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1 STEVEN B. PISER, SBN 62414
LAW OFFICES OF STEVEN B. PISER
2 A Professional Corporation
1970 Broadway, Suite 600
3 Oakland, California 94612
Telephone: (510) 835-5582
4
JOhN L. F1’IJGERALD, SBN 126613
5 LAW OFFICES OF JOHN L. FITZGERALD
177 Hovel Road. Suite 600
6 San Mateo, California 94402
Telephone: (650) 638-2386
7
8 Attorneys for
DBP INVESTMENTS.
9 a California General Partnership
10
11
12 IN THE SUPERIOR COURT OF TIlE STATE OF CALIFORNIA
13 IN AND FOR TI IF. COUNTY OF SAN MATEO
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15 DBP INVESTMENTS, a California General ) CASE No. C1V538897
Partnership, )
16 )
Plaintiff ) PlAINTIFF 1)BP INVESTMENTS’ ljsr Oi
17 ) Fxiiinirs REFERREI) To IN TRIAL BRIEF
V. )
18 ) TRIi I. FEBRUARY 28, 2023
KING PLAZA CENTER. LLC. a Delaware ) Ti i i: 9:00 \.M.
19 Limited Liability Company, BLA-QUACI I. ) I)vI’r. 21
an individual. SOVAN LIEN, an individual. )
20 DONG VUONG, an individual. THANI-l
LAI, and DOES 1 through 10 )
21 )
De/èndants. )
22 )
23 The following attached exhibits arc referred to in DBP’s trial brief. Dcl’endanl has
24 stipulated to the admissibility of all ofexhibits identified except 114, 115 and 118.
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Exhibit
No. Date Description
26
1 02 02/27/90 Fully executed agreement to Purchase
27 Real Property between DBP
investments and Litke group
28 104 01/11/97 Reciprocal Easement and Operation
Agreement signed by Litke in 1997
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Low Offices of
Stevez B. Piser
PlAINTIFF DI3P INVESTMENTS’ LIST Or EXIIIBITS REFERRED To IN TRIAl. RR!EF
Exhibit
1 No. Date Description
.___________________ and DI3P in 2000.
2 107 09/25/00 Certificate of Compliance signed by
Ferry Sedik. director of Economic &
3 Community Development Daly City
108 11/14/00 Grant Deed King to DBP
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4 109 11/14/00 Grant Deed DBP to King
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114 02/12/07 E-Mail from Stella Chu to Sabrina Flo
5 re: Reciprocal Agreement
115 02/14/07 E-Mail from Stella Gm to Sabrina Flo
6 I 18 03/07/07 Signed acknowledgment by Tammy
Flo of letter sent by King Plaza
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Partners (Jeffrey Litke) acknowledging
Reciprocal Easement and Operation
8
gccipcpL
122 04/14/12 E-Mail from Edmond lb to Sabrina
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Ito and Jeanne I-b rc: King Plaza
10 Meeting with l3owling
11 LAW OFFICES OF STEVEN 13. PISER
A Professional Corporation
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LAW OFFICES .iOlIN L. FITZGERALI)
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DATED: February 32023 By:
15 S1FEV1EN 13. PISER
Attorney for
16 1)1W INVESTMFN1S, a California
General Partnershi p
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Law Offices of
Steven B. nsa, 2
PLAINTIFF DBP iNVESTMENTS’ LIST Or EXHIBITS REFERREDFO IN TRIAL BRIEF
1 PROOF OF SERVICE BY E-MAIL
DI3P Investments v. King Plaza Center and Related Cross-Action
2 San Mateo County Superior Court, Unlimited Jurisdiction
Case #C1V538897
3
4 I, Esperanza Izazaga, declare the following:
5 I am employed in Alameda County, California, am over eighteen years of age, and
am not a party to the within action or proceeding. My business address is 1970
6 Broadway, Suite 600, Oakland, California 94612.
7 On February 23, 2023, I served a copy of:
8 PLAINTIFF DBP INVESTMENTS’ LIST OF ExITIBITS REFERRED To IN TRIAL BRIEF
9 by sending copies via electronic mail as follows:
10 Co-Connselfor King Plaza Center, LLC Attorneysfor King Plaza Center, LLC
Steven D. MeLellan Janet Fogarty
11 Gates Eisenhart Dowson Law Office ofJanet Foqarty & Associates
125 South Market Street, Suite 1200 1126 Hillcrest Boulevard
12
San Jose, California 95113 Millbrae, California 94030
13 Telephone: (408) 288-8100 Telephone: (650) 652-5601
Facsimile: (408) 288-9409 Facsimile: (6so) 652-5604
14 e-mail: sdmgedlaw.com e-mail: jfogartvlawfirmaDyahoo.com
15 Co-Counselfor Plaintiffs
John L Fitzgerald
16 Law Offices of John L. Fitzgerald
177 Bovet Road, Suite 600
17 San Mateo, California 94402
Telephone: (415) 689-1209
18 e-mail: john Djlfitzgera1d1aw.com
19 I declare under penalty of perjury that the foregoing is true and correct.
Executed February 23, 2023, at Oakland, California.
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Law Offices of
Steven B. P1st’, PRoOF Oi SERVWE B E-MAIL
Exhibit 102
•1 — —— —.
2/13/90
OflER TO PURCHASE REAL PROPERTY
The undersigned Buyer (“Buyer”) offers to purchase from
DEP INVESTMENTS, a California general partnership (“Seller”),
real property located in the County of San Nateo, State of
California, including the improvements and personal property
owned by Seller thereon, in accordance with the terms of an
agreement which is detailed below.
This agreement shall replace all previous agreements between
the parties.
1, Recitals and Sale
1.1 seller does hereby agree to sell to Buyer and
Buyer does hereby agree to purchase from Seller, a one—half (1/2)
tenancy—in—common interest in that, real property (“property”) in
Daly City, California, commonly known as 930 King Drive, and more
specifically described in exhibit A, attached hereto.
1.2 It is the intent of the parties that Buyer
purchase only that interest in the property described on
exhibit B; and Seller retain the balance of property, namely the
footprint of the bowling alley building and the adjacent parking
on King Drive. However, the shcrtness of time does not permit a
subdivision of the property before the transfer of title.
Consequently, Seller shall convey to Buyer a one-half tenancy—in—
common interest; and after transfer of title, Seller shall have
the responsibility, at Seller’s reasonable expense, forthwith,
with deliberate speed, immediately to subdivide the property, as
indicated on exhibit B. Buyer shall cooperate in the
subdivision. In the inter!ri, the parties shall share expenses
and costs as if the property were subdivided, as more
specifically set forth in the Operating Agreement attached hereto
marked as exhibit C (i) Prior to subdivision, neither party
shall further encumber its tenancy-in—common interest or permit
it tc be liened.
1.3 The parties shall maintain mutual interests in the
parking facilities of the property as specified in exhibit C (ii)
attached hereto.
1.4 Seller represents that Seller is the owner of the
property. Various areas of the property have been leased to
commercial tenants. A ccmplete list of all tenancies affecting
the property is attached hereto marked exhibit D.
0EV 06001
2. purchase Price
2.1 The purchase price to be paid by Buyer to Seller
for the one—half (1/2) interest in the property shall be the sum
of to
be paid by Buyer as indicated below.
(a) Upon execution of this agreement, Buyer shall
deliver to Seller a check for an initial deposit of —
payable to the title company designated below
(“escrow holder”) and Seller on acceptance of this offer shall
deliver said check to escrow holder along with an eecuted copy
of this agreement. Escrow holder shall forthwith lace that
deposit in an interest-bearing account with interest to accrue
for the benefit of Buyer.
(b) Within two (2) business days after Buyer’s -
acceptance, Buyer shall increase Buyer’s cash deposit to —
including the previously deposited
(c) Prior to close of escrow, Buyer shall 4çposit
an additional I
(minus or plus equitable prorations and costs) in escrow. Buyer
shall assume the obligation of paying of the
loans encumbering the property as specified below.
