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12/18/2002 - STAFF REPORTS (2)
DATE: DECEMBER 18, 2002 TO: COMMUNITY REDEVELOPMENT AGENCY AND CITY COUNCIL FROM: DIRECTOR OF COMMUNITY & ECONOMIC DEVELOPMENT A JOINT PUBLIC HEARING TO APPROVE A DISPOSITION AND DEVELOPMENT AGREEMENT WITH BURNETT COMPANIES ON A 19.17 ACRE PARCEL AND A 22.21 ACRE PARCEL NEAR THE CORNER OF SUNRISE WAY AND SAN RAFAEL ROAD; AND, APPROVAL OF THE LOT LINE ADJUSTMENT NECESSARY TO FACILITATE THE AGREEMENT RECOMMENDATION: It is recommended that the Agency and City Council approve the Disposition and Development Agreement with Burnett Companies on a 19.17 + acre parcel and a 22.21 acre parcel at the corner of Sunrise Way and San Rafael Road to facilitate the development of a major single-family-home development; and, approve a lot line adjustment necessary to merge the lots into a single parcel BACKGROUND: In February, 2000 the Agency received an offer from Burnett Development Corporation (the "Developer") to purchase a 19.17 + acre Agency-owned parcel and a 22.21 acre City-owned parcel near the northwest corner of Sunrise Way and San Rafael Road for fair market value. The Developer is assembling land to build a major single-family-home development in the area. The City sold an 11,000 s.f. parcel of land on the east side of Sunrise Way to the Developer in 1998 as part of the Developer's land assembly; that parcel ultimately became part of a 238-home map approved earlier this year, known by the Developer as Palm Springs East. The Developer had originally asked for Agency assistance in acquiring a "hold-out" parcel from a property owner on the east side, but that property has been acquired through a voluntary, negotiated sale. The 19.17 acre parcel was acquired from the City as half of the Sunrise Mobile Home Park acquisition in November,1995. Santiago Sunrise Corporation, the owner of the park, held the lease on the acreage, which was the northern undeveloped half of the mobilehome park. The Agency approved a lease amendment on December 4, 2002, releasing that acreage from the lease in return for reducing Santiago's annual lease payment by one half. The Lot Line Adjustment enclosed as part of this action merges the 19.17 acre parcel with the adjacent 22.21 acre parcel, known as Parcel Q, and creates a new legal description for the remaining mobilehome park parcel and the new parcel to be conveyed to the Developer. By a separate action, an Agreement for Purchase and Sale dated July 18, 2001, the City conveyed the 22.21 parcel to the Agency for inclusion in the final Disposition and Development Agreement as Agency-owned property and to effectuate the lot line adjustment. The net sale proceeds, however, will be shared by the City and the Agency based on the respective appraised value of the two parcels: the previously-City-owned parcel was valued at $465,000, while the portion closest to the mobile home park is valued at $615,000. The latter amount would flow back to the Low/Mod Housing Fund. D d D 14 Parcel Q forms the northern tier of the entire 100 acre parcel once owned by the City and Desert Water Agency, and which now includes Sunrise Norte (single family homes on City land leases), the Mobile Home Park (on land owned now by the Agency), and Coyote Run, a 140-unit 100% affordable apartment complex built and owned by the Coachella Valley Housing Coalition (CVHC). CVHC is planning an expansion of Coyote Run, in a project called Sunset Hacienda, on 7.75 acres now owned by the Agency, acquired from the City in July, 2002. The CVHC project is unrelated to the Burnett DDA, except that Burnett is acquiring additional acreage north of the current Coyote Run site from the City or Agency (which was originally designated as a park site under the original Coyote Run project), in return for constructing basic park improvements for the City at a new park site located on Sunrise Way adjacent to the Sunset Hacienda project. As part of the negotiation, Agency staff commissioned an appraisal on the properties, first in May 2000 and a follow-up in February 2002. Since Burnett is not proposing to construct low-income housing on the land, they will pay "fair market' value, as the Low/Mod Housing Fund would not be able to write down their land cost. There remains a separate proposal from a non-profit housing group to purchase and rehabilitate the mobile home park, and a draft DDA has been prepared for their review. Agency staff continues to work on that deal, which would ultimately result in a HUD-insured bond issue to acquire the park. The lease amendment with Santiago was necessary because the Burnett DDA has moved ahead of the non-profit DDA in schedule. A map is enclosed that shows the various properties. The developer has proposed a major new home subdivision around the Palm Springs Country Club and surrounding areas, including these parcels. The Developer already owns most of the land necessary for the project, and has received his approval for Palm Springs East. The Palm Springs West subdivision is scheduled for approval tonight. Additionally, the Developer is negotiating to acquire an additional 30 + acres to the no 1i of these parcels; that map and project is not covered by this DDA. Altogether the project will consist of approximately 50 s, a c use, greenbelts, a d other recreational amenities. J HN S. AYMON Di of Community & Economic Development APPROVED�e....�-��..-:°-'f' Executive Director ATTACHMENTS: 1. Resolutions (Agency and City) 2. Disposition and Development Agreement 3. Map of Properties 4. Summary Report 5. Public Hearing Notice 6. Lot Line Adjustment with Attachments 7. Lot Line Adjustment Resolution C2R r9 Z DISPOSITION AND DEVELOPMENT AGREEMENT THIS DISPOSITION AND DEVELOPMENT AGREEMENT("Agreement") is entered into this_day of 12002(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.2("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 terms 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 44 43 acres combined, owned by the Agency and referred to herein as"Parcel Q"and"Parcel RV,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 ,2002,pursuant to a Notice of Public Hearing duly published,to consider the Project. E. On ,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 fulfillment 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 seq.,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 environmental effects of the proposed Project,including land use,traffic/circulation,parking,air 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 term "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. IRV#14129 Red ON4 _]- C A3 1.2 Certificate of Completion. The term "Certificate of Completion" shall mean that certain Certificate of Completion attached hereto as Exhibit"D". 1.3 Cam. The tern "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 term"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 form attached hereto as Exhibit"F". 1.7 Development Plans. The term"Development Plans" shall have the meaning set forth in Section 4. 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 term "Enforced Delay"shall have the meaning set forth in Section below. 1.10 Parcel S. The term "Parcel S"shall mean that certain real property located within the Site at Palm Springs,California,and as specifically described and shown as Parcel S on Exhibit"A" attached hereto and incorporated herein by this reference. 1.11 Parcel Q. The term "Parcel Q"shall mean that certain real property located within the Site at ,Palm Springs,California,and as specifically described and shown as Parcel Q on Exhibit"A" attached hereto and incorporated herein by this reference. 1.12 Parcel RI. The term"Parcel RI"shall mean that certain real property located within the Site at Palm Springs,California,and as specifically described and shown as Parcel R,which comprises that certain defined portion of Parcel R as shown on Exhibit"A"attached hereto and incorporated herein 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 home development at the Site. 1.14 Project Area. The term"Project Area"shall mean the Merged Redevelopment Project Area No. 1. 1.15 Redevelopment Plan. The term "Redevelopment Plan" shall mean the Redevelopment Plan for the Merged Project Area No.2 which was adopted by Ordinance Number_of the City Council of City on . 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. The term"Scope of Development"shall mean that certain exhibit attached hereto as Exhibit"C"and incorporated herein by reference which sets forth the terns of the Project. IRV#14129 Red v3/v4 -2- ck� Ay 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 RI 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 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 colder the Community Redevelopment Law of the State of California,Health and Safety Code Sections 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 RI 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 CA 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 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. (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) Litigation. 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). IRV#14129 Red 0/0 (d) No Possessory Interests. Developer has the right of possession of the Site, except Parcels 9 S_,Q and R,on the scheduled date of commencement of construction of the Project set forth in the Schedule of Performance,free from any tenant leases,tenancies, licenses, or other similar occupancy agreements that could interfere with Developer's right to develop the Project. (e) 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 would permit any party to terminate an agreement or accelerate the maturity of any indebtedness or other obligation affecting Developer. (f) 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 governmental permit or license issued to, Developer or relating to the Developer Parcel. (g) 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. (h) 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 Agreement,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. (i) 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. 0) 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 full power and authority to enter this Agreement and all authorizations required to make this Agreement binding upon Developer have been obtained. (k) 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. (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 acknowledges that the City retains such full police power as well. Nothing in this Agreement shall be deemed to be a prejudgment or IRV il14129 Red v3/v4 _4_ commitment with respect to such items 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 concurrently with the approval of this Agreement,the Agency has approved the Developer's basic concept drawings. On or before the date 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 term 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. Final drawings will be in sufficient detail to obtain a building permit. Said plans,drawings and specifications shall be consistent with the Scope of Development and the various development approvals referenced hereinabove,except as such items may be amended by City(if applicable)and by mutual consent of Agency and Developer. Plans, (concept,preliminary and construction)shall be progressively more detailed and will be approved if 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 of construction,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 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 may be permitted through approved variances and modifications. Developer shall not be obligated to commence 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. IRV#14129 Red v3/v4 ��� 47 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 Construction. 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 Construction 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. 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. 