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Christine Relph, Esq. (SBN 213984) KIMBALL, TIREY & ST. JOHN LLP 7676 Hazard Center Drive, Ste. 900 San Diego, CA 92108 State Bar No. 077006 (619) 234-1690
Attorneys for PlaintiffGary E. Primm, Trustee o f the Gary E. Primm Family Trust
ELECTRONICALLY FILEDSuperior Court of California,
County of Orange
09/26,2017 at 11:40:00 A M
Clerk of the Superior Court By e Clerk .Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER
Gary E. Primm, Trustee of the Gary E. Primm Family Trust
Plaintiff,
vs.
MICHAEL J. AVENATTI; LISA STORIE- AVENATTI; DOUBLE DOWN, LLC, A DELAWARE LIMITED LIABILITY COMPANY , and ALL UNKNOWN OCCUPANTS
Case No. 30-2017-00935588-CU-UD-CJC
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
DATE: September 27, 2017 TIME: 8:30 AM DEPT: C61
Defendants._)
Plaintiff, Gary E. Primm, Trustee of the Gary E. Primm Family Trust, by and through its
attorneys, KIMBALL, TIREY & ST. JOHN LLP, offers the following points and authorities in
opposition to Defendants MICHAEL J. AVENATTI, LISA STORIE-AVENATTI and DOUBLE
DOWN, LLC, A DELAWARE LIMITED LIABILITY COMPANY’S Motion to Compel
Arbitration and Stay Proceedings:
I
FACTS
This is an action in unlawful detainer commenced by Plaintiff as against Defendants, with
Plaintiffs filing of its Complaint on August 3, 2017. The action is based on expiration of a fixed-term
lease (see Unlawful Detainer case Exhibit 1, Interim Occupancy Agreement).
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On or about May 8, 2006 Plaintiff Gary E. Primm purchased the property located at 618 Via
Lido Nord, Newport Beach, California and acquired a policy of title insurance in which title was free
and clear and showed no lien or encumbrance of any amount, (see Grant Deed, Exhibit A herein and
Title Insurance Policy, Exhibit B herein). As an estate planning strategy said property was transferred
into his family Trust with Gary E. Primm as Trustee.
On or about September 23, 2015, Plaintiff entered into a Residential Purchase Agreement and
Joint Escrow Instructions to sell the subject property to Defendants Michael J. Avenatti and Lisa
Storie-Avenatti. (see California Residential Purchase Agreement and Joint Escrow Instructions,
Exhibit C herein). Said Agreement required Defendants to pay a significant deposit and under an
Interim Occupancy Agreement would pay the sum of $100,000 per month, as rent for a nine month
period during which Defendants would live in property prior to close of escrow scheduled for August
31, 2016. (see Interim Occupancy Agreement, Buyer in Possession Prior to Close of Escrow, Exhibit
D herein).
The Interim Occupancy Agreement was signed by both parties and is for all intents and
purposes, a lease during the period of time that the prospective Buyers (Defendants) are tenants prior
to close of escrow. The Agreement sets for obligations and remedies in the event that escrow does not
close as agreed.
The escrow proceeded in accordance with its terms and except for the fact that Defendants
had not transferred closing funds into escrow was in a position to close when a mere two days prior to
close of escrow a mystery lawsuit was filed by a Swiss Company, Maseco S.A. (see Complaint by
Maseco S.A., Exhibit E herein). This mystery lawsuit incredibly claimed that 10 years ago $10
million dollars was loaned to predecessor owner Robert Herbert and that the payment and interest
was all due 10 years later and now that deadline had passed with no payments from Mr. Herbert.
What followed was an extreme degree of fraud perpetrated on the court and former owner Herbert
and the current owner, Primm Trust. The Primm Trust was not named as a defendant and thus
intervened in the lawsuit. A Motion to Expunge the Lis Pendens was granted, however Maseco filed a
Writ of Mandate seeking to delay and overturn the lower court expungement, (see Order Granting
Expungement of Notice of Pendency of Action, Exhibit F herein). The Court of Appeal denied the
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writ, undeterred, Maseco filed a Petition for Review to the California Supreme Court, which was
denied on January 31, 2017. (see Fourth Appellate District Order, Exhibit G herein and California
Supreme Court Denial of Review, Exhibit H herein).
During this same period Maseco was frivolously appealing the expungement of the Lis
Pendens, it was also engaging in numerous forms of discovery and litigation abuse. The more
noteworthy of which included the failure of Maseco to attend a properly noticed Person Most
Qualified deposition under a Motion to Compel granted by the court on February 27, 2017 and a
failure to respond to a document demand by producing only two documents. One was an alleged 3
page loan agreement and the other a 1 page form with no relevant information. Any claim that a $10
million loan would have generated only two documents is absurd. Defendant Herbert, a prominent
Newport Beach businessman, denied under oath that the loan document was signed by him and stated
it was a forgery. The Court granted an order requiring Maseco to file an undertaking in the amount oi
$150,000 as a condition of maintaining its lawsuit. Maseco disobeyed the Courts’ order and never
posted the undertaking. Local rules of Court require parties to appear at the Mandatory Settlement
Conference, hwoever Maseco did not appear. The Court ordered Maseco to appear and it failed and
refused to do so. Finally the Court had enough and signed an order dismissing the Maseco action with
prejudice. Maseco has filed a notice of appeal in connection with the dismissal, (see Notice of Ruling
Granting Motion to Compel Deposition of Person Most Knowledgeable, Exhibit I herein, and Minute
Order Requiring Plaintiff Masco to post an Undertaking, Exhibit J herein, and Order of Dismissal
With Prejudice, Exhibit K herein).
During the litigation, Chicago Title Company was prevented from issuing a clear title policy.
When the escrow did not close on August 31, 2016, the Avenatti’s had the option to cancel the
escrow. They chose not to do so and continued to live in the subject property rent free after that date.
Following the expungement and the exhausted remedies when the California Supreme Court denied
Maseco’s petition for review on February 15, 2017, Chicago Title notified the parties that it would
issue a title policy to the buyers (Avenatti’s) with no exceptions relating to the Maseco lawsuit. (See
Preliminary Report, Exhibit L herein). At that point, Seller Priram Trust demanded that the Avenatti’s
close escrow. Despite the finality of the expungement of the Lis Pendens, the Avenatti’s refused to
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close escrow. A Demand to Close Escrow was served on the Avenatti’s agent, Rob Smith of Surterre
Properties on March 1, 2017 and again on March 8, 2017. (see Demand to Close Escrow, Exhibit M
and Exhibit N herein).
Defendants Avenatti have failed and continue to fail to close escrow, further they have failed
to pay rent and have failed and continue to fail to vacate as required under the Interim Occupancy
Agreement which governs their occupancy of the subject property and which is the basis for this
Unlawful Detainer action.
II.
A MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS IS
NOT PROPERLY SUSTAINED UNDER THE TERMS OF
THE INTERIM OCCUPANCY AGREEMENT OR PURCHASE AGREEMENT
The Defendants’ Motion to Compel Arbitration and Stay Proceedings is based on the alleged
grounds that any and all disputes between the parties are governed by a written arbitration agreement.
The Defendants allege that the claims asserted by the Plaintiff all arise out of two-interrelated
contracts and that the parties agreed in writing that any dispute or claim in law or arising between
them shall be settled by neutral, binding arbitration. This Unlawful Detainer action is based solely oh
the expiration of fixed-term lease, specifically the Interim Occupancy Agreement which in paragraph
38 specifically excludes unlawful detainer actions from mediation and/or arbitration. However, it
must also be noted that the Residential Purchase Agreement paragraph 22C(1) also excludes unlawful
detainer actions from any mediation or arbitration requirement.
Defendants were permitted to take possession of the property subject to said Interim
Occupancy Agreement and its terms dictate the terms of tenancy during the period prior to close of
escrow. In this case, Defendants failed to cancel escrow while clear title was not available. After
litigation was concluded Defendants failed and continue to fail to close escrow, despite repeated
demands by Plaintiff. Further, Defendants failed to demand Arbitration or take any other action while
they continued to occupy the premises without payment of rent since expiration of the Interim
Occupancy Agreement on August 31,2016. Defendants have failed and continue to fail to pay rent or
vacate the subject property as required under the Interim Occupancy Agreement and this action is
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based solely on that Agreement. Said Interim Occupancy Agreement specifically excludes Unlawful
Detainers from any mediation or arbitration requirement. Under California law, an unlawful detainer
action is an expedited procedure which proceeds quickly from the filing of the Complaint to the trial
of the Unlawful Detainer. For example, a Defendant has only five days after service of a Complaint
to file an Answer (CCP section 1167) instead of the usual 30 days afforded in a regular civil action.
See CCP section 412.20(a)(3).
Further, once a request for trial has been made in an Unlawful Detainer action, the trial must
be set within 20 days. See CCP section 1170.5(a). In an attempt to avoid the expedited procedure of
California State law, the Defendants are misusing this Courf s process to attempt to delay their
removal from the premises when the parties specifically negotiated and agreed in both the Interim
Occupancy Agreement and the Residential Purchase Agreement that Unlawful Detainer Actions were
to be excluded from any mediation or arbitration requirement, thus Defendants’ Motion to Compel
Arbitration and Stay Proceedings must be overruled.
Only after this Unlawful Detainer action was filed and their ongoing occupancy threatened,
did Defendants attempt to demand Arbitration in what appears to be a renewed effort to stall
proceedings and remain in the property rent free while continuing to refuse to close escrow rather
than comply with the terms of the Interim Occupancy Agreement which governs specifically the
terms under which the Defendants occupy the property prior to close of escrow or when escrow does
not close. The Interim Occupancy and the Residential Purchase Agreement both exclude Unlawful
Detainer actions from the mediation or arbitration requirement. For the foregoing reasons, it is
respectfully requested that this Court overrule the Defendants’ Motion to Compel Arbitration and
Stay Proceedings.
III.
CONCLUSION
Respectfully submitted,
DATED: September 26,2017Christine Relph, Esq.KIMBALL, TIREY & ST. JOHN LLP Attorneys for Plaintiff
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EXHIBIT
FIDELITY NATIONAL TITLE COMPANY'
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:AND MAIL TAX STATEMENT TO:
Gary E. Primm P. O. Box 94825 Las Vegas, Nevada 89193-4825
Order No. 9891941- Escrow No. 30390-BF Parcel No. 4 2 3 - 2 3 1 - 0 5
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT DEED
THE UNDERSIGNED GRANTOR(S) DECLARE(S) THAT DOCUMENTARY TRANSFER TAX IS 511,770.00 X computed on full value o f property conveyed, or
_______ computed on full value less liens or encumbrances remaining at the time o f sale._______ unincorporated area: X City o f Newport Beach, and
FOR A VALUABLE CONSIDERATION, receipt o f which is hereby acknowledged,Robert J. Herbert, an Unmarried Man
hereby GRANTS to Gary E. Primm, a n u n m a r r ie d man
the following described real property in the County o f Orange, State o f California:
Lots 65 and 66 and the Northwesterly half o f Lot 64, Tract No. 907, as per Map recorded in Book 28 Pages 25 and 26 o fMiscellaneous Maps, in the City o f Newport Beach, County of Orange, State o f California, as per map recorded in Book 28Pages 25 and 26 o f Miscellaneous Maps, in the Office o f the County Recorder o f Orange County, California.
D ate- March 28, 2006 __________________
Robert LT^eLbert
R e c o rd e d i n O fficia l R e co rd s , O ra n g e C o u n ty
T o m D aly , C le rk -R e c o rd e r
illll!lil!lllllll]lilllill:llllllillliiaill.illl 29.00
2006000308065 12:51pm 05/08/061 19 3 0 G 0 2 2
3 8 8 5 .0 0 5 8 8 5 .0 0 2 0 .0 0 0 .0 0 3 .0 0 0 .0 0 0 .0 0 0 .0 0
STATE OF CALIFORNIA
COUNTY OF M ARIN
}} S.S. }
On ' / o u / o i * j, before me, / ) o / f t u & L / r ' personallypersonallyappeared' _ _____ ___
loiown to me (or proved to me on the basis o f satisfactory evidence) to be the personj^) whose name(dXj[s/are subscribed to the within instrument and acknowledged to me thaChe^he/they executed the same irfhisjTieiTtftetr authorized capacity(ios), and that b>Lhjs/ber/thetr signature^) on the instrument the person(s), or the entity upon behalf o f which the personps) acted, executed the instrument.
WITNESS my hand and official seal.
Signature / - y Z -JEAN HAND
Commission # 1480543 Notary Public - Calitomia |
Marin County Mv C om m . Expires Apr 5. 2008
m m m m i
Order No. 9 8 9 1 9 4 1
EXHIBIT "ONE"
L O T S 6 5 A N D 6 6 A N D T H E N O R T H W E S T E R L Y H A L F O F L O T 6 4 O F T R A C T N O . 9 0 7 , IN T H E C I T Y O F N E W P O R T B E A C H , C O U N T Y O F O R A N G E , S T A T E O F C A L I F O R N I A , A S PER M A P R E C O R D E D IN B O O K 2 8 , P A G E S 2 5 T O 2 6 I N C L U S I V E , M I S C E L L A N E O U S M A P S , IN T H E O F F I C E O F T H E C O U N T Y R E C O R D E R O F S A I D C O U N T Y .
A s s e s s o r 's Parcel N o : 4 2 3 - 2 3 1 - 0 5
2 (Rev. 11/17/04)
EXHIBIT
SCHEDULE A
O rd e r N u m b e r: 9 8 9 1 9 4 1 Policy N o .: 2 7 -0 1 -9 0 9 9 9 8 9 0A m o u n t of Insurance: $ 1 0 , 7 0 0 ,0 0 0 .0 0Premium: $ 8 ,5 6 0 .0 0
Date of Policy: M a y 8 , 2 0 0 6 at 12:51 p.m .
1. Nam e of insured:
G A R Y E. P R IM M , A N U N M A R R IE D M A N
2. T h e estate or interest in the land described herein and w h ich is covered b y this policy is:
A Fee
3 . Title to the estate or interest in the land is vested in:
G A R Y E. P R IM M , A N U N M A R R I E D M A N
4 . T h e land referred to in this policy is situated in the City of N e w p o r t Beach, C o u n ty of O range,State of California, and is described as follows:
S E E E X H IB IT " O N E " A T T A C H E D H E R E T O A N D M A D E A P A R T H E R E O F
T H IS P O L IC Y V A L ID O N L Y IF S C H E D U L E B IS A T T A C H E D
1
C L TA Standard Policy - 1990 Form
Order No. 9891941Policy No. 2 7 -0 1 -9 0 999890
EXHIBIT "ONE-
L O T S 65 A N D 6 6 A N D T H E N O R T H W E S T E R L Y H A L F O F L O T 6 4 O F T R A C T N O . 9 0 7 , IN T H E C I T Y O F N E W P O R T B E A C H , C O U N T Y O F O R A N G E , S T A T E O F C A L I F O R N I A , A S PER M A P R E C O R D E D IN B O O K 2 8 , P A G E S 25 T O 26 IN C L U S IV E , M I S C E L L A N E O U S M A P S , IN T H E O F F IC E O F T H E C O U N T Y R E C O R D E R O F S A I D C O U N T Y .
A ss e sso r 's Parcel N o; 4 2 3 - 2 3 1 -0 5
J T
2
C L T A Standard Policy - 1 990 Form
Order No. 9891941Policy No. 2 7 -0 1 -9 0 9S98 90
SCHEDULE B
E X C E P T I O N S F R O M C O V E R A G E
Th is policy does not insure against loss or damage (and the C o m p a n y will not pay costs, attorney's fees or expenses) w h ich arise by reason of;
P A R T I
All matters set forth in paragraphs 1 through 5 inclusive on the cover of this policy under the caption Part I of Schedule B.
P A R T II
1. Property taxes, w hich are a lien not yet due and payable, including any assessmentscollected with taxes to be levied for the fiscal year 2 0 0 6 - 2 0 0 7 .
2. T h e Iren of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3 .5(C o m m e n c in g with Section 75) of the Revenue and Taxation code of the State of California.
3 . W a te r rights, claims or title to w ater, w h e the r or not disclosed by the public records,
4 . A n y rights in favor of the public w h ich m ay exist on said land for access, parking, beach or recreational uses, if said iand or portions thereof w e re at any time used b y the public for such purposes.
5 . A n y adverse claim based upon the assertion that so m e portion of said land has beencreated b y artificial means, or is land that has accreted to such portion so created.
6 . Easem ent(s) for the purposes(s) s h o w n b e lo w and rights incidental thereto as delineatedor as offered for dedication, on the m ap of said tract.
Purpose: Public utilities
A ffects : T h e S o u thw e ste rly 4 feet of said land
3
C L T A Standard Poficy - 1990 Form
C o v e n a n ts , conditions and restrictions in the declaration of restrictions but omitting any co venants or restrictions, if any, based upon race, color, religion, sex, sexual orientation, familial status, martial status, disability, handicap, national origin, ancestry or source of incom e, as set forth in applicable state or federal la w s, except to the extent that said co ven a n t or restriction is permitted by applicable law.
Recorded: Book 2 2 8 , Page 1, of Official Records
Said covenants, conditions and restrictions provide that a violation thereof shall not defeat the lien of any m ortgage or deed of trust made in good faith and for value.
Order No. 9891941Policy No. 2 7 -0 1 -9 0 999890
All rights of enforcem ent approval, maintenance, inspection, supervision, control and operation created, imposed, set forth and provided in said Declaration w ere conveyed to Lido Isle C o m m u n ity Association, a corporation, b y deed recorded Decem ber 10, 1 9 2 8 in Book 2 1 8 , Page 4 7 5 , of Official Records.
All reversionary rights w e re conveyed to Lid Isle C o m m u n ity Association, by deed recorded Decem ber 3, 1 9 3 8 in Book 9 6 9 , Page 4 2 7 , of Official Records.
Modificationfs) of said covenants, conditions and restrictions
Recorded: N o ve m b e r 2 4 , 1 9 8 7 , instrument N o . 8 7 - 6 9 5 4 7 2 , of OfficialRecords
Modificationfs) of said covenants, conditions and restrictions
Recorded: April 15, 2 0 0 2 , Instrum ent No. 2 0 0 2 0 3 1 4 4 8 6 , of Official Records
E N D O F S C H E D U L E B
4
C L T A Standard Policy - 1990 Form
EXHIBIT
DocuStgn Envelope fD: EABD7E15-8Q3tMS82-S077-45ABA059D929
$
C A L I F O R N I A A S S O C I A T I O N OF R E A L T O R S
CALIFORNIA RESIDENTIAL PURCHASE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS(C A R . Form RPA-CA, Revised 11/14)
Date Prepared: 09/23/2015______1 OFFER*
A. TH IS IS AN O FFE R FROMB, TH E R E A L P R O P ER TY to be acquired is
Newport Beach (Cihrt. Orange
Michael J . Avenatd, U s a Storfe~AvenattI. and/or their Asslngee(s)
C. TH E P U R C H A SE PRICE offered is Fifteen Million. Seven Hundred Fffiv Thousand
('Buyer')._____________________________ _________________ _____ . situated inJCounty), CaBfomia, 92663 (Zip Code). Assessor’s Parcel No. 423-231*05 r Propertyl.
618 Via Ucto Nord. Newport Beach. C A 92663
____________________________________________Dollars S 15.750.000.00________________Auousf 31. 2016 or Sooner*________ (d a le )(o r[]___________ Days After Acceptance).D. C LO S E O F E S C R O W shall occur on |xj_
E. Buyer and Seller are referred to herein as the 'Parties.' Brokers are not Parties to this Agreement.AGENCY*A. DISC LO SU R E: The Parties each acknowledge receipt of a 0 “Disdosure Re9ardin9 Real Estate A *enc* Relationships"
(C A R . Form AD).C O N FIR M ATIO N ; The following agency relationships are hereby confirmed for this transaction:Listing A g e n t_____________ __________ Teles Properties, Inc__________________________ (Print Firm Name) is the agent of (check one):l^ lh e Seller exclusively; or Q both the Buyer and Seller.Selling A g e n t_________________________ Surterre Properties. Inc ________________________ (Print Firm Name) (if not the same as theListing Agent) is the agent of (check one): [x] the Buyer exclusively; o r [ j the Seller exclusively; or [J both the Buyer and Seller.P O TE N TIA L L Y C O M P ETIN G B U Y E R S A N D SELLER S: The Parties each acknowledge receipt of a 'PossibleRepresentation of More than One Buyer or Seller - Disclosure and Consent" (C A R . Form PRBS).
FINANCE TE R M S : Buyer represents that funds will be good when deposited with Escrow Holder.A. INITIAL D EP O S IT: Deposit shall be in the amount o f.................................................................................................... $ ____________200.0PO.OQ
(1) Buyer Direct Deposit Buyer shall deliver deposit directly to Escrow Holder by electronic fundstransfer, [ ] cashier's check. Q personal check, jxj other Wire Transfer____________ within 3 business daysafter Acceptance (o r ............... ............... ................... ..... - ■■■________ }:
OR (2) Q Buyer Deposit with Agent Buyer has given hie deposit by personal check (or - )
B.
C.
to the agent submitting the offer (or to ), made payable to___________ ______ . The deposit shall be held uncashed unlit Acceptance and then depositedwith Escrow Holder within 3 business days after Acceptance (or -------------------------------- ).Deposit checks given to agent shall be an original signed check and not a copy.
(Note: Initial and increased deposits checks received by agent shall be recorded in Broker's trust fund log.)B . INCREASED DEPOSIT: Buyer shaQ deposit with Escrow Holder an increased deposit En the amount o f.................. $.
within — Days After Acceptance ( o r _____________________ on or before 11/15/15______________________ ).If the Parties agree to liquidated damages in this Agreement, they also agree to incorporate the Increased deposit into the liquidated damages amount in a separate liquidated damages clause (C A R . Form RlD)at the time the Increased deposit is delivered to Escrow Holder.
C . [xj A L L C ASH O FFER : No loan is needed to purchase the Property. This offer is N O T contingent on Buyer obtaining a loan. Written verification of sufficient funds to close this transaction IS A T T A C H E D to this offer or 0 Buyer shall, within 3 (or ) Days After Acceptance. Deliver to Seller such verification.
D. LO A N (S ):(1) FIR S T LO A N : in the amount o f ................................................................................................................................... S .
This loan will be conventional financing or Q FHA, Q VA. Q Seller financing ( C A R . Form SFA).assumed financing ( C A R . Form AFA), Q O t h e r _______________________ . This loan shall be at a fixed
rate not to e xcee d % or. Q an adjustable rate loan with initial rate not to e x ce e d __________% .
800.000.00
Regardless of the type of loan, Buyer shall pay points not to exceed % of the loan amount(2) Q SEC O N D LO A N In the amount o f ............................................................................................................................ S.
This loan will be conventional financing or Q Seller financing (C A R . Form SFA ), Q assumedfinancing (C A R . Form A FA). O O t h e r _________________________ . This loan shall be at a fixed rate not toexceed__________ % or, Q an adjustable fate loan with Initial rate not to exceed__________ % . Regardless ofthe type of loan. Buyer shall pay points not to exceed___________% of the loan amount.
(3) FHA/VA: For any FH A or VA loan specified in 3D(1), Buyer has 17 ( o r ) Days After Acceptanceto Deliver to Seiler written notice ( C A R . Form FVA) of any lender-required repairs or costs that Buyer requests Seller to pay for or otherwise correct Seller has no obligation to pay or satisfy lender requirements unless agreed in writing. A FHA/VA amendatory clause (C A R . Form FV A C ) shall be a part of this transaction.
A D D ITIO N AL FIN AN CIN G TE R M S : N o n e . _______________________________________________ ___
F. B A LA N C E O F DOW N P A Y M E N T O R P U R C H A SE PRICE In the amount o f . to be deposited with Escrow Holder pursuant to Escrow Holder instructions.
G. PURCRfCSEl^RICE (TCJTTJlPf
14.750.000.00
Buyer's Initials (« 1 9 9 1 -2014 , C e l*
T . Seller’s Initials (tion oNTFAl TORSO. Inc,
R P A -C A R E V IS E D 11/14 (P A G E 1 O F 10)__________________ C A L IF O R N IA R E S ID E N TIA L P U R C H A S E A G R E E M E N T (R P A -C A P A G E 1 O F 10)
SURTERRE PROPERTIES, I4D0 Newport Craltr Drive, Suite 100 NEWPORT llEACII, CA 91660 Plwna; W9.69T.MSS Fax 949.717.7608 618 VI. LWo Non!ROB SMITH__________________________ Produced wtiri itpFotm® by Tiptop* 16070 Fifteen MBa Road. Frasar. Michigan 45026 a ™ Tfot ________________________________________
H. V E R IF IC A TIO N O F D O W N P A Y M E N T A N D C L O S IN G C O S T S : Buyer (or Buyer's lender or loan broker pursuant to paragraph3J(1 )) shall, within 3 (o r ______ ) D ays After Acceptance, Deliver to Seller written verification of Buyer's down payment anddosing costs. ( Q Verification attached.)
I. A P P R A IS A L C O N T IN G E N C Y A N D R E M O V A L : This Agreement is (o r {jif| is N O T ) contingent upon a written appraisal of the Property by a licensed or certified appraiser at no less than the purchase price. Buyer shall, as specified in paragraph 14B(3), in writing, remove the appraisal contingency or cancel this Agreement within 17 (o r ) D a ys After Acceptance.
