HomeMy WebLinkAbout12/3/2003 - STAFF REPORTS DATE: DECEMBER 3, 2003
TO: COMMUNITY REDEVELOPMENT AGENCY
FROM: DIRECTOR OF COMMUNITY & ECONOMIC DEVELOPMENT
PUBLIC HEARING APPROVING A RESTATED AND AMENDED DISPOSITION AND
DEVELOPMENT AGREEMENT WITH SUNRISE HACIENDA PARTNERS AND
COACHELLA VALLEY HOUSING COALITION TO AMEND THE LOAN TERMS FOR THE
PURPOSE OF OBTAINING PROJECT FINANCING FROM THE STATE MULTIFAMILY
HOUSING PROGRAM (MHP), AS WELL AS CHANGE THE PARTNERSHIP NAME TO
HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES,A CALIFORNIA LIMITED
PARTNERSHIP FOR THE DEVELOPMENTAND CONSTRUCTION OF THE HACIENDA
SUNSET APARTMENTS, LOCATED ON THE WEST SIDE OF SUNRISE WAY NORTH
OF SAN RAFAEL ROAD
RECOMMENDATION:
It is recommended that the Agency approve a Restated and Amended Disposition
and Development Agreement with Sunrise Hacienda Partners and Coachella
Valley Housing Coalition (CVHC), amending the terms of the Agency assistance
to conform to the requirements of the state Multifamily Housing Program (MHP)
and changing the project- and partnership name. The Agency would continue to
provide $1,000,000 (One Million Dollars) in land write downs and Agency financial
assistance for the construction of a 66-unit low-income apartment complex, now
referred to as the Hacienda Sunset Apartments, south of the Coyote Run
Apartments on Sunrise Way and San Rafael Road.
SUMMARY:
This resolution amends a Disposition and Development Agreement with the
developers of the Hacienda Sunset Apartments to restructure the Agency note in
the amount of$1,000,000 to conform to the requirements of the MHP program for
subordinate financing assistance, as well as amend the project- and partnership
name. The Agency will still contribute a 6.25 acre parcel of Agency-owned land
(valued at $250,000) and provide up to $750,000 over three years, to assist the
project financing. In return, the Developer agrees to proceed with the project as
proposed and approved by the City Council on July 3, 2002. This project is
another piece of the Agency's efforts to upgrade and develop the area near San
Rafael Road and Sunrise Way.
BACKGROUND:
Agency members are familiar with the Hacienda Sunset Apartments, which it
approved as an expansion to the Coyote Run Apartments (known then as Sunrise
Hacienda Apartments) in July, 2002. The Coyote Run project has remained well
maintained and is the finest low-income apartment complex in the city. The
Agency agreed to contribute to the project the adjacent 6.25 acre parcel and an
additional $750,000 in cash over three years. Staff first discussed the concept of
expanding Coyote Run with the Agency at a Study Session in March, 1999.
The project has a variety of different-size apartments, from 1-bedroom to 4-
bedroom. The City's Affordable Housing Strategy identified low-income rental
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housing for larger families as the City's most pressing housing need. This project
does make a small dent in that need and develops a portion of land adjacent to the
K. Hovnanian Four Seasons project, a small neighborhood park that will result from
that project, the sale of lots in Sunrise Norte (and several proposed upgrades
there), and the sale and potential upgrade of the Santiago Sunrise Village Mobile
Home Park.
As with most affordable housing projects,the non-profit housing developer(CVHC)
acts as the General Partner, but then sells most of the project to a for-profit limited
partner who would be able to use the 4% credits (LIHTC). The Partnership in this
case was called Sunrise Hacienda Partners, which applied for a LIHTC allocation
in July, 2002. That application scored well in the July 2002 tax credit round but
was unsuccessful. It was also determined that the anticipated partnership name
was already taken in California, requiring a name change.
The project then applied for federal HOME funds and received an award in
October, 2002. In March, 2003 the developer applied for MHP funding and
received an allocation later in the year. The project is nearly ready to move forward
and is in plan check (there is still a small gap of$350,000 that could be filled by a
grant from a different program) but MHP requires a number of changes in how the
Agency's participation is structured. The Agency deal remains essentially the
same as in the DDA:
1. Once the project receives its project financing, the Agency will Grant Deed
the property to CVHC as the General Partner. The Agency retains reverter
rights if the Developer fails to proceed or complete the project.
2. At that time, the Agency would release its first disbursement of $300,000
based on invoices received from the developer, including both soft costs
and hard costs. In the next two years, the Agency shall make payments of
$225,000 each year to the project. The assistance shall be secured by a
Deed of Trust, which is being amended in the DDA Amendment.
3. The developer commits to building the project as proposed, including the
architectural upgrades, noise buffering, quality landscaping, and other
components. The regulatory agreement with the Agency will assure that
the units will count towards the City's low income housing goals.
4. The Agency shall assist the Developer in applying for other financing
programs in every way possible.
5. Project plans and drawings would become property of the Agency at the
time of the land transfer and would be necessary to the Agency in the event
it becomes necessary for the Agency to complete the project.
6. One additional amendment is that the developer has asked that the Agency
allow for the sale of the project from the partnership to the general partner
at the end of the 15-year tax credit compliance period. The general partner
is Coachella Valley Housing Coalition (CVHC),the developer of the project.
At the end of the 15 year period, the limited partners' financial incentive to
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remain in the project no longer exists, as their return is obtained through the
tax credit program which pays out over the first ten years. The approval
would be contingent upon CVHC being financially solid at the time of sale
and still primarily engaged in the development and management of
affordable housing.
Half of the project's units (33) shall count in the Agency's inventory of Low/Mod
Housing Uni
J ,HN S. AYMO
Dir' ctor Community & Economic Development
c—
APPROVED ,
Executive Director
ATTACHMENTS:
1. Resolution
2. Amendment No. 1 to a Disposition and Development Agreement
3. Public Hearing Notice
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN, that the Community Redevelopment Agency of the City of
Palm Springs and the City of Palm Springs will hold a Joint Public Hearing in the City Council
Chambers, located at 3200 Tahquitz Canyon Way, Palm Springs, California 92262, beginning at
7:00 p.m., Wednesday, December 3, 2003, to consider the following:
Amendment No. 1 to a Disposition and Development Agreement ("DDA") between Sunrise
Hacienda Partners and the Community Redevelopment Agency to the City of Palm Springs for a
project located on the west side of
Sunrise Way near San Rafael Road
Palm Springs, California 92262
The nature of the amendments are to change the name of the partnership to Sunset
Hacienda Partners, and to restructure the promissory note for the $750,000 in Agency Low
Income Housing Setaside funds to conform to the requirements of the primary financing
program, California's Multifamily Housing Program (MHP). The DDA calls for the Agency
contributing the 6.25 acre Agency-owned parcel to project, as well as. The partnership has
received federal HOME funds, as well as state MHP funds.
The general partner in the project is Coachella Valley Housing Coalition, the general
partner and property manager of the adjacent Coyote Run apartments. The two projects would
share some amenities, including the existing day care center and new tot lots. The new project
is adjacent to Coyote Run.
All interested persons are invited to attend the Public Hearing and express opinions on
the item listed above. If you challenge the nature of the proposed action in court, you may be
limited to raising only those issues you or someone else raised at the Public Hearing described
in this notice, or in written correspondence delivered to the City Clerk, at the address listed
above, at or prior to the Public Hearing.
Members of the public may view this document and all referenced documents in the
Community Redevelopment Department, City Hall, and submit written comments to the
Community Redevelopment Agency at or prior to the Community Redevelopment Agency
Meeting at or prior to the public hearing described in this notice.
Further information, including a copy of the Amendment and Resolution, prepared in
accordance with Health and Safety Code Section 33433, is available in the Office of the City
Clerk, at the above address.
PATRICIA A. SANDERS, City Clerk
PUBLISHED: November 18 and November 25, 2003
C2h /94/
Ly
RESTATED AND AMENDED
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
COMMUNITY REDEVELOPMENT AGENCY
• OF THE CITY OF PALM SPRINGS
a public body, corporate and politic
and
SITNSETHACIENDA PARTNERSSUNSET AFFORDABLE HOUSING
ASSOCIATES,
a California Limited Partnership
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• DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is entered
into as of the date executed by the Agency, by between the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic
("Agency"), and UNSL- HACIENDA n AA D=� SUNSET AFFORDABLE HOUSING
ASSOCIATES, a California limited partnership ("Developer"). The parties agree as follows:
I. (�. 100)PURPOSE OF THE AGREEMENT
A. MOO_Purpose of the Agreement.
This Agreement and the Attachments hereto are intended to effectuate the
Redevelopment Plan for the Palm Springs Redevelopment Merged Project Area No. 1 (the
"Redevelopment Project Area") by providing for the disposition and development of property
owned by the Agency located near the Redevelopment Project Area designated herein as the
"Site" and the development of the "Project" thereon (as those terms are defined herein). The
development of the Site pursuant to this Agreement, and the fulfillment generally of this
Agreement, are in the vital and best interests of the City of Palm Springs ("City") and the welfare
of its residents, and in accordance with the public purposes and provisions of applicable federal,
state and local laws and requirements.
• This Agreement is intended to set forth a comprehensive plan for the acquisition and
development of affordable housing on the Site, including land assembly and the design,
processing, financing and construction necessary to complete the Project on the Site. The
Project, as further defined below, will provide family residential rental units available at rents
affordable to very low and low 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 Health
and Safety Code Section 50093 (i.e., for Very Low Income Households, a rent, including a
reasonable utility allowance, not exceeding the product of 30 percent times 50 percent of the area
median income adjusted for family size appropriate for the emit).
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B. (M2)Agency Financial Assistance.
The term "Agency Financial Assistance" shall mean the total amount of the financial
assistance made by Agency to Developer to fund the acquisition of the Site and development
costs for the Project, as further described in Section 403 below.
C. 0203)Agency Note.
The term "Agency Note" shall mean that certain promissory note for an amount of One
Million Dollars ($1,000,000.00) representing the fair market value of the Site in addition to the
Seven Hundred Fifty Thousand Dollar ($750,000.00) cash loan contribution from the Agency to
the Developer for the Project. A form of the Agency Note is attached hereto as Attachment No.
—6 and incorporated herein by this reference.
D. 0204) 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 docnunents incorporated herein by reference.
E. (§205) Certificate of Completion.
The term "Certificate of Completion" shall mean that document prepared in accordance
with Section 514 of this Agreement, in the form attached as Attachment No. -78, which shall
• evidence that the construction and development of the improvements required by this Agreement
have been satisfactorily completed.
F. (4. 206) City.
The term "City" shall mean the City of Palm Springs, a chartered municipal corporation.
G. (�207) Closing.
The term "Closing" or "Closing Date" shall mean the closing of the Escrow for the
conveyance of the Site from Agency to Developer by the Escrow Agent's distributing the funds
and documents received through Escrow to the party entitled thereto as provided herein, which
closing shall occur on or before the date established in the Schedule of Performance.
H. 0208)Days.
The tern "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. (Q09) Deed.
The term "Deed" or "Grant Deed" shall mean that Grant Deed in substantially the fonn
attached hereto as Attachment No. 5 by which Agency as Grantor will convey fee title to the Site
to Developer as Grantee.
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J. 0210) Deed of Trust.
The term "Deed of Trust" shall refer to that deed of trust and assignment of rents attached
hereto as Attachment No. 67, securing Developer's obligations pursuant to the Agency Note, the
DDA and the Regulatory Agreement.
K. (§211) 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.
L. 0212) Enforced Delay.
The term "Enforced Delay" shall mean any delay described in Section 903 caused
without fault and beyond the reasonable control of a party, which delay shall justify an extension
of time to perform as provided in Section 903.
M. 0213) Escrow.
The term "Escrow" shall mean the escrow established pursuant to this Agreement for the
conveyance of title to the Site from Agency to Developer.
N. 0214) Escrow Agent.
• The term "Escrow Agent" shall mean Chicago Title Escrow Company, located at 750
North Palm Canyon Drive, Palm Springs, CA and empowered hereunder to act as the Escrow
Agent for this transaction. The Escrow Agent contact shall be Dawn Martin.
O. (5215) Low Income Household.
The term "Low Income Household" shall mean a household whose annual household
income does not exceed eighty percent (80%) of area median income for Riverside Comity,
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.
P. 0216)Manager's Unit.
The term "Manager's Unit" shall mean the one (1) unit of the Project that shall be
designated by Developer as a residence for a "Qualified Manager." The Manager's Unit shall
not be an income-restricted Unit.
Q. ($217) Project.
The term "Project" shall mean all of the improvements required to be constructed by
Developer on the Site pursuant to this Agreement, including, but not limited to, construction of
buildings, glass and concrete work, landscaping, construction of parking areas, and related
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improvements. The overall Project is more particularly described in the Scope of Development
attached hereto as Attachment No. 4. Upon completion, the Project will be a sixty-six (66) unit
residential apartment complex including thirty-two (32) units restricted for rent to Very Low and
Lower Income Households, and one (1) Unit restricted for rent to a Qualified Manager. Fifty
(50) percent of the Restricted Units shall be for Very Low Income Households and fifty (50)
percent shall be for Low Income Households.
R. 0218) Purchase Price.
The term "Purchase Price" shall mean that amount agreed upon by the parties as the
payment to be made by Developer to Agency for the purchase of the Site, which Purchase Price
shall be the amount of Two Hundred and Fifty Thousand Dollars ($250,001) which shall be
comprised of a cash portion equal to One Dollar ($1.00) and the Agency Note secured by the
Deed of Trust in the amount of One Million Dollars ($1,000,000) which includes the Purchase
Price carry back of Two Hundred Fifty Thousand Dollars ($250,000), and the additional cash
Agency Assistance of$750,000 as described in Section 403 below.
S. (5219) Qualified Manager.
The term "Qualified Manager" shall mean the resident Project Manager selected and
retained by Developer pursuant to the Regulatory Agreement. The Qualified Manager shall
reside in the "Manager's Unit" designated by Developer. The Manager's Unit shall be restricted
to occupancy by the Qualified Manager and their households, but shall not be subject to any
• income restriction.
T. (§220) Qualified Tax Credit Investor.
The term "Qualified Tax Credit Investor" shall mean a person or entity who (i) is an
experienced limited partner and investor in multifamily housing developments receiving low
income housing tax credits issued by the State of California or the United States federal
government ("Tax Credits"), and(ii) has obtained or is contractually obligated to obtain a limited
partnership or limited liability company membership interest in the Developer whereby it will
receive ninety percent(90%) or more of the Tax Credits obtained in comiection with the Project.
U. (5221) Qualified Tenant.
The term "Qualified Tenant" shall mean those households seeking to rent a Restricted
Unit who satisfy all of the following requirements:
a. Upon execution of a lease with Developer pursuant to this Agreement,
each member of the household will occupy a Restricted Unit as its principal residence, and each
member intends to thereafter continuously occupy such Restricted Unit as its principal residence.
b. Upon execution of a lease with Developer pursuant to this Agreement., the
household is a Very Low or Low Income Household.
C. The household has been selected in accordance with the tenant selection
criteria set forth in the Regulatory Agreement.
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V. 0222) Redevelopment Plan.
• The term "Redevelopment Plan" shall mean the Redevelopment Plan for the -Mferged
Redevelopment Project Area No. 1 in the City of Palm Springs, as adopted by Ordinance No.
I of the City Council on J and as such Redevelopment Plan has been
amended from time to time. Agency hereby warrants and represents that the Redevelopment
Plan was validly adopted and is in full force and effect, that the applicable limitations period for
challenging the validity of the Redevelopment Plan has expired and that the proposed Project is
in accordance with and permissible under the Redevelopment Plan. A copy of the
Redevelopment Plan is on file in the office of the City Clerk of the City, located at 3200 E.
Tahquitz Canyon Way, Palm Springs, California 92262. The Redevelopment Plan is
incorporated herein by reference and made a part hereof as though frilly set forth herein.
W. (§223)Redevelopment Project Area.
The term "Redevelopment Project Area" shall mean the Palm Springs Merged
Redevelopment Project Area No. 1, which is located in the City of Palm Springs, California.
The exact boundaries of the Redevelopment Project Area are specifically described in the
Redevelopment Plan.
X. (§224)_Regulatory Agreement.
The term "Regulatory Agreement' shall mean that Regulatory Agreement attached hereto
as Attachment No. -79, running with the land and providing for the proper maintenance of
common facilities and improvements and the management and use of the Project and to insure
the Restricted Unites remain affordable pursuant to the terms of this Agreement.
Y. (§225)Reimbursable Costs.
The Term "Reimbursable Costs" shall be those development costs specified in Exhibit 1
to the Scope of Development(Attachment No. 4).
Z. (5226) Restricted Unit.
The term "Restricted Unit' shall mean and refer to one of the thirty-two (32) apartment
units in the Project which are restricted to occupancy by this Agreement and the Regulatory
Agreement to a Very Low or Low Income Household at an Affordable Rent. "Restricted Units"
shall mean and refer collectively to each and every Restricted Unit located on the Site. A
minimum of sixteen (16) of the Restricted Units shall be leased to Very Low Income
Households.
AA. (§227) Schedule of Performance.
The term "Schedule of Performance" shall mean that certain Schedule of Performance
attached hereto as Attachment No. 3.
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BB. (§228) Site and Site Map
The Project shall be located upon that real property located in the City of Palm Springs,
hereinafter referred to as the "Site", to be conveyed to and developed by Developer 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.
CC. (§229) Title Company.
The term "Title Company' shall mean Chicago Title Company, located at 750 North
Palm Canyon Drive, Palm Springs, and empowered hereunder to act as the Title company for
this transaction. The title officer shall be Margaret Flowers.
DD. (�230) 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. 0300) PARTIES TO THE AGREEMENT
A. 0, 301) Agency.
Agency is a public body, corporate and politic, exercising governmental functions and
powers, organized and existing under the Community Redevelopment Law of the State of
California (Health and Safety Code Sections 33000, et seq.). The office of Agency is located at
3200 E. Tahquitz Canyon Way, Palm Springs, California 92262. The term "Agency," as used in
this Agreement, includes the Palm Springs Redevelopment Agency and any assignee of, or
successor to, its rights, powers and responsibilities.
B. ($302)_Develoner.
1. Identification. Developer is Sunset—Hacienda ParniffsSunset Affordable
Housing Associates, a California Limited Partnership, or its approved transferee as described in
Section 303, The principal office of Developer for the purposes of this Agreement is located at
45-701 Monroe Street, Suite G, Plaza I, Indio, CA 92201. Developer warrants and represents to
Agency that Developer is qualified to do business in good standing raider the laws of the State of
California and has all requisite power and authority to carry out Developer's business as now and
whenever conducted and to enter into and perform Developer's obligations under this
Agreement. Developer's general partner is Coachella Valley Housing Coalition and the
consenting limited partner is NEF Assignment Corporation, an Illinois not-for-profit corporation.
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, Developer and the permitted successors, assigns and nominees
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of Developer. Wherever the term "Developer" is used herein, such term shall include any
• permitted successors and assigns of Developer as herein provided.
3. Qualifications. The qualifications and identity of Developer are of
particular concern to the Agency, and it is because of such qualifications and identity that
Agency has entered into this Agreement with Developer. The Agency has considered the
experience, financial capability of Developer in building successful affordable housing projects.
Based upon these considerations, the Agency has imposed those restrictions on transfer set, forth
in this Agreement.
C. 0303)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, 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 Developer 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
Developer or its successor is a corporation or trust, such transfer shall refer to the transfer of the
issued and outstanding capital stock of Developer, or of beneficial interests of such trust; in the
event that Developer 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 Developer 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.
2. Restrictions Prior to Completion. Prior to issuance of the Certificate of
Completion, Developer shall not Transfer this Agreement or any of Developer'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 to any Transfer by Developer of its interest in the Site before the
issuance of the Certificate of Completion, which Transfer requires Agency approval, Agency
shall consider factors such as (i) whether the completion or implementation of the Project is
jeopardized; (ii) the financial strength and capability of the proposed assignee to perform
Developer's obligations hereunder; and (iii) the proposed assignee's experience and expertise in
the planning, financing, development, ownership, and operation of similar projects.
In the absence of specific written agreement by Agency, prior to the issuance of a
Certificate of Completion no Transfer by Developer of all or any portion of its interest in the Site
or this Agreement (including without limitation an assignment or transfer not requiring Agency
approval hereunder) shall be deemed to relieve it or any successor party from any obligations
tinder this Agreement with respect to the completion of the development of the Project with
respect to that portion of the Site which is so transferred. In addition, no attempted assignment
of any of Developer's obligations hereunder shall be effective unless and until the successor
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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, or other form of conveyance for
financing, as provided in Section 513, but Developer shall notify Agency in advance of any such
mortgage, deed of trust, or other form of conveyance for financing pertaining to the Site.
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
exceed the outstanding balance on the debt incurred to finance the acquisition of and
improvements on the Site, including any additional costs for completion of construction, whether
direct or indirect, based upon the estimates of architects and/or contractors.
c. The granting of casements to any appropriate governmental agency
or utility or permits to facilitate the development of 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, 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.
e. 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 Truster
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.
f. A sale or transfer to a Qualified Tax Credit Investor; provided that
such Qualified Tax Credit Investor shall be in a non-managing role.
g. A sale or transfer to the Developer's general partner, the Coachella
Valley Housing Coalition, pursuant to the Purchase Option and Right of First Refusal Agreement
between said entities.
4. Restrictions After Completion. It is hereby acknowledged by Developer
and Agency that the Site is being conveyed to the Developer by the Agency at below market
value and with significant Agency Financial Assistance. Therefore, subsequent to the issuance
of the Certificate of Completion, Developer may not sell, transfer, convey, hypothecate, assign or
lease all or any portion of its interest in the Site without complying with any transfer restrictions
contained within the Deed, the Deed of Trust or the Regulatory Agreement, as applicable.
