Building Horizons/Afford Housing 062006 - 2007 AFFORDABLE HOUSING AGREEMENT
BY AND BETWEEN
LA QUINTA REDEVELOPMENT AGENCY, AGENCY
AND
BUILDING HORIZONS, DEVELOPER
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Table of Contents
I. [1001 SUBJECT OF AGREEMENT........................................................... 1
A. [101 Purpose of Agreement.......................................................... 1
B. [ 1021 The Redevelopment Plan ..................................................... 1
C. [1031 The Site............................................................................
D. [ 1041 Parties to the Agreement..................................................... 2
1. [ 1051 The Agency....................................................................
2.[1061 The Developer................................................................. 2
.3.[1071 Prohibition Against Change in Ownership, Management
and Control of Developer and Prohibition Against
Transfer of the Site........................................................2
E. [1081 Representations by the Developer ......................................... 3
II. [2001 AGENCY ASSISTANCE................................................................ 4
A. [2011 Acquisition and Construction Financing ................................. 4
B. [2021 Conditions Precedent to the Funding of Acquisition Financing .. 4
C. [2031 Home Buyer Loan and Second Trust Deed ............................. 5
D. [2041 Acquisition of the Site .........................................................
E. [2051 Escrow..............................................................................
F. [2061 Conveyance to Eligible Persons and Families .......................... 7
II. [3001 DEVELOPMENT OF THE SITE ....................................................... 7
A. [3011 Development of the Site ...................................................... 7
1.[3021 Scope of Development..................................................... 7
2.[3031 Site Plan........:................................................................ 8
3.[3041 Review and Approval of Plans, Drawings, and
Related Documents...................................................... 8
4.[3051 Cost of Development....................................................... 9
5.[3061 Construction Schedule ..................................................... 9
6.[3071 Indemnity, Bodily Injury and Property Damage Insurance ...... 9
7.[3081 City and Other Governmental Agency Permits....................10
8.[3091 Rights of Access............................................................ 1
9.[3101 Local, State and Federal Laws..........................................10
10.[3111 Anti-Discrimination........................................................10
1 1.[3121 Taxes and Assessments................................................11
B. [3131 Prohibition Against Transfer of the Site, the Buildings or
Structures Thereon and Assignment of Agreement.............1 1
C. [3141 Right of the Agency to Satisfy Other Liens on the Site(s)
After Title Passes...........................................................1 1
D. [3151 Certificate of Completion...................................................1 1
IV. [4001 USE OF THE SITE......................................................................12
A. [4011 Affordable Housing...........................................................12
B. [4021 Uses In Accordance with Redevelopment Plan;
Nondiscrimination...........................................................19
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C. [403] Effect of Violation of the Terms and Provisions of this
Agreement After Completion of Construction ....................20
D. [404] Maintenance of the Site.....................................................21
V. [500]
DEFAULTS AND REMEDIES.........................................................21
A.
[501 ] Defaults -- General.............................................................21
B.
[502] Legal Actions....................................................................
21
1. [503] Institution of Legal Actions.............................................21
2. [504] Applicable Law..............................................................22
3. [505] Acceptance of Service of Process....................................22
C.
[506] Rights and Remedies Are Cumulative...................................22
D.
[507] Inaction Not a Waiver of Default.........................................22
E.
[508] Remedies and Rights of Termination....................................22
1. [509] Damages......................................................................22
2. [510] Specific Performance.....................................................23
3. [51 1 ] Right of Termination by the Developer .............................23
4. [512] Termination by the Agency.............................................23
F.
[513] Remedies of the Parties for Default After Closing of
the Acquisition Escrow...................................................24
1. [514] Termination and Damages..............................................24
VI. [600] GENERAL PROVISIONS...............................................................24
A [601 ] Notices, Demands and Communications Between Parties .......24
B. [602] Conflicts of Interest...........................................................24
C. [603] Enforced Delay; Extension of Times of Performance ..............24
D. [604] Non -Liability of Officials and Employees of the Agency
andthe Developer.........................................................25
E. [605] Entire Agreement, Waivers.................................................25
VII. [700] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ................26
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ATTACHMENTS
Attachment No. 1
Scope of Development
Attachment No. 2
Schedule of Performance
Attachment No. 3
Developer Promissory Note
Attachment No. 4
Developer Deed of Trust
Attachment No. 5
Declaration of Conditions, Covenants and Restrictions
Attachment No. 6
Certificate of Completion
Attachment No. 7
Maximum Sales Price Example
Attachment No. 8
Certificate of Proposed Transferee
Attachment No. 9
Notice of Intent to Transfer
Attachment No. 10Request for Approval of Proposed Transferee
Attachment No. 11 Assumption Agreement
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AFFORDABLE HOUSING AGREEMENT
This Affordable Housing Agreement ("Agreement") is entered into by and
between LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and
politic (the "Agency") and BUILDING HORIZONS, a California nonprofit public
benefit corporation (the "Developer"). The Agency and the Developer (collectively
referred to as the "Parties") hereby agree as follows:
[1001 SUBJECT OF AGREEMENT
A. [101 ] Purpose of Agreement
The purpose of this Agreement is to effectuate the Redevelopment
Plan (as hereinafter defined) for the La Quinta Redevelopment Project No. 1 (the
"Project") by providing for the improvement of certain property situated within the
La Quinta Redevelopment Project Area No. 1 of the Project (the "Project Area"), by
assisting in the financing of the acquisition and development of one parcel (the
"Site") situated within the Project Area, the construction of a single-family home on
the parcel, and the long-term maintenance of such housing at an affordable housing
cost for persons and households of moderate -income, all as more fully described in
this Agreement. The Agency financial assistance in this Agreement shall be utilized
to effectuate a portion of the Agency's overall affordable housing program pursuant
to the requirements of California Health and Safety Code Section 33334.2 to
expend twenty percent (20%) of its increment funds to improve, increase and
preserve the community's supply of low- and moderate housing. The acquisition
and development of the Site and the occupancy of the unit as developed by
households of limited incomes all as provided in this Agreement are in the vital and
best interests of the City of La Quinta (the "City") and the health, safety and
welfare of its residents, and in accord with the public purposes and provisions of
applicable State and local laws and requirements under which the Project has been
undertaken.
B. [1021 The Redevelopment Plan
The Redevelopment Plan for Project Area No. 1 (the "Redevelopment
Plan") was approved and adopted by Ordinance No. 43 of the City Council of the
City of La Quinta on November 29, 1983 and amended by Ordinance No. 258 on
December 20, 1994 and Ordinance No. 264 on March 7, 1995; said ordinance as
amended and the Amended Redevelopment Plan are incorporated herein by
reference.
C. [ 1031 The Site
The "Site" shall consist of one parcel of real property within the
Project Area in the City of La Quinta, County of Riverside. The Site shall be
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acquired by the Developer. A maximum of one (1) detached, single-family homes
will be developed on the Site in accordance with the "Scope of Development" and
by the times set forth in the "Schedule of Performance," which are attached hereto
as Attachment Nos. 1 and 2, respectively, and incorporated herein by reference.
Any material change, as reasonably determined by the Agency, in the
Scope of Development (Attachment No. 1) or in the approved site plan which
affects the size, quality, or type of development proposed for the parcel shall
require the written approval of the Agency, which approval may be contingent
upon the review and renegotiation of all of the economic and financial terms of this
Agreement and such other matters as the Agency shall deem appropriate.
D. [ 1041 Parties to the Agreement
1 . [ 1051 The Agency
The Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under Chapter 2 of
the Community Redevelopment Law of the State of California, Division 24 of the
California Health and Safety Code, the principal office of the Agency is located at
78-495 Calle Tampico, La Quinta, California 92253, or such other address as
Agency shall hereafter designate in writing to Developer.
"Agency", as used in this Agreement, includes the La Quinta
Redevelopment Agency and any and all assignees of or successors to its rights,
powers and responsibilities.
2. [1061 The Developer
The Developer, Building Horizons, is a California nonprofit public
benefit corporation. The principal office and mailing addresses of the Developer for
purposes of this Agreement is 42-600 Cook Street, Palm Desert, California 92211.
By executing this Agreement, each person signing on behalf of
the Developer warrants and represents to the Agency that the Developer has the
full power and authority to enter into this Agreement, that all authorizations
required to make this Agreement binding upon the Developer have been obtained,
and that the person or persons executing this Agreement on behalf of the
Developer are fully authorized to do so.
Whenever the term "Developer" is used in this Agreement, such
term shall include any and all nominees, assignees, or successors in interests as
herein provided.
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3. [107] Prohibition Against Change in Ownership, Management
and Control of Developer and Prohibition Against Transfer
of tha Site
The qualifications and identity of the Developer are of particular
interest to the Agency. It is because of these qualifications and identity that the
Agency has entered into this Agreement with the Developer. Consequently, no
person, whether a voluntary or involuntary successor of Developer shall acquire any
rights or powers under this Agreement nor shall the Developer assign all or any part
of this Agreement or the Site without the prior written approval of the Agency. A
voluntary or involuntary sale or transfer of any interest in the Developer of the Site
prior to the issuance of a Certificate of Completion for the Improvements with
respect to such Site shall be deemed to constitute an assignment or transfer for the
purposes of this Section 107, and the written approval of the Agency shall be
required prior to effecting such an assignment or transfer. Any purported transfer,
voluntarily or by operation of law, except with the prior written consent of the
Agency, shall render this Agreement absolutely null and void and shall confer no
rights whatsoever upon any purported assignee or transferee. Prior to the issuance
of a Certificate of Completion for the Improvements, the Developer shall not, except
as permitted by this Agreement, assign or attempt to assign this Agreement or any
rights or duties herein, nor make any total or partial sale, transfer, conveyance, or
assignment of the whole or any part of the Site or the Developer Improvements
thereon, without the prior written approval of the Agency.
Notwithstanding any other provision of this Agreement to the
contrary, Agency approval of an assignment or this Agreement or transfer of the
Site or any interest therein shall not be required in connection with the conveyance
or dedication of any portion of the Site to the City of La Quinta or other appropriate
governmental agency, including public utilities, where the granting of such
easements permits or facilitates the development of the Site.
This Section 107 shall become inapplicable for the Site as to
which the Agency has issued a Certificate of Completion pursuant to Section 316 of
this Agreement.
E. [ 1081 Representations by the Developer
The Developer represents and warrants to the Agency as follows:
1. The Developer is duly established and in good standing under
the laws of the State of California and has duly authorized,
executed and delivered this Agreement and any and all other
agreements and documents required to be executed and
delivered by the Developer in order to carry out, give effect to,
and consummate the transactions contemplated by this
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Agreement. This Agreement is enforceable against the
Developer in accordance with its terms.
2. The Developer does not have any contingent obligations or
contractual agreements which could adversely affect the ability
of the Developer to carry out its obligations hereunder.
3. There are no pending or, so far as is known to the Developer,
threatened, legal proceedings to which the Developer is or may
be made a party or to which it or any of its property is or may
become subject, which have not been fully disclosed in the
material submitted to the Agency, which could adversely affect
the ability of the Developer to carry out its obligations
hereunder.
4. There is no action or proceeding pending or, to the Developer's
best knowledge, threatened, looking toward the dissolution or
liquidation of the Developer and there is no action or proceeding
pending or, to the Developer's best knowledge, threatened by
or against the Developer which could affect the validity and
enforceability of the terms of this Agreement, or adversely
affect the ability of the Developer to carry out its obligations
hereunder.
5. The Developer has, and will as required by its obligations
hereunder, dedicate, allocate and otherwise make available,
sufficient financial and other resources to perform its obligations
under this Agreement.
Each of the foregoing items 1 to 5, inclusive, shall be deemed to be an
ongoing representation and warranty and shall survive the close of
escrow for the Site(s). The Developer shall advise the Agency in
writing if there is any change pertaining to any matters set forth or
referenced in the foregoing items 1 to 5, inclusive.
11. [2001 AGENCY ASSISTANCE
The "Agency Assistance" shall be comprised of two components: (1)
acquisition and construction financing, and (2) second trust deed assistance
for the low or moderate income buyer.
A. [2011 Acquisition and Construction Financing
(1) Agency shall provide financing in a total amount not to exceed
of One Hundred and Twenty -Five Thousand Dollars ($125,000)
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for the acquisition of the parcel for the Site and the complete
construction of one housing unit by Developer pursuant to the
terms of the Scope of Development (Attachment No. 1), the
Schedule of Performance (Attachment No. 2) and the Developer
Promissory Notes and Developer Deed of Trusts (Attachments
Nos. 3 and 4, attached hereto and incorporated herein by this
reference);
(ii) The parcel shall have a Developer Promissory Note and
Developer Deed of Trust;
(iii) Agency Funds for the Developer Promissory Note in an amount
not to exceed $125,000 for the housing unit shall be dispersed
directly to escrow for the acquisition cost portion and the
remaining amount shall be disbursed according to a combination
of a construction schedule and invoice documentation to be
approved by the Agency Executive Director;
(iii) The Developer Promissory Note for the property at the Site shall
bear no interest and shall be due and payable upon the sale of
the corresponding lot to an Eligible Person or Family as defined
in Section 401.
B. [2021 Conditions Precedent to the Funding of Acquisition Financing
Prior to and as conditions to funding any portion of the Developer
Promissory Note, the Developer shall complete each of the following
by the respective times established therefore in the Schedule of
Performance (Attachment No. 2):
1 . The Developer shall not be in default of this Agreement;
2. The Developer provides to the Executive Director insurance
certificates conforming to Section 308 of this Agreement;
3. The Developer shall have executed and deposited with escrow
for delivery to the Agency the Developer Promissory Note for
the lot (Attachment No. 3);
4. The Developer shall have executed and deposited with escrow
for recordation and delivery to the Agency the Declaration of
Conditions, Covenants and Restrictions concerning the use of
and maintenance of the Site for the lot (Attachment No. 5) and
the Developer Deed of Trust for the lot; and
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The foregoing items numbered 1 to 5, inclusive, together constitute
the "Conditions Precedent to the Agency funding of the acquisition portion of the
Developer Promissory Note."
C. [2031 Home Buyer Loan and Second Trust Deed
Home Buyer Assistance funds shall be in the form of a promissory
note ("Buyer Promissory Note") secured by a second trust deed ("Buyer Second
Trust Deed") to assure the affordability of the housing unit to low and moderate
income buyers as defined in Section 401 hereof. The amount of second trust deed
funds available shall be determined at the time of qualifying the proposed low or
moderate income buyer of the unit. The final amount shall be approved by the
Executive Director in compliance with the Agency Board's goals and policies for its
affordable housing program.
The basic form of the Buyer Promissory Note and the Buyer Second
Trust Deed shall be that form currently approved for use by the Agency for its
affordable housing program at the time of the sale of the unit to the buyer. The
form may need revision at a staff level to be current with Fannie Mae, HUD or
other government or lender requirements. Basic terms of the Buyer Promissory
Note shall include: (1) zero percent interest; (ii) 30-year term; (iii) no payments due
unless sale to a nonqualified buyer triggers payment under equity share provision;
(iv) assumability to a qualified buyer, and (v) full credit of all payments at end of
term if all conditions, covenants and restrictions have been followed.
The Agency Assistance has been funded from the Agency's Low and
Moderate Income Housing Fund. Accordingly, Developer acknowledges and agrees
that the use of the Site shall be subject to all of the income and affordability
restrictions set forth in this Agreement, and the Declaration of Covenants,
Conditions and Restrictions (Attachment No. 5).
D. [2041 Acquisition of the Site
The Developer will acquire a fee simple marketable interest to the Site.
The cost of the Developer to acquire each parcel, including consideration payable
to owners, relocation benefits or assistance, escrow charges, premiums for title
insurance and other closing costs, appraisal fees, preliminary title reports,
reasonable attorneys fees, and other related charges shall be approved in advance
by the Executive Director and included in the Site cost calculation as allowable
costs to be advanced under the Developer Promissory Note dispersement schedule
as approved by the Executive Director.
E. [205] Escrow
The Developer agrees to open an escrow or escrows (the "Acquisition
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Escrow(s)") with Fidelity National Title Company, Escrow Division, or with another
mutually agreeable escrow company (the "Escrow Agent"), by the time established
therefore in the Schedule of Performance (Attachment No. 2). This Agreement
constitutes the lenders escrow instructions for the financing of the Site acquisition
and a duplicate original of this Agreement shall be delivered to the Escrow Agent
upon the opening of the Acquisition Escrow. The Escrow Agent is hereby
empowered to act under this Agreement, and the Escrow Agent, upon indicating
within five (5) days after the opening of the Acquisition Escrow its acceptance of
the provisions of this Section 205, in writing, delivered to the Agency and the
Developer, shall carry out its duties as Escrow Agent hereunder.
The Agency shall pay into the Acquisition Escrow the total amount of
the purchase price for the lot in the Site and the following fees, charges and costs
for the lot promptly after the Escrow Agent has notified the Agency of the total
amount of such purchase price, fees, charges and costs, but not earlier than ten
(10) days prior to the scheduled date for closing the Acquisition Escrow:
1. The Escrow fee; and
2. Cost of drawing the grant deed;
3. Recording fees;
4. Notary fees;
5. The title insurance policy; and
6. Any transfer tax and any State, county or city documentary
stamps.
The Escrow Officer shall notify the Agency when all outstanding
documents including the grant deed to the Developer, the Developer Trust Deed
and the Declaration of Conditions Covenants and Restrictions have executed and
submitted to Escrow by the applicable party. The Agency shall provide the funds
pursuant to the Developer Promissory Note directly to Escrow within three (3)
business days of the notice by Escrow that all other contingencies to the closing
have been met and the above documents are ready to record.
The Escrow Agent is authorized to utilize the Agency funds provided
pursuant to the Developer's Promissory Note for the above acquisition costs on the
condition of the immediate recording of the Developer's Deed of Trust (Attachment
No. 4) and the Conditions, Covenants and Restrictions (Attachment No. 5) after
recording of the grant deed vesting title in the Developer's name.
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All funds received in this Acquisition Escrow shall be deposited by the
Escrow Agent, with other escrow funds of the Escrow Agent in an interest -earning
general escrow account or accounts with any State or national bank doing business
in the State of California. Such funds may be transferred to any other general
escrow account or accounts. All disbursements shall be made by check of the
Escrow Agent.
