR THE PROPERTY AS SET FORTH IN THIS AGREEMENT; (B) PROOF
OF THE AMOUNT OF SUCH DAMAGES WILL BE BASED ON OPINIONS OF VALUE OF THE PROPERTY,
WHICH CAN VARY IN SIGNIFICANT AMOUNTS; AND (C) IT IS IMPOSSIBLE TO PREDICT AS OF THE
DATE ON WHICH THIS AGREEMENT IS MADE WHETHER THE VALUE OF THE PROPERTY WILL
INCREASE OR DECREASE AS OF THE DATE SET FOR THE CLOSE OF ESCROW. FURTHERMORE,
BUYER ACKNOWLEDGES SELLER HAD OTHER OPPORTUNITIES TO SELL THE LAND AND RELIED
UPON THE REPRESENTATIONS OF BUYER THAT IT WOULD PERFORM AND PURCHASE THE
PROPERTY FROM SELLER. BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH
BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT OR SHOULD THE ESCROW
FAIL TO CLOSE FOR ANY REASON OTHER THAN SELLER'S DEFAULT. BUYER AND SELLER WISH
TO AVOID THE COSTS AND LENGTHY DELAYS WHICH WOULD RESULT IF SELLER FILED A
LAWSUIT TO COLLECT ITS DAMAGES UNDER THIS AGREEMENT.
THEREFORE, THE SUM REPRESENTED BY THE DEPOSIT SHALL BE DEEMED TO
CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S DAMAGES UNDER THE PROVISIONS OF
SECTION 1671 OF THE CALIFORNIA CIVIL CODE AND, EXCEPT AS PROVIDED BELOW, SELLER'S
SOLE REMEDY IN THE EVENT OF THE FAILURE TO CLOSE ESCROW AS THE RESULT OF THE
DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR
FOR ANY REASON OTHER THAN SELLER'S DEFAULT. NOTWITHSTANDING THE FOREGOING, THE
PARTIES AGREE THAT, IN NO EVENT, SHALL THIS LIQUIDATED DAMAGES PROVISION APPLY TO
ANY BREACH OF BUYER'S INDEMNITY OBLIGATIONS OR A BREACH OF BUYER'S OBLIGATIONS
UNDER THIS AGREEMENT OR TO ANY ATTORNEYS' FEES AND COSTS INCURRED IN ENFORCING
ANY OBLIGATIONS OF BUYER UNDER THIS AGREEMENT. BUYER HAS REVIEWED THE EFFECT OF
THIS PROVISION WITH LEGAL COUNSEL AND HAS AGREED THAT SUCH DAMAGES ARE A
REASONABLE AND FAIR ESTIMATE OF THE DAMAGES SELLER MAY SUSTAIN. BY INITIALING THIS
PROVISIONS IN THE SPACES BELOW, SELLER AND BUYER EACH SPECIFICALLY AFFIRM THEIR
RESPECTIVE AGREEMENTS CONTAINED IN THIS SECTION. THIS LIQUIDATED DAMAGE
-7-
PROVISION AND THE LIMITATION OF DAMAGES TO THE LIQUIDATED DAMAGES AMOUNT IS
SUBJECT TO AND CONDITIONAL UPON BUYER NOT BRINGING AN ACTION AGAINST SELLER TO
SPECIFICALLY ENFORCE THIS AGREEMENT OR WHICH RESULTS IN A NOTICE OF LITIGATION
BEING FILED FOR RECORD AGAINST THE PROPERTY.
SELLER'S INITIALS BUYER'S INITIALS
ARTICLE 9
GENERAL PROVISIONS
9.1 Construction of Agreement. The agreement contained herein shall not be construed in favor of
or against either party, but shall be construed as if both parties prepared this Agreement.
9.2 Captions. The captions used herein are for convenience only and are not a part of this Agreement
and do not in any way limit or amplify the terms and provisions hereof.
9.3 Governing Law. This Agreement and the documents in the form attached as exhibits hereto shall
be governed by and construed under the laws of the State of California.