J . L O A N TE R M S :(1 ) LO A N A P P L IC A T IO N S : Within 3 ( o r ) Days After Acceptance. Buyer shall Deliver to Seller a letter from Buyer's lender orloan broker stating that, based on a review of Buyer's written application and credit report, Buyer is prequalified or preapproved for any N E W loan spedfied in paragraph 3D. If any loan specified in paragraph 3 D is an adjustable rate loan, the prequalification or preapproval letter shall be based on the qualifying rate, not the initial loan rate. ( Q Letter attached.)(2 ) L O A N C O N T IN G E N C Y : Buyer shall act diligently and in good faith to obtain the designated loan(s). Buyer's qualification for the loan(s) specified above fs a contingency of this Agreement unless otherwise agreed in writing, ff there is no appraisal contingency or the appraisal contingency has been waived or removed, then failure of the Property to appraise at the purchase price does not entitle Buyer to exercise the cancellation right pursuant to the loan contingency if Buyer is otherwise qualified for the specified loan. Buyer’s contractual obligations regarding deposit, balance of down payment and dosing costs are not contingencies of this AgreemenL(3) L O A N C O N T IN G E N C Y R E M O V A L :Within 21 ( o r ) Days After Acceptance. Buyer shall, as specified in paragraph 14. in writing, remove the loan contingency orcancel this Agreement. If there is an appraisal contingency, removal of the loan contingency shatl not be deemed removal of the appraisal contingency.(4) Q N O L O A N C O N TIN G E N C Y : Obtaining any loan specified above is N O T a contingency of this Agreem ent If Buyer does not obtain the loan and as a result does not purchase the Property, Seller may be entitled to Buyer's deposit or other legal remedies.(5 ) L E N D E R U M IT S O N B U Y E R C R E D IT S : Any credit to Buyer, from any source, for dosing or other costs that is agreed to by the Parties f Contractual Credit") shall be disdosed to Buyer's lender. If the total credit allowed by Buyer’s lender (“Lender Allowable Credit") is less than the Contractual Credit, then (i) the Contractual Credit shall be reduced to the Lender Allowable Credit, and (ii) in the absence of a separate written agreement between the Parties, there shall be no automatic adjustment to the purchase price to make up for the difference between the Contractual Credit and the Lender Allowable Credit.
K. B U Y E R S T A T E D F IN A N C IN G : Seller is relying on Buyer's representation of the type of finandng spedfied (including but nol limited to, as applicable, all cash, amount of down payment, or contingent or non-contingent loan). Seller has agreed to a specific dosing date, purchase price and to sell to Buyer in reliance on Buyer's covenant concerning finandng. Buyer shall pursue the finandng spedfied in this AgreemenL Seiler has no obligation to cooperate with Buyer’s efforts to obtain any finandng other than that spedfied in the Agreement and the availability of any such alternate financing does not excuse Buyer from the obligation to purchase the Property and dose escrow as specified in this AgreemenL
4. S A L E O F B U Y E R 'S P R O P E R T Y :A . This Agreement and Buyer's ability to obtain finandng are N O T contingent upon the sale of any property owned by Buyer.
OR B. Q This Agreement and Buyer's ability to obtain finandng are contingent upon the sale of property owned by Buyer as spedfied in the attached addendum ( C A R . Form C O P ).
5. A D D E N D A A N D A D V IS O R IE S :A . A D D EN D A :______________________________________________________ |x| Addendum # 1 ( C A R . Form A D M )_____________________
| Back U p Offer Addendum IC .A .R . Form B U O ) I I Court Confirmation Addendum f C A R . Form C C A ISeptic. W ell and Property Monument Addendum ( C A R . Form SW PI)__________________________________________________________Short Sale Addendum ( C A R . Form S S A ) Ixl Other E x c lu d e d Fu rn is h in g s In ve n to ry U s t ~
DocuStgn Envelope ID: EABD7E15-8030-4982-9077-45ABA059D929
Property Address: 618 Via L id o N ord. N ew port Beach. C A 92663____________________________________Date: S e p te m b e r 2 3 .2015
B. B U Y E R A N D S E L L E R A D V IS O R IE S :____________________________ ^Buyer's Inspection Advisory ( C A R . Form BIA)- -»■
Probate Advisorv IC .A .R . Form P AK ) K Statewide Buyer and Seller Advisorv ( C A R . Form S B S A )Trust Advisory ( C A R . Form T A ) R E O Advisory ( C A R . Form R E O )Short Sale Information and Advisory (C .A .R . Form SS IA ) X Other Interim O c c u p a n c y A gre e m e n t
6 , O TH E R T E R M S : ‘ C lose o f E s c ro w s h a ll o c c u r at a tim e o f the B uyer’s ch o o sin g betw een 12/1/15 a n d 8/31/16.A H details o f this transaction are to be h e ld In strict confidence between all parties in vo lv e d in this transaction, regardless o f the outcom e .______________________________________________________________________________________________
7. A L L O C A T IO N O F C O S T SA. IN S P E C TIO N S , R E P O R T S A N D C E R T IF IC A T E S : Unless otherwise agreed in writing, this paragraph only determines who is to pay for the inspection, test, certificate or service {‘Report*) mentioned; it does not determ ine w h o Is to pay for any w ork recom m ended o r Identified in the R e p o rt
(1 ) Q B u y e r 0 Seller shall pay for a natural hazard zone disclosure report, including tax [x] environmental 0 Other: _ _ _ _ _ _ _prepared by Seller's Choice___________________________________________________________________ .
(2) [_j Buyer [xj Seller shall pay for the following Report C ity o f N ew p o rt B each R e p o rt_________________________________________prepared b ^C ftv o f N e w p o rt B each
(3) [ j Buyer (x) Seller shall pay for the following Report W oo d D e stroyin g P e s t & F u n g u s Repo, prepared by A ccurate Term ite
Buyer’s Initials ( ) { 11 Seller's Initials (
R P A -C A R EV IS EB 4 4f14 (P A B E -2-O F 10)C A LIFO R N IA R E S ID E N TIA L PU R C H A S E A G R E E M E N T (R P A -C A P A G E 2 O F 10)
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DocuSign Envelope ID; EABD7E15-803CM982-9077-45ABA059D929
B. G O V E R N M E N T R E Q U IR E M E N T S A N D R E T R O F IT :(1) 0 Buyer jxj Seller shall pay for smoke alarm and carbon monoxide device installation and water heater bracing, if required by
Law. Prior to Close O f Escrow {“C O E"), Seller shall provide Buyer written statements) of compliance in accordance with state and local Law, unless Seller is exem pt
(2) (i) D Buyer (xj Seller shall pay the cost of compliance with any other minimum mandatory government inspections and reports if required as a condition of closing escrow under any Law.(ii) [ J Buyer [x| Seller shall pay the cost of compliance with any other minimum mandatory government retrofit standards required as a condition of dosing escrow under any Law, whether the work Is required to be completed before or after C O E .(iii) Buyer shall be provided, within the time specified in paragraph 14A, a copy of any required government conducted or point-of-sale inspection report prepared pursuant to this Agreement or in anticipation of this sale of the Property.
C . E S C R O W A N D T IT L E :(1) (a ) [x }8 uyer(xj Seller shall pay escrow fee Ea ch Sid e to P a y Its O w n Fees a n d C o s ts_____________________________________.
(b) Escrow Holder shall be B lu e W ater E s c ro w - Ja s o n Milter_____________________________________________________________ .(c ) Th e Parties shall, within 5 (o r — ) D ays After receipt, sign and return Escrow Holder's general provisions.
(2) ( a ) 0 8 uyer[js] Seller shall pay for o w ner's title insurance policy specified in paragraph 1 3 E ________________________________ .(b ) Owner's title policy to be issued bv C h icago Tide - Peter N o u rse
Property Address: 618 Via L id o N ord. Newport Beach. C A 92663________________________ Date: Se p te m b e r 2 3 ,20 15
(Buyer shall pay for any title insurance policy insuring Buyer's lender, unless otherwise agreed in writing.) D . O T H E R C O S T S :
m(2)(3)
BuyerBuyerBuyer
X Seller shall pay County transfer tax or fee X X
Seller shall pay City transfer tax or fe e . i f any.Seller shall pay Homeowners* Assodation (“H O A ") transfer fee
(4 ) Seiler shall pay H O A fees for preparing documents required to be delivered by Civil Code §4525.(5 ) 0 Buyer (xj Seller shall pay H O A fees for preparing all documents other than those required by Civil Code §4525.(6 ) Buyer to pay(7) Buyer f_ J
W Buyer jx 5(9) X Buyer j” S
(10) Buyer [x|.Seller shall pay for A H B u y e r Due DiligenceSeller shall pay for the cost, not to exceed S 2,000,00 . of a standard (or (xj upgraded)
one-year home warranty plan, Issued by F irst Am erican H om e B u ye rs Protectio n_____________________________, with thefollowing optional coverages: (xi Air Conditioner IxtPool/Soa Ixi O ther Roof. P ro f A p p lia n ce s. A d d 'l A p p lia n c e s _________ .Buyer Is informed that home warranty plans have many optional coverages in addition to those listed above. Buyer is advised to investigate these coverages to determine those that m ay be suitable for Buyer.
OR0 B u ye r w aives the purchase of a hom e w arranty plan. Nothing in th is paragraph precludes B u ye r's purchasing a hom e w arranty plan during the term of this Agreem enL
8. ITE M S IN C L U D E D IN A N D E X C L U D E D F R O M S A L E ;A . N O T E T O B U Y E R A N D S E L L E R : Items listed as induded or exduded in the M LS, flyers or marketing materials are not
induded in the purchase price or exduded from the sale unless spedfied in paragraph 8 B or C.B . ITE M S IN C L U D E D IN S A L E : Except as otherwise spedfied or disdosed,
(1 ) All E X IS TIN G fixtures and fittings that are attached to the Property;(2) E X IS TIN G electrical, mechanical, lighting, plumbing and heating fixtures, ceiling fens, fireplace inserts, gas logs and grates,
solar power systems, built-in appliances, window and door screens, awnings, shutters, window coverings, attached floor coverings, television antennas, satellite dishes, air coolers/conditioners, pool/spa equipment, garage door openers/remote controls, mailbox, In-ground landscaping, trees/shrubs, water features and fountains, water softeners, water purifiers, securitysystems/alarms and the following if checked: [xl all stove(s), except — ; ® all refrigeratcrfs)except — ....................- .............................. : [xjall w asher(s)anddryer(s), except ............................................................... ;
(3) The following additional items: A 1/ Furn ish in g , E lectronics & other Item s o f a non-personat/sentlm ental nature. .(4) Existing integrated phone and home automation systems, induding necessary components such as intranet and Internet-
connected hardware or devices, control units (other than non-dedicated mobile devices, electronics and computers) and applicable software, permissions, passwords, codes and access information, are ( Q are N O T ) included in the sale.
(5 ) L E A S E D O R LIEN E D ITE M S A N D S Y S T E M S : Seller shall, within the time spedfied in paragraph 14A, (i) disdose to Buyer if any item or system spedfied in paragraph 8B or otherwise induded in the sale is leased, o r not owned by Seller, or spedfically subject to a lien or other encumbrance, and (II) Deliver to Buyer all written materials (such as lease, warranty, etc.) concerning any such item. Buyer's ability to assume any such lease, o r willingness to accept the Property subject to any such lien or encumbrance, is a contingency in favor of Buyer and Seller as specified in paragraph 14B and C .
(6 ) Seller represents that all items induded in the purchase price, unless otherwise spedfied, (I) are owned by Seller and shallbe transferred free and dear of liens and encumbrances, except the items and systems identified pursuant to 8B {5) a n d --------.................... , and (ii) are transferred without Seller warranty regardless of value.
C . ITE M S E X C L U D E D FR O M S A L E : Unless otherwise specified, the following items are exduded from sale: (I) audio and video components (such as flat screen TV s , speakers and other items) if any such item is not itself attached to the Property, even if a bracket or other mechanism attached to foe component or item is attached to the Property; (ii) furniture and other items secured to foe Property for earthquake purposes; and (iti) E x clu d e d Fu rn ish in gs In ve n to ry L i s t to be p ro v id e d to b u y e r w ith in 5 d a ys o f A ccepta nce o f Offer._________________________________________________________________
____________________________ . Brackets attached to walls, floors o r ceilings for d n y s iic h com ponent, furnituremain WftOTfffe Property (or 0 will be removed and holes or other dam a g d ^ a K b e n e paired, but not painted).
) Seller's Initials f ) ( ___________)
o r Item
Buyer’s Initials <
R P A -C A REVt: 14 {P A S 6 -3 -O F 10)C A LIFO R N IA R E S ID E N TIA L P U R C H A S E A G R E E M E N T (R P A -C A P A G E 3 O F 10)
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Property Address: 618 Via U d o Word. N e w p o rt Beach. C A 92663____________________________________ Date: S e p te m b e r 2 3 ,2 0 1 59. CLOSING A N D P OSSESSIO N :
A. Buyer intends (or Q does not Intend) to occupy the Property as Buyer's primary residence.B. Seller-occupied o r vacant property: Possession shall be delivered to Buyer (I) at 6 PM or ( Q AM/ Q PM) on the date
o( Close Of Escrow; (ri) 0 no later than calendar days after Close Of Escrow; or (tit) 0 at 12 f lA M / lx jF M on 12/01/2015 .C. Seller remaining In possession After Close Of Escrow: If Seller has the tight to remain in possession after Close Of Escrow.
(1) the Parties are advised to sign a separate occupancy agreement such as Q C A R . Form SIP. for Seller continued occupancy of Eess than 30 days. Q C A R . Form RLAS for Seller continued occupancy of 30 days or more; and (II) Ihe Parties are advised to consult with their insurance and legal advisors for information about liability and damage or injury to persons and personal and real property; and (ifi) Buyer is advised to consult with Buyer's lender about the impact of Seller's occupancy on Buyer's loan.
D. Tenant-occupied property: Property shall be vacant at least S (or ____) Days Prior to Close O f Escrow, unless otherwiseagreed in writing. Note to Seller: If you are unable to deliver Property vacant in accordance with rent control and other applicable Law, you m ay be In breach of this Agreem ent
O R ( j Tenant to remain In possession (C A R . Form TIP).E. At Close Of Escrow: Seller assigns to Buyer any assignable warranty rights for items included In the sale; and Seller shall Deliver
to Buyer avaBable Copies of any such warranties. Brokers cannot and will not determine the assignability of Bny warranties.F. At Close Of Escrow, unless otherwise agreed in writing. Seller shall provide keys, passwords, codes andt/or means to operate all
locks, mailboxes, security systems, alarms, home automation systems and intranet and Internet-connected devices included in the purchase price, and garage door openers. If the Property is a condominium or located in a common interest subdivision, Buyer may be required to pay a deposit to the Homeowners’ Association fH O A ") to obtain keys to accessible H O A facilities.
10. S TA TU TO R Y A N D O TH E R D IS C LO S U R ES (IN CLUD IN G LEA D -B A S ED P AIN T H A Z A R D D IS C LO S U R ES ) A N D C A N C E L L A TIO NRIGHTS:A. (1) Seller shall, within the time specified in paragraph 14A. Deliver to Buyer (i> if required by Law, a fully completed; Federal
Lead-Based Paint Disclosures (C A R . Form FLD) and pamphlet ("Lead Disclosures"); and (It) unless exempt, fully completed disclosures or notices required by sections 1102 et seq. and 1103 et. seq. of the Civil Code ^Statutory Disclosures"). Statutory Disclosures include, but are not limited to, a Real Estate Transfer Disclosure Statement ("TDS"), Natural Hazard Disclosure Statement (*NHD*>, notice or actual knowledge of release of illegal controDed substance, notice of special tax and/or assessments (or. If allowed, substantially equivalent notice regarding the Mello-Roos Community Facilities Act of 1082 and Improvement Bond Act of 1915) and. If Seller has actual knowledge, of industrial use and military ordnance location (C A R . Form SPQ or SSD).
(2) Any Statutory Disclosure required by this paragraph is considered fully completed if Seller has answered all questions and completed and signed the Seller section(s) and the Listing Agent, if any, has completed and signed the Listing Broker secticnfs), or, if applicable, an Agent Visual Inspection Disclosure (C A R . Form AVID). Nothing stated herein relieves a Buyer's Broker, if any, from the obligation to (i) conduct a reasonably competent and diligent visual inspection of the accessible areas of the Property and disclose, on Section IV of the TD S, or an AVID, material facts affecting the value or desirability of the Property that were or should have been revealed by such an inspection or (il) complete any sections on all disclosures required to be completed by Buyer's Broker.
(3) Note to Buyer and Setter: Waiver of Statutory and Lead Disclosures Is prohibited by Law.(4) Within the time specified in paragraph 14A (i) Seller, unless exempt from the obligation to provide a TD S , shall, complete
and provide Buyer with a Seller Property Questionnaire (C A R . Form SPQ); (it) if Seller is not required to provide a TDS,Seiler shall complete and provide Buyer with a Supplemental Contractual and Statutory Disclosure ( C A R . Form S S D )
(5) Buyer shall, within the time specified in paragraph 14B(1), return Signed Copies of the Statutory, Lead and other disclosures to Seiler,(6) in the event Seller or Listing Broker, prior to Close Of Escrow, becomes aware of adverse conditions materially affecting the
Property, or any material inaccuracy in disclosures, information or representations previously provided to Buyer, Seller shall promptly provide a subsequent or amended disclosure or notice, in writing, covering those items. However, a subsequent or amended disclosure shall not be required for conditions and material Inaccuracies of which Buyer is otherwise aware, or which are disclosed in reports provided to o r obtained by B uyer or ordered and paid for by Buyer.
(7) If any disclosure or notice specified in paragraph 1QA(1), or subsequent or amended disclosure or notice Is Delivered to Buyer after the offer is Signed. Buyer shall have the right to cancel tills Agreement within 3 Days After Delivery in person, or 5 Days After Delivery by deposit In the mail, by giving written notice of cancellation to Seller or Seiler's agent.
B. N A TU R A L AND E N V IR O N M EN TA L H AZA R D DISCLOSUR ES A N D O TH E R B O O K L E T S : Within the time specified In paragraph 14A, Seller shall, if required by Law; (I) Deliver to Buyer earthquake guide(s) (and questionnaire), environmental hazards booklet, and home energy rating pamphlet; (II) disclose if tire Property is located in a Special Flood Hazard Area; Potential Flooding (Inundation) Area; Very High Fire Hazard Zone; Stale Fire Responsibility Area; Earthquake Fault Zone; and Seismic Hazard Zone; and (fit) disclose any other zone as required by Law and provide any other information required for those zones.
C. W ITHHOLDING TA X ES : Within the time specified in paragraph 14A, to avoid required withholding, Seller shall Deliver to Buyer or qualified substitute, an affidavit sufficient to comply with federal (FIRPTA) and California withholding Law ( C A R . Form AS o rQ S).
D. M EGAN'S LA W D A TA B A S E DISC LO SU R E: Notice: Pursuant to Section 2S0.46 of the Penal Code, information about specifiedregistered sex offenders is made available to the public via an Internet W eb site maintained by the Department of Justice atwww.meganslaw.ca.gov. Depending on an offender’s criminal history, this Information will include either the address at which the offender resides or the community of residence and ZIP Code in which he or she resides. (Neither Seiler nor Brokers are required to check this website. If Buyer wants further information, Broker recommends that Buyer obtain information from this website during Buyer's inspection contingency period. Brokers do not have expertise in this area.)
E. N O TIC E R EG AR D IN G G A S A N D H A Z A R D O U S LIQUID TRAN SM ISSION P IP ELIN ES: This notice Is being providedsimply to inform you that Information about the general location of gas and hazardous liquid transmission pipelines is available to the public via the National Pipeline Mapping System (NPM S) Internet W eb site maintained by the UnitedStates Department of Transportation at http://www.npms.phmsa.dotgov/. T o seek further tafomriation about possible transmission pipelines near the Property, you may contact your local gas utility or other pipeline/operators in the area. Contact informgtion for pipeline operators is searchable by ZIP Code and county on the NPM S Internet jWebj
Buyer’s Initials ( j M JL j f j ( J j ) Seiler's initialsR P A -C A R EV iS E D i1l14~(PA G E 4 O F 10)
C A LIFO R N IA R E S ID E N TIA L P U R C H A S E A G R E E M E N T (R P A -C A P A G E 4 O F 10)Produced with jdpFam© by jipLogix 16070 Fifteen Mid Road. Fraser, Michigen 48026 www riot oolxcom 618 VI* Udo Word
DocuSign Envelope ID: EABD7E15-S030-4982-S077-45ABA059D929
Property Address: 618 Via L id o N ord, N ew p o rt B each . C A 92663____________________________________ Date: S e p te m b e r 23. 2015F. CONDOMINIUM /PLANNED D E V E LO P M E N T D ISC LOSU R ES:
(1) S E L L E R H AS: 7 {or 5 ) Days After Acceptance to disclose to Buyer if the Property is a condominium, or is located in a planned development or other common interest subdivision {C A R . Form SPQ or SSD ).(2) If the Property is a condominium or is located in a planned development or other common interest subdivision, Seller has3 { o r ) Days After Acceptance to request from the H OA {C A R . Form HOA1): (i) Copies of any documents required by Law;(il) disclosure of any pending or anticipated claim or litigation by or against the H O A ; (ill) a statement containing the location and number of designated parking and storage spaces; (iv) Copies of the most recent 12 months of H O A minutes for regular and special meetings; and (v ) the names and contact information of all HOAs governing the Property (collectively. "Cl Disclosures'). Seller shall itemize and Deliver to Buyer all C i Disclosures received from the H O A and any Cl Disdosures in Seller's possession. Buyer's approval of Cl Disdosures is a contingency of this Agreement as specified in paragraph 14B(3). The Party spedfied in paragraph 7, as directed by escrow, shail deposit funds into escrow or direct to H O A or management company to pay for any of the above.
11. CO NDITION O F P R O P ER TY: Unless otherwise agreed in writing: (i) the Property is sold (a) "AS-IS* in its P R ESEN T physical condition as of the date of Acceptance and (b) subject to Buyer's Investigation rights; (fi) the Property, induding pool, spa, landscaping and grounds, is to be maintained in substantially the same condition as on the date of Acceptance; and (ill) all debris and personal property not induded in the sale shall be removed by Close Of Escrow.A. Seller shall, within the time spedfied in paragraph 14A. D ISCLOSE KN O W N M A TER IA L F A C T S A N D D E F E C TS affecting the
Property, Inctuding known insurance claims within the past five years, and make any and all other disdosures required by law.B. Buyer has the right to conduct Buyer Investigations of the Property and, as specified in paragraph 14B, based upon information
discovered in those Investigations: (i) cancel this Agreement; or (il) request that Seiler make Repairs or take other action.C. Buyer is strongly advised to conduct investigations of the entire Property in order to determine its present condition.
Seiler may not be aware of ail defects affecting the Property o r other factors that Buyer considers important. Property improvements m ay not be built according to code, in compliance with current Law , or have had permits issued.
12. BUYER'S IN VESTIG ATIO N O F P R O P ER TY A N D M A TTE R S A FFE C TIN G P R O P ER TY :A. Buyer's acceptance of the condition of, and any other matter affecting the Property, is a contingency of this Agreement as specified in
this paragraph and paragraph 14B. Within the time spedfied in paragraph 148(1), Buyer shall have the right at Buyer's expense unless otherwise agreed, to conduct inspections, investigations, tests, surveys and other studies {'Buyer Investigations"), induding, but not limited to. the right to: (I) inspect for lead-based paint and other lead-based paint hazards; {II) inspect for wood destroying pests and organisms. Any Inspection for wood destroying pests and organisms shall be prepared by a registered Structural Pest Control company, shall cover the main building and attached structures; may cover detached structures; shall N O T indude water tests of shower pans on upper level units unless the owners of property below the shower consent; shall N O T indude roof coverings; and, if the Property is a unit in a condominium or other common interest subdivision, the inspection shall Indude only the separate interest and any exduslve- use areas being transferred, and shall N O T Include common areas; and shall indude a report ("Pest Control Report") showing the findings of the company which shall be separated into sections for evident infestation or infections (Section 1) and for conditions likely to lead to infestation or infection (Section 2); (ili) review the registered sex offender database; (iv) confirm the insurability of Buyer and the Property induding the availability and cost of flood and fire insurance; (v) review and seek approval of leases that may need to be assumed by Buyer; and (v j) satisfy Buyer as to any matter spedfied in the attached Buyer's Inspection Advisory (C .A.R . Form BIA), Without Seller's prior written consent, Buyer shall neither make nor cause to be made: (I) invasive or destructive Buyer investigations except for minimally invasive testing required to prepare a Pest Control Report; or (II) inspections by any governmental building or zoning inspector or government employee, unless required by Law.
B. Seller shall make the Property available for all Buyer Investigations. Buyer shall (I) as spedfied in paragraph 14B, complete Buyer Investigations and either remove the contingency or cancel this Agreement, and (tl) give Seller, at no cost, complete Copies of all such investigation reports obtained by Buyer, which obligation shall survive the termination of this Agreement.
C. Seller shall have water, gas, eledridty and aU operable pilot lights on for Buyer's Investigations and through the date possession is made available to Buyer.
D. Buyer indemnity and seller protection for entry upon property: Buyer shall: (I) keep the Property free and dear of Hens; (il) repair all damage arising from Buyer Investigations; and (lii) indemnity and hold Seller harmless from all resulting liability, dalms, demands, damages and costs. Buyer shall carry, or Buyer shat) require anyone acting on Buyer's behalf to cany, policies of liability, workers' compensation and other applicable insurance, defending and protecting Seller horn liability for any injuries to persons or property occurring during any Buyer investigations or work done on the Property at Buyer's direction prior to Close O f Escrow. Seller is advised that certain protections may be afforded Seller by recording a "Notice of Non-Responsibility’ ( C A R . Form NNR) for Buyer Investigations and work done on the Property at Buyer's direction. Buyer's obligations under this paragraph shall survive the termination of this Agreement.