If this Acquisition Escrow has not closed within three working days of
the receipt by Escrow of the Agency funds then said funds shall be returned to the
Agency unless written authorization to retain the funds is provided by the Agency
Executive Director.
Any amendment to these lender's escrow instructions shall be in
writing and signed by the Agency. At the time of any amendment, the Escrow
Agent shall agree to carry out its duties as Escrow Agent under such amendment.
The liability of the Escrow Agent in the capacity of escrow holder with
respect to the Agency is limited to performance of the obligations imposed under it
under this Section 205 of this Agreement.
F. [2061 Conveyance to Eligible Persons and Families
At such time as the Developer conveys the parcel of the Site to
Eligible Persons and Families, it shall assure that the Conditions, Covenants and
Restrictions (Attachment No. 5) remain of second seniority to the lien of any
financing, and that the Second Deed of Trust is recorded in a second lien position,
behind the lien securing purchase money financing. The conveyances of lots shall
be accomplished by grant deed which sets forth the affordability and
nondiscrimination provisions in the form to be approved by the Agency Executive
Director and Agency Counsel prior to transfer of property to Eligible Person or
Family.
II. [3001 DEVELOPMENT OF THE SITE
A. [3011 Development of the Site
1. [3021 Scope of Development
The parcel of the Site shall be developed as a detached, single-
family housing unit as provided in the Scope of Development (Attachment No. 1).
The development of the Site shall include both public improvements and private
improvements on the Site and public improvements off -site required in the normal
course of City review by the City associated with the development of the Site
(collectively, the "Improvements").
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Upon close of the Acquisition Escrow, the Developer shall
commence and complete construction of the Improvements for the lot of the Site
by the respective times established therefore in the Schedule of Performance
(Attachment No. 2).
The Scope of Development (Attachment No. 1) shall include any
plans and specifications submitted to the City and/or Agency for approval, and
shall incorporate or show compliance with all mitigation measures.
2. [3031 Site Plan
By the time set forth therefore in the Schedule of Performance
(Attachment No. 2), the Developer shall prepare and submit to the City for its
approval a Site Plan and related documents which conform to requirements of the
City and which contain the overall plan for development of the Site in sufficient
detail to enable the City to evaluate the proposal for conformity to the requirements
of the La Quinta Municipal Code and this Agreement. The Site shall be developed
as established in this Agreement and such documents, except as changes may be
mutually agreed upon between the Developer and the Agency. Any such changes
shall be within the limitations of the Scope of Development (Attachment No. 1).
The landscaping and finish grading plans shall be prepared by a
professional landscape architect or registered civil engineer who may be the same
firm as the Developer's architect or civil engineer.
During the preparation of all drawings and plans, staff of the
City and the Agency and the Developer shall hold regular progress meetings to
coordinate the preparation of, submission to, and review of drawings, plans and
related documents by the City. The staff of City and the Agency and the
Developer shall communicate and consult informally as frequently as is necessary
to insure that the formal submittal of any documents to the Agency can receive
prompt and speeding consideration.
3. [3041 Review and Approval of Plans, Drawings, and Related
Documents
The Agency and the City shall have the right of planning,
including plan check, review of all plans and submissions, including any changes
therein.
During each stage of the processing of plans for the
Improvements, the Agency and the City shall have the right to require additional
information and shall advise the Developer if any submittal of plans or drawings is
not complete or not in accordance with City/Agency procedures. If the Agency or
the City determines that such a submittal is not complete or not in accordance with
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procedures, such tender shall not be deemed to constitute a submittal for purposes
of satisfying the Schedule of Performance (Attachment No.2).
If the Developer desires to make any substantial changes in the
construction plans after their approval by the Agency and the City, the Developer
shall submit the proposed change to the Agency and the City for their approval. If
the construction plans, as modified by the proposed change, conform to the
requirements of this Section 305 and the Scope of Development (Attachment No.
1), the Agency and the City will approve the proposed change and notify the
Developer in writing within thirty (30) days after submission to the Agency and the
City.
4. [3051 Cost of Development
All costs for planning, designing, and constructing the
Improvements shall be borne exclusively by the Developer. The Developer shall
also bear all costs related to discharging the duties of the Developer set forth in
this Agreement. The Developer assumes the responsibility to construct, and shall
let contracts for or cause to be constructed, all off -site public improvements
developed pursuant to this Agreement, substantially in conformity with procedures
used by the Agency when competitive bidding is deemed to be required. The
Developer shall be responsible for all fees associated with development of the
Improvement, including, but not limited to, school facilities fees and impact fees.
5. [3061 Construction Schedule
The Developer shall commence and complete the Improvements
by the respective times established therefore in the Schedule of Performance
(Attachment No. 2).
6. [3071 Indemnity, Bodily Injury and Property Damage Insurance
The Developer shall defend, assume all responsibility for and
hold the Agency and the City, and their respective officers, agents and employees,
harmless from all claims or suits for, and damages to, property and injuries to
persons, including accidental death (including attorneys fees and costs), which may
be caused by any of the Developer's activities under this Agreement, whether such
activities or performance thereof be by the Developer or damage shall accrue or be
discovered before or after termination of this Agreement. The Developer shall take
out and maintain during the life of this Agreement a comprehensive liability policy
in the amount of One Million Dollars ($1,000,000) combined single limit policy,
including contractual liability, as shall protect the Developer, the City, and the
Agency from claims for such damages.
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Coverage shall be primary and not contributing with any policy
or coverage maintained by or obtained by the Agency, and an appropriate
endorsement shall so state. The policy shall contain a waiver of subrogation.
Insurance coverage furnished by the Developer pursuant to this Section 308 shall
conform to this Section 308 and shall pertain to all activities on the Site and
adjacent public rights -of -way surrounding the Site and all work on off -site public
improvements.
Developer shall furnish or cause to be furnished to the Agency a
certificate of insurance from the insurer evidencing compliance with this Section
308 and providing that the insurer shall not change or modify the policy without
thirty (30) days' prior written notice to Agency. In the alternative, Developer may
show proof of a certificate of consent to self -insure issued by the Director of
Industrial Relations according to California Labor Code Section 3800.
The Developer additionally agrees to and shall save the Agency
and the City and their officers, employees and agents harmless from and assume all
responsibility for any and all liability or responsibility for damage, costs losses, or
suit arising in any manner from the approval of this Agreement or the development
and activities conducted pursuant to this Agreement. This obligation and
indemnification shall constitute a covenant running with the land throughout the
life of the Redevelopment Plan.
7. [3081 City and Other Governmental Agency Permits
Before commencement of construction or development of any
buildings, structures or other works of improvement upon the Site or in connection
with any off -site improvement, the Developer shall, at its own expense, secure or
cause to be secured any and all permits which may be required by the City or any
other governmental agent affected by such construction, development or work. It
is understood that the Developer's obligation is to pay all necessary fees and to
timely submit to the City final drawings with final corrections to obtain building
permit; the Agency will, without obligation to incur liability or expense therefor, use
its best efforts to expedite issuance of building permits and certificates of
occupancy for construction that meet the requirements of the City Code.
8. [3091 Rights of Access
For purpose of assuring compliance with this Agreement,
representatives of the Agency and the City shall have the right of access to the
Site without charges or fees, at normal business hours during the period of this
Agreement for the purposes of this Agreement, including, but not limited to, the
inspection of the work being performed in constructing the Improvements, so long
as they comply with all safety rules. Such representatives of the Agency or of the
City shall be those who are so identified in writing by the Executive Director of the
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Agency. The Agency shall hold the Developer harmless from any bodily injury or
related damages arising out of the activities of the Agency and the City as referred
to in this Section 310.
9. [3101 Local, State and Federal Laws
The Developer shall perform under this Agreement and carry out
its performance under this Agreement, including without limitation the construction
of the Improvements, in conformity with all applicable federal and State laws and
local ordinances, including all applicable federal and State labor standards, as to the
Site, provided, however, Developer and its contractors, successors, assigns,
transferees, and lessees are not waiving their rights to contest any such laws, rules
or standards.
10. [3111 Anti -Discrimination
Pursuant to Section 33435 and 33050 of the California
Community Redevelopment Law, the Developer for itself and its successors and
assigns, agrees, that in the construction of Improvements on the Site or other
performance under this Agreement, the Developer will not discriminate against any
employee or applicant for employment because of sex, marital status, race, color,
religion, ancestry, or national origin.
1 1 . [3121 Taxes and Assessments
After the Agency Conveyance the Developer shall pay prior to
delinquency all real estate taxes and assessments on the Site so long as the
Developer retains any interest thereon. Prior to the Developer Conveyance, the
Developer shall remove or have removed any levy or attachment made on any of
the Site or any part thereof, or assure the satisfaction thereof within a reasonable
time but in any event prior to said sale or transfer. Notwithstanding the above, the
Developer shall have the right to contest the validity or amounts of any tax,
assessment, or encumbrance available to the Developer in respect thereto.
B. [3131 Prohibition Against Transfer of the Site, the Buildings or
Structures Thereon and Assignment of Agreement
Except as to the sale of any home to an owner -occupant in
accordance with this Agreement, the Developer shall not, except as may be
expressly permitted by this Agreement, without prior approval of the Agency, make
any total or partial sale, transfer, conveyance of, or enter into any assignment or
ground lease of or refinance the whole or any part of the Site or of the buildings or
structures on the Site. This prohibition shall not be deemed to prevent the granting
of temporary or permanent easements or permits to facilitate the development of
the Site or to prohibit or restrict the sale of a "Restricted Unit" to "Eligible Persons
or Families" (as defined in Section 401) in conformity with Section 401 of this
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Agreement.
C. [314] Right of the Agency to Satisfy Other Liens on the Site(s) After
Title Passes
After the Agency Conveyance and prior to the completion of
construction, and after the Developer has had written notice and has failed after a
reasonable time, but in any event not less than forty-five (45) days, to challenge,
cure, adequately bond against, or satisfy any liens or encumbrances on the Site
which are not otherwise permitted under this Agreement, the Agency shall have
the right but no obligation to satisfy any such liens or encumbrances.
Notwithstanding the above, the Developer shall have the right to contest the
validity or amounts of any tax, assessment, or encumbrance available to the
Developer in respect thereto.
D. [315] Certificate of Completion
Promptly after the completion of all of the Improvements and their sale
to Eligible Persons or Families (as defined in Section 401 hereof) in conformity with
this Agreement (as determined by the Executive Director of the Agency), upon the
written request of the Developer relating only to the Site as to which construction
has been completed in accordance with this Agreement the Agency shall furnish
the Developer with the Certificate of Completion (in the form attached hereto as
Attachment No. 6) which evidences and determines the satisfactory completion of
the construction, development and sale to an Eligible Person or Family, as to any
single-family home, pursuant to the provisions and covenants specified in this
Agreement, the Redevelopment Plan and the California Community Redevelopment
Law.
The issuance and recordation of a Certificate of Completion
(Attachment No. 6) with respect to the Improvements shall not supersede, cancel,
amend or limit the continued effectiveness of any obligations relating to the
maintenance, or uses, or payment of monies, or any other obligations, except for
the obligation to complete construction of the Improvements as of the time of the
issuance of such applicable certificate.
If the Agency refuses or fails to furnish a Certificate of Completion
after written request from the Developer, the Agency shall, within forty-five (45)
days of the written request, provide the Developer with a written statement of the
reasons the Agency refused or failed to furnish such Certificate of Completion.
Upon issuance of a Certificate of Completion (Attachment No. 6) for
the Improvements, construction of such Improvements as to any single-family
home shall be deemed to have been completed in conformity with this Agreement.
The Certificate of Completion (Attachment No. 6) is not a notice of completion as
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referred to in Section 3093 of the California Civil Code. The issuance of a
Certificate of Completion shall not affect the continued effectiveness of the
Developer Deed of Trust (Attachment No. 4) and the Declaration of Conditions,
Covenants and Restrictions (Attachment No. 5) recorded pursuant to this
Agreement.
IV. [4001 USE OF THE SITE
A. [401 ] Affordable Housing
1 . Number of Units.
Developer shall develop one (1) detached, single-family home
(the "Restricted Unit") within the Project Area and shall develop all on -site and off -
site public improvements connected therewith, all as described and set forth in the
Scope of Development (Attachment No. 1). Developer shall restrict the unit for
sale to one (1) Moderate Income Household pursuant to the applicable income and
affordability provisions contained herein. The Developer further covenants and
agrees that the above -referenced occupancy, ownership and affordability
requirements shall bind and be enforceable against the Site for the period of forty-
five (45) years commencing with the acquisition of each respective parcel by the
Developer with the simultaneous recording of the Conditions, Covenants and
Restrictions (Attachment No. 5).
2. Definitions.
(a) "Affordable Housing Cost" shall be that purchase price
which would result in maximum monthly housing payments for a thirty (30) year
mortgage for that portion of the purchase price which is to be paid in the form of
loan proceeds under currently prevailing mortgage loan rates or the interest rate of
any below -market mortgage program for which such purchaser has obtained a first
trust deed loan, for the low or moderate income group calculated pursuant to
Health and Safety Code Section 50052.5, which sets forth the following formula:
Lower Income Households - whose gross incomes exceed the
maximum income for very low income households and do not exceed seventy
percent (70%) of the area median income adjusted for family size, the product of
thirty percent (30%) times seventy percent (70%) of the area median income
adjusted for family size appropriate for the unit. In addition, for any low income
household that has a gross income that equals or exceeds seventy percent (70%)
of the area median income adjusted for family size, it shall be optional for any state
or local funding agency to require that affordable housing cost not exceed thirty
percent (30%) of the gross income of the household.
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Moderate Income Households - not less than twenty-eight
percent (28%) of the gross income of the household, nor more than the product of
thirty-five percent (35%) times the greater of one hundred ten percent (110%) of
area median income adjusted for family size appropriate for the Affordable Unit, or
the gross income of the household for households earning greater than one hundred
percent (1 10%) and not more than one hundred twenty percent (120%) of the area
median income adjusted for family size.
(b) "Affordability Period" shall be forty-five (45) years from
the date of transfer to an Eligible Person or Family.
(c) "Eligible Person or Family" shall mean any person or
family who meets the income qualifications for Low or Moderate Income
Households.
(d) "Lower Income Household" shall mean a household
earning not greater than eighty percent (80%) of Riverside County median income,
as determined by the United States Department of Housing and Urban Development
from time to time, as set forth in Health and Safety Code Section 50093.
(e) "Moderate Income Household" shall mean a household
earning not greater than one hundred twenty percent (120%) of Riverside County
median income, as determined by the United States Department of Housing and
Urban Development from time to time, as set forth in Health and Safety Code
Section 50093.
(f) "Owner" shall mean Developer and any successor in
interest of Developer to any lot of the Site except where a provision of this
Agreement expressly excludes Developer from the definition of owner.
(g) "Proposed Transferee" shall mean a person or family
determined to be an Eligible Person or Family to whom the Developer or any
successor Owner desires and proposes to Transfer a Restricted Unit.
(h) "Purchase Housing Cost" or an Eligible Person or Family
purchasing a Restricted Unit shall include all of the following associated with that
Restricted Unit, estimated or known as of the date of their proposed sale of the
Restricted Unit:
(i) Principal and interest on a mortgage loan including
any rehabilitation loans, and any loan insurance fees associated therewith.
(ii) Property taxes and assessments.
(iii) Fire and Casualty insurance covering replacement
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value of property improvements.
(iv) Any homeowner association fees.
Monthly housing cost of a purchaser shall be an average of estimated costs for the
next twelve (12) months.
(i) "Restricted Unit" shall mean a dwelling unit, which shall
be a single-family residence, subject to the restrictions of this Agreement
(including, without limitation, the Declaration of Conditions, Covenants and
Restrictions (Attachment No. 5)).
(j) "Sales Price" shall mean all sums paid by a purchaser to a
seller for, or in conjunction with, the acquisition of a Restricted Unit, including the
purchase price designated in any purchase agreement, consideration for personal
property and all other costs and fees paid by the purchaser to or for the benefit of
the seller.
(k) "Transfer" shall mean any sale, assignment, conveyance,
lease or transfer, voluntary or involuntary, of any interest in a Restricted Unit.
Without limiting the generality of the foregoing, Transfer shall include (i) a transfer
by devise, inheritance or intestacy to a party who does not meet the definition of
Eligible Person or Family; (ii) a life estate; (iii) creation of a joint tenancy interest;
(iv) a gift of all or any portion of a Restricted Unit; or (v) any voluntary conveyance
of a Restricted Unit. Transfer shall not include transfer to a spouse in a dissolution
proceeding; however any subsequent Transfer shall be subject to this restriction.
(1) "Transferee" shall mean any natural person or entity who
obtains ownership or possessory rights in a Restricted Unit pursuant to a Transfer.
3. Sales of Restricted Units. Developer agrees that Developer shall
sell each Restricted Unit to an Eligible Person or Family at an Affordable Housing
Cost (the "Developer Conveyance") and that during the Affordability Period each
subsequent resale of a Restricted Unit by the then -Owner thereof shall be to an
Eligible Person or Family at an Affordable Housing Cost. Developer agrees that the
Conditions, Covenants and Restrictions (Attachment No. 5) giving effect to the
foregoing restriction shall be recorded against each lot of the Site concurrently with
the Acquisition Escrow. Developer agrees to commence to market each Restricted
Unit not later than the completion of construction of each Restricted Unit; each
Restricted Unit shall be sold to an Eligible Person or Family prior to issuance of a
Certificate of Completion as to any such Restricted Unit for purposes of Section
322 hereof.
For purposes of satisfying the requirement that all of the Restricted
Units shall be occupied by Eligible Persons or Families: (a) an individual or family
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who qualifies as an Eligible Person or Family at the time he or she first takes title to
a Restricted Unit will be deemed an Eligible Person or Family as long as he or she
continues to hold title to such Restricted Unit even though the Eligible Person or
Family subsequently ceases to meet the income or other requirements of an Eligible
Person or Family, and (b) when an Owner releases title to a Restricted Unit, such
unit will be considered as occupied by an Eligible Person or Family if it is held
vacant and available for such occupancy until title is transferred to another Eligible
Person or Family, at which time the status of the new Owner as an Eligible Person
or Family is to be determined.
