HomeMy WebLinkAbout00458C - BURNETT DEVELOPMENT DDA DOCUMENT TRACKING Page: 2
Report: Expired Documents Summary March 4, 2008
Condition: Oldest Date= 1 1, Groups=COMMUNITY& ECONOMIC,ALL Services,ALL XREFs
Document# Description Approval Date Expiration Date Closed Date
A0453C Dispo& Dev Agr-Sunrise Way/San Rafael-2 Parcels 12/18/2002 12/31/2003
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Company Name: K Hovnanian Companies LS
Address: 2495 Campus Drive, Irvine, CA 92612 lu , , �J:Sr`
Phone: (949) 660-1130 l� V/1_ yr f n u
Group: COMMUNITY& ECONOMIC 1 1 f r Y`
Service: In File
xRef: COMMUNITY & ECONOMIC DEVELOPMENT 1 Q
Ins. Status: A policy has Expired
A0464C DDA Appl Low Income Hsg Desert Aids Proj Family Care Ctr-see... 07/1612003 07/01d2oJ07
CA- ,�I /r c
Company Name: Vista Sunrise Apartments LP t�r +fJtA' �� � � � �' �
Address: yVR lY"� `1 �a � I �V'OL
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Group: COMMUNITY& ECONOMIC ��r,/�
Service: MIA
xRef: COMMUNITY & ECONOMIC DEVELOPMENT �Q �t � 11 �M"
Ins. Status: Certificate and Policies are OK Y IIIYYY
A0470C D D A Facilitate H U D Bands T E F R A Hrg $5,000,000 Nab Mobil ... 11/19/2003 11/01/2004 r
Company Name: Santiago Sunrise Village Mobilehome Pk.
Address: I 6
Group: COMMUNITY& ECONOMIC
Service: In File `
xRef: COMMUNITY& ECONOMIC DEVELOPMENT r
Ins. Status: INACTIVE
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K Hovnanian's
Four Seasons @ PS
1s`Amend to DDA
AGREEMENT#0458C
FIRST AMENDMENT TO R 1276, 3-2-05
DISPOSITION AND DEVELOPMENT AGREEMEN,-- -This First Amendment to Disposition and Development Agreement (the "First
Amendment") is entered into this _�hA day of m(pv?,lA_ , 2005 (the "Effective
Date")by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
PALM SPRINGS, CALIFORNIA, a public body, corporate and politic, ("the Agency')and K
HOVNANIAN COMPANIES or its related entities,as successorto the interests of BURNETT
DEVELOPMENT CORPORATION (collectively, "Developer") under the Disposition and
Development Agreement dated December 18, 2002 (the "Agreement"), and is intended to
provide for an additional transfer of property for the completion of the Developer's
construction of the project.
RECITALS
A. Agency is a public body, corporate and politic,exercising governmental functions and
powers and organized and existing under the Community Redevelopment Law of the State
of California (Health and Safety Code Section 33000 et. seq.) to carry out the purpose of
redevelopment in the City of Palm Springs ("the City').
B. Agency and Developer entered into the Agreement through which Developerwas to
assemble the Site as described in the Agreement and prepare for the construction of a
major single-family home development (the "Project"), which Project would require
disposition to Developer of parcels located at the corner of Sunrise Way and San Rafael
Road, including two parcels equaling approximately 41.38 acres combined, owned by the
Agency.
C. Developer requires,for the purposes of completing the Project and including Desert
Water Agency("DWA")access to a well site located within the Site, an additional parcel of
Agency-owned land measuring approximately 50 feet by 920 feet, or 1.06+ acres (the
"Parcel"), which is encumbered by a public utility easement and which is located along the
northern edge of property previously conveyed by the Agency to Developer.
D. Agency desires to sell the Parcel to Developer to return the land to productive use
and facilitate additional market-rate development in the area around the Site, including the
generation, of property taxes and provide for public improvements that benefit the Agency's
Merged Project No. 1.
E. Section 33430 of the Community Redevelopment Law allows that an agency may,
"for purpose 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
dispose of any real or personal property or any interest in property'.
F. The purchase of the Parcel by Developer is at fair market value and the First
Amendment therefore does not contain any Agency financial assistance to the project.
G. A Notice of Public Hearing concerning the First Amendment was published in
accordance with applicable law.
H. Agency has considered the staff report, and all the information, testimony and
evidence provided during the public hearing on March 2, 2005.
NOW, THEREFORE, based upon the foregoing recitals and the terms, conditions,
covenants, and agreement contained herein, the parties hereto agree to amend the
Agreement as follows:
Section 1. Developer and Agency agree that Section 1. Definitions shall be
amended to add Section 1.19 to read as follows:
Section 1.19 Lot C Remainder shall be added to read as follows: The term
"Lot C Remainder"shall mean that certain real property as specifically described and
shown on Exhibit "G" attached hereto and incorporated herein by this reference.
Section 2. Developer and Agency agree that Section 3.1(a) Identification shall be
amended to read as follows:
Section 3.1(a) Identification. Developer is K. Hovnanian's Four Seasons at
Palm Springs, LLC, or its related entities, as successor to the interests of Burnett
Development Corporation under this Agreement. The principal office of Developer
for the purposes of this Agreement is located at 2495 Campus Drive, Irvine, CA
92612. Developer warrants and represents to Agency that Developer is qualified to
do business in good standing under the laws of the State of California and has all
requisite power and authority to carry out Developer's business as now and
whenever conducted and to enter into and perform Developer's obligations under
this Agreement.
Section 3. Developer and Agency agree that Section 5. Acquisition and
Disposition of the Site shall be amended to add Section 5.15 to read as follows:
Section 5.15 Sale of Lot C Remainder. Subject to all of the terms and
conditions of this Agreement,Agency shall convey Lot C Remainderto Developerfor
the total purchase price of Eight Thousand Two Hundred and 00/100 Dollars
($8,200.00) to be paid in cash at closing. The Grant Deed transferring Agency's
ownership of Lot C Remainder to Developer shall be substantially in the form
attached hereto as Exhibit"H", shall reserve a public utility easement as determined
by the City's Engineering Department and shall, upon Developer's satisfactory
completion of Developer's obligations under the provisions of the Amendment, be
recorded in the appropriate records of Riverside County, California.
Section 4. Developer and Agency agree that except as provided herein, the
Agreement continues unmodified and in full force and effect.
IN WITNESS WHEREOFAgency and Developerhave executed this Amendment as
of the date first written above.
"AGENCY"
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, a public
body, corporate and politic
BY I ..
ssis�d�t Secretary Executive Directpr-
RAVE a/ , jTO FORM: •fit il:Wfe 4 6vds � y gY fiG fi7�X
Af9ency Counsel 0 -�D
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(Corporations require two notarized signatures:One from
each of the following:A.Chairman of Board,President or
any Vice President;AND B. Secretary, Assistant
Secretary, Treasurer,Assistant Treasurer, or Chief
Financial Officer)
"DEVELOPER"
K. FIOVNANIAN'S FOUR SEASONS AT
PALM SPRINGS, LLC,
a California limited liability company
v 5ignature (N}atarzed)
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Signature (Notarized)
Print Name and Title
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of Californian
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County of
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CATHIE ZHOU i�>I
ROMV114otmcilmy
Commission# 1505516 to be the personwhose name- Is/arE ?�
Public-Californla subscribed to the within instrument andOrange County (( acknowledged to me that he/she/they executedCo .ExpresAug17,2008t the same in his/h'erAheir authorized Z
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�( Though the information below Is not required by law,it may prove valuable to persons relying on the document and could prevent !;�I
(� fraudulent removal and reattachment of this form to another document )�
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Document Date: Ma v--r �I 7-F,'7> S _Number of Pages: 4-
Signer(s)Other Than Named Above:
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Signer's Name: 01
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01999 National Notary Assootatlon•9350 De Soto Ave,PO Bo%2402•Chalswerth,CA91313-2402•wwwnalionalnoferyorg Pfotl No 5907 vFeender Cell Toll-Free 1800353£827
EXHIBIT"G"
egal Description for Lot C Remainder
EXHIBIT"A"
LEGAL DESCRIPTION
Lot C of Tract No. 17642-1, as shown by a map on file in Book 122, Pages 88 through 90, inclusive,
of Maps, Records of Riverside County.
Except that portion of said Lot C lying within Parcel 1 and Parcel 2 of Lot Line Adjustment No.
LLA 99-12, recorded April 29, 2003, as Instrument No. 2003-300163 of Official Records of said
County.
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R rGy Williams, L.S.No.6654 Rory S.Williams 0
License]Wires- December 31,2005 Exp,12131105
Date: _\/ZCS/US No. 6654
9rFOF CA�1F���
Revised:January 28,2005
November 17,2004
WO No. 1583-13X
Page 1 of 1
H&A Legal No.6252
By R.Williazns
Checked By J. Stablein
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CITY OF PALM SPRINGS VACATION OF
U N PUBLIC WORKS & ENGINEERING RIGHT-OF-WAY
DEPARTMENT H&A LEGAL NO, 6252
LEGAL DESCRIPTION: DESIGN BY: SCALE: FILE NO.:
SEE EXHIBIT "A" B. ETEMADI 1" = 200' R-04-047
CHECKED BY: W.O. / SHEET NO.:
R. WILLIAMS 1583-13X 2 OF 2
EXHIBIT"H"
Grant Deed for Lot C Remainder
rc�uww.
City Clerk
City of Palm Springs
Box 2743
Palm Springs, CA 92263 (FOR RECORDERS USE ONLY)
Pursuant to Government Code Section 6103, this document is being recorded as a benefit to the City of Palm Springs and recording fees shall not apply.
File No.R-04-047 NO DOCUMENTARY STAMPS NEEDED
GRANT DEED
For a valuable consideration, receipt of which is hereby acknowledged, the Community Redevelopment Agency
of the City of Palm Springs, a public body, corporate and politic, GRANTOR, hereby grants to K. Hovnanian's
Four Seasons at Palm Springs, LLC, a California Limited Liability Company, GRANTEE, the following
described property in the City of Palm Springs, County of Riverside, State of California, described as follows:
Being the parcel of land described in Exhibit "A" and shown on Exhibit "B" attached hereto and made a part
hereof.
Date: Community Redevelopment Agency of the City of
Palm Springs, a public body, corporate and politic
Attest By
James Thompson, Assistant Secretary Ron Oden, Chairman
Printed Name and Title Printed Narne and Tide
ALL-PURPOSE ACKNOWLEDGMENT
state of CAPACITY CLAIMED BY SIGNER
County of ❑ INDIVIDUAL(S)
❑ CORPORATE
On_ before me, OFFICER(S)
Date Name, Title of Officer TITLE(S)
personally appeared ❑ PARTNER(S)
NAME(S)OF SIGNERS) ❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑personally known to me-OR- ❑ SUBSCRIBING WITNESS
❑ GUARDIAN/CONSERVATOR
❑ proved to me on the basis of satisfactory evidence to be the persons(s) whose name(s) ❑ OTHER
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 persons(s)acted,executed
the instrument. SIGNER IS REPRESENTING:
Witness my hand and official seal.
Signature of Notary
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this
certificate to unauthorized document.
THIS CERTIFICATE Title or Type of Document
MUST BE ATTACHED
TO THE DOCUMENT Number of Pages_ DATE of DOCUMENT
DESCRIBED AT RIGHT:
Signer(s) Other Than Named Above
EXHIBIT"A"
LEGAL DESCRIPTION
Lot C of Tract No. 17642-1, as shown by a map on file in Book 122, Pages 88 through 90, inclusive,
of Maps,Records of Riverside County.
Except that portion of said Lot C lying within Parcel I and Parcel 2 of Lot Line Adjustment No.
LLA 99-12, recorded April 29, 2003, as Instrument No. 2003-300163 of Official Records of said
County.
-A Eoory
AND S��LF
l Williams, L.S. No. 6654 J� Rory S.
License Tres- December 31, 2005 Rory
S. Williamsillia
Date: � 1/05
/U5 No. 6654
q�oF CAUF���
Revised:January 28,2005
November V,2004
WO No. 1583-13X
Page 1 of 1
H&A Legal No. 6252
By R.Williams
Checked By J.Stable-in
EXHIBIT ''B
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�` PALMSA� CITY OF PALM SPRINGS VACATION OF
H PUBLIC WORKS & ENGINEERING RIGHT-OF-WAY
DEPARTMENT H&A LEGAL NO. 6252
LEGAL DESCRIPTION: DESIGN BY; SCALE: FILE NO.:
B. ETEMADI 1" = 200' R-04-047
SEE EXHIBIT A CHECKED BY: W.O. N SHEET NO.;
R. WILLIAMS 1583-13X 2 OF 2
CONTRACT ABSTRACT
Contract
Company Name: K. Hovnanian's Four Seasons at Palm Springs, LLC.
Company Contact: A. Damon Gascon
Summary of Services: Agency shall convey Lot C Remainder to Developer for total purchase
price of$8,200 to be paid in cash at closing. Transfer of ownership
will reserve a public utility easement as determined by the City's
Engineering Department.
Contract Price: $8,200
Funding Source: N/A
Contract Term: N/A
Contract Administration
Lead Department: Community& Economic Development
Contract Administrator: John S. Raymond
Contract Approvals
Council/ Community Redevelopment
Agency Approval Date:
Minute Order/ Resolution�N�ur>1fbe asS O"La
Agreement No: JV21yVo
Contract Compliance
Exhibits: Al{&LQ
Signatures: t4oveto oyi+ ��ti� ktlm nov AUK s� r
Insurance: ,&J/A
Bonds: �l.R
Contract prepared by:
Submitted on: 3- ?— c`)S By: 6('Iu 'zefl J,
Burnett Development Corp
_ DDA
AGREEMENT #458C
R1204, 12-18-02
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
and
BURNETT DEVELOPMENT CORPORATION,
a Califomia corporation
� M
IRV#14129 vs
TABLE OF CONTENTS
Page No.