(d) In summary, the funds making up the purchase
price are as follows:
(i) Initial deposit
(ii) Second deposit
(iii) Final Deposit
(minus or plus
prorations and
costs)
(iv) Assumption of loan
liability
Total
3, Financing
3.1 The property is encumbered by a first deed of
trust to San Francisco Federal Savings & Loan Association (“SF
Federal”), which secures a promissory note of approximately
due February 28, 1997, and a second deed of trust
to Winchester Savings Bank (“Winchester”), which secures a
promissory note of approximately - due
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DEV 06002
March 27, 1997, Neither loan is in default. The encumbrances
total approximately — Buyer shall assume
the payments of — of those encumbrances as set
—
forth below. Seller shall pay the balance of the monthly
payments. Seller shall pay toWinchestet . — of the
purchase price immediately upon closing of this transaction. The
parties anticipate that thereafter the Winchester installment
payments will be reduced,
,.3.2ach party shall give the other a deed of trust on
its interest in the property as security for the performance of
its obligations under this agreement. -
3.3 Six (6) months after the closing date, Buyer shall
pay — to Ssller as a principal reduction of Buyer’s
-— obligation. The allocation of Buyer’s monthly
installment charged to interest shall be reduced accordingly.
3.4 Buyer shall pay to Seller, as trustee, for use by
Seller in making payments to the two (2) lenders, that aggregate
portion of the lenders’ regular monthly installments which.
- bears to the total outstanding obligation to the two
(2) lenders at close of escrow. That ratio shall take into
consideration the pay down of to Winchester. That ratio
shall remain constant until Buyer’s payment of — to Seller;
thereafter, the ratio shall be re—calculated and remain constant
until Buyer pays off the entire 9 obligation at the time
of the refinancing described below.
Buyer shall not be obligated to pay any portion of
any payment of principal which may be required by the notes of
the two (2) lenders other than what may be included in the
regular monthly installments. •
Any other reduction of the principal owed to the
lenders shall not reduce either party’s obligations to pay the
specified portion of the monthly loan installments in the ratio
set forth above. %‘.
3.5 Buyer’s interest rate shall be an equitable blend
of the rate which Seller is obligated to pay the twa (2) lenders
and shall fluctuate periodically in accordance with Seller’s
obligations. Each party shall pay the same combined interest
rate on their respective allocation of principal.
3.6 On or before three (3) years from the cpsing
date, Buyer shall pay the balance of its F
obligation by eliminating the debt to Winchester and reducing the
balance to SF Federal. Simultaneously, Seller shall pay the.
remaining balance owed to the first and second lenders and clear
all other encumbrances it may have created on Buyer’s parcel
except easements and restrictions accepted by Buyer at.closa of
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0EV 06003
escrow. On demand of Seller, if Seller is uxtable to pay the
balance owed to the first and second lenders, Buyer, to enable
Seller to clear the encumbrances, shall loan Seller up to
on bank terms for three (3) years provided that the
aforenentioned loan is secured by adequate collateral (i.e.,
after it is encumbered by Seller, the encumbrances total no more
than —
. • percent of its fair market value). NO
formal appraisal shall be required unless there is a valuation
dispute between the parties. In that event the parties shall
agree on an appraiser whose decision shall determine the
valuation. If the parties cannct agree on an appraiser on ten
(10) days’ notice to the other party, either party may apply to
the American Arbitration Association for the appointment of an
appraiser.
3.7 .Ehch of the parties is aware that the first and
second notes contain due—on—sale clauses.
LB All payments by Buyer to the lenders shall be made
to Seller as trustee for Buyer. After the close of escrow, and
prior to each and every payment to Seller, Seller shall deliver
to’Buyer a9statement from the lenders affirming the receipt by
lenders of Seller’s previous payment to the lenders. Any non
payment to a lender by Seller o.fitsjor Buyer’s, portion of an
installment, shall, at Buyer’s option, abate Buyer’s opligation
to make its payment to that lender until Seller has cured its
non—payment.
3.9 Buyer shall be entitled to the benefits of named
insured and on request shall be a earned insured on all insurance
policies covering the property until the subdivision is
completed.
4. Title
4,1 seller has provided Buyer with a preliminary title
report, order number 158 197 (“ETE”) covering the property issued
by Founders Title company, 265 Montgomery Street, San Francisco,
California 94104 (“escrow holder”) on January 11, 1990. The
above title company shall be the escrow holder and title insurer.
4.2 on the closing date, Seller shall deliver to Buyer
title to the property subject only to exceptions indicated in 4.3
below, or which are accepted by Buyer at closing.
4.3 Escrow holder shall cause to be issued by a title
company a CLTA policy of title insurance, insuring Buyer with a
liability equal to the purchase price heretofore mentioned, which
policy shall, in addition to the standard printed exceptions and
rights of tenants, contain the exceptions designated by Buyer
within two (2) business days after Seller’s acceptance.
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DEV 06004
s. Seller’s Delivery into Escrow
5.1 seller will deliver into escrow:
(a) Grant deed conveying one—half (1/2) interest
in property to Buyer;
(b) Such other instruments or instructions as
Seller or the Buyer may reasonably request in order to consummate
this transaction;
(o) Such other documents required of Seller under
the terms of this document;
(d) A certification of nonresident alien status
executed by Seller;
(e) A bill of sale re: any personal property
owned by Seller on the property;
(f) An assignment of all leases except the lease
to classic Bowl; and
(g) An estoppel certificate from each tenant
whose lease is assigned.
6. Buyer’s Delivery into Escrow
6.1 Buyer will deliver into escrow:
(a) The purchase price including the deposits of
Buyer plus such additional funds as are required to pay charges
ayab1e by Buyer hereunder, less any credit to which Buyer is
entitled under the terms hereof.
(b) Such other instruments or instructions as
escrow holder or the Seller may reasonably request in order to
consummate this transaction.
(c) Such other documents required of Buyer under
the terms of this document.
7. Charges
7,1 The fee of escrow holder shall be paid by Buyer.
7.2 The cost of a CITA title insurance policy shall be
paid by Buyer.
7.3 All expenses and charges incurred with the
clearance of title and grant deed shall be charged to Seller.
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DEV 06005
7.4 Preparation, cost, arid recording charges for the
financing and security documents shall be paid by Buyer.
7.5 All documentary transfer taxes shall be paid by
Seller.
s. prorations and Credits
8.2 Escrow holder shall prorate one—half (1/2) the
real estate taxes on the basis of the current year’s assessment.
8.2 Escrow holder shall collect from Seller, from
funds accruing to Seller in this escrow, and credit Buyer with a
pro rata portion of the monthly rents of the assigned leases,
prorated as of the close of escrow. Escrow holder shall further
credit Buyer with any security deposit under the leases.
8.3 All prorations shall be made on the basis of
actual days elapsed and a 365 day year as of the date of the
recording of the deed.
8.4 Seller shall assign all past—due rents from
current tenants to Buyer for collection. Buyer shall remit to
Seller all past—due rents which Buyer collects after closing, but
only to the extent that Buyer’s collection is in excess of the
current rents collected.
9. close of Escrow and Possession
9.1 The term “close of escrow” is hereby defined to
mean the date when Seller and Buyer have performed their
respective obligations under this agreement, all conditions
precedent have been satisfied, and the escrow holder has all
documents and funds it recuires in order to record the deed to
Buyer and deliver funds to Seller.
9.2 The close of escrow shall be February 15, 1990
(“expected closing date”) , or earlier if the parties agree
otherwise. Time is of the essence.
10. conditions
10.1 Buyer shall be allowed two (2) business days after
acceptance by Seller to further examine the property and consult
with Buyer’s own experts (including a soils engineer, general
contractor, termite inspector, roofing contractor, and structural
engineer) and to examine the rental agreements, accounting
records, city and county records ar.d Seller’s other documents
relating to the property.