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IV. (5400) DISPOSITION OF THE SITE
A. (§401) Housing Program Funds.
The parties acknowledge that Developer intends to finance the acquisition and
development costs for the Project with Tax Credit financing, coupled with the Agency Financial
Assistance described in Section 403. Developer shall diligently apply for and pursue such Tax
Credit Financing at the earliest feasible opportunity, taking into account all applicable rules and
requirements. Developer may also pursue funding from other government-sponsored subsidized
housing funds. All of the foregoing financing shall be referred to herein collectively as "Housing
Program Funds." Developer shall demonstrate to Agency's reasonable satisfaction by the dates
set forth in the Schedule of Performance that Developer has secured a bona fide award,
commitment or reservation of Housing Program Funds in an amount sufficient to provide for the
acquisition, development, and operation of the Project.
Developer shall make an initial application for Tax Credit financing in July 2002, for a
possible award of Tax Credit financing in September 2002. The parties acknowledge that Tax
Credit financing is a highly competitive process and that Developer's initial application may not
be approved. Therefore, if the Developer is not successful in obtaining Tax Credit financing in
the 2002 funding cycle, the parties agree that Developer shall make a subsequent application for
Tax Credit financing in the 2003 funding cycle. In that event, this Agreement shall remain in
effect and the parties agree to cooperate as necessary to increase the likelihood of a successful
application in 2003 including consideration of potential amendments to this Agreement if
necessary. The dates in the Schedule of Performance shall be extended as necessary to allow for
the second or third application in the 2003 cycle. Agency agrees to assist Developer with its
applications for Housing Program Funds in any manner reasonably necessary; provided that such
assistance shall not require the Agency to contribute any financial assistance to the Developer or
the Project other than the Agency Financial Assistance described in Section 403, and fuuther
provided that such assistance shall not require the Agency to devote an unreasonable amount of
staff time or resources. In the event Developer is not successful in obtaining Tax Credit
Financing, Developer shall have time up until June 30, 2004 to obtain an alternate source of
financing for the Project.
B. ($402) Acquisition of the Site.
The Site is currently owned by the City which acquired different parcels of the Site at
different times all for the purpose of use for affordable housing development. The City, in its
meeting of July 10, 2002, adopted a resolution approving the sale of the Site to the Agency for
Two Hundred Fifty Thousand Dollars ($250,000.00). The Agency shall approve and fund the
acquisition of the Site on or before September 30, 2002.
C. 0403) Disposition of the Site.
Agency shall convey the Site to Developer and Developer shall acquire the Site from
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1. Purpose of Sale. Upon attaining required financing as described herein,
• Developer agrees to develop the Site with sixty-six (66) rental units, thirty-two (32) of which
shall be restricted for fifty-five years (55) for rental to persons of Very Low and Low income, all
as described in the Scope of Development.
2. Agency Financial Assistance. Agency agrees to provide certain financial
assistance to Developer to assist the Developer in the construction costs of the Project. The
Reimbursable Costs are those specified in Exhibit "1" to the Scope of Development Attachment
No. 4. In addition to transferring the fee interest in the Site to the Developer for $1.00 in cash
and carrying back a promissory note for the fair market value of Two Hundred Fifty Thousand
Dollars ($250,000), the Agency shall loan the Developer $750,000 cash to be used towards
payment of the Reimbursable Costs. The promissory note for the entire loan ("Agency Note")
shall be an amount of One Million Dollars ($1,000,000), for a term of 55 years, at three (3)
percent per annum simple interest, with deferred interest and principal for the term of the loan.
Agency shall pay a properly submitted and documented invoice after verification of the
work for Reimbursable Costs within thirty (30) days of receipt pursuant to the procedure in
subparagraph 3 below, provided that Agency shall comply with all mechanics' lien laws. The
Reimbursable Costs loan disbursement shall have limits for the year 2002, 2003, and 2004. No
more than $300,000 shall be disbursed in 2002; $225,000 in 2003, and $225,000 in 2004 (the
"Maximum Advance Amount"). Developer shall be responsible for all costs of the Project with
the assistance of the loan disbursement.
The Agency Financial Assistance and the completion and operation of the Project shall
be secured by the Agency's right of reverter described in Section 805 and by the Deed of Trust
attached hereto as Attachment No. 8; provided that Agency's security shall be subordinated to
Developer's construction and permanent financing for the Project as approved by Agency. The
total cost of the Project as approved by Agency is estimated to be Eleven Million Five Hundred
Thousand Dollars ($11,500,000). The estimated amount of the Developer's construction
financing is estimated to be Nine Million Eight Hundred Thousand Dollars ($9,800,000).
3. Application for Disbursement. On or about the 151h and 3011' day of each
month after the Conveyance, continuing rmtil all of the applicable Maximum Advance Amount,
for each year has been disbursed, the Developer shall submit to the Agency an "Application for
Disbursement"which shall include:
a. A written, itemized statement, signed by a representative of the
Developer which sets forth: (i) a description of the work performed, material supplied, and/or
costs incurred or due for which disbursement is requested; and (ii) the total amount incurred,
expended and/or due for the requested disbursement. All moneys applied for and disbursed
pursuant to this Section shall be applied only for the corresponding improvements and the
statement(s)by the representative of the Developer shall so affirm.
b. Copies of billing invoices, statements, receipts and other
documents evidencing the total amount expended, incurred or due for any requested
disbursement.
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C. Mechanics lien waivers including: (i) a Conditional Waiver and
Release Upon Progress Payment (California Civil Code Section 3262(d)(1)) for itself and each
contractor covered by such Request Payment, (ii) an Unconditional Waiver and Release Upon
Progress Payment (California Civil Code Section 3262(d)(2)) for itself and each of its
contractors covering the full amount of all previous payments made to Developer, and (iii) an
Unconditional Waiver and Release Upon Final Payment (California Civil Code Section
3262(d)(4)) for its contractors who have completed their work and for whom Developer has
received full payment.
d. A statement by the City Engineer or his designee that the
percentage and/or stage of construction corresponding to the application for Disbursement has
been substantially completed and substantially conforms to the Plans based upon such
engineer's inspections of the respective Improvements.
e. An engineer's certificate of substantial completion, prior to the
final disbursements.
f. Certification that in completing construction pursuant to this
Section, the Developer has complied with all applicable laws.
Each Application for Payment by the Developer shall constitute a representation and warranty by
the Developer that all work encompassed by the Application has been accomplished in
accordance with City standards for such work and sound construction practices, and that the
• Developer is in compliance with all of the provisions of this Agreement.
4. Approval and Pa ent. Upon receipt of the Application for Disbursement
the Agency shall review the same and shall approve the same subject to such exceptions as the
Agency deems reasonably necessary and appropriate under the then current circumstances. Such
approval may not unreasonably be withheld or delayed. The Agency shall pay, or cause to be
paid, any approved disbursements within thirty (30) days following the Agency's receipt of the
corresponding Application for Disbursement.
D. 0404) Escrow.
Escrow shall be opened within the time period specified in the Schedule of Performance.
This Agreement shall constitute the joint escrow instructions of the Agency and the Developer
for the Site, and a duplicate original of this Agreement shall be delivered to the Escrow Agent
upon the opening of Escrow. The Escrow Agent is empowered to act under these instructions.
Agency and Developer shall promptly prepare, execute, and deliver to the Escrow Agent such
additional escrow instructions consistent with the terms herein as shall be reasonably necessary.
No provision of any additional escrow instructions shall modify this document without specific
written approval of the modifications by both Developer and Agency.
E. (5405) Conditions to Close of Escrow.
1. Developer's Conditions to Closing. Developer's obligation to acquire the
• Site and to close Escrow hereunder, shall, in addition to any other conditions set forth herein in
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favor of Developer, be conditional and contingent upon the satisfaction, or waiver by Developer,
• of each and all of the following conditions (collectively the "Developer's Conditions to
Closing") within the time provided in the Schedule of Performance:
a. Title 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 407, the Deed of Trust, and the Regulatory Agreement.
b. Agency shall have deposited into escrow a certificate ('FrRPTA
Certificate") in such form as may be required by the Internal Revenue service pursuant to
Section 1445 of the Internal Revenue Code.
C. Developer shall have obtained evidence of financing commitments
for the development of the Site in accordance with Section 408, and Agency shall have approved
such commitments.
d. Agency shall have deposited into escrow all the documents
required under Section 406.3.
e. Developer shall have approved the physical and environmental
condition of the Site in accordance with Section 409.
f Developer shall have obtained from the City all required approvals
and permits, including site plan review, conditional use, subdivision, building, grading,
landscaping, and others for development of the Site.
Any waiver of the foregoing conditions must be express and in writing. In the event that
the foregoing conditions have not been satisfied within the time provided therefor in the
Schedule of Performance, either party may terminate this Agreement by delivering a written
notice in accordance with Section 411.
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. Developer shall have obtained evidence of financing commitments
for the development of the Site in accordance with Section 408, and Agency shall have approved
such commitments and the form of any loan documents.
b. Developer shall have timely submitted to Agency and Agency
shall have approved plans and drawings for all improvements to be constructed on the Site,
including for site plan review, conditional use, subdivision, building, grading, landscaping and
other plans and drawings, as provided in Section 502;
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C. Developer shall not have made or attempted to make a transfer in
• violation of Section 303, provided that Agency shall give notice of any violation of Section 303
and afford Developer the opportunity to cure the violation.
d. Developer shall have deposited into escrow the Purchase Price and
all the documents required under Section 406.4.
Any waiver of the foregoing conditions must be express and in writing. In the event that
Developer fails to satisfy Agency's foregoing conditions or defaults in the performance of its
obligations hereunder, Agency may terminate this Escrow.
3. Both Parties' Conditions to Closing. Prior to the Closing Date, Agency
shall execute and deliver a certificate ("Taxpayer ID Certificate") in such form as may be
required by the IRS pursuant to Section 6045 of the Internal Revenue Code, or the regulations
issued pursuant thereto, certifying as to the description of the Site, date of closing, gross price,
and taxpayer identification number for Agency. Prior to the Closing, Developer and Agency
shall cause to be delivered to the Escrow Agent such other items, instruments and documents,
and the parties shall take such further actions, as may be necessary or desirable in order to
complete the Closing. At the Closing neither party shall be in breach of its obligations
hereunder.
F. (§406) 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 shall be delivered to Developer concurrently with the conveyance of title
free of all tenancies and occupants other than any title matters approved in accordance with
Section 407.
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 and the Developer in
writing of the fees, charges, and costs necessary to clear title and close escrow, and of any
documents which have not been provided by said party and which must be deposited in Escrow
to permit timely Closing.
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; (ii) an estoppel certificate certifying that Developer
has completed all acts, other than as specified, necessary for conveyance, if such be the fact; and
(iii) payment to Escrow Agent of Agency's share of costs as determined by the Escrow Agent
pursuant to Section 410.
4. Deposits By Developer Prior to Closing. On or before, but not later than
1:00 p.m. of the date set in the Schedule of Performance, Developer shall execute and
acknowledge as may be required and deposit into escrow: (i) the cash portion of the Purchase
Price; (ii) the Regulatory Agreement; (iii) Agency Note (iv) the Deed of Trust; (v) an estoppel
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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 Developer's share of costs
as determined by the Escrow Agent pursuant to Section 410.
5. Recordation and Disbursement of Funds. Upon the completion by the
Agency and Developer 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, California, the
Deed, the Regulatory Agreement, the Deed of Trust, and any other appropriate instruments
delivered through this escrow, if necessary or proper to, and provided that the fee title interest
can, vest in Developer in accordance with the terms and provisions herein. Concurrent, with
recordation, Escrow Agent shall deliver the Title Policy to Developer insuring title and
conforming to the requirements of Section 407. Following recordation, the Escrow Agent shall
deliver copies of said instruments to Developer and Agency.
G. 0407) Title Matters.
1. Condition of Title. Agency shall convey to Developer fee interest in the
Site, subject only to: (i) the Redevelopment Plan, this Agreement, conditions in the Deed, the
Deed of Trust, and the Regulatory Agreement; (ii) current taxes, a lien not yet payable; (iii)
quasi-public utility, public alley and public street easements of record approved by Developer,
which approval shall not be unreasonably withheld; and (iv) covenants, conditions and
restrictions, reciprocal easements, and other encumbrances and title exceptions approved by
Developer under this Section. Agency shall convey title pursuant to the Deed in the form set
forth in Attachment No. 6 hereto.
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 docruments of record of all oil, gas, hydrocarbon
substances and minerals of every kind and character lying more than five hundred feet (500')
below the surface, together with the right to drill into, through, and to use and occupy all parts of
the Site lying more than five hundred feet (500') below the surface thereof for any and all
purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or
minerals from the Site but, without, however, any right to use either the surface of the Site or any
portion thereof within five hundred feet (500') of the surface for any purpose or proposes
whatsoever.
3. Agency Not to Encumber Site. Agency hereby warrants to Developer that
it has not and will not, from the time of Developer's review of the Preliminary Title Report to
close of escrow, transfer, sell, hypothecate, pledge, or otherwise encumber the Site without
express written permission of Developer.
4. Approval of Title Exceptions. Prior to the date in the Schedule of
Performance, Agency shall deliver a preliminary title report, dated no earlier than the date of this
Agreement, to Developer including copies of all documents referenced therein. Prior to the date
• in the Schedule of Performance, Developer shall deliver to Agency written notice, with a copy to
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Escrow Agent, specifying in detail any exception disapproved and the reason therefor; provided
• that Developer shall not disapprove any exception that existed at the time title to the Site was
conveyed to the Agency pursuant to the Agency Purchase Agreement. Prior to the date in the
Schedule of Performance, Agency shall deliver written notice to Developer as to whether
Agency will or will not cure the disapproved exceptions; provided, however, that Agency shall
elect to cure all disapproved exceptions which arose due to acts of Agency. If Agency so elects
to cure the disapproved exceptions, Agency shall do so on or before the Closing. If escrow fails
to timely close due to exceptions which arose due to acts of Agency not authorized by
Developer, and if Agency cannot cure said defects within the time provided in Section 411, then
Developer may elect to terminate the escrow and/or pursue any available remedies, including
specific performance, in accordance with Article 8. In the event the failure to close is due to the
existence of other conditions of title not approved by Developer which (i) are not the result of
acts of Agency and (ii) are not reasonably acceptable to Developer, 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 architectural and design expenses,
and other modifications of this Agreement.
5. Title Policy. At the close of escrow, Escrow Agent shall furnish
Developer with an ALTA Policy of Title Insurance (the "Title Policy") for the Developer's
interest, wherein the Title Company shall insure that title to the Site shall be vested in Developer,
containing no exception to such title which has not been approved or waived by Developer in
accordance with this Section. The Title Policy shall include any available additional title
insurance, extended coverage or endorsements that Developer has reasonably requested. The
• Agency shall pay only for that portion of the title insurance premium attributable to the standard
coverage, and Developer shall pay for the premium for said additional title insurance, extended
coverage or special endorsements.
H. (§408)Evidence of Financial Capability.
Within the time set forth in the Schedule of Performance, Developer shall submit to
Agency's Executive Director for approval evidence reasonably satisfactory to the Executive
Director that Developer has the financial capability necessary for the acquisition of the Site and
development of the Project thereon pursuant to this Agreement. Such evidence of financial
capability shall include all of the following:
1. Documentation that Developer has secured adequate Housing Program
Funds for the development of the Project as described in Section 401.
2. Reliable cost estimates for Developer's total cost of acquiring the Site and
developing the Project(including both "hard" and"soft"costs).
3. A complete copy of the constriction loan commitment obtained by
Developer to finance the development of the Project, or such other documentation reasonably
satisfactory to the Executive Director sufficient to demonstrate that Developer has adequate
funds available and committed to finance the development of the Project; that any such funds are
to be exclusively used for the Project and that the amount shall not exceed Ten Million Dollars
• ($10,000,000).
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4. A financial statement and/or other documentation reasonably satisfactory
to the Executive Director sufficient to demonstrate that Developer has adequate funds available
and/or committed to cover the difference between the total acquisition costs of the Site and
development costs of the Project (subparagraph (1) above) and the proceeds of the construction
loan commitment (subparagraph(2) above).
5. A copy of the proposed contract between Developer and its general
contractor for all of the improvements required to be constructed by Developer hereunder,
certified by Developer to be a true and correct copy thereof. The Executive Director shall also
have the right to review and approve any revisions that are made to the proposed contract after
its approval by the Executive Director.
Developer covenants and agrees to take all action, furnish all information, give all
consents and pay all sums reasonably required to keep the construction loan commitment in full
force and effect and shall comply with all conditions thereof, and shall promptly execute,
acknowledge and deliver all applications, credit applications and data, financial statements, and
documents in connection therewith.
I. (§409) Condition of Site.
1. Disclaimer of Warranties. Upon the Close of Escrow, Developer shall
acquire the Site in its "AS-IS" condition and shall be responsible for any defects in the Site,
whether patent or latent, including, without limitation, the physical, environmental and
• geotechnical condition of the Site, and the existence of any contamination, Hazardous Materials,
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 it, the City and their employees, agents and representatives. The
foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities,
present and future zoning, soil, subsoil, existence of Hazardous Materials or similar substances,
the purpose for which the Site is suited, or drainage. The Agency makes no representation or
warranty concerning the compaction of soil upon the Site, nor of the suitability of the soil for
construction.
2. Right to Enter Site, Indemnification. Developer shall have the right to
enter upon the Site to conduct soils, engineering, or other tests and studies, to perform
preliminary work or Site investigation or for any other purposes to carry out the terms of this
Agreement. Developer shall indemnify, defend and hold Agency harmless from and against any
claims, injuries or damages arising out of or involving any such entry or activity as provided in
Section 506. 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 507.
3. Hazardous Materials. Developer understands and agrees that in the event
Developer incurs any loss or liability concerning Hazardous Materials (as hereinafter defined)
and/or underground storage tanks and/or pipelines whether attributable to events occurring prior
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to or following the Closing, then Developer may look to prior owners of the Site, but under no
circumstances shall Developer look to Agency or City for any liability or indemnification
regarding Hazardous Materials and/or underground storage tanks and/or pipelines. Developer,
and each of the entities constituting Developer, 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 Developer, its successors, assigns
or any affiliated entity of Developer, 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. In connection therewith, Developer and each of the entities constituting Developer,
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."
DEVELOPER'S INITIALS: AGENCY'S INITIALS:
Developer and each of the entities constituting Developer, 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. Developer further agrees that in the event Developer obtains, ,From
former or present owners of the Site or any other persons or entities, releases from liability,
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• indemnities, or other forms of hold harmless relating to the subject matter of this section,
Developer shall use its diligent efforts to obtain for Agency and City the same releases,
indemnities and other comparable provisions.
•
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• For purposes of this Section 409, 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 Linder 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.
a "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 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.
C. "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" Linder Sections 25115, 25117 or
25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division
20, Chapter 6.5 (Hazardous Waste Control Law); (C) defined as a "hazardous substance" under
Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-
Presley-Tanner Hazardous Substance Account Act); (D) defined as a "hazardous material,"
"hazardous substance," or "hazardous waste" under Sections 255010) and (k) and 25501.1 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
• Response Plans and Inventory); (E) defined as a "hazardous substance" under Section 25281 of
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the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
• Hazardous Substances); (F) "used oil" as defined under Section 25250.1 of the California Health
and Safety Code; (G) asbestos; (H) listed under Chapter 11 of Division 4.5 of Title 22 of the
California Code of Regulations, or defined as hazardous or extremely hazardous pursuant to
Chapter 10 of Division 4.5 of Title 22 of the California Code of Regulations; (1) defined as waste
or a hazardous substance pursuant to the Porter-Cologne Act, Section 13050 of the California
Water Code; (J) designated as a"toxic pollutant"pursuant to the Federal Water Pollution Control
Act, 33 U.S.C. § 1317; (K) defined as a "hazardous waste" pursuant to the Federal Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903); (L) defined as a
"hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (M) defined as "Hazardous
Material" pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et sm.; 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.
Hazardous Materials shall not include those materials routinely used in the development or
operation of multi-family housing in accordance with all environmental and workplace safety
laws.
Notwithstanding any other provision of this Agreement, Developer'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.
• Notwithstanding anything to the contrary in this Section, Developer'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. Agency agrees that it, its employees and agents shall not, bring
onto or use on the Site any Hazardous Materials during the time Agency has possession and/or
ownership of the Site.
J. (§410) Costs of Escrow.
1. Allocation of Costs. The Escrow Agent is authorized to allocate costs as
follows: Agency shall pay the cost of the Title Policy as provided above while Developer shall
pay premiums for any additional insurance, extended coverage or special endorsements. Agency
shall pay the documentary transfer tax as well as all recording fees. Developer and Agency shall
each pay one-half of all escrow and similar fees, except that if one party defaults under this
Agreement, the defaulting party shall pay all escrow fees and charges. Each party shall pay its
own attorneys' fees.
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 Agency responsible for those levied, assessed or imposed prior to Closing and
the Developer responsible for those after Closing. If the actual taxes are not known at the date of
Closing, the proration shall be based upon the most current tax figures. When the actual taxes
for the year of Closing become known, Developer and Agency shall, within thirty days
• thereafter, reprorate the taxes in cash between the parties.
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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 Right 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.
K. 0411) Termination of Escrow.
1. Termination. Escrow may be terminated by demand of either party who
then shall have fully performed its obligations hereunder if:
a. The Conditions to Closing have not occurred or have not been
approved, disapproved, or waived as the case may be, by the approving party by the date
established herein for the occurrence of such Condition, including any grace period pursuant to
• this Section; or
b. Escrow is not in a condition to close by the date set for Closing; or
C. Either party is in breach of the terms and conditions of 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-tenninating party. No demand shall be recognized by the Escrow Agent until thirty (30)
days after the Escrow Agent shall have mailed copies of such demand to the non-terminating
party, and if no objections are raised in writing to the terminating party and the Escrow Agent by
the non-terminating party within the thirty (30) day period. In the event of such objections, the
opportunity to cure shall be provided as stated below in subsection 2 of this Section. In addition,
the Escrow Agent is authorized to hold all money, papers, and documents until instructed in
writing by both Developer and Agency or, upon failure thereof, by a court of competent
jurisdiction. If no such demands are made, the Escrow shall be closed as soon as possible and
neither party shall have any further liability to the other.
