HomeMy WebLinkAbout5/18/2005 - STAFF REPORTS (5) COMMUNITY REDEVELOPMENT AGENCY AND CITY COUNCIL MAY 18, 2005
JOINT PUBLIC HEARING
SUBJECT: JOINT PUBLIC HEARING TO APPROVE A DISPOSITION AND
DEVELOPMENT AGREEMENT WITH THE HIGHLANDS PALM
SPRINGS VENTURE, A NEVADA LIMITED LIABILITY COMPANY,
TO CONSTRUCT FOUR (4) MODERATE-INCOME HOMES ON
AGENCY-OWNED PARCELS IN THE DESERT HIGHLAND
GATEWAY AREA FOR THE PURPOSE OF FACILITATING THE
DESERT HIGHLAND INFILL PROGRAM
FROM: David H. Ready, Executive Director
BY: Community & Economic Development
SUMMARY:
This DDA is the second of several DDAs intended to incentivize the development of
moderate-income single family homes on Agency-owned lots in the Desert Highland
Gateway area. The Agency approved an agreement with Century Vintage Homes in
December, 2004; while the majority partner in this partnership is based in Inglewood,
the partnership includes representation from the neighborhood and the terms of the deal
are the same as the Century Homes deal.
RECOMMENDATION:
REDEVELOPMENT AGENCY RECOMMENDATION:
Adopt Resolution No. "A RESOLUTION OF THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA
APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT WITH HIGHLAND
PALM SPRING VENTURE, LLC., A NEVADA LIMITED LIABILITY COMPANY, TO
EFFECTUATE THE DEVELOPMENT OF FOUR MODERATE-INCOME SINGLE-
FAMILY HOMES IN THE DESERT HIGHLAND GATEWAY NEIGHBORHOOD,
MERGED AREA NO. 1."
CITY COUNCIL RECOMMENDATION:
Adopt Resolution No. "A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA CONCURRING WITH THE COMMUNITY
REDEVELOPMENT AGENCY REGARDING THE APPROVAL OF A DISPOSITION
AND DEVELOPMENT AGREEMENT WITH THE HIGHLAND PALM SPRINGS
VENTURE, LLC FOR THE DEVELOPMENT OF FOUR SINGLE-FAMILY MODERATE-
INCOME HOMES IN THE DESERT HIGHLAND AREA OF MERGED AREA NO. 1."
Item No. RA2 .
Community Redevelopment Agency
May 18, 2005
Page 2
STAFF ANALYSIS:
The Community Redevelopment Agency established a Desert Highland Infill program in
2002 with the issuance of an RFP to builders interested in constructing single-family
homes in the neighborhood on Agency-owned parcels. These properties will be
targeted at moderate-income families recently priced out of the single-family market in
Palm Springs, including the market for new homes in the Desert Highland area
Century Vintage Homes, the builder of the neighboring Mountain Gate project, was the
first developer under this program and will start construction on their five houses within
30 days. At the commencement of the program, the Agency owned five parcels in the
Desert Highland Gateway area and purchased from Coachella Valley Housing Coalition
five more. In addition, the Agency is acquiring two lots from the County of Riverside
Tax Collector (which agreement was approved by the County on March 31, 2005) and
the City approved an exchange of two C-1 lots for an 8,000 s.f. R-1 lot; that exchange
has also closed escrow.
Staff had always intended to use the Century DDA as a model for other homes to be
constructed in the neighborhood on the additional lots. This LLC is one of two other
builders active in the neighborhood to develop a similar package as the Century DDA.
Several issues have made the negotiations with all of the builders challenging: (1) staff
originally had a concern that a subsidy on the part of the Agency could trigger prevailing
wages on the project, thereby making it infeasible, but affordable housing remains
exempted from prevailing wages (except when receiving state or federal funds); (2)
since the Agency's resources are limited, staff set the income guidelines at "moderate-"
rather than `low" income in an effort to reduce the Agency's subsidy; and (3) laying out
the actual homes or models on the lots created development standards issues with the
possible need for variances, but those have also been resolved.
This DDA proposes that Highlands Venture construct four (4) 1,400 s.f. homes on the
lots. Staff has analyzed their pro forma against the model pro forma for subsidized
single family housing created by the National Development Council (NDC) as well as
Century's pro forma for the same project. The size and scale of the developers create
differences in the pro forma: Century has heavier overhead but has economies of scale
on direct costs, while the smaller builder is somewhat leaner but pays more in direct
cost. Within the pro forma are the following assumptions: (1) that the Developer pays
the appraised value for each of the lots; (2) that the Developer is entitled to a developer
profit; (3) that both hard and soft costs are part of the project costs; and (4) that the
Developer has set a home price that is competitive in the market (at market or slightly
below). Staff confirmed the price by learning that the other new homes in the
neighborhood were listing for $209,000. Since the December meeting approving the
Century deal, several new homes have been listed and sold for in excess of'$30q,000 in
the neighborhood (though these were slightly larger than 1,600 s.f.).
O')ol
Community Redevelopment Agency
May 18, 2005
Page 3
The Developer will sell the homes for $229,990 each. Staff had originally tried to
reduce the sales price to a $159,990 level but in that instance the Developer would
have needed a subsidy on each of the homes. Most of the subsidy per home, at the
moderate income level, would have been approximately $25,000-$35,000 and can be
accomplished by the contribution of the lot at a value of $22,000 per lot. (The
Developer will pay the Agency fair market value for the lot at the close of escrow to the
buyer — and then the subsidy could then be passed on to the buyer.) Allowing the
Developer to charge a market price for the home where they could cover all of their
costs and make a small profit eliminates the need for Developer subsidy, but posed two
risks: (1) it creates a market risk in that there are more alternatives available to potential
buyers in the same price range and (2) from an underwriting perspective, because the
monthly housing expense is limited under redevelopment law, a higher price would
require more cash subsidy to the buyers from the Agency in the form of second loans.
The appraisal and rising market reduce some of the worry about market risk; and, two
sample loan worksheets are included, one for a family at the highest possible income in
the moderate income category, and one for a family at $51,000 in income. In the first
case no buyer subsidy would be needed; in the second case a small amount of subsidy
would be required. Contributing the value of the parcels ($22,000) could accomplish all
or most of the necessary subsidy for a wide range of buyers, even with the home priced
"at market."
FISCAL IMPACT:
The total amount of subsidy to the buyers of the four homes, including the value of the
lots will be in excess of $120,000 and as much as $200,000. This will come from
low/mod housing money or, potentially, from CDBG Program Income. There is no
General Fund impact.
AJohnm nd, irectorof David H. Ready, Exe61, irector
y nomic Development
ATTACHMENTS:
1. Agency Resolution
2. City Resolution
3. Public Hearing Notice
4. Disposition and Development Agreement
I
•
r
a
Proof of Publication
In Newspaper
STATE OF CALIFORNIA
County of Riverside
Laura Reyes says:
1. 1 am a citizen of the United States, a COMMUNITY REDEVELOPMENT AGENCY/CITY COUNCIL
resident of the City of Indio, County of CITY OF PALM SPRINGS
NOTICE N JOINT PUBLIC HEARING
DISPOSITION HLA D S VENTURE, AGREEMENT
Riverside, State of California, and over HIGHLANDS VENTURE,LLC
the ears.age of 18 NOTICE IS HEREBY GIVEN THAT the Community
9 y Redevelopment Agency of the City of Palm Springs,California
2. 1 am the Office & Production Manager of ("Agency"),and the City Council of the Oily of Palm Springs,
9 California,will hold a loin)public hearing an May 1B,2005,el
--- The -Public --Record -a - newspaper of - - - aooroxim-t-ly 6:00Pm.or as soon as possible[hereafter,In
the City Council Chamber at City Hall,3200 E.Tahquilz Canyon
general circulation printed and published in Way,Palm Springs,CA 92262.
the City of Palm Springs, County Of The project location is in the Dosed Highland Gateway
—rhea of the City of Palm Springs,CA 92262.
Riverside, State of California. Said The The purpose of this hearing Into consider aDispoemon
and Development Agreement ("DDA") between Highlands
Public Record is a newspaper of general Vealum,LLC and Community Redevelopment Agency of the
circulation as that term is defined in City of Palm Springs for four single family mflll homes for mod-
I drays income households infailhs Desert Highland Gateway area
Government Code section 6000, Its status of.the City iofPalm Springs north of,Las Vegas Road, Palm
Springs,CA,92262.All of the homeswould,be,approximately
as such having been established by judicial 1,400 square feet.The homes would be located on scattered
decree of the Superior Court of the State of cites within the Desert Highland neighborhood.The Agency
p shall require[he[[he homes be available for moderate income
California in and for the County of Riverside households,with mortgages available to households at 110/'
Of area median Income.The homes will be subject 3o afford-
in Proceeding No. Indio 49271 dated March ability restrictions contained in a Regulatory Agreement.The
Agency may provide subsidy to the homeowner to make the
31, 1987, entered in Judgment Book No. 129, homes affordable.Such subsidy shall be repayable subject to
page355, on March 31, 1 987. the terms contained ima Promissory Note and a Deed of Trust.
Finally,in order o make the homes affordable and allow
3. The Public Record is a newspaper of the developer do make-a standard return on.inves[ment.for the
.conclus ion, the Agency may contribute the Agency-owned
general circulation ascertained and land to the Project
established in the Cityof Palm Springs in the The General Partner in the project is Angeles -
I Investment Group and Kernel Management and Development,
County of Riverside, State of California, I a Nevada,LTD.Liability'Company,located in Inglewood,CA.
The staff report and other supporting dipsomania regarding
Case No. RIC 358286, Filed June 8, 2001. this matter are avallable'for public review at the City Hall between
the boors of 8:00 a.m.antl 5:00 p in Monday through Friday Please
4. The notice, of which the annexed is a coolest the City Clerks Department at(760)323-82M if you would
true printed co published in the Iikaao schedule an appointmentlo.revidw these documents, -
P PY was Response to this notice can be made verbally at the
newspaper on the following publication Public Hearing and/or in writing before the hearing.Written
comments can'be made to the Community Redevelopment
dates to wit. Agency ofahe City of Palm Springs and City Council by letter
,(for mail or hand delivand1o: -
JamesThompson,City Clerk .
May 3, 2005 3200'E.Tahquitz Canyon Way
P.O.Box 2743
r,. Palm Springs,CA 92263
1 certifyunder penalty Of that the Any challenge of the proposed project in court may be
P y perjury limited to raising only those Issues raised at the public hearing
above is true and correct. described in this notice,or in written correspondence delivered
to the City Clerk at,or prior,to the public hearing.(Government
Dated at Palm Springs, California, this 3rd Code Section 65009(b)(2)).
dip of May, 2005. An opportunity will be given at said hearing for all inter-
y y, sled persons to be heard.Questions regarding this case may
be directed to Jahn S Raymond, Director of Community'&'
Economic Developmenl(760)323-8228.
Si necesim ayuda con safe carte,perfavor[lame a Is
Ciudad de Palm Springs y posits nobler con Nadine Fieger
jelefono(760)323.8245
/s/James Thompson,City Clerk
May 3,2005
i
,
La Reyes
f e & Produ n ager
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
APPROVING A DISPOSITION AND DEVELOPMENT
AGREEMENT WITH HIGHLANDS PALM SPRINGS
VENTURE, LLC, A NEVADA LIMITED LIABILTY
COMPANY, TO EFFECTUATE THE DEVELOPMENT
OF FOUR MODERATE-INCOME SINGLE-FAMILY
HOMES IN THE DESERT HIGHLAND GATEWAY
NEIGHBORHOOD, MERGED AREA #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, the Agency solicited proposals from builders and developers interested in
constructing affordable single-family homes on Agency-owned parcels in the Desert
Highland Gateway neighborhood, and received a proposal from Highland Palm Springs
Venture, LLC, a group with ties to the neighborhood; and
WHEREAS, the Agency has negotiated an Agreement with the Developer whereby the
Developer would construct four single-family homes on Agency-owned lots in the
neighborhood; and
WHEREAS, Section 33430 of the Community Redevelopment Law allows that an
agency may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99
years, exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of
trust, or otherwise, or otherwise dispose of any real or personal property or any interest
in property;" and
WHEREAS, the Developer agrees to restrict, though a Regulatory Agreement
approved as an attachment to the Disposition and Development Agreement, the resale
provisions on the five homes to make the homes affordable to families with no more
than 110% of Area Median Income (AMI); and
WHEREAS, a Notice of Public Hearing concerning the Disposition and Development
Agreement was published in accordance with applicable law; and
WHEREAS, the City Council and Agency have considered the staff report, and all the
information, testimony and evidence provided during the public hearing on May 18,
2005.
0003
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of
the City of Palm Springs, as follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA),
Public Resources Code Section 21000 et seq., the Community
Redevelopment Agency finds that this Project qualifies as a "In-Fill"
categorical exemption 14 CCR 15332. The Agency finds as
follows:
(a) The project is consistent with the applicable general plan
designation and all applicable general plan policies as well as with
applicable zoning designation and regulations.
(b) The proposed development occurs within city limits on a
project site of no more than five acres substantially surrounded by
urban uses.
(c) The project site has no value as habitat for endangered,
rare or threatened species.
(d) Approval of the project would not result in any significant
effects relating to traffic, noise, air quality, or water quality.
(e) The Site can be adequately served by all required utilities
and public services.
SECTION 3. The Developer has proposed building 4 moderate income single family
homes on infill lots in the Desert Highland neighborhood. The
models are approximately 1,400 square feet. The project has not
received any reductions in development standards or any density
bonuses allowed under Section 65915 of the California
Government Code, and contains architectural and landscaping
upgrades. The project will help the City meet its requirements to
provide affordable housing under California law.
SECTION 4. The Agency agrees, through this Disposition and Development
Agreement, to contribute the five parcels at an average value of
$22,000 each to the project, and to write down the price of each
house another $8,000 to $15,000. In addition, the Agency shall
work with the buyers of the homes and offer buyer subsidies that
will vary by household income. In addition, through the creation of
a separate program, the City could participate in the project
through the use of CDBG- or other funds. The Agency retains
reverter rights if the Developer fails to proceed or complete the
project. In addition, the Agency agrees to assist the Developer in
marketing the properties and qualifiying buyers. The buyer
subsidy shall remain on the title of the home as a "silent second";
in addition, the Regulatory Agreement shall contain equity straring
provisions as required by California Law.
0004
SECTION 5. The Agency does hereby find and determine as follows:
A) The parcels were acquired by the Community
Redevelopment Agency for the purposes of providing low- and
moderate-income housing on them, mostly as part of several
phases of self-help housing in the neighborhood.
B) The DDA effectuates the purposes of the Community
Redevelopment Law by assisting in the development of housing
affordable to families with incomes below 120% of Area Median
Income and preserving the affordability of that housing for a period
of 45 years.
C) The DDA 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 Amended and
Restated Redevelopment Plan for Merged Project Area #1, 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 DDA with Highlands Palm
Springs Venture, LLC is hereby approved and incorporated herein
by this reference.
I
01005
SECTION 8. The Chairman, or his designee, is hereby authorized to execute on
behalf of the Agency the Disposition and Development Agreement
and other documents necessary to the Agreement, and make
minor changes as may be deemed necessary, in a form approved
by Agency Counsel.
ADOPTED this day of 2005.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED & APPROVED AS TO FORM
1
00 G
SECTION 8. The Chairman, or his designee, is hereby authorized to execute on
behalf of the Agency the Disposition and Development Agreement
and other documents necessary to the Agreement, and make
minor changes as may be deemed necessary, in a form approved
by Agency Counsel.
ADOPTED this day of_ 2005.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By _
Assistant Secretary Chairman
REVIEWED & APPROVED AS TO FORM
I
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA,
CONCURRING WITH THE COMMUNITY
REDEVELOPMENT AGENCY REGARDING
THE APPROVAL OF A DISPOSITION AND
DEVELOPMENT AGREEMENT WITH
HIGHLAND PALM SPRINGS VENTURE, LLC
FOR THE DEVELOPMENT OF FOUR SINGLE-
FAMILY MODERATE-INCOME HOMES IN
THE DESERT HIGHLAND AREA OF MERGED
AREA#1
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs
that it concurs with the action of the Community Redevelopment Agency regarding the
approval of a Disposition and Development Agreement with Highland Palm Springs
Venture, LLC for the development of four single-family moderate-income homes in the
Desert Highland area of Merged Area #1.
ADOPTED this day of 2005.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED & APPROVED AS TO FORM
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY,
a public body, corporate and politic
and
THE HIGHLANDS PALM SPRINGS VENTURE
a Nevada limited liability company
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is entered
into as of the date executed by the Agency, by and between the PALM SPRINGS
COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic
("Agency"), and THE HIGHLANDS PALM SPRINGS VENTURE, a Nevada limited liability
company ("Developer"). Agency and Developer agree as follows:
1. I. (4100) PURPOSE OF THE AGREEMENT
2. A. (§101) Purpose of the Aqreement.
This Agreement and the Attachments hereto are intended to effectuate the
Redevelopment Plan for the Merged Project Area #1(the "Redevelopment Project Area") by
providing for the disposition and development of a portion of the Redevelopment Project
Area designated herein as the "Site" and the development of the "Project" thereon (as those
terms are defined herein). The development of the Site pursuant to this Agreement, and the
fulfillment generally of this Agreement, are in the vital and best interests of the City of Palm
Springs ("City") and the welfare of its residents, and in accordance with the public purposes
and provisions of applicable federal, state and local laws and requirements.
3. B. (§102) Description of Project.
This Agreement provides for the development of detached single family homes on
separate lots that make up the overall Site. "The Site" consists of five in-fill units to be
constructed on five vacant parcels in the existing Desert Highlands Gateway Neighborhood.
At the time of this Agreement Agency owns all five of the parcels. The Project is to provide
affordable housing units, described in detail in the Scope of Development, with the units
made subject to recorded covenants consistent with state law requirements for affordable
housing.
4. II. (§200) DEFINITIONS
The following terms as used in this Agreement shall have the meanings given unless
expressly provided to the contrary:
5. A. (§201) Agreement.
The term "Agreement" shall mean this entire Disposition and Development
Agreement, including all attachments, which attachments are a part hereof and incorporated
herein in their entirety, and all other documents incorporated herein by reference.
6. B. (§202) Cam.
The term "City" shall mean the City of Palm Springs, a municipal corporation.
7. C. (§203) Closing.
oc"�
The term "Closing" shall mean the closing of the Escrow by the Escrow Agent's
distributing the funds and documents received through Escrow to the party entitled thereto
as provided herein, which closing shall occur on or before the date established in the
Schedule of Performance.
8. D. (§204) Days.
The term "days" shall mean calendar days and the statement of any time period
herein shall be calendar days, and not working days, unless otherwise specified.
9. E. (§205) Deed.
The term "Deed" or "Grant Deed" shall mean that Grant Deed in substantially the
form attached hereto as Attachment No. 6 by which Agency as Grantor will convey fee
simple absolute title to the Site to Developer as Grantee. The Deed shall contain conditions
or other restrictions designed to carry out the purposes of this Agreement.
10. F. (§206) Effective Date.
The Effective Date of this Agreement shall occur after public hearing and approval
hereof by the Agency, and shall mean the date this Agreement is executed on behalf of
Agency.
11. G. (§207) Enforced Delay.
The term "Enforced Delay" shall mean any delay described in Section 903 caused
without fault and beyond the reasonable control of a party, which delay shall justify an
extension of time to perform as provided in Section 903.
12. H. (§208) Escrow.
The term "Escrow" shall mean the escrow established pursuant to this Agreement for
the conveyance of title to the Site from Agency to Developer.
13. I. (§211) Lower Income Household.
The term "Lower Income Household" shall mean a household earning no more than
eighty percent (80%) of the median income for a household of the size of a Qualified
Purchaser household living in Riverside County set forth in the regulations published by the
California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50093, or its successor statute.
14. J. (§212) Moderate Income Household.
The term "Moderate Income Household" shall mean a household earning no more
than one hundred twenty percent (120%) of the median income for a household of the size
of a Qualified Purchaser household living in Riverside County set forth in the regulations
published by the California Department of Housing and Community Development pursuant
to Health and Safety Code Section 50093, or its successor statute.
15. K. (§213) Aqencv/Developer Promissory Note.
The term "Agency/Developer Promissory Note" or "Developer Note" shall mean that
Promissory Note in substantially the form attached hereto as Attachment No. 8.
16. L. (§ 215 Agencv/Developer Deed of Trust
The term "Agency/Developer Deed of Trust" or "Developer Deed of Trust" shall
mean that deed of trust in substantially the form attached hereto as Attachment No. 9
securing the Developer Note.
17. M. (§214) Aqencv/Purchaser Promissory Note.
The term "Agency/Purchaser Promissory Note" or "Purchaser Note" shall mean that
the Promissory Note in substantially the form attached hereto as Attachment No. 10, which
shall describe the financial assistance being made to the Qualified Purchaser in the event
such Qualified Purchaser requires assistance from the Agency. The form of the Promissory
Note may be modified to conform with the Agency's affordable housing assistance
programs in effect at the time of transfer to the Qualified Purchaser.
18. N. (§216) Agency/Purchaser Deed of Trust.
The term "Agency/Purchaser Deed of Trust" or "Purchaser Deed of Trust" shall
mean that Deed of Trust with Assignments of Rents in substantially the form attached
hereto as Attachment No. 11, which shall be executed and recorded to secure the Agency
Promissory Note and Regulatory Agreement. The Purchaser Deed of Trust shall be
executed by a Qualified Purchaser of a unit. This form may be modified to conform to the
Agency affordable housing assistance programs in effect at the time of the transfer to the
Qualified Purchaser.
19. O. (§218) Project.
The term "Project" shall mean all of the improvements required to be constructed by
Developer on the Site and each Parcel thereof pursuant to this Agreement, including, but
not limited to, construction of buildings, glass and concrete work, landscaping, construction
of driveways, and related improvements. The overall Project is more particularly described
in the Scope of Development attached hereto as Attachment No. 4. Upon completion, the
Project will be a mixture of affordable housing units as further described in Section 102 and
the Scope of Development.
20. P. (§219) Purchase Price.
The term "Purchase Price" shall mean that amount agreed upon by the parties as
the payment to be made by Developer to Agency for the purchase of the Site, which
Purchase Price shall be the amount of Twenty-Two Thousand Dollars ($22,000.00) per
parcel for up to five (5) parcels for a total of One Hundred and Ten Thousand Dollars
($110,000). Said Purchase Price shall be paid as a carryback note (the Developer Note) of
Twenty-Two Thousand on each parcel. The note arnount shall be repaid as provided in the
Developer Note.
001) 4
21. Q. (§220) Qualified Purchaser.
The term "Qualified Purchaser" shall mean those persons who are members of
Lower or Moderate Income Households and who satisfy all of the requirements to purchase
a unit, which requirements are described in detail in the Regulatory Agreement attached
hereto as Attachment No. 7.
22. R. (§221) Redevelopment Plan.
The term "Redevelopment Plan" shall mean the Amended and Restricted
Redevelopment Plan for the Merged Redevelopment Project Area No. 1 in the City of Palm
Springs, as adopted by Ordinance No. 1584 of the City Council on May, 31, 2000, and as
such Redevelopment Plan has been amended from time to time. Agency hereby warrants
and represents that the Redevelopment Plan was validly adopted and is in full force and
effect, that the applicable limitations period for challenging the validity of the
Redevelopment Plan has expired and that the proposed Project is in accordance with and
permissible under the Redevelopment Plan. A copy of the Redevelopment Plan is on file in
the office of the City Clerk of the City, located at 3200 E. Tahquitz Canyon Way, Palm
Springs, California 92262. The Redevelopment Plan is incorporated herein by reference
and made a part hereof as though fully set forth herein.
23. S. (§222) Redevelopment Project Area.
The term "Redevelopment Project Area" shall mean the Highland Gateway
Constituent Area of the Palm Spring's Merged Redevelopment Project Area No. 1, which is
located in the City of Palm Springs, California. The exact boundaries of the Redevelopment
Project Area are specifically described in the Redevelopment Plan.
24. T. (§223) Regulatory Aqreement.
The term "Regulatory Agreement" shall mean that Regulatory Agreement and
Declaration of Covenants and Restrictions attached hereto as Attachment No. 7, running
with the land and providing for the use, maintenance, and continued affordability of the
units. The form of the Regulatory Agreement may be modified to conform with the Agency's
most current guidelines for affordable housing second trust deeds and promissory notes.
25. U. (§224) Release of Construction Covenants.
The term "Release of Construction Covenants" shall mean that document prepared
in accordance with Section 513 of this Agreement, in the form attached as Attachment No.
5, which shall evidence that the construction and development of the Project has been
satisfactorily completed. At the request of Developer, separate Releases may be issued for
each Parcel.
26. V. (§225) Schedule of Performance.
The term "Schedule of Performance" shall mean that certain Sch dule of
Performance attached hereto as Attachment No. 3.
27. W. (§226) Site and Site Map.
The Project shall be located upon that real property, hereinafter referred to as the
"Site," consisting of five up to (5) non-contiguous Parcels of land in the City of Palm Springs,
as shown in the "Site Map" attached hereto as Attachment No. 1. The Site consists of up to
five (5) individual subdivided Parcels located in the Desert Highland Gateway
neighborhood. The Site and its Parcels are legally described in the "Legal Description"
attached hereto as Attachment No. 2. Unless otherwise specified, any reference herein to
the Site shall include all Parcels thereof.
28. X. (§227) Title.
The term "Title" shall mean the fee simple title conveyed to Developer pursuant to
the Deed.
29. Y. (§228) Title Company.
The term "Title Company' shall mean the title company to be mutually agreed to by
the parties.
30. 111. (§300) PARTIES TO THE AGREEMENT
31. A. (§301) Agency.
Agency is a public body, corporate and politic, exercising governmental functions
and powers, organized and existing under the Community Redevelopment Law of the State
of California (Health and Safety Code Sections 33000, et seq.). The office of Agency is
located at 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262. The term
"Agency," as used in this Agreement, includes the Palm Springs Community
Redevelopment Agency and any assignee of, or successor to, its rights, powers and
responsibilities.
32. B. (§302) Developer.
33. 1. Identification. Developer is ANGELES INVESTMENT
GROUPAND KEMET MANAGEMENT AND DEVELOPMENT , a Nevada limited liability
company, or its transferee as described in Section 303. The principal office of Developer
for the purposes of this Agreement is located at 1322 North La Brea Avenue, Ingelwood,
California 90302. Developer warrants and represents to Agency that Developer will be
qualified to do business in good standing under the laws of the State of California and the
city of Palm Springs and has all requisite power and authority to carry out Developer's
business as now and whenever conducted and to enter into and perform Developer's
obligations under this Agreement.
