HomeMy WebLinkAbout00470C - SANTIAGO SUNRISE VILLAGE MOBILE HOME PARK DDA Santiago Sunrise Village Mobile
Home Park DDA
w AGREEMENT #470C
R1233, 11-19-03
DISPOSITION AND DEVELOPMENT AGREEMENT
Between and Among
THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS,
a public body, corporate and politic
and
SANTIAGO SUNRISE VILLAGE,
a California limited partnership
and
SUNRISE VILLAGE MOBILE HOME PARK
CORPORATION, a California nonprofit corporation
(Sunrise)
I
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is entered
into as of the date executed by the Agency, between and among THE COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate
and politic ("Agency"), SANTIAGO SUNRISE VILLAGE, a California limited partnership
("Owner/Lessee"), and SANTIAGO SUNRISE VILLAGE MOBILE HOME PARK
CORPORATION, a California nonprofit corporation, a subsidiary of the CALIFORNIA
MOBILE HOME PARK CORPORATION ("CMHPC"), a California nonprofit corporation
("Nonprofit'). The parties agree as follows:
I. (§100) PURPOSE OF THE AGREEMENT
A. (§101) Purpose of the Agreement.
This Agreement and the Attachments hereto are intended to effectuate the
Redevelopment Plan for the Community Redevelopment Agency of the City of Palm Springs
Merger Area No. 9-C (the "Redevelopment Project Area") by providing for the disposition of
certain real property designated herein as the "Site" and the operation and maintenance of the
"Project" located in on the Site (as those terms are defined herein). The operation and
maintenance of the Project 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.
This Agreement is intended to set forth a comprehensive plan for the disposition and
operation of the Project on the Site. The Project, as further defined below, will provide mobile
home rental spaces available at rents affordable to very low and lower income households.
II. (§200) DEFINITIONS
The following terms as used in this Agreement shall have the meanings given unless
expressly provided to the contrary:
A. (§201)Affordable Rent.
The term "Affordable Rent' shall have the meaning prescribed for that term in ]Health
and Safety Code Section 50053(b) and the regulations promulgated pursuant to or incorporated
therein, including, without limitation, any applicable regulations promulgated pursuant to Ifealth
and Safety Code Section 50093. In calculating Affordable Rent the cost shall include the
following:
a. All costs for rental or purchase of the mobilehome park space, including
homeowners association fees, special assessments, and required space maintenance.
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it
b. All costs of purchase or lease of the mobilehome coach, including
principal and interest on any mortgage, property taxes, vehicle registration, and other
fees.
C. Insurance on the coach, not including its contents.
d. Utilities.
B. (§202) Agency Financial Assistance.
The term "Agency Financial Assistance" shall have the meaning ascribed in Section
402.3.
C. (§203) Agreement.
The tern "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.
D. (§204) Bond Financing.
The term"Bond Financing" shall mean those certain Multi Family Mortgage Reserve
Bonds (GNMA) collateralized-Santiago Mobile Home Park Project) Series 2003.
E. (§205) Cam.
The term"City" shall mean the City of Palm Springs, a municipal corporation.
F. (§206) Closing.
The term "Closing" or "Closing Date" shall mean the concurrent closing of the Bond
Financing and the Escrow by the Escrow Agent's distributing the funds and documents received
through Escrow to the party entitled thereto as provided herein.
G. (§207) Covenanted Space.
The term"Covenanted Space" shall mean and refer to one of the spaces in the Project
which are counted for purposes of meeting the percentage requirements for occupancy of
Affordable Rent spaces in this Agreement, the Supplemental Regulatory Agreement and the
Declaration of Covenants and Conditions (Attachment No. 7)by a Very Low or Lower Income
Household at an Affordable Rent.
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H. (§208) 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.
I. (§209)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 title to the Site
initially to Owner/lessee followed by Owner/Lessee's grant pursuant to the Grant Deed in the
form of Attachment No. 7 to Nonprofit as Grantee.
J. (§210) 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.
K. (§211) Enforced Delay.
The term "Enforced Delay" shall mean any delay described in Section 803 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 803.
L. (§212) Escrow.
The term "Escrow" shall mean the escrow established pursuant to this Agreement for the
conveyance of title to the Site from Agency to the Owner/Lessee and immediately thereafter to
Nonprofit. Alternatively, the escrow function may be handled as part of the Bond Finance
closing.
M. (§213) Escrow Agent.
The term "Escrow Agent" shall mean Orange Coast Title, located at 640 N. Tustin
Avenue, Suite 106, Santa Ana, California 92705, and empowered hereunder to act as the Escrow
Agent for this transaction. The Escrow Agent contact shall be Marty Clesceri.
N. (§214) Lease Agreement.
The term"Lease" or"Lease Agreement" shall mean that certain Lease Agreement
originally between the City and the Owner/Lessee dated June 29, 1987.
O. (§215) Lower Income Household.
The term "Lower Income Household" shall mean a household whose annual household
income does not exceed eighty percent (80%) of area median income for Riverside County,
adjusted for applicable household size, as computed in accordance with the Community
Redevelopment Law and the regulations promulgated pursuant thereto or incorporated therein,
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including, without limitation, all regulations promulgated pursuant to Health and Safety Code
Section 50093, or any successor statute.
P. (§216) Project.
The term "Project" shall mean the acquisition, assumption of maintenance and
rehabilitation responsibility for the 173 space mobile home improvements existing on the Site
pursuant to this Agreement. The overall Project is more particularly described in the Scope of
Development attached hereto as Attachment No. 4. The Project has 173 spaces for residential
mobile homes including forty-three (43) units (25%) which shall be restricted for rent to Very
Low Income Households and additional forty-one (41) units (24%) which shall be restricted for
rent to Lower Income Households.
Q. (§217) Purchase Price.
The term "Purchase Price" shall mean that amount agreed upon by the parties as the
payment to be made by Nonprofit to the Owner/Lessee for the purchase of the Site and
termination of the Lease from the Agency to the Owner/Lessee, which Purchase Price shall be in
the form of cash available from the Bond Financing together with promissory note (as
determined by Owner/Lessee and Nonprofit in the amount of Four Million One Hundred
Thousand ($4,100,000) or the appraised value, whichever is greater. The Purchase Price shall
also include a Residual Note and Deed of Trust valued at Three Hundred Ninety-Two Thousand
Forty Dollars ($392,040), equal to the residual leasehold value.
R. (§218) Qualified Tenant.
The term "Qualified Tenant' shall mean those households seeking to rent a space that is
counted as one of the Covenanted Spaces who satisfy all of the following requirements:
a. Upon execution of a lease with Nonprofit pursuant to this Agreement,
each member of the household will occupy the Covenanted Space as a principal
residence, and each member intends to thereafter continuously occupy such Covenanted
Space as a principal residence.
b. Upon execution of a lease with Nonprofit pursuant to this Agreement, the
household is a Very Low or Lower Income Household.
C. The household has been selected in accordance with the tenant selection
criteria set forth in the Supplemental Regulatory Agreement.
S. (§219) Redevelopment Plan.
The term "Redevelopment Plan" shall mean the Merged Redevelopment Plan for the
Redevelopment Project Area No. 9-C in the City of Palm Springs, as adopted by Ordinance No. _
of the City Council on . 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 , which is located adjacent to the Redevelopment Project Area, is in
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accordance with and pennissible under the Redevelopment Plan to encourage the retention of
affordable housing. A copy of the Redevelopment Plan is on file in the office of the City Clerk
of the City, located at 3200 East Tahquitz Canyon Way, Palm Springs, California 92662. The
Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully
set forth herein.
T. (§220) Redevelopment Project Area.
The term "Redevelopment Project Area" shall mean the Palm Springs Redevelopment
Project Merger Area No. 9-C, 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.
U. (§221) Supplemental Re2ulatory Agreement.
The term "Supplemental Regulatory Agreement" shall mean that Regulatory Agreement
and Declaration of Covenants attached hereto as Attachment No. 7, running with the land and
providing for the Affordable Rental restrictions, the proper maintenance of common facilities
and improvements and the management and use of the Project.
V. (§222)Residual Deed of Trust.
The term "Residual Deed of Trust" shall refer to that deed of trust and assignment of
rents attached hereto as Attachment No. 9, securing the repayment of the Residual Note.
W. (§223) Residual Note.
The term "Residual Note" shall refer to that residual promissory note attached hereto as
Attachment No. 8, providing for repayment of the Agency Loan in transferring the underlying
fee interest in the Site to the Owner/Lessee and the subsequent transfer to the Nonprofit. .
X. (§224) Schedule of Performance.
The term "Schedule of Performance" shall mean that certain Schedule of Performance
attached hereto as Attachment No. 3.
Y. (§225) Site and Site Map.
The Project is located upon that real property located in the City of Palm Springs,
hereinafter referred to as the "Site". The Site is improved with a 173 space mobile home park
which is to be conveyed to and operated and maintained by Nonprofit pursuant to this
Agreement, as shown in the "Site Map" attached hereto as Attachment No. 1. The Site is legally
described in the "Legal Description" attached hereto as Attachment No. 2.
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Z. (§226) Title.
The term "Title" shall mean the fee title to the Site conveyed first to the Owner/Lessee
(Attachment No. 6A) who shall thereafter convey the fee and the improvements to Nonprofit
pursuant to the Deed in Attachment No. 6B.
AA. (§227) Title Company.
The term "Title Company" shall mean Orange Coast Title, located at 640 N. Tustin Ave.,
Suite 106, Santa Ana, CA 92705, and empowered hereunder to act as the Title Company for this
transaction. The title officer shall be
BB. (§228) Very Low Income Household.
The term "Very Low Income Household" shall mean a household whose annual
household income does not exceed fifty percent (50%) of area median income for Riverside
County, adjusted for applicable household size, as computed in accordance with the Community
Redevelopment Law and the regulations promulgated pursuant thereto or incorporated therein,
including, without limitation, all regulations promulgated pursuant to Health and Safety Code
Section 50093, or any successor statute.
III. (§300) PARTIES TO THE AGREEMENT
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 Section 33000, et seq.). The office of Agency is located at
3200 East Tahquitz Canyon Way, Palm Springs, California 92662. The term "Agency," as used
in this Agreement, includes the Community Redevelopment Agency of the City of Palm Springs
and any assignee of, or successor to, its rights,powers and responsibilities.
B. (§302)Nonprofit.
1. Identification. Nonprofit is Santiago Sunrise Village Mobile Home Park
Corporation, a California nonprofit corporation. The principal office of Nonprofit for the
purposes of this Agreement is located at 1551 No. Tustin Avenue, Suite 910, Santa Ana,
California 92705-8637. Nonprofit warrants and represents to Agency that Nonprofit will be
qualified to do business in good standing under the laws of the State of California and has all
requisite power and authority to carry out Nonprofit's business as now and whenever conducted
and to enter into and perform Nonprofit's obligations under this Agreement.
2. Successors and Assigns. Except as may be expressly provided hereinbelow,
all of the terms, covenants and conditions of this Agreement shall be binding on, and shall inure
to the benefit of, Nonprofit and the permitted successors, assigns and nominees of Nonprofit.
Wherever the term "Nonprofit" is used herein, such term shall include any permitted successors
and assigns of Nonprofit as herein provided.
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3. Qualifications. The qualifications and identity of Nonprofit are of particular
concern to the Agency, and it is because of such qualifications and identity that Agency has
entered into this Agreement with Nonprofit. The Agency has considered the operational
experience and financial capability of Nonprofit and based upon these considerations, the
Agency has imposed those restrictions on transfer set forth in paragraph 304 this Agreement.
C. (§303) Owner/Lessee.
Owner/Lessee is Santiago Sunrise Village, a California limited partnership. The
principal office of Owner/Lessee for purposes of this Agreement is located at
. Owner/Lessee warrants and represents to Agency that it is
qualified to do business in good standing under the laws of the State of California and has the
requisite power and authority to carry out Owner's/Lessee's obligations under this Agreement.
D. (§304) Restrictions on Transfer.
1. Transfer Defined. As used in this section, the term "Transfer" shall include
any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this
Agreement, of the Site, or the improvements thereon. A Transfer shall also include the transfer
to any person or group of persons acting in concert of more than twenty-five percent (25%) of
the present ownership and/or control of Nonprofit in the aggregate, taking all transfers into
account on a cumulative basis, except transfers of such ownership or control interest between
members of the same immediate family, or transfers to a trust, testamentary or otherwise, in
which the beneficiaries are limited to members of the transferor's immediate family. In the event
Nonprofit or its successor is a corporation or trust, such transfer shall refer to the transfer of the
issued and outstanding capital stock of Nonprofit, or of beneficial interests of such trust; in the
event that Nonprofit is a limited or general partnership, such transfer shall refer to the transfer of
more than twenty-five percent (25%) of the limited or general partnership interest; in the event
that Nonprofit is a joint venture, such transfer shall refer to the transfer of more than twenty-five
percent (25%) of the ownership and/or control of any such joint venture partner, taking all
transfers into account on a cumulative basis. It is hereby acknowledged by Nonprofit and
Agency that the Site is being conveyed to the Nonprofit by the Owner/Lessee for the Purchase
Price as defined in Section 217 above. Nonprofit 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 or the Supplemental Regulatory Agreement, as applicable.
j 2. Exceptions. The foregoing prohibition shall not apply to any of the
following:
a. Any mortgage, deed of trust, or other form of conveyance for financing of
improvements or rehabilitation for the Project, but Nonprofit shall notify Agency in
advance of any such mortgage, deed of trust, or other form of conveyance for financing
pertaining to the Site.
b. Any mortgage, deed of trust, or other form of conveyance for restructuring
or refinancing of any amount of indebtedness described in subsection (a) above, provided
that the amount of indebtedness incurred in the restructuring or refinancing does not
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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 constriction,
whether direct or indirect, based upon the estimates of architects and/or contractors.
C. The granting of easements to any appropriate governmental agency or
utility or permits on the Site.
d. 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, farm 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.
C. 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.
IV. (§400) DISPOSITION OF THE SITE
A. (§401) FinancW2 Milestones.
The parties acknowledge that Nonprofit intends to finance the acquisition, rehabilitation
and maintenance costs for the Project with funds from the Bond Financing.
B. (§402) Disposition of the Site.
1. Conveyance of the Site to Owner/Lessee with Immediate Transfer to
Nonprofit. Subject to all the terms and conditions of this Agreement, Agency agrees to convey
the fee to the Site first to the Owner/Lessee in consideration of the termination of the Lease on
the entire Site and for the execution of the Residual Note and Residual Deed of Trust by the
Nonprofit. Owner/Lessee agrees to immediately transfer the Site and the improvements thereon
to Nonprofit in consideration of payment of the Purchase Price.
2. Purpose of Sale. Nonprofit agrees to operate and maintain the Site portion of
the Site with 25% of the units reserved for rental units for persons of Very Low Income
Households and an additional 24% of units for Lower Income Households, as described in the
Scope of Development and the Supplemental Regulatory Agreement. The remainder of the units
shall be rental restricted as originally provided in the Lease Agreement and as set out in the
Supplemental Regulatory Agreement (Attachment#7).
3. Agency's Financial Assistance to Nonprofit.
i
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The Agency Financial Assistance shall consist of the contribution of the fee interest of
the Site valued at Three Hundred Ninety-Two Thousand Forty Dollars ($392,040). The
performance of the covenants pursuant to this Agreement shall be credited towards the payment
of the Residual Note such that the balance shall be reduced annually and secured by the Residual
Deed of Trust (Attachment#9).
C. (§403) 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, the Owner/Lessee,
and the Nonprofit 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 Nonprofit 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 Nonprofit and Agency.
D. (§404) Conditions to Close of Escrow.
1. _Nonprofit's Conditions to Closing. Nonprofit's obligation to acquire the
Site and to close Escrow hereunder, shall, in addition to any other conditions set forth herein in
favor of Nonprofit, be conditional and contingent upon the satisfaction, or waiver by Nonprofit,
of each and all of the following conditions (collectively the "Nonprofit's Conditions to Closing")
within the time provided in the Schedule of Performance:
a. Owner/Lessee acquiring fee title to the Site.
b. Owner/Lessee and Agency terminating that certain Lease Agreement
dated June 29, 1987 by a Memorandum of Lease Termination to be recorded on the Site
in the form of Attachment#10, attached hereto and incorporated by this reference.
C. Title to the Site shall be conveyed in a good condition subject only to
conditions and exceptions recited in the Deed, those exceptions to title approved pursuant
to Section 408, the Residual Note, the Residual Deed of Trust, and the Supplemental
Regulatory Agreement.
d. 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.
e. Nonprofit shall have obtained the Bond Financing which shall have been
fully funded as of the Closing.
f. Agency shall have deposited into escrow the executed Grant Deed to the
Owner/Lessee and Owner/Lessee shall have deposited its Grant Deed to Nonprofit.
it
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g. Nonprofit shall have approved the physical and environmental condition
of the Site in accordance with Section 408 and shall have received the Phase I Site
Assessment.
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 therefor in the
Schedule of Performance, either party may terminate this Agreement by delivering a written in
accordance with Section 410.
2. Agency's Conditions to Closing. 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:
a. Owner/Lessee has executed the Memorandum of Lease Termination
(Attachment#10).
b. Nonprofit shall have obtained the Bond Financing.
C. Nonprofit shall not have made or attempted to make a transfer in violation
of Section 304,provided that Agency shall give notice of any violation of Section 304
and afford Nonprofit the opportunity to cure the violation.
d. Nonprofit shall have deposited into escrow all documents required under
Section 405.