13. T ITL E A N D V E S TIN G :A . Within the time spedfied In paragraph 14, Buyer shall be provided a current preliminary title report ("Preliminary Report"). The Preliminary
Report is only an offer by the title insurer to issue a policy of title insurance and may not contain every item affecting title. Buyer's review of the Preliminary Report and arty other matters which may affect title are a contingency of this Agreement as specified in paragraph 14B. The company providing the Preliminary Report shall, prior to issuing a Preliminary Report, conduct a search of the General Index for all Sellers except banks or other institutional lenders selling properties they acquired through foredosure (REOs), corporations, and government entities. Seder shall within 7 Days After Acceptance, give Escrow Holder a completed Statement of Information.
B. Title is taken in its present condition subjed to all encumbrances, easements, covenants, conditions, restrictions, rights and other matters, whether of record or not, as of the date of Acceptance except ton (!) monetary liens of record (which Seller is obligated to pay off) unless Buyer is assuming those obligations or taking the Property subject to those obligations; and (Ii> those matters which Seller has agreed to remove in writing.
C. Wthin the time spedfied in paragraph 14A, Seiler has a duty to dtsdose to Buyer all matters known to Seller affecting title, whether of record or rot.
D. At Close Of Escrow, Buyer shall receive a grant deed conveying title (or, for stock cooperative or long-term tease, an assignment of stock certificate or of Seller's leasehold interest), Induding oti. mineral and water rights if currently owned by Seller. Tttie shall vest as designated in Buyer's supplemental escrow instructions. T H E M ANN ER O F TA K lN jH 'Tn TV t M AY H AVE SIGNIFICANTLEGAL A N C TW X C O N S E Q U E N C E S . C O N S U L T AN APPROPRIATE P R O F E S S IO N A L /
Buyer's Initials ( I M w l IJL ) Seller's Initials ( A JlfSl ) ( ___________)R P A -C A R EV ISH L11/14 (P A G E 5 O F 10)
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DocuSign Envelope )D: EABD7E1S-8030-4982-9077-45ABAG59D929
DocuSign Envelope ID; EABD7E15-8030-4982-9077-45A8A059D929
Property Address: 618 Via L id o Nord,. N e w p o rt B each. C A 92663___________________________________ Date: S eptem b er 23. 2015_______E. Buyer shall receive a C LTA /A ITA "Homeowner’s Policy of Title Insurance’ , if applicable to the type of property and buyer. If not.
Escrow Holder shai! notify Buyer. A title company can provide information about the availability, coverage, and cosl of other title policies and endorsements. If the Homeowner’s Policy is not available. Buyer shall choose another policy, instruct Escrow Holder in writing and shall pay any increase in cost
14. TIM E PERIODS; R EM O V A L O F C O N TIN G EN C IE S ; C A N C E LLA TIO N R IG H TS : Th e following time periods m ay only beextended, altered, modified o r changed by mutual written agreem ent Any removal of contingencies o r cancellation underthis paragraph by either B uyer o r Seller m ust be exercised In good faith and in writing (C .A .R . Form C R or C C ).A . S E LLER H A S : 7 (or 5 ) Days After Acceptance to Deliver to Buyer all Reports, disclosures and information for which Seller
is responsible under paragraphs 5, 6 , 7, 88(4), 10A, B, C. and F, 11A and 13A. If, by the time specified, Seller has not Delivered any such item. Buyer after first Delivering to Seller a Notice to Seller to Perform (C A R . Form N SP ) may cancel this Agreement
B. (1) B U Y E R H AS: 17 (or 10 ) Days After Acceptance, unless otherwise agreed in writing, to:(i) complete ail Buyer Investigations; review all disclosures, reports, lease documents to be assumed by Buyer pursuant to paragraph 8B(5), and other applicable information, which Buyer receives from Seller and approve ail matters affecting the Property; and (ii) Deliver to Seiler Signed Copies of Statutory and Lead Disclosures and other disclosures Delivered by Seller in accordance with paragraph 10A.
(2) Within the time specified in paragraph 14B(1), Buyer may request that Seller make repairs or take any other action regardingthe Property ( C A R . Form RR). Seller has no obligation to agree to or respond to (C A R . Form RRRR ) Buyer's requests.
(3) By the end of the time spedfied in paragraph 14B(1) (or as otherwise spedfied in this Agreement), Buyer shall Deliver to Seller a removal of the applicable contingency or cancellation ( C A R . Form C R or C C ) of this Agreement However, if any report, disclosure or information for which Seller is responsible is not Delivered within the time spedfied in paragraph 14A,then Buyer has S (o r ____) Days After Delivery of any such items, or the time spedfied in paragraph 14B(1), whichever islater, to Deliver to Seller a removal of the applicable contingency or cancellation of this Agreement.
(4) Continuation of Contingency: Even after the end of the time specified in paragraph 14B(1) and before Seller cancels, if at all, pursuant to paragraph 14C, Buyer retains the right, in writing, to either (t) remove remaining contingertdes, or (ii) cancel this Agreement based on a remaining contingency. Once Buyer's written removal of ali contingencies is Delivered to Seiler, Setter may not cancel this Agreement pursuant to paragraph 14C(1).
C. S E LLER R IG H T T O C A N C E L :(1) Seller right to Cancel; Buyer Contingencies: If, by the time specified in this Agreement, Buyer does not Deliver to Seller a
removal of the applicable contingency or cancellation of this Agreement, then Seller, after first Delivering to Buyer a Notice toBuyer to Perform (C A R . Form N 8 P), may cancel this Agreement, tn such event. Seiler shall authorize the return of Buyer's deposit, except for fees incurred by Buyer.
(2) Seller right to C a n e d ; B uyer Contract Obligations: Seller, after first delivering to Buyer a NBP, may cancel this Agreement If, by the time spedfied in this Agreement, Buyer does not take the following action(s): (i) Deposit funds as required by paragraph 3A, or 3B or if the funds deposited pursuant to paragraph 3A or 3B are not good when deposited; (fi) Deliver a notice of FH A or V A costs or terms as required by paragraph 3D(3) (C A R . Form FVA); (110 Deliver a tetter as required by paragraph 3J(1); (Iv) Deliver verification, or a satisfactory verification if Seller reasonably disapproves of the verification already provided, as required by paragraph 3C or 3H; (v ) In writing assume or accept teases or liens specified in 8B5; (v i) Retum Statutory and Lead Disclosures as required by paragraph 1QA(5); or (vli) Sign or initial a separate liquidated damages form for an Increased deposit as required by paragraphs 3B and 21B; or (vlit) Provide evidence of authority to sign in a representative capacity as specified in paragraph 19. In such event, Seller shall authorize the return of Buyer’s deposit, except for fees incurred by Buyer.
D. N O TIC E T O B U Y ER O R S E L L E R T O P ERFORM : The NBP or NSP shall: (I) be in writing; (it) be signed by the applicable Buyer orSeller; and (ill) give the other Party at least 2 ( o r ) Days After Delivery (or until the time spedfied In the applicable paragraph,whichever occurs last) to take the applicable action. A NBP or NSP may not be Delivered any earlier than 2 Days Prior to the expiration of the applicable time for the other Party to remove a contingency or cancel this Agreement or meet an obligation spedfied in paragraph 14.
E. E F F E C T O F B U YER 'S R EM O V A L O F C O N TIN G EN C IES : If Buyer removes, In writing, any contingency or cancellation rights, unless otherwise spedfied in writing, Buyer shall condusively be deemed to have: (i) completed at! Buyer Investigations, and review of reports and other applicable Information and disclosures pertaining to that contingency or cancellation right; (If) elected to proceed with the transaction; and (Ilf) assumed ali liability, responsibility and expense for Repairs or corrections pertaining to that contingency or cancellation right, or for the inability to obtain finandng.
F. C LO S E O F E S C R O W : Before Buyer or Seller may cancel this Agreement for failure of the other Party to close escrow pursuant to this Agreement, Buyer or Seiler must first Deliver to the other Party a demand to dose escrow ( C A R . Form D C E). The DCEshall: (i) be signed by the applicable Buyer or Seller; and (ii) give the other Party at least 3 (or ______ ) Days After Delivery todose escrow. A D C E may not be Delivered any earlier than 3 Days Prior to the scheduled close of escrow.
G. E F F E C T O F C A N C E L L A TIO N O N D E P O S ITS : If Buyer or Seller gives written notice of cancellation pursuant to rights duly exercised under the terms of this Agreement, the Parties agree to Sign mutual Instructions to cancel foe sale and escrow and release deposits, if any, to foe party entitled to the funds, less fees and costs incurred by that party. Fees and costs may be payable to service providers and vendors for services and products provided during escrow. Except as spedfied below, release of funds will require mutual Signed release Instructions from the Parties, judicial decision or arbitration award. If either Party fails to execute mutual instructions to cancel escrow, one Party may make a written demand to Escrow Holder for the deposit. (C A R . Form BDRD or SD R D ). Escrow Holder, upon receipt, shall promptly deliver notice of the demand to the other Party. If, within 10 Days After Escrow Holder's notice, the other Party does not object to the demand, Escrow Holder shall disburse the deposit to the Party making the demand. If Escrow Holder complies with foe preceding process, each Party shall be deemed to have released Escrow Holder from any and alt claims or liability related to the disbursal of foe deposit. Escrow Holder, at its discretion, may nonetheless require mutual cancellation instructions. A Party may be subject to a civil penalty of up to $1,000 for refusal to sign cancellation Instructions if no good faith dispute exists as to who is entitled to the deposited funds (C ivil Code §1057,3).
15. FIN AL VER IFIC ATIO N O F C O N D ITIO N : Buyer shall have foe right to make a final verification of the PropettfVifoin 5 (o r 0 ____) DaysPrior to Close Of Escrow, N O T AS A CON TIN G EN C Y O F TH E SALE, but solely to confirm; (I) the Property is. maicnained pursuant to paragraph 11;(1!) Repairs hprc19§en completKtfiB agreed; and (Hi) Seller has complied with Seiler's other obligations unmdlfoia^repment (C A R . Form VP).
Buyer's Initials ( f a d H j ( A ) Seller's Initials C / J j M t ' ) ( ___________)R P A -C A R E V IS E D 11/14 (P A G E 6 O F 10) /V
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Property Address; 618 Via U d o N ord, N e w p o rt Beach. C A 92663____________________________________Date: S eptem ber 23, 201S16. REPAIRS: Repairs shall be completed prior to final verification of condition unless otherwise agreed in writing. Repairs to be performed at
Seller's expense may be performed by Seller or through others, provided that the work complies with applicable Law, including governmental permit, inspection and approval requirements. Repairs shall be performed in a good, skillful manner with materials of quality and appearance comparable to existing materials. It is understood that exact restoration of appearance or cosmetic items following a!) Repairs may not be possible. Seller shall; (i) obtain invoices and paid receipts for Repairs performed by others; (II) prepare a written statement indicating the Repairs performed by Seller and the date of such Repairs; and (ill) provide Copies of invoices and paid receipts and statements to Buyer prior to final verification of condition.
17. PRORATIONS O F P R O P ER TY TA X E S A N D O TH E R ITEM S: Unless otheiwise agreed in writing, the following items shall be PAID CU R R EN T and prorated between Buyer and Seller as of Close O f Escrow: real property taxes and assessments, interest, rents, H O A regular, spedal, and emergency dues and assessments imposed prior to Close Of Escrow, premiums on insurance assumed by Buyer, payments on bonds and assessments assumed by Buyer, and payments on Mello-Roos and other Special Assessment District bonds and assessments that are now a lien, th e following items shall be assumed by Buyer W ITH O U T C R ED IT toward the purchase price; prorated payments on Mello-Roos and other Special Assessment District bonds and assessments and H OA spedal assessments that are now a lien but not yet due. Property will be reassessed upon change of ownership. Any supplemental tax bills shall be paid as follows: (1) far periods after Close Of Escrow, by Buyer; and (ii) for periods prior to Close O f Escrow, by Seller (see C A .R . Form SP T or SBSA for further information). TA X BILLS ISSUED A F TE R CLOSE O F E S C R O W SHALL BE H AN DLED D IR EC TLY B ETW EEN BUYER AND SELLER. Prorations shall be m 3de based on a 30-day month.
18. B RO KER S:A. C O M PEN SATIO N : Seller or Buyer, or both, as applicable, agree to pay compensation to Broker as specified In a separate written
agreement between Broker and that Seller or Buyer. Compensation is payable upon Close O f Escrow, or if escrow does not dose, as otherwise spedfied In the agreement between Broker and that Seller or Buyer.
B. S C O P E O F D U TY : Buyer and Seller acknowledge and agree that Broken (I) Does not decide what price Buyer should pay or Seller should accept; (II) Does not guarantee the condition of the Property; (III) Does not guarantee the performance, adequacy or completeness of Inspections, services, products or repairs provided or made by Seller or others; (Iv ) Does not have an obligation to conduct an inspection of common areas or areas off die site of the Property; (v ) Shall not be responsible for identifying defects on the Property, in common areas, or offsite unless such defects are visually observable by an inspection of reasonably accessible areas of the Property or are known to Broken (vl> Shall nol be responsible for inspecting public records or permits concerning the title or use of Property; (vii) Shall not be responsible for identifying the location of boundary lines or other items affecting title; (vili) Shall not be responsible for verifying square footage, representations of others or information contained in Investigation reports. Multiple Listing Service, advertisements, flyers or other promotional material; (Ix) Shall not be responsible for determining the fair market value of the Property or any personal property included in the sale; (x) Shall not be responsible for providing legal or tax advice regarding any aspect of a transaction entered into by Buyer or Seller and (xi) Shall not be responsible for providing other advice or Information that exceeds the knowledge, education and experience required to perform real estate licensed activity. Buyer and Seller agree to seek legal, tax, Insurance, title and other desired assistance from appropriate professionals.
19. R EP R ES E N TA TIV E C A P A C ITY : If one or more Parties Is signing this Agreement In a representative capacity and not for him/herself as an individual then that Party shall so Indicate in paragraph 31 or 32 and attach a Representative Capacity Signature Disclosure (C A R . Form R CSD ). VWterever the signature or Initials of the representative identified in the R C S D appear on this Agreement or any related documents, it shall be deemed to be in a representative capacity for the entity described and not In an Individual capacity, unless otherwise indicated. The Party acting in a representative capacity (0 represents that the entity for which that party is acting already exists and (ii) shall Deliver to the other Party and Escrow Holder, within 3 Days After Acceptance, evidence of authority to act in that capacity (such as but not limited to: applicable portion of the trust or Certification O f Trust (Probate Code §18100.5), letters testamentary, court order, power of attorney, corporate resolution, or formation documents of the business entity).
20. JO IN T E S C R O W IN S TR U C TIO N S T O E S C R O W H OLD ER :A Th e following paragraphs, or applicable portions thereof, of this Agreement constitute the Joint escrow instructions
of Buyer and Setter to Escrow Holder, which Escrow Holder is to use along with any related counter offers and addenda, and any additional mutual Instructions to dose the escrow: paragraphs 1, 3, 4B, 5A. 6 . 7. 1QC, 13, 14G, 17. 18A, 19, 20. 26, 29, 30, 31. 32 and paragraph D of the section tilted Real Estate Brokers on page 10. If a Copy of the separate compensation agreement(s) provided for in paragraph 18A, or paragraph D of the section titled Real Estate Brokers on page 10 is deposited with Escrow Holder by Broker. Escrow Holder shall accept such agreements) and pay out from Buyer's or Seiler's funds, or both, as applicable, the Broker's compensation provided for in such agreements). The terms and conditions of this Agreement nol set forth in the spedfied paragraphs are additional matters for the information of Escrow Holder, but about which Escrow Holder need not be concerned. Buyer and Seller will receive Escrow Holder's general provisions, if any, directly from Escrow Holder and will execute such provisions within the time spedfied in paragraph 7C(1)(c). To the extent die general provisions are inconsistent or conflict with this Agreement, the general provisions will control as to the duties and obligations of Escrow Holder only. Buyer and Seller wfll execute additional Instructions, documents and forms provided by Escrow Holder that are reasonably necessary to dose the escrow and, as directed by Escrow Holder, within 3 (or — ) Days, shall pay to Escrow Holder or H O A or H O A management company or others any fee required by paragraphs 7 ,10 or elsewhere in this Agreement
B. A Copy of this Agreement including any counter offers) and addenda shall be delivered to Escrow Holder within 3 Days AfterAcceptance (or — ................. — ). Buyer and Seller authorize EscrowHolder to accept and rety on Copies and Signatures as defined in this Agreement as originals, to open escrow and for other purposes of escrow. The validity of this Agreement as between Buyer and Seiler is not affected by whether or when Escrow Holder Signs this AgreemenL Escrow Holder shall provide Seiler's Statement of Information to Title company when received from Seller. If Seller delivers an affidavit to Escrow Holder to satisfy Seller's F IR P TA obligation under paragraph 10C, Escrow Holder shall deliver to Buyer a Qualified Substitute statement that complies with federal Law.
C . Brokers are a party to the escrow for the sole purpose of compensation pursuant to paragraph 18A and paragraph D of the section titled Real Estate Brokers on page 10. Buyer and Seller irrevocably assign to Brokers compensation spedfied In paragraph 18A, and Irrevocably instruct Escrow Holder to disburse those funds to Brokers at Close QWEscrow or pursuant to any other mutually executed cancellation agreement. Compensation instructions can be amended or/evoked only with the written consent of brokers. Buyer jand Seller shall release and held harmless Escrow Holder fro n fh n / liability resulting from Escrow
DocuSign Envelope ID: EABD7E15-8030-4982-9077-45ABA059D929
Holder's Buyer's Initials ( RPA-CA REVIS
of compensation pursuant to this Agreement) Seder's Initials [____) ( )
ED 11/14 (PAGE I? O F 10)C A L IF O R N IA R E S ID E N T IA L P U R C H A S E A G R E E M E N T (R P A -C A P A G E 7 O F 10)
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Property Address: 618 Via Lido Nord. Newport Beach, CA 92663____________________________________Date: September 23,2015D. Upon receipt, Escrow Holder shall provide Seiler and Seller's Broker verification of Buyer's deposit of funds pursuant to
paragraph 3A and 3B. Once Escrow Holder becomes aware of any of the following, Escrow Holder shall immediately notify ailBrokers: (I) if Buyer's initial or any additional deposit or down payment is not made pursuant to this Agreement, or is not good at time of deposit with Escrow Holden or (It) if Buyer and Seller Instruct Escrow Holder to cancel escrow.
E. A Copy of any amendment that affects any paragraph of this Agreement for which Escrow Holder is responsible shaH bedelivered to Escrow Holder within 3 Days after mutual execution of the amendment.
21. REMEDIES FOR BUYER’S BR EACH O F CO N TR A C T:A. Any clause added by the Parties specifying a remedy (such as release or forfeiture of deposit or making a deposit
non-refundable) for failure of Buyer to complete the purchase in violation of this Agreement shall be deemed invalid unless the clause independently satisfies the statutory liquidated damages requirements set forth in the Civil Code.
B. LIQUIDATED DAM AGES: If Buyer falls to complete this purchase because of Buyer's default, Seller shall retain, as liquidated damages, the deposit actually paid. If the Property is a dwelling with no more than four units, one of which Buyer Intends to occupy, then the amount retained shall be no more than 3% of the purchase price. Any excess shall be returned to Buyer. Except as provided in paragraph 14G, release of funds will require mutual, Signed release instructions from both Buyer and Seller, Judicial decision or arbitration awarthsAT TH E TIME OF ANY INCREASED DEPOSIT BUYER AN D SELLER SHALL SIGN A S EP A R A TE LIQUIDATES) DAM AGES PROVISION INCORPORATING TH E INCREASED DEPOSIT AS LIQUIDATED D AM AGES (C.A.R.
Buyer's Initials / I A Seller’s Initialst/ L / f t /_________
22. D ISPUTE R ESO LU TIO N : ^ ----------A . M EDIATION: The Parties agree to mediate any dispute or daim arising between them out of this Agreement, or any resulting
transaction, before resorting to arbitration or court action through the C A R . Real Estate Mediation Center for Consumers (www.consumermediation.org) or through any other mediation provider or service mutually agreed to by the Parties. The Parties also agree to mediate any disputes or claims with Broker(s), w ho, In writing, agree to such mediation prior to, or within a reasonable time after, the dispute or claim is presented to the Broker. Mediation fees, if any, shall be divided equally among the Parties involved. If, for any dispute or daim to which this paragraph applies, any Party (i) commences an action without first attempting to resolve the matter through mediation, or (il) before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even cf they would otherwise be available to that Party in any such action. THIS MEDIATION PROVISION APPLIES W H ETH E R O R N O T T H E ARBITRATION PROVISION IS INITIALED. Exclusions from this mediation agreement are specified in paragraph 22C.
B. ARBITRATION O F DISPUTES:The Parties agree that any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration. The Parties also agree to arbitrate any disputes or claims with Broker(s), who, in writing, agree to such arbitration prior to, or within a reasonable time after, the dispute or claim is presented to the Broker. The arbitrator shall be a retired Judge or justice, or an attorney with at least 5 years of residential real estate Law experience, unless the parties mutually agree to a different arbitrator. The Parties shall have the right to discovery in accordance with Code of Civil Procedure §1283.05. In all other respects, the arbitration shall be conducted in accordance with Title 9 of Part 3 of the Code of Civil Procedure. Judgment upon the award of the arbitrators) may be entered into any court having jurisdiction. Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration A c t Exclusions from this arbitration agreement are specified in paragraph 22C.
“N OTICE: BY INITIALING IN TH E SPACE BELOW YOU A R E A G R EEING T O HAVE A N Y DISPUTE ARISING O U T OF TH E M A TTER S INCLUDED IN TH E ’ARBITRATION OF DISPUTES* PROVISION DECIDED BY N EU TR AL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AN D Y O U A R E GIVING UP ANY RIGHTS YOU MIGHT POSSESS T O HAVE TH E DISPUTE LITIG A TED IN A C O U R T OR JU R Y TRIAL. BY INITIALING IN TH E SP AC E BELOW YOU ARE GIVING UP YO U R JU D IC IA L RIGHTS T O DISCOVERY AND APPEAL, UNLESS TH O S E RIGHTS A R E SPECIFICALLY INCLUDED IN T H E ‘A RBITR ATIO N O F DISPUTES’ PROVISION. IF YOU R EFUSE T O SUBM IT TO ARBITRATION A F TE R A G R EEING T O THIS PROVISION, YOU MAY BE COM PELLED T O A R B ITR A TE UNDER TH E A U TH O R ITY O F T H E C A U FO R N IA C O D E O F CIVIL PROCEDURE. YOUR A G R EEM EN T T O THIS ARBITRATION PROVISION IS V O LU N TA R Y .”
“W E HAVE READ AND UNDERSTAND TH E FOREGOING AND A G R EE T O SUBM IT DISEU ARISING O U T OFTH E M A TTER S INCLUDED IN'THE?’A RBITRATION OF DISPUTES’ PROVISION T O NEUTF&fU IT RATION.’
DocuSign Envelope ID: EABD7E15-803<W982-9077-45ABA059D929
Buyer's Initials t IA Seller's Initial!
C. A D D ITIO N AL M EDIATION A N D aW w a t W h ER M S :(1) EXCLU SION S: The following matters are excluded from mediation and arbitration: (i) a Judicial or norvjudlcial foreclosure
or other action or proceeding to enforce a deed of trust, mortgage or installment land sale contract as defined In Civil Code §2985; (il) an unlawful detainer action; and (lit) any matter that Is within the jurisdiction of a probate, small claims or bankruptcy court.
(2) P RESERVATIO N O F A C TIO N S : Th e following shall not constitute a waiver nor violation of the mediation and arbitration provisions: (I) the filing of a court action to preserve a statute of limitations; (II) the filing of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, Injunction, or other provisional remedies; or (Hi) the filing of a mechanic’s lien.
(3) B R O K ER S: Brokers shall not be obligated nor compelled to mediate or arbitrate unless Iheyyagrey to do so in writing. Any BrokSrTyjSarticipaWinffi mediation or arbitration shall not be deemed a party to this A ^ t e n t a p I/
f H i I A \ Seller's Initials i ! x IW ? I ( ___________)Buyer's Initials (
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23. SELEC TIO N O F S E R V IC E PROVIDERS: Brokers do not guarantee the performance of any vendors, service or product providers f Providers'), whether referred by Broker or selected by Buyer, Seller or other person. Buyer and Seller may select A N Y Providers of their own choosing.
24. M ULTIPLE LISTING SERVIC E ("M L S "): Brokers are authorized to report to the MLS a pending sale and. upon Close Of Escrow, the sales price and other terms of this transaction shall be provided to the MLS to be published and disseminated to persons and entities authorized to use the information on terms approved by the MLS.
25. A TTO R N E Y FE E S : In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.
26. ASSIGN M ENT: Buyer shall not assign all or any part of Buyer's interest in this Agreement without first having obtained the separatewritten consent of Seller to a spedfied assignee. Such consent shall not be unreasonably withheld. Any total or partial assignmentshall not relieve Buyer of Buyer's (Alligations pursuant to this Agreement unless otherwise agreed in writing by Seller. (C A R . Form AOAA).
27. EQ U A L H OUSING O P P O R TU N ITY : The Property is sold In compliance with federal, state and local anti-discrimination Laws.28. TERM S A N D CO N D ITION S O F O FFE R :
This is an offer to purchase the Property on the above terms and conditions. The liquidated damages paragraph or the arbitration of disputes paragraph Is incorporated in this Agreement if initialed by all Parties or if incorporated by mutual agreement in a counter offer or addendum. If at (east one but not all Parties initial, a counter offer is required until agreement is reached. Seller has the right to continue to offer the Property for sate and to accept any other offer at any time prior to notification of Acceptance. The Parties have read and acknowledge receipt of a Copy of the offer and agree to the confirmation of agency relationships. If this offer is accepted and Buyer subsequently defaults. Buyer may be responsible for payment of Brokers' compensation. This Agreement and any supplement, addendum or modification, including any Copy, may be Signed in two or more counterparts, all of which shall constitute one and the same writing.
