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Building Horizons/DDA 94ORIGINAL DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN LA QUINTA REDEVELOPMENT AGENCY, AGENCY BUILDING HORIZONS DEVELOPER TABLE OF CONTENTS - continued TABLE OF CONTENTS Page Page I. [§100] SUBJECT OF AGREEMENT .............................. A. [§101] Purpose of Agreement .............................. B. [§102] The Redevelopment Plan ............................. C. [§103] The Site ....................................... D. [§104] Parties to the Agreement ............................. 1. [§105] The Agency ................................ 2. [§106] The Developer ............................. 3. [§107] Prohibition Against Change in Ownership, Management and Control of Developer and Prohibition Against Transfer of theSites .................................. E. [§108] Representations by the Developer ....................... II. [§200] ACQUISITION AND DISPOSITION OF THE SITES ............... A. [§201] Agency Assistance ................................ B. [§202] Acquisition of the Site .............................. C. [§203] Disposition of the Site .............................. D. [§204] Escrow ...................................... . E. [§205] Conveyance of Title and Delivery of Possession .............. F. [§206] Form of Deed for the Conveyance(s) ..................... G. [§207] Condition of Title ................................. H. [§208] Time for and Place of Delivery of Grant Deed ............... I. [§209] Recordation of Documents ............................. J. [§210] Title Insurance ................................... K. [§211] Taxes and Assessments .............................. L. [§213] Condition of the Site ............................... M. [§215] Conditions Precedent to the Agency Conveyance(s) ............ N. [§216] Construction Loan Financing ......................... O. [§217] Conveyances to Eligible Persons and Families .............. III. [§300] DEVELOPMENT OF THE SITE ........................... A. [§301] Development of the Site . ........................ . 1. [§302] Scope of Development ........................ 2. [§303] Site Plan ................................. 3. [§304] Construction Drawings and Related Documents ......... .4. [§305] Review and Approval of Plans, Drawings, and Related Documents ............................... 5. [§306] Cost of Development ......................... 6. [§307] Construction Schedule .. ..................... . 7. [§308] Indemnity, Bodily Injury and Property Damage Insurance ... 8. [§309] City and Other Governmental Agency Permits .......... 9. [§310] Rights of Access ............................ 10. [§311] Local, State and Federal Laws ................... 1 1 1 1 2 2 2 2 3 4 4 4 5 5 7 7 7 8 8 8 8 9 9 10 10 10 10 10 11 11 11 12 12 12 13 13 14 PUBL:18856 211871B2338.0 i 09/30/94 TABLE OF CONTENTS - continued Page 11. [§312] Anti -Discrimination .......................... 14 12. [§313] Taxes and Assessments ........................ 14 B. [§314] Prohibition Against Transfer of the Sites, the Buildings or Structures Thereon and Assignment of Agreement ............ 14 C. [§321] Right of the Agency to Satisfy Other Liens on the Site(s) After Title Passes .................................... 15 D. [§322] Certificate of Completion ........................... 15 IV. [§400] USE OF THE SITE ................................... 16 A. [§401] Affordable Housing ............................... 16 B. [§402] Uses In Accordance with Redevelopment Plan; Nondiscrimination .. 22 C. [§403] Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction ...................... 23 D. [§404] Maintenance of the Sites ............................ 24 V. [§500] DEFAULTS AND REMEDIES ............................ 24 A. [§501] Defaults -- General ............................... 24 B. [§502] Legal Actions .................................. 24 1. [§503] Institution of Legal Actions ..................... 24 2. [§504] Applicable Law ............................. 25 3. [§505] Acceptance of Service of Process .................. 25 C. [§506] Rights and Remedies Are Cumulative .................... 25 D. [§507] Inaction Not a Waiver of Default ...................... 25 E. [§508] Remedies and Rights of Termination Prior to Conveyances ....... 25 1. [§509] Damages . ................................. 25 2. [§510] Specific Performance ......................... 25 3. [§511] Right of Termination by the Developer Prior to the Conveyance ............................... 26 4. [§512] Termination by the Agency Prior to the Conveyance ...... 26 F. [§513] Remedies of the Parties for Default After the Conveyance ....... 27 1. [§514] Termination and Damages ...................... 27 2. [§515] Action for Specific Performance .................. 27 G. [§516] Reentry and Revesting of Title in the Agency After the Conveyances ................................... 27 VI. [§600] GENERAL PROVISIONS ............................... 29 A. [§601] Notices, Demands and Communications Between the Parties ...... 29 B. [§602] Conflicts of Interest ............................... 29 C. [§603] Enforced Delay; Extension of Times of Performance .......... 29 D. [§604] Non -Liability of Officials and Employees of the Agency and the Developer ..................................... 30 E. [§605] Entire Agreement, Waivers .......................... 30 VII. [§700] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ........ 30 Pun: 18856 211871 B2338.0 11 09/30/94 TABLE OF CONTENTS - continued Page ATTACHMENTS Attachment No. 1 Scope of Development Attachment No. 2 Schedule of Performance Attachment No. 3 Grant Deed Attachment No. 4 Developer Promissory Note Attachment No. 5 Developer Deed of Trust Attachment No. 6 Construction Promissory Note Attachment No. 7 Construction Deed of Trust Attachment No. 8 Promissory Note Attachment No. 9 Second Deed of Trust Attachment No. 10 Declaration of Conditions, Covenants and restrictions Attachment No. 11 Certificate of Completion Attachment No. 12 Maximum Sales Price Example Attachment No. 13 Certificate of Proposed Transferee Attachment No. 14 Notice of Intent to Transfer Attachment No. 15 Request for Approval of Proposed Transferee Attachment No. 16 Assumption Agreement PUBL:18856 211871B2338.0 iii 09/30/94 DISPOSITION AND DEVELOPMENT AGREEMENT This Disposition and Development Agreement ("Agreement") is entered into by and between LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency") and BUILDING HORIZONS, a California nonprofit public benefit corporation (the "Developer"). The Agency and the Developer (collectively herein referred to as the "Parties") hereby agree as follows: I. [§100] SUBJECT OF AGREEMENT A. [§101] Purpose of Agreement The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the La Quinta Redevelopment Project (the "Project") by providing for the improvement of certain property situated within the Project Area of the Project (the "Project Area"), by assisting in the disposition and development of two parcels (the "Site") situated within the Project Area, including the completion of single-family homes and public improvements related to the development (as these improvements are defined hereafter in Section 302 of this Agreement) and the long-term maintenance of such housing at an affordable housing cost for persons and households of low and moderate -income, all as more fully described in this Agreement. Pursuant to this Agreement, the Site shall be developed and improved by the Developer in accordance with the terms of this Agreement. The disposition and development of the Site and the occupancy of the units as developed by households of limited incomes all as provided in this Agreement are in the vital and best interests of the City of La Quinta (the "City") and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements under which the Project has been undertaken. B. [§102] The Redevelopment Plan The Redevelopment Plan for Project Area No. 1 (the "Redevelopment Plan") was approved and adopted by Ordinance No. 43 of the City Council of the City of La Quinta on November 29, 1983; said ordinance and the Redevelopment Plan are incorporated herein by reference. C. [§103] The Site The "Site" consists of two parcels of real property within the Project Area legally described as Lot 8, Block 209 and Lot 9, Block 209 in the City of La Quinta, County of Riverside. The parties intend that a maximum of two (2) detached, single-family homes will be developed within the Project Area in accordance with the "Scope of Development" and by the times set forth in the "Schedule of Performance," which are attached hereto as Attachment Nos. 1 and 2, respectively, and incorporated herein by reference, and the other terms and conditions set forth herein. PVBL:18856 21187 ( B2338.0 1 09/30/94 Any material change, as reasonably determined by the Agency, in the Scope of Development (Attachment No. 1) or in the approved site plan which affects the size, quality, or type of development proposed for one or more of the Sites shall require the written approval of the Agency, which approval may be contingent upon the review .and renegotiation of all of the economic and financial terms of this Agreement and such other matters as the Agency shall deem appropriate. D. [§104] Parties to the Agreement 1. [§105] The Agency The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California, Division 24 of the California Health and Safety Code, the principal office of the Agency is located at 78-495 Calle Tampico, La Quinta, California 92253, or such other address as Agency shall hereafter designate in writing to Developer. "Agency", as used in this Agreement, includes the La Quinta Redevelopment Agency and any and all assignees of or successors to its rights, powers and responsibilities. 2. [§106] The Developer The Developer, Building Horizons, is a California nonprofit public benefit corporation. The principal office and mailing address of the Developer for purposes of this Agreement is P.O. Drawer 10320, Indio, California 92202. By executing this Agreement, each person signing on behalf of the Developer warrants and represents to the Agency that the Developer has the full power and authority to enter into this Agreement, that all authorizations required to make this Agreement binding upon the Developer have been obtained, and that the person or persons executing this Agreement on behalf of the Developer are fully authorized to do so. Whenever the term "Developer" is used in this Agreement, such term shall include any and all nominees, assignees, or successors in interest as herein provided. 3. [§107] Prohibition Against Change in Ownership. Management and Control of Developer and Prohibition Against Transfer of the Sites The qualifications and identity of the Developer are of particular interest to the Agency. It is because of these qualifications and identity that the Agency has entered into this Agreement with the Developer. Consequently, no person, whether a voluntary or involuntary successor of Developer shall acquire any rights or powers under this Agreement nor shall the Developer assign all or any part of this Agreement or the Sites without the prior written approval of the Agency. A voluntary or involuntary sale or transfer of any interest in the Developer or the Site prior to the issuance of a Certificate of Completion for the Improvements with respect to such Sites shall be deemed to constitute an assignment or transfer for the purposes PUBL:18856 211871B2338.0 2 09/30/94 of this Section 107, and the written approval of the Agency shall be required prior to effecting such an assignment or transfer. Any purported transfer, voluntarily or by operation of law, except with the prior written consent of the Agency, shall render this Agreement absolutely null and void and shall confer no rights whatsoever upon any purported assignee or transferee. Prior to the issuance of a Certificate of Completion for the Improvements, the Developer shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any rights or duties herein, nor make any total or partial sale, transfer, conveyance, or assignment of the whole or any part of the Site or the Developer Improvements thereon, without the prior written approval of the Agency. Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an assignment of this Agreement or transfer of the Sites or any interest therein shall not be required in connection with the conveyance or dedication of any portion of the Site to the City of La Quinta or other appropriate governmental agency, including public utilities, where the granting of such easements permits or facilitates the development of the Site.. This Section 107 shall become inapplicable for each Site as to which the Agency shall have issued a Certificate of Completion pursuant to Section 322 of this Agreement. E. [§108] Representations by the Developer The Developer represents and warrants to the Agency as follows: 1. The Developer is duly established and in good standing under the laws of the State of California and has duly authorized, executed and delivered this Agreement and any and all other agreements and documents required to be executed and delivered by the Developer in order to carry out, give effect to, and consummate the transactions contemplated by this Agreement. This Agreement is enforceable against the Developer in accordance with its terms. 2. The Developer does not have any contingent obligations or contractual agreements which could adversely affect the ability of the Developer to carry out its obligations hereunder. 3. There are no pending or, so far as is known to the Developer, threatened, legal proceedings to which the Developer is or may be made a party or to which it or any of its property is or may become subject, which have not been fully disclosed in the material submitted to the Agency, which could adversely affect the ability of the Developer to carry out its obligations hereunder. 4. There is no action or proceeding pending or, to the Developer's best knowledge, threatened, looking toward the dissolution or liquidation of the Developer and there is no action or proceeding pending or, to the Developer's best knowledge, threatened by or against the Developer which could affect the validity and enforceability of the terms of this Agreement, or adversely affect the ability of the Developer to carry out its obligations hereunder. S. The Developer has, and will as required by its obligations hereunder, dedicate, allocate and otherwise make available, sufficient financial and other resources to perform its obligations under this Agreement. PUBL:19856 211871B2338.0 3 09/30/94 Each of the foregoing items 1 to 5, inclusive, shall be deemed to be an ongoing representation and warranty and shall survive the close of escrow for the Site(s). The Developer shall advise the Agency in writing if there is any change pertaining to any matters set forth or referenced in the foregoing items 1 to 5, inclusive. II. [§200] ACQUISITION AND DISPOSITION OF THE SITES A. [§201] Agency Assistance The "Agency Assistance" shall be comprised of three components: (1) acquisition and transfer of the Site; (2) construction financing; and (3) second trust deed assistance for the moderate income buyer. The Agency Assistance shall be paid in three (3) installments: 0) Agency funds expended for the acquisition of each Site, as well as the escrow costs and conveyance incurred in the disposition to the Developer, shall be paid as of the conveyance of the Site to the Developer (the "Site Cost") repayment of Site Cost to be secured by the Developer Promissory Note and Developer Deed of Trust (Attachment Nos. 4 and 5, attached hereto and incorporated herein by this reference); (ii) Agency Funds for the Construction Loan in an amount not to exceed $85,000 for each of the housing units shall be dispersed according to a combination of a construction schedule and invoice documentation to be approved by the Agency Executive Director pursuant to the Construction Promissory Note and repayment secured by the Construction Deed of Trust (Attachment Nos. 6 and 7 respectively); and (iii) Home Buyer Assistance funds which shall be in the form of a second trust deed loan to assure the affordability of the housing unit to moderate income buyers as defined in Section 401 hereof in an approximate amount of Twelve Thousand Dollars ($12,000) pursuant to the Buyer Promissory Note and Second Trust Deed (Attachment Nos. 8 and 9). The Agency Assistance has been funded from the Project Area No. 1 Low and Moderate Income Housing Fund. Accordingly, Developer acknowledges and agrees that the use of the Sites shall be subject to all of the income and affordability restrictions set forth in this Agreement, the Grant Deed (Attachment No. 3), and the Declaration of Covenants, Conditions and Restrictions (Attachment No. 10). B. [§202] Acquisition of the Site The Agency will acquire a fee simple marketable interest to the Site (the "Agency Acquisition"); provided, however, that the Agency's failure to acquire any or all of the Site shall not entitle Developer to damages, but shall only be a condition precedent to Developer's further performance of its obligations under this Agreement with respect to the portion of the Site which is not acquired by the Agency. The cost of the Agency to acquire each Site, including consideration payable to owners, relocation benefits or assistance, escrow charges, premiums for POBL:18856_211871 B2338.0 4 09/30/94 title insurance and other closing costs, appraisal fees, preliminary title reports, reasonable attorney fees, and other related charges shall be included in the Site Cost Calculation. C. [§203] Disposition of the Site Upon satisfaction of each and every "Conditions Precedent to the Agency Conveyance," as set forth below, the Agency shall convey to the Developer fee simple marketable title subject to the covenants as specified in Attachment No. 10 to the Site (the "Agency Conveyance") upon tender of the executed and recorded Developer Promissory Note and the executed Developer Deed of Trust (Attachment Nos. 4 and 5). The Developer Promissory Note in an amount equal to the Site Cost for each lot individually and shall bear no interest and shall be due and payable upon the sale of the corresponding lot pursuant to the Developer Conveyance Escrow to an Eligible Person or Family as defined in Section 401. D. 0204] Escrow The Agency agrees to open an escrow or escrows (the "Agency Conveyance Escrow(s)") with Dixie Escrow Co., or with another mutually agreeable escrow company (the "Escrow Agent"), by the time established therefor in the Schedule of Performance (Attachment No. 2). This Agreement constitutes the joint basic escrow instructions of the Agency and the Developer for the Agency Conveyance, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Agency Conveyance Escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. The Escrow Agent is hereby empowered to act under this Agreement, and the Escrow Agent, upon indicating within five (5) days after the opening of the Agency Conveyance Escrow its acceptance of the provisions of this Section 203, in writing, delivered to the Agency and the Developer, shall carry out its duties as Escrow Agent hereunder. Upon delivery of the Grant Deed(s) (Attachment No. 3) to the Escrow Agent by the Agency, the Escrow Agent shall record such deed when title can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall pay any applicable transfer tax. Any insurance policies covering the each of the lots of Site are not to be transferred. The Agency shall pay into the Agency Conveyance Escrow the following fees, charges and costs for each lot promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for closing the Agency Conveyance Escrow: 1. The Escrow fee; and 2. Cost of drawing the Grant Deed (Attachment No. 3); 3. Recording fees; 4. Notary fees; PUBL:18856_211871B2338.0 5 09/30/94 5. The title insurance policy; and 6. Any transfer tax and any state, county or city documentary stamps. The Agency shall timely and properly execute, acknowledge and deliver a deed in substantially the form of the "Grant Deed" (which is attached to this Agreement as Attachment No. 5 and is incorporated herein). The Escrow Agent is authorized to: 1. Pay and charge the Agency for any fees, charges and costs payable under this Section 204. Before such payments or charges are made, the Escrow Agent shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the Agency Conveyance Escrow. 2. Deliver the Grant Deed (Attachment No. 3) and other documents to the parties entitled thereto when the conditions of this Agency Conveyance Escrow have been fulfilled by the Agency and the Developer. 3. Record any instruments delivered through this Agency Conveyance Escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement. All funds received in this Agency Conveyance Escrow shall be deposited by the Escrow Agent, with other escrow funds of the Escrow Agent in an interest -earning general escrow account or accounts with any state or national bank doing business in the State of California. Such funds may be transferred to any other general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty (30) day month and a 360 day year. If this Agency Conveyance Escrow is not in condition to close on or before the time, for conveyance established in the Schedule of Performance (Attachment No. 2) of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or parties in accordance with Section 601 hereof. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents until instructed by a mutual agreement of the parties or by a court of competent jurisdiction. If no such demands are made, the Agency Conveyance Escrow shall be closed as soon as possible. The Escrow Agent shall not be obligated to return any such money, papers or documents except upon the written instructions of both the Agency and the Developer or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. mBL:18856211871 K338.0 6 09/30/94 Any amendment to these escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment, the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 601 of this Agreement for notices, demands and communications between the Agency and the Developer. The liability of the Escrow Agent in the capacity as escrow holder with respect to the Agency Conveyance is limited to performance of the obligations imposed upon it under this Section 204 and Sections 208 through to 211, inclusive, of this Agreement. E. [§205] Conveyance of Title and Delivery of Possession Subject to any extensions of time mutually agreed upon in writing between the Agency and the Developer, the Agency Conveyance(s) shall be completed on or prior to the date specified therefor in the Schedule of Performance (Attachment No. 2). Said Schedule of Performance (Attachment No. 2) is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency Executive Director. Possession shall be delivered to the Developer concurrently with the conveyance of title. The Developer shall accept title and possession on or before the date established in the Schedule of Performance (Attachment No. 2) for the Agency Conveyance(s). F. [§206] Form of Deed for the Conveyance(s) The Agency shall convey to the Developer title to the Site, excepting therefrom the mineral rights thereto, in the condition provided in Section 207 of this Agreement, by grant deed substantially in the form of the Grant Deed (Attachment No. 3). G. [§207] Condition of Title The Agency will convey to the Developer fee simple marketable title to the Site, excepting from the Agency Conveyance the mineral rights, and said title shall be subject to those encumbrances and limitations in effect as of the acquisition of title by the Agency, as well as the Redevelopment Plan, and the provisions contained in the Grant Deed (Attachments No. 3) and the Declaration of Conditions, Covenants and Restrictions (Attachment No. 10). It is the mutual intention of the parties that the condition of title shall be compatible with and not preclude development of the Improvements and the Developer shall review exceptions to title prior to and as a condition to close of the Agency Conveyance Escrow consistent with the foregoing. The parties shall act reasonably in evaluation of any exceptions to title and shall act diligently and promptly to conform the condition of title to that required for the Developer to proceed with development of the Improvements. Developer shall review preliminary title reports prior to execution of escrow instructions by Agency for each Site and notify Agency of any objection to title prior to execution of escrow instructions. The Developer shall not reasonably object to any exception to title which does not materially adversely affect its ability to proceed with this Agreement. PUBL: 18856211871B2338.0 7 09/30/94 The Agency shall reserve and except from the Agency Conveyance all interests in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Site lying more than 500 feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said site or other lands, but without, however, any right to use either the surface of the Site or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. H. [§208] Time for and Place of Delivery of Grant Deed Subject to any mutually agreed -upon extension of time, the Agency shall deposit the Grant Deed(s) (Attachment No. 3) with the Escrow Agent on or before the date established for the Agency Conveyance pursuant to the Schedule of Performance (Attachment No. 2). I. [§209] Recordation of Documents The Escrow Agent shall file the following documents for recordation among the land records in the Office of the County Recorder for Riverside County for each lot separately: Grant Deed(s) (Attachment No. 3), Developer Deed(s) of Trust (Attachment No. 2), and Declarations of Conditions, Covenants and Restrictions for each lot (Attachment No. 10), and shall deliver the Developer Promissory Notes for each lot to the Agency after delivery to the Developer of the title insurance policy insuring title in conformity with Section 205 of this Agreement. J. [§210] Title Insurance Concurrently with recordation of the Grant Deed(s) (Attachment No. 3) conveying title to each lot of the Site the Title Company shall provide and deliver to Developer a title insurance policy issued by the Title Company insuring that the title to the Site is vested in Developer in the condition required by Section 207 of this Agreement. The Title Company shall provide the Agency with a duplicate of a standard CLTA policy title insurance policy with an endorsement naming the Agency as an additional insured thereunder and the title insurance policy shall be in the amount of the Developer Promissory Note. The Agency shall bear the cost of such endorsement. All additional costs incurred for or related to such title insurance shall be borne solely by the Developer. The Developer may, at its option and at its cost, obtain coverage in excess of such amounts and may obtain any additional endorsements or an ALTA policy. K. [§211] Taxes and Assessments Ad valorem taxes and assessments, if any, on the lot(s) levied, assessed or imposed for any period commencing prior to the applicable conveyance of title or possession, shall be borne by the Agency, and any of such taxes and assessments imposed after the Agency Conveyance of title shall be borne by the Developer. All other taxes on the Site, whenever assessed, shall be borne by the Developer. Notwithstanding the above, Developer reserves the right to contest or challenge the validity of any such tax or assessment. MBL:18856 211871 M338.0 8 09/30/94 L. [§213] Condition of the Site To the best of the actual knowledge of the Agency, there is no subsurface zone hazardous material, waste, or contamination in, on, or under each Site conveyed by the Agency to the Developer pursuant to this Agreement, or