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2000 Miraflores LP (LINC - DC&TC) - Affordable Housing AgrmtAFFORDABLE HOUSING AGREEMENT (SENIOR APARTMENTS DEVELOPMENT) BY AND BETWEEN LA QUINTA REDEVELOPMENT AGENCY F\� DC & TC, LLC 394/015610-0026 111099.05 a12/13/00 I [100] A. B. C. D. E. F. G. TABLE OF CONTENTS Page SUBJECT OF AGREEMENT.................................................................. [101] Purpose of Agreement................................................................... [102] The Redevelopment Plan .............................................................. [103] The Project Area............................................................................ [104] The SA Site.................................................................................... [105] Parties to the Agreement............................................................... 1. [106] The Agency........................................................................ 2. [107] The Developer.................................................................... 3. [108] Prohibition Against Change in Ownership, Management and Control of Developer and Prohibition Against Transfer of theSA Site................................................................................... [109] Representations by the Developer ................................................. [ 110] Representations by the Agency................................................................. 3 4 5 II. [200] FINANCING ACQUISITION OF THE SA SITE AND DEVELOPMENT OF THE SA DEVELOPMENT.........................................................6 A. [201] Sources of Financing...................................................................................6 B. [202] Evidence of Financial Capability................................................................ 9 C. [203] . Conditions Precedent to the Transfer of the SA Site...............................10 D. [204] Acquisition of the SA Site; Purchase Price..............................................11 E. [205] Escrow....................................................................................... ...........II F. [206] Conveyance of Title and Delivery of Possession.....................................12 G. [207] Condition of Title.....................................................................................12 H. [208] Payment of the Purchase Price and Recordation of Deed........................13 I. [209] Title Insurance..........................................................................................13 J. [210] Taxes and Assessments............................................................................13 K. [211 ] Conveyance Free of Possession...............................................................14 L. [212] Inspections; Condition of SA Site............................................................14 M. [213] Preliminary Work by the Developer........................................................16 N. [214] Subordination............................................................................................16 III. [300] DEVELOPMENT OF THE SA SITE..................................................................17 A. [301] Development of the SA Site.....................................................................17 1. [302] Scope of Development.................................................................17 2. [303] Plans, Drawings, and Related Documents....................................17 3. [304] Review and Approval of Plans, Drawings, and Related Documents..............................................................................................18 4. [305] Cost of Development....................................................................18 5. [306] Construction Schedule..................................................................18 6. [307] Indemnity, Bodily Injury and Property Damage Insurance .........18 7. [308] City and Other Governmental Agency Permits ............................19 8. [309] Rights of Access...........................................................................20 9. [310] Local, State and Federal Laws.....................................................20 394/015610-0026 111099.05 a12113100 '1' Page 10. [311 ] Anti-Discrimination.....................................................................20 11. [312] Taxes and Assessments................................................................20 B. [313] Prohibition Against Transfer of the SA Site, the Buildings or Structures Thereon and Assignment of Agreement ............................................ 20 C. [314] Right of the Agency to Satisfy Other Liens on the SA Site After TitlePasses..........................................................................................................21 D. [315] Certificate of Completion.........................................................................21 E. [316] No Encumbrances Except Mortgages, Deeds of Trust, Sales and Lease -Backs or Other Financing for Development............................................22 F. [317] Holder Not Obligated to Construct Improvements..................................22 G. [318] Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure........................................................................... 23 H. [319] Failure of Holder to Complete Improvements.........................................23 I. [320] Right of Agency to Cure Mortgage, Deed of Trust or Other Security Interest Default.....................................................................................24 IV. [400] USE OF THE SITE..............................................................................................24 A. [401] Affordable Rental Senior Citizen Housing..............................................24 B. [402] Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions...............................................................................24 C. [403] Uses In Accordance with Redevelopment Plan; Nondiscrimination............................................................................................... 25 D. [404] Effect of Violation of the Terms and Provisions of this Agreement........................................................................................................... 26 E. [405] Maintenance of the Site............................................................................26 V. [500] DEFAULTS AND REMEDIES...........................................................................26 A. [501 ] Defaults -- General...................................................................................26 B. [502] Legal Actions...........................................................................................27 1. [503] Institution of Legal Actions; Attorney's Fees..............................27 2. [504] Applicable Law............................................................................27 3. [505] Acceptance of Service of Process................................................27 C. [506] Rights and Remedies Are Cumulative.....................................................27 D. [507] Inaction Not a Waiver of Default.............................................................27 E. [508] Remedies and Rights of Termination.......................................................28 1. [509] Defaults........................................................................................28 2. [510] Specific Performance; Damages..................................................28 3. [511] Termination by the Developer......................................................28 4. [512] Termination by, the Agency..........................................................29 F. [513] Option to Purchase, Reenter and Repossess.............................................30 VI. [600] GENERAL PROVISIONS...................................................................................31 A. [601 ] Notices, Demands and Communications Between Parties ....................... 31 B. [602] Conflicts of Interest..................................................................................32 C. [603] Enforced Delay; Extension of Times of Performance .............................32 394/015610-0026 111099.05 a12/13/00 -11- Page D. [604] Non -Liability of Officials and Employees of the Agency and the Developer............................................................................................................ 32 E. [605] Interpretation; Entire Agreement, Waivers; Counterparts; Attachments........................................................................................................33 F. [605] No Brokers....................................:..........................................................33 G. [606] Amendments to this Agreement...............................................................33 ATTACHMENTS 1 Site Map 2 Legal Description 3 Scope of Development 4 Schedule of Performance 5 Grant Deed 6 SA Promissory Note 7 SA Deed of Trust 8 Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions For Property 9 Certificate of Completion 10 Project Budget 11 Disbursement Procedures 12 Developer Public Improvement Obligations (See Attachment No. 3, § V) 394/015610-0026 111099.05 a12/13/00 '111- AFFORDABLE HOUSING AGREEMENT [SENIOR APARTMENTS PROJECT] This Affordable Housing Agreement [Senior Apartments Project] ("Agreement") is entered into as of the day of , 2000 ("Effective Date") by and between LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency") and DC & TC, LLC, a California limited liability company (the "Developer"). The Agency and the Developer (collectively referred to as the "Parties") hereby agree as follows: I. [100] SUBJECT OF AGREEMENT A. [ 101 ] Purpose of Agreement The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the La Quinta Redevelopment Project (the "Project") by providing for the improvement of certain property situated within the Project Area of the Project (the "Project Area"), by assisting in the financing of the acquisition of the "SA Site" (as hereinafter defined) and the development thereon of a 118 unit apartment complex for senior citizens, with all of the units "Affordable Units" leased to and occupied by senior citizens who are "Eligible Tenants" (as defined herein) and related improvements, including the long-term maintenance of the apartment complex and the Affordable Units as affordable rental housing for such Eligible Tenants as more fully described in this Agreement (generally, the "SA Development"). 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 apartment units as developed for households of limited incomes all as provided in this Agreement are in the vital and best interests of the City of La Quinta (the "City") and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements under which the Project has been undertaken. B. [102] The Redevelopment Plan This Agreement is subject to the provisions of the Redevelopment Plan for Project Area No. 2 (the "Redevelopment Plan") which was approved and adopted by Ordinance No. 43 of the City Council of the City of La Quinta on the 29th day of November, 1983. Said ordinance and Redevelopment Plan are fully incorporated herein by reference. Any amendment hereafter to the Redevelopment Plan (as so approved and adopted) which changes the uses or development permitted on the Site as proposed in this Agreement, or otherwise changes the restrictions or controls that apply to the Site, or otherwise affects the Developer's obligations or rights with respect to the Site, shall not apply to the Site without the written consent of the Developer. Amendments to the Redevelopment Plan applying to other property in Project Area No. 2 shall not require the consent of the Developer. 394/015610-0026 111099.05 a12/13/00 C. [103] The Proiect Area The La Quinta Redevelopment Project Area No. 2 ("Project Area") is located in the City and is generally bounded by Washington Street, the northern corporate boundary, Jefferson Street and Avenue 50. The exact boundaries are as set out in the Redevelopment Plan. D. [104] The SA Site The "SA Site" is currently owned by the Agency and consists of certain of 13 acres of real property generally at the corner of 48th Avenue and Jefferson Street located within the Project Area in the City of La Quinta, County of Riverside. The SA Site is depicted in the Site Map on Attachment No. 1 attached hereto and incorporated herein by this reference. The legal description of the SA Site is provided on Attachment No. 2 attached hereto and incorporated hereby by this reference. In accordance with the approved Specific Plan that covers the SA Site, a maximum of 118 senior citizen rental units may developed on the SA Site. This Agreement is consistent with and in compliance with that Specific Plan. Any material change, as reasonably determined by the Agency, in the Scope of Development (Attachment No. 3) or in the approved Specific Plan which affects the size, quality, or type of development proposed for the SA Site shall require the written approval of the Agency, which approval may be contingent upon the review and renegotiation of all the economic and financial terms of this Agreement and such other matters as the Agency shall deem appropriate. E. [105] Parties to the Agreement [ 106] 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 (Health & Safety Code § 33000 et seq.). 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. [107] The Developer The Developer is DC & TC, LLC, a California limited liability company. The principal office and mailing address of the Developer for purposes of this Agreement is 71-084 Tamarisk Lane, Rancho Mirage, CA 92270. 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. 394/015610-0026 2 111099.05 a12/13/00 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. 3. [108] Prohibition Against Change in Ownership, Management and Control of Developer and Prohibition Against Transfer of the SA 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 SA Site without the prior written approval of the Agency. A voluntary or involuntary sale or transfer by Developer of any of its interest in the SA Site prior to the issuance of a Certificate of Completion for the SA Improvements (as defined in this Agreement, including but not limited to the Scope of Development) with respect to the SA Site shall be deemed to constitute an assignment or transfer for the purposes of this Section 108, 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 be 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 SA Improvements on the SA Site, 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 SA Site or the SA Improvements thereon, without the prior written approval of the Agency, which approval shall not be unreasonably withheld. Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an assignment of this Agreement or transfer of the SA Site, or any interest therein shall not be required in connection with: (a) the conveyance or dedication of any portion of the SA 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; or (b) any assignment of this Agreement or transfer of the SA Site, or the SA Improvements located thereon to a limited liability company in which Developer is a member, or has a greater than fifty percent (50%) ownership and management interest; or (c) any assignment of this Agreement, or transfer of the SA Site and SA Improvements located thereon to a limited partnership in which Developer is a general partner with a greater than fifty percent (50%) ownership and management interest. Notwithstanding the foregoing, Developer agrees that it shall transfer and assign this Agreement and the SA Site and SA Improvements located thereon to a limited partnership in which Developer is a general partner or special limited partner in accordance with the requirements of the Tax Credit Allocation Committee. The general partner or co -general partner of the limited partnership shall be a nonprofit entity experienced in the ownership and management of affordable senior apartments. Developer shall request in writing the Agency Executive Director's approval of the nonprofit entity selected by Developer to serve as a general partner of the Tax Credit limited partnership, which approval shall be in the reasonable discretion of the Agency Executive 394/015610-0026 3 111099.05 a12/13/00 Director. LINC Housing, if selected by Developer, shall be approved by the Agency Executive Director as a suitable nonprofit general partner. Nothing herein shall prohibit Developer from withdrawing as general partner (or limited partner) of such Tax Credit limited partnership at completion of the Project provided that the nonprofit entity selection by Developer and approved by the Executive Director remains as a general partner. In addition, prior to issuance of the Certificate of Completion for the SA Improvements on the SA Site, Developer shall not, except with the prior written consent of the Agency Executive Director, which consent shall not be unreasonably withheld, effect a change of ownership of Developer. As used herein, the term "change of ownership of Developer" means a transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) (in the aggregate) of the present ownership and/or control of any person or entity constituting Developer, taking all transfers into account on a cumulative basis. In the event any entity constituting Developer, its successor or the constituent partners or members of Developer or any successor of Developer, is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation, or of beneficial interests of such trust; in the event that any entity constituting Developer, its successor or the constituent partners of Developer or any successor of Developer is a limited or general partnership, such transfer shall refer to the transfer of more than twenty-five percent (25%) of such limited or general partnership interest; provided, however, that the interest of the Tax Credit Limited Partner may be transferred without consent of the Agency. In the event that any entity constituting Developer, its successor or the constituent members of Developer or any successor of Developer is a limited liability company, such transfer shall refer to the transfer of more than twenty-five percent (25%) of such membership interest; in the event that any entity constituting Developer, its successor or the constituent partners of Developer or any successor of Developer is a joint venture, such transfer shall refer to the transfer of more than twenty-five percent (25%) of the ownership and/or control of any such joint venture partner, taking all transfers into account on a cumulative basis. Notwithstanding anything in this Section 108 to the contrary, no transfer or assignment by Developer or change of ownership of Developer, or any successor, shall be effective unless and until the transferor and transferee execute and deliver to Agency an assignment and assumption agreement in a form and with content reasonably acceptable to Agency's legal counsel. This Section 108 shall not be applicable to the rental of Units in accordance with this Agreement and no assignment and assumption agreement shall be required for the rental of units in accordance with this Agreement. . F. [ 109) Representations by the Developer The Developer represents and warrants to the Agency as follows: I . 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 394/015610-0026 4 111099.05 a12/13/00 in order to carry out, give effect to, and consummate the transactions contemplated by this Agreement. This Agreement is enforceable against the Developer in accordance with its terms. 2. The Developer does not have any contingent obligations or contractual agreements which will materially 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 to 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 will materially 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 have a material adverse effect on 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 SA Site and shall continue until issuance of the Certificate of Completion for the SA Development. The Developer shall advise the Agency in writing if there is any change material pertaining to any matters set forth or referenced in the foregoing items 1 to 5, inclusive. G. [I 10] Representations by the Agency The Agency represents and warrants to Developer as follows: 1. Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment Law (California Health and Safety Code Section 33000), which has been authorized to transact business pursuant to action of the City of La Quinta. Agency has full right, power and lawful authority to transfer the SA Site as provided herein and the execution, performance, and delivery of this Agreement by Agency has been fully authorized by all requisite actions on the part of Agency. The parties who have executed this Agreement on behalf of Agency are authorized to bind Agency by their signatures hereto. 2. Agency does not have any contingent obligations or contractual agreements which will materially adversely affect the ability of Agency to carry out its obligations hereunder. 3. There are no pending or, so far as is known to Agency, threatened, legal proceedings to which Agency is or may be made a party or to which it or any of its property is or 394/015610-0026 5 111099.05 a12/13/00 may become subject, which will materially adversely affect the ability of Agency to carry out its obligations hereunder. 4. There is no action or proceeding pending or, to Agency's best knowledge, threatened, looking toward the dissolution or liquidation of Agency and there is no action or proceeding pending or, to Agency's best knowledge, threatened by or against Agency which could affect the validity and enforceability of the terms of this Agreement, or adversely affect the ability of Agency to carry out its obligations hereunder. 5. To the best of Agency's knowledge, the SA Site is not currently in violation of any law, ordinance, rule, regulation or requirement applicable to its use and operation. 6. Agency is not the subject of a bankruptcy proceeding. 7. To the best of Agency's actual knowledge, without duty of investigation, no Hazardous Materials (as defined in Section 212.5 below) are now or have been released, used, or stored on or within any portion of the SA Site in violation of applicable laws or regulations governing the release, use, or storage of Hazardous Materials, and there has not been any federal, state. or local enforcement, clean-up, removal, remedial, or other governmental or regulatory actions instituted or completed affecting the SA Site. II. [2001 FINANCING ACQUISITION OF THE SA SITE AND DEVELOPMENT OF THE SA DEVELOPMENT A. [§201] Sources of Financing For the purpose of acquiring the SA Site and the development of the SA Development, Developer intends to utilize financing from the sources set forth below which shall contribute funds toward development of the SA Development in accordance with the Project Budget (Attachment No. 10). 1. Agency Assistance The Agency, subject to Section 201.3 below, agrees to provide to Developer, pursuant to this Agreement, certain financial assistance in an amount not to exceed SIX MILLION DOLLARS ($6,000,000.00), which shall consist of a the following components: (1) a write- down of the value of the SA Site incorporated into the purchase price for the SA Site ("Acquisition Assistance"), (2) funding of certain public improvements for the project as set forth in Attachment No. 12 ("Public Improvements Assistance"), (3) payment of a portion of public entity fees ("Fees Assistance"), and other assistance required to facilitate the development of the Project (all of the foregoing, collectively, the "Agency Assistance"). The Agency Assistance shall be disbursed in accordance with the disbursement procedures set forth in Attachment No. 11. The Agency Assistance may increase in accordance with the provisions of Section 201.3 below. Agency agrees that included within and part of the Agency Assistance, Developer shall be permitted to be reimbursed, upon submittal to the Agency Executive Director of sufficient 394/015610-0026 6 111099.05 a12/13/00 verifiable cost documentation, up to Three Hundred Ten Thousand Four Hundred Eleven Dollars ($310,411.00) in architectural, engineering, and other pre -development costs incurred through the date of submittal of the Tax Credit application. 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 SA Site shall be subject to all of the affordability restrictions set forth in this Agreement, and the Regulatory Agreement and Declaration of Covenants, Conditions and Restrictions (Attachment No. 8). As a condition to provision of the Agency Assistance, Developer shall execute the SA Note in the form of Attachment No. 6 in the amount of the total Agency Assistance Of Six Million Dollars ($6,000,000.00), and a deed if trust in the form of Attachment No. 7 ("SA Deed of Trust") which shall secure repayment of the SA Note and shall secure Developer's obligations to utilize the Agency Assistance and develop the SA Development on the SA Site in accordance with this Agreement and the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions. The SA Note, SA Deed of Trust, and the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions shall be recorded at close of escrow for Agency's conveyance of the SA Site to Developer as further described in this Agreement. 2. Tax Credits Developer proposes to qualify for and obtain 9% Tax Credits in the First Allocation Round of 2001, pursuant to the low-income housing tax credit program authorized pursuant to Internal Revenue Code Section 42, California Health and Safety Code Sections 50199.6- 50199.19, Revenue and Taxation Code Sections 17057.5, 17058, 23610.4, and 23610.5, and applicable federal and State regulations such as 4 California Code of Regulations Sections 10300-10340 (collectively, the "Low -Income Housing Tax Credit Program"). In the event Developer obtains Tax Credits, Agency shall not have any responsibilities or obligations with respect thereto. Developer shall also comply with the requirements set forth below. a. Submission of Documents to Agency. In order to assist Agency in performing its obligations and its rights under this Agreement (e.g., reviewing Developer's Evidence of Financial Capability, insuring the continued affordability and maintenance of the Project units, and obtaining payments due under the Agency Note), Developer shall promptly submit to the Executive Director all of the following documents at such time as the same are submitted by Developer to the Tax Credit Allocation Committee or other applicable body or when such documents are received by Developer, as applicable: (1) Complete copies of Developer's applications to the Tax Credit Allocation Committee for the preliminary reservation, final reservation, carryover allocation (if applicable), and placed -in-service credit award, and any amendments or modifications thereto (4 California Code of Regulations 10325(b)-(e) and 10345). (2) Complete copies of any correspondence or transmittals by the Tax Credit Allocation Committee to Developer notifying Developer regarding the action(s) taken with respect to any of the applications referred to in the preceding clause. 394/015610-0026 7 111099.05 a12/13/00 (3) A complete copy of the regulatory agreement between the Tax Credit Allocation Committee and Participant (4 California Code of Regulations.10340(c)). (4) Complete copies of all progress reports submitted by Developer to the Tax Credit Allocation Committee prior to the issuance of tax credit allocations (4 California Code of Regulations 10340(d)). (5) Complete copies of all correspondence or transmittals from the Tax Credit Allocation Committee or other jurisdiction (such as the Internal Revenue Service) containing any notification regarding the Project's noncompliance with applicable provisions of the Low -Income Housing Tax Credit Program. b. Agency Cooperation In Tax Credit Process. Agency shall cooperate with Developer to optimize the probability of Participant's receipt of an allocation of Tax Credits from the Tax Credit Allocation Committee; provided, however, Agency does not represent, warranty, or guaranty that Developer shall obtain a reservation of Tax Credits. Specifically, Agency agrees as follows: (1) Agency shall provide Participant copies of all correspondence between Agency and the Tax Credit Allocation Committee. (2) Within the time set forth in the Schedule of Performance, and if requested by Participant, Agency shall assist Developer in obtaining a letter from the City Building Department, in a form meeting Tax Credit Allocation Committee requirements, that Developer is entitled to building permits for the Project upon payment of all required fees. (3) Agency shall cooperate with Developer in reasonably considering revisions to this Agreement to conform the Agreement to the requirements of the Low Income Housing Tax Credit Program and the Tax Credit investors; provided, however, that nothing herein shall be construed as a warranty or guaranty that Agency shall approve such modifications to this Agreement. The Agency Executive Director shall have the authority, on behalf of the Agency to modify this Agreement as necessary in his/her respective sole and absolute judgment to conform the Agreement to the requirements of the Low Income Housing Tax Credit Program and the Tax Credit investors so long as such modifications do not materially affect in a substantial manner the Agency's position with respect to Developer's repayment of the Agency Note; provided, however, that nothing herein shall be construed as a warranty or guaranty that the Executive Director shall so agree to modify this Agreement. 394/015610-0026 p 111099.05 a12/13/00 8 3. Agency Termination For Failure of Developer to Obtain Tax Credits; Alternative Funding Sources In the event that Developer is not successful in obtaining the 9% Tax Credits in either the First or Second Round of 2001 sufficient to yield the tax credit equity set forth in the Project Budget (Attachment No. 10), Agency shall have the right, but not the obligation, in its sole and absolute discretion to (i) supply additional Agency financial assistance to the Project in an amount mutually acceptable to Agency and Developer, or (ii) to terminate this Agreement. If Agency terminates the Agreement, then upon such termination, Developer shall promptly transfer the SA Site to Agency by grant deed upon the concurrent waiver and discharge by Agency of the Agency Note and reconveyance of the Agency Deed of Trust, and thereafter neither party hereto shall have any liability to the other arising out of this Agreement. B. [202] Evidence of Financial Capability Within the time required under the Tax Credit Allocation Committee's "Readiness to Proceed" criteria set forth in Section 10325(c)(9) of the California Tax Credit Allocation Committee Regulations, as amended for 2001, Developer shall submit to Agency's Executive Director evidence reasonably satisfactory to the Executive Director that Developer has obtained the following financial commitments and other evidence pertaining to the development of the SA Development consistent with the Project Budget ("Evidence of Financial Capability"): 1. Funding Commitments. A copy of the commitment or commitments obtained by Participant for the Tax Credits to assist in financing the acquisition of the Site and the construction of the Project. All copies of these commitments submitted by Developer to Agency shall be certified by Developer to be true and correct copies thereof. Each commitment for financing shall be in such form and content acceptable to the Executive Director as reasonably evidences a firm and enforceable commitment, with only those conditions which are standard or typical for each type of funding source involved for similar projects. 2. Coverage of Financing Gaps. Documentation reasonably satisfactory to the Agency Executive Director sufficient to demonstrate that Developer has a reasonable expectation of receiving other financing to cover any financing gaps, including any construction loan and permanent loan to be obtained consistent with the Project Budget. 