4.10 Rights of Access. Representatives of the Agency shall have the reasonable right of access to the Site without charges or fees,at any time during normal construction hours during the period of construction, for the purpose of assuring compliance with this Agreement,including but not limited to the inspection of the construction work being performed by or on behalf of Developer. Such representatives of Agency shall be those who are so identified in writing by the Executive Director of Agency. Each such representative of Agency shall identify himself or herself at the job site office upon his or her entrance to the Site,and shall provide Developer,or the construction superintendent or similar person in charge on the Site,a reasonable opportunity to have a representative accompany him or her during the inspection. Agency shall indemnify,defend,and hold Developer harmless 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 easements 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 Agency completion of the Project, 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. IRV k 14129 Red v3/v4 _6_ If Agency refuses or fails to furnish 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 furnish 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 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 form 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 terms or conditions except as may be acceptable to Agency in its sole and absolute discretion. (b) Condemnation. If,after and despite its best efforts to do so,Agency is unable to acquire Parcel S or the leasehold interest to Parcel Rl 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 property 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 RI,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 commencement of eminent domain proceedings. In the event Agency elects not to condemn a parcel,Agency shall not have any liability of any kind to Developer despite the effect of such election on the Project. 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 RI. 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 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 Rl in excess of Agency'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 indemnifies 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 RI. If Developer fails to pay the full 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 1RV 414129 Red v3/v4 _�_ Parcel S and the leasehold interest to Parcel RI 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 and 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 form of construction of public improvements to the park area to be designated by A s y.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 bear any cost therefor. Accordingly, all costs of such acquisition including appraisal,legal, environmental,reinediation,engineering,consulting and other costs shall be borne by Developer. Developer shall deposit have deposited$50,000 with Agency GimcurFently. �P 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 suns expended. (ii) Order of Prejudgment Possession. Should Agency exercise its power of eminent domain to acquire Parcel S or the leasehold interest in Parcel RI and provided Developer has approved in writing title pursuant to Section 5.8 below,Agency shall, upon Developer's written request(which written request shall specifically state that Developer is prepared to take possession of the Site within sib ninet 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 RI, (i)Agency deposits the Deed and a copy of the Order of Prejudgment Possession for Parcel S or the leasehold interest in Parcel RI into Escrow; (ii) Agency tenders possession of Parcel S or the leasehold interest in Parcel RI 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 RI. (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 IRV#14129 Red v3/v4 -8- C%,4 ��a (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 RI as part of the Site under the terms of this Agreement. 5.4 Sale of Parcel Q-and Parcel Rl and T npel S. (a) Parcel Q. Subject to all of the terms and conditions of this Agreement,Agency shall convey Parcel Q to Developer for the total purchase price of Four Hundred Sixty Five Thousand and 00/100 Dollars($465,000.00)("Parcel Q Purchase Price")to be paid in cash at closing. (b) Parcel Rl. 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 Fifteen Thousand and 00/100 Dollars($615,000.00)(Parcel Rl Purchase Price")to be paid in cash at closing. 5.5 Escrow for Sale of Parcels S Q 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 terms herein as shall be reasonably necessary. No provision of any additional escrow instructions shall modify this document without specific written approval of the modifications by both Developer and Agency. 5.6 Conditions to Close of Escrow. (a) Developer's Conditions to Closing. Developer's obligation to acquire the Site and to close Escrow hereunder,shall, in addition to any other conditions set forth herein in 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 RI (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("FIRPTA 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. IRV#14129 Red v3/0 cA4 411 (vi) Developer shall have obtained from the City all required approvals and site plan review, nditio al ubdi, building, p^"„mx�riss-:""c^ia including site b, 6T"dmg� and tentative tract moo approval for development of theIginisGaping, and others 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 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 time provided in the Schedule of Performance: (i) Developer Agency processing and gaining all necessary approvals from the City of the partition of Parcel RI. (ii) Developer's financial statements and loan commitment shall be subject to the approval of Agency. (iii) Developer shall have toinely submitted to A a^^^^ plans a a _'' ^ awings Cy,; -qlt- YI tWYd]teII]Cttts1o6n r .. ..rttrte`I .. 1. Site, 1 review,uding for site PlAn �Q;iditinnal use, ^ b-ildi^ grading, landscaping `''^'ViflgS, as provid a in Section " 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 after dMuGtion of the A nquisition Deposit Ao ^ Q ^ ^^ .. � a w rt I Agenny before ,Parcel Purchase Price and Parcel RI 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 Closing. Prior to the Closing Date, Developer and Agency shall execute and deliver a certificate("Taxpayer ID Certificate")in such form as may be required by the IRS pursuant to Section 6045 of the Internal Revenue Code,or the regulations issued pursuant thereto, certifying as to the description of the Site, date of closing,gross price,and taxpayer identification number for Developer and Agency. Prior to the Closing,Developer and Agency shall cause to be delivered to the Escrow Agent such other items, instruments and documents,and the parties shall take such further actions,as may be necessary or desirable in order to complete the Closing. At the Closing neither party shall be in breach of its obligations hereunder. 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 IRV#14129 Red v3/v4 -10- Cje4 A 1Z 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 certifying that Developer has completed all acts,other than as specified, necessary for conveyance, if such be the fact; and(iii)payment to Escrow Agent of Agency's share of costs as determined by the Escrow Agent pursuant to Section 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 RI Purchase Price; (ii)an estoppel certificate certifying that Agency has completed all acts,other than as specified,necessary to conveyance, if such be the fact;and(iii)payment to Escrow Agent of Developer's share of costs as determined by the Escrow Agent pursuant to Section 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. 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. IRV#14129 Red v3/v4 -11- C,�A Ai3 (c) Agency Not to Encumber Site. Agency hereby warrants to Developer that it has not and will not, from the time of Developer's review of the Preliminary Title Report to close of escrow, transfer, sell,hypothecate,pledge,or otherwise encumber the Site without express written permission of Developer. (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 Performance,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 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 of action with the title company,bonding and indemnities,reimbursement of architectural and design expenses,and other modifications 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 Capability. Within the time set forth in the Schedule of Performance,Developer shall submit to Agency's Executive Director for approval evidence reasonably satisfactory to the Executive Director that Developer 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 documentation reasonably satisfactory to the Executive Director sufficient to demonstrate that Developer has adequate funds available and committed to finance the development of the Project. (c) 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). IRV#14129 Red v3/v4 -12 (d) (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 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, geotechnical or other condition of the Site,the suitability of the Site for the Project, or the present use of the Site,and specifically disclaims all representations or warranties of any nature concerning the Site made by it,the City and their employees,agents and representatives. The foregoing disclaimer includes,without limitation,topography,climate air,water rights,utilities,present and future zoning, soil,subsoil,existence of Hazardous Materials or similar substances,the purpose for which the Site is suited, or drainage. The Agency makes no representation or warranty concerning the compaction of soil upon the Site,nor of the suitability of the soil for construction. (b) Right to Enter Site, Indemnification. 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 terms of this Agreement. Developer shall indemnify, defend and hold Agency harmless from and against any claims,injuries or damages arising out of or involving any such entry or activity as provided in Section 505. Any such activity shall be undertaken only after securing any necessary permits from the appropriate governmental agencies and providing Agency with certificates of insurance evidencing the coverages required in Section 506. (c) Hazardous Materials. Developer understands 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 terms are defined below,and from any and all actions,suits, legal or administrative orders or proceedings, demands,actual damages,punitive damages, loss, costs,liabilities and expenses,which concern or in any way relate to the physical or environmental conditions of the Site,the existence of any Hazardous Material thereon, or the release or threatened release of Hazardous Materials therefrom,whether existing prior to,at or after the Closing. It is the intention of the parties pursuant to this release that any and all responsibilities and obligations of Agency and City,and any and all rights,claims,rights of action, causes of action, demands or legal rights of any kind of Developer,its successors, assigns or any affiliated entity of Developer,arising by virtue of the physical or environmental condition of the Site,the existence of any Hazardous Materials thereon,or any release or threatened release of Hazardous Material therefrom, whether existing prior to,at or after the Closing,are by this Release provision declared null and void and of no present or future force and effect as to the parties. In connection therewith,Developer and each of the IRV#14129 Red v3/v4 -13- entities constituting Developer,expressly agree to waive any and all rights which said party may have under Section 1542 of the California Civil Code which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." DEVELOPER'S INITIALS: AGENCY'S INITIALS: Developer and each of the entities constituting Developer, shall, from and after the Closing,defend, indemnify and hold harmless Agency, City and their officers,directors,employees,agents and representatives (collectively,the"Indemnified Parties")from and against any and all Environmental Claims, Environmental Cleanup Liability,Environmental Compliance Costs,and any other claims, actions,suits, legal or administrative orders or proceedings,demands or other liabilities resulting at any time from the physical and/or environmental conditions of the Site whether before or after the Closing or from the existence of any Hazardous Materials or the release or threatened release of any Hazardous Materials of any kind whatsoever,in,on or under the Site occurring at any time whether before or after the Closing,including,but not limited to,all foreseeable and unforeseeable damages, fees, costs, losses and expenses, including any and all attorneys' fees and environmental consultant fees and investigation costs and expenses,directly or indirectly arising therefrom,and including fines and penalties of any nature whatsoever,assessed, levied or asserted against any Indemnified Parties to the extent that the fines and/or penalties are the result of a violation or an alleged violation of any Environmental Law. Developer further agrees that in the event Developer obtains,from former or present owners of the Site or any other persons or entities, releases from liability, indemnities,or other forms of hold harmless relating to the subject matter of this section, Developer shall use its diligent efforts to obtain for Agency and City the same releases,indemnities and other comparable provisions. 