1. DEFINITIONS.........................................................................................................2
1.1 Agreement....................................................................................................2
1.2 Certificate of Completion. ...........................................................................2
1.3 City...............................................................................................................2
1.4 Days. ............................................................................................................2
1.5 Declaration...................................................................................................2
1.6 Deed. ............................................................................................................2
1.7 Development Plans. .....................................................................................2
1.8 Effective Date. .............................................................................................2
1.9 Enforced Delay. ...........................................................................................2
1.10 Parcel S. .......................................................................................................2
1.11 Parcel Q........................................................................................................2
1.12 Parcel RI......................................................................................................3
1.13 Project. .........................................................................................................3
1.14 Project Area. ................................................................................................3
1.15 Redevelopment Plan. ...................................................................................3
1.16 Schedule of Performance. ............................................................................3
1.17 Scope of Development.................................................................................3
1.18 Site. ..............................................................................................................3
2. PURPOSE OF AGREEMENT. ...............................................................................3
3. REPRESENTATIONS AND WARRANTIES........................................................4
3.1 Developer Representations and Warranties.................................................4
(a) Identification....................................................................................4
(b) Qualifications...................................................................................4
(c) Litigation..........................................................................................4
(d) No Default........................................................................................4
(e) No Violation.....................................................................................5
(fl No BankWtcy.................................................................................5
(g) No Misrepresentation.......................................................................5
(h) Disclosure. .......................................................................................5
IRV#14129 v5
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(i) Due Execution..................................................................................5
0) No Extraneous Consideration. .........................................................5
3.2 Agency Representations and Warranties. ....................................................5
(a) No Approvals...................................................................................5
(b) Due Execution..................................................................................5
(c) Governmental Approvals.................................................................6
4. CONSTRUCTION OF THE PROJECT..................................................................6
4.1 Development in Accordance with Plans......................................................6
4.2 Evolution of Development Plans. ................................................................6
4.3 Other Governmental Permits. ......................................................................6
4.4 Approval by Agency....................................................................................7
4.5 Agency Assistance.......................................................................................7
4.6 Cost of Construction. ...................................................................................7
4.7 Construction Schedule; Reports...................................................................7
4.8 Plans and Specifications. .............................................................................8
4.9 Nondiscrimination During Construction......................................................8
4.10 Rights of Access. .........................................................................................8
4.11 Easements. ...................................................................................................8
4.12 Certificate of Completion. ...........................................................................8
5. ACQUISITION AND DISPOSITION OF THE SITE. ...........................................9
5.1 Acquisition of Parcels S, Q and Rl. ............................................................9
(a) Negotiated Purchase of Parcel S and Leasehold Rights of RI. .......9
(b) Condemnation..................................................................................9
5.2 Cost Exceeding Fair Market Value..............................................................9
5.3 Sale of Parcel S..........................................................................................10
(a) Conveyance of Parcel S to Developer upon Acquisition by
EminentDomain............................................................................10
(b) Purpose of Sale. .............................................................................11
5.4 Sale of Parcel Q and Parcel Rl..................................................................11
(a) Parcel Q..........................................................................................11
(b) Parcel R1........................................................................................11
5.5 Escrow for Sale of Parcels S, Q and R1.....................................................12
IRV#14129 v5 -il-
5.6 Conditions to Close of Escrow. .................................................................12
(a) Developer's Conditions to Closing................................................12
(b) Agency's Conditions to Closing....................................................13
5.7 Both Parties' Conditions to Closing. .........................................................13
5.8 Conveyance of the Site. .............................................................................14
(a) Time for Conveyance.....................................................................14
(b) Escrow Agent to Advise of Costs..................................................14
(c) Deposits By Agency Prior to Closing............................................14
(d) Deposits By Developer Prior to Closing........................................14
(e) Recordation and Disbursement of Funds.......................................14
5.9 Title Matters...............................................................................................15
(a) Condition of Title...........................................................................15
(b) Exclusion of Oil, Gas, and Hydrocarbons. ....................................15
(c) Agency Not to Encumber Site. ......................................................15
(d) Approval of Title Exceptions.........................................................15
(e) Title Policy.....................................................................................16
5.10 Evidence of Financial Capability...............................................................16
5.11 Condition of Site........................................................................................17
(a) Disclaimer of Warranties...............................................................17
(b) Right to Enter Site, Indemnification..............................................17
(c) Hazardous Materials. .....................................................................17
5.12 Costs of Escrow. ........................................................................................20
(a) Allocation of Costs. .......................................................................20
(b) Proration and Adjustments.............................................................20
(c) Extraordinary Services of Escrow Agent.......................................20
(d) Escrow Agent's Right to Retain Documents. ................................20
5.13 Termination of Escrow. .............................................................................21
(a) Termination....................................................................................21
(b) Opportunity to Cure.......................................................................21
5.14 Responsibility of Escrow Agent. ...............................................................22
(a) Deposit of Funds............................................................................22
(b) Notices. ..........................................................................................22
IRV#14129 v5 -iii-
(c) Sufficiency of Documents..............................................................22
(d) Exculpation of Escrow A>?ent. .......................................................22
(e) Responsibilities in the Event of Controversies. .............................22
6. SALE OR TRANSFER OF THE PROJECT.........................................................22
6.1 Transfer Defined. .......................................................................................23
6.2 Agency Approval of Transfer Required. ...................................................23
6.3 Release; Assumption..................................................................................23
6.4 Relocation Assistance. ...............................................................................23
7. INSURANCE AND INDEMNIFICATION..........................................................24
7.1 Insurance....................................................................................................24
(a) Comprehensive General Liability Insurance. ................................24
(b) Worker's Compensation Insurance. ...............................................24
(c) Automotive Insurance....................................................................24
(d) Builder's Risk Insurance. ...............................................................24
7.2 Indeinmfication..........................................................................................25
8. RIGHTS OF HOLDERS OF APPROVED SECURITY INTERESTS IN SITE..26
8.1 Definitions..................................................................................................26
8.2 Limitation on Encumbrances. ....................................................................26
8.3 Developer's Breach Not Defeat Mortgage Lien.........................................26
8.4 Holder Not Obligated to Constrict or Complete Improvements...............26
8.5 Notice of Default to Mortgagee, Deed of Trust or Other Security Interest
Holders.......................................................................................................27
8.6 Right to Cure..............................................................................................27
8.7 Agency's Rights upon Failure of Holder to Complete hnprovements.......27
8.8 Right of Agency to Cure Mortgage, Deed of Trust or Other Security
hiterestDefault...........................................................................................28
8.9 Right of the Agency to Satisfy Other Liens on the Property After
Conveyance of Title...................................................................................29
9. USE OF THE SITE................................................................................................29
9.1 Use of the Site............................................................................................29
9.2 Use hi Accordance with Redevelopment Plan; Nondiscrimination. .........29
9.3 Effect of Covenants....................................................................................31
IRV#14129 v5 -iv-
9.4 Taxes and Assessments and Liens.............................................................31
10. ENFORCEMENT..................................................................................................31
10.1 Defaults, Right to Cure and Waivers.........................................................31
10.2 Agency Defaults.........................................................................................32
10.3 Notice of Default........................................................................................33
10.4 Remedies....................................................................................................33
10.5 Agency's Right to Terminate. ....................................................................33
10.6 Rights and Remedies are Cumulative........................................................33
10.7 Specific Performance.................................................................................34
10.8 Attorney's Fees...........................................................................................34
11. MISCELLANEOUS. .............................................................................................34
11.1 Notices. ......................................................................................................34
11.2 Applicable Law and Forum. ......................................................................35
11.3 Acceptance of Service of Process..............................................................35
11.4 Conflicts of Interest....................................................................................35
11.5 Nonliability of Agency Officials and Employ......................................35
11.6 Enforced Delay: Extension of Times of Performance. ............................35
11.7 Books and Records. ...................................................................................36
(a) Maintenance of Books and Records. .............................................36
(b) Right to hispect..............................................................................36
11.8 Modifications. ............................................................................................36
11.9 Merger of Prior Agreements and Understandings. ....................................36
11.10 Binding Effect of Agreement.....................................................................36
11.11 Assurances to Act in Good Faith. ..............................................................36
11.12 Severability. ...............................................................................................37
11.13 Interpretation..............................................................................................37
11.14 Entire Agreement, Waivers and Amendments...........................................37
11.15 Time for Acceptance of Agreement by Agency .••.•••.•..............................37
11.16 Counterparts...............................................................................................37
11.17 bite rag tio11..................................................................................................37
11.18 Exhibits. .....................................................................................................37
IRV#14129 v5 _V_
EXHIBIT "A-1" SITE MAP A-1
EXHIBIT "A-2" LEGAL DESCRIPTION OF THE SITE....................................................A-2
EXHIBIT "A-2" SITE MAP OF PARK PROPERTY IMPROVEMENTS...........................A-3
EXHIBIT `B" SCHEDULE OF PERFORMANCE...........................................................B-1
EXHIBIT "C" SCOPE OF DEVELOPMENT ...................................................................C-1
EXHIBIT "D" CERTIFICATE OF COMPLETION..........................................................D-1
EXHIBIT "E" DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS ........................................................................................ E-1
EXHIBIT "F" GRANT DEED............................................................................................F-1
IRV#14129 v5 -Vl-
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is entered
into this/je 7 day of a ,r n✓?®x3., 2002 (the "Effective Date")by and between the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate and politic ("Agency"), and BURNETT
DEVELOPMENT CORPORATION, a California corporation('Developer").
RECITALS
A. Agency is a public body, corporate and politic, exercising governmental functions
and powers and organized and existing under the Community Redevelopment Law of the State
of California(Health and Safety Code Section 33000, et sec..)
B. Agency desires to implement the Redevelopment Plan for its Merged Project Area
No. 1 (`Project Area")by providing for the development of property which is partly within or
adjacent to the Project Area, and which benefits the Project Area. Such property is designated
herein as the "Site" and the development thereon as the "Project" (as those terns are defined
herein). (Site Map is attached hereto as Exhibit"A-1")
C. Developer has proposed assembling the site and preparing for the construction of
a major single-family home development of no fewer than 176 units,which Project will require
disposition to Developer of parcels located at the corner of Sunrise Way and San Rafael Road,
including two parcels equaling approximately 43 acres combined, owned by the Agency and
referred to herein as "Parcel Q" and "Parcel Rl", and acquisition of that portion of the Site
referred to herein as "Parcel S" an approximately 3 acre parcel owned by the City and the
leasehold interest on Parcel Rl, to which Developer does not have any ownership or possessory
interest.
D. The Agency and the City held a joint public hearing on December 18, 2002,
pursuant to a Notice of Public Hearing duly published, to consider the Project.
E. On December 18, 2002, the City and Agency found that the assembly,preparation
for development and ultimate construction of the Site as proposed by Developer pursuant to this
Agreement, and the fiilfillment generally of this Agreement will effectuate the Redevelopment
Plan and are in the vital and best interests of the City and the health, safety, and welfare of its
residents and in accord with the public purposes and provisions of the applicable state and local
laws and requirements under which the Project has been undertaken and is being assisted.
F. In connection with the Agency's approval of this Agreement, a Mitigated
Negative Declaration ("MND") was prepared in compliance with the California Environmental
Quality Act, Public Resources Code Section 21000 et se ., as amended("CEQA"), the State
CEQA Guidelines and the City's CEQA procedures. The Agency found that, in its independent
judgment, the requirements in the MND adequately address the potential significant
enviromnental effects of the proposed Project, including land use, traffic/circulation, parking, air
IRV#14129 v5 -I-
0
quality, noise, aesthetics, geology/soils, water quality, drainage,public utilities, public safety,
archaeological/historic resources and light and glare.
NOW THEREFORE, in consideration of the promises and covenants contained herein,
the above recitals, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 Agreement. The tern "Agreement" shall mean this entire Disposition and
Development Agreement, including all exhibits, which exhibits are a part hereof and
incorporated herein in their entirety, and all other documents attached hereto which are
incorporated herein by reference as if set forth in full.
1.2 Certificate of Completion. The term "Certificate of Completion" shall
mean that certain Certificate of Completion attached hereto as Exhibit "D".
1.3 City. The terns "City" shall mean the CITY OF PALM SPRINGS, a
municipal corporation,having its offices at 3200 East Tahquitz Canyon Way, Palm Springs,
California 92262.
1.4 Days. The term "days" shall mean calendar days and the statement of any
time period herein shall be calendar days, and not working days, unless otherwise specified.
1.5 Declaration. The tern "Declaration" shall mean that certain Declaration
of Covenants, Conditions and Restrictions in the form attached hereto as Exhibit "E".
1.6 Deed. The term "Deed" or"Grant Deed" shall mean those certain grant
deeds for the transfer of Parcel S, Q and Rl, executed by the parties substantially in the fonn
attached hereto as Exhibit "17".
1.7 Development Plans. The term "Development Plans" shall have the
meaning set forth in Section 4.1 below.
1.8 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.
1.9 Enforced Delay. The tern "Enforced Delay" shall have the meaning set
forth in Section 11.6 below.
1.10 Parcel S. The tenin "Parcel S" shall mean that certain real property located
within the Site as shown as Parcel S on Exhibit "A-I" attached hereto and incorporated herein by
this reference.
1.11 Parcel Q. The teen "Parcel Q" shall mean that certain real property
located within the Site as shown as Parcel Q on Exhibit "A-I" attached hereto and incorporated
herein by this reference.
IRV#14129 v5 _2_
1
1.12 Parcel R1. The term "Parcel R1" shall mean that certain real property
located within the Site as shown as Parcel Rl on Exhibit"A-1", which comprises that certain
defined portion of Parcel R as shown on Exhibit"A" attached hereto and incorporated berein by
this reference.
1.13 Project. The term "Project" shall mean all of the preparation for
development, construction, and improvements to be performed by Developer on the Site
pursuant to this Agreement. The Project is more particularly described in the Scope of
Development attached hereto as Exhibit "C". Upon completion, the Project will consist of a
major single-family]ionic development at the Site.
1.14 Project Area. The teen"Project Area" shall mean the Merged Project
Area No. 1.
1.15 Redevelopment Plan. The term "Redevelopment Plan" shall mean the
Redevelopment Plan for the Merged Project Area No. 1 which was adopted by Ordinance
Number 1584 of the City Council of City on May 31, 2000. A copy of the Redevelopment Plan
is on file in the Office of the City Clerk of the City. The Redevelopment Plan is incorporated
herein by this reference as though fully set forth herein.
1.16 Schedule of Performance. The term "Schedule of Performance" shall
mean that certain Schedule attached hereto as Exhibit "B".
1.17 Scope of Development.tent. The term "Scope of Development" shall mean
that certain exhibit attached hereto as Exhibit "C" and incorporated herein by reference which
sets forth the terms of the Project.
1.18 Site. The term "Site" shall mean that certain unimproved real property
located in close proximity to the Project Area and in the City of Palm Springs, County of
Riverside, State of California, consisting of approximately 46 acres, more particularly described
and shown on the Site Map Exhibit "A-1" attached hereto, which includes Parcels S, Q, and R1
and which are legally described and shown on Exhibit "A-2". Site shall also include that certain
park parcel to be improved by Developer as shown on Exhibit "A-3."
2. PURPOSE OF AGREEMENT.
This Agreement and the Exhibits attached hereto are intended to effectuate the
Redevelopment Plan for the Project Area by providing for the disposition of Parcels S and Q and
Parcel RI and development of the Project on the Site. Developer has agreed to participate in the
redevelopment of the Site by entering into this Agreement with Agency. The disposition of
Parcels S, Q and RI and development of the Site pursuant to this Agreement, and the fulfillment
generally of this Agreement, are in the best interests of the City and the welfare of its residents,
and are in accordance with the public purposes and provisions of applicable federal, state, and
local laws and requirements under which the Project has been undertaken and is being assisted.
This Agreement is entered into by the Agency pursuant to its authority under the
Community Redevelopment Law of the State of California, Health and Safety Code Sections
IRV#14129 v5 -3-
33000 et seq. (all statutory references herein are to the Health and Safety Code unless otherwise
provided); which authorizes the Agency to make agreements with owners, purchasers and lessees
of property in the Redevelopment Project Area providing for the development of property in
conformity with the Redevelopment Plan, and providing that the Agency retain controls and
establish restrictions or covenants running with the land so that the property will be developed,
operated, and used in conformity with this Agreement and the Redevelopment Plan(see Sections
33380, 33381, 33437-33439 and 33339). The funds received by the Agency for the transfer of
the Parcels Q and R1 shall be placed in the Agency Low to Moderate Housing Fund.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Developer Representations and Warranties. Developer hereby makes the
following representations, covenants, and warranties for the benefit of Agency, and Agency's
successors and assigns, and acknowledges that the execution of this Agreement by Agency has
been made, in MATERIAL reliance by Agency on such representations and warranties:
(a) Identification. Developer is Burnett Development Corporation, a
California corporation. The principal office of Developer for the purposes of this
Agreement is located at 1300 Bristol Street, Newport Beach, California 92663.
Developer warrants and represents to Agency that Developer is qualified to do business
in good standing under the laws ofthe State oCCaliforrnia 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.
(b) Qualifications. Subject to the provisions of Section 6, 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, and
product being marketed by Developer, the Site location and characteristics, the public
costs of acquiring and developing the Site and return on investment, and the product mix
necessary to produce a successful residential development. Based upon these
considerations, the Agency has imposed those restrictions on the transfer set forth in this
Agreement.
(c) Liti ag tion. There are no pending or threatened claims, actions,
proceedings, or lawsuits of any kind, whether for personal injury, property damage,
landlord-tenant disputes, property taxes, or otherwise, that could adversely affect title to
or the operation or value of the Site or which questions the validity or enforceability of
this transaction, nor is there any governmental investigation of any type or nature,
pending or threatened, against or relating to the Site or the transactions contemplated
hereby(other than those conducted by City and Agency).
(d) No Default. The execution and delivery of this Agreement will not
constitute or result in any default or event that with notice or the lapse of time, or both,
would be a default, breach, or violation of any lease,mortgage, deed of trust, or other
agreement, instrument or arrangement by which Developer is bound or any event which
IRv#14129 vs -4-
would pen-nit any party to terminate an agreement or accelerate the maturity of any
indebtedness or other obligation affecting Developer.
(e) No Violation. The execution and delivery of this Agreement and
the consummation of the transactions contemplated herein will not violate any provision
of, or require any consent, authorization, or approval under any law or administrative
regulation or any other order, award,judgment, writ, injunction or decree applicable to,
or any goverruricntal permit or license issued to, Developer or relating to the Developer
Parcel.
(f) No Bankruptcy. Neither Developer nor the entities constituting
Developer, if any, have filed or been the persons or subject of any filing of a petition
under the Federal Bankruptcy Law or any insolvency laws, or any laws for the discharge
of indebtedness or for the reorganization of debtors.
(g) No Misrepresentation. No representation, warranty, or covenant of
Developer in this Agreement, or in any document or certificate furnished or to be
furnished to Agency pursuant to this Agreenent, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading.
(h) Disclosure. Developer has disclosed all information concerning
the Site of which Developer is aware which may materially affect the value of the Site
and/or Developer's ability to develop and utilize the Site as provided in this Agreement.
(i) Due Execution. This Agreement has been duly executed by
Developer and constitutes a valid, binding, and enforceable obligation of Developer.
Developer is qualified to do business in and is in good standing with the State of
California, has fiull power and authority to enter this Agreement and all authorizations
required to malce this Agreement binding upon Developer have been obtained.
0) No Extraneous Consideration. Developer has not paid or given to,
and will not pay or give to, the Agency or City or any official or agent of the Agency or
City any money or other consideration for obtaining this Agreement, except as expressly
provided herein.
3.2 Agency Representations and Warranties. Agency hereby represents and
warrants for the benefit of Developer and Developer's successors and assigns, that the following
facts are true as of the execution of this Agreement:
(a) No Approvals. No approvals or consents not heretofore obtained
by Agency are necessary in connection with the execution of this Agreement by Agency
or with the performance by Agency of Agency's obligations hereunder.
(b) Due Execution. This Agreement has been duly executed by
Agency or its duly authorized officers or agents and constitutes a valid, binding, and
enforceable obligation of Agency.
IRV#14129 v5 _5_
(c) Governmental Approvals. Notwithstanding anything contained
herein to the contrary, the Agency makes no representations or warranties with respect to
the approvals required by any other governmental entity or with respect to approvals
hereinafter required from the City or the Agency. The Agency reserves full police power
authority over the Project and Developer aclaiowledges that the City retains such fill
police power as well. Nothing in this Agreement shall be deemed to be a prejudgment or
connnitment with respect to such hens nor to guaranty that such approvals or permits
will be issued within any particular time or with or without any particular conditions.
4. CONSTRUCTION OF THE PROJECT.
4.1 Development in Accordance with Plans. Within the times set forth in the
Schedule of Performance, Developer shall develop the Project In accordance with this
Agreement, the Scope of Development, the approved basic concept drawings approved by the
Agency prior to or concurrently with the approval of this Agreement, and the plans and permits
approved by Agency and City pursuant to this Section 4, including any changes thereto as may
be subsequently approved in writing by both Developer and Agency and, if necessary, City
(collectively"Development Plans"). As completed, the Project: (a) shall comply with all
applicable laws and ordinances of all governmental authorities, including, without limitation, all
laws and ordinances necessary to permit development of the Site as permitted by this Agreement;
(b) except as expressly provided herein, will be entirely on the Site and will not encroach upon
the land of others or overbound any easement or right-of-way; and (c) will be wholly in
compliance with any enforceable building restriction laws, however established, and will not
violate any enforceable use, easement, license, covenant, condition or other restriction affecting
the Site.
