HomeMy WebLinkAbout7/10/2002 - STAFF REPORTS (5) DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY,
a public body, corporate and politic
and
SUNRISE HACIENDA PARTNERS,
a California Limited Partnership
(Sunrise Hacienda)
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (`Agreement') is entered
into as of the date executed by the Agency, by between the PALM SPRINGS COMMUNITY
REDEVELOPMENT AGENCY, a public body, corporate and politic (`Agency"), and
SUNRISE HACIENDA PARTNERS, a California Limited Partnership (`Developer"). The
parties agree as follows:
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I. (&100) PURPOSE OF THE AGREEMENT
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A. (5101) Purpose of the Agreement.
This Agreement and the Attachments hereto are intended to effectuate the
Redevelopment Plan for the Palm Springs Redevelopment McLgecl Project Area No. 1 (the
"Redevelopment Project Area") by providing for the disposition and development of a-perHen of
property owned by the Agency located near the Redevelopment Project Area designated
herein as the "Site" and the development of the "Project' thereon (as those terms are defined
herein). The development of the Site pursuant to this Agreement, and the fulfillment generally
of this Agreement, are in the vital and best interests of the City of Palm Springs (`City") and the
welfare of its residents, and in accordance with the public purposes and provisions of applicable
federal, state and local laws and requirements.
This Agreement is intended to set forth a comprehensive plan for the acquisition and
redeveleleno- develoPment of affordable housing on the Site, including land assembly and
the design, processing, financing and rehabilitation construction necessary to complete the
Project on the Site. The Project, as fin-ther defined below, will provide ft� residential rental
units available at rents affordable to very low and low income households.
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U. (&200) DEFINITIONS
The following terms as used in this Agreement shall have the meanings given unless
expressly provided to the contrary:
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A. (&201) Affordable Rent.
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The term "Affordable Rent" shall have the meaning prescribed for that term in Health
and Safety Code Section 50053(b) and the regulations promulgated pursuant to or incorporated
therein, including, without limitation, any applicable regulations promulgated pursuant to Health
and Safety Code Section 50093 (i.e., for Very Low Income Households, a rent, including a
reasonable utility allowance, not exceeding the product of 30 percent times 50 percent of the area
median income adjusted for family size appropriate for the unit).
LD. (§202) Agency Financial Assistance
The term "Agency Financial Assistance" shall mean the total amount of the financial
assistance made by Agency to Developer to fund the acquisition of the Site and development
costs for the Project, as further described in Section 403 below.
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-C. (§203) Reserved.
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D. (§204) Agreement.
The term "Agreement" shall mean this entire Disposition and Development Agreement,
including all attachments, which attachments are a part hereof and incorporated herein in their
entirety, and all other documents incorporated herein by reference.
&. (§205) Certificate of Completion
The term "Certificate of Completion" shall mean that document prepared in accordance
with Section 514 of this Agreement, in the form attached as Attachment No. 7, which shall
evidence that the construction and development of the improvements required by this Agreement
have been satisfactorily completed
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E. (§206) City,
The term "City" shall mean the City of Palm Springs, a chartered municipal corporation.
fi. (§207) Closing
The tern "Closing" or "Closing Date" shall mean the closing of the Escrow for the
conveyance of the Site from Agency to Developer by the Escrow Agent's distributing the funds
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and documents received through Escrow to the party entitled thereto as provided herein, which
closing shall occur on or before the date established in the Schedule of Performance.
$. (5208) Days.
The term "days" shall mean calendar days and the statement of -,my time period herein
shall be calendar days, and not working days, unless otherwise specified
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1 (6209) Deed.
The term "Deed" or "Grant Deed" shall mean that Grant Deed in substantially the form
attached hereto as Attachment No. g 5 by which Agency as Grantor will convey fee title to the
Site to Developer as Grantee.
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,I. (&210) Deed of Trust
The term "Deed of Trust" shall refer to that deed of trust and assignment of rents attached
hereto as Attachment No. S -, securing Developer's obligations to complete and operate the
Project.
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K. (§211) Effective Date.
The Effective Date of this Agreement shall occur after public hearing and approval
hereof by the Agency, and shall mean the date this Agreement is executed on behalf of Agency.
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L. (§212) Enforced Delay.
The term "Enforced Delay" shall mean any delay described in Section 903 caused
without fault and beyond the reasonable control of a party, which delay shall justify an extension
of time to perform as provided in Section 903.
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M. (&213) Escrow.
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The term "Escrow" shall mean the escrow established pursuant to this Agreement for the
conveyance of title to the Site fi-om Agency to Developer
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NY (§214) Escrow Agent.
The term "Escrow Agent" shall mean Chicago Title Escrow Company, located at 750
North Palm Canyon Drive, Palm Springs, CA and empowered hereunder to act as the Escrow
Agent for this transaction. The Escrow Agent contact shall be Dawn Martin.
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4. (§215) Low Income Household.
The term "Low Income Household" shall mean a household whose annual household
income does not exceed eighty percent (80%) of area median income for Riverside County,
adjusted for applicable household size, as computed in accordance with the Community
Redevelopment Law and the regulations promulgated pursuant thereto or incorporated therein,
including, without limitation, all regulations promulgated pursuant to Health and Safety Code
Section 50093, or any successor statute.
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P. (§216) Manager's Unit.
The tern "Manager's Unit" shall mean the one (1) unit of the Project that shall be
designated by Developer as a residence for a "Qualified Manager." The Manager's Unit shall
not be an income-restricted Unit.
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1. (§2171 Project.
The term "Project" shall mean all of the improvements required to be constructed by
Developer on the Site pursuant to this Agreerent, including, but not limited to, construction of
buildings, glass and concrete work, landscaping, construction of parking areas, and related
improvements. The overall Project is more particularly described in the Scope of Development
attached hereto as Attachment No. 4 Upon completion, the Project will be a sixty-six (66) unit
residential apartment complex including thirty-two (32) units restricted for rent to very low and
low income households, one (1) Unit restricted for rent to a Qualified Manager, and a childcare
center. Fifty (501 percent of the Restricted Units shall he for Very Low Income Household
and fifty_(50)percent shall he for Low Income Flouseholds
$1$. (§218) Purchase Price.
The term "Purchase Price" shall mean that amount agreed upon by the parties as the
payment to be made by Developer to Agency for the purchase of the Site, which Purchase Price
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shall be the amount of Two Hundred and Fifty Thousand Dollars ($250.0001 which sha11 he
comprisedof a cash portion equal to One Dollar ($1 00) and a p romissory nute ("Agency
Note") r r "Deed of Trust") in the amount of Two Hundred Forty-
Nine Thousand Dollars ($249 000) in addition to the additional cash Agency Assistance f T
a total note and deed of trust amount of One Million Dollars (57,000.000)
�d-9. (&219) Qualified Manager.
The term "Qualified Manager" shall mean the resident Project Manager selected and
retained by Developer pursuant to the Regulatory Agreement The Qualified Manager shall
reside in the "Manager's Unit" designated by Developer. The Manager's Unit shall be restricted
to occupancy by the Qualified Manager and their households, but shall not be subject to any
income restriction.
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T. (6220) Qualified Tax Credit Investor.
The term "Qualified Tax Credit Investor" shall mean a person or entity who (i) is an
experienced limited partner and investor in multifamily housing developments receiving low
income housing tax credits issued by the State of California or the United States federal
government ("Tax Credits"), and (ii) has obtained or is contractually obligated to obtain a limited
partnership or limited liability company membership interest in the Developer whereby it will
receive ninety percent (90%) or more of the Tax Credits obtained in connection with the Project.
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L. (&221) Qualified Tenant.
The term "Qualified Tenant" shall mean those households seeking to rent a Restricted
Unit who satisfy all of the following requirements
a. Upon execution of a lease with Developer pursuant to this Agreement,
each member of the household will occupy a Restricted Unit as its principal residence, and each
member intends to thereafter continuously occupy such Restricted Unit as its principal residence.
b. Upon execution of a lease with Developer pursuant to this Agreement, the
household is a Very Low or Low Income Household.
C. The household has been selected in accordance with the tenant selection
criteria set forth in the Regulatory Agreement.
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Y. (§222,) Redevelopment Plan.
The term "Redevelopment Plan" shall mean the Redevelopment Plan for the Niel' cd
Redevelopment Project Area No. l in the City of Palm Springs, as adopted by Ordinance No.
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[ of the City Council on J and as such Redevelopment Plan has been
amended from time to time. Agency hereby warrants and represents that the Redevelopment
Plan was validly adopted and is in full force and effect, that the applicable limitations period for
challenging the validity of the Redevelopment Plan has expired and that the proposed Project is
in accordance with and permissible under the Redevelopment Plan. A copy of the
Redevelopment Plan is on file in the office of the City Clerk of the City, located at 3200 E.
Tahquitz Canyon Way, Patin Springs, California 92262 The Redevelopment Plan is
incorporated herein by reference and made a part hereof as though filly set forth herein.
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W. (6223) Redevelopment Project Area.
The term "Redevelopment Project Area" shall mean the Palm Springs Mein
Redevelopment Project Area No. 1, which is located in the City of Patin Springs, California.
The exact boundaries of the Redevelopment Project Area are specifically described in the
Redevelopment Plan.
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X. (§224) Regulatory Agreement.
The term "Regulatory Agreement" shall mean that Regulatory Agreement attached hereto
as Attachment No. 9 7, running with the land and providing for the proper maintenance of
common facilities and improvements and the management and use of the Project and to insure
the Restricted Unites remain affordable pursuant to the terms of this Agreement.
Y 25. (§225) Restricted Unit.
The term "Restricted Unit" shall mean and refer to one of the thirty-two (32) apartment
units in the Project which are restricted to occupancy by this Agreement and the Regulatory
Agreement to a Very Low or Low Income Household at an Affordable Rent. "Restricted Units"
shall mean and refer collectively to each and every Restricted Unit located on the Site. A
minimum of sixteen (16) of the Restricted IJuits shall be leased to Very Low Income
Households.
Z26. (§226) Schedule of Performance
The term "Schedule of Performance" shall mean that certain Schedule of Performance
attached hereto as Attachment No. 3.
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AA. (M7) Site and Site Man.
The Project shall be located upon that real property located in the City of Palm Springs,
hereinafter referred to as the "Site", to be conveyed to and developed by Developer pursuant to
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this Agreement, as shown in the "Site Map" attached hereto as Attachment No. 1. The Site is
legally described in the "Legal Description" attached hereto as Attachment No. 2.
2s (§228) Title,
term The <<14 e�ltall r the Ile ` rte eerweyed-t-o-Beaeleper pursuant to-the
-n -r,�-le-to-t#e-�
Deed-
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B—B. (§229) Title Company.
The term "Title Company" shall mean Chicago Title Company, located at 750 North
Palm Canyon Drive, Palm Springs, and empowered hereunder to act as the Title company for
this transaction. The title officer shall be Margaret Flowers.
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CC. (§230) VeU Low Income Household
The term "Very Low Income Household" shall mean a household whose annual
household income does not exceed fifty percent (50%) of area median income for Riverside
County, adjusted for applicable household size, as computed in accordance with the Community
Redevelopment Law and the regulations promulgated pursuant thereto or incorporated therein,
including, without limitation, all regulations promulgated pursuant to Health and Safety Code
Section 50093, or any successor statute.
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M. (§300) PARTIES TO THE AGREEMENT
A (&301) Agency
Agency is a public body, corporate and politic, exercising governmental functions and
powers, organized and existing under the Community Redevelopment Law of the State of
California (Health and Safety Code Sections 33000, et seq.). The office of Agency is located at
3200 E. Tahquitz Canyon Way, Palm Springs, California 92262. The term "Agency," as used in
this Agreement, includes the Palm Springs Redevelopment Agency and any assignee of, or
successor to, its rights, powers and responsibilities.
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B. (&302) Developer.
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I. Identification. Developer is Sunrise Hacienda Partners, a California
Limited Partnership, or its a� rp Qvetl transferee as described in Section 3n�) 303. The
principal office of Developer for the purposes of this Agreement is located at 45-701 Monroe
Street, Suite G, Plaza I, Indio, CA 92201. Developer warrants and represents to Agency that
Developer will be 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.