29. TIM E O F ES S EN C E ; EN TIR E C O N TR A C T; C H A N G E S : Time is of the essence. All understandings between the Partiesare incorporated in this Agreement Its terms are intended by the Parties as a final, complete and exclusive expressionof their Agreement with respect to Its subject matter, and may not be contradicted by evidence of any prior agreementor contemporaneous oral agreement. If any provision of this Agreement is held to be ineffective or invaBd, the remaining provisions will nevertheless be given full force and effect Except as otherwise specified, this Agreement shall be interpreted and disputes shall be resolved in accordance wth the Laws of the State of California. Neither this Agreement nor any provision in it may be extended, amended, modified, altered or changed, except In writing Signed by B uyer and Seller.
30. DEFINITIONS: As used In this Agreement:A. “Acceptance” means the time the offer cr final counter offer is accepted in writing by a Party and is delivered to and personally
received by the other Party or that Party’s authorized agent in accordance with the terms of this offer or a final counter offer,B. "Agreem ent1 means this document and any counter offers and any Incorporated addenda, collectively forming the binding
agreement between the Parties. Addenda are Incorporated only when Signed by all Parties.C. " C A R . Form” means the most current version of the specific form referenced or another comparable form agreed to by the parties.D. "Close O f Escrow ” , including "COE", means the date the grant deed, or other evidence of transfer of title, is recorded.E. “Copy" means copy by any means including photocopy, NCR. facsimile and electronic.F. “Days” means calendar days. However, after Acceptance, the last Day for performance of any act required by this Agreement
(including Close Of Escrow) shaD not include any Saturday, Sunday, or legal holiday and shall instead be the next Day.G. "Days After" means the specified number of calendar days after the occurrence of the event specified, not counting foe calendar
date on which the spedfied event occurs, and ending at 11:59 PM on foe final day.H. “Days Prior" means foe specified number of calendar days before the occurrence of the event specified, not counting foe
calendar date on which foe specified event is scheduled to occur.I. "Deliver", "Delivered" or “ Delivery", unless otherwise spedfied in writing, means and shall be effective upon: personal receipt by
Buyer or Seller or foe individual Real Estate Licensee for that principal as specified in the section titled Real Estate Brokers on page 10, regardless of foe method used (i.e., messenger, mail, email, fax. other).
J . “Electronic Copy” or "Electronic Signature” means, as applicable, an electronic copy or signature complying with California Law. Buyer and Seiler agree that electronic means will not be used by either Party to modify or alter foe content or integrity of this Agreement without the knowledge and consent of the other Party.
K. "Law” means any law, code, statute, ordinance, regulation, role or order, which is adopted by a controlling dty, county, state or federal legislative, judidal or executive body or agency.
L "Repairs” means any repairs (induding pest control), alterations, replacements, modifications or retrofitting of foe Property prodded for under this Agreement
M. “Signed” means either a handwritten or electronic signature on an original document, Copy or any counterpart31. EXPIRATION O F O F F E R : This offer shall be deemed revoked and the deposit, if any, shall be returned to Buyer unless the offer is Signed
by Seller and a Copy of foe Signed offer is personally received by Buyer, or by R ob Sm ith - Surterre Properties, Inc. ,who is authorized to receive it. by 5:00 PM on the third Day after this offer Is signed by Buyer (or by Ixl 8:00 R A M / [xjPM,on Septem ber23, 2015___________ (date)).
0 One or more Buyers is signing this Agreement in a representative capacity and not for him/herself as an individual. See attached Representative Capacity SignaturaDl^ o s ijffi^ Q A R . Form R CSD ) for additional terms.
Date 09/23/2015 B U YER M t c i u I t t ____________________________________________________________________________________
(Print name) Michael J . Avenatt >— >_____________
Date 09/23/2015 BUYER]
DocuSign Envelope ID: EABD7E15-8030-4982-9077-45ABA059D929
Property Address: 678 Via Ltd o N ord. N e w p o rt Beach. C A 92663___________________________________ Date: S e p te m b e r23. 2015
(Print name) U s a Storle-A venafflTVrfiBtfPffiStf^F&sfnoeeSs)
0 Additional Signature Addendum attached (C A R . Form ASA). / \ / JSetter's initials I i / U v f 9 \ H ___________)
R P A -C A R EV IS E D 11/14 (P A G E 9 O F 10)C A LIF O R N IA R E S ID E N TIA L P U R C H A S E A G R E E M E N T (R P A -C A P A G E 9 O F 10)
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Property Address: 618 Via U d o Word, N e w p o rt Beach, C A 92663_______________________ Date: S e p te m b e r 23. 2015
32. A C C E P TA N C E O F O F F E R : Seller warrants that Seller is the owner of the Property, or has the authority to execute this Agreement. Seller accepts the above offer, and agrees to sell the Property on the above terms and conditions. Seller has read and acknowledges receipt of a Copy of this Agreement, and authorizes Broker to Deliver a Signed Copy to Buyer.
58 (If chedted), SELLER 'S A C C E P TA N C E IS S U B JE C T TO A TTA C H E D C O U N TE R O F F E R (C .A .R . Form S C O or S M C O ) DATED: * \ f z Z f Z 0 lS -___________ .
Q One or more Sellers is signing this AcVeerrrent in a representative capacity and not for him/herself as an individual. See attached Representative Capacity S ignatujW H Jsd^Ore^C.AR . Form RCSD ) for additional terms.
Date 09/23/2015 S ELLER A ) fflj_____________________________________________ ________(Print name) G ary E. Prim m Fam ily T R U S T _________________________________________________________________________________ __
DocuSrgn Envelope ID: EABD7E15-8030-4982-9077-45ABA059D929
Date___________________ S E LLER .
(Prim name)_________________Q Additional Signature Addendum attached ( C A R . Form ASA).
( ______ /_______) (Do not Initial if making a counter offer.) CONFIR M ATION O F A C C E P T A N C E : A Copy of Signed Acceptance was(Initials) personally received by Buyer or Buyer's authorized agent on (date)___________________________ a t_________
Q AM/ [ j PM. A binding Agreement Is created when a C o py of Signed Acceptance Is personally received by Buyer or Buyer’s authorized agent whether or not confirmed In this d o cum en t Completion of this confirmation is not legally required In order to create a binding Agreement; it is solely intended to evidence the date that Confirmation of Acceptance has occurred.
R EA L E S TA TE B R O K ER S:A. Real Estate Brokers are not parties to the Agreement between Buyer and Seller.B. Agency relationships are confirmed as stated in paragraph 2.C . if specified in paragraph 3A(2), Agent who submitted the offer for Buyer acknowledges receipt of depositD. C O O P ER A TIN G B R O K ER C O M P E N S A TIO N : Listing Broker agrees to pay Cooperating Broker (Selling Firm ) and Cooperating
Broker agrees to accept, out of Listing Broker's proceeds In escrow, the amount specified in the M LS, provided Cooperating Broker is a Participant of the MLS in which the Property is offered for sale or a reciprocal M LS. If Listing Broker and Cooperating Broker are not both Participants of the MLS, or a reciprocal MLS, in which the Property is offered for sale, then compensation must be spedfied in a separate written agreement ( C A R . Form CBC). Dadaration of License and Tax ( C A R . Form D L T ) may be used to document that tax reporting will be required or that an exemption exists.
at S t e ^ t o ^ H S e l l i n g Firm! Surterrv Properties. Inc______________________________________________ CalBRE Lie. # 01778230R ob Smith CalBRE Lie. # 01113111 Date 09/23/2015
, f ____________________________________ CalBRE Lie. # ________________________DateAddress 1400 Newport Center Drive. Sto. 100 City Newport_Beach_________________State C A Zip 92660Telephone (949)697-8855 Fax (979)717-7408_______________ E-mail_rsm [email protected] ____________Real Estate Broker (Listing RprrtSTe/es Properties, tnc_________________________________________________ CalBRE Uc. # .B y________________________ V/n D o ug Skoro CalBRE Lie. # ________________________Date 09/23/2015By ft CalBRE Lie. # _______________________ D ate.Address 12 Corporate Plaza. Suite 250 City Newport_Beach_________________State C A Zip 92660Telephone (339)375-3445_______________ F a x _ _________________________ E-mail douoskoro& pm aiLcom
ESCR O W H O LD ER A C K N O W LE D G M E N T:Escrow Holder acknowledges receipt of a Copy of this Agreement, (if checked. Q a deposit in the amount of S ______________________ ).counter offer numbers___________________________________ QsetJer's Statement of information a n d __________________________________________________________________________________________________________ . and agrees to act as Escrow Holder subject to paragraph 20 of this Agreement, anysupplemental escrow instructions and the terms of Escrow Holder's general provisions.
Escrow Holder Is advised that the date of Confirmation of Acceptance of the Agreement as between Buyer and Seller Is,
Escrow Holder Blue Water Escrow - Jason M ilt e r ________________________________________Escrow # ________By _________________________________________________________________________________ Date_________________Address_______________________________________________________________________________________________________Phone/Fax/E-mailEscrow Holder has the foQowing license number # _______________PI Department of Business Oversight, [~~| Department of Insurance, f | Bureau of Real Estate.
PRESENTATION O F OFFER: ( ) Listinq Broker presented this offer to Seller on (date). 'Broker or Designee Initials
REJECTION OF OFFER: / ) f ) No counter offer is beinq made. This offer was rejected bv Setter on (date).Sea era Initials *
<01S91- 2014, California Association d REALTORS®, Inc. United Slates copyright law (Trtfe 17 U.S. Code) forbids the unauthorized distribution, display and reproduction of (Msform, or any portion thereof, by photocopy machine or any other means. Induding facsimile or computerized formats.THIS FORM HAS BEEN APPROVED BY THE CAUFORNIA ASSOCIATION OF REALTORS© (C A R .). NO REPRESENTATION IS MADE AS TO TH E LEGAL VAUDITY OR ACCURACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION, A REAL ESTATE BROKER tS THE PERSON QUAUFIEO TO ADVISE ON REAL ESTATETRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE. CONSULT AN APPROPRIATE PR OFESSlON AU-os , OS
I .
Published and Distributed by: Buyer's Adcnowtedga that page ^0 1:REAL ESTATE BUSINESS SERVICES. INC. this Anreement ( ta subsidiary oltho CALIFORNIA ASSOCIATION OF REALTORS®525 South Vcrgf Avenue. Los Angeles, California 80020 R P A -C A R E V IS E D 11/14 (P A G E 10 of 10)
C A U F O R N IA R E S ID E N TIA L P U R C H A S E A G R E E M E N T (R P A -C A P A G E 10 O F 10)Produced wChzfpForma tiyztpLogtx 18070 Fifteen Mile Road. Fraser. Michigan 48020 mw. rtotocix oom SIS VI* Udo Nani
C A L I F O R N I AA S S O C I A T I O N ADDENDUM
' 1 ^ O F R E A L T O R S ® (C JLR . Form ADM, Revised 4/12) No. Two____________ _
The following terms and conditions are hereby incorporated in and made a part of the: Q Residential Purchase Agreement, 0 Manufactured Home Purchase Agreement, Q Business Purchase Agreement, 0 Residential Lease or Monfo-to-Monfo Rental Agreement, 0 Vacant Land Purchase Agreement, 0 Residential Income Property Purchase Agreement, 0 Commercial Property Purchase Agreement, p o th e r Counter Offer one______________________________________________________________________________
dated September23.2015 , on property known a s __________________ 618 Via Lido Nord_____________________________________________________________ Newport Beach. CA 92663_____________________________________in which_____________________ Michael J . Avenatti. U sa Storie-Avenatti_______________________ is referred to as ("Buyer/Tenant")and_____________________________ Gary E. Primm Family Trust is referred to as fSelter/Landlord”).1. Sellers damages should buyer fall to close escrow in accordance with the terms and provisions of C.A.R. form RPA-CA would bo extremely difficult to calculate, especially due to the highly unique nature of the property and therefore sellor and buyer have negotiated at arms-tenoth and in good faith a liquidated damage am ount D E L E T E from paragraph 21.B, liquidated damage the following: "If the property Is a dwelling with no more than four units, one o f which buyer Intends to occupy, thendie amount retained shall be no more than 3% of the purchase price. A n y excess will be returned to buyer. Except as_________provided In paragraph 14 G, re/ease of funds will require mutual signed release Instructions from both buyer and seller.______judicial decision or arbitration award. A t the time of any increased deposit buyer and seller shall sign a separate liquidateddamages provision incorporating the increased deposit as liquidated damages ( C.A.R. form RID."____________________________ADD - The S200.000 deposit shall be released to seller from escrow b y the end of the time period Identified In paragraph 14 B(1} or as otherwise specified In the R PA -C A without any further instruction required b y buyer to escrow as a liquidated_______dam age. _ _ _ _________2. Buyer will submit to seller for sellers review and approvals within 3 days after acceptance sufficient documents to_________eWdence buyers ability to pay the purchase price In full as and when due. Seller shall have the right In sellers sole discretion, to canoe/ escrow without any further obligation or liability to buyer, if seller determines that buyer has not shown sufficient evidence of buyers ability to pay purchase price in full as and when due In such event all deposits will be returned to buyer.3. The additional deposit of $800,000 shall be re/eased to seller from escrow on 14,t1&(2Q46 without any further mstructlons^cr
The foregoing terms and conditions are hereby agreed to, and foe undersigned acknowledge receipt of a ccn/1 document.
Date
Buyer/Tenai
Buyer/Tena:
Date
Seller/Landlord
Seller/Landlord
The copyright tavw of the United Statea (Tit!e 17 U.S. Code) forbid the unauthorized reproduction of this tarn, or any portion thereof, by photocopy machine or any other means, indading facsimile or computerized formats. Copyright© 18SS-2012. CALIFORNIA ASSOCIATION OF REALTORS©, INC. ALL RIGHTS RESERVED.THIS FORM HAS BEEN APPROVED 8Y THE CALIFORNIA ASSOCIATION OF REALTORS® (C AR .). NO REPRESENTATION tS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION £N ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT AN APPROPRIATE PROFESSIONALThis form is available for use by the entire real estate industry, it b not Intended to identify the user as a REALTOR®. REALTOR® b a registered collective membership rrterh which may be used only by members of the NATIONAL ASSOCIATION OF REALTORS© who subscribe to its Code of Ethics,
ELPubtUud end Distributed bf.REAL ESTATE BUSINESS SERVICES. NO. a &sbsi£aiy of Che Ce&oma Awaxasttw of REALTORS® 525 Soutfi Vffjpl Avenue. Lcj Angelas. CsSfomia 90020
ADM REVISED 4/12 (PAG E 1 O F 1)Ravknrod b y_
ADDENDUM (ADM PAGE 1 OF 1)
T tJ o P ro p e rt ia .i l Corporate F U u W i O N E W P O R T B E A C H . C A 9 W W Pnono: 949J7S3SSS Fax: M 9 J 5 S ^ J 4 9 S tB V f a U d o N w dPO G fl S K O R O _______________________________Pfflrtm wt with Ttn fn n rrB try Tjnl i m 1WV7n H i m Mila Rna d Fraser Michigan 4flfl3S w w w Tioloafar com ____________ ______________________________________
A S S O C I A T I O N & t L l - t K U U U N » C K U C T t K N O . 1O F R E A L T O R S ® * May not be used as a multiple counter offer.
V [CJLR. Form SCO, 11/14)
This is a counter offer to the: |xj California Residential Purchase Agreement, Q Buyer Counter Offer No.____, or Q o th e r________ {"Offer").dated________________________ . on property known as _______ 618 Via Lido Nord, Newport Beach. CA 92663_______ (“Property"),between Michael J . Avonattl, U sa Storle-AvenattI (“Buyer") and_________ Gary E. Primm Family Trust_________ (“Seller").
1. TERMS: The terms and conditions of the above referenced document are accepted subject to the following:A. Paragraphs in the Offer that require initials by all parties, but are not initialed by all parties, are excluded from the final
agreement unless specifically referenced for Inclusion in paragraph 1C of this or another Counter Offer or an addendum.B. Unless otherwise agreed In writing, down payment and loan amount(s) will be adjusted In the same proportion as In
the original Offer.
C. O THER TERM S: 1. Both parties are advised to consult with their own attorney's and tax consultants_________________
2. A ll deposit monies shall be released to seller on 11/16/2015____________________________________________ ______________
3. Buyer to perform all due-diliqence to satisfy themselves of any questions, issues or concerns related to subject
property.__________ _____________________________________________________________________________________________________
4. All monthly payments o f $100.000 are to be released to seller through a wire transfer___________________ ;____________
5. See Addendum Two______________________________________________________________________________„ ____________
6. Change the time period in paragraph 14A from S days to 10 days________________ _____________________________________
Date Septem ber 23.2015
D. The following attached addenda are incorporated Into this Seller Counter offer: (^Addendum No. Two_________ _______□ □ ____________________________________________
2. ^EXPIRATION: This Seller Counter Offer shall be deemed revoked and the deposits, if any, shall be returned:A. Unless by 5:00pm on the third Day After the date it is signed in paragraph 3 (if more than one signature then, the last signature
date)(crby 12:00 f lA M [>j]PM on 09/24/2015 (date)) (t) it is signed in paragraph 4 by Buyer and (H) a copy of the signed SellerCounter Offer is persopaWyTfeceived by Seller or Doug Skoro_______________________________ , who is authorized to receive it.
OR B. if Seller withdraws writiqg (CAR Form W OO) anytime prior to Acceptance.
3. OFFESellerSeller
IS C O U N TER O FF£R O N T H E TERMS A BO VE A N D A C KN O W LED G ES RECEIPT O F A COPY.Gary f t Primm Family Trust Date 09/23/2015
Dale
4. ACCEPTANand acknowledge
Buyer Buyer
Sunter Offer (If checked □ S U B JE C T T O TH E A TTA C H E D CO UN TER OFFER)
^ I T S / I S T im e 6 £ 5 f_ Q AM/ t A Tlmef t : <pj£~ I T AM/ [tU fa
Michael J . Avenafff Date Lisa Storie-Avenatti Dati
CONFIRMATION O F A CC pP TA N CE:
(_______/ " i K ) (Initials) Confirmation of Acceptance: A Cop;authorized agent as specified In paragraph 2A on (date) * J created when a Copy of Signed Acceptance is personally received b confirmed in this document
r tance wa; at ji l
ersonaliy received by Seller, or Seller’s AM/ f& pM . A binding Agreement is
Seller or Seiler’s authorized agent whether or not
02014, California Association of REALTORS®, Inc. United States copyright taw (Title 17 U.S. Cods) forbids the unauthorized distribution, display and reproduction of thts form, or airy portion thereof, by photocopy machine or any other means, inducting fa csimite or computerized formats.THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORS© (CAR.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ACCURACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE. CONSULT AN APPROPRIATE PROFESSIONAL.This form 13 made available to real estate professionals through an agreement wtth or purchase from the California Association of REALTORS®. It is not intended to identify the user as a REALTOR©. REALTOR® is a registered oo3ecirvs membership mark which may be used only by members of the NATIONAL ASSOCIATION OF REALTORS® who subscr&e to Ba Coda of Ethics.
IPirbfisbed and Distributed by:REAL ESTATE BUSINESS SERVICES, INC. a subsidiary of the CaStbmla Association of REALTORS® 525 South VIrgB Avenue, Los Angeles, California 90020
S C 0 11/14 (PAGE 1 O F 1)Reviewed b y _______________ Date
S E L L E R C O U N T E R O F F E R (S C O P A G E 1 O F 1)Tda PreptTUo, 12 Corpentt F b a #250 NEWPORT BEACH, CA 92660 Phono: W9 J7JLM45 Fiw: 949J5A5M9 611VH Lhfe KenlDOUG SKORO_______________________ Produced with tfpForm® by itpLogt* 18070 Ftftaan Kilo Roaft Fraser. Mtctdgan 48026 g p w com________________________________
EXHIBIT
DocuSign Envelope ID: EABD7E15-8030-4982-9077-45ABA059D929
C a l i f o r n i a INTERIM OCCUPANCY AGREEMENTopSn°pCA BuYer in Possession Prior to Close of EscrowO F R E A L T O R S (CJLR. Form IOA, Revlsod 1/06)
Gary E. Primm Family TR UST________________________________________________ (“Seiler/Landlord’)and___________________________ Michael J . AvcnatO, Usa Starie-Avenatti. and/or their Assintjeefsi_____________________________ CBuyer/Tenant")have entered into a purchase agreement for the real property described below. Close of escrow for the purchase agreement is scheduled to occur on
or before 8/31/16 (date). Seller, as Landlord, and Buyer, as Tenant, agree as follows:1. PROPERTY:
A Landlord rents to Tenant and Tenant rents from Landlord, the real property and improvements described as: 618 Via U d o fiord. NewportBeach. CA S2663_______________________________________________________________________________ CPremises*).
B. The Premises are for the sole use as a personal residence by the following named persons only: The Immediate AvenattI Family._________
C. The personal property listed in the purchase agreement, maintained pursuant to paragraph 11, is included.TERM: The term begins on (date)______________________ December 1.2015_______________________("Commencement Date") and shall terminateal 12:00 MAM/ 0 on the earliest of: (3) the date scheduled for close of escrow of the purchase agreement as spedfied above, or as modified in writing; or (b) mutual cancellation of the purchase agreement. Tenant shall vacate the Premises upon termination of this Agreement, unless: (I) Landlord and Tenant have signed a new agreement, (ii) mandated by local rent control law, or (III) Landlord accepts Rent from Tenant (other than past due Rent), In which case a monlh-to-month tenancy shall be created which either party may terminate pursuant to California Civil Code § 1946.1. Rent shall be at a rate agreed to by Landlord and Tenant, or as allowed by law. AH other terms and conditions of this Agreement shall remain in frill force and effecLRENT: 'Rent' shall mean alt monetary obligations of Tenant to Landlord under the terms of this Agreement, except security deposit.A Tenant agrees to pay $ 100.000.00 per month for the term of this Agreement.B. Rent Is payable in advance on the 1st (or I \ ------- ) day of each calendar week, and is delinquent on the next day; or Q in full at dose
of escrow; o r Q .C. PAYMENT: The Rent shall be paid by G personal check, G money order, Q cashier's check, [ j through escro
(pother via Wire Transfer____________ , to (name) Gary E. Primm(phone)___________________________ at (address)
w (per escrow Instructions), or
(or at any other location subsequently spedfied by Landlord in writing to Tenant) between the hours o f _______________ andthe following days:_________________________________________________________________ ■ if any payment is returned for non-sufficientfunds CNSF") or because tenant stops payment, then, alter that (i) Landlord may, in writing, require Tenant to pay Rent in cash for three months and (ii) all future Rent shall be paid b y Q money order, o rQ cashier's check.
4. SECURITY DEPOSIT:A Tenant agrees to pay S N/A_______________________ as a security deposit Security deposit will be G transferred to and held by Seller;
Qheld in Seller’s Broker's trust account; or [J held in escrow (per escrow instructions).B. (1) If the tenancy is terminated due to the dose of escrow by Buyer under the purchase agreement the full amount of the security deposit.
less any deductions below, shall be credited to Buyer’s down payment on the purchase (or, If checked G returned to Buyer from Seiler’s proceeds In escrow). If required by lender for dosing, Seller shall place the security deposit into escrow prior to the signing of loan documents by Buyer.
(2) All or any portion of the security deposit may be used, as reasonably necessary, to: (I) cure Tenant's default in payment of Rent (which includes Late Charges, NSF fees or other sums due); (if) repair damage, exduding ordinary wear and tear, caused by Tenant or by a guest or licensee of Tenant; (HI) dean Premises, if necessary, upon termination of the tenancy, and (Iv) replace or return persona) property or appurtenances. SECURITY DEPOSIT SHALL NOT BE USED BY TEN A N T IN U E U OF PAYM ENT O F LA S T MONTH’S RENT, (fail or any portion of the security deposit is used during the tenancy. Tenant agrees to reinstate the total security deposit within 5 Days after written notice is delivered to Tenant.
(3) Within 21 days after Tenant vacates the Premises. Landlord shall: (i) furnish Tenant an Itemized statement indicating the amount of any security deposit received and the basis for its disposition; and (II) return any remaining portion of the security deposit to Tenant
C. Except when escrow closes, security deposit will not be returned until all Tenants have vacated the Premises. Any security deposit returned by check shall be made out to all Tenants named on this Agreement, or as subsequently modified.
D. No interest will be paid on security deposit unless required by local Law.E. if the security deposit is held by Seller, Tenant agrees not to hold Broker responsible for Its return. If the security deposit is held in Seiler’s
Broker's trust account, and Broker’s authority is terminated before expiration of this Agreement, and security deposit Is released to someone other than Tenant, then Broker shall notify Tenant, in writing, where and to whom security deposit has been released. Once Tenant has been provided such notice, Tenant agrees not to hold Broker responsible for the security deposit.
5. MOVE-tN COSTS RECEJVED/DUE: Move-in funds made payable l o _________________________ Gary E. Primm_________________________ shaft bepaid by G personal check, G money order. Q cashier’s check, o r G through escrow (per escrow Instructions).
Category Total Due Payment Received Balance Due Date DueRent From 12/01/2015 To 12/31/2015 (date) $100,000.00 $100,000.00 12/01/2015•Security DepositOtherOtherTotat $100,000.00 $100,000.00Tiro maximum amount Landlord may receive as security deposit however designated, cannot exceed two months* Rent furnished premises.