10.2 If for any reason Buyer desires to rescind this
transaction, he nay do so, provided he delivers a letter of
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DEV 06006
rescission to Seller, either by personal service, or by deposit
in the U.S. Post Office by certified or registered sail, on or
before the two (2) business days noted above, on rescission,
Buyer’s deposit will be refunded to Buyer. Escrow costs, if any,
shall be divided equally between the parties.
10.3 If no written rescission notice is given as set
forth above, it shall be presumed that the condition of the
prcperty is satisfactory.
10.4 Upon acceptance of this agreement, Buyer (subject
to the rights of tenants and upon notice to Seller) shall have
the right to go upon- the property to conduct reasonable tests to
ascertain whether the property is suitable for any improvements
which Buyer may wish to make. All expenses of such tests shall
be borne by Buyer, and Buyer shall be responsible for the repair
and restoration of any damage to the property which may be caused
by such tests and shall hold Seller harmless from any liability
to third parties.
U5
11. Is”
11.1 BuS’er acknowledges that Buyer is purchasing the
property “as is”; and Buyer confirms that, except as may be
otherwise set forth in this agreement, and such other documents
which Seller has delivered to Buyer, neither Seller nor Seller’s
agents have made any representations or warranties whatsoever,
expressed or implied, concerning or with respect to the property,
its condition, or the use or development and that Buyer is
relying upon Buyer’s own independent investigation in purchasing
the property.
12. Notices
12.1 Whenever either party shall desire to give or
serve upon the other any notice, demand, request, or other
communication, each notice, demand, request, or other
communication shall be in writing and shall be given or served
personally or by certified or registered mail, postage prepaid,
addressed at the address following his signature.
12.2 All mailed notices shall be considered received
twenty-four (24) hours after date-stamped by the post office. If
any party desires to change the address to which notices or
documents are to be delivered to it, such party shall give notice
of such change in the manner provided herein.
13. choice of Law and Forum
13.1 This transaction and the rights and remedies of
the parties thereunder shall be governed by the laws of the State
of California. The parties hereto agree that the proper forum
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DEY 06007
Revised 2/14/90
for the hearing of any matters concerning this transaction and
the rights and remedies of the parties hereunder is the San Nateo
County, State of California.
13.2 Any dispute or claim in law or equity arising cut
of this contract or any resulting transaction shall be decided by
neutral binding arbitration in accordance with the rules of the
American Arbitration Association, and not by court action except
as provided by California law for judicial review of arbitration
proceedings. Judguent upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof. The parties shall have the right to discovery in
accordance with Code of Civil Procedure S 1263.05. The following
matters are excluded from arbitration hereunder: (a) a judicial
or non—judicial foreclosure or other action or proceeding to
enforce a deed of trust, mortgage, or real property sales
contract as defined in Civil Code § 2965, (b) an unlawful
detainer action, (a) the filing or enforcement of a mechanic’s
lien, (d) any matter which is within the jurisdiction of a
probate court, or (a) an action for bodily injury or wrongful
death or for latent or patent defects to which code of Civil
Procedure § 337.1 or § 337.15 applies, or (f)
filing of a judicial
action to enable the recording of a notice of pending action, for
order of attachment, receivership, injunction, or other
provisional remedies, shall not constitute a waiver of the right
to arbitrate under this provision.
Any dispute or claim by or against broker(s) and/or
associate licensee(s) participating in this transaction shall be
submitted to arbitration consistent with the provision above only
if the broker(s) and/or associate licensee(s) making the claim or
against whom the claim is made shall have agreed to submit ft to
arbitration consistent with this provision.
“NOTICE; BY INITIALLING IN THE SPACE BELOW, YOU ARE
AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE HATTERS INCLUDED
IN THE ARBITRATION OF DISPUTES’ PROVISION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW, AND YOU ARE GIVING UP
ANY RIGHTS you MIGHT POSSESS TO HAVE TEE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALLING IN TEE SPACE BELOW, YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAl., UNLESS
SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN TEE ARBITRATION OF
DISPUTES’ PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO
ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY.”
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0EV 06008
WE HAVE READ MID UNDERSTM1D TUE FOREGOING AIIm AGREE ‘ro
SUDMIW DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN TEE
‘ARBITRATION OF DISPUTES’’ PROVISION TO NEUTRAL MBITRATION.”
A”
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Seller’s initials
nuYt9 mi is
14. Suival of Agreements
- 14.1 All covenants, representations, warranties, and
•.agreesents.contained in this agreement shall- survive the close of
escrow, the delivery of documents, and any performance on account
of the obligations set forth herein,
15. successors and Assigns
15.1. This agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
hairs, executors, administrators, successors, and assigns.
• 16. Assignment
16.1 The rights and obligations of the Buyer may be
assigned without the consent of the Seller so long as Buyer’s
assignee shall assume, in writing, the obligations of Buyer
hereunder in such form and content as required by Seller. Such
assignment shall not be deemed to relieve the original Buyer of
liability hereunder until this escrow shall close. All
representations and warranties given by each party to the other
under this document shall be deemed given to and for the benefit
of each party’s assignee. Such assi3nnent shall not be valid
unless Seller is provided a duplicate original thereof.
17. Amendments
17.1 All amendments and supplements to this Offer to
Purchase Real Property must be in writing and executed by each
party hereto; however, such execution may be in counterparts and
when so executed shall be deemed to constitute one document.
Escrow holder shall accept the signature of any one of the Buyers
as the signature of all of the Buyers if Buyer consists of more
than one person.
is. Counternarts
16.1 This agreement nay be executed in several
counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument.
QV 06009
19. Attorney’s Fees
19.1 If either party becomes involved with the other
party in litigation or arbitration arising out of this agreement
or the performance thereof, the court in such litigation or
arbitration shall award attorney’s fees to the prevailing party.
The attorney’s fee award shall not be computed in accordance with
any court schedule, but shall be reasonable and such as to fully
reimburse all attorneys’ fees actually incurred in good faith,
regardless of the size of the judgment, it being the intention of
the parties to fully coipensate for all reasonable attorneys’
fees paid pr incurred, in good faith. -
20. Further Msuranoes
20.0 Buyer and Seller agree to execute all documents
and instruments and to take all action, including deposit of
funds in additIon to such funds as say be specifically provided
for herein and as may be required in order to consummate the
purchase and sale herein contemplated and shall use their best
efforts to accomplish the close of escrow in accordance with the
prdvisions hereof. Buyer and Seller shall each diligently and in
good faith pursue the satisfaction of any conditions or
contingencies.
21. Time of the Essence
21.1 Time is of the essence of this agreement.
22. Entire M’reelnent
22,1 This agreement contains the entire agreement
between the parties hereto with respect to the subject ‘matter
hereof, and supersedes any prior agreements, negotiations, and
other dealings between the parties. This agreement may not be
modified or amended except by a written instrument signed by both
the Buyer and Seller.
23. Broker
23.1 Seller and Buyer are represented by Skyline
Realty Incorporated. At close of escrow, Seller shall pay the
aforementioned licensed broJer a co,us,ijssion of .
In the event another
broker claims a commission, the party responsible for the contact
with that claimant shall hold the other party harmless from that
claim.
23.2 Broker shall lend Buye;
at A per annum interest, all
.
due and payable in three (3) years from closing or on Buyer’s
refinancing of the property, whichever is sooner. That loan
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0EV 08010
shall be secured by a deed of trust on Buyer’s interest in the
property which shall be junior to Seller’s deed of trust.
23.3 Broker shall reimburse Buyer for his attorney’s
fees for drafting documents necessary to close this transaction.
This excludes matters connected with Buyer’s exchange.
24. Unclear l’it
24.1 If due to circumstances unknown to Seller at the
date of the acceptance of this agreement and beyond the
reasonable ability of Seller to change, Seller is unable to
convey title as pr&ided in-this agreement, Buyer’s sole remedy
shall be either to accept the title in its “as is” condition
without any adjustment In the purchase price, or to terminate
this agreement, in which case the total deposit shall be returned
to Buyer. Buyer’s election to accept the title or to terminate
this agreement shall be made in writing delivered to Seller
within five (5) days after receipt of Seller’s written notice to
Buyer of Seller’s inability to deliver the required title. If
Buyer fails to give timely written notice of its election to
seller, Buyer shall be deemed to have elected to terminate this
agreement.