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2. Successors and Assigns. Except as may be expressly provided
hereinbelow, all of the terms, covenants and conditions of this Agreement shall be binding on,
and shall inure to the benefit of, Developer and the permitted successors, assigns and nominees
of Developer as-to eachrtion orthe—Site. Wherever the term "Developer" is used herein, such
term shall include any permitted successors and assigns of Developer as herein provided.
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3. Qualifications. The qualifications and identity of Developer are of
particular concern to the Agency, and it is because of such qualifications and identity that
Agency has entered into this Agreement with Developer. The Agency has considered the
experience, financial capability;—and-rm�&dtrct being-niarketed—by Qf Developer-the—Site location
andz; afaeteristie , e Site and--retafn- en
investment, and—the ^ mix eeess,�redtuae—and--eperate successfill
gleject affordable housing projects. Based upon these considerations, the Agency has imposed
those restrictions on transfer set forth in this Agreement.
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-C. (§303) Restrictions on Transfer.
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I. Transfer Defined. As used in this section, the term "Transfer" shall
include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this
Agreement, the Site, or the improvements thereon. A Transfer shall also include the transfer to
any person or group of persons acting in concert of more than twenty-five percent (25%) of the
present ownership and/or control of Developer in the aggregate, taking all transfers into account
on a cumulative basis, except transfers of such ownership or control interest between members of
the same immediate family, or transfers to a trust, testamentary or otherwise, in which the
beneficiaries are limited to members of the transferor's immediate family. In the event
Developer or its successor is a corporation or trust, such transfer shall refer to the transfer of the
issued and outstanding capital stock of Developer, or of beneficial interests of such trust; in the
event that Developer is a limited or general partnership, such transfer shall refer to the transfer of
more than twenty-five percent (25%) of the limited or general partnership interest; in the event
that Developer is a joint venture, such transfer shall refer to the transfer of more than twenty-five
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Sum'�sc Hacienda Partners DDA
percent (25%) of the ownership and/or control of any such joint venture partner, taking all
transfers into account on a cumulative basis.
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2_. Restrictions Prior to Completion Prior to issuance of the Certificate of
Completion, Developer shall not Transfer this Agreement or any of Developer's rights
hereunder, or any interest in the Site or in the improvements thereon, directly or indirectly,
voluntarily or by operation of law, except as provided below, without the prior written approval
of Agency, and if so purported to be Transferred, the same shall be null and void. In considering
whether it will grant approval to any Transfer by Developer of its interest in the Site before the
issuance of the Certificate of Completion, which Transfer requires Agency approval, Agency
shall consider factors such as (i) whether the completion or implementation of the Project is
jeopardized; (ii) the financial strength and capability of the proposed assignee to perform
Developer's obligations hereunder; and (iii) the proposed assignee's experience and expertise in
the planning, financing, development, ownership, and operation of similar projects.
In the absence of specific written agreement by Agency, prior to the issuance of a
Certificate of Completion no Transfer by Developer of all or any portion of its interest in the Site
or this Agreement (including without limitation an assignment or transfer not requiring Agency
approval hereunder) shall be deemed to relieve it or any successor party from any obligations
under this Agreement with respect to the completion of the development of the Project with
respect to that portion of the Site which is so transferred. In addition, no attempted assignment
of any of Developer's obligations hereunder shall be effective unless and until the successor
party executes and delivers to Agency an assumption agreement in a form approved by the
Agency assuming such obligations.
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5. Exceptions. The foregoing prohibition shall not apply to any of the
following:
a. Any mortgage, deed of trust, or other form of conveyance for
financing, as provided in Section 513, but Developer shall notify Agency in advance of any such
mortgage, deed of trust, or other form of conveyance for financing pertaining to the Site.
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h Any mortgage, deed of trust, or other form of conveyance for
restructuring or refinancing of any amount of indebtedness described in subsection (a) above,
provided that the amount of indebtedness incurred in the restructuring or refinancing does not
exceed the outstanding balance on the debt incurred to finance the acquisition of and
improvements on the Site, including any additional costs for completion of construction, whether
direct or indirect, based upon the estimates of architects and/or contractors.
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9. The granting of easements to any appropriate governmental agency
or utility or permits to facilitate the development of the Site.
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li. A sale or transfer resulting from or in connection with a
reorganization as contemplated by the provisions of The Internal Revenue Code of 1986, as
amended or otherwise, in which the ownership interests of a corporation are assigned directly or
by operation of law to a person or persons, firm or corporation which acquires the control of the
voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
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-e A sale or transfer of 49% or more of ownership or control interest
between members of the same immediate family, or transfers to a trust, testamentary or
otherwise, in which the beneficiaries consist solely of immediate family members of the Trustor
or transfers to a corporation or partnership in which the immediate family members or
shareholders of the transferor have a controlling majority interest of 51% or more.
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f. A sale or transfer to a Qualified Tax Credit Investor; provided that
such Qualified Tax Credit Investor shall be in a non-managing role
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4. Restrictions After Completion. It is hereby acknowledged by Developer
and Agency that the Site is being conveyed to the Developer by the Agency at below market
value and with significant Agency Financial Assistance. Therefore, subsequent to the issuance
of the Certificate of Completion, Developer may not sell, transfer, convey, hypothecate, assign or
lease all or any portion of its interest in the Site without complying with any transfer restrictions
contained within the Deed, the Deed of Trust or the Regulatory Agreement, as applicable.
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IY (&400�Ar TrCA 41D DISPOSITION OF THE SITE
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A. (§401) Housing Program Funds.
The parties acknowledge that Developer intends to finance the acquisition and
development costs for the Project with Tax Credit financing, coupled with the Agency Financial
Assistance described in Section 403. Developer shall diligently apply for and pursue such Tax
Credit Financing at the earliest feasible opportunity, taking into account all applicable rules and
requirements. Developer may also pursue finding from other government-sponsored subsidized
housing funds. All of the foregoing financing shall be referred to herein collectively as "Housing
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Program Funds." Developer shall demonstrate to Agency's reasonable satisfaction by the dates
set forth in the Schedule of Performance that Developer has secured a bona fide award,
commitment or reservation of Housing Program Funds in an amount sufficient to provide for the
acquisition, development, and operation of the Project.
Developer shall make an initial application for Tax Credit financing in July 2002, for a
possible award of Tax Credit financing in September 2002 The parties acknowledge that Tax
Credit financing is a highly competitive process and that Developer's initial application may not
be approved. Therefore, if the Developer is not successful in obtaining Tax Credit financing in
the 2002 funding cycle, the parties agree that Developer shall make a subsequent application for
Tax Credit financing in the 2003 funding cycle In that event, this Agreement shall remain in
effect and the parties agree to cooperate as necessary to increase the likelihood of a successful
application in 2003 including amending consideration of potential amendments to this
Agreement if necessary. The dates in the Schedule of Performance shall be extended as
necessary to allow for the second or third application in the 2003 cycle. Agency agrees to assist
Developer with its applications for Housing Program Funds in any manner reasonably necessary;
provided that such assistance shall not require the Agency to contribute any financial assistance
to the Developer or the Project other than the Agency Financial Assistance described in Section
403, and further provided that such assistance shall not require the Agency to devote an
unreasonable amount of staff time or resources.
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It. (W2) Reserved,
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�. (§403) Disposition of the Site.
Agency shall convey the Site to Developer and Developer shall acquire the Site from
Agency, upon the terms and conditions hereinafter set forth.
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1. Purpose of Sale. Upon attaining required financing as described herein,
Developer agrees to develop the Site with sixty-six (66) rental units, thirty-two (32) of which
shall be restricted for fifty-five years (55) fo rental to persons of veFy-low yes vLo� and I&w
LDw income, all as described in the Scope of Development.
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2. Agency Financial Assistance. Agency agrees to provide certain financial
assistance to Developer to assist the Developer n in_tl>e
construction costs of the Project thereerr. The Reimbursable Costs are those specified in
Exhibit "I" to the Scone of Development Attachment No, 4. In addition to transferring the
fee interest in the site to the Developer for $1.00, the Agency shall loan the Developer $750,000
to be used towards payment of the Reimbursable Costs. The m•omissow note for the loan
" Note") shall be for a term of 55 years and each year of compliance
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credited 55°/0 of the principle. This amount shall be disbursed to Developer in
three-ij=]st-alhll, s e i efthis AgreeRent
by all � erS'_'«0-0�Ii"'� �moaner—a saw aPpli"tea �o
L&W Incvn",2—iumnsi}S T�� n 5 id ei41n�o=H-rthe f Fst kalf oa�n ' r —be paid in
3uly, 2003;anal -htr-d tsstallx�eK of 90�s1saN—he eanditiened el: of
Sew e€-tki z g net aHd paid in 3tdt--2 4- after submittal of documented
invoice and verification by the A en y of the completed work
Agency shall pay a properly submitted and documented invoice after verification of the
worh within thirty (30) days of receipt, provided that Agency shall comply with all mechanics'
lien laws. Developer shall be responsible for any actual costs of the Project exceeding the
Agency Financial Assistance.
The Agency Financial Assistance and the completion and operation of the Project shall
be secured by the Agency's right of reverter described in Section 805 and by the Deed of Trust
attached hereto as Attachment No. 8; provided that Agency's security shall be subordinated to
Developer's construction financing for the Project as approved by Agency. the total cost of
e Protect as approved by Agency is estimated to be The estimated
amount of the Developer'.
3 e. Exclusive Agreement. Agency acknowledges that Developer has obtained
most or all of the required approvals for the Project and has expended substantial funds to
prepare plans and drawings. Therefore, provided that Developer is not in default of this
Agreement, until the time set forth in the Schedule of Performance for the Closing Agency
agrees that it shall not negotiate with, or convey any of its interest in the Site to, any party other
than Developer. In addition, Agency shall provide Developer with copies of all plans and
drawings conveyed to Agency in accordance with the Agency Purchase Agreement, and Agency
and Developer shall both have the right to develop the Project in accordance with such plans and
drawings. Provided that Developer is not in defauh of this Agreement, Agency shall not convey
copies of or any of its interest in such plans and drawings to any party other than Developer.
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D. (§404) Escrow.
Escrow shall be opened within the time period specified in the Schedule of Performance.
This Agreement shall constitute the joint escrow instructions of the Agency and the Developer
for the Site, and a duplicate original of this Agreement shall be delivered to the Escrow Agent
upon the opening of Escrow. The Escrow Agent is empowered to act under these instructions.
Agency and Developer shall promptly prepare, execute, and deliver to the Escrow Agent such
additional escrow instructions consistent with the terns herein as shall be reasonably necessary.
No provision of any additional escrow instructions shall modify this document without specific
written approval of the modifications by both Developer and Agency.
E, (§405) Conditions to Close of Escrow.
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1. Developer's Conditions to Closing. Developer's obligation to acquire the
Site and to close Escrow hereunder, shall, in addition to any other conditions set forth herein in
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
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a. Title shall be conveyed in a good condition subject only to
conditions and exceptions recited in the Deed, those exceptions to title approved pursuant to
Section 407, the Deed of Trust, and the Regulatory Agreement.
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h. 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.
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-C. Developer shall have obtained evidence of financing commitments
for the development of the Site in accordance with Section 408, and Agency shall have approved
such commitments.
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d. Agency shall have deposited into escrow all the documents
required under Section 406 3.
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9. Developer shall have approved the physical and environmental
condition of the Site in accordance with Section 409.
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f. Developer shall have obtained from the City all required approvals
and permits, including site plan review, conditional use, subdivision, building, grading,
landscaping, and others for development of the Site.
Any waiver of the foregoing conditions must be express and in writing. In the event that
the foregoing conditions have not been satisfied within the time provided therefor in the
Schedule of Performance, either party may terminate this Agreement by delivering a written
notice in accordance with Section 411.
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2. Agency's Conditions to Closing. Agency's obligation to sell the Site and
to close escrow hereunder, shall, in addition to any other conditions set forth herein in favor of
Agency, be conditional and contingent upon the satisfaction, or waiver by Agency, of each and
all of the following conditions (collectively the "Agency's Conditions to Closing') within the
time provided in the Schedule of Performance:
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a. Developer shall have obtained evidence of financing commitments
for the development of the Site in accordance with Section 408, and Agency shall have approved
such commitments and the form of any loan documents.