34. 2. Successors and Assiqns. Except as may be expressly
provided herein below, all of the terms, covenants and conditions of this Agreement shall
be binding on, and shall inure to the benefit of, Developer and the permitted successors,
assigns and nominees of Developer as to each Parcel. Wherever the term "Developer" is
party from any obligations under this Agreement with respect to the completion of the
development of the Project with respect to that portion of the Site which is so transferred. In
addition, no attempted assignment of any of Developer's obligations hereunder shall be
effective unless and until the successor party executes and delivers to Agency an
assumption agreement in a form approved by the Agency assuming such obligations.
39. 3. Exceptions. The foregoing prohibition shall not apply to any of
the following:
Any mortgage, deed of trust, or other form of conveyance for financing, as
provided in Section 512, but Developer shall notify Agency in advance of any such
mortgage, deed of trust, or other form of conveyance for financing pertaining to the Site.
Any mortgage, deed of trust, or other form of conveyance for restructuring or
refinancing of any amount of indebtedness described in the preceding paragraph, provided
that the amount of indebtedness incurred in the restructuring or refinancing does not exceed
the outstanding balance on the debt incurred to finance the acquisition of and improvements
on the Site, including any additional costs for completion of construction, whether direct or
indirect, based upon the estimates of architects and/or contractors.
The granting of easements to any appropriate governmental agency or utility
or permits to facilitate the development of the Site.
A sale or transfer resulting from or in connection with a reorganization as
contemplated by the provisions of the Internal Revenue Code of 1986, as amended or
otherwise, in which the ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, firm or corporation which acquires the control of the
voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
A sale or transfer of 49% or more of ownership or control interest between
members of the same immediate family, or transfers to a trust, testamentary or otherwise, in
which the beneficiaries consist solely of immediate family members of the Trustor or
transfers to a corporation or partnership in which the immediate family members or
shareholders of the transferor have a controlling majority interest of 51% or more, and or
transfers to a limited liability company or similar entity controlled or managed by Developer.
A sale of an individual completed home, provided such sale complies with the
terms of this Agreement.
40. 4. Restrictions After Completion. It is hereby acknowledged by
Developer and Agency that the Site is being conveyed to the Developer by the Agency for
the purpose of developing affordable single-family housing. Therefore, subsequent to the
issuance of the Release of Construction Covenants, Developer or its successors may not
sell, transfer, convey, hypothecate, assign or lease all or any portion of its interest in the
Site without complying with any transfer restrictions contained within the Deed, the
Regulatory Agreement, the Agency Note or Agency Deed, as applicable. I
party from any obligations under this Agreement with respect to the completion of the
development of the Project with respect to that portion of the Site which is so transferred. In
addition, no attempted assignment of any of Developer's obligations hereunder shall be
effective unless and until the successor party executes and delivers to Agency an
assumption agreement in a form approved by the Agency assuming such obligations.
39. 3. Exceptions. The foregoing prohibition shall not apply to any of
the following:
Any mortgage, deed of trust, or other form of conveyance for financing, as
provided in Section 512, but Developer shall notify Agency in advance of any such
mortgage, deed of trust, or other form of conveyance for financing pertaining to the Site.
Any mortgage, deed of trust, or other form of conveyance for restructuring or
refinancing of any amount of indebtedness described in the preceding paragraph, provided
that the amount of indebtedness incurred in the restructuring or refinancing does not exceed
the outstanding balance on the debt incurred to finance the acquisition of and improvements
on the Site, including any additional costs for completion of construction, whether direct or
indirect, based upon the estimates of architects and/or contractors.
The granting of easements to any appropriate governmental agency or utility
or permits to facilitate the development of the Site.
A sale or transfer resulting from or in connection with a reorganization as
contemplated by the provisions of the Internal Revenue Code of 1986, as amended or
otherwise, in which the ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, firm or corporation which acquires the control of the
voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
A sale or transfer of 49% or more of ownership or control interest between
members of the same immediate family, or transfers to a trust, testamentary or otherwise, in
which the beneficiaries consist solely of immediate family members of the Trustor or
transfers to a corporation or partnership in which the immediate family members or
shareholders of the transferor have a controlling majority interest of 51% or more, and or
transfers to a limited liability company or similar entity controlled or managed by Developer.
A sale of an individual completed home, provided such sale complies with the
terms of this Agreement.
40. 4. Restrictions After Completion. It is hereby acknowledged by
Developer and Agency that the Site is being conveyed to the Developer by the Agency for
the purpose of developing affordable single-family housing. Therefore, subsequent to the
issuance of the Release of Construction Covenants, Developer or its successors may not
sell, transfer, convey, hypothecate, assign or lease all or any portion of its interest in the
Site without complying with any transfer restrictions contained within the Deed, the
Regulatory Agreement, the Agency Note or Agency Deed, as applicable. I
41. IV. (§400) DISPOSITION OF THE SITE
42. A. (§40) Conveyance of the Site.
In accordance with and subject to all the terms, covenants and conditions of this
Agreement, Agency agrees to convey the Site to Developer, upon the terms and conditions
hereinafter set forth.
43. B. (§402) Agency Assistance
1. Purchase Price.
Agency agrees to convey the five (5) parcels in the Site to Developer for the
fair market value of a Purchase Price of Twenty Two Thousand Dollars ($22,000.00) for
each parcel in the form of the carry back Developer Notes which shall be paid in full upon
the transfer of the completed new home to a Qualified Purchaser. Except as expressly set
forth herein, including without limitation Section 410, Developer shall be responsible for all
construction and development costs to construct the Project on the Site. A credit may be
shown to be applied towards the Developer Note in the event of extraordinary cost due to
vandalism or theft, which may be documented to the satisfaction of the Executive Director.
Developer shall sell the completed house to a Qualified Purchaser for an amount not to
exceed Two Hundred and Twenty-Nine Thousand Dollars ($229,000).
2. Purchaser Assistance for Qualified Purchaser.
Agency may assist a Qualified Purchaser in an amount not to exceed
$50,000 in the form of a second trust deed secured note as shown in the Purchaser Note
and the Purchaser Deed of Trust, Attachments No. 10 and 11.
44. C. (§404) Escrow.
Escrow shall be opened within the time period specified in the Schedule of
Performance. This Agreement shall constitute the joint Escrow instructions of the Agency
and the Developer for the Site, and a duplicate original of this Agreement shall be delivered
to the Escrow Agent upon the opening of Escrow. Escrow Agent is empowered to act under
these instructions. Agency and Developer shall promptly prepare, execute, and deliver to
the Escrow Agent such additional escrow instructions consistent with the terms herein as
shall be reasonably necessary. No provision of any additional escrow instructions shall
modify this document without specific written approval of the modifications by both
Developer and Agency.
45. D. (§405) Conditions to Close of Escrow.
46, 1. Developer's Conditions to Closinq. Developer's obligation to
acquire the Site and to close Escrow hereunder, shall, in addition to any other conditions
set forth herein in favor of Developer, be conditional and contingent upon the satisfaction,
U w9
or waiver by Developer, of each and all of the following conditions (collectively the
"Developer's Conditions to Closing") within the time provided in the Schedule of
Performance:
47. a. Title shall be conveyed in a good condition subject only
to conditions and exceptions recited in the Deed and those exceptions to title approved
pursuant to Section 407.
48. b. Agency shall have deposited into escrow a certificate
("FIRPTA Certificate") in such form as may be required by the Internal Revenue service
pursuant to Section 1445 of the Internal Revenue Code.
49. c. Developer shall have obtained evidence of financing
commitments for the acquisition and development of the Site in accordance with Section
408, and Agency shall have approved such commitments.
50. d. Agency shall have deposited into escrow the executed
Grant Deed.
51. e. Developer shall have obtained from the City all
required approvals and permits, including site plan review, conditional use, subdivision,
building, grading, landscaping, and others for development of the Site.
Any waiver of the foregoing conditions must be express and in writing. In the
event that the foregoing conditions have not been satisfied within the time provided
therefore in the Schedule of Performance, either party may terminate this Agreement by
delivering a written notice in accordance with Section 411.
52. 2. Agency's Conditions to Closinq. Agency's obligation to sell
the Site and to close escrow hereunder, shall, in addition to any other conditions set forth
herein in favor of Agency, be conditional and contingent upon the satisfaction, or waiver by
Agency, of each and all of the following conditions (collectively the "Agency's Conditions to
Closing") within the time provided in the Schedule of Performance:
53. a. Developer shall have timely submitted to Agency plans
and drawings for all improvements to be constructed on the Site, including for site plan
review, conditional use, subdivision, building, grading, landscaping and other plans and
drawings, as provided in Section 502.
54. b. Developer shall not have made or attempted to make a
transfer in violation of Section 303, provided that Agency shall give notice of any violation of
Section 303 and afford Developer the opportunity to cure the violation.
55. c. Developer shall have deposited into escrow all
documents required under Section 406.4.
Any waiver of the foregoing conditions must be express and in writing. . In the
event that the foregoing conditions have not been satisfied within the time provided
therefore in the Schedule of Performance, either party may terminate this Agreement by
delivering a written notice in accordance with Section 411.
56. 3. Both Parties' Conditions to Closinq. Prior to the Closing Date,
Developer and Agency shall execute and deliver a certificate ("Taxpayer ID Certificate") in
such form as may be required by the IRS pursuant to Section 6045 of the Internal Revenue
Code, or the regulations issued pursuant thereto, certifying as to the description of the Site,
date of closing, gross price, and taxpayer identification number for Developer and Agency.
Prior to the Closing, Developer and Agency shall cause to be delivered to the Escrow
Agent such other items, instruments and documents, and the parties shall take such further
actions, as may be necessary or desirable in order to complete the Closing. At the Closing
neither party shall be in breach of its obligations hereunder.
57. E. (§406) Conveyance of the Site.
58. 1. Time for Conveyance. Escrow shall close after satisfaction of
all conditions to close of escrow, but not later than the date specified in the Schedule of
Performance, unless extended by the mutual agreement of the parties or any Enforced
Delay. Possession of the Site or portion thereof shall be delivered to Developer
concurrently with the conveyance of title free of all tenancies and occupants other than any
title matters approved in accordance with Section 407.
59. 2. Escrow Aqent to Advise of Costs. On or before the date set in
the Schedule of Performance, the Escrow Agent shall advise the Agency and the
Developer in writing of the fees, charges, and costs necessary to clear title and close
escrow, and of any documents which have not been provided by said party and which must
be deposited in Escrow to permit timely Closing.
60. 3. Deposits BV AgencV Prior to Closinq. On or before, but not
later than 1:00 p.m. of the date set in the Schedule of Performance, Agency shall execute,
acknowledge and deposit into escrow (i) the Deed to the Site or applicable portion thereof;
(ii) an estoppels certificate certifying that Developer has completed all acts, other than as
specified, necessary for conveyance, if such be the fact; and (iii) payment to Escrow Agent
of Agency's share of costs as determined by the Escrow Agent pursuant to Section 410.
61. 4. Deposits BV Developer Prior to Closinq. On or before, but not
later than 1:00 p.m. of the date set in the Schedule of Performance, Developer shall
execute and acknowledge as may be required and deposit into escrow: (i) the Developer
Note and Developer Deed of Trust for each parcel of the Site; (ii) an estoppel certificate
certifying that Agency has completed all acts, other than as specified, necessary to
conveyance, if such be the fact; and (iii) payment to Escrow Agent of Developer's share of
costs as determined by the Escrow Agent pursuant to Section 410.
62. 5. Recordation and Disbursement of Funds. Upon the
completion by the Agency and Developer of the deliveries and actions specified in thyse
escrow instructions precedent to Closing, the Escrow Agent shall be authorized to buy, affix
and cancel any documentary stamps and pay any transfer tax and recording fees, if
r,,2,,
required by law, and thereafter cause to be recorded in the appropriate records of
Riverside County, California, the Deed and any other appropriate instruments delivered
through this escrow, if necessary or proper to, and provided that the fee title interest can,
vest in Developer in accordance with the terms and provisions herein. Concurrent with
recordation, Escrow Agent shall deliver the Title Policy to Developer insuring title and
conforming to the requirements of Section 406. Following recordation, the Escrow Agent
shall deliver copies of said instruments to Developer and Agency. In addition, after
deducting any sums specified in this Agreement, the Escrow Agent shall disburse funds to
the party entitled thereto.
63. 6. Conveyance of Separate Parcels. The individual Parcels of
the Site may be conveyed to Developer separately, in which case the escrow provisions
contained herein shall apply to the individual Parcel(s) being conveyed.
64. F. (§407) Title Matters.
65. 1. Condition of Title. Agency shall convey to Developer fee
interest in the Site, subject only to: (i) the Redevelopment Plan, this Agreement, and
conditions in the Developer Deed of Trust, and the Grant Deed; (ii) current taxes, a lien not
yet payable; (iii) quasi-public utility, public alley and public street easements of record
approved by Developer, which approval shall not be unreasonably withheld; and (iv)
covenants, conditions and restrictions, reciprocal easements, and other encumbrances and
title exceptions approved by Developer under this Section.
66. 2. Exclusion of Oil, Gas, and Hvdrocarbons. Title shall be
conveyed subject to the exclusion therefrom to the extent now or hereafter validly excepted
and reserved by the parties named in deeds, leases and other documents of record of all
oil, gas, hydrocarbon substances and minerals of every kind and character lying more than
five hundred feet (500) below the surface, together with the right to drill into, through, and
to use and occupy all parts of the Site lying more than five hundred feet (500') below the
surface thereof for any and all purposes incidental to the exploration for and production of
oil, gas, hydrocarbon substances or minerals from the Site but, without, however, any right
to use either the surface of the Site or any portion thereof within five hundred feet (500') of
the surface for any purpose or purposes whatsoever.
67. 3. Apencv Not to Encumber Site. Agency hereby warrants to
Developer that it has not and will not, from the time of Developer's review of the Preliminary
Title Report to close of escrow, transfer, sell, hypothecate, pledge, or otherwise encumber
the Site without express written permission of Developer.
68. 4. Approval of Title Exceptions. Prior to the date in the Schedule
of Performance, Agency shall deliver a preliminary title report, dated no earlier than the
date of this Agreement, to Developer including copies of all documents referenced therein.
Prior to the date in the Schedule of Performance, Developer shall deliver to Agency written
notice, with a copy to Escrow Agent, specifying in detail any exception disapproved and the
reason therefore. Prior to the date in the Schedule of Performance, Agency shall deliver .
written notice to Developer as to whether Agency will or will not cure the. disapproved
exceptions; provided, however, that Agency shall elect to cure all disapproved exceptions
which are monetary or possessor interests.
69. 5. Title Policy. At the close of escrow, Escrow Agent shall
furnish Developer with a CLTA Policy of Title Insurance (the "Title Policy") for the
Developer's interest, wherein the Title Company shall insure that title to the Parcel shall be
vested in Developer, containing no exception to such title which has not been approved or
waived by Developer in accordance with this Section. The Title Policy shall include any
available additional title insurance, extended coverage or endorsements that Developer
has reasonably requested. The Agency shall pay only for that portion of the title insurance
premium attributable to the standard coverage, and Developer shall pay for the premium
for said additional title insurance, extended coverage or special endorsements.
70. G. (§408) Evidence of Financial Capability.
Within the time set forth in the Schedule of Performance, Developer shall submit to
Agency's Executive Director for approval evidence reasonably satisfactory to the Executive
Director that Developer has the financial capability necessary for the acquisition of the Site
and development of the Project thereon pursuant to this Agreement. Such evidence of
financial capability shall include all of the following:
Reliable cost estimates for Developer's total cost of acquiring the Site and
developing the Project (including both "hard" and "soft" costs).
! A complete copy of the construction loan commitment obtained by Developer to
finance the development of the Project, or such other documentation reasonably
satisfactory to the Executive Director sufficient to demonstrate that Developer has adequate
funds available and committed to finance the development of the Project. The construction
loan commitment shall be obtained from a financial institution licensed to do business in
California and reasonably acceptable to Agency.
A financial statement and/or other documentation reasonably satisfactory to the
Executive Director sufficient to demonstrate that Developer has adequate funds available
and committed to cover the difference between the total acquisition costs of the Site and
development costs of the Project (subparagraph (1) above) and the proceeds of the
construction loan commitment (subparagraph (2) above).
A copy of the proposed contract between Developer and its general contractor for all
of the improvements required to be constructed by Developer hereunder, certified by
Developer to be a true and correct copy thereof. The Executive Director shall also have the
right to review and approve any revisions that are made to the proposed contract after its
approval by the Executive Director.
Developer covenants and agrees to take all commercially reasonable actions,
furnish all reasonable information, give all reasonably required consents and pay all sums
reasonably required to keep the construction loan commitment in full force and effect and
shall comply with all conditions thereof, and shall promptly execute, acknowledge and
deliver all applications, credit applications and data, financial statements, and documents in
connection therewith.
71. H. (§409) Condition of Site. r
72. 1. Right to Approve Soils as a Condition to Closinq. Within the
time provided in the Schedule of Performance the Developer shall determine if the soils
and other physical conditions of the Site are suitable for the development to be constructed
thereon. Developer shall have the right to enter onto the Site for the purposes of
conducting soils, engineering, or other tests and studies regarding the physical condition of
the Site. Any disapproval by Developer may be based upon the Site assessments prepared
by Agency and made available to Developer. If Developer notifies Agency in writing by the
date set forth in the Schedule of Performance of its disapproval of the physical condition of
the Site, which notice shall specify the reasons for such disapproval then this Agreement
shall be terminated unless the parties agree to an allocation of the cost to cure.
73. 2. Disclaimer of Warranties. Upon the Close of Escrow,
Developer shall acquire the Site in its "AS-IS" condition and shall be responsible for any
defects in the Site, whether patent or latent, including, without limitation, the physical,
environmental and geotechnical condition of the Site, and the existence of any
contamination, Hazardous Materials, underground storage tanks, vaults, debris, pipelines
or other structures located on, under or about the Site. Agency makes no representation or
warranty concerning the physical, environmental, geotechnical or other condition of the
Site, the suitability of the Site for the Project, or the present use of the Site, and specifically
disclaims all representations or warranties of any nature concerning the Site made by it, the
City and their employees, agents and representatives. The foregoing disclaimer includes,
without limitation, topography, climate, air, water rights, utilities, present and future zoning,
soil, subsoil, existence of Hazardous Materials or similar substances, the purpose for which
the Site is suited, or drainage. The Agency makes no representation or warranty
concerning the compaction of soil upon the Site, nor of the suitability of the soil for
construction.
74. 3. Riqht to Enter Site, Indemnification. Developer shall have the
right to enter upon the Site to conduct soils, engineering, or other tests and studies, to
perform preliminary work or remediation work or for any other purposes to carry out the
terms of this Agreement. Developer shall indemnify, defend and hold Agency harmless
from and against any claims, injuries or damages arising out of or involving any such entry
or activity as provided in Section 505. Any such activity shall be undertaken only after
securing any necessary permits from the appropriate governmental agencies and providing
Agency with certificates of insurance evidencing the coverages required in Section 506.
75. 4. Hazardous Materials. Developer understands and agrees that
in the event Developer incurs any loss or liability concerning Hazardous Materials (as
hereinafter defined) and/or underground storage tanks whether attributable to events
occurring prior to or after the Closing, then Developer may look to prior owners of the Site,
excluding the Agency or City.
"Environmental Law" means any federal, state or local statute, ordinance, rule,
regulation, order, consent decree, judgment or common-law doctrine, and provisions and
conditions of permits, licenses and other operating authorizations relating to (A) pollution or
protection of the environment, including natural resources, (B) exposure of persons,
including employees, to Hazardous Materials or other pro-ducts, raw materials; chemicals
or other substances, (C) protection of the public health or welfare from the effects of by-
products, wastes, emissions, discharges or releases of chemical sub-stances from industrial
ED�5
or commercial activities, or (D) regulation of the manufacture, use or introduction into
commerce of chemical substances, including, without limitation, their manufacture,
formulation, labeling, distribution, transportation, handling, storage and disposal.
"Hazardous Material" is defined to include any hazardous or toxic substance,
material or waste which is or becomes regulated by any local governmental authority, the
State of California, or the United States Government. The term "Hazardous Material"
includes, without limitation, any material or substance which is: (A) petroleum or oil or gas
or any direct or derivate product or byproduct thereof; (B) 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,
Division 20, Chapter 6.5 (Hazardous Waste Control Law); (C) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code, Division 20,
Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (D) defined as
a "hazardous material," "hazardous substance," or "hazardous waste" under Sections
255010) and (k) and 25501.1 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory); (E) defined as a
"hazardous substance" under Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (F) "used oil" as
defined under Section 25250.1 of the California Health and Safety Code; (G) asbestos; (H)
listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations, or
defined as hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title
22 of the California Code of Regulations; (1) defined as waste or a hazardous substance
pursuant to the Porter-Cologne Act, Section 13050 of the California Water Code; (J)
designated as a "toxic pollutant" pursuant to the Federal Water Pollution Control Act, 33
U.S.C. § 1317; (K) defined as a "hazardous waste' pursuant to the Federal Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903); (L) defined
as a "hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (M) defined
as "Hazardous Material" pursuant to the Hazardous Materials Transportation Act, 49 U.S.C.
§ 5101 et seq.; or (N) defined as such or regulated by any "Superfund" or "Superlien" law, or
any other federal, state or local law, statute, ordinance, code, rule, regulation, order or
decree regulating, relating to, or imposing liability or standards of conduct concerning
Hazardous Materials and/or underground storage tanks, as now, or at any time here-after,
in effect.
76. I. (§410) Costs of Escrow.
77. 1, Allocation of Costs. The Escrow Agent is authorized to
allocate costs as follows: Agency shall pay the cost of the Title Policy as provided above
while Developer shall pay premiums for any additional insurance, extended coverage or
special endorsements. Agency shall pay the documentary transfer tax as well as all
recording fees. Developer and Agency shall each pay one-half of all escrow and similar
fees, except that if one party defaults under this Agreement, the defaulting party shall pay
all escrow fees and charges. Each party shall pay its own attorneys' fees.
78. 2. Proration and Adjustments. Ad valorem taxes and
assessments on the Site and insurance for the current year shall be prorated b� the
Escrow Agent as of the date of Closing with the Agency responsible for those levied,
assessed or imposed prior to Closing and the Developer responsible for those after
Closing. If the actual taxes are not known at the date of Closing, the proration shall be
based upon the most current tax figures. When the actual taxes for the year of Closing
become known, Developer and Agency shall, within thirty days thereafter, reprorate the
taxes in cash between the parties.
79. J. (§411) Termination of Escrow.
80. 1. Termination. Escrow may be terminated by demand of either
party who then shall have fully performed its obligations hereunder if:
The Conditions to Closing have not occurred or have not been
approved, disapproved, or waived as the case may be, by the approving party by the date
established herein for the occurrence of such Condition, including any grace period
pursuant to this Section; or
Escrow is not in a condition to close by the date set for Closing; or
Either party is in uncured material breach of the terms and conditions
of this Agreement, following notice and opportunity to cure.
In the event of the foregoing, the terminating party may, in writing, demand return of
its money, papers, or documents from the Escrow Agent and shall deliver a copy of such
demand to the non-terminating party. No demand shall be recognized by the Escrow Agent
until thirty (30) days after the Escrow Agent shall have mailed copies of such demand to the
non-terminating party, and if no objections are raised in writing to the terminating party and
the Escrow Agent by the non-terminating party within the thirty (30) day period. In the event
of such objections, the opportunity to cure shall be provided as stated below in subsection 2
of this Section. In addition, the Escrow Agent is authorized to hold all money, papers, and
documents until instructed in writing by both Developer and Agency or, upon failure thereof,
by a court of competent jurisdiction. If no such demands are made, the Escrow shall be
closed as soon as possible and neither party shall have any further liability to the other.
81. 2. OpportunitV to Cure. Prior to Closing, in the event any of the
Conditions to Closing are not satisfied or waived by the party with the power to approve
said Conditions (the "approving party"), then such party shall explain in writing to the other
party (the "non-approving party") the reason for the disapproval. Thereafter, the non-
approving party shall have an additional thirty (30) days to satisfy any such Condition to
Closing, and only if such Conditions still cannot be satisfied may the approving party
terminate the Escrow. In the event Escrow is not in a condition to close because of a
default by any party, and the performing party has made demand as stated in Subsection 1
of this Section, then upon the non-performing party's delivering its objection to Escrow
Agent and the performing party within the above thirty (30) day period, the non-performing
party shall have the right to cure the default in accordance with and in the time provided in
Section 801.
82. K. (§412) Responsibility of Escrow Agent.
d�4'a c
83. 1. Deposit of Funds. In accordance with Section 404, all funds
received in Escrow shall be deposited by the Escrow Agent in a special escrow account
with any state or national bank doing business in the State of California and may not be
combined with other escrow funds of Escrow Agent or transferred to any other general
escrow account or accounts.
84. 2. Notices. All communications from the Escrow Agent shall be
directed to the addresses and in the manner provided in Section 801 of this Agreement for
notices, demands and communications between Agency and Developer.
85. 3. Sufficiency of Documents. The Escrow Agent is not to be
concerned with the sufficiency, validity, correctness of form, or content of any document
prepared outside of escrow and delivered to Escrow. The sole duty of the Escrow Agent is
to accept such documents and follow Developer's and Agency's instructions for their use.
86. 4. Exculpation of Escrow Aqent. The Escrow Agent shall in no
case or event be liable for the failure of any of the Conditions to Closing of this escrow, or
for forgeries or false personation, unless such liability or damage is the result of negligence
or willful misconduct by the Escrow Agent.
87. 5. Responsibilities in the Event of Controversies. If any
controversy documented in writing arises between Developer and Agency or with any third
party with respect to the subject matter of this Escrow or its terms or conditions, the Escrow
Agent shall not be required to determine the same, to return any money, papers or
documents, or take any action regarding the Site prior to settlement of the controversy by a
final decision of a court of competent jurisdiction or written agreement of the parties to the
controversy. The Escrow Agent shall be responsible for timely notifying Developer and
Agency of the controversy. In the event of such a controversy, the Escrow Agent shall not
be liable for interest or damage costs resulting from failure to timely close escrow or take
any other action unless such controversy has been caused by the failure of the Escrow
Agent to perform its responsibilities hereunder.