4.2 Evolution of Development Plans. Prior to or concur•ently with the
approval of this Agreement, the Agency has approved the Developer's basic concept drawings.
On or before the dale set forth in the Schedule of Performance, Developer shall submit to the
City preliminary, and thereafter final drawings and specifications for development of the Site in
accordance with the Scope of Development, the basic concept drawings, and in accordance with
the City's requirements. The tern preliminary and final drawings shall be deemed to include site
plans, building plans and elevations, grading plans, if applicable, landscaping plans, parking
plans, material pallets, a description of structural,mechanical, and electrical systems, and all
other plans, drawings and specifications. Filial 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 constriction) shall be progressively more detailed and will be
approved if the Agency determines they are a logical evolution of plans, drawings or
specifications previously approved. Developer may process alternate plans that would allow the
project to be completed with or without the inclusion of Parcel "S".
4.3 Other Governmental Permits. Developer shall, at its own expense and
before commencement oCconstruction,rehabilitation, restoration,revitalization, or development
of any buildings, structures, or other work of improvement upon the Site, secure or cause to be
secured any and all permits and approvals which may be required by City or any other
IRV#14129 v5 _6_
governmental agency affected by such construction, development or work to be performed by
Developer pursuant to the Scope of Development, including but not limited to, necessary
building permits and all approvals required under the California Environmental Quality Act
("CEQA"). Not by way of limiting 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, landscaping, signage and parking requirements except as
maybe permitted through approved variances and modifications. Developer shall not be
obligated to cornmenec construction if any such permit is not issued despite good faith effort by
Developer. Developer shall pay all normal and customary fees and charges applicable to such
permits and any fees and charges hereafter imposed by City or Agency which are standard for
and uniformly applied to similar projects in the City.
4.4 Approval by Agency. The Agency shall approve or disapprove any
submittal made by the Developer pursuant to this Agreement within thirty(30) days after such
submittal. All submittals made by Developer will note in bold type the thirty (30) 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 to be made.
After Developer resubmits the corrected submittal, Agency shall have an additional thirty(30)
days for the review of the resubmittal but if the Agency disapproves the resubmittal, then the
cycle shall repeat, until the Agency's approval has been obtained. Any approvals made by the
City relating to the design of the Project shall be deemed to also constitute approval by the
Agency.
4.5 Agency Assistance. Subject to Developer's compliance with (i) 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 Agreement in order that Developer may
obtain a final City action on such matters on or before the date set forth in the Schedule of
Performance; provided that Agency does not warrant or represent that such approval shall be
obtained.
4.6 Cost of Constriction. Developer shall bear all costs of preparing and
developing the Project and constructing all improvements thereon,including, but not limited to,
any and all costs for demolition and clearance of existing surface and subsurface improvements
inconsistent with the Project, architectural and engineering plans, preparation of the Site, costs
associated with meeting applicable seismic standards, interim and permanent financing, broker's
and leasing commissions, and fees or charges for development and building.
4.7 Constriction Schedule; Reports. Developer shall commence and complete
construction of the Project within the times set forth in the Schedule of Performance. Once
construction is commenced, Developer shall diligently pursue such construction to completion
and Developer shall not abandon such construction for more than thirty(30) consecutive days.
Developer shall keep Agency informed of the progress of construction and submit to Agency
written reports of the progress of construction when and in the form requested by Agency, but
not less than monthly.
IRV#14129 v5
4.8 Plans and Specifications. Developer shall construct the Project upon the
Site in accordance with the construction drawings, working specifications, and related
documents that shall be submitted to and approved by the Agency in advance and in writing.
4.9 Nondiscrimination During Construction. Developer, for itself and its
successors and assigns, agrees that during the rehabilitation of the Project, Developer will not
discriminate against any employee or applicant for employment because of race, color, creed,
religion, sex, marital status, age, physical or mental disability, ancestry, or national origin.
4.40 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 nonnal
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 doming the
inspection. Agency shall indemnify, defend, and hold Developer harmless from any injury or
property damage caused or liability arising out of Agency's exercise of this right of access.
4.11 Easements. Developer shall grant to Agency and City all necessary and
appropriate casements for development of public improvements consistent with the approved
Project plans, including but not limited to streets, rights of vehicular access, sidewalks, sewers,
storm drains, and water improvements.
4.12 Certificate of Completion. Upon written request by Developer, and upon
satisfactory completion of the Project, Agency shall issue to Developer a Certificate of
Completion. The Certificate of Completion shall be, and shall so state, a conclusive
determination of satisfactory completion of the Project required by this Agreement, and a full
compliance with the terms of this Agreement relating to commencement and completion of the
Project. After the date Developer is entitled to issuance of the Certificate of Completion, and
notwithstanding any other provision of this Agreement to the contrary, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of
any such ownership, purchase, lease, or acquisition) incur any obligation or liability under this
Agreement, except that such party shall be bound by the covenants that survive the issuance of
the Certificate of Completion, as set forth in the Declaration. The Certificate of Completion is
not a notice of completion as referred to in California Civil Code section 3093.
If Agency refuses or fails to famish a Certificate of Completion after written
request from Developer, Agency shall, within ten(10) days of the written request,provide the
Developer a written statement of the reasons Agency refused or failed to fitrnish a Certificate of
Completion. The statement shall also contain the Agency's opinion of the action Developer must
take to obtain a Certificate of Completion. If the Agency shall have failed to provide such
written statement within said ten (10) day period, Developer shall be deemed entitled to the
Certificate of Completion. If Agency refuses or fails to furnish the Certificate of Completion for
the reason that specific items or materials are not available or landscaping is not complete and
IRV#14129 0
the cost thereof is less than ten percent (10%) of the cost of total consideration, Agency shall
issue the Certificate of Completion upon the posting by Developer with Agency of a cash
deposit, bond or irrevocable letter of credit (in a fonn acceptable to Agency) in an amount
representing one hundred fifty percent (150%) of the fair value of the work not yet completed.
5. ACQUISITION AND DISPOSITION OF THE SITE.
5.1 Acquisition of Parcels S, Q and Rl.
(a) Negotiated Purchase of Parcel S and Leasehold Rights of Rl.
Agency shall attempt to acquire Parcel S and the leasehold interest on Parcel Rl from
their current owners by negotiated purchase;provided,however, that nothing in this
Agreement shall obligate Agency to pay more than the amount Agency has determined to
be the fair market value of the Parcels as determined by an appraisal obtained by the
Agency(provided that Developer may at its option, but shall not be required to, pay the
excess cost, if any, over such fair market value) nor to agree to any other non-standard
terns or conditions except as may be acceptable to Agency in its sole and absolute
discretion.
(h) Condemnation. If, after and despite its best efforts to do so,
Agency is unable to acquire Parcel S or the leasehold interest to Parcel RI or any portion
thereof by negotiated purchase, Agency shall conduct the necessary analysis to determine
in its sole discretion whether to attempt to acquire Parcel S or the leasehold interest to
Parcel Rl by exercise of its power of eminent domain. Agency shall have the right to
obtain a bona fide appraisal from an appraiser satisfactory to Agency. The Agency has
informed Developer that in connection with condemnation proceedings, a hearing is held
to adopt a Resolution of Necessity. The Agency cannot legally commit itself to
condemnation of properly until after this hearing is held and the testimony given at the
hearing has been considered. Accordingly, the Developer understands that the
Agency is not obligated by this Agreement to actually acquire Parcel S or the
leasehold interest to Parcel Rl, and the members of the Agency Board are free to
exercise their discretion in any manner they see fit in the event the Agency considers
condemnation. Nothing in this Agreement shall be deemed a prejudgment or
commitment with respect to condemnation, or a guarantee that such condemnation
will be undertaken. In the event Agency exercises its power of eminent domain to
acquire Parcel S or the leasehold interest to Parcel Rl, Agency shall, subject to delays
outside Agency's control, exercise reasonable diligence to complete the acquisition of the
Parcel S or the leasehold interest to Parcel Rl as soon as practicable after cor m7encement
of eminent domain proceedings. In the event Agency elects not to condemn a parcel,
Agency shall not have any liability o f any kind to Developer despite the effect of such
election on the Proj ect.
5.2 Cost Exceeding Fair Market Value. Agency will, through its own
appraisals, determine the fair market value of Parcel S and the leasehold interest to Parcel Rl.
However, during the negotiation or condemnation process a price may be established that
exceeds the fair market value as determined by the Agency. In particular, eminent domain
proceedings could result in an award of just compensation that exceeds the appraisal. Should
IRV#14129 v5
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this occur, it is possible that there would also be an award of attorneys' fees against the Agency.
Developer shall have the right to approve of any purchase price for Parcel S and the leasehold
interest to Parcel RI in excess ofAgency's appraisals and in the event Developer disapproves of
such increase, Developer shall have the right to terminate the acquisition of such parcel provided
Developer indermnifres Agency for all costs and/or claims associated with the terminated
acquisition. If Developer approves of such increased purchase price, Developer shall pay the
excess cost over such fair market value, and in the event of an award of attorneys' fees against
the Agency, Developer shall also pay such attorneys' fees, and Agency shall proceed with the
acquisition of Parcel S and the leasehold interest to Parcel Rl. If Developer fails to pay the Rill
amount of the final award of just compensation for Parcel S and the leasehold interest to Parcel
RI, Agency shall not be obligated to proceed with the acquisition of Parcel S and the leasehold
interest to Parcel R1 and Developer shall indemnify Agency for all costs and/or claims
associated with the terminated acquisition.
5.3 Sale of Parcel S. If Agency acquires Parcel S as set forth in Sections 5.1
above, Agency shall convey Parcel S to Developer acid Developer shall accept fee title to Parcel
S subject to the terms of the Grant Deed for the price ultimately paid by Agency for acquisition
of Parcel S either by negotiated purchase or eminent domain, plus costs and fees incurred in
connection thereto ("Parcel S Purchase Price"). Alternatively, the parties may agree that an
equivalent amount to the fair market value of Parcel S ($50,000) could be paid by Developer in
the forrrr of construction of public improvements to the park area shown on Exhibit "A-3."
Specific improvements to be provided are described in the Scope of Development Attachment C.
Developer shall deposit the $50,000 into escrow to be held until the Agency gives written notice
that the park improvements have been completed. Upon conveyance of Parcel S to Developer,
Parcel S shall be incorporated into the Site and developed in accordance with this Agreement.
(a) Conveyance of Parcel S to Developer upon Acquisition by
Eminent Domain.
(i) Acquisition Deposit. It is expressly agreed that Agency is
undertaking the acquisition of Parcel S as an accommodation to Developer
and is not agreeing to hear any cost therefor. Accordingly, all costs of
such acquisition including appraisal, legal, environmental, remediation,
engineering, consulting and other costs shall be borne by Developer.
Developer shall have deposited $50,000 with Agency in the escrow, which
deposit Agency shall charge its expenses against (the "Acquisition
Deposit"). Developer shall supplement the Acquisition Deposit within ten
(10) days of Agency's written request therefor to cover expenses, and shall
be entitled to return of any unexpended portion of the Acquisition Deposit
after acquisition of Parcel S. Agency shall be responsible for providing
Developer with an accounting of all sinus expended.
(ii) Order of Prejudgment Possession. Should Agency exercise
its power of eminent domain to acquire Parcel S or the leasehold interest
in Parcel Rl and provided Developer has approved in writing title
pursuait to Section 5.8 below, Agency shall, upon Developer's written
request (which written request shall specifically state that Developer is
IRV#14129 v5
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prepared to take possession of the Site within ninety(90) days), exercise
its reasonable diligence to obtain a judicial order or orders authorizing
Agency to take possession of the Site prior to the formal order of
condemnation (hereinafter"Order of Prejudgment Possession").
(iii) Close of Escrow. Notwithstanding any other provision of
this Agreement to the contrary, if at any time prior to Agency's acquisition
of Parcel S or the leasehold interest in Parcel Rl, (i) Agency deposits the
Deed and a copy of the Order of Prejudgment Possession for Parcel S or
the leasehold interest in Parcel Rl into Escrow; (ii) Agency tenders
possession of Parcel S or the leasehold interest in Parcel Rl to Developer;
(iii) Agency is diligently proceeding with the eminent domain action
seeking the rendering of a final judgment authorizing the taking; and (iv)
the Title Company commits to issuing title insurance as provided herein;
then, subject to the satisfaction or waiver of all the conditions specified in
Section 5.9, Developer shall accept such right of possession and proceed
with development of Parcel S or the leasehold interest in Parcel RI. The
date of such transfer of possession from Agency to Developer shall be
treated as the "Close of Escrow" for all purposes herein. In such event,
Agency shall exercise reasonable diligence to conclude the eminent
domain proceedings and obtain a final order of condemnation terminating
all interests in Parcel S or the leasehold interest in Parcel Rl.
(iv) Termination. If Agency elects not to exercise its power of
eminent domain to acquire all or any portion of Parcel S or the leasehold
interest in Parcel RI, Developer may elect either(i)to terminate this
Agreement pursuant to Section 10.5, or(ii) to amend the Site Plan and to
proceed with the development of the Site without such portion of the Site,
if and only if Agency and City approve such amended site plan. If such
amended site plan is not approved by the Agency and City, Developer
shall not proceed with the development of the Site and this Agreement
shall terminate.
(b) Purpose of Sale. Developer agrees to develop Parcel S or the
leasehold interest in Parcel Rl as part of the Site under the terms of this Agreement.
5.4 Sale of Parcel O and Parcel Rl.
(a) Parcel Q. Subject to all of the terns and conditions of this
Agreement, Agency shall convey Parcel Q to Developer for the total purchase price of
Four Htmdred Sixty Five Thousand and 00/100 Dollars ($ 465,000.00) ("Parcel Q
Purchase Price") to be paid in cash at closing.
(b) Parcel RI. Subject to all of the terms and conditions of this
Agreement, Agency agrees to convey Parcel Rl to Developer for the total purchase price
of Six Hundred FiReen Thousand and 00/100 Dollars ($615,000.00) (Parcel Rl Purchase
Price") to be paid in cash at closing.
IRV#14129 v5
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5.5 Escrow for Sale of Parcels S, O and Rl. Escrow shall be opened within
the time period specified in the Schedule of Performance. This Agreement shall constitute the
joint escrow instructions of the Agency and the Developer for the Site, and a duplicate original
of this Agreement shall be delivered to the Escrow Agent upon the opening of Escrow. Escrow
Agent is empowered to act under these instructions. Agency and Developer shall promptly
prepare, execute, and deliver to the Escrow Agent such additional escrow instructions consistent
with the terns 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.
5.6 Conditions to Close of Escrow.
(a) Developer's Conditions to Closing. Developer's obligation to
acquire the Site and to close Escrow hercunder, shall, in addition to any other conditions
set forth herein in 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:
(i) Agency acquiring Parcel S and the leasehold interest on
Parcel Rl (or an Order of Prejudgment Possession) either by negotiated
purchase or through the exercise of its eminent domain powers pursuant to
Section 5.1 above. Alternatively, Developer could give written notice to
proceed without Parcel "S".
(ii) Title shall be conveyed in a good condition subject only to
conditions and exceptions recited in the Deed and those exceptions to title
approved pursuant to Section 5.9.
(iii) Agency shall have deposited into escrow a certificate
("FMPTA Certificate") in such form as may be required by the Internal
Revenue service pursuant to Section 1445 of the Internal Revenue Code.
(iv) Developer shall have obtained evidence of financing
commitments for the acquisition and development of the Site in
accordance with Section 5.10, and Agency shall have approved such
commitments.
(v) Agency shall have deposited into escrow the executed
Grant Deed.
(vi) Developer shall have obtained from the City approvals, site
plan review, and tentative tract map approval for development of the Site.
(vii) The Agency shall have obtained possession of Parcel S and
shall be prepared to convey the same to Developer by the time set in the
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Schedule of Performance. Alternatively, Developer and Agency may have
elected to proceed without Parcel "S"by written notice.
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 5.3.
(b) Agency's Conditions to Closing. Agency's obligation to sell
Parcels R-1, Q and S 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 tune provided in the
Schedule of Performance:
(i) Agency processing and gaining all necessary approvals
from the City of the partition of Parcel Rl.
(ii) Developer's financial statements and loan commitment
shall be subject to the approval of Agency.
(iii) Developer shall have obtained tentative tract map approval.
(iv) Developer shall not be in default under any provision of
this Agreement.
(v) Developer shall have deposited into escrow the $50,000
initial deposit and, if applicable, the balance of the Parcel S Purchase
Price, Parcel Q Purchase Price and Parcel Rl Purchase Price and all other
documents required under Section 5.8.
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.
5.7 Both Parties' Conditions to Closin . Prior to the Closing Date, Developer
and Agency shall execute and deliver a certificate ("Taxpayer ID Certificate") in such form as
may be required by the IRS pursuant to Section 6045 of the Internal Revenue Code, or the
regulations issued pursuant thereto, certifying as to the description of the Site, date of closing,
gross pace, and taxpayer identification number for Developer and Agency. Prior to the Closing,
Developer and Agency shall cause to be delivered to the Escrow Agent such other items,
instruments and documents, and the parties shall take such further actions, as may be necessary
or desirable in order to complete the Closing. At the Closing neither party shall be in breach of
its obligations hereunder.