Tenant's Initials (Landlord's initials (
Copyright©! B85-2007, Caifcmia Association o( Realtors®. Inc.IOA REVISED 1/06 (PAGE 1 O F 6)
mtshed pannings, or three months' Rent for
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IN TER IM O C C U P A N C Y A G R E E M E N T (IO A P A G E 1 O F 6)EU R TER R E PR O PER TIES , 1400 Ntw pon C tnlcr D rirr, Saiti 100 N E W P O R T B E A C H , CA MS60 Phone: 949.697.3353 Fax 949.717.7403 filS Vis Lida NaniROD SMITH Produced wtth apFomrK tr/ tipLogix 18070 Fifteen Mite Rood. Fraier. UicHgm 48030 wwwjtnl odxcom
Premises; 618 Via L id o N ord. N ew p o rt Beach, C A 92663___________________________________________ Date; S e p te m b e r 23, 2015______6 . L A T E C H A R G E ; R E T U R N E D C H E C K S :
A. Tenant acknowledges either late payment of Rent or issuance of a returned check m ay cause Landlord to incur costs and expenses, the exact amounts of which are extremely difficult and impractical to determine. These costs may indude, but are not limited to, processing, enforcement and accounting expenses, and late charges imposed on Landlord. If any installment of Rentdue from Tenant is not received by Landlord within 5 (o r Q ) calendar days after the date due, or if a check is returned,Tenant shall pay to Landlord, respectively, an additional sum of $ _________________________o r _____________ % of the Rent due asa Late Charge and $25.00 as a N S F fee for the first returned check and $35.00 as a N S F fee for each additional returned check, either or both of which shall be deemed additional Rent
B. Landlord and Tenant agree these charges represent a fair and reasonable estimate of the costs Landlord m ay Incur by reason of Tenant’s late or N S F paym ent Any Late Charge or N S F fee due shall be paid with the current installment of R e n t Landlord's acceptance of any Late Charge or N S F fee shall not constitute a waiver as to any default of Te n a n t Landlord’s right to collect a Late Charge or N S F fee shall not be deemed an extension of the date Rent is due under paragraph 3 o r prevent Landlord from exercising any other rights and remedies under this Agreement and as provided by law.
7. P A R K IN G : (C heck A o r B )[x }A . Parking is permitted as follows; In Garaoes a n d on C ity stre e t as is perm itted.____________________________________________
Th e right to parking (xj is 0 is not included in the Rent charged pursuant to paragraph 3. If not Induded in the Rent, theparking rental fee shall be an additional $ N/A_______________________per month. Parking space(s) are to be used for parkingproperty licensed and operable motor vehicles, except for trailers, boats, campers, buses or trucks (other than pick-up trucks). Tenant shall park in assigned space(s) only. Parking space(s) are to be kept dean. Vehides leaking oil, gas or other motor vehtde fluids shall not be parked on the Premises. Mechanical work or storage of inoperable vehides is not permitted in parking space(s) or elsewhere on the Premises.
O R 0 B . Parking is not permitted on the Premises.8. S T O R A G E : (C heck A o r B )
jx ]A . Storage is permitted as follows: A s is cu sto m a ry within the property. ____________________________________________________The right to storage space [xjis 0 is not induded in the Rent charged pursuant to paragraph 3. If not induded in the Rent,storage space fee shall be an additional $ N/A________________________ per month. Tenant shall store only personal propertyTenant owns, and shall not store property daimed by another or in which another has any right, title or interest Tenant shall not store any improperly packaged food or perishable goods, flammable materials, explosives, hazardous waste or other inherently dangerous material, or illegal substances.
OR Q B. Storage is not permitted on the Premises.S. U T IL IT IE S : Tenant agrees to pay for all utilities and services, and the following charges: poo/.fcof pond.gardenar.Cuiiigan.pest control
except N/A__________________________________________ , which shall be paid for by Landlord. If any utilities are not separately metered.Tenant shall pay Tenant's proportional share, as reasonably determined and directed by Landlord. If utilities are separately metered, Tenant shall place utilities in Tenant’s name as of the Commencement Date. Landlord is only responsible for installing and maintaining one usable telephone jack and one telephone tine to the Premises. Tenant shall pay any cost for conversion from existing utilities service provider.
10. C O N D ITIO N O F P R E M IS E S : Tenant has examined Premises, all furniture, furnishings, appliances, landscaping, if any, and fixtures, including smoke detectors).(C heck all that a pp ly:)[xj A . Tenant acknowledges these items are clean and in operable condition, with the following exceptions:_______________________
j” ! B* Tenant's acknowledgment of foe condition of these items is contained in an attached statement of condition ( C A R . Form MIM O).
0 C . Tenant will provide Landlord a list of items that are damaged or not in operable condition within 3 (o r 0 ______________) Daysafter Commencement Date, not as a contingency of foe Agreement but rather as an acknowledgment of foe condition of foe Premises.
0 D. O th e r ,___________ .11. M A IN TE N A N C E :
A . Tenant shall properly use, operate and safeguard Premises, including if applicable, any landscaping, furniture, furnishings and appliances, and all mechanical, electrical, gas and plumbing fixtures, carbon monoxide devices and smoke alarms and keep them and the Premises dean, sanitary and well ventilated. Tenant shall be responsible for checking and maintaining any additional phone lines beyond the one line and jack that Landlord shall provide and maintain. Tenant shall immediately notify Landlord, in writing, of any problem, malfunction or damage with any item on the property, induding carbon monoxide devices and smoke alarms. Tenant shall be charged for ail repairs or replacements caused by Tenant, pets, guests or licensees of Tenant, exduding ordinary w ear and tear. Tenant shall be charged for all damage to Premises as a result of failure to report a problem in a timely manner. Tenant shall be charged for repair of drain blockages or stoppages, unless caused by defective plumbing parts or tree roots invading sewer lines.
E . 0 Landlord |xj Tenant shall water foe garden, landscaping, trees and shrubs, except ______________________________________
C. 0 Landlord 1x1 Tenant shall maintain the garden, landscaping, trees and shrubs, except
D. [~| Landlord Ixl Tenant shall maintain k o l po n d , spa, dock & pier
Tenant’s Initials (Landlord’s Initials {
10A REVISED 1/06 (PAGE 2 OF 6)
IN T E R IM O C C U P A N C Y A G R E E M E N T ( lO A P A G E 2 1Produced wdfi zrpFomr® by zipLogi* 16070 fifteen Kflc Road. Fraser. U idrigen 46026 vww ztnl om ccom 6tS VI* Lida Non)
DocuSign Envelope ID; EABD7E15-8030-4982-9077-4SA8A059D929
DocuSign Envelope ID: EABD7E15-8030-4982-9077-45ABAG59D929
Premises: 618 Via L id o N ord. N e w p o rt Beach. C A 92663____________________________________________Date: S e p te m b e r 23, 2015______E . Tenant's failure to maintain any item for which Tenant is responsible shall give Landlord the right to hire someone to perform
such maintenance and charge Tenant to cover the cost of such maintenance.F. Th e following items of personal property are included in the Premises without warranty and landlord will not maintain, repair or
replace them: ______ .12. N E IG H B O R H O O D C O N D IT IO N S : Tenant is advised to satisfy him or herself as to neighborhood or area conditions, including schools,
proximity and adequacy of law enforcement, crime statistics, proximity of registered felons or offenders, fire protection, other governmental services, availability, adequacy and cost of any speed-wired, wireless internet connections or other telecommunications or other technology services and installations, proximity to commercial, industrial or agricultural activities, existing and proposed transportation, construction and development that may affect noise, view, or traffic, airport noise, noise or odor from any source, wild and domestic animals, other nuisances, hazards, or circumstances, cemeteries, facilities and condition of common areas, conditions and influences of significance to certain cultures and/or religions, and personal needs, requirements and preferences of Tenant
13. P E T S : Unless otherwise provided in California Civil Code § 54.2, no animai or pet shall be kept on or about the Premises without Landlord's prior written consent, except: 1 doe.____________________________________________________________________________ .
14. R U L E S ; R E G U L A T IO N S :A . Tenant agrees to comply with all Landlord rules and regulations that are at any time posted on the Premises or delivered to
Te n a n t Tenant shall not, and shalf ensure that guests and licensees of Tenant shall not disturb, annoy, endanger or interfere with other tenants of the building or neighbors, or use the Premises for any unlawful purposes, including, but not limited to, usirtg, manufacturing, selling, storing, or transporting illicit drugs or other contraband, or violate any taw or ordinance, or commit a waste or nuisance on or about the Premises.
B. (If applicable, check o n e :)_ j (1 ) Landlord shall provide Tenant with a copy of the rules and regulations within Days o r ____________________________.
O R ~J (2 ) Tenant has been provided with, and acknowledges receipt of, a copy of the rules and regulations.1 5 .Q < lf checked) C O N D O M IN IU M ; P L A N N E D U N IT D E V E L O P M E N T:
A . The Premises is a unit in a condominium, planned unit, development or other com m on interest subdivision governed by ahomeowners’ association (*HOA“). Th e name of the H O A i s ______________________________________________________________________Tenant agrees to comply with all H O A covenants, conditions and restrictions, bylaws, rules and regulations and decisions. Tenant shall reimburse Landlord for any fines or charges imposed by H O A or other authorities, due to any violation by Tenant or the guests or licensees of Te n a n t
B . (C h e ck on e:)F (1 ) Landlord shall provide Tenant with a copy of the H O A rules and regulations w ithin Days or .
O R L (2) Tenant has been provided with, and acknowledges receipt of, a copy of the HOA rules and regulations.16. A L T E R A T IO N S ; R E P A IR S : Unless otherwise specified by law or paragraph 28 C or pursuant to the purchase agreement, without
Landlord's prior written consent: (I) Tenant shall not make any repairs, alterations or improvements in or about the Premises including: painting, wallpapering, adding or changing locks, installing antenna or satellite dish(es), placing signs, displays or exhibits, or using screws, fastening devices, targe nails or adhesive materials; (ii) Landlord shall not be responsible for the costs of repairs, alterations or improvements made by Tenant; {III) Tenant shall not deduct from Rent the costs of any repairs, alterations or improvements; and (iv ) any deduction made by Tenant shall be considered unpaid R ent Tenant shall immediately notify Landlord if Tenant Individually or by or through others, commences any work on the Premises. Tenant shall be charged for any costs Landlord incurs to post and record a Notice of Non-Responsibility for any such work. Upon completion of any such work. Tenant shall notify Landlord. Tenant shall be charged for any costs Landlord incurs to post and record a Notice of Completion relating to any such work. Tenant agrees to indemnify, defend and hold harmless Landlord for any mechanic's lien attaching to the Premises or other claim resulting from any work ordered by T e n a n t
17. K E Y S ; L O C K S :A . Tenant acknowledges receipt of (or Tenant will receive [ J prior to the Commencement Date, or [x] 12/1/15____________________ ):
. key(s) to Premises, key(s) to mailbox, key(s) to common area(s),
X 3 remote control device(s) for garage door/gale openerfs),
B . Tenant acknowledges that locks to the Premises {Jh a v e , [ J have not, been re-keyed.C . If Tenant re-keys existing locks or opening devices. Tenant shall immediately deliver copies of all keys to Landlord. Tenant shall
pay all costs and charges related to loss of any keys or opening devices. Tenant may not remove locks, even if installed by Tenant18. E N TR Y :
A . Tenant shall make Premises available to Landlord or Landlord's representative for the purpose of entering to make necessary or agreed repairs, decorations, alterations, or improvements, or to supply necessary or agreed services, or to show Premises to prospective or actual purchasers, tenants, mortgagees, lenders, appraisers, or contractors.
B . Landlord and Tenant agree that 24-hour written notice shall be reasonable and sufficient notice, except as follows. 48-hour written notice is required to conduct an inspection of the Premises prior to the Tenant moving cirt, unless the Tenant waives the right to such notice. Notice may be given orally to show the Premises to actual or prospective purchasers provided Tenant has been notified in writing within 120 Days preceding the oral notice that the Premises are for sale and that oral notice m ay be given to show the Premises. No notice Is required to (I) enter in case of an emergency; (II) if the Tenant is present and consents at the time of entry or (Hi) the Tenant has abandoned or surrendered the Premises. No written notice is required if Landlord and Tenant orally agree to an entry for agreed services or repairs if the date and time of entry are within one/GrEpjjQof the ojSTpQPeement
Tenant's Initials ( I 1A 1Landlord's Initials (L r r \ t f S ) ( v )
IOA REVISED 1/OS (PAGE 3 OF 6)
IN TER IM O C C U P A N C Y A G R E E M E N T (IO A P A G E 3 O F 6)Produced wtlh zipFcm j® by 2ipLogtx 18070 Fifteen Mia Roed. Fraser. UUcfsgen 48026 w w pclooix-com 618 Vt* Lido Noni
C . 0 (if checked) Tenant authorizes the use of a keysafe/lockbox to allow entry into the Premises and agrees to sign a keysafe/tockbox addendum ( C A R , Form KLA}.
1$. S IG N S : Tenant authorizes Landlord to place F O R SALE/LEASE signs on the Premises,20. A S S IG N M E N T; S U B L E T T IN G : Tenant shall not sublet all or any part of Premises, or assign or transfer this Agreement or any interest
herein, without Landlord's prior written consent Unless such consent is obtained, any assignment, transfer or subletting of Premises or this Agreement or tenancy, by voluntary act of Tenant, operation of law or otherwise, shall at the option of Landlord, terminate foe Agreement. Any proposed assignee, transferee or sublessee shall submit to Landlord an application and credit information for Landlord's approval and, if approved, sign a separate written agreement with Landlord and TenanL Landlord's consent to any one assignment, transfer or sublease, shall not be construed as consent to any subsequent assignment, transfer or sublease and does not release Tenant of Tenant's obligations under this AgreemenL
21. J O IN T A N D IN D IV ID U A L O B L IG A T IO N S : If there is more than one Tenant, each one shall be individually and completely responsible for the performance of all obligations of Tenant under this Agreement, jointly with every other Te n a n t and individually, whether or not in possession.
2 2 .0 L E A D -B A S E D P A IN T (If check ed): Premises was constructed prior to 1978. In accordance with federal law. Landlord gives and Tenant acknowledges receipt of the disclosures on foe attached form (C .A .R . Form F L D ) and a federally approved lead pamphlet
2 3 .0 M ILITA R Y O R D N A N C E D IS C L O S U R E : (If applicable and known to Landlord) Premises is located within one mile of an area once used for military training, and may contain potentially explosive munitions.
2 4 .0 P ER IO D IC P E S T C O N T R O L : Landlord has entered into a contract for periodic pest control treatment of foe Premises and shall qiye Tenant a copy of the notice originally given to Landlord by the pest control company.
2 5 .0 M E TH A M P H E TA M IN E C O N T A M IN A T IO N : Prior to signing this Agreement, Landlord has given Tenant a notice that a health official has issued an order prohibiting occupancy of foe property because of mefoamphetamine contamination. A copy of the notice and order are attached.
26. M E G A N 'S L A W D A T A B A S E D IS C L O S U R E : Notice: Pursuant to Section 290.46 of foe Penal Code, information about specified registered sex offenders is made available to foe public via an Internet W eb site maintained by the Department of Justioe at www.meganslaw.ca.gov. Depending on an offender’s criminal history, this information will include either foe address at which foe offender resides or foe community of residence and 21P Code in which he or she resides. (Neither Landlord nor Brokers, if any, are required to check this website, if Tenant wants further information. Tenant should obtain information directly from this website.)
27. P O S S E S S IO N :A . Tenant is not in possession of foe premises. If Landlord is unable to deliver possession of Premises on Commencement Date,
such Date shall be extended to the date on which possession is made available to TenanL If Landlord is unable to deliverpossession within 5 (o r 0 _________ ) calendar days after agreed Commencement Date, Tenant m ay terminate this Agreementby giving written notice to Landlord, and shall be refunded all Rent and security deposit paid. Possession is deemed terminated when Tenant has returned all keys to the Premises to Landlord.
B. 0 Tenant is already in possession of foe Premises.28. T E N A N T S O B L IG A TIO N S U P O N V A C A T IN G P R EM IS ES : If foe tenancy is terminated due to any reason other than dose of escrow
by Buyer under foe purchase agreement, upon termination of this Agreement:A . Tenant shall: (I) give Landlord al! copies of all keys or opening devices to Premises, induding any common areas; (H) vacate and
surrender Premises to Landlord, empty of ail persons; (iii) vacate any/all parking and/or storage space; ( iv ) clean and deliver Premises, as spedfied in paragraph C below, to Landlord in foe same condition as referenced in paragraph 10; (v ) remove all debris; (v l) give written notice to Landlord of Tenant’s forwarding address; and (v l i )____________________________________________ .
B . Alt alterations/improvements made by or caused to be made by TenanL with or without Landlord's consent become foe property of Landlord upon termination. Landlord may charge Tenant for restoration of the Premises to the condition it was in prior to any alterations/improvements.
C . R ight to P re -M o ve -O u t Inspection and Repairs as follows: (i) After giving or receiving notice of termination of a tenancy ( C A R . Form N T T ) , or before the end of a lease, Tenant has the right to request that an inspection of the Premises take place prior to termination of the lease or rental (C .A .R . Form NRI). If Tenant requests such an inspection. Tenant shall be given an opportunity to remedy identified deficiencies prior to termination, consistent with foe terms of this AgreemenL (ii) Any repairs or alterations made to foe Premises as a result of this inspection (collectively. “Repairs0) shall be made at Tenant’s expense. Repairs may be performed by Tenant or through others, who have adequate insurance and licenses and are approved by Landlord. Th e work shall comply with applicable law, including governmental permiL inspection and approval requirements. Repairs shall be performed in a good, skillful manner with materials of quality and appearance comparable to existing materials. It is understood that exact restoration of appearance or cosmetic items following all Repairs may not be possible, (iii) Tenant shall: (a ) obtain receipts for Repairs performed by others; (b ) prepare a written statement indicating foe Repairs performed by Tenant and foe date of such Repairs; and (c ) provide copies of receipts and statements to Landlord prior to termination.
29. B R E A C H O F C O N T R A C T ; E A R L Y T E R M IN A T IO N : in addition to any obligations established by paragraph 27. tn event of termination by Tenant prior to completion of foe original term of foe AgreemenL Tenant shall also be responsible for lost RenL rental commissions, advertising expenses and painting costs necessary to ready Premises for re-rental. Landlord m ay withhold any such amounts from Tenant's security deposit
DocuSign Envelope ID: EABD7E15-B030-49B2-9077-45ABA059D929
Premises: 618 Via L id o N o rd . N ew p o rt Beach. C A 92663___________________________________________Date: S eptem b er 23, 2015
EOA REVISED 1/06 (P A G E4 OF 6)
Tenant's Initials (Landlord's Initials (
IN TERIM O C C U P A N C Y A G R E E M E N T (IO A P A G E 4 O F 6)Produced wtth apForm ® t>y zjpLogix 18070 Ftftftftrt Mde Road. F raicr. Michigan 43036 413 Via Udo Fiord
Premises: 6 18 Via U d o N ord, N e w p o rt Beach, C A 92663___________________________________________ Date: S eptem b er 23. 201S30. TE M P O R A R Y R E L O C A T IO N : Subject to local law, Tenant agrees, upon demand of Landlord, to temporarily vacate Premises for a
reasonable period, to allow for fumigation (or other methods) to control wood destroying pests or organisms, or other repairs to Premises. Tenant agrees to comply with all instructions and requirements necessary to prepare Premises to accommodate pest control, fumigation or other work, including bagging or storage of food and medicine, and removal of perishables and valuables. Tenant shall only be entitled to a credit of Rent equal to the per diem Rent for the period of time Tenant is required to vacate Premises.
31. D A M A G E T O P R E M IS E S : If, by no fault of Tenant. Premises are totally or partially damaged or destroyed by fire, earthquake, accident or other casualty that render Premises totally or partially uninhabitable, either Landlord or Tenant may terminate this Agreement by giving the other written notice. Rent shall be abated as of the date Premises become totally or partially uninhabitable. The abated amount shall be the current monthly Rent prorated on a 30-day period. If this Agreement is not terminated, Landlord shall promptly repair the damage, and Rent shall be reduced based on the extent to which the damage interferes with Tenants reasonable use of Premises. If damage occurs as a result of an act of Tenant or Tenant’s guests, only Landlord shall have the right of termination, and no reduction in Rent shall be made.
32. IN S U R A N C E : Tenant’s or guest's personal property and vehicles are not insured by Landlord, manager or. if applicable. HOA, against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause. Tenant is advised to carry Te n a n t’s o w n insurance (renter’s insurance) to protect Te n a n t from a n y s u ch loss o r dam age. Tenant shall comply with any requirement imposed on Tenant by Landlord's insurer to avoid: (i) an increase in Landlord’s insurance premium (or Tenant shall pay for the increase in premium); or (ii) loss of insurance.
33. W A T E R B E D S : Tenant shall not use or have waterbeds on the Premises unless: (i) Tenant obtains a valid waterbed insurance policy; (il) Tenant Increases the security deposit in an amount equal to one-half of one month's Rent; and (iii) the bed conforms to the floor load capacity of Premises.
34. W A IV ER : Th e waiver of any breach shall not be construed as a continuing waiver of the same or any subsequent breach.35. N O TIC E : Notices may be served at the following address, or at any other location subsequently designated:
Landlord: G a ry E P rim m F a m ily T R U S T _________________ Ten ant M lchae! J . A ve n a tti___________________________________
DoeuSign Envelope ID: EABD7E15-S03CM982-9077-45ABA059D929
36. T E N A N T E S T O P P E L C E R T IF IC A T E : Tenant shall execute and return a tenant estoppel certificate delivered to Tenant by Landlord or Landlord’s agent within 3 Days after its receipt. Failure to comply with this requirement shall be deemed Tenant’s acknowledgment that the tenant estoppel certificate is true and correct, and may be relied upon by a lender or purchaser.
37 . T E N A N T R E P R E S E N TA TIO N S ; C R E D IT : Tenant warrants that all statements in Tenants rental application are accurate. Tenant authorizes Landlord and Brokers) to obtain Tenants credit report periodically during the tenancy in connection with modification or enforcement of this Agreement Landlord may cancel this Agreement (i) before occupancy begins; (ii) upon disapproval of the credit report(s); or (ill) at any time, upon discovering that information in Tenants application is false. A negative credit report reflecting on Tenants record may be submitted to a credit reporting agency if Tenant fails to fulfill the terms of payment and other obligations under this Agreement
38. M E D IA TIO N :A . Consistent with paragraphs B and C below, Landlord and Tenant agree to mediate any dispute or claim arising between them out
|of this Agreement, or any resulting transaction, before resorting to court action. Mediation fees, if any, shall be divided equally among the parties Involved. If, for any dispute or daim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.
B . The following matters are excluded from mediation: (I) an unlawful detainer action; (ii) the filing or enforcement of a mechanic's lien; and (iii) any matter within the jurisdiction of a probate, small daims or bankruptcy court Th e filing of a court action to enable the recording of a notice of pending adion, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the mediation provision.
C . Landlord and Tenant agree to mediate disputes or daims involving Listing Agent, Leasing Agent or property manager ("Broker’ ), provided Broker shall have agreed to such mediation prior to, or within a reasonable time after, the dispute or daim is presented to such Broker. Any election by Broker to partidpate in mediation shall not result in Broker being deemed a party to this Agreement
39. A T T O R N E Y F E E S : In any action or proceeding arising out of the Agreement the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, except as provided in paragraph 38A.
40. C A R , F O R M : C A R . Form means the spedfic form referenced or another comparable form agreed to by the parties.41. O T H E R T E R M S A N D C O N D IT IO N S ; S U P P L E M E N T S : Q Interpreter/Translator Agreement (C A R . Form 1TA 1:__________________________
G Keysafefl.QCkfrOX Addendum, .(C A R . Farm. KLA); □ Lead-BasetLEalot and Uad-Based Paint-Hazards Disclosure fC.A.R. Form FLD1 Th e following A T T A C H E D supplements are incorporated into this Agreem ent _________________________________________________ __
42. TIM E O F E S S E N C E ; E N T IR E A G R E E M E N T : Tim e is of the essence. All understandings between the parties are incorporated In this Agreement Its terms are intended by the parties as a final, complete and exdusrve expression of their Agreement with respect to its subject matter, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement If any provision of this Agreement is held to be ineffective or invalid, the remaining provisions will nevertheless be given full fence and effect Neither this Agreement nor any provision In it may be extended, amended, modified, altered or changed except in writing. This Agreement is subject to California land lord-ten ant law and shall incorporate all changes required by amendment or successors to such law. The Agreement and any supplement, addendum or modification, induding any copy, may be signeftUn two or mgge counterparts, all of which shall constitute one and the same writing. C Z „ '
Tenant's Initials f!Landlord's initials
IOA REVISED 1/C6 (PAGE S O F 6)IN TER IM O C C U P A N C Y A G R E E M E N T (IO A P A G E 5 O F 6)
ProthJcetJ wfilj 2ipFem*0 by zipLOflii 18070 Fifteen MSa Road. Frater. Michigan 48026 i i m i Tin) oofi com 6 IB V Jj lid o Nani
DocuSign Envelope ID: EABD7E15-B030-4982-9077-45ABA059D929
43. A G E N C Y :A . C O N F IR M A T IO N : Th e following agency relationship(s) are hereby confirmed for this transaction:
Listing A gen t (Agent representing the Seller in the purchase agreement)(Print firm n a m e )_______ — i— . Teles Properties. Inc_____________________________________________ _is the agent of (check one); |_|the Landlord exclusively; or|_Jboth the Landlord and Te n a n t Selling Agent: (Agent representing the Buyer in the purchase agreement)(Print firm n a m e )________________________________ Surterre Properties. Inc___________ ______(if not same as Listing Agent) is the agent of (check one): |xj the Tenant exclusively; or [ J the Landlord exclusively; or y both the Tenant and Landlord.
B. D IS C L O S U R E : 0 (If checked): The term of this lease exceeds one year. A disclosure regarding real estate agency relationships (C .A.R . Form A D ) has been provided to Landlord and Tenant, who each acknowledge its receipt
44. 0NTERPRETER/TRANSLATOR: Th e terms of this Agreement have been Interpreted for Tenant into the followinglanguage: N/A____________________________________________________________________ _. Landlord and Tenant acknowledge receipt ofthe attached interpretator/translator agreement. (C .A .R . Form ITA).