88.V. (§500) DEVELOPMENT OF THE SITE
89. A. (§501) Scope of Development.
Each of the Parcels in the Site shall be developed with a single family
residence by Developer as provided in the Scope of Development. Developer shall obtain
all plan approvals and permits according to the City's customary requirements.
90. B. (§502) FReservedl.
91, C. (§503) Developer Responsibilities During Construction.
The cost of constructing all of the improvements required to be constructed for the
Project shall be borne by Developer, except for any work expressly set forth( in, this
Agreement to be performed or funded by the Agency or others. In addition, in developing
the Site, Developer shall conduct watering of the ground as reasonably required by Agency,
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3
and take such other actions as Agency shall reasonably require to minimize the impact of
construction and airborne debris on nearby property.
92. D. (§504) Schedule of Performance; Proqress Reports.
Developer shall begin and complete all plans, reviews, construction and
development specified in the Scope of Development within the times specified in the
Schedule of Performance or such reasonable extensions of said dates as may be mutually
approved in writing by the parties. Once construction is commenced, it shall be diligently
pursued to completion, and shall not be abandoned for more than thirty (30) consecutive
days, except when due to an Enforced Delay. Developer shall keep the Agency informed of
the progress of construction and shall submit monthly to the Agency written reports of the
progress of the construction in the form required by the Agency.
93. E. (§505) Indemnification Durinq Construction.
During the periods of construction on the Site and until such time as the Agency has
issued a Release of Construction Covenants with respect to the construction of the
improvements thereon, the Developer agrees to and shall indemnify and hold the Agency
and the City harmless from and against all liability, loss, damage, costs, or expenses
(including reasonable attorneys' fees and court costs) arising from or as a result of the
death of any person or any accident, injury, loss, or damage whatsoever caused to any
person or to the property of any person which shall occur on the Site and which shall be
directly or indirectly caused by any acts done thereon or any errors or omissions of the
Developer or its agents, servants, employees, or contractors. The Developer shall not be
responsible for (and such indemnity shall not apply to) any acts, errors, or omissions of the
Agency or the City, or their respective agents, servants, employees, or contractors. The
Agency and City shall not be responsible for any acts, errors, or omissions of any person or
entity except the Agency and the City and their respective agents, servants, employees, or
contractors, subject to any and all statutory and other immunities. The provisions of this
Section shall survive the termination of this Agreement.
94. F. (§506) Insurance.
Prior to the entry by Developer on the Site pursuant to Section 409 and prior to the
commencement of any construction by Developer on the Project, Developer shall procure
and maintain, at its sole cost and expense, in a form and content satisfactory to Agency,
during the entire term of such entry or construction, the following policies of insurance:
95. 1. Commercial General Liability Insurance. A policy of
commercial general liability insurance written on a per occurrence basis in an amount not
less than either (i) a combined single limit of ONE MILLION DOLLARS ($1,000,000.00) or
(ii) bodily injury limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per
person, ONE MILLION DOLLARS ($1,000,000.00) per occurrence, ONE MILLION
DOLLARS ($1,000,000.00) products and completed operations and property damage limits
of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per occurrence and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate.
96. 2. Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for both the
Developer, Agency, and the City against any loss, claim or damage arising from any
injuries or occupational diseases occurring to any worker employed by or any persons
retained by the Developer in the course of carrying out the work or services contemplated
in this Agreement.
97. 3. Builder's Risk Insurance. A policy of "builder's risk" insurance
covering the full replacement value of all of the improvements to be constructed by
Developer pursuant to this Agreement.
All of the above policies of insurance, except the Builder's Risk Insurance, shall be
primary insurance and shall name Agency, City, and their officers, employees, and agents
as additional insured's. The insurer shall waive all rights of subrogation and contribution it
may have against Agency, City, and their officers, employees and agents and their
respective insurers. All of said policies of insurance shall provide that said insurance may
not be amended or cancelled without providing thirty (30) days prior written notice to
Agency and City. In the event any of said policies of insurance are cancelled, the
Developer shall, prior to the cancellation date, submit new evidence of insurance in
conformance with this Section to the Executive Director. No work or services under this
Agreement shall commence until the Developer has provided Agency with Certificates of
Insurance or appropriate insurance binders evidencing the above insurance coverages and
said Certificates of Insurance or binders are approved by Agency.
The policies of insurance required by this Agreement shall be satisfactory only if
issued by companies qualified to do business in California, rated "A" or better in the most
recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and
only if they are of a financial category Class VII or better, unless such requirements are
waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances.
Developer shall provide in all contracts with contractors, subcontractors, architects,
and engineers that said contractor, subcontractor, architect, or engineer shall maintain the
same policies of insurance required to be maintained by Developer pursuant to this Section,
unless waived by the Risk Manager.
The Developer agrees that the provisions of this Section shall not be construed as
limiting in any way the extent to which the Developer may be held responsible for the
payment of damages to any persons or property resulting from the Developer's activities or
the activities of any person or persons for which the Developer is otherwise responsible.
98. G. (§507) City and Other Governmental Agency Permits.
Before commencement of construction or development of any buildings, structures,
or other works of improvement upon the Site which are Developer's responsibility under the
applicable Scope of Development, Developer shall at his own expense secure or ca se to
be secured any and all permits which may be required by City or any other governrr�ental .
agency affected by such construction, development or work. The Developer shall not be
obligated to commence construction if any such permit is not issued despite good faith effort
0")3()
by Developer. If there is delay beyond the usual time for obtaining any such permits due to
no fault of Developer, the Schedule of Performance shall be extended to the extent such
delay prevents any action which could not legally or would not in accordance with good
business practices be expected to occur before such permit was obtained. Developer shall
pay all normal and customary fees and charges applicable to such permits and any fees or
charges hereafter imposed by City or Agency which are standard for and uniformly applied
to similar projects in the City.
99. H. (§508) Rights of Access.
Upon 48 hours prior written notice, representatives of the Agency shall have the
reasonable right of access to the Site without charges or fees, at any time during normal
construction hours during the period of construction, for the purpose of assuring compliance
with this Agreement, including but not limited to the inspection of the construction work
being performed by or on behalf of Developer. Such representatives of Agency shall be
those who are so identified in writing by the Executive Director of Agency. Each such
representative of Agency shall identify himself or herself at the job site office upon his or her
entrance to the Site, and shall provide Developer, or the construction superintendent or
similar person in charge on the Site, a reasonable opportunity to have a representative
accompany him or her during the inspection. Agency shall indemnify, defend, and hold
Developer harmless from any injury or property damage caused or liability arising out of
Agency's exercise of this right of access.
100. I. (§509) Applicable Laws.
Developer shall carry out the construction of the improvements to be constructed by
Developer in conformity with all applicable laws, including all applicable federal and state
labor laws.
101. J. (§510) Nondiscrimination During Construction.
Developer, for himself and his successors and assigns, agrees that in the
construction of the improvements to be constructed by Developer, it shall not discriminate
against any employee or applicant for employment because of race, color, creed, religion,
sex, marital status, ancestry or national origin.
102. K. (§511) Taxes, Assessments, Encumbrances and Liens.
Developer shall pay, when due, all real estate taxes and assessments assessed or
levied subsequent to conveyance of title. Until the date Developer is entitled to the
issuance by Agency of a Release of Construction Covenants, Developer shall not place or
allow to be placed thereon any mortgage, trust deed, encumbrance or lien (except
mechanic's liens prior to suit to foreclose the same being filed) prohibited by this
Agreement. Developer shall remove or have removed any levy or attachment made on the
Site, or assure the satisfaction thereof, within a reasonable time, but in any event prior to a
sale thereunder. Nothing herein contained shall be deemed to prohibit Developer from
contesting the validity or amounts of any tax, assessment, encumbrance or lien, nor to-limit
the remedies available to Developer in respect thereto.
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103. L. (§512) Rights of Holders of Approved Security Interests in Site.
104. 1. Definitions. As used in this Section, the term "mortgage" shall
include any mortgage, whether a leasehold mortgage or otherwise, deed of trust, or other
security interest, or sale and lease-back, or any other form of conveyance for financing.
The term "holder" shall include the holder of any such mortgage, deed of trust, or other
security interest, or the lessor under a lease-back, or the grantee under any other
conveyance for financing.
105. 2. No Encumbrances Except Mortqaqes to Finance The Project.
Notwithstanding the restrictions on transfer in Section 303, mortgages required for any
reasonable method of financing of the construction of the improvements are permitted
before issuance of a Release of Construction Covenants but only for the purpose of
securing loans of funds used or to be used for financing the acquisition of the Site, for the
construction of improvements thereon, and for any other expenditures necessary and
appropriate to develop the site under this Agreement, or for restructuring or refinancing any
for same, so long as the refinancing does not exceed the then outstanding balance of the
existing financing, including any additional costs for completion of construction, whether
direct or indirect, based upon the estimates of architects and/or contractors. The
Developer (or any entity permitted to acquire title under this Section) shall notify the
Agency in advance of any mortgage, if the Developer or such entity proposes to enter into
the same before issuance of the Release of Construction Covenants. The Developer or
such entity shall not enter into any such conveyance for financing without the prior written
approval of the Agency as provided in Section 408. Any lender approved by the Agency
pursuant to Section 408 shall not be bound by any amendment, implementation, or
modification to this Agreement subsequent to its approval without such lender giving its
prior written consent thereto. In any event, the Developer shall promptly notify the Agency
of any mortgage, encumbrance, or lien that has been created or attached thereto prior to
issuance of a Release of Construction Covenants, whether by voluntary act of the
Developer or otherwise. If Agency is the holder of any mortgage for financing purposes
pursuant to Section 408, Agency may, at its sole discretion, waive any of the time limits or
other rights of a holder described in this Section 512.
106, 3, Developer's Breach Not to Defeat Mortqaqe Lien. Developer's
breach of any of the covenants or restrictions contained in this Agreement shall not defeat
or render invalid the lien of any mortgage made in good faith and for value as to the Site, or
any part thereof or interest therein, but unless otherwise provided herein, the terms,
conditions, covenants, restrictions, easements, and reservations of this Agreement shall be
binding and effective against the holder of any such mortgage of the Site whose interest is
acquired by foreclosure, trustee's sale or otherwise.
107, 4. Holder Not Obliqated to Construct or Complete Improvements.
The holder of any mortgage shall in no way be obligated by the provisions of this
Agreement to construct or complete the improvements or to guarantee such construction or
completion. Nothing in this Agreement shall be deemed or construed to permit or authorize
any such holder to devote the Site or any portion thereof to any uses, or to construct any
improvements thereon, other than those uses or improvements provided for or authorized
by this Agreement.
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108. 5. Notice of Default to Mortqaqes, Deed of Trust or other Security
Interest Holders. Whenever Agency shall deliver any notice or demand to Developer with
respect to any breach or default by Developer hereunder, Agency shall at the same time
deliver a copy of such notice or demand to each holder of record of any mortgage who has
previously made a written request to Agency therefore, or to the representative of such
lender as may be identified in such a written request by the lender. No notice of default
shall be effective as to the holder unless such notice is given.
109. 6. Right to Cure. Each holder (insofar as the rights of Agency
are concerned) shall have the right, at its option, within ninety (90) days after the receipt of
the notice, to:
110. a. obtain possession, if necessary, and to commence and
diligently pursue said cure until the same is completed, and
111. b. add the cost of said cure to the security interest debt
and the lien or obligation on its security interest;
112. c. provided that in the case of a default which cannot with
diligence be remedied or cured within such ninety (90) day period, such holder shall have
additional time as reasonably necessary to remedy or cure such default.
In the event there is more than one such holder, the right to cure or remedy a breach
or default of Developer under this Section shall be exercised by the holder first in priority or
as the holders may otherwise agree among themselves, but there shall be only one
exercise of such right to cure and remedy a breach or default of Developer under this
Section.
No holder shall undertake or continue the construction or completion of the
improvements (beyond the extent necessary to preserve or protect the improvements or
construction already made) without first having expressly assumed Developer's obligations
to Agency by written agreement satisfactory to Agency with respect to the Site or any
portion thereof in which the holder has an interest. The holder must agree to complete, in
the manner required by this Agreement, the improvements to which the lien or title of such
holder relates, and submit evidence satisfactory to the Agency that it has the qualifications
and financial responsibility necessary to perform such obligations. Any holder properly
completing such improvements shall be entitled, upon written request made to Agency, to a
Release of Construction Covenants from Agency.
113. 7. Aqency's Riqhts upon Failure of Holder to Complete
Improvements. In any case where one hundred eighty (180) days after default by
Developer in completion of construction of improvements under this Agreement, the holder
of any mortgage creating a lien or encumbrance upon the Site or improvements thereon
has not exercised the option to construct afforded in this Section or if it has exercised such
option and has not proceeded diligently with construction, Agency may, after ninety (90)
days' notice to such holder and if such holder has not exercised such option to construct
within said ninety (90) day period, purchase the mortgage, upon payment to the holder of
an amount equal to the sum of the following:
The unpaid mortgage debt plus any accrued and unpaid interest (less all appropriate
credits, including those resulting from collection and application of rentals and other income
received during foreclosure proceedings, if any);
All expenses incurred by the holder with respect to foreclosure, if any;
The net expenses (exclusive of general overhead), incurred by the holder as a direct
result of the ownership or management of the Site, such as insurance premiums or real
estate taxes, if any;
The costs of any improvements made by such holder, if any; and
An amount equivalent to the interest that would have accrued on the aggregate of
such amounts had all such amounts become part of the mortgage debt and such debt had
continued in existence to the date of payment by the Agency.
In the event that the holder does not exercise its option to construct afforded in this
Section, and Agency elects not to purchase the mortgage of holder, upon written request by
the holder to Agency, Agency agrees to use reasonable efforts to assist the holder selling
the holder's interest to a qualified and responsible party or parties (as determined by
Agency), who shall assume the obligations of making or completing the improvements
required to be constructed by Developer, or such other improvements in their stead as shall
be satisfactory to Agency. The proceeds of such a sale shall be applied first to the holder of
those items specified hereinabove, and any balance remaining thereafter shall be applied
as follows:
First, to reimburse Agency, on its own behalf and on behalf of the City, for all costs
and expenses actually and reasonably incurred by Agency, including but not limited to
payroll expenses, management expenses, legal expenses, and others.
Second, to reimburse Agency, on its own behalf and on behalf of the City, for all
payments made by Agency to discharge any other encumbrances or liens on the Site or to
discharge or prevent from attaching or being made any subsequent encumbrances or liens
due to obligations, defaults, or acts of Developer, its successors or transferees.
Third, to reimburse Agency, on its own behalf and on behalf of the City, for all costs
and expenses actually and reasonably incurred by Agency, in connection with its efforts
assisting the holder in selling the holder's interest in accordance with this Section.
Fourth, any balance remaining thereafter shall be paid to Developer.
114, 8. Right of Agency to Cure Mortqaqe, Deed of Trust or Other
Security Interest Default. In the event of a default or breach by Developer (or entity
permitted to acquire title under this Section) of a mortgage prior to the issuance by Agency
of a Release of Construction Covenants for the Site or portions thereof covered by said
mortgage, and the holder of any such mortgage has not exercised its option to complete
the development, Agency may cure the default prior to completion of any foreclosure. In
such event, Agency shall be entitled to reimbursement from Developer or other entitylof all
costs and expenses incurred by Agency in curing the default, to the extent permitted by
09(304
law, as if such holder initiated such claim for reimbursement, including legal costs and
attorneys' fees, which right of reimbursement shall be secured by a lien upon the Site to the
extent of such costs and disbursements. Any such lien shall be subject to:
Any mortgage for financing permitted by this Agreement; and
Any rights or interests provided in this Agreement for the protection of the holders of
such mortgages for financing;
provided that nothing herein shall be deemed to impose upon Agency any affirmative
obligations (by the payment of money, construction or otherwise) with respect to the Site in
the event of its enforcement of its lien.
115. 9. Riqht of Aqencv to Satisfy Other Liens on the Site After
Convevance of Title. After the conveyance of title and prior to the recordation of a Release
of Construction Covenants for construction and development, and after the Developer has
had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the Site
or any portion thereof, the Agency shall have the right to satisfy any such liens or
encumbrances; provided, however, that nothing in this Agreement shall require the
Developer to pay or make provision for the payment of any tax, assessment, lien or charge
so long as the Developer in good faith shall contest the validity or amount thereof, and so
long as such delay in payment shall not subject the Site or any portion thereof to forfeiture
or sale.
116. 10. Minor Amendments. Agency's Executive Director shall be
authorized to approve and execute minor non-substantive amendments to this Agreement
as may be requested by Developer's lender in relation to the protection of such lender's
security interest in the Site, without formal approval of the Agency Board of Directors.
117. M. (§513) Release of Construction Covenants.
Upon the completion of all construction required to be completed by Developer on
the Site or any Parcel thereof, Agency shall furnish Developer with a Release of
Construction Covenants for the Site or Parcel in the form attached hereto as Attachment
No. 5 upon written request therefore by Developer. The Release of Construction
Covenants shall be executed and notarized so as to permit it to be recorded in the office of
the Recorder of Riverside County. The parties contemplate developing the Parcels
separately and obtaining separate Releases for each Parcel. A Release of Construction
Covenants shall be, and shall state that it constitutes, conclusive determination of
satisfactory completion of the construction and development of the improvements required
by this Agreement upon the Site or Parcel and of full compliance with the terms of this
Agreement with respect thereto. A partial Release of Construction Covenants applicable to
less than an entire Parcel shall not be permitted.
After the issuance of a Release of Construction Covenants, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest in any Parcel shall not
(because of such ownership, purchase, lease, or acquisition) incur any obligation or liability
under this Agreement with respect to said Parcel, except that such party shall be bound by
the covenants, encumbrances, and easements contained in the Deed and the Regulatory
Agreement attached hereto. After issuance of a Release of Construction Covenants, the
Agency shall not have any rights or remedies under this Agreement with respect to said
Parcel, except as otherwise set forth or incorporated in the Deed, the Regulatory
Agreement, the Developer Note, or the Developer Deed of Trust.
Agency shall not unreasonably withhold a Release of Construction Covenants. If
Agency refuses or fails to furnish a Release of Construction Covenants within thirty (30)
days after written request from Developer or any entity entitled thereto, Agency shall
provide a written statement of the reasons Agency refused or failed to furnish a Release of
Construction Covenants. The statement shall also contain Agency's opinion of the action
Developer must take to obtain a Release of Construction Covenants. If the reason for such
refusal is confined to the immediate availability of specific items or materials for
landscaping, or other minor so-called "punch list" items, Agency will issue its Release of
Construction Covenants upon the posting of a bond in an amount representing one hundred
fifty percent (150%) of the fair value of the work not yet completed or other assurance
reasonably satisfactory to Agency.
A Release of Construction Covenants shall not constitute evidence of compliance
with or satisfaction of any obligation of Developer to any holder of a mortgage, or any
insurer of a mortgage securing money loaned to finance the improvements, or any part
thereof. Such Release of Construction Covenants is not notice of completion as referred to
in the California Civil Code Section 3093. Nothing herein shall prevent or affect Developer's
right to obtain a Certificate of Occupancy from the City before the Release of Construction
Covenants is issued.
118. N. (§514) Estoppels.
No later than thirty (30) days after the request of Developer or any holder of a
mortgage or deed of trust, Agency shall, from time to time and upon the request of such
holder, execute and deliver to Developer or such holder a written statement of Agency that
no default or breach exists (or would exist with the passage of time, or giving of notice or
both) by Developer under this Agreement, if such be the determination of the Agency, and
certifying as to whether or not Developer has at the date of such certification complied with
any obligation of Developer hereunder as to which such holder may inquire. The form of
any estoppel letter shall be prepared by the holder or Developer and shall be at no cost to
Agency.
119. VI. (§600) USES OF THE SITE
120. A. (§601) Uses of the Site.
Developer hereby covenants and agrees for itself, its successors, its assigns and
every successor in interest to devote the Site to the uses specified therefore in the
Redevelopment Plan, the Deed, the Regulatory Agreement and this Agreement.
Specifically, Developer agrees to use, devote and maintain the Site for the development of
single family residential units, including the number of units specified in the Scope of
Development. Each of the units of the Project shall be devoted to single family residential
uses, owned and must be occupied by Lower and Moderate Income Households for the
time specified in the Regulatory Agreement. Every sale of a unit to a Qualified Purchaser
0f_a2;S
shall be subject to the terms and conditions of the Regulatory Agreement and contingent on
the Qualified Purchaser's execution of the Regulatory Agreement, the Agency/Purchaser
Note, and the Agency/Purchaser Deed. The Regulatory Agreement and Agency Purchaser
Deed shall be recorded against the applicable unit upon close of escrow.
121. B. (§602) Obligation to Refrain from Discrimination.
There shall be no discrimination against, or segregation of, any persons, or group of
persons, on account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the rental, sale, lease, sublease, transfer, use, occupancy, or enjoyment of the
Site, or any portion thereof. The nondiscrimination and non-segregation covenants
contained herein shall remain in effect in perpetuity.
122. C. (§603) Form of Nondiscrimination and Non-segregation Clauses.
All such deeds for sale of the units shall contain or be subject to substantially the
following nondiscrimination or non-segregation clauses:
123. 1. Deeds. In Deeds the following language shall appear: "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 on
account of race, color, creed, religion, sex, 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 persons claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with
reference to 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."
124. 2. Leases. In Leases the following language shall appear: "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 on account
of race, color, creed, religion, sex, 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, or any person claiming under or through him or her, establish
or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants or vendees in the premises herein leased."
125. 3. Contracts. Any contracts which Developer or Developer's
heirs, executors, administrators, or assigns propose to enter into for the sale, transfer, or
leasing of the Site shall contain a nondiscrimination and non-segregation clause
substantially as set forth in Section 602 and in this Section. Such clause shall bind the
contracting party and subcontracting party or transferee under the instrument. .
126. D. (§604) Maintenance of Improvements.
Developer covenants and agrees for itself, its successors and assigns, and every
successor in interest to the Site or any part thereof, that, after Agency's issuance of its
Release of Construction Covenants the Developer shall be responsible for maintenance of
all improvements that may exist on the Site from time to time, including without limitation
buildings, parking lots, lighting, signs, and walls, in first-class condition and repair, and shall
keep the Site free from any accumulation of debris or waste materials. The Developer shall
also maintain all landscaping required pursuant to Developer's approved landscaping plan
in a healthy condition, including replacement of any dead or diseased plants. The foregoing
maintenance obligations shall run with the land in accordance with the Deed. Developer's
further obligations to maintain the Site, and Agency's remedies in the event of Developer's
default in performing such obligations, are set forth in the Deed. Upon the sale of any
portion of the Site, Developer (but not Developer's successor) shall be released from the
requirements imposed by this Section 604, and the financial liability therefore, as to the
portion of the Site conveyed.
127. E. (§605) Effect of Covenants.
Agency is deemed a beneficiary of the terms and provisions of this Agreement and
of the restrictions and covenants running with the land, whether appearing in the Deed, the
Regulatory Agreement, or the Agency Deed, for and in its own right for the purposes of
protecting the interests of the community in whose favor and for whose benefit the
covenants running with the land have been provided. The covenants in favor of Agency
shall run without regard to whether Agency has been, remains or is an owner of any land or
interest therein in the Site, or in the Redevelopment Project Area, and shall be effective as
both covenants and equitable servitudes against the Site. Agency shall have the right, if
any of the covenants set forth in this Agreement which are provided for its benefit are
breached, to exercise all rights and remedies and to maintain any actions or suits at law or
in equity or other proper proceedings to enforce the curing of such breaches to which it may
be entitled. With the exception of the City, no other person or entity shall have any right to
enforce the terms of this Agreement under a theory of third-party beneficiary or otherwise.
The covenants running with the land and their duration are set forth in the Deed and the
Regulatory Agreement.
128. VII. (§700) SPECIAL PROVISIONS
129. A. (§701) Sale of Project bV Developer.
Developer covenants and agrees for itself and its successors and assigns to its
interest in the Site that the sale, resale, and occupancy of the Project shall be restricted as
follows:
1. 1. Marketinq Proqram. Developer shall market the Project to the
Agency including any amendments thereto approved by Agency in writing. The units shall
be marketed simultaneously and in accordance with the Eligibility Criteria contained in the
Agency's housing guidelines. The units shall be sold to Qualified Purchasers. Each of the
Qualified Purchasers acquiring a unit must qualify for and may obtain financial assistance
from the Agency.
2. 2. Information Packet. Developer shall prepare or cause to be
prepared an information packet for prospective Qualified Purchasers of the units, which
shall include application forms, the form of the purchase agreement, and a copy of the
Housing Guidelines. The information packet and all forms contained therein shall be
approved by the Agency in writing in advance of being used by Developer. The application
shall, at a minimum, provide for the following information: (i) the address of the Unit; (ii) the
name(s) and address(es) of the prospective purchaser; (iii) whether the prospective
purchaser is a Qualified Purchaser and the basis for determining that the prospective
purchaser is a Qualified Purchaser; (iv) the proposed selling price of the Unit and an
itemization of all amounts included in the proposed selling price; (v) the proposed date of
transfer; and (vi) the affordable housing restrictions placed on the unit.
3. 3. Approval of Prospective Purchasers. Developer shall
complete and/or have the prospective purchaser of a unit complete the information required
in the information packet, including the purchase agreement, and submit the information
packet to the Agency. If the prospective purchaser intends to acquire a unit, the Agency
may elect to schedule a meeting with the prospective purchaser. Based upon the
information submitted by Developer and the prospective purchaser, the Agency shall verify
that the prospective purchaser is a Qualified Purchaser and that the prospective purchaser
meets the eligibility requirements of the Housing Guidelines. The prospective purchaser
must satisfy the then existing requirements of the Housing Guidelines. The Developer and
the prospective purchaser shall provide such supporting documentation the Agency
reasonably deems appropriate, including an income tax return of the prospective purchaser.
Thereafter, the Developer may sell the unit to the Qualified Purchaser upon the terms and
conditions submitted to the Agency.
4. 4. Unit Limitations. Each unit shall be subject to the Regulatory
Agreement, and potentially the Purchaser Note, and Purchaser Trust Deed. The purpose of
the Regulatory Agreement, Purchaser Note and Purchaser Trust Deed shall be to secure
enforcement of Agency's objective of maintaining the Project as an affordable residential
project, recouping over time Agency's financial investment in the Project in order to enable
the Agency to increase, improve, and preserve the community's supply of affordable
housing, and enable purchasers of units to sell those units to persons who do not meet
Agency's income criteria provided that Agency is reimbursed for its investment in such
units.