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 .
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Conditions still cannot be satisfied may the approving party terminate the Escrow. In the event
• Escrow is not in a condition to close because of a default by any party, and the performing party
has made demand as stated in Subsection 1 of this Section, then upon the non-performing party's
delivering its objection to Escrow Agent and the performing party within the above thirty (30)
day period, the non-performing party shall have the right to cure the default in accordance with
and in the time provided in Section 801.
3. Delivery of Plans, Drawings, and Reports. Upon termination of escrow
for any reason, all plans, drawings, specifications, reports, and other docinnents prepared by
Developer or Developer's contractors or vendors for the Project shall become the property of the
Agency and shall be delivered to Agency by Developer within ten (10) days of receipt of notice
from Agency.
L. 0412) Responsibility of Escrow Agent.
1. Deposit of Funds. In accordance with Section 404, all fiords received in
Escrow shall be deposited by the Escrow Agent in a special escrow account with any state or
national bank doing business in the State of California and may not be combined with other
escrow funds of Escrow Agent or transferred to any other general escrow account or accounts.
2. Notices. All communications from the Escrow Agent shall be directed to
the addresses and in the manner provided in Section 901 of this Agreement for notices, demands
and communications between Agency and Developer.
• 3. Sufficiency of Documents. The Escrow Agent is not to be concerned with
the sufficiency, validity, correctness of form, or content of any document prepared outside of
escrow and delivered to Escrow. The sole duty of the Escrow Agent is to accept such documents
and follow Developer's and Agency's instructions for their use.
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.
5. Responsibilities in the Event of Controversies. If any controversy
documented in writing arises between Developer and Agency or with any third party with respect
to the subject matter of this Escrow or its terms or conditions, the Escrow Agent shall not be
required to determine the same, to return any money, papers or documents, or take any action
regarding the Site prior to settlement of the controversy by a final decision of a court of
competent jurisdiction or written agreement of the parties to the controversy. The Escrow Agent
shall be responsible for timely notifying Developer and Agency of the controversy. In the event
of such a controversy, the Escrow Agent shall not be liable for interest or damage costs resulting
from failure to timely close escrow or take any other action unless such controversy has been
caused by the failure of the Escrow Agent to perform its responsibilities hereunder.
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• V. 0500) DEVELOPMENT OF THE SITE.
A. 0501 ScoyeofDevelo Development.
The Site shall be developed by Developer as provided in the Scope of Development, the
Planned Development District approved by City, the Regulatory Agreement, and the plans and
permits approved by Agency and City pursuant to Section 502.
B. (§502) Development Plans; Final Building Plans.
1. Proposed Development's Consistency With Plan and Codes. Agency
warrants and represents that the City's General Plan, Zoning Ordinance, and Redevelopment
Plan permits Developer's proposed development, and constriction, operation, and use of the Site
as provided in this Agreement, including without limitation the Scope of Development, subject
only to approval of the Project pursuant to Health and Safety Code Sections 33433; provided that
it is expressly understood by the parties hereto that Agency makes no representations or
warranties with respect to approvals required by any other governmental entity or with respect to
approvals hereinafter required from City and Agency, Agency and City reserving full police
power authority over the Project. Nothing in this Agreement shall be deemed to be a
prejudgment or commitment with respect to such items nor a guarantee that such approvals or
permits will be issued within any particular time or with or without any particular conditions.
2. Development Plan. Concurrently with or prior to the approval of this
. Agreement, the Agency has approved the Developer's Basic Concept Drawings, and the City has
approved the Planned Development District for the Project. On or before the date set forth in the
Schedule of Performance, Developer shall submit to the City all other necessary preliminary, and
thereafter final drawings and specifications for development of the Site in accordance with the
Scope of Development, and all in accordance with the City's requirements. The term
preliminary and final drawings shall be deemed to include site plans, building plans and
elevations, grading plans, if applicable, landscaping plans, parking plans, signage, a description
of structural, mechanical, and electrical systems, and all other plans, drawings and specifications.
Final drawings will be in sufficient detail to obtain a building permit. Said plans, drawings and
specifications shall be consistent with the Scope of Development and the various development
approvals referenced hereinabove, except as such items may be amended by City (if applicable)
and by mutual consent of Agency and Developer. Plans (concept, preliminary and construction)
shall be progressively more detailed and will be approved if a logical evolution of plans,
drawings or specifications previously approved. Plans in sufficient detail to obtain all
discretionary land use approvals, including for site plan approval, conditional use permit, and
other actions requiring Planning Commission approval, shall be submitted and processed
concurrently for the Site.
3. Developer Best Efforts to Obtain Approvals. Developer shall exercise its
best efforts to timely submit all documents and information necessary to obtain all development
and building approvals from the City in a timely manner. Not by way of limitation of the
foregoing, in developing and constructing the Project, Developer shall comply with all applicable
• development standards in City's Municipal Code and shall comply with all building code,
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landscaping, signage, and parking requirements, except as may be permitted through approved
variances and modifications.
4. Agency Assistance. Subject to Developer's compliance with (i) the
applicable City and Agency development standards for the Site, and (ii) all applicable laws and
regulations governing such matters as public hearings, site plan review and environmental
review, Agency agrees to provide reasonable assistance to Developer, at no cost to Agency, in
the expeditious processing of Developer's submittals required under this Section in order that
Developer can obtain a final City action on such matters within the time set forth in the Schedule
of Performance. City or Agency's failure to provide necessary approvals or permits within such
time periods, after and despite Developer's reasonable efforts to submit the documents and
information necessary to obtain the same, shall constitute an Enforced Delay.
5. Disapproval. The Agency shall approve or disapprove any submittal made
by Developer pursuant to this Section within forty-five (45) days after such submittal. All
submittals made by Developer will note the 45-day time limit, and specifically reference this
Agreement and this section. Any disapproval shall state in writing the reason for the disapproval
and the changes which the Agency requests be made. Developer shall make the required
changes and revisions and resubmit for approval as soon as is reasonably practicable but no more
than thirty (30) days after the date of disapproval. Thereafter, Agency shall have an additional
thirty(30) days for review of the resubmittal, but if the Agency disapproves the resubmittal, then
the cycle shall repeat, until the Agency's approval has been obtained. The foregoing time
periods may be shortened if so specified in the Schedule of Performance.
• 6. CEQA, The Agency shall be responsible for obtaining the approval of this
Agreement and the Project as required by the California Environmental Quality Act. Without
limitation of the foregoing, Developer specifically acknowledges and agrees that the Developer
shall satisfy all conditions necessary to ensure that the Project conforms to all applicable CEQA
requirements. The Developer agrees to supply information and otherwise assist Agency, upon
Agency's request, to determine the environmental impact of the proposed development and to
allow Agency to prepare and process such environmental documents, if any, as may need to be
completed for the development pursuant to the requirements of CEQA.
C. (�, 503) Developer Responsibilities During Construction.
Except to the extent of the Agency Financial Assistance, the cost of constructing all of
the improvements required to be constructed for the Project shall be borne by Developer, except
for any work expressly set forth in this Agreement to be performed or funded by the Agency or
others. In addition, in developing the Site, Developer shall conduct watering of the ground as
reasonably required by Agency, and take such other actions as Agency shall reasonably require
to minimize the impact of construction and airborne debris on nearby property.
D. (�504) Reserved.
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E. 0505) Schedule of Performance; Progress ss Reports.
Developer shall begin and complete all plans, reviews, construction and development
specified in the Scope of Development within the times specified in the Schedule of Performance
or such reasonable extensions of said dates as may be mutually approved in writing by the
parties.
Once construction is commenced, it shall be diligently pursued to completion, and shall
not be abandoned for more than thirty (30) consecutive days, except when due to an Enforced
Delay. Developer shall keep the Agency informed of the progress of construction and shall
submit monthly to the Agency written reports of the progress of the construction in the form
required by the Agency.
F. (5506) Indemnification During Construction.
During the periods of construction on the Site and until such time as the Agency has
issued a Certificate of Completion with respect to the construction of the improvements thereon,
the Developer agrees to and shall indemnify and hold the Agency and the City harmless from
and against all liability, loss, damage, costs, or expenses (including reasonable attorneys' fees
and court costs) arising from or as a result of the death of any person or any accident, injury,
loss, or damage whatsoever caused to any person or to the property of any person which shall
occur on the Site and which shall be directly or indirectly caused by any acts done thereon or any
errors or omissions of the Developer or its agents, servants, employees, or contractors. The
Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors, or
omissions of the Agency or the City, or their respective agents, servants, employees, or
contractors. The Agency and City shall not be responsible for any acts, errors, or omissions of
any person or entity except the Agency and the City and their respective agents, servants,
employees, or contractors, subject to any and all statutory and other immunities. The provisions
of this Section shall survive the termination of this Agreement.
G. (007) Insurance.
Prior to the entry by Developer on the Site pursuant to Section 409 and prior to the
coinmencement of any construction by Developer on the Project, Developer shall procure and
maintain, at its sole cost and expense, in a form and content satisfactory to Agency, during the
entire term of such entry or construction, the following policies of insurance:
1. Commercial General Liability Insurance. A policy of commercial general
liability insurance written on a per occurrence basis in an amount not less than a combined single
limit of TWO MILLION DOLLARS ($2,000,000.00)
2. Worker's Compensation Insurance. A policy of worker's compensation
insurance in such amount as will fully comply with the laws of the State of California and which
shall indemnify, insure and provide legal defense for both the Developer, Agency, and the City
against any loss, claim or damage arising from any injuries or occupational diseases occurring to
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any worker employed by or any persons retained by the Developer in the course of carrying out
the work or services contemplated in this Agreement.
3. Automobile Insurance. A policy of automobile liability insurance written
on a per occurrence basis in an amount not less than ONE MILLION DOLLARS
($1,000,000.00) combined single limit per accident for bodily injury and property damage
covering owned, leased,hired, and non-owned vehicles.
4. Builder's Risk Insurance. A policy of"builder's risk" insurance covering
the full replacement value of all of the improvements to be constructed by Developer pursuant to
this Agreement, and Developer's personal property and equipment.
All of the above policies of insurance, except the Builder's Risk Insurance, shall be
primary insurance and shall name Agency, City, and their officers, employees, and agents as
additional insureds. The insurer shall waive all rights of subrogation and contribution it may
have against Agency, City, and their officers, employees and agents and their respective insurers.
All of said policies of insurance shall provide that said insurance may not be amended or
cancelled without providing thirty (30) days prior written notice by registered mail to Agency
and City. In the event any of said policies of insurance are cancelled, the Developer shall, prior
to the cancellation date, submit new evidence of insurance in conformance with this Section to
the Executive Director. No work or services under this Agreement shall commence until the
Developer has provided Agency with Certificates of Insurance or appropriate insurance binders
evidencing the above insurance coverages and said Certificates of Insurance or binders are
approved by Agency.
The policies of insurance required by this Agreement shall be satisfactory only if issued
by companies qualified to do business in California, rated "A" or better in the most recent edition
of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a
financial category Class VI[ or better, unless such requirements are waived by the Risk Manager
of the City("Risk Manager") due to unique circumstances.
Developer shall provide in all contracts with contractors, subcontractors, architects, and
engineers that said contractor, subcontractor, architect, or engineer shall maintain the same
policies of insurance required to be maintained by Developer pursuant to this Section, unless
waived or modified by the Risk Manager.
The Developer agrees that the provisions of this Section shall not be construed as limiting
in any way the extent to which the Developer may be held responsible for the payment of
damages to any persons or property resulting from the Developer's activities or the activities of
any person or persons for which the Developer is otherwise responsible.
H. ($508) City and Other Governmental Agency Permits.
Before commencement of construction or development of any buildings, structures, or
other works of improvement upon the Site which are Developer's responsibility under the Scope
of Development, Developer shall at its own expense secure or cause to be secured any and all
permits which may be required by City or any other governmental agency affected by such
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construction, development or work. The Developer shall not be obligated to commence
• construction if any such permit is not issued despite good faith effort by Developer. If there is
delay beyond the usual time for obtaining any such permits due to no fault of Developer, the
Schedule of Performance shall be extended to the extent such delay prevents any action which
could not legally or would not in accordance with good business practices be expected to occur
before such permit was obtained. Developer shall pay all normal and customary fees and
charges applicable to such permits and any fees or charges hereafter imposed by City or Agency
which are standard for and uniformly applied to similar projects in the City.
I. (009) Rights of Access.
Representatives of the Agency shall have the reasonable right of access to the Site
without charges or fees, at any time during normal construction hours during the period of
construction, for the purpose of assuring compliance with this Agreement, including but not
limited to the inspection of the construction work being performed by or on behalf of Developer.
Such representatives of Agency shall be those who are so identified in writing by the Executive
Director of Agency. Each such representative of Agency shall identify himself or herself at the
job site office upon his or her entrance to the Site, and shall provide Developer, or the
construction superintendent or similar person in charge on the Site, a reasonable opportunity to
have a representative accompany him or her during the inspection. Agency shall indemnify,
defend, and hold Developer harmless fiom any injury or property damage caused or liability
arising out of Agency's exercise of this right of access.
• J. (§510Applicable Laws.
Developer shall carry out the construction of the improvements to be constructed by
Developer in conformity with all applicable laws, including all applicable federal and state labor
laws.
K. 0511)Nondiscrimination During Construction.
Developer, for himself and his successors and assigns, agrees that in the construction of
the improvements to be constructed by Developer, it shall not discriminate against any employee
or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry
or national origin.
L. 0512) Taxes, Assessments, Encumbrances and Liens.
Developer shall pay, when due, all real estate taxes and assessments assessed or levied
subsequent to conveyance of title, Until the date Developer is entitled to the issuance by Agency
of a Certificate of Completion, Developer shall not place or allow to be placed thereon any
mortgage, host deed, encumbrance or lien (except mechanic's liens prior to suit to foreclose the
same being filed) prohibited by this Agreement. Developer shall remove or have removed any
levy or attachment made on the Site, or assure the satisfaction thereof, within a reasonable time,
but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit
Developer from contesting the validity or amounts of any tax, assessment, encumbrance or lien,
nor to limit the remedies available to Developer in respect thereto.
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• M. 0513) Rights of Holders of Approved Security Interests in Site.
1. Definitions. As used in this Section, the term "mortgage" shall include
any mortgage, whether a leasehold mortgage or otherwise, deed of trust, or other security
interest, or sale and lease-back, or any other form of conveyance for financing. The term
"holder" shall include the holder of any such mortgage, deed of trust, or other security interest,
or the lessor under a lease-back, or the grantee under any other conveyance for financing.
2. No Encumbrances Except Mortgages to Finance The Project.
Notwithstanding the restrictions on transfer in Section 303, mortgages required for any
reasonable method of financing of the construction of the improvements are permitted before
issuance of a Certificate of Completion but only for the purpose of securing loans of funds used
or to be used for financing the acquisition of the Site, for the construction of improvements
thereon, and for any other expenditures necessary and appropriate to develop the Site under this
Agreement, or for restructuring or refinancing any for same, so long as the refinancing does not
exceed the then outstanding balance of the existing financing, including any additional costs for
completion of construction, whether direct or indirect, based upon the estimates of architects
and/or contractors. The Developer (or any entity permitted to acquire title under this Section)
shall notify the Agency in advance of any mortgage, if the Developer or such entity proposes to
enter into the same before issuance of the Certificate of Completion. The Developer or such
entity shall not enter into any such conveyance for financing without the prior written approval
of the Agency as provided in Section 408, which approval shall not be unreasonably withheld or
delayed. Any lender approved by the Agency pursuant to Section 408 shall not be bound by any
amendment, implementation, or modification to this Agreement subsequent to its approval
without such lender giving its prior written consent thereto. In any event, the Developer shall
promptly notify the Agency of any mortgage, encuunbrance, or lien that has been created or
attached thereto prior to issuance of a Certificate of Completion, whether by voluntary act of the
Developer or otherwise.
3. Developer's Breach Not to Defeat Mortgage Lien. Developer's breach of
any of the covenants or restrictions contained in this Agreement shall not defeat or render invalid
the lien of any mortgage made in good faith and for value as to the Site, or any part thereof or
interest therein, but unless otherwise provided herein, the terns, conditions, covenants,
restrictions, easements, and reservations of this Agreement shall be binding and effective against
the holder of any such mortgage of the Site whose interest is acquired by foreclosure, trustee's
sale or otherwise.
4. Holder Not Obligated to Construct or Complete Improvements. The
holder of any mortgage shall in no way be obligated by the provisions of this Agreement to
constrict or complete the improvements or to guarantee such construction or completion.
Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder
to devote the Site or any portion thereof to any uses, or to constrict any improvements thereon,
other than those uses or improvements provided for or authorized by this Agreement.
5. Notice of Default to Mortgages, Deed of Trust or other Security Interest
Holders. Whenever Agency shall deliver any notice or demand to Developer with respect to any
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• breach or default by Developer hereunder, Agency shall at the same time deliver a copy of such
notice or demand to each holder of record of any mortgage who has previously made a written
request to Agency therefor, or to the representative of such lender as may be identified in such a
written request by the lender. No notice of default shall be effective as to the holder unless such
notice is given.
6. Right to Cure. Each holder (insofar as the rights of Agency are
concerned) shall have the right, at its option, within ninety (90) days after the receipt of the
notice, to:
a. obtain possession, if necessary, and to commence and diligently
pursue said cure until the same is completed, and
b. add the cost of said cure to the security interest debt and the lien or
obligation on its security interest;
provided that in the case of a default which cannot with diligence be remedied or cured within
such ninety (90) day period, such holder shall have additional time as reasonably necessary to
remedy or cure such default.
In the event there is more than one such holder, the right to cure or remedy a breach or
default of Developer under this Section shall be exercised by the holder first in priority or as the
holders may otherwise agree among themselves, but there shall be only one exercise of such
• right to cure and remedy a breach or default of Developer tinder this Section.
No holder shall undertake or continue the construction or completion of the
improvements (beyond the extent necessary to preserve or protect the improvements or
construction already made) without first having expressly asstuned Developer's obligations to
Agency by written agreement satisfactory to Agency with respect to the Site or any portion
thereof in which the holder has an interest. The holder must agree to complete, in the manner
required by this Agreement, the improvements to which the lien or title of'such holder relates,
and submit evidence satisfactory to the Agency that it has the qualifications and financial
responsibility necessary to perform such obligations. Any holder properly completing such
improvements shall be entitled, upon written request made to Agency, to a Certificate of
Completion from Agency.
7. Agency's Rights upon Failure of Holder to Complete Improvements. In
any case where one hundred eighty (180) days after default by Developer in completion of
construction of improvements under this Agreement, the holder of any mortgage creating a. lien
or encumbrance upon the Site or improvements thereon has not exercised the option to construct
afforded in this Section or if it has exercised such option and has not proceeded diligently with
construction, Agency may, after ninety (90) days' notice to such holder and if such holder has
not exercised such option to construct within said tunety(90) day period, purchase the mortgage,
upon payment to the holder of an amount equal to the sum of the following:
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a. The unpaid mortgage debt plus any accrued and unpaid interest
(less all appropriate credits, including those resulting from collection and application of rentals
and other income received during foreclosure proceedings, if any);
b. All expenses incurred by the holder with respect to foreclosure, if
any;
C. The net expenses (exclusive of general overhead), incurred by the
holder as a direct result of the ownership or management of the Site, such as insurance premiums
or real estate taxes, if any;
d. The costs of any improvements made by such holder, if any; and
e. An amount equivalent to the interest that would have accrued on
the aggregate of such amounts had all such amounts become part of the mortgage debt and such
debt had continued in existence to the date of payment by the Agency.
In the event that the holder does not exercise its option to construct afforded in this
Section, and Agency elects not to purchase the mortgage of holder, upon written request by the
holder to Agency, Agency agrees to use reasonable efforts to assist the holder selling the holder's
interest to a qualified and responsible party or parties (as determined by Agency), who shall
assume the obligations of making or completing the improvements required to be constructed by
Developer, or such other improvements in their stead as shall be satisfactory to Agency. The
• proceeds of such a sale shall be applied first to the holder of those items specified in
subparagraphs a. through e. hereinabove, and any balance remaining thereafter shall be applied
as follows:
1. First, to reimburse Agency, on its own behalf and on behalf of the City, for all
costs and expenses actually and reasonably incurred by Agency, including but not limited to
payroll expenses, management expenses, legal expenses, and others.
2. Second, to reimburse Agency, on its own behalf and on behalf of the City, for all
payments made by Agency to discharge any other encumbrances or liens on the Site or to
discharge or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults, or acts of Developer, its successors or transferees.
3. Third, to reimburse Agency, on its own behalf and on behalf of the City, ]For all
costs and expenses actually and reasonably incurred by Agency, in comiection with its efforts
assisting the holder in selling the holder's interest in accordance with this Section.
4. Fourth, any balance remaining thereafter shall be paid to Developer.
8. Right of Agency to Cure Mortgage, Deed of Trust or Other Security
Interest Default, In the event of a default or breach by Developer (or entity permitted to acquire
title under this Section) of a mortgage prior to the issuance by Agency of a Certificate of
Completion for the Site or portions thereof covered by said mortgage, and the holder of any such
mortgage has not exercised its option to complete the development, Agency may cure the default
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• prior to completion of any foreclosure. In such event, Agency shall be entitled to reimbursement
from Developer or other entity of all costs and expenses incurred by Agency in curing the
default, to the extent permitted by law, as if such holder initiated such claim for reimbursement,
including legal costs and attorneys' fees, which right of reimbursement shall be secured by a lien
upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to:
a. Any mortgage for financing permitted by this Agreement; and
b. Any rights or interests provided in this Agreement for the
protection of the holders of such mortgages for financing;
provided that nothing herein shall be deemed to impose upon Agency any affirmative obligations
(by the payment of money, construction or otherwise) with respect to the Site in the event of its
enforcement of its lien.