3. Construction Contract. A copy of the bonded lump sum construction contract between Developer and its general contractor for all of the improvements required to be constructed by Developer for the SA Development, certified by Developer to be a true and correct copy thereof; provided, however, that the Agency Executive Director may accept another equally acceptable alternative form of security in his or her reasonable discretion, rather than requiring that the construction contract be bonded. The completion surety bond shall (i) be in a penal sum not less than one hundred percent (100%) of the amount of the cost of constructing the Project, (ii) guarantee completion of construction, (iii) guarantee the payment of wages for services engaged and bills contracted for materials, supplies, and equipment used in the performance of the work, and (iv) protect Participant and Agency from any liability, losses, or damages arising therefrom. Such bond shall name the Agency as a co -obligee with all rights of enforcement. Should the Agency exercise its rights under section 513 of this Agreement, it 394/015610-0026 9 111099.05 a12/13/00 shall have the right to use the completion bond to complete construction with a third party general contractor unrelated to Developer. The choice of the third party general contractor shall be at Agency's reasonable discretion. The Executive Director shall review and approve or disapprove the Evidence of Financial Capability within thirty (30) days after receipt of a complete submittal. Failure of the Executive Director to approve or disapprove the complete submittal within thirty (30) days shall be deemed a disapproval. If the Executive Director shall affirmatively disapprove such complete submittal of the Evidence of Financial Capability, he or she shall do so by written notice to Developer stating the reasons for such disapproval. In such event, Developer shall promptly resubmit its Evidence of Financial Capability not less than thirty (30) days after receipt of such disapproval and the Executive Director shall reconsider such complete resubmittal within the same number of days allowed for the initial complete submittal, and the deadlines in the Schedule of Performance shall be extended accordingly. If the Evidence of Financial Capability after review of the second complete submittal is not sufficient, the Executive Director shall notify Developer in writing stating the reasons for disapproval and permitting Developer one final opportunity, not later than thirty (30) days thereafter, to submit a revised complete Evidence of Financial Capability. If the final complete submittal is still unsatisfactory, the Executive Director shall so notify the Developer in writing stating the reasons therefor and Agency shall then have the right to terminate this Agreement. C. [203] Conditions Precedent to the Transfer of the SA Site Prior to and as conditions to conveyance of the SA Site by Agency to Developer, the Developer shall complete each of the following by the respective times established therefor in the Schedules of Performance (Attachment No. 4) ("Conditions Precedent to Conveyance"): the Developer shall not be in default of this Agreement; 2. the Developer provides to the Executive Director insurance certificates conforming to Section 307 of this Agreement; 3. the Developer shall have executed and deposited with escrow for delivery to the Agency the SA Promissory Note (Attachment No. 6) and the SA Deed of Trust (Attachment No. 7); 4. - the Developer shall have executed and deposited with escrow for recordation and delivery to the Agency the Regulatory Agreement and Declaration of Conditions, Covenants and Restrictions (Attachment No. 8); and 5. the Developer has approved the environmental condition of the SA Site and agrees to acquire the SA Site in its present condition. The foregoing items numbered 1 to 5, inclusive, together constitute the "Conditions Precedent" to the Agency's close of escrow on the conveyance of the SA Site to the Developer and the funding of the acquisition portion of the Agency Assistance. 394/015610-0026 10 111099.05 all/13/00 D. [204] Acquisition of the SA Site; Purchase Price The Developer shall acquire a fee simple marketable title to the SA Site pursuant to a Grant Deed in the form of Attachment No. 5 attached hereto and incorporated hereby by this reference. Developer's purchase price for the Site is SIX HUNDRED SIXTY-THREE THOUSAND ONE HUNDRED ONE DOLLARS ($663,101.00), which consists of One Dollar ($1.00) to be paid at closing in cash plus the Acquisition Assistance. E. [205] Escrow Agency and Developer agree to open an escrow (the "Acquisition Escrow") with Stewart Title or with another mutually agreeable escrow company (the "Escrow Agent"), by the time established therefor in the Schedule of Performance (Attachment No. 4). This Agreement constitutes Agency's and Developer's escrow instructions for the Agency's sale and Developer's purchase of the SA Site 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 206, in writing, delivered to the Agency and the Developer, shall carry out its duties as Escrow Agent hereunder. Developer, as part of the Agency Assistance received for the Project, shall pay all of the fees, charges and costs associated with the Acquisition Escrow promptly after the Escrow Agent has notified the Agency and Developer of the total amount of such fees, charges and costs, but not earlier than five (5) days prior to the scheduled date for closing the Acquisition Escrow, including but not limited to the Escrow fee, costs of drawing the Grant Deed if any; recording fees, if any, notary fees; title insurance premium(s) [except that the portion Developer is to pay set forth in Section 211 is not included in the Agency Assistance]; and transfer taxes and any state, county, or city documentary stamps. Agency shall deposit such fees and costs with the Escrow Agent and shall debit such amounts from the total Agency Financial Assistance. The Developer shall deposit with the Escrow Agent the executed SA Note (Attachment No. 6) and the SA Deed of Trust (Attachment No. 7). The Escrow Officer shall notify the Agency when all outstanding documents including the Grant Deed (Attachment No. 5) to the Developer, the SA Deed of Trust (Attachment No. 7) and the Regulatory Agreement and Declaration of Conditions, Covenants and Restrictions (Attachment No. 8) have been executed and submitted to Escrow by the applicable party. The Escrow Agent shall record the following documents in the following order of recordation: (1) Grant Deed (Attachment No. 5), (2) SA Deed of Trust (Attachment No. 7), and (3) Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions (Attachment No. 8). All funds received in the Acquisition Escrow shall be deposited by the Escrow Agent, with other escrow funds of the Escrow Agent in an interest -earning general escrow 394/015610-0026 11 111099.05 a12/13/00 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. Any amendment to these 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 Sections 205-210 of this Agreement. F. [206] Conveyance of Title and Delivery of Possession Provided that the Developer is not in default under this Agreement and all conditions precedent to such conveyance have occurred, and subject to any mutually agreed upon extensions of time, conveyance to the Developer of title to the SA Site shall be completed on or prior to the date specified in the Schedule of Performance (Attachment No. 4). The Agency and the Developer agree to perform all acts necessary to conveyance of title in sufficient time for title to be conveyed in accordance with the foregoing provisions. Possession shall be delivered to the Developer concurrently with the conveyance of title, except that limited access may be permitted before conveyance of title as permitted in Section 213 of this Agreement. The Developer shall accept title and possession on the said date. G. [207] Condition of Title The Agency shall convey to the Developer fee simple title to the SA Site free and clear of all recorded liens, encumbrances, encroachments, assessments, leases and taxes except as approved by Developer pursuant to this Section. Within thirty (30) days of execution of this Agreement, Agency shall cause Stewart Title Insurance Company, or another title company reasonably acceptable to Agency and Developer (the "Title Company"), to deliver to Developer a standard preliminary title report (the "Title Report") with respect to the SA Site, together with legible copies of the documents underlying the exceptions ("Exceptions") set forth in the Title Report. Developer shall have the right to reasonably approve or disapprove the Exceptions; provided, however, that the Developer hereby approves the Redevelopment Plan and the lien of current non -delinquent real property taxes and assessments, if any, as Exceptions. Developer shall have ten (10) days from the date of receipt of the Title Report and the Exceptions pursuant to this Section 207 to give written notice to Agency of its approval or disapproval of any of such Exceptions. Developer's failure to give written disapproval of the Title Report within such time limit shall be deemed approval of the Title Report by Developer. If Developer notifies Agency of its disapproval of any Exceptions in the Title Report, Agency shall have the right, but not the obligation, to remove any disapproved Exceptions within ten (10) days after receiving written notice of Developer's disapproval or provide assurances satisfactory to Developer that such Exception(s) will be removed on or before conveyance of the SA Site. If Agency cannot or in its sole discretion does not elect to remove any of the disapproved Exceptions within that period, Developer shall have ten (10) business days after the expiration of 394/015610-0026 1 2 111099.05 a12/13/00 such ten (10) days to either give Agency written notice that it elects to proceed with the conveyance of the SA Site subject to the disapproved Exceptions or to give Agency written notice that it elects to terminate this Agreement. Developer shall have the right to approve or disapprove any Exceptions reported by the Title Company after Developer has approved the condition of title for the SA Site (which are not created by Developer). Agency shall not create any new exceptions to title .following the date of this Agreement without prior approval of Developer and shall remove such new exceptions created by Agency and not approved by Developer not later than the Closing Date. H. [208] Payment of the Purchase Price and Recordation of Deed The Developer shall deposit the Purchase Price including the executed SA Note and the SA Deed of Trust for the SA Site and other sums required hereunder, if any, with the Escrow Agent prior to the date for conveyance of the SA Site, provided that the Escrow Agent shall have notified the Developer in writing the Grant Deed, properly executed and acknowledged by the Agency, has been delivered to the Escrow Agent and that title is in condition to be conveyed in conformity with the provisions of Section 207 of this Agreement. Upon the close of escrow, the Escrow Agent shall record the Grant Deed for recordation among the land records in the Office of the County Recorder of Riverside County and shall deliver the purchase price and any other required sums to the Agency. I. [209] Title Insurance Concurrently with recordation of the grant deed, Escrow Agent shall instruct Stewart Title Insurance Company or some other title insurance company satisfactory to the Agency and the Developer having equal or greater financial responsibility ("Title Company"), to provide and deliver to the Developer an ALTA standard form policy of title insurance that does not require a survey issued by the Title Company insuring that the title is vested in the Developer, or its assignee, as applicable, in the condition required by Section 207 of this Agreement. The Title Company shall provide the Agency with a copy of the title insurance policy and the title insurance policy shall be in the amount of SIX HUNDRED SIXTY THREE THOUSAND ONE HUNDRED ONE DOLLARS ($663,101.00). Developer, payable from the Agency Assistance, shall pay the title insurance premium attributable to the ALTA standard form policy of title insurance. The Title Company shall, if requested by the Developer, increase the amount of the title insurance policy or provide the Developer with an extended policy, coverages, or endorsements. The Developer, outside of and not as a part of the Agency Assistance, shall pay the portion of the premium associated with such extended or additional coverages or endorsements. J. [210] Taxes and Assessments Ad valorem taxes and assessments, if any, on the SA Site, and taxes upon this Agreement or any rights hereunder, levied, assessed or imposed for any period commencing prior to conveyance of title shall be borne by the Agency. All ad valorem taxes and assessments levied or imposed for any period commencing after closing of escrow for the SA Site shall be paid by the Developer. 394/015610-0026 1 3 111099.05 a12/13/00 K. [211 ] Conveyance Free of Possession The SA Site shall be conveyed free of any possession or right of possession by any person except that of the Developer and the easements and other encumbrances of record (subject to Developer's right to review the condition of title pursuant to Section 207). L. [212] Inspections; Condition of SA Site 1. Inspections. The Developer shall conduct the Developer's own investigation of the SA Site, including but not limited to the existing improvements, if any, its physical condition, the soils and toxic conditions of the SA Site and all other matters which in the Developer's judgment affect or influence the Developer's proposed use of the SA Site and the Developer's willingness to develop the SA Site pursuant to this Agreement. The Developer's investigation may include, without limitation, the preparation by a duly licensed soils engineer of soils report for the SA Site. Prior to the acquisition of the SA Site, the Developer shall provide written notice to the Agency of the Developer's determinations concerning the suitability of the physical condition of the SA Site. If, in the Developer's reasonable judgment, the physical condition of the SA Site is unsuitable for the use or uses to which the SA Site will be,put to the extent that it is not economically feasible for the Developer to develop the SA Site pursuant to this Agreement, then the Developer shall have the option either to (a) take any action necessary to place the applicable Site in a condition suitable for development, at no cost to the Agency; or (b) terminate this Agreement pursuant to the provisions of Section 511 hereof. If the Developer has not notified the Agency of its determinations concerning the suitability of the physical condition of the SA Site by close of escrow, the Developer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section. 2. "As Is". The Agency has provided the Developer with all information of which it has actual knowledge concerning the physical condition of the SA Site, including, without limitation, information about any Hazardous Materials, as defined below. The Developer acknowledges and agrees that any portion of the SA Site, including but not limited to the existing improvements that it acquires from the Agency pursuant to this Agreement shall be purchased "AS IS" "WHERE IS" "WITH ALL FAULTS," in its current physical condition, with no warranties of any kind or nature, express or implied, except those warranties set forth in Section 110.7 above, as to the physical condition thereof, the presence or absence of any latent or patent condition thereon or therein, including, without limitation, any Hazardous Materials thereon or therein, and any other matters affecting the SA Site. 3. Indemnity. The Developer agrees, from and after the date of recording of the deed conveying title to the SA Site from the Agency to the Developer or its assignee under this Agreement, to defend, indemnify, protect and hold harmless the Agency and its officers, beneficiaries, employees, agents, attorneys, representatives, legal successors and assigns ("Indemnities") from, regarding and against any and all liabilities, obligations, orders, decrees, judgments, liens, demands, actions, Environmental Response Actions (as defined in subsection 5 below), claims, losses, damages, fines, penalties, expenses, Environmental Response Costs (as defined in subsection 5 below) or costs of any kind or nature whatsoever, together with fees (including, without limitation, reasonable attorneys' fees and experts' and consultants' fees), occurring during and caused by Developer's use and occupancy of the SA Site, and resulting 394/015610-0026 1 4 111099.05 a12/13/00 from or in connection with the actual or claimed generation, storage, handling, transportation, use, presence, placement, migration and/or release of Hazardous Materials (as defined in subsection 5 below), at, on, in, beneath or from the SA Site, unless caused by the negligence or willful misconduct of Indemnities. The Developer's defense, indemnification, protection and hold harmless obligations herein shall include, without limitation, the duty to respond to any governmental inquiry, investigation, claim or demand regarding the Hazardous Materials, at the Developer's sole cost. Notwithstanding the foregoing, the Agency agrees to indemnify, defend, and hold Developer harmless for, from, and against any and all claims, demands, liabilities, costs, expenses, Environmental Response Actions, Environmental Response Costs, damages, cause or causes or action of any nature whatsoever arising from any misrepresentation or breach of the warranty set forth in Section 110.7 above , or otherwise resulting from or in connection with the generation, storage, handling, transportation, use, and/or release of Hazardous materials at, on, in , beneath, or from the SA Site by the Agency or during the Agency's ownership or possession of the SA Site. 4. Release and Waiver. Subject to the exceptions set forth in Section 212.3 above, the Developer hereby releases and waives all rights, causes of action and claims the Developer has or may have in the future against the Indemnities arising out of or in connection with any Hazardous Materials (as defined in subsection 5 below), at, on, in, beneath or from the SA Site. In furtherance of the intentions set forth herein, the Developer acknowledges that it is familiar with Section 1542 of the Civil Code of the State of California which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected this settlement with the debtor." The Developer hereby waives and relinquishes any right or benefit which it has or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or nonstatutory law of any other applicable jurisdiction to the full extent that it may lawfully waive all such rights and benefits pertaining to the subject matter of this Section 212. 5. Definitions. a. As used in this Agreement, the term `Environmental Response Actions" means any and all activities, data compilations, preparation of studies or reports, interaction with environmental regulatory agencies, obligations and undertakings associated with environmental investigations, removal activities, remediation activities or responses to inquiries and notice letters, as may be sought, initiated or required in connection with any local, state or federal governmental or private party claims, including any claims by the Developer. b. As used in this Agreement, the term `Environmental Response Costs" means any and all costs associated with Environmental Response Actions including, without limitation, any and all fines, penalties and damages. C. As used in this Agreement, the term "Hazardous Materials" means any substance, material or waste which is (1) defined as a "hazardous waste," "hazardous 394/015610-0026 15 111099.05 a12/13/00 material," "hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any provision of California law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321)or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (7) defined as a "hazardous substance" pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903) or its implementing regulations; (8) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property. 6. Materiality. The Developer acknowledges and agrees that the defense, indemnification, protection and hold harmless obligations of the Developer for the benefit of the Agency set forth in this Agreement are a material element of the consideration to the Agency for the performance of its obligations under this Agreement, and that the Agency would not have entered this Agreement unless the Developer's obligations were as provided for herein. M. [213] Preliminary Work by the Developer Prior to the conveyance of title from the Agency, representatives of the Developer shall have the right of access to the SA Site at all reasonable times for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement. The Developer shall indemnify, defend, and hold harmless the Agency and its officers, officials, employees, agents, and representatives, for any injury or damages arising out of any activity pursuant to this section. The Developer shall have access to all data and information on the SA Site available to the Agency, but without warranty or representation by the Agency as to the completeness, correctness or validity of such data and information. Any preliminary work undertaken on the SA Site by the Developer prior to conveyance of title thereto shall be done only after written consent of the Agency and at the sole expense of the Developer. The Developer shall save and protect the Agency against any claims resulting from such preliminary work, access or use of the SA Site by Developer, its agents or contractors. Copies of data, surveys and tests obtained or made by the Developer on the SA Site shall be filed with the Agency. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. N. [214] Subordination Pursuant to Health and Safety Code Section 33334.14, in approving this Agreement Agency hereby finds and determines that the lien of the Agency Loan and the covenants and restrictions set forth in the Agency Regulatory Agreement may be subordinated to first lien financing and to such security instruments and regulatory agreements associated with the Tax Credits and any Developer construction lender or permanent lender for the Project, and in connection therewith Agency finds and determines that an economically feasible alternative method of financing on substantially comparable terms and conditions, but without subordination, is not reasonably available. Notwithstanding the foregoing, no subordination 394/015610-0026 111099.05 a12/13/00 16 shall be effective unless and until Agency and such lender enters into a subordination agreement with terms approved by the Agency Executive Director and Agency legal counsel which terms are reasonably designed to protect Agency's investment in the event of default by providing for rights of notice and opportunities to cure and other rights protective of Agency's investment. III. 13001 DEVELOPMENT OF THE SA SITE A. [301] Development of the SA Site [302] Scope of Development The Site shall be developed as and operated as a 118 unit apartment complex for senior citizens in accordance with the provisions of this Agreement including without limitation the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions The development of the SA Site shall include all of the onsite private improvements necessary for the development in accordance with approved plans and permits, and the additional private improvements and the public improvements identified on Attachment No. 3. The improvements to be constructed on the SA Site pursuant to this Agreement, whether private improvements or public improvements, are referred to as the "SA Improvements". Upon close of the Escrow, the Developer shall commence and complete construction of the SA Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 4). 2. [303] Plans, Drawings, and Related Documents By the time set forth therefor in the Schedule of Performance (Attachment No. 4), the Developer shall prepare and submit to the City for its approval all plans, drawings, and documents for the SA Development in conformance with the approved Specific Plan for Village on the Green and all other requirements of the City and which contain the overall plan for development of the SA 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 SA Site shall be developed as established in this Agreement and such other documents referenced in this Agreement or otherwise applicable with the consent of the Agency, except as changes may be mutually agreed upon between the Developer and the Agency; provided that any changes shall be consistent with the material terms of this Agreement. The landscaping and finish grading plans, if any finish grading plans are required by the City, 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 consideration. 394/015610-0026 1 7 111099.05 a12/13/00 3. [304] Review and Approval of Plans, Drawings, and Related Documents The Agency and the City shall have the right to review and approve all plans and drawings which may be required by the City with respect to any permits and entitlements which are required to be obtained to develop the SA Improvements, including any changes therein. During each stage of the processing of plans for the SA Improvements, the Agency and the City shall have the right to require additional information and shall advise the Developer if any submittal of plans or drawings is not complete or not in accordance with City/Agency procedures. If the Agency or the City determines that such a submittal is not complete or not in accordance with procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance (Attachment No. 4); provided, however, Agency or City, as applicable, shall provide Developer with a detailed written report of any such deficiency or noncompliance with procedures and Developer shall revise and resubmit such plans in accordance with the Schedule of Performance and such written report. If the Developer desires to make any substantial changes in the construction plans for the SA Improvements after their approval by the Agency and the City, the Developer shall submit the proposed changes 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 304 and the Scope of Development (Attachment No. 3), 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. [305] Cost of Development With the exception of the Agency Assistance, all costs for planning, designing, and constructing the SA 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 public improvements required to be constructed by Developer pursuant to this Agreement. The Developer shall be responsible for all fees associated with the development of the SA Site but shall be entitled to the Fees Assistance from the Agency as set forth in this Agreement which Fees Assistance is part of the Agency Assistance. The parties acknowledge that Agency is to disburse Agency Assistance funds for the pre -development architectural, engineering, and other pre -development processing costs up to Three Hundred Ten Thousand Four Hundred Eleven Dollars ($310,411.00) as set forth in Section 201. 5. [306] Construction Schedule The Developer shall commence and complete the SA Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 4). 6. [307] Indemnity, Bodily Injury and Property Damage Insurance The Developer shall indemnify, defend, hold harmless the Agency and the City, and their respective officers, officials, employees, agents, and representatives, from all claims or 394/015610-0026 1 g 111099.05 a12/13/00 suits for, and damages to, property and injuries to persons, including accidental death (including expert witness fees, attorneys fees, and costs), which may be caused by any of the Developer's activities under this Agreement. The Developer shall maintain until issuance of the Certificate of Completion a commercial general liability policy in the amount of Three Million Dollars ($3,000,000) combined single limit policy, including contractual liability, as shall protect the Developer, the City, and the Agency from claims for such damages; provided, however, this obligation shall cease upon the expiration The policies or appropriate endorsements shall name the Agency and City and their respective officer, officials, employees, agents, and representatives as additional insureds. Coverage shall be "date of occurrence" insurance rather than "claims -made" insurance, and shall be primary and not contributing with any policy or coverage maintained by or obtained by the Agency, and appropriate endorsements shall so state. The policy shall contain a waiver of subrogation. Insurance coverage furnished by the Developer pursuant to this Section 307 shall conform to this Section 307 and shall pertain to all activities on the Site and adjacent public rights -of -way surrounding the SA 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 307 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. Developer additionally agrees to and shall indemnify, defend, and hold harmless the Agency and the City and their respective officers, officials, employees, agents, and representatives, 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 by Developer or its agents pursuant to this Agreement. This obligation and indemnification shall constitute a covenant running with the land throughout the life of the Redevelopment Plan. 7. [308] 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. 394/015610-0026 1 n 111099.05 a12/13/00 7 8. [309] 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 SA 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 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 309. 9. [310] 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 SA 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. [311 ] 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 SA Improvements on the SA Site or other performance under this Agreement, the Developer shall not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, ancestry, or national origin. 11. [312] Taxes and Assessments After the conveyance of title by Agency to Developers or its assignee, the Developer shall pay prior to delinquency all real estate taxes and assessments on the SA Site for any period subsequent to the conveyance of title and possession, so long as the Developer retains any ownership interest therein. The Developer shall remove or have removed any levy or attachment made on the SA Site or any part thereof, or assure the satisfaction thereof within a reasonable time but in any event prior to any sale or transfer of all or any portions thereof. 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, and nothing herein shall limit the remedies available to the Developer in respect thereto. B. [313] Prohibition Against Transfer of the SA Site, the Buildings or Structures Thereon and Assignment of Agreement 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 SA Site or of the buildings or structures on the SA Site. This prohibition shall not be deemed to prevent the granting of temporary or permanent easements or permits to facilitate the development of the 394/015610-0026 20 111099.05 a12/13/00 SA Site or to prohibit rental of the Units to "Eligible Tenants" (as defined in the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions) in conformity with Section 401 of this Agreement. C. [314] Right of the Agency to Satisfy Other Liens on the SA Site After Title Passes After the conveyance of title by Agency 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 SA 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 the SA Improvements in conformity with this Agreement (as determined by the Executive Director of the Agency), upon the written request of the Developer, the Agency shall furnish the Developer with the Certificate of Completion (in the form attached hereto as Attachment No. 9) which evidences and determines the satisfactory completion of the construction and development 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. 9) with respect to the SA 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 SA Improvements as of the time of the issuance of such applicable certificate in accordance with the requirements of this Agreement. The Agency shall not unreasonably withhold the Certificate of Completion. If the Agency refuses or fails to furnish a Certificate of Completion after written request from the Developer, the Agency shall, within ten (10) 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. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain the Certificate of Completion. Upon issuance of a Certificate of Completion (Attachment No. 9) for the SA Improvements, construction of such SA Improvements shall be deemed to have been completed in conformity with this Agreement. The issuance of a Certificate of Completion shall not affect the continued effectiveness of the Regulatory Agreement and Declaration of Conditions, Covenants and Restrictions (Attachment No. 8) recorded pursuant to this Agreement. 