9.4 Time of the Essence. Time is of the essence of each and every provision of this Agreement and
Seller and Buyer, by execution of this Agreement, specifically acknowledges the importance of observing each and
every time period in this Agreement.
9.5 Successors and Assigns. Subject to the restrictions and prohibitions on assignment set forth in
the Agreement, each and all of the covenants and conditions of this Agreement shall, subject to the restrictions on
transfers herein provided, inure to the benefit of and shall be binding upon the successors in interest of Seller, and,
the successors, heirs, representatives and assigns of Buyer. As used in the foregoing, "successors" shall refer both to
the parties' interest in the Property and to the successors to all or substantially all of their assets and to their
successors by merger or consolidation.
9.6 Remedies Cumulative. Except as provided in Section 10.2, all rights, options and remedies of
Seller contained in this Agreement shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Seller shall have the right to pursue any one or all of its legal or equitable remedies.
9.7 Waiver. No waiver by Seller or Buyer of a breach of any of the terms, covenants or conditions of
this Agreement by Seller or Buyer shall be construed or held to be a waiver of any succeeding or preceding breach
of the same or any other term, covenantor condition herein contained. No waiver of any default hereunder shall be
implied from any omission by the other party to take any action on account of such default if such default persists or
is repeated, and no express waiver shall affect default other than as specified in such waiver. The consent or
approval by Seller or Buyer to or of any act by the other party requiring consent or approval shall not be deemed to
waive or render unnecessary consent or approval to or of any subsequent similar acts.
9.8 Attorney's Fees. In the event of any litigation or judicial action in connection with this
Agreement or the enforcement thereof or the enforcement of any indemnity obligation hereunder, the prevailing
party in any such litigation or judicial action shall be entitled to recover all costs and expenses of any such judicial
action or litigation (including, but not limited to, reasonable attorneys' fees, costs, expenditures and fees) from the
other party.
9.9 Severabilitv. In the event that any phrase, clause, sentence, paragraph, section, article or other
portion of this Agreement shall become illegal, null or void or against public policy, for any reason, or shall be held
by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining portions of
this Agreement shall not be affected thereby and shall remain in force and effect to the fullest extent permissible by
law and consistent with the underlying intent and purpose of this Agreement.
9.10 Gender and Number. In this Agreement (unless the context requires otherwise), the masculine,
feminine and neuter genders and the singular and the plural include one another.
9.11 Real Estate Brokerage Commission. Each party represents and warrants to the other that it has
not dealt with any broker, finder or other party, whether or not licensed, who may be entitled to a commission,
finder's fee or similar payment, and hereby indemnifies, protects, defends (with legal counsel acceptable to the other
party) and holds the other party free and harmless from and against any and all costs and liabilities, including,
without limitation, reasonable attorneys' fees, for causes of action or proceedings which may be instituted by any
broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of such party in
connection with this transaction. This indemnification shall survive the Close of Escrow. The broker, if any, shall
not be entitled to any monies or other recovery realized by Seller arising out of Buyer's default or Seller's exercise
of remedies hereunder.
9.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto
pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations
and understandings of the parties hereto, oral or written, are hereby superseded and merged herein. The foregoing
sentence shall in no way affect the validity of any instruments executed by the parties in the form of the exhibits
attached to this Agreement.
9.13 Notice and Payments. Any notice to be given or other document to be delivered by any party to
the other or others hereunder, and any payments from Buyer to Seller, may be delivered in person to an officer of
any party, or may be deposited in the United States mail in the State of California, duly certified or registered, return
receipt requested, with postage prepaid, or by Federal Express or other similar overnight delivery service and
addressed to the party set forth in the Basic Terms. Any party hereto may from time to time, by written notice to the
other, designate a different address which shall be substituted for the one above specified. Unless otherwise
specifically provided for herein, all notices, payments, demands or other communications given hereunder shall be
in writing and shall be deemed to have been duly given and received (i) upon personal delivery, (ii) as of the third
business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid,
addressed as set forth above, or (iii) the actual business day of delivery after deposit with Federal Express or other
equivalent overnight delivery system.