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2. Developer shall have timely submitted to Agency and Agency
shall have approved plans and drawings for all improvements to be constructed on the Site,
including for site plan review, conditional use, subdivision, building, grading, landscaping and
other plans and drawings, as provided in Section 502; and Developer shall have conveyed title to
such plans to Agency;
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-C. Developer shall not have made or attempted to make a transfer in
violation of Section 303, provided that Agency shall give notice of any violation of Section 303
and afford Developer the opportunity to cure the violation.
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sl. Developer shall have deposited into escrow the Purchase Price and
all the documents required under Section 406.4.
Any waiver of the foregoing conditions must be express and in writing. In the event that
Developer fails to satisfy Agency's foregoing conditions or defaults in the performance of its
obligations hereunder, Agency may terminate this Escrow.
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3. 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.
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E. (W6) Conveyance of the Site.
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I. Time for Conveyance.nce. Escrow shall close after satisfaction of all
conditions to close of escrow, but not later than the date specified in the Schedule of
Performance, unless extended by the mutual agreement of the parties or any Enforced Delay.
Possession of the Site shall be delivered to Developer concurrently with the conveyance of title
free of all tenancies and occupants other than any title matters approved in accordance with
Section 407.
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2. Escrow Agent to Advise of Costs. On or before the date set in the
Schedule of Performance, the Escrow Agent shall advise the Agency and the Developer in
writing of the fees, charges, and costs necessary to clear title and close escrow, and of any
documents which have not been provided by said party and which must be deposited in Escrow
to permit timely Closing.
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I Deposits By Agency Prior to Closing. On or before, but not later than
1:00 P.M. of the date set in the Schedule of Performance, Agency shall execute, acknowledge
and deposit into escrow (i) the Grant Deed; (ii) an estoppel certificate certifying that Developer
has completed all acts, other than as specified, necessary for conveyance, if such be the fact; and
(iii) payment to Escrow Agent of Agency's share of costs as determined by the Escrow Agent
Pursuant to Section 410.
d
4. Deposits By Developer Prior to Closing. On or before, but not later than
1:00 p.m. of the date set in the Schedule of Performance, Developer shall execute and
acknowledge as may be required and deposit into escrow (i) the Purchase Price; (ii) the
Regulatory Agreement; (iii) Agencv Noie (ivl the Deed of Trust; ( a) v an estoppel certificate
certifying that Agency has completed all acts, other than as specified, necessary to conveyance,
if such be the fact; and ( vl payment to Escrow Agent of Developer's share of costs as
determined by the Escrow Agent pursuant to Section 410.
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Recordation and Disbursement of Funds. Upon the completion by the
Agency and Developer of the deliveries and actions specified in these escrow instructions
precedent to Closing, the Escrow Agent shall be authorized to buy, affix and cancel any
documentary stamps and pay any transfer tax and recording fees, if required by law, and
thereafter cause to be recorded in the appropriate records of Riverside County, California, the
Deed, the Regulatory Agreement, the Deed of Trust, and any other appropriate instruments
delivered through this escrow, if necessary or proper to, and provided that the fee title interest
can, vest in Developer in accordance with the terms and provisions herein. Concurrent with
IRV#22674 Red vl/v2 -15- SLUMSe I-Incietida Pmtners DDA
recordation, Escrow Agent shall deliver the Title Policy to Developer insuring title and
conforming to the requirements of Section 407. Following recordation, the Escrow Agent shall
deliver copies of said instruments to Developer and Agency.
G. (W7) Title Matters.
a
1. Condition of Title. Agency shall convey to Developer fee interest in the
Site, subject only to: (i) the Redevelopment Plan, this Agreement, conditions in the Deed, the
Deed of Trust, and the Regulatory Agreement, (ii) current taxes, a lien not yet payable; (iii)
quasi-public utility, public alley and public street easements of record approved by Developer,
which approval shall not be unreasonably withheld; and (iv) covenants, conditions and
restrictions, reciprocal easements, and other encumbrances and title exceptions approved by
Developer under this Section. Agency shall convey title pursuant to the Deed in the form set
forth in Attachment No. 6 hereto
b
2. Exclusion of Oil. Gas, and Hydrocarbons. Title shall be conveyed subject
to the exclusion therefrom to the extent now or hereafter validly excepted and reserved by the
parties named in deeds, leases and other documents of record of all oil, gas, hydrocarbon
substances and minerals of every kind and character lying more than five hundred feet (500')
below the surface, together with the right to drill into, through, and to use and occupy all parts 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.
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3. Agency Not to Encumber Site. Agency hereby warrants to Developer that
it has not and will not, from the time of Developer's review of the Preliminary Title Report to
close of escrow, transfer, sell, hypothecate, pledge, or otherwise encumber the Site without
express written permission of Developer.
d
4. Approval of Title Exceptions. Prior to the date in the Schedule of
Performance, Agency shall deliver a preliminary title report, dated no earlier than the date of this
Agreement, to Developer including copies of all documents referenced therein. Prior to the date
in the Schedule of Performance, Developer shall deliver to Agency written notice, with a copy to
Escrow Agent, specifying in detail any exception disapproved and the reason therefor; provided
that Developer shall not disapprove any exception that existed at the time title to the Site was
conveyed to the Agency pursuant to the Agency Purchase Agreement. Prior to the date in the
IRV 922674 Red vIN2 -16- Sunrise Hacienda Partners DDA
Schedule of Performance, Agency shall deliver written notice to Developer as to whether
Agency will or will not cure the disapproved exceptions; provided, however, that Agency shall
elect to cure all disapproved exceptions which arose due to acts of Agency. if Agency so elects
to cure the disapproved exceptions, Agency shall do so on or before the Closing If escrow fails
to timely close due to exceptions which arose due to acts of Agency not authorized by
Developer, and if Agency cannot cure said defects within the time provided in Section 411, then
Developer may elect to terminate the escrow and/or pursue any available remedies, including
specific performance, in accordance with Article 8 In the event the failure to close is due to the
existence of other conditions of title not approved by Developer which (i) are not the result of
acts of Agency and (ii) are not reasonably acceptable to Developer, then the parties shall
negotiate in good faith to correct the title problem, and shall consider courses of action with the
title company, bonding and indemnities, reimbursement of architectural and design expenses,
and other modifications of this Agreement.
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S. 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.
S
E . (§408) Evidence of Financial Capability
Within the time set forth in the Schedule of Performance, Developer shall submit to
Agency's Executive Director for approval evidence reasonably satisfactory to the Executive
Director that Developer has the financial capability necessary for the acquisition of the Site and
development of the Project thereon pursuant to this Agreement. Such evidence of financial
capability shall include all of the following
a
I. Documentation that Developer has secured adequate Housing Program
Funds for the development of the Project as described in Section 401.
b
2. Reliable cost estimates for Developer's total cost of acquiring the Site and
developing the Project (including both "hard" and "soft" costs)
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3. 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: that ally Stich finds
are to e exclusively used for the Proie t and that the amount shall not exceed
d 4. A financial statement and/or other documentation reasonably satisfactory
to the Executive Director sufficient to demonstrate that Developer has adequate finds available
and/or committed to cover the difference between the total acquisition costs of the Site and
development costs of the Project (subparagraph (1) above) and the proceeds of the construction
loan commitment (subparagraph (2) above)
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5. A copy of the proposed contract between Developer and its general
contractor for all of the improvements required to be constructed by Developer hereunder,
certified by Developer to be a true and correct copy thereof The Executive Director shall also
have the right to review and approve any revisions that are made to the proposed contract after
its approval by the Executive Director
Developer covenants and agrees to take all action, furnish all information, give all
consents and pay all Awns 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.
9
I. (§409) Condition of Site
a
L Disclaimer of Warranties. Upon the Close of Escrow, Developer shall
acquire the Site in its "AS-IS" condition and shall be responsible for any defects in the Site,
whether patent or latent, including, without limitation, the physical, environmental and
geotechnical condition of the Site, and the existence of any contamination, Hazardous Materials,
vaults, debris, pipelines, abandoned wells or other structures located on, under or about the Site.
Agency makes no representation or warranty concerning the physical, environmental,
geotechnical or other condition of the Site, the suitability of the Site for the Project, or the
present use of the Site, and specifically disclaims all representations or warranties of any nature
concerning the Site made by it, the City and their employees, agents and representatives. The
foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities,
present and future zoning, soil, subsoil, existence of Hazardous Materials or similar substances,
the purpose for which the Site is suited, or drainage. The Agency makes no representation or
warranty concerning the compaction of soil upon the Site, nor of the suitability of the soil for
construction.
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b
2. Right to Enter Site, Indemnification. Developer shall have the right to
enter upon the Site to conduct soils, engineering, or other tests and studies, to perform
preliminary work or Site investigation or for any other purposes to carry out the terns of this
Agreement. Developer shall indemnify, defend and hold Agency harmless from and against any
claims, injuries or damages arising out of or involving any such entry or activity as provided in
Section 506. Any such activity shall be undertaken only after securing any necessary permits
from the appropriate governmental agencies and providing Agency with certificates of insurance
evidencing the coverages required in Section 507.
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3. Hazardous Materials. Developer understands and agrees that in the event
Developer incurs any loss or liability concerning Hazardous Materials (as hereinafter defined)
and/or underground storage tanks and/or pipelines whether attributable to events occurring prior
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 underground storage tanks and/or
pipelines. Developer, and each of the entities constituting Developer, if any, from and after the
Closing, hereby waives, releases, remises, acquits and forever discharges Agency, City, their
directors, officers, share-holders, employees, and agents, and their respective heirs, successors,
personal representatives and assigns, of and from any and all Environmental Claims,
Environmental Cleanup Liability and Environmental Compliance Costs, as those terms are
defined below, and from any and all actions, suits, legal or administrative orders or proceedings,
demands, actual damages, punitive damages, loss, costs, liabilities and expenses, which concern
or in any way relate to the physical or environmental conditions of the Site, the existence of any
Hazardous Material thereon, or the release or threatened release of Hazardous Materials
therefrom, whether existing prior to, at or after the Closing It is the intention of the parties
pursuant to this release that any and all responsibilities and obligations of Agency and City, and
any and all rights, claims, rights of action, causes oC action, demands or legal rights of any kind
of Developer, its successors, assigns or any affiliated entity of Developer, arising by virtue of the
physical or environmental condition of the Site, the existence of any Hazardous Materials
thereon, or any release or threatened release of Hazardous Material therefrom, whether existing
prior to, at or after the Closing, are by this Release provision declared null and void and of no
present or future force and effect as to the parties In connection therewith, Developer and each
of the entities constituting Developer, expressly agree to waive any and all rights which said
party may have under Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
DEVELOPER'S INITIALS: AGENCY'S INITIALS:
IRV 922674 Red vI N2 _1 9_ Sunn.se Hacienda Partners DDA
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.
a
h. "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.
3
.. "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.
IRV#22674 Red vI N2 -20- Sunrise nacaenda Partners DDA
4
I "Environmental Law" means any federal, state or local statute,
ordinance, Wile, regulation, order, consent decree,judgment or common-law doctrine, and
provisions and conditions of permits, licenses and other operating authorizations relating to (A)
pollution or protection of the environment, including natural resources, (B) exposure of persons,
including employees, to Hazardous Materials or other products, raw materials, chemicals or
other substances, (C) protection of the public health or welfare from the effects of by-products,
wastes, emissions, discharges or releases of chemical sub-stances from industrial or commercial
activities, or (D) regulation of the manufacture, use or introduction into commerce of chemical
substances, including, without limitation, their manufacture, formulation, labeling, distribution,
transportation, handling, storage and disposal.