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5.8 Conveyance of the Site.
(a) 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 5.9.
(b) 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.
(c) 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 Deed; (ii) an estoppel certificate eci i lying
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 5.8 (b).
(d) 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 balance of
the Parcel O Purchase Price after deducting any Acquisition Deposit paid by Developer
to Agency before Escrow, the Parcel Q Purchase Price and Parcel Rl Purchase Price; (ii)
an estoppel certi ficate certi fying that Agency has completed all acts, other than as
specified, necessary to conveyance, if such be the fact; and (iii)payment to Escrow Agent
of Developer's share of costs as determined by the Escrow Agent pursuant to Section
5.8(b).
(e) 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 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 5.9. Following recordation, the Escrow Agent
shall deliver copies of said instruments to Developer and Agency. In addition, after
deducting any sums specified in this Agreement, the Escrow Agent shall disburse funds
to the party entitled thereto, including delivery of the Deposit to Agency.
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5.9 Title Matters.
(a) Condition of Title. Agency shall convey to Developer fee interest
in the Site, subject only to: (i) the Redevelopment Plan, this Agreement and conditions in
the Deed; (ii) current taxes, a lien not yet payable; (iii) quasi-public utility, public alley
and public street easements of record approved by Developer, which approval shall not
be unreasonably withheld; and (iv) covenants, conditions and restrictions, reciprocal
easements, and other encumbrances and title exceptions approved by Developer under
this Section. Agency shall convey title pursuant to the Deed in the form set forth in
Exhibit "F"hereto.
(b) Exclusion of Oil, Gas and Hydrocarbons. Title shall be conveyed
subject to the exclusion therefrom to the extent now or hereafter validly excepted and
reserved by the parties named in deeds, leases and other documents of record of all oil,
gas, hydrocarbon substances and minerals of every kind and character lying more than
Five hundred feet(500') below the surface, together with the right to drill into, through,
and to use and occupy all parts of the Site lying more than five hundred feet (500') below
the surface thereof for any and all purposes incidental to the exploration for and
production of oil, gas, hydrocarbon substances or minerals from the Site but, without,
however, any right to use either the surface of the Site or any portion thereof within five
hundred feet (500') of the surface for any purpose or purposes whatsoever.
(c) Agency Not to Encunber 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.
(d) 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 Perfomrance, Developer shall deliver to
Agency written notice, with a copy to Escrow Agent, specifying in detail any exception
disapproved and the reason therefor. Prior to the date in the Schedule of Performance,
Agency shall deliver written notice to Developer as to whether Agency will or will not
cure the disapproved exceptions; provided, however, that Agency shall elect to cure all
disapproved exceptions which are monetary or possessory interests. If Agency elects not
to cure the disapproved exceptions, Developer may terminate the escrow but without any
liability of Agency to Developer. if Agency so elects to cure the disapproved exceptions,
Agency shall do so on or before the Closing. Thereafter, if escrow fails to timely close
because (i)Agency has failed to cure the disapproved exceptions, or(ii) due to
exceptions not previously reported but which arise due to acts of Agency subsequent to
issuance of the preliminary title report, (provisions (i) and (ii) are referred to herein as
"Acts of Agency"), and if Agency cannot cure said defects within the time provided in
Section 411 and Developer elects to terminate the escrow, then Agency shall reimburse
Developer for its actual architectural and design fees for preparing its building plans
(which shall be Agency's sole liability therefore). Reimbursement shall be made thirty
(30) days after receipt of an invoice with satisfactory documentation of such expenses. In
IRV#14129 v5 -15-
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 as defined above,
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 o f action with the title
company, bonding and indemnities, reimbursement of architectural and design expenses,
and other modi flcations of this Agreement.
(e) 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.
5.10 Evidence of Financial Ca ap bility. 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 or Developer's
proposed transferee 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:
(a) Reliable cost estimates for Developer's total cost of acquiring the
Site and developing the Project (including both "hard" and "soft" costs).
(b) A complete copy of the construction loan commitment obtained by
Developer to finance the development of the Project, or such other docmmerrtation
reasonably satisfactory to the Executive Director sufficient to demonstrate that Developer
has adequate funds available and committed to finance the development of the Project.
(e) A financial statement and/or other documentation reasonably
satisfactory to the Executive Director sufficient to demonstrate that Developer has
adequate funds available and committed to cover the difference between the total
acquisition costs of the Site and development costs of the Project(subparagraph (1)
above) and the proceeds of the construction loan commitment (subparagraph (2) above).
(d) 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
IRV#14129 v5 -16-
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.
5.11 Condition of Site.
(a) 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, debris, or other structures located on, under or about
the Site. Agency makes no representation or warranty concerning the physical,
environmental, geotechlnical 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.
(b) Right to Enter Site. hademnification. Developer shall obtain the
right to enter upon the Site to conduct soils, engineering, or other tests and studies, to
perform preliminary work or Remediation Work or for any other purposes to carry out
the terns of this Agreement. Developer shall indemnify, defend and hold Agency
harmless from and against any claims, injuries or damages arising out of or involving any
such entry or activity as provided in Section 505. Any such activity shall be undertaken
only after securing any necessary permits from the appropriate governmental agencies
and providing Agency with certificates of insurance evidencing the coverages required in
Section 506.
(c) Hazardous Materials. Developer uuiderstands and agrees that in the
event Developer incurs any loss or liability concerning Hazardous Materials (as
hereinafter defined) and/or oil wells and/or underground storage tanks and/or pipelines
whether attributable to events occurring prior to or following the Closing, then Developer
may look to current or 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 oil wells 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, shareholders, 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
terns 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
IRV#14129 v5
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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
oCno 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 "hidenmified Parties") from and against
any and all Environmental Claims, Envirommnental 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
fanner or present owners of the Site or any other persons or entities, releases from liability,
indemmities, 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.
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 under any Enviromnental Law.
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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, renediation, treatment, cleanup or
abatement.
C. "Environmental Compliance Cost" means any cost or expense of
any nature whatsoever necessary to enable the Site to comply with all applicable Environmental
Laws in effect. "Environmental Compliance Cost' shall include all costs necessary to
demonstrate that the Site is capable of such compliance.
d. "Environmental Law"means any federal, state or local statute,
ordinance, rule, regulation, order, consent decree,judgment or common-law doctrine, and
provisions and conditions of permits, licenses and other operating authorizations relating 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 substances from industrial or commercial
activities, or (D)regulation of the manufacture, use or introduction into cormmerce 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 governnental
authority, the State of California, or the United States Government. The term "Hazardous
Material' includes, without limitation, any material or substance which is: (A)petroleum or oil
or gas or any direct or derivate product or byproduct thereof; (B) defined as a"hazardous waste,"
"extremely hazardous waste" or"restricted hazardous waste"under Sections 25115, 25117 or
25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division
20, Chapter 6.5 (Hazardous Waste Control Law); (C) defined as a"hazardous substance"under
Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Caipenter-
Presley-Tanner Hazardous Substance Account Act); (D) defined as a"hazardous material,"
"hazardous substance," or"hazardous waste"under Sections 255010) and (k) and 25501.1 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory); (E) defined as a"hazardous substance"under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances); (F) "used oil' as defined under Section 25250.1 of the California Health
and Safety Code; (G) asbestos; (H) listed under Chapter 11 of Division 4.5 of Title 22 of the
California Code of Regulations, or defined as hazardous or extremely hazardous pursuant to
Chapter 10 of Division 4.5 of Title 22 of the California Code of Regulations; (I) 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
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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 Enviromnental Response, Compensation
and Liability Act, 42 U.S.C. § 9601 et SeMC. (42 U.S.C. § 9601); (M) defined as "Hazardous
Material"pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq.; or
(N) defined as such or regulated by any"Superfiuid" 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 hereafter, in effect.
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.
5.12 Costs of Escrow.
(a) 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. Developer 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, however, Agency
has the right to reimbursement of its attorneys' fees from the good faith deposit made by
the Developer in the ENA.
(b) 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, reprorato the taxes in cash between the
parties.
(c) 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.
(d) Escrow Agent's Right to Retain Doemnents. Escrow Agent shall
have the right to retain all documents and/or other things of value at any time held by it
IRV#14129 v5
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•
hereunder until such compensation, fees, costs and expenses shall be paid. The
undersigned hereby jointly and severally promise to pay such sums upon demand.
5.13 Termination of Escrow.
(a) Termination. Escrow may be terminated by demand of either party
who then shall have fully performed its obligations hereunder if:
(i) 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
(ii) Escrow is not in a condition to close by the date set for
Closing; or
(iii) Either party is in breach of the terms and conditions of this
Agreement.
hi the event of the foregoing, the terminating party may, in writing, demand return
of its money, papers, or documents from the Escrow Agent and shall deliver a copy of
such demand to the non-terminating party. No demand shall be recognized by the
Escrow Agent until thirty(30) days after the Escrow Agent shall have mailed copies of
such demand to the non-terminating party, and if no objections are raised in writing to the
terminating party and the Escrow Agent by the non-terminating party within the thirty
(30) day period. In the event of such objections, the opportunity to cure shall be provided
as stated below in subsection 2 of this Section. hi 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.
(b) Opportunity to Cure. Prior to Closing, in the event any of the
Conditions to Closing are not satisfied or waived by the party with the power to approve
said Conditions (the "approving party"), then such party shall explain in writing to the
other party(the "nonapproving party") the reason for the disapproval. Thereafter, the
nonapproving party shall have an additional thirty(30) days to satisfy any such Condition
to Closing, and only if such Conditions still cannot be satisfied may the approving party
terminate the Escrow. In the event Escrow is not in a condition to close because of a
default by any party, and the performing party has made demand as stated in Subsection 1
of this Section, then upon the non-performing party's delivering its objection to Escrow
Agent and the performing party within the above thirty(30) day period, the non-
performing party shall have the right to cure the default in accordance with and in the
time provided in Section 10.1.
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5.14 Responsibility of Escrow Agent.
(a) Deposit of Funds. In accordance with Section 404, all funds
received in Escrow shall be deposited by the Escrow Agent in a special escrow account
with any state or national bank doing business in the State of California and may not be
combined with other escrow Rinds of Escrow Agent or transferred to any other general
escrow account or accounts.
(b) Notices. All communications from the Escrow Agent shall be
directed to the addresses and in the manner provided in Section 801 of this Agreement For
notices, demands and communications between Agency and Developer.
(c) 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.
(d) 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.
(e) 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 not fyiug 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.
6. SALE OR TRANSFER OF THE PROJECT.
The Developer covenants that during the term of this Agreement and prior to the
recordation of the Certificate of Completion, Developer shall not assign this Agreement or
transfer the Site or any of its interests therein except as provided in this Section. Both parties
acknowledge that it is Developer's intent as of the time of the execution of this Agreement to
complete the predevelopment of the Site up to the point of entitlement for tract map and then to
transfer the project to a merchant builder for completion. Said transfer is intended to require
Agency approval pursuant to this Section 6.
IRV#14129 v5 -22
aggregate) of the present ownership and/or control of any person or entity constituting Developer
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 Developer or its general
partners or their respective shareholders. In the event any entity constituting Developer, its
successor or the constituent partners of Developer or any successor of Developer, is a
corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital
stock of such corporation, or of beneficial interests of such trust; in the event that any entity
constituting Developer, its successor or the constituent partners of Developer or any successor of
Developer 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 Developer, its successor or the constituent partners of Developer or any
successor of 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.
6.2 Agency Approval of Transfer Required. 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, without the prior
written approval of Agency, which approval will not be unreasonably withheld, and any such
purported Transfer without such approval shall be null and void. In considering whether it will
grant approval to any Transfer by Developer, which Transfer requires Agency approval, Agency
shall consider factors such as (i) whether the completion of the Project is jeopardized; (ii)the
financial credit, strength and capability of the proposed transferee to perform Developer's
obligations hereunder; (iii) the proposed transferee's experience and expertise in the planning,
financing, rehabilitation, development, ownership, and operation of similar projects; and (iv)
whether the Transfer is for the purpose of financing the purchase or development of the Site. A
Transfer for financing purposes shall not be approved by the Agency if the loan documents do
not state that the loan proceeds must be used for the Project. Subject to the satisfaction of the r---•
conditions of this section outlined above, the Agency has allowed the Executive Director to -rOA% "
approve the future transfer of the project to K. Hovnanian Companies or its related
entities.
6.3 Release; Assumption. In the absence of specific written agreement by
Agency, no Transfer by Developer of all or any portion of its interest in the Site shall be deemed
to relieve Developer 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 Developer's
obligations hereunder shall be effective unless and until the successor party executes and delivers
to Agency an assumption agreement in a form approved by the Agency assuming such
obligations.
6.4 Relocation Assistance. Developer waives any claims that it or any entities
owned or controlled by it, and its successors and assigns may have to receive relocation
assistance or benefits arising out of the work to be performed pursuant to this Agreement.
7. INSURANCE AND INDEMNIFICATION.
IRV#14129 0 -23-
DEC-23-2002 04:17PM FROM-BURNETT DWMENT +7145440200 0 T-071 P.002/002 F-508
aggregate) of the present ownership and/or control of any person or entity constituting Developer
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 Developer or its general
partners or their respective shareholders. In the event any entity constituting Developer, its
successor or the constituent partners of Developer or any successor of Developer, is a
corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital
stock of such corporation, or of beneficial interests of such trust; in the event that any entity
constituting Developer, its successor or the constituent partners of Developer or any successor of
Developer 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 Developer, its successor or the constituent partners of Developer or any
successor of Developer is a joint venture, such transfer shall refer to the transfer of more than
twenty-five percent(250%)of the ownership and/or control of any such joint venture partner,
taking all transfers into account on a cumulative basis.
6.2 Aztnoy Approval of Transfer Required. 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, without the prior
written approval of Agency, which approval will not be unreasonably withheld, and any such
purported Transfer without such approval shall be null and void. In considering whether it Will
grant approval to any Transfer by Developer, which Transfer requires Agency approval, Agency
shall consider factors such as(i) whether the completion of the Project is jeopardized; (ii)the
financial credit, strength and capability of the proposed transferee to perform Developer's
obligations hereunder; (iii)the proposed transferee's experience and expertise in the planning,
financing, rehabilitation, development, ownership, and operation of similar projects; and(iv)
whether the Transfer is for the purpose of financing the purchase or development of the Site. A
Transfer for financing purposes shall not be approved by the Agency if the loan documents do
not state that the loan proceeds must be used for the Project. Subject to the satisfaction of the
conditions or this section outlined above, the Agency has allowed the Executive Director to �Mi4�OjJ
approve the future transfer of the project to K. Hovnanian Companies or its related
entities,
6,3 Rehease; Assumption. In the absence of specific written agreement by
Agency, no Transfer by Developer of all or any portion of its interest in the Site shall be deemed
to relieve Developer 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 Developer's
obligations hereunder shall be effective unless and until the successor party executes and delivers
to Agency an assumption agreement in a form approved by the Agency assuming such
obligations,
6A e c I*on Assistance, Developer waives any claims that it or any entities
owned or controlled by it, and its successors and assigns may have to receive relocation
assistance or benefits arising out of the work to be performed pursuant to this Agreement.
7. 1 S[1 NAP AND INDEMNIFICATION.
(RV 1114129 v4 -� -
7.1 Insurance. Prior to the entry by Developer on the Site pursuant to Section
4.10(c) and prior to the commencement of any construction by Developer, Developer and/or any
persons entering on the Site to conduct inspections or to install improvements on the Site 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:
(a) Comprehensive General Liability Insurance. A policy of
comprehensive general liability insurance written on a per occurrence basis in an amount
not less than either (i) a combined single limit of ONE MILLION DOLLARS
($1,000,000.00) or(ii) bodily injury limits of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) per person, ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, ONE MILLION DOLLARS ($1,000,000.00) products and completed
operations and property damage limits of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) per occurrence and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) in the aggregate.
(b) 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 arisipg from any
injuries or occupational diseases occurring to any worker employed by or any persons
retained by the Developer in the course of carrying out the work or services contemplated
in this Agreement.
(c) Automotive Insurance. A policy of comprehensive automobile
liability insurance written on a per occurrence basis in an amount not less than either(i)
bodily injury liability limits of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00) per person and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00)per occurrence and property damage liability limits of ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) per occurrence and ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) in the aggregate or(ii) combined single limit
liability of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00). Said policy shall
include coverage for owned, non-owned, leased and hired cars.
(d) Builder's Risk Insurance. A policy of"builder's risk" insurance
covering the full replacement value of all of the improvements to be constructed by
Developer pursuant to this Agreement.
All of the above policies of insurance, except the Builder's Risk Insurance, shall
be primary insurance and shall name Agency, City, and their officers, employees, and agents as
additional 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
canceled 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 canceled,, 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
IRV#14129 v4 -24-
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 Re ig ster, and only if they
are of a financial category Class VII or better, unless such requirements are waived by the Risk
Manager of the City ("Risk Manager") due to unique circumstances.
Developer shall provide in all contracts with contractors, subcontractors,
architects, and engineers that said contractor, subcontractor, architect, or engineer shall maintain
the same policies of insurance required to be maintained by Developer pursuant to this Section,
unless waived by the Risk Manager of Agency.
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.
7.2 Indemnification. During the period of any construction of the
improvements pursuant to this Agreement and until such time as is issued a Certificate of
Completion for the Project, Developer agrees to and shall indemnify and hold the Agency and
the City harmless from and against all liability, loss, damage, cost, or expense (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 the
acts done thereon or any errors or omissions of the Developer or its agents, servants, employees,
or contractors. 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. Agency and City shall not be responsible for any acts, errors, or
omissions of any person or entity except Agency and 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.