4. Restrictions on Transfer by Sale of the Restricted Property or
Any Restricted Unit.
(a) For the duration of the Affordability Period, Developer, for
itself and any subsequent Owner, hereby subjects the Site to certain restrictions
and limits the price at which Developer or any other Owner may sell and/or resell
the Site and the persons to whom Developer or any other Owner may sell the Site.
(b) DEVELOPER AND ANY OTHER OWNER UNDERSTANDS
THAT THE DETERMINATION OF THE SALES PRICE CAN BE MADE ONLY AT THE
TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST
RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE
ACCURATELY PREDICTED AND THAT THE SALE PRICE PERMITTED HEREUNDER
MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR
REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION.
DEVELOPER AND ANY OTHER OWNER FURTHER ACKNOWLEDGE THAT, AT ALL
TIMES IN SETTING THE SALES PRICE, THE PRIMARY OBJECTIVE OF THE
AGENCY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE
PERSONS OR FAMILIES AT AFFORDABLE HOUSING COST. THE SALES PRICE
MAY BE LESS THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO
RESTRICTIONS.
Developer' nitials
(c) Transfer of a Restricted Unit. Developer and any
successor Owner may transfer a Restricted Unit only in strict accordance with the
provisions of this Agreement. Specifically, during the Affordability Period, Owner
may transfer a Restricted Unit (i) only to an Eligible Person or Family and (ii) only if
the Purchase Housing Cost does not exceed Affordable Housing Cost for the Eligible
Person or Family; and (iii) only if the Transfer has previously been approved in
writing by the Agency.
In order to comply with this Subsection 4(c), Developer and any
successor Owner must calculate the Affordable Housing Cost for the Proposed
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Transferee of the Restricted Unit in accordance with the definition set forth in
Subsection 2(a) of this Section 401. After calculating the Affordable Housing Cost
for the Proposed Transferee, the Owner must ensure that the sum of the Sales
Price and all costs listed in the definition of Purchase Housing Cost set forth in
Subsection 2 of Section 401 does not exceed that Affordable Housing Cost. The
Calculation of the Sales Price under this Subsection 4(c) is illustrated by example in
Attachment No. attached hereto.
(d) In the event that
after a good faith effort as
defined in
the Buyer Promissory Note,
the successor
Owner is unable to obtain
an Eligible
Person or Family to transfer
the Restricted
Unit, then after the required notice to
and approval by the Agency
Executive Director the owner may sell the
Restricted
Unit to a noneligible party
subject to the
equity share provisions of
the Buyer
Promissory Note and the
Covenants, Conditions and Restrictions
would be
released.
(e) Notwithstanding anything to the contrary in this Section
401, at close of the Developer Conveyance Escrow transferring the Restricted Unit
from the Developer to the Proposed Transferee (the "Initial Owner"), the Initial
Owner shall execute a Buyer's Promissory Note as approved by the Executive and
Agency Counsel which Promissory Note shall be secured by a Second Deed of
Trust. The Buyer's Promissory Note shall be non -interest bearing. The principal
amount shall be equal to the amount of the Agency Assistance necessary for the
Individual or Family to qualify for the Lender's loan and ensure the affordability
requirements are met as approved by the Executive Director in accordance with the
Agency's affordable housing program policies. The Note Amount shall be due and
payable according to its terms including any applicable equity sharing provision.
However, should the Initial Owner transfer the Restricted Unit to an Eligible Person,
Family at Affordable Housing Cost, the Transferee shall assume the Developer
Promissory Note (Attachment No. 3) and Agency shall extend the due date of the
Note Amount until the next Transfer of the Restricted Unit. The foregoing
provisions will apply to every successive Transfer during the Affordability Period.
5. Process to Complete Transfer by Sale of Restricted Units. Upon
the Transfer by sale of a Restricted Unit, the following procedures shall apply:
(a) Notice to City: Owner shall send to the Agency in care
of the La Quinta Housing Department (or its successor), at P.O. Box 1504, La
Quinta, California 922547, the forms attached hereto as Attachment Nos. 9 and
10 fully completed and executed by the Owner and the Proposed Transferee (the
"Notice of Intent to Transfer" and "Approval Request").
(b) Qualification of Proposed Transferee. No Transfer shall
occur unless and until determination is made based on the Certificate in the form of
Attachment No. 8 attached hereto ("Certificate") and attachments thereto, that the
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Proposed Transferee (i) intends to occupy the Restricted Unit as the Proposed
Transferee's principal residence and (ii) is an Eligible Person or Family. Each
Proposed Transferee shall submit a Certificate to the Developer certifying its intent
with regard to the occupancy of the Restricted Unit and as to the truth and
accuracy of all information supplied as to the Gross Income (calculated as set forth
in 25 Cal. Code of Regs., Section 6914) of the Proposed Transferee ("Proposed
Transferee's Certificate"). Developer or subsequent owner shall certify pursuant to
Attachment No. 8 hereof the information provided on the Proposed Transferee's
Certificate pursuant to direction on that Certificate. Developer or subsequent
owner shall be entitled to rely on the information on the Proposed Transferee's
Certificate and attachments thereto in making the determination required by this
subsection 5(b) unless the Developer or subsequent owner has knowledge of, or a
reasonable basis for belief as to the inaccuracy or falsehood of the Proposed
Transferee's Certificate.
(c) The Sales Price for the Restricted Unit shall not exceed
the maximum price at which the Purchase Housing Cost to be paid by the Proposed
Transferee would not exceed Affordable Housing Cost. The calculation of the
Sales Price under this subsection is illustrated by example in Attachment No. 7
attached hereto. However, in determining Affordable Housing Cost, the family size
of the Proposed Transferee shall be deemed to be 2 persons in the case of a 1
bedroom, 3 persons for a 2 bedroom, 4 persons for a 3 bedroom, or 5 persons for
a 4 bedroom Restricted Unit. If the actual family size of the Proposed Transferee is
larger, then the actual family size shall be used.
(d) Certificates from Parties. With respect to the sale of a
Restricted Unit, Developer or subsequent owner shall submit to the Agency, not
later than four (4) weeks prior to close of escrow on the sale of a Restricted Unit, a
certificate that (1) the Developer or subsequent owner has made the affirmative
determinations required by Section 4(a) above and (ii) the Sales Price conforms
with Section 4(b) above. The Developer or subsequent owner shall concurrently
submit to the Agency the Proposed Transferee's Certificate and all attachments
thereto and all other documents or material with regard to information required by
Sections 4(a) and/or (b) above, whether or not relied on by the Developer. Further,
the Developer or subsequent owner and Proposed Transferee each shall certify in
writing, in a form acceptable to the Agency, that the Transfer shall be closed in
accordance with, and only with, the terms of the sales contract and other
documents submitted to and approved by the Agency and that all consideration
delivered by the Proposed Transferee to Developer or subsequent owner has been
fully disclosed to the Agency. The written certificate shall also include a provision
that, in the event a Transfer is made in violation of the terms of this Agreement or
false or misleading statements are made in any documents or certificate submitted
to the Agency for its approval of the Transfer, the Agency shall have the right to
file an action at law or in equity to seek termination and/or rescission of the sales
contract and/or declare the sale void, notwithstanding the fact that the Transfer
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may have closed and become final as between Developer or subsequent owner and
its Transferee. In the event Developer for the initial transfer or subsequent owner
for each following transfer fails to comply with Sections 4(a) or 4(b) above, any
costs, liabilities or obligations incurred by the Developer or subsequent owner and
its Transferee for the return of any monies paid or received or for any costs and
legal expenses, shall be borne Jointly and severally by the Developer and its
transferee and such parties shall hold the City and Agency harmless and reimburse
their expenses, legal fees and costs for any action and City and/or Agency take in
enforcing the terms of this Section 401.
(e) Execution of Promissory Note and Second Deed of Trust.
Notwithstanding anything to the contrary in this Agreement, at close of Escrow of
the sale of the Housing Unit from the Developer to the Buyer, the Buyer shall
execute a Buyer Promissory Note which shall be secured by a Second Deed of
Trust. Said Second Deed of Trust shall be subordinate to any mortgage(s) obtained
by the Owner for the purpose of securing funds to be applied to the Sales Price of
the Housing Unit. The Buyer Promissory Note shall be non -interest bearing. The
principal amount of the Promissory Note shall be an amount equal to the amount
actually given as cash plus an Agency Equity Share Amount which becomes
applicable only in the event that the Buyer is unable after good faith efforts to find
an Eligible Person or Family to transfer the home at Affordable Housing Cost. In
the event that the Buyer has provided the Agency with evidence of their good faith
efforts then Agency may approve the sale to a nonqualified buyer and release the
covenants by receiving in addition to the cash amount originally provided the
additional Agency Equity Amount as provided under the terms of the Buyer
Promissory Note.
So long as the Transferee purchasing the Housing Unit from the
Owner is an Eligible Person or Family and the Sale of the Housing Unit is made at a
price which is not in excess of Affordable Housing Cost, the Transferee shall
assume the obligations of the Owner under the Promissory Note and Second Deed
of Trust to repay the Agency Equity pursuant to the Promissory Note by execution
of an assumption agreement in the form set forth as Attachment No. 11 of this
Agreement, together with other written documentation satisfactory to the Agency,
and Agency shall extend the due date of the Agency Equity pursuant to the Note
Amount until the next Transfer of the Housing Unit by said Transferee. At such
next Transfer, the Agency will again extend the due date of the Agency Equity
pursuant to the Note Amount if the Sale or Transfer complies with the
requirements of this Section. So long as each Transferee from the Owner and each
subsequent Owner: (1) is an Eligible Person or Family, (2) acquires the Housing
Unit at an Affordable Housing Cost, and (3) assumes the obligations of the
predecessor Owner as aforesaid; then the Agency agrees to extend the due date of
the Agency Equity pursuant to the Note Amount and the transferring Owner shall
not be required to pay the Agency Equity potion of the Note Amount upon transfer
of the Housing Unit.
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The Agency Equity payment requirement is intended as a penalty
against the Owner, to capture a portion of the equity in the Restricted Property for
the benefit of the Agency/Holder, in the event that the Owner makes a sale of the
Restricted Property to a Buyer that is not an Eligible Person or Family. This equity
recapture requirement is intended to be a cumulative remedy, together with all
other remedies available to the Agency/Holder to compensate for the removal of
the affordable housing covenants of the Grant Deed and this Agreement on the
Housing Unit, to compensate the Agency for the administrative costs of operating
the housing program of the Agency and to provide funds to the Agency to further
assist low and moderate income persons in the provision of housing. In the event
the equity recapture provisions of the Promissory Note are found by a court or
administrative agency of competent jurisdiction to be in contravention of law or
administrative regulation, the Applicable Percentage shall be reduced to the
maximum percentage allowable by applicable law or administrative regulation, or
may be otherwise modified by judicial decree or order so as to comply with
applicable law.
(f) Written Consent of Agency Required Before Transfer. During
the Affordability Period the Restricted Property or the Restricted Unit, as the case
may be, and any interest therein, shall not be conveyed by any Transfer except
with the express written consent of the Agency, which consent shall be given only
if the Transfer is consistent with the Agency's goal of creating, preserving,
maintaining and protecting housing in the City of La Quinta for Eligible Persons and
Families and shall be in accordance with the provisions of this subsection 5. This
provision shall not prohibit the encumbering of title for the sole purpose of securing
financing of the purchase price of the Restricted Unit.
(g) Delivery of Documents. Upon the close of the proposed
Transfer, the Owner and Transferee, as applicable, shall provide the Agency with a
certified copy of the recorded Assumption Agreement, a copy of the final sales
contract, settlement statement, escrow instructions, all certificates required by this
subsection 5 and any other documents which the Agency may request.
6. Covenants of Owner. The Owner of the Restricted Unit by
acceptance of a deed to the Restricted Unit covenants and agrees that, at all times
during the Affordability Period, its Restricted Unit will be continuously occupied by
Owner as its principal residence, and shall not be rented, subleased, or subject to
any other business arrangement, whereby consideration shall be paid by any
occupant of a Restricted Unit to the Owner of the Restricted Unit; provided, if the
Restricted Unit is occupied by an Eligible Person or Family, the family members
whose income was considered in determining the eligibility of that family may make
monetary contributions toward the Purchase Housing Costs of the Restricted Unit.
Owner agrees that it shall not record or cause the recordation of any deed of trust
(a "Further Encumbrance") securing a note having an original principal sum which,
when added to the sum of the principal amount(s) of any notes secured by any
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deeds of trust against the Restricted Property as of the date of recordation of the
Further Encumbrance, exceeds the fair market value of the Restricted Property.
B. [4021 Uses In Accordance with Redevelopment Plan;
Nondiscrimination
The Developer covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the Site or any part thereof that the
Developer and such successors and assignees, shall devote the Site to the uses
specified in the Redevelopment Plan, the Grant Deed (Attachment No. _), the
Declaration of Conditions, Covenants and Restrictions (Attachment No. 5) and this
Agreement for the periods of time specified therein. The foregoing covenants shall
run with the land.
The Developer covenants by and for itself and any successors in
interest that there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Site, nor shall the Developer itself or any person
claiming under or though it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site.
The foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of
the property on the basis of race, color, creed, religion, sex, marital status, national
origin or ancestry of any person. All such deeds, leases or contracts shall contain
or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
1 . In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons
claiming under or through his or her heirs, executors, administrators and assigns,
and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee himself or herself or any person claiming
under or though him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land
herein conveyed. The foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon
and subject to the following conditions:
GAWPDOCS\Documents\Building Horizons\Bui1dHorizAgree06-07 one unit.rtf 22
"There shall be no discrimination against or segregation or any
person or group of persons on account of race, color, creed, religion, sex, marital
status, ancestry or national origin in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the premises herein leased."
3. In contracts: "There shall be no discrimination against or
segregation of, any person, or group of persons on account of race, color, creed,
religion, sex, marital status, ancestry or national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the
transferee himself or herself or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the premises."
The covenants established in this Agreement and the deeds of
conveyance for the Site shall, without regard to technical classification and
designation, be binding for the benefit and in favor of the Agency, its successors
and assigns, the City and any successor in interest to the Sites, together with any
property acquired by the Developer pursuant to this Agreement, or any part
thereof. The covenants against racial discrimination shall remain in effect in
perpetuity.
C. [403] Effect of Violation of the Terms and Provisions of this
Agreement After Completion of Construction
The Agency is deemed the beneficiary of the terms and provisions of
this Agreement and of the covenants running with the land, for and in its own
rights and for the purposes of protecting the interests of the community and other
parties, public or private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided. The Agreement and the
covenants shall run in favor of the Agency, without regard to whether the Agency
has been, remains or is an owner of any land or interest therein in the Site or in the
Project Area. The Agency shall have the right, if this Agreement or covenants are
breached, to exercise all rights and remedies, and to maintain any actions or suits
at law or in equity or other property proceedings to enforce the curing of such
breaches to which it or any other beneficiaries of this Agreement and covenants
may be entitled.
D. [404] Maintenance of the Site
The Developer shall maintain the improvements on the Site in
conformity with the La Quinta Municipal Code and the requirements of the
GAWPDOCS\Documents\Building Horizons\Bui1dHorizAgree06-07 one unit.rtf 23
Declaration of Conditions, Covenants and Restrictions (Attachment No. 5), and
shall keep the Site free from any accumulation of debris or waste materials.
The Developer shall also maintain the landscaping required to be
planted under the Scope of Development (Attachment No. 1) in a healthy and
attractive condition. If, at any time, Developer fails to maintain the Site or any
portion thereof, and said condition is not corrected as soon as reasonably possible
after written notice from the Agency, either the Agency or the City may perform
the necessary maintenance and Developer shall pay such costs as are reasonably
incurred for such maintenance.
Upon the close of each Developer Conveyance, the Developer's
obligations under this Section 404 with respect to such Site shall be assumed by
the Transferee of such Site. This covenant shall run with the land and shall remain
in effect for the term of the Redevelopment Plan.
V. [5001 DEFAULTS AND REMEDIES
A. [5011 Defaults -- General
Subject to the extensions of time set forth in Section 603, failure or
delay by either party to perform any term or provision of this Agreement
constitutes a default under this Agreement. A party claiming a default shall give
written notice of default to the other party, specifying the default complained of
and the actions required to correct such default.
Except as otherwise expressly provided in Sections 508 and 509 of
this Agreement, the claimant shall not institute proceedings against the other party
if the other party within thirty (30) days from receipt of such notice immediately,
with due diligence, commences to cure, correct or remedy such failure or delay and
shall complete such cure, correction or remedy as soon as reasonably practicable
after receipt of such notice.
B. [5021 Legal Actions
1. [5031 Institution of Legal Actions
In addition to any other rights or remedies and subject to the
restrictions in Section 501, either party may institute legal action to seek specific
performance of the terms of this Agreement, or to cure, correct or remedy any
default, to recover damages for any default, or to obtain any other legal or
equitable remedy consistent with the purpose of this Agreement. Such legal
actions must be instituted in the Superior Court of the County of Riverside, State of
California, in an appropriate municipal court in that county, or in the Federal District
Court in the Central District of California.
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2. [5041 Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3. [505] 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
person service upon the Executive Director or in such other manner as may be
provided by law.
In the event that any legal action is commenced by the Agency
against the Developer, service of process on the Developer shall be made by
personal service upon any officer or director of the Developer and shall be valid
whether made within or without the State of California or in such other manner as
may be provided by law.
C. [5061 Rights and Remedies Are Cumulative
Except as otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other
default by the other party.
D. [5071 Inaction Not a Waiver of Default
Any failures or delays by either party in asserting any of its rights and
remedies as to any default shall not operate as a waiver of any default or of any
such rights or remedies, or deprive either such party of its right to institute and
maintain any actions or proceedings which it may deem necessary to protect,
assert or enforce any such rights or remedies.
E. [5081 Remedies and Rights of Termination
1. [509] Damages
If either party defaults with regard to any of the provisions of
this Agreement, the non -defaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured or commenced to be cured by
the defaulting party within forty-five (45) days after service of the notice of default
(or within such other period as is set forth herein), the defaulting party shall be
liable to the other party for any damages caused by such default.