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 Environmental Law. b. "Environmental Cleanup Liability"means any cost or expense of any nature whatsoever incurred to contain,remove,remedy,clean up,or abate any contamination or any Hazardous Materials on or under all or any part of the Site,including the ground water thereunder, including,without limitation,(A)any direct costs or expenses for investigation,study,assessment, legal representation,cost recovery by governmental agencies,or ongoing monitoring in connection therewith and(B)any cost,expense, loss or damage incurred with respect to the Site or its operation as a result of actions or measures necessary to implement or effectuate any such containment,removal,remediation,treatment,cleanup or abatement. C. "Environmental Compliance Cost"means any cost or expense of any nature whatsoever necessary to enable the Site to comply with all applicable Environmental Laws in effect. "Environmental Compliance Cost"shall include all costs necessary to demonstrate that the Site is capable of such compliance. d. "Environmental Law"means any federal,state or local statute, ordinance,rule, regulation,order,consent decree,judgment or common-law doctrine, and provisions and conditions of permits, licenses and other operating authorizations relating 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 commerce of chemical substances, including,without limitation,their manufacture, formulation, labeling,distribution,transportation,handling,storage and disposal. IRV#14129 Red 0/0 -14- C. "Hazardous Material"is defined to include any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority,the State of California,or the United States Government. The term"Hazardous Material" includes,without limitation, any material or substance which is: (A)petroleum or oil or gas or any direct or derivate product or byproduct thereof; (B)defined as a "hazardous waste,""extremely hazardous waste"or"restricted hazardous waste"under Sections 25115,25117 or 25122.7,or listed pursuant to Section 25140, of the California Health and Safety Code, Division 20,Chapter 6.5 (Hazardous Waste Control Law);(C)defined as a"hazardous substance"under Section 25316 of the California Health and Safety Code,Division 20, Chapter 6.8(Carpenter-Presley-Tanner Hazardous Substance Account Act); (D)defined as a"hazardous material,""hazardous substance,"or"hazardous waste"under Sections 255010)and(k) and 25501.1 of the California Health and Safety Code, Division 20, Chapter 6.95(Hazardous Materials Release Response Plans and Inventory);(E)defined as a"hazardous substance"under Section 25281 of the California Health and Safety Code,Division 20,Chapter 6.7(Underground Storage of Hazardous Substances); (F)"used oil" as defined under Section 25250.1 of the California Health and Safety Code;(G)asbestos; (H)listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations,or defined as hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22 of the California Code of Regulations; (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 Conservation and Recovery Act,42 U.S.C. § 6901 et Leg.(42 U.S.C. § 6903); (L)defined as a"hazardous substance"pursuant to the Comprehensive Environmental Response, Compensation and Liability Act,42 U.S.C. § 9601 et seq.(42 U.S.C. §9601);(M)defined as"Hazardous Material" pursuant to the Hazardous Materials Transportation Act,49 U.S.C. § 5101 et seq.;or(N)defined as such or regulated by any"Superfund"or"Superlien"law,or any other federal, state or local law,statute,ordinance,code, rule,regulation, order or decree regulating,relating to,or imposing liability or standards of conduct concerning Hazardous Materials and/or 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,reprorate 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. IRV#14129 Red v3/v4 -15- CkA A /7 (d) Escrow Agent's Right to Retain Documents. Escrow Agent shall have the right to retain all documents and/or other things of value at any time held by it hereunder until such compensation, fees, costs and expenses shall be paid. The undersigned hereby jointly and severally promise to pay such sums upon demand. 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. In the event of the foregoing,the terminating party may, in writing,demand return of its money, papers,or documents from the Escrow Agent and shall deliver a copy of such demand to the non- terminating party. No demand shall be recognized by the Escrow Agent until thirty(30)days after the Escrow Agent shall have mailed copies of such demand to the non-terminating party, and if no objections are raised in writing to the terminating party and the Escrow Agent by the non-terminating party within the thirty(30)day period. In the event of such objections,the opportunity to cure shall be provided as stated below in subsection 2 of this Section. In addition,the Escrow Agent is authorized to hold all money, papers,and documents until instructed in writing by both Developer and Agency or,upon failure thereof, by a court of competent jurisdiction. If no such demands are made,the Escrow shall be closed as soon as possible and neither party shall have any further liability to the other. (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. 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 funds 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 IRV#14129 Red v3/v4 -16- CQAt9V 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 notifying Developer and Agency of the controversy. In the event of such a controversy,the Escrow Agent shall not be liable for interest or damage costs resulting from failure to timely close escrow or take any other action unless such controversy has been caused by the failure of the Escrow Agent to perform its responsibilities hereunder. 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 grading entitlement for tract man 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. 6.1 Transfer Defined. As used in this Section,the term "Transfer" shall include any assignment,hypothecation,mortgage,pledge, conveyance,or encumbrance of this Agreement,the Site,or the improvements thereon. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than twenty-five percent(25%)(in the aggregate)of the present ownership and/or control of any person or entity constituting 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. IRV#14129 Red v3/v4 -17- UA AID 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. 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 arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Developer in the course of carrying out the work or services contemplated in this Agreement. (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 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. IRV 414129 Red v3/v4 _18_ The policies of insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California,rated"A"or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register,and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City("Risk Manager")due to unique circumstances. Developer shall provide in all contracts with contractors,subcontractors, architects,and engineers that said contractor,subcontractor,architect, or engineer shall maintain the same policies of insurance required to be maintained by Developer pursuant to this Section,unless waived by the Risk Manager 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. 8. 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 term "holder"shall include the holder of any such mortgage,deed of trust,or other security interest,or the lessor under a lease-back,or the grantee under any other conveyance for financing. 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 construction,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 IRV#14129 Red ON4 -19- CkA hat 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 permitted 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. 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 construction already made)without fast 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 construction,Agency may,after ninety(90)days'notice to such holder and if such holder has not exercised such option to construct within said ninety(90)day period,purchase the mortgage(or the fee interest if the holder has foreclosed),upon payment to the holder of an amount equal to the sum of the following: IRV#14129 Red v3/v4 -20- (a) The unpaid mortgage,debt plus any accrued and unpaid interest(less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings, if any); (b) All expenses, incurred by the holder with respect to foreclosure, if any; (c) The net expenses(exclusive of general overhead), incurred by the holder as a direct result of the ownership or management of the Site,such as insurance premiums or real estate taxes, if any; (d) The costs of any improvements made by such holder, if any;and (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage debt and such debt had continued in existence to the date of payment by the Agency. In the event that the holder does not exercise its option to construct afforded in this Section,and Agency elects not to purchase the mortgage of holder,upon written request by the holder to Agency,Agency agrees to use reasonable efforts to assist the holder selling the holder's interest to a qualified and responsible party or parties(as determined by Agency),who shall assume the obligations of making or completing the improvements required to be constructed by Developer,or such other improvements in their stead as shall be satisfactory to Agency. The proceeds of such a sale shall be applied first to the holder of those items specified in subparagraphs(a)through(e) hereinabove, and any balance remaining thereafter shall be applied as follows: (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 Securitv Interest Default. In the event of a default or breach by Developer(or entity permitted to acquire title under this Section)of a mortgage prior to the issuance by Agency of a Certificate of Completion for the Site or portions thereof covered by said mortgage, and the holder of any such mortgage has not exercised its option to complete the development,Agency may cure the default prior to completion of any foreclosure. In such event,Agency shall be entitled to reimbursement from Developer or other entity of all costs and expenses incurred by Agency in curing the default,to the extent permitted by law, as if such holder initiated such claim for reimbursement, including legal costs and attorneys'fees,which right of reimbursement shall be secured by a lien upon the Site,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 provided in this Agreement for the protection of the holders of such mortgages for financing;provided that nothing herein shall be deemed to impose upon Agency any affirmative obligations(by the payment of money,construction or otherwise)with respect to IRV N 14129 Red OM -21- C -OrT ,4 �� 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 Effective 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 terms of the Declaration,the Redevelopment Plan and this Agreement;provided that, in the event of any inconsistency,the provisions of the Redevelopment Plan shall prevail over all others, and the provisions of the 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 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 for that portion of the Site is Project within a 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, subtenants,sublessees or vendees of the Site. The foregoing covenants shall run with the land. (e) 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: (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 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." IRV 414129 Red v3/v4 _22_ (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 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." (iii) 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 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 terms and provisions of this Agreement and of the restrictions and covenants running with the land,whether or not appearing in the Declaration for and in its own right and for the purposes of protecting the interests of the community in whose favor and for whose benefit the covenants running with the land have been provided. The covenants in favor of the Agency shall run without regard to whether Agency has been,remains or is an owner of any land or interest therein in the Site,or in the Redevelopment Project Area,and shall be effective as both covenants and equitable servitudes against the Site. Agency shall have the right, if any of the covenants set forth in this Agreement which are provided for its benefit are breached,to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it may be entitled. With the exception of the City,no other person or entity shall have any right to enforce the terms of this Agreement under a theory of third-party beneficiary or otherwise. The covenants running with the land and their duration are set forth in the 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 of 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 IRV#14129 Red ON4 -23- cured within thirty(30)days Developer commences to cure said event within ten(10)days and diligently and in good faith continues to cure the event of default: (a) Developer fails to observe or perform any term 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; (c) 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 Bankruptcy Code or any similar law or regulation; (f) 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)days 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 of this Agreement within the time set forth herein,and such failure 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 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 of any Notice of Default given to the defaulting Party shall also be given to any permitted lender requesting such notice. Any failure or delay in IRV#14129 Red v3/v4 -24- 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 Party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect,assert or enforce any such rights or remedies. 