any portion thereof, which would preclude or substantially impair the development of such Site consistently with this Agreement. Developer, including any and all of its successors in interest, and assigns, acknowledges and agrees it shall be responsible for any release, excavation, or movement of any hazardous material, waste, or contamination of the subsurface zone as may exist on the date of the Agency Conveyance with respect to the Site(s) and for any and all additional hazardous material, waste, or contamination or release of such materials with respect to the Site(s) occurring on or after the date of the Agency Conveyance. With respect to the Site and the development thereof, Developer shall comply with CERCLA (Comprehensive Environmental Response, Compensation and Liability Act of 1980) 42 U.S.C. §9601, gt sue., and with the California Environmental Quality Act (CEQA), California Health and Safety Code §§ 25100, et sew., 25300, et sew., 25280 et SeMc . Except as expressly set forth in the first paragraph of this Section 213, Developer, including any and all of its successors in interest, agrees to and shall indemnify, defend, and hold the Agency and the City and their officers, employees, and agents harmless from and against all expenses (including, without limitation, reasonable attorneys' fees and disbursements), losses, or liabilities, including any liability, loss or claim raised under CERCLA, suffered by Agency or City by reason of governmental action. or third party claims arising out of any claim or loss alleged to have arisen out of any hazardous material, waste, or contamination, exacerbation, movement, release, or additional contamination on the Site or any part thereof. The Developer assumes all responsibility for subsurface zone conditions and soils conditions on the Site, and for any rehabilitation, removal or other preparation of the Site necessary for the provision of the Improvements; and the Agency makes no representations or warranties concerning the Sites, their suitability for the use intended by the Developer, or the surface or subsurface conditions of the Sites; and if the soil conditions of the Sites are not in all respects entirely suitable for the use or uses to which the Sites will be put, then it is the sole responsibility and obligation of Developer to take such action as may be necessary to place the Sites in a condition entirely suitable for the development of the Sites. This is expressly agreed between the parties to this Agreement to be a material term of this Agreement. Developer shall conduct any inspections of the Site necessary to determine the suitability of the Site for the proposed development prior to the close of the Acquisition Escrow. Nothing in this Section 213 is intended to waive any claim or right the Developer may have against any person or entity, other than the Agency or the City, relating to the physical condition of the Sites. M. [§215] Conditions Precedent to the Agency Conveyances) Prior to and as conditions to the close of the Agency Conveyance Escrow, the Developer shall complete each of the following by the respective times established therefor in the Schedule of Performance (Attachment No. 2): PUBL:18856 211871BM38.0 9 09/30/94 I . the Developer shall not be in default of this Agreement; 2. the Developer provides to the Executive Director insurance certificates conforming to Section 308 of this Agreement; 3. the Developer shall have executed and deposited with escrow for delivery to the Agency the Developer Promissory Note for each lot (Attachment No. 4); 4. the Developer shall have executed and deposited with escrow for recordation and delivery to the Agency the Declaration of Conditions, Covenants and Restrictions concerning the use and maintenance of the Site for each lot (Attachment No. 10) and the Developer Deed of Trust for each lot (Attachment No. 5); and 5. the Developer shall have plans approved by the City. The foregoing items numbered 1 to 5, inclusive, together constitute the "Conditions Precedent to the Agency Conveyance." N. [§216] Construction Loan Financing The Agency shall provide construction loan financing at zero percent (0 %) interest rate to be distributed according to a schedule and based upon evidence of receipts for costs to be approved by the Executive Director pursuant to the Construction Promissory Note (Attachment No. 6). There shall be separate Construction Promissory Notes for each lot. In no event shall the Construction Promissory Note Amount exceed Eighty Five Thousand Dollars ($85,000) per lot. Each of the Construction Loan Note Amounts shall be due and payable upon the transfer of each of the lots to an Eligible Person or Family. O. [§217] Conveyances to Eligible Persons and Families At such time as the Developer conveys Sites to Eligible Persons and Families, it shall assure that the Conditions, Covenants and Restrictions (Attachment No. 10) remain of second seniority to the lien of any financing, and that the Second Deed of Trust (Attachment No. 9) is recorded in a second lien position, behind the lien securing purchase money financing. The conveyances of lots shall be accomplished by grant deed which sets forth the affordability and nondiscrimination provisions set forth in the Grant Deed (Attachment No. 3). III. [§300] DEVELOPMENT OF THE SITE A. [§301] Development of the Site 1. [§302] Scope of Development Each lot of the Site shall be developed as a detached, single-family housing unit as provided in the Scope of Development (Attachment No. 1). The development of the Site PUBL:18856_2 1 187 1 B2338.0 10 09/30/94 shall include both public improvements and private improvements on the Site and public improvements off -site required in the normal course of City review by the City associated with the development of the Site (collectively, the "Improvements"). Upon close of the Agency Conveyance Escrow, the Developer shall commence and complete construction of the Improvements for each individual lot of the Site by the respective times established therefor in the Schedule of Performance (Attachment No. 2). The Scope of Development (Attachment No. 1) shall include any plans and specifications submitted to the City and/or Agency for approval, and shall incorporate or show compliance with all mitigation measures. 2. [§303] Site Plan By the time set forth therefor in the Schedule of Performance (Attachment No. 2), the Developer shall prepare and submit to the City for its approval a Site Plan and related documents which conform to requirements of the City and which contain the overall plan for development of the Site in sufficient detail to enable the City to evaluate the proposal for conformity to the requirements of the La Quinta Municipal Code and this Agreement. The Site shall be developed as established in this Agreement and such documents, except as changes may be mutually agreed upon between the Developer and the Agency. Any such changes shall be within the limitations of the Scope of the Development (Attachment No. 1). 3. [§304] Construction Drawings and Related Documents By the times set forth therefor in the Schedule of Performance (Attachment No. 2), the Developer shall prepare and submit to the City in form suitable for plan check, construction drawings, landscape plans, and related documents for development of the Improvements. Any items so submitted and approved in writing by the City shall not be subject to subsequent disapproval. Any items disapproved shall be revised and resubmitted within fifteen (15) days of disapproval. The landscaping and finish grading plans shall be prepared by a professional landscape architect or registered civil engineer who may be the same firm as the Developer's architect or civil engineer. During the preparation of all drawings and plans, staff of the City and the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of drawings, plans and related documents by the City. The staff of City and the Agency and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency can receive prompt and speedy consideration. 4. [§305] Review and Approval of Plans. Drawings, and Related Documents The Agency and the City shall have the right of planning, including plan check, review of all plans and submissions, including any changes therein. PUBL:18856 211871 B2338.0 11 09/30/94 During each stage of the processing of plans for the Improvements, the Agency and the City shall have the right to require additional information and shall advise the Developer if any submittal of plans or drawings is not complete or not in accordance with City/Agency procedures. If the Agency or the City determines that such a submittal is not complete or not in accordance with procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance (Attachment No. 2). If the Developer desires to make any substantial changes in the construction plans after their approval by the Agency and the City, the Developer shall submit the proposed change to the Agency and the City for their approval. If the construction plans, as modified by the proposed change, conform to the requirements of this Section 305 and the Scope of Development (Attachment No. 1) the Agency and the City will approve the proposed change and notify the Developer in writing within 30 days after submission to the Agency and the City. 5. [§306] Cost of Development All costs, with the exception of the Agency Assistance as described in Section 201 of this Agreement, for planning, designing, and constructing the Improvements shall be borne exclusively by the Developer. The Developer shall also bear all costs related to discharging the duties of the Developer set forth in this Agreement. The Developer assumes the responsibility to construct, and shall let contracts for or cause to be constructed, all off -site public improvements developed pursuant to this Agreement, substantially in conformity with procedures used by the Agency when competitive bidding is deemed to be required. The Developer shall be responsible for all fees associated with development of the Improvements, including, but not limited to, school facilities fees and impact fees. 6. [§307] Construction Schedule The Developer shall commence and complete the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 2). 7. [§308] Indemnity Bodily Injury and Property Damage Insurance The Developer shall defend, assume all responsibility for and hold the Agency and the City, and their respective officers, agents and employees, harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of the Developer's activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. The Developer shall take out and maintain during the life of this Agreement a comprehensive liability policy in the amount of One Million Dollars ($1,000,000) combined single limit policy, including contractual liability, as shall protect the Developer, the City, and the Agency from claims for such damages. Coverage shall be primary and not contributing with any policy or coverage maintained by or obtained by the Agency, and an appropriate endorsement shall so state. The policy shall contain a waiver of subrogation. Insurance coverage furnished by the mBL:18856_211871 W338.0 12 09/30/94 Developer pursuant to this Section 308 shall conform to this Section 308 and shall pertain to all activities on the Site and adjacent public rights -of -way surrounding the Site and all work on off -site public improvements. Developer shall furnish or cause to be furnished to the Agency a certificate of insurance from the insurer evidencing compliance with this Section 308 and providing that the insurer shall not cancel or modify the policy without thirty (30) days' written notice to Agency. Developer shall give Agency prompt and timely notice of any claim made or suit instituted. Agency, City, and their officers, employees and agents, shall also be named as additional insured in any policies of Developer's contractors covering work under this Agreement, and such policies shall comply with this paragraph. Developer shall comply with all of the provisions of the Workers Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Divisions 4 and 5 of the California Labor Code, and all amendments thereto, and all similar State or Federal acts or laws applicable, and Developer shall hold Agency and City harmless from any claims arising thereunder. Developer shall furnish or cause to be furnished to the Agency a certificate of Workers Compensation insurance providing that the insurer shall not cancel or modify the policy without thirty (30) days' prior written notice to Agency. In the alternative, Developer may show proof of a certificate of consent to self -insure issued by the Director of Industrial Relations according to California Labor Code Section 3800. The Developer additionally agrees to and shall save the Agency and the City and their officers, employees and agents harmless from and assume all responsibility for any and all liability or responsibility for damage, costs, losses, or suit arising in any manner from the approval of this Agreement or the development and activities conducted pursuant to this Agreement. This obligation and indemnification shall constitute a covenant running with the land throughout the life of the Redevelopment Plan. 8. [§309] City and Other Governmental Agency Permits Before commencement of construction or development of any buildings, structures or other works of improvement upon the Sites or in connection with any off -site improvement, the Developer shall, at its own expense, secure or cause to be secured any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. It is understood that the Developer's obligation is to pay all necessary fees and to timely submit to the City final drawings with final corrections to obtain building permit; the Agency will, without obligation to incur liability or expense therefor, use its best efforts to expedite issuance of building permits and certificates of occupancy for construction that meet the requirements of the City Code. 9. [§310] Rights of Access For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have the right of access to the Site without charges or fees, at normal business hours during the period of this Agreement for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the Improvements, so long as they comply with all safety rules. Such PUBL:18856_211971 B2338.0 13 09/30/94 representatives of the Agency or of the City shall be those who are so identified in writing by the Executive Director of the Agency. The Agency shall hold the Developer harmless from any bodily injury or related damages arising out of the activities of the Agency and the City as referred to in this Section 310. 10. [§311] Local. State and Federal Laws The Developer shall perform under this Agreement and carry out its performance under this Agreement, including without limitation the construction of the Improvements, in conformity with all applicable federal and state laws and local ordinances, including all applicable federal and state labor standards, as to the Site, provided, however, Developer and its contractors, successors, assigns, transferees, and lessees are not waiving their rights to contest any such laws, rules or standards. 11. [§312] Anti -Discrimination Pursuant to Sections 33435 and 33050 of the California Community Redevelopment Law, the Developer for itself and its successors and assigns, agrees, that in the construction of Improvements on the Site or other performance under this Agreement, the Developer will not discriminate against any employee or applicant for employment because of sex, martial status, race, color, religion, ancestry, or national origin. 12. [§313] Taxes and Assessments After the Agency Conveyance the Developer shall pay prior to delinquency all real estate taxes and assessments on the Sites so long as the Developer retains any interest thereon. Prior to the Developer Conveyance, the Developer shall remove or have removed any levy or attachment made on any of the Sites or any part thereof, or assure the satisfaction thereof within a reasonable time but in any event prior to said sale or transfer. Notwithstanding the above, the Developer shall have the right to contest the validity or amounts of any tax, assessment, or encumbrance available to the Developer in respect thereto. B. [§314] Prohibition Against Transfer of the Sites, the Buildings or Structures Thereon and Assignment of Agreement Except as to the sale of any home to an owner -occupant in accordance with -this Agreement, the Developer shall not, except as may be expressly permitted by this Agreement, without prior approval of the Agency, make any total or partial sale, transfer, conveyance of, or enter into any assignment or ground lease of or refinance the whole or any part of the Site or of the buildings or structures on the Site. This prohibition shall not be deemed to prevent the granting of temporary or permanent easements or permits to facilitate the development of the Site or to prohibit or restrict the sale of "Restricted Units" to "Eligible Persons or Families" (as defined in Section 401) in conformity with Section 401 of this Agreement. PURL: 18856 211871 B2338.0 14 09/30/94 C. [§321] Right of the Agency to Satisfy Other Liens on the Site(s) After Title Passes After the Agency Conveyance and prior to the completion of construction, and after the Developer has had written notice and has failed after a reasonable time, but in any event not less than forty-five (45) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the Site which are not otherwise permitted under this Agreement, the Agency shall have the right but no obligation to satisfy any such liens or encumbrances. Notwithstanding the above, the Developer shall have the right to contest the validity or amounts of any tax, assessment, or encumbrance available to the Developer in respect thereto. D. [§322] Certificate of Completion Promptly after the completion of all of the Improvements and their sale to Eligible Persons or Families (as defined in Section 401 hereof) in conformity with this Agreement (as determined by the Executive Director of the Agency), upon the written request of the Developer relating only to those Sites as to which construction has been completed in accordance with this Agreement, the Agency shall furnish the Developer with the Certificate of Completion (in the form attached hereto as Attachment No. 11) which evidences and determines the satisfactory completion of the construction, development and sale to an Eligible Person or Family, as to any single-family home, pursuant to the provisions and covenants specified in this Agreement, the Redevelopment Plan and the California Community Redevelopment Law. The issuance and recordation of a Certificate of Completion (Attachment No. 11) with respect to the Improvements shall not supersede, cancel, amend or limit the continued effectiveness of any obligations relating to the maintenance, or uses, or payment of monies, or any other obligations, except for the obligation to complete construction of the Improvements as of the time of the issuance of such applicable certificate. If the Agency refuses or fails to furnish a Certificate of Completion after written request from the Developer, the Agency shall, within forty-five (45) days of the written request, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish such Certificate of Completion. Upon issuance of a Certificate of Completion (Attachment No. 11) for the Improvements, construction of such Improvements as to any single-family home shall be deemed to have been completed in conformity with this Agreement. The Certificate of Completion (Attachment No. 11) is not a notice of completion as referred to in Section 3093 of the California Civil Code. The issuance of a Certificate of Completion shall not affect the continued effectiveness of the Second Deed of Trust (Attachment No. 9) and the Declaration of Conditions, Covenants and Restrictions (Attachment No. 10) recorded pursuant to this Agreement. PUBL:18856_211871 B2338.0 15 09/30/94 IV. [§4001 USE OF THE SITE A. [§4011 Affordable Housing 1. Number of Units. Developer shall develop two (2) detached, single-family homes (the "Restricted Units") within the Project Area and shall develop all on -site and off -site public improvements connected therewith, all as described and set forth in the Scope of Development (Attachment No. 1). Developer shall restrict each of the units for sale to a Moderate Income Household pursuant to the applicable income and affordability provisions contained herein. The Developer further covenants and agrees that the above -referenced occupancy, ownership and affordability requirements shall bind and be enforceable against the Site for the period of thirty (30) years commencing with the conveyance of each respective parcel to the Developer. 2. Definitions. (a) "Affordable Housing Cost" shall be that purchase price which would result in maximum monthly housing payments for a thirty (30) year mortgage for ninety percent (90%) of the purchase price under currently prevailing mortgage loan rates or the interest rate of any below -market mortgage program for which such purchaser has obtained a first trust deed loan, for the moderate income group calculated pursuant to Health and Safety Code Section 50052.5, which sets forth the following formula: Moderate Income Households - not less than twenty-eight percent (28 %) of the gross income of the household, nor more than the product of thirty-five percent (35%) times the greater of one hundred ten percent (110%) of area median income adjusted for family size appropriate for the Affordable Unit, or the gross income of the household for households earning greater than one hundred ten percent (110%) and not more than one hundred twenty percent (120%) of the area median income adjusted for family size. (b) "Moderate Income Household" shall mean a household earning not greater than one hundred twenty percent (120%) of Riverside County median income, as ' determined by the United States Department of Housing and Urban Development from time to time, as set forth in Health and Safety Code Section 50093. (c) "Eligible Person or Family" shall mean any person or family who meets the income qualifications for Moderate Income Households. (d) "Owner" shall mean Developer and any successor in interest of Developer to any lot of the Site except where a provision of this Agreement expressly excludes Developer from the definition of owner. (e) "Proposed Transferee" shall mean a person or family determined to be an Eligible Person or Family to whom the Developer or any successor Owner desires and proposes to Transfer a Restricted Unit. rvBt:18856_2 1 187 1 B2338.0 16 09/30/94 (f) "Purchase Housing Cost" of an Eligible Person or Family purchasing a Restricted Unit shall include all of the following associated with that Restricted Unit, estimated or known as of the date of the proposed sale of the Restricted Unit: (i) Principal and interest on a mortgage loan including any rehabilitation loans, and any loan insurance fees associated therewith. (ii) Property taxes and assessments. (iii) Fire and Casualty insurance covering replacement value of property improvements. (iv) Any homeowner association fees. Monthly housing cost of a purchaser shall be an average of estimated costs for the next twelve (12) months. (g) "Restricted Unit" shall mean a dwelling unit, which shall be a single-family residence, subject to the restrictions of this Agreement (including, without limitation, the Declaration of Conditions, Covenants and Restrictions [Attachment No. 8]). (h) "Sales Price" shall mean all sums paid by a purchaser to a seller for, or in conjunction with, the acquisition of a Restricted Unit, including the purchase price designated in any purchase agreement, consideration for personal property and all other costs and fees paid by the purchaser to or for the benefit of the seller. (i) "Transfer" shall mean any sale, assignment, conveyance, lease or transfer, voluntary or involuntary, of any interest in a Restricted Unit. Without limiting the generality of the foregoing, Transfer shall include (i) a transfer by devise, inheritance or intestacy to a party who does not meet the definition of Eligible Person or Family; (ii) a life estate;.(iii) creation of a joint tenancy interest; (iv) a gift of all or any portion of a Restricted Unit; or (v) any voluntary conveyance of a Restricted Unit. Transfer shall not include transfer to a spouse in a dissolution proceeding; however any subsequent Transfer shall be subject to this restriction. 0) "Transferee" shall mean any natural person or entity who obtains ownership or possessory rights in a Restricted Unit pursuant to a Transfer. 3. Sales of Restricted Units. Developer agrees that Developer shall sell each Restricted Unit to an Eligible Person or Family at an Affordable Housing Cost (the "Developer Conveyance") and that during the Affordability Period each subsequent resale of a Restricted Unit by the then -Owner thereof shall be to an Eligible Person or Family at an Affordable Housing Cost. Developer agrees that the Conditions, Covenants and Restrictions (Attachment No. 10) giving effect to the foregoing restrictions shall be recorded against each lot of the Site concurrently with the Disposition Conveyance. Developer agrees to commence to market each Restricted Unit not later than the completion of construction of each Restricted Unit; each Restricted Unit shall be sold to an Eligible Person or Family prior to issuance of a Certificate of Completion as to any such Restricted Unit for purposes of Section 322 hereof. PUBL:18856_211871 B2338.0 17 09/30/94 For purposes of satisfying the requirement that all of the Restricted Units shall be occupied by Eligible Persons or Families: (a) an individual or family who qualifies as an Eligible Person or Family at the time he or she first takes title to a Restricted Unit will be deemed an Eligible Person or Family as long as he or she continues to hold title to such Restricted Unit even though the Eligible Person or Family subsequently ceases to meet the income or other requirements of an Eligible Person or Family, and (b) when an Owner releases title to a Restricted Unit, such unit will be considered as occupied by an Eligible Person or Family if it is held vacant and available for such occupancy until title is transferred to another Eligible Person or Family, at which time the status of the new Owner as an Eligible Person or Family is to be determined: 4. Restrictions on Transfer by Sale of the Restricted Property or Any Restricted Unit. (a) For the duration of the Affordability Period Developer, for itself and any subsequent Owner, hereby subjects the Site to certain restrictions and limits the price at which Developer or any other Owner may sell and/or resell the Site and the persons to whom Developer or any other Owner may sell the Site. (b) DEVELOPER AND ANY OTHER OWNER UNDERSTANDS THAT THE DETERMINATION OF THE SALES PRICE CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED AND THAT THE SALE PRICE PERMITTED HEREUNDER MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION. DEVELOPER AND ANY OTHER OWNER FURTHER ACKNOWLEDGE THAT, AT ALL TIMES IN SETTING THE SALES PRICE, THE PRIMARY OBJECTIVE OF THE AGENCY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE PERSONS OR FAMILIES AT AFFORDABLE HOUSING COST. THE SALES PRICE MAY BE LESS THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO RESTRICTIONS. Develq{11er's Initials (c) Transfer of a Restricted Unit. Developer and any successor Owner may transfer a Restricted Unit only in strict accordance with the provisions of this Agreement. Specifically, during the Affordability Period, Owner may Transfer a Restricted Unit (i) only to an Eligible Person or Family and (ii)'only if the Purchase Housing Cost does not exceed Affordable Housing Cost for the Eligible Person or Family; and (iii) only if the Transfer has previously been approved in writing by the Agency. In order to comply with this Subsection 4(c), Developer and any successor Owner must calculate the Affordable Housing Cost for the Proposed Transferee of the Restricted Unit in accordance with the definition set forth in Subsection 2(a) of this Section 401. After calculating the Affordable Housing Cost for the Proposed Transferee, the Owner must ensure that the sum of the Sales Price and all costs listed in the definition of Purchase Housing Cost set forth in Subsection 2 of this Section 401 does not exceed that Affordable Housing Cost. PURL:18956_211871 B2338.0 18 09/30/94 The calculation of the Sales Price under this Subsection 4(c) is illustrated by example in Attachment No. 12 attached hereto. (d) Notwithstanding anything to the contrary in this Section 401, at close of the Developer Conveyance Escrow transferring the Restricted Unit from the Developer to the Proposed Transferee (the "Initial Owner"), the Initial Owner shall execute a Buyer's Promissory Note substantially in the form of Attachment No. 8, which is attached hereto and incorporated herein by reference, which Promissory Note shall be secured by a Second Deed of Trust substantially in the form of Attachment No. 9, which is attached hereto and incorporated herein by reference. Said Second Deed of Trust shall be subordinate to any mortgage obtained by the Initial Owner for the purpose of securing funds to be applied to the Sales Price of the Restricted Unit so long as the loan -to -value ratio, determined with respect to both such mortgage and the Second Deed of Trust, does not exceed ninety percent (90%). The Buyer's Promissory Note shall be non -interest bearing. The principal amount shall be equal to the amount of the Agency Assistance necessary for the Individual or Family to qualify for the Lender's loan and ensure the affordability requirements are met but shall in no event exceed Twelve Thousand Dollars ($12,000) applicable to each Restricted Unit (the "Note Amount"). The Note Amount shall be due and payable in full upon the earlier of thirty (30) years from the close of the Developer Conveyance Escrow; or (ii) the Transfer of the Restricted Unit by the Initial Owner. However, should the Initial Owner transfer the Restricted Unit to an Eligible Person, Family at Affordable Housing Cost, the Transferee shall assume the Promissory Note (Attachment No. 8) and Agency shall extend the due date of the Note Amount until the next Transfer of the Restricted Unit. The foregoing provisions will apply to every successive Transfer during the Affordability Period. 