2002 Senior Affordable Housing Corp - Disposition & Development AgreementDISPOSITION AND DEVELOPMENT AGREEMENT
by and between
LA QUINTA REDEVELOPMENT AGENCY,
a public body corporate and politic
and
SENIOR AFFORDABLE HOUSING CORP. NO.3,
a California nonprofit public benefit corporation
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TABLE OF CONTENTS
Page
I. [§ 100] SUBJECT OF AGREEMENT..............................................................................1
A.
[§ 101 ] Purpose of this Agreement........................................................................1
B.
[§102] The Redevelopment Plan .......................................................................... l
C.
[§103] The Project Area........................................................................................1
D.
[§ 104] The Site.....................................................................................................2
E.
[§ 105] Parties to the Agreement...........................................................................2
1. The Agency............................................................................................... 2
2. The Developer...........................................................................................2
F.
[§106] Prohibition Against Change in Ownership, Management and
Controlof Developer............................................................................................ 2
G.
[§107] Definitions.................................................................................................3
II. [§200] DISPOSITION OF THE SITE; FINANCING THE PROJECT ...........................6
A.
[§201 ] Option Agreement.....................................................................................
6
B.
[§202] Sale and Purchase; Purchase Price............................................................6
C.
[§203] Escrow.......................................................................................................7
1. Opening of Escrow...................................................................................
7
2. Close of Escrow........................................................................................
7
3. Escrow Instructions...................................................................................7
4. Delivery of Documents and Funds Into Escrow .......................................
8
5. Allocation of Costs...................................................................................8
6. Escrow Agent Duties................................................................................
9
7. Escrow Account......................................................................................10
8. Pro Rata Disbursements..........................................................................10
9. Broker's Commissions............................................................................10
10. Offset of Agency Financial Assistance...................................................10
D.
[§204] Conveyance of Title and Delivery of Possession....................................10
E.
[§205] Form of Grant Deed................................................................................10
F.
[§206] Condition of Title....................................................................................11
G.
[§207] Payment of the Purchase Price and Recordation of the Deed .................11
H.
[§208] Title Insurance.........................................................................................11
I.
[§209] Taxes and Assessments...........................................................................
I I
J.
[§210] Possession of the Site..............................................................................12
K.
[§211 ] Zoning, Etc. of the Site...........................................................................12
L.
[§212] Condition of the Site...............................................................................12
M.
[§213] Disclaimer of Warranties........................................................................12
N.
[§214] Conditions to Close of Escrow................................................................13
1. Agency's Conditions to Closing.............................................................13
2. Developer's Conditions to Closing.........................................................13
3. Waiver.....................................................................................................14
4. Failure of Conditions Precedent; Termination........................................14
O.
[§215] Financing.................................................................................................15
1. HUD Assistance......................................................................................15
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2. Agency Financial Assistance..................................................................15
P. [§216] Evidence of Financial Capability............................................................16
1. Financial Evidence..................................................................................16
III. [§300] DEVELOPMENT OF THE SITE.......................................................................17
A.
[§301 ] Development of the Site by the Developer.............................................17
1. Scope of Development............................................................................17
2. Construction Plans; Drawings and Related Documents .........................17
3. Agency Approval of Plans, Drawings and Related Documents .............17
4. Cost of Construction...............................................................................18
5. Construction Schedule; Progress Reports...............................................18
6. Bodily Injury, Property Damage and Workers' Compensation
Insurance.................................................................................................18
7. City and Other Governmental Agency Permits......................................20
8. Rights of Access.....................................................................................
20
9. Local, State and Federal Laws................................................................
20
10. Antidiscrimination During Construction................................................20
B.
[§302] Taxes, Assessments, Encumbrances and Liens.......................................20
C.
[§303] Security Financing; Rights of Holders....................................................21
1. No Encumbrances Except Mortgages, Deeds of Trust, Sales and
Leases -Back or Other Financing for Development................................21
2. Holder Not Obligated to Construct Improvements.................................21
3. Right of Agency to Cure Mortgage, Deed of Trust or other
Security Interest Default.........................................................................22
D.
[§304] Right of the Agency to Satisfy Other Liens on the Site After
TitlePasses..........................................................................................................22
E.
[§305] Indemnification.......................................................................................22
F.
[§306] Release of Construction Covenants.........................................................23
IV. [§400] USE AND OPERATION OF THE SITE............................................................23
A. [§401] Uses.........................................................................................................23
B. [§402] Obligation to Refrain From Discrimination............................................24
C. [§403] Form of Nondiscrimination and Nonsegregation Clauses ......................24
D. [§404] Effect of Covenants.................................................................................25
V. [§500] DEFAULTS, REMEDIES AND TERMINATION............................................25
A. [§501] Defaults; Right to Cure and Waivers......................................................25
B. [§502] Legal Actions..........................................................................................26
1. Institution of Legal Actions....................................................................26
2. Applicable Law.......................................................................................26
3. Acceptance of Service of Process...........................................................26
C. [§503] Rights and Remedies are Cumulative.....................................................26
D. [§5041 Remedies and Rights of Termination Prior to Convevance of the
Siteto the Developer...........................................................................................27
1. Termination by the Developer................................................................27
2. Termination by the Agency....................................................................27
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VI. [§600] GENERAL PROVISIONS..................................................................................28
A. [§601] Notices, Demands and communications Between the Parties.................28
B. [§602] Conflicts of Interest...........................................................................
C. [§603] Nonliability of Agency Officials and Employees...................................28
D. [§604] Enforced Delay: Extension of Times of Performance ............................28
E. [§605] Inspection of Books and Records............................................................29
F. [§606] Plans and Data.........................................................................................29
VII. [§700] SPECIAL PROVISIONS....................................................................................29
A. [§701] Recognition of HUD Agreement.............................................................29
B. [§702] Amendments to this Agreement..............................................................30
VIII. [§800] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS .......................... 30
IX. [§900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY .......................30
ATTACHMENTS
1 SITE MAP
2 LEGAL DESCRIPTION OF THE SITE
3 OPTION AGREEMENT AND ASSIGNMENT
4 SCHEDULE OF PERFORMANCE
5 GRANT DEED
6 SCOPE OF DEVELOPMENT
7 RELEASE OF CONSTRUCTION COVENANTS
8 REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS
9 MEMORANDUM OF DDA
10 PROJECT BUDGET
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is entered
into as of the day of October, 2002 ("Effective Date"), by and between the LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and SENIOR
AFFORDABLE HOUSING CORP. NO. 3, a California nonprofit public benefit corporation
("Developer"). The Agency and the Developer agree as follows:
I. [§100] SUBJECT OF AGREEMENT
A. [§ 101 ] Purpose of this Agreement
This Agreement and the Attachments hereto are intended to effectuate the
Redevelopment Plan for Project Area No. 2 and the California Community Redevelopment Law
(Health and Safety Code §§ 33000 et seq.) by providing for the disposition of certain real
property owned by the Agency located in the Project Area No. 2 designated herein as the "Site"
and the development of a housing project thereon that will provide housing opportunities for
very low income elderly persons under the federal U.S. Department of Housing and Urban
Development Section 202 housing program (12 U.S.C. § 1701q), including, if otherwise
qualified as provided herein, those who are displaced by community redevelopment projects.
Agency desires to meets its affordable housing goals by assisting Developer in the acquisition
and development of the Site by providing financial assistance to Developer from the Agency's
Low and Moderate Income Housing Fund (Health and Safety Code §§ 33334.2 et seq.).
The sale and development of the Site pursuant to this Agreement, and the fulfillment
generally of this Agreement, are in the vital and best interests of the City of La Quinta ("City")
and the health, safety, morals and welfare of its residents, and in accord with the public purposes
and provisions of applicable federal, state and local laws and requirements.
B. [§ 102] The Redevelopment Plan
This Agreement is subject to the provisions of the Redevelopment Plan for Project Area
No. 2, which was approved and adopted by the City Council of the City prior to the Effective
Date ("Redevelopment Plan"). The Redevelopment Plan, and any amendments, is incorporated
herein by reference and made a part hereof as though set forth in full.
Any amendment hereafter to the Redevelopment Plan (as so approved and adopted)
which changes the uses or development permitted on the Site as proposed in this Agreement, or
otherwise changes the restrictions or controls that apply to the Site, or otherwise affects the
Developer's obligations or rights with respect to the Site, shall require the written consent of the
Developer. No other amendments to the Redevelopment Plan shall require the consent of the
Developer.
C. [§103] The Project Area
The Redevelopment Project Area No. 2 ("Project Area") is located in the City. The exact
boundaries of the Project Area are specifically described in the Redevelopment Plan.
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D. [§ 104] The Site
The "Site" is that portion of the Project Area depicted on the "Site Map" attached hereto
and incorporated herein as Attachment No. 1, and having the legal description set forth in the
"Legal Description of the Site", incorporated herein as Attachment No. 2 to this Agreement. The
Site consists of unimproved, vacant land.
E. [§ 105] Parties to the Agreement
1. The Agency
The Agency is a public body, corporate and politic, exercising governmental functions
and powers and organized and existing under the Community Redevelopment Law of the State
of California (Health and Safety Code Section 33000 et seq.). The office of the Agency is
located at 78-495 Calle Tampico, 92253 California. As used in this Agreement the term
"Agency" includes the La Quinta Redevelopment Agency and any assigns of or successor to its
rights, powers and responsibilities.
2. The Developer
The Developer is Senior Affordable Housing Corp. No. 3, a California nonprofit public
benefit corporation. The principal office of the Developer is located at 516 Burchett Street,
Glendale, California 91203. Wherever the term "Developer" is used herein, such term shall
include any permitted nominee, assignee or successor in interest as herein provided.
F. [§ 106] Prohibition At Change in Ownership. Management and Control
of Developer
The qualifications and identity of the Developer are of particular concern to the Agency,
and it is because of such qualifications and identity that the Agency has entered into this
Agreement with the Developer. Accordingly, from the Effective Date and continuing for the
term of the Agency Regulatory Agreement, Developer shall not, except as permitted in this
Section 106, permit any voluntary or involuntary transfer or assignment of all or any part of this
Agreement, the Agency Regulatory Agreement, or any rights hereunder or in the Site, including
any transfer of the property management responsibilities, or undergo any change in ownership,
without Agency's prior written approval. As used herein, the term "transfer" shall include any
assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this Agreement,
the Site, or the improvements thereon.
Notwithstanding the foregoing, the following shall not be considered an assignment or
transfer and shall not require Agency approval for purposes of this Section 106:
a. The leasing of individual rental units on the Site provided that such
leasing is in accordance with the terms of this Agreement and of the Agency
Regulatory Agreement:
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b. Transfers to any transferee or assignee approved by HUD or entity
or entities in which Developer has a minimum of fifty-one percent (51 %) of the
ownership interest and management control;
C. Transfer to a nonprofit corporation formed to own and operate the
Project, provided that a majority of the board of directors of such corporation is
designated by the Developer;
d. Any mortgage, deed of trust, sale and leaseback, or other form of
financing required for any reasonable method of financing the acquisition and
development of the Project, approved by Agency in accordance with Section
303.1; and
HUD. e. Management of the Project by a management agent approved by
No assignment, including assignments which do not require Agency approval, but
excluding assignments for financing purposeg, shall be effective unless and until the proposed
assignee executes and delivers to Agency an assignment and assumption agreement in a form
approved by Agency counsel, assuming the obligations of the assignor which have been
assigned. Thereafter, the assignor shall be relieved of responsibility to Agency for performance
of the obligations assumed by the assignee.
Notwithstanding anything in this Section to the contrary, so long as the Project
contemplated by this Agreement is encumbered by a Deed of Trust and/or Regulatory
Agreement in favor of HUD, any proposed transferee or assignee must have the prior written
consent of HUD.
Nothing herein shall prohibit the Developer from transferring the Site to HUD or a
transferee selected by HUD without Agency approval.
G. [§ 107] Definitions
The following terms as used in this Agreement shall have the meanings set forth below
unless expressly provided to the contrary:
"Agency" shall have the meaning ascribed in Section 105.1 of this Agreement.
"Agency Construction Assistance" shall have the meaning ascribed in Section 215 of this
Agreement.
"Agency Financial Assistance" shall have the meaning ascribed in Section 215 of this
Agreement. The Agency Financial Assistance is comprised of the Agency Construction
Assistance and the Agency Maintenance Assistance.
"Agency Maintenance Assistance shall nave rile ineanirig ascriueu in SCClioll 215 of this
Agreement.
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"Agency Regulatory Agreement" shall mean the Regulatory Agreement and Declaration
of Covenants and Restrictions to be entered into between Agency and Developer upon the Close
of Escrow. The form of the Agency Regulatory Agreement shall be as set forth in Attachment
No. 8 to this Agreement.
"Agency's Conditions to Closing" shall mean those conditions precedent to Agency's
obligation to convey the Site to Developer set forth in Section 214.1 of this Agreement.
"Agreement" shall mean this Disposition and Development Agreement between Agency
and Developer, including all Attachments, which Attachments are a part hereof and incorporated
herein by this reference.
"Approved Title Condition" shall have the meaning ascribed in Section 206 of this
Agreement.
"City" shall mean the City of La Quinta, a municipal corporation, organized under the
laws of the State of California and having its offices at 78-495 Calle Tampico, La Quinta,
California 92253.
"Closing Date" or "Close of Escrow" shall mean the date the Grant Deed conveying fee
title to the Site to Developer is recorded in the Office of the County Recorder of Riverside
County, which shall occur concurrently with the HUD Closing.
"Developer" shall have the meaning ascribed in Section 105.2 of this Agreement.
"Developer's Conditions to Closing" shall mean those conditions precedent to
Developer's obligation to accept conveyance of the Site from Agency set forth in Section 214.2
of this Agreement.
"Effective Date" shall mean the later of the dates this Agreement is executed on behalf of
Agency and Developer, which date shall be inserted into the preamble to this Agreement. The
Effective Date shall occur after public hearing and approval hereof by Agency.
"Escrow" shall mean the escrow to be opened with the Escrow Agent for Developer's
acquisition of the Site pursuant to Section 203 of this Agreement.
"Escrow Agent" shall mean Commonwealth Land Title Company or such other escrow
company approved by Developer and Agency, at its offices in Riverside County.
"Executive Director" shall mean the individual duly appointed to the position of
Executive Director of Agency, or his or her authorized designee. Whenever an administrative
action is required by Agency to implement the terms of this Agreement, the Executive Director,
or his or her authorized designee, shall have authority to act on behalf of Agency, except with
respect to matters reserved for Agency Board determination
"urant Deed snaii mean we aeea conveying to lieveioper tec; simple utte to we Site m
the form attached hereto as Attachment No. 5.
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"HUD" shall mean the United States Department of Housing and Urban Development.
"HUD Capital Advance" shall mean the financial assistance to be provided by HUD to
the Developer in the amount of Nine Million Five Hundred Seventy -Seven Thousand Four
Hundred Dollars ($9,577,400) for the acquisition of the Site and the development of the Project
thereon.
"HUD Capital Advance Agreement" shall mean the agreement between HUD and the
Developer pursuant to which HUD provides a HUD Capital Advance to Developer for the
Proj ect.
"HUD Capital Advance Documents" shall collectively refer to the HUD Note, Deed of
Trust, Regulatory Agreement, Use Agreement, Capital Advance Agreement and Project Rental
Assistance Contract. The HUD Capital Advance Documents provide for long term HUD
regulatory controls with respect to the Project.
"HUD Closing" shall mean the point in time when all conditions of the HUD Firm
Commitment are satisfied permitting the Project to commence construction.
"HUD Firm Commitment" shall mean the written commitment by HUD to provide to the
Developer the HUD Capital Advance, and the project rental assistance and budget authority of
$281,700 and $1,408,500, respectively, on terms set forth in such commitment.
"Maintenance Escrow" shall mean the escrow established and administered by HUD in
which the Agency Maintenance Assistance will be deposited.
"Memorandum of DDA" shall mean that certain Memorandum of DDA in the form
attached hereto as Attachment No. 9.
"Opening of Escrow" shall have the meaning ascribed in Section 203.1 of this
Agreement.
"Option Agreement" shall mean that certain Option Agreement by and between Southern
California Presbyterian Homes, a California nonprofit corporation ("SCPH") and Agency dated
April 17, 2001. On or about October 3, 2002, SCPH assigned to Developer all of its right, title,
and interest in and to the Option Agreement. The Option Agreement and assignment agreement
are attached hereto as Attachment No. 3.
"Project" shall mean the development to be constructed and operated on the Site in
accordance with this Agreement. The Project will consist of seventy-nine (79) one bedroom
affordable senior citizen rental units, one (1) two bedroom on -site manager's unit, and related
driveway, parking, landscaping, and other incidental improvements, with all such improvements
to be consistent with the development and building plans and permits to be approved in
accordance with this Agreement.
"Project Area" shall have the meaning ascribed in Section 103 of this Agreement.
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"Project Budget" shall mean the sources and uses of funds for Developer's acquisition of
the Site and development of the Project, set forth on Attachment No. 10 attached hereto. The
Project Budget may not be amended or modified without the written consent of the Executive
Director.
"Purchase Price" shall mean the purchase price paid by Developer to Agency for the Site,
as more fully described in Section 202 of this Agreement.
"Redevelopment Plan" shall have the meaning ascribed in Section 102 of this Agreement.
"Release of Construction Covenants" shall have the meaning ascribed in Section 306 of
this Agreement. The form of the Release of Construction Covenants shall be as set forth in
Attachment No. 7 to this Agreement.
"Schedule of Performance" shall mean that certain Schedule of Performance attached
hereto as Attachment No. 4.
