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STAFF REPORT
DATE: June 15, 2011 UNFINISHED BUSINESS
SUBJECT: APPROVE AN OWNER PARTICIPATION AGREEMENT WITH PS
HOUSING INVESTORS, LP IN AN AMOUNT NOT TO EXCEED
$1,500,000, AND A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS AUTHORIZING SUBMITTAL OF AN
APPLICATION TO THE CALIFORNIA STATE DEPARTMENT OF
HOUSING AND COMMUNITY DEVELOPMENT FOR FUNDING UNDER
THE HOME INVESTMENT PARTNERSHIPS PROGRAM, FOR THE
ACQUISITION AND REHAB OF A 23-UNIT SENIOR APARTMENT
PROJECT AT 1433 AND 1455 NORTH INDIAN CANYON DRIVE IN
MERGED PROJECT AREA NO. 1
FROM: David H. Ready, City Manager/Executive Director
BY: Community and Economic Development
SUMMARY
PS Housing Investors, LP ("Owner") is a limited partnership, with Global Premier
Development, Inc. of Irvine as the managing partner and The Pate Foundation as the
non-profit partner. The Owner has applied for a 9% Low Income Housing Tax Credit
(LIHTC) allocation from the California Tax Credit Allocation Committee (TCAC) for a
property at 1433 and 1455 North Indian Canyon Drive. The LIHTC application deadline
was March 23rd. The application was successfully submitted with a 5 point reduction for
readiness to proceed, but the application requested the smallest amount of credit out of
any other project submitted in that round. The March 16 commitment was by resolution
and did not include this Agreement. The Project is the acquisition and rehab of 23
apartment units at the southwest corner or Stevens Road and Indian Canyon Drive.
The Agency made a preliminary commitment by resolution of up to $1,500,000, with the
goal of offsetting up to $500,000 of the Agency's commitment through the receipt of
HOME or AHP funds into the project, leaving a commitment of $1,000,000 in a residual
receipts loan. This action also includes authorizing an application of HOME funds on
behalf of the Project through the State of California in the amount of$1,550,000.
Community Redevelopment Agency/City Council Staff Report
June 15, 2011 -- Page 2
PS Housing Partners, LP OPA/Resolution Supporting HOME Application
The Project targets the senior population of Palm Springs; it is very competitive because
of the senior population and the proximity to the hospital, among other amenities. The
unit mix will consist of 19 studio units, 3 one-bedroom units and 1 two-bedroom unit.
Therefore this Project will serve 26 unduplicated persons. Additionally, this Project will
be 100% affordable with rents between 30% - 60% area median income. The Project
will benefit the City by rehabbing an older apartment complex and providing 23
affordable housing units, and will transform this existing older property into a
contemporary apartment complex assisting in the revitalization of the Uptown area. The
proposed rehab project will consist of cosmetic exterior and major interior improvements
to the existing apartment complex.
Major interior improvements will include ADA upgrades, HVAC, water heaters, new
energy efficient appliances, new cabinets and countertops, new vinyl flooring and
carpeting, and bathroom upgrades.
RECOMMENDATION:
1. Adopt Agency Resolution No. "APPROVE AN OWNER PARTICIPATION
AGREEMENT WITH PS HOUSING INVESTORS, LP FOR A FINANCIAL
COMMITMENT FOR A 23-UNIT LOW INCOME ACQUISTION AND REHAB
SENIOR HOUSING PROJECT IN AN AMOUNT NOT TO EXCEED $1,500,000"
2. Authorize the Executive Director or his designee to execute all necessary
documents.
3. Adopt City Council Resolution No. "A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF PALM SPRINGS AUTHORIZING SUBMI I I AL OF
AN APPLICATION TO THE CALIFORNIA STATE DEPARTMENT OF HOUSING
AND COMMUNITY DEVELOPMENT FOR FUNDING UNDER THE HOME
INVESTMENT PARTNERSHIPS PROGRAM; AND IF SELECTED, THE
EXECUTION OF A STANDARD AGREEMENT, ANY AMENDMENTS
THERETO, AND OF ANY RELATED DOCUMENTS NECESSARY TO
PARTICIPATE IN THE HOME INVESTMENT PARTNERSHIPS PROGRAM
4. Authorize the City Manager or his designee to execute all necessary documents.
STAFF ANALYSIS:
Global Premier Development, Inc. and its joint venture partners specialize in the
development of Low Income Housing, under Section 42 of the Internal Revenue Code,
and Tax Exempt Bond financing. GPD was incorporated in 2004 and has been
instrumental in planning and developing almost 2,700 low income housing units
Community Redevelopment Agency/City Council Staff Report
June 15, 2011 -- Page 3
PS Housing Partners, LP OPA/Resolution Supporting HOME Application
throughout the state, and continues to pursue additional opportunities in markets in
California, with project values amounting to nearly $600 million in tax credits. GPD's
management team have planned and developed over 3,400 low income and market
rate units with values worth over $397,900,000.
The proposed rehab project, through a single purpose limited partnership PS Housing
Partners, LP, will consist of 23 units and target the senior population of the City of Palm
Springs. The unit mix will consist of 19 studio units, 3 one-bedroom units and 1 two-
bedroom unit. Therefore this project will serve 26 unduplicated persons. Additionally,
this project will be 100% affordable with rents between 30% - 60% area median income.
While the Developer has asked that the Agency for a permanent commitment of
$1,000,000 toward the project, it has asked that the Agency commit up to $1,500,000 in
Agency set-aside funds to qualify the project for a higher tax credit "tie-breaker" score to
ensure a successful application, with the requirement that the Developer apply for both
HOME and AHP funds (through the Federal Home Loan Bank Board) to offset the
additional $500,000 Agency commitment beyond the $1,000,000. With the additional
commitment by the Agency, the tie-breaker score was 92, almost guaranteeing
success. In the tight capital market, winning tie-breaker scores at TCAC have crept up
from the mid-60's to the mid-high 80's.
The OPA commits up to the $1,500,000, but breaks the commitment into the permanent
$1,000,000 note and a note for $500,000 that would be repaid to the Agency upon the
successful award of HOME or AHP funds in an amount no less than the $500,000. This
resolution authorizes the City to apply to the State for HOME funds on behalf of the
Project for an amount up to $1,550,000.
Global Premier Development, Inc., the managing partner, currently has site control of
this property and through the partnership was expected to close on the acquisition of
the property by June 22, 2011, two weeks later than the expected CTCAC award date
of June 6, 2011. The delay in the formal CTCAC awards has created a crunch for the
project as it occurs after the original closing date for the acquisition.
In addition, the Owner is working through several design issues with the Planning
Department. Once those drawings are completed, the working plans will be submitted
to the City for permits. Once started, the rehabilitation of this project will be completed
within 16 weeks. The property management company will initiate the process of lease-
up for tenants approximately six weeks prior to the completion of construction.
Furthermore, the Owner expects the project to be fully stabilized within 24 weeks of the
construction start date.
Since the property is occupied, the Developer has hired Overland Pacific to undertake a
relocation plan for the property in order to ensure the minimum amount of displacement
of existing tenants. The City and Agency have used this firm in the past on their own
Community Redevelopment Agency/City Council Staff Report
June 15, 2011 -- Page 4
PS Housing Partners, LP OPA/Resolution Supporting HOME Application
relocation issues. Many of those living there today will income-qualify for the new units.
The unit mix/ rent level breakdown is as follows:
Unit size AMI Level Number of Units Proposed Rents*
Studio 30% 2 341
Studio 40% 3 455
Studio 50% 6 568
Studio 60% 7 682
One-bedroom 30% 1 365
One-bedroom 40% 1 548
One-bedroom 60% 1 731
Two-bedroom 30% 1 438
Studio-Manager's Unit 1
*Proposed rents are determined by the rents published by HUD and the utility allowances published by
the local Housing Authority
The proposed Project will benefit the City of Palm Springs by rehabbing an older
apartment complex and providing 23 affordable housing units. The proposed rehab will
transform this existing older property into a contemporary apartment complex assisting
in the revitalization of the City, particularly the Uptown area where it is located. The
Project will consist of exterior and major interior improvements to the existing apartment
complex. For the exterior, the building will receive a thorough power-washing, fresh
paint, new shutters, new doors, new windows, and a new roof. A lift will be installed to
assist residents in accessing the second floor of the two-story building. The
surrounding property will be professionally landscaped, adding to the overall decor and
appearance of the development. Additionally, one of the existing pools would undergo
rehabilitation, with the second being filled in and incorporated into the overall landscape
design which will include a barbeque and picnic area. Major interior improvements will
include ADA upgrades, HVAC, water heaters, new energy efficient appliances, new
cabinets and countertops, new vinyl flooring and carpeting, and bathroom upgrades.
FISCAL IMPACT:
The Agency has the $1,500,000 in fund balance of the Low-Mod Housing Fund and
actually appropriated the funds for this project in the 2011-2012 fiscal year, anticipating
that the OPA would go to the Agency in July. A successful application by the
Developer for HOME or AHP funds, as expected, would decrease the Agency's
permanent commitment to $1,000,000. Because the Agency funds would be used in
the closing on the Property, the full OPA commits up to the $1,500,000 would be
disbursed; however, the commitment is broken into a permanent $1,000,000 note and a
note for $500,000 that would be repaid to the Agency if the Owner is successful in
receiving an award of HOME or AHP funds in an amount no less than the $500,000.
There is also a resolution authorizing the City to apply to the State for HOME funds on
behalf of the Project for an amount up to $1,550,000.
Le
Community Redevelopment Agency/City Council Staff Report
June 15, 2011 -- Page 5
PS Housing Partners, LP OPA/Resolution Supporting HOME Application
At $1,000,000 in commitment, the Agency's subsidy per restricted unit (22) would be
$45,454. Because the project is in a redevelopment project area, all of the units would
count toward the Agency's housing production goals set under redevelopment law and
reported to the State.
John Ray ond, [ irector Dale E. Cook, J
Communi and EconomicD x/olg ment Community Development Administrator
David H. Ready,
City Manager/Executive irector
Attachment: Resolution Approving the Owner Participation Agreement
Owner Participation Agreement
HOME Resolution
RESOLUTION NO.
A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS APPROVING AN OWNER PARTICIPATION
AGREEMENT WITH PS HOUSING INVESTORS, LP TO
PROVIDE ASSISTANCE IN THE ACQUISITION AND
REDEVELOPMENT OF THE SUNSET PALM SENIOR
APARTMENTS, A 23-UNIT APARTMENT PROJECT AT
NORTH INDIAN CANYON DRIVE AND STEVENS
ROAD, INCLUDING AGENCY FINANCIAL
PARTICIPATION NOT TO EXCEED $1,500,000 IN GAP
FINANCING, MERGED PROJECT AREA NO. 1
WHEREAS, the Community Redevelopment Agency of the City of Palm Springs
(the "Agency") has established an affordable housing setaside fund in accordance
with Section 33000 et. seq. of the California Health and Safety Code; and
WHEREAS, the funds are earmarked for the acquisition, construction, or
rehabilitation of affordable housing to benefit the community; and
WHEREAS, Sunset Palm Senior Apartments, proposed for low-income seniors,
was submitted for funding in the March 23, 2011 application round of the California
Tax Credit Advisory Commission for 9% Low Income Housing Tax Credits (LIHTC)
under Article 42 of the Internal Revenue Code; and
WHEREAS, the property developers, PS Housing Investors, LP, through its
managing general partner, Global Premier Development, Inc., sought Agency
financial assistance to cover a portion of the development cost; and
WHEREAS, the property developers will apply for project funding from State
HOME funds and the Affordable Housing Program (AHP) of the Federal Home
Loan Bank Board and and have requested Agency assistance to strengthen the
application; and
WHEREAS, while all of the units are income-restricted under agreements with
CTCAC, the Owners shall agree to restrict, though a Regulatory Agreement
approved as an attachment to the Owner Participation Agreement, the rents on the
proposed units to levels affordable to households with incomes no more than 60%
of Area Median Income (AMI); and
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment
Agency of the City of Palm Springs, as follows:
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SECTION 1. The above recitals are true and correct and incorporated
herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA),
the Community Redevelopment Agency finds as follows:
a) The project has been environmentally assessed and
determined to be a Class 1 Categorical Exemption
under CEQA (Section 15301) as the renovation of an
Existing Facility.
b) Under CEQA, Class 1 consists of the operation, repair,
maintenance, permitting, leasing, licensing, or minor
alteration of existing public or private structures,
facilities, mechanical equipment, or topographical
features, involving negligible or no expansion of use
beyond that existing at the time of the lead agency's
determination. The project involves negligible or no
expansion of an existing use.
SECTION 3. The Owner has proposed acquiring and rehabilitating 23 low-
and very low-income apartment units on the site, including 19
studio units, 3 one-bedroom units, 1 two-bedroom units, and 1
manager's unit. This project helps the City meet its
requirements to provide affordable housing under California
law.
SECTION 4. The OPA effectuates the purposes of the Community
Redevelopment Law as it is intended to eliminate blight and
promote the health, safety and general welfare of the people
of Palm Springs.
SECTION 6. The proposed project is consistent with the Five Year
Implementation Plan and Housing Compliance Plan for the
Palm Springs Community Redevelopment Agency, insofar as
this project will provide additional housing for persons of low-
or moderate income within the City of Palm Springs.
SECTION 7. Based on foregoing reasons, this Owner Participation
Agreement with PS Housing Investors, LP is hereby approved
and incorporated herein by this reference.
SECTION 8. The Executive Director, or his designee, is hereby authorized
to execute on behalf of the Agency the Owner Participation
Agreement and other documents necessary to the
i
d
Agreement, and make minor changes as may be deemed
necessary, in a form approved by Agency Counsel.
PASSED, APPROVED, AND ADOPTED THIS DAY OF JUNE, 2011.