9. Right of Agency to Satisfy Other Liens on the Site After Conveyance of
Title. After the conveyance of title and prior to the recordation of a Certificate of Completion for
construction and development, and after the Developer has had a reasonable time to challenge,
cure, or satisfy any liens or encumbrances on the Site or any portion thereof, the Agency shall
have the right to satisfy any,such liens or encumbrances; provided, however, that nothing in this
Agreement shall require the Developer to pay or make provision for the payment of any tax,
assessment, lien or charge so long as the Developer in good faith shall contest the validity or
amount thereof, and so long as such delay in payment shall not subject the Site or any portion
• thereof to forfeiture or sale.
N. 0514) Certificate of Completion.
Upon the completion of all construction required to be completed by Developer on the
Site, Agency shall fiunish Developer with a Certificate of Completion for the Site in the form
attached hereto as Attachment No. 7 upon written request therefor by Developer. The Certificate
of Completion shall be executed and notarized so as to permit it to be recorded in the office of
the Recorder of Riverside County. A Certificate of Completion shall be, and shall state that it
constitutes, conclusive determination of satisfactory completion of the construction and
development of the improvements required by this Agreement upon the Site and of full
compliance with the terms of this Agreement with respect thereto. A partial Certificate of
Completion applicable to less than the entire Site shall not be permitted.
After the issuance of a Certificate of Completion, any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such
ownership, purchase, lease, or acquisition) incur any obligation or liability under this Agreement
with respect to the Site, except that such party shall be bound by the covenants, encumbrances,
and easements contained in the Deed and the Regulatory Agreement attached hereto. After
issuance of a Certificate of Completion, the Agency shall not have any rights or remedies under
this Agreement with respect to the Site, except as otherwise set forth or incorporated in the Deed
or the Regulatory Agreement.
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Agency shall not unreasonably withhold a Certificate of Completion. If Agency refuses
• or fails to furnish a Certificate of Completion within thirty (30) days after written request from
Developer or any entity entitled thereto, Agency shall provide a written statement of the reasons
Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain
Agency's opinion of the action Developer must take to obtain a Certificate of Completion. If the
reason for such refusal is confined to the immediate availability of specific items or materials for
landscaping, or other minor so-called "punch list" items, Agency will issue its Certificate of
Completion upon the posting of a bond in an amount representing one hundred fifty percent
(150%) of the fair value of the work not yet completed or other assurance reasonably satisfactory
to Agency.
A Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements, or any part thereof. Such
Certificate of Completion is not notice of completion as referred to in the California Civil Code
Section 3093. Nothing herein shall prevent or affect Developer's right to obtain a Certificate of
Occupancy from the City before the Certificate of Completion is issued.
O. ($515) Estop els.
No later than thirty (30) days after the request of Developer or any holder of a mortgage
or deed of trust, Agency shall, from time to time and upon the request of such holder, execute
and deliver to Developer or such holder a written statement of Agency that no default or breach
exists (or would exist with the passage of time, or giving of notice or both) by Developer under
this Agreement, if such be the determination of the Agency, and certifying as to whether or not
Developer has at the date of such certification complied with any obligation of Developer
hereunder as to which such holder may inquire. The form of any estoppel letter shall be prepared
by the holder or Developer and shall be at no cost to Agency.
VI. (&600) USES AND MAINTENANCE OF THE SITE
A. (5601)Uses of the Site.
The Developer 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 Developer,
that during development of the Site pursuant to this Agreement and thereafter, 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,
Developer 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, of 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.
Notwithstanding anything to the contrary or that appears to be to the contrary in this
Agreement, Developer 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
• Developer, that, Developer and such successors and assigns shall use the Site solely for the
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• purpose of constructing, maintaining and operating a residential rental project meeting the
requirements and restrictions of this Agreement, the Grant Deed, and the Regulatory Agreement,
including, without limitations, restriction of the rental and occupancy of the Restricted Units
only to Qualified Tenants for a rent not in excess of an Affordable Rent for the period specified
herein.
B. 0602)Affordable Housing.
1. Construction of Affordable Housing. The Developer covenants and agrees
to construct a total of sixty-six (66) Units, including thirty-two (32) Restricted Units and one (1)
Manager's Unit, in conformity with the Scope of Development. All of the Restricted Units shall
be restricted to rental at an Affordable Rent to Very Low and Low Income Households. The
ratio shall be 50150 between Very Low and Low Income Households. The Units, including the
Manager's Unit, shall be composed of 8 one-bedroom units, 20 two-bedroom units, 30 three-
bedroom units, and 8 four-bedroom units. The location, size and specifications of the Restricted
Units shall be as set forth in the Scope of Development. All Restricted Units shall be subject to
and shall be leased in compliance with the Tenant Selection Criteria attached thereto.
2. Restricted Unit Requirements. All Restricted Units constructed pursuant
to this Agreement shall be occupied at all times only by the household of the Qualified Tenant
who has rented that Restricted Unit. Developer covenants to cooperate with Agency in taking all
steps necessary to implement this requirement with respect to all Qualified Tenants. In addition,
all Qualified Tenants shall meet and shall be prioritized in accordance with the Tenant Selection
• Criteria. The restrictions upon rental and use of each Restricted Unit shall continue for a period
of fifty-five (55) years from the recordation of Certificate of Completion.
3. Leasing of Residences by Developer.
a. Marketing Program. Prior to the deadline specified in the
Schedule of Performance, Developer shall prepare and obtain Agency's approval (which shall
not be unreasonably withheld) of a marketing and leasing program ("Approved Marketing
Program") for the selection of tenants for the Restricted Units at the Project. The Restricted
Units shall thereafter be marketed in accordance with the Approved Marketing Program as the
same may be amended by Developer from time to time with Agency's prior written approval,
which shall not be unreasonably withheld. Monthly during the initial lease-up period, and
annually thereafter, Developer shall provide Agency with a report with respect to Restricted
Units under lease, leases in default, status of implementation of the Approved Marketing
Program, and such other information as Agency may reasonably request. Agency agrees to
exercise reasonable efforts to assist Developer in connection with implementation of the
Approved Marketing Program; provided, Agency shall not be under any obligation to incur any
out-of-pocket expenses in connection therewith.
b. Restricted Residences. As set forth above, each of the Restricted
Units shall be rented to a Qualified Tenant for a rental rate which does not exceed an Affordable
Rent for the applicable Restricted Unit.
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• C. Ammal Tenancy Report. Developer shall provide Agency
annually, by January 31, with a report on Project occupancy for each Restricted Unit, including
information concerning the number of months during which each Restricted Unit was occupied,
and the income category of each tenant household occupying a Restricted Unit. The annual
report and Developer'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 Developer, or any person claiming under or through Developer,
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. 0604) Form of Nondiscrimination and Nonsegregation Clauses.
Subject to the tenancy/occupancy restrictions on the Restricted Units not prohibited by
federal law as embodied in this Agreement, which may modify the following nondiscrimination
clauses, the following shall apply: Developer 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:
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
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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 Developer or Developer's heirs,
executors, administrators, or assigns propose to enter into for the sale, transfer, or leasing of the
Site shall contain a nondiscrimination and nonsegregation clause substantially as set forth in
Section 603 and in this Section. Such clause shall bind the contracting party and subcontracting
party or transferee under the instrument.
E. 0605) Maintenance of Improvements.
Developer covenants and agrees for itself, its successors and assigns, and every successor
in interest to the Site or any part thereof, that, after Agency's issuance of its Certificate of
Completion the Developer shall be responsible for maintenance of all improvements that may
exist on the Site from time to time, including without limitation buildings, parking lots, lighting,
signs, and walls, in first-class condition and repair, and shall keep the Site free from any
accumulation of debris or waste materials. The Developer shall also maintain all landscaping
required pursuant to Developer's approved landscaping plan in a healthy condition, including
replacement of any dead or diseased plants. The foregoing maintenance obligations shall run
with the land in accordance with and for the term of the Regulatory Agreement. Developer's
further obligations to maintain the Site, and Agency's remedies in the event of Developer's
default in performing such obligations, are set forth in the Regulatory Agreement. Developer
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
Agreement. Upon the sale of any portion of the Site, Developer (but not Developer's successor)
shall be released from the requirements imposed by this Section 605, and the financial liability
therefor, as to the portion of the Site conveyed.
F. 0606) Effect of Covenants.
Agency is deemed a beneficiary of the terms and provisions of this Agreement and of the
restrictions and covenants running with the land, whether appearing in the Deed 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.
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VIL, 0700) SPECIAL PROVISIONS
A. Reserved
V111. 0800) DEFAULTS,REMEDIES AND TERMINATION
A. 0801)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. (5802)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
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 Eastern Division of 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. hi the event that any legal action is
commenced by Developer against Agency, service of process on Agency shall be made by
personal service upon the Executive Director or Secretary of Agency, or in such other manner as
may be provided by law.
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• In the event that any legal action is commenced by Agency against Developer, service of
process on Developer shall be made in such manner as may be provided by law and shall be
valid whether made within or without the State of California.
C. 0803) 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 either party of one or more of its rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party.
D. (§804) Specific Performance.
In addition to any other remedies permitted by this Agreement, if either party defaults
hereunder by failing to perform any of its obligations herein, each party agrees that the other
shall be entitled to the judicial remedy of specific performance, and each party agrees (subject to
its reserved right to contest whether in fact a default does exist) not to challenge or contest the
appropriateness of such remedy. In this regard, Developer specifically acknowledges that
Agency is entering into this Agreement for the purpose of assisting in the redevelopment of the
Site and not for the purpose of enabling Developer to speculate with land.
E. ($805) Right of Reverter.
The Agency shall have the right, at its option, to reenter and take possession of the Site or
any portion thereof with all improvements thereon and to terminate and revest in the Agency the
estate conveyed to the Developer, if after conveyance of the estate and prior to the recordation of
the Certificate of Completion, the Developer(or its successors in interest) shall:
1. Fail to commence construction of the improvements as required by this
Agreement, if such failure is in violation of the Schedule of Performance, for a period of 90 days
after written notice to proceed from the Agency, provided that the Developer shall not have
obtained an extension or postponement to which the Developer may be entitled pursuant to this
Agreement; or
2. Abandon or substantially suspend construction of the improvements for a
period of 90 days after written notice of such abandonment or suspension from the Agency,
provided that the Developer shall not have obtained an extension of time to which the Developer
may be entitled pursuant to this Agreement; or
3. Assign or attempt to assign this Agreement, or any rights herein, or
transfer, or suffer any involuntary transfer of, the Site, or any part thereof, in violation of this
Agreement, and such violation shall not be cured within one hundred twenty(120) days after the
date of receipt of written notice thereof by the Agency to the Developer.
Agency's right to re-enter, repossess, terminate, and revest shall be secured by the Deed
of Trust attached hereto as Attachment No. 8; provided, however, that Agency's rights shall be
• subject to and be limited by and shall not defeat, render invalid, or limit:
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1. Any mortgage, deed of trust, or other security interests permitted by this
• Agreement.
2. Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages, deeds of trust, or other security interests.
Upon the revesting in the Agency of possession of the Site, or any part thereof, as
provided in this Section 805, the Agency shall, pursuant to its responsibilities under state law,
use its best efforts to release, or resell the Site, as the case may be, or any part thereof, as soon
and in such manner as the Agency shall find feasible and consistent with the objectives of such
law and of the Redevelopment Plan to a qualified and responsible party or parties (as determined
by the Agency), who will assume the obligation of making or completing the improvements, or
such other improvements in their stead, as shall be satisfactory to the Agency and in accordance
with the uses specified for the Site, or any part thereof, in the Redevelopment Plan.
In the event of a resale, the proceeds thereof shall be applied as follows:
a. First, to reimburse the Agency on its own behalf or on behalf of the City
for all costs and expenses incurred by the Agency, including but not limited to, salaries to
personnel, legal costs and attorneys' fees, and all other contractual expenses in connection with
the recapture, management, and resale of the Site (but less any income derived by the Agency
from the Site or part thereof in connection with such management); all taxes, assessments and
water and sewer charges with respect to the Site (or, in the event the Site is exempt from taxation
or assessment or such charges during the period of ownership, then such taxes, assessments, or
charges, as determined by the City, as would have been payable if the Site were not so exempt);
any payments made or necessary to be made to discharge or prevent from attaching or being
made any subsequent encumbrances or liens due to obligations incurred with respect to the
making or completion of the agreed improvements or any part thereof on the Site or part thereof,
and amounts otherwise owing the Agency by the Developer, its successors, or transferees; and
b. Second, to reimburse the Developer, its successor or transferee, up to the
amount equal to (i) the sum of the Purchase Price paid to the Agency by the Developer for the
Site, (ii) the costs incurred for the development of the Site and for the agreed improvements
existing on the Site at the time of the re-entry and repossession, less (iii) any gains or income
withdrawn or made by the Developer from the Site or the improvements thereon.
C. Any balance remaining after such reimbursements shall be retained by the
Agency as its property.
To the extent that the right established in this Section involves a forfeiture, it must be
strictly interpreted against the Agency, the party for whose benefit it is created. The rights
established in this Section are to be interpreted in light of the fact that the Agency will sell the
Site to the Developer for less than fair market value for development as an affordable housing
project, and not for speculation in undeveloped land.
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• F. (b806) Attorney's Fees.
If either party to this Agreement is required to initiate or defend any action or proceeding
in any way arising out of the parties' agreement to, or performance of, this Agreement, or is
made a party to any such action or proceeding by the Escrow Agent or other third party, such
that the parties hereto are adversarial, the prevailing party, as between the Developer and Agency
only, in such action or proceeding, in addition to any other relief which may be granted, whether
legal or equitable, shall be entitled to reasonable attorney's fees from the other. As used herein,
the "prevailing party" shall be the party determined as such by a court of law, pursuant to the
definition Code of Civil Procedure Section 1032(a)(4), as it may be subsequently amended.
Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to
attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking
depositions and discovery and all other necessary costs the court allows which are incurred in
such litigation. All such fees shall be deemed to have accrued on commencement of such action
and shall be enforceable whether or not such action is prosecuted to judgment.
IX. (5900) GENERAL PROVISIONS
A. (&901)Notices, Demands and Communications Between the Parties.
Except as expressly provided to the contrary herein, any notice, consent, report, demand,
document or other such item to be given, delivered, furnished or received hereunder shall be
deemed given, delivered, furnished, and received when given in writing and personally delivered
• to an authorized agent of the applicable party, or upon delivery by the United States Postal
Service, first-class registered or certified mail, postage prepaid, return receipt requested, or by a
national "overnight courier" such as Federal Express, at the time of delivery shown upon such
receipt; 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: Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
Copy to: n. v Williams & ec,.,ise Lr n
4S-30-l�Aleshire & Wynder, LLPy I`
18881 Von Karman Avenue, Suite 4450400
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
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Developer: inset Hacienda PartriersSunset Affordable
• Housing Associates
c/o Coachella Valley Housing Coalition
45-701 Monroe Street, Suite G, Plaza I
Indio, CA 92201
Attn: General Partner
Copy to: Gubb &Barshay, LLP
50 California Street, Suite 3155
San Francisco, CA 94111
Attn: Natalie Gubb, Esq.
Copy to: NEF Assignment Comoration
c/o National Equity Fund, hie.
120 S. Riverside Plaza, 151h Floor
Chicago, IL 60606-3908
Attn: General Counsel
B. 0902) Nordiability of City and Agency Officials and Employees; Conflicts of
Interest; Commissions.
1. Personal Liability, No member, official, employee, agent or contractor of
City or Agency shall be personally liable to Developer in the event of any default or breach by
Agency or for any amount which may become due to Developer or on any obligations under the
terms of the Agreement; provided, it is understood that nothing in this Section 902 is intended to
limit Agency's liability.
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. Neither the Agency nor the Developer has retained any
broker or finder or has paid or given, and will not pay or give, any third person any money or
other consideration for obtaining this Agreement. Neither party shall be liable for any real estate
commissions, brokerage fees or finders fees which may arise from this Agreement, and each
party agrees to hold the other harmless from any claim by any broker, agent, or finder retained
by such party.
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C. (§903) Enforced Delay: Extension of Times of Performance.
• Time is of the essence in the performance of this Agreement.
Notwithstanding the foregoing, in addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in default where delays or
defaults are due to war; insurrection; strikes; lock-outs; riots, floods; earthquakes; fires;
casualties; supernatural causes; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; subsurface conditions on the Site and unknown soils
conditions; governmental restrictions or priority litigation; unusually severe weather; inability to
secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier;
acts of the other party; acts or the failure to act of a public or governmental agency or entity
(except that acts or the failure to act of Agency or City shall not excuse performance by Agency
unless the act or failure is caused by the acts or omissions of Developer); or any other causes
beyond the reasonable control or without the fault of the party claiming an extension of time to
perform. In the event of such a delay (herein "Enforced Delay"), the party delayed shall
continue to exercise reasonable diligence to minimize the period of the delay. An extension of
time for any such cause shall be limited to the period of the enforced delay, and shall commence
to run from the time of the commencement of the cause, provided notice by the party claiming
such extension is sent to the other party within ten(10) days of the commencement of the cause.
The following shall not be considered as events or causes beyond the control of
Developer, and shall not entitle Developer to an extension of time to perform: (i) Developer's
• failure to obtain financing for the Project (except as provided in Section 401), and (ii)
Developer's failure to negotiate agreements with prospective users for the Project or the alleged
absence of favorable market conditions for such uses.
Times of performance under this Agreement may also be extended by mutual written
agreement by Agency and Developer. The Executive Director of Agency shall have the
authority on behalf of Agency to approve extensions of time not to exceed a cumulative total of
one hundred eighty(180) days with respect to the development of the Site.
D. 0904)_Books and Records.
1. Developer to Keep Records. Developer shall prepare and maintain all
books, records and reports necessary to substantiate Developer's compliance with the terns of
this Agreement or reasonably required by the Agency.
2. Right to Ins.— h _pact. 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. All drawings, specifications, reports, records,
documents and other materials prepared by Developer, its employees, agents and subcontractors,
in the performance of this Agreement, shall be delivered to Agency in the event of a termination
of this Agreement, and Developer shall have no claim for additional compensation as a result of
• the exercise by Agency of its rights hereunder. The Agency shall have an unrestricted right to
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• use such documents and materials as the owner of the same. Developer makes no warranty or
representation regarding the accuracy or sufficiency of such documents for any future use by
Agency, and Developer shall have no liability therefor.
E. (5905) Assurances to Act in Good Faith.
Agency and Developer agree to execute all documents and instruments and to take all
action, including deposit of funds in addition to such funds as may be specifically provided for
herein, and as may be required in order to consummate conveyance and development of the Site
as herein contemplated, and shall use their best efforts, to accomplish the closing and subsequent
development of the Site in accordance with the provisions hereof. Agency and Developer shall
each diligently and in good faith pursue the satisfaction of any conditions or contingencies
subject to their approval.
F. 0, 906 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply. The Section
headings are for purposes of convenience only, and shall not be construed to limit or extend the
meaning of this Agreement. This Agreement includes all attachments attached hereto, which are
by this reference incorporated in this Agreement in their entirety. This Agreement also includes
the Redevelopment Plan and any other documents incorporated herein by reference, as though
• fully set forth herein.
G. 0907) Entire Agreement, Waivers and Amendments.
This Agreement integrates all of the terms and conditions mentioned herein, or incidental
hereto, and this Agreement supersedes all negotiations and previous agreements between the
parties with respect to all or any part of the subject matter hereof. All waivers of the provisions
of this Agreement, unless specified otherwise herein, must be in writing and signed by the
appropriate authorities of Agency or Developer, as applicable, and all amendments hereto must
be in writing and signed by the appropriate authorities of Agency and Developer.
H. (008) 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.
• #19074 v2 Su et-Haeienda-R.;:ef DDAHacieuda
previously IRV#22674 v5 — Sunset Affordable
Housing Associates DDA
VA 1A *•��
I. 0909)Effect of Redevelopment Plan Amendment.
Pursuant to the provisions of the Redevelopment Plan for modification or amendment
thereof, Agency agrees that no farther amendment to the Redevelopment Plan which changes the
uses or development permitted on the Site, or changes the restrictions or controls that apply to
the Site, or otherwise affects the Site, shall be made or become effective as to the Site without
the prior written consent of Developer. Further amendments to the Redevelopment. Plan
applying to other property in the Project Area shall not require the consent of Developer.
J. (�, 910)_Time for Acceptance of Agreement by Agency.
This Agreement, when executed by Developer and delivered to Agency, must be
authorized, executed and delivered by Agency, not later than the time set forth in the Schedule of
Performance or this instrument shall be void, except to the extent that Developer shall consent in
writing to further extensions of time for the authorization, execution, and delivery of this
Agreement. After execution by Developer, this Agreement shall be considered an irrevocable
offer until such time as such offer shall become void due to the failure of the Agency to
authorize, execute and deliver the Agreement in accordance with this Section.
K. (§911) 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. Developer represents and warrants that: (i) it is duly organized and
existing under the laws of the State of California; (ii) by proper action of Developer, Developer
has been duly authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers; and (iii) the entering into this Agreement by Developer does not violate any
provision of any other agreement to which Developer is a party.