394/015610-0026 2 1 111099.05 all/13/00 The Certificate of Completion (Attachment No. 9) is not a notice of completion as referred to in Section 3093 of the California Civil Code. The Certificate of Completion, at Agency's discretion, may be re -titled and recorded as a "Release of Construction Covenants." E. [316] No Encumbrances Except Mortgages, Deeds of Trust, Sales and Lease - Backs or Other Financing for Development Notwithstanding any prohibition in this Agreement, mortgages, deeds of trust, sales and leases -back or any other form of conveyance required for any reasonable method of financing are permitted before issuance of a Certificate of Completion but only for the purpose of securing loans of funds to be used for financing the acquisition of the SA Site, the construction of improvements of the SA Site and any other expenditures necessary and appropriate to develop the SA Site under this Agreement, including such encumbrances related to receipt of Tax Credits. The Developer shall notify the Agency in advance of any mortgage, deed of trust, sale and lease -back or other form of conveyance for financing if the Developer proposes to enter into the same before issuance of a Certificate of Completion. The Developer shall not enter into any such conveyance for financing without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance is given to a responsible financial or lending institution or other acceptable person or entity. Such lender shall be deemed approved unless rejected in writing by the Agency within ten (10) days after notice thereof to the Agency by the Developer. In any event, the Developer shall promptly notify the Agency of any mortgage, deed of trust, sale and lease -back or other financing conveyance, encumbrance or lien that has been created or attached thereto prior to completion of the construction of the improvements on the SA Site whether by voluntary act of the Developer or otherwise. The words "mortgage" and "deed of trust," as used herein, include all other appropriate modes of financing real estate acquisition, construction and land development. The Agency agrees to subordinate this Agreement, the SA Deed of Trust and the Regulatory Agreement and Declaration of Conditions, Covenants and Restrictions to the lien of such mortgage or deed of trust pursuant to a subordination agreement in form and substance reasonably acceptable to the holder of the mortgage or deed of trust and the Agency. F. [317] Holder Not Obligated to Construct Improvements The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the Improvements or to guarantee such construction or completion, nor shall any covenant or any other provision in the grant deed for the SA Site be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the SA Site to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized the City of La Quinta General Plan, the Village on the Green Specific Plan, and applicable zoning, as the same may be amended from time to time. 394/015610-0026 22 111099.05 a12/13/00 G. [318] Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the SA Improvements, the Agency shall at the same time deliver a copy of such notice or demand to each holder or record of any mortgage, deed of trust or other security interest authorized by this Agreement, and to the Tax Credit Limited Partner, if such holder or Tax Credit Limited Partner has previously made a written request to the Agency therefor. Each such holder and Tax Credit Limited Partner shall (insofar as the rights of the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the security interest debt and the lien on its security interest. In the event there is more than one such holder and/or more than one such Tax Credit Limited Partner, the right to cure or remedy a breach or default of the Developer under this Section 318 shall be exercised by the such Tax Credit Limited Partners or the holder first in priority, or as the holder(s) and the Tax Credit Limited Partner(s) may otherwise agree among themselves, but there shall be only one exercise of such right to cure and remedy a breach or default of the Developer under this Section 318. Nothing contained in this Agreement shall be deemed to permit or authorize such Tax Credit Limited Partner(s) or such holder(s) to undertake or continue the construction or completion of the SA Improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) pursuant to this Agreement without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. Such holder(s) and Tax Credit Limited Partner(s) in that event must agree to complete, in the manner provided in this Agreement, the SA Improvements to which the lien or title of such Tax Credit Limited Partner(s) and such holder(s) relates and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder(s) or Tax Credit Limited Partner(s) properly completing the SA Improvements shall be entitled, upon written request made to the Agency, to a Certificate of Completion from the Agency. H. [319] Failure of Holder to Complete Improvements In any case where, six (6) months after default by the Developer in completion of construction of the SA Improvements under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon the SA Site has not exercised the option to construct, or if it has exercised the option and has not proceeded diligently with construction, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If the ownership of the SA Site has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance of the SA Site from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: 1. The unpaid mortgage, deed of trust or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); 2. All expenses with respect to foreclosure; 394/015610-0026 111099.05 a]2/13/00 23 3. The net expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent ownership or management of the SA Site; 4. The costs of any authorized improvements made by such holder; and 5. An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. I. [320] Right of Agency to Cure Mortgage, Deed of Trust or Other Security Interest Default In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to the SA Site prior to the completion of the SA Improvements, and the holder has not exercised its option to complete the SA Improvements, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien upon the SA Site to the extent of such costs and disbursements. Any such lien shall be subject to mortgages, deeds of trust or other security interests executed for the sole purpose of obtaining funds to purchase and develop the SA Site as authorized herein. IV. [400] USE OF THE SITE A. [401] Affordable Rental Senior Citizen Housing Developer shall develop the SA Site with the SA Improvements as described in the Scope of Development (Attachment No. 3). Developer shall restrict the rental of the Units pursuant to the provisions contained in this Agreement and in the Regulatory Agreement and Declaration of Conditions and Restrictions which serve to restrict the rental, use, and occupancy of the Units to senior citizens whose income does not exceed "Moderate Income" as more fully defined in the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions. B. [402] Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions At Close of Escrow, and concurrently with and immediately following recordation of the Grant Deed and the SA Deed of Trust, Developer and Agency shall record against the SA Site the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions substantially in the form set forth as Attachment No. 8. Each and every term, provision, agreement, covenant, and restriction contained in the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions is hereby expressly incorporated herein by reference as if fully set forth herein. 394/015610-0026 24 111099.05 a12/13/00 C. [403] 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 SA Site or any part thereof that the Developer and such successors and assignees, shall devote the SA Site to the uses specified in the Redevelopment Plan, the Regulatory Agreement and Declaration of Conditions, Covenants and Restrictions (Attachment No. 8), the Grant Deed (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 SA 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: "There shall be no discrimination against or segregation or any person or group of persons o 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." 394/015610-0026 111099.05 a12/13/00 25 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 SA 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 SA Site, together with any property acquired by the Developer pursuant to this Agreement, or any part thereof. The covenants against racial discrimination shall remain in effect in perpetuity. D. [404] Effect of Violation of the Terms and Provisions of this Agreement 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 SA 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. E. [405] Maintenance of the Site Developer shall comply with the maintenance provisions set forth in the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions. V. [5001 DEFAULTS AND REMEDIES A. [501] Defaults -- General Subject to the extensions of time set forth in Section 603, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default shall give written notice of default to the other party, specifying the default complained of and the actions required to correct such default. Except as otherwise expressly provided in Sections 508 and 509 of this Agreement, the claimant shall not institute proceedings against the other party if the other party within thirty (30) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy as soon as reasonably practicable after receipt of such notice. 394/015610-0026 26 111099.05 a12/13/00 B. [502] Legal Actions 1. [503] Institution of Legal Actions; Attorney's Fees In addition to any other rights or remedies and subject to the restrictions in Section 501, either party may institute legal to obtain any other legal or equitable remedy authorized by 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. In any such action the prevailing party shall be entitled to its reasonable attorney's fees and costs, including costs incurred in discovery and on appeal, and costs incurred in investigating the action and expert witness fees and costs. 2. [5041 Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [5051 Acceptance of Service of Process In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon any officer or director of the Developer and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. C. [506] Rights and Remedies Are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. D. [507] Inaction Not a Waiver of Default Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 394/015610-0026 2 7 111099.05 a12/13/00 E. [508] Remedies and Rights of Termination [5091 Defaults 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 thirty (30) days after service of the notice of default (or within such other period as is set forth herein), the defaulting party shall be entitled to pursue whatever remedies to which such party is entitled under this Agreement. 2. [5101 Specific Performance; Damages The non -defaulting party, upon expiration of applicable notice and cure periods, shall be permitted to, but not obligated to, commence an action for specific performance of the terms of this Agreement. In this regard, Developer specifically acknowledges that Agency is entering into this Agreement for the purpose of assisting in the redevelopment of the SA Site and the provision of affordable housing and not for the purpose of enabling Developer to speculate in land. Agency shall also have the right to pursue damages for Developer's defaults but in no event shall Developer be entitled to damages from Agency, except for amounts due and payable by Agency to Developer under this Agreement (i.e., Agency Assistance which was due but not paid to Developer), and out-of-pocket losses resulting from non-performance by Agency of its covenants under this Agreement but excluding economic loss, lost profits, or any other economic or consequential damages of any kind. 3. [5111 Termination by the Developer Prior to receipt by Developer of the tax credit reservation issued by the Tax Credit Allocation Committee, Developer may terminate this Agreement by giving ten (10) days written notice to Agency if: (a) Agency is in material default of this Agreement and such default is not cured within thirty (30) days, or commenced to be cured within thirty (30) days and then thereafter diligently prosecuted to completion, after written demand by Developer; or (b) If the Developer, despite its best efforts, fails to satisfy the Conditions Precedent to Conveyance within the time established therefore in the Schedule of Performance (Attachment No. 4); or (c) The Developer, despite its best efforts, has been unable, within the time provided for in Section 202 of this Agreement, to provide Evidence of Financial Capability satisfactory to the Executive Director of the Agency; or (d) The Developer, despite its best efforts, has been unable to obtain the approval of the City and the Agency, within the time set forth in the Schedule of 394/015610-0026 111099.05 a12/13/00 28 Performance (Attachment No. 4) of all plans, drawings and related documents for the SA Development in accordance with Section 303; then, at the option of the Developer, upon such written notice thereof to the Agency as 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. In the event the SA Site has been conveyed to the Developer by the Agency pursuant to this Agreement, the Developer shall immediately convey the SA Site back to the Agency subject only to those title exceptions existing on the property as of the date that the SA Site was conveyed by the Agency to the Developer, and the Agency shall concurrently cancel the SA Note and the SA Deed of Trust. The Developer shall also concurrently transfer, assign and deliver possession of any plans, drawings, architectural renderings, maps, applications, permits, utility agreements, appraisals, market studies or other documentation procured or prepared by or on behalf of the Developer in connection with the proposed development of the Project (the "Developer Documents") to the Agency, at no cost to the Agency provided any cost of the Developer Documents for which the Agency is responsible under this Agreement has been paid or reimbursed by the Agency pursuant to this Agreement. 4. [5121 Termination by the Agency Prior to receipt by Developer of the tax credit reservation issued by the Tax Credit Allocation Committee, Agency may terminate this Agreement by giving ten (10) days written notice to Developer if: a. (a) there is a change of ownership of Developer contrary to the provisions of Section 108 hereof; or b. (b) 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 is not be cured within thirty (30) days, or commenced to be cured within thirty (30) days thereafter diligently prosecuted to completion, after the date of written demand therefor by the Agency; or C. (c) the Developer, despite its best efforts, fails to satisfy the Conditions Precedent to the Conveyance by the time established therefor in the Schedule of Performance (Attachment No. 4); or d. (d) the Developer is otherwise in material default under this Agreement and such default is not cured within thirty (30) days, or commenced to be cured within thirty (30) days and then thereafter diligently prosecuted to completion, after written demand by 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. In the event the SA Site has been conveyed to the Developer by the Agency pursuant to this Agreement, the Developer shall 394/015610-0026 29 111099.05 a12/13/00 7 immediately convey the SA Site back to the Agency subject only to those title exceptions existing on the property as of the date that the SA Site was conveyed by the Agency to the Developer, and the Agency shall concurrently cancel the SA Note and the SA Deed of Trust. The Developer shall also concurrently transfer, assign and deliver possession of any plans, drawings, architectural renderings, maps, applications, permits, utility agreements, appraisals, market studies or other documentation procured or prepared by or on behalf of the Developer in connection with the proposed development of the Project (the "Developer Documents") to the Agency, at no cost to the Agency provided any cost of the Developer Documents for which the Agency is responsible under this Agreement has been paid or reimbursed by the Agency pursuant to this Agreement. F. [513] Option to Purchase, Reenter and Repossess The Agency shall have the additional right, at its option, to reenter and take possession of the SA Site with all improvements thereon and revest in the Agency the estate theretofore conveyed to the Developer, if after conveyance of title to the SA Site and prior to issuance of the Certificate of Completion for the lot or lots in question, the Developer shall: 1. Fail to proceed with the construction of the improvements as required by this Agreement (subject to any force majeure delays) for a period of six (6) months after written notice of such abandonment or suspension from the Agency subject to any force majeure delays under Section 603; or 2. Abandon or substantially suspend construction of the improvements for a period of six (6) months (subject to any force majeure delays) after written notice of such abandonment or suspension from the Agency; or 3. Transfer or suffer any involuntary transfer of the SA Site or any part thereof in violation of this Agreement. Such right to reenter, repossess and revest to the extent provided in this Agreement shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit: a. Any mortgage, deed of trust or other security instrument permitted by this Agreement; or b. Any rights or interest provided in this Agreement for the protection of the holder of such mortgages, deeds of trust or other security instruments. The grant deed shall contain appropriate reference and provision to give effect to the Agency's right, as set forth in this Section 513 under specified circumstances prior to the issuance of the Certificate of Completion, to reenter and take possession of the SA Site or individual lots thereof with all improvements thereon and to terminate and revest in the Agency the estate conveyed to the Developer. Upon the revesting in the Agency of title to the SA Site or any part thereof as provided in this Section 513, the Agency shall, pursuant to its responsibilities under state law, use its best efforts to resell the SA Site or part thereof as soon and in such manner as the Agency shall find 394/015610-0026 30 111099.05 a12/13/00 feasible and consistent with the objectives of such law and of the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the improvements, or such other improvements in their stead, as shall be satisfactory to the Agency and in accordance with the uses specified for the SA Site or part thereof in the Redevelopment Plan. Upon such resale of the SA Site, the proceeds thereof shall be applied: (i) First, to reimburse the Agency on its own behalf or on behalf of the City for all costs and expenses incurred by the Agency (excluding salaries to personnel and other items of overhead of the Agency or City) in connection with the recapture, management and resale of the SA Site or part thereof (but less any income derived by the Agency from the SA Site or part thereof in connection with such management); all taxes, assessments and water and sewer charges with respect to the SA Site or part thereof (or, in the event the SA Site is exempt from taxation or assessment or such charges during the period of ownership, then such taxes, assessments or charges as determined by the County assessing official as would have been payable if the SA Site were not so exempt); any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer; any reasonable expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the SA Site or part thereof, and any amounts otherwise owing the Agency by the Developer; and (ii) Second, to reimburse the Developer up to the amount equal to the sum of: (a) the Purchase Price paid to the Agency by the Developer for the Site (or allocable to the part thereof); plus (b) the costs and expenses incurred by the Developer for the development of the SA Site and for construction of the SA Improvements existing on the SA Site at the time of the reentry and repossession; less (c) any payments for work that has not been completed by the Developer on the SA Site or the SA Improvements. Any balance remaining after such reimbursements shall be retained by the Agency as its property. To the extent that the rights established in this Section 516 involve a forfeiture, it must be strictly interpreted against the Agency, the party for whose benefit it is created. The rights established in this Section 513 are to be interpreted in light of the fact that the Agency will convey the SA Site to the Developer for development and not for speculation. VI. [600] GENERAL PROVISIONS A. [601] Notices, Demands and Communications Between Parties Written notices, demands and communications between the Agency and the Developer shall be sufficiently given if (i) delivered by hand, (ii) delivered by reputable same - day or overnight messenger service that provides a receipt showing date and time of delivery, or (iii) 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 394/015610-0026 111099.05 a12/13/00 31 manner to such other addresses as either party may from time to time designate by mail as provided in this Section 601. Any written notice, demand, or communication shall be deemed received immediately if delivered by hand or delivered by messenger in accordance with the preceding paragraph, and shall be deemed received on the fifth (5th) day from the date it is postmarked if delivered by registered or certified mail in accordance with the preceding paragraph. B. [602] Conflicts of Interest No member, officer, official, or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. C. [603] Enforced Delay; Extension of Times of Performance In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other 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 as the Agency 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 SA Site, because of economic or market conditions. 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. 394/015610-0026 111099.05 a12/13/00 32 E. [605] Interpretation; Entire Agreement, Waivers; Counterparts; Attachments The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. 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. This Agreement may be executed in counterparts, each of which, when this Agreement has been signed by all the Parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. The exhibits and attachments to this Agreement are incorporated herein and made a part hereof. F. [605] No Brokers Agency and Developer each represent and warrant to the other that it has not retained any real estate broker, agent, or finder in connection with this Agreement or the disposition or conveyance of the SA Site as set forth herein, and each shall indemnify, defend, and hold harmless the other from and against any claim or lawsuit (including attorneys fees) for the payment of any real estate commission or finder's or broker's fees arising out of this Agreement to the extent caused by the acts or omissions of the Agency or Developer as the case may be. G. [606] Amendments to this Agreement The Developer and the Agency agree to mutually consider reasonable requests for amendments to this Agreement which may be made by any of the parties hereto, lending institutions, or bond counsel or financial consultants to the Agency, provided such requests are consistent with this Agreement and would not substantially alter the basic business terms included herein. The Agency's Executive Director shall have the authority to approve, on behalf of the Agency, amendments to this Agreement that would not substantially alter the basic business terms. All other amendments shall require the action of the Agency Board. All amendments, including those authorized to be approved by the Agency's Executive Director, shall be in writing and shall be signed by authorized representatives of Agency and Developer. The Agency's Executive Director shall have the authority, on behalf of the Agency, to approve extensions of time in Developer's performance under the this Agreement, including but not limited to times of performance set forth in the Schedule of Performance, for a cumulative period of up to one (1) year. 394/015610-0026 3 3 111099.05 a12/13/00 IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement on the respective dates set forth below. Dated: /a.-ao , 2000 �Mlec APPROVED AS TO FORM: RUTAN. & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency Dated: , 2000 LA QUINTA REDEVELOPMENT AGENCY, a public bod corporate and oli i B / Thomas P. Genovese, Executive Director DC & TC, LLC, a California limited liability company By: Name: Its: 394/015610-0026 111099.05 a12/13/00 34 ATTACHMENT NO. 1 SITE MAP [SEE FOLLOWING PAGE] 394/015610-0026 111099.05 a12/13/00 ATTACHMENT 1 SITE MAP JJY > NOSS3. 133SI! c a 4 ATTACHMENT NO.2 LEGAL DESCRIPTION REMAINDER PARCEL, OF TRACT NO. 28601-1, AS SHOWN BY MAP ON FILE IN BOOK 278, PAGES 86 THROUGH 90 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 394/015610-0026 111099.05 a12/13/00 ATTACHMENT NO.3 SCOPE OF DEVELOPMENT SENIOR CITIZEN APARTMENT COMPLEX I. GENERAL SUMMARY This document outlines general requirements for improvements to the SA Site. Detailed requirements shall be addressed in the development review process and approval of specific construction plans and related documents. H. DEVELOPMENT CONCEPT The SA Site shall developed and improved by the Developer in accordance with the provision of this Agreement, subject to all applicable codes, ordinances, and statutes including requirements and procedures set forth in the La Quinta Municipal Code, and the Redevelopment Plan regulations adopted in conjunction with or subsequent to execution of this Agreement. The SA Site shall be developed with a 118-unit ("Units") rental apartment complex, the use and occupancy of which shall be restricted to senior citizens who are "Eligible Tenants" as defined in the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions. The SA Improvements shall also include common areas/recreational facilities, swimming pool, parking, landscaping, and other amenities as shown on the plans for the Project approved by the City. III. ON -SITE DEVELOPMENT AND IMPROVEMENTS Developer shall prepare such plans, reports, and studies, and obtain such permits and approvals as required, including as applicable grading plans, for construction of the project. Plans shall be prepared by a licensed civil engineer in good standing and subject to the approval of the Director of Public Works. Developer shall grant and permit all necessary and appropriate utility easements and rights for the development of the Site, including but not limited to sanitary sewers, storm drains, water, electrical power, telecommunications, natural gas, cable television, etc. IV. LANDSCAPING Developer shall be responsible to fully landscape the SA Site in accordance with a landscape plan approved by the City. V. PUBLIC IMPROVEMENTS Developer, as part of the Project, shall be responsible for the public improvements listed in Attachment No. 12. With respect thereto, Developer shall be responsible for obtaining and delivering to the City such bonds or other improvement security as City may require in accordance with applicable law, including but not limited to payment and performance bonds. 394/015610-0026 111099.05 a12/13/00 VI. DEVELOPMENT STANDARDS All development on the SA Site shall conform with the development standards adopted as part of the Village on the Green Specific Plan. A. General Project Design All structures on the Site shall be designed and constructed to be consistent with the conceptual drawings prepared as part of the development proposal submitted by the Developer. B. Dwelling Unit Design The dwelling unit design shall be approved by the Agency and City as part of the plan approval process. C. Development Process The developer and its representatives, including its architect and engineer, shall work with the Agency and City Staff to develop and execute the architectural concept, architectural drawings, Site plan, precise plan, grading plan, off -Site improvement plans, landscaping plans and related plans consistent with the conditions of approval adopted by the City and Agency and the applicable regulations contained in the La Quinta Municipal Code. 394/015610-0026 2 111099.05 a12/13/00 ATTACHMENT NO.4 SCHEDULE OF PERFORMANCE ACTIVITY TIME FRAME 1. City and Agency approve this Agreement Not later than November 21, 2000. 2. Agency and Developer execute Agreement. Within seven (7) business days after approval of Agreement by the Agency. 3. Agency and Developer open escrow by Within ten (10) business days after execution depositing executed Agreement into of Agreement by Agency and Developer. escrow. 4. Agency and Developer satisfy all Within thirty (30) days after escrow opens. conditions to close of escrow set forth in Agreement and close escrow and effect conveyance of SA Site to Developer. 5. Developer hires appraiser to appraise Not later than December 31, 2000. property if required for Tax Credit application. 6. Developer hires consultant to undertake Not later than January 15, 2001. market study if market study is required for Tax Credit application. 7. Developer submits building plans and all Not later than march 1, 2001. other Project plans for plan check with City. 8. Developer submits complete application On or before application deadline for year for Year 2001 first round application for Tax 2001 first round application as set by State of Credits. California Tax Credit Allocation Committee ("TCAC"). 9. Developer commences construction and On or before 120 days from Tax Credit submits other required materials to TCAC on Reservation issued by TCAC. If TCAC behalf of Project to meet criteria of TCAC "readiness to proceed" specifications are "readiness to proceed" criteria in accordance modified for Year 2001 to provide a different with TCAC 2001 Qualified Allocation Plan time period than 120 days, this schedule shall and 2001 Adopted Program Regulations. be automatically updated to meet TCAC requirements. 10. Developer completes construction of the Not later than December 31, 2002. Project and receives certificate of occupancy from the City. 394/015610-0026 111099.05 a12/13/00 11. Agency issues Certificate of Completion Following performance of Item No. 10 and for the Project. upon written request of Developer therefor and provided Developer has satisfied all conditions precedent to receipt of Certificate of Completion. It is understood that the foregoing Schedule is subject to all of the terms and conditions of the text of the Agreement. The summary of items of performance in the Schedule is not intended to supercede or modify any more complete description in the text; in the event of any conflict or inconsistency between this Schedule and text of the Agreement, the text of the Agreement shall govern. 394/015610-0026 111099.05 a12/13/00 ATTACHMENT NO.5 GRANT DEED [SEE FOLLOWING PAGE] 394/015610-0026 111099.05 a12/13/00 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: DC & TC, LLC 71-084 Tamarisk Lane Rancho Mirage, CA 92270. MAIL TAX STATEMENTS TO: Same as above GRANT DEED FOR VALUABLE CONSIDERATION, undersigned, LA QUINTA REDEVELOPMENT ("Grantor"), hereby grants to DC & TC, LL ("Grantee"), that certain real property in the Cit California legally described as: receipt of which is hereby acknowledged, the AGENCY, a public body corporate and politic C., a California Limited Liability Company y of La Quinta, County of Riverside, State of REMAINDER PARCEL, OF TRACT NO.28601-1, AS SHOWN BY MAP ON FILE IN BOOK 278, PAGES 86 THROUGH 90 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, together with any and all buildings and improvements located thereon (the "Property"), subject to easements and non -monetary encumbrances, and reservations of record. Dated: LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic By: Name: Title: THOMAS P. GENOVESE EXECUTIVE DIRECTOR 394/015610-0026 111099.05 a12/13/00 STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On , before me, a notary public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official. seal. [SEAL] 394/015610-0026 2 111099.05 a12/13/00 ATTACHMENT 6 SA DEVELOPMENT PROMISSORY NOTE FORM OF DEVELOPER PROMISSORY NOTE SECURED BY DEED OF TRUST [SEE FOLLOWING PAGES] 394/015610-0026 111099.05 a12/13/00 PROMISSORY NOTE $6,000,000.00 ("Loan Amount") ("Note Date") FOR VALUE RECEIVED, the undersigned (herein, the "Maker") hereby promises to pay to the order of the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Holder" or "Agency"), at a place designated by Holder, the principal sum of SIX MILLION DOLLARS ($6,000,000.00) ("Note Amount"), plus accrued interest, or such lesser amount which shall from time to time be owing hereunder pursuant to the terms hereof. The principal sum hereof shall be disbursed pursuant to the terms and conditions set forth in that certain Affordable Housing Agreement by and among Maker and Holder, dated , ("AHA"), pertaining to Maker's acquisition and redevelopment of certain real property defined in the AHA as the "SA Site". Reference is also made to the following additional agreements and documents involving Maker and Holder and/or pertaining to the Site: (i) Deed of Trust And Security Agreement With Assignment of Rents and Agreements, by and between Maker as borrower, Holder as beneficiary, and Stewart Title Company, as Trustee, dated , and recorded on , as Instrument No . , in the Office of the Riverside County Recorder ("Agency Deed of Trust"). The Agency Deed of Trust partially secures repayment of this Note. (ii) Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions, dated , by and between Maker and Holder, for the benefit of Holder, and recorded on , as Instrument No. in the Office of the Riverside County Recorder ("Agency Regulatory Agreement"). All of the foregoing listed documents are referred to herein collectively as the "Agency Agreements." The Agency Agreements are incorporated herein as though fully set forth. Except as otherwise provided herein, the defined terms used in this Note shall have the same meaning as set forth in the AHA. 1. Purpose of Loan. The loan evidenced by this Note is a loan for the purpose of acquisition and development of the SA Site in accordance with the AHA. 2. Principal Amount. The principal amount of this Loan shall be SIX MILLION DOLLARS ($6,000,000.00). Simple interest shall accrue on the outstanding principal amount at THREE PERCENT (3%). 3. Term of Note; Repayment. 394/015610-0026 111099.05 a12/13100 3.1 Maker shall be obligated to repay the principal amount of this Note and the accrued interest, without set off or deduction, by paying to Holder, each calendar year in which there is positive Cash Flow (as the term "Cash Flow" is defined in Section 3.1.1), ONE HUNDRED PERCENT (100%) of that calendar year's Cash Flow. Each such yearly payment shall be due not later than the January 301h that follows the end of each such calendar year, or, if such January 301h is a Saturday, Sunday, or legal holiday, the payment shall be due the next succeeding business day. 3.1.1 For purposes of this Section 3.1, the term "Cash Flow" means: (A) all income derived by Maker from the Site including, without limitation, all tenant rent, all rental subsidy payments made by governmental agencies, and income from any source related to Maker's owning, leasing, maintenance, and operation of the Site and Improvements ("Gross Income'); less (B) (i) expenses actually and reasonably incurred by Maker in owning, leasing, operating, maintaining, and repairing the Site (excluding insurance proceeds and any costs or expenses paid or reimbursed by third parties), including without limitation, insurance, taxes, maintenance and repair expenses for the Site, capital improvements not funded from the Capital Replacement Reserve (the Capital Replacement Reserve shall be the first source of funds used by Maker for capital improvements to the Site), management costs, a general partner or managing general partner asset management fee not to exceed two percent (2%) of Gross Income, a partnership management fee not to exceed Fifteen Thousand Dollars ($15,000) per calendar year, developer fees, reasonable accounting and legal fees, and cost of debt service on loans secured by deeds of trust which are recorded against the Site with a higher priority than the Agency Deed of Trust, and any loans with a lower priority than the Agency Deed of Trust if such loans are approved in advance by the Agency; (ii) the net amount of deposits, if any, into the Capital Replacement Reserve; and (iii) a property management fee which shall not exceed six percent (6%) of the Gross Income generated by the Site and Improvements. Cash Flow shall be calculated on an accrual basis without regard to any carry-over of profit or loss from any prior calendar year. 3.1.2 For purposes of Section 3.1.1, the term "Capital Replacement Reserve" means an amount equal to the higher of $200 per unit per year as of the year 2001 increasing annually by the percentage increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles -Long Beach -Anaheim Average, All Items (1984=100), or such replacement reserves as are required by the State of California Tax Credit Allocation Committee. The Capital Replacement Reserve shall be the first source of funds used by Maker for capital improvements to the Site. 3.2 Notwithstanding the foregoing, all unpaid principal and all accrued but unpaid interest on this Note shall be due and payable on the fifty-fifth (55th) anniversary date of the Certificate of Completion, as defined in the AHA (the "Maturity Date"). 