STEVE POUGNET, CHAIRMAN
A i I EST:
James Thompson, City Clerk
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, do hereby certify
that Resolution No. is a full, true and correct copy, and was
adopted at a regular meeting of the Palm Springs City Council on the
day of , 2011, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
J
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS AUTHORIZING SUBMI I 1 AL OF AN
APPLICATION TO THE CALIFORNIA STATE
DEPARTMENT OF HOUSING AND COMMUNITY
DEVELOPMENT FOR FUNDING UNDER THE HOME
INVESTMENT PARTNERSHIPS PROGRAM; AND IF
SELECTED, THE EXECUTION OF A STANDARD
AGREEMENT, ANY AMENDMENTS THERETO, AND OF
ANY RELATED DOCUMENTS NECESSARY TO
PARTICIPATE IN THE HOME INVESTMENT
PARTNERSHIPS PROGRAM
WHEREAS, the California Department of Housing and Community Development (the
"Department") is authorized to allocate HOME Investment Partnerships Program
("HOME") funds made available from the U.S. Department of Housing and Urban
Development ("HUD"). HOME funds are to be used for the purposes set forth in Title II
of the Cranston-Gonzalez National Affordable Housing Act of 1990, in federal
implementing regulations set forth in Title 24 of the Code of Federal Regulations, part
92, and in Title 25 of the California Code of Regulations commencing with section 8200;
and
WHEREAS, on June 1, 2010 the Department issued a 2010 Notice of Funding
Availability announcing the availability of funds under the HOME program (the "NOFA");
and
WHEREAS, PS Housing Investors, LP, a California Limited Partnership comprised of
Global Premier Development, Inc. and The Pate Foundation, requested the City support
a HOME grant application of up to one million five hundred fifty thousand dollars
($1,550,000) to supplement or supplant a portion of the City of Palm Springs
Community Redevelopment Agency's commitment of one million, five hundred thousand
dollars($1,500,000) in Housing Set-Aside funds for the 23-unit multi-family housing
project known as Sunset Palms Apartments, 22 units of which are to be affordable to
low- and very low-income residents; and
WHEREAS, in response to the 2010 NOFA, the City of Palm Springs, a California
Charter City, (the "Applicant") wishes to apply to the Department for, and receive
allocation of, HOME funds in support of the Sunset Palms Apartments project.
NOW, THEREFORE, be it resolved that the City Council of the City of Palm Springs
supports the following;
SECTION 1. In response to the 2010 NOFA, the Applicant shall submit an application
to the Department to participate in the HOME program for an allocation of
funds not to exceed one million five hundred fifty thousand dollars
($1,550,000) for the rehabilitation of a 23-unit multi-family rental complex
with 22 of the units affordable to low- and very low-income residents,
located in the City of Palm Springs.
SECTION 2. If the application for funding is approved, then the Applicant hereby agrees
to use the HOME funds for eligible activities in the manner presented in its
application as approved by the Department in accordance with the
statutes and regulations cited above. The Applicant may also execute a
standard agreement, any amendments thereto, and any and all other
documents or instruments necessary or required by the Department or
HUD for participation in the HOME program (collectively, "the required
documents").
SECTION 3. The City Council of the City of Palm Springs authorizes the City Manager
or his designee to execute, in the name of the applicant, the required
documents.
ADOPTED THIS day of , 2011.
David H. Ready, City Manager
A I I EST:
James Thompson, City Clerk
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that
Resolution No. is a full, true and correct copy, and was duly adopted at a regular
meeting of the City Council of the City of Palm Springs on ,
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Community Redevelopment Agency of the City of Palm Springs
3200 Tahquitz Canyon Way, P.O. Box 2743
Palm Springs, Ca. 92263
Attention: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Agreement is recorded at the request and for the benefit of the Community
Redevelopment Agency of the City of Palm Springs and is exempt from the payment of
a recording fee pursuant to Government Code Section 6103.
REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS
By:
Its: Executive Director
Dated:
OWNER PARTICIPATION AGREEMENT
by and between
Community Redevelopment Agency of the City of Palm Springs,
a public body, corporate and politic
and
PS Housing Partners, LP, a California Limited Partnership
1433 and 1455 North Indian Canyon Drive
Residential Rental Project
Palm Springs, CA 92262
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A I I ACHMENTS
1. Exhibit A: Legal Description of Property
2. Exhibit B: Schedule of Performance/Payment Schedule
I Exhibit C: Budget/Financial Plan
4. Exhibit D: Certificate of Completion
5. Exhibit E: Basic Design
6. Exhibit F: Affordability Restrictions Running with Land.
7. Exhibit G: Promissory Note
1 c:
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT ("Agreement") is entered as of
the Effective Date (defined in this Agreement), between the Community Redevelopment
Agency of the City of Palm Springs, a public body, corporate and politic, ("Agency") and
Global Premier Development, Inc., a California Corporation ("Owner").
RECITALS
The parties enter this Agreement based on the following facts, understandings,
and intentions:
A. By authority granted under California Redevelopment Law (the "Law"), the
Agency has prepared and is responsible for carrying out the Amended and Restated
Redevelopment plan for the Merged Redevelopment Project Area No. 1 (the "Plan").
B. To the extent provided in or allowed by the Law including Cal. H.&S.C. Sections
33334.2 and 33449, as provided by joint resolutions of the Palm Springs City Council
and the Agency, findings and determinations pursuant to Health and Safety Code
Section 33334.2.(g), the Plan and limited to the terms and conditions therein, the
Agency may make improvements upon and/or construct and improve structures in order
to provide housing for persons and families of low or moderate income, including related
on-site and off-site improvements, by variously (1) allowing the use of Housing Set
Aside Funds outside the Project Areas and (2) placing a priority on the use of the
Housing Set Aside Funds from the Project Areas to be used either within or adjacent to
the Project Area or adjacent to certain Project Areas.
C. Agency administers the Low and Moderate Income Housing Fund established
pursuant to Cal. H.&S. C. Sections 33334.2 et seq.
D. The Agency shall permit owner participation in the redevelopment of property in
the Plan area in conformity with the Plan and all owner participation rules and criteria, to
the extent provided by Cal. H.&S.C. Sections 33339, 33339.5, 33380 and 33381.
E. At the effective date for the Agency, Owner shall hold all right, title and interest in
fee to the certain real property described in Exhibit "A" attached hereto and incorporated
herein (the "Property"), including improvements located thereon which shall be
improved by Owner as contemplated by this Agreement and known as the Sunset Palm
Project located at 1433 and 1453 North Indian Canyon Drive, Palm Springs, California
(the "Project"). The Property and Project are located within the territorial jurisdiction of
the Agency.
F. Owner proposes to renovate a residential rental project on the Property
consisting of twenty three (23) residential units. All of the residential units (the
"Affordable Units") are to be rented and preserved as Affordable Rental Housing.
3 � �
G Owner agrees to undertake improvements in accordance with the combined
Performance and Payment Schedule described in Exhibit B attached hereto and
incorporated herein (the "Performance and Payment Schedule").
H. To the extent Housing Set Aside Funds will exceed 50 percent of the cost of
producing the Affordable Units, the Agency has determined based on substantial
evidence, that the use of the Funds is necessary because the Agency or Owner of the
Affordable Units has made a good faith attempt but been unable to obtain commercial
or private means of financing the units at the same level of affordability and quantity.
The Project is not feasible and cannot be completed and restricted to the affordable
rental housing purposes and uses provided under Law and this Agreement absent the
financial support of the Agency.
I. The Property and associated on site and off site improvements are collectively
referred to in this Agreement as the "Improvements" or the "Project," all of which will
directly benefit the Property and the Plan area, cannot otherwise be reasonably paid for
or financed, and are necessary to eliminate blight.
J. Agency is willing to assist Owner's acquisition and reconstruction of the
Affordable Units by making available to Owner as a loan certain Housing Set Aside (Tax
Increment) Funds in the amount of $1,500,000 (the "Loan") upon the terms and
conditions specified this Agreement.
K. The Loan shall be paid in accordance with the schedule set out in Exhibit B to the
Agreement and repaid in accordance with the promissory note a specimen of which is
attached hereto as Exhibit G. The Loan and performance of the affordability and other
covenants and restrictions set forth in this Agreement shall be evidenced by this
Agreement and the Restrictions and Loan deed of trust which shall be recorded against
and run with and encumber the Property.
L. The Project is categorically exempt under Section 15301 of the California
Environmental Quality Act as a renovation of an existing residential property without the
creation of new environmental impacts and was determined to have or cause no
adverse or reportable conditions or effects pursuant to CEQA.
M. Agency has further determined this Project is in the best interests of, and will
materially contribute to, Plan implementation. Further, Agency has found the Project: (i)
will have a positive influence in the Plan Area, and surrounding environs, (ii) is in the
vital and best interests of Agency and the health, safety, and welfare of City residents,
(iii) complies with applicable federal, state, and local laws and requirements, (iv) will
help eliminate blight, (v) will improve and preserve the community's supply of low and
moderate income housing available at affordable rent, as defined by Cal. H.&S.C.
Sections 50052.5 and 50053, to persons and families of low or moderate income, as
defined in Cal. H.&S.C. Section 50093 of Code; (vi) will be available to meet the
replacement housing provisions in Cal. H.&S.C. Section 33413; (vii) will apply funds
4 9
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solely within the respective Plan areas except to the extent otherwise provided herein
and allowed by Law; (viii) all planning and administrative expenses incurred in pursuit
hereof are necessary for the production, improvement, or preservation of low and
moderate income housing; (ix) will comply with all owner participation rules and criteria
of Agency and the Plan; and (x) will comply with any and all applicable review and other
requirements of the City's Historical Preservation Commission.
O. The Owner and the Agency have determined that this Agreement is not subject
to Article XXXIV of the California Constitution.
AGREEMENT
1. DEFINITIONS. Besides definitions contained elsewhere in this Agreement, the
definitions in this Section will govern the construction, meaning, application and
interpretation of the various terms used in this Agreement.
1.1 "ADA" means the Americans with Disabilities Act of 1990.
1.2 "Affordability Period" means a period of fifty-five (55) years commencing
from the date Agency records the Certificate of Completion.
1.3 "Affordable Rental Housing" or Affordable Units means the Units available
at affordable rent, as defined by Cal. H.&S.C. Section 50052.5 (4), to
persons and families of low and moderate income, as defined in Cal.
H.&S.C. Section 50093 of Code, consistent with Recital F above which
requirements shall be enforceable by covenants running with the land. As
used in this Agreement, the term "Affordable Low Income Rent" shall
mean annual rentals whose amount does not exceed the maximum
percentage of income that can be devoted to rent as set forth by Health &
Safety Code Section 50053, or its successor, which is currently thirty
percent (30%) of sixty percent (60%) of the Riverside County Median
Income adjusted for the family size appropriate for the Unit and the term
"Affordable Moderate Income Rent" shall mean annual rentals whose
amount does not exceed the maximum percentage of income that can be
devoted to rent as set forth by Health & Safety Code Section 50053, or its
successor, which is currently thirty percent (30%) of one-hundred-ten
percent (110%) of the Riverside County Median Income adjusted for the
family size appropriate for the Unit.
1.4 "Agency" means the Community Redevelopment Agency of the City of
Palm Springs, a public body, corporate and politic, organized and existing
under the Law, and any assignee of or successor to its rights, powers and
responsibilities.
1.5 "Agreement" means this Owner Participation Agreement.
5
1.6 "Budget" means the Budget/Financial Plan for the Project attached hereto
and incorporated herein as Exhibit "C" (the "Budget").
1.7 "Certificate of Completion" means that Certificate issued in the form
attached as Exhibit T" to Owner by Agency evidencing completion of the
Project for purposes of this Agreement.
1.8 "Conditions Precedent of Agency" means the conditions precedent to the
effectiveness of this Agreement against the Agency.
1.9 "Day" whether or not capitalized, means a calendar day, unless stated
otherwise.
1.10 "Restrictions" means the affordability restrictions contained in this
Agreement and Exhibit F thereto, containing all conditions, covenants,
and restrictions required by the Law, any other applicable laws and
regulations, the Plan, and this Agreement, running with the Property and
the Affordable Units thereon and burdening such for the Affordability
Period.
1.11 "Default" means a party's failure to timely perform any action or covenant
required by this Agreement following notice and opportunity to cure.
1.12 "Director" means the Executive Director of Agency.
1.13 "Entitlements" mean all permits and fees that the City, County of
Riverside, and other governmental agencies with jurisdiction over the
Project, the Improvements or the Property may require.
1.14 "Effective Date" means the date of complete execution of the Agreement
following City Council approval thereof.
1.15 "Environmental Laws" means any federal, state, or local law, statute,
ordinance or regulation pertaining to environmental regulation,
contamination or cleanup of any Hazardous Materials or waste including,
without limitation, any state or federal lien or "super lien" law, any
environmental cleanup statute or regulation, or any governmentally
required permit, approval, authorization, license, variance or permission.
1.16 "Funding Source" means the Loan and other funding sources secured by
Owner to construct the Improvements.
1.17 "Financing Plan" means the Budget including sources and uses of funds
sufficient for Owner to complete the Improvements according to the
Performance and Payment Schedule.
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1.18 Reserved.
1.19 "Hazardous Materials" means any substance, material, or waste which is
or becomes regulated by any local governmental authority, the State of
California, or the United States Government including, without limitation,
any material or substance which is: (a) defined as a "hazardous waste,"
"extremely hazardous waste," or "restricted hazardous waste" under
Sections 25115, 25117, or 25122.7, or listed pursuant to Section 25140 of
the California Health and Safety Code, (b) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code,
(c) defined as a "hazardous material," "hazardous substance," or
"hazardous waste" under Section 25501 of the California Health and
Safety Code, (d) defined as a "hazardous substance" under Section 25281
of the California Health and Safety Code, (e) petroleum, (f) friable
asbestos, (g) polychlorinated byphenyls, (h) listed under Article 9 or
defined as "hazardous" or "extremely hazardous" under Article 11 of Title
22, California Administrative Code, (1) designated as "hazardous
substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C.
§1317), (j) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq., or (k)
defined as "hazardous substances" pursuant to Section of the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U,S.C. §9601, et seq.); provided, however, hazardous materials
shall not include: (1) construction materials, gardening materials,
household products, office supply products or janitorial supply products
customarily used in the construction, maintenance, rehabilitation, or
management of residential rental housing or associated buildings and
grounds, or typically used in household activities, in a manner typical of
other residential rental housing developments which are comparable to
the Improvements; and (2) certain substances which may contain
chemicals listed by the State of California pursuant to Health and Safety
Code Sections 25249.8 et seq., which substances are commonly used by
a significant portion of the population living within the region of the
Property, including, but not limited to, alcoholic beverages, aspirin,
tobacco products, NutraSweet and saccharine.
1.20 "Household" means one or more persons occupying an Affordable Unit.
1.21 "Housing Set-Aside Funds" means those California Health and Safety
Code Section 33334.2 monies held and administered by Agency a portion
of which shall be made available as the Loan to Owner for eligible costs
and expenses incurred by Owner in constructing the Improvements in
such amounts, and upon such terms and conditions specified in this
Agreement.