130. Vill. (§800) DEFAULTS, REMEDIES AND TERMINATION
131. A. (§801) Defaults, Riqht to Cure and Waivers.
Subject to any Enforced Delay, failure or delay by either party to timely perform any
covenant of this Agreement constitutes a default under this Agreement, but only if the party
who so fails or delays does not commence to cure, correct or remedy such failure or delay
within thirty (30) days after receipt of a written notice specifying such failure or delay, and
does not thereafter prosecute such cure, correction or remedy with diligence to completion.
The injured party shall give written notice of default to the party in default, specifying
the default complained of by the injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against the party in default until
w)39
thirty (30) days after giving such notice. Failure or delay in giving such notice shall not
constitute a waiver of any default, nor shall it change the time of default.
Except as otherwise provided in this Agreement, waiver by either party of the
performance of any covenant, condition, or promise, shall not invalidate this Agreement, nor
shall it be considered a waiver of any other covenant, condition, or promise. Waiver by
either party of the time for performing any act shall not constitute a waiver of time for
performing any other act or an identical act required to be performed at a later time. The
delay or forbearance by either party in exercising any remedy or right as to any default shall
not operate as a waiver of any default or of any rights or remedies or to deprive such party
of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert, or enforce any such rights or remedies.
A default as to any conveyed Parcel shall be construed as a default with respect to
the entire Site or any other Parcel.
132. B. (§802) Leqal Actions.
1. 1. Institution of Leqal Actions. In addition to any other rights or
remedies, and subject to the requirements of Section 801, either party may institute legal
action to cure, correct or remedy any default, to recover damages for any default, or to
obtain any other remedy consistent with the purpose of this Agreement. Legal actions must
be instituted and maintained in the Superior Court of the County of Riverside, State of
California, in any other appropriate court in that county, or in the Federal District Court in the
Central District of California.
2. 2. Applicable Law and Forum. The laws of the State of California
shall govern the interpretation and enforcement of this Agreement.
3. 3. Acceptance of Service of Process. In the event that any legal
action is commenced by Developer against Agency, service of process on Agency shall be
made by personal service upon the Executive Director or Secretary of Agency, or in such
other manner as may be provided by law.
In the event that any legal action is commenced by Agency against Developer,
service of process on Developer shall be made in such manner as may be provided by law
and shall be valid whether made within or without the State of California.
133. C. (§803) Riqhts and Remedies are Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of
the parties are cumulative, and the exercise by either party of one or more of its rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other
rights or remedies for the same default or any other default by the other party.
134. D. (§804) Specific Performance.
In addition to any other remedies permitted by this Agreement, if either party defaults
hereunder by failing to perform any of its obligations herein, each party agrees that the
other shall be entitled to the judicial remedy of specific performance, and each party agrees
4vj
(subject to its reserved right to contest whether in fact a default does exist) not to challenge
or contest the appropriateness of such remedy. In this regard, Developer specifically
acknowledges that Agency is entering into this Agreement for the purpose of assisting in the
redevelopment of the Site and not for the purpose of enabling Developer to speculate with
land.
135. E. (§806) Attornev's Fees.
If either party to this Agreement is required to initiate or defend any action or
proceeding in any way arising out of the parties' agreement to, or performance of, this
Agreement, or is made a party to any such action or proceeding by the Escrow Agent or
other third party, such that the parties hereto are adversarial, the prevailing party, as
between the Developer and Agency only, in such action or proceeding, in addition to any
other relief which may be granted, whether legal or equitable, shall be entitled to reasonable
attorney's fees from the other. As used herein, the "prevailing party" shall be the party
determined as such by a court of law, pursuant to the definition Code of Civil Procedure
Section 1032(a)(4), as it may be subsequently amended. Attorney's fees shall include
attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be
entitled to all other reasonable costs for investigating such action, taking depositions and
discovery and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of such action
and shall be enforceable whether or not such action is prosecuted to judgment.
136. IX. (§900) GENERAL PROVISIONS
137. A. (§901) Notices, Demands and Communications Between the
Parties.
Except as expressly provided to the contrary herein, any notice, consent, report,
demand, document or other such item to be given, delivered, furnished or received
hereunder shall be deemed given, delivered, furnished, and received when given in writing
and personally delivered to an authorized agent of the applicable party, or upon delivery by
the United States Postal Service, first-class registered or certified mail, postage prepaid,
return receipt requested, or by a national "overnight courier" such as Federal Express, at
the time of delivery shown upon such receipt; in either case, delivered to the address,
addresses and persons as each party may from time to time by written notice designate to
the other and who initially are:
Agency: Palm Springs Community
Redevelopment Agency
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
Copy to: WOODRUFF, SPRADLIN & SMART
701 Sout Parker St., Suite 8000
Orange, CA 92868-4760
138. B. (§902) Nonliability of City and Agency Officials and Employees;
Conflicts of
Interest; Commissions.
139. 1. Personal Liability. No member, official, employee, agent or
contractor of City or Agency shall be personally liable to Developer in the event of any
default or breach by Agency or for any amount which may become due to Developer or on
any obligations under the terms of the Agreement; provided, it is understood that nothing in
this Section 902 is intended to limit Agency's liability.
140. 2. Financial Interest. No member, official, employee or agent of
City or Agency shall have any financial interest, direct or indirect, in this Agreement, nor
participate in any decision relating to this Agreement which is prohibited by law.
141. 3. Commissions. Neither the Agency nor the Developer has
retained any broker or finder or has paid or given, and will not pay or give, any third person
any money or other consideration for obtaining this Agreement. Neither party shall be
liable for any real estate commissions, brokerage fees or finders fees which may arise from
this Agreement, and each party agrees to hold the other harmless from any claim by any
broker, agent, or finder retained by such party.
142. C. (§903) Enforced Delay: Extension of Times of Performance.
Time is of the essence in the performance of this Agreement.
Notwithstanding the foregoing, in addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in default where delays or
defaults are due to war; insurrection; strikes; lock-outs; riots, floods; earthquakes; fires;
casualties; supernatural causes; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; subsurface conditions on the Site and
unknown soils conditions; governmental restrictions or priority litigation; unusually severe
weather; inability to secure necessary labor, materials or tools; delays of any contractor,
subcontractor or supplier; acts of the other party; acts or the failure to act of a public or
governmental agency or entity (except that acts or the failure to act of Agency shall not
excuse performance by Agency unless the act or failure is caused by the acts or omissions
of Developer); or any other causes beyond the reasonable control or without the fault of the
party claiming an extension of time to perform. In the event of such a delay (herein
"Enforced Delay"), the party delayed shall continue to exercise reasonable diligence to
minimize the period of the delay. An extension of time for any such cause shall be limited to
the period of the enforced delay, and shall commence to run from the time of the
commencement of the cause, provided notice by the party claiming such extension is sent
to the other party within ten (10) days of the commencement of the cause.
_%
The following shall not be considered as events or causes beyond the control of
Developer, and shall not entitle Developer to an extension of time to perform: (i)
Developer's failure to obtain financing for the Project.
Times of performance under this Agreement may also be extended by mutual written
agreement by Agency and Developer. The Executive Director of Agency shall have the
authority on behalf of Agency to approve extensions of time not to exceed a cumulative total
of one hundred eighty (180) days with respect to the development of the Site.
143. D. (§904) Books and Records.
144. 1. Developer to Keep Records. Developer shall prepare and
maintain all books, records and reports necessary to substantiate Developer's compliance
with the terms of this Agreement or reasonably required by the Agency.
145. 2. Right to Inspect. Either party shall have the right, upon not
less than seventy-two (72) hours notice, at all reasonable times, to inspect the books and
records of the other party pertaining to the Site as pertinent to the purposes of this
Agreement.
146. 3.
147. E. (§905) Assurances to Act in Good Faith.
Agency and Developer agree to execute all documents and instruments and to take
all action, including deposit of funds in addition to such funds as may be specifically
provided for herein, and as may be required in order to consummate conveyance and
development of the Site as herein contemplated, and shall use their commercially
reasonable good faith efforts, to accomplish the closing and subsequent development of the
Site in accordance with the provisions hereof. Agency and Developer shall each diligently
and in good faith pursue the satisfaction of any conditions or contingencies subject to their
approval.
148. F. (§906) Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of
the language used and shall not be construed for or against either party by reason of the
authorship of this Agreement or any other rule of construction which might otherwise apply.
The Section headings are for purposes of convenience only, and shall not be construed to
limit or extend the meaning of this Agreement. This Agreement includes all attachments
attached hereto, which are by this reference incorporated in this Agreement in their entirety.
This Agreement also includes the Redevelopment Plan and any other documents
incorporated herein by reference, as though fully set forth herein.
149. G. (§907) Entire Agreement, Waivers and Amendments.
This Agreement integrates all of the terms and conditions mentioned herein, or
incidental hereto, and this Agreement supersedes all negotiations and previous agreements
between the parties with respect to all or any part of the subject matter hereof. All waivers
of the provisions of this Agreement, unless specified otherwise herein, must be in writing
and signed by the appropriate authorities of Agency or Developer, as applicable, and all
amendments hereto must be in writing and signed by the appropriate authorities of Agency
and Developer.
150. H. (§908) Severabilitv.
In the event any term, covenant, condition, provision or agreement contained herein
is held to be invalid, void or otherwise unenforceable, by any court of competent jurisdiction,
such holding shall in no way affect the validity or enforceability of any term, covenant,
condition, provision or agreement contained herein.
151. I. (§909) Effect of Redevelopment Plan Amendment.
Pursuant to the provisions of the Redevelopment Plan for modification or
amendment thereof, Agency agrees that no further amendment to the Redevelopment Plan
which changes the uses or development permitted on the Site, or changes the restrictions
or controls that apply to the Site, or otherwise affects the Site, shall be made or become
effective as to the Site without the prior written consent of Developer. Further amendments
to the Redevelopment Plan applying to other property in the Project Area shall not require
the consent of Developer.
152. J. (§910) Time for Acceptance of Aqreement by Agency.
This Agreement, when executed by Developer and delivered to Agency, must be
authorized, executed and delivered by Agency, not later than the time set forth in the
Schedule of Performance or this instrument shall be void, except to the extent that
Developer shall consent in writing to further extensions of time for the authorization,
execution, and delivery of this Agreement. After execution by Developer, this Agreement
shall be considered an irrevocable offer until such time as such offer shall become void due
to the failure of the Agency to authorize, execute and deliver the Agreement in accordance
with this Section.
153. K. (§911) Execution.
This Agreement may be executed in counterparts, each of which shall be deemed to
be an original, and such counterparts shall constitute one and the same instrument.
Agency represents and warrants that: (i) it is a Redevelopment Agency duly
organized and existing under the laws of the State of California; (ii) by proper action of
Agency, Agency has been duly authorized to execute and deliver this Agreement, acting by
and through its duly authorized officers; and (iii) the entering into this Agreement by Agency
does not violate any provision of any other agreement to which Agency is a party.
Developer represents and warrants that: (i) it is duly organized and existing .under
the laws of the State of California; (ii) by proper action of Developer, Developer has been
0C)14
duly authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers; and (iii) the entering into this Agreement by Developer does not violate
any provision of any other agreement to which Developer is a party.
154. L. (§ 912) Attachments.
The following Attachments are attached hereto and incorporated herein by
reference:
Attachment No. 1 Site Map
Attachment No. 2 Legal Description
Attachment No. 3 Schedule of Performance
Attachment No. 4 Scope of Development
Attachment No. 5 Release of Construction Covenants
Attachment No. 6 Grant Deed
Attachment No. 7 Regulatory Agreement and Declaration of
Covenants and Restrictions
Attachment No. 8 Agency/Developer Promissory Note
Attachment No. 9 Agency/Developer Deed of Trust with
Assignment
of Rents
Attachment No. 10 Agency/Purchaser Promissory Note
Attachment No. 11 Agency/Purchaser Deed of Trust
[END -- SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date of execution by the Agency.
"AGENCY"
PALM SPRINGS COMMUNITY
REDEVELOPMENT AGENCY,
a public body corporate and politic
Date Chairperson
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
WOODRUFF, SPRADLIN & SMART
Agency Counsel
"DEVELOPER"
Angeles Investment Group and Kemet
Management and Development,
a Nevada limited liability company
Date Name:
Title:
[END OF SIGNATURES]
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I:EFT NOP1� THIS PROJECT SHALL'COMPLY WITH TITLE 24 AND i
THE 2001 CALIFORN IA BUILDING,
E'a.... 'n' MECHANIGAL, PLUMBING AND ELECTRICAL CODES I
6 —
THE HIGHLANDS DDA
SCHEDULE OF PERFORMANCE
Agreement
Item To Be Performed Time for Performance Reference
Error! Bookmark not defined.. May 4, 2005
Agency holds public hearing on
DDA
Error! Bookmark not defined..
Developer provides executed
copies of DDA to Agency
Error! Bookmark not defined.. Within 30 days after execution 810; 502.2
Agency approves or disapproves by Developer of DDA and
DDA and, if approves, executes delivery to Agency
DDA
Error! Bookmark not defined.. Open Within two (2) weeks after 404
Escrow execution of DDA by Agency
Error! Bookmark not defined.. Within 60 days after Agency 405.2; 408
Developer provides Agency with execution of DDA
evidence of financial capability
Error! Bookmark not defined.. Within 30 days after Agency 407.4
Agency delivers to Developer opening of escrow
Preliminary Title Report
Error! Bookmark not defined.. Within 15 days after delivery 407.4
Developer approves or of Preliminary Title Report to
disapproves title exceptions Developer
Error! Bookmark not defined.. Within 15 days after receipt of 407.4
Agency delivers notice to Developer's notice
Developer as to whether it will
cure disapproved exceptions
Error! Bookmark not defined.. City Within 45 days after opening 405.2(c);
approves or disapproves Site Plan of completed application 502
Error! Bookmark not defined.. City One (1) week prior to Closing 406.21
approves or disapproves Site Plan
Agreement
Item To Be Performed Time for Performance Reference
Error! Bookmark not defined..
Deposits into escrow by Agency:
Error! Bookmark not defined., City Within times set forth in 502.2; 502.5
and Agency approve (or Section 502
disapprove) preliminary and,
thereafter, final drawings and
specifications, and if disapproves,
Developer revises and resubmits
preliminary or final drawings
Error! Bookmark not defined.. One (1) week prior to Closing 406.2
Escrow Agent gives notice of
fees, charges, and costs to close
escrow
Error! Bookmark not defined..
Deposits into escrow by Agency:
a) Executed Deed On or before 1:00 p.m. on the 406.3
last business day preceding
the Closing Date
b) Estoppel Certificate On or before 1:00 p.m. on the 406.3
last business day preceding
the Closing Date
c) c) Payment of On or before 1:00 p.m. on the 406.3; 410
Agency's last business day preceding
Share of Escrow Costs the Closing Date
d) Taxpayer ID Certificate Prior to Closing Date 405.3
e) FIRPTA Certificate Within 15 days after opening 405.1
Error! Bookmark not defined..
Deposits into escrow by
Developer:
a) Executed Developer Note On or before 1:00 p.m. on the 406.4
and Developer Deed of last business date preceding J
Trust the Closing Date
Agreement
Item To Be Performed Time for Performance Reference
b) Estoppel Certificate On or before 1:00 p.m. on the 406.4
last business date preceding
the Closing Date
c) Payment of Developer's On or before 1:00 p.m. on the 406.4; 410
Share of Escrow Costs last business date preceding
the Closing Date
d) Certificates evidencing Prior to closing, site 506
insurance preparation or construction
e) Taxpayer ID Certificate Prior to Closing Date 405.3
Error! Bookmark not defined.. Within 30 days after date 411.2; 701
Agency or Developer, as case established therefore, or date
may be, may cure any condition to of breach, as the case may be
closing disapproved or waived; or
may cure any default
Error! Bookmark not defined.. Prior to close of escrow 409.2
Agency completes all remediation
work required pursuant to Section
409
14. Developer approves condition of
Site
15. Close of escrow for the Site ; Not later than 2 months after 409.2
recordation and delivery of execution of DDA by Agency
documents
16. Developer obtains all necessary Within 30 days after close of 405; 406
permits and approvals, submits escrow
certificates of insurance, and
commences construction of
improvements on the Site
17. Developer completes construction Within 30 days after close of 504
of improvements escrow
18, Agency issues Release of Within 30 days of written 513
Construction Covenants request by Developer, and
Developer's satisfactory .
completion of all
improvements for each Parcel
It is expressly agreed that each act required herein shall be required for all Parcels
unless otherwise specified.
It is understood that the foregoing Schedule of Performance is subject to all of the
terms and conditions set forth in the text of the Agreement. The summary of the items of
performance in this Schedule of Performance is not intended to supersede or modify the
more complete description in the text; in the event of any conflict or inconsistency between
this Schedule of Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or
amended only by written agreement signed by both Developer and Agency. A failure by
either party to enforce a breach of any particular time provision shall not be construed as a
waiver of any other time provision. The Executive Director of Agency shall have the
authority to approve extensions of time without Agency Board action not to exceed a
cumulative total of 180 days as provided in Section 903.
THE HIGHLANDS DDA
SCOPE OF DEVELOPMENT
PROJECT CONCEPT
The Project Concept encompasses the development by Developer of five up to (5)
Parcels as single family residences (hereinafter "Site") in the City of Palm Springs which
shall be reserved for sale to Lower or Moderate Income Households. The Developer and
Agency agree that the Site shall be developed and improved by Developer in accordance
with the provisions of this Agreement, which includes the Basic Concept Drawings, subject
to all applicable codes, ordinances, and statutes including requirements and procedures set
forth in the Palm Springs Municipal Code and the Redevelopment Plan, adopted in
conjunction with or subsequent to adoption of this Agreement. Any issues regarding the
Scope of Development that are not resolved herein or in the Agreement shall be resolved in
accordance with the Palm Springs Municipal Code.
SITE DESCRIPTION
The Site is located on a number of non-contiguous Parcels in the City of Palm
Springs, as more fully described in the Site Map attached to the Agreement as Attachment
No. 1.
DEMOLITION AND CLEARANCE
Developer, at its sole cost and expense, shall demolish and remove within the
project boundaries, all building slabs and foundations (to below the lowest footing level),
pavement, curb, gutters, sidewalks, overhead and underground utilities and appurtenances
thereto, and appropriately cap, rework, reroute, or terminate same as necessary to
continuing optimal functioning of undisturbed improvements and utilities.
SITE PREPARATION
Developer shall, at its sole cost and expense, perform or cause to be performed
grading plan preparation, fine grading and related compaction, and other site preparation as
necessary for construction of the Project, as approved by the City Engineer/Public Works
Director. Plans shall be prepared by a licensed civil engineer in good standing and subject
to the approval of the City Engineer/Public Works Director.
Developer shall, at its sole cost and expense, scarify, over-excavate, cut, fill,
compact, rough grade, and/or perform all grading as required pursuant to an approved
grading plan(s) to create finished lots, building pads to develop the Project described
herein.
PROJECT DESIGN
Error! Bookmark not defined.. Design
The Project shall be built as La Primavera plan or its alternates 1 through 3 as
approved by the City of Palm Springs. The improvements to be constructed on the Site
shall be of high architectural quality, shall be well landscaped, and shall be effectively and
aesthetically designed.
Error! Bookmark not defined.. Architectural Concept
The Project shall be designed and constructed as an integrated development in
which the buildings shall have architectural excellence. The improvements to be
constructed on the Site shall be of high architectural quality, shall be well landscaped, and
shall be effectively and aesthetically designed. The shape, scale of volume, exterior design,
and exterior finish of each building, structure, and other improvements must be consonant
with, visually related to, physically related to, and an enhancement to each other and, to the
extent reasonably practicable, to adjacent improvements existing or planned within the
Project Area. The Developer's plans, drawings, and proposals submitted to the Agency for
approval shall describe in reasonable detail the architectural character intended for the
Project. The open spaces between buildings shall be designed, landscaped and developed
with the same degree of excellence. The total development shall be in conformity with the
Redevelopment Plan for the Project Area.
C. Landscaping
Developer shall install and on-site landscaping and automatic irrigation
pursuant to approved plans consistent with the Palm Springs Municipal Code.
D. Mechanical Equipment
On-site mechanical equipment shall be completely screened from public view.
Screening material shall be constructed of materials which coordinate with the overall
architectural theme. Where public visibility will be minimal, the Planning Director may
permit use of landscaping to screen ground mounted equipment.
E. Offsite Improvements
Pursuant to the Agreement, Developer shall construct, or cause to be performed,
any offsite improvements required by law or as a condition to any governmental or local
approval or permit.
ATTACHMENT NO. 5
THE HIGHLANDS DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Palm Springs Community Redevelopment Agency
5050 North Palm Springs Avenue
Palm Springs, CA 91706
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
RELEASE OF CONSTRUCTION COVENANTS
WHEREAS, by a Disposition and Development Agreement ("Agreement") dated
, 2004, by and between the PALM SPRINGS COMMUNITY REDEVELOPMENT
AGENCY ("Agency"), and Angeles Investment Group and Kemet Management and
Development, a [Nevada limited liability company] ("Developer"), Developer has agreed to
develop a single family residential development ("Project") on the Site (as such term is
defined in the Agreement); and
WHEREAS, as referenced in the Agreement, Agency shall furnish Developer with a
Release of Construction Covenants upon completion of construction and development,
which release shall be in such form as to permit it to be recorded in the Riverside Official
Records of the County Clerk of the County of Riverside, California; and
WHEREAS, Developer has requested that Agency furnish Developer with the
Release of Construction Covenants for the Parcel more particularly described on Exhibit "A"
attached hereto and incorporated herein by reference (the "Parcel"); and
WHEREAS, the Agreement provided for certain covenants to run with the land,
which covenants were incorporated in the Regulatory Agreement for units, as those terms
are defined in the Agreement; and
WHEREAS, such Release of Construction Covenants shall constitute a conclusive
determination by Agency of the satisfactory completion by Developer of the construction
and development required by the Agreement and of Developer's full compliance with the
terms of the Agreement with respect to such construction and development, but not of the
Regulatory Agreements, the provisions of which shall continue to run with the land pursuant
to their terms; and
WHEREAS, Agency has conclusively determined that the construction and
development on the Parcel required by the Agreement has been satisfactorily completed by
Developer in full compliance with the terms of the Agreement.
NOW, THEREFORE,
Error! Bookmark not defined.. The improvements required to be constructed
have been satisfactorily completed in accordance with the provisions of said Agreement.
Error! Bookmark not defined.. This Release shall constitute a conclusive
determination of satisfaction of the agreements and covenants contained in the Agreement
with respect to the obligations of the Developer, and its successors and assigns, to
construct the improvements and the dates for the beginning and completion thereof.
Error! Bookmark not defined.. This Release shall not constitute evidence of
Developer's compliance with the Regulatory Agreement, the provisions of which shall
continue to run with the land.
Error! Bookmark not defined.. This Release shall not constitute evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of a
mortgage or any insurer of a mortgage, securing money loaned to finance the
improvements or any part thereof.
Error! Bookmark not defined.. This Release is not a Notice of Completion as
referred to in California Civil Code Section 3093.
Error! Bookmark not defined.. Except as stated herein, nothing contained in this
instrument shall modify in any way any other provisions of the Agreement or any other
provisions of the documents incorporated therein.
IN WITNESS WHEREOF, the Agency has executed this Release of Construction
Covenants this day of
PALM SPRINGS COMMUNITY
REDEVELOPMENT AGENCY, a
public body, corporate and politic
By
Executive Director
STATE OF CALIFORNIA )
sis.
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(is), 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.
Witness my hand and official seal.
Notary Public
[SEAL]
ATTACHMENT NO. 6
THE HIGHLANDS DDA
FREE RECORDING REQUESTED BY AND
AFTER RECORDATION RETURN TO:
Palm Springs Community Redevelopment Agency
5050 North Palm Springs Avenue
Palm Springs, CA 91706
Attn: Executive Director
(Space Above This Line For Recorder's Office Use Only)
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,
THE PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY, a public body,
corporate and politic ("Grantor"), acting under the Community Redevelopment Law of the
State of California and to carry out the Amended and Restricted Redevelopment Plan for
the City Industrial Redevelopment Project #1 ("Redevelopment Plan"), hereby grants to
Angeles Investment Group and Kemet Management and Development, a [Nevada
corporation] ("Grantee"), the real property ("Site") legally described in Exhibit "A" attached
hereto and incorporated herein by this reference.
As conditions of this conveyance, the Grantee covenants by and for itself and any
successors in interest for the benefit of the Grantor and the City of Palm Springs ("City"), as
follows:
1. 1. Governinq Documents. The Site is conveyed pursuant to a
Disposition and Development Agreement (the "DDA") entered into by and between Grantor
and Grantee and dated , 2005, and subject to the terms of the DDA, this
Deed, and the Redevelopment Plan. The DDA and the Redevelopment Plan are on file in
the office of the City Clerk of the City of Palm Springs, and are incorporated herein by this
reference. Grantee covenants and agrees for itself and its successors and assigns to
develop the Site in accordance with the DDA and thereafter to use, operate and maintain
the Site in accordance with the DDA, the Redevelopment Plan and this Deed. In the event
of any conflict between this Deed and the DDA, the provisions of the DDA shall control.
2. 2. Reservation of Existinq Streets. Grantor excepts and reserves any
existing street, proposed street, or portion of any street or proposed street lying outside the
boundaries of the Site which might otherwise pass with a conveyance of the Site.
3. 3. Use of Site. The Grantee covenants that Grantee may only use the
Site for low and moderate affordable residential purposes as consistent with the time period
and other terms, covenants and conditions set forth herein and in the DDA, by which
Grantee has agreed to be bound. Grantee shall have no right to sell any parcels of the Site
except as provided in the DDA and with the recordation of the Regulatory Agreement.
01961
Breach of the terms, covenants, conditions, and provisions of the DDA shall be a material
breach of this conveyance.
4. 4. Encumbrances Prohibited. Prior to issuance of the Release of
Construction Covenants by the Grantor as provided in the DDA, the Grantee shall not place
or suffer to be placed on the Site any lien or encumbrance other than mortgages, deeds of
trust, sales and leases back or any other form of conveyance required for financing of the
acquisition of the Site, the construction of improvements on the Site, and any other
expenditures necessary and appropriate to develop the Site, except as specifically provided
in the DDA and attachments thereto. The Grantee shall not enter into any such conveyance
for financing without prior written approval of Grantor.