Any waiver of the foregoing conditions must be express and in writing. In the event that
Nonprofit fails to satisfy Agency's foregoing conditions or defaults in the performance of its
obligations hereunder, Agency may terminate this Escrow.
3. Owner/Lessees Conditions to Closine.
a. Nonprofit shall have deposited into escrow cash portion of Purchase Price
and promissory note for the balance of the Purchase Price.
b. Agency shall have submitted Grant Deed to escrow.
4. All Parties' Conditions to Closine. Prior to the Closing Date, Nonprofit,
Agency and Owner/Lessee 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 Nonprofit, Owner/Lessee and
Agency. Prior to the Closing, Nonprofit, Owner/Lessee 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 no party shall be in breach of its obligations hereunder,
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E. (§405) Conveyance of the Site.
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,
subject to existing tenancies and occupants, shall be delivered to Nonprofit concurrently with the
conveyance of title.
2. Escrow Agent to Advise of Costs. On or before the date set in the Schedule
of Performance, the Escrow Agent shall advise the Agency, the Owner/Lessee and the Nonprofit
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 pennit timely Closing.
3. Deposits By Agency Prior to Closing. 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 Grant Deed to Owner/Lessee for the Site; (ii) Memorandum of Lease
Termination; (iii) an estoppel certificate certifying that Nonprofit and Owner/Lessee have
completed all acts, other than as specified, necessary for conveyance, if such be the fact; and (iv)
payment to Escrow Agent of Agency's share of costs as determined by the Escrow Agent
pursuant to Section 409.
4. Deposits by Owner/Lessee Prior to Closing. On or before, but not later than
1:00 p.m. on the date set in the Schedule of Perfonnance, Owner/Lessee shall execute;
acknowledge and deposit into escrow (i) the Grant Deed to Nonprofit for the Site, and (ii)
Memorandum of Lease Termination; and (iii) payment to Escrow Agent of Owner/Lessee's
share of costs as determined by the Escrow Agent pursuant to Section 409.
5. Deposits By Nonprofit Prior to Closing. On or before, but not later than
1:00 p.m. of the date set in the Schedule of Performance for the Bond Closing, Nonprofit shall
execute and acknowledge as may be required and deposit into escrow: (i) the Regulatory
Agreement; (ii) the Residual Note; (iii) the Residual Deed of Trust; (iv) cash or cash equivalent
in the amount of the Purchase Price; and (v) an estoppel certificate certifying that Agency has
completed all acts, other than as specified, necessary to conveyance, if such be the fact; and (vi)
payment to Escrow Agent of Nonprofit's share of costs as determined by the Escrow Agent
pursuant to Section 409.
6. Recordation and Disbursement of Funds. Upon the completion by the
Agency, Owner/Lessee and Nonprofit of the deliveries and actions specified in these 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 required by law, and
thereafter cause to be recorded in the appropriate records of Riverside County, Califoniia, the
Memorandum of Lease Termination, the two Grant Deeds, the Supplemental Regulatory
Agreement, the Residual Deed of Trust, and any other appropriate instruments delivered through
this escrow, if necessary or proper to, and provided that the fee title interest in the Site, can, vest
in Nonprofit in accordance with the terms and provisions herein. Concurrent with recordation,
Escrow Agent shall deliver the cash from the Purchase Price to the Owner/Lessee and the Title
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Policy to Nonprofit insuring title and conforming to the requirements of Section 406. Following
recordation, the Escrow Agent shall deliver copies of said instruments to Nonprofit,
Owner/Lessee and Agency.
F. (§406) Title Matters.
1. Condition of Title. Agency shall convey to Owner/Lessee, who shall in turn
convey immediately to Nonprofit the fee interest in the Site, subject only to: (i) the
Redevelopment Plan, this Agreement, conditions in the Deed, the Residual Deed of Trust, and
the Supplemental Regulatory Agreement; (ii) current taxes, a lien not yet payable; (iii) quasi-
public utility, public alley and public street easements of record approved by Nonprofit, which
approval shall not be unreasonably withheld; and (iv) covenants, conditions and restrictions,
reciprocal easements, and other encumbrances and title exceptions approved by Nonprofit under
this Section. Agency shall convey title to the Owner/Lessee pursuant to the Deed in the form set
forth in Attachment No. 6A hereto and Owner/Lessee shall convey title to the Nonprofit pursuant
to the Deed in the form set forth in Attachment 6B.
2. Exclusion of Oil, Gas, and Hydrocarbons. 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
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.
3. AlZency Not to Encumber Site. Agency hereby warrants to Nonprofit that it
has not and will not, from the time of Nonprofit'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 Nonprofit.
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 Nonprofit including copies of all documents referenced therein. Prior to the date
in the Schedule of Performance, Nonprofit shall deliver to Agency written notice, with a copy to
Escrow Agent, specifying in detail any exception disapproved and the reason therefor. Prior to
the date in the Schedule of Performance, Agency shall deliver written notice to Nonprofit 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 possessory interests.
If Agency so elects or is required to cure the disapproved exceptions, Agency shall do so on or
before the Closing. Thereafter, if escrow fails to timely close because (i) Agency has failed to
cure the disapproved exceptions, or (ii) due to exceptions not previously reported but which arise
due to acts of Agency subsequent to issuance of the preliminary title report, (provisions (i) and
(ii) are referred to herein as "Acts of Agency"), and if Agency cannot cure said defects within the
time provided in Section 410 and Nonprofit elects to terminate the escrow, then Agency shall
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reimburse Nonprofit for its usual acquisition costs in an amount not to exceed
Reimbursement shall be made thirty (30) days after receipt of an invoice with satisfactory
documentation of such expenses. In the event the failure to close is due to the existence of other
conditions of title not approved by Nonprofit which (i) are not the result of Acts of Agency as
defined above, and (ii) are not reasonably acceptable to Nonprofit, then the parties shall negotiate
in good faith to correct the title problem, and shall consider courses of action with the title
company, bonding and indemnities, reimbursement of costs, and other modifications of this
Agreement.
5. Title Policy. At the close of escrow, Escrow Agent shall furnish Nonprofit
with an ALTA Policy of Title Insurance (the "Title Policy") for the Nonprofit's interest, wherein
the Title Company shall insure that title to the Site shall be vested in Nonprofit, containing no
exception to such title which has not been approved or waived by Nonprofit in accordance with
this Section. The Title Policy shall include any available additional title insurance, extended
coverage or endorsements that Nonprofit has reasonably requested. The Agency shall pay only
for that portion of the title insurance premium attributable to the standard coverage, and
Nonprofit shall pay for the premium for said additional title insurance, extended coverage or
special endorsements.
G. (§407) Evidence of Financial Capability.
Within the time set forth in the Schedule of Performance, Nonprofit shall submit to
Agency's Executive Director for approval evidence reasonably satisfactory to the Executive
Director that Nonprofit has the requisite financing commitment to undertake the Bond Financing
necessary for the acquisition of the Site and operation of the Project thereon pursuant to this
Agreement. The Nonprofit shall provide evidence of the proposed bond financing feasibility
with evidence provided by the underwriter and the credit enhancement provider indicating that
the Bond Financing is eligible to obtain the highest investment grade rating (AAA).
H. (§408) Condition of Site.
1. Agency Site Assessment and Remediation. The Agency has investigated
the Site and performed Phase I Site Assessments. Nonprofit, at its sole cost, shall perform any
necessary soil remediation to meet the statutory and regulatory requirements of any
governmental entity of appropriate jurisdiction which are prerequisite to the development and
occupancy of the Site for the Project.
2. Disclaimer of Warranties. Upon the Close of Escrow, Nonprofit 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
geoteclmical condition of the Site, and the existence of any contamination, Hazardous Materials,
vaults, debris, pipelines, abandoned wells 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 them, the City and their employees, agents and representatives. The
foregoing disclaimer includes, without limitation, topography, climate air, water rights, utilities,
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present and future zoning, soil, subsoil, existence of Hazardous Materials or similar substances,
the purpose for which the Site is suited, or drainage. Agency makes no representation or
warranty concerning the compaction of soil upon the Site, nor of the suitability of the soil for
construction.
3. Rit4ht to Enter Site, Indemnification. Nonprofit shall have the right to enter
upon the Site to conduct soils, engineering, or other tests and studies, to perform preliminary
work or Site investigation or for any other purposes to carry out the terms of this Agreement.
Nonprofit shall indemnify, defend and hold Agency and Owner/Lessee 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.
4. Hazardous Materials. Nonprofit understands and agrees that in the event
Nonprofit incurs any loss or liability concerning Hazardous Materials (as hereinafter defined)
and/or oil wells and/or underground storage tanks and/or pipelines whether attributable to events
occurring prior to or following the Closing, then Nonprofit may look to current or prior owners
of the Site, but under no circumstances shall Nonprofit look to Agency or City for any liability or
indemnification regarding Hazardous Materials and/or oil wells and/or underground storage
tanks and/or pipelines. Nonprofit, and each of the entities constituting Nonprofit, if any, from
and after the Closing, hereby waives, releases, remises, acquits and forever discharges Agency,
City, their directors, officers, share-holders, employees, and agents, and their respective heirs,
successors, personal representatives and assigns, of and from any and all Environmental Claims,
Environmental Cleanup Liability and Environmental Compliance Costs, as those terms are
defined below, and from any and all actions, suits, legal or administrative orders or proceedings,
demands, actual damages, punitive damages, loss, costs, liabilities and expenses, which concern
or in any way relate to the physical or environmental conditions of the Site, the existence of any
Hazardous Material thereon, or the release or threatened release of Hazardous Materials
therefrom, whether existing prior to, at or after the Closing. It is the intention of the parties
pursuant to this release that any and all responsibilities and obligations of Agency and City, and
any and all rights, claims, rights of action, causes of action, demands or legal rights of any kind
of Nonprofit, its successors, assigns or any affiliated entity of Nonprofit, against the Agency or
City, arising by virtue of the physical or environmental condition of the Site, the existence of any
Hazardous Materials thereon, or any release or threatened release of Hazardous Material
therefrom, whether existing prior to, at or after the Closing, are by this Release provision
declared null and void and of no present or future force and effect as to the parties; provided,
however, that no parties other than the Indemnified Parties (defined below) shall be deemed third
party beneficiaries of such release. In connection therewith, Nonprofit and each of the
entities constituting Nonprofit, expressly agree to waive any and all rights which said party
may have under Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor."
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NONPROFIT'S INITIALS: AGENCY'S INITIALS:
Nonprofit and each of the entities constituting Nonprofit, shall, from and after the
Closing, defend, indemnify and hold harmless Agency, City, and their officers, directors,
employees, agents and representatives (collectively, the "Indemnified Parties") from and against
any and all Environmental Claims, Environmental Cleanup Liability, Environmental Compliance
Costs, and any other claims, actions, suits, legal or administrative orders or proceedings,
demands or other liabilities resulting at any time from the physical and/or environmental
conditions of the Site whether before or after the Closing or from the existence of any Hazardous
Materials or the release or threatened release of any Hazardous Materials of any kind
whatsoever, in, on or under the Site occurring at any time whether before or after the Closing,
including, but not limited to, all foreseeable and unforeseeable damages, fees, costs, losses and
expenses, including any and all attorneys' fees and environmental consultant fees and
investigation costs and expenses, directly or indirectly arising therefrom, and including fines and
penalties of any nature whatsoever, assessed, levied or asserted against any Indemnified Parties
to the extent that the fines and/or penalties are the result of a violation or an alleged violation of
any Environmental Law. Nonprofit further agrees that in the event Nonprofit obtains, from
former or present owners of the Site or any other persons or entities, releases from liability,
indemnities, or other forms of hold harmless relating to the subject matter of this section,
Nonprofit shall use its diligent efforts to obtain for Agency and City the salve releases,
indemnities and other comparable provisions.
For purposes of this Section 410, the following terms shall have the following meanings:
a. "Environmental Claim" means any claim for personal injury, death
and/or property damage made, asserted or prosecuted by or on behalf of any third party,
including, without limitation, any governmental entity, relating to the Site or its
operations and arising or alleged to arise under any Environmental Law.
b. "Environmental Cleanup Liability" means any cost or expense of any
nature whatsoever incurred to contain, remove, remedy, clean up, or abate any
contamination or any Hazardous Materials on or under all or any part of the Site,
including the ground water thereunder, including, without limitation, (A) any direct costs
or expenses for investigation, study, assessment, legal representation, cost recovery by
governmental agencies, or ongoing monitoring in connection therewith and (B) any cost,
expense, loss or damage incurred with respect to the Site or its operation as a result of
actions or measures necessary to implement or effectuate any such containment, removal,
remediation, treatment, cleanup or abatement.
C. "Environmental Compliance Cost" means any cost or expense of any
nature whatsoever necessary to enable The Site to comply with all applicable
Environmental Laws in effect. "Environmental Compliance Cost" shall include all costs
necessary to demonstrate that The Site is capable of such compliance.
d. "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
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to (A) pollution or protection of the environment, including natural resources, (B)
exposure of persons, including employees, to Hazardous Materials or other products, 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 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.
e. "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-Tamier 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 sue. (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 sue. (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 oil wells and/or underground storage tanks and/or pipelines, as now, or at any time
here-after, in effect.
Notwithstanding any other provision of this Agreement, Nonprofit's release and
indemnification as set forth in the provisions of this Section, as well as all provisions of this
Section shall survive the termination of this Agreement and shall continue in perpetuity.
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Notwithstanding anything to the contrary in this Section, Nonprofit's release of Agency
and City from liability pursuant to this Section shall not extend to Hazardous Materials brought
onto The Site by Agency or City.
I. (§409) Costs of Escrow.
1. Allocation of Costs. The Escrow Agent is authorized to allocate costs as
follows: Each of the three parties: Agency, Owner/Lessee and Nonprofit shall pay one-third
(33.3%) of all escrow costs. Each party shall pay its own attorney's fees
2. Proration and Adjustments. Ad valorem taxes and assessments on the Site
and insurance for the current year shall be prorated by the Escrow Agent as of the date of
Closing with the Owner/Lessee responsible for those levied, assessed or imposed prior to
Closing and the Nonprofit 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, Nonprofit and Owner/Lessee shall, within
thirty days thereafter, reprorate the taxes in cash between the parties.
3. Extraordinary Services of Escrow Agent. It is understood that escrow fees
and charges contemplated by this Agreement incorporate only the ordinary services of the
Escrow Agent as listed in these instructions. In the event that the Escrow Agent renders any
service not provided for in this Agreement as amended, or that there is any assignment of any
interest in the subject matter of this escrow as amended, or that any controversy arises hereunder,
or that the Escrow Agent is made a party to, or reasonably intervenes in, any litigation pertaining
to this escrow or the subject matter thereof, then the Escrow Agent shall be reasonably
compensated for such extraordinary services and reimbursed for all costs and expenses
occasioned by such default, controversy or litigation.
4. Escrow Agent's R114ht to Retain Documents. Escrow Agent shall have the
right to retain all documents and/or other things of value at any time held by it hereunder until
such compensation, fees, costs and expenses shall be paid. The undersigned hereby jointly and
severally promise to pay such sums upon demand.
J. (§410) Termination of Escrow.
1. Termination. Escrow may be terminated by demand of any party who then
shall have fully performed its obligations hereunder required to be performed by the date of such
demand if:
a. The Conditions to Closing have not occurred or have not been approved,
disapproved, or waived as the case may be b the approving art b the date established
i PP � Y Y Pp g party Y
herein for the occurrence of such Condition, including any grace period pursuant to this
Section; or
b. Escrow is not in a condition to close by the date set for Closing; or
C. Any party is in breach of the terms and conditions of this Agreement.
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d. Any party has been granted such right expressly in this Agreement.
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 fifteen
(15) 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 fifteen (15) 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 Nonprofit, Owner/Lessee 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.
2. Opportunity 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 "nonapproving
party") the reason for the disapproval. Thereafter, the nonapproving 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 701.
K. (§411) Responsibility of Escrow Agent.
1. Deposit of Funds. In accordance with Section 405, all funds received in
Escrow shall be deposited by the Escrow Agent in a special interest-bearing 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.
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, Owner/Lessee and Nonprofit.
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 Nonprofit's, Owner/Lessee's and Agency's instructions for their use.
4. Exculpation of Escrow Agent. 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.
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5. Responsibilities in the Event of Controversies. If any controversy
documented in writing arises between Nonprofit, Owner/Lessee or 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 Nonprofit 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.
V. (§500) DEVELOPMENT OF THE SITE.
[This Section Reserved]
V1. (§600) USES AND MAINTENANCE OF THE SITE
A. (§601) Uses of the Site.
The Nonprofit covenants and agrees for itself, its successors, its assigns and every
successor in interest that the Nonprofit, such successors and such assigns shall devote the Site to
the uses as follows:
The Nonprofit covenants and agrees for itself, its successors and assigns, which
covenants shall run with the land and bind every successor or assign in interest of Nonprofit, that
neither the Site nor the improvements, nor any portion thereof, shall be improved, used or
occupied in violation of any applicable governmental restrictions or the restrictions of this
Agreement. Furthermore, Nonprofit and its successors and assigns shall not initiate, maintain,
commit, or permit the maintenance or commission on the Site or in the improvements, or any
portion thereof, or any nuisance, public or private, as now or hereafter defined by any statutory
or decisional law applicable to the Site or the improvements, or any portion thereof. The
Nonprofit further covenants and agrees on behalf of itself and its successors and assigns to
devote, use, operate and maintain the Site in accordance with this Agreement, the Grant Deed,
the Supplemental Regulatory Agreement, the Bond Financing Agreements, and the other
documents recorded against the Site pursuant to the provisions of this Agreement.