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 performance of this Agreement or any term or provision hereof. Developer agrees that Agency shall be entitled to the judicial remedy of specific perfonnance 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. In the event that,prior to Developer's commencement of construction of the Project,Agency is not in Default under 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 same or different times,of any other rights or remedies for the same Default or any other Default by another Party. 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 specific performance,and each party agrees(subject to its reserved right to contest whether in fact a default does exist)not to challenge or contest the appropriateness of such remedy. In this regard,Developer specifically acknowledges that Agency is entering into this Agreement for the purpose of assisting in the redevelopment of the Site and not for the purpose of enabling Developer to speculate with land. 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 amended. Attorney's fees shall include attorney's fees on any appeal,and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. IRV#14129 Red v3/v4 -25- �JOUT 4a7 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. If to Developer: Bumett 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 manner 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 Forum. The laws of the State of California shall govem 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 of process on Developer shall be made in such manner as may be provided by law and shall be valid whether made within or without the State of California. 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 of Developer,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. IRV 414129 Red v3/v4 -26- /`/ 1 dz 11.6 Enforced Delay: Extension of Times of Performance. Time is of the essence in the perfonnance 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 governmental 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 run from the time of the commencement of the cause,provided notice by the party claiming such extension is sent to the other party within ten(10)days of the commencement of the cause. The following shall not be considered as events or causes beyond the control of Developer,and shall not entitle Developer to an extension of time to perform: (i)Developer's failure to obtain financing for the Project,and(ii)Developer's failure to negotiate agreements with prospective users for the Project or the alleged absence of favorable market conditions for such uses. Times of performance under this Agreement may also be extended by mutual written agreement by Agency and Developer. The Executive Director of Agency shall have the authority on behalf of Agency to approve extensions of time not to exceed a cumulative total of one hundred eighty(180)days with respect to the development of the Site. 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 terms of 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 attomey-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 and 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. 11.11 Assurances to Act in Good Faith. Agency and Developer agree to execute all documents and instruments and to take all action and shall use their best efforts to accomplish 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. IRV 414129 Red v3/v4 -27- C 12 A .4 aQ 11.13 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only,and shall not be construed to limit or extend the meaning of this Agreement. This Agreement includes all attachments attached hereto,which are by this reference incorporated in this Agreement in their entirety. This Agreement also includes the Redevelopment Plan and any other documents incorporated herein by reference,as though fully set forth herein. 11.14 Entire Agreement, Waivers and Amendments. This Agreement integrates all of the terms and conditions mentioned herein,or incidental hereto, and this Agreement supersedes all negotiations and previous agreements between the parties with respect to all or any part of the subject matter hereof All waivers of the provisions of this Agreement,unless specified otherwise herein,must be in writing and signed by the appropriate authorities of Agency or Developer,as applicable,and all amendments hereto must be in writing and signed by the appropriate authorities of Agency and Developer. 11.15 Time for Acceptance of Agreement by Agency. This Agreement,when executed by Developer and delivered to Agency,must be authorized, executed and delivered by Agency,not later than the time set forth in the Schedule of Performance or this instrument shall be void,except to the extent that Developer shall consent in writing to further extensions of time for the authorization,execution,and delivery of this Agreement. After execution by Developer,this Agreement shall be considered an irrevocable offer until such time as such offer shall become void due to the failure of the Agency to authorize,execute and deliver the Agreement in accordance with this Section. 11.16 Counterparts. This Agreement may be executed in counterparts,each of which shall be deemed to be an original,and such counterparts shall constitute one and the same instrument. 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 contemporaneous 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"F",inclusive,attached hereto,are incorporated herein as if set forth in full. IRV#14129 Red O/A _28_ 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 By: By: Assistant Secretary Chairman APPROVED AS TO FORM: BURKE,WILLIAMS& SORENSEN,LLP Agency Counsel "Developer" BURNETT DEVELOPMENT CORPORATION,a California corporation By: Its: By: Its: IRV#14129 Red v3/v4 _29_ C,Q A 3/ 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: PARCEL S: PARCEL Q: PARCEL RI: IRV#14129 Red v3/4 A-2 EXHIBIT"B" SCHEDULE OF PERFORMANCE ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENCE 1. Developer executes and delivers Agreement to November Agency December 18,2002 2. Agency approves Developer's Basic Concept Concurrently with execution of Drawings pursuant to Section Agreement 3. Agency holds public hearing on Agreement December 18,2002 4. Developer prepares and submits to City Developer is already processing Iworking drawings,grading plan and andsoaping-plan-tentative tract map 5.City and AgenGya pprove drawings and plans In accordance w4th S€stien Agency is already negotiating -4. Agency makes offer to acquire Parcel S and leasehold interest on Parcel RI and thereafter negotiates in good faith 7 6.Agency contracts to acquire all parcels of the Within 60 days after Agency Site or holds hearing to consider adoption of a makes offer to acquire Resolution of Necessity and determines whether or not to initiate condemnation 9 7.I17 Agency elects to pursue condemnation, Within 30 days after Agency Agency files action adopts Resolution of Necessity 9 Necessity 8. Agency obtains order of immediate possession Within 30 to 90 days of filing of for Parcel S or the leasehold interest on Parcel action,depending on whether RI the property is unoccupied or occupied,or such later time as the court may order IRV#14129 Red v3/v4 B-1 44D 9. Open Escrow Within two(2)weeks after execution of DDA by Agency 4410. Developer provides Agency with evidence By twelve(12) months after of financial capability or provides such close of escrow evidence for proposed transferee merchant builder 11 1�2. A genGy considers appy ,. 1 Within 30 days after Agency execution of DDA proposed-transferec Within 30 days after receipt b n 13. DG;GlGpeF SoGures firl<anG i 3l-commihABnt-Br Agency „ditio B3 14.Agency approyescr disapp. . F._.._...1...............ent And lender Lip/ithi_„_30 days aft__ receiptby Agency 15. Agency delivers to Developer Preliminary Title Report 4612. Developer approves or disapproves title Within 15 days after delivery of exceptions Preliminary Title Report to Developer 44 13. Agency delivers notice to Developer as to Within 15 days after receipt of whether it will cure disapproved exceptions Developer's notice 4-8 14. Developer submits Site Plan,Planned Within 45 days after opening of Development District, Subdivision Map,and escrow other discretionary actions for entire Site for City approval -1-9 15. City approves or disapproves Sin@ Pan Within 45 days after submittal Planned Development District,and Subdivision of completed appliGation N ten Map (10)months of close of escrow 16. Developer prepares and submits to City and Within on days after approval of Agency pr@liminat3,a4d,thereafteF,fitia site plan or any Glearent thereof di,awings and specifiGatiens prepared in "'''�.1. Gi y and two(21 years of APPorriance 111ith CenGe„ Drawingsa4id Site close of escrow Plan—, nslud+n treatmc for park improvements pursuant to paragraph 5.3 17. Agency approve(or disapprove)preliminary Within times set forth in Section and,thereafter,final drawings and —4.4 specifications,and if disapproves,Developer revises and resubmits preliminary or final drawings 2218. Escrow Agent gives notice of fees,charges, One(1)week prior to Closing and costs to close escrow IRV 414129 Red v3/0 B_2 '4 19. Deposits into escrow by Agency: a)Executed Deed Deeds On or before 1:00 p.m.on the last business day preceding the Closing Date c) Payment of Agency's share of On or before 1:00 p.m. on the Escrow Costs. last business day preceding the Closing Date d)Taxpayer ID Certificate Prior to Closing Date e)PIRPTA Certificate Within 15 days after opening 2420. Deposits into escrow by Developer: a)Purchase Price On or before 1:00 p.m. on the last business date preceding the Closing Date d) Payment of Developer's Share On or before 1:00 p.m. on the of Escrow Costs last business date preceding the Closing Date e) Certificates evidencing Prior to closing, site preparation insurance or construction f) Taxpayer ID Certificate Prior to Closing Date 3 21. Close of escrow for the Site recordation As soon as possible,but not and delivery of documents later than 30 days after Agency acquires possession of Parcel O; Siand RI 622. Developer completes construction of Within eiehteen(181 months phaw park improvements from close of escrow 23. Developer completes construction on the Site. 200 ranuary 1,2005 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 terms 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 Red 0/0 B_3 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 and Avaluxwd in the ti auashed Initial Stud3': • Approval of a Planned Development District(PD-269)in lieu of a change of zone • Approval of Tentative Tract Map No. 30058 Disposition e'o'oP gym. • Construction of park improvements on property to be desienated 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 planned 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. PARKIMPROVEMENTS Developer shall provide at its sole cost park improvements includin =qeKign_grading,sprinkler system seeding and landscaping to the park area shown on Site Map(Exhibit"A-2." 