3.3 Any payments made by Maker in payment of this Note shall be applied in the following order: (i) first to the interest then accrued and due on the unpaid principal balance under this Note, (ii) second to reduction of the principal balance of this Note. 3.4 This Note may be prepaid in whole or in part at any time without penalty. 394/015610-0026 2 111099.05 a12/13/00 4. Default: Cross -Default: Acceleration. 4.1 In addition to Maker's failure to timely perform the requirements of this Note, Maker shall also be in default of this Note if Maker, without the prior written approval of Holder, which approval may be given or withheld in Holder's sole and absolute discretion, refinances any outstanding loan or note secured by the Site for an amount greater than the sum (i) the then - outstanding principal balance of such secured loan(s) or note(s), plus (ii) the reasonable costs of such refinance transaction, which shall not include loan points or origination fees greater than two percent (2%) of the then -outstanding principal balance of such secured loan(s) or note(s). Notwithstanding the foregoing, Maker shall not be in default of this Note and need not seek approval of Holder in refinancing any outstanding loan or note secured by the Site if all net proceeds from such refinance are applied against the unpaid balance of this Note and the debt service arising from such refinance does not reduce Cash Flow. 4.2 Default by Maker of this Note or of any of the Agency Agreements, shall constitute a default of this Note and all of the Agency Agreements. 4.3 In the event of a default of this Note or a default of any of the Agency Agreements by Maker, which default has not been cured within the cure period applicable to such default, Holder may, at its option, declare this Note and the entire obligations hereby evidenced immediately due and payable and collectible then or thereafter as Holder may elect, regardless of the date of maturity, and notice of the exercise of said option is hereby expressly waived by Maker. 4.4 The limited partner of a Tax Credit limited partnership for the Project shall have the same rights as the Holder set forth in this Section 4. 5. Collection Costs; Attorneys' Fees. If, because of any event of default under this Note or any of the Agency Agreements, any attorney is engaged by Holder to enforce of defend any provision of this instrument, whether or not suit is filed hereon, then Maker shall pay upon demand reasonable attorneys' fees, expert witness fees and all costs so incurred by Holder together with interest thereon until paid at the applicable rate of interest payable hereunder, as if such fees and costs had been added to the principal owing hereunder. 6. Waivers by Maker. Maker and all endorsers, guarantors and persons liable or to become liable on this Note waive presentment, protest and demand, notice of protest, demand and dishonor and nonpayment of this Note and any and all other notices or matters of a like nature, and consent to any and all renewals and extensions near the time of payment hereof and agree further that at any time and from time to time without notice, the terms of payment herein may be modified or the security described in any documents securing this Note released in whole or in part, or increased, changed or exchanged by agreement between Holder and any owner of the premises affected by said documents securing this Note, without in any way affecting the liability of any party to this Note or any persons liable or to become liable with respect to any indebtedness evidenced hereby. 7. Severability. The unenforceability or invalidity of any provision or provisions of this Note as to any persons or circumstances shall not render that provision or those provisions 394/015610-0026 3 111099.05 a12/13/00 unenforceable or invalid as to any other provisions or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable. 8. Modifications. Neither this Note nor any term hereof may be waived, amended, discharged, modified, changed or terminated orally; nor shall any waiver of any provision hereof be effective except by an instrument in writing signed by Maker and Holder. No delay or omission on the part of Holder in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. 9. No Waiver by Holder. No waiver of any breach, default or failure of condition under the terms of this Note shall be implied from any failure of the Holder of this Note to take, or any delay be implied from any failure by the Holder in taking action with respect to such breach, default or failure from any prior waiver of any similar or unrelated breach, default or failure. 10. Usury. Notwithstanding any provision in this Note, the total liability for payment in the nature of interest shall not exceed the limit imposed by applicable laws of the State of California. 11. Nonassignability. Maker may not transfer, assign, or encumber this Note in any manner without the prior, express, written authorization of Holder, which may be given or withheld by Holder in Holder's sole and absolute discretion. It shall be deemed reasonable for Holder to refuse authorization for any reason or no stated reason. Holder may freely transfer, assign, or encumber Holder's interest in this Note in any manner, at Holder's sole discretion. 12. Governing Law. This Note has been executed and delivered by Maker in the State of California and is to be governed and construed in accordance with the laws thereof. 13. Time of Essence. Time is of the essence in the performance of the obligations and provisions set forth in this Note. 14. Non -Recourse. Notwithstanding anything to the contrary herein contained, (i) the liability of Maker shall be limited to its interest in the Site and any rents, issues, and profits arising the Site and, in addition, with respect to any obligation to hold and apply insurance proceeds, proceeds of condemnation or other monies hereunder, any such monies received by it to the extent not so applied in accordance with the terms of this Note; (ii) no other assets of Maker shall be affected by or subject to being applied to the satisfaction of any liability which Maker may have to Holder or to another person by reason of this Note; and (iii) any judgment, order, decree or other award in favor of Holder shall be collectible only out of, or enforceable in accordance with, the terms of this Note by termination or other extinguishment of Maker's interest in the Site. Notwithstanding the foregoing, it is expressly understood and agreed that the aforesaid limitation on liability shall in no way restrict or abridge Maker's continued personal liability for: (A) fraud or willful or grossly negligent misrepresentation made by Maker in connection with this Note or any of the Agency Agreements; (B) misapplication of (a) proceeds of insurance and condemnation or (b) rent received by Maker under rental agreements entered into for any portion of the Site; (C) the retention by Maker of all advance rentals and security deposits of tenants not refunded to or forfeited by such tenants; (D) the indemnification undertakings of Maker under the Agency Agreements; and (E) material waste by Maker with respect to the Site. 394/015610-0026 111099.05 a12/13/00 4 IN WITNESS WHEREOF, Maker has executed this Note as of the date and year first above written. "Maker" DC & TC, LLC, a California limited liability company By: _ Name: Its: 394/015610-0026 111099.05 a12/13/00 5 ATTACHMENT NO. 7 FORM OF DEED OF TRUST [See following pages] 394/015610-0026 111099.05 al2/13/00 Recording Requested By And When Recorded Mail To: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Attention: Executive Director Space Above For Recorder Exempt from Recording Fee Per Gov. Code § 6103 DEED OF TRUST AND SECURITY AGREEMENT, WITH ASSIGNMENT OF RENTS AND AGREEMENTS NOTICE: THIS DEED OF TRUST AND SECURITY AGREEMENT, WITH ASSIGNMENT OF RENTS AND AGREEMENTS CONTAINS A SUBORDINATION CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE LAND BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT This Deed of Trust, Security Agreement, and Fixture Filing with Assignment of Rents and Agreements (the "Deed of Trust") is made as of , by DC & TC, LLC, a California limited liability company (the "Trustor"), to STEWART TITLE COMPANY (the "Trustee"), for the benefit of the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Beneficiary"). WITNESSETH: Trustor does irrevocably grant, transfer, and assign to Trustee, in trust, with power of sale, all Trustor's right, title, and interest now owned or later acquired in the fee interest in the real property (the "Land") located in the City of La Quinta, County of Riverside, California, and more particularly described in attached Exhibit A, attached hereto and incorporated herein by reference (Trustor agrees that any greater title to the Land later acquired during the term of this Deed of Trust will be subject to this Deed of Trust),together with the rents, issues, and profits, subject however, to the right, power, and authority granted and conferred on Trustor in this Deed of Trust to collect and apply the rents, issues, and profits; and Trustor also irrevocably grants, transfers, and assigns to Trustee, in trust, with power of sale, all of Trustor's right, title, and interest now owned or later acquired to the following property (including the rights or interests pertaining to the property) located on the Land: (1) all appurtenances, easements, water and water rights, and pumps and pumping plants, and all shares of stock evidencing these; all of these items, whether now or later acquired, being declared to be for all purposes of this Deed of Trust a part of the Land, the specific enumerations in this Deed of Trust not excluding the general; (2) the rents, issues, profits, and proceeds thereof, and 3941015610-0026 111099.05 a12/13/00 1 (3) the Land to the extent any fee interest is not included in clauses (1) and (2) above. For the purpose of securing, in the order of priority that Beneficiary determines (a) repayment of moneys advanced by the Beneficiary to the Trustor (the "Loan") as evidenced by a Developer Promissory Note of Trustor of the same date as this Deed of Trust in the principal amount of SIX MILLION DOLLARS ($6,000,000.00) (the "Developer Note"), payable to Beneficiary or to order, and all extensions, modifications, or renewals of that Developer Note; (b) payment of all sums, if any, due on the Loan according to the terms of the Developer Note; (c) payment of all other sums (with interest as provided in this Deed of Trust) becoming due and payable to Beneficiary or Trustee pursuant to the terms of this Deed of Trust; and (d) performance of every obligation contained in this Deed of Trust, the Developer Note, the Affordable Housing Agreement of the same date as this Deed of Trust entered into by and between the Trustor and the Beneficiary (the "Affordable Housing Agreement"), and any agreements, supplemental agreements, or other instruments of security executed by Trustor as of the same date of this Deed of Trust for the purpose of further securing any obligation secured by this Deed of Trust, or any part of it, or for the purpose of supplementing or amending this Deed of Trust or any instrument secured by this Deed of Trust. 1.0 DEFINITIONS Certain Defined Terms. Capitalized terms used herein shall have the following meanings unless the context in which they are used clearly requires otherwise. Collateral: The Collateral as defined in Section 9.1 of this Deed of Trust. Default Rate: The maximum rate of interest authorized under the laws of the State of California. Event of Default: Any of the events of default listed under Section 8.1 herein. Loan: The principal and all other amounts, payments, and premiums due, if not waived, under the Developer Note and any extensions or renewals (including, without limitation, extensions or renewals at a different rate of interest, regardless of whether evidenced by a new or additional promissory note or notes as agreed to in writing by Trustor), and all other indebtedness or obligations of Trustor to Beneficiary under or secured by this Deed of Trust. Hazardous Materials: The meaning set forth in Section 212 of the Affordable Housing Agreement. 394/015610-0026 111099.05 a12/13/00 2 Hazardous Materials Claim: Any enforcement, cleanup, removal, remedial, or other governmental, regulatory, or private actions, agreements, or orders threatened, instituted, or completed pursuant to any Hazardous Materials Law, together with all claims made by any third party against Trustor or the Land relating to damage, contribution, cost -recovery compensation, loss, or injury resulting from the presence, release, or discharge of any Hazardous Materials. Hazardous Materials Law: Those federal, state, or local laws set forth in Section 212.5 of the Affordable Housing Agreement. Impositions: All real estate and personal property taxes and other taxes and assessments, water and sewer rates and charges, and all other governmental charges and any interest or costs or penalties with respect to those charges, assessments, or taxes, ground rent and charges for any easement or agreement maintained for the benefit of the Land, general and special, that at any time may be assessed, levied, imposed, or become a lien on the Land or the rent or income received from the Land, or any use or occupancy of the Land; and any charges, expenses, payments, or assessments of any nature, if any, that are or may become a lien on the Land or the rent or income received from the Land. Improvements: All buildings, improvements, and appurtenances on the .Land, and all improvements, additions, and replacements of those improvements and other buildings and improvements, at any time later constructed or placed on the Land. Land: The real property as located in the City of La Quinta, Riverside County, California and more particularly described in attached Exhibit A and any fee interest now owned or later acquired in such property, together with all rights, privileges, hereditaments, tenements, rights of way, easements and appurtenances of the land. Material Adverse Change: Any material and adverse change in: a. the business or properties or condition (financial or otherwise) of Trustor; or b. the condition or maintenance of the Land. Obligations: All of the covenants, promises, and other obligations (other than the Loan) made or owing by Trustor to or due to Beneficiary under or as set forth in the Deed of Trust. Person: Any natural person, corporation, firm, association, government, governmental agency, or any other entity, whether acting in an individual, fiduciary, or other capacity. Personalty: Trustor's interest, if any, in all accounts, contract rights, and general intangibles (specifically including any insurance proceeds and condemnation awards) arising out of the ownership and maintenance of the Land. Project: The land and the SENIOR CITIZEN RENTAL APARTMENT project described in the Affordable Housing Agreement. Receiver: Any trustee, receiver, custodian, fiscal agent, liquidator, or similar officer. 394/015610-0026 3 111099.05 a12/13/00 Release: Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including continuing migration, of Hazardous Substances that goes into the soil, surface water, or groundwater of the Land, whether or not caused by, contributed to, permitted by, acquiesced to, or known to Trustor. Security Documents: This Deed of Trust and all other documents now or later securing any part of the payment of the Loan or the observance or performance of the Obligations. Title Policy: The title insurance policy issued by Stewart Title Insurance Company to Beneficiary. Trustor: Collectively, . Trustor or any obligor under the Developer Note and the Affordable Housing Agreement, together with their respective affiliates and their respective employees, representatives, and agents. 2.0 WARRANTY OF TITLE Trustor warrants that: 1. Trustor is the owner of the Land; 2. Trustor shall maintain and preserve the lien of this Deed of Trust until the Loan has been paid in full or has been waived by the Beneficiary under the provisions of the Developer Note; 3. Trustor has good, right, and lawful authority to grant the Land as provided in this Deed of Trust; and 4. Trustor will forever warrant and defend the grant made in this Deed of Trust against all claims and demands, except as are specifically set forth in this Deed of Trust. 3.0 REPRESENTATIONS AND WARRANTIES Trustor represents and warrants to Beneficiary that as of the date of this Deed of Trust: A. Organization of the Trustor. 1. Trustor is a duly organized limited liability company, validly existing, and in good standing under the laws of the State of California and is qualified to do business in California. 2. Trustor has the requisite power and authority to own and maintain its properties, to carry on its business as now being conducted, and to own, maintain and lease the Land. 394/015610-0026 111099.05 a12/13/00 4 B. Validity of Security Documents. 1. The execution, delivery, and performance by the Trustor of the Security Documents and the borrowings evidenced by the Developer Note: a. are within the power of the Trustor; b. have been duly authorized by all requisite corporate or partnership actions, as appropriate; C. have received all necessary governmental approval; and d. will not violate any provision of law, any order of any court or agency of government, the charter documents of the Trustor, or any indenture, agreement, or any other instrument to which the Trustor is a party or by which the Trustor or any of its property is bound, nor will they conflict with, result in a breach of, or constitute (with due notice and lapse of time) a default under any indenture, agreement, or other instrument, or result in the creation or imposition of any lien, charge, or encumbrance of any nature on any of the property or assets of the Trustor, except as contemplated by the provisions of the Security Documents. 2. Each of the Security Documents, when executed and delivered to Beneficiary, will constitute a valid obligation, enforceable in accordance with its terms. 3. All information and financial statements with respect to the Trustor furnished to Beneficiary disclose all liabilities of the Trustor, fixed and contingent, as of their respective dates. C. Use of Proceeds of Loan. Trustor will use the funds or the Land advanced pursuant to the Developer Note for the purposes set forth in the Affordable Housing Agreement. D. Other Arrangements. Trustor is not a party to any agreement or instrument materially and adversely affecting Trustor's present or proposed business, properties, assets, operation, or condition, financial or otherwise; and Trustor is not in default in the performance, observance, or fulfillment of any of the material obligations, covenants, or conditions in any agreement or instrument to which Trustor is a party that materially and adversely affect Trustor's present or proposed business, properties, assets, operation, or condition, financial or otherwise. E. Litigation. There is not now pending against Trustor, nor to the knowledge of the Trustor is there threatened, any action, suit, or proceeding at law or in equity or before any administrative agency that, if adversely determined, would materially impair or affect: 394/015610-0026 5 111099.05 al2/13/00 1. the financial condition or the ability of the Trustor necessary to operate and maintain and sell the Land and Units and other improvements in accordance with the Affordable Housing Agreement; or 2. the condition of the Land. F. Other Warranties. 1. The Land is used principally or primarily for purposes designated in the Affordable Housing Agreement; 2. Trustor is engaged in the development, operation and leasing of the Improvements; and 3. the principal purpose of the Loan is to induce, cause and assist the development, construction and sale of 118 units of rental housing on the Land for senior citizens, at affordable costs for very low, lower, and moderate income households. G. Compliance with Laws. Except as otherwise provided in this Deed of Trust, the Land and the proposed and actual use of the Land comply in all material respects with all laws, ordinances, rules, and regulations of all local, regional, county, state, and federal governmental authorities having jurisdiction (including, but not limited to, the Americans With Disabilities Act), and there is no action or proceeding pending or, to the knowledge of Trustor after due inquiry, threatened before any court, quasi-judicial body, or administrative agency at the time of any disbursement by Beneficiary relating to the validity of the Loan or the proposed or actual use of the Land. 4.0 AFFIRMATIVE COVENANTS Until the entire Loan has been paid in full or waived, Trustor covenants to and agrees with Beneficiary as follows: A. Obligations of Trustor. Subject to the provisions set forth in the Developer Note, Trustor will pay the Loan and Trustor will continue to be liable for the payment of the Loan until it has been paid in full or until repayment has been waived or forgiven by the Beneficiary under the terms of the Developer Note. Trustor: 1. will timely perform all the covenants, agreements, terms, and conditions to be performed by Trustor: a. under this Deed of Trust, Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions, and the Affordable Housing Agreement; and 394/015610-0026 111099.05 a12/13/00 6 b. as required of Trustor under each document and agreement constituting one of the Security Documents.; and 2. will not cancel, surrender, modify, amend, or permit the cancellation, surrender, modification, or amendment of any of the previously mentioned agreements or any of the covenants, agreements, terms, or conditions contained in any of them, except in the ordinary course of Trustor's business, without the prior written consent, in each case, of Beneficiary which consent shall not be unreasonably withheld. B. Insurance. 1. Trustor, at its sole cost and expense, will obtain and maintain or shall cause to be obtained and maintained commercial general liability insurance covering the Land and the ownership, use, occupancy, and maintenance of the Land and the Project in accordance with the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions and with the Affordable Housing Agreement. 2. Trustor, at its sole cost and expense, but for the mutual benefit of Trustor and Beneficiary, will maintain during the term of this Deed of Trust other insurance, and in any amounts, as may from time to time be reasonably required by Beneficiary against other insurable risks. 3. All policies of insurance required pursuant to this Deed of Trust will be satisfactory in form and substance to Beneficiary and will be approved by Beneficiary as to amounts, form, risk coverage, deductibles, insurer, loss payable, and cancellation provisions. 4. Effective on the occurrence of any Event of Default, all of Trustor's right, title, and interest in all policies of property insurance and any unearned premiums paid are assigned to Beneficiary, who may assign them to any purchaser of the Land at any foreclosure sale. C. Maintenance, Waste, and Repair. Trustor will maintain the Land now or later existing in good and tenantable repair, and will not structurally alter any Improvements located thereon without the prior written consent of Beneficiary, or remove or demolish them in whole or in part, nor will Trustor suffer any waste of the Land or make any change in the use of the Land that will in any way impair the security of this Deed of Trust. Trustor will not abandon the Land or leave the Land unprotected, vacant, or deserted. D. Impositions. Trustor will pay prior to delinquency all Impositions that are or that may become a lien on the Land or are assessed against the Land or its rents, royalties, profits, and income. 394/015610-0026 1 111099.05 a12/13/00 E. Compliance with Law. Trustor will preserve and keep in full force its existence, rights, and powers. Trustor will promptly and faithfully comply with all present and future laws, ordinances, rules, regulations, and requirements of every governmental authority or agency and of every board of fire underwriters (or similar body exercising similar functions) having jurisdiction that may be applicable to it or to the Land or to the use or manner of occupancy, possession, operation, maintenance, alteration, or repair of the Land or any part of it. F. Books and Records. Trustor will maintain complete books of account and other records reflecting the results of Trustor's operations and maintenance of the Land, in a form reasonably satisfactory to Beneficiary, and furnish to Beneficiary any information about the financial condition of Trustor, and the operations and maintenance of the Land as Beneficiary reasonably requests, including, but not limited to, copies of any reports by independent public accountants submitted to Trustor concerning the Land. Beneficiary will have the right, at all reasonable times and on reasonable notice, but not more frequently than once per calendar year unless a greater frequency is necessary for Beneficiary to comply with an applicable law or regulation, to audit, at Beneficiary's sole cost and expense, Trustor's books of account and records relating to the Land, all of which will be made available to Beneficiary and Beneficiary's representatives for that purpose, from time to time, on Beneficiary's request. G. Further Assurances. Trustor, at Trustor's expense and at any time on the reasonable request of Beneficiary, will execute, acknowledge, and deliver any additional papers and instruments and any further assurances of title and will do or cause to be done all further acts and things that may be proper or reasonably necessary to carry out the purpose of this Deed of Trust and to subject to the liens any property intended by the terms to be covered and any renewals, additions, substitutions, replacements, or betterments. H. Statement by Trustor. Trustor, on ten (10) days' written request, will furnish a statement of the amount due or outstanding on the Developer Note and a statement of any offsets, counterclaims, or defenses to the payment. I. Indemnity. 1. If any action or proceeding (whether judicial, regulatory, or administrative) is threatened or commenced, except an action to foreclose this Deed of Trust or to collect the Loan: a. that affects the Land or any portion of it; b. for which Beneficiary is a party; or 394/015610-0026 111099.05 a12/13/00 8 in which it becomes necessary to defend or uphold the lien of this Deed of Trust; then all reasonable costs, fees, and expenses incurred by Beneficiary with respect to the action or proceeding (including, without limitation, reasonable attorney fees and expenses) will, within thirty (30) days after the submission of bills for the costs to Trustor, be paid directly to the billing party by Trustor. 2. In addition, Trustor agrees to pay all costs, including, without limitation, reasonable attorney fees and expenses, incurred by Beneficiary in enforcing the terms of this Deed of Trust, Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions, or the Affordable Housing Agreement. Trustor agrees to indemnify and hold Beneficiary harmless from all liability, loss, damage, or expense (including, without limitation, reasonable attorney fees) that it may incur under this Deed of Trust, or in connection with the Loan secured by this Deed of Trust, the enforcement of any of Beneficiary's rights or remedies, any action taken by Beneficiary under this Deed of Trust, or by reason or in defense of any claims and demands that may be asserted against Beneficiary arising out of the Collateral, unless caused by the negligence or willful misconduct of Beneficiary. J. Reimbursement. Beneficiary will have the right to declare immediately due any amount paid by it for any real property tax, stamp tax or assessment that affects the land and that was due and not paid by Trustor prior to delinquency. K. Litigation. Trustor will promptly give written notice to Beneficiary of any litigation commenced that materially affects the Land other than unlawful detainer proceedings brought by Trustor. L. Tax Receipts. Subject to the provisions of Section 4.4 of this Deed of Trust, Trustor will present to Beneficiary, within seven (7) days after written demand, bills (that will be receipted from and after the date receipted bills are obtainable) showing the payment to the extent then due of all taxes, assessments or any other Imposition that may have become a lien on the Land prior to the lien of this Deed of Trust. M. Additional Information. Trustor will furnish to Beneficiary, within seven (7) days after written request, all information that Beneficiary may request concerning the performance by Trustor of the covenants of the Affordable Housing Agreement, and Trustor will permit Beneficiary or its representatives at all reasonable times to make investigation or examination concerning that performance. 394/015610-0026 9 111099.05 a12/13/00 N. Right of Entry. Trustor grants to Beneficiary and its agents, employees, consultants, and contractors the right to enter on the Land, subject to the rights of any tenants of the Project, for the purpose of making any inspections, reports, tests (including, without limitation, soils borings, groundwater testing, wells, or soils analysis), inquiries, and reviews that Beneficiary, in its sole and absolute discretion, deems necessary to assess the then current condition of the Land and compliance with the Affordable Housing Agreement. Beneficiary will provide Trustor with one (1) Business Day's notice of the entry. However, Trustor's consent will not be required for entry or for the performance of tests. All costs, fees, and expenses (including, without limitation, those of Beneficiary's outside counsel and consultants) incurred by Beneficiary with respect to the inspections, reports, tests, inquiries, and reviews, together with all related preparation, consultation, analyses, and review, necessary for compliance with the Security Documents, will be paid by Trustor to Beneficiary on demand, will accrue interest at the Default Rate until paid, and will be secured by this Deed of Trust, prior to any right' title, or interest in or claim on the Land attaching or accruing subsequent to the lien of this Deed of Trust or to which this Deed of Trust is not subordinated. Beneficiary, if and when it uses the foregoing Right of Entry to enter upon the Land as set forth in this Section N, shall indemnify, defend, and hold Trustor harmless, from and against any and all claims, demands, losses, damages, causes of action, and costs, including attorney's fees incurred as a result of any claims or litigation, that arise out of the negligence or willful misconduct of Trustor or any of its officers, officials, employees, representatives, or agents in their activity upon the Land pursuant to this Right of Entry. 5.0 NEGATIVE COVENANTS Until the entire Loan has been paid in accordance with the terms of the Developer Note, Trustor covenants to and agrees with Beneficiary as follows: A. Restrictive Uses. Trustor covenants not to initiate, join in, or consent to any change in any zoning ordinance, private restrictive covenant, assessment proceedings, or other public or private restriction inconsistent with the Affordable Housing Agreement. B. Subordination to Other Financing. This Deed of Trust and all covenants, restrictions or regulatory agreements executed by Trustor in favor of Beneficiary in connection with the Land are expressly and shall be automatically subordinated to a deed of trust securing the repayment of construction financing for the development and construction of the Improvements. Trustor will not create or permit to continue in existence any mortgage, pledge, encumbrance, lien or charge of any kind on any of the Land except for: 1. liens for taxes not yet delinquent; and 2. any other liens or charges that are specifically approved in writing by Beneficiary, including any deed of trust executed or to be executed by Trustor or Trustor's 394/015610-0026 1 O 111099.05 a12/13/00 successor in interest and recorded in Riverside County, California, to secure a loan obtained for the purpose of the construction of any improvement on the Land contemplated by the Affordable Housing Agreement. Beneficiary agrees to reasonably accommodate Trustor's .construction and permanent lenders as may be commercially reasonably necessary to effect the Trustor's construction and permanent loans, including such subordination agreements as may be reasonably necessary. The Beneficiary's Executive Director shall have the authority to enter into one or more such subordination agreements on behalf of the Beneficiary provided and such subordination agreements are consistent with the requirements of Health and Safety Code Section 33334.14. C. Transferability. One of the inducements to Beneficiary for making the Loan is the identity of Trustor. The existence of any interest in the Land other than the interests of Trustor and Beneficiary and any encumbrance permitted in this Deed of Trust, even though subordinate to the security interest of Beneficiary, and the existence of any interest in Trustor other than those of the present owners, would impair the Land and the security interest of Beneficiary, and, therefore, Trustor will not sell, convey, assign, transfer, alienate, or otherwise dispose of its interest in the Land, either voluntarily or by operation of law, or agree to do so, except in accordance with the terms of the Affordable Housing Agreement. 