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2. [510] Specific Performance
If either party defaults under any of the provisions of this
Agreement, the non -defaulting party shall serve written notice of such default upon
the defaulting party. If the default is not cured and/or commenced to be cured by
the defaulting party within forty-five (45) days of service of the notice of default,
or such other time limit as may be set forth herein with respect to such default, the
non -defaulting party as its option may thereafter (but not before) commence an
action for specific performance of terms of this Agreement.
3. [51 1 ] Right of Termination by the Developer
In the event that the Agency does not fund the portion of the
Developer Promissory Note for the acquisition costs in the manner and condition,
and by the date established in this Agreement and the Schedule of Performance
(Attachment No. 2), and any such failure shall not be cured within thirty (30) days
after written demand by the Developer then, at the option of the Developer, upon
written notice thereof to the Agency, all provisions of this Agreement shall
terminate and be of no further force and effect; thereafter, neither the Agency nor
the Developer shall have any further rights against or liability to the other with
respect to this Agreement. Notwithstanding the above, developer would be
entitled to the return of any Acquisition Deposit for a site not transferred pursuant
to Section 202 herein.
4. [512] Termination by the Agency
Promissory Note:
In the event that prior to the Agency funding of the Developer
(a) The Developer (or any successor in interest) assigns or
attempts to assign the Agreement or any rights therein or
in the Site(s) in violation of this Agreement; or
Ib) There is a charge in the ownership of the Developer
contrary to the provisions of Section 107(a) hereof; or
(c) The Developer does not submit certificates of insurance,
construction plans, drawings and related documents as
required by this Agreement, in the manner and by the
dates respectively provided in this Agreement therefor,
and such default or failure shall not be cured or
commenced to be cured within forty-five (45) days after
the date of written demand therefor by the Agency; or
(d) The Developer fails to satisfy the Conditions Precedent to
the Conveyance by the time established therefor in the
Schedule of Performance (Attachment No. 2); or
GAWPDOCS\Documents\Building Horizons\Bui1dHorizAgree06-07 one unit.rtf 26
(e) The Developer is otherwise in default under this
Agreement and such failure is not cured or commenced
to be cured within thirty (30) days of demand therefor by
the Agency;
then, at the option of the Agency, upon such written notice thereof to the
Developer as may be set forth above, this Agreement shall be terminated, and
thereafter neither party shall have any further rights or liability against the other
under this Agreement.
F. [5131 Remedies of the Parties for Default After Closing of the
Acquisition Escrow
1. [5141 Termination and Damages
After the Close of the Acquisition Escrow, if the Developer or
the Agency defaults with regard to any of the provisions of this Agreement, the
nondefaulting party shall serve written notice of such default upon the defaulting
party. If the default is not cured or commenced to be cured (and diligent efforts
toward curing the default) by the defaulting party within thirty (30) days after
service of the notice of default, the defaulting party shall be liable to the other
party for any damages caused by such default.
VI. [6001 GENERAL PROVISIONS
A [6011 Notices, Demands and Communications Between Parties
Written notices, demands and communications between the Agency
and the Developer shall be sufficiently given if delivered by hand or dispatched by
registered or certified mail, postage prepaid, return receipt requested, to the
principal offices of the Agency and the Developer at the addresses specified in
Section 105 and 106, respectively. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either
party may from time to time designate by mail as provided i this Section 601.
Any written notice, demand or communication shall be deemed
received immediately if delivered by hand and shall be deemed received on the
tenth (10th) day from the date it is postmarked if delivered by registered or
certified mail.
B. [6021 Conflicts of Interest
No member, official or employee of the Agency shall have any
personal interest, direct or indirect, in this Agreement, nor shall any member,
official or employee participate in any decision relating to the Agreement which
GAWPDOMDocuments\Building Horizons\BuildHorizAgree06-07 one unitstf 27
affects his personal interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested. No member, official or
employee of the Agency shall be personally liable to the Developer, or any
successor in interest, in the event of any default or breach by the Agency, or for
any amount which may become due to the Developer or successor or on any
obligations under the terms of this Agreement.
C. [603] Enforced Delay; Extension of Times of Performance
In addition to specific provisions of this Agreement, performance by
either party hereunder shall not be deemed to be in default, and al performance and
other date specified in this Agreement shall be extended, where delays or defaults
are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; governmental restrictions or
priority; litigation; unusually severe weather; inability to secure necessary labor,
materials or tools; delays of any contractor; subcontractor or supplier; acts or
omissions of the other party; acts or failures to act of the City of La Quinta or any
other public or governmental agency or entity (other than the acts or failures to act
of the Agency which shall not excuse performance by the Agency); or any other
causes beyond the control or without the default of the party claiming an extension
of time to perform. Notwithstanding anything to the contrary in this Agreement,
an extension of time for any such cause shall be for the period of the enforced
delay and shall commence to run from the time of the commencement of the
cause, if notice by the party claiming such extension is sent to the other party
within thirty (30) days of the commencement of the cause. Times of performance
under this Agreement may also be extended in writing by the mutual agreement of
Agency and Developer.
Notwithstanding the foregoing portion of this Section 603, the
Developer is not entitled pursuant to this Section 603 to an extension of time to
perform because of past, present, or future difficulty in obtaining suitable
construction financing for the development of the Site or because of the physical
condition or suitability of the Site for the purposes of this Agreement.
D. [604] Non -Liability of Officials and Employees of the Agency and the
Developer
No member, official or employee of the Agency or the City shall be
personally liable to the Developer, or any successor in interest, in the event of any
default or breach by the Agency or the City or for any amount which may become
due to the Developer or its successors, or on any obligations under the terms of
this Agreement.
No officer, director or employee of the Developer shall be personally
liable to the Agency or the City, or any successor in interest, in the event or breach
by the Developer.
GAWPDOCS\Documents\Building Horizons\Bui1dHorizAgree06-07 one unitstf 28
E. [605] Entire Agreement, Waivers
This Agreement is executed in three (3) duplicate originals, each of
which is deemed to be an original. This Agreement includes pages 1 through 27
and Attachment Nos. 1 through 11, which constitutes the entire understanding and
agreement of the parties. Each of the foregoing Attachments are incorporated
herein by reference.
This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous agreements
between the parties or their predecessors in interest with respect to all or any part
of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing by
the appropriate authorities of the Agency and the Developer, and all amendments
hereto must be in writing by the appropriate authorities of the Agency and the
Developer.
In any circumstance where under this Agreement either party is
required to approve or disapprove any matter, approval shall not be unreasonably
withheld.
VIL [7001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
This Agreement, when executed by the Developer and delivered to the
Agency, must be authorized, executed and delivered by the Agency on or before
October 30, 2004 or this Agreement shall be void, except to the extent that the
Developer shall consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement. The date of this
Agreement shall be the date when it shall have been signed by the Agency.
IN WITNESS WHEREOF, the Agency and the Developer have signed this
Agreement on the respective dates set forth below.
LA QUINTA R
public body
Dated: moo /� By:
M. O;
ATTEST:
rZt ►� s----
DEBORAH H. PO ELL, Agency Secretary
EVELOPMENT AGENCY, a
rate aDJ politic
, Chairman
GAWPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitAf 29
APPROVED AS TO FORM:
/w, 1-e -
. KATH RINE JE N, Agency Counsel
BUILDING HORIZONS, a California nonprofit
public benefit corporation
Dated: (/&Cp By:
Its:
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ATTACHMENT NO. 1
SCOPE OF DEVELOPMENT
I. DEVELOPMENT
Development shall cause the construction and installation of a single family
home on the lot of the Site. The home shall be approximately 1,400 square feet in
size. The home shall be developed in accordance with four bedroom floor plans
and site elevations which have been or which shall have been approved by the City
and the Agency. Unit amenities include front landscaped/irrigated yards; interior
laundries with sink and cabinets; kitchens that feature tile countertops,
dishwashers, built-in ranges, oak cabinetry, and nooks/pantries; tile roofs; and
concrete block perimeter fencing.
The Developer shall complete all of the improvements set forth in this Scope
of Development (Attachment No. 1) to be constructed on the lot. All of the
improvements to be described in part IV of this Scope of Development, constitute
the "Improvements."
The developer shall commence and complete the Improvements by the
respective times established therefor in the Schedule of Performance (Attachment
No. 2).
II. DEVELOPMENT STANDARDS
The following development standards shall apply to the Developer
Improvements:
A. Building Setbacks. Minimum building setbacks for building and
parking areas shall be as required by the Redevelopment Plan and approved by the
Agency, and shall conform to the La Quinta City Code (the "City Code").
B. Building Coverage. The amount of land within the Site covered by
buildings shall be as required by the Redevelopment Plan and local zoning.
C. Building Height. Buildings shall not exceed the height as may be
limited by the Redevelopment Plan and local zoning.
D. Landscaping. The Developer shall provide and, pending the sale of the
Site, maintain landscaping on the Site.
Landscaping shall be subject to approval by the City's Planning
Department prior to planting.
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E. Utilities. Sewer drainage and utility lines, conduits or systems shall
not be constructed or maintained above the ground level of the Site. Storm
drainage for all hard surfaced areas shall be drained or may be sheet flowed to
storm sewers. All non -polluted waste water, such as waste air conditioning water,
shall be drained to the storm or sanitary drainage systems as permitted by local
codes.
F. Building Materials. All exterior walls shall be painted or covered by
the Developer with color(s) and materials subject to approval by the City's
Community Development Department. In satisfaction of this requirement, the
Developer shall submit a color and materials board for approval by the Agency.
G. Building Design. Buildings shall be constructed such that the
Developer Improvements shall conform to the City Code, and shall be effectively
and aesthetically designed.
III. PUBLIC IMPROVEMENTS AND UTILITIES
The Developer, at its own cost and expense, with the exception of the
Agency Assistance as provided in Section 201 of the Agreement, shall provide or
cause to be provided the public improvements as required by the City pursuant to
the usual City building permit requirements for off -site improvements to residential
development within the time set forth for the completion of the Developer
Improvements in the Schedule of Performance (Attachment No. 4).
Those of the improvements required to be provided pursuant to this part III
of this Scope of Development (Attachment No. 1) constitute the "Off -Site
Improvements."
IV. DEMOLITION AND SOILS
In accordance with Section 211 of the Agreement, the Developer shall at its
cost take all actions necessary to render the Site entirely suitable for such
development, including any demolition and soils work.
V. AMENDMENTS
Any material change, as reasonably determined by the Agency, in the Scope
of Development (Attachment No. 1) or in the approved site plan which affects the
size, quality, or type of development proposed for one or more of the Site shall
require the written approval of the Agency, which approval may be contingent
upon the review and renegotiation of all of the economic and financial terms of this
Agreement and such other matters as the Agency shall deem appropriate.
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It shall be up to the discretion of the Agency Executive Director whether a
proposed material change to this Scope of Development requires approval by the
Agency Board or whether such change may be approved in writing by the Agency
Executive Director.
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ATTACHMENT NO. 2
SCHEDULE OF PERFORMANCE
I. GENERAL PROVISIONS
1. Execution of Agreement by
Agency. The Agency shall
approve and execute this
Agreement, and shall deliver
one (1) copy thereof to the
Developer.
II. CONSTRUCTION DOCUMENTS
AND BUILDING PERMITS
Submittal of Site Plan.
Developer shall prepare and
submit to the Agency the Site
Plan for the two units.
3. Submission of Complete
Construction Drawings and
Landscaping Plan. Developer
shall submit to the Agency
complete Construction
(working) Drawings for the unit.
4. Obtaining of Building Permits.
Developer shall satisfy all
requirements necessary to
obtain al building and other
permits needed to commence
construction of the
Improvements for the unit.
III. ACQUISITION OF SITE
5. Conditions Precedent. All
Conditions Precedent to funding
the acquisition are satisfied.
Not later than thirty (30) days after
the date of execution and
submission of three (3) copies of
this Agreement by the Developer.
Within thirty (30) days after the
execution of this Agreement by the
Agency.
Not later than thirty (30) days after
Agency approval of Site Plan.
Not later than thirty (30) days after
Agency approval of Complete
Construction (working) Drawings
and Landscaping Plan.
Not later than sixty (60) days after
execution of this Agreement by the
Agency.
G:\WPDOCS\Documents\Building Horizons\ Build HorizAgree06-07 one unit.rtf 4
6. Acquisition of Site. The
acquiring of the Site is effected.
IV. CONSTRUCTION PHASE
7. Commencement of Construction.
Developer shall commence
construction of the
Improvements for the Site.
8. Completion of Construction.
Developer shall complete
construction of all of the
Improvements for the lot.
V. TRANSFER STAGE
9. Sales of Residences. The
Residence shall be sold to an
Eligible Person or Family.
10. Partial Certificates of
Completion. Certificates of
Completion for the lot shall be
recorded simultaneous with the
transfer to an Eligible Person or
Family.
As soon as reasonably possible after
satisfactory fulfillment of the
Conditions Precedent to the Agency
Assistance and funding of the
Developer loan.
Not later than thirty (30) days after
Developer acquisition of each lot.
Within two hundred seventy (270)
days after the commencement of
construction for each lot.
Within six (6) months from issuance
of certificate of occupancy.
Minor revisions to this Schedule of Performance may be approved in writing by the
Agency Executive Director.
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ATTACHMENT NO. 3
DEVELOPER PROMISSORY NOTE
$125,000 La Quinta, California
FOR VALUE RECEIVED, BUILDING HORIZONS, INC., collectively, "Maker"
promise to pay to LA QUINTA REDEVELOPMENT AGENCY, a public body corporate
and politic ("Holder") at La Quinta, California, or at such other address as Holder
may direct from time to time in writing, the sum of $125,000 (the "Note
Amount"), together with interest thereon at the rate set forth herein. All sums
payable hereunder shall be payable in lawful money of the, United States of
America. This Developer Promissory Note ("Note") is made in connection with the
provision by the Holder of funds equal to the approved Acquisition Costs and
Construction Costs pursuant to that certain Affordable Housing Agreement by and
among Maker and the Holder, dated as of 2006 (the
"Agreement").
1. Disbursements. The Note Amount shall be disbursed pursuant to
Sections 201 and 205 of the Agreement. The record of such disbursements shall
be recorded from time to time by the Agency Executive Director or his designee on
Exhibit A to this Developer Promissory Note.
2. Obligation to Pay. The Note Amount shall be due and payable in full
upon the Developer conveyance of the property.
3. Prepayment of Note Amount. Maker may prepay to Holder the full
Note Amount at any time prior to the due date of the Note Amount without
penalty.
4. Security. This Note is secured by a Developer Deed of Trust by and
between Maker, as trustor, and Holder, as beneficiary (the "Developer Deed of
Trust").
5. Holder May Assign. Holder may, at its option, assign its right to
receive payment under this Note without necessity of obtaining the consent of the
Maker.
6. Makers Assignment Prohibited. In no event shall Maker assign or
transfer any portion of this Note without the prior express written consent of the
Holder, which consent may be given or withheld in the Holder's sole discretion.
7. Attorneys' Fees and Costs. In the event that any action is instituted
with respect to this Note, the prevailing party promises to pay such sums as a
court may fix for court costs and reasonable attorneys' fees. Holder's right to such
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fees shall not be limited to or by its representation by staff counsel and such
representation shall be valued at customary and reasonable rates for private sector
legal services.
8. Time of the Essence. Time is of the essence of the performance of all
obligations under this Promissory Note.
9. Non -Waiver. Failure or delay in giving any notice required hereunder
shall not constitute a waiver of any default or late payment, nor shall it change the
time for any default or payment.
10. Successors Bound. This Note shall be binding upon the parties hereto
and their respective heirs, successors and assigns.
Dated:
Dated:
ATTEST:
M
0
BUILDING HORIZONS, a California nonprofit
public benefit corporation
Its:
"MAKER"
LA QUINTA REDEVELOPMENT AGENCY, a
public body corporate and politic
THOMAS P. GENOVESE, Executive Director
DEBORAH H. POWELL, Interim Agency Secretary
"HOLDER
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EXHIBIT "A" TO
ATTACHMENT NO. 3
DISBURSEMENT RECORD
Disbursement Amount Date
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Acknowledgment of
Receipt of Maker
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ATTACHMENT NO. 4
CONSTRUCTION DEED OF TRUST
[To be approved by Agency Counsel and Executive Director
for recording prior to funding under the Developer Promissory Note]
G:\WPDOCS\Documents\Building HorizonskBuildHorizAgree06-07 one unit.rd 4
ATTACHMENT NO. 5
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
LA QUINTA REDEVELOPMENT AGENCY )
78-495 Calle Tampico 1
La Quinta, California 92253
Space above for recorder.
This Agreement is recorded at the
request and for the benefit of the
Agency and is exempt from the
payment of a recording fee pursuant
to Government Code Section 6103.
LA QUINTA REDEVELOPMENT AGENCY
By:
Its:
Dated: , 2006
DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS
THIS DECLARATION OF CONDITIONS, COVENANTS AND
RESTRICTIONS is made this day of , 2006, by BUILDING
HORIZONS, a California nonprofit public benefit corporation, as declarant (the
"Developer"), with reference to the following:
A. The Developer is fee owner of record of that certain real property
located in the City of La Quinta, County of Riverside, State of California legally
described in the attached Exhibit "A" (the "Property"), which is comprised of one
(1) parcel ("Parcel"). The Property comprises the Site which is the subject of an
agreement, further described herein, for the development, operation and
maintenance of the Property for moderate -income housing. The Property is to be
used for the development of a single-family housing unit and subsequent
occupancy as a primary residence by a household meeting certain income
qualifications, all in conformity with this Declaration and an Affordable Housing
Agreement between the Developer and the Agency dated as of , a copy of
which is on file with the Agency as a public record (the "Agreement").
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B. The Property is within La Quinta Redevelopment Project Area No. 1
(the "Project Area") which was approved and adopted by Ordinance No. 43 of the
City Council of the City of La Quinta on November 29, 1983 and subsequently
amended by Ordinance No. 258 on December 20, 1994, and by Ordinance No. 264
on March 7, 1995.
C. The La Quinta Redevelopment Agency ("Agency") and the Developer
have entered into an Affordable Housing Agreement dated as of , 2006
concerning the development and use of the Property (the "Agreement") which
Agreement is on file with the Agency as a public record and is incorporated herein
by reference and which Agreement provides for the execution and recordation of
this document.