"Section 202" shall mean Section 202 of the Housing Act of 1959, as amended.
"Site" shall have the meaning ascribed in Section 104 of this Agreement.
"Term of the HUD Capital Advance Documents" shall mean the period commencing on
the date of the HUD Regulatory Agreement and ending on the 40`h anniversary of a date selected
by HUD on the Closing Date ("Selected Date"), the Selected Date being the first day of the
month following the month during which it is estimated occupancy of the Project will occur.
"Title Company" shall mean Commonwealth Land Title Company at its offices in
Riverside County or such other title insurance company approved by Developer and Agency.
"Title Policy" shall have the meaning ascribed in Section 208 of this Agreement.
II. 1§2001 DISPOSITION OF THE SITE; FINANCING THE PROJECT
A. [§201] Option Agreement
Pursuant to the Option Agreement, Agency granted to Developer's predecessor -in -
interest an option to acquire the Site. The Developer has until May 1, 2003, to exercise said
option. In the event Developer does not exercise the Option by said date, this Agreement shall
automatically terminate.
B. [§202] Sale and Purchase, Purchase Price
In accordance with and subject to all the terms, covenants and conditions of this
Agreement and the Option Agreement, provided the Developer exercises the option to acquire
the Site under the Option Agreement, the Agency agrees to sell, and the Developer agrees to
purchase, the Site for the sun- of One >\'Iillion DollL;rs ,000,000' (tl1c 7L11"C1-1EE Pricc";.
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C. [§203] Escrow
1. Opening of Escrow
Within five (5) business days following the exercise of the Option by Developer, the
parties shall open the Escrow with Escrow Agent by causing an executed copy of this Agreement
to be deposited with Escrow Agent. Escrow shall be deemed open on the date that a fully
executed copy of this Agreement is delivered to Escrow Agent (the "Opening of Escrow"). The
Escrow Agent shall notify Agency and Developer in writing of the date of the Opening of
Escrow promptly following the opening of Escrow.
2. Close of Escrow
Escrow shall close on or before the Closing Date. The parties acknowledge and agree
that the Closing Date shall be coordinated to occur concurrently with the HUD Closing. If (i) the
HUD Closing does not occur on or before August 1, 2003, or (ii) Escrow is not in a condition to
close on the Closing Date, then either party not then in default hereunder may elect to terminate
this Agreement and the Escrow by giving written notice of such termination to the other party
and to the Escrow Agent. No demand for return of funds or documents in Escrow shall be
recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand
to the other party at the address set forth in Section 105. If any objections are raised within the
10-day period, the Escrow Agent is authorized to hold all money, papers and documents with
respect to the Site until instructed in writing by both the Agency and the Developer or until the
party entitled thereto has been determined by a court of competent jurisdiction. No such
termination shall release either party then in default from liability for such default. If neither
party so elects to terminate this Agreement and the Escrow, Escrow Agent shall close the Escrow
as soon as possible after the conditions precedent to the close of Escrow are satisfied.
3. Escrow Instructions
This Agreement constitutes the joint escrow instructions of the Agency and the
Developer. In addition, if the Escrow Agent requires, the Agency and the Developer shall
provide such additional escrow instructions as shall be necessary and consistent with this
Agreement. In the event of any conflict between the provisions of this Agreement and Escrow
Agent's standard instructions, this Agreement shall prevail. The Escrow Agent hereby is
empowered to act under this Agreement, and upon indicating its acceptance of the provisions of
this Section 203 in writing, delivered to the Agency and to the Developer within five (5) days
after the Opening of Escrow, shall carry out its duties as Escrow Agent hereunder. Any
amendment of the escrow instructions shall be in writing and signed by both the Agency and the
Developer. At the time of any authorized amendment to the escrow instructions, the Escrow
Agent shall agree, by signing an appropriate statement, 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.
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4. Delivery of Documents and Funds Into Escrow
On or before the Closing Date, Developer shall deliver the following to Escrow Agent: (i)
the Agency Regulatory Agreement, duly executed and acknowledged by Developer; (ii) the
Memorandum of DDA, duly executed and acknowledged by Developer; and (iii) all other sums
and documents required by Escrow Agent to carry out and close the Escrow pursuant to this
Agreement, including Developer's portion of the Escrow fees and prorations. The Developer
shall deposit the Purchase Price for the Site with the Escrow Agent in accordance with the
provisions of Section 207 of this Agreement.
On or before the Closing Date, Agency shall deliver the following to Escrow Agent: (i)
the Grant Deed, duly executed and acknowledged by Agency; (ii) the Agency Regulatory
Agreement, duly executed and acknowledged by Agency; (iii) the Memorandum of DDA, duly
executed and acknowledged by Agency; (iv) an estoppel certificate certifying that the Developer
has completed all acts (except deposit of the Purchase Price) necessary to entitle the Developer
to conveyance of the Site, if such be the fact; and (v) all other sums and documents required by
Escrow Agent to carry out and close the Escrow pursuant to this Agreement, including Agency's
portion of the Escrow fees and prorations. In addition, if the Agency Financial Assistance is not
offset against the Purchase Price in accordance with Section 203.10 of this Agreement, Agency
shall deliver to the Escrow Agent the Agency Construction Assistance and shall deposit into the
Maintenance Escrow the Agency Maintenance Assistance on or before the Closing Date.
5. Allocation of Costs
The Developer shall pay in Escrow to the Escrow Agent the following fees, charges and
costs promptly after the Escrow Agent has notified the Developer of the amount of such fees,
charges and costs, but not earlier than ten (10) days prior to the scheduled date for the Close of
Escrow:
a. One-half of the Escrow fee; and
b. The portion of the premium for the title insurance policy or special
endorsements to be paid by the Developer as set forth in Section 208 of this
Agreement.
The Agency shall pay in escrow to the Escrow Agent the following fees, charges and
costs 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 the Close of
Escrow:
a. Costs necessary to place the title to the Site in the condition for
conveyance required by the provisions of this Agreement;
b. One-half of the escrow fee;
C. Recording tees;
d. Notary fees;
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e. The premium for an ALTA standard title insurance policy to be
paid by the Agency as set forth in Section 208 of this Agreement;
f. Ad valorem taxes, if any, upon the Site for any time prior to
conveyance of title; and
g. Any State, County or City documentary transfer tax.
6. Escrow Agent Duties
The Escrow Agent's duties hereunder shall be limited to implementation of Article II of
this Agreement. In addition to any other actions the Escrow Agency is authorized or required to
undertake pursuant to the provisions of this Agreement, the Escrow Agent is authorized and shall
take the following actions:
a. Pay and charge the Agency and the Developer, respectively, for
any fees, charges and costs payable under this Section 203 of this Agreement.
Before such payments 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
Escrow;
b. Disburse funds and deliver the Grant Deed and other documents to
the parties entitled thereto when the conditions of this Escrow have been fulfilled
by the Agency and the Developer;
C. Record the Grant Deed, the Agency Regulatory Agreement, and
the Memorandum of DDA in the Official Records of Riverside County,
California. Said recordation shall occur when the Title Policy can be issued and
fee title to the Site can be vested in Developer in the Approved Title Condition as
required by the provisions of this Agreement and each of the other conditions
precedent to the Close of Escrow set forth in Section 214 has been satisfied or
waived by the party for whose benefit such condition is set forth;
d. Buy, affix and cancel any transfer stamps required by law and pay
any transfer tax required by law;
e. After the Close of Escrow, deliver to Agency the recorded Agency
Regulatory Agreement, the recorded Memorandum of DDA, and a conformed
copy of the Grant Deed, and any other documents (or copies thereof) deposited by
Agency with Escrow Agent pursuant to this Agreement; and
f. After the Close of Escrow, deliver to Developer the recorded Grant
Deed, and any other documents (or copies thereof) deposited by Developer with
Escrow Agent pursuant to this Agreement.
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7. Escrow Account
All funds received in the Escrow shall be deposited by the Escrow Agent with other
escrow funds of Escrow Agent in a 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 such
general escrow account or accounts.
8. Pro Rata Disbursements
All pro rata disbursements shall be made on the basis of a 30-day month.
9. Broker's Commissions
The Agency and the Developer each represents and covenants to the other that it has not
engaged any broker, agent or finder in connection with this transaction, and each party shall
indemnify, defend, and hold harmless the other from and against any and all claims, liabilities, or
damages for the payment of any real estate commission or finder's or brokerage fee arising out
of the breach of this representation.
10. Offset of Agency Financial Assistance
At the option of either Agency or Developer, the Agency Financial Assistance to be paid
by Agency to Developer through the Escrow and the Maintenance Escrow shall be offset against
the Purchase Price.
D. [§204] Conveyance of Title and Delivery of Possession
Provided that the Developer is not in default under this Agreement and all conditions
precedent to such conveyance have occurred, and subject to any mutually agreed upon
extensions of time, conveyance to the Developer of title to the Site shall be completed on or prior
to the Closing Date. The Agency and the Developer agree to perform all acts necessary to
conveyance of title in sufficient time for title to be conveyed in accordance with the foregoing
provisions.
Possession of the Site shall be delivered to the Developer concurrently with the
conveyance of title, except that limited access shall be permitted before conveyance of title in
accordance with the terms of the Option Agreement. The Developer shall accept title and
possession on or before said date.
E. [§205] Form of Grant Deed
The Agency shall convey to the Developer title to the Site in the Approved Title
Condition described in Section 206 of this Agreement by Grant Deed in substantially the form
set forth in Attachment No. 5.
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F. [§206] Condition of Title
On the Closing Date, the Agency shall convey to the Developer the Site in the "Approved
Title Condition," which for purposes of this Agreement, shall mean fee simple title free and clear
of all recorded liens, encumbrances, assessments, leases and taxes excepting only (i) the
provisions of the Grant Deed and the Agency Regulatory Agreement, (ii) Exception Nos. 1, 4, 5,
and 8 of that certain Preliminary Title Report issued for the Property by Title Company dated
May 9, 2002, under its Order No. 6024239-05, and (iii) the standard printed conditions and
exceptions contained in the ALTA standard owner's policy of title insurance that is regularly
issued by the Title Company for transactions similar to the one contemplated by this Agreement.
G. [§207] Payment of the Purchase Price and Recordation of the Deed
The Developer shall promptly deposit the Purchase Price for the Site with the Escrow
Agent upon the date for the conveyance thereof, provided that Escrow Agent shall have notified
the Developer in writing that the Grant Deed or other instrument conveying the Site to the
Developer, properly executed and acknowledged by the Agency, has been delivered to the
Escrow Agent and that title or possession is in condition to be conveyed in conformity with the
provisions of Section 206 of this Agreement. The Escrow Agent shall deliver the Purchase Price
to the Agency on the Close of Escrow. The parties acknowledge that the Escrow shall close
concurrently with the HUD Closing. The Purchase Price shall be deposited in Escrow upon the
date of such HUD Closing; however, if HUD funds are not available on the date of the HUD
Closing and the parties agree in writing in the sole and absolute discretion of each of them, the
Purchase Price shall be deposited in Escrow when such HUD funds are available.
H. [§208] Title Insurance
Immediately following the Closing Date, the Escrow Agency shall cause the Title
Company, as insurer, to issue and provide and deliver to Developer, as insured, an ALTA
standard owner's policy of title insurance insuring that title to the Site is vested in the Developer
in the Approved Title Condition ("Title Policy"). The Title Policy coverage shall be in the
amount of the Purchase Price.
The Agency shall pay only for that portion of the title insurance premium attributable to a
ALTA standard owner's policy in the amount of the Purchase Price of the Site insuring title
vested in the Developer. The Developer shall pay for a Lender's policy insuring HUD as the
lender.
The Developer, if it desires any additional title insurance such as an ALTA extended
owner's title insurance policy, shall pay for all premiums for any extended coverage or special
endorsements which it requests.
I. [§209] Taxes and Assessments
Ad valorem taxes and assessments. if anv. on the Site. and taxes upon this Agreement or
any rights hereunder, levied, assessed or imposed for any period commencing prior to the
Closing Date shall be borne by the Agency. All such taxes and assessments levied or imposed
for any period commencing after the Closing Date shall be paid by the Developer.
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J. [§210] Possession of the Site
Possession of the Site shall be delivered to Developer at the Close of Escrow free and
clear of all tenancies, lessees, occupants, licensees, and all possessory rights of any kind or
nature, except as may be consistent with the Approved Title Condition.
K. [§211 ] Zoning, Etc. of the Site
At the time of conveyance of the Site to Developer, the zoning thereof shall be such as to
permit development of the Site and the construction, use, operation, and maintenance of the
improvements thereon in accordance with the provisions of this Agreement. The Developer shall
apply for all necessary permits as provided in Section 301.7 herein below.
L. [§212] Condition of the Site
The Agency has no actual knowledge of the existence of any soil or seismic condition,
geological defect or fault or the presence of hazardous substances on or under the Site except as
may have been disclosed in writing to Developer prior to the Close of Escrow.
It shall be the sole responsibility of the Developer, at the Developer's expense, to
investigate and determine the soil and seismic conditions of the Site and its suitability for the
development to be constructed thereon. It shall be the sole responsibility of the Developer to do
all work necessary to demolish, grade, clear and prepare the Site and to investigate and
determine the soil conditions of the Site and the suitability of the Site for the development to be
constructed by the Developer. If the soil conditions of the Site or any portion thereof are not in
all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole
responsibility and obligation of the Developer to take such action as may be necessary to place
the Site in all respects in a condition suitable for development.
M. [§213] Disclaimer of Warranties
Developer acknowledges that neither the Agency nor any of its employees, agents,
contractors, or representatives have made any representations, warranties or agreements to or
with Developer on behalf of Agency as to any matters concerning the Site, the present use
thereof, or the suitability of Developer's intended or contemplated use of the Site. The foregoing
disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present
and future zoning, soil, subsoil, Hazardous Materials, patent and latent physical conditions or
defects, the purposes to which the Site is suited, drainage, access to public roads, and the
availability of governmental permits or approvals of any kind. As used herein, the term
"Hazardous Materials" means any hazardous substance or material identified by any federal or
state law or regulations as hazardous or toxic. Developer represents and warrants to Agency that
it has investigated the Site, and has knowledge of the operative governmental laws and
regulations (including, but not limited to, zoning, environmental, hazardous waste and land use
laws and regulations) to which the Site may be subject, and is acquiring the Site on the basis of
its review and detenninatinr of the aj-), 11c it1nr rind effect of such laves and reculations.
Developer has neither received nor relied upon any representations concerning such laws and
regulations made by Agency or its employees, agents, contractors, or representatives, or any
other person acting on the behalf of Agency except as set forth in this Agreement. Any
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agreements, warranties, or representations not expressly contained in this Agreement shall in no
way bind Agency. Developer acknowledges that it is fully responsible for obtaining any and all
permits from the City and other governmental entities as may be required for the Project.
Nothing in this paragraph is intended to defeat or declare void any permits, approvals, or
entitlements that Developer has obtained with respect to the Site prior to the date of this
Agreement.
N. [§214] Conditions to Close of Escrow
1. Agency's Conditions to Closing
The Agency's obligation to convey the Site to Developer and the closing of the Escrow
shall, in addition to any other condition set forth herein in favor of the Agency, be conditional
and contingent upon the satisfaction, or waiver by the Agency in its sole and absolute discretion,
of each and all of the following conditions (collectively, "Agency's Conditions to Closing");
a. Developer shall have deposited into Escrow the Purchase Price,
and all other sums and documents required of Developer by this Agreement;
b. Developer shall have submitted to the Agency's Executive
Director the evidence of insurance required pursuant to Section 301.6 of this
Agreement;
C. Developer shall have submitted to the Agency's Executive
Director satisfactory evidence of Developer's financial capability to develop the
Site in accordance with Section 216 herein;
d. Developer shall have obtained (or upon the Closing Date will be
entitled to obtain) all of the development and building approvals from the City
and/or the Agency and any other governmental agency with jurisdiction required
for development of the Project on the Site, provided that nothing in this Section
214.1 is intended to limit or modify the Agency's or City's discretion with respect
to such matters;
e. Escrow Agent holds and will deliver to Agency the instruments
and funds to be delivered to Agency under this Agreement; and
f. Developer is not in material default of any term or condition of this
Agreement.
2. Developer's Conditions to Closing
Developer's obligation to purchase the Property from Agency and the closing of the
Escrow shall, in addition to any other condition set forth herein in favor of the Developer, be
conditional and contingent upon the satisfaction. or waiver by the Developer in its sole and
absolute discretion, of each and all of the following conditions (collectively, "Developer's
Conditions to Closing").
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a. Agency has deposited into Escrow all sums and documents
required of Agency by this Agreement;
b. Subject to Section 203.10 of this Agreement, Agency has
deposited into the Escrow the Agency Construction Assistance and into the
Maintenance Escrow the Agency Maintenance Assistance;
C. At the Closing Date, the Title Company shall be irrevocably
committed to issue the Title Policy insuring fee title to the Site is vested in
Developer;
d. Escrow Agent holds and will deliver to Developer the instruments
and funds to be delivered to Developer under this Agreement;
e. Developer shall have obtained upon the Closing Date all of the
development and building approvals from the City and/or the Agency required for
development of the Project on the Site, provided that nothing in this Section 214.2
is intended to limit or modify the Agency's or City's discretion with respect to
such matters; and
f. Developer shall have obtained from HUD the HUD Firm
Commitment and any other funds required for the Project, with the HUD Closing
and any other financing occurring concurrently on the Closing Date.