[END-- SIGNATURES ON NEXT PAGE]
#I9074 v2 Sunset-Hari end -PaFft s-DDAHacienda
previously IRV 922674 v5 -43 ' Sunset Affordable
Housing Associates DDA
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 Chairman
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
•
David J. Aleshire, Agency Counsel
"DEVELOPER"
SLWSET I4AC- ~wM kRq-N R-S
vr�rm�rnz'ct✓i.��r�rrrz�rrzca
HACIENDA SUNSET AFFORDABLE HOUSING
ASSOCIATES
a California limited partnership
Date: By:
Its: General Partner
[END OF SIGNATURES]
#19074 v2 44 Sunset44ae+erode-PaAuers-BDA11acienda
previously IRV#22674 v5 — — Sunset Affordable
Housing-Assoc iates DDA
• ATTACHMENT NO. 1
SUNSET H A GIFT M A D A D TTTCD S
HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES
SITE MAP
[To Be Inserted]
•
• 919074 v2 ATTACHMENTNO I
previously IRV#22674 v5 TO 8UNSET HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
PAGE 1 Of 1 � D
CRC
ATTACHMENT NO. 2
eT'^S�HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
LEGAL DESCRIPTION
That certain real property located in the City of Palm Springs, County of Riverside, State of
California, more particularly described as follows:
LOTS 7 AND 8 OF TRACT NO. 17642-1 AS SHOWN BY MAP ON FILE IN
BOOK 122, PAGES 88 THROUGH 90, INCLUSIVE, OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ANY PORTION WITHIN LOT I OF TRACT 26943-1, AS SHOWN
BY MAP ON FILE IN BOOK 235, PAGES 84 AND 85 OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
ALSO EXCEPT ANY PORTION WITHIN TRACT 17642-2 AS SHOWN BY
MAP ON FILE IN BOOK 124, PAGES 27 AND 28 OF MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 669-500-013
APN: 669-500-015
APN: 669-500-017
. #19074 v2 ATTACHMENT NO.2
previously IRV#22674 v5 TO SUNSFff—HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
CF��1� .51
ATTACHMENT NO. 3
S" TSETHACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
SCHEDULE OF PERFORMANCE
Item To Be Performed Time for Performance Agreement
Reference
1. Developer executes and On or before July 10, 2002
delivers DDA to Agency
2. Agency holds public hearing on July 3, 2002
DDA
3. Agency approves or On or before July 10, 2002 810
disapproves DDA and, if
approves, executes DDA
4. Developer shall apply for Tax On or before July 17, 2002; 401
Credit financing. provided that if Developer is
not successful in obtaining an
• award from the Tax Credit
Allocation Committee in the
2002 funding cycle, the
Developer shall submit a
second and, if necessary, a
third application in the 2003
funding cycle. All times listed
in this Schedule of
Performance shall be extended
to the extent necessary to
provide for the second and
potentially third application.
Developer shall have until
June 30, 2004 to obtain
alternative financing in the
event of failure to obtain tax
credit allocation.
• #19074 v2 ATTACHMENT NO 3
previously-RV#22674 v5 TO SBNSE-T-HACIENDA SUNSET
AFFORDA13LE HOUSING ASSOCIATES
DDA
A Pace 1 of 5
^ff
• Item To Be Performed Time for Performance Agreement
Reference
5. Open Escrow for the Within two (2) weeks after 404
conveyance of the Site from Developer notifies Agency
Agency to Developer that it has received a
commitment of Low Income
Housing Tax Credits or
alternative financing.
6. Developer provides Agency Within 90 days after award of 405.2; 408
with evidence of financial Tax Credit allocations, but
capability, commitment and prior to issuance of building
lender permits
7. Agency approves evidence of Within 30 days after receipt by 405.2(a)
financial capability and lender Agency
8. Agency delivers to Developer Within 30 days after opening 407.4
Preliminary Title Report Escrow
9. Developer approves or Within 15 days after delivery 407.4
disapproves title exceptions of Preliminary Title Report to
Developer
• 10. Agency delivers notice to Within 15 days after receipt of 407.4
Developer as to whether it will Developer's notice
cure disapproved exceptions
11. [Developer prepares and [Within 90 days after Agency 502.2
submits to City and Agency executes the DDA]
preliminary and, thereafter,
final drawings and
specifications prepared in
accordance with Concept
Drawings and Site Plan,
including architectural theme
and treatment]
12. [City and Agency approve (or [Within times set forth in 502.2; 502.5
disapprove) preliminary and, Section 502]
thereafter, final drawings and
specifications, and if
disapproves, Developer revises
and resubmits preliminary or
final drawings]
• #19074 v2 ATTACHMENT NO.3
previously IRV#22674 v5 TO SUNSET HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA 53PAGE 2 OF 5
CIO
Item To Be Performed Time for Performance Agreement
Reference
13. Escrow Agent gives notice of One (1) week prior to Closing 407.2
fees, charges, and costs to close
Escrow
14. Deposits into Escrow by
Agency:
a) Executed Deed On or before 1:00 p.m. on the 406.3
last business day preceding the
Closing Date
b) Estoppel Certificate On or before 1:00 p.m. on the 406.3
last business day preceding the
Closing Date
c) Payment of Agency's share On or before 1:00 p.m. on the 406.3; 410
of Escrow Costs. last business day preceding the
Closing Date
• d) Taxpayer ID Certificate Prior to Closing Date 406.3
e) FIRPTA Certificate Within 15 days after opening 406.1
15. Deposits into Escrow by
Developer:
a) Estoppel Certificate On or before 1:00 p.m. on the 406.4
last business date preceding
the Closing Date
b) Regulatory Agreement, On or before 1:00 p.m. on the 406.4
Deed of Trust, and last business date preceding
Agency Note the Closing Date
c) Payment of Developer's On or before 1:00 p.m. on the 406.4; 410
Share of Escrow Costs last business date preceding
the Closing Date
d) Certificates evidencing Prior to closing, site 507
insurance preparation or construction
• #19074 v2 ATTACHMENT NO.3
previously IRV#22674 v5 TO°??roT7oBT-}IACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA s ��
PACE 3 OF 5
CPR #
Item To Be Performed Time for Performance Agreement
• Reference
16. Agency or Developer, as case Within 30 days after date 411.2; 801
may be, may care any condition established therefor, or date of
to closing disapproved or breach, as the case may be
waived; or may cure any
default
17. Close of Escrow for the Site; As soon as possible, but not 405; 406
recordation and delivery of later than [September, 2004]
documents
18. Developer obtains all necessary Within [30] days after Close of
permits and approvals, submits Escrow
certificates of insurance, and
commences construction of
improvements on the Site
19. Agency disburses Agency After verification that work is 403
Financial Assistance to completed and within the
Developer pursuant to submittal amounts allocated for each
and reimbursement year
• requirements in Section 403
20. Developer completes Within twenty-four (24) 505
construction of improvements months after issuance of
on the Site. building permits for the first
Unit.
21. Agency issues Certificate of Within 30 days of written 514
Completion for the Site. request by Developer, and
Developer's satisfactory
completion of all
improvements on the Site.
22. Developer shall achieve at least Not later than six (6) months
a ninety percent (90%) lease-up after completion of
rate of the Project: construction on the Site
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
• #19014 v2 ATTACHMENT NO.3
previously IRV#22674 v5 TO SUNSET-HACIENDA SUNSET If
AFFORDABLE HOUSING ASSOCIATES
DDA
PAGE 4 OF 5
O� h
description in the text; in the event of any conflict or inconsistency between this Schedule of
• Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended
only by written agreement signed by both Developer and Agency. A failure by either party to
enforce a breach of any particular time provision shall not be construed as a waiver of any other
time provision. The Executive Director of Agency shall have the authority to approve extensions
of time without Agency Board action not to exceed a cumulative total of 180 days as provided in
Section 903.
•
• #19074 v2 ATTACHMENT NO.3
previously IRV#22674 v5 TO SUNSET' HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
/^•PAGE 5 OF 5
V h• �
ATTACHMENT NO. 4
STD&E-T-HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
SCOPE OF DEVELOPMENT
1. PROJECT CONCEPT
The Project Concept encompasses the development and operation by Developer of an
approximately 6.2 acre site (hereinafter "Site") in the City of Palm Springs. The Developer shall
develop and operate the Site in accordance with the terms of the Agreement with a quality
residential development containing (i) sixty-six (66) rental dwelling units, including 8 one-
bedroom, 20 two-bedroom/one bath units, 30 three-bedroom/two bath units, and 8 four-bedroom
units; (ii) a laundry/community/restroom building; (iii) three (3) a tot lot areas; (iv) an 800 s.f.
cormmmity pool; and (v) other related amenities, all as described in the plans approved by the
City in connection with the City's approval of the Planned Development District for the Project.
The 66 Units will range in size from approximately 904 square feet (for the two-bedroom Units)
to 1,403 square feet (for the four-bedroom Units). Thirty-two (32) of the units shall be
Restricted Units, which will be restricted to rental at an Affordable Housing Cost to Very Low
and Low Income Households, as provided in this Agreement.
The Developer and Agency agree that the Site shall be developed and improved by
Developer in accordance with the provisions of this Agreement, which includes the Planned
Development District, subject to all applicable codes, ordinances, and statutes including
requirements and procedures set forth in the Palm Springs Municipal Code and the
Redevelopment Plan, adopted in conjunction with or subsequent to adoption of this Agreement.
Any issues regarding the Scope of Development that are not resolved herein or in the Agreement
shall be resolved in accordance with the Palm Springs Municipal Code. Upon completion, the
Site shall be operated by Developer as rental housing for low and very low income households in
accordance with the Regulatory Agreement. The Developer shall not sell any portion of the Site
except as provided in the Regulatory Agreement.
2. SITE DESCRIPTION
The Site is located on the west side of Sunrise Way, just north of San Rafael Road, as
more fully described in the Site Map attached to the Agreement as Attachment No. 1.
3. DEMOLITION AND CLEARANCE
With the exception of any specified agency assistance reimbursements in paragraph 6, the
Developer shall be responsible for all on-site work and improvements, including, but not limited
to the following:
1. Developer shall be responsible for all demolition, removal, utility
relocation, and other work necessary to prepare the Site for the improvements contemplated by
419074 v2 ATTACHMENT NO.4
previously IRV#22674 v5 TO°T'*' .erT HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
PAGE l of 3
em I by �7
the Agreement, and shall be responsible for all construction and configuration of the Restricted
• Units in accordance with the approved plans thereof.
2. Restoring those streets adjacent to the Site, if any, that undergo utility
trenching needed to provide house connections to service the Site. The streets shall be restored
to the condition prior to construction, with materials acceptable to the City Engineer.
3. The Developer shall be responsible for the repair and protection of off-site
improvements during construction of the on-site improvements. Any off-site improvements
found damaged shall be reconstructed or provided for by the Developer to the satisfaction of the
Director of Public Works.
4. Developer shall plant or provide for street trees adjacent to the Site,
including tree root barriers, to the satisfaction of the Director of Public Works. All required
street trees, and any landscaping and sprinkler systems, shall be maintained by the Developer
and/or successors.
5. Developer shall provide or construct sidewalks, as shown on the approved
Conceptual Plans, to the satisfaction of the Director of Public Works.
6. Developer shall submit a drainage plan with hydrology and hydraulic
calculations, if requested, showing building elevations and drainage patterns and slopes, for
review and approval by the Director of Planning and Building and the Director of Public Works.
All required drainage/grading shall be provided in accordance with approved plans.
4. SITE PREPARATION
Developer shall, at its sole cost and expense, perform or cause to be performed grading
plan preparation, fine grading and related compaction, and other site preparation as necessary for
construction of the Project, as approved by the City Engineer/Public Works Director. Plans shall
be prepared by a licensed civil engineer in good standing and subject to the approval of the City
Engineer/Public Works Director.
Developer shall, at its sole cost and expense, scarify, over-excavate, cut, fill, compact,
rough grade, and/or perform all grading as required pursuant to an approved grading plan(s) to
create finished lots, building pads, and appropriate rights-of-way configurations necessary to
develop the Project described herein.
5. PROJECT DESIGN
a. Architectural Concept
The Project shall be designed and constricted as an integrated development in which the
buildings shall have architectural excellence. The improvements to be constructed on the Site
shall be of high architectural quality, shall be well landscaped, and shall be effectively and
aesthetically designed, in accordance with the approved Planned Development District. The
• #19074 v2 ATTACHMENT NO.4
RyeviOUSIV IRV#22674 v5 TO SUNSET HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
PAGE of 3
'4** 't -,69
shape, scale of volume, exterior design, and exterior finish of each building, structure, and other
improvements must be consonant with, visually related to, physically related to, and an
enhancement to each other and, to the extent reasonably practicable, to adjacent improvements
existing or planned within the Project Area. The Developer's plans, drawings, and proposals
submitted to the Agency for approval shall describe in reasonable detail the architectural
character intended for the Project. The open spaces between buildings on the residential portion
of the Site, where they exist, shall be designed, landscaped and developed with the same degree
of excellence. The total development shall be in conformity with the Redevelopment Plan for
the Project Area.
b. Site Work
The Project shall substantially conform to the site and building plans approved pursuant
to subsection A above and with the Site Map attached to the Agreement as Attachment No. 1. It
shall be the responsibility of the Developer, the architect and the contractor to develop the
Project consistent with the aforementioned plans. Any substantial modification to the approved
site or building plans, as determined by the Director of Community Development, shall be
referred to the Planning Commission for review and approval. The Developer shall be
responsible for the construction and installation of all improvements to be constructed or
installed on the Site, including but not limited to the following:
6. AGENCY ASSISTANCE
The Agency shall providence financial assistance in addition to the land value of a
maximum amount of Seven Hundred Fifty Thousand Dollars ($750,000) as reimbursement for
the Reimbursable Costs specified in Exhibit 1 attached hereto and incorporated herein by this
reference.
• #19074 v2 ATTACHMENT NO.4
previously IRV#22674 v5 TO&UNSET-HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
APAGE 3 of 3
V')t* k *61
ATTACHMENT NO. 5
• StNSE-T HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
FREE RECORDING REQUESTED BY AND
AFTER RECORDATION RETURN TO:
Community Redevelopment Agency
of the City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Atha: 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 the Redevelopment Plan for the Pahn Springs Redevelopment Project
("Redevelopment Plan"), under the Community Redevelopment Law of the State of California,
hereby grants to °L[N HACIENDA ER-SSUNSET AFFORDABLE HOUSING
ASSOCIATES, a California Limited Partnership ("Grantee"), the real property ("Site") legally
described in Exhibit"A" attached hereto and incorporated herein by this reference.
As conditions of this conveyance, the Grantee covenants by and for itself and any
successors in interest for the benefit of the Grantee and the City of Palm Springs ("City"), as
follows:
I. Governing Documents. The Site is conveyed subject to the Redevelopment Plan
and pursuant to a Disposition and Development Agreement (the "DDA") entered into by and
between Grantor and Grantee dated 2002. Grantee covenants and agrees for
itself and its successors and assigns to use, operate and maintain the Site in accordance with the
DDA, the Redevelopment Plan, and this Deed. hi 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 terns listed in the Regulatory
Agreement attached to the DDA as Attachment No. 8.
3. Use of Site. The Grantee covenants that Grantee may only use the Site for
affordable residential as consistent with the time period and other terms, covenants and
conditions 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
IRV#22674 v5 ATTACHMENT NO.5
TO SUNSET HACIENDA DDA
PAGE or
eP* k
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. Prior to issuance of the Certificate of Completion by
the Grantor as provided in the DDA, the Grantee shall not place or suffer to be placed on the Site
any lien or encumbrance other than mortgages, deeds of trust, sales and leases back or any other
form of conveyance required for financing of the acquisition of the Site, the constriction of
improvements on the Site, and any other expenditures necessary and appropriate to develop the
Site, except as specifically provided in the DDA and attachments thereto.
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 originn 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: hi 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
Is IRV#22674 v5 ATTACHMENT NO.5
TO SUNSET HACIENDA DDA
Pnca 2 or 5
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 umder 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 nondiscrimination 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 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.
[SIGNATURE PAGE FOLLOWS]
• IRV#22674 v5 ATTACHMENT NO.5
TO SUNSET HACIENDA DDA
APnca 3 OF 5 l A
V� /
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"
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,
a public body corporate and politic
By:
Chairman
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE &WYNDER, LLP
David J. Aleshire
Agency Counsel
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"
SUNSET—HACIENDA D AA Dn�MRSSUNSET
AFFORDABLE HOUSING
ASSOCIATES,
a California limited partnership
By:
Its General Partner
• Name:
IRV 922674 v5 ATTACHMENT NO.5
TO SUNSET HACIENDA DDA
PAGL 4 OF S
• Title:
•
• IRV#22674 v5 ATTACHMENT NO,5
TO SUNSET HACIENDA DDA
PAGL��� �
cue
• # ATTACHMENT NO.5
ou 9074 v2
previously IRV#22674 v5 TO HACIENDA SUNSET AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 10F 4
%0"17
• ATTACHMENT NO. 6
SbWSETT� '�HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
AGENCY NOTE
[On Following Pages]
• IRV#22674 v5 ATTACHMENT NO.6
TO SUNSET HACIENDA DDA
PAGE 1OF 3
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• #19074v2 ATTACHMENT NO.6
previously IRV#22674 v5 TO HACIENDA SUNSET AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE lOPS
0a • k6
• AGENCY NOTE
$1,000,000.00 Palm Springs, California
FOR VALUE RECEIVED, c&UN,SE—HACIENDA PAIaMRSSUNSET
AFFORDABLE HOUSING ASSOCIATES, a California limited partnership ("Maker'),
promises to pay the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM
SPRINGS, a public body, corporate and politic ("Holder") at 3200 E. Tahquitz Canyon Way,
Palm Springs, California 92262, or at such other address as Holder may direct from time to time
in writing, the suun of One Million Dollars ($1,000,000.00) (the "Note Amount"), together with
interest thereon at the rate set forth herein. All sums payable hereunder shall be payable in
lawful money of the United States of America. This Promissory Note ("Agency Note") is made
in connection with the provision by the Holder of funds equal to the Agency Note pursuant to
that certain Disposition and Development Agreement by and among Maker and Holder, dated as
of July 3, 2002 (the "Agreement").
1. Interest Rate.
Simple interest shall accrue on the Note Amount from the date of the transfer of
the Site for the first Two Hundred Fifty Thousand Dollars ($250,000) and from disbursement of
• the remaining amount at the rate of three percent (3%) per annum, but in no event greater than
the maximum interest rate pennitted by law.
2. Re ap yment.
The principal amount of the Note Amount, plus all interest then accrued upon the
Note Amount, shall be immediately due and payable upon (i) any default of the Agreement s to
the Rental Units or the Rental Conveyance Area, including without limitation the conveyance of
property not permitted by the Agreement, and Section_, thereof, which is not cured within the
time set forth in Section —800 of the Agreement and, if not sooner paid in full, (ii) on
2057.
3. Prepayment of Agency Note Amount.
Maker may prepay to Holder the full Note Amount, together with all accrued and
unpaid interest thereon at the rate set forth in Section 1 hereof, at any time prior to the due date
of the Note Amount without penalty.
4. Application of Payments.
Each payment hereunder shall be credited first to interest then accrued and the
remainder, if any, to principal. Interest shall cease to accrue upon principal so credited.
#19074 v2 ATTACHMENT NO.6
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HOUSING ASSOCIATES DDA
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• 5. Security.
This Agency Note is secured by a deed of trust by and between Makers, as trustor
and Holder, as beneficiary(the "Deed of Trust"Attachment No. _to the Agreement).
6. Holder MU Assign.
Holder may, at its option, assign its right to receive payment under this Agency
Note without necessity of obtaining the consent of the Maker.
7. Maker Assignment Prohibited.
In no event shall Maker assign or transfer any portion of this Agency Note
without the prior express written consent of the Holder, which consent may be given or withheld
in the Holder's sole discretion.
S. Attorneys' Fees and Costs.
In the event that any action is instituted with respect to this Agency Note, the
prevailing party promises to pay such sums as a court may fix for court costs and reasonable
attorneys' fees. Holder's right to such fees shall not be limited to or by its representation by staff
counsel, and such representation shall be valued at customary and reasonable rates for private
sector legal services.
9. Non-Waiver.
Failure or delay in giving any notice required hereunder shall not constitute a
waiver of any default or late payment, nor shall it change the time for any default or payment.
10. Successors Bound.
This Agency Note shall be binding upon the parties hereto and their respective
heirs, successors and assigns.
11. Terms.
Any terms not separately defined herein shall have the same meanings as set forth
in the Agreement.
12. Legal Interest Rate.
No provision of this Agency Note or any instrument securing payment hereof or
otherwise relating to the debt evidenced hereby shall require the payment or permit the collection
of interest in excess of the maximum permitted by applicable law. If any excess of interest in
such respect is herein or in such other instrument provided for, or shall be adjudicated to be so
provided for herein or in any such instrument, the provisions of this paragraph shall govern, in
neither Maker or any endorsers of this Note, nor their respective heirs, personal representatives,
• 919074 v2 ATTACHMENT NO.6
previously IRV#22674 v5 TO HACIENDA SUNSET AFFORDABLE
HOUSING ASSOCIATES DDA
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CRO A &*0
successors or assigns shall be obligated to pay the amount of such interest to the extent it is in
excess of the amount permitted by applicable law.
13. Non-Recourse. Notwithstanding anything to the contrary herein contained, (i) the
liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits
arising from the Site and, in addition, with respect to any obligation to hold and apply insurance
proceeds, proceeds of condemnation or other monies hereunder, any such monies received by it
to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of
Maker shall be affected by or subject to being applied to the satisfaction of any liability which
Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment,
order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in
accordance with, the terms of this Note by termination or other extinguishment of Maker's
interest in the Site. Notwithstanding the foregoing, it is expressly understood and agreed that the
aforesaid limitation on liability shall in no way restrict or abridge Maker's continued personal
liability for: (A) fraud or willful or grossly negligent misrepresentation made by Maker in
connection with this Note or any of the Agency Agreements; (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; or
(D) the indemnification undertakings of Maker under the Agency Agreements.