D. Developer deems it desirable to impose a general plan for the use and
maintenance of the Property, and to adopt and establish covenants, conditions and
restrictions upon the Property for the purpose of enforcing and protecting the
value, desirability and attractiveness thereof.
E. Developer will convey title to all portions of said Property (including
each Parcel) subject to certain protective covenants, conditions, and restrictions
hereinafter set forth.
NOW, THEREFORE, Declarant hereby covenants, agrees and declares
that all of the Property shall be held, sold, conveyed, hypothecated, encumbered,
used, occupied and improved, subject to the following covenants, conditions,
restrictions and easements which are hereby declared to be for the benefit of the
whole Property. These covenants, conditions, restrictions and easement shall run
with the Property and shall be binding on all parties having or acquiring any right,
title or interest in the Property or any part thereof and shall inure to the benefit of
each owner thereof and their successors and assigns, and are imposed upon the
Property and every part thereof (including each Parcel) as a servitude in favor of
each and every Parcel as the dominant tenement or tenements.
NOW, THEREFORE, THE DEVELOPER AGREES AND COVENANTS AS
FOLLOWS:
A. Low or Moderate Income Restrictions
1 . Number of Units.
Developer shall develop one (1) detached, single-family home
(the "Restricted Unit") within the Project Area and shall develop all on -site and off -
site public improvements connected therewith, all as described and set forth in the
Scope of Development (Attachment No. 1). Developer shall restrict the unit for
sale to a Low or Moderate Income Household pursuant to the applicable income
and affordability provisions contained herein. The Developer further covenants and
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agrees that the above -referenced occupancy, ownership and affordability
requirements shall bind and be enforceable against the Site for the period of forty-
five (45) years commencing with the acquisition of the respective parcel by the
Developer with the simultaneous recording of this document.
2. Definitions.
(a) "Affordable Housing Cost" shall be that purchase price
which would result in maximum monthly housing payments for a thirty (30) year
mortgage for that portion of the purchase price which is to be paid in the form of
loan proceeds under currently prevailing mortgage loan rates or the interest rate of
any below -market mortgage program for which such purchaser has obtained a first
trust deed loan, for the low or moderate income group calculated pursuant to
Health and Safety Code Section 50052.5, which sets forth the following formula:
Lower Income Households - whose gross incomes exceed the
maximum income for very low income households and do not exceed seventy
percent (70%) of the area median income adjusted for family size, the product of
thirty percent (30%) times seventy percent (70%) of the area median income
adjusted for family size appropriate for the unit. In addition, for any lower income
household that has a gross income that equals or exceeds seventy percent (70%)
of the area median income adjusted for family size, it shall be optional for any state
or local funding agency to require that affordable housing cost not exceed thirty
percent (30%) of the gross income of the household.
Moderate Income Households - not less than twenty-eight
percent (28%) of the gross income of the household, nor more than the product of
thirty -five percent (35%) times the greater of one hundred ten percent (110%) of
area median income adjusted for family size appropriate for the Affordable Unit, or
the gross income of the household for households earning greater than one hundred
percent (1 10%) and not more than one hundred twenty percent (120%) of the area
median income adjusted for family size.
(b) "Affordability Period" shall be forty-five (45) years from
the date of transfer to an Eligible Person or Family.
(c) "Eligible Person or Family" shall mean any person or
family who meets the income qualifications for Low or Moderate Income
Households.
(d) "Lower Income Household" shall mean a household
earning not greater than eighty percent (80%) of Riverside County median income,
as determined by the United States Department of Housing and Urban Development
from time to time, as set forth in Health and Safety Code Section 50093.
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(e) "Moderate Income Household" shall mean a household
earning not greater than one hundred twenty percent (120%) of Riverside County
median income, as determined by the United States Department of Housing and
Urban Development from time to time, as set forth in Health and Safety Code
Section 50093.
(f) "Owner" shall mean Developer and any successor in
interest of Developer to any lot of the Site except where a provision of this
Agreement expressly excludes Developer from the definition of owner.
(g) "Proposed Transferee" shall mean a person or family
determined to be an Eligible Person or Family to whom the Developer or any
successor Owner desires and proposes. to Transfer a Restricted Unit.
(h) "Purchase Housing Cost" or an Eligible Person or Family
purchasing a Restricted Unit shall include all of the following associated with that
Restricted Unit, estimated or known as of the date of their proposed sale of the
Restricted Unit:
(1) Principal and interest on a mortgage loan including
any rehabilitation loans, and any loan insurance fees associated therewith.
(ii) Property taxes and assessments.
(iii) Fire and Casualty insurance covering replacement
value of property improvements.
(iv) Any homeowner association fees.
Monthly housing cost of a purchaser shall be an average of estimated costs for the
next twelve (12) months
(1) "Restricted Unit" shall mean a dwelling unit, which shall
be a single-family residence, subject to the restrictions of this Agreement
(including, without limitation, this document).
(j) "Sales Price" shall mean all sums paid by a purchaser to a
seller for, or in conjunction with, the acquisition of a Restricted Unit, including the
purchase price designated in any purchase agreement, consideration for personal
property and all other costs and fees paid by the purchaser to or for the benefit of
the seller.
(k) "Transfer" shall mean any sale, assignment, conveyance,
lease or transfer, voluntary or involuntary, of any interest in a Restricted Unit.
Without limiting the generality of the foregoing, Transfer shall include (1) a transfer
by devise, inheritance or intestacy to a party who does not meet the definition of
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitstf 8
Eligible Person or Family; (ii) a life estate; (iii) creation of a joint tenancy interest;
(iv) a gift of all or any portion of a Restricted Unit; or (v) any voluntary conveyance
of a Restricted Unit. Transfer shall not include transfer to a spouse in a dissolution
proceeding; however any subsequent Transfer shall be subject to this restriction.
(1) "Transferee" shall mean any natural person or entity who
obtains ownership or possessory rights in a Restricted Unit pursuant to a Transfer.
3. Sales of Restricted Units. Developer agrees that Developer shall
sell the Restricted Unit to an Eligible Person or Family at an Affordable Housing
Cost (the "Developer Conveyance") and that during the Affordability Period each
subsequent resale of a Restricted Unit by the then -Owner thereof shall be to an
Eligible Person or Family at an Affordable Housing Cost. Developer agrees that
these Conditions, Covenants and Restrictions giving effect to the foregoing
restriction shall be recorded against the lot of the Site concurrently with the
Acquisition Escrow. Developer agrees to commence to market the Restricted Unit
not later than the completion of construction of the Restricted Unit; the Restricted
Unit shall be sold to an Eligible Person or Family prior to issuance of a Certificate of
Completion as to any such Restricted Unit for purposes of Section 322 of the
Agreement.
For purposes of satisfying the requirement that all of the Restricted
Units shall be occupied by Eligible Persons or Families: (a) an individual or family
who qualifies as an Eligible Person or Family at the time he or she first takes title to
a Restricted Unit will be deemed an Eligible Person or Family as long as he or she
continues to hold title to such Restricted Unit even though the Eligible Person or
Family subsequently ceases to meet the income or other requirements of an Eligible
Person or Family subsequently ceases to meet the income or other requirements of
an Eligible Person or Family, and (b) when an Owner releases title to a Restricted
Unit, such unit will be considered as occupied by an Eligible Person or Family if it is
held vacant and available for such occupancy until title is transferred to another
Eligible Person or Family, at which time the status of the new Owner as an Eligible
Person or Family is to be determined.
4. Restrictions on Transfer by Sale of the Restricted Property or
Any Restricted Unit.
(a) For the duration of the Affordability Period, Developer, for
itself and any subsequent Owner, hereby subjects the Site to certain restrictions
and limits the price at which Developer or any other Owner may sell and/or resell
the Site and the persons to whom Developer or any other Owner may sell the Site.
(b) DEVELOPER AND ANY OTHER OWNER UNDERSTANDS
THAT THE DETERMINATION OF THE SALES PRICE CAN BE MADE ONLY AT THE
TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST
RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 9
ACCURATELY PREDICTED AND THAT THE SALE PRICE PERMITTED HEREUNDER
MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR
REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION.
DEVELOPER AND ANY OTHER OWNER FURTHER ACKNOWLEDGE THAT, AT ALL
TIMES IN SETTING THE SALES PRICE, THE PRIMARY OBJECTIVE OF THE
AGENCY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE
PERSONS OR FAMILIES AT AFFORDABLE HOUSING COST. THE SALES PRICE
MAY BE LESS THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO
RESTRICTIONS.
Developer's Initials
(c) Transfer of a Restricted Unit. Developer and any
successor Owner may transfer a Restricted Unit only in strict accordance with the
provisions of this Agreement. Specifically, during the Affordability Period, Owner
may transfer a Restricted Unit (1) only to an Eligible Person or Family and (ii) only if
the Purchase Housing Cost does not exceed Affordable Housing Cost for the
Eligible Person or Family; and (iii) only if the Transfer has previously been approved
in writing by the Agency.
In order to comply with this Subsection 4(c), Developer and any
successor Owner must calculate the Affordable Housing Cost for the Proposed
Transferee of the Restricted Unit in accordance with the definition set forth in
Subsection 2(a) of this Section _. After calculating the Affordable Housing Cost
for the Proposed Transferee, the Owner must ensure that the sum of the Sales
Price and all costs listed in the definition of Purchase Housing Cost set forth in
Subsection 2 of Section 401 does not exceed that Affordable Housing Cost. The
Calculation of the Sales Price under this Subsection 4(c) is illustrated by example in
Attachment No. _ of the Agreement.
(d) In the event that after a good faith effort as defined in
the Buyer Promissory Note, the successor Owner is unable to obtain an Eligible
Person or Family to transfer the Restricted Unit, then after the required notice to
and approval by the Agency Executive Director the owner may sell the Restricted
Unit to a noneligible party subject to the equity share provisions of the Buyer
Promissory Note and the Covenants, Conditions and Restrictions would be
released.
(e) Notwithstanding anything to the contrary in this Section
at close of the Developer Conveyance Escrow transferring the Restricted Unit
from the Developer to the Proposed Transferee (the "Initial Owner"), the Initial
Owner shall execute a Buyer's Promissory Note as approved by the Executive and
Agency Counsel which Promissory Note shall be secured by a Second Deed of
Trust. The Buyer's Promissory Note shall be non -interest bearing. The principal
amount shall be equal to the amount of the Agency Assistance necessary for the
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Individual or Family to qualify for the Lender's loan and ensure the affordability
requirements are met as approved by the Executive Director in accordance with the
Agency's affordable housing program policies. The Note Amount shall be due and
payable according to its terms including any applicable equity sharing provision.
However, should the Initial Owner transfer the Restricted Unit to an Eligible Person,
Family at Affordable Housing Cost, the Transferee shall assume the Promissory
Note (Attachment No. 8 to the Agreement) and Agency shall extend the due date
of the Note Amount until the next Transfer of the Restricted Unit. The foregoing
provisions will apply to every successive Transfer during the Affordability Period.
5. Process to Complete Transfer by Sale of Restricted Units. Upon
the Transfer by sale of a Restricted Unit, the following procedures shall apply:
(a) Notice to City: Owner shall send to the Agency in care
of the La Quinta Housing Department (or its successor), at P.O. Box 1504, La
Quinta, California 922547, the form attached hereto as Attachment No. _ fully
completed and executed by the Owner and the Proposed Transferee (the "Approval
Request") .
(b) Qualification of Proposed Transferee. No Transfer shall
occur unless and until determination is made based o the Certificate in the form of
Attachment No. _ attached hereto ("Certificate") and attachments thereto, that
the Proposed Transferee (1) intends to occupy the Restricted Unit as the Proposed
Transferee's principal residence and (ii) is an Eligible Person or Family. Each
Proposed Transferee shall submit a Certificate to the Developer certifying its intent
with regard to the occupancy of the Restricted Unit and as to the truth and
accuracy of all information supplied as to the Gross Income (calculated as set forth
in 25 Cal. Code of Regs., Section 6914) of the Proposed Transferee ("Proposed
Transferee's Certificate"). Developer or subsequent owner shall certify pursuant to
Attachment No. 13 hereof the information provided on the Proposed Transferee's
Certificate pursuant to direction on that Certificate. Developer or subsequent
owner shall be entitled to rely on the information on the Proposed Transferee's
Certificate and attachments thereto in making the determination required by this
subsection 5(b) unless the Developer or subsequent owner has knowledge of, or a
reasonable basis for belief as to the inaccuracy or falsehood of the Proposed
Transferee's Certificate.
(c) The Sales Price for the Restricted Unit shall not exceed
the maximum price at which the Purchase Housing Cost to be paid by the Proposed
Transferee would not exceed Affordable Housing Cost. The calculation of the
Sales Price under this subsection is illustrated by example in Attachment No. 13
attached hereto. However, in determining Affordable Housing Cost, the family size
of the Proposed Transferee shall be deemed to be 2 persons in the case of a 1
bedroom, 3 persons for a 2 bedroom, 4 persons for a 3 bedroom, or 5 persons for
a 4 bedroom Restricted Unit. If the actual family size of the Proposed Transferee is
larger, then the actual family size shall be used.
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(d) Certificates from Parties. With respect to the sale of a
Restricted Unit, Developer or subsequent owner shall submit to the Agency, not
later than four (4) weeks prior to close of escrow on the sale of a Restricted Unit, a
certificate that (1) the Developer or subsequent owner has made the affirmative
determinations required by Section 4(a) above and (ii) the Sales Price conforms
with Section 4(b) above. The Developer or subsequent owner shall concurrently
submit to the Agency the Proposed Transferee's Certificate and all attachments
thereto and all other documents or material with regard to information required by
Sections 4(a) and/or (b) above, whether or not relied on by the Developer. Further,
the Developer or subsequent owner and Proposed Transferee each shall certify in
writing, in a form acceptable to the Agency, that the Transfer shall be closed in
accordance with, and only with, the terms of the sales contract and other
documents submitted to and approved by the Agency and that all consideration
delivered by the Proposed Transferee to Developer or subsequent owner has been
fully disclosed to the Agency. The written certificate shall also include a provision
that, in the event a Transfer is made in violation of the terms of this Agreement or
false or misleading statements are made in any documents or certificate submitted
to the Agency for its approval of the Transfer, the Agency shall have the right to
file an action at law or in equity to seek termination and/or rescission of the sales
contract and/or declare the sale void, notwithstanding the fact that the Transfer
may have closed and become final as between Developer or subsequent owner and
its Transferee. In the event Developer for the initial transfer or subsequent owner
for each following transfer fails to comply with Sections 4(a) or 4(b) above, any
costs, liabilities or obligations incurred by the Developer or subsequent owner and
its Transferee for the return of any monies paid or received or for any costs and
legal expenses, shall be borne Jointly and severally by the Developer and its
transferee and such parties shall hold the City and Agency harmless and reimburse
their expenses, legal fees and costs for any action and City and/or Agency take in
enforcing the terms of this Section
(e) Execution of Promissory Note and Second Deed of Trust.
Notwithstanding anything to the contrary in this Agreement, at close of Escrow of
the sale of the Housing Unit from the Developer to the Buyer, the Buyer shall
execute a Buyer Promissory Note which shall be secured by a Second Deed of
Trust. Said Second Deed of Trust shall be subordinate to any mortgage(s) obtained
by the Owner for the purpose of securing funds to be applied to the Sales Price of
the Housing Unit. The Buyer Promissory Note shall be non -interest bearing. The
principal amount of the Promissory Note shall be an amount equal to the amount
actually given as cash plus an Agency Equity Share Amount which becomes
applicable only, in the event that the Buyer is unable after good faith efforts to find
an Eligible Person or Family to transfer the home at Affordable Housing Cost. In
the event that the Buyer has provided the Agency with evidence of their good faith
efforts then Agency may approve the sale to a nonqualified buyer and release the
covenants by receiving in addition to the cash amount originally provided the
additional Agency Equity Amount as provided under the terms of the Buyer
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 12
Promissory Note.
So long as the Transferee purchasing the Housing Unit from the
Owner is an Eligible Person or Family and the Sale of the Housing Unit is made at a
price which is not in excess of Affordable Housing Cost, the Transferee shall
assume the obligations of the Owner under the Promissory Note and Second Deed
of Trust to repay the Agency Equity pursuant to the Promissory Note by execution
of an assumption agreement in the form set forth as Attachment No. _ of this
Agreement, together with other written documentation satisfactory to the Agency,
and Agency shall extend the due date of the Agency Equity pursuant to the Note
Amount until the next Transfer of the Housing Unit by said Transferee. At such
next Transfer, the Agency will again extend the due date of the Agency Equity
pursuant to the Note Amount if the Sale or Transfer complies with the
requirements of this Section. So long as each Transferee from the Owner and each
subsequent Owner: (1) is an Eligible Person or Family, (2) acquires the Housing
Unit at an Affordable Housing Cost, and (3) assumes the obligations of the
predecessor Owner as aforesaid; then the Agency agrees to extend the due date of
the Agency Equity pursuant to the Note Amount and the transferring Owner shall
not be required to pay the Agency Equity potion of the Note Amount upon transfer
of the Housing Unit.
The Agency Equity payment requirement is intended as a penalty
against the Owner, to capture a portion of the equity in the Restricted Property for
the benefit of the Agency/Holder, in the event that the Owner makes a ale of the
Restricted Property to a Buyer that is not an Eligible Person or Family. This equity
recapture requirement is intended to be a cumulative remedy, together with all
other remedies available to the Agency/Holder to compensate for the removal of
the affordable housing covenants of the Grant Deed and this Agreement on the
Housing Unit, to compensate the Agency for the administrative costs of operating
the housing program of the Agency and to provide funds to the Agency to further
assist low and moderate income persons in the provision of housing. In the event
the equity recapture provisions of the Promissory Note are found by a court or
administrative agency of competent jurisdiction to be in contravention of law or
administrative regulation, the Applicable Percentage shall be reduced to the
maximum percentage allowable by applicable law or administrative regulation, or
may be otherwise modified by judicial decree or order so as to comply with
applicable law.