2. PROJECT DEVELOPMENT FEATURES IRV#14129 Red 0/0 C-1 The following discussion provides a description of the main components of the proposed project. proposed development Pencept for the pFej@Gt is shown on Exhibit 3 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 determined during the final design stages of the project. 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 0.8 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 Geld. 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 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 Red v3/v4 C_2 EXHIBIT"D" 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 Palm 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 construction 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 determined 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"); 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. IRV#14129 Red v3/v4 D-1 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 1200. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body,corporate and politic By: Executive Director IRV A 14129 Red v3/v4 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 Red v3/v4 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 1995 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"I"attached hereto and incorporated herein by reference("Site"). 2. The Site is in close proximity the Merged Project Area No.I ("Project Area")specifically described in the Redevelopment Plan for the Project Area which was approved and adopted by the City Council of the City of Palm Springs by Ordinance No. on 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 planning and development of land within the City in such a manner so as to provide for the health,safety and welfare of the residents of the City. That portion of the Agency's 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"). 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 IRV N14129 Red v3/v4 E_I 0, 94 A vs- 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 Red v3/v4 E_2 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, easements,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, free of rubbish,debris and other hazards to persons using the same, and in accordance with all applicable laws, rules,ordinances and regulations of all federal,state,and local bodies and agencies having jurisdiction 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 manner 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 property. .1-,4-Other Rights hts 04;ity in the ovent of anyvie'Ation t, a 1of any of - to,but n9t in lieu of-,a of the rights o remedies the C te 611forco the provisiAng horeef,the Gib,shRll have the right to withhold or rovoko, after giving wriu@n notice of said vielation, any building p@Fmits, eGGuparipy permits, G@Ftificatos of occupanGy,business linonsps aBd RiMilgi matters or approvals pertaining to the Drop@14.,or any pail thereof intereststhergin A'S to the violating PeFson or one threatening violati4a�. * 1 15 NO City Liability The granting of a right of enf pi;e ent to the Ca.a__-not croate-a mpridatefy duty on t4c part of the City to enforce MY Provision Of thig PecdAratipa.The failure of the City to otiferap shall be personally liable to the,Declarant, its Ruppossors,tfansfoF@-.q or assigns, for aRy default or breach by the,G431 under tkiDe61&ratfen: 4-:6 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. 44 IRV 414129 Red v3/v4 E-3 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. 44 1.6 Buildings and Equipment. Any construction,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 building(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. 4.9 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 constructed 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 terms, covenants,restrictions and conditions contained herein,in addition to the other remedies herein provided,the parties hereto 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 IRV#14129 Red v3/v4 E-4 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 manner of said entry and said entry shall only be at such times and in such manners as is reasonably necessary to carry 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 of ten 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 any 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 permitted by California law. 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. 43 ** 12.7 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, IRV#14129 Red v3/v4 E-5 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 lake 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 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 purposes 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 understanding 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 formed. 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 IRV#14129 Red v3/v4 E-6 (2kA 4SV 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 land. 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, 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,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 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 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. 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. IRV#14129 Red v3/v4 E_7 CAA ,9s/ 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 any 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 Kannan Ave, Suite 1050 Irvine,CA 92612 Attn:David J.Aleshire, Esq. Declarant: With Copy to: 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 Red v3/v4 E-8 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 414129 Red v3/v4 E-9 C2� �9s3 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 N 14129 Red v3/v4 E-10 O- kA AsY 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 Red v3/v4 E-I I �lZr1 As S EXHIBIT"1" 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 Red v3/v4 E-12 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 Recorder's 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 Palm 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 Tahquitz 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 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 terns 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. IRV 414129 Red v3/v4 F-1 CRA A 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 construction 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. 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 assignment,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 immediate 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 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 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 IRV 014129 Red OM F-2 OW 5"9 entity constituting Grantee, its successor or the constituent partners of Grantee or any successor of Grantee is ajoint 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 term 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 null 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 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." IRV#14129 Red OM F-3 C�� 6D (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 term 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. 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 90Dday period, such holder shall have such additional time as reasonably necessary to remedy or cure such default IRV 414129 Red v3/v4 F-4 n / 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(wills 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 manner 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 construction 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 construct, 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 constraLied thereon, and any unpaid rent or other charges payable to it under 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 permitted 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 permitted 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 funds 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. IRV#14129 Red v3/v4 F-5 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. IRV 414129 Red 0/0 F-6 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: I. Grantee expressly understands and agrees that the terms of this Deed shall be deemed to be covenants running 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: IRV#14129 Red v3/v4 F_7 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: IRV#14129 Red OM F_8 ATTACHMENT NO. I DESCRIPTION OF PARCELS S,Q and R1 That certain real property located in the City of Palm Springs, County of Riverside, State of California described as follows: IRV#14129 Red v3/v4 F-9 DISPOSITION AND DEVELOPMENT AGREEMENT By and Between COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS and BURNETT DEVELOPMENT CORPORATION, a California corporation IRV#14129 Red 0/0 TABLE OF CONTENTS Page No. 1. DEFINITIONS................................................................................................................................. I 1.1 Agreement.......................................................................................................................... 1 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............................................................................................................................2 1.13 Project................................................................................................................................2 1.14 Project Area........................................................................................................................2 1.15 Redevelopment Plan...........................................................................................................2 1.16 Schedule of Performance...................................................................................................2 1.17 Scope of Development.......................................................................................................2 1.18 Site. ....................................................................................................................................3 2. PURPOSE OF AGREEMENT.........................................................................................................3 3. REPRESENTATIONS AND WARRANTIES. ...............................................................................3 3.1 Developer Representations and Warranties........................................................................3 (a) Identification........................................................................................................3 (b) Qualifications.......................................................................................................3 (c) Litigation..............................................................................................................3 (d) No Possessory Interests........................................................................................4 (e) No Default............................................................................................................4 (f) No Violation. .......................................................................................................4 (b) No Bankruptcy.....................................................................................................4 (h) No Misrepresentation...........................................................................................4 (i) Disclosure............................................................................................................4 0) Due Execution......................................................................................................4 (k) No Extraneous Consideration..............................................................................4 3.2 Agency Representations and Warranties............................................................................4 IRV#14129 Red v3/v4 NA � �� (a) No Approvals.......................................................................................................4 (b) Due Execution......................................................................................................4 (c) Governmental Approvals.....................................................................................4 4. CONSTRUCTION OF THE PROJECT...........................................................................................5 4.1 Development in Accordance with Plans.............................................................................5 4.2 Evolution of Development Plans........................................................................................5 4.3 Other Governmental Permits..............................................................................................5 4.4 Approval by