6.0 ENVIRONMENTAL PROVISIONS A. Warranties and Covenants. Except as disclosed, in writing to, and acknowledged in writing by, the Beneficiary, Trustor represents and warrants that, to the best of Trustor's knowledge, except in the ordinary course of business, during the period of Trustor's ownership of the Land: (1) there has been no use, generation, manufacture, storage, treatment, disposal, discharge, Release, or threatened Release of any Hazardous Materials by any person on or around the Land; and (2) there have been no Hazardous Materials transported over or through the Land. Trustor agrees, except in the ordinary course of business and in strict compliance with all applicable Hazardous Materials Laws, as follows: 1. not to cause or permit the Land to be used as a site for the use, generation, manufacture, storage, treatment, Release, discharge, disposal, transportation, or presence of any Hazardous Materials; 2. not to cause, contribute to, permit, or acquiesce in any Release or threatened Release; 3. not to change or modify the use of the Land without the prior written consent of Beneficiary; 394/015610-0026 111099.05 a12/13/00 1 1 4. to comply with and to cause the Land and every User of the Land to comply with all Hazardous Materials Laws; 5. to immediately notify Beneficiary in writing and to provide Beneficiary with a reasonably detailed description of: a. any Hazardous Materials Claim; b. any Release or threatened Release; and C. the discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Land that would cause the Land or any part of it to be designated as hazardous waste property or border zone property under the provisions of Health and Safety Code §§ 25220, et seq. and any regulation adopted in accordance with that section; 6. in the event that Trustor discovers a Release or the presence of any Hazardous Materials on or about the Land in violation of any Hazardous Materials Law, to a. cause the Land to be in compliance with all Hazardous Materials Laws; b. notify Beneficiary of that discovery together with a reasonably detailed description; 7. promptly after a request by Beneficiary, engage a qualified environmental engineer reasonably satisfactory to Beneficiary to investigate these matters and prepare and submit to Beneficiary a written report containing the findings and conclusions resulting from that investigation, all at the sole expense of Trustor; and 8. take, at Trustor's sole expense, all necessary actions to remedy, repair, clean up, or detoxify any Release or Hazardous Materials, including, but not limited to, any remedial action required by any Hazardous Materials Laws or any judgment, consent, decree, settlement, or compromise in respect of any Hazardous Materials Claims, these actions to be performed: (1) in accordance with Hazardous Materials Laws; (2) in a good and proper manner, (3) under the supervision of a qualified environmental engineer; (4) in accordance with plans and specifications for these actions; and (5) using licensed and insured qualified contractors; 394/015610-0026 111099.05 a12/13/00 12 9. immediately furnish to Beneficiary copies of all written communications received by Trustor from any governmental authority or other person or given by Trustor to any person and any other information Beneficiary may reasonably request concerning any Release, threatened Release, Hazardous Materials Claim, or the discovery of any Hazardous Materials on or about the Land in violation of any Hazardous Materials Law; and 10. keep Beneficiary generally informed regarding any Release, threatened Release, Hazardous Materials Claim, or the discovery of any Hazardous Materials on or about the Land in violation of any Hazardous Materials Law. B. Inspection and Receivership Rights. Upon Beneficiary's reasonable belief that Trustor has failed to comply with any environmental provision of this Deed of Trust and upon reasonable prior notice (except in the case of an emergency) to Trustor, Beneficiary or its representatives, employees, and agents, may from time to time and at all reasonable times (or at any time in the case of an emergency) enter and inspect the Land and every part of it (including all samples of building materials, soil, and groundwater, and all books, records, and files of Trustor relating to the Land) and perform those acts and things that Beneficiary deems necessary to inspect, investigate, assess, and protect security of this Deed of Trust, for the purpose of determining: the existence, location, nature, and magnitude of any Release or threatened Release; 2. the presence of any Hazardous Materials on or about the Land in violation of any Hazardous Materials Law; and 3. the compliance by Trustor of every environmental provision of this Deed of Trust. In furtherance of the purposes above, without limitation of any of its other rights, Beneficiary may: a. obtain a court order to enforce Beneficiary's right to enter and inspect the Land under California Civil Code § 2929.5, to which the decision of Beneficiary as to whether there exists a Release, a threatened Release, any Hazardous Materials on or about the Land in violation of any Hazardous Materials Law, or a breach by Trustor of any environmental provision of this Deed of Trust, will be deemed reasonable and conclusive as between the parties; and b. have a receiver appointed under California Code of Civil Procedure § 564 to enforce Beneficiary's right to enter and inspect the Land for the purpose set forth above. All costs and expenses reasonably incurred by Beneficiary with respect to the audits, tests, inspections, and examinations that Beneficiary or its agents, representatives, or employees may conduct, including the fees of the engineers, laboratories, contractors, consultants, and 394/015610-0026 1 3 111099.05 a12/13/00 attorneys, will be paid by Trustor. All costs or expenses incurred by Trustee and Beneficiary pursuant to this subsection (including without limitation court costs, consultant's fees, and attorney fees, whether incurred in litigation and whether before or after judgment) will bear interest at the Default Rate from the date they are incurred until those sums have been paid in full. Except as provided by law, any inspections or tests made by Beneficiary or its representatives, employees, and agents will be for Beneficiary's purposes only and will not be construed to create any responsibility or liability on the part of Beneficiary to Trustor or to any other person. Beneficiary will have the right, but not the obligation, to communicate with any governmental authority regarding any fact or reasonable belief of Beneficiary that constitutes or could constitute a breach of any of Trustor's obligations under any environmental provision contained in this Deed of Trust. C. Release and Indemnity. Trustor: 1. releases and waives any future claims against Beneficiary for indemnity or contribution in the event Trustor becomes liable for cleanup or other costs under any Hazardous Materials Laws or under any Hazardous Materials Claim, except as otherwise provided in Sections 110(7), 212(3) and 212(4) of the Affordable Housing Agreement;' 2. agrees to reimburse Beneficiary, on demand, for all costs and expenses reasonably incurred by Beneficiary in connection with any review, approval, consent, or inspection relating to the environmental provisions in this Deed of Trust together with interest, after demand, in accordance with Section 212.3 of the Affordable Housing Agreement; and 3. agrees to indemnify, defend, and hold Beneficiary and Trustee harmless from all losses, costs, claims, damages, penalties, liabilities, causes of action, judgments, court costs, attorney fees and other legal expenses, costs of evidence of title, cost of evidence of value, and other expenses as set forth in Section 212.3 of the Affordable Housing Agreement. D. Request for Information. Trustor and Beneficiary agree that: 1. this Section D.l is intended as Beneficiary's written request for information and Trustor's written response concerning the environmental condition of the Land as provided by California Code of Civil Procedure § 726.5; and 2. each representation, warranty, covenant, or indemnity made by Trustor in this Article or in any other provision of this Deed of Trust that relates to the environmental condition of the Land is intended by Trustor and Beneficiary to be an environmental provision for purposes of California Code of Civil Procedure § 736 and will survive the payment of the Loan and the termination or expiration of this Deed of Trust will not be affected by Beneficiary's acquisition of any interest in the Land, whether by full credit bid at foreclosure, deed in lieu of that, or otherwise. If there is any transfer of any portion of Trustor's interest in the Land, any successor -in -interest to Trustor agrees by its succession to that interest that the written request made pursuant to this Article will be deemed remade to the successor -in -interest without any 394/01561O-0026 111099.05 a12/13/00 14 further or additional action on the part of Beneficiary and that by assuming the debt secured by this Deed of Trust or by accepting the interest of Trustor subject to the lien of this Deed of Trust, the successor remakes each of the representations and warranties in this Deed of Trust and agrees to be bound by each covenant in this Deed of Trust, including, but not limited to, any indemnity provision. 7.0 CASUALTIES AND CONDEMNATION A. Casualties. 1. Trustor will promptly notify Beneficiary in writing after any loss or damage caused by defect in Trustor's title to the Land and Trustor will furnish to Beneficiary within ninety (90) days after the loss or damage the following: a. evidence satisfactory to Beneficiary that such defect is cured; and b. evidence satisfactory to Beneficiary that sufficient funds are available or committed for the benefit of Beneficiary, including insurance proceeds, to secure the repayment of the full amount of the Loan if such repayment is not waived. Subject to the rights of Trustor's construction and permanent lender(s), all insurance proceeds shall be applied and used to restore, repair and rebuild the Improvements in accordance with the provisions of the Affordable Housing Agreement. Any proceeds not used for the repair, restoration, modification or improvement of the Land or the repayment of the construction or permanent loan(s) shall be applied, in the sole and absolute discretion of the Beneficiary, against the Loan. B. Condemnation. Trustor, immediately upon obtaining knowledge of the institution of any proceedings for the condemnation of the Land or any portion of it, will notify Trustee and Beneficiary of the pendency of the proceedings. Trustee and Beneficiary may participate in any proceedings and Trustor from time to time will deliver to Beneficiary all instruments requested by Beneficiary to permit participation. Beneficiary will be under no obligation to question the amount of any award or compensation. In any condemnation proceedings, Beneficiary may be represented by counsel selected by Beneficiary. The proceeds of any award or compensation received will be applied pursuant to the provisions of the construction or permanent loan documents and provisions of Section 7.1 of this Deed of Trust. 8.0 EVENTS OF DEFAULT AND REMEDIES A. Events of Default. The following events are each an Event of Default: 394/015610-0026 1 $ 111099.05 a12/13/00 1. Default in the payment of any sum of principal when due and not waived under the Developer Note which is not cured within the applicable cure period set forth therein; 2. A default under the Regulatory Agreement and Declaration of Covenants, Conditions, and Restrictions or the Affordable Housing Agreement which is not cured within the applicable cure period set forth therein; 3. The failure (without cure during the applicable period) of the Trustor to observe, perform, or discharge any obligation, term, covenant, or condition of this Deed of Trust; 4. The sale, hypothecation, conveyance, or other disposition of the Land except in accordance with Sections 5.0 of this Deed of Trust or in accordance with the Affordable Housing Agreement; and 5. Any representation or warranty made by Trustor or any other Person under this Deed of Trust is false or misleading in any material respect as of the date on which the representation or warranty was made. If one or more Events of Default occurs and are continuing, then Beneficiary may declare all the Loan to be due and the Loan will become due without any further presentment, demand, protest, or notice of any kind, and Beneficiary may: a. in person, by agent, or by a receiver, and without regard to the adequacy of security, the solvency of Trustor, or the existence of waste, enter on and take possession of the Land or any part of it in its own name or in the name of Trustee, sue for or otherwise collect the rents, issues, and profits, and apply them, less costs and expenses of operation and collection, including reasonable attorney fees, upon the Loan, all in any order that Beneficiary may determine. The entering on and taking possession of the Land, the collection of rents, issues, and profits, and the application of them will not cure or waive any default or notice of default or invalidate any act done pursuant to the notice; b. commence an action to foreclose this Deed of Trust in the manner provided by law for the foreclosure of mortgages of real property; C. deliver to Trustee a written Agreement of default and demand for sale, and a written notice of default and election to cause the Land to be sold, which notice Trustee or Beneficiary will cause to be filed for record; d. with respect to any Personalty, proceed as to both the real and personal property in accordance with Beneficiary's rights and remedies in respect of the Land, or proceed to sell the Personalty separately and without regard to the Land in accordance with Beneficiary's rights and remedies; or e. exercise any of these remedies in combination or any other remedy at law or in equity. 394/015610-0026 1 VL 111099.05 a12/13/00 B. Power of Sale. 1. If Beneficiary elects to foreclose by exercise of the power of sale in this Deed of Trust, Beneficiary will also deposit with Trustee this Deed of Trust, the Developer Note, and any receipts and evidence of expenditures made and secured as Trustee may require. If notice of default has been given as then required by law, and after lapse of the time that may then be required by law, after recordation of the notice of default, Trustee, without demand on Trustor, will, after notice of sale having been given as required by law, sell the Land at the time and place of sale fixed by it in the notice of sale, either as a whole or in separate parcels as Trustee determines, and in any order that it may determine, at public auction to the highest bidder. Trustee may postpone sale of all or any portion of the Land by public announcement at the time and place of sale, and from time to time after that may postpone the sale by public announcement at the time fixed by the preceding postponement, and without further notice make the sale at the time fixed by the last postponement; or Trustee may, in its discretion, give a new notice of sale. Beneficiary may rescind any notice of default at any time before Trustee's sale by executing a notice of rescission and recording it. The recordation of the notice will constitute a cancellation of any prior Agreement of default and demand for sale and of any acceleration of maturity of the Loan affected by any prior Agreement or notice of default. The exercise by Beneficiary of the right of rescission will not constitute a waiver of any default then existing or subsequently occurring, or impair the right of Beneficiary to execute other Agreements of default and demand for sale, or notices of default and of election to cause the Land to be sold, nor otherwise affect the Developer Note or this Deed of Trust, or any of the rights, obligations, or remedies of Beneficiary or Trustee. After sale, Trustee will deliver to the purchaser its deed conveying the property sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts will be conclusive proof of their truthfulness. Any Person, including Trustor, Trustee, or Beneficiary, may purchase at that sale. If allowed by law, Beneficiary, if it is the purchaser, may turn in the Developer Note at the amount owing on it toward payment of the purchase price (or for endorsement of the purchase price as a payment on the Developer Note if the amount owing exceeds the purchase price). Trustor expressly waives any right of redemption after sale that Trustor may have at the time of sale or that may apply to the sale. 2. Trustee, upon the sale, will make (without any covenant or warranty, express or implied), execute and, after due payment made, deliver to a purchaser and its heirs or assigns a deed or other record of interest, as the case may be, to the Land sold, which will convey to the purchaser all the title and interest of Trustor in the Land and will apply the proceeds of the sale in payment: a. first, of the expenses of the sale together with the expenses of the trust, including, without limitation, attorney fees, that will become due on any default made by Trustor, and also any sums that Trustee or Beneficiary have paid for procuring a search of the title to the Land subsequent to the execution of this Deed of Trust; and b. second, in payment of the Loan then remaining unpaid, and the amount of all other monies with interest in this Deed of Trust agreed or provided to be paid by Trustor. 394/015610-0026 111099.05 a12/13/00 1 Trustee will pay the balance or surplus of the proceeds of sale to Trustor and its successors or assigns as its interests may appear. C. Proof of Default. If there is a sale of the Land, or any part of it, and the execution of a deed for it, the recital of default and of recording notice of breach and election of sale, and of the elapsing of the required time between the recording and the following notice, and of the giving of notice of sale, and of a demand by Beneficiary that the sale should be made, will be conclusive proof of the default, recording, election, elapsing of time, and the due giving of notice, and that the sale was regularly and validly made on proper demand by Beneficiary. Any deed with these recitals will be effectual and conclusive against Trustor, its successors, and assigns, and all other Persons. The receipt for the purchase money recited or in any deed executed to the purchaser will be sufficient discharge to the purchaser from all obligations to see to the proper application of the purchase money. D. Protection of Security. If an Event of Default occurs and is continuing, Beneficiary or Trustee, without limitation to do so, without notice to or demand upon Trustor, and without releasing Trustor from any obligations or defaults may in the exercise of their reasonable discretion: 1. enter on the Land in any manner and to any extent that either deems necessary to protect the security of this Deed of Trust; 2. appear in and defend any action or proceeding purporting to affect, in any manner, the Obligations or the Loan, the security of this Deed of Trust, or the rights or powers of Beneficiary or Trustee; 3. pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of Beneficiary or Trustee is prior or superior to this Deed of Trust; and 4. pay necessary expenses, employ counsel, and pay reasonable attorney fees. Trustor agrees to repay on demand all sums expended by Trustee or Beneficiary pursuant to this section with interest at the Default Rate, and those sums, with interest, will be secured by this Deed of Trust. E. Receiver. If an Event of Default occurs and is continuing, Beneficiary, as a matter of strict right and without notice to Trustor or anyone claiming under Trustor and without regard to the then value of the Land, will have the right to apply ex parte to any court having jurisdiction to appoint a Receiver of the Land, and Trustor waives notice of any application for that, provided a hearing to confirm the appointment with notice to Trustor is set within fourteen (14) days after the appointment. Any Receiver will have all the powers and duties of receivers in similar cases and all the powers and duties of Beneficiary in case of entry as provided in this Deed of Trust, and 394/015610-0026 1 g 111099.05 a12/13/00 will continue as such and exercise all those powers until the date of confirmation of sale, unless the receivership is terminated sooner. F. Curing the Defaults. If Trustor at any time fails to perform or comply with any of the terms, covenants, and conditions required on Trustor's part to be performed and complied with under this Deed of Trust or the Developer Note, Trustor is required to perform, then Beneficiary, after ten (10) days' notice to Trustor (or without notice if Beneficiary determines that an emergency exists), and without waiving or releasing Trustor from any of the Obligations, may, subject to the provisions of any of the Security Documents: 1. make from its own funds any payments payable by Trustor and take out, pay for, and maintain any of the insurance policies provided for; and 2. perform any other acts on the part of Trustor to be performed and enter on the Land for that purpose. The making by Beneficiary of payments out of Beneficiary's own funds will not, however, be deemed to cure the default by Trustor, and they will not be cured unless and until Trustor reimburses Beneficiary for the payments. All sums paid and all reasonable costs and expenses incurred by Beneficiary in connection with the performance of any act, together with interest on unpaid balances at the Default Rate from the respective dates of Beneficiary's making of each payment, will be added to the principal of the Loan, will be secured by the Security Documents and by the lien of this Deed of Trust, prior to any right, title, or interest in or claim on the Land attaching or accruing subsequent to the lien of this Deed of Trust, and will be payable by Trustor to Beneficiary on demand. G. Inspection Rights. On reasonable notice (except in the case of an emergency), and without releasing Trustor from any obligation to cure any default of Trustor, Beneficiary or its agents, representatives, and employees acting by themselves or through a court -appointed receiver, may, from time to time and at all reasonable times (or at any time in the case of an emergency) enter and inspect the Land and every part of it and perform any acts and things as Beneficiary deems necessary or desirable to inspect, investigate, assess, and protect the security of this Deed of Trust, for the purpose of determining compliance with covenants and restrictions contained this Deed of Trust. H. Judgment on Environmental Provision. Beneficiary or its agents, representatives, and employees may seek a judgment that Trustor has breached its covenants, representations, or warranties in Article 6 of this Deed of Trustor any other covenants, representations, or warranties that are deemed to be environmental provisions pursuant to California Code of Civil Procedure § 736 (each an Environmental Provision), by commencing and maintaining an action or actions in any court of competent jurisdiction pursuant to California Code of Civil Procedure § 736, whether commenced prior to or after foreclosure of the lien of this Deed of Trust. Beneficiary or its agents, representatives, and employees may also seek an injunction to cause Trustor to abate any action in violation of 394/015610-0026 19 111099.05 a12/13/00 any Environmental Provision and may seek the recovery of all costs, damages, expenses, fees, penalties, fines, judgments, indemnification payments to third parties, and other out-of-pocket costs or expenses actually incurred by Beneficiary (collectively, "Environmental Costs") incurred or advanced by Beneficiary relating to the cleanup, remedy, or other response action required by any Hazardous Materials Law, or any Hazardous Materials Claim, or which Beneficiary believes necessary to protect the Land. It will be conclusively presumed between Beneficiary and Trustor that all Environmental Costs incurred or advanced by Beneficiary relating to the cleanup, remedy, or other response action of or to the Land were made by Beneficiary in good faith. All Environmental Costs incurred by Beneficiary under this subsection (including, without limitation, court costs, consultant fees, and reasonable attorney fees, whether incurred in litigation and whether before or after judgment) will bear interest at the legal rate from the date of expenditure until those sums have been paid in full. Beneficiary will be entitled to bid, at any trustee's or foreclosure sale of the Land, the amount of the costs, expenses, and interest in addition to the amount of the Loan. I. Waive Lien. Beneficiary or its agents, representatives, and employees may waive its lien against the Land or any portion of it, including the Improvements and the Land, to the extent that the Land is found to be environmentally impaired in accordance with California Code of Civil Procedure § 726.5, and to exercise all rights and remedies of an unsecured creditor against Trustor and all of Trustor's assets and property for the recovery of any deficiency and Environmental Costs, including, but not limited to, seeking an attachment order under California Code of Civil Procedure § 483.010. As between Beneficiary and Trustor, for purposes of California Code of Civil Procedure § 726.5, Trustor will have the burden of proving that Trustor or any related party (or any affiliate or agent of Trustor or any related party) was not in any way negligent in permitting the Release or threatened Release of the Hazardous Materials. J. Remedies Cumulative. All remedies of Beneficiary provided for in this Deed of Trust are cumulative and will be in addition to all other rights and remedies provided in any other Security Documents or the Affordable Housing Agreement or provided by law, including any banker's lien and right of offset. The exercise of any right or remedy by Beneficiary will not in any way constitute a cure or waiver of default, will not invalidate any act done pursuant to any notice of default, nor will it prejudice Beneficiary in the exercise of any of its rights unless, in the exercise of those rights, Beneficiary collects the total amount of the Loan. 9.0 SECURITY AGREEMENT A. Security Interest. The security interest includes all policies of insurance arising out of the ownership of the Land, and all accounts, contract rights, chattel paper, instruments, general intangibles, and other obligations of any kind now or later existing, arising out of, or in connection with the ownership and maintenance of the Land (the "Collateral"). The security interest also includes all rights now or later existing in all security agreements, leases, and other contracts securing or otherwise 394/015610-0026 20 111099.05 a12/13/00 relating to any accounts, contract rights, chattel paper, instruments, general intangibles, or obligations; all causes of action and recoveries now or later existing for any loss or diminution in value of the Land; all proceeds of any of the Land; and, to the extent not otherwise included, all payments under insurance (whether Beneficiary is the loss payee), or any indemnity, warranty, or guaranty payable by reason of loss or damage to or otherwise with respect to any of the Collateral. B. Remedies. Trustor agrees to execute and deliver on demand, and irrevocably constitutes and appoints Beneficiary the attorney -in -fact of Trustor to execute, deliver, and file, any security agreements, financing statements, continuation statements, or other instruments that Beneficiary may request to impose, perfect, or continue the perfection of the lien or security interest created by this Deed of Trust. Beneficiary has all rights and remedies, whether at law, in equity, or by statute that are available to secured creditors. Any disposition may be conducted by an employee or agent of Beneficiary or Trustee. Any Person, including both Trustor and Beneficiary, will be eligible to purchase any part or all of the Collateral at any disposition. C. Expenses. Expenses of retaking, holding, and preparing for sale, selling, or the like will be borne by Trustor and will include Beneficiary's and Trustee's attorney fees and legal expenses. Trustor, on demand of Beneficiary, will assemble the Collateral and make it available to Beneficiary at the Land, a place deemed to be reasonably convenient to Beneficiary and Trustor. Beneficiary will give Trustor at least ten (10) days' prior written notice of the time and place of any public sale or other disposition of the Collateral or of the time of or after which any private sale or any other intended disposition is to be made. If the notice is sent to Trustor in the manner provided for the mailing of notices in this Deed of Trust, it is deemed reasonable notice to Trustor. D. Assignment of Agreements. 1. As security for the Loan, Trustor sells, assigns, transfers, sets over, and delivers to Beneficiary (subject to the prior rights of any construction or permanent lender(s)) all of Trustor's right, title, and interest in all agreements, permits, and contracts pertaining to the ownership and maintenance of the Land, including, but not limited to, environmental impact reports; negative Agreements; map approvals; grading permits; conditional use permits; applications for all permits; management agreements; all development rights in the Land that Trustor may now or later acquire (including, without limitation, development rights arising in connection with any action by a governmental entity, including, by way of illustration, but not of limitation, inducement resolutions of county, municipal, or other governmental entities); agreements with contractors, suppliers, and construction managers; and agreements pertaining to the transfer of development rights or permitted floor area under applicable laws or ordinances (collectively, "Agreements"), as they may be amended or otherwise modified from time to time, including, without limitation, the right of Trustor to terminate any of the Agreements, to perform under them, and to compel performance and otherwise exercise all remedies under them, together with the immediate and continuing right to collect and receive all sums that may become due to Trustor, or which Trustor may now or later become entitled to demand or claim, 394/015610-0026 1 111099.05 a]2/13/00 arising or issuing out of the Agreements, including, without limitation, claims of Trustor for damages arising out of breach of or default under any of the Agreements and all rights of Trustor to receive proceeds of any insurance, indemnity, warranty, or guaranty with respect to any of the Agreements. However, so long as no Event of Default has occurred and is continuing, Trustor will have the right under a license granted to collect and retain all sums that may become payable to Trustor under the Agreements. 2. Trustor covenants and agrees to punctually observe, perform, and discharge the obligations, terms, covenants, conditions, and warranties to be observed, performed, and discharged by it under the Agreements. Beneficiary, upon an Event of Default, at its option and upon written notice to Trustor, will have the right to declare the assignment in this Section 9.4 to be absolute, and, in addition, Beneficiary will have the complete right then or later to exercise and enforce all of the rights and remedies provided by law. 3. The acceptance by Beneficiary of the assignment in this Article 9.5, with all the rights, powers, privileges, and authority granted will not, prior to the exercise of Beneficiary's right to declare the assignment in this Article 9.4 to be absolute, obligate Beneficiary to assume any obligations under the Agreements or to take any action under them, or to expend any money or incur any expense or perform or discharge any obligation, duty, or liability under the Agreements, or to assume any obligation or responsibility for the nonperformance of the provisions by Trustor. 10.0 ASSIGNMENT OF LEASES AND RENTS A. Assignment. Trustor irrevocably assigns to Beneficiary: 1. all of Trustor's right, title, and interest in all leases; licenses; agreements relating to the management, leasing, or operation of the Land; and other agreements of any kind relating to the use or occupancy of the Land, whether now existing or entered into after the date of this Deed of Trust; and 2. the rents, issues, and profits of the Land, including, without limitation, all amounts payable and all rights and benefits accruing to Trustor under any leases (the "Payments"), for the purposes and on the terms and conditions below. This is a present and absolute assignment, not an assignment for security purposes only, and Beneficiary's right to the leases and payments is not contingent on, and may be exercised without, possession of the Land. B. License. Beneficiary confers on Trustor a license (the "License") to collect and retain the Payments as they become due until the occurrence of an Event of Default. Upon an Event of Default, the License will be automatically revoked and Beneficiary may collect and retain the Payments without notice and without taking possession of the Land. The lessees will have no right or duty to inquire as to whether any Default has actually occurred or is then existing. 