(f) Written Consent of Agency Required Before Transfer. During
the Affordability Period the Restricted Property or the Restricted Unit, as the case
may be, and any interest therein, shall not be conveyed by any Transfer except
with the express written consent of the Agency, which consent shall be given only
if the Transfer is consistent with the Agency's goal of creating, preserving,
maintaining and protecting housing in the City of La Quinta for Eligible Persons and
Families and shall be in accordance with the provisions of this subsection 5. This
provision shall not prohibit the encumbering of title for the sole purpose of securing
financing of the purchase price of the Restricted Unit.
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitstf 13
(g) Delivery of Documents. Upon the close of the proposed
Transfer, the Owner and Transferee, as applicable, shall provide the Agency with a
certified copy of the recorded Assumption Agreement, a copy of the final sales
contract, settlement statement, escrow instructions, all certificates required by this
subsection 5 and any other documents which the Agency may request.
6. Covenants of Owner. The Owner of the Restricted Unit by
acceptance of a deed to the Restricted Unit covenants and agrees that, at all times
during the Affordability Period, its Restricted Unit will be continuously occupied by
Owner as its principal residence, and shall not be rented, subleased, or subject to
any other business arrangement, whereby consideration shall be paid by any
occupant of a Restricted Unit to the Owner of the Restricted Unit; provided, if the
Restricted Unit is occupied by an Eligible Person or Family, the family members
whose income was considered in determining the eligibility of that family may make
monetary contributions toward the Purchase Housing Costs of the Restricted Unit.
Owner agrees that it shall not record or cause the recordation of any deed of trust
(a "Further Encumbrance") securing a note having an original principal sum which,
when added to the sum of the principal amount(s) of any notes secured by any
deeds of trust against the Restricted Property as of the date of recordation of the
Further Encumbrance, exceeds the fair market value of the Restricted Property.
B. Use Restrictions. The Property shall be occupied and used as follows:
1 . The single-family home on the Parcel ("Unit") shall be used only
for private dwelling purposes and for no other purposes. The Unit shall not be
leased, subleased, rented or otherwise; rather, the Unit shall be the principal
dwelling of the owner thereof and his family.
2. There shall be no structural alternation, construction or removal
of any structure on any Parcel (other than repairs or rebuilding permitted herein)
without the approval of the appropriate City departments or the Agency and in
conformance with the City Code.
C. Maintenance. The exterior areas of the Parcel shall be kept free of
rubbish, debris and other unsightly or unsanitary materials.
The Owner shall have the affirmative obligation to prevent the
occurrence on the Parcel owned by such Owner of what might be considered a fire
hazard or a condition dangerous to the public health, safety and general welfare; or
constitute an unsightly appearance or otherwise detract from the aesthetic and
property values of neighboring properties. The following minimum performance
standards for the maintenance of the Unit and landscaping on the Parcel shall be
adhered to by the Owner.
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitstf 14
vegetation.
following:
(1) Landscaping on the Property shall be absent of the following:
(a) Lawns with grasses in excess of six (6) inches in height
(b) Untrimmed hedges.
(c) Dying trees, shrubbery, lawns and other plant lift from
lack of water or other necessary maintenance.
(d) Trees and shrubbery grown uncontrolled without proper
pruning.
(e) Vegetation so overgrown as to be likely to harbor rats or
vermin.
(f) Dead, decayed or diseased trees, weeds and other
(g) Inoperative irrigation system(s).
(2) Yard areas shall be maintained so as to be absent of the
(a) Broken or discarded furniture, appliances and other
household equipment stored in yard areas for periods
exceeding one (1) week.
(b) Packing boxes, lumber, trash, dirt and other debris stored
in yards for unreasonable periods in areas visible from
public property or neighboring properties.
(3) No building, wall or fence may be left in an unmaintained
condition so that any of the following exist:
(a) Buildings abandoned, boarded up, partially destroyed or
left unreasonably in a state or partial construction.
(b) Unpainted buildings or buildings with peeling paint in
such a condition as to
I. Cause dry rot, warping and termite infestation; or
ii. Constitute an unsightly appearance that detracts
form the aesthetic or property values of
neighboring properties.
G:\WPDOCS\Documents\Building Horizons\Bui1dHorizAgree06-07 one unit.rtf 15
(c) Broken windows, constituting hazardous conditions
and/or inviting trespassers and malicious mischief.
(d) Damaged garage doors that may become inoperative or
unsafe to operate.
(e) Graffiti remaining on any portion of the property for a
period exceeding ten (10) days.
(f) Building interiors and exteriors shall be maintained to
meet standards of similar residential property in the City
of La Quinta.
D. City's Right of Review and Enforcement.
The City of La Quinta (the "City") and the Agency shall be made a
party to this Declaration for the limited purpose as specified herein as follows:
1. Changes or amendments to this Declaration must be submitted
for City/Agency review and approval.
2. In the event of inaction by any Owner, the City and Agency are
hereby granted expedient power to enforce all provisions of this Declaration
including, but not limited to, the maintenance of the Improvements and all yards,
buildings and landscaping areas within the Site.
E. Miscellaneous Provisions.
1. If any provision of this Declaration or portion thereof, or the
application to any person or circumstances, shall to any extent be held invalid,
inoperative or unenforceable, the remainder of this Declaration, or the application of
such provision or portion thereof to any other persons or circumstances, shall not
be affected thereby; it shall not be deemed that any such invalid provision affects
the consideration for this Declaration; and each provision of this Declaration shall
be valid and enforceable to the fullest extent permitted by law.
2. This Declaration shall be construed in accordance with the laws
of the State of California.
3. This Declaration shall be binding upon and inure to the benefit
of the successors and assigns of the Developer.
4. In the event action is instituted to enforce any o the provisions
of this Declaration, the prevailing party in such action shall be entitled to recover
fro the other party thereto as part of the judgment, reasonable attorney's fees and
costs.
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 16
F. The covenants and agreements established in this Declaration shall,
without regard to technical classification and designation, be binding on the Owner
and any successor in interest to the Property, or any part thereof for the benefit of
and in favor of the Agency, its successor and assigns, and the City of la Quinta,
and shall remain in effect for thirty (30) days from the date of the recording of this
document).
IN WITNESS WHEREOF, Owner has executed this instrument the day and
year first hereinabove written.
Dated:
BUILDING HORIZONS, INC., a California
corporation
M
Its:
"OWNER"
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitAf 17
EXHIBIT "A" TO
ATTACHMENT NO. 5
THE PROPERTY
Assessor Parcel Number 77�"04 �,'tv f L
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 18
ATTACHMENT NO. 6
CERTIFICATE OF COMPLETION
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.
CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT
WHEREAS, by an Affordable Housing Agreement dated , 2007, by
and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate
and politic (hereinafter referred to as the "Agency") and BUILDING HORIZONS,
INC. (collectively referred to as the "Developer"), the Developer has constructed
improvements upon the real property (the "Site"), legally described on the attached
Exhibit A, by constructing or causing to be constructed the improvements thereon
according to the terms and conditions of said Affordable Housing Agreement (the
"Agreement"); and
WHEREAS, pursuant to Section 314 of the Agreement, promptly after
completion of the Improvements the Agency shall furnish the Developer with a
Certificate of Completion upon written request therefor by the Developer; and
WHEREAS, the issuance by the Agency of the Certificate of Completion shall
be conclusive evidence that the construction of the Improvements conforms to the
Agreement; and
WHEREAS, the Developer has requested that the Agency furnish the
Developer with the Certificate of Completion; and
WHEREAS, the Agency has conclusively determined that the construction of
the Improvements conforms to the Agreement;
NOW, THEREFORE:
1. As provided in the Agreement, the Agency does hereby certify that
the construction of the Improvements required to be constructed on the Site
described in Exhibit "A" hereto has been satisfactorily performed and completed,
GAMDOMDocuments\Building Horizons\Bui1dHorizAgree06-07 one unit.rtf 1
and that such development an construction work complies with the Agreement.
2. This Certificate of Completion does not constitute evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of
a mortgage or any insurer of a mortgage security money loaned to finance the work
of construction if improvements and development of the Site, or any part hereof.
This Certificate of Completion is not a notice of completion as referred to in
Section 3093 of the California Civil Code.
3. This Certificate of Completion does not denote completion of any
work required to be completed, other than on the Site.
4. The Deed of Trust recorded as document no. among the
official land records of the County of Riverside and those Conditions, Covenants
and Restrictions recorded as Document No. among the official land records
of the County of Riverside shall remain in full force and effect.
IN WITNESS WHEREOF, the Agency has executed this Certificate as of this
day of , 2007.
M3
ATTEST:
LA QUINTA REDEVELOPMENT AGENCY
THOMAS P. GENOVESE, Executive Director
DEBORAH H. POWELL, Interim Agency Secretary
NOTARY
GAWPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 2
ATTACHMENT NO. 7
MAXIMUM SALES PRICE ILLUSTRATION
[This shall be prepared when Developer is ready to
start the sale of the unit]
BuildHoriz gree06-07 one unit
ATTACHMENT NO. 8
CERTIFICATE OF PROPOSED TRANSFEREE
THIS FORM MUST BE DELIVERED TO THE OWNER BEFORE PROCEEDING WITH
ANY TRANSFER OF THE PROPERTY.
, 20
1. The Proposed Transferee is
Names:
Current
Address:
Telephone Number:
2. The address of the property which the proposed transferee desires to
purchase is (the
"Property"), which was built in the La Quinta Redevelopment Project Area No. 1.
3. The proposed transferee represents, warrants and covenants the following:
home.
(a) The proposed transferee has never previously owned a single-family
(b) The Property will be the principal residence of the proposed transferee.
(c) The combined maximum annual income
household members of the proposed transferee is S_
must reflect income form all sources.)
in the current year for all
. (This figure
(d) The proposed transferee will deliver to the Agency a signed financial
statement on a form acceptable to the Agency.
4. The proposed transferee's household consists of the following persons who
will reside in the Property:
GAMDOMDocuments\Building Horizons\Bui1dHorizAgree06-07 one unitAf 1
Adults (18 or over) - [name of each]:
Minors (under 18) [name of each]:
5. The proposed transferee must submit to the Owner, on a form available from
the Owner, an income certification so the Owner may determine if the proposed
transferee is an Eligible Person or Family.
6. A true and correct copy of the proposed transferee's most recent tax return
to the U.S. Internal Revenue Service is attached hereto.
7. The terms of the proposed transfer are:
(a) Sales price of $ This sales price is based on the
maximum price at which the Purchase Housing Cost of the Proposed Transferee
would not exceed Affordable Housing Cost. The calculation of the Sales Price
under this section is illustrated in Attachment No. to the Agreement.
IN ORDER TO ANSWER QUESTION 2(b) YOU MUST CALCULATE THE
PROPOSED SALES PRICE BASED ON AFFORDABLE HOUSING COST, TAKING
INTO CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF PURCHASE
HOUSING COST.
(b) Price of any personal property being sold by the Owner to the
proposed transferee: $ (if none, so state)
(c) The price of $ to be paid by the proposed transferee for
any services of Owner. (If no, so state).
(d) All other amounts of money or other consideration, if any, concerning
the Property or any other matter to be paid by the proposed transferee to the
Owner: $ (if none, so state).
(e) Sources of payment of sales price:
Sales price $
Cash down payment $
1 st loan $
GAWPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 2
2nd loan $
Other (describe) $
Total $
(f) The financing obtained by the proposed transferee to purchase the
Property is as follows:
1 st Loan:
Loan amount: $
Monthly payments: $
Interest rate
If variable interest, describe adjustment mechanism:
Due date:
Balloon payment amount:
Points and fees:
Lender:
Lender's address:
Loan amount: $
Monthly payments: $
Interest rate
If variable interest, describe adjustment mechanism:
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 3
w
Due date:
Balloon payment amount:
Points and fees:
Lender:
Lender's address:
Other Loans: (describe, if none, so state)
(g) The monthly Purchase Housing Cost to be paid by the proposed transferee:
1 st loan monthly payment: $
2nd loan monthly payment: $
Other loans monthly payment: $
Taxes and assessments (1/12 of
yearly taxes and assessments): $
Insurance (1/12 of yearly
premium): $
Homeowner's dues: $
Total: $
8. A true and correct copy of the purchase and sale or other agreement
between the owner and the proposed transferee is attached hereto.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
PROPOSED TRANSFEREE:
Date
Signature
Signature
GAWPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 4
Print Name
Street Address
City State Zip Code
Print Name
Telephone
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf
Developer's Certification
Based on the Proposed Transferee's Certificate above, and all documents attached
hereto, Developer hereby certifies that:
(1) Proposed Transferee is an Eligible Person or Family; and
(2) The monthly Purchase Housing Cost to be paid by the Proposed
Transferee shall not exceed the monthly Affordable Housing Cost.
[Capitalized terms used above are defined in the Agreement to which this
certificate is attached.]
OWNER:
[Name]
Date:
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitstf 6
ATTACHMENT NO.9
NOTICE OF INTENT TO TRANSFER
NOTICE OF INTENT TO TRANSFER MUST BE DELIVERED
TO THE LA QUINTA REDEVELOPMENT AGENCY PRIOR
TO PROCEEDING WITH ANY TRANSFER OF THE
PROPERTY.
From:
To: La Quinta Redevelopment Agency
c/o City of La Quinta
Community Development Department
P. 0. Box 1504
La Quinta, CA 92247
Attn: Development Officer
Re:
La Quinta, CA (the "Property")
Redevelopment Project Area
(street address)
("Owner")
Owner desires to [sell, convey, transfer by inheritance or devise, lease, gift,
otherwise transfer] (circle appropriate words) the Property.
If the Agency has a program to help locate an Eligible Family, does the
Owner want the Agency to help look for an Eligible Person or Family to buy the
Property?
Yes
No
Date:
Date:
Signature of Owner
I—)
Day time telephone of Owner
Signature of Owner
Day time telephone of Owner
GAMDOMDocuments\Building Horizons\ Build HorizAgree06-07 one unit.rtf 1
ATTACHMENT NO. 10
REQUEST FOR APPROVAL OF PROPOSED TRANSFEREE
THIS FORM MUST BE DELIVERED TO THE LA QUINTA REDEVELOPMENT AGENCY
BEFORE PROCEEDING WITH ANY TRANSFER OF THE PROPERTY
,20
La Quinta Redevelopment Agency
c/o City of La Qu,inta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Development Officer
Redevelopment Project Area
Re: Request for Approval of Proposed Transferee
To Whom It May Concern:
The undersigned is the owner of real property in La Quinta, located at
(the "Property"), which was
built within the Redevelopment Project Area.
The Owner now desires to transfer the Property and by this letter is
requesting the City of La Quinta to approve the proposed transferee.
1 . The Proposed Transferee is
Names:
Current
Address:
Telephone Number:
2. The terms of the proposed transfer are
GAWPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 1
(a) Sales price of $ . This sales price is based on the lesser of
(1) Fair market value; or
The maximum price at which the Purchase Housing Cost
of the Proposed Transferee would not exceed Affordable
Housing Cost. The calculation of the Sales Price under
this subsection (ii) is illustrated in Attachment No. _ to
the Agreement.
IN ORDER TO ANSWER QUESTION 2(b) YOU MUST CALCULATE THE
PROPOSED SALES PRICE BASED ON AFFORDABLE HOUSING COST, TAKING
INTO CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF PURCHASE
HOUSING COST.
(b) Price of any personal property being sold by the Owner to the
proposed transferee: $ (If none, so state)
(c) The price of $ to be paid by the proposed transferee for
any services of Owner. (If none, so state).
(d) All other amounts of money or other consideration, if any, concerning
the Property or any other matter to be paid by the proposed transferee to the
Owner: $ (if none, so state).
(e) Sources of payment of sales price:
Sales price $
Cash down payment $
1 st loan $
2nd loan $
Other (describe) $
Total $
(f) The financing obtained by the proposed transferee to purchase the
Property is as follows:
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 2
1 st Loan:
Loan amount: $
Monthly payments: $
Interest rate
If variable interest, describe adjustment mechanism:
Due date:
Balloon payment amount:
Points and fees:
Lender:
Lender's address:
2nd Loan:
Loan amount: $
Monthly payments: $
Interest rate
If variable interest, describe adjustment mechanism:
Due date:
Balloon payment amount:
Points and fees:
Lender:
Lender's address:
G:\WPDOCS\Documents\Building Horizons\Bui1dHorizAgree06-07 one unit.rtf 3
Other Loans: (describe, if none, so state)
(g) The monthly Purchase Housing Cost to be paid by the proposed transferee:
1 st loan monthly payment: $
2nd loan monthly payment: $
Other loans monthly payment: $
Taxes and assessments 0 /12 of
yearly taxes and assessments): $
Insurance (1/12 of yearly
premium): 5
Homeowner's dues: $
Total: $
3. The proposed transferee represents, warrants and covenants the following:
(a) The Property will be the principal residence of the proposed transferee.
(b) The combined maximum annual income for all household members of
the proposed transferee is $ (This figure must include al sources of
income).
(c) The proposed transferee will deliver to the Agency a signed financial
statement on a form acceptable to the Agency.
4. The proposed transferee's household consists of the following persons who
will reside in the Property:
Adults (18 or over) - [name of each]:
Minors (under 18) [name of each]:
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitAf 4
5. The proposed transferee must submit to the Owner, on a form available from
the Owner, an income certification so the Owner may determine if the proposed
transferee is an Eligible Person or Family.
6. A true and correct copy of the proposed transferee's most recent tax return
to the U.S. Internal Revenue Service is attached hereto.
7. A true and correct copy of the purchase and sale or other agreement
between the owner and the proposed transferee is attached hereto.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
OWNER:
Date
Signature
Print Name
Street -Address
City State Zip Code
Signature
Print Name
Telephone
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 5
PROPOSED TRANSFEREE:
Date
Signature
Print Name
Street Address
City State Zip Code
Signature
Print Name
Telephone
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf
ATTACHMENT NO. 11
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
LA QUINTA REDEVELOPMENT AGENCY
78-495 Calle Tampico )
La Quinta, California 92253
Space above for recorder.