7 f
1.22 "Improvements" mean the construction of the Affordable Units and other
units that Owner will complete on the Property as part of the Project,
including associated fencing, and landscaping improvements.
1.23 "Law" means the Community Redevelopment Law of the State (California
Health and Safety Code Sections 33000 et seq.).
1.24 "Loan" means the principal sum of $1,500,000 provided by Agency to
Owner as a loan, upon the terms and conditions set forth in this
Agreement and the Promissory Note(s) attached hereto as Exhibit G to be
secured by a no worse than [3rd position] deed of trust lien against the
Property. If the deed of trust securing the Promissory Note is recorded
prior to the recordation of the deed or deeds of trust securing the other
Funding Sources consistent with the Financing Plan, the Agency shall
subordinate such deed of trust to such other deed(s) of trust.
1.25 "Loan Documents" are collectively this Agreement and all exhibits and
attachments thereto any deed of trust given as security, as they may be
amended, modified or restated from time to time.
1.26 "Material Change" means a change, modification, revision or alteration to
the Loan Documents that significantly deviates from those previously
approved by the Agency, provided that fully funded change(s) which do
not result in a change in the number or type (i.e. residential, affordable) of
Units and/or an increase in the total Loan funding provided in this
Agreement shall not constitute Material Change(s).
1.27 "Owner" means Global Premier Development, Inc. or an affiliated
company in which it is a Member, Managing Member, or Principal.
1.28 "Plan" means the Redevelopment Plan for the Merged Project Area No. 1
1.29 "Project" means the rehabilitation of 23 residential Units on the Property,
of which all Units shall be Low Income Housing.
1.30 "Project Area" means the Merged Project Area No. 1
1.31 "Project Completion Date" means the date that Agency shall have
determined the Project has reached completion in accordance with the
plans and specifications in the Performance and Payment Schedule, as
evidenced by Agency's issuance of a Certificate of Completion.
1.32 "Property" means the real property described in Exhibit "A".
1.33 "Release of Restrictions" means a release of those covenants, conditions
and restrictions contained in this Agreement.
8 1 �
1.34 "Performance and Payment Schedule" means the schedule attached as
Exhibit "B," setting forth the dates and times by which the parties must
accomplish certain obligations under this Agreement. The parties may
revise the Performance and Payment Schedule from time to time on
mutual written agreement of Owner and Agency, but any delay or
extension of the Completion Date is subject to the requirements in this
Agreement.
1.35 "Security Financing Interest" means a security interest which Owner
grants in the Property and the Improvements thereon before the Agency
issues and records a Release of Restrictions.
1.36 "Unit" mean a residential unit constituting the Project.
2. CONDITIONS PRECEDENT TO AGENCY'S OBLIGATION TO PERFORM
UNDER THIS AGREEMENT. The following are conditions precedent to
Agency's obligation to perform under this Agreement. Until each and all of the
conditions are satisfied, Agency is not obligated to take any action, or provide
any funding under this Agreement. Agency, in writing by its authorized
representative, may waive any condition or agree to extend the time for
satisfaction of any condition set forth in this Section 2. Agency may terminate
this Agreement as provided herein for the failure of a condition.
2.1 Owner shall pay for and provide a title report, recorded deed or other
evidence acceptable to Agency that Owner owns the Property.
2.2 Owner has entered into, and provided Agency copies of agreements with
any and all funding sources and the general contractor for the Project. All
such funding source agreements shall contain a provision whereby the
party(ies) to each such agreement, other than Owner, agree to make
reasonable efforts to (i) notify Agency immediately of any event of default
by Owner under such agreement; (ii) notify Agency immediately of
termination or cancellation of such agreement; and (iii) provide Agency,
upon Agency's request, an estoppel certificate certifying that such
agreement is in full force and effect and Owner is not in default under such
agreement.
2.3 Owner has submitted evidence that the combined monies from the
Funding Sources are not less than the greater of a total development cost
of $ or the amount which Agency determines is necessary to
complete the Project. If Agency determines that said funds are not
sufficient to complete the Project, Owner may satisfy this condition as
agreed to by Owner and Agency in writing.
9 19
2.4 Owner will submit its Financing Plan to the Agency for review and
acceptance provided that the purpose of Agency's review is solely to
confirm Owner has sufficient funds available to complete the
Improvements and maintain Project as this Agreement requires.
After Agency accepts the Financing Plan, Owner will not make any
Material Change in the Financing Plan without first submitting such
change to Agency for review and acceptance, which shall not be
unreasonably withheld, delayed or conditioned.
2.5 Owner, at Owner's expense, shall have investigated and determined all
environmental, soil, seismic, and other surface and subsurface conditions
of the Property and the suitability of such conditions for the Project.
Owner's responsibility and due diligence includes, but is not limited to,
determining the presence of Hazardous Materials. Both Owner and
Agency will promptly give the other copies of all reports and test results.
Owner will indemnify, defend, and hold Agency harmless from any
damages or claims arising out of Owner's inspections and tests.
2.6 Should Owner's property assessment/inspection reveal any Hazardous
Materials or environmental conditions requiring remediation, Owner will
promptly notify Agency. Not later than ten (10) days from and after such
notice, Owner shall, at its sole cost and expense, commence to make
required submittals, develop required remedial action plans, and thereafter
pursue remediation activities as to such Hazardous Materials or
environmental conditions and to diligently prosecute such to completion as
required by applicable federal, state and local law and in a manner and
according a reasonable time frame agreeable to Agency. Without limiting
the foregoing, any remediation will be performed pursuant to a remedial
action plan, if needed, approved by the governmental agencies having
jurisdiction and will be performed according to applicable environmental
laws and governmental requirements.
2.7 Owner shall not be in default of this Agreement and all representations
and warranties of Owner contained herein shall be true and correct in all
material respects.
2.7.1 Owner will have signed and delivered all documents required
hereunder.
2.7.2 Owner will have received all land use and development approvals,
variances, permits and the like required by this Agreement.
2.8 Owner will have provided proof of insurance as required by this
Agreement.
10 20
2.9 This Agreement shall have been recorded with the Riverside County
Recorder's Office.
3 . OWNER OBLIGATIONS AFTER SATISFACTION OF CONDITIONS
PRECEDENT. The following obligations of Owner will run with the land and survive this
Agreement:
3.1 Owner will take all reasonable precautions to prevent the release into the
environment of any Hazardous Materials in, on or under the Property in
violation of applicable laws or regulations. Owner will comply with all
governmental requirements with respect to Hazardous Materials. In
addition, Owner shall install and use equipment and implement and follow
procedures that are consistent with reasonable standards for the
disclosure, storage, use, removal and disposal of Hazardous Materials.
3.2 Owner will notify the Agency and give Agency a copy of all environmental
permits, disclosures, applications, entitlements or inquiries relating to the
Property including, without limitation, notices of violation, notices to
comply, citations, inquiries, cleanup or abatement orders, cease and
desist orders, reports filed pursuant to self-reporting requirements and
reports filed or applications made pursuant to any governmental regulation
relating to Hazardous Materials. Within 3 days after each incident, Owner
will report to Agency any unusual or potentially important incidents
respecting the environmental condition of the Property.
If a release of any Hazardous Materials into the environment occurs,
Owner will, as soon as possible after the release, furnish Agency with a
copy of any reports relating thereto and copies of all correspondence with
governmental agencies relating to the release. Upon request, Owner will
furnish Agency with a copy of any other environmental entitlements or
inquiries relating to or affecting the Property including, without limitation,
all permit applications, permits and reports, even reports and other
matters.
3.3 From the Effective Date of this Agreement, Owner shall indemnify, hold
harmless and defend Agency, City and each of their officers, officials,
employees, agents and volunteers from any and all claim, action, suit,
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense (including, without limitation, reasonable attorneys'
fees), arising out of (i) the presence, release, use, generation, discharge,
storage or disposal of any Hazardous Materials on, under, in or about the
Property, or the transportation of any Hazardous Materials to or from the
Property, or (ii) the violation, or alleged violation, of any statute, ordinance,
order, rule, regulation, permit, judgment or license relating to any use,
generation, release, discharge, storage, disposal or transportation of
Hazardous Materials on, under, in or about, to or from, the Property. This
11
indemnity will include, without limitation, any damage, liability, fine,
penalty, parallel indemnity after closing, cost or expense arising from or
out of any claim, action, suit or proceeding for personal injury (including
sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic
loss, damage to the natural resource or the environment, nuisance,
contamination leak, spill, release or other adverse effect on the
environment. Owner's obligations under the preceding sentence shall
apply regardless of whether Agency, City or any of their officers, officials,
employees, agents or volunteers are negligent, but shall not apply to any
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency,
fine, penalty, punitive damage, or expense caused solely by the gross
negligence, or caused by the willful misconduct, of Agency, City or any of
their officers, officials, employees, agents or volunteers. This section shall
survive expiration or termination of this Agreement.
3.4 The status and qualifications of Owner are of particular concern to
Agency. From the Effective Date of this Agreement until the Restrictions
expire, no voluntary or involuntary successor-in-interest of Owner will
acquire any rights or powers under this Agreement, provided that the
parties acknowledge the Owner shall hold the Affordable Units for rental
as Affordable Rental Housing as provided in this Agreement.
Notwithstanding anything to the contrary herein, Owner shall have the
right to transfer ownership of the Property to another person or entity
having experience in the ownership and operation of Affordable Rental
Housing, as reasonably determined by Agency, which approval shall not
be unreasonably withheld, delayed or conditioned.
4. DEVELOPMENT OF THE PROPERTY.
4.1 Except as set forth in this Agreement, before Owner begins constructing
the Improvements or undertakes any other work of improvement on the
Property, Owner, at its own cost and expense, will secure all land use and
other entitlements, permits, and approvals that Agency or any other
governmental agency with jurisdiction over the Project requires for
construction of the Project. Without waiver or limitation, Owner will secure
and pay all costs, charges and fees associated with, the following:
4.1.1 All permits and fees that the City, County of Riverside, and
other governmental agencies with jurisdiction over the Project, the
Improvements or the Property may require.
4.1.2 ADA/Barriers to the Disabled. The Project shall comply with
all applicable federal, state and local accessibility requirements.
For purposes of this Agreement the number of accessible dwelling
units shall be [zero (0)] unless a greater number of units shall be
12 w �
required by law, whereupon such greater number of units shall
apply.
4.2 Basic Design. Owner has submitted a general or basic concept drawing
to Agency, which Agency has approved, and a copy of which is attached
as Exhibit "E" (the "Basic Design"). Owner will complete the
Improvements on the Property in one phase, according to the Basic
Design, and the plans, drawings, and documents that Owner submits to
Agency. Owner shall carry out construction of the Project including the
Improvements in accordance with all applicable local, state and federal
laws, codes, ordinances and regulations, including without limitation all
applicable state and federal labor standards.
4.3 Books and Records. Owner shall make available for examination at
reasonable intervals and during normal business hours, all books,
accounts, reports, files and other papers or property with respect to all
matters covered by this Agreement, and shall permit Agency to audit,
examine and make excerpts or transcripts from such records. Agency
may audit any conditions relating to this Agreement at Agency's expense,
unless such audit shows a materially significant discrepancy in information
reported by Owner to Agency in which case Owner shall bear the cost of
such audit. Owner shall also reasonably cooperate with and assist the
Agency in Agency's compliance with any applicable audit requirements of
the California Redevelopment Law including California Health and Safety
Code Sections 33080 and 33080.1. This section shall survive for a period
of four years after the expiration or termination of this Agreement.
4.4 Audit. Owner shall be accountable to Agency for all Loan funds disbursed
to Owner pursuant to this Agreement. Owner will cooperate fully with
Agency and the State in connection with any interim or final audit relating
to the Project that may be perfotmed. Owner will maintain accurate and
current books and records for the Project using generally accepted
accounting principles. Owner agrees to maintain books and records that
accurately and fully show the date, amount, purpose and payee of all
expenditures financed with Loan funds and to keep all invoices, receipts
and other documents related to expenditures financed with Loan funds for
not less than four (4) years after the fiscal year in which such expenditures
are incurred. For purposes of this section, "books, records and
documents" include, without limitation, plans, drawings, specifications,
ledgers, journals, statements, contracts/agreements, funding information,
purchase orders, invoices, loan documents, computer printouts,
correspondence, memoranda and electronically stored versions of the
foregoing. This section shall survive for a period of four years after the
expiration or termination of this Agreement.
13
4.5 Owner shall cause the issuance of all necessary discretionary
governmental permits, approvals and entitlements, close any implicated
funding or other escrow and begin/complete construction of the
Improvements according to the Performance and Payment Schedule.
4.5.1 Project Completion. Agency, acting through and in the
discretion of its Director, may extend the completion date of the
Project for that period of time that Agency, in its reasonable
discretion, determines necessary to overcome any delay if and to
the extent such delay is due to a cause which is beyond Owner's
reasonable control, and if Owner could not, with reasonable
diligence, have foreseen and avoided such cause for delay. Such
causes include, without limitation, acts of God, unusually severe
weather or flood, war, terrorism, riot or act of the public enemy,
labor disputes, unavoidable inability to secure labor, materials,
supplies, tools or transportation, or acts or omissions of any
governmental authority having jurisdiction. Agency will not extend
the completion date for acts or omissions occurring through the
fault of Owner, or for acts of Agency permitted or contemplated by
this Agreement. An extension of time as provided in this
subsection will be Owner's sole remedy for any delays in the
Performance and Payment Schedule the Project completion date.
As a condition precedent to any extension requested by Owner,
Owner will give the Agency notice within ten (10) days after any
cause for delay occurs, stating the cause and the additional time
Owner anticipates needed to complete the Project. Any extension
by Agency must be in writing and signed by the Director or the
Director's designee, which approval shall not be unreasonably
withheld, delayed or conditioned.
4.6 Subject to the terms of this Agreement, the Loan shall be disbursed to
Owner according to the Performance and Payment Schedule. All Loan
funds shall be used solely for costs of the Project and Improvements.
4.7 Certificate of Completion. Owner will notify Agency when Owner deems
the Project complete. Within ten (10) business days after such notice,
Agency will inspect the Improvements. When Agency reasonably
determines Owner has completed the Improvements as required in this
Agreement, the Plan, and the Law, Agency will furnish Owner with the
Certificate of Completion. Agency will not unreasonably delay, condition
or refuse to issue the Certificate of Completion. The recorded Certificate
of Completion will be a conclusive determination that Owner has
satisfactorily completed the Improvements required under this Agreement.