Notwithstanding anything to the contrary or that appears to be to the contrary in this
Agreement, Nonprofit hereby covenants, on behalf of itself, and its successors and assigns,
which covenants shall run with the land and bind every successor and assign in interest of
i Nonprofit, that, Nonprofit and such successors and assigns shall use the Site solely for the
purpose of maintaining and operating a mobilehome project meeting the requirements and
restrictions of this Agreement, including, without limitations, restriction of the rental and
occupancy of the specified number of spaces only to Qualified Tenants for a rent not in excess of
an Affordable Rent for a period of 55 years.
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B. (§602) Affordable Housing.
1. Operation and Maintenance of Affordable Housing. The Nonprofit
covenants and agrees to operate and maintain a total of one hundred seventy-three (173) spaces
in conformity with the Scope of Development. At all times the percentage of the spaces required
pursuant to this Agreement are to be restricted to Affordable Rent to Very Low and Lower
Income Households. All additional units shall be restricted to rental increases allowed under the
Lease Agreement as further explained in the Supplemental Regulatory Agreement ("Attachment
No. 7"). Nonprofit shall not be deemed to be out of compliance with the covenants and
agreements set forth herein if, with respect to those spaces presently occupied by a tenant or
tenants that cannot be determined to be in compliance, Nonprofit implements said covenants and
agreements upon the first occurrence of a tenant vacancy in such space or upon the termination
of the lease on such space. All Covenanted Spaces shall be subject to and shall be leased in
compliance with the tenant selection criteria described in the Supplemental Regulatory
Agreement. The restrictions upon rental and use of the required percentage of Covenanted
Spaces shall continue for a period of fifty-five (55) years from the Bond Financing.
2. Leasing of Residences by Nonprofit.
a. Covenanted Spaces. Each of the Covenanted Spaces shall be rented to a
Qualified Tenant for a rental rate which does not exceed an Affordable Rent for the
required number of spaces (25% Very Low and 24% Low). All other units shall be
limited to those rents that would have been applicable pursuant to the Lease Agreement
as set out in the Supplemental Regulatory Agreement.
b. Annual Tenancy Report. Nonprofit shall provide Agency annually,by
January 31, with a report on Project occupancy verifying the number of Qualified
Tenants occupying spaces. The annual report and Nonprofit's records related to each
tenancy shall be subject to inspection and audit upon Agency's written request.
C. (§603) 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, nor shall Nonprofit, or any person claiming under or through Nonprofit, 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 Site or any portion thereof (except as permitted by this Agreement). The
nondiscrimination and nonsegregation covenants contained herein shall remain in effect in
perpetuity.
D. (§604) Form of Nondiscrimination and Nousegregation Clauses.
Nonprofit 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, ancestry or national origin of any
person. All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
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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."
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."
3. Contracts: Any contracts which Nonprofit or Nonprofit's heirs, executors,
administrators, or assigns propose to enter into for the sale, transfer, or leasing of the Site shall
contain a nondiscrimination and nonsegregation clause substantially as set forth in this Section.
Such clause shall bind the contracting party and subcontracting party or transferee under the
instrument.
E. (§605) Maintenance of Improvements.
Nonprofit covenants and agrees for itself, its successors and assigns, and every successor
in interest to the Site or any part thereof, the Nonprofit 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 good condition and repair, and shall keep the
Site free from any accumulation of debris or waste materials. The Nonprofit shall also maintain
all landscaping in a healthy condition, including replacement of any dead or diseased plants. The
foregoing maintenance obligations shall nn with the land in accordance with and for the term of
the Supplemental Regulatory Agreement. Nonprofit's further obligations to maintain the Site,
and Agency's remedies in the event of Nonprofit's default in performing such obligations, are set
forth in the Supplemental Regulatory Agreement. Nonprofit hereby waives any notice, public
hearing, and other requirements of the public nuisance laws and ordinances of the City that
would otherwise apply, except as specified in said Regulatory Agreements. Upon the sale of any
portion of the Site, Nonprofit (but not Nonprofit's successor) shall be released from the
requirements imposed by this Section 605, and the financial liability therefor, as to the portion of
the Site conveyed.
F. (§606) Effect of Covenants.
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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 or the
Regulatory Agreement, 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.
VII. (§700) DEFALLTS, REMEDIES AND TERMINATION
A. (§701) Defaults, Right 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 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.
B. (§702) Legal Actions.
1. Institution of Legal 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
19142 v3 _22_ Sunrise DDA
(Previously 418406 v3) Draft of 11/25/03
it
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. Applicable Law and Forum. The laws of the State of California shall
govern the interpretation and enforcement of this Agreement.
3. Acceptance of Service of Process. In the event that any legal action is
commenced by Nonprofit against Agency, service of process on Agency shall be made by
personal service upon the Executive Director or Secretary of Agency, as applicable, or in such
other manner as may be provided by law.
In the event that any legal action is commenced by Agency against Nonprofit, service of
process on Nonprofit 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.
C. (§703) Rights 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 any 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 any other party.
D. (§704) Specific Performance.
In addition to any other remedies permitted by this Agreement, if any 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 (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, Nonprofit 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 Nonprofit to speculate with land.
E. (§705) Right of Reverter. [Reserved]
F. (§706) Attorney's Fees.
If any 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 Nonprofit, Owner/Lessee 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
19142 v3 _23_ Sunrise DDA
(Previously#18406 v3) Draft of 11/25/03
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.
VI1I. (§800) GENERAL PROVISIONS
A. (§801) 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; or by facsimile, if such facsimile is followed by a notice sent out the same day by mail;
in any 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: The Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
Copy to: Aleshire, Wynder & Sylva, LLP
18881 Von Karman Avenue, Suite 400
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
Owner/Lessee:
Attn: Executive Director
Nonprofit:
Attn: Executive Director
Copy to:
Attn:
B. (§802) Nonliability of City and ALeney Officials and Employees; Conflicts of
Interest; Commissions.
19142 v3 _24_ sunrise DDA
(Previously#18406 v3) Draft of 11/25/03
1. Personal Liability. No member, official, employee, agent or contractor of
City or Agency shall be personally liable to Nonprofit in the event of any default or breach by
Agency for any amount which may become due to Nonprofit or on any obligations under the
terms of the Agreement; provided, it is understood that nothing in this Section 802 is intended to
limit Agency's liability.
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.
3. Commissions. The Agency has not retained any broker or finder, and the
Agency will not pay or give, any third person any money or other consideration for obtaining
this Agreement. The Agency shall not be liable for any real estate commissions, brokerage fees
or finders fees which may arise from this Agreement, and the Owner/Lessee and Nonprofit agree
to hold the Agency harmless from any claim by any broker, agent, or finder retained by such
party.
C. (§803) 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 or City shall not excuse performance by Agency
unless the act or failure is caused by the acts or omissions of Nonprofit); 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.
�I
Nonprofit's failure to effect the Bond Financing on or before [September 30, 20031 shall
not entitle Nonprofit to an extension of time pursuant to the foregoing provisions regarding
enforced delay.
Times of performance under this Agreement may also be extended by mutual 'written
agreement by Agency and Nonprofit.
D. (§804) Books and Records.
19142 v3 _25_ sunrise DDA
(Previously#18406 v3) Draft of 11/25/03
1. Nonprofit to Keep Records. Nonprofit shall prepare and maintain all books,
records and reports necessary to substantiate Nonprofit's compliance with the terms of this
Agreement or reasonably required by the Agency.
2. Ril?ht 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.
3. Ownership of Documents. Copies of all drawings, specifications, reports,
records, documents and other materials prepared by Nonprofit, its employees, agents and
subcontractors, in the performance of this Agreement, which documents are in the possession of
Nonprofit and are not confidential shall be delivered to Agency upon request in the event of a
termination of this Agreement, and Nonprofit shall have no claim for additional compensation as
a result of the exercise by Agency of its rights hereunder; provided that drawings, specifications,
reports, records, documents and other materials prepared by Nonprofit's subcontractors shall be
delivered without representation or warranty by Nonprofit. The Agency shall have an
unrestricted right to use such documents and materials as if it were in all respects the owner of
the same. Nonprofit makes no warranty or representation regarding the accuracy or sufficiency
of such documents for any future use by Agency, and Nonprofit shall have no liability therefor.
E. (§805) Assurances to Act in Good Faith.
Agency, Owner/Lessee and Nonprofit 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 best efforts, to accomplish
the closing and subsequent operation and maintenance of the Site in accordance with the
provisions hereof. Agency, Owner/Lessee and Nonprofit shall each diligently and in good faith
pursue the satisfaction of any conditions or contingencies subject to their approval. The Agency
agrees to exercise good faith efforts to approve any amendment to this Agreement as may be
required in writing by HUD (as defined in Attachment #7) to accomplish the Closing and the
concurrent closing of the Bond Financing.
F. (§806) 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.
I
G. (§807) 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
19142 v3 _26_ Sunrise DDA
(Previously N18406 v3) Draft of 11/25/03
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 Nonprofit, as applicable, and all amendments hereto must
be in writing and signed by the appropriate authorities of Agency and Nonprofit.
H. (§808) Severability.
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.
I. (§809) 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 Nonprofit. Further amendments to the Redevelopment Plan applying
to other property in the Project Area shall not require the consent of Nonprofit.
1 (§810) Time for Acceptance of Agreement by Agency.
This Agreement, when executed by Nonprofit 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 Nonprofit shall consent in
writing to further extensions of time for the authorization, execution, and delivery of this
Agreement. After execution by Nonprofit, 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.
K. (§811) Execution.
1. 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.
2. 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.
3. Owner/Lessee represents and warrants that: (i) it is duly organized and
existing under the laws of the State of California; (ii) by proper action of Owner/Lessee,
Owner/Lessee 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 Owner/Lessee
does not violate any provision of any other agreement to which Owner/Lessee is a party.
19142 v3 _27_ Sunnse DDA
(Previously#18406 v3) Draft of 11/25/03
4. Nonprofit represents and warrants that: (i) it is duly organized and existing
under the laws of the State of California; (ii) by proper action of Nonprofit, Nonprofit 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 Nonprofit does not violate any provision of
any other agreement to which Nonprofit is a party.
[END-- SIGNATURES ON NEXT PAGE]
19142 v3 _28_ Sunrise DDA
(Previously#19406 v3) Draft of 11/25/03
ATTACHMENT NO. 1
SUNRISE DDA
SITE MAP
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CITY OF PALM SPRINGS
DEPARTMENT OF PUBLIC WORKS ENGINEERING DIVISION
ATTACHMENT NO. 2
SUNRISE DDA
LEGAL DESCRIPTION OF THE PROPERTY
LOT I OF TRACT NO. 17642-1 IN THE CITY OF PALM SPRINGS,
COUNTY OF RIVERSIDE, CALIFORNIA, AS PER MAP ON FILE IN BOOK
122 PAGES 88, 89 AND 90 OF MAPS, IN THE OFFICE OF THE RECORDER
OF SAID COUNTY, TOGETHER WITH PARCEL 2 AS SHOWN DESCRIBED
IN DOCUMENT RECORDED APRIL 25, 1996 AS INSTRUMENT NO.
148930, RECORDS OF SAID COUNTY.
EXCEPT THE NORTHERLY 731.00 FEET OF SAID LOT 1 AND EXCEPT
THE NORTHERLY 731 FEET OF SAID PARCEL 2 OF INSTRUMENT NO.
148930.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the Agency.
"AGENCY"
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,
a public body corporate and politic
Date
Chair
.=FE-ST•
Agency Sec et-afy
APPROVED AS TO FORM: 1' 'i " ' S7 L C `k :i's�E ev`1 !s..Vq�" �ti , ,„•V„
ALESHIRE, WYNDER & SYLVA, LLP
David J. Aleshire 'Uil ' u li ' it ' iv 1
Agency Counsel 7
"OWNER/LESSEE" SANTIAGO SUNRISE VILLAGE
A California Limited Partnership by SANTIAGO
COMMUNITIES, IN-C'::, Its General Partner
y
Date 11 /26/03 By: Is _
Richard Si�nonian, President
"NONPROFIT": CALIFORNIA MOBILE HOME PARK
CORPORATION
11/26/03 BY:
Date G Garry E ndson, Chief Operating icer
[END OF SIGNATURES]
19142 v3 _29_ Sunrise DDA
(Previously#18406 v3) Draft of 11/25/03
ATTACHMENT NO. 1
SUNRISE DDA
SITE MAP
[To Be Inserted]
i
9999/001/19142 v3 ATTACHMENT NO. 1
(Previously#18406 v3) To SUNRISE DDA
PAGE 1 OF 1
Draft of 10/22/02
ATTACHMENT NO. 2
SUNRISE DDA
LEGAL DESCRIPTION
[To Be Inserted]
19142 v3 ATTACHMENT NO.2
(Previously#18406 v3) To SUNRISE DDA
PAGE OF
Draft of 11/25/03
ATTACHMENT NO. 3
SUNRISE DDA
SCHEDULE OF PERFORMANCE
Item To Be Performed Time for Performance Agreement
Reference
1. Nonprofit executes and delivers On or before November, 2003
DDA to Agency
2. Agency holds public hearing on November, 2003
DDA
3. Agency approves or disapproves Within 30 days after execution 810
DDA and, if approves, executes by Nonprofit of DDA and
DDA. delivery to Agency
4. Agency shall ensure DDA and Upon approval of the DDA
Project comply with all
requirements of CEQA.
5. Nonprofit shall demonstrate to the Underwriter opinion 401
reasonable satisfaction of Agency
evidence of commitments for Bond
Financing.
6. Bond Closing and Transfer of On or before September, 2004
Property.
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 Nonprofit 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.
19142v5 ATTACHMENT NO.3
(previously IRV 418406 v3) To SUNRISE DDA
PACE I OF 4
Draft of 11/26/03
ATTACHMENT NO. 4
SUNRISE DDA
SCOPE OF DEVELOPMENT
I. PROJECT CONCEPT
The Project Concept encompasses the operation and maintenance by Nonprofit of the 173
space Sunrise Village Mobile Home Park in the City of Palm Springs. The Nonprofit shall
operate the Site in accordance with the terms of the DDA. Forty-nine percent (49%) of the
Spaces shall be Covenanted Spaces, restricted to rental at an Affordable Housing Cost to Very
Low (25%) and Lower (24%) Income Households, as provided in the DDA. In addition, the
remaining 5 1% of the units shall be subject to rent control provisions set forth in the Regulatory
Agreement.
The Project shall be operated and maintained in accordance with the Palm Springs
Municipal Code and the Supplemental Regulatory Agreement.
II. SITE DESCRIPTION
The Site is located at 1500 East San Rafael in the City of Palm Springs on approximately
20 acres of land in an area commonly referred to as North Palm Springs.
19142 v5 ATTACHMENT NO 4
(Previously 418406 v3) To SUNRISE DDA
PAGE OF
Draft of 11/25/03
ATTACHMENT NO. 5
SUNRISE DDA
[This Space Reserved)
19142 v5 EXHIBTT"A"TO
(Previously#18406 v3) ATTACHMENT NO.5
To SUNRISE DDA
PAGE 1 OF_
Draft off 1/25/03
ATTACHMENT NO. 6A
SUNRISE DDA
GRANT DEED
(Owner/Lessee)
FREE RECORDING REQUESTED BY AND
AFTER RECORDATION RETURN TO:
Sunrise Village Mobile Home Park Corporation
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 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and politic, of the State of California ("Grantor"), acting to
carry out its functions under the Community Redevelopment Law of the State of California,
hereby grants to SANTIAGO SUNRISE VILLAGE, a California limited partnership
("Grantee"), the real property ("The 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 Grantee and the City of Palm Springs ("City"), as
follows:
1. Governin2 Documents. The Site is conveyed pursuant to a Disposition and
Development Agreement (the "DDA") entered into between and among Grantor, Grantee and
Nonprofit, dated 2002. Grantee agrees to convey its interest to Nonprofit
pursuant to the DDA terns by Attachment 6B, Nonprofit Grant Deed. Grantee covenants and
agrees for itself and its successors and assigns to use, operate and maintain the Site in accordance
with the DDA and this Deed. In the event of any conflict between this Grant Deed and the DDA,
the provisions of the DDA shall control.
2. Regulatory Agreement. Grantee covenants and agrees for itself and its
successors and assigns to its interest in the Site that it shall abide by all of the terms listed in the
Regulatory Agreement attached to the DDA as Attachment No. 7.
3. Use of Site. The Grantee covenants that Grantee may only use the Site for
residential purposes as consistent with the time period and other terms, covenants and conditions
19142 v5 ATTACHMENT NO.6A
(Previously#18406 v3) To SUNRISE DDA
PAGE 1 of 6
Draft on 1/25/03
set forth in the DDA and the Regulatory Agreement, by which Grantee has agreed to be bound.
Grantee shall have no right to subdivide, separate, or partition the Site except as provided in the
DDA. Breach of the terms, covenants, conditions, and provisions of the DDA or Regulatory
Agreement shall be a material breach of this conveyance.
4. Encumbrances Prohibited. [Reserved]
5. Non-Discrimination. The Grantee covenants that except for the
tenancy/occupancy restrictions not prohibited by federal law as embodied in the DDA, 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 nonsegregation covenants contained herein shall
remain in effect in perpetuity.
6. Form of Nondiscrimination Clauses in Agreements. Subject to the
tenancy/occupancy restrictions not prohibited by federal law as embodied in the DDA, which
may modify the following nondiscrimination clauses, the following shall apply: 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 nonsegregation clauses:
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. 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
jmental disability, ancestry, or national origin in the leasing, subleasing, renting, transferring, use,
occupancy, tenure, or enjoyment of the land herein leased nor shall the lessee itself, or any
19142 v5 ATTACHMENT NO.6A
(Previously 418406 0) To SUNRISE DDA
PAGE 2 OF 6
Draft oft 1/25/03
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. 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. Morteage 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. 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. 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.
i
I
i
19142 v5 ATTACHMENT NO 6A
(Previously#18406 v3) To SUNRISE DDA
PAGE 3 of 6
Draft oil 1/25/03
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
2001.