45. FO R EIG N L A N G U A G E N E G O T IA T IO N : if this Agreement has been negotiated by Landlord and Tenant primarily in Spanish, Chinese, Tagaiog, Korean. Vietnamese or pursuant to the California Civil Code, Tenant shall be provided a translation of this Agreement in the language used for the negotiation.
4$, R E C E IP T : If specified in paragraph 5, Landlord or Broker, acknowledges receipt of move-in funds,
Premises: 618 Via Lido Nord. Newport Beach, C A 92663______________________________________Date: September 23, 201S
Landlord and Tenant acknowledge and agree Brokers: (a) do nol guarantee the condition of the Premises; (b ) cannot verify representations made by others; (c ) cannot provide legal or tax advice; (d ) will not provide other advice or information that exceeds the knowledge, education or experience required to obtain a real estate license. Furthermore, Brokers: (e) do not dedde what rental rate a Tenant should pay or Landlord should accept; and (f) do not decide upon the length or other terms of tenancy. Landlord and
J t i, tax, insurance and other desired assistance from appropriate professionals.Tenant agree they will seek legal, ...... j ■—PocugQJMLfcyc----------- A W L i d M ichael J , A ve n a tti Date 09/23/2015
Address ' — 2asebif3932we3... Citv State Zip
Telephone Fax E-mail......
Tenant/Buyer I f a Usa Storto-AvonaOi, and/or their Asalngoofs) Date 09/23/2015
Address ' ----- 503)1A388CFE4E8... City State Zip
Telephone r \ E-mail
Landlord/Seller , J L
^ .........
G e r v E . Prim m Fa m ltv T R U S T Date 09/23/2015
Landlord/Seller 1 ^ Date
Landlord Address Citv State Zio
Telephone Fax E-mail
R E A L E S T A T E B R O K E R S :A . Brokers are not a party to the Agreement between Landlord and Te n a n tB . Agency relationships are confirmed as above.
Real Estate Broker Surterre Properties, In c O R E Lie. # 01778230
By (Agpnt)
Addr
t representing the Buyer in the purchase agreement)
R o b S m ith D R E Lie, # 01113111
State C Aft C e n te r Drive. Ste. 100
Telephone (3401697-8855 Fax (9791717-7408
_ City N ew port Beach__________________
________ E-mail rsm ith & surterreprop ertJcs.co m
Date 09/23/2015
Zip 92660
Real Estate Broker Teles Properties. Inc__________________________________________________________(Agent representing the Seller in the purchase agreement)
_________________________________________________________ D o u g S k oro D R E Lie. #
D R E Lie. #
By (A gen t)_______________________________
Address 12 Corporate Plaza, S uite 250 City N ew port Beach State C A
Telephone 045)375-3445 Fax E-mail d o u g s k o ro & g m a lL c o m
Date 09/23/2015
Zip 92660
© 1995-2007, CaHcmia Association of REALTORS©, inc. United States copyright taw (Title 17 U.S. Code) forbids the unauthorized distribution, display and reproduction of this form, or any portion them!, by photocopy machine or any other means, inducting facsimile or computerized formats.THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ACCURACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE. CONSULT AN APPROPRIATE PROFESSIONAL.
Published and Distributed by:REAL ESTATE BUSINESS SERVICES, INC. a subsidiary of the Ca&amia Association of REALTORS®525 South Vbg3 Avenue. Los Angeles. California SO020
I nnnon
ELIOA REVISED 1/06 (PAGE 6 OF 6)
IN TE R IM O C C U P A N C Y A G R E E M E N T (IO A P A G E S O F 6 )Produced with zjpForm® by zipLcgi* 1B070 Firioen M3e Road. Fraser, Uteiugon wvw.pnLoqix.coni 615 Iris Lido Nord
EXHIBIT
PLD-C-001ATTORNEY OR PARTY WITHOUT ATTORNEY (Nema, Statu Bar number, and address):
Rachel R Raymond {State Bar No 2 69 8 32 ) Law Offices of Rachel Raymond 1151 El Centro St, Suite D South Pasadena, CA 91030
TELEPHONE NO: g 2 6 —2 6 9—9 4 9 0 FAX NO. (Optional);
E-MAIL ADDRESS (Optional):
a t t o r n e y f o r (Name): plaintiff Maseco S.A.
FOR COURT USE ONLY
ELECTRONICALLY FILEDSuperior Court of California,
County of Orange
08/29/2016 at 02:56:31 PM
Clerk of the Superior Court By Danielle Jurado,Deputy Clerk
SU P ER IO R C O U R T O F C A LIFO R N IA , C O U N T Y O F ORANGE /CJC s t r e e t a o o r e s s : 700 Civic Center Drive WestMAILING AOORESS:
c !t y a n d z i p c o d e : Santa Ana, CA 92701 b r a n c h n a m e : Central
PLAINTIFF: Maseco S.A.defendant: Robert J. Herbert(“21 D OES 1 T O 1 0
C O N T R A C T
G O C O M P LA IN T C D A M E N D E D C O M P LA IN T (N um ber):
O 1 C R O S S -C O M P L A IN T i 1 A M E N D E D C R O S S -C O M P L A IN T (N um ber):
Jurisdiction (check all that apply):1 1 A C TIO N IS A LIM ITED CIVIL C A S E
Amount demanded IC ~ ] does not exceed $10,000I I exceeds $10,000 but does not exceed $25,000
G 71 A C TIO N IS A N U N LIM ITED CIVIL C A S E (exceeds $25,000)I I A C TIO N IS R EC LA S S IFIE D by this amended complaint or cross-complaint
I I from limited to unlimited [ I from unlimited to limited
CASE NUMBER:
30-2016-00872019- C U- B C- C J C
Judge Theodore Howard
1. Plaintiff* (name or names): M a s e c o S . A .
alleges causes of action against defendant* (name or names): R o b e r t J . H e r b e r t
2. This pleading, including attachments and exhibits, consists of the following number of pages:
3. a. Each plaintiff named above is a competent adult
I y I except plaintiff {name): M a s e c o S . A .(1) I la corporation qualified to do business in California(2 ) I [an unincorporated entity (describe):<3) [Z J o t h e r < s p e c « : A d u l y f o r n i e d a n d existing corporation
b. I I Plaintiff (name):
3- f Z J has complied with the fictitious business name laws and is doing business under the fictitious name (specify):
h- L ...J has complied with all licensing requirements as a licensed (specify):c. r S Information about additional plaintiffs who are not competent adults is shown in Attachment 3c.
4. a. Each defendant named above is a natural personI ~ 1 except defendant (name): I I except defendant (name):
CO f 1 a business organization, form unknown ( 1) j I a business organization, form unknown(2 ) i t a corporation (2 ) j j a corporation(3) i t an unincorporated entity (describe): (3} I j an unincorporated entity (describe):
(4) ( I a public entity (describe): (4) | j a public entity (describe):
(5) [ p o t h e r (specify): ( 5) | | other (specify):* Jf this form is used as a cross-complaint, plaintiff means aoss-compfsinant and defendant means cross-defendant _________________ Pagal of 2
^ S a lC o u n a l of CaWon-iia^ CO M PLA IN T ------Contract Code of Civil Procedure, § 425.12PLD-C-0Q1 (Rov. January 1, 2007] www.CalCourtForms.ccni
PLD-C-001SHORT TITLE: CASE NUMBER:
Maseco S.A. v. Herbert
4, (Continued)b. The true names of defendants sued as Does are unknown to plaintiff.
(1) GZU Doe defendants (specify Doe numbers): 1-5________________________were the agents or employees of the nameddefendants and acted within the scope of that agency or employment.
(2) GZD Doe defendants (specify Doe numbers): 6-10______________________ are persons whose capacities are unknown toplaintiff.
c. I I Information about additional defendants who are not natural persons is contained in Attachment 4c.
d. 1 1 Defendants who are joined under Code of Civil Procedure section 382 are (names,):
5- I I Plaintiff is required to comply with a claims statute, anda. I i has complied with applicable claims statutes, orb. I I is excused from complying because (specify):
6. [ H t This action is subject to □ Civil Code section 1812.10 Civil Code section 2984.4.
7. This court is the proper court becausea. C Z ) a defendant entered into the contract here.b. m a defendant lived here when the contract was entered into.c. □ a defendant lives here now.d. □ the contract was to be performed here.e. | | a defendant is a corporation or unincorporated association and its principal place of business is here.f. I ./ I reai property that is the subject of this action is located here.g. j I other (specify):
8. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached):
lt/ i Breach of Contract
I J Common Counts
I I Other (specify):
9* f Z l Other allegations:
Plaintiff is entitled to possession and title to 618 Via Lido Nord, Newport Beach, CA 92663 due to Plaintiff's security interest.
10. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for
a. I V I damages of: $ 1 0 / 0 0 0 , 0 0 0 . 0 0b. 1 ^ \ interest on the damages
{1)GZH according to proof(2 ) i I at the rate of (specify): percent per year from (date):
c. i attorney's fees( 1 ) C D of: $(2) [ □ according to proof.
d. GZH oiher (specify): Possession and title to . the property located at 618 Via LidoNord, Newport Beach, CA 92663
11 • i I The paragraphs of this pleading alleged on information and belief are as fojtows (specify paragraph numbers):
Date: August 29, 2016 V I h j / j V f
Rachel R. Raymond________________ t f s j /(TYPE OR PRINT NAME} (SIGNATURE OF PLAINTIFF OR ATTORNEY)
_______ (If you wish to verify this pleading, affix a verification.)PlD-C-001 (Rev. January 1, 2007] C O M P L A IN T — C o n tra c t Pago 2 of 2
www.CalCourtForms. com
P L D -C -0 0 1 f1 )
SHORT TITLE: CASE RUM8ER:
Maseco v . Herbert
First CAUSE OF ACTION— Breach of Contract{number)
A T T A C H M E N T T O GZD Complaint CUD Cross - Complaint
(Use a separate cause of action form for each cause of action.)
SC -1 . Plaintiff (name): M a s e c o S . A .
alleges that on or about (date): April 25, 2006 a i y I written I I oral I I other (specify): agreement was made between (name parties to agreement):Maseco S.A. and Robert J Herbert
I I A copy of the agreement is attached as Exhibit A , ori y 1 The essential terms of the agreement 1 I are stated in Attachment ESC-1 \~J~I are as follows (specify):
Defendant executed a promissory note in the amount of $10,000,000 secured and collateralized by the property located at 618 Via Lido Nord, Newport Beach, CA 92663. Said promissory note had a ten-year term, with a balloon payment due on August 1, 2016.
8C -2. On or about (dates): August 1, 2016defendant breached the agreement by I I the acts specified in Attachment BC-2 f Z l the following acts(specify):
Failing to pay the amount provided for in the note on the date due. Plaintiff has also discovered that Defendant purported to transfer the property securing the indebtedness in May 2006 without notice to Plaintiff, without Plaintiff's consent, and without accounting for Plaintiff's rights to have the note satisfied in full at closing.
BC-3. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing.
BC-4. Plaintiff suffered damages legally (proximately) caused by defendant’s breach of the agreement
I I as stated in Attachment BC-4 1 </ I as follows (specify):
Principal in the amount of $10,000,000 plus interest according to proof. In addition, as a result of the default under the Note, Plaintiff is entitled to take title and possession of the property. Further, Plaintiff maintains a priority security interest in the property.
BC-5. CZD Plaintiff is entitled to attorney fees by an agreement or a statute
I I of $
I y I according to proof.BC-6. □ □ Other:
Page 3 of 3________________________________________Pap< 1 oM
F,; s s r C A U S E O F A C TIO N — Breach of ContractPLO-C-CO-fl} [Rev. January 1, 3007] www.coumma.ca.gov
www.CalCourtForm s.com
x L ^ l X i JL JlS A JL
RECORDING R EQ U ESTED BY
NAME;. Jam es F. M cG e e , Esq, / M c G e e & Associates
WHEN RECORDED MAIL TO:
Ja m e s F. M cG e e , Esq.
s; 520 Newport Center Drive, Suite 1400
cmvsTATE/zip; Newport Beach, C A 92660
(DOCUMENT WILL ONLy BE ftETURNEp TO NAME* ADDRESS ABOVi-j
R e c o rd e d in Official R e c o r d s , O r a n g e C o u n t y H u gh N g u y e n , C l e r k -R e c o r d e r
lllllilll18'00* $ R 0 0 0 8 9 6 6 2 8 0 $ ■*
2016000664912 10:11 am 121301169 416 0 0 9 F1 3 40 .0 0 0 .0 0 0 .0 0 0 .0 0 9 .0 0 0 .0 0 0 .0 0 0 .0 0
(SPACE ABOVE FOR RECORDER’S USE)
Order Granting Expungement of Notice of Pendancy of Action (C.C.P. §§ 405.30-405.39)
(DOCUMENT TITLE)
SEPARATE PAGE. PURSUANT TO CA. G O V ’T. CODE 27361.6
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McGEE & ASSOCIATES . f i l e dJAMES F. McGEE, ESQ., SBN 93288 cotiS ^ S ^ W orwia520 Newport Center Drive, Suite 1400 £nt«al justice centerNewport Beach, California 92660 W0V 1 8 2016(949) 640-0500
Attorneys for Intervenor GARY E. PRIMM, Trustee byof The Gary E. Primm Family Trust
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
MASECO S.A.,
Plaintiff,
vs.
ROBERT J. HERBERT, an individual; and DOES 1 through 10,
Defendant.
GARY E. PRIMM, Trustee of The Gary E. Primm Family Trust (u/d/t April 10,1984),
Intervenor.
Case No.; 30-2016-00872019-CU-BC-CJC
PPROPOQBP) ORDER GRANTING EXPUNGMENT OF NOTICE OF PENDANCY OF ACTION (C.C.P. §§ 405.30 -405.39)
Action Filed: August 29,2016 Assigned to Hon. Gregory H. Lewis Department C26
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED:
The Notice of Pendency of Action filed in the case titled Maseco S. A.. Plaintiff, vs. Robert J.
Herbert an individual: and Does 1 through 10. Defendant Case No.: 30-2016-00872019-CU-BC-CJC
on August 29,2016, and recorded on August 29,2016, in the official records of Orange County as
Instrument No. 2016000410527 (“Lis Pendens”) relating to the real property located at 618 Via Lido
Nord, Newport Beach, California is hereby expunged pursuant to C.C.P. §§ 405.31 and 405.32.
/ / / /
/ / / /
! I U
ORDER GRANTING EXPUNGEMENT OF NOTICE OF PENDANCY OF ACTION
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r(\)5.36, may not record a Notice of
or jny claims derivideriving therefrom, relating
Further, Plaintiff Maseco S A., pursuant to C.C.P. § 4
Pendency of Action / Lis Pendens with respect to this lawsuit
to the real property located at 618 Via Lido Nord, Newport B̂ actj, California, without leave of court.
IT IS SO ORDERED.
DATED: By:
Hon. Gregoiy H. Lewis Jutige of the Superior Court
R\CLlENT\Pnmm\Sale ofResidenccVHabertVPIcading Clip\Proposed Order - Expunge doc I
)
patooeirfl no i*.n ̂ *• y -^ v T r k "
3KT T O W lO t ii iA iY j liO ;>V:Ti.C'!’: = I- •'
YTUR3Q. .____ —------■ 2 - _____
[PK*5TO^] ORDER GRANTING EXPUNGEMENT OF NOTICE OF PENDANCY OF ACTION
T .I hereby certify Pie foregoing instrument consisting of psgs{s)
is a true and correct copy of the original on 8e m this c& Jt
NOV 2 1 Z01SRCER AND ClERK OF THE
t ^ ^ O i W S S E '
S O N I A R Q M A M
EXHIBIT
Court o f Appeal, Fourth A ppellate District, Division Three
Kevin j. Lane, C lerk/A dm inistrator
E lectronic ally FILED on 1 2 /2 9 /2 0 1 6 b y B onnie LeSage, D epu ty C lerk
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPEUUATE DISTRICT
DIVISION THREE
MASECO S.A.,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY,
Respondent;
ROBERT J. HERBERT et al.,
Real Parties in Interest.
G054362
(Super. Ct. No. 30-2016-00872019)
O R D E R
THE COURT:*
The petition for writ of mandate is DENIED.
O ’LEARY, P. J.
* Before O ’Leary, P. J., Ikola, J., and Thompson, J.
iL A J n L lo l X
Court o f Appeal, Fourth Appellate District, Division Three - No. G054362
S239428
IN THE SUPREME COURT OF CALIFORNIA
E n B anc
MASECO S.A., Petitioner,
v.
SUPERIOR COURT OF ORANGE COUNTY, Respondent;
ROBERT J. HERBERT et a l , Real Parties In Interest.
The petition for review is denied. SUPREME COURT
F I L E DFEB 15 2017
Jorge N avarrete Clerk
Deputy
CANTIL-SAKAUYEChief Justice
EXHIBIT
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J O S E P H E . T H O M A S (State B a r N o . 101443) jthomas@twtlaw, comJ A M E S M . W H I T E L A W (State B a r N o . 171974) j w h ite law @ tw tlaw. comW I L L I A M S. S A N D E R S O N (State B a r N o . 189553)wsanderson@twtlaw. comC H R I S T I N A L . T R I N H (State Bar N o . 307879)[email protected] H O M A S W H I T E L A W & K O L E G R A F F L L P18101 V o n K arm an Avenue, Suite 230 Irvine, California 92612-7132 Telephone: (9 4 9 )6 7 9 -6 4 0 0Facsim ile: (9 4 9 )6 7 9 -6 4 0 5
Attorneys for Defendant R O B E R T J. H E R B E R T
S U P E R I O R C O U R T O F T H E S T A T E O F C A L I F O R N I A
C O U N T Y O F O R A N G E , C E N T R A L J U S T I C E C E N T E R
M A S E C O S .A .,
Plaintiff,
vs.
R O B E R T J. H E R B E R T , an individual; and D O E S 1 through 10,
Defendants.
C A S E N O . 3 0 -2 0 1 6 -0 0 8 7 2 0 1 9 -C U -B C -C JC
N O T I C E O F R U L I N G G R A N T I N G D E F E N D A N T R O B E R T J . H E R B E R T 'S M O T I O N T O C O M P E L D E P O S I T I O N O F P E R S O N M O S T K N O W L E D G E A B L E O F P L A I N T I F F M A S E C O S .A .
Date: February 27, 2017T im e : 10:30 a.m.C rtrm ,: C 26
A S S I G N E D F O R A L L P U R P O S E S T O : H onorable G re go ry H . Lew is Departm ent C 26
A c tio n Filed: August 29, 2016Tria l Date: A p ril 24, 2017
!83466
N O TIC E OF R U L IN G G RA N TIN G D E FE N D A N T R O B E R T J. H E R B E R T S M O TIO N TO C O M PEL DEPO SITIO N OF PERSO N M O ST K N O W LE D G E A B L E OF PL A IN TIFF M A SECO S.A.
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H a v in g considered the M otion o f Defendant Robert J. Herbert ( “ Defendant” or “ Herbert”)
for an O rd e r C om pelling the Deposition o f the Person M ost Knowledgeable o f Plaintiff Maseco
S .A . ( “ M aseco” ), including the Opposition, R eply, all Declarations in support thereof, and
argument o f counsel, the C ourt rules as follow s: Defendant’s motion is G R A N T E D in part, and
D E N I E D in part.
T h e m otion o f Defendant Herbert for an order com pelling the deposition of the Person
M ost Know ledgeable (P M K ) o f Plaintiff Maseco is granted. Plaintiff is to designate a P M K
witness and produce h im or her for deposition at the office o f Thom as W hitelaw & K ole gra ff L L P
in Irvine, California on a m utually convenient date within 45 days o f the C ourt’ s February 27,
2017 order, w ith the P M K deposition to be completed on or before A p ril 10, 2017. Defendant’s
request for a m onetary sanction is denied.
T h e discovery cu t-o ff date o f M arch 27, 2017 is hereby w aived by the Court and all
counsel as it relates to this Court-ordered P M K deposition.
D A T E D : February 27, 2017 T H O M A S W H I T E L A W & K O L E G R A F F L L P
B y : _________ /s/Joseph E. ThomasJ O S E P H E . T H O M A S J A M E S M . W H I T E L A W W I L L I A M S. S A N D E R S O N C H R I S T I N A L . T R I N HAttorneys for Defendant R O B E R T J. H E R B E R T
] 83466 |
N O TIC E O F R U L IN G G R A N TIN G D E FE N D A N T RO B ER T J. 1 IFRBERT'S M O TiO N TO COM PEL D EPO SITIO N OF PE R S O N M O ST K N O W LED G EA B LE OF PLA IN TIFF M A SE C O S A .
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P R O O F O F S E R V I C E
S T A T E O F C A L I F O R N I A , C O U N T Y O F O R A N G E
A t the time o f service, I was over 18 years o f age and not a p a rty to this action. I am employed in the C ounty o f Orange, State o f California. M y business address is 18101 V o n Karm an A ve n u e, Suite 230, Irvine, C A 92612-7132.
O n February 27, 2 0 1 7 ,1 served true copies of the fo llow ing docum ent(s) described as N O T I C E O F R U L I N G G R A N T I N G D E F E N D A N T R O B E R T J . H E R B E R T ’S M O T I O N T O C O M P E L D E P O S I T I O N O F P E R S O N M O S T K N O W L E D G E A B L E O F P L A I N T I F F M A S E C O S .A . on the interested parties in this action as follows:
P hillip Baker Attorneys for Plaintiff Maseco S .A .B A K E R , K E E N E R & N A H R A , L L P 633 W est 5th Street, Suite 4900 L o s Angeles, C A 90071 (213) 241-0900 (Te lephone)(213) 241-0990 (F a x ) pb a her (a), b kn I aw vers. com
James F . M cG e e Attorneys for Intervener G ary E . Prim mM cG e e & Associates520 N e w p ort Center D rive , Suite 1400N e w p ort Beach, C A 92660(9 4 9) 640-0500 (Telephone)jimmcgee(a),m csee-law. com
B Y E - M A I L O R E L E C T R O N I C T R A N S M I S S I O N : I caused a copy o f the docum ent(s) to be sent from e-m ail address jdonovan@ tw tlaw .com to the persons at the e-mail addresses listed in the Service List. I did not receive, w ithin a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.
B Y M A I L : I enclosed the docum ent(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and m ailing, fo llow in g our ordinary business practices. I am readily familiar w ith Thom as W hitelaw L L P ’s practice for collecting and processing correspondence for m ailing. O n the same day that the correspondence is placed for collection and m ailing, it is deposited in the ordinary course o f business w ith the United States Postal Service, in a sealed envelope w ith postage fully prepaid.
I declare under penalty o f perjury under the laws o f the State of California that the foregoing is true and correct.
Executed on February 27, 2017, at Irvine, California.
/s/ Jane Donovan Jane D onovan
183466 2
N O TIC E OF RULING GRA NTING D E FEN D A N T R O B ER T J. HER B ER T'S M O TIO N TO COM PEL D EPO SITIO N OF PER SO N M O ST K N O W LED G EA B LE OF PLA IN TIFF M A SE C O S.A.
EXHIBIT
SU P ER IO R C O U R T O F C ALIFO R N IA ,C O U N TY O F O R A N G E
C E N TR A L JU S T IC E C E N TE R
M IN UTE O R D ER
D A T E : 0 4 /1 0 /2 0 1 7 T IM E : 1 0 :3 0 :0 0 A M D E P T : C 2 6
J U D IC IA L O F F IC E R P R E S ID IN G : G re g o ry H . L e w is C L E R K : S U S IE G A R C IA R E P O R T E R /E R M : N o n e B A IL IF F /C O U R T A T T E N D A N T : T r in i t y P a la b r ic a
C A S E N O : 30-2016-00872019 -C U -B C -C JC C A S E I N IT . D A T E : 0 8 /2 9 /2 0 1 6 C A S E T IT L E : Maseco S.A. vs. HerbertC A S E C A T E G O R Y : C iv i l - U n l im ite d C A S E T Y P E : B re a c h o f C o n t r a c t /W a r r a n ty
E V E N T ID /D O C U M E N T ID : 7 2 5 5 8 9 5 5E V E N T TY P E : M o t io n fo r J u d g m e n t o n U n d e r ta k in g M O V IN G P A R T Y : R o b e r t J . H e r b e r tC A U S A L D O C U M E N T /D A T E F IL E D : M o t io n - O th e r M O T IO N F O R O R D E R R E Q U IR IN G P L A IN T IF F T O F IL E A N U N D E R T A K IN G T O S E C U R E A N A W A R D O F C O S T S A N D A T T O R N E Y 'S F E E S , 0 3 /1 7 /2 0 1 7
A P P E A R A N C E SJ o s e p h T h o m a s , f r o m T h o m a s W h ite la w & K o le g r a f f L L P , p r e s e n t fo r D e fe n d a n t ( s ) te le p h o n ic a l ly .J a m e s M c G e e , f ro m M c G e e & A s s o c ia te s , p r e s e n t fo r In te r v e n o r (s ) te le p h o n ic a l ly .
T e n ta t iv e R u lin g p o s te d o n th e i n t e r n e t .
in o p e n c o u r t. T h e te n ta t iv e ru lin g w a s a d o p te d a s th e f in a l o rd e r o f th e C o u r t a s fo l lo w s :
Motion: Judgm ent on Undertaking. M o v in g P a r ty D e fe n d a n t R o b e r t J . H e rb e r t . R e s p o n d in g P a r ty M a s e c o , S .A .
The Motion for Order Requiring Plaintiff to File an Undertaking is G R A N TE D . On or before April 20, 2017, Plaintiff shall post an undertaking in the sum of $150,000.00.
T h e M o t io n is t im e ly . " C o d e C iv . P ro c . , § 1 0 3 0 . . . d o e s n o t s p e c i fy th e t im e in w h ic h a r e q u e s t fo r c o s t b o n d m u s t b e f i le d , n o r d o e s it a u th o r iz e th e tr ia l ju d g e to re je c t th e d e fe n d a n t 's r e q u e s t a s u n t im e ly . " Heffron v. Los Angeles Transit Lines ( 1 9 5 9 ) 1 7 0 C a i. A p p . 2 d 7 0 9 , 7 1 4 .