Agency..........................................................................................................5 4.5 Agency Assistance.............................................................................................................6 4.6 Cost of Construction. .........................................................................................................6 4.7 Construction Schedule;Reports.........................................................................................6 4.8 Plans and Specifications.....................................................................................................6 4.9 Nondiscrimination During Construction............................................................................6 4.10 Rights of Access.................................................................................................................6 4.4-1 *2 4 11 Use In 4 cGGr-dam;p with R .1 1 L'' r Ti eat plan; .ndi 4 4.11 Easements...........................................................................................................................6 4-13 4.12 Certificate of Completion...................................................................................................6 5. ACQUISITION AND DISPOSITION OF THE SITE.....................................................................7 5.1 Acquisition of Parcels S,Q and RI....................................................................................7 (a) Negotiated Purchase of Parcel S and Leasehold Rights of RI.............................7 (b) Condemnation......................................................................................................7 5.2 Cost Exceeding Fair Market Value....................................................................................7 5.3 Sale of Parcel S..................................................................................................................8 (a) Conveyance of Parcel S to Developer upon Acquisition by Eminent Domain....8 (b) Purpose of Sale....................................................................................................9 5.4 Sale of Parcel Q;and Parcel RI n And,,a�,ccl Scl e I z .............................................................9 (a) Parcel Q. ..............................................................................................................9 (b) Parcel RI..............................................................................................................9 5.5 Escrow for Sale of Parcels S, Q and RI.............................................................................9 5.6 Conditions to Close of Escrow...........................................................................................9 (a) Developer's Conditions to Closing......................................................................9 (b) Agency's Conditions to Closing........................................................................ 10 5.7 Both Parties' Conditions to Closing................................................................................. 10 IRV tl14129 Red v3/v4 _ii_ k4 A �� 5.8 Conveyance of the Site..................................................................................................... 10 (a) Time for Conveyance......................................................................................... 10 (b) Escrow Agent to Advise of Costs...................................................................... 11 (c) Deposits By Agency Prior to Closing................................................................ 11 (d) Deposits By Developer Prior to Closing...............................:............................ I I (e) Recordation and Disbursement of Funds........................................................... 11 5.9 Title Matters..................................................................................................................... 1 I (a) Condition of Title............................................................................................... 11 (b) Exclusion of Oil,Gas and Hydrocarbons.......................................................... 11 (c) Agency Not to Encumber Site. .......................................................................... 12 (d) Approval of Title Exceptions............................................................................. 12 (e) Title Policy......................................................................................................... 12 5.10 Evidence of Financial Capability..................................................................................... 12 5.11 Condition of Site.............................................................................................................. 13 (a) Disclaimer of Warranties................................................................................... 13 (b) Right to Enter Site,Indemnification.................................................................. 13 (c) Hazardous Materials.......................................................................................... 13 5.12 Costs of Escrow................................................................................................................ 15 (a) Allocation of Costs. ........................................................................................... 15 (b) Proration and Adjustments................................................................................. 15 (c) Extraordinary Services of Escrow Agent........................................................... 15 (d) Escrow Agent's Right to Retain Documents. .................................................... 16 5.13 Termination of Escrow..................................................................................................... 16 (a) Termination........................................................................................................ 16 (b) Opportunity to Cure........................................................................................... 16 5.14 Responsibility of Escrow Agent....................................................................................... 16 (a) Deposit of Funds................................................................................................ 16 (b) Notices............................................................................................................... 16 (c) Sufficiency of Documents.................................................................................. 16 (d) Exculpation of Escrow Agent............................................................................ 17 (e) Responsibilities in the Event of Controversies. ................................................. 17 6. SALE OR TRANSFER OF THE PROJECT.................................................................................. 17 6.1 Transfer Defined.............................................................................................................. 17 6.2 Agency Approval of Transfer Required........................................................................... 17 6.3 Release:Assumption........................................................................................................ 18 6.4 Relocation Assistance. ..................................................................................................... 18 IRV 414129 Red 0/0 -iii- �2 ,� �47D 7. INSURANCE AND INDEMNIFICATION................................................................................... 18 7.1 Insurance.......................................................................................................................... 18 (a) Comprehensive General Liability Insurance...................................................... 18 (b) Worker's Compensation Insurance..................................................................... 18 (c) Automotive Insurance........................................................................................ 18 (d) Builder's Risk Insurance. ................................................................................... 18 7.2 Indemnification................................................................................................................ 19 8. RIGHTS OF HOLDERS OF APPROVED SECURITY INTERESTS IN SITE. .......................... 19 8.1 Definitions........................................................................................................................ 19 8.2 Limitation on Encumbrances........................................................................................... 19 8.3 Developer's Breach Not Defeat Mortgage Lien...............................................................20 8.4 Holder Not Obligated to Construct or Complete Improvements......................................20 8.5 Notice of Default to Mortgagee Deed of Trust or Other Security Interest Holders. .......20 8.6 Right to Cure....................................................................................................................20 8.7 Agency's Rights upon Failure of Holder to Complete Improvements..............................20 8.8 Right of Agency to Cure Mortgage.Deed of Trust or Other Security Interest Default. ..21 8.9 Right of the Agency to Satisfy Other Liens on the Property After Conveyance of Title. 22 9. USE OF THE SITE........................................................................................................................22 9.1 Use of the Site..................................................................................................................22 4414 **2 9_2 Use In Accordance with Redevelopment Plan;Nondiscrimination..............................229 9'2 No Incengistga Uges. 31 o 3 Obligation to Refrain rrom ry 9.4 9.3.................................Effect of Covenants. 23 9-5 9_4 Taxes and Assessments and Liens....................................................................................23 10. ENFORCEMENT. .........................................................................................................................23 10.1 Defaults.Right to Cure and Waivers................................................................................23 10.2 Agency Defaults...............................................................................................................24 10.3 Notice of Default..............................................................................................................24 10.4 Remedies..........................................................................................................................25 10.5 Agency's Right to Terminate............................................................................................25 10.6 Rights and Remedies are Cumulative. .............................................................................25 10.7 Specific Performance.......................................................................................................25 10.8 Attomey's Fees.................................................................................................................25 11. MISCELLANEOUS.......................................................................................................................26 IRV 814129 Red v3/v4 _iv_ /,/4 �97t 11.1 Notices. ............................................................................................................................26 11.2 Applicable Law and Forum..............................................................................................26 11.3 Acceptance of Service of Process. ...................................................................................26 11.4 Conflicts of Interest..........................................................................................................26 11.5 Nonliability of Agency Officials and Employees. ...........................................................26 11.6 Enforced Delay: Extension of Times of Performance....................................................27 11.7 Books and Records...........................................................................................................27 (a) Maintenance of Books and Records...................................................................27 (b) Right to Inspect..................................................................................................27 11.8 Modifications...................................................................................................................27 11.9 Merger of Prior Agreements and Understandings............................................................27 11.10 Binding Effect of Agreement...........................................................................................27 