Notwithstanding any other provision of this Agreement, Developer's release and
indemnification as set forth in the provisions of this Article, as well as all other provisions of this
Article, shall survive the termination of this Agreement and shall continue in perpetuity.
IRV#14129 v4 -25-
{
S. RIGHTS OF HOLDERS OF APPROVED SECURITY INTERESTS IN SITE.
8.1 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 tern
"holder" shall include the holder o f any such mortgage, deed oCtrust, or other security interest, or
the lessor render a lease-back, or the grantee under any other conveyance for financing.
8.2 Limitation on Encumbrances. Notwithstanding anything to the contrary
contained in this Agreement, Developer shall not mortgage the Site or the Project or any portion
thereof or any interest therein, or enter into any other form of conveyance for financing prior to
the date that Developer has acquired fee title to the entire Site. Subsequent to or concurrently
with Developer's acquisition of fee title to the entire Site, mortgages required for any reasonable
method of financing of the construction of the improvements or acquisition of the Site 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 of same, so long as the
refinancing does not exceed the then outstanding balance of the existing financing, including any
additional costs for completion of constriction, whether direct or indirect, based upon the
estimates of architects and/or contractors. The Developer 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 5.2. Any lender approved by the Agency pursuant to Section 5.2 shall not be bound by
any material amendment, implementation, or modification to this Agreement subsequent to the
recordation of its mortgage without such lender giving its prior written consent thereto. In any
event, the Developer shall promptly notify the Agency of any mortgage, encumbrance, or lien
that has been created or attached thereto prior to issuance of a Certificate of Completion, whether
by voluntary act of the Developer or otherwise.
8.3 Developer's Breach Not 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 pernitted pursuant to subsection (b) above and made in good faith and for
value as to the Site, or any part thereof or interest therein,but unless otherwise provided herein,
the terms, conditions, covenants, restrictions, easements, and reservations of this Agreement
shall be binding and effective against the holder of any such mortgage of the Site whose interest
is acquired by foreclosure, trustee's sale or otherwise.
8.4 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
construct or complete the improvements or to guarantee such construction or completion.
Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder
to devote the Site or any portion thereof to any uses, or to construct any improvements thereon,
other than those uses or improvements provided for or authorized by this Agreement.
IRV#14129 v5
-26-
8.5 Notice of Default to Mortgagee, Deed of Trust or Other Security Interest
Holders. Whenever Agency shall deliver any notice or demand to Developer with respect to any
breach or default by Developer hereunder, Agency shall at the same time deliver a copy of such
notice or demand to each holder of record of any mortgage who has previously made a written
request to Agency 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.
8.6 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 under this Section.
No holder shall undertake or continue the construction or completion of the
improvements (beyond the extent necessary to preserve or protect the improvements or
constriction already made) without first having expressly assumed Developer's obligations to
Agency by written agreement satisfactory to Agency with respect to the Site or any portion
thereof in which the holder has an interest. The holder must agree to complete, in the manner
required by this Agreement, the improvements to which the lien or title of such holder relates,
and submit evidence satisfactory to the Agency that it has the qualifications and financial
responsibility necessary to perform such obligations. Any holder properly completing such
improvements shall be entitled, upon written request made to Agency, to a Certificate of
Completion from Agency.
8.7 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
constriction, Agency may, after ninety(90) days'notice to such holder and if such holder has not
exercised such option to construct within said ninety(90) day period, purchase the mortgage (or
the fee interest if the holder has foreclosed), upon payment to the holder of an amount equal to
the sum ofthe following:
IRV#14129 v5 -27-
(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 o rthe 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 bad all such arnormts become part orthe mortgage debt
and such debt had continued in existence to the date of payment by the Agency.
hi the event that the holder does not exercise its option to constrict 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 constricted 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:
(a) 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.
(b) 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.
(c) Third, to reimburse Agency, on its own behalf and on behalf of the City,
for all costs and expenses actually and reasonably incurred by Agency, in connection
with its efforts assisting the holder in selling the holder's interest in accordance with this
Section.
(d) Fourth, any balance remaining thereafter shall be paid to Developer.
8.8 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
IRV#14129 v5 _28_
9 •
mortgage has not exercised its option to complete the development, Agency may cure the default
prior to completion of any foreclosure. In such event, Agency shall be entitled to reimbursement
front 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, with power of sale, 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 providcd 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 affinnative obligations (by the payment of
money, construction or otherwise) with respect to the Site in the event of its enforcement
of its lien. Agency may enforce its lien pursuant to the provisions of Section 2924 et seq.
of the California Civil ode.
8.9 Right of the Agency to Satisfy Other Liens on the Property 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. Agency shall have the right to reimbursement from
Developer for any amount expended pursuant to this Section, which right of reimbursement shall
be secured by a lien on the Site, with power of sale, as provided in the Declaration.
9. USE OF THE SITE.
9.1 Use of the Site. Developer covenants and agrees, for itself and its
successors and assigns, that beginning on the E17ectve Date and ending on the Redevelopment
Plan Termination Date, Developer and such successors shall use and maintain the Site, or any
part thereof, pursuant to the terns of the Declaration, the Redevelopment Plan and this
Agreement; provided that, in the event of any inconsistency, the provisions of the
Redevelopment Plan shalt prevail over all others, and the provisions ofthe Declaration shall
prevail over this Agreement. Developer shall have sole and exclusive responsibility and
financial liability for any and all construction or works of improvement on the Site as may be
necessary in order to use the Site for the Project.
9.2 Use In Accordance with Redevelopment Plan; Nondiscrimination.
(a) The Developer covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the Site or any part thereo f that the Developer
and such successors and assignees, shall devote the Site only to those uses specified or
permitted in the Redevelopment Plan, for that portion of the Project within a
IRV#14129 v5 -29-
redevelopment area, and this Agreement for the periods of time specified therein. The
foregoing covenants shall run with the land.
(b) The Developer covenants by and for itself and any successors in
interest 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, handicap,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site , nor shall the Developer 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, subteen nts, sublessees or venders of the Site. The foregoing covenants
shall run with the land.
(c) The Developer shall refrain from restricting the rental, sale or lease
of the Site on the basis of race, color, creed, religion, sex, marital status, handicap,
national origin or ancestry of any person All such deeds, leases or contracts shall contain
or be subject to substantially the following nondiscrimination or nonsegrcgation clauses:
(i) In deeds: "The grantee herein covenants by and for himself
or herself, his or her heirs, executors, administrators and assigns, and all
persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons
on account of race, color, creed, religion, sex, marital status, handicap,
national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
grantee himself or herself or any person claiming under or through him or
her, establish or pen-nit 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 nun with the land."
(ii) In leases: "The lessee herein covenants by and for himself
or herself, his or her heirs, executors, administrators and assigns, and all
persons claiming under or through him or her, and this lease is made and
accepted upon and subject to the following conditions:
"There shall be no discrimination against or segregation of any
person or group of persons on accormt of race, color, creed, religion, sex,
marital status, handicap, ancestry or national origin in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or any
person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, mmnber, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the premises herein leased."
IRV#14129 v5 -30-
M contracts: "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, handicap, ancestry or national origin in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the premises, nor shall the transferee himself or herself of any person
claim 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 of the premises."
The covenants established in this Agreement shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its
successors and assigns, the City and any successor in interest to the Site, together with any
property acquired by the Developer pursuant to this Agreement, or any part thereof. The
covenants against racial discrimination shall remain in effect in perpetuity.
9.3 Effect of Covenants. Agency is deemed a beneficiary of the terns and
provisions of this Agreement and ofthe restrictions and covenants running with the land,
whether or not appearing in the Declaration for and in its own right and for the proposes of
protecting the interests of the conummity in whose favor and for whose benefit the covenants
running with the land have been provided. The covenants in favor of the Agency shall run
without regard to whether Agency has been, remains or is au 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 Declaration.
9.4 Taxes and Assessments and Liens. Developer shall pay, when due, all real
estate taxes and assessments assessed or levied subsequent to conveyance of title. 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.
10. ENFORCEMENT.
10.1 Defaults, Right to Cure and Waivers. Subject to any Enforced Delay, the
occurrence of any one or more o f the following events shall constitute a Developer Default
hereunder if, after receiving written notice from Agency as provided in Section 10 below
identifying such event, Developer fails to cure said event within ten (10) days if such event is a
monetary default or Developer fails to cure said default within thirty (30) days, if such event is a
non-monetary default; provided that if such non-monetary default is not capable of being cured
IRV#14129 v5 -31-
within thirty(30) days Developer cormuences to cure said event within tell (10) days and
diligently and in good faith continues to cure the event of default:
(a) Developer fails to observe or perform any tern or provision of this
Agreement within the time set forth herein;
(b) Developer fails to timely obtain all required permits and approvals
for the Project which shall be determined in the sole and absolute discretion of Agency;
(e) Developer makes or delivers to Agency any statement, report,
financial statement, or certificate that is not true or correct in any material respect;
(d) Developer applies for the appointment of a receiver, trustee, or
custodian for any of Developer's assets;
(e) Developer files a petition under any section or chapter of the
Banl uptcy Code or any similar law or regulation;
(0 Developer makes a general assignment for the benefit of his
creditors;
(g) A petition Under any section or chapter of the Bankruptcy Code or
any similar law or regulation is filed against Developer, and such injunction, restraint, or
petition is not dismissed within thirty(30) days after the entry or filing thereof;
(h) Developer is enjoined, restrained, or in any way prevented by court
order from conducting all or any material part of its business affairs;
(i) Developer becomes insolvent or admits in writing its inability to
pay its debts as they mature; or
0) A notice of lien, levy, or assessment is filed of record with respect
to all or any of Developer's assets by the United States, or any department, agency or
instrumentality thereof, or by any state, county, municipal, or other governmental agency,
or if any taxes or debts owing at any time hereafter to any one of these becomes a lien or
encumbrance upon any of Borrower's assets or the Site and the same is not released
within thirty(30) clays after the same becomes a lien or encumbrance; provided that
Developer shall have the right to contest in good faith and by appropriate proceedings
any such lien, levy or assessment if Developer provides Agency with a bond or indemnity
satisfactory to Agency assuring the payment of such lien, levy, or assessment.
10.2 Agency Defaults. The occurrence of any one or more of the following
events shall constitute an Agency Default hereunder:
(a) Agency fails to observe or perform any term or provision ofthis
Agreement within the time set forth herein, and such fail Lire is not cured to Developer's
reasonable satisfaction within thirty(30) days after Developer gives Agency written
notice as provided in Section 9.3 below identifying such failure; provided that if said
IRv#14129 vs -32-
default cannot be cured within said thirty(30) day period, Agency shall not be in default
of this Agreement if Agency commences to cure said default within ten (10) days of said
notice and diligently and in good faith continues to cure the default;
(b) Agency makes or delivers to Developer any statement, report, or
certificate that is not true or correct in any material respect; or
10.3 Notice of Default. The non-defaulting party shall give written notice of
any Default under this Article 10 to the defaulting Party, clearly specifying the Default. Copies
o f any Notice o f Default given to the defaulting Party shall also be given to any permitted lender
requesting such notice. Any failure or delay in giving such notice or in asserting any of either
Party's 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 Pally 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.
10.4 Remedies. In addition to any other rights or remedies set forth in this
Section 10, 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 purposes of
this Agreement. Such legal actions must be instituted and maintained in the Superior Court of
the County of Riverside, State of California, or in any other appropriate court in that county.
Subject to any applicable cure periods and the general right to notice provided for in this
Agreement, upon a Default or breach of this Agreement by one Party to this Agreement, the
other Party may bring an action for damages proximately caused thereby or for specific
perforniance of this Agreement or any term or provision hereof. Developer agrees that Agency
shall be entitled to the judicial remedy of specific performance and Developer 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.
10.5 Agency's Right to Terminate. 11,the event that, prior to Developer's
commencement of construction o f the Project, Agency is not in Default tinder this Agreement,
and: (i) Developer commits a Default hereunder and fails to cure such Default within the time
provided in Sections 10.1 or 10.3; or(ii) Developer fails to obtain any of the required approvals
for the Project referenced herein; then, in such event, Agency may deliver a thirty (30) day
written notice of termination to Developer and, if the applicable Default or condition has not
been satisfied (or waived by Agency) within said time period, this Agreement shall terminate and
neither Party shall have any further rights against or liabilities to the other(except Agency
reserves its rights under Section 10.4 if Developer is in Default).
10.6 Rights and Remedies are Cumulative. Except as otherwise expressly
stated in this Agreement, the rights and remedies of the parties hereto 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 salve or different times, of any other rights or remedies for the same Default or any
other Default by another Party.
1RV#14129 v5 -33-
• •
10.7 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 speci tic 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.
10.8 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 arnended. Attorney's fees shall include attorney's lees 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.
11. MISCELLANEOUS.
11.1 Notices. Formal notices, demands, and communications between Agency
and Developer shall be sufficiently given if(i) personally delivered; (ii) dispatched by registered
or certified mail, postage prepaid, return receipt requested; or(iii) by Federal Express or another
reputable overnight delivery service, to the following addresses:
If to Agency: Community Redevelopment Agency of the
City of Palm Springs, California
P.O. Box 2743
Palm Springs, California 92263-2743
3200 Tahquitz Canyon Way
Palm Springs, California 92262
Attn: Executive Director
With a copy to: Burke, Williams & Sorensen, LLP
18301 Von Karman Avenue, Suite 1050
Irvine, California 92612
Attn: David J. Aleshire, Esq.
IRV#14129 vs -34-
If to Developer: Burnett Development Corporation
1300 Bristol Street North, Suite 200
Newport Beach, CA 92660
Attn: Peter Laird, Esq.
With a copy to: Burnett Development Corporation
1300 Bristol Street North, Suite 200
Newport Beach, CA 92660
Attn: Tom LeBeau
All notices shall be deemed to be received as of the earlier of actual receipt by the
addressee thereof; the expiration of forty-eight (48) hours after depositing in the United States
Postal System in the marmer described in this Section; or twenty-four(24) hours after delivery to
Federal Express or another overnight delivery service. Such written notices, demands, and
communications may be sent in the same manner to such other addresses as a party may from
time to time designate by mail.
11.2 Applicable Law and Form The laws of the State of California shall
govenm the interpretation and enforcement of this Agreement.
11.3 Acceptance of Service of Process. In the event that any legal action is
commenced by Developer against Agency, service of process on Agency shall be made by
personal service upon the Executive Director or Secretary of Agency, or in such other manner as
may be provided by law. In the event that any legal action is commenced by Agency against
Developer, service ofprocess 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.
11.4 Conflicts of Interest. No member, official, or employee of Agency shall
have any personal interest, direct or indirect, in this Agreement nor shall any such member,
official, or employee participate in any decision relating to this Agreement which affects his
personal interests or the interests of any corporation, partnership, or association in which he is,
directly or indirectly, interested.
11.5 Nonliability of Agency Officials and Employees. No member, official,
employee, or consultant of Agency or City shall be personally liable to Developer, or any
successor in interest ofDeveloper, in the event of any default or breach by Agency or for any
amount which may become due to Developer or to its successor, or on any obligations under the
terms of this Agreement.
11.6 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; governmental
restrictions or priority litigation; unusually severe weather; inability to secure necessary labor,
materials or tools; acts of the other party; acts or the failure to act of a public or govermnental
IRV#14129 v5 -35-
agency or entity (except that acts or the failure to act of City or Agency shall not excuse
performance by Agency unless the act or failure is caused by the acts or omissions of
Developer); or any other causes beyond the reasonable control or without the fault of the party
claiming an extension of time to perform. In the event of such a delay (herein "Enforced
Delay"), the party delayed shall continue to exercise reasonable diligence to minimize the period
of the delay. An extension of time for any such cause shall be limited to the period of the
enforced delay, and shall commence to rum from the time of the commencement ofthe 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, 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 ofperfonuance 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.
11.7 Books and Records.
(a) Maintenance of Books and Records. Developer shall prepare and
maintain all books, records, and reports necessary to substantiate Developer's compliance
with the terns o f this Agreement or reasonably required by the Agency.
(b) Right to Inspect. The Agency 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 Developer pertinent to the purposes of this Agreement. Said right of
inspection shall not extend to documents privileged under attorney-client or other such
privileges.
11.8 Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made by written instrument or endorsement
thereon mid in each such instance executed on behalf of each party hereto.
11.9 Merger of Prior Agreements and Understandings. This Agreement and all
documents incorporated herein contain the entire understanding among the parties hereto relating
to the transactions contemplated herein and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged herein and shall be
of no further force or effect.
11.10 Binding Effect of Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their legal representatives, successors, and assigns.
This Agreement shall likewise be binding upon and obligate the Site and the successors in
interest, owner or owners thereof, and all of the tenants, lessees, sublessees, and occupants of
such Site.
1 1.11 Assurances to Act in Good Faith. Agency and Developer agree to execute
all documents and instruments cord to take all action and shall use their best efforts to accomplish
IRV#14129 v5 -36-
the purposes of this Agreement. Agency and Developer shall each diligently and in good faith
pursue the satisfaction of any conditions or contingencies subject to their approval.
11.12 Severability. Wherever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable law. If, however,
any provision of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
11.13 Interpretation. The terns ofthis 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.
11.14 Entire Agreement Waivers and Amendments. This Agreement integrates
all of the terns and conditions mentioned herein, or incidental hereto, and this Agreement
supersedes all negotiations and previous agreements between the parties with respect to all or
anypartoftlresubjectmatter]hereof. All waivers ofthe provisions ofthisAgreement, 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.