Any parties then owning or subsequently purchasing, leasing or otherwise
acquiring any interest in the Property will not (because of that ownership,
14
purchase, lease or acquisition) after the recording, incur any obligation or
liability under this Agreement for constructing the Improvements, but will
take such interest in the Property subject to the continuing covenants set
forth in this Agreement.
4.7.1 If Agency determines not to furnish the Certificate of
Completion, in accordance with Section 4.7 above, Agency will give
Owner a written notice stating why Agency has decided not to issue
the Certificate of Completion, or why it is delaying the issuance,
and the reasonable actions that, in Agency's opinion, Owner must
take before Agency can issue the Certificate of Completion.
Agency's failure to give the notice within ten (10) days, however,
will not cause the Owner to be entitled to the Certificate of
Completion. The Certificate of Completion is not a notice of
completion as referred to in Section 3093 of the California Civil
Code.
4.7.2 The following are conditions precedent to Agency issuing
the Certificate of Completion, and each submission will be in form
and substance satisfactory to the Director: Evidence that the time
to file all mechanics' liens or material men's liens has expired and
any such liens recorded against the Property or Improvements
have been released or, if not released, sufficiently bonded (i.e.
150%) against as required by law.
4.8 To the extent economically feasible, consistent with the requirements of
any permitted encumbrance, or as otherwise approved by Agency or
provided in the Agreement, if any building or improvement on the Property
is damaged or destroyed by an insurable cause, Owner shall, at its cost
and expense, diligently undertake to repair or restore said buildings and
improvements consistent with the Basic Design for the Project. Such work
or repair shall commence within ninety (90) days after the insurance
proceeds are made available to Owner and shall be complete within one
(1) year thereafter. All insurance proceeds collected for such damage or
destruction shall be applied to the cost of such repairs or restoration and,
if such insurance proceeds shall be insufficient for such purpose, Owner
shall make up the deficiency.
4.9 Inspections. Owner shall permit, facilitate and require its contractors to
permit and facilitate observation and inspection of the Project by Agency
during reasonable business hours and upon reasonable notice for the
purpose of determining compliance with this Agreement.
4.10 If and to the extent that development of the Project results in the
permanent or temporary displacement of residential tenants, homeowners
or businesses, Owner shall comply with all applicable local, state and
15 .� ,j
federal statutes and regulations with respect to relocation planning,
advisory assistance and payment of monetary benefits. Owner shall be
solely responsible for payment of any relocation benefits to any displaced
persons and any other obligations associated with complying with said
relocation laws. For purposes of this Section 4.10 the parties
acknowledge that as of the Effective Date the Project Property is vacant
and unoccupied.
4.11 Reporting Requirements. Owner shall submit to Agency the following
reports:
4.11.1 Annual Reports. Annually, beginning in the year
following Agency's issuance of the Certificate of Completion, and
continuing until the expiration of this Agreement, on such dates as
are agreeable between the parties and consistent with all federal
and state reporting requirements applicable to the Project, Owner
shall submit an annual report to Agency, in a form approved by
Agency. Such annual report shall include for each of the
Affordable Units: the rent, the annual income and the family size
of the Household occupying the Affordable Unit. Such annual
report shall also state the date the tenancy commenced for each
Affordable Unit, certification from an officer of Owner that the
Affordable Unit is in compliance with the Affordable Rental
Housing requirements, and such other information the Agency
may be required by Law to obtain. Owner shall provide any
additional information reasonably requested by the Agency
provided such information is directly related to Owner's
compliance with this Agreement.
4.11.2 Annual Proof of Insurance. Annually, beginning in the
year following Agency's issuance of the Certificate of Completion,
and continuing until the expiration of the Agreement, Owner shall
submit proof of insurance as required by this Agreement.
4.12 All Leases used to rent the Affordable Units are subject to the following:
4.12.1 Annual Income Certification and Reporting. Owner
shall include in leases for all Affordable Units provisions which
authorize Owner to immediately terminate the tenancy of any
Household one or more of whose members misrepresented any
fact material to the Household's qualification as a Household for
low to moderate income family. Each such lease shall also
provide that the Household is subject to annual certification, and
that, if the Household's annual income increases above the
applicable limits for low to moderate income family such
Household's rent may be subject to increase to the amount
16 7G
payable by tenant under federal, state or local law, except that,
consonant with the Law, tenants of the Affordable Units that have
been allocated to low income housing tax credits by a housing
credit agency pursuant to section 42 of the Internal Revenue Code
of 1986 (26 U.S.C. 42) must pay rent governed by Section 42.
4.12.2 The leases for the Affordable Units shall provide that
if the Project is subject to state or federal rules governing low
income housing tax credits, the provision of those rules regarding
continued occupancy by, and increases in rent for, Households
whose incomes exceed the eligible income limitation shall apply in
place of the provisions set forth in subsection 4.11.1 above.
4.13 With respect to the Project, Owner shall comply with the following:
4.13.1 Except to any extent otherwise provided in this
Agreement, Owner is specifically responsible for all management
functions with respect to the Affordable Units including, without
limitation, the selection of tenants, certification and re-certification
of Household size and income, evictions, collection of rents and
deposits, maintenance, landscaping, routine and extraordinary
repairs, replacement of capital items and security. Agency shall
have no responsibility for management of the Affordable Units of
the Project.
4.14 Owner covenants and agrees the Affordable Units shall constitute
Affordable Rental Housing during the entire Affordability Period. If Owner
fails to comply the requirement to lease the Affordable Units only to
qualified Households during the Affordability period, Agency shall be
entitled to enjoin Owner from leasing the Affordable Units in the Project,
as Owner acknowledges that damages are not an adequate remedy at law
for such breach.
5. INDEMNITY; INSURANCE
5.1 Owner shall indemnify, hold harmless and defend Agency, City and each
of their officers, officials, employees, agents from any and all loss, liability,
fines, penalties, forfeitures, costs and damages (whether in contract, tort
or strict liability, including but not limited to personal injury, death at any
time and property damage) incurred by Agency, City, Owner, or any other
person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to
have arisen directly or indirectly out of Owner's performance of this
Agreement. Owner's obligations under the preceding sentence shall not
apply to any loss, liability, fines, penalties, forfeitures, costs or damages
17 a�
caused solely by the gross negligence, or caused by the willful
misconduct, of Agency, City or any of their officers, officials, employees,
agents or volunteers. This section shall survive expiration or termination
of this Agreement.
Throughout the life of this Agreement, the Owner shall pay for and
maintain in full force and effect all policy(ies) of insurance required
hereunder with (an) insurance company(ies) either (1) admitted by the
California Insurance Commissioner to do business in the State of
California and rated not less than "A-VII" in Best's Insurance Rating Guide,
or (2) authorized by the Agency's Risk Manager or his/her designee. The
following policies of insurance are required:
5.2.1 Until the Certificate of Completion is recorded,
Builders Risk (Course of Construction) insurance in an
amount equal to the completed value of the project with no
coinsurance penalty provisions.
5.2.2. Following the recording of the Certificate of
Completion, Fire and Extended Coverage Insurance against
loss or damage to the project by fire and lightning, with
extended coverage for vandalism and malicious mischief
and sprinkler system leakage. Such extended coverage
insurance will, as nearly as practicable, cover loss or
damage by explosion, windstorm, riot, aircraft, vehicle,
smoke and such other hazards as are normally covered by
such insurance. Such insurance shall be in an amount equal
to the replacement cost (without deduction for depreciation)
of the project with no coinsurance penalty provisions.
All policies of insurance required hereunder shall be endorsed to provide
that the coverage shall not be cancelled, non-renewed, reduced in
coverage or in limits except after 30 calendar day written notice has been
given to Agency. Upon issuance by the insurer, broker, or agent of a
notice of cancellation, non-renewal, or reduction in coverage or in limits,
Owner shall furnish Agency with a new certificate and applicable
endorsements for such policy(ies). In the event any policy is due to expire
during the term of this Agreement, Owner shall provide a new certificate,
and applicable endorsements, evidencing renewal of such policy not less
than 15 calendar days prior to the expiration date of the expiring policy.
The Builders Risk (Course of Construction) and Fire and Extended
Coverage insurance policies shall be endorsed to name Agency as a loss
payee.
18 � „
Owner shall furnish Agency with all certificate(s) and applicable
endorsements effecting coverage required hereunder. All certificates
and applicable endorsements are to be received and approved by the
Agency's Risk Manager or his/her designee prior to Agency's execution of
this Agreement.
If at any time Owner fails to maintain the required insurance in full force
and effect, Owner shall immediately discontinue all work under this
Agreement until Agency receives notice that the required insurance has
been restored to full force and effect and that the premiums therefore have
been paid for a period satisfactory to the Agency. Owner's failure to
maintain any required insurance shall be sufficient cause for Agency to
terminate this Agreement.
The fact that insurance is obtained by Owner shall not be deemed to
release or diminish the liability of Owner, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to
indemnify Agency, City and each of their officials, officers, employees,
agents and volunteers shall apply to all claims and liability regardless of
whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by
Owner. Approval or purchase of any insurance contracts or policies shall
in no way relieve from liability nor limit the liability of Owner.
Upon request of Agency, Owner shall immediately furnish Agency with a
complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underwriter to
be a true and correct copy of the original policy. This requirement shall
survive expiration or termination of this Agreement.
5.3 Owner will obtain and deliver payment and performance bonds issued by
an insurance company admitted in California in good standing as a surety
and meeting the criteria for Owner's other insurance under this
Agreement, each bond in an amount at least equal to 100% of Owner's
estimated construction costs, provided that the Agency hereby waives any
requirement for said bonds at all time during which Owner is in full
compliance with this Agreement and the Project remains fully funded.
5.4 Until Agency issues the Certificate of Completion Agency will have access
to the Property, after reasonable notice to the Owner (except in
emergencies), without charge or fee, during normal construction hours, for
purposes of assuring compliance with this Agreement. Agency
representatives will comply with all safety rules while on the Project or the
Property.
5.5 Owner will design and construct the Improvements, and after that, prior to
any allowable transfer or sale thereof, Owner will maintain the Property
19 `' j
according to all applicable laws including, without limitation, all applicable
state labor standards, Agency zoning and development standards,
building, plumbing, mechanical and electrical codes, all provisions of the
Palm Springs Municipal Code and all applicable access requirements.
Agency makes no representation about which, if any, of such laws,
ordinances, regulations or standards apply to development of the Project.
Owner acknowledges that Owner, not Agency, is responsible for
determining applicability of and compliance with all local, state, and
federal laws including, but not limited to, any applicable provisions of the
California Labor Code, Public Contract Code, and Government Code.
Agency makes no express or implied representation as to the applicability
or inapplicability of any such laws to this Agreement or to the parties'
respective rights or obligations hereunder including, but not limited to,
payment of prevailing wages, competitive bidding, subcontractor listing, or
similar or different matters. Owner further acknowledges that Agency
shall not be liable or responsible at law or in equity for any failure by
Owner to comply with any such laws, regardless of whether Agency knew
or should have known of the need for such compliance, or whether
Agency failed to notify Owner of the need for such compliance.
5.6 Owner will take reasonable efforts to not permit any lien or stop notice to
be filed against the Property, provided Owner may reasonably determine
to contest any such lien or stop notice. If a claim of lien or stop notice is
recorded against the Property or Improvements, Owner, within 30 days
after recordation of a claim of lien or stop notice or within 5 days after
Agency's demand, whichever first occurs, will do the following:
5.6.1 Pay and discharge the same; or
5.6.2 Effect the release of such lien by recording and delivering to
Agency a surety bond in sufficient form and amount (i.e. 150%), or
otherwise; or
5.6.3 Give Agency other assurance which Agency, in its sole
discretion, deems satisfactory to protect the Agency from the effect
of the lien or bonded stop notice.
6. SECURITY FINANCING AND RIGHTS OF HOLDERS.
6.1 Notwithstanding any other provision of this Agreement, Owner may not
grant a security interest in the Property before the Agency issues and
records a Certificate of Completion, without the written consent of Agency,
provided that Agency hereby approves the recommended security interest
of Owner's financial institutions, including their respective successors or
assigns, as described in the Financing Plan.
20 :3�)
7. CONTINUING OWNER OBLIGATIONS
7.1 In its performance of this Agreement, Owner covenants by and for itself
and its successors and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of any
person, including contractors, subcontractors, bidders and vendors, on
account of race, color, religion, ancestry, national origin, sex, sexual
preference, age, pregnancy, childbirth or related medical condition,
medical condition (e.g., cancer related) or physical or mental disability,
and in compliance with all applicable federal, state and local laws,
regulations and rules including without limitation Title VII of the Civil Rights
Act of 1964, 42 U.S.C. Section 2000, et seq., the Federal Equal Pay Act of
1963, 29 U.S.C. Section 206(d), the Age Discrimination in Employment
Act of 1967, 29 U.S.C. Section 621, et seq., the Immigration Reform and
Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42 U.S.C. Section
1981, the California Fair Employment and Housing Act, Cal. Government
Code Section 12900, et seq., the California Equal Pay Law, Cal. Labor
Code Section 1197.5, Cal. Government Code Section 11135, the
Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and all
other applicable anti-discrimination laws and regulations of the United
States and the State of California as they now exist or may hereafter be
amended. Owner will allow Agency representatives access to its
employment records related to this Agreement during regular business
hours and upon reasonable notice to verify compliance with these
provisions when so requested by the Agency.
7.2 Owner will pay before delinquency all ad valorem real estate taxes and
assessments on the Property, subject to the Owner's right to contest in
good faith any such taxes. Owner will remove any levy or attachment on
the Property or any part of it, or assure the satisfaction of the levy or
attachment within a reasonable time. Owner will notify Agency prior to
applying for or receiving any exemption from the payment of property
taxes or assessments on any interest in or to the Property or the
Improvements. Owner further agrees that the prior consent of Agency
shall be required if the basis for such exemption is other than for qualified
property held by a nonprofit entity that has been determined to be exempt
from federal and state income taxation, which consent shall not be
unreasonably withheld.
8. COVENANTS AND RESTRICTIONS RUNNING WITH THE LAND. The
following covenants shall run with the land and shall bind Owner, and Owner's
successors in interest to the Property for the periods stated, and shall be fully
binding for the benefit of the Plan community and Agency without regard to
technical classification or designation, legal or otherwise.