5. 5. Non-Discrimination, The Grantee covenants that there shall be no
discrimination against, or segregation of, any persons, or group of persons, on account of
race, color, creed, religion, sex, marital status, national origin or ancestry in the rental, sale,
lease, sublease, transfer, use, occupancy, or enjoyment of the Site, or any portion thereof,
nor shall Grantee, or any person claiming under or through Grantee, establish or permit any
such practice or practices of discrimination or segregation with references to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees
of the Site or any portion thereof. The nondiscrimination and non-segregation covenants
contained herein shall remain in effect in perpetuity.
6. 6. Form of Nondiscrimination Clauses in Aqreements. Grantee
shall refrain from restricting the rental, sale, or lease of any portion of the Site on the basis
of race, color, creed, religion, sex, marital status, age, physical or mental disability,
ancestry, or national origin of any person. All such deeds, leases, or contracts shall contain
or be subject to substantially the following nondiscrimination or non-segregation clauses:
a. a. Deeds: In deeds the following language shall appear: "The
grantee
herein covenants by and for itself, its 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 on account of race, color,
creed, religion, sex, marital status, age, physical or mental disability, ancestry, or
national origin in the sale, lease, rental, sublease, transfer, use, occupancy, tenure,
or enjoyment of the land herein conveyed, nor shall the grantee itself, or any persons
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to 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."
b. b. Leases: In leases the following language shall appear: "The
lessee herein covenants by and for itself, its heirs, executors, administrators,
successors, and assigns, and all persons claiming under or through them, 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 on account of race, color, creed, religion, sex, marital status; age,
physical or mental disability, ancestry, or national origin in the leasing, subleasing,
f;?? l��a
renting, transferring, use, occupancy, tenure, or enjoyment of the land herein leased
nor shall the lessee itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the land herein leased."
C. C. Contracts: In contracts the following language shall appear:
"There shall be no discrimination against or segregation of any person or group of
per-sons on account of race, color, creed, religion, sex, marital status, age, physical
or mental disability, ancestry, or national origin in the sale, lease, rental, sublease,
transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee
itself, or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the land."
The foregoing covenants shall remain in effect in perpetuity.
7. 7, Mortqaqe Protection. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or
render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other
financing or security instrument permitted by the DDA; provided, however, that any
successor of Grantee to the Site shall be bound by such remaining covenants, conditions,
restrictions, limitations and provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
8. 8. Covenants to Run With the Land. The covenants contained in this
Grant Deed shall be construed as covenants running with the land and not as conditions
which might result in forfeiture of title, and shall be binding upon Grantee, its heirs,
successors and assigns to the Site, whether their interest shall be fee, easement,
leasehold, beneficial or otherwise.
9. 9. Amendments to Redevelopment Plan. Any amendments to the
Redevelopment Plan which change the uses or development permitted on the Site or
change the restrictions or controls that apply to the Site or otherwise affect the Site shall
require the written consent of the Grantee. Amendments to the Redevelopment Plan
applying to other property in the Project Area shall not require the consent of the Grantee.
10. 10. Counterparts. This Deed may be executed in any number of
counterparts, each of which shall be an original and all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to
be executed on their behalf by their respective officers thereunto duly authorized, this
day of 20_.
"GRANTOR"
PALM SPRINGS COMMUNITY
REDEVELOPMENT AGENCY,
a public body corporate and politic
Date Chairperson
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
WOODRUFF, SPRADLIN &SMART
Agency Counsel
[SIGNATURES CONTINUED ON NEXT PAGE]
rig
By its acceptance of this Grant Deed, Grantee hereby agrees as follows:
Error! Bookmark not defined.. Grantee expressly understands and agrees that
the terms of the Grant Deed shall be deemed to be covenants running with the land and
shall apply to all of the Grantee's successors and assigns.
Error! Bookmark not defined.. The provisions of this Grant Deed are hereby
approved and accepted.
"GRANTEE"
THE HIGHLANDS/PALM SPRINGS VENTURE
a Nevada limited liability corporation
Date Name:
Title:
Date Name:
Title:
[END OF SIGNATURES]
Boa
ATTACHMENT NO. 7
THE HIGHLANDS DDA
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Palm Springs Redevelopment Agency
3200 E Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, California 92263-2743
Attention: Executive Director
Exempt from payment of a recording fee pursuant to Government Code Section
6103.
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
This REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS (the "Agreement') is entered into as of this day of
20_, by and between the PALM SPRINGS REDEVELOPMENT AGENCY, a public body,
corporate and politic ("Agency")community, and
("Owner").
RECITALS
A. A. Owner has entered into a purchase agreement (the "Purchase
Agreement') to purchase from ANGELES INVESTMENT GROUP AND KEMET
MANAGEMENT AND DEVELOPMENT (the "Developer') certain real property located at
3200 Tahquitz Canyon Way, Palm Springs, California 92263, and more particularly
described in the legal description attached hereto as Exhibit "A" (the "Property").
B. B. Agency has developed a program to assist persons and families of
very low, low, and moderate income, as defined by Section 50093 of the California Health
and Safety Code, to rehabilitate residential property and to increase, improve and preserve
very low, low and moderate-income housing available at affordable housing cost (as defined
in Health and Safety Code Section 50052.5) within the territorial jurisdiction of Agency in
accordance with the Community Redevelopment Law, Health and Safety Code Section
33000, et seq. In furtherance of this program, Agency has provided financial assistance in
the development of the housing project in which the Property is located.
C. C. Agency and the Developer entered into that certain Disposition and
Development Agreement (the "DDA") dated 2005, and a Grant Deed, dated
recorded as Instrument No. in the official records of Riverside
County. Pursuant to the terms of the DDA and the Grant Deed vesting title to the Property
in Developer, title to the Property may be vested in Owner subject to this Regulatory
Agreement, and the terms hereof shall be binding on the Owner and its successors in
interest in the Property for so long as the Regulatory Agreement shall remain in effect.
D. D. Owner requires financial assistance to purchase the Property and
would not be able to purchase the Property without such assistance. Owner is a person or
family of [low or moderate] income who currently earns less than _%
[Insert or 120%] of the current annual median income for the CPI definition area, adjusted
for family size, as those terms are defined in California Health and Safety Code Section
50093.
E. E. Owner has represented to Agency that Owner and Owner's
immediate family shall reside in the Property as the family's principal residence at all times
throughout the term of this Agreement.
F. F. Agency desires to lend and Owner desires to borrow funds in the
form of a loan secured by a second lien deed of trust to assist Owner to purchase the
Property, subject to the terms and conditions set forth herein. The terms, conditions, and
amount of the loan shall be specified in the Agency Promissory Note.
G. G. This Agreement is in furtherance of Agency's program to create long-
term affordable housing units in the City of Palm Springs. This goal is accomplished
through the terms and conditions of this Agreement which restrict the resale price of the
Property to a level that is affordable to buyers of a certain income level.
NOW THEREFORE, in consideration of the benefits received by Owner, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Owner and Agency agree as follows:
Definitions. The following defined terms have the meanings given below:
"Affordability Period" means the period commencing on the date of
recordation of this Agreement and ending forty-five (45) years thereafter.
"Affordable Housing Cost" shall mean that purchase price which would result
in a Monthly Housing Cost (as defined below) which does not exceed [Insert one of the
following:
-Insert if Eligible Persons and Families are to have an income which
does not exceed 120% of median income (moderate income): the
product of thirty-five percent (35%) times one hundred ten percent
(110%) of the CPI definition area median income adjusted for family size
appropriate for the Property ("Median Income") for purchasers earning
not greater than one hundred ten percent (110%) of the Median Income,
or the product of thirty-five (35%) times the actual gross income of the
household for purchasers earning more than one hundred ten percent
(110%) and not more than one hundred twenty percent (1209l0) of the
Median Income,]
:')SQ.v
all as more particularly set forth in Section 50052.5 of the California Health and Safety
Code.
"Agency" means the Palm Springs Community Redevelopment Agency, a
public body, corporate and politic.
"Agency Loan" means the loan to be made by Agency to Owner in the
amount of $ . The amount of the Agency Loan shall be the difference between
the Purchase Price and the Affordable Housing Cost, as further described in the Agency
Promissory Note.
"Agency Option" shall mean Agency's option to purchase the Property, as
more particularly described in Section 5.2 of this Agreement.
"Agreement" means this Regulatory Agreement and Declaration of Covenants
and Restrictions by and between Agency and Owner.
"Eligible Person or Family" or "Eligible Persons or Families" shall mean as
further described in the Housing Guidelines.
"Event of Acceleration" shall have the meaning ascribed in Section 7 of this
Agreement.
"Exempt Transfer" shall have the meaning ascribed in Section 5 of this
Agreement. An Exempt Transfer is a Transfer of the Property that does not trigger
repayment of the Agency Loan and the Shared Appreciation Amount.
"First Lien" shall have the meaning ascribed in Section 7 of this Agreement.
"Monthly Housing Cost" shall include all of the following associated with the
Property, estimated or known as of the date of the proposed sale of the Property: (i)
principal and interest payments on a mortgage loan not exceeding the prevailing
conventional home mortgage lending rates applied by any reputable institutional home
mortgage lender, or the lending rates of any government-subsidized or special mortgage
program for which a Qualified Purchaser qualifies and has obtained a first trust deed loan
for the acquisition of the Property; (ii) property taxes and assessments; (iii) fire and casualty
insurance covering replacement value of property improvements; and (iv) a reasonable
utility allowance. Monthly housing cost of a purchaser shall be an average of estimated
costs for the next twelve (12) months.
"Note" or "Agency Promissory Note" shall mean the promissory note
memorializing Owner's obligation to pay the Agency Loan, on the terms set forth therein.
"Owner" has the meaning set forth in the preamble to this Agreement.
"Agency Deed of Trust" shall mean the deed of trust which shall be recorded
against the Property, securing the Note and this Agreement, in the form as distributed to
Owner prior to receiving the Agency Loan.
"Qualified Purchaser" shall have the meaning ascribed in Section 5 of this
Agreement.
"Permitted Transfer" shall have the meaning ascribed in Section 4 of this
Agreement.
"Prohibited Transfer" shall have the meaning ascribed in Section 4 of this
Agreement.
"Property" shall have the meaning ascribed in Recital B of this Agreement.
Owner Representations and Warranties. Owner represents and warrants to Agency that
the financial and other information previously provided to Agency by Owner for the purpose
of qualifying to purchase the Property was true and correct at the time it was given and
remains true and correct as of the date of this Agreement. Owner acknowledges that
Agency is relying upon Owner's representations that Owner is an Eligible Person or Family,
and Agency would not have entered into this Agreement if Owner did not so qualify.
Affordability Covenants. During the Affordability Period, the Property shall be owned and
occupied by Owner or persons, who at the time of purchase, are Eligible Persons or
Families.
Transfer of Property. All Prohibited Transfers (as defined below) shall constitute Events of
Acceleration, causing the Agency Loan to become due and payable. If the Prohibited
Transfer is a result of an affirmative conveyance of the Property by Owner (i.e., not arising
from Owner's death or operation of law), and the conveyance is not an Exempt Transfer
pursuant to Section 5, the Prohibited Transfer shall also constitute a default under this
Agreement, entitling Agency to exercise all remedies available at law or equity. A
"Prohibited Transfer" is any Transfer of the Property that does not constitute a Permitted
Transfer. A "Transfer" is any sale, assignment, or transfer of an interest in the Property,
including, without limitation, a fee simple interest, tenancy in common, joint tenancy,
community property, tenancy by the entireties, life estate, or other limited estate, leasehold
interest or any rental of the Property, or any interest evidenced by a land contract, or any
mortgage or other encumbrance.
The following Transfers shall constitute "Permitted Transfers" so long as the
transferee(s) give written notice to Agency of such event within thirty (30) days of its
occurrence and the transferee(s) assume the Owner's obligations under this Agreement,
the Promissory Note, and the Deed of Trust, by execution of an assignment and assumption
agreement to be provided by Agency, if such assumption does not occur by operation of
law: (i) transfer by gift, devise, or inheritance to the Owner's spouse; (ii) transfer of title by
an Owner's death to a surviving joint tenant, tenant by entireties, or a surviving spouse of
community property; (iii) transfer of title to a spouse as part of divorce or dissolution
proceedings or in conjunction with marriage; and (iv) an Exempt Transfer, as further
explained in Section 5 of this Agreement. A sale or transfer which under federal law, would
not, by itself, permit Agency to exercise a due on sale or due on encumbrance clause shall "
also constitute a Permitted Transfer.
Exempt Transfer; Sale to Qualified Purchaser at Affordable Housing Cost;
Agency Option to Purchase. An "Exempt Transfer" is (i) the sale of the Property
by the Owner to a person who is an Eligible Person or Family ("Qualified Purchaser")
(and that person's status as a Qualified Purchaser has been verified by Agency
pursuant to this Section 5) provided that the Qualified Purchaser assumes the
Promissory Note, the Agency Deed of Trust, and this Agreement pursuant to an
assignment and assumption agreement approved by Agency, and the sale price less
the balance of the Agency Loan does not exceed the Affordable Housing Cost for
the Qualified Purchaser, or (ii) the sale of the Property by the Owner to Agency or a
person designated by Agency pursuant to Section 5.2 of this Agreement. An
Exempt Transfer is a Permitted Transfer.
Sale by Owner. If Owner desires to sell, exchange, quitclaim or in
any manner dispose of the Property or any part thereof ("Proposed Sale"), Owner
shall notify Agency in writing no later than ten (10) days prior to the date the Property
is placed on the market for a Proposed Sale. Owner shall not sell or transfer the
Property until such time as Agency has determined (i) the proposed buyer intends to
occupy the Property as its principal residence; (ii) the proposed buyer is a Qualified
Purchaser and eligible under the Housing Guidelines; (iii) the Proposed Sale is at an
Affordable Housing Cost (excluding the Agency Loan assumed by the buyer). (iv)
Accrual of equity is prohibited through refinancing.
Owner shall cooperate with and reasonably assist Agency with the determination of
whether a proposed buyer is a Qualified Purchaser. In order to verify the buyer's status as
a Qualified Purchaser, Owner shall submit to Agency the identity of the proposed buyer and
adequate information evidencing the income of the proposed buyer. Said income
information shall be submitted not less than thirty (30) days prior to the Proposed Sale and
shall include original or true copies of pay stubs, income tax records or other financial
documents in order that Agency may determine and verify the household income of the
proposed buyer to determine Qualified Purchaser status and whether the Property is
available to such buyer at an Affordable Housing Cost (excluding the Agency Loan
assumed by the buyer). Agency may request additional information reasonably required to
verify the proposed buyer's status.
OWNER UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE
HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE PROPOSED SALE,
TAKING INTO CONSIDERATION INTEREST RATES, THE TERMS OF SALE OFFERED
TO AND THE ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER AND
OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE
TRANSFER PRICE, PERMITTED HEREUNDER WILL BE LESS THAN THE FAIR
MARKET VALUE OF THE PROPERTY AND MAY NOT INCREASE OR DECREASE IN
THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT
ENCUMBERED BY THE AFFORDABILITY COVENANTS IN THIS AGREEMENT.
OWNER FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE
TRANSFER PRICE THE PRIMARY OBJECTIVE OF AGENCY AND THIS AGREEMENT IS
TO PROVIDE HOUSING TO ELIGIBLE PERSONS AND FAMILIES AT AN AFFORDABLE
HOUSING COST.
Agency Option to Purchase. Owner hereby grants to Agency an option to purchase the
Property at an Affordable Housing Cost or to cause the purchase of the Property by a third
party who is a Qualified Purchaser at an Affordable Housing Cost, on the terms set forth
below ("Agency Option"). In the event Owner is unable to sell the Property to a Qualified
Purchaser pursuant to the terms set forth in Section 5.1, Owner may request that Agency
exercise the Agency Option to purchase the Property by delivering to Agency, by certified
mail, a copy of this Agreement and a written request for Agency to exercise the Agency
Option (the "Option Request Notice"). The Option Request Notice shall (i) be dated and
signed by the Owner, (ii) contain the address of the property, and (iii) contain the following
statement: THE PURPOSE OF THIS OPTION REQUEST NOTICE IS TO REQUEST
AGENCY EXERCISE ITS OPTION TO PURCHASE THE PROPERTY. PURSUANT TO
THE TERMS OF THE REGULATORY AGREEMENT AND DECLARATION OF
COVENANTS AND RESTRICTIONS, AGENCY HAS 60 DAYS TO NOTIFY OWNER OF
ITS ELECTION TO EXERCISE THE AGENCY OPTION TO PURCHASE THE PROPERTY.
IF THE AGENCY DOES NOT EXERCISE THE OPTION, THE PROPERTY WILL BE
RELEASED FROM THE AFFORDABILITY RESTRICTIONS IN THE AGREEMENT. Should
the property be released from the affordability restrictions under the terms of this Section
5.2, the sale shall constitute a Prohibited Transfer under Section 4 above and Owner shall
repay the Agency Loan or portion thereof in accordance with Section 8.
In no event shall Owner deliver the Option Request Notice to Agency until Owner
has, for a period of ninety (90) days following the date the Property is placed on the market
for a Proposed Sale pursuant to Section 5.1, diligently marketed the Property and exercised
best efforts to sell the Property to an Qualified Purchaser, as reasonably determined by
Agency. Agency shall have no obligation to exercise the Agency Option. In the event
Agency elects to exercise the Agency Option, Agency shall exercise the Agency Option by
delivering written notice to Owner within forty-five (45) days of Agency's receipt of the
Option Request Notice. In the event Agency exercises the Agency Option and either
purchases the Property or arranges the purchase by a Qualified Purchaser, an escrow shall
be established to close within ninety (90) days after delivery of Agency's notice of exercise
of the Agency Option.
In the event Agency fails to agree in writing to exercise the Agency Option, Owner
may sell the Property at an unrestricted sales price to a purchaser who does not qualify as a
Qualified Purchaser. The transfer of the property pursuant to the preceding sentence
constitutes a Prohibited Transfer for purposes of accelerating the Agency Loan and
triggering the Shared Appreciation Amount pursuant to Section 7 of this Agreement, but
shall not constitute a default under this Agreement.
Agency Loan. Agency shall loan to Owner the Agency Loan subject to the conditions and
restrictions set forth herein and those set forth in the Promissory Note, Agency Deed of
Trust, and the Buyer Disclosure Statement. Owner shall execute, as maker, and deliver to
Agency the Promissory Note in favor of Agency, as holder, in the principal amount of the
Agency Loan (the "Note Amount"). Owner shall also execute and deliver to Agency the
Agency Deed of Trust and the Buyer Disclosure Statement in the form as distributed to
Owner prior to receiving the Agency Loan. The Agency Loan shall be used only for the
purchase of the Property.
Events of Acceleration. The Agency Loan, or balance thereof, shall become due and
immediately payable in accordance with Section 8 of this Agreement, upon the occurrence
of any one of the following events of acceleration ("Event of Acceleration"): (i) a Prohibited
Transfer; (ii) the refinancing of the lien to which the Agency Deed of Trust is subordinate
("First Lien") for an amount which would provide a total encumbrance which exceeds the
maximum amount permitted under the Housing Program; (iii) such time if or when Owner is
no longer an occupant of the Property pursuant to Section 10 of this Agreement; or (iv)
Owner is in default of any other obligation under this Agreement, the Note, or the Agency
Deed of Trust.
Note Repayment and Shared Equity Appreciation.
Note Repayment Amount. The entire Agency Loan shall be due and payable at the end of
the Affordability Period, or upon the occurrence of an Event of Acceleration pursuant to
Section 7, whichever is earlier. When the Agency Loan becomes due and payable for any
reason, Owner shall pay to Agency the entire Note Amount, plus simple interest for the
entire Note Amount at the rate of three percent (3%) per annum commencing on the date of
the Promissory Note ("Note Date"). If the Agency Loan becomes due because of an Event
of Acceleration, then in addition to the principal and interest due to Agency, and regardless
of when the Event of Acceleration occurs, Owner shall pay to Agency an early termination
charge equal to ten percent (10%) of the entire Note Amount.
Shared Equity Appreciation. In the event of a Prohibited Transfer during the Affordability
Period, in addition to repayment of the balance of the Note Amount, Agency shall receive a
share of the sales proceeds that exceed the value of the Property at the time of the Agency
Loan, in order to recover funds for other low and moderate-income housing pursuant to
state law. The Agency's share of the increase in equity shall be determined based on the
length of time the Property has been occupied by an Eligible Person or Family prior to the
Prohibited Transfer, pursuant to the table below. The Agency's share of the equity increase
will be lowered in the event the Prohibited Transfer is the result of divorce or death.
Year of Prohibited Percent of Equity Increase
Transfer After Retained by Owner
Loan
Years Other Divorce Death
0 - 15 0% 0% 0%
16 - 18 2% 6% 9%
19 - 21 5% 9% 12%
22 - 24 9% 13% 16%
25 - 27 13% 17% 20%
Year of Prohibited Percent of Equity Increase
Transfer After Retained by Owner
Loan
28 - 30 17% 21% 24%
31 - 33 23% 27% 30%
34 - 36 29% 33% 36%
37 - 39 40% 44% 47%
40 - 42 69% 73% 76%
43 - 45 100% 100% 100%
As an example only: • Value of Property at time of loan = $200,000
• Amount of Agency Loan = $50,000
• Value of Property at time of Prohibited Transfer during
Year 20 = $250,000
• Increase in equity = $50,000
• Repayment of Agency Loan = $50,000 plus interest
• Amount of Equity Increase shared with Agency = (95% X
$50,000) _ $47,500
• Amount of Equity Increase kept by Owner = (5% X $50,000)
_ $2,500
Maintenance of Property. Owner shall maintain the buildings, landscaping and yard areas
on the Property, as follows:
No improperly maintained landscaping shall be visible from public rights-of-
way, including:
no lawns with grasses in excess of six (6) inches in height;
no untrimmed hedges;
no trees, shrubbery, lawns, and other plant life dying from lack of
water or other necessary maintenance;
no trees and shrubbery grown uncontrolled without proper pruning;
no vegetation so overgrown as to be likely to harbor rats or vermin;
and
no dead, decayed, or diseased trees, weeds, and other vegetation.
No yard areas shall be left un-maintained, including:
r,r;<
no broken or discarded furniture, appliances, and other household
equipment stored in yard areas for periods exceeding one (1)
week;
no packing boxes, lumber, trash, dirt, and other debris stored in yards
for periods exceeding one (1) week in areas visible from public
property or neighboring properties;
no unscreened trash cans, bins, or containers stored for longer than
reasonably required for removal by the City's waste haulers in
areas visible from public property or neighboring properties;
and
no vehicles parked or stored in areas other than approved parking
areas.
No inoperable vehicles stored where visible from public property or
neighboring properties.
No buildings may be left in an un-maintained condition, including:
no violation of state or federal law, Uniform Codes, or City ordinances,
rules or regulations;
no condition that constitutes an unsightly appearance that detracts
from the aesthetics or property value of the subject property or
constitutes a private or public nuisance;
no broken windows or chipped, cracked or peeling paint; and
no conditions constituting hazards and/or inviting trespassers or illegal
activity.
If such buildings, landscaping or yard areas are not so maintained, and such
conditions are not corrected as soon as possible but in no event longer than thirty (30) days
after notice thereof from Agency or the City of Palm Springs (the "City"), then either Agency
or the City may perform the necessary maintenance and Owner shall pay such costs as are
reasonably incurred for such maintenance.
Not by way of limitation of the foregoing, Owner shall maintain the improvements
and landscaping on the Property in a manner consistent with community standards which
will uphold the value of the Property, in accordance with the Palm Springs Municipal Code.
Occupancy Standards. The Property shall be used as the principal residence of Owner
and Owner's family and for no other purpose. Owner shall not enter into an agreement for
the rental or lease of the Property. Agency may grant a temporary waiver of the above
requirements for good cause, in Agency's sole and absolute discretion. The maximum
occupancy of the Property shall not exceed the maximum occupancy allowed by the stricter
of applicable state law or the Palm Springs Municipal Code. Owner shall, upon demand by
Agency, submit to Agency an affidavit of occupancy verifying Owner's compliance with this
Section 10. Said affidavit may be required by Agency on an annual basis.
First Lien; Covenants Do Not Impair First Lien. The provisions of this Agreement and
the Agency Deed of Trust shall be subordinate to the First Lien on the Property held by the
Lender and shall not impair the rights of Lender, or Lender's assignee or successor in
interest, to exercise its remedies under the First Lien in the event of default under the First
Lien by Owner. Such remedies under the First Lien include the right of foreclosure or
acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or
acceptance of a deed in lieu of foreclosure, this Agreement shall be forever terminated and
shall have no further effect as to the Property or any transferee thereafter; provided,
however, if the holder of the First Lien acquires title to the Property pursuant to a deed or
assignment in lieu of foreclosure, this Agreement shall automatically terminate upon such
acquisition of title, provided that (i) Agency has been given written notice of a default under
the First Lien, and (ii) Agency shall not have cured the default under such First Lien within
the 30-day period provided in such notice sent to Agency.
Agency shall cause a Request for Notice, in the form attached to the DDA as
Attachment No. 10, to be recorded on the Property subsequent to the recordation of the
First Lien deed of trust or mortgage requesting a statutory notice of default as set forth in
the California Civil Code Section 2924b.
Defaults. Failure or delay by either party to perform any term or provision of this
Agreement which is not cured within thirty (30) days after receipt of notice from the other
party constitutes a default under this Agreement; provided, however, if such default is of the
nature requiring more than thirty (30) days to cure, the defaulting party shall avoid default
hereunder by commencing to cure within such thirty (30) day period, and thereafter
diligently pursuing such cure to completion. The party who so fails or delays must
immediately commence to cure, correct or remedy such failure or delay, and shall complete
such cure, correction or remedy with diligence. The injured party shall give written notice of
default to the party in default, specifying the default complained of by the injured party.
Except as required to protect against further damages, the injured party may not institute
proceedings against the party in default until thirty (30) days after giving such notice. Failure
or delay in giving such notice shall not constitute a waiver of any default, nor shall it change
the time of default
Indemnification. Owner shall defend, indemnify and hold harmless Agency and the City of
Palm Springs and their respective officers, officials, agents, employees, representatives,
and volunteers from and against any loss, liability, claim, or judgment relating in any manner
to the Property or this Agreement.
Insurance. Owner shall maintain, during the Affordability Period, an all-risk property
insurance policy insuring the Property in an amount equal to the full replacement value of
the structures on the Property, in a form, content and with companies approved by Agency.