3. Waiver
Agency may at any time or times, at its election, waive any of the conditions set forth in
Section 214.1 above to its obligations hereunder, but any such waiver shall be effective only if
contained in a writing signed by Agency and delivered to Developer. Developer may at any time
or times, at its election, waive any of the conditions set forth in Section 214.2 above to its
obligations hereunder, but any such waiver shall be effective only if contained in a writing
signed by Developer and delivered to Agency.
4. Failure of Conditions Precedent, Termination
In the event each of the conditions set forth in Section 214.1 is not fulfilled within the
time provided in Section 214.1 or waived by Agency pursuant to Section 214.3, Agency may, at
its option, terminate this Agreement and the Escrow opened hereunder, thereby releasing the
parties from further obligations hereunder. In the event that the conditions set forth in Section
214.2 are not fulfilled or waived prior to the Closing Date, Developer may, at its option,
terminate this Agreement and the Escrow opened hereunder, thereby releasing the parties from
further obligations hereunder. In the event this Agreement is terminated, subject to the
provisions of Section 203.1, all documents and funds delivered by Seller to Agency or Escrow
Agent shall be returned immediately to Seller and all'documents and funds delivered by Agency
to Seller or Escrow Agent shall be returned immediately to Agencv. Nothine in this Section
214.4 shall be construed as releasing any party from liability for any default of its obligations
hereunder or breach of its representations and warranties under this Agreement occurring prior to
the termination of this Agreement and/or the Escrow to be opened hereunder
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O. [§215] Financing
As set forth in this Section 215, Developer is obtaining funding from both HUD and the
Agency for the acquisition of the Site and the development of the Project thereon. Developer
shall utilize such funding exclusively for acquisition of the Site and development of the Project
thereon, and not for any other purpose.
1. HUD Assistance.
Developer hereby represents to Agency that: (i) pursuant to Section 202, Developer has
obtained a grant reservation for the HUD Capital Advance and the project rental assistance of
$281,700 and budget authority of $1,408,500 (collectively "HUD Funds"); and (ii) subject to
Developer successfully obtaining the HUD Funds and the completion of the HUD Closing,
Developer is authorized to use the HUD Funds for an eighty (80) unit rental housing complex on
the Site. Within the time set forth in the Schedule of Performance, Developer shall submit a
complete application for and obtain the HUD Firm Commitment, and Developer thereafter shall
take all actions necessary to timely proceed to HUD Closing in accordance with the Schedule of
Performance.
2. Agency Financial Assistance.
Agency acknowledges that HUD will not pay for design standards desired by Agency
which are inconsistent with HUD's cost containment guidelines. In order to assist in the
development of affordable rental housing within the City, Agency shall provide to Developer
financial assistance for the following development and maintenance costs of the Project that are
not included in the HUD Capital Advance (collectively, the "Agency Financial Assistance"): (i)
the costs incurred by Developer for the construction of patios, carports, excess parking and
landscaping, metal trellises, pool, architectural fees for design of amenities, and off -site
improvements, not to exceed the sum of Seven Hundred Forty -Five Thousand Dollars
($745,000) ("Agency Construction Assistance"); and (ii) and the sum of One Hundred Forty -
Two Thousand Dollars ($142,000) for the maintenance of the pool and patios ("Agency
Maintenance Assistance"). Subject to Section 203.10, on or before the Closing Date, Agency
shall deposit into the Escrow the portion of the Agency Financial Assistance equal to the Agency
Construction Assistance. Prior to such submittal, Agency, Developer and the Escrow Agent
shall agree upon escrow instructions for the release of such funds to Developer. Such escrow
instructions shall provide for the expenditure of funds in the following order of priority as
required by HUD: (i) the Agency Construction Assistance, and (ii) the HUD Capital Advance
funds. In addition, such escrow instructions shall provide for Developer to furnish requests for
disbursement of the Agency Construction Assistance on a form provided by HUD with such
supporting information as Agency may reasonably require. In the event the costs incurred by
Developer for expenses eligible for payment from the Agency Construction Assistance funds are
less than $745,000, the unexpended portion of the Agency Construction Assistance shall be
returned to Agency immediately upon completion of the Project. Subject to Section 203.10, on
or before the Closing Date, Agency shall deposit into the Maintenance Escrow the portion of the
Agency Financial Assistance equal to the Agency Maintenance Assistance. The Agency
Maintenance Assistance may used by Developer for the maintenance of the pool and patios and
for no other purpose.
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If actual cost of construction of the Project on the Site exceeds the amount set forth in the
Project Budget, Developer shall be responsible for raising the additional money to fund the
Project through additional HUD or other grants or sources.
As a condition to the grant of the Agency Financial Assistance, Developer agrees that
neither it, nor any officer, shareholder, director, employee, representative, agent, or any family
member of same, nor any entity formed by any of the foregoing nor any entity in which any of
the foregoing has an interest, shall be entitled to any development fee, construction management
fee, reimbursement for overhead, or similar fee or charge, by whatever name called, for the
acquisition of the Site or the development of the Project thereon. The prohibition set forth in this
paragraph shall not apply to wholly independent contractors who provide development services.
In addition, nothing herein is intended or shall be construed to prohibit Developer from retaining
Southern California Presbyterian Homes to manage the Project.
Agency's obligation to deliver the Agency Financial Assistance to Developer shall be
subject to Developer's satisfaction or Agency's written and signed waiver of each of Agency's
Condition to Closing set forth in Section 214.1, as well as compliance with all of the other terms
of this Article II.
P. [§216] Evidence of Financial Capability
Financial Evidence.
Within the time set forth in the Schedule of Performance, Developer shall submit to
Agency's Executive Director evidence reasonably satisfactory to the Executive Director that
Developer has the financial capability necessary for the development of the Project on the Site
pursuant to this Agreement. Such evidence of financial capability shall include all of the
following:
a. a complete executed copy of the HUD Firm Commitment;
b. a financial statement and/or other documentation reasonably
satisfactory to the Executive Director sufficient to demonstrate that Developer has
adequate funds available and committed to cover any difference between (A) the
Project Budget, and (B) the combined proceeds of the HUD Capital Advance and
the Agency Financial Assistance; and
C. a copy of the proposed construction contract between Developer
and its general contractor for all of the improvements required to be constructed
by Developer hereunder, certified by Developer to be a true and correct copy
thereof.
The Executive Director shall complete his or her review of and approve or disapprove
Developer's evidence of financial capability within the time set forth in the Schedule of
Performance. If the Executive Director shall disapprove such evidence of financing, he or she
shall do so by written notice to Developer stating the reasons for such disapproval. In such
event, Developer shall promptly resubmit its evidence of financial capability not less than thirty
(30) days after receipt of the Executive Director's disapproval, the Executive Director shall
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reconsider such resubmittal within the same number of days allowed for the initial submittal,
and/ the deadlines in the Schedule of Performance shall be extended accordingly.
III. [§300] DEVELOPMENT OF THE SITE
A. [§301 ] Development of the Site by the Developer
1. Scope of Development
Developer shall develop the Project on the Site in strict conformity with this Agreement,
the Scope of Development attached to this Agreement as Attachment No. 6, and the plans and
permits approved by the Agency and the City.
2. Construction Plans: Drawings and Related Documents
The Developer shall prepare and submit construction plans, drawings and related
documents to the Agency for architectural review and approval as and at the times established in
the Schedule of Performance (Attachment No. 4).
During the preparation of all drawings and plans, Agency staff and the Developer shall
hold regular progress meetings to coordinate the preparation of, submission to, and review of
construction plans and related documents by the Agency. 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.
If any revisions or corrections of plans approved by the Agency shall be required by any
government official agency, department or bureau having jurisdiction, or any lending institution
involved in financing, the Developer and the Agency shall cooperate in efforts to obtain a waiver
of such requirements or to develop a mutually acceptable alternative. If no such waiver is
obtained and no such alternative is developed, the Agency shall be bound by such revisions or
corrections if they are not inconsistent with the Scope of Development.
3. Agency Approval of Plans. Drawings and Related Documents
The Agency shall approve or disapprove the plans, drawings and related documents
referred to in Section 301.2 of this Agreement within the time established in the Schedule of
Performance (Attachment No. 4). Any disapproval shall state in writing the reasons for
disapproval and the changes which the Agency requests be made. Such reasons and such
changes must be consistent with the Scope of Development (Attachment No. 6) and any items
previously approved hereunder by the Agency. The Developer, upon receipt of a disapproval
based upon powers reserved by the Agency hereunder, shall revise such plans, drawings and
related documents and resubmit them to the Agency as soon as possible after receipt of the notice
of disapproval, provided that in no case shall the Agency be entitled to require changes
inconsistent with the Scope of Development and any previously approved items.
If the Developer desires to make any substantial change in the construction plans after
their approval by the Agency, the Developer shall submit the proposed change to the Agency for
its approval, If the construction plans, as modified by the proposed change, conform to the
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requirements of Section 301.2 of this Agreement, the approvals previously granted by the
Agency under this Section 301.3 and the Scope of Development (Attachment No. 6), the Agency
shall approve the proposed change and notify the Developer in writing within thirty (30) days
after submission to the Agency.
4. Cost of Construction
Subject to the Agency's provision of the Agency Financial Assistance as set forth in
Section 215, the cost of developing the Site and constructing all improvements thereon shall be
borne by the Developer. The Agency and the Developer shall each pay the costs necessary to
administer and carry out their respective responsibilities and obligations under this Agreement.
5. Construction Schedule: Pro ress Reports
The Developer shall begin and complete all construction and development within the
times specified in the Schedule of Performance (Attachment No. 4) or such reasonable extension
of said dates as may be granted in writing by the Agency in Agency's sole and absolute
discretion.
During the period of construction, but not more frequently than once a month, the
Developer shall submit to the Agency a written progress report of the construction when and as
requested by the Agency Executive Director or his designee. The report shall be in such form
and detail as may reasonably be required by the Agency and shall include a reasonable number
of construction photographs taken since the last report submitted by the Developer.
6. Bodily Injury. Property Damage and Workers' Compensation Insurance
Prior to the Close of Escrow, Developer shall procure and maintain, at its sole cost and
expense, in a form and content satisfactory to the Executive Director, the following policies of
insurance:
a. Commercial General Liability Insurance. A policy of commercial
general liability insurance written on a per occurrence basis in an amount not less
than: (A) for death and bodily injury, either (i) a combined single limit of ONE
MILLION DOLLARS ($1,000,000.00) or (ii) ONE MILLION DOLLARS
($1,000,000) per person and ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, and ONE MILLION DOLLARS ($1,000,000.00) in the aggregate,
and (B) for property damage, ONE MILLION DOLLARS ($1,000,000.00) per
occurrence.
b. Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the
State of California and which shall indemnify, insure, and provide legal defense
for both the Developer and Agency against any loss, claim or damage arising
from any injuries or occupational diseases occurring to any worker employed by
or any persons retained by Developer in the course of carrying out the work or
services contemplated in this Agreement.
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C. Automotive Insurance. A policy of comprehensive automobile
liability insurance written on a per occurrence basis in an amount not less than
either (i) bodily injury liability limits of ONE MILLION DOLLARS
($1,000,000.00) per person and ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, and property damage liability limits of ONE MILLION DOLLARS
($1,000,000.00) per occurrence and ONE MILLION DOLLARS ($1,000,000.00)
in the aggregate or (ii) combined single limit liability of ONE MILLION
DOLLARS ($1,000,000.00). Said policy shall include coverage for owned, non -
owned, leased, and hired cars.
d. Additional Requirements. The following additional requirements
shall apply to all of the above policies of insurance.
(i) All of the above policies of insurance shall be primary
insurance and, except the Worker's Compensation insurance, shall name
Agency, City, and their respective officers, officials, members, employees,
agents, and representatives as additional insureds. The insurer shall waive
all rights of subrogation and contribution it may have against Agency,
City, and their officers, officials, members, employees, agents, and
representatives, and their respective insurers. All of said policies of
insurance shall provide that said insurance may not be amended or
cancelled without providing thirty (30) days' prior written notice to
Agency and City. In the event any of said policies of insurance are
cancelled, the Developer shall, prior to the cancellation, date, submit new
evidence of insurance in conformance with this Section to the Executive
Director. Not later than the Effective Date of this Agreement, Developer
shall provide the Executive Director with Certificates of Insurance or
appropriate insurance binders evidencing the above insurance coverages
and said Certificates of Insurance or binders shall be subject to the
reasonable approval of the Executive Director.
(ii) The policies of insurance required by this Agreement shall
be satisfactory only if issued by companies qualified to do business in
California, rated "A" or better in the most recent edition of Best Rating
Guide, The Key Rating Guide or in the Federal Register, and only if they
are of a financial category Class VII or better, unless such requirements
are waived by the Risk Manager of Agency ("Risk Manager") due to
unique circumstances.
(iii) Developer agrees that the provisions of this Section shall
not be construed as limiting in any way the extent to which Developer
may be held responsible for the payment of damages to any persons or
property resulting from the Developer's activities or the activities of any
person, or persons for which the Developer is otherwise responsible.
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From and after the date of Agency's issuance of the Release of Construction Covenants,
and for the term of the Agency Regulatory Agreement, Developer shall procure and maintain the
insurance set forth in the Agency Regulatory Agreement.
7. City and Other Governmental Agency Permits
Before commencement of construction or development of any buildings, structures or
other work of improvement upon the Site (unless such construction, development or work is to
be commenced before the conveyance of title), the Developer shall 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. The Agency, at no cost to Agency, shall
provide all assistance deemed appropriate by the Agency to the Developer in securing these
permits.
8. Rights of Access
For the purposes of assuring compliance with this Agreement, representatives of the
Agency shall have the reasonable right of access to the Site without charges or fees and at
normal construction hours during the period of construction, including, but not limited to, the
inspection of the work being performed in constructing the improvements. Such representatives
of the Agency shall be those who are so identified in writing by the Executive Director of the
Agency. The Agency shall indemnify the Developer and hold it harmless from any damage
caused or liability arising out of this right to access; provided that it is understood that Agency
does not by this Section 301.8 assume any responsibility or liability for a negligent inspection or
failure to inspect. In addition, any observation or inspection by Agency during its access
pursuant to this Section shall not be construed or deemed as an inspection pursuant to any
building codes or the Municipal Code or any other inspection that may be performed by City or
any other public entity.
9. Local, State and Federal Laws
The Developer shall carry out the construction of the Project in conformity with all
applicable laws and regulations, including all applicable federal and state labor standards.
10. Antidiscrimination During Construction
The Developer, for itself and its successors and assigns, agrees that in the construction of
the improvements provided for in this Agreement, the Developer will not discriminate against
any employee or applicant for employment because of race, color, creed, religion, sex, marital
status, age, ancestry or national origin.
B. [§302] Taxes. Assessments. Encumbrances and Liens
The Developer shall pay when due all real estate taxes and assessments assessed and
levied on the Site for any period subsequent to conveyance of title to or delivery of possession of
the Site. Prior to the issuance of the Release of Construction Covenants, the Developer shall not
place or allow to be placed on the Site any mortgage, trust deed, encumbrance or lien not
authorized by this Agreement except for those required by HUD that may arise during the term
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of the HUD Section 202 trust deed. The Developer shall remove or have removed any levy or
attachment made on the Site (or any portion thereof), or shall assure the satisfaction thereof,
within a reasonable time, but in any event prior to a sale thereunder. Nothing herein contained
shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax,
assessment, encumbrance or lien, nor to limit the remedies available to the Developer in respect
thereto.
The Developer understands that under certain conditions, its control of the Site or portion
thereof under this Agreement may give rise to the imposition of a possessory interest tax on said
property and, in such event, the Developer agrees to pay when due any such possessory interest
tax.
C. [§303] Security Financing, Rights of Holders
1. No Encumbrances Except Mortgages Deeds of Trust Sales and Leases
Back or Other Financing for Development
Notwithstanding Sections 106 and 302 of this Agreement, mortgages, deeds of trust, sales
and leases -back or any other form of conveyance required for any reasonable method of
financing are permitted before issuance of a Release of Construction Covenants but only for the
purpose of securing loans or advances of funds to be used for financing the acquisition of the
Site, the construction of improvements on the Site and any other expenditures necessary and
appropriate to develop the Site under this Agreement. The Developer shall notify the Agency in
advance of any mortgage, deed of trust, sale and lease -back or other form of conveyance for
financing if the Developer proposes to enter into the same before issuance of a Release of
Construction Covenants. The Developer shall not enter into any such conveyance for financing
without the prior written approval of the Agency (unless such lender shall be one of the ten (10)
largest banking institutions doing business in the State of California, or one of the ten (10)
largest insurance lending institutions in the United States qualified to do business in the State of
California, or HUD), which approval the Agency agrees to give if any such conveyance is given
to a responsible financial or lending institution or other acceptable person or entity. The HUD
Firm Commitment for the HUD Capital Advance under Section 202 in the amount of the
construction costs for the Project to be secured by a deed of trust is deemed approved. Such
lender shall be deemed approved unless rejected in writing by the Agency within ten (10) days
after notice thereof to the Agency by the Developer. In any event, the Developer shall promptly
notify other financing conveyance, encumbrance or lien that has been created or attached thereto
prior to completion of the construction of the improvements on the Site whether by voluntary act
of the Developer or otherwise. The words "mortgage" and "deed of trust," as used herein,
include all other appropriate modes of financing real estate acquisition, construction and land
development.
2. Holder Not Obligated to Construct Improvements
The holder of any mortgage, deed of trust or other security interest authorized by this
Agreement shall in no way be obligated by provisions of this Agreement to construct or
complete the improvements or to guarantee such construction or completion, nor shall any
covenant or any other provision in the grant deed for the Site be construed so to obligate such
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holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such
holder to devote the Site to any uses or to construct any improvements thereon other than those
uses or improvements provided for or authorized by this Agreement.