25. Iax-Free Exchanae
25.1 Buyer intends to enter into a tax—free exchange
under the provisions of IRC Section 1031. In the event that
Buyer enters into a tax—deferred exchange for the real property
described herein, each of the parties agrees to cooperate with
the other party in connection with such exchange, including the
execution of such documents as may be reasonably necessary to
effectuate the same. Provided that: (a) the non—exchanging
party shall not be cbligated to delay the closing: (b) all
additional costs in connection with the exchange should be borne
by the exchanging party; (c) the non—exchanging party shall not
be obligated to execute any note, contract, or other document
providing for any liability in excess of that incurred in this
agreement; and the non—exchanging party shall not be required to
take title to another parcel of real property.
26. Risk of Loss, Management and Maintenance
26,1 Euyer shall purchase the property as required by
this agreement without regard to damage to any improvement after
the date of this agreement, provided that the cost tc repair the
damage does not exceed If the
cost exceeds that sum, Buyer may terminate this agreement by
written notice to Seller given within ten (10) business days
after Buyer receives written notice of the damage. If Buyer does
not SQ terminate, Buyer shall receive the insurance proceeds
11
0EV 06011
collected as a result of the damage, or the proceeds shall be
assigned to Buyer at close of escrow, if not then collected.
26.2 Subject to 26.1 above, Seller shall maintain the
property and the deliver it to Buyer at close of escrow in the
same or better conditicn as the real property is on the date of
this offer.
26.3 Subsequent to this offer, Seller shall not enter
into any leases, modification of leases, releases of liability,
grants of easements, licenses to enter or other agreements
substantially affecting the rightsof the owner of the property,
without the written consent of Buyer.
27. Expiration of offer
This after to Seller will expire unless Seller’s
written acceptance is received and Buyer’s written acknowledgment
Is made no later than 5:cO p.m., Febr.iary li, 1990.
Time: LIflE - ERTIES, INC.,
. ;yCa ifor i orpora
Date: _% ‘‘/0 9’A1
itsF / kcsa
Address for Notices: title Properties, Inc.
1906 Lombard Street
San Francisco, Ca. 94123
0
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DEV 06012
ACCEPTANCE
The above offer is accepted.
DBP INVES NTS,
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Date;__________
Time:____________
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Address for Notices: DBP Investments
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DEV 06013
Ppproved:
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DEV 06014
D3CRIPT loS
the land herein referred to Is situated
in the State Of California, County of San
Ilatec, City of Daly City and is described as
fOllows±
Lots 1 throu7fl 14 in Block 7, aS shown on that certain map entitled
•SEHRAHOHTE UNIT NO. 1’, filed in the office of ttt County Recorder
of San Natco County, State of California, °n June 17, 1965 in
Book 62 of Maps at page(S) 29.
A.?, No.: 091—175—150 JPN 091 017 175 15 A
091—175—180 091 017 175 19 A
091—175—190 -
091 017 175 13 A
DEV 06015
EXHIBIT &
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EXHIBIT C
(i) OPERATING AGREEMENT
1. Immediately after close of escrow, each party will
collect the rent on its designated parcel.
2. Each party shall pay the hazard and liability insurance
other expenses for its own building.
3. The expenses for the parking lot shall be divided
equally, including water, electricity, gardening, cleanup
maintenance, repairs, and liability insurance. However, each
party shall pay the real property taxes without regard to the use
of any parcel for parking; and there shall be no allocation of
real property taxes for parking.
4. A projected monthly budget for parking lot expenses
shall be deposited in a joint bank account and dispersed each
month to prospective payees.
5. Property tax shall be paid separately by each party on
its own interest in the property, i.e., Buyer shall pay taxes on
its one—half (1/2) interest prior to subdivision and on its own
parcel after subdivision.
(ii) PARKING LOT UsE
1. All available parking spaces on both Seller’s parcel
and Buyer’s parcel may be used by both parties for the benefit of
the businesses occupying Buyer’s or Seller’s parcel, subject to
paragraph 2 below.
2. Nothing in this agreement shall prevent Buyer or Seller
or their assigns from constructing additional buildings, or
increasing the size of present buildings on their respective
parcels, provided that the construction, including its impact on
parking, is approved by the City of Daly City.
3. After the subdivision of the property, the parking
rights of the parties shall be articulated in a recorded
document, which shall set forth the above rights in the form of
reciprocal easements in more detail and shall also contain the
same attorneys’ fee and arbitration provision as are set forth
herein.
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DEV 06017
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C - C
AMENDMENT OF CONTRACT
FOR THE
SALE AND PURCHASE OF REAL PROPERTY
Re: 950 King Drive, Daly City, California
THIS ANENDMENT, signed on this day of February1 1990, by the
undersigned Buyer, Seller, and Assignee of a certain co1njjact for
the sale and purchase of real property, dated February’Yt,.
1990, entered into between Seller and Litke Properties, Inc., on
behalf of itself and Phoenix Properties (hereafter collectively
“Buyer”).
1. Recitals
(a) Buyer entered into a contract to buy a tenancy—in—
common interest in the above real property (“Subject
Property”). In accordance with paragraph 25 of that
contract, the parties agreed to cooperate with each
other in effecting an exchange under the provisions of
Internal Revenue Code Section 1031.
(b) Buyer desires to obtain the Suiject Property in
exchange for like—kind property which Buyer has already
sold. To facilitate Buyer’s desire, Buyer shall
transfer the contract with Seller to Assignee, who
shall transfer the Subject Property to Buyer and
herself on the same terms and conditions as set forth
in the contract between Buyer and Seller described
above.
2. Agreement
(a) It is understood that the closing of the transaction
shall not be delayed by Buyer’s exchange, nor shall
Seller incur any additional expense because of the
exchange.
(b) To permit the performance of the intention of the
parties, Buyer assigns and conveys, and Assignee
accepts an assignment and conveyance of ll of Buyer’s
interest in the Contract of Sale for the Subject
Property and all of Buyer’s obligations under the
contract for the sale.
0EV 06019
3. Miscellaneous
(a) The parties shall cooperate in executing all documents
necessary to carry out the above agreement.
(b) Any prevailing party in any legal action involving this
agreement shall be entitled to recover reasonable
attorneys fees incurred.
EXECUTED at San Francisco, California, on the date set forth
above.
BUYER ASSIGNEE:
LITKE PROPERTIES JEAN WIRTH, an Unmarried Woman
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SELLER
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ADDENDUN TO CONTRACT
FOR THE
SALE A1D PURCHASE OF REAL PRdPERTY
Re: King Drive, Daly City, dalifornia
1. buyer shall purchase for -
percent tenancy—in—comnoj interest in the property pending
subdivision of the property.
2. Buyer shall pay real property taxes on its
purchase as Lts interest is assessed by the taxing
authorities,
3. The escrow shall prorate, and Buyer shall pay on account,
the real property taxes for the fiscal halt-year January 1,
1990, to June 30, 1990, by charging Buyer for the balance of
the fiscal year after close of escrow for all of the taxes
on assessor’s parcels 092—175—150 and 180, and one—half
(1/2) of the taxes on 091—175—190.
4. When property taxes are finally determined, any required
adjustment shall be made so that the provisions of
paragraph 2 ate given full effect, But no adjustment shall
be made cf the allocation to Seller in escrow of taxes up to
the date of closing of escrow, unless necessary to correct a
clerical error or an error by the taxing authority.
5. If the property is sold prior to subdivision, the division
of the proceeds shall be in accordance with an appraisal of
the value of eaDh party’s parcel as if the subdivision had
occurred.
Dated LInE PROPERTIES, inc.