21 n
8.1 Owner covenants for itself, its successors, assigns, and every successor
in interest to the Property or any part of it that, after closing of any
applicable escrow, during construction, and after completing the
Improvements, the Owner shall devote the Affordable Units on the
Property to the uses specified in this Agreement for the Affordability
Period. All uses of the Affordable Units including, without limitation, all
activities Owner undertakes pursuant to this Agreement, shall conform
with this Agreement and the Law. Without waiver or limitation, each of the
Affordable Units to be constructed pursuant to this Agreement shall be
maintained as Affordable Rental Housing pursuant to this Agreement and
the Restrictions.
8.2 Owner and those taking under Owner will maintain the Property and all
Improvements on site in reasonably good-condition and repair (and, as to
landscaping, if any, in a healthy condition), all according to the Basic
Design and related plans, as-amended from time to time. Owner and
those taking under Owner shall: (i) maintain all on-site Improvements
according to all other applicable laws, rules, ordinances, orders, and
regulations of all federal, state, county, municipal, and other governmental
agencies and bodies having or claiming jurisdiction and all their respective
departments, bureaus, and officials; (ii) keep the Improvements free from
graffiti, (iii) keep the Property free from any accumulation of debris or
waste material; (iv) promptly make repairs and replacements to the on-site
Improvements; and (v) promptly replace any dead, or diseased plants
and/or landscaping (if any) with comparable materials.
Agency will give Owner written notice of any breach of this Section 8.2.
Within 10 days from receipt of such notice, Agency and Owner will meet
and confer, and agree to corrective actions and a schedule of
performance for such corrective actions. Owner must cure the default
within the agreed schedule or within (a) 10 days after the Agency's notice
for any default involving landscaping, graffiti, debris, waste material, or
general maintenance on the Property, (b) 30 days after Agency's notice
for any default involving the Improvements. If Owner does not cure the
default within the agreed schedule, Agency, without obligation to, may
enter the Property, cure the default, and protect, maintain, and preserve
the Improvements and landscaping.
Agency may lien or assess the Property for the Agency's expenses in
protecting, maintaining, and preserving the on-site Improvements and
aesthetics of the Property, including any lawful administrative charge in
the manner used by the Agency in the abatement of public nuisances.
The notice and opportunity to cure provided for herein will substitute for
the noticing, hearing, and nuisance abatement order used by Agency.
Owner will promptly pay all such amounts to Agency upon demand.
8.3 During the Affordability Period Owner covenants to use and operate the
Affordable Units on the Property as Affordable Rental Housing pursuant to
this Agreement.
8.4 Owner covenants for itself and any successors in interest and all persons
claiming by, through or under them, in perpetuity, that there shall be no
discrimination against or segregation of any person or group of persons
because of race, color, creed, religion, sex, sexual preference, marital
status, national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the Affordable Units, nor shall
Owner itself or any person claiming under or through Owner establish or
permit any such practice or practices of discrimination or segregation
concerning the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Affordable Units.
8.5 All deeds, leases, or contracts concerning the Affordable Units shall
contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and
all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of
persons because of race, color, creed, religion, sex, sexual
preference, marital status, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the land herein conveyed, nor shall the grantee or any person
claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation concerning the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein, conveyed.
The foregoing covenants shall run with the land."
In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns,
and all persons claiming under or through him or her, and this lease
is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation
of any person or group of persons, because of race, color,
creed, religion, sex, sexual preference, marital status,
national origin, or ancestry in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee himself or
herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of
23 r,
discrimination or segregation concerning the selection,
location, number, use, or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the premises herein
leased."
In contracts: "There shall be no discrimination against or
segregation of, any person, or group of persons because of race,
color, creed, religion, sex, sexual preference, marital status,
national origin, or ancestry, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the premises, nor shall the
transferee himself or herself or any person claiming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation concerning the selection,
location, number, use or occupancy of tenants, lessees,
subtenants. sublessees or vendees of the premises."
8.6 Agency is the beneficiary of the covenants running with the land for itself
and for protecting the interests of the community and other parties, public
or private, in whose favor and for whose benefit the covenants are
provided, without regard to whether Agency has been, remains, or is an
owner of any land or interest in the Affordable Units on the Property.
Agency may exercise all rights and remedies, and maintain any actions or
suits at law or in equity or other proceedings to enforce the covenants for
itself or any other beneficiaries.
9. DEFAULTS AND REMEDIES
9.1 Subject to the extensions of time permitted under this Agreement, either
party's failure to perform any material action or material covenant as
required by this Agreement, following notice and failure to cure, is a
"Default" under this Agreement. A party claiming a Default shall give
written notice of Default to the other party specifying the Default
complained of, and the cure demanded. Except as otherwise expressly
provided in this Agreement, the noticing party shall not begin any
proceeding against the other party until the other party is given an
opportunity to cure the Default. The other party will have 30 calendar
days after receiving the notice to cure the Default, or, if the party cannot
reasonably cure the Default within such 30 days, the other party must
begin to cure within the 30 days and diligently pursue the cure to
completion, whereupon there shall be no event of Default.
9.2 Subject to first giving the notice and opportunity to cure, a party may begin
an action at law to enforce, or in equity to seek specific performance of,
the terms of this Agreement, or to cure, correct, or remedy any Default, to
recover damages for any Default, or to obtain any other remedy consistent
24 34
with the purpose of this Agreement. A party must bring any legal action in
the Superior Court of the County of Riverside, State of California, in an
appropriate municipal court in Riverside County, or in the District of the
United States District Court serving Riverside County,
9.3 If Owner begins any legal action against Agency, it shall serve process on
the Agency by personal service on the Director, or in any other manner
the law permits. If Agency begins any legal action against the Owner, it
will serve process on the Owner by personal service on Owner, Owner's
Agent or in any other manner the law permits.
9.4 Except as otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and a party's exercise of one or
more rights or remedies will not preclude the party's exercise, at the same
or different times, of any other rights or remedies for the same or any
other Default of the other party.
9.5 A party's failure or delay in asserting any right or remedy will not be a
waiver of any Default or of any right or remedy, and will not deprive the
party of its right to begin and maintain any action or proceeding to protect,
assert or enforce any right or remedy.
9.6 The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
10. GENERAL PROVISIONS
10.1 Any notice, demand, or other communication permitted or required under
this Agreement will be in writing and given by personal delivery, or by first-
class U.S. mail, postage prepaid, to a party at its respective address
below:
To Agency:
Executive Director
Community Redevelopment Agency of the City of Palm Springs
3200 Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263
With a Copy to:
WOODRUFF, SPRADLIN & SMART, APC
555 Anton Boulevard, Suite 1200
Costa Mesa, California 92626
Attention: Douglas C. Holland, Esq.
?5
35
To Owner:
Global Premier Development, Inc.
2010 Main St. Suite 1250
Irvine, Ca. 92614
Andrew Hanna, President
A party may change its address for notices, demands and
communications by giving notice of the new address as provided in this
section. Any written notice, demand or communication shall be deemed
received immediately if delivered personally, and shall be deemed
received on the third day after it is postmarked if delivered by regular,
registered or certified mail, or on the date of receipt, if return receipt is
requested and available to confirm the date.
10.2 All of the terms, covenants and conditions of this Agreement shall be
binding upon the Owner and its permitted successors and assigns.
Whenever the term "Owner" is used in this Agreement, such term shall
include Owner's successors and assigns as permitted under this
Agreement.
10.3 The Agency may assign or transfer any of its interests, rights, or
obligations hereunder at any time to any public agency without the
consent of the Owner.
10.4 No member, official or employee of the Agency shall be personally liable
to the Owner, or any successor in interest to Owner, for any Default or
breach by the Agency.
10.5 The relationship between the Agency and the Owner is that of
redevelopment agency and redeveloper respectively, as permitted by law,
and not that of a partnership or joint venture. Agency and Owner shall not
be deemed or construed for any purpose to be the agent of the other.
10.6 Whenever this Agreement references an action or approval required or
permitted by the Agency, the Director or his or her designee is authorized
to act for the Agency as agent of the Agency unless this Agreement, the
Law, Constitutional and/or local law provide otherwise, or the context
otherwise requires.
10.7 This Agreement may be signed in multiple counterparts which, when
signed by all parties, will be one binding agreement. The parties will sign
three copies of this Agreement, each of which is deemed to be original.
10.8 This Agreement, includes the exhibits and attachments referenced and
incorporated in it. This Agreement contains the entire agreement between
the parties relating to the transaction contemplated by this Agreement and
26 36
supersedes all prior or contemporaneous agreements, understanding,
representation and statements, whether oral or written.
10.9 If either party begins a lawsuit or arbitration proceeding, in law or equity, to
enforce or interpret any provision of this Agreement, the prevailing party
will be entitled to recover from the other party reasonable attorneys' fees,
court costs, and legal expenses as determined by the court or tribunal
having jurisdiction.
10.10 Any waiver, alteration, change or modification of or to this Agreement, to
be effective, must be in writing, and signed by each party.
10.11 If any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances is held invalid or unenforceable,
the remainder of this Agreement and its application to persons or
circumstances, other than those about whom or which it is held invalid or
unenforceable, shall not be affected, and shall remain valid and
enforceable to the fullest extent permitted by law.
10.12 Each party represents and warrants to the other that (a) each has read
this Agreement, and (b) is signing this Agreement with full knowledge of
any rights and obligations each may have, and (c) each has received
independent legal advice from their respective legal counsel as to the
matters set forth in this Agreement, or has knowingly chosen not to
consult legal counsel, and (d) has signed this Agreement without relying
on any agreement, promise, statement or representation by or for the
other party, or their respective agents, employees, or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
10.13 No member, official or employee of Agency has or shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member,
official or employee participate in any decision relating to the Agreement
which affects his personal interests or the interests of any corporation,
partnership or association in which he is directly or indirectly interested.
Owner represents and warrants that it has not paid or given, and will not
pay or give, to any third party any money or other consideration for
obtaining this Agreement, other than normal costs of conducting business
and costs of professional services such as architects, consultants,
engineers and attorneys.
10.14 The parties will execute such other and further documents, and will take
any other steps, necessary, helpful, or appropriate to carry out the
provisions of this Agreement.
27 37
10.15 No contractor, subcontractor, mechanic, material man, laborer, vendor, or
other person hired or retained by with Owner shall be, nor shall any of
them be deemed to be, third-party beneficiaries of this Agreement, rather
each such person shall be deemed to have agreed (a) that they shall look
to Owner as their sole source of recovery if not paid, and (b) except as
otherwise agreed to by Agency and any such person in writing, they may
not enter any claim or bring any such action against Agency under any
circumstances. Except as provided by law, or as otherwise agreed to in
writing between Agency and such person, each such person shall be
deemed to have waived in writing all right to seek redress from Agency
under any circumstances whatsoever.
10.16 Owner hereby covenants and warrants that it is a duly authorized and
existing California limited liability company, in good standing; that it shall
remain in good standing; that it has the full right, power and authority to
enter into this Agreement and to carry out all actions on its part
contemplated by this Agreement; that the execution and delivery of this
Agreement were duly authorized by proper action of the Owner and no
consent, authorization or approval of any person is necessary in
connection with such execution and delivery or to carry out all actions of
the Owner's part contemplated by this Agreement, except as have been
obtained and are in full force and effect; and that this Agreement
constitutes the valid, binding and enforceable obligation of the Owner.
10.17 In the event of any conflict between the body of this Agreement and any
exhibit or attachment to it, the terms and conditions of the body of this
Agreement will control.
28 38
IN WITNESS WHEREOF, Agency and Developer have signed this Amendment
on the respective dates set forth below.
"Agency"
Dated: Community Redevelopment Agency of
the City of Palm Springs, a public body,
corporate and politic
By:
David Ready, Executive Director
APPROVED AS TO FORM: A I I EST:
By: By:
Douglas Holland James Thompson
Agency Counsel Agency Secretary
"Owner"
Global Premier Development, Inc.
Dated:_ By
Its
Attachments:
Exhibit A: Legal Description of Property
Exhibit B: Performance and Payment Schedule
Exhibit C: Budget/Financial Plan
Exhibit D: Certificate of Completion
Exhibit E: Basic Design
Exhibit F: Affordability Restrictions Running with Land.
Exhibit G: [Specimen] Promissory Note
29 39
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF RIVERSIDE, CITY OF PALM SPRINGS, AND IS DESCRIBED AS FOLLOWS:
30 40
EXHIBIT "B"
Performance and Payment Schedule
SCHEDULE OF PERFORMANCE
Items Completed Time for Performance Estimated Date
Developer executes and delivers Agreement On or before August 19, 2011 August 19, 2011
to Agency
Agency executes Agreement On or before August 20, 2011 August 20, 2011
Submission — Certificates of Insurance. The Within 15 days after execution September 5,
Developer furnishes to the Agency appropriate of this Agreement by the 2011.
certificates of bodily injury and property Agency.
damage insurance policies.
Approval — Certificates of Insurance. Agency Within 15 days after receipt September 20,
approves or disapproves Developer's thereof by the Agency. 2011.
submission of appropriate certificates of bodily
injury and property damage insurance policies.
Loan Disbursement. The Agency shall make Within 15 days after approval October 5, 2011.
the first disbursement of loan proceeds in the of Certificates of Insurance by
amount of$300,000 and record a Deed of the Agency.
Trust.
Loan Disbursement. The Agency shall make Within 15 days after Notice December 15,
the second disbursement of loan proceeds in that work on the residential 2011.
the amount of$300,000. units is substantially complete
and the units are ready to
occupy.
Completion of Construction of Developer's Within the specified months February 28, 2010
Improvements The Developer shall complete after commencement thereof
construction of the improvements to be by the Developer 8 months
constructed on the Project Site. after commencement of
construction
Issuance — Certificate of Completion. The Promptly after completion of all March 31, 2010
Agency shall furnish the Developer with a construction and upon written
Certificate of Completion on the Project. request thereof by the
Developer.