9.14 No Partnership or Joint Venture. Seller and Buyer shall not, by virtue of this Agreement, in
any way or for any reason be deemed to have become a partner of the other in the conduct of its business or
otherwise, or a joint venturer. In addition, by virtue of this Agreement there shall not be deemed to have occurred a
merger of any joint enterprise between Buyer and Seller.
9.15 Modification. No modification, waiver, amendment, discharge or change of this Agreement shall
be valid unless the same is in writing and signed by the party against which the enforcement of such modification,
waiver, amendment, discharge or change is or may be sought.
9.16 Joint and Several Liability. If either party consists of more than one person or entity, the
liability of each such person signing this Agreement shall be joint and several.
9.17 Counterparts. This Agreement may be executed in counterparts, each of which, when taken
together, shall constitute a fully executed original.
9.18 Construction of Agreements and Liability. Each party has had this Agreement reviewed by
legal counsel and further agrees that any rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto.
9.19 Limitation, on Damages. Notwithstanding anything to the contrary set forth in this Agreement, in
no event shall Seller or Buyer be liable for any consequential, special or punitive damages. This limitation shall
survive the Close of Escrow.
-9-
9.20 Exhibits and Schedules. All exhibits and schedules attached hereto are incorporated herein by
reference.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date set forth
below.
SELLER:
REAL ESTATE COLLATERAL MANAGEMENT
COMPANY, a Delaware corporation
By:
Name: Fred R. Schimel
Title: Vice President
BUYER:
PALOMAR FORUM ASSOCIATES, L.P.,
a California limited partnership
y
Name
Davis Carlsbad Gen Rep/ Purchase A^eement 3.2 Acres 930?
-10-
CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (i) accept the foregoing Agreement, (ii) be escrow agent
under said Agreement and (iii) be bound by said Agreement in the performance of its duties as escrow agent.
DATED: CHICAGO TITLE INSURANCE COMPANY
("Escrow Agent")
By:
Name:_
Title:
EXHIBITS
Exhibit "A" Defined Terms
Exhibit "B" i Legal Description of Land
Exhibit "C" General Conditions of Escrow Agent
Exhibit "D" Grant Deed
Exhibit "E" Certificate of Non-Foreign Status
Exhibit "F" Preliminary Title Report
EXHIBIT "A"
DEFINED TERMS
Except as the context otherwise requires, all defined terms shall have the meaning set forth below.
"Agreement" means this Purchase Agreement and Escrow Instructions and all exhibits attached to this Agreement.
"Business Day" means any day other than a Saturday or Sunday or legal holiday in the State of California. In the
event that the date for the performance of any covenant or obligation under this Agreement shall fall on a Saturday,
Sunday or legal holiday, the date for performance thereof shall be extended to the next Business Day.
"Close of Escrow" means the consummation of the purchase of the Property by Buyer from Seller and the
recordation of Seller's Grant Deed in the County real property records.
"Closing Date" means the date set forth in the Basic Terms.
"County" means San Diego County.
"Deposit" refers collectively to Buyer's Deposit described in Item 4 of the Basic Terms, together with all interest
earned thereon, if any.
"Effective Date" means the date set forth in the first paragraph of the Agreement.
"Escrow" means the escrow opened by Escrow Agent pursuant to the terms of the Agreement.
"Escrow Agent" means the escrow agent identified in Item 8 of the Basic Terms.
"Opening of Escrow" means the date Escrow Agent executes the consent of Escrow Agent attached to the
Agreement.
"Property" means the approximately 3.2 acres of unimproved land more particularly described in Exhibit "B"
hereto.
"Purchase Price" means the purchase price to be paid by Buyer to Seller for the Property as set forth in Item 4 of
the Basic Terms.