0EV 06021
ACCEPTANCE
The above offe
Preview
1 STEVEN B. PISER, SBN 62414 LAW OFFICES OF STEVEN B. PISER 2 A Professional Corporation 1970 Broadway, Suite 600 3 Oakland, California 94612 Telephone: (510) 835-5582 4 JOhN L. F1’IJGERALD, SBN 126613 5 LAW OFFICES OF JOHN L. FITZGERALD 177 Hovel Road. Suite 600 6 San Mateo, California 94402 Telephone: (650) 638-2386 7 8 Attorneys for DBP INVESTMENTS. 9 a California General Partnership 10 11 12 IN THE SUPERIOR COURT OF TIlE STATE OF CALIFORNIA 13 IN AND FOR TI IF. COUNTY OF SAN MATEO 14 15 DBP INVESTMENTS, a California General ) CASE No. C1V538897 Partnership, ) 16 ) Plaintiff ) PlAINTIFF 1)BP INVESTMENTS’ ljsr Oi 17 ) Fxiiinirs REFERREI) To IN TRIAL BRIEF V. ) 18 ) TRIi I. FEBRUARY 28, 2023 KING PLAZA CENTER. LLC. a Delaware ) Ti i i: 9:00 \.M. 19 Limited Liability Company, BLA-QUACI I. ) I)vI’r. 21 an individual. SOVAN LIEN, an individual. ) 20 DONG VUONG, an individual. THANI-l LAI, and DOES 1 through 10 ) 21 ) De/èndants. ) 22 ) 23 The following attached exhibits arc referred to in DBP’s trial brief. Dcl’endanl has 24 stipulated to the admissibility of all ofexhibits identified except 114, 115 and 118. 25 Exhibit No. Date Description 26 1 02 02/27/90 Fully executed agreement to Purchase 27 Real Property between DBP investments and Litke group 28 104 01/11/97 Reciprocal Easement and Operation Agreement signed by Litke in 1997 - Low Offices of Stevez B. Piser PlAINTIFF DI3P INVESTMENTS’ LIST Or EXIIIBITS REFERRED To IN TRIAl. RR!EF Exhibit 1 No. Date Description .___________________ and DI3P in 2000. 2 107 09/25/00 Certificate of Compliance signed by Ferry Sedik. director of Economic & 3 Community Development Daly City 108 11/14/00 Grant Deed King to DBP - 4 109 11/14/00 Grant Deed DBP to King - 114 02/12/07 E-Mail from Stella Chu to Sabrina Flo 5 re: Reciprocal Agreement 115 02/14/07 E-Mail from Stella Gm to Sabrina Flo 6 I 18 03/07/07 Signed acknowledgment by Tammy Flo of letter sent by King Plaza 7 Partners (Jeffrey Litke) acknowledging Reciprocal Easement and Operation 8 gccipcpL 122 04/14/12 E-Mail from Edmond lb to Sabrina 9 Ito and Jeanne I-b rc: King Plaza 10 Meeting with l3owling 11 LAW OFFICES OF STEVEN 13. PISER A Professional Corporation 12 LAW OFFICES .iOlIN L. FITZGERALI) 13 14 DATED: February 32023 By: 15 S1FEV1EN 13. PISER Attorney for 16 1)1W INVESTMFN1S, a California General Partnershi p 17 18 19 20 21 22 23 24 25 26 27 28 Law Offices of Steven B. nsa, 2 PLAINTIFF DBP iNVESTMENTS’ LIST Or EXHIBITS REFERREDFO IN TRIAL BRIEF 1 PROOF OF SERVICE BY E-MAIL DI3P Investments v. King Plaza Center and Related Cross-Action 2 San Mateo County Superior Court, Unlimited Jurisdiction Case #C1V538897 3 4 I, Esperanza Izazaga, declare the following: 5 I am employed in Alameda County, California, am over eighteen years of age, and am not a party to the within action or proceeding. My business address is 1970 6 Broadway, Suite 600, Oakland, California 94612. 7 On February 23, 2023, I served a copy of: 8 PLAINTIFF DBP INVESTMENTS’ LIST OF ExITIBITS REFERRED To IN TRIAL BRIEF 9 by sending copies via electronic mail as follows: 10 Co-Connselfor King Plaza Center, LLC Attorneysfor King Plaza Center, LLC Steven D. MeLellan Janet Fogarty 11 Gates Eisenhart Dowson Law Office ofJanet Foqarty & Associates 125 South Market Street, Suite 1200 1126 Hillcrest Boulevard 12 San Jose, California 95113 Millbrae, California 94030 13 Telephone: (408) 288-8100 Telephone: (650) 652-5601 Facsimile: (408) 288-9409 Facsimile: (6so) 652-5604 14 e-mail: sdmgedlaw.com e-mail: jfogartvlawfirmaDyahoo.com 15 Co-Counselfor Plaintiffs John L Fitzgerald 16 Law Offices of John L. Fitzgerald 177 Bovet Road, Suite 600 17 San Mateo, California 94402 Telephone: (415) 689-1209 18 e-mail: john Djlfitzgera1d1aw.com 19 I declare under penalty of perjury that the foregoing is true and correct. Executed February 23, 2023, at Oakland, California. 20 22 Law Offices of Steven B. P1st’, PRoOF Oi SERVWE B E-MAIL Exhibit 102 •1 — —— —. 2/13/90 OflER TO PURCHASE REAL PROPERTY The undersigned Buyer (“Buyer”) offers to purchase from DEP INVESTMENTS, a California general partnership (“Seller”), real property located in the County of San Nateo, State of California, including the improvements and personal property owned by Seller thereon, in accordance with the terms of an agreement which is detailed below. This agreement shall replace all previous agreements between the parties. 1, Recitals and Sale 1.1 seller does hereby agree to sell to Buyer and Buyer does hereby agree to purchase from Seller, a one—half (1/2) tenancy—in—common interest in that, real property (“property”) in Daly City, California, commonly known as 930 King Drive, and more specifically described in exhibit A, attached hereto. 1.2 It is the intent of the parties that Buyer purchase only that interest in the property described on exhibit B; and Seller retain the balance of property, namely the footprint of the bowling alley building and the adjacent parking on King Drive. However, the shcrtness of time does not permit a subdivision of the property before the transfer of title. Consequently, Seller shall convey to Buyer a one-half tenancy—in— common interest; and after transfer of title, Seller shall have the responsibility, at Seller’s reasonable expense, forthwith, with deliberate speed, immediately to subdivide the property, as indicated on exhibit B. Buyer shall cooperate in the subdivision. In the inter!ri, the parties shall share expenses and costs as if the property were subdivided, as more specifically set forth in the Operating Agreement attached hereto marked as exhibit C (i) Prior to subdivision, neither party shall further encumber its tenancy-in—common interest or permit it tc be liened. 1.3 The parties shall maintain mutual interests in the parking facilities of the property as specified in exhibit C (ii) attached hereto. 1.4 Seller represents that Seller is the owner of the property. Various areas of the property have been leased to commercial tenants. A ccmplete list of all tenancies affecting the property is attached hereto marked exhibit D. 0EV 06001 2. purchase Price 2.1 The purchase price to be paid by Buyer to Seller for the one—half (1/2) interest in the property shall be the sum of to be paid by Buyer as indicated below. (a) Upon execution of this agreement, Buyer shall deliver to Seller a check for an initial deposit of — payable to the title company designated below (“escrow holder”) and Seller on acceptance of this offer shall deliver said check to escrow holder along with an eecuted copy of this agreement. Escrow holder shall forthwith lace that deposit in an interest-bearing account with interest to accrue for the benefit of Buyer. (b) Within two (2) business days after Buyer’s - acceptance, Buyer shall increase Buyer’s cash deposit to — including the previously deposited (c) Prior to close of escrow, Buyer shall 4çposit an additional I (minus or plus equitable prorations and costs) in escrow. Buyer shall assume the obligation of paying of the loans encumbering the property as specified below. (d) In summary, the funds making up the purchase price are as follows: (i) Initial deposit (ii) Second deposit (iii) Final Deposit (minus or plus prorations and costs) (iv) Assumption of loan liability Total 3, Financing 3.1 The property is encumbered by a first deed of trust to San Francisco Federal Savings & Loan Association (“SF Federal”), which secures a promissory note of approximately due February 28, 1997, and a second deed of trust to Winchester Savings Bank (“Winchester”), which secures a promissory note of approximately - due 2 DEV 06002 March 27, 1997, Neither loan is in default. The encumbrances total approximately — Buyer shall assume the payments of — of those encumbrances as set — forth below. Seller shall pay the balance of the monthly payments. Seller shall pay toWinchestet . — of the purchase price immediately upon closing of this transaction. The parties anticipate that thereafter the Winchester installment payments will be reduced, ,.3.2ach party shall give the other a deed of trust on its interest in the property as security for the performance of its obligations under this agreement. - 3.3 Six (6) months after the closing date, Buyer shall pay — to Ssller as a principal reduction of Buyer’s -— obligation. The allocation of Buyer’s monthly installment charged to interest shall be reduced accordingly. 