31 41
32
EXHIBIT "C"
Budget/Financial Plan
Unit Mix and Rents
Residential
Total Units 23
Affordable-60% of AMI 8
Affordable- Moderate 110% of AMI 31
Affordable- Moderate 110% of AMI _# SF Rent
1 BD 8 636 $575
1 BD 3 533 $575
1 BD 8 639 $575
2 BD 1 1228 $625
2 BD 1 1125 $625
Studio 2 375 $550
Studio 8 388 $550
Total Market Rate 31
Affordable Units -up to 60%AMI _# SF Rent
1 BD 4 700 $500
Studio 4 386 $500
8
Monthly Gross Rent 191 BD $10,925
22 BD $1,250
10 Studio $5,500
41 BD $2,000
4Studio $2,000
$21,675
Annual Gross Rent $ 260,100
Vacancy Allowance(5%) $ (13,005)
Effective Residential Rent $ 247,095
33 43
Total Development Cost
Property Acquisition $ 805,000
Hard Cost
Direct Construction per Tyco Contract $ 559,000
Construction Change Orders (Tyco Contract) $ 40,000
Retail Space Remodel $ 90,000
Courtyard Landscaping/Hardscape $ 160,000
Off Sites $ 150,000
Subtotal Hard $ 999,000
Construction Contingency @ 5% $ 49,950
Total Hard Cost $ 1,048,950
TOTAL DEVELOPMENT COST(TDC) $ 1,853,950
FMV based on Capitalization Rate 9.0% 1,043,222
LTV 63%
Conventional Loan $ 657,230
Assistance Calculations
Total Development Cost $ 1,848,950
Agency Loan $ (600,000)
Developer Equity or Permanent Financing $ 1,248,950
Annual Debt Service(20 years, 8%) ($52578.40)
ROI After Debt Service $146,468.40
Annual Debt Service on Agency Loan ($26,789.95)
Monthly Debt service on Agency Loan $ (2,232.50)
34 44
EXHIBIT "D"
Certificate of Completion
CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Community Redevelopment Agency of City of Palm Springs
3200 Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263
Attention: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
This Certificate of Completion is recorded at the request and for the benefit of the
Community Redevelopment Agency of the City of Palm Springs and is exempt from the
payment of a recording fee pursuant to Government Code Section 6103.
Community Redevelopment Agency of the City
of Palm Springs, a public body, corporate and
politic
By:
David H. Ready, Esq., Ph.D.
Its: Executive Director
Dated:
35
Certificate of Completion
RECITALS :
A. By an Owner Participation Agreement (the "Agreement") dated
[ 1, 2011 between Global Premier Development, Inc., a California
Corporation ("Owner") and the Community Redevelopment Agency of the City of Palm
Springs, a public body corporate and politic ("Agency"), Owner agreed to rehabilitate
certain residential units on the premises legally described in Attachment "A" hereto (the
"Property") and preserve the Affordable Units, as defined in the Agreement as rental
housing for Low-Income Households with the assistance of Agency housing set aside
funds while meeting the Affordable Housing, income targeting and other requirements of
the Community Redevelopment Law set forth at California Health and Safety Code
Sections 33000 et seq. for a fifty-five (55) year Affordability Period according to the
terms and conditions of the Agreement.
B. The Agreement was recorded on [ 1 , 2011 in the Official
Records of Riverside County, California as Instrument No.
C. Under the terms of the Agreement, after Owner completes the construction on
the Property, Owner may ask Agency to record a Certificate of Completion.
D. Owner has asked Agency to furnish Owner with a recordable Certificate of
Completion.
E. Agency's issuance of this Certificate of Completion is conclusive evidence that
Owner has completed the construction on the Property as set forth in the Agreement.
NOW THEREFORE:
1. Agency certifies that Owner commenced the construction work on the
Project on [ 1, 20 , and completed the construction
work on the Project on , 20 and has done so in full compliance
with the Agreement.
36 46
2. This Certificate of Completion is not evidence of Owner's compliance with,
or satisfaction of, any obligation to any mortgage or security interest holder, or any
mortgage or security interest insurer, securing money lent to finance work on the
Property or Project, or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as referred to
in California Civil Code section 3093.
4. Nothing contained herein modifies any provision of the Agreement.
IN WITNESS WHEREOF, the Agency has executed this Certificate of
Completion as of this day of , 20
Community Redevelopment Agency
of the City of Palm Springs, a public body,
corporate and politic
By:
David H. Ready, Esq., Ph.D.
Executive Director
37 47
Owner hereby consents to recording this Certificate of Completion against the
Property described herein.
Dated: , 200
PS Housing Partners, LP, by
Global Premier Development, Inc., its managing general partner
By:
Andrew Hanna,President
Global Premier Development, Inc.
THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY
PUBLIC.
A I I EST: APPROVED AS TO FORM:
CITY CLERK CITY A I I ORNEY
By: By:
Dated: Dated:
38 4 8
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Palm Springs, Riverside County, California, described as
follows:
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF RIVERSIDE, CITY OF PALM SPRINGS, AND IS DESCRIBED AS FOLLOWS:
39 19
EXHIBIT "E"
BASIC DESIGN/INTERIOR
BASIC DESIGN/EXTERIOR
40 50
EXHIBIT "F"
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
3200 Tahquitz Canyon Way, P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
(space Above This Line for Recorder's Office Use Only)
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS
AND RESTRICTIONS ("Agreement") is made and entered into this day of
, by and between the Community Redevelopment Agency of
THE CITY OF PALM SPRINGS, a public body, corporate and politic ("Agency"), and PS
HOUSING PARTNERS, LP, a California Limited Partnership ("Owner").
RECITALS:
A. Pursuant to an Owner Participation Agreement by and between Agency
and Owner dated , 2011 (the "OPA"), Agency has provided to
Owner financial assistance in the amount of approximately One Million Dollars
($1,000,000.00) in loan funds (the "Agency Assistance"), for the purpose of assisting
Owner in the acquisition of real property and the rehabilitation of a mixed use residential
apartment complex thereon wherein twenty percent of the units shall be rented to low
income households and eighty percent of the units shall be rented to moderate income
households, on that certain real property located in the City of Palm Springs, County of
Riverside, State of California, more particularly described in Exhibit "A" attached hereto
and incorporated herein by reference (the "Site").
B. Pursuant to the OPA, Owner has agreed to rehabilitate and maintain a
rental apartment housing project consisting of twenty-three (23) total residential units
(hereinafter referred to collectively as the "Project") on the Site. The Project is also
41
referred to in the OPA as the "Project," and is further described in the Scope of
Development attached to the OPA.
C. The Agency and the City of Palm Springs have fee or easement interests
in various streets, sidewalks and other property within the City and are responsible for
the planning and development of land within the City in such a manner so as to provide
for the health, safety and welfare of the residents of the City. That portion of the
Agency's and City's interest in real property most directly affected by this Agreement is
depicted in Exhibit "B" attached hereto and incorporated herein by reference ("Public
Parcel").
D. Agency, City, and Owner now desire to place restrictions upon the use
and operation of the Project, in order to ensure that the Project shall be operated
continuously as a rental apartment housing project with the units available for rental by
low income persons for the term of this Agreement.
AGREEMENT:
NOW, THEREFORE, the Owner and Agency declare, covenant and agree, by
and for themselves, their heirs, executors, administrators and assigns, and all persons
claiming under or through them, that the Site shall be held, transferred, encumbered,
used, sold, conveyed, leased and occupied, subject to the covenants and restrictions
hereinafter set forth, all of which are declared to be in furtherance of a common plan for
the improvement and sale of the Site, and are established expressly and exclusively for
the use and benefit of the Agency, the residents of the City of Palm Springs, and every
person renting a dwelling unit on the Site.
AFFORDABILITY RESTRICTIONS RUNNING WITH LAND
In addition to the covenants and conditions contained in the Agreement, the
following California Community Redevelopment Law (California Health & Safety Code
Section 33000 et seq.) affordability requirements shall be imposed upon the 23
Affordable Units on the Property funded under the Agreement and shall bind the Owner
and all purchasers of the Property and their successors for a fifty-five (55) year period.
The Affordable Units on the Property are held and will be held, transferred,
encumbered, used, sold, conveyed and occupied subject to the covenants, restrictions,
and limitations set forth in this Exhibit, all of which are in furtherance of the Project, the
Agency's Community Redevelopment Law and Plan Area obligations including
42 52
Agency's obligations set forth at California Health & Safety Code sections 33334.2 et
seq and 33413 (a) with respect to Housing Set Aside Funds and replacement dwelling
units at affordable rent within the jurisdiction of the Agency. All of the restrictions,
covenants and limitations will run with the land and will be binding on all parties having
or acquiring any right, title or interest in the Affordable Units upon the Property or any
part thereof, will inure to the benefit of the Agency, and will be enforceable by it. Any
purchaser under a contract of sale or other transferee of an interest covering any right,
title or interest in any part of the Affordable Units upon the Property, by accepting a
deed or a contract of sale or agreement of purchase, accepts the document subject to,
and agrees to be bound by, any and all restrictions, covenants, and limitations set forth
in this Exhibit for the period of fifty-five (55) years running from and after recordation of
Agency's Certificate of Completion constituting the Affordability Period.
1. Restrictions. The following covenants and restrictions ("Restrictions") on the use
and enjoyment of the Affordable Units upon the Property shall be in addition to any
other covenants and restrictions affecting the Property, and all such covenants and
restrictions are for the benefit and protection of the Agency and shall run with the
Affordable Units upon the Property and be binding on any future owners of the Property
and inure to the benefit of and be enforceable by Agency. These covenants and
restrictions are as follows:
a. From the date of recordation of Agency's Certificate of Completion until
the expiration of the Affordability Period the twenty three (23) Affordable Units funded
under the Agreement are to be used as Low Income Affordable Rental Housing as
provided for in the Agreement. Owner agrees to file a recordable document setting forth
the project Completion Date and the Affordability Period as and when determined by the
Agency. Unless otherwise provided in the Agreement, the term "Affordable Rental
Housing" shall include without limitation compliance with the following requirements:
Nondiscrimination. There shall be no discrimination against nor
segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, ancestry, or handicap in
the sale, transfer, use, occupancy, tenure, or enjoyment of any of the
Property, nor shall Owner or any person claiming under the Owner,
establish or permit any practice of discrimination or segregation with
reference to the selection, location, number, use or occupancy of owners
or vendees of the Property.
43 53
Principal Residence. Each of the Affordable Units upon the Property shall
be leased only to natural persons, who shall occupy such as a principal
residence.
Income Requirements. Each of the 23 Units constituting Low Income
Affordable Rental Housing upon the Property may be leased only to (a)
natural person(s) whose annual household income at the time of initial
occupancy is not greater than sixty percent (60%) of the most recent
annual median income calculated and published by HUD for the
Riverside-San Bernardino Metropolitan Statistical Area applicable to such
household's size, and at an affordable price consistent with the applicable
California Redevelopment Law.
Injunctive Relief and Recapture. Should any of the 23 Affordable Units
constituting Low Income Affordable Rental Housing upon the Property not
continue to be, at the time of initial occupancy, the principal residence of a
Household that qualifies as a low-income household, during the period of
Affordability, such Unit(s) shall be made available for subsequent lease
only to Households that qualify as a very low-income for use as the
Household's principal residence.
2. Enforcement of Restrictions. Without waiver or limitation, the Agency shall be
entitled to injunctive or other equitable relief against any violation or attempted violation
of the Restrictions, and shall, in addition, be entitled to damages for any injuries or
losses resulting from any violations thereof.
3. Acceptance and Ratification. All present and future owners of the Property and
other persons claiming by, through, or under them shall be subject to and shall comply
with the above Restrictions. The acceptance of a deed of conveyance to the Property
shall constitute an agreement that the Restrictions, as such may be amended or
supplemented from time to time, is accepted and ratified by such future owners, tenant
or occupant, and such Restrictions shall be a covenant running with the land and shall
bind any person having at any time any interest or estate in the Property, all as though
such Restrictions were recited and stipulated at length in each and every deed,
conveyance, mortgage or lease thereof.
4. Benefit. This Exhibit and the Restrictions therein shall run with and bind the
Property for a term commencing on the date the Agreement to which this Exhibit is
attached is recorded in the Office of the Recorder of the County of Riverside, State of
44 5 4
California, and expiring upon the expiration of the Affordability Period. The failure or
delay at any time of Agency and/or any other person entitled to enforce these
Restrictions shall in no event be deemed a waiver of the same, or of the right to enforce
the same at any time or from time to time thereafter, or an estoppel against the
enforcement thereof.
5. Costs and Attornev's Fees. In any proceeding arising because of failure of
Owner or any future owner of the Property to comply with the Restrictions required by
this Exhibit, as may be amended from time to time, Agency shall be entitled to recover
its respective costs and reasonable attorney's fees incurred in connection with such
default or failure.
6. Waiver. Neither Owner nor any future owner of the Property may exempt itself
from liability for failure to comply with the Restrictions required in this Exhibit.
7. Severability. The invalidity of the Restrictions or any other covenant, restriction,
condition, limitation, or other provision of this Exhibit shall not impair or affect in any
manner the validity, enforceability, or effect of the rest of this Exhibit and each shall be
enforceable to the greatest extent permitted by law.
8. Pronouns. Any reference in this Exhibit and the Restrictions therein to the
masculine, feminine, or neuter gender herein shall, unless the context clearly requires
the contrary, be deemed to refer to and include all genders. Words in the singular shall
include and refer to the plural, and vice versa, as appropriate.
9.. Interpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Exhibit are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting
or construing this Exhibit or any provision hereof.
10.. Capitalized Terms. All capitalized terms used in this Exhibit, unless otherwise
defined herein, shall have the meanings assigned to such terms in the Agreement.
11. Amendments. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real
property records of the County of Riverside.
12. Notice. Any notice required to be given hereunder shall be made in writing and
shall be given by personal delivery, certified or registered mail, postage prepaid, return
45 `i J
receipt requested, at the addresses specified below, or at such other addresses as may
be specified in writing by the parties hereto:
Agency: Community Redevelopment Agency
of the City of Palm Springs
3200 Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
Copy to: WOODRUFF, SPRADLIN & SMART, APC
555 Anton Boulevard, Suite 1200
Costa Mesa, California 92626
Attention: Douglas C. Holland, Esq.
Owner: PS Housing Partners, LP
c/o GLOBAL PREMIER DEVELOPMENT,
INC., its managing general partner
2010 Main St. Suite 1250
Irvine, Ca. 92614
Attn: Andrew Hanna, President
Copy to:
The notice shall be deemed given three (3) business days after the date of
mailing, or, if personally delivered, when received.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one original and all of which shall be one
and the same instrument.
[END -- SIGNATURES ON NEXT PAGE]
46 " G
IN WITNESS WHEREOF, the Agency and Owner have executed this Regulatory
Agreement and Declaration of Covenants and Restrictions by duly authorized
representatives on the date first written hereinabove.