11.15 Time for Acceptance of Agreement byAgency. 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 fin-ther 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 ofthe Agency to authorize, execute and deliver the Agreement in
accordance with this Section.
11.16 CounterI arts. This Agreement maybe executed in counterparts, each of
which shall be deemed to be an original, and such counterparts shall constitute one and the same
instrument.
11.17 Integration. This Agreement and other documents expressly incorporated
herein by reference contain the entire and exclusive understanding and agreement between the
parties relating to the matters contemplated hereby and all prior or contemporancolas
negotiations, agreements, understandings, representations and statements, oral or written, are
merged herein and shall be of no further force or effect.
11.18 Exhibits. Exhibits "A" through "IT", inclusive, attached hereto, are
incorporated herein as if set forth in full.
IRV#14129 v5 -37-
0
IN WITNESS WHEREOF the Agency and Developer have executed this Agreement as
of the date first written above.
"Agency"
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, a public
body, corporate and politic
y:
Assistant ecretary +J,,_ {�3 Chairman
APPROVED AS TO FORM:
BURKE, WILLIAMS & SORENSEN, LLP
1•n111V'1 1. , P.r,ln t<i 66k Cb�'ASS'inVGd�l�°3LIEIS i;i ��ls�a
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Agency Counsel D� - L�Qv ti� P At l?(I
(Corporations require two notarized signatures: One from "Developer"
each of the following: A.Chairman of Board,President or
any Vice President;AND B. Secretary,Assistant Secretary, BURNETT DEVELOPMENT
Treasurer,Assistant Treasurer,or Chief Financial Officer)
CORPORATION, a California corporation
B
Signature( otarized)
P t N e and Title
By: .
/ Signahue(Notarized) 0.
1/l�M43 4G A�1 �. U �rG
Print Name and Title
IRV#14129 v5
-38-
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
�,l State of California �31
County of 4-5ss.
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On , before me, �NJ¢ / '/• �H 3G/ c� �I
Dale Name and i ne of Officer(e g "Jane DcVHolar,Puble")
personally appeare,�5y�/110- t91V,677— 9 —Ihdl q-s 6:. zE&-Rq ,l
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Xpersonally known to me h's
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evidence
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to be the person(s) whose name(s) ra/are
subscribed to the within instrument and �
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acknowledged to me that hells /they executed
INrII the same in I;i ,�Hc�e /their authorized
LINDA M, WILLIAMS capacity(ies), and that by I�isFHer/their 0I
Commission# 1379907 signature(s) on the instrument the person(s), or `?
<� 1-alp Notnry Public • California > the entity upon behalf of which the person(s) �I
Orange County acted, executed the instrument.
My Comm.ExpiresOct22,2006 ff%
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WITNESS my hand and official seal.
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Place Notary Seal AboveIf Signature of Notary Pub1 c �•
OPTIONAL
F Though the information below is not required by law, it may prove valuable to persons relying on the document 'I
(I and could prevent fraudulent removal and reattachment of this form to another document. �p
�j Description of Attached Document ,q Ik11
Tide or Type of Document:
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Document Date: ����� C�C) :2-- Number of Pages: `� I
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I � Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer )I
Signer's Name:
❑ Individualq/ )
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, Corporate Officer—Title(s): J
❑ Partner—❑ Limited ❑ General (I
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t` Signer Is Representing f,
01999 NaLanal Notary Assoclatmn•9350 De Soto Ave.,PO Box 2402•ChalswoJh,CA 913132402•wwwnallonalnolaryorg Prod No 5907 Reorder CA Toll-Free 1 800-876 6827
EXHIBIT "A-l"
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IRV#14129 V4
A-1
EXHIBIT "A-2"
LEGAL DESCRIPTION OF THE SITE
That certain real property located in the City of Palm Springs, County of Riverside, State
of California described as follows:
PARCELS:
To be provided prior to close of Escrow.
PARCEL O AND R-1:
A PORTION OF LOT 9 OF TRACT NO. 17642-1 IN THE CITY OF PALM
SPRINGS, COUNTY OF RIVERSIDE, CALIFORNIA, AS PER MAP ON FILE
IN BOOK 122 PAGES 88, 89 AND 90 OF MAPS, IN THE OFFICE OF THE
RECORDER OF SAID COUNTY, BEING ALSO SHOWN AS NOT A PART
OF TRACT NO. 26943-1 IN SAID CITY OF PALM SPRINGS, AS PER MAP
ON FILE IN BOOK 235 PAGES 84 AND 85 OF MAPS IN THE OFFICE OF
SAID RECORDER, TOGETHER WITH THE NORTHERLY 731.00 FEET OF
LOT 1 OF SAID TRACT NO. 17642-1 AND TOGETHER WITH THE
NORTHERLY 731.00 FEET OF PARCEL 2, DESCRIBED IN DOCUMENT
RECORDED APRIL 25, 1996 AS INSTRUMENT NO. 148930, RECORDS OF
SAID COUNTY AND TOGETHER WITH THAT PORTION OF LOT "C" OF
SAID TRACT NO. 17642-1 DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 2;
THENCE NORTH 000 15'14" EAST 582.00 FEET ALONG THE WESTERLY
LINE OF SAID LOT "C" TO THE NORTHWEST CORNER THEREOF;
THENCE SOUTH 89046'28"EAST 1,112.00 FEET ALONG THE
NORTHERLY LINE OF SAID LOT "C" TO A POINT FROM WHICH THE
NORTHWEST CORNER OF LOT 6 OF SAID TRACT NO. 17642-1 BEARS
SOUTH 00015'14"WEST 50.00 FEET, BEING THE WESTERLY LINE OF
LAND DESCRIBED IN DOCUMENT RECORDED MARCH 16, 1992 AS
INSTRUMENT NO. 87943, RECORDS OF SAID COUNTY;
THENCE SOUTH 00015'14" WEST 50.00 FEET TO THE NORTHWEST
CORNER OF SAID LOT 6, BEING ALSO A POINT IN THE NORTHERLY
LINE OF SAID LOT 9;
THENCE NORTH 89046'28" WEST 1062.00 FEET ALONG SAID
NORTHERLY LINE OF LOT 9 TO THE NORTHWEST CORNER THEREOF;
THENCE SOUTH 00015'14"WEST 532.00 FEET TO THE NORTHEAST
CORNER OF SAID PARCEL 2;
THENCE NORTH 89046'28" WEST 50.00 FEET TO THE POINT OF
BEGINNING
IRV#14129 v5 A 2
EXHIBIT 'B"
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE TIME FOR REFERENCE
PERFORMANCE
1. Developer executes and delivers December 18, 2002
Agreement to Agency
2. Agency approves Developer's Basic Concurrently with execution
Concept Drawings pursuant to Section of Agreement
3. Agency holds public hearing on December 18, 2002
Agreement
4. Developer prepares and submits to City Developer is already
tentative tract map processing
5. Agency makes offer to acquire Parcel S Agency is already
and leasehold interest on Parcel RI and negotiating
thereafter negotiates in good faith
6. Agency contracts to acquire all parcels Within 60 days after
of the Site or holds hearing to consider Agency makes offer to
adoption of a Resolution of Necessity acquire
and determines whether or not to
initiate condemnation
7. If Agency elects to pursue Within 30 days after
condemnation, Agency files action Agency adopts Resolution
of Necessity
8. Agency obtains order of immediate Within 30 to % days of
possession for Parcel S or the leasehold filing of action, depending
interest on Parcel RI on whether the property is
unoccupied or occupied, or
such later time as the court
may order
9. Open Escrow Within two (2) weeks after
execution of DDA by
Agency
IRV NI4129 v5 B-1
10. Developer provides Agency with By twelve (12)months
evidence of financial capability or after close of escrow
provides such evidence for proposed
transferee merchant builder
11. Agency delivers to Developer Within 30 days after
Preliminary Title Report Agency execution of DDA
12. Developer approves or disapproves title Within 15 days after
exceptions delivery of Preliminary
Title Report to Developer
13. Agency delivers notice to Developer as Within 15 days after
to whether it will cure disapproved receipt of Developer's
exceptions notice
14. Developer submits Site Plan, Planned Within 45 days after
Development District, Subdivision opening of escrow
Map, and other discretionary actions
for entire Site for City approval
rAgency
approves or disapproves Plamied Within ten(10)months of
lopment District, and Subdivision close of escrow
loper prepares and submits Site Within one (1) years of
for park improvements pursuant to close of escrow
raph 5.3
cy approve (or disapprove) Within times set forth in
inary and, thereafter, final Section 4.4
ngs and specifications, and if
roves, Developer revises and
its preliminary or final drawings
18. Escrow Agent gives notice of fees, One (1)week prior to
charges, and costs to close escrow Closing
IRV#14129 v5 B-2
19. Deposits into escrow by Agency:
a) Executed Deeds On or before 1:00 p.m. on
the last business day
preceding the Closing Date
c) Payment of Agency's share On or before 1:00 p.m. on
of Escrow Costs. the last business day
preceding the Closing Date
d) Taxpayer ID Certificate Prior to Closing Date
e) FIRPTA Certificate Within 15 days after
opening
20. Deposits into escrow by Developer:
a) Purchase Price On or before 1:00 p.m. on
the last business date
preceding the
Closin Date
d) Payment of Developer's On or before 1:00 p.m. on
Share of Escrow Costs the last business date
preceding the Closing Date
e) Certificates evidencing Prior to closing, site
insurance preparation or construction
f) Taxpayer ID Certificate Prior to Closing Date
21. Close of escrow for the Site As soon as possible, but
recordation and delivery of documents not later than 30 days after
Agency acquires
possession of Parcel S and
RI
22. Developer completes construction of Within eighteen (18)
park improvements months from close of
escrow
23. Developer completes construction on January 1, 2005
the Site.
IRV#14129 v5 B 3
24. Agency issues Release of Construction Within 30 days of written
Covenants for the Site. request by Developer, and
Developer's satisfactory
completion of all
improvements on the Site.
It is understood that this Schedule of Performance is subject to all of the terns and conditions of the text of
the Agreement. The summary of the items performance in this Schedule of Performance is not intended to
supersede or modify the more complete description in the text;in the event of any conflict or inconsistency between
this Schedule of Performance and the text of the Agreement,the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by written
agreement signed by both the Developer and the Agency. The Executive Director of Agency shall have the
authority to approve extensions of time without action of the Board of Directors of Agency not to exceed a
cumulative total of 180 days.
IRV#14129 v5 B-4
EXHIBIT "C"
SCOPE OF DEVELOPMENT
1. PRIMARY PROJECT COMPONENTS
The proposed project involves the development of the approximate 46.2 acre project site
with 176 residential units and five (5)recreation/open space lots. The open space lots are
located throughout the project site (refer to Exhibit 3). The project also includes one (1)
lot (Lot 178) to be used by the Desert Water Agency for a well site and two (2) lots
containing private streets. The project proposed by the applicant involves the following
primary components which are described below:
• Approval of a Planned Development District (PD-269) in lieu of a change of zone
• Approval of Tentative Tract Map No. 30058
• Construction of park improvements on property to be designated by Agency
APPROVAL OF A PLANNED DEVELOPMENT DISTRICT APPLICATION
The Palm Springs Zoning Code designates the site as PD 116A. As previously noted, the
project site has a General Plan land use designation of CDL 8 (Density Controlled, 8
units per acre). In order to provide zoning which conforms to the Tentative Tract Map
30058, a planned development application is required. Per Section 94.03.00 of the City's
zoning code, "The plamied development district is designed to provide various types of
land use which can be combined in compatible relationship with each other as part of a
totally planned development. It is the intent of this district to insure compliance with the
general plan and good practices while allowing certain desirable departures from the
strict provisions of specific zone designations."
With 176 single-family residential lots on 46.2 acres of land, Tract 30058 proposes a
density of 3.8 units per acre. This is less than half the density allowed by the general
plan. Proposed lots consist of 88 minimum 5,500 s.f. lots (50-feet wide by 110-deep) and
88 minimum 7,700 square foot lots (70-feet wide by 110-feet deep). Proposed minimum
setbacks include a 5-foot front setback to side entry garage, a 20-foot front setback to
front entry garage, a 15-foot front setback to residence, a 5-foot side setback and a 15-
foot rear setback. The project also provides 3.9 acres of open space (includes 2.6 acres
which are turfed detention basins), which represents 8.4 percent of the project site.
TENTATIVE TRACT MAP
The project proposed by the applicant includes Tentative Tract Map (TTM) 30058. The
TTM identifies the location of the proposed individual lots and building pads, future
elevations, proposed infrastructure, and typical street sections.
IRV#14129 v5 C-1
PARK IMPROVEMENTS
Developer shall provide at its sole cost park improvements including design, grading,
sprinkler system, seeding and landscaping to the park area shown on Site Map (Exhibit
"A-2."
2. PROJECT DEVELOPMENT FEATURES
The following discussion provides a description of the main components of the proposed
proj cet.
RESIDENTIAL AND OPEN SPACE
The proposed project includes approximately 33.8 acres of residential development, 1.2
acres of recreation/open space, a 0.6 acre well site, 2.6 acres with detention basins which
also allow passive recreation uses, and 8.0 acres of private street. Table 1 provides a
statistical summary of the proposed land uses, as well as development features. As
shown on Table 1, the project would subdivide the project site into 176 single-family
residential lots including 5,500-square foot minimum lots (88) lots and 7,700-square-foot
minimum lots (88). The maximum lot size proposed is 15,286 square feet. It is
estimated that approximately 75 percent of the homes would be single-story and 25
percent would be two-story. The actual mix will be detennined during the final design
stages of the proj cet.
TABLE 1
LAND USE STATISTICAL SUMMARY
Land Use Lots Minimum Setbacks Total Acres
Residential
Front: 20-feet to garage
5-feet to house
Single-family residential units 176 5-foot side entry garage 33.8
Side: 5-feet
Rear: 15-feet
Recreation/Open Space
Recreation Facility' 1 NA 08
Open Space/Landscaped Areas 4 N/A 0.4
Basin/Turfed Pay Area` 4 NA 2.6
Streets 2 NA 8.0
Well Site(Desert Water Agency) 1 NA 0.6
TOTAL 188 NA 46.2
a. There is one active recreation area(Lot 177)proposed for project residents which would include a pool, spa, sun deck,
barbeque area and turf field.
b. Open space lots include two entry areas and landscaped areas(refer to Exhibit 3).
c. Lots accommodate detention basins and are turfed to allow passive recreation activities.
Source: Burnett Companies,October 2002
IRV#14129 v5 C-2
There is one active recreation facility proposed as part of the project. This gated recreation
facility would feature a free-form resort-style swimming pool, spa, sun decking, shade arbors, a
barbeque area, turf fields and a restroom building with showers and drinking fountains. The
recreation area will be owned and maintained by the Homeowners Association. Additionally,
four open space lots(A through D) and four basin lots (E through H)would provide passive
recreation activities.
IRV#14129 v5 C_3
EXHIBIT "Do
CERTIFICATE OF COMPLETION
FREE RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
P.O. Box 2743
Pahn Springs, California 92262
Attn: Assistant Secretary
(Space Above Line for Recorder's Use Only)
CERTIFICATE OF COMPLETION
WHEREAS, by a Disposition and Development Agreement(hereinafter referred to as the
"Agreement") dated , 2002, by and between the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public body, corporate and
politic ("Agency"), BURNETT DEVELOPMENT CORPORATION, a California corporation., a
California limited liability company("Developer"), Developer has redeveloped the real property
(the "Site"), legally described and depicted in Attachment No. 1 attached hereto and incorporated
herein by reference, according to the terms and conditions of said Agreement; and
WHEREAS, pursuant to Section of the Agreement, promptly after completion of
all constriction work to be completed by Developer upon the Site, and upon request by
Developer, Agency shall furnish Developer with a Certificate of Completion in such form as to
permit it to be recorded in the Official Records of the County of Riverside; and
WHEREAS,the issuance by Agency of the Certificate of Completion shall be conclusive
evidence that Developer has complied with the terms of the Agreement pertaining to the
redevelopment of the Site; and
WHEREAS, Developer has requested that Agency furnish Developer with the Certificate
of Completion; and
WHEREAS, Agency has conclusively detennined that the development of the Site has
been satisfactorily completed as required by the Agreement; and
WHEREAS,the Agreement provided for certain covenants to run with the land, which
covenants were incorporated in the grant deed conveying the Site to Developer and a Declaration
of Covenants, Conditions and Restrictions (the 'Declaration");
IRV#14129 v5 D-I
NOW, THEREFORE:
1. As provided in the Agreement, Agency does hereby certify that redevelopment of
the Site has been fully and satisfactorily performed and completed, and that such redevelopment
is in full compliance with said Agreement.
2. This Certificate of Completion shall not constitute evidence of Developer's
compliance with the Disposition and Development Agreement and Declaration, the provisions of
which shall continue to run with the land.
3. This 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 construction work on the Site, or any part thereof.
Nothing contained herein shall modify in any way any other provision of said Agreement.
4. This Certificate is not a Notice of Completion as referred to in California Civil
Code Section 3093.
5. 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, Agency has executed this Certificate as of this day of
, 200 .
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, a public
body, corporate and politic
By:
Executive Director
IRV#14129 v5 D-2
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
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]
IRV#14129 v5 D-3
EXHIBIT "E"
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Redevelopment Agency
of the City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
(For Recorder's Use Only)
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
("Declaration") is made this day of 2002 by and among BURNETT
DEVELOPMENT CORPORATION, a California corporation ("Declarant"), THE
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate and politic ("Agency"), and THE CITY OF PALM
SPRINGS, a municipal corporation ("City").