"Seller Parties" means the past, present and future officers, directors, partners, members, shareholders, employees,
affiliates and agents of Seller.
"Title Company" means the title company identified in Item 8 of the Basic Terms.
EXHIBIT "B"
Property
Parcel 2003-0152 A
THAT PORTION OF LOT 6 OF SECTION 3, IN TOWNSHIP 13 SOUTH, RANGE 3 WEST, SAN
BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID SECTION 3; THENCE NORTH 46°29'37" EAST
(NORTH 46°29'52" EAST PER RECORD OF SURVEY NO. 15225), 746.80 FEET; THENCE SOUTH 00°53'29"
WEST, 522.49 FEET TO THE SOUTHERLY LINE OF SAID SECTION 3; THENCE WESTERLY ALONG
SAID SOUTHERLY LINE NORTH 89°06'31" WEST (NORTH 89°06'16" WEST PER RECORD OF SURVEY
NO. 15225), 533.59 FEET TO THE TRUE POINT OF BEGINNING.
EXHIBIT "C"
General Conditions of Escrow Agent
[To Be Supplied]
EXHIBIT "D"
GRANT DEED
(See Attached Pages)
Policy No. 33040354P -U50
Page 3
SCHEDULE B (CONT.)
Part II
BECOME FOR THB FIRST TIME DISCLOSED TO THE COMPANY, BETWEEN THE DATE THIS
PRO FORMA POLICY HAS PREPARED AND THB ULTIMATE DATE OF THE POLICY OF TITLE
INSURANCE. THIS PRO FORMA POLICY DOES NOT REFLECT THE PRESENT CONDITION OF
TITLE BUT, RATHER, INDICATES THE FORM OF TITLE INSURANCE POLICY, TOGETHER
WITH THE SCHEDULES THEREOF AND THE ENDORSEMENTS THERETO, WHICH THE COMPANY
IS PREPARED TO ISSUE WHEN ALL NECESSARY DOCUMENTS ARE RECEIVED AND ALL ACTS
PERFORMED TO ITS SATISFACTION. THIS PRO FORMA POLICY IS TO BE USED FOR
INFORMATIONAL PURPOSES ONLY, IS NOT A COMMITMENT TO INSURE, AND NO
LIABILITY IS ASSUMED BY ITS ISSUANCE.
JP
O.TAMC - 12/NS/88
CHICAGO TITLE COMPANY
925 "B" STREET, SAN DIEGO, CA 92101
(619)544-6254 Fax (619)544-6229
October 1, 2003
LARRY NELSON
PALOMAR FORUM ASSOCIATES, L.P.
1420 BRISTOL STREET NORTH, #100
NEWPORT BEACH, CA 92130
Escrow No. 33040354 - U49
Property CHOUMAS PAPPAS, CA
Dear Mr. Nelson:
This transaction has been completed, and we enclose the following:
Closing Statement
Check in the amount of $100.00
Copy of recorded Deed
Non-Foreign Affidavit
Calif. Form 593-W
Any recorded documents to which you are entitled will be mailed to you directly
from the County Recorder, and any policy of title insurance to which you are
entitled will be mailed to you under separate cover.
Please let us know if you require anything further. Thank you for allowing us
to be of service.
Sincerely,
Brandt
Escrow Officer
(619) 544-6254
cc: Steven Casselberry (w/enclosures)
GENERIC1 -06/1S/9Sbk
CERTIFICATE OF NON-FOREIGN STATUS
(U.S. PARTNERSHIP TRANSFEROR)
Section 1445 of the Internal Revenue Code of 1986, as amended ("Code"), provides that a
transferee (buyer) of a U.S. real property interest must withhold tax if the transferor (seller) is a
foreign person. Sections 18805 and 26131 of the California Revenue and Taxation Code pro vide that
a transferee (buyer) of a California real property interest must withhold tax if withholding is required
by Section 1445 of the United States Internal Revenue Code.