394/015610-0026 111099.05 a]2/13/00 22 Trustor relieves the lessees from any liability to Trustor by reason of relying on and complying with any notice or demand by Beneficiary. C. Effect of Assignment. The assignment will not impose on Beneficiary any duty to produce rents, issues, or profits from the Land, or cause Beneficiary to be: 1. a mortgagee -in -possession for any purpose; 2. responsible for performing any of the obligations of the lessor under any leases; or 3. responsible for any waste committed by lessees or any other parties, any dangerous or defective condition of the Land, or any negligence in the management, upkeep, repair, or control of the Land. Beneficiary will not be liable to Trustor or any other party as a consequence of the exercise of the rights granted to Beneficiary under this assignment. D. Leasing Covenants. Trustor covenants and agrees as follows: 1. At Trustor's sole cost to: a. perform all obligations of the lessor under the any leases and enforce performance by the lessees of their obligations under such leases; b. subject to the provisions of Section 10.4(b) below, enforce all remedies available to Trustor in case of default by the lessees under the leases and prosecute and defend any action, arbitration, or other controversy relating to the leases or to Trustor's interest in the leases; C. exercise diligent, good -faith efforts to keep all portions of the Land, if applicable, leased at all times and at rental rates set forth in the Affordable Housing Agreement; and d. promptly upon execution, deliver to Beneficiary fully executed counterpart originals of the leases; and 2. except in compliance with the terms of the Affordable Housing Agreement, not to enter into, assign, terminate, modify, or amend the terms of, any leases, or to assign the Payments, or to subordinate the leases to any other deed of trust or encumbrances. Any attempted action in violation of the provisions of this Section 10.4(b) will be voidable at Beneficiary's election. 394/015610-0026 23 111099.05 a12/13/00 E. Application of Rents. Beneficiary, in its sole discretion, may apply, or require the application of, all amounts received pursuant to the assignment to the payment of any one or more of the obligations in any order that Beneficiary may elect. F. Remedies. In addition to any other remedies in this Deed of Trust, Beneficiary will have the following rights and remedies upon the occurrence of an Event of Default: 1. To receive the Payments and any other amounts arising or accruing under the leases or from the Land; 2. To collect, sue for, settle, compromise, and give releases for the Payments and pursue any remedies for the enforcement of the leases or Trustor's rights under the leases; and 3. To take possession of the Land, and hold, manage, lease, and operate it on any terms and for any period of time that Beneficiary may deem proper and, either with or without taking possession of the Land, in its own name, make from time to time all alterations, renovations, repairs, or replacements that Beneficiary may deem proper. G. Definitions. The terms lessor and lessors as used in this Deed of Trust will include all owners, landlords, licensors, and other parties in a similar position with respect to the leases. The terms lessee and lessees will include any tenants and licensees and any other parties in a similar position and will also include any guarantor or other obligors under the leases. 11.0 MISCELLANEOUS A. Successor Trustee. Beneficiary may remove Trustee or any successor trustee at any time and appoint a successor trustee by recording a written substitution in the county where the Land is located, or in any other manner permitted by law. Upon that appointment, all of the powers, rights, and authority of Trustee will immediately become vested in the successor. B. No Waiver. No waiver by Beneficiary of any default or breach by Trustor will be implied from any omission by Beneficiary to take action on account of that default if the default persists or is repeated. Also, no express waiver will affect any default other than the default in the waiver and the waiver will be operative only for the time and to the extent stated. Waivers of any covenant, term, or condition in this Deed of Trust will not be construed as a waiver of any subsequent breach of the same covenant, term, or condition. The consent or approval by Beneficiary for any 394/015610-0026 24 111099.05 al2/13/00 act by Trustor requiring further consent or approval will not be deemed to waive or render unnecessary the consent or approval for any subsequent similar act. C. Abandonment. Subject to any chattel mortgages, security agreements, or other liens on title that may exist with the consent of Beneficiary, or any provided for in this Deed of Trust, all Personalty that upon foreclosure of the Land is owned by Trustor and is used in connection with the maintenance of the Land will be deemed at Beneficiary's option to have become on that date a part of the Land and abandoned to Beneficiary in its then condition. D. Notices . All notices, advices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, or denials that may be required or contemplated under this Deed of Trust for any party to serve on or give to any other will be in writing, and, if not in writing, will not be deemed to have been given. Also, they must be either personally served or sent with return receipt requested by registered or certified mail with postage (including registration or certification charges) prepaid in a securely enclosed and sealed envelope as follows: If to Trustor: DC & TC, LLC 71-084 Tamarisk Lane Rancho Mirage, CA 92270 Attn: Michael Shovlin If to Beneficiary: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Attention: Executive Director E. Survival. The covenants and agreements in this Deed of Trust will bind and inure to the benefit of Beneficiary and Trustor and their successors and assigns. It is agreed that Beneficiary may assign to or grant a participation in any one or more lenders, free from any right of counterclaim, recoupment, or setoff, by Trustor, Beneficiary's rights and obligations in whole or in part under the Security Documents. Nothing in this Section 11.5 is intended to limit other provisions in any other Security Documents or in the Affordable Housing Agreement or any recorded document that by their terms survive the repayment of the Loan or the termination of any Security Document. F. Severability. If any term, provision, covenant, or condition of this Deed of Trust or any application of it is held by a court of competent jurisdiction to be invalid, void, or unenforceable, in whole or in part, all terms, provisions, covenants, and conditions of this Deed of Trust and all applications of 394/015610-0026 25 111099.05 a12/13/00 it not held invalid, void, or unenforceable will continue in full force and will not be affected, impaired, or invalidated. G. References to Foreclosure. References in this Deed of Trust to foreclosure and related phrases are references to the appropriate procedure in connection with Trustee's private power of sale, any judicial foreclosure proceeding, and any deed given in lieu of foreclosure. H. Joinder of Foreclosure. If Beneficiary holds any other or additional security for the payment of any Loan or performance of any Obligation, its sale or foreclosure, on any default in the payment or performance, in Beneficiary's sole discretion, may be prior to, subsequent to, or joined or otherwise contemporaneous with any sale or foreclosure. In addition to the rights in this Deed of Trust specifically conferred, Beneficiary, at any time and from time to time, may exercise any right or remedy now or later given by law to beneficiaries under deeds of trust generally, or to the holders of any obligations of the kind secured. I. Rights of Beneficiary and Trustee. At any time and from time to time, without liability and without notice, and without releasing or otherwise affecting the liability of any person for payment of any of the Loan: 1. Beneficiary, at its sole discretion and only in writing, may extend the time for or release any Person now or later liable for payment of any of the Loan, or accept or release additional security, or subordinate the lien or charge of this Deed of Trust; or 2. Trustee, on written request of Beneficiary and presentation of the Developer Note, any additional notes secured by this Deed of Trust, and this Deed of Trust for endorsement, may reconvey any part of the Land, consent to the making of any map or plat of it, join in granting any easement on it, or join in any agreement of extension or subordination. On Beneficiary's written request and surrender of the Developer Note, any additional notes secured by this Deed of Trust, and this Deed of Trust to Trustee for cancellation, and on payment to Trustee of its fees and expenses, Trustee will reconvey without warranty the then trust property. The recitals in any reconveyance will be conclusive proof of the truthfulness of them, and the grantee in any reconveyance may be described as the person legally entitled. J. Copies. Trustor will promptly give to Beneficiary copies of: 1. all notices of violation that Trustor receives from any governmental agency or authority; and 2. all notices of default that Trustor receives under the Bond Documents. 394/015610-0026 111099.05 a12/13/00 26 K. Subordination to Contracts of Sale and Leases. At the option of Beneficiary, this Deed of Trust will become subject and subordinate, in whole or in part (but not with respect to priority of entitlement to any insurance proceeds, damages, awards, or compensation resulting from damage to the Land or condemnation or exercise of power of eminent domain), to any contracts of sale or any leases of the Land on the execution by Beneficiary and recording of a unilateral Agreement to that effect in the official records of the county and state where the Land is located. Beneficiary may require the issuance of any title insurance endorsements to the Title Policy in connection with any subordination that Beneficiary, in its judgment, determines are appropriate, and Trustor will be obligated to pay any cost or expense incurred in connection with the issuance. L. No Merger. So long as any of the Loan remains unpaid or Beneficiary has any further obligation under the Security Documents, unless Beneficiary otherwise consents in writing, the fee estate of Trustor in the Land or any part of it will not merge, by operation of law or otherwise, with any leasehold or other estate in the Land or any part of it, but will always be kept separate and distinct, regardless of the union of the fee estate and the leasehold or other estate in Trustor or any other Person. M Performance by Trustor. Trustor will faithfully perform every covenant to be performed by Trustor under any lien or encumbrance, including, without limiting the generality of this Deed of Trust, mortgages, deeds of trust, leases, Agreements or covenants, conditions and restrictions, and other agreements that affect the Land, in law or in equity, that Beneficiary reasonably believes may be prior and superior to or on a parity with the lien or charge of this Deed of Trust. A breach of or a default under any lien or encumbrance that exists after any applicable grace period in the pertinent instrument has expired without that breach or default having been cured, will constitute an Event of Default under this Deed of Trust. If Trustor fails to do so, Beneficiary, without demand or notice and in its sole judgment, may do any things required by Trustor by any of the provisions in this Deed of Trust and incur and pay expenses in connection with such provisions. Nothing in this section affects Trustor's obligations pursuant to Sections 5.2 and 5.3 of this Deed of Trust or limits Beneficiary's rights. N. Junior Liens. Trustor agrees: 1. that as of the date of this Deed of Trust there are no encumbrances to secure debts junior to this Deed of Trust; and 2. that there are to be none as of the date when this Deed of Trust becomes of record. 394/015610-0026 111099.05 a12/13/00 27 O. Waiver of Statute of Limitations. The pleading of any statute of limitations as a defense to any obligations secured by this Deed of Trust is waived, to the fullest extent permissible by law. P. Charges for Statements. Trustor agrees to pay Beneficiary's reasonable charge, to the maximum amount permitted by law, for any statement regarding the obligations secured by this Deed of Trust requested by Trustor or on its behalf. Q. Waiver of Marshaling Rights. 1. Trustor, for itself and for all parties claiming through or under Trustor, and for all parties who may acquire a lien on or interest in the Land, waives all rights to have the Land or any other property that is now or later may be security for any Obligation ("Other Land") marshaled on any foreclosure of this Deed of Trust or on a foreclosure of any other security for any of the Obligations. Beneficiary will have the right to sell, and any court in which foreclosure proceedings may be brought will have the right to order a sale of, the Land and any of the Other Land as a whole or in separate parcels, in any order that Beneficiary may designate. R. Acceptance of Trust; Powers and Duties of Trustee. Trustee accepts this trust when this Deed of Trust is recorded. From time to time on written request of Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the personal liability of any person for payment of any indebtedness or the performance of any obligations, Trustee may, without liability and without notice: reconvey all or any part of the Land; 2. consent to the making of any map or plat; and 3. join in any grant of easement, any Agreement of covenants, conditions, and restrictions, any extension agreement, or any agreement subordinating the lien or charge of this Deed of Trust. Except as may be required by applicable law, Trustee or Beneficiary may from time to time apply to any court of competent jurisdiction for aid and direction in the execution of the trust and the enforcement of the rights and remedies available, and may obtain orders or decrees directing, confirming, or approving acts in the execution of the trust and the enforcement of the remedies. Trustee has no obligation to notify any party of any pending sale or any action or proceeding, including, without limitation, actions in which Trustor, Beneficiary, or Trustee will be a party, unless held or commenced and maintained by Trustee under this Deed of Trust. Trustee will not be obligated to perform any act required of it under this Deed of Trust unless the performance of the act is requested in writing and Trustee is reasonably indemnified and held harmless against any loss, cost, liability, or expense. 394/015610-0026 2 p 111099.05 al2/13/00 O S. Releases, Extensions, Modifications, and Additional Security. Without notice to or the consent, approval, or agreement of any persons or entities having any interest at any time in the Land or in any manner obligated under the Obligations (the "Interested Parties"), Beneficiary may, from time to time, release any person or entity from liability for the payment or performance of any Obligation; take any action or make any agreement extending the maturity or otherwise altering the terms or increasing the amount of any Obligation; or accept additional security or release the Land or other security for any Obligation. None of these actions will release or reduce the personal liability of any of the Interested Parties, or release or impair the lien of this Deed of Trust, or the priority of it on the Land. However, no action taken or agreement made by Beneficiary to extend the maturity or otherwise alter the terms or increase the amount of any Obligation will be binding on Trustor without Trustor's consent. T. Reconveyance. Upon the payment of the Loan and performance of all Obligations, including, without limitation, Beneficiary's receipt of all sums owing and outstanding under the Developer Note, unless waived by the Beneficiary under the terms of the Developer Note, Beneficiary will deliver to Trustee a written request for reconveyance, and will surrender to Trustee for cancellation this Deed of Trust and any note or instrument evidencing the Loan and the Obligations. However, Beneficiary will have no obligation to deliver the written request and documents until Beneficiary has been paid by Trustor, in immediately available funds, all escrow, closing, and recording costs, the costs of preparing and issuing the reconveyance, and any trustee's or reconveyance fees. On Trustee's receipt of the written request by Beneficiary and the documents, Trustee will reconvey, without warranty, the Land or that portion then held. To the extent permitted by law, the reconveyance may describe the grantee as the person or persons legally entitled and the recitals of any matters or facts in any reconveyance will be conclusive proof of the truthfulness of them. Neither Beneficiary nor Trustee will have any duty to determine the rights of persons claiming to be rightful grantees of any reconveyance. When the Land has been fully reconveyed, the last reconveyance will operate as a reassignment of all future rents, issues, and profits of the Land to the person legally entitled. U. Subrogation. Beneficiary's rights will be subrogated to the lien of all encumbrances, whether released of record, paid in whole or in part by Beneficiary pursuant to this Deed of Trust, or by the proceeds of the Loan secured by this Deed of Trust. V. Obligations of Trustor Joint and Several. If more than one person has executed this Deed of Trust as Trustor, the obligations of all those persons will be joint and several. W. Rules of Construction. When the identity of the parties or other circumstances make it appropriate, the singular number includes the plural. 394/015610-0026 111099.05 a12/13/00 29 X. Successors in Interest. The terms, covenants, and conditions in this Deed of Trust will be binding on and inure to the benefit of the heirs, successors, and assigns of the parties. Y. No Offset. Trustor will pay to Beneficiary all amounts owing, if not waived, under the Developer Note, this Deed of Trust, or any of the other Obligations without deduction, offset, or counterclaim of any kind. Z. Governing Law. The parties expressly agree that this Deed of Trust (including, without limitation, all questions regarding permissive rates of interest) will be governed by or construed in accordance with the laws of the State of California. [end — signature page follows] 394/015610-0026 111099.05 a12/13100 30 In Witness Whereof, Trustor has executed this Deed of Trust as of the day and year first above written. TRUSTOR DC & TC, LLC By: Name: Its: BENEFICIARY LA QUINTA REDEVELOPMENT AGENCY :A Thomas P. Genovese Executive Director 394/015610-0026 111099.05 a]2/13/00 31 Exhibit "A" LEGAL DESCRIPTION REMAINDER PARCEL, OF TRACT NO. 28601-1, AS SHOWN BY MAP ON FILE IN BOOK 278, PAGES 86 THROUGH 90 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 394/015610-0026 111099.05 a12/13/00 32 STATE OF CALIFORNIA ) ss. COUNTY OF ) On , before me, a notary public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Name: [SEAL] 394/015610-0026 111099.05 a12/13/00 33 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , before me, a notary public, personally appeared satisfactory evidence) to be the person acknowledged to me that he/she execu personally known to me (or proved to me on the basis of whose name is subscribed to the within instrument and ed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Name: [SEAL] 394/015610-0026 34 111099.05 a]2/13/00 ATTACHMENT S REGULATORY AGREEMENT AND DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR PROPERTY [SEE FOLLOWING PAGES] 394/015610-0026 111099.05 a12/13/00 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:) La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Attention: Executive Director (Exempt from Recordation Fee per Gov. Code § 6103) REGULATORY AGREEMENT AND DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR PROPERTY THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR PROPERTY (the "Agreement") is made as of , by and between DC & TC, LLC, a California limited liability company (the "Participant") and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency" or "Agency" or "Beneficiary"). RECITALS A. Participant is fee owner of record of that certain real property (the "Property" or the "Site") located in the City of La Quinta, County of Riverside, State of California legally described in the attached Exhibit "A", which Property Participant acquired from Agency pursuant to a Grant Deed recorded concurrently herewith. Also recorded herewith was a Deed of Trust securing repayment by Developer of that certain promissory note in favor the Agency. B. This Agreement and the Grant Deed described in Recital A are part of a redevelopment project described in that certain Affordable Housing Agreement, dated , 2000, by and between Participant and Agency. As described in the Affordable Housing Agreement, the Property shall be developed by Developer with a 118-unit apartment complex for senior citizens to be operated in accordance with the Affordable housing Agreement and this Agreement. C. The Property is within the La Quinta Project Area (the "Project') in the City of La Quinta and is subject to the provisions of the "Redevelopment Plan" for the Project. D. The Community Redevelopment Law (California Health and Safety Code 33000 et seq.) provides that a redevelopment agency shall establish covenants running with the land in furtherance of redevelopment plans. 394/015610-0026 1 111099.05 a12/13/00 NOW, THEREFORE, the Participant and Agency declare, covenant and agree, by and for themselves, their heirs, executors, administrators and assigns, and all persons claiming under or through them, that the Site shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied, subject to the covenants and restrictions hereinafter set forth, all of which are established expressly and exclusively for the use and benefit of the Agency, the citizens of the City of La Quinta, and every person renting a dwelling unit on the Site. 1.0 DEFINITIONS. 1.1 Riverside County Median Income. For purposes of this Agreement, the "Riverside County Median Income" shall be determined by reference to the regulations published by the California Department of Housing and Community Development pursuant to Health and Safety Code Section 50093, or its successor. 1.2 Senior Citizen. For purposes of this Agreement, the term "Senior Citizen" shall mean the person, persons, or family that is/are an Eligible Tenant of a unit; provided however, that: 1.2.1 At least one member of the household residing permanently in the unit shall be sixty-two (62) years of age or older, and (ii) all other persons residing permanently in the household shall be a spouse, cohabitant, member of the immediate family, or person providing primary physical or economic support to the person who is sixty-two (62) years of age or older. The only other resident permitted in the same dwelling unit is a "Permitted Health Care Resident" (as that term is defined in California Civil Code Section 51.3) shall be permitted to occupy any dwelling unit during any period that such person is actually providing live-in, long- term, or hospice health care to a Senior Citizen occupant for compensation. 1.2.2 Temporary guests of a Senior Citizen shall be allowed for a maximum cumulative total of not more than sixty (60) days in any twelve (12) month period. 1.2.3 The Project is not available to "Qualified Permanent Residents" (as defined in California Civil Code Section 51.3) because there is no ownership interest in the Unit nor any expectation of an ownership interest. 1.3 Units. As used in this Agreement, the term "Units" shall mean the 118 rental apartment units for Senior Citizens to be developed on the Site. The term "Unit" shall mean one of the Units. 1.4 Affordable Units. As used in this Agreement, the term "Affordable Units" shall mean that portion of the 118 Units which shall be made available to, rented by, and occupied by Eligible Tenants". All of the units except for the manager's unit are Affordable Units. The term "Affordable Unit" shall mean one of the Affordable Units. An Affordable Unit shall not be used for the Manager Unit described in Section 2.6. 1.5 Moderate Income Senior Citizen Tenant. As used in this Agreement, the term "Moderate Income Senior Citizen Tenant" shall mean those Senior Citizens whose household income does not exceed one hundred twenty percent (120%) of the Riverside County Median Income. 394/015610-0026 2 111099.05 a12/13/00 1.6 Lower Income Senior Citizen Tenant. As used in this Agreement, the term "Lower Income Senior Citizen Tenant" shall mean those Senior Citizens whose household income does not exceed eighty percent (80%) of the Riverside County Median Income. 1.7 Very Low Income Senior Citizen Tenant. As used in this Agreement, the term "Very Low Income Senior Citizen Tenant" shall mean those Senior Citizens whose household income does not exceed fifty percent (50%) of the Riverside County Median Income. 1.8 Eligible Tenant. As used in this Agreement, the term "Eligible Tenant" shall refer to a Moderate Income Senior Citizen Tenant. 1.9 Affordable Rent. As used in this Agreement, the term "Affordable Rent" shall mean annual rentals whose amount does not exceed the maximum percentage of income that can be devoted to rent by an Eligible Tenant, as set by California law for two persons living in a one - bedroom unit and three persons living in a two -bedroom unit. 1.10 Tax Credit Regulatory Agreement. As used in this Agreement, the term "Tax Credit Regulatory Agreement" shall mean that agreement between the Developer or Developer's successor in interest and the State of California Tax Credit Allocation Committee ("TCAC") governing the allocation of Federal or State Low Income Housing Tax Credits to the Property as required under section 10337 (a) of California Code of Regulations, Title 4, Division 17, Chapter 1 as amended. 2.0 RESIDENTIAL RENTAL PROPERTY. Participant hereby agrees that the Project is to be owned, managed, and operated, for a term equal to fifty-five (55) years, commencing upon the date of the recordation of the Release of Construction Covenants for the Site in accordance with the AHA, as a one hundred eighteen (118) unit rental apartment project for Senior Citizens (other than the Manager Unit described in Section 2.6) made available to, rented by, and occupied by Eligible Tenants. To that end, and for the term of this Agreement, the Participant hereby represents, covenants, warrants and agrees as follows: 2.1 Development of the Site. Participant shall develop the Site with the senior apartments project thereon in accordance with the Agency Agreements, including the Schedule of Performance set forth in the AHA, for the purpose of providing housing for Senior Citizens with all of the Units (except one [1] Manager Unit) made available to, rented by, and occupied by Eligible Tenants. Participant shall own, manage, and operate the Project as a project to provide senior citizen rental housing comprised of a building(s) together with functionally related and subordinate facilities. 2.2 Facilities. All of the dwelling units in the Project shall contain facilities for living, sleeping, eating, cooking and sanitation in accordance with the this Agreement, the AHA, the Agency Agreements, applicable laws and regulations, and all of the permits and approvals for the Project, whichever of the foregoing is the more restrictive. 2.3 Residential Use. None of the dwelling units in the Project will at any time be utilized on a transient basis or will ever be used as a hotel, motel, dormitory, fraternity house, 394/015610-0026 111099.05 a12/13/00 3 sorority house, rooming house, nursing home, hospital, sanitarium, or trailer court or park, day care center, or non-residential uses (except permitted home occupations) without the Agency's prior written consent which consent may be given or withheld in its sole and absolute discretion. 2.4 Conversion of Units. No part of the Project shall at any time be owned by a cooperative housing corporation, nor shall the Participant take any steps in connection with the conversion to such ownership or uses to condominiums, or to any other form of ownership, without the prior written approval of Agency which approval may be given or withheld in its sole and absolute discretion. 2.5 Preference to Senior Citizens. All of the dwelling units will be available for rental in accordance with the terms of this Agreement, and the Participant shall not give preference to any particular class or group in renting the dwelling units in the Project, except to the extent that the dwelling units are required to be leased or rented to Senior Citizens (other than the Manager Unit described in Section 2.6) who are Eligible Tenants. 2.6 Resident Manager and Staff Units. One, and only one, Unit in the Project shall be occupied by a resident on -site manager (the "Manager"). The "Manager Unit" shall not be one of the Affordable Units nor shall be required to be rented to a Senior Citizen. 2.7 Liability of Participant. Participant and Manager shall not incur any liability under this Agreement as a result of fraud or intentional misrepresentation by a tenant. 3. OCCUPANCY OF PROJECT Participant hereby represents, warrants, and covenants as follows: 3.1 Occupancy Levels. Except as expressly provided herein, throughout the term of this Agreement, all of the Units (excluding the Manager Unit) shall be continuously occupied or held vacant and available for occupancy by Senior Citizens who are Eligible Tenants. 3.2 Rental Rates; Occupancy Levels. Participant hereby agrees to and shall rent the Affordable Units at no greater than Affordable Rent. Participant further agrees that no more than two (2) persons shall occupy each one -bedroom unit and no more than four persons shall occupy each two bedroom unit. 3.3 Targeted Households. Sixty percent (60%) of the Affordable Units shall be rented to Very Low Income Senior Citizen Tenants, eighty percent (80%) (inclusive of the sixty percent (60%) rented to Very Low Income Senior Citizen Tenants) of the Affordable Units shall be rented to Lower Income Senior Citizen Tenants, and one hundred percent (100%) (inclusive of the eighty percent (80%) rented to Lower Income Senior Citizen Tenants) of the Affordable Units shall be rented to Moderate Income Senior Citizen Tenants. 3.4 Occupancy By Eligible Tenant. A unit occupied by an Eligible Tenant who qualified as such at the commencement of the occupancy, shall be treated as occupied by an Eligible Tenant at such income level until a recertification of such Eligible Tenant's income in accordance with Section 3.8 below demonstrates that such tenant no longer qualifies as an 394/015610-0026 111099.05 a12/13/00 4 Eligible Tenant. A Unit previously occupied by an Eligible Tenant and then vacated shall be considered occupied by an Eligible Tenant until the Unit is reoccupied. 3.5 Income Computation Certificate. Immediately prior to an Eligible Tenant's occupancy of an Affordable Unit, Participant shall obtain and maintain on file an Income Computation and Certification form (which form shall be approved in advance by the Agency Executive Director) from each such Eligible Tenant dated immediately prior to the date of initial occupancy by such Eligible Tenant. In addition, Participant shall provide such further information as may be required in the future by the Agency. Participant shall use its best efforts to verify that the income provided by an applicant is accurate by taking the following steps as a part of the verification process: (i) obtain three (3) pay stubs for the most recent pay periods; (ii) obtain a written verification of income and employment from applicant's current employer; (iii) obtain an income verification form from the Social Security Administration and/or California Department of Social Services if the applicant receives assistance from either agency; (iv) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income as is satisfactory to the Agency; or (v) such other information as may be reasonably requested by the Agency. A copy of each such Income Computation and Certification shall be filed with the Agency prior to the occupancy of a unit by an Eligible Tenant whenever possible, but in no event more than thirty (30) days after initial occupancy by said tenant. Notwithstanding the above, during the period of effectiveness of the Tax Credit Regulatory Agreement applicable to the Site, Participant shall be permitted to comply with this Section 3.4 by complying with the income computation procedures set forth in the Tax Credit Regulatory Agreement. 3.6 Rental Priority. During the term of this Agreement, Participant shall use its best efforts to lease vacant Affordable Units to credit -worthy Eligible Tenants first to displaced persons entitled to a preference pursuant to California Health and Safety Code Section 33411.3 or successor statute who qualify as Eligible Tenants and who meet the other eligibility requirements of this Agreement; and second to other Senior Citizens who qualify as Eligible Tenants and who meet the other eligibility requirements of this Agreement. Participant shall,. and Agency may, maintain a list (the "Housing List") of Senior Citizens who have notified Participant and/or Agency of their desire to rent a unit in the Project, and Participant shall contact individuals on such Housing List and then determine eligibility. Should multiple tenants be equally eligible and qualified to rent an Affordable Unit, Participant shall rent available Affordable Units to Eligible Tenants on a first -come, first -served basis. 