3
.e. "Hazardous Material' is defined to include any hazardous or toxic
substance, material or waste which is or becomes regulated by any local governmental authority,
the State of California, or the United States Government The term "Hazardous Material'
includes, without limitation, any material or substance which is: (A) petroleum or oil or gas or
any direct or derivate product or byproduct thereof, (B) defined as a "hazardous waste,"
"extremely hazardous waste" or"restricted hazardous waste" under Sections 25115, 25117 or
25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division
20, Chapter 6.5 (Hazardous Waste Control Law); (C) defined as a "hazardous substance" under
Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-
Presley-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 tile 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; (IZ) defined as a "hazardous waste" pursuant to the Federal Resource
Conservation and Recovery Act, 42 U S C. § 6901 et sec. (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 sec . (42 U.S.0 § 9601); (M) defined as "Hazardous
Material' pursuant to the Hazardous Materials Transportation Act, 49 U.S C. § 5101 et sec.; or
(N) defined as such or regulated by any "Superfrnd" or "Superlien" law, or any other federal,
state or local law, statute, ordinance, code, rule, regulation, order or decree regulating, relating
to, or imposing liability or standards of conduct concerning Hazardous Materials and/or oil wells
and/or underground storage tanks and/or pipelines, as now, or at any time here-after, in effect.
Hazardous Materials shall not include those materials routinely used in the development or
operation of multi-family housing in accordance with all environmental and workplace safety
laws.
IRV#22674 Red vl/v2 -2 1- Sunnse Hacienda Partners DDA
Notwithstanding any other provision of this Agreement, Developer's release and
indemnification as set forth in the provisions of this Section, as well as all provisions of this
Section shall survive the termination of this Agreement and shall continue in perpetuity.
Notwithstanding anything to the contrary in this Section, Developer's release of Agency
and City from liability pursuant to this Section shall not extend to Hazardous Materials brought
onto the Site by Agency or City. Agency agrees that it, its employees and agents shall not bring
onto or use on the Site any Hazardous Materials during the time Agency has possession and/or
ownership of the Site.
4-0
1. (&410) Costs of Escrow.
a
1. Allocation of Costs. The Escrow Agent is authorized to allocate costs as
follows: Agency shall pay the cost of the Title Policy as provided above while Developer shall
pay premiums for any additional insurance, extended coverage or special endorsements. Agency
shall pay the documentary transfer tax as well as all recording fees. Developer and Agency shall
each pay one-half of all escrow and similar fees, except that if one party defaults under this
Agreement, the defaulting party shall pay all escrow fees and charges. Each party shall pay its
own attorneys' fees.
b
2. Proration and Adjustments. Ad valorem taxes and assessments on the Site
and insurance for the current year shall be prorated by the Escrow Agent as of the date of
Closing with the Agency responsible for those levied, assessed or imposed prior to Closing and
the Developer responsible for those after Closing if the actual taxes are not known at the date of
Closing, the proration shall be based upon the most current tax figures. When the actual taxes
for the year of Closing become known, Developer and Agency shall, within thirty days
thereafter, reprorate the taxes in cash between the parties.
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3 Extraordinary Services of Escrow Agent. It is understood that escrow fees
and charges contemplated by this Agreement incorporate only the ordinary services of the
Escrow Agent as listed in these instructions. In the event that the Escrow Agent renders any
service not provided for in this Agreement as amended, or that there is any assignment of any
interest in the subject matter of this escrow as amended, or that any controversy arises hereunder,
or that the Escrow Agent is made a party to, or reasonably intervenes in, any litigation pertaining
to this escrow or the subject matter thereof, then the Escrow Agent shall be reasonably
compensated for such extraordinary services and reimbursed for all costs and expenses
occasioned by such default, controversy or litigation.
d
IRV 422674 Red vI 2 -22- SUM ISe Hacienda PaMers DDA
A. Escrow Agent's Right to Retain Documents. Escrow Agent shall have the
right to retain all documents and/or other things of value at any time held by it hereunder until
such compensation, fees, costs and expenses shall be paid. The undersigned hereby jointly and
severally promise to pay such sums upon demand.
}}
K. (W 1) Termination of Escrow.
a
I. Termination. Escrow may be terminated by demand of either party who
then shall have firlly performed its obligations hereunder if.
}
a. The Conditions to Closing have not occurred or have not been
approved, disapproved, or waived as the case may be, by the approving party by the date
established herein for the occurrence of such Condition, including any grace period pursuant to
this Section; or
12. Escrow is not in a condition to close by the date set for Closing; or
3
-. 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
2. Opportunityy 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
IRV 422674 Red vl/v2 _23- Suni ise Hacienda Partners DDA
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 I 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 light to cure the default in accordance with
and in the time provided in Section 301
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3. Delivery of Plans, Drawin,s, and Reports. Upon termination of escrow
for any reason, all plans, drawings, specifications, reports, and other documents prepared by
Developer or Developer's contractors or vendors for the Project shall become the property of the
Agency and shall be delivered to Agency by Developer within ten (10) days of receipt of notice
from Agency.
4-2
L. (§412) Responsibility of Escrow Agent
a
I. 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
2, Notices. All communications from the Escrow Agent shall be directed to
the addresses and in the manner provided in Section 901 of this Agreement for notices, demands
and communications between Agency and Developer.
s
3. Sufficiency of Documents. The Escrow Agent is not to be concerned with
the sufficiency, validity, correctness of form, or content of any document prepared outside of
escrow and delivered to Escrow. The sole duty of the Escrow Agent is to accept such documents
and follow Developer's and Agency's instructions for their use
d
4. Exculpation of Escrow A_ent. The Escrow Agent shall in no case or event
be liable for the failure of any of the Conditions to Closing of this escrow, or for forgeries or
false personation, unless such liability or damage is the result of negligence or willful
misconduct by the Escrow Agent.
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5. Responsibilities in the Event of Controversies. If any controversy
documented in writing arises between 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.
Y. (§500) DEVELOPMENT OF TIIE SITE
A. 501 Scoe of Development.
The Site shall be developed by Developer as provided in the Scope of Development, the
Planned Development District approved by City, the Regldatoy Agreement, and the plans and
permits approved by Agency and City pursuant to Section 502.
2
B. (002) Development Plans: Final Building Plans
a
I. Proposed Development's Consistency With Plan and Codes. Agency
warrants and represents that the City's General Plan, Zoning Ordinance, and Redevelopment
Plan permits Developer's proposed development, and construction, operation, and use of the Site
as provided in this Agreement, including without limitation the Scope of Development, subject
only to approval of the Project pursuant to Health and Safety Code Sections 33433; provided that
it is expressly understood by the parties hereto that Agency makes no representations or
warranties with respect to approvals required by any other governmental entity or with respect to
approvals hereinafter required from City and Agency, Agency and City reserving full police
power authority over the Project. Nothing in this Agreement shall be deemed to be a
prejudgment or commitment with respect to such items no- a guarantee that such approvals or
permits will be issued within any particular time or with or without any particular conditions.
b
2. Development Plan. Concurrently with or prior to the approval of this
Agreement, the Agency has approved the Developer's Basic Concept Drawings, and the City has
approved the Planned Development District for the Project. On or before the date set forth in the
Schedule of Performance, Developer shall submit to the City all other necessary preliminary, and
thereafter final drawings and specifications for development of the Site in accordance with the
IRV 422674 Red v1/v2 -25- Sunrise Hacienda Partners DDA
Scope of Development, and all in accordance with the City's requirements. The term
preliminary and final drawings shall be deemed to include site plans, building plans and
elevations, grading plans, if applicable, landscaping plans, parking plans, signage, a description
of structural, mechanical, and electrical systems, and all other plans, drawings and specifications.
Final drawings will be in sufficient detail to obtain a building permit. Said plans, drawings and
specifications shall be consistent with the Scope of Development and the various development
approvals referenced hereinabove, except as such items may be amended by City (if applicable)
and by mutual consent of Agency and Developer. Plans (concept, preliminary and construction)
shall be progressively more detailed and will be approved if a logical evolution of plans,
drawings or specifications previously approved Plans in sufficient detail to obtain all
discretionary land use approvals, including for site plan approval, conditional use permit, and
other actions requiring Planning Commission approval, shall be submitted and processed
concurrently for the Site.
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5. Developer Best Efforts to Obtain AN)rovals. Developer shall exercise its
best efforts to timely submit all documents and information necessary to obtain all development
and building approvals from the City in a timely manner. Not by way of limitation of the
foregoing, in developing and constructing the Project, Developer shall comply with all applicable
development standards in City's Municipal Code and shall comply with all building code,
landscaping, signage, and parking requirements, except as may be permitted through approved
variances and modifications.
d
4. Agency Assistance. Subject to Developer's compliance with (i) the
applicable City and Agency development standards for the Site, and (ii) all applicable laws and
regulations governing such matters as public hearings, site plan review and environmental
review, Agency agrees to provide reasonable assistance to Developer, at no cost to Agency, in
the expeditious processing of Developer's submittals required under this Section in order that
Developer can obtain a final City action on such matters within the time set forth in the Schedule
of Performance. City or Agency's failure to provide necessary approvals or permits within such
time periods, after and despite Developer's reasonable efforts to submit tine documents and
information necessary to obtain the same, shall constitute an Enforced Delay
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5. Disapproval. The Agency shall approve or disapprove any submittal made
by Developer pursuant to this Section within forty-five (45) days after such submittal. All
submittals made by Developer will note the 45-day time limit, and specifically reference this
Agreement and this section. Any disapproval shall state in writing the reason for the disapproval
and the changes which the Agency requests be made. Developer shall make the required
changes and revisions and resubmit for approval as soon as is reasonably practicable but no more
than thirty (30) days after the date of disapproval. Thereafter, Agency shall have an additional
thirty (30) days for review of the resubmittal, but if the Agency disapproves the resubmittal, then
IRV#22674 Red vIN2 -26- Sunnse Hacienda Partners DDA
the cycle shall repeat, until the Agency's approval has been obtained. The foregoing time
periods may be shortened if so specified in the Schedule of Performance.
-6 CEQA. The Agency shall be responsible for obtaining the approval of this
Agreement and the Project as required by the California Environmental Quality Act. Without
limitation of the foregoing, Developer specifically acknowledges and agrees that the Developer
shall satisfy all conditions necessary to ensure that the Project conforms to all applicable CEQA
requirements. The Developer agrees to supply information and otherwise assist Agency, upon
Agency's request, to determine the environmental impact of the proposed development and to
allow Agency to prepare and process such environmental documents, if any, as may need to be
completed for the development pursuant to the requirements of CEQA.
3
�. (§503) Developer Responsibilities During Construction.
Except to the extent of the Agency Financial Assistance, the cost of constructing all of
the improvements required to be constructed for the Project shall be borne by Developer, except
for any work expressly set forth in this Agreement to be performed or funded by the Agency or
others. In addition, in developing the Site, Developer shall conduct watering of the ground as
reasonably required by Agency, and take such other actions as Agency shall reasonably require
to minimize the impact of construction and airborne debris on nearby property.
4
12. (004) Reserved.
0505) Schedule of Performance. Progress Reports
Developer shall begin and complete all plans, reviews, construction and development
specified in the Scope of Development within the times specified in the Schedule of Performance
or such reasonable extensions of said dates as may be mutually approved in writing by the
parties.
Once construction is commenced, it shall be diligently pursued to completion, and shall
not be abandoned for more than thirty (30) consecutive clays, except when due to an Enforced
Delay. Developer shall keep the Agency informed of the progress of construction and shall
submit monthly to the Agency written reports of the progress of the construction in the form
required by the Agency.
6
E. (§506) Indemnification During Construction.
IRV 922674 Red vllv3 -27- Sunrise Hamenda Parineis DDA
During the periods of construction on the Site and until such time as the Agency has
issued a Certificate of Completion with respect to the construction of the improvements thereon,
the Developer agrees to and shall indemnify and hold the Agency and the City harmless from
and against all liability, loss, damage, costs, or expenses (including reasonable attorneys' fees
and court costs) arising from or as a result of the death of any person or any accident, injury,
loss, or damage whatsoever caused to any person or to the property of any person which shall
occur on the Site and which shall be directly or indirectly caused by any acts done thereon or any
errors or omissions of the Developer or its agents, servants, employees, or contractors. The
Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors, or
omissions of the Agency or the City, or their respective agents, servants, employees, or
contractors. The Agency and City shall not be responsible for any acts, errors, or omissions of
any person or entity except the Agency and the City and their respective agents, servants,
employees, or contractors, subject to any and all statutory and other immunities. The provisions
of this Section shall survive the termination of this Agreement.