"GRANTOR"
THE COMMUNITY REDEVELOPMENT
AGENTY OF THE CITY OF PALM SPRINGS,
a public body corporate and politic
Date Chair
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
ALSHIRE &WYNDER, LLP
David J. Aleshire
Agency Counsel
[SIGNATURES CONTINUED ON NEXT PAGE]
19142 v5 ATTACHMENT NO.6A
(Previously#18406 v3) To SUNRISE DDA
PAGE oF6
Draft ofl1/25/03
By its acceptance of this Grant Deed, Grantee hereby agrees as follows:
1. 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.
2. The provisions of this Grant Deed are hereby approved and accepted.
"GRANTEE"
SANTIAGO SUNRISE VILLAGE
a California limited partnership
Date
Executive Director
[END OF SIGNATURES]
M42 v5 ATTACHMENT NO.6A
(Previously#18406 v3) To SUNRISE DDA
PAGE 5 OF 6
Draft on 1/25/03
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[TO BE INSERTED]
19142 v5 ATTACHMENT NO 6A
(Previously#18406 v3) To SUNRISE DDA
PAGE 1 OF 6
Draft of 11/25/03
ATTACHMENT NO. 6B
SUNRISE DDA
GRANT DEED
(Nonprofit)
FREE RECORDING REQUESTED BY AND
AFTER RECORDATION RETURN TO:
Sunrise Village Mobile Home Park Corporation
Attn: Executive Director
(Space Above This Line For Recorder's Office Use On
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,
SANTIAGO SUNRISE VILLAGE, , a California limited partnership ("Grantor"), hereby
grants to SUNRISE VILLAGE MOBILE HOME PARK CORPORATION, a California
nonprofit corporation ("Grantee"), the real property (the "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 Community Redevelopment Agency of the City of
Palm springs ("Agency") and the City of Palm Springs ("City"), as follows:
1. Governin2 Documents. The Site is conveyed pursuant to a Disposition and
Development Agreement (the "DDA") entered into between and among Grantor, Grantee and
The Community Redevelopment Agency of the City of Palm Springs, dated ,
2003. Grantee covenants and agrees for itself and its successors and assigns to use, operate and
maintain the Site in accordance with the DDA and this Deed. In the event of any conflict
between this Grant Deed and the DDA, the provisions of the DDA shall control.
2. Regulatory Agreement. Grantee covenants and agrees for itself and its
successors and assigns to its interest in the Site that it shall abide by all of the terms listed in the
Supplemental Regulatory Agreement attached to the DDA as Attachment No. 7.
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3. Use of Site. The Grantee covenants that Grantee may only use the Site for
residential mobilehome purposes as consistent with the time period and other terms, covenants
j and conditions set forth in the DDA and the Regulatory Agreement, by which Grantee has agreed
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to be bound. Breach of the terms, covenants, conditions, and provisions of the DDA or
Regulatory Agreement shall be a material breach of this conveyance.
4. Encumbrances Prohibited. [Reserved]
5. Non-Discrimination. The Grantee covenants that except for the
tenancy/occupancy restrictions not prohibited by federal law as embodied in the DDA, 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 nonsegregation covenants contained herein shall
remain in effect in perpetuity.
6. Form of Nondiscrimination Clauses in Agreements. 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 nonsegregation clauses:
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. 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, 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."
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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. Mortgage 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 the Bond Financing agreements, 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. 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. 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.
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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
2002.
"GRANTOR"
SANTIAGO SUNRISE VILLAGE,
a California limited partnership
Date
[SIGNATURES CONTINUED ON NEXT PAGE]
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By its acceptance of this Grant Deed, Grantee hereby agrees as follows:
1. 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.
2. The provisions of this Grant Deed are hereby approved and accepted.
"GRANTEE"
SUNRISE VILLAGE MOBILE HOME PARK
CORPORATION, a California nonprofit
corporation
Date
Executive Director
[END OF SIGNATURES]
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EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[TO BE INSERTED]
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ATTACHMENT NO. 7
SUNRISE DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
SUPPLEMENTAL REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS SUPPLEMENTAL REGULATORY AGREEMENT AND DECLARATION OF
COVENANTS AND RESTRICTIONS ("Agreement") is made and entered into this _ day of
by and between THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic
("Agency"), the CITY OF PALM SPRINGS, a municipal corporation ("City"), and SUNRISE
VILLAGE MOBILE HOME PARK CORPORATION, a California nonprofit corporation
("Owner").
RECITALS :
A. Pursuant to a Disposition and Development Agreement between and among
Agency, Owner and the prior Owner/Lessee dated , 2003 (the "DDA"),
Agency has provided to Owner real property valued in the amount of THREE HUNDRED
NINETY-TWO THOUSAND FORTY DOLLARS ($392,040) (collectively the "Agency
Assistance"), all for the purpose of assisting Owner in the acquisition of real property to operate
and maintain a mobile home project thereon for a certain number of very low, lower income and
restricted rental households on that certain real property located in the City of Palm Springs,
County of Riverside, State of California, more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference (the "Site").
B. Pursuant to the DDA, Owner has agreed to operate and maintain a mobile home
project consisting of one hundred seventy-three (173) residential Rental Spaces (the "Project")
on the Site of which amount 49% (or 85 Rental Spaces) shall be occupied by Eligible Tenants at
an Affordable Rent except as otherwise provided herein. The Project is also referred to in the
DDA as the "Project."
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C. The Agency and the City have fee or easement interests in various streets,
sidewalks and other property within the City and are responsible for the planning and
development of land within the City in such a manner so as to provide for the health, safety and
welfare of the residents of the City. That portion of the Agency's and City's interest in real
property most directly affected by this Agreement is depicted in Exhibit `B" attached hereto and
incorporated herein by reference ("Public Parcel").
D. Agency, City, and Owner now desire to place restrictions upon the use and
operation of the Project, in order to ensure that the Project shall be operated continuously as a
housing project available for rental of the mobile home spaces by very low and lower income
individuals with the remaining spaces to be rent restricted for the fifty-five (55) year term of this
Agreement.
E. It is the intent of the parties that the title vested in Owner by the Grant Deed for
the Site dated ("Grant Deed"), recorded concurrently with the documents required
for the Bond Financing Office of the County Recorder for the County of Riverside be subject to
this Agreement, and that the terms hereof shall be binding on the Owner and its successors in
interest in the Site for so long as this Agreement shall remain in effect.
F. Agency, City and Owner are entering into this Agreement and wish it to be
recorded as a covenant running with the Site on a subordinate basis to the documents required to
accomplish the Bond Financing, including the Bond Financing Regulatory Agreement. As long
as the Bond Financing Regulatory Agreement and the Bond Financing documents are in effect,
the terms of this Agreement shall only be enforced with the prior written consent of the Lender
(as defined in the Bond Financing documents) and HUD. In the event of foreclosure or transfer
of title by deed in lieu of foreclosure, this Agreement and the restrictions hereunder will
automatically terminate, as more fully set forth in Section B.6. hereof.
AGREEMENT :
NOW, THEREFORE, the Owner, City, and Agency declare, covenant and agree, by and
for themselves, their heirs, executors, administrators and assigns, and all persons claiming under
or through them, that the Site shall be held, transferred, encumbered, used, sold, conveyed,
leased and occupied, subject to the covenants and restrictions hereinafter set forth, all of which
are declared to be in furtherance of a common plan for the sale of the Site, and are established
expressly and exclusively for the use and benefit of the Agency, the citizens of the City of Palm
Springs, and every person renting a mobile home rental space on the Site.
A. DEFINITIONS.
I. Affordable Lower Income Rent. As used in this Agreement, the term
"Affordable Lower Income Rent" shall mean annual rentals which amount does not
exceed the maximum percentage of income that can be devoted to rent as set forth by
Health & Safety Code Section 50053, or its successor, which is currently thirty percent
(30%) of eighty percent (80%) of the Riverside County Median Income adjusted both for
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the family size and the size and m mber of bedrooms of the appropriate mobile home
located on a Rental Space.
2. Affordable Rent. As used in this Agreement, the term "Affordable Rent"
shall refer to collectively Affordable Very Low Income Rent and Affordable Lower
Income Rent. In determining that affordability level the costs to be include in such
determination shall included the following:
(a) All costs for rental or purchase of the mobile home park space,
including homeowners association fees, special assessments, and required space
maintenance.
(b) All costs of purchase or lease of the mobile home coach, including
principal and interest on any mortgage, property taxes, vehicle registration, and
other fees.
(c) Insurance on the mobile home, not including its contents.
(d) Utilities including specifically gas, electricity, water, sewer, trash
collection, but exclusive of telephone, Internet access, and cable television and
satellite television service.
3. Affordable Very Low Income Rent. As used in this Agreement, the term
"Affordable Very Low Income Rent" shall mean annual rentals which amount does not
exceed the maximum percentage of income that can be devoted to rent as set forth by
Health & Safety Code Section 50053, or its successor, which is currently thirty percent
(30%) of fifty percent (50%) of the Riverside County Median Income adjusted for both
for the family size and the size and number of bedrooms of the appropriate mobile home
located on the Rental Space.
4. Covenanted Space. As used in this Agreement, the term "Covenanted
Space" shall refer to any of the Rental Spaces rented by Eligible Tenants which are
counted towards meeting the percentage requirements of 25% of the overall units rented
to Very Low Income Households (not to exceed 43 Rental Spaces) and 24% of the
overall units rental to Lower Income Households (not to exceed 42 Rental Spaces). The
Rental Spaces which may at anytime constitute a Covenanted Space are not permanently
assigned but rather float throughout the site as occupancy changes throughout the Project
and different Rental Spaces are certified by Owner to be occupied by Eligible Tenants.
5. Eligible Tenant. As used in this Agreement, the term "Eligible Tenant"
shall refer to a Very Low Household or a Lower Income Household.
6. Riverside County Median Income. For purposes of this Agreement, the
"Riverside County Median Income" shall be determined by reference to the regulations
published by the California Department of Housing and Community Development
pursuant to Health and Safety Code Section 50093, or its successor.
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7. Lower Income Household. As used in this Agreement, the term "Lower
Income Household" shall mean those tenants whose household income does not exceed
eighty percent (80%) of the Riverside County Median Income adjusted for family size.
S. Project Manager. As used in this Agreement, the term "Project Manager"
shall refer to that entity, to be designated by Owner and subject to reasonable approval by
Agency, who shall be responsible for operating and maintaining the Project in accordance
with the terms of this Agreement. Prior to receipt of Agency's approval for the initial
and each subsequent Project Manager, Owner shall act as Project Manager.
9. Rental Space. As used in this Agreement, the term 'Rental Space" shall
refer to any of the hone hundred seventy-three (173) mobile homes park residential rental
spaces in the Project.
10. Resident Manager. As used in this Agreement, the term "Resident
Manager" shall refer to that individual (or those individuals) who may reside in the
Project and who are responsible for day-to-day management of the Project.
11. Very Low Income Household. As used in this Agreement, the term "Very
Low Income Household" shall mean those tenants whose income does not exceed fifty
percent (50%) of the Riverside County Median Income adjusted for family size.
B. RESIDENTIAL RENTAL PROPERTY. The Owner hereby agrees that the
Project is to be owned, managed, and operated as a project wherein forty-nine percent (49%) of
the Rental Spaces shall be reserved for very low and low income residential rental purposes for a
tenn equal to fifty-five (55) years, commencing upon the date of the recordation of the transfer to
Owner of the Site in accordance with the DDA (the "Term"). To that end, and for the term of
this Agreement, the Owner hereby represents, covenants, warrants and agrees as follows:
1. Purpose. The Project is being acquired for the purpose of providing very
low, lower income and otherwise restricted rental housing for Very Low Income
Households and Lower Income Households, and the Owner shall own, manage, and
operate the Project as a project to provide very low and low income rental housing
comprised of mobile home facilities, together with any functionally related and
subordinate facilities.
2. Residential Use. None of the Rental Spaces in the Project will at any time
be utilized on a transient basis or used as a hotel, motel, dormitory, fraternity house,
sorority house, rooming house, nursing home, hospital or sanitarium without the
Agency's prior consent which consent may be given or withheld in its sole and absolute
discretion.
3. Conversion of Project. No part of the Project will at any time be owned
by a cooperative housing corporation, nor shall the Owner take any steps in connection
with the conversion to such ownership or uses to condominiums, or to any other form of
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ownership, without the prior written approval of Agency which approval may be given or
withheld in its sole and absolute discretion.
4. Preference to Eligible Tenants. All of the Rental Spaces will be available
for rental in accordance with the terms of this Agreement, and the Owner shall not give
preference to any particular class or group in renting the Rental Spaces in the Project,
except to the extent that the Rental Spaces are required to be leased or rented to Eligible
Tenants and except as provided in Section C.6 below.
5. Liability of Owner. Owner and Resident Manager shall not incur any
liability under this Agreement as a result of fraud or intentional misrepresentation by any
tenant of a Rental Space.
6. Early Termination. This Agreement and all other restrictions hereunder
shall terminate upon foreclosure of any deed of trust given to secure the Bonds or any
deed of trust given to secure another security instrument which secures the Bonds (a
"Deed of Trust") or transfer of title to the Project in lieu of foreclosure. In addition, this
Agreement and the restrictions hereunder shall also cease to apply in the event of an
involuntary noncompliance caused by unforeseen events such as fire, seizure, requisition,
a change in federal law or an action of a federal agency after the date of issue of the
Bonds which prevents enforcement of the requirements of this Agreement, or
condemnation or similar event, provided in all such cases that the Bonds are retired at the
first available call date. However, in the event that any insurance proceeds or
condemnation award or other amounts received as a result of such loss or destruction are
used to provide a project which meets the requirements of Section 142(d) or any
successor provision of the Internal Revenue Code of 1986, as amended (the "Code") and
Treasure Regulation Section 1.103-8(b), as amended, or any successor law or regulation,
this Agreement shall be automatically reinstated. The foregoing provisions of this
paragraph shall cease to apply in the event of foreclosure, transfer of title by deed in lieu
of foreclosure or similar event if, at any time subsequent to such event and during the
period set forth in (a) of this Section B.6, the obligor on the acquired purpose obligation
(as defined in Section 1.103-13(b)(4)(iv)(A) of the Treasure Regulations) or a related
person (as defined in Section 1.103-10(e) of the Treasury Regulations) obtains an
ownership interest in the Project for federal tax purposes.
C. OCCUPANCY OF PROJECT BY ELIGIBLE TENANTS. Owner hereby
represents, warrants, and covenants as follows:
1. Occupancy Restrictions. Except as otherwise expressly provided herein,
throughout the term of this Agreement the occupancy of all of the required number of
Covenanted Spaces in the Project shall be restricted to Eligible Tenants and qualified
members of the Eligible Tenant's household. The parties recognize that as for the date of
this Agreement the Owner has obtained information from existing tenants which the
Owner reasonably believes to be true and correct to enable the Agency and the Owner to
determine whether the Project complies with the minimum number of number of Eligible
Tenants renting Rental Spaces at an Affordable Rent. The Agency has reviewed and
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approved the document entitled "Owner's Certification of Eligible Tenants and
Affordable Rents" as submitted by the Owner and attached hereto as Exhibit "E", and the
Agency accepts the certification that substantially more than the minimum number of
Rental Spaces are deemed to be Covenanted Spaces as currently are occupied by Eligible
Tenants at an Affordable Rent, The Owner is required to comply with the obligation to
obtain the minimum number of Eligible Tenants who are renting the Rental Spaces at an
Affordable Rent, and nothing contained herein shall prevent the Owner from renting
Rental Spaces to persons and households who are not Eligible Tenants at an Affordable
Rent, and nothing contained herein shall prevent the Owner from renting Rental Spaces
to persons and households who are not Eligible Tenants at an Affordable Rent provided
that the Owner has complied with the minimum number required by this Agreement
regarding Eligible Tenants renting Rental Spaces at an Affordable Rent. The parties
recognize that the current and fixture tenants will have the right to sell or lease their
mobile home dwelling units to purchasers and tenants who will then seek and rental
agreement from the Owner for which the Owner may not be able to deny the granting of
such rental agreement. Based upon the sales prices or lease rates and terms for the
mobile home dwelling unit, the Owner may not be able to charge a rental rate for the
Rental Space that will comply with the Affordable Rents requirement. Under such
circumstances, the Owner will not be in default of any provision of this Agreement if the
Owner charges the then applicable rental rate for the rental Space. However, the Owner
will be required to seek compliance, if possible, with the terms of this Agreement when
the next available rental of a vacant Rental Space occurs if at such time the Owner has
the discretion and the right under all applicable law to refuse to rent a Rental Space to a
person or household who is not otherwise an Eligible Tenant. Furthermore, the Owner
will not be in default under any provision of this Agreement, if any otherwise Eligible
Tenant is purchasing or leasing a mobile home dwelling unit at a rate that when added to
the rental rate to be charged by the Owner exceeds the Affordable Rent level if the Owner
is charging a rental rate for the Rental Space that does not exceed the then current rental
rates established by the Owner for each Rental Space. The Owner shall, for a period of
up to ninety (90) days, hold vacant any Rental Space if the number of qualified spaces at
Affordable Rent are less than the amount required and use its best efforts to find a
Eligible Tenant prior to leasing to an otherwise qualified tenants seeking to rent a Rental
Space. The parties further recognize that he Owner is unable to control the resale and
leasing of those mobile home dwelling units which are owned by private parties and not
by the Owner, and the Owner will not be considered to be in default of any provision of
this Agreement when real estate market conditions warrant the sale or lease of mobile
home dwelling units directly to individuals and households who would not qualify as
Eligible Tenants or otherwise comply with the Affordable Rent requirements of this
Agreement. .