3.7 Recertification. As long as the Tax Credit Regulatory Agreement is in effect, Participant shall be deemed to satisfy the recertification requirements of this Section by submitting a copy of the TCAC recertification documents to Agency as long as the TCAC recertification documents require the same information as this Section. Upon termination of the Tax Credit Regulatory Agreement the recertification provisions of this Section shall control. Immediately prior to the first anniversary date of the occupancy of a Unit by an Eligible Tenant and on each anniversary date thereafter, Participant shall recertify the income of such Eligible Tenant by obtaining a completed Income Computation and Certification based upon the current income of each occupant of the Unit. In the event the recertification demonstrates that such household's income exceeds the income at which such household originally qualified, such household will no longer qualify as an Eligible Tenant. With respect to the household that no 394/015610-0026 5 111099.05 a12/13/00 longer qualifies as an Eligible Tenant, Participant shall be permitted to increase the rent of that Unit to market rates. The lease form used by Participant shall contain the foregoing provisions. Participant shall provide the Agency with a copy of each such recertification with the next submission of Certificate of Continuing Program Compliance pursuant to Section 3.8. 3.8 Certificate of Continuing Program Compliance. As long as the TCAC Regulatory Agreement is in effect, Participant shall be deemed to satisfy the Certificate of Continuing Program compliance requirements of this Section 3.7 by submitting a copy of the Certificate of Compliance required by the TCAC Regulatory Agreement to Agency, as long as the TCAC Certificate of Compliance requires the same information as this Section. Upon termination of the TCAC Regulatory Agreement the Certificate of Compliance provisions of this Section shall control. After termination of the TCAC Regulatory Agreement and upon the issuance of the Release of Construction Covenants and by September 1 of the immediately preceding fiscal year ending on June 1, Participant shall annually advise the Agency of the occupancy of the Project by delivering a Certificate of Continuing Program Compliance in the form attached hereto as Attachment No. 2 stating (i) the dwelling units of the Project which were occupied or deemed occupied by Eligible Tenants during such period and (ii) that to the knowledge of Participant either (a) no unremedied default has occurred under this Agreement, or (b) a default has occurred, in which event the Certificate shall describe the nature of the default and set forth the measures being taken by the Participant to remedy such default. After termination of the TCAC Regulatory Agreement, and in any year in which the TCAC Regulatory Agreement Certificate of Compliance does not provide the information required by this Section, Participant shall to pay Agency an annual fee pursuant to Health and Safety Code Section 33418(c) which shall not exceed FIVE HUNDRED DOLLARS ($500) as such amount shall be permitted to increase by the Consumer Price Index ("CPI") published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles -Long Beach - Anaheim Average, All Items (1984 ` 100), from and after the date of this Agreement, or the CPI is discontinued, such official index as may then be in existence and which is most nearly equivalent to the CPI. 3.9 Maintenance of Records. Participant shall maintain complete and accurate records pertaining to the Units, and shall permit, during normal business hours and upon reasonable notice, any duly authorized representative of the Agency to inspect the books and records of Participant pertaining to the Project including, but not limited to, those records pertaining to the occupancy of the Units. 3.10 Reliance on Tenant Representations. Each tenant lease shall contain a provision to the effect that Participant has relied on the income certification and supporting information supplied by the tenant in determining qualification for occupancy of the Unit, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease. 3.11 Conflicts. The leasing preference provision set forth in Section 3.5 shall apply only in the event, and to the extent, such provisions are not in conflict with Internal Revenue Code provisions, IRS regulations, the Low Income Tax Credit Program, or the TCAC Regulatory Agreement (as such terms are defined in the AHA). 394/015610-0026 6 111099.05 a12/13/00 3.12 Remedy For Excessive Rent Charge. 3.12.1 It shall constitute a default for Participant to charge or accept for An Affordable Unit rent amounts in excess of the amount provided for in Section 3.2 of this Agreement. In the event that Participant charges or receives such higher rental amounts, in addition to any other remedy Agency shall have for such default, Participant shall be required to pay to Agency an amount equal to two (2) times the entire amount of rent received in excess of the amount permitted pursuant to this Agreement. 3.12.2 It shall constitute a default for Participant to rent any Affordable Unit to a tenant who is not an Eligible Tenant. In the event Participant rents a unit to an ineligible tenant, in addition to any other equitable remedy Agency shall have for such default, Participant, for each separate violation shall be required to pay to Agency an amount equal to (i) two times the greater of (A) the total rent Participant received from such ineligible tenant, or (B) the total rent Participant was entitled to receive for renting that Affordable Unit, plus (ii) any relocation expenses incurred by Agency or the City of La Quinta as a result of Participant having rented to such ineligible person. 3.12.3 It shall constitute a default for Participant to rent any of the Units in violation of the leasing preference requirements of Sections 3.5 of this Agreement. In the event Participant rents a unit in violation of the leasing preference requirements, in addition to any other equitable remedy Agency shall have for such default, Participant, for each separate violation shall be required to pay Agency an amount equal to two (2) months of rental charges. The terms of this Section shall not apply if Participant rents to an ineligible person as a result of such person's fraud or misrepresentation. THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH IN SECTION 3.11 (THE "DAMAGE AMOUNTS") CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL DAMAGES THAT AGENCY WOULD SUFFER DUE TO THE DEFAULTS BY PARTICIPANT SET FORTH IN SECTIONS 3.11.1 THROUGH 3.11.3, CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE DAMAGE AMOUNTS TO THE RANGE OF HARM TO AGENCY AND ACCOMPLISHMENT OF AGENCY'S PURPOSE OF ASSISTING IN THE PROVISION OF AFFORDABLE HOUSING TO ELIGIBLE TENANTS THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE AMOUNTS SET FORTH IN THIS SECTION 3.11 SHALL BE THE SOLE MONETARY DAMAGES REMEDY FOR THE DEFAULTS SET FORTH IN THIS SECTION 3.11, BUT NOTHING IN THIS SECTION 3.11 SHALL BE INTERPRETED TO LIMIT AGENCY'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING ITS INITIAL AT THE PLACES PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL WHO HAS EXPLAINED THE 394/015610-0026 % 111099.05 a12/13/00 CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE TIME EACH EXECUTED THIS AGREEMENT. PARTICIPANT'S INITIALS: AGENCY'S INITIALS: 4. MAINTENANCE. 4.1 Maintenance Obligation. Participant agrees to and shall maintain all interior and exterior improvements, including landscaping, on the Site in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with the all permits and approvals for the Project, and all other applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. Agency places prime importance on quality maintenance to protect its investment and to ensure that all Agency - assisted affordable housing projects within the City are not allowed to deteriorate due to below - average maintenance. Maintenance standards shall include: (a) No improperly maintained landscaping shall be visible from public rights - of -way, including: (1) no lawns with grasses in excess of six (6) inches in height; (2) no trees, shrubbery, lawns, and other plant life dying from lack of water or other necessary maintenance; pruning; and (3) no trees, hedges, or shrubbery grown uncontrolled without proper (4) no vegetation so overgrown as to be likely to harbor rats or vermin; (5) no dead, decayed, or diseased trees, weeds, and other vegetation. (b) No yard areas shall be left umnaintained, including: (1) no broken or discarded furniture, appliances, and other household equipment stored in yard areas for periods exceeding one (1) week; (2) no packing boxes, lumber, trash, dirt, and other debris stored in yards for periods exceeding one (1) week in areas visible from public property or neighboring properties; (3) no unscreened trash cans, bins, or containers stored for unreasonable periods in areas visible from public property or neighboring properties; and 394/015610-0026 111099.05 a12/13/00 areas. (4) no vehicles parked or stored in areas other than approved parking (c) No buildings may be left in an unmaintained condition, including: (1) no violations of state law, Uniform Codes, or City ordinances; (2) no condition that constitutes an unsightly appearance that detracts from the aesthetics or property value of the subject property or constitutes a private or public nuisance; (3) no broken windows or chipped, cracked, or peeling paint; and (4) no conditions constituting hazards and/or inviting trespassers or malicious mischief; and (5) no graffiti. Normal wear and tear of the Site improvements will be acceptable to Agency assuming Participant agrees to perform all necessary Site improvements to assure the Site is maintained in good condition. Participant shall make all repairs and replacements necessary to keep the improvements in good condition and repair. The maintenance covenant contained in this Section shall remain in effect until the date that is fifty-five (55) years following the issuance of the Release of Construction Covenants. In the event that Participant breaches any of the covenants contained in this Section and such default continues for a period of ten (10) days after written notice from Agency (with respect to graffiti, debris, waste material, and general maintenance) or thirty (30) days after written notice from Agency (with respect to landscaping and building improvements), then Agency, in addition to whatever other remedy it may have at law or in equity, shall have the right, but not the obligation, to enter upon the Site and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Site, and to attach a lien on the Site, or to assess the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by Agency and/or costs of such cure, including a fifteen percent (15%) administrative charge, which amount shall be promptly paid by Participant to Agency upon demand. 4.2 Lien. If the costs incurred pursuant to Section 4.1 are not reimbursed within thirty (30) days after Participant's receipt of notice thereof, the same shall be deemed delinquent, and the amount thereof shall bear interest thereafter at a rate of ten percent (10%) per annum until paid. Any and all delinquent amounts, together with said interest, costs and reasonable attorney's fees, shall be a lien and charge, with power of sale, upon the property interests of Participant, and the rents, issues and profits of such property. Agency may bring an action at law against Participant obligated to pay any such sums or foreclose the lien against Participant's property interests. Any such lien may be enforced by sale by the Agency following recordation of a Notice of Default of Sale given in the manner and time required by law as in the case of a deed of trust; such sale to be conducted in accordance with the provisions of Section 2924, et seq., of the California Civil Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner permitted by law. 394/015610-0026 111099.05 a12/13/00 9 Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or deed of trust covering an ownership interest in and to the Site, and any purchaser at any foreclosure or trustee's sale (as well as any deed or assignment in lieu of foreclosure or trustee's sale) under any such mortgage or deed of trust shall take title free from any such monetary lien, but otherwise subject to the provisions hereof; provided that, after the foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the purchaser at the foreclosure sale, as owner of the subject parcel after the date of such foreclosure sale, shall become a lien upon such parcel upon recordation of a Notice of Assessment or Notice of Claim of Lien as herein provided. 5.0 RESERVE ACCOUNTS. 5.1 Capital Replacement Reserve. Participant shall comply with the following requirements pertaining to the creation and maintenance of a Capital Replacement Reserve: 5.1.1 Participant shall, or cause the Property Manager to, annually set aside the higher of $200 per unit per year, subject to annual increase in accordance with the CPI Adjustment, as hereinafter defined, or the amount required by the Tax Credit Regulatory Agreement, as reserves for replacement into a separate interest -bearing trust account (the "Capital Replacement Reserve"). The Capital Replacement Reserve deposit shall be the amount established by the Tax Credit Regulatory Agreement if that agreement requires it to override other agreements on this matter, and that Capital Replacement Reserve deposit shall continue in effect each year for the entire 55-year term of this Agreement regardless of whether Tax Credits remain applicable to the Property. Funds in the Capital Replacement Reserve shall be used for capital replacements to the Site's fixtures and equipment which are normally capitalized under generally accepted accounting principles. As capital repairs and improvements of the Site become necessary, the Capital Replacement Reserve shall be the first source of payment therefor; provided, however, that Participant may first use other funds for payment with the prior consent of Agency's Executive Director, which approval may be given or withheld in the Executive Director's sole and absolute discretion 5.1.2 The non -availability of funds in the Capital Replacement Reserve does not in any manner relieve Participant of the obligation to undertake necessary capital repairs and improvements and to continue to maintain the Site in the manner prescribed in this Agreement and in the AHA. Participant, at its expense, shall submit to the Executive Director on not less than an annual basis an accounting for the Capital Replacement Reserve. 5.1.3 Capital repairs to and replacement of items shall include only those items with a long useful life, including without limitation the following: (a) Carpet and drape replacement; (b) Appliance replacement; (c) Exterior painting, including exterior trim; (d) Hot water heater replacement; 394/015610-0026 10 111099.05 at2/13/00 (e) Plumbing fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; (f) Air conditioning and heating replacement; (g) Asphalt repair and replacement, and seal coating; (h) Roofing repair and replacement; (i) Landscape tree replacement and irrigation pipe and controls replacement; 0) Gas line pipe replacement; (k) Lighting fixture replacement; (1) Elevator replacement and upgrade work; (m) Miscellaneous motors and blowers; and (n) Common area furniture replacement, and common area repainting. 5.2 Operating Reserve. Participant, prior to the renting of any residential unit on the Site, shall establish and fund an operating reserve to insure sufficient operating funds in the event lease -up does not occur as rapidly as desired. The initial deposit shall be the higher of $150,000 or the amount established by the Tax Credit Regulatory Agreement. Unless a greater period is required to maintain the operating reserve, the initial operating reserve shall be maintained until the Project units are ninety percent (90%) rented. 6.0 MANAGEMENT. 6.1 On -Site Manager. Participant shall manage or shall cause the Site to be managed in a prudent and business -like manner, One (1) of the Units on the Site, which however shall not be one of the Affordable Units, shall be devoted to an on -site resident manager who shall be experienced and qualified in the management of a senior citizen apartment rental complex. Participant may contract with a management company or manager to operate and maintain the Site in accordance with the terms of this Agreement (hereinafter "Property Manager" or "Management Company"); provided, however, that the selection and hiring of such management company shall be subject to approval by Agency's Executive Director. Prior to obtaining such approval, Participant shall act as manager. Approval of a management company or manager by the Executive Director shall not be unreasonably withheld provided that the management company or manager has the requisite experience level and performance record. The management company or manage may be an affiliate of Participant subject to Section 22. 6.2 Gross Mismanagement. In the event of "Gross Mismanagement" (as that term is defined below) of the Project, Agency shall have the authority to require that such Gross Mismanagement cease immediately, and further to require the immediate replacement of the Manager. Agency shall provide written notice to Participant of the event(s) of Gross Mismanagement occurring and Participant shall have ten (10) days after receipt of such notice to 394/015610-0026 111099.05 a12/13/00 1 1 cure, correct, or remedy the event(s) of Gross Mismanagement identified in the Agency's notice and to notify the Agency's Executive Director of the cure, correction, or remedy. For purposes of this Agreement the term "Gross Mismanagement" shall mean management of the Project in a manner which violates the terms and/or intention of this Agreement to operate a senior citizen affordable housing complex of the highest standard, and shall include, but is not limited to, the following: 6.2.1 Knowingly leasing to ineligible tenants or tenants whose income exceeds the prescribed levels; 6.2.2 Knowingly allowing the tenants to exceed the prescribed occupancy levels without taking immediate steps to stop such overcrowding; 6.2.3 Failing to timely maintain the Project and the Site in the manner required by this Agreement or failing to submit materially complete reports; 6.2.4 Knowingly withholding the reports as required by this Agreement; 6.2.5 Fraud in connection with any document or representation relating to this Agreement or embezzlement of Project monies; and 6.2.6 Failing to fully cooperate with law enforcement in maintaining a crime - free environment on the Site. 6.3 Lease Approval. Agency shall have the right to approve any lease forms, revisions, amendments and modification made to same, used by Participant or the resident manager for leasing units within the Site, which approval shall not be unreasonably withheld. 7.0 COMPLIANCE WITH LAWS; ENVIRONMENTAL MATTERS. 7.1 Compliance With Laws. Participant shall comply with (i) all ordinances, regulations and standards of the City, Agency, County of Riverside, , any regional governmental entity, State of California, and federal government applicable to the Property; (ii) all rules and regulations of any assessment district of the City with jurisdiction over the Property; and (iii) all applicable labor standards of California law and federal law, including the payment of prevailing wages; and (iv) the requirements of federal laws with respect to the leasing of units or the employment of undocumented workers or illegal aliens. 7.2 Environmental Matters. 7.2.1 Definitions. For the purposes of this Agreement, unless the context otherwise specifies or requires, the following terms shall have the meanings herein specified: 7.2.1.1 The term "Hazardous Materials" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the County of Los Angeles, the State of California, a regional governmental authority, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under 394/015610-0026 111099.05 a12/13/00 12 Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. .1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C..6901 et seq. (42 U.S.C., 6903) or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C., 9601 et seq. 7.2.1.2 The term "Hazardous Materials Contamination" shall mean the contamination (whether presently existing or hereafter occurring) of the improvements, facilities, soil, groundwater, air or other elements on, in or of the Site by Hazardous Materials, or the contamination of the buildings, facilities, soil, groundwater, air or other elements on, in or of any other property as a result of Hazardous Materials at any time emanating from the Site. 7.2.1.3 The term "Governmental Requirements" shall mean all past, present and future laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the state, the county, the city, or any other political subdivision in which the Site is located, and any other state, county city, political subdivision, agency, instrumentality or other entity exercising jurisdiction over the Site. 7.2.2 Indemnity. Participant shall save, protect, defend, indemnify and hold harmless Agency and its officers, officials, members. employees, agents, and representatives from and against any and all liabilities, suits, actions, claims, demands, penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses, costs or expenses (including, without limitation, consultants' fees, investigation and laboratory fees, reasonable attorneys' fees and remedial and response costs) (the foregoing are hereinafter collectively referred to as "Liabilities") which may now or in the future be incurred or suffered by Agency and its officers, officials, members. employees, agents, or representatives by reason of, resulting from, in connection with, or existing in any manner whatsoever as a direct or indirect result of (1) the presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release from the Site of any Hazardous Materials or Hazardous Materials Contamination after the commencement of this Lease, including any Liabilities incurred under any Governmental Requirements relating to such Hazardous Materials or Hazardous Materials Contamination, and (2) the performance by Participant of any acts, including, but not limited to, the performance of any act required by this Agreement. 7.3 Duty to Prevent Hazardous Material Contamination. Participant shall take all necessary precautions to prevent the release of any Hazardous Materials into the environment. 394/015610-0026 13 111099.05 a12/13/00 Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, Participant shall install and utilize such equipment and implement and adhere to such procedures as are consistent with the standards generally applied by apartment complexes in Riverside County, California as respects the disclosure, storage, use, removal, and disposal of Hazardous Materials. 7.4 Obligation of Participant to Remediate Premises. Notwithstanding the obligation of Participant to indemnify Agency and its officers, officials, members, employees, agents, and representatives pursuant to Section 7.2.2, Participant shall, at its sole cost and expense, promptly take (i) all actions required by any federal, state, regional, or local governmental agency or political subdivision or any Governmental Requirements and (ii) all actions necessary to make full economic use of the Site for the purposes contemplated by this Agreement and the AHA, which requirements or necessity arise from the presence upon, about or beneath the Site of any Hazardous Materials or Hazardous Materials Contamination no matter when occurring. Such actions shall include, but not be limited to, the investigation of the environmental condition of the Site, the preparation of any feasibility studies or reports and the performance of any cleanup, remedial, removal or restoration work. Participant shall take all actions necessary to promptly restore the Site to an environmentally sound condition for the uses contemplated by this Agreement and the AHA notwithstanding any lesser standard of remediation allowable under applicable Governmental Requirements. 7.5 Environmental Inquiries. Participant, when it has received any notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, or cease and desist orders related to Hazardous Materials or Hazardous Materials Contamination, or when Participant is required to report to any governmental agency, any violation or potential violation of any Governmental Requirement pertaining to Hazardous Materials or Hazardous Materials Contamination, shall concurrently notify Agency's Executive Director, and provide to him/her a copy or copies, of the environmental permits, disclosures, applications, entitlements or inquiries relating to the Site, the notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self -reporting requirements, and reports filed or applications made pursuant to any Governmental Requirement relating to Hazardous Materials and underground tanks, and Participant shall report to the Executive Director, as soon as possible after each incident, any unusual, potentially important incidents. In the event of a release of any Hazardous Materials into the environment, Participant shall, as soon as possible after the release, furnish to the Executive Director a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon request of the Executive Director, Participant shall furnish to the Executive Director a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting the Site including, but not limited to, all permit applications, permits and reports including, without limitation, those reports and other matters which may be characterized as confidential. 8.0 INSURANCE. 8.1 Duty to Procure Insurance. Participant covenants and agrees for itself, and its assigns and successors -in -interest in the Site that from and after the date of this Agreement, and 394/015610-0026 111099.05 a12/13/00 14 continuing thereafter until the date that is fifty-five (55) years after the date of issuance of the Release of Construction Covenants, Participant or such successors and assigns shall procure and keep in full force and effect or cause to be procured and kept in full force and effect for the mutual benefit of Participant and Agency, and shall provide Agency evidence reasonably acceptable to Agency Executive Director, insurance policies meeting the minimum requirements set forth below: 8.1.1 Commercial General Liability insurance with respect to the Site and the operations of or on behalf of Participant, in an amount not less than Three Million Dollars ($3,000,000) per occurrence combined single limit including products, completed operations, contractual, bodily injury, personal injury, death and property damage liability per occurrence, subject to such increases in amount as Agency may reasonably require from time to time; provided, that the percentage increase in coverage shall not be required to exceed the percentage increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles -Long Beach -Anaheim Average, All Items (1984 ` 100) (the "Index"), from and after the date of this Agreement, or, if said Index is discontinued, such official index as may then be in existence and which is most nearly equivalent to said Index (the "CPI Adjustment"). Unless otherwise approved in advance by the Agency Executive Director, the insurance to be provided by Participant may provide for a deductible or self -insured retention of not more than Ten Thousand Dollars ($10,000), with such maximum amount to increase at the same rate as the periodic increases in the minimum amount of total insurance coverage set forth above. 8.1.2 With respect to the improvements and any fixtures and furnishings to be owned by Participant on the Site, All Risk Property insurance against fire, extended coverage, vandalism, and malicious mischief, and such other additional perils, hazards, and risks as now are or may be included in the standard "all risk" form in general use in Riverside County, California, with the standard form fire insurance coverage in an amount equal to full actual replacement cost thereof, as the same may change from time to time. The above insurance policy or policies shall include coverage for earthquake to the extent generally and commercially available at commercially reasonable rates. Agency shall be a loss payee under such policy or policies and such insurance shall contain a replacement cost endorsement. 8.2 Policy Requirements. All policies of insurance required to be carried by Participant shall meet the following requirements and contain the following endorsements, provisions, or clauses (as applicable): 8.2.1 The policies shall be written by responsible and solvent insurance companies licensed in the State of California and having a policyholder's rating of A or better, in the most recent addition of `Best's Key Rating Guide -- Property and Casualty." A copy of each paid -up policy evidencing such insurance (appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such policy has been issued, providing the coverage required herein, and containing the provisions specified herein, shall be delivered to Agency on or prior to the date of this Agreement, and thereafter, upon renewals, not less than thirty (30) days prior to the expiration of coverage. Agency may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Participant 394/015610-0026 15 111099.05 a12/13/00 hereunder. In no event shall the limits of any policy be considered as limiting the liability of Participant hereunder. 8.2.2 The insurer shall not cancel or materially alter the coverage provided by such policy in a manner adverse to the interest of the insured without first giving Agency a minimum of thirty (30) days prior written notice by certified mail, return receipt requested; and 8.2.3 A waiver by the insurer of any right to subrogation against Agency, its officers, officials, members, employees, agents, or representatives, which arises or might arise by reason of any payment under such policy or policies or by reason of any act or omission of Agency, its officers, officials, members, employees, agents, or representatives. 8.2.4 The Agency and its officers, officials, members, employees, agents, and representatives shall be named insureds on the Commercial General Liability policies. 8.2.5 The Agency shall be named as loss payee on the All Risk Property insurance policies. 8.2.6 Coverage provided by these policies shall be primary and non- contributory to any insurance carried by the Agency or its officers, officials, members, employees, agents, or representatives. 8.2.7 Failure to comply with reporting provisions shall not affect coverage provided to Agency and its officers, officials, members, employees, agents, or representatives. 8.3 Failure to Procure Insurance. If Participant fails to procure and maintain the above -required insurance despite its availability, then Agency, in addition to any other remedy which Agency may have hereunder for Participant's failure to procure, maintain, and/or pay for the insurance required herein, may (but without any obligation to do so) at any time or from time to time, after thirty (30) days written notice to Participant, procure such insurance and pay the premiums therefor, in which event Participant shall immediately repay Agency all sums so paid by Agency together with interest thereon at the maximum legal rate. 9.0 OBLIGATION TO REPAIR. 9.1 Obligation to Repair and Restore Damage Due to Casualty Covered by Insurance. Subject to Section 9.3 below, if the Project shall be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured against by Participant, Participant shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacement of the Project to substantially the same condition as the Project is required to be maintained in pursuant to this Agreement, whether or not the insurance proceeds are sufficient to cover the actual cost of repair, replacement, or restoration, and Participant shall complete the same as soon as possible thereafter so that the Project can continue to be operated and occupied as an affordable housing project in accordance with this Agreement. Subject to extensions of time for "force majeure" events described in the AHA, in no event shall the repair, replacement, or restoration period exceed one (1) year from the date Participant obtains insurance proceeds unless the Agency Executive Director, in his or 394/015610-0026 16 111099.05 a12/13/00 her sole and absolute discretion, approves a longer period of time. Agency shall cooperate with Participant, at no expense to Agency, in obtaining any governmental permits required for the repair, replacement, or restoration. If, however, the then -existing laws of any other governmental agencies with jurisdiction over the Property do not permit the repair, replacement, or restoration, Participant may elect not to repair, replace, or restore the Project by giving notice to Agency (in which event Participant shall be entitled to all insurance proceeds but Participant shall be required to remove all debris from the Property) or Participant may reconstruct such other improvements on the Property as are consistent with applicable land use regulations and approved by the City, Agency, and the other governmental agency or agencies with jurisdiction. If Participant . fails to obtain insurance as required by the AHA or this Agreement (and Agency has not procured such insurance and charged Participant for the cost), Participant shall be obligated to reconstruct and repair any partial or total damage to the Project and improvements located on the site in accordance with this Section 9.L 9.2 Continued Operations. During any period of repair, Participant shall continue, or cause the continuation of, the operation of the senior citizen apartment complex on the Site to the extent reasonably practicable from the standpoint of prudent business management. 