G. (§507) Insurance.
Prior to the entry by Developer on the Site pursuant to Section 409 and prior to the
commencement of any construction by Developer on the Project, Developer shall procure and
maintain, at its sole cost and expense, in a form and content satisfactory to Agency, during the
entire term of such entry or construction, the following policies of insurance
a
I. Commercial General Liability Insurance. A policy of commercial general
liability insurance written on a per occurrence basis in an amount not less than a combined single
limit of TWO MILLION DOLLARS ($2,000,000.00)
b
2. Worker's Compensation Insurance. A policy of worker's compensation
insurance in such amount as will fully comply with the laws of the State of California and which
shall indemnify, insure and provide legal defense for both the Developer, Agency, and the City
against any loss, claim or damage arising from any injuries or occupational diseases occurring to
any worker employed by or any persons retained by the Developer in the course of carrying out
the work or services contemplated in this Agreement.
e
1 Automobile Insurance. A policy of automobile liability insurance written
on a per occurrence basis in an amount not less than ONE MILLION DOLLARS
($1,000,000.00) combined single limit per accident for bodily injury and property damage
covering owned, leased, hired, and non-owned vehicles.
d
IRV It22674 Red v]/v2 -28- Sunnse Hacienda Partners DDA
4. Builder's Risk Insurance A policy of"builder's risk" insurance covering
the full replacement value of all of the improvements to be constructed by Developer pursuant to
this Agreement, and Developer's personal property and equipment
All of the above policies of insurance, except the Builder's Risk Insurance, shall be
primary insurance and shall name Agency, City, and their officers, employees, and agents as
additional insureds. The insurer shall waive all rights of subrogation and contribution it may
have against Agency, City, and their officers, employees and agents and their respective insurers.
All of said policies of insurance shall provide that said insurance may not be amended or
cancelled without providing thirty (30) days prior written notice by registered mail to Agency
and City. In the event any of said policies of insurance are cancelled, the Developer shall, prior
to the cancellation date, submit new evidence of insurance in conformance with this Section to
the Executive Director. No work or services under this Agreement shall commence until the
Developer has provided Agency with Certificates of Insurance or appropriate insurance binders
evidencing the above insurance coverages and said Certificates of Insurance or binders are
approved by Agency.
The policies of insurance required by this Agreement shall be satisfactory only if issued
by companies qualified to do business in California, rated "A" or better in the most recent edition
of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a
financial category Class 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 or modified by the Risk Manager,
The Developer agrees that the provisions of this Section shall not be construed as limiting
in any way the extent to which the Developer may be held responsible for the payment of
damages to any persons or property resulting from the Developer's activities or the activities of
any person or persons for which the Developer is otherwise responsible.
H. (§508) City and Other Governmental Agency Permits
Before commencement of construction or development of any buildings, structures, or
other works of improvement upon the Site which are Developer's responsibility under the Scope
of Development, Developer shall at its own expense secure or cause to be secured any and all
permits which may be required by City or any other governmental agency affected by such
construction, development or work The Developer shall not be obligated to commence
construction if any such permit is not issued despite good faith effort by Developer. If there is
delay beyond the usual time for obtaining any such permits due to no fault of Developer, the
Schedule of Performance shall be extended to the extent such delay prevents any action which
could not legally or would not in accordance with good business practices be expected to occur
before such permit was obtained. Developer shall pay all normal and customary fees and
IRV 922674 Red vIN2 _29_ Sunnse Hacienda Partners DDA
charges applicable to such permits and any fees or charges hereafter imposed by City or Agency
which are standard for and uniformly applied to similar projects in the City.
9
1. (§509) 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.
4-0
1. (5510) Applicable Laws.
Developer shall carry out the construction of the improvements to be constructed by
Developer in conformity with all applicable laws, including all applicable federal and state labor
laws.
44
K. (&511) Nondiscrimination During Construction.
Developer, for himself and his successors and assigns, agrees that in the construction of
the improvements to be constructed by Developer, it shall not discriminate against any employee
or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry
or national origin.
-1?
L. (&512) Taxes, Assessments, Encumbrances and Liens.
Developer shall pay, when due, all real estate taxes and assessments assessed or levied
subsequent to conveyance of title. Until the date Developer is entitled to the issuance by Agency
of a Certificate of Completion, Developer shall not place or allow to be placed thereon any
mortgage, trust deed, encumbrance or lien (except mechanic's liens prior to suit to foreclose the
same being filed) prohibited by this Agreement. Developer shall remove or have removed any
levy or attachment made on the Site, or assure the satisfaction thereof, within a reasonable time,
but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit
IRV#22674 Red vl/v2 _30_ Sunma Hacienda Partners DDA
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.
13
M. (§513) Rights of Holders of Approved Security Interests in Site
a
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.
b
2. No Encumbrances Except Mortgages to Finance The Project.
Notwithstanding the restrictions on transfer in Section 303, mortgages required for any
reasonable method of financing of the construction of the improvements are permitted before
issuance of a Certificate of Completion but only for the purpose of securing loans of fiords used
or to be used for financing the acquisition of the Site, for the construction of improvements
thereon, and for any other expenditures necessary and appropriate to develop the Site under this
Agreement, or for restructuring or refinancing any for same, so long as the refinancing does not
exceed the then outstanding balance of the existing financing, including any additional costs for
completion of construction, whether direct or indirect, based upon the estimates of architects
and/or contractors. The Developer (or any entity permitted to acquire title under this Section)
shall notify the Agency in advance of any mortgage, if the Developer or such entity proposes to
enter into the same before issuance of the Certificate of Completion. The Developer or such
entity shall not enter into any such conveyance for financing without the prior written approval
of the Agency as provided in Section 408, which approval shall not be unreasonably withheld or
delayed. Any lender approved by the Agency pursuant to Section 408 shall not be bound by any
amendment, implementation, or modification to this Agreement subsequent to its approval
without such lender giving its prior written consent thereto In any event, the Developer shall
promptly notify the Agency of any mortgage, 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.
e
3. Developer's Breach Not to Defeat Mortgage Lien. Developer's breach of
any of the covenants or restrictions contained in this Agreement shall not defeat or render invalid
the lien of any mortgage made in good faith and for value as to the Site, or any part thereof or
interest therein, but unless otherwise provided herein, the 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.
IRV#22674 Red vl/v2 3 1_ Sumise Hacienda Partners DDA
d
I 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.
e
5. Notice of Default to Mortgages, Deed of Trust or other Security Interest
Holders. Whenever Agency shall deliver any notice or demand to Developer with respect to any
breach or default by Developer hereunder, Agency shall at the sane 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.
C. 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
a
12. 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 first having expressly assumed Developer's obligations to
Agency by written agreement satisfactory to Agency with respect to the Site or any portion
IRV 1/22674 Red vI N2 -32- Sunrise Hacienda PaRners DDA
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 f om Agency.
g
1 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,
upon payment to the holder of an amount equal to the sum of the following
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);
2
LI All expenses incurred by the holder with respect to foreclosure, if
any;
3
9. 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;
4
sI The costs of any improvements made by such holder, if any; and
3
-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
IRV 922674 Red vl/v2 _� _ Sum ise Hacienda Paiineis DDA
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:
i
I. 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.
ii
2. Second, to reimburse Agency, on its own behalf and on behalf of the City, for all
payments made by Agency to discharge any other encumbrances or liens on the Site or to
discharge or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults, or acts of Developer, its successors or transferees.
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.
iv
�. Fourth, any balance remaining thereafter shall be paid to Developer.
1�
$. Right of Agency to Cure Mortgage, Deed of Trust or Other Security
Interest Default. In the event of a default or breach by Developer (or entity permitted to acquire
title under this Section) of a mortgage prior to the issuance by Agency of a Certificate of
Completion for the Site or portions thereof covered by said mortgage, and the holder of any such
mortgage has not exercised its option to complete the development, Agency may cure the default
prior to completion of any foreclosure. In such event, Agency shall be entitled to reimbursement
from Developer or other entity of all costs and expenses incurred by Agency in curing the
default, to the extent permitted by law, as if such holder initiated such claim for reimbursement,
including legal costs and attorneys' fees, which right of reimbursement shall be secured by a lien
upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to.
}
a Any mortgage for financing permitted by this Agreement; and
a
IRV#22674 Rod vl/v2 -34- St mice Hacienda Partners DDA
lt. Any rights or interests provided in this Agreement for the
protection of the holders of such mortgages for financing;
provided that nothing herein shall be deemed to impose upon Agency any affirmative obligations
(by the payment of money, construction or otherwise) with respect to the Site in the event of its
enforcement of its lien.
i
9. R eht of A ency to Satisfy Other Liens on the Site After Conveyance of
Title. After the conveyance of title and prior to the recordation of a Certificate of Completion for
construction and development, and after the Developer has had a reasonable time to challenge,
cure, or satisfy any liens or encumbrances on the Site or any portion thereof, the Agency shall
have the right to satisfy any such liens or encumbrances; provided, however, that nothing in this
Agreement shall require the Developer to pay or make provision for the payment of any tax,
assessment, lien or charge so long as the Developer in good faith shall contest the validity or
amount thereof, and so long as such delay in payment shall not subject the Site or any portion
thereof to forfeiture or sale.
-14
1Y. (§514) Certificate of Completion.
Upon the completion of all construction required to be completed by Developer on the
Site, Agency shall furnish Developer with a Certificate of Completion for the Site in the form
attached hereto as Attachment No 7 upon written request therefor by Developer. The Certificate
of Completion shall be executed and notarized so as to permit it to be recorded in the office of
the Recorder of Riverside County. A Certificate of Completion shall be, and shall state that it
constitutes, conclusive determination of satisfactory completion of the construction and
development of the improvements required by this Agreement upon the Site and of full
compliance with the terms of this Agreement with respect thereto. A partial Certificate of
Completion applicable to less than the entire Site shall not be permitted.
After the issuance of a Certificate of Completion, any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such
ownership, purchase, lease, or acquisition) incur any obligation or liability under this Agreement
with respect to the Site, except that such party shall be bound by the covenants, encumbrances,
and easements contained in the Deed and the Regulatory Agreement attached hereto. After
issuance of a Certificate of Completion, the Agency shall not have any rights or remedies under
this Agreement with respect to the Site, except as otherwise set forth or incorporated in the Deed
or the Regulatory Agreement,
IRV 922674 Red vt/v2 -35- Sunri,e Hacienda Partners DDA
Agency shall not unreasonably withhold a Certificate of Completion. if Agency refuses
or fails to furnish a Certificate of Completion within thirty (30) days after written request from
Developer or any entity entitled thereto, Agency shall provide a written statement of the reasons
Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain
Agency's opinion of the action Developer must take to obtain a Certificate of Completion. If the
reason for such refusal is confined to the immediate availability of specific items or materials for
landscaping, or other minor so-called "punch list" items, Agency will issue its Certificate of
Completion upon the posting of a bond in an amount representing one hundred fifty percent
(150%) of the fair value of the work not yet completed or other assurance reasonably satisfactory
to Agency.
A Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements, or any part thereof. Such
Certificate of Completion is not notice of completion as referred to in the California Civil Code
Section 3093. Nothing herein shall prevent or affect Developer's right to obtain a Certificate of
Occupancy from the City before the Certificate of Completion is issued.
q5
4. (&515) Estoppels
No later than thirty (30) days after the request of Developer or any holder of a mortgage
or deed of trust, Agency shall, from time to time and upon the request of such holder, execute
and deliver to Developer or such holder a written statement of Agency that no default or breach
exists (or would exist with the passage of time, or giving of notice or both) by Developer under
this Agreement, if such be the determination of the Agency, and certifying as to whether or not
Developer has at the date of such certification complied with any obligation of Developer
hereunder as to which such holder may inquire. The form of any estoppel letter shall be prepared
by the holder or Developer and shall be at no cost to Agency.
Fi
YI. (&600) USES AND MAINTENANCE OF THE SITE
47
A. (6601) Uses of the Site
The Developer covenants and agrees for itself, its successors and assigns, which
covenants shall run with the land and bind every successor or assign in interest of Developer,
that during development of the Site pursuarit to this Agreement and thereafter, neither the Site
nor the improvements, nor any portion thereof, shall be improved, used or occupied in violation
of any applicable governmental restrictions or the restrictions of this Agreement. Furthermore,
Developer and its successors and assigns shall not initiate, maintain, commit, or permit the
maintenance or commission on the Site or in the improvements, or any portion thereof, of any
nuisance, public or private, as now or hereafter defined by any statutory or decisional law
applicable to the Site or the improvements, or any portion thereof'Elie—Developer—fur-1hef
IRV 922674 Red v1/v2 -36- Sunrise hacienda Partners DDA
eevenants and ees on behalf-of -t�el-f-a�icl t ucsesso-rs ai d ass gns tedevete, use, operate and
maintain the Site i see Fdanee-with-t-his- r-eerrlerrt—the-Grant-Deed;the 'e- l ngreement
a«�=.�oI,�r deorrrRents rece s tke�2�stl+steE�UTts p �,c �
Agreetnent-.