3. Right of Agency to Cure Mortgage, Deed of Trust or other Security
Interest Default
In the event of a default or breach by the Developer of a mortgage, deed of trust or other
security interest with respect to the Site prior to the completion of development, and the holder
has not exercised its option to complete the development, the Agency may cure the default prior
to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement
from the Developer of all costs and expenses incurred by the Agency in curing the default. The
Agency shall also be entitled to a lien, provided such lien has the prior written approval of HUD,
upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to
mortgages, deeds of trust or other security interests executed for the sole purpose of obtaining
funds to purchase and develop the Site as authorized herein.
D. [§304] Right of the Agency to Satisfy Other Liens on the Site After Title
Passes
After the conveyance of title and prior to the issuance of a Release of Construction
Covenants for construction and development, and after the Developer has had a reasonable time
to challenge, cure or satisfy any liens or encumbrances on the Site, the Agency shall have the
right to satisfy any such liens or encumbrances, provided, however, that nothing in this
Agreement shall require the Developer to pay or make provision for the payment of any tax,
assessment, lien or charge so long as the Developer in good faith shall contest the validity or
amount thereof, and so long as such delay in payment shall not subject the Site to forfeiture of
sale.
E. [§305] Indemnification
During the period of any construction of the improvements pursuant to this Agreement
and until such time as the Agency issues its Release of Construction Covenants for the Project,
Developer agrees to and shall indemnify and hold Agency and City harmless from and against all
liability, loss, damage, cost, or expense (including expert witness fees and reasonable attorneys'
fees and court costs) arising from or as a result of the death of any person or any accident, injury,
loss, or damage whatsoever caused to any person or to the property of any person which shall
occur on the Site and which shall be directly or indirectly caused by the acts done thereon or any
errors or omissions of Developer or its agents, servants, employees, invitees, or contractors.
Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors, or
omissions of Agency or City or their respective agents, servants, employees, or contractors
acting in an official capacity. Agency and City shall not be responsible for any acts, errors, or
omissions of any person or entity except Agency and City and their respective agents, servants,
employees, or contractors acting in an official capacity, subject to any and all statutory and other
immunities. The provisions of this Section shall survive the termination of this Agreement.
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F. [§306] Release of Construction Covenants
Promptly after completion of all construction and development to be completed by the
Developer upon the Site and upon written request by the Developer, the Agency shall furnish the
Developer with a Release of Construction Covenants in form attached hereto as Attachment No.
7, which Release of Construction Covenants shall be recorded in the Office of the County
Recorder of Riverside County.
The Release of Construction Covenants shall be, and shall so state, a conclusive
determination of satisfactory completion of the construction required by this Agreement upon the
Site and of full compliance with the terms hereof relating to construction of the Project on the
Site.
The Agency shall not unreasonably withhold issuance of the Release of Construction
Covenants. If the Agency refuses or fails to furnish the Release of Construction Covenants for
the Site after written request from the Developer, the Agency shall, within ten (10) days of the
request, provide the Developer with a written statement of the reasons the Agency refused or
failed to furnish the Release of Construction Covenants. The statement shall also contain the
Agency's opinion of the action the Developer must take to obtain the Release of Construction
Covenants. If the reason for such refusal is confined to the immediate unavailability of specific
items or materials not exceeding ten percent (10%) of the cost of total construction, the Agency
will issue its Release of Construction Covenants upon the posting of a cash deposit, or a letter of
credit, or a bond by the Developer with the Agency in an amount representing the fair value of
the work not yet completed.
The Release of Construction Covenants shall not constitute evidence of compliance with
or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a
mortgage securing money loaned or advanced to finance the improvements or any part thereof.
The Release of Construction Covenants is not a notice of completion as referred to in California
Civil Code Section 3093.
IV. [§400] USE AND OPERATION OF THE SITE
A. [§401] Uses
Developer and its successors assigns shall use, operate, and maintain the Project and the
Site in accordance with the provisions of the Agency Regulatory Agreement for the term set
forth therein.
In the event of a conflict between this Agreement or the Agency Regulatory Agreement
and the HUD Capital Advance Documents (defined as the HUD deed of trust note, deed of trust,
Regulatory Agreement, Use Agreement, Capital Advance Agreement and Project Rental
Assistance Contract), the HUD Capital Advance Documents shall prevail.
If, as a condition precedent to HUD's provision of the HUD Capital Advance to
Developer, HUD requires any modifications to this Agreement or the agreements attached
hereto, the Executive Director shall have the authority in his sole and absolute discretion to
approve such modifications and execute any necessary amendments; it being understood,
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however, that nothing herein shall be construed as a precommittment by the Executive Director
to approve any modifications.
B. [§402] 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 race,
color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any
person claiming under or through the Developer establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. The foregoing
covenants shall run with the land.
C. [§403] Form of Nondiscrimination and Nonsegreuation Clauses
The Developer shall refrain for restricting the rental, sale or lease of the Site on the basis
of race, color, creed, religion, sex, marital status, ancestry or national origin of any person. All
such deeds, leases (including rental agreements) 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 premises 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 premises 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:
"That there shall be no discrimination against or segregation of any person
or group of persons on account of race, color, creed, religion, sex, marital
status, national origin or ancestry, in the leasing, subleasing, transferring,
use, occupancy, tenure or enjoyment of the premises herein leased, nor
shall the lessee 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,
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number, use or occupancy of tenants, lessees, subtenants, sublessees 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, national origin or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, or 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
land."
D. [§404] Effect of Covenants
All conditions, covenants, and restrictions contained in this Agreement shall be covenants
running with the land, and shall, in any event, and without regard to technical classification or
designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for
the benefit and in favor of, and enforceable by Agency, its successors and assigns, and the City
and its successors and assigns, against Owner, its successors and assigns, to or of the Property
conveyed herein or any portion thereof or any interest therein, and any party in possession or
occupancy of said Property or portion thereof.
In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that Agency and the City are each deemed a beneficiary of the agreements,
covenants, and restrictions provided hereinabove both for and in its own right and also for the
purposes of protecting the interests of the community. All covenants without regard to technical
classification or designation shall be binding for the benefit of Agency and the City and such
covenants shall run in favor of Agency and City for the entire period during which such
covenants shall be in force and effect, without regard to whether Agency is or remains an owner
of any land or interest therein to which such covenants relate. However, all such covenants and
restrictions shall be deemed to run in favor of all real property owned by the City and Agency
which real property shall be deemed the benefited property of such covenants. Furthermore, all
of the covenants, conditions, and restrictions contained herein shall also constitute easements in
gross running in favor of the Agency and City. Agency shall have the right, in the event of any
breach of any such agreement or covenant, to exercise all the rights and remedies, and to
maintain any action at law or suit in equity or other proper proceedings to enforce the curing of
such breach of agreement or covenant.
V. 1§5001 DEFAULTS, REMEDIES AND TERMINATION
A. [§501] Defaults; Right to Cure and Waivers
Subject to the extensions of time set forth in Section 604, failure or delay by either party
to perform any term or provision of this Agreement constitutes a default under this Agreement;
provided, however, that such party shall not be deemed to be in default if (i) it cures, corrects, or
remedies such default within thirty (30) days after receipt of a notice from the other party
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�Ci
specifying such failure or delay and thereafter diligently prosecutes such cure, correction, or
remedy to completion, or (ii) for defaults that cannot reasonably be cured, corrected, or remedies
within such time period, if such party commences to cure, correct, or remedy such failure or
delay within thirty (30) days after receipt of a notice from the other party specifying such failure
or delay, and thereafter diligently prosecutes such cure, correction, or remedy to completion.
The injured party shall give written notice of default to the party in default specifying the
default complained of by the injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against the party in default until the
time for cure, correction, or remedy of a default has expired.
Except as otherwise expressly provided in this Agreement, any failure or delay by either
party in asserting any of its rights or remedies as to any default shall not operate as a waiver of
any default or of any such rights or remedies or deprive such party of its right to institute and
maintain any actions or proceedings which it may deem necessary to protect, assert or enforce
any such rights or remedies.
B. [§502] Legal Actions
Institution of Legal Actions
In addition to any other rights or remedies, subject to the requirements of Section 501,
either party may institute legal action to cure, correct or remedy any default, to recover damages
for any default, or to obtain any other remedy consistent with the purposes of this Agreement.
All 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 appropriate Federal District
Court in the State of California.
2. Applicable Law
The laws of the State of California shall govern the interpretation and enforcement of this
Agreement.
3. Acceptance 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 Chairman of the
Agency, 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 the Developer or in
such other manner as may be provided by law and shall be valid whether made within or without
the State of California.
C. [§503] Rights and Remedies are Cumulative
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by either party of one or more of such rights or remedies
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shall not preclude the exercise by it, at the same time or different times, of any other rights or
remedies for the same default or any other default by the other party.
D. [§504] Remedies and Rights of Termination Prior to Conveyance of the Site
to the Developer
1. Termination by the Developer
In the event that prior to conveyance of title to the Site to the Developer:
a. The Developer does not exercise the Option to acquire the Site for
any reason; or
b. The Agency does not tender conveyance of the Site or possession
thereof in the manner and condition and by the date provided in this Agreement
and in any such failure is not cured within thirty (30) days after written demand
by the Developer; or
C. The Developer does not obtain a Firm Commitment for Capital
Advance Financing from HUD acceptable to Developer; or
d. The Developer has not obtained all building and other permits
required for the Project; or
e. The Agency does not provide the Agency Financial Assistance on
the Closing Date;
then this Agreement shall, at the option of the Developer, be terminated by written notice thereof
to the Agency. Upon such termination, neither the Agency nor the Developer shall have any
further rights against or liability to the other under this Agreement and Developer shall have no
further rights in and to the Site.
2. Termination by the Agency
In the event that prior to conveyance of title to the Site to the Developer and in violation
of this Agreement:
a. The Developer transfers or assigns or attempts to transfer or assign
this Agreement or any rights herein or in the Site or the buildings or
improvements thereon in violation of this Agreement; or
b. There is any significant change in the ownership or identity of the
Developer or the parties in control of the Developer or Developer or the degree
thereof contrary to the provisions of section 106 hereof, or
C. The Developer does not pay the Purchase Price and take title to the
Site under tender of conveyance by the Agency pursuant to this Agreement; or
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d. The Developer is in breach or default with respect to any other
obligation of the Developer under this Agreement; or
e. If any default or failure referred to in subdivision c or d of this
Section shall not be cured within the time for cure set forth in this Agreement;
then this Agreement, and any rights of the Developer or any assignee or transferee in this
Agreement and the Site, shall, at the option of the Agency, be terminated by the Agency.
VI. (§600] GENERAL PROVISIONS
A. [§601] Notices. Demands and communications Between the Parties
Formal notices, demands and communications between the Agency and the Developer
shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return
receipt requested, to the principal offices of the Agency and the Developer as set forth in Section
105 hereof. 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.
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 such member, official or employee participate in any
decision relating to this Agreement which is prohibited by law.
The Developer warrants that it has not paid or given, and will not pay or give, any third
person any money or other consideration for obtaining this Agreement.
C. [§603] Nonliability of Agency Officials and Employees
No member, official or employee of the Agency shall be personally liable to the
Developer in the event of any default or breach by the Agency or for any amount which may
become due to the Developer or on any obligations under the terms of this Agreement.
D. [§604] Enforced Delay: Extension of Times of Performance
In addition to the specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default where delays or defaults are due to war;
insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; 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 of the
other party; acts or the failure to act of any public or governmental agency or entity (except that
acts or the failure to act of the Agency 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
perfonn. An extension of time for any such cause shall only be for the period of the enforced
delay, which period 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
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the commencement of the cause. If notice by the party claiming such extension is sent to the
other party more than thirty (30) days after the commencement of the cause, the period of the
enforced delay shall commence to run from the date that is thirty (30) days prior to the date
written notice is sent to the other party. Developer's failure to obtain financing for the Project
within the time set forth in this Agreement shall not be considered an event or cause beyond the
control of Developer and shall not entitle Developer to an extension of time to perform. Times
of performance under this Agreement may also be extended in writing by mutual written
agreement of the Agency and the Developer. The Executive Director shall have the authority on
behalf of the Agency to approve extensions of time not to exceed a cumulative total of one
hundred eighty (180) days.
E. [§605] Inspection of Books and Records
The Agency has the right, upon not less than seventy-two (72) hours notice, at all
reasonable times, to inspect the books and records of the Developer pertaining to the Site as
pertinent to the purposes of this Agreement. The right of inspection shall not extend to
documents privileged under attorney -client or other such privileges.
The Developer also has the right, upon not less than seventy-two (72) hours notice, at all
reasonable times, to inspect the books and records of the Agency pertaining to the Site as
pertinent to the purposes of this Agreement. The right of inspection shall not extend to
documents privileged under attorney -client or other such privileges
F. [§606] Plans and Data
Where the Developer does not proceed with the purchase and development of the Site,
and when this Agreement is terminated pursuant to Section 504 hereof for any reason, the
Developer shall deliver to the Agency any and all plans and data concerning the Site, and the
Agency or any other person or entity designated by the Agency shall be free to use such plans
and data, including plans and data previously delivered to the Agency, for any reason whatsoever
without cost or liability therefor to the Developer or any other person, to the extent permitted by
the agreements between Developer and Developer's consultants, or to the extent permitted by
law. The requirements of this section are subject to the requirements of the Capital Advance
Agreement between the Developer and HUD.
VII. [§7001 SPECIAL PROVISIONS
A. [§701 ] Recognition of HUD Agreement
Notwithstanding anything herein to the contrary, in the event the Secretary of HUD
("HUD Secretary"), during the Term of the HUD Capital Advance Documents, should take title
to the Site through foreclosure, deed in lieu of foreclosure, or otherwise, all covenants,
conditions and restrictions set forth in this Agreement shall cease and terminate and be of no
further force and effect.
Notwithstanding anything herein to the contrary, if, during the Term of the HUD Capital
Advance Documents, any provision of this Agreement tends to contradict, modify or in any way
change the terms of the HUD Regulatory Agreement encumbering the real property described in
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such Agreement to be entered into between the HUD Secretary and the Developer, the terms of
the HUD Regulatory Agreement shall prevail and govern; or if any provision of this Agreement
in any way tends to limit the HUD Secretary in his administration of the Housing Act of 1959, as
amended, or the Cranston -Gonzalez National Affordable Housing Act, or the regulations issued
pursuant thereto, this Agreement shall be deemed amended so as to comply with the Acts, the
regulations and the aforementioned HUD Regulatory Agreement.
Notwithstanding anything in this Agreement to the contrary, during the Term of the HUD
Capital Advance Documents, no amendment to this Agreement shall be effected without the
prior written approval of the HUD Secretary, his successor or assigns.
B. [§702] Amendments to this Agreement
The Developer and the Agency agree to mutually consider reasonable requests for
amendments to this Agreement which may be made by either of the parties hereto, lending
institutions or financial consultants to the Agency, provided such requests are consistent with this
Agreement and would not substantially alter the basic business terms included herein.
VIII. 1§8001 ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This Agreement may be executed in duplicate counterparts, each of which shall be
deemed to be an original. This Agreement comprises pages 1 through 31, inclusive, and
Attachment Nos. 1 through 9, attached hereto and incorporated herein by reference, all of which
constitute the entire understanding and agreement of the parties.
This Agreement integrates all of the terms and conditions mentioned herein or incidental
hereto, and supersedes all negotiations or previous agreements between the parties with respect
to all or any part of the subject matter hereof; provided, however, that nothing herein shall in any
way modify, amend, or supersede, or otherwise affect the rights and obligations of Agency or
Developer under the Option Agreement.
All waivers of the provisions of this Agreement must be in writing and signed by the
appropriate authorities of the party to be charged, and all amendments hereto must be in writing
and signed by the appropriate authorities of the Agency and the Developer.
IX. 1§9001 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 within forty-five (45) days after the date of
signature by the Developer of this Agreement or this Agreement shall be void, except to the
extent that the Developer shall consent in writing to further extensions of time for the
authorization, execution and delivery of this Agreement. The Effective Date of this Agreement
shall be the date when this Agreement has been signed by the Agency, which date shall be
inserted in the preamble to this Agreement.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Agency and Developer have executed this Agreement as of
the dates set forth below.
DATED: /7/a-3 , 2002
ATTEST:
1�-.-ncy Secretary
i1
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
Attorneys or the La Qui to Redevelopment
Agency
DATED:
2002
"AGENCY"
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"DEVELOPER"
SENIOR
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public benefit
538/015610-0047
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538/015610-0047
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ATTACHMENT NO. 2
LEGAL DESCRIPTION OF THE SITE
That certain property located in the City of La Quinta, County of Riverside, State of
California, described as follows:
LOT 285 OF TRACT NO. 24230, IN THE CITY OF LA QUINTA, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 214, PAGE(S) 69 THROUGH 82, INCLUSIVE, OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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ATTACHMENT NO. 3
OPTION AGREEMENT AND ASSIGNMENT
[ATTACHED]
538/015610-0047 ,
247806.06 PM02
SCPH
SOUTHERN CALIFORNIA
PRESBYTERIAN HOMES
1955 �4 S 2000
PRESIDENT & CEO
GERALD W. DINGIVAN
CHAIR. BOARD OF TRUSTEES
CRAWFORD F. BRUBAKER
October 3, 2002
Mr. Benjamin F. Beckler III
Southern California Presbyterian Homes
516 Burchett Street
Glendale, CA 91203
Re: 78-875 Avenue 47, La Quinta, CA
Assessor's Parcel Number 643-090-014
Dear Ben:
Southern California Presbyterian Homes (SCPH) is party to an Option Agreement
by and between the La Quinta Redevelopment Agency ("Agency") and Southern
California Presbyterian Homes ("Optionee") dated April 17, 2001 for the above
referenced property (attached). SCPH hereby agrees to convey its rights and
interest regarding this Option Agreement to Senior Affordable Housing Corp. No.