ASSUMPTION AGREEMENT
This Assumption Agreement is entered into by:
The La Quinta Redevelopment Agency ("Agency")
("Selling Owners")
("Buying Owners")
Date of Agreement:
FACTS
A. Selling Owners are all of the owners of property commonly known as
, La Quinta, California (the "Property") and more
particularly described in Exhibit A attached hereto and incorporated herein by
reference.
B. The Property is subject to the Affordable Housing Agreement between
the Agency and Building Horizons, Inc., a California nonprofit public benefit
corporation, dated as of (the "Agreement", a copy of
which is on file with the Agency as a public record and is incorporated herein by
reference, the Grant Deed recorded at Book , Page Series M of the
official land records of Riverside County (the "Grant Deed"), and that certain
Second Deed of Trust recorded at Book , Page _, Series No. of the
official land records of Riverside County (the "Deed of Trust", and those
Conditions, Covenants and Restrictions, recorded at Book , Page , Series
No. _ of the Official Records of Riverside County (the "Restriction"). The
Agreement, the Deed of Trust, and the Restriction restricts the sales price that can
be charged for the Property and the persons to whom the Property can be sold.
GAWPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 1
C. Buying Owners desire to purchase the Property. Buying Owners
understand that the Restriction will limit the purchase price they can receive when
they sell the Property and will limit the people to whom they can sell the Property.
D. Buying Owners are able to purchase the Property because the
purchase price of the Property may be less than other similar property without
Restrictions. For this reason Buying Owners desire to purchase the Property.
E. In order to purchase the Property, Buying Owners must assume all
obligations of the Owner under the Agreement, the Deed of Trust, and the
Restriction and must agree to bound by al provisions in the Restriction.
NOW, THEREFORE, Buying Owners agree as follows:
1. Acknowledgment of Limitation on Future Price. BUYING OWNERS
UNDERSTAND THAT WHEN BUYING OWNERS DESIRE TO SELL OR TRANSFER
THE PROPERTY THAT THE ALE PRICE CAN BE DETERMINED ONLY AT THE TIME
OF THE PROPOSED TRANSFER TAKING INTO CONSIDERATION INTEREST RATES,
PROPERTY TAXES AND OTHER FACTS THAT CANNOT BE PREDICTED
ACCURATELY AND THAT THE SALES PRICE MAY NOT INCREASE OR DECREASE
IN THE SAME MANNER AS OTHER SIMILAR PROPERTY THAT IS NOT
ENCUMBERED WITH THE AGREEMENT, THE DEED OF TRUST, AND THE
RESTRICTION, BUYING OWNERS ALSO ACKNOWLEDGE THAT ALL TIMES IN
SETTING THE SALES PRICE THE PRIMARY OBJECTIVE OF THE AGENCY AND THE
RESTRICTION IS TO PROVIDE HOUSING TO ELIGIBLE PERSONS OR FAMILIES AT
AFFORDABLE HOUSING COST. THE SALE PRICE, WHEN BUYING OWNERS
DECIDE TO SELL THE PROPERTY, WILL LIKELY BE LESS THAN OTHER SIMILAR
PROPERTIES WHICH HAVE NO RESTRICTIONS.
Buyer's Initials
2. Understand the Agreement, the Deed of Trust, and the Restriction.
Buying Owners represent that they have read the Restriction and fully understand
the Agreement, the Deed of Trust, and the Restriction.
3. Owner Occupancy. Buying Owners agree that they will occupy the
Property as their primary residence and that they will comply with all provisions of
the Agreement, the Deed of Trust and the Restriction relating to the occupancy of
the Property.
4. Assumption of Obligations Under the Agreement, the Deed of Trust,
and the Restriction. As a material consideration to the Agency in approving Buying
Owners, Buying Owners hereby assume al obligations of the Owner (as defined in
the Agreement, the Deed of Trust, and the Restriction), related to the Property set
forth in the Agreement, the Deed of Trust, and the Restriction. Buying Owners
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 2
agree to be bound by all duties and obligations of the Owner in the Agreement, the
Deed of Trust, and the Restriction and agree to comply with all provisions thereof
for the term of the Agreement, the Deed of Trust and the Restriction. Buying
Owners agree as set forth above in order to have the benefit of the restricted
purchase price for which the Property is offered.
5. Remedies. Upon the occurrence of an Event of Default, the Agency
shall have the following remedies:
(a) Specific Performance. The Agency shall have the right to bring
an action for specific performance of this Agreement to require the Developer to
comply whit the terms and provisions of this Agreement. Developer acknowledges
that it is the intention of Developer and the Agency that these provisions be
specifically enforceable to maintain the supply of affordable housing for Eligible
Persons and Families.
(b) Application to Court. The Agency may apply to a court of
competent jurisdiction for an injunction prohibiting a proposed Transfer in violation
of this Agreement, for a declaration that a Transfer is void or for any other such
relief as may be appropriate.
(c) All Remedies Available and Cumulative. Upon the occurrence of
an Event of Default, the Agency shall have the right to exercise all the rights and
remedies, and to maintain any action at law or suits in equity or other real property
proceedings, to enforce the provisions of this Assumption Agreement, the
Agreement, the Restriction and the Deed of Trust, and to cure any Event of Default
or violation hereof. No delay in enforcing the provisions thereof as to any Event of
Default or violation shall impair, damage or waive the right of the Agency to
enforce the provisions of this Agreement in the future or any continuing or new
breach or violation of any of the covenants or restrictions contained in this
Assumption Agreement, the Agreement, the Restrictions, and the Deed of Trust.
All rights and remedies, including without limitation those set forth in Section (a)
above, of any party legally entitled to enforce this Assumption Agreement, the
Agreement, the Restrictions, and the Deed of Trust, shall be cumulative and the
exercise of any such right or remedy shall not impair or prejudice and shall not be a
waiver of the right to exercise any other such right and remedy.
IN WITNESS WHEREOF, the parties have executed this Assumption
Agreement to be effective on the date of recordation of a deed conveying the
Property to Buying Owners.
Date Buying Owner
Date Buying Owner
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unitstf
3
Based on information provided by Selling Owners and Buying Owners and on
Buying Owners execution hereof, the La Quinta Redevelopment Agency hereby
approves Buying Owners to purchase the Property subject to this Agreement.
Date
LA QUINTA REDEVELOPMENT AGENCY
By:
Name:
Title:
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 4
DEVELOPER PROMISSORY NOTE
$125,000 La Quinta, California
FOR VALUE RECEIVED, BUILDING HORIZONS, INC., collectively, "Maker"
promise to pay to LA QUINTA REDEVELOPMENT AGENCY, a public body corporate
and politic ("Holder") at La Quinta, California, or at such other address as Holder
may direct from time to time in writing, the sum of $125,000 (the "Note
Amount"), together with interest thereon at the rate set forth herein. All sums
payable hereunder shall be payable in lawful money of the United States of
America. This Developer Promissory Note ("Note") is made in connection with the
provision by the Holder of funds equal to the approved Acquisition Costs and
Construction Costs pursuant to that certain Affordable Housing Agreement by and
among Maker and the Holder, dated as of 2006 (the
"Agreement").
1. Disbursements. The Note Amount shall be disbursed pursuant to
Sections 201 and 205 of the Agreement. The record of such disbursements shall
be recorded from time to time by the Agency Executive Director or his designee on
Exhibit A to this Developer Promissory Note.
2. Obligation to Pay. The Note Amount shall be due and payable in full
upon the Developer conveyance of the property.
3. Prepayment of Note Amount. Maker may prepay to Holder the full
Note Amount at any time prior to the due date of the Note Amount without
penalty.
4. Security. This Note is secured by a Developer Deed of Trust by and
between Maker, as trustor, and Holder, as beneficiary (the "Developer Deed of
Trust").
5. Holder May Assign. Holder may, at its option, assign its right to
receive payment under this Note without necessity of obtaining the consent of the
Maker.
6. Makers Assignment Prohibited. In no event shall Maker assign or
transfer any portion of this Note without the prior express written consent of the
Holder, which consent may be given or withheld in the Holder's sole discretion.
7. Attorneys' Fees and Costs. In the event that any action is instituted
with respect to .this Note, the prevailing party promises to pay such sums as a
court may fix for court costs and reasonable attorneys' fees. Holder's right to such
G:\WPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 1
fees shall not be limited to or by its representation by staff counsel and such
representation shall be valued at customary and reasonable rates for private sector
legal services.
8. Time of the Essence. Time is of the essence of the performance of all
obligations under this Promissory Note.
9. Non -Waiver. Failure or delay in giving any notice required hereunder
shall not constitute a waiver of any default or late payment, nor shall it change the
time for any default or payment.
10. Successors Bound. This Note shall be binding upon the parties hereto
and their respective heirs, successors and assigns.
Dated:
Dated:
ATTEST:
g'a-occ
BUILDING HORIZONS, a California nonprofit
public bey/efit corporation
By:``!: f
�. 7tti
LA QUINTA REDEVELOPMENT AGENCY, a
public body corporate and politic
By:
THOMAS P. GENOVESE, Executive Director
DEBORAH H. POWE L, Interim Agency Secretary
"HOLDER"
GAWPDOCS\Documents\Building Horizons\BuildHorizAgree06-07 one unit.rtf 2
Recording Requested By And
When Recorded Return to:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383
DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND RIDER ATTACHED HERETO
NOTE: RIDER ATTACHED TO THIS DEED OF TRUST
This DEEDQF TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED HERETO ("Deed of Trust"),
is made 1&.a&-S-t / cg0�� between BUILDING HORIZONS, a California nonprofit public
benefit corporation, herein called TRUSTOR, whose address is 42-600 Cook Street, Suite 120, Palm Desert,
CA 92211, First American Title Insurance Company herein called TRUSTEE , whose address is 3625 14'h
Street, Riverside, California 92501, and LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate
and politic, herein called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, Trustor's estate, dated on or about
the date hereof, in that property in the City of La Quinta, County of Riverside, State of California, described as:
APN 774-064-004
together with the rents, issues and profits thereof, subject, however, to the right, power and authority
hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the
purpose of securing (1) payment of the sum of ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS
($125,000), with interest thereon according to the terms of a promissory note dated August?, 2006 made by
Trustor, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each
agreement of Trustor incorporated by reference or contained herein; and (3) payment of additional sums and
interest thereon which may hereafter be loaned to Trustor, or his successors or assigns, when evidenced by a
promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the Property above described, Trustor
expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and
all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms
and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange County August 17,
1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office of
the county recorder of the county where said property is located, noted below opposite the name of such
county, namely:
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
Alameda
1288
556
Kings
858
713
Placer
1028
379
Sierra
38
187
Alpine
3
130-31
Lake
437
110
Plumas
166
1307
Siskiyou
506
762
Amador
133
438
Lassen
192
367
Riverside
3778
347
Solano
1287
621
Butte
1330
513
Los Angeles
T-3878
.874
Sacramento
5039
124
Sonoma
2067
427
Calaveras
185
338
Madera
911
136
San Benito
300
405
Stanislaus
1970
56
Colusa
323
391
Marin
1849
122
San Bernardino
6213
768
Sutter.
655
585
Contra Costa
4684
1
Mariposa
90
453
San Francisco
A-804
596
Tehama
457
183
Del Norte
101
549
Mendocino
667
99
San Joaquin
2855
283
Trinity
108
595
El Dorado
704
635
Merced
1660
753
San Luis Obispo
1311
137
Tulare
2530
108
Fresno
5052
623
Modoc
191
93
San Mateo
4778
175
Tuolumne
177
160
Glenn
469
76
Mono
69
302
Santa Barbara
2065
881
Ventura
2607
237
Humboldt
801
83
Monterey
357
239
Santa Clara
6626
664
Yolo
769
16
Imperial
1189
701
Napa
704
742
Santa Cruz
1638
607
Yuba
398
693
Inyo
165
672
Nevada
363
94
Shasta
800
633
Kern
3756
690
Orange
7182
18
San Diego
SERIES 5
Book 1964, Page 149774
882/015610-0040
732278.01 a07/31/06
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B (identical in all counties, and printed on pages 3 and 4 hereof) are by the
within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at
length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge
therefor does not exceed the maximum allowed by law:
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at
his address hereinbefore set forth.
SEE RIDER ATTACHED TO THIS DEED OF TRUST
STATE OF CA RNIA
COUNTY OF ✓cy ,.!
Signature of Trustor
BUILDING HOI X&PNS, a California nonprofit public
benefit corooratidd
On A, of 1, Ot / c200 L
before me,
personally appe ed 7a'4eW A§,W-g personally
known to me (or proved to me on i�f a basis of
satisfactory evidence) to be the person(s) whose
names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she kii y executed the
same in his/lker4heir authorized capacity(ies), and that
by his/her lwir signatures(s) on the instrument the
person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS d and official seAl
Signature q--,Z-1 �
(This area for official notarial seal)
Its:
882/015610-0040
732278.01 a07/31/06 -2-
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing
Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore
promptly and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all
claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof, not to commit, suffer or permit any act upon said property in violation
of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The
amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order
as Beneficiary may determine, or at the option.of Beneficiary the entire amount so collected or any part thereof may be released to Trustor: Such
application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such
action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay: at least ten (10) days before delinquency all taxes and assessments affecting said property, including assessments
on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be
prior or superior hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary of Trustee, but without obligation so to
do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same is such
manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said
property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior
or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from the date of
expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof
regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when
said statement is demanded.
B. It is mutually agreed:
1). That any award in connection with any condemnation for public use of or injury to said property or any part thereof is
hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same
effect as above provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to
require prompt payment when due of all other sums, so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting
any easement thereon, or join in any extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of
its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts
shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally
entitled thereto."
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by
Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues
and profits as they become due and payable. Upon any such default (beyond any applicable cure period), Beneficiary may at any time without
notice, either in person, by agent, or be a receiver to be appointed by a court, and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for or otherwise collect
882/015610-0040
732278.01 a07/31/06
such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection;
including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon
and taking possession of said property, the collecting of such rents, issues and profits and the application thereof as aforesaid, shall not cure or
waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default
and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed
for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale
having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said
notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in
lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public
announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed
by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person,
including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale,
Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the
amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally
entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and
duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of
proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title,
estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and
page where this Deed is recorded and the name and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby,
whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or
neuter, and the singular number includes the plural
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which
Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO , TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust.
Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby
requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above
mentioned, an all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust,
and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before
reconveyance will be made.
882/015610-0040
732278.01 a07/31/06 _2_
RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
THIS RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Rider") is
executed this day of �l�i u. �- 5=;a,,, by BUILDING
HORIZONS, a California nonprofit publie benefit corporation, herein "Trustor," in favor of the
LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, herein
"Beneficiary," the same parties to that certain form Deed of Trust With Assignment of Rents, of
even date hereto, to which this Rider is attached. This Rider is made a part of and is
incorporated into said Deed of Trust. This Rider shall supersede any conflicting term or
provision of the form Deed of Trust to which it is attached.
Reference is made to (i) that certain 2006-2007 Affordable Housing Agreement by and
between Trustor and Beneficiary dated on or about August _, 2006 (the "AHA"); (ii) that
certain Developer Promissory Note by and between Trustor and Beneficiary, dated on or about
August 2006, the repayment of which by Trustor is secured by this Deed of Trust (the
"Note"), and (iii) that certain Declaration of Conditions, Covenants and Restrictions by and
between Trustor and Beneficiary, dated August _, 2006, and recorded on even date herewith, in
the Official Records of the County of Riverside (the "Regulatory Agreement").
The parties hereto agree:
1. Property. The estate subject to this Deed of Trust is Trustor's fee estate in the real
property legally described in the foregoing Deed of Trust to which this Rider is attached (the
"Property")
2. Obligations Secured. Trustor makes this grant and assignment for the purpose of
securing the following obligations ("Secured Obligations"):
a. Payment to Beneficiary of all indebtedness at any time owing under the
terms of the Note;
b. Payment and performance of all obligations of Trustor under this Deed of
Trust;
C. Payment and performance of all obligations of Trustor under the AHA and
under the Regulatory Agreement.
d. Payment and performance of all future advances and other obligations of
Trustor or any other person, firm, or entity with the approval of Trustor,
may * agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when the obligation is evidenced
by a writing which recites that it is secured by this Deed of Trust; and
e. All modifications, extensions and renewals of any of the obligations
secured hereby, however evidenced.
882/015610-0040
732278.01 a07/31/06
3. Obligations. The term "obligations" is used herein in its broadest and most
comprehensive sense and shall be deemed to include, without limitation, all interest and charges,
prepayment charges, late charges and fees at any time accruing or assessed on any of the Secured
Obligations.
4. Subordination. Beneficiary agrees to subordinate this Deed of Trust to Trustor's
construction loan and to permanent financing, provided that (i) the maximum cumulative
principal amount of the permanent financing shall not exceed eighty percent (80%) of the
lender's appraised value of the Property upon completion of the "Improvements" as described in
Section 302 of the AHA, which amount shall be verified in writing to Beneficiary's Executive
Director's reasonable satisfaction; (ii) the construction loan(s) shall obligate Trustor to expend
loan proceeds for no other purpose than the Project; and (iii) the loan(s) shall provide that any
notice of Trustor breach or default shall also be sent to the Beneficiary at the address listed in
Section 10 and that upon receipt of such notice, Beneficiary shall have the right to (A) cure the
noticed breach or default, (B) negotiate with the lender regarding the noticed breach or default,
and (C) purchase the Property from Trustor subject to the lender's deed of trust, without the
consent of Trustor or the holder of the lender's deed of trust, and that Beneficiary's exercise of
the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to
accelerate the amounts due under the loan. Beneficiary's Executive Director shall have authority
to sign such subordination agreements on behalf of the Beneficiary. In agreeing to provide the
subordination referred to in the preceding sentence, Beneficiary hereby incorporates the finding
required to be made in accordance with Health and Safety Code Section 33334.14.
5. Incorporation. All terms of the Secured Obligations, including, but not limited to,
the terms of the Note, the Regulatory Agreement, and the AHA, are incorporated herein by this
reference. All persons who may have or acquire an interest in the Property shall be deemed to
have notice of the terms of all of the foregoing documents.
6. Mortgai;ee-in-Possession. Neither the assignment of rents set forth in the Deed of
Trust nor the exercise by Beneficiary of any of its rights or remedies hereunder shall be deemed
to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with respect
to the Property, unless Beneficiary, in person or by agent, assumes actual possession thereof.