3.4 Buyer shall pay to Seller, as trustee, for use by Seller in making payments to the two (2) lenders, that aggregate portion of the lenders’ regular monthly installments which. - bears to the total outstanding obligation to the two (2) lenders at close of escrow. That ratio shall take into consideration the pay down of to Winchester. That ratio shall remain constant until Buyer’s payment of — to Seller; thereafter, the ratio shall be re—calculated and remain constant until Buyer pays off the entire 9 obligation at the time of the refinancing described below. Buyer shall not be obligated to pay any portion of any payment of principal which may be required by the notes of the two (2) lenders other than what may be included in the regular monthly installments. • Any other reduction of the principal owed to the lenders shall not reduce either party’s obligations to pay the specified portion of the monthly loan installments in the ratio set forth above. %‘. 3.5 Buyer’s interest rate shall be an equitable blend of the rate which Seller is obligated to pay the twa (2) lenders and shall fluctuate periodically in accordance with Seller’s obligations. Each party shall pay the same combined interest rate on their respective allocation of principal. 3.6 On or before three (3) years from the cpsing date, Buyer shall pay the balance of its F obligation by eliminating the debt to Winchester and reducing the balance to SF Federal. Simultaneously, Seller shall pay the. remaining balance owed to the first and second lenders and clear all other encumbrances it may have created on Buyer’s parcel except easements and restrictions accepted by Buyer at.closa of 3 0EV 06003 escrow. On demand of Seller, if Seller is uxtable to pay the balance owed to the first and second lenders, Buyer, to enable Seller to clear the encumbrances, shall loan Seller up to on bank terms for three (3) years provided that the aforenentioned loan is secured by adequate collateral (i.e., after it is encumbered by Seller, the encumbrances total no more than — . • percent of its fair market value). NO formal appraisal shall be required unless there is a valuation dispute between the parties. In that event the parties shall agree on an appraiser whose decision shall determine the valuation. If the parties cannct agree on an appraiser on ten (10) days’ notice to the other party, either party may apply to the American Arbitration Association for the appointment of an appraiser. 3.7 .Ehch of the parties is aware that the first and second notes contain due—on—sale clauses. LB All payments by Buyer to the lenders shall be made to Seller as trustee for Buyer. After the close of escrow, and prior to each and every payment to Seller, Seller shall deliver to’Buyer a9statement from the lenders affirming the receipt by lenders of Seller’s previous payment to the lenders. Any non payment to a lender by Seller o.fitsjor Buyer’s, portion of an installment, shall, at Buyer’s option, abate Buyer’s opligation to make its payment to that lender until Seller has cured its non—payment. 3.9 Buyer shall be entitled to the benefits of named insured and on request shall be a earned insured on all insurance policies covering the property until the subdivision is completed. 4. Title 4,1 seller has provided Buyer with a preliminary title report, order number 158 197 (“ETE”) covering the property issued by Founders Title company, 265 Montgomery Street, San Francisco, California 94104 (“escrow holder”) on January 11, 1990. The above title company shall be the escrow holder and title insurer. 4.2 on the closing date, Seller shall deliver to Buyer title to the property subject only to exceptions indicated in 4.3 below, or which are accepted by Buyer at closing. 4.3 Escrow holder shall cause to be issued by a title company a CLTA policy of title insurance, insuring Buyer with a liability equal to the purchase price heretofore mentioned, which policy shall, in addition to the standard printed exceptions and rights of tenants, contain the exceptions designated by Buyer within two (2) business days after Seller’s acceptance. 4 DEV 06004 s. Seller’s Delivery into Escrow 5.1 seller will deliver into escrow: (a) Grant deed conveying one—half (1/2) interest in property to Buyer; (b) Such other instruments or instructions as Seller or the Buyer may reasonably request in order to consummate this transaction; (o) Such other documents required of Seller under the terms of this document; (d) A certification of nonresident alien status executed by Seller; (e) A bill of sale re: any personal property owned by Seller on the property; (f) An assignment of all leases except the lease to classic Bowl; and (g) An estoppel certificate from each tenant whose lease is assigned. 6. Buyer’s Delivery into Escrow 6.1 Buyer will deliver into escrow: (a) The purchase price including the deposits of Buyer plus such additional funds as are required to pay charges ayab1e by Buyer hereunder, less any credit to which Buyer is entitled under the terms hereof. (b) Such other instruments or instructions as escrow holder or the Seller may reasonably request in order to consummate this transaction. (c) Such other documents required of Buyer under the terms of this document. 7. Charges 7,1 The fee of escrow holder shall be paid by Buyer. 7.2 The cost of a CITA title insurance policy shall be paid by Buyer. 7.3 All expenses and charges incurred with the clearance of title and grant deed shall be charged to Seller. 5 . DEV 06005 7.4 Preparation, cost, arid recording charges for the financing and security documents shall be paid by Buyer. 7.5 All documentary transfer taxes shall be paid by Seller. s. prorations and Credits 8.2 Escrow holder shall prorate one—half (1/2) the real estate taxes on the basis of the current year’s assessment. 8.2 Escrow holder shall collect from Seller, from funds accruing to Seller in this escrow, and credit Buyer with a pro rata portion of the monthly rents of the assigned leases, prorated as of the close of escrow. Escrow holder shall further credit Buyer with any security deposit under the leases. 8.3 All prorations shall be made on the basis of actual days elapsed and a 365 day year as of the date of the recording of the deed. 8.4 Seller shall assign all past—due rents from current tenants to Buyer for collection. Buyer shall remit to Seller all past—due rents which Buyer collects after closing, but only to the extent that Buyer’s collection is in excess of the current rents collected. 9. close of Escrow and Possession 9.1 The term “close of escrow” is hereby defined to mean the date when Seller and Buyer have performed their respective obligations under this agreement, all conditions precedent have been satisfied, and the escrow holder has all documents and funds it recuires in order to record the deed to Buyer and deliver funds to Seller. 9.2 The close of escrow shall be February 15, 1990 (“expected closing date”) , or earlier if the parties agree otherwise. Time is of the essence. 10. conditions 10.1 Buyer shall be allowed two (2) business days after acceptance by Seller to further examine the property and consult with Buyer’s own experts (including a soils engineer, general contractor, termite inspector, roofing contractor, and structural engineer) and to examine the rental agreements, accounting records, city and county records ar.d Seller’s other documents relating to the property. 10.2 If for any reason Buyer desires to rescind this transaction, he nay do so, provided he delivers a letter of 6 DEV 06006 rescission to Seller, either by personal service, or by deposit in the U.S. Post Office by certified or registered sail, on or before the two (2) business days noted above, on rescission, Buyer’s deposit will be refunded to Buyer. Escrow costs, if any, shall be divided equally between the parties. 10.3 If no written rescission notice is given as set forth above, it shall be presumed that the condition of the prcperty is satisfactory. 10.4 Upon acceptance of this agreement, Buyer (subject to the rights of tenants and upon notice to Seller) shall have the right to go upon- the property to conduct reasonable tests to ascertain whether the property is suitable for any improvements which Buyer may wish to make. All expenses of such tests shall be borne by Buyer, and Buyer shall be responsible for the repair and restoration of any damage to the property which may be caused by such tests and shall hold Seller harmless from any liability to third parties. U5 11. Is” 11.1 BuS’er acknowledges that Buyer is purchasing the property “as is”; and Buyer confirms that, except as may be otherwise set forth in this agreement, and such other documents which Seller has delivered to Buyer, neither Seller nor Seller’s agents have made any representations or warranties whatsoever, expressed or implied, concerning or with respect to the property, its condition, or the use or development and that Buyer is relying upon Buyer’s own independent investigation in purchasing the property. 