3 for the development of an 80-unit affordable housing. Property transfer shall be
completed simultaneously with the HUD project funding.
Sinc rely,
Sally Little
Vice President — Affordable Housing
i
i
Accepted by'.
On behal L nioTAfford able Housing Corp. No. 3
g; 247-()a (; / FAx ( 1 �-„ "'� 7- '871 / ',vwW.SCphs com
16 E E- _T, ::..I_ DALE, C , 91-'�� ( ' I
OPTION AGREEMENT
This OPTION AGREEMENT (the "Option" or "Agreement") is entered into as of
April 17, 2001, by and between the LA QUINTA REDEVELOPMENT AGENCY, a public
body, corporate and politic ("Agency"), and SOUTHERN CALIFORNIA PRESBYTERIAN
HOMES, a non-profit, public benefit corporation ("Optionee").
RECITALS
A. Agency is the owner in fee of that certain real property consisting of
approximately eight acres located in the City of La Quinta, County of Riverside, State
of California, more particularly described in the legal description attached hereto as
Exhibit "A" (the "Agency Parcel").
B. Agency and Optionee desire to enter into this Agreement to provide for
Agency to grant to Optionee, and Optionee to obtain from Agency, upon the terms set
forth in this Agreement, an option to acquire the Agency Parcel and all improvements
now or hereafter constructed thereon and easements, licenses and interests
appurtenant thereto (collectively, the "Property."
AGREEMENT
Based upon the foregoing Recitals, which are incorporated herein by this
reference, and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Agency and Optionee agree as follows:
1 . OPTION TO ACQUIRE.
1.1 Grant of Option: Option Period. Agency, subject to the terms and
conditions set forth herein, hereby grants to Optionee an option to purchase the
Property ("Option"). This Option shall commence on the date hereof and shall
continue until the "Option Termination Date" (the "Option Period"). The Option
Terminate Date shall be dependent on whether Optionee receives notice from the
United States Department of Housing and Urban Development ("HUD") on or prior to
December 31, 2001, that Optionee's application for a fund reservation under Section
202 of the Housing Act of 1959, 12 U.S.C. Section 1701 q ("Fund Reservation") has
been approved. If Optionee does not receive the Fund Reservation approval on or prior
to December 31, 2001, the Option Termination Date shall be the earlier of (i) 4:00
p.m. on December 31, 2001; or (ii) the date Optionee receives notice that the
application for a Fund Reservation has been rejected provided that if such notice of
rejection is received by Optionee prior to December 31, 2001, Optionee shall have
until December 31, 2001, to obtain a reversal of such rejection. If Optionee's
application for the Fund Reservation is approved by HUD, the Option Termination Date
shall be the date that is eighteen (18) months after the date that HUD approved the
Fund Reservation. Notwithstanding anything in the foregoing to the contrary, in no
event shall the Option Period expire earlier than November 30, 2001.
G:\WPDOCS\AgrmtSCPH.wpd
1.2 Purpose of Option. The parties agree that the purpose of this Option is
for the specific purpose of facilitating the acquisition of the Property and the
development thereon of an affordable senior citizen housing project containing eighty
(80) units (the "Project").
1.3 Consideration for Option. As consideration for the granting of the Option,
Optionee shall pay to Agency the sum of Ten Dollars ($10.00), the sufficiency of
which is hereby acknowledged. Said Option consideration shall not be applicable to
the Purchase Price.
1.4 Exercise of Option. In the event Optionee elects to exercise the Option
to purchase the Property and has performed all acts in the time and manner as required
by the terms hereof, and is not in default under any provision of this Agreement,
Optionee shall exercise the Option by delivering to Agency, on or before 4:00 p.m. on
the last day of the Option Period, written notice of Optionee's election to acquire the
Property together with a copy of HUD's approval of the Fund Reservation.
1.5 Automatic Termination. This Option shall automatically terminate without
any notice to Optionee, and all rights of Optionee in and to the Property shall then and
there cease if Optionee does not exercise the Option to purchase the Property in the
manner set forth in Section 1.4 of this Agreement prior to the expiration of the Option
Period set forth in Section 1.1 . Such termination shall not release Optionee from its
obligations to pay sums due and owing pursuant to the terms hereof up to and
including the date of such termination, nor from Optionee's obligations pursuant to
Sections 1 .6, 5.1, and 5.3 hereof.
1.6 Document to Remove Cloud. This Agreement constitutes only an Option
to purchase the Property, and although the Option granted hereby shall automatically
terminate with respect to the Property unless exercised within the times provided for
herein, or shall otherwise terminate as provided in Section 1 .4, Optionee nonetheless
in all events agrees to execute, acknowledge and deliver to Agency within ten (10)
days after Agency's request therefor, any quitclaim deed or other document(s) required
by a reputable title company of Agency's choice, which said title company might
require to remove any cloud from the title of Agency to the Property that might arise
as a result of the Option herein granted.
2. INSPECTIONS AND REVIEW.
2.1 Title Review. If Optionee receives the Fund Reservation, then thirty (30)
days after Agency has received written notice from Optionee that Optionee has
received the Fund Reservation, Agency shall deliver to Optionee a preliminary title
report for the Property, together with copies of all written instruments creating the
exceptions specified therein (collectively, the "Title Report"). Within thirty (30) days
after receipt of -the Title Report, Optionee shall notify Option in writing ("Optionee's
Title Notice") of any matters of title disapproved by Optionee (the "Disapproved
G:\WPDOCS\AgrmtSCPH.wpd
Exceptions"). Optionee's failure to deliver Optionee's Title Notice within said thirty
(30) day period shall constitute Optionee's approval of all the title exceptions in the
Title Report. Agency shall have a period of thirty (30) days after receipt of Optionee's
Title Notice in which to notify Optionee in writing ("Agency's Title Notice") of
Agency's election to either agree to remove the Disapproved Exceptions prior to the
close of escrow for the conveyance of the Property to Optionee or to decline to
remove the Disapproved Exceptions. Agency's failure to provide Optionee with
Agency's Title Notice within said thirty (30) day period shall be deemed Agency's
election to decline to remove the Disapproved Title Exceptions. In the event Optionee
elects to exercise the Option, Optionee shall be deemed to have agreed to accept title
to the Property subject to any Disapproved Exceptions which Agency in Agency's Title
Notice notified Optionee it was declining to remove or which Agency shall be deemed
to have decline to remove by its failure to deliver the Agency Title Notice ("Approved
Title Exceptions"). The deadlines set forth in this Section 2.1 may be extended by
mutual agreement of the parties.
2.2 Investigation of Property. Optionee, at its sole cost and expense, shall
have the right to make such independent investigations, inspections, tests, reviews,
studies or surveys (collectively, the "Investigations") as Optionee deems necessary or
appropriate concerning the condition or suitability for ownership, use, subdivision,
development, construction, or sale of the Property by Optionee, including, without
limitation, any desired Investigations of the soils or groundwater conditions, including
a study and determination as to the existence of any noxious, toxic, flammable,
explosive or radioactive matter or any hazardous materials or hazardous substances
or any crude oil or byproducts of crude oil. During the Option Period, Agency hereby
grants to Optionee and its representatives, agents, consultants, contractors, and
designees a non-exclusive right of entry onto the Property for the purposes of
conducting the Investigations. Optionee shall provide at least 48-hours advanced
written notice to Agency when Optionee desires to exercise its right of entry. Agency
shall have the right to reasonably refuse entry if such entry shall interfere with
Agency's use of the Property. Optionee agrees to repair any damage or disturbance
that Optionee or its agents, representatives, or contractors cause to the Property, and
Optionee shall indemnify, defend, and hold Agency harmless from and against any and
all claims, expenses, demands, lawsuits, causes of action, attorney's fees, and the like
arising out of or related to the exercise by Optionee or its agents, representatives, or
contractors, of the right of entry granted by Agency to Optionee pursuant to this
Section 2.2.
3. FUND RESERVATION.
As additional consideration for the granting of this Option,' Optionee hereby
agrees to submit to HUD an application for the Fund Reservation on or before the
deadline date for such submission occurring in May 2001 as imposed by HUD, and,
thereafter, Optionee shall perform all actions as may be reasonably required to secure
the Fund Reservation from HUD. Optionee shall request that HUD provide copies of
all correspondence and notices regarding the Fund Reservation to Agency.
G:\WPDOCS\AgrmtSCPH.wpd 3
r+,
4. CONDITIONS TO CLOSE OF ESCROW.
If Optionee receives the Fund Reservation and exercises the Option described
herein, the Agency and Optionee shall open escrow as provided for in subsection (d)
below and the following shall be conditions to close of escrow for the conveyance of
the Property by Agency to Optionee:
a. Conveyance of the Property for the agreed -upon purchase price
("Purchase Price"). With respect to the Purchase Price, the Purchase Price for
the Property shall be $1,000,000 or the HUD determination of value for a "fully
improved site" whichever is less. The Optionee agrees to consult with the
Agency if HUD requires Optionee to obtain its appraisal by utilizing an appraiser
from the list of appraisers approved by HUD.
b. Agency and Optionee shall have entered into a Disposition and
Development Agreement acceptable to HUD. The DDA shall contain the usual
and customary terms of such agreements entered into by the Agency for
affordable housing projects, shall contain provisions for the sale of real property
for the Purchase Price, and shall refer to or include, as applicable, the other
terms set forth in this Section 4.
C. A regulatory agreement containing covenants, conditions, and
restrictions pertaining to the development, operation, and maintenance of the
Property of an 80-unit senior citizen rental housing project, with all of the units
to be leased at rents not exceeding the maximum "affordable rent" under
California law for persons and families of "very low income," i.e., persons and
families whose income does not exceed fifty percent (50%) of the median
income for Riverside County, adjusted for family size. The regulatory agreement
shall run for not less than thirty (30) years from the date Project construction
is completed. The regulatory agreement shall further provide that the Project
shall comply with all HUD requirements with respect to rental rates, rental
policies, availability to the general, public, maintenance, reporting requirements
arid any other matter which is the subject of applicable HUD regulations. The
regulatory agreement shall be subject to HUD approval.
d. An escrow shall be opened with the Escrow Department at First
American Title Insurance Company or other escrow company mutually
acceptable to Optionee and Agency, within five(5) business days of the exercise
of the Option, with the following terms applicable:
(i) the Purchase Price shall be paid at close of escrow;
(ii) Agency shall pay the premium for a CLTA standard owner's
policy of title insurance in the amount of the Purchase Price subject to
the Approved Title Exceptions and the exceptions Optionee approved or
deemed to have approved pursuant to Section 2.1, and Optionee shall
pay for any extended or additional coverage or endorsements.
G:\WPDOCS\AgrmtSCPH. wpd 4
ti
(iii) Agency shall pay for documentary stamps on the deed;
(iv) Agency and Optionee shall each pay for one-half of the
escrow charges;
(v) taxes and assessments shall be prorated to close of escrow;
and
NO escrow closing shall be subject to Optionee obtaining a Firm
Commitment for Capital Advance Financing from HUD and any other
funds required for the project, with the closing of the HUD and any other
financing occurring concurrently with the close of escrow for the
Property.
e. The close of escrow for the conveyance of the Property shall be
on or before the date that is sixty (60) days following Optionee's exercise of the
Option.
f. Optionee shall accept the Property in its "As -Is", "Where -Is" and
"With -All -Faults" condition. Agency staff has no actual knowledge of the
presence of hazardous substances or materials in, under, or upon the Property.
g. Agency's reasonable approval of Optionee's Project financing other
than the HUD Capital Advance including sources and uses of funds and a
Project pro forma.
h. Approval by the City of La Quinta of any land use approvals
required for the Project, including but not limited to a Site Development Permit.
5. MISCELLANEOUS.
5.1 Attorney's Fees. In the event of any dispute between the parties hereto
involving the covenants or conditions contained in this Option or arising out of the
subject matter of the Option, the prevailing party shall be entitled to recover, and the
other party agrees to pay, all reasonable fees, expenses and costs, including, but not
limited, to attorneys' fees and expert witness fees.
5.2 Notices. All notices required to be delivered under this Agreement to the
other party must be in writing and shall be effective (i) when personally delivered by
the other party or messenger or courier thereof; (ii) three (3) business days after
deposit in the United States mail, registered or certified; (iii) twenty-four (24) hours
after deposit before the daily deadline time with a reputable overnight courier or
service; or (iv) upon receipt of a telecopy or fax transmission, provided a hard copy of
such transmission shall be thereafter delivered in one of the methods described in the
G:\WPDOCS\AgrmtSCPH.wpd 5
foregoing (i) through (iii); in each case postage fully prepaid and addressed to the
respective parties as set forth below or to such other address and to such other
persons as the parties may hereafter designate by written notice to the other parties
hereto:
To Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Thomas P. Genovese, Executive Director
Telecopier: (760) 777-7101
Copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Fourteenth Floor
Costa Mesa, California 92626
Attn: M. Katherine Jenson, Esq.
Telecopier: (714) 546-9035
To Optionee: Southern California Presbyterian Homes
516 Burchett Street
Glendale, California 91203
Attn: Sally Little
Telecopier: (818) 247-3871
5.3 Broker's Fees. Agency and Optionee each represents and warrants to the
other than no third party is entitled to a real estate or broker's commission and/or
finder's fee with respect to the transactions contemplated by this Agreement. Each
party agrees to indemnify and hold the other harmless from and against all liabilities,
costs, damages and expenses, including, without limitation, attorney's fees, resulting
from any claims or fees or commissions, based upon agreements by it, if any, to pay
broker's commissions and/or finder's fees.
5.4 Assignment. Optionee shall have no right to assign the Option herein
granted or any right or privilege Optionee might have in the Option, by operation of law
or otherwise, without the prior written consent of Agency, which consent may be
withheld in Agency's sole and absolute discretion. Any attempt by Optionee to make
an assignment other than with the prior written consent of Agency shall be null and
void. Notwithstanding the foregoing, without the consent of Agency, Optionee shall
have the right to assign this Agreement to a non-profit corporation formed for the sole
purpose of owning and operating the project as required by HUD, but such consent
shall not be effective unless and until the assigness agrees in writing to carry out and
observe Optionee's agreements hereunder.
5.5 Time of the Essence. Time is of the essence with respect to each of the
terms, covenants and conditions of this Agreement.
5.6 Binding on Heirs. Subject to the limitations set forth in Section 5.4
above, this Agreement shall be binding upon and inure to the benefit of the successors
and assigns of the respective parties hereto.
G:\WPDOCS\AgrmtSCPH.wpd 6
5.7 Modification. Waivers and Entire Agreement. Any amendments or
modifications to this Agreement must be in writing and executed by both parties to
this Agreement. No delay or omission by either party hereto in exercising any right or
power accruing upon the compliance or failure of performance by the other party
hereto under the provisions of this Agreement shall impair any such right or power or
be construed to be a waiver thereof. A waiver by either party hereto of a breach of any
of the covenants, conditions or agreements hereof to be performed by the party shall
not be construed as a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions thereof This Agreement contains the
entire agreement of the parties hereto with respect to the matters covered hereby, and
all negotiations and agreements, statements or promises between the parties hereto
or their agents with respect to this transaction are merged in this Agreement, which
alone expresses the parties' rights and obligations. No prior agreements or
understandings not contained herein shall be binding or valid against either of the
parties hereto.
5.8 Interpretation: Governing Law: Forum. This Agreement shall be construed
according to its fair meaning and as if prepared by both parties hereto. This Agreement
shall be construed in accordance with the laws of the State of California in effect at
the time of the execution of this Agreement. Title and captions are for convenience
only and shall not constitute a portion of this Agreement. As used in this Agreement,
masculine, feminine or neuter gender and the singular or plural number shall each be
deemed to include the others wherever and whenever the context so dictates. In the
event of any litigation between the parties hereto, the Municipal and Superior Courts
of the State of California in and for the County of Riverside shall have exclusive
jurisdiction.
5.9 Severability. If any term, provision, condition or covenant of this
Agreement or the application thereof to any party or circumstances shall, to any
extent, be held invalid or unenforceable, the remainder of this instrument, or the
application of such term, provision, condition or covenant to persons or circumstances
other than those as to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
5.10 Authority to Execute. The person(s) executing this Agreement on behalf
of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said party, (iii)
by so executing this Agreement, such party is formally bound to the provisions of this
Agreement, and (iv) the entering into this Agreement does not violate any provision
of any other agreement to which said party is bound.
5.11 Execution in Counterpart. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on all parties
hereto, notwithstanding that all parties are not signatories to the original or the same
counterpart.
G:\WPDOCS\AgrmtSCPH.wpd 7
•%
5.12 No Recordation. Optionee shall not cause or allow this Agreement, short
form, memorandum or assignment hereof to become of record in any public office
without Agency's prior written consent, which consent may be withheld in Agency's
sole discretion and absolute discretion.
5.13 Exhibit. Exhibit "A" attached hereto is hereby incorporated herein by this
reference.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement the day and year first above written.