To inform Pulte Home Corporation, a Michigan corporation ("Transferee"), that withholding
of tax under Section 1445 of the Code is not required upon disposition of certain real property to the
Transferee by Real Estate Collateral Management Company, a Delaware Corporation ("Transferor"),
the undersigned hereby warrants, represents and certifies the following on behalf of the Transferor:
1. The undersigned is the duly and acting Vice President of the Transferor.
2. The Transferor is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations), but rather is a partnership formed under the laws of one of the United States.
3. The Transferor's U.S. employer identification number is 94-2248532.
4. The Transferor's office address is 1903 Wright Place, Suite 180, Carlsbad, California
92008.
[Remainder of Page Intentionally Left Blank]
RECM/La Costa Oaks/Pulte
Certificate of Non-Foreign Status
27817-6; 1859862.3 9/14/03
5. The Transferor understands that this certification may be disclosed to the Internal
Revenue Service by the transferee and that any false statement contained herein could be punished
by fine, imprisonment, or both.
Under penalty of perjury the undersigned declares that the undersigned has examined this
certification and to the best of its knowledge and belief it is true, correct, and complete.
RECM:
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY,
a Delaware corporation
Name: Fred R. Schimel
Title: Vice President
RECM/La Costa Oaks/Pulte
Certificate of Non-Foreign Status
27817-6; 1859862.3 . 9/14/03
09/16/2003 TUE 08:19 FAX 7609292705 MORROW DEVELOPMENT ->->-» HFC @]002/002
YEAR Real Estate Withholding Exemption Certificate and
2003 Waiver Request for Non-Individual Sellers
CALIFORNIA FORM
593-W
Seller's Information
O CA core, no. flg F&N O SOS f s no. d Social securily no.Nam»
^L
Addreec
City, Sisle. ZIP Gsd«
Private Mailbox no.Hole: If you ao rtoi lurnich your lax 1 0
numoer 1HK omifoie is void.
Daytime number
Properly address (II no si vide parofiHjumbcr and county)
Ownership
peroenlage
Read the lollowmo and check the besropriate box. See liae-by-fliw Instructions, Part I - Withholding Exemption Certificate.
YES
1. is me total sales price of this property, be/ore applying your percentage of ownership, $100,000 or less? a]
2. Is the seller a corporation that is either qualified through the California Secretary of State or has a permanam place of
business in California? Gtf
3. Is tfte sailer a partnership wiifi recorded title to tfte property in rhe name of the partnership?
(If yes, the partnership must Still lile a California tax return to report the sale and withhold on foreign and domestic nonresident
partners as required, Get FTB Pub. 1017. Nonresident Withholding Partnership Guidelines, for withholding information.) D
4. Is the seller (iBuutded title holder) a limited liability company (LLC) that Is classified as a partnership and is not a disregarded single member
LLC for federal arid California income tax purposes?
(If yes, the LLC must still file a California lax return to report the sale and withhold on foreign and domestic nonresident members as
required. Gel FTB Pub. 1017, Nonresident Withholding Partnership Guidelines, for withholding information.) D
5. Is Ihe seller a lax-exempt entity under cither California or federal taw? Q
6. Is ins seller an irrevocable trust with al least one trustee who Is a California resident? (If yes, the trust must slit! file a California
tax return to report tho sale and withhold when distributing California source taxable income to nonresident beneficiaries as required.
Gel FTB Pub. 1023. Nonresident Withholding independent Contractor. Rent & Royalty Guidelines, for withnoiding information.) Q
7. Is the seller an estate where the decedent was a California resident at the time of death? (if yes. the estate must still file a California fiduciary
tax return to report tho sale and withhold when distributing California source taxable income to nonresident beneficiaries as required.