SUNSET RAGM-NDA nAnTrWS S
• 14. General Partner Removal. The withdrawal, removal, and/or replacement of a
general partner of the Partnership shall not constitute a default under any of the Agreement or
this Agency Note, and any such actions shall not accelerate the maturity of the Note amount,
provided that Zequired substitute general partner is reasonably acceptable to Holder and is
selected within ninety 90) days of the effective date of the withdrawal, removal,_ and/or
replacement.
15. Monetary Default. If a monetary event of default occurs under the terms of the
Agreement or the Agency Note, prior to exercising any remedies thereunder, Holder shall give
Maker and any of the general or noticed limited partners of the Partnership, listed below,
simultaneous written notice of such default. Maker shall have a period of seven (7) days after
such notice is given within which to cure the default prior to exercise of remedies by Holder.
16. Non-Monetary Default. If a non-monetary event of default occurs under the
terms of any of the Agreement, prior to exercising any remedies thereunder, Holder shall give
Maker and any general or limited partners of the Partnership, listed below, simultaneous written
notice of such default. If Maker fails to take corrective action or to cure the default within the
initial thirty(30) day cure period, Holder shall give Maker and any general or limited partners of
the Partnership listed in the Agreement written notice thereof, whereupon the limited partner(s)
may remove and replace the general partner with a substitute general partner, reasonably
acceptable to Holder, who shall effect a cure within a reasonable time thereafter, as determined
by Holder, in accordance with the foregoing provisions. In no event shall Holder be precluded
#19074 v2 ATTACHMENT NO.6
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HOUSING ASSOCIATES DDA
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C#P�' •�o
from exercising remedies if its security becomes or is about to become materially Jeopardized by
any failure to cure a default or the default is not cured within the period of time specified in the
Agreement.
17 Purchase Rights The transfer of Maker's interest pursuant to terms provided in
the Agreement in Section 303 shall not constitute a default nor accelerate the maturity of this
Agency Note.
18 Loan Assumption. The Project is sold subject to low-income housing use
restrictions as contained in an existing regulatory agreement or other recorded covenant, any
requisite consent of Holder to said sale, and to the assumption without penalty of this Agency
Note obligations by the purchaser and the release of Maker from such obligations, shall not be
unreasonably withheld, provided that Holder reserves the right to (i) impose reasonable
conditions to assumption as a condition to its consent, and (ii)_approve in its sole discretion any
designee of the project sponsor's purchase rights.
HACIENDA SUNSET AFFORDABLE HOUSING
ASSOCIATES
a California limited partnership
BY:
Its General Partner
• Date Name:
Title:
"MAKER"
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,
a public body, corporate and politic
Date Chairman
ATTEST:
Agency Secretary
#19074 v2 ATTACHMENT NO.6
pre�22674 v5 TO HACIENDA SUNSET AFFORDABLE
HOUSING ASSOCIATES DDA
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L.ATr -7!
. ATTACHMENT NO. 7
SLJ"� HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
DEED OF TRUST
[On Following Pages]
•
IRV#22674 v5 ATTACHMENT NO.7
TO SUNSET HACIENDA DDA
PAGE I OF 13 Cie* A wo7l
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•
#19074 v2 ATTACHMENT NO.7
previously IRV#22674 v5 To SJ Jw�cnm RACIENDA DDASUNSET AFFOR ABLE
HOUSING ASSOCIATE DDA
PAGE I }315
ft to
i
Order No.
Escrow No.
0o an No.
HEN RECORDED MAIL TO:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
3200 E. Tahgnitz Canyon 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
between SUNSET HACIENDA ono =,n SSUNSET AFFORDABLE HOUSING ASSOCIATES, a California limited
partnership, herein called TRUSTOR,whose address is FIRST AMERICAN
TITLE INSURANCE COMPANY, herein called TRUSTEE, for the benefit of the COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, a public body, corporate and politic, herein called BENEFICIARY.
W ITNESSETH: That Truster grants to Trustee in trust, with power of sale, Trustor's estate, dated on or about the date hereof, in that
property in the City of Palm Springs,County of Riverside, State of California, described as:
0E EXHIBIT"A"ATTACHED HERETO[APPEARS FOLLOWING RIDER]
gether 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
$1,000,000.00, with interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor,
payable to order of Beneficiary, and extensions or renewals thereof; (2)the performance of each agreement of Trustor incorporated by
reference or contained herein; and (3) payment of additional sums and interest thereon which may hereafter be loaned to Trustor,or its
successors or assigns,when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the Property above described,Trustor expressly makes each and all of
the agreements,and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A,
and it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in
Orange County August 17, 1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office
of the county recorder of the county where said property is located, noted below opposite the name of such county, namely:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1288 556 Kings 958 713 Placer 1029 379 Sierra 38 187
Alpine 3 130-31 Lake 437 110 Plumas 166 1307 Siskiyou 506 762
Amador 133 438 Lassen 192 367 Riverside 3778 347 Solano 1287 621
Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2067 427
Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56
Colusa 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 655 585
Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Telrama 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 901 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693
hryo 165 672 Nevada 363 94 Shasta 800 633
Or 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964,Page 149774
#19074 v2 ATTACHMEN N0.7
previously IRV#22674 v5 To&LWSET-HACIENDA DDASUNSET AFFO ABLE
HOUSINGASSOCIATE DDA
C/PF � 7 E
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
0aximum 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:
SUNSET-HACIENDA PAAR NE SSUNSET AFFORDABLE HOUSING ASSOCIATES,
a California limited partnership
By:
[ACKNOWLEDGMENT FORMS AT END OF RIDER]
•
J074 v2 ATTACHIVIENT NO.7
previously IRV 922674 v5 To°..n��orm HACIENDA DDA3UNSET AFPORL ABLB
HOUSING ASSOCIATE'DDA
PAGE3 4a15
DO NOT RECORD
*e 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
uat and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust,Trustor agrees:
1) To keep said property in good condition and repair,not to remove or demolish any building thereon; to complete or restore promptly and in
a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor
performed and materials furnished 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 casts 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 casts,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
all 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
46 position 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
MII 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
aw 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.
#19074 v2 ATTACHMEN NO.7
Previously IRV#22674 v5 To°"*4,Fe�T HACIENDA DDASUNSET AFFO ABLE
HOU ING ASSOCIATE DDA
PAGE4 }315
C^ IT F# 74
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.
aid instrument must contain the name of the original Trustor,Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and
e 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
74 v2 ATTAOHMEtAB�L�E
previously IRV#22674 v5 To&U SE-TFI�SET HACIENDA DDASUNSET AFFO
HOUSING ASSOCIA^fupc1�
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
100
, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust. Said note
or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby requested and
directed,on payment to you of any sums owing to you under the terms of said Deed of Trust,to cancel said note or notes above mentioned,an all other
evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey, without
warranty,to the parties designated by the terms of said Deed of Trust,all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee
for cancellation before reconveyance will be made.
W
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#19074 v2 ATTACHMENT NO.7
previously IRV#22674 v5 To SUNS£'-T-I-IACIENDA DDASUNSET AFFO ABLE
HOUSING ASSOCIATE, DDA
AAAE+�1�
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 , 20022003, by SUNr HACIENDA
PADS-�T NSSUNSET AFFORDABLE HOUSING ASSOCIATES, a California limited
partnership, herein "Truster," in favor of the COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, a public body, corporate and politic, herein the
"Beneficiary,") the same parties to that certain form Deed of Trust With Assignment of Rents, of
even date hereto, to which this Rider is attached. This Rider is made a part of and is
incorporated into said Deed of Trust. This Rider shall supersede any conflicting term or
provision of the form Deed of Trust to which it is attached.
Reference is made to the following agreements and documents: (i) Agency Note by and
between Truster and Beneficiary, dated on or about the date set forth above, the repayment of
which by Truster is secured by this Deed of Trust (the "Agency Note"); (ii) Disposition and
Development Agreement by and between Truster, and Beneficiary, dated ,
20022003, providing for Truster's development of the Property; and (iii) Agreement Containing
Covenants, dated 20022003, by and between Truster and Beneficiary, providing for
the use, operation, and maintenance of the Property("Agreement Containing Covenants").
The parties hereto agree:
• 1. Property. The estate subject to this Deed of Trust is Truster's fee estate in the real
property legally described in the Deed of Trust (the "Property"). In addition, Truster grants to
beneficiary a security interest in all of Truster's rights, title, and interest in and to the following:
(a) All present and future inventory and equipment, as those terms are defined
in the California Commercial Code, and all other present and future
personal property of any kind or nature whatsoever, now or hereafter
located at, upon or about the Property or used or to be used in connection
with or relating or arising with respect to the Property and/or the use
thereof or any improvements thereto, including without limitation all
present and future furniture, furnishings, fixtures, goods, tools, machinery,
plumbing and plumbing material and supplies, concrete, lumber,
hardware, electrical wiring and electrical material and supplies, heating
and air conditioning material and supplies, roofing material and supplies,
window material and supplies, doors, paint, drywall, insulation, cabinets,
ceramic material and supplies, flooring, carpeting, appliances, fencing,
landscaping and all other materials, supplies and property of every kind
and nature.
(b) All present and future accounts, general intangibles, chattel paper, contract
rights, deposit accounts, instruments and documents as those terms are
defined in the California Commercial Code, now or hereafter relating or
arising with respect to the Property and/or the use thereof or any
#19074 v2 ATTACHMENT NO.67
pleviouslXIRV#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGN[ NT OF RENTS
TO SUNSET-HACIENDA DDASUNSET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 7 OF 1315
�, UM
improvements thereto, including without limitation: (i) all rights to the
• payment of money, including escrow proceeds arising out of the sale or
other disposition of all or any portion of the Property; (ii) all architectural,
engineering, design and other plans, specifications and drawings relating
to the development of the Property and/or any construction thereon; (iii)
all use permits, occupancy permits, construction and building permits, and
all other permits and approvals required by any governmental or quasi-
governmental authority in connection with the development, construction,
use, occupancy or operation of the Property; (iv) any and all agreements
relating to the development, construction, use, occupancy and/or operation
of the Property between 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 Properly; (xi)
all loan commitments issued to Truster in connection with any sale or
financing of the Property, (xii) all water stock, if any, relating to any
Property and all shares of stock or other evidence of ownership of any part
of or interest in any Property that is owned by Trustor in common with
others; and (xiii) all supplements, modifications and amendments to the
foregoing.
(c) All fixtures located upon or within the Property or now or hereafter
attached to, installed in, or used or intended for use in connection with the
Property, including without limitation any and all partitions, generators,
screens, awnings, boilers, furnaces, pipes, plumbing, elevators, cleaning,
call and sprinkler systems, fire extinguishing apparatus and equipment,
water tanks, heating ventilating, air conditioning and air cooling
equipment, and gas and electric machinery and equipment.
(d) All present and future accessories, additions, attachments, replacements
and substitutions of or to any or all of the foregoing.
(e) All cash and noneash 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.
• #19074 v2 ATTACHMENT NO 67
preylollSlV IRv#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
TO SUNSET-I-IACIENDA DDASUNSET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGH 8 OF I315
CRIB #4P 116
2. Obligations Secured. Truster makes this grant and assignment for the purpose of
securing the following obligations ("Secured Obligations"):
(a) Payment to Beneficiary of all indebtedness at any time owing under the
terms of the Agency Note;
(b) Payment and performance of all obligations of Trustor under this Deed of
Trust, the Disposition and Development Agreement, and the Agreement
Containing Covenants;
(c) Payment and performance of all future advances and other obligations of
Truster 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 term "obligations" is used herein in its broadest and most
comprehensive sense and shall be deemed to include, without limitation, all interest and charges,
prepayment charges, late charges and fees at any time accruing or assessed on any of the Secured
Obligations.
• 4. Incorporation. All terns of the Agency Note and the Secured Obligations are
incorporated herein by this reference. All persons who may have or acquire an interest in the
Property shall be deemed to have notice of the terms of all of the foregoing documents.
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, Truster 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
#19074 v2 ATTACHMENT NO.67
prMoudy IRy#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
TO SUNSEX-HACIENDA DDASUNSET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 9 OF 4315
L'� 4 -81
• cure, correct, or remedy such failure or delay within thirty (30) days after receipt of a written
notice specifying such failure or delay, and diligently prosecutes such cure, correction or remedy
to completion.
Beneficiary shall give written notice of default to Truster, specifying the default
complained of by Truster. Copies of any notice of default given to Trustor shall also be
delivered to any permitted lender and the limited partner of Trustor, if they have requested in
writing to receive such notice. Beneficiary may not institute proceedings against Truster 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.
hi the event of any inconsistency in the terms of this Rider and the provisions set forth in
the standard deed of trust recorded in the Recorder's Office of the County of Riverside, the terms
of this Rider shall control.
• 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 Truster or its agents in the performance
of any acts prohibited by the terms of this assignment, including, but not limited to, any amounts
received in connection with any cancellation, modification or amendment of any lease prohibited
by the terms of this assignment and any rents and profits received by Trustor after the occurrence
of a default shall be held by Trustor as trustee for Beneficiary and all such amounts shall be
accounted for to Beneficiary and shall not be commingled with other fimds of the Trustor. Any
person receiving any portion of such trust funds shall receive the same in trust for Beneficiary as
if such person had actual or constructive notice that such funds were impressed with a trust in
• accordance therewith.
#19074 v2 ATTACHMENT NO.67
RrEiDEsly IRV#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
TO SUNSE-T-RACIENDA DOASUNSET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE lO OF 4-315
C�i4 *0 11z
9. Receiver. In addition to any and all other remedies of Beneficiary set forth under
this Deed of Trust or permitted at law or in equity, if a default shall have occurred, Beneficiary,
to the extent permitted by law and without regard to the value, adequacy or occupancy of the
security for the Agency Note and other sums secured hereby, shall be entitled as a matter of right
if it so elects to the appointment of a receiver to enter upon and take possession of the Property
and to collect all rents and profits and apply the same as the court may direct, and such receiver
may be appointed by any court of competent jurisdiction by ex parte application and without
notice, notice of hearing being hereby expressly waived. The expenses, including receiver's
fees, attorneys' fees, costs and agent's compensation, incurred pursuant to the power herein
contained shall be secured by this Deed of Trust.
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 Trustor, to execute, deliver and, if appropriate, to file with the
appropriate filing officer or office such security agreements, financing statements, continuation
statements or other instruments as Beneficiary may request or require in order to impose, perfect
or continue the perfection of, the lien or security interest created hereby. Trustor and Beneficiary
agree that the filing of a financing statement in the record normally having to do with personal
property shall never be construed as in any way derogating from or impairing the lien of this
Deed of Trust and the intention of Trustor and Beneficiary that everything used in connection
with the operation or occupancy of the Property is and at all times and for all purposes and in all
proceedings, both legal and equitable, shall be regarded as real property or goods which are or
are to become fixtures, irrespective of whether (i) any such item is physically attached to the
buildings and improvements on the Property; (ii) serial munbers are used for the better
identification of certain equipment items capable of being filed by the Beneficiary; or (iii) any
such item is referred to or reflected in any such financing statement so filed at any time. Such
mention in the financing statements is declared to be for the protection of the Beneficiary in the
event any court or judge shall at any time hold that notice of Beneficiary's priority of interest
must be filed in the California Commercial Code records to be effective against a particular class
of persons, including, but not limited to, the federal government and any subdivision or entity of
the federal government. Trustor covenants and agrees to reimburse Beneficiary for any costs
incurred in filing such financing statement and any continuation statements.
Upon the occurrence of default hereunder, and after delivery of notice and the expiration
of all applicable cure periods, Beneficiary shall have the right to cause any of the Property which
is personal property and subject to the security interest of Beneficiary hereunder to be sold at any
one or more public or private sales as permitted by applicable law, and Beneficiary shall further
have all other rights and remedies, whether at law, in equity, or by statute, as are available to
secured creditors under applicable law, specifically including without limitation the right to
proceed as to both the real property and the personal property contained within the Property as
permitted by Uniform Commercial Code Section 9501(4), including conducting a unified sale
#19074 v2 ATTACHMENT N0.57
RreiOV us1V IRV#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGNMWT OF RENTS
TO SU?S HACIENDA BBASUNSET
AFFORDABLE
HOUSrNG ASSOCIATES DDA
PAGE 11 OF 4415
GAR# # 40113
thereof Any such disposition may be conducted by an employee or agent of Beneficiary or
• Trustee. Any person, including both Trustee and Beneficiary, shall be eligible to purchase any
part or all of such property at any such disposition.
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 Trustor and Beneficiary shall be given either by (i) personal service,
(ii) delivery by reputable document delivery service such as Federal Express that provides a
receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified
mail, postage prepaid, return receipt requested, addressed to:
To Beneficiary: Community Redevelopment Agency
of the City of Palm Springs
3200 E. Taliquitz Canyon Way
Palm Springs, California 92262
Attn: Executive Director
With a copy to: Burke, VAlli.m n. SereRseii, T F n
4S--3(gAleshire &W)nder, LLP
18881 Von Karman Avenue, Suite 44)30400
Irvine, California 92612
Attn: David J. Aleshire, Esq.
To Trustor: SUNS; T HACIENDA n A D��- '�pSUNSET
AFFORDABLE HOUSING ASSOCIATES,
a California limited partnership,
Attn:
With a copy to: NEF Assignment Corporation
c/o National Equity Fund, Inc.
120 S. Riverside Plaza, 15th Floor
Chicago, IL 60606-3908
Attn: General Counsel
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.
• #19074 v2 ATTACHMENT DIO.67
previously IRV#22674 v5 RIDER TO DEED OF TRUST\VITH ASSIGNMENT of RENTS
TO 8[149F9-IIACIENDA DDA,' SET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 12 OF 1315
Cg* A=so
• 12. Casualty, Condemnation, Etc. In the event of any fire or other casualty to the
Project or eminent domain proceedings resulting in condemnation of the Project or any part
thereof, Borrower shall have the right to rebuild the Project, and to use all available insurance or
condemnation proceeds therefore, provided that (a) such proceeds are sufficient to keep the Loan
in balance and rebuild the Project in a manner that provides adequate security to Holder for
repayment of the Loan or if such proceeds are insufficient then Borrower shall have funded any
deficiency, (b) Holder shall have the right to approve plans and specifications for any major
rebuilding and the right to approve (i) the constriction budget, (ii) plans and specifications for
any major rebuilding, including any change orders, and (iii) disbursements under a construction
escrow or similar arrangement, and (cc) no material default then exists imder the Loan
Documents. If the casualty or condemnation affects only part of the Project and total rebuilding
is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Loan
in a manner that provides adequate security to Holder for repayment of the remaining balance of
the Loan.
[SIGNATURES To FOLLOW]
• #19074 v2 ATTACHMENT NO.67
previously 1RV#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
T0,%N&E- HACIENDA DDASUN ET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 13 OF 4315
�� �= as
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:
StWS'ET HACIENDA n AA D� SUNSET
AFFORDABLE HOUSING ASSOCIATES,
a California limited partnership
By:
•
• #19074 v2 ATTACHMENT NO.67
Rieviously IRV#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
TO SUNSET-RACIENDA DDA5UNSET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 14 OF 1315
1CM # =8G
EXHIBIT "A"
LEGAL DESCRIPTION
Real property located in the City of Pahn Springs, County of Riverside, State of CalifDinia,
legally described as:
[TO BE INSERTED]
• #19074 v2 ATTACHMCNT NO.67
previously RV#22674 v5 RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
TO SHNSFiFFWCIENDA 9Dh US NSET
AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 15 OF 1315
Ore* ..
• ATTACHMENT NO. -78
°T'SErHACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
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)
CERTIFICATE OF COMPLETION
WHEREAS, by a Disposition and Development Agreement ("Agreement") dated
, 20W2003 by and between the COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS ("Agency") and eLWSE- -HACIENDA n A DRT NERSSUNSET
AFFORDABLE HOUSING ASSOCIATES, a California limited partnership ("Developer"),
• Developer has agreed to develop a residential development ("Project") on the Site (as such term
is defined in the Agreement); and
WHEREAS, as referenced in the Agreement, Agency shall furnish Developer with a
Certificate of Completion upon completion of construction and development, which release shall
be in such form as to permit it to be recorded in the Official Records of the County Clerk of the
County of Riverside, California; and
WHEREAS, Developer has requested that Agency furnish Developer with the Certificate
of Completion for the Site more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference (the "Site"); and
WHEREAS, the Agreement provided for certain covenants to run with the land, which
covenants were incorporated in the Regulatory Agreement, as those terns are defined in the
Agreement; and
WHEREAS, such Certificate of Completion shall constitute a conclusive determination
by Agency of the satisfactory completion by Developer of the construction and development
required by the Agreement and of Developer's full compliance with the terms of the Agreement
with respect to such construction and development, but not of the Regulatory Agreement, the
provisions of which shall continue to run with the land pursuant to their terms; and
• #19074 v2 ATTACHMENT NO.48
previously IRV#22674 v5 TO SUNS&T-HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
PAGE 1 OF 3
4i4',** A.-ON
. WHEREAS, Agency has conclusively determined that the construction and development
on the Site required by the Agreement has been satisfactorily completed by Developer in full
compliance with the terms of the Agreement.
NOW, THEREFORE,
1. The improvements required to be constructed have been satisfactorily completed
in accordance with the provisions of said Agreement.
2. This Certificate shall constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to the obligations of the
Developer, and its successors and assigns, to constrict the improvements and the dates for the
beginning and completion thereof.
3. This Certificate shall not constitute evidence of Developer's compliance with the
Regulatory Agreement, the provisions of which shall continue to run with the land.
4. This Certificate shall not constitute evidence of compliance with or satisfaction of
any obligation of the Developer to any holder of a mortgage or any insurer of a mortgage,
securing money loaned to finance the improvements or any part thereof.
5. This Certificate is not a Notice of Completion as referred to in California Civil
Code Section 3093.