ATTEST:
J ' GREEK, Agency Seciretary
APPROVED AS TO FORM
UTAN & TUCKER, LLP
M ATHERINE JEN ON,
AI ncy Legal Counsel
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
TERRY NDERSON, Chairperson
"AGENCY"
SOUTHERN CALIFORNIA
PRESBYTERIAN HOMES, a California
non -prof' , public rb.fit corporation
By:
Vicr( P3tesi
:NJAM D BECELFR, III
SV President, Project Development
"OPTIONEE"
G:\WPDOCS\AgrmtSCPH.wpd 8
EXHIBIT "A"
LEGAL DESCRIPTION OF AGENCY PARCEL
Lot 285 of Tract 24230, as shown by Map on file in Book 214, Pages 69 through 82,
inclusive, of maps, records of Riverside County, California.
G:\WPDOCS\AgrmtSCPH.wpd 9
ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE
TIME FOR PERFORMANCE
1.
Developer submits final plans and
Complete.
construction drawings for the Project
301.2 .
2.
Agency approves (or disapproves) final plans
Within ninety (90) days after Effective
and drawings for Project 0301.3).
Date.
3.
Developer submits complete application for
January 15, 2003.
HUD Firm Commitment 215.1 .
4.
Developer exercises option to acquire the
On or before May 1, 2003.
Site from A enc 201 .
5.
Opening of Escrow (§203.1).
Within five (5) business days following
the Developer's exercise of the option to
acquire the Site.
6.
Developer receives HUD Firm Commitment
Prior to and as condition of the Close of
3 03. 1.
Escrow.
7.
Developer submits evidence of financial
Within five (5) days of Developer's
capability (§216).
receipt of HUD Firm Commitment, but
in any event prior to and as condition to
Close of Escrow.
8.
Agency's Executive Director approves (or
Within five (5) days after receipt of
disapproves) Developer's evidence of
complete submittal and prior to Close of
financial capability 216 .
Escrow.
9.
Close of Escrow; recordation of Grant Deed,
Concurrent with the HUD Closing and
Agency Regulatory Agreement, and
upon satisfaction of all conditions to
Memorandum of DDA (§§203.2, 203.6).
Close of Escrow, but in no event later
than August 1, 2003.
10.
HUD Closing 203.2 .
Concurrently with Close of Escrow.
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247806.06 PM02
11.
Subject to Section 203.10 of the Agreement,
Concurrently with Close of Escrow.
Agency deposits Agency Construction
Assistance into Escrow and deposits Agency
Maintenance Assistance into Maintenance
Escrow. 215 .
12.
Developer submits, and obtains Agency
Prior to Close of Escrow.
Executive Director's approval of, evidence of
insurance 301.6.
13.
Developer commences construction of the
Within ten (10) days after Close of
Project 301.5.
Escrow.
14.
Developer completes construction of the
Within twenty-four (24) months after
Project and obtains certificate of occupancy
Close of Escrow.
from City 301.5 .
15.
Agency issues Release of Construction
Upon satisfactory completion of
Covenants (§306).
construction of the Project and
performance of Items 1-14, upon request
of Developer.
16.
Developer submits to Agency annual report
On or before August 1 st each year
required pursuant to Health and Safety Code
subsequent to completion of
33418, as amended from time to time.
construction of the Project.
It is understood that the foregoing Schedule is subject to all of the terms and conditions of
the text of the Agreement. The summary of the items of performance in this Schedule is not
intended to supersede or modify the more complete description in the text; in the event of any
conflict or inconsistency between this Schedule and the text of the Agreement, the text shall
govern.
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ATTACHMENT NO.5
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
LA QUINTA REDEVELOPMENT AGENCY
78-495 Calle Tampico
La Quinta, California 92553
Attn: Executive Director
(Space Above Line for Recorder's Use)
Free recording requested per
Government Code Section 6103.
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, hereby
grants to SENIOR AFFORDABLE HOUSING CORP. NO. 3, a California nonprofit public
benefit corporation, that certain real property located in the City of La Quinta, County of
Riverside, State of California, described in the legal description attached hereto as Exhibit "A"
and incorporated herein by this reference. This conveyance is made subject to all matters of
record.
Pursuant to Sections 33435 and 33436 of the Health and Safety Code, Agency is required
to obligate purchasers of real property to refrain from discrimination and to include certain non-
discrimination clauses in deeds, leases, and contracts.
NOW, THEREFORE:
1. Obligation to Refrain from Discrimination. There shall be no discrimination
against, or segregation of, any persons, or group of persons, on account of race, color, creed,
religion, sex, marital status, ancestry, or national origin in the sale, lease, or rental or in the use,
occupancy, or enjoyment of the Property, nor shall Grantee 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 or any portion thereof, The foregoing
covenants shall run with the land and shall remain in effect in perpetuity.
2. Form of Nondiscrimination and Nonse regation Clauses. Grantee shall refrain
from restricting the rental, sale, or lease of any portion of the Property, or contracts relating to
the Property, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national
origin of any person. All such deeds, leases or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
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,
538/015610-0047
247806.06 PM02
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, ancestry, or national
origin in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the
land herein conveyed, nor shall the grantee himself, or any persons 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 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 race, color, creed, religion, sex, marital status, ancestry, or national origin
in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land
herein leased, nor shall the lessee 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,
sublessees, subtenants, or vendees in the land herein leased."'
C. In contracts: "There shall be no discrimination against or segregation of
any persons or group of persons on account of race, color, creed, religion, sex, marital
status, ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or
enjoyment of 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 land."
3. Third Party Beneficiary. Agency shall be a third party beneficiary to the
provisions of this Grant Deed and shall have the right, but not the obligation, to enforce the
provisions hereof.
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
LI-A
Its:
ATTEST:
Agency Secretary
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247806.06 PM02 -2-
"AGENCY"
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On before me, , personally
appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Notary Public
538/015610-0047 e✓
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
That certain real property in the City of La Quinta, County of Riverside, State of
California, legally described as follows:
LOT 285 OF TRACT NO. 24230, IN THE CITY OF LA QUINTA, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 214, PAGE(S) 69 THROUGH 82, INCLUSIVE, OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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ATTACHMENT NO.6
SCOPE OF DEVELOPMENT
[ATTACHED]
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EX81BIT 4(c)(i)
BUILDING DESIGN
Building Design - Residential Buildings
Each of the two residential buildings has an overall "X" shaped plan. Each "X" contains four
individual wings, containing 10 residential units each. These smaller wings help to create a
smaller, more residential scale for the residents. The four wings come together at a central
courtyard, forming the center of the "X". Located within this courtyard area are several
community spaces for the building's residents. A small library/computer room can act as a quiet
public space for reading or a space for resident access to computers and the Internet. A .
hobby/craft room can be utilized for multiple group activities, such as sewing, painting, drawing,
and ceramics, or can act as a quiet public space for possible board games like chess or
backgammon. A laundry room with a spacious folding table has visual contact with the courtyard
through windows to facilitate social interaction. A small lounge is open to the courtyard and will
provide a setting for informal social interaction.
This layout creates a strong sense of "neighborhood" for the forty residents of each "X" shaped
building. This simple, compact layout, which takes advantage of outdoor spaces, is a cost-
effective solution to a single story residential setting.
The entire building is easily accessible to all residents.
(Note: See "Unit Design", "Methods to Promote Energy Efficiency", and "Outline
Specifications" for more building design information.)
Building Design - Central Amenities Building
The building will have an entry waiting/lounge, which seats approximately 8 people. This area
can double as a waiting/social area for guests and residents, as well as a mailbox area. The
manager's office and the adjacent office are situated such that the manager or office personnel
have immediate access to the Lobby and building entrance. It is important that management staff
have such control to ensure security and to facilitate personal assistance to the residents. The
Lobby is also provided with a large Display area and a separate area for posting of events/notices
on a bulletin board.
A Community Room, sized so all tenants can congregate and located prominently off the main
lobby, will be provided. The area will be used for a variety of social, educational and
recreational activities. The Community Room is designed to facilitate smaller, multiple activities
to occur through its 2-sectioned shape-.'' This room might have a TV or other passive recreational
uses. Storage areas for tables, chairs, and other items is provided and located in the Community
Room area. The Community Room accesses the landscaped areas surrounding the building.
A Service/warming Kitchen is located adjacent to the Community Room and is designed to serve
a variety of groups and events.
The building will include a maintenance/shop area for maintenance items and will have
additional exterior storage for yard maintenance items when possible.
Unit Design - Typical Living Unit
F
Each one -bedroom unit will not exceed 540 total square feet in area. The units will vary slightly
in exact layout, due to the building design constraints. Each apartment unit will contain a
kitchen with a full-size range and refrigerator, sink and sufficient cabinet and counter space.
Adjustable countertops and removable base cabinets allow for lowering of countertops to
wheelchair accessible height. Living/dining areas will provide adequate space for living/dining
conditions and ample closet/storage that is easily accessed by each resident. All units are
designed to be fully adaptable for persons with disabilities, including door strike clearances,
bathroom layout, kitchen space, etc. An emergency call pull -cord system is installed in each unit
bathroom and bedroom for the safety of the residents. These features will accommodate the
changing needs of the residents over the next 10-20 years to permit "aging -in -place" and enable
the continued independence for the residents. �c
Amenities and Special Space Accommodations
A. Site Design
Resident parking is evenly distributed around the site and clustered near
each residential wing, which minimizes travel distance to each unit. Guest
parking is at the project's entry and near the Central Amenities Building.
Automatic/security gates providing vehicular and pedestrian access will be
provided at all entries to the site building whenever possible.
Outdoor courtyard recreation areas are provided to allow passive
recreation activity.
B. Building Design
• Non -Slip flooring surfaces will be utilized throughout the buildings.
• Separate laundry rooms with coin -operated washers and dryers, and a folding
table will be provided at convenient, centralized locations. Computer/crafts areas
will be provided at each of the two residential buildings. Large lounges to
facilitate social interaction will open directly onto each of the two residential
buildings' courtyards.
• An outdoor patio off the Community Room is provided with open views within
the complex.
C. Unit Design
• Blinds will be provided at all windows throughout. The inclusion of blinds
will provide visual continuity from the exterior and will permit draperies,
if desired, on the interior.
• 10 % of the dwelling units are specifically designed for the handicapped.
• 2 % of the dwelling units are specifically designed for the visual and
hearing impaired.
• An electric two door, self -defrosting, 14 cubic foot refrigerator and 24"
electric range will be provided in each Living Unit.
• Carpet will be provided in the living rooms, bedrooms, and halls of all
Living Units.
• The Living Units will have individual space heating and air conditioning
and will have electric service individually metered.
Fair Housing Accessibility Accommodations
The project's design is sensitive to its end -users, our senior citizens. As such, the design team is
concerned with both the residents that currently have disabilities, as well as the residents that
shall be aging in place, and therefore potentially acquiring disabilities in the future. The facility
is accessible on the site planning level, on the public facilities level, and at the individual
resident's unit level. We have taken advantage of the relatively generous, flat site to create a
single -story complex that is tied together by a continuous accessible route for our residents, as
well as public guests.
All building entrances shall be located on this continuous accessible route,
connecting site entry, accessible parking, building entrances, public
amenities/areas, and resident units together.
All usable public and common use areas shall be fully accessible. Again
they are connected to the continuous accessible route. Public telephones,
rest rooms, and water fountains shall be ADA-compliant. The reception
Z
counter shall be at the proper height for wheelchair accessibility. All signage
shall be ADA-complaint.
• All doors shall accessible. Door clearances, hardware, signage, and "efforts to
operate" shall all meet ADA requirements.
• The continuous accessible route throughout the site/complex shall continue into,
and throughout the covered unit.
• All light switches, electrical outlets, thermostats, and other environmental controls
shall be placed in accessible locations in all residential units, as well as all public
and common areas.
• All grab bars installed in the original construction shall be adequately reinforced
within the wall framing system. At all locations where future grab bars could be
placed (such as residential units' bathrooms), adequate reinforcing shall be
provided in original wall framing system, at the proper heights.
• All units are designed to be fully adaptable for persons with disabilities, which
include the design of the kitchens and bathrooms. Adjustable countertops and
removable base cabinets allow for lowering of countertops to wheelchair
accessible height. Sufficient maneuvering space is provided in both the kitchen as
well as the bathroom. Adequate door clearances and hardware are provided at the
bathrooms. All shower enclosures provide appropriate grab bars and benches, as
well as proper water control locations. All units shall have reinforcing to accept
grab bars at the toilets, for future installation when required.
Site Planning
The proposed project takes advantage of its 10-acre site by developing a series of simple, single -
story structures, all within, or exceeding the city of La Quinta's required set backs at all four
property lines. Two single story "X" shaped residential buildings house a total of 80 one -bedroom
units. A centralized Central Amenities Building, housing the reception, offices, community room,
support spaces, and an on -site manager's unit, is located between the two residential buildings. The
"X" shaped buildings maximize light, views, and open spaces for the residential units, while creating
the most efficient and compact layout for a single story complex. A loop road surrounding the
complex evenly distributes resident parking among the units, while providing fire department access
as well. On -grade guest parking is accessed off 47' Avenue, at the entry of the project, and adjacent
to the Central Amenities Building. Both the guest and resident parking areas have Van Accessible
parking for persons with disabilities. The parking areas are landscaped consistent with city design
guidelines. The perimeter yards are reserved for natural landscaping and a walking course for the
residents.
To capitalize on the site parameters, the proposed project is a series of one story, Type V, one -hour
wood frame buildings. The footprints and elevations of the buildings modulate to provide variety in
the building shape and to provide site area for additional landscaping. The development consists of
79 one -bedroom apartment units and one 2-bedroom unit, which is for the on -site manager (total 80
units). The Central Amenities Building has direct views and access to the residential buildings,
capitalizing on site amenities. Taking advantage of the relatively flat site, all areas of the site and the
building are accessible to persons with disabilities.
Exterior Areas
The site security will be provided by fencing and/or walls, in combination with vehicular and
pedestrian controlled access gates/doors at all entrances.
On -grade landscaping will be provided at the front yard, the areas between the buildings, and at the
courtyards at the center of each "X" shaped residential building. Seating for residents will be
provided at each of the courtyards.
Summary
The site complies with hazardous materials requirements, and meets the requirements of the
underlying zone. Utilities are either directly adjacent or extremely close to the site. The
project
2
affordability and location will encourage minority seniors in the neighborhood to become
residents. The site, which meets the HUD site criteria, provides a safe and secure environment,
where residents can live in a home -like atmosphere, while encouraging interaction with other
residents and the La Quinta community.
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ATTACHMENT NO. 7
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
LA QUINTA REDEVELOPMENT AGENCY
78-495 Calle Tampico
La Quinta, California 92253
Attn: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Release of Construction Covenants is recorded
at the request and for the benefit of the La Quinta
Redevelopment Agency and is exempt from the
payment of a recording fee pursuant to Government
Code Section 6103.
RELEASE OF CONSTRUCTION COVENANTS
WHEREAS, SENIOR AFFORDABLE HOUSING CORP. NO. 3, a California nonprofit
public benefit corporation ("Developer"), is the owner in fee of that certain real property more
particularly described in the legal description attached hereto as Exhibit "A" (the "Property");
and
WHEREAS, by a Disposition and Development Agreement (the "Agreement") dated
, 2002, by and between Developer and the La Quinta Redevelopment Agency, a
public body, corporate and politic ("Agency"), Developer has developed the Property according
to the terms and conditions of said Agreement; and
WHEREAS, pursuant to Section 306 of the Agreement, promptly after completion of all
construction work to be completed by Developer on the Property, Agency shall furnish
Developer with a Release of Construction Covenants upon written request therefor by
Developer; and
WHEREAS, the issuance by Agency of this Release of Construction Covenants shall be
conclusive evidence that Developer has complied with the terms of the Agreement pertaining to
the development of the Property; and
WHEREAS, Developer has requested that Agency furnish Developer with this Release of
Construction Covenants; and
WHEREAS, Agency has determined that the development of the Property has been
satisfactorily completed as required by the Agreement.
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NOW, THEREFORE:
1. As provided in the Agreement, Agency does hereby certify that
development of the Property has been fully and satisfactorily performed and completed, and that
such development is in full compliance with said Agreement.
2. This Release of Construction Covenants shall not constitute evidence of
compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or
any insurer of a mortgage, securing money loaned to finance construction work on the Property,
or any part thereof. Nothing contained herein shall modify in any way any other provision of
said Agreement.
3. This Release of Construction Covenants shall not constitute evidence of
Developer's compliance with those covenants in the Agreement that survive the issuance of this
Release of Construction Covenants, or of the covenants in the Regulatory Agreement and
Declaration of Covenants and Restrictions recorded on , 200, as Instrument No.
in the Official Records of Riverside County.
4. This Release of Construction Covenants is not a Notice of Completion as
referred to in California Civil Code Section 3093.
IN WITNESS WHEREOF, Agency has executed this Release of Construction Covenants
as of this day of , 200 .
LA QUINTA REDEVELOPMENT AGENCY, a
public body, corporate and politic
Lo
CONSENT TO RECORDATION
Its:
On behalf of SENIOR AFFORDABLE HOUSING CORP. NO. 3, a California nonprofit
public benefit corporation, I hereby consent to the recordation of this Release of Construction
Covenants against the Property described herein.
Dated:
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SENIOR AFFORDABLE HOUSING CORP. NO.
3, a California nonprofit public benefit corporation
Its:
By: _
Its:
-2-
(L-
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, , personally
appeared personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
ss.
COUNTY OF
Notary Public
On before me, , personally
appeared personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Notary Public
538/015610-0047
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-3-
-
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, , personally
appeared personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Notary Public
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
That certain property located in the City of La Quinta, County of Riverside, State of
California, described as follows:
LOT 285 OF TRACT NO. 24230, IN THE CITY OF LA QUINTA, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 214, PAGE(S) 69 THROUGH 82, INCLUSIVE, OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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2
ATTACHMENT NO. 8
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
LA QUINTA REDEVELOPMENT AGENCY
78-495 Calle Tampico
La Quinta, California 92253
Attn: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Agreement is recorded at the request and for the benefit
of the La Quinta Redevelopment Agency and is exempt from
the payment of a recording fee pursuant to Government Code
Section 6103.