Gel rTB Pub. 1023, Nonresident Withholding Independent Contractor. Rent & Royalty Guidelines, for withfiofdino Information.) D
8. Is thri seller a dank or a bank acting as a fiduciary lor a trust? D
8. Is the seller an insurance company. Individual Retirement Account (IRA), or qualified pension/profit sharing plan? D
NOa
a
0
0
Under penalties of perjury. I hereby certify Itiai the intormaTion provided above is, lo the best ot my knowledge, true and correct. If conditions change, I
will promptly inform the withholding agent. I understand that completing this lorm does not exempt me from filing a California Incomb or franchise tax return torepon this sale. ^
A fc . SiKirnfi. I . , \J \L(LSellers name and litle
Seller's signature.Date:
If you answered "YES" to any of the above questions. STOP HERE. You are exempt from the real estate withholding requirements. Provide this form to your
escrow company or tlie buyer (withholding agent).
If you answered "NO" to all ol trie above questions, you are subject to the real estate withholding requirements. The required withholding is 3 1/3 percent of the
total sales price. Do you expect yuur lax liability from the sale of this property to be subslantially less than that amount? If so. would you like to request a
reduced amount ol withholding?
D Yes. Complete the Withholding Waiver Request (Part II) and send it to the Franchise Tax Board.
D No. STOP HEftE. Your escrow officer will withhold 31/3 percent ol the total sales price and send it to us on your behalf. Obtain the seller's
copy of Form 597. flea/ Estate Withholding Tn Statement, from Ihe escrow officer to attach to your California income tax return whan
you tile and claim the amount withheld.
Withholding Aaenl: If you h$ve a requirement to withhold, complete Form 597, Real Estate Withholding Tax Statement, and send one copy to us with the
withholding payment and give two copies to the seller. Refer to the Form 597 Instructions.
For Privacy Act Notice, get Form FTB 1131.593W03103 Form 593-W C2 (NEW 12-2002) Side 1
SEP 16 '03 11=31 7609292705 PflGE.02
CHICAGO TITLE COMPANY
BUYER'S/BORROWER'S SETTLEMENT STATEMENT
ESCROW NUMBER: 05880-033040354-001 ORDER NUMBER: 05880-033040354
CLOSING DATE: 09/30/03 CLOSER: Lori Brandt
BUYER: PALOMAR FORUM ASSOCIATES, L.P.
SELLER: REAL ESTATE COLLATERAL MANAGEMENT
PROPERTY: CHOUMAS PAPPAS, CA
PAGE: 01
Sales Price
Deposits
Received 09/30/03 FUNDS TO CLOSE
Received 09/15/03 DEPOSIT
TOTAL RECEIPTS
Settlement or Closing Fee
Title Insurance
Funds Due To Buyer At Closing
CHARGE BUYER CREDIT BUYER
$ 92,900.00 $
90,095.00
5,000.00
95,095.00
1,500.00
595.00
100.00
TOTALS 95,095.00 $95,095.00
RECORDING REQUESTED BY DEPARTMENT OF GENERAL
SERVICES FOR THE BENEFIT OF THE COUNTY OF SAN DIEGO
PER GOVERNMENT CODE SECTION 27383
Recorded at the request oi
Chicago Title
WHEN RECORDED, PLEASE RETURN
THIS INSTRUMENT TO:T
(MAIL STATION A45)
Clerk, Board of Supervisors
San Diego County Administration Center
1600 Pacific Highway
San Diego, California 92101
3 3 OVD-?
THE ORIGINAL OF THIS BOCUHEHT
ON SEP 30. 2003
2003-1200574
GREGORY J. SHITH, COUNTY RECORDER
SAN DIEGO COUNTY RECORDER'S OFFICE
TIME: 9:43 AH
SPACE ABOVE FOR RECORDER'S USE ONLY
Assessor's Parcel
No.: 264-041-19
GRANT PEED
PARK
NO TRANSFER TAX DUE
REAL ESTATE COLLATERAL MANAGEMENT COMPANY, a Delaware Corp
Project: PALOMAR FORUM
W.O.No.: TA5100
Parcel No.: 2003-0152-A
Log No.: 2003-02-13
Fund:
For a valuable consideration do(es) hereby GRANT to.the COUNTY OF SAN DIEGO for PARK
and RECREATIONAL PURPOSES ONLY all that real property .in the County of San Diego,
State of California described as follows:
THAT PORTION OF LOT 6 OF SECTION 3, IN TOWNSHIP 13 SOUTH, RANGE 3 WEST, SAN
BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID SECTION 3; THENCE
NORTH 46°29'37" EAST (NORTH 46°29'52" EAST PER RECORD OF SURVEY NO.