2. Expiration of Occupancy and Rent Restrictions. The Covenanted Spaces
shall be subject to the restrictions contained in this Agreement for the fifty-five (55) year
term. All tenants residing in the Covenanted Spaces during the final two (2) years of the
term shall be given notice of the expiration of the term at least once every six (6) months
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during the final two years. After the expiration of the term, the rents payable on all the
Rental Spaces may be raised to market rates.
3. Rental Rates. Owner hereby agrees to rent those Covenanted Space
occupied by Low Income Households (24% of the total number of Rental Spaces which
is equal to 42 Rental Spaces) at no greater than Affordable Lower Income Rent, and to
rent those Covenanted Spaces occupied by Very Low Income Household (25% of the
total number of Rental Spaces which is equal to 43 Rental Spaces) at no greater than
Affordable Very Low Income Rent as applicable. In addition, all other Rental Spaces
shall be rented at no greater amount than a quarterly increase of existing rent amounts as
adjusted by the CPI Index as calculated for Riverside County and consistent with the
calculation and operation under the original Lease.
4. Occupancy By Eligible Tenant. A Covenanted Space occupied by an
Eligible Tenant shall be treated as occupied by an Eligible Tenant until a recertification
of such tenant's income in accordance with Section C.8 below demonstrates that such
tenant no longer qualifies as an Eligible Tenant.
5. Income Computation Certificate. Immediately prior to an Eligible
Tenant's occupancy of a Covenanted Space, Owner shall obtain and maintain on file an
Income Computation and Certification form (which form shall be provided to the Owner
in advance by the Agency) from each such Eligible Tenant dated immediately prior to the
date of initial occupancy in the Project by such Eligible Tenant. In addition, the Owner
will provide such further information as may be required in the future by the Agency.
Owner shall use its best efforts to verify that the income provided by an applicant is
accurate by taking the following steps as a part of the verification process: (i) obtain
three (3) pay stubs for the most recent pay periods; (ii) obtain a written verification of
income and employment from applicant's current employer; (iii) obtain an income
verification form from the Social Security Administration and/or California Department
of Social Services if the applicant receives assistance from either agency; (iv) if an
applicant is unemployed or did not file a tax return for the previous calendar year, obtain
other verification of such applicant's income as is satisfactory to the Owner; or (v) such
other information as may be reasonably requested by the Agency. A copy of each such
Income Computation and Certification shall be made available to Agency at Agency's
request upon reasonable notice.
6. Rental Priority. During the term of this Agreement, Owner shall use its
best efforts to lease vacant Rental Spaces needed for meeting the Covenanted Spaces
percentage requirements in the following order of priority: (i) displaced persons entitled
to a preference pursuant to California Health and Safety Code Section 33411.3 or
successor statute, with highest priority in this category to residents of the City of Palm
Springs; and (ii) other persons meeting the eligibility requirements of this Agreement.
Owner shall and Agency may maintain a list (the "Housing List") of persons who have
filed a complete application with Owner to rent a Covenanted Space in the Project and
who have incomes which would qualify them as an Eligible Tenant, and Owner shall
offer to rent Covenanted Spaces on the above-referenced priority basis. Should multiple
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tenants be equally eligible and qualified to rent a Covenanted Space, Owner shall rent
available spaces to Eligible Tenants on a first-come, first-served basis.
7. Renting Vacant Spaces. If the total number of Covenanted Spaces then
being rented to Eligible Tenants declines below the minimum requirement, Owner shall
rent the next available vacant Rental Space to an Eligible Tenant in accordance with the
order of priority set forth in Section C.6 and subject to the provisions of Section C.1.
8. Income Recertification. On the first anniversary date of issuance of the
Bonds, and on each anniversary date thereafter, Owner shall recertify the income of such
Eligible Tenant by obtaining a completed Income Computation and Certification based
upon the current income of each occupant of the Covenanted Space. In the event the
recertification demonstrates that such household's income exceeds the income at which
such household would qualify as an Eligible Tenant, such household will no longer
qualify as an Eligible Tenant. If the occupants upon recertification do not qualify as an
Eligible Tenant, then the Owner shall ensure that the next available Rental Space shall be
rented as a Covenanted Space to ensure that the required percentage of Rental Spaces are
rented to Eligible Tenants. Owner may also as of any date determine that any existing
tenant of a Rental Space has become or is then presently certified as an Eligible Tenant
and such certification shall qualify the applicable Rental Space to become a Covenanted
Space.
9. Certificate of Continuing Program Compliance. Annually by January 31
of each year, or at any time upon the written request of Agency but not more frequently
than two (2) times per calendar year, Owner shall advise the Agency of the occupancy of
the Project by delivering a Certificate of Continuing Program Compliance in the form
attached hereto as Exhibit "C." certifying: (i) the number of Covenanted Spaces of the
Project which were occupied or deemed occupied pursuant to Section C.1 by an Eligible
Tenant during such period, and (ii) to the knowledge of Owner either (a) no umemedied
default has occurred under this Agreement, or (b) a default has occurred, in which event
the Certificate shall describe the nature of the default and set forth the measures being
taken by the Owner to remedy such default.
10. Maintenance of Records. Owner shall maintain complete and accurate
records pertaining to the Rental Spaces, and shall permit any duly authorized
representative of the Agency to inspect the books and records of Owner pertaining to the
Project including, but not limited to, those records pertaining to the occupancy of the
Rental Spaces.
11. Reliance on Tenant Representations. Each lease for a Rental Space shall
contain a provision to the effect that Owner has relied on the income certification and
supporting information supplied by the tenant in determining qualification for occupancy
of the Rental Space as a Covenanted Space, and that any material misstatement in such
certification (whether or not intentional) will be cause for immediate termination of such
lease.
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12. Conflicts. The leasing preference provision set forth in Section C.6 shall
apply only in the event, and to the extent, such provisions are not in conflict with Internal
Revenue Code provisions or IRS regulations.
13. Agency Remedy For Excessive Rent Charge.
a. It shall constitute a default for Owner to charge or accept for a
Covenanted Space rent amounts in excess of the amount provided for in Section
C.3 of this Agreement subject to the provisions of Section C.l of this Agreement.
In the event that Owner charges or receives such higher rental amounts that are
not otherwise excused by the provisions of Section C.l, in addition to any other
remedy Agency shall have for such default, Owner shall be required to pay to
Agency the entire amount of rent received in excess of the amount permitted
pursuant to this Agreement.
b. It shall constitute a default for Owner to rent any Rental Spaces
necessary to meet the percentage requirement to a tenant who is not an Eligible
Tenant for the particular Covenanted Space pursuant to the rental rate
requirements set forth in Section C.3 of this Agreement subject to the provisions
of Section C.1 of this Agreement. In the event Owner rents a Covenanted Space
to an ineligible tenant not otherwise excused by the provisions of Section C.L, in
addition to any other equitable remedy Agency shall have for such default,
Owner, for each separate violation shall be required to pay to Agency an amount
equal to (i) two times the greater of(A) the total rent Owner received from such
ineligible tenant, or (B) the total rent Owner was entitled to receive for renting
that Covenanted Space, plus (ii) any relocation expenses actually paid by Agency
or City, if any, as a result of Owner having rented to such ineligible person and
provided that such relocation of an ineligible tenant is required solely for the
purpose of complying with the provisions of this Agreement after the expiration
of all notices of default and cure periods have been exhausted by Owner and
Owner remains unable to otherwise cure the default. .
C. It shall constitute a default for Owner to rent any of the
Covenanted Spaces in violation of the leasing preference requirements of Sections
C.6 of this Agreement. In the event Owner rents a Covenanted Space in violation
of the leasing preference requirements, in addition to any other equitable remedy
Agency shall have for such default, Owner, for each separate violation shall be
required to pay Agency an amount equal to two (2) months of rental charges for
the Covenanted Space with the highest rent. The terms of this Section C.14 shall
not apply if Owner rents to an ineligible person as a result of such person's fraud
or misrepresentation or unless otherwise excused by the provisions of Section
C.1.
THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH IN
SUBPARAGRAPHS (a) THROUGH (c) OF THIS SECTION C.13 (THE "DAMAGE
AMOUNTS") CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL
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DAMAGES THAT AGENCY WOULD SUFFER DUE TO THE DEFAULTS BY OWNER
SET FORTH IN SUBPARAGRAPHS (a) THROUGH (c), CONSIDERING ALL OF THE
CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE OF TEAS AGREEMENT,
INCLUDING THE RELATIONSHIP OF THE DAMAGE AMOUNTS TO THE RANGE OF
HARM TO AGENCY AND ACCOMPLISHMENT OF AGENCY'S PURPOSE OF
ASSISTING IN THE PROVISION OF AFFORDABLE HOUSING TO ELIGIBLE TENANTS
THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT
PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE
AMOUNTS SET FORTH IN THIS SECTION C.13 SHALL BE THE SOLE MONETARY
DAMAGES REMEDY FOR THE DEFAULTS SET FORTH IN THIS SECTION C.13, BUT
NOTHING IN THIS SECTION C.14 SHALL BE INTERPRETED TO LIMIT AGENCY'S
REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING ITS
INITIAL AT THE PLACES PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY
CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT
THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL WHO HAS EXPLAINED
THE CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO
THE TIME EACH EXECUTED THIS AGREEMENT.
OWNER'S INITIALS: AGENCY'S INITIALS:
D. MAINTENANCE.
1. Maintenance Obligation. Owner, for itself and its successors and assigns,
hereby covenants and agrees to maintain and repair or cause to be maintained and
repaired the Project and the Site and all related on-site improvements and landscaping
thereon, including, without limitation, buildings, parking areas, lighting, signs and walls
in a good condition and repair, free of rubbish, debris and other hazards to persons using
the same, and in accordance with all applicable laws, rules, ordinances and regulations of
all federal, state, and local bodies and agencies having jurisdiction, at Owner's sole cost
and expense. Such maintenance and repair shall include, but not be limited to, the
following: (i) sweeping and trash removal; (ii) the care and replacement of all shrubbery,
plantings, and other landscaping in a healthy condition; and (iii) the repair, replacement
and restriping of asphalt or concrete paving using the same type of material originally
installed, to the end that such pavings at all times be kept in a level and smooth condition.
In addition, Owner shall be required to maintain the Project in such a manner as to avoid
the reasonable determination of a duly authorized official of the City that a public
nuisance has been created by the absence of adequate maintenance such as to be
detrimental to the public health, safety or general welfare or that such a condition of
deterioration or disrepair causes appreciable harm or is materially detrimental to property
or improvements within one thousand (1,000) feet of such portion of the Project all in the
manner as required by applicable State law for declaring the existence of a public
nuisance by a municipality.
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2. Parking and Driveways. Owner shall use best efforts to keep the
driveways and traffic aisles on the Project clear and unobstructed at all times. No
vehicles or other obstruction shall project into any of such driveways or traffic aisles.
Vehicles associated with the operation of the Project, including delivery vehicles,
vehicles of employees and vehicles of persons with business on the Project shall park
solely on the Site.
3. Tenant Compliance. Owner shall provide any proposed tenants of any
portion of the Site with a copy of this Agreement and shall, prior to entering into any
lease agreement, have the proposed tenant execute an affidavit agreeing to comply with
the provisions of this Agreement. All lease agreements shall be in writing and shall
contain provisions which make compliance with the conditions of this Agreement express
covenants of the lease.
4. Right of Entry. In the event Owner fails to maintain the Project in the
above-mentioned condition, and satisfactory progress is not made in correcting the
condition within thirty (30) days from the date of written notice from Agency, City or
Agency may, at their option, and with notice to Owner as required by law, declare the
unperformed maintenance to constitute a public nuisance in accordance with the City
municipal code requirement. Thereafter, either Agency or City, their employees,
contractors or agents, may cure Owner's default by entering upon the Site and performing
the necessary landscaping and/or maintenance. The Agency or City shall give Owner, its
representative or the residential manager reasonable notice of the time and manner of
entry, and entry shall only be at such times and in such manner as is reasonably necessary
to carry out this Agreement. Owner shall pay such actual costs as are reasonably paid by
Agency or City for such maintenance, including reasonable attorneys' fees and costs.
5. Lien. If such costs are not reimbursed within thirty (30) days after
Owners' receipt of notice thereof, the same shall be deemed delinquent, and the amount
thereof shall bear interest thereafter at a rate of the lower of ten percent (10%) per annum
or the legal maximum until paid. Any and all delinquent amounts, together with said
interest, costs and reasonable attorney's fees, shall be a personal obligation of Owner as
well as a lien and charge, with power of sale, upon the property interests of Owner, and
the rents, issues and profits of the Site. City and/or Agency may bring an action at law
against Owner obligated to pay any such sums or foreclose the lien against Owner's
property interests in the Site. Any such lien may be enforced by sale by the City or
Agency following recordation of a Notice of Default of Sale given in the manner and
time required by law as in the case of a deed of trust; such sale to be conducted in
accordance with the provisions of Section 2924, et seq., of the California Civil Code,
applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any
other manner pennitted by law; provided, however, that there shall be no enforcement
nor any other action to exercise any power of sale so long as any of the Board Financing
documents are outstanding as set forth in the recitals hereto.
Any monetary lien provided for herein shall be subordinate to any bona fide
mortgage or deed of trust covering an ownership interest or leasehold or subleasehold
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estate in and to the Site approved by Agency pursuant to the DDA, and any purchaser at
any foreclosure or trustee's sale (as well as any deed or assignment in lieu of foreclosure
or trustee's sale) under any such mortgage or deed of trust shall take title free from any
such monetary lien, but otherwise subject to the provisions hereof; provided that, after the
foreclosure of any such mortgage and/or deed of trust, all other assessments provided for
herein to the extent they relate to the expenses incurred subsequent to such foreclosure,
assessed hereunder to the purchaser at the foreclosure sale, as owner of the subject Site
after the date of such foreclosure sale, shall become a lien upon such Site upon
recordation of a Notice of Assessment or Notice of Claim of Lien as herein provided.
E. MANAGEMENT.
1. Approval of Project Manager; Designation of Resident Manager. Subject
to the terms and conditions contained herembelow and the terms and conditions set forth
in the Bond Financing documents, Owner shall at all times during the operation of the
Project pursuant to this Agreement retain an entity to perform the management and/or
supervisory functions ("Project Manager") with respect to the operation of the Project
including day-to-day administration, maintenance and repair. Owner shall, before
execution or any subsequent amendment or replacement thereof, submit and obtain
Agency's written approval of a management contract ("Management Contract") entered
into between Owner and a Project Manager reasonably acceptable to Agency and such
Management Contract can only be rejected by Agency for cause as shall be specified by
Agency in writing as to the precise basis for determining such cause. Subject to any
regulatory or licensing requirements of any other applicable governmental agency, the
Management Contract may be for a term of up to fifteen (15) years and may be renewed
for successive terms in accordance with its terms, but may not be amended or modified
without the reasonable written consent of Agency. The Management Contract shall also
provide that the Project Manager shall be subject to termination for failure to meet project
maintenance and operational standards set forth herein or in other agreements between
Owner and Agency unless cure cannot be accomplished within said 60 days and cure is
commenced within said 60 days and diligently pursued. Owner shall promptly ternninate
any Project Manager which commits or allows such failure, unless the failure is cured
within a reasonable period in no event exceeding 60 days from Project Manager's receipt
of notice of the failure from Owner or Agency. Owner's obligation to retain a Project
Manager shall remain in force and effect for the same duration as the use covenants set
forth in Section B of this Agreement. Notwithstanding anything to the contrary in this
Section, the Project may be self-managed by Owner until a Project Manager has been
initially appointed or thereafter for any subsequent Project Manager with the prior
approval of the Agency Executive Director. Any change in the Project Manager shall be
approved, in writing, by the Executive Director, which approval shall not be
unreasonably withheld.
In addition to the Project Manager, one or two Resident Manager(s) shall be
designated by Owner as determined to be necessary by Owner or Project Manager, with
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written notice to Agency of the Resident Managers' names, addresses and telephone
numbers.
2. Serious Mismanagement. In the event of "Serious Mismanagement" (as
that term is defined below) of the Project, Agency shall have the authority to require that
such Serious Mismanagement cease immediately, and further to require the immediate
replacement of the Project Manager or Resident Managers. For purposes of this
Agreement the term "Serious Mismanagement" shall mean management of the Project in
a manner which violates the terms and/or intent of this Agreement and/or the
Management Contract to operate an affordable mobile home project with the exterior
landscaping and recreation room to be constricted within three (3) years of the transfer of
Property to Owner at a safe and attractive standard, and shall include, but is not limited
to, the following:
a. Knowingly leasing to ineligible tenants or tenants whose income
exceeds the prescribed levels when the required number of Covenanted spaces
have not been met;
b. Failing to timely maintain the Project and the Site in the manner
required by this Agreement (including applicable cure periods);
c. Failing to timely submit the reports as required by this Agreement
or failing to submit materially complete reports (including applicable cure
periods);
d. Fraud in connection with any document or representation relating
to this Agreement or embezzlement of Project monies; and
e. Failing to undertake reasonable means in cooperation with the
City's Police Department in maintaining a crime-free environment on the Site.