12. Notices 12.1 Whenever either party shall desire to give or serve upon the other any notice, demand, request, or other communication, each notice, demand, request, or other communication shall be in writing and shall be given or served personally or by certified or registered mail, postage prepaid, addressed at the address following his signature. 12.2 All mailed notices shall be considered received twenty-four (24) hours after date-stamped by the post office. If any party desires to change the address to which notices or documents are to be delivered to it, such party shall give notice of such change in the manner provided herein. 13. choice of Law and Forum 13.1 This transaction and the rights and remedies of the parties thereunder shall be governed by the laws of the State of California. The parties hereto agree that the proper forum 7 - ‘ DEY 06007 Revised 2/14/90 for the hearing of any matters concerning this transaction and the rights and remedies of the parties hereunder is the San Nateo County, State of California. 13.2 Any dispute or claim in law or equity arising cut of this contract or any resulting transaction shall be decided by neutral binding arbitration in accordance with the rules of the American Arbitration Association, and not by court action except as provided by California law for judicial review of arbitration proceedings. Judguent upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties shall have the right to discovery in accordance with Code of Civil Procedure S 1263.05. The following matters are excluded from arbitration hereunder: (a) a judicial or non—judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage, or real property sales contract as defined in Civil Code § 2965, (b) an unlawful detainer action, (a) the filing or enforcement of a mechanic’s lien, (d) any matter which is within the jurisdiction of a probate court, or (a) an action for bodily injury or wrongful death or for latent or patent defects to which code of Civil Procedure § 337.1 or § 337.15 applies, or (f) filing of a judicial action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the right to arbitrate under this provision. Any dispute or claim by or against broker(s) and/or associate licensee(s) participating in this transaction shall be submitted to arbitration consistent with the provision above only if the broker(s) and/or associate licensee(s) making the claim or against whom the claim is made shall have agreed to submit ft to arbitration consistent with this provision. “NOTICE; BY INITIALLING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE HATTERS INCLUDED IN THE ARBITRATION OF DISPUTES’ PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW, AND YOU ARE GIVING UP ANY RIGHTS you MIGHT POSSESS TO HAVE TEE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN TEE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAl., UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN TEE ARBITRATION OF DISPUTES’ PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.” S 0EV 06008 WE HAVE READ MID UNDERSTM1D TUE FOREGOING AIIm AGREE ‘ro SUDMIW DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN TEE ‘ARBITRATION OF DISPUTES’’ PROVISION TO NEUTRAL MBITRATION.” A” .41 Seller’s initials nuYt9 mi is 14. Suival of Agreements - 14.1 All covenants, representations, warranties, and •.agreesents.contained in this agreement shall- survive the close of escrow, the delivery of documents, and any performance on account of the obligations set forth herein, 15. successors and Assigns 15.1. This agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective hairs, executors, administrators, successors, and assigns. • 16. Assignment 16.1 The rights and obligations of the Buyer may be assigned without the consent of the Seller so long as Buyer’s assignee shall assume, in writing, the obligations of Buyer hereunder in such form and content as required by Seller. Such assignment shall not be deemed to relieve the original Buyer of liability hereunder until this escrow shall close. All representations and warranties given by each party to the other under this document shall be deemed given to and for the benefit of each party’s assignee. Such assi3nnent shall not be valid unless Seller is provided a duplicate original thereof. 17. Amendments 17.1 All amendments and supplements to this Offer to Purchase Real Property must be in writing and executed by each party hereto; however, such execution may be in counterparts and when so executed shall be deemed to constitute one document. Escrow holder shall accept the signature of any one of the Buyers as the signature of all of the Buyers if Buyer consists of more than one person. is. Counternarts 16.1 This agreement nay be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. QV 06009 19. Attorney’s Fees 19.1 If either party becomes involved with the other party in litigation or arbitration arising out of this agreement or the performance thereof, the court in such litigation or arbitration shall award attorney’s fees to the prevailing party. The attorney’s fee award shall not be computed in accordance with any court schedule, but shall be reasonable and such as to fully reimburse all attorneys’ fees actually incurred in good faith, regardless of the size of the judgment, it being the intention of the parties to fully coipensate for all reasonable attorneys’ fees paid pr incurred, in good faith. - 20. Further Msuranoes 20.0 Buyer and Seller agree to execute all documents and instruments and to take all action, including deposit of funds in additIon to such funds as say be specifically provided for herein and as may be required in order to consummate the purchase and sale herein contemplated and shall use their best efforts to accomplish the close of escrow in accordance with the prdvisions hereof. Buyer and Seller shall each diligently and in good faith pursue the satisfaction of any conditions or contingencies. 21. Time of the Essence 21.1 Time is of the essence of this agreement. 22. Entire M’reelnent 22,1 This agreement contains the entire agreement between the parties hereto with respect to the subject ‘matter hereof, and supersedes any prior agreements, negotiations, and other dealings between the parties. This agreement may not be modified or amended except by a written instrument signed by both the Buyer and Seller. 23. Broker 23.1 Seller and Buyer are represented by Skyline Realty Incorporated. At close of escrow, Seller shall pay the aforementioned licensed broJer a co,us,ijssion of . In the event another broker claims a commission, the party responsible for the contact with that claimant shall hold the other party harmless from that claim. 23.2 Broker shall lend Buye; at A per annum interest, all . due and payable in three (3) years from closing or on Buyer’s refinancing of the property, whichever is sooner. That loan 10 0EV 08010 shall be secured by a deed of trust on Buyer’s interest in the property which shall be junior to Seller’s deed of trust. 23.3 Broker shall reimburse Buyer for his attorney’s fees for drafting documents necessary to close this transaction. This excludes matters connected with Buyer’s exchange. 24. Unclear l’it 24.1 If due to circumstances unknown to Seller at the date of the acceptance of this agreement and beyond the reasonable ability of Seller to change, Seller is unable to convey title as pr&ided in-this agreement, Buyer’s sole remedy shall be either to accept the title in its “as is” condition without any adjustment In the purchase price, or to terminate this agreement, in which case the total deposit shall be returned to Buyer. Buyer’s election to accept the title or to terminate this agreement shall be made in writing delivered to Seller within five (5) days after receipt of Seller’s written notice to Buyer of Seller’s inability to deliver the required title. If Buyer fails to give timely written notice of its election to seller, Buyer shall be deemed to have elected to terminate this agreement. 