The policy shall name Agency as loss payee and shall contain a statement of obligation on
behalf of the carrier to notify Agency of any material change, cancellation or termination of
coverage at least thirty (30) days in advance of the effective date of such material change,
cancellation or termination. Owner shall transmit a copy of the certificate of insurance and
loss payee endorsement to Agency within thirty (30) days of the effective date of this
0`_ `
Agreement, and Owner shall annually transmit to Agency a copy of the certificate of
insurance and a loss payee endorsement, signed by an authorized agent of the insurance
carrier setting forth the general provisions of coverage. The copy of the certificate of
insurance and loss payee endorsement shall be transmitted to Agency at the address set
forth in Section 16.5.
Nondiscrimination. Owner covenants by and for itself, its successors 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 on account of race, color, religion, sex,
marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, nor shall Owner itself or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property.
Owner, its successors and assigns, shall refrain from restricting the rental, sale or
lease of the Property on the basis of race, color, religion, sex, marital status, national origin
or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to
substantially the following nondiscrimination or non-segregation 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 on account of race, color, religion, sex, 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 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 with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessee 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:
"There shall be no discrimination against or segregation of any person
or group of persons on account of race, color, religion, sex, marital status, ancestry
or national origin 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 discrimination or segregation with reference to 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 on .account of race, color, religion, sex, marital status,
ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy,
r 1`11
- v
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 with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessee or
vendees of the premises."
Notwithstanding the foregoing, Owner acknowledges and agrees that during the
Affordability Period, Owner shall occupy the Property as Owner's principal residence and
shall not rent or lease the Property.
Miscellaneous.
Attorneys' Fees and Costs. If any action is brought to enforce the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and
costs.
Controlling Agreement. Owner covenants that Owner has not executed,
and will not execute any other agreement with provisions contradictory to or in opposition to
the provisions hereof, and that in any event, Owner understands and agrees that this
Agreement shall control the rights and obligations between the parties.
Severability. If any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, then such provision or provisions shall be deemed severable from the remaining
provisions contained in this Agreement, and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision(s) had never been contained herein.
Time. Time is of the essence of this entire Agreement. Whenever under the
terms of this Agreement the time for performance falls on a day which is not a business day,
such time for performance shall be on the next day that is a business day.
Notices. All notices required to be delivered under this Agreement to the
other party must be in writing and shall be effective (i) when personally delivered by the
other party or messenger or courier thereof; (ii) three (3) business days after deposit in the
United States mail, registered or certified; or (iii) one (1) business day after deposit before
the daily deadline time with a reputable overnight courier or service; in each case postage
fully prepaid and addressed to the respective parties as set forth below or to such other
address and to such other persons as the parties may hereafter designate by written notice
to the other party hereto :
If to Agency: Palm Springs Community Redevelopment Agency
Attention: Executive Director
3200 E Tahquitz Canyon Way
P.O. Box 2753
Palm Springs, CA 92263-2753
If to Owner: At the address set forth in Recital A of this
Agreement.
Captions and Pronouns. The captions and headings of the various
Sections of this Agreement are for convenience only, and are not to be construed as
confining or limiting in any way the scope or intent of the provisions hereof. Whenever the
context requires or permits, the singular shall include the plural, the plural shall include the
singular, and masculine, feminine, and neuter shall be freely interchangeable.
Running of Benefits and Burdens. All conditions, covenants, and
restrictions contained in this Agreement shall be covenants running with the land, and shall,
in any event, and without regard to technical classification or designation, legal or
otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in
favor of, and enforceable by, Agency and its successors and assigns, against Owner, its
successors and assigns, to or of the Property conveyed herein or any portion thereof or any
interest therein, and any party in possession or occupancy of said Property or portion
thereof.
In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that Agency shall be deemed a beneficiary of the agreements and
covenants provided hereinabove both for and in its own right and also for the purposes of
protecting the interests of the community. All covenants without regard to technical
classification or designation shall be binding for the benefit of Agency and such covenants
shall run in favor of Agency for the entire period during which such covenants shall be in
force and effect, without regard to whether Agency is or remains an owner of any land or
interest therein to which such covenants relate. Agency shall have the right, in the event of
any breach of any such agreement or covenant, to exercise all the rights and remedies, and
to maintain any action at law or suit in equity or other proper proceedings to enforce the
curing of such breach of agreement or covenant.
Construction. The rule of strict construction does not apply to this
Agreement. This Agreement shall be given a reasonable construction so that the intention
of the parties, to prevent any Prohibited Transfer or any use of the Property in violation of
this Agreement, is carried out.
Obligations Secured by Agency Deed of Trust. The payment and
performance of all obligations of Owner under this Agreement are secured by the Agency
Deed of Trust.
Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be deemed an original
and all of which, when taken together, shall constitute one and the same instrument.
Recordation; Effective Date. This Agreement shall be recorded and shall
become effective upon the transfer of fee title to the Property to Owner.
Waiver. No delay or omission by Agency in exercising any right or power
accruing upon the compliance or failure of performance by Owner hereto under the
provisions of this Note shall impair any such right or power or be construed to be a'waiver
thereof. A waiver by Agency of a breach or Event of Acceleration or of any failure of
performance by Owner of any of the covenants, conditions or agreements hereof to be
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PALM SPRINGS COMMUNITY
REDEVELOPMENT AGENCY,
a public body, corporate and politic
By:
Chairman
"AGENCY"
Attest:
Assistant Secretary
(Agency's and Owner's Signature must be
acknowledged by a Notary Public)
"OWNER"
State of California) CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUALS
County of ) ❑
CORPORATE
El
On before me. OFFICER(S)
personally appeared ❑ PARTNERS
❑ ATTORNEY-IN-FACT
personally known to me or r proved to me on the basis of ❑ TRUSTEE(S)
satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me ❑ SUBSCRIBING WITNESS
that he/she/they executed the same in his/her/their authorized ❑ GUARDIAN/CONSERVATOR
capacity(ies), and that by his/her/their signature(s) on the ❑
instrument the person(s), or the entity upon behalf of which the OTHER
person(s) acted, executed the instrument.
WITNESS my hand and official seal. (SEAL) SIGNER IS REPRESENTING:
(Name of Person(s)or Entities)
Signature:
Print Name Commission
Expires
State of California) CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUALS
County of ) ❑
CORPORATE
On before me, OFFICER(S) _
personally appeared ❑ PARTNERS
❑ ATTORNEY-IN-FACT
personally known to me or r proved to me on the basis of ❑ TRUSTEE(S)
satisfactory evidence to be the person(s) whose names) isJare
subscribed to the within instrument and acknowledged to me ❑ SUBSCRIBING WITNESS
that he/she/they executed the same in his/her/their authorized ❑ GUARDIAN/CONSERVATOR
capacity(ies), and that by his/her/their signature(s) on the ❑
instrument the person(s), or the entity upon behalf of which the OTHER
person(s) acted, executed the instrument.
WITNESS my hand and official seal. (SEAL)
SIGNER IS REPRESENTING:
Signature: (Name of Person(s) or Entities)
AGENCY/DEVELOPER PROMISSORY NOTE
$22,000.00 Palm Springs, California
FOR VALUE RECEIVED, The HIGHLANDS PALM SPRINGS VENTURE, a Nevada
limited liability company ("Maker'), promises to pay the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic
("Holder") at 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262, or at such
other address as Holder may direct from time to time in writing, the sum of Twenty-Two
Thousand Dollars ($22,000.00) (the "Note Amount"), together with interest thereon at the
rate set forth herein. All sums payable hereunder shall be payable in lawful money of the
United States of America. This Agency/Developer Promissory Note ("Agency Note") is
made in connection with the provision by the Holder of funds equal to the Agency Note
pursuant to that certain Disposition and Development Agreement by and among Maker and
Holder, dated as of 2005 (the "Agreement').
1. Interest Rate.
No interest shall accrue so long as the property is improved with a residence
and sold to a Qualified Purchaser pursuant to the Agreement within one year of the transfer
of the Parcel. In the event said transfer does not occur within one year, then interest shall
accrue from the date of transfer at the rate of five (5) percent per annum.
2. Repayment.
The principal amount of the Note Amount, plus all interest then accrued upon
the Note Amount, shall be immediately due and payable upon (i) any default of the
Agreement which is not cured within the time set forth in the Agreement (ii) on the transfer
of the Property to a Qualified Purchaser and, if not sooner paid in full, (iii) on January 1,
2007.
3. Prepayment of Agency Note Amount.
Maker may prepay to Holder the full Note Amount, together with all accrued
and unpaid interest thereon at the rate set forth in Section 1 hereof, at any time prior to the
due date of the Note Amount without penalty.
4. Application of Payments.
Each payment hereunder shall be credited first to interest then accrued and
the remainder, if any, to principal. Interest shall cease to accrue upon principal so credited.
5. Security.
This Agency Note is secured by a deed of trust by and between Makers, as
trustor and Holder, as beneficiary (the "Deed of Trust" Attachment No. — to the
Agreement).
6. Holder Mav Assiqn.
Holder may, at its option, assign its right to receive payment under this
Agency Note without necessity of obtaining the consent of the Maker.
7. Maker Assiqnment Prohibited.
In no event shall Maker assign or transfer any portion of this Agency Note
without the prior express written consent of the Holder, which consent may be given or
withheld in the Holder's sole discretion.
8. Attorneys' Fees and Costs.
In the event that any action is instituted with respect to this Agency Note, the
prevailing party promises to pay such sums as a court may fix for court costs and
reasonable attorneys' fees. Holder's right to such fees shall not be limited to or by its
representation by staff counsel, and such representation shall be valued at customary and
reasonable rates for private sector legal services.
9. Non-Waiver.
Failure or delay in giving any notice required hereunder shall not constitute a
waiver of any default or late payment, nor shall it change the time for any default or
payment.
10, Successors Bound.
This Agency Note shall be binding upon the parties hereto and their
respective heirs, successors and assigns.
11. Terms.
Any terms not separately defined herein shall have the same meanings as set
forth in the Agreement.
12. Legal Interest Rate.
No provision of this Agency Note or any instrument securing payment hereof
or otherwise relating to the debt evidenced hereby shall require the payment or permit the
collection of interest in excess of the maximum permitted by applicable law. If any excess
of interest in such respect is herein or in such other instrument provided for, or shall be
adjudicated to be so provided for herein or in any such instrument, the provisions of this
paragraph shall govern, in neither Maker or any endorsers of this Note, nor their respective
heirs, personal representatives, successors or assigns shall be obligated to pay the amount
of such interest to the extent it is in excess of the amount permitted by applicable law.
13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i)
the liability of Maker shall be limited to its interest in the Site and any rents, issues, and
profits arising from the Site and, in addition, with respect to any obligation to hold and apply
insurance proceeds, proceeds of condemnation or other monies hereunder, any such
monies received by it to the extent not so applied in accordance with the terms of this Note;
(ii) no other assets of Maker shall be affected by or subject to being applied to the
satisfaction of any liability which Maker may have to Holder or to another person by reason
of this Note; and (iii) any judgment, order, decree or other award in favor of Holder shall be
collectible only out of, or enforceable in accordance with, the terms of this Note by
termination or other extinguishment of Maker's interest in the Site. Notwithstanding the
foregoing, it is expressly understood and agreed that the aforesaid limitation on liability shall
in no way restrict or abridge Maker's continued personal liability for: (A) fraud or willful or
grossly negligent misrepresentation made by Maker in connection with this Note or any of
the Agency Agreements; (6) misapplication of (a) proceeds of insurance and condemnation
or (b) rent received by Maker under rental agreements entered into for any portion of the
Site after default of the Note; (C) the retention by Maker of all advance rentals and security
deposits of tenants not refunded to or forfeited by such tenants; or (D) the indemnification
undertakings of Maker under the Agency Agreements.
14. General Partner Removal. The withdrawal, removal, and/or replacement of a
general partner of the Partnership shall not constitute a default under any of the Agreement
or this Agency Note, and any such actions shall not accelerate the maturity of the Note
amount, provided that any required substitute general partner is reasonably acceptable to
Holder and is selected within ninety (90) days of the effective date of the withdrawal,
removal, and/or replacement.
15. Monetary Default. If a monetary event of default occurs under the terms of
the Agreement or the Agency Note, prior to exercising any remedies thereunder, Holder
shall give Maker and any of the general or noticed limited partners of the Partnership, listed
below, simultaneous written notice of such default. Maker shall have a period of seven (7)
days after such notice is given within which to cure the default prior to exercise of remedies
by Holder.
16. Non-Monetary Default. If a non-monetary event of default occurs under the
terms of any of the Agreement, prior to exercising any remedies thereunder, Holder shall
give Maker and any general or limited partners of the Partnership, listed below,
simultaneous written notice of such default. If Maker fails to take corrective action or to cure
the default within the initial thirty (30) day cure period, Holder shall give Maker and any
general or limited partners of the Partnership listed in the Agreement written notice thereof,
whereupon the limited partner(s) may remove and replace the general partner with a
substitute general partner, reasonably acceptable to Holder, who shall effect a cure within a
reasonable time thereafter, as determined by Holder, in accordance with the foregoing
provisions. In no event shall Holder be precluded from exercising remedies if its security
becomes or is about to become materially jeopardized by any failure to cure a default or the
default is not cured within the period of time specified in the Agreement.
17. Purchase Riqhts. The transfer of Maker's interest pursuant to terms provided
in the Agreement in Section 303 shall not constitute a default nor accelerate the maturity of
this Agency Note.
18. Loan Assumption. The Project is sold subject to low-income housing use
restrictions as contained in an existing regulatory agreement or other recorded covenant,
any requisite consent of Holder to said sale, and to the assumption without penalty of this
Agency Note obligations by the purchaser and the release of Maker from such obligations,
shall not be unreasonably withheld, provided that Holder reserves the right to (i) impose
reasonable conditions to assumption as a condition to its consent, and (ii) approve in its
sole discretion any designee of the project sponsor's purchase rights.
The Highlands Palm Springs Venture
a Nevada limited liability company
BY:
Date Name:
Title:
"MAKER"
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,
a public body, corporate and politic
Date Chairman
ATTEST:
Agency Secretary
r
tZSCrOWNO.
Loan No.
WHEN RECORDED MAIL TO;
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
3200 E.Tahquitz Canyon Way
Palm Springs, California 92262
Attention: Executive Director
EXEMPT FROM RECORDING F E PER G�V CODE'610
DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED HERETO
CONTAINING TERMS INCLUDING SECURITY AGREEMENT AND FIXTURE FILING
NOTE: RIDER ATTACHED TO THIS DEED OF TRUST CONTAINING TERMS INCLUDING SECURITY AGREEMENT AND
FIXTURE FILING.
This DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED HERETO("Deed of Trust"), is made
, between THE HIGHLANDS PALM SPRINGS VENTURE, a Nevada limited liability company, herein called TRUSTOR,whose
address Is , FIRST AMERICAN TITLE INSURANCE COMPANY, herein called
TRUSTEE,for the benefit of the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body,
corporate and politic, herein called BENEFICIARY.
WITNESSETH:That Trustor grants to Trustee in trust,with power of sale,Trustor's estate, dated on or about the date hereof, in that
property in the City of Palm Springs, County of Riverside, State of California, described as:
SEE EXHIBIT"A"ATTACHED HERETO [APPEARS FOLLOWING RIDER]
together with the rents, issues and profits thereof, subject, however,to the right, power and authority hereinafter given to and conferred
upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing (1)payment of the sum of$22,000.00,
with Interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of
Beneficiary, and extensions or renewals thereof; (2)the performance of each agreement of Trustor incorporated by reference or
contained herein; and (3)payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or its successors
or assigns,when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the Property above described,Trustor expressly makes each and all of
the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A,
and it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in
Orange County August 17, 1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office
of the county recorder of the county where said property is located, noted below opposite the name of such county, namely:
COUNTY BOOK PAGE COUNTY BOOK FAG COUNTY BOOK PAG COUNT BOOK PAGE
E E Y
Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 38 187
Alpine 3 130-31 Lake 437 110 Plumas 166 1307 Siskiyou 506 762
Amador 133 438 Lassen 192 367 Riverside 3778 347 Solano 1287 621
Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2067 427
Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislau 1970 56
s
Colusa 323 391 Mann 1849 122 San Bernardino 6213 768 Sutter 655 585
Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183
Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 Trinity 108 595
El Dorado 704 635 Merced 1660 753 San Luis 1311 137 Tulare 2530 108
Obispo
Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumn ;177 160
e
Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237
Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693
Inyo 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964, Page 149774 G(l�C -11
shall inure to and bind the parties hereto,with respect to the property above described. Said agreements, terms and provisions
contained in said subdivisions A and 6 (identical in all counties, and printed on pages 3 and 4 hereof)are by the within reference
thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at length herein, and
Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge therefore does not exceed the
maximum allowed by law.
The undersigned Trustor,requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at his address
hereinbefore set forth.
SEE RIDER ATTACHED TO THIS DEED OF TRUST
Signature of Trustor:
THE HIGHLANDS PALM SPRINGS VENTURE,
a Nevada limited liability company
By: _
[ACKNOWLEDGMENT FORMS AT END OF RIDER]
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing Deed of
Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust,Trustor agrees:
1) To keep said property in good condition and repair,not to remove or demolish any building thereon;to complete or restore promptly and in
a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor
performed and materials furnished therefore, to comply with all laws affecting said property or requiring any alterations or improvements to be made
thereon, not to commit or permit waste thereof;not to commit,suffer or permit any act upon said property in violation of law; to cultivate,irrigate,fertilize,
fumigate, prune and do all other acts which from the character or use Of said property may be reasonably necessary, the specific enumerations herein
not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected
under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may
determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release
shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee;
and to pay all costs and expenses,including cost of evidence of title and attorney's fees in a reasonable sum,in any such action or proceeding in which
Beneficiary or Trustee may appear,and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay:at least ten(10)days before delinquency all taxes and assessments affecting said property,including assessments on appurtenant
water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior
hereto;all costs,fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided,then Beneficiary of Trustee, but without obligation so to do and
without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same is such manner and to
such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such
purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay,
purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in
exercising any such powers,pay necessary expenses,employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee,with interest from the date of expenditure at the
amount allowed by law in effect at the date hereof,and to pay for any statement provided for by law in effect at the date hereof regarding the obligation
secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded
B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and
shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt
payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time,without liability therefore and without notice, upon written request of Beneficiary and presentation of
this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby,
Trustee may:reconvey any part of said property;consent to the making of any map or plat thereof;join in granting any easement thereon, or join in any
extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said
note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee
shall reconvey,without warranty,the property 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."
5) That as additional security,Trustor hereby gives to and confers upon Beneficiary the right, power and authority,during the continuance of
these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become
due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or be a receiver to be appointed by a
court, and without regard to the adequacy of any security for the indebtedness hereby secured,enter upon and take possession of said property or any
part thereof, in his own name sue for or otherwise collect such rents,issues,and profits,including those past due and unpaid,and apply the same,less
costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as
Beneficiary may determine. The entering upon and taking possession of said property, the collecting of such rents, issues and profits and the
application thereof as aforesaid,shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder,
Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for
sale and of written notice of default and of election to cause to be sold said property,which notice Trustee shall cause to be filed for record. Beneficiary
also shall deposit with Trustee this Deed,said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been
given as then required by law,Trustee,without demand on Trustor, shall sell said property at the time and place fixed by it in said 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. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale,
and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall
deliver to such purchaser its deed conveying the property so sold,but without any covenant or warranty,express or implied. The recitals in such deed of
any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,Trustee,or Beneficiary as hereinafter defined,
may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee
shall apply the proceeds of sale to payment of:all sums expended under the terms hereof, not then repaid,with accrued interest at the amount allowed
by law in effect at the date hereof;all other sums then secured hereby;and the remainder, if any,to the person or persons legally entitled thereto.
7) Beneficiary,or any successor in ownership of any indebtedness secured hereby,may from time to time,by instrument in writing,substitute
a successor or successors to any Trustee named herein or acting hereunder,which instrument,executed by the Beneficiary and duly acknowledged and
recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of proper substitution of such
successor Trustee or Trustees,who shall, without conveyance from the Trustee predecessor,succeed to all its title,estate, rights, powers and duties
f 27)3
Said instrument must contain the name of the original Truster,Trustee and Beneficiary hereunder,the book and page where this Deed is recorded and
the name and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Beneficiary shall mean the owner and holder, including pledges,of the note secured hereby,whether or not named
as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular
number includes the plural.
9) That Trustee accepts this Trust when this Deed,duly executed and acknowledged,is made a public record as provided by law. Trustee is
not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Truster, Beneficiary or
Trustee shall be a party unless brought by Trustee.
(D IFS,:l
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO , TRUSTEE;
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust. Said note
or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby requested and
directed,on payment to you of any sums owing to you under the terms of said Deed of Trust,to cancel said note or notes above mentioned,an all other
evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey, without
warranty,to the parties designated by the terms of said Deed of Trust,all the estate now held by you under the same.
Dated _
Please mail Deed of Trust,
Note and Reoonveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee
for cancellation before reconveyance will be made.
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RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
THIS RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Rider") is
executed this day of , 2004, by THE HIGHLANDS PALM SPRINGS
VENTURE, a Nevada limited liability company, herein "Trustor," in favor of the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public
body, corporate and politic, herein the "Beneficiary,") the same parties to that certain form
Deed of Trust With Assignment of Rents, of even date hereto, to which this Rider is
attached. This Rider is made a part of and is incorporated into said Deed of Trust. This
Rider shall supersede any conflicting term or provision of the form Deed of Trust to which it
is attached.
Reference is made to the following agreements and documents: (i) Agency Note by
and between Trustor and Beneficiary, dated on or about the date set forth above, the
repayment of which by Trustor is secured by this Deed of Trust (the "Agency Developer
Promissory Note") and (i!) Disposition and Development Agreement by and between
Trustor, and Beneficiary, dated 2005, providing for Trustor's
development of the Property.
The parties hereto agree:
Error! Bookmark not defined.. Property. The estate subject to this Deed of
Trust is Trustor's fee estate in the real property legally described in the Deed of Trust (the
"Property"). In addition, Trustor grants to beneficiary a security interest in all of Trustor's
rights, title, and interest in and to the following:
(a) All present and future inventory and equipment, as those terms are
defined in the California Commercial Code, and all other present and
future personal property of any kind or nature whatsoever, now or
hereafter located at, upon or about the Property or used or to be used
in connection with or relating or arising with respect to the Property
and/or the use thereof or any improvements thereto, including without
limitation all present and future furniture, furnishings, fixtures, goods,
tools, machinery, plumbing and plumbing material and supplies,
concrete, lumber, hardware, electrical wiring and electrical material
and supplies, heating and air conditioning material and supplies,
roofing material and supplies, window material and supplies, doors,
paint, drywall, insulation, cabinets, ceramic material and supplies,
flooring, carpeting, appliances, fencing, landscaping and all other
materials, supplies and property of every kind and nature.
(b) All present and future accounts, general intangibles, chattel paper,
contract rights, deposit accounts, instruments and documents as those
terms are defined in the California Commercial Code, now or hereafter
relating or arising with respect to the Property and/or the use th reof
or any improvements thereto, including without limitation: (i) all rights
to the payment of money, including escrow proceeds arising out of the
sale or other disposition of all or any portion of the Property; (ii) all
architectural, engineering, design and other plans, specifications and
drawings relating to the development of the Property and/or any
construction thereon; (iii) all use permits, occupancy permits,
construction and building permits, and all other permits and approvals
required by any governmental or quasi-governmental authority in
connection with the development, construction, use, occupancy or
operation of the Property; (iv) any and all agreements relating to the
development, construction, use, occupancy and/or operation of the
Property between Trustor and any contractor, subcontractor, project
manager or supervisor, architect, engineer, laborer or supplier of
materials; (v) all lease, rental or occupancy agreements and payments
received thereunder; (vi) all names under which the Property is now or
hereafter known and all rights to carry on business under any such
names or any variant thereof; (vii) all trademarks relating to the
Property and/or the development, construction, use, occupancy or
operation thereof; (viii) all goodwill relating to the Property and/or the
development, construction, use, occupancy or operation thereof; (ix)
all insurance proceeds and condemnation awards arising out of or
incidental to the ownership, development, construction, use,
occupancy or operation of the Property; (x) all reserves, deferred
payments, deposits, refunds, cost savings, bonds, insurance policies
and payments of any kind relating to the Property; (xi) all loan
commitments issued to Trustor in connection with any sale or
financing of the Property; (xii) all water stock, if any, relating to any
Property and all shares of stock or other evidence of ownership of any
part of or interest in any Property that is owned by Trustor in common
with others; and (xiii) all supplements, modifications and amendments
to the foregoing.
(c) All fixtures located upon or within the Property or now or hereafter
attached to, installed in, or used or intended for use in connection with
the Property, including without limitation any and all partitions,
generators, screens, awnings, boilers, furnaces, pipes, plumbing,
elevators, cleaning, call and sprinkler systems, fire extinguishing
apparatus and equipment, water tanks, heating ventilating, air
conditioning and air cooling equipment, and gas and electric
machinery and equipment.
(d) All present and future accessories, additions, attachments,
replacements and substitutions of or to any or all of the foregoing.
(e) All cash and noncash proceeds and products of any and all of the
foregoing, including without limitation all monies, deposit accounts,
insurance proceeds and other tangible or intangible property received
upon a sale or other disposition of any of the foregoing.
Error! Bookmark not defined.. Obliqations Secured. Trustor makes this grant
and assignment for the purpose of securing the following obligations ("Secured
Obligations"):
(a) Payment to Beneficiary of all indebtedness at any time owing under
the terms of the Agency Note;
(b) Payment and performance of all obligations of Trustor under this Deed
of Trust, the Disposition and Development Agreement, and the
Agreement Containing Covenants;
(c) Payment and performance of all future advances and other obligations
of Trustor or any other person, firm, or entity with the approval of
Trustor, may agree to pay and/or perform (whether as principal, surety
or guarantor) for the benefit of Beneficiary, when the obligation is
evidenced by a writing which recites that it is secured by this Deed of
Trust; and
(d) All modifications, extensions and renewals of any of the obligations
secured hereby, however evidenced.
Error! Bookmark not defined.. Obliqations. The term "obligations" is used
herein in its broadest and most comprehensive sense and shall be deemed to include,
without limitation, all interest and charges, prepayment charges, late charges and fees at
any time accruing or assessed on any of the Secured Obligations,
Error! Bookmark not defined.. Incorporation. All terms of the Agency Note and
the Secured Obligations are incorporated herein by this reference. All persons who may
have or acquire an interest in the Property shall be deemed to have notice of the terms of all
of the foregoing documents.