G. COMPLIANCE WITH LAWS.
1. State and Local Laws. Owner shall comply with all ordinances,
regulations and standards of the City and Agency applicable to the Site. Owner shall
comply with all rules and regulations of any assessment district of the City with
jurisdiction over the Site but nothing contained herein shall preclude Owner from
protesting or opposing either the formation or administration or the levy of assessments
of any such assessment district of the City.
2. Lease Approval. Agency shall have the right but is not required to
approve any lease forms, revisions, amendments or modification made to same, used by
the Project Manager or Resident Managers for leasing spaces within the Rental Spaces.
H. INSURANCE.
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1. Duty to Procure Insurance. Owner covenants and agrees for itself, and its
assigns and successors-in-interest in the Site that from acquisition of the Project and
continuing thereafter until the expiration of the Term of this Agreement, Owner or such
successors and assigns shall procure and keep in full force and effect or cause to be
procured and kept in full force and effect for the mutual benefit of Owner and Agency,
and shall provide Agency evidence reasonably acceptable to Executive Director,
insurance policies meeting the minimum requirements set forth below:
a. Commercial General Liability insurance with respect to the Site
and the operations of or on behalf of Owner, in an amount not less than Two
Million Dollars ($2,000,000) per occurrence combined single limit including
products, completed operations, contractual, bodily injury, personal injury, death
and property damage liability per occurrence, subject to such increases in amount
as Agency may reasonably require from time to time. The insurance to be
provided by Owner may provide for a deductible or self-insured retention of not
more than Ten Thousand Dollars ($10,000), with such maximum amount to
increase at the same rate as the periodic increases in the minimum amount of total
insurance coverage set forth above.
b. With respect to the improvements and any fixtures and furnishings
to be owned by Owner on the Site, All Risk Property insurance against fire,
extended coverage, vandalism, and malicious mischief, and such other additional
perils, hazards, and risks as now are or may be included in the standard "all risk"
form in general use in Riverside County, California, with the standard fonu fire
insurance coverage in an amount equal to fall actual replacement cost thereof, as
the same may change from time to time. The above insurance policy or policies
shall include coverage for earthquake to the extent generally and commercially
available at commercially reasonable rates, as determined by Owner and Owner
shall not be deemed to be in breach of this Agreement or be in default of any
provision hereunder if Owner does not procure earthquake coverage because such
is not available to Owner at commercially reasonable rates as determined by
Owner. Agency shall be a loss payee under such policy or policies and such
insurance shall contain a replacement cost endorsement.
C. All policies of insurance required to be carried by Owner shall be
written by responsible and solvent insurance companies licensed in the State of
California and having a policy-holder's rating of A or better, in the most recent
addition of`Best's Key Rating Guide -- Property and Casualty." A copy of each
paid-up policy evidencing such insurance (appropriately authenticated by the
insurer) or a certificate of the insurer, certifying that such policy has been issued,
providing the coverage required herein, and containing the provisions specified
herein, shall be delivered to Agency prior to its issuance of the Release of
Construction Covenants for the Project and thereafter, upon renewals, not less
than thirty (30) days prior to the expiration of coverage. Agency may, at any
time, and from time to time, inspect and/or copy any and all insurance policies
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required to be procured by Owner hereunder. In no event shall the limits of any
policy be considered as limiting the liability of Owner hereunder.
d. Each insurance policy required to be carried by Owner pursuant to
this Agreement shall contain the following endorsements, provisions or clauses:
(1) The insurer will not cancel or materially alter the coverage
provided by such policy in a manner adverse to the interest of the insured
without first giving Agency a minimum of thirty (30) days prior written
notice by certified mail, return receipt requested; and
(2) A waiver by the insurer of any right to subrogation against
Agency, its agents, employees, or representatives, which arises or might
arise by reason of any payment under such policy or policies or by reason
of any act or omission of Agency, its agents, officers, members, officials,
employees, or representatives.
(3) The City, Agency, their respective agents, officers,
members, officials, employees, volunteers, and representatives shall be
named insureds on the Commercial General Liability policies.
(4) The City and Agency shall be loss payees on the All Risk
Property insurance policies.
(5) Coverage provided by these policies shall be primary and
non-contributory to any insurance carried by the City, Agency, their
officers, officials, employees, volunteers, agents, or representatives.
(6) Failure to comply with reporting provisions shall not affect
coverage provided to City, Agency, their officers, employees, volunteers,
agents, or representatives.
e. Agency's Executive Director may require an increase in the
minimum limits of the insurance policies required by this Section as such
increases are reasonably determined necessary to provide for changes in cost of
living, liability exposure, the market for insurance, or the use of the Site. Such
increases in insurance coverage shall be effective upon receipt of written notice
from the Executive Director, provided that Owner shall have the right to appeal a
determination of increased coverage by the Executive Director to the Agency
Board of Directors within thirty (30) days of receipt of notice from the Executive
Director.
2. Failure to Procure Insurance. If Owner fails to procure and maintain the
above-required insurance despite its availability, then Agency, in addition to any other
remedy which Agency may have hereunder for Owner's failure to procure, maintain,
and/or pay for the insurance required herein, may (but without any obligation to do so) at
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any time or from time to time, after thirty(30) days written notice to Owner, procure such
insurance and pay the premiums therefore, in which event Owner shall immediately
repay Agency all sums so paid by Agency together with interest thereon at the maximum
legal rate. Owner shall not be obligated to repay Agency any sum paid by Agency for
earthquake insurance if Owner has determined pursuant to Section H.I.b. above that such
coverage was not available to Owner at commercially reasonable rates.
I. OBLIGATION TO REPAIR.
I. Obligation to Repair and Restore Dame Due to Casualty Covered by
Insurance. Subject to Section I.3. below, if the Project shall be totally or partially
destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to
be insured against by Owner, Owner shall promptly proceed to obtain insurance proceeds
and take all steps necessary to begin reconstruction and, immediately upon receipt of
insurance proceeds, to promptly and diligently commence the repair or replacement of
the Project to substantially the same condition as the Project is required to be maintained
in pursuant to this Agreement, only if, the insurance proceeds and such other funds as
may be available to Owner are sufficient to cover the actual cost of repair, replacement,
or restoration, and Owner shall complete the same as soon as possible thereafter,
provided that adequate funds are so available, so that the Project can continue to be
operated and occupied as an affordable housing project in accordance with this
Agreement. Subject to extensions of time for "force majeure" events described in the
DDA, in no event shall the repair, replacement, or restoration period exceed one (1) year
from the date Owner obtains insurance proceeds unless Agency's Executive Director, in
his or her sole and absolute discretion, approves a longer period of time. Agency shall
cooperate with Owner, at no expense to Agency, in obtaining any governmental permits
required for the repair, replacement, or restoration. If, however, the then-existing laws of
any other governmental agencies with jurisdiction over the Property do not permit the
repair, replacement, or restoration, Owner may elect not to repair, replace, or restore the
Project by giving notice to Agency (in which event Owner shall be entitled to all
insurance proceeds but Owner shall be required to remove all debris from the Site) or
Owner may reconstruct such other improvements on the Site as are consistent: with
applicable land use regulations and approved by the City, Agency, and the other
governmental agency or agencies with jurisdiction.
If after notice from Agency to Owner given in the manner required pursuant to
this Agreement, Owner fails to obtain insurance as required by the DDA or this
Agreement (and Agency has not procured such insurance and charged Owner for the
cost), Owner shall be obligated to reconstruct and repair any partial or total damage to the
Project and improvements located on the site in accordance with this Section I.I.
2. Continued Operations. During any period of repair, Owner shall continue,
or cause the continuation of, the operation of the Project to the extent reasonably
practicable from the standpoint of prudent business management.
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3. Damage or Destruction Due to Cause Not Required to be Covered by
Insurance. If the improvements comprising the Project are completely destroyed or
substantially damaged by a casualty for which Owner is not required to (and has not)
insure against, then Owner shall not be required to repair, replace, or restore such
improvements and may elect not to do so by providing Agency with written notice of
election not to repair, replace, or restore within ninety (90) days after such substantial
damage or destruction. In such event, Owner shall remove all debris from the Property.
As used in this Section I.3., "substantial damage" caused by a casualty not required to be
(and not) covered by insurance shall mean damage or destruction which is ten percent
(10%) or more of the replacement cost of the improvements comprising the Project. In
the event Owner does not timely elect not to repair, replace, or restore the improvements
as set forth in the first sentence of this Section I.3., Owner shall be conclusively deemed
to have waived its right not to repair, replace, or restore the improvements and thereafter
Owner shall promptly commence and complete the repair, replacement, or restoration of
the damaged or destroyed improvements in accordance with Section I.I. above and
continue operation of the Project as a mobile home park during the period of repair, if
and to the extent practicable under the circumstances in accordance with Section I.2.
above.
J. LIMITATION ON TRANSFERS.
The Owner covenants that Owner shall not transfer the Site or any of its interests therein
except as provided in this Section.
I. Transfer Defined. As used in this Section, the term "Transfer" shall
include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance
of this Agreement, the Site, or the improvements thereon. A Transfer shall also include
the transfer to any person or group of persons acting in concert of more than twenty-five
percent (25%) (in the aggregate) of the present ownership and/or control of any person or
entity constituting Owner or its general partners, taking all transfers into account on a
cumulative basis, except transfers of such ownership or control interest between members
of the same immediate family, or transfers to a trust, testamentary or otherwise, in which
the beneficiaries are limited to members of the transferor's immediate family, or among
the entities constituting Owner or its general partners or their respective shareholders. In
the event any entity constituting Owner, its successor or the constituent partners of
Owner or any successor of Owner, is a corporation or trust, such transfer shall refer to the
transfer of the issued and outstanding capital stock of such corporation, of beneficial
interests of such trust; in the event that any entity constituting Owner, its successor or the
constituent partners of Owner or any successor of Owner is a limited or general
partnership, such transfer shall refer to the transfer of more than twenty-five percent
(25%) of such limited or general partnership interest; in the event that any entity
constituting Owner, its successor or the constituent partners of Owner or any successor of
Owner is a joint venture, such transfer shall refer to the transfer of more than twenty-five
percent (25%) of the ownership and/or control of any such joint venture partner, taking
all transfers into account on a cumulative basis.
I
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2. Agency Approval of Transfer Required. Owner shall not Transfer the Site
or any of Owner's rights hereunder, or any interest in the Site or in the improvements
thereon, directly or indirectly, voluntarily or by operation of law, except as provided
below, without the prior written approval of Agency, and if so purported to be
Transferred, the same shall be null and void. In considering whether it will grant
approval of any Transfer by Owner of its interest in the Site, Agency shall consider
factors such as (i) whether the completion of the Project is jeopardized; (ii) the financial
credit, strength, and capability of the proposed transferee to perform Agency's
obligations hereunder; and (iii) the proposed transferee's experience and expertise in the
planning, financing, development, ownership, and operation of similar projects.
In the absence of specific written agreement by Agency, no transfer by Owner of
all or any portion of its interest in the Site (including without limitation a transfer not
requiring Agency approval hereunder) shall be deemed to relieve it or any successor
party from the obligation to complete the Project or any other obligations under this
Regulatory Agreement. In addition, no attempted transfer of any of Owner'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.
3. Exceptions. The foregoing prohibition shall not apply to any of the
following:
(a) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for financing for additional physical improvements and related soft
costs for the Project, the acquisition of mobile homes by Owner for resale or lease
within the Project, and working capital financings, but Owner shall notify Agency
in advance of any such mortgage, deed of trust, or other form of conveyance for
financing pertaining to the Site.
(b) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for restructuring or refinancing of any amount of indebtedness
described in subsection (a) above, 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 the Site and construction
of 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.
(c) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for financing provided that the principal amount of the loan does not
exceed eighty-five percent (85%) of the value of the land and improvements
thereon.
(d) The granting of easements to any appropriate governmental agency
or utility to facilitate the development of the Site.
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(e) 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.
(f) A transfer of forty-nine percent (49%) or more ownership interest
to a member of the transferor's immediate family, a trust, testamentary or
otherwise, in which immediate family members of the transferor are the sole
beneficiaries, or a corporation or partnership in which the immediate family
members or shareholders of the transferor have controlling majority interest of
more than fifty percent (50%).
(g) A change in the respective percentage ownership interests
exclusively of the present owners of Owner (as of the date of this Agreement),but
this shall not authorize the transfer of any interest to any person or entity who is
not a present owner of Owner.
K. ENFORCEMENT. In the event Owner defaults in the performance or observance
of any covenant, agreement or obligation of Owner pursuant to this Agreement, and if such
default remains uncured for a period of thirty (30) days after written notice thereof shall have
been given by Agency, or, in the event said default cannot be cured within said time period,
Owner has failed to commence to cure such default within said thirty (30) days and thereafter
fails to diligently prosecute said cure to completion, then Agency shall declare an "Event of
Default" to have occurred hereunder, and, at its option, may take one or more of the following
steps:
1. By mandamus or other suit, action or proceeding at law or in equity,
require Owner to perform its obligations and covenants hereunder or enjoin any acts or
things which may be unlawful or in violation of this Agreement; or
2. Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of Owner hereunder; or
3. Enter the Site and cure the Event of Default as provided in Section E.
hereof.
Except as otherwise expressly stated in this Agreement, the rights and remedies of
the parties are cumulative, and the exercise by any 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 another party.
L. NONDISCRIMINATION. 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,
99991001/19142 v5 ATTACHMENT No.7
(Previously 918406 v3) TO REGULATORY AGR
TOSU MSEDDA
PAGE 19 of 33
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tenure or enjoyment of the Site, or any part thereof, nor shall Owner, 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 Site, or any part thereof(except as permitted by
this Agreement).
M. COVENANTS TO RUN WITH THE LAND. Owner hereby subjects the Site to
the covenants, reservations, and restrictions set forth in this Agreement. Agency and Owner
hereby declare their express intent that all such covenants, reservations, and restrictions shall be
deemed covenants running with the land and shall pass to and be binding upon the Owner's
successors in title to the Site; provided, however, that on the termination of this Agreement said
covenants, reservations and restrictions shall expire. All covenants without regard to technical
classification or designation shall be binding for the benefit of the Agency, and such covenants
shall run in favor of the Agency for the entire term of this Agreement, without regard to whether
the Agency is or remains an owner of any land or interest therein to which such covenants relate.
Each and every contract, deed or other instrument hereafter executed covering or conveying the
Site or any portion thereof shall conclusively be held to have been executed, delivered and
accepted subject to such covenants, reservations, and restrictions, regardless of whether such
covenants, reservations, and restrictions are set forth in such contract, deed or other instrument.
Agency and Owner hereby declare their understanding and intent that the burden of the
covenants set forth herein touch and concern the land in that Owner's legal interest in the Site is
rendered less valuable thereby. Agency and Owner hereby further declare their understanding
and intent that the benefit of such covenants touch and concern the land by enhancing and
increasing the enjoyment and use of the Project by Eligible Tenants, the intended beneficiaries of
such covenants, reservations, and restrictions, and by furthering the public purposes for which
the Agency was formed.
Owner, in exchange for the Agency entering into the DDA, hereby agrees to hold,
sell, and convey the Site subject to the terms of this Agreement. Owner also grants to the
Agency and the City the right and power to enforce the terms of this Agreement against the
Owner and all persons having any right, title or interest in the Site or any part thereof, their heirs,
successive owners and assigns.
N. INDEMNIFICATION. Owner agrees for itself and its successors and assigns to
indemnify, defend, and hold harmless Agency, City, and their respective officers, members,
officials, employees, agents, volunteers, and representatives from and against any loss, liability,
claim, or judgment relating in any manner to the Project excepting only any such loss, liability,
claim, or judgment arising out of the intentional wrongdoing or gross negligence of Agency,
City, or their respective officers, officials, employees, members, agents, volunteers, or
representatives. Owner, while in possession of the Site, and each successor or assign of Owner
while in possession of the Site, shall remain fully obligated for the payment of property taxes and
assessments in connection with the Site. The foregoing indemnification, defense, and hold
harmless agreement shall only be applicable to and binding upon the party then owning the Site
or applicable portion thereof.
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(Previously#18406 v3) TO Gc AToxY ACA
TO SUNIUSE QUA
PACE 20 of 33
Draft of 11/25/03
O. ATTORNEYS' FEES. In the event that a party to this Agreement brings an
action against the other party hereto by reason of the breach of any condition, covenant,
representation or warranty in this Agreement, or otherwise arising out of this Agreement, the
prevailing party in such action shall be entitled to recover from the other reasonable expert
witness fees, and its attorney's fees and costs. 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, including the conducting of discovery.
P. AMENDMENTS. This Agreement shall be amended only by a written
instrument executed by the parties hereto or their successors in title, and duly recorded in the real
property records of the County of Riverside.
Q. NOTICE. Any notice required to be given hereunder shall be made in writing and
shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt
requested, at the addresses specified below, or at such other addresses as may be specified in
writing by the parties hereto:
Agency: Community Redevelopment Agency of the City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
Copy to: Aleshire &Wynder, LLP
18881 Von Karman, Suite 400
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
Owner: Sunrise Village Mobile Home Park Corporation
1551 No. Tustin Avenue, Suite 910
Santa Ana, California 92705-8637
Attn: Executive Director
Copy to:
Attn:
The notice shall be deemed given three (3) business days after the date of mailing, or, if
personally delivered, when received.
R. SEVERABILITY/WAIVER/INTEGRATION.
1. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof
shall not in any way be affected or impaired thereby.