"AGENCY"
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and
politic
By:
David H. Ready, Esq., Ph.D.
Executive Director
A i i EST:
JAMES THOMPSON
City Clerk
APPROVED AS TO FORM:
DOUGLAS C. HOLLAND
AGENCY COUNSEL
"OWNER"
PS Housing Partners, LP, a California
Limited Partnership
By:
GLOBAL PREMIER DEVELOPMENT,
INC., its managing general partner
ANDREW HANNA, President
47 h
[END OF SIGNATURES]
Attachments:
Exhibit A: Legal Description of Property
- 48 -
STATE OF CALIFORNIA )
) ss. '
COUNTY OF )
On , before me, , personally
appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, , personally
appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
- 49 -
53
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Palm Springs, Riverside County, California, described as
follows:
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF RIVERSIDE, CITY OF PALM SPRINGS, AND IS DESCRIBED AS FOLLOWS:
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6D
EXHIBIT "G"
PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to
Borrower for cancellation.
$1,000,000.00 Palm Springs, California
f 1, 2011
For value received, the undersigned, Global Premier Development, Inc., a
, ("Borrower"), promises to pay to the order of the
Redevelopment of the City of Palm Springs ("Lender"), the sum of $1,000,000.00, to the
extent that such funds are loaned to Borrower, without interest on the unpaid principal
balance (i.e. 2% per annum), payable periodically as described herein. This Promissory
Note ("Note") is made and entered into in accordance with the terms of the Owner
Participation Agreement dated 1 2011, entered into between Borrower
and Lender("Agreement")
Commencing on the date which is five (5) years after the "Certificate of
Completion" for the "Project" as described in the Agreement is recorded in the Official
Records of Riverside County, California (the "Payment Commencement Date") , and
continuing on the same date of each month thereafter until the date which is thirty (30)
years after the date of the recordation of the Certificate of Completion ("Maturity Date"),
Borrower shall pay the principal in monthly installments equal to $2,232.50 (if the
principal balance of this Note on the Payment Commencement Date is $600,000.00).
Such monthly payments shall continue until the Maturity Date at which time the entire
remaining unpaid balance of principal shall be all due and payable, along with attorney's
fees and costs of collection, and without relief from valuation and appraisement laws.
All capitalized terms used in this Note, unless otherwise defined, will have the
respective meanings specified in the Agreement.
This Note, and any extensions or renewals hereof, is secured by a [Deed of
Trust, Security Agreement and Fixture Filing with Assignment of Rents] on real estate in
Riverside County, California (the "Property"), dated as of the same date as this Note,
and executed in favor of and delivered to the Lender ("Deed of Trust"). The Deed of
Trust provides for acceleration upon stated events.
Time is of the essence. It will be a default under this Note if Borrower defaults
under the Agreement or other Project Loan Documents, and if Borrower fails to pay
when due any sum payable under this Note. In the event of a default by Borrower, the
Borrower shall pay a late charge equal to 2% of any outstanding payment. All
payments collected shall be applied first to payment of any costs, fees or other charges
due under this Note or any other project loan documents then to the interest and then to
- >1 -
61
principal balance. On the occurrence of a default or on the occurrence of any other
event that under the terms of the project loan documents give rise to the right to
accelerate the balance of the indebtedness, then, at the option of Lender, this Note or
any notes or other instruments that may be taken in renewal or extension of all or any
part of the indebtedness will immediately become due without any further presentment,
demand, protest, or notice of any kind.
The indebtedness evidenced by this Note may, at the option of the Borrower, be
prepaid in whole or in part, at any time, without penalty. Lender will apply all the
prepayments first to the payment of any costs, fees, late charges, or other charges due
under this Note or under any of the other Loan Documents and then to the interest and
then to the principal balance.
All payments are payable in lawful money of the United States of America at any
place that Lender or the legal holders of this Note may, from time to time, in writing
designate, and in the absence of that designation, then to Lender at its address of
record provided in the Agreement.
Borrower agrees to pay all costs including, without limitation, attorney fees,
incurred by the holder of this Note in enforcing payment, whether or not suit is filed, and
including, without limitation, all costs, attorney fees, and expenses incurred by the
holder of this Note in connection with any bankruptcy, reorganization, arrangement, or
other similar proceedings involving the undersigned that in any way affects the exercise
by the holder of this Note of its rights and remedies under this Note. All costs incurred
by the holder of this Note in any action undertaken to obtain relief from the stay of
bankruptcy statutes are specifically included in those costs and expenses to be paid by
Borrower. Borrower will pay to Lender all attorney fees and other costs referred to in
this paragraph on demand.
Any notice, demand, or request relating to any matter set forth herein shall be in
writing and shall be given as provided in the Agreement.
No delay or omission of Lender in exercising any right or power arising in
connection with any default will be construed as a waiver or as an acquiescence, nor
will any single or partial exercise preclude any further exercise. Lender may waive any
of the conditions in this Note and no waiver will be deemed to be a waiver of Lender's
rights under this Note, but rather will be deemed to have been made in pursuance of
this Note and not in modification. No waiver of any default will be construed to be a
waiver of or acquiescence in or consent to any preceding or subsequent default.
The Deed of Trust provides as follows:
DUE ON SALE—CONSENT BY BENEFICIARY. Beneficiary may, at its
option, declare immediately due and payable all sums secured by this
Deed of Trust upon the sale or transfer, without the Beneficiary's prior
written consent, of all or any part of the Land, or any interest in the Land.
Ei 2
A "sale or transfer" means the conveyance of Property or any right, title or
interest therein; whether legal, beneficial or equitable; whether voluntary
or involuntary; whether by outright sale, deed, installment sale contract,
land contract, contract for deed, leasehold interest with a term greater
than three (3) years, lease-option contract, or by sale, assignment, or
transfer of any beneficial interest in or to any land trust holding title to the
Property, or by any other method of conveyance of Property interest. If
any Trustor is a corporation, partnership or limited liability company,
transfer also includes any change in ownership of more than fifty percent
(50%) of the voting stock, partnership interests or limited liability company
interests, as the case may be, of Trustor, other than a transfer to the
managing member of Trustor or an affiliate of the managing member.
However, this option shall not be exercised by Beneficiary if such exercise
is prohibited by applicable law.
Lender may transfer this Note and deliver to the transferee all or any part of the
Property then held by it as security under this Note, and the transferee will then become
vested with all the powers and rights given to Lender; and Lender will then be forever
relieved from any liability or responsibility in the matter, but Lender will retain all rights
and powers given by this Note with respect to Property not transferred.
If any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a court of competent jurisdiction, the validity, legality,
and enforceability of the remaining provisions will not in any way be affected or
impaired. This Note will be binding on and inure to the benefit of Borrower, Lender, and
their respective successors and assigns.
Borrower agrees that this Note will be deemed to have been made under and will
be governed by the laws of California in all respects, including matters of construction,
validity, and performance, and that none of its terms or provisions may be waived,
altered, modified, or amended except as Lender may consent to in a writing duly signed
by Lender or its authorized agents.
The Loan shall be non-recourse to the Borrower and all constituent members of
the Borrower.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by
Borrower or Borrower's authorized agent(s) as of the date and year first above written.
Borrower:
By:
PS Housing Partners, LP
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h3
EXHIBIT "H"
DEED OF TRUST
Recording requested by,
and when recorded mail to:
Community Redevelopment Agency of the City of Palm Springs
3200 Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, Ca. 92263
Attention: Executive Director
INSTRUCTIONS TO COUNTY RECORDER:
Index this instrument as
(i) a Deed of Trust, and
(ii) a Fixture Filing
Space above for Recorder's Use
DEED OF TRUST AND ASSIGNMENT OF RENTS
This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is
entered into between PS Housing Partners, LP, a California Limited Partnership, whose
principal executive office is at (the
"Trustor"), in favor of TITLE COMPANY, whose address is
, Palm Springs, CA 92262 (the "Trustee"), for the benefit of the
Community Redevelopment Agency of THE CITY OF PALM SPRINGS (the
"Beneficiary"), with offices at 3200 Tahquitz Canyon Way, P.O. Box 2743, Palm
Springs, California 92263.
THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO
THE TRUSTEE, in trust, with the power of sale, the real property in the City of Palm
Springs, Riverside County, California, more particularly described in Exhibit A attached
hereto and made part hereof by reference (the "Property"), together with:
(i) All tenements, hereditaments and appurtenances of or to the Property,
including without limitation all easements and rights used in connection therewith or as
a means of access thereto, all right, title and interest of the Trustor, now owned or
hereafter acquired, in any land lying within the right-of-way of any street, open or
proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other
areas of land adjacent to or used in connection with the Property;
(ii) All oil and gas or other mineral rights in or pertaining to the Property and
all royalty, leasehold and other rights of the Trustor pertaining thereto;
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64
(iii) All water rights pertaining to the Property and shares of stock evidencing
the same, and all deposits made with or other security given to utility companies by the
Trustor with respect to the Property;
(iv) The rents, issues and profits thereof, subject, however, to the right, power
and authority of Trustor to collect and apply such rents, issues and profits and set forth
in this Deed of Trust;
(v) All buildings and improvements of every kind and description now or
hereafter erected or placed on the Property, and all fixtures thereon, including, but not
limited to, all gas and electric fixtures, engines and machinery, radiators, heaters,
furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves,
ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and
other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and
refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances,
and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed
that all such fixtures and furnishings shall to the extent permitted by law be deemed
permanently affixed to and a part of the realty;
(vi) All building materials and equipment now or hereafter delivered to the
Property and intended to be installed thereon; and
(vii) All articles of personal property owned by the Trustor and now or hereafter
attached to or used in and about the building or buildings now erected or hereafter to be
erected on the Property which are necessary to the complete and comfortable use and
occupancy of such building or buildings for the purposes for which they were or are to
be erected, and all other goods, chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the ones
herein described and referred to, and all renewals or replacements thereof or articles in
substitution therefor, whether or not the same are or shall be attached to the building or
buildings in any manner; subject, however, to (and only to) any purchase money
security interests in such personal property.
Said real property and personal property described above, together with appurtenances,
are referred to collectively in this Deed of Trust as the "Collateral."
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS:
(a) Payment to the Beneficiary of an indebtedness in the principal amount of
One Million Dollars ($1,000,000.00), evidenced by a promissory note executed by the
Trustor and payable to the order of the Beneficiary, bearing the same date as this Deed
of Trust, and any and all modifications, extensions or renewals thereof or substitutions
therefor (the "Note"), and performance and satisfaction of each and all other obligations
of the Trustor under the Note;
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t� 5
(b) Performance of every obligation or Trustor in this Deed of Trust, the Note,
the Owner Participation Agreement between Beneficiary and Trustor related to the
Property (the "Participation Agreement") contemplating the improvement of the "Project'
(as that term is defined in the Participation Agreement); and
(c) Payment of all sums, if any, and interest thereon that may hereafter be
loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its
successors, transferees and assigns, made to the Trustor while the Trustor is the owner
of record of fee title to the Property, or any portion thereof, or to the successors,
transferees or assigns of the Trustor while they are the owners of record of such fee
title, and evidenced by one or more notes or written instruments which recite that they
are secured by this Deed of Trust.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR
COVENANTS AND AGREES AS FOLLOWS:
1. The Trustor shall not use or permit the use of any of the Collateral for any
purpose other than the use for which it was intended at the time this Deed of Trust was
executed, as provided in the Participation Agreement.
2. Upon default under this Deed of Trust or the Note (following delivery of
notice and expiration of the cure period, if any, provided therein), the Beneficiary, at its
option, may declare the whole of the obligations and sums secured hereby to be
immediately due and payable.
3. The person(s) or entity(ies) who have executed this Deed of Trust are fully
authorized, and have obtained any and all written authorizations, approvals or consents
necessary, to bind the Trustor to this Deed of Trust.
4. All rents, profits and income from the Collateral covered by this Deed of
Trust are hereby assigned to the Beneficiary for the purpose of discharging the
obligations hereby secured. However, the Trustor shall be permitted, so long as no
default exists hereunder or under the Note, to collect such rents, profits and income for
use consistent with the provisions of the Agreement.
5. Upon default hereunder or under the Note (following delivery of notice and
expiration of the cure period, if any, provided herein or therein), for the purpose of
protecting its interests hereunder, the Beneficiary will be entitled to the appointment by
a court having jurisdiction, without further notice and without regard to adequacy of any
security for the indebtedness secured hereby, of a receiver to take possession of and
protect the Collateral described herein and operate same and collect the rents, profits
and income therefrom. The entering upon and taking possession of the Property or
other Collateral by such receiver, the collection of such rents, profits and income and
the application thereof shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant to such notice.
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66
i
6. The Trustor, at its sole cost and expense, shall provide and maintain on
the entire Property, including all buildings and improvements thereon: (i) a policy of
broad-form builder's risk insurance sufficient to cover 100 percent of the replacement
value of all buildings and improvements on the Property including; without limitation,
labor and materials in place or to be used as part of the permanent construction -
(including, without limitation, surplus miscellaneous materials and supplies incidental to
the work, and scaffolding, staging, towers, forms and equipment not owned or rented
by the Beneficiary, the cost of which is not included in the cost of work), insuring against
loss or damage by fire, extended coverage perils and such other hazards, casualties or
other contingencies as from time to time may be reasonably required by the Beneficiary;
(ii) a policy of commercial general liability insurance that includes contractual, products
and completed operations coverages, bodily injury and property damage liability
insurance with combined single limits of not less than $1,000,000 per occurrence; and
(iii) such other insurance as may be reasonably required by the Beneficiary, in each
case in such amounts, in such manner and with such companies as the Beneficiary and
Trustor may reasonably approve. The foregoing minimum insurance coverage limits
shall be subject to reasonable adjustment from time to time by the Beneficiary. Each
such policy shall be endorsed with a standard mortgage clause with loss payable to the
Beneficiary and the Trustor, and shall provide that the policy shall not be canceled or
materially changed without at least thirty (30) days' prior notice to the Beneficiary. Upon
request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary
certificates evidencing such policies.
7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes
and assessments affecting the Collateral, including assessments on appurtenant water
stock; (ii) when due, all encumbrances, charges and liens, with interest, on the -
Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all
costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in
connection with the trusts created under this Deed of Trust.