Nor shall appointment of a receiver for the Property by any court at the request of Beneficiary or
by agreement with Trustor, or the entering into possession of the Property by such receiver, be
deemed to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with
respect to the Property.
7. No Cure. In the event Beneficiary collects and receives any rents under the Deed
of Trust upon any default hereof, such collection or receipt shall in no way constitute a curing of
the default.
8. Possession Upon Default. Upon the occurrence of and during the continuation of
a default, Beneficiary, after having given notice and the applicable cure periods having expired
with the default having not been cured (hereinafter, a "default"), may, at its option, without any
action on its part being required and without in any way waiving such default, take possession of
the Property in accordance with applicable law and have, hold, manage, lease and operate the
same, on such terms and for such period of time as Beneficiary may deem proper, and may
882/015610-0040
732278.01 a07/31/06 -4-
collect and receive all rents and profits, with full power to make, from time to time, all
commercially reasonable alterations, renovations, repairs or replacements thereto as may seem
proper to Beneficiary, and to apply such rents and profits to the payment of (a) the cost of all
such alterations, renovations, repairs and replacements, and all costs and expenses incident to
taking and retaining possession of the Property, and the management and operation thereof, and
keeping the same properly insured; (b) all taxes, charges, claims, assessments, and any other
liens which may be prior in lien or payment of the Note, and premiums for insurance, with
interest on all such items; and (c) the indebtedness secured hereby, together with all costs and
attorney's fees, in such order or priority as to any of such items as Beneficiary in its sole
discretion may determine, any statute, law, custom or use to the contrary notwithstanding. Any
amounts received by Beneficiary or its agents in the performance of any acts prohibited by the
terms of this assignment, including, but not limited to, any amounts received in connection with
any cancellation, modification or amendment of any lease prohibited by the terms of this
assignment and any rents and profits received by Trustor after the occurrence of a default shall
be held by Trustor as trustee for Beneficiary and all such amounts shall be accounted for to
Beneficiary and shall not be commingled with other funds of the Trustor. Any person receiving
any portion of such trust funds shall receive the same in trust for Beneficiary as if such person
had actual or constructive notice that such funds were impressed with a trust in accordance
therewith.
9. Receiver. In addition to any and all other remedies of Beneficiary set forth under
this Deed of Trust or permitted at law or in equity, if a default shall have occurred and not have
been cured within any applicable cure period, Beneficiary, to the extent permitted by law and
without regard to the value, adequacy or occupancy of the security for the Note and other sums
secured hereby, shall be entitled as a matter of right if it so elects to the appointment of a receiver
to enter upon and take possession of the Property and to collect all rents and profits and apply the
same as the court may direct, and such receiver may be appointed by any court of competent
jurisdiction by ex parte application and without notice, notice of hearing being hereby expressly
waived. The expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to the power herein contained shall be secured by this Deed of
Trust.
10. Notice to Beneficiary. Notices to Beneficiary shall be sent to Beneficiary
addressed to:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92263
Attn: Executive Director
[SIGNATURE ON NEXT PAGE]
882/015610-0040
732278.01 a07/31/06 -5
IN WITNESS WHEREOF, Trustor has executed this Rider on the date of Trustor's
acknowledgment hereinbelow, to be effective for all purposes as of the day and year first set
forth above.
TRUSTOR:
BUILDING HOP
public benefit cor
By:
Its: t:�Q
STATE OF CALIFORNIA )
ss
COUNTY OF S
, a California nonprofit
On before me, 7C? ��J G�?i�4�3l�� �-
personally appeared I
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/may executed the same in his/hoNtkeir authorized capacity(ies), and that by hisAwFk4 eir
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.
No Public
[SEAL]`
N p Pubic - Cdifomia .-
Wenide County
Eg*es Oct 23, 2008
& M�l
882/015610-0040
732278.01 a07/31/06 -6-
RECORDING REQUESTED BY:
ORANGE COAST TITLE COMPANY
WHEN RECORDED MAIL TO:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attention: Executive Director
ORDER NO. R-081506-66
DOC # 2006-0600696
08/15/2006 08:00A Fee:46.00
Page 1 of 11
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
11111111111111111111111111111111111111111111111111111111111111
S R I U PAGE SIZE DAt MISC LONG RFD I COPY
I
M A L 445 426 PCOR NCOR SMF NCHG EXA
VC
4q
0
DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND
RIDER ATTACHED HERETO
(Title of Document)
ENTRI�
OYOffi-EEI"! RECpRD
! $ ASAIJ OIV OCNNyPr Y
� eOITS
Recording Requested By And
When Recorded Return to:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383
DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND RIDER ATTACHED HERETO
NOTE: RIDER ATTACHED TO THIS DEED OF TRUST
This DEED,9F TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED HERETO ("Deed of Trust"),
is made &a&z-` / c P4 , between BUILDING HORIZONS, a California nonprofit public
benefit corpo a ion, herein called TRUSTOR, whose address is 42-600 Cook Street, Suite 120, Palm Desert,
CA 92211, First American Title Insurance Company herein called TRUSTEE , whose address is 3625 14th
Street, Riverside, California 92501, and LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate
and politic, herein called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, Trustor's estate, dated on or about
the date hereof, in that property in the City of La Quinta, County of Riverside, State of California, described as:
APN 774-064-004
together with the rents, issues and profits thereof, subject, however, to the right, power and authority
hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the
purpose of securing (1) payment of the sum of ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS
($125,000), with interest thereon according to the terms of a promissory note dated August J, 2006 made by
Trustor, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each
agreement of Trustor incorporated by reference or contained herein; and (3) payment of additional sums and
interest thereon which may hereafter be loaned to Trustor, or his successors or assigns, when evidenced by a
promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the Property above described, Trustor
expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and
all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms
and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange County August 17,
1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office of
the county recorder of the county where said property is located, noted below opposite the name of such
county, namely:
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
Alameda
1288
556
Kings
858
713
Placer
1028
379
Sierra
38
187
Alpine
3
I30-31
Lake
437
110
Plumas
166
1307
Siskiyou
506
762
Amador
133
438
Lassen
192
367
Riverside
3779
347
Solano
1287
621
Butte
1330
513
Los Angeles
T-3878
.874
Sacramento
5039
124
Sonoma
2067
427
Calaveras
185
338
Madera
911
136
San Benito
300
405
Stanislaus
1970
56
Colusa
323
391
Maria
1849
122
San Bernardino
6213
768
Sutter.
655
585
Contra Costa
4684
1
Mariposa
90
453
San Francisco
A-804
596
Tehama
457
183
Del Norte
l01
549
Mendocino
667
99
San Joaquin
2855
283
Trinity
108
595
El Dorado
704
635
Merced
1660
753
San Luis Obispo
1311
137
Tulare
2530
108
Fresno
5052
623
Modoc
191
93
San Mateo
4778
175
Tuolumne
177
160
Glenn
469
76
Mono
69
302
Santa Barbara
2065
881
Ventura
2607
237
Humboldt
801
83
Monterey
357
239
Santa Clara
6626
664
Yolo
769
16
Imperial
1189
701
Napa
704
742
Santa Cruz
1638
607
Yuba
398
693
Inyo
165
672
Nevada
363
94
Shasta
800
633
Kern
3756
690
Orange
7182
18
San Diego
SERIES 5
Book 1964, Page 149774
882/015610-0040
732278.01 a07/31/06
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B (identical in all counties, and printed on pages 3 and 4 hereof) are by the
within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at
length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge
therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at
his address hereinbefore set forth.
SEE RIDER ATTACHED TO THIS DEED OF TRUST
STATE OF CA RNIA
COUNTY OF ✓
Signature of Trustor
BUILDING
benefit core
On o if / o200 4
before me, AryY94�,�
personally appea ed T.1 , personally
known to me (or proved to me on Ifie basis of
satisfactory evidence) to be the person(s) whose
names(s) is/are subscribed to the within instrument and
acknowledged to me that he/s4@0*ey executed the
same in his/laerkkeir authorized capacity(ies), and that
by his/heg"r signatures(s) on the instrument the
person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS d and official se 1.
Signature
(This area for official notarial seal)
S, a California nonprofit public
882/015610-0040
732278.01 a07/31/06 -2-
EXHIBIT A
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of Riverside, City of La
Quinta, and is described as follows:
LOT 9, BLOCK 247 OF SANTA CARMELITA AT VALE LA QUINTA, UNIT NO. 23,
AS PER MAP RECORDED IN BOOK 20, PAGE 25 OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing
Deed of Trust and incorporated by reference in said Deed of Trust as being apart thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore
promptly and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all
claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation
of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The
amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order
as Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such
action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay: at least ten (10) days before delinquency all taxes and assessments affecting said property, including assessments
on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be
prior or superior hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary of Trustee, but without obligation so to
do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same is such
manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said
property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior
or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from the date of
expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof
regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when
said statement is demanded.
B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is
hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same
effect as above provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to
require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof, join in granting
any easement thereon, or join in any extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of
its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts
shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally
entitled thereto."
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by
Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues
and profits as they become due and payable. Upon any such default (beyond any applicable cure period), Beneficiary may at any time without
notice, either in person, by agent, or be a receiver to be appointed by a court, and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for or otherwise collect
882/015610-0040
732278.01 a07/31/06
such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection,
including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon
and taking possession of said property, the collecting of such rents, issues and profits and the application thereof as aforesaid, shall not cure or
waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default
and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed
for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale
having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said
notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in
lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public
announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed
by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person,
including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale,
Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the
amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally
entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and
duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of
proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title,
estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and
page where this Deed is recorded and the name and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby,
whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or
neuter, and the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which
Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO TRUSTEE
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust.
Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby
requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above
mentioned, an all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust,
and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before
reconveyance will be made.
882/015610-0040 _
732278.01 a07/31/06 -2
RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
THIS RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Rider") is
executed this / -5�r day ofby BUILDING
HORIZONS, a California nonprofit publ benefit corporation, herein "Trustor," in favor of the
LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, herein
"Beneficiary," the same parties to that certain form Deed of Trust With Assignment of Rents, of
even date hereto, to which this Rider is attached. This Rider is made a part of and is
incorporated into said Deed of Trust. This Rider shall supersede any conflicting term or
provision of the form Deed of Trust to which it is attached.
Reference is made to (i) that certain 2006-2007 Affordable Housing Agreement by and
between Trustor and Beneficiary dated on or about August _, 2006 (the "AHA"); (ii) that
certain Developer Promissory Note by and between Trustor and Beneficiary, dated on or about
August _, 2006, the repayment of which by Trustor is secured by this Deed of Trust (the
"Note"), and (iii) that certain Declaration of Conditions, Covenants and Restrictions by and
between Trustor and Beneficiary, dated August _, 2006, and recorded on even date herewith, in
the Official Records of the County of Riverside (the "Regulatory Agreement").
The parties hereto agree:
1. Property. The estate subject to this Deed of Trust is Trustor's fee estate in the real .
property legally described in the foregoing Deed of Trust to which this Rider is attached (the
"Property").
2. Obligations Secured. Trustor makes this grant and assignment for the purpose of
securing the following obligations ("Secured Obligations"):
a. Payment to Beneficiary of all indebtedness at any time owing under the
terms of the Note;
b. Payment and performance of all obligations of Trustor under this Deed of
Trust;
Payment and performance of all obligations of Trustor under the AHA and
under the Regulatory Agreement.
d. Payment and performance of all future advances and other obligations of
Trustor or any other person, firm, or entity with the approval of Trustor,
may agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when the obligation is evidenced
by a writing which recites that it is secured by this Deed of Trust; and
All modifications, extensions and renewals of any of the obligations
secured hereby, however evidenced.
882/015610-0040
732278.01 a07/31/06
3. Obligations. The term "obligations" is used herein in its broadest and most
comprehensive sense and shall be deemed to include, without limitation, all interest and charges,
prepayment charges, late charges and fees at any time accruing or assessed on any of the Secured
Obligations.
4. Subordination. Beneficiary agrees to subordinate this Deed of Trust to Trustor's
construction loan and to permanent financing, provided that (i) the maximum cumulative
principal amount of the permanent financing shall not exceed eighty percent (80%) of the
lender's appraised value of the Property upon completion of the "Improvements" as described in
Section 302 of the AHA, which amount shall be verified in writing to Beneficiary's Executive
Director's reasonable satisfaction; (ii) the construction loan(s) shall obligate Trustor to expend
loan proceeds for no other purpose than the Project; and (iii) the loan(s) shall provide that any
notice of Trustor breach or default shall also be sent to the Beneficiary at the address listed in
Section 10 and that upon receipt of such notice, Beneficiary shall have the right to (A) cure the
noticed breach or default, (B) negotiate with the lender regarding the noticed breach or default,
and (C) purchase the Property from Trustor subject to the lender's deed of trust, without the
consent of Trustor or the holder of the lender's deed of trust, and that Beneficiary's exercise of
the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to
accelerate the amounts due under the loan. Beneficiary's Executive Director shall have authority
to sign such subordination agreements on behalf of the Beneficiary. In agreeing to provide the
subordination referred to in the preceding sentence, Beneficiary hereby incorporates the finding
required to be made in accordance with Health and Safety Code Section 33334.14.
5. Incorporation. All terms of the Secured Obligations, including, but not limited to,
the terms of the Note, the Regulatory Agreement, and the AHA, are incorporated herein by this
reference. All persons who may have or acquire an interest in the Property shall be deemed to
have notice of the terms of all of the foregoing documents.
6. Mortgagee -in -Possession. Neither the assignment of rents set forth in the Deed of
Trust nor the exercise by Beneficiary of any of its rights or remedies hereunder shall be deemed
to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with respect
to the Property, unless Beneficiary, in person or by agent, assumes actual possession thereof.
Nor shall appointment of a receiver for the Property by any court at the request of Beneficiary or
by agreement with Trustor, or the entering into possession of the Property by such receiver, be
deemed to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with
respect to the Property.
7. No Cure. In the event Beneficiary collects and receives any rents under the Deed
of Trust upon any default hereof, such collection or receipt shall in no way constitute a curing of
the default.
8. Possession Upon Default. Upon the occurrence of and during the continuation of
a default, Beneficiary, after having given notice and the applicable cure periods having expired
with the default having not been cured (hereinafter, a "default"), may, at its option, without any
action on its part being required and without in any way waiving such default, take possession of
the Property in accordance with applicable law and have, hold, manage, lease and operate the
same, on such terms and for such period of time as Beneficiary may deem proper, and may
882/015610-0040
732278.01 a07/31/06 -4-
collect and receive all rents and profits, with full power to make, from time to time, all
commercially reasonable alterations, renovations, repairs or replacements thereto as may seem
proper to Beneficiary, and to apply such rents and profits to the payment of (a) the cost of all
such alterations, renovations, repairs and replacements, and all costs and expenses incident to
taking and retaining possession of the Property, and the management and operation thereof, and
keeping the same properly insured; (b) all taxes, charges, claims, assessments, and any other
liens which may be prior in lien or payment of the Note, and premiums for insurance, with
interest on all such items; and (c) the indebtedness secured hereby, together with all costs and
attorney's fees, in such order or priority as to any of such items as Beneficiary in its sole
discretion may determine, any statute, law, custom or use to the contrary notwithstanding. Any
amounts received by Beneficiary or its agents in the performance of any acts prohibited by the
terms of this assignment, including, but not limited to, any amounts received in connection with
any cancellation, modification or amendment of any lease prohibited by the terms of this
assignment and any rents and profits received by Trustor after the occurrence of a default shall
be held by Trustor as trustee for Beneficiary and all such amounts shall be accounted for to
Beneficiary and shall not be commingled with other funds of the Trustor. Any person receiving
any portion of such trust funds shall receive the same in trust for Beneficiary as if such person
had actual or constructive notice that such funds were impressed with a trust in accordance
therewith.
9. Receiver. In addition to any and all other remedies of Beneficiary set forth under
this Deed of Trust or permitted at law or in equity, if a default shall have occurred and not have
been cured within any applicable cure period, Beneficiary, to the extent permitted by law and
without regard to the value, adequacy or occupancy of the security for the Note and other sums
secured hereby, shall be entitled as a matter of right if it so elects to the appointment of a receiver
to enter upon and take possession of the Property and to collect all rents and profits and apply the
same as the court may direct, and such receiver may be appointed by any court of competent
jurisdiction by ex parte application and without notice, notice of hearing being hereby expressly
waived. The expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to the power herein contained shall be secured by this Deed of
Trust.
10. Notice to Beneficiary. Notices to Beneficiary shall be sent to Beneficiary
addressed to:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92263
Attn: Executive Director
[SIGNATURE ON NEXT PAGE]
882/015610-0040
732278.01 a07/31/06 -5-
IN WITNESS WHEREOF, Trustor has executed this Rider on the date of Trustor's
acknowledgment hereinbelow, to be effective for all purposes as of the day and year first set
forth above.
TRUSTOR:
BUILDING HO
public benefit cc
By:
Its:
STATE OF CALIFORNIA )
ss
COUNTY OF �C / ✓�•S i �� )
, a California nonprofit
On beforeme,
personally appeared Aezl 1/
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%+rey executed the same in his/hefAkeir authorized capacity(ies), and that by his/he eir
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.
No Public
[SEAL] �� # 1521433
Nosy PW* - Calitomia
14. gh*we County
ern. Expires Oct 23, 2008
882/015610-0040 _
732278.01 a07/31/06 _6
Recorder
P.O. Box 751
Riverside, CA 92502-0751
(909)486-7000
http7Hriverside.asrelkrec. com
LARRY W. WARD
COUNTY OF RIVERSIDE
ASSESSOR -COUNTY CLERK -RECORDER
NOTARY CLARITY
Under the provisions of Government Code 27361.7, I certify under penalty of perjury that the
notary seal on the document to which this statement is attached reads as follows:
Name of Notary: REGENIA HENSLEY
Commission #: 1521423
Place of Execution: RIVERSIDE COUNTY, CALIFORNIA
Date Commission Expires: OCTOBER 23, 2008
Date: AUGUST 14, 2006
A. GRUNTZ, ORANGE COAST TITLE