9999/001/19142 v5 ATTACHMENT No.7
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TO SU IRISE DDA
PACE21OF33
Draft of 11/25/03
2. Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate this Agreement nor shall it be considered a waiver of
any other covenants or conditions, nor shall the delay or forbearance by either party in
exercising any remedy or right be considered a waiver of, or an estoppel against, the later
exercise of such remedy or right.
3. Integration. This Agreement contains the entire Agreement between the
parties and neither party relies on any warranty or representation not contained in this
Agreement.
S. FUTURE ENFORCEMENT. The parties hereby agree that should the Agency
cease to exist as an entity at any time during the term of this Agreement, the City of Palm
Springs shall have the right to enforce all of the terms and conditions herein, unless the Agency
had previously specified another entity to enforce this Agreement,
T. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California. In the event here are any provisions of this Agreement which are inconsistent with
the provisions of the DDA, the provisions of this Agreement shall control as to any such
inconsistent provisions that any be contained in the DDA. To the extent that any of the
references to the applicable federal law an the effects of any HUD or FHA restrictions applicable
to the Bond Financing documents are inconsistent, the provisions of the Bond Financing
documents shall control as to any inconsistent provisions contained in this Agreement, and all
provisions of federal law, including the applicable laws and regulations pertaining to the
intended HUD and FHA financings for the Project, shall control as to any inconsistent provisions
contained in this Agreement.
U. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one original and all of which shall be one and the
same instrument.
V. HUD AND FHA REQUIREMENTS; SUBORDINATION.
1. The rider provided by HUD is attached hereto as Exhibit "D" and
incorporated by this reference.
2. The Owner and the Agency each covenants that it will not knowingly take
or permit any action that would adversely affect the exemption from federal income
taxation of interest on the Bonds. Moreover, the Owner and the Agency each covenants
to take any lawful action (including amendment of this Agreement as may be necessary,
in the opinion of Bond Counsel) to comply fully with all applicable rules, rulings,
policies, procedures, regulations or other official statements promulgated or proposed by
the Department of the Treasury or the Internal Revenue Service from time to time
pertaining to obligations the interest on which is tax-exempt under Section 142(d) or any
successor provision of the Code and affecting the Project.
9999/001/19142 v5 ATTACMAENTT No.7
(PICviously#18406 v3) TO REGULATORY AGR
TO SUNRISE DDA
PAGE 22 OF 33
Draft of 11/25/03
3. The Owner covenants and agrees to give written notice to the Issuer of any
violation of the Owner's obligations hereunder within five (5) days after first discovering
any such violation. If any such violation is not corrected to the satisfaction of the Issuer
within the period of time specified by the Issuer, which shall be at least thirty (30) days
after the date any notice to the Owner is mailed, or within such further time as the Issuer
determines is necessary to correct the violation without loss of tax exemption of interest
on the Bonds, but not to exceed any limitations set by applicable regulations, without
further notice the Issuer shall declare a default under this Agreement effective on the date
of such declaration of default. Upon such default the Owner hereby agrees to pay the
Issuer an amount equal to any rents or other amounts received by the Owner for any units
in the Project which were in violation of this Agreement during the period such violation
continued. The Owner understands and agrees that the Issuer may apply to any court,
state or federal, for specific perfonnance of this Agreement or an injunction against any
violation of this Agreement, or any other remedies at law or in equity or any such other
actions as shall be necessary or desirable so as to correct non-compliance with this
Agreement.
4. The provisions of this Agreement are subject and subordinate to the
National Housing Act, all applicable HUD insurance (and Section S of the U.S. Housing
Act of 1937, if applicable) regulations and related administrative requirements and the
FHA Loan Documents (as defined in connection with the bond Financing) and in the
event of any conflict between the provisions of this Agreement and the provisions of the
National Housing Act, any applicable HUD (and Section 6 of the U.S. Housing Act of
1937, if applicable) regulations and related Housing Act, HUD (and Section 8 of the U.S.
Housing Act of 1937, if applicable) regulations and related administrative requirements
and FHA Loan documents (as defined in the Bond Financing documents shall be
controlling in all respects with the exception that this Agreement shall continue for the
fifty-five (55) year term thereby extending beyond the term of the Bond Financing
documents.
5. This Regulatory Agreement shall not be construed to restrict or adversely
affect the duties and obligations of the Lender under the contract of mortgage insurance
between the Lender and HUD with respect to the Mortgage Loan (as defined in the FHA
Loan Documents).
6. Any project funds held by the Lender for or on behalf of the Owner in
connection with the Mortgage Loan under the contract of mortgage insurance between
the Lender and HUD shall be maintained separate and apart from the funds established
and held by the Trustee (as defined in the FHA Loan Documents) for the benefit of the
owners of the bonds and the various escrows and funds, if any, under the Indenture (as
defined in the FHA Loan Documents).
7. Neither the Issuer, nor the Trustee, nor any of the owners of the Bonds has
or shall be entitled to assert any claim against the Mortgage (as defined in the FHA Loan
Documents), any reserve or deposit required by HUD in connection with the Mortgage
Loan, or the rents or income of the Project other than available "Surplus Cash" (as
9999/001/19142 v5 ATTACHMENT No.7
(Previously#18406 v3) To REGc ATonv Aca
TOSI SE DDA
PAGE 23 OF 33
Draft of 11/25/03
defined in the FHA Loan Documents). The preceding sentence shall not be deemed to
restrict the rights of the Agency, the Trustee or the Lender or any of the owners of the
Bonds to proceed under any separate agreement against any party other than the Owner
who has guaranteed the performance of the Owner's obligations under this Agreement.
8. The monetary obligations of the Owner, if any, contained in this
Agreement shall be limited obligations, payable solely from the income and assets of the
Project, and neither the Owner nor any successor assignee thereof, nor any partner or
employee of the Owner, nor any successor or assignee thereof, shall have any personal
liability for the satisfaction of any obligations of the Owner or any claim arising out of
this Agreement; and neither the Issuer nor the Tnistee shall be entitled to assert any claim
against the Mortgage, any reserve or deposit required by HUD in connection with the
Mortgage Loan, or the rents or income of the Project other than available "Surplus Cash."
9. Any default by the Owner under this Agreement shall not constitute a
default under the FHA Loan Documents.
10. The Owner shall not be in violation of this Agreement if it shall take (or
refrain from taking) any actions prohibited(or required)by HUD pursuant to the National
Housing Act, applicable HUD (and Section 8 of the U.S. Housing Act of 1937, if
applicable) insurance regulations and related administrative requirements and the FHA
Loan Documents.
It. This Agreement and the restrictions hereunder are subject and subordinate
to the lien and security interest granted by the Mortgage. In the event of foreclosure or
transfer of title by deed in lieu of foreclosure, this Agreement and the restrictions
hereunder shall automatically and immediately terminate and shall thereafter be of no
further force and effect.
12. This Agreement may not be amended without the prior written approval of
HUD.
13. The provisions of this Agreement shall inure to the benefit of HUD, its
successors and assigns.
14. With the exception of the fifty-five (55) year term of the covenants, in the
event that any covenant or provision contained in this Agreement is more stringent or
burdensome than the minimum requirements, as in effect on the date hereof, imposed for
the financing of multifamily residential rental housing developments with bonds which
are tax-exempt pursuant to the Internal Revenue Code (and implementing regulations),
any such covenant or provision herein which is more stringent or burdensome shall
automatically become and be deemed null and shall be reduced to and be replaced by the
comparable minimum requirement provided for in the Code (and implementing
regulations) in effect on the date of execution of this Agreement, as if the same were fully
set forth at length herein.
9999/001/19142 v5 ATTACHMENT No. 7
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TO SUNRISE DDA
PAGE 24 of 33
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15. In consideration of HUD's agreeing to insure the Mortgage Loan, HUD
shall have the right to require the Agency to remove or void any restrictions that exceed
the requirements of the Code upon a determination by HUD that the restriction(s) is
threatening the financial viability of the Project (i.e., impairing the Owner's ability to
sustain a level of income sufficient to meet all financial obligations of the Project,
including debt service costs, HUD-required escrows, and Project operating expenses). In
the absence of the Agency's compliance with a HUD request to take appropriate action to
unilaterally remove or void the restriction(s), the Agency understands and agrees that
HUD may take the appropriate action to unilaterally remove or void the restriction(s) and
that HUD shall not have to look any further than the legal instrument containing the
restriction(s) for the power to remove or void it.
In the event of any conflict between the provisions of this Section and the
provisions contained in any other Section of this Agreement, the provisions of this
Section shall govern and be controlling in all respects.
[END - SIGNATURES ON NEXT PAGE]
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9999/001/19142 v5 ATTACHMENT No.7
(Previously#19406 v3) Toa GU ATORYAGR
TO SUNRISE DDA
PAGE 25 GE 33
Draft of 11/25/03
IN WITNESS WHEREOF, the Agency, City and Owner have executed this Regulatory
Agreement and Declaration of Covenants and Restrictions by duly authorized representatives on
the date first written hereinabove.
"CITY"
CITY OF PALM SPRINGS
Date Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
ALESHIRE &WYNDER, LLP
David J. Aleshire, City Attorney
"AGENCY"
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,
a public body corporate and politic
Date Chair
I
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE &WYNDER, LLP
David J. Aleshire, Agency Counsel
9999/001119142 v5 ATTACHMENT No.7
(Previously 918406 v3) TO REGU ATORY AGR
TO SUNRISE OOA
PACE 26 oR 33
Dlall of 11/25/03
"OWNER"
SUNRISE VILLAGE MOBILE HOME PARK
CORPORATION, a California nonprofit
corporation
Date
Executive Director
[END OF SIGNATURES]
9999/001/19142 v5 ATTACHMENT No.7
(Previously 418406 v3) TO MGG ATORY AGR
TO SU MJSE DDA
PAGE 27 oa 33
Draft of 11/25/03
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, personally appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, personally appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
9999/001/19142 vs ATTACHMENT No.7
(Previously#18406 v3) TO REGULATORY AOR
TO SUNRISE DDA
PAoE 28 of 33
Draft of 11/25/03
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
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[SEAL]
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9999/001/19142 v5 ATTAMMENT No.7
(Previously 918406 v3) TO REGULATORY AGR
TO SUNRISE DDA
PAGE 29 OF 33
Draft of 11/25/03
EXHIBIT"A"
LEGAL DESCRIPTION OF SITE
That certain real property located in the City of Palm Springs, County of Riverside, State
of California, more particularly described as:
[INSERT LEGAL DESCRIPTION]
9999/001/19142 v5 EXfiIBIT"A"(Paee 1 of 11
(Previously#19406 A) ATTACFIMENTNo.7
TO REGULATORY AGR
TO SUNRISE DDA
PAoE 30 of 33
Draft of 11/25/03
EXHIBIT `B"
DESCRIPTION OF PUBLIC PROPERTY
[INSERT DESCRIPTION]
9999/001/19142 v5 EXHD31T'B"(Page 1 of 1)
(Previously#18406 v3) ATTACHMENT No.7
TOREGULATORYAGR
TO SUNRISE DDA
PACE 31 of 33
Draft of 11/25/03
EXHIBIT "C"
Period Covered
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA
The undersigned, SUNRISE VILLAGE MOBILE HOME PARK CORPORATION, a
California nonprofit corporation (the "Owner"), has read and is thoroughly familiar with the
provisions of the Disposition and Development Agreement ("DDA") and documents referred to
therein executed by Owner and The Community Redevelopment Agency of the City of Palm
Springs ("Agency") including but not limited to the Regulatory Agreement, as such term is
defined in the DDA.
As of the date of this Certificate, the following Covenanted Spaces in the Project are: (i)
occupied by Eligible Tenants (as defined in the Regulatory Agreement), or (ii) currently vacant
and being held available for such occupancy and have been so held continuously since the date
an Eligible Tenant vacated such Covenanted Space:
Occupied Vacant
Eligible Tenants
As of the date of this Certificate, the following are numbers of Very Low Income Tenants
and Low Income Tenants who commenced occupancy of Covenanted Spaces during the
preceding year:
Very Low Income Low Income
Tenants Tenants
Unit Nos. Unit Nos.
Attached is a separate sheet (the "Occupancy Summary") listing, among other items, the
following information for each Unit: the number of each Unit, the occupants of each Unit, the
rental paid for each Unit, and the size and number of bedrooms of each Unit. The Owner
certifies that the information contained in the Occupancy Summary is true and accurate.
9999/001/19142 v5 EXHIBIT"C"(Pape 1 of 2)
(Previously#18406 0) ATTACFIMENT No.7
III TO REGULATORY AGR
TO SUNME DDA
PAGE 32 of 33
Draft of 11/25/03
The undersigned hereby certifies that (1) a review of the activities of the Owner during
such period and of the Owner's performance under the DDA and the documents referred to
therein has been made under the supervision of the undersigned, and(2) to the best knowledge of
the undersigned, based on the review described in clause (1) hereof, the Owner is not in default
under any of the terms and provisions of the above documents (or describe the nature of any
detail and set forth the measures being taken to remedy such defaults).
SUNRISE VILLAGE MOBILE HOME PARK
CORPORATION, a California nonprofit
corporation
By:
[END OF SIGNATURES]
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9999/001/19142 v5 HXHIHIT"C"(Page 1 of 2)
(Previously#18406 v3) ATTACHMENT No.7
TO REGULATORY AGR
TO SUNME DDA
PAGE 33 OF 33
Draft of 11/25/03
ATTACHMENT NO. 8
SUNRISE DDA
RESIDUAL NOTE
[SEE FOLLOWING PAGES]
i
li
it
9999/001/19142 v3 ATTACHMENT NO.8
(Previously#18406 v3) To SUNRISE DDA
PAGE 1 OF 5
Draft of 10/22/02
RESIDUAL NOTE
$392,040.00 ("Loan Amount")
, 2002 ("Note Date")
FOR VALUE RECEIVED, the undersigned (herein, the "Maker") hereby promises to
pay to the order of THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS, a public body, corporate and politic ("Holder" or "Agency"), at a place
designated by Holder, the principal sum of THREE HUNDRED NINETY-TWO THOUSAND
FORTY DOLLARS ($392,040) ("Note Amount"), plus accrued interest, or such lesser amount
which shall from time to time be owing hereunder pursuant to the terms hereof. The principal
sum hereof shall be disbursed pursuant to the terms and conditions set forth in that certain
Disposition and Development Agreement by and among Maker and Holder and the
Owner/Lessee ("Agency"), dated , 2002, ("Agreement"), pertaining to
Maker's acquisition of certain real property defined in the Agreement as the "Site."
Reference is also made to the following additional agreements and documents involving
Maker and Holder and/or pertaining to the Site:
(i) Deed of Trust with Assignment of Rents and Rider Attached Hereto Containing
Terms Including Security Agreement and Fixture Filing, by and between Maker
as borrower, Holder as beneficiary, and as Trustee, dated
, and recorded on , as
Instrument No. , in the Office of the Riverside
County Recorder ("Deed of Trust"). The Deed of Trust partially secures
repayment of this Note.
(ii) Regulatory Agreement and Declaration of Covenants and Restrictions, dated
, by and between Maker and Holder, for the benefit of
Holder, and recorded on I , as Instrument No.
in the Office of the Riverside County Recorder
("Regulatory Agreement").
All of the foregoing listed documents are referred to herein collectively as the "Agency
Agreements" and individually as an "Agency Agreement." The Agency Agreements are
incorporated herein as though fully set forth.
Except as otherwise provided herein, the defined terms used in this Note shall have the
same meaning as set forth in the Agreement.
1. Purpose of Loan.
The loan evidenced by this Note is a loan for the purpose of acquiring the Site in
accordance with the Agreement.
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9999/001/19142 v3 ATTACHMENT NO.8
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PAGE or5
Draft of 10/22/02
2. Principal Amount.
The principal amount of this loan shall be Three Hundred Ninety-Two Thousand Forty
Dollars ($392,040). Interest shall accrue on the outstanding principal amount at the simple rate
of zero percent (0%) per annum.
3. Term of Note; Repayment.
3.1 For each year in which Maker complies fully with the terms and
conditions of the DDA and the Supplemental Regulatory Agreement, 1155 of the Note amount
principal shall be credited as if paid.
4. Default; Cross-Default; Acceleration. In the event Maker fails to perform
hereunder or under any of the Agency Agreements, for a period of ten (10) days after the date
such performance was due, Maker shall be in default of this Note. Prior to exercising any of its
remedies hereunder, Agency shall give Maker written notice of such default, and Maker shall
thereafter have ten (10) days to cure such default; provided, however, that if the default
hereunder is solely as a result of a default under any of the Agency Agreements, the default,
notice, and cure provisions of the applicable Agency Agreement shall apply. If Maker cures a
default under an Agency Agreement within the cure period set forth in the applicable Agency
Agreement, Maker shall be deemed to have also cured that default under this Agency Loan. If
Maker does not cure a default under any of the Agency Agreements within the cure period set
forth in the applicable Agency Agreement, Maker shall be deemed in default under all of the
Agency Agreements and under this Note. In the event Maker is deemed in default under this
Note, and has not cured the default within the time set forth in the applicable notice of default,
Holder may, at its option, declare this Note and the entire obligations hereby evidenced
immediately due and payable and collectible then or thereafter as Holder may elect, regardless of
the date of maturity, and notice of the exercise of said option is hereby expressly waived by
Maker.
5. Collection Costs; Attorneys' Fees. If, because of any event of default under this
Note or any of the Agency Agreements, any attorney is engaged by Holder to enforce of defend
any provision of this instrument, whether or not suit is filed hereon, then Maker shall pay upon
demand reasonable attorneys' fees, expert witness fees and all costs so incurred by Holder
together with interest thereon until paid at the applicable rate of interest payable hereunder, as if
such fees and costs had been added to the principal owing hereunder.