8. The Trustor shall: (i) keep the Collateral in good condition and repair and
not remove or demolish any buildings on the Property; to the extent insurance or
condemnation proceeds are available; (ii) complete or restore promptly and in good and
workmanlike manner the buildings and improvements and any other building or
improvement which may be constructed, damaged or destroyed thereon; (iii) pay when
due all claims for labor performed and materials furnished therefore; (iv) comply in all
material respects with all laws affecting the Collateral or requiring any alterations or
improvements to be made thereon; (v) not commit or permit waste of or on the
Collateral; and (vi) not commit, suffer or permit any act upon the Property in violation of
law and/or any covenants, conditions or restrictions affecting the Collateral.
9. The Trustor shall appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of the Beneficiary or the
Trustee, and shall pay all costs and expenses, including cost of evidence of title and
reasonable attorneys' fees, in any such action or proceeding in which the Beneficiary or
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67
the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed
of Trust.
10. Should the Trustor fail to make any payment or do any act as herein
provided, then the Beneficiary or the Trustee, without obligation to do so, and following
notice to or demand on the Trustor, and without releasing the Trustor from any
obligation hereof: (i) may make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, the Beneficiary or the Trustee
being authorized to enter on the Property for such purposes; (ii) may commence,
appear in and/or defend any action or proceeding purporting to affect the security hereof
or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest
or compromise any encumbrance, charge or lien which in the judgment of either
appears to be prior or superior hereto (except for the deeds of trust, encumbrances and
liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as
such terms are defined below); and (iv) in exercising any such powers, may pay
necessary expenses, employ legal counsel and pay such counsel's reasonable fees.
All such amounts paid by the Beneficiary or the Trustee hereunder shall be added to the
obligations secured by this Deed of Trust.
The term "Construction/Permanent Financing Loan" means, collectively, the
construction financing and take-out financing, and any refinancing or replacement of
that financing from time to time, to be provided by a commercial or other lender(s);
provided, however, that (i) before entering into any Construction/Permanent Financing
Loan, the Trustor shall give the Beneficiary notice of the Construction/Permanent
Financing Loan and copies of the loan agreement and all other loan documents
evidencing the Construction/Permanent Financing Loan; (ii) the funds disbursed from
each Construction/Permanent Financing Loan shall be used only for costs and charges
associated with the loan and for the operation, maintenance and/or improvement of the
Project or the Property as provided in the Agreement or to refinance existing
indebtedness; (iii) the interest on each Construction/Permanent Financing Loan shall be
at a reasonable rate based on all the facts and circumstances; and (iv) the combined
amounts of all Construction/Permanent Financing Loans or any re-financing thereof and
the Note secured by this Deed of Trust shall not exceed one hundred percent (100%) of
the fair market value of the Property as improved by the Project under the Agreement
(such value to be determined by a qualified appraiser reasonably acceptable to Trustor
and Beneficiary. Notwithstanding any limitations set forth above, in the event of any
subsequent refinancing of a Construction/Permanent Financing Loan, Trustor may use
funds from any refinancing that are in excess of the original principal of the initial
Construction/Permanent Financing Loan to compensate Trustor for any negative cash
flow of the Project or to fund other projects by Trustor or a related entity in the urban
core of the City of Palm Springs. (By way of illustration only, and without limiting the
foregoing, if the initial Construction/Permanent Financing Loan for the Project is
$4,000,000 and, while satisfying the rate and loan-to-value limits set forth in
subparagraphs (iii) and (iv), Trustor subsequently obtains refinancing in the amount of
$5,000,000, Trustor may use the additional $1,000,000 in excess of the original
Construction/Permanent Financing Loan to compensate Trustor for negative cash flow
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or for another project in the urban core without making any prepayment on the Note
secured by this Deed of Trust.)
11. The Beneficiary shall have the right, but not the obligation, to pay when
due fire or other insurance premiums required hereunder if the Trustor fails to make
such payments. All such amounts paid by the Beneficiary hereunder shall be added to
the obligations secured by this Deed of Trust.
12. The Trustor shall pay immediately upon demand all sums so expended by
the Beneficiary or the Trustee under this Deed of Trust, with interest from date of
expenditure at the legal rate.
13. If the Trustor fails to pay any amount required by the Note or this Deed of
Trust when due and payable, or fails to perform all other covenants, conditions and
agreements of the Note, this Deed of Trust or the Participation Agreement (following
delivery of notice and expiration of the cure period, if any, provided therein), the amount
of the Note, including unpaid principal and late charges, and all other charges and
amounts required by the Note and this Deed of Trust shall, at the option of the
Beneficiary, become immediately due and payable. This shall be in addition to and
without limitation on any other remedy or right available to the Beneficiary for such
failure.
14. The Trustor shall not voluntarily create or permit to be created against the
Collateral any lien or liens except as specifically permitted by this Deed of Trust or
otherwise authorized by the Beneficiary. The Trustor shall keep and maintain the
Collateral free from the claims of all persons supplying labor or materials who will enter
into the construction, rehabilitation, renovation or repair of any and all buildings or
improvements now existing or to be erected on the Property.
15. By accepting payment of any sum secured by this Deed of Trust after its
due date or by accepting partial payment of any such sum, the Beneficiary does not
waive its right either to require prompt payment when due of all other sums so secured
or to declare default for the Trustor's failure to pay.
16. If the Trustor, without the prior written consent of the Beneficiary: (i)
agrees to or actually sells, conveys, transfers or disposes of the Collateral or any
interest therein or portion thereof, or (ii) assigns or delegates any right or obligation
under the Agreement, the Note or this Deed of Trust, then all amounts secured by this
Deed of Trust may be declared immediately due and payable, at the option of the
Beneficiary. The Beneficiary shall not unreasonably withhold its consent to any such
transaction. The Beneficiary's consent to one transaction of this type shall not be a
waiver of the right to require consent to future or successive transactions.
17. As further security for the full and complete performance of each and
every obligation, covenant, agreement and duty of the Trustor contained herein or in the
Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and
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lien on all of the Collateral. This Deed of Trust shall serve as a security agreement and
financing statement created pursuant to the California Commercial Code, and the
Beneficiary will have and may exercise all rights, remedies and powers of a secured
party under the California Commercial Code. Further, this Deed of Trust is filed as a
fixture filing pursuant to the California Commercial Code and other applicable law, and
covers goods which are or are to become fixtures.
18. Should the Property, the buildings or improvements thereon, or any part of
any of them be taken or damaged by reason of any public improvement or
condemnation proceeding, or damaged by fire or earthquake or in any other manner,
the Beneficiary will be entitled, subject to the rights of the holder of any senior deed of
trust securing a Construction/Permanent Financing Loan, to all of the Trustor's interest
in compensation, awards and other payments or relief therefor; and, following the
occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly
with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in
its own name, any action or proceeding, or to make any compromise or settlement, in
connection with such taking or damage. All such compensation, awards, damages,
rights of action and proceeds, including the proceeds of any fire and other insurance
affecting the Property or the buildings or improvements thereon, are hereby assigned to
the Beneficiary, subject to the rights of the holder of any senior deed of trust securing a
Construction/Permanent Financing Loan. After deducting therefrom all its expenses,
including reasonable attorneys' fees, and if there has not occurred a default under the
Note, the Beneficiary shall apply all such proceeds to restoring the Property or the
buildings or improvements thereon, or if there has been such default, or if the Trustor
determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the
amount due under the Note and any amounts due under this Deed of Trust. Any
balance of such proceeds still remaining shall be disbursed by the Beneficiary to the
Trustor.
19. If the Trustor fails to perform any covenant or agreement in this Deed of
Trust or the Participation Agreement, or if a default occurs under the Note, the
Beneficiary may declare all obligations and sums secured hereby immediately due and
payable by delivery to the Trustee of written declaration of default and demand for sale
and written notice of default and of election to cause the Collateral to be sold, which
notice the Trustee shall cause to be duly filed for record, and the Beneficiary may
foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to
be in default hereunder for failure to make any payment when due or for failure to
perform any other covenant or agreement contained herein until thirty (30) days after
written notice of such failure is given to the Trustor and Trustor is afforded a reasonable
opportunity to cure the default. The Beneficiary shall also deposit with the Trustee this
Deed of Trust, the Note and all other documents evidencing the obligations or sums
secured hereby.
20. After the lapse of such time as may then be required by law following the
recordation of the notice of default, and notice of sale having been given as then
required by law, the Trustee, without demand on the Trustor, shall sell the Property at
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the time and place fixed by the Trustee in the notice of sale, either as a whole or in
separate parcels, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of sale. The
Trustee may postpone sale of all or any portion of the Property by public announcement
at the time and place of sale, and from time to time thereafter may further postpone the
sale by public announcement at the time fixed by the preceding postponement. The
Trustee shall deliver to the purchaser its deed conveying fee title to the Property or
portion thereof so sold, but without any covenant or warranty, express or implied. The
recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary,
may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment
of: (i) the expenses of the sale, together with the reasonable expenses of the trust
created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees
for conducting the sale, and the actual cost of publishing, recording, mailing and posting
notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in
connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums
expended under the terms hereof not then repaid, with accrued interest at the legal rate;
(iv) all other sums then secured hereby; and (v) the remainder, if any, to the person or
persons legally entitled thereto.
21. The Beneficiary may from time to time substitute a successor or
successors to the Trustee named herein or acting hereunder to execute the trusts under
this Deed of Trust. Upon such appointment, and without conveyance to the successor
trustee, the latter shall be vested with all title, powers and duties conferred upon any
Trustee herein named or acting hereunder. Each such appointment and substitution
shall be made by written instrument executed by the Beneficiary, containing reference
to this Deed of Trust and its place of record, which instrument, when duly recorded in
Riverside County, California, shall be conclusive proof of proper appointment of the
successor trustee.
22. Upon written request of the Beneficiary stating that all obligations secured
hereby have been satisfied and all sums secured hereby have been paid, and upon
surrender of this Deed of Trust and the Note to the Trustee for cancellation and
retention, and upon payment of its fees, the Trustee shall reconvey, without warranty,
the Collateral then held hereunder. The recitals in such reconveyance of any matters or
facts shall be conclusive proof of the truthfulness thereof. The grantee in such
reconveyance may be described as "the person or persons legally entitled thereto."
23. The trusts created by this Deed of Trust are irrevocable by the Trustor.
24. This Deed of Trust applies to, inures to the benefit of, and binds of the
Trustor, the Beneficiary and the Trustee and their respective administrators, executors,
officers, directors, transferees, successors and assigns. The term "Beneficiary" shall
include not only the original Beneficiary hereunder but also any future owner and holder,
including pledges, of the Note secured hereby. In this Deed of Trust, whenever the
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context so requires, the masculine gender includes the feminine and/or neuter, and the
singular includes the plural.
25. In addition to and without limitation on any other rights or remedies of the
Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action
or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the
Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in
connection with such action or proceeding, including legal expenses and reasonable
attorneys' fees and court costs.
26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly
executed and acknowledged, is made public record as provided by law. Except as
otherwise provided by law, the Trustee is not obligated to notify any party hereto of
pending sale under this Deed of Trust or of any action or proceeding in which the
Trustor, the Beneficiary or the Trustee is a party, unless brought by the Trustee.
27. The Trustor requests that a copy of any notice of default and of any notice of sale
hereunder be mailed to it at 2010 Main St. Suite 1250, Irvine, Ca. 92614.
28. The Trustor shall cause a copy of each deed of trust securing a
Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately
upon its recordation, so that the Beneficiary may prepare and record a request for
notice of default and notice of sale thereunder pursuant to California Civil Code Section
2924b.
29. PROVIDED THAT NO NOTICE OF DEFAULT HEREUNDER THEN
APPEARS OF RECORD AND SUBJECT TO THE CONDITIONS IN SECTION 10
ABOVE AND/OR IN THE PARTICIPATION AGREEMENT, THIS DEED OF TRUST
SHALL BE SUBORDINATE AND SUBJECT TO ANY DEED OR DEEDS OF TRUST
SECURING A CONSTRUCTION/PERMANENT FINANCING LOAN. TRUSTOR
SHALL, UPON REQUEST OF BENEFICIARY, EXECUTE SUCH SUBORDINATION
AGREEMENT OR OTHER DOCUMENTATION REASONABLY NECESSARY TO
SUBORIDINATE THE LIEN AND CHARGE OF THIS DEED OF TRUST TO LIEN OF
ANY DEED OR DEEDS OF TRUST SECURING A CONSTRUCTION/PERMANENT
FINANCING LOAN.
30. This Deed of Trust shall be interpreted and enforced, and the rights and
duties (both procedural and substantive) of the parties hereunder shall be determined,
according to California law.
31. Capitalized terms not otherwise defined herein shall have the meanings
given them in the Agreement or the Note.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date
set forth above.
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TRUSTOR:
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ACKNOWLEDGMENTS
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On 2011, before me,
Notary Public, personally appeared
who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
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EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Palm Springs, Riverside County, California, described as follows:
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
RIVERSIDE, CITY OF PALM SPRINGS, AND IS DESCRIBED AS FOLLOWS:
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Certificate of Completion
RECITALS :
A. By an Owner Participation Agreement (the "Agreement") dated
f ], 2011 between PS Housing Partners, LLP., a California Limited
Partnership ("Owner") and the Community Redevelopment Agency of the City of Palm
Springs, a public body corporate and politic ("Agency"), Owner agreed to rehabilitate
certain residential units on the premises legally described in Attachment "A" hereto (the
"Property") and preserve the Affordable Units, as defined in the Agreement as rental
housing for Low-Income Households with the assistance of Agency housing set aside
funds while meeting the Affordable Housing, income targeting and other requirements of
the Community Redevelopment Law set forth at California Health and Safety Code
Sections 33000 et seq. for a fifty-five (55) year Affordability Period according to the
terms and conditions of the Agreement.
B. The Agreement was recorded on ] , 2011 in the Official
Records of Riverside County, California as Instrument No.
C. Under the terms of the Agreement, after Owner completes the construction on
the Property, Owner may ask Agency to record a Certificate of Completion.
D. Owner has asked Agency to furnish Owner with a recordable Certificate of
Completion.
E. Agency's issuance of this Certificate of Completion is conclusive evidence that
Owner has completed the construction on the Property as set forth in the Agreement.
NOW THEREFORE:
1. Agency certifies that Owner commenced the construction work on the
Project on r ], 20 , and completed the construction
work on the Project on , 20 , and has done so in full compliance
with the Agreement.
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