" [D e fe n d a n t ] w e r e n o t r e q u ire d to s h o w th a t th e re w a s n o p o s s ib i l i t y th a t [P la in t i f f ] c o u ld w in a t t r ia l, b u t o n ly th a t it w a s reasonably possible th a t [D e fe n d a n t ] w o u ld w in . (C o d e C iv . P ro c . , § 1 0 3 0 , s u b d . ( b ) . ) " Baltayan v. Estate of Getemyan ( 2 0 1 1 ) 9 0 C a l. A p p . 4 th 1 4 2 7 , 1 4 3 2 . ( E m p h a s is o r ig in a l) . D e fe n d a n t h a s m e t th is s ta n d a rd .
DATE: 04 /10 /2017DEPT: C26
M IN U T E O R D E R Page 1C a lend ar No.
C A S E T IT L E : M a s e c o S .A . v s . H e r b e r t C A S E N O : 30-2016-00872019-CU-BC-CJC
In th is c a s e , e i th e r P la in t i f f lo a n e d th e $ 1 0 ,0 0 0 ,0 0 0 .0 0 to D e fe n d a n t o r it d id n o t . I f th e c o u r t fo u n d th e lo a n n e v e r o c c u r re d , a t to rn e y fe e s u n d e r Civ. Proc. Code § 1 2 8 .7 w o u ld b e c o n c e iv a b le .In th is s e c o n d m o t io n , P la in t i f f d is c lo s e d th a t th e c u r r e n t ly b i l le d a t to r n e y fe e s a re $ 1 2 0 ,5 8 6 .2 5 a n d th e c o s ts a re $ 6 ,8 2 4 .1 9 . It is v e ry c o n s e r v a t iv e to e s t im a te th a t o n ly a n a d d i t io n a l $ 2 4 ,0 0 0 w o u ld b e in c u r re d in th e fu tu re . T h e re fo re , a b o n d o f $ 1 5 0 ,0 0 0 is re a s o n a b le .
DATE: 04 /10 /2017DEPT: C26
M IN U T E O R D E R Page 2C a lend ar No.
EXHIBIT
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f ELECTRONICALLY RECEIVEDSuperior Court of CallfcmSa,
County of 0Rings 04/27/2017 at 02:44:42 PH
Oeric of the Superior Court By eOerit; Deputy Ckrk
M c G E E & A S S O C I A T E S
J A M E S F . M c G E E , E S Q ., S B N 93288 520 N e w p o rt Center D rive , Suite 1400 N e w p ort Beach, California 92660 (9 4 9 ) 640-0500
Attorneys for Intervenor G A R Y E . P R IM M , Trustee o f T h e G a ry E . P rim m F a m ily Tru s t
S U P E R I O R C O U R T O F T H E S T A T E O F C A L I F O R N I A
C O U N T Y O F O R A N G E , C E N T R A L J U S T I C E C E N T E R
M A S E C O S .A ., Case N o .: 30-2016-00872019 -C U -B C -C J C
Plaintiff,
vs.
O R D E R O F D I S M I S S A L W I T H P R E J U D I C E
R O B E R T J. H E R B E R T , an individual; and D O E S 1 through 10,
Assigned to H o n . G regory H . Lew is Department: C 2 6
Defendant.
G A R Y E . P R IM M , Trustee o f T h e G a ry E . P rim m F a m ily Tru s t (u/d/t A p ril 1 0 ,1 9 8 4 ),
T ria l: M arch 2 4 ,2 0 1 7 T im e : 10:30 a.m. Dept.: C 2 6
Intervenor.
T h e case was called for trial in Departm ent C 26 on M arch 2 4 ,2 0 1 7 , at 8:30 a.m., the honorable
G re g o ry H . Le w is presiding. A ttorne y Ph illip A . Baker o f Baker, Keener & Nahra, L L P appeared as
counsel o f record for Plaintiff, how ever, the Plaintiff failed to appear. Thom as W hitelaw o f W hitelaw &
K o le g ra ff L L P appeared as counsel o f record for Defendant Robert J. Herbert, w ho was present in court.
James M c G e e o f M c G e e & Associates appeared'as counsel o f record for Intervenor, G a ry E . Prim m
F a m ily T ru s t (u/d/t A p r il 10, 1984) and G a ry E . P rim m , the trustee was present in court.
P h illip A . Baker, counsel for P la intiff informed the Court that his client was not present and that
he was unable to proceed. Th e C ourt inquired o f P la in tiffs counsel, P hillip Baker, i f it was accurate that
the P la in tiff failed to attend the C ourt ordered deposition; failed to attend the M andatory Settlement
FILEDSUPERIOR COURT OP CALIFORNIA
emJ*TY OF ORANOf".•SHCf CFttTSR
m i o i w aDAVID a YAMASAKI, Cterit of th* Court
BVV JD EP U TY
ORDER OF DISMISSAL WITH PREJUDICE
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Conference; and failed to post the Court ordered undertaking. M r. Baker confirmed to the Court that the
P laintiff had failed to obey each o f the three C ourt Orders. O n the basis that the Plaintiff had disobeyed
each o f the aforementioned court orders and m oreover failed to appear for trial, the Court ordered the
P la in tiffs Com plaint to be stricken and the entire action dismissed w ith prejudice. Counsel for the
Defendant and counsel for the Intervenor requested the C ourt to schedule a m otion hearing for the award
o f attorney's fees and costs. Th e Court granted the request.
G O O D C A U S E A P P E A R IN G , it is hereby ordered:
T h e Com plaint is stricken and the entire action is dismissed w ith prejudice. A m otion for
attorney's fees and costs is scheduled for June 5 ,2 0 1 7 at 10:3 oVm. in Department C 26. M o v in g papers
shall be filed and served b y M a y 8, 2017; opposition shall be filqd and served b y ay 2 2 ,2 0 1 7 ; and a
reply, i f any, shall be filed and served b y M a y 24, 2017.
D A T E : 5 - mj ;U0GE GREGORY H. LEWIS
Judge o f the Superior Court
_______________ z2_z______________________ORDER OF DISMISSAL WITH PREJUDICE
P O S -0 3 0ATTORNEY OR PARTY WTHOLFT ATTORNEY (Name, state Bar number, and address):
James F. McGee, Esq., SBN: 93288 McGee & Associates 5 2 0 Newport Center Drive, Suite 1 4 0 0
Newport Beach, CA 9 2 6 6 0
TELEPHONE NO.: ( 9 4 9 ) 6 4 0 - 0 5 0 0 FAX NO. fOp«wa<>:(949) 6 4 0 - 4 0 1 5
[email protected] ATTORNEYFORfNamoj-Intervenor, Gary E. Primm
FOR COURT use ONLY
SUPERIOR C O U R T OF CALIFORNIA, C O U N TY O F Orange s tre e t address;700 Civic Center Drive West MA1UNG ADDRESS: Same
c r y and zip code: Santa Ana 92701 branch name Central Justice Center
PETITIONER/PLAINTlFF:MaseCO S.A.
RESPONDENi/DEFENDANT:Robert J. H e rb e rt
PROOF OF SERVICE BY FIRST-CLASS MAIL— CIVILCASE NUMBER:
30-2016-00872019-CU-B C-C J C
(D o not use this Proof of Service to show service o f a Sum m ons and Com plaint)1. t am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing
took place.
2. My residence or business address is:
520 Newport Center Drive, Suite 1400 Newport Beach, CA 92660
3. On (date):May 2,2017 I mailed from (city and state): Newport Beach, CA the following documents (specify):ORDER OF DISMISSAL WITH PREJUDICE
□ The documents are listed in the Attachment to Proof of Service by First-Class Maii— Civil (Documents Served)(form POS-030(D)).
4. 1 served the documents by enclosing them in an envelope and (check one):a. I I depositing the sealed envelope with the United States Postal Service with the postage fully prepaid.b. \~S I placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this
business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage folly prepaid.
5. The envelope was addressed and mailed as follows:a. Name of person served:
b. Address of person served:
L / J The name and address of each person to whom I mailed the documents is listed in the Attachment to Proof of Service by First-Class Mail— Civil (Persons Served) (POS-030(P)).
I declare under penalty of perjury under the laws of the State of California that the fpjeg^ing is true and correct
Date: May 2,2017
C h risto p h e r V n _________________________________ _ _(TYPE OR PR! NT NAME O F PERSON COMP LET! NG THIS FORM) / (S IG^IaTURE OF PERSON COMPLETING THiS FORM)
Jucfidsl Council of CaNtomla P R O O F O F S E R V IC E B Y F IR S T -C L A S S M A IL — C IV IL Coda of CM! Procedure, §§ 1013,1013aPOS-0301New January 1,2005] (P rO O f O f S e r V (C e ) www.courtjnfO.ca.gcv
POS-03O(P)
short title: Maseco S.A. v. Robert J. Herbert CASE NUMBER:
30-2016-00872019-CU-BC-C JC
ATTACHMENT TO PROOF OF SERVICE BY FIRST-CLASS MAIL— CIVIL (PERSONS SERVED)
(Th is Attachm ent is for use with form P O S -0 3 0 )
NAME AN D AD DR ESS O F EACH PERSON SERVED B Y MAIL:
N am e of Person Served A ddress (num ber, street citv. and zip code)
Phillip A. Baker, Esq.Baker, Keener & Nahra, LLP
633 West Fifth Street, Suite 4900 Los Angeles, CA 90071
A T T A C H M E N T T O P R O O F O F S E R V IC E B Y F IR S T -C L A S S M A IL— C IV IL Pane 1 of 1POS-03O(P) [New January 1. 2005] {P E R S O N S S E R V E D )
(P ro o f of S e rvice )
EXHIBIT
Visit Us on oar Website: www.ctic.com
CHICAGO TITLE COMPANY
ISSUING OFFICE: 16969 Von Karman Ave Suite 150, Irvine, CA 92606
FOR SETTLEMENT INQUIRIES, CONTACT:Blue Water Escrow
1400 Newport Center Dr., Suite 125 • Newport Beach, CA 92660 (949)478-7900 * FAX (949)478-7911
P RELIM INARY R E P O R T
PROPERTY ADDRESS(ES): 618 Via Lido Nord, Newport Beach, C A
EFFECTIVE DATE: February 14, 2017 at 12:00 AM
T h e form of policy or policies of title insurance contemplated by this report is:
C L T A Standard Coverage Policy 1990 (0 4 -0 8 -1 4 )
1. T h e estate or interest in the Land hereinafter described or referred to covered by this Report is:
A F E E
2. Title to said estate or interest at the date hereof is vested in:
Gary E. Primm, Trustee of The Gary E. Primm Family Trust (u/d/t April 10,1984)
3. T h e Land referred to in this Report is described as follows:
S E E E X H IB IT "A" A T T A C H E D H E R E T O A N D M A D E A P A R T H E R E O F
Update: 4
Phone No.: (949)263-6961 Fax No.: (9 49)263-0872 Title No.: 586015 0 9 5 2 5 -JF A
Title Officer: Jo hn F Allen Email: A lle n Jo @ ctt.co m
Escrow Officer: Jason Miller Email: jason@ bluew aterescrow .com
Phone No.: (949)478-7900 Fax No.: (949)478-7912
Escrow No.: 15 -4 4 5 7 -JM
CLTA Preliminary Report Form - Modified (11/17/2006)2
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EXHIBIT "A"L e g a l D e s c r ip tio n
F o rA P N / P a rc e l ID (s ): 4 2 3-231-05______________________________________________________________________________
T H E L A N D R E F E R R E D T O H E R E IN B E L O W IS S IT U A T E D IN T H E C I T Y O F N E W P O R T B E A C H , C O U N T Y O F O R A N G E , S T A T E O F C A L IF O R N IA A N D IS D E S C R IB E D A S F O L L O W S :
L O T S 65 A N D 66 A N D T H E N O R T H W E S T E R L Y H A L F O F L O T 64, T R A C T N O . 907, IN T H E C I T Y O F N E W P O R T B E A C H , C O U N T Y O F O R A N G E , S T A T E O F C A L IF O R N IA , A S P E R M A P R E C O R D E D IN B O O K 28 P A G E S 25 A N D 26 O F M IS C E L L A N E O U S M A P S , IN T H E C I T Y O F N E W P O R T B E A C H , C O U N T Y O F O R A N G E , S T A T E O F C A L IF O R N IA .
CLTA Preliminary Report Form - Modified (11/17/2006)3
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Title No.: 58601509525-JFAUpdate: 4
AT THE DATE HEREOF, EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS:
1. Property taxes, which are a lien not yet due and payable, including any assessm ents collected with taxes to be levied for the fiscal year 2017-2018.
2. Property taxes, including any personal property taxes and any assessm ents collected with taxes, are as follows:
T a x Identification No.: 4 2 3-231-05Fiscal Year: 2016-20171st Installment: $56,414.18 paid.2nd Installment: $56,414.18, O penPenalty and Cost: $5,664.41 {D u e after April 10)C o d e Area: 07-001
3. T h e lien of supplemental or escaped assessm ents of property taxes, if any, m ade pursuant to the provisions of Chapter 3.5 (co m m encing with Section 75) or Part 2, Chapter 3, Articles 3 and 4, respectively, of the R evenue and Taxation C o d e of the State of California as a result of the transfer of title to the vestee nam ed in Schedule A or as a result of changes in ownership or new construction occurring prior to Date of Policy.
4. W a te r rights, claims or title to water, whether or not disclosed by the public records.
5. A n y rights in favor of the public which m ay exist on said land for access, parking, beach or recreational uses, if said land or portions thereof w ere at any time used by the public for such purposes.
6. A n y adverse claim based upon the assertion that som e portion of said land has been created by artificial m eans, or is land that has accreted to such portion so created.
7. A n y adverse claim based upon the assertion that:
a. Said Land or any part thereof is now or at any time has been below the highest of the highwaterm arks of Newport Bay in the event the boundary of said Bay has been artificially raised or is now or
at any time has been below the high watermark, if said Bay is in its natural state.
b. S o m e portion of said Land has been created by artificial m eans or has accreted to such portion so created.
c. S o m e portion of said Land has been brought within the boundaries thereof by an avulsive m ovem ent of Newport Bay, or has been formed by accretion to any such portion.
8. Rights and easem ents for navigation and fishery which m ay exist over that portion of said Land lying beneath the waters of Newport Bay.
CLTA Preliminary Report Form - Modified (11/17/2006)4
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Title No.: 58601509525-JFAUpdate: 4
E X C E P T IO N S(continued)
9. Easem ent(s) for the purpose(s) shown below and rights incidental thereto as delineated or as offered for dedication, on the m ap of said tract/plat;
Purpose:Affects:
Public utilities as to the City of Newport BeachT h e Southwesterly 4 feet as shown on the m ap of Tra ct 907
10. Covenants, conditions and restrictions but omitting any covenants or restrictions, if any, including but not limited to those based upon race, color, religion, sex, sexual orientation, familial status, marital status, disability, handicap, national origin, ancestry, or source of income, as set forth in applicable state or federal laws, except to the extent that said covenant or restriction is permitted by applicable law, as set forth in the docum ent
Said covenants, conditions and restrictions provide that a violation thereof shall not defeat the lien of any mortgage or trust deed m ade in good faith and for value.
All rights of enforcem ent approval, maintenance, inspection, supervision, control and operation created, imposed, set forth and provided in said declaration were conveyed to Lido Isle Com m unity Association, a corporation, by deed recorded D ecem ber 10, 1928, in Book 218, Page 475, of Official Records.
All reversionary rights w ere conveyed to Lid Isle Com m unity Association, by deed recorded D ecem ber 3 ,1 9 3 8 , in Book 969, Page 427, of Official Records.
Modification(s) of said covenants, conditions and restrictions
Recording Date: N ovem ber 2 4 ,1 9 8 7Recording No.: 87-695472, Official Records.
Modification(s) of said covenants, conditions and restrictions
Recording Date: April 15, 2002Recording No.: 20020314486, Official Records.
11. A n instrument entitled "Encroachm ent A greem ent (E P N 2 0 0 8 -0 3 7 1 )" recorded N ovem ber 18, 2008 as Instrument/File No. 2008000537772 of Official Records.
Recording No: Book 228, Page 1, Official Records.
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Title No.: 58601509525-JFAUpdate: 4
E X C E P T IO N S(continued)
12. A deed of trust to secure an indebtedness in the amount shown below,
Am ount:Dated:Trustor/Grantor: Trustee: Beneficiary: Loan No: Recording Date: Recording No.:
$5,000,000.00 October 14, 2014G a ry E . Prim m , Trustee of T h e G a ry E . Prim m Fam ily Tru st (u/d/t April 10, 1984)Chicago Title C o m p a n yD B Private W ealth M ortgage LtdNot Show nOctober 16, 20142014000419155, Official Records.
T h e Deed of Tru st set forth above is purported to be a "Credit Line" Deed of Trust. U n d e r California Civil Cod e Section 2943.1 it is a requirement that the Trustor/Grantor of said Deed of Tru st either immediately provide the beneficiary with the "Borrower's instruction to Suspend and Close Equity Line of Credit" or provide a satisfactory subordination of this Deed of Tru st to the proposed Deed of T ru st to be recorded at closing.
Said Deed of trust contains erroneous legal description
13. A n y invalidity or defect in the title of the vestees in the event that the trust referred to herein is invalid or fails togrant sufficient powers to the trustee(s) or in the event there is a lack of com pliance with the term s and provisions of the trust instrument.
If title is to be insured in the trustee(s) of a trust, (or if their act is to be insured), this C o m p a n y will require a Tru st Certification pursuant to California Probate C o d e Section 18100.5.
T h e C o m p a n y reserves the right to add additional items or make further requirements after review of the requested documentation.
E N D O F E X C E P T IO N S
CLTA Preliminary Report Form - Modified (11/17/2006) Printed: 02.22.17 @ 08:37 AMCA-CT-FWKO-02180.055860-SPS-1-17-586015095256
Title No.: 58601509525-JFAUpdate: 4
N O T E S
N ote 1. In order to complete this report, the C o m p a n y requires a Statem ent of Information to be completed by the following party(s),
Party(s): All Parties
T h e C o m p a n y reserves the right to add additional items or make further requirements after review of the requested Statem ent of Information.
N O T E : T h e Statem ent of Information is necessary to complete the search and examination of title under this order. A n y title search includes matters that are indexed by nam e only, and having a completed Statem ent of information assists the C o m p a n y in the elimination of certain matters which appear to involve the parties but in fact affect another party with the sam e or similar nam e. Be assured that the Statem ent of Information is essential and will be kept strictly confidential to this file.
N o te 2. Note: Th e re are N O conveyances affecting said Land recorded within 24 m onths of the date of this report.
N o te 3. N O T E : W h e n this title order closes and if the C o m p a n y is handling the loan proceeds through a sub-escrow, all title charges and expenses normally billed will be deducted from those loan proceeds. Title charges and expenses would include Title Prem ium s, any T a x or Bond advances, D ocum entary Transfer Ta x , Recording Fees, etc.
N o te 4. Note: N one of the items shown in this report will cause the C o m p a n y to decline to attach C L T A Endorsem ent Form 100 to an Extended Coverage Loan Policy, when issued.
N o te 5. Note: T h e C o m p a n y is not aware of any matters which would cause it to decline to attach C L T A Endorsem ent Form 116 indicating that there is located on said Land a Single Fam ily Residence, known as 618 Via Lido N ord, City of Newport Beach, State of California, to an Extended Coverage Loan Policy.
N o te 6. N O T E : T h e policy of title insurance will include an arbitration provision. T h e C o m p a n y or the insured m ay dem and arbitration. Arbitrable matters m ay include, but are not limited to, any controversy or claim between the C o m p a n y and the insured arising out of or relating to this policy, any service of the C o m p a n y in connection with its issuance or the breach of a policy provision or other obligation. Please ask your escrow or title officer for asam ple copy of the policy to be issued if you wish to review the arbitration provisions and any other provisions pertaining to your Title Insurance coverage.
CLTA Preliminary Report Form - Modified (11/17/2006)7
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N O T E S(continued)
N o te 7. If a county recorder, title insurance com pany, escrow com pany, real estate agent or association provides acopy of the declaration, governing docum ent or deed to any person, California law requires that the docum ent provided shall include a statement regarding any unlawful restrictions. Said statement is to be in at least 14-point bold faced typed and m ay be stam ped on the first page of any docum ent provided or included as a cover page attached to the requested docum ent. Should a party to this transaction request a copy of any docum ent reported herein that fits this category, the statement is to be included in the m anner described.
Title No.: 58601509525-JFAUpdate: 4
N o te 8. A n y docum ents being executed in conjunction with this transaction must be signed in the presence of anauthorized C o m p a n y em ployee, an authorized em ployee of an agent, an authorized em ployee of the insured lender, or by using Bancserv or other approved third-party service, if the above requirements cannot be met, please call the com pany at the num ber provided in this report.
N o te 9. A Preliminary Ch a n ge of O w nership form is required upon a change in ownership of the Land. Section 480 of the Revenue and Taxation Co d e of the State of California requires that a grantee of real property complete a Prelim inary C h a n ge of O w nership statement, which is to be filed at the time that a grant deed is recorded. In the event that the statement is not completed and presented at the time of the recording of the deed, the County R ecorder will assess the grantee an additional charge to record the deed. In addition to the additional charge at the time of recording, the County A ssesso r m ay assess additional fees and penalties for failure to file the O w nership Statem ent within the required time.
N o te 10. T h e C o m p a n y will require either (a ) a complete copy of the trust agreem ent and any am endm ents theretocertified by the trustee(s) to be a true and complete copy with respect to the hereinafter nam ed trust, or (b ) a Certification, pursuant to California Probate Co d e Section 18100.5, executed by all of the current trustee(s) of the hereinafter nam ed trust, a form of which is attached.
N a m e of Trust: T h e G a ry E . Prim m Fam ily Tru st
E N D O F N O T E S
CLTA Preliminary Report Form - Modified (11/17/2006)8 Printed: 02.22.17 @ 08:37 AM
CA-CT-FWKO-02180.055860-SPS-1-17-58601509525
FIDELITY NATIONAL FINANCIAL, INC. PRIVACY NOTICE
Effective: April 1,2016
Order No.: 58601509525-PR
At Fidelity National Financial, Inc. and its majority-owned subsidiary companies (collectively, "FNF", "our" or "we"), we value the privacy of our customers. This Privacy Notice explains how we collect, use, and protect your information and explains the choices you have regarding that information. A summary of our privacy practices is below. We also encourage you to read the complete Privacy Notice following the summary.
Tvoes of Information Collected. You mav provide us with certain personal information, like your contact information, social security number (SSN), driver’s license, other government ID numbers, and/or financial information. We may also receive information from your Internet browser, computer and/or mobile device.
How Information is Collected. We mav collect personal information directly from you from applications, forms, or communications we receive from you, or from other sources on your behalf, in connection with our provision of products or services to you. We may also collect browsing information from your Internet browser, computer, mobile device or similar equipment. This browsing information is generic and reveals nothing personal about the user.
Use of Your Information. We mav use vour information to provide products and services to you (or someone on your behalf), to improve our products and services, and to communicate with you about our products and services. We do not give or sell your personal information to parties outside of FNF for their use to market their products or services to you.
Security Of Your Information. We utilize a combination of security technologies, procedures and safeguards to help protect your information from unauthorized access, use and/or disclosure. We communicate to our employees about the need to protect personal information.
Choices With Your Information. Your decision to submit When We Share Information. We mav disclose vourpersonal information is entirely up to you. You can opt-out of certain disclosures or use of your information or choose to not provide any personal information to us.
information to third parties providing you products and services on our behalf, law enforcement agencies or governmental authorities, as required by law, and to parties with whom you authorize us to share your information.
Information From Children. We do not knowinqlv collect information from children under the age of thirteen (13), and our websites are not intended to attract children.
Privacv Outside the Website. We are not responsible for the privacy practices of third parties, even if our website links to those parties' websites.
A ccess and Correction. If you desire to see the Do Not Track D isclosures. We do not recoqnize "do notinformation collected about you and/or correct any inaccuracies, please contact us in the manner specified in this Privacy Notice.
track" requests from Internet browsers and similar devices.
The California Online Privacv Protection Act. Certain FNF websites collect information on behalf of mortgage loan servicers. The mortgage loan servicer is responsible for taking action or making changes to any consumer information submitted through those websites.
International Use. Bv providing us with vour information, you consent to the transfer, processing and storage of such information outside your country of residence, as well as the fact that we will handle such information consistent with this Privacy Notice.
Your Consent To This Privacy Notice. Bv submittina Contact FNF. If vou have questions or wish to contact usinformation to us and using our websites, you are accepting and agreeing to the terms of this Privacy Notice.
regarding this Privacy Notice, please use the contact information provided at the end of this Privacy Notice.
Privacy StatementSCA0002565_CTLA,doc / Updated: 08.12.16
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FIDELITY NATIONAL FINANCIAL, INC. PRIVACY NOTICE
F N F respects and is committed to protecting your privacy. W e pledge to take reasonable steps to protect your Personal Information {as defined herein) and to ensure your information is used in compliance with this Privacy Notice.
This Privacy Notice is only in effect for information collected and/or owned by or on behalf of FN F, including collection through any FN F website or online services offered by FN F (collectively, the "Website"), as well as any information collected offline (e.g., paper documents). The provision of this Privacy Notice to you does not create any express or implied relationship, nor create any express or implied duty or other obligation, between FN F and you.
Types of Information CollectedW e may collect two (2) types of information: Personal Information and Browsing Information.
Personal Information. Th e types of personal information FNF collects may include, but are not limited to:
• contact information (e.g., name, address, phone number, email address):
• social security number (S S N ), driver’s license, and other government ID numbers; and
• financial account or loan information.