Notwithstanding anything to the contrary or that appears to be to the contrary in this
Agreement, Developer hereby covenants, on behalf of itself, and its successors and assigns,
which covenants shall run with the land and bind every successor and assign in interest of
Developer, that, Developer and such successors and assigns shall use the Site solely for the
purpose of constructing, maintaining and operating a residential rental project and d yeaFe eente
meeting the requirements and restrictions of this Agreement, the Grant Deed. and the
Regulatory Agreement including, without limitations, restriction of the rental and occupancy
of the Restricted Units only to Qualified Tenants for a rent not in excess of an Affordable Rent
for the period specified herein.
a
B. (�602) Affordable IIousirng.
a
I. Construction of Affordable 1-lousin<>. The Developer covenants and agrees
to construct a total of sixty-six (66) Units, including thirty-Two (32) Restricted Units and one (1)
Manager's Unit, in conformity with the Scope of Development. All of the Restricted Units shall
be restricted to rental at an Affordable Rent to Very Low and Low Income Households. the
ratio shall be 50/50 between Very Low and Low Income Households. The Units, including
the Manager's Unit, shall be composed of 8 one-bedroom units, 20 two-bedroom units, 20 three-
bedroom units, and 8 four-bedroom units. The location, size and specifications of the Restricted
Units shall be as set forth in the Scope of Development. All Restricted Units shall be subject to
and shall be leased in compliance with the Tenant Selection Criteria attached thereto.
b
I Restricted Unit Requirements. All Restricted Units constructed pursuant
to this Agreement shall be occupied at all times only by the household of the Qualified Tenant
who has rented that Restricted Unit. Developer covenants to cooperate with Agency in taking all
steps necessary to implement this requirement with respect to all Qualified Tenants. In addition,
all Qualified Tenants shall meet and shall be prioritized in accordance with the Tenant Selection
Criteria. The restrictions upon rental and use of each Restricted Unit shall continue for a period
of fifty-five (55) years from the recordation of Certificate of Completion.
c
3. Leasing of Residences by Developer
1-
IRV#22674 Red vIN2 -37- Sumiso Hacmnda Partners DDA
a Marketing Program. Prior to the deadline specified in the
Schedule of Performance, Developer shall prepare and obtain Agency's approval (which shall
not be unreasonably withheld) of a marketing and leasing program ("Approved Marketing
Program") for the selection of tenants for the Restricted Units at the Project. The Restricted
Units shall thereafter be marketed in accordance with the Approved Marketing Program as the
same may be amended by Developer from time to time with Agency's prior written approval,
which shall not be unreasonably withheld. Monthly during the initial lease-up period, and
annually thereafter, Developer shall provide Agency with a report with respect to Restricted
Units under lease, leases in default, status of implementation of the Approved Marketing
Program, and such other information as Agency may reasonably request. Agency agrees to
exercise reasonable efforts to assist Developer in connection with implementation of the
Approved Marketing Program; provided, Agency shall not be under any obligation to incur any
out-of-pocket expenses in connection therewith.
h. Restricted Residences. As set forth above, each of the Restricted
Units shall be rented to a Qualified Tenant for a rental rate which does not exceed an Affordable
Rent for the applicable Restricted Unit.
3
�. Annual Tenancy Report. Developer shall provide Agency
annually, by January 31, with a report on Project occupancy for each Restricted Unit, including
information concerning the number of months during which each Restricted Unit was occupied,
and the income category of each tenant household occupying a Restricted Unit. The annual
report and Developer's records related to each tenancy shall be subject to inspection and audit
upon Agency's written request
-. (6603) Obligation to Refrain from Discrimination.
There shall be no discrimination against, or segregation of, any persons, or group of
persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the rental, sale, lease, sublease, transfer, use, occupancy, or enjoyment of the Site, or any
portion thereof, nor shall Developer, or any person claiming under or through Developer,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Site or any portion thereof (except as permitted by this Agreement). The
nondiscrimination and nonsegregation covenants contained herein shall remain in effect in
perpetuity.
4
D. (&604) Form of Nondiscrimination and Nonsegreaation Clauses.
IRV Q2674 Red vI N2 _J S_ Sunr P ise Ilacienda mtnets DDA
Subject to the tenancy/occupancy restrictions on the Restricted Units not prohibited by
federal law as embodied in this Agreement, which may modify the following nondiscrimination
clauses, the following shall apply: Developer shall refrain from restricting the rental, sale, or
lease of any portion of the Site on the basis of race, color, creed, religion, sex, marital status,
ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be
subject to substantially the following nondiscrimination or nonsegregation clauses:
a7
L Deeds_. In Deeds the following language shall appear: "The grantee
herein covenants by and for himself or herself, his or her heirs, executors, administrators, and
assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee, or any
persons claiming under or through him or her, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed.
The foregoing covenants shall run with the land "
b7
I Leases7. In Leases the following language shall appear: "The lessee
herein covenants by and for himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through him or her, and this lease is made and
accepted upon and subject to the following conditions `That there shall be no discrimination
against or segregation of any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin or ancestry in the leasing, subleasing, transferring,
use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee, or any
person claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased."
E
I Contracts_. Any contracts which Developer or Developer's heirs,
executors, administrators, or assigns propose to enter into for the sale, transfer, or leasing of the
Site shall contain a nondiscrimination and nonsegregation clause substantially as set forth in
Section 603 and in this Section. Such clause shall bind the contracting party and subcontracting
party or transferee under the instrument
D. (§605) Maintenance of Improvements
Developer covenants and agrees for itself, its successors and assigns, and every successor
in interest to the Site or any part thereof, that, after Agency's issuance of its Certificate of
Completion the Developer shall be responsible for maintenance of all improvements that may
IRV 922674 Red vIN2 _�i9_ Swvi.se Hacienda Partner nnA
exist on the Site from time to time, including without limitation buildings, parking lots, lighting,
signs, and walls, in first-class condition and repair, and shall keep the Site free from any
accumulation of debris or waste materials The Developer shall also maintain all landscaping
required pursuant to Developer's approved landscaping plan in a healthy condition, including
replacement of any dead or diseased plants. The foregoing maintenance obligations shall run
with the land in accordance with and for the term of the Regulatory Agreement. Developer's
further obligations to maintain the Site, and Agency's remedies in the event of Developer's
default in performing such obligations, are set forth in the Regulatory Agreement. Developer
hereby waives any notice, public hearing, and other requirements of the public nuisance laws and
ordinances of the City that would otherwise apply, except as specified in said Regulatory
Agreements. Upon the sale of any portion of the Site, Developer (but not Developer's successor)
shall be released from the requirements imposed by this Section 605, and the financial liability
therefor, as to the portion of the Site conveyed.
6
E. (§606) 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 appealing in the Deed or the
Regulatory Agreement, for and in its own right for the purposes of protecting the interests of the
community in whose favor and for whose benefit the covenants running with the land have been
provided. The covenants in favor of Agency shall run without regard to whether Agency has
been, remains or is an owner of any land or interest therein in the Site, or in the Redevelopment
Project Area, and shall be effective as both covenants and equitable servitudes against the Site.
Agency shall have the right, if any of the covenants set forth in this Agreement which are
provided for its benefit are breached, to exercise all rights and remedies and to maintain any
actions or suits at law or in equity or other proper proceedings to enforce the curing of such
breaches to which it may be entitled. With the exception of the City, no other person or entity
shall have any right to enforce the terms of this Agreement under a theory of third-party
beneficiary or otherwise. The covenants running with the land and their duration are set forth in
the Deed and the Regulatory Agreement.
YII. (§700) SPECIAL PROVISIONS
A. Reserved
9
M. (U00) DEFAULTS, REMEDIES AND TERMINATION
}
�. (§801) Defaults. Right to Clue and Waivers
IRV 922674 Red vl/v2 -40- Sum ire hacienda Partners DDA
Subject to any Enforced Delay, failure or delay by either party to timely perform any
covenant of this Agreement constitutes a default under this Agreement, but only if the party who
so fails or delays does not commence to cure, correct or remedy such failure or delay within
thirty (30) days after receipt of a written notice specifying such failure or delay, and does not
thereafter prosecute such cure, correction or remedy with diligence to completion.
The injured party shall give written notice of default to the party in default, specifying the
default complained of by the injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against the party in default until thirty
(30) days after giving such notice Failure or delay in giving such notice shall not constitute a
waiver of any default, nor shall it change the time of default.
Except as otherwise provided in this Agreement, waiver by either party of the
performance of any covenant, condition, or promise, shall not invalidate this Agreement, nor
shall it be considered a waiver of any other covenant, condition, or promise. Waiver by either
party of the time for performing any act shall not constitute a waiver of time for performing any
other act or an identical act required to be performed at a later time. The delay or forbearance by
either party in exercising any remedy or right as to any default shall not operate as a waiver of
any default or of any rights or remedies or to deprive such party of its right to institute and
maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce
any such rights or remedies.
2
B. (,&802) Legal Actions.
a
1 Institution of Legal Actions. In addition to any other rights or remedies,
and subject to the requirements of Section 801, either party may institute legal action to cure,
correct or remedy any default, to recover damages for any default, or to obtain any other remedy
consistent with the purpose of this Agreement Legal actions must be instituted and maintained
in the Superior Court of the County of Riverside, State of California, in any other appropriate
court in that county, or in the Federal District Court in the Eastern Division of the Central
District of California.
b
2. Applicable Law and Forum. The laws of the State of California shall
govern the interpretation and enforcement of this Agreement
e
I 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.
IRV 422674 Red yr/v2 -41- SLH16s0 Hacienda Partners DDA
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.
3
-C. (§503) Rights and Remedies are Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or more of its rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party.
4
P. 804 Specific Performance.
In addition to any other remedies permitted by this Agreement, if either party defaults
hereunder by failing to perform any of its obligations herein, each party agrees that the other
shall be entitled to the judicial remedy of specific performance, and each party agrees (subject to
its reserved right to contest whether in fact a default does exist) not to challenge or contest the
appropriateness of such remedy In this regard, Developer specifically acknowledges that
Agency is entering into this Agreement for the purpose of assisting in the redevelopment of the
Site and not for the purpose of enabling Developer to speculate with land
5
E. (f805) Right of Reverter.
The Agency shall have the right, at its option, to reenter and take possession of the Site or
any portion thereof with all improvements thereon and to terminate and revest in the Agency the
estate conveyed to the Developer, if after conveyance of the estate and prior to the recordation of
the Certificate of Completion, the Developer (or its successors in interest) shall:
a
I. Fail to commence construction of the improvements as required by this
Agreement, if such failure is in violation of the Schedule of Performance, for a period of 90 days
after written notice to proceed from the Agency, provided that the Developer shall not have
obtained an extension or postponement to which the Developer may be entitled pursuant to this
Agreement; or
b
2. Abandon or substantially suspend construction of the improvements for a
period of 90 days after written notice of such abandonment or suspension from the Agency,
provided that the Developer shall not have obtained an extension of time to which the Developer
may be entitled pursuant to this Agreement; or
IRV 422674 Red vIN2 4 2_ Sum isa Hacienda Partners DDA
E
3. Assign or attempt to assign this Agreement, or any rights herein, or
transfer, or suffer any involuntary transfer of, the Site, or any part thereof, in violation of this
Agreement, and such violation shall not be cured within one hundred twenty (120) days after the
date of receipt of written notice thereof by the Agency to the Developer.
Agency's right to re-enter, repossess, terminate, and revest shall be secured by the Deed
of Trust attached hereto as Attachment No. 8; provided, however, that Agency's rights shall be
subject to and be limited by and shall not defeat, render invalid, or limit.