Error! Bookmark not defined.. Mortqaqee-in-Possession. Neither the
assignment of rents set forth in the Deed of Trust nor the exercise by Beneficiary of any of
its rights or remedies hereunder shall be deemed to make Beneficiary a "mortgagee-in-
possession" or otherwise liable in any manner with respect to the Property, unless
Beneficiary, in person or by agent, assumes actual possession thereof. Nor shall
appointment of a receiver for the Property by any court at the request of Beneficiary or by
agreement with Trustor, or the entering into possession of the Property by such receiver, be
deemed to make Beneficiary a "mortgagee-in-possession" or otherwise liable in any manner
with respect to the Property.
Error! Bookmark not defined.. No Cure. In the event Beneficiary collects and
receives any rents under the Deed of Trust upon any default hereof, such collection or
receipt shall in no way constitute a curing of the default.
Error! Bookmark not defined.. Opportunity to Cure. Trustor's failure or delay to
perform any term or provision of this Deed of Trust constitutes a default under this Deed of
Trust; however, Trustor shall not be deemed to be in default if (i) Trustor cures, corrects, or
remedies such default within thirty (30) days after receipt of a notice specifying such failure
or delay, or (ii) for such defaults that cannot reasonably be cured, corrected, or,remedied
within thirty (30) days, if Trustor commences to cure, correct, or remedy such failure or
delay within thirty (30) days after receipt of a written notice specifying such failure or delay,
and diligently prosecutes such cure, correction or remedy to completion.
Beneficiary shall give written notice of default to Trustor, specifying the default
complained of by Trustor. Copies of any notice of default given to Trustor shall also be
delivered to any permitted lender and the limited partner of Trustor, if they have requested
in writing to receive such notice. Beneficiary may not institute proceedings against Trustor
until thirty (30) days after giving such notice or such longer period of time as may be
provided herein. In no event shall Beneficiary be precluded from exercising remedies if its
security becomes or is about to become materially jeopardized by any failure to cure a
default or the default is not cured within sixty (60) days after the first notice of default is
given.
Except as otherwise expressly provided in this Deed of Trust, any failure or delay in
giving such notice or in asserting any of its rights and remedies as to any default shall not
constitute a waiver of any default, nor shall it change the time of default, nor shall it deprive
either party of its rights to institute and maintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or remedies.
In the event of any inconsistency in the terms of this Rider and the provisions set
forth in the standard deed of trust recorded in the Recorder's Office of the County of
Riverside, the terms of this Rider shall control.
Error! Bookmark not defined.. Possession Upon Default. Subject to Section 7
above, upon the occurrence of a default, and after delivery of notice and the expiration of all
applicable cure periods, Beneficiary may, at its option, without any action on its part being
required and without in any way waiving such default, take possession of the Property and
have, hold, manage, lease and operate the same, on such terms and for such period of time
as Beneficiary may deem proper, and may collect and receive all rents and profits, with full
power to make, from time to time, all alterations, renovations, repairs or replacements
thereto as may seem proper to Beneficiary, and to apply such rents and profits to the
payment of (a) the cost of all such alterations, renovations, repairs and replacements, and
all costs and expenses incident to taking and retaining possession of the Property, and the
management and operation thereof, and keeping the same properly insured; (b) all taxes,
charges, claims, assessments, and any other liens which may be prior in lien or payment of
the Note, and premiums for insurance, with interest on all such items; and (c) the
indebtedness secured hereby, together with all costs and attorney's fees, in such order or
priority as to any of such items as Beneficiary in its sole discretion may determine, any
statute, law, custom or use to the contrary notwithstanding. Any amounts received by
Trustor or its agents in the performance of any acts prohibited by the terms of this
assignment, including, but not limited to, any amounts received in connection with any
cancellation, modification or amendment of any lease prohibited by the terms of this
assignment and any rents and profits received by Trustor after the occurrence of a default
shall be held by Trustor as trustee for Beneficiary and all such amounts shall be accounted
for to Beneficiary and shall not be commingled with other funds of the Trustor. Any person
receiving any portion of such trust funds shall receive the same in trust for Beneficiary as if
such person had actual or constructive notice that such funds were impressed with a trust in
accordance therewith.
Error! Bookmark not defined.. Receiver. In addition to any and all other
remedies of Beneficiary set forth under this Deed of Trust or permitted at law or in equity, if
a default shall have occurred, Beneficiary, to the extent permitted by law and without regard
to the value, adequacy or occupancy of the security for the Agency Note and other sums
secured hereby, shall be entitled as a matter of right if it so elects to the appointment of a
receiver to enter upon and take possession of the Property and to collect all rents and
profits and apply the same as the court may direct, and such receiver may be appointed by
any court of competent jurisdiction by ex parte application and without notice, notice of
hearing being hereby expressly waived. The expenses, including receiver's fees, attorneys'
fees, costs and agent's compensation, incurred pursuant to the power herein contained
shall be secured by this Deed of Trust.
Error! Bookmark not defined.. SecuritV Aqreement. This Deed of Trust also
constitutes a Security Agreement with respect to all personal property in which Beneficiary
is granted a security interest hereunder, and Beneficiary shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code as enacted in California
(the "California Uniform Commercial Code') as well as all other rights and remedies
available at law or in equity. Trustor hereby agrees to execute and deliver on demand and
hereby irrevocably constitutes and appoints Beneficiary the attorney-in-fact of Trustor, to
execute, deliver and, if appropriate, to file with the appropriate filing officer or office such
security agreements, financing statements, continuation statements or other instruments as
Beneficiary may request or require in order to impose, perfect or continue the perfection of,
the lien or security interest created hereby. Trustor and Beneficiary agree that the filing of a
financing statement in the record normally having to do with personal property shall never
be construed as in any way derogating from or impairing the lien of this Deed of Trust and
the intention of Trustor and Beneficiary that everything used in connection with the
operation or occupancy of the Property is and at all times and for all purposes and in all
proceedings, both legal and equitable, shall be regarded as real property or goods which
are or are to become fixtures, irrespective of whether (i) any such item is physically
attached to the buildings and improvements on the Property; (ii) serial numbers are used for
the better identification of certain equipment items capable of being filed by the Beneficiary;
or (iii) any such item is referred to or reflected in any such financing statement so filed at
any time. Such mention in the financing statements is declared to be for the protection of
the Beneficiary in the event any court or judge shall at any time hold that notice of
Beneficiary's priority of interest must be filed in the California Commercial Code records to
be effective against a particular class of persons, including, but not limited to, the federal
government and any subdivision or entity of the federal government. Trustor covenants and
agrees to reimburse Beneficiary for any costs incurred in filing such financing statement and
any continuation statements.
Upon the occurrence of default hereunder, and after delivery of notice and the
expiration of all applicable cure periods, Beneficiary shall have the right to cause any of the
Property which is personal property and subject to the security interest of Beneficiary
hereunder to be sold at any one or more public or private sales as permitted by applicable
law, and Beneficiary shall further have all other rights and remedies, whether at law, in
equity, or by statute, as are available to secured creditors under applicable law, specifically
including without limitation the right to proceed as to both the real property and the personal
property contained within the Property as permitted by Uniform Commercial Code Section
9501(4), including conducting a unified sale thereof. Any such disposition may be
conducted by an employee or agent of Beneficiary or Trustee. Any person, including both
Trustee and Beneficiary, shall be eligible to purchase any part or all of such property at any
such disposition.
CIO,
This Deed of Trust constitutes a fixture filing under Sections 9313 and 9402(6) of the
California Uniform Commercial Code, as amended or recodified from time to time.
Error! Bookmark not defined.. Notices, Demands, and Communications.
Formal notices, demands, and communications between Trustor and Beneficiary shall be
given either by (i) personal service, (ii) delivery by reputable document delivery service such
as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing
in the United States mail, certified mail, postage prepaid, return receipt requested,
addressed to:
To Beneficiary: Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Attn: Executive Director
With a copy to: WOODRUFF, SPRADLIN & SMART
701 South Parker St., Ste, 8000
Orange, CA 92868-4760
To Trustor: THE HIGHLANDS PALM SPRINGS
VENTURE,
a Nevada limited liability company,
Attn:
Notices personally delivered or delivered by document delivery service shall be
deemed effective upon receipt. Notices mailed shall be deemed effective on the second
business day following deposit in the United States mail. Such written notices, demands,
and communications shall be sent in the same manner to such other addresses as either
party may from time to time designate by mail.
12. Casualty, Condemnation, Etc. In the event of any fire or other casualty to the
Project or eminent domain proceedings resulting in condemnation of the Project or any part
thereof, Borrower shall have the right to rebuild the Project, and to use all available
insurance or condemnation proceeds therefore, provided that (a) such proceeds are
sufficient to keep the Loan in balance and rebuild the Project in a manner that provides
adequate security to Holder for repayment of the Loan or if such proceeds are insufficient
then Borrower shall have funded any deficiency, (b) Holder shall have the right to approve
plans and specifications for any major rebuilding and the right to approve (i) the construction
budget, (ii) plans and specifications for any major rebuilding, including any change orders,
and (iii) disbursements under a construction escrow or similar arrangement, and (c) no
material default then exists under the Loan Documents. If the casualty or condemnation
affects only part of the Project and total rebuilding is infeasible, then proceeds may be used
0.1 :�
IN WITNESS WHEREOF, Trustor has executed this Rider on the date of Trustor's
acknowledgment hereinbelow, to be effective for all purposes as of the day and year first
set forth above.
TRUSTOR:
THE HIGHLANDS PALM SPRINGSVENTURE, a
Nevada limited liability company
By:
�,11133
AGENCY/PURCHASER PROMISSORY NOTE
(Home Purchase Loan)
$ Palm Springs, California
, 20_
Property Address: Palm Springs,
California 91706
FOR VALUE RECEIVED, the undersigned,
, (`Borrower"), promise to pay to the Palm
Springs Redevelopment Agency, a public body, corporate and politic ("Agency"),
Dollars ("Note Amount') at 3200 E. Tahquitz Canyon Way Palm
Springs, Ca 92263, or such other place as Agency may designate from time to time, in
lawful money of the United States of America. This Note is secured by a Deed of Trust
("Agency Deed of Trust').
Loan Agreement. This Promissory Note is made and delivered pursuant to and in
implementation of the Regulatory Agreement and Declaration of Covenants and
Restrictions entered into by and between Agency and Borrower dated
(the "Affordable Housing Agreement'), a copy of which is on file as a public record with
Agency and is incorporated herein by reference. Borrower acknowledges that but for the
execution of this Promissory Note, Agency would not have entered into the Affordable
Housing Agreement or made the loan contemplated therein. All capitalized terms which
are not defined herein shall have the meaning given in the Affordable Housing
Agreement.
Interest Rate. The Note Amount shall bear simple interest at the rate of three
percent (3%) per annum.
Time of Payment. Repayment of the Note Amount shall be made upon the
expiration of the Affordability Period set forth in the Affordable Housing Agreement, unless
and except upon the occurrence of an Event of Acceleration as described in Section 7 of
the Affordable Housing Agreement.
Note Repayment Amount. The entire Agency Loan shall be due and payable at
the end of the Affordability Period, or upon the occurrence of an Event of Acceleration
pursuant to Section 7 of the Affordable Housing Agreement, whichever is earlier. Borrower
shall pay to Agency the entire Note Amount, plus simple interest for the entire Note Amount
at the rate of [three percent (3%)] per annum commencing on the Note Date. If the Agency
Loan becomes due because of an Event of Acceleration, then in addition to the principal
and interest due to Agency, and regardless of when the Event of Acceleration occurs,
Borrower shall pay to Agency an early termination charge equal to ten percent (10%) of the
entire Note Amount.
Security For Note. This Promissory Note shall be secured by the Agency Deed of
Trust, executed by Borrower, as Trustor, in favor of Agency, as Trustee.
Joint And Several. The undersigned, if more than one, shall be jointly and
severally liable hereunder.
Attorneys' Fees And Costs. If any default is made hereunder, Borrower shall pay
reasonable attorney fees, costs, and expenses incurred by Agency in connection with any
such default or any other action or other proceeding brought to enforce any of the
provisions of this Promissory Note.
Borrower Assignment. In no event shall Borrower assign or transfer any portion of
this Promissory Note without the prior express written consent of Agency, which consent
shall be given by Agency only in the event that Agency determines that the assignee or
transferee is an Eligible Person or Family, that the assignee's or transferee's monthly
housing payments are at an Affordable Housing Cost, and that the assignee or transferee
has expressly assumed this Promissory Note and the Affordable Housing Agreement by
execution of a written assignment document to be provided by the Agency. This section
shall not affect or diminish Agency's right to assign all or any portion of its rights to the
proceeds of this Note hereunder.
Time. Time is of the essence herein.
Amendments. This Promissory Note may not be modified or amended except by
an instrument in writing expressing such intention executed by the parties sought to be
bound thereby, which writing must be firmly attached to this Promissory Note so as to
become a permanent part thereof.
Severability. The covenants of this Promissory Note are severable. Invalidation of
any covenant or any part thereof by law, judgment, or court order shall not affect any other
covenant.
Borrower's Waivers. Borrower waives any rights to require the Agency to
(a) demand payment of amounts due (known as "presentment"); (b) give notice that
amounts due have not been paid (known as "notice of dishonor"); and (c) obtain an official
certification of nonpayment (known as a "protest"),
Notices. Any notice that must be given to Borrower under this Promissory Note will
be given by delivering it or by mailing it by certified mail addressed to Borrower at the
Property Address above or such other address as Borrower shall direct from time to time in
writing. Any notice that must be given to the Agency under this Promissory Note will be
given by mailing it certified mail to the Agency at the address stated in the preamble to this
Promissory Note or such other address as Agency may direct from time to time in writing.
`f
Successors. The covenants and agreements contained in this Promissory Note
shall bind, and the rights hereunder shall inure to, the respective successors and assigns of
Borrower and Agency.
Waiver. No delay or omission by Agency in exercising any right or power accruing
upon the compliance or failure of performance by Borrower hereto under the provisions of
this Note shall impair any such right or power or be construed to be a waiver thereof. A
waiver by Agency of a breach, Event of Acceleration, or any other of any failure of
performance by Borrower of any of the covenants, conditions or agreements hereof to be
performed by Borrower shall not be construed as a waiver of any succeeding breach of the
same or other covenants, agreements, restrictions or conditions hereof.
IN WITNESS WHEREOF, Borrower has executed this Promissory Note.
"BORROWER"
DATED: BY:
PRINTED NAME:
DATED: BY:
PRINTED NAME:
AGENCY PURCHASER
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(Single-Family Residence)
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Palm Springs Redevelopment Agency
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
Attention: Executive Director
Exempt from payment of recording fees pursuant to Government Code§6103.
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS ('Deed of Trust") is made as of the_day of
20_, by and between , ("Trustor"), whose address is
Palm Springs, California 91706,
('Trustee"), whose address is
California and the Palm Springs Redevelopment
Agency, a public body corporate and politic ("Beneficiary'), whose address is 3200 E. Tahquitz Canyon
Way Palm Springs, Ca 92263.
W ITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Palm
Springs, County of Riverside, State of California, described as set forth on Exhibit"A" attached hereto and
hereby incorporated herein by reference (the 'Property') together with rents, issues and profits thereof,
subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to
collect and apply such rents, issues and profits for the purpose of securing (1) payment of the sum of
Dollars ($ ), with
interest thereon according to the terms of a promissory note or notes of even date herewith made to
Trustor, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each
agreement of Trustor incorporated by reference or contained herein; and (3) payment of additional sums
and interest thereon which may hereafter be loaned to Trustor, or his or her successors or assigns, when
evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.
THIS DEED OF TRUST IS HEREBY MODIFIED/SUPPLEMENTED BY THE TERMS OF THAT
CERTAIN RIDER TO DEED OF TRUST WHICH IS ATTACHED TO THIS DEED OF TRUST AND
HEREBY INCORPORATED BY REFERENCE.
To protect the security of this Deed of Trust, and with respect to the property above described, Trustor
expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by
each and all of the terms and provisions set forth in subdivision a, and it is mutually agreed that each and
all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange
County August 17, 1964, and in all other counties August 18, 1964, in the book and at the page of Official
Records in the office of the county recorder of the county where said property is located, noted below
opposite the name of such county, namely:
CrG'
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1286 555 Kings 858 713 Placer 1028 379 Sierra 38 187
Alpine 3 130-31 Lake 437 110 Plumas 166 1307 Slsayou 506 762
Amador 133 438 Lassen 192 367 Riverside 3778 347 Boland 1287 621
Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2067 427
Calavems 185 338 Made. 911 136 San Benito 300 405 Slandaus 1970 56
Calusa 323 391 Mann 1849 122 San Bernardino 6213 768 Sutter 655 585
Contra Costa 4584 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183
Del Norte 101 549 Mendocmo 667 99 San Joaquin 2855 283 Trinity 108 595
El Carbide 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108
Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 160
Glenn 469 75 Mona 69 302 Santa Barbara 2065 881 Ventura 2607 237
Humboldt 801 83 Monterey 357 239 Santa Clara 6625 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 396 693
Inyo 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 69D Orange 7162 18 San Diego SERIES 5 Book 1964,Page 149774
shall inure to and bind the parties hereto, with respect to the property above described. said agreements,
terms and provisions contained in said subdivision A and B (identical in all counties, and printed on pages
3 and 4 hereof) are by the within reference thereto, incorporated herein and made a part of this Deed of
Trust for all purposes as fully as if set forth at length herein, and Beneficiary may charge for a statement
regarding the obligation secured hereby, provided the charge therefore does not exceed the maximum
allowed by law.
Signature of Trustor
By:
Printed Name
By:
Printed Name
State of California) CAPACITY CLAIMED BY SIGNER
INDIVIDUALS
County of ) CORPORATE
OFFICER(S)
On before me, _
personally appeared PARTNERS
ATTORNEY-IN-FACT
personally known to me or proved to me on the basis of TRUSTEE(S)
satisfactory evidence to be the person(s) whose name(s) is/are SUBSCRIBING WITNESS
subscribed to the within instrument and acknowledged to me GUARDIAN/CONSERVATOR
that he/she/they executed the same in his/her/their authorized OTHER
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.
WITNESS my hand and official seal. (SEAL) SIGNER IS REPRESENTING:
(Name of Person(s) or Entities)
Signature:
Print Name Commission Expires
State of California) CAPACITY CLAIMED BY SIGNER
INDIVIDUALS
County of ) CORPORATE
OFFICER(S)_
On before me, _
personally appeared PARTNERS
ATTORNEY-IN-FACT
personally known to me or proved to me on the basis of TRUSTEE(S)
satisfactory evidence to be the person(s) whose name(s) is/are SUBSCRIBING WITNESS
subscribed to the within instrument and acknowledged to me GUARDIAN/CONSERVATOR
that he/she/they executed the same in his/her/their authorized OTHER
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.
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated
in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at
length therein.
A. To protect the security of this Deed of Trust,Truster agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to
complete or restore promptly and in a good and workmanlike manner any building which may be constructed, damaged or
destroyed thereon and to pay when due all claims for labor performed and materials furnished therefore, to comply with all
laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste
thereof; not to commit, suffer or permit any act upon said property in violation of law;to cultivate, irrigate, fertilize,fumigate,
prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific
enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to
Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any
indebtedness secured hereby and in such order as Beneficiary may determine, or at the option of Beneficiary the entire
amount so collected or any part thereof may be released to Truster. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in
a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by
Beneficiary to foreclose this Deed
4) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including
assessments on appurtenant water stock;when due, all encumbrances, charges and liens,with interest, on said property or
any part thereof,which appear to be prior or superior hereto;all costs,fees and expenses of this Trust.
Should Truster fail to make any payment or to do any act as herein provided, then Beneficiary of Trustee, but
without obligation so to do and without notice to or demand upon Truster and without releasing Truster from any obligation
hereof, may: make or do the same is such manner and to such extent as either may deem necessary to protect the security
hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any
action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase,
contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior
hereto; and, in exercising any such powers, pay necessary expenses,employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee,with interest from the
date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by
law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to
exceed the maximum allowed by law at the time when said statement is demanded.
B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part
thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the
same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right
either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefore and without notice, upon written request of
Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability of any
person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the
making of any map or plat thereof; join in granting any easement thereon, or join in any extension agreement or any
agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon
surrender of this Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole
discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property 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:'
5) That as additional security,Truster hereby gives to and confers upon Beneficiary the right, power and authority,
during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Truster the
right, prior to any default by Truster in payment of any indebtedness secured hereby or in the performance of any agreement
hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default,
Beneficiary may at any time without notice, either in person, by agent, or be a receiver to be appointed by a court, and
without regard to the adequacy of any security for the indebtedness hereby secured,enter upon and take possession of said
property or any part thereof, in his own name sue for or otherwise collect such rents, issues, and profits, including those past
due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's
fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and
taking possession of said property, the collecting of such rents, issues and profits and the application thereof as aforesaid,
shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Truster in payment of any indebtedness secured hereby or in the performance of any
agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to
Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be
:y i7
„.lr'�1
sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this
Deed,said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and
notice of sale having been given as then required by law,Trustee,without demand on Truster, shall sell said property at the
time and place fixed by it in said 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.
Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and
from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including Truster,Trustee,or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in
connection with sale,Trustee shall apply the proceeds of sale to payment of;all sums expended under the terms hereof, not
then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured
hereby,and the remainder,if any,to the person or persons legally entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by
instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which
instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or
counties where said property is situated shall be conclusive proof of proper substitution of such successor Trustee or
Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and
duties. Said instrument must contain the name of the original Truster, Trustee and Beneficiary hereunder, the book and
page where this Deed is recorded and the name and address or the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including
pledgees, of the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so
requires,the masculine gender includes the feminine and/or neuter,and the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed,duly executed and acknowledged, is made a public record as
provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any
action or proceeding in which Truster,Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
TO TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the
foregoing Deed of Trust. Said note or notes,together with all other indebtedness secured by said Deed of Trust, have been
fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the
terms of said Deed of Trust,to cancel said note or notes above mentioned; an all other evidences of indebtedness secured
by said Deed of Trust delivered to you herewith,together with the said Deed of Trust, and to reconvey,without warranty, to
the parties designated by the terms of said Deed of Trust,all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered
to the Trustee for cancellation before reconveyance will be made.
RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
(Home Purchase Loan)
THIS RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Rider") is
attached to and incorporated by reference to that certain Deed of Trust With Assignment of
Rents, executed by , as "Trustor," naming
, as "Trustee," in favor of PALM SPRINGS COMMUNITY
REDEVELOPMENT AGENCY, a public body, corporate and politic, as "Beneficiary." The
Deed of Trust, as hereby modified/supplemented by this Rider, is hereinafter referred to as
the "Deed of Trust."
The following documents are incorporated herein by reference:
a. The Regulatory Agreement and Declaration of Covenants Running
With Land by and between Trustor as "Owner" and Beneficiary as
"Agency" dated on or about , 200 (the
"Affordable Housing Agreement"), which sets forth terms and
conditions for Beneficiary's loan of the Loan (as defined below) to
Trustor. All terms which are not defined in this Deed of Trust shall
have the meaning given in the Affordable Housing Agreement.
b. The Agency Promissory Note ("Note"), dated on or about
, with Trustor as "Borrower" and Beneficiary as
"Agency" or "Lender," in the principal amount of
Dollars ($ )
("Loan" or "Note Amount"), for which this Deed of Trust is security.
The parties hereto agree:
1. 1. Obligations Secured. Trustor makes this grant and assignment for
the purpose of securing the following obligations:
a. Payment to Beneficiary of the Loan and all indebtedness at any time
owing under the terms of the Note;
b. Payment and performance of all obligations of Trustor under this Deed
of Trust;
C. Payment and performance of all obligations of Trustor under the
Affordable Housing Agreement;
d. Payment and performance of all future advances and other obligations
of Trustor or any other person, firm, or entity with the approval of
Trustor, may agree to pay and/or perform (whether as principal, surety
or guarantor) for the benefit of Beneficiary, when the obligation is
evidenced by a writing which recites that it is secured by this Deed of
Trust; and
r
e. All modifications, extensions and renewals of any of the obligations
secured hereby, however evidenced.
2. 2. No Renting or Leasing. Truster acknowledges and agrees that
Truster shall occupy the Property as Truster's principal residence in accordance with the
Affordable Housing Agreement and shall not rent or lease the Property. Nothing in the
Deed of Trust including the assignment of rents shall be interpreted or construed to permit
the Truster to rent or lease the Property.
3. 3. Mortgagee-in-Possession. Neither the assignment of rents set forth
in the Deed of Trust nor the exercise by Beneficiary of any of its rights or remedies
hereunder shall be deemed to make Beneficiary a "mortgagee-in-possession" or otherwise
liable in any manner with respect to the Property, unless Beneficiary, in person or by agent,
assumes actual possession thereof. Nor shall appointment of a receiver for the Property by
any court at the request of Beneficiary or by agreement with Truster, or the entering into
possession of the Property by such receiver, be deemed to make Beneficiary a "mortgagee-
in-possession" or otherwise liable in any manner with respect to the Property.
4. 4. No Cure. In the event Beneficiary collects and receives any rents
under the Deed of Trust upon any default hereof, such collection or receipt shall in no way
constitute a curing of the default.
5. 5. Beneficiary Option to Purchase. NOTICE IS HEREBY GIVEN
THAT TRUSTOR HAS GRANTED TO BENEFICIARY AN OPTION TO PURCHASE THE
PROPERTY, THE TERMS OF WHICH ARE SET FORTH IN THE AFFORDABLE
HOUSING AGREEMENT.
6. 6. Waiver. No delay or omission by Beneficiary in exercising any right
or power accruing upon the compliance or failure of performance by Truster hereto under
the provisions of this Deed of Trust shall impair any such right or power or be construed to
be a waiver thereof. A waiver by Beneficiary of a breach of, Event of Acceleration, or any
other of any failure of performance by Truster of any of the covenants, conditions or
agreements hereof to be performed by Truster shall not be construed as a waiver of any
succeeding breach of the same or other covenants, agreements, restrictions or conditions
hereof.
IN WITNESS WHEREOF, Trustor has executed this Rider as of the date set forth in
the Deed of Trust's acknowledgment hereinbelow, to be effective for all purposes as of the
day and year first set forth above.
SIGNATURE OF TRUSTOR:
By:
Printed Name:
By:
Printed Name:
State of California) CAPACITY CLAIMED BY SIGNER
INDIVIDUALS
County of ) CORPORATE
OFFICER(S)
On before me, _
personally appeared PARTNERS
ATTORNEY-IN-FACT
personally known to me or proved to me on the basis of TRUSTEE(S)
satisfactory evidence to be the person(s) whose name(s) is/are SUBSCRIBING WITNESS
subscribed to the within instrument and acknowledged to me GUARDIAN/CONSERVATOR
that he/she/they executed the same in his/her/their authorized OTHER
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.