6. Except as stated herein, nothing contained in this instrument shall modify in any
way any other provisions of the Agreement or any other provisions of the documents
incorporated therein.
IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion this
day of
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, a
public body, corporate and politic
By
Executive Director
• #19074 v2 ATTACHMENT NO.38
previously iRV#22674 v5 TO S NSE-T HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
PAGE 2 OF 3
• 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
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
#19074 v2 ATTACHMENT NO.48
previously IRV#22674 v5 TO SUNSET-HACIENDA SUNSET
AFFORDABLE HOUSING ASSdC1ATES
DDA
PAGE 3 OF 3
00 h - %
EXHIBIT "A"
• DESCRIPTION OF SITE
That certain real property located in the City of Pahn Springs, County of Riverside, State of
California, more particularly described as follows:
•
919074 Q EXHIBIT"A"TO
• Previously IRV#22674 v5 ATTACHMENT NO.79
TO SH#SLT—FIACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES
DDA
PAGE 1 OF 1
'ORk '+41
. ATTACHMENT NO. 99
"TT"o W& Ti-HACIENDA SUNSET AFFORDABLE HOUSING ASSOCIATES DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
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)
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS ("Agreement") is made and entered into this day of ,
• , by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS, a public body, corporate and politic ("Agency"), the CITY OF PALM
SPRINGS, a municipal corporation and charter city ("City"), and &U T�ErHACIENDA
DADSUNSET AFFORDABLE HOUSING ASSOCIATES, a California limited
partnership ("Owner").
RECITALS :
A. Pursuant to a Disposition and Development Agreement by and between Agency
and Owner dated , 2,0022003 (the "DDA"), Agency has provided to
Owner real property and financial assistance in the amount of approximately One Million
Dollars ($1,000,000.00) (collectively, the "Agency Assistance"), all for the purpose of assisting
Owner in the acquisition of real property and the development of a residential apartment
complex thereon for rental to very low and low income households, on that certain real property
located in the City of Palm Springs, County of Riverside, State of California, more particularly
described in Exhibit"A" attached hereto and incorporated herein by reference(the "Site").
B. Pursuant to the DDA, Owner has agreed to develop, construct, and maintain a
rental apartment housing project consisting of sixty-six (66) total residential units (including one
(1) resident manager's unit) (hereinafter referred to collectively as the "Project") on the Site.
The Project is also referred to in the DDA as the "Project," and is further described in the Scope
of Development attached to the DDA.
• #19074 v2 ATTACI{MENT 89
PreV10115IV IRV#22674 VS TO REGULATORY AGR
TO SUNSS-HACIENDA DoASUNSET AFFORDARLP,
HOUSING ASSOCIATES DDA
PAGE I OF N26
4X0 4 40 2
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
rental apartment housing project available for rental by very low and low income persons for the
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 herewith in Office of the
County Recorder for the County of Riverside be subject to this Regulatory Agreement, and that
the terms hereof shall be binding on the Owner and its successors in interest in the Site for so
long as the Regulatory Agreement shall remain in effect.
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 improvement and sale of the Site, and
are established expressly and exclusively for the use and benefit of the Agency, the residents of
the City of Palm Springs, and every person renting a dwelling unit on the Site.
A. DEFINITIONS.
1. Affordable Low Income Rent. As used in this Agreement, the term
"Affordable Low Income Rent" shall mean annual rentals whose amount does not exceed
the maximum percentage of income that can be devoted to rent as set forth by Health &
Safety Code Section 50053, or its successor, which is currently thirty percent (30%) of
sixty percent (60%) of the Riverside Cormty Median Income adjusted for the family size
appropriate for the Unit.
2. Affordable Rent. As used in this Agreement, the term "Affordable Rent"
shall refer to collectively Affordable Very Low Income Rent and Affordable Low Income
Rent.
3. Affordable Very Low Income Rent. As used in this Agreement, the term
"Affordable Very Low Income Rent" shall mean annual rentals whose amount does not
exceed the maximum percentage of income that can be devoted to rent as set forth by
Health & Safety Code Section 50053, or its successor, which is currently thirty percent
• #19074 v2 AT 89
previously,IRV#22674 v5 TO EEGULATOEY AGx
TO SdN3&FHACIENDA DDASUNSET AFFORDAELE
HOUSMO ASSOCIATES DDA
PAGE 2 OF q26
Cie* 1443
• (30%) of fifty percent (50%) of the Riverside County Median Income adjusted for the
family size appropriate for the Unit.
4. Eligible Tenant. As used in this Agreement, the term "Eligible Tenant"
shall refer to a Very Low Income Tenant or a Low Income Tenant.
5. Riverside Countv 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 Commrmity Development
pursuant to Health and Safety Code Section 50093, or its successor.
6. Low Income Tenant. As used in this Agreement, the term "Low Income
Tenant" shall mean those tenants whose household income does not exceed eighty
percent (80%) of the Riverside County Median Income.
7. Project Manager. As used in this Agreement, the term "Project Manager"
shall refer to that entity, to be designated by Owner and approved by Agency, who shall
be responsible for operating and maintaining the Project in accordance with the terms of
this Agreement. Prior to Agency's approval, Owner shall act as Project Manager.
S. Resident Manager. As used in this Agreement, the tern "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.
9. Unit. As used in this Agreement, the term "Unit" shall refer to any of the
sixty(60) residential units reserved for Eligible Tenants or the Resident Manager.
10. Very Low Income Tenant. As used in this Agreement, the tern "Very
Low Income Tenant" shall mean those tenants whose income does not exceed fifty
percent (50%) of the Riverside County Median Income.
B. RESIDENTIAL RENTAL PROPERTY. The Owner hereby agrees that the
Project is to be owned, managed, and operated as a project for very low and low income
residential rental purposes for a tern equal to fifty-five (55) years, commencing upon the date of
the recordation of the Certificate of Completion for 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 Site is being acquired and the Project constructed for the
purpose of providing very low and low income rental housing and the Owner shall own,
manage, and operate the Project as a project to provide very low and low income rental
housing comprised of several interrelated buildings or structures, together with any
functionally related and subordinate facilities.
2. Residential Use. None of the Units in the Project will at any time be
utilized on a transient basis or used as a hotel, motel, dormitory, fraternity house, sorority
• #19074 v2 ATTACHMENT 89
previously IRV#22674 v5 TO REGULATORY AGA
TO SUN&B' HACIENDA DDASUNSET AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 3 OF W26
0040 4 "0f�
house, rooming house, nursing home, hospital, sanitarium, or trailer court or park 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
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 Units 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 Units in the Project, except to the extent
that the Units are required to be leased or rented to Eligible Tenants and except as
provided in Section C.6 below.
5. Resident Manager. One, and only one, Unit in the Project may be
occupied by a Resident Manager.
6. 1 Liability of Owner. Owner and Resident Manager shall not incur any
liability under this Agreement as a result of fraud or intentional misrepresentation by a
tenant.
C. OCCUPANCY OF PROJECT BY ELIGIBLE TENANTS. Owner hereby
represents, warrants, and covenants as follows:
1. Occupancy. Except as expressly provided herein, throughout the term of
this Agreement the occupancy of the 32 Restricted Units in the Project (excluding the
Resident Manager Unit) shall be restricted to Eligible Tenants and qualified members of
the Eligible Tenant's household.
2. Expiration of Occupancy and Rent Restrictions. The Units shall be
subject to the restrictions contained in this Section C for the Term of this Agreement. All
tenants residing in the Units 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 during the final
two years. After the expiration of the Term, the rents payable on the Units may be raised
to market rates.
3. Rental Rates. Owner hereby agrees to rent those Units occupied by Low
Income Tenants at no greater than Affordable Low Income Rent, and to rent those Units
occupied by Very Low Income Tenants at no greater than Affordable Very Low Income
Rent.
4. Occupancy y Eligible Tenant. A Unit occupied by an Eligible Tenant
.shall be treated as occupied by an Eligible Tenant until a recertification of such tenant's
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• 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 Unit, Owner shall obtain and maintain on file an Income
Computation and Certification form (which form shall be approved 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 Agency; or (v) such other information as may
be requested by the Agency. A copy of each such Income Computation and Certification
shall be filed with the Agency prior to the occupancy of a Unit by an Eligible Tenant
whenever possible, but in no event more than thirty (30) days after initial occupancy by
said tenant.
6. Rental Priority. During the term of this Agreement, Owner shall use its
best efforts to lease vacant Units reserved for Eligible Tenants 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 Palm Springs; (ii) residents of the City of Palm Springs; and (iii) other
persons meeting the eligibility requirements of this Agreement. Owner shall and Agency
may maintain a list (the "Housing List") of persons who have notified Owner and/or
Agency of their desire to rent a Unit in the Project and who have incomes which would
qualify them as an Eligible Tenant, and Owner shall offer to rent Units on the above-
referenced priority basis. Should multiple tenants be equally eligible and qualified to rent
a Unit, Owner shall rent available Units to Eligible Tenants on a first-come, first-served
basis.
7. Renting Vacant Units. When a Unit becomes available as a result of a
tenant vacation, Owner shall rent the Unit to an Eligible Tenant in accordance with the
order of priority set forth in Section C.6.
8. Income Recertification. Immediately prior to the first anniversary date of
the occupancy of a Unit by an Eligible Tenant 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 Unit. 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
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recertification do not qualify as an Eligible Tenant, then the occupants' lease shall be
terminated in accordance with Section C.9. Owner shall provide the Agency with a. copy
of each such recertification with the next submission of Certificate of Continuing
Program Compliance pursuant to Section C.10.
9. Terminating Ineligible Tenant. Upon recertification, if an Eligible Tenant
has become ineligible, Owner shall allow such ineligible tenant to occupy the Unit for a
period of twenty-four (24) months ("Grace Period"). Dining the Grace Period the rent
shall not increase except to the extent of increases in the amount of the Affordable Low
Income Rent. If the ineligible tenant becomes an Eligible Tenant upon recertification
during the Grace Period, Owner shall continue to rent the Unit to the Eligible Tenant at
the Affordable Rent of the income category that the Eligible Tenant falls within
following recertification. If after the Grace Period the tenant remains ineligible, the
ineligible tenant's lease shall not be renewed and such tenant shall be required to vacate
the Unit.
10. Certificate of Continuing Program Compliance. Upon the issuance of the
Certificate of Completion and annually by January 31 of each year, or at any time upon
the written request of Agency, 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 Units 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 unremedied default has
occurred under this Agreement, (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.
It. Maintenance of Records. Owner shall maintain complete and accurate
records pertaining to the Units, 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 Units.
12. Reliance on Tenant Representations. Each lease 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 Unit, and that
any material misstatement in such certification (whether or not intentional) will be cause
for immediate termination of such lease.
13. 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.
14. Agency Remedy For Excessive Rent Charge.
a. It shall constitute a default for Owner to charge or accept for a Unit
rent amounts in excess of the amount provided for in Section C.3 of this
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• Agreement. In the event that Owner charges or receives such higher rental
amounts, 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 Unit to a tenant
who is not an Eligible Tenant for the particular Unit pursuant to the rental rate
requirements set forth in Section C.3 of this Agreement. In the event Owner rents
a Unit to an ineligible tenant, 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 Unit, plus (ii) any relocation expenses incurred
by Agency or City as a result of Owner having rented to such ineligible person.
C. It shall constitute a default for Owner to rent any of the Units in
violation of the leasing preference requirements of Sections C.6 of this
Agreement. In the event Owner rents a Unit 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 Unit 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.
• THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH IN
SUBPARAGRAPHS (a) THROUGH (c) OF THIS SECTION C.14 (THE "DAMAGE
AMOUNTS") CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL
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 THIS 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.14 SHALL BE THE SOLE MONETARY
DAMAGES REMEDY FOR THE DEFAULTS SET FORTH IN THIS SECTION C.14, 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 EXPLAIlVED
THE CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO
THE TIME EACH EXECUTED THIS AGREEMENT.
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OWNER'S INITIALS: AGENCY'S INITIALS:
• 15. Section 8 Tenants. Owner shall accept as tenants on the same basis as all
other Eligible Tenants, persons who are recipients of federal certificates for rent subsidies
pursuant to the existing program under Section 8 of the United States Housing Act of
1937, or its successor. Owner shall not apply selection criteria to Section 8 certificate
holders that are more burdensome than criteria applied to all other Eligible Tenants.
D. MAINTENANCE.
1. Maintenance Obli ation. Owner, for itself and its successors and assigns,
hereby covenants and agrees to maintain and repair or cause to be maintained and
repaired the Site and all related on-site improvements and landscaping thereon, including,
without limitation, buildings, parking areas, lighting, signs and walls in a first class
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.
hi addition, Owner shall be required to maintain the Property 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 Site.
2. Parking and Driveways. The driveways and traffic aisles on the Site shall
be kept 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
Site, including delivery vehicles, vehicles of employees and vehicles of persons with
business on the Site 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 Entrv. In the event Owner fails to maintain the Site 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 without further notice to Owner, declare the unperformed
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• maintenance to constitute a public nuisance. 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 Regulatory Agreement. Owner shall pay such
costs as are reasonably incurred by Agency or City for such maintenance, including
attorneys' fees and costs.
5. Lien. If such costs are not reimbursed within thirty (30) days after
Owner's 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 an 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 such property. 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. 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
permitted by law.
• 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
estate in and to any 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.
F
1. Approval of Project Manager; Designation of Resident Manag . Subject
to the terns and conditions contained hereinbelow, 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 acceptable to Agency.
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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 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. Owner shall promptly terminate 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 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 Resident Manager shall be designated as
necessary by Owner or Project Manager, with written notice to Agency of the Resident
Manager's name, address and telephone number.
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 Manager. 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 housing complex of the highest 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;
b. Knowingly allowing the tenants to exceed the prescribed
occupancy levels without taking immediate steps to stop such overcrowding;
C. Repeatedly failing to timely maintain the Project and the Site in the
manner required by this Agreement;
d. Failing to timely submit the reports as required by this Agreement
or failing to submit materially complete reports;
C. Fraud in connection with any document or representation relating
to this Agreement or embezzlement of Project monies; and
f. Failing to fully cooperate with the City's Police Department in
maintaining a crime-free environment on the Site.
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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.
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 Manager for leasing Units within the Site.
H. INSURANCE.
1. Duty to Procure Insurance. Owner covenants and agrees for itself, and its
assigns and successors-in-interest in the Site that from completion of the Project as
evidenced by City's issuance of a certificate of occupancy, 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 fall 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 form fire
insurance coverage in an amount equal to full 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. Agency
shall be a loss payee under such policy or policies and such insurance shall
contain a replacement cost endorsement.
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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 Certificate of
Completion 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 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.
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,
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and/or pay for the insurance required herein, may (but without any obligation to do so) at
• any time or from time to time, after thirty(30) days written notice to Owner,procure such
insurance and pay the premiums therefor, in which event Owner shall immediately repay
Agency all sums so paid by Agency together with interest thereon at the maximum legal
rate.
I. OBLIGATION TO REPAIR.
1. Obligation to Repair and Restore Damage 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, whether or not the insurance proceeds are sufficient to
cover the actual cost of repair, replacement, or restoration, and Owner shall complete the
same as soon as possible thereafter 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 or lenders 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 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.1.
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.
3. Damage or Destruction Due to Cause Not Required to be Covered by
hsurance. 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
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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 fifty percent
(50%) 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.1 above and
continue operation of the apartment complex during the period of repair(if practicable) 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.
1. 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.
2. Agency pproval 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
• #19074v2 ATTACI-]MENT99
previously IRV#22674 v5 TO REGULATORY AGR
TO 9F3NSS CIENDA DDASUNSET AFFORDABLE
HOOSMG ASSOCIATES DDA
PAGE 14 OF 1726
• approval of any Transfer by Owner of its interest in the Site, Agency shall consider
factors such as (i) whether the completion and operation of the Project is jeopardized; (ii)
the financial credit, strength, and capability of the proposed transferee to perform
Owner'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
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, 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 amormt 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) After recordation of the Certificate of Completion, 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.
(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.
. 419074 v2 ATTACHMENT 99
previously RV#22674 v5 TO REGULATORY AGR
TO SUNSET-HACIENDA DDASIINSET AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 15 or N26
(f) A transfer of twenty-five percent (25%) 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.
(h) A sale or transfer to a Qualified Tax Credit Investor.
G) A sale or transfer to the Developer's general partner, the Coachella
Valley Housing Coalition.
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.
4. Impose, through Agency's Executive Director, an administrative fine for
each day the violation continues. The amount of the fine shall be Twenty-Five dollars
($25.00) per day, unless the violation is deemed a major violation, in which case the fine
shall be Seventy-Five dollars ($75.00) per day. A "major" violation shall be one which
affects adjacent property or the health and safety of persons. Owner may appeal the
assessment of any fine to the City Council who may reverse, modify or uphold the
decision of the Executive Director. In making this decision, the City Council shall
determine whether the violation exists and whether the amount of the fine is appropriate
under the circumstances.
• #19074 v2 ATTACHMENT 89
previously IRV#22674 v5 TO REGULATORY AGR
TO SUNS&' CIENDA DDASUNSET AFFORDABLE
HOLISM ASSOCIATES DOA
PAGE 16 OF q26
Cif h -1U7
• 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,
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,
#19074 v2 ATTACHMENT 89
previously W#22674 v5 TO REGULATORY AGR
TO SUN96T-HACIENDA BbASUNSFT AELE
NOOSING ASSOCIATEOCIATP.S DDA
PAGE 17 OF 2726
CR .
# io /Mr
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.
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 reasonable 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 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
Copy to: leshire &Wynder, LLP
1830118881 Von Karman Avenue, Suite 4-050400
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
Owner: oT q;S 'r HACIENDA n A°��SUNSET
AFFORDABLE HOUSING
ASSOCIATES
Attrr:
Copy to:
c/o Coachella Valley Housing Coalition
#19074 v2 ATTACHMENT 89
previously IRV 422674 v5 TO MGU TORY AGa
TO SUNSET-HACIENDA DDASUNS SSOM RDA
HOUSING ASSOCIATES DDADA
PAGE 18 OF 2q26
00 #4 10109
• 45-701 Monroe Street, Suite G, Plaza I
Indio, CA 92201
Attn: General Partner
Copy to: NEF Assignment Corporation
c/o National Equity Fund, Inc.
120 S. Riverside Plaza, 15th Floor
Chicago, IL 60606-3908
Attn: General Counsel
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.
• 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. Inte arg_tion. 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 Pahn
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.
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.
#19074 v2 ATTACHMENT 99
p1CVI0Osly IRV#22674 v5 TO REGULATORY AGR
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HOUSMG ASSOCIATES DDA
PACE 19 OF 0Q6 I
[END-- SIGNATURES ON NEXT PAGE]
•
• #19074 v2 ATTACHMENT 89
previously IRV#22674 v5 T➢xec➢LAr➢xv acx
TO SUN5&'FHACIHND 16➢ASUNSETOCIATES DDA
' HOUSING A950CNTdS➢OA
PAGE 20 Oa P26 eR#+ #r 01
• IN WITNESS WHEREOF, the Agency and Owner have executed this Regulatory
Agreement and Declaration of Covenants and Restrictions by duly authorized representatives on
the date first written hereinabove.
"AGENCY"
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
a public body, corporate and politic
By:
Chair
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
• David J. Aleshire
Agency Counsel
"OWNER"
SUNSET HACIENDA APARTMENTS,
a California limited partnership
By:
Its General Partner
Name:
Title:
[END OF SIGNATURES]
#19074 v2 ATTACHMENT 89
1)reViGUS1Y IRV#22674 v5 TO REGULATORY AGR
TO SUMS RACIENDA DDASUNSET AFFORDAMB
HOUSMG ASSOUATES DDA
PAGB 21 OF 2726
• 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 signatmes(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]
#19074 v2 ATTACI-IIv1ENT 89
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TO SNNSBT-HACIENDA DDASHNSET AF ORDABLR
HOUSMG ASSOCIATES DDA
PAGE 22 OF 1q266
CA* 1+ 00II3
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]
• #19074 v2 ATTACHMENT 89
U[eV1oU51V IRV#22674 v5 TO REGULATORY AGR
TO SUNSET-HACIENDA DDASUNSET AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 23 of 2226
Chho h - do
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:
• 119074 v2 EXHIBT W
DTeVi0u51V IRV#22674 v5 ATTACHMENENT 89
TO REGULATORY AGE
TO S6RJS&T-UACIHNDA DBAMUNSET ARPo
HOUSMG ASSOCIATES HS DDA DDA
PAGE 24 OP?726
EXHIBIT "B"
•
DESCRIPTION OF PUBLIC PROPERTY
[INSERT DESCRIPTION]
#19074 v2 EXHIBIT`B"(Paae I of 1)
➢I'eyiouslV IRV#22674 v5 TO REGULATORY AGR
TO SUNSE�FMCIENDA MASON=ARFORDAELE
HOUSING ASSOCIATES D➢A
PACE 25 OF 2:26
C^'� 116
EXHIBIT "C"
• Period Covered
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS
The undersigned, S TÐACIENDA P A D�ERSSUNSET AFFORDABLE
HOUSING ASSOCIATES, a California limited partnership (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 Units 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 Unit:
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 Units 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.
• #19074 v2 EXHIBIT"C"(Page I of 2)
mevlouslyIRV#22674 v5 TO REGULATORY AGR
TO SUNSET-HACIENDA BBASUNSET AFFORDABLE
HOUSING ASSOCIATES DDA
PAGE 26 OF N26
cow jT Aw, 117
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).
SUNSET HACIENDA u AA D4.ER-SSUNSET
AFFORDABLE HOUSING ASSOCIATES,
a California limited partnership
By:
Its General Partner
By:
Its
By:
Its
[END OF SIGNATURES]
#19074 v2 EXHIBIT"C"(Page I of 2)
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HOUSMCING A ASSSOCIATES DDA
PAGE 27 OF N26
AhA jf »e
TABLE OF CONTENTS
Page No.