5. Process to Complete Transfer by Sale of Restricted Units. Upon the Transfer by sale of a Restricted Unit, the following procedures shall apply: (a) Notice to City: Owner shall send to the Agency in care of the La Quinta Housing Department (or its successor), at P.O. Box 1504, La Quinta, California 92253, the form attached hereto as Attachment No. 13 fully completed and executed by the Owner and the Proposed Transferee (the "Approval Request"). (b) Qualifications of Proposed Transferee. No Transfer shall occur unless and until determination is made based on the Certificate in the form of Attachment No. 13 attached hereto ("Certificate") and attachments thereto, that the Proposed Transferee (i) intends to occupy the Restricted Unit as the Proposed Transferee's principal residence and (ii) is an Eligible Person or Family. Each Proposed Transferee shall submit a Certificate to the Developer certifying its intent with regard to the occupancy of the Restricted Unit and as to the truth and accuracy of all information supplied as to the Gross Income (calculated as set forth in 25 Cal. Code of Regs., Section 6914) of the Proposed Transferee ("Proposed Transferee's Certificate"). Developer or subsequent owner shall certify pursuant to Attachment No. 13 hereof the information provided on the Proposed Transferee's Certificate pursuant to direction on that Certificate. Developer or subsequent owner shall be entitled to rely on the information on the Proposed Transferee's Certificate and attachments thereto in making the determination required by this subsection 5(b) unless the Developer or subsequent owner has knowledge of, or a reasonable basis for belief as to the, inaccuracy or falsehood of the Proposed Transferee's Certificate. PURL:18856_211871 B2338.0 19 09/30/94 (c) The Sales Price for the Restricted Unit shall not exceed the maximum price at which the Purchase Housing Cost to be paid by the Proposed Transferee would not exceed Affordable Housing Cost. The calculation of the Sales Price under this subsection is illustrated by example in Attachment No. 13 attached hereto. However, in determining Affordable Housing Cost, the family size of the Proposed Transferee shall be deemed to be persons in the case of a 1 bedroom, 3 persons for a 2 bedroom, 4 persons for a 3 bedroom, or 5 persons for a 4 bedroom Restricted Unit. If the actual family size of the Proposed Transferee is larger, then the actual family size shall be used. (d) Certificates from Parties. With respect to each sale of a Restricted Unit, Developer or subsequent owner shall submit to the Agency, not later than four (4) weeks prior to close of escrow on the sale of a Restricted Unit, a certificate that (i) the Developer or subsequent owner has made the affirmative determinations required by Section 4(a) above and (ii) the Sales Price conforms with Section 4(b) above. The Developer or subsequent owner shall concurrently submit to the Agency the Proposed Transferee's Certificate and all attachments thereto and all other documents or material with regard to information required by Sections 4(a) and/or (b) above, whether or not relied on by the Developer. Further, the Developer or subsequent owner and Proposed Transferee each shall certify in writing, in a form acceptable to the Agency, that the Transfer shall be closed in accordance with, and only with, the terms of the sales contract and other documents submitted to and approved by the Agency and that all consideration delivered by the Proposed Transferee to Developer or subsequent owner has been fully disclosed to the Agency. The written certificate shall also include a provision that, in the event a Transfer is made in violation of the terms of this Agreement or false or misleading statements are made in any documents or certificate submitted to the Agency for its approval of the Transfer, the Agency shall have the right to file an action at law or in equity to seek termination and/or rescission of the sales contract and/or declare the sale void, notwithstanding the fact that the Transfer may have closed and become final as between Developer or subsequent owner and its Transferee. In the event Developer for the initial transfer or subsequent owner for each following transfer fails to comply with Sections 4(a) or 4(b) above, any costs, liabilities or obligations incurred by the Developer or subsequent owner and its Transferee for the return of any monies paid or received or for any costs and legal expenses, shall be borne jointly and severally by the Developer and its transferee and such parties shall hold the City and Agency harmless and reimburse their expenses, legal fees and costs for any action the City and/or Agency take in enforcing the terms of this Section 401. (e) Execution of Promissory Note and Second Deed of Trust. Notwithstanding anything to the contrary in this Agreement, at close of Escrow of the sale of the Housing Unit from the Developer to the Buyer, the Buyer shall execute a Buyer Promissory Note (Attachment No. 8) which shall be secured by a Second Deed of Trust (Attachment No. 9). Said Second Deed of Trust shall be subordinate to any mortgage(s) obtained by the Owner for the purpose of securing funds to be applied to the Sales Price of the Housing Unit. The Buyer Promissory Note shall be non -interest bearing. The principal amount of the Promissory Note shall be an amount equal to the amount actually given as cash plus an Agency Equity Share Amount which becomes applicable only in the event that the Buyer is unable after good faith efforts for 4 months to find an Eligible Person or Family to transfer the home at Affordable Housing Cost. In the event that the Buyer has provided the Agency with evidence of their good faith efforts then Agency may approve the sale to a nonqualified buyer and release the covenants by receiving in addition to the cash amount originally provided the additional Agency Equity PUBL:18856_211871B2338.0 20 09/30/94 Amount equal to fifty (50) percent of the difference between the Buyer's original purchase price and the sales price of nonrestricted unit. The Note Amount shall not be payable in installments during the term of the Note; rather, the Note Amount shall be payable solely upon Sale or Transfer or may be assumed by the Transferee in accordance with the provisions set forth herein. When the initial Owner makes a Sale or Transfer of the Housing Unit to an Eligible Person or Family at Affordable Housing Cost, then the Buyer's Promissory Note may be assigned to the new Buyer. So long as the Transferee purchasing the Housing Unit from the Owner is an Eligible Person or Family and the Sale of the Housing Unit is made at a price which is not in excess of Affordable Housing Cost, the Transferee shall assume the obligations of the Owner under the Promissory Note and Second Deed of Trust to repay the Agency Equity pursuant to the Promissory Note by execution of an assumption agreement in the form set forth as Attachment No. 16 of this Agreement, together with other written documentation satisfactory to the Agency, and Agency shall extend the due date of the Agency Equity pursuant to the Note Amount until the next Transfer of the Housing Unit by said Transferee. At such next Transfer, the Agency will again extend the due date of the Agency Equity pursuant to the Note Amount if the Sale or Transfer complies with the requirements of this Section. So long as each Transferee from the Owner and each subsequent Owner: (1) is an Eligible Person or Family, (2) acquires the Housing Unit at an Affordable Housing Cost, and (3) assumes the obligations of the predecessor Owner as aforesaid; then the Agency agrees to extend the due date of the Agency Equity pursuant to the Note Amount and the transferring Owner shall not be required to pay the Agency Equity portion of the Note Amount upon transfer of the Housing Unit. The Agency Equity payment requirement is intended as a penalty against the Owner, to capture a portion of the equity in the Restricted Property for the benefit of the Agency/Holder, in the event that the Owner makes a sale of the Restricted Property to a Buyer that is not an Eligible Person or Family. This equity recapture requirement is intended to be a cumulative remedy, together with all other remedies available to the Agency/Holder to compensate for the removal of the affordable housing covenants of the Grant Deed and this Agreement on the Housing Unit, to compensate the Agency for the administrative costs of operating the housing program of the Agency and to provide funds to the Agency to further assist low and moderate income persons in the provision of housing. In the event the equity recapture provisions of the Promissory Note are found by a court or administrative agency of competent jurisdiction to be in contravention of law or administrative regulation, the Applicable Percentage shall be reduced to the maximum percentage allowable by applicable law or administrative regulation, or may be otherwise modified by judicial decree or order so as to comply with applicable law. (f) Written Consent of Agency Required Before Transfer. During the Affordability Period the Restricted Property or the Restricted Unit, as the case may be, and any interest therein, shall not be conveyed by any Transfer except with the express written consent of the Agency, which consent shall be given only if the Transfer is consistent with the Agency's goal of creating, preserving, maintaining and protecting housing in the City of La Quinta for Eligible Persons and Families and shall be in accordance with the provisions of this subsection 5. This provision shall not prohibit the encumbering of title for the sole purpose of securing financing of the purchase price of the Restricted Unit. KML:18856_211871 M338.0 21 09/30/94 (g) Delivery of Documents. Upon the close of the proposed Transfer, the Owner and Transferee, as applicable, shall provide the Agency with a certified copy of the recorded Assumption Agreement, a copy of the final sales contract, settlement statement, escrow instructions, all certificates required by this subsection S and any other documents which the Agency may request. 6. Covenants of Owner. The Owner of each Restricted Unit by acceptance of a deed to the Restricted Unit covenants and agrees that, at all times during the Affordability Period, its Restricted Unit will be continuously occupied by Owner as its principal residence, and shall not be rented, subleased, or subject to any other business arrangement, whereby consideration shall be paid by any occupant of a Restricted Unit to the Owner of the Restricted Unit; provided, if the Restricted Unit is occupied by an Eligible Person or Family, the family members whose income was considered in determining the eligibility of that family may make monetary contributions toward the Purchase Housing Costs of the Restricted Unit. Owner agrees that it shall not record or cause the recordation of any deed of trust (a "Further Encumbrance") securing a note having an original principal sum which, when added to the sum of the principal amount(s) of any notes secured by any deeds of trust against the Restricted Property as of the date of recordation of the Further Encumbrance, exceeds the fair market value of the Restricted Property. B. [§4021 Uses In Accordance with Redevelopment Plan: Nondiscrimination The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Sites or any part thereof that the Developer and such successors and assignees, shall devote the Sites to the uses specified in the Redevelopment Plan, the Grant Deed (Attachment No. 3), the Declaration of Conditions, Covenants and Restrictions (Attachment No. 10) and this Agreement for the periods of time specified therein. The foregoing covenants shall run with the land. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Sites, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Sites. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the property on the basis of race, color, creed, religion, sex, marital status, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 1. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein PUBL:18856_211871 M338.0 22 09/30/94 conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 2. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." 3. In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." The covenants established in this Agreement and the deeds of conveyance for the Sites shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City and any successor in interest to the Sites, together with any property acquired by the Developer pursuant to this Agreement, or any part thereof. The covenants against racial discrimination shall remain in effect in perpetuity. C. [§403] Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. The Agreement and the covenants shall run in favor of the Agency, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Sites or in the Project Area. The Agency shall have the right, if this Agreement or covenants 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 or any other beneficiaries of this Agreement and covenants may be entitled. PUBL:18856 211871 M38.0 23 09/30/94 D. [§4041 Maintenance of the Sites The Developer shall maintain the improvements on the Site in conformity with the La Quinta Municipal Code and the requirements of the Declaration of Conditions, Covenants and Restrictions (Attachment No. 8), and shall keep the Sites free from any accumulation of debris or waste materials. The Developer shall also maintain the landscaping required to be planted under the Scope of Development (Attachment No. 3) in a healthy and attractive condition. If, at any time, Developer fails to maintain the Site or any portion thereof, and said condition is not corrected as soon as reasonably possible after written notice from the Agency, either the Agency or the City may perform the necessary maintenance and Developer shall pay such costs as are reasonably incurred for such maintenance. Upon close of each Developer Conveyance, the Developer's obligations under this Section 404 with respect to such Site shall be assumed by the Transferee of such Site. This covenant shall run with the land and shall remain in effect for the term of the Redevelopment Plan. V. [§5001 DEFAULTS AND REMEDIES A.' [§501] Defaults -- General Subject to the extensions of time set forth in Section 603, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default shall give written notice of default to the other party, specifying the default complained of and the actions required to correct such default. Except as otherwise expressly provided in Sections 508 and 509 of this Agreement, the claimant shall not institute proceedings against the other party if the other party within thirty (30) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy as soon as reasonably practicable after receipt of such notice. B. [§5021 Legal Actions 1. [§5031 Institution of Legal Actions In addition to any other rights or remedies and subject to the restrictions in Section 501, either party may institute legal action to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any default, to recover damages for any default, or to obtain any other legal or equitable remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California. PUBL:18856 211871B2338.0 24 09/30/94 2. [§504] Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [§505] Ac=tance of Service of Process In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon any officer or director of the Developer and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. C. [§506] 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 such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. D. [§507] Inaction Not a Waiver of Default Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either 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. E. [§508] Remedies and Rights of Termination Prior to Conveyances 1. [§509] Damages. If either party defaults with regard to any of the provisions of this Agreement, the non -defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured or commenced to be cured by the defaulting party within forty-five (45) days after service of the notice of default (or within such other period as is set forth herein), the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§510] Specific Performance If either party defaults under any of the provisions of this Agreement, the non -defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured and/or commenced to be cured by the defaulting party within forty-five (45) days of service of the notice of default, or such other time limit as may be set forth herein with PUBL:18856_2 1 187 1 B2338.0 25 09/30/94 respect to such default, the non -defaulting party at its option may thereafter (but not before) commence an action for specific performance of terms of this Agreement. 3. [§511] Right of Termination by the Developer Prior to the Conveyance In the event that following the Agency Acquisition the Agency does not tender conveyance of the Site(s), in the manner and condition, and by the date established in this Agreement and the Schedule of Performance (Attachment No. 4) for the Agency Conveyance, and any such failure shall not be cured within thirty (30) days after written demand by the Developer then, at the option of the Developer, upon written notice thereof to the Agency, all provisions of this Agreement shall terminate and be of no further force and effect; thereafter, neither the Agency nor the Developer shall have any further rights against or liability to the other with respect to this Agreement. Notwithstanding the above, Developer would be entitled to the return of any Acquisition Deposit for a site not transferred pursuant to Section 202 herein. 4. [§512] Termination by the Agency Prior to the Conveyance In the event that prior to the Agency Conveyance: (a) The Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site(s) in violation of this Agreement; or (b) There is a change in the ownership of the Developer contrary to the provisions of Section 107(a) hereof; or (c) The Developer does not submit certificates of insurance, construction plans, drawings and related documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement therefor, and such default or failure shall not be cured or commenced to be cured within forty-five (45) days after the date of written demand therefor by the Agency; or (d) The Developer fails to satisfy the Conditions Precedent to the Conveyance by the time established therefor in the Schedule of Performance (Attachment No. 4); or (e) The Developer is otherwise in default under this Agreement and such failure is not cured or commenced to be cured within thirty (30) days of demand therefor by the Agency; then, at the option of the Agency, upon such written notice thereof to the Developer as may be set forth above, this Agreement shall be terminated, and thereafter neither party shall have any further rights or liability against the other under this Agreement. PUBL:18856 2 1 187 1 B2338.0 26 09/30/94 F. [§513] Remedies of the Parties for Default After the Conveyance [§514] Termination and Damages After the Agency Acquisition, if the Developer or the Agency defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured or commenced to be cured (and diligent efforts toward curing the default) by the defaulting party within thirty (30) days after service of the notice of default, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§515] Action for Specific Performance If either the Developer or the Agency defaults under any of the provisions of this Agreement the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured and there has been diligent effort toward curing the default by the defaulting party within thirty (30) days after service of the notice of default, the nondefaulting party at its option may institute an action for specific performance of the terms of this Agreement. G. [§516] Reentry and Revesting of Title in the Agency After the Conveyances During the period after the Agency Conveyance but prior to the Developer Conveyance, the Agency has the additional right, at its option, to reenter and take possession of the Site(s) so conveyed, with all Improvements thereon, and terminate and revest in the Agency the estate conveyed to the Developer, if the Developer (or its successors in interest) shall: 1. Fail to start the construction of the Improvements as required by this Agreement for a period of forty-five (45) days after written notice thereof from the Agency; or 2. Abandon or substantially suspend construction of the Improvements required by this Agreement for a period of forty-five (45) days after written notice thereof from the Agency; or 3. Transfer or suffer any involuntary transfer of the Site(s), or any part thereof, in violation of this Agreement. 4. Fails to transfer the Site(s) pursuant to the terms of this Agreement within two (2) years of the execution of this Agreement by the Agency. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of trust permitted by this Agreement; or 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deed of trust. PUBL:18856 2 1 187 1 B2338.0 27 09/30/94 The Grant Deed (Attachment No. 3) shall contain appropriate reference and provision to give effect to the Agency's right as set forth in this Section 516, under the specified circumstances to reenter and take possession of the Site, with all Improvements thereon, and to terminate and revest in the Agency the estates conveyed to the Developer. Upon the revesting in the Agency of title to the applicable Site(s) as provided in this Section 516, the Agency may, but is not required, to use its best efforts to resell the Site(s) as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the state redevelopment law and of the Redevelopment Plan, as it may be amended, 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 or who will assume the ownership, management, and operation of the Site(s) all in accordance with the uses specified herein and specified for the Site(s) or part thereof in the Redevelopment Plan. Upon such resale of the Site(s), the proceeds thereof shall be applied: 1. 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, any expenditures by the Agency or the City in connection with the recapture, management and resale of the applicable Site or part thereof (but less any income derived by the Agency from the applicable Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to such Site or part thereof which the Developer has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or charges as would have been payable if such area were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time of revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion or operation and management of the Improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Agency, the Developer and its successor or transferee; and 2. in the event additional proceeds are thereafter available, then; Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of. -(a) the Purchase Price paid to the Agency by the Developer for the Site; and (b) the costs incurred by the Developer for the development of the Site, and for the Improvements existing on the Site at the time of the reentry and repossession, less, (c) any gains or income withdrawn or made by the Developer from the Site or the Improvements thereon. Any balance remaining after such reimbursements shall be retained by the Agency as its sole property. PUBL:18856_211871B2338.0 28 09/30/94 The rights established in this Section 516 are to be interpreted in light of the fact that the Agency will convey the Site to the Developer for development of housing available at an affordable housing cost, to persons and families of low -to moderate -income, and not for speculation in undeveloped land. VI. [§600] GENERAL PROVISIONS A. [§601] Notices._ Demands and Communications Between the Parties Written notices, demands and communications between the Agency and the Developer shall be sufficiently given if delivered by hand or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer at the addresses specified in Sections 105 and 106, respectively. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 601. Any written notice, demand or communication shall be deemed received immediately if delivered by hand and shall be deemed received on the ten (loth) day from the date it is postmarked if delivered by registered or certified mail. B. [§602] Conflicts of Interest No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. No member, official or employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency, or for any amount which may become due to the Developer or successor or on any obligations under the terms of this Agreement. C. [§603] Enforced Delay: Extension of Times of Performance In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; acts or failures to act of the City of La Quints or any other public or governmental agency or entity (other than the acts or failures to act of the Agency which shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the PUBL:18856 2 1 187 1 B2338.0 29 09/30/94 commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency and Developer. Notwithstanding the foregoing portion of this Section 603, the Developer is not entitled pursuant to this Section 603 to an extension of time to perform because of past, present, or future difficulty in obtaining suitable construction financing for the development of the Site or because of the physical condition or suitability of the Site for the purposes of this Agreement. D. [§604] Non -Liability of Officials and Employees of the Agency and the Developer No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or the City or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement. No officer, director or employee of the Developer shall be personally liable to the Agency or the City, or any successor in interest, in the event or breach by the Developer. E. [§605] Entire Agreement, Waivers This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through 31 and Attachment Nos. 1 through 16, which constitutes the entire understanding and agreement of the parties. Each of the foregoing Attachments are incorporated herein by reference. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency and the Developer, and all amendments hereto must be in writing by the appropriate authorities of the Agency and the Developer. In any circumstance where under this Agreement either party is required to approve or disapprove any matter, approval shall not be unreasonably withheld. VII. [§700] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency on or before 11-1 , 1994or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Agency. PUBLA 8856 211871 B2338.0 30 09/30/94 IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement on the respective dates set forth below. I qo�— MM40/Z �Ij i APPROVED AS TO FORM: LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic ByOA Chairman STRADLING, YOCCA, CARLSON & RAUTH By: Agency Counsel Dated: BUILDING HORIZONS, a California nonprofit public benefit corporation By: Its: PURL: 18856211871B2338.0 31 09/13/94 ATTACBAMNT NO. 1 SCOPE OF DEVELOPMENT I. GENERAL DESCRIPTION The Site consists of two single family lots (legally described as Lot S; Block 209 and Lot 9, Block 209) located on the west side of Eisenhower Drive approximately 150 feet north of Avenida Monterey. The lots are currently vacant. II. DEVELOPMENT -Developer shall cause the construction and installation of a single family home on each lot of the Site. The homes shall be approximately 1,400 square feet in size. The homes shall be developed in accordance with three bedroom floor plans and site elevations which have been or which shall have been approved by the City and the Agency. Unit amenities include front landscaped/irrigated yards; interior laundries with sink and cabinets; kitchens that feature tile countertops, dishwashers, built-in ranges, oak cabinetry, and nooks/pantries; tile roofs; and concrete block perimeter fencing. The Developer shall complete all of the improvements set forth in this Scope of Development (Attachment No. 1) to be constructed on each lot. All of the improvements to be provided by the Developer on the Site, including the Off -Site Improvements defined and described in part IV of this Scope of Development, constitute the "Improvements." The Developer shall commence and complete the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 2). III. DEVELOPMENT STANDARDS The following development standards shall apply to the Developer Improvements: A. Building Setbacks. Minimum building setbacks for buildings and parking areas shall be as required by the Redevelopment Plan and approved by the Agency, and shall conform to the La Quinta City Code (the "City Code"). B. Building Coverage. The amount of land within the Site covered by buildings shall be as required by the Redevelopment Plan and local zoning. C. Building Height. Buildings shall not exceed the height as may be limited by the Redevelopment Plan and local zoning. D. Landscaping. The Developer shall provide and, pending the sale of the Site, maintain landscaping on the Sites. PUBL:18874_11187182338.0 1_1 09/13/94 Landscaping shall be subject to approval by the City's Planning Department prior to.planting. E. Utilities. Sewer drainage and utility lines, conduits or systems shall not be constructed or maintained above the ground level of the Site. Storm drainage for all hard surfaced areas shall be drained or may be sheet flowed to storm sewers. All non -polluted waste water, such as waste air conditioning water, shall be drained to the storm or sanitary drainage systems as permitted by local codes. F. Building Materials. All exterior walls shall be painted or covered by the Developer with color(s) and materials subject to approval by the City's Community Development Department. In satisfaction of this requirement, the Developer shall submit a color and materials board for approval by the Agency. G. Building Design. Buildings shall be constructed such that the Developer Improvements -shall conform to the City Code, and shall be effectively and aesthetically designed. IV. PUBLIC IMPROVEMENTS AND UTILITIES The Developer, at its own cost and expense, with the exception of the Agency Assistance as provided in Section 201 of the Agreement, shall provide or cause to be provided the public improvements as required by the City pursuant to the usual City building permit requirements for off -site improvements to residential development within the time set forth for the completion of the Developer Improvements in the Schedule of Performance (Attachment No. 4). Those of the improvements required to be provided pursuant to this part IV of the Scope of Development (Attachment No. 4) constitute the "Off -Site Improvements." V. DEMOLITION AND SOILS In accordance with Section 211 of the Agreement, the Developer shall at its cost take all actions necessary to render the Site entirely suitable for such development, including any demolition and soils work. PUBL:18874_111871 M38.0 1 _2 T 09/13/94 ATTACHMENT NO. 2 SCHEDULE OF PERFORMANCE I. GENERAL PROVISIONS 1. Execution of Agreement by Agency. The Agency shall approve and execute this Agreement, and shall deliver one (1) copy thereof to the Developer. Not later than thirty (30) days after the date of execution and submission of three (3) copies of this Agreement by the Developer. II. CONSTRUCTION DOCUMENTS AND BUILDING PERMIT 2. Submittal of Site Plan. Developer shall prepare and submit to the Agency the Site Plan for the two units. 3. Submission of Complete Construc- tion Drawings and Landscaping Plan. Developer shall submit to the Agency complete Construction (working) Drawings for the two units. 4. Obtaining of Building Permits. Developer shall satisfy all requirements necessary to obtain all building and other permits needed to commence construction of the Improvements for each unit. III. CONVEYANCE OF SITE 5. Conditions Precedent. All Conditions Precedent to Close of Agency Escrow are satisfied. Within thirty (30) days after the execution of this Agreement by the Agency. Not later than thirty (30) days after Agency approval of Site Plan. Not later than thirty (30) days after Agency approval of Complete Construc- tion (working) Drawings and Land- scaping Plan. Not later than sixty (60) days after execution of this Agreement by the Agency. PUBL:18874_111871B2338.0 2-1 09/13/94 6. Conveyance to Developer. The conveyance of title to the Site is effected. IV. CONSTRUCTION PHASE 7. Commencement of Construction. Developer shall commence construction of the Improvements for each Site. 8. Completion of Construction. Developer shall complete construction of all of the Improvements for each lot. V. TRANSFER STAGE 9. Sales of Residences. Each Residence shall be sold to an Eligible Person or Family. 10. Partial Certificates of Completion. Certificates of Completion for each lot shall be recorded simultaneous with the transfer to an Eligible Person or Family. As soon as reasonably possible after satisfactory fulfillment of the Conditions Precedent to the Agency Conveyance. Not later than thirty (30) days after Agency Conveyance of each lot. - Within two hundred seventy (270) days after the commencement of construction for each lot. Within six (6) months from issuance of certificate of occupancy. PUBL:18874_111871B2338.0 2_2 09/13/94 ATTACHMENT NO. 3 GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO AND MAIL TAX STATEMENTS TO Dated: 1ne for xecoraer's use Document transfer tax is: LA QUINTA REDEVELOPMENT AGENCY By: Its: GRANT DEED For a valuable consideration receipt of which is hereby acknowledged, LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, of the State of California, herein called "Grantor" or "Agency" acting to carry out that certain Redevelopment -Plan (herein called "Redevelopment Plan") for the La Quinta Redevelopment Project No. 1, herein called "Project", under the Community Redevelopment Law of California, hereby grants to BUILDING HORIZONS, INC., a California corporation, herein collectively called "Grantee" or "Developer", the real property hereinafter referred to as "Property," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants or record, if any, set forth on Exhibit A. Unless stated otherwise, all capitalized terms herein shall have the same meaning as set out in the DDA (described in Section 1 hereinbelow). PUBL:18874_11187182338.0 3_1 09/13/94 Section 1. Uses For a period of thirty years (the "Affordability Period") the Property may only be used for the construction and residential use of single-family housing to be sold at Affordable Housing Cost as such term is defined by Health and Safety Code Sections 33334.2 and 50053 and occupied by persons and households of Moderate -Income as defined in Health and Safety Code Sections 50105 and 50093, respectively, and subject to the limitations of, that certain Disposition and Development Agreement dated as of , 19_ between Grantor and Grantee (the "DDA"), a copy of which is on file with the Agency as a public record and is incorporated herein by reference, and the Redevelopment Plan. Section 2. Obligation to Refrain From Discrimination The Developer covenants by and for itself, and any successors in interest, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, race, color; religion, creed, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property. Section 3. Form of Nondiscrimination and Nonsegregation Clauses The Developer shall refrain from restricting the rental, sale or lease of the Property on the basis of sex, race, color, creed, religion, 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: (A) In deeds: "The grantee herein covenants by and for himself, his 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 sex, race, color, creed, religion, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " (B) In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, 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 sex, race, color, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased nor shall the lessee himself, or any person claiming under or PUBL: 18874_1 11871 B2338.0 3-2 09/13/94 through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." (C) In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of sex, race, color, creed, religion, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or -segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." Section 4. Effect and Duration of Covenants Grantee, and any successor to Grantee, shall only be responsible for and liable for the performance of the provisions of Sections 1, 2 and 3 during such period of time as it shall be the owner of the Property. Section 5. Covenants for the Benefit of Grantor All covenants set forth in Sections 1, 2, 3 and 9 of this Deed without regard to technical classification or designation shall be binding for the benefit of the Grantor, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. The Grantor, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. Section 6. MortgaQe Protection No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust, provided, however, that any subsequent owner of the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such owner's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. Section 7. Amendments Both Grantor, its successors and assigns, and Grantee and the successors and assigns of Grantee in and to all or any part of the fee title to the Property shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. The covenants contained in this Grant Deed, without regard to technical classification shall not benefit or be enforceable by any owner PUBL:18874_111871B2338.0 3_3 09/13/94 of any other real property. Any amendments to the Redevelopment Plan which change the uses or.development permitted on the Property, or otherwise change any of the restrictions or controls that apply to the Property, shall require the written consent of Grantee or the successors and assigns of Grantee in and to all or any part of the fee title to the Property, but any such amendment shall not require the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. Section 8. Right to Reenter and Re -Vest Title to Property The Agency has the additional right, at its option, to reenter and take possession of the Property, with all Improvements thereon, and terminate and revest in the Agency the estate conveyed to the Developer, if the Developer (or its successors in interest) shall: 1. Fail to start the construction of the Improvements as required by this - - Agreement for a period of forty-five (45) days after written notice thereof from the Agency; or 2. Abandon or substantially suspend construction of the Improvements required by this Agreement for a period of forty-five (45) days after written notice thereof from the Agency; or 3. Transfer or suffer any involuntary transfer of the Site(s), or any part thereof, in violation of this Agreement. 4. Fails to transfer the Site(s) pursuant to the terms of this Agreement within two (2) years of the execution the DDA by the Agency, namely [insert date certain]. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of trust permitted by this Agreement; or 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deed of trust. Upon the revesting in the Agency of title to the Property, the Agency may, but is not required, to use its best efforts to resell the Property as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the state redevelopment law and of the Redevelopment Plan, as it may be amended, 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 or who will assume the ownership, management, and operation of the Site(s) all in accordance with the uses specified herein and specified for the Site(s) or part thereof in the Redevelopment Plan. Upon such resale of the Site(s), the proceeds thereof shall be applied: PUBL:18874_1 1 1871 B2338.0 3-4 09/13/94 I. 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, any expenditures by the Agency or the City in connection with the recapture, management and resale of the applicable Site or part thereof (but less any income derived by the Agency from the applicable Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to such Site or part thereof which the Developer has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or charges as would have been payable if such area were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing_ on the Site or part thereof at the time of reverting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion or operation and management of the Improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Agency, the Developer and its successor or transferee; and 2. in the event additional proceeds are thereafter available, then; Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of:(a) the Purchase Price paid to the Agency by the Developer for the Site; and (b) the costs incurred by the Developer for the development of the Site, and for the Improvements existing on the Site at the time of the reentry and repossession, less, (c) any gains or income withdrawn or made by the Developer from the Site or the Improvements thereon. Any balance remaining after such reimbursements shall be retained by the Agency as its sole property. The rights established in this Section 8 are to be interpreted in light of the fact that the Agency conveyed the Property to the Developer for development of housing available at an affordable housing cost, to persons and families of low -to moderate -income, and not for speculation in undeveloped land. Section 9. Sales or Transfer of Property Grantee covenants that he shall not make any sale, transfer, conveyance or assignment of the Property or any part thereof or any interest therein without the prior written consent of Grantor, in accordance with the DDA. PUBL:18874_111871B2338.0 3_5 09/13/94 IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized, this _ day of , 1994. ATTEST: By: Secretary LA QUINTA REDEVELOPMENT AGENCY Em Chairman "AGENCY" BUILDING HORIZONS, INC. By: "DEVELOPER" PUBL:18874_111871B2338.0 3_6 09/13/94 ATTACHMENT NO. 4 DEVELOPER PROMISSORY NOTE La Quinta, California For value received, BUILDING HORIZONS, INC., a California nonprofit corporation ("Maker") promises to pay to LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic ("Holder") at 78-105 Calle Estado, P.O. Box 1504, La Quinta, California 92253, or at such other address as Holder may direct from time to time in writing the sum disbursed to Maker by Holder pursuant to this Developer Promissory Note, not to exceed (the "Note Amount"). All sums payable hereunder shall be payable in lawful money of the United States of America. This Developer Promissory Note is made pursuant to that certain Disposition and Development Agreement between Maker and Holder, dated as of , 1994 (the "Agreement"). 1. Definitions. All terms herein shall be defined pursuant to their use and definition in the Agreement. 2. Credit of Note Amount. The Note Amount shall be credited toward the purchase price of an individual lot pursuant to the terms of the Agreement. 3. Interest Rate. The Note Amount shall bear zero interest. 4. Due Date. The Note Amount shall be due and payable upon the sale of the lot pursuant to the corresponding Developer Conveyance Escrow. 5. Security. This Developer Promissory Note is secured by a Developer Deed of Trust by and between Maker, as trustor, and Holder, as beneficiary. 6. Holder May Assign. Holder may, at its option, assign its right to receive payment under this Promissory Note without necessity of obtaining the consent of the Maker. 7. Maker Assignment Prohibited. In no event shall Maker assign or transfer any portion of this_ Note without the prior express written consent of the Holder, which consent may be given or withheld in the Holder's sole discretion. 8. Attorneys' Fees and Costs. In the even that any action is instituted with respect to this Promissory Note, the prevailing parry promises to pay such sums as a court may fix for court costs and reasonable attorneys' fees. 9. Non -Waiver. Failure or delay in giving any notice required hereunder shall not constitute a waiver of any default or late payment, nor shall it change the time for any default or payment. PUBL:18874_111871B2338.0 4-1 09/13/94 10. Successors Bound. This Promissory Note shall be binding upon the parties hereto and their respective heirs, successors and assigns. 11. Terms. Any terms not separately defined herein shall have the same meanings as set forth in the Agreement. Dated: Dated: ATTEST: Agency Secretary APPROVED AS TO FORM: BUILDING HORIZONS, INC., a California corporation By: Its: "MAKER" LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic By STRADLING, YOCCA, CARLSON & RAUTH By: Agency Counsel Chairman "HOLDER" PURL.:18874_111871 B2338.0 4_2 09/13/94 ATTACHMENT NO. 5 DEVELOPER DEED OF TRUST AND WHEN RECORDED MAIL TO: LA QUINTA REDEVELOPMENT AGENCY Calle Tampico La Quinta, California 92253 Attn: Executive Director This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. LA QUINTA REDEVELOPMENT AGENCY By: Its: Dated: , 19_ DEED OF TRUST AND ASSIGNMENT OF RENTS (Riverside County) THIS Deed of Trust AND ASSIGNMENT OF RENTS is made as of the day of , 19_, by and among (the "Trustor"), whose address is (the "Trustee"), whose address is , and the LA QUINTA REDEVELOPMENT AGENCY (the "Beneficiary"), whose address is , La Quinta, California FOR GOOD AND VALUABLE CONSIDERATION, including the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the property located in the County of Riverside, State of California, that is described in Exhibit A, attached hereto and by this reference incorporated herein (the "Property"). TOGETHER WITH all rents, issues, profits, royalties, income and other benefits derived from the Property (collectively, the "rents"), provided that so long as Trustor is not in default hereunder, it shall be permitted to collect rents and operate the Project (as defined in the Agreement), in accordance with the requirements of that certain Disposition and Development PUBL:18874_111871 B2338.0 5_ 1 09/13/94 Agreement entered into between Building Horizons, Inc.. (the "Developer") and the Beneficiary as.of , 19_ (the "Agreement"), which Agreement is on file with the Beneficiary as a public record and is incorporated by reference herein; TOGETHER WITH all interests, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements, rights -of -way and rights used in connection therewith or as a means of access thereto, including, without limiting the generality of the foregoing, all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements now or hereafter erected upon the Property (including, in each instance, improvements, restorations, replacements, repairs, additions, accessions or substitutions thereto or therefor); but exclusive of all fixtures, attachments, appliances, furnishings, equipment and machinery (whether fixed or movable). TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all leases or subleases covering the Property or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash or security deposits, advance rentals, and deposits or payments of similar nature; TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase or lease the Property or any portion thereof or interest therein, and any greater estate in the Property owned or hereafter acquired; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property; TOGETHER WITH all the estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages; All of the foregoing, together with the Property, is herein referred to as the "Security". FOR THE PURPOSE OF SECURING: (a) Payment of the "Note Amount" according to the "Developer Promissory Note", as set forth in the "Agreement" as defined herein; PURL: 18874_1 11871 B2338.0 5_2 09/13/94 (b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to advance said sums and the expiration of any applicable cure period and upon five (5) business days notice to the Trustor, with interest thereon as provided herein; (c) Payment of such additional sums and interest thereon which may hereafter be loaned to Trustor, or its successors or assigns, by Beneficiary, when evidenced by a promissory note or notes or other documents reciting that they are secured by this Deed of Trust; and (d) Performance of every obligation, covenant or agreement of Trustor contained herein or the Agreement (and any amendments thereto). ARTICLE I DEFINITIONS 1. "Agreement" or "DDA" means that certain Disposition and Development Agreement entered into by the Developer and the Beneficiary hereof, dated ; said Agreement (a copy of which is on file with the Beneficiary at the address stated above, and including all of its attachments) is incorporated herein by reference. 2. "Developer", "Improvements", "Acquisition Interest" and "Excess Credit Interest" are defined in the Agreement. 3. "Expiration Date" means the expiration date of the Redevelopment Plan. 4. "Mortgage" means any permanent or long-term loan, or any other financing device (including without limitation deeds of trust) the proceeds of which are used in the purchase of the Improvements, which loan is secured by a security financing interest in the Trustor's interest in the Improvements; 5. "Property" means the site together with all additions, improvements, restorations and replacements thereof. 6. "Standards" means those standards of construction and operation characteristic of single family residential housing of size, character, and quality similar to the Project. 7. "Trustor" means Building Horizons, Inc., a California corporation, and each of its transferees and successors in interest. Where an obligation is created herein binding upon Trustor, the obligation shall also apply to and bind any transferees or successors in interest. Where the terms of this Deed of Trust have the effect of creating an obligation of the Trustor and a transferee, such obligation shall be deemed to be a joint and several obligation of the Trustor and such transferee. Unless the context clearly otherwise requires, any capitalized term used herein and not defined herein shall have the meaning given to it under the Agreement (and any amendments thereto). PUBI.:18874_11 1871 B2338.0 5-3 09/13/94 ARTICLE II CERTIFICATE OF COMPLETION UPON PAYMENT; GRANTING OF EASEMENTS Section 2.1 Maintenance and Modification of the Property by Trustor. The Trustor agrees that at all times prior to the Expiration Date, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Property or cause the Property to be maintained, preserved and kept in a condition substantially similar to other single-family housing, projects similar in size, character, and quality to the Project consisting only of those uses allowed by the Agreement. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Property. Section 2.2 Granting of Easements. Trustor may grant easements, licenses, rights -of -way or other similar rights or privileges in the nature of easements with respect to any property or rights included in the Security with the prior written approval of the Beneficiary, which approval shall not be unreasonably withheld. _ ARTICLE III TAXES AND INSURANCE; ADVANCES Section 3.1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, prior to delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings. With respect to special assessments or other similar governmental charges, Trustor shall pay such amount in whole or in installments over a period of years. In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay any such item within seven (7) business days of the earlier of the receipt or mailing of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted under Section 1(2) of Article XV of the California Constitution, shall become an additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor hereby agrees to pay all such amounts. Section 3.2 Provisions Respecting Insurance. (a) Trustor agrees to provide insurance covering one hundred percent (100%) of the replacement cost of all insurable items within the Property in the event of fire, lightning, debris removal, windstorm, flood, vandalism, malicious mischief, theft, mysterious disappearance and PUBL: 18874_1 11871 B2338.0 5-4 09/13/94 hazards, casualties and contingencies as are normally and usually covered by all-risk policies in effect in the locality where the Property is situated. (b) Trustor agrees to carry or cause to be carried a comprehensive general liability insurance with respect to the Property with limits of not less than $100,000 for each occurrence combined single -limit bodily injury and property damage. (c) All such insurance policies and coverages (i) shall be maintained at Trustor's sole cost and expense so long as any part of the amounts secured by this Deed of Trust have not been paid, (ii) shall be with insurers of recognized responsibility, and in form and substance satisfactory to the Beneficiary, (iii) shall name Beneficiary as additional insured, and (iv) shall contain a provision to the effect that the insurer shall not cancel the policy or modify it materially and adversely to the interests of Beneficiary without first giving at least thirty (30) days' prior written notice thereof. Certificates of insurance for all of the above insurance policies, showing the same to be in full force and effect, shall be delivered to the Beneficiary upon demand therefor at any time prior to the Expiration Date. Section 3.3 Advances. In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust or shall fail to keep the Property in good repair and operating condition, the Beneficiary may (but shall be under no obligation to) take out the required policies of insurance and pay the premium on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and, provided that the Beneficiary provides five (5) business days' notice to the Trustor all amounts so advanced therefor by the Beneficiary shall become an additional obligation of the Trustor to the Beneficiary (together with interest as set forth below) and shall be secured hereby, which amounts the Trustor agrees to pay on demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. ARTICLE IV DAMAGE, DESTRUCTION OR CONDEMNATION Section 4.1 Damage and Destruction. If, prior to the Expiration Date, the Property or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casualty, the Trustor shall (a) cause any insurance proceeds arising from insurance referred to in Section 3.2 hereof and any other coverage acquired by the Trustor to be used to promptly rebuild and replace the Property, and (b) repair and replace the Property as necessary to bring the Property into conformity with the Standards; provided that such covenants shall be subordinated to the provisions of all senior obligations to which this Deed of Trust is subordinate. Section 4.2 Condemnation. Subject to the provisions of senior obligations to which this Deed of Trust is subordinate, if title to or any interest in or the temporary use of the Property or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, including any proceeding or purchase in lieu thereof, the proceeds as a result of such PUBL:18874_111871B2338.0 5_5 09/13/94 taking shall be paid as provided by the law of the State of California to all persons or entities as their interests appear of record. ARTICLE V REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE TRUSTOR Section 5.1 Defense of the Title. The Trustor covenants that it is lawfully seized and possessed of title in fee simple to the Property, that it_has good right to sell, convey or otherwise transfer or encumber the same, and that the Trustor, for itself and its successors and assigns, warrants and will forever defend the right and title to the foregoing described and conveyed property unto the Beneficiary, its successors and assigns, against the claims of all persons whomsoever, excepting only encumbrances approved by the Beneficiary. Section 5.2 Inspection of the Project. The Trustor covenants and agrees that at any and all reasonable times and upon reasonable notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Property. ARTICLE VI AGREEMENTS AFFECTING THE PROPERTY; FURTHER ASSURANCES Section 6.1 Other Agreements Affecting Property. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Agreement or any other agreement of any nature whatsoever now or hereafter involving or affecting the Property or any part thereof. Section 6.2 Acceleration of Maturity. If Trustor shall sell, or alienate the Property, or any part thereof, or any interest therein, or shall be divested of Trustor's title or any interest therein in any manner, whether voluntarily or involuntarily, without the prior written consent of Beneficiary, or if default is made in the payment of any principal payable under the secured Note or in the performance of the covenants or agreements hereof, or any of them, Beneficiary shall have the right at its option to declare any indebtedness or obligations secured hereby, irrespective of the maturity date specified in the Note evidencing the same, immediately due and payable. Section 6.3 Further Assurances: After Acquired Property. At any time, and from time to time, upon request by the Beneficiary, the Trustor shall make, execute and deliver, or cause to be made, executed and delivered, to the Beneficiary and, where appropriate, cause to be recorded and/or filed, and from time to time thereafter to be recorded and/or filed, and from time to time thereafter to be re -recorded and/or refiled, at such time and in such offices and places as shall be deemed desirable by the Beneficiary, any and all such other and further deeds of trust, security agreements, financing statements respecting personal property, instruments of further assurance, certificates and other documents as may, in the opinion of the Beneficiary, be necessary or desirable in order to effectuate, complete or perfect, or to continue and preserve, (a) the obligations of the Trustor under this Deed of Trust, and (b) the lien of this Deed of Trust as a PURL: 18874_111871B2338.0 5_6 09/13/94 lien prior to all liens except those obligations which shall be senior obligations pursuant to the provisions of this Deed of Trust. Upon any failure by the Trustor to do so, the Beneficiary may make, execute, record, file re-record and/or refile any and all such deeds of trust, security agreements, instruments, certificates and documents for and in the name of the Trustor, and the Trustor hereby irrevocably appoints the Beneficiary the agent and attorney -in -fact of the Trustor to do so. The lien hereof shall automatically attach, without further act, to all after -acquired property deemed to be part of the Security as defined herein. Section 6.4 Agreement to Pay Attorney's Fees and Expenses. In the event of an Event of Default hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall bear interest from the date such expenses are incurred at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. Section 6.5 Subrogation: Payment of Claims. Provided that the Beneficiary gives notice of at least five (5) business days to the Trustor, the Beneficiary shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid by the Beneficiary pursuant to the provisions hereof. If permitted in the Mortgage, the Beneficiary shall have the right to pay and discharge the obligations secured by the Mortgage. Section 6.6 Transfer. No sale, transfer, lease, pledge, encumbrance, creation of a security interest in, or other hypothecation of the Security shall relieve the Trustor from primary liability under this Deed of Trust or the Agreement. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events of Default Defined. The occurrence of any failure of the Trustor to perform any act, obligation or promise of the Trustor made under this Deed of Trust and the continuation of said failure for a period of sixty (60) business days after written notice specifying such failure and requesting that it be remedied shall have been given to Trustor from the Beneficiary, shall be an Event of Default under this Deed of Trust. Section 7.2 The Beneficiary's Right to Enter and Take Possession. If an Event of Default shall have occurred and be continuing, the Beneficiary may: (a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Property and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Property, or part thereof or interest therein, increase the income therefrom or protect the Security hereof and, with or without taking possession of the Property, sue for or otherwise collect the rents, issues and profits thereof, PURL: 18874_1 11871 B2338.0 5_7 09/13/94 including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys' fees, upon any amounts owed to Beneficiary, all in such order as Beneficiary may determine. The entering upon and taking possession of the Property, the collection of such rents, issues and profits and the application thereof, as aforesaid, shall not cure or waive any Default or notice of Default hereunder or invalidate any act done in response to such Default or pursuant to such notice of Default and, notwithstanding the continuance in possession of the Property or the collection, receipt and application of rents, issues or profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, the Agreement or by law upon occurrence of any Event of Default, including the right to exercise the power of sale. A copy of any Notice of Default and a_copy of any Notice of Sale hereunder shall be mailed to Trustor at its address herein given; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor's interest in the property to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of the County in which the Property is located; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to the Property, including any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Section 7.4 Foreclosure By Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust which is secured hereby, and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. (a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and after Notice of Sale having been given as required by law, sell the Property, at the time and place of sale fixed by it in said Notice of Sale, either as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers. (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to PUBL:18874_111871 B2338.0 5_8 09/13/94 payment of all sums then secured hereby and the remainder, if any, to the person or persons legally entitled thereto. (c) Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Section 7.5 Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under Security, and without regard to the then value of the Property or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Property, unless such receivership is sooner terminated. Section 7.6 Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. Section 7.7 No Waiver. (a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or of any breach by the Trustor in the performance of the obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights powers or remedies consequent on any breach or Default by the Trustor. (b) If the Beneficiary (i) takes other or additional security, (ii) waives or does not exercise any right granted herein, or in the Agreement, (iii) certifies completion of any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements of this Deed of Trust or the Agreement, (iv) consents to the filing of any map, plat or replat affecting the Security, (v) consents to the granting of any easement or other right affecting the Security, or (vi) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, PUBL: 1 8874_1 11871 B2338.0 5-9 09/13/94 surety or guarantor; nor shall any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in the event of any Default then made or of any subsequent Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Property, the Beneficiary, without notice, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Security (or a part thereof) or the indebtedness secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the Trustor and without in any way releasing or discharging any liabilities, obligations or undertakings of the Trustor. Section 7.8 Suits to Protect the Security. The Beneficiary shall have power (upon ninety (90) days notice to the Trustor) to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security (and the rights of the Beneficiary as secured by this Deed of Trust) by any -acts which may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest (as described in this Deed of Trust) in the Security and in the rents, issues, profits and revenues arising therefrom, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the security thereunder or be prejudicial to the interests of the Beneficiary. Section 7.9 Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings for any amount which may become due and payable by the Trustor hereunder after such date. ARTICLE VIII SUBORDINATION Section 8.1 Subordination. The Beneficiary agrees to execute documents reasonably satisfactory to its counsel to subordinate the lien of this Deed of Trust, provided no Notice of Default under its terms appears of record, to the following: Easements in favor of public agencies or public utilities typically conveyed in connection with similar developments. PUBL: 18874_1 11871 B2338.0 5_ 10 09/ 13/94 ARTICLE IX MISCELLANEOUS Section 9.1 Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the parry against whom enforcement of any waiver, change, discharge or termination is sought. Section 9.2 Trustor Waiver of Rights. Trustor hereby acknowledges that it, is aware of and has the advice of counsel of its choice with respect to its rights under the Constitution of the United States, including, but not limited to, its rights arising under the Fourth, Fifth, Sixth and Fourteenth Amendments thereto, and the Constitution of the State of California. Trustor agrees that Beneficiary may exercise its rights hereunder in accordance with the provisions hereof, including, but not limited to, the exercise of the power of sale pursuant to Section 7.4 hereof, and Trustor hereby expressly waives its rights under such Constitutions with respect thereto, including, but not limited to, its rights, if any, to notice and a hearing upon the occurrence of an Event of Default hereunder; provided, however, nothing contained herein shall be deemed to be a waiver of Trustor's rights to reinstate or redeem this Deed of Trust in accordance with applicable law. Trustor further waives to the extent permitted by law, (a) the benefit of all laws now existing or that may hereafter be enacted providing for any appraisement before sale of any portion of the Security, (b) all rights of valuation, appraisement, stay of execution, and marshaling in the event of foreclosure of the liens hereby created, and (c) all rights and remedies which Trustor may have or be able to assert by reason of the laws of the State of California pertaining to the rights and remedies of sureties. Section 9.3 Reconve, ay nce by Trustee. Upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey to Trustor, or to the person or persons legally entitled thereto, without warranty, any portion of the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or person legally entitled thereto." Section 9.4 Notices. Whenever Beneficiary, Trustor or Trustee shall desire to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request, or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by registered or certified mail, postage prepaid, return receipts requested, or by telegram, addressed to the address set forth in the first paragraph of this Deed of Trust. Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change. Section 9.5 Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Section 9.6 Captions. The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust. PuB.:18874-111871 B2338.0 5-11 09/13/94 Section 9.7 Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. Section 9.8 No Merger. If title to the Property shall become vested in the Beneficiary, this Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Beneficiary shall continue to have andenjoy all of the rights and privileges of Beneficiary under this Deed of Trust. In addition, upon foreclosure under this Deed of Trust pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Security shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice of termination to such tenant or subtenant. Section 9.9 Governin2 Law. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. Section 9.10 Gender and Number. In this Deed of Trust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. Trustor PUBL: 18874_1 11871 B2338.0 5_12 09/13/94 EXHIBIT "A" TO ATTACHMENT NO. 5 LEGAL DESCRIPTION OF PROPERTY [To Be Inserted] PUBL:18874_111871 B2338.0 5-13 09/13/94 ATTACHMENT NO. 6 CONSTRUCTION PROMISSORY NOTE La Quinta, California FOR VALUE RECEIVED, BUILDING HORIZONS, INC., collectively, "Maker" promise to pay to LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic or order ("Holder") at La Quinta, California, or at such other address as Holder may direct from time to time in writing, the sum of $ (the "Note Amount"), together with interest thereon at the rate set forth herein. All sums payable hereunder shall be payable in lawful money of the United States of America. This -Construction Promissory Note ("Note") is made in connection with the provision by the Holder of funds equal to the Construction Note Amount pursuant to that certain Disposition and Development Agreement by and among Maker and the Holder, dated as of , 1994 (the "Agreement"). 1. Disbursements. The Note Amount shall be disbursed pursuant to Sections 201 and 206 of the Agreement. The record of such disbursements shall be recorded from time to time by the Agency Executive Director or his designee on Exhibit A to this Construction Promissory Note. 2. Obligation to Pay The Note Amount shall be due and payable in full upon the Developer conveyance of the property. 3. Prepayment of Note Amount. Maker may prepay to Holder the full Note Amount at any time prior to the due date of the Note Amount without penalty. 4. Security. This Note is secured by a Construction Deed of Trust by and between Maker, as trustor, and Holder, as beneficiary (the "Construction Deed of Trust"). 5. Holder May Assign. Holder may, at its option, assign its right to receive payment under this Note without necessity of obtaining the consent of the Maker. PUBL:18874_111871B2338.0 f-1 09/13/94 6. Makers Assignment Prohibited. In no event shall Maker assign or transfer any portion of this Note without the prior express written consent of the Holder, which consent may be given or withheld in the Holder's sole discretion. 7. Attorneys' Fees and Costs. In the event that any action is instituted with respect to this Note, the prevailing parry promises to pay such sums as a court may fix for court costs and reasonable attorneys' fees. Holder's right to such fees shall not be limited to or by its representation by staff counsel, and such representation shall be valued at customary and reasonable rates for private sector legal services. Note. 8. Time of the Essence. Time is of the essence of the performance of all obligations under this Promissory 9. Non -Waiver. Failure or delay in giving any notice required hereunder shall not constitute a waiver of any default or late payment, nor shall it change the time for any default or payment. 10. Successors Bound. This Note shall be binding upon the parties hereto and their respective heirs, successors and assigns. PUBL:18874_111871B2338.0 C-2 s 09/13/94 11. Terms. Any terms not separately defined herein shall have the same meanings as set forth in the Agreement. BUILDING HORIZONS, INC. Dated: 1994 By: Its: Dated: , 1994. - - "MAKER" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Dated: , 1994 By: Executive Director ATTEST: Agency Secretary "HOLDER" PUBL:18874_1 11871 B2338.0 6_3 09/13/94 EXHIBIT "A" TO ATTACHMENT NO. 6 DISBURSEMENT RECORD Acknowledgement of Disbursement Amount Date Receipt of Maker 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. PUBL:18874_111871B2338.0 6-4 09/13/94 ATTACB VIENT NO. 7 CONSTRUCTION DEED OF TRUST [TO BE INSERTED] PUBL:18874_111871B2338.0 7-1 09/13/94 ATTACHMENT NO. 8 BUYER PROMISSORY NOTE La Quinta, California , 1994 1. FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of the LA QUINTA REDEVELOPMENT AGENCY ("Holder" or "Agency"), at , La Quinta, California or such other place as the Holder may from time to time designate in writing, $ , plus, if applicable, the Agency Equity as described below (the "Note Amount"), in lawful money of of the United States of America, together with interest and other charges as set forth below, until fully paid_ Unless definitions of terms are expressly set out at length -herein, each term shall have the same definition as set forth in the DDA. 2. The Note Amount shall be due on the date which is thirty (30) years from date hereof, or upon earlier transfer of the Restricted Unit as provided in Section 6 hereof. This Promissory Note is made and delivered pursuant to and in implementation of a Disposition and Development Agreement by and between Building Horizons, Inc., a California corporation ("Developer") and Holder dated , 19_ (the "DDA"), a copy of which is on file as a public record with the Holder and is incorporated herein by reference. The DDA provides for the disposition and development of real property, including that certain real property which secures the Second Deed of Trust hereinafter referred to. This Promissory Note is made to assure the repayment of the Note Amount to Holder by Maker, and to provide security for the Holder as to such repayment. The Maker acknowledges that the execution of this Promissory Note by Maker is a material requirement, but for which the Holder would not allow this Note to be assumed by Maker. 3. The failure of the Maker to timely pay in full when due the "Note Amount" shall constitute a default of Maker under the terms of this Promissory Note. In the event the Maker fails to timely pay in full when due the Note Amount, any portion which is not timely paid in full shall accrue interest at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. 4. The Restricted Unit is burdened with Affordable Housing covenants initially placed on the property by the Developer pursuant to Section 401-404 of the DDA as follows: A. Affordable Housing (a) Number of Units. Developer shall develop two (2) detached, single-family homes (the "Restricted Units") within the Project Area and shall develop all on -site and off -site public improvements connected therewith, all as described and set forth in the Scope of Development (Attachment No. 1). Developer shall restrict each of the units for sale to a Moderate Income Household pursuant to the applicable income and affordability provisions contained herein. The Developer further covenants and agrees that the above -referenced PUBL:18874_111871B2338.0 8-1 09/13/94 occupancy, ownership and affordability requirements shall bind and be enforceable against the Site for the period of thirty (30) years commencing with the conveyance of each respective parcel to the Developer. (b) Definitions. (i) "Affordable Housing Cost" shall be that purchase price which would result in maximum monthly housing payments for a thirty (30) year mortgage for ninety percent (90%) of the purchase price under currently prevailing mortgage loanrates or the interest rate of any below -market mortgage program for which such purchaser has obtained a first trust deed loan, for the moderate income group calculated pursuant to Health and Safety Code Section 50052.5, which sets forth the following formula: Moderate Income Households - not less than twenty-eight percent (28 %) of the gross income of the household, nor more than the product of thirty-five percent (35%) times the greater of one hundred ten percent (110%) of area median income adjusted for family size appropriate for the Affordable Unit, or the gross income of the household for households earning greater than one hundred ten percent (110%) and not more than one hundred twenty percent (120%) of the area median income adjusted for family size. (ii) "Moderate Income Household" shall mean a household earning not greater than one hundred twenty percent (120%) of Riverside County median income, as determined by the United States Department of Housing and Urban Development from time to time, as set forth in Health and Safety Code Section 50093. (iii) "Eligible Person or Family" shall mean any person or family who meets the income qualifications for Moderate Income Households. (iv) "Owner" shall mean Developer and any successor in interest of Developer to any lot of the Site except where a provision of this Agreement expressly excludes Developer from the definition of owner. (v) "Proposed Transferee" shall mean a person or family determined to be an Eligible Person or Family to whom the Developer or any successor Owner desires and proposes to Transfer a Restricted Unit. (vi) "Purchase Housing Cost" of an Eligible Person or Family purchasing a Restricted Unit shall include all of the following associated with that Restricted Unit, estimated or known as of the date of the proposed sale of the Restricted Unit: (1) Principal and interest on a mortgage loan including any rehabilitation loans, and any loan insurance fees associated therewith. (2) Property taxes and assessments. (3) Fire and Casualty insurance covering replacement value of property improvements. PUBL:18874_111871B2338.0 8_2 09/13/94 (4) Any homeowner association fees. Monthly housing cost of a purchaser shall be an average of estimated costs for the next twelve (12) months. (vii) "Restricted Unit" shall mean a dwelling unit, which shall be a single-family residence, subject to the restrictions of this Agreement (including, without limitation, the Declaration of Conditions, Covenants and Restrictions [Attachment No. 81). (viii) "Sales Price" shall mean all sums paid by a purchaser to a seller for, or in conjunction with, the acquisition of a Restricted Unit, including the purchase price designated in any purchase agreement, consideration for personal property and all other costs and fees paid by the purchaser to or for the benefit of the seller. (ix) "Transfer" shall mean any sale, assignment, conveyance, lease or transfer; voluntary or involuntary, of any interest in a Restricted Unit. Without limiting the generality of the foregoing, Transfer shall include (i) a transfer by devise, inheritance or intestacy to a party who does not meet the definition of Eligible Person or Family; (ii) a life estate; (iii) creation of a joint tenancy interest; (iv) a gift_of all or any portion of a Restricted Unit; or (v) any voluntary conveyance of a Restricted Unit. Transfer shall not include transfer to a spouse in a dissolution proceeding; however any subsequent Transfer shall be subject to this restriction. (x) "Transferee" shall mean any natural person or entity who obtains ownership or possessory rights in a Restricted Unit pursuant to a Transfer. (c) Sales of Restricted Units. Developer agrees that Developer shall sell each Restricted Unit to an Eligible Person or Family at an Affordable Housing Cost (the "Developer Conveyance") and that during the Affordability Period each subsequent resale of a Restricted Unit by the then -Owner thereof shall be to an Eligible Person or Family at an Affordable Housing Cost. Developer agrees that the Conditions, Covenants and Restrictions (Attachment No. 10) giving effect to the foregoing restrictions shall be recorded against each lot of the Site concurrently with the Disposition Conveyance. Developer agrees to commence to market each Restricted Unit not later than the completion of construction of each Restricted Unit; each Restricted Unit shall be sold to an Eligible Person or Family prior to issuance of a Certificate of Completion as to any such Restricted Unit for purposes of Section 322 hereof. For purposes of satisfying the requirement that all of the Restricted Units shall be occupied by Eligible Persons or Families: (a) an individual or family who qualifies as an Eligible Person or Family at the time he or she first takes title to a Restricted Unit will be deemed an Eligible Person or Family as long as he or she continues to hold title to such Restricted Unit even though the Eligible Person or Family subsequently ceases to meet the income or other requirements of an Eligible Person or Family, and (b) when an Owner releases title to a Restricted Unit, such unit will be considered as occupied by an Eligible Person or Family if it is held vacant and available for such occupancy until title is transferred to another Eligible Person or Family, at which time the status of the new Owner as an Eligible Person or Family is to be determined. PURL: 18874_111871B2338.0 8_3 09/13/94 (d) Restrictions on Transfer by Sale of the