RECITALS:
1. Declarant is the fee owner of that certain real property located in the City of Palm
Springs, County of Riverside, State of California more particularly described on
Exhibit "1" attached hereto and incorporated herein by reference ("Site").
2. The Site is in close proximity the Merged Proj eet Area No.I ("Proj ect Area")
specifically described in the Redevelopment Plan for the Project Area which was
approved and adopted by the City Council of the City of Pahn Springs by
Ordinance No. 1584 on May 31, 2000, and as subsequently amended by means of
ordinances of the City Council.
3. 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 plarming
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 or City's interest in real property most directly affected by this
Agreement is depicted in Exhibit "2" attached hereto and incorporated herein by
reference ("Public Parcel").
IRV#14129 v5 E-1
4. The purpose of the Redevelopment Plan is to remedy and alleviate blighted
conditions associated with undeveloped and unproductive land, inadequate street
and circulation systems, unsuitable land mixes, inadequate or total lack of public
street improvements, and the existence of substandard and incompatible uses and
structures. The redevelopment and restriction of the Site in accordance with the
Redevelopment Plan will promote the utility and value of the Site and of the
Project Area, for the benefit of its future owners and the entire city.
5. Pursuant to the Redevelopment Plan, Declarant has entered into a Disposition and
Development Agreement with the Agency which Agreement places certain
restrictions on the Site. Pursuant to the City's development requirements, the City
has approved or will approve a site plan for the development of the Site ("Site
Plan"), which plan places certain restrictions on the Site. Said Redevelopment
Plan, Disposition and Development Agreement and Site Plan (i) are on file and
may be reviewed in the office of the executive director of the Agency ("Executive
Director"), in the Palm Springs City Hall and (ii) are each incorporated herein by
this reference and made a part hereof as though fully set forth herein.
6. Declarant, the Agency and City intend, in exchange for the entering into the
Disposition and Development Agreement by the Agency and the approval of the
Site Plan by City, that the Declarant, its successors and assigns hold, sell, and
convey the Site subject to the covenants, conditions, restrictions, and reservations
set forth in this Declaration and that the Agency and City shall have the right and
power to enforce the covenants, conditions, restrictions, and reservations as
provided herein.
7. Declarant desires to establish and grant certain covenants, conditions and
restrictions upon the property for the benefit of the Agency and the City and their
respective successors and assigns for the purpose of enhancing and protecting the
value, desirability and attractiveness of the Site and effectuating the
Redevelopment Plan. Such covenants, conditions and restrictions shall run to the
benefit of the Public Parcel and bind the Site, the Declarant and its successors and
assigns.
NOW, THEREFORE, the Declarant, Agency and City declare, covenant and agree, by
and for themselves, their heirs, executors 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, which covenants are
established expressly and exclusively for the use and benefit of the Agency and City.
IRV#14129 v5 E-Z
TERMS AND CONDITIONS
1. COVENANTS, CONDITIONS AND RESTRICTIONS
1.1 General. The Site shall be developed and used only as permitted by the
restrictions contained in the Site Plan, Redevelopment Plan and Disposition and Development
Agreement.
1.2 Maintenance Agreement. Declarant, for itself and its successors and
assigns,hereby covenants and agrees to be responsible for the following:
(a) Maintenance and repair of the Site and all related on-site
improvements, casements, rights-of-way and landscaping thereon at its sole cost and
expense, including, without limitation, buildings, parking areas, lighting, signs and walls,
in a first class condition and repair, fiee 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 over the
Site. 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.
(b) Maintenance of the Site in such a mamier as to avoid the
reasonable determination of a duly authorized official of the Agency or 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.
1.3 Parking and Driveways. Declarant shall be responsible for assuring that
the driveways and traffic aisles on the Property 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 Property, including delivery vehicles, vehicles of employees
and vehicles of persons with business on the Property shall park solely on the Property and shall
not park on streets or adjacent properly.
1.4 Compliance With Ordinances. Declarant shall comply with all
ordinances,regulations and standards of the City and Agency applicable to the Site. Declarant
shall comply with all rules and regulations of any assessment district of the City with jurisdiction
over the Site.
1.5 Outside Storage. No storage of any kind shall be permitted outside the
building(s) located on the Site except for trash or other storage in any outside storage areas
approved by the Agency or as required by law. Adequate trash enclosures shall be provided and
screened. Locations of such areas and types of screening must be approved by the Executive
Director. Gates for trash storage area shall be kept closed at all times except when in actual use.
IRv#14129 v5 E-3
•
1.6 Buildings and Equipment. Any constriction, repair, modification or
alteration of any buildings, equipment, structures or improvements on the Site shall be subject to
the following restrictions:
(a) All mechanical and electrical fixtures and equipment to be
installed on the roof or on the ground shall be adequately and decoratively screened. The
screening must blend with the architectural design of the buildhng(s). Equipment on the
roof must be at least six (6) inches lower than the parapet line and adequately screened.
All details and materials of said screening shall be approved by the Executive Director
prior to installation.
(b) The texture,materials and colors used on the buildings, as well as
the design, height, texture and color of fences and walls shall be subject to the approval
of the Executive Director.
(c) Signs on the Site shall conform to the standards and ordinances of
the City and to a uniform design theme approved by the City. Any signs installed on the
Site shall conform to said design scheme and shall be approved by the Executive Director
prior to installation.
(d) Lights installed on the building shall be a decorative design. No
lights shall be permitted which may create any glare or have a negative impact on the
residential areas, if any, existing around the Site. No light stand on any portion of the
Site shall be higher than fifteen (15) feet. The design and location of any lights shall be
subject to the approval of the Executive Director.
(e) No fences, signs, gas pumps, or any other similar facilities shall be
constructed or provided on the Site without the prior approval of the Executive Director.
1.7 Public Agency Rights of Access. Developer hereby grants to the Agency,
the City and other public agencies the right, at their sole risk and expense,to enter the Site or any
part thereof at all reasonable times with as little interference as possible for the purpose of
construction, reconstruction, relocation, maintenance, repair or service of any public
improvements or public facilities located on the Site. Any damage or injury to the Site or to the
improvements constricted thereon resulting from such entry shall be promptly repaired at the
sole expense of the public agency responsible for the entry.
2. ENFORCEMENT
2.1 Termination. No breach of this Declaration shall entitle any party to
cancel, rescind or otherwise terminate this Declaration, or excuse the performance of such party's
obligations hereunder; provided that, however, this limitation shall not affect in any manner any
other rights or remedies which the parties may have by reason of such breach.
2.2 Injunction. Notwithstanding anything contained herein to the contrary, in
the event of any violation or threatened violation of any of the terns, covenants, restrictions and
conditions contained herein, in addition to the other remedies herein provided, the parties hereto
IRv#14129 v5 E-4
shall have the right to enjoin such violation or threatened violation in a court of competent
jurisdiction.
2.3 Other Rights of Agency and City. In the event of any violation or
threatened violation of any of the provisions of this Declaration, then in addition to,but not in
lieu of, any of the rights or remedies the Agency and City may have to enforce the provisions
hereof,the Agency and City shall have the right (i) to enforce the provisions hereof as a party
hereto and as an owner of the Public Parcel, and(ii) to withhold or revoke, after giving written
notice of said violation, any building permits, occupancy permits, certificates of occupancy,
business licenses and similar matters or approvals pertaining to the Site or any part thereof or
interests therein as to the violating person or one threatening violation.
2.4 Failure to Perform; Lien. If any owner of the Site defaults on the
performance of any of its obligations hereunder, the Agency or City, their employees, contractors
and agents may, at their sole option, and after making reasonable demand of the owner of the
Site that it cure said default, enter onto the Site for the purpose of curing the default. In making
an entry, the Agency or City shall give the owners of the Site or their representative, reasonable
notice of the time and mamzer of said entry and said entry shall only be at such times and in such
manners as is reasonably necessary to cant'out this Agreement. In such event,the owner of the
Site shall reimburse the Agency or City for all costs and expenses related to the curing of said
default. If the Agency or City is not reimbursed for such costs by the owner of the Site within 30
days after giving notice thereof, the same shall be deemed delinquent, and the amount thereof
shall bear interest thereafter at a rate often percent (10%) per annum until paid. Any and all
delinquent amounts, together with said interest, costs and reasonable attorneys fees shall be a
personal obligation of the owner of the Site as well as a lien and charge, with power of sale, upon
the Site. The Agency may bring an action at law against the owner of the Site to pay any such
SUMS.
2.5 The lien provided for in this Section may be recorded by the Agency as a
Notice of Lien against the Site in the Office of the County Recorder, County of Riverside,signed
and acknowledged, which Notice of Lien shall contain a statement of the unpaid amount of costs
and expenses. The priority of such lien when so established against the Site shall date from the
date such notice is filed of record and shall be prior and superior to any right, title, interest, lien
or claim which may be or has been acquired or attached to such real property at the time of
recording of such lien,but shall be junior and subordinate to matters having a priority prior to the
date such notice is recorded;provided that, however, said lien shall be subordinate to any bona
fide mortgage or deed of trust and airy purchaser at any foreclosure or trustee's sale under any
such bona fide mortgage or deed of trust as provided in Section 3.3 below. Such lien shall be for
the use and benefit of the person filing the same, and may be enforced and foreclosed in a suit or
action brought in any court of competent jurisdiction. Any such lien may be enforced by the
Agency or City by taking either or both of the following actions concurrently or separately(and
by exercising either of the remedies set forth below shall not prejudice or waive its rights to
exercise the remedy): (i)bring an action at law against the defaulting party personally obligated
to pay such lien or(ii) foreclose such lien in accordance with the provisions of Section 2924 of
the California Civil Code applicable to the exercise of powers of sale or mortgages and deeds of
trust, or any other manner pennitted by California law.
IRV#14129 v5 E_5
2.6 Upon the timely curing of any default for which such lien was recorded,
the City or Agency shall record an appropriate release of such lien, and sign any other documents
reasonably necessary to satisfy title insurance requirements, upon payment by the owner of the
Site of a reasonable fee to cover the costs of preparing and recording such release, together with
the payment of such other costs, including without limitation, reasonable attorneys fees, court
costs, interest or other fees which have been incurred.
2.7 No City Liability. The granting of a right of enforcement to the City does
not create a mandatory duty on the part of the City to enforce any provision of this Declaration.
The failure of the City to enforce this Declaration shall not give rise to a cause of action on the
part of any person. No officer or employee of the City shall be personally liable to the Declarant,
its successors, transferees or assigns, for any default or breach by the City under this Declaration.
3. ENCUMBRANCES MORTGAGE PROTECTION AND TAXES
3.1 Developer's Breach Not to Default Mortgage Lien. Declarant's breach of
any of the covenants or restrictions contained in this Declaration or the Disposition and
Development Agreement shall not defeat or render invalid the lien of any mortgage or deed of
trust made in good faith and for value as to the Site or any part thereof or interest therein,
whether or not said mortgage or deed of trust is subordinated to this Declaration or the
Disposition and Development Agreement; but, unless otherwise herein provided, the terms,
conditions, covenants, restrictions and reservations of this Declaration and the Disposition and
Development Agreement shall be binding and effective against the holder of any such mortgage
or deed of trust and any owner of any of the Site or any part thereof whose title thereto is
acquired by foreclosure, trustee's sale, or otherwise.
3.2 Amendments or Modifications to Declaration. No purported rule,
regulation, modification, amendment and/or termination of this Declaration or the Disposition
and Development Agreement shall be binding upon or affect the rights of any mortgagee holding
a mortgage or deed of trust upon the Site that is recorded in the Office of the Riverside County
Recorder prior to the date any such rule, regulation, modification, amendment or termination is
recorded in such office, without the prior written consent of such mortgagee.
3.3 Liens Subordinate. 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 the Site and any purchaser at any foreclosure or trustee'
sale (as well as any by 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 Site after the date of such foreclosure sale, shall become a lien upon the Site and
may be perfected and foreclosed as provided in Section 2.4.
3.4 Payment of Taxes and Assessments. Declarant shall pay, when due, all
real estate taxes and assessments assessed or levied against the Site. Nothing herein contained
IRV#14129 v5 E-6
shall be deemed or prohibit Declarant from contesting the validity or amounts of any tax or
assessments nor to limit the remedies available to Declarant with respect thereto.
4. COVENANTS TO RUN WITH THE LAND
4.1 Covenants Running With the Land. This Declaration is designed to create
equitable servitudes and covenants appurtenant to the Public Parcel and running with the Site.
Declarant hereby declares that all of the Site shall be held, sold, conveyed, encumbered,
hypothecated, leased, used, occupied and improved subject to the covenants, conditions,
restrictions and equitable servitudes, all of which are for the proposes of uniformly enhancing or
protecting the value, attractiveness and desirability of the Site and effectuating the
Redevelopment Plan. The covenants, conditions,restrictions,reservations, equitable servitudes,
liens and charges set forth herein shall run with the Site and shall be binding upon all persons
having any right, title or interest in the Site, or any part thereof, their heirs, successive owners
and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest
therein; shall inure to the benefit of the Agency, the City and their successors and assigns and
successors in interest; shall be binding upon Declarant, its successors and assigns and successors
in interest; and may be enforced by the Agency and City.
4.2 Agency and Declarant hereby declare their ruiderstanding and intent that
the burden of the covenants set forth herein touch and concern the land in that Declarant's legal
interest in the Site is rendered less valuable thereby. Agency and Declarant 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 Site by the citizens of the City
and by furthering the public purposes for which the Agency was fornied.
4.3 Agreement Among Declarant, Agency and City. The Declarant, in
exchange for entering the Disposition and Development Agreement by the Agency and granting
of the Site Plan by City, hereby agrees to hold, sell, and convey the Site subject to the covenants,
conditions, restrictions and reservations of this Declaration. Declarant also grants to the Agency
and City the right and power to enforce the covenants, conditions, restrictions and reservations
contained in this Declaration against the Declarant and all persons having any right, title or
interest in the Site, or any part thereof, their heirs, successive owners and assigns.
5. USE IN ACCORDANCE WITH REDEVELOPMENT PLAN;
NONDISCRIMINATION.
5.1 The Developer covenants and agrees for itself, its successors, its assigns,
and every successor in interest to the Site or any part thereof that the Developer and such
successors and assignees, shall devote the Site only to those uses specified or permitted in the
Redevelopment Plan, if the Site is within a redevelopment area, and this Agreement for the
periods of time specified therein. The foregoing covenants shall run with the laud.
The Developer covenants by and for itself and any successors in interest 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, handicap,national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Site ,nor shall the Developer itself
IRv#14129 vs E_7
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. The foregoing covenants shall
run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the Site on the
basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of
any person All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, adrninistrators 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,
handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself
or any person claiming under or through him or her, establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
land herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions:
"There shall be no discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry
or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any
person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the
premises herein leased."
(c) In contracts: "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, handicap, ancestry or national origin in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or
herself of any person claim under or through him or her, establish or pen-nit 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 premises."
The covenants established in this Agreement shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its
successors and assigns, the City and any successor in interest to the Site, together with any
IRV#14129 v5 E-8
property acquired by the Developer pursuant to this Agreement, or any part thereof. The
covenants against racial discrimination shall remain in effect in perpetuity.
6. MISCELLANEOUS
6.1 Modification. This Declaration may not be modified, terminated or
rescinded, in whole or in part, except by a written instrument duly executed and acknowledged
by the parties hereto, their successors or assigns and duly recorded in the Office of the County
Recorder, County of Riverside.
6.2 Amendments. Any amendment to any provision of this Article or to any
other provisions of this Declaration enforceable by the City shall require the prior written
consent of the City.
6.3 Governing Law. This Declaration shall be governed by and construed in
accordance with the laws of the State of California.
6.4 Severability. The invalidity or unenforceability of any provision of this
Declaration with respect to a particular party or set of circumstances shall not in ally way affect
the validity and enforceability of any other provision hereof, or the same provision when implied
to another party or to a different set of circumstances.
6.5 Notices. Any notice to be given under this Declaration shall be given by
personal delivery or by depositing the same in the United States Mail, certified or registered,
postage prepaid, at the following address:
To Agency: The Community Redevelopment Agency of
The City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Attn: Executive Director
City: City of Palm Springs
P.O. Box 2743
Palm Springs, CA 9226
Attn: City Manager
With Copy to: Burke, Williams & Sorensen, LLP
18301 Von Karman Ave, Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq.
Declarant: Burnett Development Corporation
1300 Bristol Street North, Suite 200
Newport Beach, CA 92660
Attn: Peter Laird, Esq.
1RV#14129 v5 E-9
With a copy to: Burnett Development Corporation
1300 Bristol Street North, Suite 200
Newport Beach, CA 92660
Attn: Tom LeBeau
Any notice delivered personally shall be effective upon delivery. Any notice given by
mail as above provided shall be effective forty-eight (48)hours after deposit in the mails. Any
party may change address for notice by giving written notice of such change to the other party.
6.6 Counterparts. This Declaration may be executed in any number of
counterparts each of which shall be an original but all of which shall constitute one and the same
document.
[SIGNATURE PAGE TO FOLLOW]
IRV#14129 v5 E-10
IN WITNESS WHEREOF, the undersigned have executed this Agreement was executed
as of the date first written above.
BURNETT DEVELOPMENT CORPORATION, a
California corporation
By:
Its:
By:
Its:
"Declarant"
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate and politic
By: By:
Assistant Secretary Chairman
"Agency"
ATTEST: CITY OF PALM SPRINGS, a
municipal corporation
By: By.