11.11 Assurances to Act in Good Faith......................................................................................27 11.12 Severabilitv......................................................................................................................27 11.13 Internretation....................................................................................................................28 11.14 Entire Agreement,Waivers and Amendments.................................................................28 11.15 Time for Acceptance of Agreement by Agency...............................................................28 11.16 Counterparts.....................................................................................................................28 11.17 Integration........................................................................................................................28 11.18 Exhibits............................................................................................................................28 EXHIBIT"A411A-111 SITE MAP.........................................................................................................................A-1 EXHIBIT"A-2" LEGAL DESCRIPTION OF THE SITE.........................................................................A4 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-I EXHIBIT"E" DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS ................................................................................................................E-1 EXHIBIT"F" GRANT DEED...................................................................................................................F-1 IRV#14129 Red v3/v4 _y_ EXHIBIT "B" TO EXCLUSIVE AGREEMENT TO NEGOTIATE MAPS OF THE PROPERTY I ED. 3/4' I.P. OPEN AMVACANT�„ N 89.52'35w 2082.00 EXIST. DWA WELL SITES m Z28 N 89'52'35w 1112.00 N 89.52'35w 970.00 N 89'52'35w 650.00 1 LOT § 0� LOT 19 N 0909'0"E T O PARCEL 25 2 <�0 �Q^� PORTION LOT 9 Q 1 15 A!W NY-NO-01E , Q V� ` TR. 17642-1 31 I„ o �o i.,_ e MB. 122/88-90 24• PARCEL Q �c° 2 6 ANI NO•508-0N Q - Z� VACANT '{ 2_ LOT. C_ _ ., i { . __, _rl {; N e9•s2'35w 1t6zss COYOTE SPRINGS APARTMENTS `I NOT A PART ED. NNL k TIN I 1 PARCEL R "S x E NORTH HALF VACANT GIRT ROADS/` ] r_, TRAILS (TYP) LOT 1 TR. 2 6943-1 :I I;' AOL V MB. 235/84-85 APH NH80-022 �i f ZONE C � Ili G I I V w � I I SNP L11L _ m I I o, N Y Ali. m�'EjI o 1 RS 65/33 o EXIST. M991LE IHDME PARK `V II g b I PARCEL R AM N►•f00-007 I I ry 0 I I 70 I ,ObN1 9 I I LOT 1 tP Iry0, ".6 I 1 TR. 17642-1 MB. 122/88-90 0• 4' I I I I I I I I N DO.09'07'E 9 14. II 147.001 L 4�G 400 N 89'52'35"W �`ta I 1152A0 0�•7 52. N 89-52'35w 2150.93 FD. NAIL k TIN 2 I kA A�� SUMMARY REPORT: DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY AND BURNETT DEVELOPMENT COMPANY DECEMBER 2002 INTRODUCTION Before real property acquired by a Community Redevelopment Agency with tax increment proceeds may be sold or leased, the transaction must be approved by the Agency Board in accordance with California Health and Safety Code Section 33433. This Section requires a "Summary Report", which describes and specifies certain information in regard to the proposed transaction, be available for public inspection. DESCRIPTION OF THE PROPOSED AGREEMENT Site and Interests to be Conveyed The Site consists of two parcels of land combined into a single parcel of land of approximately 41.39 acres by Lot Line Adjustment No. 99-12. The Site is located near the northwest corner of San Rafael Road and North Sunrise Way in the City of Palm Springs. The Developers of the Property, Burnett Development Company, are seeking to acquire the parcels at fair market value to develop up to 163 market rate homes. Proposed Development The Purchaser is developing a series of master-planned subdivisions that shall total over 400 homes. The Palm Springs East subdivision was approved in May, 2002 and shall consist of up to 238 homes. Palm Springs West, built on land acquired from the Agency, shall consist of 163 homes. The development is a fair market transaction, and has not received any density bonus or other development relief through the entitlement process. This project helps the City meet its requirements to provide housing under the Regional Housing Needs Allocation process under California Law. Financing The Developer will privately finance the construction of the subdivisions and all of the public improvements. No public financing is required. Agency Responsibilities The Agency agrees to sell the Developer the 41.38 acres for an aggregate$1,080,000. A portion of the sale proceeds, $465,000, shall be reimbursed to the City of Palm Springs as its share; the remainder shall accrue to the Low-and Moderate-Income Housing Fund. The Agency shall obtain a release of the 19.17 acre parcel from its current leaseholder, Santiago Sunrise Corporation, and shall process a Lot Line Adjustment to combine the parcel with the adjacent parcel. Developer Responsibilities The developer commits to developing the project as proposed, including the architectural upgrades, noise buffering, quality landscaping, public improvements, and other components. Agency's other standard terms and conditions, including non-discrimination and maintenance covenants, and other terms and conditions remain as in Disposition and Development Agreement for Developer. COST OF AGREEMENT TO THE AGENCY The Agency shall receive an amount of $1,080,000 from the Developer for the parcels. It shall reimburse the City of Palm Springs $465,000 for the proceeds of the original Parcel. �kA 4 7s NOTICE OF JOINT PUBLIC HEARING NOTICE IS HEREBY GIVEN, that the City of Palm Springs and the Community Redevelopment Agency of the City of Palm Springs will hold a Joint Public Hearing in the City Council Chambers, located at 3200 Tahquitz Canyon Way, Palm Springs, California 92262, beginning at 7:00 p.m., Wednesday, December 18, 2002, to consider the following: A Disposition and Development Agreement with Burnett Development Company of Newport Beach, California, involving the Sale of a 41.38 Acre Parcel from the Community Redevelopment Agency, located north of San Rafael Road and West of Sunrise Way Palm Springs, California 92262 The Community Redevelopment Agency of the City of Palm Springs ("Agency") proposes to sell to Burnett Development ("Burnett") a 41.38 parcel for the amount of $1,080,000. This is a market rate transaction based on an appraised value of the property. Burnett proposes to construct market-rate housing (single family homes) on the land. A 22.21 acre portion of the site was acquired from the City of Palm Springs by the Agency to effectuate the deal. The parcel was acquired by the City of Palm Springs beginning in the 1960's and once encompassed a total of 100 acres. In 1982, the Sunrise Village Mobile Home Park and the Sunrise Norte subdivision were developed. Coyote Run Apartments was developed in 1992. The Agency acquired the land under the Park from the City in 1995. The remaining land, approximately 7.75 acres, is proposed to be part of and expansion of Coyote Run and is covered in another DDA with a non-profit housing developer. All interested persons are invited to attend the Public Hearing and express opinions on the item listed above. If you challenge the nature of the proposed action in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing described in this notice, or in written correspondence delivered to the City Clerk, at the address listed above, at or prior to the Public Hearing. Members of the public may view this document and all referenced documents in the Community Redevelopment Department, City Hall, and submit written comments to the Community Redevelopment Agency at or prior to the Community Redevelopment Agency Meeting at or prior to the public hearing described in this notice. Further information, including a copy of the DDA, Summary Report, and Resolution, prepared in accordance with Health and Safety Code Section 33433, is available in the Office of the City Clerk, at the above address. PATRICIA A. SANDERS, City Clerk PUBLISHED: December 3 and December 10, 2002 FREE RECORDATION REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS P.O. Box 2743 Palm Springs, CA 92263-2743 Attn: Engineering Division Filing Fee Exempt per Government Code 6103 (For Recorder's Use Only) OWNER'S CERTIFICATE FOR LOT LINE ADJUSTMENT / X / WAIVER OF PARCEL MAP IN ACCORDANCE WITH CITY OF PALM SPRINGS COUNTY OF RIVERSIDE, STATE OF CALIFORNIA No. LLA 99-12 LOT LINE ADJUSTMENT We,the undersigned,do hereby certify that we are all and the only parties having any record title interest in the property as described in the attached description and plat and do hereby approve of, join in, and consent to the preparation and execution of this certificate for Lot Line Adjustment as described in the attached description and plat. The Community Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic STATE OF CALIFORNIA } } SS COUNTY OF RIVERSIDE } On before me, date 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/che/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) acted, executed the instrument. Witness my hand and official seal. (SEAL) Signature of Notary e69 R1 LOT LINE ADJUSTMENT LEGAL DESCRIPTION NO. LLA 99-12 EXISTING LEGAL DESCRIPTION PARCEL1 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, AND TOGETHER WITH LOT"C" OF SAID TRACT NO. 17642-1 EXCLUDING THAT PORTION OF SAID LOT "C" DESCRIBED AS PARCEL 2 IN DOCUMENT RECORDED APRIL 25, 1996 AS INSTRUMENT NO. 148930, RECORDS OF SAID COUNTY, AND ALSO EXCLUDING THE EASTERLY 920.00 FEET OF SAID LOT"C" DEDICATED AS A PUBLIC RIGHT-OF-WAY BY ACTION OF THE CITY COUNCIL OF PALM SPRINGS THROUGH RESOLUTION NO. 17490 ADOPTED APRIL 17, 1991, RECORDED MARCH 16, 1992 AS INSTRUMENT NO. 87943, RECORDS OF SAID COUNTY. PARCEL2 LOT 1 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, AND TOGETHER WITH THAT PORTION OF LOT "C" OF SAID TRACT NO. 17642-1 DESCRIBED AS PARCEL 2 IN DOCUMENT RECORDED APRIL 25, 1996 AS INSTRUMENT NO. 148930, RECORDS OF SAID COUNTY. ( k� LOT LINE ADJUSTMENT LEGAL DESCRIPTION NO. LLA 99-12 APPROVED LEGAL DESCRIPTION PARCEL 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 890 46' 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 000 15' 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 890 46' 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 890 46' 28" WEST 50.00 FEET TO THE POINT OF BEGINNING. PARCEL 2 LOT 1 OF TRACT NO. 17642-1 IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, CALIFORNIA, AS PER MAP ON FILE IN BOOK 122 PAGES 88, 89 AND 90 OF MAPS, IN THE OFFICE OF THE RECORDER OF SAID COUNTY, TOGETHER WITH PARCEL 2 AS DESCRIBED IN DOCUMENT RECORDED APRIL 25, 1996 AS INSTRUMENT NO 148930, RECORDS OF SAID COUNTY. EXCEPT THE NORTHERLY 731.00 FEET OF SAID LOT 1 AND EXCEPT THE NORTHERLY 731.00 FEET OF SAID PARCEL 2 OF INSTRUMENT NO. 148930. ,NU LAND 4„' rLa1LL1/y�T �L' o� �ZB' OZ Pete Billington PLS. 4 52 f ct' Z o Date NO.4152 p PB/ct „ ' a.09-30-04 .k 03-25-02 �'`:��, \`r N,4 A 71 FOR CUh�✓E�BEA.e/NG�D/STgNCE DATA SEE <SHEET 2 30¢ ols'0 �° �' 5 1 , /0 ro4 1 f APN. 669-SGO-025� C� 9 7 ,/Q.' 3 O k� O P.o.a. 09. PARCEL / ? Q (" lJfL FTEO L/WE I � .ST.✓•/C' I 1 �' 6� 0 2�08b.B o W e ^ q �Q Q y ITV ,90✓(J.STEO G/,yam 001 qe� i /iea.aa 0 ha PPS. b ;kL LANOsG / � v 1 Z�� h1q6 g Nn i52E Af aTFOF C AUF�� NB9°tlG'28"W .SAN RAFAEL O,P/VE CITY OF PALM SPRINGS DEPARTMENT OF PUBLIC WORKS ENGINEERING DIVISION LOT LINE ADJUSTMENT LEGAL DESCRIPTION P&931 LOT 1, A PORTION OF LOT 9 AND A PORTION CITY ENGINEER R.C.E. OF LOT "C", PER TRACT No. 17642-1, M.B. DESIGN BY SCALE FILE NO. 122/88-90 AND TRACT NO. 26943-1, /'.&. /"=400' l6A 99-/2 M.B. 235/84-85. CHECKED BY SHEET NO. Symbol Delta/Bearing Radius Length/Distance �1 N 890 46' 28" W 120.00' O2 N 550 07' 44" E 12.49' 03 170 55' 28" 111.00, 34.73' ® N 370 12' 16" E 15.43' Q5 N 000 15' 14" E 100.00, © N 000 15' 14" E 139.84' �7 080 01' 41" 291 .00' 40.77' ® 820 10' 03" 25.00' 35.85' 09 120 54' 21" 320.98' 72.30' ® N 000 15' 14" E 125.53' �1 N 000 15' 14" E 147.00' ® N 890 46' 28" W 31.00' �3 350 40' 36" 389.00' 242.22' ® N 890 46' 28" W 48.00' O N 000 13' 32" E 99.00' rj C)c0���gILLIryG�9�c LL NO.4152 i. p.06-3 04 rFOFCP..