1. Any mortgage, deed of trust, or other security interests permitted by this
Agreement.
2. Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages, deeds oftrust, or other security interests
Upon the revesting in the Agency of possession of the Site, or any part thereof, as
provided in this Section 805, the Agency shall, pursuant to its responsibilities under state law,
use its best efforts to release, or resell the Site, as the case may be, or any part thereof, as soon
and in such manner as the Agency shall find feasible and consistent with the objectives of such
law and of the Redevelopment Plan to a qualified and responsible party or parties (as determined
by the Agency), who will assume the obligation of making or completing the improvements, or
such other improvements in their stead, as shall be satisfactory to the Agency and in accordance
with the uses specified for the Site, or any part thereof, in the Redevelopment Plan.
In the event of a resale, the proceeds thereof shall be applied as follows.
a. First, to reimburse the Agency on its own behalf or on behalf of the City
for all costs and expenses incurred by the Agency, including but not limited to, salaries to
personnel, legal costs and attorneys' fees, and all other contractual expenses in connection with
the recapture, management, and resale of the Site (but less any income derived by the Agency
from the Site or part thereof in connection with such management); all taxes, assessments and
water and sewer charges with respect to the Site (or, in the event the Site is exempt from taxation
or assessment or such charges during the period of ownership, then such taxes, assessments, or
charges, as determined by the City, as would have been payable if the Site were not so exempt);
any payments made or necessary to be made to discharge or prevent from attaching or being
made any subsequent encumbrances or liens clue to obligations incurred with respect to the
making or completion of the agreed improvements or any part thereof on the Site or part thereof,
and amounts otherwise owing the Agency by the Developer, its successors, or transferees; and
b. Second, to reimburse the Developer, its successor or transferee, up to the
amount equal to (i) the stun of the Purchase Price paid to the Agency by the Developer for the
Site, (ii) the costs incurred for the development of the Site and for the agreed improvements
existing on the Site at the time of the re-entry and repossession, less (iii) any gains or income
withdrawn or made by the Developer from the Site or the improvements thereon.
IRV 922674 Red vI/v2 -4 j- Sunrise Hacienda Partners DDA
C. Any balance remaining after such reimbursements shall be retained by the
Agency as its property.
To the extent that the right established in this Section involves a forfeiture, it must be
strictly interpreted against the Agency, the party for whose benefit it is created. The rights
established in this Section are to be interpreted in light of the fact that the Agency will sell the
Site to the Developer for less than fair marl.et value for development as an affmrdable
Iousine mroiec , and not for speculation in undeveloped land.
6
E. (§806) 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
9
IX. (§900) GENERAL PROVISIONS
}
A. (8901) Notices, Demands and Communications Between the Parties.
Except as expressly provided to the contrary herein, any notice, consent, report, demand,
document or other such item to be given, delivered, furnished or received hereunder shall be
deemed given, delivered, furnished, and received when given in writing and personally delivered
to an authorized agent of the applicable party, or upon delivery by the United States Postal
Service, first-class registered or certified mail, postage prepaid, return receipt requested, or by a
national "overnight courier" such as Federal Express, at the time of delivery shown upon such
receipt; or by facsimile, if such facsimile is followed by a notice sent out the same day by mail;
in any case, delivered to the address, addresses and persons as each party may from time to time
by written notice designate to the other and who initially are:
IRV#22674 Red vllv2 -44- Sunrise hacienda Partners DDA
Agency: Palm Springs Community Redevelopment Agency
3200 E Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: Executive Director
Copy to: Burke, Williams & Sorensen, LLP
18301 Von Karman Avenue, Suite 1050
Irvine, CA 92612
Attn: David J. Aleshire, Esq
Developer: Sunrise Hacienda Partners, LP
c/o Coachella Valley Housing Coalition
45-701 Monroe Street, Suite G, Plaza I
Indio, CA 92201
Attri Executive Director
Copy to. Gubb & Barshay, LLP
50 California Street, Suite 3155
San Francisco, CA 94111
Attn. Natalie Gubb, Esq.
-2 B. (§902) Nonliability of Cityand Agency Officials and Emp_ lo_yees: Conflicts of
Interest: Commissions.
a
1. Personal Liabilitv. No member, official, employee, agent or contractor of
City or Agency shall be personally liable to Developer in the event of any default or breach by
Agency or for any amount which may become due to Developer or on any obligations under the
terms of the Agreement; provided, it is understood that nothing in this Section 902 is intended to
limit Agency's liability.
b
2. Financial hnterest. No member, official, employee or agent of City or
Agency shall have any financial interest, direct or indirect, in this Agreement, nor participate in
any decision relating to this Agreement which is prohibited by law.
s
3. Commissions. Neither the Agency nor the Developer has retained any
broker or finder or has paid or given, and will not pay or give, any third person any money or
other consideration for obtaining this Agreement Neither party shall be liable for any real estate
commissions, brokerage fees or finders fees which may arise from this Agreement, and each
party agrees to hold the other harmless from any claim by any broker, agent, or finder retained
by such party.
IRV 922674 Red vIN2 -45- Sunrise Hacienda Partners DDA
3
-. (§903) Enforced Delay: Extension of Times of Performance
Time is of the essence in the performance of this Agreement
Notwithstanding the foregoing, in addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in default where delays or
defaults are due to war; insurrection, strikes; lock-outs, riots, floods; earthquakes; fires;
casualties; supernatural causes; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; subsurface conditions on the Site and unknown soils
conditions; governmental restrictions or priority litigation; unusually severe weather; inability to
secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier;
acts of the other party; acts or the failure to act of a public or governmental agency or entity
(except that acts or the failure to act of Agency or City shall not excuse performance by Agency
unless the act or failure is caused by the acts or omissions of Developer); or any other causes
beyond the reasonable control or without the fault of the party claiming an extension of time to
perform. In the event of such a delay (herein "Enforced Delay"), the party delayed shall
continue to exercise reasonable diligence to minimize the period of the delay. An extension of
time for any such cause shall be limited to the period of the enforced delay, and shall commence
to run from the time of the commencement of the cause, provided notice by the party claiming
such extension is sent to the other party within ten (10) days of the commencement of the cause.
The following shall not be considered as events or causes beyond the control of
Developer, and shall not entitle Developer to an extension of time to perform: (i) Developer's
failure to obtain financing for the Project (except as provided in Section 401), and (ii)
Developer's failure to negotiate agreements with prospective users for the Project or the alleged
absence of favorable market conditions for such uses
Times of performance under this Agreement may also be extended by mutual written
agreement by Agency and Developer. The Executive Director of Agency shall have the
authority on behalf of Agency to approve extensions of time not to exceed a cumulative total of
one hundred eighty (180) days with respect to the development of the Site.
4
P. (&904) Books and Records
a
I. Developer to Keen 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
IRV#22674 Red vl/v2 -46- Sum ise Hacienda Parin,as DDA
2. Right to Inspect. Either party shall have the right, upon not less than
seventy-two (72) hours notice, at all reasonable times, to inspect the books and records of the
other party pertaining to the Site as pertinent to the purposes of this Agreement
e
3. Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Developer, its employees, agents and subcontractors,
in the performance of this Agreement, shall be delivered to Agency in the event of a termination
of this Agreement, and Developer shall have no claim for additional compensation as a result of
the exercise by Agency of its rights hereunder. The Agency shall have an unrestricted right to
use such documents and materials as the owner of the same. Developer makes no warranty or
representation regarding the accuracy or sufficiency of such documents for any future use by
Agency, and Developer shall have no liability therefor.
3
j4;. (§905) Assurances to Act in Good Faith
Agency and Developer agree to execute all documents and instruments and to take all
action, including deposit of fiords in addition to such funds as may be specifically provided for
herein, and as may be required in order to consummate conveyance and development of the Site
as herein contemplated, and shall use their best efforts, to accomplish the closing and subsequent
development of the Site in accordance with the provisions hereof Agency and Developer shall
each diligently and in good faith pursue the satisfaction of any conditions or contingencies
subject to their approval.
6
E (&906) Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply. The Section
headings are for purposes of convenience only, and shall not be construed to limit or extend the
meaning of this Agreement. This Agreement includes all attachments attached hereto, which are
by this reference incorporated in this Agreement in their entirety. This Agreement also includes
the Redevelopment Plan and any other documents incorporated herein by reference, as though
fully set forth herein.
7
G. (�907) Entire Agreement, Waivers and Amendments
This Agreement integrates all of the terms and conditions mentioned herein, or incidental
hereto, and this Agreement supersedes all negotiations and previous agreements between the
parties with respect to all or any part of the subject matter hereof All waivers of the provisions
of this Agreement, unless specified otherwise herein, must be in writing and signed by the
IRV 922674 Red vVv2 -47- Sunrise Hacienda Partners DDA
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.
S
H. (008) Severability
In the event any term, covenant, condition, provision or agreement contained herein is
held to be invalid, void or otherwise unenforceable, by any court of competent jurisdiction, such
holding shall in no way affect the validity or enforceability of any term, covenant, condition,
provision or agreement contained herein.
9
I. (§909) Effect of Redevelopment Plan Amendment
Pursuant to the provisions of the Redevelopment Plan for modification or amendment
thereof, Agency agrees that no further amendment to the Redevelopment Plan which changes the
uses or development permitted on the Site, or changes the restrictions or controls that apply to
the Site, or otherwise affects the Site, shall be made or become effective as to the Site without
the prior written consent of Developer. Further amendments to the Redevelopment Plan
applying to other property in the Project Area shall not rewire the consent of Developer.
4-0
I. (§910) Time for Ageeptance 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 fin-ther extensions of time for the authorization, execution, and delivery of this
Agreement. After execution by Developer, this Agreement shall be considered an irrevocable
offer until such time as such offer shall become void due to the failure of the Agency to
authorize, execute and deliver the Agreement in accordance with this Section.
14
K. (011) Execution.
a
I 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.
b
2. Agency represents and warrants that: (i) it is a Redevelopment Agency
duly organized and existing under the laws of the State of California; (ii) by proper action of
IRV#22674 Red v1/v2 -48- Sunrise Hacienda Pmtnees DDA
Agency, Agency has been duly authorized to execute and deliver this Agreement, acting by and
through its duly authorized officers; and (iii) the entering into this Agreement by Agency does
not violate any provision of any other agreement to which Agency is a party
e
I Developer represents and warrants that: (i) it is duly organized and
existing under the laws of the State of California; (ii) by proper action of Developer, Developer
has been duly authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers; and (iii) the entering into this Agreement by Developer does not violate any
provision of any other agreement to which Developer is a party.
[END -- SIGNATURRS ON NEXT PACE]
IRV#22674 Red v]/v2 _49_ SLIM ise hacienda Partners DDA
IN WITNESS WHJ--REOF, the parties hereto have executed this Agreement as of the date
of execution by the Agency.
"AGENCY"
THE COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS,
a public body, corporate and politic
Date Chairman
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
BURKE, WILLIAMS & SORENSEN, LLP
David J. Aleshire, Agency Counsel
"DEVELOPER"
SUNRISE HACIENDA PARTNERS
a California limited partnership
BY:
Its General Partner
Date Name:
Title.