6. Waivers by Maker. Maker and all endorsers, guarantors and persons liable or to
become liable on this Note waive presentment, protest and demand, notice of protest, demand
and dishonor and nonpayment of this Note and any and all other notices or matters of a like
nature, and consent to any and all renewals and extensions near the time of payment hereof and
agree further that at any time and from time to time without notice, the terms of payment herein
may be modified or the security described in any documents securing this Note released in whole
or in part, or increased, changed or exchanged by agreement between Holder and any owner of
the premises affected by said documents securing this Note, without in any way affecting the
liability of any party to this Note or any persons liable or to become liable with respect to any
indebtedness evidenced hereby.
9999/001/19142 v3 ATTACHMENT NO 8
(Previously#18406 v3) To SUNRISE DDA
PAGE 3 OF 5
Draft of 10/22/02
7. Severability. The unenforceability or invalidity of any provision or provisions of
this Note as to any persons or circumstances shall not render that provision or those provisions
unenforceable or invalid as to any other provisions or circumstances, and all provisions hereof, in
all other respects, shall remain valid and enforceable.
8. Notices. All notices, demands, requests, elections, approvals, disapprovals,
consents or other communications given under this Note shall be in writing and shall be given by
personal delivery, certified mail, return receipt requested, or overnight guaranteed delivery
service and addressed as follows:
If to Holder: The 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: Aleshire, Wynder & Sylva, LLP
18881 Von]Kannan Avenue, Suite 400
Irvine, California 92612
Attn: David J. Aleshire, Esq.
If to Maker: Sunrise Village Mobile Home Park
1551 No. Tustin Avenue, Suite 910
Santa Ana, California 92705-8637
Attn: Executive Director
With copies to:
Attn:
Notices shall be effective upon the earlier of receipt or refusal of delivery. Each party shall
promptly notify the other party of any change(s) of address to which notice shall be sent pursuant
to this Note.
9. Modifications. Neither this Note nor any term hereof may be waived, amended,
discharged, modified, changed or terminated orally; nor shall any waiver of any provision hereof
be effective except by an instrument in writing signed by Maker and Holder. No delay or
omission on the part of Holder in exercising any right hereunder shall operate as a waiver of such
right or of any other right under this Note.
10. No Waiver by Holder. No waiver of any breach, default or failure of condition
under the terms of this Note shall be implied from any failure of the Holder of this Note to take,
or any delay be implied from any failure by the Holder in taking action with respect to such
breach, default or failure from any prior waiver of any similar or unrelated breach, default or
failure.
9999/001/19142 v3 ATTACHMENT NO.8
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PAGE 4 of 5
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I t. Usury. Notwithstanding any provision in this Note, the total liability for payment
in the nature of interest shall not exceed the limit imposed by applicable laws of the State of
California.
12. Nonassignability. Maker may not transfer, assign, or encumber this Note in any
manner without the prior, express, written authorization of Holder, which may be given or
withheld by Holder in Holder's sole and absolute discretion. It shall be deemed reasonable for
Holder to refuse authorization for any reason or no stated reason. Holder may freely transfer,
assign, or encumber Holder's interest in this Note in any manner, at Holder's sole discretion.
13. Governing Law. This Note has been executed and delivered by Maker in the
State of California and is to be governed and construed in accordance with the laws thereof.
14. Time of Essence. Time is of the essence in the performance of the obligations
and provisions set forth in this Note.
15. 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; (B) 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; (D)
the indemnification undertakings of Maker under the Agency Agreements, provided, however,
nothing herein shall be deemed to obligate Maker to repay any portion of the Loan evidenced
hereby as a result of any such indemnification; and (E) material waste by Maker with respect to
the Site.
IN WITNESS WHEREOF, the parties have executed this Note as of the date first above written.
"Maker"
SUNRISE VILLAGE MOBILEHOME PARK
CORPORATION, a California nonprofit
corporation
By:
9999/001/19142 v3 ATTACHMENT NO.8
(Previously#19406 v3) To SUNRISE DDA
PAGE 5 of 5
Draft of 10/22/02
ATTACHMENT NO. 9
[SEE FOLLOWING PAGE(S)]
9999/001/19142 v3 ATTACHMENT NO 9
(Previously#18406 v3) To SUNRISE DDA
PAGE 1 OF 14
Draft of 10/22/02
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS
3200 E. Taliquitz Carryon Way
Palm Springs, California 92262
Attention: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
EXEMPT FROM RECORDING FEE PER GOV. CODE`6103
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
20_, between SUNRISE VILLAGE MOBILE HOME PARK CORPORATION, a California nonprofit corporation, herein called
TRUSTOR,whose address is
a corporation, herein called TRUSTEE, and
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 Los Angeles, 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$ ,
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, narnely:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1288 556 Kings 859 713 Placer 1028 379 Sierra 38 187
Alpine 3 130-31 Lake 437 110 Plumas 166 1307 Siskiyou 506 762
Amador 133 439 Lassen 192 367 Riverside 3778 347 Solano 1287 621
Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2067 427
Calaveras 195 339 Madera 911 136 San Benito 300 405 Stanislaus 1970 56
Colusa 323 391 Merin 1849 122 San Bemardino 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 Obispo 1311 137 Tulare 2530 108
Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 160
Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237
Humboldt Sol 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
9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 0) To SUNRISE DDA
PACE 2 OF 14
Draft of 10/22/02
Kern 3756 690 Orange 7182 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 subdivisions 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 therefor 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:
SUNRISE VILLAGE MOBILE HOME PARK CORPORATION, a California nonprofit corporation
By:
[ACKNOWLEDGMENT FORMS AT END OF RIDER]
9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) To SUNRISE DDA
PAOE3 OF 14
Draft of 10/22/02
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 goad 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 therefor, 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 therefor 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.
9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) To SUNRISE DDA
PAGE 4 OF 14
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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 Trustor,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 Trustor, Beneficiary or
Trustee shall be a party unless brought by Trustee.
i
9999/001/19142 v3 ATTACHMENT NO.9
(Previously 918406 v3) To SUNRISE DDA
PAGE 5 of 14
Draft of 10/22/02
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,an 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.
(n W
NM Q
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9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) To SUNRISE DDA
P.acE 6 OF 14
Draft of 10/22/02
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 , 20_, by SUNRISE VILLAGE MOBILE HOME
PARK CORPORATION, a California nonprofit corporation, 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) 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 "Note"); (ii) Disposition and Development
Agreement by and between Trustor, Beneficiary and the Owner/Lessee, dated , 2002,
providing for Trustor's acquisition of the Property ("DDA"); and (iii) Regulatory Agreement and
Declaration of Covenants, Conditions and Restrictions, dated by and between
Trustor and Beneficiary, providing for the use, operation, and maintenance of the Property
("Regulatory Agreement").
The parties hereto agree:
1. Pro ert . 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, instnunents 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 thereof or any
9999/001/19142 v3 ATTACHMENT NO.9
/➢
\.reviowly#18406 v3) RIDER TO DEED OF TRUST W Tit ASSIGNMENT OF RENTS
To SUNRISE DDA
PAGE 7 OF 14
Draft of 10/22/02
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, constriction and building pennits, 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, constriction, use, occupancy and/or operation
of the Property between Truster 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 Truster 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.
9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
To SUNRISE DDA
PAGE 8 OF 14
Draft of 10/22/02
2. Obligations 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 Note;
(b) Payment and performance of all obligations of Trustor under this Deed of
Trust, the DDA, and the Regulatory Agreement;
(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.
3. Obligations. The tenn "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.
4. Incorporation. All terms of the 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.
5. 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 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.
6. 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.
7. 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
9999/001/19142 0 ATTACHMENT NO.9
(PrMollsly#18406 v3) RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
To SUNRISE DDA
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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 Trustor's Limited Partner, and to any permitted lender. 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 Los Angeles, the
terms of this Rider shall control.
8. 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 Beneficiary 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 terns 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 constrictive notice that such funds were
impressed with a trust in accordance therewith.
9999/001/19142 v3 ATTACHMENT NO.9
(Previously#19406 v3) RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
To SUNRISE DDA
PAGE 10 OF 14
Drat of 10/22/02
9. Receiver. In addition to any and all other remedies of Beneficiary set forth under
this Deed of Trust or pennitted 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 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.
10. Security Agreement. 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 Truster, 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. Truster 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. Truster 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
99991001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
To SUNRISE DDA
PACE I I of 14
Draft of 10/22/02
Trustee. Any person, including both Trustee and Beneficiary, shall be eligible to purchase any
part or all of such property at any such disposition.
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.
11. Notices, Demands, and Communications. Formal notices, demands, and
communications between Truster 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: The 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: Aleshire, Wynder & Sylva, LLP
18881 Von Karman Avenue, Suite 400
Irvine, California 92612
Attn: David J. Aleshire, Esq.
To Trustor: Sunrise Village Mobile Home Park Corporation,
a California nonprofit corporation
1551 No. Tustin Avenue, Suite 910
Santa Ana, California 92705-8637
Attn:
With copies to:
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.
[SIGNATURES TO FOLLOW]
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9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
To SUNRISE DDA
PAGE 12 OF 14
Draft of 10/22/02
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:
SUNRISE VILLAGE MOBILE HOME PARK
CORPORATION, a California nonprofit
corporation
By:
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9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) RIDERTO DEED OF TRUST WITH ASSIGN - TOFRENTS
To SUNRISE DDA
PAGE 13 of 14
Draft of 10/22/02
EXHIBIT"A"
LEGAL DESCRIPTION
Real property located in the City of Palm Springs, County of Riverside, State of California,
legally described as:
[TO BE INSERTED]
9999/001/19142 v3 ATTACHMENT NO.9
(Previously#18406 v3) RIDERTO DEED OF TRUST WITH ASSIGN GNMENTNROFRENTS DDA
PAGE 14 OF 14
Draft o110/22/02
TABLE OF CONTENTS
Page No.
I. (§100) PURPOSE OF THE AGREEMENT................................................I
A. (§101) Purpose of the Agreement. ...............................................................I
H. (§200) DEFINITIONS.................................................................................I
A. (§201) Affordable Rent................................................................................I
B. (§202) Agency Financial Assistance. ..........................................................2
C. (§203) Agreement. .......................................................................................2
D. (§204) Bond Financing. ...............................................................................2
E. (§205) City...................................................................................................2
F. (§206) Closing. ............................................................................................2
G. (§207) Covenanted Space. ...........................................................................2
H. (§208) Days..................................................................................................3
I. (§209) Deed. ................................................................................................3
J. (§210)Effective Date...................................................................................3
K. (§211) Enforced Delay.................................................................................3
L. (§212)Escrow..............................................................................................3
M. (§213) Escrow Agent. ..................................................................................3
N. (§214) Lease Agreement..............................................................................3
0. (§215) Lower Income Household................................................................3
P. (§216) Project...............................................................................................4
Q. (§217) Purchase Price. .................................................................................4
R. (§218) Qualified Tenant...............................................................................4
S. (§219) Redevelopment Plan.........................................................................4
T. (§220) Redevelopment Project Area............................................................5
U. (§221) Supplemental Regulatory Agreement. .............................................5
V. (§222) Residual Deed of Trust.....................................................................5
W. (§223) Residual Note. ..................................................................................5
X. (§224) Schedule of Performance. ................................................................5
Y. (§225) Site and Site Map. ............................................................................5
Z. (§226) Title. .................................................................................................6
AA. (§227) Title Company..................................................................................6
19142 v3
(Previously#18406 v3)
BB. (§228) Very Low Income Household. .........................................................6
III. (§300) PARTIES TO THE AGREEMENT.................................................6
A. (§301) Agency. ............................................................................................6
B. (§302)Nonprofit. .........................................................................................6
1. Identification. .................................................................................6
2. Successors and Assigns. .................................................................6
3. Qualifications. ................................................................................7
C. (§303) Owner/Lessee...................................................................................7
D. (§304)Restrictions on Transfer. ..................................................................7
1. Transfer Defined. ...........................................................................7
2. Exceptions. .....................................................................................7
IV. (§400) DISPOSITION OF THE SITE.........................................................8
A. (§401) Financing Milestones. ......................................................................8
B. (§402) Disposition of the Site......................................................................8
1. Conveyance of the Site to Owner/Lessee with Immediate Transfer
toNonprofit. ...................................................................................8
2. Purpose of Sale. . ............................................................................8
3. Agency's Financial Assistance to Nonprofit. ..................................8
C. (§403) Escrow..............................................................................................9
D. (§404) Conditions to Close of Escrow.........................................................9
1. Nonprofit's Conditions to Closing. ................................................9
2. Agency's Conditions to Closing. .................................................10
3. Owner/Lessees Conditions to Closing...........................................10
4. All Parties' Conditions to Closing. . .............................................10
E. (§405) Conveyance of the Site...................................................................11
1. Time for Conveyance. ..................................................................I I
2. Escrow Agent to Advise of Costs. ...............................................I I
3. Deposits By Agency Prior to Closing. .........................................I I
4. Deposits by Owner/Lessee Prior to Closing. . ..............................11
5. Deposits By Nonprofit Prior to Closing. ......................................I I
6. Recordation and Disbursement of Funds. ....................................I 1
F. (§406) Title Matters. ..................................................................................12
19142 v3 -11-
(Previously#18406 v3)
1. Condition of Title. ........................................................................12
2. Exclusion of Oil, Gas, and Hydrocarbons. ..................................12
3. Agency Not to Encumber Site. ....................................................12
4. Approval of Title Exceptions. ......................................................12
5. Title Policy. ..................................................................................13
G. (§407) Evidence of Financial Capability...................................................13
H. (§408) Condition of Site. ...........................................................................13
1. Agency Site Assessment and Remediation. .................................13
2. Disclaimer of Warranties. ............................................................13
3. Right to Enter Site, Indemnification. ...........................................14
4. Hazardous Materials. ...................................................................14
I. (§409) Costs of Escrow..............................................................................17
1. Allocation of Costs. .....................................................................17
2. Proration and Adjustments. ..........................................................17
3. Extraordinary Services of Escrow Agent. ....................................17
4. Escrow Agent's Right to Retain Documents. ..............................17
J. (§410) Termination of Escrow...................................................................17
1. Tennination. .................................................................................17
2. Opportunity to Cure. ....................................................................18
K. (§411) Responsibility of Escrow Agent.....................................................18
1. Deposit of Funds. .........................................................................18
2. Notices. ........................................................................................18
3. Sufficiency of Documents. ...........................................................18
4. Exculpation of Escrow Agent. .....................................................18
5. Responsibilities in the Event of Controversies. ...........................19
V. (§500) DEVELOPMENT OF THE SITE..................................................19
VI. (§600) USES AND MAINTENANCE OF THE SITE..............................19
A. (§601) Uses of the Site...............................................................................19
B. (§602) Affordable Housing........................................................................20
1. Operation and Maintenance of Affordable Housing......................20
2. Leasing of Residences by Nonprofit..............................................20
C. (§603) Obligation to Refrain from Discrimination....................................20
19142 v3 -111-
(Previously#18406 v3)
D. (§604)Form of Nondiscrimination and Nonsegregation Clauses. ............20
1. Deeds: ..........................................................................................21
2. Leases: ..........................................................................................21
3. Contracts: .....................................................................................21
E. (§605) Maintenance of Improvements.......................................................21
F. (§606) Effect of Covenants........................................................................21
VII. (§700) DEFAULTS, REMEDIES AND TERMINATION.......................22
A. (§701) Defaults, Right to Cure and Waivers. ............................................22
B. (§702) Legal Actions. ................................................................................22
1. Institution of Legal Actions. ........................................................22
2. Applicable Law and Forum. ........................................................23
3. Acceptance of Service of Process. ...............................................23
C. (§703) Rights and Remedies are Cumulative. ...........................................23
D. (§704) Specific Performance. ....................................................................23
E. (§705) Right of Reverter. [Reserved] ......................................................23
F. (§706) Attorney's Fees. .............................................................................23
VIII. (§800) GENERAL PROVISIONS.............................................................24
A. (§801) Notices, Demands and Communications Between the Parties.......24
B. (§802)Nonliability of City and Agency Officials and Employees;
Conflicts of Interest; Commissions............................................................24
1. Personal Liability. ........................................................................25
2. Financial Interest. .........................................................................25
3. Commissions. ...............................................................................25
C. (§803) Enforced Delay: Extension of Times of Performance. ..................25
D. (§804)Books and Records.........................................................................25
1. Nonprofit to Keep Records. .........................................................26
2. Right to Inspect. ...........................................................................26
3. Ownership of Documents. ...........................................................26
E. (§805) Assurances to Act in Good Faith....................................................26
F. (§806) Interpretation. .................................................................................26
G. (§807) Entire Agreement, Waivers and Amendments...............................26
H. 808 Severabilit 27
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19142 v3 -iv-
(Previously#18406 v3)
I. (§809) Effect of Redevelopment Plan Amendment...................................27
1 (§810) Time for Acceptance of Agreement by Agency.............................27
K. (§811) Execution........................................................................................27
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. [Space Reserved]
ATTACHMENT NO. 6A. Grant Deed (Owner/Lessee)
ATTACHMENT NO. 613. Grant Deed ( )
ATTACHMENT NO. 7. Regulatory Agreement and Declaration of Covenants and
Restrictions
ATTACHMENT NO. 8. Residual Note
ATTACHMENT NO. 9. (a) Deed of Trust with Assignment of Rents and rider Attached
Hereto Containing Terms Including Security Agreement and
Fixture Filing
(b) Rider to Deed of Trust with Assignment of Rents
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II
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19142 v3 _v_
(Previously#18406 v3)