Browsing Information. Th e types of browsing information FN F collects may include, but are not limited to:
• Internet Protocol (or IP) address or device iD/UDID, protocoland sequence information;
• browser language;
• browser type;
• domain name system requests;
• browsing history;
• number of clicks;
• hypertext transfer protocol headers; and
• application client and server banners.
H ow Information is CollectedIn the course of our business, we may collect Personal Information about you from the following sources:
• applications or other forms we receive from you or your authorized representative, whether electronic or paper;
• communications to us from you or others;
• information about your transactions with, or servicesperformed by, us, our affiliates or others; and
• information from consumer or other reporting agencies and public records that we either obtain directly from those entities, or from our affiliates or others.
W e may collect Browsing Information from you as follows:
• Browser Log Files. O ur servers automatically log, collect and record certain Browsing Information about each visitor to the Website. Th e Browsing Information includes only generic information and reveals nothing personal about the user.
• Cookies. From time to time, F N F may send a "cookie" to your computer when you visit the Website. A cookie is a small piece of data that is sent to your Internet browser from a web server and stored on your computer’s hard drive. When you visit the Website again, the cookie allows the Website to recognize your computer, with the goal of providing an optimized user experience. Cookies may store userpreferences and other information. You can choose not toaccept cookies by changing the settings of your Internet browser. If you choose not to accept cookies, then somefunctions of the Website may not work as intended.
Use of Collected InformationInformation collected by FN F is used for three (3) main purposes:
• To provide products and services to you, or to one or more third party service providers who are performing services on your behalf or in connection with a transaction involving you;
• To improve our products and services; and
• To communicate with you and to inform you about F N F ’sproducts and services.
W hen W e Share InformationW e may share your Personal Information (excluding information we receive from consumer or other credit reporting agencies) and Browsing Information with certain individuals and companies, as permitted by law, without first obtaining your authorization. Such disdosures may include, without limitation, the following:
• to agents, representatives, or others to provide you with services or products you have requested, and to enable us to detect or prevent criminal activity, fraud, or material misrepresentation or nondisclosure;
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Privacy StatementSCA0002565_CTLA.doc / Updated: 08.12.16
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W e may disclose Personal Information and/or Browsing Information when required by law or in the good-faith belief that such disclosure is necessary to:
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• protect the rights, property or personal safety of FN F, its users or the public.
W e make efforts to ensure third party contractors and service providers who provide services or perform functions on our behalf protect your information. W e limit use of your information to the purposes for which the information was provided. W e do not give or sell your information to third parties for their own direct marketing use.
W e reserve the right to transfer your Personal Information, Browsing Information, as well as any other information, in connection with the sale or other disposition of all or part of the FN F business and/or assets, or in the event of our bankruptcy,reorganization, insolvency, receivership or an assignment for thebenefit of creditors. You expressly agree and consent to the use and/or transfer of this information in connection with any of the above described proceedings. W e cannot and wiil not be responsible for any breach of security by any third party or for any actions of any third party that receives any of the information that is disclosed to us.
C hoice s W ith Y o u r InformationWhether you submit your information to FN F is entirely up to you. If you decide not to submit your information, FN F may not be able to provide certain products or services to you. You may choose to prevent F N F from using your information under certain circumstances ("opt out”). You may opt out of receiving communications from us about our products and/or services.
Security A nd Retention O f InformationF N F is committed to protecting the information you share with us and utilizes a combination of security technologies, procedures and safeguards to help protect it from unauthorized access, use and/or disclosure. F N F trains its employees on privacy practices and on F N F ’s privacy and information security policies. FNF works hard to retain information related to you only as long as reasonably necessary for business and/or legal purposes.
Inform ation From ChildrenThe Website is meant for adults. Th e Website is not intended or designed to attract children under the age of thirteen (13). W e do not collect Personal Information from any person that we know to be under the age of thirteen (13) without permission from a parent or guardian.
Access and CorrectionTo access your Personal Information in the possession of FNF and correct inaccuracies, please contact us by email at [email protected] or by mail at:
Fidelity National Financial, Inc.601 Riverside Avenue Jacksonville, Florida 32204 Attn: Chief Privacy Officer
Y o u r C onsen t T o Th is Privacy NoticeBy submitting Persona! Information and/or Browsing Information to FNF, you consent to the collection and use of information by FN F in compliance with this Privacy Notice. W e reserve the right to make changes to this Privacy Notice. If we change this Privacy Notice, we will post the revised version on the Website.
Privacy StatementSCA0002565_CTLA.doc / Updated: 08.12.16
Privacy O utside the W ebsiteThe Website may contain links to other websites, including links to websites of third party service providers. FN F is not and cannot be responsible for the privacy practices or the content of any of those other websites.
International UsersBecause F N F ’s headquarters is located in the United States, we may transfer your Personal Information and/or Browsing Information to the United States. By using our website and providing us with your Personal information and/or Browsing Information, you understand and consent to the transfer, processing and storage of such information outside your country of residence, as well as the fact that we will handle such information consistent with this Privacy Notice.
Do Not Track DisclosuresCurrently, our policy is that we do not recognize "do not track" requests from Internet browsers and similar devices.
Th e California Online Privacy Protection A ctFor some websites which FN F or one of its companies owns, such as the Customer CareNet ("CC N "), F N F is acting as a third party service provider to a mortgage loan servicer. In those instances, we may collect certain information on behalf of that mortgage loan servicer, including:
• first and last name;
• property address;
• usernam e and password;
• loan number;
• social security number - masked upon entry;
• email address;
• security questions and answers; and
• IP address.
Th e information you submit is then transferred to your mortgageloan servicer by way of C C N , Th e m ortgage loan servicer isresponsible for taking action o r m aking changes to any con su m er information subm itted through this website. F o r example, if you believe that yo ur paym ent o r user information is incorrect, you m ust contact your m ortgage loan servicer.
C C N does not share consumer information with third parties, other than those with which the mortgage loan servicer has contracted to interface with the C C N application. All sections of this Privacy Notice apply to your interaction with C CN , except for the sections titled Choices with Your Information, and Access and Correction. If you have questions regarding the choices you have with regard to your personal information or how to access or correct your personal information, contact your mortgage loan servicer.
Contact FNFPlease send questions and/or comments related to this Privacy Notice by email at [email protected] or by mail at:
Fidelity National Financial, Inc.601 Riverside Avenue
Jacksonville, Florida 32204 Attn: Chief Privacy Officer
Copyright © 2016. Fidelity National Financial, Inc.Ali Rights Reserved.
E F F E C T IV E A S O F A P R IL 1, 2016
Printed: 02.22.17 @ 08:37 AM by JFA-CT-FW KO-02180.055851 -58601509525
A TTA C H M E N T O N E
CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990
EXCLUSIONS FROM COVERAGEThe following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations) restricting,regulating, prohibiting or relating (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or notice of a defect, lienor encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for theestate or interest insured by this policy.
4. Unenforceabiiity of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure ofany subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state in which the land is situated.
5. invalidity or unenforceabiiity of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law.
6. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy or the transaction creating the interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws.
EXCEPTIONS FROM COVERAGE - SCHEDULE B, PART IThis policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of:
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on realproperty or by the public records.
Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records.
2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records.
6. Any lien or right to a lien for services, labor or material not shown by the public records.
Attachment One (05/06/16}
CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE (12-02-13) ALTA HOMEOWNER’S POLICY OF TITLE INSURANCE
EXCLUSIONSIn addition to the Exceptions in Schedule B, You are not insured against loss, costs, attorneys' fees, and expenses resulting from;
1. Governmental police power, and the existence or violation of those portions of any law or government regulation concerning:
a. building;
b. zoning;
c. land use;d. improvements on the Land;e. land division; andf. environmental protection.
This Exclusion does not limit the coverage described in Covered Risk 8,a., 14, 1 5 ,1 6 ,1 8 , 19, 20, 23 or 27.2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion does
not limit the coverage described in Covered Risk 14 or 15,
3. The right to take the Land by condemning it. This Exclusion does not limit the coverage described in Covered Risk 17.
4. Risks:
a. that are created, allowed, or agreed to by You, whether or not they are recorded in the Public Records;b. that are Known to You at the Policy Date, but not to Us, unless they are recorded in the Public Records at the Policy Date;
c. that result in no loss to You; or
d. that first occur after the Policy Date - this does not limit the coverage described in Covered Risk 7, 8.e., 25, 26, 27 or 28.
5. Failure to pay value for Your Title.
6. Lack of a right;a. to any land outside the area specifically described and referred to in paragraph 3 of Schedule A; and
b. in streets, alleys, or waterways that touch the Land,This Exclusion does not limit the coverage described in Covered Risk 11 or 21.
7. The transfer of the Title to You is invalid as a preferential transfer or as a fraudulent transfer or conveyance under federal bankruptcy, stateinsolvency, or similar creditors’ rights laws.
8. Contamination, explosion, fire, flooding, vibration, fracturing, earthquake or subsidence,
9. Negligence by a person or an Entity exercising a right to extract or develop minerals, water, or any other substances.
LIMITATIONS ON COVERED RISKSYour insurance for the following Covered Risks is limited on the Owner’s Coverage Statement as follows:
For Covered Risk 16, 18, 19 and 21, Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A.
The deductible amounts and maximum dollar limits shown on Schedule A are as follows:
Your Deductible Amount Our Maximum Dollar Limit of Liability
Covered Risk 16: 1.00% of Policy Amount Shown in Schedule A $ 10,000.00or
$2,500.00 (whichever is less)
Covered Risk 18: 1.00% of Policy Amount Shown in Schedule A $ 25,000.00or
$5,000.00 (whichever is less)
Covered Risk 19: 1.00% of Policy Amount Shown in Schedule A $ 25,000.00or
$5,000.00 (whichever is less)
Covered Risk 21: 1,00% of Policy Amount Shown in Schedule A $ 5,000.00or
$2,500.00 (whichever is less)
ATTACHMENT ONE(CONTINUED)
Attachment One (05/06/16)
ATTACHMENT ONE(CONTINUED)
2006 ALTA LOAN POLICY (06-17-06)
EXCLUSIONS FROM COVERAGETh e following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of:1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or
relating to
(i) the occupancy, use, or enjoyment of the Land;(ii) the character, dimensions, or location of any improvement erected on the Land;
(iii) the subdivision of land; or
(iv) environmental protection;
or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5.
(b) Any governmental police power. This Exclusion 1 (b) does not modify or limit the coverage provided under Covered Risk 6.
2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3. Defects, liens, encumbrances, adverse claims, or other matters
(a) created, suffered, assumed, or agreed to by the Insured Claimant;
(b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the insured Claimant and not disclosed inwriting to the Company by the insured Claimant prior to the date the Insured Claimant became an insured under this policy;
(c) resulting in no loss or damage to the Insured Claimant;(d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 13,
or 14); or
(e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the insured Mortgage.
4. Unenforceability of the lien of the insured Mortgage because of the inability or failure of an insured to comply with applicable doing-business laws of the state where the Land is situated.
5. Invalidity or unenforceabiiity in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the insuredMortgage and is based upon usury or any consumer credit protection or truth-in-lending law.
6. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors’ rights laws, that the transaction creating the iienof the Insured Mortgage, is
(a) a fraudulent conveyance or fraudulent transfer, or
(b) a preferential transfer for any reason not stated in Covered Risk 13(b) of this policy.
7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy andthe date of recording of the Insured Mortgage in the Public Records. This Exclusion does not modify or limit the coverage provided under CoveredRisk 11(b).
Th e above poiicy form may be issued to afford either Standard Coverage or Extended Coverage, in addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGE[Except as provided in Schedule B - Part li,[ t[or Tjhis poiicy does not insure against loss or damage, and the Company will not pay costs, attorneys’ fees, or expenses that arise by reason of:
[P A R T I
[The above policy form may be issued to afford either Standard Coverage or Extended Coverage, in addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
1. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on realproperty or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings,whether or not shown by the records of such agency or by the Public Records.
2. Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or thatmay be asserted by persons in possession of the Land.
3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate andcomplete land survey of the Land and not shown by the Public Records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or titleto water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records.
6. Any lien or right to a iien for services, labor or material not shown by the Public Records.]
P A R T II
In addition to the matters set forth in Part i of this Schedule, the Title is subject to the following matters, and the Company insures against loss ordamage sustained in the event that they are not subordinate to the lien of the Insured Mortgage:]
Attachment One (05/06/16)
ATTACHMENT ONE(CONTENUED)
2006 ALTA OWNER’S POLICY (06-17-06)
EXCLUSIONS FROM COVERAGETh e following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of:
1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, orrelating to
(i) the occupancy, use, or enjoyment of the Land;
(ii) the character, dimensions, or location of any improvement erected on the Land;
(iii) the subdivision of land; or
(iv) environmental protection;
or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5.
(b) Any governmental police power. This Exclusion 1 (b) does not modify or limit the coverage provided under Covered Risk 6.
2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8,
3. Defects, liens, encumbrances, adverse claims, or other matters
(a) created, suffered, assumed, or agreed to by the Insured Claimant;
(b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed inwriting to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
(c) resulting in no loss or damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 9and 10); or
(e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title.
4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors’ rights laws, that the transaction vesting the Titleas shown in Schedule A, is
(a) a fraudulent conveyance or fraudulent transfer; or
(b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy.
5. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A.
The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
EXCEPTIONS FROM COVERAGEThis policy does not insure against loss or damage, and the Company will not pay costs, attorneys’ fees, or expenses that arise by reason of:
[The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage:
1. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on realproperty or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records.
2. Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or thatmay be asserted by persons in possession of the Land.
3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate andcomplete land survey of the Land and not shown by the Public Records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records.
6. Any lien or right to a lien for services, labor or material not shown by the Public Records.]
7. [Variable exceptions such as taxes, easements, C C & R ’s, etc., shown here,]
Attachment One (05/06/16)
ATTACHMENT ONE(CONTINUED)
ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY - ASSESSMENTS PRIORITY (04-02-15)
EXCLUSIONS FROM COVERAGETh e following matters are expressly excluded from the coverage of this policy and the Com pany will not pay loss or damage, costs, attorneys’ fees or expenses which arise by reason of:
1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, orrelating to
(i) the occupancy, use, or enjoyment of the Land;
(ii) the character, dimensions, or location of any improvement erected on the Land;
(iii) the subdivision of land; or
(iv) environmental protection;
or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16.
(b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16.
2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3. Defects, liens, encumbrances, adverse claims, or other matters
(a) created, suffered, assumed, or agreed to by the Insured Claimant;
(b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed inwriting to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
(c) resulting in no loss or damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 16,17, 18, 19, 20, 21, 22, 23, 24, 27 or 28); or
(e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4. Unenforceabiiity of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing-business lawsof the state where the Land is situated.
5. Invalidity or unenforceabiiity in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the insured Mortgage and is based upon usury, or any consumer credit protection or truth-in-lending law. This Exclusion does not modify or limit the coverage provided in Covered Risk 26.
6. Any claim of invalidity, unenforceabiiity or lack of priority of the lien of the Insured Mortgage as to Advances or modifications made after theinsured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 11.
7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of Policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 11 (b) or 25.
8. Th e failure of the residential structure, or any portion of it, to have been constructed before, on or after Date of Policy in accordance with applicable building codes. This Exclusion does not modify or limit the coverage provided in Covered Risk 5 or 6.
9. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors’ rights laws, that the transaction creating the lienof the Insured Mortgage, is
(a) a fraudulent conveyance or fraudulent transfer, or
(b) a preferential transfer for any reason not stated in Covered Risk 27(b) of this policy.
10. Contamination, explosion, fire, flooding, vibration, fracturing, earthquake, or subsidence.
11. Negligence by a person or an Entity exercising a right to extract or develop minerals, water, or any other substances.
Attachment One (05/06/16)
Notice of Available Discounts
Pursuant to Section 2355.3 in Title 10 of the California C o d e of Regulations Fidelity National Financial, Inc. and its subsidiaries ("F N F ") must deliver a notice of each discount available under our current rate filing along with the delivery of escrow instructions, a preliminary report or com m itm ent. Please be aware that the provision of this notice does not constitute a waiver of the consum er's right to be charged the filed rate. A s such, your transaction m ay not qualify for the below discounts.
You are encouraged to discuss the applicability of one or more of the below discounts with a C o m p a n y representative. T h e s e discounts are generally described below; consult the rate m anual for a full description of the terms, conditions and requirements for such discount. Th e s e discounts only apply to transactions involving services rendered by the F N F Fam ily of Com panies. Th is notice only applies to transactions involving property im proved with a one-to-four family residential dwelling.
Not all discounts are offered by every F N F C om pany. T h e discount will only be applicable to the F N F C o m p a n y as indicated by the nam ed discount.
FNF Underwritten Title Companies Underwritten bv FNF UnderwritersC T C - Chicago Title C o m p a n y C T IC - Chicago Title Insurance C o m p a n y
Available Discounts
CREDIT FOR PRELIMINARY TITLE REPORTS AND/OR COMMITMENTS ON SUBSEQUENT POLICIES (CTIC)W h e re no m ajor change in the title has occurred since the issuance of the original report or commitment, the order m ay be reopened within 12 to 36 m onths and all or a portion of the charge previously paid for the report or com m itm ent m ay be credited on a subsequent policy charge.
FEE REDUCTION SETTLEMENT PROGRAM (CTC, CTIC)Eligible custom ers shall receive a $20.00 reduction in their title and/or escrow fees charged by the C o m p a n y for each eligible transaction in accordance with the term s of the Final Judgm ents entered in The People of the State of California et al. v. Fidelity National Title Insurance Company et a/,, Sacram ento Superior Court C a se No. 9 9A S02793, and related cases.
DISASTER LOANS (CTIC)T h e charge for a Lender’s Policy (Standard or Extended coverage) covering the financing or refinancing by an ow ner of record, within 24 m onths of the date of a declaration of a disaster area by the governm ent of the United States or the State of California on any land located in said area, which w as partially or totally destroyed in the disaster, will be 5 0 % of the appropriate title insurance rate.
CHURCHES OR CHARITABLE NON-PROFIT ORGANIZATIONS (CTIC)O n properties used as a church or for charitable purposes within the scope of the normal activities of such entities, provided said charge is norm ally the church's obligation the charge for an owner's policy shall be 5 0 % to 7 0 % of the appropriate title insurance rate, depending on the type of coverage selected. T h e charge for a lender's policy shall be 3 2 % to 5 0 % of the appropriate title insurance rate, depending on the type of coverage selected.
Notice of Available Discounts SCA0002565_CTLA.doc / Updated: 08.12.16
Printed: 02.22.17 @ 08:37 AM by JFA-CT-FWKO-02180.055851-58601509525
EXHIBIT
f U 1 M ) R N M tk A S S O C I A T I O N
O f R T A I 7 O K S *DEMAND TO CLOSE ESCROW
(C .A .R . Fo rm 0 C E , 10/05)
In a cco rdance with the term s a n d conditions of the: jxj California Residential P u rc h a s i Aqree
_ ("A gre e m e n t”) j dated ° f ̂ O th e ron property Known a s ________ 618 Via Lido Nord, Newport Beach, CAbetween „ Michael J.Avenatti, Lisa Storie A venatti or a s s h ^ ^ — ( ' Pro p ^
and Gary E. Prim m Fam ily Trust _ Z Z ~ T -------- -- ---------— — r 8 u y ^ ? 'with an a g re e d u p o n C lo s e O f E s c ro w date o f ________________________ o r before A u o u s r ^ T ^ J ^ ~ ~ — — C S e ^
1. Seller hereby demands that Buyer close escrow on the Property:A , ■{)£ W ith in 3 (o r Q _ ___________ ) D a Vs A fter re c e ip tof thls D e m a n d T o C lo s e Escro w butupon C lo se O f E sc row date. O RB - O B y
E scrow b u t no earlier than the a g re ed upon C lo se O f E scrow da te
no earlier than the agreed
(Date), which is at leas! 3 Days After receipt of this DemandO f F sn rriw date to Close
andN o te T o B u y e r : If you do n o t d o s e e s c ro w by the e nd o f the tim e p e riod sp ec ified in th is Dem and to Clo S e ller has fully pe tfo rm ed^S eU er m ay (i) immediately cance l the A greem en t; (ii) bring legal action against you f a n 0* ’ 31 (inc lud ing b u t no t l im i t e d o the d ep o s it); o r (iii) b ring lega l action a g a in s t y o u to fo rce you to buy the P rop e X r 9es p e f f o p p ^ c e } . (specific
£ ]A M g p MSeller Gary BjPrimm Family Trust Date T im e
S e lle r Date T im e. □ a m D pm
2. Buyer h e re b y d e m a n d s th a t S e lle r c lo s e e s c ro w o n th e P ro p e r ty :A D W ith in 3 (o r Q _____________ ) D ays A fte r re ce ip t o f th is D em and T o C lo se Escrow, bu t no earlier than the agreedupon C lo s e O f E s c ro w date. O RB.[jBy_ ______________________________ (D ate), w h ich is a t lea s t 3 D ays A fte r rece ipt o f this Demand to CloseE scrow b u t no e a r lie r th a n th e a g re e d upon C lo se O f E scrow da te . j
N o te To S e lle r ; I f y o u d o n o t c lo se e s c ro w by th e e nd o f the tim e p eriod spec ified ip th is Dem and to Close Escrow, and B uyer h as fu lly pe rfo rm ed , B uye r m a y (i) b ring lega l ac tion a ga ins t you fo r d am ages because o f your breach o f contract (ii) bring leg a l a c tion a g a in s t you to fo rce yo u to se ll th e P rop e rty (sp e c ific perfo rm an ce ), o r (iii) both.
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EXHIBIT
DocuSign Envelope ID: 56256943-071C-458B-A7D8-68B83CD 212B3 * L 1 r U R N I A
a s s o c i a t i o n DEMAND TO CLOSE ESCROWOF R E A L T O R S * (C.A.R. Form DCE, 10/05)
In accordance with the terms and conditions of the: [xj California Residential Purchase Agreement or [~j Other{“Agreement”), dated September 23, 2015
on p ro p e rty k n o w n a s ___________________ 618 Via Lido Nord. Newport Beach, CA 92663 (“ P rop e rty ”),b e tw e e n __________________ Michael J.Avenatti. Lisa Storie Avenatti or assignee_______________________ (“B uye r”),a n d __________________________ Gary E Primm Family Trust_________________________________________(“S e ller*)w ith a n a g re e d u p o n C lo s e O f E s c ro w d a te o f ________________________or before August 31.2016_____________________ :
1. Seller hereby demands that Buyer close escrow on the Property:A . [x| W ith in 3 (o r Q ______________ ) D a ys A fte r re ce ip t o f th is D em and T o C lo se E s c ro w b u t no e a r lie r than the ag re edu po n C fo s e O f E s c ro w d a te .OR
B . D b Y (D ate ), w h ich is a t lea s t 3 D a ys A fte r re ce ip t o f th is D e m a n d to C loseE s c ro w b u t n o e a r lie r th a m th e a g re e d upon C lo se O f E scrow date.
Note To Buyer: I f y o u d o r io t q o s e e s c ro w b y the end o f the tim e period s p e c ifie d in th is D e m a n d to C lo se E scrow , and S e lle r h a s fu lly p e r fo rm e d /S e lla - m ay (i) im m ed ia te ly cance l the A greem en t; (ii) b ring lega l a c tion a g a in s t you fo r d am ages ( inc lud incp 'bu t n o t lim ite d to th e d ep o s it); o r (iii) b ring lega l action a ga ins t you to fo rc e yo u to buy th e P ro p e rty (spe c ific p e rfo n p a p e e ). ^
____________________________________ 03/08/2017 'Z I f l A M | g P MSeller Gary E. *rinffrn Family Trust Date Time
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2. Buyer hereby demands that Seller close escrow on the Property:A. \2 Within 3 (or Q ___________ ) Days After receipt of this Demand To Close Escrow, but no earlier than the agreedupon Close Of Escrow date.ORB . [ ] B y (Date), which is at least 3 Days After receipt of this Demand to CloseEscrow but no earlier than the agreed upon Close Of Escrow date.
Note To Seller: If you do not close escrow by the end of the time period specified in this Demand to Close Escrow, and Buyer has fully performed, Buyer may (i) bring legal action against you for damages because of your breach of contract, (ii) bring legal action against you to force you to sell the Property (specific performance), or (iii) both.
£ ] a m [ ] pmBuyer Date Time
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K /_____ ) (Initials) CONFIRMATION OF RECEIPT: A Copy of this Signed Demand to Close Escrow was personallyreceived by the Buyer or Seller to whom it was sent or that person's authorized agent on 3/8/17_________________ _(date), at 2:45 ______D a m Q pm
TTa copyright law* oI th« United States (TITLE 17 U.S. Code) forbid the unauthorized reproduction of tW* form by any mean*. including facsmite or computerized format*. Copyright © 2005. CALffORNIA ASSOCIATION OF REALTORS®THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORS® (C A R ). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE. CONSULT AN APPROPRIATE PROFESSIONALT h » form ts available for use by the entire real estate industry, tt is not intended to identify the user a* a REALTOR®. REALTOR® is a registered collective membership mark which may be used only by member* of the NATIONAL ASSOCIATION OF REALTORS® who subscribe to it* Code of Ethics.
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D C E 10/05 (P A G E 1 O F 1)D E M A N D T O C L O S E E S C R O W (D C E P A G E 1 O F 1)
Trie* Prvptrtics, 12 C*n>®r*t* Plat* #250 NEWPORT BEACH, CA 92660 Phone: M9J753445 Fax: W9JSL5349 61* VU Lkl* NwdDOUG SftORO_____________ _____________ Produced with ztoForm© by zipLogbt 16070 Fifteen Mite Road, Fraser. Michigan 4S028 wwvr a pL0fljg_C2lIl______________________________________ _ _