Restricted Property or Any Restricted Unit. (i) For the duration of the Affordability Period Developer, for itself and any subsequent Owner, hereby subjects the Site to certain restrictions and limits the price at which Developer or any other Owner may sell and/or resell the Site and the persons to whom Developer or any other Owner may sell the Site. (ii) DEVELOPER AND ANY OTHER OWNER . . UNDERSTANDS THAT THE DETERMINATION OF THE SALES PRICE CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED AND THAT THE SALE PRICE PERMITTED HEREUNDER MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION. DEVELOPER AND ANY OTHER OWNER FURTHER ACKNOWLEDGE THAT, AT ALL TIMES IN SETTING THE SALES PRICE, THE PRIMARY OBJECTIVE OF THE AGENCY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE PERSONS OR FAMILIES AT AFFORDABLE HOUSING COST. THE SALES PRICE MAY BE LESS THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO RESTRICTIONS. Developer's Initials (iii) Transfer of a Restricted Unit. Developer and any successor Owner may transfer a Restricted Unit only in strict accordance with the provisions of this Agreement. Specifically, during the Affordability Period, Owner may Transfer a Restricted Unit (i) only to an Eligible Person or Family and (ii) only if the Purchase Housing Cost does not exceed Affordable Housing Cost for the Eligible Person or Family; and (iii) only if the Transfer has previously been approved in writing by the Agency. In order to comply with this Subsection 4(c), Developer and any successor Owner must calculate the Affordable Housing Cost for the Proposed Transferee of the Restricted Unit in accordance with the definition set forth in Subsection 2(a) of this Section 401. After calculating the Affordable Housing Cost for the Proposed Transferee, the Owner must ensure that the sum of the Sales Price and all costs listed in the definition of Purchase Housing Cost set forth in Subsection 2 of this Section 401 does not exceed that Affordable Housing Cost. The calculation of the Sales Price under this Subsection 4(c) is illustrated by example in Attachment No. 12 attached hereto. (iv) Notwithstanding anything to the contrary in this Section 401, at close of the Developer Conveyance Escrow transferring the Restricted Unit from the Developer to the Proposed Transferee (the "Initial Owner"), the Initial Owner shall execute a Buyer's Promissory Note substantially in the form of Attachment No. 8, which is attached hereto and incorporated herein by reference, which Promissory Note shall be secured by a Second Deed of Trust substantially in the form of Attachment No. 9, which is attached hereto and incorporated herein by reference. Said Second Deed of Trust shall be subordinate to any mortgage obtained by the Initial Owner for the purpose of securing funds to be applied to the Sales Price of the PUBL: 18874_1 11871 BM38.0 8-4 s 09/13/94 Restricted Unit so long as the loan -to -value ratio, determined with respect to both such mortgage and the Second Deed of Trust, does not exceed ninety percent (90%). The Buyer's Promissory Note shall be non -interest bearing. The principal amount shall be equal to the amount of the Agency Assistance necessary for the Individual or Family to qualify for the Lender's loan and ensure the affordability requirements are met but shall in no event exceed Dollars ($_ applicable to each Restricted Unit (the "Note Amount"). The Note Amount shall be due and payable in full upon the earlier of thirty (30) years from the close of the Developer Conveyance Escrow; or (ii) the Transfer of the Restricted Unit by the Initial Owner. However, should the Initial Owner transfer the Restricted Unit to an Eligible Person, Family at Affordable Housing Cost, the Transferee shall assume the Promissory Note (Attachment No. 8) and Agency shall extend the due date of the Note Amount until the next Transfer of the Restricted Unit. The foregoing provisions will apply to every successive Transfer during the Affordability Period. (e) Process to Complete Transfer by Sale of Restricted Units. Upon the Transfer by sale of a Restricted Unit, the following, procedures shall apply: (i) Notice to City: Owner shall send to the Agency in care of the La Quinta Housing Department (or its successor), at , La Quinta, California the form attached hereto as Attachment No. 13 fully completed and executed by the Owner and the Proposed Transferee (the "Approval Request"). (ii) Qualifications of Proposed Transferee. No Transfer shall occur unless and until determination is made based on the Certificate in the form of Attachment No. 13 attached hereto ("Certificate") and attachments thereto, that the Proposed Transferee (i) intends to occupy the Restricted Unit as the Proposed Transferee's principal residence and (ii) is an Eligible Person or Family. Each Proposed Transferee shall submit a Certificate to the Developer or subsequent owner certifying its intent with regard to the occupancy of the Restricted Unit and as to the truth and accuracy of all information supplied as to the Gross Income (calculated as set forth in 25 Cal. Code of Regs., Section 6914) of the Proposed Transferee ("Proposed Transferee's Certificate"). Developer or subsequent owner shall certify pursuant to Attachment No. 13 hereof the information provided on the Proposed Transferee's Certificate pursuant to direction on that Certificate. Developer or subsequent owner shall be entitled to rely on the information on the Proposed Transferee's Certificate and attachments thereto in making the determination required by this subsection 5(b) unless the Developer or subsequent owner has knowledge of, or a reasonable basis for belief as to the, inaccuracy or falsehood of the Proposed Transferee's Certificate. (iii) The Sales Price for the Restricted Unit shall not exceed the maximum price at which the Purchase Housing Cost to be paid by the Proposed Transferee would not exceed Affordable Housing Cost. The calculation of the Sales Price under this subsection is illustrated by example in Attachment No. 13 attached hereto. However, in determining Affordable Housing Cost, the family size of the Proposed Transferee shall be deemed to be persons in the case of a 1 bedroom, 3 persons for a 2 bedroom, 4 persons for a 3 bedroom, or 5 persons for a 4 bedroom Restricted Unit. If the actual family size of the Proposed Transferee is larger, then the actual family size shall be used. (iv) Certificates from Parties. With respect to each sale of a Restricted Unit, Developer or subsequent owner shall submit to the Agency, not later than four PUBL:18874_111871B2338.0 8_5 09/13/94 (4) weeks prior to close of escrow on the sale of a Restricted Unit, a certificate that (i) the Developer or subsequent owner has made the affirmative determinations required by Section 4(a) above and (ii) the Sales Price conforms with Section 4(b) above. The Developer or subsequent owner shall concurrently submit to the Agency the Proposed Transferee's Certificate and all attachments thereto and all other documents or material with regard to information required by Sections 4(a) and/or (b) above, whether or not relied on by the Developer or subsequent owner. Further, the Developer or subsequent owner and Proposed Transferee each shall certify in writing, in a form acceptable to the Agency, that the Transfer shall be closed in accordance with, and only with, the terms of the sales contract and other documents submitted to and approved by the Agency and that all consideration delivered by the Proposed Transferee to Developer or subsequent owner has been fully disclosed to the Agency. The written certificate shall also include a provision that, in the event a Transfer is made in violation of the terms of this Agreement or false or misleading statements are made, in any documents or certificate submitted to the Agency for its approval of the Transfer, the Agency shall have the right to file an action at law or in equity to seek termination and/or rescission -of the sales contract and/or declare the sale void, notwithstanding the fact that the Transfer may have closed and become final as between Developer or subsequent owner and its Transferee. In the event Developer or subsequent owner fails to comply with Sections 4(a) or 4(b) above, any costs, liabilities or obligations incurred by the Developer or subsequent owner and its Transferee for the return of any monies paid or received or for any costs and legal expenses, shall be borne jointly and severally by the Developer or subsequent owner and its transferee and such parties shall hold the City and Agency harmless and reimburse their expenses, legal fees and costs for any action the City and/or Agency take in enforcing the terms of this Section 401. (v) Execution of Promissory Note and Second Deed of Trust. Notwithstanding anything to the contrary in this Agreement, at close of Escrow of the sale of the Housing Unit from the Developer to the Buyer, the Buyer shall execute a Buyer Promissory Note (Attachment No. 8) which shall be secured by a Second Deed of Trust (Attachment No. 9). Said Second Deed of Trust shall be subordinate to any mortgage(s) obtained by the Buyer for the purpose of securing funds to be applied to the Sales Price of the Housing Unit. The Buyer Promissory Note shall be non -interest bearing. The principal amount of the Promissory Note shall be an amount equal to the amount actually given as cash plus an Agency Equity Share Amount which becomes applicable only in the event that the Buyer is unable after good faith efforts for 4 months to find an Eligible Person or Family to transfer the home at Affordable Housing Cost. In the event that the Buyer has provided the Agency with evidence of their good faith efforts then Agency may approve the sale to a nonqualified buyer and release the covenants by receiving in addition to the cash amount originally provided the additional Agency Equity Amount equal to fifty (50) percent of the difference between the Buyer's original purchase price and the sales price of nonrestricted unit. The Note Amount shall not be payable in installments during the term of the Note; rather, the Note Amount shall be payable solely upon Sale or Transfer or may be assumed by the Transferee in accordance with the provisions set forth herein. When the initial Owner makes a Sale or Transfer of the Housing Unit to an Eligible Person or Family at Affordable Housing Cost, then the Buyer's Promissory Note may be assigned to the new Buyer. So long as the Transferee purchasing the Housing Unit from the Owner is an Eligible Person or Family and the Sale of the Housing Unit is made at a price which is not in PUBL:18874_111871B2338.0 8_6 09/13/94 excess of Affordable Housing Cost, the Transferee shall assume the obligations of the Owner under the Promissory Note and Second Deed of Trust to repay the Agency Equity pursuant to the Promissory Note by execution of an assumption agreement in the form set forth as Attachment No. 16 of this Agreement, together with other written documentation satisfactory to the Agency, and Agency shall extend the due date of the Agency Equity pursuant to the Note Amount until the next Transfer of the Housing Unit by said Transferee. At such next Transfer, the Agency will again extend the due date of the Agency Equity pursuant to the Note Amount if the Sale or Transfer complies with the requirements of this Section. So long as each Transferee from the Owner and each subsequent Owner: (1) is an Eligible Person or Family, (2) acquires the Housing Unit at an Affordable Housing Cost, and (3) assumes the obligations of the predecessor Owner as aforesaid; then the Agency agrees to extend the due date of the Agency Equity pursuant to the Note Amount and the transferring Owner shall not be required to pay the Agency Equity portion of the Note Amount upon transfer of the Housing Unit. The Agency Equity payment requirement is intended as a penalty against the Owner, to capture a portion of the equity in the Restricted Property for the benefit of the Agency/Holder, in the event that the Owner makes a sale of the Restricted Property to a Buyer that is not an Eligible Person or Family. This equity recapture requirement is intended to be a cumulative remedy, together with all other remedies available to the Agency/Holder to compensate for the removal of the affordable housing covenants of the Grant Deed and this Agreement on the Housing Unit, to compensate the Agency for the administrative costs of operating the housing program of the Agency and to provide funds to the Agency to further assist low and moderate income persons in the provision of housing. In the event the equity recapture provisions of the Promissory Note are found by a court or administrative agency of competent jurisdiction to be in contravention of law or administrative regulation, the Applicable Percentage shall be reduced to the maximum percentage allowable by applicable law or administrative regulation, or may be otherwise modified by judicial decree or order so as to comply with applicable law. (vi) Written Consent of Agency Required Before Transfer. During the Affordability Period the Restricted Property or the Restricted Unit, as the case may be, and any interest therein, shall not be conveyed by any Transfer except with the express written consent of the Agency, which consent shall be given only if the Transfer is consistent with the Agency's goal of creating, preserving, maintaining and protecting housing in the City of La Quinta for Eligible Persons and Families and shall be in accordance with the provisions of this subsection 5. This provision shall not prohibit the encumbering of title for the sole purpose of securing financing of the purchase price of the Restricted Unit. (vii) Delivery of Documents. Upon the close of the proposed Transfer, the Owner and Transferee, as applicable, shall provide the Agency with a certified copy of the recorded Assumption Agreement, a copy of the final sales contract, settlement statement, escrow instructions, all certificates required by this subsection 5 and any other documents which the Agency may request. (f) Covenants of Owner. The Owner of each Restricted Unit by acceptance of a deed to the Restricted Unit covenants and agrees that, at all times during the Affordability Period, its Restricted Unit will be continuously occupied by Owner as its principal residence, and shall not be rented, subleased, or subject to any other business arrangement, PUBt:18874_111871 B2338.0 8-7 09/13/94 whereby consideration shall be paid by any occupant of a Restricted Unit to the Owner of the Restricted Unit; provided, if the Restricted Unit is occupied by an Eligible Person or Family, the family members whose income was considered in determining the eligibility of that family may make monetary contributions toward the Purchase Housing Costs of the Restricted Unit. Owner agrees that it shall not record or cause the recordation of any deed of trust (a "Further Encumbrance") securing a note having an original principal sum which, when added to the sum of the principal amount(s) of any notes secured by any deeds of trust against the Restricted Property as of the date of recordation of the Further Encumbrance, exceeds the fair market value of the Restricted Property. B. Uses In Accordance with Redevelopment Plan: Nondiscrimination The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Sites or any part thereof that the Developer and such successors and assignees, shall devote the Sites to the uses specified in the Redevelopment Plan, the Grant Deed (Attachment No. 3), the Declaration of Conditions, Covenants and Restrictions (Attachment No. 10) and this Agreement for the periods of time specified therein. The foregoing covenants shall run with the land. The Developer covenants by and for itself and any successors'in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Sites, nor shall the Developer itself or any person claiming under or through it establish or permit'any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Sites. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the property on the basis of race, color, creed, religion, sex, marital status, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (b) In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: PUBL:18874_111871B2338.0 8_8 09/13/94 "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, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." (c) In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees 9f the premises." The covenants established in this Agreement and the deeds of conveyance for the Sites shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City and any successor in interest to the Sites, together with any property acquired by the Developer pursuant to this Agreement, or any part thereof. The covenants against racial discrimination shall remain in effect in perpetuity. C. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. The Agreement and the covenants shall run in favor of the Agency, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Sites or in the Project Area. The Agency shall have the right, if this Agreement or covenants 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 or any other beneficiaries of this Agreement and covenants may be entitled. D. Maintenance of the Sites The Developer shall maintain the improvements on the Site in conformity with the La Quinta Municipal Code and the requirements of the Declaration of Conditions, Covenants and Restrictions (Attachment No. 8), and shall keep the Sites free from any accumulation of debris or waste materials. The Developer shall also maintain the landscaping required to be planted under the Scope of Development (Attachment No. 3) in a healthy and attractive condition. If, at any time, Developer fails to maintain the Site or any portion thereof, and said condition is not corrected as soon as reasonably possible after written notice from the Agency, either the Agency PURL: 18874_1 1 1871B2338.0 8_9 09/13/94 or the City may perform the necessary maintenance and Developer shall pay such costs as are reasonably incurred for such maintenance. Upon close of each Developer Conveyance, the Developer's obligations under this Section 404 with respect to such Site shall be assumed by the Transferee of such Site. This covenant shall run with the land and shall remain in effect for the term of the Redevelopment Plan. 5. This Promissory Note shall further evidence such obligation of the Maker to pay to the Holder the Note Amount. 6. The Note Amount shall accrue no interest as long as the unpaid balance is not due and payable. 7. If Maker shall sell, or alienate the Restricted Unit, or any part thereof, or any interest therein, or shall be divested of title or any interest therein in any manner, whether voluntarily or involuntarily, without the prior written consent of Holder, or if default is made in the payment of any principal or interest payable under this Promissory Note or in the performance of the covenants or agreements hereof, or any of them, Holder shall have the right at its option to declare any indebtedness or obligations secured hereby, including the Agency Equity, irrespective of the maturity date specified herein, immediately due and payable. However, should the Transferee be an Eligible Person, Family and/or Agency pursuant to Section 401 of the DDA, the Transferee shall assume this Promissory Note and the due date shall be extended until the next sale of the Restricted Unit. The foregoing provisions will apply to every successive sale during the Affordability Period. Should the Note Amount not be paid at the end of the Affordability Period, the Holder shall, in consideration for the availability of moderate -income housing during the Affordability Period, declare the Promissory Note paid in full. 8. This Promissory Note is fully assumable pursuant to Section 401 of the DDA, the provisions of which shall govern in their entirety. 9. Upon payment in full, the Holder shall execute such documents or certificates necessary to evidence the same. 10. The repayment of the indebtedness evidenced by this Promissory Note is secured by a Second Deed of Trust, of even date herewith, executed by the Maker (the "Second Deed of Trust"). 11. If any default is made hereunder, the Maker further promises to pay reasonable attorneys' fees and costs and expenses incurred by the Holder hereof in connection with any such default or in any action or other proceeding brought to enforce any of the provisions of this Promissory Note. 12. Holder May Assign. Holder may, at its option, assign its right to receive payment under this Promissory Note without necessity of obtaining the consent of the Maker. PURL: 18874_1 11871 B2338.0 8_ 10 09/13/94 13. Maker Assignment Prohibited. In no event shall Maker assign or transfer any portion of this Note without the prior express written consent of the Holder, which consent may be given or withheld in the Holder's sole discretion. 14. Non -Waiver. Failure or delay in giving any notice required hereunder shall not constitute a waiver of any default or late payment, nor shall it change the time for any default or payment. 15. Successors Bound. This Promissory Note shall be binding upon the parties hereto and their respective heirs, successors and assigns. MAKER PUBL: 18874_1 11871 B2338.0 8-11 09/13/94 STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On , 1994, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument for the purposes set forth therein. WITNESS my hand and official seal. (SEAL) PURL: 18874_11 1871 B2338.0 8-12 09/13/94 ATTACHMENT NO. 9 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: LA QUINTA REDEVELOPMENT AGENCY 78-105 Calle Estado La Quinta, California 92253 Attn: Executive Director Dated: This document is exempt from the payment of a recording fee pursuant - - to Government Code Section 6103. LA QUINTA REDEVELOPMENT AGENCY By: Its: 19 SECOND DEED OF TRUST AND ASSIGNMENT OF RENTS (Riverside County) THIS SECOND DEED OF TRUST AND ASSIGNMENT OF RENTS is made as of the day of , 19_, by and among (the "Trustor"), whose address is , (the "Trustee"), whose address is and the LA QUINTA REDEVELOPMENT AGENCY (the "Beneficiary"), whose address is , La Quinta, California FOR GOOD AND VALUABLE CONSIDERATION, including the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the property located in the County of Riverside, State of California, that is described in Exhibit A, attached hereto and by this reference incorporated herein (the "Property"). TOGETHER WITH all rents, issues, profits, royalties, income and other benefits derived from the Property (collectively, the "rents"), provided that so long as Trustor is not in default hereunder, it shall be permitted to collect rents and operate the Project (as defined in the Agreement), in accordance with the requirements of that certain Disposition and Development Agreement entered into between Building Horizons, Inc.. (the "Developer") and the Beneficiary PUBL:18874_11 1871 B2338.0 9-1 09/13/94 as of , 1994 (the "Agreement"), which Agreement is on file with the Beneficiary as a public record and is incorporated by reference herein; TOGETHER WITH all interests, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements, rights -of -way and rights used in connection therewith or as a means of access thereto, including, without limiting the generality of the foregoing, all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements now or hereafter erected upon the Property (including, in each instance, improvements, restorations, replacements, repairs, additions, accessions or substitutions thereto or therefor); but exclusive of all fixtures, attachments, appliances, furnishings, equipment and machinery (whether fixed or movable). TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all leases or subleases covering the Property or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash or security deposits, advance rentals, and deposits or payments of similar nature; TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase or lease the Property or any portion thereof or interest therein, and any greater estate in the Property owned or hereafter acquired; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property; TOGETHER WITH all the estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages; All of the foregoing, together with the Property, is herein referred to as the "Security". FOR THE PURPOSE OF SECURING: (a) Payment of the "Note Amount" according to the "Promissory Note" as set forth in the "Agreement" as defined herein; (b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Second Deed of Trust following a breach of Trustor's obligation PUBL:18874_111871B2338.0 9-2 09/13/94 to advance said sums and the expiration of any applicable cure period and upon five (5) business days notice to the Trustor, with interest thereon as provided herein; (c) Payment of such additional sums and interest thereon which may hereafter be loaned to Trustor, or its successors or assigns, by Beneficiary, when evidenced by a promissory note or notes or other documents reciting that they are secured by this Second Deed of Trust; and (d) Performance of every obligation, covenant or agreement of Trustor contained herein or the Agreement (and any amendments thereto). ARTICLE I DEFINITIONS 1. "-Agreement" of "DDA" means that certain Disposition and Development Agreement entered into by the Developer and the Beneficiary hereof, dated ; said Agreement (a copy of which is on file with the Beneficiary at the address stated above, and including all of its attachments) is incorporated herein by reference. 2. "Developer" and "Improvements" are defined in the Agreement. 3. "Expiration Date" means the expiration date of the Redevelopment Plan. 4. "Mortgage" means any permanent or long-term loan, or any other financing device (including without limitation deeds of trust) the proceeds of which are used in the purchase of the Improvements, which loan is secured by a security financing interest in the Trustor's interest in the Improvements; 5. "Property" means the property together with all additions, improvements, restorations and replacements thereof. 6. "Standards" means those standards of construction and operation characteristic of single family residential housing of size, character, and quality similar to the Project. 7. "Trustor" means , and each of its transferees and successors in interest. Where an obligation is created herein binding upon Trustor, the obligation shall also apply to and bind any transferees or successors in interest. Where the terms of this Second Deed of Trust have the effect of creating an obligation of the Trustor and a transferee, such obligation shall be deemed to be a joint and several obligation of the Trustor and such transferee. Unless the context clearly otherwise requires, any capitalized term used herein and not defined herein shall have the meaning given to it under the Agreement (and any amendments thereto). PUBL:18874_111871B2338.0 9-3 09/13/94 ARTICLE II CERTIFICATE OF COMPLETION UPON PAYMENT; GRANTING OF EASEMENTS Section 2.1 Maintenance and Modification of the Property by Trustor. The Trustor agrees that at all times prior to the Expiration Date, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Property or cause the Property to be maintained, preserved and kept in a condition substantially similar to other single-family housing projects similar in size, character, and quality to the Project consisting only of those uses allowed by the Agreement. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Property. Section 2.2 Granting of Easements. Trustor may grant easements, licenses, rights -of -way or other similar rights or privileges in the nature of easements with respect to any property or rights included in the Security with the prior written approval of the Beneficiary, which approval shall not be unreasonably withheld. ARTICLE III TAXES AND INSURANCE; ADVANCES Section 3.1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, prior to delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings. With respect to special assessments or other similar governmental charges, Trustor shall pay such amount in whole or in installments over a period of years. In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay any such item within seven (7) business days of the earlier of the receipt or mailing of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted under Section 1(2) of Article XV of the California Constitution, shall become an additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor hereby agrees to pay all such amounts. Section 3.2 Provisions Respecting Insurance. (a) Trustor agrees to provide insurance covering one hundred percent (100%) of the replacement cost of all insurable items within the Property in the event of fire, lightning, debris removal, windstorm, flood, vandalism, malicious mischief, theft, mysterious disappearance and PU13L:18874_11187JB2338.0 9-4 09/13/94 hazards, casualties and contingencies as are normally and usually covered by all-risk policies in effect in the locality where the Property is situated. (b) Trustor agrees to carry or cause to be carried a comprehensive general liability insurance with respect to the Property with limits of not less than One Hundred Thousand Dollars ($100,000) for each occurrence combined single -limit bodily injury and property damage. (c) All such insurance policies and coverages (i) shall be maintained at Trustor's sole cost and expense so long as any part of the amounts secured by this Second Deed of Trust have not been paid, (ii) shall be with insurers of recognized responsibility, and in form and substance satisfactory to the Beneficiary, (iii) shall name Beneficiary as additional insured, and (iv) shall contain a provision to the effect that the insurer shall not cancel the policy or modify it materially and adversely to the interests of Beneficiary without first giving at least thirty (30) days' prior written notice thereof. Certificates of insurance for all of the above insurance policies, showing the same to be in full force and effect, shall be delivered to the Beneficiary upon demand therefor at any time prior to the Expiration Date. Section 3.3 Advances. In the event the Trustor shall fail to maintain the full insurance coverage required by this Second Deed of Trust or shall fail to keep the Property in good repair and operating condition, the Beneficiary may (but shall be under no obligation to) take out the required policies of insurance and pay the premium on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and, provided that the Beneficiary provides five (5) business days' notice to the Trustor all amounts so advanced therefor by the Beneficiary shall become an additional obligation of the Trustor to the Beneficiary (together with interest as set forth below) and shall be secured hereby, which amounts the Trustor agrees to pay on demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. ARTICLE IV DAMAGE, DESTRUCTION OR CONDEMNATION Section 4.1 DamaQe and Destruction. If, prior to the Expiration Date, the Property or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casualty, the Trustor shall (a) cause any insurance proceeds arising from insurance referred to in Section 3.2 hereof and any other coverage acquired by the Trustor to be used to promptly rebuild and replace the Property, and (b) repair and replace the Property as necessary to bring the Property into conformity with the Standards; provided that such covenants shall be subordinated to the provisions of all senior obligations to which this Second Deed of Trust is subordinate. Section 4.2 Condemnation. Subject to the provisions of senior obligations to which this Second Deed of Trust is subordinate, if title to or any interest in or the temporary use of the Property or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, including any proceeding or purchase in lieu thereof, the proceeds as a result of such PUBL:18874_11 1871 B2338.0 9_5 09/13/94 taking shall be paid as provided by the law of the State of California to all persons or entities as their interests appear of record. ARTICLE V REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE TRUSTOR Section 5.1 Defense of the Title. The Trustor covenants that it is lawfully seized and possessed of title in fee simple to the Property, that it has good right to sell, convey or otherwise transfer or encumber the same, and that the Trustor, for itself and its successors and assigns, warrants and will forever defend the right and title to the foregoing described and conveyed property unto the Beneficiary, its successors and assigns, against the claims of all persons whomsoever, excepting only encumbrances approved by the Beneficiary. Section 5.2 Inspection of the Project. The Trustor covenants and agrees that at any and all reasonable times and upon reasonable notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Property. ARTICLE VI AGREEMENTS AFFECTING THE PROPERTY; FURTHER ASSURANCES Section 6.1 Other Agreements Affecting Property. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Agreement or any other agreement of any nature whatsoever now or hereafter involving or affecting the Property or any part thereof. Section 6.2 Acceleration of Maturity. If Trustor shall sell, or alienate the Property, or any part thereof, or any interest therein, or shall be divested of Trustor's title or any interest therein in any manner, whether voluntarily or involuntarily, without the prior written consent of Beneficiary, or if default is made in the payment of any principal payable under the secured Note or in the performance of the covenants or agreements hereof, or any of them, Beneficiary shall have the right at its option to declare any indebtedness or obligations secured hereby, irrespective of the maturity date specified in the Note evidencing the same, immediately due and payable. Section 6.3 Further Assurances, After Acquired Property. At any time, and from time to time, upon request by the Beneficiary, the Trustor shall make, execute and deliver, or cause to be made, executed and delivered, to the Beneficiary and, where appropriate, cause to be recorded and/or filed, and from time to time thereafter to be recorded and/or filed, and from time to time thereafter to be re -recorded and/or refiled, at such time and in such offices and places as shall be deemed desirable by the Beneficiary, any and all such other and further deeds of trust, security agreements, financing statements respecting personal property, instruments of further assurance, certificates and other documents as may, in the opinion of the Beneficiary, be necessary or PUBL:18874_111871B2338.0 9_6 09/13/94 desirable in order to effectuate, complete or perfect, or to continue and preserve, (a) the obligations of the Trustor under this Second Deed of Trust, and (b) the lien of this Second Deed of Trust as a lien prior to all liens except those obligations which shall be senior obligations pursuant to the provisions of this Second Deed of Trust. Upon any failure by the Trustor to do so, the Beneficiary may make, execute, record, file re-record and/or refile any and all such deeds of trust, security agreements, instruments, certificates and documents for and in the name of the Trustor, and the Trustor hereby irrevocably appoints the Beneficiary the agent and attorney -in -fact of the Trustor to do so. The lien hereof shall automatically attach, without further act, to all after -acquired property deemed to be part of the Security as defined -herein. Section 6.4 Agreement to Pay Attorney's Fees and Expenses. In the event of an Event of Default hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Second Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable- expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall bear interest from the date such expenses are incurred at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. Section 6.5 Subrogation: Payment of Claims. Provided that the Beneficiary gives notice of at least five (5) business days to the Trustor, the Beneficiary shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid by the Beneficiary pursuant to the provisions hereof. If permitted in the Mortgage, the Beneficiary shall have the right to pay and discharge the obligations secured by the Mortgage. Section 6.6 Transfer. No sale, transfer, lease, pledge, encumbrance, creation of a security interest in, or other hypothecation of the Security shall relieve the Trustor from primary liability under this Second Deed of Trust or the Agreement. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events of Default Defined. The occurrence of any failure of the Trustor to perform any act, obligation or promise of the Trustor made under this Second Deed of Trust and the continuation of said failure for a period of sixty (60) business days after written notice specifying such_ failure and requesting that it be remedied shall have been given to Trustor from the Beneficiary, shall be an Event of Default under this Second Deed of Trust. Section 7.2 The Beneficiary's Right to Enter and Take Possession. If an Event of Default shall have occurred and be continuing, the Beneficiary may: (a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Property and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Property, or part thereof or interest therein, PUBL:18874_111871B2338.0 9_7 09/13/94 increase the income therefrom or protect the Security hereof and, with or without taking possession of the Property, sue for or otherwise collect the rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys' fees, upon any amounts owed to Beneficiary, all in such order as Beneficiary may determine. The entering upon and taking possession of the Property, the collection of such rents, issues and profits and the application thereof, as aforesaid, shall not cure or waive any Default or notice of Default hereunder or invalidate any act done in response to such Default or pursuant to such notice of Default and, notwithstanding the continuance in possession of the Property or the collection, receipt and application of rents, issues or.profits, Beneficiary shall be entitled to exercise every right provided for in this Second Deed of Trust, the Agreement or by law upon occurrence of any Event of Default, including the right to exercise the power of sale. A copy of any Notice of Default and a copy of any Notice of Sale hereunder shall be mailed to Trustor at its address herein given; _ (b) Commence an action to foreclose this Second Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor's interest in the property to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of the County in which the Property is located; or - (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to the Property, including any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Section 7.4 Foreclosure By Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit with Trustee this Second Deed of Trust which is secured hereby, and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. (a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and after Notice of Sale having been given as required by law, sell the Property, at the time and place of sale fixed by it in said Notice of Sale, either as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers. PURL: 18874_11 1871 B2338.0 9_8 09/13/94 (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of.evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of all sums then secured hereby and the remainder, if any, to the person or persons legally entitled thereto. (c) Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Section 7.5 Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under Security, and without regard to the then value of the Property or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor hereby irrevocably- consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Property, unless such receivership is sooner terminated. Section 7.6 Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Second Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. Section 7.7 No Waiver. (a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or of any breach by the Trustor in the performance of the obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights powers or remedies consequent on any breach or Default by the Trustor. (b) If the Beneficiary (i) takes other or additional security, (ii) waives or does not exercise any right granted herein, or in the Agreement, (iii) certifies completion of any part of the Security from the lien of this Second Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements of this Second Deed of Trust or the Agreement, (iv) consents to the filing of any map, plat or replat affecting the Security, (v) consents to the granting of any easement or other right affecting the Security, or (vi) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not discharge, modify, PUBL:18874_111871B2338.0 9_9 09/13/94 change or affect the original liability under this Second Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety or guarantor, nor shall any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in the event of any Default then made or of any subsequent Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Property, the Beneficiary, without notice, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Security (or a part thereof) or the indebtedness secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the Trustor and without in any way releasing or discharging any liabilities, obligations or undertakings of the Trustor. Section 7.8 Suits to Protect the Security. The Beneficiary shall have power (upon ninety (90) days- notice to the Trustor) to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security (and the rights of the Beneficiary as secured by this Second Deed of Trust) by any acts which may be unlawful or any violation of this Second Deed of Trust, (b) preserve or protect its interest (as described in this Second Deed of Trust) in the Security and in the rents, issues, profits and revenues arising therefrom, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the security thereunder or be prejudicial to the interests of the Beneficiary. Section 7.9 Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings for any amount which may become due and payable by the Trustor hereunder after such date. ARTICLE VIII SUBORDINATION Section 8.1 Subordination. The Beneficiary agrees to execute documents reasonably satisfactory to its counsel to subordinate the lien of this Second Deed of Trust, provided no Notice of Default under its terms appears of record, to the following: (a) Purchase money financing for the Property within the limitations set forth in the DDA; and (b) Easements in favor of public agencies or public utilities typically conveyed in connection with similar developments. PUEL:18874_111871 B2338.0 9-10 09/13/94 Section 8.2 Description of Loans. Any loan to which this Second Deed of Trust is to be.subordinated shall be evidenced by a promissory note, which shall not be limited with respect to any terms (except as may be otherwise provided by Section 8.1 hereof), including the principal amount thereof, or the rate of interest thereon; provided, however, that any such loan or loans shall be subject to the approval of Beneficiary. Section 8.3 Purpose and Use of Loans. Any loan or loans to which this Second Deed of Trust shall be subordinated may be used for any purposes in connection with the improvement of the Property. Any lender in making any disbursement pursuant to any such loan or loans shall be under no obligation or duty to see to the application or use of such proceeds for the purposes provided herein, and any application or use of such proceeds for purposes other than those provided for in this Article shall not defeat the subordination herein made in whole or in part. Section 8.4 Execution of Subordination Agreement. Beneficiary agrees, upon request, provided that Trustor is not in default under this Second Deed of Trust or the Agreement, to execute a Subordination Agreement, or agreements, in form reasonably acceptable to the Beneficiary, in favor of any loan or loans to which this Second Deed of Trust is to be subordinated, and to deliver same to Trustor for recordation in order to confirm of record the subordination provided in this Second Deed of Trust. In the event of express conflict, the terms of any Subordination Agreement executed by Beneficiary shall_ prevail over the terms regarding such subordination provided herein. ARTICLE IX MISCELLANEOUS Section 9.1 Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. Section 9.2 Trustor Waiver of Rights. Trustor hereby acknowledges that it is aware of and has the advice of counsel of its choice with respect to its rights under the Constitution of the United States, including, but not limited to, its rights arising under the Fourth, Fifth, Sixth and Fourteenth Amendments thereto, and the Constitution of the State of California. Trustor agrees that Beneficiary may exercise its rights hereunder in accordance with the provisions hereof, including, but not limited to, the exercise of the power of sale pursuant to Section 7.4 hereof, and Trustor hereby expressly waives its rights under such Constitutions with respect thereto, including, but not limited to, its rights, if any, to notice and a hearing upon the occurrence of an Event of Default hereunder; provided, however, nothing contained herein shall be deemed to be a waiver of Trustor's rights to reinstate or redeem this Second Deed of Trust in accordance with applicable law. Trustor further waives to the extent permitted by law, (a) the benefit of all laws now existing or that may hereafter be enacted providing for any appraisement before sale of any portion of the Security, (b) all rights of valuation, appraisement, stay of execution, and marshaling in the event of foreclosure of the liens hereby created, and (c) all rights and remedies which Trustor may have or be able to assert by reason of the laws of the State of California pertaining to the rights and remedies of sureties. PURL:18874_111871 B2338.0 9-11 09/13/94 Section 9.3 Reconveyance by Trustee. Upon surrender of this Second Deed of Trust to .Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey to Trustor, or to the person or persons legally entitled thereto, without warranty, any portion of the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or person legally entitled thereto." Section 9.4 Notices. Whenever Beneficiary, Trustor or Trustee shall desire to give or serve any notice, demand, request or other communication with respect to this Second. Deed of Trust, each such notice, demand, request, or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by registered or certified mail, postage prepaid, return receipts requested, or by telegram, addressed to the address set forth in the first paragraph of this Second Deed of Trust. Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change. _ Section 9.5 Acceptance by Trustee. Trustee accepts this Trust when this Second Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Section 9.6 Captions. The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Second Deed of Trust. Section 9.7 Invalidity of Certain Provisions. Every provision of this Second Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. Section 9.8 No Merger. If title to the Property shall become vested in the Beneficiary, this Second Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary under this Deed of Trust. In addition, upon foreclosure under this Second Deed of Trust pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Security shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice of termination to such tenant or subtenant. Section 9.9 Governin2 Law. This Second Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. Section 9.10 Gender and Number. In this Second Deed of Trust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires. PUBL:18874_1 1 187J B2338.0 9-12 09/13/94 IN WITNESS WHEREOF, Trustor has executed this Second Deed of Trust as of the day and year first above written. Trustor PUBL:18874_111871 B2338.0 9-13 09/13/94 EXHIBIT "A" TO ATTACHMENT NO. 9 LEGAL DESCRIPTION OF PROPERTY0 [To Be Inserted] PUBL:18874_111871 B2338.0 9-14 09/13/94 ATTACHMENT NO. 10 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO LA QUINTA REDEVELOPMENT AGENCY 78-105 Calle Estado La Quinta, California 92253 Space above for recorder. This Agreement is recorded at the request _ and for the benefit of the Agency and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. LA QUINTA REDEVELOPMENT AGENCY By: Its: Dated: , 1994 DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS THIS DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS is made this day of , 1994, by BUILDING HORIZONS a California nonprofit public benefit corporation, as declarant (the "Developer"), with reference to the following: A. The Developer is fee owner of record of that certain real property located in the City of La Quinta, County of Riverside, State of California legally described in the attached Exhibit "A" (the "Property"), which is comprised of U parcels ("Parcels"). The Property comprises the Site which is the subject of an agreement, further described herein, for the development, operation and maintenance of the Property for moderate -income housing. The Property is to be used for the development of single-family housing units and subsequent occupancy as a primary residence by households meeting certain income qualifications, all in conforming with this Declaration and a disposition and Development Agreement between the Developer and the Agency dated as of , a copy of which is on file with the Agency as a public record (the "DDA"). PUBL:18874_11 1871 B2338.0 10-1 09/13/94 B. The Property is within the Redevelopment Project Area (the "Project") in the City of La Quinta and is subject to the provisions of the Redevelopment Plan for the Project adopted by Ordinance No. on , 19= by the City Council of the City of La Quinta. C. The La Quinta Redevelopment Agency ("Agency") and the Developer have entered into a Disposition and Development Agreement dated as of concerning the development and use of the Property (the "DDA") which DDA is on file with the Agency as a public record and is incorporated herein by reference and which DDA provides for the execution and recordation of this document. D. Developer deems it desirable to impose a general plan for the use and maintenance of the Property, and to adopt and establish covenants, conditions and restrictions upon the Property for the purpose of enforcing and protecting the value, desirability and attractiveness thereof. E. Developer will convey title to all portions of said Property (including each Parcel) subject to certain protective covenants, conditions, and restrictions hereinafter set forth. NOW, THEREFORE, Declarant hereby covenants, agrees and declares that all of the Property shall be held, sold, conveyed, hypothecated, encumbered, used, occupied and improved, subject to the following covenants, conditions, restrictions and easements which are hereby declared to be for the benefit of the whole Property. These covenants, conditions, restrictions and easements shall run with the Property and shall be binding on all parties having or acquiring any right, title or interest in the Property or any part thereof (including each Parcel) and shall inure to the benefit of each owner thereof and their successors and assigns, and are imposed upon the Property and every part thereof (including each Parcel) as a servitude in favor of each and every Parcel as the dominant tenement or tenements. NOW, THEREFORE, THE DEVELOPER AGREES AND COVENANTS AS FOLLOWS: 1. Use Restrictions. The Property shall be occupied and used as follows: a. The single-family home on each Parcel ("Unit") shall be used only for private dwelling purposes and for no other purposes. The Units shall not be leased, subleased, rented or otherwise; rather, each Unit shall be the principal dwelling of the owner thereof and his family. Occupancy of each Unit shall be limited to a maximum of seven persons for a three -bedroom unit. b. No sign of any kind shall be displayed to the public view on or from any Unit without the prior approval of the Agency and shall conform to the City Code, except one (1) "for sale" sign on any Parcel. All signs otherwise permitted under this section shall conform with all ordinances and other regulations of the City. -c. No owner of any Parcel, including for purposes of this agreement the Developer, ("Owner") shall permit or suffer anything to be done or kept upon such Parcel which will increase the rate of insurance on the Unit or on the contents thereof, or impair the structural integrity thereof or which will obstruct or interfere with the rights of adjacent property owners, PUBL:18874_111871 B2338.0 10.2 09/13/94 or annoy them by unreasonable noises or otherwise, nor shall any Owner commit or permit any nuisance on such Owner's Parcel or fail to keep such Owner's Parcel free of rubbish, clippings and trash or commit or suffer any illegal act to be committed thereon. d. There shall be no structural alteration, construction or removal of any structure on any Parcel (other than repairs or rebuilding permitted herein) without the approval of the appropriate City departments or the Agency and in conformance with the City Code. e. No Owner shall permit the parking, storing or keeping of any vehicle on a Parcel except on the driveway or within the garage of the Parcel. No Owner shall permit the parking, storing or keeping of any large commercial type vehicle (dump truck, cement mixer truck, oil or gas truck, etc.), or any recreational vehicle (camper unit, camper shell detached from a private passenger vehicle, motor home, trailer,- boat trailer, mobile home or other similar vehicle), boats over twenty (20) feet in length or any vehicle other than a private passenger vehicle upon any portion of the Parcel owner by such -Owner, including the driveway or garage. No Owner shall -permit major repairs or major restorations of any motor vehicle, boat, trailer, aircraft or other vehicle to be conducted upon any portion of the Parcel owned by such Owner, except for emergency repairs thereto and then only to the extent necessary to enable movement thereof to a proper repair facility. No inoperable vehicle shall be stored or kept anywhere on a Parcel. The Agency shall have the right to remove, at the Owner's expense, any vehicle parked, stored or kept in violation of the provisions of this Declaration. In addition, all provisions of the La Quinta Municipal Code, including amendments thereto, shall apply. 2. Controlled Substances. No alcoholic beverages shall be permitted to be consumed in public view, and controlled substances shall not be used, anywhere on or about any Parcel. 