I. (§100) PURPOSE OF THE AGREEMENT......................................:.........I
A. (§101)Purpose of the Agreement................................................................I
U. (§200) DEFINITIONS.................................................................................I
A. (§201) Affordable Rent................................................................................I
B. (§202) Agency Financial Assistance. ..........................................................2
C. (§203) Agency Note.....................................................................................2
D. (§204) Agreement........................................................................................2
E. (§205) Certificate of Completion.................................................................2
F. (§206) City...................................................................................................2
G. (§207) Closing. ............................................................................................2
H. (§208)Days..................................................................................................2
I. (§209) Deed. ................................................................................................2
J. (§210) Deed of Trust....................................................................................3
K. (§211) Effective Date...................................................................................3
• L. (§212) Enforced Delay.................................................................................3
M. (§213) Escrow..............................................................................................3
N. (§214) Escrow Agent...................................................................................3
O. (§215) Low Income Household. ..................................................................3
P. (§216) Manager's Unit.................................................................................3
Q. (§217) Project...............................................................................................3
R. (§218) Purchase Price. .................................................................................4
S. (§219) Qualified Manager............................................................................4
T. (§220) Qualified Tax Credit Investor. .........................................................4
U. (§221) Qualified Tenant...............................................................................4
V. (§222)Redevelopment Plan.........................................................................5
W. (§223)Redevelopment Project Area............................................................5
X. (§224) Regulatory Agreement. ....................................................................5
Y. (§225)Reimbursable Costs..........................................................................5
Z. (§226) Restricted Unit..................................................................................5
• (§ ) .....................................5
AA. 227 Schedule of Performance. ...........................
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• BB. (§228) Site and Site Map. ............................................................................6
CC. (§229) Title Company..................................................................................6
DD. Q230) Very Low Income Household. .........................................................6
III. (§300) PARTIES TO THE AGREEMENT.................................................6
A. (§301) Agency. ............................................................................................6
B. (§302)Developer. ........................................................................................6
1. Identification....................................................................................6
2. Successors and Assigns....................................................................6
3. Qualifications...................................................................................7
C. (§303)Restrictions on Transfer. ..................................................................7
1. Transfer Defined..............................................................................7
2. Restrictions Prior to Completion. ....................................................7
3. Exceptions........................................................................................9
4. Restrictions After Completion.........................................................8
IV. (§400) DISPOSITION OF THE SITE.........................................................9
• A. (§401) Housing Program Funds...................................................................9
B. (§402) Acquisition of the Site......................................................................9
C. (§403) Disposition of the Site......................................................................9
1. Pumose of Sale. .............................................................................10
2. Agency Financial Assistance. ........................................................to
3. Application for Disbursement........................................................10
4. Approval and Payment...................................................................I I
D. (§404) Escrow............................................................................................I I
E. (§405) Conditions to Close of Escrow.......................................................I I
1. Developer's Conditions to Closing................................................11
2. Agency's Conditions to Closing....................................................12
3. Both Parties' Conditions to Closing. .............................................13
F. (§406) Conveyance of the Site...................................................................13
1. Time for Conveyance.....................................................................13
2. Escrow Agent to Advise of Costs..................................................13
3. Deposits By Agency Prior to Closing............................................13
• 4. Deposits By Developer Prior to Closing........................................13
#19074 v2 _ll �� h r I xo
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5. Recordation and Disbursement of Funds.......................................14
iG. (§407) Title Matters...................................................................................14
1. Condition of Title...........................................................................14
2. Exclusion of Oil, Gas and Hydrocarbons. ......................... ..........14
3. Agency Not to Encumber Site. ......................................................14
4. Approval of Title Exceptions.........................................................14
5. Title Policy.....................................................................................15
H. (§408) Evidence of Financial Capability. ..................................................15
I. (§409) Condition of Site. ...........................................................................16
1. Disclaimer of Warranties...............................................................16
2. Right to Enter Site, Indemnification.................................... .........16
3. Hazardous Materials. .....................................................................16
J. (§410) Costs of Escrow..............................................................................20
1. Allocation of Costs. .......................................................................20
2. Proration and Adjustments.............................................................20
3. Extraordinary Services of Escrow Agent.......................................21
. 4. Escrow Agent's Right to Retain Documents.................................21
K. (§411) Termination of Escrow...................................................................21
1. Termination....................................................................................21
2. Opportunity to Cure.. .. .. ............ .. ... ............ ... . .............. ........21
3. Delivery of Plans, Drawings, and Reports.....................................22
L. (§412) Responsibility of Escrow Agent.....................................................22
1. Deposit of Flmds............................................................................22
2. Notices. ..........................................................................................22
3. Sufficiency of Documents..............................................................22
4. Exculpation of Escrow Agent........................................................22
5. Responsibilities in the Event of Controversies..............................22
V. (§500) DEVELOPMENT OF THE SITE..................................................23
A. (§501) Scope of Development. ..................................................................23
B. (§502) Development Plans; Final Building Plans......................................23
1. Proposed Development's Consistency With Plan and Codes........23
2. Development Plan..........................................................................23
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3. Developer Best Efforts to Obtain Approvals... . . .... . ... ......... . 23
• 4. Agency Assistance......................... . . . . .. .. . .24
5. Disapproval....................................................................................24
6. CEOA.............................................................................................24
C. (§503) Developer Responsibilities During Construction...........................24
D. (§504)Reserved.........................................................................................24
E. (§505) Schedule of Performance; Progress Reports. .................................25
F. (§506) Indemnification During Construction. ...........................................25
G. (§507) Insurance. .......................................................................................25
1. Commercial General Liability Insurance.......................................25
2. Worker's Compensation Insurance. ................25
3. Automobile Insurance.................... .................26
4. Builder's Risk Insurance................................................................26
H. (§508) City and Other Governmental Agency Permits..............................26
I. (§509) Rights of Access.............................................................................27
J. (§510) Applicable Laws.............................................................................27
• K. (§511)Nondiscrimination During Construction........................................27
L. (§512) Taxes, Assessments, Encumbrances and Liens..............................27
M. (§513) Rights of Holders of Approved Security Interests in Site..............28
1. Definitions......................................................................................28
2. No Encumbrances Except Mortgages to Finance The Project.......28
3. Developer's Breach Not to Defeat Mortgage Lien........................28
4. Holder Not Obligated to Construct or Complete Improvements...28
5. Notice of Default to Mortgages, Deed of Trust or other Security
Interest Holders..............................................................................28
6. Right to Cure..................................................................................29
7. Agency's Rights upon Failure of Holder to Complete
Improvements. ...............................................................................29
8. Right of Agency to Cure Mortgage, Deed of Trust or Other
Security Interest Default. ...............................................................30
9. Right of Agency to Satisfy Other Liens on the Site After
Conveyanceof Title.......................................................................31
N. (§514) Certificate of Completion...............................................................31
• 0. (§515) Estoppels. .......................................................................................32
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VI. (§600)USES AND MAINTENANCE OF THE SITE..............................32
• A. (§601)Uses of the Site...............................................................................32
B. (§602) Affordable Housing........................................................................33
1. Construction of Affordable Housing. ............................................33
2. Restricted Unit Requirements........................................................33
3. Leasing of Residences by Developer.............................................33
C. (§603) Obligation to Refrain from Discrimination....................................34
D. (§604) Form of Nondiscrimination and Nonsegregation Clauses. ............34
1. Deeds..............................................................................................34
2. Leases.............................................................................................34
3. Contracts. .......................................................................................35
E. (§605)Maintenance of Improvements.......................................................35
F. (§606) Effect of Covenants........................................................................35
V11 (§700) SPECIAL PROVISIONS...............................................................36
A. [Reserved]..................................................................................................36
• VIII. (§800) DEFAULTS,REMEDIES AND TERMINATION.......................36
A. (§801) Defaults, Right to Cure and Waivers. ............................................36
B. (§802) Legal Actions. ................................................................................36
1. Institution of Legal Actions. ..........................................................36
2. Applicable Law and Forum. .........................................................36
3. Acceptance of Service of Process... .....:..........36
C. (§803) Rights and Remedies are Cumulative. ...........................................37
D. (§804) Specific Performance. ....................................................................37
E. (§805)Right of Revel.-ter............................................................................37
F. (§806) Attorney's Fees. .............................................................................39
IX. (§900) GENERAL PROVISIONS.............................................................39
A. (§901)Notices, Demands and Communications Between the Parties.......39
B. (§902) Nonliability of City and Agency Officials and Employees;
Conflicts of Interest; Commissions............................................................40
1. Personal Liability...........................................................................40
2. Financial Interest............................................................................40
3. Commissions..................................................................................40
#19074 v2 _V_
previously IRV#22674 v5 o 0 00 ��
C. (§903) Enforced Delay: Extension of Times of Performance. ..................41
• D. (§904) Books and Records.........................................................................41
1. Developer to Ke9P Records. ..........................................................41
2. Right to Inspect..............................................................................41
3. Ownership of Documents. .............................................................41
E. (§905) Assurances to Act in Good Faith....................................................42
F. (§906) Interpretation. .................................................................................42
G. (§907) Entire Agreement, Waivers and Amendments...............................42
H. (§908) Severability.....................................................................................42
I. (§909) Effect of Redevelopment Plan Amendment...................................43
I. (§910) Time for Acceptance of Agreement by Agency.............................43
K. (§911) Execution........................................................................................43
ATTACHMENTS 1 THROUGH 99
•
•
#19074 v2 ^Vl-
previously IRV#22674 v5 ��
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA APPROVING
A RESTATED AND AMENDED DISPOSITION AND
DEVELOPMENT AGREEMENT WITH COACHELLAVALLEY
HOUSING COALITION AND HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP TO EFFECTUATE THE
DEVELOPMENT OF A LOW-INCOME APARTMENT
COMPLEX ON THE WEST SIDE OF SUNRISE WAY, NORTH
OF SAN RAFAEL ROAD AND SOUTH OF THE COYOTE
RUN APARTMENTS
WHEREAS, the Community Redevelopment Agency of the City of Palm Springs (the
"Agency")has established an affordable housing setaside fund in accordance with Section
33000 et. seq. of the California Health and Safety Code; and
WHEREAS, the funds are earmarked for the acquisition, construction, or rehabilitation of
affordable housing to benefit the community; and
WHEREAS, Sunset Hacienda Apartments, proposed for low-income families, was
approved on July 3, 2002 by the Palm Springs City Council; and
WHEREAS, the property developers, Coachella Valley Housing Coalition and Hacienda
Sunset Affordable Housing Associates, a California Limited Partnership, sought Agency
financial assistance to cover a portion of the development cost, and received Agency
approval of a Disposition and Development Agreement at a duly noticed public hearing
held July 3, 2002; and
WHEREAS, the property developers, Coachella Valley Housing Coalition and Hacienda
Sunset Affordable Housing Associates, a California Limited Partnership, submitted a tax
credit application to the California Tax Credit Allocation Committee for the July 17, 2002
application round but were unsuccessful; and
WHEREAS, Section 33430 of the Community Redevelopment Law allows that an agency
may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99 years,
exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of trust, or
otherwise, or otherwise dispose of any real or personal property or any interest in
property;" and
WHEREAS, the property developers have requested a number of minor modifications to
the DDA, including a partnership name change and a restructuring of the note and Deed
of Trust to reflect the different requirements of the MHP program; and
WHEREAS, the owners shall agree to restrict, though a Regulatory Agreement approved
as an attachment to the Disposition and Development Agreement, the rents on 49% of the
proposed units (32)to levels affordable to families with incomes no more than 60% of Area
Median Income (AMI); and
WHEREAS, a Notice of Public Hearing concerning the Disposition and Development
Agreement was published in accordance with applicable law; and I
CkA -G
WHEREAS, the Agency has considered the staff report, and all the information, testimony
and evidence provided during the public hearing on December 3, 2003; and
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of the
City of Palm Springs, as follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA), the
Community Redevelopment Agency finds as follows:
a) The City Council adopted a Mitigated Negative Declaration
for the project based on the preparation of an Initial Study
and the recommendation of the Planning Commission.
Mitigation measures are included in the project design and
adopted as part of the Conditions of Approval for the
Project.
b) The Agency finds that the Planning Commission adequately
discussed the potential significant environmental effects of
the proposed project(land use,traffic/circulation, parking,air
quality, noise, aesthetics, geology/soils, water quality,
drainage, public utilities, public services,
archaeological/historic resources, public controversy, and
light and glare). The Community Redevelopment Agency
further finds that the Mitigated Negative Declaration reflects
its independent judgment.
SECTION 3. The Agency does hereby find and determine as follows:
a) The project was originally approved by the City Council on
July 3, 2002. In February, 2002 the Developers requested
Community Redevelopment Agency assistance and a
Disposition and Development Agreement, contributing
$750,000 over three (3) years and land valued at $250,000
to the project, was also approved on July 3, 2002.
b) The parcel was acquired by the Community Redevelopment
Agency for the purposes of providing low- and moderate-
income housing on it. Coachella Valley Housing Coalition
has a previously-approved tract map on it for the
development of 20 self-help homes.
c) The Developer intended to apply for 9% credits (LIHTC), but
was unsuccessful in the LIHTC process. The developer has
since received federal HOME funds, as well as state MHP
funds, nearly sufficient to construct the project.
d) The DDA effectuates the purposes of the Community
Redevelopment Law by assisting in the development of
housing affordable to families with incomes below 60% of
Area Median Income and preserving the affordability of that
housing for a period of 55 years.
f) The DDA effectuates the purposes of the Community
Redevelopment Law as it is intended to eliminate blight and
promote the health,safety and general welfare of the people
of Palm Springs.
SECTION 6. The proposed project is consistent with the Five Year
Implementation Plan and Housing Compliance Plan for the Palm
Springs Community Redevelopment Agency, insofar as this project
will provide additional housing for persons of low- or moderate
income within the City of Palm Springs.
SECTION 7. Based on foregoing reasons, this Restated and Amended
Disposition and Development Agreement with Coachella Valley
Housing Coalition and Hacienda Sunset Affordable Housing
Associates, a California Limited Partnership, is hereby approved
and incorporated herein by this reference.
SECTION 8. The Chairman, or his designee, is hereby authorized to execute on
behalf of the Agency the Restated and Amended Disposition and
Development Agreement and other documents necessary to the
Agreement, and make minor changes as may be deemed
necessary, in a form approved by Agency Counsel.
ADOPTED this day of 2003.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED & APPROVED AS TO FORM
RESOLUTION NO.
OF THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA APPROVING
AMENDMENT NO. 1 TO A DISPOSITION AND
DEVELOPMENT AGREEMENT WITH COACHELLAVALLEY
HOUSING COALITION AND HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP TO EFFECTUATE THE
DEVELOPMENT OF A LOW-INCOME APARTMENT
COMPLEX ON THE WEST SIDE OF SUNRISE WAY, NORTH
OF SAN RAFAEL ROAD AND SOUTH OF THE COYOTE
RUN APARTMENTS
WHEREAS, the Community Redevelopment Agency of the City of Palm Springs (the
"Agency")has established an affordable housing setaside fund in accordance with Section
33000 et. seq. of the California Health and Safety Code; and
WHEREAS, the funds are earmarked for the acquisition, construction, or rehabilitation of
affordable housing to benefit the community; and
WHEREAS, Sunset Hacienda Apartments, proposed for low-income families, was
approved on July 3, 2002 by the Palm Springs City Council; and
WHEREAS, the property developers, Coachella Valley Housing Coalition and Hacienda
Sunset Affordable Housing Associates, a California Limited Partnership, sought Agency
financial assistance to cover a portion of the development cost, and received Agency
approval of a Disposition and Development Agreement at a duly noticed public hearing
held July 3, 2002; and
WHEREAS, the property developers, Coachella Valley Housing Coalition and Hacienda
Sunset Affordable Housing Associates, a California Limited Partnership, submitted a tax
credit application to the California Tax Credit Allocation Committee for the July 17, 2002
application round but were unsuccessful; and
WHEREAS, Section 33430 of the Community Redevelopment Law allows that an agency
may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99 years,
exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of trust, or
otherwise, or otherwise dispose of any real or personal property or any interest in
property;" and
WHEREAS, the property developers have requested a number of minor modifications to
the DDA, including a partnership name change and a restructuring of the note and Deed
of Trust to reflect the different requirements of the MHP program; and
WHEREAS, the owners shall agree to restrict, though a Regulatory Agreement approved
as an attachment to the Disposition and Development Agreement, the rents on 49% of the
proposed units (32)to levels affordable to families with incomes no more than 60% of Area
Median Income (AMI); and
WHEREAS, a Notice of Public Hearing concerning the Disposition and Development
Agreement was published in accordance with applicable law; and
�,2 A-���
WHEREAS, the Agency has considered the staff report, and all the information, testimony
and evidence provided during the public hearing on December 3, 2003; and
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of the
City of Palm Springs, as follows:
SECTION 1. The above recitals are true and correct and incorporated herein.
SECTION 2. Pursuant to the California Environmental Quality Act (CEQA), the
Community Redevelopment Agency finds as follows:
a) The City Council adopted a Mitigated Negative Declaration
for the project based on the preparation of an Initial Study
and the recommendation of the Planning Commission.
Mitigation measures are included in the project design and
adopted as part of the Conditions of Approval for the
Project.
b) The Agency finds that the Planning Commission adequately
discussed the potential significant environmental effects of
the proposed project(land use,traffic/circulation,parking,air
quality, noise, aesthetics, geology/soils, water quality,
drainage, public utilities, public services,
archaeological/historic resources, public controversy, and
light and glare). The Community Redevelopment Agency
further finds that the Mitigated Negative Declaration reflects
its independent judgment.
SECTION 3. The Agency does hereby find and determine as follows:
a) The project was originally approved by the City Council on
July 3, 2002. In February, 2002 the Developers requested
Community Redevelopment Agency assistance and a
Disposition and Development Agreement, contributing
$750,000 over three (3) years and land valued at $250,000
to the project, was also approved on July 3, 2002.
b) The parcel was acquired by the Community Redevelopment
Agency for the purposes of providing low- and moderate-
income housing on it. Coachella Valley Housing Coalition
has a previously-approved tract map on it for the
development of 20 self-help homes.
c) The Developer intended to apply for 9% credits (LIHTC), but
was unsuccessful in the LIHTC process. The developer has
since received federal HOME funds, as well as state MHP
funds, nearly sufficient to construct the project.
d) The DDA effectuates the purposes of the Community
Redevelopment Law by assisting in the development of
housing affordable to families with incomes below 60% of
Area Median Income and preserving the affordability of that
C�A "��
housing for a period of 55 years.
f) The DDA effectuates the purposes of the Community
Redevelopment Law as it is intended to eliminate blight and
promote the health, safety and general welfare of the people
of Palm Springs.
SECTION 6. The proposed project is consistent with the Five Year
Implementation Plan and Housing Compliance Plan for the Palm
Springs Community Redevelopment Agency, insofar as this project
will provide additional housing for persons of low- or moderate
income within the City of Palm Springs.
SECTION 7. Based on foregoing reasons,this Amendment No. 1 to a Disposition
and Development Agreement with Coachella Valley Housing
Coalition and Hacienda Sunset Affordable Housing Associates, a
California Limited Partnership, is hereby approved and incorporated
herein by this reference.
SECTION 8. The Chairman, or his designee, is hereby authorized to execute on
behalf of the Agency the Disposition and Development Agreement
and other documents necessary to the Agreement, and make minor
changes as may be deemed necessary, in a form approved by
Agency Counsel.
ADOPTED this day of 2003.
AYES:
NOES:
ABSENT:
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, CALIFORNIA
By
Assistant Secretary Chairman
REVIEWED & APPROVED AS TO FORM
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS,CALIFORN[A APPROVING A RESTATED
AND AMENDED DISPOSITION AND
DEVELOPMENT AGREEMENT WITH COACHELLA
VALLEY HOUSING COALITION AND HACIENDA
SUNSET AFFORDABLE HOUSING ASSOCIATES,
A CALIFORNIA LIMITED PARTNERSHIP TO
EFFECTUATE THE DEVELOPMENT OF A LOW-
INCOME APARTMENT COMPLEX ON THE WEST
SIDE OF SUNRISE WAY, NORTH OF SAN RAFAEL
ROAD AND SOUTH OF THE COYOTE RUN
APARTMENTS
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs that it
concurs with the action of the Community Redevelopment Agency in the matter of approving a
Restated and Amended Disposition and Development Agreement with Coachella Valley Housing
Coalition and Hacienda Sunset Affordable Housing Associates, a California Limited Partnership
to effectuate the development of a low-income apartment complex on the west side of Sunrise
Way, north of San Rafael Road
ADOPTED this day of 2003.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED &APPROVED AS TO FORM
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS,CALI FORN IA APPROVING AMENDMENT
NO, 1 TO A DISPOSITION AND DEVELOPMENT
AGREEMENT WITH COACHELLA VALLEY
HOUSING COALITION AND HACIENDA SUNSET
AFFORDABLE HOUSING ASSOCIATES, A
CALIFORNIA LIMITED PARTNERSHIP TO
EFFECTUATE THE DEVELOPMENT OF A LOW-
INCOME APARTMENT COMPLEX ON THE WEST
SIDE OF SUNRISE WAY, NORTH OF SAN RAFAEL
ROAD AND SOUTH OF THE COYOTE RUN
APARTMENTS
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs that it
concurs with the action of the Community Redevelopment Agency in the matter of approving
Amendment No. 1 to a Disposition and Development Agreement with Coachella Valley Housing
Coalition and Hacienda Sunset Affordable Housing Associates, a California Limited Partnership
to effectuate the development of a low-income apartment complex on the west side of Sunrise
Way, north of San Rafael Road
ADOPTED this day of 12003.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED &APPROVED AS TO FORM