REGULATORY AGREEMENT AND DECLARATION
OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS ("Agreement") is entered into this day of , 2002
("Effective Date"), by and between the LA QUINTA REDEVELOPMENT AGENCY, a public
body, corporate and politic ("Agency"), and SENIOR AFFORDABLE HOUSING CORP. NO.
3, a California nonprofit public benefit corporation ("Owner").
RECITALS
A. Owner is the owner in fee of that certain real property located in the City of La
Quinta, County of Riverside, State of California, legally described in Exhibit "A" attached hereto
and incorporated herein by reference (the "Property").
B. Agency and Owner have entered into a Disposition and Development Agreement
(the "DDA"), dated as of , 2002, concerning the disposition and development of
the Property, which DDA is incorporated herein by reference and is a public record available for
public inspection at Agency's offices. The definitions of all terms in the DDA shall apply to this
Agreement unless otherwise indicated
C. Pursuant to the DDA, Agency conveyed the Property to Owner and Owner agreed
to construct seventy-nine (79) one bedroom affordable senior citizen rental units, one (1) two
bedroom on -site manager's unit, and related improvements, as more particularly described in the
DDA as the "Project."
D. Agency and Owner desire to enter into this Agreement to place certain covenants
and restrictions on Owner's development, use, operation, and maintenance of the Property, all as
set forth herein.
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AGREEMENT
Based upon the foregoing Recitals and for good and valuable consideration, the receipt
and sufficiency of which is acknowledged by both parties, Agency and Owner agree as follows:
1. Definitions. The following terms as used in this Agreement shall have the
meanings given below unless expressly provided to the contrary:
The term "Affordable Rent" shall mean the following rate (which shall include a
Utility Allowance): annual rentals whose amount does not exceed the maximum percentage of
income that can be devoted to rent by Very Low Income Tenants (which is 30% of 50% of the
Area Median Income, adjusted for family size appropriate for the unit).
The term "Area Median Income" means the median household income for the
County of Riverside, as annually estimated by the United States Department of Housing and
Urban Development pursuant to Section 8 of the United States Housing Act of 1937. In the
event these federal determinations of Area Median Income are discontinued, the Area Median
Income shall be the income limits established by the Department of Housing and Community
Development in accordance with Health and Safety Code Section 50093.
The term "Eligible Tenant" shall mean a tenant of one of the Residential Units
within the Project who, as of the commencement date of his or her occupancy, satisfies both of
the following requirements: (i) the person is a Very Low Income Tenant; and (ii) the person is a
"qualifying resident" or "senior citizen" within the meaning of California Civil Code Section
51.3. A person who is "qualified permanent resident," "cohabitant," or "permitted health care
resident" within the meaning of California Civil Code Section 51.3 and who resides with the
Eligible Tenant described above shall also be considered an "Eligible Tenant"; provided,
however that such person shall be entitled to reside in a Residential Unit only to the extent
occupancy is permitted under Civil Code Section 51.3.
The term "Initial Term" shall mean the period commencing on the Effective Date
and continuing until the later of the following: (i) the date that is forty (40) years after the date
of the first occupancy of a Residential Unit; or (ii) the expiration of the period of time defined in
the DDA as the Term of the HUD Capital Advance Documents.
The term "Low or Moderate Income Tenant" shall mean persons and families
whose income does not exceed one hundred twenty percent (120%) of the Area Median Income,
adjusted for family size in accordance with the adjustment factors adopted and amended from
time to time by the United States Department of Housing and Urban Development pursuant to
Section 8 of the United States Housing Act of 1937. If the Second Term Condition is satisfied,
during the Second Term, the Residential Units must be rented to Low or Moderate Income
Tenants.
The term "Project" shall have the meaning ascribed in Recital C.
The term "Residential Unit" shall refer to all of the residential units on the
Property excluding only the on -site manager's unit.
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The term "Second Term" shall mean the period commencing on the first day
following the expiration of the Initial Term and continuing thereafter for a period of fifteen (15)
years, but not to exceed the date that is fifty-five (55) years after the date of the first occupancy
of a Residential Unit.
The term "Second Term Affordable Rent" shall mean the following rate (which
shall include a Utility Allowance): annual rentals whose amount does not exceed the maximum
percentage of income that can be devoted to rent by Low or Moderate Income Tenants (which is
35% of 110% of the Area Median Income, adjusted for family size appropriate for the unit).
The term "Second Term Condition" shall have the meaning ascribed in Section 6
of this Agreement.
The term "Second Term Eligible Tenant" shall mean a tenant of one of the
Residential Units within the Project who, as of the commencement date of his or her occupancy,
satisfies both of the following requirements: (i) the person is a Low or Moderate Income Tenant;
and (ii) the person is a "qualifying resident" or "senior citizen" within the meaning of California
Civil Code Section 51.3. A person who is "qualified permanent resident," "cohabitant," or
"permitted health care resident" within the meaning of California Civil Code Section 51.3 and
who resides with the Eligible Tenant described above shall also be considered an "Eligible
Tenant"; provided, however that such person shall be entitled to reside in a Residential Unit only
to the extent occupancy is permitted under Civil Code Section 51.3.
The term "Utility Allowance" shall mean that amount required for utilities which
are not paid for by Owner.
The term "Very Low Income Tenant" shall mean persons and families whose
income does not exceed fifty percent (50%) of the Area Median Income, adjusted for family size
in accordance with the adjustment factors adopted and amended from time to time by the United
States Department of Housing and Urban Development pursuant to Section 8 of the United
States Housing Act of 1937.
2. Duration of Covenants. The covenants set forth in this Agreement shall remain in
effect from the Effective Date and continue until the expiration of the Second Term. As further
described in Section 6 of this Agreement, if the Second Term Condition is satisfied, the
affordability covenants and income levels required during the Initial Term will be different from
those required during the Second Term.
3. Development of Project. Owner hereby covenants and agrees that Owner shall
develop the Project on the Property within the times and subject to the terms and conditions set
forth in the DDA.
4. Use. Owner shall operate the Property as an affordable senior rental project
pursuant to the terms set forth in this Agreement.
5. Occupancy Levels. The number of persons permitted to occupy each Residential
Unit shall not exceed the occupancy permitted pursuant to the general requirements of the United
States Department of Housing and Urban Development, which as of the date of this Agreement
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is two persons per bedroom, plus one person (e.g., for a two bedroom unit the maximum number
of persons residing in the unit can be five persons). The lease for each unit shall include a
provision limiting the number of persons permitted to occupy each Residential Unit in
accordance with the preceding sentence and Owner shall enforce such occupancy restrictions.
6. Income Eligibility: Affordable Rent.
a. Affordability Covenants. During the term of this Agreement, the
Residential Units are to be rented to and occupied only by Eligible Tenants, with each unit to be
rented at no greater than Affordable Rent. A Residential Unit occupied by a tenant who qualifies
as an Eligible Tenant at the commencement of the occupancy shall be treated as occupied by an
Eligible Tenant at such income level until a recertification of such Eligible Tenant's income in
accordance with Section 8 below demonstrates that such tenant no longer qualifies as an Eligible
Tenant at that income level.
b. Second Term Condition. Owner desires to expand the income category
required by this Agreement to low or moderate income including very low income upon the
commencement of the Second Term. Agency has agreed to permit this change in the income
category provided that Agency receives confirmation that a determination has been made that (i)
the change will not jeopardize Agency's ability to count the Residential Units towards the
Agency's very low income housing requirements under the Community Redevelopment Law
(Health & Safety Code §§ 33000 et seq.), including without limitation Agency's production
housing requirements, and (ii) the financial assistance provided to Owner by Agency from
Agency's Low and Moderate Income Housing Fund for the construction and maintenance of the
Project will continue to qualify as funds used for the production of very low income housing for
the purpose of the Community Redevelopment Law (collectively, the "Second Term
Condition"'). The occurrence of either of the following, shall satisfy the requirement that "a
determination has been made" within the meaning of the preceding sentence: (i) a court having
jurisdiction has rendered a final, non -appealable judgment in a judicial validation action as to the
satisfaction of the Second Term Condition, or (ii) the California Department of Housing and
Community Development and any other regulatory or public agency with jurisdiction has
provided Agency written confirmation as to the satisfaction of the Second Term Condition. If
the Second Term Condition is satisfied, during the Second Term, the references in this
Agreement to the term "Eligible Tenant" shall be deemed to mean "Second Term Eligible
Tenant" as defined in Section 1, and the references to the term "Affordable Rent" shall be
deemed to mean "Second Term Affordable Rent" as defined in Section 1. If the Second Term
Condition is not satisfied, however, the terms "Eligible Tenant" and "Affordable Rent" shall
continue to have the meaning given to those terms in Section 1 for the entire term of this
Agreement.
7. Determination of Eligible Tenants. Owner shall make a good faith reasonable
effort to determine the age and income eligibility of each prospective tenant prior to allowing the
tenant to occupy a Residential Unit. Notwithstanding any other provision set forth in this
Agreement to the contrary, in determining the age and income eligibility of a prospective tenant,
Owner shall be entitled to rely upon documentation provided by the prospective tenant and
Owner shall not be required to do any further or independent investigation or verification of the
information provided by the prospective tenant. In the event Owner rents a Residential Unit to a
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tenant who is not an Eligible Tenant due to false information provided by the prospective tenant,
Owner shall not be deemed to be in default of its obligations set forth in this Agreement;
provided, however, that within a reasonable time after receiving such information, Owner shall
take steps to terminate the tenancy of such tenant and re -let the Residential Unit to an Eligible
Tenant.
8. Tenant Recertification. Immediately prior to the first anniversary date of the
occupancy of a Residential Unit by an Eligible Tenant and on each anniversary date thereafter,
Owner shall recertify the income of such Eligible Tenant. Notwithstanding any other provision
set forth in this Agreement to the contrary, if, after performing such recertification, Owner
determines that the tenant's household income exceeds the income at which such tenant would
qualify as an Eligible Tenant, Owner at its option may permit the tenant to continue to reside in
such Residential Unit, provided that Owner may increase the rent for such Residential Unit to an
amount not greater than the "fair market rent" for comparable units in the area, as said amount is
determined from time to time by the Housing Authority of the County of Riverside or other
similar governmental housing agency.
9. Rental Agreements. The form of rental agreement between Owner and each of
the tenants of the Residential Units shall obligate the tenants to comply with the provisions set
forth in this Agreement. Not by way of limitation of the foregoing, each lease for a Residential
Unit shall contain a provision to the effect that Owner has relied on the age and income
certification and supporting information supplied by the tenant in determining qualification for
occupancy of the Residential Unit, and that any material misstatement in such certification
(whether or not intentional) will be cause for immediate termination of such lease. In addition,
each lease for a Residential Unit shall contain a provision permitting Agency to review any of
Owner's books and records relating to whether the tenant is an Eligible Tenant hereunder and
waiving any privacy or other rights the tenant may have that otherwise might prevent such
disclosure. The initial form rental agreement to be utilized by Owner for the Residential Units,
and any changes to such form rental agreement, shall be approved by Agency's Executive
Director, which approval shall not be unreasonably withheld, prior to the initial use of the lease
form and, each time the form is changed, prior to the first use of the changed form. Agency's
Executive Director shall approve or disapprove the rental agreement (or changes thereto, as
applicable) within fifteen (15) days of Owner's submittal. During the Term of the HUD Capital
Advance Documents, the form of lease approved by HUD shall be deemed approved by Agency.
10. Annual Reports. On or before August 1 of each fiscal year (July 1 - June 30) or
partial fiscal year, Owner shall submit or cause to be submitted to Agency's Executive Director
the annual report required pursuant to Health and Safety Code Section 33418, as the same may
be amended from time to time, in the form prescribed by Agency.
11. Books and Records. Owner shall maintain complete and accurate records
pertaining to the Residential Units for a minimum period of four (4) years and shall permit any
duly authorized Agency representative to inspect such books and records.
12. Repair and Maintenance of Property. Owner shall maintain or cause to be
maintained all improvements that may exist on the Property from time to time in first class
condition and repair (and, as to landscaping, in a healthy condition) (including without limitation
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-5-
L�
any approved landscape plans), as the same may be amended from time to time, and all other
applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal,
and other governmental agencies and bodies having or claiming jurisdiction and all their
respective departments, bureaus, and officials. In addition, Owner shall (i) keep the Property or
cause the Property to be kept free from all graffiti and any accumulation of debris or waste
material and (ii) keep all trash containers out of public view during non -trash days and otherwise
maintained in accordance with applicable requirements of Agency or any other governmental
agency with jurisdiction. Owner shall make all repairs and replacements necessary to keep the
improvements in first class condition and repair and shall promptly eliminate all graffiti and
replace dead and diseased plants and landscaping with comparable approved materials. In the
event that Owner breaches any of the covenants contained in this Section 12, and such default
continues for a period of one (1) day after written or verbal notice from Agency (with regard to
maintenance and removal of trash containers), five (5) business days after written or verbal
notice from Agency (with respect to landscaping, graffiti, debris, waste material, or general
maintenance) or thirty (30) days after written notice from Agency (with respect to building
improvements), then Agency, in addition to whatever other remedy it may have at law or in
equity, shall have the right to enter upon the Property and perform or cause to be performed all
such acts and work necessary to cure the default. Pursuant to such right of entry, Agency shall
be permitted (but not required) with due notice and without disturbing the tenants to enter upon
the Property and perform all acts and work necessary to protect, maintain, and preserve the
improvements and landscaped areas on the Property, and to attach a lien on the Property, or to
assess the Property, in the amount of the expenditures arising from such acts and work of
protection, maintenance, and preservation by Agency and/or costs of such cure, including a
fifteen percent (15%) administrative charge, which amount shall be promptly paid by Owner to
Agency upon demand. Notwithstanding the foregoing, during the Term of the HUD Capital
Advance Documents, there shall be no entry by Agency to perform such acts and work without
the prior written approval of HUD, except in the event of an emergency, and any entry shall be
upon at least forty-eight (48) hours notice to the Owner except in the event the nature of the
emergency requires a shorter notice period. In addition, during the Term of the HUD Capital
Advance Documents, (i) Agency shall not be permitted to attach a lien on the Property pursuant
to this Section 12; and (ii) the 15% administrative charge described above shall be payable only
from residual receipts if approved by HUD.
13. Insurance Obligations.
a. Duty to Procure Insurance. Owner, for the term of this Agreement, shall
procure and keep in full force and effect or cause to be procured and kept in full force and effect
for the mutual benefit of Owner and Agency, and shall provide Agency evidence reasonably
acceptable to Agency Executive Director, insurance policies meeting the minimum requirements
set forth below:
(i) Commercial General Liability insurance with respect to the
Property and the operations of or on behalf of Owner, in an amount not less than
One Million Dollars ($1,000,000) per occurrence combined single limit including
products, completed operations, contractual, bodily injury, personal injury, death
and property damage liability per occurrence, subject to such increases in amount
as Agency may reasonably require from time to time; provided, that the
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percentage increase in coverage shall not be required to exceed the percentage
increase in the Consumer Price Index published by the United States Department
of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical
Workers, Los Angeles -Long Beach -Anaheim Average, All Items (1984 ` 100)
(the "Index"), from and after the date of this Agreement, or, if said Index is
discontinued, such official index as may then be in existence and which is most
nearly equivalent to said Index (the "CPI Adjustment"). Unless otherwise
approved in advance by the Agency Executive Director, the insurance to be
provided by Owner may provide for a deductible or self -insured retention of not
more than Ten Thousand Dollars ($10,000), with such maximum amount to
increase at the same rate as the periodic increases in the minimum amount of total
insurance coverage set forth above.
(ii) With respect to the improvements and any fixtures and furnishings
to be owned by Owner on the Property, insurance against fire, extended coverage,
vandalism, and malicious mischief, and such other additional perils, hazards, and
risks as now are or may be included in the standard "all risk" form in general use
in Riverside County, California, with the standard form fire insurance coverage in
an amount equal to full actual replacement cost thereof, as the same may change
from time to time. The above insurance policy or policies shall include coverage
for earthquake to the extent generally and commercially available at commercially
reasonable rates. Agency shall be a loss payee under such policy or policies and
such insurance shall contain a replacement cost endorsement.
b. Policy Requirements. All policies of insurance required to be carried by
Owner shall meet the following requirements and contain the following endorsements,
provisions, or clauses (as applicable):
(i) The policies shall be written by responsible and solvent insurance
companies licensed in the State of California and having a policyholder's rating of
A or better, in the most recent addition of `Best's Key Rating Guide -- Property
and Casualty." A copy of each paid -up policy evidencing such insurance
(appropriately authenticated by the insurer) or a certificate of the insurer,
certifying that such policy has been issued, providing the coverage required
herein, and containing the provisions specified herein, shall be delivered to
Agency on or prior to the date of this Agreement, and thereafter, upon renewals,
not less than thirty (30) days prior to the expiration of coverage. Agency may, at
any time, and from time to time, inspect and/or copy any and all insurance
policies required to be procured by Owner hereunder. In no event shall the limits
of any policy be considered as limiting the liability of Owner hereunder.
(ii) The insurer shall not cancel or materially alter the coverage
provided by such policy in a manner adverse to the interest of the insured without
first giving Agency a minimum of thirty (30) days prior written notice by certified
mail, return receipt requested; and
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A
(iii) A waiver by the insurer of any right to subrogation against
Agency, its officers, officials, members, employees, agents, or representatives,
which arises or might arise by reason of any payment under such policy or
policies or by reason of any act or omission of Agency, its officers, officials,
members, employees, agents, or representatives.