3. Maintenance. The exterior areas of each Parcel shall be kept free of rubbish, debris and other unsightly or unsanitary materials. Each Owner shall have the affirmative obligation to prevent the occurrence on the Parcel owned by such Owner of what might be considered a fire hazard or a condition dangerous to the public health, safety and general welfare; or constitute an unsightly appearance or otherwise detract from the aesthetic and property values of neighboring properties. The following minimum performance standards for the maintenance of the Unit and landscaping on each Parcel shall be adhered to by each Owner: (1) Landscaping on the Property shall be absent of the following: (a) Lawns with grasses in excess of six (6) inches in height. (b) Untrimmed hedges. (c) Dying trees, shrubbery, lawns and other plant life from lack of water or other necessary maintenance. (d) Trees and shrubbery grown uncontrolled without proper pruning. PUBL:18874_111871 B2338.0 10-3 09/13/94 (e) Vegetation so overgrown as to be likely to harbor rats or vermin. (f) Dead, decayed or diseased trees, weeds and other vegetation. (g) Inoperative irrigation system(s). (2) Yard areas shall be maintained so as to be absent of the, following: (a) Broken or discarded furniture, appliances and other household equipment stored in yard areas for periods exceeding one (1_) week. (b) Packing boxes, lumber, trash, dirt and other debris stored -- in yards for unreasonable periods in areas visible from public property or neighboring properties. (c) Unscreened trash cans, bins or containers stored for unreasonable periods in areas visible from public streets and common areas. (3) No building, wall or fence may be left in an unmaintained condition so that any of the following exist: (a) Buildings abandoned, boarded up, partially destroyed or left unreasonably in a state of partial construction. (a) Unpainted buildings or buildings with peeling paint in such a condition as to: i. Cause dry rot, warping and termite infestation; or ii. Constitute an unsightly appearance that detracts from the aesthetic or property values of neighboring properties. (c) Broken windows, constituting hazardous conditions and/or inviting trespassers and malicious mischief. (d) Damaged garage doors that may become inoperative or unsafe to operate. (e) Graffiti remaining on any portion of the property for a period exceeding ten (10) days. PUBL: 18874_1 11871 B2338.0 10-4 09/13/94 (f) Building interiors and exteriors shall be maintained to meet standards of similar residential property in the City of La Quinta. (4) No more than two (2) domesticated pets of conventional varieties shall be permitted per Unit; farm animals shall not be permitted. 4. City's Right of Review and Enforcement. The City of La Quinta ("City") and the Agency shall be made a party to this Declaration for the limited purpose as specified herein as follows: a. Changes or amendments to this Declaration must be submitted for City/Agency review and approval. b. In the event of inaction by any Owner, the City and Agency are hereby granted expedient power to enforce all provisions of this Declaration including, but not limited to, the maintenance of the Improvements and all yards, buildings and landscaping areas within the Site. C. The City and Agency are hereby granted the express power to enforce all laws and ordinances of the State of California and/or the City of La Quinta on yards, structures, private parking areas within the Property. Nothing within this Declaration, however, shall be construed as imposing an obligation or requiring the City or Agency to enforce any provision thereof. d. This Declaration shall not be amended to remove, or to result in the effective removal, of the restrictions on the Property set forth in Sections 1, 2, 3 and 4 hereof. As to all other types of amendments, the City and the Agency shall be given prior written notice of any proposed amendment to this Declaration. Such notice shall be given by mailing a copy of the precise language of the proposed amendment to the City of La Quinta, c/o City Clerk, together with a letter of transmittal explaining the proposed change in general terms. The City and the Agency shall have an opportunity to review and comment upon the proposed amendment for a period of not less than forty-five (45) days prior to the effective date of any such proposed amendment. If the City or Agency fail to respond within forty-five (45) days, the proposed change(s) and amendment(s) shall be deemed disapproved, unless that time period is extended by mutual agreement of all parties. 5. Miscellaneous Provisions. a. If any provision of this Declaration or portion thereof, or the application to any person or circumstances, shall to any extent be held invalid, inoperative or unenforceable, the remainder of this Declaration, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Declaration; and each provision of this Declaration shall be valid and enforceable to the fullest extent permitted by law. PUBL:18874_11 1871 B2338.0 10-5 09/13/94 b. This Declaration shall be construed in accordance with the laws of the State of California. C. This Declaration shall be binding upon and inure to the benefit of the successors and assigns of the Developer. d. In the event action is instituted to enforce any of the provisions of this Declaration, the prevailing party in such action shall be entitled to recover from the other party thereto as part of the judgment, reasonable attorney's fees and costs. 6. The covenants and agreements established in this Declaration shall, without regard to technical classification and designation, be binding on each Owner and any successor in interest to the Property, or any part thereof (including each Parcel), for the benefit of and in favor of the Agency, its successor and assigns, and the City of La Quinta, and shall remain in effect for fifty (50) years from the date of the recording of this_ document). IN WITNESS WHEREOF, Owner has executed this instrument the day and year first hereinabove written. Dated: Dated: BUILDING HORIZONS, INC., a California corporation By: By: "OWNER" PUBL:18874_111871 B2338.0 10.6 09/13/94 STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the President, and , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Secretary of the corporation that executed the within instrument and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its Board of Directors. WITNESS my hand and official seal. (SEAL) PUBL: 18874_1 11871 B2338.0 ID_'] 09/13/94 EXHIBIT "A" TO ATTACHMENT NO. 10 THE PROPERTY (To Be Inserted) PUBL:18874_11187182338.0 10.8 09/ 13/94 ATTACHMENT NO. 11 CERTIFICATE OF COMPLETION RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: LA QUINTA REDEVELOPMENT AGENCY 78-105 Calle Estado La Quinta, California 92253 Attn: Executive Director Space above for Recorder's Use. CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT WHEREAS, by an Disposition and Development Agreement dated , 1994, by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (hereinafter referred to as the "Agency") and BUILDING HORIZONS, INC. (collectively referred to as the "Developer"), the Developer has constructed improvements upon the real property (the "Site"), legally described on the attached Exhibit A, by constructing or causing to be constructed the improvements thereon according to the terms and conditions of said Disposition and Development Agreement (the "DDA"); and WHEREAS, pursuant to Section 314 of the DDA, promptly after completion of the Improvements the Agency shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer; and WHEREAS, the issuance by the Agency of the Certificate of Completion shall be conclusive evidence that the construction of the Improvements conforms to the DDA; and WHEREAS, the Developer has requested that the Agency furnish the Developer with the Certificate of Completion; and WHEREAS, the Agency has conclusively determined that the construction of the Improvements conforms to the DDA; NOW THEREFORE: 1. As provided in the DDA, the Agency does hereby certify that the construction of the Improvements required to be constructed on the Site described in Exhibit "A" hereto has been satisfactorily performed and completed, and that such development and construction work complies with the DDA. PUBL:18874_111871B2338.0 1 1-1 09/13/94 2. This Certificate of Completion does not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a mortgage security money loaned to finance the work of construction of improvements and development of the Site, or any part thereof. This Certificate of Completion is not a notice of completion as referred to in Section 3093 of the California Civil Code. 3. This Certificate of Completion does not denote completion of any work required to be completed, other than on the Site. 4. The Deed of Trust recorded as document no. among the official land records of the County of Riverside and those Conditions, Covenants and Restrictions recorded as Document No. among the official land records of the County of Riverside shall remain in full force and effect. IN WITNESS WHEREOF, the Agency has executed this Certificate as of this day of LA QUINTA REDEVELOPMENT AGENCY By: Executive Director ATTEST: Agency Secretary PURL: 18874_1 11871 B2338.0 1 1-2 09/13/94 STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On this day of , 1994, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as the Executive Director of the LA QUINTA REDEVELOPMENT AGENCY and acknowledged to me that the LA QUINTA REDEVELOPMENT AGENCY executed it. Signature of Notary Public Name typed or printed (SEAL) PUBL:18874_1 1 187 1 B2338.0 11-3 09/13/94 ATTACHMENT NO. 12 MAXIMUM SALES PRICE ILLUSTRATION THIS IS A HYPOTHETICAL EXAMPLE Illustration of the calculation of the maximum Sales Price to be paid by a purchaser of a Restricted Unit: Assumptions 1. Family size = 4 Persons 2. Pursuant -to 25 Cal. Code of Regulations Section 6932, the maximum income level for a Person or Family of Low or Moderate Income is 120% of area medium income. For a family size of 4 in Riverside County that income level, as of , is $ 3. Interest Rate = 10 % 4. Property taxes and assessments (per month) = $85.00 5. Hazard insurance (per month) = $40.00 6. Downpayment on house = 10 % of Sales Price. 7. The first mortgage loan financing the purchase of the Restricted Unit is a 30 year, fully amortizing loan. 8. No other mortgage financing is provided for the purchase of the Restricted Unit. Pursuant to the Health & Safety Code Section 33413(b)(2) and Section 401 of the Disposition and Development Agreement, Affordable Housing Cost shall not exceed _% of gross income. CALCULATION OF SALES PRICE: I. Calculate monthly Affordable Housing Cost: $ [Maximum income of Family of Low ncome adjusted for family size (4 persons)] X [Affordable Housing Cost cannot exceed _% of income] divided by 12 [to calculate the maximum monthly Affordable Housing Cost] PUBL:18874_111871 B2338.0 12-1 09/13/94 $ [As this hypothetical illustrates, no Family of Low or Moderate Income with a family size of 4 shall spend more than $ per month, as of the date hereof, on the sum of the items listed in Purchase Housing Cost.] II. Calculation of maximum amount to be spent on principal and interest of mortgage loan and loan insurance fees, if any. $ [Maximum monthly Affordable Housing Cost] — 85.00 [Property taxes and assessments (per month)] — 40.00 [Hazard insurance (per month)] $ [Maximum amount (per month) to be spent on principal and interest on mortgage loan and loan insurance fees] III. Calculation of Sales Price: THIS HYPOTHETICAL ASSUMES NO MORTGAGE FINANCING OTHER THAN A FIRST MORTGAGE - If additional financing is available (such as through a deferred seller-carryback note), and provided that such additional financing is expressly permitted by the Disposition and Development Agreement between the La Quinta Redevelopment Agency (the "Agency") and Building Horizons, Inc. dated as of (a copy of which is on file with the Agency as a public record) and Building Horizons, Inc. the Sales Price will increase by the amount of that deferred financing. This additional financing must be deferred in order not to increase monthly Purchase Housing Cost expenditures. t 1. At a 10% interest rate, a $ monthly principal and interest payment can carry a 30-year mortgage loan of $ 2. (a) '[Mortgage loan] _ (1- downpayment %) times the Sales Price (b) loan = (1-.1) times the Sales Price I 3. Solve for the Sales Price: $ /(1-.1) = Sales Price Sales Price = $ i PUBL:18874_111871 B2338.0 12-2 09/13/94 ATTACHMENT NO. 13 CERTIFICATE OF PROPOSED TRANSFEREE THIS FORM MUST BE DELIVERED TO THE OWNER BEFORE PROCEEDING WITH ANY TRANSFER OF THE PROPERTY. , 19_ 1. The Proposed Transferee is Names: Current Address: Telephone Number: 2. The address of the property which the proposed transferee desires to purchase is (the "Property"), which was built in the La Quinta Redevelopment Project Area No. 1. 3. The proposed transferee represents, warrants and covenants the following: (a) The proposed transferee has never previously owned a single-family home. (b) The Property will be the principal residence of the proposed transferee. (c) The combined maximum annual income in the current year for all household members of the proposed transferee is $ (This figure must reflect income from all sources.) (d) The proposed transferee will deliver to the Agency a signed financial statement on a form acceptable to the Agency. 4. The proposed transferee's household consists of the following persons who will reside in the Property: Adults (18 or over) - [name of each]: Minors (under 18) - [name of each]: PUBL:18874_111871 B2338.0 13-1 09/13/94 5. The proposed transferee must submit to the Owner, on a form available form the Owner, an income certification so the Owner may determine if the proposed transferee is an Eligible Person or Family. 6. A true and correct copy of the proposed transferee's most recent tax return to the U.S. Internal Revenue Service is attached hereto. 7. The terms of the proposed transfer are: (a) Sales price of $ . This sales price is based on the maximum price at which the Purchase Housing Cost of the Proposed Transferee would not exceed Affordable Housing Cost. -The calculation of the Sales Price under this section is illustrated in Attachment No. 10 to the Disposition and Development Agreement. IN ORDER TO ANSWER QUESTION 2(a) YOU MUST CALCULATE THE PROPOSED SALES PRICE BASED ON AFFORDABLE HOUSING COST, TAKING INTO CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF PURCHASE HOUSING COST. (b) Price of any personal property being sold by the Owner to the proposed transferee: $ (if none, so state) (c) The price of $ to be paid by the proposed transferee for any services of Owner. (If no, so state). (d) All other amounts of money or other consideration, if any, concerning the Property or any other matter to be paid by the proposed transferee to the Owner: $ . (If none, so state). (e) Sources of payment of sales price: Sales price $ Cash down payment $ 1st loan $ 2nd loan $ Other (describe) $ Total PUEL:18874_11 1871 B2338.0 13_2 09/13/94 (f) The financing obtained by the proposed transferee to purchase the Property is as follows: 1st Loan: Loan amount: $ Monthly payments: $ Interest rate if variable interest, describe adjustment mechanism: Due date: Balloon payment amount: Points and fees: Lender: Lender's address: 2nd Loan: Loan amount: Monthly payments: $ Interest rate if variable interest, describe adjustment mechanism: Due date: Balloon payment amount: Points and fees: Lender: Lender's address: PURL: 18874_11 1871 B2338.0 13-3 09/13/94 Other Loans: (describe, if none, so state) (g) The monthly Purchase Housing Cost to be paid by the proposed transferee: 1st loan monthly payment: $ 2nd loan monthly payment: $ Other loans monthly payment: $ Taxes and assessments (1 / 12 of yearly taxes and assessments): $ Insurance (1/12 of yearly $ premium): Homeowner's dues: $ Total: $ 8. A true and correct copy of the purchase and sale or other agreement between the owner and the proposed transferee is attached hereto. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. PROPOSED TRANSFEREE: Date signature print name street address telephone City State Zip Code signature print name PUBL:18874_111871 B2338.0 13-4 09/13/94 Developer's Certification Based on the Proposed Transferee's Certificate, above, and all documents attached hereto, Developer hereby certifies that: (1) Proposed Transferee is an Eligible Person or Family; and, (2) The monthly Purchase Housing Cost to be paid by the Proposed Transferee shall not exceed the monthly Affordable Housing Cost. [Capitalized terms used above are defined in the Disposition and Development Agreement to which this certificate is attached.] OWNER: [Name] Date: PUBL:18874_1 1 1871B2338.0 13_5 09/ 13/94 ATTACHMENT NO. 14 NOTICE OF INTENT TO TRANSFER NOTICE OF INTENT TO TRANSFER MUST BE DELIVERED TO THE LA QUINTA REDEVELOPMENT AGENCY PRIOR TO PROCEEDING WITH ANY TRANSFER OF THE PROPERTY. From: To: La Quinta Redevelopment Agency c/o City of La Quinta Housing Department La Quinta, CA ("Owner") Attn: Development Officer Redevelopment Project Area Re: (street address) La Quinta, California (the "Property") Owner desires to [sell, convey, transfer by inheritance or devise, leasee, gift, otherwise transfer] (circle appropriate words) the Property. If the Agency has a program to help locate an Eligible Family, does the Owner want the Agency to help look for an Eligible Person or or Family to buy the Property? Yes No Date Signature of Owner day time telephone number of owner Signature of Owner (—.) day time telephone number of owner FUEL: 18874_11 1871 B2338.0 14-1 09/13/94 ATTACHMENT NO. 15 REQUEST FOR APPROVAL OF PROPOSED TRANSFEREE THIS FORM MUST BE DELIVERED TO THE LA QUINTA REDEVELOPMENT AGENCY BEFORE PROCEEDING WITH ANY TRANSFER OF THE PROPERTY , 19= La Quinta Redevelopment Agency c/o City of La Quinta Department of Housing La Quinta, CA Attn: Development Officer Redevelopment Project Area Re: Request for Approval of Proposed Transferee To Whom It May Concern: The undersigned is the owner of real property in La Quinta, located at (the "Property"), which was built within the Redevelopment Project Area. The Owner now desires to transfer the Property and by this letter is requesting the City of La Quinta to approve the proposed transferee. 1. The Proposed Transferee is Name: Current Address: Telephone Number: PUBL:18874_111871B2338.0 15-1 09/13/94 2. The terms of the proposed transfer are: (a) Sales price of $ . This sales price is based on the lesser of (i) Fair market value; or (ii) The maximum price at which the Purchase Housing Cost of the Proposed Transferee would not exceed Affordable Housing Cost. The calculation of the Sales Price under this subsection (ii) is illustrated in Attachment No. 10 to the Disposition and Development Agreement. IN ORDER TO ANSWER QUESTION 2(a) YOU MUST CALCULATE THE PROPOSED SALES PRICE BASE ON AFFORDABLE HOUSING COST, TAKING INTO CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF PURCHASE HOUSING COST. - - (b) Price of any personal property being sold by the owner to the proposed transferee: $ (if none, so state) (c) The price of $ to be paid by the proposed transferee for any services of Owner. (If no, so state). (d) All other amounts of money or other consideration, if any, concerning the Property or any other matter to be paid by the proposed transferee to the Owner: $ . (If none, so state). (e) Sources of payment of sales price: Sales price Cash down payment 1st loan 2nd loan Other (describe) $ Total PURL: 18874_1 11871 B2338.0 15-2 09/13/94 (f) The financing obtained by the proposed transferee to purchase the Property is as follows: lst Loan: Loan amount: $ Monthly payments: $ Interest rate if variable interest, describe adjustment mechanism: Due date: Balloon payment amount: Points and fees: Lender: Lender's address: 2nd Loan: Loan amount: $ Monthly payments: $ Interest rate if variable interest, describe adjustment mechanism: Due date: Balloon payment amount: Points and fees: Lender: Lender's address: PUBL: 18874_1 11871 B2338.0 15_3 09/13/94 Other Loans: (describe, if none, so state) (g) The monthly Purchase Housing Cost to be paid by the proposed transferee: 1st loan monthly payment: $ 2nd loan monthly payment: $ Other loans monthly payment: $ Taxes and assessments (1 / 12 of yearly taxes and assessments): $ Insurance (1 / 12 of yearly $ premium): Homeowner's dues: $ Total: $ 3. The proposed transferee represents, warrants and covenants the following: (a) The Property will be the principal residence of the proposed transferee. (b) The combined maximum annual income for all household members of the proposed transferee is $ . (This figure must include all sources of income.) (c) The proposed transferee will deliver to the Agency a signed financial statement on a form acceptable to the Agency. 4. The proposed transferee household consists of the following persons who will reside in the Property: Adults (18 or over) - [name of each]: Minors (under 18) - [name of each]: PUBL:18874_1 j 1871 B2338.0 15-4 09/13/94 5. The proposed transferee must submit to the Agency, on a form available from the Owner, an. income certification so the Agency may determine if the proposed transferee is an Eligible Person or Family. 6. A true and correct copy of the proposed transferee's most recent tax return to the U.S. Internal Revenue Service is attached hereto. 7. A true and correct copy of the purchase and sale or other agreement between the owner and the proposed transferee is attached hereto. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. OWNER: Date signature print name street address telephone City State Zip Code PROPOSED TRANSFEREE: signature print name street address telephone City State Zip Code PURL: 18874_ 111871 B2338.0 15-5 signature print name signature print name 09/13/94 ATTACHMENT NO. 16 Recording Request by: City or La Quinta, and When Recorded Return To: La Quinta Redevelopment Agency c/o City of La Quinta La Quinta Housing Department La Quinta, CA Attention: Development Officer Redevelopment Project Area ASSUMPTION AGREEMENT This Assumption Agreement is entered into by: The La Quinta Redevelopment Agency ("Agency") ("Selling Owners") ("Buying Owners") Date of Agreement: FACTS A. Selling Owners are all of the owners of property commonly known as , La Quinta, California (the "Property") and more particularly described in Exhibit A attached hereto and incorporated hereby by this reference. B. The Property is subject to the Disposition and Development Agreement between the Agency and Building Horizons, Inc., a California corporation, dated as of (the "DDA", a copy of which is on file with the Agency as a public record and is incorporated herein by reference, the Grant Deed recorded at Book Page Series M of the official land records of Riverside County (the "Grant Deed"), and that certain Second Deed of Trust recorded at Book , Page , Series No. of the official land records of Riverside County (the "Deed of Trust", and those Conditions, Covenants and Restrictions, recorded at PUBL:18874_1 1 1871B2338.0 16_1 09/13/94 Book _, Page _, Series No. of the Official Records of Riverside County (the "Restriction"). The DDA, the Deed of Trust, and the Restriction restricts the sales price that can be charged for the Property and the persons to whom the Property can be sold. C. Buying Owners desire to purchase the Property. Buying Owners understand that the Restriction will limit the purchase price they can receive when they sell the Property and will limit the people to whom they can sell the Property. D. Buying Owners are able to purchase the Property because the purchase price of the Property may be less than other similar property without Restrictions. For this reason Buying Owners desire to purchase the Property. E. In order to purchase the Property, Buying Owners must assume all obligations of the Owner under the DDA, the Deed of Trust, and the Restriction and must agree to bound by all the provisions in the Restriction. NOW THEREFORE, Buying Owners agree as follows: 1. Acknowledp-ment of Limitation on Future Sales Price. BUYING OWNERS UNDERSTAND THAT WHEN BUYING OWNERS DESIRE TO SELL OR TRANSFER THE PROPERTY THAT THE SALE PRICE CAN BE DETERMINED ONLY AT THE TIME OF THE PROPOSED TRANSFER TAKING INTO CONSIDERATION INTEREST RATES, PROPERTY TAXES AND OTHER FACTS THAT CANNOT BE PREDICTED ACCURATELY AND THAT THE SALES PRICE MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR PROPERTY THAT IS NOT ENCUMBERED WITH THE DDA, THE DEED OF TRUST, AND THE RESTRICTION. BUYING OWNERS ALSO ACKNOWLEDGE THAT ALL TIMES IN SETTING THE SALES PRICE THE PRIMARY OBJECTIVE OF THE AGENCY AND THE RESTRICTION IS TO PROVIDE HOUSING TO ELIGIBLE PERSONS OR FAMILIES AT AFFORDABLE HOUSING COST. THE SALE PRICE, WHEN BUYING OWNERS DECIDE TO SELL THE PROPERTY, WILL LIKELY BE LESS THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO RESTRICTIONS. Buyer's Initials 2. Understand the DDA, the Deed of Trust and the Restriction. Buying Owners represent that they have read the Restriction and fully understand the DDA, the Deed of Trust, and the Restriction. 3. Owner Occupancy. Buying Owners agree that they will occupy the Property as their primary residence and that they will comply with all provisions of the DDA, the Deed of Trust, and the Restriction relating to occupancy of the Property. 4. Assumption of Obligations Under the DDA the Deed of Trust and the Restriction. As a material consideration to the Agency in approving Buying Owners, Buying Owners hereby assume all obligations of the Owner (as defined in the DDA, the Deed of Trust, PUBL:18874_111871 B2338.0 16-2 09/13/94 and the Restriction), related to the Property set forth in the DDA, the Deed of Trust, and the Restriction. Buying Owners agree to be bound by all duties and obligations of the Owner in the DDA, the Deed of Trust, and the Restriction and agree to comply with all provisions thereof for the term of the DDA, the Deed of Trust, and the Restriction. Buying Owners agree as set forth above in order to have the benefit of the restricted purchase price for which the Property is offered. 5. Remedies. Upon the occurrence of an Event of Default, the Agency shall have the following remedies: (a) Specific Performance. The Agency shall have the right to bring an action for specific performance of this Agreement to require the Developer to comply with the terms and provisions of this Agreement. Developer acknowledges that it is the intention of Developer and the Agency that these provisions be specifically enforceable to maintain the supply of affordable housing for Eligible Persons and Families. _ (b) Ap12lication to Court. The Agency may apply to a court of competent jurisdiction for an injunction prohibiting a proposed Transfer in violation of this Agreement, for a declaration that a Transfer is void or for any other such relief as may be appropriate. (c) All Remedies Available and Cumulative. Upon the occurrence of an Event of Default, the Agency shall have the right to exercise all the rights and remedies, and to maintain any action at law or suits in equity or other real property proceedings, to enforce the provisions of this Agreement, the DDa, the Restriction and the Deed of Trust, and to cure any Event of Default or violation hereof. No delay in enforcing the provisions hereof as to any Event of Default or violation shall impair, damage or waive the right of the Agency to enforce the provisions of this Agreement in the future or any continuing or new breach or violation of any of the covenants or restrictions contained in this Agreement, the DDA, the Restrictions, and the Deed of Trust. All rights and remedies, including without limitation those set forth in Section (a) above, of any party legally entitled to enforce this Agreement, the DDA, the Restrictions, and the Deed of Trust, shall be cumulative and the exercise of any such right or remedy shall not impair or prejudice and shall not be a waiver of the right to exercise any other such right and remedy. PueL:18874_111871 B2338.0 16-3 09/13/94 IN WITNESS WHEREOF, the parties have executed this Assumption Agreement to be effective on the date of recordation of a deed conveying the Property to Buying Owners. Date Date Buying Owner Buying Owner Based on information provided by Selling Owners and Buying Owners and on Buying Owners execution hereof, the La Quints Redevelopment Agency hereby approves Buying Owners to purchase the Property subject to this Agreement. La Quinta Redevelopment Agency Date By: Name Title PURL:18874_111871 B2338.0 16-4 09/13/94