City Clerk Mayor
"City"
APPROVED AS TO FORM:
Agency Counsel and
City Attorney
IRV#14129 v5 E-1 I
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
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]
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
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]
IRV#14129 v5 E-12
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
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]
IRV#14129 vs E-13
� s
EXHIBIT "I"
LEGAL DESCRIPTION OF THE SITE
THE LAND REFERRED TO IN THIS AGREEMENT IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF PALM SPRINGS AND IS DESCRIBED
AS FOLLOWS:
IRV#14129 vs E-14
EXHIBIT "F"
FREE RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS
P.O. Box 2743
Palm Springs, California 2262
Attn: Assistant Secretary
(Space Above Line for Recorders Use Only)
GRANT DEED
FOR A VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,
CALIFORNIA, a public body, corporate and politic, herein called "Grantor," acting under the
Community Redevelopment Law of the State of California, hereby grants to BURNETT
DEVELOPMENT CORPORATION, a California corporation, herein called "Grantee," the real
property, hereinafter referred to as the "Acquisition Parcels," in the City of Pahn Springs, County
of Riverside, State of California, more particularly described in Attachment No. 1 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 Grantor and the City of Palm Springs, a municipal
corporation, as follows:
1. Governing Documents.
The Acquisition Parcels is being conveyed (i)pursuant to a Disposition and Development
Agreement (the 'DDA") entered into by and among Grantor and Grantee and dated
2001 and (ii) subject to the terms of the DDA, this Deed, and the Declaration of Covenants,
Conditions and Restrictions ("Declaration") by and between Grantor and Grantee, executed and
recorded concurrently herewith. The DDA and the Declaration are public records on file in the
office of the City Clerk of the City of Palm Springs, located at 3200 East Taliquitz Canyon Way,
Palm Springs, California 92263, and are incorporated herein by this reference. Any capitalized
terms not defined herein shall have the meanings ascribed to them in the DDA. Grantee
covenants and agrees for itself and its successors and assigns to develop the Acquisition Parcels
in accordance with the DDA and thereafter to use, operate and maintain the Acquisition Parcels
in accordance with the Redevelopment Plan, the Declaration, and this Deed. The Acquisition
Parcels is also conveyed subject to easements and rights-of-way of record and other matters of
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record. In the event of any conflict between this Deed and the DDA, the provisions of the DDA
shall control.
2. Term of Restriction.
Pursuant to the DDA and the Declaration, Grantee hereby covenants and agrees for itself,
its successors, its assigns, and every successor in interest to the Acquisition Parcels that Grantee,
such successors and such assigns, shall not develop, operate, maintain or use the Acquisition
Parcels in violation of the terms and conditions of this Deed and the Declaration (unless
expressly waived in writing by Grantor) for the term of the Redevelop Plan; provided that,
however, the covenants contained in Sections 7 and 8 shall remain in effect in perpetuity.
3. Right of Re-Entry Prior to Completion.
The Grantee covenants by and for itself and any successors in interest that the Grantor
shall have the additional right, at its option, to reenter and take possession of the Acquisition
Parcels hereby conveyed, with all improvements thereon, and revest in the Grantor the estate
conveyed to the Grantee, if after conveyance of title and prior to issuance of a Certificate of
Completion of construction of the Project upon the Acquisition Parcels, the Grantee or
successor-in-interest shall:
(a) Fail to proceed with the construction of the Project as required by
the DDA within the time period for cure as provided in the DDA; or
(b) Abandon or substantially suspend constriction of the Project as
required by the DDA, and fail to proceed within the time period for cure as provided in
the DDA; or
(c) Transfer, or suffer any involuntary transfer of the Acquisition
Parcels, or any part thereof, in violation of the DDA.
Such right to reenter, repossess and revest shall be subordinate and subject to and be
limited by and shall not defeat, render invalid or limit:
(d) Any mortgage, deed of trust or other security instrument for the
benefit of any lender approved by the Agency pursuant to the DDA and/or Section 6
below;
(e) Any rights or interests provided in the DDA for the protection of
the holder of such mortgages, deeds of trust or other security instruments.
Within five (5) days after Grantor gives Grantee written notice that Grantor intends to
exercise its right to reenter and take possession of the Acquisition Parcels, Grantee shall deliver
grant deed(s) reconveying the Acquisition Parcels to Grantor.
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4. Reservation of Existing Streets.
Grantor excepts and reserves any existing street, proposed street, or portion of any street
or proposed street lying outside the boundaries of the Acquisition Parcels which might otherwise
pass with a conveyance of the Acquisition Parcels.
5. Transfer Restrictions.
The Grantee covenants prior to the recordation of the Certificate of Completion against
the Acquisition Parcels, Grantee shall not Transfer(as hereinafter defined) the DDA, the
Acquisition Parcels or any of its interests therein except as provided in this Section.
5.1 Transfer Defined.
As used in this Section, the term "Transfer" shall include any assigrinent, hypothecation,
mortgage,pledge, conveyance, or encumbrance of this Agreement, the Acquisition Parcels, 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 Grantee 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 irmmediate family, or among the entities constituting Grantee or its general partners
or their respective shareholders. In the event any entity constituting Grantee, its successor or the
constituent partners of Grantee or any successor of Grantee, is a corporation or host, such
transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation,
or of beneficial interests of such trust; in the event that any entity constituting Grantee, its
successor or the constituent partners of Grantee or any successor of Grantee 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
Grantee, its successor or the constituent partners of Grantee or any successor of Grantee 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.
5.2 Grantor Approval of Transfer Required.
During the terns of the Declaration, Grantee shall not Transfer this Agreement or any of
Grantee's rights hereunder, or any interest in the Acquisition Parcels or in the improvements
thereon, directly or indirectly, voluntarily or by operation of law without the prior written
approval of Grantor, which approval may not be unreasonably withheld, and any such purported
Transfer without such approval shall be mill and void. In considering whether it will grant
approval to any Transfer by Grantee, which Transfer requires Grantor approval, Grantor shall
consider factors such as (i) whether the completion of the Project is jeopardized; (ii) the financial
credit, strength and capability of the proposed transferee to perform Grantee's obligations
hereunder; (iii) the proposed transferee's experience and expertise in the planning, financing,
rehabilitation, development, ownership, and operation of similar projects; and (iv) whether the
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Transfer is for the purpose of financing the purchase or rehabilitation of the Acquisition Parcels.
A Transfer for financing purposes shall not be approved by the Grantor if the loan documents do
not state that the loan proceeds must be used for the Project.
5.3 Release; Assumption.
In the absence of specific written agreement by Grantor no Transfer by Grantee of all or
any portion of its interest in the Acquisition Parcels shall be deemed to relieve Grantee or any
successor party from the obligation to complete the Project or any other obligations under this
Deed. In addition, no attempted Transfer of any of Grantee's obligations hereunder shall be
effective unless and until the successor party executes and delivers to Grantor an assumption
agreement in a form approved by the Grantor assuming such obligations.
6. Non-Discrimination.
Grantee covenants that there shall be no discrimination against, or segregation of, any
persons, or group of persons, on account of race, color, creed, religion, sex, marital status, age,
physical or mental disability, ancestry, or national origin in the rental, sale, lease, sublease,
transfer, use, occupancy, or enjoyment of the Acquisition Parcels, 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 reference to the selection, location,
number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the
Acquisition Parcels or any portion thereof. The nondiscrimination and nonsegregation covenants
contained herein shall remain in effect in perpetuity.
7. Form of Nondiscrimination Clauses in Agreements.
Except as specifically provided in the Declaration with respect to renting the units within
the Project to Senior Citizens, as such term is defined therein, Grantee shall refrain from
restricting the rental, sale, or lease of any portion of the Acquisition Parcels on the basis of race,
color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national
origin of any person. All such deeds, leases, or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
(a) Deeds: In deeds the following language shall appear: "Except as
specifically provided in the Declaration with respect to renting the units within the
Project to Senior Citizens, as such term is defined therein, 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."
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i
(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:
"Except as specifically provided in the Declaration with respect to renting the units
within the Project to Senior Citizens, as such term is defined therein, that there shall be no
discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national origin
in the leasing, subleasing, renting, transferring, use, occupancy, tenure, or enjoyment of the land
herein leased nor shall the lessee itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the land herein leased."
(c) Contracts: In contracts the following language shall appear: "Except
as specifically provided in the Declaration with respect to renting the units within the
Project to Senior Citizens, as such tenn is defined therein, 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, nor shall the transferee itself, or any person claiming
under or through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sublessees, or vendees of the land."
The foregoing covenants shall remain in effect in perpetuity.
8. Mortgage Protection.
No violation or breach of the covenants, conditions, restrictions,provisions or limitations
contained in this 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 and approved
by Grantor pursuant to the DDA; provided, however, that any successor of Grantee to the
Acquisition Parcels 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.
9. Covenants to Run With the Land.
The covenants contained in this 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 Acquisition Parcels, whether their interest shall
be fee, easement, leasehold, beneficial or otherwise.
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10. Rights Upon Default.
10.1 Rights of Holder of Mortgage to Cure.
Whenever Grantor shall deliver any notice or demand to the Grantee with respect to any
breach or default by the Grantee under the DDA or the Declaration, Grantor shall at the same
time deliver to each holder of record of any mortgage, deed of trust or other security interest and
the lessor under a lease-back or grantee under any other conveyance for financing authorized by
and approved by Grantor pursuant to the DDA, a copy of such notice or demand. Each such
holder(insofar as the rights of the Grantor are concerned) has the right at its option within ninety
(90) days after the receipt of the notice, to cure or remedy, or to commence to cure or remedy,
any such default and to add the cost thereof to the security interest debt and the lien on its
security interest, or to the obligations of the lessee under any lease-back, or of the grantor under
any other conveyance for financing. If such default shall be a default which can only be
remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain
possession with diligence or continuity through a receiver or otherwise, and shall remedy or cure
such default within ninety(90) days after obtaining possession; provided that in the case of a
default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot
be commenced, within such 90 day period, such holder shall have such additional time as
reasonably necessary to remedy or cure such default with diligence and continuity; and provided
further that such holder shall not be required to remedy or cure any noncurable default of the
Grantee. Nothing contained in the DDA or this Deed shall be deemed to permit or authorize
such holder or other entity to undertake or continue the construction or completion of the
improvements (beyond the extent necessary to conserve or protect the improvements or
construction already made) without first having expressly assumed the Grantee's obligation (with
respect to the Acquisition Parcels or any portion thereof on which the holder or other entity has
an interest) to the Grantor by written agreement satisfactory to Grantor. The holder or other
entity in that event must agree to complete, in the mariner provided in the DDA, the
improvements to which the lien or title of such holder relates, and submit evidence satisfactory to
Grantor that it has the qualifications and financial responsibility necessary to perform such
obligations. Any such holder or other entity properly completing such improvements shall be
entitled, upon written request made to the Grantor, to a Certificate of Completion from the
Grantor with respect to such improvements.
10.2 Grantor's Right to Purchase Mortgage.
In any case where, six (6) months after default by the Grantee in completion of
constriction of improvements under the DDA, the holder of any mortgage, deed of trust or other
security interest creating a lien or encumbrance upon the Acquisition Parcels, or the lessor under
a sale/lease-back, or grantee under any other conveyance for financing of the Acquisition Parcels
or any portion thereof approved by Grantor pursuant to the DDA, has not exercised the option to
constrict, or if it has exercised the option but has not proceeded diligently with construction,
Grantor may either: (1)purchase the mortgage, deed of trust or other security interest, or the
interest of any such lessor or grantee, by payment to the holder of the amount of the unpaid debt,
plus any accrued and unpaid interest, or, in the case of such lessor or grantee, by payment to such
lessor or grantee of the purchase price paid for its interest in any of the Acquisition Parcels (or
any portion thereof) and the improvements to be constructed thereon, and any unpaid rent or
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other charges payable to it wider its applicable agreements with its lessee or grantor; or(2) if the
ownership of the Acquisition Parcels (or any portion thereof)has vested in the holder, purchase
from the holder such interest, upon payment to the holder of an amount equal to the sum
indebtedness secured by such mortgage.
10.3 Grantor's Right to Cure Default.
In the event of a default or breach by the Grantee (or entity pennitted to acquire title
under the DDA) of a mortgage, deed of trust or other security instrument, of a lease-back, or of
obligations of the Grantee under any other conveyance for financing with respect to the
Acquisition Parcels, or any portion thereof prior to the completion of development of
improvements thereon, and the holder has not exercised its option to complete the development,
the Grantor may cure the default prior to completion of any foreclosure, to termination of the
lease, or to completion of proceedings by which such other security interest is retained or granted
back. In such event, the Grantor shall be entitled to reimbursement from Grantee (or such other
entity permitted to acquire title under the DDA) of all costs and expenses incurred by the Grantor
in curing the default, to the extent permitted by law as if such holder initiated such claim for
reimbursement. Grantor shall be entitled to a lien upon the Acquisition Parcels (or any portion
thereof) encumbered by the security instrument with respect to which Grantee (or such other
entity pennitted to acquire title under the DDA)has defaulted to the extent of such costs and
disbursements. Any such lien shall be subject to mortgages, deeds of trust, or other security
instruments and the interest of lessors under any leases-back and grantees under other
conveyances for financing executed for the sole purpose of obtaining fiords to purchase and/or
develop the Acquisition Parcels (or any portion thereof), to construct the improvements thereon,
and to finance such costs and to pay all costs reasonably related to the Grantee's obtaining and
performing this Agreement.
10.4 Grantor's Right to Satisfy Liens.
After the conveyance of title and prior to the recordation of a Certificate of Completion
for construction and development, and after the Grantee had a reasonable time to challenge, cure
or satisfy any liens or encumbrances on the Acquisition Parcels or any portion thereof, the
Grantor shall have the right to satisfy any such liens or encumbrances.
11. Counterparts.
This Deed may be executed in any number of counterparts, each of which shall be an
original and all of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers or agents hereunto as of the date first above
written.
GRANTOR:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF PALM SPRINGS, a public
body, corporate and politic
By:
Chairman
ATTEST:
By:
Assistant Secretary
APPROVED AS TO FORM:
BURKE, WILLIAMS & SORENSEN, LLP
By:
David J. Aleshire, Agency Counsel
By its acceptance of this Deed, Grantor hereby agrees as follows:
1. Grantee expressly understands and agrees that the terns of this Deed shall be
deemed to be covenants mmming with the land and shall apply to all of the Grantee's successors
and assigns (except as specifically set forth in the Deed).
2. The provisions of this Deed are hereby approved and accepted.
GRANTEE:
BURNETT DEVELOPMENT CORPORATION, a
California corporation
By:
Its:
By:
Its:
12V#14129 vs F 8
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a notary public, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
On before me, a notary public,personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
By:
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ATTACHMENT NO. 1
DESCRIPTION OF PARCELS S, Q and RI
That certain real property located in the City of Palm Springs, County of Riverside, State
of California described as follows:
PARCELS:
To be provided prior to close of Escrow.
PARCEL Q AND R-1:
A PORTION OF LOT 9 OF TRACT NO. 17642-1 IN THE CITY OF PALM
SPRINGS,.COUNTY OF RIVERSIDE, CALIFORNIA, AS PER MAP ON FILE
IN BOOK 122 PAGES 88, 89 AND 90 OF MAPS, IN THE OFFICE OF THE
RECORDER OF SAID COUNTY, BEING ALSO SHOWN AS NOT A PART
OF TRACT NO. 26943-1 IN SAID CITY OF PALM SPRINGS, AS PER MAP
ON FILE IN BOOK 235 PAGES 84 AND 85 OF MAPS IN THE OFFICE OF
SAID RECORDER, TOGETHER WITH THE NORTHERLY 731.00 FEET OF
LOT 1 OF SAID TRACT NO. 17642-1 AND TOGETHER WITH THE
NORTHERLY 731.00 FEET OF PARCEL 2, DESCRIBED IN DOCUMENT
RECORDED APRIL 25, 1996 AS INSTRUMENT NO. 148930, RECORDS OF
SAID COUNTY AND TOGETHER WITH THAT PORTION OF LOT "C" OF
SAID TRACT NO. 17642-1 DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 2;
THENCE NORTH 00015'14"EAST 582.00 FEET ALONG THE WESTERLY
LINE OF SAID LOT "C" TO THE NORTHWEST CORNER THEREOF;
THENCE SOUTH 89046'28"EAST 1,112.00 FEET ALONG THE
NORTHERLY LINE OF SAID LOT "C" TO A POINT FROM WHICH THE
NORTHWEST CORNER OF LOT 6 OF SAID TRACT NO. 17642-1 BEARS
SOUTH 000 15'14" WEST 50.00 FEET, BEING THE WESTERLY LINE OF
LAND DESCRIBED IN DOCUMENT RECORDED MARCH 16, 1992 AS
INSTRUMENT NO. 87943, RECORDS OF SAID COUNTY;
THENCE SOUTH 00015'14" WEST 50.00 FEET TO THE NORTHWEST
CORNER OF SAID LOT 6, BEING ALSO A POINT IN THE NORTHERLY
LINE OF SAID LOT 9;
THENCE NORTH 89046'28"WEST 1062.00 FEET ALONG SAID
NORTHERLY LINE OF LOT 9 TO THE NORTHWEST CORNER THEREOF;
THENCE SOUTH 000 15'14" WEST 532.00 FEET TO THE NORTHEAST
CORNER OF SAID PARCEL 2;
THENCE NORTH 89046'28"WEST 50.00 FEET TO THE POINT OF
BEGINNING
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