\�� • /G CITY OF PALM SPRINGS DEPARTMENT OF PUBLIC WORKS ENGINEERING DIVISION LOT LINE ADJUSTMENT LEGAL DESCRIPTION erg,9a/ CITY ENGINEER R.C.E. SEF .sf/EET / DESIGN BY SCALE FILE NO. [LA 99-/2' CHECKED BY SHEET NO. z of z RESOLUTION NO. OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT WITH BURNETT COMPANIES OF NEWPORT BEACH, CALIFORNIA FOR THE PURCHASE AND DEVELOPMENT OF TWO AGENCY-OWNED PARCELS TO FACILITATE THE DEVELOPMENT OF A SINGLE-FAMILY HOME DEVELOPMENT IN AND NEAR MERGED PROJECT AREA#1 (FORMERLY PROJECT AREA#9-C) WHEREAS, the Community Redevelopment Agency of the City of Palm Springs, California ("Agency") is constituted under the Community Redevelopment Law (California Health and Safety Code Section 33000 et. seg.) to carry out the purpose of redevelopment in the City of Palm Springs ("the City"); and WHEREAS the Agency does own a parcel of land totaling approximately 40 acres adjacent to Merged Project Area #1, formerly known as the Project Area #9-C, which is divided between a developed mobile home park and a 19.17+ acre vacant parcel, which it acquired from the City of Palm Springs in November, 1995; and WHEREAS the City of Palm Springs conveyed its 22.21 acre parcel to the Agency via an Agreement for Purchase and Sale of Real Property dated July 18, 2001, to facilitate the development of the combined 41.38+ acre parcel with market rate housing to ensure a demographic balance in the area; and WHEREAS a number of developments have been constructed on the entire 100 acre City-owned parcel which have restrictive covenants on them to preserve affordability, including the Sunrise Village Mobile Home Park, Coyote Run Apartment, and the Sunrise Norte single-family home development; and WHEREAS the Agency desires to sell the two parcels to Burnett Companies so that it can 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 Project Area; and WHEREAS, Section 33430 of the Community Redevelopment Law allows that an agency may, "for purposes of redevelopment, sell, lease, for a period not to exceed 99 years, exchange, subdivide, transfer, assign, pledge, encumber by mortgage, deed of trust, or otherwise, or otherwise dispose of any real or personal property or any interest in property;" and WHEREAS, the purchase of the parcel by the Developer is at fair market value and the DDA therefore does not contain any Agency financial assistance to the project; and WHEREAS, a Notice of Public Hearing concerning the Disposition and Development Agreement was published in accordance with applicable law; and /1 a WHEREAS, the Agency has considered the staff report, and all the information, testimony and evidence provided during the public hearing on December 18, 2002. NOW, THEREFORE, BE IT RESOLVED by the Community Redevelopment Agency of the City of Palm Springs as follows: SECTION 1. The above recitals are true and correct and incorporated herein. SECTION 2. Pursuant to the California Environmental Quality Act (CEQA), the Community Redevelopment Agency finds as follows: a) In connection with the approval of the DDA, the eastern portion of the project received approval of a Mitigated Negative Declaration in May, 2002 based on the preparation of an Initial Study and the recommendation of the Planning Commission. Mitigation measures are included in the project design and adopted as part of the Conditions of Approval for the Project. The remaining portion of the project site, Palm Springs West, received approval of a Mitigated Negative Declaration on December 18, 2002 based on the preparation of an Initial Study and the recommendation of the Planning Commission. Mitigation measures are included in the project design and adopted as part of the Conditions of Approval for the Project. b) The Agency finds that the Planning Commission adequately discussed the potential significant environmental effects of the proposed project (land use, traffic/circulation, parking, air quality, noise, aesthetics, geology/soils, water quality, drainage, public utilities, public safety, archaeological/historic resources and light and glare). The Community Redevelopment Agency further finds that the Mitigated Negative Declaration reflects its independent judgment. SECTION 3. The Developer proposes to develop at least two subdivisions of 238 homes and 163 homes, with landscaping, greenbelts and other on-site improvements. SECTION 4. The Developers are required to make certain street improvements in keeping with City codes. Such offsite improvements are imperative to this project, such as reconstructing curb, gutter and sidewalks along Sunrise Way. This project improves a blighted parcel near Merged Redevelopment Project Area #1 and will increase tax increment to the Agency and property tax and sales tax collections to the City through the development of new market- rate homes in an underdeveloped portion of the city. SECTION 5. The Agency does hereby find and determine as follows: /Q� (a) City acquired Parcel Q in 1979 by Deed #252689C_ )9_dz from the County Water District for the purposes of constructing low-income housing on the site. Parcel Q was part of a 100-acre site acquired for that purpose. Over the past 35 years, several low- income or deed-restricted projects have been constructed on the site, including Sunrise Norte, Coyote Run, and Sunrise Village Mobile Home Park. (b) In 1995, the Agency acquired an adjacent parcel from the City, ("Parcel R") which contains the Sunrise Village Mobile Home Park and a vacant 19.17 acres, for a total of $1,510,000. The Agency has now proposed moving the lot line on Parcel R to add the unused portion of Parcel R to Parcel Q, and convey the new combined Parcel Q (Combined Parcel) to Burnett for the purposes of constructing market-rate housing. The fee interest in the remaining Parcel R, the Mobile Home Park, may be sold to a non-profit corporation specializing in renovating and managing mobile home parks through a future Disposition and Development Agreement. (c) The DDA effectuates the purposes of the Community Redevelopment Law as it is intended to eliminate blight and promote the health, safety and general welfare of the people of Palm Springs. SECTION 6. The proposed project is consistent with the Implementation Plan for Merged Project Area #1 (formerly Project Area #9-C), and this project will increase tax increment and spur new residential activities in the project area. It will increase the City's commercial sector by developing a new population center in the City, creating new shoppers for the retailers in the north end of Palm Springs. SECTION 7. The Developer shall receive a small amount of additional acreage as part of the DDA, called Parcel S, located north of the Coyote Run Apartments site and adjacent to Parcel Q. In order to maintain the fair market transaction, the Developer shall construct at its cost park improvements at a newly designated park site along Sunrise Way. The value of the parcel and park improvements is estimated to be $40,000. SECTION 8. The proceeds of the land sale shall be divided as follows, based on the appraised value of Parcels Q and R: the Low- and Moderate-Income Housing Fund of the Community Redevelopment Agency shall receive $615,000, less the good faith deposit, and the City of Palm Springs shall receive $465,000 per the terms of the Agreement for Purchase and Sale of Real Property dated July 18, 2001. SECTION 9. Based on foregoing reasons, this DDA is hereby approved and incorporated herein by this reference. SECTION 10. The Chairman, or his designee, is hereby authorized to execute on behalf of the Agency the Disposition and Development Agreement and other documents necessary to the Agreement, and make minor changes as may be deemed necessary, in a form approved by Agency Counsel. ADOPTED this day of , 2002. AYES: NOES: ABSENT: ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA By Assistant Secretary Executive Director REVIEWED &APPROVED AS TO FORM Proof of Publication In Newspaper STATE OF CALIFORNIA County of Riverside Emma Reyna says: 1. I am a citizen of the United States, a resident of the City of Palm Springs, County of Riverside, State of California, and over the age of 18 ears. NOTICE OFJOIN GIVEN, that the City of Palm 2. I am the Research & Production Springs and the Community Redevelopment Agency of the City of Palm Springs will hold a Joint Public Hearing in the City Assistant of The Public Record, a Council Chambers, located at 3200 Tahquitz Canyon Way, newspaper of general circulation printed Palm Sprigs, California 92262, beginning at zoo p.m.. Wednesday,December 18,2002,to consider the following-_- and published in the City of Palm- A Disposition and Development Agreement with Burnett Springs, County of Riverside, State of Development Company of Newport Beach,California,Involving the Sale of a 41.38 California. Said The Public Record is a Acre Parcel from the Community Redevelopment Agency, newspaper of general circulation as that located norm of San Rafael Road and West of Sunrise Way term is defined in Government Code Palm Springs,California 92262 Tice Community Redevelopment Agency of the City of section 6000, its status as such having Palm Springs ("Agency") proposes to sell to Burnett been established b judicial decree of the Development ("Burnett") a 41.38 parcel for the amount of y $1,080,000. This Is a market rate transaction based on an Superior Court of the State of California in appraised value of the property. Burnett proposes to construct mantel-rate housing(single family homes)on the land.A 22.21 and for the County of Riverside in acre portion of the site was acquired from the City of Palm Proceeding No. Indio 49271, dated Springs by the Agency to effectuate the deal March 31, 1987, entered in Judgment The parcel was acquired by the City of Palm Springs Book No. 129, 355, on March 31, beginning in the 1960's and once encompassed a total of 100 page acres. In 1962,the Sunrise Village Mobile Home Park and the 1987 Sunnse Node subdivision were developed.- Coyote Run Apartments was developed to 1992. The Agency acquired the 3. The Public Record is a newspaper of land under the Park from the City in 1995. The remaining land, general circulation ascertained and approximately 7.75 acres,is proposed tobe pan ol and expan- sIon of Coyote Run and Is covered in another DDA with a non- established in the City of Palm Springs n probt housing developer. the County of Riverside, State of All Interested persons are thereof to attend the Public Heading and express opinions on the Item listed above. If you California, Case No. R IC 358286, Filed challenge the nature of the proposed action in court,you may Ire limited to raising only those issues you or someone else June 8, 2001. raised at the Public Hearing described in this notice,or in wrtU 4. The notice, of which the annexed is a ten correspondence:delivered to the City Clerk,at the address listed above,at or prior to the Public Hearing, true printed copy, was published in the Members of the public may view this document and all referenced documents in the Community Redevelopment newspaper on the following publication Depadmerl, CPo/Hell, and submit written comments to the dates to Wit. Community Redevelopment Agency at or prior to the December 3, 2002 Community Redevelopment Agency Meeting at or prior to the public hearing described in this nohce. December 10, 2002 Further information, including a copy of the DDA, Summary Report,and Resolution,prepared in accordance with Health and Safely Code Section 33433, is available in the I certifyunder penalty of perjury that the Office of the City Clerk,at the above address. p Y p 'J /s/PATRICIAA.SANDERS,City Clerk above is true and correct. December 3,10,2002 Dated at Palm Springs, California, this 10ih - — - day of December 2002. Emma Reyna f J� Research & Production AssistantYyyv RESOLUTION NO. OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING LOT LINE ADJUSTMENT NO. LLA 99-12, MOVING THE NORTHERN 731.00 FEET OF LOT 1 OF TRACT 17642-1 TO A PORTION OF LOT 9 OF TRACT 17642-1 IN THE CITY OF PALM SPRINGS, OWNED BY THE COMMUNITY REDEVELOPMENT AGENCY BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY of the City of Palm Springs, California, that Lot Line Adjustment No. LLA 99-12, moving the northern 731.00 of Lot 1 of Tract 17642-1 to a portion of Lot 9 of Tract 17642-1 in the City of Palm Springs, owned by the Community Redevelopment Agency, in a form acceptable to the Agency Counsel, is approved. ADOPTED this day of 12002. AYES: NOES: ABSENT: ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA By Assistant Secretary Executive Director REVIEWED & APPROVED AS TO FORM RESOLUTION NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, CONCURRING WITH THE COMMUNITY REDEVELOPMENT AGENCY REGARDING THE APPROVAL OF A DISPOSITION AND DEVELOPMENT AGREEMENT WITH BURNETT DEVELOPMENT COMPANY NOW THEREFORE BE IT RESOLVED by the City Council of the City of Palm Springs that it concurs with the action of the Community Redevelopment Agency regarding the approval of a Disposition and Development Agreement with Burnett Development Company. ADOPTED this day of .12002. AYES: NOES: ABSENT: ATTEST: CITY OF PALM SPRINGS, CALIFORNIA By City Clerk City Manager REVIEWED &APPROVED AS TO FORM cl A4 / / -