(iv) The Agency and the City and its respective officers, officials,
members, employees, agents, and representatives shall be named as additional
insureds on the Commercial General Liability policies.
(v) Coverage provided by these policies shall be primary and non-
contributory to any insurance carried by the Agency or its officers, officials,
members, employees, agents, or representatives.
(vi) Failure to comply with reporting provisions shall not affect
coverage provided to Agency and its officers, officials, members, employees,
agents, or representatives.
14. Repair of Daman.
a. Obligation to Repair and Restore Damage Due to Casualty Covered by
Insurance. If the Project shall be totally or partially destroyed or rendered wholly or partly
uninhabitable by fire or other casualty required to be insured against by Owner, Owner shall
promptly proceed to obtain insurance proceeds and take all steps necessary to begin
reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently
commence the repair or replacement of the Project to substantially the same condition as the
Project is required to be maintained in pursuant to this Agreement, whether or not the insurance
proceeds are sufficient to cover the actual cost of repair, replacement, or restoration, and Owner
shall complete the same as soon as possible thereafter so that the Project can continue to be
operated and occupied as a senior housing project in accordance with this Agreement. In no
event shall the repair, replacement, or restoration period exceed one (1) year from the date
Owner obtains insurance proceeds unless Agency's Executive Director, in his or her sole and
absolute discretion, approves a longer period of time. If, however, the then -existing laws of any
governmental agencies with jurisdiction over the Property do not permit the repair, replacement,
or restoration, Owner may elect not to repair, replace, or restore the Project by giving notice to
Agency (in which event Owner shall be required to remove all debris from the Property) or
Owner may reconstruct such other improvements on the Property as are consistent with
applicable land use regulations and approved by the Agency, and any other governmental agency
or agencies with jurisdiction.
b. Application of Insurance Proceeds. All insurance monies received on
account of damage or destruction, less the cost, if any, of such recovery, shall be applied as
necessary to the payment of the cost of repairing, replacing, and restoring the improvements
comprising the Project. Except as otherwise provided herein, if net available insurance monies
shall be insufficient to pay the entire cost of such work, or if the damage or destruction shall be
the result of a cause not required to be insured against, then Owner shall bear the cost thereof in
excess of the net available insurance monies.
538/015610-0047
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C. Continued Operations. During any period of repair, Owner shall continue,
or cause the continuation of, the operation of the housing complex on the Property to the extent
reasonably practicable from the standpoint of prudent business management.
d. Damaee or Destruction Due to Cause Not Required to be Covered by
Insurance. If the improvements comprising the Project are completely destroyed or substantially
damaged by a casualty for which Owner is not required to insure against (and has not insured
against), then Owner shall not be required to repair, replace, or restore such improvements and
may elect not to do so by providing Agency with written notice of election not to repair, replace,
or restore within ninety (90) days after such substantial damage or destruction. In such event,
Owner shall remove all debris from the Property. As used in this subparagraph (d), "substantial
damage" caused by a casualty not required to be (and not) covered by insurance shall mean
damage or destruction which is fifty percent (50%) or more of the replacement cost of the
improvements comprising the Project. In the event Owner does not timely elect not to repair,
replace, or restore the improvements as set forth in the first sentence of this subparagraph (d),
Owner shall be conclusively deemed to have waived its right not to repair, replace, or restore the
improvements and thereafter Owner shall promptly commence and complete the repair,
replacement, or restoration of the damaged or destroyed improvements in accordance with
subparagraphs (a) and (b) above and continue operation of the housing complex during the
period of repair (if practicable) in accordance with subparagraph (c) above.
e. HUD Insurance Provisions. During the Term of the HUD Capital
Advance Documents, the rights and obligations set forth in this Section 14 shall be subject to the
rights of HUD as holder of the first lien on the Project. In connection therewith, in the event of
loss covered by fire and extended coverage insurance, the insurance proceeds, to the extent of the
HUD Capital Advance then remaining unpaid, shall be paid to the beneficiary of the HUD deed
of trust and, at the option of the beneficiary, may be applied to the HUD Capital Advance or
released for the repair or rebuilding of the Project. Any balance remaining of insurance proceeds
shall be paid to the additional insured and, at the option of such additional insured, may be
applied to the indebtedness owed to such insured or be released for repair or rebuilding of the
Project. Surplus insurance proceeds thereafter may be dispersed to the Owner of the Project.
15. Indemnity. Owner shall indemnify, defend, and hold harmless Agency, and
Agency's officers, officials, members, employees, agents, and representatives (collectively,
"Agency Indemnitees") from and against any loss, liability, claim, or judgment relating in any
manner to the development or use of the Property, excluding any liability caused by the gross
negligence or willful misconduct of the Agency Indemnitees.
16. Taxes and Assessments. Owner shall pay, prior to delinquency, all property taxes
and assessments in connection with the Property; provided, however, that nothing herein shall
prohibit or prevent Owner from challenging the applicability or amount of any tax or assessment
pursuant to the applicable procedures required by law.
17. Compliance with Laws. Owner shall comply with all applicable laws,
regulations, and rules of any governmental agencies having jurisdiction with regard to the
construction of the Project and any activities conducted on the Property, including the operation
of the Project and the Lease of the Residential Units.
538/015610-0047
247806.06 PM02 -9- �`
18. Covenants Run with the Land. All conditions, covenants, and restrictions
contained in this Agreement shall be covenants running with the land, and shall, in any event,
and without regard to technical classification or designation, legal or otherwise, be, to the fullest
extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by
Agency, its successors and assigns, and the City of La Quinta and its successors and assigns,
against Owner, its successors and assigns, to or of the Property conveyed herein or any portion
thereof or any interest therein, and any party in possession or occupancy of said Property or
portion thereof.
In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that Agency and the City are each deemed a beneficiary of the agreements,
covenants, and restrictions provided hereinabove both for and in its own right and also for the
purposes of protecting the interests of the community. All covenants without regard to technical
classification or designation shall be binding for the benefit of Agency and the City and such
covenants shall run in favor of Agency and City for the entire period during which such
covenants shall be in force and effect, without regard to whether Agency is or remains an owner
of any land or interest therein to which such covenants relate. However, all such covenants and
restrictions shall be deemed to run in favor of all real property owned by the City and Agency
which real property shall be deemed the benefited property of such covenants. Furthermore, all
of the covenants, conditions, and restrictions contained herein shall also constitute easements in
gross running in favor of the Agency and City. Agency shall have the right, in the event of any
breach of any such agreement or covenant, to exercise all the rights and remedies, and to
maintain any action at law or suit in equity or other proper proceedings to enforce the curing of
such breach of agreement or covenant.
19. Gross Mismana eg ment. Owner shall manage or cause the Property to be
managed in a prudent and business -like manner. In the event of "Gross Mismanagement" (as
that term is defined below) of the Project, Agency shall have the authority to require that such
Gross Mismanagement cease immediately, and further to require the immediate replacement of
the Manager; provided, however, Agency acknowledges that during the Term of the Capital
Advance Documents the manager cannot be replaced without the prior written approval of HUD.
Agency shall provide written notice to Owner of the event(s) of Gross Mismanagement
occurring and Owner shall have five (5) days after receipt of such notice to cure, correct, or
remedy the event(s) of Gross Mismanagement identified in the Agency's notice and to notify the
Agency Executive Director of the cure, correction, or remedy. For purposes of this Agreement
the term "Gross Mismanagement" shall mean management of the Project in a manner which
violates the terms and/or intention of this Agreement to operate a senior housing complex of the
highest standard, and shall include, but is not limited to, the following:
(i) Knowingly leasing to ineligible tenants or tenants whose income
exceeds the prescribed levels;
(ii) Knowingly allowing the tenants to exceed the prescribed
occupancy levels without taking immediate steps to stop such overcrowding;
538/015610-0047
247806.06 PM02 -1 0-
(iii) Failing to timely maintain the Project and the Property in the
manner required by this Agreement or failing to submit materially complete
reports;
(iv) Failing to timely submit the reports as required by this Agreement;
(v) Fraud in connection with any document or representation relating
to this Agreement or embezzlement of Project monies; and
(vi) Failing to fully cooperate with the Police Department in
maintaining a crime -free environment on the Property.
20. Modification of Agreement. Agency and its successors and assigns, and Owner
and the successors and assigns of Owner 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, conditions, or restrictions contained in this Agreement 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. Any amendment or
modification to this Agreement must be in writing and signed by Agency and Owner, or their
successors and assigns, and during the Term of the HUD Capital Advance Documents shall also
require the approval of HUD.
21. Recomition of HUD Agreement. Notwithstanding anything herein to the
contrary, in the event the Secretary of HUD ("HUD Secretary"), during the Tenn of the HUD
Capital Advance Documents, should take title to the Property through foreclosure, deed in lieu of
foreclosure, or otherwise, all covenants, conditions and restrictions set forth in this Agreement
shall cease and terminate and be of no further force and effect.
Notwithstanding anything herein to the contrary, if, during the Term of the HUD Capital
Advance Documents, any provision of this Agreement tends to contradict, modify or in any way
change the terms of the HUD Capital Advance Documents, including the HUD Regulatory
Agreement encumbering the Property to be entered into between the HUD Secretary and the
Owner, the terms of the HUD Capital Advance Documents shall prevail and govern; or if any
provision of this Agreement in any way tends to limit the HUD Secretary in his administration of
the Housing Act of 1959, as amended, or the Cranston -Gonzalez National Affordable Housing
Act, or the regulations issued pursuant thereto, this Agreement shall be deemed amended so as to
comply with the Acts, the regulations and the aforementioned HUD Capital Advance
Documents. Owner shall not be in default of this Agreement for failure to comply with any term
or provision that is inconsistent with the HUD Capital Advance Documents.
22. Intemretation; Governing Law,• Forum. This Agreement shall be construed
according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be
construed in accordance with the laws of the State of California. Titles and captions are for
convenience only and shall not constitute a portion of this Agreement. In the event of any
litigation between the parties hereto, the Municipal and Superior Courts of the State of California
in and for the County of Orange shall have exclusive jurisdiction.
538/015610-0047
247806.06 PM02 -11-
1�
23. Assignment. Except as permitted in Section 106 of the DDA, Owner shall not
assign this Agreement or any interest in the Property.
24. Execution in Counterpart. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on both parties hereto,
notwithstanding that both parties are not signatories to the original or the same counterpart.
[SIGNATURES ON NEXT PAGE
538/015610-0047
247806.06 PM02 -12-
IN WITNESS WHEREOF, Agency and Owner have caused this instrument to be
executed on their behalf by their respective officers or agents herein duly authorized as of the
date first written above.
ATTEST:
Agency Secretary
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
Its:
• ;
SENIOR AFFORDABLE HOUSING CORP.
NO. 3, a California non-profit, public benefit
corporation
By:
Its:
By:
Its:
538/015610-0047
247806.06 PM02 -13 _ r7�
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, personally
appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
ss.
COUNTY OF
Notary Public
On before me, , personally
appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Notary Public
538/015610-0047
247806.06 PM02 -14-
1�
STATE OF CALIFORNIA
COUNTY OF
On
appeared _
ss.
before me, , personally
personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
538/015610-0047
247806.06 PM02 -1 5- '(�
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
That certain property located in the City of La Quinta, County of Riverside, State of
California, described as follows:
LOT 285 OF TRACT NO. 24230, IN THE CITY OF LA QUINTA, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 214, PAGE(S) 69 THROUGH 82, INCLUSIVE, OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
538/015610-0047 v
247806.06 PM02
ATTACHMENT NO.9
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Attn: Executive Director
(Space Above For Recorder's Use)
This Memorandum of Disposition and Development
Agreement is recorded at the request and for the benefit of
the La Quinta Redevelopment Agency and is exempt from
the payment of a recording fee pursuant to Government
Code Section 6103.
MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
THIS MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
("Memorandum") is entered into this _ day of , 2002, by and between
the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic
("Agency"), and SENIOR AFFORDABLE HOUSING CORP. NO. 3, a California nonprofit
public benefit corporation ("Developer").
This Memorandum is made with reference to the following:
1. On or about the date of this Memorandum, Developer acquired from Agency fee
title to that certain real property located in the City of La Quinta, County of Riverside, State of
California, more particularly described in the legal description attached hereto as Exhibit "A"
and incorporated herein by this reference (the "Property").
2. On or about October , 2002, Agency and Developer
entered into that certain Disposition and Development Agreement which provides for Developer
to develop an affordable housing senior rental project on the Property. The definitions of all
terms contained in the Disposition and Development Agreement shall apply to this
Memorandum.
3. The Disposition and Development Agreement provides for Agency and
Developer to enter into this Memorandum and to record the same in the Official Records of the
County of Riverside to provide notice to all persons of the existence of said Disposition and
Development Agreement and to cause the Disposition and Development Agreement to run with
the Property and be binding on Owner and Owner's successors -in -interest as to the Property.
538/015610-0047
247806.06 a10/10/02 -1-
F��
4. The parties wish to memorialize .that Section 701 of the Disposition and
Development Agreement provides as follows:
Notwithstanding anything herein to the contrary, in the event the Secretary of
HUD ("HUD Secretary"), during the Term of the HUD Capital Advance
Documents, should take title to the Site through foreclosure, deed in lieu of
foreclosure, or otherwise, all covenants, conditions and restrictions set forth in
this Agreement shall cease and terminate and be of no further force and effect.
Notwithstanding anything herein to the contrary, if, during the Term of the HUD
Capital Advance Documents, any provision of this Agreement tends to contradict,
modify or in any way change the terms of the HUD Regulatory Agreement
encumbering the real property described in such Agreement to be entered into
between the HUD Secretary and the Developer, the terms of the HUD Regulatory
Agreement shall prevail and govern; or if any provision of this Agreement in any
way tends to limit the HUD Secretary in his administration of the Housing Act of
1959, as amended, or the Cranston -Gonzalez National Affordable Housing Act, or
the regulations issued pursuant thereto, this Agreement shall be deemed amended
so as to comply with the Acts, the regulations and the aforementioned HUD
Regulatory Agreement.
Notwithstanding anything in this Agreement to the contrary, during the Term of
the HUD Capital Advance Documents, no amendment to this Agreement shall be
effected without the prior written approval of the HUD Secretary, his successor or
assigns.
5. This Memorandum may be executed in several counterparts, and all so executed
shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are
not signatories to the original or the same counterpart.
538/015610-0047 - , -
247806.06 a10/10/02
IN WITNESS WHEREOF, Agency and Developer have entered into this Memorandum
as of the date first set forth above.
"DEVELOPER"
SENIOR AFFORDABLE HOUSING CORP. NO. 3,
a California non-profit, public benefit corporation
By:
Its:
By:
Its:
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY, a
public body, corporate and politic
Its: Executive Director
ATTEST:
Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta
Redevelopment Agency
538/015610-0047
247806.06 a10/10/02 —3— ��
STATE OF CALIFORNIA
ss.
COUNTY OF
On before me, , personally
appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
ss.
COUNTY OF
Notary Public
On before me, , personally
appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
538/015610-0047
247806.06 a10/10/02 —4— �//
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, , personally
appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Notary Public
r�
538/015610-0047
247806.06 a10/10/02 -5-
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
That certain property located in the City of La Quinta, County of Riverside, State of
California, described as follows:
LOT 285 OF TRACT NO. 24230, IN THE CITY OF LA QUINTA, COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 214, PAGE(S) 69 THROUGH 82, INCLUSIVE, OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
a
538/015610-0047
247806.06 a10/10/02
ATTACHMENT NO. 10
PROJECT BUDGET
[ATTACHED]
538/015610-0047
247806.06 a10/10/02
ATTACHMENT NO. 10
PROJECT BUDGET FOR LA QUINTA SENIOR HOUSING
8/ 16/02
COSTS:
Construction, building permits, bonds:
$
7,482,305
Architectural fees:
$
385,000
Other fees:
$
759,095
Site development Permits: $2,000
Environmental assessments: $3,550
Plan check/permits: $142,235
Engineering: $5,250
Fire Department: $1,670
Health: $179
School fees: $102,500 (actually $27,500)
Water/sewer fees: $350,325
Electric connection assumed: $104,000 (high -Mike
Checking on this)
Survey assumed: $6,500
Soils assumed: $3,900
Cost analyst assumed: $9,700
Cost certification (contractor): $7,000
Archeological: $1,375
Appraisal: $3,000
Phone connections: $2,000
Phase II: $13,610
Phase I: 41,600
Gas Department: $15,000
Pool design: $6,000
Insurance:
$
40,000
Taxes:
$
20,000
Developer Fee:
$
506,000
Consultant: $ 50,000
Contingency: $205,408
Organizational costs$250,592
Cost Certification/audit:
$
7,000
Legal:
$
28,000
Title and Recording:
$
20,000
Land:
$
1,000,000
Total costs:
$10,247,400
Plus amenity escrow
$
142,000
Plus off -sites:
$
75,000
TOTAL COSTS:
$10,464,400
FUNDS AVAILABLE:
HUD Grant: $ 9,577,400
City Grant: $ 887,000
Total funds available: $10,464,400
City Funds:
Amenty escrow for pool and patios:
$
142,000
Patios:
$
80,000
Carports:
$
50,000
Excess parking/landscaping:
$
300,000
Metal trellises:
$
125,000
Pool:
$
50,000
Architectural fees for amenities/design:
$
65,000
Off -sites:
$
75,000
Total City funds: $ 887,000
ti