25. Iax-Free Exchanae 25.1 Buyer intends to enter into a tax—free exchange under the provisions of IRC Section 1031. In the event that Buyer enters into a tax—deferred exchange for the real property described herein, each of the parties agrees to cooperate with the other party in connection with such exchange, including the execution of such documents as may be reasonably necessary to effectuate the same. Provided that: (a) the non—exchanging party shall not be cbligated to delay the closing: (b) all additional costs in connection with the exchange should be borne by the exchanging party; (c) the non—exchanging party shall not be obligated to execute any note, contract, or other document providing for any liability in excess of that incurred in this agreement; and the non—exchanging party shall not be required to take title to another parcel of real property. 26. Risk of Loss, Management and Maintenance 26,1 Euyer shall purchase the property as required by this agreement without regard to damage to any improvement after the date of this agreement, provided that the cost tc repair the damage does not exceed If the cost exceeds that sum, Buyer may terminate this agreement by written notice to Seller given within ten (10) business days after Buyer receives written notice of the damage. If Buyer does not SQ terminate, Buyer shall receive the insurance proceeds 11 0EV 06011 collected as a result of the damage, or the proceeds shall be assigned to Buyer at close of escrow, if not then collected. 26.2 Subject to 26.1 above, Seller shall maintain the property and the deliver it to Buyer at close of escrow in the same or better conditicn as the real property is on the date of this offer. 26.3 Subsequent to this offer, Seller shall not enter into any leases, modification of leases, releases of liability, grants of easements, licenses to enter or other agreements substantially affecting the rightsof the owner of the property, without the written consent of Buyer. 27. Expiration of offer This after to Seller will expire unless Seller’s written acceptance is received and Buyer’s written acknowledgment Is made no later than 5:cO p.m., Febr.iary li, 1990. Time: LIflE - ERTIES, INC., . ;yCa ifor i orpora Date: _% ‘‘/0 9’A1 itsF / kcsa Address for Notices: title Properties, Inc. 1906 Lombard Street San Francisco, Ca. 94123 0 12 DEV 06012 ACCEPTANCE The above offer is accepted. DBP INVES NTS, a ge neral 7s p hip Ca4rE!a ‘2 By — Date;__________ Time:____________ Data:__________ Time:___________ Date; Time:___________ By /ttTh rj-eZ7 Date: 2q,9) dfl ‘rime:___________ Date:___________ Time:___________ u4/ / Ak Date: Time:___________ Date:__________ 4. /I%L ,‘-‘ Address for Notices: DBP Investments 464L fW PcK fl p6I-V ‘/r/ C,4 9)71g/7 13 DEV 06013 Ppproved: SKYLINE mLdcflwpt I tkeje\kfng’ I .otf 14 DEV 06014 D3CRIPT loS the land herein referred to Is situated in the State Of California, County of San Ilatec, City of Daly City and is described as fOllows± Lots 1 throu7fl 14 in Block 7, aS shown on that certain map entitled •SEHRAHOHTE UNIT NO. 1’, filed in the office of ttt County Recorder of San Natco County, State of California, °n June 17, 1965 in Book 62 of Maps at page(S) 29. A.?, No.: 091—175—150 JPN 091 017 175 15 A 091—175—180 091 017 175 19 A 091—175—190 - 091 017 175 13 A DEV 06015 EXHIBIT & Co Pwsrr t-*’ t 0 —I-— I CAILP*4 BLVTD. ‘KiNts P&.AZA’ Oat.’1’ CI1Y, c’P. Fr4qc FX$Dñrr 1) LIb(F EXHIBIT C (i) OPERATING AGREEMENT 1. Immediately after close of escrow, each party will collect the rent on its designated parcel. 2. Each party shall pay the hazard and liability insurance other expenses for its own building. 3. The expenses for the parking lot shall be divided equally, including water, electricity, gardening, cleanup maintenance, repairs, and liability insurance. However, each party shall pay the real property taxes without regard to the use of any parcel for parking; and there shall be no allocation of real property taxes for parking. 4. A projected monthly budget for parking lot expenses shall be deposited in a joint bank account and dispersed each month to prospective payees. 5. Property tax shall be paid separately by each party on its own interest in the property, i.e., Buyer shall pay taxes on its one—half (1/2) interest prior to subdivision and on its own parcel after subdivision. (ii) PARKING LOT UsE 1. All available parking spaces on both Seller’s parcel and Buyer’s parcel may be used by both parties for the benefit of the businesses occupying Buyer’s or Seller’s parcel, subject to paragraph 2 below. 2. Nothing in this agreement shall prevent Buyer or Seller or their assigns from constructing additional buildings, or increasing the size of present buildings on their respective parcels, provided that the construction, including its impact on parking, is approved by the City of Daly City. 3. After the subdivision of the property, the parking rights of the parties shall be articulated in a recorded document, which shall set forth the above rights in the form of reciprocal easements in more detail and shall also contain the same attorneys’ fee and arbitration provision as are set forth herein. mld\c:\wp\Litke—je\king- I .otf DEV 06017 81.090 A3CI I LA Eb C. N nn tø ;;t C . -.-LLt.t- o,-t : I I I_L 7.-;-] fl-f-- z—4- TTfltEE--* 4 q -t - Li C I .—t,-- r% .—----- -l .- — - IIk III - -4 --__ s, ti-ii JEZEz $j I ___ - - ——- ,.-- >---“-_: - —- *_____ - z= ____$_IjtJ*2L.___:__ Ii 2 C - C AMENDMENT OF CONTRACT FOR THE SALE AND PURCHASE OF REAL PROPERTY Re: 950 King Drive, Daly City, California THIS ANENDMENT, signed on this day of February1 1990, by the undersigned Buyer, Seller, and Assignee of a certain co1njjact for the sale and purchase of real property, dated February’Yt,. 1990, entered into between Seller and Litke Properties, Inc., on behalf of itself and Phoenix Properties (hereafter collectively “Buyer”). 1. Recitals (a) Buyer entered into a contract to buy a tenancy—in— common interest in the above real property (“Subject Property”). In accordance with paragraph 25 of that contract, the parties agreed to cooperate with each other in effecting an exchange under the provisions of Internal Revenue Code Section 1031. (b) Buyer desires to obtain the Suiject Property in exchange for like—kind property which Buyer has already sold. To facilitate Buyer’s desire, Buyer shall transfer the contract with Seller to Assignee, who shall transfer the Subject Property to Buyer and herself on the same terms and conditions as set forth in the contract between Buyer and Seller described above. 2. Agreement (a) It is understood that the closing of the transaction shall not be delayed by Buyer’s exchange, nor shall Seller incur any additional expense because of the exchange. (b) To permit the performance of the intention of the parties, Buyer assigns and conveys, and Assignee accepts an assignment and conveyance of ll of Buyer’s interest in the Contract of Sale for the Subject Property and all of Buyer’s obligations under the contract for the sale. 0EV 06019 3. Miscellaneous (a) The parties shall cooperate in executing all documents necessary to carry out the above agreement. (b) Any prevailing party in any legal action involving this agreement shall be entitled to recover reasonable attorneys fees incurred. EXECUTED at San Francisco, California, on the date set forth above. BUYER ASSIGNEE: LITKE PROPERTIES JEAN WIRTH, an Unmarried Woman .__._zt-n ct SELLER 0 bY/4/ /4; mtd\c;\wp\ti tke-jsate-pur.mod 4 / ., pE4 ADDENDUN TO CONTRACT FOR THE SALE A1D PURCHASE OF REAL PRdPERTY Re: King Drive, Daly City, dalifornia 1. buyer shall purchase for - percent tenancy—in—comnoj interest in the property pending subdivision of the property. 2. Buyer shall pay real property taxes on its purchase as Lts interest is assessed by the taxing authorities, 3. The escrow shall prorate, and Buyer shall pay on account, the real property taxes for the fiscal halt-year January 1, 1990, to June 30, 1990, by charging Buyer for the balance of the fiscal year after close of escrow for all of the taxes on assessor’s parcels 092—175—150 and 180, and one—half (1/2) of the taxes on 091—175—190. 4. When property taxes are finally determined, any required adjustment shall be made so that the provisions of paragraph 2 ate given full effect, But no adjustment shall be made cf the allocation to Seller in escrow of taxes up to the date of closing of escrow, unless necessary to correct a clerical error or an error by the taxing authority. 5. If the property is sold prior to subdivision, the division of the proceeds shall be in accordance with an appraisal of the value of eaDh party’s parcel as if the subdivision had occurred. Dated LInE PROPERTIES, inc. 0EV 06021 ACCEPTANCE The above offe