WITNESS my hand and official seal. (SEAL) SIGNER IS REPRESENTING:
(Name of Person(s) or Entities)
Signature:
Print Name Commission Expires
State of California) CAPACITY CLAIMED BY SIGNER
INDIVIDUALS
County of ) CORPORATE
OFFICER(S)
On before me, _
personally appeared PARTNERS
ATTORNEY-IN-FACT
personally known to me or proved to me on the basis of TRUSTEE(S)
satisfactory evidence to be the person(s) whose name(s) is/are SUBSCRIBING WITNESS
subscribed to the within instrument and acknowledged to me GUARDIAN/CONSERVATOR
that he/she/they executed the same in his/her/their authorized OTHER
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.
5
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Palm Springs Redevelopment Agency
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
Attention: Chairman
Exempt from payment of a recording fee pursuant to Government
Code§ 6103.
Request For Notice Under Section 2924b Civil Code
In accordance with California Civil Code Section 2924b, request is hereby made that
a copy of any Notice of Default and a copy of any Notice of Sale under the Deed of Trust
recorded as Instrument No. on ,
200 , in Book , Page Official Records of Riverside County,
California, and affecting the property described in Exhibit "A", executed by
, as Trustor, in
which Palm Springs Community Redevelopment Agency is named as Beneficiary, and
as Trustee, be mailed to: Palm Springs
Community Redevelopment Agency
3200 E.Tahquitz Canyon Way
Palm Springs, CA 92263
Attention: Community Redevelopment Agency
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE
WILL BE SENT ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST.
IF YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED.
State of California) CAPACITY CLAIMED BY SIGNER
INDIVIDUALS
County of ) CORPORATE
OFFICER(S)
On before me, PARTNERS
personally appeared ATTORNEY-IN-FACT
personally known to me or proved to me on the basis of satisfactory TRUSTEE(S)
evidence to be the person(s) whose name(s) is/are subscribed to the SUBSCRIBING WITNESS
within instrument and acknowledged to me that he/she/they executed GUARDIAN/CONSERVATOR
the same in his/her/their authorized capacity(ies), and that by OTHER
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.
SIGNER IS REPRESENTING:
WITNESS my hand and official seal. (SEAL)' (Name of Person(s) or Entities)
Signature:
Print Name Commission Expires
State of California) CAPACITY CLAIMED BY SIGNER
INDIVIDUALS
County of ) CORPORATE
OFFICER(S)
On before me, PARTNERS
personally appeared ATTORNEY-IN-FACT
personally known to me or proved to me on the basis of satisfactory TRUSTEE(S)
evidence to be the person(s) whose name(s) Ware subscribed to the SUBSCRIBING WITNESS
within instrument and acknowledged to me that he/she/they executed GUARDIAN/CONSERVATOR
the same in his/her/their authorized capacity(ies), and that by OTHER
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.
0-'!T)
I. (§100) PURPOSE OF THE AGREEMENT.................... .........................................2
A. (§101) Purpose of the Agreement. ............................................................2
B. (§102) Description of Project.....................................................................2
II. (§200) DEFINITIONS ..............................................................................................2
A. (§201) Agreement. ......................................................................................2
B. (§202) g!y. ..................................................................................................2
C. (§203) Closing.............................................................................................2
D. (§204) Days. ................................................................................................3
E. (§205) Deed. ................................................................................................3
F. (§206) Effective Date. .................................................................................3
G. (§207) Enforced Delay................................................................................3
H. (§208) Escrow. ............................................................................................3
I. (§209) Escrow Agent.............................................. Bookmark not defined.
J. (§211) Lower Income Household...............................................................3
J. (§212) Moderate Income Household. ........................................................3
K. (§213) Agencv/Developer Promissory Note. ............................................4
L. (§ 215 Agencv/Developer Deed of Trust...................................................4
M. (§214) Agencv/Purchaser Promissory Note. ............................................4
N. (§216) Agencv/Purchaser Deed of Trust........................................ ..........4
O. (§218) Proiect..............................................................................................4
P. (§217) Parcel.......................................................... Bookmark not defined.
Q. (§218) Project...............................................................................................4
R. (§219) Purchase Price. ...............................................................................4
Q. (§220) Qualified Purchaser. .......................................................................5
R. (§221) Redevelopment Plan.......................................................................5
S. (§222) Redevelopment Project Area..........................................................5
T. (§223) Requlatory Agreement....................................................................5
U. (§224) Release of Construction Covenants..............................................5
V. (§225) Schedule of Performance. ..............................................................5
W. (§226) Site and Site Map. ...........................................................................6
X. (§227) Title...................................................................................................6
Y. (§228) Title Companv. ................................................................................6
III. (4300) PARTIES TO THE AGREEMENT................................................................6
A. (§301) Agencv. ............................................................................................6
B. (§302) Developer.........................................................................................6
C. (§303) Restrictions on Transfer.................................................................7
IV. (4400) DISPOSITION OF THE SITE .......................................................................9
A. (§40) Convevance of the Site.....................................................................9
B. (§402)Agency Assistance .........................................................................9
1. Purchase Price. ..........................................................................................9
C. (§404) Escrow. ............................................................................................9
D. (§405) Conditions to Close of Escrow. .....................................................9
E. (§406) Convevance of the Site.................................................................11
F. (§407) Title Matters...................................................................................12
G. (§408) Evidence of Financial Capabilitv..................................................13
H. (§409) Condition of Site. ..........................................................................13
I. (§410) Costs of Escrow............................................................................15
J. (§411) Termination of Escrow..................................................................15
K. (§412) Responsibility of Escrow Agent...................................................16
V. (§500) DEVELOPMENT OF THE SITE ..................................................................17
A. (§501) Scope of Development..................................................................17
B. (§5021 fReservedl. ....................................................................................17
C. (§503) Developer Responsibilities During Construction.......................17
D. (§504) Schedule of Performance; Progress Reports. ............................17
E. (§505) Indemnification During Construction. .........................................18
F. (§506) Insurance. ......................................................................................18
G. (§507) Citv and Other Governmental Agencv Permits...........................19
H. (§508) Rights of Access...........................................................................19
I. (§509) Applicable Laws. ...........................................................................20
J. (§510) Nondiscrimination During Construction. ....................................20
K. (§511) Taxes, Assessments, Encumbrances and Liens........................20
L. (§512) Rights of Holders of Approved Security Interests
inSite. .......................................................................................................20
M. (§513) Release of Construction Covenants............................................24
N. (§514) Estoppels.......................................................................................25
Vl. (§600) USES OF THE SITE ..................................................................................25
A. (§601) Uses of the Site. ............................................................................25
B. (§602) Obligation to Refrain from Discrimination. .................................25
C. (§603) Form of Nondiscrimination and Non-seqreqation
Clauses. ....................................................................................................26
D. (§604) Maintenance of Improvements.....................................................26
E. (§605) Effect of Covenants. .....................................................................27
VII. (§700) SPECIAL PROVISIONS ............................................................................27
A. (§701) Sale of Project by Developer..................................:.....................27
VIII. (§800) DEFAULTS, REMEDIES AND TERMINATION .........................................28
A. (§801) Defaults, Right to Cure and Waivers. ................................:.........28
B. (§802) Legal Actions..................................................................................29
C. (§803) Rights and Remedies are Cumulative. ........................................29
D. (§804) Specific Performance....................................................................29
E. (§806) Attorney's Fees. ............................................................................29
IX. (4900) GENERAL PROVISIONS ..........................................................................30
A. (§901) Notices, Demands and Communications Between
theParties.................................................................................................30
B. (§902) Nonliabilitv of City and Agency Officials and
Employees; Conflicts of Interest; Commissions. ..................................31
C. (§903) Enforced Delay: Extension of Times of
Performance. ............................................................................................31
D. (§904) Books and Records.......................................................................32
E. (§905) Assurances to Act in Good Faith.................................................32
F. (§906) Interpretation.................................................................................32
G. (§907) Entire Agreement, Waivers and Amendments............................32
H. (§908) Severabilitv....................................................................................33
I. (§909) Effect of Redevelopment Plan Amendment. ...............................33
J. (§910) Time for Acceptance of Agreement by Agency. .........................33
K. (§911) Execution.......................................................................................33
L. (§ 912) Attachments. .......................................................... .............. ......34
PROJECTCONCEPT........................................................................I.......... ....................I
SITEDESCRIPTION ..........................................................................................................1
DEMOLITION AND CLEARANCE .,.....................................I.............................................1
SITEPREPARATION.........................................................................................................1
PROJECT DESIGN............................................................ Error! Bookmark not defined.
Definitions. The following defined terms have the meanings given below:.......................2
Owner Representations and Warranties. Owner represents and
warrants to Agency that the financial and other information
previously provided to Agency by Owner for the purpose of
qualifying to purchase the Property was true and correct at the time
it was given and remains true and correct as of the date of this
Agreement. Owner acknowledges that Agency is relying upon
Owner's representations that Owner is an Eligible Person or Family,
and Agency would not have entered into this Agreement if Owner
didnot so qualify......................................................................................................4
Affordability Covenants. During the Affordability Period, the Property
shall be owned and occupied by Owner or persons, who at the time
of purchase, are Eligible Persons or Families..........................................................4
Transfer of Property. All Prohibited Transfers (as defined below) shall
constitute Events of Acceleration, causing the Agency Loan to
become due and payable. If the Prohibited Transfer is a result of
an affirmative conveyance of the Property by Owner (i.e., not
arising from Owner's death or operation of law), and the
conveyance is not an Exempt Transfer pursuant to Section 5, the
Prohibited Transfer shall also constitute a default under this
Agreement, entitling Agency to exercise all remedies available at
law or equity. A "Prohibited Transfer" is any Transfer of the
Property that does not constitute a Permitted Transfer. A "Transfer"
is any sale, assignment, or transfer of an interest in the Property,
including, without limitation, a fee simple interest, tenancy in
common, joint tenancy, community property, tenancy by the
entireties, life estate, or other limited estate, leasehold interest or
any rental of the Property, or any interest evidenced by a land
contract, or any mortgage or other encumbrance. ...................................................4
Exempt Transfer; Sale to Qualified Purchaser at Affordable Housing
Cost; Agency Option to Purchase. An "Exempt Transfer" is (i)
the sale of the Property by the Owner to a person who is an Eligible
Person or Family ("Qualified Purchaser") (and that person's status
as a Qualified Purchaser has been verified by Agency pursuant to
this Section 5) provided that the Qualified Purchaser assumes the
Promissory Note, the Agency Deed of Trust, and this Agreement
pursuant to an assignment and assumption agreement approved by
Agency, and the sale price less the balance of the Agency Loan
does not exceed the Affordable Housing Cost for the Qualified
Purchaser, or (ii) the sale of the Property by the Owner to Agency
or a person designated by Agency pursuant to Section 5.2 of this
Agreement. An Exempt Transfer is a Permitted Transfer. ........................... ..........5
Sale by Owner. If Owner desires to sell, exchange, quitclaim or in
any manner dispose of the Property or any part thereof
("Proposed Sale"), Owner shall notify Agency in writing no
later than ten (10) days prior to the date the Property is
placed on the market for a Proposed Sale. Owner shall not
sell or transfer the Property until such time as Agency has
determined (i) the proposed buyer intends to occupy the
Property as its principal residence; (ii) the proposed buyer is
a Qualified Purchaser and eligible under the Housing
a 1'
Guidelines; and (iii) the Proposed Sale is at an Affordable
Housing Cost (excluding the Agency Loan assumed by the
buyer). ..........................................................................................................5
Agency Option to Purchase. Owner hereby grants to Agency an
option to purchase the Property at an Affordable Housing
Cost or to cause the purchase of the Property by a third
party who is a Qualified Purchaser at an Affordable Housing
Cost, on the terms set forth below ("Agency Option"). In the
event Owner is unable to sell the Property to a Qualified
Purchaser pursuant to the terms set forth in Section 5.1,
Owner may request that Agency exercise the Agency Option
to purchase the Property by delivering to Agency, by
certified mail, a copy of this Agreement and a written request
for Agency to exercise the Agency Option (the "Option
Request Notice"). The Option Request Notice shall (i) be
dated and signed by the Owner, (ii) contain the address of
the property, and (iii) contain the following statement: THE
PURPOSE OF THIS OPTION REQUEST NOTICE IS TO
REQUEST AGENCY EXERCISE ITS OPTION TO
PURCHASE THE PROPERTY. PURSUANT TO THE
TERMS OF THE REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS,
AGENCY HAS 60 DAYS TO NOTIFY OWNER OF ITS
ELECTION TO EXERCISE THE AGENCY OPTION TO
PURCHASE THE PROPERTY. IF THE AGENCY DOES
NOT EXERCISE THE OPTION, THE PROPERTY WILL BE
RELEASED FROM THE AFFORDABILITY RESTRICTIONS
IN THE AGREEMENT. Should the property be released
from the affordability restrictions under the terms of this
Section 5.2, the sale shall constitute a Prohibited Transfer
under Section 4 above and Owner shall repay the Agency
Loan or portion thereof in accordance with Section 8...................................6
Agency Loan. Agency shall loan to Owner the Agency Loan subject to
the conditions and restrictions set forth herein and those set forth in
the Promissory Note, Agency Deed ,of Trust, and the Buyer
Disclosure Statement. Owner shall execute, as maker, and deliver
to Agency the Promissory Note in favor of Agency, as holder, in the
principal amount of the Agency Loan (the "Note Amount'). Owner
shall also execute and deliver to Agency the Agency Deed of Trust
and the Buyer Disclosure Statement in the form as distributed to
Owner prior to receiving the Agency Loan. The Agency Loan shall
be used only for the purchase of the Property. ........................................................7
Events of Acceleration. The Agency Loan, or balance thereof, shall
become due and immediately payable in accordance with Section 8
of this Agreement, upon the occurrence of any one of the following
events of acceleration ("Event of Acceleration"): (i) a Prohibited
Transfer; (ii) the refinancing of the lien to which the Agency Deed of
Trust is subordinate ("First Lien") for an amount which would
provide a total encumbrance which exceeds the maximum amount
permitted under the Housing Program; (iii) such time if or when
Owner is no longer an occupant of the Property pursuant to Section
10 of this Agreement; or (iv) Owner is in default of any other
obligation under this Agreement, the Note, or the Agency Deed of
Trust. .......................................................................................................................7
Note Repayment and Shared Equity Appreciation. .......................................................7
Note Repayment Amount. The entire Agency Loan shall be due
and payable at the end of the Affordability Period, or upon
the occurrence of an Event of Acceleration pursuant to
Section 7, whichever is earlier. When the Agency Loan
becomes due and payable for any reason, Owner shall pay
to Agency the entire Note Amount, plus simple interest for
the entire Note Amount at the rate of three percent (3%) per
annum commencing on the date of the Promissory Note
("Note Date"). If the Agency Loan becomes due because of
an Event of Acceleration, then in addition to the principal and
interest due to Agency, and regardless of when the Event of
Acceleration occurs, Owner shall pay to Agency an early
termination charge equal to ten percent (10%) of the entire
NoteAmount. ...............................................................................................7
Shared Equity Appreciation. In the event of a Prohibited Transfer
during the Affordability Period, in addition to repayment of
the balance of the Note Amount, Agency shall receive a
share of the sales proceeds that exceed the value of the
Property at the time of the Agency Loan, in order to recover
funds for other low and moderate-income housing pursuant
to state law. The Agency's share of the increase in equity
shall be determined based on the length of time the Property
has been occupied by an Eligible Person or Family prior to
the Prohibited Transfer, pursuant to the table below. The
Agency's share of the equity increase will be lowered in the
event the Prohibited Transfer is the result of divorce or
death. ...........................................................................................................8
Year of Prohibited Transfer After Loan ....................................................................8
Percent of Equity Increase Retained by Owner.................................... ..................8
Years 8
Other 8
Divorce ...............................................................................................................8
0% 8
16 - 18 ................................................................................................................8
2% 8
6% 8
9% 8
19 - 21 ................................................................................................................8
5% 8
9% 8
12% 8
22 - 24 ................................................................................................................8
9% 8
13% 8
16% 8
25 - 27 ................................................................................................................8
13% 8
17% 8
20% 8
28 - 30 ................................................................................................................9
17% 9
21% 9
24% 9
31 - 33 ................................................................................................................9
23% 9
27% 9
30% 9
34 - 36 ................................................................................................................9
29% 9
33% 9
36% 9
37 - 39 ................................................................................................................9
40% 9
44% 9
47% 9
40 - 42 ................................................................................................................9
69% 9
73% 9
76% 9
43 - 45 ................................................................................................................9
100% 9
100% 9
100% 9
Maintenance of Property. Owner shall maintain the buildings,
landscaping and yard areas on the Property, as follows:.........................................9
No improperly maintained landscaping shall be visible from public
rights-of-way, including:................................................................................9
No yard areas shall be left unmaintained, including:................................ ...............9
No buildings may be left in an unmaintained condition, including: ...........................9
Occupancy Standards. The Property shall be used as the principal
residence of Owner and Owner's family and for no other purpose.
Owner shall not enter into an agreement for the rental or lease of
the Property. Agency may grant a temporary waiver of the above
requirements for good cause, in Agency's sole and absolute
discretion. The maximum occupancy of the Property shall not
exceed the maximum occupancy allowed by the stricter of
applicable state law or the Palm Springs Municipal Code. Owner
shall, upon demand by Agency, submit to Agency an affidavit of
occupancy verifying Owner's compliance with this Section 10. Said
affidavit may be required by Agency on an annual basis. ......................................10
First Lien; Covenants Do Not Impair First Lien. The provisions of this
Agreement and the Agency Deed of Trust shall be subordinate to
the First Lien on the Property held by the Lender and shall not
impair the rights of Lender, or Lender's assignee or successor in
interest, to exercise its remedies under the First Lien in the event of
default under the First Lien by Owner. Such remedies under the
First Lien include the right of foreclosure or acceptance of a deed or
assignment in lieu of foreclosure. After such foreclosure or
acceptance of a deed in lieu of foreclosure, this Agreement shall be
forever terminated and shall have no further effect as to the
Property or any transferee thereafter; provided, however, if the
holder of the First Lien acquires title to the Property pursuant to a
deed or assignment in lieu of foreclosure, this Agreement shall
automatically terminate upon such acquisition of title, provided that
(i) Agency has been given written notice of a default under the First
Lien, and (ii) Agency shall not have cured the default under such
First Lien within the 30-day period provided in such notice sent to
Agency. .................................................................................................................10
Defaults. Failure or delay by either party to perform any term or provision
of this Agreement which is not cured within thirty (30) days after
receipt of notice from the other party constitutes a default under this
Agreement; provided, however, if such default is of the nature
requiring more than thirty (30) days to cure, the defaulting party
shall avoid default hereunder by commencing to cure within such
thirty (30) day period, and thereafter diligently pursuing such cure to
completion. The party who so fails or delays must immediately
commence to cure, correct or remedy such failure or delay, and
shall complete such cure, correction or remedy with diligence. The
injured party shall give written notice of default to the party in
default, specifying the default complained of by the injured party.
Except as required to protect against further damages, the injured
party may not institute proceedings against the party in default until
thirty (30) days after giving such notice. Failure or delay in giving
such notice shall not constitute a waiver of any default, nor shall it
changethe time of default .....................................................................................11
-� mix
Indemnification. Owner shall defend, indemnify and hold harmless
Agency and the City of Palm Springs and their respective officers,
officials, agents, employees, representatives, and volunteers from
and against any loss, liability, claim, or judgment relating in any
manner to the Property or this Agreement............................................................A l
Insurance. Owner shall maintain, during the Affordability Period, an all-
risk property insurance policy insuring the Property in an amount
equal to the full replacement value of the structures on the
Property, in a form, content and with companies approved by
Agency. The policy shall name Agency as loss payee and shall
contain a statement of obligation on behalf of the carrier to notify
Agency of any material change, cancellation or termination of
coverage at least thirty (30) days in advance of the effective date of
such material change, cancellation or termination. Owner shall
transmit a copy of the certificate of insurance and loss payee
endorsement to Agency within thirty (30) days of the effective date
of this Agreement, and Owner shall annually transmit to Agency a
copy of the certificate of insurance and a loss payee endorsement,
signed by an authorized agent of the insurance carrier setting forth
the general provisions of coverage. The copy of the certificate of
insurance and loss payee endorsement shall be transmitted to
Agency at the address set forth in Section 16.5.....................................................11
Nondiscrimination. Owner covenants by and for itself, its successors
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 on account of race, color, religion, sex,
marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, nor shall Owner itself or any person claiming under or
through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the Property. ...................... ......................I I
Miscellaneous................................................................................................—..............12
Attorneys' Fees and Costs. If any action is brought to enforce the
terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees and costs. ....................................................12
Controlling Agreement. Owner covenants that Owner has not
executed, and will not execute any other agreement with
provisions contradictory to or in opposition to the provisions
hereof, and that in any event, Owner understands and
agrees that this Agreement shall control the rights and
obligations between the parties. ..........................................................:......13
Severability. If any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, then such provision or
provisions shall be deemed severable from the remaining
provisions contained in this Agreement, and this Agreement
shall be construed as if such invalid, illegal, or unenforceable
provision(s) had never been contained herein............................................13
Time. Time is of the essence of this entire Agreement. Whenever
under the terms of this Agreement the time for performance
falls on a day which is not a business day, such time for
performance shall be on the next day that is a business day......................13
Notices. All notices required to be delivered under this Agreement
to the other party must be in writing and shall be effective (i)
when personally delivered by the other party or messenger
or courier thereof; (ii) three (3) business days after deposit in
the United States mail, registered or certified; or (iii) one (1)
business day after deposit before the daily deadline time
with a reputable overnight courier or service; in each case
postage fully prepaid and addressed to the respective
parties as set forth below or to such other address and to
such other persons as the parties may hereafter designate
by written notice to the other party hereto :.................................................13
Captions and Pronouns. The captions and headings of the
various Sections of this Agreement are for convenience only,
and are not to be construed as confining or limiting in any
way the scope or intent of the provisions hereof. Whenever
the context requires or permits, the singular shall include the
plural, the plural shall include the singular, and masculine,
feminine, and neuter shall be freely interchangeable..................................13
Running of Benefits and Burdens. All conditions, covenants, and
restrictions contained in this Agreement shall be covenants
running with the land, and shall, in any event, and without
regard to technical classification or designation, legal or
otherwise, be, to the fullest extent permitted by law and
equity, binding for the benefit and in favor of, and
enforceable by, Agency and its successors and assigns,
against Owner, its successors and assigns, to or of the
Property conveyed herein or any portion thereof or any
interest therein, and any party in possession or occupancy of
said Property or portion thereof. .................................................................13
Construction. The rule of strict construction does not apply to this
Agreement. This Agreement shall be given a reasonable
construction so that the intention of the parties, to prevent
C.,•'_, u'y r
any Prohibited Transfer or any use of the Property in
violation of this Agreement, is carried out...................................................14
Obligations Secured by Agency Deed of Trust. The payment
and performance of all obligations of Owner under this
Agreement are secured by the Agency Deed of Trust. ...............................14
Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered
shall be deemed an original and all of which, when taken
together, shall constitute one and the same instrument..............................14
Recordation; Effective Date. This Agreement shall be recorded
and shall become effective upon the transfer of fee title to
the Property to Owner. ...............................................................................14
Waiver. No delay or omission by Agency in exercising any right or
power accruing upon the compliance or failure of
performance by Owner hereto under the provisions of this
Note shall impair any such right or power or be construed to
be a waiver thereof. A waiver by Agency of a breach or
Event of Acceleration or of any failure of performance by
Owner of any of the covenants, conditions or agreements
hereof to be performed by Owner shall not be construed as
a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions hereof...........................14
COMMUNITY REDEVELOPMENT AGENCY/CITY COUNCIL
CITY OF PALM SPRINGS
NOTICE OF JOINT PUBLIC HEARING
DISPOSITION AND DEVELOPMENT AGREEMENT
HIGHLANDS VENTURE, LLC
NOTICE IS HEREBY GIVEN THAT the Community Redevelopment Agency of the City of Palm
Springs, California ("Agency"), and the City Council of the City of Palm Springs, California, will hold a
joint public hearing on May 18, 2005, at approximately 6:00 p.m. or as soon as possible thereafter, in
the City Council Chamber at City Hall, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262,
The project location is in the Desert Highland Gateway area of the City of Palm Springs, CA 92262.
The purpose of this hearing is to consider a Disposition and Development Agreement ("DDA")
between Highlands Venture, LLC and Community Redevelopment Agency of the City of Palm Springs
for four single family infill homes for moderate income households in the Desert Highland Gateway
area of the City of Palm Springs north of Las Vegas Road, Palm Springs, CA, 92262. All of the
homes would be approximately 1,400 square feet. The homes would be located on scattered sites
within the Desert Highland neighborhood. The Agency shall require that the homes be available for
moderate income households, with mortgages available to households at 110% of area median
income. The homes will be subject to affordability restrictions contained in a Regulatory Agreement.
The Agency may provide subsidy to the homeowner to make the homes affordable. Such subsidy
shall be repayable subject to the terms contained in a Promissory Note and a Deed of Trust.
Finally, in order to make the homes affordable and allow the developer to make a standard return on
investment for the construction, the Agency may contribute the Agency-owned land to the project.
The General Partner in the project is Angeles Investment Group and Kemet Management and
Development, a Nevada, LTD. Liability Company, located in Inglewood, CA.
The staff report and other supporting documents regarding this matter are available for public review
at the City Hall between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. Please contact
the City Clerks Department at (760) 323-8204 if you would like to schedule an appointment to review
these documents.
Response to this notice can be made verbally at the Public Hearing and/or in writing before the
hearing. Written comments can be made to the Community Redevelopment Agency of the City of
Palm Springs and City Council by letter (for mail or hand delivery) to:
James Thompson, City Clerk
3200 E. Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263
Any challenge of the proposed project in court may be limited to raising only those issues raised at the
public hearing described in this notice, or in written correspondence delivered to the City Clerk at, or
prior, to the public hearing. (Government Code Section 65009(b)(2)).
An opportunity will be given at said hearing for all interested persons to be heard. Questions regarding
this case may be directed to John S. Raymond, Director of Community & Economic Development
(760) 323-8228.
Si necesita ayuda con esta carta, porfavor Ilame a la Ciudad de Palm Springs y puede hablar con
Nadine Fieger telefono (760) 323-8245.
ES THOMPSON, City erk