15225), 746.80 FEET; THENCE SOUTH 00°53'29" WEST, 522.49 FEET TO THE
SOUTHERLY LINE OF SAID SECTION 3; THENCE WESTERLY ALONG SAID
SOUTHERLY LINE NORTH S9°06'31" WEST (NORTH 89°06'16" WEST PER
RECORD OF SURVEY NO. 15225), 533.59 FEET TO THE TRUE POINT OF
BEGINNING.
Dated this _day of September, 2003.
Real Estate Collateral Management Company,
a Delaware corporation
Fred R. Schimel
Vice-President
STATE OF
SS
COUNTY OF
cj 2ce>3On _
and for said State, personally appeared
before me, the undersigned, a Notary Public in
Personally known to me (or proved to me on the |j~
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), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:,
FOR NOTARY SEAL OR STAMP
OFFICIAL SEAL
DIANA C MORENO
NOTARY PUBLIC, STATE OF ILLINOIS\
MY COMMISSION EXPIRES: 10KM/OT
This is to certify that the interest in real property conveyed by the foregoing deed or
grant to the County of San Diego, a political subdivision, is hereby accepted on behalf
of the Board of Supervisors of said County of San Diego pursuant to authority conferred
by Resolution of said Board adopted on January 7, 1992, and the grantee consents to
recordation thereof by its duly authorized officer.
Dated:-O3
3uty Director
Real Property Division
Department of General Services
November 12, 2003
DAVIS PARTNERS
LIMITED LIABILITY COMPANY
Mr. Mark Webb
Parks & Recreation
County of San Diego
5201 Ruffm Road, Suite P
San Diego, CA 92123
Re: Trust Account for Maintenance & Monitoring of Conservation Land
Dear Mr. Webb:
Per Recommendation No. 2(a) of the Minute Order No. 7 by the County of San Diego,
Board of Supervisors dated July 24, 2002, enclosed please find a check in the amount of
$48,000 to establish a trust account to maintain and monitor the 3.2 acres of conservation
land for the project known as Palomar Forum.
Should you have any questions, please feel free to contact me at 949-752-2066.
Thank you,
c.
Larry E. Helson
Principa
LEN/kat
CC: Maeve Hanley, County of San Diego
Anne Hysong, City of Carlsbad
Barry Jones, Helix Environmental Planning
1420 BRISTOL STREET NORTH • SUITE 100 • NEWPORT BEACH • CA 92660
TEL: 949.752.2066 • FAX: 949.752.8776
(DATE:IF/12/03 CK#:391 TOTAL:$48,000.00** BANK:110-ck - Palomar Forum Checking Acct
'PAYEE:County of San Diego (SAND01)
^roperty Account
110 15600-000
Invoice
11/12/03
Description
Trust Acct for Mgnt & Monitoring
Amount
48,000.00
48,000.00
LITHOUSA SFSL4P CK7S08114P (2/01}
ORIGINAL DOCUMENWPmNTEB;ONHCH6MICAlSREAeTIVEWV»R£H;Wimil\|HC^
Palomar Forum Associates
1420 Bristol Street North
Suite 100
Newport Beach
Ca, 92660
US Bank
4100 Newport Place
Suite 100
Newport Beach, Ca 92660
90-3582/1222
TO THE
ORDER OF
.**** FORTY EIGHT THOUSAND-AND ,00/100 DOLLARS
11/12
County of San Diego
391
$.48,000.00**. .•..'•-!j
^ooo iao335&ii-