[END Ot' SIONAT11R1 S]
IRV#22674 Red vIN2 -50- Sum'isz I lacienda Partners DDA
ATTACHMENT NO 1
SUNRISE HACIENDA PARTNERS
SITE MAP
[To Be Inserted]
IRV 922674 Red vI/v2 ATTACHMENT NO.1
TO SUNRISE HACIENDA DDA
PAGE 1 or 1
ATTACHMENT NO. 2
SUNRISE HACIENDA DDA
LEGAL DESCRIPTION
That certain real property located in the City of Palm Springs, County of Riverside, State of
California, more particularly described as follows
IRV 122674 Red vVv2 ATTACHMENT NO.2
TO SUNRISE HACIENDA DDA
PAGE I OR I
ATTACHMENT NO, 3
SUNRISE HACIENDA DDA
SCHEDULE OF PERFORMANCE
Item To Be Performed Time for Performance Agreement
Reference
1. Developer executes and On or before June 26, 2002
delivers DDA to Agency
2. Agency holds public hearing on July 3, 2002
DDA
3. Agency approves or July 10, 2002 810
disapproves DDA and, if
approves, executes DDA
4. Developer shall apply for Tax On or before July 17, 2002, 401
Credit financing. provided that if Developer is
not successful in obtaining an
award from the Tax Credit
Allocation Committee in the
2002 finding cycle, the
Developer shall submit a
second application in the 2003
funding cycle. All times listed
in this Schedule of
Performance shall be extended
to the extent necessary to
provide for the second
application
IRV 422674 Red vl/v2 ATTACHMENT NO.3
TO SUNRISE HACIENDA DDA
PAGE 1 or 5
Item To Be Performed Time for Performance Agreement
Reference
5. Agency s l €rrst On or before September 15, 401; 408
insta{I+riant payvpeit o-f 2002; provided that if
e.nn nn.,, 00-to Develeper—. W-it-hin Developer is not successfid in
d0 dnys a er ganef the obtaining an award from the
DD A. 4036. Developer shall Tax Credit Allocation
demonstrate to the reasonable Committee in the 2002
satisfaction of Agency evidence funding cycle, the Developer
of awards, commitments or shall submit a second
reservations of Housing application in the 2003
Program Funds funding cycle. All times listed
in this Schedule of
Performance shall be extended
to the extent necessary to
provide for the second
application
-7-6. Open Escrow for the Within two (2) weeks after 404
conveyance of the Site from Developer notifies Agency
Agency to Developer that Event No. 6 has been
completed and has received a
commitment of Low income
Housing Tax Credits.
97. Developer provides Agency Within 90 days after award of 405.2; 408
with evidence of financial Tax Credit allocations, but
capability prior to issuance of building
permits
}$. Agency approves evidence of Within 30 days after receipt by 405.2(a)
financial capability Agency
9. Developer secures financial Within 90 days after award of 405,1(d);
commitment Tax Credit allocations, but 408
prior to issuance of building
permits
31 1_0. Agency approves or Within 30 days after receipt by 405.1(d)
disapproves financial Agency 408
commitment and lender
4-2 11. Agency delivers to Developer Within 30 days after Agency 407.4
Preliminary Title Report acquires Site from Developer
IRV 422674 Red vUv2 ATTACHMENT NO.3
TO SUNRISE HACIENDA DDA
PACE 2 or 5
Item To Be Performed Time for Performance Agreement
Reference
4-3 12. Developer approves or Within 15 days after delivery 407.4
disapproves title exceptions of Preliminary Title Report to
Developer
4-413. Agency delivers notice to Within 15 days after receipt of 407.4
Developer as to whether it will Developer's notice
cure disapproved exceptions
4514. [Developer prepares and [Within 90 days after Agency 502.2
submits to City and Agency executes the DDA]
preliminary and, thereafter,
final drawings and
specifications prepared in
accordance with Concept
Drawings and Site Plan,
including architectural theme
and treatment]
4-615. [City and Agency approve (or [Within times set forth in 502 2, 502.5
disapprove) preliminary and, Section 502]
thereafter, final drawings and
specifications, and if
disapproves, Developer revises
and resubmits preliminary or
final drawings]
4-7 10. Escrow Agent gives notice of One (1) week prior to Closing 4072
fees, charges, and costs to close
Escrow
4917. Deposits into Escrow by
Agency:
a) Executed Deed On or before 1:00 p in on the 406.3
last business day preceding the
Closing Date
b) Estoppel Certificate On or before 1 '00 p in on the 406.3
last business day preceding the
Closing Date
IRV 922674 Red v1/v2 ATTACHMENT NO.3
To SUNRISE HACIENDA DDA
PAGE 3 or 5
Item To Be Performed Time for Performance Agreement
Reference
c) Payment of Agency's share On or before 1:00 p.m, on the 406.3; 410
of Escrow Costs. last business day preceding the
Closing Date
d) Taxpayer ID Certificate Prior to Closing Date 406.3
e) FIRPTA Certificate Within 15 days after opening 406.1
I-9 A Deposits into Escrow by
Developer:
a) Estoppel Certificate On or before 1.00 p m on the 4064
last business date preceding
the Closing Date
b) Regulatory Agreement On or before 1:00 p.m on the 406.4
and Deed of Trust last business date preceding
the Closing Date
c) Payment of Developer's On or before 1 :00 p.m. on the 406.4; 410
Share of Escrow Costs last business date preceding
the Closing Date
d) Certificates evidencing Prior to closing, site 507
insurance preparation or construction
e) Taxpayer ID Certificate Prior to Closing Date 406.3
20 1-9. Agency or Developer, as case Within 30 days after date 411.2; 801
may be, may cure any condition established therefor, or date of
to closing disapproved or breach, as the case may be
waived; or may cure any
default
24 24. Close of Escrow for the Site; As soon as possible, but not 405; 406
recordation and delivery of later than [ , 2001]
documents
IRV 922674 Red vIN2 ATTACHMENT NO,3
TO SUNRISE HACIENDA DDA
PAGE 4 or 5
Item To Be Performed Time for Performance Agreement
Reference
2221. Developer obtains all necessary Within [30] days after Close of
permits and approvals, submits Escrow; but not later than
certificates of insurance, and [December 1, 20011.
commences construction of
improvements on the Site
23 2_2. Agency disburses Agency Provided Developer has 403
Financial Assistance to received Tax Credits (Event
Developer—$22a-5-,000-by-h y No. 6) and has proceeded to
9.0�-003 an $225,000--by�4t4y construction (Event No 22)
11 zn - , p d ngrsuant to
submittal and reimbursement
requirements in Section 403
24 23. Developer completes Within [twenty-four (24)] 505
construction of improvements months after issuance of
on the Site. building permits for the first
Unit.
25 24. Agency issues Certificate of Within 30 days of written 514
Completion for the Site. request by Developer, and
Developer's satisfactory
completion of all
improvements on the Site.
26 25. Developer shall achieve at least Not later than six (6) months
a ninety percent (90%) lease-up after completion of
rate of the Project: construction on the Site
It is understood that the foregoing Schedule of Performance is subject to all of the terms
and conditions set forth in the text of the Agreement. The summary of the items of performance
in this Schedule of Performance is not intended to supersede or modify the more complete
description in the text; in the event of any conflict or inconsistency between this Schedule of
Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended
only by written agreement signed by both Developer and Agency. A failure by either party to
enforce a breach of any particular time provision shall not be construed as a waiver of any other
time provision The Executive Director of Agency shall have the authority to approve extensions
of time without Agency Board action not to exceed a cumulative total of 180 days as provided in
Section 903.
IRV 422674 Red vrlv2 ATTACHMENT NO 3
TO SLMRISE HACIENDA DDA
PAGE 5 of 5
ATTACHMENT NO. 4
SUNRISE HACIENDA DDA
SCOPE OF DEVELOPMENT
1. PROJECT CONCEPT
The Project Concept encompasses the development and operation by Developer of an
approximately 6.2 acre site (hereinafter "Site") in the City of Palm Springs. The Developer shall
develop and operate the Site in accordance with the terms of the Agreement with a high quality
residential development containing (i) sixty-six (66) rental dwelling units, including 8 one-
bedroom, 20 two-bedroorn/one bath units, 20 three-bedroom/two bath units, and 8 four-bedroom
units; (ii) a laundry/community/restroon building, (iii) three (3) a tot lot areas; (iv) an 800 s.f
community pool; and (v) other related amenities, all as described in the plans approved by the
City in connection with the City's approval of the Planned Development District for the Project.
The 66 Units will range in size from approximately 904 square feet (for the two-bedroom Units)
to 1,403 square feet (for the four-bedroom Units). Thirty-two (32) of the units shall be
Restricted Units, which will be restricted to rental at an Affordable Housing Cost to Very Low
and Low Income Households, as provided in this Agreement
The Developer and Agency agree that the Site shall be developed and improved by
Developer in accordance with the provisions of this Agreement, which includes the Planned
Development District, subject to all applicable codes, ordinances, and statutes including
requirements and procedures set forth in the Palm Springs Municipal Code and the
Redevelopment Plan, adopted in conjunction with or subsequent to adoption of this Agreement.
Any issues regarding the Scope of Development that are not resolved herein or in the Agreement
shall be resolved in accordance with the Palm Springs Municipal Code Upon completion, the
Site shall be operated by Developer as rental housing for low and very low income households in
accordance with the Regulatory Agreement. The Developer shall not sell any portion of the Site
except as provided in the Regulatory Agreement.
2. SITE DESCRIPTION
The Site is located on the west side of Sunrise Way, just north of San Rafael Road, as
more fully described in the Site Map attached to the Agreement as Attachment No. 1.
3. DEMOLITION AND CLEARANCE
T-he
Willi the exception of any specified agency assistance reimbursements in paragraph
¢, t11e Developer shall be responsible for all on-site work and improvements, including, but not
limited to the following:
1. Developer shall be responsible for all demolition, removal, utility
relocation, and other work necessary to prepare the Site for the improvements contemplated by
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the Agreement, and shall be responsible for all construction and configuration of the Restricted
Units in accordance with the approved plans thereof.
2. Restoring those streets adjacent to the Site, if any, that undergo utility
trenching needed to provide house connections to service the Site. The streets shall be restored
to the condition prior to construction, with materials acceptable to the City Engineer
3. The Developer shall be responsible for the repair and protection of off-site
improvements during construction of the on-site improvements. Any off-site improvements
found damaged shall be reconstructed or provided for by the Developer to the satisfaction of the
Director of Public Works,
4. Developer shall plant or provide for street trees adjacent to the Site,
including tree root barriers, to the satisfaction of the Director of Public Works. All required
street trees, and any landscaping and sprinkler systems, shall be maintained by the Developer
and/or successors.
5. Developer shall provide or construct sidewalks, as shown on the approved
Conceptual Plans, to the satisfaction of the Director of Public Works,
6. Developer shall submit a drainage plan with hydrology and hydraulic
calculations, if requested, showing building elevations and drainage patterns and slopes, for
review and approval by the Director of Planning and Building and the Director of Public Works.
All required drainage/grading shall be provided in accordance with approved plans
4. SITE PREPARATION
Developer shall, at its sole cost and expense, perform or cause to be performed grading
plan preparation, fine grading and related compaction, and other site preparation as necessary for
construction of the Project, as approved by the City Engineer/Public Works Director. Plans shall
be prepared by a licensed civil engineer in good standing and subject to the approval of the City
Engineer/Public Works Director.
Developer shall, at its sole cost and expense, scarify, over-excavate, cut, fill, compact,
rough grade, and/or perform all grading as required pursuant to an approved grading plan(s) to
create finished lots, building pads, and appropriate rights-of-way configurations necessary to
develop the Project described herein.
5. PROJECT DESIGN
a. Architectural Concept
The Project shall be designed and constructed as an integrated development in which the
buildings shall have architectural excellence The improvements to be constructed on the Site
shall be of high architectural quality, shall be well landscaped, and shall be effectively and
aesthetically designed, in accordance with the approved Planned Development District. The
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shape, scale of volume, exterior design, and exterior finish of each building, structure, and other
improvements must be consonant with, visually related to, physically related to, and an
enhancement to each other and, to the extent reasonably practicable, to adjacent improvements
existing or planned within the Project Area The Developer's plans, drawings, and proposals
submitted to the Agency for approval shall describe in reasonable detail the architectural
character intended for the Project. The open spaces between buildings on the residential portion
of the Site, where they exist, shall be designed, landscaped and developed with the same degree
of excellence. The total development shall be in conformity with the Redevelopment Plan for
the Project Area.
12. Site Work
The Project shall substantially conform to the site and building plans approved pursuant
to subsection A above and with the Site Map attached to the Agreement as Attachment No. 1. It
shall be the responsibility of the Developer, the architect and the contractor to develop the
Project consistent with the aforementioned plans. Any substantial modification to the approved
site or building plans, as determined by the Director of Community Development, shall be
referred to the Planning Commission for review and approval. The Developer shall be
responsible for the construction and installation of all improvements to be constructed or
installed on the Site, including but not limited to the following
AGENCY ASSISTANCE
The Agencyslprovidence financial assistance in addition to the land value of a
maximum amount of Seven Hundred [nifty Thousand Dollars (S750.000) as reimbursement
for the verified improvement costs specified in Exhibit f attached hereto and incorporated
herein by this reference.
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