9.3 Damage or Destruction Due to Cause Not Required to be Covered by Insurance. If the improvements comprising the Project are completely destroyed or substantially damaged by a casualty for which Participant is not required to (and has not) insure against, then Participant shall not be required to repair, replace, or restore such improvements and may elect not to do so by providing Agency with written notice of election not to repair, replace, or restore within ninety (90) days after such substantial damage or destruction. In such event, Participant shall remove all debris from the Property. As used in this Section 9.3, "substantial damage" caused by a casualty not required to be (and not) covered by insurance shall mean damage or destruction which is fifty percent (50%) or more of the replacement cost of the improvements comprising the Project. In the event Participant does not timely elect not to repair, replace, or restore the improvements as set forth in the first sentence of this Section 9.3, Participant shall be conclusively deemed to have waived its right not to repair, replace, or restore the improvements and thereafter Participant shall promptly commence and complete the repair, replacement, or restoration of the damaged or destroyed improvements in accordance with Section 9.1 above and continue operation of the apartment complex during the period of repair (if practicable) in accordance with Section 9.2 above. 10.0 LIMITATION ON TRANSFERS. 10.1 Sale or Transfer of the Project. Participant covenants that during the term of this Agreement, Participant shall not assign this Agreement or transfer the Site or any of its interests therein except as provided in this Section 10.0. 10.2 Transfer Defined. As used in this Section 10.0, the term "Transfer" shall include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this Agreement, the Site, or the improvements thereon except as permitted by this Agreement and the AHA. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) (in the aggregate) of the present ownership 394/015610-0026 1 111099.05 a12/13/00 and/or control of any person or entity constituting Participant, taking all transfers into account on a cumulative basis. In the event any entity constituting Participant, its successor or the constituent partners or members of Participant or any successor of Participant, is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation, or of beneficial interests of such trust. In the event that any entity constituting Participant, its successor or the constituent partners of Participant or any successor of Participant is a limited or general partnership, such transfer shall refer to the transfer of more than twenty- five percent (25%) of such limited or general partnership interest. In the event that any entity constituting Participant, its successor or the constituent members of Participant or any successor of Participant is a limited liability company, such transfer shall refer to the transfer of more than twenty-five percent (25%) of such membership interest. In the event that any entity constituting Participant, its successor or the constituent partners of Participant or any successor of Participant is a joint venture, such transfer shall refer to the transfer of more than twenty-five percent (25%) of the ownership and/or control of any such joint venture partner, taking all transfers into account on a cumulative basis. 10.3 Agency Approval of Transfer Required. Except as permitted by this Agreement and the AHA, Participant shall not Transfer this Agreement or any of Participant's rights hereunder, or any interest in the Site or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, without the prior written approval of Agency, which approval may be withheld in Agency's good faith discretion, and any such purported Transfer without such approval shall be null and void. Any consideration received by Participant in connection with an approved assignment or transfer shall be remitted to Agency and shall reduce the outstanding principal balance of the Agency Note. A Transfer for financing purposes shall not be approved by the Agency if the loan documents do not state that the loan proceeds must be used for the Project. 10.4 Assignment and Assumption Agreement. In the absence of specific written agreement by Agency, no Transfer by Participant of all or any portion of its interest in the Site or this Agreement shall be deemed to relieve Participant or any successor party from the obligation to complete the Project or any other obligations under this Agreement. In addition, no attempted Transfer of any of Participant's obligations hereunder shall be effective unless and until Participant and the successor party execute and deliver to Agency a binding assignment and assumption agreement in a form approved by the Agency's legal counsel. 11. OPTION TO REPURCHASE The Agency's option to repurchase the Property or individual lots thereof as set forth in Sections 513 of the Affordable Housing Agreement is incorporated herein and made a part hereof. 12. EVENTS OF DEFAULT BY PARTICIPANT. Subject to extensions of time pursuant to the terms of Section 23, the occurrence of one or more of any of the following events shall constitute an "Event of Default" by Participant hereunder if Participant shall have not cured, corrected, or remedied such failure within, unless a shorter or longer cure period is provided for specific defaults elsewhere in this Agreement, thirty 394/015610-0026 1 g 111099.05 a12/13/00 (30) days following the service on Participant of a written notice from Agency specifying the failure complained of, or if it is not practicable to cure or remedy such failure within such thirty (30) day period (which impracticality shall not apply to monetary defaults), within such longer period as shall be reasonable under the circumstances provided that Participant has commenced to cure within the same thirty (30) day period: 12.1 Construction of the work on the Site has not commenced within the time set forth in the AHA; or 12.2 Construction of the work on the Site is not completed within the time set forth in the AHA; or 12.3 Participant shall abandon or surrender the Site; or 12.4 Participant fails or refuses to pay, within ten (10) days of notice from Agency, any payment due Agency or any other sum due as may be required by this Agreement, the Agency Note, AHA, or any of the Agency Agreements. 12.5 Participant is in material default of any of the covenants, terms or provisions of this Agreement, the AHA, or any of the Agency Agreements; 12.6 Participant voluntarily files or has involuntarily filed against it any petition under any bankruptcy or insolvency act or law and the same not be dismissed within sixty (60) days thereafter; or 12.7 Participant is adjudicated a bankrupt; or 12.8 Participant makes a general assignment for the benefit of creditors in violation of the terms of this Agreement or any of the Agency Agreements. 13. REMEDIES OF AGENCY. In the event Participant defaults in the performance or observance of any covenant, agreement or obligation of Participant pursuant to this Agreement, and if such default remains uncured for a period of thirty (30) days after written notice thereof shall have been given by Agency (or such lesser period as may apply under Section 4.1), or, in the event said default cannot be cured within said time period, Participant has failed to commence to cure such default within the applicable time period and diligently prosecute said cure to completion, then Agency may declare an "Event of Default" to have occurred hereunder, and, at its option, may take one or more of the following steps: 13.1 Enter the Site and correct or cause to be corrected said default and charge the costs thereof (including costs incurred by Agency in enforcing this provision) to the account of Participant , which charge shall be due and payable within thirty (30) days after presentation by Agency of a statement of all or part of said costs, and if such bill is not timely paid then to place a lien on the Site for said amount due plus interest at the maximum legal rate; 394/015610-0026 1 n 111099.05 a12/13/00 7 13.2 Correct or cause to be corrected said default and pay the costs thereof (including costs incurred by Agency in enforcing this provision) from the proceeds of any insurance; 13.3 Exercise its right to maintain any and all actions at law or suits in equity to compel Participant to correct or cause to be corrected said default; 13.4 Have a receiver appointed to take possession of Participant's interest in the Site, with power in said receiver to administer Participant's interest in the Site, to collect all funds available to Participant in connection with its operation and maintenance of the Site, and to perform all other consistent with Participant's obligation under this Agreement as the court deems proper; 13.5 Terminate this Agreement by written notice to Participant and seek repayments of all principal and accrued interest then owing on the Agency Note. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by another party. 14.0 NONDISCRIMINATION. 14.1 Antidiscrimination. 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, or any part thereof, nor shall Participant, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site, or any part thereof (except as permitted by this Agreement). 14.2 Anti -Discrimination Clauses in Agreements. Subject to the tenancy/occupancy restrictions not prohibited by state or federal law as embodied in this Agreement, which may modify the following nondiscrimination clauses, including the provisions pertaining to age discrimination, the following shall apply: Participant agrees for itself and any successor in interest that Participant shall refrain from restricting the rental, sale, or lease of any portion of the Site, or contracts relating to the Site, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 14.2.1 In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any persons claiming under or through him, establish or permit any such 394/015610-0026 20 111099.05 a12/13/00 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." 14.2.2 In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons on account of status, race, color, creed, religion, sex, marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased." 14.2.3 In contracts: "There shall be no discrimination against or segregation of any persons or group of persons on account of status, race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of land." 15.0 COVENANTS TO RUN WITH THE LAND. Participant hereby subjects the Site to the covenants, reservations, and restrictions set forth in this Agreement. Agency and Participant hereby declare their express intent that all such covenants, reservations, and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon the Participant successors in title to the Site; provided, however, that on the termination of this Agreement said covenants, reservations and restrictions shall expire. All covenants without regard to technical classification or designation shall be binding for the benefit of the Agency, and such covenants shall run in favor of the Agency for the entire term of this Agreement, , without regard to whether the Agency is or remains an owner of any land or interest therein to which such covenants relate. Each and every contract, deed or other instrument hereafter executed covering or conveying the Site or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations, and restrictions, regardless of whether such covenants, reservations, and restrictions are set forth in such contract, deed or other instrument. Agency and Participant hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Participant's legal interest in the Site is rendered less valuable thereby. Agency and Participant hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Project by Eligible Tenants, the intended 394/015610-0026 111099.05 a12/13/00 21 beneficiaries of such covenants, reservations, and restrictions, and by furthering the public purposes for which the Agency was formed. Participant, in exchange for the Agency entering into the AHA, hereby agrees to hold, sell, and convey the Site subject to the terms of this Agreement. Participant also grants to the Agency the right and power to enforce the terms of this Agreement against the Participant and all persons having any right, title or interest in the Site or any part thereof, their heirs, successive owners and assigns. 16.0 INDEMNIFICATION. Participant agrees for itself and its successors and assigns to indemnify, defend, and hold harmless Agency, City, and their respective officers, officials, members, employees, agents, and representatives from and against any loss, liability, claim, or judgment relating in any manner to the Project excepting only any such loss, liability, claim, or judgment arising out of the intentional wrongdoing or gross negligence of Agency, City, or their respective officers,. officials, members, employees, agents, or representatives. The foregoing indemnification, defense, and hold harmless agreement shall only be applicable to and binding upon the party then owning the Property or applicable portion thereof. 17.0 UTILITIES AND TAXES. Participant, while in possession of the Property, and each successor or assign of Participant while in possession of the Property, shall remain fully obligated for the payment of (i) real and personal property taxes and assessments in connection with the Property, and (ii) all charges for all utilities serving the Property. �:��s:Tll�Cl � �75._►1�1'f.�i��7�.� In the event that a party to this Agreement brings an action against the other party hereto by reason of the breach of any condition, covenant, representation or warranty in this Agreement, or otherwise arising out of this Agreement, the prevailing party in such action shall be entitled to recover from the other expert witness fees, and its reasonable attorney's fees and costs. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, including the conducting of discovery. 19.0 AMENDMENTS. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County of Riverside. 20.0 NOTICE. Formal notices, demands, and communications between Agency and Participant shall be sufficiently given if personally delivered, delivered by a reputable same -day or overnight courier 394/015610-0026 22 111099.05 a12/13/00 services that provides a receipt showing date and time of delivery, or delivered by United States mail, registered or certified, postage prepaid, return receipt requested, to the following addresses: If to Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: M. Katherine Jenson, Esq. If to Participant: DC & TC, LLC 71-084 Tamarisk Lane Rancho Mirage, CA 92270 Attn: Michael Shovlin All notices personally delivered or delivered by messenger shall be deemed effective upon receipt, and mailed notices shall be effective as of the earlier of (i) actual receipt, or (ii) expiration of forty-eight (48) hours after depositing in the United States Postal System in the manner described in this Section. Such written notices, demands, and communications may be sent in the same manner to such other addresses as a party may from time to time designate by mail. 21. NONLIABILITY OF AGENCY OFFICIALS. No officer, official, member, employee, agent, or representative of Agency shall be personally liable to Participant, or any successor in interest, in the event of any default or breach by Agency or for any amount which may become due to Participant or successor or on any obligations under the terms of this Agreement or any of the Agency Agreements. 22. TRANSACTIONS WITH AFFILIATES. Participant shall have the right to enter into contracts with subsidiaries, affiliates and other related entities for the purpose of providing cleaning, maintenance and repair services, insurance policies and other purposes related to the operation of the Site, provided that all such costs and charges are competitive with the costs, charges, rent and other sums which would be paid by or to, as the case may be, an unrelated third party, and further provided that all such contracts and transactions are disclosed to Agency's Executive Director, including the costs and charges of such contracts and transactions. 394/015610-0026 111099.05 a12/13/00 23 23. SEVERABILITY/WAIVER/1NTEGRATION. 23.1 Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. 23.2 Waiver. A waiver by either party of the performance of any covenant or condition herein shall not invalidate this Agreement nor shall it be considered a waiver of any other covenants or conditions, nor shall the delay or forbearance by either party in exercising any remedy or right be considered a waiver of, or an estoppel against, the later exercise of such remedy or right. 23.3 Integration. This Agreement contains the entire Agreement between the parties concerning the subject matter hereof and neither party relies on any warranty or representation not contained in this Agreement. 24. ENFORCED DELAY; EXTENSIONS OF TIME. Performance by a party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; supernatural causes; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority litigation; unusually severe weather; inability to secure necessary labor, materials or tools; acts of the other party; acts or the failure to act of a public or governmental agency or entity (except that acts or the failure to act of Agency shall not excuse performance by Agency unless the act or failure is caused by the acts or omissions of Participant); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. In the event of such a delay (herein "Enforced Delay"), the party delayed shall continue to exercise reasonable diligence to minimize the period of the delay. An extension of time for any such cause shall be limited to the period of the Enforced Delay, and shall commence to run from the time of the commencement of the cause, provided notice by the party claiming such extension is sent to the other party within fifteen (15) days of the commencement of the cause. The following shall not be considered as events or causes beyond the control of Participant, and shall not entitle Participant to an extension of time to perform: (i) Participant's failure to obtain financing for the Project, (ii) Participant's failure to negotiate agreements with prospective tenants or users for the Project, or (iii) interest rates or economic or market conditions. Times of performance under this Agreement may also be extended by mutual written agreement by Agency and Participant. The Agency Executive Director shall also have the authority on behalf of Agency to administratively approve extensions of time not to exceed a cumulative total of one (1) year. 25. FUTURE ENFORCEMENT. The parties hereby agree that should the Agency cease to exist as an entity at any time during the term of this Agreement, the City of La Quinta shall have the right to enforce all of the terms and conditions herein, unless the Agency had previously specified another entity to enforce this Agreement. 394/015610-0026 24 111099.05 a]2/13/00 26. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 27. NO MERGER. The covenants, terms, and provisions of this Agreement shall not merge with any grant deed or other instrument pertaining to the conveyance of any interest in real property. 28. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall constitute one original and all of which shall be one and the same instrument. [end - signature page follows] 394/015610-0026 25 111099.05 a12/13/00 IN WITNESS WHEREOF, the Agency and Participant have executed this Regulatory Agreement and Agreement of Covenants, Conditions, and Restrictions For Property by duly authorized representatives on the date first written hereinabove. ATTEST: In Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Thomas Genovese Executive Director "Agency" DC & TC, LLC, a California limited liability company Name: Its: "Participant" 394/015610-0026 111099.05 a12/13/00 26 STATE OF CALIFORNIA ss. COUNTY OF On before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 394/015610-0026 Z 7 111099.05 al2/13/00 STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 394/015610-0026 p 111099.05 a12/13/00 O ATTACHMENT NO. 1 LEGAL DESCRIPTION OF SITE REMAINDER PARCEL, OF TRACT NO. 28601-1, AS SHOWN BY MAP ON FILE IN BOOK 278, PAGES 86 THROUGH 90 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 394/015610-0026 111099.05 a12/13/00 29 ATTACHMENT NO.2 CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE LA QUINTA REDEVELOPMENT AGENCY OF THE CITY OF LA QUINTA, CALIFORNIA Period Covered The undersigned, (the "Participant"), has read and is thoroughly familiar with the provisions of the Affordable Housing Agreement ("AHA") and documents referred to therein executed by Participant and La Quinta Redevelopment Agency ("Agency") including but not limited to the Regulatory Agreement, as such terms are defined in the AHA. As of the date of this Certificate, the following residential units in the Project (i) are occupied by Eligible Tenants (as such term is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date an Eligible Tenant vacated such unit; as indicated: Occupied Vacant Number of Eligible Tenants who commenced occupancy of the units during the preceding year: Attached is a separate sheet (the "Occupancy Summary") listing, among other items, the following information for each unit: the number of each unit, the occupants of each unit, and the rental paid for each unit. The information contained on the Occupancy Summary is true and accurate. 394/015610-0026 111099.05 a12/13/00 30 The undersigned hereby certifies that (1) a review of the activities of the Participant during such quarter and of the Participant's performance under the AHA and the documents referred to therein has been made under the supervision of the undersigned, and (2) to the best knowledge of the undersigned, based on the review described in clause (1) hereof, the Participant is not in default under any of the terms and provisions of the above documents [or on a separate sheet describe the nature of any detail and set forth the measures being taken to remedy such defaults]. "PARTICIPANT" By: Its: By: Its: 3941015610-0026 3 1 111099.05 a]2/13/00 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY REMAINDER PARCEL, OF TRACT NO. 28601-1, AS SHOWN BY MAP ON FILE IN BOOK 278, PAGES 86 THROUGH 90 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. 394/015610-0026 32 111099.05 a12/13/00 ATTACHMENT NO.9 CERTIFICATE OF COMPLETION [SEE ATTACHED PAGES] 394/015610-0026 111099.05 a12/13/00 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) (Exempt from Recording Fee Per Gov. Code § 6103) CERTIFICATE OF COMPLETION OF CONSTRUCTION AND DEVELOPMENT WHEREAS, by an Affordable Housing Agreement dated , 2000 ("Agreement"), by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (hereinafter referred to as the "Agency") and DC & TC, LLC, a California limited liability company ("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 the Agreement; and WHEREAS, pursuant to Section 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 real property described in Exhibit "A" hereto has been satisfactorily performed and completed and that such development and 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 real property described in Exhibit "A", or any part hereof. 3. This Certificate of Completion does not denote completion of any work required to be completed, other than on the real property described in Exhibit "A". 394/015610-0026 111099.05 al2/13/00 4. The Deed of Trust recorded as Instrument No. in the official records of the County of Riverside, and the Agreement of Covenants Conditions, and Restrictions recorded as Instrument No. in the official records of the County of Riverside, shall remain in full force and effect. 5. This Certificate of Completion is not a notice of completion as referred to in Section 3093 of the California Civil Code. IN WITNESS WHEREOF, the Agency has executed this Certificate as of this day of ATTEST: Agency Secretary LA QUINTA REDEVELOPMENT AGENCY By Executive Director CONSENT TO RECORDATION DC & TC, LLC, a California limited liability company, owner of fee title to the real property described in Exhibit "A" hereto, hereby consents to the recordation of this Certificate in the official records of Riverside County. DC & TC, LLC By: Name: Its: 394/015610-0026 L 111099.05 a12/13/00 STATE OF CALIFORNIA ) ss. COUNTY OF On , before me, a notary public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. LI-M [SEAL] NAME: 394/015610-0026 111099.05 a12/13/00 STATE OF CALIFORNIA ) ss. COUNTY OF ) On , before me, a notary public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. NAME: [SEAL] 394/015610-0026 111099.05 al2/13/00 ATTACHMENT NO. 10 PROJECT BUDGET [SEE FOLLOWING PAGE] 394/015610-0026 111099.05 a12113/00 ATTACHMENT NO. 10 PROJECT BUDGET LAND ACQUISITION Land 663,101 Legal fees — acquisition 25,000 Title & Closing — acquisition 11,999 LAND ACQUISITION 700,100 CONSTRUCTION Architecture & Engineering 546,125 Permits & Fees 1,359,084 Offsites & Demolition — Avenue 48 & Jefferson 250,000 Other 56,250 On-sites/infrastructure 1,870,579 Common Area/Landscaping 1,121,320 Base Construction 5,746,233 Models & Furnishings/Recreation Center 63,350 General Requirements/Supervision 392,407 Construction Contingency 766,559 Construction loan fee & interest 323,528 Indirect costs 240,000 Developer overhead 300,000 Developer fees 900,000 SUBTOTAL — CONSTRUCTION 13,935,435 LEASE UP/PERMANENT LOAN Marketing & Leaseup 8000 Permanent Operating Reserve 150,000 Lease up interest 468,569 Permanent financing costs 143,000 Syndication expense 15,000 Tax Credit Fees 56,984 SUBTOTAL — LEASE UP/PERMANENT LOAN 913,553 TOTAL COSTS 15,549,088 394/015610-0026 2 111099.05 a12/13/00 Construction Period: Construction Loan Deferred Developer Fees Tax Credit Equity Agency Assistance TOTAL Permanent Operations: Conventional First Mortgage Tax Credit Equity — Federal Tax Credit Equity — State Deferred Developer Fee* Agency Assistance TOTAL PROJECT BUDGET SOURCES OF FUNDS $6,878,519 1,090,000 1,580,569 6,000,000 $15,549,088 $2,700,000 5,033,925 1,615,163 200,000 6,000,000 $15,549,088 * To be paid from operating cash flow from the Project in initial years of operation. 394/015610-0026 3 111099.05 a12/13/00 ALLOCATION OF AGENCY ASSISTANCE The total Agency Assistance of $6,000,000 is allocated to the following project cost categories: 48`h & Jefferson improvements COMPLETED TO DATE $ 663,100 250,000 BALANCE REMAINING -0- utility fees & bond costs -0- 338,442 Planning 184,625 445,109 (includes legal, architecture & engineering, title, indirects) TOTAL ASSISTANCE $ 663,100 250,000 338,442 629,734 Site preparation 520,254 2,239,386* 2,759,640 Government fees 32,061 886,149 918,210 City Fees 18,025 422,849 440,874 TOTAL $1,668,065 $4,331,935 $6,000,000 *CVWD well site prorated cost of $47,494 and Jefferson median prorated cost of $13,250 to be deducted from Site preparation balance remaining. Agency Assistance to be paid as follows (see following page): 394/015610-0026 4 111099.05 a]2/13/00 7 ♦+ O O 00 O OCI N N N N 0� O 10 M 10 M 100 M 10 M M M S O O S S O .� b M N 8 S Q S `D I� DD O� O N N M N M V1 M 00 M V1 O � O N V1 �/1 V1 1� V1 �O �D V U a 0 � M �• O .--� O 00 O O N O O O O 00 N O aA ,. F.o o a �T Novo O O O 0 O 0 0 ov_S 7 O oC O O O O\ C V O o M o� 00 0 0 0 o v p o 00 0 0 o vi M 00 0 � F O O � �O M f+� 10 O -- O M O N O O M .--� O M r- 1� O �f [4 N 00 N N N rq N M f+i L. %0 R 7 F O GA R V h O\ T O ° w oN0 o ago oo0 0�0 T O a0 fV N N v C14 v � � .y U O a ., w �"' 2 IV ON C £' N O .•a O O� L en r •; ; M 00 V1 N en00 00 L O u 7 r+ a tn Qp y C R b N m r O Op O O �' R N M b pO 8 h p N M v�1 N M O H T d a N N IV W W w QL I., o- 0 00 O, v ON o O F e n R o 0,0 T++ •3 Q C d 7 D C R 4 O O y V 7 R I O O V 7 R 7 C a 00 en 00 8 00 M 00 O enM N M iJ 7 e ' o (0 L O O ._., ClO L N N S E a o 0 0 0 a co a E u N N d v u .�. .p H '� •L a T a T G Z C TA U u v u. e O •7 F F U 0 3 y cTl r aai v �o y 8 p •9 G � u L ° u� 00 Q .Z. y C 'O R N A m U 'D w a� •y u O O F G F 0 eFe O V p or F O a.. ° .E 0 7 .y •L C a 'aX 0) Br F F ai a n o 6Qa7 F , ° a c c y° c o 00 OG W $ o o s I pa y c� W Q a z o ea a8 aO oF oU v365 b aGca G L' wy oa m 0Uo o F Page 3 M, ATTACHMENT NO. 11 DISBURSEMENT PROCEDURES FOR PUBLIC IMPROVEMENT ASSISTANCE AND FEES ASSISTANCE Conditions for Each Disbursement. Prior to each and every disbursement, the following conditions shall be satisfied: a. Application. Developer shall have delivered the Application attached hereto as Exhibit "A" to the Agency Executive Director at least fifteen (15) business days prior to the requested disbursement. The Application shall be completed and certified to be accurate by Developer. The Application shall specifically identify the nature of each expense, by reference to items in the Budget, and shall identify the status of completion of such construction. b. Approval of Application. The Executive Director shall review and approve the Application and accompanying documents, and the Executive Director shall determine that the work is within the scope of the applicable section of the Budget within ten (10) business days. The Executive Director shall advise Developer of any issues within the ten (10) day period and shall pay all uncontested amounts requested by the Application within twenty (20) days of the receipt of the Application. C. Lien Waivers. Agency shall have received appropriate waivers of mechanics' and materialmen's lien rights and stop notice rights executed by all contractors and other persons rendering services or delivering materials covered by the requests made in the Application. d. Frequency. Agency shall not be obligated to make disbursements more frequently than once per month. e. Use of Disbursements. Developer shall use or apply all of the assistance set forth in this Attachment No. 15 solely for reimbursement or payment of the items described in the Application pursuant to which the disbursement was made. 394/015610-0026 111099.05 a12/13/00 EXHIBIT "A" TO ATTACHMENT NO. 11 FORM OF APPLICATION FOR DISBURSEMENT [SEE FOLLOWING PAGES] 394/015610-0026 111099.05 a12/13/00 TO: La Quinta Redevelopment Agency ("Agency") REQUEST NO. "DEVELOPER": DATE: PROJECT: MIRAFLORES — SENIOR APARTMENTS PROJECT Pursuant to Affordable Housing Agreement dated as of (the "Agreement") between Developer and Agency, Developer hereby requests that Agency disburse $ of the Agency Assistance pursuant to the Agreement and in particular the Disbursement Procedures set forth in Attachment No. 11 to the Agreement. This Disbursement is requested to pay for the expenses set forth below. Developer hereby certifies that the amounts shown on the attached schedule and the accompanying invoices represent costs incurred for improvements identified which are eligible for reimbursement at this time in accordance with the provisions of the Agreement. SUBMITTED BY: REVIEWED AND APPROVED BY: Item of Cost Date: Agency Inspector Date: DISBURSEMENT SCHEDULE Maximum Reimbursement Amount Amount Previously Amount Requested Disbursed this Disbursement 394/015610-0026 3 111099.05 a12/13/00 ATTACHMENT 12 DEVELOPER PUBLIC IMPROVEMENTS The following items are public improvements required of the Miraflores project, which is tract no. 28601-1 as shown on map on file in book 278, pages 86 through 90 of maps, records of Riverside County, California: 1. Sanitary sewer, storm drain, electrical, water, telephone, cable, and other utility distribution in Avenue 48 and Jefferson Streets as required by the respective utility agencies and companies, County of Riverside, and City of La Quinta. 2. Street improvements including grading, curb, gutter, sidewalk, median improvements, signs, and landscaping in Avenue 48 and Jefferson Street as required by Riverside County and the City of La Quinta. 3. Perimeter wall surrounding the Miraflores project. 4. In tract streets, curbs, gutters, utility distribution, landscaping, and other public improvements as required by the respective utility companies and City of La Quinta. 5. Off -site water well site and improvements as required by the Coachella Valley Water District ("CVWD"). 6. Retention basins with appropriate drainage systems as required by the CVWD. 7. Other improvements as may be required by the City of La Quinta, County of Riverside, or respective utility companies and agencies as part of the permitting process. Improvements as specified under paragraphs 1 through 6 above have been previously completed except for those items remaining to be completed referenced in Attachment 15 to that Affordable Housing Agreement dated September 19, 2000 between the La Quinta Redevelopment Agency ("Agency") and DC & TC, LLC ("Developer"). The following amounts will be charged against the SA Development budget for its prorata share of the costs of the public improvements: Jefferson Street and Avenue 48 off -site improvements - $ 250,000 Contract services — planning 184,625 Contract services — site preparation, in -tract 520,254 Administrative fees, government fees 32,061 Administrative fees, City fees 18,025 CVWD off -site well site improvements 47,494 Jefferson Street and Avenue 48 median improvements 13,250 TOTAL PUBLIC IMPROVEMENTS BY OTHERS TO BE CHARGED TO THE SA DEVELOPMENT $1,065,709 394/015610-0026 1 111099.05 a12/13/00